Robert Hammons, Jr. v. C. Wade Navarre, II , 252 So. 3d 9 ( 2018 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CT-00243-SCT
ROBERT HAMMONS, JR.
v.
C. WADE NAVARRE, II, INDIVIDUALLY AND
d/b/a NAVARRE FABRICATION, INC., NAVARRE
FABRICATION, INC., VELCON FILTERS, LLC,
KNAPPCO CORPORATION AND WILDEN PUMP
AND ENGINEERING, LLC
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 12/31/2014
TRIAL JUDGE: HON. MARGARET CAREY-McCRAY
TRIAL COURT ATTORNEYS: WAYNE E. FERRELL, JR.
JOE S. DEATON, III
MARC A. BIGGERS
MICHAEL C. GATLING
TIMOTHY J. STERLING
W. SCOTT WELCH, III
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR.
ADRIENNE P. PARKER
BRADLEY S. CLANTON
ATTORNEYS FOR APPELLEES: TIMOTHY J. STERLING
CHARLES G. COPELAND
JAMES R. MOORE, JR.
MICHAEL C. GATLING
RICHARD L. KIMMEL
MARK A. BIGGERS
W. SCOTT WELCH, III
CLAY GUNN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 06/07/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. The dispositive issue before the Court is whether Robert Hammons Jr. properly named
fictitious parties in his original complaint so his amended complaint related back to the filing
of the original complaint to avoid the statute-of-limitations bar. The Circuit Court of Leflore
County ruled that Hammons had failed to comply with the fictitious-party rules and granted
summary judgment for the defendants. The Court of Appeals, in an evenly divided decision,
affirmed the circuit court’s judgment. Hammons v. Navarre, 2017 WL 1392835, at *10
(Miss. Ct. App. Apr. 18, 2017).1
¶2. Hammons’s amended complaint—fifteen pages longer than his original
complaint—added new parties and new claims against those parties. As the amendment was
not a substitution under Mississippi Rule of Civil Procedure 9(h), it does not relate back to
the time of filing of the original complaint under Mississippi Rule of Civil Procedure
15(c)(2). Further, the amended complaint was filed outside the statute of limitations, and
Hammons’s claim is time-barred. Thus, we affirm the judgment of the circuit court and the
decision of the Court of Appeals.
1
Wilson, J., wrote the lead opinion, in which Griffis, P.J., Carlton and Fair, JJ.,
concurred. Barnes, J., concurred in part and in the result without separate written opinion.
Greenlee, J., dissented with separate written opinion, in which Lee, C.J., Irving, P.J., Ishee
and Westbrooks, JJ., joined.
2
FACTS AND PROCEDURAL HISTORY2
¶3. On October 25, 2009, Hammons was piloting a helicopter spraying herbicides on
timber fields near Eupora when the helicopter crashed. Hammons was employed by Provine
Helicopter, which owned the subject helicopter. Hammons was severely injured and now is
paralyzed from the waist down.
¶4. On May 26, 2011, the National Transportation Safety Board (“NTSB”) adopted and
published its final report on the accident. The NTSB found that the probable cause of the
crash was a loss of engine power due to fuel contamination. The NTSB report stated:
A postaccident examination of the helicopter’s fuel system revealed a brown
contaminate, of a density greater than jet fuel. . . . Examination of the dual use
truck that was used to service the helicopter with fuel and herbicide revealed
that the fuel filter between the Jet–A fuel tank and the fuel delivery hose was
also contaminated. A common trough that ran along the top of the fuel truck
provided an area where any over flow of water used to fill the truck’s herbicide
tank could be introduced into the truck’s Jet–A fuel tank through gaps in the
fuel tank’s cap seal.
The “dual use truck” was owned and operated by Hammons’s employer, Provine Helicopter.
The NTSB report went on to state:
A 500-gallon fuel tank was located a[t] the foreword end of the truck, while
a tank for mixing water and spray chemical was located at the aft end. A
common trough ran along the top portion of both tanks, which would retain
any over-fill of water or fuel, and was drained through two small holes at the
forward end. Examination of the cap for the fuel tank revealed that the o-ring
seal and the fuel vent were deteriorated, and that the seals were not continuous.
2
Much of this section is taken directly from the statement of facts and procedural
history of the Court of Appeals. Hammons, 2017 WL 1392835, at **1–4.
3
The fuel tank was configured in a way that fuel was taken directly from the
lowest point in the tank, and pumped through a filter to the fuel filler hose. No
standpipe was present at the bottom of the tank that would have prevented any
collected water from entering the fuel filter, and no pressure gauges or sensors
were installed up or downstream of the filter.
The truck-based fuel tank was checked for the presence of water using a water
finding paste applied to a dip stick. A small amount of water was detected.
The fuel filter between the tank and the delivery hose was removed and
examined. The filter element appeared “bulged” and water was present in the
filter. The brown contaminant was present throughout the paper folds of the
fuel filter, and was collected along its interior.
¶5. On December 27, 2011, Hammons filed an eleven-page complaint in the circuit court.
The only named defendant was Scott Petroleum, which supplied fuel to Provine Helicopter.
Hammons alleged that the fuel supplied by Scott Petroleum “was defective and unreasonably
dangerous.” Hammons further alleged that there was no “substantial change in [the fuel’s]
condition from the time the fuel left the places of manufacture and/or processing until the
time of the accident.” Rather, Hammons alleged, the fuel was already in a “defective
condition” when it was “sold” and “left the control of Scott Petroleum.” The complaint did
not allege or articulate any wrongful conduct by any other entity, known or unknown.
¶6. Hammons’s complaint purported to name“Defendants A–P.” As to these defendants,
the complaint stated, in its entirety:
Defendants, A–P, are corporations or persons whose true identities and
addresses are unknown at this time and whose liability to the Plaintiff is
unknown at this time. Plaintiff will amend his Complaint and include the true
names and addresses of the Defendants A–P once their identities are learned
and once their liabilities are ascertained.
¶7. Scott Petroleum was served on March 8, 2012. On April 6, 2012, Scott Petroleum’s
4
counsel provided Hammons’s counsel with a copy of the NTSB report. The cover letter from
Scott Petroleum’s counsel stated in part:
Based on this report, it appears that if fuel contamination existed, that fuel
contamination originated in the field service truck owned by Provine
Helicopter which refueled the subject helicopter several times the day of the
incident. Consequently, pursuant to this correspondence, we hereby request
that you dismiss this matter with prejudice as to [Scott Petroleum].
Obviously, Scott Petroleum can have no liability for the failure of Provine
Helicopter to maintain its service truck.
Scott Petroleum subsequently answered the complaint and filed a motion for summary
judgment that attached the NTSB report as an exhibit.
¶8. On April 8, 2013, Hammons filed a motion for leave to file an amended complaint.
On April 17, 2013, the court entered an agreed order granting Hammons’s motion. On April
30, 2013, Hammons filed a twenty-six-page amended complaint that identified Defendants
A through F from the original complaint as follows: Metal Craft Inc. (“Metal Craft”); Wade
C. Navarre and Navarre Fabrication (collectively, “Navarre”); Velcon Filters LLC
(“Velcon”); Knappco Corporation (“Knappco”); and “Wilden.”3 The amended complaint
alleged that Metal Craft and Navarre manufactured the fuel truck and fuel compartments
used to fuel the helicopter; the amended complaint further alleged, for the first time, that the
truck and compartments were defective. Also, the amended complaint alleged that Velcon
Filters manufactured a fuel filter on the fuel truck; the amended complaint further alleged,
3
“Wilden” subsequently identified itself as Wilden Pump and Engineering LLC.
5
for the first time, that the filter was defective. The amended complaint alleged that Knappco
manufactured the lid on the fuel truck’s fuel tank; the amended complaint further alleged, for
the first time, that the lid was defective. Finally, the amended complaint alleged that Wilden
manufactured the fuel truck’s pump; the amended complaint further alleged, for the first
time, that the pump was defective.
¶9. Navarre, Velcon, Knappco, and Wilden all filed motions to dismiss and/or for
summary judgment. They argued that Hammons’s claims against them were barred by the
statute of limitations because the original complaint did not properly identify them as
fictitious parties pursuant to Mississippi Rule of Civil Procedure 9(h) and, therefore, the
amended complaint’s allegations against them did not relate back to the date of the original
complaint. Knappco and Wilden also argued that the claims against them should be
dismissed due to insufficient service of process.4 It does not appear that Metal Craft was
ever served, and it never entered an appearance.
¶10. In response to the defendants’ motions, Hammons’s attorney submitted an affidavit
that stated in part:
I was associated on or about February 9, 2011. I was asked to investigate and
prosecute a claim, if one existed, against those individuals or entities
responsible for the accident on October 25, 2009.
4
The circuit court did not address the insufficient-service-of-process arguments
because it dismissed all claims against Knappco and Wilden based on the statute of
limitations. Knappco and Wilden argued the issue before the Court of Appeals as an
alternative ground for affirmance. We need not address the issue, as Hammons’s claims are
time-barred.
6
. . . . I immediately began to research and investigate the accident but was
prohibited from making any meaningful investigation whatsoever because of
the inability to inspect and test the fuel and the fueling equipment. I was not
provided with a description of most of the products involved in the fueling
operation; the names and addresses of manufacturers of the parts; or each
party’s roll [sic]in the refueling procedure until January of 2013. The NTSB
investigator filed his supplemental report on May 26, 2011, and for the first
time mentioned potential problems with the fuel supply devices. . . .
. . . . The NTSB did not release any of the information until May 26, 2011, and
the fuel equipment used by Provine Helicopter was not made available to the
Plaintiff until approximately January of 2013 . . . . Only after suit was filed
and after Scott Petroleum partially responded to discovery requests was it
revealed that [Metal Craft, Navarre, Velcon, Knappco, and Wilden] were
potentially additionally responsible for the October 25, 2009 accident . . . .
I did not receive . . . the responses to Freedom of Information requests [from
the NTSB/FAA] until April of 2013. A copy of my Freedom of Information
request letter dated March 6, 2013, is attached hereto . . . .
¶11. The circuit court subsequently held a hearing on the defendants’ motions to dismiss
and/or for summary judgment and entered an opinion and order granting summary judgment
in favor of Navarre, Velcon, Knappco, and Wilden. The court certified its order as final
pursuant to Mississippi Rule of Civil Procedure 54(b).
¶12. Hammons appealed to this Court, and we assigned the case to the Court of Appeals,
which affirmed the trial court’s judgment. Hammons, 2017 WL 1392835, at *10. Hammons
then petitioned this Court for a writ of certiorari, which we granted. Hammons v. Navarre,
2018 WL 709221, at *1 (Miss. Jan. 4, 2018). Upon review, we affirm the decision of the
Court of Appeals.
7
STANDARD OF REVIEW
¶13. This Court reviews an order granting or denying summary judgment de novo. Peoples
Bank of Biloxi v. McAdams, 171 So. 3d 505, 508 (Miss. 2015). Moreover, we subject all
questions of law to a de novo standard. Henley Timber Co. v. Ponti, 991 So. 2d 1195, 1196
(Miss. 2008). The issue of the statute of limitations is a question of law which we review de
novo. McAdams, 171 So. 3d at 508.
ANALYSIS
I. Fictitious Parties
¶14. Rule 9(h) provides:
When a party is ignorant of the name of an opposing party and so alleges in
his pleading, the opposing party may be designated by any name, and when his
true name is discovered the process and all pleadings and proceedings in the
action may be amended by substituting the true name and giving proper notice
to the opposing party.
M.R.C.P. 9(h) (emphasis added). Rule 15(c)(2) allows these name substitutions to relate
back to the date of original filing. M.R.C.P. 15(c)(2). “An amendment pursuant to Rule 9(h)
is not an amendment changing the party against whom a claim is asserted and such
amendment relates back to the date of the original pleading.” Id.
¶15. This Court has held that “the purpose of Rule 9(h) is to allow a plaintiff to proceed
with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and
claims against, the fictitious party, but simply does not know that party’s name.” Veal v. J.P.
Morgan Tr. Co., 955 So. 2d 843, 845–46 (Miss. 2007). We also have recognized that “[i]t
8
is a principle of general application, though, that ignorance of the opposing party for
fictitious party practice extends beyond mere lack of knowledge of the opposing party’s
name.” Womble v. Singing River Hosp., 618 So. 2d 1252, 1267 (Miss. 1993), declined to
follow on other grounds by Sparks v. Kim, 701 So. 2d 1113, 1115–17 (Miss. 1997).
A. Womble and Veal
¶16. In his briefs before the Court of Appeals and his petition for writ of certiorari,
Hammons argues that Veal is an improper departure from Womble. Navarre, Velcon,
Knappco and Wilden all maintain that Veal is consistent with Womble. We agree with
Navarre, Velcon, Knappco and Wilden. While the two cases do not conflict, a discussion of
their facts and holdings is warranted.
¶17. Womble was a wrongful-death action brought against a number of medical defendants
by the heirs of Helen Womble, who died on April 11, 1986. Womble, 618 So. 2d at 1255.
The original complaint, filed on March 28, 1988, included five fictitious parties who were
alleged “to be unknown at that time.” Id. All of the defendants were alleged to have
“committed various acts of negligence which had led to . . . Womble’s death.” Id. The trial
court allowed the heirs to amend their complaint and substitute Dr. Calhoun for one of the
fictitious parties on November 7, 1989. Id. at 1256. While the heirs admitted that they knew
Dr. Calhoun had seen Womble, they maintained “that they had had no reason to suspect any
negligence on Doctor Calhoun’s part until” another physician’s deposition testimony
revealed “that . . . Womble may have stood a higher chance of survival had some method
9
been used to diagnose her illness and bring in a surgeon earlier.” Id.
¶18. At the outset of its analysis of the addition of Dr. Calhoun to the suit, the Womble
Court noted that Mississippi Code Section 15–1–36 (Supp. 1991), a two-year statute of
limitations, governed the heirs’ action. Id. at 1265–66. The Court recognized that “[t]he
running of the statute of limitations under § 15–1–36 may be tolled for a reasonable period
of time to allow plaintiff to acquire and peruse the appropriate medical records.” Id. at 1266.
Concluding that Dr. Calhoun had been added to the complaint outside the period of
limitations, the Court emphasized
that there were medical records which reflected the extent of Dr. Calhoun’s
treatment of the decedent on the day she was admitted to the hospital. The
exercise of reasonable diligence should have led appellants to discern the
extent of Dr. Calhoun’s involvement in this case and join him in this suit long
before the passage of three years and seven months after . . . Womble’s death.
Id.
¶19. With the statute-of-limitations issue decided, the Womble Court turned to the
argument that Dr. Calhoun’s substitution for an original fictitious party related back to the
time of filing of the original complaint under Rules 9(h) and 15(c)(2). Id. at 1266–67. After
quoting Rules 9(h) and 15(c)(2), the Court recognized that:
There is a dearth of Mississippi law on the application of Rule 9(h). It is a
principle of general application, though, that ignorance of the opposing party
for fictitious party practice extends beyond mere lack of knowledge of the
opposing party’s name. Even if the plaintiff knows the true name of the
person, he is still ignorant of his name if he lacks knowledge of the facts
giving him a cause of action against the . . . person.
10
Id. at 1267 (citing Braceda v. Gamsby, 267 Cal. App. 2d 167, 72 Cal. Rptr. 832 (1968),5 and
Columbia Eng’g v. Epsey, 429 So. 2d 955 (Ala.1983)).6 The Court then found that Rule
9(h) did not apply, noting that even the heirs “admit[] that no fair construction of the
pleadings would lead to the conclusion that Dr. Calhoun was identified, even as a John Doe.
For that reason this rule cannot save the action against him, in any event.” Id. In rejecting
the Rule 9(h) argument, the Court also returned to its earlier, reasonable-diligence analysis:
“as noted above, there were numerous medical records on file at SRH indicating the extent
to which . . . [Dr.] Calhoun had participated in the treatment of Helen Womble.” Id.
¶20. Without citing Womble, this Court, in Veal, again applied Rule 9(h) to a wrongful-
death action. Veal, 955 So. 2d at 844. In Veal, Willie Veal brought an action on behalf of
5
In its discussion of the civil procedure rule that governs fictitious parties in
California, the Braceda Court cites Garrett v. Crown Coach Corp., 259 Cal. App. 2d 647,
650, 66 Cal. Rptr. 590, 592 (Ct. App. 1968). Braceda, 72 Cal. Rptr. at 838. Garrett
explains that “even though the plaintiff may know of the existence of a person, the plaintiff
is ‘ignorant’ within the meaning of [the fictitious-party rule] if he lacks knowledge of that
person’s connection with the case.” Garrett, 66 Cal. Rptr. at 592. Womble’s rule statement
and holding is in agreement with Garrett’s interpretation of the term “ignorant” within the
rule.
6
Epsey states,
[A] plaintiff, in order to invoke the relation back principles of Rules 9(h) and
15(c), must meet the following criteria: . . . 2) plaintiff must be ignorant of the
identity of the fictitious party, in the sense of having no knowledge at the time
of the filing that the later named party was in fact the party intended to be
sued.
Epsey, 429 So. 2d at 958–59 (Ala. 1983) (emphasis added).
11
Willie Smith’s estate against two corporations and a number of fictitious parties.7 Id. With
written consent of the two named defendants, Veal filed a second amended complaint that
substituted newly named defendants, including J.P. Morgan Trust Co. (“J.P. Morgan”), for
the named fictitious parties. Id. “In addition, the Second Amended Complaint included new
facts and allegations regarding the ‘substituted’ defendants’ involvement [in the suit].” Id.
J.P. Morgan moved to dismiss, and the trial court granted the motion. Id. at 844–45.
¶21. On appeal, the Veal Court held that the parties added in the amended complaint were
newly added parties and not substitutions under Rule 9(h). Id. at 846–47. The Court noted
that the original complaint’s allegations concerning the alleged fictitious parties “provide[d]
no indication that Veal was aware of the existence of any of the additional defendants added
by the Second Amended Complaint. Veal simply attempted to substitute newly discovered
defendants for the previously named fictitious parties.” Id. at 846.
¶22. As the Court of Appeals observed, Veal’s discussion of Rule 9(h) that led to this
7
As to the fictitious defendants, Veal, in her original complaint, had alleged:
Said Defendants are named pursuant to Miss. R. Civ. P. 9(h), insofar as their
acts and/or omissions were negligent and/or otherwise tortious with respect
to the care and treatment of, or in the staffing, supervision, administration and
direction of the care and treatment of, [the deceased] during her residency at
AUTUMN LEAVES NURSING HOME. Alternatively, said Defendants are
liable for the negligent and/or otherwise tortious acts and/or omissions of
others with respect to the care and treatment of [the deceased] during her
residency at AUTUMN LEAVES NURSING HOME.
Id. at 846 (alterations in original).
12
conclusion “is directly applicable to the present case.” Hammons v. Navarre, 2017 WL
1392835, at *4 (Miss. Ct. App. Apr. 18, 2017). The Veal Court explained:
[W]here a plaintiff wishes to file suit against a defendant whose name is not
known, the suit may be filed by providing the defendant a fictitious name.
Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who wish
to protect themselves in case they discover new defendants in the course of
litigation. Rule 9(h) authorizes the plaintiff to deviate in only one respect from
the requirements of the Mississippi Rules of Civil Procedure in bringing a
claim. That is, the plaintiff is allowed to use a fictitious name, rather than the
true name of the defendant. In other words, the purpose of Rule 9(h) is to
allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can
articulate the wrongful conduct of, and claims against, the fictitious party, but
simply does not know that party’s name.
Rule 9(h) does not say that a plaintiff may include a fictitious party because the
plaintiff suspects that there might be someone out there who might have
engaged in conduct which might be actionable. For instance, if the plaintiff
knew that a nurse was assisting a doctor with a procedure and that the nurse
engaged in negligent conduct, the plaintiff is not prevented from proceeding
with litigation against the nurse simply because the plaintiff does not know the
name of the nurse. The plaintiff may sue “Nurse X” and upon learning the
nurse’s name, substitute it for the fictitious party under Rule 9(h). See Miss.
R. Civ. P. 9(h).
However, where a plaintiff suspects that there might have been others involved
in the procedure who might have been negligent, but is, at the time suit is filed,
unaware of who they are or what negligent act they are alleged to have
committed, the plaintiff may not include a fictitious party in the complaint.
This Court has previously stated that “the purpose of Rule 9(h) is to provide
a mechanism to bring in responsible parties, known, but unidentified, who can
only be ascertained through the use of judicial mechanisms such as discovery.”
Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 896–97 (Miss. 2006)
(emphasis added).
Veal, 955 So. 2d at 846–47 (emphasis in original).
¶23. This Court consistently has applied the same reasoning that underlies Womble and
13
Veal to numerous Rule 9(h) cases. See Rawson v. Jones, 816 So. 2d 367, 369 (Miss. 2001)
(citing Doe v. Mississippi Blood Servs., Inc., 704 So. 2d 1016, 1019 (Miss.1997)) (“The
purpose of Rule 9(h) is to provide a mechanism to bring in known, but unidentified,
responsible parties who may only be ascertained through the use of judicial mechanisms such
as discovery.”); Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 42 (Miss. 2007) (“One of
the benefits of Rule 9(h) is to allow a plaintiff, who is aware of his cause of action against
a defendant but ignorant of the defendant’s identity, to name a fictitious party as a defendant
in order to use the court’s resources to discover her true identity.”); Price v. Clark, 21 So. 3d
509, 526 (Miss. 2009) (“[A]t the time the original complaint was filed, Price neither knew
the identities of the parties, nor was she aware of any facts giving rise to any cause of action
against such unknown individual or corporate entity; therefore, the trial court did not err in
finding that Price’s substitution did not comport with the purpose of Rule 9(h).”).
¶24. The Veal Court’s holding was consistent with precedent for three primary reasons.
First, the Veal Court correctly applied the plain and ordinary meaning of Rule 9(h). As it
recognized, “this Court is bound to follow the plain and ordinary meanings of the Rules of
Civil Procedure.” Veal, 955 So. 2d at 845 (citing Poindexter v. Southern United Fire Ins.
Co., 838 So. 2d 964, 971 (Miss. 2003) and Van Meter v. Alford, 774 So. 2d 430, 432 (Miss.
2000)).
¶25. Second, a close examination of Womble’s rule statement reveals the meaning in the
statement “that ignorance of the opposing party for fictitious party practice extends beyond
14
mere lack of knowledge of the opposing party’s name.” Womble, 618 So. 2d at 1267. The
Womble Court already had noted the “dearth of Mississippi law on the application of Rule
9(h)” before it cited Garrett and Epsey to explain the rule. Id. (citing Garrett, 66 Cal. Rptr.
at 592, and Epsey, 429 So. 2d at 958–59). Both Garrett and Epsey support the proposition
that a plaintiff may actually know the true name of an entity but still be ignorant of the
entity’s name under the fictitious-party rule, where the plaintiff does not know the facts
necessary to realize the true name of the entity that is liable. See supra, fn. 6, 7; Garrett, 66
Cal. Rptr. at 592; Epsey, 429 So. 2d at 958–59. A number of factual scenarios exist in which
this principle might apply.
¶26. Third, the Womble Court found that Rule 9(h) did not apply to the facts before it.
Womble, 618 So. 2d at 1267. While it is unnecessary to determine if Womble’s analysis is
dictum, even the heirs in Womble “admit[ted] that no fair construction of the pleadings
would lead to the conclusion that Dr. Calhoun was identified, even as a John Doe.” Id.; see
Collins by Smith v. McMurry, 539 So. 2d 127, 130 (Miss. 1989) (“[T]his Court has held on
more than one occasion that a statement which qualifies as dictum does not have a binding
effect.”). In light of our analysis, we reaffirm Veal and decline to find that it was an
improper departure from our precedent.
B. Application of Rule 9(h)
¶27. The present question under Rule 9(h) is whether or not Hammons’s original complaint
identified a cause of action against a fictitious party whose real name Hammons later
15
substituted in his amended complaint. Rule 9(h) allows a party who “is ignorant of the name
of an opposing party” to state so in the complaint and later amend the complaint when the
party’s “true name is discovered.” M.R.C.P. 9(h). Rule 9(h) grants a party the authority to
amend only “by substituting the true name” of the fictitious party. Id. Inherent within a Rule
9(h) claim against a fictitious party is an actual claim against that party.
¶28. Here, though, it is clear from the record that Hammons did not make any claim against
any fictitious defendant in his original complaint. See Price, 21 So. 3d at 526; Veal, 955 So.
2d at 846. His original complaint admitted as much:
Defendants, A–P, are corporations or persons whose true identities and
addresses are unknown at this time and whose liability to the Plaintiff is
unknown at this time. Plaintiff will amend his Complaint and include the true
names and addresses of the Defendants A–P once their identities are learned
and once their liabilities are ascertained.
Hammons’s sole theory of liability in his original complaint was that Scott Petroleum
supplied defective fuel. Further, Hammons was clear in his original allegations that the
defective fuel was defective at the point that it left Scott Petroleum’s control and was used
to fuel the aircraft in the same defective state. No other allegations were made in the original
complaint against any other party.
¶29. Further, Hammons’s allegations in the amended complaint were the first allegations
against the fictitious parties and directly contradicted his original theory of the case.8 In the
8
Hammons needed an additional fifteen pages to explain the new allegations against
Navarre, Velcon, Knappco and Wilden. The original complaint was eleven pages; the
amended complaint was twenty-six pages.
16
original complaint, all of the liability was cast upon Scott Petroleum, and there was no
implication or hint that the fuel may have been affected by the fuel truck. Hammons, through
the amended complaint, though, alleged that Scott Petroleum “certified that the fuel pumped
into the Aircraft was safe, not defective and not unreasonably dangerous.” He then alleged
the new claim that the fuel was contaminated by Navarre, Velcon, Knappco and Wilden after
it left Scott Petroleum’s control.
¶30. “[A]t the time the original complaint was filed, [Hammons] neither knew the identities
of the parties, nor was []he aware of any facts giving rise to any cause of action against such
unknown individual or corporate entity.” Price, 21 So. 3d at 526. Thus, Hammons’s alleged
substitutions in his amended complaint “simply attempted to substitute newly discovered
defendants for the previously named fictitious parties.” Veal, 955 So. 2d at 846. Such an
amendment is not contemplated under Rule 9(h). Rule 9(h) does not provide authority for
a party to join a fictitious party without knowing whether or not the party that is joined is
liable. Thus, Hammons—who admitted that the alleged fictitious defendants’ “liability to
the Plaintiff is unknown at this time”—did not join any fictitious parties to his suit by means
of the original complaint. Navarre, Velcon, Knappco and Wilden were named to the suit, for
the first time, by Hammons’s amended complaint.
¶31. Thus, Hammons failed to properly name any fictitious defendants in his original
complaint. We now turn to the application of the statute of limitations.
17
II. Statute of Limitations9
¶32. Hammons’s claims are governed by the three-year statute of limitations. Miss. Code
Ann. § 15–1–49 (Rev. 2012). Section 15–1–49 provides, in part:
(1) All actions for which no other period of limitation is prescribed shall be
commenced within three (3) years next after the cause of such action accrued,
and not after.
(2) In actions for which no other period of limitation is prescribed and which
involve latent injury or disease, the cause of action does not accrue until the
plaintiff has discovered, or by reasonable diligence should have discovered,
the injury.
Miss. Code Ann. § 15–1–49.
¶33. Hammons crashed on October 25, 2009. Hammons filed his amended complaint
against Navarre, Velcon, Knappco and Wilden on April 30, 2013. As just over three years
and six months had passed between the crash and Hammons’s amended complaint, the
amended complaint was filed outside the three-year statute of limitations. Under Section
15–1–49, these claims are time-barred unless the claims relate back to the date of filing of
the original complaint, the cause of action had not accrued or the statute of limitations was
tolled.
¶34. As already recognized, Rule 15(c)(2) notes that “[a]n amendment pursuant to Rule
9(h) . . . relates back to the date of the original pleading.” M.R.C.P. 15(c)(2). Hammons’s
9
Judge Wilson wrote a well-reasoned analysis of the statute-of-limitations issue for
the Court of Appeals, from which we borrow heavily. Hammons, 2017 WL 1392835, at
**9–10.
18
addition of new parties, though, was not an amendment pursuant to Rule 9(h) and does not
relate back to the date of filing of his original complaint.
¶35. Hammons also argues that his cause of action against Navarre, Velcon, Knappco and
Wilden did not accrue until he discovered their identities and their alleged wrongful conduct.
This argument, though, is contrary to the plain language of Section 15–1–49: “In actions .
. . which involve latent injury or disease, the cause of action does not accrue until the
plaintiff has discovered . . . the injury.” Miss. Code Ann. § 15–1–49(2). The cause of action
accrues upon the discovery of the injury. This is not a case that would implicate subsection
two of Section 15–1–49. Hammons’s injury was known to him immediately.
¶36. Even if subsection two did apply, this Court has addressed this issue directly, as the
Court of Appeals recognized. See Angle v. Koppers Inc., 42 So. 3d 1, 5 (Miss. 2010) (“[T]he
plain language of the statute supports [the] argument that the cause of action accrued upon
discovery of the injury, not discovery of the injury and its cause.”) (emphasis in original).
We recently reaffirmed Angle’s holding. City of Tupelo v. O’Callaghan, 208 So. 3d 556,
569 (Miss. 2017) (citing Angle, 42 So. 3d at 5–7).
¶37. Hammons’s final argument is that the statute of limitations was tolled by Mississippi
Code Section 15–1–63, which provides:
If, after any cause of action has accrued in this state, the person against whom
it has accrued be absent from and reside out of the state, the time of his
absence shall not be taken as any part of the time limited for the
commencement of the action, after he shall return.
Miss. Code Ann. § 15-1-63 (Rev. 2012). In Sullivan v. Trustmark National Bank, this
19
Court stated that this provision
require[s] that a plaintiff seeking to benefit from it must have been unable to
effect service on the defendant for the period which it is claimed that the
statute is tolled. That is, the defendant must have left the state and not be
amenable to service under a long-arm statute or other means, because for
example, his whereabouts are unknown. The period of time that the
defendant’s whereabouts are unknown is deducted from the period of the
statute which would otherwise have run, in effect, adding that time to the
statute of limitations. However, the statute of limitations is not tolled where
the plaintiff knew or should have known of the defendant’s whereabouts. The
burden of proof that the defendant was absent and not amenable to service is
on the plaintiff.
Sullivan v. Trustmark Nat’l Bank, 653 So. 2d 930, 931–32 (Miss. 1995) (citations omitted).
¶38. According to Hammons, Section 15–1–63 tolled the limitations period simply because
it allegedly was impossible for him to discover the identities of the added defendants. As the
Court of Appeals noted, Section 15–1–63 never has been applied to toll the statute of
limitations where a plaintiff cannot discover the identity of a defendant. Further, Hammons
provided no evidence that the added defendants were not amenable to service. In fact, he
promptly served or attempted service on them after he filed the amended complaint.10
¶39. We recognize the finality of our decision today for Hammons. Hammons, though,
was not without recourse under our law. Hammons could have amended his complaint to
10
It is settled law that we review statute-of-limitations issues de novo. McAdams,
171 So. 3d at 508. Thus, Hammons’s argument that the circuit court did not consider his
arguments concerning the statute of limitations and that he is entitled to remand on the issue
is without merit. We also find no support for Hammons’s claim. The circuit court did not
specifically detail each of Hammons’s arguments in its analysis—focusing on Rules 9 and
15, but it clearly determined that the claim was time-barred.
20
allege a cause of action to hold liable the fictitious defendants before the statute of limitations
ran.11 On May 26, 2011, the NTSB publicly adopted the final report of the crash. This was
only one year and seven months after the accident on October 25, 2009. While no claim is
in the record that the NTSB report was not publicly available on May 26, 2011, Hammons’s
counsel (who, according to his affidavit, primarily practices in airplane and helicopter crash
litigation) admitted that he received the NTSB report on April 6, 2012. This was
approximately two years and five months after the accident. The NTSB report revealed
information about the fuel truck and its mechanisms that clearly contradicted the sole theory
of liability in Hammons’s original complaint. There is no evidence in the record or any
allegation before us that Hammons, after reviewing the NTSB report, could not have
11
Hammons of course argues that he already had preserved these claims by means of
his original complaint. As discussed, however, in his original complaint, Hammons
admitted that he did not know if the alleged fictitious defendants even were liable to him.
With the statute of limitations looming, Hammons did nothing to bring claims against the
alleged fictitious defendants. Instead, he allowed the statute of limitations to expire on his
claims without amending his complaint to inform the Court that the fictitious defendants
actually were liable to him. Nothing in the law required Hammons to know every detail of
his theory of liability against the fictitious defendants. Mississippi long has recognized
pleading in the alternative. See M.R.C.P. 8(a), (e)(2) (“A party may set forth two or more
statements of a claim or defense alternatively or hypothetically. . . .”). The law, though, did
require Hammons actually to bring a cause of action before the statute of limitations expired.
Further, Hammons simply could have added additional defendants to his lawsuit. See
M.R.C.P. 21. Nothing in our holding today limits the types of claims or the number of
claims available to a party under the Rules of Civil Procedure. A party may toll the statute
of limitations against a fictitious party by bringing a known claim against the fictitious party.
Otherwise, a party simply must add another party under Rule 21. M.R.C.P. 21. Any claims
against new parties joined not only would be subject to the statute of limitations—including
any claim of tolling—but likewise would have available to them any defenses under the
statute of limitations as well.
21
amended his complaint to allege a theory of liability against the fictitious defendants to
preserve his claims against them.
CONCLUSION
¶40. Hammons’s original complaint did not name any fictitious defendants within the
meaning of Rule 9(h). As such, he actually named Navarre, Velcon, Knappco and Wilden
for the first time in his amended complaint; thus, the amendment did not relate back to the
time of filing of the original complaint. Further, the claims against Navarre, Velcon,
Knappco and Wilden—made three years and six months after the injury in this case—are
barred by the statute of limitations. Therefore, we affirm the judgment of the circuit court
and the decision of the Court of Appeals.
¶41. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM , JJ.,
CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KING, J. ISHEE, J., NOT PARTICIPATING.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶42. I respectfully dissent. I would find that the amended complaint filed by Robert
Hammons, Jr., properly made substitutions for fictitious parties under Mississippi Rule of
Civil Procedure 9(h). Therefore, I would reverse and remand the case to the circuit court for
further proceedings, including a determination of whether Hammons exercised reasonable
diligence in identifying Navarre, Velcon, Knappco, and Wilden for the purposes of relation
back under Mississippi Rule of Civil Procedure 15(c)(2).
22
¶43. Rule 9(h) provides:
(h) Fictitious Parties. When a party is ignorant of the name of an opposing
party and so alleges in his pleading, the opposing party may be designated by
any name, and when his true name is discovered the process and all pleadings
and proceedings in the action may be amended by substituting the true name
and giving proper notice to the opposing party.
M.R.C.P. 9(h). We have held that “[t]he purpose of Rule 9(h) is to provide a mechanism to
bring in responsible parties, known, but unidentified, who can only be ascertained through
the use of judicial mechanisms such as discovery.” Doe v. Miss. Blood Servs., 704 So. 2d
1016, 1019 (Miss. 1997).
¶44. In Womble v. Singing River Hospital, 618 So. 2d 1252, 1267 (Miss. 1993), overruled
on other grounds, this Court discussed Rule 9(h) and expressed that:
There is a dearth of Mississippi law on the application of Rule 9(h). It is a
principle of general application, though, that ignorance of the opposing party
for fictitious party practice extends beyond mere lack of knowledge of the
opposing party’s name. Even if the plaintiff knows the true name of the person,
he is still ignorant of his name if he lacks knowledge of the facts giving him a
cause of action against . . . that person. See, e.g., Br[e]ceda v. Gamsby, 267
Cal. App. 2d 167, 72 Cal. Rptr. 832 (1968); Columbia Engineering v. Epsey,
429 So. 2d 955 (Ala. 1983).
Id. (emphasis added). In Doe v. Mississippi Blood Services, we expanded on Womble and
held that, because of the relation-back privilege in Rule 9, a plaintiff seeking to amend the
complaint must have exercised reasonable diligence to discover the identities of the fictitious
parties. Doe, 704 So. 2d at 1019. As outlined below, Womble and Doe have provided the
standard used in numerous subsequent cases to determine issues of fictitious party practice.
¶45. But in Veal v. J.P. Morgan Trust Co., 955 So. 2d 843, 846 (Miss. 2007), this Court,
23
without citing Womble, articulated that:
Rule 9(h) authorizes the plaintiff to deviate in only one respect from the
requirements of the Mississippi Rules of Civil Procedure in bringing a claim.
That is, the plaintiff is allowed to use a fictitious name, rather than the true
name of the defendant. In other words, the purpose of Rule 9(h) is to allow a
plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate
the wrongful conduct of, and claims against, the fictitious party, but simply
does not know that party’s name.
Id. (emphasis added).
¶46. It is plain that, under Womble and Doe, a plaintiff successfully can bring a claim
against a fictitious party even if the plaintiff lacks knowledge of the facts giving rise to a
cause of action against that party, and amendment will be allowed if the plaintiff exercised
reasonable diligence to discover the party’s identity. Womble, 618 So. 2d at 1267; Doe, 704
So. 2d at 1019. But Veal allows substitution only if the plaintiff is fully cognizant of the
claim against the unknown party but ignorant of the party’s name. I would find that Womble
and Veal provide two different standards for fictitious party practice under Rule 9(h). The
majority dispenses with the Womble standard and applies the standard from Veal. I would
find that the rules from Womble and Doe are controlling, and that, because Hammons’s
original complaint and his amended complaint both alleged the same general theory, that the
accident was caused by defective fuel, his amended complaint satisfied the fictitious party
pleading requirements of Rule 9(h). The only remaining inquiry is whether Hammons
exercised reasonable diligence in discovering the identities of the fictitious parties.
¶47. As Judge Greenlee rightly observed in his dissent for the Court of Appeals, the courts
24
of Mississippi have relied most frequently on the Rule 9(h) standard announced by Womble.
Price v. Clark, 21 So. 3d 509, 526 (Miss. 2009); Rawson v. Jones, 816 So. 2d 367, 369
(Miss. 2001); Doe v. Miss. Blood Servs., Inc., 704 So. 2d 1016, 1018-19 (Miss. 1997);
Davenport v. Hertz Equip. Rental Corp., 187 So. 3d 194, 199 (Miss. Ct. App. 2016);
Turnage v. McConnell Tech., No. 16-60291, 2016 WL 7209719, at *2 (5th Cir. Dec. 12,
2016); Pruitt v. Invacare Corp., No. 2:13CV293-TSL-JCG, 2014 WL 5465342, at *5 (S.D.
Miss. Oct. 28, 2014); Scoggins v. Boston Scientific Corp., No. 2:08CV032-P-A, 2008 WL
1821498, at **2-3 (N.D. Miss. Apr. 22, 2008). As Judge Greenlee noted, the Womble
standard has been employed as the prevailing rule even after our decision in Veal.
¶48. Moreover, the rule from Womble fully comports with the relation-back provisions of
Rule 9(h) and Rule 15(c). For relation back under Rule 15(c), the claim or defense must have
arisen “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading.” M.R.C.P. 15(c). Because an amendment under Rule 9(h) does not
change the party against whom a claim is asserted, such an amendment automatically relates
back. M.R.C.P. 15(c)(2). Under Womble, “[e]ven if the plaintiff knows the true name of the
person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause
of action against [] that person.” Womble, 618 So. 2d at 1267. I observe that this language
came almost verbatim from Breceda v. Gamsby, 267 Cal. App. 2d 167, 174, 72 Cal. Rptr.
832, 837-38 (1968). Breceda also explained that “[a] defendant unaware of the suit against
him by a ficti[t]ious name is in no worse position if, in addition to substituting his true name,
25
the amendment makes other changes in the allegations on the basis of the same general set
of facts.” Id. (quoting Austin v. Mass. Bonding & Ins. Co., 364 P.2d 681, 684 (Cal. 1961)).
¶49. Turning to this case, I would find that Hammons’s original complaint sufficiently set
forth claims against the appellees. Under Womble, Hammons was not required to allege all
the facts giving him a cause of action against the unknown parties to satisfy Rule 9(h). A
comparison of Hammons’s original complaint with the amended complaint reveals that both
complaints were founded on the same theory and general set of facts: that a fuel defect
caused the injurious helicopter crash. The theory underlying Hammons’s original complaint
was that “the fuel pumped into the Aircraft in question was defective and unreasonably
dangerous.” In his amended complaint, Hammons continued to maintain this theory, claiming
that “[t]he fuel pumped into the accident Aircraft was defective and unreasonably dangerous
and/or was rendered defective and/or unreasonably dangerous because of the actions or non
actions of [the defendants].” Thus, as recognized by Judge Greenlee in his dissenting opinion
for the Court of Appeals, Hammons’s original complaint alleged a claim for product liability
for defective fuel, and his amended complaint continued to maintain a product liability claim
based on defective fuel, although more detailed, against the appellees.
¶50. I recognize the majority’s concern with the fact that Hammons’s complaint says that
the fictitious defendants “are corporations or persons whose liability to the Plaintiff is
unknown at this time.” Nonetheless, this Court has held that it is not bound by the literal
language of the complaint and that substance must prevail over form. Sanderson Farms, Inc.
26
v. McCullough, 212 So. 3d 69, 74 (Miss. 2017). Substantively, Hammons maintained the
same claim between his original and amended complaints. I would hold that, because
Hammons’s amended complaint asserted the same theory of liability, based on the same
general facts, as his original complaint, it complied with Rule 9(h). However, because the
trial court never considered whether Hammons exercised reasonable diligence to identify the
fictitious parties, I would reverse and remand for a determination on this issue.
KING, J., JOINS THIS OPINION.
27