                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2000-CA-01309-SCT

BETTY CURRY, ADMINISTRATRIX OF THE
ESTATE OF EVERETT CURRY, DECEASED, ON
BEHALF OF THE ESTATE OF EVERETT CURRY
AND ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF EVERETT CURRY
v.

TRENT TURNER, DENT TURNER AND MONEY
PILLAI d/b/a MIMS ONE STOP

DATE OF JUDGMENT:                                 8/10/2000
TRIAL JUDGE:                                      HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                        LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                          RAYFORD G. CHAMBERS
                                                  CHARLES VICTOR McTEER
                                                  FREDERICK B. CLARK
ATTORNEYS FOR APPELLEES:                          RICHARD T. LAWRENCE
                                                  THOMAS Y. PAGE
                                                  JEFFREY LEE CARSON
                                                  MARC A. BIGGERS
NATURE OF THE CASE:                               CIVIL - WRONGFUL DEATH
DISPOSITION:                                      AFFIRMED - 12/12/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        PITTMAN, CHIEF JUSTICE, FOR THE COURT:

¶1.     The administratrix of a deceased's estate brought a wrongful death suit against the deceased's killer

in the name of the estate and the deceased's beneficiaries in the Circuit Court of Leflore County. Her

motion to amend the complaint to name the owner of the convenience store owner where the deceased

died as a defendant on a theory of premises liability and various family members of the killer on a theory
of negligent entrustment was granted. Later, the newly named defendants moved to dismiss suit on the

grounds that the statute of limitations had run. The trial court granted the motion and entered final judgment

in favor of the new defendants.

                                                  FACTS

¶2.     On December 13, 1995, Everett Curry was pumping gas into his car at Mims One Stop on U.S.

Highway 82 in Carroll County, Mississippi, when two men drove up. One man, Paul Stewart, went inside

to rob the store. The other, Hart Turner, waited outside. While Stewart was inside, Hart Turner forced

Everett Curry to the ground and executed him by shooting him in the head.1 Everett Curry's wife, acting

as administratrix of his estate, brought a wrongful death suit against Hart Turner and Paul Stewart on behalf

of the estate and Everett Curry's beneficiaries–herself and their two minor children–approximately six

months later. On December 11, 1998, almost three years after Everett Curry's death, Curry filed a motion

to amend the complaint to add Money Pillai, the owner of Mims One Stop, and Trent Turner, Dent Turner,

and Ladonna Turner, family members of Hart Turner, as defendants under different theories of liability.2

The trial court granted this motion on April 19, 1999. The circuit clerk neglected to send notice of the entry

of the order to Curry, Hart Turner or Paul Stewart and the court file on this case was misplaced for some

time. Seven months later, on November 19, 1999, Curry filed the amended complaint which named the

new parties as defendants. Service of process was made on the new defendants within 120 days after the

amended complaint was filed, and they each raised the defense that the statute of limitations had run and


        1
        Paul Stewart later confessed and Hart Turner was convicted of capital murder and now awaits
execution by lethal injection. See Turner v. State, 732 So. 2d 937 (Miss. 1999).
        2
        Money Pillai (the owner of Mims One Stop), Trent Turner (Hart Turner's brother), and Dent
Turner (Hart Turner's uncle) are hereinafter referred to collectively as "the new defendants." The entire
group of plaintiffs will be referred to as "Curry." Where necessary, first names will be used to avoid
confusion.

                                                      2
therefore precluded recovery.3 The trial court conducted a hearing on the various motions to dismiss and

dismissed the new defendants with prejudice because the statute of limitations had run. Aggrieved, Curry

appeals this dismissal.

                                               DISCUSSION

        I.       WHETHER A MOTION FOR LEAVE TO AMEND A
                 COMPLAINT WITH THE ATTACHED PROPOSED
                 AMENDED COMPLAINT SERVED BEFORE THE
                 EXPIRATION OF THE APPLICABLE STATUTE OF
                 LIMITATIONS TOLLS THE LIMITATIONS PERIOD
                 WHERE THE TRIAL COURT GRANTS THE SAID MOTION
                 AFTER EXPIRATION OF THE LIMITATIONS PERIOD.

        II.      WHETHER THE PLAINTIFF DEMONSTRATED "GOOD
                 CAUSE" FOR SERVING AN AMENDED COMPLAINT
                 MORE THAN 120 DAYS AFTER EXECUTION OF AN
                 ORDER GRANTING LEAVE TO AMEND WHERE THE
                 FILE MAINTAINED BY THE CIRCUIT CLERK WAS
                 INEXPLICABLY LOST; THE CLERK FAILED TO SUBMIT
                 A COPY OF THE EXECUTED ORDER TO THE PARTIES
                 AS REQUIRED BY M.R.C.P. 77(D); AND, THE AMENDING
                 PLAINTIFF SERVED THE AMENDED COMPLAINT
                 WITHIN THIRTY (30) DAYS OF LEARNING THE ORDER
                 GRANTING AMENDMENT WAS EXECUTED BY THE
                 COURT.

                (WHETHER THE TRIAL COURT ERRED IN DISMISSING
                THE AMENDED COMPLAINT AS BARRED BY THE
                STATUTE OF LIMITATIONS)
¶3.     Curry seeks a ruling from this Court that a motion to amend, with the amended complaint attached

to the motion, "tolls" the statute of limitations when the motion is made prior to the running of the limitations

period. This is to be distinguished from the use of the "relation back" provision of M.R.C.P. 15(c) which

allows for an amended complaint to be considered as filed on the date the original complaint was filed under



        3
          Service of process was not made upon Ladonna Turner (Hart Turner's mother) and she is not a
party in this appeal.

                                                       3
certain circumstances. Curry points to a handful of cases from federal courts in support of this language

and asks this Court to follow their lead.

¶4.     The new defendants refer this Court to case law in Mississippi which is over one hundred years

old. These cases obviously predate the adoption of the rules of civil procedure, but support their argument

that an amended complaint is only effective when filed. Therefore, if an amended complaint is filed after

the statute of limitations has run–regardless of when the motion to amend was made–the statute of

limitations bars suits against newly named defendants. Each of these positions and the authority supporting

them is examined below.

¶5.     Rule 15 of the Mississippi Rules of Civil Procedure governs the process of amending complaints

and provides in relevant part:

                (a) Amendments. A party may amend his pleading as a matter of
                course at any time before a responsive pleading is served, or, if the
                pleading is one to which no responsive pleading is permitted and the action
                has not been placed upon the trial calendar, he may so amend it at any
                time within thirty days after it is served. . . . Otherwise a party may amend
                his pleading only by leave of court or upon written consent of the adverse
                party; leave shall be freely given when justice so requires. . . .
                                                       ...
                (c) Relation back of Amendments. 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 Rule 4(h) for service of the summons and complaint, the
                party to be brought in by amendment:
                         (1) has received such 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


                                                     4
                         party against whom a claim is asserted and such
                         amendment relates back to the date of the original
                         pleading.

M.R.C.P. 15(a), (c) (emphasis added). The italicized portion was added July 1, 1998.

¶6.     As stated above, Curry relies primarily upon federal law to support her position. In a case decided

before the adoption of the Federal Rules of Civil Procedure, the Fifth Circuit reversed an Alabama district

court which had dismissed a defendant on an amended complaint because the amended complaint was not

filed before the statute of limitations period expired. Rademaker v. E.D. Flynn Exp. Co., 17 F.2d 15

(5th Cir. 1927). The plaintiff had filed suit against a company which had sold its interest in the schooner

involved in the injury to the defendant without the plaintiff's knowledge. When the plaintiff learned of the

mistake before the statute of limitations had run, he moved the district court for leave to amend the

complaint to name the new owner as the defendant. Id. at 16. That same day, the district court granted

the motion. However, the amended complaint was not formally filed with the court until after the statute

of limitations had run. Id. The Fifth Circuit explained its reasoning for reversing the district court's

dismissal as follows:

                           Leave was not asked to change any averment of fact upon which
                 liability was asserted, or the grounds upon which recovery was originally
                 sought, but merely to make defendant a party because of its ownership of
                 a stated interest in the schooner. In this state of the pleadings, process was
                 issued and served upon defendant, before any right of action against it was
                 barred. While there are cases to the contrary, we think the better rule,
                 supported by the weight of authority, is that an application for leave to
                 amend, as full and comprehensive as this one is in its averment of facts,
                 stands in the place of an actual amendment.

Id. at 17 (citations omitted). Rademaker was relied upon by a Mississippi federal district court which

held that the filing of a motion to amend and attaching the amended complaint before the statute of

limitations had run "tolled the statute of limitations on the added Plaintiffs' claims for a reasonable time."

                                                       5
Bradley v. Armstrong Rubber Co., 46 F. Supp. 2d 583, 586 (S.D. Miss. 1999). In denying the

defendant's motion to dismiss on grounds that the statute of limitations had run against the new plaintiffs on

the amended complaint, the district court held that an eight-month delay between the district court's granting

the motion to amend the complaint and the ultimate filing of the amended complaint was unreasonable. Id.

at 586. However, it found the defendant was not prejudiced by the delay because it conducted discovery

and deposed the new plaintiffs shortly after the order granting the motion to amend. Id. at 586-87.

¶7.     The Eighth Circuit also relied upon Rademaker when it held that a motion to amend, coupled with

an attached amended complaint, serves to "toll" the statute limitations when filed before the limitations

period ends. Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172 (8th Cir. 1989). We have also

examined cases from federal district courts and various state courts regarding this matter.

¶8.     The new defendants' argument is based upon pre-Mississippi Rules of Civil Procedure cases

decided by this Court. These cases stand for the general proposition that amended complaints filed after

the statute of limitations had run will not withstand the bar of the statute of limitations. See Potts v. Hines,

57 Miss. 735 (1880); Green v. Bd. of Tippah County Supervisors, 58 Miss. 337 (1880); Brown

v. Goolsby, 34 Miss. 437 (1857). The comment to Rule 15 helps put Potts and Goolsby in context:

                 Prior to the Mississippi Rules of Civil Procedure, it was the law that
                 amendments relate back to the date of the original pleading only when,
                 generally, the amended bill stated no new cause of action and brought in
                 no new parties.

M.R.C.P. 15 cmt. (citing Potts and Goolsby).

¶9.     It is noteworthy that Rule 15 makes no reference as to when the relation back provisions in

subsection (c) begin to apply once an answer to the complaint has been filed. This Court has applied the

relation back doctrine to a motion to amend the original complaint filed after the statute of limitations has


                                                       6
run. See Estes v. Starnes, 732 So. 2d 251 (Miss. 1999); Womble v. Singing River Hosp., 618 So.

2d 1252 (Miss. 1993); Parker v. Miss. Game & Fish Comm'n, 555 So. 2d 725 (Miss. 1989).

However, this case concerns a motion to amend filed before the statute of limitations had run but not ruled

upon until after the limitations period had elapsed. The new defendants encourage this Court to apply the

relation back doctrine to this situation as well. In its order of dismissal, this is the route the trial court took.

It specifically held that the filing of a motion to amend before the statute of limitations runs does not toll the

limitations period. It also held the new claims against the new defendants do not relate back to the filing

of the original complaint.

¶10.    According to the first prong of the relation back test, in order to relate back "the claim or defense

asserted in the amended pleading [must arise] out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading." M.R.C.P. 15(c). The original complaint named only

Hart Turner and Paul Stewart as defendants and alleged they both negligently and intentionally caused the

death of Everett Curry. The claims against Dent, Trent, and Ladonna Turner involve a claim of negligent

entrustment. We are uncertain how long ago the asserted negligent act of entrusting the gun used by Hart

Turner to kill Everett Curry was committed or whether that act arose out of the same conduct which killed

Everett Curry. We do, however, agree with the circuit judge that the claims the amended complaint brings

against the new defendants do not relate back to the original filing of the complaint because the

requirements of the second prong--notice and mistake--have not been met by Curry:

                 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 Rule 4(h) for service of the summons and complaint, the party to be
                 brought in by amendment:
                          (1) has received such notice of the institution of the action
                          that he will not be prejudiced in maintaining his defense on
                          the merits, and

                                                         7
                          (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.

M.R.C.P. 15(c). The requirements of these two subsections must be fulfilled before the statute of

limitations has run or within 120 days of the filing of the original complaint. Brown v. Winn-Dixie

Montgomery, Inc., 669 So. 2d 92, 94 (Miss. 1996) (citing Schiavone v. Fortune, 477 U.S. 21, 106

S.Ct. 2379, 91 L.Ed.2d 18 (1986)). Soon after the Winn-Dixie Montgomery, Inc. case, Rule 15(c)

was changed to embody its holding.

¶11.    The record does not show that Trent, Dent, and Ladonna Turner were provided any notice of the

filing of the original complaint. Curry claims that she first learned she may have a cause of action against

them after deposing Ladonna Turner on June 5, 1998. There is no indication in the record the Turners

were served with the original complaint or the motion to amend with the amended complaint attached within

120 days after the statute of limitations elapsed. They have suffered no prejudice save the expiration of

the time to file suit in the statute of limitations. Furthermore, Trent, Dent, and Ladonna Turner were not

being substituted for fictitious parties in the original complaint. The trial court found these facts to be fatal

to Curry's claims against them. The trial court's analysis is correct, and the amended complaint against

Trent, Dent, and Ladonna Turner does not relate back to the original filing of the complaint under Rule

15(c). Since the amended complaint was filed after the statute of limitations ran against these defendants

and does not relate back to the filing of the original complaint, the trial court was correct in dismissing these

defendants.




                                                       8
¶12.    The premises liability claim against Money Pillai is inextricably entwined with Everett Curry's

murder on the premises of Mims One Stop. He therefore passes the first prong of the relation back

doctrine. However, the record does not indicate that he was made aware of the filing of the original

complaint. Nor does the record reflect he was provided a copy of the motion to amend with the amended

complaint attached within 120 days after the statute of limitations ran. Pillai was not named as a fictitious

party on the original complaint nor was his identity confused with Paul Stewart or Hart Turner. Instead,

it seems that Curry was merely tardy in discovering identity of the owner of Mims One Stop (a/k/a Pillai

Grocery) or filing the amended complaint naming Pillai as a defendant. Pillai has suffered no prejudice save

the expiration of the time allowed to bring suit against him under the statute of limitations. The trial court

found these facts insufficient for the amended complaint to relate back to the filing of the original complaint.

We agree that the second prong of the relation back doctrine has not been satisfied as to Pillai either. Since

the amended complaint was filed after the statute of limitations ran against him, the trial court was correct

in dismissing the suit against him.

¶13.    After examining the submitted authority, we conclude that the trial court correctly used the relation

back doctrine found in Rule 15(c). The motion to amend does not "toll" the statute of limitations until the

trial court rules on the motion. The new defendants were provided no notice of this suit nor was there any

mistake as to their identity during the statute of limitations or 120 days after the statute of limitations ran.

It is conceivable that the first notice they had that a complaint was filed against them was when they were

served in late November and early December of 1999, eleven months after the statute of limitations

expired. Therefore, the trial court's ruling is affirmed.

¶14.    As we have reached this conclusion with regard to the first issue, the second need not be

addressed.


                                                       9
        III.    WHETHER THE MINOR'S SAVINGS CLAUSE OF MISS.
                CODE ANN. § 15-1-59 TOLLS THE APPLICABLE
                STATUTE OF LIMITATIONS NOTWITHSTANDING THE
                PRESENCE OF A WRONGFUL DEATH BENEFICIARY
                NOT UNDER A DISABILITY.

¶15.    Curry also argues that notwithstanding whether the statute of limitations is tolled upon the filing of

the motion to amend, the statute of limitations is presently tolling as to Everett Curry's minor children as

beneficiaries of his estate. She cites Miss. Code Ann. § 15-1-59 (1995) in support of her argument. The

new defendants counter that this section only applies where the minors have no one to protect their rights.

They submit that Betty Curry, Everett Curry's wife and administratrix of his estate, is a responsible party

acting on behalf of Everett Curry's minor children and the statute of limitations therefore runs against them

collectively. The trial court found this reasoning persuasive when it dismissed the new defendants.

¶16.    Section 15-1-59 provides:

                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 actions 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.

Miss. Code Ann. § 15-1-59 (1995). This Court has twice considered whether § 15-1-59 applies to minor

children in wrongful death suits. See Thiroux v. Austin, 749 So. 2d 1040 (Miss. 1999); Arender v.

Smith County Hosp., 431 So. 2d 491 (Miss. 1983).4 Each case is discussed below.


        4
         We have also discussed whether this statute applies to claims brought under the Mississippi Tort
Claims Act, see Hays v. Lafayette County Sch. Dist., 759 So. 2d 1144 (Miss. 1999); Marcum v.
Hancock County Sch. Dist., 741 So. 2d 234 (Miss. 1999), claims brought pursuant to our post
conviction relief act, see Cole v. State, 608 So. 2d 1313 (Miss. 1992), claims brought under our uniform
reciprocal enforcement of child support act, see Vice v. Dep't of Hum. Servs., 702 So. 2d 397 (Miss.
1997), and negligence actions (See, e.g., Taylor v. Gen. Motors Corp., 717 So. 2d 747 (Miss. 1998).

                                                     10
¶17.    In Arender, the husband of a deceased filed a wrongful death suit on his own behalf and on behalf

of their two minor children over six years after her death. 431 So. 2d at 492. The trial court dismissed the

case with prejudice as the six year statute of limitations period had elapsed. Id. This Court affirmed the

dismissal as to all the plaintiffs. Id. at 494. The Court gave four reasons why § 15-1-59 did not apply to

wrongful death cases:

                 1) § 15-1-59 restricted its own use to actions brought within Title 15 of
                 the Mississippi Code,

                 2) the section of the Mississippi Code where actions for wrongful death
                 are permitted did not contain its own independent savings clause,

                 3) the wrongful death statute allowed for only one cause of action to be
                 brought, and

                 4) where one party to a joint action is of age when the action accrues, the
                 statute runs against all.

Id. at 492-94. The court noted parenthetically, "[e]ven if there had been a savings in favor of the children,

there being but a single cause of action, such savings would operate in their favor only when there was no

person in esse who could sue on their behalf." Id. at 493. The Court found the children's father met this

requirement. Id. at 494.

¶18.    This Court revisited this decision in Thiroux v. Austin, where the legal guardian of two minor

children filed suit against their father's murderer. Thiroux, 794 So. 2d at 1041. The suit was filed over

three years after the children's father died, and the trial judge dismissed the suit as barred by the three year

statute of limitations. Id. This time, this Court reversed the dismissal, finding that one reason supporting

the Arender decision was now absent, namely § 15-1-59 no longer restricted its own use to actions




                                                      11
brought under Title 15 of the Mississippi Code. Id. This Court concluded that § 15-1-59 does indeed

apply to wrongful death suits but declined to overrule Arender. Id.

¶19.    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 minors 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.5 The wrongful death statute in question

reads in part:

                 The action for such damages may be brought in the name of the
                 personal representative of the deceased person for the benefit of all
                 persons entitled under the law to recover, or by widow for the death
                 of her husband, or by the husband for the death of the wife, or by the
                 parent for the death of a child, or in the name of a child, or in the name
                 of a child for the death of a parent, or by a brother for the death of a
                 sister, or by a sister for the death of a brother, or by a sister for the death
                 of a sister, or a brother for the death of a brother, or all parties
                 interested may join in the suit, and there shall be but one (1) suit for
                 the same death which shall ensue for the benefit of all parties
                 concerned, but the determination of such suit shall not bar another action
                 unless it be decided on its merits.

Miss. Code Ann. § 11-7-13 (Supp. 2002) (emphasis added). 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) those plaintiffs of majority age and sound mind within the statute of limitations and



        5
        The children's guardian in Thiroux did not meet the qualification of being a person in esse
because, under the wrongful death statute, the guardian was not entitled to bring the suit.

                                                      12
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. The nature of this conflict was recognized in Arender:

        The statute of limitations does not look to the character of the plaintiff, but to the nature of
        the action. This is not so as to a saving clause. It contemplates the person, and not the
        action. The claim to exemption is against the current of the law, and not co-extensive with
        its effective provisions.

Arender, 431 So. 2d at 494. The fact that the wrongful death statute has no separate savings provisions

suddenly becomes relevant as § 15-1-59 proves an ill fit to the facts at hand. The fact that the Legislature

has failed to change the requirement that one suit be brought for wrongful death in over fifteen years, but

that it has changed § 15-1-59, indicates that it might be happy with the wrongful death statute as written.

It would be improper for this Court to assume the role of the Legislature and change the requirement that

only one suit be filed by exercise of judicial authority.

¶20.    The wrongful death statute also provides that a suit can be brought in the name of the personal

representative of the deceased on behalf of all, not just persons of majority age. All parties concerned are

allowed to join this suit. The wrongful death statute assumes the minor children of a deceased will be

represented by the deceased's personal representative or represented separately. They would still be

required to join in the single action for damages and allowed to share in any award gained by another

beneficiary. Thiroux's analysis of this situation therefore calls for more guidance.

¶21.    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 that 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


                                                       13
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.

                                             CONCLUSION

¶22.    For the reasons stated above, we hold the statute of limitations has operated to bar the causes of

action brought by the estate of Everett Curry, his wife and minor children against the new defendants named

in the amended complaint: Money Pillai, Trent Turner, Dent Turner, and Ladonna Turner. The trial court's

judgment is affirmed.

¶23.    AFFIRMED.

     SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. EASLEY, J.,
CONCURS IN PART. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DIAZ, J. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY McRAE, P.J., AND GRAVES, J.


        McRAE, PRESIDING JUSTICE, DISSENTING:




                                                      14
¶24.    This is a case involving a wrongful death action in which we uphold the one lawsuit filing pursuant

to Miss. Code Ann. § 11-7-13 (Supp. 2002). While procedurally it may be appropriate to dismiss the

legal guardian's complaint for procedural mistakes made, however, we foreclose the protections and rights

of the minors involved. The minors, who are under the same disability of incompetence and are not able

by law to control legal matters, should not be punished for the ineptitude or oversight of those charged with

protecting their interests. Minors under our rules have two years to appeal. Rule 4 (f) Mississippi Rules

of Appellate Procedure. Because an adult does not take action on a claim it should not preclude minors

who have two years to file or amend an appeal. Whose right should come first, an adult or a minor with

the disability or incompetence? The interests of one with a legal disability should always prevail.

¶25.    The motion to amend to include additional defendants in this case was granted. Seven months later

the legal guardian attempted to file the amended complaint. But the judge ruled that the statute of limitations

had run and therefore dismissed it. Looking to the reasoning behind M.R.A.P. 4(f) , we should, at a

minimum, allow the minors in this case to proceed with the amended complaint.

¶26.    Rule 4 (f) states:

                 In the case of parties under a disability of infancy or unsoundness of mind,
                 the various periods of time for which provision is made in this rule and
                 within which periods of time action must be taken shall not begin to run
                 until the date on which the disability of any such party shall have been
                 removed. However, in cases where the appellant infant or person of
                 unsound mind was a plaintiff or complainant, and in cases where such a
                 person was a party defendant and there had been appointed for him or her
                 a guardian ad litem, appeals to the Supreme Court shall be taken in the
                 manner prescribed in this rule within two years of the entry of the judgment
                 or order which would cause to commence the running of the 30 day time
                 period for all other appellants as provided in this rule.


This Court has allowed a minor, one, by definition, under a legal disability, up to a two year extension of

time in a wrongful death case. See Parks v. Knight, 491 So.2d 217 (Miss. 1986). By analogy, we

                                                      15
should do the same here. The minors in this case should be allowed to proceed under the amended

complaint. Their rights should not be foreclosed; the courthouse doors should not be slammed in their

faces.

¶27.     In Thiroux, the legal guardian filed a wrongful death action nearly three and a half years after the

death of the minors' father. Thiroux v. Austin, 749 So.2d 1040, 1041 (Miss. 1999). There, we

correctly held that the minor savings clause applies in wrongful death cases and allowed the minors to

proceed. Id. We should allow the minors to pursue their interests in this case as well. See id. at 1043-44

(McRae, J., specially concurring) (citations omitted). As I noted in my special concurrence in Thiroux,

Arender v. Smith County Hosp., 431 So.2d 491 (Miss. 1983), should have been overruled to prevent

future injustices to minors in wrongful death cases where a beneficiary not under a disability is present and

allows the statute of limitations to run. Thiroux, 749 So.2d at 1043-44. Today, we are faced with that

exact dilemma. Because we did not overrule Arender, the disability of the minors in this case, and their

interests in this lawsuit, are being foreclosed.

¶28.     In its order, the circuit court specifically recognized that Thiroux held that the minors savings

clause tolls the statute of limitations in wrongful death cases. Yet since we have previously declined to

overrule Arender, the circuit court and the majority are permitting the rights of the minors to be

circumvented. The minors are being stripped of their constitutional right to due process of law; and their

right to a remedy is being extinguished. Id. at 1042- 43. The opportunity is here, yet again, to overrule

Arender. Instead, the chance to protect the rights of minors and to guide litigants is shrugged off.

Additionally, the majority overlooks the alternative measure available to the minors, M.R.A.P. 4(f), which

gives the minors an additional two years in which to exercise their rights.



                                                     16
¶29.    Accordingly, I dissent.

        DIAZ, J., JOINS THIS OPINION.



        DIAZ, JUSTICE, DISSENTING:



¶30.    The majority finds that the minor's savings statute does not operate to toll the statute of limitations

because the wrongful death statute allows only one suit per deceased. I disagree and respectfully dissent.

¶31.    I would find that the minors savings clause protects a minor's rights under the wrongful death statute

regardless of whether a party who is not under a disability brings suit.

As pointed out by Justice McRae in his specially concurring opnion in Thiroux v. Austin, 740 So.2d

1040, 1042 (Miss. 1999), courts should act as the superior guardian for all persons under disability. (citing

Miss. State Bar Ass'n v. Moyo, 525 So.2d 1289 (Miss. 1988)). A minor should be able to seek a

remedy when he or she has the capacity to do so.

¶32.    Here, the administratrix of Everette Curry's estate brought suit on behalf of Everette's heirs,

including his two minor children. The majority correctly states that we have yet to address the effect of the

wrongful death statute's requirement that there be only one suit for recovery in a situation such as this.

¶33.    In Thiroux, suit was not brought on behalf of the minors until the statute of limitations had run.

Here, the suit was brought, but certain defendants were not named in the complaint and the statute of

limitations ran. Yes, a suit was brought and yes, the wrongful death statute says that there shall be only one

suit. However, I cannot reconcile our law that courts act as superior guardians of children with this harsh

result of cutting off these children's right to seek their own remedy. As we allowed the statute of limitation

to be tolled in a case where no suit was brought for the benefit of the children, so should we allow the

                                                     17
statute of limitations to be tolled in a case where a suit was brought and mishandled. Allowing the statute

of limitations to act as a bar in this case will produce the same result as it would have in Thiroux; it would

eradicate the children's chance at obtaining a remedy while they have no choice, no ability to look after their

own welfare. I believe we should continue down the same path we started in Thiroux and make the rights

of minors, who are incapable of seeking their own remedy, more important than the convenience of the

wrongful death defendant. Therefore, I would reverse and remand for further proceedings.

        McRAE, P.J. AND GRAVES, J., JOIN THIS OPINION.




                                                      18
