IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-01366-SCT MONTY Y . BROWN, INDIV

IDUALLY

AND AS “MANAGER ONE” OF BROWNE, LLC; BROWNSV

ILLE, LLC; AND BROWNE, LLC

v. GEORGE C. McKEE, INDIV IDUALLY

AND AS “MANAGER” OF BROWNE, LLC AND AS “MANAGER” OF BROWNSV ILLE STATION, LLC; AND BROWNSV

ILLE STATION, LLC

DATE OF JUDGMENT: 08/11/2016 TRIAL JUDGE: HON. LARRY E. ROBERTS TRIAL COURT ATTORNEYS: CHARLES E. W INFIELD KEN R. ADCOCK W I LBUR O. COLOM SCOTT W INSTON COLOM COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KEN R. ADCOCK W I LLIAM CHRISTOPHER IVISON ATTORNEYS FOR APPELLEES: ASHLYN BROW N MATTHEW S CHARLES E. W INFIELD NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED - 05/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. T h e t r i a l c o u r t g r a n t e d s um m ary judgm ent in f avor of George C. McKee a n d Brownsville Station, LLC, dism issing Monty Y. Brown’s claim s against them

. Brownappeals, arguing the judge wrongly granted sum m ary judgm ent without f irst a l l o w i n g discovery

. W e disag ree. Had sum m ary judgm ent been granted o n the m erits—or lack thereof —of Brown’s case, we would agree Brown s hould have been a f f orded an opportunity

to conduct discovery under Mississippi Rule of Civil Procedure 56(f ). But the judge did not grant s u mma r y j u d g m ent on the m erits. He granted it based o n the clear running of the

st a t ute of lim itations. And, as the trial judge r ightly f ound, none of Brown’s discovery requests were aim ed at establishing his claim s were tim e l y . Instead, they w ere zeroed in on proving his untim ely claim s. ¶2. Theref

ore, the trial j udge did not abuse his discretion by deny ing Brown’s Rule 56(f )

m otion f or a continuance. W e af

f irm the judgm ent dism issing Brown’s untim ely claim s. B ackground Facts and Procedural History
I. Brow n’s Divestm ent of Brow n sville Station ¶3. Brown and McKee are f orm er business partners. At one tim e they e ach owned a f if ty

percent interest in Brownsville Station, which owned and operated an apartm ent com plex
in Starkvil l e , M i s sissippi. But beginning i n 2 003, B rown b egan s elling his i nterest to McKee. From July 2003 to January 2006, through a s erie s o f f o u r agreem ents, Brown transf erred a ll his interest units to McKee in exchange f or $150,000 and title to the com pany

2tractor. 1 As part of the f i nal agreem ent, b oth parties agreed t o a f ull and f inal release of any and all claim s against each other.
II. Brow n’s Com p laint Against McKee and Brow n sville Station ¶4. For six y ears, Brown had no dealings w ith McKee or Brownsville Station. Then, in Sep t e mb e r 2 012, Brown received notice f r om the Secretary o f State t hat McKee had f iled articles o f reinstatem ent f or Brownsvil l e Station and its s ubsidiary , BrownE, LLC. According t o B rown, the Septem be r 2 012 notice prom

pted him to tell h is boss about his
f orm er business relationship with M cKee. And his boss, who was also an a t torney , suggested McKee had engaged in wrongdoing. ¶5. So on April 13, 2013—alm ost ten y ears af ter the f i rst transf e r a nd seven y ears af

ter the f inal transf

er—Brown sued McKee and Bro w n s v i l l e Station in the Circuit Court of Oktibbeha County

. B rown’s com plaint alleged t hat McKee had been Br o w n ’ s p ersonal attorney b ef

ore they b ecam e business partners. Brown is a licensed general c ontractor, who had b uilt s everal apartm e nt buildings bef ore going into business with M c K e e . B a s e d on Brown’s experience, McKee proposed t hat he and Brown enter a j oint venture to build and

1 T h e f irst tran sf er o ccu rred in Ju ly 2 0 0 3

. B r o w n ex ecu ted a sto ck sale tran sf errin g to M cK ee th ree o f h is o n e h u n d red in t erest u n its i n B ro w n sv i l l e S t a t i o n in ex ch an g e f o r $ 4 ,5 0 0

. B ro w n also g ran ted M cK ee an o p tio n to p u rch ase B ro w n ’s rem ain in g n in ety -sev en in terest u n its f

o r $ 1 4 5 ,0 0 0 an d title to th e co m p an y tracto r. A m o n th later, in A u g u st 2 0 0 3 , th e tw o e n t e r e d i n t o a seco n d ag r eem en t. B ro w n so l d M c K ee ad d itio n al in terest u n its in e x c h a n g e f

o r $ 9 0 , 4 2 1 .8 0 an d title to th e tracto r, a s w ell as o th e r c o m p an y p ro p erty

. F o llo w in g th e seco n d ag reem en t, B ro w n b ecam e a 1 7 % in terest h o ld er an d M c K e e an 8 3 % in terest h o ld er o f B ro w n sv ille S tatio n . A th ird ag reem en t w as ex ecu ted in D ecem b er 2 0 0 3 , in w h ich B ro w n g ran t ed M cK ee a c o n d i tio n al o p tio n to p u rch ase B ro w n ’s 1 7 % in terest f o r $ 5 5 ,0 7 8 .2 0

. T h e p air en tered th eir f o u rth an d f

in al ag reem en t in Jan u a ry 2 0 0 6

. B ro w n t ran sf erred h is rem ain in g in terest in th e L L C to M c K ee f

o r $ 5 5 ,0 7 8 .2 0

. 3o perate an upscale apartm ent com plex in Starkville. Brown would be responsible f or t h e construction side, and McKee would handle the legal and f inancial aspects. 2 ¶6. To carry out this venture, McKee f orm ed a l im ited liability com pany , B rownE, which
McKee a nd Brown o w ned and controlled f if ty / f if ty

. W hen t he initial phase of the apartm ent

com plex was alm ost c om

plete, however, the City of S tarkvill e a d o p ted an ordinance prohibiting developm ent of new, unplatted apartm ents. According to Brown, this ordinance “had t he ef

f ect o f stopping f

urther growth” of Brown and McKee’s project. It also was the
im p etus f or McKee’s plot to get rid of B rown, whose construction services were no longer needed. ¶7. Brown’s com

plaint alleged that McKee f orm ed Brownsville Station, which becam e the sole owner o f BrownE. T hough Brow n o w n e d a f if ty -percent interest in Brownsville Station, he asserted McKee f orm ed the new LLC “solely to provide a vehicle to take secret

or unif orm ed [ s ic] advantage of [ Brown] by enabling [ M cKee] , a mo ng other things, to change provisions of B rownsville LLC’s Operating Agreem ent without [ Brown’s] inf orm ed
consent.” Brown f

u rther a lleged that, during t he 2003-2006 transactions, M c K e e hid
im p ortant f inancial inf

orm ation and d oc u me n t ation a b out Brownsville S tation and its true value, violating the f

iduciary d uties McKee owed as b oth Brown’s attorney and f ellow LLC

m em ber. Brown claim ed M cKe e ’ s action led to Brown’s f i nancial detrim ent. Brown had trusted M cKee to provide all re l e v ant inf orm ation about the com

pany . Instead, McKee f raudulently

induced Brown to sell his interests below m arket value.

2 According to Brown’s com plaint, McKee had o rally p r o mi s e d “to t ake care o f ” Brown as f

ar as legal m atters went. 4¶8. Brown’s e ight-count comp l a i n t 3 s o u g h t a constructive trust over f if ty percent of Brownsville Station a nd the disgorgem ent of a n y f ees and r evenue Brown would have received had he rem ained a f if ty -percent owner.
III. McKee’s and Brow nsville Station’s Response ¶9. On July 15, 2 013, through s eparate responses, both d ef endants denied the allegations
in Brown’s com

plaint. Both also m oved to transf er the com

plaint to chancery

court and to dism iss the a ction based on the statute of lim itations. On April 24, 2 014, while the m otions

to transf er and dism iss were still pending, the def endants f iled a joint m otion f

or sum m ary judgm ent, asserting the sam e s tatute-of -lim itations argum e nt. They a lso pointed to the f ull and f inal r elease f

rom the January 2006 f

inal agreem ent, as well as the testim ony o f attorney Dolton McAlpin. ¶10. A t t h i s p o i n t , t h e o nly discovery not opposed by the def endants was B r o w n ’ s deposition o f M c A l p in. 4 According to McAlpin’s s worn af f idavit and d eposition, Brown had sought out and rec e i v e d M cAlpin’s independent legal advice a b out the January 2006 f

inal
agreem ent, w h i ch Brown signed and notarized in M cAlpin’s o f f ice. I n McAlpin’s view,
McKee had done nothing to im properly inf

luence the advice McAlpin gave. Nor did McKee ask McAlpin to c onceal any inf o rm ation. According t o McAlpin, t here had been no reason

3 B ro w n ’s co mp l a i n t lists h is c au s es o f actio n as “u n d u e in f l u e n c e,” “b reach o f f id u ciary ag reem e n t b y atto r n e y , ” “b reach o f f id u ciary d u ty as m an ag er,” “b reach o f f id u ciary d u ty : tru st a n d co n f id en ce,” “n e g l i g en t m isrep resen tatio n ,” “f rau d u l en t m is r e p r e s e n t atio n ,” “ b reach o f im p lied co v en an t o f g o o d f aith an d f air d e alin g ,” “f

rau d : d eceit an d co n cealm en t,” an d “acco u n tin g : co n stru ctiv e tru st.”

4 M cK ee an d B ro w n sv i lle m o v ed to q u a sh a l l o th er d isco v ery req u ests as in tru siv e an d n eed less, g iv en th at, as a m atter o f law , B ro w n ’s claim s w ere u n tim ely

. 5to believe the circum stances surrounding the transf e r w ere a n y

thing but f

ully discoverable by Brown.
IV. Brow n’s Rule 56(f) Motion to Postpone ¶11. Brown opposed the m otion f or sum m ary judgm ent with his own m otion. H e r e q u ested the sum m ary -judgm ent ruling be postponed under Mississippi Rule of Civil Procedure 56(f ). According to Brown, this rule e ntitled him to the discovery he had requested through pending

m otions to c om

p el b ef ore the t r i a l c o urt ruled on the s u m m ary -judgm ent m otion. Specif ically , B rown wanted to s ee docum ents r elated to the value of Brownsville Station at the tim e Brown transf

erred his interest and to depose McKee on the c i r cum stances surrounding the transf

er. 5 ¶12. B r o w n a l s o a r g u ed the statute of lim itations had been tolled f o r thre e r e a s o n s : (1) because McKee h a d acted a s Brown’s a ttorney , i t w a s r e a s onable f or B rown not to discover McKee’s wrongf ul actions; (2) McKee had f raudulently concealed B rown’s cause

5 B ro w n c laim e d h e n eed ed th e f o llo w i n g d o cu m en ts related to B ro w n sv ille S tatio n ’s v alu e a t t h e t i m e o f th e tran s f er: (1 ) lo an d o cu m e n ts f o r B ro w n sv ille S tatio n ; (2 ) b an k acco u n t statem en t s f

o r B r o w n s v i l l e St a t i on; ( 3) f i n a n cial statem en t s f

o r B ro w n sv ille S tatio n ; (4 ) ap p raisals o f th e p ro p erty o f B ro w n sv i lle S tatio n ; an d ( 5 ) o p e r a t i n g a g reem en ts f o r B r o w n E an d B ro w n sv ille S tatio n . H e also w an ted to d e p o se M cK ee o n th e f o l lo w in g i s s ue s : ( 1) McKee’s r epresentation of Brown; (2) the operating agreem ent f or BrownE and Brownsville Station; (3) t he decision to f o r m B r o w n s v i lle Station; ( 4) the July 6, 2003 Stock Sale a nd Option C ontract; (5) the August 7, 2003 Share Sale and T ractor Contract; (6) the Decem ber 2003 contract between Brown and McKee; (7) January 2006 sale and release; (8) the hiring of Dolton McAlpin; (9) why McKee w ithheld im

portant f inancial docum e nts f

or Brownsville Station f

r om Brown prior to Brown selling his shares; (10) what legal representation, if an y , M c K e e b e lieved Brown had at the dif

f e r e nt sales of his shares; and (11) the reasons f or each p urchase of Brown’s shares. 6of a ction; and (3) McKee was equitably estopped f rom asserting the statute of lim itations as a def ense. V. Trial Court’s Judgm ent ¶13. Af ter deny ing the pending m otion to transf er, the trial judge denied Brown’s m otion to postpone and granted the def endants’ m otion f

or sum m ary

judgm ent. The judge agreed with M cKee and Brownsville Station that Brown had f iled his action at l east f

our y ears too late. Brown’s claim s accrued, a nd thus the three-y ear statute of l im itations b egan to run, by January 2006—the tim e o f his alleged injury

. A nd none of Br o w n’s tolling argum ents applied. Specif

ically , the trial judge f

ound the “discovery rule” did not a p ply , because
B r own’s alleged injury was not latent. I nstead, the true value of the com pany w a s discoverable at the t im e o f the transf er. And Mississippi Code S ection 15-1-67’s f r audulentconcealm e nt provision w as inapplicabl e b e c ause Brown could not dem onstrate McKee engaged in som e af

f irm ative act t o prevent Brown f rom discovering his claim s. Finally , the extraordinary

rem edy of equitable estoppel did not apply because Brown could point to no action or m isrepresentation by McKee to justif

y tolling the statute of

lim itations. ¶14. The t rial judge also f ound B rown had f

a iled to dem onstrate additional discovery w as warranted, because the discovery Brown sought “would not answer the n ecessary predicate question of when Brown’s claim accrued, whether h e had a latent injury , and when he knew

or should have known of

his claim s.” Instead, the inf orm ation Brown sought “would only advance a poten t i a l f

i nding regarding the extent of Brown’s alleged d am ages.” And “discovery r elated to the d egree o f harm

. . . is of no consequence to the def endants’ m otion.”

7Moreover, the trial c ourt noted Brown should h ave in his p o s session the inf orm ation
necessary to prove w hen he r easonably discovered h is injury and thus did not need discovery
f rom McKee. Because sum m a ry judgm ent had been granted and Brown’s Rule 56(f ) m otion had been denied, the trial court dism issed Brown’s pending m otions to com pel as m oot. ¶15. Af ter the trial court entered its f inal judgm ent, Brown appealed. 6
Discussion ¶16. “Rule 56(b) perm its a def e n d a n t t o mo v e f

or sum m ary judgm ent ‘at a n y tim e.’”
Roberts v . Boots Sm ith Oilfield Servs., LLC , 2 00 S o. 3d 1022, 1026 (Miss. 2016) (quoting Miss. R. C iv. P. 5 6 (b)). Under Rule 56(c), “The judgm e nt s ought shall be rendered f orthwith
if the pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af f idavits, if any , show that there is no genuine issue as to any m a terial f act and that the

m oving party

is entitled to a judgm ent a s a m atter of law.” Relevant to this case, sum m ary judgm ent shall be granted if no genuine issue o f m aterial f act exists c o ncerning t he question of t he running of the s tatute of lim itations. Sm ith v. Sanders , 485 So. 2d 1051, 1053 (Miss. 1986). A nd we r eview the grant of sum ma r y j u d g m e n t d e novo. Prescott v. Leaf River Forest Prods., Inc. , 740 So. 2d 301, 308 (Miss. 1999). ¶17. “But if a sum m a ry -judgm ent m otion i s f iled bef ore d iscovery is com

p l e t e , t h e t r i al

court m ay p o s tpone ruling o n the m o tion to perm it depositions to be taken and other discovery to be had.” Roberts , 200 So. 3d 1022, 1 026 ( citing Miss. R. Civ. P. 5 6(f ); Owens

6 T h e o rd er g ran tin g su m m ary j u d g m en t an d d en y in g d i sco v ery d id n o t d i sp o se o f th e d ef en d a n t ’s co u n t erclaim s. B u t p u rsu an t to M i ssissip p i R u le o f C iv il P ro ced u re 5 4 (b ), th e trial co u rt certif

ied th e j u d g m en t as f

in a l, p av in g th e w ay

f o r B r o w n to f

ile an ap p eal. 8v. Thom ae , 759 So. 2d 1 117, 1 1 2 0 ( M i s s . 1999)). W e review the denial o f a Rule 56(f )

m otion to continue f

or abuse of

discretion. Prescott , 740 So. 2d at 307. ¶18. W i th this standard in m i nd, af ter de novo r eview, we agree there are n o genuine issues of m aterial f

act concerning the running of the statute of l im itations. Brown’s claim s are indisputably tim e-barred. Moreover, t he trial c o urt did not abuse its discretion when it denied
Brown’s m otion f

or postponem ent to c onduc t discovery , as none of Brown’s discovery requests were aim ed at proving his untim ely claim s were not barred.
I. Brow n’s claim s accrued by January 2006. ¶19. Both sides agree Section 15-1-49’s three-y ear statute o f lim i tation applies to Brown’s claim s. Miss. Code Ann. § 15-1-49(1) (Rev. 2012). Brown sued McKee and the LLC they jointly owned, B rownsville Statio n , f o r actions McKee allegedly took f rom 1997 to 2006, which c ulm inated in Brown selling the rem ainder of h is interest in th e a p artm ent com plex

to McKee in January 2006. So Brown’s cause of action against McKee accrued in January 2006, when “it [ c am e] i nto existence as an enf orceable c laim

. ” Anderson v. LaV ere , 136 So. 3d 404, 411 (Miss. 2014). Under Section 1 5-1

- 4 9 ( 1 ) , Brown had to f ile suit w i thin three
y ears f rom t he com

p letion of the sale “and not af ter.” But Brown did n ot f ile his com

plaint until April 2013—y ears af ter Section 15-1-49’s tim e bar. Thus, cle a r ly , M cKee and Brownsville Station are entitled to sum m ary judgm ent. ¶20. B r o w n s e e k s r e f

u g e i n Section 15-1-49(2)’s tolling provision. But this provi s i o n applies only to actions “involv[ i ng] latent injury or d isease.” Miss. Code Ann. § 15-1-49(2) (Rev. 2012). Here, Brown’s alleged injury —underselling his interest in the com pany —was

9n o t l a t e n t

. The t rue value of the apartm e nt com plex at the tim e of sale was reasonab l y discoverable—especially to som eone like Brown, who according t o his own pleading had experience building apartm e nts in Starkville. That Brown c hose t o trust M c K e e a n d not question the n um

bers, d o c u me n t s, or McKee’s m otives d oes n ot m ake this inf orm ation “inherently

undiscoverable.” 7 ¶21. Moreover, Section 15-1-49(2) delay s a claim f rom a c cruing only u ntil “the plaintif f has discovered, or b

y reasonable diligence should have discovered, t he injury .” (Em phasis added.) And, here, reasonable diligence should have led to the discovery of Brown’s alleged injuries well bef

ore April 2010—three y ears bef ore he f iled his com

plaint. But, by his own

a d mi s s i o n , Brown did not exercise reasonable diligence. Instead, he did nothing f or si x
y ears. ¶22. Sending this issue back f or discovery under Rule 56( f ) w i l l n o t l e a d to a dif

f erent result. W hy would Brown need discovery f rom McKee to show when he (Brown) reasonably learned of his injury ? W hat ef f o rts Brown took to discover his c laim s is i nf orm ation within
Brown’s k

nowledge—and not in McKee’s a n d Brownsville Station’s exclusive possession.
See Prescott , 740 S o. 2d a t 308 (requiring “the party invoking Rule 56(f )

. . . [ to] show what steps have been t aken to obtain a c c e s s to the inf orm a tion allegedly within the exclusive possession of the other party ”). Because Brown produced no such inf orm ation but instead asserted t he opposite—that he d i d nothing f or six y ears—the trial judge correctly f ound there

7 Donald v. Am oco Prod. Co. , 735 So. 2d 161, 168 (Miss. 1999). 1 0w a s n o genuine issue of m aterial f act that Brown’s c laim s a ccrued i n J anuary 2006, wh e n Brown signed the f

i nal agreem e nt.
II. Discovery w o uld not enable Brow n to establish a f r a udulentconcealm ent claim . ¶23. Im portantly , all of B rown’s claim s a ccrued by January 2006—including those based

on McKee’s alleged f

raud. “ A f

raud claim ‘accrues upon the com pletion of t he sale induced by such f alse representation, or upon the consum m ation of the f raud.’” Sanderson Farm s Inc. v. B a llard , 917 So. 2d 783, 789 (Miss. 2005) (quoting Dunn v. Dent , 1 69 Miss. 547,
153 So. 798 (1934)). And, here, the sale McKee’s f raud allegedly

induced was com

pleted by January 2006. So t his is when McKee’s f raud was consum m ated and the three-y ear clock started to run. ¶24. Brown asserts h e is s a v ed f rom this tim e-bar because of “f raudulent concealm ent.”
But f raudulent c oncealm e nt is a statutory tolling provision 8 that r equires “the party purporting that there was f r audulent concealm ent” t o sh o w two things—“(1) som e af f irm ative act o r conduct was done and prevented d iscovery o f a claim , and (2) and due diligence was perf

orm ed on their p art to discover it.” Channel v. Loyacono , 954 So. 2d 415,
423 (Miss. 2007) (quoting Stephens v. Equitable Life Assurance Soc’y of U.S. , 850 So. 2d 78, 84 (Miss. 2003)). And Brown has shown neither.

8 U n d er S ectio n 1 5 -1 -6 7 , “If a p erso n liab le to an y p erso n al actio n sh a ll f rau d u len tly co n ceal th e cau se o f actio n f ro m th e k n o w led g e o f t h e p erso n en titled t h ereto , th e cau se o f actio n sh all b e d eem ed to h av e f irst accru ed a t, an d n o t b ef o r e, t h e tim e at w h i ch su ch f rau d sh all b e, o r w ith reaso n ab le d ilig en ce m ig h t h av e b e en , f irst k n o w n o r d isco v ered .” M iss. C o d e A n n . § 1 5 -1 -6 7 (R ev . 2 0 1 2 ). 1 1¶25. B r o w n h a s not alleged—let alone t ried to prove—McKee t ook a n y af f irm ati v e a c t af ter Brown cashed out in January 2006 to prevent Brown f rom disc overing his claim

. Instead, Brown m erely asserts that McKee h ad control over all the docum ents. But Brown
“cannot satisf

y the ‘af f i rm ative act’ requirem e n t w i th m ere allegations t hat the other party had com plete control o f the inf

orm ation.” Trustm ark Nat’l B a n k v . Meador , 81 So. 3d 1112, 1119 (Miss. 2012). ¶26. Citing V

an Zandt v. V

an Zandt , 227 Miss

. 5 2 8 , 8 6 S o . 2 d 4 66 (1956), the dissent suggests t hat the a f

f irm ative-act requirem ent m ay b e satisf ied by McKee’s m ere silence, because, as a f

ellow LLC m em

ber and m anager, McKee owed Brown f iduciary duties. But here we do not have the sam e f acts. The ty

pe of silence that equated to f raudulent concealm e nt in V

a n Z andt —the concealed sale of cotenants’ l and and the f a ilure to turn over the pro rata share of the p r oceeds—is not present here. Brown’s sale to McKee was by no

m eans c o n c e a l e d f

rom Brown, who was a party to the sale and accepted his agreed-upon proceeds f

or the interest transf

er. ¶27. Moreove r , t h i s C o u r t h a s h e l d t h a t “ a n act c annot b e both an act of f r aud in the inducem ent and an act of f raudulent concealm ent.” Whitaker v . Lim eco Corp. , 32 So. 3d 429, 438 (Miss. 2010) (holding that “showing f alse f inancial records could not serve to have both f raudulently i n d uced the Plaintif f s and f raudulently c o ncealed f

r om t he Plaintif

f s the underly ing f

raud claim ”). 9 And the act of om ission both Brown and the dissent assert was

9 I n Whitaker , it was the parties’ “subsequent dealing after the

. . . f raudulent inducem ent” that entitled the plaintif f s to m o ve f

orward with their f

raudulent-concealm ent claim

. Id. (em

phasis added). I n so holding, this Court distinguished Whitaker f rom the untim e ly f

raud c laim in D unn v

. Dent , 169 Miss. 5 74, 153 So. 798 (1934). “Unlike Dunn ,

1 2f

raudulent concealm e nt is McKee’s alleged a ct of f raud in the i nducem ent of Brown to sell his interest below its value. ¶28. This is t he f

atal f law with Brown’s discovery request. By his own adm ission, Brown is not seeking d i scovery to prove what happened after he transf erred his interest in January
2006. He is seeking discovery o n w h a t happened before —as proof he was f raudulently induced into the transf

er. A s the trial judge rightly noted, “discovery of this ty pe . . . is of no consequence” to the issue of whether Brown’s claim

was f raudulently

concealed. ¶29. A party asserting Rule 56(f ) as a m eans to postpone a sum m ary -judgm ent ruling “m ust present s p e c if

ic f acts why he cannot oppose the m otion and m ust specif ically dem onstrate ‘how postponem ent of a ruling o n the m otion will enable him , by discovery or o ther m eans,
to r ebut the m ovant’s showing of the absence of a genuine issue of f act.’” Prescott , 740 So. 2d at 308 (citations om itted). Brown cannot do this, b ecause his discovery requests are not aim ed at showing a genuine issue of f act on whether McKee, through subsequent dealings with Brown, f

raudulently concealed Brown’s cause of action. Whitaker , 32 S o. 3d at 438. ¶30. But even assum ing, as the dissent asserts, McKee’s m ere silence as an LLC m em ber is suf f icient to establish an af

f irm ative act o f concealm ent, Brown st i l l h a s t o s how due dilig e n c e . C

h a n nel , 954 S o. 2d at 423. And certainly discovery would not a id Brown in establishing t

h i s s e c o n d r e q

u i r e m ent of f

raudulent concealm ent. Again, Brown does not need discovery f

rom McKee to show what ef f orts he (Brown) took to discover McKee’s alleged

t he Plaintif

f s’ com plaint in today ’s case alleged subsequent dealings and communicatio n between the parties , such that a jury determ ination as to whether the Pl a i n t i f f s u s e d due diligence in discovering their f raud claim is necessary .” W hitaker , 32 So. 3d a t 437-38 (em phasis added). 1 3f

raud. See P

re s c o t t , 740 So. 2d at 308 (noting Rule 56(f ) is especially designed to protect

a party who “ claim s the necessary inf orm a t ion rests w ithin the possession of the party seeking sum m ary judgm ent”). B y his own u ncontradicted assertion, Brown did nothing f or six y ears, until a 2012 letter f rom the Secretary of State’s of f ice p rom pted him to t alk to his boss, an attorney , about what happened between 2003 and 2006. ¶31. Brown would have borne the burden a t trial to prove t ha t f r a u d u l e n t c o ncealm ent delay ed his claim f

r om accruing. S

ee Channel , 954 So. 2d at 423. So at the sum m ary judgm ent stage, Brown bore the burden to produce evidence establishing a triable claim f or f raudulent concealm ent. See Karpinsky v. Am . Nat’l Ins. Co. , 109 S o. 3d 84, 88-89 (Miss. 2013). Because n one of Brown’s disco v e r y requests would help him m eet this burden of production, the trial court did not abuse its discretion when i t denied B rown’s Rul e 5 6 (f )

m otion f or postponem e nt and dism issed Brown’s pending m otions to com pel as m oot.
III. Nor w ould discovery enable Brow n to prove equitable estoppel. ¶32. Finally , B rown argues f or equitable estoppel. But B rown’s equitable-estoppel claim does not save him

f r om sum m ary judgm ent either. ¶33. “Equitable estoppel is generally def i n ed as ‘ the principle by which a party is precluded
f rom d eny ing any m aterial f act, i nduced by his w ords or conduct upon which a person relied, whereby the person changed his position in such a way t hat i njury would be suf f ered if such denial or contrary assertion w as allowed.’” Kim ball Glassco R e s idential Ctr., Inc. v. Shanks , 64 So. 3d 941, 9 47 (Miss. 2011) (quoting S im m ons Housing, Inc. v. Shelton , 36
So. 3d 1283, 1287 (Miss. 2010)). It is “an extraordinary rem edy

. . . that should be applied

1 4with c aution.” I d. And to apply it to a statute of lim itations, “ [ i]nequitable or f raudulent conduct m

ust be established[

. ] ” I

d . (quoting Trosclair v. Miss. D e p ’t of Transp. , 757 So. 2d 178, 181 (Miss. 2000)). ¶34. A s a l r e a d y d i s c u s s e d , B r o w n h a s p o i n t e d t o n o f r a u d u l e n t c o nd u c t o r

m isrepresentation by McKee that w o u l d justif y apply ing the extraordinary rem edy of preventing McKee and Brownsville f rom asserting t he running of the statute of lim itations.
So w hy would he n e ed d iscovery f rom McKee to prove w hat M cKee said or did to induce
Brown n ot to purs u e a c a u s e of action—especially since Brown’s own uncontradicted assertion is that he had zero conversation or interaction with McKee f ollowing the January
2006 Final A greem ent? Thus, a s with Brown’s discovery -rule and f raudulent-concealm ent claim s, Brown cannot specif ically dem onstrate h ow a Rule 56(f ) postponem ent wou ld enable
him by discovery t o establish his equitable-estoppel claim

. See Prescott , 740 So. 2 d at 308.
Conclusion ¶35. Given the nature o f B rown’s allegatio n s , i t i s t e mp t i n g t o allow him to pursue his untim e ly claim s through discovery

. But “the f act that a barred claim is a just o ne or has the sanction of a m o r al o bligation does n o t e x em pt it f rom t he lim itation period.” Sm ith v. Sneed , 638 So. 2d 1252, 1263 (Miss. 1994). Mississippi’s lim itations statutes “apply with
f ull f o r ce to all claim s and courts cannot ref use to give the statute ef

f e ct m erely because it

seem s to operate h arshly in a given case.” Id. Instead, we m ust abide by the “legislative prerogative” to establish tim e boundaries.

1 5¶36. Here, def endants McKee and Brownsville S t a t i o n me t t heir burden to prove all of
Brown’s claim s f

ell outside the legislatively established tim e boundary

. And Brown f ailed

to s pecif i cally dem onstrate h o w p o s t poning the grant of sum m ary judgm ent would enable
him through discovery

to rebut this undisputed f act. Theref

ore, we af f irm the t rial judge’s grant of sum m ary judgm ent in f avor of McKee a nd Brownsville Station based o n S ection 15- 1-49(1)’s tim e bar. ¶37. AFFIRMED.
W A L L E R , C . J ., RANDOLPH, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. K ITCHENS, P.J., DISSENTS WITH S EPARATE WRITTEN OPINION JOINED BY KING AND ISHEE, JJ.

KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶38. The m ajority a f

f i r ms t h e t r i a l c o u r t ’ s j u d gm ent that Brown was not entitled to discovery on his claim s that the statute o f lim itations was tolled under the discovery rule or the doctrines o f equitable tolling and f raudulent con c e alm ent. But, because B rown alleges

t h a t h e w a s def

rauded by a p erson who had a duty to disclose m aterial i nf orm ation b u t

om itted t o do so, I w ould f ind t h a t h e h a s s t ated claim s suf f icient t o warrant d iscovery

. Theref ore, I would hold that the trial court’s grant of sum m ary judgm ent was prem ature. The case should be reversed and rem anded.
A. Facts ¶39. Brown f

i led his com

plaint on April 23, 2013. He alleged that McKee was an attorney who had provided legal services to him i n various m atters f o r m o re than a decade. He alleged that McKee had approached Brown, who was a general contractor, and p resented to him a

1 6proposal that t h ey jointly acquire r eal e state and develop and operate a n apartm ent com plex.
Af ter Brown had agreed, McKee prepared the certif icate o f f orm a tion f

o r B rownE, LLC, in which Brown and McKee each owned a f i f ty p ercent econom ic and governing interest. Brown alleged that McKee was a m anager of BrownE, LLC. ¶40. Ac c o r d i n g t o t h e c o mp l a i n t , a f t e r construction o f the apartm ent com plex was underwa y , t

h e C i ty of Starkville enacted an ordinance that prohibited the developm ent of new apartm ents and consequently prevented f urther growth of

the business. Brown alleged that this change in t h e law m eant that his skills no longer were required, prom pting McKee to seek to d ivest Brown of his interest in BrownE, LLC. He alleged that, to this end, McKee convinced Brown that a second, successor, lim i ted l iability com p any w as n ecessary , leading

to the f orm ation of Brownsville Station, LLC, in 2000. Brown a lleged that McKee was the

m anager of

Brownsville Station, LLC. ¶41. The c rux of Brown’s claim s was his allegation t hat, af ter the f orm ation of Brownsville Station, LLC, McKee persuaded him to enter into a s eries of option contracts, d etailed in the

m ajority o pinion, w hereby McKee purchased Brown’s e n t i r e interest f or $150,000, an

am ount f ar less tha n h a l f t h e appraised v alue of the LLC. B rown contended that McKee f rau d u l e n t l y had c oncealed t he true value f r om him

. Brown alleged that he f irst had discovered h is business p artner’s deception in 2012 when Brownsville S tation, L LC, f iled with the Secretary of State articles of reinstatem ent t hat nam e d Brown as the m anager and registered agent f

or the com

pany . At that p oint, Brown sought t he a dvice of an a ttorney , who advised that he obtain legal representation.

1 7¶42. M c K e e mo v e d t o dism iss Brown’s com plaint on the ground that i t had been f i l e d outside the three-y ear statute o f lim itations. 10 McKee also asserted that Brown had signed a “Convey ance, Full a nd F inal Release and Hold Harm less Agreem ent” by which he voluntarily h ad relinquished any causes of action against M cKee c o ncerning the convey ance of his shares, a nd that Brown h a d e n t e r e d into this agreem ent a f ter consultation with independent counsel of

his own choosing, Dolton McAlpin. ¶43. Following the m otion to d i sm iss, Brown v igorously sought discovery , which McKee vigorously r esisted. McKee sought protective orders, asserting t hat, because the action was untim e ly , he f

aced an undue burden in responding to Brown’s d iscovery requests. On April 14, 2014, McKee f

iled a m otion f

or summa r y j u d g m ent in which h e pled the s tatute of
lim itations. Brown f

iled a response, a r g uing that genuine issues of m aterial f act existed concerning the s tatute o f lim itations d ue to the discovery rule, as wel l a s t he d octrines of equitable e stoppel and f

raudulent concealm ent. He f urther alleged t hat, due to the f iduciary relationship, he could n ot have discovered McKee’s m i sconduct until he ha d h appened to consult an attorney in 2012. He asked that, because of the lack of discovery , the trial court

enter a Rule 56(f

) order continuing the sum m ary judgm ent issue a n d also requiring that the def endants cooperate in discovery

. ¶44. Brown subm itted his deposition and l ater, a supplem enta l a f f i d a v i t a v e r r i n g that
McKee had denied him access to docum ents in McKee’s sole p ossession that were related

to the value of Brownsville Station , LLC, including ref i nancing of the $2.25 m illion

10 S ee M iss. C o d e A n n . § 1 5 -1 -4 9 (1 ) (R ev . 2 0 1 2 )

. 1 8m ortgage signed solely by McKee, em ails, letters, appraisals, loan docum ents, and closing

statem ents. Brown c laim ed that he had not known of t he existence of an a p praisal showing the true value of the com

pany p roperty until shortly bef o re he f iled his l awsuit. He c ontended that M cKee was the o nly person in possession of t he docum e nts a n d he had been unable to obtain t hem f

rom the l ender, which no longer was in business. Brown a lso subm itted the f ull deposition of the attorney , Dolton McAlpin. McAlpin did not recall having spoken to Brown without McKee’s b eing present. H e testif ied that he rev i ewed t he t erm s of the agreem ent with Brown f

or about thirty or f

orty m inutes, but g a v e B r o wn no advice about the am ount he was receiving f

o r his interest or whether it was a “good deal” f or him

. ¶45. B e f

o r e a n y r u lings on the pending m otions, all the judges of the Sixteenth Circui t Court District recused them selves, a n d o n J u ne 2 8, 2016, t his Court appointed a special judge. The special judge set all pending m o tions f o r hearing on July 8, 2016. However, the special judge never r

uled on McKee’s m otion to dism iss. I nstead, h e denied Brown’s m otions

to com pel discovery and f

or a continuance, granted McKee’s m otions f or a protective order, and granted sum m a ry judgm ent to McKee o n the ground that there w as no g enuine issue of

m aterial f act that the statute of

lim itations barred Brown’s claim s. B

. T h e trial court abused its discretion by denying B rown’s motion for a continuance for a dditional disc o v e ry and granting summary judgment to McKee. ¶46. The record in this case ref lects an alm ost c o m

plete lack of discovery prior to the grant of sum m ary judgm ent. According to the Mississippi R ules of Civil Procedure, “ [ p ]arties m ay obtain discovery regarding any m atter, n ot privileged, which is relevant to the issues raised

1 9by the claim s or def enses of any party .” M.R.C.P. 26(b)(1). “It is not a ground f or objection that t he inf

orm ation s ought will be inadm issible at the trial if t he inf orm ation sought appears reasonably c alculated to l ead to t he discovery of adm issible evidence.” Id. However, the trial

court m a y grant a p rotective order lim iting discovery if “justice requires to protect a party or
person f rom annoy ance, em

barrassm ent, oppression, or undue b urden or expense.” M.R.C.P. 26(d). Im portantly , “[ e]rroneous denial of discovery is ordinarily prejudicial in the absence of circum s tances showing it is harm less.” Daw k i n s v . R edd P est Control Co. , 607 So. 2d
1 2 3 2 , 1236 (Miss. 1992) (quoting Weahkee v. Norton , 621 F.2d 1 080, 1083 (10th Cir

. 1980)). ¶47. This Court h as discussed the criteria f or granting a continuance to perm it additional discovery in def

ense o f a m otion f

or s um m ary j udgm ent under Rule 56(f ), which provides: Should it a

ppear f r o m the af

f idavits o f a party opposing the mo t i o n t hat he cann ot f or reasons stated present by af f idavit f acts essential to justif

y his opposition, the court m ay ref use the application f

or judgm ent or m ay

order a continuance to p erm it af

f idav i t s t o be obtained or depositions to be taken or discovery to be had or m ay

m ake such order as is just.
M.R.C.P. 56(f

). A party requesting a c ontinuance u nder Rule 56(f ) to ob t a i n a d d i tional discovery “m

ust present specif

ic f acts w h y h e cannot oppose t he m otion and m ust specif ically dem onstrate ‘how postponem ent of a ruling on the m otion will enable him , by discovery or o ther m eans, to rebut the m ovant’s showing of the absence of

a genuine issue of f act.’” Stanley v

. S c o t t P etroleum Corp. , 184 So. 3d 9 40, 9 42 (Miss. 2016) (quoting
Prescott v. Leaf River Forest P rods., Inc. , 740 So. 2d 301, 308 (Miss. 1999)). The party requesting a continuance also m u s t show the steps taken to obtain the n ecessary i nf orm ation.

2 0Stanley , 184 So. 3d at 942. The Court h as h eld that, in presenting these requisite f acts, the party requesting a continuance need not subm it w r itten r equests or af f idavits to o btain relief under Rule 56(f

). Id. ¶48. Rule 56(f

) “protects against im

provident or prem ature grants of sum m ary j udgm ent and is to be applied liberally .” Id. The trial court s hould grant the m otion f or a continuance
if t he party h as m a de the requisite showing, has been diligent, a nd has acted in good f aith.
Id. Of p articular relevance to this case, t his C ourt specif ically has disapprove d o f “ the practice of parties[ ’] resisting d iscovery on the o ne hand and m oving f o r sum m ary j udgm ent on the other.” Sm ith v. H.C. Bailey Com panies , 477 So. 2d 224, 234 (Miss. 1985). ¶49. In his Rule 56(f

) m otion, Brown reques t e d discovery of loan d ocum ents, bank account

statem ents, and f

inancial s t atem e nts f

or B rownsvil l e S t a t i o n , L L C

. A d d i t i o n a l l y , h e r e q u e s t ed appraisals of prope r t y o w n e d by BrownE, L LC, and B rownsville Station, L LC, and the operating agreem ents of t he t wo com panies. H e argued that these docum ents would show the value of t he property and the roles and r esponsibilities t hat McKee and B r o w n had with respect to the operation o f the com panies. He also requested the o pport u n i t y t o depose McKee, which deposition, he argued, would address m atters including whether McKee had withheld the f

inancial docum ents f

rom Brown. Brown argued that t his inf orm ation was relevant to the statute of

lim i tations issue. ¶50. The rec o r d r e f

l e c t s t h a t , not only did Brown specif y in his R ule 5 6(f ) m otion what discovery could s how, he w a s d i l i g ent in p ursuing t he requested discovery by tim ely
p r o p o u n d ing discovery requests, f iling m otions to com

pel, and requesting hearings on th e

2 1m otions. The trial court erred by f inding that discovery would not have aided Brown. The trial court had no basis f

or its f inding that Brown possessed t he docum ents he requested and which Brown a lleged were not in his possession. Bec a u s e this was a f act f inding on a genuinely disputed is s u e , i t was inappropriate on sum m ary judgm ent. The essence of
Brown’s claim s was t hat McKee, a f iduciary , had concealed the docum ents f rom him and his requests f

o r d i s c o v ery of the docum ents and the deposition of McKee reasonably were calculated to lead to the discovery of evidence r elevant to t he discovery rule, f raudulent concealm e nt, and equitable estoppel, notwithstanding the trial court’s conclusion that such
inf orm ation pertained only

to dam ages. ¶51. Ordinarily , if a p arty ’s claim s survive a m otion to dism iss, d iscovery proceeds bef ore that party f

aces a m otion f

or sum m ary judgm ent. This case is in a unique procedural posture because the trial c ourt never ruled on McKee’s m otion t o dism iss. I ns t e a d , t h e trial court proceeded to rule on the m o tion f or sum m ary judgm ent, concluding that, b ecause Brown could not prove that any tolling provision applied to t he statute of lim itations, no discovery

was necessary . I would f

i nd that, b ecause Brown stated claim s that the statute of lim itations

was tolled, he was entitled to d iscovery so he c ould a ttem pt to m eet his b urden to prove that genuine issues o f m aterial f act existed on s u c h c l a i m s. I turn now to a review of the requirem ents f

or t he discovery rule, equitable estoppel, and f raudulent concealm ent, then to a discussion of

their application to this case. ¶52. Under t he discovery rule, “[ i]n a c t i o n s f o r w hich no other period of lim itation is prescribed and which involve late n t i njury or disease, the cause of action does not accrue

2 2until the plaintif f has discovered, or by r easonable diligence should have discovered, the injury .” Miss. Code Ann. § 15-1-49(2) (Rev. 2012). The Court has said that: [ T]he statute of lim itations com m ences u p o n discovery of an injury , and discovery is an issue of f act to be decided by a jury when there is a genuine dispute. Theref

ore, the critical qu e s t ion with which we are conf ronted is whether, in a sum m ary judgm ent context, we can identif y as a m a t ter of

law, the point at which [ the plaintif f ] knew or should have known or should have m ade an inquiry , based on the inf orm ation available to him

. Weathers v. Metro. Life Ins. Co. , 14 So. 3d 688, 692 (Miss. 2009). ¶53. For equitable e stoppel to t oll the statute of l im itations, “the plaintif f m ust show by a preponderance of evidence that ‘(1) it was induced b y the c onduct of [ the def e ndant] not to f ile its com

plaint sooner, (2) resulting in its claim [ ’s] b e i n g b a r r e d by the [ applicable]
lim itations, and (3) [ the def endant] k n ew or had reason to know that such c onsequences would f o llow.’” Townes v

. R u s t y E llis Builder, Inc. , 98 So. 3d 1046, 1055 ( Miss. 2012) (quoting Harrison Enters., Inc. d/b/a Paulding Cable Co. v. Trilogy Com m c’ns, Inc. , 818
So. 2d 1088, 1095 (Miss. 2002)). “Inequitable or f r audulent conduct m

ust be established to apply the doctrine of equitable estoppel to a statute of lim itations.” Ray v. Keith , 859 So. 2d 995, 997 (Miss. 2003). The issue of equitable estoppel “becom es a question f or the trier of
f act when there is e vidence to support a f inding that the plaintif

f r easonably relied on the actions of the def endant to his detrim ent.” T ownes , 98 So. 3d at 1055. ¶54. Regarding the doctrine of f r audulent concealm e n t, Mississippi C ode Section 15-1-67 provides the f

ollowing:
If a person liable to any personal a ction shall f r audulently conceal the cause of action f rom the knowledge of the person entitled thereto, the cause of action shall be deem ed to have f

i rst accrued at, and n ot bef o re, the tim e at which such

2 3f

raud s h a l l be, or with reasonable diligence m i ght have been, f irst known or discovered. Miss. Code Ann. § 15-1-67 (Rev. 2012). The general rule is that the doctrine of f raudulent concealm e nt will toll the statute of lim itations of any cause of a c tion if the plaintif f shows “that (1) som e af

f irm ative a ct o r conduct was done and prevented discovery of a claim , and (2) due diligence was perf orm ed on [ h i s ] p a rt to discover it.” Stephens v. Equitable Life
Assurance S oc’y of the U.S. , 850 So. 2d 7 8, 84 ( Miss. 2003). Both elem e n ts present f act questions f

or determ ination by a jury

. Whitaker v. Lim eco Corp. , 32 So. 3d 429, 436 (Miss. 2010). But “[ w]her e a f

iduciary relationship e xists, silence m ay b e f raud.” Grand Legacy,
LLP v. Gant , 66 So. 3d 137, 145 (Miss. 2011). “The ‘silence m ust relate to a m aterial f

act

or m atter k

nown to the party and as to which i t is h is l egal duty t o com m unicate t o the other contracting party

. ’” Id. ¶55. Contrary to the m ajority ’s decision, p roof of an af f irm ative act of concealm ent is not required when the def

endant had f

iduciary duties toward the plaintif f requiring disclosure of

m aterial inf

orm ation. In V

an Zandt v. V

an Zandt , 227 M iss. 528, 534, 86 So. 2d 466, 468 (1956), s everal c otenants owned a large parcel o f real property in Sim pson County

. Several of the cotenants sued another of the c otenants, Dr. H om er Van Zandt, alleging that Dr. Van Zandt had used his power of attorney to sell tim ber f rom the land, had f

ailed to disclose the transaction t o his f

ellow cotenants, and had c onverted all f unds received f

rom the sale to his

own use. I

d. Dr. Van Zandt a sserted that the action was barred b y the statute of lim itations.
Id. at 535, 86 So. 2 d at 4 68. The chancellor f ound that f

r audulent concealm ent had tolled the

statute of l im itations a nd entered a judgm ent f or the cotenants in t he a m ount of their pro rata

2 4share o f the sale proceeds with interest. Id. Dr. Van Z a ndt appealed, arguing t hat the statute

of lim itations had barred the action. Id. at 536, 86 So. 2d at 469. ¶56. This Court rejected Dr. Van Zandt’s a rgum ent. Id. a t 539, 86 S o. 2d at 470. This Court held that Dr. Van Z andt was in a f iduciary relationship with h is f ellow cotenants, but he had
f ailed to disclose the sale o r m ake an accounti ng to them

. Id. a t 538, 86 So. 2 d a t 470. W e held that this conduct am ounted to “a conce a led f r aud” and said that “[ w]e r ecognize the general rule that in the absence of a f i duciary relationship som e a f f i rm ative act of concealm e nt is necessary to establish a concealed f raud, bu t t h is is not t he case bef ore us” because t he cotenants w ere in a f iduciary relationship. Id. at 538-39, 86 So. 2d a t 470. This
Court adjudicated that, under t he p revailing r ule, a person in a f

i duciary relationship is under

a d uty to reveal the f

acts to the o t her party , and his “silence w hen he ought to speak” am ounts to a f r audulent concealm ent. I

d. at 539, 86 So. 2d at 470. The Court explained that:
It is t he prevailing rule that, as between persons sustaining a f iduciary or trust or other conf

idential r elationship toward each other, the person occupy ing the relation of f

iduciary o r of conf

idence is u nder a duty to reveal the f a cts to the plaintif f (the other party ), and that his silence when he ought to speak, or his f ailure to disclose w hat he ought to disclose, is as m uch a f r aud at law as an actual af f irm ative f alse representation or act; and that m ere silence o n his part as to a cause o f action, the f acts giving rise to w hich it was his duty to disclose, am ounts to a f

r audulent concealm ent within the rule under consideration.
Id. at 539, 86 So. 2d at 470 (citing L.S. Teller, Annotation, W h at C onstitutes C

oncealment
W hich W i ll Prevent Running of Statute of Limitations , 173 A.L.R

. 5 7 6 , 588 (1948)). V an Zandt also cited B u c k

n er v. Calcote , 28 M iss. 4 32 (1855), the case which initially established t his principle in Mississippi law. Id. a t 539, 86 So. 2d at 4 70. Citing Section 742 of the Mississippi C ode of 1942, an earlier iteration of Section 1 5-1-67, the Court held that

2 5“it f

ollows f rom w hat has been said that the action of the [ cotentants] is not b a r r e d b y a n y statute of lim itation or laches

. . . .” Id. at 539, 86 So. 2d at 470. More recently , it has been

r e c o g n i zed t hat in Mississippi “an om ission m ay be c onsidered an af f irm ative act in c a s e s where there exists a n af

f irm ative duty of disclosure.” Hare v. City Fin. C o. , 2 69 F

. Supp. 2d 766, 770 (S.D. Miss. 2003). ¶57. Brown’s prim a ry claim i s that, during a tim e when he and McKee w ere f iduciaries, each to the other, McKee concealed an appraisal of c o m pany -owned property and then bought o ut B rown’s interest f o r f ar less than the property ’ s appraised value, in violation of
h i s f iduciary duties to B rown. W hile both p arties m ake m uch of whether M c K e e w a s Brown’s attorney during the subject transactions, it is clear t hat Brown has stated a claim that McKee, apart f

rom McKee’s status as a lawy er, had f iduciary duties toward him as a f unction of McKee’s r o le as a m anaging m em ber o f the LLCs. In the com p laint, B r o wn alleged specif ically that McKee had f

i duciary duties toward him as m anager of BrownE, LLC, and Brownsville Station, LLC, and that his acts and om issions had breached the duties of care, loy alty , a n d f

air dealing a nd v iolated the rela t i o n s hip of trust and conf idence. Indeed, “[ d]irectors and of

f icers in a closely held corporation st[ and] in a f i duciary relationship with the corporation and its m em bers.” Brothers v. Winstead , 1 29 So. 3d 906, 924 (Miss. 2014) (citing Fought v. Morris , 543 So. 2d 167, 171 (Miss. 1989)). This rationale applies to lim ited liability com panies “with equal f

orce.” Id. ¶58. Regarding the discovery rule, McKee argued and the trial court f ound that, because
Brown had a ccess to all relevant docum e nts and f inancial records, he cannot show t he injury

2 6w a s l atent. The m a jority r elies on this reasoning. However, not only does Brown dispu t e McKee’s c ontention that he had access to the r elevant docum ents during the transactions at issue, he alleges that McKee, in v iolation of his duty of disclosure, concealed these docum ents f

rom him and actively m isled him about the value of his interest. B rown was entitled t o discovery to attem pt t o uncover f

a c ts w ith which to r ebut McKee’s allegation that the discovery

rule does not apply . Further, Brown was entitled to discovery on the issue of

e q u i t able estoppel to attem pt to show that McKee’s conduct induced him not to f ile his

com plaint sooner and t hat McKee kne w o r had reason to know t hat legal action by Brown eventually

could be f

ound to be tim e barred due to such inducem ent. ¶59. Concerning f

raudulent concealm ent, discovery c o uld l e a d t o e v idence that McKee, through his silence or otherwise, co n c e aled relevant docum e n ts f rom Brown despite Brown’s exercise of the am ount of diligence that was due, considering the f iduc i ary relationship. If

so, Bro w n c o u l d u se that e vidence to show that the statute of lim itations was tolled due to f raudulent concealm e n t

. “ W hether a plaintif f acted diligently in discovering f raud is generally a jury question.” T o w n e s , 98 So. 3d at 1056. V an Z andt clearly h eld that a f iduciary ’s silence when he ought to speak can constitute f raudulent c oncealm ent that tolls the statute of lim itations. The m ajority disputes V an Zandt ’s application to this c ase because it f inds that, unlike the sale of t im b er in V an Zandt , in w hich b oth the s a le a nd the proceeds
f rom the sale were concealed f rom the c otenants, “Brown’s s ale to M cKee was by no m eans concealed f

rom Brown, who was a party to the sale and accepted his agreed-upon proceeds
f or the interest transf

er.” Maj. Op. at ¶ 26. But B rown’s claim i s not that McKee concealed

2 7the sale f

rom him

. Rather, it is B rown’s po s i t i on t hat, w hen McKee purchased Brown’s interest, McKee concealed f rom Brown m aterial f

acts pertinent to the sale, particularly , the value of com

p any property , in v iolation of his f iduciary duty to disclose such m aterial f acts
to his f ellow L LC m em

ber, Brown, bef

ore buy ing him out f

or f ar less than t he true value of
Brown’s interest. There is no logical o r legitim ate reason to d istinguish the f raudulent

om issions in V

a n Zandt f r om the f raudulent om issions alleged in this case. ¶60. The m ajority relies on W h itaker v. L im eco , 32 So. 3d 429, 438 (Miss. 2010), to f ind that Brown has not stated a claim suf f icient to toll the statute of l i mi tations. Whitaker involved f

raud claim s, f

iled outside the statute of lim itations, based upon m isrepresentation of the value of corporate assets by the corpora t i o n ’ s ma n aging director. Id. at 431-32.
Whitaker recognized that “[ t ]he proper test” of f raudulent concealm ent “is whether a reasonable person sim i larly s i t uated would have d iscovered potential claim s.” Id. at 436. Critically , because no f

iduciary r elationship was im plicated in Whitaker , the plaintif f s were required to prove an af

f irm ative act o f concealm ent. Id. at 4 36. In the Court’s discussion of what is required to show an a f f i r ma t i ve act of concealm ent, we rightly s aid that “an act
cannot be both an act of f raud in the inducem ent and an act of f raudulent concealm ent.” Id.

at 438. The Court f

ound that the plaintif

f s’ claim s survived because they had alleged subsequent dealings and com m unication between t h e p a rties that a m ounted to f raudulent concealm e nt of

the earlier acts of

f raudulent inducem ent. Id. at 437. ¶61. W h ile Whitaker is applicable to cases in w hich an af f irm ative act of concealm ent is required, it i s inapposite to thi s c a s e , i n which Brown h as articulated a claim that McKee

2 8f

ailed to disclose m aterial f a c t s t h a t he was under a f iduciary duty to disclose. Under V an Zandt , a f

iduciary ’s silence when he ought to s peak can am ount to f raudulent concealm ent that t olls the statute of lim itations. V an Zandt , 227 Miss. a t 5 39, 86 So. 2d at 470. Theref ore, Brown w a s entitled to discovery on the issue of whether a reasonable person in Brown’s situation, entitled to r ely , as he was, on McKee’s f u lf illm ent o f his duty t o disclose m aterial
f acts, would have discovered his claim s in the exercise of due diligence. C. Conclusion ¶62. I would agree w ith the m ajority ’s disposition of t his c a s e i f B r o w n ’ s c l aim s had involved arm ’ s-length transactions. But because McKee owed B rown a f iduciar y d u ty of disclosure, Brown’s a llegation that the s t a t u te of lim itations was tolled because McKee withheld m aterial f

acts d e m ands that Brown be a llowed the opportunity to discover evidence

to prove his tolling a rgum ents. Certainly , Brown’s statute of lim itations a rg u m e n ts u ltim ately

m ay pro v e t o be w ithout m erit, and sum m ary judgm e nt t hus m ay becom e appropriate. But discovery m

ust take place b ef

ore such a d e t e r mi n a t ion can be m ade. Due t o the lack of discovery on the i ssue of t he running of t he statute o f lim i tations, the trial court’s grant of

sum m ary judgm ent was prem ature. I would r e v e r s e the grant of sum m ary judgm ent and

rem and f or f urther proceedings. KING AND ISHEE, JJ., JOIN THIS OPINION.

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