Parmley v. Pringle
| Docket Number: | 2006-CA-00017-COA Linked Case(s): 2006-CA-00017-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-04-2008 Opinion Author: ROBERTS, J. Holding: The motion for rehearing is granted. The original opinion is withdrawn and this modified opinion is substituted in lieu of. The judgment of the Circuit Court of Harrison County is affirmed in part and reversed in part. Both the January 31, 2005, and June 7, 2005, complaints are dismissed without prejudice. |
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| Additional Case Information: |
Topic: Legal malpractice - Tolling of statute of limitations - Improper service of process - M.R.C.P. 4(h) Judge(s) Concurring: MYERS, P.J., CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ. Concur in Part, Dissent in Part 1: Lee, P.J. with separate written opinion. Concur in Part, Dissent in Part Joined By 1: King, C.J., and Irving, J.; Barnes, J., joins in part and result. Procedural History: Dismissal Nature of the Case: CIVIL - LEGAL MALPRACTICE; Motion for Rehearing |
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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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| Note: | The original opinion is withdrawn and this modified opinion is substituted in lieu of. | |
| 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 - Improper service of process - M.R.C.P. 4(h) |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. Woodrow Pringle, III, Ben 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 Pringle failed to assert certain causes of action and that Pringle 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, and while his first lawsuit was still pending, Parmley filed another complaint on June 7, 2005, asserting the same causes of action. Summons was properly served on the second complaint within 120 days. Pringle filed a motion to dismiss both complaints for failure to serve process and for failure to file the second complaint within the three-year statute of limitations. The trial court granted Pringle’s motions to dismiss both complaints with prejudice. Parmley appeals. |
| Summary of Opinion Analysis: | Parmley argues that the complaint filed on June 7, 2005, was filed prior to the running of the statute of limitations and should not have been dismissed. The parties seem to agree that the statute of limitations began to run on May 16, 2002, the day the trial court enforced the settlement order concerning certain defendants in the lawsuit handled by Pringle. Thus, the statute of limitations expired on May 16, 2005. However, the three-year statute of limitations was altered by the fact that the complaint was filed on January 31, 2005, but 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 pursuant to M.R.C.P. 4(h). 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. Notwithstanding the extension of the statute of limitations, Parmley’s initial complaint was correctly dismissed, although with the wrong classification. Failure to serve process within 120 days of the filing of a complaint, absent proof of “good cause,” shall warrant dismissal upon the court’s initiative or upon motion. However, Rule 4(h) dismissals should be made without prejudice, not with prejudice as the trial court did here. Parmley’s first complaint was still a pending and viable lawsuit when he filed his second identical complaint on June 7, 2005. The trial judge should have dismissed it without prejudice because the prior identical lawsuit was still a pending claim. Therefore, both complaints were properly dismissed, although they should have been dismissed without prejudice. |
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