IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-CA-01602-SCT

JAMES S. POWELL

v.

OUIDA CAMPBELL

DATE OF JUDGMENT: 07/21/2004

TRIAL JUDGE: HON. FRANKLIN C. McKENZIE, JR.

COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: KEITH R. RAULSTON

ATTORNEYS FOR APPELLEE: WENDY C. HOLLINGSWORTH

JAMES W. BACKSTROM

NATURE OF THE CASE: CIVIL - REAL PROPERTY

DISPOSITION: AFFIRMED - 10/20/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. An unsuccessful real esta te purchaser appeals from a judgment dismissing his chancery

court lawsuit for damages against the owner. Finding no clear error in the chancellor’s

findings of fact and no error in the chancellor’s legal conclusions, we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. Ouida Campbell owned land in Jones Co unty that contained two mobile home parks, the

dried lake bed of Indian Springs Lake, and land po sitioned south of an old spillway. Campbell

and her husband moved to Gautier, Missis s ippi, in 1996 but continued to operate the mobile2

home parks and maintained a mobile home for themselves at one of the parks. Campbell’s

husband became seriously ill a few years after moving to Gautier, and Campbell eventually

decided to sell the property in Jones County.

¶3. In April of 2000, Campbell contacted James S. Powell and his wife and asked if they

would be interested in purchasing her property. The Powells, whose home was adjacent to the

land Campbell hoped to sell, visited the property, and Campbell offered it to the Powells for

$150,000 . The Powells did not purchase the property, but a year later James Powell told

Campbell that he was interested in buying a portion of her property

- specifically, the old lake

bed and the land south of the spillway.

¶4. Powell s ubsequently arranged for an appraisal and survey of the land he hoped to

purchase. Campbell and Powell agreed that Powell was to bear the expense of both the

appraisal a nd survey. The appraisal was conducted in August of 2001 and indicated that the

value of the property south of the spillway was $1,500 per acre and that the land encompassing

the old lake bed was worth an estimated $1,000 per acre. Campbell agreed to sell Powell the

land at the per acre amount determined by the ap praisal. However, the survey work was not

completed until early the next year.

¶5. In October 2001, Campbell asked Powell for a $10,000 down payment. Powell’s

attorney advised having Campbell sign a contract for the sale of the land before giving her the

money. Powell’s attorney drafted a contract, but Campbell wanted parts of it changed before

she would sign it. Campbell never received a revised version of the contract or the down

payment she requested from Powell. In January of 2002, Powell had a law firm conduct a title

search of the land. That process took two months, and Campbell eventually sent the attorney1 Miss. Code Ann. § 15-3-1(c) (Rev. 2003) states that an action should not be brought

to charge a defendant concerning a c ontract for the sale of lands unless “the promise or

agreement upon w hich such action may be brought, or some memorandum or note thereof,

shall be in writing, and signed by the party to be charged therewith or signed by some person

by him or her thereunto lawfully authorized in writing.”

3 conducting t

he title search a letter expressing her dissatisfaction at the length of the land sale

process and her disappointment that Powell still had not provided her with a down payment.

¶6. Unbeknownst to Powell or his attorney, Campbe ll had been offered $150,000 for the

entire property and $13,000 for her mobile home by Kenneth Graves. Graves eventually paid

Campbell $5,000 in earnest money to secure his right to buy the property. Anxious to sell her

property, Campbell sold the land to Graves on March 26, 2002.

¶7. Powell f

iled suit against Campbell in the Chancery Court of the Second Judicial District

of Jones County as serting a number of causes of action and arguing that he spent a great deal

of money for an appraisal, survey, and title work in reliance o n Campbell’s agreement to sell

the property. Powell sought $100,000 in actual damages and $10,000,000 in punitive

damages. Campbell denied the claims and affirmatively pled that the alleged contract violated

the statute of frauds. 1 The chancellor found for Campbell opining that any oral contract for

t he sale of land would violate the statute of frauds, but that no contract for the sale of lan d had

ever come into existence in this case. The chancellor also found that the condition of a down

payment was never met by Powell, and Powell’s argument concernin g equitable estoppel was

without merit. All claims against Campbell were dismissed.

DISCUSSION

¶8. The findings of a chancellor will not be disturbed on review unless the chancellor was

manifestly wrong, clearly erroneous, or applied the wrong legal standard. McNeil v. Hester

,4

753 So. 2d 1057, 1063 (Miss. 2000) (citing B ank of Miss. v. Hollingsworth

, 609 So. 2d 422,

424 (Miss. 1992)). We review a chancellor's decision under an abuse of discretion standard.

Id. (citing Ch urch of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc. , 716

So. 2d 200, 204 (Miss. 1998)). However, for questions of law, the standard of review is de

novo. D uncan v. Duncan 774 So. 2d 418, 419 (Miss. 2000) (citing C onsolidated Pipe &

Supply Co. v. Colter , 735 So. 2d 958, 961 (Miss. 1999)).

I. Whether the Chancellor Erred in His Findings of Fact.

¶9. Powell asserts that the chancellor erred in his determinations con cerning five factual

issues. All of the errors Powell alleges the chancellor made in his factual findings turn on

conflicting testimony. Powell points to conflicts in the testimony of witnesses for both sides,

but his occasional references to th e record and testimony show no evidence that the

chancellor’s factual determinations were manifestly wrong or clearly erroneous. S ee M cNeil

,

75 3 So. 2d at 1063; W eathersby v. Weathersby

, 693 So. 2d 1348, 1353 (Miss. 1997); In re

City of Horn Lake , 630 So. 2d 10, 16 (Miss. 1993).

¶10. Powell has not shown any e vidence that would warrant abandoning the deference we pay

to factual findings by a chancellor. Powell’s arguments involving issues of fact are without

merit.

II. Wh

ether the Chancellor Erred in Rejecting Powell’s

Equitable Estoppel Argument.

¶11. The cha ncellor correctly found that no written contract for the sale of land had come

into existence as requ

ired by the statute of frauds, and Powell argues that the chancellor erred

in refusin g to use equitable estoppel to enforce his oral agreement with Campbell. S ee Reid5

v. Horne

, 187 So. 2d 316, 318 (M iss. 1966). Powell asserts that he relied on Campbell’s

promise to sell her land and spent money in reliance on that promise. Powell argues that,

based on his detrime ntal reliance, Campbell should be estopped from denying that a binding

agreement was formed.

¶12. The doctrine of equitable estoppel may be used to enforce an oral contract which would

otherwise be unenforceable under the statu te of frauds. K

oval v. Koval

, 576 So. 2d 134, 137

(Miss. 1991); San ders v. Dantzler , 375 So. 2d 774, 776 (Miss. 1979). However, estoppel

should only be used in exceptional circumstances and must be based on public policy, fair

d ealing, good faith, and reasonableness. P MZ Oil Co. v Lucroy

, 449 So. 2d 201 , 206 (Miss.

1984). S ee also McLearn v. Hi ll , 177 N.E. 617, 619 (Mass. 1931); Koval

, 576 So. 2d at 137;

Sanders , 375 So. 2d at 776-77.

¶13. Knowing that Campbell was anxious to sell her property and in immediate need of the

proceeds from the sale, Powell unreasonably failed to gi ve Campbell a down payment to secure

his right to purchase the property. After eight months, Powell still had not provided Campbell

with a written contract or any earnest money and had allowed inaccurate surv ey lines and

incomplete title work to further complicate the agreement to sell Campbell’s property. While

Powell did tak e financially detrimental steps in reliance on Campbell’s promise, he simply has

not shown that, in light of his actions, estoppel woul d be the most fair and reasonable remedy

or that injustice can only be avoided by enforceme nt of Campbell’s promise. S ee PMZ Oil

Co.

, 449 So. 2d at 206; Sanders

, 375 So. 2d at 776. We find that the chancellor did not err6

in refusing to a pply equitable estoppel in this case or in denying Powell’s request for reliance

damages.

III. Whether the Chancellor Erred in Denying Powell

Restitutionary Relief.

¶14. Powell also asserts that the chancellor erred in failing to award him restitutionary

damages. The theory of restitution is founded on the unjust enrichment of one at the expense

of another. F ourth Davis Island Land Co. v. Parker

, 469 So.2d 516, 524 (Miss. 1985);

Magnolia Fed. Savs. & Loan Ass 'n v. Randal Craft Realty Co. , 342 So.2d 1308, 1311 (Miss.

1977). Unjust enrichment only applies to situations where there is no legal contract and “the

person sough

t to be charged is in possession of money or property which in good conscience

and justice he should not retain but should deliver to another.” K

oval

, 576 So. 2d at 136

(quoting Ha ns v. Hans , 482 So.2d 1117, 1122 (Miss. 1986)). Powell paid Campbell nothing,

and he has failed to show that Campbell was unjustly enriched by re taining any money or

property that should rightfully be his. Thus, the chancellor did not err in denying Powell’s

request for restitution damages.

CONCLUSION

¶15. For these reasons, we affirm the chancellor’s judgment.

¶16. AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, C ARLSON, GRAVES, DICKINSON AND

RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.