Lead Opinion
ON MOTION FOR REHEARING
for the Court:
¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.
¶ 2. On February 6, 2009, Charles Larry McGraw filed a personal-injury action in the Circuit Court of Claiborne County against four sand suppliers: Clark Sand Company, Inc.; Mississippi Valley Silica Co., Inc.; Precision Packaging, Inc.; and Custom Aggregates and Grinding, Inc. McGraw alleged the four defendants’ sand caused his lung disease, silicosis.
¶ 3. On October 19, 2009, McGraw filed a motion for leave to amend his complaint to add his wife as a plaintiff and American Optical Corporation as an additional defendant. On December 4, 2009, McGraw filed an amended motion for leave to amend his complaint (First Amended Complaint) to modify his request to add four more defendants: Lonestar Industries, Inc.; Specialty Sand Company; Pearl Sands, Inc.; and
¶4. All six defendants petitioned this Court for interlocutory appeal concerning the trial court’s order denying the defendants’ Motion for Summary Judgment, or Alternatively, Motion to Strike Second Amended Complaint and Dismiss First Amended Complaint. The defendants argue that, because the original parties settled with McGraw prior to his motions for leave to amend, the trial court imprоperly allowed the filing of the First Amended Complaint to add new parties. The defendants also argue that, because McGraw did not seek court approval in filing his Second Amended Complaint, that complaint should be struck.
¶ 5. We find that the trial court abused its discretion in allowing McGraw to file his Second Amended Complaint, because he was required to obtain court approval. However, we find that the trial cоurt did comply with Rule 15 when it allowed McGraw to file his First Amended Complaint, because McGraw filed his motion before all of the original parties were dismissed with prejudice. In addition, the doctrine of election of remedies does not apply, because McGraw has not presented inconsistent theories against the original defendants and new defendants. The issues raised regarding judicial estoppel and clаim-splitting are without merit. We affirm the denial of the motion to dismiss the First Amended Complaint and reverse the denial of the motion to strike the Second Amended Complaint.
FACTS
¶ 6. McGraw filed the instant lawsuit on February 6, 2009, against several makers of the sand used in sandblasting. McGraw originally claimed his lungs had been permanently injured from his exposure to res-pirable silica due to the use of the products manufactured by the following compаnies: Clark Sand Company, Inc.; Mississippi Valley Silica Co., Inc.; Precision Packaging, Inc.; and Custom Aggregates and Grinding, Inc. McGraw claimed that, as a result of his exposure, he suffers from shortness of breath and silicosis.
¶ 7. After the case went to trial on September 22, 2009, and McGraw agreed to settle with the four original defendants, he filed a motion for leave to amend his complaint in order to add more defendants to the suit. McGrаw consummated his settlement with two of the four original four defendants on October 27, 2009, but filed his motion before any of the original parties was dismissed with prejudice. In his amended complaint, McGraw alleged that his claims against the new defendants were substantially the same as those against the original four defendants. As in the original complaint, McGraw asserted counts of strict liability and product defects, negligence, breach of warranty, civil conspiracy, acting in concert and gross negligence. The trial court granted McGraw’s motion to amend on January 5, 2010.
¶ 8. The order allowing McGraw to file the First Amended Complaint was styled listing the four original defendants. On January 19, 2010, McGraw filed a Second Amended Complaint, which added a sixth party, Dependable Abrasives, Inc. McGraw did not obtain court approval to file this complaint. It is uncontestеd by both parties that the defendants were not served with the First Amended Complaint. The
STANDARD OF REVIEW
¶ 9. This case was petitioned to this Court based on the trial’s court order denying the motion to strike McGraw’s Second Amended Complaint and dismiss McGraw’s First Amended Complaint. “Motions for leave to amend complaint are left to the sound discretion of trial court; the Supreme Court reviews such determinations under an abuse of discretion standard; and, unless convinced that trial judge abused discretion, the Supreme Court is without authority to reverse.” Moeller v. Am. Guarantee & Liab. Ins. Co.,
DISCUSSION
I. WHETHER THE AMENDED COMPLAINT WAS PROPER.
¶ 10. Rule 15 of the Federal Rules of Civil Procedure allows for amendment of complaints. Fed.R.Civ.P. 15. The Mississippi Rules of Civil Procedure were modeled after the Federal Rules of Civil Procedure. White v. Stewman,
¶ 11. Rule 15(a) states in pertinent part:
A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served ... Otherwise a party may amend a pleading only 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) (emphasis added). This Court has held that “freely given” means that “if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Estes v. Starnes,
¶ 12. The defendants assert that, because the defendants in the original complaint claimed the case was fully settled with McGraw at the close of trial on
¶ 13. The defendants rely upon Wilner v. White,
¶ 14. The defendants also argue that, because the Second Amended Complaint was served on all six defendants, and that complaint was improper, the First Amended Complaint should be dismissed. This issue is without merit. McGraw filed his motion for leave to amend his complaint on October 19, 2009. In that filing, he added American Optical Corporation. On December 4, 2009, McGraw amended that complaint to include Lonestar Industries, Inc.; Specialty Sand Company; Pearl Sands, Inc.; and Pearl Specialty Sand, Inc. On January 5, 2010, the trial court issued an order allowing McGraw to file his First Amended Complaint. Those five defendants were properly served within the 120-day period allowed by Mississippi Civil Procedure Rule 4(h).
¶ 15. Although Veal is distinguishable from the present case, this Court’s discussion of Rule 15(a) supports the defendants’ motion to strike the Second Amended Complaint. In Veal, the plaintiff also filed two amended complaints, but did not seek leave of court for either complaint. Veal,
¶ 16. This Court’s holding in Veal makes McGraw’s Second Amended Complaint improper. In his complaint, McGraw failed to obtain leave of court to add the sixth defendant, Dependable Abrasives, Inc. Therefore, we find that the trial court abused its discretion in denying the motion to strike the Second Amended Complaint, because it failed to read Rule 15 in conjunction with Rule 21, which requires court approval to amend a second complaint that adds new defendants.
II. WHETHER THE DOCTRINE OF ELECTION OF REMEDIES APPLIES.
¶ 17. The doctrine of election of remedies does not apply in the present case because it requires two separate actions filed in different courts. This doctrine, used before the enactment of the Federal Rules of Civil Procedure, and thus the Mississippi Rules of Civil Procedure, has three elements: “(1) the existence of two or more remedies, (2) the inconsistency between such remedies, and (8) a choice of one of them.” O’Briant v. Hull,
III. WHETHER THE DOCTRINE OF JUDICIAL ESTOPPEL APPLIES.
¶ 18. The doctrine of judicial es-toppel is inapplicable in the present case. “Judicial estoppel is a doctrine of law ap
¶ 19. The defendants claim that, because McGraw gave conflicting testimony at separate depositions, he should be es-topped from bringing his amended claim. First, McGraw should not be estopped, because this is not a separate action. The trial court granted McGraw’s motion to amend his original complaint. As we previously stated, this case has the same docket number and is in the same court. Judicial “estoppel arises from the taking of a position by a party to a suit that is inconsistent with the position previously asserted in prior litigation.” Beyer v. Easterling,
Clearly, testimony given in a prior action does not estop the witness from testifying to the contrary in a subsequent action against one not a party to the prior action, where the former testimony was given by mistake or inadvertence or without full knowledge of the facts and is so explained by the witness in a subsequent action. In other words, the oath, to be binding as an estoppel, must be willfully false....
Id. at 227 (citing 28 Am. Jur. 2d Estoppel and Waiver § 71) (1996) (footnotes omitted). Therefore, even if judicial estoppel were applicable in the present suit, McGraw would not be estopped based on his previous testimony. During his second deposition, McGraw stated that his illness impaired his ability to tell the facts in the first deposition. Although McGraw’s actions and his attorney’s actions are questionable, silicosis often can be attributed to several different silica manufacturers, and there is no evidence to indicate that McGraw’s statements were willfully false. We find that this question should be left for the jury.
IV. WHETHER McGRAW HAS ENGAGED IN CLAIM-SPLITTING.
¶ 20. There can be no claim-splitting in the present case, because there has been only one complaint. The defendants use Adams v. Baptist Memorial Hospital-Desoto, Inc.,
CONCLUSION
¶ 21. We find that the trial court complied with Rule 15 in allowing McGraw to file his First Amended Complaint. We also find that the trial court abused its discretion in allowing McGraw to file his Second Amended Complaint. Therefore, we affirm the denial of the motion to dismiss the First Amended Complaint and reverse the denial of the motion to strike the. Second Amended Complaint. Based on our decision to strike the Second Amended Complaint, which was the Complaint actually served upon the defendants, we remand the issue of service of process to the trial court so that it may determine whether to allow the plaintiff properly to effectuate service. The case is remanded for further proceedings consistent with this opinion.
Notes
. McGraw said that he had developed silicosis during his wоrk on numerous worksites from 1975 to 1999, where he was exposed to sandblasting.
. McGraw claimed that, because no responsive pleading had been served since the First Amended Complaint, he was allowed to amend his complaint under Rule 15 without obtaining court approval.
. All five defendants acknowledged receipt of summons between February 2, 2010, and February 8, 2010.
. Rule 21 provides that the "[m]isjoinder of parties is not ground for dismissаl of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.” Miss. R. Civ. P. 21.
. This Court cites several federal cases that interpret Federal Rule of Civil Procedure 15(a). All cases cited hold that leave of court is required when adding new defendants. Veal,
Concurrence in Part
concurring in part and dissenting in part:
¶ 23. I concur with my esteemed colleagues in the majority that the trial court did not abuse its discretion in allowing MeGraw to file the First Amended Complaint. Maj. Op. at ¶ 14. However, I do not agree that the Defendants’ Motion to Strike the Second Amended Complaint should have been granted.
¶24. The majority finds that, because the Second Amended Complaint included an additional defendant, MeGraw wаs required to seek leave of the court under Mississippi Rule of Civil Procedure 21 before filing the amended complaint. Rule 21, in pertinent part, provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Miss. R. Civ. P. 21. I, however, do not interpret Rule 21 as precluding a party from amending a complaint when nо responsive pleading has been filed. In the instant case, MeGraw, with leave of the court, filed his First Amended Complaint, then added new defendants, who were not immediately served with process. As a result, no responsive pleadings had been generated when MeGraw added still another defendant and filed the Second Amended Complaint; thus, issue had not been joined.
¶ 25. Since thе Mississippi Rules of Civil Procedure were patterned after the Federal Rules of Procedure, “[i]n construing our rules, we look for guidance to the federal cases.... ” Bourn v. Tomlinson Interest, Inc.,
¶ 26. However, in McLellan v. Mississippi Power & Light Co.,
It might be argued that Rule 21 is the general provision since it deals in broad terms with dropping and adding parties by motion, and Rule 15(a) is a more specific provision beсause it sets forth a particular means by which a party may attempt to drop or add parties — by an amendment to the pleadings. Viewed from this perspective, any attempt to change parties by amendment before the time to amend as of course has expired should be governed by Rule 15(a)(1) and may be made without leave of court.
6 Wright, et al., supra § 1479.
¶ 27. Accordingly, I decline to join the majority in its reliance on the holding in Veal v. J.P. Morgan Trust Co., N.A.,
KING, J„ JOINS THIS OPINION.
. Joinder of issue: The taking up of the opposite side of a case, or the contrary view on a question. Black’s Law Dictionary 854 (8th ed. 2004).