Stockstill v. State

For the court.

¶ 1. Gaye Nell Stockstill and James Ray Blanchard, Sr., appeal from the judgment of the Circuit Court of Pearl River County dismissing their complaint against the State of Mississippi and several of its agencies (collectively “the State”) as barred by the statute of limitations. Because this suit was filed after the expiration of the controlling one-year statute of limitations for the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003), we find the circuit court properly dismissed the suit and affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. While canoeing on the Pearl River with a friend, James Ray Blanchard, Jr., drowned on December 28, 1998, near the site of a completed project co-sponsored by the United States and the State of Mississippi which was designed to restore the water flow of the Pearl River. Stocks-till and Blanchard filed suit in the United States District Court for the Southern District of Mississippi on March 29, 2000, against the U.S. Army Corps of Engineers, the State, and several agencies of the State, alleging damages arising out of their son’s drowning. Because proper notice was provided to the State, the tolling provision of the MTCA applied. On May 12, 2000, the State and its agencies filed a motion to dismiss the federal suit based upon their right under the Eleventh Amendment to the U.S. Constitution not to be sued in federal court. The motion was granted, and the suit was dismissed without prejudice on March 9, 2001.

¶3. On October 3, 2001, Stockstill and Blanchard filed this present civil action in the Circuit Court of Pearl River County. The State and its agencies filed a motion to dismiss on November 9, 2001. On June 20, 2002, the circuit court dismissed the suit finding the applicable one-year statute of limitations had expired. Stockstill and Blanchard appeal and raise the following issues for this Court’s consideration:

I. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE WRONGFUL DEATH CLAIM AGAINST THE STATE AND ITS AGENCIES WAS BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS EXPRESSED IN MISS. CODE ANN. § 11-46-11.

II. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT MISS. CODE ANN. § 15-1-69, THE “SAVINGS STATUTE” DID NOT APPLY TO THE STATE AND ITS AGENCIES.

III. WHETHER MISS. CODE ANN. § 11-46-11 IS UNCONSTITUTIONAL, AS IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION IN THAT IT DISCRIMINATES AGAINST INDIVIDUALS IN THE STATE OF MISSISSIPPI.

DISCUSSION

¶ 4. We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such, we sit in the same position as did the trial court. The scope of review of a motion to dismiss is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of her claim. Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). See also Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep’t of Corrections, 522 So.2d 219, 220 (Miss.1988).

I. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE WRONGFUL DEATH CLAIM AGAINST THE STATE AND ITS AGENCIES WAS BARRED BY THE ONE-YEAR STATUTE OF LIMITATIONS EXPRESSED IN MISS. CODE ANN. § 11-46-11.

II. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT MISS. CODE ANN. § 15-1-69, THE “SAVINGS STATUTE” DID NOT APPLY TO THE STATE AND ITS AGENCIES.

¶ 5. In this case of first impression under the MTCA, Stockstill and Blanchard argue that the savings clause in Miss.Code Ann. § 15-1-69 (Rev.2003) applies to the MTCA, thus tolling the exclusive one-year statute of limitations found in Miss.Code Ann. § 11-46-11 (Rev.2002). However, we find that this result is at odds with the texts of Miss.Code Ann. §§ 11-46-11 and 15-1-1 (Rev.2003) and this Court’s repeated holdings that the MTCA indubitably mandates a one-year statute of limitation be applied to any and all actions brought under the Act.

¶ 6. Miss.Code Ann. § 11-46-11(3) specifically states:

The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

(emphasis added). Through the strict language of the statute, the legislative intent is clear on the controlling statute of limitations.

¶ 7. Miss.Code Ann. § 15-1-1 provides further guidance that § 15-1-69 does not apply to the MTCA. Section 15-1-1 reads:

The provisions of this chapter shall not apply to any suit which is or shall be limited by any statute to be brought within a shorter time than is prescribed in this chapter, and such suit shall be brought within the time that may be limited by such statute.

(emphasis added). Because the MTCA has a one-year statute of limitation which is significantly shorter than the catch all three-year statute of limitation, the one-year statute of limitation found in § 11-46-11 is controlling.

¶ 8. Because we find that pursuant to §§ 11-46-11 and 16-1-1, § 16-1-69 does not apply to the MTCA, it is also worthy to note that non-tort claims act cases, e.g., Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239 (Miss.2002), and Norman v. Bucklew, 684 So.2d 1246 (Miss.1996), are not controlling as to the applicability of § 16-1-69.

¶ 9. Up until 2000, this Court had continuously held that Miss.Code Ann. § 15 — 1— 59 (Rev.2003), the minors savings clause, did not toll the one-year statute of limitation of the MTCA. In Marcum v. Hancock County School Dist., 741 So.2d 234 (Miss.1999), a seventeen-year-old minor filed suit by and through her parents against the school district after suffering injuries while riding on the school bus. Id. at 235. However, the suit was filed one year and nine months after the alleged accident. Id. The circuit court dismissed the suit finding the one-year statute of limitations had expired. Id. On appeal Marcum argued the MTCA’s one-year statute of limitations was tolled by the minors savings clause. This Court affirmed the judgment of the circuit court, holding:

It is obvious that the Legislature intended the MTCA’s one (1) year statute of limitations to be the controlling measure of time applied to any actions brought under the Act. The statute’s use of the word “shall” represents a firm mandate and unambiguously closes the door of interpretation concerning which statute of limitations applies to the MTCA.

We hold that § 11-46-11’s one (1) year statute of limitations is not tolled by § 15-1-59’s minor savings clause. The MTCA clearly mandates that a one (1) year statute of limitations be applied to any actions brought under the Act. Additionally, § 15-1-59’s minor savings clause only applies to actions within that chapter and not to the MTCA.

Id. at 236-38.

¶ 10. In Hays v. Lafayette County School Dist., 759 So.2d 1144 (Miss.1999), a minor, by and through her mother, sued the school district after suffering injuries while riding on the school bus. Id. at 1144. The complaint was filed two years and six months after the alleged accident. Id. The circuit court granted the district’s motion to dismiss after finding the suit was barred by the one-year statute of limitations. Id. at 1144-45. As in Marcum, Hays argued the one-year statute of limitations of the MTCA was tolled by the minors savings clause. Finding that the Legislature had contemplated the procedural limitation of a one-year statute of limitations, this Court held again that the minors savings clause did not toll the one-year statute of limitations in § 11-46-11. Id. at 1148.

The savings clause of § 15-1-59 does apply to a wide range of actions within that chapter, which shows the careful considerations of the Legislature in carving out exceptions under that Act and others. This logic is understandable with regard to discovery of negligence in latent injury cases, where a physical manifestation of injury may be delayed. But the reasoning behind a specific statute of limitations for the MTCA reflects the Legislature’s intent to limit waiver of sovereign immunity under Miss.Code Ann. § 11-46-5 (Supp. 1999), which sets the maximum limit of potential recovery by a plaintiff over a gradual time span.

Id. at 1147.

¶ 11. However, during the 2000 session, the Legislature chose to amend Miss.Code Ann. § 11-46-11 by adding subsection (4), which stated:

From and after May 15, 2000, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings clause in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

By affirmative legislative action, the MTCA now contains a provision by way of the 2000 and 2002 amendments which effectively creates a minors savings clause thus tolling for minors the running of the applicable limitations period found in subsection (3).

¶ 12. In his opinion and order finding Stockstill and Blanchard failed to comply with the filing requirements of the MTCA, the trial judge stated:

The state legislature has had numerous opportunities to amend the MTCA to include such language as is in § 15-1-69 but it has chosen not to do so. As an example, in 1999 the Mississippi Supreme Court handed down its decision in Hays v. Lafayette County School District, 759 So.2d 1144. In that case the Court was asked to extend the minor savings clause, § 15-1-59, to the MTCA and the Court refused to do so, stating the one year statute of limitations in the act was exclusive. Id. at 1147. Following the Hays decision, the legislature amended § 11-46-11 by adding subsection (4) which extended a savings clause for injured minors and persons of unsound mind. § 11^16-11(4) reads:

From and after May 15, 2000, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings clause in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

The Mississippi Supreme Court’s holding in Hays is applicable to this case in the sense Plaintiffs wish for this Court to carve out a similar exception to the MTCA by applying § 15-1-69. This Court will not save Plaintiffs’ case by so ruling. Plaintiffs arguably brought their suit in the wrong court within the one year statute of limitations when the notice and tolling provisions are taken into account, but there is simply no provision applicable to the MTCA which would act to correct Plaintiffs’ error in attempting to sue the state in federal court.

¶ 13. We find that the learned trial judge was eminently correct. Following the strict language of the statute and based upon previous case law, we affirm the judgment of the circuit court. While § 11 — 46—11 makes no mention of a savings clause, other than for minors, § 15-1-1 specifically states § 15-1-69 will not apply if there is a shorter statute specified elsewhere. If it is the intent of the Legislature for a savings clause to apply to the MTCA, it will be in the power of the Legislature to amend the statute just it did in 2000 and 2002. The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. “[0]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature.” Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986) (citing Baker v. State, 327 So.2d 288 (Miss.1976); Carter v. Harrison County Election Comm’n, 183 So.2d 630 (Miss.1966); Beard v. Stanley, 205 Miss. 723, 39 So.2d 317 (1949)). “Our role is to determine the legislative intent and constitutionality of acts passed by the Legislature, and if we interpret a statute contrary to the intent or will of the Legislature, that body has the absolute authority to change the statute to suit its will.” Board of Sup’rs of Lamar County v. Hattiesburg Coca Cola Bottling Co., 448 So.2d 917, 924 (Miss.1984) (Hawkins, J., concurring in part & dissenting in part).

III. WHETHER MISS. CODE ANN. § 11-46-11 IS UNCONSTITUTIONAL, AS IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION IN THAT IT DISCRIMINATES AGAINST INDIVIDUALS IN THE STATE OF MISSISSIPPI.

¶ 14. Stockstill and Blanchard argue for the first time on appeal that the MTCA violates the equal protection clause of the fourteenth amendment of the United States Constitution and discriminates against individuals in Mississippi. In Marcum, supra, we reaffirmed the well-established principle that, “[T]his Court has also consistently held that errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned.” 741 So.2d at 238 (quoting Ellis v. Ellis, 651 So.2d 1068 (Miss.1995) (citing Patterson v. State, 594 So.2d 606, 609 (Miss.1992)). See also Contreras v. State, 445 So.2d 543, 544 (Miss.1984); Smith v. State, 430 So.2d 406, 408 (Miss.1983)). Therefore, these claims are procedurally barred and are dismissed.

CONCLUSION

¶ 15. We are confronted today with an absolutely tragic death of a young man-an event which consequentially inflicts extreme grief and hardship on an innocent family and friends. However, our interpretation of clear legislative intent based on the unambiguous provisions of the Mississippi Tort Claims Act and our application of prior case law guide us unhesitatingly to the conclusion we reach today. Because the one-year statute of limitations had run, the trial court properly dismissed this action. Therefore, we affirm the trial court’s judgment.

¶ 16. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

. Miss.Code Ann. § 15-1-69 states:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated; by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff's death, commence such new action, within the said one year.

. The 2002 amendment, in subsection (4), substituted "April 1, 1993,” for “May 15, 2000.”