COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/10/2012. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL. TRIAL COURT DISPOSITION: DISMISSED COMPLAINT AND DENIED LEAVE TO AMEND COMPLAINT.
ATTORNEY FOR APPELLANT: TINA LORRAINE NICHOLSON.
ATTORNEYS FOR APPELLEES: ANDREA LA'VERNE FORD EDNEY, RICHARD ANTHONY FILCE, ERIK M. LOWREY, JASON RICHARD BUSH, NAKIMULI ONI DAVIS.
GRIFFIS, P.J. LEE, C.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. CARLTON AND FAIR, JJ., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - INSURANCE
MODIFIED OPINION ON MOTION FOR REHEARING
[¶1] This case is before the Court on a motion for rehearing. The motion is denied. However, the original opinion is withdrawn and substituted with this opinion.
[¶2] This case considers two questions. First, whether the circuit court properly dismissed, under Mississippi Rule of Civil Procedure 12(b)(6), the claims made by Donald Breeden against his former wife, Willie Faye Breeden Buchanan, and Nationwide
Property & Casualty Insurance Company. Second, upon dismissal, whether the circuit court properly denied the plaintiff's motion for leave to amend the complaint.
FACTS AND PROCEDURAL HISTORY
[¶3] Breeden and Buchanan were married on June 21, 2002, in Marion County, Mississippi. During their marriage, they lived in a home located in Sandy Hook, Marion County, Mississippi. Effective May 27, 2010, Nationwide sold Breeden a homeowner's policy that covered this home. Breeden was the named insured.
[¶4] In July of 2010, Buchanan demanded a divorce from Breeden. Buchanan drafted a complaint for divorce, a property-settlement agreement, and a quitclaim deed. The property-settlement agreement and the quitclaim deed transferred Breeden's interest in the home to Buchanan. Breeden alleges that Buchanan threatened him with a loaded gun and said she would shoot him if he did not sign the papers. Breeden signed the complaint for divorce, the property-settlement agreement, and the quitclaim deed.
[¶5] The joint complaint for divorce was filed on July 7, 2010, in the Chancery Court of Marion County. On October 5, 2010, Chancellor Eugene L. Fair Jr. signed the judgment of divorce. The judgment indicated that the parties had attached a property-settlement agreement.
[¶6] Shortly after their divorce was final, Breeden moved to Kentucky. Buchanan remarried and continued to reside in the Sandy Hook home.
[¶7] On April 24, 2011, a fire completely destroyed the home and all of its contents. The house was a total loss. The home was covered by the Nationwide policy.
[¶8] Nationwide received timely notice of the loss. Nationwide did not pay Breeden for the loss. Nationwide claimed that Breeden was not due any payment under the policy of insurance because he did not have an ownership interest in the home as of April 24, 2011. Although Buchanan was not a named insured on the policy, Nationwide communicated with Buchanan about the claim and made payments to her.
[¶9] On August 17, 2011, Breeden filed a complaint in the Marion County Circuit Court against Buchanan and Nationwide.
[¶10] On September 19, 2011, Buchanan filed a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). In the motion, Buchanan gave three reasons to dismiss the complaint. First, she asserted that the intentional-tort claims were barred by a one-year statute of limitations. Second, she asserted that the claims that sought to set aside the property- settlement agreement were subject to the jurisdiction of the chancery court, not the circuit court. Third, she asserted that the remaining contractual claims should be dismissed because Breeden had no insurable interest in the marital home. On
October 18, 2011, Nationwide filed a motion to dismiss on similar grounds.
[¶11] On November 9, 2011, Breeden filed a motion for leave to file a first amended complaint. In the amended complaint, Breeden sought to withdraw his claim that the property-settlement agreement should be set aside, add claims for battery and conversion against Buchanan, and detail more facts to support the claims against Nationwide.
[¶12] On February 13, 2012, the circuit court entered the following order:
The court heard oral argument on various motions, and after having reviewed the pleadings on file, the motions and accompanying memoranda in support thereof, after due deliberation and consideration[,] finds that the separate defendants' motions to dismiss are well taken and should be granted, and [Breeden's] motion to file [an] amended complaint should be denied.
The court finds that the pleadings reflect no insurable interest in [Breeden] in and to the policy or to the proceeds[,] as [Breeden] transferred and conveyed his right, title, and interest in and to the insured property to his former spouse, [Buchanan], as part and parcel of their divorce proceeding and property settlement agreement, this transfer and conveyance having transpired several months before the occurrence of the loss[,] which is the subject matter of [Breeden's] complaint.
Finding that [Breeden] had no insurable interest in and to the property -- and thus no entitlement to any of the insurance proceeds [--] it follows that Nationwide did not breach the insurance contract by failing to pay [Breeden] any insurance proceeds from the loss, nor [did it] act in bad faith.
[Breeden's] complaint against the defendant included allegations of assault, intentional and negligent infliction of emotional distress, and duress designed to induce him to sign the marital dissolution documents, property settlement agreement, and the deed conveying title to the insured property. [Breeden's] complaint was filed on August 17, 2011. The marital dissolution and property settlement documents and deed were signed by [Breeden] in July 2010, and [Breeden] states in his pleading that, immediately after signing the papers[,] it was demanded that he vacate the property. In response to this demand[,] he vacated the property . . . . It is plain from the face of the pleadings that any purported intentional tort occurred in July 2010. As [Breeden] did not file his complaint until August 17, 2011, his intentional tort claims are time[-]barred by [section] 15-1-35 [of the Mississippi Code Annotated (Rev. 2012)].
IT IS, THEREFORE, ORDERED AND ADJUDGED that separate motions to dismiss by the separate defendants, [Nationwide] and [Buchanan,] be . . . and the same are hereby GRANTED, and the Plaintiff's Complaint against the separate defendants is hereby dismissed with prejudice.
IT IS ALSO . . . ORDERED AND ADJUDGED . . . that the Plaintiff's Motion for Leave to File First Amended Complaint . . . be and the same is hereby DENIED.
It is from this order that Breeden now appeals.
STANDARD OF REVIEW
[¶13] In an appeal of a dismissal of a case under Rule 12(b)(6), we apply a de novo standard of review. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (¶ 3) (Miss. 2006). This Court is " not required to defer to the trial court's judgment or ruling." Id. at 893 (¶ 4). " A Rule 12(b)(6)
motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." Rose v. Tullos, 994 So.2d 734, 737 (¶ 11) (Miss. 2008). " [T]he allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim." State v. Bayer Corp., 32 So.3d 496, 502 (¶ 21) (Miss. 2010).
[¶14] In the appeal of the denial of a motion to amend, we apply an abuse-of-discretion standard of review. Pratt v. City of Greenville, 804 So.2d 972, 976 (¶ 9) (Miss. 2001). The circuit court has the discretion to allow an amendment and should freely allow an amendment, unless the defendant would be prejudiced. Id.
I. Breeden's Claims Against Buchanan
[¶15] Breeden's complaint asserted claims against Buchanan for: (1) assault; (2) intentional and/or negligent infliction of emotional distress; (3) inducement and duress in executing the property-settlement agreement and deed; (4) wrongful appropriation of insurance funds; (5) unjust enrichment; and (6) civil conspiracy. The circuit court dismissed all of the claims.
[¶16] The circuit court's order found " that the pleadings reflect no insurable interest in [Breeden] in and to the policy or to the proceeds[,] as [Breeden] transferred and conveyed his right, title, and interest in and to the insured property to his former spouse, [Buchanan], as part and parcel of their divorce proceeding and property-settlement agreement, this transfer and conveyance having transpired several months before the occurrence of the loss." As a result, the court determined that Breeden no longer had an interest in the property. Also, the court concluded that the one-year intentional-tort statute of limitations had expired on the other claims.
A. Claim for Negligent Infliction of Emotional Distress
[¶17] Breeden asserted claims for intentional and negligent infliction of emotional distress against Buchanan. The circuit judge held that these claims were barred by the one-year statute of limitations in Mississippi Code Annotated section 15-1-35 .
[¶18] In Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss. 1996), the supreme court ruled that " intentional and/or negligent infliction of emotional distress claims are governed by the three-year statute of limitations." Then, in Jones v. Fluor Daniel Services Corp., 32 So.3d 417, 422 (¶ 18) (Miss. 2010), the court recognized that it " has been inconsistent in its rulings on whether an intentional-infliction-of-emotional-distress claim is subject to a one-year statute of limitations under Mississippi Code Section 15-1-35[.]" The court then held:
Intentional infliction of emotional distress is a tort against the person, as are the vast majority of those specifically enumerated in Section 15-1-35 of the Mississippi Code. Therefore, a cause of action for intentional infliction of emotional distress is " fairly embodied" in the causes of action included in Mississippi Code Section 15-1-35. Based on the prior analysis, we hold that the tort of intentional infliction of emotional distress is of like kind or classification as the torts enumerated in Section 15-1-35, and it too carries a one-year statute of limitations. To the extent the Norman case holds otherwise, it is expressly overruled.
Jones, 32 So.3d at 423 (¶ 26).
[¶19] Breeden's claims for negligent infliction of emotional distress are subject to
the three-year statute of limitations. See Miss. Code Ann. § 15-1-49 (Rev. 2012). The circuit court was in error when it determined that Breeden's claim for negligent infliction of emotional distress was filed outside of the limitations period. The circuit court's decision to dismiss the claim for negligent infliction of emotional distress against Buchanan is reversed and remanded for further proceedings consistent with this opinion.
B. Claims of Intentional Torts
[¶20] Breeden did assert intentional-tort claims against Buchanan for assault and intentional infliction of emotional distress. Both of these claims are subject to a one-year statute of limitations. Miss. Code Ann. § 15-1-35. The circuit court determined that, according to the complaint, the assault was alleged to have occurred in July 2010. The complaint was filed on August 17, 2011. Thus, section 15-1-35 bars the intentional tort of assault because it was filed after the limitations period expired.
[¶21] However, the complaint alleged that " [d]uring the entirety of 2010, [Breeden] was physically, psychologically and mentally disabled." Thus, he argued that the limitations period should have been tolled under Mississippi Code Annotated section 15-1-59 (Rev. 2012), which reads in pertinent part:
If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law.
[¶22] Buchanan responds that the complaint does not support a decision to toll the limitations period. Specifically, she asserts that the complaint does not allege that Breeden was of unsound mind and contains no reference to tolling the statute. Buchanan argues that the law is clear that a plaintiff seeking to toll the statute must both invoke the tolling provision and plead facts to support the claim of tolling. Le Mieux Bros. Corp. v. Armstrong, 91 F.2d 445, 446 (5th. Cir. 1937). Further, Buchanan argues that section 15-1-59 has been interpreted to mean the person claiming the benefit of the tolling provision must allege and show he or she is " unable to manage the ordinary affairs of life." USF& G ...