                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CT-00823-SCT

BILLY MACK SULLIVAN, TERESA SULLIVAN
RANKIN, BILLY H. SULLIVAN, ALICE M.
LOWTHER, JAMES H. LOWTHER, JR., JULIAN
BARRY LOWTHER, PAUL EDWARD LOWTHER
AND SHERRI LYNN LACY

v.

EUGENE C. TULLOS d/b/a TULLOS & TULLOS,
JOHN RAYMOND TULLOS d/b/a TULLOS &
TULLOS, CRYMES G. PITTMAN, INDIVIDUALLY
AND d/b/a PITTMAN, GERMANY, ROBERTS &
WELSH, LLP AND BILLY MEANS

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        02/08/2007
TRIAL JUDGE:                             HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 W. TERRELL STUBBS
ATTORNEYS FOR APPELLEES:                 CYNTHIA ANN STEWART
                                         S. WAYNE EASTERLING
                                         ROBERT G. GERMANY
                                         PAMELA A. FERRINGTON
                                         C. VICTOR WELSH, III
                                         DAVID GARNER
NATURE OF THE CASE:                      CIVIL - LEGAL MALPRACTICE
DISPOSITION:                             REVERSED AND REMANDED - 10/22/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      PIERCE, JUSTICE, FOR THE COURT:

¶1.   This appeal arises from the Hinds County Circuit Court’s grant of summary judgment

on behalf of Eugene C. Tullos (Tullos) and John R. Tullos, individually and doing business
as Tullos and Tullos; Crymes G. Pittman; Billy Means; and John Does 1-10 (the defendants)

in a lawsuit filed by Billy M. Sullivan, Teresa S. Rankin, Billy H. Sullivan, Alice M.

Lowther, James H. Lowther, Jr., Julian B. Lowther, Paul E. Lowther, and Sherri L. Lacy (the

heirs). The Mississippi Court of Appeals affirmed this judgment in a plurality opinion. The

heirs appeal and assert that the trial court erred procedurally in converting the Rule 12(b)(6)

motion to dismiss into a motion for summary judgment under Rule 56 of the Mississippi

Rules of Civil Procedure, that the trial court erred in finding that the statute of limitations

had run against the heirs, and that the trial court erred in granting summary judgment on

behalf of the defendants. Finding reversible error, we reverse and remand.

                                           FACTS

¶2.    The plaintiffs allege the following:1 Jeff Wooley, a widower with no children, died

intestate on March 9, 1998. At the time of his death, Wooley owned approximately 423

acres of land in Smith County. The appellants are some of Wooley’s heirs at law. Annie

Boone, Wooley’s sister, was appointed administratrix of the estate. Eugene Tullos acted as

Boone’s attorney in the administration of the estate. At one time, some of the heirs retained

the services of separate attorneys, as there was originally a dispute about the inheritance.

However, each attorney had been dismissed by the time of the sale of the land that gave rise

to this appeal.




       1
         A portion of the facts is taken from the complaint and/or the memorandum opinion
of the trial court and the Court of Appeals.

                                              2
¶3.    On August 21, 2000, a judgment approving the final accounting, estate closing, and

discharging of the administratrix was entered.2 The heirs allege that on the same day, Tullos

told them that bids had been “invited and accepted on [the] 420 acres of land and that the

Defendant, Crymes G. Pittman, had made the highest and best bid of $750.00 per acre.”3

However, the record contains no evidence that bids were taken on the property. Without

knowledge of the failure to receive or request other bids as claimed by Tullos, the heirs

allege they executed a warranty deed, prepared by Tullos, to Pittman. Each of the heirs

received a check drawn on Tullos’s “regular account” for his or her portion of the sale. The

memo line of each check indicated that it was for the sale of estate land to Crymes G.

Pittman.

¶4.    On April 10, 2002, Pittman deeded the 420 acres to Tullos. Later on, allegedly, one

of the heirs sought out Tullos in order to purchase some of the land back from Pittman. The

heirs assert that Tullos was evasive when questioned about the land. According to the

plaintiffs, this raised some suspicion, and they subsequently discovered that Pittman did not

own any of the land; but instead, Tullos owned all of it. The heirs then filed suit on April 8,

2005, against Tullos, Pittman, and various others, contending that the 2000 sale was

fraudulent and that Pittman had acted as a “straw man” for Tullos to buy the property.

Additionally, the complaint alleged that the Pittman defendants “knew or should have known



       2
        At some point, three acres were removed from the estate; the total land sold on
August 21, 2000, was 420 acres.
       3
         Although the complaint alleges Pittman purchased the property for $750 per acre,
the defendants stated during the hearing on the Rule 12(b)(6) motion that the property had
sold for $710 per acre.

                                              3
that they were being used as ‘straw men’ to purchase the 420 acres on behalf of the Tullos

defendants at a price substantially lower than would have been received if bids and/or a

private sale had been solicited on said property.”

¶5.    The various defendants subsequently filed a motion to dismiss under Mississippi Rule

12(b)(6) without answering the heirs’ complaint. On November 3, 2006, the court held a

hearing on the Rule 12(b)(6) motion filed by the defendants. During the hearing, the heirs

introduced copies of the checks that Tullos had tendered to them as payment for the land

sold to Pittman. The defendants introduced an appraisal from the time of the sale showing

the value of the land to be $500 per acre. Thereafter, during the hearing on the motion to

dismiss, the court transformed the Rule 12(b)(6) motion into a motion for summary

judgment under Rule 56, without ordering a continuance to allow the heirs a reasonable time

to present evidence necessary for the proper adjudication of their claims as is required under

the rule.

¶6.    On November 7, 2006, three days after the conclusion of the hearing, counsel for the

heirs sent a letter to the trial court advising it that the heirs had a witness, identified only as

a Mr. Jennings, who would testify as follows:

       [H]e was there with his money to pay more than what the property was sold
       for, but the way Mr. Tullos got around that was, he simply said that the time
       for bids had expired when actually no bids had been taken by him. Others
       who wanted to bid on the property were also told by Mr. Tullos they could
       not.

Subsequently, on November 30, the trial court entered a memorandum opinion, finding that

summary judgment should be granted to the defendants. An order granting summary

judgment was then entered on February 9, 2007. The heirs appealed accordingly.

                                                4
                   ANALYSIS AND DISCUSSION OF THE ISSUES

¶7.    This Court applies a de novo standard of review to questions concerning the statute

of limitations. Ellis v. Anderson Tully Co., 727 So. 2d 716, 718 (Miss. 1998). Furthermore,

“[t]his Court reviews grants of summary judgment under the de novo standard.” Bullard v.

Guardian Life Ins. Co. of Am., 941 So. 2d 812, 814 (Miss. 2006). Pursuant to Rule 56 of

the Mississippi Rules of Civil Procedure, summary judgment “shall be rendered forthwith

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.” Miss. R. Civ. P. 56(c). The court

views the evidence in the light most favorable to the nonmoving party. Univ. of Miss. Med.

Ctr. v. Easterling, 928 So. 2d 815, 817 (Miss. 2006). “The moving party bears the burden

of demonstrating there is no genuine issue of material fact.” Id. (citing Fletcher v. Lyles,

999 So. 2d 1271, 1276 (Miss. 2009)).

       I.     WHETHER THE STATUTE OF LIMITATIONS HAS RUN AND
              THE HEIRS’ CLAIMS ARE BARRED.

¶8.    The heirs contend that the trial court erred in finding that the statute of limitations had

run against them. Having reviewed the record, we agree the trial court erred in granting

summary judgment and reverse the trial court.

¶9.    The heirs allege that Tullos engaged in an act of fraudulent concealment when he

indicated in the memo line of the checks given to them that the land was being sold to

Pittman. In Mississippi, a claim of fraud has a three-year statute of limitations. Miss. Code

Ann. § 15-1-49 (Rev. 2003); Sanderson Farms Inc. v. Ballard, 917 So. 2d 783 (Miss. 2005).


                                               5
¶10.   The heirs signed over the property in question to Pittman on August 21, 2000.

Pittman deeded the property to Tullos on April 10, 2002. The heirs filed suit on April 8,

2005. Neither party disputes that a three-year statute of limitations applies to the heirs’

claims. However, the heirs contend that the statute of limitations began to run on April 10,

2002, while the defendants claim that the statute began to run on August 21, 2000.

¶11.   The heirs assert that the ultimate purchase of the property by Eugene Tullos through

Pittman was concealed fraudulently in an attempt to obtain the property at a value less than

what the property was actually worth. According to the assertions in the heirs’ complaint,

they had no reason to suspect any wrongdoing until they discovered the April 2002 deed to

Tullos.

¶12.   The trial court found that the heirs failed to exercise reasonable diligence in seeking

knowledge of the defendants’ alleged fraudulent conduct.

¶13.   The plaintiffs allege that their fraud claim could not have accrued prior to April 10,

2002. It is a factual issue as to whether the heirs exercised reasonable dilligence and first

discovered the alleged fraud on April 10, 2002. Miss. Code Ann. § 15-1-67 (Rev. 2003).

Thus, absent proof of any other knowledge the plaintiffs may have had regarding the alleged

fraud, the statute of limitations began to run on April 10, 2002, and the plaintiffs’ April 8,

2005, complaint was timely filed within the three-year limitation period.

       II.    WHETHER THE TRIAL COURT ABIDED BY MISSISSIPPI
              RULES OF CIVIL PROCEDURE 12 AND 56.

¶14.   The issue here is whether the trial court acted in accordance with Mississippi law in

converting the defendants’ motion to dismiss into a motion for summary judgment. More


                                              6
specifically, the question is whether the trial court was required to give the plaintiffs ten

days’ notice prior to the hearing for the converted summary-judgment motion. We find that

the trial court did not follow the proper procedure in converting the Rule 12(b)(6) motion into

a motion for summary judgment, because timely notice was not given.

¶15.   Rule 12 of the Mississippi Rules of Civil Procedure sets forth the proper procedure

for converting a motion to dismiss into a summary-judgment motion. Rule 12(b) provides

in part:

       If, on a motion to dismiss for failure of the pleading to state a claim upon
       which relief can be granted, matters outside the pleading are presented to and
       not excluded by the court, the motion shall be treated as one for summary
       judgment and disposed of as provided in Rule 56, and all parties shall be given
       reasonable opportunity to present all material made pertinent to such a motion
       by Rule 56 . . . .

Miss. R. Civ. P. 12(b). This Court looks at Rule 12 in conjunction with Rule 56 governing

motions for summary judgment. While this Court said in Walton v. Bourgeois, 512 So. 2d

698 (Miss. 1987), that it is not mandatory to require a ten-day notice of the hearing when a

Rule 12 motion is converted, we have more recently held that:

       before this Court can determine on appellate review if the non-moving party
       has had a reasonable time in which to file documentation in opposition to a
       Rule 12(b)(6) motion that has been converted to a Rule 56 motion for
       summary judgment, we must determine if the non-moving party has been
       afforded ten days[’] notice of the court's intention to conduct a summary
       judgment hearing on a date certain.

Palmer v. Biloxi Reg’l Med. Ctr., 649 So. 2d 179, 183 (Miss. 1994) (emphasis added).

Additionally, the Palmer court stated that:

       [r]ule 56(c) states, in part, that a “motion [for summary judgment] shall be
       served at least ten days before the time fixed for the hearing.” Therefore, the
       trial court must give the parties ten days[’] notice that it is converting the

                                              7
       moving party's motion to dismiss on the pleadings into a motion for summary
       judgment. Once the notice required by Rules 12(b) and 56 has been given, the
       trial court may then properly consider it as a converted motion for summary
       judgment along with any materials in support of or in opposition to the motion
       as of a certain day.

Id. (internal citations omitted).

¶16.   In the instant case, the trial judge converted the defendants’ motion to dismiss into a

summary-judgment motion because two exhibits were admitted into evidence during the

hearing on the motion to dismiss. The two exhibits were a copy of the appraisal

presumptively setting the value of the land at $500 an acre entered by the defendants and a

copy of the checks issued on Tullos’s regular account used to purchase the land entered by

the plaintiffs. At the hearing, the defendants’ motion to dismiss was the only motion

considered by the trial court. The trial court informed the heirs that he would consider the

parties’ exhibits and treat the defendants’ motion to dismiss as a motion for summary

judgment. At this point, before continuing with a hearing on the converted motion for

summary judgment, the trial court was required to give the heirs at least ten days’ notice of

the hearing. However, this did not occur.

¶17.   In a case involving similar procedural issues, a Rule 12(b)(6) motion to dismiss was

converted into a motion for summary judgment because the parties presented material outside

of the pleadings. Jones v. Regency Toyota, Inc., 798 So. 2d 474 (Miss. 2001). At the

hearing on Regency Toyota’s motion to dismiss, the trial court stated that it would convert

the motion to dismiss into a motion for summary judgment. Id. The trial court then granted

summary judgment during the hearing. Id. Jones appealed, asserting that she was not given

the ten-day notice of the summary-judgment hearing as required by Mississippi Rule of Civil

                                              8
Procedure 56(c). Id. at 475-76 (¶6). This Court stated: “While the conversion was proper,

the trial court failed to continue the hearing in order to allow Jones the opportunity to present

any evidentiary material she felt pertinent to survive the Rule 56 motion.” Id. at 476 (¶6).

¶18.   This Court specifically noted in Jones that no matter how baseless the claim may

appear to be, the Mississippi Rules of Civil Procedure require that respondents to a converted

summary-judgment motion “be given 10 days’ notice once a motion to dismiss is converted

to a motion for summary judgment.” Id. at 476 (¶9) This statement was in specific reference

to the lack of notice prior to an actual hearing, and this Court further held that, because of

this failure alone, “we must vacate the judgment.” Id.

¶19.   In the case before us, the defendants filed a motion to dismiss that was heard on

November 3, 2006. At that point in time, the trial court correctly converted the motion into

one for summary judgment based on the submission of two exhibits. The trial court

subsequently took the matter under advisement and entered its memorandum opinion on

November 30, 2006. We are mindful of the delay in time before the opinion was rendered.

However, we must also note that the hearing was not continued after the conversion to allow

for ten days’ notice prior to a summary-judgment hearing as is required by the Mississippi

Rules of Civil Procedure and the prior mandate of this Court in Jones. While the plaintiffs

sent a letter detailing additional evidence three days after the hearing, this act alone does not

waive the ten-day requirement. Therefore, this Court agrees with the dissent from the Court

of Appeals and finds that we must reverse the trial court’s holding and remand this case to

give the heirs an opportunity to take advantage of the procedural safeguards in place for

situations such as this as directed by Rule 56, Palmer, and Jones.

                                               9
       III.   WHETHER THE TRIAL COURT ERRED IN GRANTING
              SUM M ARY JUDGM ENT AS TO THE PITTM AN
              DEFENDANTS.

¶20.   In the instant case, the trial court dismissed all defendants based upon the perceived

lapse of the statute of limitations. Additionally, the court granted summary judgment as an

alternative means of dismissing the Pittman defendants. The court specifically stated in the

memorandum opinion that “even if the claims against the Pittman defendants in this action

were not time-barred, the Court would nonetheless be compelled to grant their motion for

summary judgment.”

¶21.   The trial court analyzed whether there was enough evidence to prove that a conspiracy

existed without allowing the plaintiffs time to conduct any discovery in order to bring forth

the needed proof. Therefore, when considering the motion for summary judgment, the trial

court had, and this Court on appeal has, only the heirs’ complaint (that has yet to be denied),

cancelled checks from Tullos’s regular account paying for the land, an appraisal of the land

submitted by the defendants, and the letter from Mr. Jennings.

¶22.   In the complaint, the heirs alleged that Tullos and Pittman effectuated the sale of the

land through the employ of fraud with the ultimate intention of Tullos acquiring the property

for himself at a lower-than-market-value cost. The trial court reasoned that the heirs had

failed to come forward with any evidence tending to prove the fraud, yet the court did not

allow the plaintiffs time to obtain evidence through discovery.

¶23.   In finding summary judgment appropriate for the Pittman defendants, the trial court

stated, “there is only an allegation that Pittman agreed to purchase, for $750 per acre, 420

acres of land (which had been appraised by an independent appraiser as being worth only


                                              10
$500 per acre), and that he conveyed the land to Tullos approximately 20 months later.”

(footnote omitted) (emphasis added).

¶24.   Defendants and the trial court also place great weight on this transaction occurring in

concurrence with or subsequent to, the closing of the estate Tullos was hired to help

administer. However, the plaintiffs’ theory is that Tullos undertook the duty to sell the

property and allegedly involved Pittman in the alleged scheme. While there is a factual

discrepancy as to the amount of Pittman’s involvement, the court again failed to allow the

heirs an opportunity to further develop the record in order to make a proper decision

concerning the Pittman defendants. Pittman’s knowledge or lack thereof is of material

importance.

¶25.   Although the proof in the record supporting the heirs’ allegation is circumstantial, the

heirs were not given an opportunity to further develop the record. It is unreasonable to say

that such an allegation, without an opportunity to conduct discovery or even a denial by

Pittman, is deserving of summary judgment. It was error for the trial court to have dismissed

such accusations as lacking evidence when the plaintiffs presented the best evidence

available to them, and they were not allowed an opportunity to obtain further information in

an effort to validate their assertions. Therefore, the combination of a complete lack of an

opportunity for discovery and the absence of an answer by the defendants precludes summary

judgment at this time.

                                      CONCLUSION

¶ 26. This Court is of the opinion that, based on the limited record herein, the statute of

limitations did not run, and the heirs should be able to further develop their arguments. It is


                                              11
also this Court’s opinion that the trial court erred when it converted the defendants’ motion

to dismiss to one for summary judgment without giving the heirs ten days’ notice before a

hearing on the converted motion for summary judgment.

¶27.   Furthermore, the trial court could not properly determine whether summary judgment

was appropriate for the Pittman defendants in this circumstance, where no discovery had

been conducted. In fact, motions to compel discovery were pending, no depositions had been

taken, no answers to interrogatories had been made, no responses to requests for production

of documents had been made, no pertinent affidavits had been filed, and, most importantly,

the defendants had not been allowed to deny the allegations made by the heirs in their

complaint. The trial court judge erred when he granted summary judgment as to the Pittman

defendants and concluded that no genuine issues of material fact existed, without even a

single denial of the allegations made by the heirs.

¶28.   Under these circumstances, it is premature to adjudicate the merits of the case on

summary judgment, because it could not be determined adequately whether there is a genuine

issue of material fact. Therefore, this Court reverses the summary judgment in favor of the

defendants and remands this case for the trial court to set a time for the defendants to file

their answer and allow the case to proceed.

¶29.   REVERSED AND REMANDED.

      WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON AND LAMAR,
JJ., CONCUR.    RANDOLPH, KITCHENS AND CHANDLER, JJ., NOT
PARTICIPATING.




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