IN THE SUPREME COURT OF MISSISSIPPI
NO. 2023-CA-00127-SCT
ACE AMERICAN INSURANCE COMPANY, ALLIANZ GLOBAL RISKS US INSURANCE COMPANY, AXIS SPECIALTY EUROPE S.E., ENDURANCE WORLDWIDE INSURANCE LIMITED, HELVETIA SWISS INSURANCE COMPANY, LTD., HOUSTON CASUALTY COMPANY, MS AMLIN CORPORATE MEMBER LIMITED, NAVIGATORS MANAGEMENT COMPANY, INC., PARTNER RE IRELAND INSURANCE DAC, SWISS RE INTERNATIONAL S.E., LUXEMBOURG, ZURICH BRANCH, XL INSURANCE AMERICA, INC., ZURICH AMERICAN INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., OKLAHOMA SPECIALTY INSURANCE COMPANY, QBE INSURANCE (EUROPE) LIMITED, HDI GLOBAL INSURANCE COMPANY, SCOR UK COMPANY LIMITED, XLC 2003, ASPEN SPECIALTY INSURANCE COMPANY, AXIS MANAGING AGENCY LTD. FOR AXIS SYNDICATES 1686 AND 2007 F/K/A NOVAE SYNDICATE 2007, GREAT LAKES INSURANCE SE, TALBOT UNDERWRITING LTD., MARKEL BERMUDA LIMITED, STARSTONE UNDERWRITING LIMITED, ARGO MANAGING AGENCY LIMITED, ALLIED WORLD ASSURANCE COMPANY, LTD., PIONEER NATURAL RESOURCES AS SUBROGEES OF ENTERPRISE PRODUCTS PARTNERS L.P., ENTERPRISE PRODUCTS PARTNERS L.P., AND ENTERPRISE GAS PROCESSING, LLC
v.
HETSCO, INC. DATE OF JUDGMENT: 12/28/2022 TRIAL JUDGE: HON. DALE HARKEY TRIAL COURT ATTORNEYS: J. CHADWICK MASK CHARLES E. GRIFFIN DONNA BROWN JACOBS CHRISTOPHER HERBERT COLEMAN JACK C. PICKETT JAMES GUNN, III JIM WARREN, III ROBERT P. THOMPSON PAUL P. BLAKE H. BENJAMIN MULLEN JOHN AARON EARNHARDT BRYAN ARTHUR COLEMAN COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: DONNA BROWN JACOBS CHARLES E. GRIFFIN J. CHADWICK MASK ATTORNEYS FOR APPELLEE: PAUL P. BLAKE ROBERT P. THOMPSON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: REVERSED AND REMANDED - 09/26/2024 MOTION FOR REHEARING FILED:
BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. On June 27, 2016, a gas processing plant in Moss Point was damaged due to an
explosion. Enterprise Gas Processing LLC, the owner of the plant at the time of the
explosion, filed suit against Hetsco Inc., alleging that negligent repair of the Train A Cold
Side Reboiler had caused the explosion. Hetsco contended that terms of a Proposal for
Services between Hetsco and the prior owner of the plant entitled it to summary judgment.
The circuit court agreed. This case is before this Court on appeal from the grant of summary
2 judgment in favor of Hetsco. This Court finds that genuine issues of material fact remain and
that summary judgment was premature. The circuit court’s grant of summary judgment is
reversed, and the case is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. In August 2015, a leak in the Train A Cold Side Reboiler, a brazed aluminum heat
exchanger,1 was discovered at the Pascagoula Gas Processing Plant in Moss Point. At the
time, British Petroleum (BP) owned a majority interest in the plant and controlled its
operation. Enterprise Gas Processing LLC owned a minority interest in the facility.
¶3. BP had an ongoing relationship with Hetsco Inc. (Hetsco) as a vendor that would
come and perform repairs when needed. It is alleged that Hetsco “claims over 30 years of
experience repairing heat exchangers” and “claims to have ‘Critical Vendor’ status with
many customers” due to its “vast knowledge of industry processes and equipment
operation[.]” The BP and Hetsco relationship was memorialized by a Master Service
Agreement (MSA) that expired in February 2015 prior to the repair. Emails were introduced
as summary judgment evidence showing that in June and August of 2015 there were ongoing
attempts to update the MSA. These attempts apparently failed.
¶4. Following the usual protocol, on August 25, 2015, a Purchase Order was generated
at the plant and signed by BP plant manager Richard Rose requesting that Hetsco
“inspect/repair the damaged exchanger” for an estimated cost of $20,000. The Purchase
1 The “train” is used to process natural gas. The parties represent that the facility in Moss Point contains “three separate gas processing plants consisting of various trains containing different components, as well as other piping and equipment, with the capacity of processing 1.5 billion cubic feet per day of raw gas.”
3 Order was sent via email by Gayden Hayes, a BP mechanical planner, to Scott Willard, the
director of operations at Hetsco. Rose and others were copied on the email.
¶5. The exchanger was shipped to Hetsco’s facilities in Indiana where Hetsco employees
determined the cause of the leak. On September 8, 2015, at 2:06 p.m., Scott emailed Hayes
a document entitled Proposal for Services and stated that repair on the exchanger would
proceed once approval was given.2 The Proposal for Services was a standardized document
that Scott sent for every project, even those covered under the MSA. The Proposal for
Services included terms and conditions such as a forum-selection clause, choice of law
provision, successor and assignee clause and a statute of limitations provision. Scott had
written into the document specific information on the scope of work and updated the
estimated cost to $66,900 for the project.
¶6. The same day, Hayes responded at 3:59 p.m. stating, “Thanks for the update Scott,
please proceed with the repairs with our approval. Do you want me to update the hard copy
[Purchase Order]?” From the emails in the record it is unclear that any other person was
copied on this email. It appears to only be from Hayes to Scott. Scott stated that they would
wait until the final invoice to finalize the Purchase Order. The exchanger was eventually
repaired and reinstalled.
¶7. In early 2016, Enterprise purchased BP’s majority ownership of the plant and control
of the operations. On June 27, 2016, an explosion occurred at the plant. It is alleged that the
2 The only people copied on this email were Brian Schommer, a BP plant engineer, David Leiser, an third-party inspector, Patrick Lester, a Hetsco operations coordinator and Phill Sullivan, a Hetsco repair foreman.
4 cause of the explosion was Hetsco’s negligent repair of the heat exchanger. The majority of
the damage was in the Train A Cold Side Reboiler, but “physical damage extended to Trains
B and C, as well as various shared utility, piping and support structures.” An investigation
of the damage was undertaken by the government, Enterprise and Hetsco. In March 2017,
during the investigation, Enterprise inquired of Hetsco’s counsel as to whether a contract was
in place for the repair of the exchanger. Enterprise alleges that Hetsco “unequivocally stated
that no contract existed[.]”
¶8. On November 21, 2018, Enterprise’s insurance companies, as subrogees of Enterprise,
filed suit against Hetsco in Jackson County Circuit Court. On January 7, 2019, Hetsco
responded with a Motion to Dismiss and to Stay Discovery. Hetsco attached to its motion
a copy of the Proposal for Services and argued that, according to the terms of the agreement
for the repair between it and BP, the suit had to be brought in the state of Indiana, a
contractually agreed upon two year limitations period had expired and discovery should be
stayed until resolution of its Motion to Dismiss.
¶9. The subrogees responded to the Motion to Dismiss, arguing against consideration of
evidence outside the pleadings on a motion to dismiss and arguing that this was the first time
it had ever seen the Proposal for Services between Hetsco and BP. The response further
argued that venue was proper in Jackson County where the explosion occurred, the alleged
contract did not apply and discovery should proceed.
¶10. By order, on June 6, 2019, Hetsco’s motion to dismiss was denied, and limited
discovery was granted for matters related to the Proposal for Services and other documents
5 relevant to the repair. On June 21, 2019, interrogatories, requests for admission and requests
for production of documents were propounded to Hetsco.
¶11. Another suit was filed on June 26, 2019, by Enterprise Products Partners L.P. and
Enterprise Gas Processing LLC against Hetsco and Acuren, the company responsible for
inspecting Hetsco’s repair. The judge consolidated the cases by order on October 2, 2019,
and Acuren was eventually dismissed.3 The plaintiffs became Enterprise Products Partners
L.P., Enterprise Gas Processing LLC and its various insurers (collectively, “Enterprise”).4
Hetsco is the only remaining defendant.
¶12. On August 2, 2019, Enterprise filed motions to compel responses to its discovery and
to set a hearing. Hetsco responded to the motions to compel, arguing that the discovery
sought evidence protected by attorney client privilege and the work product doctrine. The
parties attended a hearing on August 27 at which Hetsco was ordered to create and submit
a privilege log. A ruling on the motions to compel was withheld until an in-camera review
of the privilege log occurred. On November 18, 2019, Hetsco produced the privilege log.
3 The parties do not argue any issues related to that dismissal on appeal. 4 ACE American Insurance Company; Allianz Global Risks US Insurance Company; AXIS Specialty Europe S.E.; Endurance Worldwide Insurance Limited; Helvetia Swiss Insurance Company Ltd.; Houston Casualty Company; MS Amlin Corporate Member Limited; Navigators Management Company Inc.; Partner Re Ireland Insurance DAC; Swiss Re International S.E., Luxembourg, Zurich Branch; XL Insurance America, Inc.; Zurich American Insurance Company; National Union Fire Insurance Company of Pittsburgh, Pa.; Oklahoma Specialty Insurance Company; QBE Insurance (Europe) Limited; HDI Global Insurance Company; SCOR UK Company Limited; XLC 2003; Aspen Specialty Insurance Company; AXIS Managing Agency Ltd. for AXIS Syndicates 1686 and 2007 f/k/a Novae Syndicate 2007; Great Lakes Insurance SE; Talbot Underwriting Ltd.; Markel Bermuda Limited; Starstone Underwriting Limited; Argo Managing Agency Limited; Allied World Assurance Company Ltd.; and Pioneer Natural Resources
6 ¶13. On January 24, 2020, Hetsco moved for summary judgment, arguing that the repair
work was controlled by the Proposal for Services, which it claimed was binding on
Enterprise. Hetsco attached the complaint, responses to interrogatories, purchase order,
service contract, email correspondences, payment documentation and invoices. Enterprise
responded, arguing that summary judgment was premature and that Hetsco should be
equitably estopped from arguing the enforcement of the Proposal for Services. Additional
discovery ensued, and more exhibits and depositions were submitted by the parties in their
responses.
¶14. On April 16, 2021, the parties attended a final hearing at which they made their
arguments on the motion for summary judgment and other motions before the court. On
December 27, 2022, the judge entered an order granting summary judgment in favor of
Hetsco. The court stated that, after reviewing the pleadings and evidence, it found that
“Hetsco believed that Hayes was communicating BP’s acceptance of the Proposal for
Services including the terms and conditions contained therein[.]” Further, the court found
that “the subject Proposal for Services is a valid and enforceable contract.” Accordingly, the
forum-selection clause in the contract was found to be mandatory and “broad enough to
capture the tort claims of Plaintiffs.” The motion for summary judgment was granted, and
all other requests for relief were denied. Enterprise filed a notice of appeal on January 24,
2023.
ISSUES PRESENTED
¶15. Enterprise’s arguments are summarized as follows:
7 I. Whether the circuit court erred by summarily finding that Hayes had apparent authority to bind BP to the Proposal for Services.
II. Whether BP ratified the Proposal for Services.
III. Whether Enterprise can be bound by the Proposal for Services.
STANDARD OF REVIEW
¶16. This Court is reviewing the circuit court’s grant of Hetsco’s motion for summary
judgment. This Court reviews motions for summary judgment de novo. Webb v. Braswell,
930 So. 2d 387, 395 (Miss. 2006) (citing Williams v. Bennett, 921 So. 2d 1269, 1271 (Miss.
2006)). “The movant carries the burden of demonstrating that no genuine issue of material
fact exists, and the non-moving party is given the benefit of the doubt as to the existence of
a material fact.” Id. (citing McCullough v. Cook, 679 So. 2d 627, 630 (Miss. 1996)).
Accordingly, this Court is required to view the facts in the light most favorable to Enterprise
and will affirm the grant of summary judgment to Hetsco only if no genuine issues of
material fact remain.
DISCUSSION
I. Whether the circuit court erred by summarily finding that Hayes had apparent authority to bind BP to the Proposal for Services.
¶17. Hetsco argues that Hayes had authority to accept all terms and conditions of the
Proposal for Services on behalf of BP and that this contract now binds Enterprise. Enterprise
produced an affidavit from Rose, who was and is the plant manager, stating that “[t]o my
knowledge, no Plant level personnel had any authority from BP to accept terms and
conditions in a contract on behalf of BP or to otherwise bind BP to terms and conditions from
8 third parties.” Accordingly, actual authority is not argued. Instead, the issue is apparent
authority.
¶18. “Apparent authority exists when a reasonably prudent person, having knowledge of
the nature and usages of the business involved, would be justified in supposing, based on the
character of the duties entrusted to the agent, that the agent has the power he is assumed to
have.” Mladineo v. Schmidt, 52 So. 3d 1154, 1167 (Miss. 2010) (internal quotation marks
omitted) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1180 (Miss.
1990)). Three factors must be present for a finding of apparent authority: “(1) acts or
conduct on the part of the principal indicating the agent’s authority, (2) reasonable reliance
on those acts, and (3) a detrimental change in position as a result of such reliance.” Id.
(citing Williams, 566 So. 2d at 1180). “[T]he principal is bound if the conduct of the
principal is such that persons of reasonable prudence, ordinarily familiar with business
practices, dealing with the agent might rightfully believe the agent to have the power he
assumes to have.” Eaton v. Porter, 645 So. 2d 1323, 1325 (Miss. 1994) (alteration in
original) (quoting Steen v. Andrews, 223 Miss. 694, 697, 78 So. 2d 881, 883 (1955)).
“Whether an agent has the apparent authority to bind the principal is a question of fact to be
determined by the chancellor, or if in circuit court, by the jury.” Id. (citing Alexander v.
Tri-Cnty. Coop. (AAL), 609 So. 2d 401, 403 (Miss. 1992)).
¶19. The circuit court found that “the statements by Hayes, in conjunction with the
supporting documentation, indicate that Hetsco believed that Hayes was communicating BP’s
acceptance of the Proposal for Services, including the terms and conditions contained therein,
9 and based upon this acceptance, Hetsco commenced the subject repair.” The judge further
found that the Proposal was “a valid and enforceable contract.”
¶20. Enterprise, on appeal, challenges the circuit court’s finding of apparent authority by
asserting that Hetsco failed to offer “evidence of any conduct by BP from which one
reasonably could conclude this plant-level contact (Hayes) could bind his multi-billion-dollar
corporate employer to any terms and conditions, much less a forum selection clause.”
Enterprise argues that “Hetsco has offered insufficient evidence that Hayes’s apparent
authority extended to any act beyond what BP’s plant-level employees had done before:
approve the scope of work and the estimated cost.” Enterprise also argues that there is no
evidence to support the finding that Hetsco would not have done the repairs if BP had not
agreed to the boilerplate terms and conditions. Enterprise contends that the evidence shows
that the Proposal for Services was sent in response to every Purchase Order, even when the
terms of an MSA were in place.
¶21. Hetsco contends that because Hayes, as BP’s mechanical planner, had a BP email
address and title and copied Rose on the initial purchase order for the repair, BP gave the
impression that Hayes had authority. Hetsco contends that when Hayes stated in his email,
“please proceed with the repairs with our approval[,]” Scott, the only Hetsco employee in
communication with Hayes over the Proposal for Services, believed Hayes had authority to
accept the Proposal for Services.
¶22. Scott was deposed by the parties. He stated that in June 2015 he had received emails
regarding the expiration of the MSA with BP and knew that the terms of the MSA were not
10 negotiated with the plant-level employees. The emails he received were from what he
assumed was a contracts group at BP that had the responsibility of negotiating terms and
conditions. Scott stated that neither he nor, to his knowledge, the president of Hetsco could
negotiate legal terms and conditions because Hetsco was owned by Global Power Equipment
Group, the attorneys of which handled the negotiations. Scott knew that BP was a much
bigger company than Hetsco and assumed that Hetsco and BP had a similar hierarchy of
¶23. Scott had been told to use the template Proposal for Services on every repair job
regardless of the existence of an MSA. Scott stated that Hetsco had MSAs with many
different companies. When repair work was needed, the company would initiate the repair
with Hetsco through a purchase order. Scott, in response to the purchase order, would then
send the Proposal for Services to his contact at the plant or location for the purpose of giving
an estimate for the repair. Scott would send the Proposal for Services on every project
regardless of whether an MSA was in effect or if the terms in the Proposal for Services
varied from the terms in an MSA.
¶24. Scott stated that he did not discuss the legal terms with Hayes and only had authority
to change the scope of work and price for each project. Scott stated that he had no
understanding at the time he sent the document whether the legal terms had any significance;
he was just doing what he was told. Scott stated that although he did not know Hayes’s level
of authority, he assumed Hayes had the authority to grant approval to move forward with the
work. Scott stated that he assumed that “for BP to issue a PO, that they were good with
11 either an MSA or the proposal that was sent.” On this project, he assumed that there was
“authority on their end to grant us authorization to work.”
¶25. Sam Willard, the president of Hetsco at the time of the repair, was also deposed. Sam
stated that he did not have authority to negotiate an MSA on behalf of Hetsco and that all
legal terms and conditions had to be approved by Global Power. He stated that he did not
know BP’s process of negotiating or hierarchy of authority but did not expect that plant-level
employees “could agree to certain contractual terms and conditions.” Sam later submitted
an affidavit stating that he wished to clarify that statement was given in the context of
negotiating a long-term MSA.5 He further stated that he thought Scott was reasonable in his
belief that “the BP employee in question had authority to accept Hetsco’s one-time repair
contract on behalf of BP.”
¶26. Hetsco contends that this testimony proves that there was reasonable belief that Hayes
could bind BP to all the terms in the Proposal for Services. Hetsco contends that Rose’s
affidavit did not deny Hayes had authority but merely stated that to his knowledge Hayes did
not have authority. Further, when Hayes said in his email, “please proceed with the repair
with our approval,” that communicated the approval of the company. Hetsco further states
that “Hayes is deceased and there is no evidence disputing Hetsco’s reasonable belief that
Hayes had authority to accept the terms” of the Proposal for Services.
¶27. Enterprise contends that Scott did not identify “a single word or act by BP from which
he could conclude Hayes had authority to do anything more” than approve the scope and
5 Enterprise challenged the affidavit with a Motion to Strike. In ruling on summary judgment, the circuit court stated that all other relief was denied.
12 price of repair. According to Enterprise, any agreement to legal terms must have been
outside the scope of Hayes apparent authority. Enterprise relies on the Court of Appeals’
decision in Diversicare of Meridian, LLC v. Shelton, 334 So. 3d 487 (Miss. Ct. App. 2022).
In Diversicare, the parties disputed the enforceability of an arbitration agreement. Id. at 492.
One of the arguments against enforcement was that Linda Shelton had signed the arbitration
agreement upon entering the Diversicare of Meridian nursing home on behalf of her mother,
Sarah Hamrick, without either actual or apparent authority. Id. at 495.
¶28. Hamrick had verbally informed Diversicare that “Shelton could sign documents for
her[,]” granting her “express authority to act on her behalf to a certain extent.” Id. at 496.
Shelton, however, presented an affidavit stating that her authority from Hamrick was limited
in scope to documents necessary to complete admission to the nursing home, which would
not include the arbitration agreement that specifically stated it was “not a condition of
admission . . . in the center.” Id. at 491 (internal quotation mark omitted). Diversicare had
no legal documentation to prove Shelton was granted any authority beyond the verbal
confirmation by Hamrick. Id. at 491. “There was no proof that Shelton had customarily
signed for her mother in the past. Nor was there any proof that any of the individual
documents were discussed with Hamrick.” Id. at 497.
¶29. The court noted that “[i]n Mississippi, agency and the scope thereof may be proved
through the testimony of the agent alone.” Id. (alteration in original) (internal quotation
marks omitted) (quoting Gross v. GGNSC Southaven, L.L.C., 817 F.3d 169, 179 (5th Cir.
2016)). Relying on Shelton’s uncontradicted affidavit, the court found that Diversicare had
13 failed to produce evidence to prove that Shelton’s authority extended beyond the verbal grant
by Hamrick to sign documents for admission. Id. at 499. Accordingly, the trial court’s
denial of a motion to compel arbitration was affirmed. Id.
¶30. Hetsco does not address Diversicare. This Court, however, finds that Diversicare
provides guidance on evaluating the scope of apparent authority. Enterprise argues that
Hetsco, similar to Diversicare, has offered insufficient proof that Hayes’s authority extended
beyond what a plant-level employee had done before, which was to approve the scope and
cost of the work. Further, Enterprise contends that Hetsco has not pointed to any record
evidence that would support a finding that Hayes had authority to agree to contractual terms,
which Scott knew were handled by a different group of people within BP.
¶31. Hetsco relies on Williams v. Kilgore, 618 So. 2d 51, 56 (Miss. 1992), for the
proposition that an agent may be vested with apparent authority as a matter of law based on
custom and practice. Williams was a medical-malpractice case in which one issue on appeal
was whether the doctor had been properly served. Id. at 53, 56. The Court found that service
of process was accepted by an office manager who had on prior occasions accepted service
of process without objection. Id. at 56. The Court stated, “[w]e find nothing in our case law
which precludes the acceptance of service of process by an agent such as an office manager,
who, by custom and practice, is vested with apparent authority to do so.” Id. Hetsco does
not further develop its reliance on Williams to explain how custom and practice support a
finding of apparent authority in this case.
¶32. Enterprise, however, argues that BP and Hetsco’s prior course of dealings shows a
14 genuine issue of material fact as to apparent authority. Enterprise contends that the email
communications that were produced between Scott, Rose and Hayes prove that the parties
were operating according to their custom. As was their custom, BP created a PO stating that
repairs were needed and Hetsco responded with their standard Proposal for Services
document. Enterprise contends Scott’s deposition proves Scott’s understanding was that
Hayes could authorize the repair but that Scott never said that Hayes had authority to agree
to the legal terms. Because of the “long-standing business practice between Hetsco and BP,”
Enterprise contends that Scott’s belief that “Hayes could approve anything beyond the
estimated cost and scope of repairs would be unreasonable.” Enterprise encourages this
Court to consider the course of dealings between the parties as support in overturning the
grant of summary judgment. See Alexander, 609 So. 2d at 404 (“course of past dealings was
but one factor that could be considered by a jury”).
¶33. Consideration of the prior practice and customs of the parties indicates that it was the
parties’ custom to discuss scope and price of work but not legal terms. Further, Scott’s
testimony was consistent that he thought Hayes had authority to authorize the repair and that
either an MSA, when in effect, or a Proposal for Services was acceptable. Scott did not
testify as to whether he believed Hayes was agreeing to legal terms and conditions on behalf
of BP or merely giving permission to start the repairs. The evidence before this Court does
not include any indication that Hayes had ever before agreed to the legal terms or whether
he had ever been vested with authority to agree to such terms. Hetsco is correct that Rose’s
affidavit does not deny Hayes ever had the authority. Instead, Rose merely states that to his
15 knowledge, no plant-level employee had such authority. The record also does not show
whether anyone at the BP plant knew that the MSA had expired or whether BP intended for
Hayes to give approval to the Proposal for Services.
¶34. Hetsco claims that it would not have proceeded with the repair without the Proposal
for Services. The circuit court based its finding in part on this claim when it stated that
“[o]nly upon receiving this acceptance did Hetsco begin the repairs as outlined in the
proposal.” Enterprise contends that there is no evidence to support this contention and
argues that, instead, “repair work routinely was done for BP under an MSA with its own
terms and conditions.”
¶35. We find the record contradictory on this issue. Hetsco does not cite any specific
record evidence to support its contention that it would not have done the repairs without the
Proposal for Services. The email from Scott to Hayes stating that the repair would be
undertaken once given approval does not indicate that agreement to the terms in the Proposal
for Services was a condition. The email could just as reasonably convey that Scott wanted
approval for the cost and plan for the repairs, which was the substance of the discussions
between the BP and Hetsco employees. Further, Scott’s testimony was that he assumed when
a PO was issued, the company was good with either a Proposal for Services or an MSA.
Further, Enterprise has shown that Hetsco was not immediately aware of any contract for the
repairs. It is contradictory for Hetsco to claim that the terms in the Proposal for Services
were a condition for proceeding with the repairs when it had previously proceeded under an
MSA and, for a time, it was not even aware that there ever was a contract.
16 ¶36. This Court has stated “that the issue of one’s apparent authority to act for another is
a factual one, and when a motion for summary judgment is made, the court does not decide
questions of fact, but merely determines if there are such factual questions to be decided at
trial on the merits.” Alexander, 609 So. 2d at 404 (citing Lowery v. Guar. Bank & Tr. Co.,
592 So. 2d 79, 81 (Miss. 1991)). Taking the evidence in the light most favorable to
Enterprise, a genuine issue of material fact exists as to apparent authority. The circuit court’s
grant of summary judgment is reversed, and the case is remanded to the circuit court for
further proceedings.
¶37. Hetsco also argued in the motion for summary judgment that, whether Hayes had
authority or not, BP ratified the Proposal for Services. “Ratification does not arise by
operation of law; rather, ‘[a] person ratifies an act by (a) manifesting assent that the act shall
affect that person’s legal relations, or (b) conduct that justifies a reasonable assumption that
the person so consents.’” In re Northlake Dev. L.L.C. v. BankPlus, 60 So. 3d 792, 797
(Miss. 2011) (alteration in original) (internal quotation marks omitted) (quoting Restatement
(Third) of Agency § 4.01(2) (2005)). “Ratification is a principal’s after-the-fact, conscious
decision to be bound by an agent’s unauthorized act[.]” Id.
¶38. The circuit court did not rule on this issue because it found that Hayes had apparent
authority to agree to the Proposal for Services. This issue is raised by Hetsco in its brief as
an alternative basis for the grant of summary judgment before this Court. We find genuine
issues of material fact remain as to the question of ratification, and this issue is also
17 remanded.
¶39. Hetsco argues that BP ratified its assent to be bound by the Proposal for Services
when it paid, without objection, under the terms of the Proposal for Services. Enterprise
disputes Hetsco’s argument by presenting emails between Hetsco and BP that show BP and
Hetsco employees discussing difficulties with payment for the repair. Enterprise argues that
the emails further prove that BP did not pay according to the terms of the Proposal for
Services. The Proposal for Services required payment from BP within fifteen days of the
invoice. BP stated in an email that it would pay Hetsco within thirty days of the invoice.
There is no evidence that Hetsco sought to enforce the fifteen-day term.
¶40. Hetsco also argues that Enterprise did not respond to this basis for summary judgment
in the trial court, so it waived the right to argue this issue on appeal. Hetsco cites Holcomb,
Dunbar, Watts, Best, Masters &Golmon, P.A v. 400 S. Lamar Mad Hatter Partners, LLC,
335 So. 3d 568 (Miss. 2022), to support its argument that because Enterprise failed to address
a reason for summary judgment, it cannot challenge the argument on appeal. The case does
not, however, support Hetsco’s argument. Part of the Court’s finding in that case was that
Holcomb Dunbar had waived a ground for partial summary judgment “because it was not
specifically pleaded in its answer.” Id. at 574. The case is different both procedurally and
factually. We find Enterprise has not waived the issue. The evidence was considered by the
circuit court, and this Court is entitled to review it.
¶41. The point is moot, however, as the evidence on this motion for summary judgment is
insufficient to show that BP made an “after-the-fact, conscious decision to be bound by the
18 agent’s unauthorized act[.]” In re Northlake Dev. L.L.C., 60 So. 3d at 797. There is no
evidence that BP knew of the legal terms in the Proposal for Services and took actions that
would justify a reasonable assumption that it agreed to the terms. Id. From the emails, this
Court only knows that BP and Hetsco were discussing payment of $62,460.32 for repairs.
The email chains do not reveal if Hetsco sent the Proposal for Services along with its emails
requesting payment. No other evidence is presented showing that BP’s payment manifested
its assent to be bound to legal provisions. Taking the facts in the light most favorable to
Enterprise, a genuine issue of material fact exists as to whether BP ratified the Proposal for
Services.
III. Whether Enterprise can be bound by the Proposal for Services.
¶42. The circuit court did not explain how finding that BP’s employee Hayes had apparent
authority to bind BP would bind Enterprise to the Proposal for Services. The parties set forth
multiple alternative arguments for and against summary judgment. The Court will briefly
address these issues. We find, however, that only one of the following arguments can be
resolved on summary judgment.
A. Arguments that Enterprise is Bound
¶43. Hetsco argues that because Enterprise co-owned the plant, it and BP were either in a
joint venture or a partnership. Hetsco further argues that Enterprise is thereby bound by the
actions of its joint venturer. Hetsco also contends that Enterprise is bound by the Proposal
for Services as a successor or assignee of BP. Both of these arguments depend on a finding
that BP is bound by the Proposal for Services. The circuit court did not rule on either of
19 these issues. Because this Court has found that genuine issues of material fact remain as to
whether BP was bound by the Proposal for Services, we will not address the merits of this
argument. These issues are preserved on remand for consideration by the circuit court.
B. Equitable Estoppel
¶44. Defensively, Enterprise argues that equitable estoppel prohibits Hetsco from enforcing
the terms of the Proposal for Services. Although it was raised and argued, the circuit court
did not discuss this argument in its final order. Enterprise submits, however, that by ruling
that Enterprise was bound by the Proposal for Services, the issue was inherently rejected.
We agree that the circuit court rejected Enterprise’s equitable estoppel argument.
¶45. “Equitable estoppel has three elements ‘(1) Belief and reliance on some
representation; (2) Change of position, as a result thereof; (3) Detriment or prejudice caused
by the change of position.’” Univ. of Miss. Med. Ctr. v. Aycock, 369 So. 3d 534, 541 (Miss.
2023) (internal quotation marks omitted) (quoting State ex rel. Watson v. R.W. Dev., LLC,
357 So. 3d 1028, 1038 (Miss. 2023)). “Equitable estoppel ‘precludes a party from denying
a material fact which he has previously induced another to rely upon, whereby the second
party changed his position in such a way that he would suffer injury if denial was allowed.’”
Gulf Guar. Life Ins. Co. v. Duett, 671 So. 2d 1305, 1309 (Miss. 1996) (quoting Christian
Methodist Episcopal Church v. S&S Constr. Co., Inc., 615 So. 2d 568, 571-72 (Miss
1993)). “Concerning the application of equitable estoppel, ‘[the] issue becomes a question
for the trier of fact when there is evidence to support a finding that the plaintiff reasonably
relied on the actions of the defendant to his detriment.’” Trosclair v. Miss. Dep’t of Transp.,
20 757 So. 2d 178, 181 (Miss. 2002) (alteration in original) (citing Miss. Dep’t of Pub. Safety
v. Stringer, 748 So. 2d 662, 668 (Miss. 1999) (Banks, J., dissenting)).
¶46. To reiterate, the repair occurred in September of 2015; Enterprise bought the plant in
early 2016. The explosion occurred in June 2016. It is alleged by Enterprise that, in March
of 2017, counsel for Hetsco and counsel for Enterprise were discussing and investigating the
explosion. Enterprise asked Hetsco if there was a contract for the repair and alleges that
Hetsco emphatically said no. Enterprise contends that Hetsco described the repair as “more
like some maintenance guy who does some work at your house.” Hetsco admits there was
a conversation but disagrees with Enterprise’s interpretation. Hetsco argues that it told
Enterprise that its paperwork was disorganized, so it was unsure if there was a contract.
Hetsco states that it advised Enterprise to contact BP to confirm the existence or
nonexistence of a contract.
¶47. The actual conversation is a factual dispute that was not resolved by the circuit court.
Enterprise contends that it relied to its detriment on its version of these statements from
Hetsco’s representative.
¶48. Enterprise argues that “[b]y misrepresenting the existence of a contract until
Enterprise filed its negligence claims in Mississippi, Hetsco effectively denied Enterprise any
forum in which to litigate those claims.” Enterprise argues that, in reliance on Hetsco’s
attorney’s statements that there was no contract, it decided when and where to file the claims
based on its understanding that standard procedure applied. It did not know until November
of 2018 of the Proposal for Services or of the two-year contractual statute of limitations that
21 expired in September of 2017. Enterprise claims that it will likely be unable to litigate these
claims in any forum if the Proposal for Services is enforced.
¶49. Enterprise relies on Trosclair and Aycock to support its argument that genuine issues
of material fact remain as to whether Enterprise relied to its detriment on Hetsco’s
representations. Enterprise requests this Court remand consideration of this issue to the
circuit court.
¶50. In Trosclair, the Mississippi Department of Transportation (MDOT) made
representations that it had not been responsible for road repairs that had allegedly caused
injury to two people. Trosclair, 757 So. 2d at 179. One year and ninety days after the injury,
it was discovered that MDOT had performed the repairs, and suit was filed. Id. MDOT filed
a motion to dismiss arguing there was improper presuit notice under the Mississippi Tort
Claims Act and that the one-year statute of limitations had expired. Id. The injured parties
argued that equitable estoppel should apply because they had relied on MDOT’s prior
representations that a private company had completed the repairs. Id. Although the bulk of
the Court’s ruling focused on substantial compliance with statutory notice requirements, the
Court did reason that “there is a material issue of fact as to whether [the injured parties]
reasonably relied upon the misrepresentations of” the MDOT employee. Id. at 181. The case
was reversed and remanded. Id.
¶51. In Aycock, the Court made a similar ruling on the issue of equitable estoppel. Aycock,
369 So. 3d 541-42. The Aycocks attempted to give notice of their claim to the University
of Mississippi Medical Center (UMMC) by sending a letter to four hospital executives, none
22 of whom were the chief executive officer, who was required by statute to receive presuit
notice. Id. at 536. Eventually, a letter was sent denying the Aycocks’ claims. Id. at 536-37.
The Aycocks filed suit, and UMMC argued for dismissal, claiming that it did not have proper
presuit notice and that the statute of limitations had expired. Id. at 537.
¶52. A portion of the Court’s ruling focused on the Aycocks’ claim that equitable estoppel
barred the hospital’s defenses because “it engaged in a course of conduct that induced
reliance by the Aycocks to their detriment.” Id. at 540. This Court found that a genuine
issue of material fact as to equitable estoppel remained because UMMC presented confusing
information on its organizational charts, had no clearly identified chief executive officer,
responded to the letter acknowledging the “Notice of Claim” letter, sent a formal written
denial of the claims and communicated with counsel that the claims were being evaluated.
Id. at 541.
¶53. Hetsco argues that it merely told Enterprise that it was not aware of a contract.
Hetsco, however, contends that its representations are immaterial because Enterprise failed
to exercise due diligence to confirm with BP that no contract existed. Hetsco relies on
Stephens v. Equitable Life Assurance Society of the United States, 850 So. 2d 78 (Miss.
2003), to support its contention that Enterprise is precluded from relying on the doctrine of
equitable estoppel because it failed to perform due diligence.
¶54. In Stephens, the issue was “a claim of alleged fraud and oral misrepresentations of
certain life insurance policies[.]” Id. at 79. The Court stated that “the plaintiffs claim that
equitable estoppel applies. They argue that issues concerning fraudulent concealment and
23 due diligence in the discovery of the alleged fraud are factual and generally not to be
resolved on a Rule 12(b)(6) motion to dismiss.” Id. at 81. There is no further discussion of
equitable estoppel in the case. There is, however, a discussion of fraudulent concealment,
which requires due diligence in discovery. Id. at 84.
¶55. Enterprise argues that due diligence is not an element of estoppel and that it was not
required to ask BP for a copy of an alleged contract. Hetsco does not rely on any other
caselaw to support its contention that due diligence is required before making a claim of
equitable estoppel. We find no caselaw in which this Court required due diligence as a
prerequisite to a claim of estoppel. Hetsco’s argument is without merit.
¶56. Hetsco also argues this Court should not consider statements by counsel as evidence
for the elements of estoppel. Hetsco relies on Haggerty v. Foster, 838 So. 2d 948, 954
(Miss. 2002). The Court in Haggerty stated that “[t]he statements of counsel are not
evidence, Walker v. State, 671 So. 2d 581, 618 (Miss. 1995), and neither are the instructions
of the court which should only serve to guide the jury as to the applicable law.” Haggerty,
838 So. 2d at 954. Hetsco’s reliance on this statement is misplaced. In Haggerty, the Court
was discussing jury instructions—whether a jury verdict had been based on an erroneous
legal standard. Id. Hetsco does not expound on Haggerty, which is not procedurally or
factually applicable to this issue.
¶57. Generally, “a party is bound by the acts of his attorney.” Hughes v. State, 807 So.
2d 426, 431 (Miss. 2001) (internal quotation marks omitted) (quoting Stringer v. State, 627
So. 2d 326, 330 (Miss. 1993)); see Vaughn v. Rettig, 912 So. 2d 795, 798-99 (Miss. 2005)
24 (quoting Terrain Enters., Inc. v. W. Cas. & Sur. Co., 774 F.2d 1320, 1322 (5th Cir. 1985));
Great Atl. & Pac. Tea Co. v. Majure, 176 Miss. 356, 168 So. 468, 472 (1936). Further, the
Court has on other occasions considered statements of attorneys as evidence. See Lumumba
v. State, 868 So. 2d 1018, 1020 (Miss. 2003) (finding statements of an attorney justified
holding the attorney in contempt of court); Logan v. RedMed, LLC, 377 So. 3d 956, 965
(Miss. 2024) (statements and conduct of attorneys considered in determining whether parties
reached a settlement agreement). In the context of this case, on the issue of estoppel, we find
no basis for the representations of Hetsco’s counsel to Enterprise’s counsel to be excluded
from consideration.
¶58. Hetsco also argues that it was not required to notify Enterprise of the discovery of the
Proposal for Services and that Enterprise knew or should have known of this standard
Proposal for Service contract that it has used in other dealings with Hetsco. These are factual
arguments that were not ruled on by the circuit court. They are evidence, however, that
genuine issues of material fact remain on the issue of estoppel.
¶59. Equitable estoppel “becomes a question for the trier of fact when there is evidence to
support a finding that the plaintiff reasonably relied on the actions of the defendant to his
detriment.” Trosclair, 757 So. 2d at 181 (internal quotation mark omitted) (quoting Stringer,
748 So. 2d at 668). Factual discrepancies remain in this case. Further, there is evidence that
Enterprise reasonably relied, to its detriment, on the alleged no-contract representation of
Hetsco. We remand the issue for further proceedings.
C. Prohibited Term of the Proposal for Services
25 ¶60. Regardless of the ultimate determination as to whether Enterprise is bound by the
Proposal for Services and the effects of said determination, we are compelled to note one
term of the Proposal for Services that is clearly on its face unenforceable under Mississippi
law. The relevant provision states: “6.5.4 Any lawsuit filed by Owner must be filed within
two (2) years from the date that Hetsco provides written notice of completion of work.” This
contract term is not enforceable under Mississippi law. Miss. Code Ann. § 15-1-5 (Rev.
2019); Pitts v. Watkins, 905 So. 2d 553, 558 (Miss. 2005). Enterprise submits that the
contractually shortened period “contravenes clear Mississippi public policy and would
deprive a Mississippi court of jurisdiction over a matter of which Mississippi has a legitimate
interest including the application of its public policy and protecting property in the state.”
Hetsco argues that under the choice of law provision in the Proposal for Services, Indiana
law would control, and Indiana courts would apply the contractually shortened two-year
limitation period.
¶61. Under Mississippi caselaw, our Courts will employ Mississippi procedural law
regardless of the substantive law that applies. Zurich Am. Ins. Co. v. Goodwin, 920 So. 2d
427, 433 (Miss. 2006) (citing Ford v. State Farm Ins. Co., 625 So. 2d 792, 793 (Miss.
1993)). This Court has definitively stated that statutes of limitation are procedural and has
refused to enforce contractually shortened limitation periods. Goodwin, 920 So. 2d at 433;
Pitts, 905 So. 2d at 558; Covenant Health & Rehab. of Picayune, LP v. Est. of Moulds ex
rel. Braddock, 14 So. 3d 695, 702-703 (Miss. 2009). The contractually shortened statute of
limitations provision is not enforceable.
26 D. Forum-Selection Clause
¶62. Both parties make significant arguments regarding the enforceability of the forum-
selection clause separate and apart from the initial determination as to whether Enterprise is
bound by the Proposal for Services. The applicability of the forum-selection clause,
however, is not ripe for determination until it is determined whether the parties are bound by
the alleged contract containing the forum-selection clause. Therefore, we decline to address
these arguments at this time. We note that the arguments are preserved for review by the
circuit court on remand. CONCLUSION
¶63. Summary judgment in this case was premature. This Court finds that genuine issues
of material fact remain. The decision of the circuit court is reversed on all issues and
remanded for further proceedings.
¶64. REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR.