Kelvin Travis v. GMAC Mortgage, LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-01790-COA

KELVIN TRAVIS, CAROLYN TRAVIS, AND APPELLANTS
ALL PERSONS OR ENTITIES AND ALL
UNKNOWN PARTIES IN INTEREST
CLAIMING AN INTEREST IN THE REAL
PROPERTY AND IMPROVEMENTS
DESCRIBED HEREIN

v.

GMAC MORTGAGE, LLC APPELLEE

DATE OF JUDGMENT: 10/12/2015
TRIAL JUDGE: HON. DAWN H. BEAM
COURT FROM WHICH APPEALED: PERRY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: MAURICE MCINTOSH FORSYTH
ATTORNEYS FOR APPELLEE: TERRY L. CAVES
RISHER GRANTHAM CAVES
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: ORDERED DIVESTITURE AND
EXCHANGE OF REAL PROPERTY FROM
KELVIN AND CAROLYN TRAVIS TO
GMAC MORTGAGE LLC
DISPOSITION: AFFIRMED - 03/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

LEE, C.J., FOR THE COURT:

¶1. In this appeal, we must decide whether the chancellor abused her discretion when,

applying the doctrines of equitable estoppel and unjust enrichment, she ordered the

divestiture and exchange of certain real property from Kelvin and Carolyn Travis to GMAC

Mortgage LLC. Finding no abuse of discretion, we affirm.
FACTS AND PROCEDURAL HISTORY

¶2. In 2002, Donald Travis received a deed from R.C. Travis and Charles Travis, his

father and uncle, to a parcel of land identified as Parcel A, located in Perry County,

Mississippi. Donald and his wife, Joe Ann Travis, contracted with DIMA Homes to

construct a house on the property described as Parcel A. They pledged the property as

security for the construction loan. DIMA built the home according to Donald’s instructions,

on what was believed to be Parcel A. Donald believed the house was built within the

boundaries of the deed. Donald and Joe Ann signed a promissory note and deed of trust with

Homecomings Financial Network Inc., pledging the house, improvements, and the land

described as Parcel A as security for the loan. Homecomings Financial Network paid off the

DIMA construction loan.

¶3. Donald and Joe Ann lived in the home from May 2003 until sometime in 2010 when

they defaulted on the loan. Homecomings Financial Network assigned the deed of trust and

note to Nationstar Mortgage LLC in November 2010. The property went into foreclosure.

During that time, Donald’s brother and sister-in-law, Kelvin and Carolyn Travis, negotiated

to purchase the home from Nationstar. Pursuant to the sale, a title search and survey were

performed, and the survey revealed that the house was located partly off of Parcel A. In fact,

the house was located partly on Parcel A, Parcel B, and Parcel C. Donald and Kelvin’s

mother owned Parcels B and C. Due to the location of the house, the contract for the sale of

the home was cancelled.

¶4. In January 2011, Nationstar foreclosed its deed of trust and conveyed the property to

2
Federal National Mortgage Association. Around the same time, Kelvin obtained a deed from

his mother to Parcels B and C. He admitted at trial that he believed this would enable him

to secure a lower purchase price of the house. Federal National Mortgage Association

conveyed its interest in the property to GMAC Mortgage LLC in February 2012. After

GMAC acquired the property, it learned that the house was not completely located on Parcel

A.

¶5. In July 2012, Kelvin and Carolyn moved in to the house and lived there for

approximately three years, rent free. Kelvin claimed that he made improvements prior to

moving in to the property, but was unable to show any evidence of expenditures. He stated

that he believed he would eventually obtain title to the house and Parcel A, but admitted

knowing all along that GMAC claimed title to Parcel A. Kelvin further admitted that neither

he, nor Travis, nor their mother objected to the location of the home during its construction.

¶6. GMAC filed suit in the Perry County Chancery Court against Kelvin and Carolyn

(Travises) with claims of equitable estoppel, unjust enrichment, constructive trust, and

ejectment. The Travises filed an answer but did not plead any affirmative defenses or assert

any counterclaims. GMAC proposed to the chancellor a property exchange wherein the

Travises would receive a 1.12-acre tract of land—an acreage equal to Parcels B and C; and

GMAC would receive a two-acre tract of land containing the house—an acreage equal to

Parcel A. The chancellor found that the Travises were not bona fide purchasers for value,

and their occupation of the home constituted unjust enrichment. Applying the doctrines of

equitable estoppel and unjust enrichment, the chancellor adopted the proposed exchange of

3
land, imposed a constructive trust, and ordered the ejectment of the Travises from the home.

The Travises now appeal.

STANDARD OF REVIEW

¶7. Appellate courts review appeals from a chancery court under a limited standard of

review. Ward v. Harrell, 186 So. 3d 410, 412 (¶11) (Miss. Ct. App. 2016) (internal citations

omitted). “We will not disturb the chancellor’s factual findings if they were supported by

substantial evidence.” Id. We will reverse the chancellor only if she abused her discretion,

was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Id.

DISCUSSION

¶8. For the first time on appeal, the Travises argue that GMAC, through its predecessors

in interest, had a duty to survey the land the subject home was constructed on. The Travises

further contend that Donald was subjected to uneven bargaining power with DIMA Homes

during construction of the house. In addition to being barred, we find these arguments lack

merit.

¶9. It is well-settled law that issues not raised at trial are procedurally barred on appeal.

Conley v. Wright, 193 So. 3d 663, 666 (¶12) (Miss. Ct. App. 2016) (citing Southern v. Miss.

State Hosp., 853 So. 2d 1212, 1215 (¶5) (Miss. 2003)). Not only did the Travises fail to raise

these issues at trial, they also failed to plead any affirmative defenses or bring any

counterclaims whatsoever before the chancery court. Additionally, in their brief before this

Court, the Travises fail to cite any relevant legal authority to support their argument. We

have previously held that “[f]ailure to cite to relevant authority results in a waiver of the issue

4
on appeal.” McKnight v. State, 187 So. 3d 635, 653 (¶66) (Miss. Ct. App. 2015) (quoting

Bennett v. State, 933 So. 2d 930, 953 (¶86) (Miss. 2006)). The Travises’ failure to bring their

arguments before the chancery court, as well as their failure to present any relevant legal

authority before this Court, waived the consideration of their claims on appeal.

¶10. Notwithstanding waiver of their claims, the Travises’ contention that the chancellor

was manifestly wrong is without merit. We note that a “chancellor’s remedial powers have

long been marked by plasticity.” Scafidi v. Hille, 180 So. 3d 634, 654 (¶67) (Miss. 2015)

(citing Hall v. Wood, 443 So. 2d 834, 843 (Miss. 1983)). And “[e]quity jurisdiction permits

innovation that justice may be done.” Id. In applying the doctrine of equitable estoppel, the

Mississippi Supreme Court has stated the following:

[I]f one man knowingly, though he does it passively by looking on, suffers
another to purchase, and expend his money on land, under an erroneous
opinion of title, without making known his claim, he should not afterwards be
permitted to exercise his legal right against such person. It would be an act of
fraud and injustice, and his conscience is bound by an equitable estoppel.

Elchos v. Haas, 178 So. 3d 1183, 1193-94 (¶31) (Miss. 2015).

¶11. Here, the chancellor found that the Travises—including Donald, Kelvin, and their

mother—passively looked on while GMAC’s predecessor in interest (DIMA) built the home

on Parcels A, B, and C, without ever making known their claims to Parcels B and C.

Accordingly, the chancellor found they were equitably estopped from claiming title to the

house and the portions of land upon which it was constructed.

¶12. In regard to the chancellor’s application of unjust enrichment and constructive trust,

our supreme court has made it clear they are equitable remedies. Germany v. Germany, 123

5
So. 3d 423, 431 (¶20) (Miss. 2013) (citing McNeil v. Hester, 753 So. 2d 1057, 1064 (¶24)

(Miss. 2000)). The supreme court has stated, and the chancellor so noted, that “[u]njust

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.” Ground Control LLC v. Capsco Indus. Inc.,

120 So. 3d 365, 371 (¶13) (Miss. 2013) (internal citations and quotation marks omitted).

And a constructive trust is “created for the purpose of preventing unjust enrichment by one

who holds legal title to property which, under principles of justice and fairness, rightfully

belongs to another.” Jackson v. Mills, 197 So. 3d 430, 439 (¶37) (Miss. Ct. App. 2016)

(citing McNeil, 753 So. 2d at 1064 (¶24)).

¶13. Here, the chancellor found that the Travises were not bona fide purchasers of Parcels

B, C, or the house, as they did not pay any value for the land or home, and they occupied the

home with actual notice of GMAC’s claim of right. As such, the chancellor found that the

Travises’ occupation of GMAC’s property, without payment of value, constituted unjust

enrichment and warranted the imposition of a constructive trust. Further, the property

exchange ordered by the chancellor gave the Travises a tract of land commensurate with the

size and value of Parcels B and C as originally conveyed to them in 2011. We do not find

that the chancellor was manifestly wrong in her application of these equitable doctrines to

fashion the remedy herein. Therefore, the Travises’ claim is without merit.

¶14. THE JUDGMENT OF THE PERRY COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

6
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

7