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Highland Colony Land Co. LLC v. Gouras

Court of Appeals of Mississippi

June 16, 2015

HIGHLAND COLONY LAND COMPANY LLC, APPELLANT
v.
JIMMY G. GOURAS D/B/A URBAN PLANNING CONSULTANTS, APPELLEE

          DATE OF JUDGMENT: 11/20/2013.

          COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE.

         FOR APPELLANT: RICHARD WILLIAM WISE; KAYTIE MICHELLE PICKETT.

         FOR APPELLEE: ROBERT R. BAILESS.

         LEE, 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.

          OPINION

         NATURE OF THE CASE: CIVIL - CONTRACT

         EN BANC.

         GRIFFIS, P.J.

         [¶1] 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.

         FACTS

         [¶2] 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 development.

         [¶3] 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.[1] 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.

         [¶4] 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.

         [¶5] 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 its ...


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