Welch Roofing & Constr., Inc. v. Farina, et al.
| Docket Number: | 2011-CA-01201-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-16-2012 Opinion Author: Carlton, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Contract - Service of process - M.R.C.P. 4(h) - Real party in interest - M.R.C.P. 17(a) - Statute of limitations - Notice pleading - M.R.C.P. 8(a) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 07-28-2011 Appealed from: Lincoln County Circuit Court Judge: David H. Strong Disposition: MOTION TO DISMISS GRANTED Case Number: 2007-215-LS |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Welch Roofing & Construction, Inc. |
IRVING CONRAD MORD II |
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| Appellee: | Mary Joann Farina, Joseph Farina, M.D., and Railroad Investments, LP | WAYNE SMITH | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Service of process - M.R.C.P. 4(h) - Real party in interest - M.R.C.P. 17(a) - Statute of limitations - Notice pleading - M.R.C.P. 8(a) |
| Summary of the Facts: | Welch Roofing & Construction Inc. filed a complaint styled “Complaint to Enforce Construction Lien” against Mary Joann Farina (Joann) and Dr. Joseph Farina. Welch later filed an “Amended Complaint to Enforce Construction Lien.” The amended complaint repeated the allegations of the first complaint and added Railroad Investments as a defendant. Railroad Investments filed several motions, the last of which was joined by Joann and Joseph, requesting a dismissal of the case for failure to serve process upon Railroad Investments within 120 days after the filing of the amended complaint. The court granted the motion to dismiss, and Welch appeals. |
| Summary of Opinion Analysis: | Welch does not dispute that more than 120 days passed between the filing of the amended complaint on August 18, 2008, and service of process upon Railroad Investments on July 19, 2010, but argues that the court erred in dismissing the complaint as to all defendants. Pursuant to M.R.C.P. 4(h), a complaint will be dismissed only if the plaintiff cannot show good cause for failing to serve process within 120 days. To establish good cause, the plaintiff must show at least as much as would be required to show excusable neglect. Here, there was no error in the court’s dismissal. The original complaint failed to name Railroad Investments, which was the real party in interest under M.R.C.P. 17(a). The amended complaint was time-barred pursuant to section 85-7-141, because the amended complaint was not served on Railroad Investments until after the statute of limitations had expired, and the second complaint failed to relate back to the filing of the initial complaint. However, the court erred by dismissing Welch’s breach-of-contract claims against Joann and Joseph. Welch’s breach-of-contract claims in the original complaint named the proper real parties in interest, Joann and Joseph, since they were the alleged breaching parties to the contract. Welch acted in accordance with the notice pleading requirements found in M.R.C.P. 8(a), and timely served process on Joann and Joseph in accordance with Rule 4(h). |
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