Hood v. City of Pearl

333 So.3d 73

Anthony K. HOOD and Barbara L. Hood, Appellants

v.CITY OF PEARL, Mississippi, Appellee

NO. 2020-CA-00936-COA

Court of Appeals of Mississippi.

November 9, 2021

Rehearing Denied February 8, 2022

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

ATTORNEYS FOR APPELLEE: WALKER REECE GIBSON, REBECCA SUZANNE BLUNDEN, Ridgeland, LAWRENCE DILLON KING III

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. After significant rainfall, Anthony and Barbara Hood's home in Pearl, Mississippi, would flood. The Hoods sued the City of Pearl for negligence, and the City filed a motion for summary judgment. The Rankin County Circuit Court granted summary judgment, finding that the City was immune from liability under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2019)—specifically, discretionaryfunction immunity pursuant to section 11-46-9(1)(d).

¶2. On appeal, the Hoods assert that (1) the trial court mischaracterized their negligence claim and erred by granting summary judgment in favor of the City,¹ and (2) the trial court erred in failing to require the City to answer discovery and failing to allow additional discovery before it considered the City's summary judgment motion. We reverse the trial court's grant of summary judgment in the City's favor and remand this case for further proceedings as detailed below.

FACTS AND PROCEDURAL HISTORY

¶3. On February 2, 2016; March 10, 2016; and January 2, 2017, the Hoods’ residence located on Amanda Drive in the Longmeadow Subdivision in Pearl, Mississippi, flooded after significant rainfall. According to the Hoods, the water overflowed from a "drainage ditch ... adjacent to [their] property[,]" which connected to a culvert under Amanda Drive that could not handle large amounts of rainfall. The Hoods also believed that at least some of the water flowed from a retention pond in the Woodson Bend Subdivision that also could not handle the rainfall.

¶4. On August 2, 2017, the Hoods filed a complaint against the City and Lost Pine Development LLC for negligence, private nuisance, continual trespass, and vicarious liability.² Among other allegations, the Hoods alleged that the defendants were responsible for ... inspecting [and] maintaining ... the Woodson Bend Part One common area storm water detention pond and the drainage ditches and system that serves Woodson Bend and Longmeadow Subdivision, which were inadequate to control runoff and are prone to overflow." The Hoods further alleged that "[d]ue to improper construction, development, inspection and maintenance, the storm system was prone to clog with debris which prevents the rainwater from draining properly and leads to flooding."

¶5. With respect to their negligence claim, the Hoods asserted that the defendants were negligent in:

a. Failing to engineer, develop, construct, and/or build a proper and suitable drainage system to serve the properties ... including the Plaintiffs’ property ...;

b. Failing to engineer, develop, construct, and/or build a[n] adequate, proper and suitable [r]etention pond to serve the properties at Woodson Bend Subdivision, which would not cause unnecessary back up and flooding ... in Longmeadow Subdivision, including the Plaintiffs’ property ...;

c. Allowing an inadequate drainage system, ditches and culverts including but not limited to the drainage ditch adjacent, ditches and culverts to and/or which services the Plaintiffs’ property ...;

d. Allowing an inadequate [r]etention pond to serve the properties situated at Woodson Bend Subdivision, which caused unnecessary back up and flooding ... in Longmeadow Subdivision, including the Plaintiffs’ property ...;

e. Failing to inspect and/or maintain the drainage system, ditches and culverts including but not limited to the drainage ditch adjacent, ditches and culverts to and/or which services the Plaintiffs’ property ...;

f. Failing to inspect and/or maintain the [r]etention pond used to serve the properties situated at Woodson Bend Subdivision, which caused unnecessary back up and flooding ... in Longmeadow Subdivision, including the Plaintiffs’ property ...; [and/or]

g. Other acts or omissions encompassed within the Defendants’ duties to citizens, residents[,] and property owners, including but not limited to the Plaintiffs, to be shown at trial.

¶6. The Hoods alleged in their complaint that the defendants "knew or should have known that drainage ditches and/or culverts along Amanda Drive as well as the drainage system of Woodson Bend Subdivision and the detention pond [were] inadequate ... such that they were unable to properly drain and divert large amounts of rainfall which may fall within a short period of time"; that the defendants knew or should have known that the drainage system was in need of maintenance "in order to remove tree roots, stumps, and/or other debris and obstructions ..."; and that the defendants "failed to take any corrective action to prevent the flooding, ... failed to properly investigate the matter, failed to make any studies to determine the cause of the problem ... [or] to do anything that would stop and/or alleviate the flooding that damaged the [Hoods’] property."

¶7. The City filed an answer and asserted, among other things, that the Hoods’ claims were barred by the MTCA.

¶8. In February 2018, the Hoods filed a notice of service of request for admissions, interrogatories, and production of documents. In March 2019, however, the City filed a motion for summary judgment without responding to the Hoods’ discovery requests.³

¶9. In the motion for summary judgment, the City asserted that the retention pond was located on private property and therefore was not the City's responsibility. As to the culvert, the City asserted that it was not within city limits at the time it was installed, and therefore the City could not be liable for any claims of negligence based on its engineering or construction. Regarding the Hoods’ claim that the City failed to maintain the culvert, the City asserted that it had statutory discretion as to the maintenance of culverts. Alternatively, the City asserted that it took corrective action to maintain the culvert once it was notified of an issue. Attached to the City's motion was an affidavit executed by Griffin Bond, who was employed as the City's Public Works Superintendent from 2012 to 2016. In his affidavit, Bond confirmed that the City cleaned and repaired its culverts when it became aware of an issue. For example, Bond stated that he oversaw the removal of debris from the culvert after the Hoods notified the City of the issue in May 2014. Additionally, after the Hoods notified the City that their house flooded in February 2016, Bond assisted with the removal of debris and the replacement of a damaged section of the culvert. Bond also stated in his affidavit that after the Hoods notified the City that their house flooded again in March 2016, debris was removed, and the entire culvert was replaced.

¶10. In April 2019, the Hoods filed a response in opposition to summary judgment. The Hoods asserted that the trial court should deny summary judgment because a question of fact existed as to the City's failure "to maintain the drainage system [relating to the Hoods’ property] as well as the issue of the size and maintenance of the culvert." They further asserted that the City's "failure to maintain the drainage system and inspect the system prior to and after the flood of [the Hoods’ property] on February 2, 2016" all constitute negligence on the City's part. The Hoods asserted that the City had notice of flooding on their property even before February 2, 2016, as evidenced by the complaint filed by the previous property owner alleging that the property flooded on September 5, 2011, as a result of the City "failing to inspect and/or maintain the drainage system," as stated in that complaint, which was attached as an exhibit to the Hoods’ response. Excerpts of Anthony Hood's deposition were also attached to the Hoods’ response, which showed that Anthony had a conversation with the mayor of Pearl about the flooding problem in February 2016 after the first flooding incident the Hoods experienced. The mayor indicated that water flow studies needed to be completed in an attempt to fix the flooding problem, and the mayor also told Anthony Hood about the house flooding before the Hoods bought it.

¶11. Also attached to the Hoods’ response was an inspection report from Craig Evans, the president of Evans Construction Company LLC, who inspected the Hoods’ property in February 2016. Evans concluded that the property had "a severe and inadequate drainage condition" and an undersized culvert. Evans believed that three factors could have caused the flooding: (1) "development(s) upstream redirecting more drainage to [the] site than usual," (2) "development(s) downstream slowing the rate of drainage from [the] site than usual," or (3) "an undersized culvert." The Hoods also hired hydraulics expert Robert Millette, whose letter report was also attached to the Hoods’ response. Like Evans, Millette observed that upstream developments were likely redirecting more drainage toward the Hood's property, contributing to flooding.

¶12. In its reply, the City asserted that all the allegations in the Hoods’ complaint "f[e]ll within the discretionary immunity protections of [the MTCA]."

¶13. In May 2019, the Hoods’ attorney filed a "Rule 56(f) Affidavit." See M.R.C.P. 56(f). In the affidavit, the Hoods’ attorney stated that the City had not responded to discovery and asked the court to require the City to respond, continue the matter, and allow depositions to be taken. In particular, he explained the following in his affidavit:

The discovery responses are needed for discovery purposes to demonstrate that City of Pearl was negligent in its maintenance of the culvert and the ditches on Amanda Drive as alleged in the Plaintiffs’ Complaint; that Plaintiffs seek to take depositions; and that discovery

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