Smith v. DIMA Homes, Inc.


<- Return to Search Results


Docket Number: 2010-CA-00701-COA
Linked Case(s): 2010-CA-00701-COA

Court of Appeals: Opinion Link
Opinion Date: 08-23-2011
Opinion Author: Roberts, J.
Holding: Reversed and remanded

Additional Case Information: Topic: Contract - Negligence - Statute of limitations - Section 15-1-49(1) - M.R.C.P. 6(a)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Carlton, Maxwell and Russell, JJ.
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 04-23-2010
Appealed from: Pearl River County Circuit Court
Judge: R. I. Prichard, III
Disposition: DISMISSED SUIT AS BARRED BY STATUTE OF LIMITATIONS
Case Number: 2008-0849-P

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Troy Smith




JACK PARSONS DAWN SMITH TADD PARSONS



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: DIMA Homes, Inc. JAMES W. GLADDEN JR. JERRY A. EVANS  

    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.

    Topic: Contract - Negligence - Statute of limitations - Section 15-1-49(1) - M.R.C.P. 6(a)

    Summary of the Facts: Troy Smith purchased a home from DiMa Homes, Incorporated on December 12, 2005. On December 12, 2008, Smith brought suit against DiMa seeking damages on the basis that his home was negligently built. DiMa filed a motion to dismiss or, in the alternative, a motion for summary judgment, arguing that the statute of limitations had run on Smith’s negligence claim. The circuit judge entered an order granting DiMa summary judgment and a final judgment of dismissal. Smith appeals.

    Summary of Opinion Analysis: Smith brought his claim under the theory of negligence. Smith’s complaint for negligence was subject to the general three-year statute-of-limitations found in section 15-1-49(1). For purposes of a statute of limitations, a cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. For the right to sue for negligence to become vested, all elements of the tort must be present. The elements of negligence are duty, breach, causation, and damages. In this case, Smith suffered no damages until he became the owner and took possession of the house on December 12, 2005. Once this occurred, his right to sue under the theory of negligence vested, thus commencing the running of the statute of limitations. M.R.C.P. 6(a) states, in pertinent part, that in computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Since Smith’s claim accrued on December 12, 2005, his statute of limitations began on December 13, 2005. Thus, Smith had three years from December 13, 2005, to file his complaint under the theory of negligence. Smith filed his complaint on December 12, 2008, which was the very last day to file his complaint. It appears that the circuit judge simply miscalculated the days. Thus, the granting of summary judgment in favor of DiMa was in error.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court