Danny R. Anderson v. R & D Foods, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00746-COA
DANNY R. ANDERSON AND JUDY B. ANDERSON,
AS THE PERSONAL REPRESENTATIVES OF HOLLY
MICHELLE ANDERSON, DECEASED; DANNY R.
ANDERSON AND JUDY B. ANDERSON,
INDIVIDUALLY AND AS THE ADULT NEXT
FRIENDS OF JOEY ANDERSON, A MINOR; AND
HEATHER ANDERSON PEARSON
APPELLANTS
v.
R & D FOODS, INC., A MISSISSIPPI
CORPORATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
3/12/2003
HON. MICHAEL R. EUBANKS
LAMAR COUNTY CIRCUIT COURT
RAY T. PRICE
JOHN D. SMALLWOOD
ROBERT ATKINSON
MARGARET MCARTHUR
CIVIL - WRONGFUL DEATH
THE AMENDED COMPLAINT WAS DISMISSED
AS UNTIMELY.
AFFIRMED - 04/26/2005
BEFORE LEE, P.J., MYERS AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Danny R. Anderson and Judy B. Anderson commenced a wrongful death action against the estate
of Lewis Trevor Speed and other defendants for the death of their daughter. Approximately one year after
the expiration of the statute of limitations, they filed an amended complaint substituting R&D Foods, Inc.
for a fictitious party. The trial court granted R&D's motion to dismiss, and the Andersons appeal.
¶2.
The Andersons' principal issue on appeal is whether the minor's savings statute of Mississippi Code
Annotated section 15-1-59 (Rev. 2003) tolled the general statute of limitations which otherwise barred the
Andersons' wrongful death suit against R&D. Pursuant to Curry v. Turner, 832 So. 2d 508 (Miss. 2002),
we find that the minor's savings statute did not toll the limitations period and, therefore, the trial court
properly dismissed the Andersons' amended complaint against R&D. We find the Andersons' other
appellate issues to be without merit.
FACTS
¶3.
On October 21, 1999, the Andersons filed a complaint in the Circuit Court of Lamar County for
the wrongful death of their daughter, Holly Michelle Anderson. The Andersons proceeded as the personal
representatives of Holly Anderson and as the next friends of their other children, Joey Anderson and
Heather Anderson Pearson. The complaint alleged that, on November 26, 1996, Holly was a passenger
in a vehicle driven by Lewis Trevor Speed. Speed was intoxicated and lost control of the vehicle, which
left the roadway and crashed, killing both Holly and Speed. The Andersons asserted negligence claims
against Speed's estate, his mother, and his grandparents. The Andersons also asserted negligence claims
against JFM, Inc. for selling Speed, a minor, the alcoholic beverages which he had consumed before
driving. The complaint named John Does Numbers One through Five as potential additional defendants
whose identities might be learned during the course of discovery. On November 24, 1999, the Andersons
filed an amended complaint against the same defendants.
¶4.
On November 3, 2000, the Andersons moved to file a second amended complaint substituting
R&D for John Doe Number One pursuant to Mississippi Rule of Civil Procedure 9(h). The Andersons
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averred that, during discovery, they learned that R&D's convenience store negligently sold Speed some
of the alcoholic beverages that he had consumed before the deadly car accident. The trial court granted
the motion to amend and the Andersons filed the second amended complaint on November 15, 2000.
R&D moved to dismiss the complaint against it as time-barred under the three year statute of limitations
applicable to negligence actions. Miss. Code Ann. § 15-1-49 (Rev. 2003).
¶5.
At various times, Speed's estate, his mother, and his grandparents were dismissed after settlement.
JFM, Inc. was also dismissed. On August 14, 2001, the trial court denied R&D's motion to dismiss. The
court held that the complaint against R&D did not relate back to the date of the original complaint because
the Andersons had failed to exercise reasonable diligence in ascertaining R&D's identity and could have
identified R&D without resorting to formal discovery procedures. See Doe v. Miss. Blood Servs., Inc.
704 So. 2d 1016, 1019 (¶¶13-14) (Miss. 1997). However, the court found that the amended complaint
was not untimely because, despite the fact that a wrongful death suit had been filed on the minors' behalf,
the minor's savings statute tolled the three year statute of limitations until the youngest minor wrongful death
beneficiary reached the age of majority. R&D petitioned for an interlocutory appeal, which was denied
by the supreme court.
¶6.
On December 12, 2002, the supreme court decided the case of Curry v. Turner, 832 So. 2d 508,
517 (¶21) (Miss. 2002), which held that the minor's savings statute did not toll the statute of limitations
because the mother of the minor wrongful death beneficiaries could have and did commence a wrongful
death action on their behalf. On January 31, 2003, R&D filed a motion for the trial court to reconsider its
earlier ruling based on Curry. The court granted the motion and entered a final judgment dismissing R&D
with prejudice. The Andersons appeal.
STANDARD OF REVIEW
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¶7.
The lower court's grant of a motion to dismiss based upon the statute of limitations presents a
question of law to which this Court applies de novo review. Jackpot Miss. Riverboat, Inc. v. Smith, 874
So. 2d 959, 960 (¶4) (Miss. 2004).
LAW AND ANALYSIS
¶8.
We have restructured the Andersons' appellate arguments. The Andersons' primary argument is
that the amended complaint was timely because the prescriptive period was tolled until the minor
beneficiaries, Joey Anderson and Heather Anderson Pearson, attained the age of majority. The Andersons
do not attack the lower court's finding that their substitution of R&D did not relate back to the original
complaint under Mississippi Rules of Civil Procedure 9(h) and 15 (c)(2). Therefore, if the prescriptive
period was not tolled by the minor's savings statute, we must affirm the dismissal of the Anderson's
amended complaint against R&D as untimely.
¶9.
A cause of action for wrongful death accrues on the date of death. Gentry v. Wallace, 606 So.
2d 1117, 1119 (Miss. 1992). Since the Andersons asserted negligence claims, they had three years from
the date of Holly's death in which to file suit. Miss. Code Ann. § 15-1-49 (Rev. 2003). The Andersons
filed their amended complaint against R&D approximately one year after the expiration of the three year
period. The Andersons argue that the amendment was timely because the limitations period was tolled by
the minor's savings statute. That statute provides, in pertinent part:
If any person entitled to bring any of the personal actions mentioned shall, at the time at
which the cause of action accrued, be under the disability of infancy or unsoundness of
mind, he may bring the actions within the times in this chapter respectively limited, after his
disability shall be removed as provided by law.
Miss. Code Ann. § 15-1-59 (Rev. 2003). The disability of infancy is removed when a person attains the
age of twenty-one years. Lawler v. Gov't Employees' Ins. Co., 569 So. 2d 1151, 1153 (Miss. 1990).
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The savings statute applies to actions for wrongful death. Thiroux ex rel. Cruz v. Austin ex rel.
Arceneaux, 749 So. 2d 1040, 1041 (¶3) (Miss. 1999).
¶10.
Thiroux reversed the court's earlier holding in Arender v. Smith County Hospital, 431 So. 2d
491, 493 (Miss. 1983). Arender held that the savings statute did not apply to wrongful death cases.
Arender, 431 So. 2d at 493. The Thiroux court found that Arender had erroneously relied upon an
antiquated version of the wrongful death statute for its holding and, consequently, had reached the wrong
result. Thiroux, 749 So. 2d at 1041 (¶3). Thiroux established that the savings statute definitely applies
to wrongful death cases. Id. However, Thiroux failed to address dicta in Arender in which the court
assumed arguendo that the minor's savings statute applied to wrongful death cases and stated, "there being
but a single cause of action [for wrongful death], such savings would operate in [the minors'] favor only
when there was no person in esse . . . who had the right to file suit during the [limitations period]."
Arender, 431 So. 2d at 493.
¶11.
The Arender dicta recognized that, under the wrongful death statute, there can be but one suit for
the same death. Id.; Miss. Code Ann. 11-7-13 (Rev. 2004). The statute reads, in part:
The action for . . . damages [for the death] may be brought in the name of the
personal representative of the deceased person or unborn quick child for the benefit of all
persons entitled under the law to recover, or by widow for the death of her husband, or
by the husband for the death of the wife, or by the parent for the death of a child or unborn
quick child, or in the name of a child, or in the name of a child for the death of a parent, or
by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister
for the death of a sister, or by a brother for the death of a brother, or all persons interested
may join in the suit, and there shall be but one (1) suit for the same death which shall ensue
for the benefit of all parties concerned, but the determination of such suit shall not bar
another action unless it be decided on its merits.
Id. The statute provides for the recovery of all the wrongful death beneficiaries in a single lawsuit. Id.
Thus, when any person statutorily entitled to do so files a wrongful death action, that action "ensue[s] for
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the benefit" of all parties entitled to recover for the death. Id. Under this scheme, though a minor
beneficiary would be disabled from instigating the "one suit" due to infancy, a personal representative of the
deceased or an adult beneficiary could recover on behalf of the minor during the minor's disability.
Therefore, the Arender court reasoned, the existence of a personal representative or adult beneficiary
qualified to sue on behalf of all would commence the running of the statute of limitations for the "one suit,"
even as to minor beneficiaries. Arender, 431 So. 2d at 493.
¶12.
In its order denying R&D's motion to dismiss, the trial court found that, after Thiroux, the viability
of Arender's reasoning was in doubt. The court observed that, while Thiroux held that the minor's savings
statute applied to a wrongful death action, the Thiroux court had not commented on whether the savings
statute would toll the statute of limitations even when an adult existed who could sue on behalf of interested
minors. The court found that, because Thiroux held that the minor's savings statute applied to wrongful
death suits, the savings statute tolled the statute of limitations as to the Andersons' minor children. The court
further found that, due to the "one suit" requirement, the limitations period would not run against the entire
Anderson action until three years after the youngest minor beneficiary reached the age of majority.
Therefore, the court held, the Andersons' substitution of R&D Foods was timely.
¶13.
Months after the trial court's order, the supreme court considered the issue and reached a different
result upon similar facts. Curry, 832 So. 2d at 517 (¶21). In Curry, the decedent's wife and the
administratrix of his estate commenced a wrongful death suit on behalf of the estate, herself and her minor
children. Id. at 509-10 (¶2). After the statute of limitations had run, the trial court granted Curry the right
to amend her complaint to name additional defendants. Id. Later, the court dismissed the new defendants
with prejudice due to the running of the statute of limitations. Id. The supreme court held that Curry's
amended complaint did not relate back to the date of the original filing. Id. at 514 (¶13). Curry argued
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that the amendment was timely when made because the minor's savings statute tolled the running of the
statute of limitations until the minor beneficiaries reached the age of majority. Id. at 514 (¶15).
¶14.
The court observed that the wrongful death statute clearly provides for one suit for the benefit of
all entitled to recover for the death. Id. at (¶20). The court found the wrongful death statute and the
minor's savings statute to be "at irreconcilable odds" withone another when there existed someone qualified
under the wrongful death statute to bring suit during the applicable limitations period. Id. at (¶21). The
court reasoned that it would be inconsistent with the "one suit" requirement for a qualified person to sue for
the death within the limitations period and for the minor beneficiaries to bring a second suit upon reaching
majority. Id. at 516 (¶19). Moreover, under the wrongful death statute, a personal representative or other
qualified beneficiary may assert the minors' rights of recovery during the minors' disability. Id. at (¶20).
The existence of a person qualified to sue on behalf of all negates the need for a savings. Id. at (¶21).
Since Curry not only was a qualified person in esse but actually had commenced a wrongful death suit on
behalf of her children, the court held that the minor's savings statute did not toll the running of the statute
of limitations as to Curry's lawsuit. Id.
¶15.
Applying Curry to the instant case, the trial court held that the statute of limitations had not been
tolled as to the Andersons' lawsuit and, therefore, the Andersons' substitution of R&D was untimely. This
was certainly the correct result. The Andersons were qualified to sue on behalf of their minor children and
other wrongful death beneficiaries during the limitations period and, therefore, the statute of limitations was
not tolled. In fact, as in Curry, the Andersons actually asserted the minors' rights to recovery by filing their
wrongful death suit within the limitations period. Since the Andersons' amended complaint against R&D
was filed after the running of the three year limitations period and did not relate back to the original
complaint, the Andersons' substitution of R&D was untimely.
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¶16.
We now address the Andersons' several untenable arguments that the trial court's grant of R&D's
motion to reconsider was procedurally improper. Most of these arguments are efforts to persuade this
Court to reinstate the trial court's original order refusing to dismiss R&D. Firstly, the Andersons argue that
the trial court erroneously granted R&D's motion to reconsider because the motion, as a procedural
vehicle, either (1) was not provided for by the Mississippi Rules of Civil Procedure, or (2) was an untimely
Rule 59 (e) motion to alter or amend the judgment. In fact, R&D's motion to reconsider was an application
to the court for an order pursuant to Rule 7(b)(1). This issue is without merit.
¶17.
Secondly, the Andersons complain that the trial court erroneously allowed R&D to delay trial of
this matter to the Andersons' prejudice by granting R&D's motion for certification of an interlocutory
appeal. A motion for certification of an interlocutory appeal is available to litigants under the Mississippi
Rules of Appellate Procedure. M.R.A.P. 5(a). The trial court stayed the proceedings against R&D
pending the outcome of the appeal. M.R.A.P. 5(e). The Andersons argue that they were prejudiced by
the delay because, in the interim, the supreme court handed down Curry. A favorable legal determination
is the object of every petition for an interlocutory appeal. The Andersons cannot viably argue that the
possibility that the law could change during the pendency of a petition for an interlocutory appeal should
bar the use of the interlocutory appeal petition as a mechanismfor seeking relief. This issue is without merit.
¶18.
Thirdly, the Andersons argue that the supreme court's denial of R&D's petition for an interlocutory
appeal rendered the trial court's original order "the law of the case." According to the law of the case
doctrine, "whatever is once established as the controlling legal rule of decision, between the same parties
in the same case, continues to be the law of the case, as long as there is a similarity of facts." Mauck v.
Columbus Hotel Co., 741 So. 2d 259, 266-67 (¶22) (Miss. 1999). Thus, a mandate issued by an
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appellate court binds the trial court on remand, unless an exception to the doctrine applies. Pub.
Employees' Ret. Sys. v. Freeman, 868 So. 2d 327, 330 (¶10) (Miss. 2004). The Andersons contend
that the supreme court's refusal to hear R&D's interlocutory appeal was a legal determination that the trial
court's resolution of the tolling issue was correct. In fact, an appellate court's refusal to entertain an appeal
has no precedential effect whatsoever. 20 Am. Jur. 2d Courts § 152 (1995). Therefore, the supreme
court's denial of R&D's petition for an interlocutory appeal did not solidify the trial court's original decision
as the law of the case.
¶19.
Next, the Andersons argue that the trial court erroneously applied the Curry decision retroactively.
Actually, the trial court's application of the rule announced in Curry to the Andersons' pending case against
R&D was proper. "[N]ewly enunciated rules of law are applied retroactively to cases that are pending
trial or that are on appeal and not final at the time of the enunciation." Thompson v. City of Vickburg, 813
So. 2d 717, 721 (¶16) (Miss. 2002). This issue is without merit.
¶20.
Finally, the Andersons argue that the trial court's original order was res judicata and collaterally
estopped R&D from relitigating the tolling issue in the motion to reconsider. A final judgment on the merits
is an elementary requirement for the application of the doctrines of res judicata and collateral estoppel.
Vaughn v. Monticello Ins. Co., 838 So. 2d 983, 986 (¶16) (Miss. Ct. App. 2001). The trial court's
original order was interlocutory and left the Andersons' case against R&D pending in the trial court. See
id. at 720 (¶8). It was not a final appealable judgment. M.R.C.P. 54 (a). These issues are without merit.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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