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Aydin v. Daniels

Court of Appeals of Mississippi

June 2, 2015

NURDAN AYDIN AND ADNAN AYDIN APPELLANTS
v.
MARTY DANIELS AND MARTY DANIELS CONSTRUCTION, LLC APPELLEES

DATE OF JUDGMENT: 12/13/2013

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JOHN ANDREW GREGORY

ATTORNEYS FOR APPELLANTS: J. KEITH PEARSON SARAH LYNN DICKEY

ATTORNEYS FOR APPELLEES: H. SCOT SPRAGINS LAWRENCE JOHN TUCKER JR. JASON R. HOLLINGSWORTH

BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.

ISHEE, J., FOR THE COURT

¶1. In 1995, Marty Daniels, through his company, Marty Daniels Construction LLC (collectively Daniels), built a custom home for certain property owners in Oxford, Mississippi. During the building process, trees, shrubs, and dirt were removed from the property, thus creating a gully. The property owners instructed Daniels to take the materials that were removed for building purposes and deposit them into the gully as opposed to hauling the materials away. In 2010, after the home had been sold on several occasions, Nurdan and Adnan Aydin owned the home. The Aydins claim that sinkholes began forming where the gully had been filled, which ultimately required substantial labor and repairs to be done to the property. They filed suit in the Lafayette County Circuit Court against Daniels claiming that he had fraudulently concealed the gully, which began forming sinkholes as a result of the fill material beginning to decay. Prior to trial, Daniels moved to dismiss the action as time-barred. After a hearing on the motion, the circuit court granted Daniels's request, and the action was dismissed. Aggrieved, the Aydins appeal. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In 1995, Chris and Kathy Ross were the owners of property located in Oxford, Mississippi. The Rosses hired Daniels to custom build a home on the property. During the building process, natural materials had to be removed from the property. These materials included items such as tree stumps, tree trunks, tree limbs, and dirt, among other things. Removal of these materials created a gully on the property. After discussing the matter with Daniels, the Rosses decided that having the material hauled away would be costly and damage the home's newly paved drives. Instead, they decided to bury the materials in a gully located on the property.

¶3. The Rosses eventually sold the home. The home was, in fact, sold several times between the Rosses' ownership and the Aydins' acquisition of the property. Nonetheless, in 2010, the Aydins began noticing sinkholes forming at their residence. After hiring contractors to investigate and repair the issues, the Aydins were told that the sinkholes were the result of the fill material in the gully decaying. The gully was eventually dug up, the decaying material was removed, and approximately forty truckloads of dirt were used to fill the gully. The Aydins assert that not only was their driveway destroyed, but the sinkholes caused extensive damage to the interior and exterior plumbing of the house. In addition to the costs associated with remedying and repairing the gully and the property, the Aydins also claim that they were unable to sell the property at fair market value. They claim the value of the home decreased as a result of the obvious signs of repair on the property and their requirement to disclose the extensive subsurface issues to all potential buyers.

¶4. In 2011, the Aydins filed suit against Daniels claiming that the gully and its allegedly defective fill material were fraudulently concealed. A summons was issued and served upon the corporate defendant, but one was not served upon the individual defendant. When Daniels failed to answer the complaint within the allotted time frame, the Aydins moved for a default judgment, which was granted. However, before the judgment could be entered, Daniels hired counsel, who moved to set the default judgment aside on the basis of insufficient service of process. Counsel also filed an answer to the Aydins' complaint asserting numerous affirmative defenses, including the statute of repose.

¶5. Before the circuit court could address the motions regarding the default judgment, Daniels filed a motion to dismiss citing the statute of repose as a procedural bar for the Aydins' claims. The Aydins countered that the theory of fraudulent concealment excepted the case from the statute of repose. Discovery took place over the next few years, after which time the circuit court scheduled a hearing on Daniels's motion to dismiss. The circuit court ultimately concluded that the claims at hand were barred by the statute of repose because the Aydins failed to provide sufficient facts to support a prima facie claim of fraudulent concealment. Soon thereafter, the Aydins filed the instant appeal.

DISCUSSION

ΒΆ6. The standard of review for analyzing a trial court's grant or denial of a motion ...


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