Hazzard v. Chase Manhattan Corp

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-60607
Summary Calendar
_______________
BRENT HAZZARD,
Plaintiff-Appellant,
VERSUS
CHASE MANHATTAN CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(00-CV-24)
_________________________
October 23, 2001
Before JOLLY, JONES, and SMITH,
Circuit Judges.
PER CURIAM:*
Brent Hazzard challenges a dismissal en-
tered pursuant to the statute of limitations.
Finding no error, we affirm.
I.
This is a negligence claim by Hazzard
against the Chase Manhattan Corporation
(“Chase”) for inaccurate billing on his credit
card. In 1990, Hazzard’s Chase credit card
apparently was stolen; he reported the theft to
Chase. Although his account was closed and
a new one opened, he was sent inaccurate bills
claiming that he owed $55.36 on the old ac-
count and $674.97 on the new. He and his
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 3 --

2
mother repeatedly complained to Chase and
repeatedly were assured that the problem
would be corrected, but apparently nothing
was done.
In September 1991, Hazzard’s account was
referred to a collection agency. In December
1991, he received a statement from Chase indi-
cating that he had purchased an item for
$49.00; Hazzard claims he never made any
such purchase.
During the next several years, Chase
continued its efforts to collect the unpaid
balance from Hazzard, who in turn renewed
his objections. In 1997, Hazzard received a
letter from Performance Capital Management
(“Performance”), a collection agency,
informing him that Chase had sold his account
to them. Finally, in October 1999, Chase
admitted to Hazzard that it had made a
mistake and informed him that it had been
corrected. Hazzard claims that the bad credit
record created by his failure to pay the
inaccurate bill had disqualified him from
several important loans over the intervening
period, including educational loans, a housing
loan, and a loan for his bar exam review
course after graduating from law school.
II.
On January 6, 2000, Hazzard filed a
negligence suit against Chase in state court,
seeking compensatory and punitive damages,
attorney’s fees, the “ability to use credit for
eight years,” and an injunction preventing
Chase from using the advertising slogan “The
Right Relationship Is Everything.” On the ba-
sis of diversity jurisdiction, Chase removed to
federal court, which dismissed the suit as
barred by Mississippi’s three-year statute of
limitations for negligence. MISS. CODE ANN.
§ 15-1-49 (1999).
III.
A dismissal on limitations grounds is re-
viewed de novo. Clymore v. United States,
217 F.3d 370, 373 (5th Cir. 2000). A dismis-
sal is upheld “only if it appears that no relief
could be granted under any set of facts that
could be proved consistent with the
allegations.” Jackson v. City of Beaumont
Police Dep’t, 958 F.2d 616, 619 (5th Cir.
1992). The court must accept all pleaded facts
as true and view them in the light most
favorable to the plaintiff. Cinel v. Connick, 13
F.3d 1338, 1341 (5th Cir. 1994).
The last bad act alleged against ChaseSSthe
inaccurate bill for $49.00SSoccurred in 1991.
Because Hazzard did not sue for nine years,
the action is time-barred. Hazzard, though,
contends that the last act of negligence
occurred on January 7, 1997, when
Performance sent him a letter informing him
that Chase had sold his account to them. The
letter cannot be attributed to Chase. In any
event, it was not, by itself, a negligent act.
Hazzard also argues that Chase’s failure to
correct its mistake over an eight-year period is
a “continuing tort” and therefore falls within
the statute of limitations. Although Hazzard
did not raise this issue in the district court, we
may consider it if it “presents a pure question
of law or [is] an issue which, if ignored, would
result in a miscarriage of justice.” United
States ex rel. Wallace v. Flintco Inc., 143 F.3d
955, 971 (5th Cir. 1998).1 The continuing tort
1Fifth Circuit cases are
inconsistent in delineating the
standard for considering an
issue raised for the first time
on appeal. Some panels have
stated that we need not address
an issue for the first time on
appeal “unless it is a purely

-- 2 of 3 --

3
issue is a “a pure question of law,” because the
relevant facts are not in dispute and must be
viewed in the light most favorable to Haz-
zard’s claim. Id.
Under Mississippi law, “[a] ‘continuing
tort’ is one inflicted over a period of time; it
involves wrongful conduct that is repeated un-
til desisted, and each day creates a separate
cause of action.” Stevens v. Lake, 615 So. 2d
1177, 1183 (Miss. 1993). “A continuing tort
sufficient to toll a statute of limitations is oc-
casioned by continual unlawful acts, not by
continuing ill effects from an original
violation.” Id. (emphasis in original).
Hazzard’s claim is an example of the latter:
The harm to his credit rating during that
period arose from Chase’s original alleged
negligence in improperly calculating his credit
card bill in 1991. There have not been any
“continual unlawful acts” by Chase since 1991,
so there was no “continuing tort sufficient to
toll a statute of limitations.” Id.
AFFIRMED.
legal issue and our refusal to
consider it would result in a
miscarriage of justice.” E.g.,
Heci Exploration Co. v.
Holloway, 862 F.2d 513, 518 &
n.7 (5th Cir. 1988) (emphasis
added). But more recent
decisions hold that this court
may consider an issue first
raised on appeal if it
“presents a pure question of
law or [is] an issue which, if
ignored, would result in a
miscarriage of justice.”
Wallace, 143 F.3d at 971
(emphasis added). Since the
r e s o l u t i o n o f t h i s
contradiction in precedent is
not essential to the outcome of
the present case, we assume
arguendo that the more recent,
more lenient line of cases is
correct.

-- 3 of 3 --