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Milam v. Kelly

Court of Appeals of Mississippi

July 30, 2019

J.P. MILAM APPELLANT
v.
ANN KELLY AND JIM KELLY APPELLEES

          DATE OF JUDGMENT: 11/03/2017

          HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, HON. WILLIAM H. SINGLETARY JUDGE.

          ATTORNEY FOR APPELLANT: MICHAEL VERDIER CORY JR.

          ATTORNEYS FOR APPELLEES: DOUGLAS E. LEVANWAY MARK C. CARROLL ERIC JOSEPH DILLON CORY LOUIS RADICIONI SCOTT CHARLES CAMPBELL CHARLES EDWARD COWAN.

         EN BANC.

          CARLTON, P.J.

         ¶1. J.P. Milam filed a complaint against the City of Jackson, alleging that the City caused storm-drainage water to flood his home. Milam later amended his complaint to add his adjoining neighbors Jim and Ann Kelly as defendants. The Kellys moved for summary judgment, arguing that Milam's claim was barred by the statute of limitations and that Milam could not meet his burden of proof on his claims against the Kellys. The Hinds County Chancery Court entered an order granting summary judgment after finding that Milam's claim against the Kellys was barred by the statute of limitations and that Milam failed to provide evidence in support of his claims.[1]

         ¶2. Milam now appeals the chancellor's order granting summary judgment and asserts the following assignments of error: (1) the chancellor improperly applied the discovery rule; (2) Milam's claims of injunction, negligence, nuisance, and trespass were continuing torts that tolled the statute of limitations; (3) new claims for injunction, negligence, nuisance, and trespass accrued each time Milam's house flooded; (4) fraudulent concealment and equitable estoppel tolled the statute of limitations; and (5) the chancellor erred in finding that Milam failed to set forth facts in support of his claims.

         ¶3. Finding no error, we affirm the chancellor's order granting summary judgment.

         FACTS

         ¶4. In 2008, Milam purchased a home located on Sheffield Drive[2] in Jackson, Mississippi. The Kellys owned the adjoining property. Beginning in 2009, Milam suffered recurring problems with flash flooding, which caused water to enter his home. During the first flooding incident, Milam was out of town when the water entered his home. When a second flooding incident occurred on July 3, 2010, Milam took steps to investigate the matter. At that time, Milam investigated the City of Jackson's drains and drainage pipe between his property and the Kellys' property.

         ¶5. In 2011, Milam's house flooded twice. Milam met with the Kellys in January 2011 to discuss the flooding. According to Milam, Jim Kelly blamed the City of Jackson's clogged storm-water drains for the flooding.

         ¶6. In 2012, Milam's home flooded three times. In July 2012, Milam's counsel wrote a letter to the Kellys asking them to voluntarily provide information concerning the nature of the work they had done in their back yard. Jim Kelly responded by sending a letter dated August 3, 2012. In his letter, Jim Kelly stated that sometime in 2004, he connected a same-sized drainage pipe to the one extending from Milam's back yard. He confirmed that this work was done years before the Milams moved in, and he stated that the previous owners had never mentioned any flooding issues.

         ¶7. In the late summer or early fall of 2012, Milam spoke with his former neighbor George Thompson about the flooding. Thompson informed Milam that he lived in the house directly behind the Kellys' house for thirty years. According to Thompson, in 2008 or 2009, the Kellys replaced a chain link fence in their back yard with a wooden privacy fence. In August 2012, Milam hired George Guest, an engineer, to investigate the potential cause of flooding.

         ¶8. On October 26, 2012, Milam filed a complaint in chancery court against the City of Jackson[3] for negligence, trespass, and nuisance. Milam sought injunctive relief, asserting that the City of Jackson allegedly diverted storm-drainage water across his property and caused flooding to his home. The City of Jackson filed its answer and asserted that the flooding was caused by the acts or omissions of others. Milam claims that the City of Jackson suggested that the Kellys had installed a drainage pipe in 2004 that was too small. Milam later discovered that the Kellys' drainage pipe had exactly the same diameter as Milam's drainage pipe.

         ¶9. In November 2013, Milam again met with Guest and provided him with the additional information he learned about the Kellys replacing their chain link fence with a wooden fence. That same month, an engineer associated with Guest advised Milam by letter that "[w]hile this wood . . . fence may not be solely responsible for your drainage problem, it does appear to pose a significant problem for any surface storm drainage being conveyed in that drainage way."

         ¶10. On April 29, 2014, Milam amended his complaint to add the Kellys as defendants, asserting that they interrupted and altered downstream storm-water flow by replacing a chain link fence with a wooden fence, by changing the landscaping in their back yard, and by filling in an open drainage ditch.

         ¶11. On March 8, 2017, the Kellys filed a motion for summary judgment. In their motion, the Kellys argued that Milam's claim was barred by the statute of limitations and that Milam could not meet his burden of proof on his claims against the Kellys.

         ¶12. On November 3, 2017, the chancellor entered an order granting the Kellys' motion for summary judgment. The chancellor found that Milam's cause of action accrued, at the latest, on July 3, 2010-the date of the second flooding incident-and pursuant to Mississippi Code Annotated section 15-1-49, Milam had three years from that date to file suit against the Kellys. The chancellor held that because Milam filed his suit against the Kellys approximately three years and ten months after the date the cause of action accrued, Milam's action was barred by the statute of limitations. The chancellor also found that Milam failed to submit any evidence in support of his claim that the Kellys engaged in fraudulent concealment and therefore his claim that the statute of limitations was tolled failed. The chancellor later entered an order on December 13, 2017, certifying its November 3, 2017 order as a final judgment and dismissing Milam's claims against the Kellys with prejudice.

         ¶13. Milam now appeals.

         STANDARD OF REVIEW

         ¶14. We review a trial court's grant of summary judgment de novo. Dodd v. Hines, 229 So.3d 89, 95 (¶24) (Miss. 2017). Summary judgment is appropriate where "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). "The evidence must be viewed in the light most favorable to the party against whom the motion has been made, and the moving party bears the burden of demonstrating that no genuine issue of fact exists." Dodd, 229 So.3d at 95 (¶24) (quoting Young v. Meacham, 999 So.2d 368, 371 (¶13) (Miss. 2008)). "If there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the non-moving party." Id.

         ¶15. We review issues of law, including those concerning statutes of limitation, de novo. Ridgway Lane & Assocs. Inc. v. Watson, 189 So.3d 626, 628 (¶8) (Miss. 2016).

         DISCUSSION

         I. Statute of Limitations: Discovery Rule

         ¶16. Milam argues that the chancellor erred in finding that his claim against the Kellys was barred by the statute of limitations. Milam claims that the statute of limitations for Mississippi Code Annotated section 15-1-49 was tolled by the discovery rule. Miss. Code Ann. § 15-1-49(2). Milam asserts that the Mississippi Supreme Court has routinely applied the discovery rule to situations where it would be impractical to require a layperson to "ascertain" the negligence at the time it occurred. He cites two cases for support: Bennett v. Hill-Boren, P.C., 52 So.3d 364, 369 (¶13) ((Miss. 2011), and Neglen v. Breazeale, 945 So.2d 988, 990 (¶3) (Miss. 2006).

         ¶17. In his order granting summary judgment, the chancellor held as follows:

[Section] 15-1-49 (1) provides a general three (3) year statute of limitations for claims of negligence such as those brought on behalf of [Milam]. Mississippi case law is clear that the general three (3) year statute of limitations begins to run "upon discovery of the injury, not discovery of the injury and its cause." Angle v. Koppers[] Inc., 42 So.3d 1, 5 (Miss. 2010). [Milam's] home first flooded in 2009; conceivably, the cause of action could have accrued at that time. On July 3, 2010, [Milam] experienced recurring flooding of [his] home. At the latest, the statute of limitations began to run on the date of the discovered recurring flooding. Although [Milam] submit[s] that the statute of limitations did not begin to run until [he was] aware of some negligence on the part of [the Kellys], the same is not supported by statutory or case law. "No provision of [s]ection 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[.] Therefore, the cause of action accrued, at latest, on July 3, 2010, and [Milam] had three (3) years from that date to file suit against [the Kellys]. The current action was filed against [the Kellys] some four (4) years and ten (10) months after the initial flooding and some three (3) years and ten (10) months after July 3, 2010. Accordingly, the action is barred by the applicable statute of limitations. [Milam has] failed to submit any evidence that [the Kellys] engaged in fraudulent concealment. Therefore, the claim of tolling fails as well.

         ¶18. Both Milam and the Kellys agree that the three-year statute of limitation set forth in section 15-1-49 applies to Milam's claims. Miss. Code Ann. § 15-1-49 ("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."). Section 15-1-49(2) provides a tolling provision for the statute of limitations, known as the discovery rule: "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." The Mississippi Supreme Court further clarified this rule, stating that "causes of action accrue ...


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