Filed: Jun. 13, 2012
Latest Update: Mar. 26, 2017
Summary: REVISED JUNE 13, 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 29, 2012 No. 10-61006 Lyle W. Cayce consolidated with Clerk No. 11-60122 ILLINOIS CENTRAL RAILROAD COMPANY, Plaintiff - Appellee v. WILLIAM GUY; THOMAS W. BROCK, Defendants - Appellants Appeals from the United States District Court for the Southern District of Mississippi Before REAVLEY, ELROD, and HAYNES, Circuit Judges. REAVLEY, Circuit Judge: A jury returned
Summary: REVISED JUNE 13, 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 29, 2012 No. 10-61006 Lyle W. Cayce consolidated with Clerk No. 11-60122 ILLINOIS CENTRAL RAILROAD COMPANY, Plaintiff - Appellee v. WILLIAM GUY; THOMAS W. BROCK, Defendants - Appellants Appeals from the United States District Court for the Southern District of Mississippi Before REAVLEY, ELROD, and HAYNES, Circuit Judges. REAVLEY, Circuit Judge: A jury returned ..
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REVISED JUNE 13, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2012
No. 10-61006
Lyle W. Cayce
consolidated with Clerk
No. 11-60122
ILLINOIS CENTRAL RAILROAD COMPANY,
Plaintiff - Appellee
v.
WILLIAM GUY; THOMAS W. BROCK,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
REAVLEY, Circuit Judge:
A jury returned a verdict in favor of Plaintiff-Appellee Illinois Central
Railroad on its claims of fraud and breach of the duty of good faith and fair
dealing against Appellant-Defendants William Guy and Thomas W. Brock. Guy
and Brock’s misrepresentations induced Illinois Central to settle the asbestos
exposure claims of two former Illinois Central employees whom Guy and Brock
represented in a state-court lawsuit. On appeal, Guy and Brock contend that the
district court lacked subject matter jurisdiction over the instant case under the
Rooker-Feldman doctrine, and alternatively that the case called for Burford
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No. 11-60122
abstention under Burford v. Sun Oil Co.1 They also contend that the trial
evidence established their statute-of-limitations and waiver defenses as a matter
of law.
Guy and Brock misconceive the legal authorities relevant to their
jurisdiction, abstention, and waiver arguments. Regarding the statute of
limitations issue, we conclude that a reasonable jury could have found for Illinois
Central. We therefore AFFIRM the district court’s judgment.
I. BACKGROUND
Our explanation of the case’s background is based on the undisputed facts
and the evidence presented at trial. Our treatment of disputed factual matters
is informed by the standard of review applicable to a post-trial challenge to the
sufficiency of the evidence, which requires us to view the trial evidence in the
light most favorable to the jury’s verdict. See Staub v. Proctor Hosp.2 Guy and
Brock represented Warren R. Turner, Jr., Willie R. Harried, and roughly 170
other plaintiffs alleging asbestos exposure during their employment with Illinois
Central in a suit filed on August 1, 2001, in the Circuit Court of Jefferson
County, Mississippi, styled Elbert Eakins, et al. v. Illinois Central Railroad Co.,
No. 2001-65 (Jefferson Cnty. Cir. Ct. Miss.). The Eakins case proceeded in
parallel with Robert Allen v. Illinois Central Railroad Company, No. 2000-100
(Jefferson Cnty. Cir. Ct. Miss.), another multi-plaintiff case in which Guy and
Brock represented numerous individuals suing Illinois Central for asbestos
exposure. The cases proceeded before the same judge, and in most respects were
treated as though they had been consolidated.
1
319 U.S. 315,
635 S. Ct. 1098 (1943).
2
____ U.S. _____, 131 S. Ct. 1186, 1189 (2011). A separate treatment of the facts as
they relate to Guy and Brock’s Rooker-Feldman and abstention arguments is not necessary,
as none of the facts material to those issues are in dispute.
2
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Turner was one of a small number of the Eakins plaintiffs selected for
early discovery and trial. The Eakins trial court allowed discovery regarding
the plaintiffs in this “trial group,” and their claims were scheduled for trial on
October 15, 2002. That trial did not happen because Guy and Brock and Illinois
Central reached an agreement establishing a process for expedited evaluation
and settlement of all of the Eakins plaintiffs’ claims. The August 6, 2002
agreement preserved Illinois Central’s right to refuse settlement if the plaintiff
had not actually worked for Illinois Central, had not been diagnosed with an
asbestos-related illness, or had not sued within the three-year statute of
limitations provided by the Federal Employer Liability Act (“FELA”).3 The
agreement provided for limited discovery on those matters regarding the 160-odd
Eakins plaintiffs not in the trial group. For them, the agreement called for Guy
and Brock to provide each plaintiff’s sworn responses to a “pulmonary
questionnaire.” The questionnaire asked for the plaintiff’s employment history,
any other known history of asbestos exposure or asbestos-related medical
history, and any involvement in prior asbestos litigation. After receiving a
plaintiff’s completed questionnaire, Illinois Central was required to review the
claim and either assert one of the preserved grounds for refusing settlement or
make a firm settlement offer. The agreement required that in every three month
period Illinois Central would make settlement decisions regarding $6 million
worth of claims for which Guy and Brock had submitted completed
questionnaires. The agreement required both Guy and Brock and the Eakins
plaintiffs themselves to act in good faith in carrying out the settlement process.
The settlement procedures agreement used in Eakins was similar to one through
3
45 U.S.C. §§ 51-60.
3
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which Illinois Central had settled with many of Guy and Brock’s clients in the
Allen litigation.
Over five years before Eakins was filed, Harried and Turner were
plaintiffs in a case brought in Jefferson County against an asbestos
manufacturer, David Cosey, et al. v. E.D. Bullard Co. et al., No. 95-0069
(Jefferson Cnty. Cir. Ct. Miss.). Turner’s and Harried’s counsel in that case was
Attorney Robert Pritchard. Turner and Harried were not familiar with the
details of Cosey or even the case’s formal name. But each recollected that he had
been diagnosed with an asbestos-related illness after consulting with Pritchard
some time around 1995, and that Pritchard had filed an asbestos claim on his
behalf. Both Turner and Harried shared that information with Guy and Brock
before the Eakins suit was filed. The diagnoses used in Cosey establish that by
2001 Turner’s and Harried’s claims against Illinois Central were time barred
under FELA’s three-year statute of limitations,4 and Illinois Central would not
have settled their claims had it been aware that they were plaintiffs in Cosey.
But Guy and Brock withheld that fact from Illinois Central during the
settlement process. They omitted the Cosey information from Turner’s
interrogatory responses concerning his medical and litigation history, which Guy
and Brock provided to Illinois Central on January 25, 2002. They also omitted
Cosey from Harried’s sworn responses to the pulmonary questionnaire,
submitted on May 19, 2003. As a result, Illinois Central settled Turner’s and
Harried’s claims. Turner was paid $120,000 on December 23, 2002. Harried
was paid $90,000 on November 26, 2003. The Eakins trial court dismissed
Turner’s and Harried’s claims with prejudice.
4
See 45 U.S.C. § 56; Urie v. Thompson, 337 U.S. 163, 170,
69 S. Ct. 1018, 1024–25
(1949).
4
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Another Eakins plaintiff who had been in Cosey was Fred Tyler. Tyler was
initially in the Eakins trial group, and Guy and Brock provided interrogatory
responses on his behalf on January 25, 2002. As with Turner, they omitted
Tyler’s participation in Cosey. Tyler was dropped from the trial group before the
August 6, 2002 settlement procedures agreement, so his claim was subject to the
pulmonary questionnaire procedure for non-trial group plaintiffs. Guy and
Brock submitted Tyler’s sworn responses to the pulmonary questionnaire on
July 28, 2003, again omitting Cosey.
At some point in late 2003 or January 2004, Guy and Brock became
unsatisfied with the pace at which Illinois Central was processing unsettled
claims. They moved the Eakins trial court to enforce Illinois Central’s obligation
to process $6 million in claims per quarter. But before the Eakins trial court
heard that motion, Illinois Central discovered that Tyler had been a plaintiff in
Cosey. Illinois Central’s lead counsel in Eakins was Attorney Thomas Peters.
Illinois Central had not offered Tyler a settlement, but the omission of Cosey
from Tyler’s interrogatory responses and pulmonary questionnaire caused Peters
to lose confidence that Guy and Brock were taking adequate steps to ensure that
the information they collected from their clients was accurate. On January 21,
2004, Peters sent Guy and Brock a letter setting forth the omissions from Tyler’s
interrogatories and pulmonary questionnaire, and asking Guy and Brock to
explain. Peters’s letter also stated that the omissions had prompted Illinois
Central to undertake further investigation of the bulk of the remaining unsettled
Eakins claims. Peters did not accuse Guy and Brock of fraud. He believed Tyler
was responsible for the misleading omissions, stating in his letter, “The
explanation for submissions made by Mr. Tyler point convincingly towards
fraud, but we await any explanations Mr. Tyler may have regarding these
disconcerting facts.”
5
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On February 13, 2004 Illinois Central learned of Turner’s and Harried’s
participation in the Cosey case from a report by an outside investigator. But
Illinois Central did not raise the issue with Guy and Brock at that or any other
time during the pendency of the Eakins litigation. Subsequent proceedings in
Eakins remained focused on the Tyler omissions, and subsequently on
discrepancies in affidavits that Guy and Brock later provided to Illinois Central
concerning the litigation history of other unsettled Eakins plaintiffs. Illinois
Central refused to consider many of the unsettled claims until it had a
satisfactory explanation of the Tyler omissions, and it sought dismissal of some
of the other unsettled plaintiffs’ claims. That dismissal motion and Guy and
Brock’s motion to compel Illinois Central to more promptly consider unsettled
claims were set for a hearing on March 29, 2004. But on the day of the hearing
they reached an agreement, memorialized in a handwritten document, that
Illinois Central would continue processing unsettled claims if Guy and Brock
would provide (1) a letter from Tyler explaining the omissions in his responses;
and (2) a letter from Guy and Brock “regarding the procedures they have used
to ensure accurate information on pulmonary questionnaires and expert medical
info [sic] and what further procedures are anticipated.”
Guy and Brock never provided the promised explanation of their
procedures, though Peters asked them to do so “many times.” On April 22, 2004,
Guy and Brock wrote a letter to Illinois Central stating “[i]t should be quite
obvious that we have done a good job with the questionnaires in that several
hundred have been submitted and there have been very few problems.”
Regarding Tyler’s questionnaire, the letter states “[W]e have spoken to Mr.
Tyler. It is apparent that when Mr. Tyler was questioned about prior litigation
he understood that he was being asked about a prior case against the railroad.”
Guy and Brock also promised that “[t]o make sure that this situation does not
6
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occur again, we will be supplying affidavits from all remaining unpaid Allen and
Eakins plaintiffs regarding all prior asbestos litigation. If a plaintiff has been
involved in prior litigation, we will provide you with any document that we can
obtain for your review.” Peters did not find the explanation of the omissions in
Tyler’s questionnaire credible, but his suspicion continued to focus of Tyler, not
Guy and Brock.
On April 28, 2004, Guy and Brock supplied Illinois Central’s counsel with
a letter purportedly composed by Tyler. The letter stated that when Tyler first
met with Guy and Brock to be tested for asbestosis in relation to a possible claim
against Illinois Central, he did not know that the asbestos claim he asserted in
Cosey “had anything to do with a claim against the railroad.” The letter also
stated that when Tyler “was asked about whether [he] had made a prior claim,
[he] understood that [he] was being asked if [he] had made a prior asbestos claim
against Illinois Central, which [he] had not.” Again, Peters did not credit this
explanation, and he continued to suspect Tyler.
In fact, Guy and Brock had never asked Tyler whether he was involved in
a previous asbestos suit or whether he had been previously diagnosed with an
asbestos-related condition. Tyler recognized his signature on the April 28, 2004
letter as his, but he testified that its contents were false and he did not write it.
He recalled signing documents when asked to do so by Guy and Brock. Beyond
that, he had no part in composing the letter or preparing his responses to the
interrogatories and the pulmonary questionnaire.
The Eakins trial court held hearings in June, August, and October 2004,
and one in January 2005. Prior to the June hearing, Illinois Central again
sought relief with respect to the Tyler omissions. Guy and Brock took the
position that the omissions in Tyler’s interrogatory and questionnaire responses
were mistakes, and on the day of the June hearing they voluntarily moved to
7
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dismiss Tyler’s claim. The Eakins court granted their motion. But at the
hearing Peters expressed concern that “there’s more issues with Mr. Tyler than
just dismissal because I think we’ve got past problems.” Peters also said that
Illinois Central was “worried about systemic problems” with the pulmonary
questionnaires. Peters testified in this case that his comments at the June
hearing were about the fact that Guy and Brock had not provided the
explanation of their procedures they promised in the March 29, 2004
handwritten agreement. When the Eakins trial court asked Peters whether
there was “evidence that this happened with anybody [other than Tyler],” Peters
responded “I think there is good evidence that it happened with somebody in the
past, your Honor, but we don’t know.” The Eakins court asked Peters “was this
before you settled the case that you knew this or after it or what?” Peters
responded, “No, I think we found out about what happened with Mr. Tyler–I
think we learned there might be–there might be another individual in the Cosey
case.” The Eakins trial court asked how long Peters would need “to develop
this,” and he responded that “it would not be more than a week.” In the instant
case, Peters testified that he could not recall whom he had in mind when he
referred to the possibility of “another individual in the Cosey case.” Illinois
Central did not subsequently bring evidence to the Eakins court of Harried’s and
Turner’s involvement in Cosey or their misleading submissions.
Nothing in the instant case’s trial record indicates that Illinois Central
confronted Guy and Brock with the falsehoods in Turner’s and Harried’s
submissions at any time during the pendency of the Eakins case. Nor is there
evidence in the trial record that Illinois Central raised the issue with the Eakins
trial court, beyond Peters’s vague reference to “another individual in the Cosey
case” at the June 2004 hearing. When Brock was asked at trial in this case
8
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No. 11-60122
whether he and Guy made “repeated representations to Illinois Central and the
Eakins trial court that y’all didn’t have anything improper to do with Mr. Tyler’s
claim,” Brock answered that “we may very well have . . . .” At no point in the
Eakins litigation did Peters suspect that Guy and Brock were responsible for the
Turner and Harried omissions. He believed that Turner and Harried had been
dishonest when supplying information to Guy and Brock.
Charles Garrett, an Illinois Central “risk manager,” was responsible for
assisting Peters in Eakins. Neither Peters or Garrett suspected that Guy and
Brock might be responsible for the omissions until Turner and Harried were
deposed in this case on January 10, 2008, and May 15, 2007, respectively.
Peters testified that he did not contact Guy and Brock about the Turner and
Harried omissions because he did not think they would cooperate: “They weren’t
even telling me what was going on with Tyler. Why would they give me money
back in a case that’s over[?]” Also, Peters and Illinois Central’s other counsel
regarded Jefferson County as a jurisdiction that was “not only dangerous but
also unfair.” So at some point in the spring or summer of 2004 Illinois Central
decided it would file a separate action against Turner and Harried after the
Eakins case was complete.
The Eakins trial court denied Illinois Central’s request to enforce Guy and
Brock’s promise to provide a description of their procedures. But the court
granted Illinois Central’s request to depose Tyler to learn more about what had
happened with his interrogatory and questionnaire responses. The deposition
was held on August 27, 2004, but Guy and Brock terminated the deposition
shortly after it began. After they stopped Illinois Central’s counsel’s
examination of Tyler, Guy said “I feel like we’ve been in ultimate good faith in
everything we’ve done, and out of hundreds of these things this is the only one
. . . problem we’ve come up with.” Throughout the June, August, and October
9
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No. 11-60122
2004 hearings Guy and Brock made statements to the effect that they had done
their best to ensure that their clients provided honest answers to the pulmonary
questionnaires.
As they had promised in their April 22, 2004 letter, Guy and Brock
supplied affidavits regarding other asbestos litigation from the remaining
unsettled Eakins and Allen plaintiffs. Although Guy and Brock had promised
affidavits addressing only prior litigation, the affidavits they provided purported
to list all other asbestos litigation in which the plaintiff was or had ever been
involved. This made several of the affidavits false, because they did not list
cases filed after Eakins or Allen. The post-Eakins cases omitted from some of
the Eakins plaintiffs’ affidavits included cases in which Guy and Brock were the
plaintiffs’ counsel.
Illinois Central discovered the information omitted from the affidavits and
again sought relief from its obligation to continue settling claims under the
procedures agreement. The Eakins trial court heard arguments about the
affidavits at the October 2004 hearing. The court denied Illinois Central’s
requested relief and granted a renewed motion from Guy and Brock to enforce
the agreement. The trial court refused to rehear Illinois Central’s motion after
a hearing in January 2005 and entered judgments to enforce the agreements in
Eakins and the Allen litigation. Illinois Central filed appeals in both cases,
which the Mississippi Supreme Court ultimately disposed of in Illinois Central
Railroad v. Acuff, 950 So. 2d 947 (Miss. 2006) (disposing of Eakins appeal), and
Illinois Central Railroad v. McDaniel,
951 So. 2d 523 (Miss. 2006) (disposing of
Allen appeal). The Mississippi Supreme Court agreed with the trial court’s
finding that the omissions from the affidavits were inadvertent and immaterial,
and that the trial court did not err in refusing to dismiss the unsettled claims
10
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No. 11-60122
and refusing to relieve Illinois Central from its obligations under the settlement
procedures agreements.5
Illinois Central sued Harried in the district court on November 22, 2006,
and Turner on January 31, 2007. At his May 15, 2007 deposition Harried
revealed that he had informed Guy and Brock about his prior lawsuit with
Attorney Pritchard. After some months of delay during which Illinois Central
sought to discover documents referenced at the deposition, Illinois Central filed
an opposed motion on October 29, 2007, seeking leave to join Guy and Brock as
defendants in the Harried suit. That motion was granted on January 10, 2008,
and on January 17, 2008, Illinois Central filed the amended complaint joining
Guy and Brock to the suit. January 10, 2008, was also the day when Illinois
Central deposed Turner in its suit against him. Turner’s testimony also
indicated that Guy and Brock knew of his involvement in Cosey. Illinois Central
then sought leave to join Guy and Brock to Turner’s case on January 31, 2008.
The district court granted leave, and Illinois Central filed its amended pleading
on February 4, 2008.
The actions were consolidated for trial on Illinois Central’s claims for fraud
and breach of the duty of good faith and fair dealing claims against all four
defendants. Guy and Brock pleaded defenses of statute of limitations and
waiver. Illinois Central sought to prove fraudulent concealment, alleging that
Guy and Brock’s representations and conduct during the Eakins litigation
prevented discovery of their role in the omissions from Turner’s interrogatory
responses and Harried’s pulmonary questionnaire. The jury found against
Illinois Central on its claims against Turner and Harried, but it returned a
general verdict awarding Illinois Central $210,000 in compensatory damages for
5
Acuff, 950 So.2d at 955-56; McDaniel, 951 So.2d at 528-29.
11
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its fraud and bad faith claims against Guy and Brock. After a second phase of
deliberation, the jury awarded Illinois Central an additional $210,000 in
punitive damages. Guy and Brock moved for judgment as a matter of law on
various issues, including their statute-of-limitations and waiver defenses. Their
post-trial motion also asserted that the district court lacked subject-matter
jurisdiction under the Rooker-Feldman doctrine. The district court denied their
motion and entered judgment reflecting the jury verdict. Guy and Brock timely
appealed.
II. Jurisdiction and Abstention
A. Rooker-Feldman
We review challenges to the district court’s jurisdiction de novo.
SmallBizPros, Inc. v. MacDonald.6 Guy and Brock contend that the Rooker-
Feldman doctrine precludes jurisdiction. That doctrine bars lower federal courts
from “exercising appellate jurisdiction over final state-court judgments.” Lance
v. Dennis.7 It applies only in circumstances closely akin to those addressed in
the Rooker and Feldman decisions,8 in which a party suffered an adverse final
judgment rendered by a state’s court of last resort, and then initiated
proceedings in a lower federal court seeking review and reversal of the state-
court judgment. District of Columbia Court of Appeals v. Feldman9; Rooker v.
Fidelity Trust Co.10 Accordingly, the doctrine usually applies only when a
6
618 F.3d 458, 461 (5th Cir. 2010).
7
546 U.S. 459, 463,
126 S. Ct. 1198, 1201 (2006).
8
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284,
125 S. Ct. 1517,
1521 (2005).
9
460 U.S. 462, 466-68, 470-73,
103 S. Ct. 1303, 1306-10 (1983).
10
263 U.S. 413, 414-15,
44 S. Ct. 149, 149-50 (1923).
12
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plaintiff explicitly attacks the validity of a state court’s judgment, Weaver v.
Texas Capital Bank N.A.,11 though it can also apply if the plaintiff’s federal
claims are so inextricably intertwined with a state judgment that the federal
court “is in essence being called upon to review the state court decision.”
Feldman.12
The Rooker-Feldman doctrine does not apply to this case because
adjudicating Illinois Central’s claims did not require the district court to review
any final judgment rendered by a state court. Guy and Brock contend that
litigating Illinois Central’s fraudulent concealment theory amounted to review
of the Mississippi Supreme Court’s judgments in Acuff and McDaniel.13 We
disagree.
None of the parties to this case except for Illinois Central were parties to
the Acuff and McDaniel appeals, and Illinois Central did not request or obtain
any relief inconsistent with the judgments the Mississippi Supreme Court
affirmed. We recognize that the Tyler omissions and the subsequent
irregularities in Guy and Brock’s efforts to reassure Illinois Central regarding
their procedures for getting information from their clients were material to some
of the legal issues Acuff and McDaniel addressed.14 In particular, the
Mississippi Supreme Court was called upon to decide whether the trial court
should have given Illinois Central relief from its obligations to the remaining
11
660 F.3d 900, 904 (5th Cir. 2011).
12
460 U.S. at 483 n.16; 103 S. Ct. at 1316 n.16; Richard v. Hoechst Celanese Chem.
Grp., Inc., 355 F.3d 345, 350-51 (5th Cir. 2003).
13
Guy and Brock filed a motion that we take judicial notice of various papers filed in
the Acuff and McDaniel appeals for purposes of deciding the jurisdictional issue. Nothing
contained in those papers changes our analysis of Guy and Brock’s Rooker-Feldman argument.
The motion is DENIED as moot.
14
Acuff, 950 So.2d at 955-56; McDaniel, 951 So.3d at 528-29.
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unsettled Eakins and Allen plaintiffs under the settlement procedures
agreements.15 But litigating Illinois Central’s instant claims did not require
revisiting that issue or changing the result that the Mississippi Supreme Court
reached. Illinois Central did not seek to rescind the settlement procedures
agreement or recover money from the plaintiffs whose right to a settlement was
at issue in Acuff and McDaniel. The jury considered the Tyler omissions and
what followed for their bearing on issues that were not litigated in Eakins or
Allen: Guy and Brock’s liability for fraud and bad faith in inducing Turner’s and
Harried’s settlements, and Illinois Central’s entitlement to relief from the
statute of limitations on account of Guy and Brock’s concealing their role in the
fraud. We also disagree with Guy and Brock’s alternative contention that this
case constitutes a collateral attack on the Eakins trial court’s judgments
dismissing Turner’s and Harried’s claims. Illinois Central did not seek to revive
those claims nor to obtain any other relief that would be inconsistent with the
Mississippi court’s dismissal of them.
B. Abstention
We review abstention decisions for abuse of discretion. Stewart v. W.
Heritage Ins. Co.16 Burford abstention “is concerned with protecting complex
state administrative processes from undue federal interference . . . .” New
Orleans Pub. Serv., Inc. v. City Council of New Orleans.17 The Burford plaintiff
brought a federal due process suit challenging a Texas Railroad Commission
order granting a drilling permit. The Supreme Court held that the federal
district court should have abstained, noting that the state’s regulatory scheme
15
Acuff, 950 So.2d at 952-55; McDaniel, 951 So.2d at 525-29
16
438 F.3d 488, 491 (5th Cir. 2006).
17
491 U.S. 350, 361,
109 S. Ct. 2506, 2515 (1989).
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was comprehensive, arose from the state’s great interest in husbanding its
mineral resources, and ensured a unified approach to permitting decisions by
limiting judicial review to a single court.18 The Supreme Court has subsequently
held that the Burford doctrine does not require abstention whenever there exists
a complex state administrative process, even if there is a potential for conflict
with state regulatory law or policy.19
The Supreme Court has recognized other significant limits on Burford
abstention. It is not appropriate when “timely and adequate state-court review”
is not available,20 and Burford does not allow district courts to dismiss or remand
actions that seek damages alone. Quackenbush v. Allstate Ins. Co.21 At most,
Burford allows a damages action to be stayed.22 Those limits bar abstention
here. This is an action for damages. Were Illinois Central’s fraud claims
dismissed, Mississippi’s applicable three-year statute of limitations would bar
refiling them in state court.23
Even if those limits did not apply, Burford abstention would be
inappropriate. We consider five factors when deciding whether Burford applies:
“(1) whether the cause of action arises under federal or state law; (2) whether the
case requires inquiry into unsettled issues of state law or into local facts; (3) the
importance of the state interest involved; (4) the state’s need for a coherent
18
Burford, 319 U.S. at 318-20, 320 n.12, 324-27, 635 S. Ct. at 1099-1100, n.12, 1102-04.
19
New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515 (citation and quotation
marks omitted).
20
Id. at 361, 109 S. Ct. at 2414.
21
517 U.S. 706, 731,
116 S. Ct. 1712, 1729 (1996).
22
Id.
23
See Miss. Code Ann. § 15-1-49; Sanderson Farms Inc. v. Ballard, 917 So. 2d 783 (Miss.
2005).
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policy in that area; and (5) the presence of a special state forum for judicial
review” Moore v. State Farm Fire & Cas. Co.24 Only the first, and possibly the
third factor favor abstention here. The relevant doctrines of Mississippi law are
well settled. Mississippi undoubtably has an important interest in policing
fraudulent conduct in litigation in its courts, but that interest is somewhat
attenuated by the fact that the benefit obtained by fraud in this case did not take
the form of a state-court judgment. A federal court’s adjudicating Illinois
Central’s claims does nothing to impair the coherence of Mississippi’s policy with
respect to settlement fraud. Finally, Mississippi has arguably provided a
“special forum” for actions seeking relief from a judgment obtained by fraud by
requiring that such actions be brought in the court that rendered the judgment,
but in this case Illinois Central did not seek relief from any judgment rendered
by a Mississippi court.
III. Fraudulent Concealment and Waiver
A. Standard of Review
We review the disposition of motions for judgment as a matter of law de
novo, applying the same standard as the district court. Flowers v. S. Reg’l
Physician Servs. Inc.25 That standard requires the court to disregard all evidence
favorable to the movant that the jury was not required to believe. E. Tex. Med.
Ctr. Reg’l Healthcare Sys. v. Lexington Ins. Co.26 The court must view the trial
24
556 F.3d 264, 272 (5th Cir. 2009) (internal citation omitted).
25
247 F.3d 229, 235 (5th Cir. 2001).
26
575 F.3d 520, 525 (5th Cir. 2009).
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evidence in the light most favorable to the nonmovant, making all reasonable
factual inferences and credibility assessments in the nonmovant’s favor. Mullins
v. TestAmerica, Inc.27
B. Fraudulent Concealment
Guy and Brock contend that Illinois Central presented insufficient
evidence of fraudulent concealment to defeat their statute-of-limitations defense.
The applicable statute of limitations is the three-year period provided by §
15-1-49 of the Mississippi Code. Sanderson Farms, Inc. v. Ballard.28 The
relevant part of § 15-1-49 provides that:
(1) All actions for which no other period of limitation is prescribed
shall be commenced within three (3) years next after the cause of
such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed
and which involve 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.29
The statute of limitations normally runs from the time of the injury, not from its
discovery. State Indus. Products Corp. v. Beta Technology, Inc.30 But
Mississippi Code § 15-1-49(2) provides a discovery rule that applies if a latent
injury is present. See Archer v. Nissan Motor Acceptance Corp.31 A latent injury
is “one where the plaintiff will be precluded from discovering harm or injury
because of the secretive or inherently undiscoverable nature of the wrongdoing
27
564 F.3d 386, 403 (5th Cir. 2009).
28
917 So. 2d 783, 789 (Miss. 2005).
29
Miss. Code Ann. § 15-1-49(1),(2) (Rev. 2003).
30
575 F.3d 450, 456 (5th Cir. 2009).
31
550 F.3d 506, 509 (5th Cir. 2008).
17
No. 10-61006
consolidated with
No. 11-60122
in question . . . .” PPG Architectural Finishes, Inc. v. Lowery.32 The “focus is on
the time that the patient discovers, or should have discovered by the exercise of
reasonable diligence, that he probably has an actionable injury.”33 Section
15-1-49(2) delays accrual until a party discovers its injury, regardless of whether
he has also discovered the cause.34
Illinois Central’s claims thus accrued on February 13, 2004, the date when
Peters and Garrett testified that they learned of Turner’s and Harried’s
participation in Cosey. At trial, Illinois Central sought to prove that the statute
of limitations was tolled by Mississippi Code § 15–1–67, which provides tolling
for fraudulent concealment:
If a person liable to any personal action shall fraudulently conceal
the cause of action from the knowledge of the 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.35
Any party who asserts fraudulent concealment under § 15–1–67 must prove
that: “(1) some affirmative act or conduct was done and prevented discovery of
a claim, and (2) due diligence was performed on the party’s part to discover [the
claim].” Spann v. Diaz.36 The first element requires an affirmative action that
is actually designed to prevent discovery of the claim. Channel v. Loyacono.37
The second element requires proof that the plaintiff acted with due diligence in
32
909 So. 2d 47, 50 (Miss. 2005) (internal quotation marks and citation omitted).
33
Id. at 51 (quoting Wright v. Quesnel, 876 So. 2d 362, 366 (Miss. 2004)).
34
State Indus. Products Corp., 575 F.3d at 454.
35
Miss. Code Ann. § 15–1–67 (Rev. 2003).
36
987 So. 2d 443, 450 (Miss. 2008) (internal quotation marks, citation, and punctuation
omitted).
37
954 So. 2d 415, 423 (Miss. 2007).
18
No. 10-61006
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No. 11-60122
attempting to discover the claim, and that the plaintiff was nevertheless unable
to do so. Robinson v. Cobb.38
Illinois Central joined Guy and Brock to the two actions making up the
instant case on January 17, 2008, and February 4, 2008. The dispositive
question is thus whether the evidence at trial was sufficient for a reasonable jury
to conclude (1) that Guy and Brock committed affirmative acts that prevented
discovery of their responsibility for the Turner and Harried omissions until
February 4, 2005, and (2) that from February 13, 2004, until February 4, 2005,
Illinois Central exercised due diligence to discover who was responsible for the
Harried and Turner omissions.39
38
763 So. 2d 883, 887 (Miss. 2000).
39
The district court’s instructions regarding the statute-of-limitations fraudulent-
concealment issues read as follows:
Jury Instruction No. 5
The law requires that a party seeking to recover damages must file its lawsuit
within a certain period of time. This period of time is known as the statute of
limitations. A statute of limitations is a law that bars a suit from being filed if a
plaintiff does not bring it within a prescribed period of time. The time period
within which the suit must be brought begins when the plaintiff first knew, or by
the exercise of reasonable diligence should have discovered the injury. The Court
instructs you that the statute of limitations applicable to the plaintiff’s claims in
this case is three (3) years.
(. . . .)
Jury Instruction No. 6
In regard to the statue of limitations, the Court instructs you that the plaintiff
has asserted that the defendants fraudulently concealed the alleged fraud against
the plaintiff and that this fraudulent concealment tolled the three (3) year statute
of limitations as to the plaintiff’s claims. In order to prove fraudulent concealment
of the claims to toll the statute of limitations, the plaintiff must prove by a
preponderance of the evidence that the defendants committed an affirmative act
to conceal the underlying tortious conduct, and that the plaintiffs failed to discover
the factual basis for the claims despite the exercise of due diligence.
If you find that the plaintiff has proven by a preponderance of the evidence
that the defendants fraudulently concealed the alleged claims, the cause of action
shall be deemed to have first accrued at, and not before, the time at which such
fraud was, or with reasonable diligence might have been, first known or discovered
19
No. 10-61006
consolidated with
No. 11-60122
We find that there was sufficient evidence of affirmative acts of
concealment. In the April 22, 2004 letter to Peters, Guy and Brock assured
Illinois Central that they had been thorough and accurate in collecting
information from the Eakins plaintiffs. Guy and Brock made similar assurances
in the hearings in June and August, 2004, and at Tyler’s truncated deposition
in August 2004. Guy and Brock also promised, in the March 29, 2004
handwritten agreement, that they would send Illinois Central a letter explaining
their procedures for collecting the information. And on April 28, 2004, Guy and
Brock sent Illinois Central a letter falsely purporting to be from Fred Tyler and
stating that the omissions from Tyler’s interrogatory responses were simply a
mistake on Tyler’s part. Finally, Guy and Brock terminated Tyler’s August 2004
deposition shortly after it began. From these acts, the jury could have
reasonably inferred a design on Guy and Brock’s part to conceal their disregard
for the truth with respect to materials they prepared on behalf of Tyler and other
Eakins plaintiffs, including Turner and Harried.
It was not unreasonable for the jury to conclude that Illinois Central
exercised due diligence. Peters and Garrett testified that they believed Guy and
Brock’s assurances, and Peters’s comments at the June 2004 hearing can be
understood as expressing concern that many Eakins plaintiffs had given Guy
and Brock inaccurate information, rather than as suspicion of Guy and Brock’s
having committed fraud. Arguably, Guy and Brock’s failure to supply the
promised letter describing their procedures and their refusal to allow Illinois
Central’s attorneys to complete Tyler’s deposition should have raised suspicion
that Guy and Brock were concealing wrongdoing. But Illinois Central’s counsel
could have reasonably attributed their conduct to defensiveness of their
by the plaintiff.
20
No. 10-61006
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No. 11-60122
professionalism in collecting information from their clients and frustration with
the course the litigation had taken since the revelation of the Tyler omissions.
Dilatory and defensive conduct is not unusual in litigation, particularly when an
agreement settling a large case has broken down. Such conduct rightly provokes
suspicion that opposing counsel is hiding something. But a reasonable litigant
would not typically assume that what is being hidden is opposing counsel’s own
fraud. Even when a litigant has reason to suspect there has been some kind of
malfeasance in the conduct of the litigation, he should be permitted to give
opposing counsel the benefit of the doubt in the face of repeated assurances of
opposing counsel’s good faith and best efforts.
Guy and Brock point out that even if Illinois Central should not have
suspected them of fraud, it certainly had reason to suspect Harried and Turner.
We note that Illinois Central need not demonstrate due diligence with respect
to its claims against Turner and Harried; its suits against them were timely.
And for the reasons already stated we do not fault Illinois Central for assuming
that it was Turner and Harried, rather than Guy and Brock, whom Illinois
Central should sue for the settlement fraud. Guy and Brock make much of the
fact that Illinois Central never called the Turner and Harried omissions to Guy
and Brock’s attention during the Eakins litigation. But in trying to get to the
bottom of the Tyler omissions, Illinois Central pursued much the same inquiry
it would have made had it raised the Turner and Harried omissions. Illinois
Central tried to find out how Guy and Brock collected information from their
clients in order to determine whether the Tyler omission was an isolated
incident or symptomatic of some systematic problem. When Illinois Central
tried to find those things out, Guy and Brock responded with assurances that
they had been honest and thorough in gathering information from their clients.
Illinois Central sought to verify those assurances. Its attorneys tried to depose
21
No. 10-61006
consolidated with
No. 11-60122
Tyler and they demanded that Guy and Brock supply the description of their
procedures that was promised in the March 2004 handwritten agreement. It is
very likely that those measures would have ultimately revealed Guy and Brock’s
role in the Turner and Harried omissions. But Guy and Brock prevented that
by terminating Tyler’s 2004 deposition and failing to provide the description.
The jury could reasonably have concluded that Guy and Brock would not have
been more cooperative in response to inquiries about the Turner and Harried
omissions.
As it happened, the Eakins trial court refused to force Guy and Brock to
provide the description of their procedures or provide any further relief on the
basis of the Tyler omission, and Illinois Central calculated that it could best
pursue the Turner and Harried omissions in a different forum. Guy and Brock
contend that countenancing Illinois Central’s forum shopping would offend
principles of comity because Mississippi law obliges a party seeking relief from
a judgment to proceed in the court that rendered it. But that argument assumes
that in bringing this action Illinois Central sought relief from a judgment
rendered in the Eakins litigation, which it did not. None of the authorities Guy
and Brock cite indicate that the beneficiary of a judgment of dismissal who was
defrauded into paying too much for the plaintiff’s agreeing to the judgment must
sue in the same court that rendered it. Such a rule would be anomalous, given
that the suit does not seek to reopen the dismissed case or question the validity
of the court’s judgment. Cf. Kokkonen v. Guardian Life Ins. Co. of America.40
We conclude that the trial evidence sufficed for a reasonable jury to find
that Guy and Brock’s representations during the Eakins litigation prevented
discovery of their responsibility for the Turner and Harried omissions until after
40
511 U.S. 375, 380-81,
114 S. Ct. 1673 1676-77 (1994).
22
No. 10-61006
consolidated with
No. 11-60122
February 4, 2005, and that due diligence did not require Illinois Central to
investigate the Harried and Turner omissions any more aggressively than they
did.
C. Waiver.
Guy and Brock contend that Illinois Central’s conduct in the Eakins
litigation after discovering the Turner and Harried omissions constituted a
waiver of its claims. They rely on Turner v. Wakefield41 and Bogy v. Ford Motor
Company.42 In Turner, the Mississippi Supreme Court restated Mississippi’s
general rule that a party who discovers it has been fraudulently induced to enter
into a contract “has an election to either rescind, in which event he must tender
back that which he has received, or he may affirm the agreement, and maintain
his action in damages for deceit.”43 In Bogy, the Fifth Circuit made an Erie guess
that the Mississippi Supreme Court would extend this rule to settlement
agreements.44
The Turner court also explained that a party that has discovered it was
induced into an agreement by fraud waives the right to rescind or sue for
damages if the party continues to ratify the contract by carrying out its
obligations or accepting the contract’s benefits.45 The Turner court adopted this
rule from a Colorado Supreme Court case, Stoner v. Marshall.46 In both Turner
41
481 So. 2d 846 (Miss. 1985).
42
538 F.3d 352 (5th Cir. 2008).
43
Turner, 481 So.2d at 848 (internal citation omitted).
44
Bogy, 538 F.3d at 355 (holding that plaintiff could affirm the agreement and sue for
fraud rather than rescind and return settlement payments).
45
Turner, 481 So.2d at 848.
46
358 P.2d 1021 (Colo. 1961).
23
No. 10-61006
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No. 11-60122
and Stoner, the plaintiff had purchased a business and, as payment, agreed to
make installment payments over a number of months or years.47 The plaintiff
was disappointed in the business, feeling it was less profitable than was
promised, but the plaintiff nevertheless continued operating the business and
paying installments for some time.48 The plaintiff eventually defaulted, and
when the plaintiff was sued on the debt the plaintiff asserted that the purchase
of the business was fraudulently induced by misrepresentations of its
profitability.49 Both courts held that the plaintiff waived the right to rescind or
sue for damages by continuing to make payments and operate the business. 50
Otherwise, a party who discovers he was fraudulently induced to make an
agreement could speculate on the value of the contract by continuing to perform
and receive its benefits. If the contract turns out well for him, he can ratify; if
it does not, he can either rescind or affirm and sue for damages.51 Thus, “Upon
discovery [of the fraud], the one defrauded must act promptly and finally to
repudiate the agreement; however, a continuance to ratify the contract terms
constitutes a waiver.”52
Before the district court, Guy and Brock argued that under Bogy and
Turner Illinois Central waived its fraud claims by failing to rescind Harried’s
and Turner’s settlement agreements. Rejecting this argument, the district court
correctly observed that Illinois Central also had the option of affirming the
47
Turner, 481 So.2d at 847; Stoner, 358 P.2d at 1021-22.
48
Turner, 481 So.2d at 847-48; Stoner, 358 P.2d at 1022.
49
Turner, 481 So.2d at 848; Stoner, 358 P.2d at 1022.
50
Turner, 481 So.2d at 849-50; Stoner, 358 P.2d at 1022-23.
51
Turner, 481 So.2d at 849-50; Stoner, 358 P.2d at 1023.
52
Turner, 481 So.2d at 849 (citing Stoner, 358 P.2d at 1022-23).
24
No. 10-61006
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No. 11-60122
settlements and suing for damages. On appeal, Guy and Brock invoke Turner’s
requirement that after a party discovers it was fraudulently induced to make an
agreement, the party waives its claim if it continues to perform obligations or
accept benefits under the contract. Guy and Brock argue that by failing to raise
the Turner and Harried omissions with the Eakins trial court, Illinois Central
failed to “promptly” choose between rescinding the settlement agreements or
affirming them and then suing for damages.53
Turner and the other Mississippi cases Guy and Brock cite on this point
stand for the proposition that after learning of fraudulent inducement, a party
may not carry on performing or benefitting from a contract without waiving its
right to rescind or bring a claim. In each case, the fraud plaintiff ratified the
contract by performing an obligation or accepting a benefit after the plaintiff
knew or should have known of fraudulent inducement.54 Although Illinois
Central did not repudiate the settlement agreements with Turner and Harried,
there is no evidence it did anything to ratify them after February 13, 2004.
Illinois Central acted strategically by seeking relief in separate action rather
than calling the Eakins trial court’s attention to the fraud, but that does not
53
If we found merit in the argument Guy and Brock make on appeal, we would be
required to consider whether it must be considered waived because of its differences from the
argument they made before the district court. See Celanese Corp. v. Martin K. Eby Const.
Co., Inc., 620 F.3d 529, 531 (5th Cir. 2010). Because we find that Guy and Brock’s argument
based on Turner lacks merit, we express no opinion as to whether it was waived.
54
Holland v. Peoples Bank & Trust, Co., 3 So. 3d 94, 103 (Miss. 2008); Edwards v.
Wurster Oil Co., Inc.,
688 So. 2d 772, 777 (Miss. 1997); Allen v. Mac Tools., Inc.,
671 So. 2d 636,
640-42 (Miss. 1990); Austin Dev. Co., Inc. v. Bank of Meridian,
569 So. 2d 1209, 1212 (Miss.
1990); Turner, 481 So.2d at 848; Citizens Nat’l Bank v. Waltman,
344 So. 2d 725, 727-28 (Miss.
1977).
25
No. 10-61006
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No. 11-60122
show that Illinois Central was somehow able to speculate on the value of the
releases of Turner’s and Harried’s claims.55
IV. Conclusion
The district court’s judgment is AFFIRMED. The motion carried with
case is DENIED as moot.
55
671 So.2d at 640-42.
26
No. 10-61006
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No. 11-60122
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
I would reverse because doing nothing is not due diligence. The record
reflects that, despite obtaining evidence of Guy’s and Brock’s potentially
fraudulent conduct, Illinois Central took no action to investigate or pursue its
potential claims after August 27, 2004, the date of the Fred Tyler deposition.
Illinois Central conceded this point at oral argument, acknowledging that it
could not point to “specific actions after August” to demonstrate its due diligence.
Pursuant to the Mississippi Code’s three year statute of limitations, Illinois
Central was therefore required to sue Guy and Brock no later than August 27,
2007. Illinois Central did not join Guy and Brock in the actions against Willie
Harried and Warren Turner until January 17, 2008 and February 4, 2008,
respectively. That was too late. The claims against Guy and Brock are time
barred.
The majority opinion applies the fraudulent concealment statute to excuse
the tardiness of the claims but, in doing so, gives short shrift to Mississippi’s due
diligence requirement:
If a person liable to any personal action shall fraudulently
conceal the cause of action from the knowledge of the 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.
Miss. Code § 15-1-67 (emphasis added). The Supreme Court of Mississippi
has repeatedly held that “[a]ny party who asserts a claim of fraudulent
concealment must prove that (1) some affirmative act or conduct was done and
prevented discovery of a claim, and (2) due diligence was performed on the
party’s part to discover it.”1 Spann v. Diaz, 987 So. 2d 443, 449 (Miss. 2008)
1
“To determine Mississippi law, we look to the final decisions of Mississippi’s highest
court.” Estate of Bradley ex. rel. Sample v. Royal Surplus Lines Ins. Co., 647 F.3d 524, 528–29
(5th Cir. 2011).
27
No. 10-61006
consolidated with
No. 11-60122
(citations, internal quotation marks, and alterations omitted). With regard to
the second prong, the movant must demonstrate that “he acted with due
diligence in attempting to discover the factual basis for his claims and was
unable to do so.” Bullard v. Guardian Life Ins. Co. of America, 941 So. 2d 812,
819 (Miss. 2006). Thus, “a plaintiff cannot satisfy the due diligence requirement
if he had information regarding the claim and failed to take action before the
statute of limitations expired.” Trustmark Nat’l Bank v. Meador,
81 So. 3d 1112,
1120 (Miss. 2012).
Illinois Central was required to act with due diligence through February
4, 2005 in order for its claims to survive the statute of limitations. The record
demonstrates, however, that from August 28, 2004 through February 4, 2005
Illinois Central failed to investigate or take any action whatsoever upon the
information in its possession that inculpated Guy and Brock.2 Such inaction
precludes tolling under the Mississippi Supreme Court’s interpretation of § 15-1-
2
The record reflects that Illinois Central possessed information in 2004 that seriously
inculpated either Guy’s and Brock’s clients or Guy and Brock themselves in fraudulent conduct
directed towards Illinois Central. First, Illinois Central learned in early 2004 that Turner,
Harried, and another Eakins plaintiff, Fred Tyler, had all failed to disclose their prior
participation in the Cosey litigation. Second, in June 2004, Illinois Central informed the
Mississippi court that it had concerns about “systemic problems” regarding disclosures (or lack
thereof) made by the Eakins plaintiffs. Third, despite Guy’s and Brock’s March 29, 2004
agreement to provide Illinois Central with their procedures for ensuring that their clients
reported accurate information, Guy and Brock never delivered said procedures. Fourth, Guy
and Brock prematurely terminated Illinois Central’s August 27, 2004 deposition of Tyler before
Illinois Central could inquire about Tyler’s non-disclosure of his connection to Cosey. The
foregoing facts, taken collectively, demonstrate that Illinois Central was on notice in 2004 that
a cause of action potentially existed against Guy and Brock. See also Spann, 987 So.2d at 450
(“The would-be plaintiff need not have become absolutely certain that he had a cause of action;
he need merely be on notice—or should be—that he should carefully investigate the materials
that suggest that a cause of action probably or potentially exists.” (quoting First Trust Nat’l
Ass’n v. First Nat’l Bank of Commerce, 220 F.3d 331, 336–37 (5th Cir. 2000))). Even the
majority opinion observes: “[a]rguably, Guy and Brock’s failure to supply the promised letter
describing their procedures and their refusal to allow Illinois Central’s attorneys to complete
Tyler’s deposition should have raised suspicion that Guy and Brock were concealing
wrongdoing.”
28
No. 10-61006
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No. 11-60122
67.3 See Meador, 81 So.2d at 1120; Spann, 987 So.2d at 450; Bullard v.
Guardian Life Ins. Co. of America, 941 So. 2d 812, 819 (Miss. 2006); Sanderson
Farms Inc. v. Ballard,
917 So. 2d 783, 790 (Miss. 2005); see also Boone v.
Citigroup, Inc.,
416 F.3d 382, 390 n.11 (5th Cir. 2005); Cf. First Trust Nat’l, 220
F.3d at 337–38 (“While fiduciary relationships do often obscure misfeasance on
the fiduciary’s part . . . the principal of a fiduciary is not thereby permitted
permanently and willfully to ignore patent evidence of the fiduciary’s breach so
as to delay indefinitely the accrual of an action against the fiduciary. Statutes
of limitations exist to protect the courts from indolent claimants as well as
defendants from stale claims.”) (emphasis added) (footnote omitted).
The majority opinion glosses over the critical temporal gap between
August 28, 2004 and February 4, 2005 by stating that “[e]ven when a litigant
has reason to suspect there has been some kind of malfeasance in the conduct
of the litigation, he should be permitted to give opposing counsel the benefit of
the doubt in the face of repeated assurances of opposing counsel’s good faith and
best efforts.” This statement, which is unsupported by any authority, improperly
conflates the two prongs of the tolling inquiry under § 15-1-67, thereby creating
an unprecedented exception to the Mississippi Supreme Court’s interpretation
of the statute. Guy’s and Brock’s assurances of good faith and best efforts, which
relate to the first prong’s affirmative act of concealment requirement, do not
offset or lessen Illinois Central’s burden to satisfy the due diligence prong.
I respectfully dissent.
3
Assuming Illinois Central truly did not suspect Guy and Brock of wrongdoing until
it deposed Harried on May 15, 2007, as it alleges, Illinois Central’s subjective viewpoint is
irrelevant for the purposes of our tolling inquiry. “The proper test is whether a reasonable
person similarly situated would have discovered potential claims.” Whitaker v. Limeco Corp.,
32 So. 3d 429, 436 (Miss. 2010) (citation and internal quotation marks omitted). Given the
facts discussed in footnote 2, supra, Illinois Central’s failure to suspect Guy and Brock of
wrongdoing in 2004 was objectively unreasonable.
29
