OF JUDGMENT: 11/20/2013.
FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. TRIAL
JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION:
GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE.
APPELLANT: RICHARD WILLIAM WISE; KAYTIE MICHELLE PICKETT.
APPELLEE: ROBERT R. BAILESS.
C.J., IRVING, P.J., BARNES, CARLTON, MAXWELL AND JAMES, JJ.,
CONCUR. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY ISHEE AND ROBERTS, JJ.
OF THE CASE: CIVIL - CONTRACT
This case involves the interpretation of a contract between
Highland Colony Land Company LLC (" Highland
Colony" ) and Jimmy G. Gouras, doing business as Urban
Planning Consultants Inc. (" Gouras" ). Gouras sued
Highland Colony for breach of contract and $85,700.24 in
actual damages. Both parties moved for summary judgment. The
Madison County Circuit Court granted summary judgment in
favor of Gouras. We reverse and render.
Highland Colony hired Gouras, a consultant, to assist in
locating and obtaining federal, state, and local funding,
including tax-increment financing (TIF), for real-estate
development. TIF allows a real-estate developer to develop an
area of a city, with the city paying a portion of the costs
through increased tax revenues generated from the
In 2003, Highland Colony and Gouras entered into a contract
in which Highland Colony agreed to pay Gouras a $115-an-hour
fee, as well as a bonus for any secured TIF
funding. The contract provided a bonus to
Gouras under the Grant Bonus Schedule (" Schedule"
). The bonus was established at 3% of the principal amount of
funding secured if the funding exceeded $10,000,000. The
contract specified that the 3% bonus would not apply to the
first $6,000,000 of TIF funding.
Gouras secured TIF funding with the City of Ridgeland in the
amount of $35,000,000. In June 2006, Highland Colony and the
City entered into a Security and Reimbursement Agreement
(" SRA" ). Highland Colony agreed to construct a
development on Highland Colony Parkway, and the City agreed
to issue its TIF bonds in one or more series in the principal
amount not to exceed the $35,000,000. Gouras was not a party
to the SRA.
In 2009, the City adopted a bond resolution to control the
first issuance of TIF bonds and any subsequently issued TIF
bonds. As part of the Bond Resolution, the City created a Tax
Increment Debt Service Reserve Fund to meet any principal and
interest payment deficiency in the City's bond fund for
future years. The Reserve Fund's terms provided that, if
no payment deficiency existed when the bonds matured -- 2029
at the earliest -- the City would release the money to
Highland Colony. The City issued its first series of TIF
bonds in 2009 in the amount of $24,625,000. The City withheld
$1,953,681 for deposit into the Reserve Fund. The City issued