178 So.3d 755 (Miss.App. 2012), 2010-CA-01229-COA, All Types Truck Sales, Inc. v. Carter & Mullings, Inc.
|Citation:||178 So.3d 755|
|Opinion Judge:||MAXWELL, J.|
|Party Name:||ALL TYPES TRUCK SALES, INC., A MISSISSIPPI CORPORATION, APPELLANT v. CARTER & MULLINGS, INCORPORATED, A MISSISSIPPI CORPORATION, APPELLEE|
|Attorney:||FOR APPELLANT: BLEWETT W. THOMAS. FOR APPELLEE: WILLIAM E. WHITFIELD III, KAARA LENA LIND.|
|Judge Panel:||BEFORE GRIFFIS, P.J., MAXWELL AND RUSSELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.|
|Case Date:||September 11, 2012|
|Court:||Court of Appeals of Mississippi|
DATE OF JUDGMENT: 06/29/2010.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT DISPOSITION: DISMISSAL OF PLAINTIFF'S NEGLIGENCE CLAIMS.
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE
[¶1] A judge sitting in a bench trial should grant a defendant's motion for an involuntary dismissal at the close of a plaintiff's case if, after viewing the evidence fairly, the judge would find for the defendant. That is exactly what happened here. The trial judge dismissed All Types Truck Sales Inc's negligence claims against Carter & Mullings Incorporated (Carter)--a construction company tasked with widening the public roadway where All Types' business was located. We find no manifest error in the trial judge's dismissal.
[¶2] We also find no abuse of discretion in the trial judge's denial of a pretrial permissive-joinder motion, in which All Types, a now-dissolved corporation, sought to join its sole owner, William Joleff, as a plaintiff. Permissive joinder is a procedural device to prevent multiple lawsuits. It does not confer substantive rights. Because
Joleff failed to assert his personal claims against Carter within the three-year statute of limitations, we find the trial judge properly denied Joleff the procedural use of joinder to gain a substantive right he had long since waived.
[¶3] We affirm.
Facts and Procedural History
[¶4] In 1996, Joleff incorporated All Types, a business selling and servicing commercial trucks and tractors. Joleff was the sole owner and officer of All Types, which was located on Dedeaux Road in Gulfport, Mississippi, on a piece of property Joleff owned individually.
[¶5] From October 1998 to April 2004, the City of Gulfport carried out a project to widen Dedeaux Road along the stretch where All Types was located. The City obtained a temporary easement outside of All Types' fence during construction. Carter was the general contractor, hiring REO Contracting Company Inc. as a subcontractor. According to All Types, REO and Carter blocked its sole entrance to its business multiple times and constructed a " hump" that made it difficult for commercial trucks to enter and exit the property.
[¶6] All Types sued REO and Carter in November 2001, claiming they negligently disrupted its business and this disruption led to decreased sales, loss in customers, and ultimately the close of the business. All Types also brought intentional-tort and breach-of-contract claims. All Types was unable to serve REO with process, making Carter the only defendant.
[¶7] In October 2004, All Types filed a motion under Mississippi Rule of Civil Procedure 25 to substitute Joleff as the plaintiff because All Types had dissolved as a corporation since filing its complaint. The trial judge entered an agreed order denying the motion. In April 2008, All Types filed a motion under Mississippi Rule of Civil Procedure 20(a) to join Joleff as a plaintiff, so that he could bring his claim that Carter's negligence led to the devaluation of his property. The trial judge...
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