Building Dispute Exposes Justice Dickinson's Disdain for Peas
On Thursday the Mississippi Supreme Court decided a case that was a dispute over the near-sale of a planned law office building. Here is the opinion in Sweet v. TCI.
Anderson discussed the opinion here. The case turned on the issue of whether an affidavit was so conclusory as to be ineligible to support a motion for summary judgment. Amazingly, the following passage in Justice Dickinson's dissent convinced only Justice Randolph to join the dissent:
The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.
My initial reaction was that this was one of the greatest pieces of legal writing in the history of American jurisprudence. But upon further reflection, I've decided that Justice Dickinson should have referred to corn or spinach instead of peas.
The case was not a dispute between lawyers. It was a dispute between a developer and Dennis Sweet which involved a contract to buy his building. My firm (Danks, Miller & Cory) held the earnest money and was dismissed once the earnest money was deposited into the registry of the court.
Justice Dickinson's metaphor is overbroad; the term "peas" is far too all-encompassing to enjoy a label of good or bad. If he's talking about English peas, then I'm with him. But if he's talking about purple-hull peas, for example, then we've got a serious question about judicial temperament on our hands.
The normally astute Dickinson is missing that "I have tried and failed to obtain satisfactory financing" is *both* a conclusory statement *and* a statement of fact.
(He appears to confuse "conclusory statement" with "value judgment" also, but that is less clear.)
The problem is that, where the thing to be proved is inability to secure satisfactory financing, the mere statement I quoted above has too few facts.
Anderson's rule for affidavit drafting: the conclusion you wish to prove should be deducible from the facts sworn to, even if you left the conclusion out. A "conclusory statement" is, precisely, just such a conclusion, without the predicate facts.
So the overall lesson I'm supposed to take from all this is that, in the future, I should look to this case as binding affidavit precedent?
Until the next case, LD. Until the next case.