Cook v. NPN Props.

• Citation: 299 So.3d 797
• Decision Date: 26 November 2019
• Docket Number: NO. 2018-CA-00601-COA,2018-CA-00601-COA
• Parties: Carol COOK, Appellant v. NPN PROPERTIES, a Mississippi Corporation d/b/a Comfort Inn, Appellee
• Court: Court of Appeals of Mississippi

299 So.3d 797

Carol COOK, Appellant

v.NPN PROPERTIES, a Mississippi Corporation d/b/a Comfort Inn, Appellee

NO. 2018-CA-00601-COA

Court of Appeals of Mississippi.

November 26, 2019

Rehearing Denied May 5, 2020

ATTORNEY FOR APPELLANT: ALFRED L. FELDER, McComb

ATTORNEY FOR APPELLEE: THOMAS RAY JULIAN, Jackson

BEFORE CARLTON, P.J., GREENLEE AND TINDELL, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Carol Cook filed a negligence action against NPN Properties after she slipped and fell at the Comfort Inn in McComb, Mississippi. The Pike County Circuit Court granted NPN Properties' motion for summary judgment. Cook filed a post-judgment motion, which the trial court treated as a motion under Mississippi Rule of Civil Procedure 60(b). The trial court denied Cook's motion. Cook now appeals the trial court's order granting summary judgment and the trial court's order denying her Rule 60(b) motion.

¶2. After our review, we find Cook's appeal as to the trial court's order granting summary judgment in favor of NPN Properties was untimely filed. We therefore dismiss Cook's appeal with respect to that order. As to Cook's timely appeal of the trial court's order denying her Rule 60(b) motion, we find the trial court did not abuse its discretion in denying this motion.

FACTS

¶3. On the afternoon of May 3, 2007, Cook and several of her relatives arrived at the Comfort Inn in McComb. Cook testified that it began raining that evening, and a steady rain continued falling through the next morning. The next morning, May 4, 2007, Cook packed up her belongings to check out of the motel. After Cook and her relatives placed their belongings in their vehicle, they drove to the drive-through area under a canopy adjacent to the motel's lobby entrance so that Cook could return her room key. Cook testified that she exited the vehicle and took approximately four steps when "all of a sudden [her] feet went out from underneath [her]" and she fell. As a result of her fall, Cook suffered a broken ankle on her left leg, as well as other injuries to her left leg and the left side of her body. In her deposition, Cook admitted that she did not know what caused her to slip. Cook testified that the surface under the canopy was wet due to the rain and that as she fell, she caught a glimpse of some type of gloss on the surface of the asphalt. Cook testified that after she fell, the Comfort Inn general manager Rhonda Norton apologized to her and told Cook that other people had fallen in that same spot before, but no one had been injured as badly as Cook. Cook also testified that she did not see any "Wet Floor" warning signs placed in the lobby or under the canopy prior to her fall.

¶4. On April 22, 2010, Cook filed her complaint against NPN Properties, asserting claims of negligence and strict liability. In her complaint, Cook claimed that NPN Properties knew or should have known that the surface under the drive-through canopy was slippery when wet. Cook also claimed that NPN Properties knew or should have known that other business invitees of the Comfort Inn had also slipped and fallen on the surface under the drive-through canopy. Cook asserted that this alleged knowledge imposed a heightened duty upon NPN Properties to both adequately warn of any and all dangers of which NPN Properties knew or should have known and to continue to provide such warnings until NPN Properties could correct the slippery condition under the drive-through canopy.

¶5. During discovery, the parties deposed Norton and Monty Lipp, an independent contractor. During her deposition, Norton testified that after Cook fell, Cook told hotel staff that she had been rushing and should have been more careful. Norton also testified that the motel's maintenance man cleans the surface under the canopy every day around noon. Maintenance logs from the Comfort Inn confirm that the motel staff was required to "wash down sidewalks, staircases, breezeways[,] and under [the] canopy with soap and water at 12 noon daily."

¶6. Lipp testified that at least one year prior to the subject incident, NPN Properties hired him to apply a skid-resistant sealant to the asphalt in the drive-through area under the canopy.¹ Lipp testified that he mixed concrete sealant with an abrasive sand aggregate called "shark teeth" to give it an anti-skid surface and increase traction. Lipp testified that he added more "shark teeth" to the sealant than is normally used in his industry.² Lipp also testified that water would not have affected the skid-resistant properties of the surface under the canopy. However, he stated that if oil was present on the surface under the canopy, it might affect the skid-resistant properties of the sealant. Lipp testified that this particular coating of sealant has a life expectancy of approximately ten years.

¶7. On February 12, 2015, NPN Properties moved for summary judgment, asserting that Cook failed to show that any genuine issues of material fact existed; specifically, that Cook failed to establish that NPN Properties breached any duty it owed to her at the time of her injury.

¶8. The trial court held a summary judgment hearing. After the hearing, the trial court granted summary judgment in favor of NPN Properties. The trial court explained that a disagreement does not make a factual dispute for purposes of Mississippi Rule of Civil Procedure 56. The trial court also stated:

[T]he burden remains on the plaintiff to show that a dangerous condition existed and that the premises owner knew or should have known of a dangerous condition. And it's a higher burden than to show that there is some other way that it could have been done that might have been safer.

....

[A] mere fall and an allegation that other people have fallen, you're the first one that has gotten hurt this bad, that's simply not enough to avoid summary judgment in this case.

The trial court entered an order granting NPN Properties' summary judgment motion on March 23, 2015.

¶9. On April 2, 2015, Cook filed her a motion for additional time to file a motion for "reconsideration/rehearing," which the trial court granted on April 6, 2015. On April 9, 2015, Cook filed a second motion for additional time to file a motion for reconsideration/rehearing, which the trial court granted on April 16, 2015. On April 22, 2015, Cook filed her motion for reconsideration/rehearing.

¶10. NPN Properties filed its response to Cook's motion on May 7, 2015, and argued that a trial court is not permitted to extend the ten-day time period for filing a motion for reconsideration/rehearing. NPN Properties asserted as follows:

[T]he ten-day requirement within Rule 59(e) "is absolute, and the court is not permitted to extend this time period." Wilburn v. Wilburn , 991 So. 2d 1185, 1191 (Miss. 2008) ; see also [M.R.C.P.] 59 cmt. ("A motion for new trial or a motion to alter or amend the judgment made pursuant to M.R.C.P. 59 must be filed within 10 days after entry of the judgment. The trial court has no authority or discretion to extend the 10-day time period.")[.] Here, [Cook] did not file her motion within 10 days after the judgment was entered.

NPN Properties argued that as a result of Cook filing her motion outside of the ten-day time period, Cook's motion "can only be treated as one for relief from judgment pursuant to [Mississippi Rule of Civil Procedure] 60(b)."

¶11. On March 23, 2018, the trial court entered its order denying Cook's motion for reconsideration/rehearing. The trial court determined that Cook's motion should be considered as a Rule 60(b) motion and held as follows: "The motion should be considered as a [m]otion for [r]elief under Rule 60(b) and [Cook] is not entitled to relief from the [o]rder [g]ranting [s]ummary [judgment] because [Cook] has failed to demonstrate that she is entitled to relief under Rule 60(b)." The trial court further held that "[i]f the [c]ourt considers the request as a Rule 59 [m]otion the court finds that [Cook] is not entitled to relief because the [o]rder [g]ranting [s]ummary [judgment] was proper."

¶12. On April 19, 2018, Cook filed her notice of appeal in the trial court.

STANDARD OF REVIEW

¶13. When reviewing jurisdictional matters, this Court applies a de novo standard of review. Joshua Props. LLC v. D1 Sports Holdings LLC , 130 So. 3d 1089, 1092 (¶8) (Miss. 2014). However, this Court "will reverse the grant or denial of a Rule 60(b) motion only upon a showing of abuse of discretion." Doll v. BSL Inc. , 41 So. 3d 664, 669 (¶15) (Miss. 2010).

DISCUSSION

I. Order Granting Summary Judgment

¶14. We must first address the jurisdictional issue that NPN Properties raises in its appellate brief. NPN Properties asserts that Cook failed to file her notice of appeal within thirty days of the trial court's order granting summary judgment. NPN Properties argues that because Cook's motion for reconsideration/rehearing was not filed within ten days of the entry of the judgment, it cannot be considered as one of the post-trial motions that tolls the time for appeal under Mississippi Rule of Appellate Procedure 4(d).

¶15. Cook claims that if the trial court had not granted her requests for an extension of time to file her motion for reconsideration/rehearing, she would have filed her notice of appeal within thirty days of the trial court's order granting summary judgment. In her appellate brief, Cook submits that this Court should treat her April 22, 2015 motion for reconsideration/rehearing as a motion for relief from judgment pursuant to Rule 60(b). She asks this Court to grant her an opportunity to properly appeal this case under Rule 60(b)(3) (allowing for relief from a final judgment for "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)") and Rule 60(b)(6) (allowing for relief from a final judgment for "any other reason justifying relief from the judgment"). We recognize that a motion filed under Rule 60(b) "does not toll the thirty-day time period to file a notice of...