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Williams v. Clay County11/13/2003
unty asserts it is clearly barred by the SOL.
. Williams argues that the November 1999 letter constituted notice of her claim and tolled the SOL for 120 days. Thus, she argues, the SOL expired on March 1, 2001. Because her complaint was filed on January 31, 2001, Williams argues it was well within the SOL. Under her interpretation, a claimant has one year to give notice. Upon doing so, the SOL is tolled for 120 days. After the 120 days expire, the one-year SOL resumes; in effect, giving the claimant a one year and 120 day SOL.
. This precise issue is one of first impression in this Court. The Court of Appeals, however, considered the issue in Marshall v. Warren County Bd. of Supervisors, 831 So.2d 1211 (Miss. Ct. App. 2002).
. In Marshall, the undisputed facts established that the cause of action accrued on July 31, 1999. Warren County received notice of the claim on March 6, 2000. The action was filed on November 2, 2000. The trial judge followed the same interpretation offered by Clay County in the case sub judice. He reasoned that the SOL was tolled for 120 days after Warren County received notice. Thus, the tolling period began on March 6, 2000, and ended on July 4, 2000. Following July 4, Marshall had an additional 90 days in which to file her claim, and the claim was time barred after October 2, 2000.
. The Court of Appeals considered this Court's holding in Roberts v. New Albany Separate School District, 813 So. 2d 729 (Miss. 2002). In that case, Roberts' cause of action arose on August 8, 1998. On August 3, 1999, she gave the required notice, which tolled the one-year SOL for a full 120 days, after which she received the full benefit the additional ninety day period in which to file her suit. Id. at ( 7).
. The Court of Appeals found the trial judge's ruling erroneous, because it had the "effect of shortening the statute of limitations. As the Court found in Roberts, there is nothing to indicate that the Legislature intended to shorten the time frame for filing suit . . . ." Marshall at 7. Based on the facts of that case, however, the Court of Appeals affirmed. It determined that Roberts was distinguishable because, in that case, the claimant gave notice of her claim some five days before the one-year statute of limitations expired.
Therefore, the court found that when calculating the time of the tolling provision, she received the benefit of the 'full measure of the 120 period.' In this case, Marshall filed her notice of claim nearly four months prior the expiration of the one year statute of limitations. Consequently, the 120-day tolling period expired during the one year time period. Keeping in mind that in amending Mississippi Code Annotated Section 11-46-11 (Supp. 1998), the Legislature did not shorten the one year statute of limitations, we hold that the amended statute, 2002 Miss. Laws Chapter 380 (Senate Bill 3052), requires that a plaintiff received, at a minimum, ninety days to file his action following the running of the one year statue of limitations.
Marshall did not file her action until ninety-four days after the one year statute of limitations had run. The amendment to the statute requires, " fter the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice." 2002 Miss. Laws. Ch. 380 (S.B. 3052). Giving the statue plain meaning, we must find that Marshall's action is time-barred. Marshall, at ( 8 - 9) (emphasis added). Thus, although it affirmed the dismissal of the action on other grounds, the Court of Appeals agreed with the position that Williams has taken here.
.
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