O. R. Garretson v. Mississippi Department of Transportation

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-01511-SCT
O. R. GARRETSON, AND WIFE, CAROLYN C.
GARRETSON, HARRY F. GARRETSON AND
WIFE, JEAN H. GARRETSON
v.
MISSISSIPPI DEPARTMENT OF
TRANSPORTATION
DATE OF JUDGMENT: 09/18/2012
TRIAL JUDGE: HON. ROBERT P. KREBS
TRIAL COURT ATTORNEYS: A. MALCOLM N. MURPHY
K.C. HIGH TOWER
JACK H. PITTMAN
COURT FROM WHICH APPEALED: GREENE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: A. MALCOLM N. MURPHY
ATTORNEYS FOR APPELLEE: JACK H. PITTMAN
CHRISTOPHER M. HOWDESHELL
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 11/20/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND COLEMAN, JJ.
LAMAR, JUSTICE, FOR THE COURT:
¶1. The Mississippi Transportation Commission (“MTC”) procured some land from the
Garretsons via eminent domain to construct a bypass in Greene County. The Garretsons later
filed a complaint against the Mississippi Department of Transportation (“MDOT”), alleging
that the bypass construction had caused silt to flood onto their remaining land, damaging
their timber. MDOT filed a motion for summary judgment and argued that it was immune
under Mississippi Code Section 11-46-9(1), subsections (d) (discretionary-function
immunity) and (p) (design immunity). We agree that MDOT is immune from liability under
subsection (p) and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. MTC filed a complaint to condemn some of the Garretsons’ land, and the Greene
County Special Court of Eminent Domain held a hearing on MTC’s complaint. The jury
awarded the Garretsons $50,000 as just compensation for their land, and the trial judge filed
the judgment on March 11, 2004.
¶3. The Garretsons subsequently served a Notice of Claim on “MDOT and/or MTC.” 1
In their notice, the Garretsons alerted MTC and MDOT that they planned to bring a claim
for “damages as a result of silt flooding that has occurred to their land adjacent to the North
side of the new overpass that has been constructed over the existing State Highway No. 63.”
The Garretsons further alleged that MDOT “ha[d] trespassed upon [their land] and has and
is causing damage.”
¶4. The Garretsons listed the date of loss as “May 20, 2004 and continuing.” The
Garretsons alleged it was on that date that it:
became apparent . . . that the silt fence and other structures erected by MDOT
were possibly going to be ineffective and that silt was going to flood their
property and cause damage to the standing timber. It also became apparent
that the entire drainage of “Cemetery Hill” had been changed so that by
various drain structures the drainage had been shifted to one collection point
1
There is no date on the actual notice, but the Garretsons’ complaint alleges that they
served the notice on May 12, 2005. It appears that the project construction was ongoing by
at least early 2004, as MTC had acquired “immediate title and possession” of the Garretsons’
property in 2000.
2
adjacent to [the Garretsons’] land for the entire hill lying East of present State
Highway No. 63. As a result of the change of the natural drainage silt has
flooded the lands of the Garretsons and has killed, deadened, damaged and
destroyed the standing timber, young timber and other timber of value to the
Garretsons. The silt flooding is continuing and the damage to the land is
continuing as well as the damage to the timber.
The Garretsons alleged that, as a result of MDOT’s actions, they had had to seek the services
of a forester and an attorney and had to pay reforestation expenses. The Garretsons described
MDOT’s actions as “deliberate,” “callous,” and “totally indifferent” and stated that they were
entitled to recover for mental distress. The Garretsons concluded by stating that they had
“suffered substantial compensable damages due to the [tortious] acts of MDOT and/or
MTC,” and that they sought damages not exceeding the policy limits of any liability policies
in effect, or $500,000 each, whichever was greater.
¶5. The Garretsons followed up their notice with their complaint against MDOT on
August 1, 2005. Their complaint reiterated the claims in their notice. In sum, the Garretsons
alleged that:
[P]rior to May 20, 2004, the Mississippi Department of Transportation
[caused] a four lane highway roadway and overhead bridge to be constructed
on land [parallel] and adjacent to lands owned by the Garretsons. After
construction of the highway roadway beds and bridges, silt began to flood onto
the lands of the Garretsons. On May 20, 2004, all of the preventive measures
of [MDOT] failed and silt flooded from the right-of-way lands of [MDOT]
onto the timber lands of the Garretsons [which caused] the damage herein
complained of. MDOT caused silt fences and other structures to be erected,
but all systems failed.
...
It was known to MDOT prior to the construction of the highway and bridges
that the drainage would be changed, channeled to one collection point and that
silt flooding would cause damage to the [Garretsons’] lands and timber. The
damage by silt flooding was deliberately caused by MDOT and concealed
3
from the Garretsons. MDOT is also guilty of gross negligence in the
construction and change of drainage.
The Garretsons asked for (1) a permanent injunction to prevent the silt flooding; (2) a
judgment for “all damages permitted by Section 95-5-10,” 2 including expert-witness fees,
attorneys’ fees, and costs; (3) a judgment for the damaged and destroyed timber in the
amount of $55,051; and (4) a judgment of $500,000 for “the anger, outrage and mental
upset” suffered as a result of MDOT’s “deliberate, callous and indifferent” actions. MDOT
answered the Garretsons’ complaint, and the parties engaged in written discovery.
¶6. MDOT filed a Motion for Summary Judgment and argued that it was exempt from
liability for “suits of this type” under Mississippi Code Section 11-46-9(1), subsections (d)
and (p). MDOT attached three exhibits to its motion: (1) an itemization of undisputed facts;
(2) an affidavit from MDOT Roadway Design Division Engineer C. Keith Purvis; and (3)
the judgment from the Greene County Special Court of Eminent Domain.3
¶7. More than four years later, the Garretsons responded to MDOT’s motion. The
Garretsons disputed MDOT’s first statement of undisputed fact and stated that “the road
construction was NEW construction and was not Reconstruction and/or widened.” The
Garretsons also took issue with MDOT’s failure to attach the statement of values from the
2
“(1) If any person shall cut down, deaden, destroy or take away any tree without the
consent of the owner of such tree, such person shall pay to the owner of such tree a sum
equal to double the fair market value of the tree cut down, deadened, destroyed or taken
away, together with the reasonable cost of reforestation, which cost shall not exceed Two
Hundred Fifty Dollars ($250.00) per acre . . . ” Miss. Code Ann. § 95-5-10(1) (Rev. 2013).
3
MDOT also argued in its motion that it was entitled to summary judgment based on
the eminent-domain judgment entered against the Garretsons – a res judicata argument of
sorts. But the trial judge did not address that argument in his order granting summary
judgment, and the parties do not appear to raise that argument again on appeal.
4
eminent domain action, in which it was stated that the “damage to the remainder [of the
property] is $0.00.” The Garretsons attached the statement of values as Exhibit 1 to their
Response.
¶8. The Garretsons’ response to MDOT’s argument that it was immune under Section 11-
46-9(1), subsections (d) and (p), is hard to follow:
[T]he [Plaintiffs] deny that the Mississippi Department of Transportation is
entitled to immunity under §11-46-9(d) (p) in that this is not a tort claim
action. At commencement of this cause of action, which is an ongoing cause
of action, the [Plaintiffs] did make allegations of Tort Claim [sic], but also
made allegations of “Negligence,” “Trespass” and a request for “Injunction.”
The Garretsons argued further that McLemore v. Missississippi Transportation Commission,
992 So. 2d 1107 (Miss. 2008), supported their position that they could maintain their claims.
¶9. The Garretsons also objected to C. Keith Purvis’s affidavit because it failed to state
that the highway design was “in conformity” [with current engineering or design standards];
rather, it used the word “indicating” that the plans were in conformity. The Garretsons
attached to their response an affidavit from O.R. Garretson to “dispute” Purvis’s affidavit.
Finally, the Garretsons asserted that “the negligence of permitting the silt flooding and
trespass is a separate cause of action all of which occurred after the taking which is
prohibited by Article 3, Section 17 of the Mississippi Constitution.”
¶10. The trial judge held a hearing on MDOT’s motion, and he entered an order granting
the motion one week later. The order does not detail the trial judge’s reasoning, but it does
state that he “specifically [found] that the Defendant . . . [was] entitled to immunity under
Mississippi Code Annotated 11-46-9(1)(d) and (p).”
¶11. The Garretsons now appeal to this Court, arguing:
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(1) The Court erred by Granting Summary Judgment based on a
discretionary function and design function §11-46-9(1)(d)(p) and the Court
further erred in dismissing all of the remaining causes of action for (1)
negligence, (2) trespass and all damages under §95-5-10, and (3) injunction
and (4) damages. In effect the Court found the cause to be controlled by the
Miss. Tort Claim Act and dismissed all [the] other remaining causes of action
as if ‘Frasier’s Octopus’ were alive and well; and
(2) Article 3, Section 17, of the Mississippi Constitution prevails over
the Mississippi Rules of Civil Procedure addressing the guarantees between
the Government and its Citizens. Article 3, Section 17 of the Constitution, is
self executing.
¶12. For clarity, we restate the issues as: (1) whether the circuit judge correctly granted
summary judgment to MDOT; and (2) whether Article 3, Section 17 of the Constitution
provides the Garretsons any relief.
STANDARD OF REVIEW
¶13. This Court conducts a de novo review when deciding whether the trial court properly
granted a motion for summary judgment. Conrod v. Holder, 825 So. 2d 16, 18 (Miss. 2002).
And the application of the Mississippi Tort Claims Act (“MTCA”) is a question of law that
is also reviewed de novo. Little v. Mississippi Dep’t of Transp., 129 So. 3d 132, 135 (Miss.
2013).
ANALYSIS
I. The trial judge properly granted MDOT’s motion for summary judgment.
¶14. As mentioned above, the trial judge specifically found in his order granting summary
judgment that MDOT was entitled to immunity under Mississippi Code Section 11-46-9(1),
subsections (d) and (p). We agree with the trial court and find that MDOT is immune under
Section 11-46-9(1)(p). Because we find immunity under subsection (p), we find it
6
unnecessary to address MDOT’s immunity under subsection (d). See, e.g., Fortenberry v.
City of Jackson, 71 So. 3d 1196, 1204 (Miss. 2011) (“Applicability under any one of the
provisions of Mississippi Code Section 11-46-9 provides immunity for a governmental entity
and its employees.”) (emphasis added).
A. Section 11-46-9(1)(p)
¶15. The trial judge found that MDOT was immune under Mississippi Code Section 11-46-
9(1)(p), which states:
(1) A governmental entity and its employees acting within the course and
scope of their employment or duties shall not be liable for any claim:
...
(p) Arising out of a plan or design for construction or
improvements to public property, including, but not limited to,
public buildings, highways, roads, streets, bridges, levees, dikes,
dams, impoundments, drainage channels, diversion channels,
harbors, ports, wharfs or docks, where such plan or design has
been approved in advance of the construction or improvement
by the legislative body or governing authority of a governmental
entity or by some other body or administrative agency,
exercising discretion by authority to give such approval, and
where such plan or design is in conformity with engineering or
design standards in effect at the time of preparation of the plan
or design[.]
Miss. Code Ann. § 11-46-9(1)(p) (Rev. 2012) (emphasis added). Here, MDOT submitted
an affidavit in support of its motion for summary judgment from its Roadway Design
Division Engineer C. Keith Purvis. In it, Purvis testified that “[t]he plans or designs for
Project #SDP-0002-02(060)PH3 on SR-63 were approved in advance of construction by [the]
Roadway Design Division on 7/9/03, indicating that they conformed with the standards for
design established by the American Association of State Highway and Transportation
Officials in place . . . at the time they were drafted.”
7
¶16. We are not persuaded by the Garretsons’ attempt to disavow any negligent-design
claim on appeal, as the crux of their complaint clearly is that the bypass was negligently
designed. For example, the Garretsons explicitly stated in their complaint that:
After construction of the highway roadway beds and bridges, silt began to
flood onto the lands of the Garretsons . . . . It also became apparent that the
construction of the roadbed and bridges caused the entire drainage of
“Cemetery Hill” to be changed so that by various drain structures constructed
by MDOT the drainage had been shifted to one collection point adjacent to the
[Garretsons’] property line. As a result of the change of the natural
drainage[,] silt has flooded the lands of the Garretsons . . . .
(Emphasis added.) And, in his affidavit submitted in response to MDOT’s motion, O.R.
Garretson testified that:
Prior to the construction of the subject road there was absolutely never any
silting or drainage of any consequence to the subject property and silting had
never occurred. In fact, the drainage from the hill was to the East and on the
South side of State Highway No. 63, away from the subject land . . . . The
construction of the highway radically changed and altered the drainage of the
hill and was achieved by the installation of numerous pipes and drains which
shifted an enormous amount of the water and silt on to the [plaintiffs’] land.
Finally, in their reply brief, the Garretsons state that “this case is and was about the change
of grade that [caused] silt flooding and damage on [the Garretsons’] property.”
¶17. Based on the language above, we conclude that, although the Garretsons did not use
the word “design,” the crux of their complaint is that the design of the bypass itself changed
the naturally occurring drainage and caused silt to flow onto their land – which had not
occurred before, according to O.R. Garretson himself. We affirm the trial judge’s finding
that MDOT is immune under subsection (p).
B. The Garretsons’ Specific Causes of Action
8
¶18. The crux of the Garretsons’ argument on this issue is that the trial judge erred when
he granted MDOT summary judgment on all the claims in their complaint. Specifically, the
Garretsons argue that they “filed a multi-count complaint which was specific and detailed
each count and the damages arising therefor. The Trial Court should not have dismissed all
of [the] claims because the Trial Court insulated MDOT from all claims by sustaining [the
exemptions] under §11-46-9(1)(d)(p).”
¶19. We disagree with the Garretsons’ argument, as a cursory review of their complaint
reveals that all of their causes of action sound in tort. In other words, even though they asked
for costs of their timber and for all damages permitted by Section 95-5-10, all of their causes
of action center on the alleged “[tortious] acts” of MDOT. And Mississippi Code Section
11-46-7 states that “(1) The remedy provided by this chapter against a governmental entity
or its employee is exclusive of any other civil action or civil proceeding by reason of the
same subject matter against the governmental entity or its employee or the estate of the
employee for the act or omission which gave rise to the claim or suit.” (Emphasis added.)
¶20. We find Section 11-46-7 unambiguous – any claim for money damages arising out of
the State’s tortious acts must be brought under the MTCA. And here, the trial court was
correct in finding that MDOT is immune under the MTCA. As for the Garretsons’ claim for
an injunction, the Legislature clearly has stated that a plaintiff cannot procure an injunction
against the State for actions sounding in tort:
The Legislature of the State of Mississippi finds and determines as a matter of
public policy and does hereby declare, provide, enact and reenact that the
“state” and its “political subdivisions,” . . . are not now, have never been and
shall not be liable, and are, always have been and shall continue to be immune
9
from suit at law or in equity on account of any wrongful or tortious act or
omission[.]
Miss. Code Ann. § 11-46-3(1) (Rev. 2012) (emphasis added). Although there is a waiver of
this immunity in Section 11-46-5 for claims for money damages arising out of the State’s
alleged tortious conduct, there is no such waiver of immunity for injunctive relief in this
context. Thus, the trial judge was correct when he granted MDOT summary judgment on all
of the Garretsons’ claims.
¶21. The Garretsons argue that MacDonald v. Mississippi Department of Transportation,
955 So. 2d 355 (Miss. Ct. App. 2006), is applicable and supports their argument that they
should be able to pursue some of the claims in their complaint. We disagree. There, the
Court of Appeals did state that:
[W]here there are separate claims, that single [immunity] provision may or
may not be sufficient to create immunity as it applies to those other claims.
Resolution of the question as to whether a single finding of immunity equates
to immunity as to each and every claim raised depends on the facts of the case
and the relevant claims. Therefore, such an issue must be decided on a case-
by-case basis . . . . Succinctly put, immunity as to one claim does not
necessarily, as a matter of law, equate to immunity for all claims.
Id. at 361-62 (emphasis added).
¶22. But the plaintiff in MacDonald had made other claims along with her negligent-
design claims – for instance, she made a claim for negligent maintenance and improvement,
as well as a claim for failure to warn of a dangerous condition. Thus, some of her claims fell
outside the realm of road design. MacDonald, 955 So. 2d at 357. Here, after carefully
reviewing the “facts of [this] case and the relevant claims,” we find that all of the Garretsons’
causes of action are barred by the design exemption.
10
II. The Garretsons did not plead a taking.
¶23. In their second point on appeal, the Garretsons argue that a taking claim brought under
Article 3, Section 17 of the Mississippi Constitution 4 trumps the provisions of the MTCA.
But because the Garretsons did not plead a taking in their complaint, we do not address the
merits of this issue.
¶24. Even a liberal reading of the Garretsons’ complaint would not and did not put
MDOT on notice of a constitutional taking claim. The words “taking” or “eminent domain”
are nowhere to be found, nor is any sort of citation of or reference to the Takings Clause.
Rather, the Garretsons repeatedly used phrases like “negligence,” “trespass,” and
“[tortious].” The first time the Garretsons mentioned Article 3, Section 17, was in their
response to MDOT’s motion for summary judgment. And despite the passage of almost five
years between MDOT’s motion and the Garretsons’ response, there is no evidence in the
record that the Garretsons ever attempted to amend their complaint to add a taking claim.
¶25. The Court of Appeals’ opinion in B&W Farms v. Mississippi Transportation
Commission, 922 So. 2d 857 (Miss. Ct. App. 2006), is directly on point and instructive.
There, the plaintiffs asserted that the defendants (MTC and its contractor) “unlawfully and
negligently diverted and obstructed the natural flow of surface water,” and that they “had a
duty to . . . avoid the negligent flooding of the crops . . . while constructing and improving
the said Highway.” Id. at 858.
4
“Private property shall not be taken or damaged for public use, except on due
compensation being first made to the owner or owners thereof, in a manner to be prescribed
by law . . . . ” Miss. Const. art. 3, § 17 (emphasis added).
11
¶26. MTC filed a motion for summary judgment. Id. During the hearing on the motion,
counsel for the plaintiffs argued that the term “unlawfully” must “certainly refer” to a
violation of Article 3, Section 17, under the notice-pleading doctrine. Id. But the trial judge
disagreed and found that the term “unlawful” was insufficient to put MTC on notice that the
plaintiffs were asserting a constitutional claim. Id. The plaintiffs appealed and argued that
the trial judge erred by strictly construing their complaint as “being limited to only a theory
of negligence.” Id.
¶27. The Court of Appeals affirmed, beginning its analysis with a summary of
Mississippi’s notice-pleading jurisprudence:
Although Rule 8 of the Mississippi Rules of Civil Procedure “has eliminated
the technical forms of pleadings required in years past, notice pleadings are
still required to place the opposing party on notice of the claim being
asserted.”
...
In the complaint . . . B & W asserted that the “[d]efendants ... unlawfully and
negligently diverted and obstructed the natural flow of surface water which
flowed from the west to the east under U.S. Highway No. 61.” The complaint
is void of any references to the Mississippi Constitution or to a taking of
private property for public use.
...
The first specific mention of a violation of the takings clause did not come until
. . . B & W filed its response to the MTC’s motion for summary judgment. We
agree with the finding of the trial court that “the word ‘unlawful’ is not so
comprehensive as to specifically involve a constitutional claim in this instance
because all contentions point to negligence.” Moreover, if B & W sought relief
under Article 3, Section 17 of the Mississippi Constitution, at least some notice
of this claim should have been given before B & W filed its response to the
motion for summary judgment, (especially since the complaint was filed nearly
seven years earlier).
Id. at 858-59 (citations omitted) (emphasis added). We find this reasoning persuasive and
reach the same result here.
12
¶28. The Garretsons’ reliance on this Court’s opinion in McLemore v. Mississippi
Transportation Commission, 992 So. 2d 1107 (Miss. 2008), is, again, misplaced. This Court
did indeed hold in McLemore that the McLemores could bring their claims against MTC in
spite of the provisions of the MTCA.5 Id. at 1111. But it was clear there that the McLemores
had pleaded a taking:
Dennis and Tammy McLemore filed suit in the Circuit Court of DeSoto
County against the Mississippi Transportation Commission (MTC) and Talbot
Brothers Contracting Co., Inc., alleging a taking without just compensation in
violation of the Mississippi and U.S. Constitutions due to flooding and siltation
on real property from negligence in the construction of a highway.
...
Moreover, the parties agree that the McLemores provided notice of the
constitutional claims.
Id. at 1107-1109 (emphasis added).
¶29. Finally, the Garretsons’ last-ditch effort to argue that Article 3, Section 17 is “self-
executing” – i.e., that they did not have to plead it – is unconvincing. It is true that this
Court, in Parker v. State Highway Commission, 162 So. 162 (Miss. 1935), stated that
“[S]ection 17, Constitution of 1890, is self-executing.” Id. at 164. But a reading of the
opinion as a whole reveals that the term “self-executing” as used there meant that the
Legislature could not limit the right – not that a plaintiff did not have to plead it. This
interpretation is evidenced by the sentence immediately following the “self-executing”
sentence relied on by the Garretsons:
5
“[T]he MTC asserts that the Mississippi Tort Claims Act provides the exclusive
remedy for the McLemores and that they failed to plead it; therefore summary judgment was
proper. However, we disagree.” Id. at 1109.
13
Prior to the adoption of this Constitution the Legislature could limit a
landowner’s recovery to compensation for the land appropriated for public use,
but as section 17 now exists it is quite clear that any effort on the part of the
Legislature to shield the government or any arm thereof from payment of
damages occasioned by it on the appropriation of land would be futile and of
no effect. Before our Constitution was adopted, sections similar to the one here
under consideration had been construed by the courts of other states as being
self-executing. Section 17 of the constitution is mandatory.
Id. at 164.
¶30. In sum, the Garretsons failed to plead a taking claim in their complaint, and we find
that they are barred from attempting to argue that theory now.
CONCLUSION
¶31. The trial judge was correct when he found that MDOT is immune from liability in this
case under subsection (p) of Section 11-46-9(1). And because the Garretsons pleaded only
claims that fall under this exemption, we find that the trial judge was correct in granting
MDOT summary judgment on all of their claims. Finally, the Garretsons cannot pursue a
constitutional taking theory because they failed to plead it.
¶32. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., NOT
PARTICIPATING.
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