author: RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

text:
    MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY v. Dorothy SMITH
    NO. 2017-IA-01406-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ATTORNEYS FOR APPELLANT: SAM S. THOMAS, OWEN P. TERRY, MADISON
    ATTORNEY FOR APPELLEE: JOSEPH B. MOFFETT, FAYETTE
    BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
   RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. Dorothy Smith sued Mississippi Farm Bureau Casualty Insurance Company ("Farm Bureau"), her homeowner's insurance carrier, after Farm Bureau denied her claim based on the earth-movement exclusion in the policy. Farm Bureau filed a motion for summary judgment, which was denied by the trial court. Farm Bureau filed a petition for interlocutory appeal by permission, which this Court granted. The Court finds that the trial court erred in denying Farm Bureau's motion for summary judgment. The earth-movement exclusion is unambiguous and excludes coverage for the property damage suffered by Smith. We reverse and render in favor of Farm Bureau and dismiss Smith's complaint as to Farm Bureau.

FACTS AND PROCEDURAL HISTORY

¶2. Smith filed suit against her home builder, Larry Brown, d/b/a Brown's Construction Company, and Farm Bureau after learning that her home's foundation was defective. Smith filed a claim for the repair of the foundation, but Farm Bureau denied the claim. Smith alleged that Farm Bureau's refusing to pay for repairs under the terms and conditions of the policy amounted to breach of contract. She further alleged that the denial constituted bad faith and tortious breach of contract. Smith demanded damages to repair the foundation, damages for inconvenience, anxiety, emotional distress, extracontractual damages, punitive damages, and attorneys' fees.

¶3. In response, Farm Bureau filed its answer and a motion for summary judgment, urging that Smith's claim was properly denied because the foundation defects were not covered under the policy's earth-movement exclusion. The earth-movement exclusion reads,

A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
....
2. Earth Movement
Earth Movement means:
a. Earthquake, including land shock waves or tremors before, during or after a volcanic eruption;
b. Landslide, mudslide or mudflow;
c. Subsidence or sinkhole; or
d. Any other earth movement including earth sinking, rising or shifting;
caused by or resulting from human or animal forces or any act of nature unless direct loss by fire or explosion ensues and then we will pay only for the ensuing loss.

Farm Bureau argued that the exclusion precludes coverage for any damage resulting from earth movement, regardless of its cause. Farm Bureau cited three cases: Rhoden v. State Farm Fire & Casualty Co. , 32 F.Supp.2d 907, 913 (S.D. Miss. 1998) ; Boteler v. State Farm Casualty Insurance Co. , 876 So.2d 1067 (Miss. Ct. App. 2004) ; and Hankins v. Maryland Casualty Co. , 101 So.3d 645 (Miss. 2012). Farm Bureau argued that in all of these cases, the courts found that an earth-movement exclusion precluded coverage for damage caused by earth movement. Farm Bureau pointed out that Smith's proof confirmed that earth movement had caused her foundation's problems. Because no disputed issue of fact remained, Farm Bureau sought summary judgment.

¶4. Farm Bureau attached seven exhibits to its motion: (1) Smith's amended complaint; (2) Farm Bureau's answer and defenses to Smith's amended complaint; (3) Smith's responses to Farm Bureau's first set of interrogatories and first request for production of documents; (4) a two-paragraph letter/"expert report" authored by Smith's expert witness, Randy Blanton; (5) Blanton's deposition; (6) Smith's deposition; and (7) Smith's home insurance policy from Farm Bureau.

¶5. Smith, in her interrogatory responses, identified "[f]oundation and [s]tructural separation on house[,] especially in [m]aster [b]edroom, [m]aster [b]athroom, [f]ireplace, [p]atio [c]racks and on [m]ason work on outside of house" as the problems for which she sought payment from Farm Bureau. She claimed the "[s]tructure falling in as well as interior" was the cause of such problems. In both responses, Smith referred to the "Blanton Report."

¶6. The "Blanton Report" is a two-paragraph letter authored by Smith's expert, Randy Blanton, which reads,

Dear Mr. Moffett,
After further inspection of the exterior of Dorothy Smith's home I found an area around the rear patio that has some damage, such as brick cracking, doors and windows separating from brick and etc. I did not notice this on my first inspection 8 years ago, but this indicates some foundation problems in my opinion. Just as a rough estimate I would say to correct this issue cost would be between $ 45,000.00 to $ 50,000.00 because it is very unlikely to match existing brick and etc.
This damage could be from faulty design in the foundation or poor compaction on the fill dirt when the house was first built or a busted water line that got the ground wet. Until it is opened up there is really no way to tell.
Thanks,
Randy L. Blanton

¶7. Next, Farm Bureau directed the trial court to certain portions of Blanton's deposition. Blanton had conducted inspections of Smith's home in 2004 and 2012. Blanton opined that the first potential cause of Smith's foundation problems, "faulty design," could cause damage to the foundation if the designer did not have the foundation "reinforced enough for that particular load, like, for the footings and load-bearing walls." He stated that problems with faulty design, however, would become apparent right after the project is finished and that he had not noticed any foundation issues when he inspected the home in 2004.

¶8. Blanton opined that the second potential cause of Smith's foundation problems, poor compaction of the soil, could cause the earth to move away from the foundation if the soil is not properly compacted.

¶9. Blanton opined that the third potential cause of Smith's foundation problems could be water damage. Blanton stated that a burst water line could cause foundation problems by causing the earth beneath the home to "lose [its] compaction and the earth to actually settle away and cause ... a void called a weak spot." However, Blanton testified that he had not been able to determine if a water leak existed at Smith's home. Further, Blanton testified that, even if a water leak did exist, any foundation problem at Smith's home would have resulted from earth movement . Farm Bureau directed the trial court to six other portions of Blanton's deposition testimony in which he had opined that Smith's foundation problems would have to be the result of earth movement .

¶10. Smith filed a countermotion for partial summary judgment in response. Smith argued that the earth-movement exclusion in her policy did not preclude coverage because her insurance policy also contained a clause expressly covering water damage, which Smith argued was the cause of her foundation problems. The coverage clause cited by Smith provides in pertinent part that,

Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a:
....
(ii) Plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance ....

¶11. In support of her claim that her foundation problems were caused by water damage, Smith included her own interrogatory response and the same two-paragraph letter from Blanton offered by Farm Bureau. That interrogatory response reads,

INTERROGATORY NO. 21 :
State the details relative to any and all busted water pipes, plumbing leaks and/or other water leaks at Plaintiff's home including when any such events occurred, where any such events occurred, how long any such events lasted and what was done to correct or stop any such events. Also, identify all persons who made repairs and/or corrected any such events and all damage relative to any leaks, events or repairs or corrections.
ANSWER NO. 21 :
1. Pipes under sink burst, kitchen flooded, spent 2 weeks in Meadville hospital after fall. Husband adjusted pipes, plumber and electrician came out.
2. Ditch that belongs to county not dug deep enough, came out four times.
3. Upstairs hot water heater leaking, wash room ceiling need fixing.
4. Upstairs air conditioner pipe left open, water leaking onto $ 1,300.00 entertainment center in master bedroom.
5. Water from unit leaked, pipes over master bathroom tub open wall to fix shower that was unusable. Not fixed yet, she cannot use shower.
6. Water leak in pipe by garage outside faucet leaks. Dug down deep to repair.
7. Ice maker unusable, leaks water into garage

Smith argued that because her foundation's problems were caused by these water leaks, her foundation was covered under the water-damage coverage clause within her policy.

¶12. Additionally, Smith cited New Hampshire Insurance Co. v. Robertson , 352 So.2d 1307 (Miss. 1977). Smith argued that the Robertson Court examined a similar earth-movement exclusion and found that it was limited to earth movement resulting from natural forces, e.g. , earthquakes, volcanic eruptions, and landslides. Smith argued that the caselaw cited by Farm Bureau involved much broader earth-movement exclusions than the one contained in her policy. Based on the holding in Robertson , her interrogatory response, and Blanton's report, Smith argued that no genuine issue of material fact existed about Farm Bureau's obligation to cover the repairs needed for her home's foundation; thus, Smith urged the trial court to deny Farm Bureau's motion for summary judgment and to grant her countermotion for partial summary judgment.

¶13. Farm Bureau replied that Smith's case was more akin to the facts in Rhoden , Boteler , and Hankins , which all held that the earth-movement exclusions contained in those insurance policies were sufficient to exclude coverage for damages caused by earth movement.

¶14. The trial court granted Farm Bureau's request to supplement its motion for summary judgment with the report of its own expert, Jason Grover, P.E. Grover opined that Smith's foundation problems were caused by long-term differential movement of the foundation supporting the brick veneer and by the supporting soils at the site. Grover stated in his report that the separations in the interior were caused by "thermal and hygrometric movements" of the building materials related to changes in moisture content and temperature. He concluded in a supplemental report that a leak in a plumbing line at Smith's property was not the cause of the separations or the movement of the building and foundation. Farm Bureau argued that the trial court did not have any proof before it that any leaking pipes and/or water caused or contributed to the problems complained of by Smith.

¶15. A hearing was held on Farm Bureau's motion. After hearing arguments from both parties, the trial judge concluded that Robertson was no longer "good law." However, the trial judge denied Farm Bureau's motion for summary judgment. Farm Bureau filed a petition for interlocutory appeal by permission under Mississippi Rule of Appellate Procedure 5. By order entered on May 8, 2018, this Court granted Farm Bureau's petition for interlocutory appeal.

STANDARD OF REVIEW

¶16. "The interpretation of an insurance policy is a question of law, not one of fact .... When a question of law is raised we apply a de novo standard of review." Hankins , 101 So.3d at 654 (quoting Corban v. United Servs. Auto. Ass'n , 20 So.3d 601, 609 (Miss. 2009) ). Likewise, "[a] trial court's grant or denial of summary judgment is reviewed de novo." Miss. Baptist Med. Ctr., Inc. v. Phelps , 254 So.3d 843, 844 (Miss. 2018) (citing Leffler v. Sharp , 891 So.2d 152, 156 (Miss. 2004) ). "Summary judgment is appropriate when '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.' " Phelps , 254 So.3d at 845 (quoting Miss. R. Civ. P. 56(c) ). "All evidence will be viewed in the light most favorable to the nonmoving party." Id. (citing Estate of Northrop v. Hutto , 9 So.3d 381, 384 (Miss. 2009) ). "If no genuine issue of material fact exists to be resolved, 'then the moving party is entitled to judgment as a matter of law.' " Id. (quoting Neely v. N. Miss. Med. Ctr., Inc. , 996 So.2d 726, 728-29 (Miss. 2008) ).

DISCUSSION

I. Whether the trial court erred in denying Farm Bureau's motion for summary judgment, or in the alternative, partial summary judgment.

¶17. Both parties frame the issue on appeal as follows: whether the earth-movement exclusion precludes coverage for the damages to Smith's foundation. Neither party has presented any caselaw interpreting the precise language at issue in today's case. Collectively, the parties offer four cases interpreting other earth-movement exclusions. Farm Bureau cites Rhoden , Boteler , and Hankins , arguing that these cases support its position that Smith's policy clearly excludes coverage for damage resulting from earth movement. Smith cites Robertson and argues that the earth-movement exclusion in her policy does not preclude coverage because it includes a separate, specific coverage clause for water damage.

In Robertson , a homeowner suffered "settling and cracking of ... her patio, walls, floors and related damages," following "an underground leak caused by separation of a hot water line." It was undisputed "that the damage resulted from water pressure exerted upon the foundation or slab of the house and ultimately upon the floors and walls or from earth movement beneath the foundation of the house, or a combination, all of which was caused by the underground leak." The "comprehensive dwelling insurance policy" issued by New Hampshire Insurance Company ("New Hampshire") excluded "settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; ... (b) caused by, resulting from, contributed to or aggravated by earthquake, volcanic eruption, landslide, or other earth movement ...." But the policy provided coverage for damage caused by leaking plumbing.
Following denial of her insurance claim, the homeowner filed suit against New Hampshire, and the lower court held that her loss "was within the coverage of the policy...." On appeal, this Court affirmed. This Court determined that the "earth movement" exclusion was ambiguous and construed it against its drafter, New Hampshire. This Court stated that "the provision excluding loss by any other earth movement appears in the context of a clause dealing with earthquakes, volcanic eruption, and landslides. In this context, it would appear to be limited to 'earth movement' resulting from natural forces (as opposed to earth movement resulting from the water leak)." This Court added that holding otherwise would improperly "negate the specific coverage of water damage resulting from leakage within a plumbing system."

Hankins , 101 So.3d at 655-56 (quoting Robertson , 352 So.2d at 1308-12 ) (internal citations and alterations omitted).

¶18. Smith argues that Robertson is on all fours with the case sub judice , for both cases involve an earth-movement exclusion and a water-damage coverage clause. However, in that case, this Court found that the earth-movement exclusion was ambiguous, concluding that it was limited to movement resulting from natural forces because it appeared in the context of earthquakes, volcanoes, and landslides. In this case, Farm Bureau's policy specifically provides that earth movement means "[a]ny ... earth movement including earth sinking, rising or shifting ... caused by or resulting from human or animal forces or any act of nature ...." Unlike the policy described in Robertson , the Farm Bureau policy here provides that earth movement is not limited to movement resulting from natural forces.

¶19. In Rhoden , homeowners noticed cracking in their driveway and bathroom tile ten years after moving into their home and five years after completing an addition to their home. Rhoden , 32 F.Supp.2d at 908. The homeowners sued their home's contractor for "failure to properly design, construct, prepare, and fill lots, as well as ... failure to properly design and construct the foundations of the houses on the lots, caus[ing] movement of the earth ... [and] caus[ing] instability to the structure of their home." Id. Additionally, the homeowners brought suit against State Farm after it denied their insurance claim based on the earth-movement exclusion within their policy. Id. at 909. The earth-movement exclusion in Rhoden read as follows:

2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
....
Earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion.

Id. at 911. The United States District Court for the Southern District of Mississippi concluded that the earth-movement exclusion was unambiguous and excluded from coverage all earth movement, regardless of its cause. Id. at 913.

Whether caused by the negligence of Plaintiff's contractor in its placement of fill soil in the construction of Plaintiffs' home or by some other condition, Plaintiffs' damages are a result of earth movement underneath the residence. As such, they fall within the earth movement exclusion of the policy and are not covered damages. Because as a matter of law, Plaintiffs' damages are not covered under the policy, Defendant is entitled to summary judgment.

Id. at 912. The Rhoden Court also distinguished the earth-movement exclusion in that case from the one in Robertson based on, inter alia , the exclusion's applying "regardless of the cause of the event ...." Id.

¶20. In Boteler , a home's foundation shifted, causing structural damage. Boteler , 876 So.2d at 1068. "A broken pipe that was leaking water when the damage was discovered may have been the cause of the shifting, or the damage to the pipe may have been the result of shifting that arose from other causes." Id. The homeowner sued State Farm after it denied the homeowner's insurance claim based on the earth-movement exclusion within the policy. That earth-movement exclusion read as follows:

1. We do not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through m. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
....
l. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings.
....
2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
....
b. Earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not.

Id. at 1068-69. State Farm's expert had determined that the damage to the homeowner's foundation was caused by "shrinking and swelling of the clay lying under the home." Id. at 1069. The circuit court granted summary judgment in favor of State Farm, and the Court of Appeals affirmed, finding that the earth-movement exclusion was unambiguous and that it applied, regardless of the cause of the earth movement. Id.

¶21. The Court of Appeals in Boteler also distinguished the earth-movement exclusion in that case from the one in Robertson and found that the exclusions were "strikingly dissimilar." Id. The Court of Appeals found that Robertson was not "a barrier to exclusion of damages from earth movements if a different contract uses different language that adequately creates the exclusion." Id. at 1070. Because State Farm had utilized unambiguous language for the earth-movement exclusion, the Court of Appeals affirmed the circuit judge's determination "that there was no liability for damages regardless of whether nature-caused or human source earth shifting was the reason for the damage." Id.

¶22. Finally, in Hankins , a homeowner reported to her homebuilder "numerous cracks, leaks, and difficulties in closing doors and windows" during the first year of living in the home. Hankins , 101 So.3d at 647. An engineer examined the home and determined that the damage had been caused by "excessive differential movement of the foundation system ... most likely due to a combination of both upward and downward soil movement[.]" Id. A default judgment was entered against the builder, and the homeowner filed a "Suggestion for Writ of Garnishment" against the homebuilder's commercial general liability ("CGL") insurer, Maryland Casualty. Id. Maryland Casualty argued that the CGL policy's earth-movement exclusion barred coverage for the damage to the home. Id.

¶23. The circuit court granted summary judgment in favor of Maryland Casualty, finding that the earth-movement exclusion "exclude[d] the damages suffered by [the homeowner] from coverage under the policy." Id. This Court affirmed, finding that the CGL policy, which was designed to provide liability protection for the contractor/subcontractors for their negligence, was not limited to earth movement caused by natural forces. Id. at 655 ("For a third-party CGL policy, under which an 'occurrence' (i.e., 'an accident') that causes 'bodily injury' or 'property damage' is a prerequisite to coverage, what would be the purpose of an 'earth movement' exclusion limited to nature-caused or natural-force earth movement?") Keeping with the basic principle that "insurance policies are viewed as [ ] contracts, and ... are to be enforced according to their provisions[,]" id. at 653 (quoting Corban , 20 So.3d at 609 ), this Court concluded that the homeowner's property damage fell within the earth-movement exclusion of the policy. Id. at 659 (quoting Rhoden , 32 F.Supp.2d at 913 ). Additionally, this Court concluded that the Maryland Casualty earth-movement exclusion was more akin to the earth-movement exclusions in Rhoden and Boteler than the one in Robertson . Id. at 657. Specifically, the Court found that the earth-movement exclusion had "add[ed] the modifiers 'arising out of' and 'related to,' then denominate[d] multiple other excluded forms of 'earth movement,' including 'shrinking,' 'expansion,' 'shifting,' 'rising,' and 'tilting.' Id. (quoting Boteler , 876 So.2d at 1069 ). Further, this Court distinguished Robertson on the basis that the policy in Robertson provided coverage for damage caused by leaking plumbing, the cause at issue. Id. (citing Robertson , 352 So.2d at 1309 ).

¶24. Today's earth-movement exclusion is most similar to the exclusions in Boteler and Rhoden . In those cases, the exclusion applied to any earth movement, regardless of the movement's cause. Similarly, the earth-movement exclusion in this case states that it applies "regardless of any other cause or event contributing concurrently or in any sequence to the loss," including earth movement "caused by or resulting from human or animal forces or any act of nature ...." Accordingly, the specific language in Farm Bureau's policy is unambiguous and applies to any earth movement regardless of its cause. Robertson is fundamentally distinguishable from today's case, because the policy in Robertson only excluded earth movement caused by natural forces. The policy in Robertson did not exclude coverage for earth movement caused by human forces.

¶25. The separate water-damage coverage clause cited by Smith does not affect this Court's analysis of the earth-movement exclusion. The coverage clause specifically states that it applies "[u]nless the loss is otherwise excluded ...." The language contained in the earth-movement exclusion makes clear that it excludes coverage for damage resulting from earth movement, regardless of the cause of the earth movement, including human forces (e.g ., water leaks from plumbing). Thus, the water-damage coverage clause does not supplant the earth-movement exclusion. Further, Smith has not submitted admissible evidence that her foundation problems were caused by water damage. Although Smith described various plumbing leaks in and around her home in an interrogatory response, she failed to offer proof that these leaks had caused or contributed to her foundation problems. The proof submitted by Smith has demonstrated the opposite: that her foundation was damaged by earth movement.

¶26. Smith's expert initially opined in his letter/report that Smith's foundation problems could have been caused by any of the following: (1) faulty design, (2) poor compaction of the soil, or (3) water damage. However, he testified at his deposition that the first potential cause-faulty design-would have been apparent shortly after construction and that he had not noticed any foundation issues when he had inspected Smith's home eight years before. He thus excluded faulty design as a potential cause of Smith's property damage. About the other two potential causes, Smith's expert opined that, even if the builder had not properly compacted the soil and even if a leaking pipe had caused the foundation to shift, the ultimate contributing factor in either scenario was earth movement. Likewise, Farm Bureau's expert opined that Smith's foundation problems had been caused by the long-term differential movement of the soil, not by a leak in the plumbing line.

¶27. Smith's own proof demonstrates that earth movement caused her property damage; thus, no genuine issue of material fact remains as to Farm Bureau. Miss. R. Civ. P. 56. Because Smith's "damages are a result of earth movement[,]... they fall within the 'earth movement' exclusion of the policy and are not covered damages. Because as a matter of law, [Smith's] damages are not covered under the policy, [Farm Bureau] is entitled to summary judgment." Rhoden , 32 F.Supp.2d at 908.

CONCLUSION

¶28. The trial court erred in denying Farm Bureau's motion for summary judgment, because Smith's proof demonstrated that her property damage was caused by earth movement, which the earth-movement exclusion in her policy unambiguously excludes. We reverse the trial court's judgment denying Farm Bureau's motion for summary judgment, and we render summary judgment in favor of Farm Bureau.

¶29. REVERSED AND RENDERED.

KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Smith also sought specific performance and damages against Brown, who is not a party to this interlocutory appeal.

      Farm Bureau alternatively sought partial summary judgment as to Smith's extracontractual and punitive-damage claims.


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    HEALTH MANAGEMENT ASSOCIATES, INC., Clarksdale HMA Physician Management, LLC, Clarksdale HMA, LLC Individually and d/b/a Northwest Mississippi Medical Center, Mark Caton, Regina Robinson, Matthew Tormey and Teena Rowe v. Roger WEINER, M.D.
    NO. 2017-IA-01435-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ATTORNEYS FOR APPELLANTS: ANDY LOWRY, THOMAS L. KIRKLAND, JR., JACKSON, BILL LUCKETT, JR., CLARKSDALE, JAMIE F. JACKS, CLEVELAND, GERALD H. JACKS
    ATTORNEYS FOR APPELLEE: DANA J. SWAN, CLARKSDALE, H. SCOT SPRAGINS, LAWRENCE J. TUCKER, JR., OXFORD
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Dr. Roger Weiner brought a malicious-prosecution claim against Health Management Associates Inc. and Teena Rowe. Dr. Roger Weiner based his malicious-prosecution claim on the federal district court's dismissal of his criminal prosecution. The court had dismissed the case for lack of jurisdiction. Health Management Associates Inc. and Teena Rowe filed a motion for partial summary judgment on the malicious-prosecution claim, arguing that a jurisdictional dismissal is not a favorable termination for the purposes of a malicious-prosecution claim. The trial court agreed. Later, with a new trial judge on the bench, Dr. Weiner sought reconsideration. The trial court reconsidered and reversed the former judge's order. Health Management Associates Inc. and Teena Rowe appealed. The Court reverses and remands the judgment of the trial court, holding that it erred in denying the partial summary-judgment motion.

STATEMENT OF FACTS

¶2. Dr. Roger Weiner was prosecuted in federal district court for violating the Mann Act. See 18 U.S.C. § 2422(a) (2012). Dr. Weiner sought dismissal of the charges, alleging that the interstate-commerce element was not met. The district court dismissed the charges for lack of federal jurisdiction, stating that "the federal nexus to interstate commerce necessary to create federal jurisdiction simply is not present in the case at bar." The order stated that dismissal was jurisdictional and that "[i]n this case the court is not ruling on whether prostitution was never discussed and would never have been engaged in. If state or local prosecutorial authorities want to pursue a state law prosecution of solicitation of prostitution, that is their prerogative."

¶3. Subsequently, Dr. Weiner brought a civil suit against Health Management Associates Inc. (HMA) and Teena Rowe. The suit alleged a number of claims, including a claim for malicious prosecution. HMA and Rowe filed a motion for partial summary judgment on the malicious-prosecution claim. HMA and Rowe argued that the malicious-prosecution claim should be dismissed because a dismissal for lack of jurisdiction of the underlying criminal prosecution did not amount to a "favorable termination" under the elements of a malicious-prosecution claim.

¶4. The trial judge granted HMA and Rowe's motion for partial summary judgment. The trial judge then denied Dr. Weiner's motion for reconsideration and certified the order granting partial summary judgment as a final order.

¶5. Dr. Weiner filed a petition for interlocutory appeal and a direct appeal on the grant of the partial summary-judgment motion. The Court denied the petition for interlocutory appeal, holding that a Mississippi Rule of Civil Procedure 54(b) certification had been entered. Subsequently, HMA and Rowe filed a motion to dismiss the direct appeal, arguing that the order had been improperly certified as a final order under Rule 54(b). The Court granted the motion and dismissed the appeal.

¶6. Thereafter, the trial judge assigned to the case retired, and a new trial judge was assigned to the case. Dr. Weiner filed a "Motion to Reconsider the Former Trial Court[']s Granting of HMA Defendants' Motion for Partial Summary Judgment." Under Rule 54(b) of the Mississippi Rules of Civil Procedure, the new trial judge granted the motion to reconsider and denied HMA and Rowe's partial summary-judgment motion on the issue of malicious prosecution. She stated that the prior federal case was decided in Dr. Weiner's favor because the order of dismissal "went to the substantive elements of the crime of the Mann Act."

¶7. HMA and Rowe filed an interlocutory appeal. A panel of the court granted permission for the appeal.

STATEMENT OF THE ISSUES

¶8. The parties argue two general issues regarding whether the underlying termination supports a claim for malicious prosecution and whether the grant of the motion to reconsider was proper. The Court considers only one issue, as it is dispositive. The Court restyles the issue as follows:

Whether the underlying termination of the federal criminal action constitutes a favorable termination for the purposes of a malicious-prosecution claim.

ANALYSIS

Whether the underlying termination of the federal criminal action constitutes a favorable termination for the purposes of a malicious -prosecution claim.

A. Standard of Review

¶9. The trial court granted Dr. Weiner's motion to reconsider. The trial court then denied HMA's motion for partial summary judgment on the claim of malicious prosecution.

¶10. The grant or denial of a motion for summary judgment is considered de novo. Bearden v. BellSouth Telecomms., Inc. , 29 So.3d 761, 764 (Miss. 2010). Summary judgment is appropriate if the record shows "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56. "In making such a determination, the evidence must be viewed in the light most favorable to the nonmoving party." Id. ; Bearden , 29 So.3d at 764 (internal quotation omitted). Further, to the extent that questions of law are at issue, the standard of review is de novo. Barlow v. Miss. State Bd. of Chiropractic Exam'rs , 233 So.3d 223, 227 (Miss. 2017).

B. Whether the underlying dismissal for lack of jurisdiction of the federal criminal action constitutes a favorable termination for the purposes of the malicious-prosecution claim.

¶11. Dr. Weiner maintains that the underlying dismissal for lack of jurisdiction of the federal criminal action constitutes a favorable termination for the purposes of the malicious-prosecution claim. HMA and Rowe consider the termination procedural and, therefore, conclude that it does not constitute a favorable termination for the purposes of the malicious-prosecution claim. For the reasons discussed below, the Court agrees with HMA and Rowe.

¶12. In Bearden , in considering an issue of first impression for Mississippi, the Court held that a dismissal of the underlying criminal action for a lack of jurisdiction is not a favorable determination for malicious-prosecution purposes. Bearden , 29 So.3d at 761. Before reaching its holding, the Bearden Court reviewed the competing interests in malicious-prosecution cases.

¶13. First, it considered "[t]he public policy interest in crime prevention [which] insists that private citizens, when aiding law enforcement personnel, ought to be protected against the prejudice that is likely to arise from the termination of the prosecution in favor of the accused." Id. at 765 (quoting Benjamin v. Hooper Elec. Supply Co., Inc. , 568 So.2d 1182, 1187-1188 (Miss. 1990) ). Second, it considered the interest "which protects individuals from being wrongly accused of criminal behavior which results in unjustified and oppressive litigation of criminal charges." Id.

¶14. The Bearden Court also specifically stated that the dismissal must "reflect on the merits of a criminal action or the innocence of the accused," noting that "[t]he record is totally void of any indication of why the justice court concluded that it had no jurisdiction." Bearden , 29 So.3d at 764, 766. Further, it held that "the dismissal of the case for lack of jurisdiction does not reflect on the merits of the criminal case against Bearden." Id. at 766.

¶15. Dr. Weiner maintains that, although the criminal dismissal here was jurisdictional, Bearden is distinguishable. Stating that federal courts are courts of limited jurisdiction, Dr. Weiner concludes that, unlike in state court, if a federal court lacks subject-matter jurisdiction, no federal crime exists. On the other hand, he claims that in state court, if a court lacks jurisdiction, the criminal charge may be brought elsewhere. HMA and Rowe argue that the jurisdictional requirement to federal crimes is merely a jurisdictional hook.

¶16. Dr. Weiner is correct to note the fundamental precept that "federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute ...." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). Thus, federal criminal laws differ from state criminal laws in that "state crimes do not contain interstate commerce elements because a State does not need such a jurisdictional hook." Torres v. Lynch , --- U.S. ----, 136 S.Ct. 1619, 1625, 194 L.Ed.2d 737 (2016). Here, the Mann Act required interstate commerce as a jurisdictional requirement. See 18 U.S.C. § 2422(a). The district court dismissed the criminal action against Dr. Weiner, citing a lack of jurisdiction due to the missing element of interstate commerce.

¶17. Although Bearden addressed dismissal for lack of jurisdiction, it did so for a state crime, not a federal crime. Here, the question for the Court is also one of first impression: whether the dismissal for lack of jurisdiction for a federal crime in federal court is a termination in Dr. Weiner's favor for the purposes of malicious prosecution. The instant issue presents an issue of law, which the Court reviews de novo. See Barlow , 233 So.3d at 227.

¶18. The parties cite Torres , arguing that it supports their arguments. The issue in Torres is notably different than the issue here. The Supreme Court was faced with determining whether a state crime can count as an aggravated felony under the Immigration and Nationality Act when the only difference in the state-law offense and the federal offense is the interstate-commerce element. Torres , 136 S.Ct. at 1622. In other words, the issue was whether the jurisdictional element precluded the state crime from being considered an aggravated felony. The Supreme Court determined that the jurisdictional element was immaterial and that a state offense, which otherwise mirrors the federal offense, constituted an aggravated felony under the Act. Id. Despite the factual differences in Torres , the Court agrees with the parties that Torres provides guidance regarding the effect of a jurisdictional element of a federal crime.

¶19. Dr. Weiner points out that Torres refers to federal jurisdiction as an element of the crime. Dr. Weiner states that the Torres Court noted that both kinds of elements must be proved to a jury beyond a reasonable doubt. See Torres , 136 S.Ct. at 1630. Dr. Weiner then interpreted Torres to conclude, "If neither is proven beyond a reasonable [doubt], the accused is not guilty!"

¶20. The Torres Court did state that both elements must be proved beyond a reasonable doubt, but it went on to provide that the two types of elements are not the same. It said,

Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But still, they are not created equal for every purpose. To the contrary, courts have often recognized-including when comparing federal and state offenses-that Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment.

Torres , 136 S.Ct. at 1630. The Court then stated that the mens rea requirement is not needed for a finding under the jurisdictional element. Id. at 1630-31. Further, it cited United States v. Yermian , 468 U.S. 63, 68, 104 S.Ct. 2936, 2939, 82 L.Ed.2d 53 (1984) for the point that "[j]urisdictional language need not contain the same culpability requirement as other elements of the offense." Torres , 136 S.Ct. at 1631. The Torres Court also held that the jurisdictional element is "properly ignored when determining if a state offense counts as an aggravated felony ...." Id. at 1634. Similarly, for the Mann Act, the mens rea requirement for the interstate-commerce element is not required. United States v. Hattaway , 740 F.2d 1419, 1428 (7th Cir. 1984) ("The defendant's knowledge of whether a state line has been crossed thus is irrelevant to whether he has violated the Mann Act ....").

¶21. The holdings of Torres and Hattaway illustrate that the jurisdictional element of a federal crime does not reflect upon culpability. Stated differently, a dismissal for lack of jurisdiction is not a dismissal on the merits of the crime. Thus, Torres and Hattaway offer guidance that a jurisdictional dismissal-even if it is in federal court-is not a favorable determination for purposes of a malicious-prosecution claim. See Bearden , 29 So.3d at 764 (The dismissal must "reflect on the merits of a criminal action or the innocence of the accused."). However, due to the fact that the instant issue is one of first impression in Mississippi and due to the fact that the parties cite a number of additional cases, the analysis continues.

¶22. Dr. Weiner cites United States v. Prentiss , 256 F.3d 971, 982 (10th Cir. 2001), overruled on other grounds by United States v. Cotton , 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), for the point that "[i]f the Government alleged, but failed to prove those elements, we would not say the district court was deprived of subject matter jurisdiction to hear the case; rather we would say Defendant was entitled to acquittal." To understand the rule that can be garnered from Prentiss , the Court looks to the facts and issue in Prentiss and its guiding authority.

¶23. In Prentiss , the issue was whether the government properly had alleged in the indictment the Indian and non-Indian statuses of the defendant and the victim such that federal jurisdiction was triggered. Id. at 974-75. Notably, however, a distinction exists between subject-matter jurisdiction to hear the case and the ultimate dismissal due to the lack of a jurisdictional element. Prentiss , 256 F.3d at 982. Thus, in concluding that the indictment's failure to allege the jurisdictional element did not affect the court's ability to hear the case, the Prentiss Court stated that the defendant would be entitled to an acquittal if the government failed to prove the jurisdictional element. Id. at 982-83. While Prentiss 's mention of acquittal does seem to reflect upon innocence, it does not sway the Court.

¶24. First, the issue of Prentiss is distinguishable from the instant issue. Prentiss was not specifically determining if the jurisdictional elements reflect on the merits of the crime. Second, Prentiss 's acquittal pronouncement does not fit with additional federal law on whether jurisdictional elements reflect on the merits. See Torres , 136 S.Ct. at 1631. Third, Prentiss 's limited pronouncement makes more sense when considered alongside the case Prentiss cited: United States v. Martin , 147 F.3d 529 (7th Cir. 1998).

¶25. Like in Prentiss , Martin noted a distinction between the subject-matter jurisdiction to hear the case and the jurisdictional element. Martin , 147 F.3d at 532 ("[The jurisdictional element] is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case, here authorized by 18 U.S.C. § 3231."). Further, Martin stated that the interstate-commerce element is " 'jurisdictional' only in the shorthand sense that without that nexus, there can be no federal crime ...." Id. at 531-32 (citing Kanar v. United States , 118 F.3d 527, 530 (7th Cir. 1997) ); see also United States v. Sealed Appellant , 526 F.3d 241, 243 (5th Cir. 2008). Martin provided this point in order to conclude the following: "Even if the government fails to establish the connection to interstate commerce, the district court is not deprived of jurisdiction to hear the case." Martin , 147 F.3d at 532. Notably, Martin was distinguishable from Prentiss . The issue in Martin was whether a defendant could reopen a guilty plea on the ground that the government had failed to prove the jurisdictional element. Id. at 529. However, the pronouncements in both Prentiss and Martin are focused on determining the same central issue: whether a federal court has jurisdiction to decide a question of jurisdiction.

¶26. Here, no similar central issue exists. The parties do not dispute that the federal district court had subject-matter jurisdiction to rule that the government had failed to meet the interstate-commerce, jurisdictional element. The issue is whether the dismissal due to the lack of the jurisdictional element constitutes a favorable termination for the purposes of a malicious-prosecution claim. Thus, Prentiss 's and Martin 's pronouncements do nothing to add to or change the need for a determination on the merits.

¶27. In fact, if anything, Martin provides guidance that falls along the same lines of the guidance provided by Torres . Martin stated,

This court has recognized for decades that, despite defendants' tendency to confuse facts essential to be alleged as elements of the crime with jurisdictional requirements arising as a matter of law, once a defendant pleads guilty in court which has jurisdiction of the subject matter and of the defendant, as did the court in the instant case, the court's judgment cannot be assailed on grounds that the government has not met its burden of proving so-called jurisdictional facts.

Id. at 532 (emphasis added) (internal quotations omitted) (citing United States v. Hoyland , 264 F.2d 346, 352-53 (7th Cir. 1959) ; La Fever v. United States , 279 F.2d 833, 834 (7th Cir. 1960) ). The above-quoted language in Martin illustrates that an inherent difference exists in elements of the crime and the jurisdictional element. Combined with Torres 's guidance that "[j]urisdictional language need not contain the same culpability requirement as other elements of the offense," the Court concludes that, although the jurisdictional element is an element of the federal crime, it is not an element that reflects upon the merits. Torres , 136 S.Ct. at 1631.

¶28. As stated above, Bearden specifically provided that the dismissal must "reflect on the merits of a criminal action or the innocence of the accused" to be considered a favorable termination. Bearden , 29 So.3d 761 at 764. Further, holding that a dismissal on the jurisdictional element in federal court does not reflect on the merits is consistent with caselaw from around the country. In Bearden , the Court looked to Hatch v. Davis , 102 P.3d 774, 776 (Utah App. 2004). Notably, the underlying criminal case in Hatch dealt with a dismissal in federal court for a lack of jurisdiction. Hatch , 102 P.3d at 776. Hatch considered that a jurisdictional dismissal does not reflect on the merits, and it concluded that "a defendant is required to have the underlying action resolved on the merits in his or her favor prior to initiating a claim for wrongful use of civil proceedings." Id. at 780-81. More recently than Martin , the United States Court of Appeals for the Seventh Circuit has stated,

Although not "mere surplusage," a jurisdictional element does little more than ensure that the conduct regulated in a federal criminal statute is within the federal government's limited power to proscribe, thereby preventing the federal government from usurping power from the "States [who] possess primary authority for defining and enforcing the criminal law."

Negrete-Rodriguez v. Mukasey , 518 F.3d 497, 502 (7th Cir. 2008) (quoting Brecht v. Abrahamson , 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). Mukasey went on to state that "[t]he only purpose of the commerce element ... is to obtain federal jurisdiction over the crime." Mukasey , 518 F.3d at 502.

¶29. Further, the United States Court of Appeals for the Second Circuit has addressed the favorable-termination element of a malicious-prosecution claim in Murphy v. Lynn , 118 F.3d 938, 948 (2d Cir. 1997). "Where the prosecution did not result in an acquittal, it is deemed to have ended in favor of the accused ... only when its final disposition is such as to indicate the innocence of the accused." Murphy , 118 F.3d at 948 (emphasis added). Murphy went on to state, "Certain types of dispositions that do not result from adjudication of the merits have generally been held not sufficiently favorable to the accused to be indicative of innocence. These include dismissals for lack of subject matter jurisdiction." Id. ; see also Fish v. Watkins , 298 F. App'x 594, 597 (9th Cir. 2008) (internal quotation omitted) ("A judgment on the merits is a favorable termination, while a procedural or technical dismissal is not.")

¶30. Turning to the instant case, the trial court pointed out that the federal district court's order "went to the substantive elements of the crime of the Mann Act." While true that the order did entertain substantive elements of the Mann Act, the entertainment constituted mere dicta; the holding addressed only jurisdiction. The federal district court held, "For the foregoing reasons, the court finds that the defendant's motion to dismiss for lack of federal jurisdiction should be and the same is hereby GRANTED." Specifically, the order also stated that "the government is confusing the elements required to prove the [elements] of an 'attempted crime' with the subject matter jurisdictional requirements for the court initially to acquire jurisdiction even to hear the case.' " Finally, the order provided that a state-court action could be brought, albeit without the federal jurisdictional requirement.

¶31. Under a de novo review of the issues of law and summary judgment-specifically considering Bearden and additional applicable caselaw-the Court holds that the instant jurisdictional dismissal does not reflect on the merits of the crime. In order to constitute a favorable termination for the purposes of a malicious-prosecution case, the dismissal must reflect on the merits of the crime. Bearden , 29 So.3d 761 at 764. Thus, the trial court should not have denied the motion for partial summary judgment.

C. Whether the government abandoned its prosecution of Dr. Weiner, creating a favorable termination for the purposes of the malicious-prosecution claim.

¶32. Citing Mississippi caselaw, Dr. Weiner makes an alternative argument that a favorable termination occurred when the government abandoned its prosecution by not appealing the federal district court's dismissal. The Court considers the instant issue de novo because it presents an issue of law about whether a failure to take an appeal on a jurisdictional dismissal amounts to an abandonment under Mississippi caselaw. See Barlow , 233 So.3d at 227.

¶33. In Joiner Insurance Agency, Inc. v. Principal Casualty Insurance Co. , 684 So.2d 1242 (Miss. 1996), the Court considered abandonment for the purposes of satisfying the termination element of a malicious prosecution. Specifically, the Court stated that "if the facts or circumstances underlying the dismissal without prejudice demonstrated that the claim was abandoned because the plaintiff could not prevail on the merits , then the dismissal was a final termination" for malicious-prosecution purposes. Joiner Ins. , 684 So.2d at 1245 (emphasis added).

¶34. As analyzed above, a dismissal for lack of jurisdiction, even in federal court, does not amount to a dismissal on the merits. Joiner Insurance shows that abandonment in Mississippi (while not requiring dismissal with prejudice) requires the facts and circumstances of the dismissal to illustrate a failure to prevail on the merits. See Joiner Ins. , 684 So.2d at 1245. Therefore, Joiner Insurance does not support Dr. Weiner's argument.

¶35. Dr. Weiner also cites Lochridge v. Pioneer Health Services of Monroe County, Inc. , 86 So.3d 942 (Miss. Ct. App. 2012). In considering whether the malicious-prosecution case had accrued, the Lochridge Court determined that in order to accrue, the termination element of a malicious-prosecution claim does not require "an appealable judgment or dismissal with prejudice."

Lochridge , 86 So.3d at 946 (citing Joiner Ins. , 684 So.2d at 1244 ). The Lochridge Court looked to the facts of the case to determine that abandonment had occurred. Specifically, in Lochridge , Pioneer Health Services submitted a letter to the district attorney stating that it did "not wish to pursue criminal charges against Linda Lochridge at this time." Lochridge , 86 So.3d at 946.

¶36. In Lochridge , specific proof of abandonment was provided. Aside from arguing that the government failed to take an appeal, Dr. Weiner provides no such factually similar information. Further, Lochridge does not address whether the failure to appeal amounts to an abandonment, and most importantly, Lochridge does not change the rule that the dismissal must reflect the merits. See Joiner Ins. , 684 So.2d at 1245. Thus, Lochridge is distinguishable from the instant case and does not provide support for Dr. Weiner's argument.

¶37. Dr. Weiner also cites Hyer v. Caruso , 102 So.3d 1232 (Miss. Ct. App. 2012). In Hyer , the charges against Caruso "were remanded to the file." Id. at 1236. Once again, Dr. Weiner presents no such factually similar situation to garner guidance or support from Hyer .

¶38. In sum, when a dismissal does not address the merits, a failure of the government to appeal does not amount to an abandonment. Therefore, the instant issue does not bar summary judgment.

CONCLUSION

¶39. Under a de novo review, the trial court erred in denying the partial summary-judgment motion. The Court reverses the judgment and remands the case with instructions for the trial court to enter an order granting partial summary judgment in favor of HMA and Rowe.

¶40. REVERSED AND REMANDED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. COLEMAN AND MAXWELL, JJ., NOT PARTICIPATING.

      Teena Rowe did not file her own briefs, but she joined and adopted the entire substance of HMA's brief and HMA's reply brief.

      Dr. Weiner's second motion for reconsideration was filed in May 2017. The first trial judge had granted HMA and Rowe's motion for partial summary judgment nearly six years before, in November 2011.


text:
    Douglas NEELY a/k/a Douglas Neely, Jr. v. STATE of Mississippi
    NO. 2017-KA-01514-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. After a jury trial, Douglas Neely was convicted of resisting arrest and felony fleeing a law enforcement officer. The Circuit Court of Oktibbeha County sentenced Neely, for felony fleeing a law enforcement officer, to five years as an habitual offender and, for resisting arrest, to six months, to run consecutive to the five year sentence. Neely appeals. His appellate counsel has filed a brief in accordance with Lindsey v. State , 939 So.2d 743 (Miss. 2005), certifying to this Court that, after examining the record, no arguable issues exist. Neely's appellate counsel requested and was granted additional time for Neely to file a pro se brief raising any issues he desired to raise on appeal. Neely never filed a pro se brief. We affirm Neely's conviction and sentence.

FACTS

¶2. In the early morning hours of September 16, 2014, Deputy Sheriff Josiah Buckner was patrolling near Club Rock in Oktibbeha County when he observed a vehicle pulling out of the Club Rock parking lot. The vehicle, which had no headlights on, first proceeded southbound in the northbound lane, then swerved from lane to lane. When Deputy Buckner turned on his blue lights to initiate a stop, the vehicle's driver turned on his vehicle's headlights. Deputy Buckner, in uniform, approached the driver's side and noticed a strong odor of intoxicating beverage emanating from the vehicle and its driver. Deputy Buckner noticed that the driver, later identified as Douglas Neely, appeared extremely nervous. Upon checking Neely's driver's license through dispatch, Deputy Buckner learned that the license had been suspended. Because Neely seemed so nervous and because Deputy Buckner suspected that he had been driving under the influence, he radioed Deputy Sheriff Tim Cook for backup and asked Neely to step out of the car. Instead of following Deputy Buckner's instruction, Neely grabbed the steering wheel, slammed down the accelerator, and sped away.

¶3. Deputy Buckner pursued Neely for approximately one mile, achieving speeds of eighty miles per hour in a forty-mile-per-hour residential zone. Neely turned a corner and his vehicle got stuck in mud. Deputy Buckner pulled up behind Neely's vehicle, exited his patrol car, and approached the driver's side. The officer observed that the driver's side window still was rolled down. He drew his taser and told Neely to step out of the vehicle or he would be tased. Because Neely showed no sign of compliance, Deputy Buckner fired the taser. But because one of the taser's two probes failed to make contact with Neely, the taser was ineffective to incapacitate him. Deputy Buckner followed up by attempting a dry stun to Neely's shoulder area. As he reached into the vehicle and touched the taser to Neely's shoulder area for the dry stun, Neely began making a growling noise and bit Deputy Buckner's hand. Deputy Buckner testified that he stunned Neely two or three times, and each time Neely bit his hand.

¶4. Having failed to subdue Neely, Deputy Buckner attempted to pull him out of the vehicle, and Neely grabbed his arm. At that point, Neely's car got traction, and he sped off, dragging Deputy Buckner along the road until he was flung from the vehicle. Then, he and Deputy Cook, who had arrived when Deputy Buckner had been trying to pull Neely out of the car, ran in an attempt to catch up with Neely's vehicle. They heard a crash and discovered that Neely had driven off an embankment. Neely had fled the scene on foot, but he turned himself in the next day.

¶5. Neely gave a statement to Deputy Sheriff Mahyar Netadj in which he admitted having used powder cocaine and alcohol before going to Club Rock. Neely also admitted that he had been aware that he had been pulled over by a police officer when he decided to flee to avoid arrest. Neely said he fled, wrecked his car, and ran into the woods. Neely denied any recollection of his second encounter with Deputy Buckner, in which he had bitten Deputy Buckner and dragged him outside the vehicle.

¶6. Neely was tried on one count of simple assault of a law enforcement officer and one count of felony fleeing a law enforcement officer, as an habitual offender. On the charge of simple assault of a law enforcement officer, the trial court gave a lesser-included offense instruction on resisting arrest, a misdemeanor. The jury convicted Neely of resisting arrest and felony fleeing a law enforcement officer. The trial court found beyond a reasonable doubt that Neely was an habitual offender under Mississippi Code Section 99-19-81 (Rev. 2015) and sentenced him to the maximum of five years for felony fleeing and six months for resisting arrest.

DISCUSSION

¶7. This Court has adopted a procedure that governs cases in which an indigent defendant's appellate counsel has submitted a brief declaring that the client's case presents no arguable issues for appeal. Lindsey , 939 So.2d at 748. Initially, "counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7)." Id. In the brief,

counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

Id. Counsel must send a copy of the brief to the defendant, inform the defendant that counsel could find no arguable issues in the record, and advise the client that he or she has the right to file a pro se brief. Id. If the pro se brief raises an arguable issue, or if this Court finds an arguable issue in its independent review of the record, then "the [C]ourt must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal." Id. at 748-49.

¶8. Neely's appellate counsel submitted a brief in compliance with Lindsey . Appellate counsel certified that, after scouring the record thoroughly, he had found no arguable issues for appeal. Appellate counsel sent a copy of the brief to Neely, informing him that he had the right to file a pro se brief. This Court granted additional time for Neely to file a pro se brief, but he did not do so. After careful review of the record, the Court has found no arguable issues for appeal, and no supplemental briefing is required. Therefore, we affirm.

¶9. AFFIRMED.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.


text:
    George WALTMAN and Liberty Mutual Insurance Company v. ENGINEERING PLUS, INC.
    NO. 2017-CA-01747-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ATTORNEYS FOR APPELLANTS: JAMES A. WILLIAMS, LINDSEY BLACKWELL HARRIS
    ATTORNEYS FOR APPELLEE: ROBERT A. MILLER, MARGARET Z. SMITH, KATHLEEN I. CARRINGTON, Ridgeland
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. In 2013, Lauderdale County contracted with Norman Enterprises, Inc., a roofing company, to repair the roof of the Ulmer Building in Meridian, Mississippi. George Waltman, an employee of Norman Enterprises, fell through the roof while performing work. Waltman sued Engineering Plus, Inc., the project engineer, claiming it should have warned him of the dangerous condition of the roof. Engineering Plus moved for summary judgment, arguing it had no duty to warn Waltman. The Lauderdale County Circuit Court agreed and granted summary judgment to Engineering Plus. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In the summer of 2012, the Lauderdale County Board of Supervisors sought to replace the roofs of several county-owned buildings. A representative of the Board contacted Terrell Temple, an engineer and the president of Engineering Plus, to hire Temple's company as the project engineer for the Ulmer Building and Mount Barton School roof-repair projects in Meridian, Mississippi. Engineering Plus prepared the project details, the contract documents, and the bid paperwork to facilitate the Board's hiring a general contractor. Those documents set forth the scope of the projects and the responsibilities of the general contractor.

¶3. In February 2013, Lauderdale County advertised for bids using the documents prepared by Engineering Plus. Norman Enterprises submitted a bid, which the county accepted. On March 18, 2013, Lauderdale County entered into a contract that incorporated the bid details, with Norman Enterprises as the general contractor for the Ulmer Building project.

¶4. George Waltman, an employee of Norman Enterprises, worked on the Ulmer Building project. After Norman Enterprises had received the notice to proceed with the project, Waltman went to the Ulmer Building on July 23, 2013, to begin removing debris from the roof in preparation for the repairs. Within minutes of arriving at the site, Waltman stepped onto a deteriorated area of the roof and fell through, suffering injuries.

¶5. Waltman sued the project engineer, Engineering Plus, claiming that it knew of the dangerous condition of the roof and should have warned him. Engineering Plus filed a motion for summary judgment on the basis that it had no contractual or common law duty to warn Norman Enterprises's employees of the condition of the roof. The circuit court agreed with Engineering Plus.

¶6. On November 16, 2017, the circuit court entered a memorandum opinion and order in which it granted Engineering Plus's motion for summary judgment and dismissed the cause. Waltman appealed.

STANDARD OF REVIEW

¶7. When parties appeal a grant or denial of summary judgment, this Court employs a de novo standard of review. Bullock v. Life Ins. Co. of Miss. , 872 So.2d 658, 660 (¶ 6) (Miss. 2004). On de novo review, no deference is given to a lower court's decision.

McArthur v. Ingalls Shipbuilding, Inc. , 879 So.2d 500, 502 (Miss. Ct. App. 2004). This Court reviews all the evidence in the light most favorable to the non-moving party. Id.

ANALYSIS

¶8. "When the proof regarding only one element of a plaintiff's claim fails, the defendant is entitled to summary judgment, despite any factual disputes regarding the remaining elements of the claim." Hernandez v. Vickery Chevrolet-Oldsmobile Co. , 652 So.2d 179, 183 (Miss. 1995) (citing Grisham v. John Q. Long V.F.W. Post , 519 So.2d 413, 416 (Miss. 1988) ). The issue in this case involves only one element of George Waltman's claim: whether Engineering Plus had a duty to warn him of the dangerous condition of the roof. For an engineer to have an affirmative duty to warn of dangerous conditions, the engineer must have taken on, either by contract or conduct, the responsibility of maintaining the safety of the construction project. McKean v. Yates Eng'g Corp. , 200 So.3d 431, 435 (Miss. 2016).

I. Engineering Plus did not assume a duty by contract.

¶9. George Waltman argues that Engineering Plus assumed a contractual duty to supervise the Ulmer Building project based on the following language in the contract between Lauderdale County and Norman Enterprises: "It is further agreed that the work[ ] shall be done under the direct supervision and to the complete satisfaction of the County Engineer or his authorized representatives." The contract as a whole, however, indicates that the parties did not intend for Engineering Plus to be responsible for the safety of Waltman.

¶10. The contract specifies that Norman Enterprises was

responsible for all loss or damage arising out of the nature of the work aforesaid, or from the action of the elements, and unforeseen obstruction or difficulties which may be encountered in the prosecution of the same and for all risks of every description connected with the work for faithfully completing the whole work[.]

The contract further provides that Norman Enterprises "shall satisfy [itself] of the existing size and conditions of the project area." Other provisions of the contract reinforce the proposition that Norman Enterprises was the only party responsible for safety at the project's work site.

¶11. American Jurisprudence, Second Edition, sets out the following general rules of contract interpretation when two or more provisions are arguably in conflict:

Where there is an apparent repugnancy or conflict between two clauses or provisions of a contract, it is the province and duty of the court to find harmony between them and to reconcile them if possible.... No contract provision should be construed as being in conflict with another unless no other reasonable interpretation or construction is possible.... Where a repugnancy is found between clauses, ... [t]he clause contributing most essentially to the contract is entitled to the greater consideration, and a subsidiary provision should be so interpreted as not to be in conflict with what clearly appears to be the dominant purpose of the contract.... [T]his rule is tempered by the corollary that the more specific clause controls the more general.

17A Am. Jur. 2d Contracts § 374 (citations omitted).

¶12. The above contract provisions limited the responsibility for Waltman's safety-while at the work site-specifically to Norman Enterprises. These specific provisions control the more general provision that reads, the work "shall be done under the direct supervision of" Engineering Plus.

¶13. Engineering Plus did not assume a duty by contract to warn Waltman of the dangerous condition of the Ulmer Building's roof.

II. Engineering Plus did not assume a duty by conduct.

¶14. "[T]o determine whether an engineer ha[s] a supervisory duty outside the provisions of [a] contract," this Court expressly has adopted the "seven-factor test used in [ Hanna v. Huer, Johns, Neel, Rivers & Webb ....]" McKean , 200 So.3d at 434-35 (citing Hanna v. Huer, Johns, Neel, Rivers & Webb , 233 Kan. 206, 662 P.2d 243 (1983), superseded by statute as recognized in Edwards v. Anderson Eng'g, Inc. , 284 Kan. 892, 166 P.3d 1047 (2007) ).

Those factors are: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work.

Id. (quoting McKean v. Yates Eng'g Corp. , 210 So.3d 1037, 1044 (Miss. Ct. App. 2015) (quoting Hobson v. Waggoner Eng'g, Inc. , 878 So.2d 68, 72 (Miss. Ct. App. 2003) ) ).

¶15. With respect to this issue, Waltman argues only that Engineering Plus had knowledge of the dangerous condition of the roof. Knowledge of dangerous conditions, by itself, does not satisfy the Hanna factors. Indeed, a review of the entire record shows that no evidence was offered that Engineering Plus had responsibility for any supervision or control of the work, that Engineering Plus had participated in activities at the work site, that Engineering Plus had assumed responsibility for safety practices, or that Engineering Plus had the authority to issue changes or to stop the work.

¶16. In the pleadings below and in his brief before this Court, Waltman does not allege any conduct that could satisfy the Hanna factors. Accordingly, Engineering Plus did not assume a duty by conduct.

III. Waltman's remaining arguments are unavailing.

¶17. Throughout his brief, Waltman makes several arguments that have no bearing on the controlling issue of whether Engineering Plus had a duty to warn of the dangerous condition of the Ulmer Building's roof. For example, Waltman writes, "The relation of Engineering Plus to Norman Roofing was that of owner-invitee. A business invitee is defined as someone who enters onto another's premises at the invitation of the owner for the purpose of benefitting both parties." We have read the entire record, and no evidence has been offered to suggest that Engineering Plus owned or controlled the Ulmer Building. Additionally, Waltman never asserted or pursued a premises liability claim at the trial level.

CONCLUSION

¶18. George Waltman did not establish that the defendant had a duty to warn him of the dangerous condition of the Ulmer Building's roof. The Circuit Court of Lauderdale County correctly granted summary judgment in favor of Engineering Plus. We affirm the circuit court's judgment.

¶19. AFFIRMED.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Although an architect's duty was at issue in McKean , the context of that opinion makes clear that the rule extends to engineers as well.

      This is the only provision in the contract that arguably could create a duty.