Curry v. Turner

• Decision Date: 12 December 2002
• Docket Number: No. 2000-CA-01309-SCT.,2000-CA-01309-SCT.
• Citation: 832 So.2d 508
• Court: Mississippi Supreme Court
• Parties: Betty CURRY, Administratrix of the Estate of Everett Curry, Deceased, on Behalf of the Estate of Everett Curry and on Behalf of All Wrongful Death Beneficiaries of Everett Curry v. Trent TURNER, Dent Turner and Money Pillai d/b/a Mims One Stop.

832 So.2d 508

Betty CURRY, Administratrix of the Estate of Everett Curry, Deceased, on Behalf of the Estate of Everett Curry and on Behalf of All Wrongful Death Beneficiaries of Everett Curry v. Trent TURNER, Dent Turner and Money Pillai d/b/a Mims One Stop.

No. 2000-CA-01309-SCT.

Supreme Court of Mississippi.

December 12, 2002.

Rayford G. Chambers, Greenville, Charles Victor McTeer, Jackson, Frederick B. Clark, attorneys for appellant.

Richard T. Lawrence, Thomas Y. Page, Jackson, Jeffrey Lee Carson, Ridgeland, Marc A. Biggers, Greenwood, attorneys for appellees.

EN BANC.

PITTMAN, C.J., for the Court.

¶ 1. The administratrix of a deceased's estate brought a wrongful death suit against the deceased's killer in the name of the estate and the deceased's beneficiaries in the Circuit Court of Leflore County. Her motion to amend the complaint to name the owner of the convenience store owner where the deceased died as a defendant on a theory of premises liability and various family members of the killer on a theory of negligent entrustment was granted. Later, the newly named defendants moved to dismiss suit on the grounds that the statute of limitations had run. The trial court granted the motion and entered final judgment in favor of the new defendants.

FACTS

¶ 2. On December 13, 1995, Everett Curry was pumping gas into his car at Mims One Stop on U.S. Highway 82 in Carroll County, Mississippi, when two men drove up. One man, Paul Stewart, went inside to rob the store. The other, Hart Turner, waited outside. While Stewart was inside, Hart Turner forced Everett Curry to the ground and executed him by shooting him in the head.¹ Everett Curry's wife, acting as administratrix of his estate, brought a wrongful death suit against Hart Turner and Paul Stewart on behalf of the estate and Everett Curry's beneficiaries—herself and their two minor children—approximately six months later. On December 11, 1998, almost three years after Everett Curry's death, Curry filed a motion to amend the complaint to add Money Pillai, the owner of Mims One Stop, and Trent Turner, Dent Turner, and Ladonna Turner, family members of Hart Turner, as defendants under different theories of liability.² The trial court granted this motion on April 19, 1999. The circuit clerk neglected to send notice of the entry of the order to Curry, Hart Turner or Paul Stewart and the court file on this case was misplaced for some time. Seven months later, on November 19, 1999, Curry filed the amended complaint which named the new parties as defendants. Service of process was made on the new defendants within 120 days after the amended complaint was filed, and they each raised the defense that the statute of limitations had run and therefore precluded recovery.³ The trial court conducted a hearing on the various motions to dismiss and dismissed the new defendants with prejudice because the statute of limitations had run. Aggrieved, Curry appeals this dismissal.

DISCUSSION

I. WHETHER A MOTION FOR LEAVE TO AMEND A COMPLAINT WITH THE ATTACHED PROPOSED AMENDED COMPLAINT SERVED BEFORE THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS TOLLS THE LIMITATIONS PERIOD WHERE THE TRIAL COURT GRANTS THE SAID MOTION AFTER EXPIRATION OF THE LIMITATIONS PERIOD.

II. WHETHER THE PLAINTIFF DEMONSTRATED "GOOD CAUSE" FOR SERVING AN AMENDED COMPLAINT MORE THAN 120 DAYS AFTER EXECUTION OF AN ORDER GRANTING LEAVE TO AMEND WHERE THE FILE MAINTAINED BY THE CIRCUIT CLERK WAS INEXPLICABLY LOST; THE CLERK FAILED TO SUBMIT A COPY OF THE EXECUTED ORDER TO THE PARTIES AS REQUIRED BY M.R.C.P. 77(D); AND, THE AMENDING PLAINTIFF SERVED THE AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF LEARNING THE ORDER GRANTING AMENDMENT WAS EXECUTED BY THE COURT.

(WHETHER THE TRIAL COURT ERRED IN DISMISSING THE AMENDED COMPLAINT AS BARRED BY THE STATUTE OF LIMITATIONS)

¶ 3. Curry seeks a ruling from this Court that a motion to amend, with the amended complaint attached to the motion, "tolls" the statute of limitations when the motion is made prior to the running of the limitations period. This is to be distinguished from the use of the "relation back" provision of M.R.C.P. 15(c) which allows for an amended complaint to be considered as filed on the date the original complaint was filed under certain circumstances. Curry points to a handful of cases from federal courts in support of this language and asks this Court to follow their lead.

¶ 4. The new defendants refer this Court to case law in Mississippi which is over one hundred years old. These cases obviously predate the adoption of the rules of civil procedure, but support their argument that an amended complaint is only effective when filed. Therefore, if an amended complaint is filed after the statute of limitations has run—regardless of when the motion to amend was made—the statute of limitations bars suits against newly named defendants. Each of these positions and the authority supporting them is examined below.

¶ 5. Rule 15 of the Mississippi Rules of Civil Procedure governs the process of amending complaints and provides in relevant part:

(a)Amendments. A party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served.... Otherwise a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires....

...

(c) Relation back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:

(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and

(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(a), (c) (emphasis added). The italicized portion was added July 1, 1998.

¶ 6. As stated above, Curry relies primarily upon federal law to support her position. In a case decided before the adoption of the Federal Rules of Civil Procedure, the Fifth Circuit reversed an Alabama district court which had dismissed a defendant on an amended complaint because the amended complaint was not filed before the statute of limitations period expired. Rademaker v. E.D. Flynn Exp. Co., 17 F.2d 15 (5th Cir.1927). The plaintiff had filed suit against a company which had sold its interest in the schooner involved in the injury to the defendant without the plaintiff's knowledge. When the plaintiff learned of the mistake before the statute of limitations had run, he moved the district court for leave to amend the complaint to name the new owner as the defendant. Id. at 16. That same day, the district court granted the motion. However, the amended complaint was not formally filed with the court until after the statute of limitations had run. Id. The Fifth Circuit explained its reasoning for reversing the district court's dismissal as follows:

Leave was not asked to change any averment of fact upon which liability was asserted, or the grounds upon which recovery was originally sought, but merely to make defendant a party because of its ownership of a stated interest in the schooner. In this state of the pleadings, process was issued and served upon defendant, before any right of action against it was barred. While there are cases to the contrary, we think the better rule, supported by the weight of authority, is that an application for leave to amend, as full and comprehensive as this one is in its averment of facts, stands in the place of an actual amendment.

Id. at 17 (citations omitted). Rademaker was relied upon by a Mississippi federal district court which held that the filing of a motion to amend and attaching the amended complaint before the statute of limitations had run "tolled the statute of limitations on the added Plaintiffs' claims for a reasonable time." Bradley v. Armstrong Rubber Co., 46 F.Supp.2d 583, 586 (S.D.Miss.1999). In denying the defendant's motion to dismiss on grounds that the statute of limitations had run against the new plaintiffs on the amended complaint, the district court held that an eight-month delay between the district court's granting the motion to amend the complaint and the ultimate filing of the amended complaint was unreasonable. Id. at 586. However, it found the defendant was not prejudiced by the delay because it conducted discovery and deposed the new plaintiffs shortly after the order granting the motion to amend. Id. at 586-87.

¶ 7. The Eighth Circuit also relied upon Rademaker when it held that a motion to amend, coupled with an attached amended complaint, serves to "toll" the statute limitations when filed before the limitations period ends. Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172 (8th Cir.1989). We have also examined cases from federal district courts and various state courts regarding this matter.

¶ 8. The new defendants' argument is based upon pre-Mississippi Rules of Civil Procedure cases decided by this Court. These cases stand for the general proposition that amended complaints filed after the statute of limitations had run will not withstand the bar of the statute of limitations. S...