        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-00057-COA

NURDAN AYDIN AND ADNAN AYDIN                                              APPELLANTS

v.

MARTY DANIELS AND MARTY DANIELS                                             APPELLEES
CONSTRUCTION, LLC

DATE OF JUDGMENT:                          12/13/2013
TRIAL JUDGE:                               HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED:                 LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  J. KEITH PEARSON
                                           SARAH LYNN DICKEY
ATTORNEYS FOR APPELLEES:                   H. SCOT SPRAGINS
                                           LAWRENCE JOHN TUCKER JR.
                                           JASON R. HOLLINGSWORTH
TRIAL COURT DISPOSITION:                   GRANTED APPELLEES’ MOTION TO
                                           DISMISS
NATURE OF THE CASE:                        CIVIL - PROPERTY DAMAGE
DISPOSITION:                               AFFIRMED - 06/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       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



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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



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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

¶6.    The standard of review for analyzing a trial court’s grant or denial of a motion to

dismiss is well settled:

       A motion to dismiss for failure to state a claim under Mississippi Rule of Civil
       Procedure 12(b)(6) raises an issue of law. This Court reviews questions of law
       de novo. When considering a motion to dismiss, the allegations in the
       complaint must be taken as true, and the motion should not be granted unless
       it appears beyond doubt that the plaintiff will be unable to prove any set of
       facts in support of his claim.

Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 966 (¶12) (Miss. 2003) (citation

omitted).

¶7.    The question before us is whether the Aydins provided enough information in their

pleadings to show a prima facie claim of fraudulent concealment such that the statute of

repose was tolled. The statute of repose is housed in Mississippi Code Annotated section 15-

1-41 (Rev. 2012) and states:

       No action may be brought to recover damages for injury to property, real or
       personal, . . . arising out of any deficiency in the design, planning, supervision
       or observation of construction, or construction of an improvement to real
       property, and no action may be brought for contribution or indemnity for
       damages sustained on account of such injury except by prior written agreement
       providing for such contribution or indemnity, against any person, firm[,] or
       corporation performing or furnishing the design, planning, supervision of
       construction[,] or construction of such improvement to real property more than
       six (6) years after the written acceptance or actual occupancy or use,
       whichever occurs first, of such improvement by the owner thereof . . . .



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¶8.    As noted above, the Rosses hired Daniels to build the home in question in 1995. The

Rosses lived in the home for several years before selling it to another party, who, in turn, sold

it to the Aydins. Regardless, the Aydins did not file suit against Daniels until 2011 – sixteen

years after construction was completed and the Rosses moved into the home. Essentially, the

Aydins were approximately a decade late in filing their action.

¶9.    Nonetheless, “fraudulent concealment of a cause of action tolls its statute of

limitations,” which would include a statute of repose. Windham v. Latco of Miss. Inc., 972

So. 2d 608, 613-14 (¶9) (Miss. 2008) (citations omitted). Specifically, the Mississippi

Supreme Court noted that “[i]f fraudulent concealment is proven, equity mandates that the

tortfeasor be barred from benefitting from the statute of repose . . . .” Id. at 614 (¶9)

(footnote omitted).

¶10.   Fraudulent concealment is proven under a two-part test. Stephens v. Equitable Life

Assurance Soc’y of the U.S., 850 So. 2d 78, 84 (¶18) (Miss. 2003). A movant must show that

“(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2)

due diligence was performed on their part to discover it.” Id. Furthermore, “there must be

some subsequent affirmative act by the defendant which was designed to prevent and which

did prevent discovery of the claim.” Andrus v. Ellis, 887 So. 2d 175, 181 (¶ 30) (Miss. 2004)

(citations omitted).

¶11.   Here, the Rosses requested that Daniels fill the gully with the material that had been

initially removed to form the gully – namely tree stumps, limbs, trunks, and the like. Daniels

complied with the Rosses’ request, and completed his work. After construction on the home



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was finished, Daniels took no further action on the property. Indeed, there is no evidence in

the record to show that Daniels committed a “subsequent affirmative act” to prevent

discovery of a claim. Rather, he filled the gully with the materials that had been taken out,

he completed his work on the property to the satisfaction of and at the direction of the home

owners, and he left. There is nothing in the record or the briefs on appeal that indicates

Daniels committed the requisite subsequent act of concealment. Rather, the Aydins assert

that Daniels’s “actions in burying the defective fill material [are] a subsequent affirmative

act of concealment.” However, this contention is misplaced.

¶12.   The act itself was filling the gully with the material which had been previously taken

out of the land. However, there was no subsequent act made in an effort by Daniels to

conceal any purported wrongdoing. There is no evidence before us showing that Daniels

attempted to mask his actions or prevent discovery of his actions. Conversely, the home

owners at the time in question directed him to take the actions he took with respect to filling

the gully. As such, it certainly cannot be argued that he was interested in concealing the

actions from anyone since he had been directed to do so by the Rosses themselves. We

cannot find fault in the circuit court’s determination that fraudulent concealment was not

properly pled, and thus the statute of repose was not tolled. This issue is without merit, and

the circuit court’s judgment is affirmed.

¶13. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART

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WITHOUT SEPARATE WRITTEN OPINION.




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