WW, Inc., et al. v. Rainbow Casino-Vicksburg P'ship, L.P., et al.


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Docket Number: 2010-CA-00361-SCT
Supreme Court: Opinion Link
Opinion Date: 09-08-2011
Opinion Author: Kitchens, J.
Holding: Affirmed
Additional Case Information: Topic: Negligence - Statute of limitations - Fraudulent concealment - Section 75-3-118(g) - Continuing tort doctrine - Discovery - M.R.C.P. 56(f)
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler, Pierce and King, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - TORTS - OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE
Trial Court: Date of Trial Judgment: 01-25-2010
Appealed from: Hinds County Circuit Court
Judge: Tomie Green
Disposition: Granted summary judgment based on running of statute of limitations.
Case Number: 251-09-46CIV
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: WW, Inc. d/b/a Weight Watchers of Greater Mississippi, BJM, Inc. d/b/a Weight Watchers of Southern Alabama and Florida Panhandle




 WILSON H. CARROLL ROBERT S. MINK



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Rainbow Casino-Vicksburg Partnership, L.P. and Bally Technologies, Inc. QUINBY HILLMAN BRELAND, IV WILLIAM L. SMITH  
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    Topic: Negligence - Statute of limitations - Fraudulent concealment - Section 75-3-118(g) - Continuing tort doctrine - Discovery - M.R.C.P. 56(f)
    Summary of the Facts: On December 5, 2005, Weight Watchers discovered that its bookkeeper, Dianne Belk, had embezzled nearly $1,000,000 from the business over a six-year period. Belk embezzled the money by writing checks to herself from Weight Watchers accounts. She concealed her writing of unauthorized checks by inputting legitimate vendors’ names in the computerized bookkeeping system as the ostensible payees. However, Belk would type her name as payee on the paper checks. Belk then would cash the checks at local banks and casinos, including the Rainbow Casino, and she often would gamble with the embezzled money. Belk reported her winnings to the Internal Revenue Service via W-2G forms provided by the casino, and she paid taxes on those winnings. According to the complaint, Belk lost roughly $240,000 of the stolen funds to Rainbow Casino. More than three years after first learning of Belk’s embezzlement activities, Weight Watchers filed suit against Dianne Belk, Robert F. Belk, Jr. (Dianne’s husband), Rainbow Casino-Vicksburg Partnership, L.P., Bally Technologies Inc. (the casino’s management company), and five John Doe defendants. Weight Watchers’ claims against Rainbow Casino and Bally Technologies were based on fraud, unjust enrichment, conversion, and negligence. Rainbow moved for summary judgment which the court granted. Weight Watchers appeals.
    Summary of Opinion Analysis: The trial court granted Rainbow’s motion, rejecting Weight Watchers’ fraudulent concealment argument and finding that the action was barred by the three-year statute of limitations under section 75-3-118(g). Weight Watchers argues that Rainbow fraudulently concealed its involvement by issuing tax forms to Belk that falsely represented Belk had won the money from the casino. Thus, Weight Watchers argues that it could not have known a cause of action against Rainbow existed until it received Belk’s federal tax returns on January 13, 2006. Assuming that the casino committed some wrong by issuing the tax forms, this did not serve to conceal any cause of action from the plaintiff. It is undisputed that Weight Watchers knew on December 5, 2005, that Belk had cashed many of the unauthorized checks at the Rainbow Casino. Weight Watchers does not explain how the tax forms would have prevented its discovering Rainbow’s alleged involvement in Belk’s crimes. Thus, the trial court correctly found that the plaintiff has not alleged any fraudulent conduct that would have concealed a cause of action. Where a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the date of the last injury, or when the tortious acts cease. According to Weight Watchers, the last tortious conduct occurred late in 2006 when Belk filed her federal tax return for 2005. However, the last injury to Weight Watchers occurred on December 5, 2005, the date Belk cashed her final unauthorized check. Thus, the continuing tort doctrine would not operate to toll the applicable statute of limitations beyond December 5, 2008. While Weight Watchers argues that it was entitled to conduct further discovery before the summary judgment motion was considered, it never filed an M.R.C.P. 56(f) affidavit with the trial court, and this issue was not preserved for appeal.


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