     Case: 12-60589    Document: 00512301296       Page: 1   Date Filed: 07/09/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                     FILED
                                                                     July 9, 2013

                                   No. 12-60589                     Lyle W. Cayce
                                                                         Clerk

KELLY BAKER, Guardian for Aaron Wayne Page,

                                             Plaintiff - Appellee
v.

RR BRINK LOCKING SYSTEMS, INCORPORATED,

                                             Defendant - Appellant



                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before JOLLY, GARZA, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Aaron Wayne Page (“Page”) was allegedly raped while in jail when he was
nineteen years old. He sued RR Brink Locking Systems, Inc. (“Brink”), among
others, claiming the rape occurred as a result of ineffective locks on cell doors.
In this interlocutory appeal, Brink argues that the district court erred in
rejecting its contention that the statute of limitations began running against
Page at the moment the alleged torts occurred because, even though at nineteen
years old he was under the age of majority, he was emancipated at this time by
operation of law based upon his felony record. The district court held that Page
continued to suffer from the disability of minority at the time of the torts, despite
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being emancipated, and, thus, that he timely commenced this action by filing
less than three years after his twenty-first birthday. We AFFIRM.
                                       I.
      On August 2, 2007, Page was a nineteen-year-old pre-trial detainee at the
Harrison County Adult Detention Center.         Page alleges that in the early
morning hours, another inmate was able to leave his own cell and enter Page’s,
where he assaulted and raped Page. Page further contends these events were
made possible, in part, by faulty locks Brink manufactured.
      Page initially filed suit in February 2009. In February 2011, he amended
his complaint adding Brink as a party and claims of negligence, strict liability,
and breach of implied warranty against it. Brink moved for summary judgment,
contending Mississippi’s three-year statute of limitations period, applicable to
personal injury and products liability, applied. Brink argued Page was an
emancipated minor when the alleged events occurred, because he was arrested
and charged as an adult more than sixteen times before turning 21. See MISS.
CODE. ANN. § 93-11-65(8)(a). As such, the statute of limitations began to run at
the time the alleged events occurred. Page countered that he continued to suffer
from the disability of infancy until he turned 21, and thus that his February
2011 amendment was timely. See MISS. CODE ANN. § 15-1-59.
      The district court found Brink’s arguments unpersuasive. It examined
Mississippi’s statute and case law, and determined that emancipation is a
concept separate and distinct from the disability of infancy. Accordingly, it
denied Brink’s motion for summary judgment.                Brink timely filed an
interlocutory appeal.
                                       II.
      We have appellate jurisdiction to decide this interlocutory appeal under
28 U.S.C. § 1292(b). “Questions of statutory interpretation are, of course,
reviewed de novo.” Carder v. Cont’l Airlines, Inc., 636 F.3d 172, 174 (5th Cir.

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2011). Where, as here, a federal court exercises jurisdiction over state law
causes of action based upon diversity of citizenship, see 28 U.S.C. § 1332, we
apply state substantive law as stated in the final decisions of the state’s highest
court. Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 (5th Cir. 1999). “When
there is no ruling by the state’s highest court, it is the duty of the federal court
to determine as best it can, what the highest court of the state would decide.”
Lampton v. Diaz, 661 F.3d 897, 899 (5th Cir. 2011) (internal quotation marks
omitted).
       The question presented in this appeal is whether an emancipated
minor—who is emancipated only based upon his record of felonies—is entitled
to the protection of the Mississippi savings statute, under which the disability
of infancy is not removed until a person reaches age twenty-one.1 MISS. CODE.
ANN. § 15-1-59. The Supreme Court of Mississippi has not answered this
question, but after thoroughly analyzing decisions in similar Mississippi cases,
as well as the Mississippi Code, we conclude that the answer is yes.
                                             A.
       We begin by examining the relevant provisions of the Mississippi Code,
which provide the framework for evaluating this case. There are several code
provisions that are applicable in reaching the answer to today’s question. First,
we consider Chapter 1, Title 15 of the Mississippi Code, establishing the savings
statute, which provides:
       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




       1
         As discussed below, the Mississippi Code allows for a court to remove the disability
of infancy prior to an individual reaching age twenty-one in certain circumstances. See MISS.
CODE ANN. § 93-19-1 et seq. In this appeal, however, there is no argument that a chancery
court ever issued a decree of removal of minority as to Page.

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       actions within the times in this chapter respectively limited, after
       his disability shall be removed as provided by law.2
MISS. CODE ANN . § 15-1-59. An “infant” for purposes of the savings statute is
any person under twenty-one years of age. MISS. CODE ANN. § 1-3-21.
       Title 93, meanwhile, deals with domestic relations, a seemingly distant
subject from our domain today. Section 93-11-65(8)(a) is entitled “Enforcement
of Support of Dependents,” and establishes the situations under which a child
may become emancipated, thus relieving obligations of parental support. It
states in relevant part:3
       The duty of support of a child terminates upon the emancipation of
       the child. Unless otherwise provided for in the underlying child
       support judgment, emancipation shall occur when the child:
             (i) Attains the age of twenty-one (21) years, or
             (ii) Marries, or
             (iii) Joins the military and serves on a full-time basis, or
             (iv) Is convicted of a felony and is sentenced to incarceration
             of two (2) or more years for committing such felony.
MISS. CODE ANN. § 93-11-65(8)(a) (Supp. 2010).
       Next, we look at Chapter 19 of Title 93, entitled “Removal of Disability of
Minority,” which details circumstances whereby the chancery court may remove
the disability of minority as to real estate rights and transactions for an
individual under twenty-one.            The statute further provides how such an
individual may apply for removal of disability, that the disability of minority
does not apply to married minors for purposes of actions involving marital



       2
         This provision only applies to statutes of limitations within Chapter 1, Title 15 of the
Mississippi Code. Pollard v. Sherwin-Williams Co., 955 So. 2d 764, 770 n.6 (Miss. 2007).
Page’s claims of products liability and personal injury are within reach of the savings statute
because they are encompassed by § 15-1-49’s three-year statute of limitations. Lincoln Elec.
Co. v. McLemore, 54 So. 3d 833, 835-36 (Miss. 2010).
       3
          The statute also provides other situations in which a court may determine
emancipation has occurred, including when a child discontinues full-time enrollment in school
and is at least eighteen years old.

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rights, and that persons eighteen years of age or older are competent to contract
in matters affecting personal property.4 MISS. CODE ANN. § 93-19-1 et seq.
Importantly, § 93-19-9 describes the terms of a chancery court’s decree of
removal of minority:
       The decree may be for partial removal of the disability of the minor
       so as to enable him to do some particular act proposed to be done
       and specified in the decree; or it may be general, and empower him
       to do all acts in reference to his property, and making contracts, and
       suing and being sued, and engaging in any profession or avocation,
       which he could do if he were twenty-one years of age; and the decree
       made shall distinctly specify to what extent the disability of the
       minor is removed, and what character of acts he is empowered to
       perform, notwithstanding his minority, and may impose such
       restrictions and qualifications as the court may adjudge proper.
MISS. CODE ANN. § 93-19-09.
       The plain language of the Code distinguishes between the two terms
“disability of infancy” and “emancipation,” as evidenced by the separate
treatment afforded to each under the provisions above. Each entails its own
consequences; and the Code provides for different means by which the disability
may be removed and emancipation may be effected.
                                            B.
       In this appeal, however, Brink contends that Page’s alleged emancipation5
had consequences outside those ascribed to emancipation in the Code.
Essentially, it argues that when Page was emancipated, the effect was to remove
his disability of infancy. The Code itself provides no support for this argument.
Thus, Brink relies upon Mississippi case law, which it argues establishes a rule
that a child who is emancipated ceases to suffer the disability of infancy because


       4
        This chapter also notes that persons eighteen years of age or older may participate
in physiological training.
       5
         Brink alleges Page was emancipated, but the court below did not render a finding on
this issue; instead, it held that emancipation does not remove the disability of infancy.

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of his emancipation.        This argument cannot prevail because it rests on a
predicate that mischaracterizes Mississippi law.
       Brink looks primarily to Ladner v. Logan, 857 So. 2d 764 (Miss. 2003), for
sustenance. That case, however, is no lifeline for Brink. Brink contends the
Mississippi Supreme Court “affirmed the trial court’s conclusion that the
children’s ‘disabilities of infancy’ had been removed prior to them turning 21
years old and that, as such, only the youngest son had a viable claim.” See Br.
of Appellant at 9-10. But the trial court made no such finding, and neither did
the Mississippi Supreme Court. In Ladner, Cheryl Ladner sought payment of
unpaid child support for her four children from her ex-husband, Woodrow Logan.
857 So. 2d at 765. The trial court chancellor noted both the dates at which each
child was emancipated6 and the date at which each reached the age of majority,
i.e., twenty-one. Ladner v. Logan, No. 19,882-D, at * 3 (Ch. Ct. Pearl River Cnty.
Miss. Mar. 27, 2002). It then held the child support claims of the three older
children were time-barred, as more than seven years had elapsed from the time
each reached the age of majority to the time they were joined as proper parties
in Ladner’s suit. Id. at *5-6.
       On appeal, the Mississippi Supreme Court addressed, inter alia,
“[w]hether the chancellor erred in his application of the statute of limitations as
it applied to the adult children.” 857 So. 2d at 771. Ladner’s argument on
appeal was that “since the youngest child of four children became emancipated
at the time of high school graduation, May of 1995, the statute cannot commence
to run against any Plaintiff or any of the children until May of 2002.” Id. at 772.
Thus, the issue before the court was not whether the statute began to run either
upon a child’s emancipation or upon his reaching the age of majority; instead,


       6
        The trial court does not clearly state the cause of each child’s emancipation, but the
dates appear to coincide with each child’s high school graduation or his ceasing full-time
enrollment in school after turning eighteen.

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the question was whether the statute remained tolled as to all the children until
the youngest child was emancipated.7 Id. The court found no support for the
proposition that the statute of limitations began to run against all the children
only after the youngest child became emancipated, and held that the trial court
correctly found the statute of limitations had run upon the claims of the three
oldest children. Id.
       In reaching this conclusion, the court relied upon Brown v. Brown, 822 So.
2d 1119 (Miss. Ct. App. 2002), in which Mrs. Brown sought payment of child
support for her two then-adult children from her ex-husband, Mr. Brown. Id. at
1120. The Brown court first noted § 15-1-59 tolls the statute of limitations until
the disability of infancy is removed. Id. at 1121. It then found that more than
seven years had elapsed since the Browns’ son reached age twenty-one, and thus
that his claim was barred. Id. It found the daughter’s claim was still viable,
however, as she had not yet turned twenty-eight. Id. Accordingly, the court
looked to whether each child had reached the age of majority to determine
whether the statute of limitations had run, not whether either had been
emancipated more than seven years prior.8 In neither Ladner nor Brown, then,
did the court find emancipation was tantamount to removal of the disability of
infancy for purposes of applying the statute of limitations.
       Next, Brink looks to the decision of the Mississippi Court of Appeals in
White v. Abel, 802 So. 2d 98 (Miss. Ct. App. 2001), and again fails to make a
persuasive connection in support of its argument. In that case, the question was

       7
        It is noteworthy that Ladner elected to argue that the statute was tolled until her
youngest child was emancipated—not when he reached the age of majority, a later
date—despite that the chancellor clearly held the statute was tolled until this child reached
majority.
       8
         The court does not mention emancipation, and it appears neither party contended
either child was emancipated prior to reaching the age of majority. Nevertheless, this case is
not helpful to Brink’s argument, as it does not equate emancipation with the removal of the
disability of infancy, as Brink seeks to do in this appeal.

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“[w]hether the lower court erred by admitting into evidence the affidavit of
minor, Tonya Able, which the [trial] court relied upon in holding the minor was
emancipated at age seventeen and the statute of limitations had run on this
action.” Id. at 100. Tonya’s mother, who brought the suit for back child support,
did not argue on appeal that the statute of limitations was tolled until Tonya
turned twenty-eight, but instead she argued that the lower court erroneously
had considered Tonya’s affidavit, executed when Tonya was approximately
twenty-six. The affidavit had undermined the mother’s claim for child support
because in it Tonya had waived all her rights and claims to any back child
support that her father may have owed. Id. at 100-01.
      On appeal, the court held that Tonya’s mother did not have standing to sue
for arrearage, because her capacity to sue only served as a conduit for Tonya,
and, at the time the suit was filed and the affidavit was executed, Tonya was an
adult (age twenty-six) and she had explicitly disclaimed any right to sue after
she reached majority. Id. at 102-03. It is true that the court concluded that, in
any event, the statute of limitations had run on the claim. Id. at 103. Brink
takes this statement and argues it clearly demonstrates that the statute of
limitations begins to run when a child is emancipated, not when she reaches the
age of majority—as Tonya’s claim would have been viable if the seven-year
statute of limitations were tolled until she turned twenty-one. The court’s
remark, however, was clearly non-binding dictum unrelated to the issue
addressed by the decision of the court. See In re Cajun Elec. Power Coop., Inc.,
109 F.3d 248, 256 (5th Cir. 1997) (describing dictum as a statement that “‘could
have been deleted without seriously impairing the analytical foundations of the
holding–[and], being peripheral, may not have received the full and careful
consideration of the court that uttered it’” (quoting Sarnoff v. Am. Home Prods.
Corp., 798 F.2d 1075, 1084 (7th Cir. 1986))).      Whatever its classification,
however, this court of appeals statement in White certainly can not now be relied

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upon for the proposition that emancipation of a child has the effect of removing
the disability of infancy when this question was never raised in the case;
furthermore, the state supreme court cases are in conflict with the consequences
of such a broad holding.9
        Finally, we should observe that Brink has relied solely upon cases that
have arisen in the context of domestic relations, and has referred us to no case
addressing the savings clause as it relates to tort claims similar to those at issue
here.       Indeed, each case upon which Brink relies addressed whether an
emancipated child’s claim for unpaid child support remained viable or had been
extinguished by the statute of limitations. Thus, even assuming each case
stands for the proposition Brink attributes to it, Brink at best has demonstrated
that emancipation, occurring before reaching majority age, may allow the statute
of limitations to begin to run against a child for purposes of collecting back child
support.      This demonstration is not ultimately helpful for Brink, as the
Mississippi Code makes clear that the disability of minority may be removed for
some purposes while remaining in place for other purposes. See MISS. CODE
ANN. § 93-19-9 (noting the decree of removal must “distinctly specify to what
extent the disability of the minor is removed, and what character of acts he is
empowered to perform notwithstanding his minority”).                      Furthermore, the
Mississippi statutes explicitly require a Chancellor to remove the disability of
minority from an individual under twenty-one before that individual can be
deemed not to suffer from the disability. See MISS. CODE ANN. § 93-19-9; Miss.
Unif. Ch. Ct. R. 7.03 (“In all cases for the removal of disability of a resident
minor, the minor must be produced before the Chancellor for observation and


        9
         Brink proffers one final case, Burt v. Burt, 841 So. 2d 108 (Miss. 2001), for support of
its argument. Again, however, the issue we are now addressing was not raised in that case.
Moreover, the language helpful to Brink’s argument comes from the partial concurrence and
partial dissent that two justices joined, and the majority opinion does not make any reference
to the savings statute.

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examination unless specially excused from doing so.”); Miss. State Tax Comm’n
v. Reynolds, 351 So. 2d 326, 328 (Miss. 1977) (holding the chancellor must find
a minor of “maturity, sound judgment and intelligence” to remove disability).
These statutes and cases make clear that removal of the disability of minority
does not arise automatically upon the occurrence of specified events except for
reaching the age of twenty-one; this limitation stands in stark contrast with
emancipation, which may be deemed to have automatically arisen upon the
occurrence of statutorily designated events. See MISS. CODE ANN. § 93-11-
65(8)(a) (detailing the conditions under which emancipation occurs). Brink’s
argument that emancipation triggers the automatic removal of disability of
minority is thus at odds with the Code’s plain requirements. Brink has offered
no reason to suggest that the courts of Mississippi would rule in its favor by
reading such a tension into the Mississippi Code.
                                       III.
      In sum, the Mississippi Code clearly distinguishes between the concepts
of emancipation and the disability of infancy, as well as the implications of each,
and Mississippi cases do not illustrate an intent to deviate from this clear
distinction. We thus hold that, under Mississippi law, the statute of limitations
did not begin to run against Page until he reached the age of majority. The
judgment of the district court is, therefore,
                                                                     AFFIRMED.




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OWEN, Circuit Judge, concurring in the judgment:
      This case was briefed to our court based on the argument that Page’s
disability of minority was removed by section 93-11-65(8)(a) of the Mississippi
Code.1 I agree that this section did not remove Page’s disability of minority for
purposes of permitting him to sue for his personal injuries. That is because, by
its own terms, section 93-11-65(8)(a) deals only with the duty of child support
upon emancipation of a child.2 It is found in Chapter 11 of the Mississippi Code,
which is entitled “Enforcement of Support of Dependents.” However, I do not
think it necessary to draw a sweeping distinction between “removal of disability”
and “emancipation,” as the panel opinion does, to decide the only issues that are
presented by this appeal. I therefore do not join the panel majority’s opinion in
this latter regard and concur only in the judgment.
      Chapter 19 of the Mississippi Code is entitled “Removal of Disability of
Minority” and addresses a number of circumstances in which the disability of a
minor may be removed. I note that it is at least arguable that Page’s disability
of minority may be partially removed by a provision found in Chapter 19, section
93-19-13,3 which is self-effectuating and does not require a decree from the
chancery court.4 Section 93-19-13 may have the effect of removing Page’s
disability of minority as to his personal injuries, at least under some
circumstances. That section of the Mississippi Code provides as follows:
      All persons eighteen (18) years of age or older, if not otherwise
      disqualified, or prohibited by law, shall have the capacity to enter
      into binding contractual relationships affecting personal property.



      1
          MISS. CODE ANN. § 93-11-65(8)(a) (2004 & Supp. 2012).
      2
          Id. (“The duty of support of a child terminates upon the emancipation of the child.”)
      3
          Id. § 93-19-13.
      4
          See Garrett v. Gay, 394 So. 2d 321, 322-23 (Miss. 1981).

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         Nothing in this section shall be construed to affect any contracts
         entered into prior to July 1, 1976.
         In any legal action founded on a contract entered into by a person
         eighteen (18) years of age or older, the said person may sue in his
         own name as an adult and be sued in his own name as an adult and
         be served with process as an adult.5
         A cause of action for personal injuries is personal property under
Mississippi law.6 A person eighteen years of age or older may enter into a valid
and enforceable contract to settle a claim for personal injuries, even if suit has
not been filed.7 However, we do not and should not reach questions regarding
the potential effect of this statute on Page’s claim in the case before us because
no arguments regarding this statute were presented to the district court, and
this provision of Mississippi law was not raised in Brink’s initial briefing in this
court.




         5
             MISS. CODE ANN. § 93-19-13.
         6
             See e.g., Garrett 394 So. 2d at 322-23 (Miss. 1981).
         7
             Id.

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