source: Caselaw Access Project

author: WALLER, Chief Justice, for the Court:

license: Public Domain

text:
    CHASE HOME FINANCE, L.L.C. and Priority Trustee Services of Mississippi, L.L.C. v. James D. HOBSON, Jr.
    No. 2011-IA-00358-SCT.
    Supreme Court of Mississippi.
    March 1, 2012.

      Alicia S. Hall, C. Lee Lott, III, Mark H. Tyson, Jackson, attorneys for appellants.
    Kenneth B. Rector, Allison M. Brewer, Vicksburg, attorneys for appellee.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   WALLER, Chief Justice, for the Court:

¶ 1. This matter comes before the Court on interlocutory appeal from the Circuit Court of Warren County, in which the circuit court affirmed in part and reversed in part the county court’s grant of summary judgment for Plaintiff, James D. Hobson, Jr. Defendants Chase Home Finance, LLC, and Priority Trustee Services of Mississippi, LLC (collectively referred to as “Chase”) appeal the circuit court’s affirmance of their liability. Hobson cross-appeals from the circuit court’s order vacating the county court’s award and ordering a trial on damages.

¶ 2. We find that the borrower’s alleged reinstatement prior to the foreclosure sale creates a genuine issue of dispute regarding Chase’s liability, and, therefore, we hold that the circuit court erred in affirming the county court’s grant of summary judgment as to liability. Accordingly, we reverse the circuit court’s judgment and remand to the county court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April, 1996, Deborah Hood Quim-by executed a deed of trust securing indebtedness on, and conveying a security interest in, property in Warren County, Mississippi. The deed eventually was assigned to Chase Home Financing, LLC, which appointed Priority Trustee Services of Mississippi, LLC, as substitute trustee.

¶ 4. Quimby defaulted on her loan payments, and Chase scheduled a foreclosure sale on the property for March 20, 2008. At some time prior to the foreclosure sale, Quimby allegedly cured her default and reinstated her loan. The record does not show how or when Quimby allegedly reinstated. Chase alleges that it attempted to communicate the reinstatement to the crier of the foreclosure sale, but was unsuccessful.

¶ 5. Hobson appeared at the foreclosure sale and offered the highest bid at $60,948.82. Hobson tendered to Chase’s agent a cashier’s check in this amount. Chase gave Hobson a receipt for the sale, which included the following language:

The sale will not be considered final until all requirements have been met and may be withdrawn based on a timely re-instatement and/or by an order of the Bankruptcy Court.

About two weeks later, Chase returned Hobson’s check and refused to tender a deed to the land, stating that the foreclosure sale had been cancelled due to Quim-by’s reinstatement.

¶ 6. On April 24, 2008, Hobson filed a complaint in the County Court of Warren County against Chase, alleging breach of contract. Hobson contended that the defendants’ breach was grossly negligent and requested actual and punitive damages, along with attorney’s fees and expenses. Chase denied the allegations. Subsequently, each party filed a motion for summary judgment.

¶ 7. On December 1, 2009, the county court granted Hobson’s motion for summary judgment and denied Chase’s motion. The court found that Hobson was entitled to $95,051.18 in damages to compensate him “for the loss of his bargain.” This award was based on the difference between the amount he offered for the property and the value of the property, according to an appraisal submitted by Hobson. The court also awarded Hobson $10,868.60 in attorney’s fees and expenses, finding that Chase’s breach was grossly negligent. The county court’s judgment did not address Quimby’s alleged reinstatement and the effect it might have had on the foreclosure sale.

¶ 8. Chase appealed, and on February 18, 2011, the circuit court affirmed summary judgment for Hobson on Chase’s liability, holding that the parties had formed a contract and that Chase had breached that contract. However, the circuit court held that there were genuine issues as to the existence and amount of damages and ordered a trial on these issues. The circuit court, like the county court, did not address the alleged reinstatement in its judgment. This Court then granted Chase’s petition for interlocutory appeal.

ISSUES

¶ 9. On appeal, Chase claims the circuit court erred in affirming summary judgment as to Chase’s liability. On cross-appeal, Hobson claims the circuit court erred in vacating the county court’s award and ordering a trial on damages.

STANDARD OF REVIEW

¶ 10. We review a trial court’s grant or denial of summary judgment de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (Miss.2009). Summary judgment shall be rendered when “the pleadings, depositions, answers to interrogatories and admissions on file ... 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.” Miss. R. Civ. P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists, whereas the nonmov-ing party is given the benefit of the doubt as to the existence of a material fact. Waggoner, 8 So.3d at 152-53. When considering a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party. Id. at 152.

DISCUSSION

I. Chase’s appeal

¶ 11. Both the county and circuit courts appear to have focused on the actions taken by the parties on the courthouse steps at the foreclosure sale. Each court determined the parties had formed a contract for the purchase and sale of property. Neither court, though, addressed the central matter at issue in this case— whether Quimby, the borrower, reinstated her loan prior to the foreclosure sale. Proper analysis of the case must begin with a determination of this issue.

¶ 12. “Caveat emptor still reigns at foreclosure sales.” Hill v. Thompson, 564 So.2d 1, 11 (Miss.1989). Mississippi law protects a borrower’s right to reinstate his or her loan up until the moment a foreclosure sale is made. Miss.Code Ann. § 89-1-59 (Rev. 2011) (after default, “the debtor ... may at any time before a sale be made ... stop a threatened sale under the powers contained in [the deed of trust].”) (emphasis added). Under this statute, once a borrower reinstates his or her loan, the mortgagee no longer has the right to sell the property. See In re Martin, 276 B.R. 552, 555 (Bankr.N.D.Miss.2001) (“In effect, a debtor may stop a foreclosure sale, before it becomes final, by bringing the debt current.”) (interpreting Section 89-1-59).

¶ 13. If Quimby did, in fact, reinstate her loan prior to the foreclosure sale, then she was no longer in default and Chase could not convey the property at the foreclosure sale, pursuant to Section 89-1-59. If Chase conducted the sale without statutory authority, then the foreclosure sale was void. See Osborne v. Neblett, 65 So.3d 311, 313 (Miss.Ct.App.2011) (foreclosure sale held void when it did not comply with statutory requirements); see also Lake Hillsdale Estates, Inc. v. Galloway, 473 So.2d 461, 465 (Miss.1985) (stating that a foreclosure under a “power of sale” clause is properly conducted only if it meets statutory requirements). If the sale was void, then Hobson did not acquire anything at the sale and does not have a claim for breach of contract. So, if Quimby reinstated her loan prior to the foreclosure sale, not only should Hobson be denied summary judgment, but judgment should be entered in favor of the defendants.

¶ 14. However, whether and when Quimby reinstated her loan remains a disputed issue of fact at this stage of the litigation. While Chase contends that Quimby reinstated her loan prior to the foreclosure sale, the only proof offered by Chase relating to Quimby’s reinstatement is in an affidavit submitted by Lashun Palmer, a Reinstatement/Payoff Representative for Prommis Solutions, Inc. Palmer’s affidavit says only that the borrower (Quimby) “complied with [the reinstatement] requirements prior to the foreclosure sale that was cried on March 20, 2008.” Absent from the record is a copy of Quimby’s check or any other indication of payment made to cure her default. Nor does the record contain any documentation from Chase that Quimby has cured the default and reinstated the loan. Although the affidavit submitted is sufficient to create a genuine issue as to whether Quimby reinstated her loan prior to the foreclosure sale, it is insufficient to prove the matter in Chase’s favor under the summary judgment standard. See Scott v. City of Biloxi, 592 So.2d 1003 (Miss.1991) (holding that mayor’s conclusory affidavit concerning insurance policy was insufficient proof to warrant summary judgment for the city when the policy itself was not in the record). Accordingly, at this stage of the litigation, Chase is not entitled to judgment as a matter of law.

¶ 15. On remand, the trial court should first determine whether Quimby reinstated her loan prior' to the foreclosure sale. If she did, then Hobson’s breach-of-contract claim fails, and judgment should be entered for the defendants.

II. Hobson’s Cross-Appeal

¶ 16. Having determined that summary judgment for Hobson was inappropriate, Hobson’s cross-appeal, asking this Court to reinstate the damage award of the county court, is denied without further discussion.

III. Remand

¶ 17. Because this appeal comes from a circuit court’s review of a county court’s judgment, there appears to be a question regarding to which court the case should be remanded. The circuit court’s order initially remanded the case for a trial on damages in the county court. Both parties then argued that the case should be retained by the circuit court under Mississippi Code Section 11-51-79 (Rev. 2002). The circuit court then amended its order to show that the trial on damages would take place in the circuit court. On appeal, Chase asks this court to reverse the judgment and remand the case to the circuit court.

¶ 18. This Court has held that Mississippi Code Section 11-51-79 has no application on appeals from grants of summary judgment in county court. Allen v. Mayer, 587 So.2d 255, 261 (Miss.1991). “Procedural matters regarding appeals from county to circuit or chancery court, not otherwise prescribed, are governed by the Rules of the Mississippi Supreme Court.” Id. When we reverse a circuit court’s affirmance of a county court’s grant of summary judgment, we remand the case to county court. Id. Accordingly, we remand this case to the County Court of Warren County for further proceedings.

CONCLUSION

¶ 19. If the borrower reinstated her loan prior to the foreclosure sale, then Hobson’s breach-of-contract claim fails. This material question of fact creates a genuine issue of dispute precluding summary judgment for Hobson. Accordingly, we reverse the circuit court’s affirmance of summary judgment for Hobson and remand the case to county court for further proceedings. In so doing, we effectively deny Hobson’s cross-appeal, by refusing to reinstate the judgment of the county court.

¶ 20. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Priority, appointed as substitute trustee by Chase, was acting as Chase’s agent throughout the foreclosure proceedings. See Wansley v. First Nat’l Bank of Vicksburg, Vicksburg, Miss., 566 So.2d 1218, 1223 (Miss.1990) (trustee under a deed of trust acts as agent to both parties under the deed of trust). Furthermore, Chase and Priority have filed joint briefs and neither has argued that its actions should be considered separate from the actions of the other. Accordingly, this opinion will not distinguish between action taken by Chase, or its representatives, and action taken by Priority, or its representatives. The defendants will be referred to collectively as "Chase.’’

      . The circuit court’s decision effectively affirmed the denial of Chase’s motion for summary judgment.

      . Such a decision is in line with authority from other jurisdictions. See Lee v. HSBC Bank USA, 121 Hawai’i 287, 218 P.3d 775 (2009) (holding that a winning bidder at a foreclosure sale was entitled only to the return of his purchase money with interest when, unbeknownst to seller, borrower had timely reinstated prior to the sale); Residential Capital, LLC v. Cal-Westem Reconveyance Corp., 108 Cal.App.4th 807, 134 Cal.Rptr.2d 162 (Cal.Ct.App.2003) (same); Staffordshire Investments, Inc. v. Cal-Westem Reconveyance Corp., 209 Or.App. 528, 149 P.3d 150 (2006) (limiting winning bidder’s recovery to return of his purchase funds when borrower and bank had agreed to postpone foreclosure sale, but sale went through due to miscommunication); Ameriquest Mortgage Co. v. Bellon, 29 A.D.3d 612, 815 N.Y.S.2d 193 (N.Y.App.Div. 2006) (holding foreclosure sale null and void where borrower made timely reinstatement prior to sale).

      . According to Palmer’s affidavit, Prommis Solutions was retained by the law firm Morris, Schneider, Prior, Johnson, & Freedman, LLC, "to handle the processing of the foreclosure sale and any possible reinstatement of the Property.” At the time, this law firm was representing Priority.

      . Mississippi Code Section 11-51-79 concerns appeals from county courts. The statute provides, in pertinent part, that "if a new trial is granted the cause shall be remanded to the docket of such circuit or chancery court and a new trial be had therein de novo."


author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    Lamar HOOKER v. Stephen C. GREER.
    No. 2010-CA-01283-SCT.
    Supreme Court of Mississippi.
    March 8, 2012.

      Linda F. Cooper, James L. Robertson, Jackson, attorneys for appellant.
    Ed L. Brunini, Jr., Lane W. Staines, Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Lamar Hooker appeals from the Carroll County Chancery Court’s grant of Stephen C. Greer’s Motion for Partial Summary Judgment, in which the court awarded attorney’s fees to Greer based on Hooker’s improper filing of a lis pendens, and Greer’s Motion for Summary Judgment on Hooker’s counterclaim. We affirm the trial court’s finding that the lis pendens was improperly filed. However, because the trial court based the attorney’s fees award on an improper interpretation of the Litigation Accountability Act, we reverse the judgment, vacate the award, and remand for further consideration. Finally, we affirm the trial court’s grant of summary judgment for Greer on Hooker’s counterclaim, holding that his claim is subject to the three-year statute of limitations and, thus, is time-barred.

FACTS AND PROCEDURAL HISTORY

¶ 2. Greer and Hooker knew each other for more than thirty years, having worked together in multiple business ventures. In early 2002, Greer and Hooker entered into an agreement for the purchase, development, and sale of two tracts of land— Prairie Point Towhead, located in Arkansas, and Lee Towhead Island, in Missouri. Each party made monetary contributions and participated in certain decisions regarding the development and marketing of the properties. In November 2002, Greer and Hooker executed agreements with T. Eugene Moss, a forester, and Gary Davidson, a logger, for the removal of timber from Lee Towhead Island. In the agreements, Hooker and Greer were referred to as “H/G,” and each signed the agreements as the “Owner” of Lee Towhead Island.

¶ 3. In September 2003, Greer sent a letter to Hooker in which he cancelled their business arrangement. In this letter, he characterized the relationship as a “proposed joint venture” and declared such proposed venture “null and void.” Greer claimed the “proposed joint venture” was predicated on Hooker’s ability to put up one half of the initial capital investment to purchase the properties, and that Hooker had failed to do so. In the letter, Greer acknowledged that Hooker had contributed approximately $100,000, and Greer said he would “render a final accounting” on those funds to Hooker as soon as possible. Greer requested that Hooker send him calculations of his un-reimbursed expenses and documentation in support thereof.

¶ 4. Hooker alleges that, after receiving this letter, he attempted to contact Greer both by phone and in person to seek repayment of his contributions. Hooker alleges that Greer stated he would not pay Hooker any money. Greer acknowledges that Hooker showed up at his house in May 2007 demanding repayment.

¶ 5. In August 2005, Hooker, without counsel, filed a lis pendens notice with the Chancery Clerk of Carroll County, Mississippi. The notice said that Hooker was instituting a lawsuit against Greer in Madison County, Mississippi, for $141,000. The lis pendens designated land that Greer owned in Carroll and Holmes Counties as the “subject property” of the suit.

¶ 6. Greer became aware of the lis pen-dens while marketing his property in Carroll County. Greer claims he sent a letter to Hooker in January 2009 requesting that Hooker cancel the Us pendens. Hooker alleges that he never received such a letter, and the record does not contain a signed copy.

¶ 7. On May 28, 2009, Greer filed a Complaint to Remove Cloud on Title, seeking to have the Us pendens cancelled. In the complaint, Greer also sought recovery of his attorney’s fees. On June 30, 2009, Hooker filed an Answer and CounterClaim, admitting the lis pendens, but denying that it was improperly filed. In his counterclaim, Hooker alleged he and Greer had entered into an “equitable partnership.” Hooker alleged Greer had breached his fiduciary duties to Hooker by terminating the partnership. Hooker claimed Greer had been unjustly enriched at his expense by at least $141,000, and that he (Hooker) had suffered a $141,000 loss. Hooker asked the court to impose a constructive trust on nonspecific “funds or properties” held by Greer. In his request for relief, Hooker demanded a monetary judgment “in the amount of $141,000, together with interest and costs.”

The Lis Pendens and Attorney's Fees Award

¶ 8. On October 1, 2009, Greer filed a Motion for Partial Summary Judgment, arguing that he was entitled to cancellation of the Us pendens and an award of attorney’s fees. Prior to the hearing on Greer’s motion, Hooker’s counsel advised Greer’s counsel that Hooker would not contest the cancellation of the Us pendens, but would oppose Greer’s request for attorney’s fees. On November 11, 2009, the day scheduled for hearing on Greer’s motion for summary judgment, Hooker formally cancelled the Us pendens in the docket of the Carroll County Chancery Clerk.

¶ 9. At the summary judgment hearing, counsel for Greer argued that Greer was entitled to attorney’s fees under the Litigation Accountability Act of 1988 (“the LAA”). Greer’s counsel argued that Hooker’s improper filing of the lis pen-dens, as well as his denial of the lis pen-dens ’ impropriety, formed the basis for an award of attorney’s fees under the LAA. At the conclusion of the plaintiffs argument, Hooker’s attorneys announced that they were not prepared to argue the issue of attorney’s fees as arising under the LAA, and they requested additional time to respond. The court granted the request, and, on December 29, 2009, Hooker submitted a supplemental brief, along with supporting exhibits and affidavits, addressing the applicability of the LAA.

¶ 10. Hooker argued that the filing of a Us pendens was not an “action,” as that term is defined under the LAA. Hooker also argued that there was no evidence that he knew or reasonably should have known that his filing of the Us pendens was without substantial justification, as required by the LAA for awarding attorney’s fees against a party acting pro se. That said, counsel for Hooker, in the Answer to Greer’s Complaint to Remove Cloud on Title, denied the impropriety of the Us pendens. Hooker’s attorneys argued that they acted in a reasonable manner in contesting the complaint because they had not yet had time to fully investigate the facts surrounding the claim. Hooker’s attorneys also argued they had timely notified Greer’s counsel that the impropriety of the lis pendens would not be contested. Notwithstanding this concession, no actions were taken to dismiss the lis pendens until the day of the hearing on Greer’s motion for summary judgment.

¶ 11. On March 22, 2010, the court issued a judgment granting Greer’s motion and awarding Greer attorney’s fees in the amount of $12, 794.88. The court held that Hooker’s filing of the lis pendens constituted a frivolous claim that was without substantial justification. As such, the court held that Hooker, individually, should be assessed attorney’s fees. The court awarded Greer the attorney’s fees he had incurred related to the lis pendens, through November 12, 2009. The court did not assess attorney’s fees against Hooker’s counsel.

The Counterclaim

¶ 12. On April 21, 2010, Greer filed a Motion for Summary Judgment on Hooker’s counterclaim, arguing that the claim was barred by the three-year statute of limitations. Greer also argued that Hooker was not entitled to a constructive trust, which would give rise to a ten-year statute of limitations, since the parties never formed a partnership, but rather had a “proposed joint venture” which never materialized, due to Hooker’s alleged failure to provide his half of the funding. Greer further argued that, even assuming a partnership did exist and that a constructive trust arose, Hooker would be responsible for a portion of the financial loss incurred by the partnership, which Greer alleged totaled more than $1 million.

¶ 13. In his response, Hooker asserted that he and Greer were, in fact, partners. Hooker alleged that Greer’s admission, in his September 2003 letter, that he owed Hooker an “accounting” was evidence that Greer and Hooker had formed a partnership. As additional evidence of the alleged partnership, Hooker referenced the agreements that he and Greer had entered into with Moss and Davidson regarding the removal of timber from Lee Towhead Island. Hooker argued that Greer had breached his fiduciary duties to Hooker, had failed to provide a partnership accounting, and wrongfully had retained partnership property. As such, Hooker argued a constructive trust should be imposed on the partnership property, as it existed on September 9, 2003, for Hooker’s benefit. Hooker argued that his claim was not barred, as claims for a constructive trust are subject to the ten-year statute of limitations found in Mississippi Code Section 15-1-39 (Rev.2003).

¶ 14. On June 29, 2010, the court granted Greer’s Motion for Summary Judgment. The court characterized the parties’ relationship as an unwritten joint venture or “single-shot partnership” in relation to the Lee Towhead Island and the Prairie Point Towhead properties. The court found that Hooker had contributed approximately $120,000 to the business venture. The court held that Greer’s 2003 termination letter to Hooker put the roughly $120,000 owed to Hooker at issue. The court said the record was devoid of fraud, abuse of confidence, wrongful conduct, or any other unconscionable conduct on the part of Greer. The court noted that Greer’s letter acknowledged that Hooker had contributed money and that an accounting should be made between the parties. The court found that Hooker had not pursued an accounting in a timely fashion. As such, the court found that a constructive trust was not applicable in this case, and it held that Hooker’s counterclaim was barred by the three-year statute of limitations. Hooker timely appealed from the court’s final judgment and its prior interlocutory judgments.

ISSUES

¶ 15. Hooker brings two issues on appeal:

1) Whether the trial court erred in awarding Greer attorney’s fees under the LAA, and
2) Whether the trial court erred in granting Greer’s motion for summary judgment on Hooker’s counterclaim.

STANDARD OF REVIEW

¶ 16. This Court reviews a trial court’s grant or denial of summary judgment de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (Miss.2009). This Court also reviews grants or denials of partial summary judgment de novo. Id. at 153. Summary judgment shall be rendered when “the pleadings, depositions, answers to interrogatories and admissions on file ... 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.” Miss. R. Civ. P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists, whereas the nonmoving party is given the benefit of the doubt as to the existence of a material fact. Waggoner, 8 So.3d at 152-53. When considering a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmov-ing party. Id. at 152.

¶ 17. This Court reviews an award of attorney’s fees for abuse of discretion. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (Miss.2002). However, this Court conducts a de novo review of questions of law — including whether the LAA applies to Hooker’s filing of the lis pendens. See Bank of Miss. v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996).

DISCUSSION

I. Whether the trial court erred in awarding attorney’s fees based on Hooker’s improper filing of the lis pendens.

A. The lis pendens

¶ 18. Hooker filed a lis pendens in Carroll County but took no other action to pursue a claim against Greer. A lis pendens is intended to serve as “notice to the world of an alleged claim of a lien or interest in the property.” Aldridge v. Aldridge, 527 So.2d 96, 99 (Miss.1988). Filing a lis pendens is a preliminary action necessary to file a civil action to enforce an interest in property. See Miss.Code Ann. §§ 11—47—8, 11-47-9 (Rev.2002). The lis pendens filing provides notice to the public of an alleged claim on land. Aldridge, 527 So.2d at 99.

¶ 19. It is undisputed that Hooker took no action with respect to the lis pen-dens from August 2005, when he filed the lis pendens, until after Greer filed his suit in May of 2009 to remove the cloud on title. There is further no issue that the lis pendens filing was without any legal or arguable basis, as Hooker had no alleged claim on Greer’s land in Carroll and Holmes Counties. We therefore affirm the trial court’s finding that the filing of the lis pendens was without basis in fact or law, and was without substantial justification.

B. The Litigation Accountability Act (“LAA”)

¶ 20. Hooker argues that the LAA does not authorize awarding attorney’s fees based on the filing of a lis pendens. While the filing of the lis pen-dens notice itself does not constitute an “action” subject to the LAA, a defense to an action to remove a lis pendens, filed without substantial justification, may form the basis of an award under the LAA.

¶21. The LAA allows costs and expenses for claims or defenses asserted without substantial justification:

[I]n any civil action commenced or appealed in any court of record in this state, the court shall award ... reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment.

Miss.Code Ann. § 11-55-5(1) (Rev.2002) (emphasis added). The LAA defines an “action” as involving not only a claim, but also a defense:

“Action” means a civil action that contains one or more claims for relief, defense or an appeal of such civil action. For purposes of this chapter only, an “action” also means any separate count, claim, defense or request for relief contained in any such civil action.

Miss.Code Ann. § 11-55-8 (Rev.2002) (emphasis added).

¶ 22. The LAA provides for the award of attorney’s fees for actions taken by parties or their attorneys within the confines of a civil action. The provisions of the LAA are in harmony with those of Mississippi Rule of Civil Procedure 11, which allows for the awarding of attorney’s fees as a sanction. Rose v. Tullos, 994 So.2d 734, 738 (Miss.2008). The LAA merely augments Rule 11 by “stating that the court shall specifically set forth the reasons for awarding attorney fees and costs and enumerates factors which shall be considered by the court.” Rose, 994 So.2d at 738 (quoting Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993)). The LAA’s definition of “action,” in which it also discusses “claims” and “defenses,” is similarly designed to restrict the LAA’s applicability to filings within the confines of a civil action. See Miss.Code Ann. § 11-55-3; see also Randolph v. Lambert, 926 So.2d 941, 944 (Miss.Ct.App.2006) (“The court will only award fees when a party brings frivolous or bad faith litigation.”) (emphasis added).

C. The defense of the complaint to remove cloud on title

¶ 23. Greer asserts that, even if the filing of a lis pendens is not considered an action, Hooker’s defense of the lis pendens in his Answer provided the basis for an award of attorney’s fees under the LAA. We agree with Greer that the LAA provides for attorney’s fees awards based on a frivolous or bad-faith defense. However, the trial court’s judgment is clear that the award was based on Hooker’s filing of the lis pendens. Since the LAA' does not support a sanction based on Hooker’s filing of the lis pendens, we vacate the trial court’s award. On remand, the court should, consistent with today’s opinion, consider whether to award attorney’s fees for the defense to Greer’s action to remove the lis pendens. See Miss.Code Ann. § 11-55-5(1) (“the court shall award ... reasonable attorney’s fees and costs against any party or attorney if the court ... finds that an attorney or party ... asserted any claim or defense, that is without substantial justification.”) (emphasis added).

II. Whether the trial court erred in granting Greer’s motion for summary judgment on Hooker’s counterclaim.

¶ 24. In his second issue on appeal, Hooker claims the trial court erred in finding his counterclaim time-barred by the three-year statute of limitations and granting Greer’s motion for summary judgment. Hooker argues that his claim is one for a constructive trust and that such claims are subject to the ten-year statute of limitations found in Mississippi Code Section 15-1-39 (Rev.2003). We hold that Hooker has not made out a claim for a constructive trust, and we therefore affirm the trial court.

¶ 25. Mississippi Code Section 15-1-39 provides that “[b]ills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue.... ” Miss.Code Ann. § 15-1-39 (Rev.2003). The ten-year statute of limitations, applicable to constructive trusts, applies only to claims which are “purely and exclusively equitable.” Winters v. AmSouth Bank, 964 So.2d 595, 599 (Miss.2007) (quoting Alvarez v. Coleman, 642 So.2d 361, 373 (Miss.1994)). Claims which seek a legal remedy, on the other hand, are subject to the general three-year statute of limitations, unless otherwise provided. Winters, 964 So.2d at 599.

¶ 26. In Wholey v. Cah-Maine Foods, Inc., 530 So.2d 136, 137 (Miss.1988), two limited partners sued general partners, alleging the general partners had been misappropriating funds from the partnership through self-dealing and had been making and concealing profits. The plaintiffs alleged the general partners had breached their fiduciary duties to the partnership, and the plaintiffs requested a partnership accounting and the imposition of a constructive trust. Id. at 139-140. The Court noted that fiduciaries can be held as constructive trustees with respect to “secret profits or commissions obtained by the violation of a confidence or duty....” Id. at 140 (quoting 76 Am.Jur.2d Trusts § 232, 455 (1975)). Finding that the claim was one for a constructive trust based on the defendants’ breach of fiduciary duties and retention of secret or hidden profits, the Court applied the ten-year statute of limitations. Id. at 140.

¶ 27. In Winters v. AmSouth Bank, 964 So.2d 595, 596 (Miss.App.2007), income beneficiaries of testamentary trusts sued a bank, alleging breach of fiduciary duty for actions taken with respect to the trust property. After the trial court held the plaintiffs’ claims barred by the general six-year statute of limitations, the plaintiffs appealed, arguing that their claim should be subject to the ten-year statute of limitations found in Section 15-1-39. Id. at 598. In affirming the trial court, the Court found the plaintiffs’ claims to be of a legal, rather than equitable, nature. Id. at 599. The Court held, “the [plaintiffs] do not seek to impose a constructive trust. Instead, they seek purely legal relief, namely, compensatory and punitive money damages in the amount of $180,000,000.” Id.

¶ 28. Unlike the plaintiffs’ claim in Wholey, Hooker’s claim is not “purely and exclusively equitable.” In his counterclaim, Hooker alleged that Greer had been unjustly enriched and that “[t]he Court should impose a constructive trust or equitable lien on all funds or properties held by Counterdefendant.” However, these assertions notwithstanding, it is clear that Hooker seeks only a monetary judgment to compensate him for his alleged losses. In his counterclaim, he alleges to have suffered “financial losses in the sum of $141,000.” Furthermore, in his request for relief, Hooker asserts that he is demanding judgment “in the amount of $141,000, together with interest and costs.” Hooker did not request a partnership accounting, nor does he claim a one-half interest in the Prairie Point Towhead and Lee Towhead Island properties, or any other partnership property. Rather, he seeks only a return of his money. It is plain that, while he couches his claim in terms of a constructive trust, Hooker seeks only compensation for his alleged losses in the parties’ failed business venture. A compensatory money damage award is a remedy at law. See Winters, 964 So.2d at 599 (holding compensatory money damages to be “purely legal relief’). As such, Hooker’s claim is not “purely and exclusively equitable.” See id. The trial court correctly found that Hooker’s claim was subject to the general three-year statute of limitations and, thus, time-barred.

CONCLUSION

¶ 29. We affirm the trial court’s finding that the filing of the Us pendens was without substantial justification. However, the trial court based its award of attorney’s fees on the baseless filing of the lis pen-dens, which is an improper reading of the LAA. Accordingly, we vacate the trial court’s award and remand for further proceedings to determine, under the Litigation Accountability Act, the propriety of the defense to the complaint to remove cloud on title.

¶ 30. Finally, we hold that Hooker’s counterclaim is subject to the three-year statute of limitations and, thus, is time-barred. Accordingly, we affirm the trial court’s grant of summary judgment to Greer on Hooker’s counterclaim.

¶ 31. AFFIRMED IN PART; REVERSED AND VACATED IN PART; AND REMANDED.

CARLSON, P.J., LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND RANDOLPH, J.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 32. I agree that the trial court correctly dismissed Hooker’s counterclaim, but I disagree that the Litigation Accountability Act (LAA), specifically Mississippi Code Section 11-55-5(1), prevented the trial court’s imposition of sanctions against Hooker for his filing of the lis pendens notice. While the Legislature limited the scope of the statute to “actions” or “defenses,” Rule 11 of the Mississippi Rules of Civil Procedure contains no such limitation. Rule 11(b) provides:

(b) Sanctions. If a pleading or motion is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading or motion had not been served. For wilful -violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted. If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.

(Emphasis added.) Thus, notwithstanding the language of Section 11-55-5(1), the chancellor had authority to sanction Hooker for filing a frivolous lis pendens notice. Accordingly, I would affirm the judgment in toto, and for this reason, respectfully concur in part and dissent in part.

DICKINSON, P.J., AND RANDOLPH, J., JOIN THIS OPINION.

      .Miss.Code Ann. § 11-47-3 (Rev.2002). The purpose of a lis pendens is "to give notice to the world of an alleged claim of a lien or interest in the property.” Aldridge v. Aldridge, 527 So.2d 96, 99 (Miss.1988).

      . Hooker never filed such a lawsuit.

      . Hooker did not file a lis pendens with the Holmes County Chancery Clerk.

      . Greer did produce a copy of this letter, however the copy is not signed, and Hooker denies receiving it.

      . Miss.Code Ann. § 11-55-5 (Rev.2002).

      .It is undisputed that Hooker was acting without counsel when he filed the lis pendens.

      . Even though Hooker already had cancelled the Us pendens, the court, in its judgment, ordered the lis pendens to be cancelled. Hooker's appeal concerns only the portion of the judgment awarding attorney's fees.

      . Greer initially filed a Motion to Dismiss on Hooker's counterclaim. Hooker's response to this motion referenced certain matters outside the pleadings. Because the court determined these matters went to the heart of the issue of Hooker’s counterclaim and Greer’s motion, and in accordance with Mississippi Rule of Civil Procedure 12(b), the court ordered that Greer's motion be amended to a Motion for Summary Judgment.

      .Hooker asserted that he was "entitled to partial summary judgment that there was indeed a partnership....” The court interpreted this as a motion for partial summary judgment, and denied as much. This issue is not before the Court on appeal.

      . Hooker appeals, in part, from a grant of partial summary judgment. Despite this, the case is proper for appellate review. Greer’s motion on the lis pendens issue was for “partial” summary judgment because Hooker's counterclaim was still pending. Greer requested the court enter a Rule 54(b) final judgment, but the court’s judgment on Greer's motion did not contain a Rule 54(b) certification. However, when the court granted Greer's Motion for Summary Judgment on Hooker’s counterclaim, the court disposed of the remaining claims in the action. When taken together, the court's orders dispose of all claims against all parties, making the case proper for appeal. See Calvert v. Griggs, 992 So.2d 627, 631 (Miss.2008) ("An appeal to this Court may be taken as a matter of right only after the trial court disposes of all the claims against all defendants.”).

      . The trial court’s judgment includes the following language:
      ... the lis pendens filing had no basis in law or fact and was clearly intended to harass.... His frivolous claim through the filing of the lis pendens in Carroll County, Mississippi, was without substantial justification .... As a result of Mr. Hooker’s frivolous lis pendens filing ....
      (Emphasis added.)

      . Hooker does not dispute that, if his claim is subject to the three-year statute of limitations, his claim is time-barred. Similarly, Greer does not dispute that Hooker’s claim would not be time-barred, if it is subject to the ten-year statute of limitations.

      . Mississippi Code Section 15-1-49 provided for a six-year period of limitations for claims arising before July 1, 1989. The statute provides for a three-year period of limitations for claims arising on or after this date.


author: CHANDLER, Justice, KITCHENS, Justice,

text:
    TRUSTMARK NATIONAL BANK, Frank Hart and Alvis Hunt v. C. Brent MEADOR, M.D. Mississippi Baptist Health Systems, Inc., C. Gerald Cotton, Lu Harding, Charles Harrison, Eric A. McVey, III, M.D., Kurt Metzner, James P. Wigley, Trustmark National Bank, Frank Hart and Alvis Hunt v. C. Brent Meador, M.D.
    Nos. 2009-IA-01939-SCT, 2009-IA-01940-SCT.
    Supreme Court of Mississippi.
    March 8, 2012.

      Brian C. Smith, William F. Ray, Jackson, attorneys for appellants.
    Michael S. Allred, attorney for appellee.
    D. Collier Graham, Jackson, Rex Morris Shannon, III, Jeremy Luke Birdsall, attorneys for appellants.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On August 31, 2004, Dr. Carroll B. Meador filed his Complaint against Mississippi Baptist Health Systems, Inc. (MBHS), Trustmark National Bank (Trustmark), and Doe Defendants 1 through 10, for breach of fiduciary duties, interference with fiduciary duties, interference with contract rights, interference with prospective business advantage, intentional infliction of emotional distress, deceit, fraud, and retaliatory discharge. On December 30, 2004, Meador filed an Amended Complaint, adding as defendants Central Medical Management, Inc.; Jackson Medical Clinic, Inc.; Jackson Medical Clinic, P.A.; Jackson Medical Clinic, LLC; Premier Medical Management of Mississippi, Inc.; James C. Bethea; William A. Causey, M.D.; C. Gerald Cotton; Lu H. Harding; Charles Harrison; Frank Hart; Alvis Hunt; Eric A. McVey, III, M.D.; Kurt W. Metzner; M. Kent Strum; James F. Wigley; and Doe Defendants 1 through 40; and adding as causes of action conspiracy, gross negligence, state-law antitrust claims, tort arising out of contract, and breach of covenants of good faith and fair dealing.

¶2. On February 3, 2005, Defendants Alvis Hunt and Frank Hart filed a notice of removal to the United States District Court for the Southern District of Mississippi. In an order filed March 9, 2007, the district court granted remand of the case, finding the federal bankruptcy proceedings in the case had been concluded and only state claims remained. On January 3, 2008, Trustmark, Hunt, and Hart filed a motion for summary judgment and motion to dismiss. MBHS filed a motion for summary judgment on February 15, 2008. On August 20, 2008, Meador filed a memorandum in opposition to summary judgment, along with an affidavit of Meador. On December 19, 2008, MBHS filed a motion to strike portions of Meador’s affidavit. In a hearing on February 19, 2009, the trial court judge denied the motion to strike. Arguments on the summary judgment motions also were presented at the February 19, 2009, hearing, and on July 2, 2009, the court issued an order denying defendants’ motions for summary judgment and motions to dismiss. On February 11, 2010, this Court issued an order staying the proceedings and granting defendants’ petition for interlocutory appeal on the trial court’s denial of summary judgment and motion to strike.

¶ 3. We find that the trial court abused its discretion in refusing to strike portions of Meador’s affidavit. We also find the trial court erred in denying Trustmark and MBHS’ motions for summary judgment. Therefore, we reverse the denial of the motion to strike the portions of the affidavit and reverse the trial court’s denial of summary judgment in favor of Trustmark and MBHS. We find the other issues presented to be without merit.

FACTS

¶ 4. Meador’s relationship with MBHS began in the 1990s when he was employed as the Medical Director of the Chemical Dependency Center of Mississippi Baptist Medical Center, Inc. (MBMC), an affiliate of MBHS. In that capacity, in 1996, Meador founded Byram Family Medical Clinic, P.A., in Byram, Mississippi, and Mobile Physicians’ Services, Inc. A dispute arose between Mea-dor and MBHS, which led to settlement negotiations between the parties. During those settlement negotiations, Meador sent MBHS a letter on February 17, 1999, with a proposed complaint, which listed as defendants MBHS; MBMC; Farris Consultants, Inc.; Brent Farris, and C. Gerald Cotton. The proposed complaint alleged fraud in the inducement, promissory estoppel, detrimental rebanee, intentional infliction of emotional distress, breach of contract, breach of implied covenant of good faith and fair dealing, conversion, unfair competition, interference with business relations, tortious breach of contract, and unjust enrichment. In August 1999, Meador and MBHS agreed to a settlement in which MBHS paid Meador $352,500. The settlement agreement contained a mutual-release clause and covenant not to sue.

¶ 5. A large factor in the dispute between MBHS and Meador was a $230,000 line of credit from Trustmark, taken out by Meador. After Meador defaulted on the loan, Trustmark filed a complaint against Meador on May 21, 1998, in trial court, asking for $243,828.35 in damages. In response, on July 15,1999, Meador filed an answer, setoff, and counterclaim against Trustmark, alleging breach of contract, conversion, breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, interference with business relations, invasion of privacy, and negligence, and asking for punitive damages of at least $1 million on top of $350,000 in economic losses. On July 10, 2001, the trial court judge entered an order along with a memorandum opinion, granting summary judgment in favor of Trustmark against Meador. On September 7, 2001, a final judgment was entered, granting summary judgment against Meador, and ordering Meador to pay Trustmark $308,839.58. Meador filed a notice of appeal, which ultimately was dismissed.

¶ 6. Meador filed a petition for bankruptcy on June 6, 2002. On July 7, 2004, the bankruptcy court issued a discharge of some of Meador’s debts, including the entire judgment in favor of Trustmark. Less than two months later, Meador filed complaints against Trustmark and MBHS.

¶ 7. In response to motions for summary judgment by MBHS and Trustmark, Mea-dor submitted a memorandum in opposition to those motions, along with an affidavit. In the affidavit, Meador asserted that he did not become aware of any fraudulent activities between MBHS and Trustmark until 2004, while MBHS and Trustmark were under federal investigation. Meador claimed he learned this information in 2004 from Brent Farris, a former “principle employee or managing consultant of MBHS,” who had “a significant responsibility for transactions which I carried out with them.” Meador further asserted that Far-ris had informed him that:

[T]here had been an agreement between MBHS and Trustmark National Bank to exert financial duress upon me in order to deprive me of my medical clinic in Byram, Mississippi and also Mobile Physicians Services, a company I had organized. Mr. Farris informed me that there are available through the United States Department of Justice taped conversations between Trustmark and MBHS confirming this fact.

Meador had to submit Farris’s possible testimony by affidavit because, at the time of the affidavit and at the time of the hearing, Farris was a fugitive unable to be deposed.

¶8. At the February 19, 2009, hearing on motions by MBHS, Hunt, Hart, and Trustmark for summary judgment, and to strike portions of an affidavit submitted by Meador, counsel for MBHS argued that Meador’s complaint in this case alleged the same claims-based on the same facts-that were alleged in a 1999 draft complaint sent to MBHS. MBHS argued that the 1999 dispute between Meador and Trustmark was settled for $352,500, with a mutual-release agreement, releasing both sides from any future claims. MBHS also stated that the motion to strike should have been granted for three reasons: (1) Mea-dor’s affidavit contained hearsay statements; (2) it was not based on Meador’s knowledge; and (3) “there were conclu-sionary statements in the affidavit with no factual support.” Meador responded by asserting that Farris would have supplied the information on which his affidavit was based, but that he had been out of the country and unreachable at the time. Meador also argued that the mutual-release agreement presented by MBHS was not an authentic document, because the “type font on the pages that he supposedly initialed is different from the others.”

STANDARD OF REVIEW

¶ 9. This consolidated case was petitioned to this Court based on the following: 1) the trial court’s order denying the motion to strike portions of Meador’s affidavit; and 2) the trial court’s order denying summary judgment in favor of Trustmark and MBHS. A court’s grant or denial of a motion to strike an affidavit is subject to an abuse-of-discretion standard of review. Schmidt v. Catholic Diocese of Biloxi 18 So.3d 814, 832 (Miss.2009). This Court reviews a trial court’s grant or denial of a motion for summary judgment under a de novo standard of review. Young v. Smith, 67 So.3d 732, 741 (Miss.2011).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ITS REFUSAL TO STRIKE PORTIONS OF MEA-DOR’S AFFIDAVIT BASED ON HEARSAY.

¶ 10. The trial court abused its discretion in denying Trustmark’s and MBHS’ motions to strike parts of Mea-dor’s affidavit. In response to Trust-mark’s and MBHS’ motions for summary judgment, Meador relied solely upon his own affidavit to support his theories of fraud and fraudulent concealment. Meador’s only evidence to support his claim for fraudulent concealment is based on what he learned from Brent Farris. This Court finds that these statements are hearsay, not personal knowledge. In his affidavit, Meador claimed that Trustmark and MBHS conspired against him to damage his financial interests. Specifically, Mea-dor stated that it was his “belief that Trustmark and MBHS are still actively engaged in a common plan and scheme to damage [his] business, professional practice, credit, reputation, and other business opportunities.” Meador stated that, in 2004, he was told by former MBHS consultant Brent Farris that Trustmark and MBHS had entered into a conspiracy to damage Meador’s financial interests.

¶ 11. Pursuant to Mississippi Rule of Civil Procedure 56(e), “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the matter stated therein.” Miss. R. Civ. P. 56(e) (emphasis added). “While most affidavits are hearsay, they are nevertheless properly considered on summary judgment motions as long as they are based on personal knowledge and set forth facts such as would be admissible in evidence.” Levens v. Campbell, 733 So.2d 753, 758 (Miss.1999) (citations omitted). Therefore, portions of affidavits that contain inadmissable testimony or allegations that are not based on personal knowledge must be struck and cannot be considered part of the summary judgment record.

¶ 12. While it may be his “belief,” Mea-dor has no proof based on personal knowledge that Trustmark and MBHS ever entered into a conspiracy. Meador based his allegations upon statements made by Far-ris, a former consultant for MBHS. Specifically, Meador stated that:

Brent Farris informed me in 2004 at about the time of my Amended Complaint, for the first time, that there had been an agreement between MBHS and Trustmark National Bank to exert financial duress upon me in order to deprive me of my medical clinic in Byram, Mississippi and also Mobile Physicians Services, a company I had organized. Mr. Farris informed me that there are available through the United States Department of Justice taped conversations between Trustmark and MBHS confirming the fact.

These statements are inadmissable hearsay and should be excluded from Meador’s affidavit. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Although there are some exceptions to the hearsay rule, this hearsay does not fall under any of the recognized exceptions provided in the Mississippi Rules of Evidence.

¶ 13. At the time he filed his complaint and, subsequently, his amended complaint, Meador had no firsthand knowledge or evidence that Trustmark and MBHS had engaged in fraud or fraudulent concealment. These alleged statements by Farris cannot be verified and therefore do not create a genuine issue of material fact for several reasons. First, it is undisputed that Farris was never an employee of MBHS. Second, Farris stopped performing consulting work for MBHS in 1998. Lastly, Farris is a convicted felon who pleaded guilty to bankruptcy fraud. At the time of the summary judgment hearing, he was a fugitive from justice. In Meador’s Opposition to Summary Judgment, he did not submit an affidavit from Farris. Instead, he “furnishes his own sworn statement that this is what his [witness] would say. But such is pure hearsay and Rule 56(e) declares such to be incompetent in support of — or in opposition to— summary judgment.” Walker By & Through Walker v. Skiwski, 529 So.2d 184, 187 (Miss.1988).

¶ 14. This Court finds that the trial court abused its discretion in denying Trustmark’s and MBHS’ motions to strike portions of the affidavit.

The purpose of a motion for summary judgment is to determine the need for a trial. To serve this purpose, the evidence offered in support of or in opposition to the motion must be admissible at trial. If inadmissible evidence could defeat a summary judgment motion but not support a jury verdict, the purpose of Rule 56 — to avoid unnecessary trials — would not be served.

Jeffrey Jackson, Admissibility at Trial of Materials Presented, Mississippi Civil Procedure § 11:22 (Rev.2009). Given the fact that these portions of the affidavit are hearsay, this Court reverses the order of the trial court denying Trustmark’s and MBHS’ motions to strike portions of Mea-dor’s affidavit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING TRUST-MARK’S AND MBHS’ MOTIONS FOR SUMMARY JUDGMENT.

¶ 15. These statements are the only evidence supporting Meador’s fraudulent-concealment claim and should be excluded based on hearsay. Without these statements, Meador has no valid claims against Trustmark or MBHS. Therefore, we find that the trial court erred in its denial of summary judgment in favor of Trustmark and MBHS.

¶ 16. Meador’s claims arise from the same series of promissory notes he executed with Trustmark in the late 1990s. Therefore, all of Meador’s claims are time-barred by the one-year and three-year statute of limitations of Mississippi Code Sections 15-1-35 and 15 — 1—49(1). Miss. Code Ann. §§ 15-1-35 and 15-1-49(1) (Rev.2003). In his complaint, filed in August of 2004, Meador listed intentional infliction of emotional distress as a cause of action. In accordance with Mississippi Code Section 15-1-35, the statute of limitations for an intentional-infliction-of-emotional-distress claim is one year after the cause of action accrued. Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 423 (Miss.2010). Meador’s claim accrued in 1999 at the latest. Meador also listed contract-related claims in his 2004 complaint. These also accrued in 1999 at the latest. Pursuant to Mississippi Code Section 15-1-49(1), “[i]n a contractual claim, a cause of action accrues on the date of actual injury, the date the facts occurred which enable the Plaintiffs to bring a cause of action.” CitiFinancial Mortgage Co., Inc. v. Washington, 967 So.2d 16, 19 (Miss.2007) (citations omitted). Trustmark and MBHS both used these statutes of limitations as a defense in their motions for summary judgment. We agree that the statute of limitations bars all claims listed in Meador’s complaint.

¶ 17. In his attempt to toll the statute of limitations, Meador claims that Trustmark and MBHS fraudulently concealed the causes of action listed in his complaint. Section 15-1-67 of the Mississippi Code 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.

Miss.Code Ann. § 15-1-67 (Rev.2003). When a plaintiff uses fraudulent concealment to toll the statute of limitations, he must prove the necessary elements of fraudulent concealment in order to defeat a defendant’s motion for summary judgment. Sanderson Farms Inc. v. Ballard, 917 So.2d 783, 790 (Miss.2005). To establish a claim of fraudulent concealment, “there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.” Reich, 526 So.2d at 552 (citations omitted). The party is required to show that (1) some affirmative act of conduct was done and prevented discovery of the claim; and (2) due diligence was performed on its part to discover the claim. Sanderson Farms Inc., 917 So.2d at 790. This Court has also has held that fraudulent concealment “must be pled with specificity and particularity under [Miss. R. Civ. P.] 9(b).” State Indus., Inc. v. Hodges, 919 So.2d 943, 946 (Miss.2006). Meador did not satisfy either requirement, nor did he plead any claim with particularity. Therefore, this Court reverses the trial court’s ruling, thereby granting Trust-mark’s and MBHS’ motions for summary judgment.

A. Meador did not point to any affirmative act by Trustmark and MBHS that prevented him from discovering his claims.

¶ 18. Meador has not presented any evidence that Trustmark or MBHS performed any act to prevent discovery of his alleged claims. Meador states that “he did not have and had no means to obtain relevant information” regarding his fraudulent-concealment claim. However, he cannot satisfy the “affirmative act” requirement with mere allegations that the other party had complete control of the information. See Sanderson Farms Inc., 917 So.2d at 790. “The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must set forth specific facts showing a genuine issue for trial.” Zurich Am. Ins. Co. v. Goodwin, 920 So.2d 427, 432 (Miss.2006) (citations omitted).

¶ 19. With regard to Meador’s claims against Trustmark, Trustmark argues that the claims not involving conspiracy are barred by the doctrine of res judicata. In his opposition to summary judgment, Mea-dor offered no evidence to show how Trustmark or MBHS fraudulently concealed these claims. The only evidence he provided was his own affidavit, which consisted of hearsay and speculation. Therefore, Meador did not meet the first requirement for fraudulent concealment.

B. Meador did not show he exercised due diligence to discover the claims.

¶ 20. Meador did not present any evidence at the summary judgment hearing to show he exercised due-diligence in discovering the present claims. He merely stated he was unable to discover any information about the alleged claims. He did not show any conduct that would be considered an exercise of due diligence. This Court has held that a plaintiff cannot satisfy the due diligence requirement if he had information regarding the claim and failed to take action before the statute of limitations expired. Andrus v. Ellis, 887 So.2d 175, 181 (Miss.2004). In February 1999, Meador’s attorney stated that he had “significant evidence that other parties, including Trustmark Bank, have colluded with MBMC in seeking to destroy Dr. Meador and take his business from him.” Meador had notice of an alleged conspiracy between Trustmark and MBHS in 1999. However, Meador waited five years to bring an action against both Trustmark and MBHS. Meador’s lack of due diligence bars any claim based on fraudulent concealment.

III. THE MUTUAL RELEASE AND TERMINATION AGREEMENT BETWEEN MEADOR AND MBHS

¶ 21. Meador attempts to use the release agreement that he signed with MBHS as evidence of fraud. Specifically, Meador claims that he did not sign the portions of the Mutual Release and Termination Agreement that discussed the prohibition of future claims against MBHS. In addition, Meador states he cannot provide his own copy of the agreement he signed because he “turned over various records to the Federal Bureau of Investigation and the United States Attorney who were investigating MBHS at the time.” This issue is without merit because the release agreement is irrelevant if Meador cannot provide evidence of fraudulent concealment. Without fraudulent concealment, all of Meador’s claims are time-barred by the statute of limitations.

CONCLUSION

¶ 22. We find that the trial court abused its discretion in refusing to strike portions of Meador’s affidavit. The trial court also erred in denying Trustmark’s and MBHS’ motions for summary judgment. Therefore, this Court reverses the denial of the motion to strike portions of Meador’s affidavit and reverses the trial court’s denial of summary judgment rendering summary judgment in favor of Trustmark and MBHS.

¶ 23. REVERSED AND RENDERED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR., J. WALLER, C.J., AND PIERCE, J., NOT PARTICIPATING.

KITCHENS, Justice,

Concurring in Result Only:

¶ 24. I agree that Dr. Meador’s claims are barred by the statute of limitations, and that he has not demonstrated any fraudulent concealment that would otherwise toll the limitations period. Thus, the trial court erred by denying the defendants’ motions for summary judgment. However, because I cannot fully join the majority’s analysis, and because it addresses issues that are not necessary to the disposition, I respectfully concur in result only.

¶ 25. First, clarity requires a brief discussion of the facts and procedural history of this case. In 2004, Dr. Meador sued three sets of defendants: the Trustmark defendants, the Mississippi Baptist Health Systems, Inc. (MBHS) defendants, and a third set of defendants who are not parties to this appeal. Dr. Meador asserted various claims against the defendants, all arising from allegations that the defendants had conspired to deprive Dr. Meador of his medical practice.

¶ 26. Notably, the 2004 lawsuit was not the first time Dr. Meador had accused Trustmark and MBHS of conspiring to deprive him of his business. In the 1990s, Dr. Meador had acquired various loans from Trustmark in connection with his By-ram clinic. In 1996, MBHS purchased that clinic, and, according to Dr. Meador, MBHS had induced him to sell the clinic to MBHS by promising to purchase his company, Mobile Physician Services, Inc. (MPS), for an amount that would have covered his indebtedness to Trustmark. Thereafter, on September 29, 1997, Dr. Meador renewed his Trustmark debt by executing a promissory note in the amount of $230,000; but, at that time, MBHS had not yet purchased MPS.

¶ 27. On May 21, 1998, Trustmark sued Dr. Meador in the Hinds County Circuit Court, First Judicial District, seeking to collect on the $230,000 promissory note. In response, on July 15, 1999, Dr. Meador filed a setoff and counterclaims, alleging, in relevant part, that:

During early 1996 Trustmark agreed to extend a line of credit of up to $50,000.00 to Meador for the purchase and operation of a medical clinic located in Byram, Mississippi.
Based upon that loan commitment, Dr. Meador entered into an agreement to purchase and lease the facility in Byram and to operate it as a medical clinic in association with [MBHS].
During the course of purchase and operation of the clinic by Meador, Trustmark refused to loan the full amount of the line of credit which it had given to Dr. Meador. As a result, Dr. Meador’s clinic suffered serious cash flow difficulties which were a significant contributing cause of Dr. Meador’s forced sale of his clinic to [MBHS].
During the course of the purchase and operation of the Byram clinic, Trust-mark also permitted another entity, Central Medical Management, Inc.,[] to borrow money against the credit line which it had established for Dr. Meador without the knowledge or permission of Dr. Meador.

¶ 28. On February 17, 1999, while the action between Trustmark and Meador was pending, Dr. Meador’s attorney sent a draft complaint, with a cover letter, to counsel for MBHS. The complaint and cover letter alleged, in essence, that MBHS had engaged in a scheme “to strip the Byram clinic and MPS away from Dr. Meador at salvage prices, leaving Dr. Mea-dor broke and essentially in a position of serfdom to [MBHS].” The letter went on to say “[w]e also have significant evidence that other parties, including Trustmark Bank, have colluded with [MBHS] in seeking to destroy Dr. Meador and take his business from him.” (Emphasis added.) Dr. Meador also offered, as part of a proposed settlement, to “turn over [MPS] to [MBHS].” It is undisputed that in August 1999, Meador and MBHS entered into a settlement agreement in connection with the letter of February 17, 1999, but the parties disagree over the terms of that agreement.

¶ 29. As for the case between Dr. Mea-dor and Trustmark, the trial judge granted summary judgment in favor of Trustmark on July 11, 2001. In connection with the final judgment in favor of Trustmark, the trial judge entered an eighteen-page opinion, finding that Dr. Meador had waived all defenses and counterclaims. According to the opinion, “Meador’s own testimony established] that he knew or should have known of the claims and defenses potentially available to him set forth in his Amended Counterclaim prior to executing a final renewal note.” In other words, the trial court found that Dr. Meador knew or should have known of his claims against Trustmark before September 29, 1997. Dr. Meador appealed the judgment to this Court, but the appeal was dismissed voluntarily at his request under Mississippi Rule of Appellate Procedure 42(b).

¶ 30. Returning to the present case, Trustmark and MBHS filed separate motions for summary judgment, arguing that, because the 2004 complaint was based on alleged conduct that had occurred in 1999 or before, Dr. Meador’s claims were barred by res judicata, accord and satisfaction, and the statute of limitations. In response, Dr. Meador argued that: the copy of the August 1999 release that was attached to the defendants’ motions was not authentic; the release did not extend to the claims asserted in the 2004 complaint; and that Dr. Meador had not discovered the latest cause of action until “shortly before December 2004;” thus, the statute of limitations had been tolled.

¶ 31. Following a brief hearing, the trial judge summarily denied Trustmark’s and MBHS’ motions for summary judgment, and both sets of defendants successfully petitioned this Court for interlocutory review. The two appeals were consolidated by this Court.

¶ 32. As for the merits of this appeal, Dr. Meador’s claims against Trustmark and MBHS clearly are barred by the statute of limitations. Although Dr. Meador’s affidavit vaguely referenced an ongoing conspiracy between Trustmark and MBHS that caused him harm, all of the acts alleged in his complaint refer to conduct that occurred in 1999 and before. Thus, Dr. Meador’s only defense to the defendants’ argument, that his 2004 complaint was filed outside the statute of limitations, is that Trustmark and MBHS somehow acted fraudulently to conceal his cause of action.

¶ 33. Mississippi Code Section 15-1-67 provides:

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.

Based on Dr. Meador’s February 17, 1999, letter to MBHS and the attached draft complaint, as well as his pleadings in response to Trustmark’s collection action, Dr. Meador knew in 1999 of the facts underlying his 2004 complaint. Despite his claim that he “first learned of the facts and circumstances pleaded in the Amended Complaint” in 2004, he had made allegations of a conspiracy between Trustmark and MBHS as early as February 17, 1999. The letter bearing that date from his attorney to MBHS plainly alleged, “[w]e also have significant evidence that other parties, including Trustmark Bank, have colluded with [MBHS] in seeking to destroy Dr. Meador and take his business from him.” Dr. Meador has yet to explain how the conspiracy he referred to in 1999 is different from the conspiracy alleged in his 2004 complaint. Thus, his case against Trustmark and MBHS is barred by the statute of limitations.

¶ 34. Even with the testimony that Meador expected from Brent Farris, Dr. Meador cannot demonstrate any fraudulent activity on behalf of Trustmark and MBHS that would have prevented his discovery of the alleged conspiracy. According to Dr. Meador’s affidavit, Farris could have provided evidence that “there had been an agreement between MBHS and [Trustmark] to exert financial duress upon me in order to deprive me of my medical clinic in Byram, Mississippi and also Mobile Physician Services, a company I had organized.” However, it is apparent from his prior dealings with Trustmark and MBHS that he knew of the alleged conspiracy in 1999. While Farris’s anticipated testimony might have offered more support for his claims, Dr. Meador did not discover any new causes of action through Farris. Thus, whether the trial court erred by refusing to strike this portion of Dr. Meador’s affidavit does not affect the outcome.

¶ 35. Finally, as for Dr. Meador’s arguments regarding the release, I disagree that he is attempting to use it “as evidence of fraud.” Maj. Op. 21. Although his brief is confusing, his arguments about the authenticity of the document are in response to MBHS’ argument that the release barred any claims under the doctrine of accord and satisfaction. MBHS attempted to make this argument below, but on appeal, focuses on the statute of limitations. As with Farris’s testimony, the validity of the release does not affect the statute of limitations.

¶ 36. For the foregoing reasons, Dr. Meador’s claims against Trustmark and MBHS are barred by the statute of limitations. Because I cannot fully join the majority’s analysis of the issues, I respectfully concur in result only.

LAMAR, J„ JOINS THIS OPINION.

      . Meador also submitted a letter from MBHS' attorney Jack Dunbar, but this letter is relevant only to the terms of the agreement between MBHS and Meador and does not support any of Meador’s allegations of fraud.

      . Although Meador did not bring a conspiracy claim against Trustmark or MBHS in the late 1990s, his attorney stated in a letter dated February 1999 that he had “significant evidence that other parties, including Trustmark Bank, have colluded with MBMC in seeking to destroy Dr. Meador and take his business from him.”

      . Fraudulent concealment would toll the statute of limitations on Meador's claims.

      . With the exception of claims involving fraud or conspiracy, all alleged claims listed in the complaint accrued in February 1999 at the latest. It is undisputed that Meador had no involvement with either Trustmark or MBHS after August 2009. Meador’s claims include: (1) breach of fiducial duties; (2) interference with fiduciary duties; (3) interference with contract rights; (4) interference with prospective business advantage; (5) intentional infliction of emotional distress; (6) deceit; (7) fraud; (8) retaliatory discharge; (9) conspiracy; (10) gross negligence; (11) state law antitrust claims; (12) tort arising out of contract; and (13) breach of covenants of good faith and fair dealing.

      . See also Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 83-84 (Miss.2003); Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988).

      . Meador brought the other claims in 1999-2001 as counterclaims against Trustmark and was unsuccessful.

      . The Trustmark defendants are Trustmark National Bank, Frank Hart, and Alvis Hunt. The MBHS defendants are Mississippi Baptist Health Systems, Inc., C. Gerald Cotton, Lu Harding, Charles Harrison, Eric A. McVey, III, M.D., Kurt Metzner, and James P. Wigley. The defendants who are not parties to this appeal are Central Medical Management, Inc., Jackson Medical Clinic, Inc., Jackson Medical Clinic, P.A., Jackson Medical Clinic, LLC, Premier Medical Management of Mississippi, Inc., James C. Bethea, William A. Cau-sey, M.D., and M. Kent Strum.
      Unless otherwise noted in this opinion, "Trustmark” and "MBHS" refer to those entities and their individual agents/employees who were named as parties in the current lawsuit.

      . According to his 2004 compliant, Central Medical Management, Inc., was "a controlled affiliate of [MBHS] and Jackson Medical Clinic.”

      . Notably, in 1999, Dr. Meador was represented by the same law firm which filed the present complaint.


author: KITCHENS, Justice,

text:
    LAUREL FORD LINCOLN-MERCURY, INC. a/k/a Laurel Ford and Kia and Kia Motors America, Inc. v. Larry BLAKENEY.
    No. 2011-IA-00273-SCT.
    Supreme Court of Mississippi.
    March 8, 2012.

      Joseph Walter Gill, Rebecca B. Cowan, Jeremy Scott Gaddy, attorneys for appellants.
    Eugene Coursey Tullos, attorney for ap-pellee.
    BEFORE WALLER, C.J., KITCHENS AND KING, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In this product liability/breach of warranty case, the Court is asked to determine whether the trial judge abused his discretion in denying the defendants’ motion to transfer venue when the plaintiff sued in the county where the product was located when the alleged defects first appeared and not where the product was purchased or repaired. Finding that our general venue statute, Mississippi Code Section ll-ll-8(l)(a) (Rev.2004), requires that the case be brought in the county where the product was purchased and/or repaired, we reverse and remand the case for transfer to the proper venue.

Facts and Procedural History

¶ 2. Larry Blakeney, a resident of Smith County, filed a lawsuit in the Smith County Circuit Court against Laurel Ford Lincoln-Mercury, Inc. (“Laurel Ford”), and Kia Motors America, Inc. (“Kia”), alleging that the 2008 Kia Optima which Blakeney purchased from Laurel Ford was defective. Laurel Ford’s principal place of business is in Jones County, and Kia, the manufacturer, is a nonresident corporation.

¶ 3. Specifically, Blakeney alleged in his complaint that:

[Sjaid automobile was defective in materials and workmanship from the day of purchase in that the engine is defective. That the Plaintiff has taken the vehicle to the [Laurel Ford] on several occasions for repair of the same problem. Each time the Plaintiffs vehicle was at the Defendant’s place of business for repair, said vehicle was purported to be repaired, but, in fact, was never properly repaired.

Blakeney also alleged that the defendants “held [his] vehicle at [Laurel Ford] at 2018 Highway 15 North in Laurel, Mississippi, 39440, and told [him] that he could not leave with his vehicle unless he signed a Release.” According to the complaint, the vehicle “was warranted by the Defendants by written and expressed warranty from any and all defects in materials and workmanship.”

¶ 4. Laurel Ford and Kia filed separate motions, both seeking a change of venue from Smith County to Jones County. Following a brief hearing, the trial judge denied the motions, and the defendants successfully petitioned this Court for interlocutory review.

Discussion

¶ 5. The sole issue on appeal is whether the trial judge abused his discretion by denying the defendants’ motions for change of venue. We review a trial court’s grant or denial of a motion for change of venue for an abuse of discretion, but questions of law, such as interpretation of the general venue statute, are reviewed de novo. Hedgepeth v. Johnson, 975 So.2d 235, 237 (Miss.2008) (quoting Hayes v. Entergy Miss., Inc., 871 So.2d 743, 746 (Miss.2004); citing Champluvier v. State, 942 So.2d 145, 150 (Miss.2006)).

¶ 6. The general venue statute reads, in relevant part:

(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.

Miss.Code Ann. § 11 — 11—3(l)(a) (Rev. 2004). There is no dispute that Laurel Ford’s principal place of business is in Jones County or that Blakeney bought the vehicle in Jones County. Therefore, venue is proper in Smith County only in the event that county is “where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.” Miss.Code Ann. § 11 — 11— 3(l)(a)(i).

¶ 7. Blakeney argues in his brief that “a substantial event occurred [in Smith County] which caused the injury,” but he does not specify what event occurred in Smith County, only that “the defects became apparent to [him] in Smith County.” Blake-ney made the same argument at trial when defending the motions to transfer: “He lives in Taylorsville in Smith County. Shortly after he got the vehicle home, he started having some problems with it in Smith County, Mississippi.” The trial judge agreed with Blakeney, finding that “a substantial part of the claim originated in Smith County.” In the written order denying the defendants’ motion, the trial judge found that “a substantial alleged act or omission as complained of in the plaintiffs complaint was made in Smith County, Mississippi.”

¶ 8. We find that the trial judge erred in denying the defendants’ motions for change of venue. The case’s only connection to Smith County is that Blakeney resides there and that he began to notice the alleged defects while in Smith County. Blakeney has not identified “a substantial alleged act or omission” or “a substantial event” that occurred in Smith County, and merely experiencing unspecified problems or damages while the vehicle in question is situated in a particular county does not make that county the proper place to litigate his claim. Hedgepeth, 975 So.2d at 239 (citing Med. Assurance Co. of Miss. v. Myers, 956 So.2d 213, 219 (Miss.2007).

Conclusion

¶ 9. Because the plaintiff cannot point to “a substantial alleged act or omission” or “a substantial event” that occurred in Smith County, the trial judge abused his discretion by denying the defendants’ motions to transfer venue. Accordingly, we reverse the trial court’s ruling and remand the case for transfer to Jones County.

¶10. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ, CONCUR.


author: ROBERTS, J.,

text:
    Paul R. COOK, Appellant v. The HOME DEPOT and American Home Assurance Company, Appellees.
    No. 2009-WC-01551-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Rehearing Denied June 21, 2011.

      John Hubert Anderson, Hattiesburg, attorney for appellant.
    P. Sharkey Burke Jr., attorney for ap-pellees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Paul Cook claimed he was entitled to workers’ compensation benefits as a result of a back injury he sustained while moving cast-iron tubs for his employer, The Home Depot. Cook filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) and received compensation from Home Depot for his injury. He then filed a motion to review the cessation of his benefits alleging fürther medical treatment was necessary for his injury. An administrative judge (AJ) dismissed Cook’s claim for failing to file a completed prehearing statement. The dismissal order became final on December 26, 2006, at which point the one-year statute of limitations commenced to run. Throughout 2007, Cook failed to properly file a petition for his claim to be reinstated. In June 2008, Cook petitioned to reinstate the claim. The AJ found that the one-year statute of limitations barred the claim and denied his petition to reinstate his claim. After being properly petitioned, the full Commission affirmed the AJ’s order denying Cook’s petition. This decision was then affirmed on appeal by the Rankin County Circuit Court. Cook now appeals on the basis that the actions taken during the one-year period were sufficient to toll the statute of limitations and that his claim should not be barred. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 6, 2004, Cook filed his petition to controvert with the Commission alleging a back injury he had sustained while moving cast-iron bathtubs at The Home Depot, his place of employment. The Home Depot filed a B-31 Final Notice form with the Commission on August 6, 2004, providing Cook disability payments in the amount of $7,153.72.

¶ 3. Cook filed a motion to review the cessation of his benefits and payment of his medical bills on April 29, 2005, alleging further medical treatment was necessary. The Home Depot disputed Cook’s need for further treatment in its response to Cook’s motion, and on June 30, 2005, the AJ ordered an independent medical examination with The Home Depot to pay the costs associated with the examination.

¶ 4. On July 27, 2006, the AJ dismissed Cook’s claim for failure to file a completed prehearing statement pursuant to Commission Procedural Rule 5. Cook filed a petition to reinstate his claim and a pre-hearing statement, which the AJ denied on December 6, 2006, due to an improperly completed prehearing statement. Cook filed an amended prehearing statement on December 13, 2006, and also on January 8, 2007.

¶ 5. In June 2008, Cook’s attorney sent a letter to the Commission alleging that he had personally delivered a second amended petition to reinstate, which was attached to a prehearing statement, to them on July 21, 2007. Cook’s file with the Commission did not originally contain either of these documents. His file was updated with these documents dated July 21, 2007, but they only bore the official stamp date of June 17, 2008, the day the Commission received them.

¶ 6. The AJ dismissed Cook’s claim because the one-year statute of limitations under Mississippi Code Annotated section 71-8-53 (Rev.2000) ran from December 26, 2006, to December 26, 2007, and was not tolled by any action or filing. Cook filed an appeal with the full Commission. The full Commission affirmed the AJ’s decision to dismiss Cook’s claim. The Rankin County Circuit Court affirmed the dismissal of Cook’s claim as barred by the statute of limitations. Cook now appeals the dismissal raising the issue of whether the Commission erred in determining that his actions during the one-year period were insufficient to toll the statute of limitations.

STANDARD OF REVIEW

¶ 7. We defer to the Commission’s decision and reverse only when the Commission’s decision is not supported by substantial evidence. Levy v. Miss. Uniforms, 909 So.2d 1260, 1263-64 (¶ 11) (Miss.Ct.App.2005). However, a de novo review is conducted when reviewing questions of law, including a statute-of-limitations issue. James v. Bowater Newsprint, 983 So.2d 355, 358 (¶ 11) (Miss.Ct.App.2008).

DISCUSSION

¶ 8. Cook argues that the Commission erred in dismissing his claim because his filing of his notices of depositions, submitting an amended prehearing statement, and allegedly filing a petition to reinstate during the one-year statute-of-limitations period were sufficient to toll the statute of limitations. Cook primarily relies on two Mississippi Supreme Court decisions: Harper v. North Mississippi Medical Center, 601 So.2d 395 (Miss.1992), and ABC Manufacturing Corp. v. Doyle, 749 So.2d 43 (Miss.1999), to illustrate that action taken, besides filing a petition to reinstate, during the one-year period may be sufficient to toll the statute of limitations.

¶ 9. We begin our analysis of this issue by discussing the relevant statutes. When a claim is dismissed, the dismissal does not become final until twenty days after the order to dismiss is entered. Miss.Code Ann. § 71-3-47 (Rev.2000). The claimant may request review of his claim’s dismissal during the twenty-day period. Id. After the order becomes final, the Commission has continuing jurisdiction pursuant to Mississippi Code Annotated section 71-3-53. The statute, in pertinent part, states:

[T]he [Cjommission may, at any time prior to one (1) year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

Miss.Code Ann. § 71-3-53. This gives the claimant one year from the date of the last payment or from the date of the AJ’s final order to seek review of his claim. After the one-year period, any further review of the claim is barred by the statute of limitations.

¶ 10. For the purposes of Cook’s claim, the AJ dismissed his claim on December 6, 2006. Cook then had twenty days within which to petition for review before the dismissal was final. Cook failed to petition for review; instead, he submitted an amended pretrial statement. This action was not a sufficient alternative to a petition for review, so the AJ’s order became final on December 26, 2006, and the one-year statute-of-limitations period commenced to run. The one-year period ended on December 26, 2007. During this period, Cook did submit several notices of depositions and amended prehearing statements, but he did not petition to have his claim reinstated.

¶ 11. Cook’s attorney alleged that he had personally hand delivered a petition to reinstate, a prehearing statement, and a notice of deposition to the Commission on July 21, 2007. However, these documents were not in Cook’s file with the Commission when Cook’s attorney reviewed the file in June 2008. Cook’s attorney could only produce the documents dated July 21, 2007, without a stamp date indicating that they were received by the Commission at that time. The Court gives great deference to the fact-finding duty of the Commission and will not disturb its decision if there is substantial evidence in the record to support the findings. Harper, 601 So.2d at 397. We find that there is substantial evidence in the record to support the Commission’s decision that the statute of limitations was not tolled by Cook’s alleged filing of a petition to reinstate on July, 21, 2007, when no such filing appears in the record with the Commission.

¶ 12. Cook further argues that filing several notices of depositions and pre-hearing statements are sufficient to toll the statute of limitations. As stated above, he relies primarily on two cases, Harper and ABC Manufacturing Corp., to support his argument that actions outside of filing a petition to reinstate may be sufficient to toll the statute of limitations. In Harper, the Mississippi Supreme Court held that Margaret Harper’s complaint letter to the Commission during the one-year period was sufficient to toll the statute of limitations. Harper, 601 So.2d at 397. In ABC Manufacturing Corp., the supreme court held that Martha Jane Doyle’s new attorney’s petition for acceptance of representation, entry of appearance, and a copy of the previously filed notice of controversy filed during the one-year period was sufficient to toll the statute of limitations. ABC Mfg. Corp., 749 So.2d at 47 (¶ 17). In both cases, the supreme court allowed documents other than a petition to reinstate to toll the statute of limitations. In Harper, the supreme court held that the alternative documents were acceptable in the place of a petition to reinstate because the “[l]etter sufficiently articulates the nature of her claim and ... clearly expresses an intent to pursue whatever remedies might be available to her.” Harper, 601 So.2d at 397. In the case before us, Cook’s notices of depositions and amended prehearing statements were not sufficient to toll the statute of limitations because they do not provide the same level of information and notice that the supreme court found in the documents provided in Harper and ABC Manufacturing Corp.

¶ 13. In a factually similar case to the current case, Garcia v. Super Sagless Corp., 975 So.2d 267, 268 (¶3) (Miss.Ct.App.2008), this Court affirmed the denial of a petition to reinstate after the statute-of-limitations period had expired. In Garcia, the AJ dismissed the claim for failure to attach the required prehearing statement. After the dismissal became final, Justino Garcia continued to depose others and negotiate a settlement agreement with the employer and carrier. Id. at (¶¶ 3-4). After the one-year period had expired, Garcia attempted to reinstate his claim by filing a petition to reinstate. Id. at (¶ 5). The AJ denied Garcia’s petition to reinstate because it was barred by the one-year statute of limitations. Id. at (¶ 5). On appeal to this Court, we affirmed the Commission’s decision to deny the petition to reinstate. Id. at 268-69 (¶ 6). In the present case, Cook’s actions of filing notices of depositions and amended prehear-ing statements during the one-year period more closely resemble the actions taken m Garcia and not those in Harper and ABC Manufacturing Corp.

¶ 14. Because we find that Cook’s failed to timely file a petition to reinstate with the Commission and that the actions taken during the statute-of-limitations period were insufficient to toll the one-year period, we affirm the judgment of the Circuit Court of Rankin County which affirmed the Commission’s decision.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.