King v. Amer. RV Ctr., Inc., et al.
| Docket Number: | 2002-CA-01462-COA STATEOF MISSISSIPPI | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2003 Opinion Author: IRVING, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Contract - Amended complaint - Service of process - M.R.C.P. 4(h) - Statute of limitations - Section 63-17-159(6) Judge(s) Concurring: McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 07-23-2002 Appealed from: Alcorn County Circuit Court Judge: Paul S. Funderburk Disposition: DISMISSED ACTION WITH PREJUDICE |
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| Party Name: | Attorney Name: | |||
| Appellant: | RICKY KING |
B. SEAN AKINS |
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| Appellee: | AMERICAN RV CENTERS, INC. (AMERICAN RV MISSISSIPPI, INC.), SPARTAN MOTOR CHASSIS, INC. AND FOREST RIVER, INC. | WILLIAM ALBERT BROWN WENDELL H. TRAPP ARTHUR D. SPRATLIN RICHARD M. DYE |
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| Topic: | Contract - Amended complaint - Service of process - M.R.C.P. 4(h) - Statute of limitations - Section 63-17-159(6) |
| Summary of the Facts: | Ricky King filed suit against American R.V. Centers, Inc., Spartan Motor Chassis, Inc., and Forest River, Inc. Forest River filed a motion to dismiss claiming that the original complaint filed by King was not served within 120 days and that the case should be dismissed. American and Spartan joined in the motion. The court dismissed the case without prejudice, and King appeals. |
| Summary of Opinion Analysis: | Filing a complaint tolls the applicable statute of limitation for 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitation automatically begins to run again after the expiration of the 120-day period. King filed a complaint on March 16, 2001. King failed to comply with the requirement of M.R.C.P. 4(h) that process be served within 120 days. Therefore, the statute of limitations began to run again on July 16, 2001. King filed an amended complaint on September 20, 2001. Pursuant to section 63-17-159(6), the statute of limitations would run on September 16, 2001, since King took delivery of the motor vehicle on March 16, 2000. When the statute of limitations began running again on July 16, 2001, six months remained before its expiration. Therefore, the statute would expire on January 16, 2002. King’s amended complaint was a complaint in and of itself. It is not dependent in any way for completeness on the original complaint. King did not serve or attempt to serve the initial complaint. Having failed to do so, he could have, and should have, taken a voluntary dismissal pursuant to M.R.C.P. 41(a)(1)(i) and then filed a new complaint instead of the amended complaint. Because, however, he filed a new complaint labeled amended complaint, his lawsuit is reinstated. |
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