United States District Court, S.D. Mississippi, Southern Division
BENJAMIN F. CROSBY, III; BENJAMIN F. CROSBY, JR.; and PAULA CROSBY PLAINTIFFS
JULIA E. PIPPIN, also known as Judy Pippin, Individually; PIPPIN ENTERPRISES, INC.; and RE/MAX HOLDINGS, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING RE/MAX
HOLDINGS, INC.'S MOTION TO DISMISS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion to Dismiss filed by the
defendant Re/Max Holdings, Inc., in this lawsuit that arose
out of the filing of an affidavit allegedly containing
misrepresentations or fraudulent statements in a state court
lawsuit. The parties have fully briefed the Motion. After
reviewing the Motion, the record in this matter, and the
applicable law, the Court finds that the plaintiffs'
claims against Re/Max are barred by the statute of
limitations and must, therefore, be dismissed with prejudice.
Mittelstaedt family and the plaintiffs - Benjamin F. Crosby,
III, Benjamin F. Crosby, Jr., and Paula Crosby (sometimes
collectively referred to as “the Crosbys”) -
owned adjacent property in Carriere, Mississippi. The Crosbys
permitted the Mittelstaedt family to use part of the
Crosbys' property. In approximately 2009, the
Mittelstaedts hired the realtor Julia E. “Judy”
Pippen to sell their property. The Complaint filed in the
present lawsuit contains the following allegations:
January 8, 2009, Paula Crosby executed and filed a Lis
Pendens notice “to place the public on notice of
Crosby's intent to revoke [the] Mittelstaedts'
permissive use of a portion of the Crosbys' private
property.” (Compl. 5, ECF No. 1.) Pippen placed a
“For Sale” sign on the Crosbys' property.
Upon receipt of the Lis Pendens notice, the
Mittelstaedts' attorney threatened that, if the Crosbys
did not convey to the Mittelstaedts “the portion of
[the Crosbys'] property to which [the] the Mittelstaedts
enjoyed permissive use, ” the Mittelstaedts would sue
the Crosbys for conspiring to reduce the value of the
Mittelstaedt property so that the Crosbys could purchase the
Mittelstaedt property. (Id. at 6.)
September 29, 2009, the Mittelstaedts sued the Crosbys.
Several years later, the parties entered into a settlement
agreement in which the Mittelstaedts agreed to dismiss their
lawsuit, pay settlement monies to the Crosbys, erect a fence
and gate at the border between the Crosby and Mittelstaedt
properties, and sign a notarized and witnessed apology letter
addressed to the Crosbys. After the Mittelstaedts failed to
fulfill the terms of the settlement agreement, the Crosbys
filed a second Lis Pendens notice dated April 4, 2014,
“to put the Mittelstaedts and the public on notice that
the Mittelstaedt property was in violation of the . . .
settlement agreement terms recorded with the
Mittelstaedts' property deed.” (Id. at 9.)
The Mittelstaedts then filed a Motion to Enforce Settlement
Agreement, alleging that the Crosbys violated the settlement
agreement by filing the second Lis Pendens. The Circuit Court
Judge granted the Mittelstaedts' Motion on December 16,
2014, but the Crosbys did not receive a copy of the order
until after the time to appeal had expired. On January 23,
2015, the Crosbys filed a Motion to Reopen the Time to
Appeal. The Mittelstaedts filed an affidavit signed by the
realtor Judy Pippin in support of their response to the
Motion to Reopen. In the affidavit, Pippen testified that she
is a licensed realtor with Re/Max, and that several potential
buyers of the Mittelstaedt property lost interest after they
were informed of each of the Lis Pendens filed by the
Crosbys. The Crosbys contend that the affidavit caused the
court to deny their Motion to Reopen.
affidavit, which was signed, filed, and served on
Crosbys' counsel on February 5, 2015, is the subject of
the Crosbys' current lawsuit, which was filed on October
24, 2018. The Crosbys had previously filed and voluntarily
dismissed two similar state court lawsuits - on February 2,
2018 and August 7, 2018 - concerning the affidavit. The
Crosbys claim that the affidavit contains negligent
misrepresentations or fraudulent statements, because the Lis
Pendens notice did not encumber the Mittelstaedts'
property. They also allege that Pippen used the affidavit to
fraudulently conceal the Crosbys' cause of action for
negligent misrepresentation or fraud. The Crosbys assert that
they did not become aware of Pippen's alleged fraudulent
statements until October 2016. Re/Max filed the present
Motion to Dismiss, alleging, inter alia, that the
Crosbys' claims are barred by the statute of limitations.
survive a motion to dismiss filed pursuant to Rule 12(b)(6)
or Rule 12(c), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The court must accept all
well-pleaded facts as true and view those facts in the light
most favorable to the plaintiff. King-White v. Humble
Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015).
“[W]hen a successful affirmative defense appears on the
face of the pleadings, dismissal under Rule 12(b)(6) may be
appropriate.” Kansa Reinsurance Co., Ltd. v.
Congressional Mortg. Corp. of Tex., 20 F.3d 1362, 1366
(5th Cir. 1994).
statute of limitations for the Crosbys' negligent
misrepresentation and fraud claims is three years.
See Miss. Code Ann. § 15-1-49(1); Stephens
v. Equitable Life Assurance Society of U.S., 850 So.2d
78, 82 (¶12) (Miss. 2003) (the three-year statute of
limitations set forth in Miss. Code Ann. § 15-1-49
applies to fraud claims); Bonds v. Modern Woodmen of
Amer., No. 2014 WL 1255426, at *2 (N.D. Miss. March 26,
2014) (Miss. Code Ann. § 15-1-49 governs negligent
misrepresentation claims). ReMax argues that, due to the state
court complaints the Crosbys filed, the statute of
limitations ran on June 5, 2018, at the latest. The Crosbys
counter that the statute of limitations should be tolled due
to Pippin's alleged fraudulent concealment. The Crosbys
argue in their Memorandum that they first learned that
Pippin's affidavit contained false statements when they
“were approached by one of the subsequent buyers of the
Mittelstaedt property” in October 2016. (Pls.' Mem.
6, ECF No. 14.) The Court will first determine when the
statute of limitations began to run for the Crosbys'
of action accrues, and the statute of limitations
“begins to run when all the elements of a tort, or
cause of action, are present.” Weathers v. Metro.
Life Ins. Co., 14 So.3d 688, 692 (Miss. 2009)
(quoting Caves v. Yarbrough, 991 So.2d 142, 147
(Miss. 2008)). The elements of a cause of action for fraud
(1) a representation, (2) its falsity, (3) its materiality,
(4) the speaker's knowledge of its falsity or ignorance
of its truth, (5) his intent that it should be acted on by
the hearer and in the manner reasonably contemplated, (6) the
hearer's ignorance of its falsity, (7) his reliance on
its truth; (8) his right to rely thereon, and (9) his
consequent and proximate injury.
Trim v. Trim, 33 So.3d 471, 478 (Miss. 2010)
(citation omitted). To establish negligent misrepresentation,
the following elements must be proven:
(1) a misrepresentation or omission of a fact; (2) that the
representation or omission is material or significant; (3)
that the person/entity charged with the negligence failed to
exercise that degree of diligence and expertise the public is
entitled to expect of such persons/entities; (4) that the
plaintiff reasonably relied upon the misrepresentation or
omission; and (5) ...