                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2010-CT-01939-SCT

MONA CATES

v.

ELIZABETH SWAIN

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         10/25/2010
TRIAL JUDGE:                              HON. PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED:                TATE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  JONATHAN S. MASTERS
                                          ROBERT M. STEPHENSON
ATTORNEYS FOR APPELLEE:                   JOHN THOMAS LAMAR, JR.
                                          DAVID MARK SLOCUM, JR.
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED IN PART, VACATED IN PART
                                          AND REMANDED - 05/02/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Elizabeth Swain and Mona Cates cohabited from 2000 until 2006. After they severed

the relationship, Swain filed an action seeking the repayment of funds she first had invested

in property in Washington, which were then used to purchase a residence in Tate County.

The chancellor rejected Swain’s claim of a constructive trust or a resulting trust. The

chancellor found that Cates had been unjustly enriched by Swain’s contributions and

awarded Swain a judgment in that amount. The Court of Appeals affirmed the chancellor’s
rejection of the trust claim but reversed the decision of the chancellor, which was based on

unjust enrichment. The Court of Appeals held that, because “cohabitation alone cannot form

the basis of an equitable remedy between non-married cohabitants,” the remedy of unjust

enrichment was outside the bounds of the chancery court’s equitable powers. Cates v.

Swain, 2012 WL 1292639, at *7 (Miss. Ct. App. Apr. 17, 2012).

¶2.      We find that the chancellor was empowered to award relief on the basis of unjust

enrichment. We affirm the judgment of the Court of Appeals to the extent that it affirmed

the chancellor’s rejection of Swain’s claim of a constructive trust or a resulting trust. We

reverse the judgment of the Court of Appeals with regard to the unjust-enrichment award.

Because the chancellor made a mathematical error in the calculation of the unjust-enrichment

award, we vacate the chancellor’s judgment in part, and remand the case to the chancery

court for entry of judgment in the correct amount of $41,495.

                                          FACTS

¶3.      In 2000, Swain and Cates met though an online dating service and began a

relationship while living in different states. Swain was in the Navy and worked as an

oceanographer, and Cates was a commercial airline pilot based in New York, New York,

where she maintained a separate residence. During the entirety of her relationship with

Cates, Swain was married and estranged from her husband. Swain testified that she remained

married so that her husband could remain covered under her medical insurance policy, and

so that Swain could claim a larger housing allowance from the Navy than she would have

been entitled to as a single individual. Swain divorced after her relationship with Cates had

ended.

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¶4.     In late 2000, Swain transferred to Pensacola, Florida, and bought a house there. Cates

provided $2,000 in earnest money toward the purchase of the house, residing there and in

New York. Swain made the monthly mortgage payments and significantly paid down the

principal. The two made improvements to the house.

¶5.     In 2003, Swain and Cates moved to Seattle, Washington. Cates bought a home in

Seattle, where the two cohabitated. Swain sold the Florida home and received $32,000 in

equity. Swain testified that she gave Cates a check for $34,000, representing the equity in

the Florida home, plus an extra $2,000 from Swain’s personal checking account as an

investment. Swain testified that Cates used this money for the down payment on the

Washington home, which Cates purchased for $191,000. In contrast, Cates testified that the

check was repayment for undocumented loans. Swain and Cates made various improvements

to the Washington home, and in 2005 the residence sold for $300,000.

¶6.     In 2005, Cates and Swain moved to Tate County, Mississippi, where Cates bought a

home for $350,000, using the equity from the sale of the Washington home. Swain provided

Cates a check for $5,000 with “closing costs” written in the memo line. She also paid $4,495

to carpet the home. Again, Cates characterized these expenditures as repayments for

undocumented loans to Swain.

¶7.    Subsequently, the parties’ relationship deteriorated, and Swain moved out in March

2006. On June 13, 2006, Swain filed a complaint against Cates, alleging that they had been

cohabitants, that they had been involved in several joint ventures together, and that they had

entered into an agreement for Swain to invest the proceeds from the sale of her Florida home

into future purchases of real property in Washington and Mississippi. Swain requested that


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the chancery court declare a constructive trust or a resulting trust in the Mississippi home, and

that Cates had been unjustly enriched.

¶8.    The chancellor rejected Swain’s claims of a constructive trust or a resulting trust. The

chancellor found that Cates had been unjustly enriched by Swain’s investment contributions.

The chancellor rejected Cates’s unsupported assertions that these contributions were merely

loan repayments. The chancellor found Swain was entitled to recover the equity from her

Florida home. The chancellor awarded Swain $38,000, minus $2,500.1 The chancellor also

found that Swain was entitled to recover the $5,000 she had tendered to Cates for closing

costs on the Mississippi home and the $4,495 she had spent to carpet Cates’s Mississippi

home. The chancellor entered a judgment in the amount of $44,995 in favor of Swain.

¶9.    The Court of Appeals reversed. Cates, 2012 WL 1292639, at *9. The Court of

Appeals reviewed our prior cases pertaining to unmarried cohabitants, and concluded that

“Mississippi does not enforce contracts implied from the relationship of unmarried

cohabitants.” Id. at *4. Therefore, the Court of Appeals held that the chancellor had lacked

the authority to grant the remedy of unjust enrichment. Id. at *7. This Court granted Swain’s

petition for certiorari to review the legal question of whether the remedy of unjust enrichment

was available to Swain. We find that, in the particular circumstances, the chancellor did not

err by granting relief on the basis of unjust enrichment.

                                 STANDARD OF REVIEW




        1
        As discussed later in this opinion, the chancellor’s findings concerning these
amounts were clearly erroneous. The testimony and exhibits reflect that Swain paid Cates
$34,000 from the Florida home, and Cates paid Swain $2,000 in earnest money.

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¶10.   This Court will not reverse a chancellor’s fact-findings unless they were manifestly

wrong, clearly erroneous, or the chancellor abused his discretion. Smith v. Wilson, 90 So. 3d

51, 56 (Miss. 2012) (quoting Zeman v. Stanford, 789 So. 2d 798, 801-02 (Miss. 2001)). We

review questions of law de novo. Smith, 90 So. 2d at 56.

                                        ANALYSIS

¶11.   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.’” Miss. Dep’t of Envtl. Quality

v. Pac. Chlorine, Inc., 100 So. 3d 432, 442 (Miss. 2012) (quoting Powell v. Campbell, 912

So. 2d 978, 982 (Miss. 2005)). In these circumstances, equity imposes “a duty to refund the

money or the use value of the property to the person to whom in good conscience it ought to

belong.” Estate of Johnson v. Adkins, 513 So. 2d 922, 926 (Miss. 1987). The amount of

recovery for unjust enrichment is “that to which the claimant is equitably entitled.” Id.

¶12.   The chancellor found that Cates had been unjustly enriched by Swain’s contributions

to the Mississippi home, which consisted of Swain’s proceeds gained from the sale of her

Florida home, the $5,000 Swain contributed at closing, and the $4,495 Swain had paid to

carpet the Mississippi home. The Court of Appeals concluded that the remedy of unjust

enrichment was not available to Swain as an unmarried cohabitant. Cates, 2012 WL 1292639,

at *7. The Court of Appeals primarily relied upon Davis v. Davis, 643 So. 2d 931 (Miss.

1994), and Estate of Alexander v. Alexander, 445 So. 2d 836 (Miss. 1984), to reach this

conclusion. Cates, 2012 WL 1292639, at *5.




                                              5
¶13.      We find Davis and Alexander to be distinguishable from this case. In Davis, the

unmarried parties separated, and the woman, Elvis Davis, sought an equitable distribution of

assets. Davis, 643 So. 2d at 932. Travis Davis had amassed considerable wealth, and Elvis

argued that, by virtue of her efforts in her live-in, long-term relationship with Travis, she was

entitled to an equitable division of assets. Id. at 933. The Court disagreed, noting that the

Legislature has not extended the rights enjoyed by married people to those who cohabit. Id.

at 936.

¶14.      In Estate of Alexander v. Alexander, 445 So. 2d 836 (Miss. 1984), Margie and Sam

Alexander had cohabitated for thirty years in a house owned by Sam. Id. at 837. When Sam

died, Margie petitioned the court for a life estate in the residence. Id. The Court found that

the Legislature had made no provision for a person in Margie’s situation, and that “a mere

‘live-in’ relationship . . . cannot be allowed to negate the law of descent and distribution.”

Id. at 839 (emphasis added). The Court also found that Margie could not recover under an

implied-contract theory because no evidence established the existence of an implied contract

between Margie and Sam. Id. at 840.

¶15.      In both Davis and Alexander, the aggrieved party’s claim for recovery was based upon

a relationship. Both claims were for equitable division of property. In Davis, the Court rightly

noted that cohabitation is prohibited as against public policy and that the Legislature has not

extended the rights of married persons to cohabitants, nor do we today. In this case, Swain’s

claim was not one for equitable division. Swain made a claim, inter alia, for unjust

enrichment based upon her monetary contributions to Cates’s purchase of the Washington

home and the purchase and improvement of the Mississippi home, which Cates retained after

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Swain moved from the residence. Ultimately, the chancellor adjudicated the case on that

theory of relief, and we find no error in the chancellor’s legal conclusion.

¶16.   True, as Presiding Justice Dickinson indicates in his separate opinion, Swain’s unjust-

enrichment claim was predicated on her assertion that Swain and Cates had entered into an

agreement that Swain would invest the proceeds from the sale of her Florida home toward

future home purchases. Thus, as Swain contended at trial, she should be entitled to share in

the profits Cates earned from the use of Swain’s money.

¶17.   Swain claimed there was a mutual agreement between her and Cates that her Florida

equity proceeds were to be used as an investment in both the Washington and Mississippi

homes but offered no written evidence to support her testimony. Cates, who disputed Swain’s

version, claimed that she considered the funds provided by Swain to be reimbursement money

for all the “loans” she had provided Swain, but she offered no written evidence to support her

testimony. The only proof offered by either party for her claims was her respective testimony.

The chancellor, essentially, accepted neither version. We find no abuse of discretion.

¶18.   Instead, the chancellor focused on readily identifiable assets (or tangible benefits) each

party conferred on the other, which, if retained by that party, would, under the circumstances,

inequitably benefit (or unjustly enrich) that party. In essence, these particular benefits spoke

for themselves, irrespective of how the parties attempted to characterize them after the fact

at trial. The chancellor declined to treat these benefits as either investments or gratuitous gifts,

as the Court of Appeals mistakenly construed our caselaw to require. Rather, the chancellor

sought, as much as the evidence would allow, to restore the status quo and return the parties

to the positions they had occupied before the transaction(s). This Court has held that an


                                                 7
unjust-enrichment award may consist of a refund, if that is equitable. Adkins, 513 So. 2d at

926. Our standard of review is abuse of discretion. Smith, 90 So. 3d at 56. Even if this Court,

as an original matter, would have decided the matter differently, applying our standard of

review, we conclude that the chancellor did not abuse his discretion in awarding Swain a

refund, a form of restitution.

¶19.   While the record reflects that Cates is a generous individual, the evidence she

submitted in support of her claim, as found by the chancellor, simply did not carry much

weight. We are mindful that the doctrine of unjust enrichment is not “a roving mandate [for

a court] to sort through terminated personal relationships in an attempt to nicely judge and

balance the respective contributions of the parties.” Slocum v. Hammond, 346 N.W.2d 485,

491-92 (Iowa 1984). The chancellor astutely recognized that Swain’s unjust enrichment claim

did not request that the court undertake such a momentous task. We find that the chancellor

did not err in granting Swain recovery under the theory of unjust enrichment.

¶20.   We affirm the judgment of the Court of Appeals to the extent that it affirmed the

chancellor’s rejection of the constructive trust or resulting trust claim, reverse the judgment

of the Court of Appeals regarding the unjust-enrichment award, affirm the chancellor’s

judgment in part, vacate it in part, and remand for entry of judgment in the correct amount of

$41,495. We find that the chancellor clearly erred in his findings regarding the amounts Swain

paid to Cates. Swain testified that she had tendered a $34,000 cashier’s check to Cates from

her equity in the Florida home, not a $38,000 check as found by the chancellor. Further, the

record shows that Cates paid $2,000 in earnest money for the Florida home, not $2,500, as

found by the chancellor. A receipt reflects that the amount Swain paid to carpet the

                                              8
Mississippi home was $4,495, and she tendered a $5,000 check to Cates for closing costs on

that home. These amounts total $41,495. Swain contests these amounts, and contends that the

correct amount was $48,524.58. We affirm the chancellor’s judgment in part, vacate the

chancellor’s judgment in part, and remand the case to the chancery court for entry of judgment

in the amount of $41,495.

                                      CONCLUSION

¶21.   We find that the chancellor was empowered to grant relief to Swain based on the

theory of unjust enrichment. We affirm in part and reverse in part the judgment of the Court

of Appeals, affirm in part and vacate in part the judgment of the chancellor, and remand to the

chancery court for entry of judgment in the amount of $41,495.

¶22. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE TATE COUNTY
CHANCERY COURT IS AFFIRMED IN PART, VACATED IN PART, AND THE
CASE IS REMANDED FOR ENTRY OF JUDGMENT IN THE AMOUNT OF $41,495.


     WALLER, C.J., RANDOLPH, P.J., KITCHENS, PIERCE, KING AND
COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. LAMAR, J., NOT
PARTICIPATING.

     DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶23.   The majority correctly holds that the chancellor should have granted Swain relief based

on the equitable theory of unjust enrichment. But, because the majority merely modifies

Swain’s award without remanding to the chancellor for a fair and equitable determination of

the amounts due, I dissent in part.




                                              9
¶24.   Unjust enrichment applies when “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 [or she] should not retain but should deliver to another.” 2 In such situations, we

“impos[e] a duty to refund the money or the use value of the property to the person to whom

in good conscience it ought to belong.” 3 The amount of recovery for unjust enrichment is

“that to which the claimant is equitably entitled.” 4

¶25.   Cates used $34,000 of Swain’s money to purchase a home, which she later sold at a

$109,000 profit. Rather than dividing the money with Swain, Cates took all the profits – plus

another $9,495 from Swain – to purchase and carpet another home, which she titled

exclusively in her name. It seems to me rather odd for the majority – claiming it is applying

equitable principles – to conclude that Cates shall keep all the profits she earned from the use

of Swain’s money. Where is the equity in that?

¶26.   The majority sidesteps the equity consideration by asserting that the chancellor merely

restored the “status quo.” 5 But allowing Cates to keep over a hundred-thousand dollars of

profits she earned using Swain’s money hardly fits my definition of status quo.

¶27.   To be clear, I do not view Swain’s contributions as “investments.” And, there is no

issue regarding loans, because the chancellor rejected the notion that Swain “loaned” the

money to Cates. I simply disagree with the majority’s view that this Court should forbid the


        2
            Hans v. Hans, 482 So. 2d 1117, 1122 (Miss. 1986) (emphasis added).
        3
            Id.
        4
            Estate of Johnson v. Adkins, 513 So. 2d 922, 926 (Miss. 1987).
        5
            Maj. Op. at ¶ 18.

                                               10
chancellor from even considering the profits that Cates made using Swain’s money. This is

precisely why the doctrine of unjust enrichment applies, and why the chancellor should be

free to consider all of the facts and surrounding circumstances, and to exercise discretion to

reach an equitable award.

¶28.   This case should be remanded for the chancellor to apply the doctrine of unjust

enrichment and determine a fair and equitable amount of recovery, taking into consideration

all factors, including the increase and/or decrease in value of the properties at issue, and not

just the dollar amount of Swain’s contribution. Because the majority forbids the chancellor

from considering anything but the amount of Swain’s contributions and merely corrects the

chancellor’s mathematical errors, I respectfully concur in part and dissent in part.




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