Brown, Sr. et al v. Auble et al
MEMORANDUM OPINION AND ORDER denying 38 Motion for Summary Judgment. The Court denies the motion for the reasons provided herein. Signed by District Judge Keith Starrett on 4/28/21. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
LARRY L. “BUTCH” BROWN, SR., et al.
CIVIL ACTION NO. 5:20-CV-138-KS-MTP
DALE SHIELDS AUBLE, et al.
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Defendants’ Motion for Summary
This is a real property dispute. Plaintiffs claim that they have occupied certain
property located in Adams County, Mississippi and belonging to Defendants for
decades prior to filing this action. Specifically, Plaintiffs alleged that they have
occupied the property, maintained it, and improved it in reliance on an agreement
with Defendants’ predecessor-in-interest that they would have the option to purchase
it at a price of $2,500.00 per acre. Therefore, Plaintiffs asserted a claim of promissory
estoppel. Alternatively, they contend that Defendants have been unjustly enriched
by their maintenance of and improvements to the property. Defendants filed a Motion
for Summary Judgment , which the Court now addresses.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where
the burden of production at trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. “An issue is material if its
resolution could affect the outcome of the action.” Sierra Club, 627 F.3d at 138. “An
issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a genuine issue for trial.” Oliver
v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Defendants argue that, assuming there was an oral agreement to sell the
property to Plaintiffs, Mississippi’s statute of frauds bars this action. The statute of
An action shall not be brought whereby to charge a defendant or other
party . . . upon any contract for the sale of lands, tenements, or
hereditaments . . . unless, in each of said cases, the promise or
agreement upon which such action may be brought, or some
memorandum or note thereof, shall be in writing, and signed by the
party to be charged therewith or signed by some person by him or her
thereunto lawfully authorized in writing.
MISS. CODE ANN. § 15-3-1(c).
However, the statute of frauds can not “bar the enforcement of an agreement
where promissory estoppel is appropriate . . . .” Thompson v. First Am. Nat’l Bank,
19 So. 3d 784, 788 (Miss. Ct. App. 2009); see also Crowley v. Adams & Edens, P.A.,
731 F. Supp. 2d 628, 632 (S.D. Miss. 2010); Sanders v. Dantzler, 375 So. 2d 774, 776
(Miss. 1979). Similarly, “[w]here an action may not be maintained on an oral contract
as being within the statute of frauds, . . . the general rule is that the party breaking
the contract will not be permitted to obtain benefits from it to his unjust enrichment.”
McKellar’s Estate v. Brown, 404 So. 2d 550, 553 (Miss. 1981). Accordingly, Plaintiffs
have asserted claims of promissory estoppel and unjust enrichment.
The 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.” Boyanton v. Brothers
Produce, Inc., 312 So. 3d 363, ¶ 53 (Miss. Ct. App. 2020); see also Weible v. Univ. of S.
Miss., 89 So. 3d 51, 67 (Miss. 2011).
Defendants argue that Plaintiffs’ promissory estoppel claim fails because there
is no evidence that Plaintiffs invested in the property in reliance on the alleged
promise by Defendants’ predecessors-in-interest. In response to Defendants’ motion,
Plaintiffs presented evidence that they purchased a tractor and two cutters to use on
the Property, and that they have paid for 200 hours of labor on the Property per year
since 1994. Exhibit B to Response [44-2], at 2. Plaintiffs also presented evidence that
they “have cut and maintained trails and [a] road,” maintained a pond, “thinned trees
and removed fallen trees,” “planted food plots and put up deer stands,” and “protected
the property from poachers and trespassers.” Id. at 5.
Shields Brown testified that Plaintiffs spent “thousands of dollars” on a dam
to prevent water from leaking onto the Property. Exhibit 2 to Motion for Summary
Judgment [39-2], at 8. Butch Brown testified that he has “taken care of beaver
situations” on the Property. Exhibit 4 to Motion for Summary Judgment [39-4], at 8.
He also testified that he “groomed those trails and made sure that the loggers came
in there,” spending “hundreds of hours on it.” Id. He claims to have “maintained
everything out there except when there was an emergency or storm or whatever and
timber down.” Id. at 8-9. He paid “timber cutters [to] come in there and cut dead logs
and all kinds of issues with trees, mainly, to keep the trails open and beautiful.” Id.
Defendants argue that Plaintiffs would have made these expenditures
regardless of the alleged promise to sell. In other words, Defendants argue that
Plaintiffs did not make these expenditures in reliance on the alleged promise to sell
the property. Rather, Defendants aver that Plaintiffs provided these services for their
own benefit because they were able to use the property freely for their own enjoyment.
The record evidence does not address whether Plaintiffs would have spent the
alleged time and money maintaining and improving the property in the absence of
the alleged promise to sell. Moreover, Plaintiffs’ own enjoyment of the property does
not necessarily rule out their detrimental reliance on the alleged promise. Both could
be true. Therefore, the Court concludes that there is a genuine dispute of material
fact on the issue of detrimental reliance, precluding summary judgment as to
Plaintiffs’ promissory estoppel claim.
“The doctrine of unjust enrichment or recovery in quasi contract applies to
situations where there is no legal contract but where 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, the courts imposing a duty to refund the
money or the use value of the property to whom in good conscience it ought to belong.”
Dew v. Langford, 666 So. 2d 739, 745 (Miss. 1995).
For the same reasons provided above in the Court’s discussion of Plaintiff’s
promissory estoppel claim, the Court finds that there is a genuine dispute of material
fact as to whether Plaintiffs have provided valuable services to Defendants by
maintaining and improving the property, precluding summary judgment on
Plaintiffs’ unjust enrichment claim.
For these reasons, the Court denies Defendants’ Motion for Summary
SO ORDERED AND ADJUDGED this 28th day of April, 2021.
UNITED STATES DISTRICT JUDGE
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