Glen D. Jackson v. Charles Carter
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00376-COA
GLEN D. JACKSON
APPELLANT
v.
CHARLES CARTER, INDIVIDUALLY AND IN
HIS CAPACITY AS A REGISTERED FORESTER
AND D/B/A MID-SOUTH FORESTRY, MIDSOUTH FORESTRY, INC. AND RICHARD
CHISM D/B/A CHISM LOGGING
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
2/5/2008
HON. ROBERT WILLIAM ELLIOTT
UNION COUNTY CIRCUIT COURT
JOHN DAVID WEDDLE
MATTHEW ANDERSON TAYLOR
JOHN LEWIS HINKLE
CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
SUMMARY JUDGMENT ENTERED FOR
APPELLEES
AFFIRMED - 4/21/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Glen D. Jackson appeals the judgment of the Circuit Court of Union County,
Mississippi, which granted summary judgment in favor of Richard Chism d/b/a Chism
Logging and Charles Carter, individually and in his capacity as a registered forester and d/b/a
Mid-South Forestry, Inc. Jackson has filed suit against them and other unknown defendants
based on the wrongful cutting and removal of timber from his property. On appeal, Jackson
argues that the circuit court erred in granting the motion for summary judgment on the
grounds that Jackson’s claim is barred by the applicable statute of limitations, as set forth in
Mississippi Code Annotated section 95-5-29 (Rev. 2004). We conclude that section 95-5-29
bars this cause of action in its entirety. Accordingly, we affirm the trial court’s judgment in
favor of the Appellees.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
¶2.
The facts of this case are undisputed. On October 30, 2001, Chism d/b/a Chism
Logging entered into a contract with Carter d/b/a Mid-South Forestry and Louie Wages for
the harvesting of timber from property owned by Wages in Union County, Mississippi.
Wages’s property is adjacent to the property owned by Jackson.1 Chism harvested all of the
timber that had been pre-marked by Carter and utilized the boundaries that Wages provided
regarding the harvesting that was to take place. On November 15, 2001, Chism completed
the harvesting of timber from Wages’s property.
¶3.
On or about April 18, 2007, while traversing his property with his brothers, Jackson
discovered that an estimated twelve acres of timber had been harvested from his land without
his knowledge or permission. The land was not used as a residence, and the acreage that was
harvested is not visible from any public road.
¶4.
On June 29, 2007, approximately five and one-half years after the alleged cutting,
Jackson filed suit against Chism and Carter seeking damages pursuant to Mississippi Code
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Jackson contends that the property lines between his property and Wages’s property
were marked by a barbed wire fence line and were clearly visible.
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Annotated section 95-5-10 (Rev. 2004) for the alleged unlawful removal of trees from his
property. After some discovery was completed, Chism and Carter moved the circuit court
for summary judgment, arguing that the governing statute of limitations, section 95-5-29,
operated to bar Jackson’s recovery since he failed to file suit within twenty-four months from
the time the injury was committed. Jackson responded to the summary judgment motion
arguing that the “discovery rule” should apply in this case to toll the statute of limitations
until he could have discovered the unlawful harvesting of trees from his land. The circuit
court granted the Appellees’ motion for summary judgment, and Jackson filed the present
appeal.
STANDARD OF REVIEW
¶5.
The Mississippi Supreme Court has consistently held that review of summary
judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 49 (¶8)
(Miss. 2005) (citing Hurdle v. Holloway, 848 So. 2d 183, 185 (¶4) (Miss. 2003)). A
summary judgment motion is properly granted only when no genuine issue of material fact
exists. Lowery, 909 So. 2d at 49 (¶8); M.R.C.P. 56(c). The moving party has the burden of
demonstrating that no genuine issue of material fact exists within the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits and that he is
entitled to judgment as a matter of law. Lowery at 49 (¶8); see also Davis v. Hoss, 869 So.
2d 397, 401 (¶10) (Miss. 2004) (noting that the court should review all evidence available
to it when making its decision).
DISCUSSION
¶6.
Jackson’s issue on appeal concerns the application and interpretation of section 95-5-
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29, which addresses the period of limitations of a timber trespass claim governed by section
95-5-10.
The Mississippi Supreme Court has determined that section 95-5-10 is the
exclusive remedy for “cutting trees without consent.” Stockstill v. Gammill, 943 So. 2d 35,
49 (¶ 24) (Miss. 2006); McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 791
(¶10) (Miss. 1998) (overruled on other grounds). The code section that governs the time
limit for filing a claim under section 95-5-10 is section 95-5-29, which provides that:
An action for the remedies and penalties provided by Section 95-5-10 may be
prosecuted in any court of competent jurisdiction within twenty-four (24)
months from the time the injury was committed and not after. All other actions
for any specific penalty given by this chapter may be prosecuted in any court
of competent jurisdiction within twelve (12) months from the time the injury
was committed, and not after; and a recovery of any penalty herein given shall
not be a bar to any action for further damages, or to any criminal prosecution
for any such offense as herein enumerated. A party, if he so elect[s], may,
under any of the provisions of this chapter, claim less than the penalty given.
(Emphasis added). While it is undisputed that Jackson failed to file his cause of action within
twenty-four months from the time of the injury, he argues that the discovery rule applies to
his injury and operates to toll the twenty-four-month limitations period until he knew or
reasonably should have known about the damage or trespass to his property.
¶7.
For the reasons set forth below, we find that application of the discovery rule to the
case at bar would be inconsistent with the existing case law on claims of timber trespass. As
a general rule, a plaintiff’s ignorance of his injury and its potential cause of action does not
operate to toll the statute of limitations; although, under certain circumstances, the “discovery
rule” may be applied when a cause of action does not accrue until a plaintiff knows or
reasonably should have known of his injury. Thomas B. Walter, Mississippi Limitations of
Actions, § 2:05.1 (2009-2010 ed. 2008). Some Mississippi statutes of limitation have an
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express provision for application of the discovery rule; however, if the discovery rule is not
expressly provided for, Mississippi courts have imputed the rule in cases of latent injury. Id.
(citing Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 205 (¶16) (Miss. 1999)
(application of discovery rule to a Mississippi Tort Claims Act cases involving latent
injuries)).
¶8.
A latent injury is defined 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.” Lowery, 909 So. 2d at 50 (¶12) (citing Donald v.
Amoco Prod. Co., 735 So. 2d 161, 168 (¶18) (Miss. 1999)). “The term ‘latent injury’ while
seemingly vague does have definitive boundaries. . . . [but] [b]ecause there is no bright line
rule, the specific facts of the case will determine whether the plaintiff knew or reasonable
[sic] should have known that an injury existed.” Id. at 51 (¶14). Accordingly, “if a latent
injury is not present, the discovery rule would not apply.” Id. at 50 (¶11).
¶9.
The Appellees rely on McCain for the proposition that the discovery rule does not
apply in timber trespass cases.
In McCain, the plaintiffs filed suit against Memphis
Hardwood for cutting trees and removing timber from the plaintiff’s property without
consent. The McCains testified that they did not learn of the timber trespass until over two
years after the trees had been cut. They contended that the statute of limitations should not
have run until they knew or should have known of the damage or trespass to their trees. The
Mississippi Supreme Court stated:
This Court has applied the discovery rule where the plaintiff will be precluded
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from discovering harm or injury because of the secretive or inherently
undiscoverable nature of the wrongdoing in question. . . . [a]n owner of trees
requires no unique expertise to realize when his trees have been taken without
his permission. Neither is the taking of such trees without consent of an owner
a secretive or inherently undiscoverable act which justifies the discovery rule.
Thus, application of a judge-made discovery rule would be inappropriate in the
instant case.
McCain, 725 So. 2d at 794 (¶23).
¶10.
Jackson contends that Punzo v. Jackson County, 861 So. 2d 340 (Miss. 2003) stands
for the proposition that the discovery rule is applicable to all property cases including timber
trespass cases such as his own. He further argues that Punzo overrules McCain because a
careful reading of McCain indicates that applying the discovery rule is only inappropriate for
the precise issues and facts presented in McCain, rather than all timber trespass cases. We
find that Jackson’s interpretation of Punzo significantly overstates its holding, as Punzo does
not operate to overrule McCain.
¶11.
In Punzo, the supreme court applied the discovery rule to toll the twelve-month statute
of limitations of the Mississippi Tort Claims Act. Id. at 348 (¶30). Punzo suffered extensive
flood damage to his home over three years after Jackson County had negligently altered a
nearby bridge. Id. at 343 (¶5). When Punzo discovered that the negligent alteration of the
bridge was the cause of the flooding, he properly filed a complaint against the County. Id.
at 346 (¶21). The circuit court granted the County’s motion for summary judgment finding
that the statute of limitations had run on Punzo’s claim, and Punzo appealed. The supreme
court 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 comprehend fully. Id. The
supreme court further stated that “the discovery exception may be applied when it is
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unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Id.
¶12.
This Court recognized the limited applicability of the Punzo discovery exception in
Sims v. Bear Creek Water Association, 923 So. 2d 230, 233 (¶11) (Miss. Ct. App. 2005) by
noting that the discovery exception in Punzo applies only to latent injuries that may require
expert knowledge to discern that an injury has occurred. In Sims, the foundation of
plaintiffs’ home and driveway began shifting because of a faulty water main that was keeping
the subsoil too moist. Id. at 232 (¶3). The Simses hired a civil engineer who confirmed the
existence of the problem with the water system more than three years before they filed suit
against Bear Creek Water Association, which was at least partly responsible for the Simses’s
injury. Id. at 233-34 (¶¶11, 14). Unlike the plaintiff in Punzo, the Simses knew about the
problem with their foundation and its cause at least three years before filing suit. Id.
Accordingly, this Court refused to apply the discovery rule because the Simses had actual
knowledge of the facts that would have allowed them to bring a claim against Bear Creek
prior to the expiration of the applicable statute of limitations. Id. at 234 (¶14).
¶13.
We find that Punzo is easily distinguishable from McCain due to the latency of
Punzo’s injury which would require unique expertise to perceive the injury and identify the
source of the damage. 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. Punzo, 861 So. 2d at
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344 (¶14). Accordingly, Punzo’s injury was latent as defined by Lowery, and the discovery
rule was properly applied.
¶14.
On the other hand, the injury in McCain was immediately apparent to McCain merely
by his surveying the property with his naked eye. No unique expertise was necessary for
McCain to discover his injury at the time when it occurred; nor was it unrealistic to expect
a layperson, such as McCain, to identify the source of his injury. Loss of timber, as opposed
to water flow and flood currents, is not secretive or inherently undiscoverable; therefore, it
is realistic for a layperson to perceive and identify such an injury. Accordingly, the court in
McCain refused to apply the discovery rule to McCain’s injury.
¶15.
Applying McCain to the instant case, we find it clear that the injury to Jackson’s
property is not latent since it does not require unique expertise to perceive or identify the
injury or its source; and it is not unrealistic to expect a layperson to identify the injury or the
source of the injury. The fact that he did not discover the injury until long after it occurred
and the statute of limitations had run is of no consequence since the injury was not actually
latent. Furthermore, the injury cannot be considered latent based on the inaccessibility of the
property, as Jackson claims. On appeal, Jackson cites the dissent in McCain for the
proposition that “trespass damage on large timber stands . . . is the sort of secretive or
inherently undiscoverable injury” where the discovery rule should apply. McCain, 725 So.
2d at 796 (¶35) (McRae, J., dissenting). Jackson argues that because he does not reside on
the property, and it is so secluded from public roads, he would have had to walk the property
to discover the cutting of his trees, which is not his duty. The McCain dissent proposed that
“the property owner should not be charged with an affirmative duty to constantly patrol the
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premises for damages.” Id. at 797 (¶37). However, we cannot accept the dissent’s rationale
as a majority of the Mississippi Supreme Court’s justices adopted the rule in McCain that the
discovery rule would not apply in such situations and rejected the dissent’s conclusions. We
find that McCain is on all fours with the instant case. Accordingly, application of the
discovery rule to Jackson’s time-barred claim is not appropriate. This issue is without merit.
CONCLUSION
¶16.
Because “[a]n owner of trees requires no unique expertise to realize when his trees
have been taken away without his permission,” and because the cutting and taking away of
trees is not a “secretive or inherently undiscoverable act,” application of the discovery rule
is inappropriate. McCain, 725 So. 2d at 794 (¶23). Therefore, we affirm the judgment of
the trial court.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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