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Holmes v. Defer

October 22, 1998

ANDREW LEE HOLMES
v.
LLOYD DEFER, INDIVIDUALLY, AND IN HIS CAPACITY AS SHERIFF OF YALOBUSHA COUNTY, M. H. SURRETTE, FREDDIE WINTERS, HENRY D. GRAY, AMOS SIMS AND BILL MEMINN, INDIVIDUALLY, AND IN THEIR CAPACITIES AS COUNTY COUNCILPERSONS AND AS SUPERVISORS OF YALOBUSHA COUNTY



Before Pittman, P.j., Roberts And Smith, JJ.

The opinion of the court was delivered by: Roberts, Justice, For The Court

DATE OF JUDGMENT: 06/25/97

TRIAL JUDGE: HON. GEORGE B. READY

COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

STATEMENT OF THE CASE

¶1. The Appellant, Andrew Lee Holmes (hereinafter "Holmes"), filed suit against the Appellee, Yalobusha County Sheriff Lloyd Defer (hereinafter "Defer"), along with M.H. Surrette, Freddie Winters, Henry D. Gray, Amos Sims, and Bill McMinn, the Supervisors of Yalobusha County, Mississippi. The action was brought in the Second Judicial District of Yalobusha County, Mississippi, on September 30, 1996. Each of the defendants were sued individually and in their official capacities.

¶2. Holmes' complaint alleged that on October 5, 1995, Sheriff Defer came to the home of William Holmes, Holmes' father, responding to a call for help, where Defer wrongfully shot and injured Andrew Lee Holmes "for no apparent reason." The complaint, which sought actual and punitive damages for Holmes' injuries, also asserted that the Yalobusha County Board of Supervisors was negligent in its training and supervision of the Sheriff's Department.

¶3. The defendant Supervisors and Sheriff Defer filed separate answers, denying any liability for Holmes' injuries as Sheriff Defer was acting in the self-defense of himself and others. Also, the defendants affirmatively pled that Holmes failed to file the requisite statutory notice of his claim within the ninety (90) day period mandated by Miss. Code Ann. § 11-46-11, a part of the Mississippi Tort Claims Act (hereinafter "MTCA").

¶4. On November 21, 1996, the Supervisors were dismissed without prejudice from the suit pursuant to the entry of an agreed order.

¶5. On May 9, 1997, the only remaining defendant, Sheriff Defer, filed a motion for summary judgment pursuant to M.R.C.P. 56. Sheriff Defer's motion argued that there was no genuine issue of material fact since he was acting in the scope and course of his duty as Sheriff, and that Holmes failed to give the requisite notice of his claim mandated by § 11-46-11.

¶6. On May 13, 1997, Sheriff Defer moved the court to compel Holmes to answer some outstanding discovery requests that were issued to Holmes in January of 1997. Defer further moved the court to issue sanctions pursuant to M.R.C.P. 11.

¶7. A hearing was held on these motions on June 16, 1997. The Circuit Court denied Defer's motion for Rule 11 sanctions. However, the court granted Defer's motion for summary judgment, finding that Holmes had failed to give the statutorily required ninety (90) days notice as prescribed in Miss. Code Ann. § 11-46-11. An order to that effect was entered by the court on June 25, 1997.

¶8. On July 14, 1997, Holmes filed a notice of appeal from the entry of the order granting Defer's motion for summary judgment. On appeal, Holmes raises the following points of error:

I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE BASIS OF FAILURE TO PROVIDE STATUTORY NOTICE TO THE LOCAL GOVERNMENTAL UNIT AS REQUIRED BY MISS. CODE. ANN. SECTION 11-46-11.

II. SHERIFF DEFER WAS NOT ACTING IN THE SCOPE OF HIS EMPLOYMENT SO NOTICE WAS NOT REQUIRED AND SUMMARY JUDGMENT WAS IMPROPER.

III. SHERIFF DEFER IS BARRED FROM EXERCISING A DEFENSE UNDER SECTION 11-46-11 SINCE HE HAD COMPLETE AND ACTUAL NOTICE OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE LAWSUIT.

IV. SECTION 11-46-11 STATES THAT NOTICE IS REQUIRED SOLELY TO THE LOCAL GOVERNMENTAL UNIT WHICH IS BEING SUED AND NOT TO THE INDIVIDUAL TORTFEASOR.

V. MISS. CODE ANN. SECTION 11-46-11 IS VOID FOR VAGUENESS AND OVERBREADTH AND THE TRIAL COURT ERRED IN USING IT AS A ...


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