IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60785

FULL HOUSE RESORTS, INC. and SILVER SLIPPER CASINO VENTURE, 

LLC,

Plaintiff – Appellants,

v.

BOGGS & POOLE CONTRACTING GROUP, INC.,

Defendant – Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:14-CV-223

Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

This case arises out of a dispute concerning the construction of a parking 

garage adjacent to a casino. The district court granted summary judgment for 

the construction company under Mississippi’s statute of limitations. Because 

we determine there is a fact issue as to the timeliness of the casino’s claims, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2017

Lyle W. Cayce

Clerk

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we reverse the judgment of the district court and remand for further 

proceedings.

I.

In 2006, plaintiff Silver Slipper Casino Venture1 contracted with 

defendant Boggs Contracting Group, Inc. to build a parking garage, which was 

completed in February 2007. The parking garage was built without placing 

rebar in the “pour strips,” which eventually led to concern about the structural 

soundness of the garage. One complete set of plans (“TO BOGGS plans”) 

showed rebar in the pour strips but another set of plans (“shop drawings”) did 

not. The parties dispute whether concrete was poured as an act of concealment 

to cover up the missing rebar, or merely as a step in completing the concrete 

pour strips necessary for the garage. 

After a 2008 arbitration between Silver Slipper and the contractor, Full 

House’s purchase of the casino, and Full House’s discovery of the missing 

rebar, Full House brought seven claims against Boggs related to the rebar. All 

of these claims were barred, however, because the three- and six-year statutes 

of limitations and of repose had run. Full House argued in the district court

that the statutes were tolled because Boggs fraudulently concealed the claims. 

The district court granted summary judgment for Boggs on this issue. Full 

House Resorts, Inc. v. Boggs & Poole Contracting Group, Inc., No. 1:14-CV-223, 

slip op. 6 (S.D. Miss. Oct. 5, 2015).

In reaching its decision, the district court reasoned that Mississippi law 

required an affirmative act of fraudulent concealment to occur after the 

underlying act in order to toll the limitations. Finding no evidence of a 

separate and affirmative act to conceal the alleged wrongful action, the district 

 

1 Silver Slipper contracted for the garage. Plaintiff Full House Resorts, Inc. purchased 

the land and improvements from Silver Slipper in 2012. 

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court granted Boggs’s motion for summary judgment, which effectively barred 

all of Full House’s other claims as being untimely. Id. at 6. 

II.

Summary judgment may only be granted when the facts are settled and 

the law dictates the result. Under Rule 56, “[t]he court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56. A court “must determine whether a genuine issue of material 

fact exists, rather than how that issue should be resolved.” Cole v. Chevron 

Chem. Co., Oronite Div., 427 F.2d 390, 393 (5th Cir. 1970). This court reviews 

a grant of summary judgment de novo. Kinsale Ins. Co. v. Georgia-Pacific, 

L.L.C., 795 F.3d 452, 454 (5th Cir. 2015). 

The Mississippi Code contains a general three-year statute of limitations 

(Miss. Code Ann. § 15-1-49(1) (West 2016)) and a six-year statute of repose for 

construction claims (Miss. Code Ann. § 15-1-41 (West 2016)). The tolling 

provision states that if “a person liable to any personal action shall 

fraudulently conceal the cause of action” from the person entitled to know 

about it, the cause of action shall functionally accrue when “such fraud shall 

be, or with reasonable diligence might have been, first known or discovered.” 

Miss. Code Ann. § 15-1-67 (West 2016). Fraudulent concealment requires both 

an “affirmative act or conduct [performed by the defendant that] prevented 

discovery of a claim,” and that the plaintiff performed due diligence to discover 

it. Stephens v. Equitable Life Assurance Soc’y, 850 So.2d 78, 84 (Miss. 2003).

There is no dispute that the casino’s lawsuit, without the tolling exception, was

untimely under both of the applicable statutes.

III.

We address the legal and factual issues in turn. Full House argues here 

that the district court erred when it required acts of concealment that occurred 

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after the underlying act, rather than merely separate from the underlying act.

Alternatively, Full House points out that there is evidence in the record of a 

separate act of concealment. We agree on both points.

Although Mississippi requires an affirmative act that prevented 

discovery of a claim, Stephens, 850 So.2d at 84, the law does not require that 

such an affirmative act occur “after” the wrongful act. Instead, it merely 

requires that the underlying wrongful act be distinct from the “fraudulent 

concealment.” While a distinct act of concealment may well come after an 

underlying wrongful act, the law requires only an affirmative act, not a 

subsequent affirmative act.

This is obscured by the fact patterns in two of our cases, both of which 

concern financial fraud. In both Ross and Liddell, the plaintiffs alleged that

fraudulent misrepresentation occurred, which caused them to purchase 

optional credit insurance in connection with loan agreements. Ross v. 

Citifinancial, Inc., 344 F.3d 458, 460–61 (5th Cir. 2003); Liddell v. First Family 

Fin. Servs. Inc., 146 F. App’x 748, 749–50 (5th Cir. 2005). The language used 

in both cases reflects the type of wrongful action at issue. It would be very 

difficult to affirmatively conceal a fraudulent inducement prior to the 

completion of the sale of financial products. Thus, both Ross and Liddell

discuss “subsequent affirmative acts” as a requirement for fraudulent 

concealment because the wrongful conduct at issue in both cases could only be 

fraudulently concealed subsequently. See Ross, 344 F.3d at 464 (holding 

plaintiffs needed “to prove an affirmative act of fraudulent concealment postcompletion of the insurance sales” to prevail); Liddell, 146 F. App’x at 750–51 

(disagreeing that the fraud was “self-concealing” and noting reliance on Ross). 

The Mississippi Supreme Court decisions support this analysis. As Full 

House noted, the Mississippi Supreme Court referred to “subsequent 

affirmative acts of concealment” in a case about credit insurance policies,

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Andrus v. Ellis, 887 So.2d 175, 181 (Miss. 2004), which contained facts very 

similar to Ross and Liddell. See id. at 176–78. This is distinct from the seminal 

Mississippi fraudulent concealment case, Windham v. Latco of Miss., Inc., 972 

So.2d 608, 609–10 (Miss. 2008), in which that court examined a claim for 

fraudulent concealment concerning leaking roofs of chicken houses. In 

concluding that fraudulent concealment could toll both a statute of limitation 

and a statute of repose, the Mississippi Supreme Court noted “that a high 

standard exists for proving fraudulent concealment,” but then went on to 

describe the test as only requiring that “(1) some affirmative act or conduct was 

done and prevented discovery of a claim,” which was “designed to prevent the 

discovery of the claim,” and that due diligence was performed to discover the 

fraudulent concealment. Id. at 614 n.8 (emphasis added). The Mississippi 

Supreme Court determined that “some affirmative act . . . designed to prevent

the discovery of a claim” was a high standard to prove fraudulent concealment, 

but it never specified that such an act must always be subsequent to the 

underlying wrongful conduct. See id. at 614 n.8, 616 (remanding for factual 

considerations on fraudulent concealment claim).

Additional Mississippi case law supports the conclusion that any

temporal requirement is fact-specific. See Channel v. Loyacono, 954 So.2d 415, 

423–24 (Miss. 2007) (requiring showing of “some affirmative act” that

“prevented discovery of a claim” and determining the plaintiffs had not shown 

that law firm fraudulently concealed their malpractice claims against the 

firm); Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 1056 (Miss. 2012) 

(requiring plaintiffs show “an affirmative act” prevented discovery of a claim 

and remanding for factual findings on an equitable estoppel claim). Some fact 

patterns may require a subsequent act to show an affirmative act of 

concealment. This case, involving an alleged breach of a construction contract,

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does not present such a situation. See Windham, 972 So.2d at 614 n.8

(requiring an affirmative, but not necessarily subsequent, act of concealment). 

However, even assuming arguendo that the law did require a subsequent 

act of concealment, there is a genuine issue of material fact that makes 

summary judgment inappropriate. Full House argues that Boggs committed 

two separate acts of concealment: first by pouring concrete into the pour-strips, 

and second by certifying that it had completed construction “according to plan.” 

Because Boggs issued this certification after construction was complete, Full 

House argues there is a fact question whether the certification was a 

subsequent affirmative act of concealment. Boggs argues that it truthfully 

certified the job had been completed according to plan, because the shop 

drawings did not show rebar, even though the TO BOGGS plans did. Because 

there is a genuine issue of material fact whether Boggs committed a separate 

act of fraudulent concealment when it certified completing the construction 

“according to plan,” summary judgment was inappropriate here, even under 

the district court’s more restrictive approach. 

IV.

Accordingly, we REVERSE the district court’s grant of summary 

judgment and REMAND for further proceedings consistent with this opinion. 

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