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Johnson v. Rhett

Court of Appeals of Mississippi

January 9, 2018

SAMUEL ANDREW JOHNSON AND KATHY JOHNSON APPELLANTS
v.
WYTHE RHETT, IN HIS INDIVIDUAL CAPACITY APPELLEE

          DATE OF JUDGMENT: 11/04/2015

         LOWNDES COUNTY CIRCUIT COURT HON. LEE J. HOWARD TRIAL JUDGE

          ATTORNEYS FOR APPELLANTS: JEFFREY CARTER SMITH COURTNEY BRADFORD SMITH

          ATTORNEY FOR APPELLEE: CHARLES CAMERON AUERSWALD

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          LEE, C.J.

         ¶1. In this appeal, we must decide whether Samuel and Kathy Johnson's claims against Wythe Rhett were time-barred by the statute of limitations and, as a result, whether summary judgment in favor of Rhett was proper. Because we find the statute-of-limitations issue dispositive, we decline to address the Johnsons' other assignments of error. The case on appeal (Rhett II) is based largely upon facts and procedural history that occurred in previous litigation between the parties (Rhett I).

         FACTS AND PROCEDURAL HISTORY

          I. Rhett I

         ¶2. In November 2005, the Johnsons contracted with Rhett Construction LLC, Rhett's company, to serve as the general contractor over certain renovations and new construction to their home. The Johnsons moved into the home in November 2007. After taking possession of the home, the Johnsons were dissatisfied with the work performed by Rhett Construction, alleging it was defective, poor workmanship, damaged, and so on. The Johnsons made an informal complaint in 2008 with the Mississippi State Board of Contractors, and an official complaint was later filed in 2009.

         ¶3. On August 26, 2010, the Johnsons filed suit in the Lowndes County Circuit Court against Rhett, d/b/a Rhett Construction, for breach of contract, and sought damages for the alleged negligent performance of the construction contract. On November 4, 2010, Rhett answered the complaint, denying liability and asserting affirmative defenses and counterclaims. The counterclaims Rhett asserted included one on behalf of the LLC to recover amounts owed to Rhett Construction under the contract and several on behalf of Rhett individually for malicious prosecution, abuse of process, slander, and intentional and negligent infliction of emotional distress. Rhett brought these individual counterclaims based on his belief that he should not have been named as a defendant in his individual capacity and that a complaint should not have been filed with the board of contractors against him individually. On February 11, 2011, in response to Rhett's counterclaims, the Johnsons filed a document titled "Response to Counter-claim, Affirmative Defenses, and Counter-claim to Claim of Wythe Rhett." The document, which was filed without seeking leave to amend, states, "These Original Plaintiffs and Counter-Defendants would file this their Amended-Claim or Amended Complaint against Wythe Rhett d/b/a Rhett Construction, LLC . . . ."

         ¶4. In February 2011, Rhett filed a motion to dismiss the claims against him in his individual capacity, and the trial court granted his motion on August 14, 2012, finding that Mississippi Code Annotated section 79-29-311 (Rev. 2013) shields members of LLCs from personal liability for claims against the LLC. Also on August 14, 2012, the trial court partially granted the Johnsons' motion for summary judgment, filed in January 2011, thereby dismissing Rhett's intentional-tort claims brought in his individual capacity against the Johnsons. This left the Johnsons' original claims, including breach of contract, and Rhett Construction's counterclaim for unpaid work performed under the construction contract.

         ¶5. On August 30, 2012, following the trial court's dismissal of Rhett in his individual capacity, the Johnsons filed a "First Amended Complaint." This amended complaint again named Rhett as a defendant in his individual capacity and again asserted claims of breach of contract, gross negligence, and added a claim for malicious prosecution. The Johnsons brought the malicious-prosecution claim in response to Rhett's intentional-tort counterclaims against them. The trial court struck the Johnsons' amended complaint on August 30, 2013, for failure to seek leave to amend. This prompted the Johnsons to file a new, separate action against Rhett (Rhett II), the present action on appeal.

         II.Rhett ...


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