DICKINSON, Presiding Justice, for the Court:
¶ 1. Ernie and Eugene Barriffe seek compensation for money they gave to Lawson Nelson to start a landfill business, and for improvements they made to an apartment on his land. The chancellor found that Nelson held the money and improvements in a constructive trust. But because the Barriffes failed to establish the existence of a constructive trust, we reverse in part and render.
¶ 2. This family stew began from a familiar recipe: Trusting family members enter financial transactions with each other and later discover that their recollections and expectations do not match. And because the family members failed to put anything in writing, the courts are left to sort it out.
¶ 3. The story began when a New Orleans lawyer, Eugene Barriffe, and his wife, Ernie, gave money to Ernie's brother, Lawson Nelson, to start a landfill business in Jackson County, Mississippi. The Barriffes testified that Lawson approached them for an initial "investment" of $100,000 — and later, a second "investment" of $65,000 — into his idea to start a landfill business. In return, the Barriffes understood they were to receive two-thirds of the profits from the landfill business, with payments to begin when Eugene retired. Nelson denied the conversation and denied receiving the "investments" from the Barriffes.
¶ 4. During the trial, the chancellor challenged Eugene's description of the transaction as an investment, noting "[y]ou said it was an investment. It sounds like a loan to me." The chancellor emphasized that "[i]t looks like a loan. It smells like a loan. It walks like a loan. It talks like a loan...." Eugene flatly rejected this characterization and said he "made absolutely sure that everybody understood it was not a loan."
¶ 5. Lawson used part of the money to purchase 240 acres. Approximately one year later, Lawson put eighty of the 240 acres in Ernie's name. He later claimed the transfer was for $60,000. In this strange twist to the story, the Barriffes claim they did not give Nelson the $60,000, and that they were unaware of the land
¶ 6. When Lawson sold the landfill business nine months later, Ernie said she "assumed" Lawson would put her and her husband's interest "in an escrow account so that [they] would have it when [they] asked him for it." Eugene admitted that he knew Lawson sold the landfill in December 2002, but that he never asked for their two-thirds share of the landfill "[b]ecause the way it had been agreed on was our money was going to come after I retired." The chancellor then asked Eugene when he retired, and Eugene said he retired when he "hit 65 in 2005[,] which was the year of the hurricane. And we ... didn't make our demand, Judge."
¶ 7. When the Barriffes later asked Nelson about their share of the proceeds of the sale of the landfill, Nelson denied they were entitled to anything.
¶ 8. After Hurricane Katrina destroyed their home in New Orleans, Ernie and Eugene moved into an apartment on Lawson's property. The Barriffes testified that they made substantial improvements to the apartment and that Lawson had agreed to convey the property to them in the future. Lawson admitted that he told Ernie that she could live in the apartment for the rest of her life, but that, after he died, he planned to leave the building to his son Dwight.
¶ 9. In 2009, the Barriffes asked Lawson to deed the property with the apartment to them. According to Ernie, Lawson became furious and refused to deed the property to them, deeding it instead to his sons. Lawson's refusal sparked this litigation filed by the Barriffes on June 10, 2009, against Nelson and the sons.
¶ 10. During the course of the litigation, Lawson died, and his estate was substituted as the real party in interest. Throughout the trial the chancellor sporadically enforced time limits on the parties' ability to examine witnesses. In one important exchange between the Nelsons' attorney and Eugene, the chancellor admonished the attorney to "[a]sk your next question... You're beyond your 30 by about eight minutes."
¶ 11. After the trial, the chancellor entered an order finding that "the $165,000 given to Lawson by the Barriffes was a loan and not an investment." And "[a]s to the apartment the Barriffes built inside the metal building on the Wildwood property, the Court finds that Lawson intended to convey this property to the Barriffes." The Court then imposed two constructive trusts for the Barriffes — one for the $165,000 when the Barriffes transferred their eighty acres to Lawson to sell, and the second, which was in the nature of an equitable lien on the apartment and property, for $72,645.18.
¶ 12. Displeased with the chancellor's judgment, the Nelsons moved for reconsideration or a new trial. The chancellor ordered a new trial and re-opened discovery, stating in his order that he granted the new trial to correct "an error in limiting the Plaintiffs' and the Defendants' examination and cross examination of the witnesses and for reasons stated in the transcript, record[,] and judgments of the Court."
¶ 13. After the testimony and other proof in the second trial — which was largely consistent with that of the first trial — the chancellor found that there were actually four constructive trusts, because "the Nelsons[,] through their position of trust and confidence as [a] family[,] received substantial sums of money from the Barriffes
¶ 14. The chancellor said the first constructive trust began in August 1986 when Lawson bought the landfill with the Barriffes' $100,000 check. While the Barriffes never produced this check, the chancellor "weighed the testimony and evidence around this transaction and finds it credible since it was uncontroverted that Ernie was at the bank when the transaction took place." The chancellor found that the Barriffes' action on this trust was barred by the statute of limitations.
¶ 15. Next, the chancellor found that the second constructive trust began when the Barriffes built the first floor of the apartment in the metal building in the mid 1990s. The chancellor likewise found that the Barriffes' action was barred by the statute of limitations.
¶ 16. The chancellor found that the third constructive trust began in March 2002 when the Barriffes transferred eighty acres to Lawson. The chancellor said Lawson admitted the Barriffes gave him at least $60,000 but there was no proof the Barriffes received any money when Lawson sold the landfill. The chancellor found that the Barriffes' action on this constructive trust was timely and not time-barred.
¶ 17. And finally, the chancellor found that the fourth constructive trust began in December 2005 when the Barriffes spent $36,221.09 on a second-floor addition to the apartment. The chancellor found that "[a] constructive trust is appropriate in this instance due to the fact the statute of frauds prevents an actual award of the Wildwood property to the Barriffes." The chancellor found that the Barriffes' action on this constructive trust was also timely.
¶ 18. Ultimately, the chancellor awarded the Barriffes a "joint and several judgment" for $96,221.09 ($60,000 from the third constructive trust plus $36,221.09 from the fourth constructive trust) against the Estate of Lawson Nelson and Nelson's two sons (Nelsons).
¶ 19. Following the chancellor's second judgment, both parties appealed to this Court. The Barriffes raise four issues in their appeal: First, they argue that the chancellor erred in granting a new trial; second, that he should have awarded attorneys' fees; third, that he erred in his application of the statute of limitations; and finally, that the statute of frauds does not apply to constructive trusts.
¶ 20. The Nelsons raise three issues in their cross-appeal: First, that the trial court erred in finding that a third constructive trust was created in March 2002; second, the trial court erred in giving the Barriffes' $96,221; and third, that the chancellor erred in imposing an equitable lien on the apartment.
¶ 21. First, we will review the chancellor's decision to grant a new trial. Second, we will review the chancellor's analysis of the agreements between the Barriffes and Lawson with respect to constructive trusts. And, finally, we will review the chancellor's decision to impose an equitable lien against the property for the improvements made by the Barriffes. Because issues two and three are dispositive, we will not address the chancellor's decision on attorneys' fees.
¶ 22. Mississippi Rule of Civil Procedure Rule 59 provides that "[a] new trial may be granted ... in an action tried without a jury, for any of the reasons for which rehearings have heretofore been
¶ 23. In this case, the chancellor believed that a new trial was needed because he had sporadically enforced arbitrary time limitations throughout the trial. The chancellor believed a new trial and "a new day" would help him reach the correct result in this case.
¶ 24. This is a close call. We see little evidence in the record that the chancellor was unfair to either side with respect to time limitations, and we note that his threats were mostly unenforced. But we cannot say that the chancellor exceeded his broad authority by granting a new trial in this case. Therefore, we will review the chancellor's second judgment and findings of fact. We note that, even if we found the chancellor had erred in granting the second trial, our decision and disposition of this case would be no different.
¶ 25. The Barriffes argue that they are entitled to a constructive trust for money they invested in Lawson's landfill business. The Barriffes' testimony throughout the trial about their dealings with Lawson was often uncertain and unclear. But the Nelsons consistently have disputed the very existence of the investments, arguing that there was no loan, investment, or constructive trust.
¶ 26. Whether a constructive trust exists is a question of law, which this Court reviews de novo.
¶ 27. A constructive trust "is a means recognized in our law whereunder one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs."
¶ 29. The chancellor characterized the transfers as a loan, which is a contract.
¶ 30. We pause here to point out our disagreement with the dissent. Even were we to accept the dissent's view that the new trial was unwarranted, we cannot agree with its conclusion that the issue of breach of contract was not raised in the first trial. In his findings of fact at the conclusion of the first trial, the chancellor found: "The Court finds the $165,000.00 given to Lawson by the Barriffes was a loan and not an investment." No citation of authority is necessary for the proposition that a loan indeed is a contract.
¶ 31. We repeat for emphasis: Other than the Barriffes' testimony that the $165,000 was transferred in exchange for Nelson's promise to provide them two-thirds of the profits, the record is void of any evidence of any other purpose for the transfer. The chancellor certainly had discretion to find that the transfer of money was never made. But, having found it was made, the chancellor's discretion does not stretch so far as to allow him simply to make up a reason for the transfer that is unsupported by evidence in the record. He was required to render an opinion based upon the evidence presented.
¶ 32. The Nelsons consistently have argued that the Barriffes' claims are barred by the statute of limitations. The statute of limitations on a claim begins to run when the cause of action accrues and becomes enforceable.
¶ 33. At the trial, Eugene testified several times that he retired when he turned sixty-five sometime in 2005. By 2005, Lawson already had sold the landfill, and Eugene was entitled to his entire share of the landfill profits. Under Mississippi's three-year statute of limitations for breach of contract, the Barriffes must have filed suit to recover their interest in the landfill within three years of Eugene's retirement. So, even if Eugene retired on December 31, 2005, the latest the Barriffes could have filed suit to enforce their agreement with Lawson was December 31, 2008. Because they waited to file suit until June 2009, the Barriffes' cause of action expired, and Lawson's promise to pay the Barriffes their two-thirds interest became unenforceable.
¶ 34. We find no facts in this case support the creation of a constructive trust and that the chancellor erred when he created one for the benefit of the Barriffes. The Barriffes proved nothing more than that Lawson breached a unilateral contract, and the Barriffes did not bring their action for breach of this promise within three years of Eugene's retirement.
¶ 35. During the trial, the Barriffes testified on numerous occasions that, in exchange for the improvements they made to the apartment, Lawson had agreed to convey the property to them. Lawson disputed this verbal contract. Regardless, the Barriffes' claim fails because they have no written agreement.
¶ 36. We review a chancellor's decision to impose an equitable lien de novo.
¶ 37. The Barriffes claim they had an oral agreement with Lawson that they could make improvements on his land and that he would transfer the land to them. This alleged contract fails under the statute of frauds. An equitable lien cannot save a contract that violates the statute of frauds.
¶ 38. Further, the Barriffes constructed and made improvements to an apartment they knew was on land that belonged to Lawson, so they do not qualify for the protection granted those who have a good-faith — though mistaken — belief that they were making improvements to their own land.
¶ 39. The chancellor did not abuse his discretion when he granted the Nelsons' motion for a new trial. However, the chancellor did err as a matter of law when he imposed a constructive trust for the benefit of the Barriffes and when he imposed an equitable lien on the Nelsons' property. We affirm the parts of the chancellor's judgment granting the motion for new trial and denying the Barriffes' attorneys' fees. In all other respects, we reverse the chancellor's judgment in this case and render judgement in favor of the Nelsons.
¶ 40.
COLEMAN, Justice, dissenting:
¶ 41. In my opinion, the chancellor erred in granting the Nelsons' motion for a
¶ 42. In June 2009, Ernie and Eugene Barriffe filed suit against Lawson Nelson and his two sons, David and Dwight, alleging constructive trust, unjust enrichment, and fraudulent transfer. The first trial was held in April 2011. The Barriffes sought compensation for the amount spent constructing the Wildwood apartment, estimated to be $75,000. The Barriffes testified that Lawson had offered them the space inside his metal building to construct an apartment and that he promised to convey the property to them when he died. In addition, the Barriffes claimed they were entitled to two-thirds of the amount of the landfill sale. Ernie and Eugene both testified that they contributed a total of $165,000 to the landfill business. The chancellor found "no proof that the Barriffes acquired a two-thirds interest in Lawson's landfill business." However, he did find evidence that the Barriffes had given Lawson $165,000, and he concluded that the "Barriffes had a reasonable expectation that their $165,000 would be paid back to them." The chancellor held that the Nelsons had been unjustly enriched. He found two constructive trusts, and he held that the ten-year statute of limitations for constructive trusts had not expired. He entered a judgment in favor of the Barriffes in the amount of $237,645.
¶ 43. The Nelsons filed a motion for reconsideration or for a new trial. The chancellor granted the Nelsons's motion for a new trial and reopened the judgment to allow additional discovery. The trial court conducted the second trial in September 2011. Further testimony, was heard from Ernie, Eugene, David, and Dwight, but the testimony added very little, if anything, to the evidence adduced at the first trial. After the second trial, the chancellor concluded that there had been four constructive trusts, but the statute of limitations had expired as to two of them. Based on these findings, the chancellor reduced the award to the Barriffes to $96,221. Both parties appealed the second judgment.
¶ 44. The Barriffes assert that the chancellor erred in granting a new trial, and they ask the Court to reverse the second judgment and enforce the original judgment. The Nelsons cross-appealed, contending that both of the chancellor's judgments were wrong and that the Barriffes are not entitled to any relief; they ask the Court to reverse and render. It is my opinion that the chancellor abused his discretion when he granted the Nelsons' motion for a new trial. Further, the chancellor's first judgment in favor of the Barriffes was supported by substantial evidence and, in my opinion, that judgment should be enforced.
¶ 45. The grant or denial of a Rule 59 motion for a new trial is reviewed for abuse of discretion. Rogers v. Morin, 791 So.2d 815, 820 (¶ 11) (Miss.2001). The abuse of discretion standard is highly deferential to the trial court, but this Court
¶ 46. The majority's analysis of the new trial issue consists of five sentences with no citation to legal authority. (Maj.Op.¶ 24.) The majority writes that "[t]his is a close call," then admits that the time limits were not unfair and that the chancellor did not enforce them, but goes on hold without further explanation that the chancellor did not abuse his discretion in granting a new trial. Id. With all due respect, the analysis is insufficient. While it may be "a close call" — like many issues addressed by this Court — the decision can be made with a complete review of the transcript and the relevant caselaw.
¶ 47. On the second day of the first trial, the chancellor accused the attorneys of not being prepared for trial and, after the attorneys took more than a day to question the first witness, the chancellor limited the time for questioning the remaining witnesses. Mississippi Rule of Evidence 611 provides:
Miss. R. Evid. 611(a). Rule 611 "is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process." Moore v. Moore, 757 So.2d 1043, 1046 (¶ 14) (Miss.Ct.App.2000).
¶ 48. In Moore v. Moore, the defendant claimed that his due process rights were violated because the trial judge limited the trial to one day. Id. at 1046 (¶ 11). The Court of Appeals found no merit to the claim because the defendant knew the time limit from the beginning of trial, he did not object, the defense called seven witnesses, the defendant testified, and there was "no indication in the record ... that the time limits placed on the trial by the chancellor were problematic." Id. at 1046 (¶¶ 12-14). The Court of Appeals said if the defendant's "trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved" for the appellate court to review. Id. at 1047 (¶ 14). The Court of Appeals recognized that defendants have "a right to introduce evidence at a hearing[,]" however, "if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor's control of evidentiary presentations." Id. at 1046 (¶ 13) (quoting Morreale v. Morreale, 646 So.2d 1264, 1270 (Miss.1994)). See also Gray v. Pearson, 797 So.2d 387, 394 (¶ 29) (Miss.Ct.App.2001) (court did not overturn chancellor's ruling limiting each side to two hours of trial testimony because appellant did not make a timely objection or make a record of evidence she would have presented without the time limit).
¶ 49. In the instant case, although the chancellor gave time limits for three witnesses, he did not adhere strictly to the time limits he set. The attorneys were allowed to exceed the allotted time when they questioned Eugene, and although the chancellor noted the time, he did not instruct them to stop. The chancellor limited the time to ten minutes for each side
¶ 50. Rule 59 provides that a new trial may be granted "in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi." Miss. R. Civ. P. 59(a)(2). Rule 59 must be read and interpreted in light of Rule 61, which provides:
Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that "does not affect the substantial rights of the parties" is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) "a mistake of law or fact has been made" or (2) "injustice would attend allowing the judgment to stand." Mayoza v. Mayoza, 526 So.2d 547, 549-50 (Miss.1988).
¶ 51. The chancellor acted within his discretion and did not err by setting time limits for witness testimony that he believed — and the record confirms — was cumulative. The Nelsons did not object to the time limits at trial nor did they provide a proffer of testimony. The Nelsons did not use even half the time allotted for questioning David on direct examination, they waived their time for cross-examining both David and Dwight, and the chancellor did not enforce the time limit for questioning Eugene. The Nelsons were not prejudiced by the time limits, and the limits did not amount to a violation of due process. They had ample time to present their defense
¶ 52. Because I would hold that the chancellor erred in granting the new trial, I look at only the findings made after the first trial. At the end of the first trial, the chancellor found that there was no evidence to support that the Barriffes had a two-thirds interest in the landfill business. However, he found that the Barriffes had given Lawson $165,000, which had not been repaid. That is, he found as fact that the money had not been returned and the Nelsons retained possession of it. His finding was made in the context of determining that the Nelsons were unjustly enriched and not, as would support the reasoning of the majority, in the context of whether a contract to repay it existed. The Nelsons were the beneficiaries of that money, and they had been unjustly enriched by that amount. In my opinion, the chancellor's finding of a constructive trust as to the $165,000 investment in the landfill business was supported by substantial evidence.
¶ 53. "[O]ur standard of review of findings of fact, including those regarding a constructive trust, is limited in that we must not set aside a chancellor's findings of fact so long as they are supported by substantial credible evidence." Davidson v. Davidson, 667 So.2d 616, 620 (Miss. 1995). Even if the appellate court may have found otherwise in the original matter, where the chancellor's findings of fact are supported by substantial credible evidence, those findings will not be disturbed on appeal unless they are manifestly wrong, clearly erroneous, or the wrong legal standard was applied. City of Picayune v. S. Reg'l Corp., 916 So.2d 510, 518-19 (¶ 22) (Miss.2005). However, a chancellor's findings regarding the applicability of constructive trusts are questions of law, which this Court reviews de novo. Davidson, 667 So.2d at 620. Thus, the application of constructive trusts is a question of law, but the factual findings underlying that application are questions of fact.
¶ 54. The majority completely disregards the chancellor's findings of fact and makes its own findings, which this Court does not have the authority to do, in order to reach a its chosen conclusion that the parties had a contract. The parties have not once asserted that a contract existed. In a glaring twist of legal irony, had the Nelsons argued in the instant appeal that a contract had been formed, the Court quite possibly would have declined to consider the argument, as, on appeal, parties waive matters not presented to the trial court. Fowler v. White, 85 So.3d 287, 293 (¶ 21) (Miss.2012) (quoting Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000)) ("This Court
Id. (emphasis added). It cannot be said that the chancellor's findings are against the overwhelming weight of the evidence or manifestly erroneous. The majority fails even to mention the standard, which is perhaps why it was able to disregard the chancellor's findings so easily.
¶ 55. The chancellor found that the Barriffes had given Lawson $165,000, which had not been repaid. Therefore, the Nelsons had been unjustly enriched, and the chancellor imposed a constructive trust. The majority dismisses the chancellor's finding and concludes that "the Barriffes' agreement to provide the $165,000 in exchange for Nelson's promise was nothing more than a contract." (Maj.Op. ¶ 29.) However, the existence of a contract is a question of fact, which is to be made by the finder of fact. 75A Am. Jur. 2d Trial § 791 (1991). See also Mauldin Co. v. Lee Tractor Co. of Miss., Inc., 920 So.2d 513, 515 (¶ 8) (Miss.Ct.App. 2006) (quoting Hunt v. Coker, 741 So.2d 1011, 1014 (¶ 6) (Miss.Ct.App.1999) ("The existence of a contract is a question of fact that is to be determined by a jury, or a trial judge when a trial is conducted without a jury.")). We have held:
Jackson HMA, LLC v. Morales, 130 So.3d 493, 497 (¶ 14) (Miss.2013). Here, the chancellor was the finder of fact, rather than a jury. To say that the instant case presents "conflicting evidence" is a gross understatement. Therefore, whether a contract existed is a question for the chancellor, not the Supreme Court.
¶ 56. For a valid contract to exist, the following elements must be present: "(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation." Rotenberry v. Hooker, 864 So.2d 266, 270 (¶ 13) (Miss.2003) (emphasis added) (quoting Lanier v. State, 635 So.2d 813, 826 (Miss.1994)). Based on the chancellor's findings, there is no evidence of consideration,
¶ 57. The majority relies on the chancellor's findings after the second trial, where the chancellor seemed to recognize that the Barriffes' investment was in exchange for a two-thirds interest in the landfill business. Relying on those facts, the majority may be correct that the agreement between the Barriffes and Lawson was a contract. However, none of the parties ever argued that they had a contract, and the chancellor did not make any findings about a contract. In the only pronouncement following either trial regarding the credibility of the evidence that the money was given in exchange for a two-thirds interest (in either the business or the profits of the business), the chancellor following the first trial expressly found the evidence that the Barriffes gained an interest in the business not to be credible. Lowrey v. Lowrey, 25 So.3d 274, 297 (¶ 59) (Miss.2009) ("A chancellor sits as a fact-finder in resolving factual disputes, and is the sole judge of the credibility of witnesses."). The chancellor found the existence of a constructive trust, and the existence of a contract is a question of fact wholly unaddressed by the court below. Rather than usurping the chancellor's duty and imposing a contract, the majority should remand the case for the chancellor to determine whether a contract existed.
¶ 58. The Barriffes asserted, and the chancellor found, that a constructive trust was created. Taking all of the evidence and testimony into account and placing great weight on the close relationship between the two siblings, the chancellor concluded that the evidence was sufficient to prove that the Barriffes had given Lawson $165,000, and that the Nelsons had been unjustly enriched because there was no evidence that the Barriffes had been repaid. He held that a constructive trust came into being on March 18, 2002, when the Barriffes conveyed the eighty acres back to Lawson. After the first trial, the chancellor found that the ten-year statute of limitations had not expired when the Barriffes filed suit, and the chancellor awarded the Barriffes $165,000.
¶ 59. Sufficient evidence supports the chancellor's findings that the Barriffes gave Lawson at least $165,000, which was not repaid, and that the Nelsons have been unjustly enriched by that amount. "[T]he basis for an action for `unjust enrichment' lies in a promise, which is implied in law, that one will pay to the person entitled thereto [that] which in equity and good conscience is his." Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987) (quoting Magnolia Fed. Savings & Loan v. Randal Craft Realty, 342 So.2d 1308, 1311 (Miss.1977)). The Court has explained unjust enrichment as follows:
Dew v. Langford, 666 So.2d 739, 745 (Miss. 1995) (quoting Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986)). Where unjust enrichment is found, the party making the claim is entitled to restitution. Powell v. Campbell, 912 So.2d 978, 982 (¶ 14) (Miss. 2005); Estate of Johnson, 513 So.2d at 926. In other words, the claiming party should be "restored to his or her original position prior to the loss[.]" Black's Law Dictionary 1313 (6th ed. 1990).
¶ 60. Often, where unjust enrichment is found, a constructive trust is imposed. A constructive trust is an equitable remedy intended to prevent unjust enrichment. See McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 24) (Miss.2000); Griffin v. Armana, 687 So.2d 1188, 1195 (Miss.1996); Allgood v. Allgood, 473 So.2d 416, 421-22 (Miss.1985); Saulsberry v. Saulsberry, 223 Miss. 684, 78 So.2d 758, 760-61 (1955).
Joel v. Joel, 43 So.3d 424, 431 (¶ 23) (Miss. 2010) (quoting McNeil, 753 So.2d at 1064 (¶ 24) (quoting Saulsberry, 78 So.2d at 760)). "Any transaction may provide an appropriate setting for creating a constructive trust; their forms and varieties are `practically without limit.'" Alvarez v. Coleman, 642 So.2d 361, 367 (Miss.1994) (quoting Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990)).
¶ 61. "[C]lear and convincing evidence is required to establish a constructive trust." Davidson, 667 So.2d at 620 (citations omitted). Mississippi law on constructive trusts is well-established.
Griffin, 687 So.2d at 1195. "It is the relationship plus the abuse of confidence imposed that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused." Davidson, 667 So.2d at 621 (quoting Lipe v. Souther, 224 Miss. 473, 80 So.2d 471, 475 (1955) (emphasis added)).
¶ 62. The chancellor's finding that the facts gave rise to a constructive trust is supported by substantial evidence. Sufficient evidence existed to find a close relationship between Ernie and Lawson and an abuse of that relationship. It is undisputed that Lawson and Ernie had a close relationship, and the Barriffes trusted Lawson to take care of them and to handle their money appropriately. It is also evident that Lawson gave no consideration for the $165,000 from the Barriffes — the Barriffes were not repaid, nor did they get an interest in the business, so no consideration existed. The definition of a constructive trust is broad. Constructive trusts
¶ 63. The statute of limitations for constructive trusts is ten years. Miss.Code Ann. § 15-1-39 (Rev. 2012).
¶ 64. The statute of limitations for a constructive trust begins to run when one party commits a wrong that results in another party having a claim. See Thames v. Holcomb, 230 Miss. 387, 92 So.2d 548, 551 (1957) (statute of limitations begins to run "from the time the wrong is committed by which the party becomes chargeable by legal implication") (quoting Cooper v. Cooper, 61 Miss. 676, 696 (1884)). In Thames v. Holcomb, the Court held: "The repudiation of an implied or constructive trust is not necessary to set the statute of limitation in operation. `The statute begins to run [in such trusts] from the time the act or acts were committed by which the actor becomes chargeable.'" Thames, 92 So.2d at 552 (quoting Rimmer v. Austin, 191 Miss. 664, 4 So.2d 224, 225 (1941)). While repudiation of the trust may not be necessary to start the running of the statute of limitations, in some cases, such as here, repudiation may be the act by which the actor becomes chargeable. Before Lawson's denial that the Barriffes were owed anything, there was no cause of action against which the statute of limitations could run.
¶ 65. The original agreement between the Barriffes and Lawson did not create the constructive trust. The trust came into being when Lawson refused to honor the agreement. At that point, Lawson became a "trustee" holding property that rightfully belonged to the Barriffes. The cause of action accrued as to the landfill profit either when Eugene retired (according to their agreement that was when the Barriffes would get their money) or when the Barriffes asked for a deed to the Wildwood property and were told they would not get anything. Although they did not ask for the landfill money at that time, it was evident that Lawson was not going to give them anything.
¶ 66. In Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960), the statute of limitations began to run one day after the alleged promise to convey was made. In that case, Sol Mark purchased forty acres and half the mineral rights thereon. Rankin, 120 So.2d at 437. It was undisputed that Mark was to get his deed for land on the day of the purchase, November 7, 1945, but he did not get the deed. Id. The Court held that "a cause of action to obtain the deed arose to him the next day, November 8, 1945." Id. Because all parties understood that Mark was supposed to get a deed on November 7, 1945, his cause of
¶ 67. A similar situation was addressed in Thames v. Holcomb. Clyde Holcomb asked his siblings to sign a deed putting an old family house in his name so he could refinance it and avoid foreclosure. Thames, 92 So.2d at 552. Holcomb promised he would make his nine siblings equal heirs to the property after he obtained the loan. Id. The siblings agreed, and Holcomb got the loan, but he did not deliver new deeds to his siblings. Id. The Court held the siblings' cause of action accrued on the day that the loan was made and the deed of trust was signed, because the siblings expected to get their deeds at that time. Id. Rankin and Thames are distinguishable from the instant case because the parties in those cases knew about the purchase and expected a deed. When they did not get a deed from the one who purchased using their money, the statute of limitations began to run. Such is not the case here. The Barriffes did not expect or want a deed to the landfill property. They did not expect any immediate return from their investments; they believed Lawson was holding their interest in trust for them until Eugene retired. Therefore, at the earliest, the Barriffes' cause of action accrued when Eugene retired in 2005. Alternatively, it could have accrued in 2009 when Lawson denied that the Barriffes were entitled to anything. Regardless, the ten-year statute of limitations had not expired when the Barriffes filed suit in 2009.
¶ 68. I would find myself more persuaded by the majority's position on the instant issue if the Barriffes were requesting specific performance of a contract to sell them the land. However, the Barriffes want neither ownership of the land nor to move back into the Wildwood apartment; they want to be compensated for the cost of building it. The chancellor found that the Barriffes spent $72,645 constructing the apartment and that the Nelsons had been unjustly enriched by that amount. He held that a constructive trust came into being in March 2009 when Lawson told the Barriffes he would not give them the deed to the Wildwood Property. After the first trial, the chancellor found that the ten-year statute of limitations had not expired, and he awarded the Barriffes $72,645. In the second judgment, the chancellor held that the statute of limitations barred the claim for the initial expense of building the apartment, and he awarded the Barriffes only $36,211 for the cost of adding the second floor in 2005.
¶ 69. The law regarding unjust enrichment and constructive trusts is set forth in the previous section. Substantial credible evidence supports the chancellor's finding of a constructive trust as to the Wildwood apartment. It is undisputed that Ernie and Lawson had a close relationship. There is no reason the Barriffes would have built the apartment if they did not think they would be able to stay there. They made additions to the apartment and it became their permanent residence in
¶ 70. The majority holds that the "alleged contract fails under the statute of frauds." (Maj.Op. ¶ 37.) First, there is no contract. The Barriffes spent money building an apartment with the belief that they would be able to live out their lives in the apartment. The Barriffes were constructively evicted from that apartment. They do not want to move back to the apartment, and they are not asking that the courts order the Nelsons to sell them the land. They simply want to be reimbursed for the amount spent building the apartment. David and Dwight, now in possession of the property and apartment, have been unjustly enriched by the amount the Barriffes spent building the apartment. It is not a matter of contract; it is unjust enrichment remedied by a constructive trust. Second, we have held that "constructive trusts are not subject to the statute of frauds." Allred v. Fairchild, 785 So.2d 1064, 1070 (¶ 15) (Miss.2001). Thus, where it is determined that a constructive trust was created, the statute of frauds should not be applied. Id. See also Allgood, 473 So.2d at 421-22.
¶ 71. The date the apartment originally was constructed is not certain. The majority of the evidence indicates that the metal building was built in 1995, so the apartment was constructed at some point thereafter. It is undisputed that the Barriffes made additions to the apartment and moved there permanently in 2005 after Hurricane Katrina. However, the Barriffes did not expect the property to be conveyed to them until Lawson's death. As set forth above, the statute of limitations for a constructive trust begins to run when one party commits a wrong that results in another party having a claim. See Thames, 92 So.2d at 551; Rimmer, 4 So.2d at 225. I agree with the chancellor's first judgment, that the constructive trust came into being in March 2009 when the Barriffes asked about the deed and Lawson told them he would not convey the Wildwood Property to them. Before that time, the Barriffes did not have a claim, because they did not expect to receive anything until Lawson's death. The Barriffes filed suit several months after the confrontation with Lawson, which was the action that resulted in the Barriffes having a claim. Therefore, the ten-year statute of limitations had not expired.
¶ 72. Substantial credible evidence supports the chancellor's initial finding that the Nelsons were unjustly enriched by the value of the apartment, that a constructive trust as to the Wildwood apartment was established, and that the statute of limitations had not run when the Barriffes filed suit. The Barriffes do not want to move back into the apartment, but the Nelsons have been unjustly enriched by the amount the Barriffes spent constructing it. Therefore, the chancellor's original award of $72,645 for the amount spent constructing the apartment was an equitable award.
¶ 73. Substantial credible evidence supported the chancellor's initial findings that
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.
