Diogenes Editions, Inc. v. STATE, BD. OF TRUSTEES OF INSTITUTIONS

700 So. 2d 316, 1997 WL 590119
CourtMississippi Supreme Court
DecidedSeptember 25, 1997
Docket95-CA-01070-SCT
StatusPublished
Cited by12 cases

This text of 700 So. 2d 316 (Diogenes Editions, Inc. v. STATE, BD. OF TRUSTEES OF INSTITUTIONS) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diogenes Editions, Inc. v. STATE, BD. OF TRUSTEES OF INSTITUTIONS, 700 So. 2d 316, 1997 WL 590119 (Mich. 1997).

Opinion

700 So.2d 316 (1997)

DIOGENES EDITIONS, INC. and Roland L. Freeman
v.
STATE of Mississippi, By and Through BOARD OF TRUSTEES OF INSTITUTIONS OF HIGHER LEARNING as Trustees for the University of Mississippi.

No. 95-CA-01070-SCT.

Supreme Court of Mississippi.

September 25, 1997.

*317 Joshua J. Wiener, Jackson, for Appellants.

Michael C. Moore, Attorney General, Jackson; Mary Ann Connell, Sp. Asst. Attorney General, University; J. Cal Mayo, Jr., Sp. Asst. Attorney General, University of Mississippi, Oxford, for Appellee.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

¶ 1. Appellants, Diogenes Editions, Incorporated (hereinafter, Diogenes) and Roland Freeman, appeal the judgment of the Hinds County Circuit Court wherein the trial court granted summary judgment to the appellee, the State of Mississippi, by and through the Trustees for the Institutions of Higher Learning and the University of Mississippi and the Center for the study of Southern Culture (hereinafter, the Center or the University). Appellants claimed that the trial judge erred in finding that no issues of material dispute existed which would warrant a finding for the appellants. We affirm in part; reverse and remand in part this case based upon the fact that the University missed its contractually scheduled production deadline. Due to the fact that a breach existed on the part of the University, it is a jury question as to the effect of that breach upon the damages claimed by the appellants. The question of whether the marketing efforts of the University were active and diligent or timely as required by the contract is also one for the jury.

FACTS

¶ 2. This case involves a contract between the parties, Roland Freeman, an internationally renowned documentary photographer, Diogenes editions, Inc., a photographic technical production company owned by D. Gorton, and the University of Mississippi through its Center for the Study of Southern Culture, a division of the University dedicated to the preservation of southern art, music and literature.

¶ 3. In the summer of 1992, Gorton began discussions with William Ferris, director of the Center, concerning entering into a contract for the production of a limited edition portfolio of the works of Roland Freeman. Before the Freeman project, Diogenes Editions had successfully produced a limited edition portfolio of photographs by Eudora Welty. The Welty Portfolios were successfully marketed through a three party agreement between Ms. Welty, Diogenes, and the Mississippi State Department of Archives. The contract for the Freeman portfolios, which was based upon the one used in the Welty project, was signed by Freeman, Diogenes, and the Center on November 23, 1992.

¶ 4. In pertinent part, the contract set forth that Freeman, Diogenes, and the Center agreed to produce forty-five Portfolios of Freeman's photographic work. Each portfolio was to contain twelve black and white photographic prints which were to be 16 X 20 inches in size. All portfolios and prints were to be numbered, and each print was to be embossed by Diogenes with a seal mutually agreeable to all the parties. Diogenes was to perform all of the negative work at his own expense. The Center was to advance the funds for the purchase of the portfolio cases and packaging of the portfolios. Cost of the packaging materials was to be split on a one-third basis, to be deducted by the Center on the sale of the first portfolios.

¶ 5. A publication date (defined as "the first date upon which any of the portfolios may be sold.") was established by the parties as "no later than December 31, 1992." On the publication date, twenty four of the portfolios were to be offered under a "joint marketing arrangement" for a period of six months. During this six month period, the Center was to serve as the sole sales agent and honor orders made or postmarked on or before the last day of the joint marketing period. During the joint marketing period, the price of each portfolio was set at $5,000.

¶ 6. The remaining twenty one portfolios were to be distributed equally among the Center, Freeman, and Diogenes on the publication date, but were not to be sold until *318 after the expiration of the joint marketing period, and for one year thereafter, could not be sold for any price less than $5,000.

¶ 7. The Center was to be "primarily responsible" for the marketing activities associated with the Freeman project. Included among its duties was the requirement to produce, at its expense, a brochure featuring all of the prints along with purchasing information to be sent to interested parties. It was to publish information regarding the portfolios in its newsletter, the Southern Register, and was to use other methods of communication to inform the public, media, and other institutions of the availability and price of the portfolios being offered during the joint marketing period. It was to request that the news media run stories about the portfolios. Within reason, all parties were to be available for interviews and other public relations and promotional activities. The parties specifically agreed that the contract constituted the entire agreement between the parties, and was not to be altered unless in writing and such changes endorsed by all the parties.

¶ 8. In late December, 1992, Diogenes completed the development of the images and attempted to deliver them to the Center. However, it was the Christmas holidays and no one was at the Center who could take the prints before December 31, as required in the contract. Gorton called Ann Abadie, a worker on the project at the Center, who told him to deliver the prints on January 13, 1993, which he did.

¶ 9. The Center did not send out bid requests for the packaging for the prints until February, 1993. The Center's reasoning was that as a State institution, they were statutorily required to get bids on projects costing between $500 and $5,000. When they submitted the bids, only the Harcourt Bindery submitted a bid. Since the Center had to have at least two bids, they called other firms to see if they were interested in bidding on the project. When none were interested, the Center awarded the packaging contract to the Harcourt Bindery.

¶ 10. During the joint marketing period, the Center issued a press release touting the yet to be completed portfolios (although no articles which were dated before July 29, 1993 appeared in the record), wrote an article publicizing the portfolios for the Southern Register, and Ferris contacted several friends in the media appealing for support and publicity for the project.

¶ 11. In March, 1993, Gorton, concerned about the lack of results coming from the Center, and the fact that the prints had yet to be packaged, contacted Ferris concerning the project. Ferris sent him a letter stating that the problem was the bid process, and enclosed a copy of the article in the Southern Register. On May 28, Gorton sent a letter to Ferris encaptioned "notice of default." Therein he complained that the responsibility to comply with the State bid procedures was that of the Center and did not affect the Center's duty to comply with the terms of the contract. The letter also listed other perceived slights and problems with the Center's handling of the project, including that the marketing brochures were not completed, no portfolios had been sold and that in general, marketing of the project had been minimal. He also complained of the Center's failure to keep him abreast of the progress of the project.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cindy Henderson v. Copper Ridge Homes, LLC
273 So. 3d 750 (Mississippi Supreme Court, 2019)
ECO Resources, Inc. v. City of Horn Lake
379 F. App'x 326 (Fifth Circuit, 2010)
Foss v. Williams
993 So. 2d 378 (Mississippi Supreme Court, 2008)
Johnson v. Thomas Ex Rel. Polatsidis
982 So. 2d 405 (Mississippi Supreme Court, 2008)
Michael L. Foss v. Dorothy Williams
Mississippi Supreme Court, 2007
Willie C. Johnson v. Brandy N. Thomas
Mississippi Supreme Court, 2006
Robinson v. Singing River Hosp. System
732 So. 2d 204 (Mississippi Supreme Court, 1999)
Mississippi Transp. Com'n v. SCI, INC.
717 So. 2d 332 (Mississippi Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
700 So. 2d 316, 1997 WL 590119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diogenes-editions-inc-v-state-bd-of-trustees-of-institutions-miss-1997.