Pope v. Sorrentino
| Docket Number: | 2005-CA-02338-COA Linked Case(s): 2005-CA-02338-SCT ; 2005-CA-02338-COA ; 2005-CT-02338-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-15-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Statute of limitations - Section 15-1-49 - Fraudulent concealment - Attorney’s fees Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 01-06-2005 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: L. Breland Hilburn Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF DEFENDANTS Case Number: 2001-0267 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | BARRY POPE, INDIVIDUALLY AND AS A
SHAREHOLDER OF WORLDWIDE FOREST PRODUCTS, INC., ET AL. |
CLARENCE MCDONALD LELAND |
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| Appellee: | BRIAN SORRENTINO, DALE HILL, WORLDWIDE FOREST PRODUCTS, INC., KEMPER PRESSURE TREATED FOREST PRODUCTS, INC., LIFE2K.COM, INC., ALGONQUIN ACQUISITION CORPORATION, GENERATION ACQUISITION CORPORATION, SYNDICATIONNET.COM, INC. AND CASTLE SECURITIES CORPORATION | SAM STARNES THOMAS, H.D. GRANBERRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Statute of limitations - Section 15-1-49 - Fraudulent concealment - Attorney’s fees |
| Summary of the Facts: | Barry Pope, individually and as a shareholder of Worldwide Forest Products, Inc., filed a complaint on November 26, 2001, naming as defendants: Brian Sorrentino; Dale Hill; Worldwide Forest Products, Inc.; Kemper Pressure Treated Forest Products, Inc.; Life2K.com, Inc.; Algonquin Acquisition Corporation; Generation Acquisition Corporation; Syndication Net.com, Inc.; and Castle Securities Corporation. On January 6, 2003, Pope filed an amended complaint, alleging negligent supervision, securities fraud, fraud, negligent misrepresentation, negligence and breach of fiduciary duties, tortious breach of contract, willful and knowing inducement to breach contracts and tortious interference with contractual rights, inducement and breach of oral contract, bad faith breach of contract, constructive trust, intentional and negligent infliction of emotional distress, and civil conspiracy. The circuit court granted two motions for summary judgment, one made by Castle and the other by the remaining defendants except Worldwide. Later, the circuit court issued an amendment to clarify the original judgment. In the amended judgment, the circuit court charged Pope with knowledge of his claim against Castle prior to November 1998. The court concluded that Pope’s claims accrued more than three years prior to November 26, 2001, the date on which he filed his initial complaint. Accordingly, the court dismissed Pope’s claims with prejudice. Pope appeals. |
| Summary of Opinion Analysis: | Issue 1: Statute of limitations Pope argues that his claims presented genuine issues of material fact and were not time-barred. Pope’s claims, including fraudulent and negligent misrepresentation and/or omission, are covered under section 15-1-49. If Pope knew about his claims or with reasonable diligence could have discovered his claims prior to that date, then those claims are barred by the statute of limitations. If however, Pope can show that the Sorrentino defendants committed some affirmative act of concealment and he did not know about the fraud and could not have discovered it with reasonable diligence, then the statue of limitations is tolled because of the Sorrentino defendants’ fraudulent concealment. In regard to an allegation 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. In addition to proving an affirmative act of concealment, the party alleging fraudulent concealment must prove that despite his due diligence, he was unable to discover the claim before the expiration of the statute of limitations. Despite his mostly unfounded allegations, it is evident that Pope either knew of or should have discovered his claims against Sorrentino and the other defendants prior to November 26, 1998. A reasonable person in Pope’s situation should have discovered his claims against the Sorrentino defendants prior to November 26, 1998. Taking the evidence in a light most favorable to Pope, it remains that he believed Sorrentino was a liar and planned to defraud him. Sorrentino told Pope in 1996 that the Worldwide offering would be delayed. The Court cannot say a reasonable person would have relied on the assurances of someone that he believed to be a liar and a crook for more than two years in expectation that the liar would eventually make good on his promises. With regard to Pope’s claim against Castle, no genuine issue of material fact exists. Pope cites to the “firm commitment letter” as the basis for his claim. The letter, however, does not support Pope’s contentions. It is not an agreement that could have reasonably led Pope to believe that Castle was bound to underwrite Worldwide’s public offering. In addition, Pope’s claims are also barred by the three-year statue of limitations. Issue 2: Attorney’s fees Pope argues that the circuit court erred by finding that the Sorrentino defendants and Castle were entitled to attorney’s fees as a result of Pope’s continuance of the September 22, 2004, trial date. The record, however, contains no further mention of attorney’s fees by the court. Because there is no record of the circuit court ordering an award of attorney’s fees, there is nothing to review. |
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