Miss. SC rules in two cases over newspaper's publishing

By Jessica M. Karmasek | Mar 15, 2012


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court, in a consolidated opinion filed last week, upheld a chancery court's order denying a publishing company's request to compel arbitration.

The Court, in its March 8 ruling, addressed appeals in two cases involving Bay Jourdan Publishing Co.

In the first case, Diamondhead Country Club and Property Owners Association Inc. sued Thomas R. Alfonso III and Anne Scafidi Cordova d/b/a Bay Jourdan Publishing for breach of contract to publish The Diamondhead News.

In its complaint filed in June 1997, Diamondhead requested preliminary and permanent injunctive relief against BJP.

It complained that BJP had breached the contract because it had withdrawn funds from the parties' joint bank account and had deposited them into BJP's private account, had failed to produce a detailed accounting upon request, had superceded Diamondhead's editorial control by publishing content unapproved by Diamondhead, and had used an unauthorized mailing list.

At a hearing in July 1997, BJP requested to arbitrate the dispute pursuant to the contract's arbitration clause.

The Hancock County Chancery Court later entered a preliminary injunction order preventing BJP from publishing The Diamondhead News, selling advertising, collecting or disposing of advertising revenues derived from the publication of The Diamondhead News, and interfering with the printing, publication or distribution of The Diamondhead News.

The chancery court also found that an arbitration clause in the publishing contract was inapplicable to the lawsuit.

The lower court denied BJP's two subsequent motions to compel arbitration of the breach-of-contract dispute.

The publishing company appealed the court's latest denial of arbitration to the state's high court.

Justice David A. Chandler, who authored the Court's opinion, said the lower court was correct in denying BJP's second motion to compel arbitration.

"Rule 4(a) of the Mississippi Rules of Appellate Procedure requires that a notice of appeal be filed within 30 days of the date the judgment was entered," he wrote.

"The issue already had been ruled upon on March 18, 2005, and no appeal was taken."

However, in the second half of its ruling, the Court found that the chancery court erred by granting summary judgment in favor of Gulf Publishing Co. Inc.

Gulf Publishing publishes The Sun Herald newspaper, which circulates in South Mississippi. In August 1997, it began publishing The Diamondhead News.

In June 2000, BJP sued Diamondhead and Gulf Publishing, alleging that Gulf Publishing had intentionally interfered with BJP's contract to publish The Diamondhead News.

Specifically, BJP alleged that, before the chancery court entered the preliminary injunction, Diamondhead and Gulf Publishing had been negotiating for Gulf Publishing to publish The Diamondhead News, contingent upon Diamondhead's termination of the contract with BJP.

Gulf Publishing filed a motion for summary judgment, which the court granted.

However, genuine issues of material fact remain, the Supreme Court explained, on BJP's claim of intentional interference.

"While Gulf Publishing argues that Diamondhead terminated the contract with the termination letter dated June 5, 1997, that letter -- along with the evidence that BJP acted outside the scope of the contract -- shows only that the status of the contract prior to the preliminary injunction was in dispute," Chandler wrote for the Court.

"Under the contract terms, no termination could occur until 60 days after written notice, provided BJP neither cured the breach, nor took sufficient steps to cure the breach.

"Therefore, the question of whether or not there was a contract between BJP and Diamondhead on June 6, 1997, presents a genuine issue of material fact."

The Court reversed the chancery court's order and remanded the case.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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