Danny R. Anderson v. R & D Foods, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00233-COA
DANNY R. ANDERSON AND JUDY B. ANDERSON,
AS THE APPOINTED GUARDIANS OF JOSEPH D.
ANDERSON, A MINOR; AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF HOLLY
MICHELLE ANDERSON, DECEASED
APPELLANTS
v.
R & D FOODS, INC., A MISSISSIPPI
CORPORATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
1/26/2003
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
RAY T. PRICE
MARGARET FRANKLIN PUCKETT
MCARTHUR
SCOTT JOSEPH SCHWARTZ
ROBERT W. ATKINSON
CIVIL - WRONGFUL DEATH
DEFENDANT’S MOTION TO DISMISS
GRANTED
AFFIRMED - 10/25/2005
BEFORE LEE, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
This case presents the issue of whether the minor’s savings statute of Mississippi Code Annotated
section 15-1-59 (Rev. 2003) tolled the general statute of limitations that barred the filing of a wrongful
death suit by the Andersons against R & D Foods, Inc. Finding that we have previously decided this issue,
we affirm the Circuit Court of Forrest County’s dismissal of this action.
STATEMENT OF THE FACTS
¶2.
This case presents the same facts surrounding a wrongful death action as those before this Court
in Anderson v. R & D Foods, Inc., No. 2003-CA-00746-COA (Miss. Ct. App. Apr. 26, 2005), along
with the issue decided in that case, the application of the minor’s savings clause. Miss. Code Ann. § 15-159 (Rev. 2003). The parties in the current case and the previous case are the same except a guardianship
was established for the minor, Joey Anderson, in the current case. Additionally, the case at bar was filed
in the Circuit Court of Forrest County while the previous case was filed in the Circuit Court of Lamar
County.
¶3.
During the pendency of the Lamar County action a guardianship was established for Joey Anderson
in Forrest County to settle the minor’s claims, when a settlement was reached with all the defendants except
R & D Foods, Inc. and John Does 2-5 (collectively R & D). Danny R. Anderson and Judy B. Anderson,
Joey’s parents, were appointed as guardians. The Forrest County Chancery Court judge ordered the
Andersons to dismiss the wrongful death claim in Lamar County against R & D and refile the action in
Forrest County. The Andersons filed their motion to voluntarily dismiss their second amended complaint
in Lamar County and filed their original complaint in Forrest County the same day. Without dismissing the
case pursuant to the Andersons’ motion, the Lamar County Circuit Court dismissed the suit on R & D’s
motion to dismiss based the Mississippi Supreme Court ruling in Curry v. Turner, 832 So. 2d 508 (Miss.
2002). Our previous decision addressed the appeal from that dismissal.
¶4.
Following the filing of the Andersons’ complaint in Forrest County, R & D filed a motion to dismiss
in the Circuit Court of Forrest County, which, upon hearing, that court granted. This appeal followed
raising one issue:
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DID THE TRIAL COURT ERR IN FINDING THAT THE COMPLAINT WAS
BARRED BY THE STATUTE OF LIMITATIONS?
STANDARD OF REVIEW
¶5.
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 CONCLUSION
¶6.
In this appeal the Andersons ask this Court to consider the dicta in Curry, rule that the minor’s
savings clause applies to the case at bar, and that the dismissal of the case was improper. We do not
agree. The issue of the application of the Curry decision and the minor’s savings clause has already been
decided by this court in Anderson v. R & D Foods, Inc., No. 2003-CA-00746-COA. We addressed
the application of the minor’s savings clause to the facts of this case in our previous decision and concluded
that the case was barred by the statute of limitations. Our opinion does not change because a guardianship
has been established and the venue has changed. The Andersons in their brief admit that all the parties in
the case at bar are the same as the parties in the Lamar County case. The only differences between this
case and the previous case are the establishment of a guardianship over the minor, Joey Anderson, and a
change of venue from Lamar County to Forrest County. Finding that we have already addressed this issue
in a previous opinion, we affirm the circuit court’s dismissal.
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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