Rex Distributing Company, Inc. v. Anheuser-Busch, LLC , 271 So. 3d 445 ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-IA-00037-SCT
REX DISTRIBUTING COMPANY, INC.
v.
ANHEUSER-BUSCH, LLC, MITCHELL
BEVERAGE, LLC, MITCHELL REX
DISTRIBUTING, LLC, MITCHELL
DISTRIBUTING COMPANY, INC. AND D.G.
YUENGLING AND SON, INCORPORATED d/b/a
D.G. YUENGLING & SON, INC.
DATE OF JUDGMENT: 12/15/2017
TRIAL JUDGE: HON. ROGER T. CLARK
TRIAL COURT ATTORNEYS: ALYSSON LEIGH MILLS
NATHAN LAMAR PRESCOTT
PETER E. MOLL
JAMES GRADY WYLY, III
BRIAN D. WALLACH
KYLE STUART MORAN
ROBERT MAHONEY
M. PATRICK McDOWELL
TAYLOR BRANTLEY McNEEL
WILLIAM C. HAMMACK
JASON W. BURGE
MOLLY L. WELLS
GREGORY W. LANGSDALE
ERIN DIANE SALTAFORMAGGIO
W. WAYNE DRINKWATER, JR.
ROY D. CAMPBELL, III
MEAGAN OLIVIA LINTON
R. DAVID KAUFMAN
THEODORE J. ZELLER, III
LAUREN OAKS LAWHORN
ROBERT THOMAS SCHWARTZ
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: NATHAN LAMAR PRESCOTT
JOHN THOMAS LAMAR, III
ALYSSON LEIGH MILLS
JASON W. BURGE
MOLLY L. WELLS
TAYLOR ALLISON HECK
JOHN T. LAMAR, JR.
ATTORNEYS FOR APPELLEES: JAMES GRADY WYLY, III
W. WAYNE DRINKWATER, JR.
M. PATRICK McDOWELL
TAYLOR BRANTLEY McNEEL
PETER E. MOLL
GREGORY W. LANGSDALE
BRIAN D. WALLACH
WILLIAM C. HAMMACK
ROY D. CAMPBELL, III
R. DAVID KAUFMAN
ROBERT MAHONEY
FRED L. BANKS, JR.
KYLE STUART MORAN
ERIN DIANE SALTAFORMAGGIO
MEAGAN OLIVIA LINTON
LAUREN OAKS LAWHORN
THEODORE J. ZELLER, III
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED - 05/23/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2018-IA-00038-SCT
REX DISTRIBUTING COMPANY, INC.
v.
ANHEUSER-BUSCH, LLC, MITCHELL
BEVERAGE, LLC, MITCHELL REX
DISTRIBUTING, LLC, MITCHELL
DISTRIBUTING COMPANY, INC. AND D.G.
YUENGLING AND SON, INCORPORATED D/B/A
D.G. YUENGLING & SON, INC.
DATE OF JUDGMENT: 12/15/2017
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: NATHAN LAMAR PRESCOTT
JOHN THOMAS LAMAR, III
JOHN T. LAMAR, JR.
TAYLOR ALLISON HECK
ALYSSON LEIGH MILLS
JASON W. BURGE
MOLLY L. WELLS
ATTORNEYS FOR APPELLEE: FRED L. BANKS, JR.
WILLIAM C. HAMMACK
R. DAVID KAUFMAN
ROY D. CAMPBELL, III
W. WAYNE DRINKWATER, JR.
JAMES GRADY WYLY, III
M. PATRICK McDOWELL
KYLE STUART MORAN
TAYLOR BRANTLEY McNEEL
LAUREN OAKS LAWHORN
ERIN DIANE SALTAFORMAGGIO
MEAGAN OLIVIA LINTON
PETER E. MOLL
GREGORY W. LANGSDALE
BRIAN D. WALLACH
ROBERT MAHONEY
THEODORE J. ZELLER, III
NATURE OF THE CASE: CONTRACT
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED - 05/23/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
ISHEE, JUSTICE, FOR THE COURT:
¶1. Rex Distributing Company was a wholesaler of Anheuser-Busch’s beer. When Rex
sought to sell its business, Anheuser-Busch asserted a contractual right to “redirect” the sale
3
to its preferred buyer, Mitchell Distributing Company. Rex alleges that the redirect provision
was void under Mississippi’s Beer Industry Fair Dealing Act (BIFDA) and that Anheuser-
Busch’s interference with the sale caused it damages actionable under the same statute. The
trial court dismissed Rex’s claims against Anheuser-Busch and Mitchell for failure to state
a claim upon which relief can be granted.
¶2. We conclude that Rex alleged a valid cause of action, so we reverse the dismissal of
Rex’s BIFDA claim against Anheuser-Busch and the derivative claims against Mitchell. We
affirm the trial court’s judgment dismissing Rex’s other claims.
FACTS AND PROCEDURAL HISTORY
¶3. This is an interlocutory appeal from a dismissal under Mississippi Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The
following facts are drawn from Rex’s complaint and, for our purposes, must be accepted as
true. See Pryer v. Gardner, 247 So. 3d 1245, 1250 (Miss. 2018).
¶4. Like most states, Mississippi generally requires a three-tier distribution system for
beer. The supplier makes the beer, the wholesaler distributes it, and the retailer sells it to the
public. See Miss. Code. Ann. §§ 67-3-45 to -46 (Rev. 2012); see generally Brian D. Anhalt,
Crafting a Model State Law for Today’s Beer Industry, 21 Roger Williams U. L. Rev. 162,
171-73 (2016). The Mississippi Beer Industry Fair Dealing Act (BIFDA) further regulates
the relationships between beer suppliers, wholesalers, and retailers, specifying things each
can and cannot do. See Miss. Code Ann. §§ 67-7-1 to -23 (Rev. 2012). Our beer laws are
similar to the general franchise laws present in many states. See Anhalt, supra, at 163-64.
4
¶5. Rex was a beer distributor/wholesaler. Anheuser-Busch is the largest beer supplier
in the country. Rex had a longstanding position as Anheuser-Busch’s exclusive distributor
for a swath of the Mississippi Gulf Coast. The distribution contract between the two gave
Anheuser-Busch a right of first refusal if Rex were sold—“at the price and on the terms and
conditions applicable”—and the right to assign the sale to a third-party purchaser of
Anheuser-Busch’s choosing. The parties call this a right to “match and redirect” the sale.
¶6. When Rex attempted to sell, the high bidder was another nearby distributor, Adams
Beverages, Inc. The sale contract (called the Asset Purchase Agreement or APA) provided
that the price would be determined by each individual distribution contract Rex successfully
transferred to Adams. This depended on the approval of each of the suppliers Rex distributed
for—but under Mississippi law, the suppliers’ consent “shall not be withheld or
unreasonably delayed to a proposed transferee who meets [certain] nondiscriminatory,
material and reasonable qualifications and standards.” Miss. Code Ann. § 67-7-13(1) (Rev.
2012).
¶7. Two days before Rex’s sale to Adams was to close, Anheuser-Busch informed Rex
it was exercising a right under the distribution contract to “match and redirect” the sale of
Rex to Mitchell Distributing Company, Inc., another local distributor. According to Rex’s
complaint, this eleventh-hour interference turned out to be part of a continuing scheme by
Anheuser-Busch to manipulate its distributors. Anheuser-Busch had recently tried to
convince its Mississippi distributors not to sell beer from one of its competitors, Yuengling
and Son, but it had been mostly unsuccessful; Mitchell had been the only Anheuser-Busch
5
distributor to spurn Yuengling at Anheuser-Busch’s request.1 Rex alleged Anheuser-Busch
asserted the match-and-redirect claim to reward Mitchell and simultaneously to punish Rex
for selling a competitor’s beer, since under the terms of the sale contract, Rex bore the risk
its other suppliers would refuse the transfer of its distribution rights to the new purchaser.
That is what Rex alleged Yuengling ultimately did when Rex acceded to Anheuser-Busch’s
demand, costing Rex $3.1 million and leading to this lawsuit.
¶8. Rex sued Anheuser-Busch, Mitchell, and Yuengling. Rex accused Anheuser-Busch
and Mitchell of common-law tortious interference with contract and civil conspiracy. It also
alleged that Anheuser-Busch’s exercise of the match-and-redirect provision violated the
Mississippi Beer Industry Fair Dealing Act and Anheuser-Busch breached its contract with
Rex by failing to ensure Rex received the same price it would have had Anheuser-Busch not
redirected the sale. The trial court dismissed all these counts for failure to state a claim under
Rule 12(b)(6). Finally, Rex alleged Yuengling had violated BIFDA by refusing the proposed
transfer to Mitchell of Rex’s Yuengling distribution rights. This claim survived the motion
to dismiss and remains pending in the trial court. This Court granted Rex’s petitions for
interlocutory appeal from the judgments dismissing its claims against Anheuser-Busch and
Mitchell, and the appeals have been consolidated.
DISCUSSION
1. Beer Industry Fair Dealing Act, Mississippi Code Section 67-7-13
1
Rex alleged that Mitchell had accepted Anheuser-Busch’s request not to sell
Yuengling in Mississippi in exchange for help in another market.
6
¶9. The Mississippi Beer Industry Fair Dealing Act (BIFDA) provides in part that a
supplier “shall not interfere with, prevent or unreasonably delay the transfer of the
wholesaler’s business” so long as the proposed transferee “meets such nondiscriminatory,
material and reasonable qualifications and standards required by the supplier for similarly
situated wholesalers.” Miss. Code Ann. § 67-7-13(2) (Rev. 2012). In relevant part, the
statute further permits the supplier to refuse to accept the transfer only “in good faith and for
good cause related to the reasonable qualifications” of the transferee. Id.
¶10. At the outset, we observe that we are reviewing the granting of a motion to dismiss
for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6). At this stage
in the litigation, the allegations of Rex’s complaint must be accepted as true. See Pryer v.
Gardner, 247 So. 3d 1245, 1250 (Miss. 2018). Thus we are required to credit the allegations
in the complaint that the original proposed transferee, Adams, was reasonably qualified and
that Anheuser-Busch lacked good cause to refuse to accept the transfer to Adams.
¶11. BIFDA further provides that wholesalers may not waive its protections: “[a]
wholesaler may not waive any of the rights granted in any provision of this chapter and the
provisions of any agreement which would have such an effect shall be null and void.” Miss.
Code Ann. § 67-7-17 (Rev. 2012).
¶12. Rex alleges BIFDA rendered the “match and redirect” contract provision void and that
Anheuser-Busch’s demand violated Section 67-7-13(2) by “preventing” or “interfering with”
the transfer of its business. Anheuser-Busch responds that it did not violate Section 67-7-
13(2) because Rex’s business was transferred—just not to the company to which Rex wanted
7
it transferred. The trial court found this reasoning persuasive and dismissed Rex’s BIFDA
claim.
¶13. The interpretation of a statute is a question of law, and the standard of review on
appeal is de novo. Natchez Hosp. Co. LLC v. Adams Cty. Bd. of Supervisors, 238 So. 3d
1162, 1163 (Miss. 2018). This Court has never interpreted Section 67-7-13(2), and we are
not aware of any decisions interpreting similar provisions found in the law of some other
states.2 Nor have the parties cited any outside authorities, either by courts or commentators.
We consider this to be a matter of first impression.
¶14. That being said, Anheuser-Busch’s stepping in to insist Rex sell its business to
someone else amounted to “preventing” the proposed transfer under any definition of the
word. Anheuser-Busch likewise “interfered” with the proposed transfer. The only
conceivable definition of the word “interfere” that might not apply would be if it had been
used as a term of art referring to common-law tortious interference with contract, which has
not been argued by any of the parties to this appeal. Reading “interfere” as a term of art
would contradict the oft-cited (and statutorily mandated) rule of statutory interpretation that
nontechnical “[w]ords contained in statutes are to be interpreted ‘according to their common
and ordinary acceptation and meaning.’” Alfonso v. Diamondhead Fire Prot., 122 So. 3d
54, 56 (Miss. 2013) (quoting Miss. Code Ann. § 1-3-65 (Rev. 2005)). BIFDA defines
seventeen different terms, but “interfere” is not one of them. See Miss. Code Ann. § 67-7-5
2
States with analogues to section 67-7-13(2) include: Louisiana (La. Stat. Ann. §
26:806), Alabama (Ala. Code § 28-9-7(2)), Idaho (Idaho Code § 23-1104), Iowa (Iowa Code
§ 123A.6), and Nebraska (Neb. Rev. Stat. § 53-219).
8
(Rev. 2012). We observe, also, that it is impossible for a supplier like Anheuser-Busch to
tortiously interfere with the sale of its distribution rights, because the supplier is a party to
the contract for the sale of its distribution rights. See Bama Budweiser of Montgomery,
Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238, 247 (Ala. 1992) (interpreting a similar
agreement to the one in the instant case); see also Genet Co. v. Annheuser-Busch, Inc., 498
So. 2d 683, 684 (Fla. Dist. Ct. App. 1986) (likewise). “A party to a contract cannot be liable
for tortious interference with the same contract.” Scruggs, Millette, Bozeman & Dent, P.A.
v. Merkel & Cocke, P.A., 910 So. 2d 1093, 1098 n.3 (Miss. 2005) (citing Par Indus., Inc.
v. Target Container Corp., 708 So. 2d 44, 48 (Miss. 1998)). “[T]he wrongdoer [must be]
a ‘stranger’ to the contract which was interfered with—an outsider.” Cenac v. Murry, 609
So. 2d 1257, 1269 (Miss. 1992). If “interfere” meant “tortious interference with contract,”
as the separate opinion contends it should, the statute would prohibit something that is
already impossible, and it would offer distributors no protection whatsoever from unjustified
interference.
9
¶15. We also note that Section 67-7-13(2) further protects a distributor’s right to pass on
her business to specific people after her death, i.e., designated members.3 It reads, in its
entirety,
The supplier shall not interfere with, prevent or unreasonably delay the transfer
of the wholesaler’s business, including an assignment of wholesaler’s rights
under the agreement, if the proposed transferee is a designated member, or if
the transferee other than a designated member meets such nondiscriminatory,
material and reasonable qualifications and standards required by the supplier
for similarly situated wholesalers. Where the transferee is other than a
designated member, the supplier may in good faith and for good cause related
to the reasonable qualifications refuse to accept the transfer of the wholesaler’s
business or the assignment of the wholesaler’s rights under the agreement.
Miss. Code. Ann. § 67-7-13(2) (Rev. 2012). Were we to accept Anheuser-Busch’s reading
of the statute, that there has been no interference with the transfer as long as a transfer
happens, the same interpretation should apply to transfers to designated members. That
would permit an end-run around the statute’s protections for designated members.
3
BIFDA defines a designated member as
the spouse, child, grandchild, parent, brother or sister of a deceased individual
who owned an interest, including a controlling interest, in a wholesaler, or any
person who inherits under the deceased individual’s will, or under the laws of
intestate succession of this state; or any person who or entity which has
otherwise, through a valid testamentary device by the deceased individual,
succeeded the deceased individual in the wholesaler’s business, or has
succeeded to the deceased individual’s ownership interest in the wholesaler
pursuant to a written contract or instrument which has been previously
approved by supplier; “designated member” includes the appointed and
qualified personal representative and the testamentary trustee of a deceased
individual owning an ownership interest in a wholesaler, and it includes the
person appointed by a court as the guardian or conservator of the property of
an incapacitated individual owning an ownership interest in a wholesaler.
Miss. Code Ann. § 67-7-5(e) (Rev. 2012).
10
¶16. Any remaining doubt can be removed by considering the purpose Section 67-7-13(2)
serves within Mississippi’s regulation of the beer industry. BIFDA was expressly intended
to “maintain stability and healthy competition in the light wine and beer industry in this
state.” Miss. Code. Ann. § 67-7-3(a) (Rev. 2012). Mississippi law requires separation
between manufacturers and distributors; a manufacturer (and its officers, agents, employees,
and affiliates) is not permitted to have “any interest in the license, business, assets or
corporate stock of a wholesaler or distributor . . . .” Miss. Code. Ann. § 67-3-46(2) (Rev.
2012). Allowing a manufacturer to choose the owners of its wholesalers in perpetuity would
undermine the statutory separation of the beer industry into three tiers.
¶17. We conclude that Rex has alleged a claim upon which relief can be granted: BIFDA
rendered the match-and-redirect provision null and void, and Anheuser-Busch’s demands
premised on the void provision may have amounted to unjustified “interference” with Rex’s
transfer to Adams, an allegedly qualified transferee. BIFDA expressly provides a remedy
for damages resulting from violations of its protections. Miss. Code Ann. § 67-7-15 (Rev.
2012). The circuit court’s dismissal for failure to state a claim is reversed.
2. Breach of Contract—Anheuser-Busch
¶18. Rex also claimed that Anheuser-Busch breached its contract with Rex, which Rex
contends required Anheuser-Busch to ensure Rex received “the same price, net of taxes,
[Rex] would have received from the disapproved purchaser.” We have held that under
BIFDA the “provisions [of the contract between Anheuser-Busch and Rex] which would
have [the] effect [of permitting interference with the transfer of Anheuser-Busch’s
11
distribution rights are] null and void.” Miss. Code Ann. § 67-7-17 (Rev. 2012). But it is not
clear that the statute also nullifies Anheuser-Busch’s obligation to pay for the transfer of the
rights, and the contract between Anheuser-Busch and Rex includes an explicit severability
clause. The enforceability question has not been raised as an issue on appeal by the parties.
And we ultimately conclude that Rex has failed to state a claim for breach of contract, so the
question of enforceability is moot and will not be addressed.
¶19. The full provision at issue, Paragraph 4(b)(v), states,
If Anheuser-Busch disapproves a proposed owner in Wholesaler’s business
solely because of (A) concern with the resulting Territory configuration or (B)
market combinations to achieve economies of scale or enhanced sales
opportunities, and if a sale is eventually completed to a party preferred and
designated by Anheuser-Busch, then Anheuser-Busch shall ensure that the
selling Wholesaler receives the same price, net of taxes, Wholesaler would
have received from the disapproved purchaser.
¶20. We observe, first, that the contract distinguishes between “disapproval” of a transfer,
which is outlined in Paragraph 4(b), and “assignment,” which is found later, in Paragraph
4(d). The same-price provision is found in Paragraph 4(b) (disapproval), and it expressly
applies only “if [Anheuser-Busch] disapproves a proposed owner.” The match-and-redirect
paragraph, Paragraph 4(d), actually specifies its own way for the price to be determined: “at
the price and on the terms and conditions applicable to such proposed [transfer]. . . .”
Paragraph 4(d) omits the same-price language. Rex does not allege that Anheuser-Busch
breached the contract by failing to ensure the price as specified in Paragraph 4(d).
¶21. Even if it did apply to the transfer here, Paragraph 4(b)(v) conditions the “same price”
language on Anheuser-Busch’s disapproving the proposed transferee “solely because of (A)
12
concern with the resulting Territory configuration or (B) market combinations to achieve
economies of scale or enhanced sales opportunities.” (Emphasis added.) This is inconsistent
with Rex’s theory of the case, which was that Anheuser-Busch exercised the assignment
provision with the intent of punishing Rex and rewarding Mitchell. Anheuser-Busch is
permitted to plead alternative and inconsistent theories, but no allegation is made in the
complaint that Anheuser-Busch acted solely for either of the reasons required by the same-
price provision.
¶22. Rex also suggests a breach-of-contract claim may have arisen because an officer of
Anheuser-Busch promised Rex it would receive the same consideration in the sale to
Mitchell as it would have in the sale to Adams. But the breach-of-contract claim as
articulated in the complaint alleges that the written contract between Anheuser-Busch and
Rex governs, not the later communications. Rex’s brief on appeal likewise never argued the
representations were binding. Thus, we conclude that the question of whether the later
representations were binding is not before us.
¶23. In summary, Rex relies on the same-price language in Paragraph 4(b)(v). That
provision, by its own terms, is not applicable to the transfer that occurred here. We affirm
the dismissal of the breach-of-contract claim.
3. Other Claims Against Anheuser-Busch
¶24. Rex also alleges, in a cursory fashion, that the circuit court erred in dismissing its
other claims against Anheuser-Busch. No authority is cited, and the argument is directed
entirely to refuting the reasons the trial court gave for granting the motion to dismiss. That
13
is insufficient to demonstrate reversible error. On appeal from a dismissal for failure to state
a claim upon which relief can be granted, the appellant must show that it stated a claim, not
merely refute the reasons the trial court gave for dismissing the claim. See Satterfield v.
State, 158 So. 3d 380, 382 (Miss. Ct. App. 2015). At any rate, these claims are not properly
before this Court because “[f]ailure to cite legal authority in support of an issue is a
procedural bar on appeal.” Webb v. DeSoto Cty., 843 So. 2d 682, 685 (Miss. 2003) (citing
McClain v. State, 625 So. 2d 774, 781 (Miss. 1993)).
4. Tortious Interference—Mitchell
¶25. Next, we address Rex’s claim that Mitchell’s alleged collaboration with Anheuser-
Busch gave rise to a claim of tortious interference with Rex’s contract to sell its business to
Adams. Under Mississippi law, the elements of tortious interference with contract are:
1. that the acts were intentional and willful;
2. that they were calculated to cause damage to the plaintiffs in their
lawful business;
3. that they were done with the unlawful purpose of causing damage
and loss, without right or justifiable cause on the part of the defendant
(which constitutes malice); and
4. that actual damage and loss resulted.
Cenac v. Murry, 609 So. 2d 1257, 1268-69 (Miss. 1992) (quoting Liston v. Home Ins. Co.,
659 F. Supp. 276, 281 (S.D. Miss. 1986)). “An action for interference with the contract
ordinarily lies when ‘a party maliciously interferes with a valid and enforceable contract[,]
causing one party not to perform and resulting in injury to the other contracting party.’”
14
Nichols v. Tri-State Brick & Tile Co., 608 So. 2d 324, 328 (Miss. 1992) (quoting Mid-
Continent Tel. Corp. v. Home Tel. Co., 319 F. Supp. 1176, 119 (N.D. Miss. 1970)).
¶26. The typical tortious-interference case involves actions by the defendant to induce
some third party to break a contract with the plaintiff. See, e.g., Cenac, 609 So. 2d at 1268.
In this case the claim is essentially that Anheuser-Busch induced Rex to break the contract
through the threat of legal action. It is a peculiar inversion of the typical tortious-interference
case, but the tort encompasses more than just the typical case—the elements do specify
exactly how the interference must occur. See id. at 1268-69; see also W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 129 (5th ed. 1984) (noting that tortious
interference can be found when a wrong is committed against the plaintiff instead of the
plaintiff’s contracting partner). “[I]n many cases interference with contract is not so much
a theory of liability in itself as it is an element of damage resulting from the commission of
some other tort . . . .” Keeton et al., supra, § 129.
¶27. Mitchell argues it cannot be liable for tortious inference, since Mitchell is not alleged
to have committed any of the acts that constitute interference. The complaint alleges that
“Anheuser-Busch and Mitchell interfered with [the sale to Adams] through an intentional and
willful scheme to redirect the sale of Rex’s business from Adams to Mitchell,” but all of the
specific acts of interference are attributed to Anheuser-Busch rather than to Mitchell.
Nonetheless, there is an allegation of concerted action—Anheuser-Busch and Mitchell
worked together, and Anheuser-Busch could not have done it without Mitchell’s
participation. Thus, Rex alleged Mitchell was a joint tortfeasor and is liable for Anheuser-
15
Busch’s wrongful acts. See D & W Jones, Inc. v. Collier, 372 So. 2d 288, 292 (Miss. 1979)
(“All who actively participate in any manner in the commission of a tort, or who command,
direct, advise, encourage, aid or abet its commission, are jointly and severally liable
therefor.” (quoting Hutto v. Kremer, 222 Miss. 374, 76 So. 2d 204 (1954))).
¶28. Mitchell goes on to argue that “Rex does not allege that the match and redirect (or
purchase and assign) provision contained in Paragraph 4(d) of the Equity Agreement is
unlawful or unenforceable due to BIFDA.” This claim ignores Rex’s arguments throughout
the litigation and instead points to a specific word choice in the complaint—the complaint
alleged that Anheuser-Busch violated BIFDA when it “refused to accept Rex’s sale to
Adams.” According to Mitchell, this means Rex alleged only that BIFDA was violated by
the refusal and not by the assignment to Mitchell. We find the contention meritless, and we
further note that when considering a motion to dismiss, the factual allegations in the
complaint should be construed “in a manner most favorable to the non-movant.” Tucker v.
Hinds Cty., 558 So. 2d 869, 872 (Miss. 1990) (citing Rathborne v. Rathborne, 683 F.2d 914,
918 (5th Cir. 1982)).
¶29. Mitchell next points out that the sale contract to Adams required the consent of
Yuengling, which had not yet been given at the time Anheuser-Busch made the demand for
the assignment to Mitchell. According to Mitchell, there can be no cause of action for
tortious interference with a contract when performance depends on a condition precedent.
Mitchell offers no authority on this point, and our own review suggests the prevailing view
is the opposite, as long as the plaintiff can prove the condition precedent would have
16
occurred. See SCEcorp v. Superior Court, 4 Cal. Rptr. 2d 372, 375-78 (Cal. Ct. App. 1992)
(surveying authorities). That allegation was made expressly in the complaint.
¶30. Next, Mitchell argues there is no allegation it acted with specific animus toward Rex.
But the “malice” required for tortious inference with contract is a term of art, and under
Mississippi law, it can be inferred from certain acts:
The element of willfulness and calculation does not require a showing on the
part of the plaintiff that defendant had a specific intent to deprive plaintiff of
contractual rights. Rather, the requisite intent is inferred when defendant
knows of the existence of a contract and does a wrongful act without legal or
social justification that he is certain or substantially certain will result in
interference with the contract.
Par Indus., Inc., 708 So. 2d at 48 (emphasis omitted) (quoting Liston, 659 F. Supp. at 281).
¶31. Mitchell then contends in a cursory fashion that it cannot be found to have committed
tortious interference because it had a “justifiable interest and reason for acting” or was
“exercising a legitimate interest or right.” The assertion is essentially that as long as it was
to Mitchell’s financial advantage to do what it did, its actions could not be tortious
interference. That is simply not the rule, as Prosser and Keeton on the Law of Torts has
explained,
The defendant is also permitted to interfere with another’s contractual relations
to protect his own present existing economic interests, such as the ownership
or condition of property, or a prior contract of his own, or a financial interest
in the affairs of the person persuaded. He is not free, under this rule, to induce
a contract breach merely to obtain customers or other prospective advantage
....
17
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 129 (5th ed. 1984)
(footnotes omitted). Mitchell had no present existing interest in Rex’s business and thus
cannot claim the protection of this rule.
¶32. Finally, Mitchell contends the tortious interference claim should be dismissed because
Rex failed to plead that it proximately caused Rex’s damages. But Rex certainly makes that
allegation in the complaint: “But for [Anheuser-Busch] and Mitchell’s interference, Rex
would have consummated its sale to Adams and received the full $50.5 million purchase
price. [Anheuser-Busch] and Mitchell’s interference is the proximate cause of Rex’s $3.1
million loss.” Mitchell then contends Rex cannot show proximate cause because it went
through with selling its business to Mitchell. This contention is unsupported by authority or
argument in Mitchell’s brief on appeal. “It is the duty of the briefing party to cite to authority
which supports its argument.” Hatfield v. Deer Haven Homeowners Assoc., Inc., 234 So.
3d 1269, 1273 (Miss. 2017) (internal quotation marks omitted) (quoting Russell v. Real
Prop. Servs., LLC v. State, 200 So. 3d 426, 430 (Miss. 2016)). Failure to cite authority
waives the issue on appeal. See id. Mitchell also claims Rex cannot show proximate cause
because Yuengling is entirely to blame for the damages, but, again, this assertion is
unsupported by argument or authority.
¶33. We conclude that the trial court erred in dismissing Rex’s claim against Mitchell for
tortious interference with contract.
5. Civil Conspiracy—Mitchell
18
¶34. Finally, Rex contends the trial court erred in dismissing its claim that Mitchell is liable
for Anheuser-Busch’s acts under a theory of civil conspiracy. Under Mississippi law, the
elements of a civil conspiracy are: “(1) an agreement between two or more persons, (2) to
accomplish an unlawful purpose or a lawful purpose unlawfully, (3) an overt act in
furtherance of the conspiracy, (4) and damages to the plaintiff as a proximate result.”
Bradley v. Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App. 2013) (quoting
Gallagher Bassett Servs. v. Jeffcoat, 887 So. 2d 777, 786 (Miss. 2004)). The elements “are
quite similar to those required of a criminal conspiracy, with the distinguishing factor being
that ‘an agreement is the essence of a criminal conspiracy,’ while ‘damages are the essence
of a civil conspiracy.’” Id. (quoting 15A C.J.S. Conspiracy § 7 (2012)).
¶35. First, Mitchell contends there was no underlying tort and therefore no civil conspiracy.
But there is an underlying wrong—Anheuser-Busch’s alleged violation of the statute
prohibiting it from interfering with transfers of Rex’s business, the Beer Industry Fair
Dealing Act (BIFDA), as we explained above. Mitchell is alleged to have agreed to and
participated in Anheuser-Busch’s course of action, before and after Anheuser-Busch formally
demanded that Rex sell to Mitchell instead of Adams.
¶36. Mitchell also erroneously contends that its liability for civil conspiracy depends on
Mitchell’s having committed an overt act that damaged Rex. This is a fundamental
misstatement of the nature of civil conspiracy—it exists as a cause of action to hold
nonacting parties responsible. Rex has to show an unlawful overt act and it has to show
19
damages, but the overt act need not be by Mitchell. See Jeffcoat, 887 So. 2d at 786. As
explained in Jeffcoat,
Under Mississippi law, “[a] conspiracy is a combination of persons for the
purpose of accomplishing an unlawful purpose or a lawful purpose
unlawfully.” Levens v. Campbell, 733 So. 2d 753, 761 (Miss. 1999). Where
a civil conspiracy gives rise to damages, a right of recovery may arise.
Roussel v. Hutton, 638 So. 2d 1305, 1315 (Miss. 1994). It is elementary that
a conspiracy requires an agreement between the co-conspirators. See Brown
v. State, 796 So. 2d 223, 226-27 (Miss. 2001) (conspiracy is “a combination
of two or more persons to accomplish an unlawful purpose or to accomplish
a lawful purpose unlawfully, the persons agreeing in order to form the
conspiracy,” and the “persons must agree . . . in order for a conspiracy to
exist”).
Jeffcoat, 887 So. 2d at 786.
¶37. Because we have held that Rex stated a claim when it alleged Anheuser-Busch
violated BIFDA, we also reverse the dismissal of Rex’s civil-conspiracy claim against
Mitchell.
CONCLUSION
¶38. The trial court erred in dismissing Rex’s Beer Industry Fair Dealing Act (BIFDA)
claim against Anheuser-Busch, as well as its claims of tortious interference with a contract
and civil conspiracy against Mitchell. The judgment is reversed on those counts, and the case
is remanded for further proceedings consistent with this opinion. Otherwise, the judgment
is affirmed.
¶39. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM AND
CHAMBERLIN, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS
IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.
20
GRIFFIS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶40. This interlocutory appeal considers whether the circuit court correctly granted the
motions to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure
12(b)(6) filed by Anheuser-Busch and the Mitchell Companies.4
¶41. As to Anheuser-Busch, the majority makes two rulings that conflict. First, the
majority reverses the circuit court’s decision in favor of Anheuser-Busch on Rex’s statutory
claim under the Mississippi Beer Industry Fair Dealing Act (BIFDA). See Miss. Code Ann.
§§ 67-7-1 to -23 (Rev. 2012). The majority concludes, as a matter of law, that BIFDA
“rendered the match-and-redirect provision null and void . . . .” Maj. Op. ¶ 17. I disagree
with and dissent from this holding.
¶42. Next, the majority finds that the circuit court correctly dismissed the breach-of-
contract claim because Rex asserted a claim under the “disapproval” or “same price”
provision of the Wholesaler Equity Agreement (Paragraph 4(b)(v)) and not under the “match
and redirect” provision (Paragraph 4(d)). I concur with this holding and the majority’s
decision to affirm the dismissal of the “other claims” against Anheuser-Busch.
¶43. I disagree with and dissent from the majority’s holding that the circuit court erred in
granting a motion to dismiss as to the Mitchell Companies. I would affirm the dismissal of
the Mitchell Companies.
4
The Complaint named as defendants Mitchell Beverage, LLC, Mitchell Rex
Distributing, LLC, and Mitchell Distributing Company, Inc. The Complaint also referred
to these separate entities collectively and did not specify the relationships of each entity. For
this opinion, I adopt the collective identification of these entities as “the Mitchell
Companies.”
21
I. Standard of Review
¶44. A motion to dismiss for failure to state a claim tests the legal sufficiency of the
complaint. Lagniappe Logistics, Inc. v. Buras, 199 So. 3d 675, 677 (Miss. 2016). We do
not defer to the trial court’s ruling. Jourdan River Estates, LLC v. Favre, 212 So. 3d 800,
803 (Miss. 2015). If the issue presented is a question of law, we review it de novo. Id. If the
issue is a question of fact, we limit our review to the face of the complaint, and we accept the
allegations of the Complaint as true. City of Meridian v. $104,960.00 U.S. Currency, 231
So. 3d 972, 974 (Miss. 2017). A Rule 12(b)(6) motion to dismiss should not be granted
unless “it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set
of facts in support of the claim.” City of Meridian, 231 So. 3d at 974 (citing Rose v. Tullos,
994 So. 2d 734, 737 (Miss. 2008)).
II. Claims Asserted Against Anheuser-Busch
¶45. The majority begins its analysis with the BIFDA claim. Two applicable contracts
govern the analysis of this claim. In 1997, Rex and Anheuser-Busch entered the “Amended
and Restated Anheuser-Busch, Inc. Wholesaler Equity Agreement.” Then, in 2016, Rex and
Adams Beverages of Mississippi, LLC, entered an Asset Purchase Agreement.
¶46. Our review should start with an analysis of Rex’s claims against Anheuser-Busch for
breach of contract.
A. Breach-of-Contract Claim
¶47. The majority correctly rules that the circuit court properly dismissed Rex’s breach-of-
contract claim against Anheuser Busch. My analysis differs slightly.
22
¶48. Count I of the Complaint alleges,
[Anheuser-Busch]’s Breach of Contract Claim
65. Rex and [Anheuser-Busch] entered a Wholesaler Equity Agreement.
The Wholesaler Equity Agreement was a valid and binding contract between
Rex and [Anheuser-Busch]. The provisions of the Wholesaler Equity
Agreement govern [Anheuser-Busch]’s exercise of “match and redirect” rights
with respect to Rex’s sale of its business.
66. Specifically, the Wholesaler Equity Agreement requires that if
“[Anheuser-Busch] disapproves a proposed owner . . . and if a sale is
eventually completed to a party preferred and designated by [Anheuser-
Busch], then [Anheuser-Busch] shall ensure that the selling Wholesaler
receives the same price, net of taxes, Wholesaler would have received from
the disapproved purchaser.”
67. The Wholesaler Equity Agreement gives [Anheuser-Busch] the right
and option to purchase Rex’s ownership interest, but only “at the price and on
the terms and conditions applicable to such proposed [transfer], subject
to the following: . . . [Anheuser-Busch] may assign such right to any third
party selected by [Anheuser-Busch], so long as [Anheuser-Busch] . . . remains
liable to [Rex] for payment of the purchase price, if such third party violates
its obligation to pay such purchase price to Wholesaler.”
68. [Anheuser-Busch] assigned its right to purchase Rex’s distributorship
to Mitchell, but [Anheuser-Busch] did not ensure that Rex received the same
price it would have received from Adams. [Anheuser-Busch] breached the
Wholesaler Equity Agreement.
69. [Anheuser-Busch] is liable to Rex for all damages caused by its breach
of the Wholesaler Equity Agreement, including the loss of the full purchase
price.
(Emphasis added.)
¶49. These allegations refer to two provisions of the Wholesaler Equity Agreement: (1)
the “disapproval” or “same price” provision in Paragraph 4(b)(v), and (2) the “match and
redirect” provision in Paragraph 4(d). In relevant part, these provisions state,
23
4. Ownership of Wholesaler
Although this is a personal service agreement and the participation of Manager
is vital to both parties, the ownership of Wholesaler is also important because
it is the owner or owners who have the right to establish basic policies and
have the responsibility of providing financing, personnel, equipment and
facilities for the effective operation of the business. . . . Therefore, because the
participation of the owner(s) could also have a significant effect on the sale of
Anheuser-Busch Products and the performance of this Agreement, the parties
agree as follows:
(a) Unless Wholesaler shall have followed the procedures set forth in
subparagraphs (b) and (c) below, this Agreement shall immediately terminate
pursuant to the terms of paragraph 6 whenever there is a change of ownership
in Wholesaler’s business. . . .
(b) A change of ownership of Wholesaler’s business is a matter of vital
concern to both Anheuser-Busch and Wholesaler. Anheuser-Busch recognizes
Wholesaler’s desire to obtain the best available price for its business.
Wholesaler understands that the ability of Anheuser-Busch to successfully
market its Products in the Territory is dependent upon the financial, marketing
and other qualifications of the prospective purchaser of Wholesaler’s business.
The parties acknowledge that these objectives are not mutually exclusive and
recognizing Wholesale’s desire to obtain the best available price for
Wholesaler’s business from a purchaser who is fully qualified to market the
Products and fulfill the obligations set forth in this Agreement, they agree that
the following provisions are necessary and desirable for both Wholesaler and
Anheuser-Busch:
(i) If an owner of Wholesaler desires to sell, transfer or otherwise
dispose of any interest in Wholesaler, then Wholesaler shall notify
Anheuser-Busch by submitting a Notice of Intent to Sell . . . prior to the
commencement of any negotiations or related discussions with any
prospective purchaser or other third party . . . . Wholesaler shall
cooperate with Anheuser-Busch and provide it with such information
as Anheuser-Busch may require in order to extend an offer to purchase
such interest in the business. If such discussions result in an agreement
between Wholesaler and Anheuser-Busch, the parties shall promptly
effectuate such agreement.
....
24
(iv) In determining whether to approve or disapprove, as the case may
be, a proposed purchaser of an ownership interest in Wholesaler’s
business, Anheuser-Busch shall be concerned with the qualifications of
the proposed purchaser to fulfill the obligations of this Agreement and
the effects of the resulting business combination, including but not
limited to, the resulting Territory configuration (if the proposed
purchaser is already an Anheuser-Busch wholesaler) and the potential
advantages and disadvantages of market combinations. In evaluating
the proposed owner’s qualifications, Anheuser-Busch may consider
such factors as it deems appropriate . . . .
(v) If Anheuser-Busch disapproves a proposed owner in Wholesaler’s
business solely because of (A) concern with the resulting Territory
configuration or (B) market combinations to achieve economies of
scale or enhanced sales opportunities, and if a sale is eventually
completed to a party preferred and designated by Anheuser-Busch, then
Anheuser-Busch shall ensure that the selling Wholesaler receives the
same price, net of taxes, Wholesaler would have received from the
disapproved purchaser.
....
(d) At any time prior to the date on which Anheuser-Busch approves or
disapproves a proposed transfer of an ownership interest in Wholesaler’s
business, Anheuser-Busch shall have the right and option to purchase this
ownership interest at the price and on the terms and conditions applicable to
such proposed change, subject to the following:
....
(ii) Anheuser-Busch shall exercise its rights to purchase such ownership
interest under this subparagraph 4(d) by notifying Wholesaler in
writing. Subject to subparagraph 4(d)(iii) below, upon receipt of such
notice Wholesaler agrees to promptly execute such documents and take
such actions as may reasonably be required to transfer such ownership
as contemplated herein.
....
(iv) After notifying Wholesaler that Anheuser-Busch intends to
exercise its right to purchase such ownership interest of Wholesaler in
accordance with this subparagraph 4(d), Anheuser-Busch may assign
25
such right to any third party selected by Anheuser-Busch, so long as
Anheuser-Busch (A) assigns this right to a third party legally qualified
to purchase and operate the business of Wholesaler under the laws of
the applicable State, and (B) remains liable to Wholesaler for payment
of the purchase price, if such third party violates its obligation to pay
such purchase price to Wholesaler.
(Emphasis added.)
¶50. After considering the motion to dismiss, the circuit court ruled,
Count I, Breach of Contract, alleges [Anheuser-Busch] breached the
Wholesaler Equity Agreement. Rex put its business up for sale to the highest
and best bidder, which it considered to be Adams. The Wholesaler Equity
Agreement Rex had with [Anheuser-Busch] provided that [Anheuser-Busch]
had to approve the purchase or it could “match and redirect” it. Prior to the
sale’s completion, [Anheuser-Busch] exercised this right and redirected the
sale of Rex’s [Anheuser-Busch] distributorship to Mitchell. Pursuant to the
agreement [Anheuser-Busch] had to ensure that the sale was “at the price and
on the terms and conditions” as set forth in the Asset Purchase Agreement
between Rex and Adams. Adams had offered Rex a total of $50.5 million,
which Rex claims is the “price” it was entitled to receive from Mitchell.
However, before the sale of assets by Rex to Mitchell was consummated,
Yuengling, another of Rex’s suppliers, withheld its consent to the sale and
terminated its contractual relationship with Rex. As a result Rex did not have
a Yuengling distributorship to transfer to Mitchell. The Asset Purchase
Agreement provides that if one of Rex’s suppliers refuses to give consent to
the transaction “then the purchase price shall be reduced by the portion of the
purchase price attributable” to such supplier. The Yuengling distributorship
rights were valued at $3.1 million which were the deducted from the offered
price of $50.5 million. The sale to Mitchell was then completed. Rex is
attempting to recover the $3.1 million.
Rex specifically agreed to the terms and conditions of the sale by executing the
two contracts. [Anheuser-Busch] did not breach its contract with Rex because
[Anheuser-Busch] exercised its lawful contractual right to “match and
redirect” the sale from Adams to Mitchell under the “terms and conditions” of
the contracts. The Court further notes that even though Rex claims that it was
“forced” to conclude the sale from Rex to Mitchell, in fact, Rex voluntarily
concluded the sale. Rex took the risk that Yuengling would not approve if AB
decided to match and redirect.
26
¶51. The circuit court was correct to rule that the allegations of the Complaint established
that Anheuser-Busch exercised its rights under the “match and redirect” provision (Paragraph
4(d)). And the circuit court was correct to rule that Anheuser-Busch was obligated to Rex
“for payment of the purchase price, if such third party violates its obligation to pay such
purchase price to Wholesaler.” The Complaint alleged that Rex received payment of $47.4
million of the original purchase price of $50.5 million. Rex contends that it lost $3.1 million
because Yuengling did not consent to the sale of Rex’s Yuengling distributorship to the
Mitchell Companies.
¶52. The Complaint alleged that, under Paragraph 4(d), Anheuser-Busch had the right to
purchase Rex’s “ownership interest at the price and on the terms and conditions applicable
to such proposed change” and that Anheuser-Busch “remains liable to [Rex] for payment of
the purchase price.” For this, Rex was paid $47.4 million.
¶53. As to the loss of $3.1 million because Yuengling did not consent to the sale to the
Mitchell Companies, the Asset Purchase Agreement provided in Section 5.l(d) that
Consents. Payoff Letters, and Releases Not Obtained at Closing.
. . . If any Supplier other than Anheuser Busch expressly refuses to deliver a
Consent . . . , or has conditioned consent on conditions that are unacceptable
to Purchaser, in Purchaser’s sole discretion (in either event a “Rejection”, and
such Brand for which such Supplier has refused to give Consent shall be an
“Excluded Brand”), then the Purchase Price shall be reduced by the portion
of the Purchase Price attributable to such Excluded Brand, and [Adams] shall
not be required to sell and Purchaser shall not be required to purchase such
Excluded Brand or any Inventory associated with such Excluded Brand, if such
third party violates its obligation to pay such purchase price to Wholesaler.
(Emphasis added.)
27
¶54. Yuengling did not consent. Under Section 5.1(d) of the Asset Purchase Agreement,
“then the Purchase Price shall be reduced by the portion of the Purchase Price attributable
to such Excluded Brand.” The circuit court was correct to rule, as a matter of law under the
Mississippi Rule of Civil Procedure 12(b)(6) standard, that Rex did not have a contractual
right to receive the $3.1 million that Adams had agreed to pay for the Yuengling
distributorship.
¶55. The circuit court’s analysis was correct and should be affirmed. Because this is
consistent with the majority’s holding, I concur.
B. Violation of Beer-Industry-Fair-Dealing-Act Claim
¶56. Having determined that Anheuser-Busch did not breach the terms of the Wholesaler
Equity Agreement, we should then consider whether Anheuser-Busch violated BIFDA.
¶57. Count V of the Complaint alleges,
[Anheuser-Busch]’s Violation of Beer Industry Fair Dealing Act
87. The Mississippi Beer Industry Fair Dealing Act states that a supplier
“shall not interfere with, prevent or unreasonably delay the transfer of the
wholesaler’s business, including an assignment of wholesaler’s rights under
the agreement, if the proposed transferee is a designated member, or if the
transferee other than a designated member meets such nondiscriminatory,
material and reasonable qualifications and standards.” Miss. Code. Ann. §
67-7-13(2).
88. Adams was a qualified transferee under § 67-7-13 because at all
material times Adams met [Anheuser-Busch]’s “nondiscriminatory, material
and reasonable qualifications and standards.”
89. [Anheuser-Busch] had no good cause related to “nondiscriminatory,
material and reasonable qualifications and standards” to refuse to accept the
transfer of Rex’s business to Adams. [Anheuser-Busch]’s refusal to accept the
transfer of Rex’s business to Adams was in bad faith.
28
90. As a result of [Anheuser-Busch]’s violation of § 67-7-13(2), Rex lost
the full purchase price of its sales contract with Adams, and incurred damages
of at least $3. l million.
91. [Anheuser-Busch] is liable under § 67-7-21(2) for all damages incurred
by Rex as a result of its violation of § 67-7-13(2) as well as court costs and
reasonable attorneys’ fees.
¶58. After considering the motion to dismiss, the circuit court ruled,
Count V alleges Violations of Mississippi’s Beer Industry Fair Dealing Act
[BIFDA]. It is Rex’s position that AB violated Miss. Code Ann. § 67-7-13(2)
by refusing to accept the transfer of Rex’s business to Adams. The section
states that a supplier “shall not interfere with, prevent or unreasonably delay
the transfer of the wholesaler’s business, including an assignment of
wholesaler’s rights under the agreement, if the proposed transferee is a
designated member, or if the transferee other than a designated member meets
such nondiscriminatory, material and reasonable qualifications and standards.”
Rex transferred its business to Mitchell under the same terms and conditions
that it negotiated with Adams for the AB assets. Yuengling terminated Rex's
right to distribute Yuengling products and transferred those assets to another
wholesaler. Thus there was no violation of BIFDA.
¶59. The majority concludes the circuit court committed reversible error as to this issue.
The majority rules that “BIFDA rendered the match-and-redirect provision null and void, and
Anheuser-Busch’s demands premised on the void provision may have amounted to
unjustified ‘interference’ with Rex’s transfer to Adams . . . .” Maj. Op. ¶ 17.
¶60. This finding is in conflict or inconsistent with the majority’s findings on Count
1—Breach of Contract. If the “match and redirect” provision is “null and void” under
BIFDA, then it could not also be enforceable in the same action.
¶61. I agree with the majority that no Mississippi court has interpreted Mississippi Code
Section § 67-7-13(2). Yet, with no supporting authority, the majority concludes that
29
Anheuser-Busch’s decision to exercise its contractual rights in the Wholesaler Equity
Agreement “prevented” and “interfered” with Rex’s intended transfer to Adams.
¶62. We start with Section 67-7-13:
Transfer of business and assignment of rights of wholesalers.
(1) Upon written notice of intent to transfer the wholesaler’s business, any
individual owning . . . may transfer the wholesaler’s business to a designated
member, or to any other person who meets the nondiscriminatory material and
reasonable qualifications and standards required by the supplier for similarly
situated wholesalers. The consent or approval of the supplier shall not be
required of any transfer of the wholesaler’s business, including the assignment
of the wholesaler’s rights under the agreement, to a designated member or
shall not be withheld or unreasonably delayed to a proposed transferee who
meets such nondiscriminatory, material and reasonable qualifications and
standards. . . .
....
(2) The supplier shall not interfere with, prevent or unreasonably delay the
transfer of the wholesaler’s business, including an assignment of wholesaler’s
rights under the agreement, if the proposed transferee is a designated member,
or if the transferee other than a designated member meets such
nondiscriminatory, material and reasonable qualifications and standards
required by the supplier for similarly situated wholesalers. Where the
transferee is other than a designated member, the supplier may in good faith
and for good cause related to the reasonable qualifications refuse to accept
the transfer of the wholesaler’s business or the assignment of the wholesaler’s
rights under the agreement.
Miss. Code Ann. § 67-7-13 (Rev. 2012) (emphasis added).
¶63. Under Section 67-7-13(2), Anheuser-Busch “shall not interfere with, prevent or
unreasonably delay the transfer of [Rex]’s business.” Id. A proper statutory interpretation
does not stop there.
30
¶64. The second sentence of Section 67-7-13(2) provides that Anheuser-Busch may “refuse
to accept the transfer of [Rex]’s business or the assignment of [Rex]’s rights under the
agreement.”5 Under the second sentence of Section 67-7-13(2), Anheuser-Busch took an
action to “match and redirect” the sale to the Mitchell Companies. Anheuser-Busch’s (and
the Mitchell Companies’) actions were indeed lawful under the Wholesaler Equity
Agreement and BIFDA.
¶65. If we must delve into the definition of “interfere,” Mississippi courts have considered
and interpreted the term “interference.” In Par Industries, Inc. v. Target Container Co., 708
So. 2d 44, 48 (Miss. 1998), this Court considered the tort of “interference” with performance
of a contract. The Court ruled,
When a person causes another to breach a contract with some third person, the
tort is one of interference with performance of a contract. The four elements
for this tort are: “(1) that the acts were intentional and willful; (2) that they
were calculated to cause damage to the plaintiffs in their lawful business; (3)
that they were done with the unlawful purpose of causing damage and loss,
without right or justifiable cause on the part of the defendant (which
constitutes malice); and (4) that actual damage and loss resulted.” Cenac v.
Murry, 609 So. 2d 1257, 1268–69 (Miss.1992) (citing Liston v. Home Ins.
Co., 659 F. Supp. 276, 281 (S.D. Miss. 1986)).
Par Indus., Inc., 708 So. 2d at 48 (emphasis added). Clearly, the third element is the Court’s
interpretation or pronouncement as to what conduct constitutes “interference.”
¶66. For there to be “interference,” there must be some action that is “done with the
unlawful purpose of causing damage or loss, without right or justifiable cause on the part of
5
The reference to a “designated member” under the analysis of Section 67-7-13(2)
is not relevant. Adams was the intended transferee and was clearly a “transferee other than
a designated member.” Miss. Code. Ann. § 67-7-13(2).
31
the defendant (which constitutes malice).” Id. (emphasis added) (quoting Cenac, 609 So.
2d at 1268-69). I am of the opinion that Anheuser-Busch’s actions, undertaken under a
contractual right, cannot and should not be considered “interference.” Moreover, Anheuser-
Busch did not act to cause Rex “damage or loss.” In fact, as discussed above, Anheuser-
Busch had to pay Rex the amount of compensation that Adams was obligated to pay.
¶67. As to the word “prevent,” the sale was consummated consistent with the terms of the
Asset Purchase Agreement; just not to Adams.
¶68. The circuit court was correct to find that Anheuser-Busch was not in violation of
BIFDA. I respectfully dissent from the majority’s decision to reverse and remand the
dismissal of Rex’s claim against Anheuser-Busch for a violation of BIFDA.
C. Other Claims Against Anheuser-Busch
¶69. I concur with the majority’s decision that Rex has failed to properly raise the circuit
court’s dismissal of other claims asserted against Anheuser-Busch. Rex neither argued nor
cited authority to contest the dismissal of its claims against Anheuser-Busch for bad faith
breach of contract, tortious interference with contract, civil conspiracy, or punitive damages.
¶70. As to the claim that Anheuser-Busch tortiously interfered with its contract, I would
add that clear legal authority contradicts Rex’s position. In Cenac, the Court explained,
[A] cause of action exists by a party to a contract against some third, outside
person who causes the party not to perform. Thus, in order to pursue a cause
of action, it is accepted that the wrongdoer is a “stranger” to the contract which
was interfered with—an outsider. “A party to a contract cannot be charged
with interfering with his own contract.” As the tort of interference with
contract has evolved, it is settled that, “[a] defendant’s breach of his own
contract with the plaintiff is of course not a basis of the tort.” Therefore,
tortious interference with performance of a contract is unavailable as a theory
32
of relief for the Cenacs in that the wrongdoer (Murry) is also a party to the
contract.
Cenac, 609 So. 2d at 1269 (second alteration in original) (citations omitted). Indeed, if
Anheuser-Busch had breached its contract with Rex, the breach would not be a tort. Id. “His
remedy is in contract and for breach.” James L. Robertson, The Law of Business Torts in
Mississippi, 15 Miss. College L. Rev. 331, 360 (1995).
III. Claims Asserted Against the Mitchell Companies
A. Claims Against Mitchell Distributing Company, Inc.
¶71. The Complaint identified the Mitchell Companies as follows:
Defendants Mitchell Beverage, LLC, Mitchell Rex Distributing, LLC, and
Mitchell Distributing Company, Inc. (collectively, “Mitchell”) are two
Mississippi limited liability companies and one Mississippi corporation,
respectively, that operate as a single business enterprise or joint venture.
The Complaint did not specify any separate conduct or actions by these individual legal
entities. Mitchell Distributing Company, Inc., filed a separate motion to dismiss under Rule
12(b)(6). The circuit court ruled,
Plaintiff has alleged that Mitchell Distributing, Mitchell Beverage, LLC, and
Mitchell Rex Distributing, LLC, “operate as a single business enterprise or
joint venture.” Such an accusation would require piercing the corporate veil.
Piercing the corporate veil is reserved for “those extraordinary factual
circumstances where to do otherwise would subvert the ends of justice.” Gray
v. Edgewater Landing, Inc., 541 So. 2d 1044, 1046 [(Miss. 1989)] (citing
Johnson & Higgins of Miss., Inc. v. Comm’r of Ins., 321 So. 2d 281, 284
(Miss. 1975)). A corporate entity will not be disregarded in contract claims
unless the complaining party can demonstrate: (1) some frustration of
expectations regarding the party to whom he looked for performance: (2) the
flagrant disregard of corporate fom1alitics by the defendant corporation and
its principals; and (3) a demonstration of fraud or other equivalent misfeasance
on the part of the corporate shareholder. Gray, 541 So. 2d at 1047. Penn Nat.
Gaming, Inc. v. Ratliff, 954 So. 2d 427, 431 (Miss. 2007). Plaintiff alleges
33
nothing beyond the allegation that these entities “operate as a single business
or joint venture.” This conclusory allegation fails to establish a potential
“single business” claim against Mitchell Distributing.
The joint venture allegation also fails. The critical elements of the existence
of a joint venture are (1) intent (2) control, and (3) profit sharing. Mayer v.
Angus, 83 So. 3d 444 (Miss. Ct. App. 2012). This complaint fails to make any
assertion regarding the corporations which could lead to the proof required to
establish that a joint venture exists. Plaintiff’s single allegation fails to allege
a claim that would entitle plaintiff to a finding that the corporations were
involved in a joint venture.
¶72. It is important to note that Rex does not challenge this ruling.
B. Claim for Tortious Interference with Contract
¶73. Count III of the Complaint alleged,
[Anheuser-Busch]’s and Mitchell’s Tortious Interference with Contract
74. Rex had a valid and enforceable agreement to sell its distributorship to
Adams for $50.5 million.
75. [Anheuser-Busch] and Mitchell interfered with that agreement through
an intentional and willful scheme to redirect the sale of Rex’s business from
Adams to Mitchell.
76. [Anheuser-Busch] and Mitchell were aware that redirecting the sale of
Rex’s business to Mitchell would cause Rex to lose the ability to sell its
Yuengling distribution rights, which were worth at least $3. l million.
77. Based on information and belief, the purpose of [Anheuser-Busch] and
Mitchell’s interference was to reward Mitchell and marginalize Yuengling –
to [Anheuser-Busch]’s benefit, at Rex’s expense. [Anheuser-Busch] and
Mitchell’s interference prevented Rex from transferring its Yuengling
distribution rights to another distributor who could distribute Yuengling over
Rex’s entire territory. [Anheuser-Busch] and Mitchell therefore knew that Rex
would be damaged by their actions.
78. But for [Anheuser-Busch] and Mitchell’s interference, Rex would have
consummated its sale to Adams and received the full $50.5 million purchase
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price. [Anheuser-Busch] and Mitchell’s interference is the proximate cause of
Rex’s $3.1 million loss.
79. [Anheuser-Busch] and Mitchell are jointly and severally liable to Rex
for all damages caused by their tortious interference with Rex’s agreement
with Adams.
¶74. There are four elements to a claim for tortious interference with contract:
1. that the acts were intentional and willful;
2. that they were calculated to cause damage to the plaintiffs in their
lawful business;
3. that they were done with the unlawful purpose of causing damage and
loss, without right or justifiable cause on the part of the defendant
(which constitutes malice); and
4. that actual damage and loss resulted.
Cenac, 609 So. 2d at 1268-69 (quoting Liston, 659 F. Supp. at 281)).
¶75. The Mitchell Companies contend that Rex cannot establish the third element of this
tort: “that they were done with the unlawful purpose of causing damage and loss, without
right or justifiable cause on the part of the defendant (which constitutes malice).” Id.
(quoting Liston, 659 F. Supp. at 281).
¶76. The only authority cited by the majority is that “Rex alleged Mitchell was a joint
tortfeasor and is liable for Anheuser-Busch’s wrongful acts.” Maj. Op. ¶ 27. See D & W
Jones, Inc. v. Collier, 372 So. 2d 288, 292 (Miss. 1979) (“All who actively participate in any
manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet
its commission, are jointly and severally liable therefor.” (quoting Hutto v. Kremer, 222
Miss. 374, 76 So. 2d 204, 208 (1954))).
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¶77. The Complaint does not assert any factual allegations that would establish an
“unlawful purpose” or that the Mitchell Companies actions were “without right or justifiable
cause.” Considering all factual allegations in the Complaint in the light most favorable to
Rex, there are simply no facts that would support a finding that the Mitchell Companies acted
with an unlawful purpose.
¶78. The fact that the Mitchell Companies are engaged in the business of a beer
distributorship is not unlawful. The fact that the Mitchell Companies were interested in
purchasing another beer distributorship under the Anheuser-Busch brand is not unlawful.
The fact that the Mitchell Companies entered an agreement with Anheuser-Busch to purchase
the Rex distributorship after Anheuser-Busch exercised its contractual rights was not
unlawful. In fact, Rex was paid the agreed-upon price.
¶79. Rex argues that the Mitchell’s argument on this issue “splits hairs, unconvincingly.”
I disagree. As discussed above, since the circuit court was correct to dismiss Rex’s claims
against Anheuser-Busch, there is simply no basis to determine that Mitchell’s actions were
wrongful or unlawful. Mitchell had a “justifiable economic interest” to accept Anheuser-
Busch’s decision to match and redirect the purchase of Rex’s assets.
¶80. I would affirm the circuit court’s dismissal of the tortious-interference-with-contract
claim against the Mitchell Companies.
C. Claim for Civil Conspiracy
¶81. Count III of the Complaint alleged,
[Anheuser-Busch]’s and Mitchell’s Tortious Interference with Contract
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81. [Anheuser-Busch] and Mitchell conspired to redirect the sale of Rex’s
business from Adams to Mitchell.
82. Based on information and belief, the purpose of AB and Mitchell’s
conspiracy was to reward Mitchell and marginalize Yuengling – to [Anheuser-
Busch]’s benefit, at Rex’s expense. AB and Mitchell’s interference prevented
Rex from transferring its Yuengling distribution rights to another distributor
who could distribute Yuengling over Rex’s entire territory. [Anheuser-Busch]
and Mitchell therefore knew that Rex would be damaged by their actions.
83. In furtherance of their conspiracy, in addition to many other overt acts,
[Anheuser-Busch] exercised its match and redirect rights under the Wholesaler
Equity Agreement to force Rex to sell its business to Mitchell, and Mitchell
consummated that transaction.
84. But for [Anheuser-Busch] and Mitchell’s conspiracy, Rex would have
consummated its sale to Adams and received the full $50.5 million purchase
price. [Anheuser-Busch] and Mitchell’s conspiracy is the proximate cause of
Rex’s $3.1 million loss.
¶82. The circuit court ruled,
Rex also makes a conspiracy claim against Mitchell Beverage. A civil
conspiracy claim requires “a combination of persons for the purpose of
accomplishing an unlawful purpose or a lawful purpose unlawfully.”
Gallagher Basset[t] Services, Inc. v. Jeffcoat, 887 So. 2d 777, 786 (Miss.
2004). It requires “(1) an agreement between two or more persons, (2) an
unlawful purpose, (3) an overt act in furtherance of the conspiracy, and (4)
resulting damages to the plaintiff.” Rex’s claim for tortious interference fails.
As a result, the claim for civil conspiracy cannot rest on that tort and also fails.
See Wells v. Shelter General Ins. Co., [217] F. Supp. 2d 744, 755 (S.D. Miss.
2002). Mitchell Beverage lawfully assumed Adams’s rights and obligations
under the APA. The conclusory allegations do not support that any acts taken
pursuant to the assignment or APA were done with an unlawful purpose.
Given the failure of the tortious interference claim, there are insufficient
allegations to support a conspiracy to tortiously interfere with Rex’s contract
with Adams. The only overt act Mitchell Beverage committed is that it agreed
to step into Adams’s position after [Anheuser-Busch] exercised its right to
reassign the contract to another wholesaler. This is not a sufficient allegation
to support a claim of civil conspiracy.
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¶83. A conspiracy requires an agreement “to accomplish an unlawful purpose or a lawful
purpose unlawfully . . . and damages to the plaintiff as a proximate result.” Bradley v. Kelley
Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App. 2013) (citing Jeffcoat, 887 So. 2d
at 786).
¶84. As previously discussed, there was no action by the Mitchell Companies that was “to
accomplish an unlawful purpose or a lawful purpose unlawfully.” The fact that Mitchell was
willing to have the sale redirected to it neither demonstrates an attempt to accomplish an
unlawful purpose or an attempt to accomplish a lawful purpose unlawfully. Also important
is that Rex received the compensation it was entitled to receive under the Asset Purchase
Agreement. Even were there a civil conspiracy, no damages would have resulted.
¶85. I would affirm the circuit court’s orders to dismiss the claims Rex asserted against
Anheuser-Busch and the Mitchell Companies. Therefore, I concur in part and dissent in part.
KING, P.J., JOINS THIS OPINION.
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