THOMAS L. SWAREK AND THOMAS A. SWAREK
DERR PLANTATION, INC.
OF JUDGMENT: 05/07/2015
COUNTY CHANCERY COURT TRIAL JUDGE: HON. VICKI R. BARNES
ATTORNEYS FOR APPELLANTS: BENJAMIN McRAE WATSON JOHN C.
ATTORNEYS FOR APPELLEE: KENNETH B. RECTOR ROBERT R. BAILESS
COURT ATTORNEYS: ROBERT R. BAILESS KENNETH B. RECTOR LEE
DAVIS THAMES BENJAMIN McRAE WATSON
RANDOLPH, P.J., KING AND BEAM, JJ.
Thomas L. Swarek and Thomas A. Swarek, father and son, appeal
from the Issaquena County Chancery Court's finding that
no binding enforceable contract existed between the Swareks
and Derr Plantation, Inc. (DPI) for the lease and purchase
and sale of Derr Plantation to the Swareks, thus denying
Swareks' equitable-relief request for specific
performance. We affirm the judgment of the chancery court.
The Swareks are Mississippi residents, residing in Harrison
County. This action involves the father's negotiations
with DPI,  a Mississippi corporation and owner of
Derr Plantation-a tract of Mississippi Delta farmland located
in Sharkey and Issaquena Counties, Mississippi, consisting of
approximately 8, 355 acres.
Derr Plantation is owned by a German limited partnership,
Wohnbau-Gesellschaft H. Derr mbH (Wohnbau Derr), the sole
stockholder of DPI during the relevant time period of
December 2004 through May 2005. Herman Derr, age ninety-one, was
In 2003, DPI advertised Derr Plantation for sale at $10.5
million. In December 2004, Swarek sent a handwritten message
by fax to DPI, expressing an interest in buying the property
for $7 million.
Joachim Witt, an attorney in Germany working for Derr, called
Swarek and informed him that the asking price was $10.5
million. During their phone conversation, Swarek
told Witt that he was in contact with Greg Galloway, who
worked for Metropolitan Life Insurance Company (MetLife), and
that he (Swarek) could obtain financing to purchase the
property. DPI, however, rejected Swarek's offers as too
Afterward, Witt sent Swarek a letter signed by both Witt and
Derr, thanking him for his interest in purchasing the
property. Attached to the letter was a short sales prospectus
of the property.
Later that month, Swarek wrote Derr and Witt, saying he had
sent a signed contract to Paul Pillat of Transactional
Ventures, Inc. Swarek testified he sent the proposed contract
through Pillat because Witt had directed him to Pillat. DPI
had been involved with Pillat for the purpose of providing
reports regarding the property, along with interested buyers.
On January 2, 2005, Pillat sent a letter to DPI with
Swarek's offer that provided for the purchase price of $7
million. DPI again rejected the offer.
On January 13, 2005, Derr, who did not speak English, sent a
letter translated by Witt, indicating an interest in
Swarek's offer to lease the property before purchasing
it, which would increase the total consideration. Swarek had
been in telephone communications with Witt and there were
discussions about entering into a lease agreement prior to an
eventual sale. The January 13 letter contained a mention of
DPI's current tenant, James Hay, the principal of
"JAPATAHA" (a general partnership), along with the
statement, "We did not yet decide on a continuation of a
lease with him."
On January 18, 2005, Witt sent a letter to Swarek with a
drafted lease contract attached to it. The lease contract
proposed a right of first refusal for Swarek. Swarek wrote
back, indicating he was interested in leasing the farm only
in order to purchase it, and he did not want a right of first
refusal. Swarek made a number of proposals in the letter
including again, a purchase offer of $7 million.
By January 20, 2005, DPI had offered Swarek an alternative
proposal that allowed for a lease period of two years for
$250, 000 per year, with a final purchase price of the farm
for $7.5 million. DPI also proposed $50, 000 in earnest
money, and the ...