Follette v. Wal-Mart Stores, Inc.
| Decision Date | 01 March 1995 |
| Docket Number | WAL-MART,No. 94-1458,94-1458 |
| Citation | 47 F.3d 311 |
| Parties | Kent Andrew FOLLETTE, individually and as next friend of Andrew Stephenson Follette, a minor child; Jane Elizabeth Follette, individually and as next friend of Andrew Stephenson Follette, a minor child, Appellants, v.STORES, INC., doing business as Sam's Wholesale Club, a division of Wal-Mart Stores, Inc., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James A. Rasmussen, Wichita Falls, TX, argued, for appellants.
G. Luke Ashley, Dallas, TX, argued, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
This opinion is the second in which we attempt to sort out the procedural morass entangling this case. In this opinion we address whether Kent and Jane Follette's individual claims, as opposed to those brought on behalf of their minor son, are barred by the Arkansas statute of limitations. For the reasons set forth below, we affirm that portion of the District Court's summary judgment which dismisses the Follettes' individual claims. In all other respects, we adhere to our original opinion.
The Follettes' son was injured when a jug of hairspray purchased from Wal-Mart exploded on August 21, 1989. The Follettes' first attempt to recover for damages received in that accident, on a products-liability theory, ended with a summary judgment in favor of Wal-Mart because the action was not filed within Louisiana's limitations period. The Follettes then filed this breach-of-warranty action in the United States District Court for the Eastern District of Arkansas. Wal-Mart was granted summary judgment on the alternative grounds of res judicata and limitations by the Arkansas Court. The Follettes appealed.
In our first opinion, we held that the breach-of-warranty suit brought by the Follettes on behalf of their minor son, Andrew, was not barred by the Arkansas statute of limitations because of the Arkansas minority savings statute. Additionally, we held that the Follettes' suit fell within the "exceptional circumstance" exception to the Louisiana res judicata statute. Thus, we reversed the District Court's grant of summary judgment in favor of Wal-Mart as to the claims brought on behalf of Andrew Follette by his parents. Follette v. Wal-Mart Stores, 41 F.3d 1234 (8th Cir.1994).
In its petition for rehearing Wal-Mart has pointed out that Mr. and Mrs. Follette, in addition to the claims brought on behalf of their son, brought certain claims in their own right. Citing our holding that the three-year statute of limitations governing products-liability actions applies to this suit, Wal-Mart argues that the Follettes' suit in their own right is barred. The Follettes, on the other hand, argue that the statute of limitations was tolled by the filing of their original suit, which was still pending in the Supreme Court of the United States on petition for writ of certiorari when this suit was filed. Alternatively, the Follettes argue that Arkansas's general savings statute applies to this case. Thus, they claim they had an additional year after the denial of certiorari by the Supreme Court in which to file this suit.
The petition for rehearing by the panel is granted, and we now consider on their merits the arguments with respect to the limitations period governing the Follettes' suit in their own right. 1
If the Follettes' individual claims survive, they do so only by operation of the savings statute. Under this statute, "if any action is commenced within the time prescribed ... and the plaintiff therein suffers a nonsuit, ... the plaintiff may commence a new action within (1) one year...." Ark.Code Ann. Sec. 16-56-126 (Michie 1987). The statute is written in the conjunctive, meaning two conditions must be met in order to fall within its language; the original action must be timely, and the plaintiff must suffer a nonsuit in that action. Young v. Garrett, 212 Ark. 693, 698, 208 S.W.2d 189, 192, cert. denied, 335 U.S. 814, 69 S.Ct. 31, 93 L.Ed. 369 (1948); Hill v. Pipkins, 72 Ark. 549, 81 S.W. 1216 (1904). The Follettes cannot benefit from the savings statute because they did not suffer a nonsuit in their original action.
A nonsuit, under the...
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