           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                              FILED
                                                                             July 28, 2008

                                       No. 07-60555                     Charles R. Fulbruge III
                                                                                Clerk

ALLSTATE LIFE INSURANCE COMPANY, successor in interest to
Glenbrook Life and Annuity Company

                                                   Plaintiff-Appellee
v.

VIRGINIA V PARNELL, Executrix of the Estate of Charles Thomas Reed and
in her individual capacity

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:05-CV-164


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       A few months before his death, Charles Thomas Reed (“Reed”) purchased
an annuity from an agent of a company to which Allstate Life Insurance
Company (“Allstate”) is the successor in interest.1 After Reed’s death, Allstate
filed an interpleader action against several claimants to the annuity proceeds.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         Allstate is the successor in interest to Glenbrook Life and Annuity Company, which
actually sold the annuity to Reed. For simplicity, we refer to both organizations as “Allstate.”
                                        No. 07-60555

One of the claimants, Reed’s daughter, Virginia Parnell (“Parnell”), filed a
counterclaim against Allstate, both individually2 and in her capacity as executrix
of Reed’s estate. She alleged that Allstate acted wrongfully in selling Reed the
annuity and asserted claims against Allstate for breach of fiduciary duty, fraud,
civil conspiracy, unjust enrichment, unfair or deceptive trade practices, and
violations of the Mississippi Vulnerable Adults Act. The district court granted
summary judgment in favor of Allstate on all of Parnell’s claims, and she
appeals. For the following reasons, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Reed resided at the Armed Forces Retirement Home - Gulfport (“AFRH-
G”) until his death on January 28, 2004. In June or July of 2003, Reed met with
Linda Helwick (“Helwick”), a manager at the Hancock Bank branch located in
the AFRH-G who was licensed to sell Allstate fixed annuities, and mentioned
that he wanted to explore investment options. Reed knew Helwick from his
casual conversations with her during his weekly visits to the bank over ten
years. The two discussed fixed annuities and other investments, but Reed did
not make any decisions. On or around July 7, 2003, Reed met with Helwick’s
supervisor, Linda Madden (“Madden”), who was also licensed to sell Allstate
investment products, to discuss investment options. Madden stated that Reed
“seemed to be savvy on variable annuities,” that he “was pretty sharp in
investments,” and that “he’d ask the right questions, you know, what kind of fees
are involved, what kind of charges would the funds have if I decided to go into
those.” She also stated that “he was real quick, anytime I got into any of his
personal questions like what are you worth, what kind of income have you got,


       2
         Parnell failed to demonstrate that she had standing to sue individually, given that all
allegations centered on alleged duties to and harm befalling Reed. The Estate of Reed, of
course, has standing; Parnell, in her capacity as executrix of his estate, is the proper party to
assert Reed’s claims. In addition, Parnell conceded at oral argument that her claims were in
her capacity as executrix of the estate. We assess her claims in that light.

                                               2
                                 No. 07-60555

to cut me off.” Madden told Reed about an annuity with a seven percent rate
that Allstate had available at that time, but Reed did not purchase it. On July
15, 2003, Reed met with both Helwick and Madden (collectively, “Allstate’s
agents”) and discussed various variable and fixed annuity products. Helwick
stated that Reed told her he had talked to someone at another bank, and it was
her impression that he was “shopping” at that point. Reed requested the
annuity with the seven percent rate, but Madden stated that it was no longer
available. On August 1, 2003, Reed signed an application to purchase a fixed
annuity that Allstate sold. He designated as the beneficiary Suzuko Marshall
(“Marshall”), a volunteer at AFRH-G with whom he was close friends.
      Both prior to and following his purchase of the annuity, Reed had health
problems. In June 2003, Reed was diagnosed with lung cancer and told he had
only a few months to live; Allstate’s agents were aware of this fact. Reed had
cognitive problems as early as July 3, 2003 (about a month before the purchase
of the annuity), when progress notes indicate that he was confused as to the time
of day. In addition, on September 16, 2003, Reed was diagnosed with mild to
moderate dementia of the Alzheimer’s type.
      On January 20, 2004, Parnell and her brother, John Thomas Reed,
obtained a power of attorney (“POA”) over Reed. On January 25, Parnell found
the annuity in Reed’s room and discovered that Marshall was listed as the
beneficiary. Parnell met with Helwick, showed her the POA, and requested a
change of beneficiary form. Helwick refused to give Parnell a form and stated
that she would meet with Reed, but she did not do so. Parnell eventually
obtained a form from another Allstate agent, and Reed signed it on January 27,
making Parnell and John Thomas Reed the beneficiaries. Reed died on January
28, 2004.
      After Reed’s death, Parnell and Marshall each requested payment of the
annuity proceeds. Allstate filed an interpleader action against Parnell, John


                                       3
                                  No. 07-60555

Thomas Reed, the Estate of Charles Thomas Reed, and Marshall, seeking a
determination of which party was entitled to the proceeds of the annuity.
Parnell (both individually and as executrix of Reed’s estate) filed a counterclaim
against Allstate, alleging breach of fiduciary duty, undue influence, fraud, civil
conspiracy, unfair trade practices, and violations of the Mississippi Vulnerable
Adults Act, MISS. CODE ANN. § 43-47-8. Parnell sought rescission of the contract
or, alternatively, payment of its proceeds to her and her brother as beneficiaries;
injunctive relief to prevent Allstate from pursuing similar practices in the
future; punitive damages, and attorney’s fees. Marshall filed a cross-claim
against Parnell, alleging, inter alia, undue influence with respect to the change
of beneficiary form.    Allstate moved for summary judgment on Parnell’s
counterclaims, arguing that Parnell had not established the elements of any of
her claims. On March 30, 2007, the district court issued an order granting
Allstate’s motion for summary judgment on Parnell’s counterclaims, and on June
14, the court issued an order denying Parnell’s motion to alter or amend the
judgment. In these orders, the district court found that Parnell could not obtain
rescission of the annuity contract because (1) she had failed to set forth any
evidence of any of the elements of a fraud claim; and (2) even assuming,
arguendo, that a breach of fiduciary duty could justify rescission, she had not set
forth any evidence of a fiduciary relationship between Reed and Allstate. The
district court also found that Parnell had no standing to obtain injunctive relief
and that she could not obtain punitive damages or attorney’s fees because she
had not suffered actual damages. However, the district court did not specifically
discuss any of Parnell’s claims other than fraud and breach of fiduciary duty.
On July 12, 2007, Parnell filed a notice of appeal.
      On December 28, 2007, after a bench trial, the district court entered an
order disposing of all remaining claims in the case. The court found that the
designation of Marshall as the beneficiary was the product of Marshall’s undue

                                        4
                                      No. 07-60555

influence over Reed and that the change of beneficiary form designating Parnell
and her brother as the beneficiaries was the result of Parnell’s undue influence.
It therefore found that Reed’s estate was entitled to the annuity proceeds. The
relief Parnell now seeks is primarily the attorney’s fees and expenses Reed’s
estate has paid in the interpleader action.3
             II. JURISDICTION AND STANDARD OF REVIEW
       This court has jurisdiction over Parnell’s appeal of the district court’s order
granting summary judgment on her claims against Allstate because that order
“would have been appealable if the district court had certified it pursuant to
[Federal Rule of Civil Procedure] 54(b) and because the district court did
subsequently (and prior to oral argument herein) dispose of all remaining parties
and claims.” See Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 634 n.2
(5th Cir. 2002).
       This court reviews a district court’s grant of summary judgment de novo.
Madison Materials Co. v. St. Paul Fire & Marine Ins. Co., 523 F.3d 541, 542 (5th
Cir. 2008). We may “affirm a grant of summary judgment on any grounds
supported by the record and presented to the court below.” Hernandez v.
Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). Summary judgment “should be
rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A
genuine issue of material fact exists when the evidence is such that a reasonable
jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).         When this court reviews a grant of summary
judgment, it views all facts and evidence in the light most favorable to the


       3
        Parnell was unable to articulate how Reed was harmed by the purchase of the
annuity. Indeed, it increased in value in just the short time between its purchase and Reed’s
death.

                                             5
                                   No. 07-60555

non-movant. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir.
2006). However, to avoid summary judgment, the non-movant must go beyond
the pleadings and come forward with specific facts indicating a genuine issue for
trial. Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).
                              III. DISCUSSION
      On appeal, Parnell argues that we must reverse the grant of summary
judgment because the district court relied on a ground that Allstate did not raise
in its motion for summary judgment. She also contends that she produced
evidence sufficient to create a genuine issue of material fact concerning each of
her claims.
A.    Whether the district court erred by granting summary judgment
      on grounds not requested by Allstate
      Parnell maintains that the district court erred by granting summary
judgment to Allstate based on its finding that she could not establish a basis for
rescission of the annuity contract. Parnell claims that Allstate “never raised or
contested the issue of whether the Annuity could be rescinded” in its motion for
summary judgment.       She relies primarily on John Deere Co. v. American
National Bank, Stafford, 809 F.2d 1190 (5th Cir. 1987). In John Deere, a
defendant moved for summary judgment based solely on the ground that a prior
court judgment had a res judicata effect against the plaintiff. Id. at 1191. The
district court granted summary judgment for the defendant on a theory the
defendant had not argued: that the plaintiff had presented no evidence of
damages. Id. On appeal, this court found that the damages issue “certainly was
not raised by the [defendant] in a manner that would be sufficient to put [the
plaintiff] on notice that failure to present evidence of damages could be grounds
for summary judgment.”       Id.   The court reversed the grant of summary
judgment, stating that “a district court may not grant summary judgment sua
sponte on grounds not requested by the moving party.” Id. at 1192.


                                        6
                                 No. 07-60555

      John Deere does not require reversal in this case. In its motion for
summary judgment, Allstate discussed each of Parnell’s claims and argued that
she had failed to establish the elements of any of them. Thus, unlike the
plaintiff in John Deere, Parnell was on notice that she needed to produce
evidence of the elements of each of her claims in order to survive summary
judgment. Moreover, we may affirm a grant of summary judgment on any
grounds supported by the record and presented to the court below. Hernandez,
522 F.3d at 560.    Therefore, we decline to reverse the grant of summary
judgment based on John Deere. Instead, we will examine de novo whether
summary judgment was proper on each of Parnell’s claims.
B.    Breach of fiduciary duty claim
      Parnell claims that Allstate’s agents breached a fiduciary duty to Reed by
selling him an annuity that was unsuitable for him, failing to explain the
hypothetical implications of purchasing the annuity (such as the possibility that
he might have to withdraw money from the annuity to pay his taxes), and
declining to give Parnell a change of beneficiary form when she requested one.
      A plaintiff claiming a breach of fiduciary duty must first establish the
existence of a fiduciary relationship by clear and convincing evidence. Smith v.
Franklin Custodian Funds, Inc., 726 So. 2d 144, 150 (Miss. 1999). Under
Mississippi law, “determining the existence of a fiduciary relationship is a
question of fact.” Id. However, whether a particular relationship gives rise to
a fiduciary duty is a question of law. See Puckett v. Rufenacht, Bromagen &
Hertz, Inc., 587 So. 2d 273, 277-79 (Miss. 1991) (answering a certified question
from the Fifth Circuit as to whether and to what extent a fiduciary duty exists
between a commodities broker and a commodities customer with a non-
discretionary account). An ordinary contractual agreement does not give rise to
a fiduciary relationship. See, e.g., Peoples Bank & Trust Co. v. Cermack, 658
So. 2d 1352, 1358 (Miss. 1995) (“While one normally does not enter into a

                                       7
                                     No. 07-60555

contract with another unless he trusts and has confidence in him, contract and
debt amount to a business and not to a fiduciary relationship.” (internal
quotation marks omitted)), rev’d on other grounds by Adams v. U.S.
Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999). However, the Mississippi
Supreme Court has held that a fiduciary relationship may arise in certain
situations:
      Although every contractual agreement does not give rise to a
      fiduciary relationship, such relationship may exist under the
      following circumstances: (1) the activities of the parties go beyond
      their operating on their own behalf, and the activities for the benefit
      of both; (2) where the parties have a common interest and profit
      from the activities of the other; (3) where the parties repose trust in
      one another; and (4) where one party has dominion or control over
      the other.

Hopewell Enters., Inc. v. Trustmark Nat’l Bank, 680 So. 2d 812, 816 (Miss. 1996).
In addition, “[a] fiduciary relationship may arise in a legal, moral, domestic, or
personal context, where there appears ‘on the one side an overmastering
influence or, on the other, weakness, dependence, or trust, justifiably reposed.’”
Lowery v. Guar. Bank & Trust Co., 592 So. 2d 79, 83 (Miss. 1991) (quoting Miner
v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988)). In those cases, “such justifiable
reliance must have necessarily caused the first party to be lulled into a false
sense of security so that the first party did not protect his own interest as he
might have ordinarily.” Deramus v. Jackson Nat’l Life Ins. Co., 92 F.3d 274, 278
(5th Cir. 1996) (interpreting Lowery).
      Although the annuity contract between Reed and Allstate was a
contractual agreement, Parnell does not frame her arguments in terms of the
Hopewell standard.4 Instead, she essentially offers four arguments in support


      4
       Parnell argues that Hopewell should not apply because the annuity contract was not
an arms-length transaction; however, that argument is unpersuasive. The purpose of the
Hopewell test appears to be to identify those contracts that are not ordinary arms-length

                                           8
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of the existence of a fiduciary duty. As the discussion below demonstrates, none
of these arguments are persuasive. Moreover, Parnell cannot satisfy any of the
elements of the Hopewell test.
       1.     Fiduciary relationship based on trust
       Parnell first argues that a fiduciary duty arose because Reed had a
relationship of trust with Allstate’s agents. Parnell acknowledges that her only
evidence of trust or confidence is the fact that Reed met with the agents on three
occasions and eventually purchased an annuity from them.
       When there is a history of dealings between parties that creates a special
relationship of trust and reliance, Mississippi courts sometimes find the
existence of a fiduciary duty.        In Lowery, the Mississippi Supreme Court
considered whether a bank had a fiduciary duty to inform the Lowerys that the
credit life insurance they had purchased to secure a promissory note would
expire on the note’s due date. 592 So. 2d at 85. The Lowerys had a history of
dealing with one of the bank’s agents with respect to that promissory note and
others, as well as with respect to the credit life insurance they had purchased to
secure the notes. Id. The court emphasized that the agent “had dealt with the
Lowerys on each of their notes,” that the agent “was basically their loan officer,”
that “Mrs. Lowery knew very little about the notes,” and that on several
occasions the agent had advised the Lowerys about how to handle the notes and
insurance. Id. The court concluded that “because of their history of dealings
with [the bank] and because the bank placed the notes on hold until Mr. Lowery
could come in to take care of them, the Lowerys relied on that relationship and
placed trust and confidence in [the bank] to the point of being less vigilant about
the coverage of the credit life insurance than they had been in the past.” Id. The




transactions because they involve mutual benefit, common interest, trust, and control.

                                             9
                                  No. 07-60555

court then held that there was a question of fact concerning whether the bank
had a fiduciary relationship with the Lowerys. Id.
      In contrast, where there is no evidence of a history of prior dealings that
would give rise to a special trust relationship, no fiduciary relationship exists.
Reliance on the advice of an insurance agent during the purchase of insurance
does not create a fiduciary relationship, even where the parties have a prior
social relationship. Booker v. Am. Gen. Life & Accident Ins. Co., 257 F. Supp. 2d
850, 860-62 (S.D. Miss. 2003) (holding that individuals who purchased insurance
from agents with whom they were socially acquainted could not maintain claims
for breach of fiduciary duty because the purchases were merely short-term,
arms-length transactions, there was no evidence the agents had provided any
advice other than advice related to the purchases of the insurance policies, and
there was no history of prior dealings that would have justified the purchasers’
relaxed vigilance). Moreover, mere unilateral trust in an agent selling an
annuity does not create a fiduciary duty to inform the client of all implications
of the transaction. See Pac. Life Ins. Co. v. Heath, 370 F. Supp. 2d 539, 544
(S.D. Miss. 2005) (holding that an individual’s unilateral trust that her broker-
dealer would explain to her the implications of a variable annuity contract she
signed did not establish a fiduciary relationship or a duty to explain the
implications of an arbitration agreement in the contract). Similarly, a bank has
no fiduciary duty to orally explain all of the implications of a purchase of a
Certificate of Deposit. See Union Planters Nat’l Bank, N.A. v. Jetton, 856 So. 2d
674, 677 (Miss. Ct. App. 2003) (reversing a lower court’s holding that a bank had
a fiduciary duty to explain to a customer the possible negative implications of
placing her son’s name on her Certificate of Deposit, reasoning, “There were no
previous dealings with the bank, this was nothing more than a normal
customer/bank transaction and there was no reason for [the customer] to have



                                       10
                                  No. 07-60555

justification in a belief that [the bank] owed her some heightened duty beyond
that of any other bank and customer under the same circumstances.”).
      In light of these cases, Parnell cannot demonstrate a fiduciary relationship
between Reed and Allstate’s agents based on trust. In contrast to the long
history of dealings related to financial matters that was present in Lowery, here
the only dealings Reed had with Allstate’s agents were those related to the
purchase of the annuity itself, as well as some social interactions with Helwick.
In addition, there is no evidence that Reed actually trusted Allstate’s agents or
relied on their advice, such that he was less vigilant than he would have been
absent a special relationship.       The only evidence available is to the
contrary—Madden stated that Reed seemed savvy and sharp about investments
and that he asked the right questions. Reed’s reluctance to give Allstate’s agents
information about his income and net worth also demonstrates that Reed was
not simply entrusting his financial matters to the agents. We reject Parnell’s
assertion that Reed’s meetings with Allstate’s agents, combined with his
purchase of the annuity, demonstrate evidence of trust; that is the sort of
evidence that would be present in almost any commercial transaction and does
not suggest a special trust relationship. Like the customers in Booker, Heath,
and Jetton, Reed was simply a customer who conducted a single arms-length
transaction with some agents. There was no history of prior dealings or other
evidence that would have justified him in relaxing his normal vigilance.
      2.    Fiduciary relationship based on Reed’s physical and mental
            weakness

      Parnell’s second argument is that a fiduciary duty arose due to the fact
that Reed was mentally and physically weak. She notes that Reed was dying of
cancer and that he had experienced cognitive problems—his confusion over the
time of day prior to the annuity purchase and his diagnosis of dementia two
months after the annuity purchase.          Parnell cites two Mississippi cases

                                       11
                                  No. 07-60555

suggesting that weakness of mind or body can contribute to a finding of a
fiduciary-like relationship.   However, those cases do not support Parnell’s
argument, because they involved strong relationships of trust or dependence in
addition to mental and physical weakness. See Miner, 530 So. 2d at 169-71
(holding that an ill ninety-two-year-old man’s dependence on his sons for his
home, living expenses, physical needs, and doctor visits gave rise to a
presumption of a confidential relationship between the father and sons); Bunch
v. Shannon, 46 Miss. 525, 526 (1872) (ordering rescission of a land exchange
agreement between Bunch and his longtime friend, where Bunch was a man of
“mental imbecility and ignorance” who had placed the “most implicit confidence”
in the friend, and the friend abused his influence over the “weak, unsuspecting,
and confiding” Bunch by arranging for Bunch to receive a worthless deed).
Because there is no evidence of trust, confidence, or dependence in this case, and
because we find no Mississippi cases supporting the proposition that mental and
physical weakness alone can form the basis of a fiduciary duty, Parnell cannot
establish a fiduciary duty on this ground.
      3.    Fiduciary relationship based on Allstate’s agents’ position as
            “financial advisors”

      Parnell’s third argument is that Helwick and Madden were Reed’s
financial advisors and that a financial advisor has an inherent fiduciary duty to
her clients. She cites Western Reserve Life Assurance Co. v. Graben, 233 S.W.3d
360 (Tex. Ct. App. 2007), for this proposition. However, Graben is a Texas case,
and we are obligated to follow Mississippi law. In addition, Graben does not
support Parnell’s position because it involved completely different facts. In
Graben, the broker represented himself as a financial advisor who would
monitor and manage his clients’ investments, he repeatedly provided advice to
his clients about their financial plans, and he admitted that he viewed his
relationship with his clients as a “very sacred trust” that went beyond mere

                                       12
                                         No. 07-60555

mutual benefit. Id. at 365, 373-74. In addition, the clients in Graben told the
broker that they were dependent on him for his counsel, advice, and experience,
and they actually relied on his advice. Id. at 367. None of those facts are
present here. Thus, Parnell cannot establish a fiduciary duty based on Graben.
       4.      Fiduciary relationship based on Allstate’s internal documents
       Parnell’s fourth argument is that Allstate’s own internal documents
created a fiduciary duty to Reed. Allstate’s Marketing Agreement with Hancock
states that an agent “shall not recommend the purchase of a Contract to a
prospective purchaser unless it has reasonable grounds to believe that such
purchase is suitable for the prospective purchaser . . . [A] determination of
suitability shall be based on information concerning the prospective purchaser’s
insurance and investment objectives and financial situation and needs.” Parnell
argues that these statements created a fiduciary duty obligating the agents to
conduct a suitability review before selling Reed the annuity. However, Parnell
cites no Mississippi or other authority supporting the proposition that the mere
existence of an internal guideline can create a fiduciary duty.5 Moreover, in a
similar case, the Mississippi Supreme Court held that the existence of an
industry custom or standard did not establish a fiduciary duty. See Puckett, 587
So. 2d at 281-82 (holding that the fact that commodities brokers had a custom
or standard of warning customers against making imprudent trades did not
establish a fiduciary duty to make such warnings, at least where there was no
evidence that the clients knew about or relied on the custom or standard). We
therefore reject Parnell’s argument that these documents create a genuine issue
of material fact as to the existence of a fiduciary duty. We also reject her
argument that the district court impermissibly limited discovery of documents

       5
          Parnell relies primarily on Rupert v. Clayton Brokerage Firm of St. Louis, 737 P.2d
1106, 1109 (Co. 1987), which is inapposite. The court in Rupert did not use a broker’s internal
rule to establish the existence of a fiduciary duty. Rather, it used the rule to help establish the
breach of a fiduciary duty where the fiduciary duty already existed. Id.

                                               13
                                     No. 07-60555

related to Allstate’s standards for determining the suitability of annuities,
because she has failed to establish that any such discovery could have helped her
demonstrate the existence of a fiduciary duty or could have altered the outcome
of this case in any other way.
      In sum, none of Parnell’s arguments support a finding that a fiduciary
relationship could exist in this case. The discussion above also establishes that
Parnell has not satisfied the Hopewell test for when a fiduciary relationship
exists in the context of a contractual agreement. See 680 So. 2d at 816. First,
there is no evidence that Allstate’s agents went beyond acting on their own
behalf at any time when they suggested and discussed annuity purchases Reed
might make from Allstate. Second, the parties had no common interest and
would not profit from one another’s activities, as would have been the case if
they had a shared interest in a business venture. Third, as discussed above,
there is no evidence that Reed placed any trust in Helwick or Madden beyond
that which would be present in any commercial transaction. Fourth, although
Reed was physically and mentally weak, and although Allstate’s agents were
aware of his physical weakness, there is no evidence that Allstate’s agents had
any dominion or control over him. In sum, there is insufficient evidence to
create a genuine issue of material fact concerning the existence of a fiduciary
duty.6 Therefore, the district court did not err in granting summary judgment
to Allstate on Parnell’s breach of fiduciary duty claim.
C.    Fraud claims
      Parnell asserts that Allstate’s agents fraudulently induced Reed to
purchase the annuity. In Mississippi, a plaintiff claiming fraud must prove the
following elements by clear and convincing evidence: (1) a representation, (2) its


      6
        Because the fiduciary duty did not exist, we need not discuss Parnell's arguments
about the ways in which it was allegedly breached or whether rescission would be an
appropriate remedy for such a breach.

                                           14
                                       No. 07-60555

falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance
of its truth, (5) his intent that it should be acted on by the hearer in the manner
reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) reliance on
its truth, (8) right to rely thereon, and (9) consequent and proximate injury.
GMAC v. Baymon, 732 So. 2d 262, 269-70, 275 (Miss. 1999).
       Parnell first contends that Allstate’s agents made false representations to
Reed to pressure him to liquidate his investments and place them into an
annuity. She notes that Allstate’s agents told Reed on July 7 that he could
purchase an annuity paying seven percent but told him on July 15 that the
annuity was no longer available. As evidence that the July 15 statement was
false, Parnell points to an ambiguous interrogatory response in which Allstate
stated that the annuity was available on either August 1 or August 5.7 She
argues that this shows a genuine issue of fact concerning whether the product
was available on August 1. However, the material question is whether the
annuity was available on July 15, when Allstate’s agents stated that it was
unavailable.      Parnell offers no evidence to show a genuine issue of fact
concerning whether the annuity was available on July 15.
       Parnell also asserts that Allstate’s agents committed fraud by failing to
provide Reed with information concerning the suitability of the annuity for a
man of his age, health, and expenses. Under Mississippi law, “a claim of fraud
by omission arises only where the defendant had a duty to disclose material facts
purportedly omitted.” Taylor v. S. Farm Bureau Cas. Co., 954 So. 2d 1045, 1049
(Miss. Ct. App. 2007). Such a duty “generally arises only where there is a
fiduciary relationship between the parties.” Id. As discussed above, there was




       7
         The interrogatory asked, “Explain whether a . . . variable annuity with a fixed account
paying 7% was available for Charles Thomas Reed to purchase on August 1, 2003.” Allstate
replied, “Yes, [Allstate] had a variable annuity fixed account paying 7% interest on 8/5/03.”

                                              15
                                       No. 07-60555

no fiduciary relationship between the parties. In sum, therefore, the district
court did not err in granting summary judgment on Parnell’s fraud claims.
D.     Unjust enrichment claim
       Parnell has waived any claim of unjust enrichment, as her brief on the
issue contains no citations or legal arguments. See Audler v. CBC Innovis Inc.,
519 F.3d 239, 255 (5th Cir. 2008) (“A party waives an issue if he fails to
adequately brief it” (internal quotation marks omitted)); see also FED. R. APP. P.
28(a) (“The appellant’s brief must contain . . . appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.”). Moreover, even if she had not waived the claim,
she cannot prevail because she has produced no evidence that Allstate was
unjustly enriched when it accepted Reed’s money in exchange for providing him
with an annuity. In addition, the annuity agreement was a contract, and unjust
enrichment is unavailable where an express legal contract exists between the
parties. See Cherry Bark Builders v. Wagner, 781 So. 2d 919, 922 (Miss. Ct. App.
2001).
E.     Deceptive trade practices claims
       Parnell asserts that Allstate violated a Mississippi statute prohibiting
unfair or deceptive trade practices. See MISS. CODE. ANN. § 75-24-5.8 Section 75-
24-5 prohibits “[u]nfair methods of competition affecting commerce and unfair
or deceptive trade practices in or affecting commerce.” Parnell argues that
Allstate engaged in unfair and deceptive trade practices by (1) promising Reed
an annuity paying seven percent interest, (2) passing off the annuity as being
suitable for Reed and/or failing to discuss the possible negative consequences it
could have for him, and (3) generally engaging in deceptive or unfair trade

       8
         In the district court, Parnell also alleged violations of Mississippi Code § 83-5-33.
Allstate responded by arguing that no private right of action exists under that section. Parnell
has not challenged the district court’s grant of summary judgment on this ground; accordingly,
any alleged error is waived.

                                              16
                                       No. 07-60555

practices by luring and pushing Reed to purchase a long-term investment
product to make a commission and meet a quota. However, there is no evidence
that Allstate’s agents promised Reed an annuity with a seven percent rate; the
evidence shows only that they told him on one date that the annuity was
available, he did not purchase it then, and it was unavailable on a later date.
There is also no evidence that Allstate’s agents’ failure to discuss the suitability
of the annuity was “unfair,” given that Parnell identifies no Mississippi law that
would have imposed a duty on Allstate’s agents to conduct such discussions. In
addition, there is no evidence that Allstate’s agents lured or pushed Reed to
purchase the annuity, but only that they offered it as a possibility and he
decided to purchase it.
       In sum, Parnell has produced no evidence or authority to support her
contention that Allstate deceived Reed or that Allstate’s actions were unfair
within the meaning of the statute.              Parnell’s unsupported assertion that
Allstate’s practices were “deceptive” or “unfair” is not sufficient to prevent
summary judgment on her § 75-24-5 claim.9
F.     Mississippi Vulnerable Adults Act (“MVAA”) claim
       Parnell contends that when Allstate accepted Reed’s payment for the
annuity, Allstate violated the provision of the MVAA that states,
       Any person employed by a care facility or having a professional
       relationship with a care facility who receives or accepts a gift,
       money, or thing of value in excess of Twenty-five Dollars ($25.00)
       from a patient or resident of the care facility shall make a written
       report of the acceptance or receipt of the gift, money, or thing of
       value to the administrator . . . at the care facility.


       9
          Parnell asserts that Allstate moved for summary judgment on this claim only on the
basis of Parnell’s failure to exhaust administrative remedies, not on the merits of the claim.
However, Allstate stated in its brief in support of the motion, “Parnell has failed to establish
any viable cause of action against Allstate. Inasmuch as Parnell has failed to establish any
underlying wrong that would support a claim under this Act, the claim for violation of this Act
also fails.” We conclude that Allstate properly raised this ground.

                                              17
                                   No. 07-60555

MISS. CODE ANN. § 43-47-8(1). Violation of this provision is a misdemeanor. Id.
§ 43-47-8(3).
      Even assuming, arguendo, that Allstate’s relationship with AFRH-G
constitutes a professional relationship with a care facility under the MVAA,
Parnell has failed to show that the MVAA provides for a private right of action.
Under Mississippi law, “the party claiming the right of action must establish a
legislative intent, express or implied, to impose liability for violations of that
statute.” Doe v. State ex rel. Miss. Dep’t of Corr., 859 So. 2d 350, 355 (Miss.
2003).   Moreover, “Unless the legislative intent can be inferred from the
language of the statute, the statutory structure, or some other source, the
essential predicate for implication of a private remedy simply does not exist.”
Id. at 356. The MVAA is penal in nature and provides for criminal penalties for
violations of § 43-47-8. Parnell argues that the MVAA also provides for a private
remedy, citing the statement in § 43-47-8(4) that “nothing in this section shall
preclude legal proceedings against any person who steals, embezzles or
misappropriates the property of such patient or resident or who otherwise
exploits such a patient.” We disagree; the more natural reading of § 43-47-8(4)
is that the legislature intended to make clear that the MVAA does not preclude
existing causes of action, not that it created a new cause of action. Parnell
provides no Mississippi cases or other authority in support of her argument.
After examining the MVAA as a whole, we find no basis from which we can infer
a legislative intent to create a private cause of action for violations of § 43-47-8.
Therefore, the district court did not err in granting summary judgment on this
claim.
G.    Civil conspiracy claim
      Parnell claims that Helwick and Madden were engaged in a civil
conspiracy to defraud, exploit, and/or impermissibly profit from Reed by selling
him an unsuitable investment. In Mississippi, “a conspiracy is a combination of

                                         18
                                  No. 07-60555

persons for the purpose of accomplishing an unlawful purpose or a lawful
purpose unlawfully.” Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So. 2d 777,
786 (Miss. 2004) (internal quotation marks omitted). Parnell cannot prevail on
her civil conspiracy claim for two reasons. First, as discussed above, she has not
produced any evidence that Allstate planned any acts that were unlawful or that
had an unlawful purpose. Second, “[a] corporation cannot conspire with itself
any more than a private individual can, and it is the general rule that the acts
of the agent are the acts of the corporation.”    Nelson Radio & Supply Co. v.
Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1953). Here, Helwick and Madden
were acting in their capacities as agents of Allstate, so Allstate could not have
conspired with them. See Ross v. Citifinancial, Inc., No. CIV.A. 5:01-CV-185BN,
2002 WL 461567, at *11 (S.D. Miss. Mar. 18, 2002) (holding that plaintiffs could
not prevail on a claim that individual agents had conspired with their corporate
employer where there was “no evidence in the record that the individual
Defendants acted outside their employment capacities” (internal quotation
marks omitted)). Therefore, the district court did not err in granting summary
judgment on this claim.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to Allstate on all of Parnell’s counterclaims.
      AFFIRMED.




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