Luxe Homes, LLC and Jade Reese v. Robert Brewer and Gloria Brewer

• Court: Mississippi Supreme Court
• Decided: April 13, 2023
• Docket: 2022-IA-00132-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2022-IA-00132-SCT

LUXE HOMES, LLC, AND JADE REESE

v.

ROBERT BREWER AND GLORIA BREWER

DATE OF JUDGMENT: 01/21/2022 TRIAL JUDGE: HON. DENISE OWENS TRIAL COURT ATTORNEYS: LA’TOYIA J. SLAY ROBERT M. FREY F. RUSSELL BRABEC ARTHUR F. JERNIGAN, JR. COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: F. RUSSELL BRABEC ARTHUR F. JERNIGAN, JR. ATTORNEYS FOR APPELLEES: ROBERT M. FREY LA’TOYIA J. SLAY NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: REVERSED AND REMANDED - 04/13/2023 MOTION FOR REHEARING FILED:

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. This case originated from a contract between Luxe Homes, LLC (Luxe Homes), and

Robert and Gloria Brewer (the Brewers) for the construction and conveyance of a house in

Hinds County. The Brewers allege Luxe Homes failed to comply with the terms of the

contract, and they filed the present action in the Hinds County Chancery Court for specific

performance, damages, fees and a declaratory judgment. Luxe Homes claimed in a motion

to transfer venue that, according to the terms of the contract, the parties agreed to Rankin County Circuit Court as their exclusive forum. The chancellor denied the motion to transfer

venue, and Luxe Homes petitioned for interlocutory appeal. This Court granted the petition.

We find that the chancellor abused her discretion by denying Luxe Homes’ motion to transfer

venue when the venue clauses, agreed to by the parties, unambiguously require that the

parties resolve their disputes exclusively in Rankin County Circuit Court. Accordingly, this

Court reverses the order of the chancellor and remands this case with instructions to transfer

venue to Rankin County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2021, Luxe Homes contracted with the Brewers to build them a home in

Hinds County. The Brewers were represented in the sale by Century 21 Maselle &

Associates (Century 21). Century 21 prepared a form contract that was filled out with details

of the agreement. One such provision required the property and residence to be conveyed

to the Brewers by May 21, 2021. Due to COVID-19, inclement weather and various other

reasons, the property was not completed and conveyed by the agreed deadline.

¶3. On June 28, 2021, the Brewers filed suit against Luxe Homes in Hinds County

Chancery Court for breach of contract, negligent and intentional misrepresentation and a

declaratory judgment.1 The Brewers requested specific performance, reasonable attorneys’

fees, general damages, special damages and punitive damages. As of the date of the filing

of the complaint, the Brewers alleged that construction had not even substantially begun.

¶4. On November 8, 2021, Luxe Homes filed a motion to transfer venue, which included

1 The Brewers requested a declaratory judgment on the issue of whether or not they were entitled to file notice of lis pendens.

2 its answer and defenses. Luxe Homes alleged that, according to the contract with the

Brewers, venue is only proper in Rankin County Circuit Court.

¶5. On January 10, 2022, the chancellor held a hearing on Luxe Homes’ motion, and on

January 21, 2022, she entered an order denying the request to transfer the case to Rankin

County. The order stated that the venue selection clause asserted in “clear and unambiguous

terms” how the defendants intended to handle “potential matters and/or lawsuits[.]” The

chancellor, however, determined that the provision was permissive in nature and thus was

not enforceable because “[n]one of the provisions in the contract where jurisdiction is

mentioned, implements the limiting language that clearly specifies that the plaintiffs must file

any issues with the defendants in Rankin County.” This Court granted Luxe Homes’ petition

for interlocutory appeal of the chancellor’s denial of the motion to transfer venue.

ISSUES PRESENTED

¶6. The arguments raised by the parties can best be summarized as followed:

I. Whether the chancellor erred by denying Luxe Homes’ motion to transfer venue.

II. Whether the case can properly be transferred to Rankin County Circuit Court.

STANDARD OF REVIEW

¶7. This case should be reviewed under a mixed standard. “[I]ssues pertaining to the

interpretation and enforcement of a forum selection clause should be deemed to be questions

of law and subject to de novo review.” Titan Indem. Co. v. Hood, 895 So. 2d 138, 145

3 (Miss. 2004). “Contract interpretation is a question of law that is reviewed de novo.” Driver

Pipeline Co., Inc. v. Williams Transp., LLC, 104 So. 3d 845, 847 (Miss. 2012) (citing

Warwick v. Gautier Util. Dist., 738 So. 2d 212, 215 (Miss. 1999)). Additionally, a “grant

of a motion to transfer from chancery court to circuit court, or vice-versa, is a jurisdictional

question that is subject to de novo review.” Derr Plantation, Inc. v. Swarek, 14 So. 3d 711,

715 (Miss. 2009) (citing Issaquena Warren Cntys. Land Co., LLC v. Warren Cnty., 996 So.

2d 747, 749 (Miss. 2008)). The standard of review for a trial court’s denial of a motion to

change venue, however, is abuse of discretion. Crenshaw v. Roman, 942 So. 2d 806, 809

(Miss. 2006) (citing Baptist Mem’l Hosp.-DeSoto Inc. v. Bailey, 919 So. 2d 1, 2 (Miss.

2005)).

DISCUSSION

I. Whether the chancellor erred by denying Luxe Homes’ motion to transfer venue.

¶8. Following the precedent set by this Court in Titan,when reviewing a forum selection

clause, this Court must first determine if the clause is mandatory or permissive. Titan, 895

So. 2d at 146. “If the clause is mandatory, the Court then decides if it is enforceable . . . .

If it is permissive, i.e., if it does not prohibit litigation elsewhere, then the clause is not

enforced.” Id. The venue provision in the contract at issue in the present case states: “Venue

of any action filed by either party to the contract, whether against each other or any broker

or agent involved shall be the Circuit Court of Rankin County.”

A. Whether the forum selection clause is mandatory or

4 permissive.

¶9. Luxe Homes argues that the chancellor erred by determining that this provision was

permissive. It argues that the provision itself limits venue to Rankin County Circuit Court

and that when all provisions of the document are considered, the parties’ intent that Rankin

County Circuit Court was to be the exclusive venue for this case is “heavily emphasized[.]”

Luxe Homes, in addition to the venue provision, relies on the following provisions of the

contract which state in relevant part:

11. BREACH OF CONTRACT: Specific performance is the essence of this contract, except as otherwise specifically provided for and as further delineated below:

(a) In the event of breach of this contract by Buyer, Seller at his option may either: (1) accept the earnest money deposit as liquidated damages and this contract shall then be null and void, or (2) enter suit in Rankin County, Mississippi for damages, giving credit on said damages for the said earnest money deposit, or (3) enter suit in Rankin County, Mississippi for specific performance . . . .

(b) In the event of breach of contract by Seller, Buyer at his option may either: (1) accept the return of the earnest money deposit and cancel the contract, or (2) enter suit for damages in Rankin County, Mississippi, or (3) enter suit in Rankin County, Mississippi for specific performance ....

(Emphasis added.)

¶10. The Brewers argue that the venue provision is permissive because it does not contain

“clear, unequivocal language expressly prohibiting litigation outside of Rankin County

Circuit Court.” The Brewers rely on Fair v. Lighthouse Carwash Systems, LLC, which is

persuasive authority from our Court of Appeals, to further support their argument that the

5 venue provision does not contain “express language of exclusion.” Fair v. Lighthouse

Carwash Sys., LLC, 961 So. 2d 60, 64 (Miss. 2007). The forum selection clause in Fair

stated, in relevant part, that the parties “irrevocably consent to the jurisdiction and venue of

the courts of the State of Indiana, Johnson County, and the United States District Court for

the Southern District of the State of Indiana with respect to any and all actions related to this

Agreement or the enforcement hereof . . . .” Id. at 62. The court found the provision to be

permissive based on federal court case law. See Caldas & Sons, Inc. v. Willingham, 17 F.3d

123, 127 (5th Cir. 1994) (finding provision that stated “[t]he laws and courts of Zurich are

applicable” to be permissive (alteration in orginal) (internal quotation marks omitted)); Keaty

v. Freeport Indonesia, Inc., 503 F.2d 955, 956-57 (5th Cir. 1974) (finding provision that

stated “the parties submit to the jurisdiction of the courts of New York” to be permissive

(internal quotation mark omitted)); City of New Orleans v. Mun. Admin. Servs., Inc., 376

F.3d 501, 504 (5th Cir. 2004) (finding provision that stated “Contractor does further hereby

consent and yield to the jurisdiction . . .” to be permissive); Bentley v. Mut. Benefits Corp.,

237 F. Supp. 2d 699, 700-01 (S.D. Miss. 2002) (finding provision that stated the parties

“stipulate to venue in Broward County” to be permissive). These clauses are permissive

because they merely prohibit the parties from contesting venue were the litigation brought

in venues that were agreed to by the parties, but they do not prohibit the parties from bringing

an action in a different court. See Fair, 961 So. 2d at 65. This Court finds that the

provisions considered in Fair, and in the underlying federal cases, are distinguishable from

6 the plain language of the forum selection clause considered in the present case.

¶11. The forum selection clause in this case is similar to that evaluated by the district court

in Kirkland Properties, LLC v. Pillar Income Asset Management, Inc., 481 F. Supp. 3d

626, 629-631 (N.D. Miss. 2020). The forum selection clause in that case stated that “Unless

other [sic] agreed, any litigation between the parties under this Agreement shall be conducted

in a court of competent jurisdiction in Madison County, Mississippi.” Id. at 629 (alteration

in original) (emphasis omitted). Similar to the Brewers in the present case, Kirkland argued

before the district court that the provision was permissive because it did not expressly

prohibit venue in other jurisdictions. Id. at 630. The court acknowledged that “[t]ypically,

words such as ‘must’, ‘only’, or ‘shall’ are indicators of mandatory clauses, but the presence

of [these] words alone does not foreclose the possibility that venue would be permissible in

an unnamed locale.” Id. (second alteration in original) (internal quotation marks omitted)

(quoting Stanley Smith Drywall, Inc. v. Munlake Contractors, Inc., 906 F. Supp. 2d 588,

592 (S.D. Miss. 2011)). The court, however, stated that the use of the word shall in that

provision “mandates that the litigation occur in a Madison County court. In other words, the

parties’ incorporation of the word ‘shall’ in this context does foreclose other alternative

forums.” Id. The Court found that Kirkland’s argument took the mandatory requirements

to “an extreme position.” Id. This logic is persuasive and informs the case at hand.

¶12. Both parties submitted arguments regarding the use of the word shall in this venue

provision. Luxe Homes argues that “shall[,]” as used here, creates a mandatory requirement

7 that the case must be in Rankin County, although they agree with the Brewers that use of

shall “may not always be sufficient to establish a venue clause as mandatory without

additional exclusionary language and/or in the absence of clear language establishing a

specific venue.” The Brewers argue that “the term ‘shall’ standing alone is never sufficient”

to create a mandatory venue provision. The Brewers rely on Caldas, which stated “[e]ven

though the clause now before us uses ‘shall’ which is generally mandatory, this clause need

not necessarily be classified as mandatory.” Caldas, 17 F.3d at 127. For the previously

stated reasons, the forum selection clause in Caldas is distinguishable from the one before

this Court.

¶13. The venue provisions of this contract are mandatory and unambiguous and should be

enforced as written. Epperson v. SOUTHBank, 93 So. 3d 10, 16 (Miss. 2012) (“First, we

must determine whether the contract is ambiguous, and if it is not, then it must be enforced

as written.” (citing Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748,

751 (Miss. 2003))). The use of the word shall in the venue provision and the multiple

references to filing suit in Rankin County exhibit the parties’ intent, at the time of the

formation of the contract, that Rankin County Circuit Court was to be the exclusive venue

for any dispute that arose from the agreement. Further, the Brewers’ argument that the

provision must use magic words to exclude all other jurisdictions stretches Mississippi case

law to an extreme position. The venue provision plainly requires suit to be in Rankin County

Circuit Court.

8 B. Whether the forum selection clause is enforceable.

¶14. Because the venue provision is mandatory, this Court must now consider whether the

provision is enforceable. See Titan, 895 So. 2d at 146. Forum selection clauses are

presumptively valid and enforceable unless the resisting party can prove:

1. Its incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;

2. The selected forum is so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or

3. The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

Id. (citing M/S Breman v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S. Ct. 1907, 1914,

1916-1917, 32 L. Ed. 2d 513 (1972)). Luxe Homes argues that the venue provision is

enforceable. It is the Brewers’ responsibility, as the party claiming the provision should not

be enforced, to prove any of the above reasons for unenforceability. The Brewers, however,

do not address these factors. They merely claim that if any error is found in the chancellor’s

ruling, then it was harmless to Luxe Homes, and the case should remain in Hinds County.

¶15. The contract venue provision is enforceable. The parties agreed to these contract

provisions, the forum selection clause is presumptively valid and the Brewers failed to rebut

the presumption of validity. Id.

II. Whether the case can properly be transferred to Rankin County Circuit Court.

9 ¶16. The Brewers also argue that this case is within the exclusive jurisdiction of the

chancery court and thus the Rankin County Circuit Court has no jurisdiction to compel

specific performance concerning land in Hinds County. Luxe Homes argues that the Brewers

are seeking both equitable and legal relief, so the circuit court, as a court of general

jurisdiction, would have authority over the claims.

¶17. The Brewers rely on Derr Plantation to support their argument. Derr Plantation, 14

So. 3d at 715-16. Derr Plantation involved a dispute over the sale of land in both Issaquena

and Sharkey County that was brought in Issaquena County Chancery Court. Id. at 714.

“[T]wo years and three months after the Swareks initiated the case in [Issaquena County

Chancery Court], and after suffering adverse rulings from the chancery court and this Court,

they filed a motion to transfer the case to [Issaquena County Circuit Court].” Id. at 715. The

chancellor granted the Swareks’ request after determining that “the complaint ultimately

sounded in breach of contract, and that the chancery court lacked jurisdiction over breach-of-

contract claims.” Id. On appeal, this Court reversed the chancellor’s decision to transfer the

case. Id. at 720. The Court stated that the chancellor would have pendent jurisdiction over

the legal claims “if it appears from the face of a well-pleaded complaint that an independent

basis for equity jurisdiction exists[.]” Id. at 716 (citing Re/Max Real Est. Partners, Inc., v.

Lindsley, 840 So. 2d 709, 711-12 (Miss. 2003)). The Court, however, also stated that:

Conversely, “if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction.” In fact, if there is some doubt as to whether a case is within the jurisdiction of the chancery court, the case is better tried in circuit court because, “it is more

10 appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.”

Derr Plantation, 14 So. 3d at 716 (citations omitted). The Court found the case was properly

in chancery court because “the primary thrust of the Swareks’ complaint was a request for

equitable relief in the form of specific performance of a real estate contract.” Id. at 720.

¶18. The Brewers argue that, similar to the Swareks, the primary form of relief in their

complaint is specific performance. Id. Contract provision 11 states that “Specific

performance is the essence of this contract[,]” and subsection b requires that any action for

specific performance must be filed in the Rankin County Circuit Court. The Brewers, in

reliance on these provisions, argue that the venue provisions are unenforceable because it

would require their specific performance suit to be filed exclusively in Rankin County Circuit

Court. It is the Brewers’ opinion that “no competent draftsman” would have deliberately

made a circuit court the exclusive forum for a real estate dispute when the parties request

specific performance.

¶19. Luxe Homes argues that it is undisputed that the Brewers are seeking a combination

of both equitable and legal relief and that under Derr Plantation, if there is any dispute over

which court has jurisdiction, the claims should be heard in circuit court. Id. at 716.

Additionally, Luxe Homes distinguishes Derr Plantation because that case did not involve

the enforcement of a forum selection provision in a contract, which is the issue before this

Court. Finally, Luxe Homes argues that the Brewers’ agent was the draftsman and that any

11 ambiguity about whether Rankin County Circuit Court is the exclusive venue should be

interpreted against the Brewers.

¶20. This Court finds that Luxe Homes is correct. The Brewers and Luxe Homes have an

unambiguous contract that contains mandatory requirements that the suit be heard in Rankin

County Circuit Court. Derr Plantation, while relevant to the present issue, is distinguishable

from this case. The Swareks’ action had been in chancery court for years, and the parties

were preparing for trial when the Swareks filed a motion to transfer. Id. at 715. The case

before this Court is still in a preliminary stage. Additionally, the Court did not consider a

forum selection clause in Derr Plantation. The Brewers’ claim that Derr Plantation

supports their argument that Rankin County Circuit Court has no authority to order specific

performance, in this case concerning land in Hinds County, is without merit. The Brewers

bring claims not only for breach of contract, but also for negligent and intentional

misrepresentation and a declaratory judgment, and they request not only specific performance

but also reasonable attorneys’ fees, general damages, special damages and punitive damages.

The circuit court has jurisdiction because the Brewers request both legal and equitable

remedies. Finally, any ambiguity in the venue provisions should be interpreted against the

Brewers because they prepared the contract. Wood v. Wood (In re Dissolution of Marriage

of Wood), 35 So. 3d 507, 513 (Miss. 2010) (“One canon of contract construction is that

‘uncertainties should be resolved against the party who prepared the instrument.’” (quoting

Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352-53 (Miss. 1990))). The Brewers’

12 argument that the terms of the venue provisions are unenforceable because they require a

specific performance case to be brought in circuit court is without merit.

CONCLUSION

¶21. This Court finds that the chancellor abused her discretion by denying Luxe Homes’

motion to transfer venue. The terms of the venue provisions in the contract between Luxe

Homes and the Brewers are unambiguous, mandatory and enforceable. Per the agreement,

drafted by the Brewers’ agent, venue properly and exclusively lies with the Rankin County

Circuit Court. The Rankin County Circuit Court is a court of general jurisdiction that has the

authority to hear the Brewers’ legal and pendent equitable claims. The chancellor’s order is

reversed, and the case is remanded with instructions to transfer the case to the Rankin County

¶22. REVERSED AND REMANDED.

RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. KITCHENS AND KING, P.JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.