                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-IA-00311-SCT

CITIFINANCIAL MORTGAGE COMPANY, INC.

v.

ROSIE WASHINGTON AND CATHERLEAN
CRAFT


DATE OF JUDGMENT:                          02/10/2005
TRIAL JUDGE:                               HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                 JASPER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   LAURA L. GIBBES
                                           H. MITCHELL COWAN
                                           ROBERT D. GHOLSON
ATTORNEYS FOR APPELLEES:                   CHRISTOPHER E. FITZGERALD
                                           W. LEWIS GARRISON, JR.
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               REVERSED AND REMANDED - 10/25/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    CitiFinancial appeals to this Court from the Circuit Court of Jasper County’s denial

in part of CitiFinancial’s motion for summary judgment. This case concerns a loan Rosie

Washington and Catherlean Craft obtained from Ford Consumer Finance, a predecessor in

interest to CitiFinancial. The issues presented are whether the evidence demonstrated the

existence of each essential element of the causes of action brought, thus creating a genuine

issue of material fact, and whether the claims were barred by the statute of limitations.
                         FACTS AND PROCEDURAL HISTORY

¶2.    Plaintiffs obtained a loan from Ford Consumer Finance, which was sold to The

Associates First Capital which became Associates Home Equity Services, and Associates

was bought by CitiGroup and became CitiFinancial. On November 29, 1995, Catherlean

Craft and her mother Rosie Washington signed an agreement for a loan of $31,480 from Ford

Consumer Finance. Plaintiffs filed a complaint on November 19, 2001, alleging that

CitiFinancial represented to them that 180 monthly payments of $400.57 would satisfy the

debt when, in fact, after 179 such monthly payments, Plaintiffs would still owe $28,878.20.1

Plaintiffs raised claims of breach of the covenant of good faith and fair dealing, economic

duress, negligence, intentional infliction of emotional distress, constructive fraud, rescission

and cancellation, and violation of the Mississippi Unfair or Deceptive Acts and Practices Act,

Mississippi Code Annotated Section 75-24-3, et seq. (Rev. 2000). Defendants answered and

raised as defenses, inter alia, that Plaintiffs failed to state a claim and that Plaintiffs’ claims

are barred by the statute of limitations and the doctrine of release.

¶3.    On December 13, 2004, CitiFinancial filed a motion for summary judgment, asserting

that Plaintiffs’claims were barred by the statute of limitations; that Plaintiffs previously

signed a settlement agreement releasing CitiFinancial; and that Plaintiffs raised no genuine

issue of material fact as to the causes of action brought. Plaintiffs responded, and attached

excerpts of the deposition of Rhonda Hare, the mortgage representative who allegedly made

misrepresentations; the deposition of Scott McIlhaney, who at the time of the execution of

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         Specifically, Plaintiffs obtained the loan through a mortgage on Washington’s home and
allege that Rhonda Hare of Hare Mortgage, Inc., who Plaintiffs claim served as an agent or
employee of CitiFinancial, misrepresented the terms of their loan payment obligation.

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the loan was an employee of Ford Consumer Finance, which later became CitiFinancial; the

deposition of Rosie Washington, one of the plaintiffs and a signatory to the loan agreement;

Plaintiffs’ Supplemental Answers to Defendants’ Interrogatories, describing the expected

opinions of Gene Marsh, an expert on predatory lending; the deposition of Marsh; and the

deposition of Catherlean Craft, the other plaintiff and signatory to the loan agreement.

¶4.    On February 14, 2005, the trial court granted in part and denied in part CitiFinancial’s

Motion for Summary Judgment. The court denied summary judgment on the issues of breach

of the covenant of good faith and fair dealing, negligence, intentional infliction of emotional

distress, fraud, statute of limitations, and release of claims. Upon this denial, CitiFinancial

filed a Petition for Interlocutory Appeal and a Motion for Emergency Stay of Case pending

the resolution of this interlocutory appeal, both of which this Court granted.

¶5.    This Court need only discuss the statute of limitations application to Plaintiff’s claim,

since that issue is dispositive. We conclude that Plaintiffs are barred according to the statute

of limitations, and denial of summary judgment was error by the trial judge. Accordingly, we

reverse and render.

                                       DISCUSSION

       I.     Whether the Trial Court Erred in its Determination that Plaintiffs’
              Claims Are Not Barred by the Statute of Limitations.

¶6.    The claim for intentional infliction of emotional distress is subject to a one-year

statute of limitations under Mississippi Code Annotated Section 15-1-35 (Rev. 2003).

Southern v. Miss. State Hosp., 853 So. 2d 1212, 1214 (Miss. 2003). The intentional act

which Plaintiffs claim forms the basis of this action involves the alleged misrepresentations



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or omissions occurring on or before November 29, 1995, and Plaintiffs filed their claim on

November 19, 2001. Clearly, the statute of limitations had run as to this claim when Plaintiffs

brought suit almost six years after the act giving rise to the claim.

¶7.      The remainder of the claims are governed by Mississippi Code Annotated Section 15-

1- 49 (Rev. 2003). Rankin v. Am. Gen. Fin., Inc., 912 So. 2d 725, (Miss. 2005) (breach of

a fiduciary duty, breach of implied covenant of good faith and fair dealing, negligent

misrepresentation, fraudulent misrepresentation, and negligence are subject to a three-year

statute of limitations pursuant to Miss. Code Ann. § 15-1-49). In a contractual claim, a cause

of action accrues on the date of actual injury, the date the facts occurred which enable the

Plaintiffs to bring a cause of action. Oaks v. Sellers, 953 So. 2d 1077, at *10-11 (Miss.

2007).

¶8.      The dispute centers around whether a claim arose at the time of the execution of the

loan, as CitiFinancial asserts, or at the time Plaintiffs were first counseled on the fact that

better terms existed. The statute of limitations for the claims in this case began to run when

the plaintiffs had notice of the terms of the contract, which was at the time of the execution

of the loan agreement, when the Plaintiff received the terms of the contract. Id. at 11

(discussing Andrus v. Ellis, 887 So. 2d 175 (Miss. 2004)). Having signed and received a

copy of the loan, which contained all the payment terms, Plaintiffs were on notice of the

terms complained of as of November 29, 1995. This Court held in Sellers that having

knowledge, regardless of whether that knowledge was actual or constructive, of the terms of

the agreement begins the statute of limitations. Sellers, 953 So. 2d 1077, at *18. The




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plaintiffs filed suit on November 19, 2001, more than three years after they learned of the

terms about which they now complain.

¶9.    Giving Plaintiffs all benefit of the doubt, in November 1995, the terms of the contract

upon which they base their claim included a balloon payment of $28,878.20. That contract

also stated that those were the only terms provided to them. Therefore, Plaintiffs’ right to sue

began on November 29, 1995, and the statute of limitations began to run on that date also.

Plaintiffs filed their claim six years later in November 2001, well outside the three-year

statute of limitations under Mississippi Code Annotated Section 15-1-49. Accordingly, this

Court finds that the trial court erred by denying CitiFinancial’s motion for summary

judgment. The statute of limitations bar warrants a grant of summary judgment on all claims

raised in this case. See Bennett, 921 So. 2d at 1272 (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986)).

                                       CONCLUSION

¶10.   Plaintiffs were barred from filing suit six years after the events occurred which gave

rise to their claims. Accordingly, the trial court erred by denying CitiFinancial’s motion for

summary judgment, and this Court reverses that judgment and remands this case to the

Circuit Court of Jasper County for entry of an order consistent with this opinion.

¶11.   REVERSED AND REMANDED.

    WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. DIAZ, P.J., EASLEY AND GRAVES, JJ., DISSENT WITHOUT
SEPARATE WRITTEN OPINION.




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