Louise Boston v. Hartford Accident and Indemnity Company ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-00968-SCT
LOUISE BOSTON, ADMINISTRATRIX OF THE ESTATE OF MAE EVELYN BOSTON,
DECEASED
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, LAFAYETTE COUNTY,
MISSISSIPPI, F. D. EAST, VERA THEOBALD, BILL PLUNK, RICKY MILLER, LYNDON
CARPENTER AND JOHN THOMAS
DATE OF JUDGMENT: 5/31/2000
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH HINDS COUNTY CIRCUIT COURT
APPEALED:
ATTORNEY FOR APPELLANT: ELLIS TURNAGE
ATTORNEY FOR APPELLEES: H. SCOT SPRAGINS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN
PART - 4/04/2002
MOTION FOR REHEARING 4/15/2002; denied 8/1/2002
FILED:
MANDATE ISSUED: 8/8/2002
EN BANC.
PITTMAN, CHIEF JUSTICE, FOR THE COURT:
¶1. This wrongful death action was filed by Louise Boston ("Boston"), administratrix of the estate of Mae
Evelyn Boston ("Decedent") in the Circuit Court of the First Judicial District of Hinds County against
Lafayette County, its sheriff, Hartford Accident and Indemnity Company ("HAIC"), the chancery clerk, a
deputy chancery clerk and three jailers following a dismissal with prejudice of her federal claims and a
dismissal without prejudice of her state claims in federal court. Subsequently, on defendant's motion, venue
was transferred to Lafayette County. The defendant's motion to dismiss was granted when the Lafayette
County Circuit Court concluded that Boston's state law claims were barred, either by the statute of
limitations or by res judicata and collateral estoppel, that defendants Plunk and Theobald were entitled to
quasi-judicial immunity, and that Lafayette County was entitled to sovereign immunity at the time Boston's
state law claims accrued. Aggrieved, Boston perfected a timely appeal to this Court.
FACTS AND PROCEEDINGS BELOW
¶2. (The following facts are largely incorporated from Boston v. Lafayette County, 744 F. Supp. 746,
748-50 ( N.D.Miss. 1990)).
¶3. Mae Evelyn Boston ("Decedent") died in her sleep on July 12, 1987, from heart failure after being
detained approximately forty-eight hours in the Lafayette County Jail pending involuntary commitment
proceedings.
¶4. Decedent, diagnosed with chronic paranoid schizophrenia since childhood, was detained after her sister
signed an affidavit which stated, in effect, that Decedent presented a danger to herself and her newborn
child. Upon signing of the affidavit, the Chancery Judge validly appointed defendant Mel Davis ("Davis")
Special Master over the initial detainment proceedings. Davis found that the Decedent warranted temporary
detainment in the Lafayette County Jail pending a professional psychiatric and medical examination and
ordered the Chancery Clerk to issue a writ of custody so that Decedent could be detained. Defendant Bill
Plunk ("Plunk"), the Chancery Clerk, complied with Davis's command and issued the writ. During the same
proceeding, Davis appointed an attorney to represent the Decedent in any future commitment proceedings
and appointed two medical professionals from a nearby mental health center to examine and evaluate the
Decedent's mental and physical condition within the next twenty-four hours.
¶5. The writ to take custody was issued at approximately ten o'clock on a Friday morning. Although the
court-appointed physicians were ordered to examine the Decedent within twenty-four hours, the Deputy
Chancery Clerk called the mental health center and scheduled the Decedent's examination for 9:30 the
following Monday morning.
¶6. The Decedent died at approximately 11:30 that Sunday morning in between half-hourly visual
inspections of the jailer on duty, Ricky Miller ("Miller"). According to submitted expert testimony, the blood
clots which caused the Decedent's death formed at least twenty-four hours and probably several days prior
to her death, and likely would have been detected and effectively treated had medical professionals
examined her within twenty-four hours of her detainment.
¶7. The Decedent's mental illness was manifest when she was detained at the jail on Friday morning. Upon
arrival she made grunting sounds and pushed down upon her abdomen, which accompanying police officers
interpreted as a hallucination that she was having a baby. She appeared physically ill to one of the
accompanying officers, but merely appeared disoriented to Miller, who admitted the Decedent into custody.
¶8. Miller placed the Decedent alone inside a six-man cell after her arrival, pursuant to written procedure.
He also observed her condition at half hour intervals and attempted to administer her medication according
to the prescriptions. However, he failed to complete a medical screening form on the Decedent as required
by departmental policy, and he did not ascertain that the Decedent had recently given birth by caesarian
section. The Decedent remained psychotic and gave no indication to Miller that she was in pain or that she
wished for professional medical attention.
¶9. Jailers Lyndon Carpenter ("Carpenter") and John Thomas ("Thomas") also observed the Decedent at
half hour intervals during the weekend. On their respective shifts they administered her medication as
prescribed and noted each dosage in the log book. No symptoms of physical illness were readily apparent,
and at one point during the weekend Thomas observed her sitting in her cell, singing loudly. Neither jailer
investigated nor discovered Miller's failure to complete a medical screening form for the Decedent.
¶10. Miller was on duty the morning the Decedent expired. He checked on her at approximately 11:15 that
morning, at which time she was asleep and snoring. At 11:40 he conducted another check, heard no sound,
and moved closer to investigate her physical condition. Upon discovering he could not wake her, he
immediately telephoned for an ambulance and contacted Sheriff East. The Decedent was pronounced dead
on arrival at the hospital.
¶11. On September 2, 1987, Boston filed her first civil action in the United States District Court for the
Northern District of Mississippi alleging both federal and state law claims. In orders dated July 30, 1990
and August 20, 1990, the district court dismissed Boston's federal law claims with prejudice, but dismissed
Boston's state law claims without prejudice. Boston v. Lafayette County, 743 F. Supp. 462, 475
(N.D.Miss. 1990), and Boston v. Lafayette County, 744 F. Supp. 746, 755-56 (N.D.Miss. 1990). The
Fifth Circuit subsequently affirmed both decisions without opinion on May 6, 1991. Boston v. Lafayette
County, 933 F.2d 1003 (5th Cir. 1991).
¶12. On July 6, 1993, Boston brought her second civil action in the United States District Court for the
Northern District of Mississippi against some of the same defendants and additional defendants alleging
both federal and state law claims. Boston v. Theobald, Civil Action Number: 3:93-CV-106-B-D. The
district court dismissed by order and final judgment on April 20, 1995, all of Boston's federal law claims
with prejudice as they were barred by collateral estoppel, and dismissed Boston's state law claims without
prejudice.
¶13. On May 8, 1995, Boston filed her complaint in the Circuit Court of the First Judicial District of Hinds
County claiming wrongful death. Defendants subsequently filed a motion to transfer venue to Lafayette
County on July 6, 1995, which was granted by order on January 2, 1996. On November 1, 1999, the
defendants filed a motion to dismiss and for summary judgment. The motion to dismiss with prejudice was
granted May 31, 2000. The court determined:
(1) that the Statute of Limitations had ran against each of the individual defendants before this matter
was instituted on May 8, 1995; (2) that the claims of the plaintiff against all defendants are barred by
application of res judicata and/or principles of collateral estoppel; (3) that individual defendant East is
immune from the claims of the plaintiff under the discretionary function doctrine and/or because Sheriff
East did not individually participate in the deprivations alleged in this case; (4) that Defendants Plunk
and Theobald are entitled to quasi judicial immunity under Mississippi law; and (5) that the County
was entitled to sovereign immunity.
¶14. It is from this ruling that Boston appeals.
DISCUSSION
I. DID THE CIRCUIT COURT PROPERLY TRANSFER THIS ACTION FROM THE
FIRST JUDICIAL DISTRICT OF HINDS COUNTY TO LAFAYETTE COUNTY?
¶15. Boston filed her complaint in the First Judicial District of Hinds County on May 8, 1995. The
complaint named Hartford Accident and Indemnity Company ("HAIC"), Lafayette County, Vera Lee
Theobald ("Theobald") in her capacity as deputy chancery clerk of Lafayette County, F.D. "Buddy" East
("East") individually and in his capacity as sheriff of Lafayette County, Ricky Miller ("Miller"), Lyndon
Carpenter ("Carpenter"), and John Thomas ("Thomas") individually and in their capacities as jailers of
Lafayette County, and Bill Plunk ("Plunk") individually and in his official capacity as Chancery Clerk of
Lafayette County.
¶16. On July 6, 1995, the defendants filed a motion to transfer venue to Lafayette County in accordance
with Miss. Code Ann. § 11-46-13(2), commonly known as the Mississippi Tort Claims Act. On January 2,
1996, the Circuit Court of the First Judicial District of Hinds County, while not citing a specific statute,
entered an order finding the defendants' motion for change of venue to be well taken and gave Boston
twenty (20) days to dismiss individual defendants and their sureties, upon which time the court would
reconsider its decision. By order dated April 2, 1996, having found that more than twenty (20) days had
passed and no motion to dismiss had been submitted by Boston, the court transferred the action to the
Lafayette County Circuit Court. This decision was reiterated in an order dated October 29, 1996, where
the court denied Boston's motion to reconsider because Boston had failed to respond within the twenty
(20) days as required by the original order from January 2, 1996.
¶17. Boston contends that because she is an adult resident citizen of Jackson, First Judicial District of Hinds
County and HAIC is a non-resident of Mississippi, her suit should have stayed in Hinds County Circuit
Court. Citing M.R.C.P. 82(c), Boston asserts that since venue was proper in the First Judicial District of
Hinds County as to HAIC under Miss. Code Ann. §§ 11-11-7 & -11 (1972), then venue was proper as to
the remaining defendants. M.R.C.P. 82(c) states:
(c) Venue Where Claim or Parties Joined. Where several claims or parties have been joined, the suit
may be brought in any county in which any one of the claims could properly have been brought.
Whenever an action has been commenced in a proper county, additional claims and parties may be
joined, pursuant to Rules 13, 14, 22 and 24, as ancillary thereto, without regard to whether that
county would be a proper venue for an independent action on such claims or against such parties.
Miss. Code Ann. § 11-11-7 covers the suing of insurance companies:
Actions against insurance companies, groups of insurance companies or an insurance association may
be brought in any county in which a loss may occur, or, if on a life policy, in the county in which the
beneficiary resides, and process may be sent to any county, to be served as directed by law. Such
actions may also be brought in the county where the principal place of business of such corporation or
company may be. In case of a foreign corporation or company, such actions may be brought in the
county where service of process may be had on an agent of such corporation or company or service
of process in any suit or action, or any other legal process, may be served upon the insurance
commissioner of the state of Mississippi, and such notice will confer jurisdiction on any court in any
county in the state where the suit is filed, provided the suit is brought in the county where the loss
occurred, or in the county in which the plaintiff resides.
Miss. Code Ann. § 11-11-11 addresses damage suits against nonresidents:
All civil actions for the recovery of damages brought against a nonresident or the representative of the
nonresident in the state of Mississippi may be commenced in the county in which the action accrued
or where the plaintiff then resides or is domiciled, except as otherwise provided by law.
The complaint shows that Boston, a beneficiary, resided in the First Judicial District of Hinds County at the
time of her filing.
¶18. HAIC counters by stating that Miss. Code Ann. § 11-46-13 applies because a political subdivision is
being sued and because it was the statute in effect at the time this suit was filed in state court. In pertinent
part the section states:
(2) The venue for any suit filed under the provisions of this chapter against the state or its employees
shall be in the county in which the act, omission or event on which the liability phase of the action is
based, occurred or took place. The venue for all other suits filed under the provisions of this chapter
shall be in the county or judicial district thereof in which the principal offices of the governing body of
the political subdivision are located. The venue specified in this subsection shall control in all actions
filed against governmental entities, notwithstanding that other defendants which are not governmental
entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that
otherwise would apply.
Miss. Code Ann. § 11-46-13(2) (Supp. 2001) (emphasis added).
¶19. Decedent died July 12, 1987. Boston v. Lafayette County, 743 F. Supp. at 464. Her death was
almost six years before Miss. Code Ann. § 11-46-13 went into effect. While acknowledging that Boston
did not file a civil action in state court until May 8, 1995, the only way that Miss. Code Ann. § 11-46-13
could apply to the present case is if the statute was found to be retroactive.
¶20. This Court has addressed the issue of retroactivity of statutes contained in the Mississippi Tort Claims
Act. In Jones v. Baptist Mem'l Hosp., 735 So. 2d 993 (Miss. 1999), this Court held that if a statute is to
apply "effective from and after passage," it is not to apply to causes of action that have accrued prior to the
passage of the statute. This Court made the following analysis:
Although the present case concerns the retroactivity of numerous sections of the Sovereign Immunity
Act rather than solely paragraph (m) of § 11-46-9, the intent of this Court is clear. If the statutory
language mandates that the statute is to apply from and after passage, it is not to be applied
retroactively to causes of action which accrued prior to passage of the statute. The cause of
action in this case accrued prior to the enactment of § 11-46-3 (providing immunity to the state and
its political subdivisions, approved April 1, 1993) and 11-46-11 (providing for notice of claim
requirement and one year statute of limitations, approved April 1, 1993).
Id. at 998 (emphasis added).
¶21. This Court has also recently reiterated that a statute will not be retroactive unless clearly stated in the
statute:
This Court has continuously followed the rule that statutes will be construed to have a
prospective operation only, unless a contrary intention is manifested by the clearest and
most positive expression. Anderson v. Jackson Mun. Airport Auth., 419 So. 2d 1010, 1026
(Miss.1982). If the statute is unconditionally repealed without a savings clause in favor of pending
suits, all pending proceedings thereunder are terminated. Beatty v. State, 627 So. 2d 355, 357
(Miss.1993). A statute will not be construed to be retroactive unless the words admit of no
other construction or meaning, and there is a plain declaration in the act that it is. Anderson
v. Jackson Municipal Airport Auth., 419 So. 2d at 1027.
Hudson v. Moon, 732 So. 2d 927, 931-32 (Miss. 1999) (emphasis added). Fortune v. Lee County Bd.
of Supervisors, 725 So. 2d 747 (Miss. 1998) and State ex rel. Moore v. Molpus, 578 So. 2d 624 (Miss.
1991), provide additional support that a statute is to be applied prospectively unless clearly and positively
expressed in the language of the statute. These two cases upheld this Court's decision in Mladinich v.
Kohn, 186 So. 2d 481 (Miss. 1966) where this Court, after giving a comprehensive list of authority, stated:
[a] statute will not be given retroactive effect unless it is manifest from the language that the legislature
intended it to so operate. It will not be construed as retroactive unless the words admit of no other
construction or meaning, and there is a plain declaration in the act that it is. In short, these cases
illustrate a well-settled attitude of statutory interpretation: A preference that it be prospective only, and
a requirement that there should be a clearly expressed intent in the act to make it.
Id. at 484.
¶22. Given the fact that the Decedent died prior to the enactment of the Mississippi Tort Claims Act and
that Miss. Code Ann. § 11-46-13 does not contain plain and clearly expressed language that it is to be
retroactive, we find that this statute is not applicable to the present case and that venue should not have
been changed under the authority of this statute.
¶23. As stated previously, when venue was changed in the present case, no statute was cited by the Circuit
Court of the First Judicial District of Hinds County. It should not be assumed that the change in venue was
based upon the language found in Miss. Code Ann. § 11-46-13 as asserted by both parties to this suit. The
question that remains is, if change of venue was not proper under Miss. Code Ann. § 11-46-13 because
the statute was not in effect at the time the action accrued, did Lafayette County have a right to change
venue to its "home county" that pre-dates the Mississippi Tort Claims Act making the change of venue in
this case proper? This Court considered such prior to the enactment of the Mississippi Tort Claims Act, and
in doing so may well have provided the logical basis for the venue aspects of the Act:
In the case of Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692, 693 [(Miss. 1930)], we
had before us the question as to whether a county could be sued outside of the courts of the county,
by joinder with another defendant, and although the statute applicable in that case expressly provided
that the county could be sued in any court situated at the county site, it was contended that the section
was inapplicable, and that the county could be sued in another county where a joint defendant
resided. After referring to the statutes involved in that case, it is said: "It is the contention of the
appellant that under the last section it was competent to sue Newsom in the county and district of his
residence and bring the county into said district as a codefendant. It is our view that this contention is
not well founded. A county is a subdivision of the state and partakes of the sovereignty of the state
and can only be sued in the way and on the conditions prescribed by law, and section 3980 of
Hemingway's 1927 Code (section 309, Code of 1906) has provided how a county may be sued, and
where the suit shall be instituted. This statute is not affected by the general statute as to ordinary
parties litigant. There is sound reason for requiring a county to be sued in the county, or in the court
which sits at the county site and has jurisdiction of the suit. A county can only act through its officers,
and these officers are charged with various duties for the public welfare. In defending suits against
counties, the officers might be taken out of the county or called away from their public duties and the
public interests would suffer in many cases by reason of their absence from their duties while attending
court in other places than at the county site. The records might often have to be carried away from the
county site, if such suits were maintained, to the place where the suit was tried and would endanger
the safety of the said records and discommode the public who might desire to resort to the records
for any lawful purposes for which they are made and used."
City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 224-25 (1940).
¶24. In Simpson this Court determined as a matter of public policy and practicality, when a county is being
sued, such suit should take place in that county's court even if the presence of a codefendant would
normally make venue proper in another county. Section 3980 of Hemingway's 1927 Code was the statute
in effect at the time both Simpson and City of Jackson were decided. It stated:
Section 3980 of Hemingway's 1927 Code (section 309, Code of 1906) provides: "Any county may
sue and be sued by its name, and suits against the county shall be instituted in any court having
jurisdiction of the amount sitting at the county site; but suit shall not be brought by the county without
the authority of the board of supervisors, except as otherwise provided by law."
Simpson, 127 So. at 693. This statute was carried forward unchanged into subsequent codes and exists
today as Miss. Code Ann. § 11-45-17. It states:
Any county may sue and be sued by its name, and suits against the county shall be instituted in any
court having jurisdiction of the amount sitting at the county site; but suit shall not be brought by the
county without the authority of the board of supervisors, except as otherwise provided by law.
¶25. As was stated earlier, this action accrued prior to the enactment of the Tort Claims Act making the
Act inapplicable to this case. However, this Court has commented on Miss. Code Ann. § 11-45-17, a
statute which is still effective, and how it is bolstered by Miss. Code Ann. § 11-46-13(2) of the Act:
"[S]uits against the county shall be instituted in any court having jurisdiction of the amount sitting at the
county site ..." Miss. Code Ann. § 11-45-17 (1972). A complaint against Simpson County, therefore,
would be properly filed in Simpson County. This position is further supported by Miss. Code Ann. §
11-46-13(2), which provides that proper venue for a tort suit against any government entity, including
a county or municipality, is "in the county or judicial district thereof in which the principal offices of the
governing body of the political subdivision are located." Miss. Code Ann. § 11-46-13(2)
(Supp.1997).
Estate of Jones v. Quinn, 716 So. 2d 624, 627 (Miss. 1998).
¶26. Both statutory and case law support finding that transfer of venue from Hinds County to Lafayette
County was proper.
II. DID THE CIRCUIT COURT CORRECTLY CONCLUDE THAT THE CLAIMS
AGAINST ALL THE DEFENDANTS WERE BARRED BY THE APPLICABLE
STATUTE OF LIMITATIONS IN MISS. CODE ANN. § 15-1-49 AND/OR § 15-1-69
(1972)?
¶27. Boston contends that the circuit court erred when it determined that the claims were barred by the
statutes of limitations as found in Miss. Code Ann. § 15-1-49 and/or § 15-1-69 (1972). The general
statute of limitations that was in effect as of July 12, 1987, the time the action accrued, was six years.(1)
¶28. On September 2, 1987, Boston filed her first civil action in the district court alleging both federal and
state law claims. The United States District Court of the Northern District of Mississippi, in orders dated
July 30, 1990 and August 20, 1990, while dismissing her federal law claims with prejudice, dismissed
Boston's state law claims without prejudice. Boston v. Lafayette County, 743 F. Supp. 462, 475
(N.D.Miss. 1990) and Boston v. Lafayette County, 744 F. Supp. 746, 755-56 (N.D.Miss. 1990). The
Fifth Circuit affirmed both decisions without opinion on May 6, 1991. Boston v. Lafayette County, 933
F.2d 1003 (5th Cir. 1991).
¶29. On July 6, 1993, Boston brought her second civil action in the United States District Court for the
Northern District of Mississippi against some of the same defendants and additional defendants alleging
both federal and state law claims. Boston v. Theobald, Civil Action Number: 3:93-CV-106-B-D. On
April 20, 1995, the district court dismissed by order and final judgment all of Boston's federal law claims
with prejudice as being barred by collateral estoppel, and dismissed Boston's state law claims without
prejudice. On May 8, 1995, Boston filed her complaint in the Circuit Court of the First Judicial District of
Hinds County claiming wrongful death.
¶30. Because Boston spent over five years in the federal court system pursuing this action and almost eight
years passed from the time this case accrued to when she filed a complaint in state court, this Court must
simply determine if Mississippi's six (6) year statute of limitations was tolled while Boston was in federal
court.
¶31. This Court has previously held a trial court in error for ruling that claims were time-barred due to the
running of the statute of limitations during the pendency of a case in federal court. Norman v. Bucklew,
684 So. 2d 1246 (Miss. 1996). This Court detailed a situation similar to the case sub judice in Norman:
The events giving rise to these claims occurred on January 10, 1990. Thus, the three years would
have expired on January 11, 1993. Norman filed his federal court claim on January 8, 1993, which
tolled the statute of limitations when pendent jurisdiction was invoked. The fact that these claims were
subsequently dismissed without prejudice does not prevent the statute of limitations from having been
tolled. Accordingly, the state trial court erred in apparently imposing the affirmative defense of the
three-year statute of limitations.
The malicious prosecution claim was also dismissed without prejudice by the district judge on July 7,
1993. The grand jury ultimately dismissed the criminal affidavit on October 29, 1992. Malicious
prosecution claims are governed by a one-year statute of limitations. Therefore, Norman had until
October 29, 1993 to file a claim in state court on this ground as noted by the district judge. Norman
filed his state court claim on October 14, 1993. Thus, he tolled the malicious prosecution claim.
Therefore, the state trial judge erred on this issue in holding to the contrary.
Id. at 1256. This Court referred to federal case law in making its determination:
Additionally, the United States Supreme Court, in Cooter & Gell v. Hartmarx Corporation, 496
U.S. 384, 396, 110 S. Ct. 2447, 2456, 110 L. Ed. 2d 359 (1990) stated: " '[D]ismissal ... without
prejudice' is a dismissal that does not 'operat[e] as an adjudication upon the merits,' Rule 41(a)(1),
and thus does not have a res judicata effect." See also Satsky v. Paramount Communications,
Inc., 7 F.3d 1464, 1468 (10th Cir.1993).
Id. at 1255.
¶32. In accordance with this Court's determination in Norman, we conclude that the six (6) year statute of
limitations was tolled while the case was in federal court and that the trial court erred in determining that
Boston's claims were time-barred.
III. DID THE CIRCUIT COURT CORRECTLY CONCLUDE THAT IF ANY OF
BOSTON'S CLAIMS SURVIVED THE STATUTE OF LIMITATIONS BAR, THE
UNADJUDICATED STATE LAW CLAIMS WERE BARRED BY THE PRINCIPLES OF
RES JUDICATA AND COLLATERAL ESTOPPEL?
¶33. The state law claims contained in the federal actions brought by Boston were dismissed without
prejudice by the United States District Court for the Northern District of Mississippi in orders dated July
30, 1990, August 21, 1990 and April 20, 1995. Once this claim was in Mississippi state court and venue
was transferred, the Lafayette County Circuit Court granted a motion to dismiss and summary judgment in
favor of the defendants, determining "that the claims of the plaintiff against all defendants are barred by
application of res judicata and/or principles of collateral estoppel." Regarding a dismissal without prejudice
in relation to res judicata, this Court has followed the United States Supreme Court:
Additionally, the United States Supreme Court, in Cooter & Gell v. Hartmarx Corporation, 496
U.S. 384, 396, 110 S. Ct. 2447, 2456, 110 L. Ed. 2d 359 (1990) stated: " '[D]ismissal ... without
prejudice' is a dismissal that does not 'operat[e] as an adjudication upon the merits,' Rule 41(a)(1),
and thus does not have a res judicata effect." See also Satsky v. Paramount Communications,
Inc., 7 F.3d 1464, 1468 (10th Cir.1993).
Norman v. Bucklew, 684 So.2d. at 1254. Likewise, in Harris v. Board of Trustees, 731 So. 2d 588,
589-90 (Miss. 1999), this Court found that collateral estoppel is inapplicable to state law claims that have
been dismissed without prejudice in federal court. Therefore, the trial court erred in dismissing Boston's
state claims based upon the doctrines of res judicata or collateral estoppel.
IV. DID THE CIRCUIT COURT CORRECTLY CONCLUDE THAT DEFENDANTS
PLUNK AND THEOBALD WERE ENTITLED TO QUASI-JUDICIAL IMMUNITY IN
ACCORDANCE WITH MISSISSIPPI LAW?
¶34. Two of the defendants Boston filed suit against were Lafayette County Chancery Clerk Bill Plunk and
Lafayette County deputy chancery clerk Vera Lee Theobald. In her complaint, Boston alleges that Plunk
and Theobald were negligent in the following ways:
(a) in failing to schedule the complete medical and psychiatric examination within 24 hours as
mandated by the July 10, 1987 order to the Chancery Court of Lafayette County, Mississippi;
(b) in failing to advise [Decedent's] family members that the complete medical and psychiatric
examination as ordered by the Chancery Court of Lafayette County, Mississippi was not scheduled
within 24 hours so as to afford family members the opportunity to make other arrangements;
(c) in breaching their affirmative duties under the special relationship with [Decedent] to insure
[Decedent] received the medical and psychiatric examination and treatment;
(d) in failing to advise [Decedent's] medical doctor and Mental Health officials of her confinement;
(e) in failing to learn, investigate and discover [Decedent's] serious medical conditions and needs; and
(f) other negligence to be learned through discovery and offered at the trial of this case.
¶35. Decedent was detained after her sister signed an affidavit which stated that Decedent presented a
danger to herself and her newborn child. Once the affidavit was signed, the chancellor validly appointed
Mel Davis Special Master over the initial detainment proceedings. Davis determined that the Decedent
should be temporarily detained in the county jail pending a professional psychiatric and medical examination,
and ordered the chancery clerk to issue a writ of custody so that Decedent could be detained. Plunk, the
Chancery Clerk, complied and issued the writ. Davis also appointed an attorney to represent the Decedent
in any future commitment proceedings and appointed two medical professionals to examine and evaluate the
Decedent's mental and physical condition within the next twenty-four hours.
¶36. The writ to take custody was issued at approximately ten o'clock on a Friday morning. Although the
court-appointed physicians were ordered to examine the Decedent within twenty-four hours, the deputy
chancery clerk called the mental health center and scheduled the Decedent's examination for 9:30 the
following Monday morning. The Decedent died at approximately 11:30 that Sunday morning in between
half-hourly visual inspections of the jailor on duty. According to submitted expert testimony, the blood clots
which caused the Decedent's death formed at least twenty-four hours and probably several days prior to
her death, and likely would have been detected and effectively treated had medical professionals examined
her within twenty-four hours of her detainment.
¶37. The Lafayette County Circuit Court decided that Plunk and Theobald were entitled to "quasi judicial
immunity under Mississippi law." It is this determination that Boston now appeals.
¶38. Miss. Code Ann. §§ 41-21-67 & -69 authorize chancellors to direct the chancery clerk to issue a writ
to take custody and schedule a mental and physical examination of the person who is in need of mental
treatment. Section 41-21-67(1) states in pertinent part:
(1) Whenever such affidavit as is provided for in Section 41-21-65 shall be filed with the chancery
clerk, the clerk, upon direction of the chancellor of the court, shall issue a writ directed to the sheriff
of the proper county to take into his custody the person alleged to be in need of treatment and to
bring such person before the clerk or chancellor, who shall order pre-evaluation screening and
treatment by the appropriate community mental health center established pursuant to Section 41-19-
31 and for examination as set forth in Section 41-21-69.
Section 41-21-69(2) states in pertinent part:
(2) Such examination shall be conducted and concluded within twenty-four (24) hours after the order
for examination and appointment of attorney. . .
¶39. Boston asserts that Plunk and Theobald violated their mandatory, non-discretionary duties of their
office when they did not schedule Decedent's physical and psychiatric examination within the twenty-four
(24) hour period as outlined in the statute. Boston refers to Poyner v. Gilmore, 171 Miss. 859, 158 So.
922 (1935), where this Court discussed the ministerial versus judicial duties of public officers:
This Court has repeatedly held that our courts have the power to hear claims that public officials have
violated their mandatory, non-discretionary duties of office. Poyner v. Gilmore, 171 Miss. 859, 158
So. 922 (1935). In Poyner this Court stated that, "While no inflexible rule can be laid down for
determining in every case whether or not an act of a public officer is ministerial or judicial,
'the most important criterion, perhaps, is that the duty is one which has been positively
imposed by law and its performance required at a time and in a manner or upon conditions
which are specifically designated, the duty to perform under the conditions specified not
being dependent upon the officer's judgment or discretion....' "
Fordice v. Thomas, 649 So. 2d 835, 840 (Miss. 1995) (emphasis added).
¶40. In Davis v. Little, 362 So. 2d 642 (Miss. 1978), the Court expanded on this issue:
The most commonly recognized limitation is the distinction between discretionary acts as opposed to
ministerial acts. Under this distinction the official is immune only where that which he does in the
performance of his lawful duties requires "personal deliberation, decision and judgment."
See Prosser, Law of Torts s 132 (4th ed. 1971).
362 So. 2d at 643 (emphasis added).
¶41. Evans v. Trader, 614 So. 2d 955 (Miss. 1993), effectively outlines the limited immunity an officer of
the state possesses:
Under Mississippi common law, an officer of the state enjoys only a limited immunity from tort liability.
An officer has no immunity to a civil action for damages if his breach of a legal duty causes
injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and
the governmental actor greatly or substantially exceeds his authority and in the course thereof causes
harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official
has no immunity when sued upon a tort that has nothing to do with his official position or decision-
making function and has been committed outside the course and scope of his office.
Id. at 957 (emphasis added).
¶42. Further, this Court has stated:
Qualified immunity acts to protect prison officials only when they were performing a discretionary
function as opposed to a ministerial function. The distinction between the two is "that [if] the duty is
one which has been positively imposed by law and in a manner or upon conditions which are
specifically designated, the duty to perform under the condition specified, not being
dependent upon the officer's judgment or discretion, the act and discharge thereof is
ministerial."
McFadden v. State, 580 So. 2d 1210, 1216 (Miss. 1991) (Citing McFadden v State, 542 So. 2d 871,
877 (Miss. 1989)) (emphasis added).
¶43. This Court has previously found officers of the state to be exposed to liability for not performing their
ministerial duties. See Barrett v. Miller, 599 So. 2d 559 (Miss. 1992) (where this Court concluded that
Lauderdale County deputies were not entitled to immunity because "[t]he execution of a search warrant was
a ministerial act and required no discretionary decision-making. . . ."); Ellsworth v. Busby, 172 Miss.
399, 160 So. 575, 575-76 (Miss. 1935) (where the Court determined that a chancery clerks failure to sign
a probate claim as required by law was a ministerial act and the doctrine of quasi-judicial immunity did not
apply).
¶44. In the present case, both Miss. Code Ann. §§ 41-21-67 and 41-21-69 use the word "shall" in
explaining the duties and requirements of the chancery clerk to schedule a medical and psychiatric
examination within twenty-four (24) hours. This Court has held that the use of the word "shall" is a
mandatory directive, Estate of Stowers v. Jones, 678 So. 2d 660, 662 (Miss. 1996), making Plunk and
Theobald's duty to schedule a medical and psychiatric examination within twenty-four (24) hours of
Decedent's detainment a ministerial function, which would disqualify them from the protection of qualified
immunity. As to this issue the trial court was in error.
¶45. As to all other allegations of negligence on the part of Plunk and Theobald as set out in Boston's
complaint, this Court will not address these issues as they were not argued by the appellant or supported by
any authority. This Court has long held that it is under no obligation to consider assignments of error
unsupported and unaddressed in appellant's submitted brief. Terrell v. Mississippi Bar, 662 So. 2d 586,
591-92 (Miss. 1995). See also Touchstone v. Touchstone, 682 So. 2d 374 (Miss. 1996); Ellis v.
Ellis, 651 So. 2d 1068 (Miss. 1995); James W. Sessums Timber Co. v. McDaniel, 635 So. 2d 875
(Miss. 1994); Morgan v. City of Ruleville, 627 So. 2d 275 (Miss. 1993); Van Slyke v. Board of of
Trustees of State Institutions of Higher Learning, 613 So. 2d 872 (Miss. 1993); E.L. Bruce Co. v.
Brogan, 175 Miss. 208, 166 So. 359 (1936).
V. DID THE CIRCUIT COURT CORRECTLY CONCLUDE THAT LAFAYETTE
COUNTY WAS IMMUNE FROM TORT LIABILITY CONSIDERING THE LAW THAT
WAS IN EFFECT AT THE TIME THE ACTION ACCRUED?
¶46. The record shows that at the time of Decedent's death, Lafayette County had in place a policy of
liability insurance on July 12, 1987, the date this case accrued. It is for this Court to determine if there
existed a statute at the time this case accrued which authorized Lafayette County to purchase insurance, and
if so, whether the statute waived immunity for the county up to the limits of the policy.
¶47. Boston, referring to this Court's ruling in Winters v. Lumley, 557 So. 2d 1175 (Miss. 1990),
contends that the purchase of such a policy was authorized by statute and that sovereign immunity for
Lafayette County should be waived up to the amount and extent of the policy limits. Winters dealt with
Miss. Code Ann. § 19-7-8 (Supp. 1988), which stated in part:
The board of supervisors of any county is authorized, in its discretion, to purchase general liability
insurance coverage for its members and county employees in the official performance of their elective
or appointive duties. Said general liability policy shall be written by the agent or agents of a company
or companies authorized to do and doing business in the State of Mississippi. The monetary limits of
any such policy shall be set by the board of supervisors in amounts they feel are adequate and
reasonable in light of existing circumstances. The premiums on such policies shall be paid from the
county general fund or from any other available county funds.
If liability insurance is in effect in such county, such county may be sued by anyone affected
to the extent of such insurance carried; provided, however, that immunity from suit is only
waived to the extent of such liability insurance carried and a judgment creditor shall have
recourse only to the proceeds or right to proceeds of such liability insurance. No attempt shall
be made in the trial of any case to suggest the existence of any insurance which covers in whole or in
part any judgment or award rendered in favor of a claimant, but if the verdict rendered by the jury
exceeds the limit of applicable insurance, the court, on motion, shall reduce the amount of said
judgment as against the county only and not as to joint tort-feasors, if any, to a sum equal to the
applicable limit stated in the insurance policy.(2)
Id. at 1177-78 (emphasis added).
¶48. A review of the session laws from the time period in question shows that the pertinent language of
Miss. Code Ann. § 19-7-8, as recited in Winters, was in effect at the time this action accrued, removing
immunity for Lafayette County up to the policy limits that were set out in the insurance policy Lafayette
County had purchased. 1985 Miss. Laws ch. 474 §§ 40.
CONCLUSION
¶49. Based on the forgoing analysis, we affirm as to the issue of venue, and reverse and remand finding that
Boston's state law claims are not barred, either by the statute of limitations or by res judicata and collateral
estoppel, that defendants Plunk and Theobald are not entitled to quasi-judicial immunity for their failure to
schedule Decedent's physical and psychiatric examination within the twenty-four (24) hour period as
outlined in the statute, and that Lafayette County is not entitled to sovereign immunity up to the policy limits
found in the insurance policy at the time Boston's state law claims occurred. Therefore, we affirm the order
of the Hinds County Circuit Court transferring venue to Lafayette County. We
reverse the judgment of the Lafayette County Circuit Court, and we remand this case to that court for a trial
consistent with this opinion.
¶50. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
SMITH, P.J., WALLER AND DIAZ, JJ., CONCUR. McRAE, P.J., AND GRAVES, J.,
CONCUR IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. COBB AND CARLSON, JJ., NOT PARTICIPATING.
1. In 1989 § 15-1-49 was changed to a three-year period of limitation. See 1989 Miss. Laws ch. 311, § 3.
2. This statute was repealed by 1992 Miss. Laws ch. 491, §§ 11, eff. October 1, 1993, but is pertinent to
this case because of the date this action accrued. Miss. Code Ann. § 19-7-8 (2000).