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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-7665
Summary Calendar
LINDA HAYLES CURRY,
Plaintiff-Appellant,
Cross-Appellee,
VERSUS
PORTER HURT, ET AL.,
Defendants-Appellees.
Cross-Appellants.
Appeal from the United States District Court
For the Northern District of Mississippi
CA WC91 81 B D
( July 6, 1993 )
Before HIGGINBOTHAM, SMITH and DEMOSS, Circuit Judges.
PER CURIAM:*
This appeal arises from the district court's grant of a motion
for summary judgment. The court ruled that the three year statute
of limitations applicable to oral contracts precluded the
plaintiff's action for breach of contract. At issue in the suit

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was the time when the cause of action accrued and, ultimately,
whether the dispositive installment contract exception applied to
save the contract. The court rejected the exception and
consequently, found that the action had accrued more than three
years before the date of filing. The plaintiff, Curry, appeals the
court's ruling and its dismissal of her claim. We affirm.
I- FACTS AND PROCEEDINGS BELOW
In 1985, plaintiff Linda Hayles Curry entered into an oral
agreement with the manufacturer of toning tables which allowed her
to market their products under a private label. The toning tables
were sold through her Mississippi corporation, "Tan & Tone."
Supply problems with the manufacturer caused Curry to approach
Porter Hurt, an officer of Sun Industries. Curry hoped to persuade
Sun, an Arkansas manufacturer of toning tables, to enter the toning
table market. Another corporation connected to Hurt, the defendant
Spirit Manufacturing, Inc. ("Spirit"), agreed to manufacture and
sell exclusively to Curry's company (Tan & Tone) the toning tables
for $8,000 a set. Curry would retail these tables under her
private label. This agreement was never reduced to writing, though
the district court found the parties all agreed that these were the
terms of the initial contract.
The problems at the heart of this appeal stem from the
subsequent modification of the initial contract. Later that same
year, Curry found that demand for the tables far exceeded Tan &
Tone's retailing capacity. She went to Arkansas to discuss the
problem with Hurt. Curry proposed selling her operation, an offer

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which Hurt declined. The parties agreed to modify the terms of the
initial agreement. The new terms: allowed Curry to continue
purchasing the tables for $8,000 a set; granted her exclusive sales
territories; and required Hurt to pay her $2,500 per set for the
first one hundred sets of toning tables sold to persons other than
Curry. Thereafter, a royalty or commission would be paid, with the
price to be negotiated. The terms of this agreement were again not
reduced to writing. Hurt made notations on a scratch pad of the
royalty schedule which he gave to Curry who subsequently discarded
it.
Spirit made the requisite payments for two years before
refusing to make further payments. On June 11, 1987, Hurt sent
Curry a letter informing her that her commissions "far exceed[]
what we had anticipated. . . [W]e must stop your commission
schedule. . . I simply feel that you have made enough money to
date." Curry immediately contacted Hurt with complaints of the
payment termination and requested their reinstatement. After much
discussion and ten months after the letter, Hurt sent Curry two
checks totaling $300,000. Each check bore the notation: "Royalty
Payment- Final." Curry received the money on April 1, 1988 and
immediately deposited it into a Tan & Tone account.
More than two years later, on November 13, 1990, Curry wrote
to Hurt threatening a lawsuit unless he responded. Hurt met with
Curry and told her that he would consider paying additional sums
but that no money was presently available. Hurt asked that Curry
delay filing until February 1, 1991 in order to consider the idea.

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1 See, Sloan v. Taylor Mach. Co., 501 So.2d 409, 411 (Miss.
1987).
2 See, §15-1-29, Miss. Code Ann. (1972).
4
No further payments arrived and on July 2, 1992, Curry filed this
suit.
Curry's complaint alleged that the Hurt brothers were
individually liable for breach of contract and fraud. The
defendants responded with six affirmative defenses. After
discovery was completed, the defendants filed a motion for summary
judgment which claimed that the applicable statute of limitations
barred Curry's claims. The defendants also requested summary
judgments on all six of their defenses.
On September 28, 1992, the district court granted summary
judgment on the plaintiff's claims and dismissed the action with
prejudice. The court, applying Mississippi choice of law rules,
found that the statute of limitations issue was a procedural matter
and, therefore, governed by Mississippi law. The court found the
modified agreement was an oral contract because its indefiniteness
would require parol evidence to complete the terms.1 This
conclusion led the court to apply the three year statute of
limitations2 applicable to oral contracts, as opposed to the six
-year statute for written contracts. The court concluded that the
plaintiff's claim was barred under the statute because Hurt's
letter of June, 1987 created a total breach and started the tolling
of the statute. The court ruled that Curry was barred from
bringing a single cause of action for total breach because the

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action had accrued more than three years before the date of filing.
The district court also concluded that there was no evidence to
support the plaintiff's claim of fraud. Without this tort claim,
the court found that there could be no individual liability against
the corporate officers of Spirit. The court, therefore, dismissed
the claims against the Hurt brothers individually. The court also
denied the defendant's motions for summary judgment on their six
affirmative defenses.
II
Appellant claims that the district court erred, as a matter of
law, in holding that the claim was barred by the three year statute
of limitations. The defendants filed a cross-appeal claiming that
the district court erred in denying their motions for summary
judgment on the basis of the Statute of Frauds and on the doctrine
of Accord and Satisfaction. Both parties base their motions on 28
U.S.C. §1291 which allows appeals from any final judgment.
We begin by noting that we have no appellate jurisdiction to
hear the cross-appeal. 28 U.S.C. §1291 states, in relevant part,
that
[t]he courts of appeals shall have jurisdiction of
appeals from all final decisions of the district courts
of the United States. . . (emphasis added)
The denial of summary judgment which the counter-appellants are
appealing is not a "final judgment." Pacific Union Conference of
Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1306, 98 S. Ct.
2 (1977). In that case, the Supreme Court declared that "[t]he
order denying summary judgment which the applicants seek to have

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reviewed here. . . is not even appealable to the Court of Appeals
under 28 U.S.C. §1291. . . [I]t is not a `final order or decision'
within the meaning of that section. . . ." Therefore, we only
have jurisdiction over the appeal and must dismiss the counter-
appeal.
Our inquiry into the appellant's claims falls within certain
parameters. The standard of review for a district court's grant of
summary judgment is de novo. Davis v. Illinois Central R.R., 921
F.2d 616, 617-18 (5th Cir. 1991). The law which we must apply is
decided by Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61
S. Ct. 1020, 85 L. Ed. 1477 (1941). The general rule is that a
federal court in a diversity action, such as this, follows the
choice of law rules of the state in which it sits. Under the Erie
Doctrine, a federal court sitting in diversity must also apply the
state's rules regarding the applicable statute of limitations.
Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.
Ct. 1233, 93 L. Ed. 1520 (1949); Guaranty Trust Co. v. York, 326
U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079; See also, Gillies
Aeronaves de Mexico, S.A., 468 F.2d 281 (5th Cir. 1972), cert.
denied, 410 U.S. 931, 93 S. Ct. 1375, 35 L. Ed. 2d 594 (1973). As
this diversity case was filed in a Mississippi, the district court
applied the choice of law rules of that forum.
In resolving choice of law issues, Mississippi follows the
"center of gravity" or "the most significant relationship" test.
Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968); See also, Boardman
v. United Services Auto Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985).

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3 Arkansas was the forum where performance was to, and in
substantial part did, occur. See, Memorandum of 9/28/92, at 6.
7
When the enforceability and construction of a contract is in issue,
Mississippi's general rule is that the law of the state where
performance is to take place is presumed to have "the most
significant relationship" to the controversy. See, Johnson v.
Knight, 459 F. Supp. 962 (N.D. Miss. 1978).
While Arkansas law controls all substantive issues,3 the
statute of limitations defense is a "procedural" matter. Under
Mississippi choice of law rules, Mississippi law applies to all
procedural matters. See, Shewbrooks v. A.C. & S. Inc., 529 So. 2d
557, 566 (Miss. 1988)(holding that the limitation period of the
applicable statute of the state where the suit is filed controls);
See also, King v. Otasco, Inc., 861 f.2D 438, 441 (5th Cir. 1988)
(applying Mississippi law on statute of limitations). Anything
relating to a statute of limitations defense will also be governed
by Mississippi law. Therefore, whether the contract was oral or
written, for statute of limitations purposes, is an issue "relating
to" a procedural matter and is governed by Mississippi law. The
district court used this analysis to apply Mississippi law in its
determination that the contract was merely an oral agreement to
which the shorter, three-year statute of limitations would apply.
We shall do the same.
Appellant's arguments are based on an exception in the
Restatement (Second) of Contracts. The pertinent Restatement
section begins with the general rule that:

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Section 243. Effect of a breach by non-performance as
giving rise to a claim for damages for total breach . .
. . (emphasis added)
Appellant relies on the exception to this general rule which states
that:
(3) Where at the time of the breach the only remaining
duties of performance are those of the party in breach
and are for the payment of money in installments not
related to one another, his breach by non-performance as
to less than the whole, whether or not accompanied or
followed by repudiation, does not give rise to a claim
for damages for total breach. Restatement (Second) of
Contracts, §243(3) (emphasis added).
The issue on appeal is upon what date did the Mississippi
statute of limitations begin to run. The dispositive question is
whether this contract is an installment contract or a contract
which uses monthly payments as a mere method of compensation. If
it is the latter, then the defendant's breach was a total breach
which occurred outside the limitations period. The "total" breach
would have occurred in June 1987 with Hunt's letter. The plaintiff
would, therefore, have had to sue before June 1990, instead of July
1992. If it is an installment contract then, then Mississippi law
states that "where a debt is payable in installments the statute of
limitations begins to run as to each installment from the time it
becomes due and the creditor can recover only on those installments
falling due within the statutory period." Meridien Prod. Credit
Ass'n v. Edwards, 231 So. 2d 806, 808 (Miss. 1970).
The district court rejected the appellant's argument that an
installment contract existed. The court found that the exception
applied only when there was an underlying debt which obligated the
debtor to make installment payments. We agree. The facts of the

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case do not appear to transform the oral contract into the
requisite "installment" contract. There was no "underlying
`debt'" involved. We agree with the district court that, without
a debt, payment in installments becomes nothing more than the
method and time of compensation.
We affirm.

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