Lundquist v. Todd Const., LLC


<- Return to Search Results


Docket Number: 2010-CA-00597-COA

Court of Appeals: Opinion Link
Opinion Date: 12-06-2011
Opinion Author: Barnes, J.
Holding: Dismissed.

Additional Case Information: Topic: Personal injury - Interlocutory order - M.R.C.P. 54(b)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton, Maxwell and Russell, JJ.
Non Participating Judge(s): Myers, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 03-08-2010
Appealed from: Monroe County Circuit Court
Judge: Thomas J. Gardner
Disposition: DISMISSED CASE AGAINST TODD CONSTRUCTION LLC FOR FAILURE TO SERVE PROCESS TIMELY
Case Number: 06-233-GM

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Troy Lundquist and Jennifer Lundquist




T.K. MOFFETT



 
  • Appellant #1 Brief

  • Appellee: Todd Construction, LLC BO R. BROCK  

    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: Personal injury - Interlocutory order - M.R.C.P. 54(b)

    Summary of the Facts: Troy Lundquist and his wife at the time, Jennifer Lundquist, filed suit against Ronald Denley; Chris Todd, individually, and d/b/a Mississippi Gravel Sales, LLC; and “John Doe Company, jointly and individually” alleging Denley was negligent, after Denley’s vehicle collided with Troy’s motorcycle. The Lundquists also claimed that Denley was in the scope of his employment with Todd individually and Mississippi Gravel at the time of the accident and that respondeat superior applied. John Doe Company was believed to be another of Todd’s companies where Denley was also employed. Denley’s and Todd’s depositions conflicted about which business entity Denley was working for at the time of the accident, if any, and whether Denley was an employee or an independent contractor. Process was served on Denley on August 12, 2006. Process was subsequently served on Todd, individually, and on Mississippi Gravel, with Todd as its registered agent, on August 16, 2006. In September 2006, an answer was filed for both Todd, individually, and Mississippi Gravel. In May 2007, the Lundquists filed a motion for summary judgment, arguing negligence was inferred under the doctrine of res ipsa loquitur. The trial court granted Todd’s motion to hold the summary-judgment motion in abeyance, and further discovery ensued. In May 2008, the Lundquists moved to amend their complaint and to add Todd Construction as a party. After the trial court granted the motion, on November 3, 2008, the Lundquists filed an amended complaint substituting Todd Construction for the fictitious defendant “John Doe Company.” In September 2009, Todd Construction filed a motion to dismiss, claiming insufficient service of process under M.R.C.P. 4(h) and 12(b)(5). In October 2009, Todd responded to the Lundquists’ motion for summary judgment and filed a counter-motion for summary judgment. Also, on October 26, 2009, the Lundquists issued a summons for the first time to Todd Construction. The court granted Todd Construction’s motion to dismiss, finding that no good cause existed for the Lundquists’ failure to serve Todd Construction timely, and issued an order to that effect on March 8, 2010. The trial court also stated, with regard to the Lundquists’ motion for summary judgment, that the issue of whether or not Denley was an employee acting within the course and scope of his employment during the accident, and for which entity, was not yet resolved. While the trial judge stated this issue should probably be submitted to a jury, he decided to consider it further and did not make a ruling on the summary-judgment motions. On April 7, 2010, the Lundquists appealed the trial court’s March 8, 2010 order dismissing Todd Construction.

    Summary of Opinion Analysis: Without the entry of an M.R.C.P. 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory. Here, the Lundquists’ amended complaint named multiple defendants: Denley, Todd individually and d/b/a Mississippi Gravel, and Todd Construction. When the trial court dismissed Todd Construction from the action, the order did not terminate the action with regard to the remaining Defendants Denley, Todd, and Mississippi Gravel. Further, the trial court did not rule upon the Lundquists’ motion for summary judgment or Todd’s counter-motion for summary judgment before the March 8, 2010 order to dismiss Todd Construction was entered. Nor was this order certified as a final judgment under Rule 54(b); thus, the order is interlocutory and not appealable.


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