author: CARTER, C.J.

text:
    Alvin CARRAL v. WINN-DIXIE LOUISIANA, INC.
    No. 2005 CA 1482.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Thomas J. Hogan, Jr., Hammond, for Plaintiff-Appellant, Alvin Carral.
    James M. Taylor, Gina Talluto Cursain, New Orleans, for Defendant-Appellee, Winn-Dixie Louisiana, Inc.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C.J.

| ¡¡Claimant, Alvin Carral (Carral), appeals the denial of his workers’ compensation claim for supplemental earnings benefits (SEB). The workers’ compensation judge (WCJ) granted summary judgment in favor of the employer, Winn-Dixie Louisiana, Inc. (Winn-Dixie). For the following reasons, we affirm.

FACTS

Carral was an order selector at Winn-Dixie’s warehouse in Hammond, Louisiana. It is undisputed that Carral was injured on July 5, 2003 when a fire extinguisher fell on his back while he was working in the water aisle. Carral immediately sought medical attention at a hospital emergency room. He was diagnosed with a thoracic and lumbar strain/contusion. Carral followed up with his treating physician, Dr. Michael Dunn, who prescribed medication and eventually referred Carral to an orthopedic surgeon, Dr. Gordon McFarland. Dr. McFarland prescribed medication and physical therapy. Both doctors placed Carral on light-duty work, which Winn-Dixie provided at Carral’s full rate of pay.

In November 2003, Drs. Dunn and McFarland separately released Carral to full-duty work on a trial basis. However, Carral was unable to return to full-duty work at Winn-Dixie because he was terminated on November 12, 2003 pursuant to a “three strikes you’re out” policy after being late for work. Carral obtained 22 weeks of unemployment benefits beginning in December 2003. Drs. Dunn and McFarland discharged Carral from treatment in December 2003.

IsCarral did not seek further medical treatment for his back injury until April 14, 2004, when he saw Dr. Anthony S. Ioppola. Dr. Ioppola ordered an MRI scan which took place on June 14, 2004. The MRI revealed facet-joint inflammation. Dr. Ioppola recommended facet-joint injections, and Winn-Dixie’s workers’ compensation carrier approved the treatment; however, because of transportation problems, Carral did not receive the injections. Dr. Ioppola was of the opinion that Carral could work with light-duty restrictions.

On August 18, 2004, Carral filed a disputed claim for compensation for SEB, alleging that he had not been able to return to work since November 12, 2008. Winn-Dixie answered and filed a motion for summary judgment, arguing that Car-ral was able to work and, therefore, Carral could not meet his burden of proof for SEB that his injury rendered him incapable of earning ninety percent of his pre-injury wages. After a hearing, the WCJ granted summary judgment in favor of Winn-Dixie, finding that Carral became “separated from his employment” for reasons unrelated to his injury and he had not met his burden of proof for SEB. Carral appeals, contending that the WCJ’s judgment is wrong as a matter of law.

DISCUSSION

The purpose of SEB is to compensate the injured employee for wage earning capacity he has lost as a result of an accident. Hurst v. Baker Sand Control, 94-2463 (La.App. 1 Cir. 10/6/95), 671 So.2d 408, 411. Louisiana Revised Statute 23:1221(3)(a) provides that SEB shall be paid “[f|or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.” The claimant in a SEB case bears the initial burden of proving by a preponderance of the evidence that a workjrelat-ed4 injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Blanchard v. Federal Express Corp., 95-0349 (La. App. 1 Cir. 11/9/95), 665 So.2d 11, 13. A claimant is not entitled to SEB when his inability to earn wages equal to ninety percent of his pre-injury wages is due to circumstances other than his work-related injury. Hurst, 671 So.2d at 412. The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available. Blanchard, 665 So.2d at 13.

Ordinarily, findings of fact and the determination of whether a claimant has satisfied his burden of proof in a workers’ compensation case is considered on appeal under the manifest error standard of review. Id.; Derrick v. Yamaha Power Sports of New Orleans, 03-184 (La.App. 5 Cir. 6/19/03), 850 So.2d 829, 834. However, because these issues have been raised in a summary judgment proceeding, we must review de novo the ruling of the WCJ, using the same criteria applied by the WCJ. See Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Guidry v. Stabil Drill Specialist, 05-1562 (La.App. 3 Cir. 5/3/06), 929 So.2d 814, 816.

Under de novo review, we find the record in its entirety reveals no genuine issue of material fact in dispute. See LSA-C.C.P. art. 966B. This is a situation where the claimant had been released to full-duty work after continuing to work on light-duty, earning his prior wage after his injury, but | Swas terminated by the employer for unrelated reasons. The record reveals indisputably that Carral’s termination was for failure to meet production quotas prior to his injury and tardiness, not for reasons related to his accident, injury, physical condition, or medical treatment. Under these circumstances, we find the evidence sufficiently supports the WCJ’s determination that Carral had failed to show the existence of any genuine issue of material fact, and summary judgment was properly rendered against him. See Seidl v. Zata-rain’s Inc., 05-780 (La.App. 5 Cir. 3/28/06), 927 So.2d 557, 563-64.

Further, Carral failed to establish the existence of any question of material fact regarding whether his injury was preventing him from earning ninety percent of his pre-injury wages. Although Carral complained of back pain after the date of his termination at Winn-Dixie, there is no evidence that the pain rendered him incapable of working and earning ninety percent of his pre-injury wages. All three doctors were of the opinion that Carral could work, and Carral did in fact work, earning his full wages, up until the date of his termination.

CONCLUSION

For the foregoing reasons, we affirm the WCJ’s judgment. Claimant, Alvin Carral, is cast with all costs of this appeal.

AFFIRMED.

      . This was Carral's third violation within a twelve-month period. The other two violations dealt with missing production quotas prior to his date of injury.

      . If successful, the claimant establishes a pri-ma facie case for SEB and the burden of proof shifts to the employer to show the claimant is physically capable of work. Alternatively, if the claimant alleges substantial physical pain prevents him from performing work offered or available paying at least ninety percent of his pre-injury wages, the employee must prove this by clear and convincing evidence. See Vicknair v. Nature Conservancy, 97-2229 (La.App. 1 Cir. 6/29/98), 718 So.2d 476, 479, writ denied, 98-2495 (La. 11/25/98), 729 So.2d 567.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    James E. McCRORY v. CAN DO, INC., et al.
    No. 2006-982.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 6, 2006.
    Andrew Robinson Johnson, IV, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee: Lake Charles Pilots, Inc.
    Lawrence N. Curtis, Lafayette, LA, for Plaintiff/Appellant: James E. McCrory.
    Clayton Arthur Larsh Davis, Samuel Bryan Gabb, Lundy & Davis, Lake Charles, LA, for Defendants/Appellees: Doekwise Shipping B.V., Shelf Company Management Services, Ltd., The Standard Club Doekwise USA, Ine.
    John B. Peuler, Anthony D’Alto, II, Elizabeth 0. Clinton, Peuler & Ernst, New Orleans, LA, for Defendant/Appellee: Can Do, Inc.
    Court composed of Judges ELIZABETH A. PICKETT, BILLY H. EZELL, and J. DAVID PAINTER.
   EZELL, Judge.

LThe Defendants-Appellees, Doekwise USA, Inc.; Doekwise Shipping B.V.; Shelf Company Management Services, Ltd.; The Standard Club; Can Do., Inc.; and Lake Charles Pilots, Inc., move to dismiss the appeal by the Plaintiff-Appellant, James E. McCrory, as untimely. For the reasons assigned below, although we deny the motion to dismiss the appeal, we remand this matter for further proceedings in accordance with this court’s ruling herein.

The Plaintiff filed suit against the Defendants seeking damages which arose from an incident in which the Plaintiffs fishing boat was capsized. The matter was tried before a jury, and on August 18, 2005, the jury returned a verdict finding the Defendants free of fault. The trial court signed a written judgment in conformity with the jury’s verdict on November 2, 2005; the clerk of the trial court sent the notice of judgment five days later, on November 7, 2005.

On May 31, 2006, the Plaintiff filed, by facsimile, a motion and order for a devolu-tive appeal. That facsimile filing was followed by another copy of the motion, sent by mail, on June 2, 2006. Also on June 2, the trial court informed the Plaintiff, by letter, that, in light of the Defendants’ opposition, the motion for appeal should be resubmitted as a contradictory motion. Regardless, on June 16, 2006, the trial court signed the order granting the appeal.

On June 19, 2006, the trial court issued a rule to show cause and set a hearing on the Rule for July 26, 2006. However, on July 19, 2006, the trial court informed all counsel that under La.Code Civ.P. art. 2088, the order of appeal, signed on June 16, divested the trial court of jurisdiction in the matter and that any remaining issues related to the timeliness of the appeal should be addressed by the appellate court.

The instant motion to dismiss was filed in this court on August 3, 2006. The | ¡.Defendants contend that the Plaintiffs appeal should be dismissed as untimely. The Plaintiff has filed a memorandum in opposition to the motion.

Initially, we note that the Plaintiffs motion for a devolutive appeal was clearly filed more than sixty-days after the mailing of the notice of judgment. The sixty day delay for obtaining a devolutive appeal from the judgment of August 18, 2005, began to run seven days, exclusive of holidays, from the mailing of the notice of this judgment on November 7, 2005. La.Code Civ.P. art. 2087. However, the Plaintiff requested, in the motion for appeal, an extension of the deadline for filing the appeal pursuant to La.R.S. 9:5824, which statute was enacted in the wake of the destruction wrought upon the state by Hurricane Katrina and Hurricane Rita, and which granted a suspension or extension of legal deadlines, under certain circumstances, for parties or attorneys located in some of the affected areas.

Louisiana Revised Statutes 9:5824(B)(1) provides:

(1) Notwithstanding the provisions of R.S. 9:2552 or 2553 [redesignated 9:5822 and 9:5823], a party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. [9:5822 and 5823], by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremptive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006.

In their brief to this court, the Defendants assert, in part, that the trial court | o.erred by signing the order for appeal because the Plaintiff did not meet the requirements expressed in the statute. We observe that La.R.S. 9:5824(B) requires that a party seek a suspension or extension of the time delays “by contradictory motion or declaratory judgment.” We note that the Plaintiff titled its filing in the trial court a “Motion and Order for a Devolutive Appeal.” We also note that, on its face, the motion for appeal appears untimely.

However, because the Plaintiff asserted a claim under La.R.S. 9:5824 in the motion for appeal, we find that a contradictory hearing must be held at which Plaintiff can be afforded the opportunity to meet the burden of proof imposed by La.R.S. 9:5824. Therefore, we deny the Defendants’ motion to dismiss the appeal, but we remand the matter to the trial court for a contradictory hearing to determine whether the Plaintiff was entitled to an extension of the delay for filing the instant appeal pursuant to La.R.S. 9:5824.

MOTION TO DISMISS APPEAL DENIED; CASE REMANDED WITH INSTRUCTIONS.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Paul L. JOHNSON.
    No. KA06-942.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 2006.

      Hon. Douglas L. Hebert, Jr., District Attorney, Oberlin, LA, for Appellee, State of Louisiana.
    Glen D. Vamvoras, Vamvoras & Schwartzberg, Lake Charles, LA, for Appellant, Paul L. Johnson.
    Court composed of ELIZABETH A. PICKETT, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

On April 14, 2004, the Defendant, Paul L. Johnson, pled guilty to negligent homicide and vehicular negligent injuring and was sentenced in accordance with the plea agreement. Pursuant to the agreement, the Defendant was placed on three years supervised probation, with general and special conditions. On June 1, 2006, a probation revocation hearing was conducted, after which the trial court revoked the Defendant’s probation and ordered him to serve the originally imposed sentence. The Defendant thereafter filed a motion for appeal from the trial court’s order revoking his probation and the trial court granted the motion on June 29, 2006.

On August 1, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the judgment at issue is not appealable. The Defendant failed to file a brief, or otherwise respond, by the August 21, 2006 deadline specified in this court’s order.

The judgment at issue herein is not appealable, pursuant to La.Code Crim.P. art. 912.1, therefore, the appeal in the above captioned case is hereby dismissed. Paul L. Johnson, Defendant, is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs or obtain an order setting a return date, pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Darnell JORDAN.
    No. 06-KA-187.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Rehearing Denied Oct. 16, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Frank A. Brindisi, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for PlaintifPAppellant.
    Overton T. Harrington, Jr., Attorney at Law, Gretna, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

|2The defendant was charged with possession of a handgun while in possession of marijuana in violation of LSA-R.S. 14:95(E). The defendant pled not guilty and filed a Motion to Quash the Bill of Indictment. The trial court granted the defendant’s Motion to Quash finding there was a lack of nexus between the weapon and the drugs. The State has appealed. For the reasons that follow we reverse and remand for further proceedings.

According to the police report, defendant was seen trying to conceal a loaded small silver handgun when the officer approached the car. A pat-down search revealed defendant was in possession of a plastic bag containing eight small bags of marijuana.

On appeal, the State contends a Motion to Quash was an improper vehicle for raising the issue of whether a nexus existed between the gun and the drugs. It contends the issue is a factual one that must be proven by the State and determined by the trier of fact. It asserts the issue goes to the merits of the case and cannot be raised by a Motion to Quash.

^Defendant responds that the State acquiesced in the manner in which the issue was raised and ruled upon and, thus, should be precluded from challenging the validity of such procedure on appeal. Specifically, defendant argues the State never raised the issue that the Motion to Quash was an improper procedural vehicle at the trial court level and, hence, cannot raise it for the first time on appeal.

The State filed a Bill of Information charging defendant with a violation of LSA-R.S. 14:95(E) in that he possessed a handgun while in possession of marijuana. Defendant filed a Motion to Quash on the basis his actions did not constitute “intentional concealment” of the weapon, which is required by LSA-R.S. 14:95(E). He also alleged the motion should be granted on other grounds not pertinent to this appeal.

The motion was set for hearing. The record reflects the matter was argued pri- or to the actual open court hearing as evidenced by the trial court’s statement at the commencement of the hearing:

Let me just — just to kind of cut to the chase of it, here, we’ve just conducted a pretrial hearing with reference to your motions. And your position is that, under the facts of this case, that there is no nexus or no relationship, at all, between the firearm involved in this case and the marijuana.
And, based upon that, you’re seeking a Motion to Quash this Bill of Information?

Defense counsel replied in the affirmative. No arguments were made on the record by either side and the matter was submitted. Thereafter, the trial court granted the Motion to Quash on the basis that defendant’s position had merit as it related to the facts of the case.

LSA-C.Cr.P. art. 531 provides that “[a]ll pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and ‘not | ¿guilty by reason of insanity,’ shall be urged by a motion to quash.” LSA-C.Cr.P. arts. 532 and 485 list the general grounds for quashing a Bill of Information, which include the failure of the indictment to charge a punishable offense and when it appears from the Bill of Particulars that the offense charged was not committed or that the defendant did not commit it.

A Motion to Quash is a mechanism whereby pre-trial pleas that do not go to the merits of the charge are urged. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. State v. Moten, 99-552 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210, 1211. A court considering a Motion to Quash must accept as true the facts contained in the Bill of Information and in the Bill of Particulars, and determine as a matter of law from the face of the pleadings whether a crime has been charged. While evidence may be adduced on the Motion to Quash, such evidence may not include a defense on the merits. State v. Stewart, 01-1041 (La.App. 5 Cir. 2/26/02), 811 So.2d 991, 993.

The trial court granted the Motion to Quash finding merit to defendant’s argument that there was no nexus between the gun and the marijuana; and, it was upon that basis that the trial court granted the Motion to Quash. The Bill of Information specifically alleged, “DARNELL JORDAN .... violated R.S. 14:95.E in that he did possess handgun while in possession of a CDS, to wit: Marijuana.” Defendant did not file a Motion for Discovery or a Bill of Particulars and, thus, no other details of the offense are available for review. Taking the allegations in the Bill of Information as true, as required in ruling on a Motion to Quash, defendant was charged with a punishable offense.

Whether the facts of the case constitute a sufficient nexus between the gun and the marijuana to satisfy the requirements of LSA-R.S. 14:95(E) is a factual |sissue, which goes to the merits of the case and is a question for trial. See, State v. Blanchard, 99-3439 (La.1/18/01), 776 So.2d 1165, 1173, where the Louisiana Supreme Court held that under LSA-R.S. 14:95(E) the State must prove some connection between the firearm possession and the drug offense. The Supreme Court noted the State could possibly prove the nexus by certain evidence including the type of firearm involved, the type of controlled dangerous substance involved, the quantity of drugs involved, the proximity of the firearm to the drugs, and whether the firearm was loaded.

As evidenced by Blanchard, the nexus requirement of LSA-R.S. 14:95(E) is fact sensitive. Thus, the trial court erred in granting the Motion to Quash on the basis there was no nexus between the firearm and the marijuana.

Defendant states that he was charged in a separate Bill of Information with possession of marijuana and that he pled guilty to this charge. He infers that if the Motion to Quash were reversed, the issue of double jeopardy would arise. There is no evidence of another Bill of Information or a guilty plea in the record, therefore, we cannot comment on defendant’s statements related to double jeopardy.

For the foregoing reasons, the judgment granting defendant’s Motion to Quash is reversed. Judgment is hereby entered denying defendant’s Motion to Quash. This matter is remanded for further proceedings.

REVERSED AND REMANDED.


author: EASLEY, Justice,

text:
    Stacey CARTER, Donnell Baylous, Bessie Y. Baylous, Jerry Harmon, Tina Harmon, Walter Henderson, Yumeka Henderson, Wannis D. Siddell and Delores Siddell v. CITIGROUP INC., CitiFinancial Mortgage Company, Inc., Associates Financial Life Insurance Company and American Health and Life Insurance Company.
    No. 2005-CA-00039-SCT.
    Supreme Court of Mississippi.
    July 20, 2006.
    Rehearing Denied Oct. 12, 2006.

      J. Brad Pigott, Jackson, J. Douglas Minor, attorneys for appellants.
    Richard Carlton Keller, Kermit Laguin Kendrick, attorneys for appellees.
    Before COBB, P.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This case involves the sale of credit life insurance with mortgage loans. The Plaintiffs in this action all obtained mortgage loans from Southern Mortgage Company (Southern Mortgage). The Plaintiffs alleged that Southern Mortgage breached its fiduciary duties by inducing them to buy overpriced credit life insurance with their loans. Southern Mortgage is not a party in this action. However, the Plaintiffs claimed that the Defendants induced Southern Mortgage to breach its fiduciary duties to the Plaintiffs.

¶2. Fifteen plaintiffs filed suit against nine defendants in the Circuit Court of the Second Judicial District of Hinds County, Mississippi, on August 7, 2002. In the course of the litigation, the claims of seven plaintiffs were dismissed because these plaintiffs previously agreed to arbitration against the defendants. The eight plaintiffs that remained were Donnell Baylous, Bessie Y. Baylous, Jerry Harmon, Tina Harmon, Walter Henderson, Yumeka Henderson, Wannis D. Siddell, and Delores Siddell (collectively known as the “Plaintiffs”).

¶ 3. These eight Plaintiffs later voluntarily dismissed all their claims against four of the original nine Defendants. The remaining five defendants were CitiFinan-cial Mortgage Company, Inc. (CitiFinan-cial Mortgage); Associates Financial Life Insurance Company (Associates Life); American Health and Life Insurance Company (American Health and Life) (collectively known as the Defendants) Artie Armstrong and Douglas Carson were defendants employed by Southern Mortgage d/b/a/ Heritage Mortgage Company.

¶ 4. In their First Amended Complaint, the Plaintiffs alleged conspiracy to breach the broker’s fiduciary duty; conspiracy to violate agent commission statutes; conspiracy to violate agent licensing statutes; negligent misrepresentation; breach of contractual duties of good faith and fair dealing; and negligent supervision. The Plaintiffs later voluntarily dismissed their claim for breach of contractual duties of good faith and fair dealing.

¶ 5. Once discovery was complete, the Defendants filed a motion for summary judgment against the Plaintiffs. On December 16, 2004, the trial court heard oral arguments on the motion and ruled in the Defendants’ favor. The trial court held:

[T]he Court finds that there has been a failure on behalf of the plaintiff to bring forth sufficient evidence that the relationship was anything other than that of an arm’s length transaction between mortgager and mortgagee. Therefore, the applicable statute of limitations bars all claims.

The trial court granted summary judgment and dismissed all of the Plaintiffs’ claims against the Defendants. On January 6, 2005, the circuit court signed a Rule 54(b) Certificate of Final Judgment M.R.C.P. 54(b). The final judgment found that the motion of Defendants Citigroup; CitiFinancial Credit; CitiFinancial Mortgage; Associates First Capital Corporation; Associates Corporation of North America; Associates Life; and American Health and Life, for summary judgment was well taken and granted. The final judgment also ordered that based upon the grant of summary judgment the Plaintiffs’ claims against Armstrong and Carson were also dismissed. Following this ruling, the Plaintiffs filed an appeal to this Court.

¶ 6. Finding that the claims are barred by the applicable three-year statute of limitations found in Miss.Code Ann. § 15 — 1— 49 (Rev.2003), we affirm the trial court’s grant of summary judgment.

FACTS

¶ 7. The Plaintiffs claimed that the Defendants conspired to induce Southern Mortgage to breach its fiduciary duties to them. Southern Mortgage ran a commercial stating that “we’re on your side.” Part of the agreement between Southern Mortgage and Associate Life stated that “Agent will be an independent contractor, and this Agreement will not be construed to create the relationship of employer and employee between Company and Agent.” Each of the loan transactions were independent of one another and occurred between 1997 and 1998. The facts concerning the separate transactions and individuals involved are as follows:

1. The Harmons

¶ 8. Jerry and Tina Harmon obtained a mortgage loan from Southern Mortgage. They closed on a mortgage loan on October 8, 1998, in Tupelo, Mississippi. The Harmons filed suit on August 7, 2002, almost four years after receiving their mortgage loan.

¶ 9. Jerry stated that in regard to obtaining a loan he was not going in to get financial or business advice. Nevertheless, “[w]ith Southern Mortgage or a mortgage company, you got to have some advice” about rates and whether bills should be consolidated. Jerry did not know the best way to get the loan money, but he stated that he relied on the Southern Mortgage employee “to tell you what’s the best. I didn’t know.” Jerry thought that the mortgage company would know whether he needed to consolidate all his bills. Jerry heard about Southern Mortgage through a television commercial. The commercial advertised about consolidating loans, getting a cheaper interest rate, getting lower payments, and having extra money.

¶ 10. The loan document that Jerry signed stated that he was purchasing credit insurance which was not required to obtain the loan. There was also a fifteen-day cancellation clause for the credit insurance. The loan document contained a “Credit Insurance Authorization” section which stated:

I understand that credit insurance is not required to obtain this loan. Insurance provided by Lender may be from an affiliated company which expects to profit from the insurance.
CANCELLATION OPTION: If I desire to do so I may, without penalty or obligation, within 15 days from the Date shown above, cancel all, but not part of, the optional credit insurance coverages by returning all credit insurance certificates received in connection with this loan to the Lender at the address set forth above. Upon cancellation, the unearned credit insurance premium will be credited to my account. Even though a credit is made to my account because the credit insurance is cancelled, I will still be obligated to continue making payments on my loan as scheduled.

Jerry signed this document on October 8, 1998.

¶ 11. Jerry received a GED and attended community college for a few years. According to his testimony, Jerry can read, write, and handle his own business affairs. He owns his own construction business. In the course of his business, he dealt with contracts. Jerry admitted that when a contract is signed one should be bound by the terms of the contact.

¶ 12. He saw a Southern Mortgage television commercial about obtaining a loan. Jerry went to Southern Mortgage to obtain a loan. He did not compare the rates of other mortgage companies or lenders. Jerry did not seek alternate financing or “shop around” between the time of his meeting at Southern Mortgage and the loan closing date. He understood what credit life insurance is and does. While he could not remember the name of the Southern Mortgage employee, Jerry admitted that the employee explained the cost of the credit life insurance. The man that Jerry spoke to never stated that he worked for Associates or CitiFinancial.

¶ 13. At the closing, Jerry signed numerous documents at a lawyer’s office with no Southern Mortgage employees present. Jerry did not read the closing documents. However, Jerry admitted that he was not prevented from reading the documents at the closing. When he returned home, Jerry did not read the documents either. Jerry admitted that he signed the “Credit Insurance Authorization” form which stated on its face that the premium was $3,441.99, that this insurance was not required to obtain a loan, that the insurance may be from an affiliated lender which expects to profit from the insurance, and had a fifteen-day cancellation provision. Jerry also signed a “Truth in Lending Disclosure Statement” that stated on its face that the interest rate was 13.639% and the 179 payments were in the amount of $541.26.

¶ 14. Tina Harmon never spoke with anyone from Southern Mortgage. She attended the loan closing with her husband Jerry. Tina did not disagree with any of the statements made by her husband, Jerry. Tina’s main concern was that a large commission was charged to them. She was not aware of any lies by the companies. Tina is a high school graduate and capable of handling her own financial affairs. She can read and write. Tina never read any of the loan documents. The credit life insurance was taken out on Jerry only. Tina did not have any credit life insurance in her name. Tina agreed that the credit life insurance was beneficial in the event her husband died because the loan would be paid. After the closing, Tina did not read the loan documents. Tina admitted that she and her husband are bound by the terms contained in the documents that they signed.

2. The Baylouses

¶ 15. Donnell and Bessie Baylous obtained a mortgage loan from Heritage Mortgage d/b/a Southern Mortgage. They closed on a mortgage loan on July 29, 1998, in Jackson, Mississippi. A disclosure statement signed by Donnell and Bessie stated “Credit Life Insurance and Credit Disability Insurance are not required to obtain credit, and will not be provided unless you sign and agree to pay the additional cost.” The Baylouses filed suit on August 7, 2002, more than four years after receiving their mortgage loan.

¶ 16. In an interrogatory answer, the Baylouses stated that they met with Carson. They relied on a commercial in which Carson and Armstrong, as Heritage Mortgage, stated in effect that they “served as experts in debt consolidation and lowering monthly bills, and would provide expertise and advise to their clients, and be on the side of their clients, in entering such mortgage arrangements.” At his deposition, when Donnell was asked if he was paying the representative, he stated “[w]hat I’m saying is, he’s a broker, right? Doug — I’m sure he got paid for doing this.” Also, Bessie stated that Carson told them that he had reviewed the loan documents, but he did not read through the documents with them. She also stated, “[t]hat’s why he got so much out of that. When we made the loan, he got so much money out of it to read them himself. That’s what he said.”

¶ 17. Donnell received a GED. He can read and write. He saw a television commercial for Southern Mortgage. Donnell stated that he did not know that he purchased credit life insurance, but that his wife, Bessie, was aware of it. However, he agreed that credit life insurance is not a bad idea.

¶ 18. No one forced Donnell to stay at the closing or take out a loan. Donnell admitted that he and his wife did not read all of the loan closing documents. However, they were not prevented from reading the documents. They were given a copy of the documents. The documents disclosed the interest rate, finance charge, amount of money financed and the total payments due, $745.51 per month. The documents also stated the purchase price for the credit life insurance which was initialed by Donnell. Donnell agreed that had he read the documents he would have seen the amount financed, the finance charge, the total payments, and that the credit life insurance was not required. The loan documents also had a notice of a right to cancel. Another loan document also stated that credit life insurance was not required to obtain a loan. The document stated in part, “I understand that credit life insurance is not required.”

¶ 19. Donnell stated that he never had any conversations with CitiFinancial Credit Company and did not know how CitiFi-nancial Mortgage, Associates First Capital Corporation, Associates Corporation of North America, Associates Financial Life Insurance Company had harmed him.

¶20. Bessie has a ninth grade education. She stated that she had no testimony different from her husband about how they heard about obtaining a loan. She agreed with her husband’s deposition about all of the loan closing information, except that there were three people present at the closing, not four as Donnell claimed. Bessie admitted that she did not read the documents. However, she did sign documents that stated that they had three days to cancel the loan and that they wanted credit life insurance. She agreed that she was not forced to sign the documents.

3. The Hendersons

¶21. Walter and Yumeka Henderson obtained a mortgage loan from Heritage Mortgage d/b/a/ Southern Mortgage. They closed on a mortgage loan on July 28,1998, in Jackson, Mississippi. A disclosure statement signed by Yumeka and Walter stated “Credit Life Insurance and Credit Disability Insurance are not required to obtain credit, and will not be provided unless you sign and agree to pay the additional cost.” The Hendersons filed suit on August 7, 2002, more than four years after receiving their mortgage loan.

¶ 22. Yumeka graduated from high school. She was enrolled in college at the time of the deposition. She can read and write. Yumeka saw a commercial on television for a loan and spoke to a friend that also received a loan. In an interrogatory response which Yumeka signed, she stated the “mortgage broker representative” that she dealt with “represented that they were professional experts in looking out for my interests in such mortgage transactions, they would in effect be ‘on my side’ in getting me the best deal for my family and to improve my financial situation as much as possible.” Yumeka also stated in an interrogatory answer:

At the time we dealt with Heritage Mortgage [Armstrong] was represented to be in the business or occupation of providing expertise and services in mortgage-related financial services and advice to borrowers involving how to consolidate and combine multiple loans, lower monthly payments, and otherwise simplify and improve the personal financial conditions of the individual customers.

She also stated that she understood Armstrong and his business to “represent interests of their customers in getting the best financial arrangement possible.” Had she read the documents, she would have understood the credit life insurance and known the purchase cost. Yumeka thought credit life insurance was a good idea and provided “security.”

¶ 23. Yumeka admitted that she and her husband, Walter, did not read the loan documents. Yumeka and her husband purchased insurance with the loan. The language of the contract stated that the lender can transfer the note. The documents also disclosed the interest rate and contained a notice of right to cancel within three days of obtaining the loan. The documents also disclosed that the credit life insurance was not required. Yumeka admitted that had she read the document, which she signed, she would have understood it. Yumeka signed these documents.

¶ 24. Walter has an eleventh grade education. He can read and write. He learned about the loan from a television commercial. On his second visit to the loan company, they discussed credit life insurance. Walter stated that his wife, Yumeka, makes all their business decisions. He agreed with everything that Yumeka stated in regard to Exhibit 1. He signed the truth in lending disclosure statement. Walter also agreed that he was not forced to sign any documents and was not prevented from reading the documents.

4. The Siddells

¶ 25. Wannis and Delores Siddell obtained a mortgage loan from Southern Mortgage. Wannis felt mistreated and felt like Southern Mortgage did not do what it promised him. When questioned about whether he read the loan closing documents before signing them, Wannis stated that he did not read them. He stated that the lady involved with the closing told him “sign here.” Wannis did not ask any questions about the documents because “she was talking so fast until I just thought she was straight.” The loan closing representative did not slow down when Wannis requested her to do so. Instead, the lady said “[ejverything was going to be all right.” According to Wannis, the lady “was a fast talker.” In regard to the purchase of the credit life insurance, Wannis stated at one point that the insurance “sounded pretty good.” Later, Wan-nis stated that he did not want to purchase credit life insurance. However, the representative told him that she thought the insurance would be “best.” Wannis also stated that the representative told him that the insurance would be “good.” However, he stated that “she didn’t tell me what it was going to cost me until after everything was signed.”

¶ 26. They closed on a mortgage loan on October 27,1997, in Tupelo, Mississippi. A disclosure statement signed by Wannis and Delores stated “Credit Life Insurance and Credit Disability Insurance are not required to obtain credit, and will not be provided unless you sign and agree to pay the additional cost.” CitiFinancial and Associates Life never made promises to Wan-nis. Delores never spoke to CitiFinancial, Associates Life, or American Health and Life. The Siddells filed suit on August 7, 2002, almost five years after receiving their mortgage loan.

¶ 27. Wannis has a GED. He can read and write and is capable of handling his own affairs. Wannis stated that it is a good idea to read documents before you sign them in order to understand what you are signing. At the closing, the Southern Mortgage employee told Wannis that the credit life insurance would cost about $8,000.00. Wannis understood credit life insurance and thought it was a good idea to have it. The insurance sounded pretty good because it would cover the house if anything happened to him.

¶ 28. Wannis admitted that he was not forced to sign any documents, nor was he prevented him from reading the loan documents. He was also given a copy of the loan documents. The credit life insurance provision stated that the insurance was not required. The loan documents also had a three-day cancellation provision. The loan documents stated that the loan interest rate was over 13%, the payment was $682.03, and the credit life insurance was $8,340.00. Wannis and Delores initialed and signed these documents.

¶ 29. Wannis was unsure who he was suing. He stated that he borrowed money from Southern Mortgage and not the Defendants. Wannis realized that Southern Mortgage did not do what they had promised to do in 1997.

¶ 30. Delores Siddell has an eleventh grade education. She can read and write and is capable of handling her own affairs. Delores understood the concept of credit life insurance and thought that it is a good idea. She also thought that it is a good idea to read documents before you sign them.

¶ 31. Delores admitted that she was not forced to go to Southern Mortgage for a loan, to close, or to sign any documents. She knew in 1997 that credit life insurance was purchased with the loan. The credit life insurance provision stated that the insurance was not required. The loan documents also had a three-day cancellation provision. The loan documents also stated that the interest rate, finance charges, and the payment amount. Wannis and Delores initialed and signed these documents. The loan documents stated that the loan may be sold without prior notice to the borrower.

¶ 32. At the closing Delores asked no questions but she was not prevented from asking any questions either. She stated that she never had any conversations with CitiFinancial Mortgage, Associates First Capital Corporation, Associates Corporation of North America, Associates Financial Life Insurance Company, and American Health & Life Insurance Company. None of these Defendants made any promises to pay off her bills, only Southern Mortgage made that promise. She realized that Southern Mortgage did not do what it had promised to do in 1997.

ANALYSIS

¶ 33. The Plaintiffs raise four issues on appeal concerning whether the trial court erred in granting summary judgment. The Plaintiffs assert that they established a genuine issue of material fact (1) as to their claim that Southern Mortgage owed a fiduciary duty; (2) in support of the Plaintiffs’ fiduciary-related claims; (3) in support of the Plaintiffs’ claim that the Defendants conspired for Southern Mortgage to breach fiduciary duties owed to the Plaintiffs by failing to disclose material facts; and (4) that these material non-disclosures tolled the statute of limitations.

¶ 34. The Plaintiffs argue that the Defendants had a fiduciary relationship with them. This relationship allegedly stemmed from CitiFinancial Mortgage and American Health and Life’s payment of commissions to Southern Mortgage, as the alleged “mortgage brokers,” for the sale of its credit life insurance. The Plaintiffs argue that Southern Mortgage held itself and its representative out as agents and fiduciaries by its slogan “we’re on your side.” The Plaintiffs stated in their depositions and answers to interrogatories that they relied upon Southern Mortgage as their alleged “brokers” to look out for their best interest or, in the very least, as representatives looking out for their best interests. In addition, the Plaintiffs argue that prior to 2002, no one at Southern Mortgage disclosed the payment of alleged illegally high commission proceeds, or that in order to receive the commissions, Southern Mortgage allegedly had to choose a lender with higher interest rates and could not find alternate credit life insurance from another company.

¶ 35. The trial court found that the Plaintiffs failed to demonstrate sufficient evidence that the relationship was anything other than that of an arm’s length transaction between mortgager and mortgagee. The trial court then barred all claims pursuant to the applicable statute of limitations.

¶ 36. “This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.” Stephens v. Equitable Life Assurance Society, 850 So.2d 78, 82 (Miss.2003). In Andros v. Ellis, 887 So.2d 175, 179 (Miss.2004), this Court held:

It is undisputed that the three-year statute of limitations set forth in Miss. Code Ann. § 15-1-49 (Rev.2003) is controlling in the instant case. See Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78 (Miss.2003); Am. Bankers’ Ins. Co. of Florida v. Wells, 819 So.2d 1196 (Miss.2001). Section 15-1-49 provides in part:
(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.
This Court employs de novo review when considering issues of law such as statutes of limitations. Stephens, 850 So.2d at 82.

¶ 37. Here, the Plaintiffs alleged breach of fiduciary duty, conspiracy, negligent misrepresentation, and negligent supervision. Much of the Plaintiffs’ allegations rely upon their dealings with Southern Mortgage, who is not a party to the law suit or this appeal. The parties argued all these issues at the summary judgment hearing before the trial court.

¶ 38. After listening to all the Plaintiffs’ arguments, the trial court ruled that the Plaintiffs’ relationship was no more than an arm’s length transaction between mortgagor and mortgagee. The trial court also ruled that the claims were barred by the applicable statute of limitations. An analysis based upon the statute of limitations must be addressed prior to any examination of the Plaintiffs’ issues.

¶ 39. This Court has held that there is a three-year statute of limitations for claims of breach of a fiduciary duty, misrepresentation, and conspiracy. See Am. Bankers’ Ins. Co. v. Wells, 819 So.2d 1196, 1200 (Miss.2001). This Court has also applied a three-year statute of limitations for fraudulent concealment, negligent hiring, and concealment. Stephens, 850 So.2d at 82. See also Miss.Code Ann. § 15-1-49; Sanderson Farms Inc. v. Ballard, 917 So.2d 783, 789 (Miss.2005) (fraudulent inducement and fraudulent concealment claims have a three-year statute of limitations and fraud claims accrue at the time of the completion of a sale induced by false representations or consummation of the alleged fraud);

¶ 40. In Andrus, this Court addressed a claim against a lender for fraudulent and negligent misrepresentation and fraudulent inducement in the purchase of credit life, disability, and property insurance. Andrus, 887 So.2d at 179. The Plaintiffs in Andrus alleged that they were either unaware that they purchased insurance, unaware that the insurance was not necessary, and the lender did not disclose the commission earned. Id. This Court found that the plaintiffs in Andrus were on notice of the terms of the contract and the credit insurance and all claims accrued at the time the loan agreements were executed. Id. at 180. In so far as the fraudulent concealment claim, the Court held that the Andrus plaintiffs had the documents in their possession and no one questioned any discrepancy between the document and their understanding of the document terms until filing suit. Id. at 181. As to the commission, this Court in Andrus held:

As to the alleged failure to disclose commissions, the Court finds this argument without merit. In the course of a private transaction where the seller encourages a buyer to purchase additional products, one would assume that the seller is motivated by some sort of incentive such as, in this instance, a commission. There is no testimony that the Defendants concealed or denied that they were receiving commissions nor is there any testimony regarding whether the Plaintiffs specifically inquired as to such. Likewise, there is no allegation in fact or duty under law to support the argument that the Defendants were obligated to do so. We presume that parties enter into private transactions for their own personal benefit.

Andrus, 887 So.2d at 181-82 (emphasis added).

¶ 41. All of the Plaintiffs obtained copies of their loan documents. The insurance disclosure form stated that the credit life 'insurance was not required to obtain the loan. Further, the disclosure form stated the purchase price of the credit life insurance. This Court has held that “whether an insured reads the entire insurance policy, the ‘knowledge of its contents would be imputed to them as a matter of law.’ ” Stephens, 850 So.2d at 82 (quoting Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987)). “In Mississippi, a person is charged with knowing the contents of any document that he executes.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 725 (Miss.2002). In Stephens, this Court held:

[A] written contract cannot be varied by prior oral agreements. Moreover, as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible. Finally, a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.

Stephens, 850 So.2d at 83 (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991)). We find that the Plaintiffs’ claims were governed by three-year statute of limitations and the claims accrued at the time the loan documents were executed. See Andrus, 887 So.2d at 180; Stephens, 850 So.2d at 82. As in Andrus and Stephens, the Plaintiffs here were on notice.

¶ 42. All of the claims in the case today were filed almost four or more years after the loan agreements were executed. The most recent loan closing occurred on October 8, 1998, by the Baylouses. The complaint was filed on August 7, 2002, approximately three years and ten months after the closing. Any claims against the Defendants accrued at the time of the execution of the loan documents. Sanderson Farms, 917 So.2d at 789; Andrus, 887 So.2d at 180; Stephens, 850 So.2d at 82. Therefore, all suits were filed after the running of the three-year statute of limitations.

¶ 43. The Plaintiffs argue that the Southern Mortgage employees were their alleged “brokers” or at a minimum the employees should have been looking out for their best interest. Even assuming arguendo that the Southern Mortgage employees were “brokers,” the Plaintiffs filed suit more that three years from the date of closing the loans. After closing on their house loans, the Plaintiffs had no further contact with these representatives. Only one Plaintiff contacted a Defendant to inquire about his credit life insurance. Of the Plaintiffs questioned, none asked any questions about the credit life insurance and some stated that they would never ask about any commission because it was not their business. Furthermore, many Plaintiffs stated that credit life insurance was actually a good idea. The loan documents stated the purchase price of the credit life insurance, stated that the credit life insurance was not required, and had a three-day cancellation provision. None of the Plaintiffs read the loan documents.

¶ 44. In Stephens, this Court applied a two-prong test for fraudulent concealment claims. Miss.Code Ann. § 15 — 1— 67 (Rev.2003) states:

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.

In Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000), this Court held that “[fjraudu-lent concealment of a cause of action tolls its statute of limitations.” This Court in Stephens held “the plaintiffs have a twofold obligation to demonstrate that (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed on their part to discover it.” Stephens, 850 So.2d at 84. See also Andrus, 887 So.2d at 181. In Sanderson, this Court held, in regard to fraudulent concealment claims, that “there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.” Sanderson, 917 So.2d at 790 (citing Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988)); Andrus, 887 So.2d at 181; Stephens, 850 So.2d at 83-84. “Merely alleging that the other side has complete control of [information] simply will not suffice.” Id.

¶ 45. The Plaintiffs did not state that Southern Mortgage made misrepresentations to them after they closed their loans. Most of the testimony indicated that none of the Plaintiffs had conversations with any of the Defendants; therefore, no misrepresentations or subsequent acts of concealment were made by the Defendants. Also, nothing in the deposition testimony indicates that the Defendants prevented the discovery of any alleged claims. Therefore, we find that the first prong of the two-part test set forth in Stephens, that being, some affirmative act or conduct was done and prevented discovery of a claim, was not met. The Defendants did not take any subsequent affirmative actions which were designed to prevent or did prevent discovery of the claims.

¶ 46. As for due diligence, the Plaintiffs stated that they were not aware of the commission rates or that the Southern Mortgage representatives had to sell the Defendants credit life insurance and could not “shop around” for lower insurance. The Plaintiffs claim that Southern Mortgage representatives did not disclose this information to them until 2002. None of the Plaintiffs stated that they made any inquiries about credit life insurance or paid commissions after closing the loans. The Plaintiffs all received copies of the loan documents from Southern Mortgage. Most of the Plaintiffs stated that they did not read the loan documents. All of the Plaintiffs stated that they were not prevented from reading the loan documents. The loan documents stated the terms of the insurance. The loan documents stated that credit life insurance was not required to obtain the loan; the interest rate; a company other than the lender could be the insurer who expected to make a profit from the sale of insurance; the premium payment amount; and the total loan finance amount. None of the Plaintiffs stated that they were precluded from asking any questions. Those Plaintiffs actually questioned about inquiries concerning insurance commissions did not ask about the payment of any insurance commission. None of the Plaintiffs objected to the credit life insurance, commissions, or loan terms in general until the filing of the complaint. The record demonstrates a total lack of due diligence by the Plaintiffs. Accordingly, the issue of the statute of limitations is dispositive of the case, and this Court need not address any other issues raised by the parties.

CONCLUSION

¶ 47. We find that the dispositive issue concerns filing the actions within the statute of limitations. We find that the Plaintiffs’ claims are barred pursuant to Miss. Code Ann. § 15-1-49. Since, there is no proof of fraudulent concealment, the running of the statute of limitations on their causes of action was not tolled. We find that the trial court correctly granted the summary judgment in favor of the Defendants, on the grounds that the claims were barred by the statute of limitations. Accordingly, we affirm the judgment of the Circuit Court of the Second Judicial District of Hinds County.

¶ 48. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P. JJ., CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The Defendants' brief indicates that CitiFi-nancial Mortgage; Associates Life; and American Health and Life are represented on appeal.

      . The Baylouses' interrogatory answer had the same response.

      . The Baylouses’ interrogatory answer had the same response.

      . At one point, Wannis had a conversation with CitiFinacial Mortgage concerning a reduction in payments and the fact that he thought his balance was too high. However, his loan documents contained the financed amount. He did not indicate that CitiFinan-cial Mortgage made a misrepresentation to him about this question.


author: DICKINSON, Justice,

text:
    BACOU-DALLOZ SAFETY, INC. f/k/a Dalloz Safety, Inc. f/k/a WGM Safety Corporation v. Thomas HALL, et al.
    No. 2005-IA-01095-SCT.
    Supreme Court of Mississippi.
    Sept. 7, 2006.

      Alben N. Hopkins, Gulfport, Alben Norris Hopkins, Jr., attorneys for appellant.
    Guy Gladstone Fisher, Gerald Maples, attorneys for appellees.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   DICKINSON, Justice,

for the Court.

¶ 1. This is the appeal of a Jones County Circuit Court Order denying a defendant’s motion to dismiss for failure to serve process within the 120-day service period provided by Rule 4(h) of the Mississippi Rules of Civil Procedure. For the reasons discussed herein, we reverse and render.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Bacou-Dalloz Safety, Inc., is one of 85 defendants sued by 2,779 plaintiffs who allege various silica-related personal injuries. The correct agent for service of process upon Bacou-Dalloz is Corporation Service Company, located at 2711 Center-ville Road, Wilmington, Delaware 19808.

¶ 3. In the plaintiffs’ original complaint filed on September 13, 2002, the agent for service of process for Bacou-Dalloz was incorrectly listed as Corporate Service Company, 1013 Center Road, Wilmington, Delaware 19805. Plaintiffs’ counsel explain that they had successfully served process on Bacou-Dalloz at this address in the past. For reasons we are not told, the complaint and process ended up at CT Corporation System, 1209 Orange Street, Wilmington, Delaware 19801.

¶ 4. On December 10, 2002, CT Corporation System returned the documents and informed plaintiffs’ counsel that it was not the registered agent for Bacou-Dalloz. For reasons not provided in the record, the plaintiffs made no further attempt to serve the original complaint on Bacou-Dalloz.

¶ 5. Thereafter, plaintiffs filed their First Amended Complaint on December 31, 2002, which again incorrectly listed Corporate Service Company, 1013 Center Road, Wilmington, Delaware 19805, as the agent for service of process for Bacou-Dalloz. For reasons not disclosed in the record, plaintiffs never attempted to serve Bacou-Dalloz at any address with the First Amended Complaint.

¶ 6. Nearly fifteen months later, on March 10, 2004, plaintiffs filed a Motion for Leave to File Plaintiffs’ Second Amended Complaint. The motion claimed the amended complaint was necessary, in part, to “correct service information for Defendant ] Dalloz Safety, Inc.” However, the proposed Second Amended Complaint again recited an incorrect address for Bacou-Dalloz’s agent for process, 1013 Center Road, Wilmington, Delaware 19801, although the agent’s name was corrected. The motion was granted, and on May 24, 2004, Bacou-Dalloz was somehow served with the Second Amended Complaint.

¶ 7. On June 22, 2004, Bacou-Dalloz filed its Motion to Dismiss and Answer and Defenses to the plaintiffs’ Second Amended Complaint, asserting it was served with process 499 days after the 120-day service period had expired. The circuit court called up the motion on March 30, 2005. Although plaintiffs’ counsel endeavored to explain why she attempted service of the Original Complaint on an incorrectly named agent for process at its former address, she offered no explanation as to why she did not attempt to serve Bacou-Dalloz with the First Amended Complaint, and she offered no good cause for waiting one year and five months after learning of the failed service to finally serve process on Bacou-Dalloz. Nevertheless, on May 20, 2005, the circuit court entered its order denying Bacou-Dalloz’s Motion to Dismiss. Bacou-Dalloz timely filed its Petition for Interlocutory Appeal, which we granted. See M.R.A.P. 5.

DISCUSSION

¶ 8. Although Bacou-Dalloz frames the issue as three separate considerations, there is but one assignment of error before us on appeal: whether the circuit court erred in denying Bacou-Dalloz’s Motion to Dismiss for failure to serve process within 120 days pursuant to M.R.C.P. 4(h).

¶ 9. The denial of a motion to dismiss presents a question of law, which we review de novo. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). We review any findings of fact made by the circuit court for abuse of discretion. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002).

I. Whether the circuit court erred in denying Bacou-Dalloz’s Motion to Dismiss for failure to serve process within 120 days pursuant to M.R.C.P. 4(h).

¶ 10. Rule 4(h) of the Mississippi Rules of Civil Procedure addresses service of process:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

M.R.C.P. 4(h) (emphasis added). Bacou-Dalloz asserts the circuit court erred by denying its Motion to Dismiss for failure to serve within the 120-day period provided by Rule 4(h). The record indicates plaintiffs attempted service of the Original Complaint on Corporation Service Company at the wrong name and wrong address, although the address was one used by plaintiffs’ counsel in the past to serve Ba-cou-Dalloz. Somehow, another company — CT Corporation System — received Bacou-Dalloz’s service of process, and plaintiffs were informed of this error by letter dated December 10, 2002. Plaintiffs made no attempt to serve Bacou-Dalloz with their First Amended Complaint, filed December 31, 2002. Plaintiffs only served Bacou-Dalloz with the Second Amended Complaint on May 24, 2004, which was 619 days following the filing of the Original Complaint; 499 days after the 120-day period for service of process expired; and one year and five months after plaintiffs learned they had effected service on the wrong agent of process. Under these facts, plaintiffs clearly failed to timely serve Bacou-Dalloz.

¶ 11. When service is not made within 120 days after the filing of the complaint, a plaintiff must show good cause why process was not served within that period, or dismissal of the suit is required. M.R.C.P. 4(h). See also Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1200-01 (Miss.2004); Holmes, 815 So.2d at 1185. Therefore, according to Rule 4(h) and this Court’s precedent, the trial court should have dismissed this action as to Bacou-Dalloz without prejudice unless plaintiffs demonstrated good cause as to why service was not made within the 120-day service period.

¶ 12. In order to establish good cause, plaintiffs “must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Webster v. Webster, 834 So.2d 26, 28 (Miss.2002) (citations omitted). The record indicates plaintiffs attempted service of the original complaint on Bacou-Dalloz through its registered agent for service of process at an incorrect name and incorrect address. Even though they were informed of their mistake by letter dated December 10, 2002, plaintiffs never explain why process was not then reissued for Bacou-Dalloz’s agent for process at its correct address and served during the 120-day period. They likewise fail to explain why they did not attempt to serve process for 499 days following the expiration of the 120-day service period.

¶ 13. Further, this Court has held that, if it appears service cannot be made within the 120-day period, “a diligent plaintiff should file [a motion for additional time to serve process] within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely.” Id. at 29. Plaintiffs did not file the recommended motion for extension of time. Instead, they filed a Motion for Leave to file a Second Amended Complaint and requested the clerk reissue summons on March 8, 2004, which was 442 days after the 120-day period to serve process had expired.

¶ 14. The record shows plaintiffs made only two attempts at service — the first in December 2002 at an incorrect address, and the second on May 24, 2004, successfully serving Bacou-Dalloz. Plaintiffs’ inaction, without adequate explanation, shows a lack of good cause far beyond excusable neglect. Because plaintiffs have failed to show good cause for not timely serving Bacou-Dalloz, dismissal is required.

CONCLUSION

¶ 15. Plaintiffs neither served Bacou-Dalloz within the 120 days for service of process following the filing of the original complaint on September 13, 2002, nor showed good cause for their failure to do so as required by M.R.C.P. 4(h). As a result, the circuit court erred in denying Bacou-Dalloz’s Motion to Dismiss for Failure to Serve Process. For these reasons, we reverse the circuit court’s order denying Bacou-Dalloz’s Motion to Dismiss, and we render judgment here dismissing without prejudice the Second Amended Complaint and this action as to Bacou-Dalloz Safety, Inc.

¶ 16. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., NOT PARTICIPATING.

      . We presume that plaintiffs' counsel had served Corporation Service Company at 1013 Centre Road, Wilmington, Delaware 19805 in the past, but the company had since moved to 2711 Centerville Road, Wilmington, Delaware 19808. However, neither the parties nor the record provides an explanation for the cause of the mistaken address.

      . We presume that Corporation Service Company received the notice after it was forwarded from the 1013 Centre Road address to the correct 2711 Centerville Road address. However, neither the parties nor the record sheds any light on the specifics of the service. We are simply told that Bacou-Dalloz's proper agent for service of process was served on May 24, 2004.


author: WALLER, Presiding Justice,

text:
    Tomas FLORES, M.D. v. Marla ELMER, Individually, and as Parent and Next Friend of Gigi Elmer, a Minor.
    No. 2005-IA-01130-SCT.
    Supreme Court of Mississippi.
    Sept. 7, 2006.

      Stephen G. Peresich, Biloxi, Melinda 0. Johnson, Pascagoula, attorneys for appellant.
    David R. Daniels, attorney for appellee.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This interlocutory appeal involves issues pertaining to the discovery rule as it relates to medical malpractice. Finding that there are genuine issues of fact that remain after reviewing the evidence, we affirm the circuit court’s denial of summary judgment and remand for further proceedings.

¶ 2. Marla Elmer, individually, and as a parent and next friend of Gigi Elmer, a minor, filed a complaint against Tomas R. Flores, M.D., alleging medical malpractice. Dr. Flores filed a motion for summary judgment asking the Hancock County Circuit Court to dismiss the action based on the two-year statute of limitations. The circuit court, denying the motion for summary judgment, found that genuine factual issues existed which precluded a grant of summary judgment. Dr. Flores filed a motion petitioning the circuit court to reconsider its denial of summary judgment based on a newly issued Court of Appeals case, Simpson v. Lovelace, 892 So.2d 284 (Miss.Ct.App.2004). Dr. Flores’s motion was denied, and we then granted him permission to bring this interlocutory appeal. See M.R.A.P. 5.

FACTS

¶ 3. Dr. Flores performed surgery on Gigi Elmer to treat her broken arm. After that initial surgery, Gigi was able to move her thumb and fingers and had normal hand function. Subsequent x-rays showed that Gigi’s bones appeared to be touching at an angle, so Dr. Flores operated again on August 22, 1992, one week following the first surgery. The second surgery was designed to plate the bones together and make certain Gigi’s bones would heal properly. After the second surgery, Gigi was in pain and could barely move her fingers. When she left the hospital, her “thumb and fingers didn’t work.”

¶ 4. Gigi continued to visit Dr. Flores for follow-up visits, during which she regularly expressed concern over the problems she was having with her thumbs and fingers. Dr. Flores continuously assured her that everything was fine and that “these things take time to heal.” Marla Elmer was concerned that Gigi’s arm failed to progress and tried to get Dr. Flores to refer Gigi to a specialist. When Dr. Flores would not help her, Marla secured an appointment with Jefferson Kaye, M.D., at Ochsner Orthopaedic Clinic.

¶ 5. Dr. Kaye performed surgery on Gigi on October 18, 1994. During that surgery, Dr. Kaye discovered that Gigi’s posterior interosseous nerve (PIN) was wrapped around one of the screws that was pinning the plate to the bone. The Elmers filed a medical malpractice lawsuit against Dr. Flores on September 27, 1996, alleging that Dr. Flores negligently implanted the plate. Dr. Flores filed a motion for summary judgment alleging that the Elmers’ complaint was time barred because it was filed after the two-year medical malpractice statute of limitations had expired. The Elmers assert that the discovery rule applies because they were not aware that Dr. Flores was negligent until Dr. Kaye’s surgery and that they acted diligently based on Dr. Flores’s repeated assertions that the recovery process was on track.

¶ 6. The circuit court held that it was unable to say as a matter of law that the malpractice was due to Dr. Flores’s negligence until Dr. Kaye discovered the reason for Gigi’s pain and denied Dr. Flores’s motion for summary judgment. From this ruling, Dr. Flores appeals.

DISCUSSION

¶ 7. The court applies a de novo standard of review when examining a trial court’s grant or denial of summary judgment. All that is needed for a nonmoving party to survive a motion for summary judgment is to demonstrate that a genuine issue of material fact exists. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47 (Miss.2005); Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 81 (Miss.1991); Galloway v. Travelers Ins. Co., 515 So.2d 678, 682 (Miss.1987). The evidence is viewed in the light most favorable to the nonmoving party. McKinley v. Lamar Bank, 919 So.2d 918, 926 (Miss.2005).

I. GENUINE ISSUES OF MATERIAL FACT

¶ 8. Section 15-1-36 of the Mississippi Code provides a two-year statute of limitations for medical malpractice claims. Miss.Code Ann. § 15-1-36 (Rev. 2003). That statute of limitations is, however, subject to a discovery rule. Wright v. Quesnel, 876 So.2d 362, 366 (Miss.2004). The two-year statute does not begin to run until the patient discovers or should have discovered that he has a cause of action. Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986). In other words, “the operative time [for the running of the statute of limitations] is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001). The focus is on the time that the patient discovers, or should have discovered through reasonable diligence, that he or she probably has an actionable injury. Wright, 876 So.2d at 366 (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1001 (Miss.2004)). The discovery rule tolls the statute of limitations until the plaintiff knew or should have known of some negligent conduct, regardless of whether the plaintiff knows with absolute certainty that the conduct was legally negligent. Id.

¶ 9. The discovery rule protects plaintiffs with latent injuries. Wright, 876 So.2d at 366. A latent injury precludes the plaintiff “from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Lowery, 909 So.2d at 50 (quoting Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999)).

¶ 10. A layperson undergoing a surgical procedure trusts in and relies on the instructions, professional expertise and guidance of their physician. Dr. Flores examined Gigi’s hand on eight separate occasions following the surgery. He told her “everything was all right and normal” and “these things don’t happen overnight.” Based on these statements, it is hard to conclude as a matter of law that Gigi did not act diligently by trusting her surgeon’s opinion and waiting over two years before consulting a specialist. It is reasonable to assume that a person in Gigi’s circumstances might rely on the advice of the surgeon and think that the recovery was on-track rather than discovering the source of the alleged malpractice.

¶ 11. Two cases from other states show that it is reasonable for a patient to rely upon his or her physician’s advice: First, in Bums v. Bell, 409 A.2d 614 (D.C.1979), after she underwent a facelift, Burns became concerned that the scars did not disappear and that she experienced numbness and a pins-and-needles sensation around the surgical area. When she stated her concerns on numerous occasions to Dr. Bell, he assured her that these symptoms would improve with time. Incredibly, even though her symptoms did not disappear, Burns underwent another plastic surgery performed by Dr. Bell and referred a friend to Dr. Bell. Burns stated, “Throughout this period of time, I had complete trust in Dr. Bell and that if I would only be patient, everything would turn out to be all right. My response in each instance to Dr. Bell’s assurances was an acquiescence in [his] judgment.” Id. at 614. After suit was filed against him, Dr. Bell moved for summary judgment based on the running of the statute of limitations. Reversing the trial court’s grant of summary judgment, the District of Columbia Court of Appeals held as follows:

[Dr. Bell] contends that [Burns] knew of her injury soon after the operation. It is argued that she could see for herself the condition of her face. This approach overlooks the fact that [Burns] may have relied upon [Dr. Bell] because she herself had no medical expertise and no other accurate way of knowing whether the assurances given her were reasonable. To require a patient to scrutinize to a fine degree the advice given by a treating physician, at the risk of losing his right to legal redress seems unwise. Thus the determination of when [Burns] should have reasonably discovered her injury under the instant circumstances is, in our view, a question of fact and should have been submitted to the trier of fact.

Id. at 617.

¶ 12. The Bums court relied on a Texas case, Fitzpatrick v. Marlowe, 553 S.W.2d 190 (Tex.Civ.App.-Tyler 1977), with remarkably similar facts which involved plastic surgery on the patient’s nose. In Fitzpatrick the court stated as follows:

As to the negligent treatment count, what was necessary for plaintiff to discover was not that her nose had a depression in it and redness, but that the depression and redness were caused by the manner the operation was performed and would not heal.... Under the evidence, we deem that whether she should have discovered [negligence] sooner is a fact issue for the trier of fact to determine from the evidence.

Id. at 195.

¶ 13. Dr. Flores relies on Simpson v. Lovelace, 892 So.2d 284 (Miss.Ct.App. 2004), and Robinson v. Singing River Hospital System, 732 So.2d 204 (Miss.1999), to claim that Gigi’s injury was not latent and the discovery rule should not apply. However, his reliance is misguided because the facts in these cases are substantially different from the instant case. In Robinson, the injured party received second-degree burns by the application of heating packs during a physical therapy session. Id. at 206. Robinson was awake and aware of his injury the day it occurred. Id. at 208. He threatened legal action on the very day the burns occurred. Id. Therefore, the Court concluded that he was put on notice the day the alleged malpractice occurred and his cause of action was time-barred. Id.

¶ 14. Conversely, Gigi Elmer’s PIN nerve was wrapped around a screw implanted in her arm. There were no visible marks or other signs. Though she had pain, she did not know the actual source of that pain until Dr. Kaye found the nerve-wrapped screw. Even Dr. Kaye could not pinpoint the source of Gigi’s problems based on her symptoms alone, he had to surgically operate on her to locate the entrapped nerve.

¶ 15. Simpson is distinguishable because the patient made no attempt to discover the origin of his pain after leg surgery. Simpson attended two surgical follow-up appointments in the two weeks following his surgery, but made no other visits with his surgeon to complain about pain. Simpson, 892 So.2d at 285. Three years later, after observing ulcers and protruding veins in his leg, he asserted that he had suffered pain, swelling, tingling, burning and some numbness in his leg since the surgery. Id. at 286. The Court of Appeals held that because Simpson did nothing to discover his doctor’s negligence, there was “no issue to be resolved by the jury regarding the reasonableness of Simpson’s acts or attempts to discover.” Id. at 288.

¶ 16. Gigi’s eight visits to Dr. Flores with repeated complaints about pain and loss of function in her fingers certainly qualifies as doing “something” to discover the origin of her pain. While the eight visits do not provide a definitive answer as to reasonableness, they do make the issue of due diligence a fact issue to be resolved by the jury. Accordingly, the court did not err in denying summary judgment.

II. FRAUDULENT CONCEALMENT

¶ 17. The Elmers allege that Dr. Flores “concealed or obscured” the actionable injury caused by his own malpractice. “Fraudulent concealment of a cause of action tolls its statute of limitations.” Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000) (quoting Myers v. Guardian Life Ins. Co. of Am,., Inc., 5 F.Supp.2d 423, 431 (N.D.Miss.1998)). Given our disposition of the first issue, there is no need to address this issue.

CONCLUSION

¶ 18. The circuit court did not err in denying summary judgment in this case. Because there are genuine issues of fact that remain after reviewing the evidence as to when the Elmers should have reasonably known that they had a cause of action against Dr. Flores due to the circumstances regarding Gigi’s recovery, the El-mers are entitled to a trial on the merits of their claim. We affirm the circuit court’s denial of Dr. Flores’s motion for summary judgment, and we remand this case to the trial court for further proceedings consistent with this opinion.

¶ 19. AFFIRMED AND REMANDED.

SMITH, C.J., COBB, P.J., DIAZ, EAS-LEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . According to appellant’s written briefs, Gigi saw Dr. Flores as late as April 22, 1994, 21 months after surgery.

      . Dr. Kaye saw Gigi on September 14, 1994. He could not diagnose Gigi based on her symptoms alone, so he ordered a nerve conduction velocity test. His notes disclose that the cause of injury was unclear. He noted "possible muscle adherence, possible tendon adherence, possible muscle or tendon rupture, possible posterior interosseous nerve dysfunction” and "possible surgery for exploration and removal of hardware, possible nerve exploration.” The nerve conduction test revealed evidence of nerve palsy. Dr. Kaye decided surgery was the best option to determine the cause of the palsy.