Barbara Rigdon v. Mississippi Farm Bureau Federation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00777-COA
BARBARA RIGDON
APPELLANT
v.
MISSISSIPPI FARM BUREAU FEDERATION,
LAUDERDALE COUNTY FARM BUREAU
(A.A.L.), RURAL INSURANCE AGENCY, INC.,
SOUTHERN FARM BUREAU LIFE INSURANCE
COMPANY, SOUTHERN FARM BUREAU
CASUALTY COMPANY, MISSISSIPPI FARM
BUREAU CASUALTY INSURANCE COMPANY
AND TOMMY ALLEN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
2/12/2008
HON. BOBBY BURT DELAUGHTER
HINDS COUNTY CIRCUIT COURT
MARK THOMAS MCLEOD
MITCHELL HARRY TYNER
DALE GIBSON RUSSELL
SAM E. SCOTT
KEN R. ADCOCK
ELLEN PATTON ROBB
CIVIL - CONTRACT
MOTION TO DISMISS BASED UPON
STATUTE OF LIMITATIONS GRANTED
APPEAL DISMISSED – 11/3/2009
CONSOLIDATED WITH
NO. 2008-CA-00780-COA
BARBARA RIGDON
v.
APPELLANT
MISSISSIPPI FARM BUREAU FEDERATION,
LAUDERDALE COUNTY FARM BUREAU
(A.A.L.), RURAL INSURANCE AGENCY, INC.,
SOUTHERN FARM BUREAU LIFE INSURANCE
COMPANY, SOUTHERN FARM BUREAU
CASUALTY COMPANY, MISSISSIPPI FARM
BUREAU CASUALTY INSURANCE COMPANY
AND TOMMY ALLEN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
2/12/2008
HON. BOBBY BURT DELAUGHTER
HINDS COUNTY CIRCUIT COURT
MARK THOMAS MCLEOD
MITCHELL HARRY TYNER
DALE GIBSON RUSSELL
SAM E. SCOTT
KEN R. ADCOCK
ELLEN PATTON ROBB
CIVIL - CONTRACT
MOTION TO DISMISS BASED UPON
STATUTE OF LIMITATIONS GRANTED
APPEAL DISMISSED – 11/3/2009
BEFORE KING, C.J., BARNES AND CARLTON, JJ.
BARNES, J., FOR THE COURT:
¶1.
Barbara Rigdon appeals the Hinds County Circuit Court’s dismissal of her complaint
based upon the statute of limitations. Finding Rigdon’s notice of appeal was untimely filed,
we have no alternative but to dismiss the appeal for lack of jurisdiction.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Rigdon was an independent contract insurance agent for the appellees, Mississippi
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Farm Bureau Federation, Lauderdale County Farm Bureau, Rural Insurance Agency, Inc.,
Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance
Company, Mississippi Farm Bureau Casualty Insurance Company, and Tommy Allen
(hereinafter collectively referred to as “the Appellees”). Each insurance company maintained
its own contract with Rigdon, and all contracts had been signed and were in effect by March
8, 1991. On September 3, 1996, Rigdon terminated her employment as an independent
contractor with each of the companies; her termination was effective as of September 13,
1996.
¶3.
Rigdon, along with four other plaintiffs, filed a complaint against the Appellees on
August 30, 1999, in the Circuit Court of Claiborne County. The complaint alleged breach
of contract, tortious breach of contract, fraud, conspiracy, intentional misrepresentation,
negligent misrepresentation, intentional infliction of emotional distress, and negligent
infliction of emotional distress. Ultimately, the cases were severed by the Mississippi
Supreme Court,1 and the complaint was dismissed without prejudice by the Claiborne County
Circuit Court. Rigdon re-filed her complaint in the proper venue of the Second Judicial
District of Hinds County Circuit Court on March 2, 2007. However, service of process was
never effected upon the Appellees related to this action.
¶4.
On August 21, 2007, the Appellees filed a motion to dismiss Rigdon’s March 2, 2007,
complaint under Mississippi Rule of Civil Procedure 12(b)(6) citing statute of limitations as
a defense. In the motion, the Appellees claimed that the statute of limitations began to run
on September 14, 1996, the day after Rigdon’s termination was effective. Further, they noted
1
Miss. Farm Bureau Fed’n v. Roberts, 927 So. 2d 739 (Miss. 2006).
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that they had never been properly served with process following Rigdon’s filing of this
complaint in Hinds County Circuit Court. On August 27, 2007, Rigdon filed a second
complaint in the Hinds County Circuit Court based upon the same set of facts and claims
included in the first complaint.2 Service of process for the second complaint was effectuated
upon the Appellees on November 16, 2007, which was within 120 days of the filing of the
second complaint pursuant to Mississippi Rule of Civil Procedure 4(h). However, according
to the Appellees, the statute of limitations expired on July 17, 2007.3 The Appellees filed a
second motion to dismiss on October 9, 2007, again citing statute of limitations as a defense.4
The circuit court entered a “Memorandum Opinion and Order” in both cases on February 12,
2008, granting the Appellees’ motions to dismiss. The document recited that the court had
“considered all filings and submissions of the parties” and found that Rigdon was statutorily
barred from bringing either action. The last two sentences of the Memorandum Opinion and
Order stated:
2
Rigdon’s March 2, 2007, complaint merely contained a copy of her claims from the
dismissed complaint filed in Claiborne County. The August 25, 2007, complaint, however,
contained a new factually-detailed history outlining her claims of direct breach of contract
and misrepresentation.
3
At the time Rigdon filed her March 2, 2007, complaint, fifteen days remained on
the three-year statute of limitations. Although the statute of limitations was tolled for 120
days under Rule 4(h), it resumed at the end of that period, on July 2, 2007. See Parmley v.
Pringle, 976 So. 2d 422, 424 (¶¶8, 9) (Miss. Ct. App. 2008) (the filing of a complaint tolls
the statute of limitations for 120 days, but if the complainant “fails to serve process on the
defendant within that 120-day period,” the statute of limitation automatically resumes “when
that period expires”).
4
Rigdon filed a motion opposing the motion to dismiss on November 16, 2007,
claiming that the statute of limitations was tolled due to fraudulent concealment on the part
of the Appellees. A hearing on the motions was held on November 16, 2007. The Appellees
then filed a rebuttal to Rigdon’s motion on December 4, 2007.
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IT IS THEREFORE, ORDERED AND ADJUDGED, that defendants’
motion to dismiss be, and the same is hereby, granted.
SO ORDERED AND ADJUDGED, this day the 12th day of February,
2008.
The order was filed with the circuit court clerk the following day on February 13, 2008.
Rigdon did not file her notice of appeal until May 5, 2008.
JURISDICTION
¶5.
The Appellees have filed a motion to dismiss Rigdon’s appeal, citing her failure to file
a timely notice of appeal. Under Mississippi Rule of Appellate Procedure 4(a), a notice of
appeal must be filed with the clerk of the trial court within thirty days after entry of the
judgment or order being appealed. This “time requirement is jurisdictional and will be
strictly enforced.” Westbrook v. Miss. Employment Sec. Comm’n, 910 So. 2d 1135, 1138
(¶6) (Miss. Ct. App. 2005) (citing Bank of Edwards v. Cassity Auto Sales, Inc., 599 So. 2d
579, 582 (Miss. 1992)).
¶6.
Rigdon does not dispute that her notice of appeal, which was filed almost three
months after the entry of the court’s order, was untimely filed. Rather, she argues that the
circuit court’s order was not a final judgment which expressly dismissed the claims with
prejudice under Mississippi Rule of Civil Procedure 54(b); therefore, she claims that her
notice of appeal is not procedurally deficient. See Wiggins v. Perry, 989 So. 2d 419, 431
(¶31) (Miss. Ct. App. 2008) (“a party may only appeal a final judgment”). Accordingly,
Rigdon requests that this Court, in order to promote judicial economy, direct the circuit court
to enter a final judgment of dismissal so that her appeal may proceed on its merits. See
M.R.A.P. 4(b) (a notice of appeal filed before the entry of a judgment or order “shall be
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treated as filed after such entry and on the day of the entry”).
¶7.
The Mississippi Supreme Court has directed that “[a]n appeal . . . may be taken as a
matter of right only after the trial court disposes of all the claims against all defendants.”
Calvert v. Griggs, 992 So. 2d 627, 631 (¶10) (Miss. 2008). Mississippi Rule of Civil
Procedure 54(b) states that:
When more than one claim for relief is presented in an action, whether as a
claim, counter-claim, cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only upon an expressed
determination that there is no just reason for delay and upon an expressed
direction for the entry of the judgment. In the absence of such determination
and direction, any order or other form of decision, however designated which
adjudicates fewer than all of the claims or the rights and liabilities of fewer
than all the parties shall not terminate the action as to any of the claims or
parties and the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.
(Emphasis added). Absent a certification under this rule by the circuit court, “any order in
a multiple party or multiple claim action, even if it appears to adjudicate a separable portion
of the controversy, is interlocutory.” Id. cmt. Consequently, a judgment will only be
considered final and appealable if it “‘adjudicates the merits of the controversy which settles
all the issues as to all the parties’ and requires no further action by the lower court.” Walters
v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (citation omitted).
¶8.
Rigdon also points to the fact that the Memorandum Opinion and Order by the circuit
court did not bear the title of “Judgment” as required by Mississippi Rule of Civil Procedure
58. The rule states, in pertinent part, that:
Every judgment shall be set forth on a separate document which bears the title
of “Judgment.” However, a judgment which fully adjudicates the claim as to
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all parties and which had been entered as provided in [Mississippi Rule of
Civil Procedure] 79(a) shall, in the absence of prejudice to a party, have the
force and finality of a judgment even if it is not properly titled.
M.R.C.P. 58.5 Consequently, the “failure to properly title a judgment which fully adjudicates
all claims in a case as to all parties will not be deemed to prevent that judgment from being
fully effective so long as it has been entered as required in [Mississippi Rule of Civil
Procedure] 79(a).” 6 Id. cmt.
¶9.
While the circuit court’s Memorandum Opinion and Order was not titled as a
“Judgment,” it clearly used words of finality and adjudication. The order concluded that
Rigdon could not “maintain this cause of action” against the Appellees and twice included
the phrase “ordered and adjudged.” The order further stated that the defendants’ motion “is
hereby, granted.” A judgment is final and appealable if there is a “writing which is ‘the final
determination of an action and thus has the effect of terminating the litigation,’” that is
signed by the court and filed and entered by the clerk pursuant to Rule 58. Roberts, 653 So.
2d at 252. We find that the circuit court’s order was clearly a final judgment as it adjudicated
all claims against all defendants and “granted” the defendants’ motion to dismiss.
¶10.
The comments to Rule 58 provide, however, that if a notice of appeal is filed untimely
5
On May 27, 2004, Rule 58 was amended to include the language addressing the
finality of an improperly-titled judgment. The comments note that the amendment
effectively overrules a line of Mississippi Supreme Court cases – Thompson v. City of
Vicksburg, 813 So. 2d 717 (Miss. 2002), Mullen v. Green Tree Financial Corp., 730 So. 2d
9 (Miss. 1998), and Roberts v. Grafe Auto Co., Inc., 653 So. 2d 250 (Miss. 1994) – “insofar
as they hold that strict compliance with the titling requirement is mandatory and prevents
finality, even in the absence of prejudice.” Id. cmt.
6
Rule 79(a) sets forth the requirements for the court clerk to maintain a general
docket in which “all appearances, orders, verdicts, and judgments shall be noted[.]”
M.R.C.P. 79(a).
7
due to “an inappropriate or misleading title of judgment, such failure may, under proper
circumstances, constitute ‘excusable neglect’ under [Mississippi Rule of Appellate
Procedure] 4(g)” M.R.C.P 58 cmt. Rule 4(g) does not, under the circumstances of this case,
assist Rigdon. That rule allows the trial court to grant an extension of time for filing a notice
of appeal if the appellant files a motion for extension within thirty days after the time for
filing the notice of appeal otherwise expires. M.R.A.P 4(g). The trial court may then grant
an extension limited to that thirty days, or to a period ending ten days after the entry of the
order granting the motion, whichever is later. Id. and cmt. “While our appellate rules allow
the trial court to extend the time for filing a notice of appeal under Rule 4(g), . . . this Court
is not so authorized.” Payne v. Magnolia Healthcare, Inc., 984 So. 2d 290, 294 (¶16) (Miss.
Ct. App. 2007). Accordingly, this Court has no authority to extend Rigdon’s time for filing
her notice of appeal. And, since Rigdon failed to file a motion with the circuit court within
the thirty-day extension period, the circuit court has no authority to do so. Rigdon’s request
that the case be remanded to the circuit court would, thus, serve no purpose.
¶11.
The circuit court’s Memorandum Opinion and Order was final and appealable as of
February 13, 2008. As Rigdon’s notice of appeal was untimely filed and she failed to file
a motion for an extension of time with the circuit court, under Mississippi Rule of Appellate
Procedure 4(g), we must dismiss the appeal for lack of jurisdiction.
¶12. THE APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR.
GRIFFIS AND MAXW ELL, JJ., NOT
PARTICIPATING.
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