Garlock Sealing Technologies LLC v. Marypittman
| Decision Date | 14 October 2010 |
| Docket Number | NO. 2008-IA-01584-SCT,NO. 2008-IA-01599-SCT,NO. 2008-IA-01572-SCT,2008-IA-01572-SCT,2008-IA-01584-SCT,2008-IA-01599-SCT |
| Parties | GARLOCK SEALING TECHNOLOGIES, LLC, SUCCESSOR BY MERGER TO GARLOCK, INC., TRANE US INC., FORMERLY KNOWN AS AMERICAN STANDARD, INC., RAPID-AMERICAN CORPORATION v. MARYPITTMAN, EXECUTRIX OF THE ESTATE OF LONNIE PITTMAN, DECEASED and TRANE US, INC. FORMERLY KNOWN AS AMERICAN STANDARD, INC., FLOWSERVE US, INC., AS SUCCESSOR TO ROCKWELL MANUFACTURING CO., EMERSON ELECTRIC CO., GARLOCK SEALING TECHNOLOGIES, LLC, SUCCESSOR BY MERGER TO GARLOCK, INC., SEPCO CORPORATION AND FURON COMPANY v. MARYPITTMANAS THE EXECUTRIX OF THE ESTATE OF LONNIE PITTMAN and GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, THE GORMAN-RUPP COMPANY, ERRONEOUSLY NAMED AND SERVED AS THE GORMAN-RUPP COMPANY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO C. H. WHEELER MFG. CO., PATTERSON PUMP COMPANY, IPT PUMPS, AND ECONOMY PUMPS, DORR-OLIVER, INC., KEELER/DORR-OLIVER, ERRONEOUSLY SUED AS DORR-OLIVER, INC., SULZER PUMPS (US), INC., WARREN PUMPS, INC., WARREN-RUPP, INC., AND YUBA HEAT TRANSFER LLC., RAPID-AMERICAN CORPORATION v. MARYPITTMAN, EXECUTRIX OF THE ESTATE OF LONNIE PITTMAN, DECEASED |
| Court | Mississippi Supreme Court |
TIMOTHY W. PORTER
PATRICK C. MALOUF
EN BANC.
¶1 In December 2002, Lonnie Pittman filed an asbestos suit against the above-listed entities (collectively referred to as "Appellants"), along with numerous others. It was laterdiscovered that Lonnie had died long before the suit was ever filed. Mary Pittman, Lonnie's widow, attempted to substitute herself as the proper plaintiff. Later, in August 2005, Mary filed an amended complaint as executrix of Lonnie's estate. We must decide whether the December 2002 complaint—filed in the name of a dead person—was a nullity, and, if so, whether Mary nevertheless could be substituted as the proper party to that complaint. We find that the December 2002 complaint was a nullity, and as such, Mary could not be substituted to it. But our inquiry does not end there. We also must determine the effect of Mary's 2005 amended complaint. This amended complaint, though instituted by a proper party, was filed outside the statute of limitations. But under Mississippi law, the statute of limitations is an affirmative defense that can be waived in certain circumstances. We must decide whether all or certain Appellants have waived the defense here. We find that they have not. Because the initial complaint was a nullity, and because Mary's 2005 amended complaint was barred by the statute of limitations, summary judgment should granted for Appellants. We therefore reverse and render the judgment of the circuit court.
¶2. In December 2002, Robin C. Nettles and Lonnie Pittman filed an asbestos suit against eighty-four named defendants and several John Does. In the following months, Robin and Lonnie filed two amended complaints that added hundreds more defendants.
¶3. On April 16, 2004, one of the defendants, who has since been dismissed from this case, filed a suggestion of death showing that Lonnie had died on March 11, 2001—nearly two years before the original suit had been filed. Plaintiffs' counsel responded days later byfiling a motion to substitute Mary C. Pittman, Lonnie's widow, as a plaintiff. One day after the motion to substitute was filed, an order granting substitution was entered.
¶4. On August 16, 2004, numerous defendants, including several who are parties to this appeal, filed a motion to dismiss, or in the alternative, to sever Robin's and Lonnie's claims. The motion sought dismissal of Lonnie's claims on the basis that he had predeceased the filing of the suit. The circuit court conducted a hearing on this motion and, one month later, the claims were severed by agreed order.
¶5. On May 18, 2005, certain defendants noticed a hearing on June 22, 2005, for their motion to dismiss, or alternatively, motion for a more definite statement, motion to require particularity under Rule 9(b) of the Mississippi Rules of Civil Procedure, and motion for a protective order. On the date of the hearing, the parties executed an agreed order requiring plaintiff's counsel to file an amended complaint that conformed with the requirements set forth in Harold's Auto Parts, Inc., v. Mangialardi, 889 So. 2d 493 (Miss. 2004), and its progeny.
¶6. On August 22, 2005, an amended complaint was filed naming Mary C. Pittman, Executrix of the Estate of Lonnie Pittman, as the plaintiff. The amended complaint alleged that Lonnie's exposure to asbestos had caused him to suffer numerous asbestos-related injuries and, ultimately, death. Each of the Appellants answered the amended complaint, asserting the statute of limitations as a defense.
¶7. About two months later, on October 14, 2005, Gardner Denver, Inc., General Electric, Company, Gorman-Rupp Co., Dorr-Oliver, Inc., Keeler/Dorr-Oliver, erroneously sued as Dorr-Oliver, Inc., Sulzer Pumps (US), Inc., Warren Pumps, Inc., Warren-Rupp, Inc., and Yuba Heat Transfer, Inc., filed a motion to dismiss and motion for protective order. Trane US, Inc., formerly known as American Standard, Inc., and Emerson Electric Co., later joined this motion, as well. These particular defendants, all parties to this appeal, will be referred to hereinafter as the "Gardner-Trane Appellants." The Gardner-Trane Appellants asserted that the substitution of Mary was improper under Rule 25 of the Mississippi Rules of Civil Procedure, and that the entire matter should be dismissed because the statute of limitations had expired. They further asked that all discovery be stayed. No hearing on this motion was requested at the time.
¶8. Very little action took place for more than twenty months until May 31, 2007, when Mary noticed a depostion. Days later, on June 6, 2007, some twenty and a half months after filing its answer to Mary's amended complaint, Garlock Sealing Technologies, LLC, filed a motion for summary judgment. Garlock maintained that, since Lonnie had died before the complaint was filed, the initial complaint was a nullity. Garlock further alleged that the 2005 amended complaint was barred by the statute of limitations.
¶9. On June 8, 2007, both Garlock and the Gardner-Trane Appellants noticed a hearing on their respective motions.
¶10. A hearing was held in August 2007 on Garlock's Motion for Summary Judgment and on the Gardner-Trane Appellants' Motion to Dismiss and Motion for Protective Order. The circuit court denied both parties'motions. It denied Garlock's Motion for Reconsideration, as well. Garlock sought interlocutory review of this decision, but this Court denied Garlock's petition as untimely.
¶11 On February 12, 2008, a motion for trial setting was filed. The following week, on February 21, 2008, Trane filed a motion to dismiss on grounds that the circuit court lacked subject matter jurisdiction and that the statute of limitations had expired. Trane purported that it had recently discovered that Mary was not the duly-appointed executrix of Lonnie's estate at the time she filed the 2005 amended complaint. Trane alleged that, at the time Mary filed the 2005 amended complaint, she had not taken the oath of office requied by law, that letters testamentary had not been issued, that she had in fact abandoned the probate of Lonnie's will, and that the chancery clerk had dismissed Lonnie's estate matter due to Mary's failure to prosecute. All Appellants joined Trane's motion to dismiss.
¶12. A few months later, on July 18, 2008, Garlock filed its second motion for summary judgment. Garlock argued once again that the initial, 2002 complaint was a nullity, and that the statute of imitations had expired. It also asserted that Mary lacked standing to file the 2005 amended complaint because she was not executrix at the time. Mary responded by filing a motion in limine and motion to strike. She argued that Garlock's second motion for summary judgment was a mere repetition of issues previously considered and disposed of by the circuit court. She moved further to strike portions of any filings that simply rehashed issues already decided.
¶13. Following a hearing on August 21, 2008, the circuit court denied Trane's and Garlock's motions. It also denied Mary's motion to strike. Thereafter, various Appellants filed three separate petitions for interlocutory appeal. We granted those petitions, stayed the proceedings, and consolidated their appeals.
¶14. Denials of summary judgment are reviewed de novo. Burley v. Douglas, 26 So. 3d 1013, 1016 (Miss. 2009) (citing Monsanto v. Hall, 912 So. 2d 134, 136 (Miss. 2005)). Summary judgment is appropriate only where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The evidence must be considered...
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