        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00599-COA

LAMAR D. BOND                                                             APPELLANT

v.

LEE N. BOND AND JENNIFER M. BOND                                           APPELLEES

DATE OF JUDGMENT:                         03/31/2017
TRIAL JUDGE:                              HON. MICHAEL L. FONDREN
COURT FROM WHICH APPEALED:                JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   E. FOLEY RANSON
ATTORNEYS FOR APPELLEES:                  G. CHARLES BORDIS IV
                                          JOSHUA WESLEY DANOS
NATURE OF THE CASE:                       CIVIL - REAL PROPERTY
DISPOSITION:                              AFFIRMED: 10/30/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Lamar Bond spent a substantial amount of money building a workshop and apartment

on the homestead of his son and daughter-in-law, Lee and Jennifer Bond. Lamar lived in the

apartment for a couple of years until Lee—a police officer—discovered Lamar was using

marijuana regularly. Lee and Jennifer had Lamar removed from the property, and Lamar

ultimately brought suit against them, alleging that Lee and Jennifer had violated an

agreement that Lamar could reside on their property for the remainder of his life.

¶2.    At trial, Lee and Jennifer disputed Lamar’s claim, contending that his stay was

intended to be temporary, until his divorce was finalized. They alleged Lamar spent the

money to dissipate his assets prior to the divorce and that the money was a gift, which was
intended to be an advance on Lee’s inheritance and a project for a father and son after years

of estrangement. Lee and Jennifer further claimed the apartment was ultimately intended to

be used for visits by extended family and not by Lamar as a permanent residence. Lee’s three

brothers also testified that their father had never told them he planned to reside in the

apartment permanently.

¶3.    The chancellor decided that Lee’s and Jennifer’s testimonies were more credible and

found that there had been no promise to let Lamar live in the apartment indefinitely. The

court concluded that Lamar was not entitled to a constructive trust or an equitable lien on the

property. On appeal, Lamar challenges these findings, but we find them supported by

substantial evidence and affirm.

                               STANDARD OF REVIEW

¶4.    This Court employs “a limited standard of review in appeals from . . . chancery

court[s].” Corp. Mgmt. Inc. v. Greene County, 23 So. 3d 454, 459 (¶11) (Miss. 2009) (citing

Tucker v. Prisock, 791 So. 2d 190, 192 (¶10) (Miss. 2001)). As such, appellate courts will

not disturb a chancery court’s factual findings “when supported by substantial evidence

unless the [court] abused [its] discretion, was manifestly wrong, clearly erroneous[,] or

applied an erroneous legal standard.” Id. (quoting Biglane v. Under The Hill Corp., 949 So.

2d 9, 13-14 (¶17) (Miss. 2007)). Questions of law, however, will be reviewed de novo. Id.

                                       DISCUSSION

       1.     Equitable Lien


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¶5.    At trial, Lamar claimed he was entitled to a constructive trust regarding the property,

but the chancery court found that issue foreclosed upon by Lamar’s failure to show that a

confidential relationship existed among him, Lee, and Jennifer.          On appeal, Lamar

abandoned that claim; he instead argues he is entitled to an equitable lien. The chancery

court can grant an equitable lien to prevent unjust enrichment “where it would be contrary

to equity and good conscience for an individual to retain a property interest acquired at the

expense of another.” Neyland v. Neyland, 482 So. 2d 228, 230 (1986).

¶6.    Lee and Jennifer contend that this issue is procedurally barred on appeal because

Lamar did not expressly seek an equitable lien in his complaint in the chancery court. The

record reveals that the issue was suggested in the original pleadings, and it was clearly

articulated in briefing and arguments prior to the judgment. Lee and Jennifer made no

objection. “Where a party offers no timely objection, we treat the issue as having been tried

by implied consent.” Queen v. Queen, 551 So. 2d 197, 200 (Miss. 1989). Thus, the question

of an equitable lien is squarely before us on appeal.

¶7.    The chancery court denied relief on this particular claim based on the statute of

frauds.1 The court noted that the Mississippi Supreme Court held in Barriffe v. Estate of



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         There might have been a potential issue with waiver of this defense because the
statute of frauds is an affirmative defense that must be timely asserted by the defendant; and
arguably it was not in this case. See Brown v. Gravlee Lumber Co., 341 So. 2d 907, 912
(Miss. 1977). But Lamar has not argued waiver, and, thus, he has waived the issue. See
Thornton v. Freeman, 242 So. 3d 188, 190 (¶3) (Miss. Ct. App. 2018) (explaining that
“waiver . . . can itself be waived”).

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Nelson, 153 So. 3d 613, 620-21 (¶36) (Miss. 2014), that “an equitable lien is not appropriate

to enforce a contract that otherwise fails to meet the requirements of the statute of frauds.”

“Under Mississippi’s statute of frauds, contracts involving the transfer of real property must

be in writing.” Id. Our supreme court quoted, with approval, the New Mexico Supreme

Court’s holding in Van Sickle v. Keck, 81 P.2d 707, 710 (N.M. 1938): “A court of equity will

not relieve an individual from the operation of the statute of frauds, which requires that

interest in lands be created by an instrument of writing, and impose an equitable lien upon

the land in favor of one who makes improvements thereon knowing that the title is in

another.” Bariffe, 153 So. 3d at 621 n.22.

¶8.    Lamar conceded that he knew the title to the property was held by Lee and Jennifer.

So, like the chancery court, we are bound by the supreme court’s holding in Barriffe that the

statute of frauds bars an equitable lien. This issue is without merit.

       2.     Restitution

¶9.    Finally, we address Lamar’s claim for money damages. He appears to argue he is

entitled to restitution for unjust enrichment. Our analysis of this issue is complicated by the

paucity of argument in the chancery court (and, indeed, on appeal). In Lamar’s complaint

“for a constructive trust,” he also contended he was entitled to a money judgment for the

money he gave Lee and Jennifer (or the money he allowed them to take). Lamar contended

that Lee and Jennifer used their authority as joint owners of Lamar’s retirement account to

transfer about $158,000 to their own bank account and then spent or converted it. Lee and


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Jennifer said Lamar transferred the funds and then used Lee’s debit card to spend most of the

money; the rest was given to them for living expenses while Lamar stayed with them and

while Lee could not work while building the disputed workshop/apartment. Voluminous

bank records were introduced at trial, but neither side made much effort to trace where the

money went; both sides said the other would know how the money was spent. Lamar claims

he is entitled to restitution for the value of the improvement and for the money that was taken

above and beyond the realistic cost of constructing it, which comes out to about $120,000.

¶10.   But despite alleging that he was entitled to a money judgment in his complaint, Lamar

never expressly articulated a cause of action that entitled him to recover it; unjust enrichment

is only addressed, in cursory fashion, in his contentions concerning constructive trusts and

equitable liens (of which unjust enrichment is an element). Restitution is never mentioned

at all. The chancery court, in its judgment, noted that Lamar sought money damages, but it

did not address them directly except perhaps when it stated in closing that “all other relief

is denied.” The chancellor did say he found Lee’s and Jennifer’s testimonies credible, and

Lamar’s not; but he did not explicitly resolve the many of the factual disputes surrounding

Lamar’s unjust enrichment theory, nor did he make any express finding that is dispositive of

the claim.

¶11.   This case is appropriate for the application of the oft-repeated maxim that “where a

chancellor does not make explicit findings, [appellate courts] will assume that all disputed

issues were resolved in favor of the appellees.” Ross v. Brasell, 511 So. 2d 492, 495 (Miss.


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1987). Lee and Jennifer testified that Lamar gave them the money as a gift, without

conditions. Lamar testified otherwise. The factual issue raised and the finding by the

chancellor that the children were more credible than Lamar is sufficient to defeat Lamar’s

unjust enrichment claim; there is nothing unjust in Lee and Jennifer being enriched by a gift,

nor in Lamar not being able to take it back. See Cates v. Swain, 215 So. 3d 492, 496 (¶¶18-

19) (Miss. 2013).

¶12.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.            IRVING, P.J, NOT
PARTICIPATING.




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