GRIFFIS, P.J., for the Court:
¶ 1. This appeal considers the dismissal of two personal-injury complaints filed by Jeanette Carpenter against Kenneth Thompson Builder Inc. ("KTB"), Coastal Masonry, Pro Mow Lawn Care Inc., and Capital Security Services Inc. (collectively referred to as the "Defendants"). On the same day, two separate circuit judges in the same court dismissed the cases. We find that it was reversible error to dismiss Carpenter's claims.
¶ 2. On August 15, 2007, Carpenter was injured when she fell on pavement in front
¶ 3. On June 26, 2008, Carpenter filed a complaint in the Circuit Court of Jackson County, Mississippi. The case was styled Jeanette Carpenter v. MDOT and John Does 1-5, Cause No. 2008-00140(2) (referred to herein as "Carpenter I"). The case was assigned to Circuit Judge Kathy King Jackson. Carpenter's complaint asserted a claim for negligence. Carpenter alleged that the defendants owed her a duty and were responsible for the maintenance, upkeep, security, construction, and renovations of the property. She alleged that they breached that duty, and that the breach proximately caused her injuries. Carpenter asked for an award of compensatory damages in the amount of $500,000 and punitive damages.
¶ 4. Just over a year later, on August 20, 2009, Carpenter filed a motion for leave to amend her complaint. The circuit court granted the motion by order dated December 9, 2009. Carpenter filed and served her amended complaint, wherein she added two additional defendants, Mallette Brothers Construction Inc. and J.L. McCool Contractors. Mallette and McCool were contractors who worked on-site improvements to the Welcome Center. Upon service of process, there were three defendants properly before the court in Carpenter I: MDOT, Mallette, and McCool.
¶ 5. On March 4, 2010, Carpenter filed her second motion for leave to amend her complaint to add the Defendants. All counsel signed an agreed order to allow the amended complaint except for counsel for MDOT.
¶ 6. Carpenter's counsel argues that he tried but was not able to get a hearing set before the circuit court prior to the expiration of the limitations period. Specifically, he claims that he attempted to set the motion to amend for a hearing, but that setting the matter "proved to be difficult at best[,] if not impossible." He obtained numerous dates from the court to schedule Carpenter's hearing, but her counsel, and counsel for MDOT, were unavailable on the proposed dates. Carpenter also stated that her counsel requested a telephonic hearing, but the court advised her that it did not entertain this type of hearing via telephone. Carpenter states she was advised that the only available hearing date was November 3, 2010.
¶ 7. Carpenter's counsel also argues MDOT would not consent to allow the amendment to her complaint before the expiration of the statute of limitations. MDOT's reason for refusing to agree to an entry of the order amending the complaint is not in the record and is not the issue for us to decide on appeal. However, MDOT did not file a response to Carpenter's motion for leave to amend and, according to Carpenter, was not available for a hearing before the limitations period would expire.
We note that MDOT does not state the reason it contested Carpenter's attempt to amend her complaint.
¶ 8. As a result, Carpenter claims that she had no option but to file a second lawsuit before the expiration of the statute of limitations on August 15, 2010.
¶ 9. On July 22, 2010, Carpenter filed another complaint in the Circuit Court of Jackson County. This case was styled Jeanette Carpenter v. KTB, Coastal Masonry, Pro Mow Lawn Care, and Capital Security, Cause No. 2010-00177(1) (referred to herein as "Carpenter II"). This case was assigned to Circuit Judge Robert Krebs.
¶ 10. Carpenter argues that she filed this separate lawsuit out of an abundance of caution resulting from the difficulties in getting the order allowing an amendment in Carpenter I and because of her attorney's military deployment during July 2010.
¶ 11. On September 22, 2010, Carpenter served a motion to consolidate Carpenter I and II. This motion was served on all defendants in both cases.
¶ 12. On October 13, 2010, although it was not a named defendant in Carpenter
¶ 13. On November 1, 2010, in Carpenter I, the circuit judge signed the order that granted Carpenter leave to file the second amended complaint. On November 12, 2010, Carpenter filed her second amended complaint, which named the same defendants as Carpenter II.
¶ 14. On November 10, 2010, in Carpenter II, KTB filed a "Motion to Dismiss [B]ased on Prohibition of Splitting Causes of Action and on the Doctrine of Priority Jurisdiction." KTB asked the court to dismiss the complaint and not to consolidate the cases. KTB's argument against consolidation was that it should have been filed in Carpenter I, which had priority jurisdiction. Other defendants filed similar motions.
¶ 15. On December 1, 2010, in Carpenter I, Carpenter served a motion to consolidate Carpenter I and II. This motion was served on all defendants in both cases.
¶ 16. On April 20, 2011, in Carpenter I, KTB filed a "Motion to Dismiss or[,] Alternatively, Motion for Summary Judgment with Incorporated Memorandum of Law." Pro Mow Lawn Care and Coastal Masonry joined the motion. Capital Security filed its own similar motion on May 23, 2011.
¶ 17. On May 25, 2011, a hearing was held in Carpenter I before Judge Jackson. Judge Jackson did not rule at the hearing.
¶ 18. On Monday, June 13, 2011, Judge Jackson entered an order of dismissal in Carpenter I. Judge Jackson recognized the filing of Carpenter II. However, Judge Jackson concluded that the statute of limitations was not tolled and granted the motion to dismiss the claims against the Defendants: KTB, Coastal Masonry, Pro Mow Lawn Care, and Capital Security. Judge Jackson did not address the motion for summary judgment and did not address the motion for consolidation. Judge Jackson did not consider the arguments of claim-splitting.
¶ 19. On Thursday, June 16, 2011, a hearing was held in Carpenter II before Judge Krebs. At the conclusion of the hearing, Judge Krebs announced his decision to grant the motion to dismiss and instructed counsel to prepare an order.
¶ 20. On June 27, 2011, in Carpenter I, Judge Jackson entered a "Final Judgment of Dismissal," which dismissed the Defendants: KTB, Coastal Masonry, Pro Mow Lawn Care, and Capital Security. The final judgment of dismissal was certified as a final judgment under Mississippi Rule of Civil Procedure 54(b).
¶ 21. Also, on June 27, 2011, in Carpenter II, Judge Krebs entered a "Judgment of Dismissal," which dismissed the Defendants: KTB, Coastal Masonry, Pro Mow Lawn Care, and Capital Security.
¶ 22. Carpenter appealed both judgments. The Clerk of the Mississippi Supreme Court assigned separate case numbers to each case. Carpenter filed a motion to consolidate the cases on appeal. Before the case was deflected to this Court, the clerk issued a notice that the supreme court had consolidated the cases for this appeal. There is no order granting consolidation, but the decision to consolidate was made by the supreme court.
¶ 23. The motions that were granted asserted that the circuit court should dismiss the case under the authority of Mississippi Rule of Civil Procedure 12(b)(6). Here, there is no dispute about the facts
¶ 24. This appeal considers the dismissal of Carpenter's claims by two different judges, in two separate actions filed in the same circuit court. The legal doctrines before us, priority jurisdiction and claim-splitting, usually consider two separate cases that are filed between the same parties, but in different courts. Also, when these legal principles are applied, one of the cases will survive and be litigated to its conclusion. Here, neither case survived. In fact, on the very same day, two different judges both dismissed Carpenter's claims against the Defendants.
¶ 25. Mississippi Rule of Civil Procedure 1 requires courts to construe the rules "to secure the just, speedy, and inexpensive determination of every action." The Comment provides:
M.R.C.P. 1 cmt. (emphasis added).
¶ 26. Although a motion to consolidate was filed in each case, neither Judge Jackson nor Judge Krebs ruled on either motion. We would not normally consider a motion that was not ruled on at the trial court level. However, here, the consolidation of two separate cases before two judges of the same circuit court would tend to lead to a consistent and efficient result. The record reveals that both judges were aware of the other proceedings. Yet neither judge discussed or ruled on the motion to consolidate.
¶ 27. Rule 42(a) of the Mississippi Rules of Civil Procedure provides:
The decision of whether to consolidate cases "is within the sound discretion of the trial court." Smith v. H.C. Bailey Cos., 477 So.2d 224, 231 (Miss.1985). Here, it appears that Carpenter I and II were the perfect candidates for consolidation, under both Rules 1 and 42.
¶ 28. Indeed, after both cases were appealed, another motion to consolidate was filed. The supreme court, acting through its legal staff, consolidated these cases on appeal by the entry of a clerk's notice. These cases have now been consolidated and should remain consolidated for our review and on remand. Certainly, the need for this appeal may have been avoided if the trial judges had either consolidated the cases or reassigned the presiding judge of one of the cases, so that one circuit judge would have ruled on both cases. See M.R.C.P. 1 & 42.
¶ 29. Because the cases were decided by two judges on the same day, we must choose where to begin. Considering the consolidation of these cases by the supreme court, we will begin with a review of Judge Krebs's decision in Carpenter II.
¶ 30. On June 22, 2010, when the complaint was filed in Carpenter II, there were no claims pending in Carpenter I between Carpenter and the Defendants. Despite Carpenter's efforts, the Defendants were not parties in Carpenter I. The first lawsuit filed against and served upon the Defendants was Carpenter II.
¶ 31. Judge Krebs announced that he found the following language in Wilner v. White, 929 So.2d 315, 320 (¶ 5) (Miss.2006), was dispositive:
Then, Judge Krebs ruled from the bench:
¶ 32. Although Wilner has a discussion about claim-splitting, it is not actually a claim-splitting case. The supreme court reversed this Court's decision, which was written by then Presiding Judge Leslie King, that considered whether the relation-back doctrine applied. The language of that opinion that has been cited and used as authority in this case was merely the supreme court's response and correction to dicta included in this Court's opinion. The supreme court's analysis of the doctrine of claim-splitting does not apply here.
¶ 33. On January 27, 1997, Iris Wilner was operated on by Dr. Neil White. Id. at 317 (¶ 2). She filed a medical-malpractice complaint against the hospital, a nurse, and several John Doe defendants on February 12, 1998. On January 27, 1999, the day that the statute of limitations expired, Wilner filed a amended complaint against four defendants, including Dr. White and his clinic. Id. at 317-18 (¶ 2). Wilner did not obtain leave of court to file the amended complaint. Id. Dr. White filed a motion to dismiss and argued that Wilner did not get leave of court to amend her complaint before the limitations period expired. Id. at 318 (¶ 2). The trial court denied the motion for leave to amend that was subsequently filed. Then, the trial court dismissed the complaint, finding that the amended complaint was not properly filed and did not relate back to the original complaint. Id. This Court reversed the trial court's judgment and ruled that the trial court should have granted the motion to amend. Id. at 319 (¶ 4).
¶ 34. The supreme court reversed and held:
Wilner, 929 So.2d at 319-21 (¶ 5) (footnote and citations omitted).
¶ 35. There are several reasons why Wilner does not govern this case. First, in Wilner, the supreme court relied on section 62 of the Restatement of Judgments. The court failed to include comment (b), which provides:
(Emphasis added). This comment to the very legal authority the supreme court cited, section 62, clearly shows that section 62 does not apply to the facts in issue in Carpenter II.
¶ 36. In another claim-splitting case, Harrison v. Chandler-Sampson Ins., 891 So.2d 224, 236-37 (¶ 37) (Miss.2005), the supreme court held:
(Citations omitted). Claim-splitting requires the same parties in the different cases. Such was not the case here when Carpenter II was filed.
¶ 37. Wilner also cites Kimball v. Louisville & N.R. Co., 94 Miss. 396, 396, 48 So. 230, 231 (1909), as authority. In 1906, E.D. Kimball was injured when he tried to drive across a railroad track. He sued the railroad company. A trial was held, and Kimball "recovered a judgment against the railroad company for damage done a horse and wagon by the same wrongful act." Id. The railroad company paid the judgment. Kimball then filed a second suit against the same railroad company to recover damages for his personal injuries from the same accident. The railroad company plead the "former recovery in a suit for injury done his property by the same act being beyond dispute." Id. The trial court gave the railroad company a peremptory instruction, and Kimball appealed. Id. at 397, 48 So. at 231.
¶ 38. The supreme court affirmed and held:
Kimball, 94 Miss. at 397, 48 So. at 231 (internal citations omitted). Kimball has no relevance to this case.
¶ 39. Finally, in Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992), the supreme court addressed the issue of claim-splitting:
(Internal citations omitted).
¶ 40. The doctrine of claim-splitting, just like res judicata, requires that the parties be identical. It also requires that a judgment be entered in favor of one of the parties. When Carpenter II was filed, the identity of the parties in Carpenter I and Carpenter II was not the same.
¶ 42. As discussed below, we cannot predict what Judge Jackson would have decided as to the relation-back doctrine, if Carpenter II had been consolidated with Carpenter I. However, the Defendants were served with process in Carpenter II before the limitations period expired. Knowing that the Defendants had been served with process and actually had notice of the claims that were brought in both Carpenter I and II, the decision that the claims would not relate back under Mississippi Rule of Civil Procedure 15(c) does not seem logical.
¶ 43. The facts in this case are not similar to Wilner, Kimball, and Alexander. As a result, when Carpenter II was filed, the doctrine of claim-splitting did not apply. After considering the consolidated cases, we are of the opinion that it was error for Judge Krebs to dismiss Carpenter II based on the doctrine of claim-splitting. On this issue, we reverse and remand Carpenter II.
¶ 44. Although not mentioned in his ruling at the hearing, Judge Krebs's final judgment also stated that Carpenter's complaint in Carpenter II was improper "based on principles of priority of jurisdiction." The final judgment did not give further explanation as to how priority jurisdiction applied here. It does not.
¶ 45. First, we note that priority jurisdiction normally results in transfer of the case or the dismissal of the second case to allow the first to proceed. Second, we note that although Carpenter filed two lawsuits, both were filed in the same court — the Circuit Court of Jackson County. The fact that the cases were assigned to two different judges in the same court district does not mean that the doctrine of priority jurisdiction applies.
¶ 46. In Compere v. Saint Dominic Jackson Memorial Hospital, 71 So.3d 607, 610 (¶ 8) (Miss.2011), the supreme court held:
(Citation omitted).
¶ 47. Here, there is no evidence that Carpenter "ignore[d] the prior action" before she filed Carpenter II. Rather, it appears that she attempted to bring all of her claims in one action, but this effort was prevented by her inability to obtain a hearing. A mere reassignment by one of the judges would have had both cases before the same judge in the same court.
¶ 49. We find that it was error for Judge Krebs to dismiss Carpenter II under the doctrine of priority jurisdiction. Accordingly, we reverse and remand Carpenter II.
¶ 50. In Carpenter I, Judge Jackson's order of dismissal considered "whether these defendants are fictitious parties as contemplated by [Mississippi] Rule [of Civil Procedure] 9(h) and whether the claims relate back so as to fall within the statute of limitations." Judge Jackson ruled that the Defendants were served with the Carpenter I complaint after the statute of limitations expired, and the Rule 15(c) relation-back doctrine did not apply. Looking at it solely from Judge Jackson's perspective, without the consideration of Carpenter II as discussed above, her analysis appears to be correct.
¶ 51. However, we do not view this appeal solely from Judge Jackson's perspective. The supreme court has consolidated these cases for our review. We recognize the Defendants were served with process in Carpenter II before the limitations period had expired. Knowing that the Defendants had been served with process and actually had notice of the claims that were brought in both Carpenter I and II, the decision that the claims would not relate back under Rule 15(c) does not seem logical.
¶ 52. Having reversed and remanded Carpenter II, and because the cases have been consolidated, the question on remand will be whether Carpenter II was filed against the Defendants within the limitations period and timely served on the Defendants under the Mississippi Rules of Civil Procedure. From the pleadings in the record before us, it appears that Carpenter II was filed within the limitations period, and there is no need to consider the relation-back doctrine or Rule 9(h). If the service of process on the Defendants was timely in Carpenter II, the action should be considered timely filed and within the limitations period.
¶ 53. For these reasons, we find that the judgment entered in Carpenter II is reversed and remanded for further proceedings consistent with this opinion. Likewise, we find that the judgment rendered in Carpenter I is vacated and remanded for further proceedings consistent with this opinion. Due to the consolidation of these cases, the cases are remanded to the Circuit Court of Jackson County. The Clerk of the Circuit Court of Jackson County shall consolidate these cases and assign them to Judge Jackson, who was the presiding judge in Carpenter I.
LEE, C.J., IRVING, P.J., BARNES, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J. MAXWELL, J., NOT PARTICIPATING.
CARLTON, J., dissenting:
¶ 55. I respectfully dissent from the majority's opinion. Rather than reversing and remanding for further proceedings, I would instead affirm the circuit court's judgment.
¶ 56. In turning to briefly review the pertinent facts, the record reflects that Carpenter sustained injuries as a result of falling on the pavement in front of the Jackson County Welcome Center. On June 26, 2008, Carpenter filed her lawsuit styled Jeanette Carpenter v. MDOT and John Does 1-5, Cause No. 2008-00140(2) ("Carpenter I"), in the Jackson County Circuit Court, alleging that she had sustained her injuries in the parking lot of the Welcome Center after tripping and falling over loose tape. On August 20, 2009, Carpenter filed a motion for leave to amend her complaint. The circuit court entered an order on December 9, 2009, allowing Carpenter to amend her complaint and name Mallette and McCool as defendants under the original complaint.
¶ 57. On March 4, 2010, Carpenter filed for leave to amend her complaint a second time to add additional parties — KTB, Coastal Masonry, Pro Mow Lawn Care, and Capital Security. Counsel for all parties executed an agreed order allowing Carpenter to amend her complaint, with the exception of counsel for MDOT. In her brief, Carpenter alleges that she attempted to set the motion to amend for a hearing, but she claims that setting the matter "proved to be difficult at best[,] if not impossible." Carpenter further claims she obtained numerous dates from the court to schedule her hearing, but her counsel, and counsel for MDOT, were unavailable on the proposed dates. Carpenter states that she requested a telephonic hearing, but the court advised her that it did not entertain this type of hearing via telephone. Carpenter states she was advised that the only available hearing date was November 3, 2010. The statute of limitations on her lawsuit expired on August 15, 2010.
¶ 58. On July 22, 2010, less than a month before the statute of limitations expired on her claim, Carpenter filed a separate lawsuit in Jackson County Circuit Court, Cause No. 2010-00177(1) ("Carpenter II"). Carpenter claimed she filed this separate suit out of an abundance of caution resulting from the difficulties in scheduling her hearing. The defendants named in this suit were KTB, Pro Mow Lawn Care, Capital Security, and Coastal Masonry. In Carpenter II, Carpenter alleged that she tripped and fell due to negligently installed temporary striping tape in the Welcome Center parking lot and that she sustained injuries from her fall. She requested the same amount of damages as in Carpenter I.
¶ 59. On November 1, 2010, ten weeks after the expiration of the statute of limitations
¶ 60. On April 20, 2011, the Defendants filed their motion for summary judgment in Carpenter I, asserting that the claims were barred by the statute of limitations. The Defendants claimed they failed to receive proper notice of Carpenter's lawsuit within the time required by Mississippi Rule of Civil Procedure 15(c) to allow the second amended complaint to relate back to the filing of the original complaint. On May 25, 2011, the circuit judge held a hearing on Carpenter's motion to consolidate and on the Defendants' motion to dismiss. Carpenter's motion to consolidate was denied. The circuit judge granted the motion to dismiss, and entered its order of dismissal in Carpenter I on June 13, 2011. On November 10, 2010, the Defendants filed a motion to dismiss in Carpenter II. A hearing was held on June 16, 2011. The motion to consolidate was denied, and the circuit court granted the motion to dismiss Carpenter II, finding that Carpenter had improperly split her causes of action.
¶ 61. On appeal, Carpenter claims that her complaint in Carpenter II should be considered an amendment to the complaint in Carpenter I. Carpenter explains that in filing Carpenter II, she simply added additional parties whose identities were initially unknown at the time of filing Carpenter I, thus satisfying Mississippi Rule of Civil Procedure 9(h) and relating the date of the filing of the Carpenter II complaint back to the date of the original pleading. As stated, the record reflects that the trial court dismissed Carpenter I after determining the following:
Acknowledging that a motion to amend fails to toll the statute of limitations until the trial court rules on the motion, the trial court's judgment held that Carpenter had filed the amended complaint outside of the three year statute of limitations, and therefore Carpenter's claim should be dismissed. In Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006), the supreme court explained that when a trial court considers a motion to dismiss, "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 his claim."
¶ 62. Rule 9(h) provides:
¶ 63. I submit that such is not the case in the present matter. Carpenter named five "John Doe" defendants in the original complaint, but she failed to substitute any of the defendants' names for a "John Doe"; instead, Carpenter simply added the defendants' names to the complaint along with the "John Does" listed. The five "John Does" remained as named defendants in the amended complaint in Carpenter I. The supreme court has held that such action constitutes
Wilner, 929 So.2d at 322 (¶ 6) (citations omitted).
¶ 64. As the supreme court explained in its recent opinion in D.P. Holmes Trucking, LLC v. Butler, 94 So.3d 248, 254 (¶ 17) (Miss.2012), "[t]he analysis does not end with Rule 9(h)." The record reflects that Carpenter filed her original complaint in Carpenter I on June 26, 2008, and she filed her second amended complaint on November 12, 2010. KTB asserts in its brief that KTB's president testified that he first learned of Carpenter's claims on August 8, 2010 — outside of the 120-day period from the filing of the original complaint. Since the 120 days to effect service under Mississippi Rule of Civil Procedure 4(h) have expired, I turn next to review whether Carpenter's amended complaint will relate back under Rule 15(c).
¶ 65. For the claim in an amended complaint "to relate back to the original complaint under Rule 15(c) against a new party, the new claim must arise out of the same conduct, transaction, or occurrence as the original complaint." D.P. Holmes, 94 So.3d at 254 (¶ 17). In addition, the new party "must have had notice of the suit within 120 days from the filing of the original complaint." Id. Rule 15(c) mandates that in order for the amended pleading to relate back, within the 120-day requirement to effect service under Mississippi Rule of Civil Procedure 4(h), the newly named party must:
M.R.C.P. 15(c).
¶ 66. As stated, the Defendants were added to the complaint after the 120 days for effecting service had passed. However, the claims in the second amended complaint stem from the same conduct, transaction, and occurrence identified in the original complaint. Yet Carpenter fails to provide any evidence that the Defendants were, or should have been, aware of the pending litigation. Recognizing that appellate
¶ 67. The trial judge in Carpenter II made the following findings in his judgment of dismissal:
¶ 68. The Mississippi Supreme Court has addressed "the long-standing principal of law in Mississippi prohibiting a party from splitting a cause of action into the subject of two different actions," known as claim-splitting. Wilner, 929 So.2d at 320 (¶ 5). The Wilner court cited to the early supreme court decision of Kimball v. Louisville & N.R. Co., 94 Miss. 396, 48 So. 230, 231 (1909), which states:
In Hill v. Carroll County, 17 So.3d 1081, 1084 (¶ 8) (Miss.2009) (citing Anderson v. LaVere, 895 So.2d 828, 832 (¶ 10) (Miss. 2004)), the supreme court further explained: "The doctrine of res judicata bars parties from litigating claims `within the scope of the judgment' in a prior action. This includes claims that were made or should have been made in the prior suit."
¶ 69. Carpenter argues that none of the causes of action alleged against the Defendants in Carpenter I or the Defendants in Carpenter II had been litigated or adjudicated. However, I note that in Wilner, the supreme court affirmed the trial court's grant of summary judgment based on its finding that the amended complaint did not relate back to the original complaint under Rule 15(c) and was time-barred. See Wilner, 929 So.2d at 324 (¶ 10). As in Wilner, no adjudication on the merits occurred in the present case. Accordingly, I find no error in the trial court's dismissal of Carpenter II based on its finding of claim-splitting.
¶ 70. I turn next to address Carpenter's argument that the doctrine of priority jurisdiction supports her claim that the trial court erred in dismissing Carpenter II, rather than consolidating it with Carpenter I. In Compere v. St. Dominic Jackson Memorial Hospital, 71 So.3d 607, 610 (¶ ¶ 8-9) (Miss.2011) (citations omitted), the supreme court explained:
(Emphasis added). See also Petition of Beggiani, 519 So.2d 1208, 1210 (Miss.1988).
¶ 71. In her argument that the application of priority jurisdiction to the present case yields a result in her favor, Carpenter cites Crawford v. Morris Transportation, Inc., 990 So.2d 162, 169 (¶ 25) (Miss.2008), and acknowledges that priority jurisdiction arises when there are "two suits between the same parties over the same controversy... brought in courts of concurrent jurisdiction." However, she insists that Carpenter I and Carpenter II each constitute an original action involving separate causes of action against different defendants and alleging different tortious conduct that resulted in her injuries. Despite Carpenter's misinterpretation of the application of this principle, I agree that priority jurisdiction does indeed apply to the present case.
¶ 72. In examining the complaints filed in the present action, I note that the original complaint in Carpenter I lists MDOT and John Does 1-5 as the defendants. In the complaint, Carpenter alleged that the defendants negligently breached their duties to keep the premises of the Welcome Center in a reasonably safe condition; failed warn Carpenter of the defective condition of the parking area, specifically of the danger posed by the improper installation of the parking lot striping; and failed to protect Carpenter from the danger of reasonably foreseeable injury occurring from the use of the area around which the temporary parking lot striping was applied. The amended complaint in Carpenter I lists the following defendants: MDOT, Mallette, McCool, and John Does 1-5. The second amended complaint lists the following defendants: MDOT, Mallette, McCool, KTB, Coastal Masonry, Pro Mow Lawn Care, Capital Security, and John Does 1-5. The amended complaint and second amended complaint alleged causes of action against the Defendants that were virtually identical to those alleged in the original complaint.
¶ 73. The complaint in Carpenter II lists the defendants as KTB, Coastal Masonry, Pro Mow Lawn Care, Capital Security, and John Does 1-5. In reviewing the Carpenter II complaint, I find that Carpenter again alleges causes of action against the Defendants that are virtually identical to those alleged in Carpenter I. Since Carpenter I and Carpenter II constitute "two ... suits between the same parties over the same controversy [that] are brought in courts of concurrent jurisdiction," the application of priority jurisdiction bolsters the trial court's dismissal of Carpenter II. Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel, 804 So.2d 1000, 1006 (¶ 15) (Miss.2001).
¶ 74. As a result, I respectfully dissent from the majority's decision.
ISHEE, J., JOINS THIS OPINION.
