Punzo v. Jackson County, 2002-CA-01196-SCT.

• Decision Date: 04 December 2003
• Docket Number: No. 2002-CA-01196-SCT.,2002-CA-01196-SCT.
• Citation: 861 So.2d 340
• Parties: Henry PUNZO v. JACKSON COUNTY, Mississippi.
• Court: Mississippi Supreme Court

861 So.2d 340

Henry PUNZO v. JACKSON COUNTY, Mississippi.

No. 2002-CA-01196-SCT.

Supreme Court of Mississippi.

December 4, 2003.

Russell S. Gill, Bradley Wade Rath, Biloxi, attorneys for appellant.

Gary S. Evans, attorney for appellee.

SMITH, Presiding Justice, for the Court.

¶ 1. This case, arising from property damage, arises under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003). The landowner seeks an award of monetary damages and a mandatory injunction against a county. The issues before us are whether the trial court erred in granting summary judgment, finding the claim to be time barred as to money damages, and whether the trial court erred in refusing to grant a mandatory injunction. We find the trial court's summary judgment dismissing the money damage claims was not proper because the discovery of a latent injury rule applied to toll the statute of limitations. On the issues concerning injunctive relief, we find the trial court erred in not applying the current legal standard for mandatory injunctions. Therefore, we reverse and remand.

FACTS

¶ 2. Since 1986, Henry Punzo (Punzo) has resided at 15600 Green Thumb Drive in Jackson County, Mississippi; his home was built at approximately eighteen feet above sea level. On Punzo's property is a creek which crosses about three acres of the property. Approximately three fourths of a mile to one mile from Punzo's home downstream is the Daisy Vestry Road two-lane bridge (bridge), spanning the creek with a steep approach on each side. This low area serves as a relief mechanism for the watershed upstream of the bridge.

¶ 3. In late 1991 or early 1992, the Jackson County Road Department filled in the north approach to the bridge. This operation encompassed a length of about four hundred fifty feet to an average height of about two feet. The fill was calculated to have provided an extra two thousand seven hundred cubic feet per second of water flow capacity to the flow allowed by the bridge.

¶ 4. Sometime after the approach was raised or filled, Jackson County added two polyethylene culverts immediately north of the bridge. These culverts were calculated to have about one hundred sixty cubic feet per second of water flow capacity. This is about six percent of the approach's capacity prior to the fill.

¶ 5. On May 5, 1995, Punzo's home flooded for the first time. On March 7, 1998, the house flooded a second time. Punzo's house flooded three more times on September 12, 1998, September 27, 1998, and June 11, 2001. The home flooded at least once more since the trial of this matter. As a result of the floods, Punzo has incurred approximately $129,973.98 in damages to date.

¶ 6. The following tropical storms and/or hurricanes coincided with episodes of flooding: September 12, 1998, was Tropical Storm Frances with a total of 8.07 inches of rainfall, September 27, 1998, was Hurricane Georges with 15.67 inches of rainfall, and June 11, 2001, was Tropical Storm Allison with 9.90 inches of rainfall.

¶ 7. On September 9, 1999, Henry Punzo presented a notice of claim to the Jackson County Board of Supervisors (Board), pursuant to the MTCA. On December 8, 1999, Punzo filed a complaint against Jackson County, Mississippi (County) in the Circuit Court of Jackson County. The lawsuit sought a claim for money damages and a mandatory injunction.

¶ 8. After the County filed a motion to dismiss or in the alternative, for summary judgment, Punzo filed an amended complaint. The trial court disposed of the claim for money damages under the MTCA by partial summary judgment on January 11, 2002, finding the claim was barred by the one-year statute of limitations. The court held that the statute began to run at the time of the alleged wrongful conduct the raising of the road on the north side of the bridge. Punzo claimed the discovery of a latent injury rule applied, tolling the statute of limitations until his discovery of the alterations to the bridge in 1998.

¶ 9. After a full trial on the merits concerning the remainder of Punzo's complaint, the trial court denied Punzo's request for a mandatory permanent injunction. The trial court found that Punzo did not prove beyond a reasonable doubt that he was entitled to a mandatory injunction and that Punzo did not show that an injunction is the only effective remedy. The trial court issued final judgment on July 2, 2002. Punzo appealed to this Court the trial court's partial summary judgment and denial of mandatory injunctive relief.

STANDARD OF REVIEW

¶ 10. The County filed a motion to dismiss, or in the alternative for summary judgment. This Court has said before a motion to dismiss raises issues of law. Reid v. Am. Premier Ins. Co., 814 So.2d 141, 144 (Miss.2002) (citing Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000)). This Court reviews de novo a grant of summary judgment. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). Only if the plaintiff is unable to prove any facts to support his claim will summary judgment be granted. Smith v. Braden, 765 So.2d 546, 549 (Miss.2000) (citing Delahoussaye v. Mary Mahoney's, Inc., 696 So.2d 689, 690 (Miss. 1997)). In order for this Court to reverse a summary judgment, there must exist a triable issue of fact after the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss. 1999) (citing Box v. State Farm Mut. Auto. Ins. Co., 692 So.2d 54, 56 (Miss.1997)).

¶ 11. Additionally, on appeal is the trial court's judgment denying injunctive relief. The review of a trial judge's findings of fact and law requires a finding that the trial court was manifestly wrong before this Court will disturb its ruling. USPCI of Miss., Inc. v. State ex rel. McGowan, 688 So.2d 783, 786 (Miss.1997) (citing RC Constr. Co., Inc. v. Nat'l Office Sys., Inc., 622 So.2d 1253, 1255 (Miss. 1993)).

LAW AND ANALYSIS

¶ 12. There are four issues on appeal. The first concerns the order dismissing the claims as to money damages; the order is styled as one granting summary judgment as to the money damages. The remaining three concern the final judgment denying a mandatory injunction, and these three will be addressed together.

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE COUNTY'S MOTION FOR SUMMARY JUDGMENT AS TO PUNZO'S CLAIM FOR MONEY DAMAGES.

¶ 13. The trial court's basis for dismissing the money claims by partial summary judgment was that the claim was time barred by the statute of limitations provision that applies to government entities:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim.

Miss.Code Ann. § 11-46-11(3). The County claims that the discovery rule does not apply to toll the statute. Punzo claims the discovery rule does apply.

¶ 14. Punzo argues that if the one-year statute of limitations in § 11-46-11(3) applies, then his claim was promptly filed since he filed his complaint within one year of his discovery of the County's negligent rebuilding of the bridge. Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss.1999). Punzo asserts that he had no way of knowing that the County was liable until September 12, 1998, when his neighbor, Mark Holland, and former Jackson County supervisor Tommy Brodnax advised him of the modification to the bridge. As a result, he maintains that his notice to the County, filed on September 9, 1999, was timely filed within one year of his discovery of the County's negligent conduct. His complaint filed on December 8, 1999, was also timely filed.

¶ 15. The County argues that the statutory language used, "the tortious, wrongful or otherwise actionable conduct," requires the statute to run from the date the bridge construction was completed, which would have been late 1991 or early 1992. The County also argues that for the discovery rule to apply, there must be a latent injury. Looking at the flood as the injury, the County states there is nothing latent, or concealed, about floodwaters in a house. Punzo contends that this Court should look to the discovery of the cause of the injury in this instance, not the date, because the cause was not readily apparent or obvious. The trial court held that Punzo's injury was "immediate rather than latent," explaining, "[t]he cause of the injury may have been unknown at the time, but [Punzo] certainly knew that he had been injured in May of 1995."

¶ 16. The trial court's findings are not consistent with this Court's prior holdings as in Barnes, 733 So.2d 199, and Sweeney v. Preston, 642 So.2d 332 (Miss.1994). In Barnes, this Court repeated Sweeney's summary of the rationale supporting the application of the discovery rule to latent injury cases:

Thus, where an injury or disease is latent, a determination of when the statute of limitation begins to run focuses not on the time of the negligent act or omission, but on when the plaintiff discovers the injury or disease. Moreover, knowledge that there exists a casual relationship between the negligent act and the injury or disease complained of is essential because "it is well-established that prescription does not run against one who

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