IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-01187-SCT JON A. SWARTZFAGER

v. THOMAS R. SAUL

DATE OF JUDGMENT: 07/08/2015 TRIAL JUDGE: HON. HOLLIS McGEHEE COURT FROM W HICH APPEALED: JONES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: GLENN S. SW ARTZFAGER ATTORNEYS FOR APPELLEE: CORY NATHAN FERRAEZ SAMUEL STEVEN McHARD NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED IN PART; REVERSED IN PART AND REMANDED - 02/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. MAX WELL, JUSTICE, FOR THE COURT: ¶1. Thom as R

. S a u l and Jon A. Swartzf ager initially r eached a v erbal agreem ent f or Saul’s purchase of a piece of property located within a l arger t r a c t o f l a n d S wartzf ager owned. But another person cam e along and of f ered Swartzf

ager a signif

icant sum to buy the whole tract. So Swartzf

ager approached Saul an d a s k e d i f he would f orego their original l a n d d e al and in exchange accept a separate parcel within a dif f erent tract of land

. S a u l agreed to Swartzf

ager’s new of

f er, and Swa r t z f

a ger reduced their a greem ent to writing—stating that f

or “good a nd valuable consideration” already received , h e w ouldtransf

er the second p arcel to Saul upon request. However, Swartzf ager later backed out and never transf

erred any land to Saul. ¶2. Saul f

iled suit against Swartzf

a ger seeking dam ages and specif ic perf orm a nce. The chancellor f

ound a valid contract existed between Saul and Swartzf ager, a n d a warded h im dam ages, attorney ’s f

ees, and prejudgm ent interest. Af ter r eview , this Court f

inds the chancellor correctly r

uled t hat Saul and Swartzf ager h ad a cont r act. And e v en absent the contract, S aul proved he d etrim e ntally relied on Swartz f a g e r ’ s of f ers and prom ises. So Swartzf ager is e q u i t a b l y estopped f rom deny ing the land deal. Additionally , we f ind the chancellor’s a wards f

or intentional inf

liction of em otional distress and attorney ’s f ees are supported. But the chancellor did err in awarding p rejudgm e n t interest, because Saul did not plead a request f

or p rejudgm ent interest. W e thus af f i rm in part, reverse in part, and rem and f or a recalculation of d am ages and attorney ’ s f ees t hat does not include p rejudgm e nt interest.
B ackground Facts and Procedural History ¶3. Swartzf

ager, an attorney in Jones County , approached Thom as S aul in January 2007

at h is hom e. He of

f ered Saul an opportunity t o purchase acreage of his choosin g a t a l ow price, in a large tract of l and. Swartzf ager owned approxim ately sixty -three acres near Saul’s hom e, which he planned to develop into a subdivision—Deer fi e ld. S wartzf ager w anted Saul, who was a Mississippi highway patrolm an, t o be one of the f irst h o me o w n e r s so the neighborhood “would have a law enf orcem ent presence.” Saul agreed and had a f ive-acre tract survey ed near the center of the developm ent. He presented the survey to S wartzf ager and tried to c lose on the transaction num erous tim es. But Swartzf ager either did not respond

2or delay ed delivering closing docum ents. Meanwhile, rely ing on Swartzf a g e r ’ s representations, Saul and h is f am ily sold thei r h o me and planned t o build a “shop” on the property

. Saul intended to live in the shop with his f a m ily while his new house was under construction. ¶4. W i th the closing on their own hom e approaching and no closing in s ight f or the Deerf ield acreage, Saul and his f am ily were f

orced t o purchase and live in a m o bile hom e. They also had to pay

to store their belongings. Saul continued to ask Swartzf ager to close

on the property

. B ut Swartzf ager dodged him

. During this tim e, Swartzf ager was ironing out a separate proposal with a m an nam ed B ill Jenkins. And Jenkins eventually of f ered to
p u r c h a s e t he entire s ixty -three acre D eerf i eld t ract. The of

f er would n et Swartzf

ager a substantial prof

it. ¶5. Swartzf

ager f i rst f loated the idea o f selling Jenkins the tract, l ess S a u l ’ s f ive acres. B u t eventually he a

pproached Saul with a separate p roposal. He a sked Saul i f h e w o u l d relinquish any interest i n the f ive acres at Deerf

i eld, and in exchange a ccept s i x a cres in the Grand View Estates subdivision. Saul agreed to this proposal. And on June 7, 2007, Swartzf ager draf ted a basic agreem ent to this ef f ect on his letterhead and signed it. ¶6. In his letter, Swartzf ager wrote: I, Jon A

. Swartzf

ager, do hereby contract to sell to Thom as “Sonny ” Saul and wif e six a cres of

land of the twelve acres belonging to m e w ithin Grandview subdivision on t he Sharon Moss road in the S econd Judicial District of Jones County , Miss. This contract is m ade af ter I h ave received good and valuable consideration f

rom Mr. Saul and the transf e r o f p r o perty by warranty deed f r o m m e to him is to take place within 10 day s of a r equest f or sam e b y M r . Saul.

3/s/ Jon A. Swartzf ager Dated: June 7, 2007 ¶7. Saul visited the Grand View Estates property and picked the n orthern six acres. He then d r ew a m ap of the chosen land. W i th both the d r a w i n g and agreem ent in hand, Saul

m ade requests f

or S wartzf

ager to close on the Gra n d V i e w E states p roperty

. But again, Swartzf ager either d i d n o t respond or delay ed. So, o n August 23, 2007, Saul f iled suit against Swartzf

a ger, his wif

e Helen, and He l e n ’ s r e a l e s t a t e com pany , Pinehurst Realty , LLC. Saul sought to enf

orce his agreem ent with S wartzf ager, claim in g breach of contract, equitable estoppel, and prom issory estoppel. And he r equested related dam ages. Saul f iled his c om p laint in Jones County , and it was assigned to Chancery Judge Franklin McKenzie
Jr. But J udge McKenzie recused, citing c o n f l i c ts, a n d requested a s pecial chancellor be appointed. This Court appointed Judge Jam e s Thom as Jr. on Septem ber 5, 2007. ¶8. Af ter conducting som e initial discovery , the parties m et with Judge Thom as and prepared a scheduling order f or the rem aining discovery , which he signed on July 1, 2008. By August 26, 2008, Saul f iled f o r sum m ary j udgm ent. Soon af ter, the def

endants r esponded and likewise f

iled a m otion f

or sum m ary judgm e nt. Judge T hom as considered t he argum ents and g ranted partial sum m a ry judgm ent to Saul on February 12, 2009. In doing s o, Judge Thom a s declared the Jun e 7 , 2007 writing by Swartzf ager a valid, enf

orceable contract. J u d g e T h o ma s then set t he m atter f or trial. But bef

ore he could conduct the trial, Jud g e Thom a s passed away . And on March 1 5, 2011, this Court appointed Judge Ray H. Montgom ery

to hear the case. On June 29, 2011, Judge Montgom e ry held a hearing on all pending m otions and granted sum m ary judgm ent to H elen Swartzf ager and Pinehurst Realty ,
4LLC—dism issing all claim s against them

. This lef t o nly the claim s a g ainst Jon S wartzf ager individually

. ¶9. The p arties then c onf erenced with Judge Montgom ery and, by agreed order, t h e m atter

was set f or a Novem

ber 29, 2012 trial. The trial took place o ver Novem ber 29, 2012; January 25, 2013; and April 8, 2013. Bu t J u dge Montgom ery also died bef ore rendering a f

inal decision. And on Decem

ber 19, 2014, this Court appointed Judge Hollis McGehee to preside

over t he c a se. Judge McGehee m e t with the p arties and, af ter discussion, the parties agreed that Judge McGe h e e should review the existing record and render a decision. The parties agreed this was a better course t han c o nducting an entirely new trial. Judge M cGehee entered an agreed order m em orializing this m ethod f or handling the case. 1 ¶10. On May 6, 2015, Judge McGehee m ailed the parties a letter opinion and decision. He asked S aul’s attorney to incorporate the rulings into a f inal opinion and j udgm ent. On May 21, 2 015, the f

inal m em orandum and judgm ent was signed b y J u dge McGehee and acknowledged b y both attorney s. Judge McGehee f o u n d S aul had given S wartzf ager valuable consideration f

or the Grand View Estates property by relinquishing any interest in the Deerf ield property

. He also f

ound Swartzf

ager’s testim ony supported this, along with his apparent authority t o act on his wif e’s behalf

. J udge McGehee held S a u l h a d r e lied on Swartzf ager’s original a nd “substitute” o f f ers and prom ises, resulting in the sale of h is f am ily

1 T h e r eco r d also co n tain s an em ail f ro m Ju d g e M cG eh ee to th e p arties co n f irm i n g th eir d esire to h av e h i m

rev i ew th e reco rd t o r each a f in al d isp o sitio n , rath er th an co n d u ct a n ew trial. 5hom e, m oving his f am ily to a m o bile hom e, and requiring he secure storage f or m any of their personal belongings. ¶11. As the judge saw it, “the June 7, 2007 alternate of f er was, in essence, a pay back or
pay m ent to [ Saul] and his wif e” f or the troubles they s u f f e r e d w h i l e acting “in f

ull detrim ental reliance on [ S wartzf ager’s] unsolicited of

f ers and prom i ses.” Judge M cGehee described these representations as “[ p]rom ises and of f ers which [ Swartzf

ager] f ully f ailed to perf orm on f or the purpose of

m aking a substantial prof it.” ¶12. Judge McGehee f

o u nd the June 7, 2 007 letter c learly s tated Swartzf ager “was giving the six acres to [ Saul] and the consideration was [ Saul’s] f oregoing his right to buy f ive acres of h is choosing in D eerf

ield which f

acilitated the sale of the sixty thre e a c r e s in Deerf ield which greatly

benef itted [ Swartzf

ager].” ¶13. Based on Swartzf

ager’s intentional breach, Judge McGehee f o und Saul was entitled

to m o netary dam ages—$53,400 f or breaching the contract, plus $79,098.81 in prejudgm ent interest. 2 The chancellor also held Swartzf ager l iable f

or $22,785 in losses and costs incurred by Saul, as a “ d i r e c t a n d proxim ate result of the egregious actions a nd om issions by [ Swartzf ager]

. ” A n d h e awarded Saul $50,000 f or his em otional distress. All tallied, the judgm ent against Swartzf ager totaled $205,283.81. ¶14. Furtherm ore, b e cause of Swartzf age r ’ s a c tions, Judge McGehee f ound a separate hearing o n attorney ’s f

ees was necessary . Saul f

iled a m em o randum in support of attorney ’s f ees. But Swartzf

ager d id n ot. And af

ter an unsuccessf

ul conf erence on the issue, the parties

2 Ju d g e M cG eh ee co m

p u ted p rej u d g m en t in terest at ei g h t p e r c en t p er an n u m f ro m Ju ly 1 3 , 2 0 0 7 u n til M a y 1 3 , 2 0 1 5

— o r 7 .8 3 5 6 y ears. 6f

iled a j oint m otion to determ ine attorney ’s f ees. At that point, J udge McGehee ruled on the

m atter. Both parties a cknowledged his am ended m em orandum o pinion and judgm ent, which

was entered on July 8, 2015. In it , h e f ound Swartzf

ager’s actions were so egregious and intentional that S aul was entitled to attorney ’s f ees in the a m ount of $88,362.40—raising the total judgm ent against Swartzf ager to $293,646.21. ¶15. Swartzf

ager now a

ppeals

. H e c l a i m s the c hancellor erred by —(1) f inding the June 7, 2007 writing a valid and e nf orceable contract; ( 2) not, alternatively , f inding the June 7, 2 0 0 7 w r i t ing w as an undelivered prom ise f or a gif t; (3) awarding dam ages f or em otiona l distress; (4) awarding attorney ’s f ees; and (5) im

properly awarding prejudgm ent interest. Analy sis Standard of Review and Judicial Estoppel ¶16. W e will not disturb a chancellor’s decision unless i t was m anif estly wrong, clearly

erroneous, or applied the wrong legal standard. McNeil v. Hester , 753 So. 2d 1057, 1063 (¶ 21) (Miss. 2000) ( citing B ank of Mississippi v. Hollingsworth , 609 S o. 2d 422, 424 (Miss. 1992)). But questions of law are reviewed de novo. Id

. (citing Consol. Pipe & Supply Co. v. Colter , 735 So. 2d 958, 961 (Miss. 1999)). ¶17. W h i l e t

h e s e s t a n d a r d s t y p i c a l l y a p p l y t o a c h a

n c e llor’s decisions, Swartzf ager suggests

our review of h i s appeal should dif f er. H e argues a de novo review of all issues is required because Judge McGehee based his decision o n t e s t i mo n y f rom hearings b ef

ore previously assigned chancellors. And he ins i s t s t h ese chancellor’s f indings should be given no def erence. W e disagree.

7¶18. W e f ind Swartzf

ager is judicially estopped f r om taking this new a

pproach. A litigant is “estopped f

r o m t a k i ng a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous p osition, and ( 3) the party did not i nadvertently take the inconsistent positions.” Clark v. Neese , 131 So. 3d 556, 560 (¶ 1 6) (Miss. 2 0 13) (citing Kirk v. Pope , 973 So. 2d 981, 991 (Miss. 2007) (quoting In re Superior Crewboats, Inc. , 374 F

. 3d 330, 335 (5th Cir. 2004)). The parties and Judge McGehee specif

ically discussed whether to hold a new trial. And the parties agreed Judge McGehee could, and should, render a decision b ased on the existing record rather than hold

a new trial. Indeed, the r ecord contains Judge McGehee’s em ail t o the parties conf irm ing this approach, along with an agreed order m em orializing the agreem ent, signed by the chancellor and parties. So Swartzf

ager is estopped f

rom now claim ing t hat, because the f inal decision did not f a vor him , this Court should apply a de novo review. ¶19. W e also f

ind no m e rit to Swartzf

ager’s argum ent that the chancellor’s f indings be given no def

erence b e c a u s e they are v erbatim adoptions o f Saul’s proposed f indings. W e f ind that J udge M cGehee m ade his own f indings, with f

e w exceptions, based on the record. 3
It is true t h a t J udge McGehee a dopted f indings f rom the previous chancellors f rom prior partial sum m ary judgm ent r ulings, but if Swartzf

ager takes issue w i t h these particular f indings he should have app e a l e d t h e sum m ary judgm ent rulings. And t he record shows Swartzf ager, in m a ny instances, either agreed or conceded to Saul’s proposed f indings of f

act

3 Ju d g e M cG eh ee also ad o p ted u n c h allen g ed f in d in g s f ro m th e p rev io u s ch an cello r’s su m m a ry j u d g m en t

ru lin g s. 8and conclusions of law, or sim ply did not provide proposed f indings or conclusions of his own. Heightened scrutiny by this Court is not required.
I. 2007 Writing as a Contract ¶20. Turning t o the m erits, Swartzf ager f irst attacks his w ritten agreem ent. He argues the
June 7 , 2007 writing is def ective and does not survive the Statute of F rauds as an enf orceable

contract. He also claim s that because the contract d oes not describe the Grand View Estates land with suf

f icient specif

i city or include a price, it f

ails as a m atter of

law. ¶21. Mississippi’s Statute of Frauds requires a contract f or the sale of land t o be in writing and “signed by the person to be c harged therewith

. . . .” Miss. Code Ann. § 15-3-1(c) (Rev. 2012). But “[ t]hese w ritten m em oranda n eed not necessarily be em bodied in one writing: there m ay be one or m ore, if they are connected by p hy sical contact, by ref er e n c e , o r b y necessary connection.” F isher v. Kuhn , 54 Miss. 480, 483 (1877) (citing Jelks v. Barrett , 52 Miss. 315, 322-23 (1876)). Swartzf ager him self wrote and signed the June 7, 2007 letter, in which he agreed t o convey t o Saul s ix acres o f the Grand View E states property within ten day s o f Saul’s r e quest to c l o s e. Swartzf ager then asked Saul to choose which six acres he wanted. S aul com

plied and requested the northern six acres of the G rand View Estates property

. He also drew a m ap of this area. Saul then com bined his d

rawing with Swartzf ager’s writing a nd delivered the docum e n t s t o S wartzf ager’s of f ice, w ith a request
to close. Together, the June 7, 2007 writing and Saul’s m apped out description—which was

m ade at Swartzf

ager’s request—f

orm ed an a greem ent f

o r the s a l e o f the northernm ost six acres of Swartzf ager’s property within Grand View Estates.

9A. Description of the Land

¶22. Swartzf

ager next takes issue with the m ap. He a rgues Saul’s m ap does n ot suf f iciently describe the chosen property

. Swartzf ager is correct that “[ t ]he description of the land in a
contract f or the sale of real property is unquestionably an essential term that m ust be stated with specif

icity .” Woodruff v. Tham es , 1 43 So. 3d 5 46, 554 (¶ 1 9) (Miss. 2014) (citations

om itted). But generally , a description is suf f icient if a survey or can locate the boundaries by f ollowing the description. See Trotter v. Gaddis & McL a u r i n , Inc. , 452 So. 2 d 453, 456 (Miss. 1984); Overby v. C a v a n a u g h , 434 S o. 2d 1365, 1366 (Miss. 1983). Moreover, a description m ay still be considered suf f icient, though it c ontains inaccuracies, if the property could be located with som e certainty

. See Stockstill v. Gam m ill , 943 So. 2d 35, 4 1-42 (¶ 11) (Miss. 2006). Swartzf

ager’s J une 7, 2007 l etter identif ies t he selected land as “six acres of land of the twelve acres b elonging to m e in the Grandview subdivision on t he Sharon Moss Road in the Second Judicial District of Jones County , Mississippi.” He identif ied half of a twelve-acre parcel, w ithin a s pecif ic subdivision, in a specif ic judicial distric t of Jones County

. Swartzf

a ger then asked Saul to pick which half of the twelve-acre parcel he wanted, which Saul did. Saul m a

pped the northern half along the adjacent n eighbor’s property line. He also included several roads and noticeable boundaries, as well a t the m ap’s orientation. Swartzf ager had no m isunderstanding about the chosen land. And this description is m ore than suf f icient f or a s urvey or t o locate the property ’s boundaries. Thus, the chancellor did not err in f

inding the land was suf

f iciently described.
B. Price of the Land

1 0¶23. Swartzf ager a lso insists his writing f ailed f or not including a purchase price. He relies heavily on Duke v. Whatley , a r g u ing the f ailure to i nclude a price i s a f atal d ef ect which renders the June 7, 2 007 writing an i n dication of intent rather t han a contract. Duke v. Whatley , 580 So. 2d 1267, 1273-74 (Miss. 1 991) (collecting authorities). W e note, however, that Duke and the other cases cited by Swartzf ager largely concern contracts t o enter a later contract, or agreem e nts f o r f u t ure a greem ents—som ething w e do not f ace here. By S wartzf a ger’s own written words, he had “received good a nd valuable consideration” and would transf

er the property t o Saul w ithin a speci f i e d t i me , u

pon request. S wartzf

ager expressed, in w riting, that consideration had already been exchanged. H e likewise expressed i n w r i t ing his r e adiness to convey the six acres. Theref ore, S wartzf

a g er’s J une 7, 200 7 writing d i d n o t f

a i l to include a price to be paid

. It just did not include the price already paid —and that is where the am biguity lies. And where c ontracts “ ev a d e clarity as to the part i e s ’ intent, t he court should consider extrinsic or parol evidence.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc. , 908 So. 2d 107, 112 (Miss. 2005) (citations om itted). ¶24. Judge McGehee recognized this m axim and c onsidered S wartzf ager’s own testim ony and statem ents, along with Saul’s. 4 And he f ound that Swartzf

ager agreed he was going to
convey the six acres in Grand View Estates t o Saul in exchange f or Saul’s consent to the sale of the entire Deerf

ield property to Bill Jenkins. Swartzf ager only began to back out f rom this
agreem ent when Saul “picked property he shouldn’t have” and heard r um ors S aul w as going

4 Ju d g e T h o m a s g r an ted p artial su m m ary j u d g m en t i n f av o r o f S au l, f

in d in g th at th e Ju n e 7 , 2 0 0 7 w ritin g w as a co n tract. 1 1to f

lip the property

. 5 But Judge M cGehee did not f ind any such l im itations or restrictions in the June 7, 2 0 0 7 a g r e e m ent. A nd Swartzf ager’s own testim o ny established he h ad agreed that in exchange f

or Saul’s consent to the Deerf ield s ale, he would transf

er six acres of Saul’s choosing to him

. W e f

i nd the r ecord s upports t he trial c ourt’s f inding that consideration had already changed hands—specif i cally Saul’s f

o rbearance o f any claim t o the Deerf ield property

. C. Contract Ambiguities and Vagaries ¶25. A consistent rule of contract construction is that “when the term s o f a c o n t r a c t are vague or am

biguous, they are a lway s construed m ore s trongly against the party preparing it.” Stam pley v. Gilbert , 332 So. 2d 61, 63 (Miss. 1 976) (citing Globe Music Corp. v . J ohnson , 226 Miss. 329, 8 4 So. 2d 509 (1956), a n d Love Petroleum Co. v. A tlantic O il Producing Co. , 1 6 9 Miss. 259, 152 So. 829 (1934)). Here, Swartzf ager proposed and draf

ted the
agreem ent. He is an attorney , knowledgeable o f t he Statute o f F rauds, who held a superior position to Saul in term s of legal expertise and experience. W e f ind the chancellor did not

err in holding am

biguities o r vagaries against Swartzf ager as draf

ter. Nor was the chancellor wrong to f

ind the June 7, 2007 writing a valid, enf orceable contract.
D. Equitable Estoppel ¶26. Still, even if we disagreed with the f inding that a contract existed, Saul a lternatively pled equitable estoppel. And the chancellor f ound that Saul did, in f

act, detrim entally

rely on Swartzf

ager’s representations. So Swartzf ager is estopped f

rom deny ing the land deal.

5 S w artzf ag e r’s testim o n y is th e o n ly so u rce, i n t h e r e c o r d , o f th e claim th at S au l in ten d ed to “f

lip ” th e p ro p erty

. 1 2¶27. Equitable estoppel prevents a party f rom deny i ng any m a t erial f act, induced by his or her words or conduct, upon which another person relied and changed his o r her position and would suf f er injury if the denial or contrary assertion was a llowed. S ee Koval v. Koval , 576 S o . 2 d 1 3 4 , 137 (Miss. 1991). The doctrine is based on “public policy , f air dealing, good f aith and j ustice[ .]” I

d

. (citations om itted). It is prem ised on “the belief that a person should do what he say s he will do i n situations w here another party is i njured b y r eliance on the f irst party ’s representations.” Id

. at 138. And its a im is to “f orbid one t o speak against his own act, representa t i o n s, or com m itm e nts to the injury of one to whom t hey were directed and who reasonably relied thereon.” Id . at 137 (citations om itted). ¶28. To prove equitable e stoppel, a party m ust s how h e or she has changed position, to his

o r h er detrim e nt, in reliance upon the conduct of another. PMZ O i l v. Lucroy , 4 4 9 S o . 2 d 201, 206 (Miss. 1984) (citing Birm ingham v. Conger , 222 So. 2d 388, 392-93 (Miss.1969); Ivy v. Grenada Bank , 401 So. 2d 1302, 1303 (Miss.1981); and Thom as v. Bailey , 375 So. 2d 1049, 1052 (Miss.1979)). It requires we consider whether “it w ould be substantially unf air to allow a p erson t o deny what he has p reviously induced another to believe and take action on.” Id

. ¶29. Judge McGehee f

ound S aul had detrim entally relied on Swartzf ager’s p rom ises about both the Deerf

ield and Grand View Estates prop e r t ies—“Prom ises a n d of f e rs which [ Swartzf ager] f ully f ailed to perf

orm on f or the sole purpose o f m a king a substantial personal prof it.” As Judge McGehee saw it, Swartzf ager acted “with total disregard f or the welf

are

1 3o f [ S a u l a nd h i s wif e].” And “their entire lives” were “disrupted” by “[ Swartzf ager’ s ] unsolicited of

f ers and prom i ses.” Our review shows the chancellor’s f indings are supported. ¶30. S a ul detrim entally relied on Swartzf ager’s inducem ents—m ost notably selling h i s hom e. Furtherm ore, Swartzf ager was able to negotiate his deal with Bill J enkins, without interf erence or objection f

rom Saul, only because he represented to Saul that , i n e x c h ange f or his approval, Swartzf

ager would convey

to him the Grand View Estates property

. And Saul relied on these representations, acting u nquestionably to his d e t r i me n t

. Thus, Swartzf ager should not r e ap “the benef its of a contract while sim ultaneously try ing to avoid its burdens.” Cm ty. Bank o f Miss. v. Stuckey , 5 2 So. 2d 1179, 1183 ( ¶ 25) (Miss. 2010) (citations om itted). So, even if there was no enf orceable contract, Swartzf ager i s estopped f rom deny ing the Grand View Estates deal he struck with Saul.
II. 2007 Writing as a Prom ise ¶31. Swartzf

ager also tries to shirk his deal with Saul by characterizing the June 7, 2007 writing as an inter vivos gif t—a gif t he n ever delivered. Swartzf ager suggests that, because there was no written agreem ent between him s el f a n d Saul f or the Deerf

ield property , Saul could not legally

f orbear any

rights as consideration f

or the June 7, 2007 contract. ¶32. Generally , f

o rbearance to assert a claim that i s unenf orceable at law or equity

is not suf f i cient consideration. Stanley v. Sum ra l l , 1 6 7 M i s s. 714, 147 So. 786, 788 (1933) (collecting authorities). This rule however is not absolute, since “. . . f orbearance to assert

a claim which m ight reasonably b e doubtf ul is suf f icient consideration to support a prom ise.” Id

.

1 4¶33. Swartzf ager is correct that there was no w ritten a greem ent between him self and Saul f or the Deerf

ield property

. And the Statute of Frauds r equires a writt en c ontract f or land. See Milam v. Paxton , 160 Miss. 56 2 , 1 3 4 S o . 171, 172 (1931) (a claim f or specif ic perf orm ance t o convey l and requires a written c o n t r act). Again, however, Swartzf ager is equitably estopped f

rom deny ing his later Grand View Estates d eal with Saul. Equitable estoppel “is a well-established exception to our s tatute of f rauds.” PMZ Oil Co. , 449 So. 2d

at 206. Furtherm ore, the S tatute of Frauds does n ot bar e nf orcem e nt “of that to which a party has agreed.” Id

. (citing Martin v. Franklin , 2 45 So. 2d 602 (Miss. 1 9 7 1 ) , a nd Sanders v. Dantzler , 375 So. 2d 774, 776-77 (Miss. 1979)). W hile Saul could not prosecute a claim ,

s u c c e s sf u lly , f or specif ic perf orm ance, there are other potential r em edies that he coul d f orbear as consideration. See Powell v . C a m p b e l l , 912 So. 2d 978 (Miss. 2005); C. E. Frazier Constr. Co., Inc. v. Cam p bell Roofing & Metal Works, Inc. , 373 So. 2d 1036 (Miss. 1979). For exam

p le, like equitable estoppel, this Cour t s t a ted in Frazier that p rom issory estoppel “m ay a rise f

rom the m aking of a prom i se, e v en though without c onsideration, if it was intended that the prom ise should be relied upon and in f act it w as relied upon, and if a ref usal to enf

orce it would be virtually t o sanction the perpetuation of f raud or would result in other injustice.” Frazier , 373 So. 2d at 1038 (quoting 2 8 A m . J u r . 2 d E s t o p p el and
W aiver , § 48 (1966)). ¶34. So we f

ind Swartzf

ager’s argum ent r eally

holds no water. S aul could have asserted equity rights, certainly m ore than a m ere “dispute or controv e rsy ” between h im self and Swartzf ager over the D eerf

ield property

. See G unning v. R oyal , 59 Miss. 4 5 , 46 (1881).

1 5And the f

act that S aul f

orbore any claim or suit, regardless of its likelihood o f success, to the Deerf ield land is suf

f i cient c onsideration f

or the June 7, 2007 writing concerning the Grand View Estates property

. Second, S wartzf ager’s own hand-picked w ording in the June 7, 2007 writing acknowledges that “[ t]his contract is m ade after I h ave received good and valuable consideration

. . . .” (em

p hasis added). Thus, Swartzf ager’s own w ritten words express his then-held view that t he conside r ation was both already r eceived and valuable. For these

reasons, we f

ind the chancellor did not e rr by rejecting Swartzf ager’s notion that the June 7, 2007 writing was m erely an undelivered gif t inter vivos. And again, even if t he chancellor had erred i n this view, at a m inim um Saul proved his alternative claim of equitable estoppel.
III. Em otional Distress ¶35. Swartzf

ager next contends the chancellor w rongly awarded dam ages f or i ntentional

or negligent inf

liction o f em otional distress. He asserts Saul did n ot m ake a prim a f acie case f or either claim . But the chancellor disagreed, and so do we. ¶36. Judge McGehee specif i cally f ound Swartzf

ager’s intentional actions s urrounding the
agreem ent caused Saul signif icant em otional distress. There is no indication that dam ages

were awarded f

or negligent inf

liction o f e m otional distress, so we n eed not address that
argum ent. W e lim i t our discussion to intentional inf liction of em otional distress. ¶37. Ty pically , to support a claim f or i ntentional inf

liction of em ot i o nal distress, a “def endant’s c onduct m

ust be ‘wanton a nd wilf

ul.’” Speed v. Scott , 787 So. 2d 626, 630 (¶ 17) (Miss. 2001) (quoting Leaf River Forest P rods., Inc. v

. Ferguson , 6 62 So. 2d 648, 659 (Miss. 1 995)). It m

ust be the t y

pe of conduct that “ ‘ would evoke outrage or revulsion’” Id

.

1 6The acts m

ust be “ ‘so outrageous in character, and so extrem e in degree, as to go bey ond all possible bounds of decency , and to be regarded a s a t r o c i o u s , and utterly intolerable i n a civilized com m

unity .’” Id

. at (¶ 18) (quoting Pegues v . E m e r s o n E l e c. C o. , 913 F. Supp. 976, 982 (N.D. M i ss. 1996) (citations om itted)). This no d oubt is a high bar, but as Saul also notes, this Court apparently has “m oved away f rom this requirem ent” f

or b reach of contract claim s. See Univ. of

S. Miss. v. William s , 8 91 So. 2d 160, 172 ( ¶ 30) (Miss. 2004) (citations

om itted). ¶38. W h en the claim i s based o n a contract, a p laintif f m ust s how that (1) the em otional distress was a f

o reseeable consequence of the particular breach-of -contract and ( 2) that he

or she actually suf

f ered em otional dis t r ess; plaintif f s need not prove any phy sical

m anif estation. Id

. at 172-73 (¶ 31). However, the plaintif f m ust show specif

ic su f f ering during a specif

ic tim e f ram e; generalizations are not suf f icient. Id

. ¶39. Saul testif

ied that d uring the six to seven m onths f ollowing the collapse of his dealings with Swartzf

ager, both h e and his wif e w ere on “an em ot i o n a l r o l l e r c oaster.” Saul f elt betray ed, helpless, angry , and disappointed. He testif i ed about t h e s i g n if

icant stress his f a mi l y e n d u red by m oving f rom a house to a m

uch sm aller m o bile hom e . 6 T hese eve n t s certainly would cause a reasonable person great distress. Still, even if Saul’s s uf f ering and the disruption of his f

am ily ’s lif

e are categorized as m ere d iscom f ort, “ t estim o ny concerning ‘discom f orts’

. . . take[ s ] on a dif

f erent im portance when v iewed in light of the event which

6 S au l also testif

ied th at d u r in g th is tim e h e w as d iag n o sed w ith c an cer, an d h is w if e w a s d iag n o s ed a f

ew y ears l ater, an d th a t f

i g h t i n g can cer w as m o re d if f icu lt an d stressf

u l w h ile th ey

liv ed in th e m o b ile h o m e an d h ad th eir b elo n g in g s in sto rag e. 1 7engendered the m ental anguish.” Id

. a t 173 (¶ 32) ( citing Whitten v. C o x , 799 So. 2d 1, 10-11 (Miss. 2 000)). A n d h e re, the chancellor described t he events, p articularly Swartzf ager’s conduct, a s “self

- serving greed f

rom s tar t to f

inish”—som ething akin to “a portrait of egregious behavior.” He f ound S w artzf

a ger’s acts “were clearly and intentionally

m ade in self

-serving bad f

aith . . . with total disregard f or the welf

are of Sonny and Gail.” ¶40. We f

ind s upport f

or the chancellor’s f

inding that Swartzf

ager’s behavior wa s repetitive and egregious, resulting in the disruption of Saul’s and his wif

e’s lives, with the

s o l e r e s u l t b eing Swartzf ager’s f inancial benef

it. Saul’s em otional distress clearly was a f oreseeable result of Swartzf ager repeatedly breaking his prom ises. An d u n der our def erential review, regardless o f whether Saul’s e m otional-distress claim is considered in the contractual context or in the traditional sense, n othing in the record suggests the chancellor erred by f inding Swartzf

ager’s intentional and egregious acts caused Saul em otional distress.
W e thus f i nd the award is f

actually supported.
IV. Attorney ’ s Fees ¶41. Swartzf

ager f urther com

plains the chancellor incorrectly awarded attorney ’s f

ees to Saul. H e argues t hat, absent statutory or c ontractual authority , attorney ’s f ees are warranted only w here p unitive dam ages also are proper. See Miss. Power & L i g h t C o . v. Cook , 832 So. 2d 474, 486 (¶ 40) (Miss. 2002) (citing Aetna Cas. & Sur. Co. v. Steele , 373 S o. 2d 797, 801 (Miss. 1979); Sm ith v . Dorsey , 599 So. 2d 529, 5 49-50 (Miss. 1 992); Defenbaugh & Co. of Leland v. Rogers , 543 So. 2d 1164, 1167 ( Miss. 1989); and T ideway Oil Program s, Inc.,

1 8v. Serio , 431 So. 2 d 454, 456 (Miss. 1983)). He insists that, because punitive dam ages were

not awarded, the chancellor erred in awarding attorney ’s f ees. ¶42. Judge McGehee told the parties he w ould hold a separate hearing on attorney ’s f ees. A n d he asked each p arty to subm it brief s. Saul brief

ed the court on the issue, b u t Swartzf ager did not. W ith his brief , Saul provided af

f idavits f r om attorney s, describing the f orty -percent contingency f ee c harged by Saul’s attorney as f air and reasonable f

o r the work perf orm ed. And to s upport the nature of his attorney ’s legal work, Saul attached tim e sheets, depicting the various tasks perf o rm ed. The detailed work records listed the dates and tasks provided by each attorney , including the hours worked and eac h attorney ’s usual billable rate. Swartzf ager, by com

parison, o pted not to pursue a separate h earing on a ttorney ’ s f ees. Nor did he provide a brief or m em orandum contesting the f e e s. Instead, he agreed t o a j o i n t

m otion, with Saul, f

or a ruling on t he m atter—ef f ectively waiving the separate hearing. So,

at n o point did Swartzf

ager s eriously challenge t he issue of a ttorney ’ s f ees or contest Saul’s subm issions. ¶43. This Court has held attorney ’s f ees m a y be awarded in cases where punitive dam ages
are, o r would be, proper, but a re not actually awarded. See Aqua-Culture Technologies, Ltd.

v. H olly , 677 So. 2 d 171, 184-85 (Miss. 1996); see also Pursue Energy Corp. v. A bernathy , 77 So. 3d 1 094, 1100-01 (Miss. 2 011). Furtherm o re, punitive dam ages are not a prerequisite f or attorney ’s f

ees, and a c hancellor d oes n ot abuse his or h er discretion b y awarding such f ees where an award of punitive dam ages would have been justif ied. Aqua-Culture , 677 So. 2d at 184-85. Judge McGehee f ound Swartzf

ager’s actions were egregious—“ the ultim ate

1 9bad f

aith in disrupting som eone else’s lif e f or the sole p u r p o s e o f benef itting his own.” Clearly , punitive dam ages would h ave been justif ied h ere. So, we review Judge McGehee’s award of attorney ’s f

e es f or abuse of discretion. Id

. at 185. A nd based on the record and the chancellor’s f

indings, we see no abuse of discretion on this issue and af f irm

. V. Prejudgm ent Interest ¶44. Swartzf

ager’s f inal claim is that t he chancellor im pr o p e r l y awarded prejudgm ent interest. W hile a party is n o longer required t o plead with specif icity the date f

rom which prejudgm e nt interest accrues, a p a r t y m ust a ssert a dem and f

or prejudgm ent interest in the

a p p r opriate pleading. Bailey Brake Farm s, Inc. v. Trout , 116 So. 3d 1064, 1071 ( ¶ 2 5 ) (Miss. 2013) (citing Upchurch Plum bi n g , I n c . v . G reenwood Utils. Com m ’n , 964 So. 2d 1100, 1118 (¶ 45) (Miss. 2007)). Saul did not specif ically dem and prejudgm ent interest in either his original or am ended com plaint. He m e rely m ade a request f or general r elief

. And

a r equest f

or general r elief in a com

plaint seeking equitable relief does not give the def endant notice of a claim f

or p rejudgm ent interest. I d

. (citing M.R.C.P. 8); see also A rcadia Farm s P’ship v. Audubon Ins. Co. , 77 So. 3d 107, 115 (¶ 22) (Miss. Ct. App. 2011) (the purpose of M.R.C.P. 8 is to p rovide suf f icient notice of t he claim s and grounds upon which relief is sought). ¶45. Saul f

ailed to m ake a dem and f

o r prejudgm e nt interest, and no r ecord evidence exists

to show that Swartzf

a ger was on n otice of a claim f or p rejudgm ent interest. So the issue of

2 0prejudgm e nt interest was not bef ore the court, a nd the cha n c e l l o r erred b y awarding prejudgm e nt interest. 7
Conclusion ¶46. Swartzf

ager’s June 7 , 2 0 0 7 writing, along w ith S aul’s drawing, constitute a valid, enf orceable agreem ent. Swartzf ager, a s b o t h t h e agreem e n t’s d raf ter and a n attorney , is responsible f

or any d ef

iciencies or am

biguities. And, eve n if there was no enf orceable contract, Swartzf

ager is equitably estopped f rom d eny ing t he land deal. W e th u s f i n d t h e awards a nd related e xpenses, including t he intentional i nf liction o f em otional d istress award and attorney ’s f

e es, were p roper. However, the chancellor erred in awarding prejudgm ent i n terest. W e theref

ore af f i rm the trial court in part, reverse t he a ward of prejudgme n t interest, and rem and f

or a n ew ca l c ulation of dam a ges and attorney ’s f ees that does not include prejudgm ent interest, based on the evidence already subm itted to the trial court and consistent with this Court’s opinion. ¶47. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
W ALLER, C .J., DICKINSON, P.J., K ING, COLEMAN, BEAM, A N D CHAMBERLIN, JJ., C ONCUR. RANDOLPH, P.J., AND KITCHENS, J., N OT PARTICIPATING.

7 B ecau se w e rev erse an d ren d er th e p rej u d g m e n t i n t erest aw ard , w e n eed n o t d iscu ss w h eth er S au l’s d am ag es w ere liq u id ated w h en h e f iled h is c o m

p lain t o r if S w artzf

a g er acted in b ad f aith

. 2 1