Esco v. Madison Cnty.

331 So.3d 545

Irene ESCO, Appellant

v.MADISON COUNTY, Mississippi, Appellee

NO. 2020-CA-01013-COA

Court of Appeals of Mississippi.

November 9, 2021

ATTORNEY FOR APPELLANT: J. PEYTON RANDOLPH II, Ridgeland

ATTORNEYS FOR APPELLEE: WILLIAM ROBERT ALLEN, KATELYN ADELE RILEY, Brookhaven

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Irene Esco appeals the Madison County Circuit Court's denial of her motion to alter or amend its prior ruling that dismissed without prejudice her personal injury case against Madison County, Mississippi. Esco claims that the denial was manifestly unjust because she had given pre-suit notice to the County and that the circuit court should have allowed her to amend her complaint to add reckless-disregard language to her negligence claims against the County, whose deputy sheriff had rear-ended her in a traffic accident. From a review of the record and relevant precedent, we affirm the circuit court in denying Esco's motion to alter or amend its prior ruling and in dismissing Esco's complaint. However, the dismissal should be with prejudice.

Facts

¶2. On July 9, 2016, at approximately 4:20 p.m., Irene Esco was driving her 2014 Chevrolet Captiva on Highway 51 near Sowell Road in Madison County, Mississippi. As she was slowing for a stop, she was hit from behind by a Madison County Sheriff's Department SUV (a 2014 Chevrolet Tahoe) driven by Johnathan Lumbley. The accident report reflects that the SUV had failed to yield the right-of-way and was following too close.

¶3. Claiming injuries from the accident, on June 28, 2017, Esco sent a notice of claim letter by certified mail to Sheriff Randy Tucker of the Madison County Sheriff's Department and Trey Baxter, President of the Madison County Board of Supervisors. In the letter, Esco raised claims against "the Madison County Sheriff's Department, third party contractor, and/or its employees" for the negligent operation of the SUV that caused the accident and injuries to Esco. The letter claimed that the negligent actions of the driver were vicariously imputed to the sheriff's department. Additionally, Esco claimed that the department was liable for the negligent hiring, supervision, and training of the driver/deputy. Further, the letter stated that notice was being sent to the president of the Madison County Board of Supervisors "due to the fact that there may be contractual relationships with Madison County and/or the Madison County Sheriff's Office which would allow these entities to claim coverage under the provisions of the Mississippi Tort Claims Act."

¶4. The sheriff's department received the notice of claim letter, but the signed receipt is undated. In her court complaint, Esco claimed that she served the notice to the sheriff "on or by July 7, 2017." The delivery receipt to "the Madison Co. Board of Supervisors" was signed on July 6, 2017.

¶5. On January 9, 2018, Esco filed her complaint against the Madison County Sheriff's Department and John Does 1-5 in the Madison County Circuit Court. In the complaint, Esco identified John Doe 1 as the driver of the SUV, but she named no individual officer and alleged that the identities of the other John Does were unknown to her. Of these defendants, Esco said that each was liable in some manner for "negligence, gross negligence, wanton and reckless misconduct." Yet Esco only pleaded that the accident was caused by the "alleged negligent or grossly negligent" actions of the SUV driver in failing to yield and following too close. Esco claimed "Negligence/Gross Negligence" as her causes of action, saying the "[d]efendants (named and John Does) breached their duty of reasonable care, skill, and diligence owed to Plaintiff, and were thus negligent and/or grossly negligent in actions and/or inactions." She also claimed that the sheriff's department was vicariously liable for the negligence of its employee/driver. Esco sought compensatory and punitive damages as well as a trial by jury.

¶6. The record reflects that Esco only had summons issued and executed upon Sheriff Tucker at the Madison County Sheriff's Department—not on anyone else affiliated with the County, e.g., the chancery clerk, the president of the Board of Supervisors, or the clerk of the Board of Supervisors.

¶7. On March 21, 2018, the Madison County Sheriff's Department filed an answer. In it, the department denied that it was a governmental entity for purposes of suit. It also raised numerous Mississippi Tort Claims Act (MTCA) and other defenses. On March 25, 2018, the department filed a Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss on the basis that it was not a governmental entity capable of being sued. The docket does not reflect the filing of any notice of hearing on this motion.

¶8. On April 18, 2018, the department propounded interrogatories and requests for production of documents to Esco and "designated a witness." On April 27, 2018, the department noticed Esco's deposition.

¶9. On January 16, 2019, the parties submitted, and the circuit court signed, an agreed order that substituted Madison County for the sheriff's department and dismissed the department from the action. But Esco never sent a notice of claim letter to the Madison County Chancery Clerk, the statutorily required recipient for claims against the County under Mississippi Code Annotated section 11-46-11(2)(a)(i) (Rev. 2019). Nor did Esco have process issued or served on the president or clerk of the Board of Supervisors as required by Mississippi Rule of Civil Procedure 4(d).

¶10. On July 23, 2019, Madison County filed a motion to strike the request for punitive damages and a trial by jury because the MTCA specifically provides for a bench, not a jury, trial ( Miss. Code Ann. § 11-46-13 (Rev. 2019)) and excludes punitive damages ( Miss. Code Ann. § 11-46-15(2) (Rev. 2019)). Simultaneously, Madison County filed a motion for a judgment on the pleadings pursuant to Rule 12(c) of the Mississippi Rules of Civil Procedure, claiming (1) that Esco had failed to comply with the MTCA notice requirements because she failed to serve the chancery clerk with her notice of claim letter and (2) that the complaint failed to state a claim against the County because it failed to plead reckless disregard, which the MTCA requires to establish police officer liability under Mississippi Code Annotated section 11-46-9(1)(c) (Rev. 2019). This motion was noticed for hearing, although the original date is not reflected in the record.

¶11. The hearing on the County's motions was reset for October 16, 2019. Before then, on July 31, 2019, Madison County renoticed Esco's deposition, and on August 1, 2019, Esco noticed the deposition of Deputy Johnathan Lumbley. At the later hearing, Esco argued that the County would not be prejudiced if her complaint was amended because the parties had taken depositions, exchanged written discovery, and only needed a trial date.¹

¶12. Two days before the scheduled hearing on the County's motions, on October 14, 2019, the parties agreed that Esco would confess the motion to strike the jury demand and demand for punitive damages, and that the hearing on the motion to dismiss would be continued, giving Esco additional time to respond. However, before the agreement was communicated to the circuit court, on October 15, 2019, the court signed two orders—one striking the jury trial and punitive damages claims and another granting the County's motion for a judgment on the pleadings and dismissing Esco's case. The orders were entered by the clerk on October 16, 2019.

¶13. On October 28, 2019, Esco filed a motion to alter or amend the judgment under Mississippi Rule of Civil Procedure 59 or, alternatively, amend the complaint. She included a request for an extension of time to respond to the County's motion for a judgment on the pleadings. In her motion, she explained the pre-hearing agreement of the parties, and that her failure to file an initial response to the County's motions was due to her counsel's undergoing cancer treatments. Esco also argued that she had provided pre-suit notice to the County. Alternatively, Esco asked that the circuit court allow her to amend her complaint to name the correct party and change the cause of action from negligence/gross negligence to reckless disregard.

¶14. The County opposed this motion, and the circuit court heard argument on June 17, 2020. Esco's counsel reviewed the October 14, 2019 agreement of the parties and how the orders had been entered before their agreement to continue the motions hearing was communicated to the court. Esco's attorney also told the court that he had been undergoing cancer treatments to explain his failure to timely respond to the County's motions. After further argument on the law, the circuit court took the matter under advisement. On August 11, 2020, the circuit court issued an order denying Esco's Rule 59 motion and her request to amend her complaint. From this order, Esco appeals.

¶15. Esco argues that the circuit court abused its discretion in denying her motion to alter or amend the judgment or, alternatively, to allow Esco to amend her complaint because (1) Esco showed a need to prevent manifest injustice and (2) an amended complaint would have cured any improper pleading of her cause of action.

Standard of Review

¶16. This Court will not reverse a trial court's ruling granting or denying a Rule 59 motion "absent an abuse of discretion or if allowing the judgment to stand would result in a miscarriage of justice." Freeman v. CLC of Biloxi LLC , 119 So. 3d 1164, 1167 (¶10) (Miss. Ct. App. 2013). But a trial court may grant a Rule 59 motion to prevent a manifest injustice. Singleton v. Buford , 282 So. 3d 493, 498 (¶16) (Miss. Ct. App. 2019). Appellate courts review the application of the MTCA requirements de novo. Lee v. Mem'l Hosp. at Gulfport , 999 So. 2d 1263, 1266 (¶8) (Miss. 2008).

Discussion

I. Whether the circuit court erred in dismissing Esco's complaint...