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, Finding no error, we affirm.

Circuit Judges.

I.

PER CURIAM:* This is a negligence claim by Hazzard against the Chase Manhattan Corporation Brent Hazzard challenges a dismissal en- (“Chase”) for inaccurate billing on his credit tered pursuant to the statute of limitations. card. In 1990, Hazzard’s Chase credit card apparently was stolen; he reported the theft to Chase. Although his account was closed and * Pursuant to 5TH CIR. R. 47.5, the court has a new one opened, he was sent inaccurate bills determined that this opinion should not be published claiming that he owed $55.36 on the old ac- and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. count and $674.97 on the new. He and his mother repeatedly complained to Chase and III. repeatedly were assured that the problem A dismissal on limitations grounds is re- would be corrected, but apparently nothing viewed de novo. Clymore v. United States, was done. 217 F.3d 370, 373 (5th Cir. 2000). A dismis- sal is upheld “only if it appears that no relief In September 1991, Hazzard’s account was could be granted under any set of facts that referred to a collection agency. In December could be proved consistent with the 1991, he received a statement from Chase indi- allegations.” Jackson v. City of Beaumont cating that he had purchased an item for Police Dep’t, 958 F.2d 616, 619 (5th Cir. $49.00; Hazzard claims he never made any 1992). The court must accept all pleaded facts such purchase. as true and view them in the light most favorable to the plaintiff. Cinel v. Connick, 13 During the next several years, Chase F.3d 1338, 1341 (5th Cir. 1994). continued its efforts to collect the unpaid balance from Hazzard, who in turn renewed The last bad act alleged against ChaseSSthe his objections. In 1997, Hazzard received a inaccurate bill for $49.00SSoccurred in 1991. letter from Performance Capital Management Because Hazzard did not sue for nine years, (“Performance”), a collection agency, the action is time-barred. Hazzard, though, informing him that Chase had sold his account contends that the last act of negligence to them. Finally, in October 1999, Chase occurred on January 7, 1997, when admitted to Hazzard that it had made a Performance sent him a letter informing him mistake and informed him that it had been that Chase had sold his account to them. The corrected. Hazzard claims that the bad credit letter cannot be attributed to Chase. In any record created by his failure to pay the event, it was not, by itself, a negligent act. inaccurate bill had disqualified him from several important loans over the intervening Hazzard also argues that Chase’s failure to period, including educational loans, a housing correct its mistake over an eight-year period is loan, and a loan for his bar exam review a “continuing tort” and therefore falls within course after graduating from law school. the statute of limitations. Although Hazzard did not raise this issue in the district court, we II. may consider it if it “presents a pure question On January 6, 2000, Hazzard filed a of law or [is] an issue which, if ignored, would negligence suit against Chase in state court, result in a miscarriage of justice.” United seeking compensatory and punitive damages, States ex rel. Wallace v. Flintco Inc., 143 F.3d attorney’s fees, the “ability to use credit for 955, 971 (5th Cir. 1998).1 The continuing tort eight years,” and an injunction preventing Chase from using the advertising slogan “The 1 Right Relationship Is Everything.” On the ba- Fifth Circuit cases are inconsistent in delineating the sis of diversity jurisdiction, Chase removed to standard for considering an federal court, which dismissed the suit as issue raised for the first time barred by Mississippi’s three-year statute of on appeal. Some panels have limitations for negligence. MISS. CODE ANN. stated that we need not address § 15-1-49 (1999). an issue for the first time on appeal “unless it is a purely issue is a “a pure question of law,” because the so there was no “continuing tort sufficient to relevant facts are not in dispute and must be toll a statute of limitations.” Id. viewed in the light most favorable to Haz- zard’s claim. Id. AFFIRMED.

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,

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 resolution of this 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.