J.P. Milam v. Ann Kelly ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01760-COA
J.P. MILAM APPELLANT
v.
ANN KELLY AND JIM KELLY APPELLEES
DATE OF JUDGMENT: 11/03/2017
TRIAL JUDGE: HON. WILLIAM H. SINGLETARY
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL VERDIER CORY JR.
ATTORNEYS FOR APPELLEES: DOUGLAS E. LEVANWAY
MARK C. CARROLL
ERIC JOSEPH DILLON
CORY LOUIS RADICIONI
SCOTT CHARLES CAMPBELL
CHARLES EDWARD COWAN
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 07/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, P.J., FOR THE COURT:
¶1. J.P. Milam filed a complaint against the City of Jackson, alleging that the City caused
storm-drainage water to flood his home. Milam later amended his complaint to add his
adjoining neighbors Jim and Ann Kelly as defendants. The Kellys moved for summary
judgment, arguing that Milam’s claim was barred by the statute of limitations and that Milam
could not meet his burden of proof on his claims against the Kellys. The Hinds County
Chancery Court entered an order granting summary judgment after finding that Milam’s
claim against the Kellys was barred by the statute of limitations and that Milam failed to
provide evidence in support of his claims.1
¶2. Milam now appeals the chancellor’s order granting summary judgment and asserts the
following assignments of error: (1) the chancellor improperly applied the discovery rule; (2)
Milam’s claims of injunction, negligence, nuisance, and trespass were continuing torts that
tolled the statute of limitations; (3) new claims for injunction, negligence, nuisance, and
trespass accrued each time Milam’s house flooded; (4) fraudulent concealment and equitable
estoppel tolled the statute of limitations; and (5) the chancellor erred in finding that Milam
failed to set forth facts in support of his claims.
¶3. Finding no error, we affirm the chancellor’s order granting summary judgment.
FACTS
¶4. In 2008, Milam purchased a home located on Sheffield Drive2 in Jackson, Mississippi.
The Kellys owned the adjoining property. Beginning in 2009, Milam suffered recurring
problems with flash flooding, which caused water to enter his home. During the first
1
Trenton Milam, Milam’s former wife, was an original plaintiff in this matter.
Following her divorce from J.P., Trenton moved to be substituted/dismissed. Pursuant to
the terms of their property settlement agreement following the divorce, Trenton assigned all
claims in this matter to J.P. The record contains no order granting Trenton’s request that she
be dismissed and discharged as a plaintiff in this case. However, Trenton filed no notice of
appeal, and she is not a party to this appeal. For ease of reference, we will refer to the
appellant in the singular throughout the opinion, because J.P. is the only true party in interest
and appellant in this matter. We refer to J.P. as “Milam” throughout the rest of this opinion.
2
The record shows that Milam no longer owns the property at issue on Sheffield
Drive.
2
flooding incident, Milam was out of town when the water entered his home. When a second
flooding incident occurred on July 3, 2010, Milam took steps to investigate the matter. At
that time, Milam investigated the City of Jackson’s drains and drainage pipe between his
property and the Kellys’ property.
¶5. In 2011, Milam’s house flooded twice. Milam met with the Kellys in January 2011
to discuss the flooding. According to Milam, Jim Kelly blamed the City of Jackson’s
clogged storm-water drains for the flooding.
¶6. In 2012, Milam’s home flooded three times. In July 2012, Milam’s counsel wrote a
letter to the Kellys asking them to voluntarily provide information concerning the nature of
the work they had done in their back yard. Jim Kelly responded by sending a letter dated
August 3, 2012. In his letter, Jim Kelly stated that sometime in 2004, he connected a same-
sized drainage pipe to the one extending from Milam’s back yard. He confirmed that this
work was done years before the Milams moved in, and he stated that the previous owners had
never mentioned any flooding issues.
¶7. In the late summer or early fall of 2012, Milam spoke with his former neighbor
George Thompson about the flooding. Thompson informed Milam that he lived in the house
directly behind the Kellys’ house for thirty years. According to Thompson, in 2008 or 2009,
the Kellys replaced a chain link fence in their back yard with a wooden privacy fence. In
August 2012, Milam hired George Guest, an engineer, to investigate the potential cause of
flooding.
3
¶8. On October 26, 2012, Milam filed a complaint in chancery court against the City of
Jackson3 for negligence, trespass, and nuisance. Milam sought injunctive relief, asserting
that the City of Jackson allegedly diverted storm-drainage water across his property and
caused flooding to his home. The City of Jackson filed its answer and asserted that the
flooding was caused by the acts or omissions of others. Milam claims that the City of
Jackson suggested that the Kellys had installed a drainage pipe in 2004 that was too small.
Milam later discovered that the Kellys’ drainage pipe had exactly the same diameter as
Milam’s drainage pipe.
¶9. In November 2013, Milam again met with Guest and provided him with the additional
information he learned about the Kellys replacing their chain link fence with a wooden fence.
That same month, an engineer associated with Guest advised Milam by letter that “[w]hile
this wood . . . fence may not be solely responsible for your drainage problem, it does appear
to pose a significant problem for any surface storm drainage being conveyed in that drainage
way.”
¶10. On April 29, 2014, Milam amended his complaint to add the Kellys as defendants,
asserting that they interrupted and altered downstream storm-water flow by replacing a chain
link fence with a wooden fence, by changing the landscaping in their back yard, and by
filling in an open drainage ditch.
3
The record reflects that prior to the filing of this appeal, the City of Jackson was
voluntarily dismissed with prejudice as a party.
4
¶11. On March 8, 2017, the Kellys filed a motion for summary judgment. In their motion,
the Kellys argued that Milam’s claim was barred by the statute of limitations and that Milam
could not meet his burden of proof on his claims against the Kellys.
¶12. On November 3, 2017, the chancellor entered an order granting the Kellys’ motion
for summary judgment. The chancellor found that Milam’s cause of action accrued, at the
latest, on July 3, 2010—the date of the second flooding incident—and pursuant to
Mississippi Code Annotated section 15-1-49, Milam had three years from that date to file suit
against the Kellys. The chancellor held that because Milam filed his suit against the Kellys
approximately three years and ten months after the date the cause of action accrued, Milam’s
action was barred by the statute of limitations. The chancellor also found that Milam failed
to submit any evidence in support of his claim that the Kellys engaged in fraudulent
concealment and therefore his claim that the statute of limitations was tolled failed. The
chancellor later entered an order on December 13, 2017, certifying its November 3, 2017
order as a final judgment and dismissing Milam’s claims against the Kellys with prejudice.
¶13. Milam now appeals.
STANDARD OF REVIEW
¶14. We review a trial court’s grant of summary judgment de novo. Dodd v. Hines, 229
So. 3d 89, 95 (¶24) (Miss. 2017). Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
5
is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed
in the light most favorable to the party against whom the motion has been made, and the
moving party bears the burden of demonstrating that no genuine issue of fact exists.” Dodd,
229 So. 3d at 95 (¶24) (quoting Young v. Meacham, 999 So. 2d 368, 371 (¶13) (Miss. 2008)).
“If there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the
non-moving party.” Id.
¶15. We review issues of law, including those concerning statutes of limitation, de novo.
Ridgway Lane & Assocs. Inc. v. Watson, 189 So. 3d 626, 628 (¶8) (Miss. 2016).
DISCUSSION
I. Statute of Limitations: Discovery Rule
¶16. Milam argues that the chancellor erred in finding that his claim against the Kellys was
barred by the statute of limitations. Milam claims that the statute of limitations for
Mississippi Code Annotated section 15-1-49 was tolled by the discovery rule. Miss. Code
Ann. § 15-1-49(2). Milam asserts that the Mississippi Supreme Court has routinely applied
the discovery rule to situations where it would be impractical to require a layperson to
“ascertain” the negligence at the time it occurred. He cites two cases for support: Bennett
v. Hill-Boren, P.C., 52 So. 3d 364, 369 (¶13) ( (Miss. 2011), and Neglen v. Breazeale, 945
So. 2d 988, 990 (¶3) (Miss. 2006).
¶17. In his order granting summary judgment, the chancellor held as follows:
[Section] 15-1-49 (1) provides a general three (3) year statute of limitations for
claims of negligence such as those brought on behalf of [Milam]. Mississippi
6
case law is clear that the general three (3) year statute of limitations begins to
run “upon discovery of the injury, not discovery of the injury and its cause.”
Angle v. Koppers[] Inc., 42 So. 3d 1, 5 (Miss. 2010). [Milam’s] home first
flooded in 2009; conceivably, the cause of action could have accrued at that
time. On July 3, 2010, [Milam] experienced recurring flooding of [his] home.
At the latest, the statute of limitations began to run on the date of the
discovered recurring flooding. Although [Milam] submit[s] that the statute of
limitations did not begin to run until [he was] aware of some negligence on the
part of [the Kellys], the same is not supported by statutory or case law. “No
provision of [s]ection 15-1-49 provides that a plaintiff must have knowledge
of the cause of the injury before the cause of action accrues, initiating the
running of the statute of limitations.” Angle . . . , 42 So. 3d [at] 7[.] Therefore,
the cause of action accrued, at latest, on July 3, 2010, and [Milam] had three
(3) years from that date to file suit against [the Kellys]. The current action was
filed against [the Kellys] some four (4) years and ten (10) months after the
initial flooding and some three (3) years and ten (10) months after July 3,
2010. Accordingly, the action is barred by the applicable statute of limitations.
[Milam has] failed to submit any evidence that [the Kellys] engaged in
fraudulent concealment. Therefore, the claim of tolling fails as well.
¶18. Both Milam and the Kellys agree that the three-year statute of limitation set forth in
section 15-1-49 applies to Milam’s claims. Miss. Code Ann. § 15-1-49 (“All actions for
which no other period of limitation is prescribed shall be commenced within three (3) years
next after the cause of such action accrued, and not after.”). Section 15-1-49(2) provides a
tolling provision for the statute of limitations, known as the discovery rule: “In actions for
which no other period of limitation is prescribed and which involve latent injury or disease,
the cause of action does not accrue until the plaintiff has discovered, or by reasonable
diligence should have discovered, the injury.” The Mississippi Supreme Court further
clarified this rule, stating that “causes of action accrue upon discovery of the injury, not
discovery of the injury and its cause.” Ridgway Lane & Assocs. Inc., 189 So. 3d at 629 (¶9)
7
(internal quotation mark and emphasis omitted).
¶19. In discussing the language of the discovery rule set forth in section 15-1-49(2), this
Court recognized a latent injury “as one where the plaintiff is ‘precluded from discovering
harm or injury because of the secretive or inherently undiscoverable nature of the
wrongdoing in question or when it is unrealistic to expect a layman to perceive the injury at
the time of the wrongful act.’” Jackson v. Carter, 23 So. 3d 502, 505 (¶8) (Miss. Ct. App.
2009) (quoting PPG Architectural Finishes Inc. v. Lowery, 909 So. 2d 47, 50 (¶12) (Miss.
2005)). “[I]f a latent injury is not present, the discovery rule would not apply.” Jackson, 23
So. 3d at 505 (¶8).
¶20. “[T]he specific facts of the case will determine whether the plaintiff knew or
reasonabl[y] should have known that an injury existed.” Id. In determining whether a
plaintiff knew or reasonably should have known that he had an injury, the Court considers
the actions taken by the plaintiff. Am. Optical Corp. v. Estate of Rankin, 227 So. 3d 1062,
1068 (¶23) (Miss. 2017). When a genuine dispute exists as to when the plaintiff discovered
an injury, this becomes an issue of fact that must be decided by a jury. Id.; see also Am.
Optical Corp., 227 So. 3d at 1068-69 (¶24) (“Although occasionally, the question of whether
the suit is barred by the statute of limitations is a question of fact for the jury, the question
may be taken away from the jury if reasonable minds could not differ as to the conclusion
. . . .”).
¶21. Milam argues that even after his home flooded for a second time on July 3, 2010, all
8
he knew was that he had a flash flooding problem. Milam maintains that he did not know
if anyone was to blame for the flooding, what caused it, or if it was an act of God. At his
deposition, Milam testified that the previous owners of the home told him they had never had
any flash flooding issues while they lived there.4 Milam also asserts that flooding issues are
exceedingly complex and that there was no simple way for him to figure out why a house
suddenly had a flash flooding problem after more than thirty years without one. Milam
argues that he discovered no information before 2012 that would have reasonably given him
a good faith basis for filing a lawsuit against the Kellys.
¶22. The supreme court has held that “the discovery exception may be applied when it is
unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Punzo
v. Jackson County, 861 So. 2d 340, 346 (¶21) (Miss. 2003). Specifically, the supreme court
has established that “[w]ater flow and flood currents are subjects requiring expert knowledge
to fully comprehend.” Id. In Punzo, the supreme court discussed the application of the
discovery rule to toll the one-year statute of limitations set forth in the Mississippi Tort
Claims Act. Id. at 348 (¶30). In that case, Punzo, the plaintiff, suffered recurring flood
damage to his home over a three-year period. Id. at 343 (¶5). When Punzo discovered that
Jackson County had negligently altered a nearby bridge and that the negligent alteration of
the bridge was the cause of the flooding, he filed a complaint against the County. Id. at 346
4
Milam acknowledges that the home at issue flooded in 1979 and 1983, but he
maintains that these two prior events were not the result of flash floods.
9
(¶21). The circuit court found that the statute of limitations had run on Punzo’s claim and
granted the County’s motion for summary judgment. Id. On appeal, the supreme court stated
that “the discovery exception may be applied when it is unrealistic to expect a layman to
perceive the injury at the time of the wrongful act.” Id. The supreme court accordingly held
that the discovery rule should apply to Punzo’s cause of action because “water flow and flood
currents are subjects requiring expert knowledge to fully comprehend.” Id.5
¶23. In Jackson v. Carter, 23 So. 3d 502, 506 (¶13) (Miss. Ct. App. 2009), this Court
discussed the supreme court’s holding in Punzo. This Court recognized that “the latency of
Punzo’s injury . . . require[d] unique expertise to perceive the injury and identify the source
of the damage” and further summarized as follows:
Punzo’s injury stemmed from the negligent alteration of a nearby bridge by
Jackson County. Because the negligent alteration was secretive and inherently
undiscoverable, it was unrealistic for a layperson, such as Punzo, to identify
the source of his injury without unique knowledge or expertise. It was only
after a former Jackson County supervisor advised him of the modification to
the bridge that he was able to identify the problem and realize that the County
was responsible for the flooding. Accordingly, Punzo’s injury was latent . . .
and the discovery rule was properly applied.
Id. (citing Punzo, 861 So. 2d at 344 (¶14)).
5
Compare Sims v. Bear Creek Water Association, 923 So. 2d 230 (Miss. Ct. App.
2005). In Sims, after the plaintiffs suffered damage to their foundation, they hired a civil
engineer who confirmed that a problem with the water system was partially responsible for
the injury. Id. at 231 (¶2). The plaintiffs filed a complaint against the water association
more than three years after meeting with the engineer. Id. at (¶3). This Court refused to
apply the discovery rule because the plaintiffs had actual knowledge of their injury and facts
that would have allowed them to bring their claim prior to the expiration of the applicable
statute of limitations. Id. at 234 (¶14).
10
¶24. In Angle v. Koppers Inc., 42 So. 3d 1, 5 (¶9) (Miss. 2010), the case relied upon the
chancellor in his order granting summary judgment, the supreme court again discussed the
discovery rule. In Angle, the plaintiff brought claims against various companies, alleging
that she suffered injuries due to exposure to harmful levels of toxic chemicals released into
the environment from railroad cars, trucks, and a wood-treatment facility. Id. at 2 (¶2). The
trial court granted summary judgment in favor of the defendants after finding that the
plaintiff’s claims were time-barred pursuant to section 15-1-49. Angle, 42 So. 3d at 4 (¶5).
The plaintiff appealed, arguing that the trial court erred in finding that the statute of
limitations on her claims began to run when the plaintiff discovered, or was diagnosed with,
her various illness. Id. at 4 (¶7). The plaintiff asserted that the statute of limitations did not
begin to run until she discovered that her medical problems were the result of exposure to
toxic chemicals. Id. On appeal, the supreme court clarified that “the proper inquiry under
[section 15-1-49] [is] the plaintiff’s discovery of the injury or disease, . . . , not the discovery
of a causative relationship” between the action and the injury. Id. at 6 (¶12). The supreme
court found that “[the plaintiff’s] cause of action accrued at . . . the date she was last
diagnosed with an injury or disease,” explaining: “[n]o provision of [s]ection 15-1-49
provides that a plaintiff must have knowledge of the cause of the injury before the cause of
action accrues, initiating the running of the statute of limitations.” Id. at 6 (¶18). The
supreme court accordingly affirmed that the plaintiff’s claims were indeed time-barred. Id.
¶25. In the more recent case of City of Tupelo v. O’Callaghan, 208 So. 3d 556, 569 (¶36)
11
(Miss. 2017), the supreme court reiterated its prior holding in Angle and found that the
plaintiffs’ claims were barred by statute of limitations. In that case, the O’Callaghans, the
plaintiffs, filed suit against the City of Tupelo after a ditch near their property began to erode,
causing significant property damage and mold-related health issues. Id. at 558 (¶1). The
City of Tupelo filed an interlocutory appeal after the trial court found that a genuine issue of
material fact existed as to when the O’Callaghans knew or should have known about their
potential claim against the City. Id. at 561 (¶13).
¶26. On appeal, the O’Callaghans maintained that notice of their claim against the City of
Tupelo did not accrue until an engineer informed the O’Callaghans that their injury resulted
from ditch erosion. Id. at 569 (¶36). In its analysis, the supreme court stated that “[a]lthough
the discovery rule under 15-1-49(2) tolls the statute of limitations for (1) latent injuries or (2)
nonlatent injuries where the negligence that caused the injury is not known, an individual
may not take shelter in the discovery rule when reasonable minds could not differ that the
plaintiff possessed sufficient information to bring a claim.” Id. at 569-70 (¶39) (quoting
Raddin v. Manchester Educ. Found. Inc., 175 So. 3d 1243, 1249 (¶14) (Miss. 2015)). The
supreme court, citing Angle, 42 So. 3d at 5 (¶9), explained that “the plain language of
[s]ection 15-1-49 ‘supports the argument that the cause of action accrued upon discovery of
the injury, not discovery of the injury and its cause.’” Id. The supreme court determined that
the O’Callaghans’ “right to sue vested, at the earliest, . . . when [they] sought assistance from
Tupelo officials to review and remedy the damage to [their] home. It was at this point that
12
[they] affirmatively recognized [that their] walls were pulling apart and [their] home was
taking on water, regardless of the cause of those injuries.” Id. at (¶38). The supreme court
also determined that “[a]t the latest, the action ripened in 2008 when [the O’Callaghans] filed
[their] first formal claim against Tupelo, acknowledging the injury and . . . right to sue.” Id.The supreme court held that “reasonable minds hardly can dispute that [the plaintiffs were]
on notice of the injury as early as 2008, and because ‘no provision of [s]ection 15-1-49
provides that a plaintiff must have knowledge of the cause of the injury before the cause of
action accrues,’ awareness of the injury itself is enough to activate the notice period.’” Id.at (¶37) (quoting Angle, 42 So. 3d at 7 (¶18)). Notably, the supreme court held that “the
[plaintiffs’] lack of expert testimony and their apparent confusion surrounding the cause of
the damage to their home is of no consequence to this Court’s ruling.” Id. at 570 (¶40).
¶27. In applying the supreme court’s guidance in Angle and City of Tupelo to the facts
before us, we must affirm the chancellor’s determination that the latest date on which Milam
discovered the injury was July 3, 2010. Milam amended his suit to add the Kellys as
defendants on April 29, 2014, well over three years later. Therefore, Milam’s claim against
the Kellys is barred by the statute of limitations.
¶28. Since we find that Milam’s claim against the Kellys is barred by the statute of
limitations, we will not discuss Milam’s issue on appeal asserting that genuine issues of
material fact existed that precluded summary judgment.
II. Statute of Limitations: Continuing Torts/New Torts
13
¶29. Milam next claims that the chancellor erred by not finding that the obstruction of the
drainage path and resulting flash flooding problem was a continuing tort or, alternatively, that
each flood event constituted a new tort altogether. Milam maintains that the “tortious acts
in this case never ceased” because the Kellys continued to unlawfully obstruct the drainage
path.
¶30. As to his claim for an injunction, Milam asserts that the Kellys have not removed the
obstruction responsible for causing the flash flooding. In his negligence claim, Milam argues
that the Kellys remain in breach of their duty not to divert water from his lands and to use
reasonable care to prevent unnecessary injury to adjoining landowners. Milam asserts that
the claim for private nuisance is based on the Kellys’ invasion of the Milams’ interest in the
use and enjoyment of their property, which Milam maintains continues today. With regard
to the trespass claim, Milam submits that each time the alterations to the drainage path push
water back into his yard and home constituted a separate and distinct interference in his
exclusive possession of the property.
¶31. The Kellys assert that Milam failed to adequately raise the issue of continuing torts
in the chancery court. Our review of the record reveals that in his second amended
complaint, Milam asserted “continuing claims for negligence, trespass and nuisance against
the Kellys.” Milam requested “an award of actual and compensatory damages plus
pre-judgment and post-judgment interest at the legal rate.” Milam claimed that “[t]he Kellys
also owed the Milams a duty not to negligently alter the existing storm water drainage and
14
once notified to take corrective action.” Additionally, in his response to the Kellys’ motion
for summary judgment, Milam asserted the following:
The negligence of the [Kellys] is ongoing. Under Mississippi law, “[w]hen
any land owner diverts waters from his lands, he must use reasonable care to
prevent unnecessary injury to adjoining landowners. Sullivan v. Kolb, 742 So.
2d 771, 779 (Miss. Ct. App. 1999). “If lower riparian landowner obstructs the
flow of a stream or water course, thereby causing his upper riparian neighbor’s
lands to flood, the latter may secure judicial relief.” Georgia Pac. Corp. v.
Armstrong, 451 So. 2d 201, 205 (Miss. 1984). Moreover, “[r]edress may take
the form of an award of damages, temporary or permanent, or both, and an
injunction, mandatory or prohibitory, or both, as may be appropriate.” Id. In
the instant case, the Kelly[s’] failure to take steps to remedy the problem they
created once they were put on notice of the flash flooding problem, constituted
a separate and new act of negligence and/or wrongful conduct.
¶32. However, the Kellys argue that this language, coupled with the fact that Milam failed
to cite a single case applying the continuing tort doctrine, was insufficient to raise the issue
in the proceedings below. We disagree, and we turn to address Milam’s assignment of error
as to this issue.
¶33. In Humphries v. Pearlwood Apartments Partnership, 70 So. 3d 1133, 1135 (¶8) (Miss.
Ct. App. 2011), this Court examined “whether . . . flooding is a continuous tort sufficient to
toll the three-year statute of limitations.” In that case, the plaintiffs “[f]iled suit against
Pearlwood Apartments, alleging that Pearlwood negligently constructed and maintained its
property, which disrupted the natural flow of rain water and caused [the plaintiffs’] property
to flood.” Id. at (¶11). In its discussion, this Court recognized that
[a] ‘continuing tort’ is one inflicted over a period of time; it involves a
wrongful conduct that is repeated until desisted, and each day creates a
separate cause of action. A continuing tort sufficient to toll a statute of
15
limitations is occasioned by continual unlawful acts, not by continual ill effects
from an original violation.”
Id. (quoting Pierce v. Cook, 992 So. 2d 612, 619 (¶25) (Miss. 2008)). This Court explained
that “the continuing-tort doctrine will not be applicable where the harm results from one
wrongful act or omission.” Id. In Humphries, this Court ultimately found that “the
construction of the apartment complex was one event, not a repeated action,” and therefore
held that the continuing torts doctrine was not applicable. Id. This Court reiterated that
“[w]here the tortious act has been completed[,] the period of limitations will not be extended
on the ground of a continuing wrong.” Id. at (¶12) (quoting Peavey Elecs. Corp. v. Baan
U.S.A. Inc., 10 So. 3d 945, 955 (¶23) (Miss. Ct. App. 2009)).
¶34. Milam argues that the facts in Humphries are distinguishable from the present case
and that the holding in Humphries should be narrowly construed. Milam explains that
Humphries did not involve the diversion or obstruction of an existing drainage ditch and
pathway or raising the elevation of one’s property; rather, it involved the cutting of trees.
¶35. However, we find the precedent set forth in Humphries to be applicable to the case
before us. The Humphries court cited the supreme court’s opinion in Pierce, 992 So. 2d at
619 (¶25), for the proposition that “[a] continuing tort sufficient to toll a statute of limitations
is occasioned by continual unlawful acts, not by continual ill effects from an original
violation.” See also City of Tupelo, 208 So. 3d at 574 (¶53) (holding “that a continuous
and/or separate taking does not occur with each heavy rain, but that the taking continues from
the date the claimant discovers the injury until remedy or just compensation is received”).
16
Milam’s claims for injunction, negligence, nuisance, and trespass all stem from the flooding
of his home, and Milam alleges that the flooding is caused by the placement of Kellys’
wooden fence, which altered the flow of the storm water. We find that like Humphries, the
flooding of Milam’s home constitutes a continual ill effect, not a continual unlawful act.
Therefore, the continuing torts doctrine does not apply. We find no merit to Milam’s
argument that injunction, negligence, nuisance and trespass constituted continuing torts that
tolled the running of the statute of limitations under section 15-1-49.
III. Statute of Limitations: Equitable Estoppel and Fraudulent
Concealment
¶36. Milam next submits that the three-year statute of limitations should be tolled based
on the doctrine of fraudulent concealment or the doctrine of equitable estoppel. In his order
granting summary judgment, the chancellor held that Milam “failed to submit any evidence
that [the Kellys] engaged in fraudulent concealment. Therefore, the claim of tolling fails as
well.” On appeal, Milam argues that “there is no question” that the Kellys withheld
information that would have put a reasonable person on notice of the potential claims against
the Kellys.
¶37. The Kellys argue that Milam raises the doctrine of equitable estoppel for the first time
on appeal. After reviewing the record of the chancery court proceedings, we agree. We have
held that “[a] party is not allowed to raise an issue for the first time on appeal.” Luse v. Luse,
992 So. 2d 659, 663 (¶12) (Miss. Ct. App. 2008). Accordingly, Milam’s argument regarding
equitable estoppel is procedurally barred.
17
¶38. Turning to examine Milam’s argument regarding fraudulent concealment, the record
reflects that in his response to the Kellys’ motion for summary judgment, Milam asserted the
following:
Alternatively, the running of the statute of limitations was tolled based on the
doctrine of fraudulent concealment. Under Mississippi law, fraudulent
concealment of a cause of action tolls the running of the statute of limitations.
Myers v. Guardian Life Ins. Co. of America Inc., 5 F.Supp.2d 423, 431
(N.D.Miss. 1998). The fraudulent concealment doctrine “applies to any cause
of action.” Id. In order to establish fraudulent concealment, “there must be
shown some act or conduct of an affirmative nature designed to prevent and
which does prevent discovery of the claim.” Reich v. Jesco, Inc., 526 So.2d
550, 552 (Miss.1988). In the instant case the [Kellys] engaged in concealment
when they remained silent in 2011. They again failed to disclose the full
extent of the dirt work and changes they made to the drainage pathway in their
letter to [Milam’s] lawyer.
¶39. Mississippi Code Annotated section 15-1-67 (Rev. 2012) provides:
If a person liable to any personal action shall fraudulently conceal the cause of
action from the knowledge of the person entitled thereto, the cause of action
shall be deemed to have first accrued at, and not before, the time at which such
fraud shall be, or with reasonable diligence might have been, first known or
discovered.
The supreme court has held that “[w]hen a plaintiff uses fraudulent concealment to toll the
statute of limitations, he must prove the necessary elements of fraudulent concealment in
order to defeat a defendant’s motion for summary judgment.” Trustmark Nat’l Bank v.
Meador, 81 So. 3d 1112, 1119 (¶17) (Miss. 2012). In order “[t]o establish a claim of
fraudulent concealment, ‘there must be shown some act or conduct of an affirmative nature
designed to prevent and which does prevent discovery of the claim.’” Id. (quoting Reich v.
Jesco Inc., 526 So. 2d 550, 552 (Miss. 1988)). Specifically, “[t]he party is required to show
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that (1) some affirmative act of conduct was done and prevented discovery of the claim; and
(2) due diligence was performed on its part to discover the claim.” Id. (citing Sanderson
Farms Inc., 917 So. 2d at 790 (¶33)); see also Brown v. McKee, 242 So. 3d 121, 128 (¶24)
(Miss. 2018); Morgan v. Green-Save Inc., 2 So. 3d 648, 653 (¶12) (Miss. Ct. App. 2008)
(“Where the parties do not stand in a confidential or fiduciary relationship with one another,
an affirmative act of concealment is necessary” to establish a claim for fraudulent
concealment.).
¶40. Milam asserts that the Kellys engaged in fraudulent concealment when they “remained
silent” and failed to disclose the full extent of the dirt work and changes they made to the
drainage pathway in their letter to Milam’s lawyer. We recognize that “at the summary
judgment stage, [Milam] bore the burden to produce evidence establishing a triable claim for
fraudulent concealment.” Brown, 242 So. 3d at 130 (¶31). The record before us reflects that
in response to the Kellys’ motion for summary judgment, Milam filed a supplemental
affidavit from Ryan Cole. In his affidavit, Cole states that he was present at the January 2011
meeting between Milam and Jim Kelly. According to Cole, the purpose of the meeting was
to discuss the possible causes and solutions to Milam’s flooding issues. Cole stated that
Milam asked Jim Kelly if he knew of any changes in the area that may be causing flooding,
and Jim Kelly suggested that the storm-water storage drain maintained by the City of Jackson
was probably clogged. Cole further stated that “at no time during this conversation did . . .
[Jim] Kelly say anything about any changes or work that had been done in his own back
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yard.”
¶41. The record also contains the July and August 2012 correspondence between Milam’s
counsel and the Kellys. In a letter dated July 9, 2012, Milam’s counsel states:
It is my understanding that you previously enclosed a drainage ditch in your
back yard. The engineer that we have retained has requested that we obtain
information concerning the nature of the work that you had done.
[Milam] would obviously prefer to obtain this information without having to
use more formal means. Therefore, I would appreciate your contacting Mr.
Milam or me so that we can obtain the information we need within the next 10
days.
¶42. On August 3, 2012, the Kellys wrote to Milam’s counsel and stated as follows:
When my family and I moved into our current residence on Sheffield Drive,
some 16 years ago, we noticed that the neighboring property to my West (the
current Milam property), had a pipe running West/East across the back of it
which terminated onto our property. The pipe dumped water onto our property
during heavy rains. Several years later (over 8 years ago from today) I
connected a same diameter pipe to that pipe which allowed some of the rain
water to run across my property through the pipe, as opposed to running along
the top of the ground. In a nutshell, I did the same thing one of the former
neighboring (Milam lot) property owners had done, continuing his pipe across
my property to the other (East) side of my property. All of that was done years
before the Milams moved in. The Ridgeways, who lived in the now Milam
house immediately prior to the Milams moving in, never mentioned any
flooding issues to [us].
Beginning about a year ago, [Milam] let us know that he was having water
problems. He came to my front door wanting to talk about the water problem
he is having, which we discussed. Later, he called a neighbor meeting in his
den to discuss the matter, which I attended. He has had an architect or
inspector in our back-yard, which [we] allowed. [Milam] stated that in his
opinion, the city is causing his flooding. At one point he said that he believed
that all of our pipes (his uphill neighbor, his and mine) should be larger in
diameter. I have recently heard that [Milam] now claims that my pipe was put
in after he moved in. That is not true. [We] would like to assist however we
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can. The flooding situation is no doubt very frustrating for all and costly.
However, I would rather not meet with [Milam] about this matter again. We
have advised [Milam] via email that I am willing to meet with his engineer. If
you or your engineer would like to meet with me about this situation, then feel
free to call so we can arrange a time.
Milam also claims that in response to interrogatories propounded to the Kellys during
discovery, the Kellys withheld information about the landscaping in their back yard.
¶43. This Court has held that “[s]ilence may constitute fraud when a duty exists to disclose
the information claimed to have been suppressed.” Poe v. Summers, 11 So. 3d 129, 134
(¶18) (Miss. Ct. App. 2009); see also Mabus v. St. James Episcopal Church, 884 So. 2d 747,
762 (¶32) (Miss. 2004). In the case before us, the Kellys had no underlying fiduciary duty
to Milam.
¶44. In Brown, 242 So. 3d at 126 (¶12), the plaintiff shareholder, Brown, claimed that the
defendant shareholder, McKee, fraudulently concealed Brown’s cause of action which tolled
the statute of limitations. Specifically, Brown claimed that McKee concealed financial
documents relating to an appraisal of a property owned by their company and then
fraudulently concealed the true value of Brown’s interest when he bought out Brown’s shares
for far less than the property’s appraised value. Id. at 125 (¶7). On appeal, the supreme court
found that “[t]he true value of the apartment complex at the time of sale was reasonably
discoverable.” Id. at 128 (¶20). The supreme court therefore held that McKee’s silence as
to the value of Brown’s interest in the property did not equate to fraudulent concealment,
explaining that “Brown’s sale [of his shares] to McKee was by no means concealed from
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Brown, who was a party to the sale and accepted his agreed-upon proceeds for the interest
transfer.” Id. at 129 (¶26).
¶45. We find that Milam failed to present evidence showing that the Kellys were aware that
their wooden fence and landscaping were the cause of the flash flooding. Additionally, we
find that Milam presented no evidence of an affirmative act by the Kellys to prevent Milam’s
discovery of his claim. Our review of the correspondence between Milam and the Kellys
reflects that the Kellys were forthcoming in answering the questions posed by Milam’s
attorney. The Kellys even allowed their back yard to be inspected and agreed to meet with
Milam’s engineer. Since we find that Milam presented no evidence of an affirmative act by
the Kellys to prevent discovery of Milam’s claim, we therefore decline to address whether
Milam has met his burden of proving the remaining factor necessary to establish a claim for
fraudulent concealment (due diligence).
¶46. After our review, we affirm the chancellor’s order granting summary judgment in
favor of the Kellys.
¶47. AFFIRMED.
BARNES, C.J., TINDELL AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. LAWRENCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY GREENLEE, WESTBROOKS, McDONALD AND McCARTY, JJ.
LAWRENCE, J., DISSENTING:
¶48. Water, while the source of life, can also be a source of destruction. The flooding of
one’s home can be costly and devastating. More so, determining the exact cause producing
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the injury can be confusing, complicated, and often the product of science. Because I believe
the supreme court meant what it said in Punzo6 that “water flow and flood currents are
subjects requiring expert knowledge to comprehend,” I respectfully dissent from the lead
opinion.
¶49. The facts of this case are crucial and bear repeating. In 2008, J.P. Milam purchased
the home at 1717 Sheffield Drive in Jackson, Mississippi. Between 2008 and 2017, the home
suffered flash flood damage a total of eight times. While the record does indicate that Milam
suspected a recurring problem after the home flooded a second time in July, 2010, it is also
clear that Milam did not know the cause of the flooding.
¶50. Milam hired an engineer, George Guest, in August, 2012 to make a temporary plan
to prevent the flooding. The record indicates that Guest asked Milam to find out if there
were any changes in his neighbors’ properties. In order to fulfill that request, Milam reached
out to his neighbors Jim and Ann Kelly. Based on the Kellys’ suggestion that the cause may
be a clogged drainage ditch near their homes, Milam filed his initial injunction against the
City of Jackson on October 26, 2012. The City’s response was that the flooding was not the
product of a clogged ditch but rather the fault of one of Milam’s neighbors. Milam, still
confused as to the cause of the flooding and who was at fault, continued to investigate whom
he would properly file his claim against.
¶51. In 2004, the Kellys had a retaining wall built and installed a pipe for drainage.
6
Punzo v. Jackson, 861 So. 2d 340, 346 (¶22) (Miss. 2003).
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Additionally, in 2004, the Kellys raised the southeast corner of their back yard. Four years
later in 2008, the Kellys replaced their chain link fence with a wooden privacy fence.
Finally, in May of 2009, the Kellys added topsoil, planted more ground cover, and placed
several crepe myrtle trees in the southeast corner of the yard. A month after the final
alteration in 2009, Milam’s flash flooding problem began.
¶52. Milam learned of the full extent of the alterations to the Kellys’ property from a
former neighbor George Thompson. In his affidavit, Milam claimed Thompson told him
there had not been any issue with flooding for the thirty years Thompson had lived on the
property. But after the Kellys made these alterations, Thompson began to see water
encroaching on his property during storms.
¶53. On November 21, 2013, based on the information from Thompson, Milam met with
engineer Guest again and another evaluation was done. In a letter dated November 26, 2013,
David Dichiara, a consultant for Guest, described the following scenario:
[I]t appears that the new wood panel privacy type fence that your neighbor
constructed is perpendicular to the drainage way earlier mentioned. That is the
surface storm water that flows through this drainage way is trying to pass
through the wood panel fence and, generally speaking, a chain link fence will
allow water to pass through it much easier than a wood panel fence. While
this wood panel fence may not be solely responsible for your drainage
problems, it does appear to pose a significant problem for any surface storm
drainage being conveyed in that drainage way.
On April 29, 2014, Milam filed his first amended complaint to include the Kellys as
defendants after finding out their fencing could be contributing to his damage.
¶54. The Mississippi Supreme Court has made it clear that expert disclosure concerning
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cases of flooding can extend the statute of limitations by virtue of the discovery rule. Punzo,
861 So. 2d at 346 (¶22). I believe the logic of Punzo is outcome determinative and is the
controlling precedent in this case. Punzo’s home flooded at least six times from May, 1995,
until 2002. Id. at 342 (¶5). In 1991, Jackson County had made changes to the north entrance
of the Daisy Vestry Road bridge, which was located right by Punzo’s home. Id. at 342 (¶3).
Punzo was unaware of the alterations to the bridge until 1998. Id. at 343 (¶8). The supreme
court found that water flow and flood currents require “expert knowledge” to decipher the
cause of the injury, and found that the trial court’s determination that Punzo’s injury was
“immediate rather than latent” was misplaced. Id. at 346 (¶22).
¶55. Finally, the supreme court in Punzo quoted its opinion in Donald v. Amoco Production
Co., 735 So. 2d 161, 168 (¶18) (Miss. 1999), that found “the discovery exception may be
applied when it is unrealistic to expect a layman to perceive the injury at the time of the
wrongful act.” Punzo, 861 So. 2d at 346 (¶21). To find otherwise would restrict legitimate
claims of plaintiffs who know they have been injured due to flooding but do not know the
source of or the cause of that flooding.
¶56. The lead opinion affirms the decision of the chancellor to dismiss Milam’s complaint
for failure to properly amend within the applicable statute of limitations. The chancellor
relied on Angle v. Koppers, 42 So. 3d 1 (Miss. 2010), and concluded that the statute of
limitations began to run on July 3, 2010 when the flooding occurred for the second time, and
not when an expert notified the plaintiff. But Angle is not the controlling case to determine
25
the statute of limitations concerning the flow of water. Angle brought suit for torts alleged
to have occurred from 1984 through 2001. Angle, 42 So. 3d at 2 (¶2). The suit complained
that Angle had been exposed to creosote and pentachlorophenol, which had been released
into the environment through railroad tank cars. Id. Angle filed suit in 2006. Id. She
alleged injuries that ranged from ovarian cysts in 1999, a lumpectomy in 2001, and other
health issues. Id. at 3 (¶3). The trial court determined the claim was outside of the statute
of limitations. Id. Angle is a personal injury case, not a damage lawsuit dealing with the ebb
and flow of water.
¶57. Additionally, the majority relies on the supreme court’s opinion in City of Tupelo v.
O’Callaghan, as an additional example justifying the dismissal of Milam’s claim. 208 So.
3d 556 (Miss. 2017). There, the supreme court reiterated its holding in Angle, and found that
O’Callaghan was barred from his claim because he knew of his injury but failed to timely file
a claim against the proper defendant within the statute of limitations. Id. at 569 (¶38).
¶58. O’Callaghan involved the takings clause outlined in Article 3, Section 17 of the
Mississippi Constitution. Id. at 560 (¶13). O’Callaghan sued the City of Tupelo when the
foundation of a garage apartment he built caved in due to faulty installation of a drainage
ditch by the city. O’Callaghan knew the damage to his property was likely caused by the city
constructing the drainage ditch. He contacted the city to inspect the problem, and several city
officials actually visited the property site. Id. at 559 (¶8). But instead of filing suit
immediately, O’Callaghan waited years before filing the first of two lawsuits against the City.
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O’Callaghan filed his initial complaint in 2008, more than “ten years after he first recognized
the ditch was causing damage to his home.” Id. at 560 (¶9) (emphasis added). He later
voluntarily dismissed that suit. Id. In 2012, however, he filed another lawsuit again claiming
the same allegations as the 2008 lawsuit that he voluntarily dismissed. Not only were the
parties identical, the supreme court noted that the claims of the 2012 suit were “the same
claims as the 2008 suit.” Id. at (¶11). The apparent reasoning behind O’Callaghan’s second
attempt at suing the City in 2012, was another engineer’s opinion outlining the City’s
negligence. In fact, O’Callaghan had received three engineer reports and knew of the
damage the ditch was causing to his home years before his lawsuit. The supreme court found
O’Callaghan could not claim the discovery rule in 2012, when he had filed a complaint on
the same claims against the same defendant as before in 2008.
¶59. These facts differ from the facts of Milam’s claim. Milam did not know of any of the
changes to the Kelly’s property because it was done before Milam purchased his property.
Further, once Milam learned of the Kellys’ alterations to their land, he certainly did not know
how those alterations could affect or impact the flow of the water on his property. He had
to learn about that impact from his expert, just like the supreme court found in Punzo. The
expert told Milam that the flow of water could be affected by the Kellys’ alterations. In
response, Milam filed his complaint on April 29, 2014, within the applicable statute of
limitations. I would find that the Mississippi Supreme Court’s finding in Punzo extended the
statute of limitations in this case and that the discovery rule applies to claims concerning the
27
ebb and flow of water since those issues are typically outside of a lay person’s knowledge.
That is essentially what the supreme court held in Punzo and what this Court should hold in
this similarly situated case. I would reverse the dismissal of this cause and remand this case
for a trial on the merits. Accordingly, I respectfully dissent from the holding in the lead
opinion.
GREENLEE, WESTBROOKS, McDONALD AND McCARTY, JJ., JOIN THIS
OPINION.
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