Abraham Roffman v. Dale Wilson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-01519-COA
ABRAHAM ROFFMAN
APPELLANT
v.
DALE WILSON
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
7/1/2004
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
WARNER HODGES
PAUL R. SCOTT
REBECCA SCOTT THOMPSON
CIVIL - CONTRACT
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT GRANTED
AFFIRMED - 10/25/2005
BEFORE LEE, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
Abraham Roffman filed this lawsuit against Dale Wilson for specific performance and/or damages
in fraud in the Circuit Court of Desoto County on August 5, 2002. On May 7, 2004, Wilson filed a motion
for summary judgment. On July 1, 2004, the circuit court granted Wilson’s motion for summary judgment.
Roffman appeals to this Court arguing that the circuit court erred in granting Wilson’s motion for summary
judgment
¶2.
Aggrieved by the judgment of the circuit court, Roffman now appeals, raising the following issue:
WHETHER THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT.
¶3.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶4.
On June 20, 2002, Roffman attended a real estate auction in Horn Lake, Mississippi. This auction
was also attended by Wilson. When Wilson arrived at the auction, he registered and received a bid card.
Wilson noticed that only one other person was registered to bid, a man whom he did not know from
Nashville, Tennessee. After Wilson registered he saw Roffman, so he went over to speak to him. Wilson
was acquainted with Roffman because Wilson had rented a fireworks stand from Roffman in the past.
Wilson asked Roffman if he intended to bid on the property, and Roffman replied that he did not. The
bidding started, and the man from Nashville bid $25,000. Then Wilson saw Roffman bid $50,000.
Knowing that Roffman was not registered to bid, Wilson asked him, “Did you bid for me?” Roffman claims
that Wilson asked him, “Did you bid for us?” Either way, Roffman responded in the affirmative. The
$50,000 bid was the winning bid, and Wilson went to the auctioneer table, signed for the bid and paid ten
percent of the bid price. At no time did Roffman ask to sign or to pay any part of the money. Roffman did
not approach the auctioneer table with Wilson.
¶5.
Roughly one week later Roffman contacted Wilson regarding how much money he needed to pay
for his part of the property. Wilson informed Roffman that he had already paid for the property in full and
was confused as to what Roffman was talking about. Roffman then filed a complaint against Wilson for
specific performance and/or for damages in fraud. After Wilson filed his answer stating in part that the
court did not have jurisdiction and that the action was barred by the statute of frauds, Roffman amended
his complaint dropping the specific performance claim. Wilson filed an answer to the amended complaint
basically alleging the same defenses. Wilson then filed a motion for summary judgment which the trial court
granted.
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LEGAL ANALYSIS
WHETHER THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT.
¶6.
Roffman asserts that he and Wilson entered into a joint venture, and therefore the statute of frauds
is not a defense. Roffman also argues that Wilson committed fraud. Wilson takes the position that there
was no intent to form a joint venture between Roffman and Wilson.
STANDARD OF REVIEW
¶7.
This Court follows a de novo standard of review of a trial court granting summary judgment.
Mozingo v. Scharf, 828 So.2d 1246, 1249 (¶5) (Miss. 2002); Owens v. Thomae, 904 So.2d 207, 208
(¶7) (Miss. Ct. App. 2005). Summary judgment is proper when there are no issues of material fact and
the movant is entitled to a judgment as a matter of law. Id.
DISCUSSION
¶8.
In order for the statute of frauds defense to be void, evidence of a joint venture must exist. Beane
v. Bowden, 399 So.2d 1358, 1361 (Miss. 1981). A joint venture can be broadly defined as an
association of persons to carry out a single business enterprise for profit for which purpose they combine
their property, money, efforts, skill and knowledge. Pitman v. Weber Energy Corp., 790 So.2d 823,
826 (¶10) (Miss. 2001). In the present case, there is no evidence to suggest that Roffman and Wilson
combined any of the above stated items. A joint venture exists where two or more persons combine in a
joint business enterprise for their mutual benefit with an understanding that they are to share in profits or
losses and each is to have a voice in its management. Id. The Mississippi Supreme Court has noted that
there is a condition precedent with joint ventures, and that condition is joint proprietary interests and the
right of mutual control. Hults v. Tillman, 480 So.2d 1134, 1142 (Miss. 1985) Joint ventures need not
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be in writing; however, an agreement either expressed or implied regarding the sharing of profits is essential.
Id. Actual intent to form the joint venture is essential. Id. at 1143. There must be an intent of the parties
to be associated together.
¶9.
Since there was no evidence of a joint venture, this case falls within the statute of frauds.
Agreements to transfer an interest in land are clearly within the statute of frauds. McIlwain v. Doby, 238
Miss. 839, 884, 120 So. 2d 553, 560 (Miss. 1960). Mississippi Code Annotated §15-3-1(c) (Rev. 2003)
states that the statute of frauds does require that all contracts involving the transfer of land must be in
writing. Allred v. Fairchild, 785 So. 2d 1064, 1069 (¶12) (Miss. 2001). Roffman even states that this
transaction was never a contract for the sale of land, and he presented no evidence to show any sort of
written agreement in the present case. The fact that there was no written contract or writing of any sort
regarding this land is undisputed. Therefore we find that no contract was formed between these two
parties.
¶10.
There is no intent between these two parties; therefore, there is no fraud. Wilson claims that he
never intended to form a joint venture, and Roffman’s conduct negated any intent he may have possessed
to form a joint venture. Roffman did not offer to help pay the original ten percent of the bid at the auction.
Roffman did not attempt to discuss the terms of their alleged arrangement. Roffman made no attempt to
discuss the alleged agreement until eight days after the auction. In order to establish fraud all of the
following nine elements must be proven: (1) a representation; (2) its falsity; (3) its materiality; (4) the
speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that the representation
should be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance
of its falsity; (7) the hearer’s reliance on the representation’s truth; (8) the hearer’s right to rely thereon; and
(9) the hearer’s consequent and proximate injury. Holland v. Mayfield, 826 So. 2d 664, 674 (¶45)
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(Miss. 1999). Even if Roffman believed he was entering into a business deal with Wilson, there was no
representation made by Wilson. Therefore, the first element is not met, so there can be no finding of fraud.
Finding that no business relationship existed and no fraud was present, we find that the trial judge was
correct in granting Wilson’s motion for summary judgment.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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