City of Tupelo v. Martin, No. 97-IA-01542-SCT
| Decision Date | 02 September 1999 |
| Docket Number | No. 97-IA-01624-SCT, No. 97-IA-01542-SCT, No. 97-IA-01648-SCT., No. 97-IA-01647-SCT |
| Citation | 747 So.2d 822 |
| Parties | CITY OF TUPELO v. Heather J. MARTIN; Judy Smith, as Mother and Court Appointed Conservator of the Person and Estate of William Greg Smith; Annette McKay, Mother and Representative of the Heirs at Law of Lisa May, Deceased; Mamie Ivy, Mother and Representative of The Heirs at Law of Calandra C. Ivy, Deceased; Frankie M. Hughes, Mother and Representative of the Heirs at Law of Chris Hughes, Deceased; Delmontez Magee, Pamela Louise Harris and Lorie Lee Armstrong. City of Tupelo v. Heather J. Martin; Judy Smith, as Mother and Court Appointed Conservator of the Person and Estate of William Greg Smith; Annette McKay, Mother and Representative of the Heirs at Law of Lisa May, Deceased; Mamie Ivy, Mother and Representative of The Heirs at Law of Calandra C. Ivy, Deceased; Frankie M. Hughes, Mother and Representative of the Heirs at Law of Chris Hughes, Deceased; Delmontez Magee; Pamela Louise Harris; and Lorie Lee Armstrong. City of Tupelo v. Willie Paul Dixon, Father and Legal Heir at Law of Marcus Dixon, Deceased. City of Tupelo v. Annie Pearl Stevens, Mother and Legal Heir at Law of Yusef McKinley, Deceased. |
| Court | Mississippi Supreme Court |
Martha Bost Stegall, Tupelo, Attorney for Appellant.
Joseph C. Langston, Ronald Michael, Richard Bowen, Booneville, Michael D. Greer, Tupelo, Jimmy D. Shelton, Attorneys for Appellees.
EN BANC.
WALLER, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. These four consolidated interlocutory appeals arise out of an automobile wreck which resulted in the deaths of five persons and injuries to five other people. After the one-year Tort Claims Act statute of limitations had run, the Circuit Court of Lee County, Mississippi, issued orders granting leave for the representatives of Marcus Dixon, deceased, and Yusef McKinley, deceased, to join in the complaints which had been timely filed against the City of Tupelo by the representatives of other persons killed in the accident. Thereafter, the circuit court denied the City of Tupelo's motion for judgment on the pleadings which sought dismissal of these claims based upon failure to comply with the pre-suit notice of claim and the statute of limitations requirements of Miss. Code Ann. § 11-46-11 (Supp.1998).1 After the circuit court certified its orders, the City of Tupelo petitioned for interlocutory appeal. This Court, by way of four separate orders, granted the interlocutory appeals to consider the following issues assigned by the City of Tupelo:
STATEMENT OF THE FACTS
¶ 2. The civil actions underlying these appeals arose from a vehicular accident which occurred in the late evening hours of January 12, 1996, on Coley Road in Tupelo, Mississippi. As a result of freezing conditions, a large pool of water turned into a sheet of ice that covered both lanes of traffic on Coley Road. The patch of ice triggered a three-car accident in which five people were killed and five people were injured. Those injured were Heather J. Martin, William Greg Smith, Delmontez Magee, Pamela Louise Harris and Lorie Lee Armstrong. Those killed in the wreck were Lisa May, Chris Hughes, Calandra C. Ivy, Yusef McKinley and Marcus Dixon. The representatives of all of the accident victims except for Yusef McKinley and Marcus Dixon timely and properly filed separate notices of claim with the mayor of the City of Tupelo in accordance with what is commonly referred to as the Mississippi Tort Claims Act. See Miss.Code Ann. § 11-46-11(2) (Supp.1998). The plaintiffs claimed that the City was responsible for the accident because it failed to maintain properly the drainage along Coley Road, leading to the accumulation of the thin sheet of ice on the road.
¶ 3. Thereafter, eight separate lawsuits were timely filed by each of the persons who had served the City with a notice of claim. The eight actions were then consolidated in the circuit court under the lead action of Heather J. Martin, et al. v. City of Tupelo. Following denial of the City's motion for summary judgment based on sovereign immunity, the lawsuits were settled. At the time of settlement, the City had not been served with a notice of claim concerning the deaths of either McKinley or Dixon. On August 22, 1997, more than 19 months after the accident, Annie Pearl Stevens, McKinley's representative, filed a motion for leave to file a complaint and join the action filed by the representative of Chris Hughes in the Lee County Circuit Court. Dixon's representative, Willie Paul Dixon, filed an identical motion on November 4, 1997, seeking to join the lawsuit filed by the representative of Lisa May.
¶ 4. The two motions asserted that McKinley and Dixon, who died as a result of the same accident complained of in the pending lawsuits, were mistakenly not included in the other lawsuits. The motions asserted that joinder would protect McKinley and Dixon from possible prejudice and avoid duplication of discovery and multiple litigation. They further asserted that the City would suffer no prejudice. The City opposed the motions on the grounds that any lawsuit on behalf of McKinley or Dixon was barred because no one had filed a notice of claims on behalf of either plaintiff, and, in any event, the statute of limitations had run as to both lawsuits.
¶ 5. The trial judge, Honorable Frank A. Russell, granted the motions of both McKinley and Dixon. He found that the City had actual notice of both claims within one-year of the accident and that the City would suffer no prejudice. As to McKinley, the trial judge held that the failure to file timely was due to the excusable neglect of his attorneys, while Dixon's failure to file was due to the excusable neglect of his heir. Judge Russell ruled that allowing joinder was "within the sound discretion of the trial court." ¶ 6. The trial court distinguished City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997), on the basis that Lumpkin involved a single plaintiff who failed to notify the City of his possible claim. As a result the City was unable to foresee that it would have to mount a defense. Judge Russell also relied on Womble v. Singing River Hosp., 618 So.2d 1252 (Miss.1993), which is discussed further infra. The lower court found that the City had actual notice and that no time or resources would be wasted by defending the McKinley and Dixon lawsuits. Therefore, the circuit court granted the representatives of McKinley and Dixon leave to file complaints against the City and subsequently amended its orders to certify them for interlocutory appeal.
¶ 7. On October 16 and November 13, 1997, respectively, the representatives of McKinley and Dixon filed their complaints which asserted wrongful death claims arising from the January 12, 1996, accident. However, the complaints failed to comply with the notice of claim requirement of § 11-46-11. In its answer, the City admitted that the accident occurred on January 12, 1996, but denied liability and asserted as defenses the failure to comply with the notice of claim and statute of limitations provisions of § 11-46-11. At the same time, the City moved for judgment on the pleadings pursuant to M.R.C.P. 12(c) on the notice of claim and statute of limitations issues. The circuit court denied those motions in separate one-page orders filed on December 18, 1997, and certified the orders for interlocutory appeal on the issue of whether the actions were barred by the notice of claim and statute of limitations provisions of the Tort Claims Act. This Court then granted the City's petitions for interlocutory appeal and consolidated these four interlocutory appeals.
DISCUSSION OF THE LAW
¶ 8. In granting the representatives of McKinley and Dixon leave to file their complaints in the pending consolidated actions, the circuit court did not discuss intervention or cite M.R.C.P. 24 which, as its comment states, "governs the rights of a stranger to the action who desires to be joined." Rule 24 provides in pertinent part:
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