IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CA-01070-SCT

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

DATE OF JUDGMENT: 09/07/95

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: JOSHUA J. WIENER

ATTORNEYS FOR APPELLEE: MARY ANN CONNELL

LLOYD ARNOLD

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART - 9/25/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/16/97

BEFORE DAN LEE, C.J., 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 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. Finally, he noted that the Center was in breach of the contract and stated his

intention to sue if the Center did not rectify its breach. On June 14, 1993, the Center responded by

sending him a copy of the brochures and requesting a list of individuals to whom he might wish a

copy of the brochure be sent. On June 28, 1993, Freeman wrote a letter to the Center expressing his

frustration at the pace of the project, especially since the joint marketing period was two days from

being over, and the prints had yet to be packaged into portfolio form or marketed in a coherent

manner. He also expressed his disappointment at not being kept abreast of the project and that he

was not sent any brochures as Gorton had been.

¶12. The portfolios were finally assembled and the first one sold in early July, after the joint

marketing period. However, the portfolios were never embossed with the seal as required in the

contract, and Ferris eventually determined that the embossing was unnecessary.

¶13. On January 28, 1994, Freeman and Diogenes filed suit in this case. The plaintiffs served

interrogatories and document production requests on the Center with the complaint, which the

Center answered. The trial court entered a Scheduling Order on October 17, 1994, setting November

30, 1993 as the date for completion of discovery and January 16, 1995, as the deadline for filing
pretrial motions.

¶14. The Center propounded interrogatories and document production requests upon the plaintiffs on

October 27, 1994. Plaintiffs mailed responses to Defendants discovery on January 31, 1995, two

months after the discovery completion date and two weeks after the deadline for the filing of pretrial

motions. Plaintiffs filed a Notice of Trial Setting on February 16, 1995, reflecting that the case had

been set for trial on May 8, 1995, by agreement of counsel.

¶15. On April 7, 1995, the Center filed a Motion for Leave to File Dispositive Motion and for Stay of

Proceedings and Filed a motion for Summary Judgment. After a telephone hearing on April 18, 1995,

the trial court granted the Defendants' Motion for Leave to File a Dispositive Motion. A hearing on

the Motion for Summary Judgment was held on May 4, 1995. At the conclusion of argument, the

trial court took the matter under advisement and ordered the trial continued.

¶16. On September 7, 1995, the trial court entered an Order granting Defendant's Motion for

Summary Judgment. Aggrieved, the plaintiffs appeal.

STANDARD OF REVIEW

¶17. "It is well-settled that a motion for summary judgment challenges the legal sufficiency of all or

part of an opponent's case." Allen v. Mac Tools, 671 So. 2d 636, 640 (Miss. 1996); Dawkins and

Co. V. L & L Planting Co., 602 So. 2d 838, 841 (Miss. 1992). The motion lies only where there is

no genuine issue as to any material fact. A fact is material if it tends to resolve any of the issues

properly raised by the parties." Allen v. Mac Tools, 671 So. 2d at 640.

¶18. This Court conducts a de novo review of the record on appeal from a grant of a motion of

summary judgment. Id. "When reviewing an award of summary judgment, this Court views all

evidence in the light most favorable to the non-movant, including admissions in pleadings, answers to

interrogatories, depositions, affidavits, etc. and will presume that all evidence in the non-movant's

favor is true." Id. If any triable issues of fact exist, the lower court's decision to grant summary

judgment will be reversed. Otherwise, this Court affirms the decision. Id.; Brown v. Credit Center,

Inc., 444 So. 2d 358, 362 (Miss. 1983).

DISCUSSION OF LAW

¶19. Freeman and Diogenes list two issues for appeal:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE CENTER'S MOTION

FOR LEAVE TO FILE A MOTION FOR SUMMARY JUDGMENT.

¶20. The appellants contend that the trial judge should not have granted the Center leave to file its

Motion for Summary Judgment because the court had set a pretrial motion deadline of January 16,

1995, and both the Motion for Leave and the Motion for Summary Judgment were filed and granted

beyond that deadline. Appellants base their argument in the language of M.R.C.P. 6(b), which states:

When . . . by order of the court an act is required or allowed to be done at or within a specified

time, the court for cause shown may at any time within its discretion (1)with or without motion

or notice order the period enlarged if request is therefore made before the expiration of the
period originally prescribed or as extended by a previous order, or (2) upon motion made after

the expiration of the specified period permit the act to be done where failure to act was the

result of excusable neglect . . .

¶21. The Center listed as its "excusable neglect" the fact that the plaintiffs did not answer its written

discovery responses until after the January 16 deadline, and that it therefore could not evaluate these

responses to see if the case was ripe for summary judgment until after the deadline. Freeman and

Diogenes insist that the appropriate direction for the Center to take would have been to file for an

extension of the pretrial deadline before January 16.

¶22. We find that summary judgment motions for defendants are governed specifically by M.R.C.P.

56(b), which states:

A party against whom a claim . . . is asserted . . . may, at any time, move with or without

supporting affidavits for a summary judgment in his favor as to all or any part thereof.

¶23. The Center was the defendant on the trial level in this case, and, therefore, was free to move for

summary judgment at any time. Furthermore, it is well settled that specific statutes govern over

general ones. Lenoir v. Madison County, 641 So. 2d 1124, 1129-30 (Miss. 1994); Wilbourn v.

Hobson, 608 So. 2d 1187, 1191 (Miss. 1992). Though we could find no cases which apply the rules

of statutory construction to the M.R.C.P. in terms of the application of one rule over another, we

hold nonetheless that the same principal applies. As a result, this Court finds that the appellants' first

assignment of error is meritless.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR

SUMMARY JUDGMENT.

¶24. Freeman and Diogenes claim that the court should have denied the Center's Motion for

Summary Judgment because at least one material factual dispute existed. That being whether or not

the Center breached the contract by failing to have the portfolios ready on the publication date. The

Center claims that no breach existed and that the Court was correct in granting the Motion because

the publication date was clearly defined in the contract as being the first date upon which any of the

portfolios could be sold. As such, the Center claims that it had not breached the contract because it

could have sold the portfolios on that date.

¶25. Contracts are read as a whole so as to give effect to all of their provisions. Brown v. Hartford

Ins. Co., 606 So. 2d 122, 124 (Miss. 1992). In this particular contract, twenty-one of the portfolios

were to be distributed to the three parties to the contract equally on the publication date. These could

not be sold for six months. It is not readily apparent to this Court how those portfolios could be

distributed on the publication date if they were not yet assembled. Nor is it apparent how the Center,

which had primary responsibility for marketing the portfolios, and had enumerated responsibilities to

that end, could hold the portfolios for sale on the publication date when, by its own admission, it did

absolutely nothing to let anyone other than the parties to the contract know that the portfolios even

existed until February, 1993.

¶26. Further, Diogenes and Freeman claim that the Center's marketing of the portfolio was haphazard

and insufficient to the task. The sufficiency of the Center's marketing effort is also a question of fact
which is properly decided by a jury. It was shown from the record that the Center did not send a mass

mailing out to various museums, galleries, and individuals that it thought would be interested in the

portfolios until August 18, after the joint marketing period was over. Whether such a late

advertisement breached the contract was a jury question. There is also the assertion on the part of

Diogenes and Freeman that Ferris unilaterally decided that the portfolios did not have to be

embossed. Whether or not such a decision was unilaterally made, was the decision of Ferris, or

resulted from some failure to act on the part of Diogenes, who had the responsibility to emboss the

portfolios is similarly, a question of fact which is properly decided by a jury.

¶27. As a result, this Court finds that the trial judge should have denied the Motion for summary

Judgment and allowed this case to proceed to trial.

CONCLUSION

¶28. We find that the trial judge was correct in granting the defendant's Motion for Leave to File a

Dispositive Motion because M.R.C.P. 56(b) specifically holds that a Motion for Summary Judgment

is proper at any time. M.R.C.P. 6(b) is a general rule applying to the scheduling of pretrial motions

and is therefore subject to the specific provisions of M.R.C.P. 56(b). The Court finds that the trial

judge erred in granting the Motion for Summary Judgment because their existed several issues of

material fact, primarily as to whether the contract had been breached, and the effect of any such

breach on the success of the project which would preclude a grant of a Motion of Summary

Judgment for the defense.

¶29. AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR

PROCEEDINGS CONSISTENT WITH THIS OPINION.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND MILLS,

JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY.