                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CA-01797-SCT

GREEN REALTY MANAGEMENT
CORPORATION

v.

MISSISSIPPI TRANSPORTATION COMMISSION


DATE OF JUDGMENT:                         09/06/2007
TRIAL JUDGE:                              HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  THOMAS HENRY FREELAND, IV
                                          JOYCE FREELAND
ATTORNEYS FOR APPELLEE:                   JAMES T. METZ
                                          JOSHUA D. FREEMAN
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              REVERSED AND REMANDED - 03/12/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    This is an eminent domain case in which the trial court granted summary judgment

for the defendant Mississippi Transportation Commission based on the plaintiff’s failure to

prove fraudulent or negligent misrepresentation. Finding error in that decision, we reverse

the judgment and remand for further proceedings.

                                         FACTS
¶2.    As part of a road-widening project near Grenada, the Mississippi Transportation

Commission (MTC) purchased two tracts of undeveloped land from Green Realty

Management Corporation. In 2004, after the MTC had begun the road-widening project,

Green Realty became aware that the Commission intended to replace an existing culvert with

a new, larger, box culvert. Prior to this discovery, Green Realty had no knowledge of these

plans, as MTC had not disclosed them during purchase negotiations. Fearing that the box

culvert would increase water flow from nearby Howard Creek onto Green Realty’s remaining

property, thereby endangering several buildings on its property, Green Realty undertook

extensive measures, including the construction of a drainage ditch sufficient to carry and

control an anticipated increase in diverted water. Green Realty subsequently filed suit and

sought an injunction, alleging that the significant diversion of surface water onto the

remaining Green Realty property constituted a taking without just compensation in violation

of Article 3, Section 17, of the Mississippi Constitution. On September 6, 2006, the MTC

moved for summary judgment, contending that releases contained in the warranty deeds

absolved the Commission of liability.

¶3.    On September 6, 2007, the Grenada County Circuit Court granted the Commission’s

motion. The trial court held that the specifications showing alterations to the water flow had

been on file in Jackson and Batesville and subject to inspection by any party, and,

consequently, that Green Realty had failed to demonstrate any misrepresentation. Green

Realty appeals from that decision.

                                          ISSUES

¶4.    Green Realty raises five separate issues on appeal:


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       (1) Did the circuit court err in granting summary judgment to the MTC since
       genuine issues of material fact exist concerning whether the MTC’s agents (a)
       provided a plat to John Green of Green Realty which misrepresented the nature
       and foreseeable damages of the road project in question and (b) omitted,
       suppressed or failed to disclose material facts that resulted in a fraud in the
       purchase transaction?

       (2) Did the standard forms for “fair market value” offers as completed and
       used by the MTC in this situation also contain misrepresentations concerning
       the nature and foreseeable damages of the road project in question?

       (3) Did the circuit court err in basing its grant of summary judgment on release
       provisions in the warranty deeds used by the MTC, since any negligent or
       intentional misrepresentations by the MTC in obtaining those releases would
       render them void?

       (4) Did the circuit court err in applying King v. Mississippi Transportation
       Commission, 609 So. 2d 1251 (Miss. 1991), since (a) King dealt with a variant
       of res judicata that is inapplicable here; and (b) it was undisputed in King that
       the construction was completed as shown on all the MTC plans available to the
       property owners?

       (5) Did the circuit court, which noted that “there were no facts in the record”
       concerning negligent or intentional misrepresentation by the MTC’s agents,
       despite an affidavit to the contrary supplied by the non-moving party, err in
       applying the standard for summary judgment under Rule 56 of the Mississippi
       Rules of Civil Procedure?


                                        ANALYSIS

¶5.    We review de novo a trial court’s grant of summary judgment. Callicutt v. Prof’l

Servs. of Potts Camp, Inc., 974 So. 2d 216, 219 (Miss. 2007).

¶6.    In granting summary judgment for the Commission, the trial court reasoned that Green

Realty had a duty to investigate the details of the proposed project and concluded that Green

Realty had not fulfilled that duty because the plans had been filed with the Mississippi

Department of Transportation and were thus available for inspection. However, whether the



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drawings were on file is immaterial if the agency withheld material facts in its acquisition of

the land. We have long held that where fraudulent misrepresentation is shown, the plaintiff

is under no duty to seek out public records. Gustella v. Wardell, 198 So. 2d 227, 230-31

(Miss. 1967) (“[F]raud may be predicated on false representations or concealments, although

the truth could have been ascertained by an examination of public records.”) (citing Parham

v. Randolph, 5 Miss. 435, 4 How. 435 (1840)); 37 Am. Jur. 2d Fraud and Deceit § 258

(2001) (“[T]he fact that a victim has constructive notice of the truth from public records is

not a defense to fraud.”); id. at § 259 cmt. b (stating that a plaintiff is justified in relying on

a fraudulent misrepresentation of fact “even though the fact that is fraudulently represented

is required to be recorded and is in fact recorded.”).

¶7.    This rule comports with our broader jurisprudence regarding a party’s duty to disclose.

“Our law requires that when a party makes statements or engages in conduct that reasonably

induces another party to rely upon those statements or that conduct to his detriment, the first

party has a duty to respond.” Shogyo Int’l Corp. v. First Nat’l Bank, 475 So. 2d 425, 428

(Miss. 1985). Additionally, we have held that “[t]he duty to disclose is based upon a theory

of fraud that recognizes that the failure of a party to a business transaction to speak may

amount to suppression of a material fact which should have been disclosed and is, in effect,

fraud.” Holman v. Howard Wilson Chrysler Jeep, Inc., 972 So. 2d 564, 568 (Miss. 2008)

(citing Welsh v. Mounger, 883 So. 2d 46, 49 (Miss. 2004)). See also Restatement (Second)

of Torts § 551(2)(b) (1977) (“One party to a business transaction is under a duty to exercise

reasonable care to disclose . . . matters known to him that he knows to be necessary to

prevent his partial or ambiguous statement of the facts from being misleading . . . .”).

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¶8.    The MTC also argues that it cannot be liable for damage to Green Realty’s adjacent

property because the deeds unambiguously released the MTC from incidental damages.

Generally, each party to a written contract is bound by the instrument he or she signs. Royer

Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 754 (Miss. 2003).

However, agreements reached by misrepresentations or illegal concealment of facts are not

enforceable. Id. (citations omitted). Moreover, it is a question of fact for the jury whether

a release is void due to “an absence of good faith and a full understanding of legal rights,

misrepresentation of the nature and effect of the document or lack of adequate

consideration.” Garner v. Hickman, 733 So. 2d 191, 196 (Miss. 1999) (citing Willis v.

Marlar, 458 So. 2d 722, 724 (Miss. 1984)).

¶9.    Based upon the affidavit and testimony of Green, corroborated by the separate Fair

Market Value Offers to Green Realty, such a question of fact for the jury exists in this case.

While negotiating the sale, the MTC made written offers to Green Realty estimating the fair

market value of the property to be conveyed. However, the offers did not mention the

probability of flooding of Green Realty’s remaining lands or that Green Realty would be

compensated for what could likely amount to a secondary taking by the government agency.

In addition, the MTC provided Green Realty a map showing the proposed alteration, yet this

map did not include the agency’s planned modifications to the culvert or the diversion of

water. Green contends that the map misleadingly indicated that the existing culvert would

remain in place.

¶10.   In his affidavit, Green averred that




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         [t]here was no indication in the offers . . . or the plat . . . or the deeds, that
         MTC intended to replace the existing 48 inch culvert so as to divert the flow
         of Howard Creek through a new 32 by 6 foot box culvert at station 26 plus 269
         and onto what remained of the Green Realty and West Grenada Industrial
         properties after the taking, nor was I, GRM, or WGIP given either actual or
         constructive notice by MDOT/MTC that the state agency had such intentions.

Green also averred in his affidavit that

         since the offers said nothing was to be paid for damages to the buildings not
         on the property conveyed and nothing was being paid for the land not
         described in the deeds, it was my understanding that neither the buildings nor
         the undescribed land were to be affected by the conveyances of tracts N and
         H, and that I would have no reason to anticipate any effect to be caused by the
         actions of the MTC on the lands not described in the deeds to the state entities.

¶11.     Thereafter, however, Green learned that “[t]he new design of the bridge . . . will act

to divert large volumes of water into the middle of Green Realty’s property remaining after

the conveyances . . . .” According to the calculations provided by MTC/MDOT, Green

testified that water flow would be increased “seven hundred and thirty-three percent.”

¶12.     If the state agency knew it would divert water flow, which would cause damage to

property neither paid for nor taken, and remained silent as to this fact, the agency suppressed

material facts. Given that scenario, a material misrepresentation by silence was visited upon

Green.

¶13.     The separate, written Fair Market Value Offers to Green Realty corroborate Green’s

testimony. The language used by the MTC provided “[i]t is necessary that the [MTC]

acquire from you certain property necessary for the construction of this project. The

identification of the real property . . . being acquired [is] indicated on the attached [warranty

deeds].” (emphasis added). The property now at issue was not identified. The offers

provide that the “Total Fair Market Value Offer” is a function of (1) land value, (2)


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improvements, and (3) damages. No consideration was offered for (2) and (3). The offer by

the MTC reflects that the only consideration was for land value.

¶14.   The record contains ample evidence to support Green Realty’s assertion that the

Commission failed to disclose that its project would cause flooding to Green Realty’s

adjacent property. Therefore, questions of material fact exist regarding the circumstances

surrounding the MTC’s procurement of the release, and its effect, if any, on Green Realty’s

claims. See Miss. R. Civ. P. 56(c) (requiring genuine issues of material fact to be determined

by a jury).

                                       CONCLUSION

¶15.   The existence of publicly-recorded documents does not absolve a party of its duty to

disclose when silence will result in negligent or fraudulent misrepresentation. Green Realty

presented evidence sufficient to create a genuine issue of material fact in this case, and the

trial court erred in holding to the contrary. Therefore, we reverse the circuit court’s grant of

summary judgment and remand this case for trial.

¶16.   REVERSED AND REMANDED.

     CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ.,
CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. PIERCE, J., CONCURS
IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. WALLER, C.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION.


       PIERCE, JUSTICE, CONCURRING IN RESULT ONLY:

¶17.   I concur in result with the majority’s decision to reverse the trial court’s grant of

summary judgment in favor of the Mississippi Transportation Commission and remand the

case for a trial on the merits. Green’s affidavit provides genuine issues of material fact to be

                                               7
determined by a jury.     I write separately because I do not agree with the majority’s

conclusory statements contained in its opinion on issues which are to be tried by the jury.

¶18.   Without reiterating the contents of Green’s affidavit, as quoted in the majority

opinion, I believe that the affidavit was not properly weighed by the trial court. The affidavit

on its face raises genuine issues of material fact to be determined by a jury on Green’s

misrepresentation claims. For this reason, I concur in result only.

       WALLER, CHIEF JUSTICE, DISSENTING:

¶19.   I believe that Green Realty failed to show any fraud or misrepresentation and is thus

bound by the deeds and releases that were signed.

¶20.   John Green’s claimed misrepresentation was that MTC failed to tell him the existing

culvert would be replaced with a box culvert. The uncontested facts are that the map

presented to Green during negotiations showed the dimensions of land taken and where the

road and culvert were located. The index to the map shows the proposed culvert to be a box

culvert. The existence of a planned box culvert is not a disputed fact. Detailed construction

plans were available not only in Jackson, but also in Batesville, a short drive north of

Grenada, where the District Office is located.

¶21.   Green is a sophisticated businessman who, in his own words, has “been engaged in

the heavy construction business as an owner and manager of a heavy construction company

most of [his] adult life, during which [he] bid on and supervised the construction of various

projects involving highways, box culverts, levees, dams, land improvements, and large

drainage projects . . . .” Green is also an attorney.




                                               8
¶22.   The trial judge found as undisputed fact that the plans and specifications for the

project, which included the new box culvert, were open for inspection by Green Realty prior

to the purchase negotiations, that the specifications were not altered after the conveyance,

that the construction was performed according to specifications, and that there was no proof

of damages.1 According to the trial judge,“the fact remains that Green with the exercise of

due diligence had information available to it that would have made this problem, if it is a

problem, forseeable [sic].”

¶23.   A person must abide by the consequences of his contracts and actions in the absence

of some misrepresentation or illegal concealment of facts. Royer Homes of Miss., Inc. v.

Chandeleur Homes, Inc., 857 So. 2d 748, 754 (Miss. 2003) (citations omitted). See also

Warner v. Warner, 175 Miss. 476, 479 (1936) (evidence insufficient to support finding of

any misrepresentation, concealment, or fraud which would invalidate previous settlement

between the parties). The release language in the deeds executed by Green Realty is clear

and should be enforced. See Miss. Transp. Comm’n v. Ronald Adams Constr., Inc., 753

So. 2d 1077, 1087 (Miss. 2000) (citing Griffin v. Tall Timbers Dev., Inc., 681 So. 2d 546,

551 (Miss. 1996)).

¶24.   Green’s belief that flooding will occur where there is no proof of flooding or damages

is not sufficient to create a genuine issue of fact for trial. See Coleman Powermate, Inc. v.

Rheem Mfg. Co., 880 So. 2d 329, 332 (Miss. 2004) (citing Richmond v. Benchmark Constr.


       1
         The affidavit of Warren Bailey, hydraulic engineer with the Bridge Division of
the Mississippi Department of Transportation, confirms that there were no plan changes
after February 1, 2003, to the size of the new culvert, to the length of the new bridge, or
to the project plans.

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Corp., 692 So. 2d 60, 61 (Miss. 1997)) (party opposing motion for summary judgment must

set forth specific facts showing that there are indeed genuine issues for trial).

¶25.   Therefore, I would affirm the trial court’s grant of summary judgment.




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