Rhea v. Career Gen. Agency, Inc.

JAMES RHEA APPELLANT v. CAREER GENERAL AGENCY, INC., GUIDEONE AMERICA INSURANCE COMPANY AND DENNIS BASDEN APPELLEES

No. 2021-CA-00580-COA

Court of Appeals of Mississippi

December 6, 2022

DATE OF JUDGMENT: 02/03/2020

COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT HON. JOHN KELLY LUTHER TRIAL JUDGE:

ATTORNEYS FOR APPELLANT: WILLIAM O. RUTLEDGE III KAYLYN HAVRILLA McCLINTON

ATTORNEY FOR APPELLEES: CHRISTOPHER LYNN EHRESMAN

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

BARNES, C.J.

¶1. James Rhea filed a complaint in the Circuit Court of Union County against his former employer, Career General Agency Inc. (CGA), a subsidiary of GuideOne America Insurance Company (GuideOne), and Dennis Basden, CGA's Mississippi representative (collectively referred to as the Appellees). The Appellees filed a motion to dismiss, which the circuit court granted, finding Rhea's claims barred by a three-year statute of limitations. The court subsequently denied Rhea's motion to reconsider the judgment. For reasons more fully addressed below, we find that this Court does not have jurisdiction to review the circuit court's order granting the motion to dismiss; so the appeal is dismissed in part. With regard to the court's order denying Rhea's motion to reconsider, we find no error and affirm.

FACTS & PROCEDURAL HISTORY

¶2. Rhea began working as an independent insurance agent for CGA in October 1971 and continued to work for the company for over forty-five years.^[1] Rhea claims that CGA had allowed its insurance agents to sell for other associated insurance companies, one of which was Dairyland Insurance Company (Dairyland). A representative for Dairyland came to Rhea's office and offered him a contract to sell insurance, and Rhea accepted.

¶3. In the fall of 2007, GuideOne summoned Rhea to its Georgia office to discuss the Dairyland contract. According to Rhea he was told that he need not bring his attorney with him. Nevertheless, Rhea brought his brother, also an insurance agent, to be a witness at the meeting held on November 2, 2007. Rhea claimed, however, that GuideOne's vice-president insisted that Rhea's brother leave the room. Rhea alleged that GuideOne then informed him that he had violated the terms of his employment by signing the Dairyland contract and would be fired unless he signed a promissory note for $100,000, requiring monthly payments through 2012.^[2] He alleges that he was also required to sign over his Dairyland business to GuideOne and forfeit his contractually guaranteed bonuses. Rhea thus alleged that he signed the promissory note under duress, fearing he would lose his job and pension. In 2009, Rhea signed a second note, with identical terms, which extended the term of repayment to October 2017, at which time the note was paid in full.^[3] Once the note was paid, GuideOne terminated Rhea's employment.

¶4. On October 22, 2018, Rhea filed a complaint with the circuit court against CGA, GuideOne, and Basden. The complaint asserted claims for unconscionability, conversion, unjust enrichment, and negligent infliction of emotional distress and requested both compensatory and punitive damages.^[4] On August 13, 2019, the Appellees filed a motion to dismiss in the circuit court, arguing that (1) Rhea's complaint failed to state a claim upon which relief could be granted under Mississippi Rule of Civil Procedure 12(b)(6); and (2) Rhea's complaint was barred by the statute of limitations. Rhea responded, reasserting his claims for conversion, breach of good faith and fair dealing, and unjust enrichment. He conceded, however, that he did not have viable claims for negligent infliction of emotional distress and unconscionability. Regarding the Appellees' statute-of-limitations defense, Rhea cited the doctrines of continuing tort and equitable estoppel to argue that his claims were not barred.

¶5. The circuit court held a hearing on the Appellees' motion to dismiss on October 10, 2019. Counsel for the Appellees argued that Rhea's complaint was barred by a three-year statute of limitations because the conduct complained of-the signing of the promissory note-occurred in 2007. Rhea's counsel submitted that the reason for not filing the action prior to 2018 was that Rhea was afraid that "he was going to lose his business, his entire livelihood and his GuideOne franchise if he didn't sign the contract." Regarding the doctrine of continuing tort, Rhea's counsel argued that "[e]very time GuideOne took a payment from Mr. Rhea, it was done under duress and coercion because of the initial contract." Rhea clarified for the circuit court that the only bases for recovery being argued were for conversion and unjust enrichment.

¶6. The circuit court granted the Appellees' motion to dismiss on February 3, 2020, determining that the applicable three-year statute of limitations barred the action because the contract at issue was signed in 2007. See Miss. Code Ann. § 15-1-49(1) (Rev. 2019) ("All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.").

¶7. However, Rhea's counsel was not aware of the court's order being filed until May 2020, when he contacted the circuit clerk's office. Rhea subsequently filed a motion for a new trial, amended judgment, or reconsideration under Mississippi Rule of Civil Procedure 59 on May 12, 2020. In the motion, Rhea explained, "While Plaintiff recognizes the time limit on filing a Motion under Rule 59, he asks the Court to consider that without notice of the Order, he was unable to do so before now. As such, this Motion is brought in good faith and not for delay."^[5] The Appellees filed a response to the motion on the merits on June 8, 2020. A hearing on the motion to reconsider was held on April 7, 2021. The circuit court acknowledged the untimeliness of Rhea's Rule 59 motion but noted that Rhea did not receive the court's order until three months later and that the Appellees had raised no objection "to the timeliness of the filing." The court therefore "deemed the motion for reconsideration timely filed," with no objection by the Appellees.

¶8. Rhea testified at the hearing about his alleged duress surrounding the execution of the promissory note. Rhea admitted that he had shown the note to his attorney after signing it, but he did not file suit until 2018, after being terminated in 2017. When asked if he had an exclusive agency relationship with GuideOne, he testified, "They may say that in writing, but that's not the way they carried out their business operations."

¶9. The circuit court denied Rhea's motion for reconsideration on April 22, 2021, finding that "neither the doctrine of continuing tort nor equitable estoppel appl[ied] to extend the statute of limitations in this action." Aggrieved, Rhea appeals from the circuit court's order granting the motion to dismiss and the court's order denying his motion to reconsider.

DISCUSSION

¶10. Although not raised by either party, we must address the issue of jurisdiction. See Magnolia Health Plan Inc. v Mississippi's Cmty. Mental Health Comm'ns, 334 So.3d 42, 46 (¶14) (Miss. 2021) (noting that even when parties fail to raise the issue of jurisdiction, "we must, when necessary, examine the record to determine the jurisdictional issue sua sponte") (citing M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶4) (Miss. 2006)). As discussed, the circuit court "deemed" Rhea's Rule 59 motion "timely" because Rhea had not received a copy of the order granting the motion to dismiss. Rule 59(e) provides that motions "shall be filed not later than ten days after the entry of judgment," and the advisory committee notes to Rule 59 explicitly state that a "trial court has no authority or discretion to extend the 10-day time period." Because Rhea's motion was filed more than ten days after entry of the court's order, the circuit court did not have the "authority or discretion" to rule that Rhea's motion was "timely filed."

¶11. As further noted by the court, however, the Appellees did not object to Rhea's motion on the basis of timeliness. In Wilburn v. Wilburn, 991 So.2d 1185, 1191 (¶¶12-13) (Miss. 2008), the supreme court determined that although the appellant's Rule 59 motion for reconsideration was filed eleven days after the judgment, the court could address the merits due to the appellee's failure to object or respond to the motion. The supreme court's holding was premised on the well-known axiom that our appellate courts do not review matters unless they are first raised before the trial court. Id. at (¶13). Here, the circuit court and the parties were well aware of the motion's untimeliness, with the court's addressing the issue at the hearing. Therefore, we find the supreme court's reasoning in Wilburn is not applicable to the facts of this case.

¶12. Regardless, Rhea did not timely appeal from the underlying order. "[A]n untimely Rule 59 motion 'does not toll the thirty-day time period to file a notice of appeal.'" Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So.3d 1242, 1250 (¶17) (Miss. Ct. App. 2018) (quoting Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236 (¶8) (Miss. Ct. App. 2013)). In this case, the time for filing a notice of appeal from the court's February 3, 2020 order ended on March 3, 2020, before Rhea had any notice of the order. See M.R.A.P 4(a).^[6]

¶13. Typically, in cases where an untimely Rule 59 motion is filed, the circuit court will treat the motion to reconsider as one filed under Rule 60(b) of the Mississippi Rules of Civil Procedure. See Woods, 111 So.3d at 1236 (¶6) ("The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion."). Any notice of appeal following the denial of a ...