Hinds County v. Perkins

• Decision Date: 30 June 2011
• Docket Number: No. 2010–CA–00929–SCT.,2010–CA–00929–SCT.
• Citation: 64 So.3d 982
• Parties: HINDS COUNTY, Mississippi, and Sheriff Malcolm McMillin, in his official Capacityv.Vern PERKINS, Individually, and as Representative of the heirs at Law and Wrongful Death Beneficiaries of Saun Keith Perkins–Wilford, Deceased.
• Court: Mississippi Supreme Court

64 So.3d 982

HINDS COUNTY, Mississippi, and Sheriff Malcolm McMillin, in his official Capacity

v.Vern PERKINS, Individually, and as Representative of the heirs at Law and Wrongful Death Beneficiaries of Saun Keith Perkins–Wilford, Deceased.

No. 2010–CA–00929–SCT.

Supreme Court of Mississippi.

June 30, 2011.

Michelle Tolle High, J. Lawson Hester, Ridgeland, attorneys for appellants.James Lee Kelly, Brandon, attorney for appellee.EN BANC.KITCHENS, Justice, for the Court:

¶ 1. In this wrongful death case, a prisoner escaped from the custody of the Hinds County sheriff, and, while evading capture, the escapee struck a pedestrian with a stolen vehicle. The pedestrian died, and a wrongful death suit was filed against the County. The trial court denied the County's motion for summary judgment based on its claim of sovereign immunity, and the County appealed. Finding no right to appeal a pretrial denial of sovereign immunity, we dismiss the appeal because of its interlocutory nature.

Facts and Procedural History

¶ 2. According to the complaint, on July 14, 2005, Inmate Travis Smith escaped from the custody of the Hinds County Sheriff's Department. While on the run, Smith obtained an automobile and, as he was driving, struck a pedestrian, Saun Keith Perkins–Wilford. Smith fled the scene of the accident, and Perkins–Wilford died of his injuries.

¶ 3. Vern Perkins, individually and as the representative of the decedent's wrongful death beneficiaries, filed suit against the Hinds County Sheriff, in his official capacity, and the Hinds County Board of Supervisors (collectively, “Hinds County”). Perkins alleged that the County was liable for Perkins–Wilford's death because it had “failed to use ordinary care in the exercise of its non-discretionary duty to confine [Smith] and prevent his escape.” The complaint also alleged that “any and all actions or omissions on the part of ‘police employees' relating to the events herein complained of, were in reckless disregard of the safety and well-being of Plaintiff's decedent.”

¶ 4. Hinds County filed a motion to dismiss and/or for summary judgment, arguing that it was immune from liability under the Mississippi Tort Claims Act (MTCA), Mississippi Code Section 11–46–9 (Supp.2010). Perkins filed a response, attaching Smith's arrest record, a deposition transcript of the deputy sheriff who had been guarding Smith the day of his escape, the accident report, and the transcript of Smith's guilty pleas to felony escape and leaving the scene of an accident. It is not clear from the record whether there was a hearing; but on April 20, 2010, the circuit judge summarily denied the County's motion, stating in its order that “there are genuine issues of material fact to be resolved in this matter.”

¶ 5. Hinds County filed its notice of appeal on May 19, 2010, within the time for filing a direct appeal, but outside the time for filing a petition for interlocutory appeal. Although the denial of its motion to dismiss and/or for summary judgment was an interlocutory order, the County alleged in its notice of appeal that a denial of sovereign immunity should be automatically appealable. The plaintiff did not file with this Court a motion to dismiss the appeal. Instead, Perkins argues in his reply brief that this Court should dismiss the appeal and award attorney's fees.

Discussion

¶ 6. We are asked to determine whether denials of motions for summary judgment based on claims of sovereign immunity are directly appealable despite their interlocutory nature. Questions of jurisdiction are questions of law, reviewed de novo. RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (Miss.2007) (citing Trustmark Nat'l Bank v. Johnson, 865 So.2d 1148, 1150 (Miss.2004)).

¶ 7. The parties do not dispute that the denial of a motion for summary judgment is an interlocutory order or that the only means of seeking appellate review of an interlocutory order is by filing a petition with this Court under Rule 5 of the Mississippi Rules of Appellate Procedure. That rule provides, in relevant part:

(a) Petition for Permission to Appeal. An appeal from an interlocutory order may be sought if a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:

(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or

(2) Protect a party from substantial and irreparable injury; or

(3) Resolve an issue of general importance in the administration of justice.

Appeal from such an order may be sought by filing a petition for permission to appeal with the clerk of the Supreme Court within 21 days after the entry of such order in the trial court with proof of service on the trial judge and all other parties to the action in the trial court.

M.R.A.P. 5(a). See also M.R.C.P. 54(b) (providing that a judgment is not final, and therefore not appealable, if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties”).

¶ 8. Hinds County did not file a petition for interlocutory appeal within 21 days of the circuit court's denial of its motion for summary judgment. Instead, the County filed a notice of appeal pursuant to Rule 4 of the Mississippi Rules of Appellate Procedure, which governs appeals as of right. The County argues that we should adopt the federal approach, which allows appeals as of right from orders denying qualified or absolute immunity to the extent they are based on questions of law.

¶ 9. Federal courts of appeal have jurisdiction over “final decisions” of district courts. 28 U.S.C. § 1291 (2006). Thus, the courts of appeal may entertain interlocutory review of district court decisions in limited circumstances, that is, when a collateral order is tantamount to a “final decision.” Johnson v. Jones, 515 U.S. 304, 310, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); 28 U.S.C. § 1291) (2006). In determining whether a collateral order amounts to a final decision which qualifies for immediate appeal, the order must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Johnson, 515 U.S. at 310, 115 S.Ct. 2151 (quoting Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (brackets in original)).

¶ 10. The Supreme Court has applied this “collateral order doctrine” to hold that federal courts of appeal have jurisdiction to review denials of immunity with respect to public officials, sued in their individual capacities under federal law, as long as that determination turns on a matter of law. Mitchell v. Forsyth, 472 U.S. 511, 526–30, 105 S.Ct. 2806, 2815–16, 86 L.Ed.2d 411 (1985). In Forsyth, 472 U.S. at 525–27, 105 S.Ct. 2806, the Supreme Court held that the denial of immunity to a public official, whether qualified or absolute, was “effectively unreviewable” after trial because immunity contemplates protection not simply from liability, but also from standing trial. The Court likened a denial of immunity to a denial of a criminal defendant's right not to stand trial on double jeopardy grounds:

A major characteristic of the denial or granting of a claim appealable under Cohen's “collateral order” doctrine is that “unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.” Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 1 [3] (1952) [ (1951) ] (opinion of Jackson, J.); see also United States v. Hollywood Motor Car Co., 458 U.S. 263, 266, 102 S.Ct. 3081, 3083, 73 L.Ed.2d 754 (1982). When a district court has denied a defendant's claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court's decision appealable, for such a right cannot be effectively vindicated after the trial has occurred. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Thus, the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); cf. Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).

Id. at 525, 105 S.Ct. 2806. However, not every claim to governmental immunity qualifies as immunity from suit. The United States Supreme Court has cautioned that “[Section] 1291 requires courts of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye, for virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Swint v. Chambers County Comm'n, 514 U.S. 35, 43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)).

¶ 11. The County's argument, that immunity under the MTCA shields the governmental entity from having to defend itself in court proceedings, relies largely on the following language from Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (Miss.2003):

The Mississippi Legislature has determined that governmental entities and their employees shall be exempt from liability in certain situations as outlined in [Mississippi Code Section] 11–46–9. This exemption, like that of qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense to liability and, therefore, should be resolved at the earliest possible stage of litigation. Cf. Saucier v. Katz, 533 U.S. 194, 200–01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Therefore, immunity is a question of law and is...