author: IRVING, J.,

text:
    Charles Fitzgerald McGAUGHY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00382-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied April 24, 2007.
    John Carl Helmert, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING AND ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Charles McGaughy pleaded guilty to sale of cocaine and was placed in the Regimented Inmate Discipline program (RID) by the Lee County Circuit Court, with probation to follow his release from the RID program. McGaughy successfully completed the RID program, but shortly after his release to probation, the State filed a petition to revoke McGaughy’s probation on the basis of criminal charges and other violations of the terms of his probation. A hearing was held on September 22, 2003, at which time the Lee County Circuit Coui't revoked McGaughy’s probation and imposed his entire twenty-year sentence. Thereafter, a jury found McGaughy innocent of the criminal charges. McGaughy filed a motion for post-conviction relief, which was denied by the Lee County Circuit Court. Aggrieved, McGaughy appeals from the denial of his motion for post-conviction relief, and asserts that the court was in error, because he was entitled to appointed counsel at his probation revocation hearing.

¶ 2. Finding no error, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. We will not reverse a trial court’s factual findings regarding a post-conviction relief petition “unless they are found to be clearly erroneous.” Felder v. State, 876 So.2d 372, 373(¶4) (Miss.2004) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). However, we apply a de novo standard of review to issues of law. Id.

114. We note at the outset that a probationer is not always entitled to counsel at a revocation hearing. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). Instead, the question of whether a probationer is entitled to appointed counsel “must be answered ‘on a case-by-case basis in the exercise of sound....’” Id. (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). In general, a probationer has a right to counsel when his case is “complex or otherwise difficult to develop.” Id. (quoting Gagnon, 411 U.S. at 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656).

¶ 5. McGaughy’s case is not “complex or otherwise difficult to develop.” Although he disputed the validity of the criminal charges against him, McGaughy readily admitted to the court that he had violated several conditions of his probation. First, McGaughy admitted that he had not reported to the Mississippi Department of Corrections, as he was required to do, in October 2002, November 2002, December 2002, January 2003, and February 2003. McGaughy further admitted that a warrant for his arrest was then issued in March, and he was finally arrested in August 2003. McGaughy confirmed that he had not reported for any of the months between the issuance of the arrest warrant and his eventual arrest in August 2003. McGaughy further admitted that he had not paid his required supervision fees. Finally, McGaughy admitted that he had not paid any of his court costs, court fines, or restitution. McGaughy admitted to all of these deficiencies without attempting to explain why he had not reported or paid any fines and fees. All these failures constitute violations of the terms of McGau-ghy’s probation.

¶ 6. Mississippi law is clear that a probationer may have his probation revoked for any deficiency: “At any time during the period of probation the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation. ...” Miss.Code Ann. § 47-7-37 (Supp.2006) (emphasis added). The statute goes on to explain that, after the probationer is arrested, “the court ... shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.” Id. Therefore, it is clear that the court below was entitled to revoke McGaughy’s probation solely on the basis of McGau-ghy’s admissions, and that the court was further entitled, at that time, to impose any or all of his sentence that the court deemed appropriate.

¶ 7. McGaughy claims that he “had the right to be informed he could request appointed counsel, and that right was not afforded him.” While the record reflects that McGaughy was not told that he could request appointed counsel, we direct our attention to Livingston v. State, 800 So.2d 532 (Miss.Ct.App.2001). In Livingston, a blind petitioner was not informed of his right to counsel at his probation revocation hearing. Id. at 534(¶ 8). Despite this, we affirmed Livingston’s probation revocation, noting: “This Court finds that the offenses charged against Livingston lacked the requisite complexity necessary to trigger the Gagnon requirement for counsel because the charges ... were neither complex nor difficult to understand.... ” Id. at 535(¶ 11). Therefore, a probation revocation will be affirmed, even when the petitioner was not informed of his potential access to appointed counsel, as long as the petitioner’s case is not complex or difficult to understand. As previously noted, McGaughy’s case is not complex. Therefore, he would not have been entitled to appointed counsel even if he had been informed that he could request counsel.

¶ 8. Notwithstanding the lack of complexity of the probation violation charges, McGaughy claims that an attorney could have provided “mitigation on those minor allegations to which he did admit.” It is interesting that McGaughy makes this assertion when he has presented no evidence, nor offered any argument, as to why he was unable to report to the Mississippi Department of Corrections for nearly a year, nor why he was unable to pay any of his fees or fines. To this date, he has not offered even a scintilla of proof as to what this mitigation evidence would have been.

¶ 9. McGaughy also claims that an attorney would have been able to show the court that “the only true violations [were] financial.” We find this statement incongruous with McGaughy’s admission, under oath, that he was finally arrested in August 2003, after having not reported to his probation officer since October 2002. McGaughy’s failure to report for a period of nearly a year strikes this Court as a violation that is more than simply “financial.”

¶ 10. McGaughy further contends that a petitioner’s probation cannot be revoked merely on the grounds of “a finding that a probationer has been arrested.” As support, McGaughy cites Brown v. State, 864 So.2d 1058 (Miss.Ct.App.2004). We note that the facts were substantially different in Brown, as the only ground for revoking probation in that case was the petitioner’s arrest: “The trial judge ruled that ‘It is undisputed that Brown was arrested while he was on probation.... ’ This statement serves as the sole foundation for the revocation of Brown’s probation.” Id. at 1060(¶ 9) (emphasis added). By contrast, McGaughy’s own admissions in court provided three additional substantial grounds for the court’s revocation of his probation.

¶ 11. McGaughy also claims that he made a timely and colorable claim, and that Gagnon therefore required that he be appointed counsel. On the facts of this case, it is unclear to this Court how McGaughy could have made a timely and colorable claim for counsel. Gagnon states:

counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.

Gagnon, 411 U.S. at 790, 93 S.Ct. 1756.

After preliminary matters had been addressed, the lower court questioned McGaughy at his hearing, at which time he admitted that he had failed to report for nearly a year and had also failed to pay fees and fines owed. McGaughy did not request an attorney at the hearing. However, McGaughy did claim, in an affidavit, that his probation officer had told him that he would not be entitled to appointed counsel at his revocation hearing. Inasmuch as McGaughy’s case was not complex, his probation officer was accurate in informing him that he would not be entitled to appointed counsel.

¶ 12. As already discussed, at no time did McGaughy present any evidence that there were any mitigating factors in his case. Therefore, he did not present a timely and colorable claim regarding the complexity of his case. Nothing McGau-ghy presented at the hearing indicated that there were insufficient grounds for the revocation of his probation. Although he disputed the State’s claim that he had committed armed robbery, he clearly admitted to multiple other violations of his probation. Therefore, McGaughy did not present a colorable claim for appointment of counsel.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: SOUTHWICK, J.,

license: Public Domain

text:
    Billy ESTES and Phillys Estes, Appellants, v. Daniel BRADLEY, Jerome Schmidt and Bonita Schmidt, Appellees. Jerome Schmidt and Bonita Schmidt, Appellants, v. Daniel Bradley, Appellee. Joe Schicke and Jean Schicke, Appellants, v. Jerome Schmidt and Bonita Schmidt, Appellees.
    Nos. 2004-CA-02124-COA, 2005-CA-01264-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied April 24, 2007.

      Phil R. Hinton, Corinth, attorney for appellants in No. 2004-CA-02124-COA.
    John A. Ferrell, Booneville, -Donald Ray Downs, Corinth, William Wayne Smith, Booneville, attorneys for appellees in No. 2004-CA-02124-COA.
    Tommy Dexter Cadle, Kenneth Eugene Floyd, attorneys for appellants in No. 2005-CA-01264-COA.
    William Wayne Smith, Booneville, attorney for appellees in No. 2005-CA-01264-COA.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The suit involves claims arising from defects in the construction of a home. The current owner (the third since construction) sued both of the previous owners as well as the contractor. Cross-claims were then filed. Claims against the original owners were dismissed, and summary judgments were granted the contractor. Other claims remain pending below.

¶ 2. The trial court ruled that the statute of repose applicable to claims regarding construction defects had run and barred claims against the builder and against the original owners. Further, the court found no personal jurisdiction existed for the current and second owners’ claims against the original owners, who now reside out-of-state. We disagree with the analysis on the statute of repose and on in personam jurisdiction. We therefore reverse those judgments and remand. However, the original owners’ appeal of summary judgment denying their claims against the builder has not been perfected. We dismiss that appeal.

FACTS

¶ 3. Jerome and Bonita Schmidt moved to Corinth, Mississippi in early 1994. The Schmidts purchased a lot in Corinth and contracted with Daniel Bradley to construct a house on the lot. The Schmidts moved into the completed home in the latter part of October 1994. In 1996, the Schmidts discovered that a brick above a window on the north side of the house had become loose. They asked Bradley to repair the problem. In February or December 1996, Bradley went to the Schmidts’ home, dug up the foundation, poured concrete and placed concrete piers below the house. Jerome Schmidt claimed that he did not know the specifics of Bradley’s work on the home, though he knew the work was related to the loose brick and was for “fortifying” the foundation. Later, Schmidt discovered a crack about one-quarter of an inch in width in the floor of the house’s game room. The Schmidts again called Bradley, and Bradley made repairs.

¶ 4. In 1997, the home was sold to Caterpillar, Inc., Jerome Schmidt’s employer, and the family moved to Illinois. The Schmidts executed what in essence was a blank warranty deed and special power of attorney naming an agent to execute documents in connection with the eventual sale of the home. This document was dated on October 17, 1997. In 1998, Joe and Jean Schicke purchased the home. Their names were inserted into the warranty deed earlier signed by the Schmidts. The Schickes received a “homeowner’s disclosure statement” — executed by the Schmidts on October 9, 1997 — in which the Schmidts denied knowledge of any defects in the foundation, slabs, or floors of the house. Caterpillar is not a party in this litigation.

¶ 5. In 2001, Billy Estes contracted to purchase the home from the Schickes. Billy and Phillys Estes are the plaintiffs. Attached to the contract was a “seller’s disclosure statement” in which the Schickes asserted that they were unaware of any prior repairs made to the foundation of the home. They also stated that the house’s foundation was not in need of repair. The Esteses executed warranty deeds on June 29, 2001. Later, with the aid of engineers, the Esteses discovered a number of defects in the foundation which they allege were known to the Schickes but not disclosed.

¶ 6. The Esteses filed suit on June 27, 2002 naming as defendants their sellers, the Schickes; the original owners, the Schmidts; and the builder, Bradley. The Esteses claimed that the Schickes made fraudulent representations that the house was in good condition, when they knew that there were “material and substantial defects and deficiencies in the foundation.” Also claimed was that the Schmidts knew of defects in the house’s foundation when they placed the house on the market, and their disclosure statement misrepresented to prospective buyers the condition of the house. The Esteses also alleged that Bradley made repairs in such a way as to hide the flaws in the foundation.

¶ 7. The Schickes (second owners) cross-claimed against their sellers, the Schmidts, for indemnification. The Schmidts made a cross-claim against the builder for indemnification.

¶ 8. The court granted summary judgment or dismissed certain claims, as follows:

(1) On September 17, 2004, summary judgment was granted against the claims by the present owners, the Estes-es, against the builder Bradley. No certification of this judgment as final for purposes of appeal was then made, but that certification was entered on September 11, 2006.
(2) On September 17, 2004, an order of dismissal was entered against the claims brought by the second and third owners, the Schickes and the Esteses, against the original owners, the Schmidts. A certification that this judgment should be treated as final was entered as part of the original order.
(3) On December 2, 2004, summary judgment was granted the builder Bradley against the claim brought by the Schmidts, who had contracted with Bradley for the construction of the home. There is a still-pending motion at the trial court for findings on this summary judgment, and there is no Rute 54(b) certification. This judgment is not properly before us.

¶ 9. The Esteses and the Schickes are properly before us on their challenges to the dismissal of their claims against the original owner, the Schmidts. The Estes-es also have validly presented their appeal that entering summary judgment on their claims against the builder Bradley was error.

DISCUSSION

I. Dismissal of Estes claim against Schmidt

¶ 10. The Esteses’ assert error in the dismissal of the claims against the Schmidts. We will discuss the personal jurisdiction point first and later address the statute of repose.

¶ 11. The Schmidts are now residents of Illinois. They properly raised the absence of personal jurisdiction in their first responsive pleading. M.R.C.P. 12(h)(1). In determining whether one of our state courts may exercise personal jurisdiction over a nonresident defendant, we first examine whether the defendant is amenable to suit by virtue of the Mississippi “long-arm statute.” Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 976 (Miss.2004). If the defendant is included within the reach of the statute, we exámine whether the grant of personal jurisdiction is consistent with the due process clauses of both the state and federal constitutions. Id.

A.l. Long-arm statute

¶ 12. In the complaint, the Esteses alleged that when “Mr. and Mrs. Schmidt, placed the real estate in question on the market, they executed and delivered to prospective buyers, including the Defendants, Mr. and Mrs. Schicke, a Seller’s Disclosure Statement denying knowledge of the defects to the property which were either made by them or with their knowledge.” The Schmidts contend that this language does not state a claim by the Esteses against them since it only alleges that the Schmidts made a misrepresentation to their buyers, the Schickes, and not that they made a misrepresentation to the Estes plaintiffs, who were the next buyers.

¶ 13. Measuring whether these assertions are enough under the Mississippi long-arm statute starts with examining the relevant language of the statute:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code Ann. § 13-3-57 (Rev.2002).

¶ 14. Under this statute, a tort is committed in Mississippi if the acts that cause the injury occur in this state, or if the injury itself occurs here. Mobile Area Water & Sewer System, 897 So.2d at 977. The current owners, the Esteses, contend in their first amended complaint that the Schmidts committed the tort of fraudulent or negligent misrepresentation. There is no dispute that all actions that would support the commission of such a tort would have occurred in Mississippi, and the injury arose here too. The objection raised by the Illinois-residing Schmidts, who moved out of state in 1997 even before selling the house, is that the Estes complaint does not allege they misrepresented anything to anyone except to the Schickes. A claim of a tort by the Schmidts against the Esteses is more explicit in an offered second amended complaint, though no ruling on the 2004 motion for leave to file that amendment was ever made because of the judgment dismissing the claim. The second amended complaint alleged that the failure of the Schmidts to make accurate disclosure, and their complicity with the builder Bradley in making hidden repairs that did not cure the defects, meant that “the Schickes and therefore the [Esteses] did not have information which the Schmidts, the Schickes and the realtor had a duty to disclose” when the Esteses bought the property.

¶ 15. The second amended complaint would have fleshed out the claim that misrepresentations by the Schmidts prevented their buyers from being able to reveal the foundation defects when they later sold to the plaintiffs. This in essence is a claim of a continuing or renewed tort arising from the effects of an earlier failure to disclose. There are legal authorities relevant to whether faulty information provided by a party in one transaction can be the basis of liability if relied upon in a later transaction by someone else. E.g., Strickland v. Rossini 589 So.2d 1268 (Miss.1991); Hosford v. McKissack, 589 So.2d 108 (Miss.1991); Restatement (2d) of ToRts 552 (1977). These authorities appear to conclude that a misrepresentation may be the basis for a claim when used in a transaction in which the creator of the information (1) intends it to be used, or (2) knows or should know that the recipient intends it to be used, or (3) it is used in a substantially similar transaction to those described in (1) and (2). Restatement (2d) of ToRts § 552, comment j.

¶ 16. We do not decide whether the Esteses’ complaint describes a tort by the Schmidts against them. That is because their motion to dismiss was under Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. They did not allege a failure to state a claim under Rule 12(b)(6). Regardless of whether the complaint validly asserted that the Schmidts committed a tort against the plaintiffs, it did assert that the Schmidts committed a tort in Mississippi. Under earlier versions of the long-arm statute, its applicability was limited to “actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto.” 1980 Miss. Laws ch. 437, § 1, language deleted in 1991 Miss. Laws ch. 573, § 98, codified Miss. Code Ann. § 13-3-57 (Rev.2002). The removal of the language regarding a nexus between the tort that confers personal jurisdiction and the claim made in the suit makes a nexus unnecessary. Due process still must be satisfied if jurisdiction in this situation is allowed.

¶ 17. Having asserted that the Schmidts committed a Mississippi tort, regardless of whether it was a tort against the Esteses, the complaint sustains personal jurisdiction under the long-arm statute.

A.2. Due process

¶ 18. Since the long-arm statute would allow personal jurisdiction over the claim, we now turn to whether the out-of-state defendant’s due process rights would be infringed.

The United States Supreme Court has held: “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” A defendant has “minimum contacts” with a state if “the defendant has ‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.”

Horne, 897 So.2d at 979 (internal citations omitted).

¶ 19. The Schmidts do not seriously contest that, at the time the alleged misrepresentation was made, they had substantial contacts with Mississippi. The Schmidts lived in Mississippi for several years, owned the house in question, and executed the disclosure statement which is at the heart of the present litigation. In essence, they allege that allowing a claim that they tortiously wronged the Schickes to be the source of personal jurisdiction in a suit against them by the Esteses is contrary to “traditional notions of fair play and substantial justice.” We find, though, no unfairness in requiring that the Schmidts respond to the claims of the present homeowner since the Schmidts will need to respond to the second owners’ claims involving the same property and the same alleged misconduct.

¶ 20. Personal jurisdiction over the Schmidts exists. We reverse that judgment.

B. Statute of repose

¶ 21. The trial court also based its dismissal of the Esteses’ claim against the Schmidts because it was time-barred under the following statute:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

Miss.Code Ann. § 15-1-41 (Rev.2003). The Schmidt’s argument is that since they supplied their builder Bradley with house plans from a magazine, that they were engaged in “design, planning, supervision or observation of construction, or construction of an improvement to real property” in the present case. To the contrary, the statute protects “parties such as architects, contractors, and engineers who are engaged in the construction business.” McIntyre v. Farrel Corp., 680 So.2d 858, 861 (Miss.1996). The Esteses claim that the Schmidts misrepresented the condition of the home, not that they defectively designed it. The misrepresentation claim is not in repose.

¶ 22. Alternatively, the Schmidts argue that this claim should be time-barred pursuant to the general three-year statute of limitations. Miss.Code Ann. § 15-1-49 (Rev.2003). The trial judge never ruled on the basis of this statute, as he instead applied the statute of repose for construction claims. We find potential fact questions of the time when the plaintiff reasonably should be held to have knowledge of the alleged misrepresentation. Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990). Neither party’s brief gives meaningful attention to the issues of the general limitations statute. This statute is appropriately addressed in the first instance below on remand.

C. Conclusion

¶ 23. We find that the trial court erred in dismissing the Esteses’ claims against the Schmidts on the grounds raised by this defendant. We reverse and remand this judgment.

II. Summary Judgment for Bradley against Estes

¶24. In addition to the grant of judgment to the Schmidts, the trial court also granted summary judgment to the builder Bradley against the claims of the second and of the current owners, the Schickes and, the Esteses, respectively. The court applied the statute of repose. Miss.Code Ann. § 15-1-41 (Rev.2003). Bradley as the builder is a proper party at least to raise this statute. In this section of the opinion, we will discuss only the dismissal of the Schicke claims.

¶ 25. There is no doubt that more than six years passed after actual occupancy of this residence before suit was filed. The statute of repose applies even if the claimant had no reason to know of the defect in the structure before the period for suit expired. Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988). The legal dispute concerns whether the running of the statutory period should nonetheless be stopped because of alleged misrepresentations and concealment. In one case, the issue that fraudulent concealment would toll the running of this statute of repose was not resolved because no authority was cited. Ferrell v. River City Roofing, Inc., 912 So.2d 448, 456 (Miss.2005). The court nonetheless examined whether there was any evidence of such concealment and found none. Id. at 456-57. Still not having any clear authority, we also move on to whether there is any evidence that Bradley concealed something relevant to the claims against him.

¶ 26. Since the trial court granted summary judgment and did not dismiss based on the pleadings, we re-examine the evidence that was presented in the light most favorable to the non-moving party. Baldwin v. Holliman, 913 So.2d 400, 406 (Miss.Ct.App.2005). Summary judgment is proper 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.” M.R.C.P. 56(c).

¶ 27. There is no evidence that Bradley was involved with the alleged misrepresentations by the Schmidts. Instead, the Esteses argue that Bradley made repairs after construction that attempted to hide a serious foundation problem. Bradley said the work was done in February 1996, while Schmidt’s deposition said it may have been in December 1996. The latter date is less than six years prior to the suit. Bradley discussed the 1996 work on the foundation, which included putting down piers and jacking up a part of the house that had sunk. Bradley said that he noticed the hairline cracks in some walls of the house, and made these repairs without telling anyone. Bradley said that the digging to allow the piers was done with a shovel, and then said that a backhoe may also have been used. Some - dirt was taken from beneath the footing for the foundation, and the pier was then poured. Other fill was also added. There was also, apparently later, an effort to repair a crack in the slab, which involved pulling up the floor covering and laying a concrete patch.

¶28. Bradley’s 1996 work has been characterized as negatively as possible, including that he “snuck in there” to make repairs. There is evidence that Bradley initiated repairs in 1996 without first discussing the work with the then-owners, the Schmidts. • There is a dispute as to whether the work was done in February or December, so it is possible that suit was brought within six years of the work. The new work would independently be subject to the statute of repose if, among other things, the work was “an amelioration in [the improvement’s] condition, amounting to more than mere repairs ... and intended to enhance its value, beauty or utility....” Ferrell, 912 So.2d at 454 (new roof was an “improvement”). There was not proof sufficient to grant summary judgment that no harm arose solely from the 1996 work, that the work was definitely a repair and not a significant “amelioration,” and that the work occurred more than six years before suit.

¶ 29. Of broader significance is the relevance of Bradley’s alleged fraudulent concealment of a defect. There was testimony about somewhat secretive actions in 1996 to correct the very problem that underlies the complaints here, namely, a faulty foundation. The argument posed is that the poorly explained repairs constitute evidence of concealment. What we see generically, though, is work done on something that was not to be left exposed, so a necessary covering over of the work occurred. These facts disclose one of the immediate problems with trying to apply concealment tolling to a statute that affects construction work that often is hidden, to the extent that the next part of the construction will hide a flaw. If a contractor is aware during initial construction that there is a large or small defect in the foundation yet proceeds to build the remainder of the structure on top of it, is the statute of repose unusable because of intentional concealment? To open the door to extending the statute of repose due to any evidence of concealment is to eliminate any repose on a large number of construction projects, at least without a trial court’s making a quite exhaustive factual inquiry as to a defendant’s knowledge and intent.

¶ 30. Certainly the legislature may write a statute that in fact creates only a very limited bar to a construction claim. It might provide that there is no repose relating to any defect recognized by a builder, architect, or other relevant party at the time of construction yet which was allowed to be covered over. Our statute of repose has been interpreted much more broadly.

A statute of limitation is distinguishable from a statute of repose in the sense that the latter “cuts off the right of action after a specified period of time measured from the delivery of a product or the completion of work. [Statutes of repose] do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.” Universal Engineering Corp. v. Perez, 451 So.2d 463, 465 (Fla.1984).

Evans v. Boyle Flying Serv., 680 So.2d 821, 827 (Miss.1996).

¶ 31. The Supreme Court once made some general comments in a statute of repose precedent about concealment but was only describing the plaintiffs arguments without applying them to this statute. The court stated that to prove “fraudulent concealment in this state, there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.” Reich, 526 So.2d at 552. The court cited statutory authority:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. § 15-1-67 (Rev.2003). This statute tolls the period in which to sue if there is concealment of a “cause of action.” Inconsistently, a statute of repose will bar a claim for defects even if they are unknown during the time period that the statute is running. Smith v. Fluor Corp., 514 So.2d 1227, 1231-32 (Miss.1987). The statute is like a warranty, which expires even if there is a yet-undiscovered problem. Reich, 526 So.2d at 552. Section 15-1-67 says that the cause of action accrues on the date that the effect of the concealment ends. The statute of repose operates independently of causes of action and by its nature bars hidden claims. Accruals of causes of action are irrelevant to its operation. Thus, the concealment statute will not affect the statute of repose.

¶ 32. As to any defects arising from the initial construction, the statute of repose bars claims against Bradley. We find the evidence to be unclear, though, as to whether some defects may have arisen due to the 1996 work, and that the six-year statute of repose might not bar such claims. We therefore reverse the summary judgments granted Bradley to the extent that the Schickes or Esteses present evidence that some independent injury arose strictly due to the work done within six years of suit being filed, and remand for further proceedings.

III. Summary Judgment for the Schmidts against the Schickes

¶ 33. In the same September 17, 2004 order that granted the Schmidts judgment against the current owners of the house, the Esteses, the court granted judgment for the Schmidts against the second owners, the Schickes. After the decision, the Schickes filed a motion for the trial judge to make findings to explain his fairly short judgment. The court denied that motion on May 26, 2005. It was only after that denial that the Schickes filed their notice of appeal. We have entered an order consolidating the Schickes later-filed appeal with the earlier appeals by the Esteses and the Schmidts.

A. Refusal to make detailed findings of fact and conclusions of law

¶ 34. The only issue presented to us by the Schickes is that the trial court erred in refusing to enter more detailed findings of fact and conclusions of law. The Schickes filed a timely motion for fact-findings, had their motion denied, and now argue this refusal constitutes reversible error. The rule relied upon by the Schickes states that in “actions tried upon the facts without a jury the court may, and shall upon request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law” in support of its judgment. M.R.C.P. 52(a).

¶ 35. We find no authority to make Rule 52(a) applicable to summary judgments or other matters that have not gone to trial. Fact-finding after a bench trial reveals how the evidence was weighed and thereby allows an appellate court to review whether any defect in the evaluation of the evidence exists. In the de novo review applicable to appeals from summary judgment or dismissals on jurisdictional grounds, there is no discretionary fact-finding. Indeed, if on consideration of a motion for summary judgment it is determined that there are facts to be tried, the motion must be denied. M.R.C.P. 56(c).

¶ 36. Having neither been cited to any contrary authority nor finding any, we conclude that Rule 52 applies only to decisions made after some proceeding in which contested facts need to be evaluated. It does not apply to a summary judgment. The applicability of Rule 52 is the premise for the only argument made by the Schickes on appeal. We find no reversible error in the refusal to enter further findings than those that appeared in the initial order on summary judgment.

¶ 37. The Schicke appeal concerns the judgment in their cross-claim for indemnity against the Schmidts. The trial court disposed of the claims of both the Esteses and the Schickes against the Schmidts in the same order of September 17, 2004. We have reversed the part of the judgment affecting the Esteses, finding the later buyers properly asserted personal jurisdiction because of the alleged tort committed by the Schmidts against the Schickes. Even more clearly, the Schickes may use the claimed misrepresentation made to them as a basis for personal jurisdiction in their suit against the Schmidts. The Schickes initially seek a better understanding of the trial court’s reasoning so that, as the Schicke brief states, a more effective challenge could then be made to the dismissal. The Schickes were not knowingly forfeiting their right to challenge what occurred.

¶ 38. We find it an overly artificial result to affirm the judgment against the Schickes because of a shortcoming in their statement of the appellate issues after we have found that there was personal jurisdiction for other parties’ claims due to the alleged tort against the Schickes. This court has the right when an issue has not been identified in an appellant’s brief, to “notice a plain error not identified or distinctly specified.” M.R.A.P. 28(a)(3). In the unusual posture of the Schicke appéal, we conclude that we should exercise our discretion under this rule. We will analyze the two grounds used by the trial court to dismiss the Schickes’ claims and determine whether to reverse.

B. Personal jurisdiction

¶ 39. The trial court concluded that there was no personal jurisdiction for the claims of either the Esteses or the Schickes against the non-resident Schmidts. As we discussed earlier, a resolution of this personal jurisdiction issue requires consideration of whether the long-arm statute would allow the claim because the defendant committed a tort in the state against a resident, and then whether due process rights are violated by allowing suit here. Horne, 897 So.2d at 976.

¶ 40. We have already discussed these issues when we reviewed personal jurisdiction for the claims of the Esteses against the Schmidts. The long-arm statute will also allow the Schickes’ claim that the Schmidts made misrepresentations in a transaction with them, even though the indemnity claim is contingent on the Schickes’ first being found liable to another party.

¶41. Even though the long-arm statute would allow personal jurisdiction over the claim, the out-of-state defendant’s due process rights must not be infringed. As with the claims by the Esteses, we find no offense to “traditional notions of fair play and substantial justice” by allowing this claim. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

¶ 42. There is personal jurisdiction over the Schickes’ claim against the Schmidts.

C. Application of statute of repose to the Schickes’ claim against the Schmidts

¶ 43. The trial court also dismissed the Schickes’ claim against the Schmidts because it was barred under the statute of repose. For the same reason that we rejected this ground for dismissal of the claim made by the Esteses against the Schmidts, we conclude that the Schickes’ claims against the Schmidts should not have been dismissed. The statute of repose sets a definite time period starting with completion of a real property improvement in which to complain of defects. Those protected by that statute are those who have been responsible for the “design, planning, supervision or observation of construction, or construction” of the improvement. Miss.Code Ann. § 15-1-41. We also do not analyze the general three-year statute of limitations since there was no appreciable factual presentation and no ruling on that statute below. Miss.Code Ann. § 15-1-49 (Rev.2003).

D. Conclusion

¶ 44. We find plain error in the trial court’s reliance on an absence of personal jurisdiction and the statute of repose to dismiss the Schickes’ claims against the Schmidts. We reverse and remand.

IV. Summary Judgment for Bradley against the Schmidts

¶ 45. The Schmidts also have filed an appeal to contest the dismissal of their claims based on the statute of repose against the builder Bradley. Summary judgment was granted Bradley on the Schmidts’ claims on December 2, 2004. On December 13, 2004, the Schmidts moved for findings of fact on this order. On the same day, the Schmidts also filed a notice of appeal. After we had evaluated some of the procedural issues raised by the appeals, we entered an order on June 30, 2006, pointing out certain defects and requesting supplementation of the appellate record with any orders that resolved certain pending motions. In response, the trial court entered a helpful order which we have already described. That order referred to the judgment dated September 17, 2004, filed on September 23, involving the Estes and Schicke claims against Daniel Bradley. No supplemental order was entered and presented to us involving the later Schmidt judgment of December 2, 2004, against which a motion for findings is still pending, and for which no Rule 54(b) certification has been made. Of some relevance, perhaps, the trial court on September 11, 2006, when it referred to the judgments filed on September 23, 2004, and dated September 17, said that those judgments were “final and appealable ... as to the Defendant Daniel Bradley, and as to all claims against him.” It appears to us that the parties and trial court were not considering that there was another judgment that also should be mentioned, and the pending motions regarding it should be resolved.

¶46. Because the trial court’s December 2004 order did not adjudicate all of the claims of all the parties, and did not contain an “expressed determination that there is no just reason for delay,” it was purely interlocutory, subject to revision, and is not an appealable judgment. M.R.C.P. 54(b); see Salts v. Gulf Nat. Life Ins. Co., 849 So.2d 848, 850-51 (Miss.2002).

¶ 47. The judgment that resolved the Schmidts’ claims against Bradley is not before the court. Since the judgment favoring Bradley over the claims made by the Schmidts is not final, it remains subject to revision at any time before final judgment. M.R.C.P. 54(b). The trial court can consider the proper remedies in light of the remand of the remainder of the suit.

¶ 48. THE JUDGMENTS OF THE CIRCUIT COURT OF ALCORN COUNTY OF SEPTEMBER 17, 2004, DISMISSING THE CLAIMS OF BILLY AND PHILLYS ESTES AGAINST DANIEL BRADLEY, AND DISMISSING THE CLAIMS OF BILLY AND PHIL-LYS ESTES AGAINST JEROME AND BONITA SCHMIDT, ARE REVERSED AND THE CAUSES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THOSE APPEALS ARE ASSESSED TO THE ESTESES. THE APPEAL OF THE JUDGMENT OF DECEMBER 2, 2004, DISMISSING THE CLAIMS OF JEROME AND BONITA SCHMIDT AGAINST DANIEL BRADLEY IS DISMISSED, AND ALL COSTS OF THAT APPEAL ARE ASSESSED TO THE SCHMIDTS. THE JUDGMENT OF THE CIRCUIT COURT OF AL-CORN COUNTY OF MAY 25, 2005, DISMISSING THE CLAIMS OF JOE AND JEAN SCHICKE AGAINST JEROME AND BONITA SCHMIDT, IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THAT APPEAL ARE ASSESSED TO THE SCHMIDTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: BARNES, J.,

text:
    Jeffery CHAPMAN, Appellant v. CITY OF QUITMAN, Mississippi, Appellee.
    No. 2005-CA-02042-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      John Hubert Anderson, Hattiesburg, attorney for appellant.
    Michael Jeffrey Wolf, Jackson, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. This suit brought under the Mississippi Tort Claims Act (“MTCA”) arose from injuries that Jeffery Chapman sustained when a fifteen year old juvenile assaulted Chapman in a City of Quitman patrol car that was left unlocked with the engine running. Chapman appeals to this Court from the Clarke County Circuit Court’s grant of summary judgment in favor of the City of Quitman. Finding no reversible error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On or about June 7, 2003, Jeffery Chapman attended a party at the home of one of Chapman’s neighborhood friends, James Vale. At some point that night, Vale called the police to his residence. The reason that Vale summoned the police is not clear. Chapman speculated during his deposition that Vale may have misinterpreted a conversation that Chapman and his girlfriend, Samantha, were having in Vale’s yard as being some type of domestic dispute. In any event, City of Quitman Officer Erie O’Neil responded to the call. A large crowd of teenagers, described by Chapman as an “angry mob,” had gathered by the time O’Neil arrived at the scene.

¶ 3. According to Chapman, R.W. and C.W., teenage children of Chapman’s girlfriend, Samantha, were part of this “mob” of approximately fifteen teenagers. When asked during his deposition what he thought had incited the crowd, Chapman speculated that “[t]hey were doing it because they thought I had jumped on Samantha.” Regardless of their motive, Chapman testified that the children were chasing him down the street throwing bricks, sticks, “and stuff’ at him and that some members of the crowd were wielding knives. To keep members of the angry crowd at bay, Chapman stated that he was swinging a wooden stick that he had retrieved from his vehicle. All of this action took place as Chapman was fleeing the crowd on the street between his and Vale’s residences, which were approximately four blocks apart.

¶4. The nature and extent of Officer O’Neil’s efforts to control the mob and protect Chapman after O’Neil’s arrival is unclear. However, Chapman did admit that he saw Officer O’Neil talking to the crowd. Furthermore, Chapman stated in his response to the city’s motion for summary judgment that Officer O’Neil was “attempting to deal with a crowd without calling for backup.” Apparently, while he attempted to deal with the crowd, Officer O’Neil left the door to his police car unlocked and the engine running. It was during this sequence of events — while Officer O’Neil was talking to the crowd — that C.W. sneaked past O’Neil, jumped into the officer’s patrol car, and drove down the street toward Chapman, ultimately striking Chapman with the police cruiser. Chapman stated that he saw the police car approaching, but thought that “it was one of the police coming to my aid, and it wasn’t. That’s how he got up on me so easy.” As a result of the impact, Chapman testified that he suffered serious injuries to his legs, injuries which have prevented Chapman from working since the incident.

¶ 5. Chapman filed a complaint on August 31, 2004 and amended his complaint on December 29, 2004, naming the City of Quitman as a defendant to the action. In the allegation relevant to this appeal, Chapman alleged that the “City of Quit-man and/or Sheriff of Clarke County, Mississippi, acting individually or by and through deputyfies) negligently allowed one of the vehicles to be confiscated by a bystander.” The city filed its motion for summary judgment on March 24, 2005, asserting that the city was immune from liability pursuant to section 11^46-9(l)(c), (d), and (u) of the Mississippi Code. The trial court rendered a memorandum opinion finding the city immune from liability for Chapman’s injuries based on all three immunity provisions. Accordingly, the trial court granted summary judgment in favor of the defendant city. Chapman timely perfected this appeal, arguing that the immunity provisions cited by the trial court are not applicable to the actions of Officer O’Neil on the night in question. Thus, Chapman asserts that the trial court erred by granting summary judgment to the city. We disagree.

¶ 6. While we cannot affirm the trial court’s determination that the city is immune pursuant to section 11 — 46—9(l)(d), as the trial court failed to utilize both prongs of the appropriate two-prong test adopted in Jones v. Mississippi Department of Transportation, 744 So.2d 256 (Miss.1999), we find that the immunities found at section 11-416 — 9(l)(c) and (u) are applicable. Therefore summary judgment was appropriate, and we affirm based on these two immunities.

STANDARD OF REVIEW

¶ 7. This appeal involves the construction and application of exemptions from liability that the Legislature has afforded governmental entities and their employees in certain situations. Codified at Mississippi Code Annotated section 11-46-9 (Rev.2002), these exemptions, when applicable, constitute “an entitlement not to stand trial rather than a mere defense to liability and, therefore, should be resolved at the earliest possible stage of litigation.” Mitchell v. City of Greenville, 846 So.2d 1028, 1029(¶ 8) (Miss.2003) (citation omitted). Accordingly, immunity afforded by the Mississippi Tort Claims Act is a question of law properly addressed by summary judgment under Mississippi Rules of Civil Procedure 56. Id.

¶ 8. We review the grant or denial of summary judgment and other questions of law de novo. Busby v. Mazzeo, 929 So.2d 369, 372(¶ 8) (Miss.Ct.App.2006). All evidence is viewed in a light most favorable to the non-moving party. Id. Viewed in this light, summary judgment is proper if the moving party has demonstrated that there are no material issues of genuine fact and that he is entitled to judgment as a matter of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

DISCUSSION

¶ 9. The sole issue presented on appeal is whether the trial court erred by granting summary judgment in favor of the City of Quitman. The trial court held that the city was immune from liability based on the following exemptions found in the Mississippi Tort Claims Act:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(u) Arising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances....

Miss.Code Ann. § 11 — 46—9(l)(c), (d), and (u).

1. Whether the police protection exemption applies

¶ 10. Section 11 — 46—9(l)(c), in pertinent part, affords immunity for acts or omissions of employees while performing duties relating to police protection “unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....” Chapman cites Mississippi Department of Public Safety v. Durn, 861 So.2d 990 (Miss.2003) to support his contention that the police protection immunity does not apply.

¶ 11. One of the issues considered by the court in Dum was whether the plaintiff/victim was engaged in criminal activity that contributed to the accident at issue. Although the supreme court ultimately found that the plaintiff in that case was not engaged in criminal activity, it nevertheless acknowledged that “[i]f the victim is engaged in an illegal activity that is a cause of the harm, the government is immune from liability.” Id. at 997(¶ 20) (citing Williams v. City of Jackson, 844 So.2d 1161, 1164 (Miss.2003)). Based on this language from Dum, Chapman argues that since he was not engaged in criminal activity on the night in question, the police protection exemption does not apply. While a victim’s criminal contribution to his own injury certainly qualifies a governmental entity for immunity under this provision, Chapman apparently overlooks the fact that, in the absence of criminal activity on the part of the victim, the police protection exemption still applies unless the act or omission complained of evinces a “reckless disregard of the safety and well-being” of others. See id. at 994(¶ 10). In this regard, a showing that Chapman was not engaged in criminal activity does not, by itself, thwart the city’s immunity under this MTCA provision; rather, Chapman must also demonstrate that Officer O’Neil’s failure to remove the keys from and/or lock the doors of his police cruiser evinced a reckless disregard for the safety of others.

¶ 12. The City of Quitman argues that Officer O’Neil’s actions on the night in question did not amount to negligence, much less to reckless disregard for the safety of others. According to our supreme court, reckless disregard is a higher standard than gross negligence. Id. This standard “embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” City of Jackson v. Lipsey, 834 So.2d 687, 691-92(¶ 16) (Miss.2003). Reckless disregard “usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Maye v. Pearl River County, 758 So.2d 391, 394(¶ 16) (Miss.1999). Reckless disregard has consistently been found where the conduct at issue demonstrated that the actor appreciated the unreasonable risk at stake and deliberately disregarded “that risk and the high probability of harm involved.” See Maldonado v. Kelly, 768 So.2d 906, 910-11(¶ 11) (Miss.2000). “The plaintiff has the burden of proving ‘reckless disregard’ by a preponderance of the evidence.” Titus v. Williams, 844 So.2d 459, 468(¶ 37) (Miss.2003) (citing Simpson v. City of Pickens, 761 So.2d 855, 859 (Miss.2000)).

¶ 13. We find no evidence in the record to support Chapman’s assertion that the police protection exemption is inapplicable in the instant case. The only account contained in the record of what happened on the night in question is found in the deposition testimony of Chapman, which was attached as an exhibit to the city’s motion for summary judgment. Chapman’s testimony paints a truly frightening picture of the events leading up to his injuries. Chapman testified that there was a crowd of angry teenagers who, by their actions, Chapman was convinced were intent on killing or seriously injuring him. Faced with the imminent danger posed by fifteen or more angry individuals wielding knives and throwing sticks, bricks, and other objects, we cannot say that O’Neil’s decision to leave his keys inside his patrol car with the engine running and doors unlocked evinced a conscious indifference to the possibility, or “almost a willingness,” that someone would steal O’Neil’s patrol car and injure Chapman. As the supreme court held in Titus, the plaintiff has the burden of proving “reckless disregard by a preponderance of the evidence.” Titus, 844 So.2d at 468(¶ 87). Chapman does not point out, and our review of the record does not reveal, evidence which creates a genuine issue as to whether Officer O’Neil acted with reckless disregard. Accordingly, the police protection exemption is applicable in this case, and summary judgment, therefore, was appropriately granted to the City of Quitman.

2. Whether the discretionary' function or duty immunity applies

¶ 14. In determining whether governmental conduct is a “discretionary function or duty” within the meaning of section 11 — 46—9(l)(d) of the MTCA, this Court must utilize the public policy function (“PPF”) test as adopted by the Mississippi Supreme Court in Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260(¶11) (Miss.1999) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The two prongs of the PPF test properly acknowledge the purpose of the discretionary function immunity, which is “to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at (¶ 10) (citing Gaubert, 499 U.S. at 323, 111 S.Ct. 1267). The first prong requires a determination of “whether the activity involved ‘an element of choice or judgment.’ ” Id. (quoting Gollehon Farming v. United States, 17 F.Supp.2d 1145, 1154 (D.Mont.1998)). If answered in the affirmative, the second prong involves a determination of “whether the choice involved social, economic or political policy.” Id.; see also Stewart v. City of Jackson, 804 So.2d 1041, 1047(1111) (Miss.2002) (holding that decisions regarding transporting elderly patient did not involve social, economic, or political policy); Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 326(¶ 9) (Miss.Ct.App.2006) (finding that waterway district’s decisions regarding the operation of swimming facilities were grounded in public policy).

¶ 15. The city argues that since section ll-46-9(l)(d) “is silent on any requirement that a social, economic or political policy be implicated,” courts are not required to apply both prongs of the PPF test. The city cites seemingly inconsistent opinions rendered by both this Court and by the Mississippi Supreme Court to support this contention. In some of these cases, the second prong of the PPF test was utilized, while only the first prong was considered in others. We find the city’s argument unpersuasive for three reasons.

¶ 16. First, we note that some of the cases cited by the city involved acts or omissions that have been so consistently held to be a discretionary function or duty that a thorough analysis utilizing both prongs of the PPF test was not warranted. See, e.g., Barrentine v. Dep’t of Transp., 913 So.2d 391, 393(¶8) (Miss.Ct.App.2005) (citing Webb v. County of Lincoln, 536 So.2d 1356, 1359 (Miss.1988); Nathaniel v. City of Moss Point, 385 So.2d 599, 601 (Miss.1980); Wall v. City of Gulfport, 252 So.2d 891, 893 (Miss.1971)) (stating that “the placement or non-placement of traffic control devices or signs is a discretionary governmental function”). Second, in other cases cited by the city, the dispositive issue was not whether the act or omission complained of was discretionary within the meaning of section 11-46-9(l)(d), but rather whether the ordinary care standard applied even if the act or omission at issue was discretionary. See, e.g., Collins v. Tallahatchie County, 876 So.2d 284, 289(¶ 16) (Miss.2004) (holding as erroneous the principle that one must use ordinary care in performing a discretionary function to retain immunity); accord Barrentine, 913 So.2d. at 394(¶ 10). Third, our supreme court explicitly stated in Jones that it was adopting the PPF test. Until the Mississippi Supreme Court expressly abandons the PPF test, we are not, nor are the trial courts of this State, at liberty to discard either prong of that test. With the foregoing admonition in mind, we will now address the judgment of the trial court with respect to this exemption.

¶ 17. In rendering summary judgment for the city based on section 11-46-9(l)(d), the trial court correctly recited the public policy function test and supporting case law. The court, however, applied only the first prong in concluding that the city was entitled to immunity under this MTCA provision. Consequently, because the trial judge did not apply both prongs of the public policy function test to the facts of this case, we cannot affirm summary judgment on this ground. Were we not affirming summary judgment pursuant to sections 11^46-9(l)(c) and (u), we would be obligated to remand this case for a determination of the city’s immunity based on both prongs of the public policy function test.

3. Whether the mob violence exemption applies

¶ 18. The final provision upon which the city urged and was granted immunity by the trial court is found at section ll-46-9(l)(u), which provides immunity for claims “[a]rising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances....” The trial court found that Officer O’Neil’s acts or omissions which allowed C.W. to sneak past the officer, steal his police cruiser, and run over Chapman with the patrol car were influenced by “[t]he violent actions of the angry crowd which faced Officer O’Neil....” As such, the trial court held that Chapman’s injuries arose out of mob violence and, therefore, the city was immune from Chapman’s claim. Although we could not find in the record evidence which establishes the basis for Officer O’Neil’s decision to leave his engine running, we nevertheless agree that this exemption applies.

¶ 19. Application of the mob violence exemption found in the MTCA appears to be an issue of first impression in the appellate courts of this State, as neither party has provided any Mississippi case law to support their positions nor has our own independent research revealed any such authority. Other jurisdictions have, however, construed and applied similar immunity provisions. In addition, at least one legal scholar has analyzed the applicability of Mississippi Code Annotated section 11-46 — 9(l)(u) based on jurisprudence from other jurisdictions. In his law review article entitled A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees’ Individual Liability, Exemptions to Waiver of Immunity, Non-jury Trial and Limitation of Liability, 68 Miss. L.J. 703 (1999), Jim Frasier states that “[t]he key to determining the application of this exemption is the definition given to such terms as ‘mob violence,’ ‘riots,’ and ‘civil disturbances.’ ” Id. at 827. Also important to application of this provision is the determination of whether a particular claim arose out of or resulted from any of the enumerated conditions. We will address both of these issues in turn.

¶ 20. In Blackledge v. Omega Insurance Co., 740 So.2d 295, 297(¶ 4) (Miss.1999), the Mississippi Supreme Court was faced with interpreting an insurance contract which provided coverage for damage caused by riot or civil commotion. In explaining its formulated definition for the term “riot,” the supreme court held that the term encompassed at least the following four elements:

1) unlawful assembly of three or more people (or lawful assembly that due to its violence and tumult becomes unlawful), 2) acts of violence, and 3) intent to mutually assist against lawful authority. The common law clearly indicates that lawful authority is not limited to official law enforcement, but extends to those whose rights are or may be injured and who seek to protect those rights. In addition, there must be some degree of 4) public teiTor. We include this element to prevent incorrect prosecution under riot, when a more fitting charge is available, and the crime or violence is of a more limited, private nature. Without the element of public terror, any minor public disturbance could legally be a riot.

Id. at 298-99(¶ 9). “Mob” has been defined by courts in other jurisdictions by reference to “riots.” See A. & B. Auto Stores of Jones Street, Inc. v. Newark, 59 N.J. 5, 279 A.2d 693, 699-700 (N.J.1971) (stating that the term “mob” includes, but is not limited to, situations where a “political, social, racial, ethnic, or economic issue which affects the rioters in a common way”). In this regard, where the elements necessary to constitute a riot are met, the collective group of rioters may properly be referred to as a “mob.’’

it 21. Applying these definitions to the circumstances that Chapman and Officer O’Neil faced in the instant case, we find that the actions of the angry crowd of teenagers constituted a riot. Chapman testified numerous times during his deposition that there were at least fifteen people assembled on the night in question, all angry with Chapman and attempting to seriously injure or kill him. Chapman testified that several members of the crowd were chasing him down the street, throwing “sticks and bricks and stuff’ at him. Chapman also stated that some members of the crowd were wielding knives in an attempt to injure him. Additionally, when asked whether he considered the events of that night to constitute a riot, Chapman testified, “Yes.” Chapman further testified that the crowd was disturbing the peace, and that he thought “they were trying to kill me, really.”

¶ 22. From Chapman’s description of the nature and acts of the angry crowd on the night in question, we find all of the necessary elements of a riot outlined in Blackledge to be present in the instant case:(l) there was a lawful assembly of three or more people which became unlawful due to the “violence and tumult” of those involved; (2) the crowd committed “acts of violence” as evidenced by throwing objects at Chapman and chasing him with knives; (3) the angry crowd evinced “intent to mutually assist against lawful authority” as demonstrated not only by the crowd’s disregard for Officer O’Neil’s authority, but also by their disregard for Chapman’s rights; and, (4) there was “some degree of public terror,” as all of these acts of violence took place on a public street and were not “of a more limited, private nature.” See Blackledge, 740 So.2d at 298-99(¶ 9). Accordingly, the events preceding the injuries upon which Chapman based his claim constituted a riot. We must now determine whether the injuries made the basis of Chapman’s claim arose out of or resulted from the riot.

¶ 28. Chapman argues that, even “if there had been a mob, Jeffery Chapman was injured by the inaction of Officer 0’Ne[i]l rather than mob activity.” The city argues that because C.W. was part of the rioting mob when he stole the patrol car and assaulted Chapman, Chapman’s claim arose out of and resulted from the riot. We find the city’s argument to be persuasive. It is not disputed that C.W. was part of the angry crowd that was attempting to injure Chapman, nor is it disputed that C.W.’s theft of the police car and assault upon Chapman was perpetrated as part of the riotous acts leading up to the vehicular assault. Even if Chapman’s assertion that Officer O’Neil was negligent in leaving his patrol car unlocked with the engine running were true, the city is nonetheless immune from such negligence by virtue of the mob violence exemption. Whether Officer O’Neil decided to leave his engine running and doors unlocked based on his assessment of the riotous situation, whether he was simply complying with police policy, or whether he chose not to remove his ignition keys through carelessness and indifference independent of the riotous situation, our decision is not affected. We conclude that the vehicular assault committed upon Chapman by C.W. was part of the riotous acts and mob violence committed on the night in question. Accordingly, the injuries that Chapman suffered and the resulting claim arose out of and resulted from a riot within the meaning of section ll-46-9(l)(u), and the trial court did not err by granting summary judgment based on this provision.

CONCLUSION

¶ 24. We find that the trial court was correct in finding that there were no genuine issues as to whether the exemptions found in Mississippi Code Annotated section ll-46-9(l)(c)and (u) applied to immunize the City of Quitman from Chapman’s claim based on the alleged negligent conduct of Officer O’Neil. We therefore affirm the court’s grant of summary judgment in favor of the city.

¶ 25. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ„ CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . The deposition testimony of Jeffery Chapman is the only discovery material included in the record and, in addition to the pleadings contained therein, is the only evidence that we may properly consider. We note that Chapman included excerpts from the deposition of Officer Eric O’Neil in his “Record Excerpts” and referenced O’Neil's testimony in his brief; however, we cannot rely on this information as it does not appear in the record. If O’Neil’s deposition testimony had been inadvertently or otherwise improperly omitted from the official record, the proper mechanism for correcting or modifying the record is by MRAP 10(e).

      . Although a copy of C.W.’s statement to police was not made part of the record, Chapman was questioned during his deposition regarding C.W.'s statement that C.W. "confronted Jeff[e]ry Chapman as to why he hit my little sister, [R.W.].” Chapman denied hitting R.W. and also denied being aware of C.W.’s statement.

      . Chapman named Clarke County, Mississippi and the Clarke County Sheriff's Department as additional defendants. These defendants, however, were dismissed pursuant to Chapman’s ore tenus motion for dismissal without prejudice.

      . The record is silent as to why Officer O’Neil chose to leave his patrol car running with the doors unlocked. Chapman points to no evidence, however, which explains how Officer O'Neil's decision was negligent much less reckless. Chapman presented no evidence to eliminate possible alternative bases for that decision, such as: leaving the engine running while outside of the vehicle during situations such as the one O’Neil encountered may have been mandated by official policy or O’Neil may have considered the possibility that the angry crowd might turn their aggression toward him and the need to have a quick avenue of escape in making his decision.

      . Precedent of this Court and of the Mississippi Supreme Court has established that where the act or omission complained of falls within any of the exemptions found in section 46-11-9(1), the government is completely immune from any claims arising from that act or omission. See State v. Hinds County Bd. of Supervisors, 635 So.2d 839, 842 (Miss.1994); Pearl River Valley Water Supply Dist. v. Bridges, 878 So.2d 1013, 1020(¶32) (Miss.Ct.App.2004). We note that the applicability of one or more immunity provisions does not necessarily provide immunity for separate, independent acts or omissions that contribute to the damage or injury made the basis of a claim or claims. In this regard, each alleged negligent act or omission must be considered independently to determine whether immunity is appropriate under any MTCA exemption.