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Hudson v. Lowe's Home Ctrs., Inc.

Court of Appeals of Mississippi

December 16, 2014

ARTHUR GERALD HUDSON AND LINDA S. HUDSON, APPELLANTS
v.
LOWE'S HOME CENTERS, INC., APPELLEE

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/15/2014. TRIAL JUDGE: HON. DALE HARKEY. TRIAL COURT DISPOSITION: GRANTED MOTION FOR SUMMARY JUDGMENT AND IMPOSED SANCTIONS.

FOR APPELLANTS: CHUCK MCRAE.

FOR APPELLEE: JAMES H. HEIDELBERG, JESSICA MARIE DUPONT.

BEFORE LEE, C.J., ISHEE AND JAMES, JJ. LEE, C.J., BARNES, ROBERTS, AND FAIR, JJ., CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND CARLTON, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 603

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

ISHEE, J.:

[¶1] In 2009, Arthur and Linda Hudson (collectively Hudson) filed a personal-injury suit in the Jackson County Circuit Court against Lowe's Home Centers Inc. (Lowe's). The suit was originally dismissed with prejudice by the circuit court and appealed to this Court. We modified the dismissal to reflect one without prejudice. Hudson then refiled a second, identical complaint. However, Lowe's submitted a motion for summary judgment claiming the statute of limitations ran before Hudson filed the second complaint. The circuit court agreed and granted the motion. It also imposed sanctions against Hudson's attorney, Chuck McRae, in the form of reasonable attorney's fees. Aggrieved, Hudson now appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

[¶2] In Hudson v. Lowe's Home Centers Inc., 98 So.3d 1093, 1094-95 (¶ ¶ 1-4) (Miss.Ct.App. 2012), this Court previously addressed the facts and procedural history of this case. That opinion provides the following:

Arthur . . . and Linda Hudson . . . initiated the underlying action following an injury to Arthur allegedly caused by an employee of Lowe's . . . in Pascagoula, Mississippi, on May 5, 2006. Hudson did not immediately file suit. Rather, Hudson's counsel, Chuck McRae, and Lowe's counsel, Ken Adcock, began settlement negotiations. As the three-year statute of limitations was set to expire on May 5, 2009, McRae and Adcock entered three separate agreements to toll the statute, thereby extending the time to file suit to July 31, 2009.
On July 27, 2009, Hudson filed a complaint in the Jackson County Circuit Court against Lowe's. Court records show that on August 3, 2009, the circuit clerk issued a summons addressed to Lowe's registered agent for service of process, Corporation Service Company (CSC), at its address. Adcock was not listed as a registered agent for service of process. McRae asserts that on August

Page 604

6, 2009, he attempted to serve a copy of the summons and complaint on Adcock at Adcock's law office. In the proof of service, which was not notarized until November 2, 2010, McRae admittedly left the summons and complaint at Adcock's law office " on the [right] side of door."
The statute of limitations resumed on November 24, 2009, but expired four days later on November 28, 2009. On January 20, 2010, Lowe's registered agent, CSC, was personally served with a copy of the summons and complaint. On February 10, 2010, Lowe's filed an answer alleging that Hudson's claims were barred by the statute of limitations. Lowe's also filed a motion to dismiss. On November 15, 2010, the trial court granted Lowe's motion to dismiss, finding that Adcock was not the registered agent for Lowe's and that there was not good cause for Hudson's failure to serve process timely.
On appeal, Hudson contends Lowe's admitted that Adcock could be served with process and that good cause existed for the failure to serve process timely.

Id.

[¶3] In Lowe's, this Court affirmed the circuit court's judgment, finding that Adcock was not authorized to receive service, making the service of process on Adcock improper, and Hudson failed to establish good cause for the failure to complete service of process. Id. at 1095-96 (¶ ¶ 8-9, 11). However, we also found that, pursuant to Mississippi Rule of Civil Procedure 4(h), the circuit court improperly dismissed the case with prejudice. Id. at 1096 (¶ 12). As such, we modified the circuit court's judgment to reflect a dismissal without prejudice, " regardless of the statute of limitations." Id. Soon thereafter, Hudson filed for a rehearing and a writ of certiorari. The Mississippi Supreme Court denied the writ of certiorari on October 11, 2012.

[¶4] On October 15, 2012, Hudson filed a new complaint raising the same issues. An amended complaint was filed on January 18, 2013. Subsequently, Lowe's filed a motion for summary judgment, arguing that Hudson's claims were barred by the statute of limitations. In response, Hudson asserted that this Court's modification of the dismissal to one without prejudice preserved four ...


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