author: WHIPPLE, C.J.

text:
    Afrah QASEM and Asary Shotah v. ACADIAN APARTMENTS, INC.
    NUMBER 2017 CA 1591
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 01, 2018
    Allen V. Davis, Kenneth J. Dupaty, Gonzales, LA, Counsel for Plaintiffs/Appellants, Afrah Qasem and Asary Shotah
    Stephen N. Elliott, Howard B. Kaplan, Metairie, LA, Counsel for Defendant/Appellee, Acadian Apartments, Inc.
    BEFORE: WHIPPLE, C.J., MCDONALD, AND CHUTZ, JJ.
   WHIPPLE, C.J.

This matter is before us on appeal by plaintiffs/appellants, Afrah Qasem and Asary Shotah, from a judgment of the trial court granting summary judgment in favor of defendant/appellee, Acadian Apartments, Inc. For the reasons that follow, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of October 29, 2010, plaintiffs, Afrah Qasem and her daughter, Shotah, attempted to escape a fire in their apartment by jumping from a second floor apartment window. Plaintiffs subsequently filed suit against Acadian Apartments, Inc. (hereinafter "Acadian") seeking damages for injuries they sustained. Plaintiffs alleged that their damages were caused by Acadian's negligence in failing to maintain adequate policy and procedure, properly working smoke/fire alarms, and properly working fire extinguishers, and in failing to provide adequate and properly noted emergency exits.

Acadian responded by filing a reconventional demand against plaintiffs, requesting a trial by jury and seeking damages in excess of $50,000.00 for the "extensive damage" to their apartment and to adjoining apartments purportedly caused by plaintiffs. Therein, Acadian alleged that plaintiffs were negligent in failing to be attentive and maintain safe conditions in the apartment, in causing the fire by their careless use of a candle or other inflammatory device, and in starting a fire and failing to extinguish it.

On February 3, 2017, Acadian filed a motion for summary judgment seeking dismissal of plaintiffs' claims, contending that plaintiffs did not allege, nor can they prove, that Acadian caused the fire, and that plaintiffs have set forth no evidence to establish their entitlement to recovery of damages under any other theory. Acadian's motion for summary judgment was set for hearing on June 9, 2017. Following the hearing on June 26, 2017, the trial court signed a judgment granting Acadian's motion for summary judgment and dismissing plaintiffs' claims against it with prejudice.

Plaintiffs now appeal, contending that the trial court erred in granting summary judgment where it disregarded plaintiffs' deposition testimony and supporting affidavits and made credibility evaluations.

DISCUSSION

At the outset, we note that our review of the judgment indicates that the summary judgment granted in favor of the defendants dismisses all of plaintiffs' personal injury claims against Acadian with prejudice. Although the trial court retained jurisdiction over the Acadian's reconventional demand (i.e., Acadian's property damage claims against plaintiffs), which remain unresolved, because the judgment before us on appeal resolves all of the issues in the principal demand, we conclude that it is a final judgment subject to immediate appeal pursuant to LSA-C.C.P. art. 1915(A)(3). See Jackson National Life Insurance Company v. Kennedy-Fagan, 2003-0054 (La. App. 1st Cir. 2/6/04), 873 So.2d 44, 47-48, writ denied, 2004-0600 (La. 4/23/04), 870 So.2d 307, citing Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 718-719 (The granting of a summary judgment resolving all issues in the principal demand was a final judgment pursuant to LSA-C.C.P. art. 1915(A)(3)that did not require a certification pursuant to LSA-C.C.P. art. 1915(B) when other issues in the reconventional demand remained unresolved.); Johnson v. Laney, 2007-0237 (La. App. 4th Cir. 7/25/07), 964 So.2d 418, 420, n.4 (The granting of summary judgment resolving all of the issues presented in the principal demand, the judgment was a final appealable judgment pursuant to LSA-C.C.P. art. 1915(A)(3) without the need for certification even though the district court retained jurisdiction over the claims asserted in the reconventional demand.) Accordingly, we find this appeal is properly before us, and the trial court was not required to certify the judgment as a final judgment pursuant to LSA-C.C.P. art. 1915(B).

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jones v. Anderson, 2016-1361 (La. App. 1st Cir. 6/29/17), 224 So.3d 413, 417. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1st Cir. 12/21/17), 240 So.3d 932, ----. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 240 So.3d at ----. Because it is the applicable substantive law that determines materiality, whether a particular issue in dispute is material can be seen only in light of the substantive law applicable to the case. Jones v. Anderson, 224 So.3d at 417.

To determine whether liability exists under the facts of a particular case, we apply a duty-risk analysis, as adopted by Louisiana courts. Brewer v. J.B. Hunt Transport, Inc., 2009-1408, 2009-1428 (La. 3/16/10), 35 So.3d 230, 240. In order for liability to attach under a duty-risk analysis, a plaintiff must prove: (1) duty; (2) breach; (3) causation; and (4) damages. Roberts v. Rudzis, 2013-0538 (La. App. 1st Cir. 5/28/14), 146 So.3d 602, 608-609, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Seals v. Morris, 410 So.2d 715, 718 (La. 1981) (on rehearing). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Mathieu v. Imperial Toy Corporation, 94-0952 (La. 11/30/94), 646 So.2d 318, 326.

Plaintiffs contend that the trial court erred in granting summary judgment herein, where Acadian provided no evidence to prove that the smoke/fire alarms were regularly maintained and where the trial court improperly weighed the evidence and determined the credibility of witnesses.

Acadian contends that summary judgment was properly granted where plaintiffs do not allege, and the evidence fails to establish, that Acadian negligently caused the fire. Acadian further contends that although plaintiffs allege that their damages were caused by Acadian's failure to maintain adequate policies and procedure and properly working smoke/fire alarms and fire extinguishers, plaintiffs offered no evidence whatsoever to support these allegations. In support of its motion for summary judgment, Acadian set forth deposition excerpts of the plaintiffs, Michael Millet of the Houma Fire Department, Majdi Obadi, Mai Ngyuen, and Trung Ngyuen. Acadian also submitted affidavits of Richard W. Jones and James Mazerat, and a supplemental affidavit of Richard W. Jones, photographs of the smoke alarm depicting the absence of a battery in the alarm and the presence of a battery in a drawer, and an apartment inspection checklist dated June 22, 2010.

Qasem testified that she and Shotah arrived home around midnight on the night of the fire and were exhausted after having travelled several hours that day. They had been previously advised by a friend, Majdi Obadi, that the electricity to their apartment had been disconnected, so a relative, Hassan Obadi, escorted them to their apartment with a candle that he left in their kitchen after seeing them in. Qasem stated that Hassan did not have a holder for the candle and that they did not concentrate on moving the candle because they were "very, very tired [and] exhausted." Qasem stated that after arriving at the apartment, she took a second candle and lit it from the candle in the kitchen and brought it into the bathroom so she could wash up and that Shotah went straight to bed. Qasem stated that she left the candle in the bathroom in case Shotah woke up and needed to see her way to the bathroom. Qasem stated that she extinguished the first candle after lighting the second candle. Shotah testified that she went directly to her room and fell asleep and had no memory of her mother bringing a candle in the bathroom.

Majdi testified that the lease for plaintiffs' apartment, as well as all of the utilities for the apartment, including the electrical bills, were in his name. He acknowledged that at the time of the fire, the electricity had been disconnected at the apartment because he had failed to pay the electrical bill owed to Entergy.

Mai Ngyuen and her husband, Trung Ngyuen, owned the apartment building. Mai testified that during the last two weeks of each month, starting around the fifteenth, she inspected each apartment to check the AC filter and smoke/fire alarm to see if it worked or if the battery needed replacing. Mai testified that although she did not keep a written log of her monthly inspections, she specifically recalled checking plaintiffs' apartment two months before the fire and seeing that the battery had been taken out of the smoke/fire alarm and was placed on the refrigerator. Mai stated that she put the battery back in the alarm and told them not to take it out again. When she performed the inspection two weeks before the fire, the battery was in the smoke/fire alarm.

Mai testified that when a new tenant moves in, they routinely check the smoke/fire alarm to see if it is working or if the battery needs to be replaced. Acadian further presented an apartment checklist from an inspection performed by Mai in June of 2010, before plaintiffs moved in, wherein Mai specifically noted, "Smoke alarm with battery work ok." Mai further stated that they routinely inspect the fire extinguishers in each apartment and that two months before the fire herein, she took the fire extinguishers to the fire station to be refilled.

Trung Ngyuen stated that after the fire, he accompanied the insurance adjuster on an inspection of the apartment. In doing so, he found a candle stand and lighter on top of the refrigerator. During the inspection, they noticed that the smoke/fire alarm was still on the wall, but that it had melted and thus, they were not able to open it. A few days later, Trung returned and again tried to open the smoke/fire alarm. He ultimately broke the alarm open and saw that it did not have a battery in it. Trung then looked around the kitchen and found the battery in the corner of a kitchen drawer. He took photographs of the smoke/fire alarm without a battery and the photograph of the battery in the drawer and submitted them to the insurance adjuster.

Acadian presented the deposition testimony of Michael Millet, a fire inspector with the Houma Fire Department. Millet testified that he was called out to the scene to investigate the fire and that it appeared that the fire started on or around the sofa. Although he could not state for certain that a candle caused the fire, he stated that he was "99 percent sure" that it was not an electrical fire.

Acadian also submitted the affidavit and report of James L. Mazerat, CFI, a certified professional forensic fire investigator, who was retained by Montpelier U.S. Insurance Company to investigate the origin and cause of the fire. After personally inspecting the fire scene, Mazerat attested that Acadian complied with all applicable building codes for fire alarms, fire extinguishers, and exits as well as with all safety requirements.

Acadian also presented the affidavit and report of Richard W. Jones, Jr., CFI, CFEI, CVFI, who was also retained by Montpelier U.S. Insurance Company to investigate the origin and cause of the fire. After completing his investigation, Jones opined that the fire originated within the sofa and determined that the cause of the fire was open flame contact to combustible material most likely resulting from an unattended candle utilized for light making contact with the sofa.

In opposition to the motion for summary judgment, plaintiffs offered their affidavits and deposition excerpts, along with deposition excerpts of Mai Ngyuen and Trung Ngyuen. In similar affidavits, plaintiffs attested that a candle was used on the night of the fire only in the bathroom and bedroom and was not used near the sofa, which is purportedly the area of origin of the fire; that at no time did they hear an audible alarm or warning from any fire/smoke detection system; and that at no time did they ever remove, tamper with, or damage the fire/smoke detection system or batteries that accompanied such system inside the apartment.

To the extent that plaintiffs argue herein that the granting of summary judgment was improper because the Ngyuens provided "no evidence" to prove that the smoke/fire alarms were regularly maintained, we disagree. Although they admittedly did not keep a written log of monthly inspections, both Mai and Trung Ngyuen stated in their deposition testimony that the smoke/fire alarms were regularly checked. Louisiana Code of Civil Procedure article 966(A)(4) specifically authorizes consideration of depositions in support of, or in opposition to, motions for summary judgment. See Gatlin v. Kleinheitz, 2009-0828 (La. App. 1st Cir. 12/23/09), 34 So.3d 872, 876, writ denied, 2010-0084 (La. 2/26/10), 28 So.3d 280 ; Service One Cable T.V., Inc. v. Scottsdale Insurance Company, 2011-1470, p. 3 (La. App. 1st Cir. 2/10/12) (unpublished). Accordingly, we find the deposition testimony of Mai and Trung Ngyuen to be competent evidence on summary judgment.

Moreover, Mai testified that before a tenant moves in, she and Trung conduct an inspection of the apartment, wherein the smoke/fire alarm is specifically checked to ensure that it is working properly. Moreover, the written checklist from an inspection of plaintiffs' apartment performed by Mai in June of 2010, noting that "Smoke alarm with battery work ok," was offered by Acadian in support of its motion for summary judgment. Thus, in light of their deposition testimony and the inspection checklist, the record before us does not support plaintiffs' contention that the Ngyuens provided "no evidence" to prove that the smoke/fire alarms were regularly maintained.

Plaintiffs next argue that the trial court erred in rendering summary judgment by weighing "conflicting" evidence, where the Ngyuens testified that there was no battery in the smoke/fire alarm while plaintiffs testified that the smoke/fire alarm made no sound on the night of the fire and that they did not remove the battery. Plaintiffs contend that in doing so, the trial court "made an evaluation of credibility," which they contend is evidenced in the court's finding, as follows:

[Liability] could only be imposed because of any breach of duty by Acadian Apartments to maintain a smoke alarm. All of the evidence that I have indicates that they did make an effort to maintain a smoke alarm. I might add I think, and the uncontradicted evidence is that they did it, I think they were doing a pretty good job trying to keep that smoke alarm operating. For some reason the battery was out, nobody can tell me why. Nobody has offered any evidence as to why. And it is the plaintiffs['] burden to show that it was the defendant who breached the duty. The evidence I have is to the contrary, that they were doing everything they could not to breach the duty, but that somehow the battery was removed from the smoke alarm. And I have no evidence to suggest that it was removed by the defendant.

After a thorough de novo review of the record herein, we disagree with plaintiffs' contention that the trial court's ruling was improperly based on the resolution of conflicts in the testimony and that, in its finding set forth above, the trial court made credibility determinations. Rather, on de novo review, we find that the Ngyuens' testimony that the smoke/fire alarm did not contain a battery is perfectly consistent with the plaintiffs' testimony that they did not hear an alarm sound. Moreover, we find no merit to plaintiffs'

argument that summary judgment was improper in that the Ngyuens' deposition testimony "suggested" that plaintiffs must have removed the battery from the smoke/fire alarm.

Simply stated, once Acadian set forth evidence to establish that the smoke/fire alarms were regularly inspected once a month, that the smoke/fire alarm had a working battery in it a couple of weeks before the fire, and that the smoke/fire alarm did not contain a battery at the time of the fire, the burden shifted to plaintiffs to produce factual support sufficient to establish that Acadian removed the battery or otherwise breached a duty owed to plaintiffs (i.e., that defendant's conduct was a cause-in-fact of plaintiffs' injuries). See LSA-C.C.P. art. 966(D)(1) ; Robert v. Rudzis, 146 So.3d at 608-609. In sum, although plaintiffs attested that they did not remove the battery from the smoke/fire alarm, they failed to produce any evidence to establish that someone acting on behalf of Acadian did remove the battery. Without this evidence, plaintiffs have failed to show that they will be able to carry their evidentiary burden of proof at trial.

Accordingly, we find no error in the trial court's grant of summary judgment dismissing plaintiffs' claims.

CONCLUSION

For the above and foregoing reasons, the June 26, 2017 judgment of the trial court, granting Acadian Apartment, Inc.'s motion for summary judgment and dismissing plaintiffs' claims with prejudice, is hereby affirmed. Costs of this appeal are assessed to the plaintiffs/appellants, Afrah Qasem and Asary Shotah.

AFFIRMED.

      Plaintiffs later amended their petition in response to a dilatory exception of vagueness filed by Acadian.

      The motion indicates a "fax filing" date of January 31, 2017.

      Following its grant of Acadian's motion for summary judgment and dismissal of plaintiffs' claims, the trial court specifically acknowledged that defendant's reconventional demand remained pending.

      A trial court may render a partial final judgment that is immediately appealable, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E). LSA-C.C.P. art. 1915(A)(3).

      Cf. LWCC v. Sims, 2014-1378 (La. App. 1st Cir. 4/24/15), 2015 WL 1882608 (unpublished) (where the trial court's grant of summary judgment as to the principal demand granting LWCC an award for unpaid premiums and late fees implicitly denied the defendants' claims in their reconventional demand that LWCC "overcharged" them for premiums, yet the judgment was silent as to the reconventional demand, a certification that the judgment was final under LSA-C.C.P. art. 1915(B) was required where the principal demand and the reconventional demand both concerned the "issue" of premium payments, and the judgment seemingly disposed of that issue, yet failed to dismiss or otherwise dispose of the reconventional demand).

      More specifically stated, a plaintiff must establish that: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element). Roberts v. Rudzis, 2013-0538 (La. App. 1st Cir. 5/28/14), 146 So.3d 602, 608-609, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797.

      Louisiana Code of Civil Procedure article 966(A)(4) provides that:
      The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Robert HAMMONS, Jr. v. C. Wade NAVARRE, II, individually and d/b/a Navarre Fabrication, Inc., Navarre Fabrication, Inc., Velcon Filters, LLC, Knappco Corporation and Wilden Pump and Engineering, LLC
    NO. 2015-CT-00243-SCT
    Supreme Court of Mississippi.
    June 7, 2018 Rehearing Denied September 13, 2018
    ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR., ADRIENNE P. PARKER, JACKSON, BRADLEY S. CLANTON
    ATTORNEYS FOR APPELLEES: TIMOTHY J. STERLING, RIDGELAND, CHARLES G. COPELAND, JAMES R. MOORE, JR., MICHAEL C. GATLING, MADISON, RICHARD L. KIMMEL, MARK A. BIGGERS, GREENWOOD, W. SCOTT WELCH, III, CLAY GUNN, JACKSON
    EN BANC.
    ON WRIT OF CERTIORARI
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. The dispositive issue before the Court is whether Robert Hammons Jr. properly named fictitious parties in his original complaint so his amended complaint related back to the filing of the original complaint to avoid the statute-of-limitations bar. The Circuit Court of Leflore County ruled that Hammons had failed to comply with the fictitious-party rules and granted summary judgment for the defendants. The Court of Appeals, in an evenly divided decision, affirmed the circuit court's judgment. Hammons v. Navarre , --- So.3d ----, ----, 2017 WL 1392835, at *10 (Miss. Ct. App. Apr. 18, 2017).

¶ 2. Hammons's amended complaint-fifteen pages longer than his original complaint-added new parties and new claims against those parties. As the amendment was not a substitution under Mississippi Rule of Civil Procedure 9(h), it does not relate back to the time of filing of the original complaint under Mississippi Rule of Civil Procedure 15(c)(2). Further, the amended complaint was filed outside the statute of limitations, and Hammons's claim is time-barred. Thus, we affirm the judgment of the circuit court and the decision of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3. On October 25, 2009, Hammons was piloting a helicopter spraying herbicides on timber fields near Eupora when the helicopter crashed. Hammons was employed by Provine Helicopter, which owned the subject helicopter. Hammons was severely injured and now is paralyzed from the waist down.

¶ 4. On May 26, 2011, the National Transportation Safety Board ("NTSB") adopted and published its final report on the accident. The NTSB found that the probable cause of the crash was a loss of engine power due to fuel contamination. The NTSB report stated:

A postaccident examination of the helicopter's fuel system revealed a brown contaminate, of a density greater than jet fuel.... Examination of the dual use truck that was used to service the helicopter with fuel and herbicide revealed that the fuel filter between the Jet-A fuel tank and the fuel delivery hose was also contaminated. A common trough that ran along the top of the fuel truck provided an area where any over flow of water used to fill the truck's herbicide tank could be introduced into the truck's Jet-A fuel tank through gaps in the fuel tank's cap seal.

The "dual use truck" was owned and operated by Hammons's employer, Provine Helicopter. The NTSB report went on to state:

A 500-gallon fuel tank was located a[t] the foreword end of the truck, while a tank for mixing water and spray chemical was located at the aft end. A common trough ran along the top portion of both tanks, which would retain any over-fill of water or fuel, and was drained through two small holes at the forward end. Examination of the cap for the fuel tank revealed that the o-ring seal and the fuel vent were deteriorated, and that the seals were not continuous. The fuel tank was configured in a way that fuel was taken directly from the lowest point in the tank, and pumped through a filter to the fuel filler hose. No standpipe was present at the bottom of the tank that would have prevented any collected water from entering the fuel filter, and no pressure gauges or sensors were installed up or downstream of the filter.
The truck-based fuel tank was checked for the presence of water using a water finding paste applied to a dip stick. A small amount of water was detected. The fuel filter between the tank and the delivery hose was removed and examined. The filter element appeared "bulged" and water was present in the filter. The brown contaminant was present throughout the paper folds of the fuel filter, and was collected along its interior.

¶ 5. On December 27, 2011, Hammons filed an eleven-page complaint in the circuit court. The only named defendant was Scott Petroleum, which supplied fuel to Provine Helicopter. Hammons alleged that the fuel supplied by Scott Petroleum "was defective and unreasonably dangerous." Hammons further alleged that there was no "substantial change in [the fuel's] condition from the time the fuel left the places of manufacture and/or processing until the time of the accident." Rather, Hammons alleged, the fuel was already in a "defective condition" when it was "sold" and "left the control of Scott Petroleum." The complaint did not allege or articulate any wrongful conduct by any other entity, known or unknown.

¶ 6. Hammons's complaint purported to name "Defendants A-P." As to these defendants, the complaint stated, in its entirety:

Defendants, A-P, are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. Plaintiff will amend his Complaint and include the true names and addresses of the Defendants A-P once their identities are learned and once their liabilities are ascertained.

¶ 7. Scott Petroleum was served on March 8, 2012. On April 6, 2012, Scott Petroleum's counsel provided Hammons's counsel with a copy of the NTSB report. The cover letter from Scott Petroleum's counsel stated in part:

Based on this report, it appears that if fuel contamination existed, that fuel contamination originated in the field service truck owned by Provine Helicopter which refueled the subject helicopter several times the day of the incident. Consequently, pursuant to this correspondence, we hereby request that you dismiss this matter with prejudice as to [Scott Petroleum].
Obviously, Scott Petroleum can have no liability for the failure of Provine Helicopter to maintain its service truck.

Scott Petroleum subsequently answered the complaint and filed a motion for summary judgment that attached the NTSB report as an exhibit.

¶ 8. On April 8, 2013, Hammons filed a motion for leave to file an amended complaint. On April 17, 2013, the court entered an agreed order granting Hammons's motion. On April 30, 2013, Hammons filed a twenty-six-page amended complaint that identified Defendants A through F from the original complaint as follows: Metal Craft Inc. ("Metal Craft"); Wade C. Navarre and Navarre Fabrication (collectively, "Navarre"); Velcon Filters LLC ("Velcon"); Knappco Corporation ("Knappco"); and "Wilden." The amended complaint alleged that Metal Craft and Navarre manufactured the fuel truck and fuel compartments used to fuel the helicopter; the amended complaint further alleged, for the first time, that the truck and compartments were defective. Also, the amended complaint alleged that Velcon Filters manufactured a fuel filter on the fuel truck; the amended complaint further alleged, for the first time, that the filter was defective. The amended complaint alleged that Knappco manufactured the lid on the fuel truck's fuel tank; the amended complaint further alleged, for the first time, that the lid was defective. Finally, the amended complaint alleged that Wilden manufactured the fuel truck's pump; the amended complaint further alleged, for the first time, that the pump was defective.

¶ 9. Navarre, Velcon, Knappco, and Wilden all filed motions to dismiss and/or for summary judgment. They argued that Hammons's claims against them were barred by the statute of limitations because the original complaint did not properly identify them as fictitious parties pursuant to Mississippi Rule of Civil Procedure 9(h) and, therefore, the amended complaint's allegations against them did not relate back to the date of the original complaint. Knappco and Wilden also argued that the claims against them should be dismissed due to insufficient service of process. It does not appear that Metal Craft was ever served, and it never entered an appearance.

¶ 10. In response to the defendants' motions, Hammons's attorney submitted an affidavit that stated in part:

I was associated on or about February 9, 2011. I was asked to investigate and prosecute a claim, if one existed, against those individuals or entities responsible for the accident on October 25, 2009.
.... I immediately began to research and investigate the accident but was prohibited from making any meaningful investigation whatsoever because of the inability to inspect and test the fuel and the fueling equipment. I was not provided with a description of most of the products involved in the fueling operation; the names and addresses of manufacturers of the parts; or each party's roll [sic]in the refueling procedure until January of 2013. The NTSB investigator filed his supplemental report on May 26, 2011, and for the first time mentioned potential problems with the fuel supply devices....
.... The NTSB did not release any of the information until May 26, 2011, and the fuel equipment used by Provine Helicopter was not made available to the Plaintiff until approximately January of 2013 .... Only after suit was filed and after Scott Petroleum partially responded to discovery requests was it revealed that [Metal Craft, Navarre, Velcon, Knappco, and Wilden] were potentially additionally responsible for the October 25, 2009 accident ....
I did not receive ... the responses to Freedom of Information requests [from the NTSB/FAA] until April of 2013. A copy of my Freedom of Information request letter dated March 6, 2013, is attached hereto ....

¶ 11. The circuit court subsequently held a hearing on the defendants' motions to dismiss and/or for summary judgment and entered an opinion and order granting summary judgment in favor of Navarre, Velcon, Knappco, and Wilden. The court certified its order as final pursuant to Mississippi Rule of Civil Procedure 54(b).

¶ 12. Hammons appealed to this Court, and we assigned the case to the Court of Appeals, which affirmed the trial court's judgment. Hammons , --- So.3d at ----, 2017 WL 1392835, at *10. Hammons then petitioned this Court for a writ of certiorari, which we granted. Hammons v. Navarre , 2018 WL 709221, at *1 (Miss. Jan. 4, 2018). Upon review, we affirm the decision of the Court of Appeals.

STANDARD OF REVIEW

¶ 13. This Court reviews an order granting or denying summary judgment de novo. Peoples Bank of Biloxi v. McAdams , 171 So.3d 505, 508 (Miss. 2015). Moreover, we subject all questions of law to a de novo standard. Henley Timber Co. v. Ponti , 991 So.2d 1195, 1196 (Miss. 2008). The issue of the statute of limitations is a question of law which we review de novo. McAdams , 171 So.3d at 508.

ANALYSIS

I. Fictitious Parties

¶ 14. Rule 9(h) provides:

When a party is ignorant of the name of an opposing party and so alleges in his pleading , 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.

M.R.C.P. 9(h) (emphasis added). Rule 15(c)(2) allows these name substitutions to relate back to the date of original filing. M.R.C.P. 15(c)(2). "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." Id.

¶ 15. This Court has held that "the purpose of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and claims against, the fictitious party, but simply does not know that party's name." Veal v. J.P. Morgan Tr. Co. , 955 So.2d 843, 845-46 (Miss. 2007). We also have recognized that "[i]t is a principle of general application, though, that ignorance of the opposing party for fictitious party practice extends beyond mere lack of knowledge of the opposing party's name." Womble v. Singing River Hosp. , 618 So.2d 1252, 1267 (Miss. 1993), declined to follow on other grounds by Sparks v. Kim , 701 So.2d 1113, 1115-17 (Miss. 1997).

A. Womble and Veal

¶ 16. In his briefs before the Court of Appeals and his petition for writ of certiorari, Hammons argues that Veal is an improper departure from Womble . Navarre, Velcon, Knappco and Wilden all maintain that Veal is consistent with Womble . We agree with Navarre, Velcon, Knappco and Wilden. While the two cases do not conflict, a discussion of their facts and holdings is warranted.

¶ 17. Womble was a wrongful-death action brought against a number of medical defendants by the heirs of Helen Womble, who died on April 11, 1986. Womble , 618 So.2d at 1255. The original complaint, filed on March 28, 1988, included five fictitious parties who were alleged "to be unknown at that time." Id. All of the defendants were alleged to have "committed various acts of negligence which had led to ... Womble's death." Id. The trial court allowed the heirs to amend their complaint and substitute Dr. Calhoun for one of the fictitious parties on November 7, 1989. Id. at 1256. While the heirs admitted that they knew Dr. Calhoun had seen Womble, they maintained "that they had had no reason to suspect any negligence on Doctor Calhoun's part until" another physician's deposition testimony revealed "that ... Womble may have stood a higher chance of survival had some method been used to diagnose her illness and bring in a surgeon earlier." Id.

¶ 18. At the outset of its analysis of the addition of Dr. Calhoun to the suit, the Womble Court noted that Mississippi Code Section 15-1-36 (Supp. 1991), a two-year statute of limitations, governed the heirs' action. Id. at 1265-66. The Court recognized that "[t]he running of the statute of limitations under § 15-1-36 may be tolled for a reasonable period of time to allow plaintiff to acquire and peruse the appropriate medical records." Id. at 1266. Concluding that Dr. Calhoun had been added to the complaint outside the period of limitations, the Court emphasized

that there were medical records which reflected the extent of Dr. Calhoun's treatment of the decedent on the day she was admitted to the hospital. The exercise of reasonable diligence should have led appellants to discern the extent of Dr. Calhoun's involvement in this case and join him in this suit long before the passage of three years and seven months after ... Womble's death.

Id.

¶ 19. With the statute-of-limitations issue decided, the Womble Court turned to the argument that Dr. Calhoun's substitution for an original fictitious party related back to the time of filing of the original complaint under Rules 9(h) and 15(c)(2). Id. at 1266-67. After quoting Rules 9(h) and 15(c)(2), the Court recognized that:

There is a dearth of Mississippi law on the application of Rule 9(h). It is a principle of general application, though, that ignorance of the opposing party for fictitious party practice extends beyond mere lack of knowledge of the opposing party's name. Even if the plaintiff knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against the ... person.

Id. at 1267 (citing Breceda v. Gamsby , 267 Cal. App. 2d 167, 72 Cal.Rptr. 832 (1968), and Columbia Eng'g v. Espey , 429 So.2d 955 (Ala.1983) ). The Court then found that Rule 9(h) did not apply, noting that even the heirs "admit[ ] that no fair construction of the pleadings would lead to the conclusion that Dr. Calhoun was identified, even as a John Doe. For that reason this rule cannot save the action against him, in any event." Id. In rejecting the Rule 9(h) argument, the Court also returned to its earlier, reasonable-diligence analysis: "as noted above, there were numerous medical records on file at SRH indicating the extent to which ... [Dr.] Calhoun had participated in the treatment of Helen Womble." Id.

¶ 20. Without citing Womble , this Court, in Veal , again applied Rule 9(h) to a wrongful-death action. Veal , 955 So.2d at 844. In Veal , Willie Veal brought an action on behalf of Willie Smith's estate against two corporations and a number of fictitious parties. Id. With written consent of the two named defendants, Veal filed a second amended complaint that substituted newly named defendants, including J.P. Morgan Trust Co. ("J.P. Morgan"), for the named fictitious parties. Id. "In addition, the Second Amended Complaint included new facts and allegations regarding the 'substituted' defendants' involvement [in the suit]." Id. J.P. Morgan moved to dismiss, and the trial court granted the motion. Id. at 844-45.

¶ 21. On appeal, the Veal Court held that the parties added in the amended complaint were newly added parties and not substitutions under Rule 9(h). Id. at 846-47. The Court noted that the original complaint's allegations concerning the alleged fictitious parties "provide[d] no indication that Veal was aware of the existence of any of the additional defendants added by the Second Amended Complaint. Veal simply attempted to substitute newly discovered defendants for the previously named fictitious parties." Id. at 846.

¶ 22. As the Court of Appeals observed, Veal 's discussion of Rule 9(h) that led to this conclusion "is directly applicable to the present case." Hammons v. Navarre , --- So.3d ----, ----, 2017 WL 1392835, at *4 (Miss. Ct. App. Apr. 18, 2017). The Veal Court explained:

[W]here a plaintiff wishes to file suit against a defendant whose name is not known, the suit may be filed by providing the defendant a fictitious name. Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who wish to protect themselves in case they discover new defendants in the course of litigation. Rule 9(h) authorizes the plaintiff to deviate in only one respect from the requirements of the Mississippi Rules of Civil Procedure in bringing a claim. That is, the plaintiff is allowed to use a fictitious name, rather than the true name of the defendant. In other words, the purpose of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and claims against, the fictitious party, but simply does not know that party's name.
Rule 9(h) does not say that a plaintiff may include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable. For instance, if the plaintiff knew that a nurse was assisting a doctor with a procedure and that the nurse engaged in negligent conduct, the plaintiff is not prevented from proceeding with litigation against the nurse simply because the plaintiff does not know the name of the nurse. The plaintiff may sue "Nurse X" and upon learning the nurse's name, substitute it for the fictitious party under Rule 9(h). See Miss. R. Civ. P. 9(h).
However, where a plaintiff suspects that there might have been others involved in the procedure who might have been negligent, but is, at the time suit is filed, unaware of who they are or what negligent act they are alleged to have committed, the plaintiff may not include a fictitious party in the complaint. This Court has previously stated that "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." Ralph Walker, Inc. v. Gallagher , 926 So.2d 890, 896-97 (Miss. 2006) (emphasis added).

Veal , 955 So.2d at 846-47 (emphasis in original).

¶ 23. This Court consistently has applied the same reasoning that underlies Womble and Veal to numerous Rule 9(h) cases. See Rawson v. Jones , 816 So.2d 367, 369 (Miss. 2001) (citing Doe v. Mississippi Blood Servs., Inc. , 704 So.2d 1016, 1019 (Miss.1997) ) ("The purpose of Rule 9(h) is to provide a mechanism to bring in known, but unidentified, responsible parties who may only be ascertained through the use of judicial mechanisms such as discovery."); Long v. Mem'l Hosp. at Gulfport , 969 So.2d 35, 42 (Miss. 2007) ("One of the benefits of Rule 9(h) is to allow a plaintiff, who is aware of his cause of action against a defendant but ignorant of the defendant's identity, to name a fictitious party as a defendant in order to use the court's resources to discover her true identity."); Price v. Clark , 21 So.3d 509, 526 (Miss. 2009) ("[A]t the time the original complaint was filed, Price neither knew the identities of the parties, nor was she aware of any facts giving rise to any cause of action against such unknown individual or corporate entity; therefore, the trial court did not err in finding that Price's substitution did not comport with the purpose of Rule 9(h).").

¶ 24. The Veal Court's holding was consistent with precedent for three primary reasons. First, the Veal Court correctly applied the plain and ordinary meaning of Rule 9(h). As it recognized, "this Court is bound to follow the plain and ordinary meanings of the Rules of Civil Procedure." Veal , 955 So.2d at 845 (citing Poindexter v. Southern United Fire Ins. Co. , 838 So.2d 964, 971 (Miss. 2003) and Van Meter v. Alford , 774 So.2d 430, 432 (Miss. 2000) ).

¶ 25. Second, a close examination of Womble 's rule statement reveals the meaning in the statement "that ignorance of the opposing party for fictitious party practice extends beyond mere lack of knowledge of the opposing party's name." Womble , 618 So.2d at 1267. The Womble Court already had noted the "dearth of Mississippi law on the application of Rule 9(h)" before it cited Garrett and Espey to explain the rule. Id. (citing Garrett , 66 Cal.Rptr. at 592, and Espey , 429 So.2d at 958-59 ). Both Garrett and Espey support the proposition that a plaintiff may actually know the true name of an entity but still be ignorant of the entity's name under the fictitious-party rule, where the plaintiff does not know the facts necessary to realize the true name of the entity that is liable. See supra , fn. 6, 7; Garrett , 66 Cal.Rptr. at 592 ; Espey , 429 So.2d at 958-59. A number of factual scenarios exist in which this principle might apply.

¶ 26. Third, the Womble Court found that Rule 9(h) did not apply to the facts before it. Womble , 618 So.2d at 1267. While it is unnecessary to determine if Womble's analysis is dictum, even the heirs in Womble "admit[ted] that no fair construction of the pleadings would lead to the conclusion that Dr. Calhoun was identified, even as a John Doe." Id. ; see Collins by Smith v. McMurry , 539 So.2d 127, 130 (Miss. 1989) ("[T]his Court has held on more than one occasion that a statement which qualifies as dictum does not have a binding effect."). In light of our analysis, we reaffirm Veal and decline to find that it was an improper departure from our precedent.

B. Application of Rule 9(h)

¶ 27. The present question under Rule 9(h) is whether or not Hammons's original complaint identified a cause of action against a fictitious party whose real name Hammons later substituted in his amended complaint. Rule 9(h) allows a party who "is ignorant of the name of an opposing party" to state so in the complaint and later amend the complaint when the party's "true name is discovered." M.R.C.P. 9(h). Rule 9(h) grants a party the authority to amend only "by substituting the true name" of the fictitious party. Id. Inherent within a Rule 9(h) claim against a fictitious party is an actual claim against that party.

¶ 28. Here, though, it is clear from the record that Hammons did not make any claim against any fictitious defendant in his original complaint. See Price , 21 So.3d at 526 ; Veal , 955 So.2d at 846. His original complaint admitted as much:

Defendants, A-P, are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. Plaintiff will amend his Complaint and include the true names and addresses of the Defendants A-P once their identities are learned and once their liabilities are ascertained.

Hammons's sole theory of liability in his original complaint was that Scott Petroleum supplied defective fuel. Further, Hammons was clear in his original allegations that the defective fuel was defective at the point that it left Scott Petroleum's control and was used to fuel the aircraft in the same defective state. No other allegations were made in the original complaint against any other party.

¶ 29. Further, Hammons's allegations in the amended complaint were the first allegations against the fictitious parties and directly contradicted his original theory of the case. In the original complaint, all of the liability was cast upon Scott Petroleum, and there was no implication or hint that the fuel may have been affected by the fuel truck. Hammons, through the amended complaint, though, alleged that Scott Petroleum "certified that the fuel pumped into the Aircraft was safe, not defective and not unreasonably dangerous." He then alleged the new claim that the fuel was contaminated by Navarre, Velcon, Knappco and Wilden after it left Scott Petroleum's control.

¶ 30. "[A]t the time the original complaint was filed, [Hammons] neither knew the identities of the parties, nor was [ ]he aware of any facts giving rise to any cause of action against such unknown individual or corporate entity." Price , 21 So.3d at 526. Thus, Hammons's alleged substitutions in his amended complaint "simply attempted to substitute newly discovered defendants for the previously named fictitious parties." Veal , 955 So.2d at 846. Such an amendment is not contemplated under Rule 9(h). Rule 9(h) does not provide authority for a party to join a fictitious party without knowing whether or not the party that is joined is liable. Thus, Hammons-who admitted that the alleged fictitious defendants' "liability to the Plaintiff is unknown at this time"-did not join any fictitious parties to his suit by means of the original complaint. Navarre, Velcon, Knappco and Wilden were named to the suit, for the first time, by Hammons's amended complaint.

¶ 31. Thus, Hammons failed to properly name any fictitious defendants in his original complaint. We now turn to the application of the statute of limitations.

II. Statute of Limitations

¶ 32. Hammons's claims are governed by the three-year statute of limitations. Miss. Code Ann. § 15-1-49 (Rev. 2012). Section 15-1-49 provides, in part:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss. Code Ann. § 15-1-49.

¶ 33. Hammons crashed on October 25, 2009. Hammons filed his amended complaint against Navarre, Velcon, Knappco and Wilden on April 30, 2013. As just over three years and six months had passed between the crash and Hammons's amended complaint, the amended complaint was filed outside the three-year statute of limitations. Under Section 15-1-49, these claims are time-barred unless the claims relate back to the date of filing of the original complaint, the cause of action had not accrued or the statute of limitations was tolled.

¶ 34. As already recognized, Rule 15(c)(2) notes that "[a]n amendment pursuant to Rule 9(h)... relates back to the date of the original pleading." M.R.C.P. 15(c)(2). Hammons's addition of new parties, though, was not an amendment pursuant to Rule 9(h) and does not relate back to the date of filing of his original complaint.

¶ 35. Hammons also argues that his cause of action against Navarre, Velcon, Knappco and Wilden did not accrue until he discovered their identities and their alleged wrongful conduct. This argument, though, is contrary to the plain language of Section 15-1-49 : "In actions ... which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered ... the injury." Miss. Code Ann. § 15-1-49(2). The cause of action accrues upon the discovery of the injury. This is not a case that would implicate subsection two of Section 15-1-49. Hammons's injury was known to him immediately.

¶ 36. Even if subsection two did apply, this Court has addressed this issue directly, as the Court of Appeals recognized. See Angle v. Koppers Inc. , 42 So.3d 1, 5 (Miss. 2010) ("[T]he plain language of the statute supports [the] argument that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause .") (emphasis in original). We recently reaffirmed Angle 's holding. City of Tupelo v. O'Callaghan , 208 So.3d 556, 569 (Miss. 2017) (citing Angle , 42 So.3d at 5-7 ).

¶ 37. Hammons's final argument is that the statute of limitations was tolled by Mississippi Code Section 15-1-63, which provides:

If, after any cause of action has accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after he shall return.

Miss. Code Ann. § 15-1-63 (Rev. 2012). In Sullivan v. Trustmark National Bank , this Court stated that this provision

require[s] that a plaintiff seeking to benefit from it must have been unable to effect service on the defendant for the period which it is claimed that the statute is tolled. That is, the defendant must have left the state and not be amenable to service under a long-arm statute or other means, because for example, his whereabouts are unknown. The period of time that the defendant's whereabouts are unknown is deducted from the period of the statute which would otherwise have run, in effect, adding that time to the statute of limitations. However, the statute of limitations is not tolled where the plaintiff knew or should have known of the defendant's whereabouts. The burden of proof that the defendant was absent and not amenable to service is on the plaintiff.

Sullivan v. Trustmark Nat'l Bank , 653 So.2d 930, 931-32 (Miss. 1995) (citations omitted).

¶ 38. According to Hammons, Section 15-1-63 tolled the limitations period simply because it allegedly was impossible for him to discover the identities of the added defendants. As the Court of Appeals noted, Section 15-1-63never has been applied to toll the statute of limitations where a plaintiff cannot discover the identity of a defendant. Further, Hammons provided no evidence that the added defendants were not amenable to service. In fact, he promptly served or attempted service on them after he filed the amended complaint.

¶ 39. We recognize the finality of our decision today for Hammons. Hammons, though, was not without recourse under our law. Hammons could have amended his complaint to allege a cause of action to hold liable the fictitious defendants before the statute of limitations ran. On May 26, 2011, the NTSB publicly adopted the final report of the crash. This was only one year and seven months after the accident on October 25, 2009. While no claim is in the record that the NTSB report was not publicly available on May 26, 2011, Hammons's counsel (who, according to his affidavit, primarily practices in airplane and helicopter crash litigation) admitted that he received the NTSB report on April 6, 2012. This was approximately two years and five months after the accident. The NTSB report revealed information about the fuel truck and its mechanisms that clearly contradicted the sole theory of liability in Hammons's original complaint. There is no evidence in the record or any allegation before us that Hammons, after reviewing the NTSB report, could not have amended his complaint to allege a theory of liability against the fictitious defendants to preserve his claims against them.

CONCLUSION

¶ 40. Hammons's original complaint did not name any fictitious defendants within the meaning of Rule 9(h). As such, he actually named Navarre, Velcon, Knappco and Wilden for the first time in his amended complaint; thus, the amendment did not relate back to the time of filing of the original complaint. Further, the claims against Navarre, Velcon, Knappco and Wilden-made three years and six months after the injury in this case-are barred by the statute of limitations. Therefore, we affirm the judgment of the circuit court and the decision of the Court of Appeals.

¶ 41. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 42. I respectfully dissent. I would find that the amended complaint filed by Robert Hammons, Jr., properly made substitutions for fictitious parties under Mississippi Rule of Civil Procedure 9(h). Therefore, I would reverse and remand the case to the circuit court for further proceedings, including a determination of whether Hammons exercised reasonable diligence in identifying Navarre, Velcon, Knappco, and Wilden for the purposes of relation back under Mississippi Rule of Civil Procedure 15(c)(2).

¶ 43. Rule 9(h) provides:

(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, 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.

M.R.C.P. 9(h). We have held that "[t]he 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." Doe v. Miss. Blood Servs. , 704 So.2d 1016, 1019 (Miss. 1997).

¶ 44. In Womble v. Singing River Hospital , 618 So.2d 1252, 1267 (Miss. 1993), overruled on other grounds , this Court discussed Rule 9(h) and expressed that:

There is a dearth of Mississippi law on the application of Rule 9(h). It is a principle of general application, though, that ignorance of the opposing party for fictitious party practice extends beyond mere lack of knowledge of the opposing party's name. Even if the plaintiff knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against ... that person . See , e.g. , Br[e]ceda v. Gamsby , 267 Cal. App. 2d 167, 72 Cal.Rptr. 832 (1968) ; Columbia Engineering v. Espey , 429 So.2d 955 (Ala. 1983).

Id. (emphasis added). In Doe v. Mississippi Blood Services , we expanded on Womble and held that, because of the relation-back privilege in Rule 9, a plaintiff seeking to amend the complaint must have exercised reasonable diligence to discover the identities of the fictitious parties. Doe , 704 So.2d at 1019. As outlined below, Womble and Doe have provided the standard used in numerous subsequent cases to determine issues of fictitious party practice.

¶ 45. But in Veal v. J.P. Morgan Trust Co. , 955 So.2d 843, 846 (Miss. 2007), this Court, without citing Womble , articulated that:

Rule 9(h) authorizes the plaintiff to deviate in only one respect from the requirements of the Mississippi Rules of Civil Procedure in bringing a claim. That is, the plaintiff is allowed to use a fictitious name, rather than the true name of the defendant. In other words, the purpose of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrong ful conduct of, and claims against, the fictitious party, but simply does not know that party's name .

Id. (emphasis added).

¶ 46. It is plain that, under Womble and Doe , a plaintiff successfully can bring a claim against a fictitious party even if the plaintiff lacks knowledge of the facts giving rise to a cause of action against that party, and amendment will be allowed if the plaintiff exercised reasonable diligence to discover the party's identity. Womble , 618 So.2d at 1267 ; Doe , 704 So.2d at 1019. But Veal allows substitution only if the plaintiff is fully cognizant of the claim against the unknown party but ignorant of the party's name. I would find that Womble and Veal provide two different standards for fictitious party practice under Rule 9(h). The majority dispenses with the Womble standard and applies the standard from Veal . I would find that the rules from Womble and Doe are controlling, and that, because Hammons's original complaint and his amended complaint both alleged the same general theory, that the accident was caused by defective fuel, his amended complaint satisfied the fictitious party pleading requirements of Rule 9(h). The only remaining inquiry is whether Hammons exercised reasonable diligence in discovering the identities of the fictitious parties.

¶ 47. As Judge Greenlee rightly observed in his dissent for the Court of Appeals, the courts of Mississippi have relied most frequently on the Rule 9(h) standard announced by Womble . Price v. Clark , 21 So.3d 509, 526 (Miss. 2009) ; Rawson v. Jones , 816 So.2d 367, 369 (Miss. 2001) ; Doe v. Miss. Blood Servs., Inc. , 704 So.2d 1016, 1018-19 (Miss. 1997) ; Davenport v. Hertz Equip. Rental Corp. , 187 So.3d 194, 199 (Miss. Ct. App. 2016) ; Turnage v. McConnell Tech. , 671 Fed.Appx. 307, 309 (5th Cir. 2016) ; Pruitt v. Invacare Corp. , No. 2:13CV293-TSL-JCG, 2014 WL 5465342, at *5 (S.D. Miss. Oct. 28, 2014) ; Scoggins v. Boston Scientific Corp. , No. 2:08CV032-P-A, 2008 WL 1821498, at **2-3 (N.D. Miss. Apr. 22, 2008). As Judge Greenlee noted, the Womble standard has been employed as the prevailing rule even after our decision in Veal .

¶ 48. Moreover, the rule from Womble fully comports with the relation-back provisions of Rule 9(h) and Rule 15(c). For relation back under Rule 15(c), the claim or defense must have arisen "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." M.R.C.P. 15(c). Because an amendment under Rule 9(h) does not change the party against whom a claim is asserted, such an amendment automatically relates back. M.R.C.P. 15(c)(2). Under Womble , "[e]ven if the plaintiff knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against [ ] that person." Womble , 618 So.2d at 1267. I observe that this language came almost verbatim from Breceda v. Gamsby , 267 Cal. App. 2d 167, 174, 72 Cal.Rptr. 832, 837-38 (1968). Breceda also explained that "[a] defendant unaware of the suit against him by a ficti[t]ious name is in no worse position if, in addition to substituting his true name, the amendment makes other changes in the allegations on the basis of the same general set of facts." Id. (quoting Austin v. Mass. Bonding & Ins. Co. , 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681, 684 (1961) ).

¶ 49. Turning to this case, I would find that Hammons's original complaint sufficiently set forth claims against the appellees. Under Womble , Hammons was not required to allege all the facts giving him a cause of action against the unknown parties to satisfy Rule 9(h). A comparison of Hammons's original complaint with the amended complaint reveals that both complaints were founded on the same theory and general set of facts: that a fuel defect caused the injurious helicopter crash. The theory underlying Hammons's original complaint was that "the fuel pumped into the Aircraft in question was defective and unreasonably dangerous." In his amended complaint, Hammons continued to maintain this theory, claiming that "[t]he fuel pumped into the accident Aircraft was defective and unreasonably dangerous and/or was rendered defective and/or unreasonably dangerous because of the actions or non actions of [the defendants]." Thus, as recognized by Judge Greenlee in his dissenting opinion for the Court of Appeals, Hammons's original complaint alleged a claim for product liability for defective fuel, and his amended complaint continued to maintain a product liability claim based on defective fuel, although more detailed, against the appellees.

¶ 50. I recognize the majority's concern with the fact that Hammons's complaint says that the fictitious defendants "are corporations or persons whose liability to the Plaintiff is unknown at this time." Nonetheless, this Court has held that it is not bound by the literal language of the complaint and that substance must prevail over form. Sanderson Farms, Inc. v. McCullough , 212 So.3d 69, 74 (Miss. 2017). Substantively, Hammons maintained the same claim between his original and amended complaints. I would hold that, because Hammons's amended complaint asserted the same theory of liability, based on the same general facts, as his original complaint, it complied with Rule 9(h). However, because the trial court never considered whether Hammons exercised reasonable diligence to identify the fictitious parties, I would reverse and remand for a determination on this issue.

KING, J., JOINS THIS OPINION.

      Wilson, J., wrote the lead opinion, in which Griffis, P.J., Carlton and Fair, JJ., concurred. Barnes, J., concurred in part and in the result without separate written opinion. Greenlee, J., dissented with separate written opinion, in which Lee, C.J., Irving, P.J., Ishee and Westbrooks, JJ., joined.

      Much of this section is taken directly from the statement of facts and procedural history of the Court of Appeals. Hammons , --- So.3d at ---- - ----, 2017 WL 1392835, at **1-4.

      "Wilden" subsequently identified itself as Wilden Pump and Engineering LLC.

      The circuit court did not address the insufficient-service-of-process arguments because it dismissed all claims against Knappco and Wilden based on the statute of limitations. Knappco and Wilden argued the issue before the Court of Appeals as an alternative ground for affirmance. We need not address the issue, as Hammons's claims are time-barred.

      In its discussion of the civil procedure rule that governs fictitious parties in California, the Breceda Court cites Garrett v. Crown Coach Corp. , 259 Cal. App. 2d 647, 650, 66 Cal.Rptr. 590, 592 (Ct. App. 1968). Breceda , 72 Cal.Rptr. at 838. Garrett explains that "even though the plaintiff may know of the existence of a person, the plaintiff is 'ignorant' within the meaning of [the fictitious-party rule] if he lacks knowledge of that person's connection with the case ." Garrett , 66 Cal.Rptr. at 592. Womble 's rule statement and holding is in agreement with Garrett 's interpretation of the term "ignorant" within the rule.

      Espey states,
      [A] plaintiff, in order to invoke the relation back principles of Rules 9(h) and 15(c), must meet the following criteria: ... 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued.
      Espey , 429 So.2d at 958-59 (Ala. 1983) (emphasis added).

      As to the fictitious defendants, Veal, in her original complaint, had alleged:
      Said Defendants are named pursuant to Miss. R. Civ. P. 9(h), insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of, or in the staffing, supervision, administration and direction of the care and treatment of, [the deceased] during her residency at AUTUMN LEAVES NURSING HOME. Alternatively, said Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of [the deceased] during her residency at AUTUMN LEAVES NURSING HOME.
      Id. at 846 (alterations in original).

      Hammons needed an additional fifteen pages to explain the new allegations against Navarre, Velcon, Knappco and Wilden. The original complaint was eleven pages; the amended complaint was twenty-six pages.

      Judge Wilson wrote a well-reasoned analysis of the statute-of-limitations issue for the Court of Appeals, from which we borrow heavily. Hammons , --- So.3d at ---- - ----, 2017 WL 1392835, at **9-10.

      It is settled law that we review statute-of-limitations issues de novo. McAdams , 171 So.3d at 508. Thus, Hammons's argument that the circuit court did not consider his arguments concerning the statute of limitations and that he is entitled to remand on the issue is without merit. We also find no support for Hammons's claim. The circuit court did not specifically detail each of Hammons's arguments in its analysis-focusing on Rules 9 and 15, but it clearly determined that the claim was time-barred.

      Hammons of course argues that he already had preserved these claims by means of his original complaint. As discussed, however, in his original complaint, Hammons admitted that he did not know if the alleged fictitious defendants even were liable to him. With the statute of limitations looming, Hammons did nothing to bring claims against the alleged fictitious defendants. Instead, he allowed the statute of limitations to expire on his claims without amending his complaint to inform the Court that the fictitious defendants actually were liable to him. Nothing in the law required Hammons to know every detail of his theory of liability against the fictitious defendants. Mississippi long has recognized pleading in the alternative. See M.R.C.P. 8(a), (e)(2) ("A party may set forth two or more statements of a claim or defense alternatively or hypothetically...."). The law, though, did require Hammons actually to bring a cause of action before the statute of limitations expired. Further, Hammons simply could have added additional defendants to his lawsuit. See M.R.C.P. 21. Nothing in our holding today limits the types of claims or the number of claims available to a party under the Rules of Civil Procedure. A party may toll the statute of limitations against a fictitious party by bringing a known claim against the fictitious party. Otherwise, a party simply must add another party under Rule 21. M.R.C.P. 21. Any claims against new parties joined not only would be subject to the statute of limitations-including any claim of tolling-but likewise would have available to them any defenses under the statute of limitations as well.