NORMAN L. NEYLAND, AS ADMINISTRATOR OF THE ESTATE OF MARY CORY GALLAGHER, DECEASED, APPELLANT
TIMBERLAND MANAGEMENT SERVICES, INC. AND MICHAEL J. DAUGHDRILL, APPELLEES
COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/22/2013. TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEES.
FOR APPELLANT: JOHN H. OTT.
FOR APPELLEES GARY L. HONEA, JOHN BENJAMIN ROWLEY.
BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ. LEE, C.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - CONTRACT
[¶1] This appeal considers whether the circuit court correctly granted a summary judgment based on the statute of limitations. We find reversible error and remand for further proceedings.
[¶2] Mary Cory Gallagher owned land in Amite County, Mississippi. Veronica F. Carber was Gallagher's caretaker and nurse. On November 28, 2001, Gallagher granted Carber a general power of attorney.
[¶3] On May 14, 2002, Carber executed a contract with Timberland Management Services, Inc., to harvest pine and hardwood timber on a portion of her property. Timberland's president, Michael J. Daughdrill, executed the contract. It granted Timberland the right to harvest " all pine north of the [Bluff Springs Road] and selectively marked hardwood timber." The contract specified types of trees to be harvested, set forth a price schedule for the various types of trees to be harvested, and specified that " Timberland will charge 8% for their service." 
[¶4] In a written prospectus provided with the contract, Timberland estimated the timber on the Gallagher lands to be worth $241,519.60. This included a financial analysis of 230.5 acres of Gallagher's
property in both Amite and Wilkinson Counties. The terms of the contract, however, allowed Timberland to harvest timber on approximately seventy-two acres of property located north of Bluff Springs Road in Amite County.
[¶5] Gallagher died on February 2, 2003, at her home in Baton Rouge, Louisiana. Her death occurred before the Timberland contract was completed. After Gallagher's death, Carber was appointed trustee of the Mary C. Gallagher Revocable Living Trust. Timberland received its final instructions, to complete the contract, from Carber after Gallagher's death.
[¶6] Timberland completed the contract work by September of 2003. Timberland, under the instructions of Carber, also performed " two remedial projects" on Gallagher's property to repair property damage from Hurricane Katrina as well as a fire caused by Gallagher's neighbor. These remedial projects were performed in 2005 and 2006 and were paid for by separate insurance funds that covered the damages.
[¶7] On January 2, 2005, Timberland received a request from the Gallagher Estate, through the Internal Revenue Service, for an accounting of the estate funds expended for work performed under the contract. On February 15, 2005, Timberland's accountant, Wayne Hutchinson, provided a partial accounting of the contract to the IRS office in New Orleans to comply with this request. The accounting indicated a balance of $88,697.91. When the final accounting was completed, as a part of this litigation, the remaining charges of $90,455.33 were paid for Daughdrill's supervision fees, materials, equipment, and contractor charges. A balance of $1,757.42 was due Timberland from the Gallagher Estate.
[¶8] On March 16, 2007, Norman L. Neyland was appointed as administrator of the Estate of Mary C. Gallagher when it was opened in Louisiana. Neyland sought to set aside certain conveyances, which had been executed by Carber, of seven tracts of Gallagher's land that would pass to Carber, individually, at Gallagher's death. Carber died in February 2008.
[¶9] On April 1, 2010, Neyland filed a complaint against Timberland and Daughdrill. The complaint asserted claims for breach of contract, fraud, conspiracy, conspiracy to commit fraud, breach of the duty of good faith and fair dealing, failure to account and conversion of escrowed funds, constructive trust, and unjust enrichment. Neyland alleged that Timberland and Daughdrill breached the contract by harvesting timber outside of the approximately seventy-two acres designated by the contract in Amite County, made unauthorized expenditures for work outside of the contract, and failed to account for or pay all sums due under the contract.
[¶10] After discovery, Timberland and Daughdrill filed a motion for summary judgment. The motion argued that the complaint was barred by the statute of limitations and cited Mississippi Code Annotated section 15-1-73 (Rev. 2012). The motion also argued that the claims related to the harvesting contract accrued when the totality of the work under the contract was completed, which Timberland and Daughdrill contended occurred on or about September 1, 2003.
[¶11] In response, Neyland argued that the statute of limitations was tolled based on the deposition testimony of Daughdrill and Hutchinson that established that Timberland depleted the proceeds in the escrow account for the benefit of the Gallagher Estate despite their misrepresentation to the IRS that the funds were still in the estate in 2005. Daughdrill claimed that Carber allowed
him to spend the funds in the escrow account on the business, although he had no written documentation of that agreement. Neyland also argued that the claims asserted were governed by a six-year statute of limitations and cited section 15-1-73. In addition, Neyland argued that the claim for fraudulent concealment by Timberland and Daughdrill was not exposed until 2011.
[¶12] On April 25, 2013, the circuit court entered an order that granted summary judgment. The court ruled that the case should be dismissed based on the failure to file within the six-year statute of limitations under Mississippi Code Annotated section 75-2-725 (Rev. 2002). It is from this judgment that Neyland now appeals.
STANDARD OF REVIEW
[¶13] The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence " in the light most favorable to the party against whom the motion has been made." Id. The supreme court has held:
Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.
Id. at 88-89 (¶ ¶ 10-11) (internal quotation marks and ...