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Thompson v. Griffith

August 18, 1998

TIMOTHY T. THOMPSON, APPELLANT
v.
JACK GRIFFITH, APPELLEE



Before Bridges, C.j., Hinkebein, And Payne, JJ.

The opinion of the court was delivered by: Payne, J., For The Court:

Thompson v. Griffith, 97-CA-00409-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 02/19/97

TRIAL JUDGE: HON. ANDREW CLEVELAND BAKER

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT IN FAVOR OF, APPELLEE

DISPOSITION AFFIRMED

PROCEDURAL HISTORY

On November 16, 1994, the Appellee, Jack Griffith, filed his complaint against the Appellant, Timothy Thompson, and Don Duckworth. On December 2, 1994, Don Duckworth proceeded without an attorney and filed his answer. On May 23, 1995, Griffith filed an entry of default against Thompson. On May 30, 1995, Griffith filed his motion for default judgment and motion for summary judgment as to Don Duckworth.

On June 21, 1995, Thompson, having retained an attorney, attacked the default on grounds that process had been improperly served. Two days later, the motion for summary judgment as to Don Duckworth was heard. The circuit court granted summary judgment in favor of Griffith as to Duckworth. On June 23, 1995, Thompson executed a waiver of process agreeing to enter an appearance in the cause and to file his response to the complaint within thirty days.

On December 6, 1996, Griffith filed his motion for summary judgment against Thompson. The hearing on the motion for summary judgment was held on February 13, 1997. On February 25, 1997, an order granting summary judgment was entered against Thompson. Feeling aggrieved, Thompson perfected his appeal. Having read the record and the applicable law concerning this issue, we uphold the circuit court's judgment.

FACTS

Jack Griffith learned that Don Duckworth and Timothy Thompson were seeking venture capital to be utilized for the purchase of equipment and to commence the operation of a barbeque restaurant. A loan agreement and promissory note were drafted, then executed by both Duckworth and Thompson on March 18, 1993, for the benefit of Griffith. In return, Griffith tendered over $25,000 in order to financially support this enterprise.

The restaurant was established and began operation in April 1993, and continued operation until July of 1993, when the restaurant closed. Griffith claims that he was not repaid any sum on the promissory note by either Duckworth or Thompson. To that end, he seeks recovery from Thompson.

Thompson, by affidavit, stated that it was his belief that in the future, Pig-E-Back Bar-B-Q, Inc. would be a Tennessee corporation. By deposition, Thompson stated that he believed that there was never any conversation about forming a corporation in Mississippi.

STANDARD OF REVIEW

This Court, as well as the Mississippi Supreme Court, employs de novo review of a trial court's award of summary judgment. McMichael v. Nu-Way Steel and Supply, ...


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