Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swarek v. Derr Plantation, Inc.

Supreme Court of Mississippi

April 6, 2017

THOMAS L. SWAREK AND THOMAS A. SWAREK
v.
DERR PLANTATION, INC.

          DATE OF JUDGMENT: 05/07/2015

         ISSAQUENA COUNTY CHANCERY COURT TRIAL JUDGE: HON. VICKI R. BARNES

          ATTORNEYS FOR APPELLANTS: BENJAMIN McRAE WATSON JOHN C. HENEGAN

          ATTORNEYS FOR APPELLEE: KENNETH B. RECTOR ROBERT R. BAILESS

          TRIAL COURT ATTORNEYS: ROBERT R. BAILESS KENNETH B. RECTOR LEE DAVIS THAMES BENJAMIN McRAE WATSON

          BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.

          BEAM, JUSTICE.

         ¶1. 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.

         FACTS

         ¶2. The Swareks are Mississippi residents, residing in Harrison County. This action involves the father's negotiations with DPI, [1] 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.

         ¶3. 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.[2] Herman Derr, age ninety-one, was DPI's president.

         ¶4. 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.

         ¶5. Joachim Witt, an attorney in Germany working for Derr, called Swarek and informed him that the asking price was $10.5 million.[3] 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 low.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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."

         ¶10. 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.

         ¶11. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.