Parmley v. Pringle, et al.
| Docket Number: | 2006-CA-00017-COA Linked Case(s): 2006-CA-00017-COA |
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| Court of Appeals: |
Opinion Date: 07-31-2007 Opinion Author: LEE, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Legal malpractice - Tolling of statute of limitations - M.R.C.P. 4(h) - Dismissal with prejudice Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - LEGAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 11-07-2005 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: DEFENDANTS’ MOTION TO DISMISS GRANTED Case Number: A 2401-2005-25 |
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| Party Name: | Attorney Name: | |||
| Appellant: | RON PARMLEY D/B/A A CLASSIC WRECKER |
MICHAEL G. PIAZZA |
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| Appellee: | WOODROW W. PRINGLE, III, BEN F. GALLOWAY AND OWEN AND GALLOWAY, PLLC | WOODROW W. PRINGLE |
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| Topic: | Legal malpractice - Tolling of statute of limitations - M.R.C.P. 4(h) - Dismissal with prejudice |
| Summary of the Facts: | Woodrow Pringle, III, Ben F. Galloway, and Owen & Galloway, PLLC filed a complaint on Ron Parmley’s behalf asserting various breach of contract claims. Over the course of their representation, Parmley alleged that his attorneys failed to assert certain causes of action and that they settled claims with all but one defendant without his consent. Parmley, d/b/a A Classic Wrecker, filed a complaint against Pringle, Galloway, and Owen & Galloway asserting legal malpractice. Parmley, represented by Michael Hill, incorrectly served process on Pringle, an in-state defendant, by certified mail in violation of M.R.C.P. 4(d)(4). Parmley failed to properly serve process within 120 days of filing the complaint. Thereafter, Parmley filed another complaint, asserting the same cause of action. Summons was properly served within 120 days. Pringle filed a motion to dismiss the complaints for failure to serve process and for failure to file the second complaint within the three-year statute of limitations. The court granted the motions. Parmley appeals. |
| Summary of Opinion Analysis: | Parmley argues that the second complaint was filed prior to the running of the statute of limitations and should not have been dismissed. The statute of limitations begins to run on the date the client learns, or through the exercise of reasonable diligence, should have learned of the negligence of his lawyer. The parties seem to agree that the statute of limitations began to run on May 16, 2002, the day the circuit court enforced the settlement order concerning certain defendants in the lawsuit handled by Pringle. Thus, the statute of limitations expired on May 16, 2005. Parmley filed his second complaint on June 7, 2005. Altering the three-year statute of limitations in this case, however, is the complaint filed on January 31, 2005, for which no process was served. The filing of a complaint even without service of process tolls the three-year statute of limitations for the 120-day period allowed in M.R.C.P. 4(h). The complaint was filed on January 31, 2005, 105 days before the expiration of the three years. The 120 day tolling period passed without process being correctly served. Since Parmley filed a complaint but failed to properly serve process within 120 days, the running of the statute of limitations resumed at the end of the 120 day tolling period. Therefore, the filing of the first complaint stopped the statute of limitations from running for 120 days, which ended May 31, 2005. Since process was not served as of that date, the statute of limitations began to run again and expired 105 days later on September 13, 2005. Thus, the complaint filed on June 7, 2005, was filed within the statute of limitations. In addition, the trial court erred in dismissing with prejudice the complaint filed on January 31, 2005. M.R.C.P. 4(h) dismissals should be made without prejudice, not with prejudice as the circuit court did here. |
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