RANDOLPH, Presiding Justice, for the Court:
¶ 1. The conservators of Soon San Pak's estate filed suit against their two attorneys, Harrison County, the Harrison County Chancery Clerk, John McAdams, and the guardian ad litem appointed for Mrs. Pak, after the previously appointed conservator, Woodrow W. Pringle III, embezzled money from the estate. The claims were dismissed upon a finding by the circuit court that the applicable statutes of limitation had lapsed. The conservators appealed. McAdams cross-appealed, asserting that the trial court improperly held that the conservators asserted a Section 1983 claim by implication against him and that Pringle was a state actor for whom McAdams and Harrison County could be vicariously liable. Because the statute-of-limitation issue is dispositive, this Court will not address McAdams's cross-appeal.
¶ 2. In approximately 2001, Mrs. Soon San Pak underwent numerous surgeries after the discovery of a tumor on her pituitary gland. In 2002, Mrs. Pak's daughters, Julie and Jackie Smith, were informed that Mrs. Pak was no longer able to manage her estate. The daughters sought to establish a conservatorship but abandoned their pursuit after reaching an agreement with their stepfather, Yong Pak, regarding the care of their mother.
¶ 3. In 2005, Jackie and Julie Smith again sought to establish a conservatorship over their mother, after learning that Yong Pak's son Paul had obtained a cashier's check totaling more than $300,000, from one of Mrs. Pak's accounts.
¶ 4. On July 31, 2007, the Smiths, through one of their attorneys, Jane Meynardie, filed a motion with the chancery court, expressing concerns about Pringle's administration of their mother's estate. On the same day, the Smiths filed an accounting.
¶ 5. On January 23 and 24, 2008, the chancery court heard arguments on the following motions filed by Julie and Jackie Smith, as co-conservators of Mrs. Pak: Motion to Approve Supplemental Inventory filed May 10, 2006; Motion to Approve Final Accounting, inter alia, filed July 31, 2007; and Motion to Show Cause, inter alia, filed January 2, 2008.
¶ 6. On September 29, 2010, Pringle filed his first accounting with the court, showing that Mrs. Pak's Peoples Bank account had $277,082.58.
¶ 7. On June 29, 2012, Charles Benvenutti, as conservator of the estate of Soon San Pak, and Julie Smith and Jackie Smith, individually and as conservators of the person of Soon San Pak ("Conservators"), filed a complaint against Harrison County, Mississippi, Jane Meynardie, Clare Hornsby, Charliene Roemer, and John McAdams, after discovering that approximately $400,000 had been misappropriated or converted from the estate of Soon San Pak by Pringle.
¶ 8. The Conservators' June 2012 Complaint made the following allegations:
¶ 9. Harrison County filed a motion to dismiss the civil rights claim against it based on the running of the applicable statute of limitations. Harrison County claimed the Conservators had three years to file the action from the time they knew or should have known of Harrison County's tortious conduct. See Miss.Code Ann. ¶ 15-1-49 (Rev.2012). Harrison County argued that, at the latest, the Conservators should have known about the misconduct on July 31, 2007, the date the Smiths filed a motion with the chancery court expressing their concerns about Pringle's handling of the conservatorship. Alternatively, Harrison County contended that the Complaint failed to state a claim upon which relief could be granted under 42 U.S.C. § 1983. The Conservators contested the motion, stating that the Complaint was timely filed because they did not discover the wrongdoing until after Pringle's death in December 2010.
¶ 10. McAdams also filed a motion to dismiss pursuant to Rule 12(b)(6), arguing that the Complaint was not timely filed, as all tort claims were barred by the one-year statute of limitations and all Section 1983 claims were barred by the three-year statute of limitations. The Conservators responded, alleging again that the claims were timely filed due to the fact no wrongdoing was discovered until after Pringle's death in December 2010.
¶ 11. The Conservators filed a motion to sever the Section 1983 claims and bond claims from the Tort Claim Act claims for trial purposes, due to the differences of proof required. McAdams objected to the severance, claiming that the Conservators never alleged any Section 1983 violations against him. McAdams also moved the court to strike the new claims asserted. Harrison County also objected on the grounds that the Conservators had failed to state any Section 1983 claims upon which relief could be granted.
¶ 12. The trial court denied McAdams's motion to strike, finding that the Conservators "plead a claim in the Complaint by implication against John McAdams in his individual capacity." McAdams filed a motion to reconsider or, alternatively, a motion to dismiss, urging the court to reconsider its finding that the Conservators properly alleged Section 1983 claims against McAdams.
¶ 13. On October 8, 2013, the trial court heard testimony from Julie Smith.
¶ 14. The circuit court denied Harrison County and McAdams's motions for summary judgment as to the Section 1983 claims and the Tort Claim Act claims. The court sustained their motions to dismiss and/or motions for summary judgment as to the statute of limitations "on the grounds that the statutes of limitations application to Plaintiffs' § 1983 constitutional claims and Mississippi Tort Claims Act expired prior to the filing of the suit and/or the service of the tort claims notice letter." In his bench ruling, the trial judge stated as follows:
¶ 15. The Conservators filed a motion to reconsider, arguing that the statutes of limitation could not run because Mrs. Pak's disability was not removed until a competent conservator was appointed and the continuing violation doctrine did not end until Pringle's death. The circuit court denied the Conservators' motion to reconsider. The Conservators timely appealed.
¶ 16. The Conservators raise the following three issues:
¶ 17. This Court utilizes a de novo standard of review when considering questions of law and when reviewing a trial court's grant or denial of a motion to dismiss or motion for summary judgment. Burleson v. Lathem, 968 So.2d 930, 932 (Miss.2007); McLendon v. State, 945 So.2d 372, 382 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005); Andrus v. Ellis, 887 So.2d 175, 179 (Miss. 2004). "When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Burleson, 968 So.2d at 932 (quoting Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006)). See also Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (Miss.2010).
¶ 18. The Conservators filed both Section 1983 claims, which have a three-year statute of limitations, and Tort Claims Act claims, which have a one-year statute of limitations. Section 15-1-49(2) reads, "[i]n 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." Additionally, in Caves v. Yarbrough, 991 So.2d 142, 155 (Miss.2008), this Court held that "the limitations period for MTCA claims does not begin to run until all the elements of a tort exist, and the claimant knows or, in the exercise of reasonable diligence, should know of both the injury and the act or omission which caused it."
¶ 19. "The question of whether a statute of limitations is tolled by the discovery rule often turns on the factual determination of `what the plaintiff knew and when.'" Stringer v. Trapp, 30 So.3d 339, 342 (Miss.2010) (quoting Huss v. Gayden, 991 So.2d 162, 168 (Miss.2008)). Thus, "`[o]ccasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.'" Stringer, 30 So.3d at 342 (quoting Smith v. Sanders, 485 So.2d 1051, 1053 (Miss.1986)).
¶ 20. In their motion for reconsideration, the Conservators argued for the first time that the statutes of limitation
¶ 21. In addition to Pringle being appointed conservator of Pak's estate, the Smiths were appointed as coconservators of Pak's person. The Smiths also retained two attorneys, and the court appointed a guardian ad litem to represent the interests of Mrs. Pak in the conservatorship.
¶ 22. Section 93-13-27 of the Mississippi Code reads in pertinent part that:
Miss.Code Ann. § 93-13-27 (Rev.2013) (emphasis added). "Where a guardian or conservator has been court appointed for a ward, there is no logical or equitable reason to prevent the running of the statute of limitations inasmuch as that guardian or conservator is fully authorized to employ attorneys and bring actions on their behalf." USF & G Co. v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss.2002) (citing McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788 (Miss.1998)) (statute of limitations is not tolled when a person of unsound mind has a guardian).
¶ 23. Mrs. Pak's disabilities were removed when she was appointed a conservator of her estate, coconservators of her person, and a guardian ad litem. The Smiths, through their attorneys, and the guardian ad litem had specific authority to request permission from the court to file suit on behalf of Mrs. Pak pursuant to Section 93-13-27. The Conservators' argument that Mrs. Pak's disability remained in effect, tolling the statutes of limitation, until Benvenutti was authorized to file suit on Pak's behalf is without merit. The trial court properly denied the motion for reconsideration on this issue, finding Melson, supra, to be controlling.
¶ 24. A complaint was filed against Harrison County, Jane Meynardie, Clare Hornsby, and Charliene Roemer on March 23, 2011.
¶ 25. The Conservators argue that they did not become aware that Pringle was embezzling from Mrs. Pak's estate until after his death in December 2010. However, the record is fraught with testimony that all interested persons were aware, at the very latest, by January 2008 that Pringle had failed to file an accounting. Additionally, the Conservators and their experts testified that, had Pringle been compelled to file an accounting with requisite bank statements, they would have been made aware that he was embezzling from Pak's estate. But the decision not to force Pringle to file an accounting was a strategic one.
¶ 26. In a sworn affidavit dated November 16, 2012, Julie Smith
¶ 27. Additionally, on April 14, 2010, Pringle explained to Julie that he needed to write her a reimbursement check on his trust account instead of her mother's conservatorship account. Julie informed Meynardie, who in turn requested an accounting and bank statements from Pringle. Meynardie sent Pringle another letter, demanding an accounting.
¶ 28. Julie testified that, in early June 2010, Pringle finally provided Meynardie with a draft accounting, which showed $277,082.58 in the account, and also finally paid deliquent property taxes on some of Mrs. Pak's property. Meynardie filed a motion addressing Julie's concerns regarding Pringle's handling of the estate. The chancellor ordered Pringle to pay certain expenses and attorney's fees but did not address the issue of Pringle providing an official accounting. Julie testified that she did not know why neither Meynardie nor the chancellor addressed this issue at the hearing.
¶ 29. In a subsequent affidavit, dated August 14, 2013, Julie testified that "[f]rom the time that we established the conservatorship until Pringle died, our primary focus was on Yong Pak and trying to
¶ 30. Jackie Smith was deposed on April 3, 2013. Jackie testified that she probably knew on January 24, 2008, that Pringle had not filed any accountings. She testified that by January 2009 she knew Pringle had not filed an accounting and "this is when it started to get really agitating and we wanted to really, you know, try to get him to do one."
¶ 31. Julie Smith was deposed on April 5, 2013. Julie testified that, at the January 2008 hearing, she was aware that the only accounting that had been filed was the one filed by her sister and herself. She testified that both she and Meynardie were aware in 2007 and 2008 that Pringle had not filed an accounting. Julie stated that she, Jackie, and Meynardie had mentioned to Pringle that they wanted to see an accounting and "he said that he was trying to get all the estate—the property, and the cars, and the subpoenas out, and that he couldn't give an accounting until he knew what was there. So we believed him." She recalled discussing with Meynardie the desire to have Pringle work with them on the divorce to get it completed, instead of pressing for an accounting and risking having Pringle angry with them.
¶ 32. Meynardie also was deposed and testified that the chancellor and all attorneys present at the January 2008 hearing knew Pringle had not filed an accounting. Meynardie testified that in, January 2009, she and her clients decided they would not push Pringle to file an accounting at that point. When questioned as to the reasoning behind that decision, she stated that they were "fighting a war with the step daddy. Any time we wanted to do anything, we would have to go into Court, and get an order, and argue with the step daddy over whether it was an appropriate thing to do. And so there certainly were times when I said, this is not the time to go to war with Mr. Pringle because he's being friendly and supportive of our efforts, vis-a-vi [sic] the stepfather, and we don't want to pick that fight today. Let's take care of this and then turn to Mr. Pringle." She further testified that as of January 22, 2009, she was aware that Pringle had not filed an accounting, as he was legally required to do.
¶ 33. John Dongieux, the coconservators' attorney expert, was deposed and testified that "if Mr. Pringle would have filed an accounting in compliance with the rules and the required bank certificates, his embezzlement would have been discovered." Annette Herrin, the coconservators' accounting expert, testified that one of the reasons Pringle was able to embezzle money from Mrs. Pak's accounts was that no efforts were made to compel him to
¶ 34. The Conservators' own experts testified that, had the Conservators sought an accounting, the embezzlement would have been discovered. Julie Smith also testified that, if she had received bank statements, which are required to be attached to the accounting, she would have known as early as 2007 that Pringle was embezzling from her mother's accounts. The Conservators and their attorney admitted that they had made a strategic decision to focus on the divorce aspect of the conservatorship and did not want to anger Pringle by having the court compel an accounting.
¶ 35. Harrison County and McAdams argued that the Conservators had made a conscious decision not to require Pringle to file an accounting. They asserted that the transcript from the January 24, 2008, hearing revealed that all interested persons were aware that Pringle had never filed an accounting since his appointment as conservator. Based on the 2008 date, the claims were barred by the applicable statute of limitations. Because this issue is dispositive, the remaining issues will not be addressed.
¶ 36. The Conservators should have discovered, by reasonable diligence, that Pringle was misappropriating funds from the estate no later than January 24, 2008, when the coconservators—using due diligence—would have received an accounting and bank statements regarding Pak's estate, and would have "by reasonable diligence... discovered the injury." Miss.Code Ann. § 15-1-49. The statute of limitations issue is not a question of fact for the jury because reasonable minds could not differ as to when the Conservators knew or should have known of Pringle's failure to file an accounting and, thus, Harrison County's and McAdams's failure in requiring an accounting to be filed. Stringer, 30 So.3d at 342 (quoting Smith v. Sanders, 485 So.2d 1051, 1053 (Miss. 1986)). Based on the record before us, the trial court properly held that the Conservators' claims were barred by the applicable statutes of limitation.
¶ 37.
WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ. CONCUR.