Fortune v. Lee County Bd. of Sup'rs, 94-CA-00102-SCT.

• Decision Date: 23 April 1998
• Docket Number: No. 94-CA-00102-SCT.,94-CA-00102-SCT.
• Citation: 725 So.2d 747
• Parties: Margie Gail FORTUNE as Wrongful Death Beneficiary of Steven Lynn Fortune v. LEE COUNTY BOARD OF SUPERVISORS.
• Court: Mississippi Supreme Court

725 So.2d 747

Margie Gail FORTUNE as Wrongful Death Beneficiary of Steven Lynn Fortune v. LEE COUNTY BOARD OF SUPERVISORS.

No. 94-CA-00102-SCT.

Supreme Court of Mississippi.

April 23, 1998.

Opinion Concurring on Denial of Rehearing July 2, 1998.

Karla Pierce, Dale Hubbard, Hubbard, Pierce & Baria, Jackson, Charles M. Merkel, Jr., John Cocke, Jack R. Dodson, Merkel & Cocke, Clarksdale, for Appellant.

William M. Beasley, Mitchell, Voge, Beasley & Corban, Tupelo, Leslie William Smith, Biloxi, for Appellee.

En Banc.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. Maggie Fortune's husband, Steven Fortune, and their two young children, Stephanie and Steven Matthew, were killed on December 11, 1989, when the vehicle in which they were riding fell from a bridge without guardrails on County Road 681 in Saltillo, Mississippi. Mrs. Fortune filed suit against the Lee County Board of Supervisors and the XYZ Construction Company on December 27, 1989, alleging that the Board of Supervisors was negligent in failing to properly inspect, repair, erect and maintain guardrails on the bridge in question and in failing to warn of the bridge's hazards. The circuit court denied the County's motion to dismiss, finding that the Board of Supervisors did not enjoy the benefit of sovereign immunity that it claimed.

¶ 2. In its opinion denying the Board of Supervisor's motion to dismiss, the circuit court found that if the Board violated the duty placed on it by Miss.Code Ann. § 65-21-1, governing the design and construction of bridges on public roads, it was not shielded from liability by sovereign immunity. Lee County Bd. of Supervisors v. Fortune, 611 So.2d 927, 928 (Miss.1992)(hereinafter Fortune I). This Court granted the Board's request for an interlocutory appeal on the question of its liability for negligence in the construction and/or maintenance of a bridge on a county road. (Fortune I, 611 So.2d at 928).

¶ 3. While that case was pending, the sovereign immunity statute, Miss.Code Ann. § 11-46-6 (1986), was found to be unconstitutional (but only prospectively) in Presley v. Mississippi State Highway Commission, 608 So.2d 1288 (Miss.1992). In Fortune I, this Court affirmed the circuit court's denial of the Board's motion to dismiss, but declined to address the issues raised by the parties, stating:

We need not decide these issues. As we did in Presley, the proper course is to remand this case for further proceedings in light of our holding there. We therefore affirm the order of the circuit court denying defendants' motion to dismiss and remand this case to that court for further proceedings.

Fortune I, 611 So.2d at 930.

¶ 4. On remand, the Board filed a motion for summary judgment on November 17, 1993, asserting that Mrs. Fortune's claims were barred by the 1993 amendments to the State Tort Claims Act and arguing that Presley was inapplicable because the cause of action arose prior to the August, 1992 decision. The circuit court found, as a matter of law, that Fortune's claims were barred by Miss.Code Ann. § 11-46-1, et seq., as amended effective April 1, 1993, and granted the Board's motion for summary judgment on January 4, 1994. Fortune timely appealed to this Court.

ARGUMENTS AND DISCUSSION OF THE LAW

I. WHETHER THE AMENDED SOVEREIGN IMMUNITY STATUTE IS APPLICABLE TO THE CAUSE OF ACTION

A. WHETHER THE INTERLOCUTORY ORDER OF THE MISSISSIPPI SUPREME COURT IS A "FINAL JUDGMENT" WITHIN THE MEANING OF § 11-46-3(2)

¶ 5. The circuit court granted the Board of Supervisors' motion for summary judgment on grounds that suit against it was barred by the revised sovereign immunity statute. Miss.Code Ann. § 11-46-3 (Supp. 1997), as amended effective April 1, 1993, provides for the immunity of the state and its subdivisions as follows:

(1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the "state" and its "political subdivisions," as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

(2) The immunity of the state and its political subdivisions recognized and reenacted herein is and always has been the law in this state, before and after November 10, 1982, and before and after July 1, 1984, and is and has been in full force and effect in this state except only in the case of rights which, prior to the date of final passage hereof, have become vested by final judgment of a court of competent jurisdiction or by the express terms of any written contract or other instrument in writing.

Fortune contends that this Court's decision in Fortune I is a "final judgment" pursuant to § 11-46-3(2), making the revised statute inapplicable. The Board, on the other hand, argues that a decision in an interlocutory appeal is not a "final judgment" as contemplated by the statute.

A final judgment puts an end to the action, and disposes of the entire controversy, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. A final decision generally is one which ends the litigation on the merits, and leaves nothing for the court to do but execute the judgment.... An interlocutory judgment, on the other hand, leaves for future determination an equity of the case, or some material question connected with it. A judgment is interlocutory, as opposed to final, only when something further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties. Accordingly, where further action of the court is necessary to give a complete adjudication upon the merits, the judgment under which the further question arises is to be regarded, not as final, but as interlocutory.

46 Am.Jur.2d Judgments § 202 (1994). The decision in Fortune I, an interlocutory appeal, remanded the case to circuit court for further proceedings and thus, was not a final judgment either by definition or as contemplated by the statute. This point of error is without merit.

B. WHETHER THE INTERLOCUTORY ORDER OF DECEMBER 31, 1992 CONSTITUTES THE LAW OF THE CASE WHICH THE LOWER COURT WAS BOUND TO FOLLOW.

¶ 6. In the alternative, Mrs. Fortune asserts that under the "law of the case" doctrine, the trial court was bound to follow this Court's ruling in Fortune I. This Court has explained the law of the case doctrine as follows:

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.

Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1376 (Miss.1990)(quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So.2d 557, 558 (1961)). "But if the facts are different, so that the principles of law announced on the first appeal are not applicable, as where there are material changes in the evidence, pleadings, or findings, a prior decision is not conclusive upon questions presented on the subsequent appeal." Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 480, 142 So.2d 200, 207 (1962) (quoting 3 Am. Jr., Appeal and Error, Sec. 985, p. 541).

¶ 7. In the view of this Court, it is of no consequence to Fortune whether or not the law of the case doctrine applies to the present case, given that this Court in Fortune I merely remanded for proceedings consistent with Presley. The cause of action in the present case arose in 1989, and this Court's 1992 decision in Presley, declaring § 11-46-6 to be unconstitutional, is prospective only. This Court held in Robinson v. Stewart, 655 So.2d 866 (Miss.1995) that:

What observers should note is our consistency in refusing to apply Presley retroactively, as opposed to the means in which we achieved our end. What we have stated indirectly we now say directly. Presley has no retroactive application.

Robinson, 655 So.2d at 868¹. Thus, contrary to Fortune's arguments, Presley favors the position of the Board in the present case, and sovereign immunity applies to the present case through an application of § 11-46-6. See Hord v. City of Yazoo City, 702 So.2d 121 (Miss.1997). This point of error is without merit.

C. WHETHER THE AMENDED SOVEREIGN IMMUNITY STATUTE EXTENDS IMMUNITY TO ACTS OF A POLITICAL SUBDIVISION WHICH ARE ARBITRARY AND CAPRICIOUS

¶ 8. Fortune next asserts that the sovereign immunity statute, as amended, does not extend immunity to a political subdivision when its acts are arbitrary and capricious. Fortune relies on Coplin v. Francis, 631...