source: Caselaw Access Project

author: DICKINSON, Justice,

license: Public Domain

text:
    Gary Dean LAMBERT v. STATE of Mississippi.
    No. 1999-CA-00395-SCT.
    Supreme Court of Mississippi.
    Sept. 14, 2006.
    Rehearing Denied Nov. 16, 2006.

      Kristy L. Bennett, Joe M. Ragland, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before COBB, P.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. The indictment alleged the defendant committed a murder during the commission of a burglary and was therefore guilty of capital murder. However, the indictment failed to disclose that the crime the defendant intended to commit after breaking and entering the dwelling was sexual battery. Although the defendant was convicted of simple murder, he now seeks post-conviction relief due to the faulty capital murder indictment. The question presented is whether the deficient capital murder indictment prejudiced the defendant, such that his conviction or sentence was actually adversely affected, thus requiring post-conviction relief. We find that under the facts and circumstances of this case, it did not.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. At 6:30 p.m. on January 15, 1982, Gary Dean Lambert went to Nick’s Ice House to shoot pool and drink. At midnight, Lambert left Nick’s to go to a party, where he smoked marijuana and continued to drink. At 2:30 a.m., he left the party. Realizing he was too intoxicated to continue driving, Lambert pulled into a gas station to call a friend to pick him up. While at the gas station, Lambert saw Bob McClain, whom he had met earlier that night at the party. McClain asked Lambert for a ride, and Lambert agreed to take him home, but he told McClain to drive. Lambert claims he recalls nothing more of the events of that night.

¶ 3. About 9:00 a.m. the next morning, Herschel and Edwin Trigg were informed that something was wrong at their mother’s house. The two discovered the badly-beaten body of their 86-year-old mother, Pearl Lott Trigg, lying in her bed, with Lambert sleeping partially undressed next to her. Lambert’s checkbook was discovered under Mrs. Trigg’s body, and pubic hairs matching the characteristics of Lambert’s hairs were found lodged in Mrs. Trigg’s larynx. An autopsy revealed Mrs. Trigg’s cause of death to be strangulation.

¶ 4. Lambert was indicted for capital murder while engaged in the commission of the crime of burglary. The indictment stated Lambert did

wilfully, unlawfully, feloniously and of his malice aforethought without the authority of law kill and murder Pearl Lott Triggs [sic], a human being, while he, the aforesaid Gary Dean Lambert, was then and there engaged in the commission of the crime of burglary of the dwelling house then and there occupied by the aforesaid Pearl Lott Triggs [sic], contrary to and in violation of section 97-3-19(2)(e) of the Miss.Code of 1972, Ann. as amended.

Although the indictment charged that burglary was the felony which elevated the crime to capital murder, it did not specify the underlying offense that constituted the “intended crime” element of the burglary.

¶ 5. On August 6, 1982, Lambert was convicted of simple murder and sentenced to life imprisonment. His conviction was affirmed by this Court on October 31, 1984. Lambert v. State, 462 So.2d 308, 317 (Miss.1984) (hereinafter Lambert I). For several years thereafter, Lambert unsuccessfully pursued habeas corpus relief in the federal courts. The United States Dis-triet Court’s denial of Lambert’s request for habeas relief was affirmed by the United States Court of Appeals for the Fifth Circuit. Lambert v. Miss. Dep’t of Corrs., 974 F.2d 1334 (5th Cir.1992). The United States Supreme Court later denied Lambert’s petition for certiorari. Lambert v. Miss. Dep’t of Corrs., 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993).

¶ 6. On October 13,1997, ten days before this Court handed down its decision in State v. Berryhill, 703 So.2d 250 (Miss. 1997), Lambert filed a pro se petition for post-conviction relief, which this Court denied as time-barred pursuant to Miss.Code Ann. Section 99-39-5(2) (Rev.2000).

¶ 7. In February 1998, with the assistance of counsel, Lambert filed another petition for post-conviction relief urging us to recognize Berryhill as an intervening decision that entitled him to present his post-conviction relief claim to the trial court. On July 2, 1998, this Court granted Lambert’s motion and allowed him to proceed in the trial court with his application for post-conviction relief.

¶ 8. On November 18, 1998, Lambert filed his petition for post-conviction relief in the Circuit Court of Covington County, Mississippi. The State opposed the motion on the grounds that the three-year statute of limitations for presenting the motion had expired. The trial court refused to recognize Berryhill as an intervening decision, and it denied Lambert’s petition as time-barred. Lambert appealed, raising numerous issues including a demand for DNA testing of the pubic hairs found in Mrs. Trigg’s larynx.

¶ 9. On January 11, 2001, without deciding the question of whether Berryhill qualified as an intervening decision, this Court remanded Lambert’s case to the trial court for DNA testing of the pubic hairs taken from Mrs. Trigg’s throat. Lambert v. State, 777 So.2d 45, 49 (Miss.2001). We deferred addressing the other issues raised by Lambert, stating, “Lambert may wish to bring these matters before this Court or a lower court at a later time, dependent upon the proof obtained pursuant to our holding today.” Id.

¶ 10. The DNA analysis, completed in December 2002, showed Lambert was the source of the pubic hairs found in Mrs. Trigg’s larynx. In January and February 2003, and in January 2004, Lambert filed motions requesting permission to file a supplemental brief in this matter. These requests were denied.

¶ 11. In October 2005, Lambert filed another petition for post-conviction relief. On December 15, 2005, this Court entered an order, stating:

the Court finds that the issues raised in Lambert’s direct appeal should be finally decided by this Court. The Court further finds that the mandate in this matter was issued improperly and it should be recalled. The Court finds that the Orders entered by this Court on April 29, 2003 and January 23, 2004 should be vacated. The Court further finds that the parties in this matter should file supplemental briefs regarding the remaining issues in this appeal.

¶ 12. There is but one issue for our consideration: whether the trial court erred in holding that State v. Berryhill was not an intervening decision which would have adversely affected the outcome of Lambert’s conviction or sentence.

DISCUSSION

¶ 13. Pursuant to Miss.Code Ann. Section 99-39-5(2), a motion for post-conviction relief “shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi.... ” This Court decided Lambert’s direct appeal in 1984, and Lambert first filed for post-conviction relief in 1997. Therefore, unless an exception to the time-limit applies, Lambert’s motion for post-conviction relief must be denied as time-barred. The three-year statute of limitations does not bar post-conviction relief where the prisoner can demonstrate “there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence.... ” Miss.Code Ann. § 99-39-5(2).

¶ 14. Finding that Lambert failed to meet his burden of proving by a preponderance of the evidence that this exception to the time-bar applied, the trial court denied his petition. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

Whether the trial court erred in holding that State v. Berryhill was not an intervening decision which would have adversely affected the outcome of Lambert’s conviction or sentence.

State v. Berryhill

¶ 15. In Berryhill, this Court considered whether a capital murder indictment predicated upon the underlying crime of burglary must specifically disclose the crime the defendant intended to commit after breaking and entering the dwelling. 703 So.2d at 251. We held “that such capital murder indictments must contain an allegation of the specific criminal intent that constitutes an element of the burglary.” Id. at 251-52.

¶ 16. In Berryhill, the defendant was indicted for capital murder while engaged in the commission of a burglary. Id. at 252. Prior to trial, Berryhill moved to quash the indictment because it did not specify the underlying offense comprising an element of the charged burglary. Id. At the direction of the court, the State advised Berryhill that the felony underlying the burglary count was intent to commit assault. Id. Four months later, the State informed Berryhill that it might attempt to prove burglary based on kidnap-ing or attempt to commit kidnaping, in addition to the intent to commit an assault. Id.

¶ 17. The trial court ultimately quashed the capital portion of the indictment because it failed to disclose the crime Berry-hill intended to commit after breaking and entering the dwelling. Id. However, the State was permitted to proceed on simple murder. Id.

¶ 18. Thereafter, Berryhill pled guilty to simple murder and was sentenced to life without parole. Id. The State appealed the trial court’s ruling on the capital murder indictment, seeking a ruling from this Court on the requirements for capital murder indictments where the underlying felony is burglary. Id. at 252-53.

¶ 19. The Berryhill Court began its analysis by discussing this Court’s Lambert I opinion, wherein the four justices comprising the plurality declined to articulate a rule on whether capital murder indictments should disclose the intended crime of the burglary. Berryhill, 703 So.2d at 254 (citing Lambert I, 462 So.2d at 311). Since Lambert was only convicted of simple murder, there was no need for the Court to determine the sufficiency of his capital murder indictment, and the Court refused to comment on whether the indictment would have been fatally defective had Lambert been convicted of capital murder. Berryhill, 703 So.2d at 254-55 (citing Lambert I, 462 So.2d at 311).

¶ 20. The Berryhill Court then considered Justice Dan M. Lee’s dissent in Lambert I, which pointed out that neither the defense nor the court knew the State was going to rely on the crime of sexual battery as the basis of the burglary charge. Berryhill, 703 So.2d at 255 (citing Lambert I, 462 So.2d at 319 (Dan M. Lee, J., dissenting)). The dissent concluded that “since the indictment provides the basis of the notice to the defendant of the crime for which he is to be tried, the failure to be informed of the nature of the crime underlying the burglary was tantamount to the failure to allow a defendant to prepare a defense.” Id.

¶ 21. Following the reasoning advanced by the Lambert I: dissent, the Berryhill Court held that “capital murder .indictments that are predicated on burglary are required to state the underlying offense to the burglary.” Berryhill, 703 So.2d at 255. The Court was concerned with giving notice to a defendant of the charges against him and providing him with an opportunity to prepare an effective defense. Id. at 255-56. .According to the Court, a defendant like Berryhill, who is indicted without notice of the crime the State alleges he intended to commit during the burglary, could be forced to guess the theories the State might present at trial and prepare defenses against all of them. Id. at 256. The Court noted, “[s]uch ‘trial by ambush’ is at odds with this Court’s jurisprudence on the need for an indictment to give enough notice for a defendant to prepare a defense.” Id. Accordingly, the Court affirmed the trial court’s decision to quash the capital portion of Berryhill’s indictment. Id. at 258.

The trial court’s findings

¶ 22. Here, the trial court concluded Berryhill was not an intervening decision that would have adversely affected Lambert’s conviction or sentence. Thus, it concluded that the Section 99-39-5(2) time-bar applied.

¶ 23. The trial court rejected Lambert’s interpretation of Berryhill. It acknowledged that Berryhill stood for the proposition “that a capital murder indictment in which the underlying felony is burglary must also state the underlying crime for which the breaking and entering occurred.” However, the trial court noted the Berryhill Court did not reverse a conviction for simple murder because of deficiencies in the indictment. That issue was not before the Berryhill Court, because the defendant pled guilty to murder. The Court’s holding that capital murder indictments predicated on burglary must specify the underlying offense could not have actually adversely affected Lambert’s case because Lambert was never convicted of capital murder. He was found guilty of simple murder, a conviction unrelated to the burglary charge, regardless of the underlying intended crime.

Berryhill’s effect on Lambert’s case

¶24. In Berryhill, the capital murder portion of the defendant’s indictment was held deficient because it did not specify the crime the defendant intended to commit after breaking and entering the dwelling. However, Lambert must do more than point to a holding in order to prevail on his petition for post-conviction relief. Under Section 99-39-5(2), the Court must also consider whether the decision in Berryhill would have “actually adversely, affected the outcome of [Lambert’s] conviction or sentence.”

1. The capital murder portion of Lambert’s indictment

¶ 25. Lambert acknowledges the Berryhill Court did not specifically hold that a capital murder indictment which fails to specify the intended crime of the burglary charge is void where the defendant is only convicted of murder. However, Lambert argues that because the defendant in Berryhill pled guilty to murder, the Court had no reason to address the issue.

¶ 26. According to the State, Berryhill stands for the proposition that a capital murder indictment which is insufficient to charge capital murder can still support a conviction of murder less than capital. In Berryhill, the defendant was convicted of simple murder after entering a guilty plea, an appeal was taken, and the appeal left Berryhill’s murder conviction intact. Thus, the State claims Berryhill could not have actually adversely affected Lambert’s conviction for simple murder or his sentence.

¶ 27. Additionally, the specific wording of Lambert’s indictment survives any application of Berryhill. The first portion of Lambert’s indictment, standing alone, sufficiently charges him with simple murder. Miss.Code Ann. Section 99-7-37 states that an indictment for simple murder is sufficient if it charges “that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.” Lambert’s indictment charged that he “wilfully, unlawfully, feloniously and of his malice aforethought kill and murder Pearl Lott Triggs [sic].... ”

¶ 28. The Court in Berryhill held that the trial court correctly quashed the defendant’s capital murder indictment. Had Berryhill been controlling precedent at the time of Lambert’s trial, that case would only have required the trial court to quash the capital murder portion of his indictment. Simply stated, we find that Berry-hill does not require the reversal of a conviction or sentence obtained under the non-capital portion of an indictment. Based on the holding of Berryhill alone, we cannot consider it an intervening decision that would have actually adversely affected the outcome of Lambert’s conviction or sentence.

2. Lack of notice and corresponding prejudice

¶ 29. Bolstered by language from Berryhill, Lambert argues that he was not given sufficient notice of the charges against him and thus could not prepare an effective defense. Lambert claims he did not know the State would rely on sexual battery as the intended crime of the burglary and, as such, he was unable to present an effective defense to the charges against him as a whole.

¶ 30. Lambert points to this passage in Justice Dan M. Lee’s dissent in Lambert I as demonstrating Lambert’s lack of notice of the sexual battery offense:

It is clear from the record that neither the defense counsel nor the trial judge knew that the state would be relying on sexual battery as the underlying crime for the allegation of burglary. This is evidence from a reading of a portion of the record which follows the defense counsel’s argument regarding a demurrer to the indictment. There the defense counsel argued that the simple breaking and entering into the house of Mrs. Triggs [sic] was not a burglary and that it could not be an underlying felony. At that point the district attorney interjected with the following which makes it clear that neither the defense nor the court knew that the prosecution was going to be relying on sexual battery as an underlying offense:
BY MR. EVANS:
Judge,. I know you don’t want to hear arguments now, but I want to point out, for the sake of the record, that Mr. Buckley has overlooked the elements of the crime of sexual battery altogether.
BY MR. BUCKLEY:
What is the — I don’t understand the—
BY THE COURT:
Well, he’s not charged with sexual battery. He’s charged with burglary, isn’t he?
BY MR. EVANS:
Yes, sir, burglary with the intent to commit sexual battery. Burglary, which is the breaking and entering with the intent to commit any crime.
BY THE COURT:
The motion will be overruled, but let me have that indictment, please. (BRIEF PAUSE) Will you approach the bench?
(Whereupon, an off-the-record discussion was had by Court and Counsel at the bench with the Defendant present.)
While admittedly the jury failed to find Lambert guilty of capital murder, it is difficult to imagine that the surprise to the defense and the prosecution’s attempt to prove sexual battery had no impact on the jury’s ultimate conclusion.

Lambert I, 462 So.2d at 319-20 (Dan M. Lee, J., dissenting). In our view, neither this vague exchange nor the information provided to us by the parties in this case leads to the conclusion that Lambert was subjected to the “trial by ambush” tactics criticized in Berryhill.

¶ 31. Lambert also relies on a bold statement from Justice Dan M. Lee’s dissent that “[djuring the course of the trial the state was allowed to introduce evidence of the sexual battery. Because Lambert was not charged with sexual battery, the introduction of that evidence was clearly error.” Id. at 320 (Dan M. Lee, J., dissenting). However, neither that dissent nor Lambert explains what the improper evidence might be.

¶ 32. It is certainly plausible that evidence relevant to the sexual battery offense would also be relevant to the attacker’s possible motive and the identification of Lambert as Mrs. Trigg’s murderer. Lambert’s only example of allegedly improper evidence admitted by the trial court was select testimony by serologist Jonette Gothard, who stated that she tested Mrs. Trigg’s body for spermatozoa and seminal fluid using a sexual assault kit, and that she tested Mrs. Trigg’s “mouth, her vaginal vault and ... [her] anus.” Lambert claims that had he known the State intended to introduce this evidence, he would have moved to exclude all testimony concerning the sexual battery.

¶ 33. We note that Lambert raises no complaint of discovery violations. Absent some discovery violation, we find no credibility to the theory that Lambert would not have known about this evidence or recognized its value to the State. Autopsies, tests, and other evidence relating to a victim’s injuries are often discussed during trial, and Lambert never explains why this evidence was so surprising that it served to prejudice his defense.

¶ 34. Lambert bears the burden of “proof by preponderance of the evidence” that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989) (citing Miss.Code Ann § 99-39-23(7)). Lambert simply does not carry his burden. He claims, without explanation, that he did not know the State would attempt to show he committed a sexual battery. He argues that he would have moved to exclude certain evidence of the sexual battery, but he never describes which evidence would have been excluded in a prosecution for simple murder. In fact, the pubic hairs found at the scene, evidence criticized by Justice Dan M. Lee’s dissent in Lambert I before the hairs were proven by DNA analysis to belong to Lambert, was. significant in identifying Mrs. Trigg’s attacker, and thus relevant to more than just the alleged sexual battery. See Miss. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts may be admissible for “purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). As for testimony about the sexual assault kit used on Mrs. Trigg’s body and the resulting findings, evidence of sexual assault may be admitted even when unrelated to the ultimate cause of death. See, e.g., Thorson v. State, 895 So.2d 85, 96, 103 (Miss.2004).

¶ 35. Lambert argues that because his indictment did not inform him that the underlying “intended crime” was sexual battery, his trial was inherently unfair. However, in order to prevail on his petition for post-conviction relief, Lambert must prove by a preponderance of the evidence that he was prejudiced by evidence that should have been excluded in a simple murder trial. Lambert points to no such evidence.

¶ 36. Lambert finally argues that “once the concept that Lambert penetrated Mrs. Triggs [sic] mouth and throat with his private parts was implanted in the jurors’ minds, any chance that Lambert might have received a fair trial was obliterated.” However, the State points out that Lambert was convicted of murder less than capital, negating any inference that he suffered prejudice. Clearly, Lambert defended himself admirably because the jury did not find him guilty of the underlying burglary felony, and thus they did not convict him of capital murder. His simple murder conviction was completely unrelated to the burglary charge, no matter the underlying offense, so he cannot reasonably claim prejudice to his defense.

¶ 37. Had Berryhill been the law when Lambert was tried, the trial court would have quashed the portion of the indictment charging him with capital murder. Berry-hill does not support a finding that Lambert’s indictment, in its entirety, was void or voidable. Given Lambert’s failure to point to any tainted evidence or demonstrate with any specificity prejudice suffered, the trial court’s finding that Lambert did not carry his burden of proof with respect to the Section 99-39-5(2) time-bar exception was not clearly erroneous. Lambert has not shown by a preponderance of the evidence that his conviction or sentence would have been different had Berryhill been controlling precedent when he was tried, so Lambert’s petition for post-conviction relief was properly denied by the trial court.

CONCLUSION

¶ 38. Because Lambert has not established any exception to the three-year statute of limitations for his post-conviction relief petition, the trial court correctly denied that petition as time-barred. For the reasons herein, we affirm the trial court’s denial of Lambert’s petition for post-conviction relief.

¶ 39. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., NOT PARTICIPATING.

      . The crime of burglary requires the breaking and entering of a dwelling with the intent to commit some crime therein. Miss.Code Ann. § 97-17-23 (Rev.2006).

      . The Benyhill Court held that capital murder indictments predicated on the underlying felony of burglary must specifically name the intended crime that comprised an element of the burglary charge. 703 So.2d at 255.

      . Lambert does not raise two of the issues from his original appeal of the trial court's denial of his motion for post-conviction relief. As such, his claims for relief based on Ricky Cook's statement and ineffective assistance of counsel are procedurally barred. Nevertheless, we would affirm the trial court’s denial of relief on both these issues.

      . Lambert's conviction and sentence were affirmed by this Court in a 4-4 decision. Lambert I, 462 So.2d at 317.

      . While Justice James L. Robertson agreed with this portion of Justice Dan M. Lee’s dissent, he also agreed with the plurality inasmuch as Lambert was only convicted of a simple murder charge, and that crime was sufficiently alleged in the indictment. Berryhill, 703 So.2d at 255 (citing Lambert I, 462 So.2d at 322-23 (Robertson, J., concurring in part and dissenting in part)).


author: RANDOLPH, Justice, EASLEY, Justice,

text:
    Terry L. BULLARD v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA.
    No. 2005-CA-00849-SCT.
    Supreme Court of Mississippi.
    Nov. 2, 2006.

      Rachel Marie Pierce, William M. Beasley, Tupelo, attorneys for appellant.
    Steven H. Begley, Ridgeland, James R. Carroll, David S. Clancy, Kara E. Fay, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. John W. Prather, M.D., and his wife Barbara Prather, (collectively “the Prath-ers”), filed suit against Terry L. Bullard (“Bullard”) and The Guardian Life Insurance Company of America (“Guardian”) on December 15, 2000, about their 1990 purchase of a Guardian life insurance policy. Bullard filed a cross-claim against Guardian, alleging Guardian induced him to sell the Prathers a life insurance policy based upon false and misleading sales presentations, policy illustrations, and other marketing and sales material.

¶ 2. Less than a year after filing suit, the Prathers settled the lawsuit with Bullard and Guardian, and a judgment of dismissal with prejudice was entered on December 18, 2002. Subsequently, Guardian moved for summary judgment on Bullard’s cross-claim, which the trial court granted on the basis that Bullard’s claims were barred by the statute of limitations.

FACTS AND PROCEDURAL HISTORY

¶ 3. On December 15, 2000, the Prath-ers, sued Bullard and Guardian regarding them 1990 purchase of a Guardian life insurance policy. The Prathers alleged that Bullard represented to them that the “policy would require a ‘single premium’ payment of $96,132 which would carry the policy for their lives.” The Prathers further alleged that, at the time of the sale, Bullard and Guardian concealed information and misrepresented the terms of the policy, including the interest sensitive nature of the payment plan and the fact that the premiums required for the policy could change, depending on the dividend scale of Guardian.

¶ 4. After the Prathers were notified that additional premiums would be due on this policy, the Prathers filed suit. The Prathers asserted claims of fraud, fraudulent concealment, misrepresentation, negligence, conspiracy, breach of fiduciary duty, and breach of duty of good faith and fair dealing. Bullard filed a responsive pleading, specifically denying all charges of fraud, misrepresentation, fraudulent concealment, and fraudulent inducement. Bullard moved for and was granted leave to file a cross-claim against Guardian. Bullard filed his cross-claim on February 5, 2002, alleging that Guardian induced him to sell the Prathers a life insurance policy based upon false and misleading sales presentations, policy illustrations, and other marketing and sales material. Bullard alleged that he was damaged as the result of the lawsuit and the allegations made against him.

¶ 5. Guardian then moved for summary judgment on Bullard’s cross-claim. The trial court granted Guardian’s motion for summary judgment, stating Bullard’s claims were barred by the three-year statute of limitations. Bullard now appeals to this Court raising two issues for this Court to consider:

I. Whether the trial court erred in holding that the statute of limitations barred Bullard’s claims.

II. Whether the statute of limitations was tolled by fraudulent concealment.

ANALYSIS

¶ 6. This Court reviews grants of summary judgment under the de novo standard. Stephens v. Equitable Life Assurance Co., 850 So.2d 78, 81 (Miss.2003); Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136 (Miss.1998). Pursuant to Mississippi Rule of Civil Procedure 56, summary judgment is appropriate when the non-moving party has failed “to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996).

I. Whether the trial court erred in holding that the statute of limitations barred Bullard’s claims.

¶ 7. Bullard argues the trial court erred in holding that the statute of limitations began to run at the time Bullard sold the insurance policy to the Prathers. Miss.Code Ann. Section 15 — 1—49 states, 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.”

¶ 8. Bullard contends that his cause of action did not accrue until 2000 when he first learned of Guardian’s alleged fraud and dishonesty. In his amended cross-claim against Guardian, Bullard averred damage to his reputation after the Prath-ers filed suit and that it “appeared to the community that Guardian’s ‘vanishing premium’ concept caused him to betray his policyholders.” Guardian argues that Bul-lard’s claims based on Guardian’s alleged fraud began to run in 1990 upon completion of the sale of insurance to the Prath-ers that was purportedly induced by the alleged false representations.

¶ 9. This Court finds that in 1990 Bul-lard was without a cause of action, if as he claims he had no knowledge of being involved in an alleged fraudulent scheme, but more importantly, because he had suffered no damage. In the absence of damage, no litigable event arose. Bullard’s cause of action against Guardian did not accrue or occur pursuant to Miss.Code Ann. Section 15-1-49(1) until the Prathers filed suit against him in 2000. As Bul-lard’s claim against Guardian did not accrue until 2000, Bullard timely filed a cross-elaim in 2002, within the applicable statute of limitations.

¶ 10. Bullard’s cross-claim reads, “[t]he acts of the plaintiffs in bringing this lawsuit against him have injured him and damaged his professional standing, reputation, character, and earning capacity, and he has suffered anxiety, embarrassment, worry, mental and emotional distress and he is entitled to actual damages in an amount to be determined by a jury.” Bul-lard also seeks damages for the attorney’s fees, which he would not have incurred, but for the suit filed by the Prathers. Bullard claims to have had no knowledge of the alleged fraudulent concept of Guardian preceding the filing of the lawsuit against him.

¶ 11. The basic elements necessary to state any tort claim are duty, breach of duty, causation between the breach of the duty and the injury, and actual damage. See City of Greenville v. Jones, 925 So.2d 106, 109 (Miss.2006); Montgomery v. Woolbright, 904 So.2d 1027, 1029 (Miss.2004). This Court has held that, “a cause of action ‘accrues’ when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943). Bullard’s -claim did not accrue until 2000, when knowledge of breach and actual damage occurred, after the Prathers made allegations against him. Even if Bullard had knowledge in 1990, which he denies, the outcome would be no different, for without injury, no action lies.

¶ 12. The circuit court erred in granting Guardian’s motion for summary judgment, as Bullard’s cause of action did not arise when the policy was sold. Based on the record, we cannot say Bullard had a cause of action when the policy was sold, nor can we say he was or should have been aware of the fraud allegedly committed by Guardian upon him and the Prathers. This is analogous to our holding in PPG Architectural Finishes, Inc. v. Lowery, a personal injury case in which we held, “it is well-established that prescription does not run against one who has neither actual or constructive notice of the facts that would entitle him to bring an action.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005) (quoting Sweeney v. Preston, 642 So.2d 332, 334 (Miss.1994)).

¶ 13. Bullard claims to have learned of Guardian’s fraud and suffered damage to his reputation in 2000. The dissent contends that Bullard should have brought suit within three years of 1990. This contention would require Bullard to presage that the Prathers would file suit against him and cause him damage. Such a claim for prospective or possible damages is not recognized by this state. See PPG Architectural Finishes v. Lowery, 909 So.2d 47; Prescott v. Leaf River Forest Prods., Inc., 740 So.2d 301 (Miss.1999); Staheli v. Smith, 548 So.2d 1299 (Miss.1989). We only have to ask ourselves if Bullard had brought suit in 1993, and no damage had yet occurred or accrued, could Bullard have successfully survived a Rule 12(b)(6) motion? See M.R.C.P. 12(b)(6). A reasoned analysis can result in only one conclusion: such a claim then could not survive.

¶ 14. As Issue I is dispositive, the Court finds Issue II to be moot.

CONCLUSION

¶ 15. Bullard did not have a cause of action against Guardian until 2000. Therefore, Bullard filed his claim within the statute of limitations. Accordingly, we reverse the circuit court’s judgment and remand this case to that court for further proceedings consistent with this opinion.

¶ 16. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J„ CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

EASLEY, Justice,

Dissenting.

¶ 17. Today, the majority effectively overrules a long line of this Court’s cases and extends the time the statute of limitations begins to run in cases that allege fraud and deceit. Here, the majority extends the statute of limitations to allow a suit against Guardian to proceed more than ten years after the insurance policy was sold, despite the fact that the alleged fraud by Guardian occurred in 1990. Instead of holding that the statute of limitations began to run from the completion of the sale of the insurance in 1990 that was allegedly based on false representations, the majority adopts the position that the statute of limitations did not begin to run until Bullard was allegedly “damaged” by the alleged fraud in 2000 when his reputation was allegedly tainted by the Prathers in 2000. The argument advanced by Bul-lard, and adopted by the majority, is more appropriate for a claim of alleged defamation rather than a claim of alleged fraudulent inducement against Guardian.

¶ 18. The majority’s holding contradicts this Court’s holdings in Sanderson Farms, Inc. v. Ballard, 917 So.2d 783, 789 (Miss. 2005); Andrus v. Ellis, 887 So.2d 175, 180-81 (Miss.2004); Stephens v. Equitable Life Assurance Co., 850 So.2d 78, 81-82 (Miss.2003); Dunn v. Dent, 169 Miss. 574, 153 So. 798, 798 (1934), which established that the three-year statute of limitations for alleged claims of fraud and fraudulent inducement begins to run after the completion of the sale of the insurance policy, or the contract was signed, unless tolled by the defendant’s acts of fraudulent concealment. Based on our decision today, in all pending cases involving the question of alleged fraud, including claims of fraudulent inducement to enter into insurance policies with alleged vanishing premiums or dividend stabilization reserve (DSR), the three-year period of statute of limitations will not begin to run from when the policy was sold, as previously held by this Court. Instead, based on the majority’s logic, the statute of limitations will now begin to run when the plaintiff was allegedly “damaged.”

¶ 19. Given this Court’s precedents and the facts in this appeal, the only logical conclusion that can be reached is that the trial court correctly determined that Bul-lard’s claims were barred by the three-year statute of limitations which began to run when the policy was sold in 1990. The Prathers did not file suit against Bullard and Guardian until ten years later in 2000; Bullard cross-claimed against Guardian claiming that Guardian induced him to sell the Prathers a life insurance policy based upon false and misleading sales presentations, policy illustrations, and other marketing and sales material.

¶ 20. I must respectfully dissent from the majority’s reasoning that Bullard is not barred by statute of limitations from maintaining his action against Guardian. Therefore, I would affirm the trial court’s grant of summary judgment in favor of Guardian as the three-year statute of limitations had long expired since the insurance policy was sold in 1990. As such, I am compelled to write separately to address the issues of statute of limitations and fraudulent concealment raised by the parties on appeal applying this Court’s precedent previously mentioned above.

I. Statute of Limitations

¶ 21. Bullard argues that the trial court erred in holding that the statute of limitations began to run, under Miss.Code Ann. § 15 — 1—49, at the time Bullard sold the insurance policy to the Prathers. Specifically, Miss.Code Ann. § 15-1^19 states:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered the injury.

¶ 22. Bullard contends that his cause of action did not accrue until 2000 when he learned of Guardian’s alleged fraud and dishonesty. Guardian argues that Bul-lard’s claims based on Guardian’s alleged fraud began to run in 1990 upon completion of the sale of insurance to the Prath-ers that was purportedly induced by the alleged false representations.

¶ 23. 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. Under Mississippi law, the “right of action for such deceit accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud ... unless the grantor ‘fraudulently conceal[s] the cause of action from the knowledge of the person entitled thereto.’ ” Dunn, 153 So. at 798. More recently, in Sanderson Farms, 917 So.2d at 789, this Court held that 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. See also Stephens, 850 So.2d at 81.

¶ 24. Within his amended cross-claim, Bullard states that Guardian induced him to sell to the Prathers “a life insurance policy based on the false and misleading sales presentations, policy illustrations and other marketing and sales material, all unknown to Bullard, and Bullard was injured and damaged by being caused to mislead the Prathers about their premiums, dividends, policies, and/or other aspects of the insurance, the costs and benefits of said policies, which were known to Guardian, but unknown to Bullard.” Thus, applying current Mississippi law to Bul-lard’s claims of fraud and misrepresentation, his cause of action accrued upon completion of the sale of the policy to the Prathers. Mississippi law concerning an action for fraud or misrepresentation does not allow for accrual of a claim based upon discovery of damages, but only when the sale induced by the fraud is complete.

¶ 25. In this case, Bullard sold the policy to the Prathers in 1990 and any claim he had concerning fraud or misrepresentation accrued at that time and not in 2000 when he discovered his alleged damages. Therefore, using 1990 as the year Bullard’s cause of action accrued, under Miss.Code Ann. § 15-1-49(1), he had three years from 1990 to file a claim against Guardian for fraud and/or misrepresentation. Furthermore, Bullard’s claim did not involve a latent injury or disease under Miss.Code Ann. § 15-1-49(2); and therefore, the discovery element of Miss.Code Ann. § 15-1-49(2) does not apply. Based on this analysis of Bullard’s claims, the trial court did not err in holding that the statute of limitations barred Bullard’s cause of action.

II. Fraudulent Concealment

¶ 26. Bullard contends that even if the Court holds that his cause of action did accrue when he sold the policy to the Prathers, his claims are nevertheless timely because the running of the statute of limitations was tolled by the Guardian’s fraudulent concealment.

¶ 27. The Mississippi Legislature codified the circumstances under which the statute of limitations may be tolled when a claim of fraudulent concealment is made. Specifically, Miss.Code Ann. § 15-1-67 provides that “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.” This Court has been called upon on numerous occasions to interpret the statute as drafted by the Legislature. In order to decipher whether or not Bul-lard is entitled to relief on this claim, our prior decisions must be reviewed and analyzed.

¶ 28. 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.

¶29. In Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000), this Court held that “[fraudulent concealment of a cause of action tolls its statute of limitations.” This Court in Stephens held “the plaintiffs have a two-fold 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.

¶ 30. In Sanderson Farms, 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 Farms, 917 So.2d at 790 (citing Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988)); see also Andrus, 887 So.2d at 181; Stephens, 850 So.2d at 83-84.

¶ 31. “Merely alleging that the other side has complete control of [information] simply will not suffice.” Sanderson Farms, 917 So.2d at 790. This Court has specifically stated that it requires “there must be some subsequent affirmative act by the defendant which was designed to prevent and which did prevent discovery of the claim” to toll the running of the statute of limitations under the doctrine of fraudulent concealment. Andrus, 887 So.2d at 181 (citing Stephens, 850 So.2d at 83-84).

¶ 32. Accordingly, Bullard must first show a subsequent affirmative act by Guardian, “which was designed to prevent and which did prevent discovery of the claims.” Second, Bullard must, prove that he acted with due diligence in attempting to discover the factual basis for his claims and was unable to do so. Andrus, 887 So.2d at 181; see also Sanderson Farms, 917 So.2d at 790. Bullard asserts that “as a part of his cross-claims, he has alleged and can prove, that Guardian established a dividend stabilization reserve.”

¶ 33. He further states that “the effect of that reserve was to cause the dividends of the company to be higher in 1988 and 1989 than they otherwise would have been. The illustration provided to him and to the Prathers was based on the company’s dividends, which were artificially inflated by this ‘dividend stabilization reserve’(DSR).”

¶ 34. Bullard’s fraudulent concealment argument is problematic. Bullard has not offered or proven any subsequent affirmative act of fraudulent concealment to toll the statute of limitations. Bullard has not asserted that Guardian committed an affirmative act of concealment. Thus, Bullard has failed to satisfy the first prong to sustain a fraudulent concealment claim.

¶ 35. The next question that must be addressed is whether Bullard satisfied the second prong of the requirements necessary to prove a fraudulent concealment claim-due diligence. Bullard must present evidence to this Court that he exercised due diligence to discover the factual basis of his claims. This also poses a problem for Bullard as he cites to no evidence that he acted with due diligence to discover the factual basis for his claims.

¶ 36. Bullard failed to present evidence that he took any action to obtain the allegedly concealed information concerning the DSR and the sustainability of dividends. Ironically, Bullard also conceded that he was a “passive” participant during the sales process. He also admitted that he read about the DSR in a Forbes article which he sent to the Prathers before they purchased the policy. However, Bullard admitted that he did not ask Mark Pace, a Guardian agent with whom he worked, or anyone else at Guardian, for more information about the DSR.

¶ 37. Finally, Bullard testified that by April 1998, he knew that the Prathers’ policy was not performing in accordance with the original illustrations and that additional premiums would be required. However, Bullard did not seek to investigate this matter. Under the current set of facts, Bullard has not established that he exercised due diligence to discover his claims. See Andrus, 887 So.2d at 181; Stephens, 850 So.2d at 84. Therefore, the three-year statute of limitations is not tolled pursuant to Miss.Code Ann. § 15 — 1— 67.

¶38. For the foregoing reasons, the three-year statute of limitations bars Bul-lard’s action. The trial court got it exactly right in granting Guardian’s motion for summary judgment. Accordingly, I would affirm the judgment of the trial court granting summary judgment in favor of The Guardian Life Insurance Company of America.

      . While not binding as authority, the United States Court of Appeals for the Fifth Circuit has addressed what is required to toll the statute of limitations under the doctrine of fraudulent concealment: "[I]n Ross v. Citifinancial, Inc., 344 F.3d 458, 464 (5th Cir.2003), we held that Mississippi law is in fact well settled with respect to this issue, stating that 'Mississippi law is unambiguous: Plaintiffs must prove a subsequent affirmative act of fraudulent concealment to toll the limitations.’ " Liddell v. First Family Fin. Servs., 146 Fed.Appx. 748, 751 (5th Cir.2005).
      Further, in Jones v. Life of South Ins. Corp., 2006 WL 21347, 2006 U.S. Dist. LEXIS 1414 (S.D.Miss. Jan. 4, 2006), the United States District Court for the Southern District of Mississippi recently addressed the issue of fraudulent concealment and applied the Fifth Circuit's holding in Liddell, stating "under Mississippi law, the fraudulent concealment statute requires that the plaintiff show affirmative acts of concealment after the time of the alleged fraud.”


author: ROBERTS, J.,

text:
    MINOR CHILD by and through Her Parents and Next Friends JOHN DOE and Jane Doe, Parents; and John Doe and Jane Doe, Parents, Individually, Appellants v. MISSISSIPPI STATE FEDERATION OF COLORED WOMEN’S CLUB HOUSING FOR the ELDERLY IN CLINTON, INC. d/b/a Federation Tower; and Southland Management Corporation, Individually, Appellees.
    No. 2005-CA-00055-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.
    Certiorari Denied Nov. 2, 2006.

      James Ashley Ogden, Jackson, attorney for appellants.
    Walker Reece Gibson, Michael Wayne Baxter, Ridgeland, attorneys for appellees.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On July 11, 2002, John and Jane Doe, the parents and next friends of K.D., filed a complaint on K.D.’s behalf. Filed in the Hinds County Circuit Court, K.D. sued a Mississippi corporation called “the Mississippi State Federation of Colored Women’s Club Housing for the Elderly in Clinton, Inc. d/b/a Federation Tower Apartments and Southland Management Corporation” (Federation Tower). K.D. sued Federation Tower under causes of action for negligent security, failure to warn, and for failure to maintain the apartment complex in a reasonably safe condition. Essentially, K.D. claimed that, because of Federation Towers’s negligence, Tony Kelly entered the premises and raped her at least six times.

¶ 2. Federation Tower filed a motion for summary judgment. According to the record before the circuit court, the opposing parties presented two distinctly different versions of events. According to the Does, Kelly took advantage of the lack of security at Federation Tower, entered the premises, lived on the premises as a trespasser, encountered K.D. as she played and otherwise went about the apartments, and raped K.D. Federation Towers presented a much different version of events. According to Federation Towers, K.D. opened the fire doors and let Kelly in so that they could have consensual sex.

¶ 3. The circuit court granted Federation Tower’s motion for summary judgment and held (1) there was no genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge of Kelly’s violent nature and (2) there was no genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge that a violent atmosphere was present at Federation Tower. Aggrieved, K.D. appeals and raises the following issues:

I. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

II. WHETHER [K.D.] PRESENTED A GENUINE ISSUE OF MATERIAL FACT AS TO [FEDERATION TOWER’S] ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF TONY KELLY’S VIOLENT NATURE.

IIL^ WHETHER [K.D.] PRESENTED GENUINE ISSUE OF MATERIAL FACT REGARDING PROOF OF AN ATMOSPHERE OF VIOLENCE ON THE PREMISES.

IV. WHETHER [FEDERATION TOWER’S] FAILURE TO KEEP FIRE EXIT DOORS LOCKED CAUSED [KD.’S] INJURIES IS A QUESTION OF FACT FOR THE JURY.

V. WHETHER [FEDERATION TOWER] PROXIMATELY CAUSED [KD.’S] INJURIES IS A QUESTION OF FACT FOR THE JURY.

VI. WHETHER [THE] TRIAL COURT ERRED IN GRANTING [FEDERATION TOWER’S] MOTION TO STRIKE AFFIDAVITS OF WITNESS AMHURST BROWN.

VII.WHETHER [THE] TRIAL COURT ERRED IN DENYING [KD.’S] MOTION TO STRIKE AFFIDAVIT OF DON BYINGTON.

Finding that the circuit court erred in granting summary judgment, we reverse and remand.

FACTS

¶ 4. During the week, K.D. lived with her mother and stepfather in Jackson, Mississippi. Otherwise, K.D. spent weekends with her father, John Doe. John lived in one of the apartments at Federation Tower, located in Clinton, Mississippi. Federation Tower was an “assisted living” complex. John was approximately fifty years old, had a tenth grade education, was on dialysis treatment after a kidney transplant, and previously had hip replacement surgery, had two heart attacks with subsequent bypass surgery, and had poor eyesight. Apparently, he was a Social Security disability recipient.

¶ 5. During March of 2001, a friend of John’s noticed that K.D., then eleven years old, appeared pregnant. John called KD.’s mother, Jane Doe, and asked if she knew whether K.D. was pregnant. K.D. initially denied that she could have been pregnant. K.D. finally confessed that it was possible that she was pregnant, as she had been raped by a man named Tony Kelly. K.D. explained that Kelly raped her during her visits with her father.

¶ 6. On March 20, 2001, Dr. Louisa Lawson examined K.D. and determined that, at that time, K.D. was five to six months pregnant. Additionally, Robert Mahaffey, an investigator with the Hinds County Sheriffs Department, referred K.D. to the Mississippi Children’s Advocacy Center. On March 26, 2001, K.D. visited the Mississippi Children’s Advocacy Center and met with Denease Bishop, a clinical therapist. Bishop and K.D. discussed her encounters with Kelly. On April 5, 2001, K.D. visited the Children’s Advocacy Center again. Again, K.D. met with Bishop. K.D. related at least six incidents that involved sexual activity with Kelly.

¶ 7. Kelly was prosecuted for statutory rape. On May 31, 2001, Kelly filed a petition to plead guilty to statutory rape. The circuit court sentenced Kelly to a twenty year sentence with thirteen years suspended and seven years to serve. At the time of this opinion, Kelly is in prison serving his sentence.

¶ 8. K.D., by and through her parents, sued Federation Towers on July 11, 2002. On November 4, 2002, K.D., her father, and her mother all gave their depositions. In K.D.’s deposition, she discussed the times that Kelly raped her.

¶ 9. K.D. testified that Kelly first raped her during September of 2000. On a weekend visit with her father, K.D. went from his first floor apartment to her father’s friend’s apartment on the third floor. K.D. passed a message from her father and left the third floor. As K.D. went down the stairwell, Tony Kelly appeared from underneath the stairwell and grabbed K.D. K.D. screamed for help. K.D. testified in her deposition that she saw James Gray, the night and weekend manager of Federation Tower, about five to ten feet away. K.D. testified that she called to him and asked him to help her. According to K.D., Gray ignored her cries and walked away. Kelly then dragged K.D. into the stairwell and raped her. Kelly told K.D. that he would harm her father if she told anyone what happened, so she did not report the incident. She went back to her father’s apartment. Her father asked her what was wrong. She replied “nothing” and left the apartment to play with a friend.

¶ 10. K.D. alleged that Kelly raped her a second time during November of 2000. At that time, K.D. played hide-and-seek with a friend. As they played in the hallways and stairwell, Kelly again appeared from underneath the stairwell and raped her. After Kelly released her, she went back to her father’s apartment and took a bath. She did not report the rape because she was afraid.

¶ 11. Approximately a month and a half after the second rape, K.D. walked from her father’s apartment to a friend’s grandmother’s apartment. Again, Kelly appeared from underneath the stairwell and raped K.D. After Kelly raped her, K.D. went back to her father’s apartment and took a bath. She did not report that rape at the time. K.D. alleged that Kelly raped her as many as six times.

¶ 12. On November 26, 2002, Gladys Miller, the manager of Federation Tower, gave her deposition. Miller testified that there was not an atmosphere of violence at Federation Tower. Miller also testified that she had no notice of Kelly’s violent nature. James Gray, the night manager of Federation Tower, gave his deposition the same day as Miller. Gray claimed that he did not witness K.D. call out to him. He testified that he narrowly missed witnessing some variety of a sexual encounter involving K.D. Gray stated that, as he walked down a hallway, he heard someone run away. When he turned the corner, he only saw K.D. Gray claimed that K.D. was adjusting her clothes when he saw her. In particular, Gray claimed K.D. was fastening the straps on her overall shorts. Gray concluded that K.D. had been involved in some type of sexual activity and that her partner ran away when they heard Gray approaching.

¶ 13. On September 2, 2004, Kelly gave a deposition. Kelly claimed that he had consensual sex with K.D. Kelly suggested that K.D. would open a fire door for him to allow him access to the apartments. According to Kelly, he would enter the apartments through KD.’s help and then have consensual sex with K.D. — either in the stairwell or in her father’s apartment.

¶ 14. Amherst Brown, a resident of Federation Tower, submitted two affidavits. The basic conclusion in Brown’s two affidavits was that Kelly trespassed at Federation Tower and that there was an atmosphere of violence and frequent crime at Federation Tower. However, Don By-ington, the Chief of Police for the City of Clinton, submitted an affidavit in which he stated that the area surrounding Federation Tower was a low-crime area.

¶ 15. As mentioned, Federation Tower filed a motion for summary judgment. On October 8, 2004, Federation Towers filed a motion to strike Amherst Brown’s two affidavits. K.D. filed a motion to suppress Don Byington’s affidavit. On November 23, 2004, the circuit court granted Federation Tower’s motion to strike Amherst Brown’s affidavits. However, the circuit court denied K.D.’s motion to suppress Don Byington’s affidavit. That same day, the circuit court entered an order and granted Federation Towers’ motion for summary judgment. The circuit court held that K.D. failed to prove that Federation Towers had actual or constructive knowledge of Kelly’s violent nature and that K.D. failed to prove that Federation Towers had actual or constructive knowledge of an atmosphere of violence at Federation Towers.

¶ 16. As for K.D.’s allegation that James Gray saw Kelly pull K.D. into the stairwell, and that K.D. called out to Gray, the circuit court stated that KD.’s statement of what another person saw is pure speculation. The circuit court also stated that, assuming Gray saw K.D. being dragged into the stairwell, it is undisputed that there is no evidence in the record to suggest Gray knew that Kelly was the person who dragged K.D. into the stairwell.

STANDARD OF REVIEW

¶ 17. This Court conducts a de novo review of orders granting or denying summary judgment. Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Casualty Ins. Co., 537 So.2d 431, 433 (Miss.1988)).

¶ 18. The moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). Additionally, the circuit court must view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Furthermore, the circuit court must consider motions for summary judgment with a skeptical eye. Ratliff v. Ratliff 500 So.2d 981, 981 (Miss.1986). It is better for the circuit court to err on the side of denying the motion. Id.

ANALYSIS

I. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

¶ 19. “A claim of negligence has four elements: duty, breach, causation, and damages.” Price v. Park Management, Inc., 831 So.2d 550 (¶ 5) (Miss.Ct. App.2002). To prove that the circuit court should not have granted Federation Tower’s motion for summary judgment, K.D. had to demonstrate that a genuine issue of material fact existed regarding the fact that: (a) Federation Towers owed her a duty; (b) Federation Tower breached that duty; (c) damages; and (d) “a causal connection between the breach-and the damages, such that the breach is the proximate cause of [her] injuries.” Crain v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994) (emphasis in original) (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)).

A. DUTY

¶20. First, we must determine what duty Federation Tower owed K.D. That depends on whether K.D. was a licensee, an invitee, or a trespasser. This question of status can be a jury question, but where the facts are not in dispute, the question of status becomes a question of law. Little v. Bell, 719 So.2d 757 (¶ 17) (Miss.1998). Here, there is no dispute about the facts of the case. K.D. visited her father on weekends in his apartment at Federation Tower.

¶21. “[A]n invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Little v. Bell, 719 So.2d 757 (¶ 15) (Miss.1998) (emphasis in original) (quoting Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978)). “A landowner owes an invitee the duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view.” Little, 719 So.2d at (¶ 16) (citing Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992)).

¶ 22. “A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner.” Little, 719 So.2d at (¶ 15) (citing Hoffman, 358 So.2d at 1011). “A landowner owes a licensee a duty to refrain from willfully or wantonly injuring him.” Little, 719 So.2d at (¶ 16) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986)). A trespasser, however, is someone who “enters upon another’s premises without license, invitation, or other right.” Little, 719 So.2d at (¶ 15) (citing Hoffman, 358 So.2d at 1011). As with a licensee, “[a] landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him.” Little, 719 So.2d at (¶ 16) (citing Adams, 497 So.2d at 1100).

¶ 23. In Price, this Court stated:

It is well settled that a landlord owes his tenants a duty to keep the premises in a reasonably safe condition, and that this duty extends to protecting tenants from the foreseeable criminal acts of others, (citations omitted). It is also well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest, (citations omitted).

Pnce, 831 So.2d at (¶ 6).

¶ 24. So, it would seem that K.D., arguably a social guest of her father, should not be classified as an invitee. However, in Lucas v. Miss. Housing Authority # 8, 441 So.2d 101 (Miss.1983), the Mississippi Supreme Court discussed the status of a six-year-old child who drowned while swimming as an invited guest of an apartment tenant. In determining that the child was an invitee, the supreme court quoted the holding in Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959) which stated:

The second, alternative theory of liability upon which plaintiff must rely pertains to a multi-unit apartment building, where the owner leases parts to different tenants, and expressly or impliedly reserves other parts, such as entrances, halls, stairways, porches and walks, for the common use of different tenants. It is the landlord’s duty to exercise reasonable care to keep safe such parts over which he reserves control, and, if he is negligent in this respect, and personal injury results to a tenant or to a person there in the right of the tenant, he is liable in tort.

Lucas, 441 So.2d at 103 (emphasis in original) (citing Turnipseed, 236 Miss. at 167, 109 So.2d at 554).

¶ 25. Here, K.D. visited her father at her father’s apartment. K.D. alleges that Kelly raped her in the stairwell of the apartment building. It is difficult for this Court to conclude that any apartment complex would remain financially viable if, as a condition of its lease, it forbid a tenant from allowing his own child to visit at the apartment. Applying the language of Lucas, citing Tumipseed, K.D. was an invitee. A premises owner owes an invitee a duty to exercise reasonable care to protect an invitee from reasonably foreseeable injury at the hands of another. Crain, 641 So.2d at 1189. That being so, we must determine whether K.D.’s injury, no doubt at the hands of another, was “reasonably foreseeable.”

Was K.D’S injury reasonably foreseeable?

¶26. An act may be considered reasonably foreseeable if the premises owner had cause to anticipate the third party act. Id. “Cause to anticipate” a third party act may arise from (1) actual or constructive knowledge of the third party’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the premises. Id. Pertinent factors for consideration are (1) “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and (2) “the frequency of criminal activity on the premises.” Id. at 1189— 90.

1. Actual or constructive knowledge of Kelly’s violent nature.

¶ 27. K.D. argues that Federation Tower had actual or constructive knowledge of Kelly’s violent nature because the first time Kelly raped K.D., James Gray, the night manager at Federation Tower, saw Kelly grab K.D. before he raped her. K.D. claimed that Kelly appeared from underneath a stairwell and grabbed her. K.D. also claimed that she saw Gray five to ten feet away, so she called out to Gray for help. K.D. alleged that Gray saw her struggle and heard her cry out to him, but ignored her plea for help.

¶ 28. In his deposition, Gray stated that KD.’s allegation was untrue. According to Gray, he did not see Kelly grab K.D. and he did not hear K.D. call out to him. Gray testified that he encountered K.D.- on the stairwell, but he disputed K.D.’s allegation that K.D. called out to him. Gray claimed that he nearly witnessed some variety of consensual sexual behavior. Gray said he told K.D.’s father that K.D. “was having sex up there with somebody ... on the staircase.” Gray stated that he told Gladys Miller, the apartment manager, about the incident.

¶ 29. Clearly, K.D. swears to one version of events, while Gray swears to another. Applying our standard of review, we must view the evidence in the light most favorable to K.D. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). The circuit court held that “it is undisputed that there is no evidence in the record to suggest that James Gray knew that the person who dragged [K.D.] into the stairwell was Tony Kelly.” However, viewing the evidence in KD.’s favor, Gray would have had actual notice of Kelly’s violent nature when he saw Kelly grab K.D. Assuming, for the sake of argument, that Federation Tower could not have had actual or constructive knowledge of Kelly’s violent nature prior to the first occasion on which Kelly raped K.D., Federation Tower would have had actual or constructive knowledge of Kelly’s violent nature when Gray saw Kelly drag away a child as she screamed for help. As K.D. claimed Kelly raped her a total of six times, that actual or constructive knowledge would apply to the five subsequent rapes. Because it is better to err on the side of denying summary judgment, we disagree with the circuit court. See Ratliff, 500 So.2d at 981.

2. Actual or constructive knowledge of the existence of an atmosphere of violence.

¶30. Assuming, for the sake of argument, that there is no genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge of Kelly’s violent nature, there is a genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge of the existence of an atmosphere of violence surrounding the premises.

¶ 31. K.D. claims that Federation Tower had actual or constructive knowledge that an atmosphere of violence existed at the apartments. When determining whether a defendant had actual or constructive knowledge that an atmosphere of violence existed, pertinent factors for consideration are (1) “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and (2) “the frequency of criminal activity on the premises.” Crain, 641 So.2d at 1189-90.

¶ 32. When the circuit court granted summary judgment, the circuit court’s order stated:

Like the plaintiff in Crain, the plaintiffs in the case at bar failed to come forward with proof that an “atmosphere of violence” existed at the Federation Tower Apartment Complex during the time period of the alleged rapes in question, which occurred between September of 2000 and February of 2001. This Court takes notice of the fact that there is far less in the way of police reports or incidents of crime occurring at the Federation Tower Apartment Complex and the surrounding area than there was in the Crain case. Though the plaintiffs in the case at bar allege that during the period of September 2000 through February 2001, Federation Tower was experiencing a problem with trespassers, drug dealers, car break-ins, vandalism and other general crimes, the evidence in the record before the Court does not bear this out. It is an undisputed fact that the plaintiffs’ statistics show that only a small number of incidents occurred at the complex from 1994 to 1997, and show no incidents of crime occurring for the years 1998, 1999, 2000 or 2001. In the case at bar, reports of a few crimes from 1994 to 1997 and no crimes during the relevant time period of the plaintiffs rapes, which was between September 2000 and February 2001, cannot be deemed to have put the defendants on notice of the likelihood of rapes being committed by Tony Kelly against the minor plaintiff. It is undisputed that there is no evidence in the record before the Court of prior similar incidents occurring at the apartment complex or any violent crimes at the apartment complex, for that matter, that would have put the defendants on notice and thus given the defendants a reason to foresee the rapes in question. On this point, reasonable minds cannot differ.

¶ 33. In Crain, the supreme court found “that in fifty-five of the sixty months prior to the attack on [the plaintiff] there were numerous commercial burglaries and reports of larceny in the vicinity of the [premises], but there were only eleven assaults, robberies and other violent crimes in that five year period.” Id. at 1192. Accordingly, the supreme court found the attack on the plaintiff in Crain was not foreseeable. Id. We discuss this for comparative purposes only — not because it presents some bright-line test for foreseeability as it applies to the overall pattern of criminal activity in the vicinity of specific premises.

¶ 34. At KD.’s request, John Tisdale, an expert in the field of law enforcement and premises security, prepared a report. In Mr. Tisdale’s report, he detailed that the Federation Tower office was vandalized and burglarized on February 25, 1996. Further, that a television was stolen from the apartment building’s first floor gathering hall and, on August 22, 1996, a strong-arm robbery occurred.

¶ 35. In July of 1994, Federation Tower hired a security guard through Capital Security. Federation Tower decided to cancel the security patrol in 1998, due to budget concerns. Troy Holcomb was a security guard for Federation Tower during that time period. Holcomb gave a deposition and corroborated Mr. Tisdale’s report when he testified that Gladys Miller hired a security guard after someone broke into her office at the apartments. Holcomb also testified that “there were several times where I’ve had — called the police and had to have trespassers removed.”

¶ 36. In his deposition, Holcomb stated that he kept consistent reports. Holcomb kept copies of some of his reports. Those reports are among the record. Additionally, K.D. presented the Clinton Police Department’s records of calls for service to the property and the area around Federation Towers. Holcomb’s documents and the Clinton Police records show that incidents of strong arm robbery, assault, trespassing, drug related crime, burglary, grand larceny, auto theft, as well as incidents of public drunkenness and suspicious persons.

¶ 37. K.D. presented copies of reports prepared by the Clinton Police Department. According to those reports, the following occurred at Federation Tower: (a) on May 25, 1995, Holcomb called the Clinton Police Department and reported that he heard four shots fired from nearby; (b) on February 18, 1996, a tenant reported that her car was stolen; (c) on February 25, 1996, James Gray called the police and reported that someone broke into the office at Federation Tower; (d) on May 6, 1996, Holcomb called the police and reported that someone broke into a car parked at the apartments and stole a pistol and a cell phone; (e) on May 9, 1996, James Gray called the police and reported that someone stole a television from the apartment community room; (f) on June 9, 1996, someone called the police and reported that security needed assistance removing three intoxicated people from the premises; (g) on July 15, 1996, a tenant called the police and reported an incident of theft; (h) on July 17, 1996, a tenant reported a car theft; (i) on August 14, 1996, a tenant reported another car theft; (j) on August 22, 1996, a tenant called the police and reported that someone grabbed her, threw her to the ground, struck her, choked her, and robbed her; (k) on December 15, 1996, James Gray called the police and reported a public drunk; (J,) on June 6, 1997, Holcomb reported a suspicious person who continually tried to enter the apartments at 4:05 a.m.; (m) on July 14,1997, Holcomb reported a public drunk; (n) on August 24, 1997, Holcomb reported an attempted car burglary during which someone broke a window and attempted to steal a car, (o) On September 26, 1997, Holcomb reported an incident in which someone broke into the office at Federation Tower and stole a cell phone, and (p) on October 7, 1997, Holcomb called the police and reported multiple trespassers. Curiously, there are no police reports in the record regarding Federation Tower between 1997 and 2002, but there are a multitude of reports of assault, theft, and trespassing in the vicinity of Federation Tower after 2002 — including incidents of child abuse, kidnapping, and sexual battery.

¶38. Gladys Miller gave a deposition and stated that there was not an atmosphere of violence at Federation Tower. James Gray also gave a deposition and testified similarly. However, K.D. presented a memorandum prepared by Miller in which Miller recognized that trespassers were able to gain access to the building through the fire exit doors, which were prevented from locking properly when tenants obstructed the latches. Considering the overall pattern of criminal activity in the vicinity of Federation Tower and the frequency of that criminal activity, we are of the opinion that a genuine issue of material fact exists as to whether Federation Tower had actual or constructive notice of an atmosphere of violence on or around their property.

B. BREACH

¶ 39. The circuit court based its decision on a lack of genuine issue of material fact regarding Federation Tower’s duty in light of the presence of third party criminal acts. Accordingly, the circuit court only addressed the issue of breach with the following language:

Even if this Court were to take the plaintiffs’ side regarding foreseeability and notice, plaintiffs’ claim would still fail, as a matter of law, because the plaintiffs must make a showing of proximate cause between the alleged breaches of the defendants and the resulting harm to her. This the plaintiffs failed to do. This Court finds, as a matter of law, that there is no evidence of a breach of any duty owed on the part of the defendants which proximately caused or contributed to the rapes in question. See Price v. Park Management, 831 So.2d 550 (Miss.App.2002.)[sic].

¶ 40. We disagree. K.D. presented evidence in the form of her deposition testimony that Federation Tower (a) had actual or constructive notice of Kelly’s violent nature, yet did nothing to prevent Kelly from raping her, and (b) had actual or constructive notice of an atmosphere of violence in the vicinity of Federation Tower while discontinuing security services and neglecting to take other preventative measures to mitigate those risks.

C. CAUSATION

¶ 41. Not only must KD. demonstrate duty and breach, K.D. must demonstrate that a genuine issue of material fact exists as to whether there was “a causal connection between the breach and the damages, such that the breach is the proximate cause of [her] injuries.” Crain, 641 So.2d at 1189. “Proximate cause arises when the omission of a duty contributes to cause an injury.” Id. at 1192.

The circuit court briefly mentioned the element of causation in its order:

The plaintiffs contend that proximate cause is a jury question. However, that is certainly not always the case. The Mississippi Supreme Court has affirmed the grant of summary judgments and directed verdicts in favor of defendants on appeal and has not hesitated to reverse and render cases in favor of defendants on appeal on the issue of proximate causation and the doctrine of independent, intervening causes, (citations omitted).

¶ 42. The circuit court did not actually find that no genuine issue of material fact existed as to the element of causation, but that is to be implied from the circuit court’s language. In light of our resolution of the issues above, there are issues of material fact regarding the proximate causation element. See Lyle, 584 So.2d at 400. As for damages, that element played no part in the circuit court’s decision to grant summary judgment. Accordingly, we remand this matter to the circuit court for a trial on the merits.

¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED TO THE CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . We use the fictitious initials "K.D.” to protect the child's identity.

      . K.D. was eleven years old at the time. In discussing the facts of this case and the positions of the parties, we acknowledge Section 97-3-65 of the Mississippi Code Annotated (Rev.2000), which sets forth the elements of the crime of statutory rape. Consent or mistake of age are not defenses to the crime when the child is younger than fourteen years of age. Miss.Code Ann. § 97-3-65(l)(c) (Rev. 2000). Our discussion in no way effects the validity of that statute.

      . Statutory rape is a violation of Section 97-3-65 (Rev.2004) of the Mississippi Code. Pursuant to Section 97-3-65(2)(c) the sentencing guidelines for a violation is imprisonment for a minimum of twenty years and a maximum of life imprisonment. According to Section 47-7-33(1) of the Mississippi Code Annotated (Rev.2004), the circuit court has no authority to suspend a portion of a sentence when the maximum punishment is life imprisonment. Section 47-7-33(1) was in effect at the time Kelly pled guilty.


author: IRVING, J.,

text:
    Jake BRYAN, Appellant v. Jimmy Earl ARON, Appellee.
    No. 2005-CA-00157-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied Aug. 1, 2006.
    Certiorari Denied Nov. 2, 2006.

      Cliff R. Easley, attorney for appellant.
    Roger Adam Kirk, Jay Gore, Grenada, attorneys for appellee.
    . Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises from an order of the Circuit Court of Calhoun County, finding that Jake Bryan’s complaint against Jimmy Aron was time barred. Aggrieved, Bryan appeals, and asserts that the court below erred in ruling that his cause of action was barred by the statute of limitations.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 17, 1997, Bryan loaned Aron $79,000 in cash. In return, Aron gave Bryan a check for $79,000, payable to Bryan. Bryan and Aron agreed that the check would not be presented for payment until two months from the date of its issuance. Bryan presented the check for payment for the first time in December 1997, but it was dishonored because of insufficient funds in the account. Bryan held on to the check and again presented it for payment in 1998 and 1999. Each time, he was informed by the bank that the account funds were insufficient to cover the amount of the check. Finally, in July or August 2001, Bryan made a fourth attempt to cash the check, and was informed by the bank that Aron’s account had been closed. At that time, the bank stamped the check dishonored due to the account being closed.

¶ 4. On October 16, 2001, Bryan filed suit against Aron to recover the $79,000. The trial court granted Aron’s motion to dismiss, finding that Byan’s action was barred by the statute of limitations, Mississippi Code Annotated section 15-1-49(1) (Rev.2003).

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. The date of the commencement of the statute of limitations is the fulcrum on which our decision revolves. Bryan argues that the check was not officially dishonored until July or August 2001, at which time the bank informed him that Aron’s account was closed. Aron counters that the check was dishonored when Bryan first presented it for payment in December 1997 and was informed by the bank that there were insufficient funds in the account to cover the amount of the check.

¶ 6. In resolving the issue, we must first note the meaning of certain terms in order to give clarity to our analysis and holding. Mississippi Code Annotated section 75-3-104(f) (Rev.2002) states that a “ ‘[c]heck’ means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank.... ” Therefore, there is no question that Aron’s check to Bryan was a draft. We next examine what it means to present a draft for payment. Mississippi Code Annotated section 75-3-501(a) (Rev. 2002) states that “ ‘[presentment’ means a demand made by or on behalf of a person entitled to enforce an instrument (i) to pay the instrument made to the drawee or a party obliged to pay the instrument or, in the case of a note or accepted draft payable at a bank, to the bank....”

¶ 7. As stated, the check was first presented in December 1997 when Bryan made a demand on the bank to pay the amount of the check. Mississippi Code Annotated section 75-3-502(b)(2) (Rev. 2002) states that “[i]f a draft is payable on demand ... the draft is dishonored if presentment for payment is duly made to the drawee and the draft is not paid on the day of presentment.” Consequently, we find that the check was first dishonored in December 1997 when Bryan presented it for payment and the bank refused to remit payment because of insufficient funds.

¶ 8. Having found that the check was dishonored when Bryan first presented it for payment in December 1997, we next address the applicable statute of limitations. We find that the applicable statute of limitations is Mississippi Code Annotated section 75-3-118(c) (Rev.2002), as agreed to by the parties. Section 75-3-118(c) states in pertinent part, “an action to enforce the obligation of a party to an unaccepted draft to pay the draft must be commenced within three (3) years after dishonor of the draft or ten (10) years after the date of the draft, whichever expires first.” Here the check was first presented to the bank for payment in December 1997, and the bank refused to hon- or the check due to insufficient funds. Therefore, pursuant section 75-3-118(c), Bryan had three years from December 1997 to bring a cause of action against Aron. He did not file suit until October 2001, almost four years from the date the check was first dishonored.

¶ 9. We note that the trial judge found that the general catch-all statute of limitations, Mississippi Code Annotated section 15-1-49 (Rev.2003), was the applicable limitations statute. The trial judge reasoned that the check was not given in exchange for goods or services, that its sole purpose was to evidence the existence of a $79,000 loan between the parties, and that the loan was to bear interest at the rate of ten percent per annum. Therefore, the trial judge concluded that the check in reality was a promissory note, payable on demand. The record does not reflect that a promissory note was ever signed by Aron, nor is there a memorandum of the parties’s oral agreement setting forth the terms and conditions for the repayment of the $79,000. Under these circumstances, we are loath to find that the check operated as a promissory note. Assuming ar-guendo that it did, our result would still be the same, for we agree with the trial judge that Bryan’s cause of action accrued when he first presented the check for payment in December 1997, and the check was dishonored by the bank. Therefore, in order to be timely, Bryan needed to file his lawsuit by December 2000. Since the suit was not filed until 2001, we find no error in the trial court’s dismissal of Bryan’s complaint.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS JJ., CONCUR. SOUTHWICK, J., CONCURS IN RESULT ONLY.

      . The check was drawn on the Bank of Mississippi, which has subsequently become Ban-corpSouth.

      . Section 15-1-49(4) provides that "[a]ll 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.”