Walter Williams v. City of Belzoni

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01497-COA
WALTER WILLIAMS APPELLANT
v.
CITY OF BELZONI AND ALDERMAN GARY APPELLEES
FARMER, INDIVIDUALLY
DATE OF JUDGMENT: 06/15/2015
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: KENNETH TREY O’CAIN
ATTORNEYS FOR APPELLEES: DANIEL JUDSON GRIFFITH
JAMIE FERGUSON JACKS
MICHAEL STEPHEN CARR
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: DISMISSED FOR LACK OF JURISDICTION
DISPOSITION: AFFIRMED IN PART, MODIFIED AND
RENDERED IN PART - 03/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Walter Williams was the public works director for the City of Belzoni until the board
of aldermen voted not to renew his employment. Williams did not exercise his statutory right
to appeal the board’s decision to circuit court. Instead, more than a year later, he filed an
independent lawsuit against the city and one alderman (Gary Farmer) in circuit court,
asserting claims for defamation and “wrongful termination.” Williams purported to proceed
under the Mississippi Tort Claims Act (MTCA), Mississippi Code Annotated sections 11-46-
1 to -23 (Rev. 2012 & Supp. 2016). The circuit court dismissed the entire action without
prejudice, reasoning that it was without jurisdiction because Williams failed to file a timely
appeal from the board’s decision not to renew his employment.
¶2. The circuit court properly dismissed Williams’s wrongful termination claim because
he failed to file a timely appeal, which is the exclusive remedy for a party aggrieved by such
a decision of a municipal authority. In addition, Williams’s defamation claim against the city
is barred by sovereign immunity, and his defamation claim against Farmer is barred by the
statute of limitations. Accordingly, we affirm the circuit court’s dismissal of the complaint;
however, as we explain infra, the dismissal should be with prejudice. Therefore, we modify
and render the judgment as a dismissal with prejudice.
FACTS AND PROCEDURAL HISTORY
¶3. On August 6, 2013, the city’s board of aldermen divided 2–2, with one member
indicated “not present,” on a motion to renew Williams’s employment as public works
director for the city. The mayor voted against the motion, thereby breaking the tie and
effectively terminating Williams’s employment.
¶4. On August 29, 2013, Williams wrote a letter to the mayor and board requesting a
hearing on his termination. The city did not respond and no hearing was held.
¶5. On July 14, 2014, Williams served the city with a notice of claim pursuant to the
MTCA. Miss. Code Ann.§ 11-46-11 (Rev. 2012). Williams alleged that he was terminated
because Farmer, who had voted against the motion to renew his employment, made a false
and defamatory accusation that he had stolen one of the city’s lawnmowers. Williams also
alleged that his termination was procedurally improper and that Farmer was not qualified to
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be an alderman because he lived outside of the Belzoni city limits. On October 29, 2014,
Williams filed suit in Humphreys County Circuit Court against Farmer and the city.
Williams asserted claims for defamation, slander, and slander per se (Count I) and “wrongful
termination” (Count II).
¶6. The city and Farmer answered the complaint and subsequently filed a joint motion to
dismiss or for summary judgment. They argued that Williams’s claims against the city were
barred by sovereign immunity. They also argued that Williams’s claims were barred because
he failed to appeal the city’s decision not to renew his employment within ten days, as
required by Mississippi Code Annotated section 11-51-75 (Rev. 2012). Finally, they argued
that any claims against Farmer in his individual capacity were barred by the statute of
limitations, as the tolling provisions of the MTCA would not apply to such claims.
¶7. The circuit court granted the defendants’ motion, finding that the court was “without
jurisdiction to hear this matter due to [Williams’s] failure to file a [timely] notice of appeal”
pursuant to section 11-51-75. In its final judgment, the circuit court stated that it was
granting summary judgment for the defendants and that the action was dismissed “without
prejudice” because Williams’s claims were “barred procedurally” and thus could not
“properly be reviewed by [the court].”
¶8. On appeal, Williams argues that (1) the circuit court erred in dismissing his
defamation claim against Farmer; (2) his case should not have been dismissed due to his
failure to appeal the board’s decision because “there was no final action or decision from
which [he] could have appealed”; and (3) “the board induced [him] into sleeping on his
3
rights.” We consider these arguments below in the course of addressing Williams’s claims
for “wrongful termination” and defamation/slander.
ANALYSIS
I. The circuit court properly dismissed Williams’s “wrongful
termination” claim.
¶9. At the outset, it should be understood that Williams’s “wrongful termination” claim
is not a “McArn claim.” See McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607
(Miss. 1993) (recognizing “a narrow public policy exception to the employment at will
doctrine”: an employee who is terminated because he “refuses to participate in an illegal act”
or “report[s] illegal acts of his employer” may bring an action in tort for wrongful
termination). Rather, Williams’s complaint and subsequent pleadings make clear that his
claim is simply that his termination was “wrongful” because, allegedly, Farmer was not a
resident or qualified alderman, the city failed to follow unspecified rules and regulations, and
he should not have been terminated based on an “unsubstantiated allegation.”
¶10. Mississippi Code Annotated section 11-51-75 permits a party aggrieved by such a
decision of a municipal authority to appeal to circuit court by filing a bill of exceptions
within ten days. “The statute’s ten (10) day time limit in which to appeal the decision of a
[b]oard is both mandatory and jurisdictional. Where an appeal is not perfected within the
statutory time constraints no jurisdiction is conferred on the appellate court; and the untimely
action should be dismissed.” Newell v. Jones Cty., 731 So. 2d 580, 582 (¶10) (Miss. 1999)
(citation omitted); accord, e.g., Claiborne Cty. v. Parker, 26 So. 3d 1078, 1080 (¶4) (Miss.
Ct. App. 2009) (holding that the circuit court lacked jurisdiction to review the board’s
4
decision to terminate an employee where the employee failed to appeal within ten days). An
appeal to circuit court pursuant to section 11-51-75 is the “exclusive remedy” for a party
aggrieved by the decision of a municipal authority. E.g., Malone v. Leake Cty. Bd. of Sup’rs,
841 So. 2d 141, 145 (¶9) (Miss. 2003). Williams’s complaint was filed more than fourteen
months after the board’s decision. Therefore, the circuit court properly dismissed his
wrongful termination claim for failure to comply with section 11-51-75’s mandatory time
limit.
¶11. Williams argues that, despite his failure to file a timely appeal, the circuit court had
jurisdiction to consider his claim based on his allegations that the board’s decision was
procedurally improper and that Farmer was not a qualified alderman. Williams presented no
evidence regarding Farmer’s residency, and he fails to specify what procedures were not
followed. In any event, the Mississippi Supreme Court has squarely rejected the argument
that a mere allegation of “unlawful” action by a board operates to suspend the requirements
of section 11-51-75. Newell, 731 So. 2d at 582 (¶¶10-11). In Newell, three months after a
board of supervisors entered into a garbage collection contract, residents filed a complaint
for a declaratory judgment challenging the contract. Id. at (¶10). The residents argued that
section 11-51-75 did not apply because the board’s failure to comply with statutory
prerequisites rendered its action “unlawful.” Id. at 580-82 (¶¶4, 11). The Supreme Court
rejected this argument, holding that section 11-51-75 applied because the board acted, and
its action was final, thereby triggering the statute’s mandatory ten-day time limit. Id. at 582
(¶11). The same is true in the present case. If Williams believed that the board’s action was
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unlawful, he was required to appeal its decision within ten days. Because he failed to do so,
his claim for wrongful termination was properly dismissed.1
¶12. As noted above, Williams also argues that section 11-51-75’s ten-day time limit does
not apply because “there was no final action or decision from which [he] could have
appealed.” The argument under this heading essentially repackages Williams’s unsupported
claim that Farmer is not a bona fide alderman. He contends that a decision that depends on
the vote of an unqualified alderman is not “final.” For the same reasons discussed above, this
argument is without merit. The board’s action was final on its face. If Williams desired to
challenge the action taken, he was required to comply with section 11-51-75.
¶13. Finally, Williams argues that his failure to file a timely appeal should not bar his
claim because “the board induced [him] into sleeping on his rights.” The only evidence that
he cites in support of this claim is his August 29, 2013 letter to the board requesting a hearing
on his termination. In a proposed amended complaint,2 Williams alleged that Farmer told
1
The ten-day time limit in section 11-51-75 is also unaffected by the fact that
Williams sued Farmer in his individual capacity. See Foster v. Edwards, 61 So. 3d 960, 964
(¶10) (Miss. Ct. App. 2011) (“Because [plaintiffs’] action was, in reality, an appeal of a
municipal authority’s decision, section 11-51-75 applied” even though they purported to sue
the mayor and board individually.).
2
The circuit court did not grant Williams’s motion to amend his complaint, which
was filed after the defendants moved for summary judgment. Cursory assertions that the
chancellor abused her discretion by not granting leave to amend are interspersed within the
argument section of Williams’s brief on appeal. However, Williams does not identify the
issue in his statement of issues or present the issue separately within the body of his brief.
Accordingly, the issue is waived. M.R.A.P. 28(a)(3), (7); see Bolden v. State, 166 So. 3d
568, 571 (¶7) (Miss. Ct. App. 2015); Wilson v. Wilson, 79 So. 3d 551, 560 (¶39) (Miss. Ct.
App. 2012); Reed v. State, 987 So. 2d 1054, 1056-57 (¶¶7-8) (Miss. Ct. App. 2008); Starks
v. State, 798 So. 2d 562, 566 (¶14) (Miss. Ct. App. 2001).
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him that at the August 19, 2013 board meeting he would be given an opportunity to prove
that he did not steal the city’s lawnmower. Williams alleges that the board did not give him
that opportunity at its August 19 meeting, which is why he then wrote a letter requesting a
hearing. Williams’s argument is without merit. To begin with, his allegation fails to meet
the requirements of Mississippi Rule of Civil Procedure 56(e).3 But even if we accept the
allegation as true, and even if the city could be estopped by Farmer’s alleged promise, this
explains only a few days of delay on Williams’s part. As noted above, Williams filed his
complaint fourteen months too late, far beyond the statute’s ten-day time limit. The alleged
promise of a hearing cannot possibly excuse Williams’s failure to comply with the statute for
fourteen months.
¶14. In summary, because Williams failed to comply with section 11-51-75’s mandatory
ten-day time limit, the circuit court properly dismissed his wrongful termination claim. See
Newell, 731 So. 2d at 582 (¶10). Furthermore, because an appeal pursuant to section 11-51-
75 was the exclusive remedy available to Williams to challenge the board’s decision, the
dismissal of his wrongful termination claim should have been with prejudice. Hood v. Perry
Cty., 821 So. 2d 900, 902 (¶¶5-10) (Miss. Ct. App. 2002); accord Pratt v. City of Greenville,
918 So. 2d 81, 83 (¶¶5-12) (Miss. Ct. App. 2006); Lucas v. Williamson, 852 So. 2d 67, 68-69
(¶5) (Miss. Ct. App. 2003).
II. Williams’s slander and defamation claims fail as a matter of law.
3
A party opposing summary judgment “may not rest upon the mere allegations or
denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall be entered against him.” M.R.C.P. 56(e).
7
¶15. Pursuant to the MTCA, “an employee shall not be considered as acting within the
course and scope of his employment and a governmental entity shall not be liable or be
considered to have waived immunity for any conduct of its employee if the employee’s
conduct constituted . . . slander [or] defamation . . . .” Miss. Code Ann. § 11-46-5(2) (Rev.
2012). Thus, the city is immune from liability on any claim that Farmer slandered or
defamed Williams.4 Farmer argues that any slander or defamation claim against him in his
individual capacity also fails because, among other reasons, it is barred by the statute of
limitations. For the reasons that follow, we agree.
¶16. “Defamation is divided into two torts, including libel for written defamations and
slander for oral ones.” Funderburk v. Johnson, 935 So. 2d 1084, 1101 (¶45) (Miss. Ct. App.
2006). All such claims must be filed within one year after the cause of action accrued. Miss.
Code Ann. § 15-1-35 (Rev. 2012). Williams’s complaint alleges that Farmer defamed him
at the August 6, 2013 board meeting by accusing him of stealing a lawnmower. Williams’s
complaint was not filed until October 29, 2014, beyond the applicable one-year statute of
limitations as it relates to any alleged slander on the date of the board meeting.
¶17. In his reply brief on appeal, Williams argues that his slander claim is not time-barred
because his proposed amended complaint (see supra n.2) alleged that “Farmer . . . continued
to defame and otherwise slander [him] throughout the year.” By “throughout the year,”
Williams apparently means that Farmer slandered him on at least one occasion within the
applicable limitations period. It is true that “[e]ach repetition of slanderous words is a
4
As an alderman, Farmer is an “employee” of the city for purposes of the MTCA.
See Miss. Code Ann. § 11-46-1(f) (Rev. 2012).
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distinct cause of action,” so the statute of limitations may not bar a claim based on slanderous
statements uttered within the limitations period, even if it would bar a claim based on prior,
similar statements. Ladner v. Arrington, 374 So. 2d 831, 832-33 (Miss 1979). However, the
vague allegation in Williams’s proposed amended complaint was never placed before the
circuit court in an affidavit or other form sufficient to show that there is a genuine issue of
fact for trial. M.R.C.P. 56(e); see supra n.3. Moreover, the allegation of continued slander
“throughout the year” is insufficient even to state an actionable claim for slander within the
applicable limitations period. See Chalk v. Bertholf, 980 So. 2d 290, 296-99 (¶¶11-19) (Miss.
Ct. App. 2007) (discussing the elements of slander and the particularity with which the claim
must be pled). In any event, because Williams never placed this vague allegation before the
circuit court in a form in which it could be considered under Rule 56, Farmer was entitled
to summary judgment on Williams’s slander claim on the ground that the claim was barred
by the statute of limitations.5
5
Although Williams does not repeat the argument on appeal, in the circuit court he
also argued that the limitations period was tolled pursuant to the MTCA for ninety-five days
after he served the city with his notice of claim. See Miss. Code Ann. § 11-46-11(3).
However, as explained above, any conduct by Farmer constituting defamation or slander
“shall not be considered . . . within the course and scope of [Farmer’s] employment.” Miss.
Code Ann. § 11-46-5(2). Because “these intentional torts are outside the scope of the
MTCA’s waiver of immunity, . . . the MTCA does not apply.” Zumwalt v. Jones Cty. Bd.
of Sup’rs, 19 So. 3d 672, 688 (¶83) (Miss. 2009). And because “the MTCA does not apply
to these torts, . . . any legal action against a governmental employee for these intentional
torts must necessarily proceed against him or her as an individual.” Id. at (¶84). Therefore,
because the MTCA expressly does not apply to claims for defamation or slander, it
necessarily follows that the MTCA’s notice provision does not apply to Williams’s slander
claim. Id. at (¶85); accord McGehee v. DePoyster, 708 So. 2d 77, 79-81 (¶¶7-11) (Miss.
1998). And because the MTCA’s notice provision does not apply to Williams’s claim
against Farmer, it also follows that his service of such notice on the city did not serve to toll
the statute of limitations pursuant to that provision. Stated differently, the MTCA’s statute
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CONCLUSION
¶18. For the foregoing reasons, the circuit court properly dismissed the complaint.
However, the dismissal should have been with prejudice because Williams failed to avail
himself of the “exclusive remedy” available to him with respect to his wrongful termination
claim; because his defamation claim against the city is barred by sovereign immunity; and
because his defamation claim against Farmer is barred by the statute of limitations.
Accordingly, we affirm the dismissal of the complaint, but we modify and render the
judgment of the circuit court as a dismissal with prejudice.
¶19. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT IS
AFFIRMED IN PART, AND MODIFIED AND RENDERED IN PART AS A
DISMISSAL WITH PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE
AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
of limitations is distinct from the statute of limitations applicable to non-MTCA defamation
claims. The tolling provision of the MTCA’s statute of limitations, section 11-46-11(3),
does not toll the separate statute of limitations applicable to non-MTCA defamation claims,
Miss. Code Ann. § 15-1-35. The latter applies to Williams’s claim against Farmer, and it
was unaffected by—and expired notwithstanding—Williams’s service of a notice of claim
on the city.
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