author: COBB, Presiding Justice, EASLEY, Justice,

text:
    Joseph K. SPEETJENS, Dr. Faser Triplett, et al. v. MALACO INC., et al.
    No. 2004-CA-01098-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.

      Amanda Povall Tailyour, Grady F. Tolli-son, Jr., Oxford, T. Roe Frazer, Edward J. Peters, Jackson, attorneys for appellants.
    Glenn Gates Taylor, Ridgeland, Donald James Blackwood, Jr., Christy Michelle Sparks, Ridgeland, Alex A. Alston, Jr., Terry R. Levy, Jackson, for attorneys for appellees.
   COBB, Presiding Justice,

for the Court.

¶ 1. The Madison County Chancery Court, in the introduction of its findings of facts and final judgment, explained the procedural history of this case, as follows:

The Joseph K. Speetjens, et al. versus Malaco, Inc., et al., cause of action was filed in the Chancery Court of Madison County, Mississippi on 11 April, 1997. The case was bifurcated and after hearing the first portion, involving a joint venture, final judgment was entered by the Court in 2001. In 2002, Dr. Triplett and others filed two separate actions in the Chancery Court of the First Judicial District of Hinds County, Mississippi. These complaints (Malaco II and Malaco III) assert the same claims as the first suit, and therefore, the Hinds County cases were consolidated with the initial Malaco case by Order dated November 24, 2003.
The cases were tried for five days in November of 2003. Defendants in the actions were Thomas J. Couch, Sr., Stewart Madison, Gerald Stephenson ( [sic] the directors and officers of Malaco, Inc.; Northside partners, a partnership (NSP); Couch & Madison, a partnership (C & M); Couch, Grubman & Madison, a partnership (CGM); Burdette Russ; Tann Brown & Russ; Robert A. Malouf; Robert A. Malouf Law Firm; Alan J. Grubman; Select-O-Hits, Inc. (SOH); and Malaco, Inc. Profit Sharing Plan and Trust (Pension Plan). Prior to trial, each filed Motions for Summary Judgment. SelecWO-Hits and the Pension Plan were dismissed at the beginning of the trial, while the remaining Motions were taken under advisement. At the conclusion of the Plaintiffs’ ease, the Court also dismissed the Defendants Burdgett (sic) Russ, Tan[n] Brown and Russ, Robert A. Malouf, Robert A. Mal-ouf Law Firm, and Alan J. Grubman. Therefore, the only remaining action(sic) pending were the derivative claims asserted against Couch, Madison, and Stephenson, and the partnerships NSP, C & M, and CGM.

¶ 2. Finding that Speetjens was statutorily barred from suing derivatively, pursuant to Miss.Code Ann. section 79-4-7.42 (Rev.2001) and all other claims were without merit, the trial court entered judgment dismissing the case. Speetjens subsequently filed a timely notice of appeal. We agree with the trial court’s determination that the claims were statutorily barred, and because that determination is dispositive of this case, we affirm.

FACTS

¶ 3. The chancellor also provided detailed findings of fact, which we also include verbatim, as follows:

Malaco, Inc. was formed in 1968 by Thomas J. Couch, Sr. and Mitchell Mal-ouf. Malaco stock was initially set at $2.50 per share and the initial board of directors consisted of nine members, which included Couch and Stephenson. When the attendance qf the board of directors decreased to a point where a quorum was no longer available, the number of members was gradually reduced to three, the Defendants, Couch, Madison, and Stephenson. They now remain the board of directors as well as the officers of the corporation. Together they own approximately 80% of Mala-co’s outstanding shares of stock.
The board conducted annual stockholder’s meetings and furnished audited, financial statements to the stockholders each year. These financial statements disclosed the compensation paid to the officers, directors, and employees each year, and also contained notes concerning related party transactions.
At each annual shareholders meeting, the floor was opened for nominations to the board of directors. Until this lawsuit was first filed in 1997, the only shareholder’s (sic) nominated for the board of directors were Couch, Madison, and Stephenson. Stockholder’s attendance at these annual meetings was consistently low, generally between five or six, including board members. The amount of compensation paid to the officers, directors, and employees as disclosed on the financial statement was never questioned by any of the shareholders.
Malaco, Inc. is, and always has been, in the business of recording and selling primarily black gospel and rhythm and blues music. They sold pre-recorded music products such as cassettes, compact discs, and videos; and also licensed to third parties performance and recording music rights that it owned. Malaco initially had one studio located in the city of Jackson, Mississippi for the recording of its music products.
During the years after its inception, Malaco acquired several music interests. In 1986, Malaco acquired Savoy Records for approximately one (1) million dollars. Savoy, at the time was the oldest black gospel record company in the United States and owned thousands of “record masters”, actual recorded products. This purchase was made by a combination of cash, bank financing, and assumption of Savoy’s existing debts. Ma-laco immediately after the acquisition sold enough Savoy products to pay for half of the purchase price. This purchase was discussed in detail at Malaco’s 1987 shareholder’s meeting.
In 1996, Malaco, in an effort to acquire a distribution outlet for its records, acquired a 50% interest in Selects O-Hits, Inc. (SOH). Select-O-Hits was a record distributor that sold to retail outlets such as Wal-Mart, Be-Bop, etc. This purchase was disclosed in Malaco’s annual audited financial statement for the year ending November 30, 1995, and also in Malaco’s letter to shareholders dated May 23, 1996. The shareholders agreed to waive any potential conflicts that this purchase may involve.
In 1992, Malaco purchased a small blues label called Waldoxy Records for the purchase price of $25,000. This label was formed by Thomas J. Couch, Jr., son of Thomas J. Couch, Sr. The investment was recouped by Malaco during the first year after its acquisition.
In 1989, Malaco attempted to branch out into country music. They opened an office in Nashville to sign writers and singers to record country songs. This effort was unsuccessful and the office was finally closed in 2003 after a total loss of approximately $500,000.00.
Occasionally it became necessary for Malaco to rent a recording studio located in Mussel Shoals, Alabama. It was called the Mussel Shoals Sound Studio, Inc. (MSS). They also recorded songs that were in the MSS publishing catalog and paid publishing royalties and studio rentals to MSS. In 1985, the owners decided to sell Mussel Shoals Studio. Malaco’s directors were interested in buying the studio. The proposed sale price was in excess of one (1) million dollars. Malaco did not have this amount of money available. The directors sought to secure financing and contacted several banks in Jackson, Mississippi and also banks in Alabama. None of these banks were willing to lend money to Malaco without Couch, Madison, and Stephenson personally guaranteeing the loan. They were not willing to assume such a personal liability for Malaco.
After determining that Malaco, Inc. was unable to finance the purchase of MSS, the three directors decided they would personally attempt to buy MSS. They formed Northside Partners (NSP), which purchased MSS in August of 1985 for $1,050,000. This included the studio building, the recording equipment, and some publishing catalogs. The purchase was disclosed to the Malaco shareholders at the 1986 annual stockholders meeting where it was discussed by the directors and other stockholders, including the Plaintiff, Ed Butler.
In February of 1989, NSP sold the MSS building to Malaco for $300,000. Since this sale, Malaco has leased the building back to NSP for $2,000 per month, plus all taxes, repairs, and insurance. Malaco has collected in excess of $350,000 in rent with no expenses for taxes, insurance, repairs and improvements since the sale. The sale of the building to Malaco and the lease back to NSP was disclosed in each of Malaco’s annual financial statements for the yeai-s ending November 30, 1989, November 30,1990, and November 30,1991.
In addition to the August 1985 purchase of MSS, NSP later acquired some smaller musical assets, but MSS constituted the vast majority of NSP’s assets. On September 25, 1986, NSP acquired master recordings and publishing catalogs known as “More of the Same Music”, “Music and More”, “Poncho Case Music”, “Sure Been Good Music”, and “Aladrian Music”. In June of 1989, NSP purchased “Southern Grand Alliance” and “Songs of the Grand Coalition” catalog. In July of 1990, NSP purchased catalogs of New Albany Music and Hoosia Music. On April 13, 1994, NSP purchased a catalog called “Most Urgent Music”. None of these music catalogs were considered to be appropriate for Malaco. None were traditional black gospel music nor rhythm and blues music and they would not be considered to be a profitable investment for Malaco. Additionally, Malaco does not purchase just publishing catalogs.
In the early '80’s, Thomas Couch and Stewart Madison formed the Couch and Madison partnership to invest in various financial opportunities such as oil and gas wells, horses, stocks, loans, and miscellaneous music interests. Over the years C & M partnership entered into a series of personal loans with Mr. Fredrick Knight, a songwriter and producer. Mr. Knight would use some of his musical assets as collateral to secure these loans, as he did with the purchase of a Mercedes Automobile. As a result of the nonpayment of these loans, C & M partnership acquired four sets of musical assets: the first two dated November 17, 1983; the third dated August 7, 1982; and, the fourth dated May 5,1995. Since Malaco is not in the business of loaning money nor [were] the assets the type that Malaco recorded and sold. These assets were not considered to be a corporate opportunity for Malaco, Inc.
In January of 1990, C & M Partnership entered into an • agreement with George Hocutt to purchase an undivided one-half interest in the “Best Music” and the “Apollo Records” catalog. This music also was not the type of music Malaco dealt in, and in addition, Mr. Hocutt refused to sell these items to Malaco. He did not want to have a corporation as a partner.
In May of 1990, the partnership of Couch, Grubman, and Madison was formed to purchase two small country music catalogs. These catalogs covered Leahrae Music and Brandwood Music. These are country music catalogs and were not the type that Malaco was interested in or desired to have. CGM also acquired the music composition “Careful Man”. This composition had been recorded by Malaco and they began paying publisher’s royalties to Mr. Jimmy Ginn. He was the owner of the song at that time but had a misunderstanding with Malaco over the payment of royalties.
As previously stated, the annual audited financial statements, which were sent to the shareholders each year, contained a section called “Selling, General, and Administrative Expenses”. This section included all of the compensation paid to the officers and employees of Malaco, Inc. While it did not break out separately each officers annual compensation, the statement was proper under generally accepted accounting principles. Although some of the stockholders were aware that this line entry included compensation paid to the officers, none ever inquired as to the individual amounts of compensation paid to the officers.
From 1992 to 1996, the officers and directors received more than a million dollars each in annual salaries and bonuses. Dividends were distributed to the shareholders in 1983 and every year between 1986 and 1996. The value of the stock of Malaco varied from as little as $1.50 per share to as much as $300 per share.
The Internal Revenue Service audited Malaco several times in the 1990s. In 1995, after conducting an audit, the IRS determined that the total compensation paid to the directors for the year ending 1992 was excessive in the amount of $125,000; and, for the year ending 1993, was excessive in the amount of $150,000. This finding was not contested by the directors and the taxes were paid based on that finding. No other annual compensation to directors was questioned by the IRS.
The three Defendants in this action performed all of the different job functions related to the recording, production, marketing, promotions, and numerous other functions required in the day to day operations of Malaco. The directors performed as many as fifteen (15) separate functions required in the operation of a recording company.

Speetjens asserts on appeal that the chancellor committed manifest error by: (1) refusing to recognize a futility exception to the written demand requirement; (2) finding that certain claims were barred by the statute of limitations; (3) finding that Couch, Madison, and Stephenson did not breach their fiduciary duties; (4) dismissing the claims against Robert Malouf and the Malouf Law Firm; (5) dismissing the claims against Allen Grubman; (6) dismissing the claims against W. Burdette, Russ, and Tann, Brown and • Russ Co., Ltd.; (7) refusing the request for a jury-trial; and (8) failing to consider that sound public policy is dependent upon absolute trust in the officers and directors of publicly held corporations.

ANALYSIS

¶ 4. A chancellor’s findings of ultimate and evidentiary facts will not be disturbed on appeal if supported by substantial evidence. Longanecker v. Diamondhead Country Club, 760 So.2d 764, 767 (Miss.2000). Further, the chancellor’s findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or applied the incorrect legal standard. Id.

I. WHETHER THE CHANCELLOR ERRED BY REFUSING TO RECOGNIZE A FUTILITY EXCEPTION TO THE WRITTEN DEMAND REQUIREMENT

¶ 5. Section 79-4-7.42 of Miss.Code Ann. (Rev.2001) provides in its entirety:

No shareholder may commence a derivative proceeding until:
(1) A written demand has been made upon the corporation to take suitable action; and
(2) Ninety (90) days have expired from the date the demand was made unless the shareholder has earlier been notified that the demand has been rejected by the corporation or unless irreparable injury to the corporation would result by waiting for the expiration of the ninety-day period.

¶ 6. Whether a futility exception should be recognized in the application of this written demand requirement is a question of first impression before this Court. It is undisputed in this case that no written demand was ever made to Ma-laco to take suitable action. Speetjens nevertheless asserted that this derivative action should be allowed to proceed because the “[djemand as required by Miss. Code Ann. 79-4-7.42 would have been futile” since the directors of Malaco “are in absolute control of the corporation and [they] unlawfully breached their fiduciary duties, usurped corporate opportunities and awarded themselves excessive salaries and extravagant bonuses.” Therefore, Speetjens argued, demand was not a requirement for this action. Speetjens further argued that this Court has never ruled that the prerequisites of section 79-4-7.42 are mandatory for every derivative action. Malaco, on the other hand, argued that the plain meaning of section 79-4-7.42 requires written demand in every derivative action suit. The chancellor heard these arguments and held that the shareholders lacked standing to bring this suit on behalf of Malaco because they did not first make written demand on Malaco to take suitable action. In his final judgment, the chancellor found section 79-4-7.42 to be an unambiguous requirement to derivative suits.

¶ 7. On appeal, Speetjens first argues that other jurisdictions, including Delaware, have held that in situations where demand is futile, as would be the case where all the directors are interested, written demand is excused. He also argues that the chancellor incorrectly relied upon Longanecker, 760 So.2d 764, in which this Court affirmed the trial court’s holding that shareholders who failed to make a written demand as required by Miss.Code Ann. section 79-11-193(3) (Rev.2001) did not have standing to sue derivatively. Speetjens correctly notes that Longanecker construes Miss.Code Ann. section 79-11-193(3), which applies to non-profit corporations, whereas Malaco is a for-profit corporation. We agree with Malaco that this distinction is not controlling in the present situation. The wording of the two statutes differs. The requirement of a written demand in section 79-4-7.42 is absolute; the requirement in section 79 — 11— 193(3) is conditional, stating that the complaint must “allege with particularity the demand made, if any, to obtain action by the directors and either why the complainants could not obtain the action or why they did not make the demand.” This distinction inures to the benefit of Malaco.

¶ 8. Speetjens also points to three places in Longanecker where this Court alluded to a futility exception to written demand. In the first instance, this Court was merely reciting the non-profit corporation’s argument that the Longaneckers, who were shareholders, failed to show they made a written demand or demand would be futile. Longanecker, 760 So.2d at 768. This Court did not say that a futility exception to the demand requirement exists. In the second instance, this Court cited cases in other jurisdictions which held a demand futility argument was not waived by a failure to raise it as an affirmative defense where the allegation was denied in a responsive pleading. Id. at 769 (citing Renz v. Carota, No. 87-CV-487, 1991 WL 165677, *2 (N.D.N.Y.1991), aff'd mem. sub nom. Renz v. Beeman, 963 F.2d 1521 (2d Cir.1992)). Speetjens misinterprets this statement. This Court was simply addressing the shareholders’ argument that the appellee waived any objection to the derivative nature of this action by failing to raise it as an affirmative defense in its answer or by failing to raise it until the eve of trial. Id. at 768. This Court was not making any statement concerning a futility exception. Third, Speetjens cites Longanecker for the proposition that “generally derivative plaintiffs must make written demand.... ” Id. at 770. However there are other exceptions to written demand that do not involve futility: namely, where the shareholder has already been notified that demand has been rejected by the corporation, and where irreparable injury to the corporation would result. See Miss.Code Ann. § 79-4-7.42. Once again, Speetjens misinterprets this Court’s language in Longanecker. Section 79^4-7.42 is clear on its face. “Where a statute is clear and unambiguous, no further statutory construction is necessary and the statute should be given its plain meaning.” Miller v. Meeks, 762 So.2d 302, 305 (Miss.2000).

¶ 9. Determination of whether Miss. Code Ann. section 79-4-7.42 would be better if it contained an exception for futility, or even how other state courts have interpreted their comparable, but not identical, corporate law statutes is not required of us in the present case. The fact is, Mississippi’s written demand statute does not contain an exception for futility, and unless and until the Legislature decides to include one, it does not exist. Further, this Court will not be alone in this holding. See, e.g., McCann v. McCann, 138 Idaho 228, 61 P.3d 585, 591-93 (2002) (with the identical demand statute, the Supreme Court of Idaho ruled that there is no exception for futility); Allen ex rel. Allen & Brock Constr. Co. v. Ferrera, 141 N.C.App. 284, 540 S.E.2d 761, 765 (2000) (the Court of Appeals of North Carolina held that the identical demand statute did not allow for a futility exception). But see Guarino v. Livery Limited, Inc., No. X04CV030127824, slip op. at 2-3 (Conn.Super.Ct. Nov.18, 2003); with Tibball v. Galog, No. CV94 0311149S, slip op. at 3 (Conn.Super.Ct. Aug.25, 1994) (Connecticut courts have interpreted a futility exception into their demand statute, which is identical to Mississippi’s. However, the Connecticut courts have reached this result by citing to cases from other jurisdictions that have significantly different demand statutes).

¶ 10. Hence, the trial court correctly found that “[s]ome jurisdictions have recognized a futility exception to the written demand prerequisite for filing a derivative action but Mississippi, however, has never recognized a futility exception to the statutory written demand requirement, and this Court will not attempt to fashion one here.” We agree with the chancellor’s sound reasoning. The demand requirement provides an opportunity to correct objectionable actions, without the expense of litigation, and it allows directors and managers to be alerted to and consider the shareholders’ position. Although we thoroughly reviewed all issues presented, our determination that Speetjens failed to comply with the statutory requirements is dispositive, and thus we decline to address the other issues.

CONCLUSION

¶ 11. We affirm the judgment of the chancery court. There is no futility exception and Speetjens’ claims are statutorily barred.

¶ 12. AFFIRMED.

SMITH, C.J., WALLER, P.J, CARLSON AND DICKINSON, JJ„ CONCUR. DIAZ AND GRAVES, JJ„ DISSENT WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. RANDOLPH, J., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting.

¶ 13. The majority does not recognize a futility exception to corporate demand. Under the facts at hand, I must respectfully disagree and write briefly to address my concerns as well as other issues raised in the appeal.

¶ 14. This Court in Beckett v. Planters’ Compress & Bonded Warehouse Co., 107 Miss. 305, 65 So. 275, 276 (1914), applied the legal principle that the law does not require a party to perform a “vain” or “fruitless” action. In Beckett, a stockholder sued Planters’ and its directors for investing capital stock in an ice and cold storage plant without his consent. Id. The venture failed, and Planters’ had to liquidate all its property to settle its indebtedness. Id. These actions resulted in the corporations’ inability to distribute anything to the shareholders. Id. This Court noted the basis of the directors’ demurrer. The directors’ argued that (1) there was no indication that suit would not have been filed had an application been made to the shareholders, and (2) Beckett never sought to have the alleged wrongs redressed by them or the corporation. Id. This Court did not agree with the directors’ argument. This Court held:

It is true that ordinarily, before a stockholder can maintain a suit of this character, he must exhaust all reasonable means within his reach to obtain redress within the corporation itself; and should the directors, when requested, decline to institute the suit, an appeal, if practicable, should be made to the stockholders themselves to take such action as they may deem proper and have the power to do. From the allegations of this bill, however, it appears that the offending directors themselves either own or control the majority of the stock of the corporation, so that an appeal either to the directors or to the stockholders for redress was not necessary, for it is not to be expected that under such circumstances any redress would have been granted, and the law never imposes upon any one the doing of a vain and fruitless thing.

Id. (Emphasis added).

¶ 15. Here, the facts are similar to those in Beckett. Couch, Stephenson, and Madison are the sole members of the Board of Directors and sole corporate officers of Malaco. These three members own over 85% of the corporate shares. One of the officers, Stephenson, testified that he would not have sued the corporate officers/directors if a demand had been made by the minority shareholders. Therefore, any demand by Speetjens would have been “fruitless” or “vain” as recognized by this Court in Beckett.

¶ 16. The three corporate officers/directors breached their fiduciary duty to the corporation and the shareholders. The record reflects that the three directors of Malaco paid themselves 88% of the gross profits as officer compensation from 1987 to 1996. In 1992,1995, and 1996, the three officers each received an average of over $1 million in compensation and bonuses. In 1989, 1990, 1991, 1993, 1994, 1997, 1998, and 1999, each of the three officers received an average of over $500,000 in compensation and bonus with many of these years averaging almost $600,000 or more in annual compensation.

¶ 17. Directors and officers stand in a fiduciary relationship to a corporation and its shareholders. Derouen v. Murray, 604 So.2d 1086, 1092 (Miss.1992). This Court in Derouen further held:

We begin with some basics. Officers and directors have well defined duties owed to the corporation they serve and, equitably, to its shareholders. In the first place, an officer or director owes the corporation a duty of care, a duty to perform the officer’s or director’s functions in good faith, in a manner that he or she reasonably believe to be in the best interest of the corporation, and with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances.

Id. In Kisner v. Coffey, 418 So.2d 58, 61 (Miss.1982), this Court found that the “plundering of a ‘close’ corporation by the siphoning off of the profits by excessive salaries or bonus payments” is equivalent to oppressive conduct. This Court further held that “the question of what is ‘oppressive’ conduct by those in control of a ‘close’ corporation as its majority stockholders is closely related to what we agree to be the fiduciary duty of a good faith and fair dealing owed by them to its minority stockholders.” Id.

¶ 18. Couch, Madison, and Stephenson, the officers and directors of Malaco, had the majority of Malaco shares, over 85%, to control the election of the Board of Directors. These individuals owed a fiduciary duty to the minority shareholders of Malaco. These three individuals had the power, majority corporate shares, and self-appointed roles of being both officers and directors of Malaco. Therefore, Couch, Madison, and Stephenson were in control of setting their own salaries and any bonuses. These facts placed them in an unusual situation. The Plaintiffs allege that these individuals earned as much as 50%, 67%, 98% and 104% of gross profits in certain single years. The excessive salaries paid to the officers/directors drained corporate profits for their personal gain. Therefore, Malaco did not have the financial means to avail itself of corporate opportunities to benefit the corporation and its shareholders.

¶ 19. The officers/directors owed a fiduciary duty to the corporation and its shareholders. The payment of the excessive salaries and bonuses consistently drained Malaco of corporate funds year after year. Malaco was unable to take advantage of business opportunities that these three officers diverted to their individually owned companies. Had the officers/directors not diverted such excessive compensation and bonuses, then Malaco would have been in a better position to avail itself of more business opportunities. The actions by the officers/directors were abuses of their corporate positions.

¶ 20. The officers/directors paid themselves a significant amount of the corporate gross profits. This case reeks of corporate greed and breach of fiduciary duty. I would reverse the trial court’s ruling that the officers and directors did not breach their fiduciary duty by raiding 88% of the gross profits to pay themselves excessive compensation. Accordingly, I would reverse the trial court’s judgment and remand this case for further proceedings.

      . Appellants Joseph K. Speetjens; Dr. Faser Triplett; Dean Blackwell; Edwin C. Butler and Birney Imes will be referred to collectively as “Speetjens.”

      . Appellees Malaco, Inc.; Thomas J. Couch, Sr.; Stewart M. Madison; Gerald B. Stephenson; Northside Partners; Couch and Madison Partnership; Couch, Madison and Grubman Partnership; Grubman Partnership; W. Bur-dette Russ; Tann Brown & Russ Co., Ltd.; Robert A. Malouf; Robert A. Malouf Law Firm; Allen J. Grubman; Malaco Inc. Profit Sharing Plan and Trust; Select-O-Hits, Inc. will be referred to collectively as "Malaco” throughout this opinion.

      . Delaware’s demand statute is materially different than Mississippi’s. It expressly states that written demand is required unless rea

        sons are given explaining why this effort was not undertaken. See Del. St. Ch. Ct. R. 23.1 (amended by court order effective February 1, 2006). The statute contained the same exception before the court-ordered amendment.


source: Caselaw Access Project

author: DICKINSON, Justice, for the Court.

license: Public Domain

text:
    Tommy Christopher BYNUM a/k/a Tommy Bynum a/k/a Tommy C. Bynum v. STATE of Mississippi.
    No. 2003-CT-02170-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jeffery A. Klingfuss, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Justice, for the Court.

¶ 1. Although Tommy Bynum’s conviction of robbery by a Lauderdale County Circuit Court jury was unanimously affirmed by the Court of Appeals, Bynum v. State, NO.2003-KA-02170-COA, 2005 WL 894796, at *1, 929 So.2d 324 (Miss.Ct.App. Apr. 19, 2005), four judges disagreed with the majority over the issue of whether Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), should be applied retroactively. While we find no merit to the issues raised by Bynum in his petition to this Court for writ of certiorari, we nevertheless grant his petition for review because we regard as important the question of whether the Court of Appeals should have applied Cratuford retroactively.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. We begin with a brief review of the facts as set forth by the Court of Appeals:

On October 11, 2002, Tommy Bynum and another individual drove to a grocery store parking lot in Meridian. Cindy Giles was in the parking lot walking toward her vehicle. Tommy Bynum approached her and attempted to take her purse. Bynum and Giles struggled, and Bynum pushed Giles to the ground. As Giles fell to the ground her purse strap broke and Bynum ran away with her purse. Giles chased Bynum across the parking lot, shouting as she ran. This commotion alerted two bystanders: Adalberto Medina and Perry Tubby. Medina was working in an adjacent store, and he saw Bynum running with Giles’s purse. Medina saw Bynum get into a car in the parking lot, and Medina wrote down the vehicle’s license number. Meanwhile, Tubby, who saw Bynum running with Giles’s purse, recognized that a crime was in progress and shouted at Bynum. Tubby testified that he watched Bynum run from Giles, then get into a vehicle with another man and flee the scene. Tubby followed behind the get-away car in his own vehicle, and collected Giles’s personal items which Bynum had thrown out of the car window. Tubby returned to the crime scene where he gave Giles the personal items he had recovered. He also gave a description of Bynum to the police.
Four days after the robbery, police responded to a call of suspicious activity at a local gas station. The get-away car used in the Giles robbery was at that location. The vehicle was impounded and Giles’s change purse was discovered in the car. The driver was arrested and he implicated a white man in the Giles robbery. Acting on information they developed during their investigation, police conducted a photo line-up for Giles, Medina, and Tubby. Each identified Bynum as the robber, however, none of the witnesses had gotten a good look at the driver of the get-away car. Bynum was indicted for robbery, and tried as a co-defendant with the vehicle driver.

Bynum, 2005 WL 894796, at *1, 929 So.2d at 327-28.

¶ 3. At trial, the driver was acquitted, and Bynum was found guilty. Bynum’s appeal to this Court was assigned to the Court of Appeals, which affirmed.

ANALYSIS

¶ 4. Bynum asserts we should consider his appeal in the light of Crawford, in which the United States Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine, regardless of whether the court deems such statements reliable. Crawford, 541 U.S. at 54, 124 S.Ct. at 1354. The Court of Appeals, noting Crawford was decided some seven months after Bynum’s conviction, opined that this Court “has not spoken on the retroactivity of Crawford. ...” Bynum, 2005 WL 894796, at *7, 929 So.2d at 333. We grant certiorari in this case to correct this statement regarding our prior application of Crawford.

¶ 5. In Clark v. State, 891 So.2d 136, 138-39 (Miss.2004), the defendant had no opportunity to cross-examine an alleged accomplice, who refused to testify at trial. Relying on Crawford, we held the trial court erred in admitting the accomplice’s testimonial statement. Id. at 140. However, after considering the overwhelming weight of admissible evidence, we found the Confrontation Clause violation to be harmless error. Id. at 142. While we did not specifically proclaim in Clark that Crawford is to be applied retroactively, we clearly relied on Crawford and applied its holding retroactively.

¶ 6. Accordingly, because Bynum lacked the opportunity to cross-examine his co-defendant, we find the trial court erred in allowing the police officer to testify concerning the co-defendant’s statement. However, upon careful review of the evidence, we find the erroneous admission of the statement was harmless error. Harmless errors are those “which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We find the impact of the erroneously admitted statement was so insignificant that it could not have contributed in any meaningful way to the guilty verdict. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246,113 L.Ed.2d 302 (1991) (the impact of the erroneously admitted evidence should be weighed to determine what errors are harmless). The overwhelming evidence of guilt includes the victim’s and two eyewitnesses’ identification of Bynum, testimony that Bynum threw the victim’s property out of the car window, and the presence of the victim’s change purse in the get-away car. Considering the evidence, we find beyond a reasonable doubt that the trial court’s error in admitting the co-defendant’s statement was harmless.

CONCLUSION

¶ 7. The Court of Appeals properly affirmed Bynum’s conviction. We grant cer-tiorari in order to clarify — and we now specifically hold — that Cratvford must be applied retroactively.

¶ 8. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. CONVICTION OF ROBBERY AND SENTENCE OF TWELVE (12) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, PAYMENT OF A FINE OF $5,000, PAYMENT OF RESTITUTION IN THE AMOUNT OF $390, AND OTHER FEES AND COSTS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.


author: CARLSON, Justice, for the Court.

text:
    Iris M. WILNER v. M. Neil WHITE, M.D., and Gulf Coast OB/Gyn, P.A.
    No. 2003-CT-01733-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.

      Jack C. Pickett, Henri M. Saunders, attorneys for Appellant.
    John A. Banahan, Pascagoula, Matthew Floyd Jones, Melinda Owen Johnson, Pas-cagoula, attorneys for Appellees.
   ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. This case is before us on writ of certiorari from a judgment of the Court of Appeals. The Appellees/Petitioners, M. Neil White, M.D., and Gulf Coast OB/ GYN, P. A., were added as parties to this action in the Circuit Court of Jackson County by an amended complaint; however, the trial court granted the motion for summary judgment filed by the doctor and his clinic, finding the applicable statute of limitations had expired by the time the amended complaint was filed. On appeal, the Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case to the trial court for further proceedings. Finding here that the trial court properly granted summary judgment, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Jackson County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT AND THE COURT OF APPEALS

¶ 2. On January 27, 1997, Iris Wilner underwent diagnostic laparoscopy, performed by Dr. Neil White at Singing River Hospital. She was later diagnosed with compression neuropathy after experiencing weeks of pain, weakness, and numbness in her left leg. On February 12, 1998, Wilner filed suit naming Singing River Hospital, a nurse, and John Does 1-4 as the defendants. Exactly two years after the laparoscopy, and nearly one year after the then-named defendants filed responsive pleadings, Wilner, without leave of court, filed an amended complaint on January 27, 1999 naming four additional defen-

dants, including the two parties involved here, Dr. White and Gulf Coast OB/GYN, P.A. Wilner claims to have realized only during discovery that she had a cause of action against these two parties. Dr. White worked with Gulf Coast OB/GYN, P.A. (Dr. White and Gulf Coast OB/GYN, P.A. will be hereinafter referred to collectively as ‘White”). Wilner had deposed Dr. White on August 12, 1998. The same day she filed her amended complaint, Wil-ner also filed a motion for leave of court to amend the complaint. White later filed a motion to dismiss because no leave of court had been granted to amend the complaint before the two-year statute of limitations expired. The trial court denied Wilner’s motion for leave to amend, finding the motion to be a nullity, and dismissed the putative amended complaint, because there were never any proceedings to allow the amendment, nor was consent of the adverse party given. See Miss. R. Civ. P. 15(a). The trial court also found the amendment could not relate back to the original complaint. Wilner appealed the trial court’s dismissal of the amended complaint, and the Court of Appeals reversed the trial court’s dismissal of the amended complaint and remanded the case with instructions that the amendment be allowed and that the case proceed. Wilner v. White, 788 So.2d 822 (Miss.Ct.App.2001) (Wilner I). Following remand, White filed a motion for summary judgment based on the expiration of the applicable statute of limitations. The trial court granted White’s summary judgment motion, finding that, because the amended complaint did not relate back to the original complaint under Miss. R. Civ. P. Rule 15(c), the amended complaint was time-barred. See Miss.Code Ann. § 15-1-36. Wilner again appealed, and the Court of Appeals issued its second opinion on July 13, 2004, affirming the trial court’s grant of summary judgment. See Wilner v. White, 2004 WL 1558070 (Miss.Ct.App.2004) (not reported in the Southern Reporter) (Wilner II). Wilner filed a Motion for Rehearing, and on December 13, 2005, the Court of Appeals granted the motion for rehearing, withdrew its original opinion of July 13, 2004, and substituted an opinion which reversed the trial court’s grant of summary judgment, and remanded the case to the trial court for further proceedings consistent with that opinion. See Wilner v. White, 929 So.2d 343, 2005 WL 3378639 (Miss.Ct.App.2005) (Wilner III). White petitioned this Court for a writ of certiorari, which we granted to resolve an issue of conflicting law on when amended complaints can be treated as original complaints, and when amended complaints relate back to the original complaints.

DISCUSSION

¶3. “The Supreme Court’s review of the grant of certiorari shall be conducted on the record and briefs previously filed in the Court of Appeals and on any supplemental briefs filed.” M.R.A.P. 17(h). The standard of review in considering on appeal a trial court’s grant or denial of summary judgment is de novo. Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663 (Miss.2004); McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (Miss.2002); Lewallen v. Slawson, 822 So.2d 236, 237-38 (Miss.2002); Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). In considering this issue, we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Aetna, 669 So.2d at 70. The evidence must be viewed in the light most favorable to the party against

whom the motion has been made. Id. Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position. American Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990). If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor. Price v. Purdue Pharma Co., 920 So.2d 479, 483-84 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact issue. Id. However, our decisions which discuss this rule are clear that when a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial. Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). See also URCCC 4.03(2). “If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Miss. R. Civ. P. 56(e). If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Miller, 762 So.2d at 304.

WHETHER AN AMENDED COMPLAINT MAY BE TREATED AS AN ORIGINAL COMPLAINT, OR RELATE BACK TO THE ORIGINAL COMPLAINT, WHEN THE MOTION TO AMEND WAS FILED WITHIN THE STATUTORY TIME LIMITATION.

¶ 4. The Court of Appeals ruled in its first opinion that the motion to amend should have been granted, basing its decision in part on Miss. R. Civ. P. 15(a) which states that, when justice so requires, leave to amend shall be freely given, and in part on the fact that the motion to amend was filed within the statutory time allowed. Wilner I, 788 So.2d at 824. Subsequently, this Court decided Curry v. Turner, 832 So.2d 508 (Miss.2002). In Curry, we held that the filing of a motion to amend does not toll the statute of limitations until the trial court rules on the motion. Id. at 514. The result of this holding is that, “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.” Id. at 511. However, we also examined whether the amended complaint in Curry related back to the original complaint under Miss. R. Civ. P. 15(c). This Court in Curry did not allow the amended complaint for two reasons — the motion to amend did not toll the statute of limitations and the amended complaint did not relate back to the original complaint. Id. at 513-14. The Court of Appeals acknowledged Curry in Wilner III, and framed the issue this way: “[t]he question now is whether, in the light of Curry, the trial court erred in granting summary judgment. It seems rather clear that unless (1) the amendment relates back to the original filing, (2) Curry is distinguishable, or (3) the amended complaint can be treated, for purposes of the added parties, as an original complaint, Wilner cannot prevail.” 2005 WL 3378639 at *3, 929 So.2d at 347. The Court of Appeals held that option (3) provided Wilner relief, and treated the amended complaint as her original complaint. Id. at *6, 929 So.2d at 350.

¶ 5. The Court of Appeals relied on its prior decision in King v. American RV Centers, Inc., 862 So.2d 558 (Miss.Ct.App.2003) to prevent Wilner from losing her day in court, using the following reasoning:

If Wüner had named the four new parties in a separate, original complaint and moved to consolidate the two cases, we would not have an issue with the statute of limitations, nor would there be an issue regarding relating back. Should she be denied the opportunity to proceed even though she filed suit against the new parties before the statute of limitations ran and had a summons and a complaint (although designated as an amended complaint) served on the new parties within the period of time required by Mississippi Rules of Civil Procedure 4(h)? We think not.
In King v. American RV Centers, Inc., 862 So.2d 558 (Miss.Ct.App.2003), we held that the trial court erred in dismissing an amended complaint, which was filed prior to the expiration of the statute of limitations, although the plaintiff could not technically file an amended complaint because there was no original complaint to amend. Id. at 562 (¶¶ 20-21). We found that at the time the plaintiff filed the amended complaint he could have filed an original complaint; therefore, he should not lose his day in court because of the technicality, that to do so would exhort form over substance. Id. We find our reasoning in King helpful here. If Wilner had not renamed the original parties in her amended complaint, this case would be virtually indistinguishable from King. The fact, however, does not seem to be a compelling reason for holding any differently than we did in King. Therefore, for the reasons discussed, we reverse and remand the grant of summary judgment.

Wilner III, 2005 WL 3378639 at *6, 929 So.2d at 350. Respectfully, the Court of Appeals is mistaken in its assumption that Wilner could have properly named the new parties in a separate complaint. Had Wilner done this, she would have offended the long-standing principal of law in Mississippi prohibiting a party from splitting a cause of action into the subject of two different actions, reaching back to this Court’s decision in Kimball v. Louisville and Nat’l R.R. Co., 94 Miss. 396, 48 So. 230 (1909). See also Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 234 (Miss.2005); Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992). Suggesting that a party should take this course of action in the future is encouraging that party to ignore the law. Further, King is not applicable here; rather, we find King to be not only easily distinguishable from today’s case, but also an inaccurate statement of the law. First, the issue presented for review before the Court of Appeals in King was not relation back, but the 120-day time period for service after the filing of an original complaint. Second, the pronouncement in King encourages exactly what we have already stated is not allowable under Mississippi law — the splitting of a cause of action. To the extent that King could be interpreted to allow a party to split causes of action, King is expressly overruled. This Court reiterated in Alexander the rule against splitting a cause of action and the reasons for it, quoting from the Restatement of Judgments:

§ 62 SPLITTING CAUSE OF ACTION-JUDGMENT FOR PLAINTIFF OR DEFENDANT.
“Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except
“(c) where the defendant consented to the splitting of the plaintiffs cause of action.
“Comment:
a. Rationale: The rule stated in this Section is based on the idea that where a person has a single cause of action, in the interests of convenience and economy to the public and to the defendant he should be entitled to but one right of action and hence should be required to unite in one proceeding all matters which are part of it.

Alexander, 621 So.2d at 910. The Court of Appeals in King treated the original complaint as “dead” because no service of process occurred within the 120-day time period and because the trial court there had ordered its dismissal. King, 862 So.2d at 563. With all deference to the Court of Appeals, this is flawed reasoning because a judgment of dismissal had in fact been rendered, precluding the plaintiff from maintaining an action upon any part of the original cause of action. Similarly, the trial court also ordered the case sub judice dismissed, but that ruling was reversed by the Court of Appeals in Wilner I. The issue today concerns the grant of a motion for summary judgment, not a motion to dismiss. Second, as noted above, the amended complaint in King was filed before the expiration of the statute of limitations. Here, that is not the case. In today’s case, only the motion to amend the complaint was considered filed before the expiration of the statute of limitations. Curry makes it clear that the amended complaint could not have been anything more than an attachment to the motion to amend until the court had ruled on that motion. When the trial court in the case sub judice denied the motion to amend, the practical effect was no amended complaint had ever been filed. However, the Court of Appeals, in Wilner I, reversed the trial court’s denial of the motion to amend and grant of dismissal and remanded the case with instructions to allow the amendment. However, without question, Wilner was required to seek leave of court to file an amended complaint because her original complaint was not “dead,” but instead still very much a viable pleading. Although we have already discussed King from the standpoint of splitting causes of action, we also note that the Court of Appeals in King held that the plaintiff was not required to seek leave of court because the original complaint was found to be “dead” and thus the amended complaint was treated as a new original complaint. After an original complaint has been filed, an amended complaint, except as otherwise provided by rule, may be filed only upon seeking and receiving leave of the court to do so. Thus, we respectfully disagree with the reasoning applied by the Court of Appeals in that we do not agree that the amended complaint can be treated, for purposes of the added parties, as an original complaint.

¶ 6. The next question is whether the amended complaint relates back to the date of the original, meaning that the case would be treated as if White was named as a defendant before the expiration of the statute of limitations. An amended pleading which changes the party against whom a claim is asserted relates back to the date of the original pleading under section (c) when certain requirements are met. Miss. R. Civ. P. 15(e). Here the pleading being amended is the complaint, and the party against whom the claim is asserted is White, the newly-named defendant.

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 the party will not be prejudiced in maintaining the party’s 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 the party. 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.

Miss. R. Civ. P. 15(c). Rule 15 applies here as it clearly contemplates a “new party to be added by the amendment,” as one can easily see in the comment to the rule. Id. (comment). The rule makes one exception for pleadings amended under Miss. R. Civ. P. 9(h), which is the provision Wilner appears to be utilizing in this case to amend her complaint. Those excepted pleadings are pleadings by a party who “is ignorant of the name of an opposing party and so alleges in his pleading.” Miss. R. Civ. P. 9(h). Rule 9(h) states that in those cases, “the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.” Id. Rule 9(h) pleadings are not considered amendments changing a party against whom a claim is asserted and are allowed under Rule 15(c) to relate back to the date of the original pleading. Miss. R. Civ. P. 15(c). In order for Rule 9(h) to apply, there must be a substitution of a true party name for a fictitious one. However, this is not the case here. Wilner did name four “John Doe” defendants in his original complaint, but did not substitute White’s name for a “John Doe,” but simply added White’s name. The four “John Does” remained as named defendants in the amended complaint. This is an improper substitution of parties under Rule 9(h) according to our decision in Doe v. Miss. Blood Servs., Inc., 704 So.2d 1016, 1018 (Miss.1997). In Doe, the plaintiff merely substituted one named party for another named party, and left all John Doe defendants remaining in the complaint. “The purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights for seven years, make only one telephone call prior to the running of the statute, and then enjoy the benefits of the rule.” Doe, 704 So.2d at 1019.

¶ 7. Additionally, Rule 9(h) exists for the benefit of a party who “is ignorant of the name of an opposing party and so alleges in his pleading.” Miss. R. Civ. P. 9(h). In Doe, we relied on Womble v. Singing River Hosp., 618 So.2d 1252, 1266-68 (Miss.1993) to employ a reasonable diligence test to determine the proper' substitution of unknown parties. 704 So.2d at 1018. Reasonable diligence is a standard only for determining the efforts made to discover the true identity of a named fictitious party under Rule 9(h). Nguyen v. Mississippi Valley Gas Co., 859 So.2d 971, 978-79 (Miss.2002). “The relation back privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to actually exercise a reasonably diligent inquiry into the identity of the fictitious party.” Doe, 704 So.2d at 1019. We concluded in Doe that the appellants in that case “were not ignorant of the identities of appellees in the sense contemplated by Rule 9(h). Consequently, no relief is provided appellants from the running of the statutory period by Rule 9(h).” Id. Likewise here, Wilner can seek no shelter from Rule 9(h), and her amended complaint cannot relate back under Rule 15(c)(2).

¶ 8. Thus, the only way for the claims in the amended complaint against White to relate back to the original complaint would be if Wilner can meet the other requirements of Rule 15(c), the Rule 9(h) exception notwithstanding. When an amended complaint changes or adds a party, those requirements are: (1) the claim in the amended complaint must arise out of the same conduct, transaction, or occurrence as that set forth in the original complaint; (2) the newly-named defendant must have received notice of the action within the period provided by Miss. R. Civ. P. 4(h) such that the party will not be prejudiced; and, (3) the newly-named defendant must have or should have known that an action would be brought against him but for a mistake existing as to the parties’ identities. Miss. R. Civ. P. 15(c). The first “same conduct, transaction, or occurrence” requirement is clearly met in this case, as both complaints refer to the January 27, 1997, laparoscopy. This is not disputed. The second requirement is also met here. The question under Miss. R. Civ. P. 15(c)(1), is whether White, within 120 days after the filing of the complaint, had received sufficient notice so that he would not be prejudiced in maintaining his defense on the merits. There is no doubt that White knew enough within 120 days of the original complaint that he would have suffered no prejudice to be named a party to the action. White’s name was mentioned in the body of the original complaint, and White was deposed months before trial. White, was well aware of the ongoing lawsuit and his involvement in the actions leading up to it. We must therefore determine if the other requirement is met; that is, whether, but for a mistake on Wilner’s part, White knew, or should have known, that an action would be brought against him. Curry, 832 So.2d at 513; Brown v. Winn-Dixie Montgomery, 669 So.2d 92, 94 (Miss.1996). If the answer is in the affirmative, the amended complaint will relate back to the date of the original complaint, and the suit will not be time-barred by the statute of limitations.

¶ 9. However, Wilner fails to meet the test in Miss. R. Civ. P. 15(c)(2) This part of the rule essentially asks whether, because of the existence of a mistake as to the parties’ identities on the part of the mov-ant or complainant, the newly-named defendant did not know that an action would be brought against him within the prescribed time. Curry, 832 So.2d at 513. The purpose of this rule is to allow some leeway to a party who made a mistake, so long as the party does what is required within the time period under the rule. The United States Supreme Court, in looking at the federal counterpart to this rule, Fed.R.Civ.P. 15(c)(3)(B), noted that this “subsection applies only in cases involving ‘a mistake concerning the identity of the proper party.’ ” Nelson v. Adams USA, Inc., 529 U.S. 460, 467, 120 S.Ct. 1579, 146 L.Ed.2d 530, n. 1 (2000) (quoting Fed. R.Civ.P. 15(c)(3)(B)). Here, there can be no attempt to assert that a mistake was made concerning White’s identity. Also, Wilner unquestionably failed to make a reasonably diligent effort to add White’s name to the complaint sooner. White’s name actually appears in the body of the original complaint itself. Wilner admits that months before she filed her motion to amend, she was well aware of the possibility of a claim she might have against White. Why she did not attempt to add White sooner is simply perplexing. Curry addressed “a motion to amend filed before the statute of limitations had run but not ruled upon until after the limitations period had elapsed.” 832 So.2d at 512-13. On this issue, we concluded that “[s]ince the amended complaint was filed after the statute of limitations ran against [Curry], the trial court was correct in dismissing the suit against him.” Id. at 514. These particular facts of Curry are identical to the facts of today’s case. For these reasons, we find the amended complaint could not be treated as an original complaint; the amended complaint did not relate back to the original complaint; and, although the motion to amend was filed prior to the expiration of the applicable statute of limitations, there was no ruling on the motion to amend prior to the expiration of the statute of limitations, and thus, the trial court properly dismissed the putative amended complaint.

CONCLUSION

¶ 10. Miss. R. Civ. P. 15(a) allows a party to amend a pleading subject to certain timeliness requirements, or otherwise, “by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). Here, neither leave of the court nor written consent of the adverse party was obtained. Further, Wilner’s argument that her amended complaint should relate back to the date of the original complaint under Miss. R. Civ. P. 15(c) fails. There was no mistake as to White’s identity, and Wilner did not exercise reasonable diligence in adding the newly named defendants. For all the reasons herein discussed, the judgment of the Court of Appeals is reversed, and the final judgment of the Circuit Court of Jackson County is reinstated and affirmed.

¶ 11. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED; THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . This summary does not represent the complete procedural history of this case, which will be presented later in this opinion.

      . The other two parties named in the amended complaint are not parties to this appeal.

      . Of course, Miss. R. Civ. P. 15(a) provides that an amended pleading may be filed, without leave of the court, at any time prior to the serving of a responsive pleading, or if the pleading "is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar."

      . Rule 9(h) pertains to fictitious parties.

      . The federal rule requires that "the party to be brought in by the amendment ... 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.” Fed.R.Civ.P. 15(c)(3)(B) (2005).