McLemore v. Mississippi Transp. Com'n, 2005-CA-02076-SCT.

• Decision Date: 12 June 2008
• Docket Number: No. 2005-CA-02076-SCT.,No. 2007-SA-00597-SCT.,2005-CA-02076-SCT.,2007-SA-00597-SCT.
• Citation: 992 So.2d 1107
• Parties: Dennis M. McLEMORE and Wife, Tammy C. McLemore v. MISSISSIPPI TRANSPORTATION COMMISSION.
• Court: Mississippi Supreme Court

992 So.2d 1107

Dennis M. McLEMORE and Wife, Tammy C. McLemore v. MISSISSIPPI TRANSPORTATION COMMISSION.

No. 2005-CA-02076-SCT.

No. 2007-SA-00597-SCT.

Supreme Court of Mississippi.

June 12, 2008.

Rehearing Denied November 6, 2008.

Joseph Walker Sims, attorney for appellants.

Richard G. Noble, Oxnard, J. Anthony Williams, attorneys for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶ 1. Dennis and Tammy McLemore filed suit in the Circuit Court of DeSoto County against the Mississippi Transportation Commission (MTC) and Talbot Brothers Contracting Co., Inc., alleging a taking without just compensation in violation of the Mississippi and U.S. Constitutions due to flooding and siltation on real property from negligence in the construction of a highway. The trial court granted summary judgment for MTC. Subsequently, the McLemores filed this appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. The MTC filed an eminent domain action in 1999 to obtain a 174-acre portion of the McLemores' DeSoto County property to construct an interstate highway between Interstate 55 at Hernando and Highway 61 at Robinsonville. A jury awarded the McLemores $1,370,000 in 2001. In 2003, this Court reversed the verdict of the jury and remanded the case for a new trial. See Miss. Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss. 2003). Prior to the retrial, MTC filed a motion in limine to prohibit the McLemores from introducing proof regarding flooding, drainage and erosion damages. The trial court granted the motion, ordering as follows:

[T]he Plaintiff's Motion in Limine is hereby sustained and the Court orders that counsel for the Defendants, the Defendants and witnesses for the Defendants shall refrain from mentioning or stating during the trial of this cause all matters pertaining to claims of post-acquisition damages to Defendants' property caused by the construction of the highway which is the subject of this lawsuit.

All such parties shall not refer in their statements and/or testimony to damages incurred by Defendants as a result of the action of the contractor or any other party from the construction of the highway, including but not limited to erosion, siltation, crop damage and remediation efforts. The Court finds that such reference or mention of post-acquisition damages is not a proper element of damages and therefore cannot be considered in this eminent domain action.

¶ 3. On retrial, the jury returned a verdict awarding the McLemores $1,425,320 in compensation and damages and granting MTC immediate title, possession, and entry upon the property, appropriating it to the public use upon payment.

¶ 4. In the instant case, the McLemores assert that MTC's construction of the highway itself and through its contractor, Talbot, caused numerous flooding, drainage, and siltation problems for the remainder of their land. Specifically, the McLemores assert that the excavation of fill dirt for the highway from pits located on Tunica Bluffs caused severe erosion and siltation. In an attempt to cure some of the problems, MTC built a bridge over the drainage ditch and took out a previously-installed culvert to allow increased flow of water. Talbot was fined for its practices by the Mississippi Department of Environmental Quality.

¶ 5. The McLemores filed suit alleging a taking without just compensation of their remaining property by the MTC due to flooding and siltation and also alleging that Talbot was negligent. MTC answered and filed a motion for summary judgment on the basis that the action should have been brought under the Mississippi Tort Claims Act. The McLemores filed a response reiterating their claim of a taking. On August 18, 2005, the trial court entered an order granting MTC's motion for summary judgment, finding in part: "In the case at hand, while the Plaintiffs have couched their claims as a constitutional violation, the Court finds that the claims are clearly tort-based and, therefore, subject to the Mississippi Tort Claims Act." The trial court further found the action was barred by the applicable statute of limitations.¹ On September 27, 2005, the trial court entered an Order of Dismissal and Final Judgment only as to MTC.² Thereafter, the McLemores filed this appeal.

ANALYSIS

Whether the trial court erred in granting summary judgment in favor of the MTC, dismissing the claims of the McLemores under Article 3, Section 17 of the Mississippi Constitution and under the Fifth and Fourteenth Amendments to the United States Constitution for just compensation and damages.

¶ 6. This Court employs a de novo standard of review in considering a trial court's decision on a motion for summary judgment. See Huff-Cook, Inc. v. Dale, 913 So.2d 988 (Miss.2005). See also Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206 (Miss.2001). "A motion for summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 1209. See Rule 56(c), Mississippi Rules of Civil Procedure (M.R.C.P.). "To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the rule." Hartford, 826 So.2d at 1209. This Court has further said:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

City of Jackson v. Sutton, 797 So.2d 977 (Miss.2001) (quoting Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000)) (internal citations omitted).

¶ 7. The McLemores assert that the trial court's finding that the case should have been brought under the Mississippi Tort Claims Act contradicts prior case law. Specifically, the McLemores assert that the trial court decision contradicts B & W Farms v. Mississippi Transportation Commission, 922 So.2d 857 (Miss.Ct.App. 2006). The MTC asserts that B & W Farms only reaffirms the application of the Mississippi Tort Claims Act to this case.

¶ 8. In B & W Farms, the Court of Appeals (COA) affirmed the trial court, finding that B & W failed to provide sufficient notice to the defendant of the claims and grounds pursuant to Article 3, Section 17 of the Mississippi Constitution, under which relief was sought. Clearly, such a finding indicates the viability of such a claim if proper notice is provided. Moreover, the parties agree that the McLemores provided notice of the constitutional claims. However, the MTC asserts that the Mississippi Tort Claims Act provides the exclusive remedy for the McLemores and that they failed to plead it; therefore summary judgment was proper. However, we disagree.

¶ 9. Article 3, Section 17 of the Mississippi Constitution states:

Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.

Miss. Const. Ann. art. 3, § 17.

¶ 10. This Court has previously upheld damages pursuant to this constitutional provision. See Miss. State Highway Comm'n v. Thomas, 202 So.2d 925 (Miss. 1967) (highway commission held liable for damages to property where, as a result of highway construction, the natural flow of water from area increased and carried dirt, sand, clay and other materials into a lake located on Thomas' land). See also Miss. State Highway Comm'n v. Engell, 251 Miss. 855, 171 So.2d 860 (1965) (highway commission liable for damage to adjacent property). Further, this constitutional provision is only applicable in cases involving property taken for public use. Burkett v. Ross, 227 Miss. 315, 86 So.2d 33 (Miss.1956). Moreover, this Court has said that "[n]o public policy of the state can be allowed to override the positive guaranties of the Constitution, or divest persons of their title to property, except in the way which the law provides." Hill v. Woodward, 100 Miss. 879, 889, 57 So. 294 (Miss.1911).

¶ 11. While there is an argument that this Court has distinguished cases involving negligence claims, such argument is not applicable here. The negligence claims in the instant case pertain to Talbot. The action against MTC is for taking without just compensation pursuant to the constitution. This Court has previously found the language that "[p]rivate property shall not be taken or damaged for public use," as quoted previously herein, is without limitation. Specifically, this Court has found:

The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other corporations alike; and they cover all damages of whatever character.... The citizen must now be held, under this new provision of our...