Jon A. Swartzfager v. Thomas R. Saul

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 WHICH APPEALED: JONES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: GLENN S. SWARTZFAGER
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.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. Thomas R. Saul and Jon A. Swartzfager initially reached a verbal agreement for
Saul’s purchase of a piece of property located within a larger tract of land Swartzfager
owned. But another person came along and offered Swartzfager a significant sum to buy the
whole tract. So Swartzfager approached Saul and asked if he would forego their original
land deal and in exchange accept a separate parcel within a different tract of land. Saul
agreed to Swartzfager’s new offer, and Swartzfager reduced their agreement to
writing—stating that for “good and valuable consideration” already received, he would
transfer the second parcel to Saul upon request. However, Swartzfager later backed out and
never transferred any land to Saul.
¶2. Saul filed suit against Swartzfager seeking damages and specific performance. The
chancellor found a valid contract existed between Saul and Swartzfager, and awarded him
damages, attorney’s fees, and prejudgment interest. After review, this Court finds the
chancellor correctly ruled that Saul and Swartzfager had a contract. And even absent the
contract, Saul proved he detrimentally relied on Swartzfager’s offers and promises. So
Swartzfager is equitably estopped from denying the land deal. Additionally, we find the
chancellor’s awards for intentional infliction of emotional distress and attorney’s fees are
supported. But the chancellor did err in awarding prejudgment interest, because Saul did not
plead a request for prejudgment interest. We thus affirm in part, reverse in part, and remand
for a recalculation of damages and attorney’s fees that does not include prejudgment interest.
Background Facts and Procedural History
¶3. Swartzfager, an attorney in Jones County, approached Thomas Saul in January 2007
at his home. He offered Saul an opportunity to purchase acreage of his choosing at a low
price, in a large tract of land. Swartzfager owned approximately sixty-three acres near Saul’s
home, which he planned to develop into a subdivision—Deerfield. Swartzfager wanted Saul,
who was a Mississippi highway patrolman, to be one of the first homeowners so the
neighborhood “would have a law enforcement presence.” Saul agreed and had a five-acre
tract surveyed near the center of the development. He presented the survey to Swartzfager
and tried to close on the transaction numerous times. But Swartzfager either did not respond
2
or delayed delivering closing documents. Meanwhile, relying on Swartzfager’s
representations, Saul and his family sold their home and planned to build a “shop” on the
property. Saul intended to live in the shop with his family while his new house was under
construction.
¶4. With the closing on their own home approaching and no closing in sight for the
Deerfield acreage, Saul and his family were forced to purchase and live in a mobile home.
They also had to pay to store their belongings. Saul continued to ask Swartzfager to close
on the property. But Swartzfager dodged him. During this time, Swartzfager was ironing
out a separate proposal with a man named Bill Jenkins. And Jenkins eventually offered to
purchase the entire sixty-three acre Deerfield tract. The offer would net Swartzfager a
substantial profit.
¶5. Swartzfager first floated the idea of selling Jenkins the tract, less Saul’s five acres.
But eventually he approached Saul with a separate proposal. He asked Saul if he would
relinquish any interest in the five acres at Deerfield, and in exchange accept six acres in the
Grand View Estates subdivision. Saul agreed to this proposal. And on June 7, 2007,
Swartzfager drafted a basic agreement to this effect on his letterhead and signed it.
¶6. In his letter, Swartzfager wrote:
I, Jon A. Swartzfager, do hereby contract to sell to Thomas “Sonny” Saul and
wife six acres of land of the twelve acres belonging to me within Grandview
subdivision on the Sharon Moss road in the Second Judicial District of Jones
County, Miss. This contract is made after I have received good and valuable
consideration from Mr. Saul and the transfer of property by warranty deed
from me to him is to take place within 10 days of a request for same by Mr.
Saul.
3
/s/ Jon A. Swartzfager
Dated: June 7, 2007
¶7. Saul visited the Grand View Estates property and picked the northern six acres. He
then drew a map of the chosen land. With both the drawing and agreement in hand, Saul
made requests for Swartzfager to close on the Grand View Estates property. But again,
Swartzfager either did not respond or delayed. So, on August 23, 2007, Saul filed suit
against Swartzfager, his wife Helen, and Helen’s real estate company, Pinehurst Realty, LLC.
Saul sought to enforce his agreement with Swartzfager, claiming breach of contract,
equitable estoppel, and promissory estoppel. And he requested related damages. Saul filed
his complaint in Jones County, and it was assigned to Chancery Judge Franklin McKenzie
Jr. But Judge McKenzie recused, citing conflicts, and requested a special chancellor be
appointed. This Court appointed Judge James Thomas Jr. on September 5, 2007.
¶8. After conducting some initial discovery, the parties met with Judge Thomas and
prepared a scheduling order for the remaining discovery, which he signed on July 1, 2008.
By August 26, 2008, Saul filed for summary judgment. Soon after, the defendants responded
and likewise filed a motion for summary judgment. Judge Thomas considered the arguments
and granted partial summary judgment to Saul on February 12, 2009. In doing so, Judge
Thomas declared the June 7, 2007 writing by Swartzfager a valid, enforceable contract.
Judge Thomas then set the matter for trial. But before he could conduct the trial, Judge
Thomas passed away. And on March 15, 2011, this Court appointed Judge Ray H.
Montgomery to hear the case. On June 29, 2011, Judge Montgomery held a hearing on all
pending motions and granted summary judgment to Helen Swartzfager and Pinehurst Realty,
4
LLC—dismissing all claims against them. This left only the claims against Jon Swartzfager
individually.
¶9. The parties then conferenced with Judge Montgomery and, by agreed order, the matter
was set for a November 29, 2012 trial. The trial took place over November 29, 2012; January
25, 2013; and April 8, 2013. But Judge Montgomery also died before rendering a final
decision. And on December 19, 2014, this Court appointed Judge Hollis McGehee to preside
over the case. Judge McGehee met with the parties and, after discussion, the parties agreed
that Judge McGehee should review the existing record and render a decision. The parties
agreed this was a better course than conducting an entirely new trial. Judge McGehee
entered an agreed order memorializing this method for handling the case.1
¶10. On May 6, 2015, Judge McGehee mailed the parties a letter opinion and decision. He
asked Saul’s attorney to incorporate the rulings into a final opinion and judgment. On May
21, 2015, the final memorandum and judgment was signed by Judge McGehee and
acknowledged by both attorneys. Judge McGehee found Saul had given Swartzfager
valuable consideration for the Grand View Estates property by relinquishing any interest in
the Deerfield property. He also found Swartzfager’s testimony supported this, along with his
apparent authority to act on his wife’s behalf. Judge McGehee held Saul had relied on
Swartzfager’s original and “substitute” offers and promises, resulting in the sale of his family
1
The record also contains an email from Judge McGehee to the parties confirming
their desire to have him review the record to reach a final disposition, rather than conduct
a new trial.
5
home, moving his family to a mobile home, and requiring he secure storage for many of their
personal belongings.
¶11. As the judge saw it, “the June 7, 2007 alternate offer was, in essence, a pay back or
payment to [Saul] and his wife” for the troubles they suffered while acting “in full
detrimental reliance on [Swartzfager’s] unsolicited offers and promises.” Judge McGehee
described these representations as “[p]romises and offers which [Swartzfager] fully failed
to perform on for the purpose of making a substantial profit.”
¶12. Judge McGehee found the June 7, 2007 letter clearly stated Swartzfager “was giving
the six acres to [Saul] and the consideration was [Saul’s] foregoing his right to buy five acres
of his choosing in Deerfield which facilitated the sale of the sixty three acres in Deerfield
which greatly benefitted [Swartzfager].”
¶13. Based on Swartzfager’s intentional breach, Judge McGehee found Saul was entitled
to monetary damages—$53,400 for breaching the contract, plus $79,098.81 in prejudgment
interest.2 The chancellor also held Swartzfager liable for $22,785 in losses and costs incurred
by Saul, as a “direct and proximate result of the egregious actions and omissions by
[Swartzfager].” And he awarded Saul $50,000 for his emotional distress. All tallied, the
judgment against Swartzfager totaled $205,283.81.
¶14. Furthermore, because of Swartzfager’s actions, Judge McGehee found a separate
hearing on attorney’s fees was necessary. Saul filed a memorandum in support of attorney’s
fees. But Swartzfager did not. And after an unsuccessful conference on the issue, the parties
2
Judge McGehee computed prejudgment interest at eight percent per annum from
July 13, 2007 until May 13, 2015—or 7.8356 years.
6
filed a joint motion to determine attorney’s fees. At that point, Judge McGehee ruled on the
matter. Both parties acknowledged his amended memorandum opinion and judgment, which
was entered on July 8, 2015. In it, he found Swartzfager’s actions were so egregious and
intentional that Saul was entitled to attorney’s fees in the amount of $88,362.40—raising the
total judgment against Swartzfager to $293,646.21.
¶15. Swartzfager now appeals. He claims the chancellor erred by—(1) finding the June
7, 2007 writing a valid and enforceable contract; (2) not, alternatively, finding the June 7,
2007 writing was an undelivered promise for a gift; (3) awarding damages for emotional
distress; (4) awarding attorney’s fees; and (5) improperly awarding prejudgment interest.
Analysis
Standard of Review and Judicial Estoppel
¶16. We will not disturb a chancellor’s decision unless it was manifestly wrong, clearly
erroneous, or applied the wrong legal standard. McNeil v. Hester, 753 So. 2d 1057, 1063 (¶
21) (Miss. 2000) (citing Bank of Mississippi v. Hollingsworth, 609 So. 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. While these standards typically apply to a chancellor’s decisions, Swartzfager suggests
our review of his appeal should differ. He argues a de novo review of all issues is required
because Judge McGehee based his decision on testimony from hearings before previously
assigned chancellors. And he insists these chancellor’s findings should be given no
deference. We disagree.
7
¶18. We find Swartzfager is judicially estopped from taking this new approach. A litigant
is “estopped from taking a subsequent position if (1) the position is inconsistent with one
previously taken during litigation, (2) a court accepted the previous position, and (3) the party
did not inadvertently take the inconsistent positions.” Clark v. Neese, 131 So. 3d 556, 560
(¶ 16) (Miss. 2013) (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 specifically discussed whether to hold a new trial. And the parties agreed Judge
McGehee could, and should, render a decision based on the existing record rather than hold
a new trial. Indeed, the record contains Judge McGehee’s email to the parties confirming this
approach, along with an agreed order memorializing the agreement, signed by the chancellor
and parties. So Swartzfager is estopped from now claiming that, because the final decision
did not favor him, this Court should apply a de novo review.
¶19. We also find no merit to Swartzfager’s argument that the chancellor’s findings be
given no deference because they are verbatim adoptions of Saul’s proposed findings. We
find that Judge McGehee made his own findings, with few exceptions, based on the record.3
It is true that Judge McGehee adopted findings from the previous chancellors from prior
partial summary judgment rulings, but if Swartzfager takes issue with these particular
findings he should have appealed the summary judgment rulings. And the record shows
Swartzfager, in many instances, either agreed or conceded to Saul’s proposed findings of fact
3
Judge McGehee also adopted unchallenged findings from the previous chancellor’s
summary judgment rulings.
8
and conclusions of law, or simply did not provide proposed findings or conclusions of his
own. Heightened scrutiny by this Court is not required.
I. 2007 Writing as a Contract
¶20. Turning to the merits, Swartzfager first attacks his written agreement. He argues the
June 7, 2007 writing is defective and does not survive the Statute of Frauds as an enforceable
contract. He also claims that because the contract does not describe the Grand View Estates
land with sufficient specificity or include a price, it fails as a matter of law.
¶21. Mississippi’s Statute of Frauds requires a contract for the sale of land to be in writing
and “signed by the person to be charged therewith . . . .” Miss. Code Ann. § 15-3-1(c) (Rev.
2012). But “[t]hese written memoranda need not necessarily be embodied in one writing:
there may be one or more, if they are connected by physical contact, by reference, or by
necessary connection.” Fisher v. Kuhn, 54 Miss. 480, 483 (1877) (citing Jelks v. Barrett,
52 Miss. 315, 322-23 (1876)). Swartzfager himself wrote and signed the June 7, 2007 letter,
in which he agreed to convey to Saul six acres of the Grand View Estates property within ten
days of Saul’s request to close. Swartzfager then asked Saul to choose which six acres he
wanted. Saul complied and requested the northern six acres of the Grand View Estates
property. He also drew a map of this area. Saul then combined his drawing with
Swartzfager’s writing and delivered the documents to Swartzfager’s office, with a request
to close. Together, the June 7, 2007 writing and Saul’s mapped out description—which was
made at Swartzfager’s request—formed an agreement for the sale of the northernmost six
acres of Swartzfager’s property within Grand View Estates.
9
A. Description of the Land
¶22. Swartzfager next takes issue with the map. He argues Saul’s map does not sufficiently
describe the chosen property. Swartzfager is correct that “[t]he description of the land in a
contract for the sale of real property is unquestionably an essential term that must be stated
with specificity.” Woodruff v. Thames, 143 So. 3d 546, 554 (¶ 19) (Miss. 2014) (citations
omitted). But generally, a description is sufficient if a surveyor can locate the boundaries by
following the description. See Trotter v. Gaddis & McLaurin, Inc., 452 So. 2d 453, 456
(Miss. 1984); Overby v. Cavanaugh, 434 So. 2d 1365, 1366 (Miss. 1983). Moreover, a
description may still be considered sufficient, though it contains inaccuracies, if the property
could be located with some certainty. See Stockstill v. Gammill, 943 So. 2d 35, 41-42 (¶ 11)
(Miss. 2006). Swartzfager’s June 7, 2007 letter identifies the selected land as “six acres of
land of the twelve acres belonging to me in the Grandview subdivision on the Sharon Moss
Road in the Second Judicial District of Jones County, Mississippi.” He identified half of a
twelve-acre parcel, within a specific subdivision, in a specific judicial district of Jones
County. Swartzfager then asked Saul to pick which half of the twelve-acre parcel he wanted,
which Saul did. Saul mapped the northern half along the adjacent neighbor’s property line.
He also included several roads and noticeable boundaries, as well at the map’s orientation.
Swartzfager had no misunderstanding about the chosen land. And this description is more
than sufficient for a surveyor to locate the property’s boundaries. Thus, the chancellor did
not err in finding the land was sufficiently described.
B. Price of the Land
10
¶23. Swartzfager also insists his writing failed for not including a purchase price. He relies
heavily on Duke v. Whatley, arguing the failure to include a price is a fatal defect which
renders the June 7, 2007 writing an indication of intent rather than a contract. Duke v.
Whatley, 580 So. 2d 1267, 1273-74 (Miss. 1991) (collecting authorities). We note, however,
that Duke and the other cases cited by Swartzfager largely concern contracts to enter a later
contract, or agreements for future agreements—something we do not face here. By
Swartzfager’s own written words, he had “received good and valuable consideration” and
would transfer the property to Saul within a specified time, upon request. Swartzfager
expressed, in writing, that consideration had already been exchanged. He likewise expressed
in writing his readiness to convey the six acres. Therefore, Swartzfager’s June 7, 2007
writing did not fail to include a price to be paid. It just did not include the price already
paid—and that is where the ambiguity lies. And where contracts “evade clarity as to the
parties’ intent, the court should consider extrinsic or parol evidence.” Facilities, Inc. v.
Rogers-Usry Chevrolet, Inc., 908 So. 2d 107, 112 (Miss. 2005) (citations omitted).
¶24. Judge McGehee recognized this maxim and considered Swartzfager’s own testimony
and statements, along with Saul’s.4 And he found that Swartzfager agreed he was going to
convey the six acres in Grand View Estates to Saul in exchange for Saul’s consent to the sale
of the entire Deerfield property to Bill Jenkins. Swartzfager only began to back out from this
agreement when Saul “picked property he shouldn’t have” and heard rumors Saul was going
4
Judge Thomas granted partial summary judgment in favor of Saul, finding that the
June 7, 2007 writing was a contract.
11
to flip the property.5 But Judge McGehee did not find any such limitations or restrictions in
the June 7, 2007 agreement. And Swartzfager’s own testimony established he had agreed
that in exchange for Saul’s consent to the Deerfield sale, he would transfer six acres of Saul’s
choosing to him. We find the record supports the trial court’s finding that consideration had
already changed hands—specifically Saul’s forbearance of any claim to the Deerfield
property.
C. Contract Ambiguities and Vagaries
¶25. A consistent rule of contract construction is that “when the terms of a contract are
vague or ambiguous, they are always construed more strongly against the party preparing it.”
Stampley v. Gilbert, 332 So. 2d 61, 63 (Miss. 1976) (citing Globe Music Corp. v. Johnson,
226 Miss. 329, 84 So. 2d 509 (1956), and Love Petroleum Co. v. Atlantic Oil Producing
Co., 169 Miss. 259, 152 So. 829 (1934)). Here, Swartzfager proposed and drafted the
agreement. He is an attorney, knowledgeable of the Statute of Frauds, who held a superior
position to Saul in terms of legal expertise and experience. We find the chancellor did not
err in holding ambiguities or vagaries against Swartzfager as drafter. Nor was the chancellor
wrong to find the June 7, 2007 writing a valid, enforceable contract.
D. Equitable Estoppel
¶26. Still, even if we disagreed with the finding that a contract existed, Saul alternatively
pled equitable estoppel. And the chancellor found that Saul did, in fact, detrimentally rely
on Swartzfager’s representations. So Swartzfager is estopped from denying the land deal.
5
Swartzfager’s testimony is the only source, in the record, of the claim that Saul
intended to “flip” the property.
12
¶27. Equitable estoppel prevents a party from denying any material fact, induced by his or
her words or conduct, upon which another person relied and changed his or her position and
would suffer injury if the denial or contrary assertion was allowed. See Koval v. Koval, 576
So. 2d 134, 137 (Miss. 1991). The doctrine is based on “public policy, fair dealing, good
faith and justice[.]” Id. (citations omitted). It is premised on “the belief that a person should
do what he says he will do in situations where another party is injured by reliance on the first
party’s representations.” Id. at 138. And its aim is to “forbid one to speak against his own
act, representations, or commitments to the injury of one to whom they were directed and
who reasonably relied thereon.” Id. at 137 (citations omitted).
¶28. To prove equitable estoppel, a party must show he or she has changed position, to his
or her detriment, in reliance upon the conduct of another. PMZ Oil v. Lucroy, 449 So. 2d
201, 206 (Miss. 1984) (citing Birmingham v. Conger, 222 So. 2d 388, 392-93 (Miss.1969);
Ivy v. Grenada Bank, 401 So. 2d 1302, 1303 (Miss.1981); and Thomas v. Bailey, 375 So.
2d 1049, 1052 (Miss.1979)). It requires we consider whether “it would be substantially
unfair to allow a person to deny what he has previously induced another to believe and take
action on.” Id.
¶29. Judge McGehee found Saul had detrimentally relied on Swartzfager’s promises about
both the Deerfield and Grand View Estates properties—“Promises and offers which
[Swartzfager] fully failed to perform on for the sole purpose of making a substantial personal
profit.” As Judge McGehee saw it, Swartzfager acted “with total disregard for the welfare
13
of [Saul and his wife].” And “their entire lives” were “disrupted” by “[Swartzfager’s]
unsolicited offers and promises.” Our review shows the chancellor’s findings are supported.
¶30. Saul detrimentally relied on Swartzfager’s inducements—most notably selling his
home. Furthermore, Swartzfager was able to negotiate his deal with Bill Jenkins, without
interference or objection from Saul, only because he represented to Saul that, in exchange
for his approval, Swartzfager would convey to him the Grand View Estates property. And
Saul relied on these representations, acting unquestionably to his detriment. Thus,
Swartzfager should not reap “the benefits of a contract while simultaneously trying to avoid
its burdens.” Cmty. Bank of Miss. v. Stuckey, 52 So. 2d 1179, 1183 (¶ 25) (Miss. 2010)
(citations omitted). So, even if there was no enforceable contract, Swartzfager is estopped
from denying the Grand View Estates deal he struck with Saul.
II. 2007 Writing as a Promise
¶31. Swartzfager also tries to shirk his deal with Saul by characterizing the June 7, 2007
writing as an inter vivos gift—a gift he never delivered. Swartzfager suggests that, because
there was no written agreement between himself and Saul for the Deerfield property, Saul
could not legally forbear any rights as consideration for the June 7, 2007 contract.
¶32. Generally, forbearance to assert a claim that is unenforceable at law or equity is not
sufficient consideration. Stanley v. Sumrall, 167 Miss. 714, 147 So. 786, 788 (1933)
(collecting authorities). This rule however is not absolute, since “. . . forbearance to assert
a claim which might reasonably be doubtful is sufficient consideration to support a promise.”
Id.14
¶33. Swartzfager is correct that there was no written agreement between himself and Saul
for the Deerfield property. And the Statute of Frauds requires a written contract for land.
See Milam v. Paxton, 160 Miss. 562, 134 So. 171, 172 (1931) (a claim for specific
performance to convey land requires a written contract). Again, however, Swartzfager is
equitably estopped from denying his later Grand View Estates deal with Saul. Equitable
estoppel “is a well-established exception to our statute of frauds.” PMZ Oil Co., 449 So. 2d
at 206. Furthermore, the Statute of Frauds does not bar enforcement “of that to which a party
has agreed.” Id. (citing Martin v. Franklin, 245 So. 2d 602 (Miss. 1971), and Sanders v.
Dantzler, 375 So. 2d 774, 776-77 (Miss. 1979)). While Saul could not prosecute a claim,
successfully, for specific performance, there are other potential remedies that he could
forbear as consideration. See Powell v. Campbell, 912 So. 2d 978 (Miss. 2005); C. E.
Frazier Constr. Co., Inc. v. Campbell Roofing & Metal Works, Inc., 373 So. 2d 1036 (Miss.
1979). For example, like equitable estoppel, this Court stated in Frazier that promissory
estoppel “may arise from the making of a promise, even though without consideration, if it
was intended that the promise should be relied upon and in fact it was relied upon, and if a
refusal to enforce it would be virtually to sanction the perpetuation of fraud or would result
in other injustice.” Frazier, 373 So. 2d at 1038 (quoting 28 Am. Jur. 2d Estoppel and
Waiver, § 48 (1966)).
¶34. So we find Swartzfager’s argument really holds no water. Saul could have asserted
equity rights, certainly more than a mere “dispute or controversy” between himself and
Swartzfager over the Deerfield property. See Gunning v. Royal, 59 Miss. 45, 46 (1881).
15
And the fact that Saul forbore any claim or suit, regardless of its likelihood of success, to the
Deerfield land is sufficient consideration for the June 7, 2007 writing concerning the Grand
View Estates property. Second, Swartzfager’s own hand-picked wording in the June 7, 2007
writing acknowledges that “[t]his contract is made after I have received good and valuable
consideration . . . .” (emphasis added). Thus, Swartzfager’s own written words express his
then-held view that the consideration was both already received and valuable. For these
reasons, we find the chancellor did not err by rejecting Swartzfager’s notion that the June 7,
2007 writing was merely an undelivered gift inter vivos. And again, even if the chancellor
had erred in this view, at a minimum Saul proved his alternative claim of equitable estoppel.
III. Emotional Distress
¶35. Swartzfager next contends the chancellor wrongly awarded damages for intentional
or negligent infliction of emotional distress. He asserts Saul did not make a prima facie case
for either claim. But the chancellor disagreed, and so do we.
¶36. Judge McGehee specifically found Swartzfager’s intentional actions surrounding the
agreement caused Saul significant emotional distress. There is no indication that damages
were awarded for negligent infliction of emotional distress, so we need not address that
argument. We limit our discussion to intentional infliction of emotional distress.
¶37. Typically, to support a claim for intentional infliction of emotional distress, a
“defendant’s conduct must be ‘wanton and wilful.’” Speed v. Scott, 787 So. 2d 626, 630 (¶
17) (Miss. 2001) (quoting Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659
(Miss. 1995)). It must be the type of conduct that “‘would evoke outrage or revulsion’” Id.16
The acts must be “‘so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” Id. at (¶ 18) (quoting Pegues v. Emerson Elec. Co., 913 F. Supp.
976, 982 (N.D. Miss. 1996) (citations omitted)). This no doubt is a high bar, but as Saul also
notes, this Court apparently has “moved away from this requirement” for breach of contract
claims. See Univ. of S. Miss. v. Williams, 891 So. 2d 160, 172 (¶ 30) (Miss. 2004) (citations
omitted).
¶38. When the claim is based on a contract, a plaintiff must show that (1) the emotional
distress was a foreseeable consequence of the particular breach-of-contract and (2) that he
or she actually suffered emotional distress; plaintiffs need not prove any physical
manifestation. Id. at 172-73 (¶ 31). However, the plaintiff must show specific suffering
during a specific time frame; generalizations are not sufficient. Id.
¶39. Saul testified that during the six to seven months following the collapse of his dealings
with Swartzfager, both he and his wife were on “an emotional roller coaster.” Saul felt
betrayed, helpless, angry, and disappointed. He testified about the significant stress his
family endured by moving from a house to a much smaller mobile home.6 These events
certainly would cause a reasonable person great distress. Still, even if Saul’s suffering and
the disruption of his family’s life are categorized as mere discomfort, “testimony concerning
‘discomforts’ . . . take[s] on a different importance when viewed in light of the event which
6
Saul also testified that during this time he was diagnosed with cancer, and his wife
was diagnosed a few years later, and that fighting cancer was more difficult and stressful
while they lived in the mobile home and had their belongings in storage.
17
engendered the mental anguish.” Id. at 173 (¶ 32) (citing Whitten v. Cox, 799 So. 2d 1,
10-11 (Miss. 2000)). And here, the chancellor described the events, particularly
Swartzfager’s conduct, as “self-serving greed from start to finish”—something akin to “a
portrait of egregious behavior.” He found Swartzfager’s acts “were clearly and intentionally
made in self-serving bad faith . . . with total disregard for the welfare of Sonny and Gail.”
¶40. We find support for the chancellor’s finding that Swartzfager’s behavior was
repetitive and egregious, resulting in the disruption of Saul’s and his wife’s lives, with the
sole result being Swartzfager’s financial benefit. Saul’s emotional distress clearly was a
foreseeable result of Swartzfager repeatedly breaking his promises. And under our
deferential review, regardless of whether Saul’s emotional-distress claim is considered in the
contractual context or in the traditional sense, nothing in the record suggests the chancellor
erred by finding Swartzfager’s intentional and egregious acts caused Saul emotional distress.
We thus find the award is factually supported.
IV. Attorney’s Fees
¶41. Swartzfager further complains the chancellor incorrectly awarded attorney’s fees to
Saul. He argues that, absent statutory or contractual authority, attorney’s fees are warranted
only where punitive damages also are proper. See Miss. Power & Light Co. v. Cook, 832
So. 2d 474, 486 (¶ 40) (Miss. 2002) (citing Aetna Cas. & Sur. Co. v. Steele, 373 So. 2d 797,
801 (Miss. 1979); Smith v. Dorsey, 599 So. 2d 529, 549-50 (Miss. 1992); Defenbaugh & Co.
of Leland v. Rogers, 543 So. 2d 1164, 1167 (Miss. 1989); and Tideway Oil Programs, Inc.,
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v. Serio, 431 So. 2d 454, 456 (Miss. 1983)). He insists that, because punitive damages were
not awarded, the chancellor erred in awarding attorney’s fees.
¶42. Judge McGehee told the parties he would hold a separate hearing on attorney’s fees.
And he asked each party to submit briefs. Saul briefed the court on the issue, but
Swartzfager did not. With his brief, Saul provided affidavits from attorneys, describing the
forty-percent contingency fee charged by Saul’s attorney as fair and reasonable for the work
performed. And to support the nature of his attorney’s legal work, Saul attached time sheets,
depicting the various tasks performed. The detailed work records listed the dates and tasks
provided by each attorney, including the hours worked and each attorney’s usual billable rate.
Swartzfager, by comparison, opted not to pursue a separate hearing on attorney’s fees. Nor
did he provide a brief or memorandum contesting the fees. Instead, he agreed to a joint
motion, with Saul, for a ruling on the matter—effectively waiving the separate hearing. So,
at no point did Swartzfager seriously challenge the issue of attorney’s fees or contest Saul’s
submissions.
¶43. This Court has held attorney’s fees may be awarded in cases where punitive damages
are, or would be, proper, but are not actually awarded. See Aqua-Culture Technologies, Ltd.
v. Holly, 677 So. 2d 171, 184-85 (Miss. 1996); see also Pursue Energy Corp. v. Abernathy,
77 So. 3d 1094, 1100-01 (Miss. 2011). Furthermore, punitive damages are not a prerequisite
for attorney’s fees, and a chancellor does not abuse his or her discretion by awarding such
fees where an award of punitive damages would have been justified. Aqua-Culture, 677 So.
2d at 184-85. Judge McGehee found Swartzfager’s actions were egregious—“ the ultimate
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bad faith in disrupting someone else’s life for the sole purpose of benefitting his own.”
Clearly, punitive damages would have been justified here. So, we review Judge McGehee’s
award of attorney’s fees for abuse of discretion. Id. at 185. And based on the record and the
chancellor’s findings, we see no abuse of discretion on this issue and affirm.
V. Prejudgment Interest
¶44. Swartzfager’s final claim is that the chancellor improperly awarded prejudgment
interest. While a party is no longer required to plead with specificity the date from which
prejudgment interest accrues, a party must assert a demand for prejudgment interest in the
appropriate pleading. Bailey Brake Farms, Inc. v. Trout, 116 So. 3d 1064, 1071 (¶ 25)
(Miss. 2013) (citing Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So. 2d
1100, 1118 (¶ 45) (Miss. 2007)). Saul did not specifically demand prejudgment interest in
either his original or amended complaint. He merely made a request for general relief. And
a request for general relief in a complaint seeking equitable relief does not give the defendant
notice of a claim for prejudgment interest. Id. (citing M.R.C.P. 8); see also Arcadia Farms
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 provide sufficient notice of the claims and grounds upon which relief is
sought).
¶45. Saul failed to make a demand for prejudgment interest, and no record evidence exists
to show that Swartzfager was on notice of a claim for prejudgment interest. So the issue of
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prejudgment interest was not before the court, and the chancellor erred by awarding
prejudgment interest.7
Conclusion
¶46. Swartzfager’s June 7, 2007 writing, along with Saul’s drawing, constitute a valid,
enforceable agreement. Swartzfager, as both the agreement’s drafter and an attorney, is
responsible for any deficiencies or ambiguities. And, even if there was no enforceable
contract, Swartzfager is equitably estopped from denying the land deal. We thus find the
awards and related expenses, including the intentional infliction of emotional distress award
and attorney’s fees, were proper. However, the chancellor erred in awarding prejudgment
interest. We therefore affirm the trial court in part, reverse the award of prejudgment
interest, and remand for a new calculation of damages and attorney’s fees that does not
include prejudgment interest, based on the evidence already submitted to the trial court and
consistent with this Court’s opinion.
¶47. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
WALLER, C.J., DICKINSON, P.J., KING, COLEMAN, BEAM, AND
CHAMBERLIN, JJ., CONCUR. RANDOLPH, P.J., AND KITCHENS, J., NOT
PARTICIPATING.
7
Because we reverse and render the prejudgment interest award, we need not discuss
whether Saul’s damages were liquidated when he filed his complaint or if Swartzfager acted
in bad faith.
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