E-Filed Document Feb 21 2014 14:40:09 2013-CA-01004 Pages: 19 IN THE SUPREME COURT OF MISSISSIPPI ARTHUR GERALD HUDSON and LINDA S. HUDSON APPELLANTS v. Cause No. 2013-CA-01004 LOWE S HOME CENTERS, INC. APPELLEE BRIEF OF APPELLEE, LOWE S HOME CENTERS, INC. Oral Argument Not Requested JAMES H. HEIDELBERG, MSB #2212 HEIDELBERG, STEINBERGER, COLMER & BURROW, P.A. POST OFFICE BOX 1407 PASCAGOULA, MS 39568-1407 PHONE: (228) 762-8021 FAX: (228) 762-7589 Email: Jheidelberg@hscbpa.com ATTORNEY FOR APPELLEE
IN THE SUPREME COURT OF MISSISSIPPI ARTHUR GERALD HUDSON and LINDA S. HUDSON APPELLANTS v. Cause No. 2013-CA-01004 LOWE S HOME CENTERS, INC. APPELLEE CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certified that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Arthur Gerald Hudson, Appellant; 2. Linda Hudson, Appellant; 3. Lowe s Home Center, Inc., its agents and employees, Appellee; 4. Chuck McRae, Esquire, Attorney for Appellants; 5. James H. Heidelberg, Esquire, Attorney for Appellee; 6. Ken Adcock Esquire, Attorney for Appellee; 7. Hon. Dale Harkey, Circuit Court Judge for Jackson County; 8. Hon. Kathy Jackson, Circuit Court Judge for Jackson County. Respectfully submitted, LOWE S HOME CENTERS, INC. BY: /s/ James H. Heidelberg JAMES H. HEIDELBERG MSB #2212 Attorney for Appellee -i-
TABLE OF CONTENTS Certificate of Interested Persons................................................... i Table of Contents.............................................................. ii Table of Authorities............................................................ iii Statement of the Issues........................................................... 1 Statement of the Case............................................................ 1 Summary of the Argument........................................................ 4 Argument..................................................................... 5 I. The statute of limitations for this claim has long ago expired and the action is time barred........................................... 5 A. The Court of Appeal s modified Judgment of Dismissal without prejudice in the first appeal of this action does nothing to affect the expiration of the statute of limitations............. 7 B. There was no equitable tolling of the statute of limitations........... 8 II. This appeal is a frivolous appeal of a frivolous circuit court filing and as such sanctions are proper................................. 10 A. Appellants Second or Amended Complaint was frivolous and resulting sanctions were proper...................... 11 B. Sanctions should be awarded for this frivolous appeal............... 12 Conclusion................................................................... 13 Certificate of Service.......................................................... 15 -ii-
TABLE OF AUTHORITIES CASE: PAGE: Davis v. Biloxi Public School Dist., 43 So. 3d 1135 (Miss. Ct. App. 2009)................. 10 Davis v. Biloxi Pub. School Dist., 110 So. 3d 321 (Miss. Ct. App. 2011)................... 12 Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224 (Miss 2005).................... 10 Hill v. Ramsey, 3 So. 3d 120 (Miss. 2009)......................................... 6 Holmes v. Coast Transit Authority, 815 So. 2d 1183 (Miss. 2002)......................... 7 Hudson v. Lowe s Home Centers, Inc., 98 So. 3d 1093 (Miss. Ct. App. 2012)............. 3, 8 In re Spencer, 985 So. 2d 330 (Miss. 2008)......................................... 11 Knight v. Knight, 85 So. 3d 832, 835 (Miss. 2012)..................................... 6 Lincoln Electric Co. v. McLemore, 54 So. 3d 833 (Miss. 2010).......................... 6 Peavey Electronics Corp. V. Baan U.S.A., Inc., 10 So. 3d 945 (Miss. 2009)................. 8 Tricon Metals & Services, Inc. v. Topp, 537 So. 2d 1331 (Miss. 1989).................... 11 Watters v. Stripling, 675 So. 2d 1242, (Miss 1996)..................................... 6 Whitten v. Whitten, 956 So. 2d 1093 (Miss. App. Ct. 2007).............................. 7 RULES: Mississippi Rules of Civil Procedure 4......................................... 2,5,6,7 Mississippi Rules of Civil Procedure11............................................. 11 Mississippi Rules of Civil Procedure 56........................................... 4,8 Mississippi Rules of Appellate Procedure 38..................................... 12,13 STATUTES: Miss. Code Ann. 15-1-49..................................................... 1,6 Miss. Code Ann. 15-1-5..................................................... 6 -iii-
STATEMENT OF THE ISSUES 1. The statute of limitations for the Appellants claim expired, and there was no equitable tolling of the statute of limitations. 2. This Court has previously determined, in a prior appeal of this case, the claim is time barred. 3. The Circuit Court was correct in assessing sanctions for filing a case that was barred by the statute of limitations. 4. The Appellants now file a frivolous appeal from a frivolous Circuit Court filing that had been previously decided against them and as such, additional sanctions are proper. STATEMENT OF THE CASE This lawsuit arises from a purported incident at a Lowe s Home Centers, Inc. store in Pascagoula, Mississippi, on May 5, 2006. (R.10) Appellant Arthur Gerald Hudson alleges he was 1 injured when he stepped out of the way of a forklift operated by a Lowe s employee. (R.10) Hudson did not immediately report the incident, but later filed suit. The three year statute of limitations prescribed by Miss. Code Ann. 15-1-49 was set to expire on May 5, 2009; however, the attorneys for the parties agreed to extend the statute of limitations by entering into three separate tolling agreements which extended the time to file suit to July 31, 2009. (R.15, 24, 28) A. THE FIRST CASE On July 27, 2009, Appellants filed a Complaint in the Circuit Court of Jackson County, Mississippi, which by law commenced the 120-day period for proper service of process under MRCP 1 Appellants change their story on appeal now claiming Hudson was hit with a forklift. (Appellants Brief, p. 1.) He never made such a claim in either of the two suits he filed, and even in this suit he claimed he pushed his daughter away and was pinned against two other individuals, but never claims he was hit. (R. 4) -1-
2 4. (R.24) Three days later, counsel for the Appellants alleged he attempted to serve Lowe s, not by serving the registered agent for Lowe s described in the Summons issued to them in that case, but rather by allegedly leaving a copy of the Summons and Complaint outside the office door of Lowe s counsel, Ken Adcock, during the lunch hour. (R.28) No attempt was made to serve Lowe s Registered Agent for Service of Process, Corporation Service Company, during the 120-day period, nor did the Appellants seek to extend the time to serve process. On November 24, 2009, the 120 day time period for service expired, and the statute of limitations resumed that day. Four days later, on November 28, 2009, the statute of limitations 3 expired. (R.24) It was not until January 20, 2010, 176 days after suit was filed, that Lowe s registered agent was served with process. (R.24) Lowe s filed a Motion to Dismiss, and the Circuit Court dismissed the case with prejudice on November 15, 2010. (R.30) The Court determined that if Appellants alleged attempted service on attorney Adcock was in fact made, it was invalid since it was made upon an improper person and in an improper manner, and that no good cause existed 4 for the failure to timely serve Lowe s. (R.30) An appeal of that case ensued and the Court of Appeals affirmed the dismissal, but modified the dismissal to be one without prejudice on February 21, 2012. (R.31) In its decision, the Court of 2 Hudson vs. Lowe s Home Centers, Inc., Cause No. 2009-00184(2), Circuit Court, Jackson County, Mississippi, appealed in Cause No. 2010-CA-0101958. 3 A fact decided by the first trial court and noted by both the Court of Appeals majority and dissent in the prior appeal, and by the trial judge in this case. (T. 11) 4 The attempted service by purportedly leaving a copy of a lawsuit outside the door of a law office during the lunch hour when the office was closed is very much disputed. The Appellants never made a return of any such service until faced with a dismissal of this case almost a year later. -2-
Appeals agreed with the trial court s determination of lack of service, and that the statute of limitations expired on November 28, 2009. The statute of limitations resumed on November 24, 2009, but expired four days later on November 28, 2009". (See Hudson v. Lowe s Opinion, 3, No. 2010-CA- 10958-COA, 98 So. 3d. 1093 (Miss. Ct. App. 2012)). It also made clear the affirmance with modification was of a procedural nature only in that 5 a Rule 4(h) dismissal is to be one without prejudice. (R.35) The Supreme Court denied the Appellants petition for writ of certiorari. B. THE SECOND (BUT SAME) SUIT Undeterred by the Circuit Court, the Court of Appeals and the Supreme Court, on January 18, 2013, Appellants filed a First Amended Complaint in the Circuit Court of Jackson County, Mississippi, the contents of which are virtually identical to the same case they had just lost. (R.9) 6 On February 5, 2013, Lowe s answered the First Amended Complaint asserting the Appellants claims were barred by the statute of limitations, had been previously litigated and dismissed by the Circuit Court and affirmed with modification by the Court of Appeals, and that the Supreme Court had denied certiorari, and the new lawsuit was actually the same suit, therefore was futile and frivolous. (R.17) Lowe s also filed a Motion for Summary Judgment. (R.23) The Appellants responded 5 The Court made clear the statute of limitations had expired and that any refiling would be a nullity and result in a dismissal due to the expiration of the statute of limitations. Hudson v. Lowe s, 98 So.3d. 1093, Miss. Ct. App. 2012). 6 While Appellants styled it a First Amended Complaint, it was neither the First Complaint nor did they amend anything since it was filed under a new cause number. It appears the Appellants filed a Complaint in October 2012 that appears in the record, but which was never served. (R. 3) -3-
claiming the Complaint filed on July 27, 2009, (the first case) preserved four(4) days to file a case after the entire appellate process was completed in the first case. (R.55) The Appellants are under the mistaken impression the Court of Appeals decision providing the dismissal is one without prejudice somehow allows them to resurrect the remaining four (4) days of the extended time to file 7 suit. (R.56) On May 13, 2013, the Circuit Court found the premise of the Appellants argument was without merit, confirming the statute of limitations had long ago expired, and granting Lowe s Motion for Summary Judgment dismissing the second case with prejudice. The Court also imposed 8 sanctions upon Appellants counsel for filing the frivolous second lawsuit. (R.80, 84) SUMMARY OF THE ARGUMENT This action is not only time barred by the statute of limitations as previously determined by both the Jackson County Circuit Court and the Mississippi Court of Appeals in the first case, and the Circuit Court in the second case, but it is a frivolous filing with no hope of success after the very same issue was decided by this Court. It is undisputed, and the law of the case, that service of process was not completed within the 120-day period and service on Lowe s agent for service of process was not made until long after the expiration of the statute of limitations. There was no additional time engrafted by the Court of Appeals in its decision to modified the dismissal to one 7 Appellant attempts to confuse the Court. This case is time barred not because they did not file suit within the applicable period, it is barred because they failed to serve process for 176 days, and the statute of limitations resumed after the 120 day period allowed for service after filing. 8 For clarity, Circuit Judge Kathy Jackson granted the Motion to Dismiss in the first case, and Circuit Court Judge Dale Harkey granted the Motion for Summary Judgment pursuant to Rule 56 of the M.R.C.P. in the second case. -4-
without prejudice that allows the Appellants to simply refile a time barred case. In addition, the sanctions issued by the trial court were proper, and sanctions should be imposed by this Court for the continued pursuit of this frivolous appeal. For these reasons, this Court should affirm the trial court s grant of summary judgment and assess appropriate sanctions. The fact the dismissal of the first (but same) suit was affirmed, but modified to be without prejudice does not mean this case is not time barred. The Court of Appeals decision does not turn back the process or statute of limitations clock to allow the Appellants to resurrect their suit by filing the same, but second, lawsuit three and a half years later on January 18, 2013. It was and remains time barred as of November 28, 2009. The Mississippi Supreme Court has expressly held that while the filing of a complaint temporarily tolls the statue of limitations, if service is not made upon the defendant within 120 days of filing as required by M.R.C.P. 4(h), the limitations period resumes running. Despite well settled law, the Appellants simply attempt to start over and reargue the same case they have already lost and had affirmed against them. ARGUMENT I. The statute of limitations for this claim has long expired and the action is time barred. The statute of limitations did not toll during the appeal of the first case between the parties, and in fact, expired long before the first case was dismissed and appealed. The Mississippi Supreme Court has recognized that filing a complaint temporarily tolls the statute of limitations and permits a plaintiff to refile a case only if the case is dismissed without prejudice and time remains on the 9 statute of limitations. Knight v. Knight, 85 So. 3d 832, 835 (Miss. 2012). However, there was no 9 Strangely, the Appellants cite this case and three others in their brief. All three support the Appellee. Knight says one can refile IF time remains on the statute of limitations, here it does not. Lincoln Electric Co. v. McLemore, 54 So.3d 833 (Miss. 2010) requires a complaint to -5-
time remaining on the statute of limitations in which Appellants could properly file what they term a First Amended Complaint. Filing a complaint tolls the statute of limitations, but if service is not made upon the defendant within the 120-day service period of Rule 4(h), the clock begins to run 10 again at the end of the 120 days. Watters v. Stripling, 675 So. 2d 1242, (Miss 1996). The incident which gave rise to this lawsuit occurred on May 5, 2006, and pursuant to the applicable statute of limitations in 15-1-49 expired on May 5, 2009. The Appellants relied on three tolling agreements whose validity is seriously questionable by virtue of 15-1-5 which provides the period of limitations in Chapter 15 of the Mississippi Code shall not be changed by contract and are absolutely null and void. Regardless of the validity of the tolling agreements and giving the Appellants every benefit of the doubt, they still waited until four days were left in the extended period of time to file a lawsuit. The first complaint was filed on July 27, 2009, four days before the expiration of the statute of limitations, giving credit to all three tolling periods. The limitation period was then tolled by 120 days. However, the Appellants did not serve, nor did they attempt to serve, Lowe s registered agent for service of process, Corporate Service Company ( CSC ) in Jackson, Mississippi, until January 20, 2010, some 176 days after the suit had been filed and therefore 56 days after the statute of limitations had expired. The statue of limitations under any calculation expired long before service was made in the first lawsuit, and the claim is likewise time barred here. be properly served to toll the statute of limitations, here it was not. Lastly, Hill v. Ramsey, 3 So.3d 120 (Miss. 2009) requires that unless process is timely served the statute of limitations is not tolled. 10 Appellants counsel here, Chuck McRae, dissented in that case and cites no additional authority for the proposition in this case. -6-
The statute of limitations period resumed on November 24, 2009, and expired four days later on November 28, 2009. It is well settled in Mississippi jurisprudence that while the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days as required by M.R.C.P 4(h), the limitations period resumes running at the end of the 120 days. See, Whitten v. Whitten, 956 So. 2d 1093 (Miss. App. Ct. 2007); Holmes v. Coast Transit Authority, 815 So. 2d 1183 (Miss. 2002). The Appellants cannot reasonably expect this Court to now hold the statute of limitations is to be tolled through three questionable tolling agreements, past the expiration of the 120-day service period, and then through an additional three year appellate process. This case is (and has been) at an end because the statute of limitations expired on November 28, 2009. A. The Court of Appeals modified Judgment of Dismissal without prejudice in the first case does nothing to affect the expiration of the statute of limitations. It is immaterial whether the Court of Appeals dismissal was with or without prejudice because there was no remaining time within the limitations period for the Appellants to timely file another complaint. It was decided by both the Circuit Court and the Court Appeals in the first case that the suit was barred by the statute of limitations. As such, the Court of Appeals dismissal without prejudice was purely procedural as it is the only remedy under Rule 4(h). Rule 4(h) of the Mississippi Rules of Civil Procedures states: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the Court s own initiative with notice to such party or upon motion. (emphasis added) After expressly holding the statute of limitations expired on November 28, 2009, the Court of Appeals dismissed the action without prejudice stating that pursuant to Rule 4(h), a dismissal without prejudice was appropriate regardless of the statute of limitations. Hudson v. Lowe s Home -7-
11 Centers, Inc., 98 So. 3d 1093 (Miss. Ct. App. 2012). In no way does the dismissal without prejudice allow the defendant to refile an action that is nevertheless barred by the statute of limitations. The Appellants argument that modification of the Circuit Court s decision by the Court of Appeals in the first case gives them additional time to file an amended complaint is without merit or any legal support. Recognizing the futility of pursuing this claim under the Court of Appeal s decision in the first case, Judge Carlson by separate opinion stated:... however, I must dissent as I would affirm the judgment to dismiss with prejudice since the statute of limitations had already expired thus barring this action. Id. (emphasis added) 12 Thus, although the Court of Appeals modified the dismissal to be one without prejudice, the Court also held the claim was nevertheless time barred by the statute of limitations. B. There is no equitable tolling of the statute of limitations. Equitable Estoppel does not apply to this case. Equitable estoppel requires the Appellants to prove, by a preponderance of the evidence, (1) they were induced by the conduct of Lowe s not to file their complaint sooner, (2) resulting in the claim being barred by the statute of limitations, and (3) that Lowe s knew or had reason to know such consequences would follow. Peavey Electronics Corp. V. Baan U.S.A., Inc., 10 So. 3d 945 (Miss. 2009). Even though already decided against them by the Court of Appeals, the Appellants attempt 11 To remind the Court, the first judgment was in response to a Motion to Dismiss, the second judgment now before the Court was entered pursuant to a grant of summary judgment by virtue of Rule 56 M.R.C.P. 12 In the event Appellants criticize this holding because it was contained in the dissent of Judge Carlson, the majority opinion states expressly, the statute of limitations resumed on November 24, 2009, but expired four days later on November 28, 2009. (See Opinion, 3.) -8-
to reargue they were induced by the conduct of Lowe s to not file their complaint sooner. If anything, Lowe s gave the Appellants every possible opportunity to file a complaint, even agreeing to three separate tolling agreements. Regardless, it is irrelevant since the Appellants did file within the time period agreed to by the parties in the third tolling agreement. It is not the Appellants failure to file a complaint that bars their claim, it is their lack of timely service upon Lowe s registered agent that restarted the statute of limitations and bars their claim. It is because of their lack of timely service that the statute of limitation s clock resumed and expired. Said succinctly, in spite of the fact Appellants filed their complaint within the extended time allotted, they did not serve process on Lowe s proper registered agent for process until 176 days after suit had been filed, and therefore 56 days after the statute of limitations expired. Appellants knew who the registered agent was as it was listed on their summons, and the location at which it could be served. There is no excuse for failing to timely serve Lowe s within the 120 days allowed under Rule 4(h). While the Supreme Court has suggested that inducement not to file may constitute an express representation that the claim will be settled without litigation, there were no express representations by the Appellee of that sort, nor was there any conduct that suggested the lawsuit was not necessary, and surely, arguendo, none that excused the failure to serve process for 176 days. There is no evidence in any of the two records involving this case of representations or conduct by 13 Lowe s that would now estop them from asserting the statute of limitations as a defense. This question was raised by the Appellants in their first appeal, and decided against them by the Court of 13 Lowe s emphasizes there is no evidence of this assertion cited in the Appellants brief. While there may be argument of counsel, there is nothing in the record to support this argument. The absence of any record citation speaks volumes. -9-
Appeals in the first case. This issue cannot now be relitigated. II. The present litigation involves a frivolous appeal of a frivolous case and as such sanctions are proper. The issues in the second case were previously decided by the Circuit Court, affirmed by the Court of Appeals, and certiorari denied by the Supreme Court in the first case. Four identities are required to establish res judicata: (1) identity of the subject matter, (2) identity of the cause of action, (3) identity of the parties, and (4) identity of the quality or character of person against whom the claim is made. Davis v. Biloxi Public School Dist., 43 So. 3d 1135 (Miss. Ct. App. 2009). The doctrine of res judicata bars a second action between the same parties on the same subject matter directly involved in the prior action. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224 (Miss. 2005). In this appeal, the subject matter of this case is the same as the subject matter of the first case. The subject matter in both cases directly involves the issue of whether or not the cause of action is barred by the statute of limitations. Res judicata also requires that the identity of the cause of action be the same. There is no dispute the first and second cases deal with the same cause of action. To satisfy the identity of the parties element, strict identity of the parties is not necessary. Id. A non-party defendant can assert res judicata as long as it is in privity with a named defendant. Id. In the present case, the identical parties are involved. In both suits Arthur Gerald Hudson and Linda Hudson named Lowe s Home Center, Inc. as the defendant. The identity of the quality or character of person against whom the claim is made must also be established. In the present case, the character and status of Lowe s Home Center has remained intact. It is the same company that was named in the first lawsuit filed by the Hudsons in the Circuit Court of Jackson County. Not only should res judicata apply and the claims be precluded, this is in -10-
fact evidence that establishes the filing of this second case is frivolous and the appeal from the Circuit Court is also frivolous. A. Appellants Second or Amended Complaint is frivolous and the resulting sanctions were proper. Under Miss. R.Civ. P. 11, the law clearly provides for the award of reasonable attorney s fees and expenses where a pleading is frivolous or filed for the purposes of harassment or delay. In re Spencer, 985 So. 2d 330 (Miss. 2008). A pleading or motion is frivolous within the meaning of M.R.C.P. 11 only when the pleader has no hope of success. Tricon Metals & Services, Inc. v. Topp, 537 So. 2d 1331 (Miss. 1989) (emphasis added) As the trial court stated in its Order Granting Summary Judgment, there is no question the statute of limitations applicable to the claim of the Appellants expired on November 28, 2009. (R.83-85). This was also determined by the Circuit Court in the first case and acknowledged by the Mississippi Court of Appeals in affirming the dismissal. In Tricon, the court addressed when a claim has no hope of success stating: Our question is whether in such context of Rule 11 sanctions may be imposed where the defendant has a complete defense to the plaintiff s claim. The answer must surely be Yes. If a defendant has a complete defense, then it follows that a plaintiff has no hope of success. It is the same as if plaintiff filed and pursued a claim that was clearly barred by the statute of limitations. 537 So. 2d at 1336. (Emphasis added) As the trial court stated, [w]here an action is barred by the statute of limitations a plaintiff has no hope of success. (R.81). That is certainly the case here - Lowe s has a complete defense. There are no alternative remedies. The Appellants claim is absolutely barred by the statute of limitations and the filing of an identical law suit well after the statute had run and the first case had -11-
been through the complete appellate process is by any definition frivolous. Despite Appellants contention, Appellee requested sanctions in its Answer (R. 18-19), and in its Motion for Summary Judgment in this case. (R.25). Appellants were allowed to present evidence and law which, with no success, attempted to negate the finding of frivolousness in the form of a Response in Opposition to Motion and Submission Regarding Sanctions. (R.75). Further, it is implicit in Rule 11's language that the Court may act on its own initiative with reference imposing sanctions. Id. As such, sanctions and award of reasonable attorney s fees by the trial court 14 were proper and should be affirmed. B. Additional sanctions should be ordered for the present frivolous appeal. Sanctions should be imposed for this frivolous appeal. Under Miss. R. App. P. 38, in a civil case, if the Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee. The question that presents is whether a reasonable person would have any hope for success. Davis v. Biloxi Pub. School Dist., 110 So. 3d 321 (Miss. Ct. App. 2011). In Davis, after being terminated from his teacher s aide position, Davis filed a complaint in Harrison County Circuit Court in 2004, which the circuit judge subsequently dismissed after finding that Davis was not entitled to judicial review because he was an at-will employee. Id. Davis appealed, and the appellate court affirmed the decision of the circuit court dismissing the complaint. Id. Davis filed a second suit in 2007, asserting the same allegations against the same defendants as 14 The Appellants were given an additional time period to address the issue of sanctions by the trial court and they completely failed to avail themselves of the opportunity which in essence concedes this point. (R. 82.) -12-
the first suit. Id. The circuit judge dismissed Davis s complaint, holding that the claims raised were essentially the same legal claims which were raised in the first legal action and found that the claims asserted which were not otherwise barred by collateral estoppel and/or res judicata were barred by the statute of limitations. Id. Davis again filed suit in Harrison County County Court again alleging wrongful termination. Id. The county court issued a judgment of dismissal and held that Davis claims were barred by collateral estoppel, res judicata, and the applicable statute of limitations. Id. Davis was also sanctioned for filing a frivolous lawsuit. Id. The Court of Appeals affirmed. Similar to the facts in Davis, the Appellants are appealing, for a second time, a case they know is barred by res judicata and the statute of limitations. This is a frivolous appeal of a frivolous case that has already been decided twice by a trial court and by this Court on a previous occasion. 15 A reasonable person (and most certainly his lawyer) knew there was no hope of success. Just damages and double costs should be awarded to the Appellee pursuant to Rule 38. CONCLUSION Binding decisions of this Court establish the statute of limitations had long expired and the filing of the second complaint was frivolous. Appellants were barred by the statute of limitations from refiling a previously decided claim. Sanctions were properly awarded by the trial court and additional sanctions should be imposed for Appellants frivolous appeal of a frivolously filed claim. Accordingly, Lowe s respectfully requests this Court affirm the trial court s judgment and assess sanctions as it deems proper. 15 The trial court s Order held it was beyond question that the statute of limitations applicable to the claim of Plaintiffs expired in November 2009. There was no objective hope of success, and that the question had been conclusively adjudicated prior to the filing of the instant complaint. (Emphasis, the Court s) (R. 81) -13-
THIS, the 21st day of February, 2014. Respectfully submitted, LOWE S HOME CENTERS, INC. BY: /s/ James H. Heidelberg JAMES H. HEIDELBERG, MSB #2212 HEIDELBERG, STEINBERGER, COLMER & BURROW, P.A. POST OFFICE BOX 1407 PASCAGOULA, MS 39568-1407 PHONE: (228) 762-8021 FAX: (228) 762-7589 Email: Jheidelberg@hscbpa.com -14-
CERTIFICATE OF SERVICE I, James H. Heidelberg, do hereby certify that I have filed a true and correct copy of the above and foregoing Brief of Appellee with the Court s electronic filing system which automatically sent notification to: Chuck R. McRae, Esq. 416 East Amite Street Jackson, MS 39201 Via Electronic Filing AND, served a copy via U.S. Mail to: Hon. Dale Harkey Jackson County Circuit Court P.O. Box 998 Pascagoula, MS 39568 Via U.S. Mail This, the 21st day of February, 2014. /s/ James H. Heidelberg JAMES H. HEIDELBERG -15-