IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00544-COA PATSY B. WHITE APPELLANT

v. WILLIAM T. WHITE D/B/A ROYERS ESTATES INC. APPELLEE

DATE OF JUDGMENT: 03/23/2018 TRIAL JUDGE: HON. SUSAN RHEA SHELDON COURT FROM W HICH APPEALED: PIKE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PAUL E. ROGERS ATTORNEY FOR APPELLEE: W I LLIAM T. W HITE (PRO SE) NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 05/21/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GREENLEE, J., FOR THE COURT: ¶1. This appeal arises f r om W illiam T. W hite’s f ailure to t ransf

er title t o real property to his m other, Patsy B. W hite, af ter she com

pleted p a y

me n t s on t he deed of t rust. The Pike County Chancery Court dism issed Patsy ’s second am ended com plaint and f

ound that her breach-of -contract claim was barred by the statute of f rauds and the statute of lim i tations. She appeals f rom that order. W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In N ovem

ber 2007, Roy ers Estates Inc. received approxim ately 22.5 acres of property in P ike County ( the “subject property ”) in exchange f or a deed of tru s t v a l u ed at $56,375. The deed of trust was between W illiam , the owner of Roy ers E states, and Pauline Edwards,the previous owner of the property

. The deed of trust indicated that it was a security f or a
prom issory

note where W i lliam was to pay P auline the sum of $882 per m onth until it was paid in f ull. ¶3. W i lliam becam e u n ab l e t o ma k e t h e mo nthly pay m e nts. Patsy , W illiam ’s m other, agreed to take over the pay m ents on the subject property in order to avoid f oreclosure. Patsy claim ed that in exchange f o r m aking the pay

m ents, W i lliam verbally agreed t o transf er his interest in the subject property to her. ¶4. Along with the d e ed of trust on the subject property , Patsy also took over pay

m ents f or other properties under the sam e condition: that W illiam transf er title to Patsy in return f

or
pay m ent. According to Patsy , “[ t]itle to t he subject property was supposed to h ave been transf erred at the sam e tim e as the other titles to the other properties were transf erred

. . . .” The deeds e videncing the c onvey ance of the other properties were attached to t he f irst

am ended com

p laint and dated Decem

ber 16, 2008 and June 16 and 17, 2009. ¶5. In Novem

b er 2013, Patsy

com pleted pay

m e nts on the subject property

. W hen Patsy
attem pted to sell the subject property i n March 2014, she discovered that t itle t o t he subject property had never been transf

erred to her but instead rem ained in W illiam ’s nam e. ¶6. I n J u l y 2014, Patsy f iled a com

plaint f or quiet t itle, injunction, an d d a ma g e s . I n
essence, Patsy sought specif ic perf orm ance of the verbal agreem ent. Additionally , Patsy asked f or dam a ges if the title def ect could not be cured and t hat W illiam b e prevented f rom transf erring his interests in the property to any other party

. ¶7. Patsy am ended her com pla i n t o n e mo nth later to include the other properties she

2agreed to pay f o r in return f

o r t i t l e . Wi l l iam , acting pro se, f iled an answer along with a

m otion to dism iss. Following a hearing in April 2016, the chancery court allowed Patsy to

am end her c o mp l aint. On April 22, 2016, Patsy f i led a s econd am ended com plaint and asserted a claim f

or breach of c ontract. Patsy f urther sought m andatory injunctive relief and requested the im

position of a constructive trust a nd dam ages. Patsy also requested “that she be granted a lien against the subject property to secure said lien.” ¶8. W i lliam m o v ed to dism iss the second am ended com plaint. He asserted t hat the statute of f rauds and the statute of l im i tations barred Patsy ’s b reach-of -contract claim

. The chancery
court granted W illiam ’s m otion to dism iss on July 7, 2017. The next day , P atsy m oved f or reconsideration seeking clarif ication because the order gave no reason f or the dism issal. ¶9. O n M a r c h 23, 2 018, the chancery court i ssued an order with f indings of f

a c t a n d conclusions of law d eny ing Patsy ’ s m otion f o r reconsideration. In that order, t he court f ound that Patsy ’s breach-of

-contract claim was barred by t h e s t a t u t e of f r auds a n d t he statute of
lim itations. Additionally , the court determ i ned that Patsy f ailed to m eet the requirem ents f or injunctive relief

and “f a il[ e d] to plead any

of the requisite elem e nts f

o r the im position of

a constructive trust.” The chancery court concluded that the second am e nded com plaint was properly dism issed f

o r f ailure to state a claim under Rule 12(b)(6) of t he Mississippi Rules of Civil Procedure. ¶10. It i s f

rom this order t hat Patsy now a p peals. S h e a l l e g e s that (1) her claim does not violate t he statute of f

r a uds; (2) her claim does not violate the statute of lim itations; (3) the chancery court wrongly d ism issed her request f or ma n d a t ory injunctive relief ; (4) the

3chancery court wrongly denied t he im position of a constructive trust; and (5) t he chancery
court wrongly denied her the granting of a lien against the subject property

. Finding no error, we af f irm

. STANDARD OF REVIEW ¶11. “Chancellors are vested with b r o a d d i s c r e t i o n , and t his C ourt w ill not disturb the chancellor’s f

indings unless the court’s actions were m anif estly wrong, the court abused its discretion, or the c ourt applied an erroneous l egal standard.” Johnston v
. P arham , 758 So. 2d 443, 445 (¶4) (Miss. Ct. App. 2000). ¶12. “W hen considering a m otion to dism iss, this Court’s standard of review is de novo.” Scaggs v. GPCH-GP Inc. , 931 So. 2d 1274, 1275 (¶6) ( Miss. 2006). “[ T ]he allegations in the

com plaint m ust be taken as true and the m otion should not be granted unless i t a p p ears bey ond doubt that the plaintif f will be unable to prove a ny set of f acts in support of his claim .” Id.
DISCUSSION
I. Does Patsy ’ s claim violate the statute of frauds? ¶13. Patsy f

irst argues that her com

plaint w as wrongf

ully d ism issed f

or v iolati o n o f t he
statute of f

rauds under Mississippi Code Annotated section 15-3-1(c) ( Rev. 2012). Under the
statute o f f

r a u d s , “ [ a]n action shall not be brought w hereby to charge a d ef endant or other party

. . . upon any c ontract f o r the sale of lands

. . . unless

. . . the prom ise o r agreem ent upon which s uch action m a y b e b r o u g h t

. . . shall b e in writing, and signed by the party to be charged t herewith

. . . .” Miss. C ode Ann. § 1 5-3-1(c). In short, cer t a i n t y p e s o f contracts

4m

ust be in writing to be enf o rceable. W

illiams v. Evans , 547 So. 2d 54, 56 (Miss. 1989). ¶14. As the chancery court properly noted, “[ t]he obligation [ Patsy ] s e eks to im pose upon [ W illiam ] is the convey ance of an interest in real p r o p e r t y based on an alleged oral
agreem ent.” Under section 15-3-1(c), such an obligation m ust be i n writing. It is undisputed that there was no written agreem ent regarding W illiam ’s prom ise to transf e r t i t l e t o P a t sy
upon f ull pay m e nt of the n o te a n d d e ed of trust. Accordingly , Patsy ’s breach-of -contract claim is barred by

the statute of

f rauds. ¶15. Patsy asserts that even i f the agreem ent i s barred by the statute of f r auds, the e xception of equitable e stoppel a p p l i e s . B ut as the chancery court noted, P atsy f ailed to allege the exception in the second am ended com plaint. Indeed, Patsy never pled a v iable def e nse to the
statute of f

rauds. “[ I]ssues p r esented f or the f irst tim e on appeal are procedurally barred f rom consideration.” McKenzie v. Miss. Mun. Serv. Co. , 193 S o. 3d 676, 680 ( ¶15) (Miss. Ct. App. 2016).
II. Does Patsy ’ s claim violate the statute of lim itations? ¶16. Patsy claim s that W illiam b reached their verbal contract when he f ailed to t ran s fe r

t itle
to the s ubject property to her in exchange f or her m o nthly pay

m ents under the deed of trust. According t o Patsy , W illiam breached the contract by f ailing t o t ransf

er title to the subject property at or around the sam e t im e he tr a n s f e r r e d title to the o ther properties. The record shows that title to the other properties was transf erred on Decem

ber 16, 2008, and June 16 and 17, 2009. ¶17. Mississippi Code Annotated section 15

- 1

- 49 (Rev. 2012) provides a three-y ear statute

5of

lim itations f

or a breach-of

-contract claim . Subsection two of section 15-1-49 states: “In actions f o r which no o ther period of lim itation is prescribed and which involve latent injury

or disease, t he cause of action doe s n o t a c c r u e until the p laintif

f has discovered, or by reasonable diligence should have discovered, the injury

. ” M iss. Code A n n . § 1 5-1-49(2). Patsy asserts that she f

irst learned of W illiam ’s f ailure to transf

er t itle to the subject property in March 2014. Thus, P atsy claim s that t he three-y ear statute of lim itations should not begin until M arch 2014. But in h e r second am ended com plaint, Patsy acknowledged that t itle to the

s u b j e ct property was “supposed to have been transf erred” at the sam e tim e as the othe r properties. As noted by the chancery court, “[ t]he original com p laint in this action was f

iled

on July 21, 2014, m ore than three y ears af ter the latest of t he transf

er dates above (June 17, 2009).” ¶18. Patsy should have discovered the f ailur e t o t ransf

er title long bef

ore t he three-y ear
statute of limi t a t i o n s expired. Reasonable d iligence would h ave revealed the title def ect bef ore her breach-of

-contract claim becam e barred. B ecause Patsy f a iled to tim ely pursue her breach-of -contract claim , it is barred under section 15-1-49 of our code.
III. Did the c hancery court w rongly dism iss Pa t s y ’ s request for m andatory injunctive relief? ¶19. I n h e r s e c o nd am ended com plaint, Patsy s o ught m a n d a t o r y i n j u n c t i v e r e l i e f

, specif ically , an order com

pelling W illiam to deed the subject property to her. But a s t he chancery court noted, the second am ended com plaint “ d o[ es] not m eet the requirem ents f or obtaining injunctive relief u nder [ Mississippi Rule of Civil P r o c e d u r e] 65” a nd “f ails to allege any f

a cts that would support a request f or m andatory injunctive relief

. ” Instead, Patsy

6s im

ply requested that the chancery court “order [ W illiam ] to specif i cally perf

orm [ h i s ] obligation under the parties’ agreem ent by transf erring title to [ Patsy ]

. . . . ” But a s the

c h a n c e r y c ourt properly determ ined, there was n o enf orceable agreem ent between t he par t i e s . Thus, the chancery

court properly

dism issed the request f

or m andatory

injunctive relief

. IV. Did the chancery co u r t w rongly deny the im position of a constructive trust? ¶20. Patsy f

urther sought the im

position of a constructive trust. “Constructiv e t rusts are
create d f o r the purpose of preventing unjust enrichm ent, whereby one u nf airly holding a property interest m ay be com pelled to c onvey that interest to whom i t justly belongs.” Griffin

v. Armana , 687 So. 2 d 1188, 1 195 (Miss. 1996). The s uprem e court has def ined a constructive trusts as f

ollows:
A c onstructive t rust is one that arises by operation of law against o ne who, by f raud, actual or constructive, by duress o r abuse of conf idence, by c o m m ission of wrong, o r by a ny f

orm of unconscionable conduct, artif ice, concealm ent, or q u e s t i o nable m e ans, or who i n a ny way a gainst equity and good conscience, either h as obtained or holds the legal right t o property which he ought not, in equity and good conscience, hold and enjoy

. In re Estate of Parker , 13 So. 3d 877, 879-80 (¶7) (Miss. Ct. App. 2009) ( quoting Planters Bank & T

rust Co. v. Sklar , 555 So. 2d 1024, 1034 (Miss. 1 990)). W h ile we revi e w t he existence of a constructive trust de novo, “ [ t]he party a d vo c a t i n g a constructive trust m ust show by clear and convincing proof that a constructive trust is necessary a s a m atter of law.” Manning v. Perry , 242 So. 3d 972, 976 (¶18) (Miss. Ct. App. 2017). ¶21. The chancery court addressed Patsy ’s constructive-trust argum e n t in its f indings:
In this case, t he S econd Am ended Com plaint f ails to plead any of the requisite elem e nts f

or the im position of

a constructive trust.

7a. F irst, the Court f inds that D ef

endant cannot have been “unjustly enriched” a s a m atter of law. The allegations in the Com plaint establish that Plaintif

f ’s alleged pay

m ents were v oluntarily m ade. U nder Mississippi law, v oluntary pay m ents c annot be recovered back, and “if pay m ent is m ade, e ven by m istake, t o a creditor of a third person to s a t i s f y a just debt of that third person, the pay or has no r ight o f restitution of or f

rom the third party .” O mnibank o f M a ntee v
. U

nited Southern Bank , 607 So. 2d 76, 92 (Miss. 1992) (citations om i tted). b. S econd, there was consideration f or Plaintif

f ’s pay m ents of the indebtedness o n the subject property

. The Court takes judicial notice of a p r evious case involving the parties in which t he Chancery Court of Pike C ounty c onsidered the issue a n d expressly f ound that P l a i n tif

f ’s pay m ents to t he s e c u

r ed creditors on Def

endant’s p roperties constituted “com p elling proof of the love and c oncern” she h ad f or D ef e n dant (her son). See Judgm e nt, para. 5, 7, E dwin L. Bean v
. Wi l l i a m Timothy W hite, et al. , In the Chancery Court of Pike County , Mississippi, Cause No. 2 009-664. It is well-established i n Mississippi that “love and af f ection” m ay , in the circum stances present[ ed ] h ere, c onstitute adequate consideration. E state of Fallon v. Fal l o n , 3 0 So. 3d 1281, 1283 (Miss. App. 2010).

c. Further, based upon the a llegations in the Com plaint, t he Court f

inds that Def endant was clea r l y n o t i n a position to exercise a d om inant inf luence over Plaintif

f

. In f act, the Second Am ended Com plai n t alleges just the opposite. d. Finally , the Second Am ended Com plaint wholly

f ails to a llege t hat Def endant engage in any

ty pe of f raud or overreaching. ¶22. The c hancery court’s f inding was proper. “[ I]t is w ell-settled that a constructive trust does not arise sim

ply because a party f

ails to perf

orm u nder a contract.” B arriffe v. Estate of Nelson , 153 S o. 3d 613, 618 ( ¶27) (Miss. 2014 )

. And “[ a] f am i lial relationship is not intrinsically one of conf

idence.” McNeil v. Hester , 753 So. 2 d 1057, 1 065 (¶28) (Miss. 2000). Patsy f ailed to show wrong f

u l c onduct that c ould justif y the im position of a constructive
trust. E.g. , Joel v. Joel , 43 S o. 3 d 4 2 4 , 431 (¶24) (Miss. 2010) (listing exam ples of such

8conduct). W e af f irm the chancery

court’s f i ndings.
V. Did the chancery court w r o n g ly deny P atsy the granting of a lien against the subject property ? ¶23. Patsy requested “that she be granted a lien against the subject property to secure said lien.” As the c h ancery court noted, “the law does n ot recognize a ‘ lien to secure a lien.’” Moreover, “there sim

ply was n o debt to f

orm the requisite basis f

or a lien” because Patsy ’s claim is barred by

the statue of

f rauds and the statute of

lim i tations.
CONCLUSION ¶24. In l ight of our sta n d a r d o f r e v i ew, we f ind Patsy ’s second a m ended com plaint was properly dism issed. Theref

ore, we af f irm the chancery

court’s judgm ent. ¶25. AFFIRMED.
B A R NES, C.J., C ARLTON, P.J., AND L AWRENCE, J., CONCUR. WESTBROOKS, J., C O N CURS IN PART A ND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. J . WILSON, P.J., TINDELL, McDONALD AND C. WILSON, JJ., CONCUR I N P ART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS I N PART AND DISSENTS IN PART W ITH SEPARATE WRITTEN OPINION, JOINED IN PART BY J. WILSON, P.J., W E STBROOKS, TINDELL, M cDONALD AND C. WILSON, JJ. McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART: ¶26. I agree with the lead opinion that the statute of f rauds b ars this action. Yet the result leaves t he son t o reap a windf all at the expense of his m o ther and strands the m other without

a rem edy

. The solution to t his problem is either the creation o f a constructive trust or equitable estoppel (if they a re warr anted by the proof ). As a result, I m

ust respectf

ully dissent in part.

9¶27. “A constructi v e t rust is a judicially im p osed rem edy u sed to prevent unjust enrichm ent when one party wrongf

u lly retains title to property .” P resbyte r y o f St. Andrew v. First Presbyterian Church PCUSA o f Starkville , 2 40 So. 3 d 399, 405 (¶27) (Miss. 2018). As the
S u p rem e Court has held, this “is a f iction of equity created f o r t he p urpose of p reventing unjust enrichm ent by one who holds legal title to property which, under principles of justice and f a irness, rightf

u lly belongs to another.” McNeil v. Hester , 753 So. 2d 1057, 1064 (¶23) (Miss. 2000). ¶28. The rem edy

is broad:
A constructive trust is one that arises by o peration of law against o ne who, by f raud, actual or constructive, by duress or abuse of conf idence, by c o m m ission of wrong, o r by a ny f

orm of unconscionable conduct, artif ice, concealm ent, or questionable m e ans, o r w h o in any way against equity and g ood conscience, either has obtained o r holds the legal right to property which he o ught not, in equity and good conscience, hold and enjoy

. Id . at (¶24). ¶29. I n mo d ern tim es, f our elem ents m

ust be m et bef

o re a const r

u c t i v e t r u s t w i l l b e im p osed: “(1) a conf

i dential or f

i duciary relationship which m ust norm ally be shown; (2) a
prom ise by def

endant; and (3) transf

er by plaintif

f to d ef endant in reliance on def endant' s
p r o m ise (4) under circum stances that constitute unjust enrichm ent.” Jam es W

. Shelson, Mississippi Chancery Practice , § 41:1 1 ( 2 0 1 8). W i thout a conf i dential relationship, there

can be no constr u c t i v e t r u st. See Bond v. Bond , No. 2017-CA-00599-COA, 2018 W L 5603679, at *1 (¶5) (Miss. Ct. App. Oct. 30, 2018) (A claim “to a constructive trust” will be
“f oreclosed upon b y [ the] f a ilure to show t hat a conf i dential relationship e xisted.”). Likewise, if there is a conf idential relationship but “ n o abuse of conf idence,” the court

1 0cannot create a t rust. In re E state of Hood , 955 So. 2d 943, 949 (¶22) (Miss. Ct. App. 2007). ¶30. “Clear and convincing proof is necessary to establish a constructive trust.” McNeil , 753 So. 2d at 1064 (¶25). It “is a question of law” wh e t h e r t his legal rem edy should be applied “to t he set of f

acts at hand.” Id

. at (¶26). As with a ny case involving an allegation of a conf idential relationship, this rem ains a f act-intensive inquiry , and can only be reached

once a chancellor has taken proof on the existence of a conf idential relationship. Id

. at (¶27). ¶31. Many

y ears ago the burden to create a constructive trust was stated plainly : “There

m ust be conduct inf

luential i n producing the result, and but f or which such result would not have o ccurred am ounting, in t he view of a c o urt of equity , to f raud in o rder t o save the case f rom the Statute of Frauds.” Lipe v
. Souther , 2 24 Miss. 473, 4 83, 80 S o. 2d 471, 475 (1955). ¶32. In h er second am ended com plaint, Patsy specif

ically asked f

or a constructive trust i f the chancery court ref

used to honor the agreem ent f or the transf

er of l and: “Should the Court f ind that the parties d id not have an enf o rceable a g r e e me n t f

o r the transf

er of title to the subject property , Plaintif

f pray s that the Court w ill im pose a constructive trust and com pel transf er of title to the subject property to Plaintif f .” Patsy f urther alleged that she “paid the
note owed [ ] and but f

or Plaintif

f doin g so, t he p roperty would have been f oreclosed and Def endants would have lost their title to the property .” As a r e s u l t , she alleged that “[ a] constructive trust i s necessary in this m atter to prevent u njust enrichm ent o f Def endants who unf airly hold title to t he subject property as a result of their wrongf ul ref usal to convey title to Plaintif

f .” ¶33. In his m o tion t o dism iss, W illiam argue d t h a t “ [ t]he request f o r the im position of

a

1 1Constructive Trust f ails t o set f

orth f actual allegations respecting any , m uch less each, of the

m aterial elem ents necessary to sustain recovery .” ¶34. In setting out i ts f

indings of f

act a nd conclusions of law supporting the dism issal, the chancery c ourt actually agreed that Patsy had “paid the r em aining balance d ue on t he subject property in f

ull” and that W i lliam “subsequently r ef used Plaintif

f ’ s r equests to transf

er title
to the s ubject property to her.” Yet the chancery court claim e d t hat “ [ i]n this case, the Second Am ended Com

plaint f ails to plead any of

the requisite elem ents f

or the im position of a constructive trust.” ¶35. H o w e v e r , b ased on our rules in Mississippi, c om plaints are o nly to be “ s h o r t a n d plain.” M.R.C.P. 8(a)(1). There is no specif ic r equirem e nt that each and every elem ent be pled – i ndeed, the o nly requirem ent is that a def endant b e put on notice. The invocation of the language regarding a constructive trust was suf f i cient to put W il l i a m o n n o t ice and to

m ove the action bey ond the m o tion to d ism iss stage. To d i s mi s s t h i s case f or a f ailure of technical pleading i g n o r e s t h e plain language of Rule 8 and our precedent apply ing it. 1
Furtherm o re, i t is too harsh of a c onclusion given the chancery court’s f indings that Patsy did

1 F o r a related reaso n I d isag ree w i th th e lead o p i n io n ’ s co n c l u sio n reg a r d i n g eq u itab le esto p p el. T h e lead o p in io n h o ld s th at P a tsy “f ailed to alleg e th e ex cep tio n in th e seco n d a m en d ed co m

p lain t,” an d th a t s h e “n ev er p led a v iab l e d ef en se to th e s tatu te o f f rau d s.” A n te at ¶1 5

. Y et b y o u r ru les in M ississip p i, co m p l ain t s are o n ly t o b e “sh o rt an d p lain .” M .R .C .P

. 8 (a)(1 ). F o r t h e m o st p art th e S tatu te o f F rau d s i s n o t s o me t h in g o n e w o u l d in clu d e i n a co m

p lain t, b u t is i n stead an af f irm ativ e d

efen se to a claim o f co n tract b reach

. In d eed , it is sp ecif ically listed as an af

f irm ativ e d ef

en se i n R u le 8 (c); see a lso H ertz C o m m ercia l L ea sin g D iv. v. M o r riso n , 5 6 7 S o . 2 d 8 3 2 , 8 3 5 (M iss. 1 9 9 0 ) (“If h e w ish es to ch arg e th at th e s tatu te o f f rau d s ren d ers th e c o n tract u n en f o rceab le in law , h e m

u st so p lead af f irm ativ ely .”). T h ere is n o th in g in R u le 8 w h i ch req u ires a p lain tif f to an t icip ate an d th en co m b at a p o ssib le d ef

en se in a co m

p lain t

. 1 2indeed pay

of f W i lliam ’s indebtedness. 2 ¶36. I b elieve this case e choes one where tw o g r a n d children “were approached by their grandparents and urged to invest m o ney , w hich they h ad previously been u n a w are they possessed, into the construction a nd renovation of their grandparent’s house.” In re Estate of H orrigan , 7 57 So. 2d 165, 1 71 (¶27) (Miss. 1999). In return, t he two g randchildren were
prom ised “they would be willed the entire property af t er both [ their grandf

ather] and his wif

e died.” Id

. at 167 ( ¶ 2 )

. Of course, the grandchildren were not given the property upon his passing. Id

. ¶37. But t he grandchildren were not stranded without a r em edy

. In addition t o a p p ly ing equitable estoppel, the Court held that a constructive t ru s t should b e im posed. I d

. at 171 (¶28). Since the grandchildren relied on the a g reem ent f rom their grandf

ather, t hey “invested

a m ajority of their savings i nto the renovation.” Id

. at (¶27). “To ref use [ the g randchildren] the benef its of the a greem e nt would unjustly enrich” the r em aining landowner. Id. at (¶28).
“W hile this Court is unable to grant specif ic perf orm a nce in these c ircum stances,” since the
Statute of Frauds barred recovery , “we do hold t hat as a result of the [ grandf ather’s] conduct, a constructive trust has been created in f avor of [ the grandchildren] which will continue to exist until such tim e as they are repaid the [ cost of t he renovation] plus interest f rom the date of last pay m ent.” Id

. ¶38. In Horrigan , equity was done. Additionally , that case had a m ple proof a t trial and f

or

2 T h e ch an cery co u rt f

o u n d th at th ese p ay

m en ts w ere v o lu n tary

. T h is m atter is clearly in h o t d isp u te b etw een th e p a rties, an d g iv en P atsy ’s in stitu tio n o f a law su it a g ain st h er so n f o r th e p r o p erty o r so m e f

o rm o f eq u itab le relief

, th e issu e sh o u ld h av e n o t b een d ealt w ith at th e m o tio n -to -d ism i ss lev el. 1 3appellate review. Critically , the conclusion t hat the m o ther f ailed to p rove her c laim s is self

def eating since her claim s were d ism i ssed at the m otion-to-dismi s s stage. S he was never allowed to develop proof in discovery that m ight have supported her claim s. Here, I believe

we sim ply do not have enough inf orm ation i n the record to determ i ne if the high burden of

a constructive trust was m e t. W e cannot assum e sim ply b ecause the relationship is between

a m other and a son that it was conf idential i n nature; indeed, in the Bond case, the case involved property and a f ather and a s on, but there was no conf i dential relationship. Bond , 2018 W L 5603679, at * 1 (¶5). By the sam e t oken, we can n o t assum e that even if a conf idential relationship existed that there was necessarily an abuse of the conf idence. For this r eason i t was prem ature f or the c hancery c o urt to d ism iss the case in i ts entirety bef ore
t a k ing proof on these f

act-intensive issues. A constructive trust is a rem edy f or loss whe n a claim f ails due to the Statute of Frauds, and it should have been allowed to proceed. ¶39. It appears f

rom the a rgum ents of the parties that Patsy paid over f i f ty thousand dollars
to a third party to keep W illiam out of f oreclosure. In exchange, W illiam was to convey his interest in p r o p e r t y to her. She is out the m oney , and he retains the property now f ree and clear, in a classic windf

all

. P a t s y h a s clearly suf f ered a harm , and has turned to the court
sy stem f or help. As the Suprem e Court glum ly declared in Horrigan , “at t im es, blood is not thicker than water.” Horrigan , 757 So. 2 d at 166 (¶2). Instead of depriving h er of a rem edy , I would apply the longstanding p rinciple that “if there is no adequate rem edy at law, equity will st e p i n .” Tolbert v. Southgate Timber Co. , 9 43 So. 2d 90, 99 ( ¶31) ( Miss. Ct. App. 2006). For equity will not suf f er a wrong without a rem edy

. Emmons v. Emmons , 217 Miss.

1 4594, 6 00, 64 So. 2d 753, 755 (1953). The better solution i s t o a l l o w t he im position of a constructive trust or the application of equitable estoppel. ¶40. I would a ls o n o t f i n d the suit tim e b arred f or Patsy to seek recovery of som e sort because she claim ed that s h e d i d not discover t hat her son breached the agreem ent f or the transf er of property until a later date. This case was decided at the m otion t o dism iss level under Rule 12; the m atter is sim ply not developed enough o n the plain f ace of the com

plaint to determ ine if

it is tim e barred. ¶41. I agree that the statute of f rauds is applicable. But because we allow a wrong without

a rem edy in this case, I m u st respectf

ully dissent in part.
J. WILSON, P .J., WESTB R O O K S , T I N D E L L , M c D O N A L D AND C. WILSON, JJ., JOIN THIS OPINION IN PART.

1 5