BARNES, J., for the Court:
¶ 1. This dispute arose from the disbursement of $5 million in life-insurance proceeds to Dr. Robert "Trey" Sutton from various policies of Dr. Christopher Spraberry after Spraberry's accidental death. Audrey Spraberry Beasley, Spraberry's sister, originally sued Sutton, among others,
¶ 2. Spraberry was a dentist and the majority shareholder of Spraberry Dental Clinic in Gulfport, Mississippi. In May 2009, Spraberry died following an accident at his home. Beasley was Spraberry's sister and employed as office manager at the clinic for much of the time from January 2002 to January 2011.
¶ 3. In 2006, Sutton entered into dental practice at the clinic with Spraberry immediately upon receiving his license. He had a twenty-five percent partnership interest. Upon Spraberry's death, Sutton received $5 million in life-insurance proceeds. Sutton currently owns the clinic and practice, having purchased Spraberry's interest.
¶ 4. This dispute arose over the various insurance policies Spraberry had purchased; specifically, a $700,000 policy for which Beasley was the beneficiary, and which had lapsed, and to a lesser extent a $2 million policy that Beasley claims was erroneously in place and benefitted Sutton. In 2008, Kyle "Kraig" Kepper, an issuing agent at The Producer's Group Inc., assisted Spraberry in obtaining several life insurance policies from The Guardian Life Insurance Company (Guardian). In February 2008, Kepper helped Spraberry convert his preexisting $700,000 Guardian term policy to a whole-life policy (policy number 5937894) with Beasley as the primary beneficiary.
¶ 5. In November 2008, Spraberry discussed with Teri Eaton, a local insurance agent, the purchase of some other life insurance. They decided a $3 million policy would be sufficient to cover the purchase of the clinic in the event either dentist untimely passed away. Eaton's understanding was that the $3 million policy would replace any other policies used to fund the buy-sell agreement.
¶ 6. Once the Phoenix insurance policy was established, Beasley stated that Spraberry instructed her on December 7, 2008, to cancel the $1 million and $2 million Guardian policies because the $3 million Phoenix policy was replacing them. Thus, on December 8, 2008, Beasley said she drafted a letter for Spraberry that specifically requested cancelling the draft payments for the two policies. Beasley also listed two policy numbers in the letter, but instead of the number for the $2 million policy, she mistakenly listed the number for the $700,000 policy. The letter was faxed to Kepper, but Guardian never received the request to cancel the two policies. Two weeks after receipt of the letter, Kepper realized the policy numbers did not match the coverage amounts.
¶ 7. Guardian representative Denise Stoudt noted Spraberry did not have the authority to cancel the $2 million policy, since Sutton was its sole owner. Also, Sutton was not aware of the December 8 letter. On December 15, 2008, Spraberry executed two stop-payment orders to terminate automatic drafts for the premiums on the two Guardian policies in the letter: the $1 million and $700,000 policies.
¶ 8. Kepper testified that soon after he received the stop-payment notices about
¶ 9. On May 5, 2009, shortly before Spraberry died, in response to an inquiry from Beasley about the insurance policies Spraberry had through Kepper's agency, Kepper wrote that he knew "from speaking to [Sutton] that one of these [policies] was not intended to be cancelled." Kepper also stated that Beasley was aware of the cancellation of the $700,000 policy before Spraberry's death. Additionally, Beasley testified that before Spraberry's death, Sutton was aware of the $700,000 policy that had her listed as a beneficiary.
¶ 10. Spraberry died in an accident at his home on May 16, 2009. Beasley also claimed she confronted Sutton and told him that Spraberry intended to cancel the $2 million policy in favor of the $3 million policy, and not the $700,000 that named her as a beneficiary. Beasley testified that Sutton promised to "make it right." Beasley stated that after Spraberry died,
¶ 11. Beasley offers evidence that Sutton told others of his promise to pay her the $700,000. Tom Hensley signed an affidavit stating that the afternoon of Spraberry's funeral, he witnessed Sutton telling Spraberry and Beasley's father, Dr. Clyde Spraberry (also a dentist practicing at the clinic), "I just want you to know, Doc, I am going to honor all of [Sprayberry]'s wishes with regard to [Spraberry] and [Beasley]." Hensley was impressed by Sutton's statement and told Beasley about it. Clyde Spraberry also testified:
¶ 13. Beasley testified that she spoke with Sutton between May and December 2009 about the life-insurance payouts.
¶ 14. On May 11, 2010, Beasley claimed she met with Sutton and reminded him about statements he made of "mak[ing] it right" and Spraberry's intent for her to have $700,000 from the mistakenly cancelled life insurance policy. She stated that Sutton told her he would talk to the clinic accountant, but it was not a good business decision to simply write a check due to the tax consequences.
¶ 15. In the fall of 2010, Beasley and her husband had found a home they wanted to purchase. Sutton encouraged Beasley to buy it. When Beasley told Sutton she could not afford it, she claims Sutton "smiled and hugged [Beasley] and told [her] yes you can." Sutton denied this response.
¶ 16. On December 20, 2010, Beasley claims that she again discussed with Sutton payment of the remaining $600,000, and he further discussed his concern about the best way to pay her and avoid tax consequences. She stated that Sutton discussed with an attorney payout options that sounded good, and Beasley should let the clinic accountant know. On December 31, 2010, Beasley and her husband entered into a real-estate contract to purchase the above-mentioned home. She claimed they did so in reliance on Sutton's alleged promises to pay her the remaining $600,000.
¶ 17. In January 2011, Beasley and Sutton exchanged text messages regarding the life-insurance funds, which Beasley claims furthers her claims.
In mid-January, Beasley and Sutton had a final meeting at the clinic. Sutton told her the money he had already given her "was out of the goodness of his heart [and] not for any other obligation. And as far as he was concerned, all of the insurance money was paid out as it should be and he had no guilt about any of that." Realizing Sutton was not going to pay her the remaining $600,000, Beasley resigned as the clinic's office manager. At the end of January 2011, she also purchased the home she had contracted to buy.
¶ 18. Spraberry's widow did not know of the $3 million policy until May 2013, when she was advised by Beasley's attorney. It was her understanding that the funds of any policy listing Sutton as beneficiary were intended to go to her and her children as part of the buy-sell agreement on the dental practice.
¶ 19. In October 2011, Beasley filed her complaint against Sutton and certain insurance companies and agents
¶ 20. The appellate court applies a de novo standard of review when analyzing a trial court's grant or denial of a motion for summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss. 2009). The evidence will be "viewed in the light most favorable" to the nonmoving party. Id. A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." M.R.C.P. 56(c). The burden of proving there is no genuine issue of material fact is on the moving party. Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss. 2010).
¶ 21. Beasley argues that the trial court erred in granting summary judgment to Sutton on her claims of unjust enrichment,
¶ 22. Beasley argues in her complaint that Sutton was unjustly enriched due to her clerical mistake in the December 8, 2008 letter by inserting the wrong policy numbers. Because of this error, Sutton received $2 million
¶ 23. Unjust enrichment applies to situations "`where there is no legal contract and `the person sought 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.'"
¶ 24. On appeal, Sutton maintains that Beasley cannot establish that he was paid funds which he was not entitled to receive and that funds should have been paid to Beasley. Additionally, Sutton argues that Beasley cannot connect any action or wrongdoing by Sutton to the mistake of the lapse or cancellation of the $700,000 policy. Finally, he argues that Beasley is
¶ 25. It is undisputed that the clinic paid for the life-insurance premiums, and Sutton owned the $2 million policy and was the sole beneficiary. Even so, we find that there is a genuine issue of material fact for unjust enrichment. Here, there was no legal contract that Sutton pay Beasley the $700,000, but there were facts that could indicate an implied contract in equity that she receive these funds. Foremost, whether the $100,000 payment by Sutton to Beasley was a gift or partial payment of the $700,000 in lapsed life-insurance proceeds constitutes a jury question. Sutton claimed it was a gift because Spraberry's will only provided $100,000 to Beasley's brother Clay. Sutton explained he wanted Beasley to have the same gift, even though this gift was not specified in Spraberry's will. It could be surmised that the reason Beasley did not receive the $100,000 gift in Spraberry's will is because she would be the beneficiary of $700,000 in life-insurance proceeds. In contrast, Beasley claimed the $100,000 was partial payment for the $700,000.
¶ 26. While Sutton did not explicitly promise to pay Beasley $700,000, an inference of a promise to pay funds she should have received can be drawn through conduct. See Magnolia Fed. Sav. & Loan Ass'n, 342 So.2d at 1311. Beasley claimed that Sutton told her he "would make it right" regarding the lapse of the $700,000 policy. The $100,000 payment could imply that Sutton intended to pay Beasley the $700,000, knowing the $2 million he received was a windfall based in part on an error by Beasley. Moreover, it is unlikely that Spraberry intended Sutton to receive a total of $5 million upon his death,
¶ 27. Sutton argues Beasley's statements are "self-serving" and not backed by evidence, but we are not persuaded by this argument. Both Hensley and Clyde Spraberry also testified that Sutton wanted "to honor [Spraberry]'s wishes." Beasley also claimed Sutton stated he would "make it right" and follow through with Spraberry's wishes once the funds from the $2 million policy were received.
¶ 28. Beasley asserts that there are contested issues of fact regarding a claim for equitable estoppel. We agree. To establish equitable estoppel, a plaintiff "must show: (1) that [s]he changed [her] position in reliance upon the conduct of another, and (2) [s]he suffered detriment caused by this change of position in reliance
¶ 29. Sutton argues Beasley cannot prove a change in her position due to detrimentally relying on any conduct or representations by him, and she suffered no detriment even if she did rely on any of his actions or statements regarding the $700,000. We disagree, finding there are factual disputes on the elements of equitable estoppel.
¶ 30. While not explicitly promising to pay Beasley $700,000, Sutton made various statements in 2009 through 2010 that could be inferred as a promise to pay these funds, as discussed in the previous issue. Beasley has presented evidence from which a jury might find that Sutton's conduct and statements led her to believe that he would pay her these funds and that she changed her position, or decided to enter into a contract to purchase an expensive new home, in reliance on this conduct. Accordingly, summary judgment was improper.
¶ 31. Additionally, we disagree with the trial court's finding on this claim that "everyone" understood Sutton's $100,000 payment to Beasley was a gift; this fact is disputed by Beasley, and other evidence suggests it could have been a partial payment for the $700,000. "Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite." Williams v. Toliver, 759 So.2d 1195, 1198 (¶ 10) (Miss.2000).
¶ 32. There is also a factual dispute over whether Beasley detrimentally relied on Sutton's statements and conduct when she entered into a contract to purchase a new home. In the fall of 2010, when Beasley lamented to Sutton that she could not afford a home that she and her husband wanted, Sutton told her "yes you can." On December 31, 2010, Beasley claimed she and her husband entered into a real-estate contract in reliance upon Sutton's supposed promises to pay her the remaining $600,000. In January 2011, Beasley realized Sutton would not be paying her any funds, but she had already entered into the housing contract. She also suddenly resigned from her job at the clinic. The affidavits of Clyde Spraberry (father to Spraberry and Beasley) corroborates the timing of Beasley's own testimony and that Sutton reneged on an offer to pay her further funds. In a conversation with Sutton at the end of January 2011, Clyde stated:
The real-estate contract indicated if Beasley had reneged on it, she would be liable for breach of contract. Accordingly, we find a genuine issue of material fact regarding
¶ 33. Beasley claims there is a genuine issue of material fact regarding this claim. We disagree. "[T]he elements of promissory estoppel are: (1) the making of a promise, even though without consideration, (2) the intention that the promise be relied upon and in fact is relied upon, and (3) a refusal to enforce it would virtually sanction the perpetuation of fraud or would result in other injustice." Thompson v. First Am. Nat'l Bank, 19 So.3d 784, 788 (¶ 19) (Miss.Ct.App.2009) (citing C.E. Frazier Constr. Co., 373 So.2d 1036, 1038 (Miss.1979)). "Promissory estoppel differs from equitable estoppel `in that the representation is promissory rather than as to an existing fact.'" Weible v. Univ. of S. Miss., 89 So.3d 51, 67 (¶ 52) (Miss.Ct.App. 2011) (quoting Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1180 (¶ 52) (Miss.Ct. App.2007)).
¶ 34. Here, there is no evidence that Sutton ever made an explicit promise to Beasley to pay her $700,000; therefore, summary judgment was proper for this claim. As discussed earlier, the promise was merely implied by various comments and actions made by Sutton, and the figure of $700,000 was never expressly mentioned. Accordingly, we affirm summary judgment on this claim.
¶ 35.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MAXWELL, FAIR, AND JAMES, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J. ISHEE, J., NOT PARTICIPATING.
WILSON, J., dissenting:
¶ 36. For the reasons I explain below, I would affirm the circuit court's order granting summary judgment in favor of Sutton as to all claims. Thus, I respectfully dissent.
¶ 37. The premise of Beasley's unjust enrichment claim is that Spraberry mistakenly cancelled a $700,000 whole-life policy that named her as the beneficiary when he intended to cancel a $2 million term policy that named Sutton as the beneficiary. I agree with the majority that there is evidence in the record from which a jury could so find. In addition, if Spraberry had been the owner of both policies, paid the premiums on both policies, and had the right to cancel both policies, then I could agree that Beasley's unjust enrichment claim should survive summary judgment. If those were the facts, then Sutton's receipt of the $2 million fairly could be viewed as an unjust windfall, and "good conscience and justice" might require him to "deliver to" Beasley at least what she lost as a result of Spraberry's mistake. Omnibank of Mantee v. United S. Bank, 607 So.2d 76, 92 (Miss.1992) (quoting Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986)). That would be a relatively easy case to decide.
¶ 38. The case before us is much more difficult. The facts are that Spraberry was not the owner and therefore lacked authority to cancel the $2 million policy. The policy named Sutton as the owner (and beneficiary) and provided: "While the insured is living, ... the owner alone has the right to receive all benefits and exercise all rights this policy grants...." (Emphasis added.) The policy application, which the policy incorporates by reference,
¶ 39. It is true that Spraberry was a seventy-five percent shareholder in the clinic (Sutton owned the other twenty-five percent) and so, as a practical matter, he likely could have caused the clinic to stop paying the premiums on the policy. However, that would have required a discussion with Sutton, and there is no evidence that such a discussion ever occurred. Moreover, had it occurred, Sutton would have had the option of keeping the policy in force by paying the premiums himself.
¶ 40. On these facts, Sutton's receipt of benefits under the policy is not an unjust windfall. It is simply his right as the owner of the policy, and Beasley has no claim — equitable or otherwise — on these funds. The majority's conclusion that the doctrine of unjust enrichment applies seems to derive from its view that "it is unlikely that Spraberry intended Sutton to receive a total of $5 million upon his death, when Sutton was only two years out of dental school." However, what "Spraberry intended" with regard to the $2 million policy is beside the point because he lacked the authority to cancel it. Thus, even if the $700,000 policy naming Beasley as the beneficiary was cancelled by mistake, Sutton's policy did not remain in force by mistake. It remained in force because Sutton, not Spraberry or Beasley, owned the policy. Therefore, while Beasley's inability to recover under the cancelled policy may appear "unjust" in the everyday sense of the word, it does not follow that Sutton has been unjustly enriched. Nor does the law compel him to pay Beasley simply because he was "enriched" pursuant to his own insurance policy and so can afford to pay her.
¶ 41. The gravamen of Beasley's equitable and promissory estoppel claims is that after Spraberry died, Sutton made statements that led Beasley to believe that he would pay her $700,000, and that Beasley then bought a house in reliance on Sutton's statements. I agree with the circuit judge that Sutton is entitled to summary judgment on these claims because Beasley failed to create a genuine issue of material fact on the element of detrimental reliance.
CARLTON, J., JOINS THIS OPINION.
Omnibank, 607 So.2d at 92; see also 1 Dan B. Dobbs, Law of Remedies § 4.1(2) at 557 (2d ed. 1993) ("The fundamental substantive basis for restitution is that the defendant has been unjustly enriched....").