Davis Davenport v. Hertz Rental Equipment Corporation

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00179-COA
DAVIS DAVENPORT APPELLANT
v.
HERTZ EQUIPMENT RENTAL CORPORATION APPELLEE
DATE OF JUDGMENT: 01/24/2014
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CARLOS EUGENE MOORE
TANGALA LANIECE HOLLIS
ATTORNEYS FOR APPELLEE: JAMES GRADY WYLY III
KYLE STUART MORAN
MICHAEL FRANKLIN HELD
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN
FAVOR OF APPELLEE
DISPOSITION: AFFIRMED – 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2014-CA-01021-COA
DAVIS DAVENPORT APPELLANT
v.
TEREX CORPORATION APPELLEE
DATE OF JUDGMENT: 05/20/2014
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CARLOS EUGENE MOORE
TANGALA LANIECE HOLLIS
ATTORNEYS FOR APPELLEE: MARK D. JICKA
CAROLINE KUNZ IVANOV
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN
FAVOR OF APPELLEE
DISPOSITION: APPEAL DISMISSED – 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.
IRVING, P.J., FOR THE COURT:
¶1. This is a consolidated appeal stemming from two separate, yet related, summary-
judgment orders rendered by the Circuit Court of Rankin County against Davis Davenport
and in favor of Hertz Equipment Rental Corporation and Terex Corporation, respectively.
The circuit court determined that Davenport had improperly substituted both Hertz and Terex
pursuant to Rule 9(h) of the Mississippi Rules of Civil Procedure and that the statute of
limitations had run before Davenport filed complaints against them. On appeal, Davenport
asserts that the trial court erred in (1) granting summary judgment in favor of Hertz and
Terex, and (2) certifying Hertz’s judgment as final pursuant to Rule 54(b) of the Mississippi
Rules of Civil Procedure.
¶2. Finding no error, we affirm the summary judgment granted in favor of Hertz but
dismiss Davenport’s appeal of the summary judgment granted in favor of Terex, as it is not
a final judgment and was not so certified pursuant to Rule 54(b).
FACTS
¶3. On May 26, 2009, Davenport sustained on-the-job injuries after a raised “man buggy”
2
that he was in suddenly fell to the ground, landing in a trash bin. Almost three years later,
on May 16, 2012, Davenport filed a complaint in the Rankin County Circuit Court against
the following parties: (1) JKS Construction Inc., a subcontractor of the general contractor
Dynamic Services Inc.; (2) Dynamic Services Inc.; (3) RSC Equipment Rental Inc., which
later became United Rentals; and (4) John Doe Corporations 1 and 2.1 At the time of
Davenport’s original complaint, he alleged that the John Doe Corporations were strictly
liable for negligently distributing and/or manufacturing the man buggy or its component
parts. On August 2, 2012, Davenport responded to United Rentals’ first set of
interrogatories, wherein he revealed that he was aware that Hertz had performed repair work
on the subject man buggy prior to the accident. On August 13, 2012, Davenport moved to
substitute Hertz for one of the John Doe Corporations. On March 11, 2013, the trial court
granted Davenport’s motion to substitute, and on March 18, 2013, Davenport filed an
amended complaint, substituting Hertz for John Doe Corporation 2 and included theories of
liability against Hertz that were not asserted in the original complaint against the original
defendants.
¶4. Following the filing of the amended complaint, Hertz filed a motion to dismiss the
complaint under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, alleging that
Hertz had been improperly substituted and that the applicable statute of limitations had run
1
Davenport was employed by Jaimie Deano, who was a subcontractor of JKS. Deano
was never party to the litigation.
3
on Davenport’s claims against Hertz. Following a hearing, the trial court denied Hertz’s
motion to dismiss. However, the trial court found that Davenport had improperly added
additional theories of liability and struck those allegations. By separate order, the trial court
dismissed the amended complaint and ordered Davenport to file a new amended complaint
in compliance with its March 11, 2013 order that allowed the substitution of Hertz.
Davenport complied, and filed a second amended complaint on August 23, 2013.
¶5. On October 4, 2013, Hertz filed a motion for summary judgment. In support of its
motion, Hertz attached an affidavit signed by Davenport’s brother, David Davenport, who
was working at the construction site and was at the scene of the accident when it occurred.
In his affidavit, David stated that the man buggy his brother was in was owned by Hertz and
that it had a visible Hertz label on it at the time of the accident.2 Hertz also attached
Davenport’s response to United Rentals’ interrogatory number 13, dated August 2, 2012,
wherein Davenport acknowledged that he knew Hertz had performed work on the man buggy
two days prior to the accident.
¶6. In response, Davenport filed, inter alia, a memorandum in opposition to Hertz’s
motion for summary judgment and his own affidavit. In his affidavit, Davenport stated that
he was “unaware of the identity of all of the entities involved with repairing, manufacturing,
and/or distributing the man buggy, wherein [he] was injured” and that he “did not learn of
2
Nothing in the record explains how David knew that the man buggy was owned by
Hertz. Perhaps he assumed so because Hertz’s name was plainly visible on it.
4
[Hertz’s] identity until August of 2012.”3
¶7. Following the summary-judgment hearing, the trial court found that, pursuant to
Karpinsky v. American National Insurance, 109 So. 3d 84 (Miss. 2013), Hertz had met its
burden of showing that no genuine issues of material fact existed and that it was, therefore,
entitled to summary judgment. In arriving at this decision, the trial court determined that
Davenport had failed to show that he had made a reasonably diligent effort to identify Hertz
prior to the running of the statute of limitations and, consequently, the substitution of Hertz
did not relate back to the original complaint.4
¶8. We now turn to the factual history regarding Terex. On October 30, 2013, Davenport,
pursuant to permission granted by an agreed order, filed his fourth amended complaint,
substituting Terex for John Doe Corporation 1. In this amended complaint, Davenport
alleged that Terex was the manufacturer of the man buggy. On February 24, 2014, Terex
moved for summary judgment, asserting that it was improperly substituted and that the statute
of limitations had run. After a hearing on Terex’s motion, the circuit court granted summary
3
Davenport he does not explain how or from whom he obtained the information about
Hertz having repaired the man buggy two days prior to the accident.
4
Following the decision of the circuit court, Davenport filed a motion for
reconsideration, and Hertz filed a motion for a Rule 54(b) final judgment. The circuit court
heard oral arguments in support of and in opposition to both motions on January 14, 2014.
On January 24, 2014, the circuit court entered separate orders, one denying the motion for
reconsideration and the other granting the motion for a Rule 54(b) final judgment. The
circuit court also dismissed all the claims against Hertz with prejudice. The court found that
there was no just reason for any delay in entering a final judgment with prejudice on Hertz’s
behalf and explained that the dismissal would not affect Davenport’s claims against the
remaining defendants.
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judgment in Terex’s favor, finding that Davenport had failed to make a reasonably diligent
inquiry to identify the manufacturer.
¶9. Davenport now appeals the circuit court’s orders granting summary judgment in favor
of Hertz and Terex and the circuit court’s certification of Hertz’s judgment pursuant to Rule
54(b).
STANDARD OF REVIEW
¶10. We review a circuit court’s grant of summary judgment de novo. O’Neal Steel v.
Millette, 797 So. 2d 869, 872 (¶8) (Miss. 2001) (citation omitted). Under Rule 56(c) of the
Mississippi Rules of Civil Procedure, summary judgment should be granted when the
“pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” “The evidence must be viewed in
the light most favorable to the party against whom the motion has been made.” Jacox v.
Circus Circus Miss. Inc., 908 So. 2d 181, 184 (¶4) (Miss. Ct. App. 2005) (citation and
quotation marks omitted). As such, “[t]he movant bears the burden of persuading the trial
judge that . . . (1) no genuine issue of material fact exists, and (2) on the basis of the facts
established, he is entitled to judgment as a matter of law.” Palmer v. Biloxi Reg’l Med. Ctr.
Inc., 564 So. 2d 1346, 1355 (Miss. 1990). However, once the movant meets his burden, “the
non-movant may not rest on the allegations in his pleadings, and may not rely on a ‘mere
scintilla’ of evidence to defeat summary judgment.” Fruchter v. Lynch Oil Co., 522 So. 2d
6195, 198 (Miss. 1988). “The party opposing the motion must rebut [the movant party’s
argument], if he is to avoid entry of an adverse judgment, by bringing forth probative
evidence legally sufficient to make apparent the existence of triable fact issues.” Smith v.
First Federal Savings & Loan Ass’n of Grenada, 460 So. 2d 786, 792 (Miss. 1984). As such,
“[s]ummary judgment is appropriate when the non-moving party has failed to make a
showing sufficient to establish the existence of an element essential to the party’s case, and
on which that party will bear the burden of proof at trial.” Karpinsky, 109 So. 3d at 89
(¶11).
DISCUSSION
I. Hertz’s Summary Judgment
¶11. Here, Davenport argues that the circuit court erred when it determined that summary
judgment in Hertz’s favor was proper. In support of his argument, he asserts that there are
genuine issues of material fact regarding whether the claims against Hertz were barred by the
statute of limitations. More specifically, Davenport argues that, since Hertz was substituted
pursuant to Rule 9(h) for one of the John Doe corporations listed in the original complaint,
the amended complaint, bringing Hertz into the action, related back to the date of the filing
of the original complaint pursuant to Rule 15(c)(2) of Mississippi Rules of Civil Procedure.
Davenport asserts that this is so because he was ignorant of Hertz’s identity when he filed
his original complaint.
¶12. Rule 9(h) provides:
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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.
In addition, Rule 15(c)(2) provides that “[a]n 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.” We note that Davenport’s negligent-distribution
claim against Hertz was subject to a three-year statute of limitations. Miss. Code Ann. § 15-
1-49 (Rev. 2012). However, Davenport did not move to substitute Hertz for one of the John
Doe corporations until after the three-year statute of limitations had expired.
¶13. Hertz argues that Rule 9(h) does not apply here because Davenport knew of Hertz’s
identity when he filed his original complaint, and, therefore, the amendment cannot relate
back pursuant to Rule 15(c)(2). Hertz also argues that, even if Davenport was ignorant of
Hertz’s identity at the time of the original filing, Rule 9(h) still does not apply because
Davenport did not exercise due diligence in trying to obtain such information.
¶14. Davenport responds that a plaintiff who knows a fictitious defendant’s true name may
still be ignorant so long as the plaintiff does not know the facts that give him a cause of
action against the fictitious party. Davenport cites Womble v. Singing River Hospital, 618
So. 2d 1252 (Miss. 1993) (overruled on other grounds), where the Mississippi Supreme Court
established that
[i]t is a principle of general application . . . that ignorance of the opposing
party for fictitious party practice extends beyond mere lack of knowledge of
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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.
Id. at 1267. However, we note that our supreme “[c]ourt has also acknowledged a
reasonable[-]diligence test [to be applied] when substituting unknown parties pursuant to
[Rule] 9(h).” Bedford Health Props. LLC v. Estate of Williams ex rel. Hawthorne, 946 So.
2d 335, 342 (¶13) (Miss. 2006).
¶15. At the summary-judgment hearing addressing Hertz’s motion, Davenport failed to
specify how he learned of Hertz’s involvement with the case. Rather than informing the
court of when and from whom Davenport had obtained the information provided within his
discovery response, Davenport’s counsel simply asserted that he immediately sought leave
of the court to substitute the fictitious party with Hertz after receiving Davenport’s response
to United Rentals’ interrogatory number 13 in August 2012.
¶16. The record reflects that in his original complaint, in the venue section, Davenport
stated that “Defendant Hertz’s registered agent [was] located in Rankin County, Mississippi.”
Davenport argues that this statement regarding Hertz was due to a typographical error
because his counsel initially thought that Hertz had distributed the man buggy to JKS. We
find it inexplicable how the inclusion of Hertz as a defendant in the venue section of the
original complaint could have been a typographical error if Davenport’s counsel initially
thought that the man buggy had been distributed by Hertz. Since Davenport named Hertz in
the venue section of his complaint but not in the caption, it seems more logical that the
9
failure to include Hertz as one of the named parties in the caption may have been an
oversight, but that is not the argument Davenport makes. In any event, it is not subject to
legitimate debate that Davenport’s explanation for why Hertz had been named in the venue
section of the original complaint—that his counsel initially thought that Hertz had distributed
the man buggy—proves that Davenport was aware of Hertz’s identity as that term is defined
in Womble, because at the time that Davenport filed his complaint, he knew of Hertz’s role
as a distributor of the man buggy.
¶17. Davenport also argues that knowing Hertz’s name was not enough because there are
several Hertz entities. We accept Davenport’s argument that there are several entities
bearing the Hertz name, but that does not excuse his failure to name Hertz as a party in his
original complaint. That could have been sorted out during the discovery process. As
previously mentioned, according to David’s affidavit, the man buggy contained a “visible”
Hertz label. It is well established in our jurisprudence that a plaintiff cannot use Rule 9(h)
to “sleep on [his] rights.” Doe v. Miss. Blood Servs. Inc., 704 So. 2d 1016, 1019 (¶13) (Miss.
1997). Therefore, Davenport’s argument that he did not know Hertz’s legal name is
unpersuasive. He possessed enough information to determine the legal entity that owned the
man buggy bearing the Hertz label. Therefore, there is no genuine issue of material fact that
Davenport was not ignorant of Hertz’s identity.
¶18. Even accepting Davenport’s argument that at the filing of his original complaint he
was ignorant of Hertz’s identity and involvement with the man buggy that injured him, he
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is still required to show that he made a reasonably diligent effort to learn the identity of the
John Does named in his complaint before the claims asserted in his amended complaint could
relate back to the time of the filing of his original complaint. And the “ reasonably diligent
inquiry into the identity of the unknown defendant [must be made] within the limitation
period” in order for a substitution under Rule 9(h) to allow a claim to relate back to the date
of the original pleading. Santangelo v. Green, 920 So. 2d 521, 525 (¶16) (Miss. Ct. App.
2006) (internal citations and quotations marks omitted). Hertz argues that Davenport failed
to show that he made such efforts. We agree.
¶19. Our supreme court has established that
[r]easonable diligence is a standard only for determining the efforts made to
discover the true identity of a named fictitious party under Rule 9(h). The
relation[-]back privilege provided for fictitious parties under Rule 15(c)(2)
requires the plaintiff to actually exercise a reasonably diligent inquiry into the
identity of the fictitious party.
Bedford, 946 So. 2d at 342 (¶13) (internal citations and quotation marks omitted). We note
that in Davenport’s response to Hertz’s motion to dismiss, he stated that “Plaintiff knew of
Defendant Hertz’s name in general at the time the [o]riginal [c]omplaint was filed.”
However, Davenport argues that he did not know the identity of the specific Hertz entity
involved with the man buggy and that prior to the expiration of the statute of limitations, he
conducted reasonable inquiries and investigations into what entities were involved in the
subject accident. He also argues that he received conflicting and incomplete information,
causing a lack of sufficient information to initially identify all of the real parties in interest.
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Davenport further argues that he did not have access to contractual agreements between the
pertinent parties, nor the means to readily obtain the true identities of the two John Doe
Corporations.
¶20. Hertz cites Doe, Bedford, and Santangelo in support of its argument that Davenport
failed to make a reasonably diligent effort to establish the identity of the fictitious parties.
On the other hand, Davenport attempts to distinguish those cases.
¶21. In Doe, the plaintiff filed a wrongful-death action against several defendants and
fictitious parties almost three years after her mother’s death, asserting that the negligent
blood transfusion given to her mother had infected her mother with HIV and, ultimately,
caused her death. Doe, 704 So. 2d at 1017 (¶4). One of the named defendants removed the
case to federal court. Id. at (¶5). While there, the plaintiff moved to dismiss the defendant
that had removed the case to federal court and asked for permission to name an additional
defendant. Id. Apparently, the plaintiff’s motion was granted and the case remanded back
to the circuit court. Id. On remand to the circuit court, the newly added defendant filed a
motion to dismiss, and the circuit court granted the motion. Id. The record reflected that the
plaintiff had made telephonic inquiries five days prior to the running of the statute of
limitations and only obtained limited information before the limitations period expired. Id.
at (¶3). The supreme court found that Rule 9(h) did not apply, as the plaintiff had failed to
exercise reasonable diligence in ascertaining the defendant’s true identity prior to the running
of the statute of limitations. Id. at 1019 (¶13). The supreme court reasoned that the
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plaintiff’s inquiry was not diligent and that Rule 9(h) does not provide an avenue for
plaintiffs to “sleep” on their rights. Id.
¶22. In Bedford, the Mississippi Supreme Court concluded that with a reasonably
diligent inquiry, the plaintiff could have discovered the proper name of the nursing home
since she visited the home several times in a month, the nursing home was across the street
from the church the plaintiff attended, and the plaintiff's deposition testimony revealed that
she knew the proper name. Bedford, 946 So. 2d at 343 (¶17). In Santangelo, this Court held
that the plaintiff was not reasonably diligent because the new defendant was her treating
physician, and her medical records would have revealed his identity. Santangelo, 920 So.
2d at 528 (¶21). As such, this Court ignored that the medical records were voluminous and
held by third parties and found that the plaintiff was not reasonably diligent because those
records, though voluminous, contained information regarding the identity of the fictitious
defendant. Id. at 526-27 (¶¶20-21).
¶23. Davenport argues that Doe, Bedford, and Santangelo are distinguishable from this
case inasmuch as in each of those cases, unlike here, the plaintiff failed to make a reasonably
diligent effort to ascertain the identity of the correct party. As an example, he points out that
in Doe the plaintiff waited nearly seven years to bring a cause of action against the new
defendants, had access to medical records that would have revealed the potential defendants’
identities, and never substituted the fictitious names with the alleged real parties in interest.
¶24. In response, Hertz argues that the aforementioned cases actually support its case
13
because they show the repercussions of a plaintiff not making any substantive and exhaustive
inquiries to ascertain the true identity of a negligent party prior to the statute of limitations
running. Hertz contends that Davenport had to know Hertz’s proper name in order to
determine the proper registered agent mentioned in the venue section of his original
complaint. Citing this Court’s decision in Santangelo, Hertz also contends that
Davenport’s assertion that there was a barrage of information when he tried to investigate
the case is unsubstantiated.
¶25. We agree with Hertz’s version of how the above cases relate to the matter at hand.
Unlike the plaintiff in Doe, Davenport has only offered general allegations of his
investigation and diligent efforts to ascertain the identity of the fictitious defendant. In
addition, like the plaintiff in Bedford, Davenport admitted that he knew Hertz’s proper name
at the time of the alleged incident and when he filed the original complaint. As stated, we
find that Davenport knew of Hertz’s identity and involvement with the man buggy prior to
his filing his original complaint, but assuming that we are incorrect on that point, we also
find that had Davenport exercised reasonable diligence, he could have ascertained Hertz’s
proper identity prior to filing his original complaint. In summary, we find that Davenport
failed to prove that he lacked knowledge of Hertz’s identity prior to the filing of his original
complaint, but even if he did, he failed the reasonable-diligence requirement to ascertain
Hertz’s identity. Therefore, we affirm the circuit court’s grant of summary judgment in favor
of Hertz, as the statute of limitations had run when Davenport substituted Hertz for one of
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the John Doe corporations pursuant to Rule 9(h) without the benefit of the relating-back
provision of Rule 15(c)(2).
II. Terex’s Summary Judgment
¶26. Davenport also argues that the circuit court erred in granting summary judgment in
favor of Terex. However, we find that this matter is improperly before this Court. The
summary-judgment order from which Davenport appeals dismisses Terex but fails to dismiss
the remaining defendants. This case involved multiple parties and claims in the circuit
court.5 Rule 54(b) provides, in pertinent part:
When more than one claim for relief is presented in an action . . . or when
multiple parties are involved, the court may direct the entry of a final judgment
as to one or more but fewer than all of the claims or parties only upon an
expressed determination that there is no just reason for delay and upon an
expressed direction for the entry of the judgment. In the absence of such
determination and direction, any order or other form of decision, however
designated[,] which adjudicates fewer than all of the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
The order granting summary judgment in favor of Terex did not include a Rule 54(b)
5
When Davenport appealed from the summary judgment in favor of Terex, the
following actions had occurred in his multi-party lawsuit: (1) On March 25, 2013, Davenport
had received a default judgment against Dynamic Services, as to liability only, with the issue
of damages to be reserved for a subsequent hearing to determine the amount of damages; (2)
On July 3, 2013, Davenport, by court order, had dismissed with prejudice his claims against
Defendant United Rentals; and (3) On October 28, 2013, the circuit court had granted
summary judgment in favor of Hertz and certified the judgment pursuant to Rule 54(b).
However, nothing in the record shows that JKS had been dismissed, although it had filed a
motion for summary judgment.
15
certification. Therefore, any appeal therefrom would be interlocutory, requiring permission
from the Mississippi Supreme Court, which was not obtained. Consequently, we must
dismiss the Terex appeal for lack of jurisdiction.
III. Rule 54(b) Final Judgment
¶27. Davenport also argues that the circuit court erred in granting Rule 54(b) certification
of the Hertz summary judgment. We apply an abuse-of-discretion standard when reviewing
a Rule 54(b) final judgment. Laird v. ERA Bayshore Realty, 841 So. 2d 178, 180 (¶7) (Miss.
Ct. App. 2003). “Where a summary judgment dismisses some of the parties to a lawsuit, but
not all of the parties, Rule 54(b) . . . governs.” Fairley v. George Cty., 800 So. 2d 1159,
1161 (¶4) (Miss. 2001). “A 54(b) certificate should be reserved for a case where a delay in
the appeal might result in prejudice to a party.” Cox v. Howard, Weil, Labouisse, Friedrichs
Inc., 512 So. 2d 897, 900 (Miss. 1987).
¶28. The core of Davenport’s argument here is that because the circuit court had not ruled
on his pending motion for reconsideration, it erred in certifying Hertz’s summary judgment
as a Rule 54(b) judgment. In support of his argument, Davenport contends that Hertz had
failed to provide any facts or evidence demonstrating any prejudice that it would suffer by
remaining as a party in the case until his motion for reconsideration was decided. Davenport
also insists that final judgments under Rule 54(b) are rare and that the courts are to consider
the following factors when determining whether a final judgment should be issued: “[1]
Whether the claims under review [are] separable from the others remaining to be adjudicated
16
and [2] whether the nature of the claims already determined was such that no appellate court
would have to decide the same issues more than once even if there were subsequent appeals.”
Reeves Constr. & Supply Inc. v. Corrigan, 24 So. 3d 1077, 1083 (¶16) (Miss. Ct. App. 2010)
(internal citations and quotations marks omitted). Davenport also contends that Hertz’s
argument that his claim against Hertz is in no way related to the other claims in this matter
is erroneous. As such, Davenport postulates that, but for Hertz’s involvement, the incident
would not have occurred, and Davenport would not have had claims against any of the other
parties.
¶29. In response, Hertz argues that the Rule 54(b) final judgment was proper based on
significant anticipated delay and the distinct nature of Davenport’s remaining claims against
other defendants. Hertz contends that it would be unfair for it to be forced to wait for a final
judgment. Hertz also argues that it is not relevant that the claims against the other defendants
may have risen out of common facts and that the measure is whether the claims against the
defendants are distinct in nature. Ind. Luberman’s Mut. Ins. v. Curtis Mathes Mfg., 456 So.
2d 750, 752-53 (Miss. 1984).
¶30. We agree with Hertz and find that Davenport’s motion for reconsideration did not
prevent the court from entering a final judgment in favor of Hertz. Davenport has failed to
offer any authority for his argument that a court errs by granting a motion for entry of a Rule
54(b) judgment while an opposing motion for reconsideration is still pending. Moreover, the
record reflects that the circuit court denied Davenport’s motion for reconsideration on the
17
same day that it granted Hertz’s Rule 54(b) final judgment. Therefore, we find that the circuit
court did not abuse its discretion in granting the 54(b) final judgment and dismissing the
claims against Hertz. This issue is without merit.
CONCLUSION
¶31. As to Davenport’s claims against Hertz, we find that summary judgment was properly
granted in favor of Hertz, as the statute of limitations had run, and Hertz was not properly
substituted pursuant to Rule 9(h), but even if it was, the relating-back provision of Rule
15(c)(2) did not apply because Davenport failed to establish that he utilized reasonable
diligence in an effort to timely identify Hertz as a fictitious party. Also, we cannot find that
the circuit court abused its discretion in granting a Rule 54(b) certification of Hertz’s
summary judgment. Consequently, we affirm the judgment of the Circuit Court of Rankin
County granting summary judgment in favor of Hertz. However, we dismiss the appeal of the
summary judgment granted to Terex as not a final, appealable judgment.
¶32. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
AFFIRMED AS TO HERTZ, AND THE APPEAL OF THE JUDGMENT IN FAVOR
OF TEREX IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, WILSON AND
GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT
PARTICIPATING.
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