Pennebaker v. Gray

924 So. 2d 611, 2006 Miss. App. LEXIS 171, 2006 WL 619112
CourtCourt of Appeals of Mississippi
DecidedMarch 14, 2006
Docket2004-CA-01893-COA
StatusPublished
Cited by3 cases

This text of 924 So. 2d 611 (Pennebaker v. Gray) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennebaker v. Gray, 924 So. 2d 611, 2006 Miss. App. LEXIS 171, 2006 WL 619112 (Mich. Ct. App. 2006).

Opinion

924 So.2d 611 (2006)

E.L. PENNEBAKER, Jr., Appellant
v.
Morris GRAY, Appellee.

No. 2004-CA-01893-COA.

Court of Appeals of Mississippi.

March 14, 2006.

*613 Gene Melvin Coxwell, attorney for appellant.

Michael P. Younger, Brandon, attorney for appellee.

Before LEE, P.J., IRVING and CHANDLER, JJ.

*614 CHANDLER, J., for the Court.

¶ 1. On January 23, 2003, E.L. Pennebaker, Jr. filed a "Complaint for Preliminary Injunction, for Replevin, for Damages, for Dissolution of Joint Venture, and for Other Relief" against Morris Gray. The complaint alleged that, pursuant to an agreement with Gray, Pennebaker had invested substantial money, labor, and equipment in the acquisition and development of certain property owned by Gray and in the mining of gravel located upon the property. The complaint further alleged that, on January 13, 2003, Gray had barred Pennebaker from accessing the gravel by locking the gate to the property.

¶ 2. After a preliminary hearing in the Chancery Court for the Second Judicial District of Hinds County, the chancellor allowed Pennebaker to go upon the property and remove gravel that he had under contract for sale. The chancellor granted Pennebaker's complaint for replevin and allowed him to retrieve equipment he owned and had left on the property. After a hearing on the merits, the chancellor found that no joint venture had existed between Pennebaker and Gray concerning the property or the gravel. However, the chancellor found that Pennebaker was entitled to relief in quantum meruit for his expenditures in laying a water line, for his part of jointly owned scales and equipment, and for his loss in the sale of a generator that he had purchased. Pennebaker appeals, arguing that the chancellor manifestly erred in concluding that Pennebaker and Gray were not parties to a joint venture.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. The testimony established that Pennebaker and Gray were close friends who had been involved in business deals together since the 1960s. Primarily, these deals centered upon the joint ownership and maintenance of mechanical equipment, as well as swapping various items of equipment for other equipment or for money. In early 1998, Pennebaker noticed that approximately 537 acres in Hinds County were being offered for sale at a good price. He told Gray about the property.

¶ 5. In April 1998, Gray bought the property, which was subdivided into two parcels, one containing 211.80 acres and one containing 326 acres. The property was subdivided to enable Gray to effect a tax swap of some of his other property for the 326 acres. The purchase price for both parcels totaled $355,000. The warranty and assumption deeds show that Gray was the deeded owner of both parcels. Pennebaker did not make any financial contribution toward Gray's purchase of the property. Within thirty days, Gray sold the 211.80 acre parcel, retaining all the profit from the sale for himself. Gray decided to keep the 326 acre parcel to use for hunting.

¶ 6. The testimony of Pennebaker and Gray differed materially as to the parties' understanding concerning the property and no writings memorialized any agreements between them. Pennebaker testified that the property was the subject of a joint venture between himself and Gray. The object of the joint venture was to develop the property for sale and then to split the profits equally. Pennebaker maintained that, though he had lacked funds to buy into the property, he had contributed to the acquisition of the property by facilitating Gray's purchase of it.

¶ 7. Pennebaker was experienced in the gravel business. Pennebaker testified that, when Gray decided to keep the 326 acre parcel for hunting, he and Gray decided that Pennebaker could reap his share of the profits from the 326 acres by mining *615 and selling gravel located on the property. Pennebaker testified that he and Gray anticipated that they would sell large amounts of gravel to the Horseshoe Casino that was planned nearby. In February 2001, anticipating his own gravel sales to the casino, Pennebaker sold a separate gravel pit that he owned with a restriction that the buyer could not sell gravel for five years. The planned casino was the subject of other litigation by Pennebaker. See Mississippi Gaming Com'n v. Pennebaker, 824 So.2d 552 (Miss.2002) (finding that the Mississippi Gaming Commission's determination that the planned casino site was not suitable for gaming was supported by substantial evidence); Harrah's Vicksburg Corp. v. Pennebaker, 812 So.2d 163 (Miss.2001) (reversing and rendering a $942,000 judgment in favor of Pennebaker that had been based on his claims that the defendants' conduct before the Mississippi Gaming Commission constituted restraint of trade, conspiracy, and tortious interference with contract).

¶ 8. At the preliminary hearing, Gray testified that, since Pennebaker had lacked funds to buy into the 537 acres, Gray bought it and gave Pennebaker a one-half interest in it. Pennebaker was to pay Gray for the one-half interest when his lawsuit concerning the casino was favorably resolved. Gray characterized this agreement as a "gentleman's agreement" that was made by telephone. Gray stated that, later, Pennebaker told Gray that he needed money and wanted to sell his one-half interest. Gray paid Pennebaker $40,000 in exchange for his interest, consisting of $33,000 in funds and $7,000 in the use of certain of Gray's equipment.[1] Pennebaker expressed an intention to repurchase his interest and to buy into the property if he received money from the casino litigation. Pennebaker and Gray agreed that Pennebaker could repurchase his one-half interest for $60,000 plus one-half the remaining balance of the original purchase price.

¶ 9. At the hearing on the merits, Gray characterized Pennebaker's initial interest in the property as an option to purchase a one-half interest. Gray stated that Pennebaker sold him the option for $40,000, consisting of $32,000 in funds and $8,000 in the use of equipment. Gray stated that the parties agreed that Pennebaker could repurchase the option for $60,000. If Pennebaker repurchased the option, he would have one year to exercise the option by purchasing a one-half interest in the land for one-half the remaining balance of the original purchase price.

¶ 10. Regardless of Gray's characterization of Pennebaker's initial interest in the property, it is undisputed that Pennebaker never paid Gray any funds toward the purchase of the property. Gray testified that Pennebaker had sold him any interest he had in the property. Gray denied ever agreeing that Pennebaker would get his share of the profits from a joint venture by selling gravel.

¶ 11. Pennebaker averred that the parties never agreed that he would have to buy a one-half interest in the land in order to be entitled to one-half of the profits from its sale. Pennebaker asserted that, from the start, he had a one-half interest in the property and, therefore, an entitlement to one-half of the profits from its sale or development. He maintained that Gray had never paid him for his interest.

¶ 12. Beginning in 1998, both Pennebaker and Gray removed gravel from the *616 property. The parties testified that they had considered running a gravel-washing operation on the property. In preparation for this project, Pennebaker purchased a generator. The parties jointly purchased some equipment, including a set of scales.

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Bluebook (online)
924 So. 2d 611, 2006 Miss. App. LEXIS 171, 2006 WL 619112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennebaker-v-gray-missctapp-2006.