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Estate of Spiegel v. Western Surety Co.8/9/2005
against the sureties of the circuit clerk and former circuit clerk or a contract action against the circuit clerk and former circuit clerk for breach of an express contract, and (3) a negligence/malpractice claim against Nicholson, a private attorney. The provisions of the MTCA are applicable to the claims of negligence against the circuit clerk and the former circuit clerk, but the other claims are subject to the general provisions of our law covering such causes of action. Thus, we find that more than one statute of limitations may have been applicable to the separate, named defendants. Having said that, we must now move on to discuss the issue of when Spiegel's action accrued, because, as we shall see, depending upon the date when action accrued, whether the statute of limitations is one year or three years will not change the outcome.
Accrual of Spiegel's Action
. On the issue of accrual, our supreme court has held, "A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested." Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 706 (Miss. 1990). Applying the idea of accrual to the question of when a statute of limitations begins to run, the Owens-Illinois court went on to declare, "The cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury . . . ." Id. at 709. The Owens-Illinois court also held that an injury must occur before a tort is complete for accrual purposes. Id. at 707.
. Spiegel seizes upon language from the Owens-Illinois case, arguing that his action did not accrue until he was actually injured and that he was not actually injured until the bankruptcy court held his judgment to be unenforceable. He argues that his suit would have been held to have been premature, had he brought the suit before the bankruptcy court ruled on the enforceability of the New Jersey judgment. Spiegel also argues that he could not have been injured on June 9, 1997, because at that time Rayner was in her second bankruptcy proceeding.
. We disagree with Spiegel's arguments on these points, and we will address each of them in turn.
First, one of the two alternate accrual dates offered by Spiegel is later in time than the date of the filing of his complaint. Thus, his own argument is problematic, in that it argues, at least in the alternative, against the timeliness of the filing of his complaint (since he filed his action before August 20, 2003, then under his own argument here, his action was prematurely filed).
. In addition, the record demonstrates that Spiegel actually discovered the failure of the circuit clerk to enroll the judgment, at the latest, on June 9, 1997. We declared "at the latest" in the previous sentence purposefully, because there is some indication in the record that Spiegel had knowledge or should reasonably have had knowledge, through the exercise of due diligence, of the circuit clerk's error some time before June 9, 1997. In any event, on June 9, 1997, the point at which there can be no doubt that Spiegel knew the circuit clerk failed to enroll the judgment in 1990, Spiegel had a potential cause of action against the clerk. Young v. Benson, 828 So. 2d 821, 823 ( ) (MisS.Ct. App. 2002) (holding that a plaintiff's cause of action against the chancery clerk accrued at the time the clerk failed/neglected to perform an official duty allegedly owed to the plaintiff).
. Yet, Spiegel argues that he did not suffer any actual injury until September 30, 2002 or August 20, 2003 (as many as thirteen years after the occurrence of the alleged act of negligence on the part of
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