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Inc. v. Turtle Creek Crossing, LLC

Supreme Court of Mississippi

February 15, 2018

KD HATTIESBURG 1128, INC., KD HATTIESBURG II 1128A, INC., KIMCO HATTIESBURG L.P., KIMCO HATTIESBURG II, L.P. AND KIMCO DEVELOPERS, INC.
v.
TURTLE CREEK CROSSING, LLC

          DATE OF JUDGMENT: 07/14/2016

         LAMAR COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO

          TRIAL COURT ATTORNEYS: MARK A. NELSON S. ROBERT HAMMOND, JR. LISA ANDERSON REPPETO ANDREW SCOTT HARRIS NICHOLAS KANE THOMPSON

          ATTORNEYS FOR APPELLANTS: LISA ANDERSON REPPETO ANDREW SCOTT HARRIS

          ATTORNEYS FOR APPELLEE: MARK A. NELSON S. ROBERT HAMMOND, JR. NICHOLAS KANE THOMPSON

          BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.

          MAXWELL, JUSTICE

         ¶1. Turtle Creek Crossing, LLC, a minority interest holder in Kimco Hattiesburg, L.P., filed an action in circuit court after it learned it would receive no distribution from the sale of the partnership's only asset-a multimillion-dollar shopping center. In its complaint, Turtle Creek alleges its fellow partners breached their fiduciary duties and conspired with each other, the partnership, and a sister partnership to market and sell the asset in such a way as to keep Turtle Creek from profiting. It also asserts the partnerships commingled and misallocated funds. Turtle Creek seeks an accounting and damages.

         ¶2. The defendants responded with a motion to transfer the entire action or, alternatively, sever and transfer the equitable claims to chancery court. After their motion was denied, they filed for-and were granted-this interlocutory appeal. According to the defendants, the predominant claim is for an accounting-an equitable claim that belongs in chancery court. And had this case been filed in chancery court, there would be a strong argument for the chancery court's original jurisdiction over the accounting claim, as well as pendant jurisdiction over the legal claims. But Turtle Creek did not file this action in chancery court. It filed it in circuit court. And the circuit court too has original jurisdiction not only over the accounting claim but also Turtle Creek's other legal claims.

         ¶3. Because Turtle Creek chose a forum with proper subject-matter jurisdiction, that choice must be respected. We affirm the circuit court's denial of the motion to transfer and remand for further proceedings consistent with this opinion.

         Background Facts and Procedural History

         I. Two Partnerships

         ¶4. Kimco Hattiesburg, L.P., was formed in October 2004. The aim of the limited partnership was to develop "Phase I" of the Turtle Creek Crossing shopping center on Highway 98 West in Hattiesburg, Mississippi, with Target as the anchor tenant.

         ¶5. Under the original limited-partnership agreement, KD Hattiesburg 1128, Inc., was the general partner, with a one-percent interest. Kimco Developers, Inc., [1] was the Class A limited partner, with a forty-nine-percent interest. And Turtle Creek Crossing, LLC, was the Class B limited partner, with a fifty-percent interest. But in October 2012, the limited-partnership agreement was amended. By agreement, Turtle Creek Crossing transferred half of its interest in the partnership to one of its members, Eric Seitz, who in turn transferred his interest to Kimco Developers. The following partnership structure resulted:

Kimco Hattiesburg, L.P.

Partner

Class

Percentage Interest

KD Hattiesburg 1128, Inc

General Partner

1%

Kimco Developers, Inc.

Class A Limited Partner

49%

Kimco Developers, Inc.

Class B Limited Partner

25%

Turtle Creek Crossing, LLC

Class B Limited Partner

25%

         ¶6. In May 2007, a second limited partnership, Kimco Hattiesburg II, L.P., was formed to develop "Phase II" of the Turtle Creek Crossing shopping center, with Kohl's as the anchor tenant. KD Hattiesburg II 1128A, Inc., was the general partner; Kimco Developers, the Class A limited partner; and Turtle Creek Commons, LLC, [2] was the Class B partner. As did Turtle Creek Crossing, Turtle Creek Commons transferred half of its interest in Kimco Hattiesburg II to member Seitz, who further transferred it to Kimco Developers in 2012, resulting in the following structure:

Kimco Hattiesburg II, L.P.

Partner

Class

Percentage Interest

KD Hattiesburg II 1128A, Inc.

General Partner

1%

Kimco Developers, Inc.

Class A Limited Partner

49%

Kimco Developers, Inc.

Class B Limited Partner

25%

Turtle Creek Commons, LLC

Class B Limited Partner

25%


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