Sharkey v. Barber

188 So. 3d 1245, 2016 Miss. App. LEXIS 73, 2016 WL 612096

• Court: Court of Appeals of Mississippi
• Decided: February 16, 2016
• Docket: No. 2015-CA-00518-COA
• Status: Published

Opinion

ISHEE, J.,

for the Court:

¶ 1. Under section 15-l-49(2)’s discovery rule, in actions “involvpng] latent injury or disease, the cause of action does not accrue until the plaintiff `has discovered, or by reasonable diligence should have discovered, the injury."¹ But this provision only applies to "actions for which no other period of limitation is prescribed[.]"² Here, the three causes of action Chris Starkey asserted against Frank Barber were intentional torts, subject to section 15-1--35's prescribed one-year limitation period.³ So seôtion 15.-1-49(2)'s discovery rule did not apply.⁴ Instead, the one-year limitation period began the day the underlying battery occurred, and it ended months before Chris filed suit.

¶ 2, Because Chris's c1aim~ against Frank were untimely, we affirm the circuit court's judgment dismissing. these claims.

Background Facts and Procedural History

¶ 3. On July 28, 2014, Ch~is, as administrator "of his brother Cedric Shar~ key's estate, filed suit against Frank, Frank's brother Steven Barber, and Barry Ware. Chris asserf~ed three causes of action-(1) ~vrongfu1 death, (2) ~intentional infliction of emotional distress, and (3) civil conspiracy-all ~rising from his brother's murder on January 7, 2012.

¶ 4. According to Chris's complaint, Frank, Steven, and Barry had confronted Cedric about stealing a piece of scrap metal. They demanded Cedric ride with them to the police station. Instead, Cedric sped off in his car, and the three men pursued him in a truck. A couple of miles into the chase, Cedric's car veered off the road and hit a tree. Cedric ,abandoned his vehicle and ran into the woods. The three men ran after him. Barry started shooting at Cedric, hitting him multiple times. Cedric died from the gunshots.

¶ 5. According to the record, Frank, Steven, and Barry were all arrested the same day Cedric died. A month later, Frank and Barry were indicted for murder. Eventually, in September 2014, Frank pled guilty to accessory after the fact to murder.

¶ 6. In December 2014, Frank filed a motion to dismiss for failure to state a viable claim. See M.R.C.P. 12(b)(6). Frank asserted all three claims fell under the one-year statute of limitations for intentional torts. See Miss.Code Ann. § 15-1-35 (Rev.2012). So Chris's suit-filed eighteen months after Cedric was killed-was time-bari~d.

¶ 7. Chris responded with two arguments: (1) section 15-1-49(2) tolled the statute of limitations because Chris did not discover Frank's role in Cedric's death at the time he was killed; and (2) section 15-1-67 also tolled the statute of limitations because Fi'~nk had "concealed hi~ true role and thtis [Chris's] cause of action until he pled guilty ... on September ~4, 2014"-two months after Chris sued Frank. See Miss.Code Ann. § 15-1-49(2) (di~covery rule); Miss.Code Ann. § 15-1-67 (Rev.2012) (fraudulent concealment).

¶ 8. The circuit court granted Frank's motion. The court found all three claims were subject to the one-year statute of limitations for intentional torts. And Frank's role in Cedric's death was not hidden or ündiscbverable because Frank was immediately arrested for murder, so this one-year period was not tolled. Instead, it began January 7, 2012, the day Cedric was murdered, and ran months before Chris filed suit.

¶ 9. The circuit court dismissed all three claims against Barber. See, e.g., Burch v. Ill. Cent. R.R., 136 So.3d 1063, 1068 (¶ 11) (Miss.2014) (affirming the trial court’s dismissal of a suit because the statute of limitations had expired by the time the complaint was filed). The court then certified its judgment as final under Mississippi Rule of Civil Procedure 54(b).⁵ Chris timely appealed.

¶ 10. We review the order dismissing Chris’s claims against Frank de novo, taking the facts alleged in the complaint as true. See Scaggs v. GPCH-GP, Inc., 931 So.2d 1274 (¶ 6) (Miss.2006); see also Burch, 136 So.3d at 1065 (¶ 3) (“The de novo standard also applies to the application of a statute of limitations, which is a question of law.”).

Discussion

¶ 11. On appeal, Chris concedes all three causes of action are subject to section 15-1-35’s one-year statute ■ of limitations.⁶ But he asserts the one-year period was tolled by the discovery rule and by Frank’s fraudulent concealment.

I. “Discovery Rule”

¶ 12. “The discovery rule applies only ‘in actions for which no other period of limitation is prescribed.! ” Raddin, 175 So.3d at 1249 (¶ 14) (emphasis added) (quoting Miss.Code Ann. § 15-1-49(2)). But here, Chris’s three causes of action had prescribed limitations periods. So the discovery rule does not apply.

¶ 13. Chris’s three theories of recovery are wrongful death, civil conspiracy, and, intentional infliction of emotional distress. “[A] wrongful death -action, since it is predicated on an underlying tort, is limited by the statute of limitation applicable to the tort resulting, in the wrongful death.” Thiroux ex rel. Cruz v. Austin ex rel. Arceneaux, 749 So.2d 1040, 1042 (¶ 4) (Miss.1999). Chris alleged Cedric died due .to the intentional torts of assault and battery, which are subject to section 15-1-35’s one-year period. See id. (applying section 15-1-35 to a wrongful-death claim based on murder). Likewise, the claim of civil conspiracy does not stand alone, but is dependent.,on conspiring to commit a particular wrong — in this case, the intentional tort of assault. See Aiken v. Rimkus Consulting Grp., Inc., 333 F. App’x 806, 812 (5th Cir.2009) (per curiam) (citing Wells v. Shelter Gen. Ins., 217 F.Supp.2d 744, 755 (S.D.Miss.2002)). So Chris’s civil-conspiracy claim is also limited by section 15-1-35. See McGuffie v. Herrington, 966 So.2d 1274, 1278 (¶ 8) (Miss.Ct.App.2007) (citing Gasparrini v. Bredemeier, 802 So.2d 1062, 1065-66 (¶¶ 7-10) (Miss.Ct.App.2001)) (applying one-year statute of limitations to civil-conspiracy claim),. Finally, the claim of intentional infliction of emotional distress too falls under section 16-1-35. Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 423 (¶ 26) (Miss.2010).

¶ 14. Recently, in Raddin, the Mississippi Supreme Court expressly “decline[d] to extend the discovery rule to the intentional torts alleged' in [that] action.”⁷ Raddin, 175 So.3d at 1250 (¶ 16). Among the intentional torts asserted in that case were assault, battery, and intentional infliction of emotional distress. Id. at (¶ 18), 1252 (¶ 26). Because all three of Chris’s claims are intentional torts, section 15-1-49(2) does not apply. Id. at 1249 (¶ 14). So Chris cannot appeal to the discovery rule to save his untimely claim.

II. Fraudulent Concealment

¶ 15. Nor does section 15-1-67’s tolling provision provide Chris any relief. Unlike section 15-1-49(2), section 15-1-67 may apply to intentional-tort claims. See Goleman v. Orgler, 771 So.2d 374, 377 (¶ 9) (Miss.Ct.App.2000). But after de novo review, we agree section 15-1-67 has no application here because the causes of action were not concealed from Chris.

¶ 16. “Fraudulent concealment' toll’s the limitations period until the claim is discovered or should have been discovered.” Doe v. Roman Catholic Diocese of Jackson, 947 So.2d 983, 986 (¶ 9) (Miss.Ct.App.2006) (citing Miss.Code Ann. § 15-1-67).⁸ To benefit from section 15-1-67, Chris would have to show: (1) Frank “engaged in some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of a claim, and (2) though [Chris] acted with due diligence in attempting to discover the claim, [he was] unable to do so.” Id. at 987 (¶ 9) (citing Robinson v. Cobb, 763 So.2d 883, 887 (¶ 19) (Miss.2000)).

¶ 17. Chris suggests Frank “concealed” the claims by denying criminal liability for Cedric’s death. But we fail to see how Frank’s attempt to beat the murder charge prevented Chris froto discovering potential civil claims. According to Chris’s own argument, Frank never denied being part of the group that chased Cedric. Nor did he deny being there when Cedric was shot. Rather, Frank simply disagreed that his actions rose to the level of murder. So this is not a case where Chris could not have known of Frank’s involvement until Frank’s codefendant, Barry, confessed.⁹ Frank was arrested for taking part in Cedric’s death the very day he died. And he and Barry were indicted for murder a month later, in February 2012. So at the very latest, Chris’s claims against Frank were discoverable by this time.

¶ 18. Because Chris did not sue Frank until July 2013 — five months after the statute of . limitations expired — his claims against Frank were not timely. We affirm the circuit court’s judgment dismissing these claims.

¶ 19. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, PJ., BARNES, CARLTON, JAMES AND WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR AND GREENLEE, JJ., NOT PARTICIPATING.

1 . Miss.Code Ann. § 15-1-49(2) (Rev.2012).

2 . Id.

3 , See Miss.Code Ann, .~ 15-4-35 (Rev.2012).

4 . Raddin v. Manchester Educ. Found., Inc., 175 So.3d 1243, 1249 (¶ 15) (Miss.2015).

5 . Under Rule 54(b):

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entiy of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.

(Emphasis added). Here, the order dismissing Chris's claims against Frank 'did not address the other two defendants, Steven and Bárry. So this order would have been interlocutory had the circuit court not certified the judgment in favor, of Frank as final under Rule 54(b)-.

6 . In his initial brief, Chris argued his civil-conspiracy claim was subject to a three-year statute of limitations. But in his reply brief, he conceded the- limitation period for civil conspiracy is subject to the period associated with the underlying intentional tort,

7 . As acknowledged in Raddin, the supreme court "has applied the discovery rule only to the intentional tort of defamation.” Raddin, 175 So.3d at 1250 (¶ 16) (citing Staheli v. Smith, 548 So.2d 1299, 1302 (Miss.1989)).

8 . Under section 15-1-67:

If a person liable to any personal, action shall fraudulently conceal the cause of action from the knowledge of die person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

9 . On appeal, Chris argues he did not learn of 'Frank's true role in Cedric’s death until Barry confessed. But Barry’s confession is not part of the record, so we have no way to verify Chris's assertion that he filed’ suit within a . year of this confession. Moreover, Barry's confession is not the first time Chris could have discovered Frank was part of the group that chased Cedric to his death.