IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00817-COA
HINDS COUNTY ECONOMIC DEVELOPMENT DISTRICT APPELLANT

v. W & G PROPERTIES, LLC AND MAGNOLIA LABEL CO., INC. APPELLEES

DATE OF JUDGMENT: 05/06/2013 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: J. LAW SON HESTER JASON EDW ARD DARE ATTORNEYS FOR APPELLEES: JUDSON MORGAN LEE HENRY TOBIAS COLEMAN NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: FOUND APPELLANT BREACHED CONTRACT; AW ARDED DAMAGES TOTALING $194,154.95, PLUS POSTJUDGMENT INTEREST OF EIGHT PERCENT TO APPELLEES DISPOSITION: REVERSED AND RENDERED - 10/25/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE ISHEE, P.J., FAIR AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. This appeal arises f r o m a c i v i l s u i t f

iled by W &G Properties LLC (“W &G”) and Magnolia Label Co. Inc. (“Magnolia Label”) ag a i n s t t he Hinds County Econom ic Developm ent District (“HCEDD”). H CEDD appeals f rom the Hinds County Circuit Court’s interpretation o f a contract and the award o f dam ages to W &G and Magnolia Label. Findingerror, we reverse and render the circuit court’s judgm ent and award of dam ages. SUMMARY OF FACTS AND PROCEDURAL HISTORY ¶2. Magnolia Labe l , a M i s s i s s i p p i c o r p o r a t i o n , ma n u f a c t u r es a dhesive labels f or

consum er retail products. W & G i s a lim ited-liability c om pany that serves as Magnolia Label’s holding com

pany
. W & G purchases a n d holds real estate and leases it to Magnolia Label. Magnolia Label’s f oun d e r a n d chief e xecutive of f icer, W ally F ields, was also the ch i e f e x e c u tive of

f icer of W & G. H CEDD i s a political s ubdivision o f the State of Mississippi, governed by

Mississippi Code Annotated section 19-5-99 (Rev. 2012). As an entity , HCEDD has the power to purchase and sell real estate. ¶3. W & G entered into n egotiations with HCEDD to acquir e f our acres of real property in the McDonald Industrial Park. On March 3, 2004, W &G of f ered to purchase f

our acres of land located within t he McDonald Industrial Park. On March 3 0, 2 0 0 4 , Jason H. Brookins, HCEDD’s executive director, s ent a letter t o Fields, m aking a counterof f er to sell the p roperty f

o r $20,000 per acre. On A pril 12, 2004, Fields pr o v i d e d H C E D D with a counterof f er t o purchase the s am e p roperty f or $16,000 per acre. O n April 28, 2004,
HCEDD authorized and approved the sale of the property to “Magnolia L abel at the price of $16,000 per acre.” Brookins executed the agreem ent dated April 1 2 , 2 0 0 4 , on behalf of
HCEDD. ¶4. W &G obtained a survey of the land f

rom D rake, Davis & Rankin Engineers on the

sam e day as closing. On May 10, 2004, the real-estate transaction closed. Brookins signed

on b ehalf of HCEDD, an d F i e l d s s igned on behalf of W &G. Magnolia Label was not a

2signatory

to this agreem ent. ¶5. In July 2004, W &G b egan construction of Magnolia L abel’s new operating f acility

. In August 2004, W &G’s contractor discovered that th e r e w a s n o power on the property

. Tem porary power h ad to be installed, delay i ng c onstruction. In January 2005, W& G’s plum bing contractor also discovered that there were no sewer lines on the property

. ¶6. W& G and Magnolia Label f iled s uit against HCEDD on March 10, 2006, s e e k i n g dam ages f

or breach of contract. H CEDD f iled its answer on May 10, 2006. HCEDD f iled

a m otion to d ism iss on J une 27, 2006, which a lleged that: ( 1) W & G could not recover under

a breach-of

-contract c l aim prem i sed u pon the language of the contract and (2) W & G’s claim s f or f raudulent m isr e p r e s e n t a t i o n , fr a u d u l e n t i n d u c e m e n t , n egligent m isrepresentation, breach of the duty of disclosure, a nd breac h o f the c ovenant of good f aith and f air d ealing were barred b y t he one-y ear s tatute of lim itations under the Mississippi Torts Claim s Act ( MCTA). The trial court denied this m otion on March 2, 2009. ¶7. A bench trial began on June 6, 2011. At the s tart of trial, W &G dism i ssed all of its

torts claim s and proceeded s o l e l y o n the breach-of -contract claim

. The t rial concluded on June 10, 2011. On April 25, 2013 the trial court entered its opinion and order f inding that the contract between the parties was breached. Explaining this ruling, the trial court stated:

O n March 3, 2004, Magnolia Label of f ered to purchase f

our acres o f property f

or $11,250.00 p er acre. T h i s of f er, m a d e o n a f

orm provided by HCEDD, w as rejected whe n H C EDD sent a M arch 30, 2004[ ] counter-of f er f or Magnolia Label to purchase t he f our acres f

or $20,000.00 p er acre. On April 12, 2004, on an HCEDD f orm , a counter-of

f er w a s m a de f

o r W &G to purchase the f

our acres f

or $16,000.00 per a c re. On A pril 2 8, 2004, this counter-of

f er was rejected when H CEDD’s Board res o l v e d to s ell the f o ur acres f or $16,000.00 t o Magnolia Label rather than W &G. On May 10, 2004,

3the property was t r a n s f e r r e d at closing to W & G properties a nd pay m e n t of $64,000.00 w as m ade t o HCEDD. The closing on this convey a n ce am o unted to a counter-of

f er. “A reply t o an of

f er which purports t o accept i t but is conditional o n t h e o f

f eror’s assent to term s additional to o r dif f erent f rom those of f e red i s not an acceptance but a counter-of f er.” Restatem ent (Second) of Contract s § 5 9

. The Court f inds HCEDD a c cepted this counter-of f er by closing on the property

. The Court f

urther f inds H C E D D agreed to sell t he property in the McDonald Park with s e wer lines running through the f rontage road portion of said property and 3-phase electrical power on-site. The evidence at trial established that all of the parties believed s ewer l ines ran directly underneath the property along t he f rontage ro a d a nd 3-phase power was within the conf ines of [ the] i ndustrial park. [ Benjie] Barham , [ Jason] Brookins, a nd Dr. [ George] F r ench all adm itted they believe t here were sewer lines r unning through the property at the tim e i t was sold. Additionall y , B arham testif ied that he represented 3-phase power was located “on[ -]site.”

. . . . The Court next determ in e s w h e ther t here are writings between the parties suf

f icient to satisf

y t h e s t a t

ute of f r auds. HCEDD c ontends the Agreem ent f

or Purchase and Sale of Real Estate dated A pril 12, 2004, between HCEDD and W & G is controlling. The Court d isagrees. As it asserted at trial, HCEDD is an econom ic d e velopm ent district that speaks through t he m inutes of its Board of

Trustees. See Miss. Code § 19-5-99(5)(a). HCEDD’s Board did not attach the April 12, 2004[ ] Agreem ent f o r Sale and Purchase of

Real Estate to i ts m inutes u ntil February 7 , 2005, af ter Magnolia Label com

plained about the lack of utilities. Moreover, the d ocum ent was attached without any ref erence to it in the m inutes. The Court d o es, however, look to HCEDD’s m inutes f or guidance. On A p r i l 2 8 , 2 0 0 4 , HCEDD approved the s ale of “f our plus acres of l and in the McDonald Park to Magnolia Label

. . . a t the price o f $ 1 6 , 0 0 0

. 0 0 per acre.” This was the only entry in H CEDD’s Board m inutes ref lecting and approving the agreem ent. These signed and at t e s t e d minutes constitute a “writing” suf f icient to satisf

y the statute of

f rauds and to be enf

orced against HCEDD. See Putt v
. City of C

orinth , 57 9 S o
. 2 d 534 ( Miss. 1991). O ther writings in evi d e n c e m em orializing the agreem ent i nclude m arketing m a terials representing t hat sanitary sewer and 3-p h a s e power are “on-site,” and correspondence between the parties regarding the lack of sewer.

4¶8. On May 6, 2013, the trial court entered a judgm ent of $194,154.95, plus postjudgm ent

interest of eight percent. O n May 16, 2013, H CEDD f iled its notice of appeal a n d a m otion

to a lter or am end the judgm ent as to the postjudgm ent interest. O n Septem ber 30, 2013, the trial court denied that m otion. HCEDD tim e ly appealed raising the f ollowing contentions: (1) t h e t r i a l court erred in concluding that HCEDD breached a contract with W &G and Magnolia Label, and (2) the trial c o u r t e rred i n a warding dam ages to W &G a nd Magnolia Label f or the alleged breach of

contract. STANDARD OF REVIEW ¶9. F i n d i n g s o f f

a c t ma d e by a trial court w ill n ot be disturbed when support e d b y substantial evidence, unless we can say with reasonable certainty that the trial c ourt abused its d i scretion, was m anif estly w rong or clearly e rroneous, or applied an erroneous legal standard. W

hite v. Cooke , 4 So. 3d 330, 333 (¶12) (Miss. 2009). “Fo r q uestions of law, however, we apply a de novo s tandard. Questions concerning t he construction of contracts

are questions of law that are com m itted to the court rather than q uestions o f f

act com m itted

to the f act-f inder.” I ndus. & Mech. Contractors o f Memphis Inc. v. Tim Mote Plumbing LLC , 962 So. 2 d 632, 636 ( ¶8) ( M iss. Ct. A pp. 2007) (internal citations a n d quotation m arks

om itted).
DISCUSSION
I. Whether the t rial court erred in finding that HCEDD breached a contract w ith W&G and Magnolia Label. ¶10. The b reach-of

-contract claim relates to whether W & G contracted f or t he presence of

a sewage sy stem and t hree-phase electrical p ower in the agreem ent to purchase land a t

5McDonald I ndustrial Park. “The elem ents of breach of contract are: (1) the existence o f a

valid and b i n d i n g c ontract; (2) breach of the contract by t he def endant; and (3) m oney dam ages suf

f ered by the plaintif

f .” Guinn v. W

ilkerson , 963 So. 2d 555, 558 (¶8) (Miss. Ct. App. 2006). For this reason, we f i rst m ust determ i ne if a v alid and binding contract existed.
A. Whether t he agreem e n t for t he sale and purchase o f real estate dated April 12, 2004, is a v alid and binding c ontract. ¶11. In its com

p laint, W &G alleged that the April 12, 2004 agreem ent was t h e c o ntract
upon which its claim was f ounded. HCEDD adm itted in i ts answer that the April 12, 2004
agreem ent was executed between the parties. At the beginning of trial, W &G p r o c eeded under a t heory of f

raud or m i stake. HCEDD, in response, m ade t he trial court aware that it would not try the issue of m u tual m istake by consent. W &G, nevertheless, argued that the April 12 agreem ent should be m o dif ied to include provisions related to a s e w e r l i n e and three-phase e l e c trical-power capabilities on the property

. The trial court, however, did not hold t hat the agreem ent should be m odif ied and f ound, i nstead, that the A pril 12 agreem ent

w a s n o t the c ontract at issue b etween HCEDD and W &G. The t rial court f ound that a
contract was created between the parties when t hey closed on the property o n May 10, 2004. The trial court then looked to H CEDD’s m inutes and o ther writings in evidence to establish the term s of

that agreem ent. ¶12. The Mississippi S upre me C o u r t h a s consistently held that the e lem ents of a valid

contract are: “(1) two or m ore contracting p arties, (2) c o n s i deration, (3) an agreem ent that is suf f iciently def

inite, (4) parties with legal capacity to m ake a contract, (5) m utual assent, and (6) no legal prohibition p recluding c ontract f orm ation.” Rotenberry v
. Hooker , 864 So.

62d 266, 270 (¶13) (Miss. 2003). M oreover, it is well established that the court should f irst

exam ine the f

our corners of

the contract to determ ine how to interpret it. Id

. at (¶14). The intent of the contract m

ust be ef f ectuated if the contract’s language is clear and u nam biguous. Id

. The court should only look to extrinsic evidence when the intent o f t h e parties is not clear. I d

. ¶13. W h en deter mi n i n g t h e i ntent of the parties, we have to take i nto consideration that
HCEDD is an econom ic d evelopm ent distri c t operating under s ection 19-5-99 of the Mississippi Code Annotated. HCEDD, theref ore, i s bound by the public-contracts doctrine.
It is well settled that HCEDD “can act only as a body , a nd its a ct m ust be evidenced by an entry on its m inutes. The m inutes of the board o f s u p e r v i sors are t he sole and exclusive evidence of what the board did.” Cmty. Extended Care Ctrs. Inc. v. Bd. of Supervisors for Humphreys Cty. , 756 So. 2 d 798 , 8 0 2 ( ¶ 1 7 ) ( M i ss. Ct. App. 1999). The f act that in som e instances the rule m ay work an a pparent injustice does not negate the stringent requirem ent.
But l e r v. Bd. of Supervisors for Hinds Cty. , 659 S o. 2d 578, 582 ( Miss. 1 995). The Board is only bound by a contract entered upon its m inutes. Id . at 581. ¶14. The trial court held that the April 28 m inutes were a f orm al rejection of the April 12
agreem ent because t he B o a r d authorized Brookins t o contract with Magnolia L abel, not
W & G. T he trial court, instead, f ound that W &G’s participation in the closing constituted a counterof f er that HCEDD accepted on May 10, 2004. ¶15. W e disa g r e e
. O n April 12, 2004, Fields provided HCEDD with a counterof f er to purchase the f

our-plus a cres f

or $16,000. On April, 28, 2004, the Board a u t h o r i z e d and

7approved the sale of the p r o p e r t y a t the price of $16,000 per acre t o Magnolia Label.

Brookins executed the April 12 agreem ent on behalf of HCEDD. On M ay 10, 2004, both parties signed a closing docum ent that stated that the property listed in the closing docum ent

was being sold “ as def

i ned in the agreem ent f

or sale and purchase of real estate, dated April 12, 2004 ” (em

phasis a dded). And on February 7, 2 005, t he April 12 agreem ent was attached to HCEDD’s Board’s m inutes. The May 10, 2004 closing d ocum ents were never attached

to the Board’s m inutes and, thus, cannot be the contract between the parties. Furtherm ore, Magnolia Label was not a s ignatory on the May 10 closing statem ent. W e f ind t hat Magnolia Label is not a party to the April 1 2 contract. W e also f ind that t he April 12 agreem ent is the

c o n t r a c t a t issue b e tween W & G and HCEDD b ecause the agreem ent s atisf ies all of th e elem ents of

a valid contract. ¶16. The f

ollowing are pertinent excerpts f rom the April 12 contract:
A GREEMENT FOR SALE AND PURCHASE OF REAL ESTATE This A greem ent f

or Sale and Purchase of Real Estate ( “Agreem ent[ ” ]) is m ade and entered into on the 12[ th] d ay of April, 2004, by and between the Hi n d s C o u

n t y E c o n o m i c D e velopm ent District (“Seller”) and W &G Properties (“Buy er”). Seller and Buy er agree as f ollows:
1. PROPERTY

. S e l l er agrees to sell to Buy er, and Buy er agrees to purchase f

rom Seller, a parcel o f l a nd situated in t he 1 st Judicial District of Hinds C ounty , Mississippi, and m o re particularly d e s cribed on Exhibit A attached hereto and incorporated herein by this ref erence (the “Property ”).
2. PURCHASE PRICE

. The purcha s e p r i c e fo r t h e P roperty s hall be Per acre Price of $16,000.00 Per a cre f or 4 + - acres DOLLARS ($16,000.00). The purchase price shall be paid to Seller at the closing. The purchase price m ay be paid in cash, but not over $1,000.00, or by certif ied check of Buy er or
8cashier’s check or of f icial check of any bank, savings b ank, trust com pany or savings and loan association ha v i n g a banking of f ice in the S tate of Mississippi, pay able to the order of Seller.

. . . . 7. CONDITION OF PROPERTY

. Buy er’s obligation to purchase the Property s hall be c o n t i n gent upon delivery o f the Property in its p resent condition. In the event of m aterial dam age t o the Property b y f ire o r other casualty bef

ore the closing, Buy er m ay ([ i]) by w ritten n o t i c e to Seller, term inate t his A greem ent, o r (ii) take an assignm e nt of a ll insurance p roceeds, if a ny , f r o m Seller a nd purchase the P roperty in its c urrent condition. B uy er represents and warran ts that it is or, prior to closing shall becom e, f am iliar with the condition of the Prope r t y . S ELLER HAS NOT MADE AND MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PROPERTY, E X PRESS OR I MPLIED, INCLUDING, WITHOUT LIMITATION, ITS HABITABILITY, CONDITION OR FITNESS FOR ANY PARTI C U LAR USE OR PURPOSE. BUYER AGREES THAT THE PROPERTY S HALL BE CONVEYED BY SEL L ER AND ACCEPTED BY BUYER IN AN “AS IS” CONDITION EX ISTING O N THE D ATE POSS E S S I ON O F THE PROPERTY IS TRANSFERRED TO BUYER.

. . . . 9. REPRESENTATIONS

. Buy er has not relied upon any statem e nt or other inf orm ation m ade to any person, direc t l y o r i n d irectly , orally o r in writing, by seller or any person action on b ehalf o f S e ller, and Buy er hereby releases S eller, its attorney s , em ploy ees, agents and r epresentatives, f rom any liability and responsibility arising f rom any such statem ent or i nf orm ation and any inaccuracy

or incom p leteness thereof

.

. . . . 11. DUE DILIGENCE

. B uy er and i t s a gents, representatives and appraisers shall have f

ull access to the Property during the p eriod of f orty -f ive (45) day s f

ollowing the Ef

f ective Date in which to inspect a n d o btai n inf orm ation concerning the Property

. In the event Buy er shall d eterm ine, in its sole discretion, that i t will not purchase the Property , Buy er m ay , d u r i n g such 45-day period, notif y Seller i n writing of such determi n a t ion, in which event the Agreem ent shall be term i nated and B uy er s h a l l h ave n o f urther obligations hereunder.

912. ENTIRE AGREEMENT; BINDING E F F ECT

. All prior

understandings and agreem ents between Seller and Buy er a re m erged into this Agreem ent a nd this Agreem ent represents the e n t ire agreem ent between the parties. This Agreem e nt shall be binding upon the heirs, executors, adm inistrators, successors and assigns of the respective parties.
13. AMENDMENTS

. This Agreem ent m ay be am ended solely by an instrum ent in writing executed by both the parties.

. . . . 15. ASSUMPTION OF LIABILITY

. Buy er agrees t o a ssum e and to waive, release, indem nif y , def end and hold harm less Seller, i t s t r ustees, em ploy ees, agents and representatives f rom and against all c laim s, dem ands, dam ages, c osts and expenses, including legal f ees, c ourt costs, awards, settlem ents, judgm ents, penalties, f ines, liens o r causes o f a c tion, at law or in equity , arising out of

or relating to the ownership or use of the Property

af ter the closing. T h e provisions o f this section shall survive t he c losing, and provisions substantially sim ilar to these shall be i ncorporated in the deed convey ing the Property

to Buy er. (Em phasis in original). ¶17. This Court also m

ust determ ine if the A pril 12 contract i ncluded an agreem ent to sell the property with sewer lines and three-phase electrical powe r o n - site. W &G argues that Brookins’s assurance, as the Board’s representative, that the f our acres had power and sewer lines was properly

adm itted as p arol evidence to prove that these provisions were a part of the April 12 agreem ent. W e disagree, because t his argum e nt is co n t r a ry to our precedent. Under o u r law, parol e vidence is not adm issible to s how what action the Board took because the Board’s m i nutes are the e xclusive evidence of what t he Board did. Myers v. Blair , 611
S o
. 2 d 969, 972 (Miss. 1992). O nly t he Board, through its m inutes, could have m ade s u c h representations to W &G f o r those assurances to be adm i tted as parol evidence.

1 0¶18. In this case, it is u ndisput e d t h a t there is nothing in the m inutes of any m eeting of

HCEDD’s Boar d o f S u

p e r v i s o rs that records or ref

e r ences representations that sanitary sewer and three-phase power were on t h e p r o perty at issue. Moreover, the m inutes show that Brookins w as only authorized to enter into the April 12, 2004 agreem ent that was later signed by both p arties. Nowhere i n that A pril 12 agreem ent does it i ndicate that W & G would only purchase t he land if power and s ewer lines were present. The April 12 agreem ent was clear and unam biguous, and the trial court should not have lo o k e d o u t s i d e i ts f our corners to determ ine the parties’ i ntentions. Once the Board authorized Brookins to sell the property according to the April 12 agreem ent, W &G’s of f er to p urchase the property on the April 12
agreem ent created a valid contract.

B. Whether there w as a valid breach-of-contract claim under the agreem ent of sale dated April 12, 2004. ¶19. “Under M ississippi law,

. . . p a r t i e s t o a c ontract h ave an inherent duty t o read the

term s of a contract p rior t o signing.” Brown v. Anderson , 80 S o. 3d 878, 881 ( ¶9) (Miss. Ct. App. 2012). “[ A] party m ay n either neglect to becom e f am i liar with the term s and conditions and then later com

plain of lack of knowledge, nor avoid a written contract m erely because he or she f

ailed t o read i t o r have som eone else read and explain it.” Id

. The trial court f ound that HCEDD breached its contractual obligation because the property f ailed to have

a s ewer l ine and three-phase power. But the prom ise t hat a sewer line and three-phase power line would be on-site i s not f ound within the f

our corners of the April 12 agreem ent. This
agreem ent, however, contains an “as is” provision, which states: Seller has not m ade and m akes no w arranties or r epresentations regarding the

1 1property , express o r im plied, including, wi t h o u t lim i tation, its habitability , condition or f

i tness f or any particular u se o r purpose. Buy e r agrees that the property shall be convey ed by seller and accepted b y buy er i n a n “ a s i s” condition existing on the date posses s i o n of the property i s t ransf erred to buy er. ¶20. The “as is” clause in the agreem ent exem p ted HCEDD f

rom l iability pertaining to the condition of the property

. See Beaumont Homes L LC v. Colonial/Jordan Props. LLC , 71 So. 3d 1238, 1240 (¶8) (Miss. Ct. App. 2011). There are no contentions bef ore this Court that
W& G i s n o t a s o phisticated party in the business o f purchasing real estate and did not understand the t erm s of the c ontract. W &G theref o re is bound by the m

u tually agreed upon
term s of the April 12 agreem ent, which releases HCEDD f rom any liability pertaining to the condition of

the property

. II. Whether the trial court erred in a w arding dam ages to W&G and Magnolia Label for the breach of contract. ¶21. Because H C E D D d i d n o t b r e a c h the April 1 2 agreem ent, the t rial c o urt erred in awarding dam ages t o W &G. See g enerally Indus. & Mech. Contractors o f Memphis, 962 So. 2d at 637 (¶15).
CONCLUSION ¶22. The April 12 agr e e me n t created a contract between HCEDD and W & G. The trial

court erred b y f

inding that W &G and Magnolia Label had a viable breach-of

- contract claim

. Accordingly , we f

ind t hat the trial court erred by entering a judgm ent against HCEDD. W e

reverse the judgm ent in f

a vor of W &G and Magnolia L abel, deny ing all relief sought by both parties, and render a judgm ent in f avor of HCEDD as a m atter of

law. ¶23. THE JUDGMENT O F THE CIRCUIT COURT OF HINDS C OUNTY, FIRST

1 2JUDIC I A L D I S TRICT, IS REVERSED A ND R ENDERED. ALL COSTS OF THIS

APPEAL ARE ASSESSED TO THE APPELLEES. GRIFFIS, P .J., BARNES, ISHEE, FAIR, WIL S ON AND G REENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., AND CARLTON, J ., NOT PARTICIPATING.

1 3