Tucker v. Hinds County

• Decision Date: 21 March 1990
• Docket Number: No. 07-CA-59298,07-CA-59298
• Citation: 558 So.2d 869
• Court: Mississippi Supreme Court
• Parties: C.E. TUCKER v. HINDS COUNTY, Mississippi, and Mississippi Power & Light Company.

Page 869

558 So.2d 869

C.E. TUCKER v. HINDS COUNTY, Mississippi, and Mississippi Power & Light Company.

No. 07-CA-59298.

Supreme Court of Mississippi.

March 21, 1990.

William W. Ferguson, Raymond, for appellant.

Ben J. Piazza, Jr., Montgomery Smith-Vaniz & McGraw, Natie P. Caraway, and Edward C. Cohen, Wise Carter Child & Caraway, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., PRATHER, P.J., and PITTMAN, J.

PITTMAN, Justice for the Court:

C.E. Tucker filed suit in Hinds County Circuit Court against Hinds County and Mississippi Power & Light, alleging that he had been damaged when Hinds County and MP & L discontinued his electrical power. Hinds County included in its answer a defense of failure to state a claim, and both Hinds County and MP & L moved for summary judgment. The trial court granted Hinds County's motion to dismiss, and granted MP & L's motion for summary judgment. Tucker appeals, assigning as error:

I. THE CIRCUIT COURT WAS IN ERROR IN GRANTING HINDS COUNTY'S MOTION TO DISMISS ON THE BASIS OF THE DOCTRINE OF SOVEREIGN IMMUNITY.

II. THE CIRCUIT COURT WAS IN ERROR IN GRANTING MOTION FOR SUMMARY JUDGMENT OF MISSISSIPPI POWER & LIGHT COMPANY.

STATEMENT OF THE FACTS

C.E. Tucker was in 1983 a resident of Terry, Mississippi. He was employed by the Jackson Fire Department. Sometime in early 1983, there was a fire in a house owned by Tucker. The local fire department disconnected Tucker's electricity in the process of fighting the fire. Tucker was not living in the house at the time of the fire, but had been renting it, and the tenants had moved out two days before the fire. The major damage resulting from the fire was to a 20 X 20 area of the basement which had been used as a master bedroom, although there was some heat and smoke damage to the rest of the house.

In an effort to get his power restored, Tucker went to the MP & L office in Clinton. They told him that he would have to see someone at the Hinds County Permit Department. Tucker went there and consulted with W.W. Golson, Director of the Department. According to Tucker, he didn't want to repair his house, and told Golson this, but Golson refused to have the power turned back on unless Tucker got a permit. As a result Tucker applied for on May 4, 1983, and received two days later, a Hinds County Building Permit. He also received with the permit a copy of the County's inspection procedures. Tucker had his power restored very shortly after this. Tucker said that he had no idea that this was temporary service. Tucker never repaired the fire damage in his basement, preferring to block it off. He did paint over some of the smoke damage. Hinds County personnel inspected Tucker's house on January 19, 1984, with the observation that the site "[had] a construction pole and meter" and someone was "still doing work on [the] building." Hinds County personnel again inspected Tucker's house on August 28, 1986. The request for inspection contained the following notation: "T/S-House power box on house--no cover over breakers--Meter # 274-725--Also check to see if he has a shop he is operating." We assume that T/S stands for "temporary service." Another inspection was made on September 2, 1986, and the notation was once again concerned with whether Tucker was operating a shop. A third inspection Because of this notice Tucker called Sullivan at the Hinds County Permit Department. According to Tucker he was immediately transferred to W.W. Golson. Golson told him that his building permit had expired. Tucker replied that he didn't need a permit as he was through working on the house. Golson told him that he had to have a permit anyway, and for him to come in. Tucker went by the Department on September 8. According to Tucker, he met with Golson and two other men in Golson's office. Tucker refused to ask for another permit, and invited Golson to inspect his house or to do whatever else was necessary. According to Tucker, Golson then turned to one of the other men there and said, "Call MP & L. Have them disconnect Tucker's service. I'll think of a reason later." Tucker then left the office. According to Tucker his service was disconnected within a day or two.

                was made on September 4, 1986, and though much of the writing on the inspection form is illegible, it does contain the notation:  "Leave note to call office concerning meter on house & expired permit ... talk to Sullivan ...  Electric panel has wires outside of conduit going into side of it."   The Hinds County inspector left a notice at the Tucker house on this September 4 visit, with the notice mentioning an "expired permit" and an "open electric panel outside," and directing that Tucker should "ask for Mr. Sullivan."   The notice was signed by Leonard James
                

Joe McClendon, a serviceman for MP & L, inspected Tucker's property on September 9, 1986. According to McClendon, the manner in which the meter base was connected to the house was improper and hazardous, and some of the wiring inside was also done incorrectly. McClendon stated that "[t]he overall situation was hazardous and did not meet electrical code specifications. Therefore, I was under orders to disconnect and did disconnect service on the property in question, the property of C.E. Tucker, due to the hazardous and dangerous situation." (Entered into record by Joint Stipulation) On September 11, Golson wrote to Eddie Toole, service manager for MP & L in Clinton. Golson mentioned the moving of a meter from a pole to the house without the house being approved for a meter, alleged that this was a violation of Article III, Section 300, Paragraph 1 of the Hinds County Zoning Ordinance, and requested "that no meter be placed on this dwelling until and only until the dwelling has been inspected and approved for electric service." Tucker wrote to Golson on September 19, reiterating his refusal to obtain a permit, and demanding that his power be restored within seventy-two hours. The power was not restored.

Tucker filed suit against Hinds County and MP & L in Hinds County Circuit Court on November 12, 1986. He alleged that Hinds County's actions had amounted to a taking of his property and property rights without due process, and were intentional, willful and wanton. He further alleged that MP & L had terminated his electrical service at a time when his account was current, and that it had done so wrongfully in violation of his due process rights. He asked for actual and punitive damages. Hinds County answered and asserted as defenses that Tucker failed to state a claim, and that it was protected from liability by the doctrine of sovereign immunity. Hinds County also counterclaimed against Tucker, alleging that he was in violation of the Hinds County Zoning Ordinance, and asking that he be enjoined from further occupancy or construction of his property until he obtained and complied with a building permit. MP & L answered and denied the allegations against it.

On July 9, 1987, MP & L moved for summary judgment. Hinds County likewise moved for summary judgment on August 21, 1987. MP & L's Motion for Summary Judgment was granted on March 8, 1988. Hinds County's Motion for Summary Judgment was not ruled on, as the Circuit Court, relying on Grantham v. Mississippi Dept. of Corrections, 522 So.2d 219 (Miss.1988), found that Hinds County was immune from liability and dismissed Tucker's suit against it. C.E. Tucker, presumably still without power, has appealed both decisions.

STANDARD OF REVIEW

A motion for dismissal under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Lester Engineering Co. v. Richland Water and Sewer District, 504 So.2d 1185, 1187 (Miss.1987); 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1357, at 593 (1969). This Court conducts de novo review on questions of law. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987).

This Court also conducts de novo review of a lower court's grant of summary judgment. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63 (Miss.1988). The applicable standard is as follows:

The trial court must review carefully all of 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 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.

Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

The burden of demonstrating that no genuine issue of fact exists is on the moving party. The non-movant should be given the benefit of every reasonable doubt. Short, 535 So.2d at 63-64.

DISCUSSION OF ISSUES

I. THE CIRCUIT COURT WAS IN ERROR IN GRANTING HINDS COUNTY'S MOTION TO DISMISS ON THE BASIS OF THE DOCTRINE OF SOVEREIGN IMMUNITY.

Tucker argues in his brief that Hinds County's actions were violative of the United States and Mississippi Constitutions in two ways: (1) Hinds County ordered his electric power shut off without affording him due process; and (2) Hinds County, acting in conjunction with MP & L, caused him to lose his deposit with MP & L. Tucker cites two cases which have nothing to do with due process, only with taking private property without compensation.

The trial court found that Hinds County's sovereign immunity defense was valid as a matter of law, and dismissed Tucker's suit based on the 12(b)(6) defense raised in Hinds County's answer. A motion to dismiss made under Rule 12(b)(6) is not favored, and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Martin v....