McDonald v. Holmes, No. 89-CA-40
| Court | Mississippi Supreme Court |
| Writing for the Court | BANKS; ROY NOBLE LEE |
| Citation | 595 So.2d 434 |
| Parties | Dan McDONALD and Beverly Ryall, Trustees of and for Dr. Prentiss E. Smith, Inc., Money Purchase Pension Plan, Southeastern Health Care, Inc. and Dr. Prentiss E. Smith v. Paul H. HOLMES. |
| Decision Date | 26 February 1992 |
| Docket Number | No. 89-CA-40 |
Page 434
Prentiss E. Smith, Inc., Money Purchase Pension
Plan, Southeastern Health Care, Inc. and
Dr. Prentiss E. Smith
v.
Paul H. HOLMES.
Frank D. Montague, Jr., Montague Pittman & Schwartz, Hattiesburg, for appellant.
Maurice Dantin, Dantin & Dantin, Columbia, for appellee.
Before HAWKINS, P.J., and BANKS and McRAE, JJ.
BANKS, Justice, for the Court:
Once again we are called upon to determine the propriety of a grant of summary judgment in chancery court. At issue is the nature of the relationship between investors and the obligations one to the other. Finding ample genuine dispute over issues of material fact we reverse and remand.
Page 435
I
This case is before this Court on appeal from Copiah County Chancery Court, where on October 17, 1988, the court denied plaintiffs' Motion to Leave to File Third Amended Complaint, and instead granted defendant, Paul Holmes' (Holmes) Motions for Summary Judgment.
The initial plaintiffs below were Dr. Prentiss E. Smith, Inc., Money Purchase Pension Plan (Pension Plan), through its Trustees Dan McDonald and Beverly Ryall, and Southeastern Health Care, Inc. (Southeastern), two Louisiana domiciled corporations. They claimed in their Second Amended Complaint that beginning January 8, 1982, and ending August 10, 1983, Pension Plan loaned Holmes the sum of $1,264,542.10 for the purpose of enlarging Pine Crest Guest Home (Pine Crest) in Hazlehurst, Mississippi. The loan was to be repaid at the rate of ten percent interest in 240 annual installments of $12,203.87 each and was to be evidenced by a promissory note and secured by deed of trust on the property in favor of First Guaranty Savings and Loan Association dated August 26, 1983. Pension Plan further alleged that Holmes had reported the loan indebtedness as a liability and payment item but had not executed or formalized the debt instruments. They requested that a lien be impressed on the property.
Southeastern alleged that a Nursing Home Consultant and Management Services Agreement existed between itself and Holmes which was initiated on November 1, 1981, and ended on December 31, 1986. Southeastern alleged that it furnished all services and performed all obligations required by said agreement and that "[s]aid Agreement has continued in performance and de factor [sic] recognition beyond its stated expiration date, but [Holmes] has refused to extend it by formal writing." Pension Plan and Southeastern further alleged that on September 1, 1987, Holmes sent a letter of termination to Dr. Prentiss E. Smith, (President of Southeastern) and that Holmes is attempting to sell Pine Crest Guest Home without affording Pension Plan the lien protection for the loan.
Holmes admitted to having entered into an agreement with Southeastern, which commenced November 1, 1981, and ended October 31, 1986, but denied that the agreement continued in performance beyond stated expiration date. He also admitted to termination of Southeastern's services on the date alleged by Southeastern. However, Holmes denied that he was selling Pine Crest, but stated that if given adequate consideration, he would not refuse to sell. Holmes further denied that Pension Plan loaned him money to construct additional bed facilities at Pine Crest.
Holmes subsequently filed a counter-claim against Southeastern alleging inter alia that Southeastern illegally commingled Holmes' funds and wrongfully deprived him of those funds. He sought a return of those funds which Southeastern retained as alleged payments on the alleged debt to Pension Plan, a total of $521,818.24.
After an exchange of discovery, plaintiffs moved to amend adding Prentiss Smith, individually, as a plaintiff and adding allegations of joint venture, breach of fiduciary duty and resulting trust. Smith is the sole beneficiary of the Pension Plan and the sole stockholder of Southeastern. He alleged a continuing course of dealings with Holmes wherein he and Holmes and the other entities participated in various ventures and that Holmes also served as his personal and corporate lawyer in Mississippi.
Holmes resisted the proposed amendment asserting misjoinder and lack of venue. Holmes also filed a motion for summary judgment asserting that the construction loan was unenforceable because it was not supported by a writing and the last alleged advance was August 10, 1983, more than three years before the filing of the first complaint in 1987. He asserted that the three year statute of limitations for unwritten contracts, Miss.Code Ann. Sec. 15-1-29 (1972) applies.
Pension Plan through the affidavits of Smith and one of Holmes' former secretaries contended that Holmes had authorized Smith to sign his name to various
Page 436
documents in connection with their various dealings, including the nursing home in question, and that Holmes had authorized Smith to and Smith had signed Holmes' name to a...To continue reading
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IP TIMBERLANDS OPERATING CO. LTD. v. Denmiss, 96-CA-00140-SCT.
...Dye v. State, 507 So.2d 332, 337-38 (Miss.1987) (circuit court could hear claims for equitable relief). See also McDonald v. Holmes, 595 So.2d 434, 437 (Miss. 1992) ("[w]e have made clear that our trial courts, chancery and circuit, have full jurisdiction to adjudicate all claims in a singl......
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Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, SPERRY-NEW
...when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. McDonald v. Holmes, 595 So.2d 434, 437 (Miss.1992). In Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983), which first interpreted Rule 56, this Court The trial court must r......
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Preferred Risk Mut. Ins. Co. v. Johnson, 97-CA-00712-SCT.
...sound discretion of the trial court." MBF Corp. v. Century Bus. Communications, 663 So.2d 595, 600 (Miss.1995)(citing McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992); Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss. 1984)). An award of prejudgment interest is normally left to......
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Webb v. Braswell, No. 2004-CA-01438-SCT.
...to the discretion of the lower court. Red Enters., Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984); McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992). Where the plaintiff filed his motion for amendment of declaration setting out its exact terms, and such terms were incorporated in......
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Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, SPERRY-NEW
...when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. McDonald v. Holmes, 595 So.2d 434, 437 (Miss.1992). In Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983), which first interpreted Rule 56, this Court The trial court must r......
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IP TIMBERLANDS OPERATING CO. LTD. v. Denmiss, No. 96-CA-00140-SCT.
...Dye v. State, 507 So.2d 332, 337-38 (Miss.1987) (circuit court could hear claims for equitable relief). See also McDonald v. Holmes, 595 So.2d 434, 437 (Miss. 1992) ("[w]e have made clear that our trial courts, chancery and circuit, have full jurisdiction to adjudicate all claims in a ......
-
Preferred Risk Mut. Ins. Co. v. Johnson, No. 97-CA-00712-SCT.
...discretion of the trial court." MBF Corp. v. Century Bus. Communications, 663 So.2d 595, 600 (Miss.1995)(citing McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992); Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss. 1984)). An award of prejudgment interest is normally left to ......
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Webb v. Braswell, No. 2004-CA-01438-SCT.
...to the discretion of the lower court. Red Enters., Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984); McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992). Where the plaintiff filed his motion for amendment of declaration setting out its exact terms, and such terms were incorporated in......