Garretson v. Miss. Dep't of Transp.
| Decision Date | 20 November 2014 |
| Docket Number | No. 2013–CA–01511–SCT.,2013–CA–01511–SCT. |
| Citation | 156 So.3d 241 |
| Court | Mississippi Supreme Court |
| Parties | O.R. GARRETSON, and Wife, Carolyn C. Garretson, Harry F. Garretson and Wife, Jean H. Garretson v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION. |
A. Malcolm N. Murphy, Lucedale, attorney for appellants.
Jack H. Pittman, Christopher M. Howdeshell, Hattiesburg, attorneys for appellee.
Before WALLER, C.J., LAMAR and COLEMAN, JJ.
LAMAR, Justice, for the Court:
¶ 1. The Mississippi Transportation Commission (“MTC”) procured some land from the Garretsons via eminent domain to construct a bypass in Greene County. The Garretsons later filed a complaint against the Mississippi Department of Transportation (“MDOT”), alleging that the bypass construction had caused silt to flood onto their remaining land, damaging their timber. MDOT filed a motion for summary judgment and argued that it was immune under Mississippi Code Section 11–46–9(1), subsections (d) (discretionary-function immunity) and (p) (design immunity). We agree that MDOT is immune from liability under subsection (p) and affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. MTC filed a complaint to condemn some of the Garretsons' land, and the Greene County Special Court of Eminent Domain held a hearing on MTC's complaint. The jury awarded the Garretsons $50,000 as just compensation for their land, and the trial judge filed the judgment on March 11, 2004.
¶ 3. The Garretsons subsequently served a Notice of Claim on “MDOT and/or MTC.”1 In their notice, the Garretsons alerted MTC and MDOT that they planned to bring a claim for “damages as a result of silt flooding that has occurred to their land adjacent to the North side of the new overpass that has been constructed over the existing State Highway No. 63.” The Garretsons further alleged that MDOT “ha[d] trespassed upon [their land] and has and is causing damage.”
¶ 4. The Garretsons listed the date of loss as “May 20, 2004 and continuing.” The Garretsons alleged it was on that date that it:
became apparent ... that the silt fence and other structures erected by MDOT were possibly going to be ineffective and that silt was going to flood their property and cause damage to the standing timber. It also became apparent that the entire drainage of “Cemetery Hill” had been changed so that by various drain structures the drainage had been shifted to one collection point adjacent to [the Garretsons'] land for the entire hill lying East of present State Highway No. 63. As a result of the change of the natural drainage silt has flooded the lands of the Garretsons and has killed, deadened, damaged and destroyed the standing timber, young timber and other timber of value to the Garretsons. The silt flooding is continuing and the damage to the land is continuing as well as the damage to the timber.
The Garretsons alleged that, as a result of MDOT's actions, they had had to seek the services of a forester and an attorney and had to pay reforestation expenses. The Garretsons described MDOT's actions as “deliberate,” “callous,” and “totally indifferent” and stated that they were entitled to recover for mental distress. The Garretsons concluded by stating that they had “suffered substantial compensable damages due to the [tortious] acts of MDOT and/or MTC,” and that they sought damages not exceeding the policy limits of any liability policies in effect, or $500,000 each, whichever was greater.
¶ 5. The Garretsons followed up their notice with their complaint against MDOT on August 1, 2005. Their complaint reiterated the claims in their notice. In sum, the Garretsons alleged that:
The Garretsons asked for (1) a permanent injunction to prevent the silt flooding; (2) a judgment for “all damages permitted by Section 95–5–10,”2 including expert-witness fees, attorneys' fees, and costs; (3) a judgment for the damaged and destroyed timber in the amount of $55,051; and (4) a judgment of $500,000 for “the anger, outrage and mental upset” suffered as a result of MDOT's “deliberate, callous and indifferent” actions. MDOT answered the Garretsons' complaint, and the parties engaged in written discovery.
¶ 6. MDOT filed a Motion for Summary Judgment and argued that it was exempt from liability for “suits of this type” under Mississippi Code Section 11–46–9(1), subsections (d) and (p). MDOT attached three exhibits to its motion: (1) an itemization of undisputed facts; (2) an affidavit from MDOT Roadway Design Division Engineer C. Keith Purvis; and (3) the judgment from the Greene County Special Court of Eminent Domain.3
¶ 7. More than four years later, the Garretsons responded to MDOT's motion. The Garretsons disputed MDOT's first statement of undisputed fact and stated that “the road construction was NEW construction and was not Reconstruction and/or widened.” The Garretsons also took issue with MDOT's failure to attach the statement of values from the eminent domain action, in which it was stated that the “damage to the remainder [of the property] is $0.00.” The Garretsons attached the statement of values as Exhibit 1 to their Response.
¶ 8. The Garretsons' response to MDOT's argument that it was immune under Section 11–46–9(1), subsections (d) and (p), is hard to follow:
[T]he [Plaintiffs] deny that the Mississippi Department of Transportation is entitled to immunity under § 11–46–9(d)(p) in that this is not a tort claim action. At commencement of this cause of action, which is an ongoing cause of action, the [Plaintiffs] did make allegations of Tort Claim [sic], but also made allegations of “Negligence,” “Trespass” and a request for “Injunction.”
The Garretsons argued further that McLemore v. Mississippi Transportation Commission, 992 So.2d 1107 (Miss.2008), supported their position that they could maintain their claims.
¶ 9. The Garretsons also objected to C. Keith Purvis's affidavit because it failed to state that the highway design was “in conformity” [with current engineering or design standards]; rather, it used the word “indicating” that the plans were in conformity. The Garretsons attached to their response an affidavit from O.R. Garretson to “dispute” Purvis's affidavit. Finally, the Garretsons asserted that “the negligence of permitting the silt flooding and trespass is a separate cause of action all of which occurred after the taking which is prohibited by Article 3, Section 17 of the Mississippi Constitution.”
¶ 10. The trial judge held a hearing on MDOT's motion, and he entered an order granting the motion one week later. The order does not detail the trial judge's reasoning, but it does state that he “specifically [found] that the Defendant ... [was] entitled to immunity under Mississippi Code Annotated 11–46–9(1)(d) and (p).”
¶ 11. The Garretsons now appeal to this Court, arguing:
¶ 12. For clarity, we restate the issues as: (1) whether the circuit judge correctly granted summary judgment to MDOT; and (2) whether Article 3, Section 17 of the Constitution provides the Garretsons any relief.
STANDARD OF REVIEW
¶ 13. This Court conducts a de novo review when deciding whether the trial court properly granted a motion for summary judgment. Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002). And the application of the Mississippi Tort Claims Act (“MTCA”) is a question of law that is also reviewed de novo. Little v. Mississippi Dep't of Transp., 129 So.3d 132, 135 (Miss.2013).
ANALYSIS
¶ 14. As mentioned above, the trial judge specifically found in his order granting summary judgment that MDOT was entitled to immunity under Mississippi Code Section 11–46–9(1), subsections (d) and (p). We agree with the trial court and find that MDOT is immune under Section 11–46–9(1)(p). Because we find immunity under subsection (p), we find it unnecessary to address MDOT's immunity under subsection (d). See, e.g., Fortenberry v. City of Jackson, 71 So.3d 1196, 1204 (Miss.2011) () (emphasis added).
¶ 15. The trial judge found that MDOT was immune under Mississippi Code Section 11–46–9(1)(p), which states:
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