                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                               In the                               August 25, 2005
              United States Court of Appeals                     Charles R. Fulbruge III
                       for the Fifth Circuit                             Clerk
                           _______________

                             m 04-61076
                           Summary Calendar
                           _______________

                     TEDRICK D. LIDDELL, ET AL.,

                                                   Plaintiffs,

 CHERLY STAMPS; MARIE G. STEWART; MAGGIE L. CAMPBELL; ESTOLA CLAY;
CAREY G. COX; PATRICIA A. COX; AUTHORINE WHITE; DWIGHT C. WILKINSON;
   JAMES E. WILLIAMS; MAGGIE WILLIAMS; LILLIE WILSON; DIXIE YOUNG;
 WILLIE CHANDLER; SUSIE G. EDWARDS; CAROL L. WILLIS; MORRIS D. RUSH;
            ELSIE W. RUSH; CATHERINE GIVENS; BESSIE BRIM,

                                                   Plaintiffs-Appellants,

                               VERSUS

            FIRST FAMILY FINANCIAL SERVICES, INC., ET AL.,

                                                   Defendants,

                 FIRST FAMILY FINANCIAL SERVICES, INC.;
     FIRST FAMILY FINANCIAL SERVICES MANAGEMENT CORPORATION;
             ASSOCIATES FINANCIAL SERVICES COMPANY, INC.;
                 ASSOCIATES INVESTMENT CORPORATION;
                ASSOCIATES FIRST CAPITAL CORPORATION;
ASSOCIATES CORPORATION OF NORTH AMERICA; ASSOCIATES CAPITAL BANK;
            AMERICAN HEALTH AND LIFE INSURANCE COMPANY;
        CITIFINANCIAL RETAIL SERVICES, INC.; CITIFINANCIAL, INC.;
 CITIFINANCIAL OF MISSISSIPPI, INC.; COMMERCIAL CREDIT CORPORATION;
                   ASSOCIATES HOUSING FINANCE LLC,

                                                   Defendants-Appellees.
                                      _________________________

                              Appeal from the United States District Court
                                for the Southern District of Mississippi
                                            m 4:02-CV-43
                                  ___________________________



Before DAVIS, SMITH, and DENNIS,                           facts, including “the costs and benefits . . . of
  Circuit Judges                                           purchasing insurance.”2 Plaintiffs concede that
                                                           defendants did not engage in any acts of con-
JERRY E. SMITH, Circuit Judge:                             cealment after the sales transactions took
                                                           place.
    In this appeal, we address whether the dis-
trict court abused its discretion when it grant-                                  II.
ed defendants’ motion for summary judgment                    On appeal, the standard of review for the
on a determination that plaintiffs’ claims are             entry of summary judgment is de novo.3
barred by the statute of limitations. Because              Summary judgment is proper only where,
to toll limitations for fraudulent concealment             viewed in the light most favorable to the
under Mississippi law, there must be evidence              nonmoving party, the evidence shows that
of an affirmative act of concealment after the             there is no genuine issue as to any material fact
initial fraud, the district court appropriately            and that the moving party is entitled to judg-
dismissed plaintiffs’ claims for fraud in the sale         ment as a matter of law. FED. R. CIV. P.
of insurance. We affirm.                                   56(c).4

                          I.                                                     III.
    The plaintiffs sued to recover damages for                All parties agree that MISS. CODE § 15-1-
alleged fraudulent misrepresentations and                  49 is the applicable statute of limitations for
omissions by the defendants in the sale of con-            plaintiffs’ claims, establishing a three-year
sumer credit insurance that accompanied
defendants’ issuance of consumer loans.1 The
most recent of the transactions at issue tran-
spired in May 1998; plaintiffs sued in Febru-
ary 2002, more than three years later. Specifi-
cally, plaintiffs allege that defendants misrep-              2
                                                                Plaintiffs make a litany of charges that es-
resented and concealed numerous material                   sentially stem from an alleged comprehensive effort
                                                           to defraud customers in the sale of “unnecessary”
                                                           and “overpriced” supplemental credit insurance.
   1                                                          3
     Because the limitations question is dispositive            King v. Provident Life & Acc. Ins. Co., 23
for all the plaintiffs, we avoid examining distinct        F.3d 926, 928 (5th Cir. 1994).
subclasses of the plaintiffs and any separate
                                                              4
grounds for dismissal relied on by the district                 Am. States Ins. Co. v. Natchez Steam Laun-
court.                                                     dry, 131 F.3d 551, 553 (5th Cir. 1998).

                                                       2
limitations period for fraud claims.5 Under                that such affirmative acts need not occur after
Mississippi law, each of plaintiffs’ claims ac-            the time of the alleged fraud. Rather, plaintiffs
crued on the completion date of the loan trans-            assert that the defendants’ “pattern of con-
actions.6 Therefore, it is evident that plaintiffs         duct” at the time of the insurance sale was
have failed to bring their claims within the               “self-concealing.”8 The statute, speaking only
three-year statutorily defined period.                     of concealment, is seemingly ambiguous as to
                                                           whether the affirmative acts need occur after
    Plaintiffs contend, however, that defen-               the initial fraud or whether, to the contrary,
dants’ fraudulent concealment tolls the running            acts of concealment at the time of the sale, like
of the limitations period. Section 15-1-67 of              those alleged by plaintiffs, can also toll the
the Mississippi Code states that “[i]f a person            statute of limitations.
liable to any personal action shall fraudulently
conceal the cause of action from the knowl-                   The plaintiffs argue that because the fraud
edge of the person entitled thereto, the cause             here is of a “self-concealing” nature, they need
of action shall be deemed to have first accrued            only show evidence of the fraud itself to es-
at, and not before, the time at which such                 tablish the first element of fraudulent conceal-
fraud shall be, or with reasonable diligence               ment.9 Therefore, plaintiffs’ assertions of af-
might have been, first known or discovered.”               firmative acts at the time of the sale would be
Consequently, to establish fraudulent conceal-             sufficient to establish this first required ele-
ment, plaintiffs must demonstrate (1) that                 ment. Plaintiffs’ reliance on Texas precedent
defendants acted affirmatively to conceal the              is at best only persuasive, however, and not
fraud; and (2) that plaintiffs could not have              binding on our explication of Mississippi law.
discovered the alleged fraud with the exercise
of due diligence.7                                           Plaintiffs correctly note that at least one
                                                           court has recognized that the affirmative-act
   Although plaintiffs concede that they bear              question remains unresolved in Mississippi.10
the burden of demonstrating defendants’ af-
firmative acts of concealment, they contend
                                                              8
                                                                 Though it remains uncertain whether the dis-
                                                           trict court properly concluded that plaintiffs have
   5
      The statute provides a limitations period for        not alleged any affirmative acts of concealment, it
all claims that do not have a separately specified         is unnecessary to examine the question, because
limitations period.                                        plaintiffs concede that they have alleged no such
                                                           acts that occurred after the transactions at issue.
   6
     Stephens v. Equitable Life Assurance Soc’y,
                                                              9
850 So. 2d 78, 82 (Miss. 2003) (stating that fraud              Plaintiffs base their argument on Texas v.
claims “accrue[] upon the completion of the sale           Allan Constr. Co., 851 F.2d 1526 (5th Cir. 1988),
induced by such false representation or upon the           in which we interpreted the doctrine of fraudulent
consummation of the fraud”).                               concealment under Texas law as a means to toll the
                                                           limitations period of the Sherman Anti-Trust Act.
   7
     Id. at 83. (“[P]laintiffs have a two-fold obli-
                                                              10
gation to demonstrate that (1) some affirmative act              Phillips v New England Mut. Life Ins. Co.,
or conduct was done and prevented discovery of a           36 F. Supp. 2d 345 (S.D. Miss. 1998) (“The Mis-
claim, and (2) due diligence was performed on their        sissippi Supreme Court has not yet decided wheth-
part to discover it.”)                                                                         (continued...)

                                                       3
Though plaintiffs cite another district court                sippi law is unambiguous: Plaintiffs must
case for support of a lesser point,11 and that               prove a subsequent affirmative act of fraudu-
opinion does acknowledge that in 2002, the                   lent concealment to toll the limitations.”
question on the timing of affirmative acts re-
mained unresolved under Mississippi author-                     We adhere to the rule of stare decisis in in-
ity,12 the opinion plaintiffs cite was vacated a             terpreting state law.14 Absent a Mississippi
few months later by the same district judge.13               Supreme Court decision or statutory amend-
                                                             ment, the caselaw of this court interpreting
   Therefore, the plaintiffs’ entire argument                § 15-1-67 binds this panel.15 Because neither
must stand on this assumption that the timing                the Mississippi legislature nor the Mississippi
of the affirmative-act requirement is still un-              Supreme Court has spoken on this issue, we
decided in Mississippi and that, therefore, per-             are bound by Ross.
suasive precedent from Texas should control
here. We reject plaintiffs’ invitation to apply                 In Ross, we faced a case similar to that pre-
Texas law, because in Ross v. CitiFinancial,                 sented here. Plaintiffs alleged fraudulent mis-
Inc., 344 F.3d 458, 464 (5th Cir. 2003), we                  representations and omissions in the sale of
held that Mississippi law is in fact well settled            supplemental credit insurance products during
with respect to this issue, stating that “Missis-            plaintiffs’ loan application processes.16 Ap-
                                                             plying Mississippi law, we held that “[p]ursu-
                                                             ant to § 15-1-67, [p]laintiffs were required to
   10
     (...continued)                                          prove an affirmative act of fraudulent conceal-
er subsequent affirmative acts of concealment are            ment post-completion of the insurance sales in
required to toll the statute of limitations for fraud        order to toll the statute of limitations.”17
when the underlying action itself is based on
fraud.”).                                                       In spite of the district court’s proper reli-
   11
      Rainwater v. Lamar Life Ins. Co., 207 F.
Supp. 2d 561 (S.D. Miss. 2002) (remanding based                 14
                                                                  See Broussard v. S. Pac. Transp. Co., 665
on the fact that there was a possibility that underly-       F.2d 1387, 1389 (5th Cir. 1982) (en banc).
ing claim had been tolled by fraudulent conceal-
                                                                15
ment.), vacated, 246 F. Supp. 2d 546 (S.D. Miss.                   Ford v. Cimarron Ins. Co., 230 F.3d 828,
2003), appeal dism’d, 391 F.3d 636 (5th Cir.                 832 (5th Cir. 2000) (“Therefore, a prior panel’s
2004). Plaintiffs cite this case to support their ar-        interpretation of state law has binding precedential
gument that fraudulent concealment is “widely ac-            effect on other panels of this court absent a subse-
cepted by Mississippi Courts.”                               quent state court decision or amendment rendering
                                                             our prior decision clearly wrong.”).
   12
       Id. at 566-68. (2002) (granting plaintiffs’
                                                                16
motion to remand to state court because court                      Ross, 344 F.3d at 460. Specifically, “Plain-
could not find that there was “no possibility” of            tiffs alleged: their insurance premiums were ex-
plaintiffs recovery when under state law when the            cessive compared to market rates; they were in-
requirement of subsequent affirmative acts re-               flated by commissions; and their loan interest and
mained unresolved in Mississippi courts.)                    principal were increased by including the insurance
                                                             polices within the loan amounts or unnecessarily
   13
     See Rainwater v. Lamar Life Ins. Co., 246 F.            refinancing the loans.” Id.
Supp. 2d 546 (S.D. Miss. 2003), appeal dism’d,
                                                                17
391 F.3d 636 (5th Cir. 2004).                                        Id at 464.

                                                         4
ance on Ross for deciding this question, plain-           tations period set forth in § 15-1-49 is not
tiffs remain convinced that Allan Construc-               tolled. Because plaintiffs’ claims are untimely,
tion should control.18 That assertion is further          the district court correctly granted summary
undermined by the fact that Ross is not unique            judgment in favor of the defendants.20
in holding that § 15-1-67 requires subsequent
affirmative acts of concealment. In Rainwater                AFFIRMED.
v. Lamar Life Ins. Co., 391 F.3d 636, 637 (5th
Cir. 2004) (per curiam), which is the appeal in
a district court proceeding the plaintiffs cite in
support of their position,19 we remarked that
“[o]ur decision in Ross resolved any remaining
doubts that the district court may have had
about a substantial ground for a difference of
opinion on the doctrine of fraudulent conceal-
ment.” More importantly, the Mississippi Su-
preme Court recently indicated its agreement
by holding that “there must be some subse-
quent 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 (Miss. 2004) (citing Stephens,
850 So. 2d at 83-84).

   Plaintiffs, in relying on Texas precedent,
have not alleged any subsequent acts of con-
cealment against any defendant. Therefore,
pursuant to § 15-1-67 and Ross and Andrus,
they have failed to establish fraudulent con-
cealment. Consequently, the three-year limi-


   18
      Disregarding the district court’s reliance on
Ross in determining the applicable construction of
§ 15-1-67, plaintiffs’ brief on appeal lacks even a
single mention of Ross. Though plaintiffs’ brief
challenges Stephens by stating that “Stephens does
not change the law whatsoever from the holding of
Allan” because fraudulent concealment was never
presented in Stephens, such argument misses the
                                                             20
point that Ross firmly established the requirement              Because plaintiffs have failed to plead sub-
of an affirmative act of concealment subsequent to        sequent affirmative acts of concealment as required
the sale.                                                 by § 15-1-67, it is unnecessary to determine
                                                          whether, regarding the requirement of diligence as
   19
        See supra notes 11-13 and accompanying            a matter of law, they could have discovered the
text.                                                     fraud before limitations had run.

                                                      5
