Anderson v. R & D Foods, Inc.


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Docket Number: 2003-CA-00746-COA
Oral Argument: 11-09-2004
 

 

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Court of Appeals: Opinion Link
Opinion Date: 04-26-2005
Opinion Author: CHANDLER, J.
Holding: Affirmed

Additional Case Information: Topic: Wrongful death - Tolling of statute of limitations - Section 15-1-49 - Prejudice due to pending interlocutory appeal - M.R.A.P. 5(a) - Law of the case - Retroactive application of case - Res judicata - Final judgment - M.R.C.P. 54(a)
Judge(s) Concurring: KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS, BARNES AND ISHEE, JJ.,
Procedural History: Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 03-12-2003
Appealed from: Lamar County Circuit Court
Judge: Michael R. Eubanks
Disposition: THE AMENDED COMPLAINT WAS DISMISSED AS UNTIMELY.
Case Number: 99-0233

  Party Name: Attorney Name:  
Appellant: 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




RAY T. PRICE, JOHN D. SMALLWOOD



 

Appellee: R & D FOODS, INC., A MISSISSIPPI CORPORATION ROBERT ATKINSON, MARGARET MCARTHUR  

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Topic: Wrongful death - Tolling of statute of limitations - Section 15-1-49 - Prejudice due to pending interlocutory appeal - M.R.A.P. 5(a) - Law of the case - Retroactive application of case - Res judicata - Final judgment - M.R.C.P. 54(a)

Summary of the Facts: Danny Anderson and Judy Anderson commenced a wrongful death action against the estate of Lewis Speed and other defendants for the death of their daughter. The Andersons proceeded as the personal representatives of their deceased daughter and as the next friends of their other two children. 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 court granted R&D's motion to dismiss, and the Andersons appeal.

Summary of Opinion Analysis: The Andersons argue that the amended complaint was timely because the prescriptive period was tolled until the minor beneficiaries (their two living children) attained the age of majority. Pursuant to section 15-1-49, the Andersons had three years from the date of Holly's death in which to file their suit for negligence. They filed their amended complaint against R&D approximately one year after the expiration of the three year period. Pursuant to Curry v. Turner, 832 So. 2d 508 (Miss. 2002), 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. 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. The Andersons also argue that the 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, because, in the interim, the supreme court handed down Curry. 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 under M.R.A.P. 5(a) as a mechanism for seeking relief. The Andersons also 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. Because an appellate court's refusal to entertain an appeal has no precedential effect whatsoever, 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. The Andersons argue that the trial court erroneously applied the Curry decision retroactively. Newly 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. 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. The trial court's original order was interlocutory and left the Andersons' case against R&D pending in the trial court. Under M.R.C.P. 54(a), it was not a final appealable judgment.


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