                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2002-CA-00082-SCT

SUSAN RENEE LEE, GENERAL GUARDIAN OF
EMILY RENEE LAWSON, A MINOR AND SOLE
WRONGFUL DEATH BENEFICIARY OF RANDY
CLAY LAWSON, DECEASED

v.

SHERIFF ANDREW THOMPSON, INDIVIDUALLY,
SHERIFF ANDREW THOMPSON, IN HIS OFFICIAL
CAPACITY AS SHERIFF OF COAHOMA COUNTY,
THE COAHOMA COUNTY SHERIFF'S
DEPARTMENT, TRACY A. VANCE, NORMAN
HARRIS, JERRY HAMPTON, SAMMIE DAVIS,
SABREA L. BROOM, ADDIE EVANS, RAECHELE D.
SCOTT, AND EVERETT L. LANGDON, IN BOTH
THEIR INDIVIDUAL AND OFFICIAL CAPACITIES

DATE OF JUDGMENT:                                12/13/2001
TRIAL JUDGE:                                     HON. LARRY O. LEWIS
COURT FROM WHICH APPEALED:                       COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                         H. WESLEY WILLIAMS, III
                                                 JEFFREY STEPHEN MOFFETT
ATTORNEY FOR APPELLEES:                          DAVID D. O'DONNELL
NATURE OF THE CASE:                              CIVIL - WRONGFUL DEATH
DISPOSITION:                                     AFFIRMED - 09/11/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Aggrieved by the trial court’s dismissal of her wrongful death suit brought on behalf of her minor

daughter against various Coahoma County defendants as a result of the death of her minor daughter’s father

while he was an inmate at the Coahoma County Jail, Susan Renee Lee appeals to this Court. Finding no
reversible error, we affirm the judgment of the Circuit Court of Coahoma County, though for reasons

different than those stated by the trial court.

                             FACTS AND PROCEDURAL HISTORY1

¶2.     Susan Renee Lee (Lee) is the former wife of Randy Clay Lawson (Lawson). Emily Renee Lawson

(Emily), is the minor daughter of Lee and Lawson.

¶3.     In the early morning hours of June 4, 1999, an extremely intoxicated Lawson appeared at Lee’s

home in an effort to reconcile. Not surprisingly, it did not work. An altercation erupted, and Lee requested

assistance from a neighbor who then fell victim to Lawson’s wrath, receiving several injuries inflicted by

Lawson. Responding to a disturbance call as a result of the altercation, officials from the Coahoma County

Sheriff’s Department dutifully arrived at the Lee home, but Lawson, evidently unscathed from the incident,

had by then left the scene. It took nothing more than a tag number and vehicle description for law

enforcement to apprehend Lawson. By 6:20 a.m. on June 4th, two Coahoma County deputies arrived with

Lawson at the Coahoma County Jail. According to the various pleadings, several witnesses verified that

at the time Lawson arrived at the jail, he was “drunk and rowdy,” but he was not injured. A little over nine

hours later, at 3:40 p.m., Lawson was discovered dead – hanging from the top bunk in his jail cell.

¶4.     Upon a petition being filed in the Chancery Court of Coahoma County on June 15, 1999, twelve

days after Lawson’s death, Maggie L. Baty (Baty), Lawson’s mother, was appointed as administratrix of

Lawson’s estate by order entered the same day. The very next day, Baty commenced an action in Civil

Action No. 14-CI-99-0038, on the docket of the Circuit Court of Coahoma County, “Maggie L. Baty,

Administratrix of the Estate of Randy C. Lawson and on behalf of all Wrongful Death

        1
          Since this case is before the Court on an appeal of the trial court’s order granting a motion to
dismiss, we glean these facts from the various pleadings in the record before us and accept the allegations
as true for the purposes of this appeal.

                                                     2
Beneficiaries, Plaintiff,        versus Andrew Thompson, Sheriff of Coahoma County,

Mississippi; John Doe(s), Jailer(s) of Coahoma County Jail; and Coahoma County,

Mississippi, Defendants.” In this civil action, Baty asserted both federal and state claims against the

defendants for “failing to prevent the suicide” of Lawson. The only reference to the Mississippi Tort Claims

Act (MTCA), Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002 & Supp. 2003), is found in paragraph 11

(page 4) of the complaint, which states:

                The actions and/or inactions of the Defendants itemized and described hereinabove
        also constitute torts under state law. All such state claims will be itemized and specifically
        pled once the ninety (90) day period has run as required under Miss. Code Ann. § 11-46-
        11(1).2

The suit also sought, inter alia, $5,000,000 in compensatory damages from Sheriff Thompson, the John

Doe jailers and Coahoma County (County).

¶5.     On June 25, 1999, only nine days after Baty had commenced the civil suit as administratrix of

Lawson’s estate, the Chancery Court of Coahoma County, in a different cause from that of the estate

matter, entered a decree, pursuant to a petition filed by Lee, appointing Lee as the general guardian of

Emily’s estate due to Emily's having an unliquidated claim for damages arising out of her father’s death.




        2
         Miss Code Ann. § 11-46-11(1) states in pertinent part:

                 After all procedures within a governmental entity have been exhausted, any person
        having a claim for injury arising under the provisions of this chapter against a governmental
        entity or its employee shall proceed as he might in any action at law or in equity; provided,
        however, that ninety (90) days prior to maintaining an action thereon, such person shall file
        a notice of claim with the chief executive officer of the governmental entity.....

Although Baty asserted in paragraph 11 of the complaint that she would itemize the state claims once this
90-day period had run, there is nothing in the record to indicate that she made any effort to comply with
this statutory notice requirement “prior to maintaining [the] action.”

                                                      3
¶6.     Although Emily had been born more than 11 months after the marriage of Lee and Lawson, Baty

disputed the allegation that her son was Emily’s father. Pursuant to a chancery court order entered in the

estate cause on September 8, 1999, Lee and Emily submitted to DNA testing and ReliaGene Technologies,

Inc. (ReliaGene) of New Orleans, Louisiana, performed the DNA analysis. The resulting ReliaGene report

revealed that Emily was indeed Lawson’s biological daughter.

¶7.     On March 23, 2000, Lee, as Emily’s natural mother and as duly appointed general guardian of

Emily’s estate, filed in the chancery court estate cause a motion to have Baty removed as administratrix of

Lawson’s estate and to have Lee substituted as the administratrix. On April 13, 2000, Baty and Lee, by

and through their respective counsel, agreed to the chancellor’s entry of an order removing Baty and

substituting Lee as the administratrix of Lawson’s estate.

¶8.     Although we cannot ascertain the exact date from the record, we do know that somewhere along

the way, the Coahoma County defendants removed the Baty action from circuit court to federal court. We

find in the record an opinion dated August 14, 2000, and signed by the Honorable Neal B. Biggers, Jr.,

Chief Judge for the United States District Court for the Northern District of Mississippi.3 Judge Biggers’s

opinion was entered pursuant to a previously filed motion to dismiss by the Coahoma County defendants,

and in the opinion, reference is made to the fact that Lee was substituted for Baty as the administratrix of

Lawson’s estate and thereafter filed an amended complaint on May 18, 2000. Likewise, the federal court

opinion sets out that the defendants were asserting that Lawson had hung himself while Lee on the other

hand contended in her amended complaint that Lawson “was killed by the sheriff’s department of Coahoma



        3
         This opinion was entered in that certain case styled “Susan Renee Lee, Administratrix of the
Estate of Randy C. Lawson and on behalf of all wrongful death beneficiaries, Plaintiff v.
Andrew Thompson, et. al., Defendants,” and being cause number 2:99CV136-EMB on the docket
of the United States District Court for the Northern District of Mississippi, Delta Division.

                                                     4
County by a severe beating administered by one or more deputies.”4 Judge Biggers found that Lee’s

amended complaint failed to sufficiently allege a 42 U.S.C. § 1983 claim against Coahoma County and

Sheriff Thompson, and that as to the state law claims, Miss. Code Ann. § 11-46-9(1)(m) barred any claim

against Sheriff Thompson and Coahoma County. Pursuant to the opinion and the same-day entry of a final

judgment consistent with the opinion, Judge Biggers dismissed Lee’s amended complaint with prejudice;

however, by order dated October 20, 2000, the final judgment was amended to provide that the dismissal

was without prejudice and that Lee would thus have thirty days from and after October 20, 2000, in which

to file an amended complaint in the federal court action.

¶9.     Rather than filing an amended complaint in the federal court action pursuant to that court’s order

of October 20, 2000, Lee chose to instead file a new state court complaint. On March 28, 2001, 159

days after being allowed by the federal court to amend her federal court pleadings within 30 days, Lee

opted to file this new action in the Circuit Court of Coahoma County. This cause was styled “Susan

Renee Lee, General Guardian of Emily Renee Lawson, A Minor and Sole Wrongful Death

Beneficiary of Randy Clay Lawson, Deceased, Plaintiff vs. Sheriff Andrew Thompson,

Individually, Sheriff Andrew Thompson, in His Official Capacity as Sheriff of Coahoma

County, The Coahoma County Sheriff’s Department, Tracy A. Vance, Norman Harris, Jerry

Hampton, Sammie Davis, Sabrea L. Broom, Addie Evans, Raechele D. Scott, and Everett L.

Langdon, in Both Their Individual and Official Capacities, and John Does 8-10, In Both




        4
          Although Dr. Steven Hayne performed the autopsy on Lawson on June 5, 1999, one day after
his death, and although Lee later asserted that the autopsy revealed Lawson had numerous injuries, such
as defensive posturing wounds and bruising at the base of the skull, which would be inconsistent with
suicide, these facts were not alleged in the initial circuit court complaint filed on June 16, 1999.

                                                    5
Their Individual and Official Capacities, Defendants,” and was assigned cause number 14-CI-

01-0028 on the docket of that court.

¶10.    In this new circuit court complaint, Lee alleged, inter alia, intentional acts by the Coahoma County

defendants to kill Lawson and to destroy evidence. More specifically Lee asserted in her complaint claims

of (1) assault and battery; (2) wrongful death; (3) outrage and/or infliction of emotional distress; (4) civil

conspiracy and state constitutional claims; (5) gross negligence; (6) punitive damages; and, (7) vicarious

liability.5 A review of this complaint also reveals the following allegations:

                41. Dr. Hayne noted that defensive posturing wounds could not be excluded as
        the cause of the wounds and that he had not been supplied with the ligature device alleged
        to have caused the injuries. Furthermore, there is no indication that Dr. Hayne was ever
        supplied with the orange jumpsuit, which Mr. Lawson was wearing at the time of his
        demise. In fact, this jumpsuit was suspiciously and wrongfully disposed of by the Sheriff’s
        Department.

                42. Dr. Hayne was also never supplied with the broken dental plate which was
        found next to Mr. Lawson’s body. Both [two sheriff’s deputies] specifically recall that this
        plate had the teeth smashed inward.




        5
          This time around, Lee made it clear in the complaint that she was not asserting “any cause of action
arising under federal law or the United States Constitution, nor is it [her] intention...to bring any such claim.”

                                                        6
¶11.    On April 23, 2001, all defendants joined together to file a motion to dismiss Lee’s complaint.6 As

grounds for the motion, the defendants asserted, inter alia, (1) that Lee’s claims were exclusively governed

by the MTCA; (2) that the claims were barred by the applicable statute of limitations; (3) that Lee failed

to timely file this action pursuant to the MTCA; (4) that the defendants enjoyed sovereign immunity; (5) that

Lee’s claims were barred under the MTCA since Lawson was an inmate at the time of his death; (6) that

the Coahoma County defendants were performing discretionary functions at the time of the relevant events,

thus barring the claims under the MTCA; and that (7) Lee had failed to state any claim upon which relief

could be granted to her. On December 13, 2001, the circuit judge entered his 4-page Order Granting

Motion to Dismiss. In his order, the trial judge addressed, inter alia, Lee’s claims under the MTCA, Lee’s

claims for intentional torts, and the statute of limitations issue. The trial court concluded that Lee stood in

the place of Lawson, and thus subject to all available defenses which could be asserted against Lawson

had he lived. In taking this approach, the trial court concluded that the jail inmate exception found in Miss.

Code Ann. § 11-46-9(1)(m) (Rev. 2002) applied as to the County and its employees acting within the

course and scope of their employment or duties, thus leaving potentially viable only the assault and battery



        6
          Although the motion does not refer to any particular rule as the basis for the motion, a careful
reading of the motion makes it abundantly clear that this is a Miss. R. Civ. P. 12(b)(6) motion. Likewise,
the parties in their briefs before this Court correctly direct us toward the applicable standard of review on
Miss. R. Civ. P. 12(b)(6) motions to dismiss. To be absolutely cautious, however, it appears that the
circuit judge had before him at the time of ruling on the motion, matters outside the circuit court pleadings,
such as some of the federal court papers, including Judge Biggers’s opinion and final judgment. Thus,
pursuant to the provisions of Miss. R. Civ. P. 12(b)(6), the Comment thereunder, and our applicable case
law, we will treat this motion to dismiss as a motion for summary judgment to be disposed of in accordance
with the provisions of Miss. R. Civ. P. 56. See Jones v. Jackson Pub. Schs., 760 So.2d 730 (Miss.
2000); Palmer v. Biloxi Reg’l Med. Ctr., Inc., 649 So.2d 179 (Miss. 1994). Finally, since Miss. R.
Civ. P. 56 treatment is proper, any error committed by the learned circuit judge in ruling on this motion
without a hearing was harmless beyond any doubt. See Adams v. Cinemark USA, Inc., 831 So.2d
1156, 1162 (Miss. 2002). Whether the motion is treated as one under Miss. R. Civ. P. 12(b)(6) or 56,
our standard of review is the same – de novo.

                                                      7
claim found in count I of the complaint. In that count, Lee alleged that the Coahoma County defendants,

“acting intentionally and/or with reckless disregard for the safety of [Lawson], either beat [Lawson] to

death or allowed him to be beaten to death” thus causing the defendants to have been “engaged in

intentional criminal acts which were clearly outside the scope of the officers’ employment with the

[County].” While allowing count I of the complaint to remain viable inasmuch as the defendants did not

enjoy MTCA immunity for these alleged intentional acts outside the scope of their employment, the trial

court dismissed count I as barred by Miss. Code Ann. § 15-1-35 (Rev. 2003) (statute of limitations

covering intentional torts), the minors’ savings statute (Miss. Code Ann. § 15-1-59 (Rev. 2003))

notwithstanding. As an additional ground for dismissal, the trial court also found that the pendency of the

prior state court and federal court actions surrounding Lawson’s death did not toll the running of the

applicable statutes of limitation.

¶12.    Lee has timely appealed to us seeking relief from the circuit court dismissal, and she raises the

following issues for this Court's consideration:

        I.       WHETHER THE CIRCUIT COURT ERRED IN FINDING THE
                 MINORS SAVINGS CLAUSE CODIFIED AS MISS. CODE ANN. §
                 15-1-59 DID NOT APPLY TO AN ACTION FOR WRONGFUL
                 DEATH WHERE THE DECEDENT DIED ON JUNE 4, 1999, AND
                 THE MINOR PLAINTIFF FILED HER COMPLAINT IN THE
                 PRESENT ACTION ON MARCH 28, 2001, AFTER A
                 PREDECESSOR ACTION WAS DISMISSED WITHOUT
                 PREJUDICE FROM FEDERAL COURT ON OCTOBER 23, 2000.

        II.      WHETHER THE CIRCUIT COURT ERRED IN DISMISSING ALL
                 BUT COUNT I OF THE PLAINTIFF’S COMPLAINT PURSUANT
                 TO MISS. CODE ANN. § 11-46-9(1)(m) WHEN THE COMPLAINT
                 CONTAINED ALLEGATIONS THAT THE DEFENDANTS’
                 CONDUCT CONSTITUTED MALICE OR A CRIMINAL OFFENSE,
                 AND SUCH ALLEGATIONS ARE SUFFICIENT TO SUPPORT A
                 FINDING THAT AN EMPLOYEE’S ACTIONS WERE TAKEN



                                                    8
                OUTSIDE THE SCOPE OF EMPLOYMENT PURSUANT TO MISS.
                CODE ANN. §§ 11-46-5(2) and 11-46-7(2).

                                              DISCUSSION

¶13.    We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion.

Arnona v. Smith, 749 So.2d 63, 65-66 (Miss. 1999). As such, we sit in the same position as did the

trial court. The scope of review of a motion to dismiss is that the allegations in the complaint must be taken

as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable

to prove any set of facts in support of her claim. Brewer v. Burdette, 768 So. 2d 920, 922 (Miss.

2000). See also Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss. 1990); Grantham v. Miss.

Dep't of Corrections, 522 So.2d 219, 220 (Miss. 1988). Additionally, as noted earlier, even though

we treat the Rule 12(b)(6) motion as one filed under Rule 56, we still apply a de novo standard of review.

Quinn v. Estate of Jones, 818 So.2d 1148, 1150 (Miss. 2002). See also Baptiste v. Jitney

Jungle Stores of Am., Inc., 651 So.2d 1063, 1065 (Miss. 1995) (citing Short v. Columbus Rubber

& Gasket Co., 535 So.2d 61, 63 (Miss. 1988)).

¶14.    The complaint filed by Lee on March 28, 2001, alleged seven counts against the county and the

sheriff and his employees in both their official and individual capacities, including a claim for assault and

battery and a claim for wrongful death. However, Lee brought all of the claims under the auspices of the

Mississippi wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp. 2003). A wrongful death action

is a derivative action brought by the beneficiaries who are subject to all of the defenses that would have

been available against the decedent. Choctaw, Inc. v. Wichner, 521 So. 2d 878, 882 (Miss. 1988).

¶15.    We will address these issues in a somewhat different order and fashion than Lee presents them to

us.


                                                      9
¶16.    Miss. Code Ann. § 11-46-9(1)(m) provides in pertinent part:

        (1) A governmental entity and its employees acting within the course and scope of their
        employment or duties shall not be liable for any claim:
               (m) Of any claimant who at the time the claim arises is an inmate of any
               detention center, jail, workhouse, penal farm, penitentiary or other such
               institution, regardless of whether such claimant is or is not an inmate of any
               detention center, jail, workhouse, penal farm, penitentiary or other such
               institution when the claim is filed;

First, there is no doubt that the jail inmate provisions of the MTCA apply in this case as to any non-

intentional/non-criminal acts alleged to have been committed upon inmate Lawson by the Sheriff and/or his

deputies while in the course and scope of their employment with Coahoma County. Conrod v. Holder,

825 So.2d 16, 18-19 (Miss. 2002); Liggans v. Coahoma County Sheriff’s Dep’t, 823 So.2d 1152,

1154-56 (Miss. 2002); Wallace v. Town of Raleigh, 815 So.2d 1203, 1207-09 (Miss. 2002). Thus,

while the trial court correctly dismissed the claims for alleged negligent acts by the employees, the trial court

erred to the extent that it dismissed all but count I of the complaint, keeping in mind that in each count of

the complaint, Lee realleged and readopted all previous allegations in the complaint, which would include

the allegations of intentional criminal acts. Thus as to these intentional acts, Lee, for and on behalf of her

daughter and Lawson’s sole wrongful death beneficiary, Emily, still had viable claims, not under the MTCA,

but under our wrongful death statute. See Miss. Code Ann. §§ 11-46-5(2) & -7(2). However, this does

not end the inquiry as to whether Lee is still in court.

¶17.    We now consider the statute of limitations issue.

¶18.    First of all, we must keep in mind that Lawson’s sole wrongful death beneficiary, his daughter,

Emily, is a minor. Mississippi has a minors’ savings statute, Miss. Code Ann. § 15-1-59 (Rev. 2003),

which provides:




                                                      10
        If any person entitled to bring any of the personal actions mentioned shall at the time at
        which the cause of action accrued, be under the disability of infancy or unsoundness of
        mind, he may bring the action within the times in this chapter respectively limited, after his
        disability shall be removed as provided by law. However, the saving in favor of persons
        under disability of unsoundness of mind shall never extend longer than twenty-one (21)
        years.

The trial court held that this statute only applied to actions mentioned in Chapter One, Title 15 of the

Mississippi Code, Cole v. State, 608 So. 2d 1313 (Miss. 1992), thus finding Miss. Code Ann. § 15-1-59

did not apply to wrongful death actions. Arender v. Smith County Hosp., 431 So. 2d 491 (Miss.

1983). However, as Lee correctly points out, in Thiroux v. Austin, 749 So. 2d 1040 (Miss. 1999), this

Court undermined the Arender decision.

        In Arender v. Smith County Hosp., 431 So.2d 491 (Miss. 1983), this Court held that
        the minors saving clause would not apply to a wrongful death claim. Arender erroneously
        relied on the 1895 case of Foster v. Yazoo & M.V.R. Co., 72 Miss. 886, 18 So. 380
        (1895). Foster, in finding that the savings clause did not apply to a wrongful death action,
        interpreted a predecessor wrongful death statute containing its own statute of limitation,
        and a predecessor savings clause with slightly different wording than the one applicable in
        Arender. The savings clause at issue in Foster applied to "any of the personal actions
        before mentioned." Miss. Code of 1892 § 2746 (emphasis added). Therefore, the
        Court reasoned that it did not apply to a wrongful death action, as the wrongful death
        statute was not "before mentioned." At that time, the wrongful death cause of action was
        provided its own statute of limitation, which did not include a savings clause for minors. On
        the contrary, the current wrongful death statute, and the one in effect at the time of
        Arender, does not contain its own statute of limitation. Therefore that statute is subject
        to the provisions regarding limitations of actions in Title 15 of the Mississippi Code. See
        Miss. Code Ann. § 11-7- 13 (Supp. 1999). Also, the savings clause interpreted in
        Foster no longer contains the phrase "before mentioned" as it did at the time of Foster,
        which limited its application to the actions provided for in the same Chapter. There is no
        question now that the savings clause, set out in § 15-1-59 of the
        Mississippi Code, applies to a wrongful death action.

Thiroux, 749 So. 2d at 1041 (emphasis added).




                                                     11
¶19.    Because this Court has held the minors' savings clause does toll the statute of limitations on a

wrongful death action, the trial court erred in finding § 15-1-59 did not apply to wrongful death actions.7



¶20.    Our recent decision in Curry v. Turner, 832 So.2d 508 (Miss. 2002), is also applicable here.

In Curry, Hart Turner killed Everett Curry by shooting Curry in the head execution-style while Curry was

pumping gas at a convenience store which Turner and another man had decided to rob. The thrust of our

decision addressed Miss. R. Civ. P. 15 amendments and whether an amended complaint related back to

the date of the original pleading under Miss. R. Civ. P. 15(c) for the purpose of tolling the applicable statute

of limitations. In Curry, we discussed Thiroux and Arender and then we stated:

                It stands to reason that the wrongful death statute’s lack of a savings clause is also
        no longer a viable excuse to preclude the use of § 15-1-59 by Everett Curry’s minor
        children as the Thiroux court found that the minor savings statute applied. However, the
        Thiroux majority did not address the significance of the wrongful death statute’s
        requirement that there only be one suit for recovery. Nor did the majority address whether
        the children’s guardian was a person in esse, allowing the statute of limitations to run
        against him as representative of the minor children’s interest (footnote omitted).

                                                      ****
        The plain language of the wrongful death statute §11-7-13 sets it at odds with the minors
        savings statute §15-1-59. Conceivably, the minors savings statute would allow for two
        groups of plaintiffs to file suits at two separate times for damages caused by one event: 1)


        7
         Had there still been viable claims under the MTCA, Emily would have been protected under the
recently amended statute. Miss. Code Ann. § 11-46-11(4) provides:
                 (4) From and after April 1, 1993, if any person entitled to bring any action under
        this chapter shall, at the time at which the cause of action accrued, be under the disability
        of infancy or unsoundness of mind, he may bring the action within the time allowed in this
        section after his disability shall be removed as provided by law. The savings in favor of
        persons under disability of unsoundness of mind shall never extend longer than twenty-one
        (21) years.

The amendment notes under Miss. Code Ann. § 11-46-11 state that “[t]he 2000 amendment added (4).
The 2002 amendment substituted ‘April 1, 1993' for ‘May 15, 2000' in (4).”

                                                      12
        those plaintiffs of majority age and sound mind within the statute of limitations and 2) those
        plaintiffs protected by the savings statute when their disability is removed or they reach the
        age of majority. This could result in a substantial period of time elapsing between the two
        suits. The wrongful death statute requires that only one suit be brought to recover damages
        for the wrongful death of the deceased.

                                                     ****
                 Betty Curry is not only the wife of the deceased, she is his personal representative
        as administratrix of his estate. The style of this case indicates it was her intention to bring
        this suit on behalf of all his wrongful death beneficiaries. The original and proposed
        amended complaint seek damages for all beneficiaries and not just for herself. The facts
        of Arender are closer to the facts in the instant case than those in Thiroux . We
        therefore conclude that the trial court’s ruling that she represented the interests of their
        minor children, as the estate’s administratrix and as their mother, for purposes of counting
        the statute of limitations against them, is affirmed. While this is a difficult conclusion, we
        are convinced the provisions in the wrongful death statute and the minors savings statute
        are at irreconcilable odds with one another where there exists a person qualified under the
        wrongful death statute to bring suit. This conclusion is reinforced by the wrongful death
        statute’s requirement that one suit be brought for damages from wrongful death. A
        common sense reading of the wrongful death statute indicates the statute of limitations runs
        against both the personal representative of the deceased and the deceased’s children.
        Since the amended complaint was filed after the statute of limitations had run, the children’s
        claims, like the estate’s and their mother’s, are barred by the statute of limitations.

832 So.2d at 515-17. Turning to the case sub judice, Susan Renee Lee, like Betty Curry, is a person in

esse. Betty Curry was not only the wife of the deceased, she was the deceased’s personal representative,

she was the administratrix of her husband’s estate, and she was the natural mother of their two minor

children, who, along with Betty Curry, constituted all the wrongful death beneficiaries of the deceased.

Susan Renee Lee is the natural mother of Emily, who is the sole wrongful death beneficiary of Lawson.

After Lee was substituted in the original state court action which was removed to federal court, the case

was styled in part, “Susan Renee Lee, Administratrix of the Estate of Randy C. Lawson and on behalf of

all wrongful death beneficiaries.” By that time, Lee had been substituted as administratrix of Lawson’s

estate and appointed general guardian over Emily’s person and estate in separate causes in the Chancery

Court of Coahoma County. Thus, as in Curry, the statute of limitations in our case today runs against both


                                                     13
Lee and Emily. No doubt, Emily, because of her disability of minority, was protected under both Miss.

Code Ann. §§ 11-46-11(4) & 15-1-59 until the suit was initially filed in her behalf. That action, however,

commenced the running of the applicable statute(s) of limitations concerning subsequently filed suits arising

from the same cause of action.8

¶21.    Inasmuch as we have now determined that Lee’s claims arising from alleged non-intentional acts

of the Coahoma County defendants were barred by Miss. Code Ann. § 11-46-9(1)(m), and that Emily

was no longer protected under the minors savings statute, we must now determine which statute of

limitations applies to claims arising from Lee’s claims of intentional/criminal acts allegedly committed upon

Lawson by the Coahoma County defendants. Is it Miss. Code Ann. § 15-1-49 (the three-year “catch-all”

        8
         We are not unmindful of the existence of Miss. Code Ann. § 15-1-69 (Rev. 2003), which states:


                If in any action, duly commenced within the time allowed, the writ shall be abated,
        or the action otherwise avoided or defeated, by the death of any party thereto, or for any
        matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a
        judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new
        action for the same cause, at any time within one year after the abatement or other
        determination of the original suit, or after reversal of the judgment therein, and his executor
        or administrator may, in case of the plaintiff’s death, commence such new action, within the
        said one year.

However, the reason we have not thus far addressed this statute is because Lee has not. In her notice of
appeal, Lee asserted “[t]he Circuit Court also held that Section 15-1-69 was not applicable and that the
one year statute of limitations was not tolled during the pendency of a previous action which was dismissed
without prejudice.” First of all, we have meticulously searched the record, and we find no reference to §
15-1-69 by the circuit judge. Secondly, this one statement in her notice of appeal is the last time Lee
mentions this issue. Her brief makes no mention of Miss. Code Ann. § 15-1-69, and although the
defendants’ brief does mention § 15-1-69, Lee, in her reply brief, chooses not to address this statute. In
their brief, the defendants state that “the federal district court’s disposition was clearly ‘on the merits’ and
was not a dismissal ‘as to form’ so as to render the prior disposition subject to Miss. Code Ann. § 15-1-
69.” In referring to our earlier recitation of Judge Biggers’s decision in the federal district court case, we
agree with the position taken by the Coahoma County defendants. Lee evidently has no disagreement on
this point since she chose not to address it in her initial brief, nor respond to the defendants’ position on this
point when given the opportunity to do so in her reply brief.

                                                       14
statute), or Miss. Code Ann. § 15-1-35 (the one-year statute for intentional torts)? We have previously

addressed this precise issue. In Thiroux, we stated:

                 We note that the parties in this case have concluded that the applicable statute of
        limitation is that found in Miss. Code Ann. §15-1-49 (1995), the general three-year statute
        of limitation applied to “all claims for which no other period of limitations is prescribed.”
        However, a wrongful death action, since it is predicated on an underlying tort, is limited by
        the statute of limitation applicable to the tort resulting in the wrongful death. In this case,
        the underlying tort is one of assault and battery (murder), which cause is limited to a one-
        year period. Miss. Code Ann. §15-1-35 (1995); see Veselits ex rel. Cruthirds v.
        Veselits, 653 F.Supp. 1570, 1575 (S.D. Miss.), aff’d on other grounds, 824 F.2d
        391 (5th Cir. 1987).

749 So.2d at 1042. There can thus be no doubt that Lee’s wrongful death action based on the alleged

intentional criminal acts committed upon the person of Lawson by the Coahoma County defendants,

inasmuch as it is predicated on an intentional tort, is governed by the one-year statute of limitation.

¶22.    Finally, Lee argues that the pendency of the federal court action tolled the statute of limitations. The

County argues the trial court correctly held that the pendency of a prior action does not toll the running of

the statute of limitations applying the law of Smith v. Copiah County, 232 Miss. 838,100 So. 2d 614

(1958); W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8 (1926); and Nevitt v. Bacon, 32

Miss. 212 (1856). But for the existence of one fact, Lee would prevail on this issue. See Boston v.

Hartford Acc. & Indem. Co., 822 So.2d 239, 248 (Miss. 2002); Norman v. Bucklew, 684 So.2d

1246, 1256 (Miss. 1996). However, our decisions in Boston and Norman do not aid Lee in her case.

Although the causes of action in both Boston and Norman accrued prior to the enactment of the MTCA,

this is not what defeats Lee’s claims inasmuch as we have already determined that the MTCA is not

applicable to Lee’s intentional tort claims.




                                                      15
¶23.    Norman involved, inter alia, a malicious prosecution claim which was filed in federal court,

dismissed without prejudice, and then refiled in state court. Boston involved a wrongful death claim

commenced in state court subsequent to a federal court dismissal of a complaint which had alleged both

federal and state claims against the sheriff and others due to the death of a jail detainee. In 1987, Boston

filed her initial federal court action resulting in the subsequent dismissal of her state law claims without

prejudice. In 1993, Boston filed another federal court action which was also dismissed without prejudice

as to the state law claims. In 1995, Boston filed her state court action for the jail detainee’s alleged

wrongful death which had occurred in 1987. The state court dismissed Boston’s complaint for several

reasons, one of which was the running of the applicable statute of limitations which had not been tolled

based on the pendency of the federal court actions. On this issue, this Court stated:

                 In accordance with this Court’s determination in Norman, we conclude that the
        six (6) year statute of limitations was tolled while the case was in federal court and that the
        trial court erred in determining that Boston’s claims were time-barred.

822 So.2d at 248.

¶24.    However, in the case before us today, Lee, while being given the opportunity to amend her federal

court pleadings, chose instead to file a new state court action alleging for the first time various intentional

torts against the Coahoma County defendants. It must be remembered that in the initial state court action

which was removed to federal court, the complaint alleged negligence by the Coahoma County defendants

for failing to prevent Lawson’s suicide. We do know fromJudge Biggers’s opinion of August 15, 2000,

that this complaint was later amended during the pendency of the federal court action so as to substitute

Lee as a party plaintiff in that cause. While there is no copy of the federal court amended complaint in the

record before us, we do have Judge Biggers’s references to the amended complaint as gleaned from his

opinion:

                                                      16
                 The undersigned has carefully reviewed the amended complaint and fails to find
        where the plaintiff has alleged any claims under §1983 against either the sheriff or the
        county. The only clear facts alleged in the complaint are that certain unnamed deputies
        may have beaten the plaintiff’s decedent to death, and neither Sheriff Thompson nor the
        county can be held liable for the deputies actions under 42 U.S.C. §1983.
                                               ***************
                 Plaintiff here does not allege that Thompson watched and did nothing as his
        deputies beat Lawson, or that he was informed of the beating and did nothing, or that he
        had any personal involvement in Lawson’s arrest or detention.
                                               ***************
        The amended complaint in this case is wholly devoid of any factual detail. There are no
        facts from which to base a claim that Thompson had anything to do with the
        beating/suicide.
                                               ***************
                 The court further finds that plaintiff has not pled sufficient facts to support her claim
        against Coahoma County for a custom or policy regarding the circumstances resulting in
        the beating of Lawson or the alleged indifference to his suicide.
                                               ***************
                 Plaintiff asserts that Miss. Code Ann. §11-46-9(1) specifically excludes employees
        fromthe shield of immunity who are not acting within the scope of their employment which
        is defined in §11-46-9(2) [sic] as any conduct which may constitute “fraud, malice, libel,
        slander, defamation or any criminal offense other than traffic violations.” As stated supra
        in the discussion of federal claims, the complaint fails to allege any specific actions by the
        Sheriff either malicious or not that would support a cause of action.

¶25.    Under the facts of this case, Lee has simply waited too long to refile a new state court action raising

for the first time various claims of intentional torts allegedly committed by Sheriff Thompson and the other

Coahoma County defendants.

¶26.    In Cole v. State, 608 So. 2d 1313 (Miss. 1992), we stated the clear purpose of statutes of

limitations:

                 The primary purpose of statutory time limitations is to compel the exercise of a
        right of action within a reasonable time. These statutes are founded upon the general
        experience of society that valid claims will be promptly pursued and not allowed to remain
        neglected. They are designed to suppress assertion of false and stale claims, when
        evidence has been lost, memories have faded, witnesses are unavailable, or facts are
        incapable of production because of the lapse of time.
                 Accordingly, the fact that a barred claim is a just one or has the sanction of a moral
        obligation does not exempt it from the limitation period. These statutes of repose apply

                                                       17
        with full force to all claims and courts cannot refuse to give the statute effect merely
        because it seems to operate harshly in a given case. The establishment of these time
        boundaries is a legislative prerogative. That body has the right to fix reasonable periods
        within which an action shall be brought and, within its sound discretion, determine the
        limitation period.

Id. at 1317-18. Thus, the trial court properly dismissed the complaint filed on March 28, 2001.

¶27.    While the trial court correctly dismissed the claims based on the alleged non-intentional acts of the

Coahoma County defendants under the provisions of the MTCA, and correctly kept viable the intentional

tort claims in count I of the complaint, the trial court incorrectly dismissed other claims which remained

viable under the wrongful death statute based on the alleged intentional acts of the Coahoma County

defendants. Certainly, under the minors savings statute, Emily was protected; however, once the first

wrongful death suit was commenced by the filing of the state court complaint on June 16, 1999, Emily no

longer enjoyed the protection of the minors savings statute since there could be but one cause of action

under Miss. Code Ann. § 11-7-13. Additionally, for the reasons stated, once the original state court action

was commenced, Emily was governed by the same statute of limitations as her mother. Lee had her chance

to pursue the wrongful death claim in behalf of Emily. She timely filed her suit. It was removed to federal

court. She amended her complaint. The federal judge dismissed her claims without prejudice, granting her

thirty days to amend her complaint. She chose instead to commence a new action in state court, alleging,

inter alia, new claims of various intentional torts allegedly committed by the Coahoma County defendants.

This new state court action was commenced 663 days after the cause of action accrued and 297 days after

the applicable one-year statute of limitations had run.

                                            CONCLUSION

¶28.    We are confronted today with an absolutely tragic death of a young man while incarcerated in a

county jail on domestic disturbance charges – an event which consequentially inflicts extreme grief and

                                                    18
hardship on innocent family members and friends. We are also not unmindful of the serious allegations

contained in the pleadings, all of which we are required to accept as true for the purposes of deciding the

propriety of the trial court’s grant of dismissal. However, Lee, and thus, Emily, have had their day in court.

Our interpretation of clear legislative intent based on the unambiguous provisions of applicable statutes and

our application of prior case law guide us unhesitatingly to the conclusion we reach today. Because Lee's

negligence claims were barred by the jail inmate exemption of the MTCA and the one-year statute of

limitations had run on Lee's intentional tort claims, the trial court properly dismissed this action. Therefore,

the judgment of dismissal of the Circuit Court of Coahoma County is affirmed.

¶29.    AFFIRMED.

     PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR.
GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


        McRAE, PRESIDING JUSTICE, DISSENTING:

¶30.    The majority erroneously finds that Miss. Code Ann. § 11-46-9(1)(m) (Rev. 2002) precludes

Emily's claims since her father was an "inmate" at the time of the alleged acts of negligence and that the

savings clause found in Miss. Code Ann. § 15-1-69 (Rev. 2003) is not applicable. Section 11-46-9(1)(m)

does not preclude Emily's negligence claims as her father was not a "convicted" criminal classifying as an

"inmate" within the statute's express language. Additionally, the savings clause found in Section 15-1-69

is applicable and allowed Emily one year to refile her action in state court. Lastly, Emily's claims for loss

of society and companionship are personal to her and not her father; therefore, any procedural impediments

which restrict her father's possible claims under the MTCA do not apply. For these reasons, I dissent.

¶31.    Section 11-46-9(1)(m) provides that:



                                                      19
        (1)      A government entity and its employees acting within the course and scope of their
                 employment or duties shall not be liable for any claim:
                               (m) Of any claimant who at the time the claim arises is an
                               inmate of any detention center, jail, workhouse, penal
                               farm, penitentiary or other such institution, regardless of
                               whether such claimant is or is not an inmate of any
                               detention center, jail, workhouse, penal farm, penitentiary
                               or other such institution when the claim is filed.

(emphasis added). Randy Lawson, Emily's father, was not an "inmate" at the time of the alleged acts of

negligence. He was only a detainee being held on "possible" charges of assault and battery. At the time

of his detention, Lawson had not been formally charged with any crime and had certainly not been tried and

convicted. Lawson was not an "inmate" within the meaning of Section 11-46-9(1)(m); therefore, it has no

application here.

¶32.    The savings clause in Section 15-1-69 is applicable; therefore, Emily had one year from the federal

court's dismissal of her action for lack of proper forum to institute the present state court action. Regardless

of whether Emily alleged new causes of action in addition to those in the federal suit, she is still entitled to

the protections of Section 15-1-69. As long as Emily's action in federal court was timely filed, then the

running of the statute of limitations during its pendency is of no consequence. Boston v. Hartford Acc.

& Indem. Co., 822 So.2d 239 (Miss. 2002); Norman v. Bucklew, 684 So.2d 1246 (Miss. 1996).

¶33.    Additionally, Section 15-1-69 is a procedural statute and not a substantive statute of limitations.

Therefore, the mandates of the Mississippi Tort Claims Act ("MTCA") with regard to the imposition of an

"exclusive" statute of limitations are not disturbed. Miss. Code Ann. § 11-46-11 (Rev. 2002). Contrary

to the majority's assertions, Section 15-1-69 does not alter or extend the statute of limitations provided for

in Section 11-46-11 of the MTCA. Section 15-1-69 merely provides a procedural remedy for persons

who erroneously chose the wrong forum. "The primary purpose of statutory time limitations is to compel



                                                      20
the exercise of a right of action within a reasonable time." Cole v. State, 608 So.2d 1313, 1317 (Miss.

1992). In line with this reasoning, the mandates of Section 15-1-69 do not conflict with the statute of

limitations provided for in the MTCA. Application of Section 15-1-69 does not extend the statute of

limitations or provide an unreasonable time within which the plaintiff may exercise his rights. In fact, under

the present circumstances, since the federal action was timely filed, the County and other defendants were

already on notice of Emily's potential claims.

¶34.    Emily's claims for loss of society and companionship are personal to her and not her father;

therefore, any procedural impediments which restrict her father's possible claims under the MTCA do not

apply. This Court has always found claims for loss of society and companionship to be rightfully in the

hands of the injured person and/or the deceased's heirs. Choctaw, Inc. v. Wichner, 521 So.2d 878,

880-82 (Miss. 1988). The action is personal in nature. Although several defenses which may be applicable

against the injured or deceased person may also be asserted against their heirs, there is no indication that

the "inmate limitation" in the MTCA should apply to Emily's personal claims for relief.

¶35.    Contrary to the majority's assertions, Section 11-46-9(1)(m) does not bar Emily's claims regarding

the negligent acts which caused her father's death. Furthermore, Emily's refiling in state court was timely

and was not barred by the statute of limitations as Section 15-1-69 provided her with one year from the

dismissal in federal court to refile her action. Accordingly, I would reverse the trial court's judgment and

remand this case for further proceedings. For these reasons, I dissent.




                                                     21
