Winters, et al. v. AmSouth Bank
| Docket Number: | 2006-CA-00579-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-04-2007 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Right to jury trial - Miss. Const. art. 6, § 147 - Statute of limitations - Section 15-1-39 - Section 15-1-49 - Continuing tort doctrine Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): LEE, P.J. Procedural History: Summary Judgment Nature of the Case: Negligence |
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| Trial Court: |
Date of Trial Judgment: 03-15-2006 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Robert L. Lancaster Disposition: TRIAL JUDGE DISMISSED MISFEASANCE CLAIMS AGAINST TRUST ADMINISTRATOR Case Number: 94-0583 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ROBERTA LOUISE IVY WINTERS, JOHN EVERETTE WINTERS, IVY JUNE WINTERS
PETERSON, LINDA LOUISE WINTERS
LAVENDER, SUSAN PATRICIA WINTERS
COWGILL AND WILLIAM DOUGLAS WINTERS |
RICHARD R. GRINDSTAFF |
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| Appellee: | AMSOUTH BANK F/K/A DEPOSIT GUARANTY NATIONAL BANK | J. STEVENSON RAY DONNA BROWN JACOBS |
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| Topic: | Wills & estates - Right to jury trial - Miss. Const. art. 6, § 147 - Statute of limitations - Section 15-1-39 - Section 15-1-49 - Continuing tort doctrine |
| Summary of the Facts: | The income beneficiaries of two testamentary trusts filed a suit in Hinds County Circuit Court against the trustee bank for the alleged breach of the fiduciary duty of care by negligently acting with regard to the trust property. Upon motion of the Bank, the case was transferred to the Chancery Court of Lowndes County where the beneficiaries’ claims were in large part disposed of by two partial summary judgments, finding most of the claims barred by the statute of limitations. The remaining claims were voluntarily dismissed with prejudice in an agreed final judgment of dismissal. The beneficiaries appeal. |
| Summary of Opinion Analysis: | The beneficiaries argue that, by virtue of the transfer of their case to chancery court and the subsequent denial of their motion to retransfer the case back to circuit court, they have been denied their right to a jury trial. They argue that the issues they have raised against AmSouth are in the nature of tort claims and are thus properly before the circuit court. Pursuant to Miss. Const. art. 6, § 147, the Court may not reverse on appeal solely for lack of jurisdiction. The beneficiaries argue that the lower court erred in applying section 15-1-49, the general statute of limitations, rather than section 15-1-39, to his claim for damages for misfeasance by a fiduciary of a trust. The application of section 15-1-39 is limited, in that the cause of action and the remedy of the case must be purely and exclusively equitable, or the general statute of limitations will be applied. The beneficiaries’ complaint demonstrates that the nature of the present action is a tort action for the alleged breach of the fiduciary duty of care by negligently acting with regard to the trust property. Importantly, they seek no equitable relief but seek purely legal relief, namely, compensatory and punitive money damages in the amount of $180,000,000. Therefore, the chancellor did not err in applying the general six-year statute of limitations of section 15-1-49. The beneficiaries argue that the continuing tort doctrine applies and should toll the statute of limitations in the instant case, because the Bank has made continued and repeated injuries to the estate. A ‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. The beneficiaries’ complaint points to numerous instances of alleged wrongful or negligent conduct, however, the acts or omissions asserted are not continual. There is an ascertainable date on which the acts or omissions occurred and the tort was complete. Although the ill effects of AmSouth’s alleged wrongful acts may be continual, this does not warrant the application of the continuing tort doctrine. |
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