### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60589

KELLY BAKER, Guardian for Aaron Wayne Page, Plaintiff - Appellee
v. RR BRINK LOCKING SYSTEMS, INCORPORATED, Defendant - Appellant

Appeal from the United States District Court f or the Southern District of Mississippi

Before JOLLY, GARZA, and OWEN, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Aaron Wayne Page (“Page”) was allegedly raped while i n jail when he was nineteen years old. He sued RR Brink L ocking Systems, Inc. (“Brink”), among others, claiming the rape occurred a s a result of ineffective locks on cell doors. In this interlocutory appeal, Brink a rgues that the district co u rt e rred in rejecting its contention that the statute of li m i t a t ions began running against Page at the m oment the alleged torts occurred because, even though at nineteen years old he was under the a ge of majority, he was e mancipated at this time by operation of law based u p on his felony record. The district court h eld that Page continued to suffer from the disability of minority at the time of the torts, despite U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 9, 2013 Ly l e W . Cay ce Clerk Case: 12-60589 Document: 00512301296 Page: 1 Date Filed: 07/09/2013No. 12-60589

being emancipated, and, thus, that he timely commenced this action by filing less than three years after his twenty-first birthday. We AFFIRM. I. On August 2, 2007, Page was a nineteen-year-old pre-trial detainee at the Harrison County Adult D etention C enter. P a g e alleges t hat in t he early morning hours, a nother inmate was able to leave his own cell and e nter Page’s, where he assaulted and raped Page. Page further contends these e vents were made possible, in part, by faulty locks Brink manufactured. Page initially filed suit in February 2009. In F ebruary 2011, h e amended his complaint adding Brink as a party and claims of negligence, strict l iability, and breach of implied warranty against it. B rink moved for summary judgment, contending Mississippi’s three-year statute of limitations period, a pplicable to personal injury a nd products liability, applied. Brink argued Page was an emancipated minor w hen the alleged events occurred, because h e was arrested and charged as an adult more than sixteen times before turning 21. SeeM I S S

. C O D E
. AN N
. § 9 3-11-65(8)(a). As such, the statute of limitations began to run at the time the alleged events o ccurred. P age countered that he continued t o suffer f r o m t he disability of infancy until he turned 21, and thus that his Febru a r y 2011 amendment was timely. SeeM I S S

. C O D E AN N . § 15-1-59. The district court found Brink’s argu m e nts unpersuasive. It examined Mississippi’s st a tute and case law, and determined that e mancipation is a concept separate and distinct from the di sability o f infancy. Accordingly, it denied Brink’s motion for summary judgment

. B r i n k t imely filed an interlocutory appeal. I I. We have appellate jurisdiction to decide this i n t e rlocutory appeal under 28 U.S.C. § 1292(b). “Questions of statutory i nterp r e t a t i on a re, of course, reviewed de novo .” Carder v. Cont’l Airlines, Inc. , 6 36 F.3d 172, 174 (5th Cir.

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2011). Where, as h e r e , a federal court exercises j urisdiction over state law

causes of action b ased upon diversity o f c i t i z e n ship, see 28 U.S.C. § 1 332, we apply state substantive law as stated in the final decisions of the state’s highest court. Shanks v . AlliedSignal, Inc. , 1 69 F.3d 988, 993 (5th Cir. 1999). “When there is no ruling by the state’s highest court, it is the duty o f the federal court to de t e r m i n e as best it can, what t he highest court of t he state would decide.” Lampton v. Diaz , 661 F.3d 897, 899 (5th Cir. 2011) (interna l q u o tation marks omitted). The q uestion presented in this appeal is wh ether an emancipated minor—who is emancipated only b ased upon his record of felonies—is entitled to the p rotection of t he Mississippi savings statute, under which the disability of infancy is not removed until a person reaches age twenty-one. 1 M I S S

. C O D E
. AN N
. § 15-1-59. The Supreme Co u r t o f M ississippi has n ot a nswered this question, but a fter thoroughly analyzing d e cisions in similar Mississippi cases, as well as the Mississippi Code, we conclude that the answer is yes. A. We begin by e xam i n i n g the relevant provisions o f the Mississippi Code,

w h i ch provide the framework for evaluating this case. There are several code provisions that are applicable in reaching the answer to today’s question. First,

we consider Chapter 1 , Title 15 of the M ississippi Code, establishing the savings statute, which provides: If any person entitled to bring any of the p ersonal actions mentioned shall, at the time at which the cause of action accrued, be u nder t h e d isability of infancy or unsoundness of mind, he may bring the

1 As d is cus s ed below , the M is s is s ip p i Cod e allow s f or a court to rem ove the d is ability of inf ancy p rior to an ind ivid ual reaching age tw enty- one in certain circum s tances

. See M I SS

. C O DE AN N

. § 93- 19- 1 et s e q . I n t h i s ap p eal, how ever, there is no argum ent that a chancery court ever is s ued a d ecree of rem oval of m inority as to Page.

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actions within t he times in this chapter respectively limited, after his disability shall be removed as provided by law. 2 M I S S

. C O D E A N N
. § 1 5

- 1 -59. An “infant” for purposes of the savings statute is any person under twenty-one years of age. M I S S

. C O D E AN N . § 1-3-21. Title 9 3, meanwhile, deals with domestic relati o n s, a s eemingly distant subject from our domain today. Section 93-11-65(8)(a) is entitled “Enforcement of Support of D ependents,” and establishes the situations under which a child may become e mancipated, thus relieving obligations of p arental sup p o r t

. It states in relevant part: 3 The duty of support of a child terminates upon the emancipation of the c hild. Unless otherwise provided for in the u nd e rlying child support judgment, emancipation shall occur when the child: (i) Attains the age of twenty-one (21) years, or (ii) Marries, or (iii) Joins the military and serves on a full-time basis, or (iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony. M I S S

. C O D E AN N . § 93-11-65(8)(a) (Supp. 2010). Next, we look at Chapter 19 of Title 93, entitled “Removal of Disability of Minority,” which details circumstances whereby the chancery court m ay remove the disability of minority as t o real estate rights and transactions for an individual u nder twenty-one. The statute f u r t h e r provides how such an individual may apply for removal of disability, that the disability of minority does n o t apply to married minors for purposes of actions i nvolving marital

2 This p rovis ion only ap p lies to s tatutes of lim itations within Chap ter 1, Title 15 of the M is s is s ip p i Cod e. Pol l a rd v . Sherw i n- Wi l l i a m s Co. , 955 So. 2 d 764, 770 n. 6 (Mis s . 2007)

. Page’s claim s of p rod ucts liability and p ers onal injury are w ithin reach of the savings s tatute becaus e they are encom p as s ed by § 15- 1- 49’s three- year s tatute of lim itations

. Li ncol n El ec. Co. v . McLem ore , 54 So. 3d 833, 835- 36 (Mis s. 2010)

.

3 The s tatute als o p rovid es other s ituations in w hich a court m ay d eterm ine em ancip ation has occurred , includ ing when a child d is continues f ull- tim e enrollm ent in s chool and is at leas t eighteen years old

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rights, and that persons eighteen years of age or older are competent to contract in matters affectin g p e r s o n a l property. 4 M I S S

. C O D E AN N
. § 93-19-1 et seq. Importantly , § 93-19-9 describes the terms of a chancery court’s decree of removal of minority: The decree may be for partial removal of t he disability of the m inor so as t o e nable him to d o some p a rticular act proposed to b e done and specified i n the decree; or it may b e g eneral, and empower h im to do all acts in reference to his p roperty, and m aking c ontracts, and suing and b eing sued, and engaging in any profession or avocation, which he could do i f h e were twenty-one years of age; and the decree made s h a l l distinctly specify t o what extent the disability o f t h e minor is removed, and what c h a r a cter of a cts h e is empowered to perform, n o t w ithstanding his minority, and m ay impose such restrictions and qualifications as the court may adjudge proper. M I S S

. C O D E AN N . § 93-19-09. The plain language o f the Code distinguishes between the two terms “disability of i nfancy” a n d “ e mancipation,” as evidenced by the separate treatme n t a f

f o r d ed to e ach under the provisions above. Each e ntails its own consequences; and the Code provides for different means by which the disability may be removed and emancipation may be effected. B. In this appeal, however, Brink contends t hat P a ge’s a lleged emancipation 5 had c onsequences outside those ascribe d to emancipation in the Code. Essentially, i t argues t hat when Page w as emancipated, t h e effect was to remove his disability of infancy. The Code itself provides no support for this a rgument. Thus, Brink relies upon M ississippi case law, which it argues establishes a rule that a child who is emancipated ceases to suffer the disability o f i n fancy because

4 This chap ter als o notes that p ers ons eighteen y ears of age o r o l d e r m ay p articip ate in p hys iological training.

5 Brink alleges Page w as em ancip ated , but the court below d id not rend er a f ind ing on this is s ue; ins tead , it held that em ancip ation d oes not rem ove the d is ability of inf ancy. 5 Case: 12-60589 Document: 00512301296 Page: 5 Date Filed: 07/09/2013No. 12-60589

of his emancipation. This arg u m e n t cannot prevail because it rests on a predicate that mischaracterizes Mississippi law. Brink looks p rimarily to Ladner v. Logan , 857 So. 2d 764 (Miss. 2003), for sustenance. That case, however, is no l ifeline for B rink. Brink contends the Mississippi Supreme C ourt “affirmed the trial court’s c on clusion that the children’s ‘disabilities of infancy’ had been removed prior to them turning 21 years old and that, as such, only the youngest son had a viable claim.” SeeBr. of Appellant at 9-10. But the trial court made no such finding, and neither did the Mississippi Supreme Court. In Ladner , Cheryl Ladner sought pa y m ent of unpaid child support f

or her f o u r c h i l dr en from her ex-husband, W oodrow Logan. 857 So. 2d at 7 65. The trial court c hancellor noted both the dates at which each child was emancipated 6 a nd the date at which each reached the age of majority, i.e., twenty-one. Ladner v. Logan , No. 19,882-D, at * 3 (Ch. Ct. Pearl River Cnty. Miss. Mar. 27, 2002). It then held the child support c l a ims of t he three older children were time-barred, as more than seven years had elapsed f rom the time each r eached t he age of m ajority to the t ime they were joined as p r oper parties in Ladner’s suit. Id. at *5-6. On appeal, the Mississipp i Supreme Court addressed, inter alia , “[w]hether the chancellor e rred in his application of the s tatute of limitations as i t a p p lied to t he adult children.” 857 So. 2d at 771. L adner’s argume n t o n appeal was that “since the youngest child of f our children became emancipated at the t ime of high school graduation, M ay of 1 995, the statute cannot commence to run against a ny Plaintiff or any of the c hildren until May of 2002.” Id. at 772. Thus, the issue before the court was not whether the statute began to run either
upon a c h ild’s emancipation o r upon his reaching the a g e of m ajority; instead,

6 The trial court d oes not clearly s tate the caus e of each child ’s em ancip ation, but the d ates ap p ear to coincid e w i t h e a ch child ’s high school grad uation or his ceas ing f ull- tim e enrollm ent in s chool af ter turning eighteen. 6 Case: 12-60589 Document: 00512301296 Page: 6 Date Filed: 07/09/2013No. 12-60589

the question was whether the statute r e mained tolled a s to all the children until the y oungest c hild was emancipated. 7 Id. The court foun d n o s u pport for the proposition that the statute of limitations began to run against all the children only after t he youngest child became emancipated, and held that the trial court correctly found the statute of limitations had r u n u p o n the claims of the three oldest children. I

d. In reaching this conclusion, the c ourt relied u p on Brown v. B rown , 822 So. 2d 1119 (Miss. Ct. Ap p. 2002), in which Mrs. Brown sought payment of child support f

or her two then-adult children from h er ex-husband, Mr. Brown. Id. at 1120. The Brown court first noted § 15-1-59 tolls the statute of limitations until the disability of infancy is removed. Id. at 1121. It then found that more than

seven years had elapsed s ince the Browns’ son reached age twenty-one, and thus that his claim w as barred. Id. It found the daughter’s c l a i m w a s s t ill viable, how e v e r , a s she had not yet turned twenty-eight. Id. Accordingly, the court looked to whether each child had r e a c h e d the age of majority to determine whether the statute of limitations had run, not whether either had been emancipated more than s even years prior. 8 In neither Ladner nor Brown , then, did the court find emancipation was tantamount to removal of the disability of infancy for purposes of applying the statute of limitations. Next, Brink looks to the decision of the Mississ i p p i C o u r t of Appeals in White v. Abel , 802 S o. 2d 98 (Miss. Ct. App. 2 001), a n d a g a i n fails to make a persuasive connection in support of its argument. In that case, the question was

7 It is notew orthy that Lad ner elected to a r g u e that the s tatute w as tolled until her yo u n g e s t child w as em ancip ated

—not when he reached the age of m ajority, a later d ate— d es pite that the chancellor clearly held the s tatute was tolled until this child reached
m ajority.

8 The court d oes not m ention em ancip ation, a n d i t a p p e ars neither p arty contend ed either child w as em ancip ated prior to reaching the age of majority. N evertheles s , this cas e is not help f

ul to Brink ’s argum ent, as it d oes not equate em ancip ation w ith the rem oval of the d is ability of

inf ancy, as Brink s eek s to d o in this ap p eal. 7 Case: 12-60589 Document: 00512301296 Page: 7 Date Filed: 07/09/2013No. 12-60589

“[w]hether the lower court e rred b y a d m itting into evidence the a ffidavit of minor, Tonya A

ble, which the [trial] court relied upon in holding the minor was emancipated at age seventeen and t he statute of l i mitations had r un on this action.” Id. at 100. Tonya’s m other, who brought the suit for back child support, d i d n o t argue on appeal that the statute of limitations w as tolled until T o n y a turned t wenty-e i ght, but instead she argued that the lower court erroneously had c o n sidered T onya’s a ffidavit, executed when Tonya was approximately twenty-six. The affidavit had undermined the mother’s c laim f or child support because in it Tonya had waived all her rights and claims t o any b a c k child support that her father may have owed. Id. at 100-01. On appeal, the court held that Tonya’s mother did not have standing to sue for arrearage, because he r c apacity to sue only served as a conduit for Tonya, and, at the time the s uit was filed and t he affidavit was e xecuted, Tonya was an adult (age twenty-six) a nd she had explicitly discla i m e d a n y right t o sue after she r eached majority. Id. at 102-03. It is true that the court c oncluded that, in
any event, the statute of l imitations had run o n t h e claim. Id. a t 1 03. Brink tak e s t his statement and argues it c l early demonstrates that the statute of limitations begins to run when a c hild is emancipated, n ot w hen she reaches the

a g e of majority—as Tonya’s claim would h ave been viable if t he seven-y e a r statute of limitations were tolled until she turned twenty-one. The court’s remark, however, was c l e a r l y non-binding dictum unrelated to the issue addressed by t he decision of t he c ourt. See In re Cajun Elec. Power Coop., Inc. , 109 F.3d 248, 256 ( 5th Cir. 1997) (describing dictum as a statement that “‘could have been deleted without seriously impairing the analytical foundations of the holding–[and], being peripheral, may not have received the f ull and careful consideration of the court that uttered it’” (quoting Sarnoff v . A m. Home Prods. Corp. , 798 F.2d 1075, 1084 (7th C ir. 1986))). Whatever its classif i cation, however, this c ourt of appeals statement in White certainly can n ot now be relied
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upon for the proposition that emancipation of a child h as the effect o f removing the disability of infancy when this que s tion was never raised in the case; furthermore, the state supreme court cases are in conflict w ith the c o nsequences of such a broad holding. 9 Finally, we should observe that Brink h as relied solely upon cases that have arisen i n the context of d omestic relations, and has referred us t o no case addressing t he savings clause as it relates to tort claims similar to those at issue here. Indeed, each case upon which Brink relies addressed whether an emancipated child’s claim for unpaid child support remained viable or had been extinguished by the s tatute of li mitations. Thus, even assuming each case stands for the proposition Brink attributes t o it, Brink at best has demonstrated that emancipat i o n , o c c u rri n g b e f o r e r e a c h i n g m a

jority age, may a llow the statute of l i mitations to begin to r un a gainst a child f or purposes of collecting back child support. This demonstrat i o n i s not ultimately helpful for Brink, as the Mississippi Code makes clear that the disability of minority may be removed for

some p urpos e s w h i l e remaining in place for other purposes. See M I S S

. C O D E AN N
. § 93-19-9 (noting the decree o f r e moval must “distinctly s pecify to what extent the disability of the m inor i s r e m o v ed, and what c h aracter of acts he is empowered to perform notwithstanding his minority” )

. Furthermore, the Mississippi statutes e xplicitly require a Ch a n c e l l o r to remove the disability of minority from an i n dividual under twenty-one before t h at i ndividual can be deemed not t o suffer from the disability. See M I S S

. C O D E AN N
. § 9 3-19-9; Miss. Unif. Ch. Ct. R. 7.03 (“In all cases for the removal of disability o f a resident mino r , t h e m inor m ust be produced before the Chancellor for observation and

9 Brink p rof

f ers one f inal cas e, Burt v . Burt , 841 So. 2d 108 (M is s . 2001) , f or s up p ort of its argum ent. Again, how ever, the is s ue we are now ad d res s ing w as not rais ed in that cas e. M oreover, the language help ful to Brink ’s argum ent com es f rom the partial concurrence and p artial d is s ent that tw o jus tices joined , and the m ajority op inion d oes not m ak e any ref erence to the s avings s tatute. 9 Case: 12-60589 Document: 00512301296 Page: 9 Date Filed: 07/09/2013No. 12-60589

examination unless specially excused from doing so.”); Miss. State Tax Comm’n

v. R eynolds , 351 So. 2d 326, 328 (Miss. 1977) (holding the chancellor must find

a m inor of “maturity, s o u n d j udgment and i ntelligence” to remove disability). These statutes and c ases m ake clear t h a t removal of t he disability of minority does not arise automatically upon t he occurrence of specified events except for reaching the age of twenty-one; this limitation s tands in s tark c o n t r a s t with

emanc i pation, which may be deemed to have automatically arisen upon the

occurrence of statut o r ily designated e vents. See M I S S

. C O D E AN N
. § 93-11- 65(8)(a) (detailing the condi tions u nder which emancipation o ccurs). Brink’s argument that emancipation triggers t h e automatic removal of disability of minority is t hus at odds with the Code’s plain requirements. Brink has offered

no reason to suggest that t h e c o u r ts o f Mississippi would rule in its favor by reading such a tension into the Mississippi Code. III. In sum, the Mississippi Code clearly distinguishes b etween the concepts of emancipation and the disability of infancy, as w e ll as the implications of each, and Mississippi ca s e s d o n o t illustrate an intent to deviate from this clear distinction. W e thus hold that, under Mississippi law, the statute o f limitations did not begin to run agai n s t P a g e until he r e ached the age of majority. The judgment of the district court is, therefore, AFFIRMED.

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OWEN, Circuit Judge, concurring in the judgment: This c ase was briefed t o our court based o n t he argument that Page’s disability of minority was removed by s ection 9 3-11-65 ( 8 ) (a) of the Mississippi Code. 1 I agree that this section did not r emove Page’s disability of m inority for
purposes of permitting him to sue for his personal injuries. That is because, by it s o w n terms, s ection 93-11-65(8)(a) d eals only with the d u ty of child support upon e mancipation o f a c hild. 2 It is found in C hapter 11 of the Mississippi Code, which is entitled “E n f o r c e m ent of Support of Dependents.” However, I do not think i t necessary to draw a sweeping distinction between “removal of disability” and “emancipation,” as the p anel opinion d oes, to decide the only i ssues that are presented by this appeal. I therefore do not j oin the p a nel majority’s o pinion in this latter regard and concur only in the judgment. Chapter 19 of the Mississippi Code i s entitled “ R e m o v a l o f Disability of Minority” and addresses a number of circumstances in w hich the disability of a minor may be removed. I note that it is at least arguable that Page’s disability of minority may be partially removed b y a provision f ound in Chapter 19, section 93-19-13, 3 whi c h i s s e l f-effectuating and does not r equire a decree from the chancery court. 4 Section 9 3-19-13 m ay have the effect of removing Page’s disability of minority as to his personal injuries, a t l e ast under some circumstances. That section of the Mississippi Code provides as follows: Al l p e rsons eighteen ( 18) years o f a ge or older, if not other w i s e disqualified, or prohibited by law, shall have t h e c apacity to enter into binding contractual relationships affecting personal p roperty.

1 M I SS

. C ODE AN N

. § 93- 11- 65( 8) ( a) ( 2004 & Sup p. 2012)

.
2 Id

. ( “The d uty of s up p ort of a child term inates up on the em ancip ation of the child

. ”)

3 Id. § 93- 19- 13.

4 See G a rrett v . Ga

y , 394 So. 2d 321, 322- 23 (M is s . 1981)

.

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Nothing in this section shall be construed to affect any c ontracts entered into prior to July 1, 1976. In any legal action founded on a c ontract entered into by a p ers o n e i g h t e e n ( 1 8) years of a ge or older, the said person may sue in his own name a s an adult and be sued in his own name as an adult and be served with process as an adult. 5 A cause of action for personal injuries is personal p r operty under Mississippi law. 6 A person eighteen y ears of age or older m ay enter into a valid and enforceable contract to settle a claim for personal injuries, even if suit has not been filed. 7 However, we do not a n d should n ot reach questions regarding the potential effect o f this statute on Page’s claim in the c ase b efore us because

no a rguments regarding this statute wer e p resented to the district court, and this provision of Mississippi law was not raised in Brink’s initial briefing in this court.

5 M I SS

. C ODE AN N

. § 93- 19- 13.

6 See e. g. , Ga rrett394 So. 2d at 322- 23 (M is s . 1981)

.
7 Id. 12 Case: 12-60589 Document: 00512301296 Page: 12 Date Filed: 07/09/2013