Windham v. LATCO of Miss., Inc.


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Docket Number: 2005-CA-02086-COA
Linked Case(s): 2005-CA-02086-SCT ; 2005-CA-02086-COA ; 2005-CT-02086-SCT ; 2005-CT-02086-SCT

Court of Appeals: Opinion Link
Opinion Date: 02-06-2007
Opinion Author: ROBERTS, J.
Holding: Affirmed

Additional Case Information: Topic: Property damage - Statute of repose - Section 15-1-41 - Fraudulent concealment - Section 15-1-67
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND IHSEE, JJ.
Non Participating Judge(s): CARLTON, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 09-30-2005
Appealed from: SCOTT COUNTY CIRCUIT COURT
Judge: Vernon Cotten
Disposition: SUMMARY JUDGMENT ENTERED.
Case Number: 2004-CV-190-SC-G

Note: This case was reversed and remanded by the Supreme Court on 1/17/2008. The SCT decision may be viewed at: http://www.mssc.state.ms.us/Images/Opinions/CO45774.pdf

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: STEVE WINDHAM, JAMES E. SMITH AND CHAD L. GARVIN




P. SHAWN HARRIS



 

Appellee: LATCO OF MISSISSIPPI, INC. AND FABRAL, INC. JUSTIN L. MATHENY, TIMOTHY D. MOORE, JOHN P. SNEED, JAMES W. SHELSON  

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Topic: Property damage - Statute of repose - Section 15-1-41 - Fraudulent concealment - Section 15-1-67

Summary of the Facts: Choctaw Maid Farms, Inc. undertook an expansion project that necessitated its farmers construct housing for additional chickens. The houses were designed and manufactured by Fabral, Inc., and Latco of Mississippi, Inc. acted as the general contractor during the construction. Soon after the houses were completed and occupied in 1995 and 1996, they began to leak. Steve Windham, James Smith, and Chad Garvin, chicken farmers for Choctaw, did not file their complaint until May 17, 2004. Fabral and Latco filed separate motions for summary judgment based on the statute of limitations. The court granted the motions, and the plaintiffs appeal.

Summary of Opinion Analysis: The plaintiffs argue that section 15-1-67 should toll the statute of repose codified at section 15-1-41. Fraudulent concealment does not toll a statute of repose. It is clear from section 15-1-67 that a successful claim of fraudulent concealment does set the date of accrual of the underlying cause of action to the time that it was, or should have been, discovered. Furthermore, the applicable statute of limitations for the underlying cause of action may be tolled to the date complying with section 15-1-67. It is equally clear that the six year limitation of section 15-1-41 is not affected by the date of accrual, and, by extension, not tolled by section 15-1-67. Therefore, a successful claim of fraudulent concealment does not toll the statute of repose. As it is undisputed that the plaintiffs’ claims were filed more than six years after the chicken houses were occupied, such claims are barred.


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