Hill v. London, Stetelman, and Kirkwood, Inc.

• Citation: 906 F.2d 204
• Decision Date: 24 July 1990
• Docket Number: No. 89-4534,89-4534
• Parties: Winston HILL and Ila Mae Hill, As Co-Administrators of the Estate of Harvey Hill, Deceased, Plaintiffs-Appellants, v. LONDON, STETELMAN, AND KIRKWOOD, INC., et al., Defendants-Appellees. Margaret Denmark FOSTER, As Administratrix of the Estate of Johnny Clark Carpenter, Deceased, Plaintiff-Appellant, v. LONDON, STETELMAN, AND KIRKWOOD, INC., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 204

906 F.2d 204

Winston HILL and Ila Mae Hill, As Co-Administrators of the Estate of Harvey Hill, Deceased, Plaintiffs-Appellants, v. LONDON, STETELMAN, AND KIRKWOOD, INC., et al., Defendants-Appellees.

Margaret Denmark FOSTER, As Administratrix of the Estate of Johnny Clark Carpenter, Deceased, Plaintiff-Appellant, v. LONDON, STETELMAN, AND KIRKWOOD, INC., et al., Defendants-Appellees.

No. 89-4534.

United States Court of Appeals, Fifth Circuit.

July 24, 1990.

Leonard B. Melvin, Jr., Billie B. Graham, Melvin & Melvin, Laurel, Miss., Halron W. Turner, Edward P. Turner, Turner, Onderdonk & Kimbrough, Chatom, Ala., for plaintiffs-appellants.

R.E. Parker, Jr., Gail S. Akin, Varner, Parker & Sessums, Vicksburg, Miss., Robert L. Rogers, Gillespie & Rogers, Hattiesburg, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Johnny C. Carpenter and Harvey E. Hill died of asphyxiation when a fire broke out in their Hattiesburg, Mississippi apartment in the early morning of February 20, 1983. The administrators of the respective estates filed this wrongful death action against the defendants, who are owners and managers of the apartment complex. The administrators appeal the grant of summary judgment to the defendants and contend that the district court erred by holding 1) that the Hattiesburg ordinance that requires the installation of a smoke detector in apartment buildings could be collaterally attacked by the defendants and was invalid for procedural reasons; 2) that the Hattiesburg ordinance that adopted the Southern Standard Building Code did not modify the common law doctrine of caveat emptor and, therefore, imposed no duty upon the defendants to install a smoke detector; and 3) that the absence of a smoke detector was not a latent defect imposing a duty to warn on the defendants. We hold that, under Mississippi law, the smoke detector ordinance may not be collaterally attacked and is valid for the purpose of this action. Therefore, we reverse without the necessity of addressing the remaining issues.

I

The Christina Townhouse Apartments is a 220-unit, multi-family apartment complex. It was constructed between August 1972 and June 1974 in Hattiesburg, Mississippi. The defendants purchased Christina in 1977 and were the sole owners and managers of the apartment complex at the time of the fire.

Between 12:00 a.m. and 2:30 a.m. on February 20, 1983, a fire stemming from a cigarette or cigarette ash broke out in the downstairs living room area of the apartment. Hill, who was occupying the rear upstairs bedroom, and Carpenter and Karen Greer, who were occupying the front upstairs bedroom, were overcome by smoke inhalation and died. The apartment was not equipped with a smoke detector.

On March 23, 1983, Margaret Denmark Foster, in her capacity as administratrix of the estate of Johnny Carpenter, filed a diversity wrongful death action against the defendants. Winston Hill and Ila Mae Hill, in their capacity as co-administrators of the estate of Harvey Hill, filed a similar action against the defendants on March 25, 1983. These two actions were later consolidated.

In their amended complaint, the plaintiffs alleged that the defendants were negligent in failing to maintain the apartment in a reasonably safe condition by not installing a smoke or fire detection device and by not providing windows of adequate dimensions to permit safe exit; that the defendants violated two city ordinances by failing to install a smoke or fire detection device and by failing to equip the apartment with windows of adequate dimensions; and that the defendants were negligent in failing to warn Carpenter and Hill concerning the absence of a smoke or fire detection device and the existence of inadequate windows.

On February 26, 1986, the plaintiffs filed a motion for partial summary judgment asserting that the defendants' failure to equip the apartment with an approved listed smoke detector, as required by Sec. 18.206 of the 1979 Standard Fire Prevention Code (Fire Code), ¹ as adopted by City of Hattiesburg ordinance 2021, constituted negligence per se. The defendants filed a cross-motion for partial summary judgment arguing that ordinance 2021 was invalid because it was enacted in violation of the procedural requirements of MISS. CODE ANN. Secs. 21-13-5 ² and 21-19-25. ³ Specifically they alleged that ordinance 2021 was not read aloud or considered section by section as required by Sec. 21-13-5; that the Fire Code was not printed or typed or reduced to pamphlet form, as required by Sec. 21-19-25; that the Fire Code was not filed or maintained in the City of Hattiesburg Clerk's office, as required by Sec. 21-19-25; and that the Fire Code was not certified to by the clerk of the City of Hattiesburg, as required by Sec. 21-19-25. Therefore, they argued that they had no legal duty to install a smoke detector in the apartment.

The district court held an evidentiary hearing on the motions on April 18, 1986. On December 2, 1988, the court entered an order granting the defendants' motion and denying the plaintiffs' motion for partial summary judgment. The court held that, under Mississippi law, ordinance 2021 could be collaterally attacked and was invalid for the reasons asserted by the defendants.

On December 13, 1988, the defendants made an oral motion to dismiss the plaintiffs' complaint on the ground that it failed to state a claim upon which relief could be granted. On December 16, 1988, the district court entered an order converting the defendants' motion to dismiss to a motion for summary judgment and directed the parties to file materials in support of and in opposition to this motion. On June 16, 1989, the district court entered an order granting the defendants' motion for summary judgment. The court held that, under the prevailing common law, the defendants had no duty to install a smoke detector; nor were they required to warn Hill and Carpenter of the absence of a smoke detector and windows of inadequate dimensions because these were not latent defects. ⁴ The court entered a final judgment for the defendants on June 16, 1989, and the plaintiffs timely appealed.

II

We review the district court's grant of summary judgment de novo to determine whether there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. As the case comes to us, there are no disputes of fact, only issues of law. Because this is a diversity case, Mississippi law controls.

A

We turn first to the question of whether, under Mississippi law, ordinance 2021 may be collaterally attacked. We have not found, nor have any of the parties suggested, any decision in which the Mississippi Supreme Court has addressed whether a municipal ordinance may be collaterally attacked. We must therefore make an "Erie guess" as to how that court would decide this issue. Jackson v. Johns-Manville Sales Corp, 781 F.2d 394, 397 (5th Cir.1986). To assist our effort, we may refer to 1) lower state court decisions and Supreme Court dicta, 2) the lower court ruling in this case, 3) the general rule on the issue, 4) the rules in other states looked to by Mississippi courts when they formulate the substantive law of Mississippi, and 5) other available legal sources, such as treatises and law review commentaries. Id. We note further that, absent evidence to the contrary, we may presume that the Mississippi courts would adopt the prevailing rule if called upon to do so. Id. at 398.

Our analysis of the Jackson factors convinces us that Mississippi would preclude a collateral attack against ordinance 2021 under the circumstances of this case. First, the parties have not identified, nor have we found, lower state court opinions ⁵ or Mississippi Supreme Court dicta addressing this issue. Although the district court held that ordinance 2021 could be collaterally attacked, the cases cited by the district court in support of its holding do not involve collateral attacks and are, therefore, inapposite. ⁶

The general rule, however, is that "[t]he validity or constitutionality of an ordinance usually can be attacked only directly and not collaterally. Its passage is a legislative act, and public policy forbids that it should be impeached otherwise than in a direct proceeding." 6 E. McQuillin, The Law of Municipal Corporations Sec. 20.14 (3d Ed.Rev.1989). The rule has its purpose in the right generally to presume the regularity of official acts of a municipality and in due process--that is, the municipality must "be afforded an opportunity of being heard in defense of its action in the passing of the ordinance," Bors v. Davis, 6 N.J. Misc. 793, 142 A. 760, 761 (1928). The rule is followed by most states. See e.g., Bors v. Davis, 6 N.J.Misc. 793, 142 A. 760 (1928); Board of Commissioners of State Institutions v. Tallahassee Bank & Trust Co., 100 So.2d 67, 69 (Fla.Dist.Ct.App.1958); Hull v. Detroit Equipment Installation, Inc., 12 Mich.App. 532, 163 N.W.2d 271, 272-273 (1968); Nebraska Department of Motor Vehicles v. Lessert, 188 Neb. 243, 196 N.W.2d 166, 169 (1972); Business Ventures, Inc. v. Iowa City, 234 N.W.2d 376, 380 (Iowa 1975); Forest Preserve District of Dupage County v. Kelley, 69 Ill.App.3d 309, 25 Ill.Dec. 712, 387 N.E.2d 368, 372 (1979); City of Willow Park v. Bryant, 763 S.W.2d 506, 508 (Tx.Civ.App.1988). An ordinance may be collaterally attacked, however, where it is void "in the sense that the city had no constitutional, statutory, or charter authority to enact it." 6 E. McQuillin, Sec. 20.14.

We conclude that the Mississippi Supreme Court would follow the general rule that a municipal ordinance may not be collaterally attacked. First, the Mississippi Supreme Court has adopted a related proposition: in a collateral action "minutes of a municipality...