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S & H Grocery Inc. v. Gilbert Construction Co.

December 18, 1998

S & H GROCERY INC. APPELLANT
v.
GILBERT CONSTRUCTION CO., INC., APPELLEES SOUTHERN COMPANY, INC., AND CUSTOM SIGN COMPANY, INC.



Before McMILLIN, P.j., Coleman, And Payne, JJ.

The opinion of the court was delivered by: McMILLIN, P.j.

DATE OF JUDGMENT: 08/01/97

TRIAL JUDGE: HON. PERCY LEE LYNCHARD JR.

COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE

TRIAL COURT DISPOSITION: DISMISSED AS NOT FILED WITHIN STATUTE OF LIMITATIONS.

DISPOSITION: AFFIRMED - 12/18/98

¶1. This case raises the issue of whether the "savings" provision of Section 15-1-69 of the Mississippi Code of 1972 extends to suits filed within the permitted one-year grace period after the same cause of action has been dismissed in a court of another State. We hold that the provisions do not apply in such instance and, therefore, affirm the judgment of the trial court.

¶2. S & H Grocery, Inc., the plaintiff at the trial level and the appellant before this Court, filed a negligence action against Gilbert Construction Company, Inc., Southern Company, Inc. and Custom Sign Company, Inc. in the Circuit Court of Shelby County, Tennessee, on November 1, 1990. The alleged acts of negligence occurred while one or more of these defendants were engaged in constructing improvements on a parcel of real property owned by S & H in DeSoto County of this State. The project involved several underground gasoline storage tanks that were, at some point after construction was completed, discovered to be leaking. The Tennessee action was ultimately dismissed for lack of subject matter jurisdiction by the trial court in the summer of 1996 and an ensuing appeal was dismissed January 21, 1997. The present action advancing the same claim was filed in the Circuit Court of DeSoto County on April 30, 1997. Though the exact date the negligence claim accrued is not certain, all parties seem to concede that the limitation period for a negligence claim had expired by the time the DeSoto County suit was filed. The trial court dismissed this action as being untimely under the applicable statute of limitations.

¶3. S & H sought unsuccessfully to convince the trial court that Section 15-1-69 allowed a one year grace period after the end of the Tennessee litigation to file this action in the proper Mississippi court. Section 15-1-69 provides as follows:

"If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff's death, commence such new action, within the said year." Miss. Code Ann. § 15-1-69 (Rev. 1995).

An extraction of the language pertinent to our decision would read as follows: "If in any action, duly commenced within the time allowed, . . . the action [shall be] defeated . . . for any matter of form, . . . the plaintiff may commence a new action for the same cause, at any time within one year after the . . . determination of the original suit . . . ." Miss. Code Ann. § 15-1-69 (Rev. 1995) (emphasis supplied).

¶4. S & H now urges this Court to conclude that the trial court erred in refusing to apply the provisions of Section 15-1-69 to determine that this suit was timely filed after the final determination of the Tennessee litigation.

ΒΆ5. Neither order of dismissal of the Tennessee action (the trial court's order or the appellate court's judgment) is a part of the record in this cause; however, the parties are in agreement that the Tennessee case was dismissed because of a determination that Tennessee lacked subject matter jurisdiction. We will proceed on the assumption that the parties have properly represented the rationale for the outcome of the Tennessee litigation. Prior Mississippi Supreme Court decisions have held that a dismissal for lack of subject matter jurisdiction is a "matter of form" within the meaning of Section 15-1-69, and that the dismissed litigant, therefore, has one year to re-file the action in the appropriate court even though the statute of limitation period may have expired after the earlier litigation was commenced. Deposit Guar. Nat'l ...


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