Jackson v. City of Booneville, 1998-CA-01258-SCT.

• Citation: 738 So.2d 1241
• Decision Date: 20 May 1999
• Docket Number: No. 1998-CA-01258-SCT.,1998-CA-01258-SCT.
• Parties: Glenna F. JACKSON v. CITY OF BOONEVILLE, Mayor Wade Lambert, The Board of Aldermen, Charles Calvert, Joe Eaton, Wade Oaks, David Bolen and Mitch Barrett.
• Court: United States State Supreme Court of Mississippi

738 So.2d 1241

Glenna F. JACKSON v. CITY OF BOONEVILLE, Mayor Wade Lambert, The Board of Aldermen, Charles Calvert, Joe Eaton, Wade Oaks, David Bolen and Mitch Barrett.

No. 1998-CA-01258-SCT.

Supreme Court of Mississippi.

May 20, 1999.

Greg E. Beard, Booneville, Attorney for Appellant.

Wilton V. Byars, III, Oxford, J. Keith Pearson, Greenville, Attorneys for Appellee.

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On November 26, 1996, Appellant Glenna F. Jackson paid her gas and water bill at 200 North College Street, Booneville, Prentiss County, Mississippi, the City of Booneville's place of business. While returning to her car in the city parking lot, Jackson slipped and fell on some loose gravel.

¶ 2. On April 2, 1997, Jackson filed her Complaint against the Appellees, City of Booneville, Mississippi, its Mayor and Board of Aldermen (hereinafter together as the "City Defendants"), alleging negligence. On April 17, 1997, process was served on the Mayor of Booneville and the Board of Aldermen. On April 23, 1997, the City Defendants filed their Answer asserting the affirmative defense of failure to comply with Miss.Code Ann. § 11-46-11 (Supp.1998).

¶ 3. On March 30, 1998, the City Defendants filed a Motion for Summary Judgment asserting Jackson's failure to comply with Miss.Code Ann. § 11-46-11. Jackson filed a Response to that motion on April 13, 1998. A hearing was held before the Circuit Court of Prentiss County, Mississippi, the Honorable Barry W. Ford presiding, on July 1, 1998, at which time the court ruled that it would grant the City Defendants' Motion for Summary Judgment. On July 29, 1998, the court entered its Findings of Fact and Conclusions of Law and also entered the Order Granting the City Defendants' motion.

¶ 4. Aggrieved, Jackson timely appealed to this Court asserting the following contentions:

I. WHETHER JACKSON, IN REGARDS TO HER CLAIM AGAINST A MUNICIPALITY, COMPLIED WITH MISS. CODE ANN. § 11-46-11, WHEN THE MAYOR HAD BEEN PERSONALLY SERVED WITH THE NOTICE OF CLAIM AND THE COMPLAINT, BUT DID NOT OBJECT TO THE CONTENTS OF THE NOTICE UNTIL THE STATUTE OF LIMITATIONS HAD EXPIRED.

II. WHETHER THE CITY OF BOONEVILLE WAIVED ITS RIGHT TO OBJECT TO JACKSON'S IMPROPER NOTICE OF CLAIM.

III. WHETHER JACKSON TIMELY FILED AND PERFECTED HER CLAIM AGAINST THE CITY OF BOONEVILLE, WHEN THE ACCIDENT OCCURRED ON NOVEMBER 26, 1996, JACKSON FILED HER COMPLAINT ON APRIL 2, 1997, THE CITY OF BOONEVILLE FILED ITS ANSWER ON APRIL 23, 1997, AND JACKSON HAND DELIVERED A NOTICE OF CLAIM TO THE MAYOR OF THE CITY OF BOONEVILLE ON NOVEMBER 12, 1997.

STANDARD OF REVIEW

¶ 5. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the nonmoving party must establish a genuine issue of material fact by means allowable under the rule. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).

¶ 6. This Court employs a de novo standard in reviewing a lower court's grant of summary judgment. Mississippi Ethics Comm'n v. Aseme, 583 So.2d 955, 957 (Miss.1991); Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 438 (Miss.1989). Evidentiary matters are viewed in the light most favorable to the nonmoving party. Palmer v. Biloxi Regional Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).

LEGAL ANALYSIS

I. WHETHER JACKSON, IN REGARDS TO HER CLAIM AGAINST A MUNICIPALITY, COMPLIED WITH MISS. CODE ANN. § 11-46-11, WHEN THE MAYOR HAD BEEN PERSONALLY SERVED WITH THE NOTICE OF CLAIM AND THE COMPLAINT, BUT DID NOT OBJECT TO THE CONTENTS OF THE NOTICE UNTIL THE STATUTE OF LIMITATIONS HAD EXPIRED.

and

II. WHETHER THE CITY OF BOONEVILLE WAIVED ITS

RIGHT TO OBJECT TO JACKSON'S IMPROPER NOTICE OF CLAIM.

and

III. WHETHER JACKSON TIMELY FILED AND PERFECTED HER CLAIM AGAINST THE CITY OF BOONEVILLE, WHEN THE ACCIDENT OCCURRED ON NOVEMBER 26, 1996, JACKSON FILED HER COMPLAINT ON APRIL 2, 1997, THE CITY OF BOONEVILLE FIELD ITS ANSWER ON APRIL 23, 1997, AND JACKSON HAND DELIVERED A NOTICE OF CLAIM TO THE MAYOR OF THE CITY OF BOONEVILLE ON NOVEMBER 12, 1997.

¶ 7. In effect, all of Jackson's contentions of error argue substantial compliance with the notice of claim requirements of Miss.Code Ann. § 11-46-11 (Supp. 1998).¹ In contrast, the City rests upon the case of City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997) (holding strict compliance is the standard for Section 11-46-11).

¶ 8. It is uncontested that these statutory requirements for notice were not strictly complied with in this case. In fact, Jackson filed a Notice of Claim on November 12, 1997, in an obvious effort to cure any problem with Section 11-46-11. See Miss.Code Ann. § 11-46-11(1) and (2) (Supp.1998).² Thus, under Lumpkin, the trial court held that the City's Motion for Summary Judgment should be granted, because of Jackson's failure to comply strictly with the notice of claim requirements.

¶ 9. In fact, the trial court's opinion specifically cites Lumpkin as the basis of its grant of the summary judgment motion. However, since the trial court's order and the submission of the parties' briefs, this Court has overruled the Lumpkin rule of strict compliance. Reaves v. Randall, 729 So.2d 1237 (Miss.1998); Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). In Reaves, this Court held, as follows:

The purpose of the Act is to insure that governmental boards, commissioners, and agencies are informed of claims against them. Such notice encourages entities to take corrective action as soon as possible when necessary; encourages pre-litigation settlement of claims; and encourages more responsibility by these agencies.

* * *

In order to carry out the legislative purpose of providing relief to injured citizens, we hold that substantial compliance with the notice provisions of the Act is sufficient.

Id. at 1240.

¶ 10. In Carr, this Court stated, as follows:

Even though this Court now finds substantial compliance to be sufficient, we stress that substantial compliance is not the same as, nor a substitute for, non-compliance. The determination of substantial compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad hoc basis.

Carr, 733 So.2d at 265.

¶ 11. The ultimate question is then whether Jackson substantially complied with the notice of claim requirements in accord with this Court's recent announcement in Reaves and Carr. In Reaves, the appellant counsel's letter of representation sufficed to meet the ninety (90) day notice of claim requirement, as follows:

On February 27, 1996, counsel for the appellant sent a letter to Dr. C.L. Stevenson, Superintendent of the Greenwood Municipal Separate School System, which read:

I have been retained by Rebecca Lou Rouse to represent her daughter, Ashley Renee Reaves, with regard to injuries and damages arising and growing out of a bicycle/motor vehicle accident which occurred on 2/18/96 at approximately 1:30 p.m. on the grounds of Davis School. It would be greatly appreciated if you would have your insurance carrier contact me regarding adjustment of this claim. /s/ Preston Davis Rideout, Jr.

On April 15, 1996, the appellant received a letter from the claims adjuster, Stuart Chisolm, for Gallagher Bassett Services, Inc., on behalf of the Greenwood Municipal Separate School District. The adjuster requested an interview with the appellant. An interview was conducted on May 15, 1996, in which Chisolm had the opportunity to interview Reaves and Rouse. Through counsel on September 27, 1996, Reaves also answered interrogatories propounded by the school district. In preparation for trial, the depositions of several witnesses were taken including Reaves, Rouse, and Lancaster.

Reaves, 729 So.2d at 1238 (emphasis added). Before any trial, the lower court granted summary judgment for failure to comply with the notice of claim requirements. Id.

¶ 12. In reversing the summary judgment, this Court carved out a substantial compliance exception to the Act, as follows:

[W]e find that Reaves substantially complied with the notice provisions of the Act. Her notice letter, sent to Superintendent Stevenson, lists the persons involved in the accident, when the accident occurred, where the accident occurred, and what vehicles were involved. Superintendent Stevenson is employed in an executive capacity by the school board and through this letter the board was put on notice of the claim. The board had a duty to inquire into the details of the claim.

Id., 729 So.2d at 1240.

¶ 13. In Carr, the facts state, in pertinent part, as follows:

Carr was injured when she slipped and fell on a public sidewalk in Shubuta, Mississippi, sustaining a broken and dislocated elbow requiring corrective surgery. Shortly after the incident a city police officer prepared an incident report which was turned in and submitted to the city clerk. On October 19, 1993, Carr signed a "Report of Public Liability" at the office of the city clerk. [FN1] This document, provided by the city, contained all the information required by the notice of claim provisions of § 11-46-11, except the amount of damages sought, although her injuries were described generally, i.e. dislocated elbow, chipped bone, pulled ligament, loose teeth, scratches, and broken glasses. The notice also gave the name of her primary physician. Her monetary damages were unknown at the time as her medical treatment was ongoing. Correspondence between the city and its insurer, the Mississippi Municipal

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