Hood v. A & A Excavating Contractors, Inc.

338 So.3d 145

Anthony K. HOOD and Barbara L. Hood, Appellants

v.A & A EXCAVATING CONTRACTORS, INC., Asbury Lane Village, LLC and ALV Development, LLC, Appellees

NO. 2021-CA-00207-COA

Court of Appeals of Mississippi.

May 17, 2022

ATTORNEYS FOR APPELLANTS: JAMES D. SHANNON, Hazlehurst, HEATHER LYNN HALL

ATTORNEYS FOR APPELLEES: ROBERT P. THOMPSON, JAMES A. BOBO, Brandon, MARK C. BAKER SR., Pelahatchie, MICHAEL ALLEN AKERS, Brandon, CHARLES BARTON WYNN JR., ADRIAN WESTBROOK MILLS

BEFORE WILSON, P.J., GREENLEE AND SMITH, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Anthony and Barbara Hood's home flooded in February 2016, March 2016, and again in January 2017. In December 2019, the Hoods sued a company that operated a nearby gravel pit and two entities that had been involved in the development of a nearby residential neighborhood. The Hoods alleged that their home had flooded as a result of the defendants’ negligence. The circuit court subsequently granted summary judgment in favor of the defendants, holding that the Hoods’ claims were barred by the general three-year statute of limitations, Miss. Code Ann. § 15-1-49(1) (Rev. 2019). On appeal, the Hoods argue that their complaint was timely filed based on the "discovery rule," id. § 15-1-49(2), and/or the "continuing tort doctrine." We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The Hoods bought a house in Pearl in 2013. Their house and property experienced flooding in February 2016, March 2016, and January 2017. The Hoods initially believed that the City of Pearl was responsible for the flooding due to the City's failure to properly maintain drainage ditches and culverts near their property. The Hoods sent the City a notice of claim in January 2017 and filed suit against the City in August 2017.¹

¶3. The Hoods hired an engineer, Robert Millette, to assist with their suit against the City. In his first report, dated April 16, 2018, Millette found that A&A Excavating Contractors LLC (A&A) and ALV Development Inc. (ALV) contributed to the flooding. Millette's second report, dated July 12, 2019, identified Asbury Lane Village LLC (Asbury) as an additional responsible party. According to Millette, A&A, ALV, and Asbury negligently failed to implement erosion control measures and stormwater prevention plans for a gravel pit (operated by A&A) and a residential neighborhood (developed by ALV and Asbury) located "upstream" from the Hoods. Millette found that their negligence caused "excessive sediment runoff and buildup" in drainage ditches and culverts near the Hoods’ house, which in turn caused or contributed to the flooding on the Hoods’ property.

¶4. The Hoods filed suit against A&A, ALV, and Asbury on December 13, 2019. The defendants subsequently filed motions for summary judgment. Among other grounds, the defendants argued that the Hoods’ claims were barred by the general three-year statute of limitations, Miss. Code Ann. § 15-1-49(1). The defendants argued that the statute of limitations began to run when the Hoods became aware of their injury (the flooding) and expired before the Hoods filed suit against the defendants in 2019. In response, the Hoods argued that under the "discovery rule," id. § 15-1-49(2), the limitations period did not begin to run until they received Millette's reports and learned that the defendants’ acts and omissions were a cause of the flooding. The Hoods also argued that their complaint was timely because the repeated flooding of their property constituted a "continuing tort."

¶5. Applying section 15-1-49(2), the circuit court held that "[o]nce the [Hoods’] property was damaged by a flood, the ‘injury’ was no longer ‘latent’ ...." The court reasoned that the limitations period began to run, at the latest, following the March 2016 flood and therefore expired before the Hoods filed suit against the defendants in December 2019. Accordingly, the circuit court granted summary judgment in favor of all three defendants. The Hoods filed a motion for reconsideration under Mississippi Rule of Civil Procedure 59(e), which the circuit court denied, and a notice of appeal.

ANALYSIS

¶6. We review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Angle v. Koppers Inc. , 42 So. 3d 1, 4 (¶6) (Miss. 2010). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). In responding to a summary judgment motion, the non-moving party "may not rest upon the mere allegations or denials of his pleadings, but ... by affidavits or as otherwise provided [by Rule 56 ], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

I. The "discovery rule" did not toll the statute of limitations.

¶7. All parties agree that the Hoods’ complaint is governed by the general three-year statute of limitations found in Mississippi Code Annotated section 15-1-49, which provides in relevant part:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss. Code Ann. § 15-1-49(1) - (2). The Hoods argue that under subsection (2), known as the discovery rule, the statute of limitations did not begin to run until they received Millette's first report in 2018 and learned that the defendants’ acts and omissions were a possible cause of the flooding.

¶8. The Hoods’ reliance on the discovery rule is misplaced. As our Supreme Court has explained, the plain language of "[s]ection 15-1-49(2) provides a discovery rule that delays the accrual of the cause of action until the plaintiff discovers or with reasonable diligence should have discovered a latent injury .... No provision of Section 15-1-49 provides that a plaintiff must have knowledge of the cause of the injury before the cause of action accrues, initiating the running of the statute of limitations." Angle , 42 So. 3d at 7 (¶18). Therefore, the Supreme Court has held that in cases governed by section 15-1-49, "causes of action accrue upon discovery of the injury, not discovery of the injury and its cause . Knowledge of the cause of the injury is irrelevant to the analysis ; rather, the inquiry is when the plaintiff knew or should have known of an injury." F & S Sand Inc. v. Stringfellow , 265 So. 3d 170, 174 (¶9) (Miss. 2019) (emphasis added) (brackets, quotation marks, and citations omitted) (quoting Am. Optical Corp. v. Est. of Rankin , 227 So. 3d 1062, 1068 (¶23) (Miss. 2017) ). Thus, in Rankin , a case filed by a former construction worker against a silica manufacturer, the Supreme Court "held that the applicable three-year statute of limitations began to run under the discovery rule at the time the worker sought treatment for chronic obstructive pulmonary disease rather than the date he was first diagnosed with silicosis by his retained expert pulmonologist."

Stringfellow , 265 So. 3d at 174 (¶8) (citing Rankin , 227 So. 3d at 1074 ). The statute began to run when the plaintiff discovered his injury (pulmonary disease ), not the later date on which he discovered its underlying cause (silica exposure). Id. Under section 15-1-49, a plaintiff has three years from the discovery of his injury to determine the cause(s) of the injury and file suit against the responsible party or parties.

¶9. The same analysis applies in this case. The Hoods knew that they had been injured when their house flooded in February 2016 and March 2016. The statute of limitations began to run against the Hoods by at least March 2016—"upon [their] discovery of the injury." Stringfellow , 265 So. 3d at 174 (¶9) (quoting Rankin , 227 So. 3d at 1068 (¶23) ). The fact that the Hoods initially blamed the City of Pearl rather than A&A, ALV, or Asbury is of no moment. To reiterate, "[k ]nowledge of the cause of the injury is irrelevant to the analysis " under section 15-1-49. Id. (emphasis added). The Hoods had three years from their discovery of the injury to determine its cause(s) and file suit against the responsible party or parties. Because they failed to do so, their claim is barred by the statute of limitations.

¶10. In arguing that their complaint was timely filed, the Hoods rely heavily on Punzo v. Jackson County , 861 So. 2d 340 (Miss. 2003), a case in which a homeowner sued a county under the Mississippi Tort Claims Act (MTCA), alleging that his home had flooded as a result of the county's negligent repairs to a nearby bridge. Id. at 342-43 (¶¶1-7). However, Punzo applied the MTCA's judicially created discovery rule,² not section 15-1-49(2). Id. at 343-47 (¶¶13-24). As our Supreme Court has explained, "[n]ot all discovery rules are created equal." Caves , 991 So. 2d at 154 (¶48). "In analyzing what the plaintiff must discover in order to trigger the running of the statute of limitations, we ordinarily are guided by the wording of a statute's discovery provision." Id. (emphasis added). In Caves , the Supreme Court specifically recognized that the discovery rule in MTCA cases differs significantly from the discovery rule in section 15-1-49(2). Id. at 154-55 (¶¶49-54). Under the MTCA's discovery rule, "the limitations period ... does not begin to run until ... the claimant knows or, in the exercise of reasonable diligence, should know of both the injury and the act or omission which caused it ." Id. at 155 (¶53) (emphasis added). Thus, in Punzo , the Supreme Court emphasized that the MTCA's one-year statute of limitations did not begin to run until the homeowner had...