                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 94-CT-00009-SCT
JEWELL S. BROWN
v.
WINN-DIXIE MONTGOMERY, INC.
                           ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                                12/23/93
TRIAL JUDGE:                                     HON. LARRY E. ROBERTS
COURT FROM WHICH APPEALED:                       LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          CHARLES W. WRIGHT
ATTORNEYS FOR APPELLEE:                          JOHN G. COMPTON

                                                 ROBERT H. COMPTON
NATURE OF THE CASE:                              CIVIL - PERSONAL INJURY
DISPOSITION:                                     REVERSED AND REMANDED - 2/22/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  3/14/96




     EN BANC.


     McRAE, JUSTICE, FOR THE COURT:


¶1. This Court granted a petition for writ of certiorari filed by Jewell S. Brown after the Court of Appeals
affirmed the decision of the Lauderdale County Circuit Court. The lower court had granted Winn-Dixie
Montgomery, Inc. a summary judgment holding that Brown's amended complaint was time barred and did
not relate back to the date of the originally filed complaint. We now reverse and remand the case for a trial
on the merits.

¶2. Jewell Brown was injured while shopping in a Winn-Dixie grocery store in Meridian, Mississippi. She
filed suit against Winn-Dixie Louisiana, Inc. on the last day allowed under the applicable statute of
limitations. She later discovered that the corporate entity should have been Winn-Dixie Montgomery, Inc.,
and amended her complaint eight weeks after the initial filing to reflect the proper corporate entity. The
lower court granted Winn-Dixie Montgomery, Inc. a summary judgment finding that the amended complaint
was time barred.

¶3. The Court of Appeals affirmed the decision of the lower court on June 27, 1995, with four of the ten
judges dissenting. Brown's petition for rehearing was denied by the Court of Appeals by order entered on
August 15, 1995. This Court granted the Petition for Writ of Certiorari by order entered on September 28,
1995.

¶4. Brown gives the following as her issues on petition for writ of certiorari:

      1. Whether the Court of Appeals decision is in conflict with a prior Mississippi Supreme Court
      decision, with other controlling case law in this jurisdiction, and with the Mississippi Rules of Civil
      Procedure?

      2. Whether the Court of Appeals erred when it held that Appellee, Winn-Dixie Montgomery, Inc. did
      not receive proper notice of this lawsuit?

                                           Statement of the Case

¶5. Brown filed her complaint on June 16, 1993, the last day for filing under the statute of limitations,
against Winn-Dixie Louisiana, Inc. for injuries she received in a Winn-Dixie grocery store in Meridian,
Mississippi, on June 16, 1990. While shopping at the store, Brown went to the soft drink display to pick up
a package of soft drinks, and as she bent over to pick up a package, was injured in her right eye by a "J-
shaped" hook on the display. Brown reported the incident to a cashier, who in turn told the location
manager. A claims adjustor for Crawford and Company investigated the incident for Winn-Dixie and
contacted Brown.

¶6. Brown's attorney contacted the Mississippi Secretary of State's Office concerning the appropriate legal
entity for the Meridian Winn-Dixie. Brown's attorney contends that he was given the wrong information
about the Winn-Dixie Corporation in Mississippi. He was first told that there was only one Winn-Dixie
Corporation licensed to do business in Mississippi, namely Winn-Dixie Louisiana, Inc., when in fact there
are two, Winn-Dixie Louisiana, Inc. and Winn-Dixie Montgomery, Inc. Winn-Dixie Montgomery, Inc.
operates the Meridian store where Brown was injured.

¶7. Soon after the complaint was filed, Winn-Dixie Louisiana, Inc. filed a Motion to Dismiss or in the
Alternative Motion for Summary Judgment. On August 16, 1993, the circuit court entered an order
dismissing Winn-Dixie Louisiana, Inc. without prejudice and allowed Brown to substitute Winn-Dixie
Montgomery, Inc. in place of Winn-Dixie Louisiana, Inc.

¶8. An amended complaint was filed on August 17, 1993, and process was served on Winn-Dixie
Montgomery, Inc.'s agent for service of process on August 19, 1993. Both Winn-Dixie Louisiana, Inc. and
Winn-Dixie Montgomery, Inc. were represented by the same attorneys.

¶9. A Motion to Dismiss or in the Alternative for Summary Judgment on the grounds that the statute of
limitations barred the claims was filed on November 29, 1993. A hearing was conducted on December 20,
1993, and the court entered a judgment granting the motion on December 23, 1993, finding that the statute
of limitations had run as to Brown's claim against Winn-Dixie Montgomery, Inc. when it had not been sued
or served with process by June 16, 1993. The court held that the amendment to the complaint did not relate
back to the original complaint under M.R.C.P. 15(c).

¶10. On petition for writ of certiorari, Brown argued that the Appellee received timely notice of her claims.
She contended that the Court of Appeals, in relying on the factors of Schiavone v. Fortune, 477 U.S. 21,
106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), failed to consider that the fourth factor, which requires service of
the complaint within the applicable period of limitations, has since been effectively overruled by a change in
the federal rules.

¶11. Brown's argument is that M.R.C.P. 4(h) should be the controlling factor in determining whether the
Appellee has received timely notice of the claim. Rule 4(h) provides that service is timely if made within 120
days from the filing of the complaint.

¶12. Brown cites Estate of Schneider, 585 So.2d 1275, 1276 (Miss.1993), and Erby v. Cox, 654 So.2d
503 (Miss.1995), as examples of decisions of this Court which are in conflict with the decision of the Court
of Appeals. These cases provide that a timely filed complaint tolls the statute of limitations, and that the
120-day period to obtain service of process applies even when the complaint is filed on the last day of the
period of limitations.

                                                  Discussion

¶13. Miss.Code Ann. § 15-1-49 provides for a three-year period of limitations in personal injury claims. It
states, in part:

      (1) All actions for which no other period of limitations is prescribed shall be commenced within three
      (3) years next after the cause of such action accrued, and not after.

¶14. M.R.C.P. 15(c) provides:

      Whenever the claim or defense asserted in the amended pleading arose out of the conduct,
      transaction, or occurrence set forth or attempted to be set forth in the original pleading, the
      amendment relates back to the date of the original pleading. An amendment changing the party against
      whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period
      provided by law for the commencing the action against him, the party to be brought in by amendment:

      (1) has received notice of the institution of the action that he will not be prejudiced in maintaining his
      defense on the merits, and

      (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the
      action would have been brought against him. An amendment pursuant to Rule 9(h) is not an
      amendment changing the party against whom a claim is asserted and such amendment relates back to
      the date of the original pleading.

¶15. In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) the United States
Supreme Court set forth its analysis of the application of Federal Rule 15(c), which was identical to the
present Mississippi Rule at the time, and stated:

      [R]elation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must
      have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must
      have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must
      or should have known that, but for a mistake concerning the identity, the action would have been
      brought against it; and (4) the second and third requirements must be fulfilled within the prescribed
      limitations period.
477 U.S. at 29, 106 S.Ct. at 2384.

¶16. The Court of Appeals relied on this fourth factor to find that not only must the complaint be filed within
the three year period of limitation, but also that any amendment changing a party in the complaint must be
made within the same period of limitations.

¶17. The Court of Appeals noted that Federal Rule 15(c), as interpreted in Schiavone, has been amended
to extend the statute of limitations applicable to a new party for up to 120 days if the new party received
notice of the litigation prior to the expiration of the 120-day period for service of process. The original
complaint must still be filed within the limitations period. The Mississippi version of Rule 15(c) has not been
changed and remains the same as at the time of Schiavone. The Court of Appeals dissent argues that the
amendment to Rule 15 adopted by the United States Supreme Court effective December 1, 1991, changed
or overruled the holding in Schiavone.

¶18. The Supreme Court and Congress did amend the Rule "to change the result in Schiavone v. Fortune
... with respect to the problem of a misnamed defendant.... On the basis of the text of the former rule, the
Court reached a result ... that was inconsistent with the liberal pleading practices secured by Rule 8."
Fed.R.Civ.P. 15 Advisory Committee note (1991 amendment). Rule 15(c) was amended to provide that

      an amendment of a pleading relates back to the date of the original pleading when ... (3) the
      amendment changes the party or the naming of the party against whom a claim is asserted if [the basic
      claim arose out of the conduct set forth in the original pleading] and, within the period provided by
      Rule 4(j) for service of summons and complaint, the party to be brought in by amendment (A) has
      received such notice of the institution of the action that the party will not be prejudiced in maintaining a
      defense on the merits, and (B) knew or should have known that, but for a mistake concerning the
      identity of the proper party, the action would have been brought against the party.

"The only significant difference between the Schiavone rule and amended Rule 15(c) is that, instead of
requiring notice within the limitations period, relation back is allowed as long as the added party had notice
within 120 days following the filing of the complaint, or longer if good cause is shown." Skoczylas v.
Federal Bureau of Prisons, 961 F.2d 543, 545 (5th Cir.1992).

¶19. Prior to the decision in Schiavone, several circuits, including the Fifth Circuit, interpreted the limitations
period in Rule 15(c) as including the extra "reasonable period" for service of process, as provided for in
Rule 4. See, e.g., Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir.1987); Kirk v.
Cronvich, 629 F.2d 404, 407 (5th Cir.1980); Ingram v. Kumar, 585 F.2d 566, 571-72 (2d Cir.1978)
("the period within which the party to be brought in must receive notice of the action includes the reasonable
time allowed under the federal rules for service of process").

¶20. The rule in Schiavone was widely criticized as too restrictive and a misreading of Rule 15(c). See
Joseph P. Bauer, Schiavone: An Un-Fortune-ate Illustration of the Supreme Court's Role as
Interpreter of the Federal Rules of Civil Procedure, 63 Notre Dame L.Rev. 720 (1988); Robert D.
Brussack, Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61 S.Cal. L. Rev. 671
(1988); Joseph Dornfried, Schiavone v. Fortune: Notice Becomes a Threshold Requirement for
Relation Back under Federal Rule 15(c), 65 N.C.L.Rev. 598 (1987), as cited in Franklin v. Winn Dixie
Raleigh, Inc., 450 S.E.2d 24, 33 (N.C.App.1994) (Wynn, J., dissenting).
¶21. Since the United States Supreme Court and Congress have abandoned Schiavone, it seems illogical
for Mississippi courts to adopt this harsh and unnecessary interpretation of Rule 15. In Hughes v. Water
World Water Slide, Inc., 442 S.E.2d 584, 586 (S.C.1994), the South Carolina Supreme Court stated:

      Although South Carolina has not adopted the 1991 amendment to Fed.R.Civ.P. 15(c) we read the
      original Rule 15(c), SCRCP consistent with the committee notes to amended Fed.R.Civ.P. 15(c).
      Thus, the result in Schiavone is inconsistent with our rules. We, therefore, decline to follow
      Schiavone.

      Rule 8(f), SCRCP, requires that "all pleadings shall be construed to so substantial justice to all
      parties." We agree with the committee note on amended Fed.R.Civ.P. 15(c) that Rule 8(f), SCRCP,
      is applicable and that the rules should be liberally construed.

¶22. In recent cases, this Court, without specifically addressing this aspect of the rule, has indicated that it
would follow the less literal interpretation of the rule.

¶23. In Estate of Schneider, 585 So.2d 1275 (Miss.1993) this Court reversed and remanded a will
contest case in which the chancery court had dismissed the action for failure to join necessary parties within
the two-year period of admission of the challenged will to probate. This Court held that the filing of the
complaint tolled the statute of limitations and that the court should have joined the parties and issued
process accordingly.

¶24. In Erby v. Cox, 654 So.2d 503 (Miss.1995) this Court considered the question of whether the filing
of a medical malpractice suit commenced the action and tolled the statute of limitations where service of
process was within 120 days after the complaint was filed. This Court found that the filing did toll the
statute, citing Estate of Schneider, and that service of process could be anytime within the 120-day period.

¶25. In Womble v. Singing River Hospital, 618 So.2d 1252 (Miss.1993), this Court looked at the
application of Rule 15(c) in the context of a medical malpractice case in which certain doctors had originally
been sued as "John Does." In concluding that summary judgment had been improper on the basis of the
statute of limitations, this Court stated:

      On these facts the conclusion that, within the statutory period provided by law for commencing this
      action, Longmire and Weatherall had notice of this suit and knew or should have known of this suit
      and knew or should have known that but for a mistake concerning their identities, they would have
      been included in this suit when it was originally filed on March 28, 1993, is virtually compelled. It is
      also obvious beyond peradventure that they will not be prejudiced in maintaining a defense on the
      merits. The record shows that they were already preparing with retained counsel to defend themselves
      in this action on April 21, 1988. That date is approximately three weeks after the original complaint
      was filed. Therefore, we find that the provisions of Rule 15(c) have been satisfied by the facts of this
      case, and consequently, we rule that summary judgment was improperly entered for Doctor
      Weatherall and Dr. Longmire in the basis of the time bar.

618 So.2d at 1268.

¶26. Drs. Longmire and Weatherall were not added to the suit until approximately two years and eight
months after the death of Helen Womble and "[u]nder any reasonable interpretation of the statute § 15-1-
36's two-year period had passed before the joinder of Dr. Weatherall, Dr. Longmire, and Emergency
Room Group." Id. at 1266. Although the Womble case can be distinguished from the present case, it shows
that this Court has not previously adopted the approach of Schiavone and instead has looked more to the
element of whether the party defendant would be caught unaware by the amendment to the complaint.

¶27. In the present case, Winn-Dixie's insurance adjustor investigated the claim soon after the occurrence
and the same attorneys represented both Winn-Dixie corporate entities. The decision rendered by the
Court of Appeal is in clear conflict with these recent decisions of this Court. This Court and the Court of
Appeals are not bound to blindly apply the observation or interpretation by the federal court, particularly in
light of the subsequent changes made in Rule 15. Further, we find the reasoning in Hughes v. Water World
Water Slide, Inc., 442 S.E.2d at 586, to be more persuasive.

¶28. The holding in Schiavone, upon which the Court of Appeals solely relies as the basis for its opinion, is
also not compelled by Rule 15 itself. Further, the Supreme Court has since changed its version of the Rule
to change the result of its prior holding. This Court need not change its rule nor adopt the holding in
Schiavone. As recognized by the majority opinion of the Court of Appeals, the result of adopting
Schiavone seems harsh. The result is also unnecessary and conflicts with the decision this Court has
rendered in Erby v. Cox and Estate of Schneider. We therefore reverse and remand this case for a trial
on the merits, finding that the amended complaint was not time barred and that the amended complaint did
relate back to the date of the originally filed complaint.

                                                 Conclusion

¶29. The Court of Appeals incorrectly held that summary judgment was properly granted for failure of the
plaintiff/appellant to amend the complaint to reflect the proper corporate name of the defendant within the
time allowed by law. This case is reversed and remanded to the lower court where the case can be decided
on the merits.

¶30. REVERSED AND REMANDED.

DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and PITTMAN, BANKS, JAMES L.
ROBERTS, Jr., SMITH and MILLS, JJ., concur.
