OF JUDGMENT: 04/06/2015
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L.
ATTORNEY FOR APPELLANT: RENEE M. PORTER
ATTORNEYS FOR APPELLEE: JOE S. DEATON III JOHN RICHARD MAY
JR. DAVID FORD BERRY IV
This appeal considers whether the trial court properly
granted a motion to dismiss. Finding reversible error, we
reverse the Hinds Count Circuit Court's judgment and
remand for further proceedings consistent with this opinion.
In July 2009, John Eubanks and Kim Wade entered into an
"exclusive authorization and right to sell listing
agreement." Eubanks authorized Wade to sell
Eubanks's real property and residence for a commission.
Wade represented himself to Eubanks as a broker, agent, and
member of the Jackson Mississippi Association of Realtors.
Wade informed Eubanks that he would list Eubanks's
property online via the Multiple Listing Service
In September 2009, Wade found a buyer who executed an offer
to purchase Eubanks's property. Wade presented the
buyer's offer to Eubanks with a contract accepting the
buyer's offer. Eubanks noticed the "as is"
provision was stricken and initialed by the buyer. Wade
admitted he added the "as is" provision to the
contract, but the buyer refused to agree to such a provision.
Eubanks acknowledged he and Wade never discussed a warranty
provision, and there was no mention of the warranty provision
in their contract.
The buyer's mortgage application was denied by a lending
institution and the closing scheduled for the next day was
cancelled. Eubanks claims that he made numerous attempts to
contact Wade. The "for sale" signs were removed
from Eubanks's property. In November 2009, Eubanks
contends that the sale listing on MLS was removed without his
knowledge or consent. He later learned that his property was
listed on the MLS website with multiple inaccuracies. Eubanks
also discovered that Melissa Reese, a woman with whom he had
never met, was named in the listing as the agent. Further,
Eubanks contends that these actions indicated that the
agreement he had with Wade had expired.
In November 2009, Eubanks contacted the potential buyer.
Eubanks and the buyer entered into a lease/purchase agreement
in which the buyer agreed to lease the property from November
2009 through March 2010, with a balloon payment for the
balance payable March 2010. Wade removed the lock box from
the residence, but refused to return the keys to Eubanks.
Wade contacted Eubanks and threatened to put a lien against
the property for his commission in the amount of $5, 137.50,
preventing the ultimate sale of the home in March 2010.
Eubanks refused to execute an extension of the original
listing agreement, and Wade placed a lien against
Eubanks's property in this amount.
Eubanks filed a claim against Wade with the Mississippi Real
Estate Commission. Then, Wade informed Eubanks that he would
release the lien if Eubanks dismissed the complaint filed
with the Commission. Eubanks asserts that he entered this
agreement with Wade under duress. Regardless, in March 2010,
Eubanks and Wade executed a "release and cancellation of
lien." As a result, Eubanks and the buyer closed on the
sale of the property shortly thereafter. However, after the
closing, no money was exchanged and Wade renewed his lien.
Eubanks also renewed his claim with the Commission.
The Commission found that Wade committed several violations.
The Commission executed an order in July 2010 that stated
that Wade was not a participant in MLS or the Jackson
Association of Realtors at the time Eubanks's property
was listed. The Commission further found clear and convincing
evidence that Wade violated the Mississippi Real Estate
Broker License Act, codified at Mississippi Code Annotated
section 73-35-2l(1)(a) (Rev. 2012), and the Commission's
rules and regulations. Wade was sanctioned and censured.
On July 2, 2010, Wade filed a complaint against Eubanks in
the circuit court. The complaint alleged that Eubanks
breached their agreement for the sale of Eubanks's
property. Apparently, no answer was filed. On December 29,
2010, the circuit judge entered a default judgment against
Eubanks. This action was pending before a different circuit
judge. Eubanks claimed that he was never served with the
complaint and filed a motion to set aside the default
judgment, which was still pending when the judgment was
entered in this action. As part of the motion to set aside
the default judgment, Eubanks also claims that the circuit
court did not conduct a hearing on damages after the default
In August 2011, Eubanks filed a lawsuit against Wade and
Melissa Reese in the circuit court. In the complaint, Eubanks
alleged that Wade committed negligence, gross negligence,
extortion, fraud, breach of fiduciary duty, acting without
authority, failure to communicate, and substantial
misrepresentations in the sale of his property. Wade filed an
answer and raised several affirmative defenses. However, the
answer did not mention the default judgment against Eubanks.
In 2013, Wade filed a motion to dismiss Eubanks's
lawsuit. The motion argued that the circuit court should
dismiss the complaint based on a theory of res judicata,
because he received a default judgment against Eubanks in
2010. Eubanks filed a response and a hearing was set on
December 19, 2013. The hearing was continued and it was reset
for a telephonic conference on January 13, 2014.
On April 6, 2015, the circuit court entered an order granting
Wade's motion to dismiss with prejudice. It is ...