Hosemann gets Scatters

[BigLou2]

In a recent Supreme Court Decision

CREELY v. HOSEMANN, NO. 2003-CA-02353-SCT

TOPIC(S): Contract - Consideration - Exercise of option - Counteroffers - Statute of frauds

TRIAL JUDGE: Hon. Jon M. Barnwell

TRIAL COURT: Leflore County Chancery Court

ATTORNEY(S) FOR APPELLANT: Roger M. Tubbs

ATTORNEY(S) FOR APPELLEE: David W. Mockbee, Jason Edwin Weeks

AUTHOR: Justice Dickinson

FACTS: Johnny Rayburn entered into a Contract and Agreement to purchase 1,142 acres of land from Dan O’Neal and E.C. Stewart, Jr. Rayburn later assigned his interest to Andrew Creely, Sr. Six days after the assignment to Creely, Danmar, Inc. and Stuart Company entered into a contract to sell Buck Ridge Hunting Club of Mississippi, Inc., the same property. The sole shareholder of Buck Ridge Hunting Club of Mississippi, Inc., was Delbert Hosemann. When Creely learned of the Buck Ridge contract, he and Rayburn filed a Complaint for Temporary Restraining Order, Permanent Injunction and Specific Performance of Contract against Dan O’Neal; E.C. Stuart, Jr.; Danmar, Inc.; and Stuart Land and Timber, LLC, to prevent the sale. Creely and Hosemann reached a compromise. In exchange for releasing his claim under the Buck Ridge contract, Hosemann received an option from Creely to purchase a one-half undivided interest in the portion of the 1,142 acres known as “The Scatters.” The suit was dismissed, and Danmar, Inc., and Stuart Land and Timber, L.L.C., executed a release of real estate purchase and sale agreement in favor of Buck Ridge Hunting Club and Hosemann. Sometime later, Creely wrote Hosemann a letter indicating that he did not want to sell the property. Hosemann filed suit against Creely seeking specific performance of the option contract. Creely filed a counterclaim alleging misrepresentation and fraud. The court entered a final judgment in favor of Hosemann on both the complaint and the counterclaim and ordered specific performance of the option contract. Creely appeals.

ANALYSIS:

Issue 1: Consideration

Creely argues that Hosemann provided no consideration for the option agreement, because Hosemann gave up nothing by settling the litigation. It is not the potential recovery in the lawsuit that provides consideration in a settlement, but rather the right to pursue the recovery. In this case, Hosemann relinquished his right to pursue his claim that his contract for the purchase of the 1,142 acres was valid. This abandonment of the right to pursue a claim provides the necessary consideration. Additionally, the option contract’s recital of consideration creates a rebuttable presumption that consideration was provided. Creely also argues he is entitled to set aside Hosemann’s claim of consideration because it was based upon a misrepresentation. However, the record shows that it was Creely who did not inform Hosemann of defects. Creely argues that Hosemann should not be allowed to personally seek enforcement of the option contract because the buyer in the real estate contract was Buck Ridge Hunting Club, not Hosemann, and that if he had known that Hosemann did not personally have the contract, he would not have entered into the option agreement. There is no question that Hosemann had the authority to sign the option agreement and bind Buck Ridge Hunting Club to the consideration that was given for the option.

Issue 2: Exercise of option

Creely argues that Hosemann failed to exercise the option. Written notice to the seller of intent of the option holder to exercise an option has the effect of an acceptance, converting the option into an enforceable bilateral contract. It is not necessary for an option holder to tender the purchase price in order to exercise the option. Here, the option contract provided a specific time in which Hosemann was required to exercise the option. However, the contract failed to express a closing date. Therefore, the date of closing was to be within a reasonable time from the date of exercising the option. Because Creely and Hosemann engaged in numerous activities from the exercise of the option by Hosemann until he tendered payment, this issue has no merit.

Issue 3: Counteroffers

Creely argues that Hosemann’s seven counter-offers extinguished the option. Both parties made numerous attempts to prepare an acceptable deed and to negotiate missing or unclear terms, but these efforts do not rise to the level of counter-offers. When the option to purchase the land was exercised by Hosemann, the option became a valid and binding contract and the option agreement no longer existed.

Issue 4: Statute of frauds

Creely argues that changes to the option contract were not in writing and violated the Statute of Frauds. Because there were no material changes to the option contract, this assignment of error is without merit on its face.

HOLDING: Affirmed.

Hosemann gets the scatters! Must be some valuable land to spend all that money on an appeal! Anyway, I thought you guys would find this interesting reading......

Lou

[dawg-n-duck]

The Scatters is some very vauluable land. Everybody wants it, but the one drawback is trying to keep poachers off. It is a proven spot for ducks. Interesting read. Do you have the cite or the date when the decision was handed down??

[fivemile]

Where is the Scatters located; which county.

[dukbum]

big water always told me it was ove near columbus,ms....he says it the best place to shoot a limit of coots and mergansers....dat bouy does love him sum coot

[torch]

Scatters is located outside Jaxson. It is a series of pond empoundments that purifies sewage for the city. Ie. SCATTERS the pooh. Thats were the name comes from.

[BLUE ROOM BOY]

Sounds like a cat fight Maybe both of these @$$ holes will go broke over this and disappear!

[GulfCoast]

The case is Andrew Creely, Sr. v. C. Delbert Hosemann, Jr. Mississippi Supreme Court No. 2003-CA-02353-SCT. Affirmed 02/10/05.

First paragraph: "This is an option contract case in which we must determine whether the optionee, . . . Hosemann . . . . properly exercised his option to purchase from the optionor, Anderew Earl Creely, Sr., an undivided half interest in approximately 150 acres what apparently must be prime duck hunting land."

[Johnboy114]

Gulfcoast..
So in other words this means what?

[Money]

Hell, I had dem scatters last night. To much chiken and 40.

[BigLou2]

Creely and Hosemann reached a compromise. In exchange for releasing his claim under the Buck Ridge contract, Hosemann received an option from Creely to purchase a one-half undivided interest in the portion of the 1,142 acres known as “The Scatters.”

Court held that Hosemann did give sufficent consideration to form the option contract. Therefore, He now has the option to purchase this land. Considering all the expense to get this decision, I would bet that Hosemann is going to purchase this land.

Find him and be very nice to him.

GC took notice of an interesting comment made by the Court. We as sportsman must take note that we now have Supreme Court Jsutices that are very knowledgeable when it comes to the vlaue of hunting lands. The chief Justice is a very avid outdoorsman and makes trips to Texas to hunt whitetail on a yearly basis.

[Glen Livet]

I thought the scatters was off the MS river in Bolivar county. Didn't they shoot some ducks in it on Whistling Wings 5?

I think that most of the 1100 acres is deer hunting. I'm not sure that Delbert is as die hard a duck hunter as some of the other folks around there.

[timberjack]

I hunted with Hosemann once this season. I wasn't impressed. Don't get me wrong, he was polite and nice enough but a serious duck hunter he was not. Didn't he run for congress or something a few years back and where is this place referenced to in the court case?? I know where the scatters are but is this a piece of privately owned land within the boundaries of the public area??

[Glen Livet]

TimberJack....

Did you hunt with him in the Scatters? I don't think any of his property lines even border any public hunting. Like I said, I believe it is mostly deer hunting.

[Money]

TimberJack....

Did you hunt with him in the Scatters? I don't think any of his property lines even border any public hunting. Like I said, I believe it is mostly deer hunting.

Yep, mostly deer huntin'.

[Don Miller]

I will get to hunt it for free next season. Blue Room Boy and Delbert are best friends.