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Curry v. Turner12/12/2002
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 12/12/2002
EN BANC.
. The administratrix of a deceased's estate brought a wrongful death suit against the deceased's killer in the name of the estate and the deceased's beneficiaries in the Circuit Court of Leflore County. Her motion to amend the complaint to name the owner of the convenience store owner where the deceased died as a defendant on a theory of premises liability and various family members of the killer on a theory of negligent entrustment was granted. Later, the newly named defendants moved to dismiss suit on the grounds that the statute of limitations had run. The trial court granted the motion and entered final judgment in favor of the new defendants.
FACTS
. On December 13, 1995, Everett Curry was pumping gas into his car at Mims One Stop on U.S. Highway 82 in Carroll County, Mississippi, when two men drove up. One man, Paul Stewart, went inside to rob the store. The other, Hart Turner, waited outside. While Stewart was inside, Hart Turner forced Everett Curry to the ground and executed him by shooting him in the head. Everett Curry's wife, acting as administratrix of his estate, brought a wrongful death suit against Hart Turner and Paul Stewart on behalf of the estate and Everett Curry's beneficiaries-herself and their two minor children-approximately six months later. On December 11, 1998, almost three years after Everett Curry's death, Curry filed a motion to amend the complaint to add Money Pillai, the owner of Mims One Stop, and Trent Turner, Dent Turner, and Ladonna Turner, family members of Hart Turner, as defendants under different theories of liability. The trial court granted this motion on April 19, 1999. The circuit clerk neglected to send notice of the entry of the order to Curry, Hart Turner or Paul Stewart and the court file on this case was misplaced for some time. Seven months later, on November 19, 1999, Curry filed the amended complaint which named the new parties as defendants. Service of process was made on the new defendants within 120 days after the amended complaint was filed, and they each raised the defense that the statute of limitations had run and therefore precluded recovery. The trial court conducted a hearing on the various motions to dismiss and dismissed the new defendants with prejudice because the statute of limitations had run. Aggrieved, Curry appeals this dismissal.
DISCUSSION
I. WHETHER A MOTION FOR LEAVE TO AMEND A COMPLAINT WITH THE ATTACHED PROPOSED AMENDED COMPLAINT SERVED BEFORE THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS TOLLS THE LIMITATIONS PERIOD WHERE THE TRIAL COURT GRANTS THE SAID MOTION AFTER EXPIRATION OF THE LIMITATIONS PERIOD.
II. WHETHER THE PLAINTIFF DEMONSTRATED "GOOD CAUSE" FOR SERVING AN AMENDED COMPLAINT MORE THAN 120 DAYS AFTER EXECUTION OF AN ORDER GRANTING LEAVE TO AMEND WHERE THE FILE MAINTAINED BY THE CIRCUIT CLERK WAS INEXPLICABLY LOST; THE CLERK FAILED TO SUBMIT A COPY OF THE EXECUTED ORDER TO THE PARTIES AS REQUIRED BY M.R.C.P. 77(D); AND, THE AMENDING PLAINTIFF SERVED THE AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF LEARNING THE ORDER GRANTING AMENDMENT WAS EXECUTED BY THE COURT. (WHETHER THE TRIAL COURT ERRED IN DISMISSING THE AMENDED COMPLAINT AS BARRED BY THE STATUTE OF LIMITATIONS)
. Curry seeks a ruling from this Court that a motion to amend, with the amended complaint attached to the motion, "tolls" the statute of limitations when the motion is made prior to the running of the limitations period. This is to be distinguished from the use of the "relation back" provision of M.R.C.P. 15(c) which allows for an amended comp
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