Mississippi Transportation Commission v. Rhonda Allday ( 1994 )


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  •                         IN THE SUPREME COURT OF MISSISSIPPI
    NO. 94-CA-00971-SCT
    MISSISSIPPI TRANSPORTATION COMMISSION, EX
    REL., MIKE MOORE, ATTORNEY GENERAL, STATE
    OF MISSISSIPPI
    v.
    RHONDA ALLDAY
    DATE OF JUDGMENT:                             03/22/94
    TRIAL JUDGE:                                  HON. BILLY JOE LANDRUM
    COURT FROM WHICH APPEALED:                    JONES COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                       OFFICE OF THE ATTORNEY GENERAL
    BY: CHARLENE PIERCE
    ATTORNEYS FOR APPELLEE:                       LARRY O. NORRIS
    JOHN M. DEAKLE
    NATURE OF THE CASE:                           CIVIL - OTHER
    DISPOSITION:                                  REVERSED AND RENDERED- 5/14/98
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:                               10/15/98
    EN BANC.
    PRATHER, CHIEF JUSTICE, FOR THE COURT:
    ¶1. This appeal arises from a March 22, 1994 order of the Jones County Circuit Court, finding that
    the Mississippi Department of Transportation caused or contributed to injuries sustained by Rhonda
    Allday in a September 13, 1992 accident. At issue is the state of the law of sovereign immunity on
    the date of the accident. This Court's decision in Presley v. Mississippi State Highway Commission,
    
    608 So. 2d 1288
     (Miss. 1992), finding the immunity provisions of Miss. Code Ann. § 11-46-6
    unconstitutional, was handed down on August 31, 1992 and the petition for rehearing in that case
    was denied on December 3, 1992. In response to Presley, a revised version of § 11-46-6 was passed
    by the Legislature on September 16, 1992, three days after Allday's accident. The Transportation
    Commission, aggrieved by the judgment against it, therefore asks this Court to consider:
    I. Whether the decision in Presley v. Mississippi State Highway Commission should be applied
    prospectively from the time the initial opinion was issued or from the time the petition for
    rehearing was denied; and
    II. Whether the retroactive declaration of sovereign immunity in § 11-46-3 bars sovereign
    immunity claims against the State and its subdivisions which predate July 1, 1993?
    Allday, on cross-appeal, challenges the adequacy of the jury's $160,000 judgment, which made no
    provision for pain and suffering or disfigurement, and the circuit court's denial of her motion for
    additur. Accordingly, she raises the following issue:
    I. Whether the lower court committed error by refusing to grant an additur;
    A. Whether the jury was bound under the law to award damages for pain and suffering and
    disfigurement; and
    B. Whether the jury was bound to award damages for total loss of wage-earning capacity?
    STATEMENT OF THE FACTS
    ¶2. Twenty-one year old Rhonda Allday was seriously injured on the morning of September 13,
    1992, when the car her husband was driving struck a pothole on Highway 11 near their home in
    Moselle, Mississippi, and careened into a concrete bridge abutment. She sustained permanent and
    disfiguring injuries to her jaw and hip; a broken ankle and wrist; and internal injuries which required
    the removal of her spleen and repair of her liver. She was hospitalized for two months and remains
    limited in her activities because of her injuries.
    ¶3. Allday filed suit against the Mississippi Transportation Commission on January 28, 1993 in the
    Jones County Circuit Court, alleging that the Commission was negligent in its construction and
    maintenance of the highway and the bridge. The Commission responded with a motion to dismiss,
    asserting that Allday's claim against it was barred by sovereign immunity. The circuit court denied the
    Commission's motion on August 19, 1993.
    ¶4. Trial was set for March 7, 1994. On February 2, 1994, the Commission filed a motion for
    summary judgment, again asserting that suit against it was barred by sovereign immunity. It further
    asserted that the agency had not purchased liability insurance or otherwise waived its immunity.
    Allday opposed the motion, relying upon this Court's decision in Presley v. Mississippi State
    Highway Commission, 
    608 So. 2d 1288
     (Miss. 1992). After a two-day trial, the jury found that the
    Commission "was negligent and that such negligence caused or contributed to" Allday's injuries. The
    word "contributed" was underlined on the special verdict form. Allday was awarded $110,000 for
    medical expenses (past and future) and $50,000 for lost earning capacity (past and future).The jury
    expressly provided no award for pain and suffering, physical or mental, loss of capacity for enjoyment
    of life or bodily disfigurement.
    ¶5. The Commission filed a motion for J.N.O.V., while Allday filed a motion for additur, or in the
    alternative, for a new trial on the issue of damages. On March 28, 1994, the circuit court entered the
    final judgment as announced in the jury's verdict. Both parties timely appealed and cross-appealed to
    this Court.
    LAW
    I. WHETHER THE DECISION IN PRESLEY v. MISSISSIPPI STATE HIGHWAY
    COMMISSION SHOULD BE APPLIED PROSPECTIVELY FROM THE TIME THE
    INITIAL OPINION WAS ISSUED OR FROM THE TIME THE PETITION FOR
    REHEARING WAS DENIED; AND
    II. WHETHER THE RETROACTIVE DECLARATION OF SOVEREIGN IMMUNITY IN §
    11-46-3 BARS SOVEREIGN IMMUNITY CLAIMS AGAINST THE STATE AND ITS
    SUBDIVISIONS WHICH PREDATE JULY 1, 1993?
    ¶6. The Transportation Commission raises a two-fold argument in support of its contention that
    Allday's claim against it was barred by sovereign immunity. It first asserts that this Court's
    prospective ruling in Presley v. Mississippi State Highway Commission, 
    608 So. 2d 1288
     (Miss.
    1992) (decided on August 31, 1992 and petition for rehearing denied on December 3, 1992),
    precludes its application to a cause of action arising on September 13, 1992. The Commission
    contends that Presley's prospective-only dictate should apply from the time the petition for rehearing
    was denied, after Allday's accident. The Commission also asserts that the Legislature's retroactive
    amendment on September 16, 1992 of Miss. Code Ann. § 11-46-3 revives the cloak of immunity
    taken away by Presley. This Court agrees with the Commission's first argument, and we accordingly
    find it unnecessary to address its second argument.
    ¶7. Mississippi Rule of Appellate Procedure 41(a) provides that:
    The mandate of the Supreme Court shall issue 21 days after the entry of judgment unless the
    time is shortened or enlarged by order. .... The timely filing of a motion for rehearing will stay
    the mandate until disposition of the motion, unless otherwise ordered by the Court. If the
    motion is denied, the mandate will issue seven (7) days after entry of the order denying the
    motion unless the time is shortened or enlarged by order.
    The petition for rehearing in Presley was denied on December 3, 1992, and this Court's mandate was
    issued on December 11, 1992.
    ¶8. In Decker v. Bryan Brothers Packing Company, 
    249 Miss. 6
    ,9, 
    162 So. 2d 648
    , 650 (1964), this
    Court held that, for the purposes of that case, "[t]he award became due on the date this Court
    overruled the suggestion of error of appellees to our original judgment and this was the date the final
    judgment of this Court became final and binding on all parties." This Court also noted in Decker that
    "[t]his Court has the inherent right to determine the finality of its own decisions . . .". Decker, 249
    Miss. at 10. Thus, this Court is not irrevocably bound to any specific date of finality with regard to all
    cases, but, as a general matter, an opinion of this Court should not be considered final until the
    parties and this State's bar have had an opportunity to respond to the opinion.
    ¶9. Allday would have this Court create a brief window of opportunity for the abolishment of
    sovereign immunity prior to the Legislature's re-enactment of sovereign immunity in response to
    Presley. This Court considers it improper, however, to enforce our holding in Presley regarding this
    important issue of Mississippi law prior to the final resolution of the case. This Court therefore holds
    that our decision in Presley, finding Miss. Code Ann. § 11-46-6 to be unconstitutional, did not
    become effective until the petition for rehearing was denied on December 3, 1992. As in Decker, this
    date was the date on which "this Court overruled the suggestion of error of appellees to our original
    judgment and this was the date the final judgment of this Court became final and binding on all
    parties." Decker, 249 Miss. at 9.
    ¶10. Given that the present cause of action arose on September 13, 1992, this Court should properly
    apply pre-Pruett law to the facts of the present case pursuant to § 11-46-6. Given that there is no
    indication that any of the traditional exceptions to the defense of sovereign immunity applies to the
    case at bar, this Court finds that the Commission did in fact enjoy the protection of sovereign
    immunity in the present case. The judgment of the trial court below is accordingly reversed and
    judgment rendered in favor of the Commission. In light of this reversal, this Court considers it
    unnecessary to consider the remaining points of error on appeal.
    ¶11. REVERSED AND RENDERED.
    SULLIVAN, P.J., BANKS, ROBERTS, SMITH AND MILLS, JJ., CONCUR. McRAE, J.,
    DISSENTS WITH SEPARTE WRITTEN OPINION JOINED BY PITTMAN, P.J. WALLER,
    J., NOT PARTICIPATING.
    McRAE, JUSTICE, DISSENTING:
    ¶12. I disagree with the majority's conclusion that the Transportation Commission was protected by
    sovereign immunity on the date of Allday's accident. Allday was injured on September 13, 1992,
    three days before the Legislature passed a revised version of Miss. Code Ann. § 11-46-6 and two
    weeks after our decision in Presley v. Mississippi State Highway Comm'n, 
    608 So. 2d 1288
     (Miss.
    1992). Since Presley was prospective, there is a window period between the time we found the
    statute unconstitutional and when the legislature attempted to remedy the problem. Moreover,
    because only a plurality of this Court approved the prospective application of the decision in that
    case, that part of the decision noting its prospectiveness had no precedential value until Coplin v.
    Francis, 
    631 So. 2d 752
    , 755 (Miss. 1994). See Churchill v. Pearl River Basin Development
    District, 
    619 So. 2d 900
    , 904-905 (Miss. 1993)("plurality vote does not create a binding result," so
    Part II of Presley decision, addressing prospective application, has no precedential value). The circuit
    court therefore properly allowed the case to go to trial and the only issue remaining to be resolved is
    whether the jury verdict adequately compensated Allday for her injuries.
    ¶13. The majority opinion neglects to point out that the Commission raised the identical arguments in
    an interlocutory appeal from the Yazoo County Circuit Court's denial of its motion to dismiss a
    similar claim against it arising from a September 4, 1992 accident. In that case, the circuit court's
    decision was affirmed by an unpublished order of this Court. Mississippi Transportation Comm'n v.
    Murtagh, 
    659 So. 2d 893
     (Miss. 1995). Now, almost three years later, after a jury trial which
    resulted in an award of damages, we find in a published opinion that sovereign immunity bars a cause
    of action which arose nine days prior to Murtagh's accident, but still within the same window
    between this Court's decision in Presley on August 31, 1992 and the Legislature's repeal of the
    statute found unconstitutional and its passage of the revised version of § 11-46-6 on September 16,
    1992. That our unpublished orders and opinions are of no precedential value does not warrant
    conflicting results where the facts are so similar and the same issues have been raised.
    ¶14. Rhonda Allday was injured on September 13, 1992. Since Presley was decided on August 31,
    1992, her cause of action accrued after our decision in that case, which a plurality of this Court held
    to apply prospectively. We are not bound, therefore, to apply pre- Pruett case law. The Legislature's
    response to Presley, a revised version of §11-46-6, has no bearing on the case sub judice, since it
    was enacted on September 16, 1992, after Allday's accident. Both art. I, § 10 of the United States
    Constitution and art. III, § 16 of the Mississippi Constitution of 1890 restrict the retroactive
    application of new laws. Stamper v. Edwards, 
    607 So. 2d 1141
    , 1148 (Miss. 1992). As this Court
    stated in State ex rel. Moore v. Molpus, 
    578 So. 2d 624
    , 643 (Miss. 1991), "[w]e take it as an article
    of faith and law that ex post facto laws are bad practice." Application of the revised statute,
    therefore, is an improper retroactive application of the law.
    ¶15. The majority holds that the prospective application of Presley dates from the issuance of the
    December 11, 1992 mandate denying the petition for rehearing,(1) in conflict with our internal rules as
    we apply them to the 270/180 day statute, wherein we base compliance with our deadlines on the
    date of the first decision of the court rather than the date of the mandate. Relying on Decker v.
    Bryan Brothers Packing Co., 
    249 Miss. 6
    , 
    162 So. 2d 648
     (1964), the majority then suggests that
    "this Court is not irrevocably bound to any specific date of finality with regard to all cases, but, as a
    general matter, an opinion of this Court should not be considered final until all the parties and this
    State's bar have had an opportunity to respond to the opinion." Such flawed logic invites ambiguity in
    determining the finality of judgments. It is a particularly ironic finding in this case, where the
    Legislature responded by passing a revised statute just two weeks after the initial decision was
    handed down, without awaiting the outcome of the petition for rehearing. Moreover, for the purpose
    of interpreting our own internal rules, we have defined "opinion on the merits" as "the first decision
    announced by the Court and DOES NOT contemplate a decision/opinion on rehearing or the
    issuance of the mandate."(2) (emphasis in original).
    ¶16. In light of our unpublished order in Murtagh, Allday's equal protection rights have been
    sacrificed to protect the Legislature's actions. However, the dictates of our constitution take
    precedence over our statutes and case law. While I find that the case should be remanded for
    reconsideration of the damages issues raised in Allday's appeal, the majority would do well to affirm
    the case in an unpublished opinion or order, consistent with its disposition of Murtagh. We
    apparently found that sovereign immunity did not bar that action. There is no reason why we should
    find to the contrary in this case. Accordingly, I dissent.
    PITTMAN, P.J., JOINS THIS OPINION.
    1. Now referred to as a Motion for Rehearing.
    2. March 3, 1998 Letter from Chief Justice Lenore L. Prather, Supreme Court of Mississippi, to
    Chief Judge Billy G. Bridges, Court of Appeals of the State of Mississippi, regarding construction of
    the 270/180 day statute as determined at the February 25, 1998 Administrative En Banc Session of
    the Supreme Court.