Sweet v. TCI MS, INC.

47 So. 3d 89, 2010 Miss. LEXIS 432, 2010 WL 3259797
CourtMississippi Supreme Court
DecidedAugust 19, 2010
Docket2009-CA-01260-SCT
StatusPublished
Cited by14 cases

This text of 47 So. 3d 89 (Sweet v. TCI MS, INC.) 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
Sweet v. TCI MS, INC., 47 So. 3d 89, 2010 Miss. LEXIS 432, 2010 WL 3259797 (Mich. 2010).

Opinions

WALLER, Chief Justice,

for the Court:

¶ 1. Dennis C. Sweet, III, and his wife, Kimberly Noel-Sweet, filed suit against TCI MS Investment, Inc., alleging breach of contract by TCI after it failed to purchase a building from the Sweets. The Chancery Court of Hinds County granted summary judgment for TCI. Because summary judgment was based wholly on a self-serving, conclusory affidavit, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dennis and Kimberly Sweet purchased a commercial building at 158 East Pascagoula Street in downtown Jackson. The Sweets began renovating the property with the intent of transforming the premises into a law office. As renovations progressed, TCI inquired about purchasing the property. With a sale seemingly imminent, the Sweets stopped their renovations.

¶ 3. In June 2007, the Sweets and TCI entered into a real estate sales contract whereby TCI agreed to purchase the property for $1.2 million, with a $50,000 earnest-money deposit.1 Closing was set to occur on August 15, 2007. The contract made TCI’s obligations contingent on TCI obtaining financing satisfactory to it prior to the closing date. The contract further required that the Sweets provide TCI a survey within twenty days after expiration of the due-diligence period.

¶ 4. The August 15 closing date passed without consummation; consequently, on February 29, 2008, the Sweets filed suit against TCI in the Chancery Court of Hinds County.2 The Sweets alleged eight [91]*91causes of action, including breach of contract, negligence, negligence per se, gross negligence, and conversion.

¶ 5. More than one year later, on April 29, 2009, TCI filed a motion for summary judgment. TCI argued that it was not obligated to perform on the contract, because a specific contingency had never been met: TCI had not obtained financing satisfactory to it. In support of its motion, TCI attached the affidavit of Mark Small, president of TCI. Small’s affidavit stated that the Sweets had not provided the requisite survey, and that TCI had “attempted to obtain financing satisfactory to it from numerous financial institutions prior to the ... closing date ... [but] was unable to do so.”

¶ 6. A week or so later, on May 6, 2009, the Sweets filed a response opposing summary judgment on the basis that discovery was pending and incomplete. That same day, the Sweets propounded their first discovery requests. TCI responded to the Sweets’ discovery requests prior to the summary-judgment hearing.

¶7. On August 4, 2009, the chancery court entered a final judgment granting summary judgment for TCI. Thereafter, the chancery court granted TCI’s motion for attorneys’ fees and costs in the amount of $18,384. An amended final judgment was entered on August 20, 2009.

¶ 8. The Sweets now appeal to this Court.

DISCUSSION

Did the chancellor properly grant summary judgment by finding that the Sweets failed to assert any genuine issues of material fact?

¶ 9. A lower court’s grant of summary judgment is reviewed de novo. E.g., In re Estate of Laughter, 23 So.3d 1055, 1060 (Miss.2009) (quoting Bullock v. Life Ins. Co., 872 So.2d 658, 660 (Miss.2004)). Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The evidence must be considered in the light most favorable to the party against whom the motion is made. In re Estate of Laughter, 23 So.3d at 1060 (Miss.2009) (quoting Bullock, 872 So.2d at 660).

¶ 10. The Sweets assert numerous reasons why summary judgment should not have been granted. We need address only two: (1) whether the contingency clause in paragraph five of the contract is ambiguous and (2) whether TCI failed to meet its burden of persuasion by relying solely on Small’s self-serving, conclusory affidavit to support its motion for summary judgment.

Ambiguity of the contract.

¶ 11. Summary judgment is generally inappropriate for cases involving contractual ambiguity. Great S. Nat’l Bank v. McCullough Envtl. Servs, Inc., 595 So.2d 1282, 1289 (Miss.1992) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 354 (Miss.1990)). But if no material ambiguity exists and the provisions are clear, even if not perfectly clear, summary judgment often is proper. Willis v. Miss. Farm Bureau Mut. Ins. Co., 481 So.2d 256, 258 (Miss.1985) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)).

¶ 12. The Sweets contend that the contingency clause in paragraph five is ambig[92]*92uous insofar as it makes TCI’s contractual obligations contingent upon TCI obtaining financing satisfactory to it. The contingency clause states as follows:

5. CONTINGENCIES. The obligations of [TCI] herein, including forfeiture of any Earnest Money, are subject to [TCI] obtaining financing; zoning; approvals, and certain environmental permits, satisfactory to [TCI] pri- or to the Closing Date.

¶ 13. The Sweets argue that the terms “obtaining financing” and “satisfactory” are ambiguous. “Obtaining financing,” according to the Sweets, is ambiguous because it does not specify the percentage or the amount of financing that TCI must attain. They argue that the term “satisfactory” likewise is subjective and open to various interpretations. The Sweets thus insist that paragraph five is no contingency at all, but is simply an “escape route” — it allows TCI to avoid its contractual obligations simply by asserting that it could not obtain “satisfactory” financing.

¶ 14. The requirement that TCI obtain satisfactory financing served as a condition precedent to TCI’s obligations to complete the purchase. See Bailey v. Estate of Kemp, 955 So.2d 777, 786 (Miss.2007); see also Watkins v. Williamson, 869 S.W.2d 383, 384-85 (Tex.Ct.App.1993). Provisions that make a contract subject to a condition, the performance of which must be satisfactory to the purchaser, are called “satisfaction clauses.” Milton R. Friedman & James Charles Smith, 1 Friedman on Contracts and Conveyances of Real Property § 1:2.1, at 1-7 to 1-8 (7th ed.2005). Courts have struggled to decide whether “satisfaction” should be interpreted subjectively or objectively. Id. Yet, “[satisfaction with a financial condition usually requires a subjective determination.” Friedman, § 1:2.1 at 1-8 (citing Forman v. Benson, 112 Ill.App.3d 1070, 68 Ill.Dec. 629, 446 N.E.2d 535 (1983), but noting that the courts have gone both ways). Good faith is required regardless. Id.

¶ 15. We find that paragraph five unambiguously sets forth that TCI’s contractual obligations are contingent upon TCI obtaining financing satisfactory to it. TCI need only exercise good faith. Subjectivity does not render the clause ambiguous or unenforceable. The Court of Appeals of Texas, for example, applied a subjective standard in enforcing a similar contractual provision. Watkins, 869 S.W.2d 383. In Watkins,

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Sweet v. TCI MS, INC.
47 So. 3d 89 (Mississippi Supreme Court, 2010)

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Bluebook (online)
47 So. 3d 89, 2010 Miss. LEXIS 432, 2010 WL 3259797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweet-v-tci-ms-inc-miss-2010.