Gregory Farmer v. Bolivar County Sheriff Department
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-01913-COA
GREGORY FARMER
APPELLANT
v.
BOLIVAR COUNTY, MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
8/14/2003
HON. LARRY O. LEWIS
BOLIVAR COUNTY CIRCUIT COURT
ELLIS TURNAGE
TAMEKIA ROCHELLE GOLIDAY
BENJAMIN E. GRIFFITH
DANIEL JUDSON GRIFFITH
CIVIL - PERSONAL INJURY
MOTION FOR SUMMARY JUDGMENT
GRANTED IN FAVOR OF APPELLEE.
REVERSED AND REMANDED: 03/08/2005
BEFORE LEE, P.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
On January 16, 2002, Gregory Farmer filed a complaint against the City of Rosedale and Bolivar
County, alleging that Bolivar County and the City of Rosedale were negligent in maintaining their property
and public pathways in a reasonably safe condition, and that as a result of their failure to do so, he, while
walking on a public pathway across the southwest corner lawn of the courthouse in Rosedale, stepped into
a deep, uncovered hole, injuring his back and left knee. Later, Farmer filed two motions for leave to amend
his complaint. Bolivar County filed a motion to dismiss, alleging that the complaint was time barred by
Mississippi Code Annotated section 11-46-11 (3) (Revised 2002).1
¶2.
Because of the nature of the pleadings, the trial court treated the motion to dismiss as a motion for
summary judgment and entered an order granting the motion. The trial court’s rationale for granting
summary judgment was that Farmer failed to file his lawsuit within the time required by law. The trial court
also denied as moot Farmer’s first and second motion for leave to amend the complaint.
¶3.
Farmer now appeals, asserting the following issues: (1) the trial court erred in granting Bolivar
County’s motion for summary judgment since the only communication between the parties substantially
compliant with the notice requirements of the Mississippi Tort Claims Act (MTCA) was filed on August
3, 2001, and the complaint was timely filed prior to the expiration of the statute of limitations, (2) the trial
court abused its discretion when it denied Farmer’s motions for leave to amend his complaint since the
complaint was timely filed.
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This section provides in pertinent part:
All actions brought under the provisions of this chapter [Mississippi Code Annotated
sections 11-46-1 through 11-46-23 (Rev. 2002), commonly referred to as the Mississippi
Tort Claims Act] shall be commenced within one (1) year next after the date of the
tortious, wrongful or otherwise actionable conduct on which the liabilityphase of the action
is based, and not after; provided, however, that the filing of a notice of claim as required
by subsection (1) of this section shall serve to toll the statute of limitations for a period of
. . . one hundred twenty (120) days from the date the chief executive officer or other
statutorily designated official of a municipality, county or other political subdivision receives
the notice of claim, during which time no action may be maintained by the claimant unless
the claimant has received a notice of denial of claim. After the tolling period has expired,
the claimant shall then have an additional ninety (90) days to file any action against the
governmental entity served with proper claim notice. However; should the governmental
entity deny any such claim, then the additional ninety (90) days during which the claimant
may file an action shall begin to run upon the claimant’s receipt of notice of denial of claim
from the governmental entity.
2
¶4.
We agree with Farmer that his complaint was filed timely. Consequently, we reverse and remand
this case for trial.
FACTS
¶5.
On or about August 7, 2000, Gregory Farmer stepped into a hole and injured his left knee and
back on the premises of the Bolivar County Courthouse in Rosedale, Mississippi. That same day, Farmer
reported the incident to an employee of the Bolivar County Sheriff’s Department, and an incident report
was completed.
¶6.
On August 23, 2000, Charles Kautz, senior claims representative for St. Paul Fire and Marine
Insurance Company, insurer for Bolivar County, sent a letter to Farmer acknowledging receipt of the
incident report and requesting additional information.
¶7.
On November 14, 2000, Farmer’s counsel sent a letter of representation to Kautz requesting that
all further correspondence regarding the claim be directed to his office. On November 29, 2000, Kautz
wrote a letter to Farmer’s counsel acknowledging Farmer’s claim. On July 19, 2001, Kautz wrote a letter
to Farmer’s counsel requesting verification of Farmer’s claim for special damages. On August 3, 2001,
Farmer’s counsel served Wanda Ray, Bolivar County Administrator, on behalf of Bolivar County with a
written notice of Farmer’s claim.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶8.
Farmer argues that the trial court erred in granting Bolivar County’s motion for summary judgment
because his complaint was timely filed prior to the expiration of the statute of limitations. It is Farmer’s view
that the one-year statute of limitations provided by the MTCA was tolled for 120 days beginning on August
3, 2001, the date of the only communication between the parties substantially compliant with the notice
requirements of the MTCA. Farmer further asserts that, pursuant to the provisions of MTCA, a claimant
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has an additional ninety days, following the tolling period, in which to file a claim. Therefore, according to
Farmer’s calculations, he had until March 3, 2002, to file his lawsuit.
¶9.
Bolivar County counters that a single notice is not required and that the communications between
the parties between August 7, 2000, and November 29, 2000, constituted substantial compliance with the
notice provisions of the MTCA and thereby triggered the 120-day tolling period of the one-year statute
of limitations. Consequently, according to Bolivar County, the one-year statute of limitations recommence
running after November 29, 2000, resulting ultimately in its expiration well before Farmer filed his lawsuit.
¶10.
The Mississippi Supreme Court in Steven Page v. The University of Southern Mississippi, 878
So. 2d 1003 (Miss. 2004), compels the finding that Farmer’s complaint was timely filed.2 In Page, the
Mississippi Supreme Court stated:
Based on a literal interpretation of the statute, the one year statute of limitations begins to
run on the date the cause of action occurs or accrues. . . . The statute is tolled for either
95 or 120 days, depending on the agency, from the day notice is received by the agency.
Assuming arguendo that there is no response or denial from the agency, the statute will
begin running again after the 95 or 120 day period ends. The claimant would then have
the balance of the original one year statute not used at the time notice was received to file
the suit, as the tolling period merely suspended the running of the statute. In addition to the
one-year statue of limitations provided by Section 11-46-11, the claimant has an additional
90 days granted by the statute in which to file suit. If the agency denies the claim, the
tolling period ends immediately. The claimant is then left with the remaining days in the
original one-year limitations period not used at the time notice was received plus the
additional 90 days in which to file suit.
Id. at (¶12).
¶11.
In applying the holding of Page to the facts in our case, it becomes readily apparent that Farmer’s
complaint was timely. Farmer filed his complaint on January 16, 2002. Assuming arguendo that Farmer
2
It is appropriate to point out that Page was decided after the parties had filed their briefs in this
case. Therefore, neither the parties nor the trial court had the benefit of Page when the motion for summary
judgment was granted by the trial court.
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gave notice on August 7, 2000, the statute of limitations was tolled for 120 days or until December 5,
2000. After the tolling period ended, the one-year statute recommenced running. At that time, there would
have been 365 days remaining, making the one year expire on December 5, 2001. Adding the additional
90 days, in which a claimant has to file suit to this date would extend the deadline for filing to March 5,
2002. Farmer filed on January 16, 2002. Therefore, we find that Farmer’s suit was timely filed within the
statutorily allotted time.
¶12.
As already mentioned earlier in this opinion, the trial court ruled that the claims, which Farmer
sought to include via his motions to amend, were “futile” in light of the court’s ruling on the motion for
summary judgment. Since we are reversing the trial court’s grant of summary judgment, the claims which
Farmer sought to assert cannot now be considered “futile.” However, since the trial court did not rule on
the merits of Farmer’s motions to amend, we find it inappropriate for us to do so. Nevertheless, suffice
it to say that under our rules, amendments should be liberally allowed. We are confident that, on remand,
the trial court, in reconsidering the motions to amend, will be guided by our well-developed jurisprudence
in this regard.
¶13. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED
AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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