OF JUDGMENT: 04/18/2016
SUNFLOWER COUNTY CIRCUIT COURT HON. MARGARET CAREY-MCCRAY,
ATTORNEY FOR APPELLANT: J. EDWARD RAINER
ATTORNEYS FOR APPELLEES: JOHN W. ROBINSON III JOHN P. SNEED
Roger Dale Latham owned land in the Mississippi Delta. He
used his land primarily to hunt ducks.
In 2004, Latham hired Terry W. Johnson to perform excavation
work on his land. Latham and Johnson continued their business
relationship with other projects, and they became friends.
John W. Robinson III and Craig Trahan were also Latham's
friends. Robinson and Trahan paid Latham for the right to
hunt ducks on his land.
In the summer of 2007, Johnson told Latham about his interest
in certain land in Sunflower County, Mississippi. This tract
of land consisted of 170 acres of abandoned catfish ponds,
and it was offered for sale at a price of $750 per acre.
Johnson and Latham looked at the property and agreed that it
would be a good investment for duck hunting. They determined
that the property was offered for sale at an amount below the
land's market value. They asked Robinson, Trahan, and
Mike Dickson (another of Latham's friends) if they were
interested in purchasing the property. Dickson declined.
Latham, Johnson, Robinson, and Trahan met in August of 2007
to look at the property. They met again at the property on
September 15, 2007, and they discussed the purchase of the
property in more detail. Their discussions included the
financing, improvements, and access rights to the property.
According to Johnson, Robinson, and Trahan, they agreed to
form a partnership to purchase the property during their
September 2007 meeting. In fact, Johnson, Robinson, and
Trahan claim that they, along with Latham, agreed to purchase
the property as a partnership, and each man would contribute
an equal amount of money for the purchase. In addition, they
testified that they agreed that Latham would investigate
financing options for the purchase, Johnson would determine
what improvements needed to be made to the property, Trahan
would bush hog the property, and Robinson would research and
investigate the adjacent landowner's claim of access
rights over the property.
On October 8, 2007, Latham submitted a loan application to
the Federal Land Bank Association of North Mississippi (the
"Land Bank") for the proceeds necessary to purchase
the property. On the loan application, in the section about
ownership, Latham checked "partnership." Johnson,
Robinson, and Trahan contend they were not aware of
Latham's loan application with the Land Bank.
In October of 2007, Latham called Robinson to discuss the
financing. Robinson testified that Latham said he had talked
to Johnson and Trahan, and because of their personal issues,
group should finance the purchase of the property in
Latham's name, individually. Latham also said that the
group could convey title to the property to the partnership
when they were ready.
Johnson, Robinson, and Trahan also testified that the
decision to finance the purchase of the property in
Latham's name only was a group decision. They agreed to
share equally in the expenses and understood that, upon
Latham's receipt of title to the property, it would be
partnership property, not Latham's property individually.
On October 18, 2007, Latham submitted a second loan
application to the Land Bank. This application was solely in
his name. As a result, Latham obtained a loan commitment for
$144, 500, which included the purchase price of $127, 500 and
an additional amount for settlement charges, adjustments, and
Latham executed a promissory note to the Land Bank, on
November 8, 2007, and closed on the purchase of the property.
A warranty deed was executed, and the property was conveyed
to Latham, individually. The warranty deed was recorded among
the land records of Sunflower County. At the closing, Latham
was disbursed $13, 454.58 for property improvements. Latham
deposited this money into a bank account at Wachovia Bank.
The account was opened in the names of Latham and his wife
d/b/a "Lonesome Pine." Shortly after closing,
Latham gave the original closing documents to Robinson for
The promissory note was to be paid in fifteen annual
installments beginning October 1, 2008. On October 1, 2008,
Trahan wrote a check to Latham for $3, 626.40, and he
included a note on the memo line of the check that it was for
"land." On October 19, 2008, Johnson wrote a check
to Latham for $3, 625.40, and he included a note on the memo
line of the check that it was for "land payment."
On October 22, 2008, Robinson wrote Latham a check for $3,
625.40, and he included a note on the memo line that it was
for "Lonesome Pine." The checks totaled $10,
877.20, and they were deposited in Latham's
"Lonesome Pine" bank account at Wachovia on October
31, 2008, along with Latham's check in the amount of $3,
623.60. Shortly thereafter, Latham wrote a check from the
"Lonesome Pine" account and paid the Land Bank the
full amount of the 2008 payment due.
The following year, in 2009, Johnson, Robinson, and Trahan
again gave Latham checks for their share of the Land Bank
note. On October 21, 2009, Johnson wrote a check to Latham
for $3, 668 for "Land Payment Lonesome Pine." On
October 27, 2009, Robinson wrote a check to Latham for $3,
700 for "Lonesome Pine." On November 1, 2009,
Trahan wrote a check to Latham for $3, 787. The checks
totaled $11, 155, and Latham deposited these checks and his
check for $3, 115.81, in the "Lonesome Pine"
account at Wachovia. Latham then wrote a check from the
"Lonesome Pine" account to the Land Bank for the
amount necessary for the 2009 loan payment.
In early 2010, Mike Retzer bought the property adjacent to
Lonesome Pine. Gil Ray, Retzer's manager, hired Johnson
to do some work on Retzer's property. As part of their
discussion, Ray informed Johnson that he thought Retzer would
also be interested in buying Lonesome Pine. Johnson then told
Latham, Robinson, and Trahan about Retzer's possible
interest in the property.
Retzer called Latham and offered to buy Lonesome Pine. Retzer
agreed to purchase Lonesome Pine for a price of $2, 150 per
acre or $365, 500. The sale closed on March 16, 2010. Before
the closing, Latham received $15, 000 as an earnest money
deposit. As a result of the closing, the Land Bank note was
paid in full, along with all other expenses of the sale -
including commissions, taxes, and attorney fees. Latham
received a check for the net proceeds in the amount of $223,
On March 31, 2010, Latham deposited this check into his
company's commercial checking account at Trustmark
National Bank. The check was not deposited in the Lonesome
On May 20, 2010, Robinson wrote a letter to Latham. In this
letter, Robinson asked for all information and documents
related to the sale of the property; the amount and
whereabouts of all partnership funds in his possession,
custody or control; and all other information and documents
necessary for the partnership to settle its accounts and to
make final distributions to the partners. Robinson indicated
that the letter was also on behalf of Johnson and Trahan.
Latham testified that he did not receive this letter.
However, Latham admitted that he went to Robinson's house
on May 23, 2010. Latham testified that he spent two hours
with Robinson discussing this matter. Latham also testified
that Robinson made clear, during this meeting, that there was
a partnership among Latham, Johnson, Robinson, and Trahan.
¶19. After several months, on September 25, 2010,
Robinson had another conversation with Latham. He again
explained to Latham that the proceeds from the sale, $223,
963.31, and any remaining funds borrowed from the Land Bank
for property improvements, should be divided equally among
the partners. The following week, Johnson had another
conversation with Latham. In this conversation, it was clear
to Robinson that Latham did not agree with his position.
On March 14, 2011, Johnson, Robinson, and Trahan filed a
complaint against Latham in the Circuit Court of Sunflower
County. The complaint asserted claims for breach of
partnership agreement; breach of fiduciary duties;
misappropriation and conversion of partnership assets;
malicious, intentional, and wanton conduct; and fraud,
deceit, and misrepresentation. The complaint asserted claims
for both compensatory and punitive damages, and it asked for
equitable relief in the form of an accounting, judicial
dissolution of the partnership, and settlement of accounts.
Latham served his answer and defenses. As part of his answer,
Latham claimed that venue was improper in Sunflower County.
Latham filed a motion to dismiss the case for lack of venue
or, in the alternative, to transfer the case to the Circuit
Court of Rankin County, where Latham resided. The circuit
court found a substantial alleged act or omission and a
substantial event that caused injury had occurred in
Sunflower County and denied the motion.
Latham also asserted an affirmative defense on the grounds
that the claims were barred by the statute of limitation and
statute of frauds. Latham filed a motion to dismiss on these
grounds, and it too was denied.
In his answer, Latham denied that a partnership existed. He
testified that the money paid by Johnson, Robinson, and
Trahan in 2008 and 2009 was "only for rights to
hunt" on the property.
At trial, Latham agreed that the parties formed a partnership
to purchase the property in September 2007. He further agreed
"that the idea was that all of the partners would
contribute equally, both money and time and effort."
However, Latham claimed that sometime between October 8 and
October 18, 2007, he advised Johnson, Robinson, and Trahan
that "they [would] need to sign a promissory note if
they wanted it to be a partnership." Because Johnson,
Robinson, and Trahan did not submit individual loan
applications to the Land Bank by October 18, 2007, Latham
claimed that the partnership no longer existed. However,
Johnson, Robinson, and Trahan disagreed, and each testified
that Latham never asked them to submit a loan application or
to sign a promissory note. They also testified that the 2008
and 2009 checks they sent to Latham were for their one-fourth
shares of the Land Bank note.
This case was tried before a jury in Sunflower County. The
jury returned a verdict for Johnson, Robinson, and Trahan in
the amount of $176, 352.24. The circuit court denied their
request to for a hearing on punitive damages. The court also
denied their motion for attorney fees and prejudgment
interest but granted their motion for post-judgment interest.
The court entered a judgment that was consistent with the
jury's verdict. Latham then filed a motion for a judgment
notwithstanding the verdict (JNOV) or, in the alternative,
for a new trial. The court denied this post-trial motion.
Latham now appeals from this judgment, and he asserts ten
assignments of error. He argues that the circuit court erred
in: (1) denying his motion to dismiss or, alternatively, to
transfer venue; (2) denying his motion to dismiss based on
the applicable statutes of limitation; (3) denying his motion
to dismiss based on the statute of frauds; (4) denying his
motion to dismiss for Johnson, Robinson, and Trahan's
failure to perform an accounting; (5) denying his ore tenus
motion regarding an alleged discovery violation; (6) allowing
the use of a deposition for impeachment; (7) allowing the
admission of parole evidence to explain a series of emails
between Robinson and a third party, (8) denying his motion
for a mistrial; (9) denying his motion for a JNOV; and (10)
denying his motion for a new trial.
Johnson, Robinson and Trahan cross-appeal and argue the
circuit court erroneously denied their request for
Latham contends that the circuit court committed reversible
error when it determined that venue was proper in Sunflower
County, Mississippi. Latham argues that the court should have
dismissed the case or transferred venue to Rankin County,
where he resided. Latham claims venue was improper in
Sunflower County because "no party to the suit
retain[ed] any interest [in] said real property" and
"the real property is no longer vested in any of the
parties to this action."
"The standard of review for a change in venue is abuse
of discretion." Hedgepeth v. Johnson,
975 So.2d 235, 237 (¶7) (Miss. 2008). A circuit
court's decision on venue will not be disturbed
"unless it clearly appears that there has been an abuse
of discretion or that the discretion has not been justly and
properly exercised under the circumstances of the case."
Venue is determined by Mississippi Code Annotated section
11-11-3(1)(a)(i) (Rev. 2004), which provides:
Civil actions of which the circuit court has original
jurisdiction shall be commenced in the county where  the
defendant resides, or,  if a corporation, in the county of
its principal place of business, or  in the county where a
substantial alleged act or omission occurred or  where a
substantial event that caused the injury occurred.
Latham cites section 11-11-3 for the proposition that since
he is a resident of Rankin County, Mississippi, he was
entitled to venue in Rankin County. If the plaintiffs had
filed the complaint in Rankin County, under Mississippi Code
Annotated section 11-11-3, venue would have been proper in
Rankin County. But, the plaintiffs did not file their
complaint in Rankin County.
Because the complaint was filed in Sunflower County, we must
determine whether venue was proper there. The plaintiffs
argue that venue is proper in Sunflower County because that
is "in the county where a substantial alleged act or
omission occurred or where a substantial event that caused
the injury occurred." Id.
We agree. As discussed above, Sunflower County is where the
land was located, where the decision was made to purchase the
property, where the partnership was formed, and where the
sale occurred that resulted in the profit. Indeed, virtually
all of the conduct occurred that gave rise to the
plaintiffs' claims and where the events that caused the
injury occurred. The fact that the property was subsequently
sold to a third party and "is no longer vested in any of
the parties to this action" is of no consequence.
We find that venue was proper in Sunflower County, pursuant
to section 11-11-3(1)(a)(i), and the circuit court did not
abuse its discretion in denying Latham's motion.
B.Statutes of ...