Prystupa v. Rankin Cnty. Bd. of Supervisors, 2020-CA-01049-COA

• Court: Court of Appeals of Mississippi
• Writing for the Court: McDONALD, J.
• Parties: JOHN PRYSTUPA APPELLANT v. RANKIN COUNTY BOARD OF SUPERVISORS AND PEARL RIVER VALLEY WATER SUPPLY DISTRICT APPELLEES
• Decision Date: 10 May 2022
• Docket Number: 2020-CA-01049-COA

JOHN PRYSTUPA APPELLANT
v.
RANKIN COUNTY BOARD OF SUPERVISORS AND PEARL RIVER VALLEY WATER SUPPLY DISTRICT APPELLEES

No. 2020-CA-01049-COA

Court of Appeals of Mississippi

May 10, 2022

DATE OF JUDGMENT: 06/04/2020

RANKIN COUNTY CIRCUIT COURT, HON. STEVE S. RATCLIFF III TRIAL JUDGE

ATTORNEY FOR APPELLANT: CHRISTOPHER JACKSON WELDY

ATTORNEYS FOR APPELLEES: ROBERT O. ALLEN WILLIAM 'TREY' JONES III JACOB O. MALATESTA NORMAN ELVIN BAILEY JR.

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J.

¶1. John Prystupa appeals the Rankin County Circuit Court's dismissal of the complaint he filed against the Rankin County Board of Supervisors (Rankin County) and the Pearl River Valley Water District (PRV) for flooding damage to his rental property. He had alleged that the damage was due to their negligent maintenance of the storm drainage system. On appeal, Prystupa argues that the dismissal was improper because the statute of limitations was tolled by the discovery rule. Prystupa also claims that the circuit court erred when it

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denied his supplemental motion for leave to amend his complaint. Prystupa did not file that motion until after the circuit court dismissed his complaint with prejudice. Having reviewed the record, the arguments of counsel, and relevant precedent, we affirm the circuit court's rulings on both issues.

Facts

¶2. Prystupa owned rental property in Rankin County in the PRV service area. When his tenant left in February 2018, Prystupa discovered water damage to the rental home from storm-water drainage. He contacted PRV and reported that he had seen two drains fail to collect and remove the water from the street. According to Prystupa, PRV building department employee Steve Clark came out twice and told Prystupa that his property sat at the lowest point of intersecting streets and that the curb and drain had sunk in the street. According to Prystupa, Clark told him to divert the water off the property by using berms or drains in the ground.

¶3. Prystupa hired a foundation repair company, Structural Solutions, which on March 20, 2018, assessed the damage to the rental home at $41, 500 ($30, 000 to raise the home and $11, 500 to install adequate drainage). Prystupa claimed that he lost $1, 300 per month in rental income for each month the property remained vacant.

¶4. On April 11, 2018, Prystupa submitted the bill for the water damage with a letter to PRV in which he claimed that the district was liable because the drain near the property "is collapsed and broken brick can be seen from outside the street." He noted that the culvert

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was "sunken and not level with the street as is the norm with the surrounding drains" and that "the drain is obviously blocked." Prystupa said that he had repeatedly called PRV and requested that the drains be cleared, blown out and/or repaired, but PRV had done nothing.

¶5. According to PRV, Prystupa reported in June 2018 that Rankin County performed work on the storm drain and drainage ditch beside his property.

¶6. On August 1, 2018, Prystupa sent an email to PRV's attorney, Phillip Huskey, Mississippi Special Assistant Attorney General, to follow up on his claim. Huskey referred him to Lisa Wells of Cannon Cochran Management Services, Inc. (CCMSI), the claims administrator for PRV's insurance with the Mississippi State Tort Claims Board. On August 23, 2018, Wells emailed Prystupa saying that Rankin County was responsible for maintenance in his subdivision and that she trusted he had filed a claim with Rankin County "as she had previously suggested." She said that her investigation was not complete, but thus far, she had not found any negligence by PRV.

¶7. In September 2018, Prystupa contacted the Rankin County Road Department, which sent Dale Hill to visit the property. According to Prystupa, Hill saw water flow from three directions and "a blockage that prevented the water from the street to adequately drain." Hill reported this to the road manager who contacted the county engineer. They determined that the county did not have the right of way to perform the repairs needed to clear the blockage and that it was PRV's responsibility to do so. Hill communicated this to Prystupa and offered to contact PRV's building department to let it know where the blockage may be

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located so that it could be cleared to prevent the flooding. In October 2018, Rankin County Road Supervisor Steve Harrison confirmed this information with Prystupa. He told Prystupa that Rankin County could only attempt repairs to the drain a few feet into the easement. After three to six feet, PRV had the right of way, and Rankin County was not allowed to conduct any repairs on the pipe beyond that. Prystupa said, "Steve Harrison also walked the ditch behind the property and saw where the culvert should be and he could tell the pipe was blocked because there was no outlet on the side of our property."

¶8. Prystupa reported his contacts with Rankin County and its findings to Lisa Wells via an October 31, 2018 email. He pressed his negligent maintenance claim against PRV.

¶9. According to Prystupa, in November 2018, Rankin County tried to help by creating a berm to divert some of the water but that did not fix the problem. Prystupa said he emailed Wells about the status of his claim several times thereafter.

¶10. On January 23, 2019, Wells sent Prystupa a certified letter denying the claim. She said that in 1988, Rankin County accepted several public roads and streets for maintenance, including the streets in his subdivision. She further said that Rankin County had the power to drain water off the public roads through and over the adjacent lands pursuant to Mississippi Code Annotated section 65-7-63 (Rev. 2012) and that a drainage easement existed on Prystupa's property.^[1] In the letter, Wells noted that Prystupa had said in June that

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Rankin County employees worked on the drainage culvert and ditch, and in October 2018, they made a small berm in the front yard to channel water to the storm drain. Wells specifically stated, "The District did not perform any of this work, but did observe the interior of the storm drain with a camera in October, 2018. No blockages were found." (Emphasis added). Wells concluded that PRV employees were in no way responsible for the damages Prystupa sought.

¶11. In response to Wells's letter, Prystupa emailed her and her supervisor at CCMSI, John Burns, on January 30, 2019, and requested a copy of the footage of PRV's video camera investigation. On February 5, 2019, Prystupa emailed Burns directly, again requesting the video camera footage. On that same day, Wells responded and referred Prystupa back to PRV, saying that it owned any such footage and she did not have a copy of it.

¶12. On February 11, 2019, Prystupa emailed Huskey at the Mississippi Attorney General's office, asking him what he needed to do to obtain the video footage. Huskey replied on February 12, 2019, telling Prystupa that the maintenance crew viewed the footage in real-time and did not record it. Prystupa replied the same day, saying that he doubted what the crew may have seen because of his past experience with PRV's failure to unclog pipes.

¶13. On March 13, 2019, Craig Slay, the attorney for the Rankin County Board of Supervisors, wrote Prystupa concerning the board's discussion of his drainage issue. Slay

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indicated that the county road manager, its consulting engineer, and the supervisor of the district where the property was located had visited the area. Based on their review, they concluded that the issue was the result of conditions associated with drainage infrastructure located outside the street or street right of way. Slay said that Rankin County had no legal authority to enter onto private property to repair the drainage problem.

¶14. The record contains no information about what, if anything, Prystupa did after March until June 2019, when he hired a plumbing company, Weiand Plumbing, Inc., which found that the storm drain behind his property was crushed. There is no written report of Weiand's findings other than an invoice for Weiand's service call which states "found that the storm drain is crushed behind [the] backyard."

¶15. Prystupa retained counsel in June 2019, but no notice of claim letters pursuant to the Mississippi Tort Claims Act (MTCA) were sent to PRV or Rankin County until October 17, 2019. He demanded $91, 047.55 to repair the damages to the house and property, plus lost rent of $29, 400, for a total of $120, 447.55.

Procedural History

¶16. On March 2, 2020, Prystupa filed a complaint pursuant to the MTCA. He sought damages from both PRV and Rankin County for negligent maintenance of the drainage system. Prystupa asserted that his complaint was not barred by the statute of limitations because of the continuing tort doctrine, i.e. that the property has been and is continuously

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damaged with each rain.^[2]

¶17. On March 30, 2020, and April 5, 2020, PRV and Rankin County each filed motions to dismiss on the grounds that Prystupa's claims were time-barred and the statute of limitations was not tolled by operation of the "discovery rule." In his response, Prystupa argued that the limitations period did not begin to run until June 6, 2019, the day Weiand told him that the drain was crushed.

¶18. PRV and Rankin County noticed the motions to dismiss for hearing on May 27, 2020. Prior to the hearing date, on May 13, 2020, Prystupa filed a motion to amend his complaint to add claims for trespass and nuisance. PRV and Rankin County both responded on May 22, 2020, and argued that the proposed amendment was futile.

¶19. Prystupa did not notice his motion to amend for hearing, and he never mentioned it during the May 27, 2020 hearing on PRV and Rankin County's motions. After hearing arguments of counsel, the circuit court dismissed Prystupa's complaint, finding that...