CLEMENT B. SAUCIER, JR., APPELLANT
THE PEOPLES BANK OF BILOXI, MISSISSIPPI, THE WALLACE STEVE SEKUL FAMILY TRUST, ELIZABETH SEKUL, INDIVIDUALLY AND THOMAS J. SLIMAN, INDIVIDUALLY, APPELLEES
DATE OF JUDGMENT: 10/25/2011.
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. KATHY KING JACKSON. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO DEFENDANTS/APPELLEES.
FOR APPELLANT: JAMES H. COLMER JR., WILLIAM ALEX BRADY II, ASHLEY ELEY CANNADY, CELENA DAWN ROUSE.
FOR APPELLEES: ROBERT C. GALLOWAY, DAVID A. WHEELER.
BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - CONTRACT
¶1. After a portion of his property was taken by eminent domain, Clement B. Saucier Jr. filed suit against the sellers and mortgagor of the property. He argued that they breached the duty to disclose a known interest in an easement at the time of the sale. The trial court granted the defendants' summary-judgment motions and found that no duty to disclose existed because the interest expressed in the easement was speculative. We reverse and remand for proceedings consistent with this opinion.
¶2. This litigation arose as a result of the sale and purchase of approximately eighty acres of undeveloped land in Vancleave, Mississippi. Saucier bought the property from Elizabeth Sekul, an eighty-year-old widow, and the Wallace Steve Sekul Family Trust. Sekul and the Trust each owned one-half of the property. Sekul was the sole beneficiary of the Trust.
¶3. In April 2006, approximately three months before the sale was completed, a representative of South Mississippi Electrical Power Association (" SMEPA" ) sent two letters to Sekul that requested permission to survey the property. Sekul admitted that she received one of the two letters, but could not recall which one.
¶4. The first letter was dated April 11, 2006. It stated:
[SMEPA is] in the process of doing a preliminary survey to route a 69 KV transmission line in Jackson County to help improve the electric service in the area. In order to complete this survey we are asking your permission to do a preliminary survey across your property located in . . . Jackson County, Mississippi. The survey will consist of the survey crew walking across the property establishing a centerline and outside boundaries. The right-of-way required will be 100 feet wide and will be acquired at market value in addition to market value for any timber which will need to be removed. The powerline will be constructed using single wooden poles or possibly concrete poles.
The second letter was dated April 27, 2006. It reads the same as the April 11 letter except the " 69 KV transmission line" was changed to " a 115 KV transmission line."
It also indicated that a map was attached, with the survey area highlighted.
¶5. After Sekul received the letter, she met with her long-time friend Thomas J. Sliman at her apartment. At the time, Sliman was employed as the Senior Vice President and Chief Information Officer of The Peoples Bank, Biloxi, Mississippi (" Peoples Bank" ). Sekul and Sliman discussed the SMEPA letter. During the discussion, Sekul told Sliman to " keep her in mind" if he knew of anyone interested in purchasing the land.
¶6. Within a couple of weeks, Sekul met with a SMEPA representative. Sekul asked Sliman to attend the meeting because she feared SMEPA might take advantage of her due to her age. The meeting was held at Peoples Bank.
¶7. During the meeting, the SMEPA representative offered to purchase the property for the right-of-way. Sekul responded: " I don't want to sell it to the power company[; ] please stay off my land." According to Sliman, the SMEPA representative then told Sekul, " well, we can take it by eminent domain[,] and we want to do a survey." Sekul responded: " [D]o what you have to, but I'm not willing to give you an easement." SMEPA did not contact Sekul or Sliman again.
¶8. Shortly after the meeting with Sekul and the SMEPA representative, Sliman told Saucier of the land's availability. Sliman was also Saucier's long-time banker and knew of Saucier's interest in purchasing land for development.
¶9. Neither Sekul nor Sliman ever said anything to Saucier about SMEPA's interest in obtaining a portion of the property for an easement. While inspecting the property prior to the closing, Saucier noticed survey ribbons on the property and asked Sliman if he knew what they were for. Sliman said he did not know, again saying nothing about SMEPA's interest in conducting a survey for an easement.
¶10. Sliman was involved in the negotiation for the purchase. Sliman told Saucier that Sekul wanted $10,000 an acre for the property. Saucier informed Sliman that he would make a counter-offer of $8,000 an acre. Sekul testified, in her deposition, that she was unaware of Saucier's counter-offer. Sliman then informed Saucier that Sekul insisted on $10,000 per acre.
¶11. Saucier ultimately agreed to purchase the property for the asking price of $10,000 per acre. The sales contract was prepared by a law firm used by both Saucier and Peoples Bank. Sliman reviewed the contract before having Saucier sign it. The contract was mailed to Sekul, at her home in Georgia. Sekul signed the contract and returned it. Saucier never dealt directly with Sekul or the Trust. Sliman also handled Saucier's $800,000 loan with Peoples Bank that was used to purchase the property. The closing occurred on or about July 10, 2006, and Saucier paid a purchase price of $805,500 for the property.
¶12. Two years later, SMEPA contacted Saucier and informed him that a four-and-a-half-acre easement was needed to install power lines along the road running adjacent to the property. The SMEPA representative told Saucier that Sekul had granted them permission to survey the property. In May 2008, SMEPA submitted a written offer of $12,865 per acre to purchase 4.5 acres of the property. Saucier rejected the offer.
¶13. On July 9, 2008, SMEPA then filed an eminent-domain action in the County Court of Jackson County, Special Court of Eminent Domain. SMEPA was granted possession of the property in September 2008. Saucier moved ...