Rushing v. Trustmark Nat'l Bank


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Docket Number: 2010-CA-00037-COA

Court of Appeals: Opinion Link
Opinion Date: 07-19-2011
Opinion Author: Myers, J.
Holding: AFFIRMED

Additional Case Information: Topic: Contract - Waiver doctrine
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Barnes, J.
Dissenting Author : Carlton, J.
Dissent Joined By : Irving, P.J., and Russell, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 11-17-2009
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Disposition: GRANTED RULE 54(B) CERTIFIED FINAL SUMMARY JUDGMENT FOR TRUSTMARK
Case Number: 251-08-366 CIV

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Kelsey Rushing and Yumeka Rushing




MATTHEW IVAN HETZEL, TOMMIE LEE STINGLEY JR.



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Trustmark National Bank CHRISTOPHER A. SHAPLEY, WILLIAM "TREY" JONES III, CHRISTOPHER RAY FONTAN  

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    Topic: Contract - Waiver doctrine

    Summary of the Facts: Kelsey and Yumeka Rushing sued Trustmark National Bank to recover damages on the grounds of negligence, breach of fiduciary duty, breach of contract, and detrimental reliance in connection with a construction-loan agreement the Rushings had entered into with the bank for a new home. The circuit court granted Trustmark’s motion for summary judgment. The Rushings appeal.

    Summary of Opinion Analysis: The Rushings argue that the circuit court erred in applying the waiver doctrine to the facts in this case, as the rule has only been applied in cases where the plaintiffs or debtors were alleging causes of actions as either defenses to paying the notes for permanent financing or as reactions to collection actions filed by lenders. Trustmark argues that the waiver doctrine, as applied by the circuit court, stands for the proposition that: where a borrower has knowledge of the facts giving rise to a claim of wrongdoing against a lender in relation to a contract, the borrower cannot affirm the contract and continue to accept the benefits of the contract and then complain about the alleged wrongdoing at a later date. The Rushings, who are both attorneys, admitted in their respective depositions that prior to renewing the construction loan with Trustmark (three additional times), they were aware of Trustmark’s alleged responsibility for the construction problems they had with Hale Construction, and they intended to sue Trustmark for its alleged actionable wrong(s) once their new builder completed construction on their home. That being the case, the Rushings waived any right of action they might have had against Trustmark.


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