Full House Resorts, Inc. v. Boggs & Poole Contracting Group, Inc.
1:14-cv-00223
S.D. Miss.Oct 5, 2015Background
- Plaintiffs Full House Resorts, Inc. and Silver Slipper Casino Venture, LLC sued contractor Boggs & Poole Contracting Group, Inc. (Boggs) and architect Ronald Lustig over missing lateral rebar in the Silver Slipper Casino parking garage discovered during repairs in 2013.
- Garage construction was completed and possession turned over to Plaintiffs on February 7, 2007; concrete pours and certifications were finished by April 2007.
- Plaintiffs filed the present suit in April 2014 asserting contract, negligence, warranty, fraud, indemnity, and equitable claims; defendants removed to federal court based on diversity jurisdiction.
- Defendants moved for summary judgment arguing the three-year statute of limitations and the six-year statute of repose (Miss. Code §§ 15-1-49, 15-1-41) bar the claims unless tolled by fraudulent concealment (§ 15-1-67).
- Plaintiffs argued fraudulent concealment tolled the limitations/repose periods because the missing rebar was not discovered until October 2013; discovery was allowed on the concealment issue.
- After discovery the court found no evidence of an affirmative post-accrual act by either defendant to fraudulently conceal the claims and granted summary judgment for both defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations/repose are tolled by fraudulent concealment | Plaintiffs: Boggs and Lustig fraudulently concealed missing rebar until 2013, so accrual is tolled under Miss. Code § 15-1-67 | Defendants: No affirmative act after accrual concealed the claim; alleged statements and documents during the project are part of the claim and cannot toll | Held: No fraudulent concealment — plaintiffs produced no evidence of a post-accrual affirmative concealment act; claims are time-barred |
| Whether plaintiff diligence excused tolling requirement | Plaintiffs: Discovery occurred upon suspicion; they could not have discovered earlier without defendants’ concealment | Defendants: Plaintiffs had possession and opportunity to inspect; no prevention of inspection shown | Held: Court need not resolve diligence because plaintiffs failed the affirmative-act element required for tolling |
| Whether equitable estoppel prevents statute of limitations/repose defense (re: Lustig) | Plaintiffs: Lustig’s representations induced reliance and payments, estopping him from asserting time defenses | Lustig: No evidence of reliance or detrimental change in position caused by any representation; plaintiffs could have protected themselves | Held: Equitable estoppel not available — plaintiffs offered no evidence of reliance/change of position; remedy is extraordinary and not warranted |
| Whether any other defenses (res judicata / collateral estoppel) required decision | Plaintiffs: Prior arbitration and litigation history noted but focused on tolling | Defendants: Also argued res judicata/collateral estoppel in earlier briefing | Held: Court did not address res judicata/collateral estoppel because statute-bar ruling disposed of case |
Key Cases Cited
- Ross v. Citifinancial, Inc., 344 F.3d 458 (5th Cir. 2003) (Mississippi law requires an affirmative post‑accrual act to toll the statute under § 15‑1‑67)
- Liddell v. First Family Fin. Servs. Inc., 146 Fed. Appx. 748 (5th Cir. 2005) (acts intrinsic to the transaction that gave rise to the claim do not satisfy the separate‑act requirement for fraudulent concealment)
- Stephens v. Equitable Life Assurance Soc’y of the U.S., 850 So.2d 78 (Miss. 2003) (two‑prong Mississippi test for fraudulent concealment: affirmative act plus plaintiff diligence)
- Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986) (movant bearing the burden on an issue must establish all essential elements at summary judgment)
- B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483 (Miss. 2005) (elements and cautious application of equitable estoppel)