IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-01634-SCT GULF COAST HOSPICE LLC, A MISSISSIPPI LIMITED LIABILITY

COMPANY

, JY OTI DESAI, KRUPA DESAI AND IQBAL SAV ANI

v. LHC GROUP INC., A DELAWARE CORPORATION, MISSISSIPPI HEALTH CARE GROUP, LLC, A MISSISSIPPI LIMITED LIABILITY

COMPANY

AND LHCG XXV

I, LLC, A MISSISSIPPI LIMITED LIABILITY COMPANY

DATE OF JUDGMENT: 11/06/2017 TRIAL JUDGE: HON. CHRISTOPHER L. SCHMIDT TRIAL COURT ATTORNEYS: MICHAEL B. HOLLEMAN TAYLOR B. McNEEL STEPHEN J. CARMODY COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: MICHAEL B. HOLLEMAN PATRICK W ILLIAMS ATTORNEYS FOR APPELLEES: TAYLOR B. McNEEL STEPHEN J. CARMODY L. KYLE W ILLIAMS NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 06/06/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. L o u i s i ana H ospice Corporation, otherwise known a s LHC, s o ught to acquire G u l f
Coast Hospice LLC in D’Iberville, Mississippi. LHC a n d G u lf C oast Hospice executed a letter of intent outlining the basic term s of the proposed acquisition. Ultim ately , t he partiesf

ailed t o consum m ate the transaction. G ulf Coast Hospice LLC and its m em b ers, Jy oti Desai, Krupa Desai, and Iqbal Savani 1 sued LHC Group Inc., L HCG XXVI LLC, a nd Mississippi Health Care Group LLC, 2 asserting several theories of l i a bility stem m ing f rom the f ailed acquisition. ¶2. The trial court granted L HC’s m otion f or sum m ar y j u d g me n t a n d dism issed Gulf
Coast H ospice’s claim s . Gulf Coast Hospice appeals, a r guing that g enuine issues of m aterial
f act should have p revented sum m ary judgm ent. Gulf Coast Hospice’s chief argum ent is that
L H C entered into an enf

orceable contract to acquire its hospice operations. A lternatively , Gulf Coast Hospice argues that if no enf orceable contract to purchase exists, its claim s f or breach of contract and duty of good f aith with respect to t h e letter of intent and tortious interf erence should have survived sum m ary judgm ent. ¶3. W e hold that no enf o r ceable contract e x i s t s , t h a t t h e d o c t r i n e o f e s t o p p e l is inapplicable, and that no genuine issue of m aterial f act exists regarding Gulf Coast Hospice’s

m isrepresentation claim s. W e f u rther hold no g enuine i ssue of m aterial f act exists regarding Gulf Coast Hospice’s alternative claim s. As such, we af f i rm . FACTS AND PROCEDURAL HISTORY ¶4. B e t w e en June 2007 and Decem ber 2008, Prasant Desai owned and operated G u l f
Coast Hos p i c e . Around Decem ber 2 008, Prasant transf

erred his 100 percent ownership interest t o his m o ther Jy oti Desai (50 percent ownership), his sister K rupa Desai (25 percent

1 F o r clarity , th e A p p ellan ts are co llectiv ely ref erred to as G u lf

C o ast H o sp ice.

2 F o r clarity , th e A p p ellees are co llectiv ely r ef erred to as L H C

. 2o w n e rship), and Dr. Iqbal Savani 3 (25 percent ownership). Jy oti’s husband Haresh Har r y

Desai, who i s Prasant’s a nd Krupa’s f ather, was the “m anaging m em ber of the board f

or the

m eetings[ ,]” did “som e paperwork[ ,]” and “handl[ ed] the c heckbooks.” Although the record is u nclear about Harry ’s actual r ole with G ulf Coast Hospice, the parties do not dispute that he served in a representative capacity and handled negotiations. 4 ¶5. Around t he tim e of the ownership transition within t he f am ily , Gulf Coas t H o s p ice hired Linda Rogers to s erve as director of nursing and adm inistrator. Shortly af t er Rogers’s hire, she becam e the prim ary decisionm aker i n charge of daily operations. Neither the Gulf
Coast H ospice m em

bers nor Harr y h a d a n y role i n daily o perations. Under Rogers’s leadership, p rof

i ts and revenues grew by substa n t i a l am ounts. Of im portance, the patient

c e n sus grew f

rom six to f

i f ty by the end of 2010. Harry c onsidered Rogers to b e t h e k e y

em ploy e e running daily

operations, as well as the m ost valuable em ploy e e. ¶6. In Novem

ber 2 010, independent broker Craig Kincannon contacted Harry , inquiring whether Gulf Coast Hospice would be i nterested in s elli n g its h ospice operations to LHC. Harry r e sponded af

f irm atively

. On Decem

ber 2 7, 2010, LHC and Gulf Coast Hospice entered into a letter of intent with respect to the proposed acquisition of Gulf Coast Hospice’s operations. The f

irst paragraph provided as f o llows: This letter sets f

orth our m

utual understandings with respect to the basic term s of a proposed acquisition by LHC Group, Inc. (“ LHCG ”) of the assets of the

3 D r. S av an i is a p h y s i cian an d an acq u ain tan ce o f th e D e sai f

am ily

. 4 Although Harry n ever had an ownership interest in the com pany , h e regularly told Rogers that he was an owner. Harry also told Rogers that he owned the building where Gulf Coast Hospice was located even though his son Prasant owned the building. 3hospice operations of Gulf Coast Hospice (“ Seller ” ) that serve the Mississippi

counties of George, Hancock, Harrison, Jackson, and S tone ( the “ Business ” ). As m ore f

ully described in this letter, it is our m utual intent to ne gotiate a satisf actory , d ef

initive asset pu r c h a se agreem ent (the “ Asset Purchase Agreem ent ” ) and such other docum ents as m a y b e n ecessary to consum m ate the proposed transaction ( together with the Asset Purchase Ag reem ent, the

“ Agreem ents ”). The inten t i o n t o c o n s u m m a t e t h e t r a n saction described h erein (the “ Transaction ”) is subject to the f ollowing term s and conditions: ¶7. The f

our page letter of intent contin u e d b y o u t l i n i n g term s a n d conditions of the proposed transaction and included the tentative proposed purchase price of $1.75 m illion, “[ b]ased on the inf

orm ation m a de available t hus f ar[ .]” Paragraph f

ive con t a i n e d a nonexhaustive list of conditions to closing:
Conditions to Closing

. T he Closing of the Transaction s hall be subject to the satisf action o f m

utua l l y agreeable term s and conditions, including, without lim itation, the f

o llowing: (a) Negotiation, execution a nd delivery by the p arties of the Agreem ents; (b) The approval of the t r a n sactions contem

plated herein and the Agreem ents by the Board o f Directors or other governing body of each party , a pproval o f which shall be obtai n e d by each party prior to the execution o f the Agreem ents; (c) Satisf

actory comp l e t ion of due diligence b y LHC[ ] and its af f iliates; (d) Receipt of

all necessary

consents a n d approvals of state and f ederal governm ental a

uthorities and other third parties, if any ; (e) Receipt of adequate assurances f rom the applicable state Departm ent of Health Services an d the f ederal Centers f or M e dicare and Medicaid Services that the hom e health agency licenses and provider agreem ents w i t h the Medicare a nd Medica i d p r ogram s are in good standing

4and are tr a n sf erable t o [ LHC]. LHC[ ] or one of its af f iliates will be responsible f or obtaining the f

oregoing assurances tim ely ; and (f ) Satisf

action of such other c o n ditions as m ay be reasonable and custom ary in acquisition agreem ents. ¶8. Paragraph f

o urteen provided, in pertinent part, as f ollows: Non-Binding Effect. It i s understoo d t h a t t h is letter m erely constitutes a statem ent of the m

utual intentions of the parties with r e s p e c t t o the Transaction, does not contain all m atters u pon which agreem ent m

ust be reach in order f or the Transaction to be consum m ate d a nd, except in respect to Paragraphs 6 through 1 3, inclusive, and t his Paragraph 14, creates n o binding rights in f

avor of any party

. A binding com m i tm ent with res p ect t o the Transaction will result o n ly if the Agreem ents are executed and delivered, and are then subject only to the term s and conditions contained therein. ¶9. T h e l e t t e r o f i n t e n t g r anted LHC the ability to “conduct, to the extent determ ined d e s i r a b l e or necessary by its own discretion, a review of t he business, a s sets, liabilities,
f inancial c ondition and r esults of operations, properties owned or o per a ted by [ Gulf Coast Hospice] and the books and records of [ Gulf Coast Hospice].” ¶10. On January 4 , 2011, LHC’s project m anager Dustin Delahoussay e f or the Gulf

Coast Hospice acquisition em ailed Harry

. Dustin explained the prelim inary steps of the acquisition
process, attached several docum e nts to be either reviewed or com pleted, sum m arized the docum e n t s , a n d i nf

orm ed Harry that LHC’s attorney w ould send draf t docum e nts in the weeks to com e . An acquisition tim eline attached to the em ail provided a target closing date of February 28, 2011, a nd the “Target Ef f ective D ate 3/1/2011.” On J anuary 7, 2011, LHC

em ailed H arry transaction docum ents, including a draf t a s set purchase agreem e n t l a b e led
“LHCG Draf

t” and “For Discussion Purposes Only .” LHC also sent a change of ownership

5notif

ication to the Mississippi State Departm ent of H ealth’s Health Facilities Licensure and
C e rtif ication Division. LHC notif ied the Departm ent that, ef f ective March 1, 2 0 1 1 , L H C would be purchasing Gulf Coast Hospice. ¶11. On January

13, 2011, Dustin em ailed LHC em ploy ees L o ri Stagg, v ice president of
LHC hospice operations, and Brach My ers, assistant director of a cquisitions, inf orm ing t hem of Harry ’s concern t hat LHC attem pt to retain all e m

ploy ees o r , at m inim

u m , try to f

ind positions f

or them with L HC. Dustin explained that, although Rogers’s salary is m u ch higher than LHC’s staf

f ing m odel f

o r adm inistrators, “keeping L inda [ Rogers] is k ey to this deal and

we m ust keep her on board.” ¶12. On January 28, 2 011, Dustin em ailed f ellow LHC em

p loy ees: “As y ou all are aware of at this point, we are set to acquire Gulf Coast Hospice in D’Iberville, MS e f f ective on 3/1.” Dustin generally brief e d the LHC em

ploy ees about Gulf Coast Hospice and described Rogers’s role with Gulf C oast Hospice. On January 31, 2011, Rogers had a d inner m eeting with LHC em

ploy ees Stagg and S helly Denton, LHC’s hospice regional m anager. The three discussed com

pensation, and Rogers told them about her success. Follow i n g t h e d i nner, Stagg em ailed Dustin explaining that Rogers s eem ed capable but that s h e had ref used to accept a salary of $85,000 with a 12 percent bonus. R ogers t o l d L o r i and Denton that she would accept a salary of $102,000. Stagg explained that LHC “cannot pay her this salary f or

a Hospice this size especially s ince she would m ake 30K m ore than the other Adm inistrators and m ore than her supervisor, Shelley [ Denton].” S tagg a lso explained that Rogers had told them that Gulf Coast Hos p ice staf f were w orried about the m andatory staf f m eeting

6scheduled f or the next day

. Stagg m entioned that “the broker [ had] ‘pr o mi s ed’ them that LHC would not cut any one’s salary .” ¶13. On February 1, 2011, a team of LHC representatives arrived at Gulf Coast Hospice and m et w ith em

pl o y e e s . W ith Gulf Coast Hospice’s perm ission, LHC announced to

em ploy e es that i t was to acquire G ulf Coast Hospice, ef f ective March 1, 2011. LHC showed

a presentation about its com pany a nd p rovided additional w ritten m a terials, including

em ploy e e benef

its. Gulf C oast Hospice em p loy ees be c a me d i sgruntled when they were advised about proposed changes to their pay structure. ¶14. LHC and Rogers collaborated to address staf f changes to f

i t LHC’s staf

f i ng m odel in anticipation of the ef

f ective date. At the tim e, Gulf Coa s t H o s p i c e h a d f ourteen f ull t im e

em ploy e es, but LHC’s m odels provided f or ten and a half

. L H C d i d n ot choose what

rem aining em

ploy e es w o u l d b e subject to s taf f reductions. Harry conf irm e d that no

em ploy e e “was ever f

ired at the direction of

LHC.” ¶15. Rogers chose the three individuals with t h e most write-ups to be a dvised that they would not be e x t e n d e d of f er l etters to rem ain with LHC—Rhonda Schwan, Jam ie Schonewitz, and Jennif

er Morris. It was also decided t hat part tim e social workers Tim Jones and Kim berly Fay ard would not be retained by LHC because they were f u ll tim e e m

ploy ees of Am edisy s, a com

p etitor o f L HC’s hom e healt h b u s i n ess and a ref erral source to Gulf
Coast Hospice. Rogers i nf orm ed LHC that Jones and Fay ard would r a t her keep their f ull tim e j obs with A m edisy s than work part tim e f or LHC. Gulf Coast Hospice em ploy ed two f ull tim e m arketing e m

p loy ees, C r y s t a l M iller and Leslie Hensarling. B ecause LHC’s

7staf

f ing m odel provided f

or one f ull tim e m arketing e m

ploy ee, Rogers proposed a solution

to keep one m arketing em ploy ee f ull tim e; the other would rem ain a m arketing em ploy ee and would absorb Schwan’s duties. LHC agreed. ¶16. During February , LHC undertook several t asks onsite in preparation of t he ef f ective date of March 1, 2011, so that no interruption in o perations would o ccur a f ter closing. LHC installed a new telephone sy stem , changed telephone provider s , i n stalled a new c om puter
sy stem connected to the LHC nationwide network, set up em p loy ees with LHC em ail accounts, and changed the pest c ontrol contract f or the building, all set to t ake ef f ect March 1, 2011. LHC also transf erred utility

services to its nam e, ef

f ective March 1, 2011. ¶17. On February 8, 2011, Dustin em ailed R o g e r s , inf orm ing h er that LHC’s HR team would arrive at G ulf Coast Hospice on February 10 and February 11 to p resent of f er letters,

com pensation r eviews, and b e nef its enrollm ents. 5 Rogers responded, “Great” and c onf irm ed that she would i nf

orm the em

ploy ees who would not be retained. Rogers did n ot advise Schwan, S chonewitz, a nd Morris that they would be not b e retained. R ogers had inf orm ed
H a r r y about the proposed lay o f f s, but he told her, “y ou don’t f ire nobody until t h e y h a v e taken over.” ¶18. On February

10 and 11, L HC’s HR team arrived onsite as s c heduled and conducted individual m eetings. Gulf C oast Hospice em ploy ees com

pleted new hire i nf

orm ation sheets, provided driver license inf orm ation, p rovided inf

orm a tion f

o r d i r e c t d eposit p urposes,

5 A n y m aterial ch an g es to w h ich th e d issen t ref ers w o u ld h av e g o n e in to ef f ect o n ly h ad th e clo sin g o ccu rred

.
8photographed f or LHC identif

ication bad g e s , subm itted to background checks, and underwent drug screening. During the individu a l m e e t i n g s , S chwan, Schonewitz, and Morris were inf orm ed that they would not be retained by LHC. ¶19. G u l f Coast Hospice em ploy ee RN Gail W isgoski presented to the HR team f o r h e r individual m eeting, but she was n ot on t h e l ist of current em ploy e es. Consequently , LHC inf orm ed her that it did n ot have an of f er l etter f or her. Rogers recen t l y h a d r e c r uited and hired W isgoski f

rom another hospic e c o mp a n y . Rogers becam e upset about the situation with W isgoski and c om

plained to LHC. Rogers f elt that LHC’s proposed solution to of f er W i sgosk i a part tim e position was not suf f i cient. Dustin and Rogers d isagreed about why
W i sgoski did not have an o f f er letter. Ultim ately , Dustin told Rogers that the situation had been a r esult of “really bad m iscom m unication.” Rogers testif

ied that “at that point is when
I decided [ LHC] w ould never m ake m e m ad again, that I would not work f or them .” Rogers did not disclose her decision to LHC. ¶20. On February 10, 2011, Dustin s e n t a n e ma i l to Harry e xplaining the reasons why certain em

ploy ees would not be retained. Dustin also apologized f o r the situation regarding
W i sgoski. D ustin assured Harry , “W e rem ain conf i dent in y ou, Linda [ Rogers], a nd all of

our team m em

b ers’ ability to work through these problem s, a n d we rem ain com m i tted to y ou, the staf f , and Gulf Coast Hospice.” ¶21. On February 11, 2011, Harry told the broker to send “ t he f inal a g reem ent with the new purchase price that takes i n t o a c c ount the m oney f or Linda [ Rogers’s bonus] and the

s e v e rance f

or the volunteer coordinator.” LHC’s in-house counsel em ailed Dustin, “if w e

9e x p ect to close 2/28, we need [ Gulf Coast H ospice’s] com m ents to the docu me n t s a n d

schedules NOW !” ¶22. On February 12, 2 0 1 1 , R o g e r s t o l d H a r ry she would not work f or LHC. Rogers

t e s t i f i e d t h a t Harry and Dr. Savani told her n ot to say any thing about h er i ntention. Dr. Savani did n ot r ecall the conversation. Harry denie d telling R ogers not to say any thing to LHC but claim ed that Rogers had already inf o rm ed LHC that she would not work f or LHC.
H a r r y a l s o c laim ed that “She’s not supposed to tell any b ody what she’s d oing.” Rogers testif i ed that she n ever told L H C her intention; i nstead, s h e t o l d L H C, “I’m not sure, but I will let y ou know[ .]” Rogers testif ied that when H arry and Dr. Savani h eard a b out Rogers’s

statem ent, they

conf ronted her. Rogers described the m eeting: Harry saw [ Gulf Coast Hospice e m ploy ee] C ry s tal Miller outside o f the building som ewhere, and h e told Cry stal M iller that I m ade a m istake, that I shouldn’t have said that. And then he and Dr. Savani cam e. I don’t know if it was the s am e d ay or a couple of day s later i n m y of f ice and said, y ou shouldn’t have said that. You m ade a m istake. And t hey were very upset with m e. And I s a id, y o u guy s have p ut m e in a bad s ituation, where y ou are asking m e to lie, and I’m not c om f ortable with it, so I d id the best that I could f or the situation. Y ou told m e not to tell. You are m y em p loy er. I still work f

or y ou. But when this [ L HC em

ploy ee] asked m e a direct q uestion, y ou wanted m e to lie. And when I just said, I don’t know, I will let y ou k now when I decide, y ou all are angry . W ell, y ou should haven’t t old. I said, well, y o u guy s put m e in a bad situation. That was the extent of the conversation. ¶23. On February 15, 2011, f ive em ploy ees resigned, including Cry stal Miller and Rhonda
Sm ith. Meanwhile, Gulf C oast Hospice had p reviously contracted w ith two m edical directors. One m edical director h ad provided Gulf Coas t Hospice notice that he would no longer serve as a m e dical director, and the other ref used to speak with LHC.

1 0¶24. On February 21, 2011, Dustin sent Harry a w ire transf er request f

orm and seller’s W -9 f orm in anticipation of closi n g . O n February 22, 2011, Dustin sent a draf t of the closing

statem ent to Harry

. On February 22, 2011, W isgoski a nd a part t im e em p loy ee resigned. On February 23, 2011, Ingrid Misca v a ge of Gulf Title Com pany sent Harry a redlined asset purchase agreem ent d a ted “12/72 3 / 2 0 1 1 .” A gain, the top of the docum ent read “LHCG
Dra f t ” a n d disclaim ed that i t was “For Discussion Purposes Only .” The d raf t agreem ent included a purchase price of $1.75 m illion. ¶25. Around February 2 4 , 2011, Rogers accepted a j ob w ith a c om peting hospice com

pany . Rogers did n ot d isclose h er acceptance to L HC until af ter t h e s c h e d u led closing date. On February 24, 2 011, Denton em ailed Stagg expressing concerns that R o gers m ight qui t d u e
to her problem s with LHC. Denton st a t e d t h a t s h e w ould d o h er best to retain h er and the

rema i ning staf

f

. O n February 25, 2011, Denton em ailed LHC em ploy ees, inf

orm ing t hem that Gulf Coast Hospice RN Gracie Flurry had called to tell her that Rogers and m ost of the staf f planned to walk out on March 1, 2011, a nd would attem pt to take patients with them

. Denton relay ed the inf

orm a tion provided by

Flurry : Linda has b een giving every one a very negative im age about LHC[ ], not only within the agency , but in the com m u nity and with the doctors as w ell. Gracie t h inks t hat t he r eal issue is that Linda is u nable to “give up control of her agency [

. ”] She w ants to m ake sure that the agency f alls apart when she leaves. ¶26. Denton explained Gulf Coast Hospice staf

f ’s negative perception of

LHC. Cy

nthia
W e lls then em ailed Denton, “I k now . . . a lot of it is our f

ault!” Denton responded to W ells, writing that she “needs to be t h e r e f r e q uently f

ollowing the announcem e nt. Every one is

1 1screwing up.” Denton also expressed concerns t hat a m edical director had n ot been

contracted, a requirem ent f or a hospice to operate. ¶27. LHC becam e c oncerned whether, if Rogers were to leave, any p atients would rem ain. Michael Freem an, vice president o f acquisitions, em ailed Lori, Brach, a nd Dustin noting the uncertainty surrounding t he staf f and asked, “Do we push the deal back a m onth to see what hap p ens and get a better grasp on things? ” Stagg responded, “[ t]hat m ight be the best alternative - - - W ill Harry hold of f f or a m onth? ” D ustin responded to Brach, “This is just
g r eat.

. . Now that all this is going on. . . Of course I just get an em ail f rom Nathan s a y i n g that he is now conf

ident we can close on Monday !!” ¶28. At LHC’s r equest, on February 28, 2 011, Gulf Coast t o o k a poll of em ploy ees who would be willing t o work f or LHC. Patrick W i l l i a m s, Gulf Coast Hospice’s attorney ,

em ailed D ustin a list of t e n e m p l oy ees and the chaplain who had s tated their intention of

rem aining with LHC. A new of f er was extended to two e m ploy ees—Schonewitz and Morris—who had been previously advised that they would be laid of f f oll o w i n g t h e acquisition. W illiam s inf orm ed Dustin to contact him to discuss t h e l i s t a nd wrote that he “[ l]ooked f

orward to working with [ Dustin] to resolve this m atter.” ¶29. LHC ref

used t o close the transaction. LHC m aintained that conditions in the letter of intent had not been m et. Nonetheless, discussions c ontinued, and LHC hoped to “f ind a way
to press f o rward without L inda Rogers in the picture.” On March 4, 2011, LHC sent to W i lliams a revised d

r af t asset purchase agreem ent, containing a noncom petition provision
f o r R o gers. LHC advised that the revised draf t purchase agreem e nt “incorporat[ ed] thos e

1 2changes discussed am ongst the parties earli e r t o d a y .” The draf t included a purchase price of $1.75 m illion, r ef

l ecting the additional $ 25,000 t hat had been discussed to c over the cost of a bonus pay able t o Rogers to of f set her salary reduction. LHC also advised W illiam s, “W e

are still working on the non-com pete agreem ent f

or Linda Rogers and will get t hat to y ou as quickly as possible.” The top o f the draf t asset purchase agreem ent again read “LHCG Draf t” and disclaim ed that it was “For Discussion Purposes Only .” ¶30. W i lliam s f

orwarded the revised purchase agreem ent t o Harry and Prasant. The March 4, 2 011, draf

t contained conditions f

or a noncom

p etition agreem ent f

or Rogers and a patient

census m inim

u m . The draf

t provided a new closing date of March 9, 2011. W illiam s advised Harry and Prasant that the noncom petition agreem ent f

or Rogers did not provide a required tim e lim it. W illiam s presented a noncom petition agreem ent to Rogers, b u t s he ref used to sign it. On March 21, 2011, acquisition discussions ended. I n August 2011, Gulf
Coast Hospice was sold f

or $ 500,000 to a nother purchaser. The new p urchaser had of f ered $1.2 m illion, but ultim ately the deal closed f or $500,000 because the p urchase price had been based on the patient census. At the tim e of the s ale, Gulf Coast Hospice had eleven patients. ¶31. G u l f C o a s t H o s p i c e s u e d L H C , a s serting the f ollowing claim s arising o ut o f t h e

unconsum m ated a cquisition: b r each o f contract; b reach and tortious b reach o f contract; breach and tortious breach o f the letter of i n t e n t ; t o rtious interf e rence with contracts and business relations; f

raud, m isrepresentation, a nd f raudulent inducem ent; negligent

1 3m isrepresentation; conspirac y ; declaratory j udgm ent; p rom issory estoppel; detrim ental

reliance; and unjust enrichm ent and q uantum meruit

. 6 ¶32. L H C f

iled a m otion f

or sum m ary judgm ent on each claim asserted by G u l f C o a s t Hospice. The trial court granted LHC’s m otion f o r sum m ary judgm ent. T he trial court f ound that the letter of intent clearly provided that bef ore any closing could occur, t he parties f irst had to m u tually execute a f

inal asset purchase agreem ent. The trial court continued, “[ i]t is undisputed that no s uch agreem ent was executed.” T he trial court also f ound that the letter of intent provided t hat the closing of the transaction was expressly conditioned upon “satisf a c t o r y c o mpletion of d

ue diligence by LHC[ ] and its af f iliates.” The trial court rejected Gulf Coast’s argum ent that due dil i g e n c e had been com pleted bef

ore LHC’s

a n nouncem ent to Gulf Coast Hospice em ploy ees, because the letter of intent expressl y authorized LHC to “ assess the staf f ing levels” and to identif

y em ploy ees that i t wished to hire “[ p]rior to [ c]losing and as part o f the d ue diligence p rocess.” As such, the trial court f ound that the undisputed term s of the letter of

intent contradicted Gulf

Coast Hospice’s position regarding due diligence. ¶33. Gulf

Coast Hospice f

iled notice of

appeal, 7 raising f

i ve assignm ents of

error: 1. There was suf

f icient evidence to support a jury q uestion that LHC and [ Gulf C oast H ospice] f

orm ed an e nf

orceable contract thr o u gh words, actions[ ,] and perf

orm ance of the parties m anif esting intent to do so,

6 T h e p arties ag ree th at th e claim s f o r co n s p iracy , u n

j u st en rich m en t, an d q u a n t u m m e ru it w ere p ro p erly d i sm issed

. G u lf C o ast H o s p ice d o es n o t r aise th e d i s mi s s a l o f t h e d eclarato ry

j u d g m en t

co u n t as an issu e o n ap p eal.

7 B ecau se L H C ’ s c o u n t erclaim s ag ain s t G u lf C o ast H o sp ice rem a i n p en d in g , th e trial co u rt en tered a f

in al j u d g m en t u n d er M ississip p i R u le o f C iv il P ro ced u re 5 4 (b )

. 1 4even t hough they previously expressed an intent to be bound only by a written agreem ent. A written agreem e n t t o b e b o u n d b y a written agreem ent can b e a me n d e d b y an oral agreem ent[ ] if it satisf ies the statute of f rauds.
2. There was suf

f icient evidence to support a jury question that even i n the absence of a written cont r a c t , L H C is e stopped f r om deny ing the existence of a contract based upon through [ sic ] words, actions, reliance[ ,] and perf

orm ance of

the parties.
3. There was suf

f icient evidence t o support a jury question that LHC m ade intentional a nd/o r negligent m isrepresentations or f raudulent i n d u cem ent f

or which it m ay be liable t o [ Gulf C oast Hospic e ] f o r dam ages. 4. There was s uf

f icient evidence to suppo r t a jury question that LHC breached the letter of

intent and its duty of

good f aith.
5. There was s uf

f icient evidence to s u p port a jury question that LHC tortious[ ly ] interf

e red with contracts of

[ Gulf Coast Hospice].
STANDARD OF REVIEW ¶34. The i nterpretation of a contract is a q uestion of law that the Court reviews de novo . Colem an & Colem an Enters., Inc. v. Waller Fune r al Hom e , 1 06 So. 3d 3 09, 314 (¶ 10) (Miss. 2012). Likewise, t he Court re v i e w s a trial court’s grant o f sum m ary judgm ent de

novo . K i l h u l l e n v. K ansas City S. Ry. , 8 So. 3d 1 68, 174 (¶ 14) (Miss. 2009). Sum m ary judgm ent is appropriate when “the pleadings, depositions, answers to interro g a t o r i es and adm issions on f

ile, together with the af

f idavits, if any , s h ow that there is no genuine issue as
to any m aterial f

act a nd that t he m oving party i s entitled to j udgm ent as a m atter of law.” Miss. R. Civ. P. 56(c). Evidence will be viewed in a light m ost f avorable to the nonm oving party

. Kilhullen , 8 So. 3d at 174-75 (¶ 14).
DISCUSSION

1 5I. Whether a j u r y question ex ists that LHC and Gulf Coast Hospice form ed an

enforceable contract through w ords, actions, and perform ance o f the parties, even though they previously ex pressed an intent to be bound only by a w ritten agreem ent. ¶35. “It is, of course, a basic principle of the law of contracts that a contract is not f orm ed between the pa r t i e s absent the essential elem e nts of of f er, acceptance, and consideration.” Lagniappe Logistics, Inc. v . Buras , 199 So. 3d 675, 677 (¶ 7) (Miss. 2016) ( quoting Whiting

v. Univ. o f S. Miss. , 62 So. 3 d 9 07, 915 (¶ 14) (Miss. 2 011), overruled on other grounds by Springer v. Ausbern Constr. Co., Inc. , 231 So. 3d 980 ( Miss. 2017)). “The elem ents o f a
contract are (1) two or m ore contracting parties, (2) consideration, (3) an agreem e nt that is suf f i ciently def

inite, (4) p arties w ith legal capacity to m a ke a contract, (5) m utual assent, and (6) no legal prohibition p r ecluding contract f orm ation.” GGNSC Batesville, LLC v. Johnson , 109 So. 3d 562, 565 (¶ 6) (Miss. 2 013) ( em phasis om itted) (quoting Adam s Cm ty. Care Ctr., LLC v. Reed , 37 So. 3d 1155, 1158 (¶ 7) (Miss. 2010)). ¶36. “ [ O ] r a l c o n t r a c t s a r e o r d i narily no less enf orceable t han o thers.” Putt v. City o f
Corinth , 579 So. 2d 534, 5 3 8 ( M i s s . 1991). Sim i larly , “ [ a] contract that arises f rom the conduct o f the parties, a lso known as a c ontract i m p lied in f act, has the sam e legal ef

f ect as

an express c ontract.” Franklin v . Franklin ex r e l

. Phillips , 858 So. 2d 110, 120 (¶ 34) (Miss. 2003). W ith respect to “ag r e e me n t s t o enter into f uture contracts” t he Court has explained as f

o llows:
A contract is n ot necessarily lacking in all ef f ect m erely

because it expresses the idea that som e thing is lef t to f uture agreem ent. However, unless a n agreem ent to m ake a f uture contract i s def

inite and c ertain upon all the subjects t o b e em braced, it is n ugatory

. To be enf orceable, a

1 6contract to enter into a f uture contract m

ust spe c i f

y all its m aterial and ess e n t i a l term s and leave none to b e agreed upon as t he result of f uture negotiations. W here a f inal contract f

ails to express som e matter, as, f or instance, a tim e of pay

m e nt, the law m ay im

ply the intention of the parties; but where a p relim i n a r y contract l eaves certain term s t o be agreed upon f or the purpose of a f

inal contract, there c an b e no im p lication o f w hat the parties will agree upon. If any essential term is lef t open t o f

uture consideration, there is no binding contract, and an agreem ent to reach an a g r e e me n t im poses no obligation on the parties thereto.

. . . . It is quite possible f

or parties to m ake an enf

orceable contract binding them to prepare and execute a subsequent docum entary agreem ent. In order that such m ay be the ef

f e ct, it is necessary that agreem e n t shall have b een expressed on all essential term s that are to be incorporated i n the d ocum ent. That docum ent is understood to be a m ere m em orial o f the agreem ent already reached. If the docum ent or c ontract that the parties agree to m ake is t o contain any m a terial term that is not already agreed on, no c ontract has y et bee n ma de; and the so-called contract to m ake a contract is not a contract at all. Etheridge v. Ram zy , 276 So. 2d 451, 452-53 (Miss. 1973) (internal quotation m arks om itted) (citations om itted). ¶37. Gulf Coast Hospice and LHC agree that the letter of intent was “not a binding contract

t o purchase.” The parties also agree that a f inal asset purchase agreem ent was neve r executed and d elivered as contem plated by the letter of intent. Certainly , “m e re agreem ents
to agree are unenf

orceable.” Denbury Onshore, L LC v . Precision Welding, Inc. , 98 So. 3d 449, 453 ( ¶ 1 4) (Miss. 2012) (citing Duke v. Whatley , 580 So. 2d 1267, 1274 (Miss. 1991)). Theref ore, f or purposes of the p resent as s i g n m e n t of error, Gulf Coast H ospice does not contend that the letter of intent constitutes a valid and b inding contract to purchase; rather, it contends that suf

f icient e vidence exists creating a jury question that LHC and Gulf Coast

1 7Hospice h ad f orm ed a binding and enf orceable c ontract through w ords, actions, and perf orm ance beginning with the announcem ent of February 1, 2011. ¶38. Generally , “the judicial r eview and interpretation of a contract involves a three-step analy sis.” Epperson v. SOUTHBank ,, 93 So. 3d 10, 16 (¶ 16) (Miss. 2012) (citing Royer
Hom es of

Miss., Inc. v. Chandeleur Hom es, Inc. , 857 S o. 2d 7 48, 752 (¶ 10) (Miss. 2003)).
In a sum m ary

judgm ent case, however, the Court need not go through the entire three-step analy sis; rather t he Court should determ ine only whether the contract is am biguous. Id. at 17 (¶ 20). Questions of contract construction a nd am biguity are questions o f l aw rather than questions of f

act. Id. If the Court “ f

inds the term s of the contract to be am biguous or subject

to m ore than one i nterpretation, the case m ust be subm itted to the trier of f act, and sum m ary judgm ent is not appropriate.” Id. (citing Royer Hom e s , 857 So. 2d at 752-53). ¶39. W h ile the letter of i ntent is not a n enf orceable contract to purchase , t he term s of the letter of intent are o t herwise enf orceable. Here, t he l etter of intent is plain a n d u nam biguous.
It s tates that the closing of the transaction will b e subject to the s atis f a c t i o n o f m

utually

a g reeable term s and conditions, including the negotiation, e x ecution, and deliver y o f t h e satisf a ctory , d ef

initive asset purchase agreem e nt a nd any other docum ents necessary to

consum m ate the p roposed transaction. I t is u ndisputed that a s a t i s f a c t ory , def

initive asset purchase agreem ent was neve r executed. Accordingly , under the plain and unam biguous

term s of the letter of

intent, no enf

orceable written contract exists. ¶40. Gulf Coast urges that “a written contract can be orally m odif i ed.” Eastline Corp. v. Marion Apartm ents, Ltd. , 5 2 4 So. 2d 582, 584 (Miss. 1988) (citing St. L ouis Fire & Marine

1 8Ins. Co. v. Lewis , 230 So. 2d 580 (Miss. 1970)). The oral modification rule is inapplicable

here because, other than the letter of i ntent, n o prior agreem ent between the parties existed

to be modified

. A s noted above, “[ i]f the docum ent or contract that the parties agree to m ake is to contain any m aterial term that is not already agreed on, no c ontract has y et been m ade; and t he so-called ‘contract to m ake a contract’ is not a contract at all.” E t heridge , 276 So. 2d at 454 (quoting 1A Corbin, Contracts § 29, at 84-85 (1963)). ¶41. G u l f C o a s t me n t i o n s a portion of Harry ’s testim ony in its statem ent o f f a c t s , purporting t o show the exi s t e n c e o f an oral contract. Harry testif ied that on the day of the

announcem ent of

February 1, 2011, an unknown vice president of LHC assured Harry that the “deal was done.” As f ar as Harry

was concerned,
As a businessm an, any

body can understand, wh e n s o me b ody com es to y o ur d o o r a nd they say , the d eal is done, shake h ands to y ou, tell other p eople the deal is done, the deal is d o ne. There’s nothing el s e t o d i s c u ss that m a tters. That’s what they c onvince us. Check over the bank balance. W hat other thing is? The d eal is done. There’s no negotiation. There is no other paper work, except on c losing date, we are going to sign the docum ent and trans f e r the m oney by wire transf

e r. That’s all to it. And it’s a straightf orward deal. ¶42. The Court has written that “[ t]he existence of an oral contract i s a f act issue.” WRH Props., Inc. v. Estate of Johnson , 759 So. 2 d 394, 396 (¶ 12) (Miss. 2000) ( citing Harris v. William s , 43 So. 2d 364, 365 ( Miss. 1949)). Harry ’s unilateral d ecision that the acquisition

was com p lete o n February 1, 2 011, and his claim that nothing rem ained to be negotiated is sim ply not supported by the record. Although Harry testif i ed that due diligence was done,
“as f ar as [ he] kn[ e]w,” the record s h o w s t h a t af ter the announcem ent, LHC’s HR team perf orm ed onsite due diligence by m eeting with prospective em ploy ees and extending of

f er

1 9letters. Thus, the record u n e q u i v o cally shows that due diligence c o ntinued af ter the

a nnouncem ent and acquisition negotiations continued throughout the entire m onth of February and into March. ¶43. W h ile t he potential existence of an oral contract m ight present a f act i ssue, unless the party challenging sum m a ry j udgm ent produces suf f icient evid e nce dem onstrating that a dis p u ted m a terial f

act exists, sum m ary judgm ent rem ains proper. Harry ’s testim ony , in context, does not support a f inding of m

utual ass e n t necessary to the existence of an oral

contract. Rather than em

phasizing Harry ’s testim ony in support o f the assignm e nt of error, Gulf Coast Hospice’s chief position i s that LHC’s c o nduct onsite, beginning w i t h the

announcem ent of February 1, 2011, was “ e v i d e n c e of m utual assent t o close on February 28[ th].” To the extent that Gulf Co a s t H o s p i c e asks the Court to enf o rce an agreem ent to close, the argum ent f

ails as a m a tter of l aw. See D enbury , 98 So. 3d at 453 ( ¶ 14) (holding that m ere agreem ents to agree are unenf orceable). ¶44. In the case sub judice , the letter o f i ntent sets f orth the parties’ m

utual understandings with respect to the basic term s of a proposed acquisition. T he letter of intent provides that parties share a “m

utual i ntent to negotiate a satisf actory def initive asset purchase agreem ent”

as well as “such other docu ments as m ay be necessary to consum m ate the proposed transaction.” The letter of intent unequivocally provided that “[ a] binding com m itm ent with respect to the [ t]ransaction will result only if the [ a]greem ents a re executed and delivered[ ] and are t hen subject only to the term s and conditions contained t herein.” The letter of intent

2 0also generally outlined the course o f conduct expected i n n e g o tiating a satisf actory , def

initive asset purchase agreem ent. The letter of intent did not contain an expiration date. ¶45. “If either party com m unicates an i n t e n t n o t t o b e b o u nd until he achieves a f ully executed docum ent, no am ount of oral agreem ent to specif ic term s will result in t h e f orm ation of a binding c ontract.” Kni g h t v . Sharif , 875 F.2d 516, 5 25 ( 5th Cir. 1989) (internal quotation m arks om itted) (quoting Winston v. Mediafare Entm ’t C orp. , 777 F.2d
7 8 , 8 0 (2d Cir. 1 986)). “The im portance of the parties’ expression o f an int e n t n o t t o b e bound is m anif

est.” Knight , 875 F.2d at 525. “Courts s h o u ld not f rustrate the parties’ expressed intent.” I

d. ¶46. The l etter o f intent unequivocally c om m unic a t e s a n i n t e n t n o t to be bound until a def initive asset purchase agreem ent and such other docum ents necessary to c onsum m ate the proposed transaction were executed and delivered. Harry , who h andled the negotiations f or Gulf C oast Hospice, conf irm ed that “the intention was f or neither Gulf Coast H ospice [ n]or
LHC to be bound by a d ef initive agreem e n t, like a purchase agreem ent, until it was executed.” See K

i n g ’ s Daughters and Sons Circle No. Two of Greenville v. D elta Reg’l
Med. Ctr. , 856 So. 2d 600, 607 (¶ 23) (Miss. Ct. App. 2003). ¶47. In K

ing’s Daughters , Quorum , a national h ospital com p any , sought to acquire King’s Daughters Hospital. Id. at 602-03, 606 (¶¶ 3, 5, 22). The Court of A ppeals, in a ddressing a third party

hospital’s tortious interf

erence claim , wrote, The record ref

lects, through depositions, that Quorum ’s senior vice president and its vice president both adm itted that critical i tem s of the purchase a nd sale of King’s D aughters, such as the purchase p rice, rem ained to be resolved af ter the execution of the letter of intent. Quorum ’s of f icers did not consider the

2 1letter of intent to be a f i nal agreem ent, a n d they believed t hat, u ntil Quorum ’s due d iligence w as com

plete, m aterial t e r m s of the f inal contract (such as the purchase price) were y et to be determ ined. In Quorum ’s view, and consistent with the letter o f intent, there was no a g reem ent until the f i n a l p u r c hase docum ent was executed.
I d . a t 6 0 7 ( ¶ 23). T he Court of Appeals held t hat the letter o f intent between King’s Daughters and Quorum

was a contract to m a k e a contract and not the sort of f i nal contract
necessary to support a tortious interf erence claim

. Id. ¶48. Gulf C o a s t Hospice cites Edwards v. Wurster Oil Co. , 688 So. 2 d 772, 7 75 (Miss. 1997), in support of

its argum ent that a party m ay consent t o an agreem ent t hrough actions showing assent, as well a s through words. In E dwards , the Court wrote that “[ i]t is a wellsettled principle of l aw that ‘acceptance of a contract as b inding upon a party m ay b e shown by his actions, and any def inite and unequivocal course of conduct disclosing t hat the party has acceded or assented t o i t , i s as binding on him a s had he endorsed his assent in f orm al writing[ .]’” Id. (quoting Fanning v. C.I.T. Corp. , 52 So. 41, 43 (Miss. 1939)). ¶49. The p resent case dif f e rs f rom Edwards b ecause no def inite and unequivocal course of conduct exists showing that LHC had assented to a f inal def initive agreem ent. Also, in
Edwards , the Court noted that the c o n d u c t a t issue had occurred “af ter receiving the docum ents showing all of t he term s[ .]” In contrast, no agreem ent in the record here contains all of the term s agreed to by t he parties. Indeed, the alleged conduct constituting acceptance

was perf orm ed while t he parties were in the process of exchangi n g draf t asset purchase
agreem ents.

2 2¶50. In W R H Properties , the C ourt addressed whether individual parties had e ntered into

a b inding settlem e nt a greem ent during a telephone conversation. WRH Props. , 759 So. 2d

at 396 ( ¶ 12). The C ourt reviewed the conversati o n a n d concluded, “Th[ e ] langauge indicate[ d ] t hat Kathy and Rusty m ay have r eached an agreem ent in prin c i p l e , but it was obvious t hat the lawy ers would have to eventually work out the details. Those details were

ne v e r worked o ut.” Id. at 397 (¶ 14). The Court applied t he f ollowing principles in determ ining whether an enf orceable agreem ent had been reached:
W h ether contracting parties are bound by an inf orm al agreem ent prior to the execution of a contem

plated f orm al w riting is a m a t ter of intention to be determ ined by the surrounding f acts and circum stances of each particular case. Certain circum stances have been suggested as helpf ul f o r determ ining such an intention, as, f

or exam ple: (1) whether t he contract is usu a l l y o n e put in writing; (2) whether t here are f ew or ma n y d e t a i ls; (3) whether the am ount involved is large or sm all; (4) whether i t requires a f o r ma l writing f

or a f ull e x p r e s s ion of the covenants and prom ises; and (5) whether the negotiation s them selves indicate that a written draf t is c o ntem

plated a s t he f

inal conclusion of the negotiations.
Id. (internal quotation m a rks om itted) (quoting Mid-Continent Tel. Corp. v. Hom e Tel. Co. , 319 F. Supp. 1176, 1189 (N.D. Miss. 1970)). ¶51. T h e C ourt held that each circum s tance had occurred and reversed the trial c o u r t ’ s judgm ent f

inding t hat an e n f

o r c eable agreem ent had been reached by the parties. WRH Props. , 759 So. 2 d at 3 9 7 ( ¶ 19). The Court explained that i t “can com e to no other conclusion other than [ the parties] intended that their agreem ent in principle b e reduced to writing bef

ore it was binding.” Id. at 397 (¶ 18). ¶52. In the case sub judice , each of the f a ctors m ust b e answered in f

a v o r o f LHC. The draf t asset purchase agreem ents were in writing, the draf ts contained m any details, the initial

2 3proposed purchase p rice w as $1.75 m illion, the letter of intent required a f orm al writing f

or

a f u ll expression of the c ovenants and prom ises, and t he negotiations them selves i ndicate that

a w ritten draf

t w as contem

plated as the f

inal conclusion of the negotiations. See id. The
Court c an com e to n o other conclusion t han LHC a n d Gulf Coast H ospice intended that the purchase agreem ent be reduced to writing bef ore it was binding. See id. ¶53. “Continual redraf

t ing of the specif

ic term s of a proposed agreem ent, as here, is a clear indicator of the im

portance of the provisions and the parties’ intention to b e bound only by the f inal execution and consum m ation o f the agreem ent.” Kn i g h t , 875 F.2d at 5 24 (citing
Winston , 777 F.2d at 82-83)). The United States Court of A p peals f o r t h e F i f t h Circuit

c a u t i o ned against “the potential ty ranny of courts in f

orcing contracts upon parties which t h e y

were not willing to m ake f or them selves.” K

night , 8 75 F.2d at 524. The Fif th C i r cuit warned, Parties t hat wish to b e bound only upon e xecution o f a f orm al docum e nt agree to n e g o t iate in t hat m anner [ i .e. constant redraf ting] because they wish to create a writing that i s satisf actory to both sides in every respect. It is not f or the Court t o determ ine r etrospectively that a t som e point in the evolution of a f orm al docume n t that the changes being discussed becam e so “m inor” or “technical” t hat the contract was binding despite the parties’ u nwillingness to have it e xecuted and delivered. For the court to do so would deprive the parties of their right to enter into only the exact contract they

desired.
Id. at 524 (alteration in original) (quoting Winston , 777 F.2d at 83). ¶54. If “ a prelim inary a greem ent leaves open any m aterial t erm t o be agreed upon in the
f inal contract, ‘there c a n be no i m plication of what the p arties will agree upon.’” Knight , 875 F.2d at 525 ( q

u oting S. Miss. Elec. Power Ass’n v. Delhi Gas Pipeline Corp. , 436 F. Supp. 244, 257 (S.D. Miss. 1977)). Recognizing that the f our page l etter of

intent om itted

2 4a host of m aterial term s to be agreed upon, Gulf Coast Hospice claim s that the unexecuted closing docum ents sent o n January 7, 2011, constitute the term s o f the alleged agreem ent reached b etween the parties. Essentially , G ulf Coast Hospice asks the Cour t t o enf orce unexecuted closing docum ents c ontaining term s and conditions and schedules in excess of

one h u n d r e d pages—docum ents LHC ref used to execute. Gulf C oast Hospice attem pts to justif y t he enf orcem ent of t he closing docum e n ts o f January 7, 2011, arguing that “[ e]xcept f or a m o dif

ication requested by LHC, the m aterial term s never changed.” The m odif ication was the $25,000 bonus to be paid to Rogers. ¶55. “Th[ e] Court has long r ecognized that an a g reem ent m ust be def inite and c ertain in order to be enf

orceable.” Etheridge , 276 So. 2d at 455. The Court has explained, (1) Even though a m anif

estation of i ntention i s i ntended to be under s t o o d as an of f er, it cannot be accepted so as to f orm a contract unless t he term s of the contract are reasonably

certain. (2) The t e r ms o f a contract are r easonably certain if t hey provide a basis f or determ ining the existence of a breach and f

or giving an appropriate rem edy

. (3) The f act that one o r mo r e t e r m s of a proposed bargain are lef t open or uncerta i n m ay show that a m anif estation of intention is not i ntended t o be understood as an of

f er or as an acceptance. Id. at 4 55 (quoting R estatem ent (Second) of Contracts § 32 (Am

. Law Inst., T entative Draf t No. 1, 1964)). ¶56. Here, t he term s of an agreem ent to purchase Gulf Coast Hospice’s operations are not reasonably c ertain. One o r m ore term s of the proposed b argain were l ef t o pen and uncertain, showing that a m anif

estation o f intention was n ot intended to be understood as an of f e r or

as an acceptance. See i

d. T he l etter of intent provides that “[ t]he intention to consum m ate

2 5the transaction” was subject to certain “term s and c onditions.” Perhaps m ost im portantly ,

a f inal purchase agreem ent—a necessary condition f o r consum m ation of the transacti o n

— w a s n e v er executed or delivered in a f inal f o rm . As such, no s atisf

actory contract exists. ¶57. LHC also points to other m a terial conditions in the draf t p urchase agreem ents that had

not been satisf

ied, including the requirem ent that the patient census level b e consistent with the average Medicare census of Gulf Coast Hospice f or the prior t welve m onths. Gulf Coast Hospice conf

irm s the signif

i cance of the m aterial condition, stressing that the patient census is “ a hospic[ e’s] lif

e blood[ .]” Indee d , G u l f Coast Hospice explains that “[ t]he value of a hospice is tied to its patient census,” and “[ a] strong census requires good em ploy ees and a healthy ref

erral n e twork.” Moreover, the d raf t purchase agreem e nt, like paragraph f ive of the letter of intent, requi r e s t h a t L H C be “ reasonably satisf i ed” with the results o f its due diligence investigation. ¶58. W h ile Gulf Coast Hospic e c l a i ms L H C ’ s c o n d u c t f o l l o w i n g t h e a n n o u n c e me n t evidences an agreed upon contract, Gulf Coast Hospice’s own conduct evidences t hat a valid

a n d binding c ontract never existed. G ulf Coast Hospice continued to exchange dr a f t purchase agreem ents t hr o u g h February and into March 2011. The t rial c ourt correctly concluded that “[ t]he draf t asset purchase agreem ent is not an enf orceable contract[ ; i]t was never executed.”
II. Whether a j u r y question ex ists that, even in the absence of a w ritten c ontract, LHC i s estopped from deny ing the ex istence o f a c o n t ract w ith Gulf Coast Hospice based upon w ords, actions, reliance, and perform ance.

2 6¶59. The doctrine of estoppel “is def ined generally as the prin c i p l e b y w h i ch a party is precluded f

r o m d eny ing any m aterial f act, i nduced by his words or conduct upon which a
person relied, whereby the person changed his position in such a way that i njury would be suf f e red if such denial or contrary assertion was allowed.” K oval v. Koval , 576 S o. 2d 134,
137 ( Miss. 1991). “Equitable estoppel .

. . prevents a party f rom em bracing the benef

its of

a contract while s i m

ultaneously try ing t o avoid its burdens. ” C m t y. Bank of Miss. v. Stuckey , 52 So. 3d 1179, 1183 (¶ 25) (Miss. 2010). ¶60. “However, esto p p e l s hould only be used in exceptional circum stances and m ust be based on public policy , f

air dealing, g o o d f

aith, and r easonableness. Powell v. Cam pbell , 912 So. 2 d 978, 982 (¶ 12) (Miss. 2005) (citing PMZ Oil C o. v. Lucroy , 449 So. 2d 201, 206 (Miss. 1984)). “The l aw d oes not regard estoppels with f avor, nor extend them bey ond the requirem ents of the t ransactio n s i n w h i ch t hey originate.” Lucroy , 4 49 So. 2 d at 206 (quoting McLearn v. Hill , 177 N.E. 617, 619 (Mass. 1931)). ¶61. The essential elem ents of equitable estoppel are
C o nduct a nd acts, language or silence, am ounting to a representation or concealm ent of m aterial f acts, with knowledge or im puted knowledge of such f acts, with the intent that r epresentation or silence, or concealm ent b e r e l ied upon, w ith the other party ’ s ignorance of the t rue f acts, and r eliance to his dam age upon the representation or silence.
Rawls Springs U

til. Dist. v. Novak , 765 So. 2d 1288, 1 292 (¶ 12) (Miss. 2 0 0 0 ) ( q u oting Chapm a n v. C

h a p m a n , 4 73 So. 2d 467, 470 (Miss. 1985)). “A party asserting equitable estoppel m

ust show (1) that he has changed his position in reliance upon the c o nduct of another and (2) that he has s uf f ered detrim ent caused by h is change of his position i n reliance

2 7upon such conduct.” Lucroy , 449 So. 2d at 206 (citing B irm ingham v. C onger , 222 So. 2d 388, 3 92-93 ( M i s s . 1969)). “[ I ] t m ust appear that one has been induced by the conduct of another to do som e thing dif f erent f rom what o therwise would have been done, a nd which has resulte d t o h i s h a r m and that the other knew or had reasonable cause to know that such
consequence m ight f

o llow.” I d. ( quoting McLearn , 177 N.E. at 619). ¶62. “ P r o m i s s o r

y estoppel dif

f ers f r o m o r d i n a r y e q u i t a b l e e s t o p p e l i n t h a t t h e representation is prom issory rather than as to an existing f act.” Old E quity Life Ins. Co. v. Jones , 217 So. 2d 648, 652 (Miss. 1969) (citing 31 C.J.S. E s toppel § 80 (1964)). [ A]n estoppel m ay arise f rom the m aking of a prom ise, even though without consideration, if it w as intended that the prom i se should be relied upon and in f act it was r elied upon, a nd if a ref usal to enf

orce it w o u l d b e v i rtually to sanction the perpetuation of f r a ud or would result in other injustice.
C. E. Frazier Constr. Co. v. Cam p bell R oofing & Metal Works, Inc. , 3 73 So. 2d 1036, 1038 (Miss. 1979) (alteration in original) (quoting 28 Am

. J ur. 2 d E s t o ppel and W

aiver , at 548 (1966)). ¶63. Mississippi law recognizes that the doctrine of prom issory estoppel does not prevent

a party who has m ade a representation f rom changing his intention in the f u ture when, a s here, the p arty considers inf orm ation acquired af

ter t he representation. See e.g. , S uddith v. Univ. of S. Miss. , 977 So. 2d 1158, 1181 ( ¶ 5 4 ) ( M i s s . Ct. App. 2007) (quoting Cook v. F a r l e y , 15 So. 2d 352, 357 ( Miss. 1943)). In Suddith , t he Court o f Appeals held t h a t D r . Auberey L u cas was not estopped f rom considering af

ter a cquired inf

o rm ation about John Suddith’s af

f air with a student when Dr. Lucas had originally intended t o recom m end Suddith f or a tenure-track position.

2 8¶64. Gulf Coast Hospice’s estoppel claim , whether equitable o r prom issory , is barred by the express term s of the l etter of intent. The l e t t e r o f intent sets out the m utual understandings of the p arties. Alt h o u g h t he letter of intent does not enum erate each and
every specif

ic action that m ight be perf orm ed as part of the due d iligence process, the broad and unam biguous language allowed L HC to assess staf f ing levels; to identif

y e m ploy ees LHC wanted to retain af

ter clos i n g ; to review Gulf Coast Hospice’s operations, business, assets, liabilities, f

i n a ncial c ondition, properties, books, a n d records; to m ake public

announcem ents; a nd to conduct any other satisf actory due d iligence “as m ay be r easonable and custom a ry in acquisition a greem ents” bef ore closing. The letter of intent allowed LHC

to perf orm tasks that were required to e nsure t h at no lapse in service would occur upon a change in ownership. Gulf Coast Hospice and LHC a g reed t hat “ [ e ]ach party bear its own
expenses a rising out of this letter and the Transaction, w ith no liability f or such expenses to
any other party , whether or not the Transaction or any part thereof

shall close.” ¶65. The f

acts presented in t he present case d o not contain exceptional c ircum s tances that would n ecessitate the application of the estoppel doctrine. T he parties expressly agreed that

a condition of closing would be subject to t h e n e g o tiation, e xecution, and delivery of a satisf a ct o r y , d ef

initive asset p urchase agreem ent and s u ch other docum ents necessary to

consum m ate the proposed transaction.
III. Whether a jury q uestion ex ists a bout intentional m isrepresentations, fraudulent inducem ent, or negligent m isrepresentations. ¶66. Gulf Coast Hospice contends that suf f icient evidence supported t he existence of a jury question that LHC m ade intentional m isrepresentations, f r audulent inducem e n t s, or,

2 9alternatively , negligent m i sr e p r e sentations. Stated dif f erently , Gulf Coast Hospice claim s that LHC c onvey ed its intent to close a nd induced Gulf Coast H ospice to rely to its detrim ent; “[ a]ll the w hile, it secretly harbor[ ed] the position that i t could r epudiate the t ransaction on the closing date based on dam age it caused to the hospice.”
A. F r a u d , I n t e n t i o n a l M i s r e p resentation, and Fraudulent Inducem e n t ¶67. To prove f

raud, a plaintif

f m ust prove by

clear and convincing evidence: 1) a representation; 2 ) its f a lsity ; 3) its m ateriality ; 4) the speaker’s knowledge of i ts f alsity or ignorance of its truth; 5) his intent that it should b e acted upon by the p e r s o n and in the m anner reasonably contem plated; 6) t he hearer’s ignorance of i ts f

alsity ; 7) his reliance on its truth; 8) his right to rely thereon; and 9) his consequent and proxim ate injury

. Levens v. Cam

pbell , 733 So. 2d 753, 761-62 (¶ 35) (Miss. 1999) (citing Martin v. W infield , 455 So. 2d 762, 764 (Miss. 1984)). “In order to establish f raudulent m isrepresentation, the elem ents of f

raud m ust be p roven.” Id. at 762 ( ¶ 35) (citing Spragins v. Sunburst B ank , 605 So. 2d 777, 780 (Miss. 1992)). ¶68. Gulf C o a s t H o s p i c e c o n t e n d s t h a t , b e g i n n i n g w i t h t h e F e bruary 1, 2001,

announcem ent, LHC represented to Gulf Coast Hospice, including its m e m bers and

em ploy e es, that it was acquiring Gulf Coast Hospice ef f ective March 1, 2011. Gulf Coast Hospice contends t h a t L H C’s continued investigation of whether to acquire Gulf Coast Hospice renders its representations f alse. ¶69. “Th[ e] Court has m a de it clear that even in cases w here f raud is alleged, a prom ise of
f uture conduct d oes not m eet the requirem ent of a ‘representation’ unless the prom ise was

m ade with t h e p r e s e n t intent not t o perf orm [

. ]” B ank of Shaw v. Posey , 573 So. 2d 1355,

3 01360 (Miss. 1990) (citing M cMullan v

. Geosouthern Energy Corp. , 556 So. 2d 1033, 1037 (Miss. 1990)). ¶70. At the tim e of the announcem ent, i t is undisputed that LHC i ntended to acquire Gulf
Coast Hospice. Put sim ply , no evidence e xists suggesti n g that LHC did not intend to

com plete the transaction at the t i m e o f t h e announcem ent. Even when em ploy e es becam e disgruntled with proposed com p ensation changes, LHC rem ained com m itted to n egotiating a satisf a ctory transaction. ¶71. On Friday , F ebruary 25, 2011, L HC learned t hat Rogers a n d mo s t o f G ulf Coast
H o s p i c e ’ s em

ploy ees w ere planning t o walk out and take their patients with them on t h e scheduled ef

f ective date of the acquisition, March 1, 2 011

. I n l i g h t o f the newly acquired
inf orm ation, L HC decided not to close the transaction with Gulf Coast Hospice on Monday , February 28 , 2011. Although LHC ref used to close, LHC attem pted to salvage the transaction bey ond the initially scheduled closing date

. In light o f t he new developm ents concerning Rogers a nd other staf f , LHC sought to protect the asset it planned to p urchase by incorporating a noncom

petition agreem ent t o b e s i g n ed by Rogers. Rogers r ef used, and negotiations ultim ately ended. Gulf Coast Hospice f

ails to present suf

f icient evidence that
LHC m a de a representation with present intent not to perf orm . ¶72. Gulf Coast Hospice’s f raudulent i nducem ent claim likewise f ails. “Generally , f

raud in the inducem ent ‘arises when a party to a contract m akes a f

raudulent m i srepresentation, i.e., by asserting inf

orm ation he knows to be untrue, f or the p urpose of i nducing the innocent party to enter into a contract.’” V i rginia Coll., L LC v. Blackm on , 109 So. 3d 1050, 1053 (¶

3 110) (Miss. 2013) (quoting Lacy v . Morrison , 906 So. 2 d 1 2 6 , 1 2 9 ( ¶ 6) (Miss. Ct. App. 2004)). Not only did Gulf Coast Hospice f ail to show a f

raudulent m isrepresentation, LHC did not induce Gulf Coast H ospice to enter into a contract. As discussed above, n o binding and enf orceable contract to purchase exists.
B. Negligent Misrepresentation ¶73. To show negligent m isrepresentation, the f ollowing elem ents m

ust be proved: (1) a m isrepresentation o r om issio n o f a f act; (2) that the representation or om ission is m aterial or signif icant; (3) that the p erson/entity charged with the negligence f

ailed to exercise that degree of diligence a nd expertise the p ublic is entitled to expect of such persons/ e n t ities; (4) that the plaintif f reasonably r e l ied upon t he m isrepresentation or om ission; and (5) t hat t he plaintif f suf f ered dam ages as a direct and proxim ate result of such reasonable r eliance.
Horace Mann L ife Ins. Co. v . Nunaley , 960 So. 2d 455, 461 ( ¶ 20) (Miss. 2007) ( c i t i ng Skrm etta v. Bayview Y

acht Club, Inc. , 806 So. 2d 1120, 1124 (Miss. 2002)). ¶74. Again, “the f

irst e lem ent of negligent m isrepresentation, m i srepresentation of a f act,

m ust c oncern a past or present f act as contraste d with a prom ise of f u ture conduct.” Spragins v. Sunburst Bank , 605 So. 2d 777, 780 ( em phasis om i tted) (citing B ank of Shaw , 573 So. 2 d at 1360). Gulf Coast Hospice f ails to show t hat LHC m ade a representation with the present intent not t o perf o rm . See Posey , 573 So. 2d at 136 0 ( h o l d i n g that “a f uture
prom i s e d o e s n o t qualif y a s an existing m aterial f act under the elem ents of negligent

m isrepresentation.” (citing Margrove Inc. v. Lincoln First Bank of Rochester , 54 A.D. 2d
1105 (N.Y. App. Div. 1 976))). LHC’s statem ent that i t intended to acquire Gulf Coast and that it rem ained com m i tted to the acquisit i o n d o es not constitute an existing m aterial f act.

3 2Put s im

ply , LHC’s f

uture prom ise was a p rom ise to negotiate a s atisf actory def initive asset purchase agreem ent. LHC did so even af ter it discovering the planned staf f walkout.
IV. Whether a j ury question ex ists about w h ether LHC breached the l etter of intent and duty of good faith. ¶75. Gulf Coast Hospice argues that suf f icient evidence exists supporting a j ury question about whether L HC b reached the letter of intent a nd its duty of g ood f aith and f air dealing.

A. Breach of the letter of intent ¶76. Gulf Coast Hospice cla i ms t h a t , w h ile it perm itted LHC to conduct due diligence,
LHC’s c onduct beginning with the announcem ent o f February 1, 2011, was not authorized by the letter of intent. Gulf Coast Hospice does not d irect the Court’s attention to any portion of the letter of intent that was a llegedly breached. Gulf Coast Hospice s im ply m akes a bald assertion that LHC’s conduct begin n i ng with the announcem ent o f February 1, 2011, constituted a breach of

the letter of

intent. ¶77. “A breach-of

-contract case has two elem ents: ( 1) ‘the existence o f a valid and binding contract,’ and (2) a showing ‘that the def endant has broken, or breached it.’”
M a n e s s v . K & A Enterprises of Miss., L LC , 250 So. 3d 402, 414 (¶ 43) (Miss. 2018) (quoting Bus. Com m c’ns, I nc. v. Banks , 90 So. 3d 1 221, 1224–25 (¶ 10 ) ( Miss. 2012)).
W h ile it is undisputed that the l etter of intent was not a val i d and binding contract to purchase , the letter of intent s et f orth the m

utual understandings with r espect to the basic

term s of the proposed acquisition. The letter of intent provided that the m utual intent of the

3 3parties was to negotiate a satisf actory def

i nitive asset p u r c h a s e a greem ent and any other docum ents necessary

to consum m ate the proposed transaction. ¶78. The letter of

intent contained a provision regarding public announcem ents: Public Announcem ents

. Subject to requirem ents of law, L HC[ ] , [ Gulf Coast Hospice,] and any of their respective af f iliates, agents or em

ploy ees shall not issue any news releases or other announcem ents p ertaining t o this letter or the transactions contem

pl a t e d h e rein prior to the Closing without the consent of the non-disclosing party , such consent not to be unreasonably withheld. ¶79. H a r r y ’ s t e s t i m o n y b e l i e s G u l f C o a s t H o s pice’s a ssertion that LHC’s o n s i t e

announcem ent was n o t p erm itted, because he testif ied t hat he c o nsented to the

announcem ent. Moreover, nothing in the record supports Gulf Coast Hospice’s claim

that
LHC’s activities onsite f

ollowing the announcem ent w ere unauthorized. N ot only were the activities a

uthorized, the activities were c ontem plated and were set f

o rth within the letter of intent. ¶80. Gulf Coast Hospice executed the l e t t e r o f i n t e n t , a ccepting a nd agreeing to the conduct, including: ( 1 ) a pre-clo s i n g a ssessm ent of staf f ing levels and the transitioning of

e mp l oy ees to LHC; (2) the satisf a ctory com

pletion of due diligence of all aspects o f G u l f
Coast Hospice; (3) t he negotiation, execution, and delivery of agreem ents necessary to

consum m ate the transaction, s uch as a purchase agreem ent, m edical director c ontracts, and

v endor contracts; a nd (4) the receipt of necessary consents and approvals f rom th e
governm ent and third parties. Because LHC acted with Gulf Coast Hospice’s consent and
in accordance with the term s of t he letter of intent, Gulf Coast Hospice’s breach of contract claim f ails.

3 4B. Breach of the duty of good faith and fair dealing

¶81. The Court has held that “[ a]ll contracts contain a n im plied covenant of good f

aith and
f air dealing i n p e r f

o r ma nce and enf

orcem ent.” Cenac v. Murry , 609 So. 2d 1257, 1272 (Miss. 1992) (citing Morris v. Macione , 546 So. 2d 969, 971 (Miss. 1989)). “The duty of good f aith and f air dealing arises f

rom the existence of

a contract between parties[ .]” Am . Banker s ’ I n s. Co. o f Fla. v. Wells , 819 So. 2d 1196, 1207 ( ¶ 35) (Miss. 2001) (em phasis

om itted) (citing Cenac , 609 So. 2d at 1272). ¶82. T h e d u t y is based u pon f undam ental notions of f

airness and i t s s c o p e n e c e s s a r i l y varies according t o t he nature o f the agreem e nt. Cenac , 609 S o. 2d at 1 273. “Good f aith is the f aithf ulness of an a greed purpose between two parties, a purpose which is consistent with justif i ed expectations of t h e o t h e r p a r t y .” Id. Bad f aith “requires a showing of m ore than bad judgm ent or negligence; rather, [ it] im p lies som e conscious wrongdoing ‘becau s e of dishonest purpose or m oral obliquity .’” Univ. of S. Miss. v. William s , 891 So. 2d 160, 170-
71 (¶ 24) (Miss. 2004) (q u o t i ng Bailey v. Bailey , 724 S o. 2d 335, 338 ( ¶ 9 ) (Miss. 1998)). ¶83. Because n o binding a nd enf orceable contract to purchase e xists, Gulf Coast Hospice’s claim of breach o f g o o d f a i t h and f air dealing with respect t o an agreem ent t o purchase is necessarily w ithout m erit. See Wells , 819 So. 2 d at 1207 (¶¶ 35-37) (holding t hat evidence of unf air and inequitable c o n d u c t i s i n suf f icient to s upport recovery when a l ack of any contractual relationship exists). ¶84. Essentially , Gulf Coast Hospice f ram es its b ad f

ait h c laim w i th respect to the letter of i ntent a s a claim f

o r i ntentional and f

raudulent m isre p r e s e ntation. As discussed above,

3 5Gulf Coast Hospice’s m isrepresentation claim s are without m erit. Notwithstanding Gulf

C o a st Hospice r epetitive argum ent, no b reach of i m plied covenant of good f aith a n d f a i r dealing with respect to the letter of intent exists. Again, LHC’s actions, beginning with the

announcem ent, were contem plated and authorized by G ulf Coast Hospice. A party has not breached the im

plied c ovenant of good f

aith a nd f air dealing when the party o nly took actions duly authorized by contract. See Lim bert v . M iss. Univ. for Wom en Alum nae Ass’n, Inc. , 998 S o. 2d 993, 999 (¶ 14) (Miss. 2008) (holding that a party to a contract “could not have acted in bad f

aith when she exercised a contractual right”). ¶85. Gulf Coast Hospice f a ils to present suf

f icient evidence dem onstrating a j ury question that LHC acted i n bad f

a ith by exercising its right to ref use to close the transaction under the letter of intent.
V. Whether a j ury question ex ists t h at LHC tortiously interfered w ith contracts of Gulf Coast Hospice. ¶86. Gulf Coast Hospice argues that suf f i cient evidence existed to create a jury question that LHC tortiously interf ered with Gulf Coast Hospice’s contracts and b usin e ss relations.
A. Tortious interference w ith contracts ¶87. G u l f C o a s t H o s p i c e does not dif f erentiate between the alleged torts, b ut tortious interf erence with the perf

orm ance of a co n t r a c t d if f ers f r om tortious interf

erence with business relations. S

e e C enac , 609 So. 2d a t 1268. T he Court def ined the tort of wrongf

ul interf erence as f

ollows:
An action f

or interf erence with contract will o r d i narily lie when a def endant m aliciously

interf eres with a valid a nd enf

orceable contract, thereby causing one party not to perf

orm a nd resulting in i njury to the other contracting party

.

3 6Malice in this cont e x t is the intentional doing o f a harm f ul act without j u s tif ication or excuse, or stated dif f e rently , the wilf

ul violation of a k n o w n right.
Cenac , 609 So. 2 d at 1 268 (quoting Mid-Continent Tel. Corp. , 3 19 F

. Supp. at 1199-1200). ¶88. To establish a claim f or tortio u s i nterf

erence with a c ontract, a party m ust show (1) “that the acts were i ntentional and willf ul;” (2) “ that they were calculated to cause dam age
to the plaintif

f s in their lawf

u l business;” (3) “that they were done with the unlawf ul purpose of c ausing dam a ge a n d loss, without right or j ustif iable cause on the part of the def endant (which constitutes m alice); and” (4) “that actual dam age a nd l oss resulted.” Cenac , 609 So. 2d at 1268-69 (quoting Liston v. Hom e Ins. Co. , 6 59 F. Supp. 276, 281 (S.D. Miss. 1986)).
“It m ust also be proven that the contrac t w o u l d h a v e been perf o rm ed but f

or the alleged interf erence.” Levens v. Cam

pbell , 733 So. 2d 7 5 3 , 7 6 1 ( ¶ 2 7) (Miss. 1 999) (citing Par Indus., Inc. v. Target Container Co. , 708 So. 2d 44, 48 (Miss. 1998)). ¶89. I n o rder to pursue a cause of a ction f o r tortious interf

erence with a contr a c t , “ i t i s accepted that the wrongdoer is a ‘ stranger’ to the cont r a c t w h i c h was interf ered with—an outsider.” Cenac , 609 So. 2d at 1269. Theref ore, “[ a] party to a c ontract cannot be charged with interf

ering with his o wn contract.” Id. (quoting Knight , 875 F.2d at 526). To the extent that Gulf Coast Hospice claim s that LHC interf ered with the c onsum m ation of its own
contract to purchase G ulf Coast Hospice, the c laim is without m erit because LHC cannot be charged with interf

ering with its own contract. See id. ¶90. The Court has held that a c l a i m f o r t o r t i o u s i n t e r f

e rence w ith at-will contracts of

em ploy m ent are viable. Levens , 733 So. 2d a t 7 60–61 (¶ 27) (Miss. 1999). “[ T]he

3 7interf

erence com

p lained of m

ust be w rongf

u l in order to be a c t i o n a b l e a nd

. . . any i n t e r f erence is not w rongf

ul and actionable if undertaken by s om eone in the exer c i s e o f legitim ate interest or right, which c onstitutes ‘privileged interf erence.’” V

estal v. O den , 500
So. 2d 9 54, 957 (Miss. 1986) ( quoting Irby v. Citizens Nat’l Bank of Meridian , 121 So. 2d
11 8 , 1 1 9 ( M i s s. 1960)). “[ E]ven if a party interf eres w i th the f

orm ation or execution of a

c o n t ract, if he has legitim ate interest therein or a contractual right to perf orm said a c t i t i s privileged and thus not wrongf ul and actionable.” Id. at 957 (em phasis om itted). ¶91. A s s u

m i n g e n forceable em

ploy m ent contracts existed b etwe e n G u l f C o a s t H o s p i c e a n d its em ploy ees, LHC’s conduct is n ot actionable because LHC had a legitim ate interest in the continued em

ploy m ent of certain em

ploy ees of Gulf Co a st Hospice so that hospice operations would continue without disruption on the scheduled ef f ective date. The letter of intent provides a provision regarding em p loy ees: Em ploy ees
. Prior to Closing and as part of t he due diligence process, LHC[ ] will assess the staf

f ing l evels needed by [ LHC] f o llowing the Closing and identif y f or [ Gulf Coast H ospice] those e m ploy ees that LHC[ ] wishes to h ire. [ Gulf Coast Hospice] will assist LHC[ ] in negotiating with and transitioning those em ploy ees to the em

p loy m ent of LHC[ ] f

or the provision of services to [ LHC]. [ Gulf Coast Hospice] will retain all l iabilities r elating to em ploy m ent related m atters w hich relate to operation of the Busine s s p r i or t o Closing or which relate to the consum m ation of the Transaction. ¶92. Pursuant to the letter o f intent, G u l f C o a s t H o s p i ce agreed to allow L HC to assess staf f ing levels a nd to issue of

f er letters as p art o f t h e d u e diligence process. According to Harry , n o Gulf Coast Em p loy ee was termi n a t e d a t t h e direction of LHC. Harry instructed Rogers not to term inate any one “until [ LHC] ha[ d] t aken over.” Harry conf irm ed that he

3 8understood that Gulf Coast H ospice would retain a ll liabi l i t ies related to the em ploy m ent related m atters. ¶93. Certainly , LHC had a legitim ate interest in Rogers’ continued em ploy m ent with LHC. The record dem onstrates that Rogers was the m ost valuable em ploy ee to G ulf Coast Hospice and t hat she had been instrum e nt a l i n i t s rapid g rowth. Rogers did n ot shy away f rom proclaim ing her success to LHC representatives. W hen L HC disco v e r e d that Rogers and other disgruntled e m

p loy ees planned to walk out af ter the acquisition had closed, LHC had

a l egitim ate interest in ref using to close the transaction, because the hospice operations had dram atically

changed f

rom the operations LHC had intended to acquire. ¶94. Even af

ter the planned walkout was d i s c o v e r e d , L H C a t t e mp t e d t o p r e s e r v e the transaction by ensuring that Rogers would be subject to a noncom petition agreem ent, undoubtedly a legitim ate business concern in the industry

. G ulf Coast Hospice conf irm s the
im p ortance of em

ploy ees, their relationships to patient s , and potential com p etition. Gulf
Coat Hospice explains that “[ p]atients of ten choose t o f

ollow t heir care givers.” Gulf Coast Hospice r epresents that the “phenom enon is w ell-understood i n the industry .” Like LHC’s legitim ate interest in Gulf C oast em ploy ees, LHC possessed a legitim ate interest in the

contracts between Gulf C oast Hospice and its m edical directors. L H C e x plained that an executed c ontract with a m edical director is a requirem ent f or h ospice operations. As such,
any alleged interf

erence with the m edical directors’ c ontracts w as privileged, and thus, was
not wrongf

u l or actionable. Gulf C o a s t Hospice f ails to present suf

f icient evidence dem onstrating a jury

issue.

3 9B. Tortious interference w ith business relations

¶95. Although tortious interf erence with c o ntracts claim s dif f er f rom tortious interf

erence with b usiness r elations claim s, Gulf Coast Hospice does not distinguish nor does it attem pt
to elaborate on its bare claim that LHC “interf e r ed w ith contracts and business r elationships.”
I n c o n t rast to tortious interf

erence with contracts, t ortious interf erence wi t h b u s i n e s s r e l a t i o n s “exist s w h e r e o ne engages in som e act with a m a l icious intent t o interf ere and injure the b u s iness of another, and the injury does in f a ct result.” Cenac , 609 So. 2d at 1271. “ T h e

rem edy f or the tort is dam ages, and the plaintif f m ust a l so show (1) a loss, a nd (2) that the def endant’s conduct cause d the loss.” Id. (quoting W

. Page Keeton et al., Prosser and Keeton on the Law of

Torts § 130, at 1005-14 (5th ed. 1984)). ¶96. G u l f C o a s t Hospice’s argum ent u nder the present assignm e nt of error is enti r e l y f ocused on tortious interf

ere nce with contracts. Notwithstanding, Gulf Coast Hospice has
f ailed t o present suf

f icient evidence showin g t h a t L H C acted with m alicious intent to interf ere and i njure its business. Each of LHC’s actions with respect to preparing Gulf Coast
H o spice f

or the a cquisition on the s cheduled ef f ective date was done w ith a l e g i t i ma t e
purpose. See Progressive Cas. Ins. Co. v. All Care, Inc. , 914 So. 2d 214, 219 (¶ 7) (Miss.
Ct. A pp. 2005) (“[ C]onduct related to a legitim ate, em ploy m ent-related objective c onstitutes justif i able acts, which cannot ‘give rise to an inf erence of m alice.’” (citing Hopewell Enters.,
Inc. v. Trustm ark , 680 So. 2d 812, 818-19 (Miss. 1996)). ¶97. W e discer n no m a lice f rom LHC’s conduct, b ecause LHC f u lly intended to acquire Gulf Coast H ospice until it learned o f t h e p lanned walkout and, even then, it attem pted to

4 0salvage the transaction b y continuing t o negotiate. Gulf C o a s t H o s p i ce f ailed to present suf f i cient e v i d e n ce dem o n strating a jury i ssue in support of its tortious interf erence with business relations claim

. CONCLUSION ¶98. For the reasons explained above, the Court af f irm s the trial court’s judgm e nt. ¶99. AFFIRMED. RANDOLPH, C.J., MAX W ELL, BEAM, CHAMBERLIN AND ISHEE, JJ., C O N C U R . K

I N G , P . J . , D I S S E N T S W I T H S E P A R A TE WR I T T E N O P I N I O N J O I N E D BY KITCHENS, P.J. GRIFFIS, J., NOT PARTICIPATING. KING, PRESIDING JUSTICE, DISSENTING: ¶100. Becau s e I w o u l d f i n d that suf

f icient e vidence e xisted to s upport a jury question regarding whether Louisiana Hospice Corpora tion ( LHC) and G ulf Coast Hospice f orm ed

an enf o rceable contract through words, actions, and perf orm ance of the parties, I respectf ully dissent. ¶101. This Court reviews t he g r ant or denial of a m otion f or sum m ary judgm ent de novo and views the evidence “in the light m ost f avorable to t he p arty opposing the m otion.” Estate of
Hudson v. Y

azoo City, Miss. , 246 So. 3d 872, 876 (Miss. 2018) ( citi n g City of M agee v. Jones , 161 So. 3d 1047, 1049 (Miss. 2015)). Sum m a ry judgm ent i s appropriate only “if the pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af f idavits, if any , show that t here is no genuine issue as to any m aterial f act

. . . .” M.R.C.P. 56(c).

4 1¶102. Gulf Coast Hospice asserted that it is entitled to relief under t he doctrines of equitable estoppel, prom issory e stoppel, and detrim ental reliance

. “ A p a r t y a s s e r t i n g e quitable estoppel

m ust show (1) that he h as changed his position in reliance upon t he conduct of another and (2) that he has suf

f ered detrim ent caused by his change of his position in reliance upon such conduct.” PMZ Oil Co. v. Lucroy , 449 So. 2d 201, 206 (Miss. 1 9 8 4 ) ( citing Birm ingham

v. Conger , 222 So.2d 388, 392–3 9 3 (Miss. 1 969). E q uitable estoppel “has its roots in the

m orals and ethics of

our society .” Id. ¶103. I would f

ind that Gulf Coast Hospice presented suf f ic i e n t e v i d e n c e t o c r e a t e a question of f

act regarding whether LHC’s conduct induced Gulf Coast Hospice to change its position and whether Gulf Coast Hospice suf f ered detrim ent in reliance upon t hat conduct. The record shows that in Decem ber 2010, LHC and Gulf Coast Hospice executed a Lette r of Intent (LOI) in which LHC stated it intended to pay $1,750,000 f or the acquisition of Gulf
Coast Hospice. T h e c losing was set to occur on February 28, 2011, with a target ef f ective date of March 1, 2011. ¶104. On January 7 , 2 0 1 1 , L H C s e n t G ulf Coast Hospice the proposed Asset Purchase Agreem ent, which contained the term s of the agreem ent reached by the parties. Outside of the addition of a bonus f or Linda Rogers, t he docum ents ref lected t h e a greem ent of the parties, subject to the com p letion of due diligence by LHC. The sam e day , L HC also sent a

c h ange-of

-ownership notif

ication to the M ississippi S tate D epartm ent of Health’s H e a l t h Facilities, Licensure, a nd C e r t i f i c a t ion Division, stating i t was a “f orm al notif

ication that ef f ective March 1, 2011, [ LHC] will be purchasing” Gulf Coast Hospice.

4 2¶105. O n February 1, 2011, L H C’s head m anagers announced to the staf f of Gulf C o a s t Hospice that LHC i ntended to acquire G ulf C oast Hospice on M arch 1. LHC began discussing with Gulf Coast H ospice staf f m e m bers which em

ploy ees w ould be retained and which em

ploy ees w ould be f

i red. LHC ran bac k g r o u n d c hecks on the em ploy ees and discuss e d w hich em

ploy ees would have reduced salaries a nd m ileage cuts and which

em ploy e es would have to b e drop p ed down to part-tim e hours. As a r esult, the m ajority of Gulf Coast Hospice’s em

ploy ees resigned. Rogers stated that she advised L HC not to adjust the em ploy ees’ pay scales, because the em ploy ees had been l oy al with their current salaries. ¶106. Moreover, af

ter the announcem ent, LHC gained access to and copied patient charts.
LHC replaced Gulf Coast H ospice’s telephone s y stem and changed its telephone providers.
LHC r eplaced t he com

puters, had new com

p uter sy s tem s installed, and took over the

com puter network. LHC hooked the c om puters up t o t heir nationwide network sy stem , set
up em ail accounts f

or all of the e m

ploy ees, and issued nam e tags to the em p l oy ees. LHC contacted Medline, a m edical products distributor, a nd changed the contract to LHC’s nam e. Additionally , LHC changed the pest control contract, scheduled the utility services to change

on March 1, installed photocopiers and f ax ma c h i nes, a nd changed the phone n um bers to switch to LHC ownership. LHC even c hanged the wiring in the building. Harry D esai stated that LHC already

had begun acting as if

it had bought Gulf

Coast Hospice. ¶107. O n F e b r u a ry 21, 2011, LHC sent an em a il to Gulf Coast Hospi c e s t a t i n g , “ [ i ] n anticipation of next week’s closing of the transaction, please f ind attached the W ire Transf er Request Form and the Seller’s W -9 Form .” Gulf Coast Hospice com pleted and returned the

4 3f

orm s to LHC. On February 22, six day s b ef ore the closing, LHC sent a draf t of the closing

statem ent f

or the purchase of Gulf Coast Hospice. The closing statem ent ref lected the f

inal purchase p rice of $1,775,000 and stated that $88,750 was being held i n escrow. The next day , LHC sent the revised A sset P urchase Agreem ent that contained all of the term s of sale previously

agreed to. ¶108. Despite LHC’s ongoing actions, LHC ultim ately ref used to c lose the deal. As a result, although the agreed purchase price with LHC was $1,775,000, f ive m onths later, Gulf Coast Hospice was sold f

or only $500,000 to another purchaser. ¶109. “ I n t h e i n t e r e s t o f justice, if , f rom the whole p leading, it can be seen that there i s substance to the suit, and there is revealed e n ough to show equitable m erits, the Court will
go f ar towards entertaining the bill.” C. E. Frazier Constr. Co. v . Cam pbell Ro o f ing &
Metal Works, Inc. , 373 So. 2d 1036, 1038 (Miss. 1 979) ( quoting Dantone v. Dantone , 205 Miss. 420, 38 So. 2d 908, 911 (Miss. 1949)). Here, genuine i ssues o f m a terial f act exist as

to whether L HC’s conduct caused Gulf Coast H ospice to change its position in reliance on that conduct an d w hether that conduct caused Gulf Coast Hospice to suf f er detrim ent. Theref ore, I would f

ind that sum m ary

judgm ent was inappropriate. ¶110. The m ajority cites King’s D aughters & Sons Circle No. Two of Greenville v. Delta Reg’l Med. Ct

r. , 856 So. 2 d 600, 607 (Miss. Ct. App. 2003), and its holding that the letter of intent in that case was a contract to m ake a contract a n d was n ot a f inal contract. However, King’s Daughters involved a tortious interf erence claim , not a claim of estoppel. In addition,
in that case, a c ritical f

a ctor in determ ining that a c o n t r act had n ot existed was that the

4 4purchase price h ad not been determ ined. I n this case the parties had determ ined t he purchase

price to be $1,775,000. Further, no evidence existed in that case that a party had a l l but taken

over King’s Daughters hospital or that the conduct of a p a r t y h a d c a used the m ajority of King’s Daughters’ em

p loy ees to resign. ¶111. The m ajority additionally cites Knight v. Sharif , 875 F.2d 516 (5th Cir. 1 989), a case involving two letters of intent f or the s ale of com m o n s t ock. In t hat case, “[ a]f ter num erous ef f orts by the parties to negotiate a def initive agreem ent f

or the sale of t he G AF stock, the

. . . deadline expired without such an agreem e nt f o r the sale of the stock having bee n executed by the p arties.” Id. at 518. This Court held that the letters o f intent d id not c onstitute an enf orceable contract f

or the sale of

the stock. Id. ¶112. However, t he instant case involves m uch m ore than the f

ailed purchase o f com m on stock. Gulf C oast H ospice presented evidence t hat LHC a l l but took over Gulf Coast Hospice af ter signing the letter o f i ntent and created unrest w ithin the b usiness. LHC announced to Gulf Coast Hos p i c e ’ s em ploy ees, which m anagem ent stated had been essential to the perf orm ance of the business, that LHC intended to acquire Gulf Coast Hospice. LHC then changed t he hours, p a y scales, and benef its of the em

ploy ees, e f

f ective March 1. LHC acknowledged that its c onduct h a d c r e a t e d unrest with the e m ploy ees, y et it e m ailed Gulf
Coast Hospice that LHC “ rem ain[ ed] com m itted to” Gulf Coast Hospice, its m anagem ent, and its staf

f .” As a result of LHC’s changes, the m a j ority o f Gulf Coast H ospice’s e m ploy ees resigned. M o reover, while Gulf C oast Hospice’s em p loy ees were resigning, LHC continued

to m ake m aterial changes t o G ulf Coast Hospice’s com puter sy s tem s, a c counts, and utility

4 5services. Then, af ter L HC’s c hanges caused G ulf Coast Hospice’s em ploy ees to resign, LHC ref used to close the transaction. As a result, instead of the price of $1,775,000, which LHC had of f ered, Gulf Coast H ospice sold f or $500,000 f

i v e mo n t h s l ater, a dif

f erence of $1,275,000. In toto , Gulf Coast H ospice present e d satisf actory evidence to create a jury questions about w hether LHC’s actions, words, and perf orm ance consum m ated the contract and about whether the contract s h o u ld be enf orced through t he doctrine of estoppel. As a result, sum m ary

judgm ent was inappropriate. I would f ind that a jury should determ ine the

outcom e of

the case. ¶113. Viewing the evidence in the light m ost f avorable to Gulf Coast Hospice, I would f ind that Gulf Coast Hospice presented suf f icient evidence of the existence o f genuine issues of

m aterial f act and would rem and this case f or a trial on the m e rits. Accordingly , I dissent. KITCHENS, P.J., JOINS THIS OPINION.

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