Thompson v. City of Vicksburg, 2000-CA-01965-SCT.

• Decision Date: 11 April 2002
• Docket Number: No. 2000-CA-01965-SCT.,2000-CA-01965-SCT.
• Citation: 813 So.2d 717
• Court: Mississippi Supreme Court
• Parties: Sybil THOMPSON v. CITY OF VICKSBURG.

813 So.2d 717

Sybil THOMPSON v. CITY OF VICKSBURG.

No. 2000-CA-01965-SCT.

Supreme Court of Mississippi.

April 11, 2002.

Andre Francis Ducote, Wayne E. Ferrell, attorneys for appellant.

Gerald E. Braddock, attorney for appellee.

EN BANC.

McRAE, P.J., for the court.

¶ 1. Sybil Thompson appeals from an order entered on July 27, 2000, by the Warren County Circuit Court denying her motion for reconsideration of a November 25, 1997, order granting summary judgment in favor of the City of Vicksburg. Thompson's attorney submitted a proposed final judgment on January 6, 1998, which the court never entered. No final judgment had ever been entered; and therefore, the trial court's order is reversed pursuant to Rule 58 of the Mississippi Rules of Civil Procedure. Further, under the Tort Claims Act, we no longer require a strict compliance with the notice of claim requirements of that Act. We now require only substantial compliance with the notice of claim procedures. Thus, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sybil Thompson ("Thompson") filed a complaint against the City of Vicksburg ("City") under the Mississippi Tort Claims Act ("MTCA"), Miss.Code Ann. §§ 11-46-1 to -23 (Supp.2001), to recover for personal injuries she sustained in the Vicksburg Police Department building in Vicksburg. While on a visit to the police department, Thompson was directed by employees to a stairwell which led to her destination. As she was descending the stairwell, the hand rail gave way causing her to fall and suffer injuries to her knees, upper back, and neck.

¶ 3. Thompson filed a complaint against City under the MTCA. Later, City filed a motion for summary judgment based on Thompson's failure to strictly comply with the notice requirements of MTCA. The trial court noted that Thompson had substantially complied with the notice requirements under MTCA, however, at that time, we required strict compliance with the notice requirements pursuant to City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997) and Carpenter v. Dawson, 701 So.2d 806 (Miss.1997). Therefore, the trial court granted summary judgment in favor of the City, and entered an order to that effect on the trial court docket on November 25, 1997. No final judgment was entered. Wayne E. Ferrell, counsel for Thompson at the time, wrote a letter and submitted to the trial court on January 6, 1998, a proposed Final Judgment requesting that it be entered. The trial court never entered a document styled "Final Judgment." Thompson later changed counsel.

¶ 4. Subsequent to the entry of the order granting summary judgment to City, we rendered the decisions of Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998) and Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999), which relaxed the standard of strict compliance for notice under the MTCA and implemented a substantial compliance standard. Reaves changed the standard, and Carr overruled the cases upon which the trial court relied in granting City's motion for summary judgment.

¶ 5. On March 1, 2000, Thompson's new attorney filed a motion for reconsideration of the order granting summary judgment based upon the changes in the law. On July 27, 2000, the trial court denied the motion stating that the trial court was without jurisdiction because the November 25, 1997, order granting summary judgment was an appealable order to which plaintiff failed to timely file a Motion to Amend pursuant to Rule 52 of Mississippi Rules of Civil Procedure. According to the trial court, since Thompson did not timely file a "Motion to Amend", her case was not pending at the time Reaves and Carr were decided and the rulings therein would not be applied retroactively to her case. On August 17, 2000, Thompson timely filed a notice of appeal from the trial court's order denying her motion for reconsideration.

DISCUSSION

I. WHETHER GRANTING A SUMMARY JUDGMENT MOTION TO THE CITY OF VICKSBURG BY ORDER CONSTITUTED A FINAL JUDGMENT FROM WHICH AN APPEAL COULD HAVE BEEN TAKEN

¶ 6. Whether the trial court's granting of summary judgment was proper is not at issue in the case sub judice. Rather, the primary issue is whether the order granting City's motion for summary judgment constituted a final judgment from which appeal could have been taken. Thompson contends that since the order granting summary judgment was not styled "Judgment" or "Final Judgment," that order was not a final appealable judgment; and therefore, her case was still pending at the time she filed her motion for reconsideration. Thompson concludes that since her case was still pending, her motion for reconsideration was timely filed, and the trial court erred in denying said motion. Alternatively, City argues that an order is not invalid as a final adjudication because it is styled "order" and not "judgment," and that the order granting summary judgment was a final appealable order.

¶ 7. In support of her contention, Thompson relies upon Rule 58 of the Mississippi Rules of Civil Procedure which states, "Every judgment shall be set forth on a separate document which bears the title of `Judgment.' A judgment shall be effective only when so set forth and when entered as provided in M.R.C.P. 79(a)." Miss. R. Civ. P. 58 (emphasis added).

¶ 8. Mullen v. Green Tree Fin.-Corp., 730 So.2d 9 (Miss.1998) provides an interpretation of Rule 58 upon which Thompson relies. In Mullen we held that the language of Rule 58 is "clear and unambiguous" in that it requires a separate document entitled "Judgment" as a final order. Id. In support of a literal interpretation of Rule 58, we noted that in the Comments to Rule 54(a) of Mississippi Rules of Civil Procedure "[t]he terms `decision' and `judgment' are not synonymous under these rules. The decision consists of the court's findings of fact and conclusions of law; the rendition of judgment is the pronouncement of that decision and the act gives it legal effect." Id. at 12. We went on to describe the need for parties to know the date of a final judgment so they can proceed under the Mississippi Rules of Civil Procedure for filing the various time sensitive motions. Id. (citing Bruce v. Bruce, 587 So.2d 898 (Miss.1991); Allen v. Mayer, 587 So.2d 255, 260 (Miss.1991); Miss.Code Ann. § 11-51-79 (1972); Miss. R.App. P. 4). We further explained that the "need supports the requirement of Rule 58 that all judgments must bear the title of `Judgment'." Id.

¶ 9. In Mullen, we further held that a ruling by a trial court was not a final judgment even though it was "treated as a judgment, as reflected by its enrollment on the Minutes of the County Court" and the "judge contemplated that a judgment was incorporated [sic] within the Court's ruling... as the last paragraph of the Ruling goes beyond that decision reached" to order an express action. Id. at 12.

¶ 10. The document in issue in Mullen was not an order granting summary judgment but rather a ruling of the court responding to a declaration of replevin. Id. at 11. Like the ruling in Mullen, the order granting summary judgment here was entered into the minutes and court docket of the trial court. The trial court in Mullen held that the ruling was not a final judgment. Id. at 12. In keeping with Mullen, we find that the order granting summary judgment did not constitute a final judgment from which appeal could have been taken.

¶ 11. We have previously reinstated an appeal which had been dismissed for not being timely filed on the basis that no final judgment was entered. Roberts v. Grafe Auto Co., 653 So.2d 250 (Miss.1994). We held in Roberts that documents entitled "Jury Verdict for Defendant" were not considered a final judgment from which an appeal could have been taken. Id. Even though the "Jury Verdict for Defendant" in Roberts was not entered in the court docket as required by M.R.C.P. 79(a) and a notice of entry was not served upon the parties as required by M.R.C.P. 77(d), the pronounced law still applies. Roberts, 653 So.2d at 250. In the case sub judice, an entry was made on the court docket concerning the order granting summary judgment, and both Thompson and City were given notification of said order in line with their respective due process rights. Thompson knew an order granting summary judgment had been granted in favor of City. In fact, her attorney at the time, Wayne E. Ferrell, wrote a letter and submitted to the trial court a proposed Final Judgment requesting final judgment be entered. The trial court has not, to date, entered a document styled "Final Judgment." Roberts is still sound law, and we will not stray from it. The motion for reconsideration is reinstated as no final judgment has been entered.

II. WHETHER THE TRIAL COURT ERRED IN HOLDING THOMPSON'S MOTION FOR RECONSIDERATION

AS UNTIMELY FILED.

¶ 12. As discussed above, Thompson's motion for reconsideration was timely filed since her case was still pending due to the trial court's failure to enter final judgment. Therefore, none of City's arguments have merit. The City argues that the time limits have expired. However, the time limits have not yet begun to run since no judgment has ever been entered. Consequently, the trial court erred in holding the motion for reconsideration was untimely filed.

III. WHETHER SUBSEQUENT CHANGES IN THE LAW ARE TO BE APPLIED RETROACTIVELY ONLY TO CASES ON APPEAL

¶ 13. The trial court granted summary judgment for the City after finding that while Thompson had substantially complied with the notice provisions of the MTCA, she was required to meet strict compliance notice provisions pursuant to City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997) and Carpenter v. Dawson, 701 So.2d 806 (Miss.1997). Subsequently, we changed the notice provisions under the MTCA from strict compliance to substantial compliance. See Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998)

. We overruled Lumpkin and Carpenter in Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). While her...