IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-02152-COA HIGHLAND COLONY LAND COMPANY LLC APPELLANT

v. JIMMY G. GOURAS D/B/A URBAN PLANNING CONSULTANTS APPELLEE

DATE OF JUDGMENT: 11/20/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: RICHARD W ILLIAM W ISE KAYTIE MICHELLE PICKETT ATTORNEY FOR APPELLEE: ROBERT R. BAILESS NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE DISPOSITION: REVERSED AND RENDERED: 06/16/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. T h i s case involves the interpretation of a contract b etween Highland C olon y L a n d
Com pany LLC (“Highland Colony ”) and Ji mmy G

. Gouras, doing business as Urban Planning Consultants Inc. (“Gouras”). Gouras sued Highland Colony f or breach of contract and $85,700.24 i n actual dam ages. Both pa r t i e s mo v ed f o r sum m ary judgm ent. The Madison County Circuit Court g ranted sum m ary judgm ent in f a vor of Gouras. W e reverse and render.
FACTS¶2. Highland C olony hired Gouras, a consult a n t , t o a s s i s t i n l o c ating and obtaining

f ederal, sta t e , a n d l ocal f

u nding, including tax-increm ent f inancing (TIF), f

o r r eal-estate developm ent. TIF allows a real-estate developer to develop an area of a city , with the city
pay ing a portion of the costs through increased t a x r evenues generated f rom the d evelopm ent. ¶3. In 2003, Highland C o l o n y a n d G o u ras entered into a contract in which Highland Col o n y a g r e e d to pay G ouras a $115-an-hour f e e , as well as a bonus f

or a n y s ecured TIF f und i n g . 1 T he contract provided a bonus to Gouras under the Grant Bonus Schedule (“Schedule”). The bonus was e stablished a t 3% of the principal a m ount of f unding secured
if the f unding exceeded $10,000,000. The contract specif ied that the 3% bonus would not apply to the f i r st $6,000,000 of

TIF f unding. ¶4. Gouras secured TIF f unding with the City of Ridgeland in the am o unt of $ 35,000,000.
In J u n e 2 0 0 6 , Highland Colony a nd t he City entered into a Security and Reim bursem ent A g r e e me n t (“SRA”). Highland Colony agreed to construct a developm ent o n Highland Colony Parkway , and t h e C i t y a greed to issue its TIF bonds in one or m ore series in the principal am ount not to exceed the $35,000,000. Gouras was not a party to the SRA. ¶5. In 2009, the City adopted a bond resolution to control the f irst issuance of TIF bonds

1 T h e co n tract read s “u p o n reim b u rsem en t o f elig ib le co sts to B ailey .” H .C

. B ailey m an ag es H ig h l an d C o lo n y L a n d C o m p an y L L C

. B ailey sig n ed th e c o n t r act in h is rep resen tativ e cap acity

. T h ere is n o d isp u te t h a t “B ailey ” m ean s “H ig h lan d C o l o n y L an d C o m p an y L L C ” in th e co n tex t o f th is co n tract. L ik ew ise, th e co n tract ref erred to “U P C ,” rath er th an G o u r as. T h e p arties also ag r ee th at G o u ras w as th e assig n ee o f U rb an P lan n i n g C o n su ltan ts. 2and any subsequently issued T IF bonds. As p art of t he Bond R e solution, the City created a

T a x Increm ent Debt Service Reserve Fund to m e e t any principal and interest pay m ent def iciency in the City ’s bond f und f or f uture y ears. The Reserve F und’s term s provided that,
if no pay m ent def iciency existed when the b onds m atured – 2029 at the earliest – the City would release the m oney

to Highland Colony

. The C ity issued its f irst series of

TIF bonds
in 2 009 in the am ount of $24,62 5 , 0 0 0

. T h e C ity withheld $1,953,681 f or d eposit into the
R e s e r v e F u n d

. The City i ssued its second series of TIF bonds in 2011 in the a m ount of $10,375,000, withholding $903,024 f or deposit into the R eserve F und. So the City placed a total am ount of

$2,856,675 in the f

und. ¶6. Highland Colony paid Gouras $884,299, which represented his hourly f ee, and a 25% bonus. A t the tim e of the 2009 bon d i ssue, Highland Colony paid Gouras 3% of the total bond proceeds as provided in the S chedule, including proceeds placed in the Reserve Fund. For the 2011 bond issue, however, Highland Colony did not pay Gouras any

percentage of what was h eld in the Reserve Fund. Instead, H i ghland Colony withheld pay ing the 3% bonus

on the am o unt placed in t he Reserve Fund, and, as w ell, withheld an am o unt equal to the 3% Highland Colony had previously paid Gouras f rom the 2009 bonds. Gouras objected, and, af ter an exchange of letters, h e sued Highland Colony , claim ing Highland C olony owed h im the balance due o n his 3% b o nus based on the f u ll am ount of the proceeds s ecured and paid

to H ighland Colony , whether directly o r into the Reserve Fund. The balance due, as agreed by both parties, w as $85,700.24. Highland Colony m oved f o r sum m ary judgm e n t, claim ing

3the am ount was not y et due u nder the term s of the contract. Gouras f i led a cross-m otion f

or

sum m ary judgm ent, which the circuit court granted.

STANDARD OF REVIEW ¶7. This Court reviews g r a n t s o f sum m ary j udgm ent de novo. B r adley v. Kelley Bros.
Contractors , 117 S o. 3d 3 31, 336 ( ¶21) (Miss. Ct. A pp. 2013). Sum m ary judgm ent is proper when there is no genuine issue of m aterial f act and the m oving party is entitled to a j udgm ent

as a m atter of

law. M.R.C.P. 56(c).
D ISCUSSION ¶8. “Questions concerning construction of contracts are questions of law.” Chapel H i ll
LLC v. SoilTech Consultants Inc ., 112 So. 3 d 1 0 97, 1099 (¶10) (Miss. Ct. App. 2013) (citation and quotation o m itted). F urther, “ [ w]hen a contract is clear and u nam b iguous, this
Court is not ‘concerned with what the parties m ay have m eant or intended b u t r a t h e r w i t h what they said, f

or the lang u a g e em

ploy ed in a contract is the surest guide to what was intended.’” Id . (quoting Shaw v. Burchfield , 481 So. 2d 247, 252 (Miss. 1985)). ¶9. Highla n d C o l o n y a n d G o u r a s a g r e e t h a t t he contract is unam biguous and that

sum m ary judgm ent is proper. They also agree t hat t he Schedule, included i n t h e i r 2003 contract, controls Gouras’s pay m en t o f $85,700.24. T he sole issue o n appeal is when the
pay m ent is due. The r elevant portion of t he Schedule p rovides t hat “ f o r T a x I n crem ent Financing, bonus shall be paid 25% upon execution of the p roject agreem e nt/security and

r e im b ursem ent agreem ent, and the balance shall be paid upon reim bursem e n t o f e l i g i b l e c o s t s

4to [ H ighland Colony .]”

¶10. The p arties ask this Court to determ ine whether H ighland Colony h a s b e e n reim bursed
f or eligible costs pu r s u a n t to the Schedule. Highland Colony claim s t hat som e “reim b ursem ent of e ligible costs” is still located in t he Reserve Fund, so it cannot pay Gouras the rem a inder until the m o ney is released (2029 f

or the 2 009 bonds, and 2031 f or the 2011 bonds). Gouras claim s that Highland C olony already received suf f icient “reim

b ursem ent of eligible costs” f

r om th e 2 0 0 9 a n d 2 0 11 bonds to allow it to pay the rem aining $ 85,700.24 upon its receipt. Gouras also argues that the SRA between Highland C o lony and the City , which did not exist when their contract was e x e c u t e d, has no bearing on when he is owed under the Schedule. ¶11. Highland Colony contracted with Gouras f o r his expertise a n d a s sistance to obtain public f inancing f or a real-estate developm ent. Gouras was s uccessf u l. He w as able to assist Highland Colony in a com plex f inancing arrangem ent. For his ef f orts, u nder the agreem ent, Gouras was well com

pensated. Highland Colony paid Gouras $884,299 a s com pensation. ¶12. Ultim ately , t he City retained $2,586,675 of the TIF f u n d s i n t h e R e s e r v e F u n d

. Highland Colony and Gouras a gree that Gouras i s owed $85,700.24 as com pensation, under the a greem ent, f

or the am ounts retained in the Reserve Fund. In this lawsuit, Gouras claim s he is owed the $85,700.24 n ow. Highland C olony argues that he is t o be paid when Highland Colony actually receives the $ 2,586,675 f r om the Reserve Fund. The only dispute is when Gouras is to be paid.

5¶13. The trial court held that “[ Highland Colony ]’s ‘reim bursem ent of eligible costs’ f rom the second b o n d i s s u e was more than sufficient to pay [ Gouras] all [ G ouras] was due in bonus p a y

m ents f rom that issue.” ( E mp h asis added). As a result, the trial court ordered Highland Colony to pay Gouras his percentage of t he f unds held in t he R e s e r v e Fund. In

essence, the trial court required H ighland Colony t o p ay Gouras com pensation even though Highland Colony has not received the f ull $35,000,000. As a result, t he trial court read the controlling contractual language to not require that Highland Colony “actually receive” all the f unds used f

or the project. ¶14. W e disagree. The agreem ent between Highland Colony and Gouras established when
Gouras is due t he bonus pay m e nt: “[ F]or Tax Increm ent F inancing, bonus shall be paid 25%
upon execution of project agreem ent/security and reim bursem ent agreem ent, and balance sha l l be p aid upon reimbursement of eligible costs to [ Highland C

olony]

. ” (Em

phasis added). The language “balance shall be p aid upon reim bursem e nt of eligible costs to [ Highland Colony ]” m eans that Highland Colony m ust pay Gouras “ upon r eim b ursem ent of eligible costs.” As a result, we f ind that the par t i e s agreed that Gouras is to be paid when Highland Colony actually receives the m oney . ¶15. Gouras argues that the pay m ent i s t o be m a de when Gouras “secured” the pay m ent. Section 3(c) of the agreem ent sets Gouras’s bonus com p ensation: “ F or services identif ied under Subsection 2(c) a

bove, [ Highland Colony ] agrees to pay [ Gouras] based on the grant bonus schedule attached in Exhibit B, a percentage of the principal am o unt o f all sources of

6f

unding w hich [ G o u r a s ] identif ies and secures f

or [ Highland Colony ] to be used f or the Project.” Indeed, Gouras m ust s ecure f

unding f o r Highland Colony

. ¶16. The question t hen turns then to whether or when the f unds held in the R e serve Fund have been secured

. Since the City has control o f and the right to spend those f unds and not
pay them to Highland Colony if the tax revenues on the d evelopm ent are not suf f icient, we f ind that the f

unds in the Reserve Fund have not been secured. ¶17. Further, Section 3(c) p r ovides additional specif ications f or TIF f unding. It states that
Gouras shall receive a lum p-sum pay

m ent of $40,000 f

o r p reparing T IF plans, but that if
Gouras “ works w ith [ Highland Colony ] and t he City of Ridgeland to obtain additional TIF f unds f or this project, then t he bonus provisions shall apply to all f unding in excess of the original $6,000,000.” The l anguage o f the c ontract is clear that the bonus provisions apply

to f unding that is actual l y o b t a i n e d b y Highland Colony

. Again, there is no dispute that Highland Colony has not obtained the f unds held in the Reserve Fund. ¶18. F i n a lly , Exhibit B to the agreem ent contains t he controlling l anguage dis c u s s e d a b o v e , and it s tates that “ [ i]n calculating bonus pay m ents, the percentage f

actor shall be applied to the c um ulative am ounts of all grants obtained for the use and benefit o f the Project .” (Em phasis added). The f

unds held in the Reserve Fund have not b een “obtained f or the use and benef it of the Project.” Highland Colony has no ability to u se these f unds until the bonds

m ature and the City

releases the f

unds. ¶19. Under the dissent’s interpretation, if upon m aturity the City of Ridgeland does not pay

7Highland Colony the f unds held in the Reser v e Fund, we can only assum e that Highland Colony would then have an action against G oura s f o r t h e r e turn of the $85,700.24 since it was not ultim ately

“secured.” Such cannot be the case. ¶20. In conclusion, we a r e of the opinion that H ighland C olony owes Gouras the m oney when Highland Colony is reim burs e d o r a c t u ally paid t he f unds. For these reasons, we

reverse the s um m ary judgm ent entered i n f avor of Gouras and render sum m ary judgm ent in
f avor of Highland Colony

. ¶21. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF T HIS APPEAL ARE ASSESSED TO THE APPELLEE.
LE E , C . J . , I R

V I N G , P . J . , B A R

N E S , C A R L T ON, MAX W ELL AND J AMES, JJ., CONCUR. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE AND ROBERTS, JJ. FAIR, J., DISSENTING: ¶22. I m

ust respectf

ully dissent as I f

in d t h a t c i r c u i t judge correctly held that Highland Colony should not delay pay m ent to Gouras of t he balance o f his com pensation i n a n am ount agreed on by

both parties. The Schedule f or pay m e nt d oes not s pecif

y t hat, as the m ajority holds, in order f

or Gouras to be p aid, Highland Colony m ust “actually receive” a ll the f unds

u s e d f or the Project. Am ounts suf f icient t o pay Gouras’s f

ees of $85,700.24 were paid directly to Highland Colony in the am ount of $32,143,325 with the rem a inder placed into the Reserve Fund. In context, the total am ount due Gouras, to b ecom e pay able as adjudicated by the m ajority in 2029 and 2031, is a little m ore than a quarter of 1% (.00266619% actually )

8of

what was paid to Highland Colony

. ¶23. Gouras f

u lf i lled his obligation under the 2003 c ontract when he secured $35,000,000
in f undin g f o r the P roject. His f

ees were pay able when alm ost 99.75% those f unds were disbursed to Highland Colony

. The $35,000,000 was “obtained f or the use and benef

it of the Project,” a s specif

ied in the contract between Highland Colony and Gouras. Any delay
f or release of all of those f unds to Highland Colony to pay those e xpenses w as the result of

an agreem ent to which Gouras was n o t a p arty

. Thus, H i ghland Colony should not delay
Gouras’s pay

m ent b ased on the SRA or the C ity ’s subsequent creation of the Reserve Fund. Highland Colony ’ s ensuing d ealings with t he City does not alter his or Gouras’s perf orm ance under the 2003 contract. I would af f irm the ci r c u i t c o u rt’s grant of s um m ary j udgm ent in
f avor of Gouras. ISHEE AND ROBERTS, JJ., JOIN THIS OPINION.

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