        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00628-COA

CHERI BROWN-HOWLE, AS CONSERVATOR                                      APPELLANT
OF THE ESTATE AND PERSON OF ELAINE S.
BROWN, A NON COMPOS MENTIS

v.

COMMUNITY BANK, CITIMORTGAGE INC.                                       APPELLEES
AND SOUTHERN WASTE DISPOSAL INC.

DATE OF JUDGMENT:                       04/10/2017
TRIAL JUDGE:                            HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:              LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                WAYNE E. FERRELL JR.
                                        BRADLEY S. CLANTON
ATTORNEYS FOR APPELLEES:                J. RICHARD BARRY
                                        REED COCHRAN DARSEY
                                        REID STEPHENS MANLEY
                                        JAMES CORNELIUS GRIFFIN
                                        MATTHEW RICHARD WATSON
                                        CHRISTOPHER DANIEL MEYER
NATURE OF THE CASE:                     CIVIL - TORTS-OTHER THAN PERSONAL
                                        INJURY AND PROPERTY DAMAGE
DISPOSITION:                            AFFIRMED - 10/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., FAIR AND WILSON, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   In this case, we must determine whether the circuit court properly granted summary

judgment in favor of Community Bank, CitiMortgage, and Southern Waste Disposal.

Finding no error, we affirm.

                      FACTS AND PROCEDURAL HISTORY
¶2.    On July 28, 2008, Elaine Brown obtained a mortgage loan from North American

Savings Bank, secured by her residential property located in Meridian, Mississippi. The

funds from the mortgage loan were transferred to Brown’s account at Community Bank.

Shortly thereafter, these funds were transferred to another account at Community Bank. The

account holders were Brown and her neighbor, Mike Holmes. The mortgage was eventually

assigned to CitiMortgage. Brown ultimately failed to make mortgage payments, and

CitiMortgage initiated foreclosure proceedings.

¶3.    On November 2, 2009, Brown filed a complaint in the Lauderdale County Circuit

Court against Mike Holmes, Angela Holmes (Mike’s wife), Community Bank, and Southern

Waste (Mike’s employer). Brown, claiming to be mentally incompetent, alleged undue

influence by the Holmeses in obtaining the mortgage. Brown also alleged that the Holmeses

misappropriated the loan proceeds, resulting in the foreclosure of her house. Brown also

alleged that Community Bank intentionally or negligently assisted the Holmeses in their plan

to misappropriate the loan proceeds. Brown further claimed that she lacked the legal

capacity to obtain the mortgage loan; thus, the transaction was void and unenforceable.

Brown later filed an amended complaint, adding CitiMortgage as a defendant.

¶4.    On November 13, 2013, Brown’s daughter, Cheri Brown-Howle, petitioned the

Lauderdale County Chancery Court to appoint her as Brown’s conservator. On March 3,

2015, the chancery court dismissed Brown-Howle’s petition due to her failure to meet the

requirements to establish a conservatorship.

¶5.    The circuit court dismissed the 2009 complaint without prejudice on January 29, 2015.



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The circuit court noted that Brown and her attorney had failed to complete the requirements

to have a conservator appointed, but that Brown and her conservator could refile the

complaint once a conservator was appointed and the chancery court approved the lawsuit.

Brown filed a motion to reconsider, which the circuit court denied. Brown appealed this

ruling, but the Mississippi Supreme Court ultimately dismissed her appeal.

¶6.    On May 29, 2015, Brown-Howle again petitioned the chancery court to appoint her

as Brown’s conservator. The chancery court granted the petition on June 22, 2015, and

approved the second lawsuit on March 7, 2016.

¶7.    On March 7, 2016, Brown-Howle, as Brown’s conservator, filed a second complaint

alleging the same claims as in the 2009 lawsuit. In August 2016, CitiMortgage filed a

motion for summary judgment alleging that the suit was barred by the three-year statute of

limitations. See Miss. Code Ann. § 15-1-49 (Rev. 2012). Community Bank and Southern

Waste filed similar motions. Brown-Howle responded that the statute of limitations was

tolled and that CitiMortgage’s foreclosure constituted a continuing tort.1

¶8.    After a hearing, the circuit court determined that Brown-Howle’s claim was barred

by the three-year statute of limitations and granted summary judgment for CitiMortgage,

Community Bank, and Southern Waste. A final judgment was issued on April 10, 2017,

dismissing the suit against CitiMortgage, Community Bank, and Southern Waste.



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          Because the mortgage loan was still in default, CitiMortgage scheduled the
foreclosure sale of the property for September 8, 2016. CitiMortgage agreed to postpone
the foreclosure sale until October 14, 2016. Brown-Howle filed a motion for a temporary
restraining order but failed to secure a hearing on the matter. The foreclosure sale occurred
as scheduled, and Mike Howle (Brown’s son-in-law) bought the property for $103,456.

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¶9.    Brown-Howle appealed, raising the following issues: (1) the circuit court erred in

finding that its order dismissing the 2009 lawsuit was a dismissal for failure to prosecute; (2)

Mississippi Code Annotated section 15-1-59 (Rev. 2012) operated to toll the statute of

limitations; (3) Mississippi Code Annotated section 15-1-69 (Rev. 2012) also tolled the

statute of limitations; and (4) both CitiMortgage’s and Community Bank’s actions constituted

a continuing tort.

                                STANDARD OF REVIEW

¶10.   The grant or denial of a motion for summary judgment is reviewed de novo.

Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013). We view the evidence

“in the light most favorable to the party against whom the motion has been made.” Id.

Summary judgment is proper when “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.” M.R.C.P. 56(c). “The movant bears the burden of persuading the trial judge that:

(1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he

is entitled to judgment as a matter of law.” Karpinsky, 109 So. 3d at 88 (¶11). Further, if at

trial, the movant would bear the burden of proof, he also bears the burden of production for

summary judgment. Id. But, the nonmovant may not “rest upon the mere allegations or

denials of his pleadings.” M.R.C.P. 56(e). The nonmovant must respond “by affidavits or

as otherwise provided in [Rule 56],” and he “must set forth specific facts showing that there

is a genuine issue for trial.” Id. “If he does not so respond, summary judgment, if



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appropriate, shall be entered against him.” Id.

                                        DISCUSSION

       I.     Dismissal of 2009 Lawsuit

¶11.   Brown-Howle first argues that the circuit court erred in finding that its order

dismissing the 2009 lawsuit was tantamount to a dismissal for failure to prosecute. As a

result, the circuit court determined that the three-year statute of limitations was not tolled.

See Knight v. Knight, 85 So. 3d 832, 837 (¶30) (Miss. 2012) (“[W]hen an action is dismissed

without prejudice for failure to prosecute, the statute of limitations does not toll, and the

parties are left in the same position as if they had never filed the action.”). The circuit court

relied upon Wilson v. Nance, 4 So. 3d 336 (Miss. 2009), where the supreme court upheld a

dismissal with prejudice for the plaintiff’s failure to comply with a court order to establish

a guardianship within ninety days. Id. at 346 (¶38). Here, the circuit court did not issue a

direct order to establish the conservatorship within a certain number of days. But the circuit

court held a hearing on March 25, 2015, to discuss Brown’s motion to reconsider the

dismissal. The circuit court learned that a petition for conservatorship had not yet been filed

and denied Brown’s motion to reconsider. Over four months later, on August 10, 2015,

Brown filed another motion to reconsider, along with a decree from the chancery court

appointing Brown-Howle as conservator.           After a hearing on the second motion to

reconsider, the circuit court discovered that the chancery court had not approved the lawsuit

as required and denied the second motion to reconsider. As previously stated, Brown-Howle

ultimately received approval from the chancery court and filed the second complaint on



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March 7, 2016.

¶12.   The fact is that Brown alleged in 2009 that she was mentally incompetent; however,

a petition to appoint Brown as conservator was not filed until four years later on November

13, 2013. Even then, the chancery court dismissed the 2013 petition for failure to meet the

necessary requirements to establish a conservatorship. Nothing happened until early 2015

when the circuit court ordered Brown to establish a conservatorship and seek the chancery

court’s approval if she wanted to proceed with her lawsuit. And faced with a possible

dismissal, Brown-Howle did not immediately file another petition to be appointed Brown’s

conservator.

¶13.   Here, we cannot find the circuit court abused its discretion in its ruling. Dismissal for

failure to prosecute is proper where the “plaintiff has been guilty of dilatory or contumacious

conduct[,] or has repeatedly disregarded the procedural directives of the court . . . .”

Hensarling v. Holly, 972 So. 2d 716, 720 (¶8) (Miss. 2007). This issue is without merit.

       II.     Section 15-1-59

¶14.   Brown-Howle contends that even if the three-year statute of limitations had expired,

the limitations period was tolled by section 15-1-59. This statute saves claims filed outside

the statute-of-limitations period if the person is of unsound mind at the time the cause of

action accrued. Id. Mississippi Code Annotated section 1-3-57 (Rev. 2014) states that “[t]he

term ‘unsound mind,’ when used in any statute in reference to persons, shall include persons

with an intellectual disability, persons with mental illness, and persons non compos mentis.”

¶15.   Here, Brown-Howle claims that Brown was mentally incompetent at the time the



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cause of action accrued; thus, section 15-1-59 applies. Although the appellees contend the

statute of limitations began to run on July 28, 2008—the date Brown signed the mortgage

documents—Brown-Howle contends that the statute of limitations began to run when Brown

became aware of the fraud. Brown-Howle does not indicate the exact date Brown became

aware of the fraud, only that it was between July 28, 2008, and November 2, 2009—the date

the first complaint was filed.

¶16.   “The Mississippi Supreme Court addressed the law regarding mental competency and

statutes of limitation in Shippers Express v. Chapman, 364 So. 2d 1097, 1100 (Miss.

1978)[.]” Brumfield v. Lowe, 744 So. 2d 383, 387 (¶20) (Miss. Ct. App. 1999). “The test

as to whether the claimant is so ‘mentally incompetent’ as to toll the running of the statute

of limitations, is this: Is his mind so unsound, or is he so weak in mind, or so imbecile, no

matter from what cause, that he cannot manage the ordinary affairs of life?” Id. (quoting

Shippers Express, 364 So. 2d at 1000). Additionally, Brown-Howle was required to prove

that Brown was mentally incompetent by clear and convincing evidence. Stroud v.

Progressive Gulf Ins. Co., 239 So. 3d 516, 521 (¶16) (Miss. Ct. App. 2017).

¶17.   After reviewing the record, we agree with the circuit court that the evidence produced

by Brown-Howle failed to create a genuine issue of material fact that her mother was

mentally incompetent at the time the cause of action accrued. The only proof presented by

Brown-Howle was the evaluation of Brown by Dr. Mark Webb. Dr. Webb examined Brown

on February 24, 2011, over two years after the date Brown alleges she was mentally

incompetent. In the mental evaluation, Dr. Webb notes that Brown, who was seventy-seven



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years old at the time of the evaluation, had medical problems in the past, including several

surgeries and anxiety. According to Dr. Webb, Brown stated that the medicines she had been

prescribed made her “out of it,” especially during the time period she befriended the

Holmeses. Dr. Webb noted that at the time of the examination, Brown was taking medicine

for her depression “as it relates to the loss of her memory and the guilt and embarrassment

of being taken advantage of when she was vulnerable.” Under “Mental Status Exam,” Dr.

Webb noted:

               Ms. Brown is an alert and cooperative, logical and coherent, anxious
       and depressed, white female who has a constricted affect. She is tearful. Her
       speech and psychomotor activity are within normal limits. She denies any
       hallucinations, delusions, or present homicidal or suicidal ideations. Insight
       and judgment are good as to her memory and concentration presently. She
       states to good sleep with a normal appetite and weight. She does not describe
       any manic, hypomanic, or eating disorder episodes.

¶18.   Dr. Webb noted that Brown was currently experiencing symptoms of anxiety and

depression but that her symptoms of dementia were “presently in remission.” After

examining Brown, Dr. Webb concluded that

              Ms. Brown was suffering with Dementia and Anxiety due to her
       medical problems and multiple powerful and potent medications that she was
       taking, over an approximate four-year period. During this four-year period,
       Ms. Brown was unable to protect her rights, interests, and/or medical concerns,
       and she was unable to seek help without assistance because of her
       mental/emotional impairment. Due to her dementia and anxiety, she was
       unable to seek help. That four-year period was a blur for Ms. Brown, which
       highlights that she was not of sound mind during that time period and
       therefore, she was not making appropriate decisions. She was a vulnerable
       adult.

¶19.   Dr. Webb did not explicitly refer to any medical records from the relevant time




                                             8
period;2 nor did Brown-Howle submit any of Brown’s medical records for additional support.

Rather, Dr. Webb only offered conclusory statements regarding Brown’s health without

citation to specific facts showing Brown was of unsound mind at the time the cause of action

accrued. This report was mostly based on what Brown herself told him she experienced two

years prior. In contrast, Brown testified in her deposition—taken November 13, 2013—that

she had never been diagnosed with dementia by a medical professional.

¶20.   Because Brown-Howle failed to create a genuine issue of material fact that Brown

was mentally incompetent at the time the cause of action accrued, the savings clause in

section 15-1-59 does not apply. This issue is without merit.

       III.    Section 15-1-69

¶21.   Section 15-1-69 also operates as a savings statute:

       If in any action, duly commenced within the time allowed, the writ shall be
       abated, or the action otherwise avoided or defeated, by the death of any party
       thereto, or for any matter of form, . . . the plaintiff may commence a new
       action for the same cause, at any time within one year after the abatement or
       other determination of the original suit . . . .

Brown-Howle contends this savings statute applies because the 2009 complaint was

dismissed as a matter of form. The Mississippi Supreme Court previously has ruled section

15-1-69 applies to cases “[w]here the plaintiff has been defeated by some matter not affecting

the merits, some defect or informality, which [the plaintiff] can remedy or avoid by a new

process . . . .” Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 31, 69 So. 710, 713

       2
        Dr. Webb’s evaluation states that he reviewed: “Pharmacy records, legal statutes,
Dr. Goodwin, and the complaint.” Dr. Webb never refers to Dr. Goodwin again. In her
deposition, Brown stated that she only saw Dr. Goodwin for a “brief time” and that Dr.
Goodwin had diagnosed her broken back.

                                              9
(1915). Matters of form have been found to include failure to adhere to notice requirements

and lack of subject matter jurisdiction. See Arceo v. Tolliver, 19 So. 3d 67, 75 (¶39) (Miss.

2009); Marshall v. Kan. City S. Rys. Co., 7 So. 3d 210, 216 (¶28) (Miss. 2009).

¶22.   A dismissal for failure to prosecute, however, is not a matter of form. See Jackpot

Miss. Riverboat Inc. v. Smith, 874 So. 2d 959, 961 (¶7) (Miss. 2004) (citing Deposit Guar.

Nat’l Bank v. Roberts, 483 So. 2d 348, 354 (Miss. 1986)), overruled on other grounds by

Knight v. Knight, 85 So. 3d 832 (Miss. 2012). Our supreme court has held that “the filing

of a complaint does not toll the statute of limitations if the complaint is later dismissed

without prejudice for want of prosecution.” Knight, 85 So. 3d at 838 (¶32). Thus, we find

section 15-1-69 does not apply. This issue is without merit.

       IV.    Continuing Tort

¶23.   Brown-Howle also argues that both Community Bank and CitiMortgage’s actions

constitute a continuing tort, “and the statute of limitations extends each day that

CitiMortgage continued to extort money and property from Brown that CitiMortgage knew

was stolen by” the Holmeses. “A ‘continuing tort’ is one inflicted over a period of time; it

involves a wrongful conduct that is repeated until desisted, and each day creates a separate

cause of action.” Stevens v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993). “A continuing tort

sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by

continual ill effects from an original violation.” Id.

¶24.   We find Brown-Howle’s argument unpersuasive. The wrongful conduct complained

of by Brown-Howle occurred when Brown obtained the mortgage loan in July 2008.



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Although the “continued ill effects” of the purported wrongful act resulted in the foreclosure

of Brown’s home, the wrongful conduct was not repeated. This issue is without merit.

¶25.   AFFIRMED.

    GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.       IRVING, P.J., NOT
PARTICIPATING.




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