Lampkin v. Thrash, et al.
| Docket Number: | 2010-CA-01897-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-28-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Statute of repose - Section 15-1-41 - Improvements to property - Amendment of complaint - M.R.C.P. 15(a) - M.R.C.P. 59(e) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Roberts, J. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-12-2010 Appealed from: Rankin County Circuit Court Judge: William E. Chapman, III Disposition: APPELLEES’ MOTION TO DISMISS GRANTED Case Number: 2010-9 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mark Lampkin and Jennifer Lampkin |
TRACY STIDHAM STEEN |
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| Appellee: | Tommy Thrash, Tommy Thrash Construction Co., Inc. and Thrash Commercial, Inc. | CLYDE X. COPELAND SAMUEL E. L. ANDERSON MATTHEW WILLIAM VANDERLOO |
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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. |
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| Topic: | Real property - Statute of repose - Section 15-1-41 - Improvements to property - Amendment of complaint - M.R.C.P. 15(a) - M.R.C.P. 59(e) |
| Summary of the Facts: | Mark and Jennifer Lampkin filed suit against Tommy Thrash Construction Co., Inc. and Tommy Thrash, individually, seeking damages for negligence and breach of warranty in the construction of their personal residence. The court granted Thrash’s motion to dismiss the Lampkins’ complaint as time-barred. The Lampkins appeal. |
| Summary of Opinion Analysis: | The Lampkins argue that the circuit court erred in granting Thrash’s motion to dismiss. The Lampkins submit that issues of fact exist concerning the improvements made to the property at issue, and they claim that these issues of fact should be submitted to a jury. Although the Lampkins concede that they did not file suit until January 15, 2010, they claim that Thrash continually represented to them that he would improve the property’s condition. Thrash maintains that the Lampkins’ claims are barred by the six-year statute of repose set forth in section 15-1-41. The Lampkins state that the improvements that Thrash made to the home over the years, and as recently as June 2008, fall squarely within the plain meaning of the statute. The Lampkins argue that the repeated performance of such improvements tolled the running of the statute of repose. Thrash performed work on the Lampkins’ property to repair problems relating to the original construction. The record shows that the Lampkins were placed on notice of these problems upon moving into the residence, yet they failed to file suit until approximately ten years later. The record supports Thrash’s assertions that all work performed on the Lampkins’ property was performed to repair problems arising from the original construction of the residence; thus, such work did not constitute an “improvement.” Accordingly, the statute of limitations began to run upon the Lampkins’ occupancy of the residence in February 2000. The Lampkins also argue that pursuant to M.R.C.P. 15(a), they should have been permitted to amend their complaint and their first amended complaint to plead thoroughly the fraud allegations that fall within the statutory provisions. A motion for reconsideration is treated as a motion to amend the judgment pursuant to M.R.C.P. 59(e) and must be filed within ten days from the entry of the judgment sought to be amended. To succeed on a Rule 59(e) motion, the movant must show an intervening change in controlling law, availability of new evidence not previously available, or need to correct a clear error of law or to prevent manifest injustice. The Lampkins’ motion for reconsideration and motion to amend failed to direct the circuit court’s attention to any new evidence not previously available in the two prior complaints, and the motions also failed to provide any errors of law or show manifest injustice. |
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