author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    Philip W. GAINES v. The MISSISSIPPI BAR
    NO. 2017-BR-00081-SCT
    Supreme Court of Mississippi.
    April 5, 2018
    ATTORNEY FOR APPELLANT: JOHN G. CORLEW
    ATTORNEY FOR APPELLEE: ADAM B. KILGORE
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Philip W. Gaines petitions this Court for reinstatement to the practice of law following his suspension. Upon review of the petition, we appointed Chancellor T. K. Moffett as a special master to conduct an evidentiary hearing to develop the record further. Concerning the matters he reviewed, Chancellor Moffett recommends that Gaines be reinstated. The Mississippi Bar also supports Gaines's reinstatement. After review, we agree. We find that Gaines has satisfied the jurisdictional requirements for reinstatement, and we grant his petition.

FACTS AND PROCEDURAL HISTORY

¶ 2. Philip Gaines was admitted to the Mississippi Bar in 1986 and primarily practiced in the area of insurance-defense law. Gaines was suspended from the practice of law by a Complaint Tribunal appointed by this Court in The Mississippi Bar v. Philip W. Gaines , Cause No. 2013-B-1056, for violating Rules 1.15(a) and (b) and 8.4(a), (b), (c), and (d) of the Mississippi Rules of Professional Conduct ("MRPC"). On April 21, 2014, the Complaint Tribunal, by means of an Agreed Opinion and Judgment, imposed a three-year suspension from the practice of law upon Gaines, effective January 22, 2013.

¶ 3. The Complaint Tribunal detailed the specific misconduct by Gaines in three separate matters. In the first matter, Gaines represented an insurance company in a suit for medical payments and uninsured motorist ("UM") coverage. The insurance company authorized Gaines to use $25,000 of the UM coverage toward settlement. The company placed those funds in trust with Gaines. Gaines settled the matter without using the UM funds but falsely amended the release to indicate that the $25,000 had been paid toward the settlement. Gaines then submitted false expense statements on the file for unrelated personal expenses to obtain the $25,000 held in trust.

¶ 4. In the second matter, Gaines represented the same insurance company, which authorized him to waive its medical payment subrogation rights in settlement of a case. Gaines secured a medical payment subrogation recovery of $6,666.67 for the company but did not advise the company of the receipt of those funds. Gaines submitted false expense statements on the file for unrelated personal expenses in order to obtain the amount held in trust.

¶ 5. In the third matter, Gaines represented a different insurance company related to its subrogation rights held by a medical provider. Gaines placed $6,500 from the insurance company into his firm's trust account. Gaines then submitted false expense statements on the file for unrelated personal expenses to obtain $5,498.14 of the amount held in trust.

¶ 6. The Complaint Tribunal, as part of the Opinion and Judgment, ordered Gaines to satisfy multiple conditions precedent prior to reinstatement. The Tribunal ordered Gaines to continue participation with the Lawyers and Judges Assistance Program ("LJAP"). Further, the Tribunal ordered Gaines to pay $34.99 for costs and expenses incurred by the Bar in the investigation of the informal Bar Complaint and $230 for costs and expenses the Bar incurred in prosecution of the Formal Complaint against him. Additionally, Gaines was directed to notify all of his clients, in writing, that he had been suspended and advise them that he would be unable to act as an attorney. Finally, Gaines was required to notify all parties opposite, as well as all courts and agencies in which he had an active case, that he had been suspended. Per the Tribunal's direction, Gaines filed a certificate of compliance with the Clerk of the Supreme Court with these provisions on May 20, 2014, within thirty days of entry of the Agreed Opinion and Judgment on April 21, 2014.

¶ 7. On January 19, 2017, Gaines filed his petition for reinstatement with this Court. The Bar filed its answer, supporting Gaines's petition for reinstatement. After review of the petition and the Bar's answer, this Court appointed Chancellor T. K. Moffett as a special master to further develop the record. We directed Chancellor Moffett to conduct an evidentiary hearing on the following issues:

I. Whether Philip W. Gaines engaged in the unauthorized practice of law during his suspension by:
A. Accepting employment as an expert witness, or
B. Rendering his opinion to attorneys as to which sections of an insurance policy might apply in a matter;
II. Whether Philip W. Gaines misrepresented the fact that his former law firm does not oppose his reinstatement as is intimated in the March 8, 2017, letter from Peter C. Abide, Esq.;
III. Whether Philip W. Gaines misrepresented the nature and number of the offenses that led to his suspension to those persons from whom he solicited letters of recommendation for reinstatement.

Chancellor Moffett held a hearing on October 18, 2017 (the "October hearing"), and followed that hearing with a telephonic hearing on December 11, 2017 (the "December hearing"). Per our direction, Chancellor Moffett filed his findings of fact and conclusions of law with this Court. He recommended that Gaines be reinstated. After our de novo review of the record, we agree.

STANDARD OF REVIEW

¶ 8. This Court maintains " 'exclusive and inherent jurisdiction' over attorney reinstatement cases." In re Reinstatement of Thompson , 156 So.3d 226, 228 (Miss. 2013) (citing In re Morrison , 819 So.2d 1181, 1183 (Miss. 2001) ). We review the evidence in disciplinary matters "de novo, on a case-by-case basis." In re Reinstatement of Thompson , 156 So.3d at 228 (citing In re Morrison , 819 So.2d at 1183 ). Mississippi Rule of Discipline 12 provides that attorneys either suspended or disbarred for a period of six months or longer must petition the Court in order to be reinstated. In re Benson , 890 So.2d 888, 889-90 (Miss. 2004) ; Miss. R. Discipline 12(a).

¶ 9. To succeed in a petition for reinstatement, a petitioner must "prove 'that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law.' " In re Reinstatement of Thompson , 156 So.3d at 228 (quoting Stewart v. The Mississippi Bar , 5 So.3d 344, 346-47 (Miss. 2008) ). Further, the petitioner must "exhibit '[a] firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed.' " Id . (quoting In re Petition of Massey , 670 So.2d 843, 845 (Miss. 1996) ).

ANALYSIS

¶ 10. When deciding whether or not to reinstate an attorney, the main issue before the Court is "the attorney's rehabilitation in conduct and character since the disbarment." In re Benson , 890 So.2d at 890 (quoting In re Holleman , 826 So.2d 1243, 1246-47 (Miss. 2002) ). A petitioner demonstrates such rehabilitation "by meeting the jurisdictional requirements of Rule 12." Id. A "petitioner carries the burden of proving that he has rehabilitated himself and established the requisite moral character to entitle him to the privilege of practicing law." Id. To demonstrate rehabilitation, the petitioner must:

(1) state the cause or causes for suspension or disbarment;
(2) give the name and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct;
(3) make full amends and restitution;
(4) show that he has the necessary moral character for the practice of law; and
(5) demonstrate the requisite legal education.

Id. Further, "[t]he Bar's position, though not a jurisdictional requirement, is a factor for consideration as well." In re Reinstatement of Thompson , 156 So.3d at 228 (citing In re Benson , 890 So.2d at 890 ). Here, the Bar supports Gaines's reinstatement and asserts that he has satisfied his burden of proof.

¶ 11. As a preliminary matter, Gaines's original suspension and discipline are not before us today. In this case, the Complaint Tribunal, pursuant to Mississippi Rule of Discipline 8, suspended Gaines for three years. Neither party appealed this judgment, and the sole issue we address today is Gaines's reinstatement. See Miss. R. Discipline 9 (governing appeals).

¶ 12. We do, however, recognize that "commingling funds is the 'cardinal sin of the legal profession.' " The Mississippi Bar v. Ogletree , 226 So.3d 79, 83 (Miss. 2015) (quoting Mississippi Bar v. Coleman , 849 So.2d 867, 874 (Miss. 2002) ). Further, commingling "is indeed the ultimate breach of trust." Coleman , 849 So.2d at 874. "[C]ommingling and misappropriation damage the 'dignity and reputation of the legal profession.' " Ogletree , 226 So.3d at 84.

¶ 13. Here, from the cold record, Gaines's conduct appears egregious. He intentionally converted his clients' funds for personal use and confessed only after being confronted by his colleagues. As discussed below, though, Gaines has evidenced rehabilitation, provided restitution and satisfied the jurisdictional requirements for reinstatement.

¶ 14. Although we certainly consider Gaines's misconduct, we will not deny reinstatement on the grounds that we may have issued a harsher punishment initially. " 'One thing is clear and that is that the conduct upon which the original suspension proceedings were had may not furnish grounds for denial of reinstatement.' " Matter of Reinstatement of Nixon , 618 So.2d 1283, 1289 (Miss. 1993) (quoting Haimes v. Mississippi State Bar , 551 So.2d 910, 912 (Miss.1989) ). Also, we have recognized that "[a] suspended attorney petitioning for reinstatement has the burden of proving his case, but the case he must prove is not the same or as great as that demanded of one who has been disbarred. Haimes , 551 So.2d at 912. Further, a three-year suspension-short of disbarment-is one of the strictest sanctions imposed in our caselaw. Lastly, even in the case of disbarments, a petitioner may seek reinstatement from this Court. Miss. R. Discipline 12(a); see Matter of Baker , 649 So.2d 850, 851 (Miss. 1995) (reinstating disbarred petitioner conditionally where petitioner had embezzled client's funds from trust account).

I. Cause for Suspension

¶ 15. Gaines's petition specifies the multiple rules he violated in the MRPC. Further, Gaines provided detailed accounts of each of the three instances of conversion that constituted violations of the MRPC and led to his suspension. Gaines has provided enough detail about his violations to satisfy this requirement. See In re Asher , 987 So.2d 954, 959 (Miss. 2008) (holding that a mere recitation of the rules violated is not sufficient to satisfy the jurisdictional requirement of disclosing the cause for disbarment or suspension).

II. Names of Those Who Suffered Pecuniary Loss

¶ 16. Gaines's petition provided the following names of the victims who suffered direct or indirect pecuniary loss due to his improper conduct: Todd Bevill, as Section Manager at State Farm Mutual Automobile Insurance Company; Trey Chapman, as Regional Claims Manager at Safeway Insurance Company; and Edward Currie Jr. with Currie Johnson & Myers, P.A. State Farm and Safeway were two of Gaines's clients, and Currie Johnson & Myers, P.A. was Gaines's former law firm. Gaines also provides the address of each party.

III. Amends and Restitution

¶ 17. Gaines repaid the misappropriated funds to his clients, with interest. Further, Gaines reimbursed the Bar $34.99 in expenses and $230.00 in costs incurred in this matter in compliance with Mississippi Rule of Discipline 12.

¶ 18. One of the issues addressed by Chancellor Moffett was whether or not Gaines made full restitution to his former firm in the wake of his misconduct. Exhibit 2 attached to the Bar's answer shows that Gaines did repay his firm for the amounts it paid to Gaines's clients. Chancellor Moffett at the December hearing inquired of Peter Abide, one of Gaines's former law partners, whether the law firm had made a formal claim for restitution against Gaines. Abide testified that the firm "did not pursue a formal claim." We agree with Chancellor Moffett's finding that "the evidence demonstrates that the law firm never demanded restitution for any alleged damages." We find that Gaines did provide restitution for his misconduct; he cannot now be faulted for not providing restitution where no additional claim was made for it.

IV. Requisite Moral Character

¶ 19. Gaines asserted that his misconduct in converting client funds was out of character with his long-term proven character and habits. Gaines also recognized that his past history of good character does not excuse or mitigate the egregious offenses he committed.

A. Civic, Church and Charitable Involvement

¶ 20. Since his suspension, Gaines has been involved in a number of charitable organizations including: the Billy Brumfield House, Stewpot Ministries, Habitat for Humanity and The Friends of Mississippi State Hospital. Further, Gaines has taught continuing education courses to multiple groups of professionals.

B. Letters of Recommendation

¶ 21. In Gaines's petition, he included sixty-six letters recommending his reinstatement from sixty-eight members of the Mississippi Bar, and one additional letter from his current employer. The Bar received twelve additional letters recommending Gaines's reinstatement. Each of the letters in support of Gaines's reinstatement which addressed his specific actions of client funds conversion described his actions resulting in his suspension as out of character. The letters also described Gaines's commitment to rehabilitating himself.

¶ 22. Chancellor Moffett received evidence at the October hearing concerning the process by which Gaines sought his letters of recommendation. Chancellor Moffett concluded that Gaines "did not misrepresent the nature and number of offenses leading to his suspension to those who wrote letters on his behalf." Gaines provided evidence of the form email that he sent out to request letters of reference. Nothing in the form email raises any concern for this Court; further, Gaines recounted a number of times that he had detailed conversations regarding the specifics of his misconduct. While it appears that certain persons who wrote in support of Gaines's petition for reinstatement may not have been intimately aware of the extent of Gaines's misconduct, Gaines did not make any misrepresentations concerning the number of offenses that led to his suspension.

¶ 23. The Bar did receive one letter in opposition to Gaines's reinstatement from Peter Abide, Gaines's former law partner. Abide objected to implications that Gaines's former firm has no objection to his reinstatement. Chancellor Moffett, after receiving evidence at the December hearing, found that Gaines's former law firm did not articulate a position concerning Gaines's reinstatement. The record supports this conclusion. Abide testified that the matter was never discussed or voted upon by the firm.

¶ 24. Further, after review of Gaines's petition, we find-especially given the petition's simultaneous discussion of Gaines's other victims-that his petition does not misrepresent his former firm's position concerning his petition. His petition states that he had "been advised that they do not oppose his reinstatement" and that he had "been advised that they have no objection to his reinstatement." No evidence in the petition, the Bar's answer or the two evidentiary hearings disputes Gaines's representation about what he had been advised.

C. Employment Since Suspension

¶ 25. After his suspension, Gaines began working full-time with the Mississippi State Hospital in October 2013 and is currently employed there. His job duties include acting as an investigator in the Forensics Department, serving as a court liaison on certain files and conducting presentations for hospital administrators, mental-health service practitioners, and law-enforcement and court officials.

¶ 26. Further, Gaines worked as a paralegal and an expert witness for one attorney since his suspension. Gaines asserted that he was forthright to all with whom he worked of his inability to practice law and did not engage in the unauthorized practice of law.

¶ 27. "[T]he issue of a disbarred or suspended attorney's unauthorized practice of law is a matter to be inquired into in reinstatement proceedings since such activity evidences a disregard of and contempt for the order of disbarment or suspension." In re Reinstatement of Parsons , 890 So.2d 40, 43 (Miss. 2003). We have reinstated a number of attorneys who worked as paralegals during their suspensions or disbarments. See In re Petition of Coleman , 949 So.2d 680, 683 (Miss. 2006) (citing petitioner's position as a paralegal in the context of "reestablishing his legal career and reputation"); In re Reinstatement of Holleman , 826 So.2d 1243, 1247 (Miss. 2002) ; Matter of Reinstatement of Nixon , 618 So.2d at 1289 ; Williams v. Mississippi State Bar Ass'n , 492 So.2d 578, 578 (Miss. 1986).

¶ 28. Some of Gaines's testimony in his deposition taken by the Bar implied that a law firm had hired Gaines for his legal opinion and advice on what portions of an insurance policy applied in a particular matter. Gaines testified that he worked as an insurance expert for a firm and "went through some things with the policy with them to figure out which sections of the policy might apply or not." In the evidentiary hearings, Gaines testified that he merely reviewed files for the different attorneys and recommended to his supervising attorneys which types of coverage would apply to certain damages. He also looked for claims that had been double-paid. After review of the additional evidentiary hearings in this matter, we find that Gaines did not engage in the unauthorized practice of law during his work as a paralegal.

¶ 29. Also, Tim Moore, an attorney who designated Gaines as an expert witness during his suspension, testified that he needed Gaines to testify as to whether a certain practice by an insurance company deviated from the industry standard. Moore expected Gaines to rely on his knowledge of the insurance industry both from his experience as an attorney and from his experience with insurance claims and underwriting policies. Also, evidence was entered into the record that Gaines had extensive background knowledge of the insurance industry outside his time as a practicing attorney. Further, the record is clear that Gaines never did actually testify in any proceeding.

¶ 30. Gaines also testified on his own behalf and represented that during his suspension he had never made an appearance as a lawyer or taken a deposition. He also stated that he had never taken work as a paralegal without informing the supervising lawyer that he was suspended and could not practice law on the firm's behalf.

¶ 31. Here, we find that Gaines did not engage in the unauthorized practice of law. As the development of our caselaw has evidenced, employment as a paralegal during suspension is commendable, as it serves to keep the petitioner up to date on the law. Petitioners, however, must be vigilant-as Gaines was-to never engage in the unauthorized practice of law or represent that they can. Gaines never entered an appearance as an attorney, never took a deposition, never interacted with a client, and never prepared documents that were filed with a court. In fact, Gaines consciously ensured that all those who interacted with him-from supervising lawyers and employers to court officials-knew that he had been suspended by this Court. As such, he did not engage in the unauthorized practice of law.

D. Mental and Emotional Status/Personal Capacity

¶ 32. The Complaint Tribunal ordered Gaines to participate in LJAP. Gaines complied with this order and signed a two-year monitoring contract with LJAP. Additionally, Gaines testified that he is a regular participant in a lawyer support group and also has attended a weekend retreat for members of the program. Gaines also expresses interest in participating with LJAP in the future to assist other lawyers who share similar experiences to his own. Further, Gaines testified that he is in good health and exercises regularly.

V. Requisite Legal Learning

¶ 33. Without the directive of the Complaint Tribunal, Gaines took the Multi-State Professional Responsibility Exam (MPRE) with a passing score of 111 out of a possible 150. Further, Gaines participated as a student in numerous legal education seminars and programs with an emphasis on ethics, alternative dispute resolution, professional and personal development and law-practice management. Gaines also reviewed weekly decisions handed down by the Mississippi Supreme Court and Court of Appeals, as well as the United States Supreme Court and the United States Fifth Circuit Court of Appeals. Also, as mentioned above, Gaines served as a paralegal for several attorneys during this period. We recently have found that actions similar to Gaines's conduct after suspension merited reinstatement. Derivaux v. The Mississippi Bar , 226 So.3d 97, 101 (Miss. 2016) (reinstating where petitioner passed MPRE with a score of 92, participated in CLE seminars and regularly reviewed the Mississippi Supreme court hand-down list); see also In re Petition of Coleman , 949 So.2d at 683 (citing petitioner's employment as a paralegal).

CONCLUSION

¶ 34. Philip W. Gaines has satisfied the jurisdictional requirements under Mississippi Rule of Discipline 12. Gaines provided sufficient proof of his rehabilitation and has shown a firm resolve to live a correct life so as to convince a reasonable mind that he has reformed. Therefore, Gaines's petition for reinstatement to the practice of law in the State of Mississippi is hereby granted.

¶ 35. PETITION OF PHILIP W. GAINES FOR REINSTATEMENT TO THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS GRANTED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      Gaines represented to the Complaint Tribunal that he had not practiced law since January 22, 2013, and, as a result, the Tribunal suspended Gaines for three years effective January 22, 2013.

      We also note that the Bar's position remains unchanged after both the October and December hearings.

      A number of these opinions either distinguish or decline to apply Mississippi Bar Ethics Opinion No. 96. We need not do so, though, as the Mississippi Bar withdrew Ethics Opinion No. 96 on April 6, 2013. Mississippi Bar Ethics Opinion No. 171 -applying only to disbarred attorneys-also was withdrawn on the same date. See also In re Reinstatement of Parsons , 890 So.2d at 43 (Miss. 2003) (citing Ethics Opinions No. 96 and 171 ).


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, FOR THE COURT:

license: Public Domain

text:
    CENTRAL INSURERS OF GRENADA, INC. v. William GREENWOOD d/b/a Antique Wood Company of Mississippi
    NO. 2016-IA-01367-SCT
    Supreme Court of Mississippi.
    May 31, 2018
    ATTORNEYS FOR APPELLANT: THOMAS L. CARPENTER, JR., GULFPORT, CARR ALLISON
    ATTORNEYS FOR APPELLEE: DREW M. MARTIN, CHUCK McRAE
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. By interlocutory appeal, Central Insurers of Grenada, Inc., challenges the Warren County Circuit Court's denial of its motion to dismiss William Greenwood's complaint against it for insufficient service of process. Finding error in the trial court's determination that the Mississippi Commissioner of Insurance was authorized to accept service of process on Central's behalf, we reverse the trial court's judgment and remand this case for further proceedings.

FACTS

¶ 2. Central is a Mississippi corporation licensed by the Mississippi Insurance Commissioner to operate as an "insurance producer." On July 10, 2013, William Greenwood, the owner of Antique Wood Company of Mississippi, filed a complaint in Hinds County Circuit Court against Central and three other defendants, alleging breach of contract, conspiracy, and bad faith due to the defendants' refusal to provide coverage under a commercial liability insurance policy Greenwood had purchased from them. Greenwood's complaint acknowledges that Central is a Mississippi corporation, identifies Lynn Simmons Grim as Central's registered agent for service of process, and lists an address in Grenada County, Mississippi, where Grim may be served. However, Greenwood did not personally serve process on an officer or registered agent of Central, nor did he mail a copy of the complaint and summons directly to Central or its registered agent. Instead, on August 9, 2013, Greenwood's process server served a copy of the complaint and summons on an employee of the Mississippi Commissioner of Insurance. The Commissioner's legal process clerk then forwarded a copy of the complaint and summons, along with a notification letter, to Central via certified mail.

¶ 3. Central filed its answer to the complaint on October 14, 2013, raising the affirmative defense of "failure and/or insufficiency of service of process." Central also filed a separate motion to dismiss for insufficient service of process on November 11, 2013. In its motion, Central argued that it could not be served through the Commissioner and that Greenwood never served its registered agent for service of process. Central asked the trial court to dismiss Greenwood's claims against it with prejudice due to Greenwood's failure to correct the improper service of process after receiving notice of such in Central's answer, and due to the expiration of the statute of limitations. This motion was scheduled for a hearing in January 2014.

¶ 4. Prior to the hearing on Central's motion to dismiss, another defendant in the case filed a motion to transfer venue. The trial court granted this motion on January 23, 2014, and ordered Greenwood to choose between Rankin and Grenada Counties as the new venue for the case. The trial court also rejected Greenwood's assertion that Warren County was a proper choice of venue. This Court granted Greenwood's petition for interlocutory appeal and reversed the trial court's judgment, finding that Warren County was an appropriate venue for the case and that Greenwood's choice of permissible venue options controlled.

Greenwood v. Mesa Underwriters Specialty Ins. Co. , 179 So.3d 1082, 1087 (Miss. 2015). On remand, the case was transferred to Warren County Circuit Court.

¶ 5. After the transfer of venue was complete, Central noticed for a hearing its motion to dismiss. The parties submitted briefs in support of and in opposition to the motion, and a hearing was held on August 24, 2016. During the hearing, Greenwood argued that Central was an "insurance company" subject to the supervision of the Commissioner under Section 83-5-1 of the Mississippi Code. See Miss. Code Ann. § 83-5-1 (Rev. 2011). As such, Greenwood contended the Commissioner was authorized by law-specifically, Section 83-5-11-to receive service of process on Central's behalf. Miss. Code Ann. § 83-5-11 (Rev. 2011). In response, Central asserted that Section 83-5-11 did not apply to it because it did not operate as an "insurance principal." Central also argued that no provision of Title 83 of the Mississippi Code required it to appoint the Commissioner as its agent for service of process.

¶ 6. Following the hearing, the trial court entered an order denying Central's motion to dismiss. The basis of the trial court's ruling was that Central was a "solicitor and deliverer of application for insurance" under Section 83-21-37 of the Mississippi Code. See Miss. Code Ann. § 83-21-37 (Rev. 2011). Thus, the trial court concluded that " MRCP Rule 4(h) would have been satisfied by service of the summons and complaint upon the registered agent with the Secretary of State ... or service of the summons and complaint upon the Commissioner of Insurance pursuant to Section 83-21-37, as was done in the case sub judice." The trial court also found that Central had admitted receiving the notice of service required by Section 83-5-11.

¶ 7. Aggrieved by the trial court's decision, Central filed a petition for interlocutory appeal, which this Court granted. On appeal, Central argues that the trial court erred as a matter of law in finding that Greenwood's service of process on the Commissioner was authorized by Section 83-21-37. In addition, Central argues that Section 83-5-11 does not apply to it because it is not an "insurance company." And finally, Central contends that Greenwood's claims against it should be dismissed with prejudice due to Greenwood's failure to serve its registered agent prior to the expiration of the statute of limitations.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard of review to the trial court's decision to grant or deny a motion to dismiss. McClain v. Clark , 992 So.2d 636, 637 (Miss. 2008). This Court also reviews matters of statutory interpretation de novo. Chandler v. McKee , 202 So.3d 1269, 1271 (Miss. 2016).

DISCUSSION

I. Whether Greenwood's service of process on Central through the Insurance Commissioner was proper.

¶ 9. "The existence of personal jurisdiction ... depends on the presence of reasonable notice to the defendant that an action has been brought." Kulko v. Cal. Superior Court , 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132, 140 (1978). "Service of process is simply the physical means by which [personal] jurisdiction is asserted." DeMelo v. Toche Marine, Inc. , 711 F.2d 1260, 1264 (5th Cir. 1983). Rule 4 of the Mississippi Rules of Civil Procedure provides that legal process may be served on a domestic corporation like Central "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Miss. R. Civ. P. 4(d)(4) (emphasis added). Such delivery may be accomplished by process server, by sheriff, or by first-class mail. See Miss. R. Civ. P. 4(c)(1)-(3). "[I]t must appear that any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process...." Broadcast Music, Inc. v. M.T.S. Enters., Inc. , 811 F.2d 278, 281 (5th Cir. 1987) (quoting Schwarz v. Thomas , 222 F.2d 305, 308 (D.C. Cir. 1955) ).

¶ 10. Here, it is undisputed that Greenwood never served process directly on an officer, managing agent, or general agent of Central. The question before us, then, is whether the Mississippi Commissioner of Insurance is an "agent authorized by appointment or by law to receive service of process" for Central. Miss. R. Civ. P. 4(d)(4). In denying Central's motion to dismiss, the trial court found that service of process on the Commissioner was proper under Section 83-21-37 of the Mississippi Code because Central "was the solicitor and deliverer of application for insurance to the Plaintiffs ...." On appeal, Central argues that the trial court's interpretation of Section 83-21-37 is erroneous.

¶ 11. Section 83-21-37 is a provision of the Unauthorized Insurers Process Law, the stated purpose of which is to provide Mississippi plaintiffs with a method of "substituted service of process" upon "insurers not authorized to do business in this state." Miss. Code Ann. § 83-21-35. (Rev. 2011). Section 83-21-37 automatically appoints the Commissioner as the agent for service of process for "unauthorized or alien" insurers that perform certain acts within this state:

(1) the issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein, (2) the solicitation of applications for such contracts , (3) the collection of premiums, membership fees, assessments, or other considerations for such contracts, or (4) any other transaction of insurance business ....

Miss. Code Ann. § 83-21-37 (Rev. 2011) (emphasis added). Service of process on the Commissioner "is of the same legal force and validity as personal service of process in this state upon such insurer." Id. Here, the trial court found that Central had performed the first two acts listed in Section 83-21-37, which authorized the Commissioner to receive service of process on Central's behalf. But for Section 83-21-37 to apply, an "unauthorized or alien insurer" must perform the actions listed above. Id. Central falls into neither of these categories.

¶ 12. Because Section 83-21-37 does not apply to Central, a domestic corporation authorized to do business in this state, we find that the trial court erred in finding that Greenwood properly effectuated service of process on Central by "service of the summons and complaint upon the Commissioner of Insurance pursuant to Section 83-21-37."

¶ 13. Greenwood essentially concedes that Section 83-21-37 has no direct application in this case, claiming that he "is not taking the position that § 83-21-37 creates the legal right to serve Central through the Commissioner of Insurance. Nevertheless, Greenwood argues that Section 83-21-37 lends persuasive support to his primary argument before the trial court, which was that Section 83-5-11 authorized the Commissioner to act as Central's agent for service of process. On appeal, Greenwood maintains his position that Section 83-5-11 authorized service of process on the Commissioner in this case, and he asks this Court to affirm the trial court's judgment on this basis.

¶ 14. The focus of Greenwood's primary argument on appeal is that the Commissioner has the statutory authority to act as the agent for service of process for any company that is subject to its supervision. Greenwood claims that this authority comes from Sections 83-5-1 and 83-5-11 of the Mississippi Code. Section 83-5-1 defines the scope of the Commissioner's authority as follows:

All indemnity or guaranty companies, all companies, including those companies defined in Section 83-41-303(n), corporations, partnerships, associations, individuals and fraternal orders, whether domestic or foreign, transacting, or to be admitted to transact, the business of insurance in this state are insurance companies within the meaning of this chapter, and shall be subject to the inspection and supervision of the commissioner.

Miss. Code Ann. § 83-5-1 (Rev. 2011). Greenwood asserts that Central transacts in the business of insurance in Mississippi because it is registered with the Commissioner and delivered insurance policies to Greenwood in Mississippi. Therefore, according to Greenwood, Central is an "insurance company" for the purposes of Title 83, Chapter 5 of the Mississippi Code.

¶ 15. Next, Section 83-5-11 sets forth the Commissioner's duties when he or she receives service of process for an insurance company:

When legal process is served upon the commissioner as attorney for an insurance company , he shall forthwith notify the company of such service by letter prepaid and directed to its secretary or, in the case of a foreign country, to its resident manager, if any, in the United States, and shall, within two (2) days after such service, forward in the same manner a copy of the process served on him to the secretary or manager or to such person as may have been previously designated by the company by written notice filed in the office of the commissioner. The failure of the commissioner to notify the company shall not affect the validity of such service but shall subject him to liability on his bond for such damages as the company shall suffer thereby. As a condition of a valid and effectual service and of the duty of the commissioner in the premises, the plaintiff in such process shall pay to the commissioner at the time of service thereof the sum of Twenty-five Dollars ($25.00), which the plaintiff shall recover as taxable costs if he prevails in his suit. The commissioner shall keep a record of all such proceedings, that shall show the day and hour of service.

Miss. Code Ann. § 83-5-11 (Rev. 2011) (emphasis added). Because Central meets the definition of an "insurance company" under Section 83-5-1, Greenwood argues that Section 83-5-11 authorizes the Commissioner to accept service of process on Central's behalf.

¶ 16. Central presents two separate arguments in response to Greenwood's position. First, Central contends that Section 83-5-11 does not apply to it because it is only an insurance agent and not an "insurance company" within the meaning of that statute. In support of this argument, Central cites Section 83-5-5 of the Mississippi Code, which appears to provide another definition of the term "insurance company":

When consistent with the context and not obviously used in a different sense, the term "company" or "insurance company," as used in this chapter, includes all corporations, associations, partnerships, or individuals engaged as principals in the business of insurance or guaranteeing the obligations of others.

Miss. Code Ann. § 83-5-5 (Rev. 2011). Central argues that it does not meet this definition of an "insurance company" because it only acts as an agent for other companies and therefore is not engaged as a principal in the insurance business.

¶ 17. Next, Central argues that Section 83-5-11 cannot be interpreted as authorizing the Commissioner to act as an agent for service of process for every company subject to its general supervisory authority under Section 83-5-1. Central claims that Section 83-5-11 governs only the Commissioner's duties when it is acting as an insurance company's agent for service of process and does not establish the circumstances under which the Commissioner may act as such an agent. Central asserts that these circumstances are set out in other provisions of Title 83. For example, Section 83-21-1 of the Mississippi Code requires all foreign insurance companies-but not domestic insurance companies-to appoint the Commissioner, in writing, as their agent for service of process in Mississippi as a condition of doing business in this state. However, Section 83-21-1 does not impose any requirements on the Commissioner after he or she is served with process. Thus, Central claims that the purpose of Section 83-5-11 is to provide instructions to the Commissioner whenever he or she is served with process pursuant to Section 83-21-1 or other similar statutes. Central posits that this statutory scheme was adopted in recognition of the fact that domestic companies are required to register an agent for service of process with the Mississippi Secretary of State; therefore, the additional statutory requirement of appointing the Commissioner as an agent for service of process is unnecessary for those companies.

¶ 18. After reviewing Section 83-5-11 in conjunction with other provisions of Title 83, we find Central's second argument to be dispositive. Regardless of whether Central qualifies as an "insurance company" within the scope of Section 83-5-1, we find that Section 83-5-11 does not authorize the Commissioner to act as an agent for service of process for any and every company operating in the insurance business in this state.

¶ 19. While Section 83-5-11 unambiguously imposes certain duties on the Commissioner whenever he or she receives service of process for an insurance company, the statute does not establish the circumstances under which the Commissioner is authorized act as an agent for service of process. This absence of a specific grant of authority in Section 83-5-11 must be viewed in conjunction with the fact that Title 83 contains at least a dozen other, more specific statutes requiring certain categories of companies to appoint the Commissioner as their agent for service of process in Mississippi. The majority of these statutes apply exclusively to nonresidents. And many of these statutes require the appointment to be made in a writing filed with the Commissioner. But critically, no provision of Title 83 requires domestic insurance producers like Central to appoint the Commissioner as their agent for service of process, nor did Greenwood present any other evidence indicating that Central made such an appointment through other means.

¶ 20. "It is a general rule in construing statutes this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The Court will then give effect to the intent of the legislature." State ex rel. Hood v. Madison Cty. ex rel. Madison Cty. Bd. of Supervisors , 873 So.2d 85, 88 (Miss. 2004). In addition, "statutes on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each." Miss. Gaming Comm'n v. Imperial Palace of Miss. , 751 So.2d 1025, 1029 (Miss. 1999). Applying these rules of construction, we find that Section 83-5-11 can be interpreted only as providing a procedure for the Commissioner to follow when he or she is acting as an agent for service of process pursuant to a more specific provision of Title 83. Greenwood's contrary interpretation-that Section 83-5-11 allows the Commissioner to act as an agent for service of process for all entities subject to its supervision-would render these more specific statutes meaningless and would result in active conflict in many cases. For instance, Section 83-31-39 requires only foreign mutual insurance companies to appoint the Commissioner as their agent for service of process. See Miss. Code Ann. § 83-31-39(c) (Rev. 2011). But under Greenwood's interpretation of Section 83-5-11, a plaintiff could initiate a lawsuit against a domestic mutual insurance company by serving process on the Commissioner, even though no statute requires domestic mutual insurance companies to appoint the Commissioner as an agent. Central's interpretation of Section 83-5-11 avoids this conflict and gives a purpose to both statutes. Accordingly, we find that Greenwood's reliance on Section 83-5-11 as the legal basis for its service of process on Central through the Commissioner is error.

¶ 21. Greenwood also argues that this Court can affirm the trial court's judgment regardless of whether the Commissioner was a valid agent for service of process because Rule 4 ultimately was satisfied in this case. Greenwood asserts that, regardless of whether the initial service of process on the Commissioner was proper, Central cannot complain of a lack of notice because it actually received a copy of the complaint and summons from the Commissioner within days after the complaint was filed.

¶ 22. We find that Greenwood's argument on this point is without merit, as the method of service on Central did not comply with Rule 4. Relying on Flagstar Bank, FSB v. Danos , 46 So.3d 298, 303 (Miss. 2010), Greenwood asserts that the only requirement of service by mail is that it "be properly addressed to the person authorized to receive process on behalf of the corporation and actually delivered to that address." Because the Commissioner forwarded a copy of the complaint and summons to Central via certified mail and Central actually received it, Greenwood argues that service of process was effective. However, this argument ignores the distinguishing fact that the defendant in Flagstar was a nonresident, while Central is a Mississippi corporation. Rule 4(c)(5) allows service of process via certified mail "on a person outside this state ...." Miss. R. Civ. P. 4(c)(5). This Court has held unequivocally that "[s]ervice of process may not be had by certified mail on an in-state defendant." Triple C Transport, Inc. v. Dickens , 870 So.2d 1195, 1198 (Miss. 2004). This error "cannot be cured by equitable or 'fairness' arguments" and amounts to "no service at all upon an in-state defendant." Id. Rule 4(c)(3)(A) requires service by mail on a resident defendant to be made by first-class mail, accompanied by two copies of a notice and acknowledgment conforming substantially to Form 1-B of the Mississippi Rules of Civil Procedure. Miss. R. Civ. P. 4(c)(3)(A). Even assuming that Greenwood could properly serve Central through an unappointed intermediary like the Commissioner, the transmission of the complaint and summons to Central via certified mail does not satisfy Rule 4.

¶ 23. Alternatively, Greenwood argues that Central waived its defense of insufficient service of process. Greenwood points out that Central "appeared in the action and defended the merits of the action," waited until three months after the complaint was filed to file its motion to dismiss, and participated in discovery. Because of this, Greenwood contends that Central waived its defense both by entering a general appearance and by participating in the litigation without timely pursuing its defense.

¶ 24. Rule 12(b) of the Mississippi Rules of Civil Procedure requires that "[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required[.]" Miss. R. Civ. P. 12(b). Certain defenses, including insufficiency of service of process, may be raised by separate motion. Miss. R. Civ. P. 12(b)(5). However, these defenses are waived if not raised either in the answer or a separate motion filed prior to or contemporaneously with the answer. Miss. R. Civ. P. 12(h)(1). See also Burleson v. Lathem , 968 So.2d 930, 934 (Miss. 2007). Here, Central raised the defense of insufficient service of process in its answer, so it did not waive this defense under Rule 12(h).

¶ 25. A defendant also can waive a defense by failing to timely and reasonably pursue it while actively participating in the litigation process. See MS Credit Ctr., Inc. v. Horton , 926 So.2d 167, 180 (Miss. 2006). Both of these elements must be present to constitute a waiver. See Id. For example, in Estate of Grimes ex rel. Grimes ex rel. Wrongful Death Beneficiaries v. Warrington , 982 So.2d 365, 370 (Miss. 2008), the defendant pleaded the defense of immunity under the Mississippi Tort Claims Act in his answer to the complaint but did not pursue that defense until five years later. During that five-year period, the case was set and reset twice for trial, experts were designated and deposed, and the defendant moved to exclude part of the plaintiff's expert's testimony. Id. Based on the defendant's undue delay in pursuing his defense and his active participation in the litigation process, this Court held that he had waived his immunity defense. Id.

¶ 26. We find that Central did not waive the defense of insufficient service of process because it did not fail reasonably to pursue its defense. Central raised the defense of insufficient service of process in its answer, and unlike the defendant in Warrington , it reasserted that defense in a separate motion and set that motion for a hearing. Central did respond to Greenwood's discovery requests while it was awaiting the hearing on its motion to dismiss, but it does not appear that Central took any other action concerning the merits of the litigation. The hearing on Central's motion to dismiss was postponed when another defendant filed a motion to transfer venue. But as soon as the venue issue was resolved, Central scheduled another hearing on its motion to dismiss. Accordingly, we do not find that Central waived its defense of insufficient service of process.

II. Whether Greenwood's complaint should be dismissed with prejudice.

¶ 27. Central maintains that Greenwood's complaint should be dismissed with prejudice because the limitations period expired without Greenwood attempting to correct its defective service of process. But because the trial court held that Greenwood had served process on Central within the 120-day time limit provided in Rule 4(h), the trial court did not consider the issue of good cause for extending the period to perfect service of process. Accordingly, we decline to consider this issue for the first time on appeal.

CONCLUSION

¶ 28. The trial court erred as a matter of law in holding that the Commissioner of Insurance was authorized to act as Central's agent for service of process. Moreover, Greenwood did not comply with the requirements of Rule 4 in serving process on Central. Accordingly, we reverse the trial court's judgment and remand this case to the trial court for consideration under Rule 4(h) of whether good cause exists to extend the period for Greenwood to perfect service on Central.

¶ 29. REVERSED AND REMANDED.

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

      An insurance producer is "a person required to be licensed under the laws of this state to sell, solicit or negotiate insurance." Miss. Code Ann. § 83-17-1(f) (Rev. 2011). The term is synonymous with an insurance agent. Miss. Code Ann. § 83-17-1(a) (Rev. 2011).

      The underlying facts giving rise to Greenwood's complaint are not relevant to the issues on appeal here but can be found in this Court's opinion in Greenwood v. Mesa Underwriters Specialty Insurance Co. , 179 So.3d 1082, 1087 (Miss. 2015).

      On the other hand, the record shows that Greenwood did personally serve the registered agent of another defendant in the case, Dixie Specialty Insurers, Inc. Like Central, Dixie is a Mississippi corporation.

      "This Court routinely looks to federal case law for guidance in construing the Mississippi Rules of Civil Procedure because they were patterned after the Federal Rules of Civil Procedure." MS Comp Choice, SIF v. Clark, Scott & Streetman , 981 So.2d 955, 959 (Miss. 2008).

      "No foreign insurance, indemnity or guaranty company or other insurer shall be admitted and authorized to do business in this state until: ... It shall, by a duly executed instrument filed in his office, constitute and appoint the Commissioner of Insurance, and his successor, its true and lawful attorney, upon whom all process in any action or legal proceeding against it may be served, and therein shall agree that any process against it which may be served upon its attorney shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state. The service of such process shall be made by leaving a copy of the same in the hands or office of the commissioner. Copies of such instrument certified by the commissioner shall be deemed sufficient evidence thereof, and service upon such attorney shall be deemed sufficient service upon the principal." Miss. Code Ann. § 83-21-1(c) (Supp. 2017).

      See Miss. Code Ann. § 83-6-24(7) (Supp. 2017) (nonresidents who violate the statutory requirements for acquiring any voting security of a domestic insurer); Miss. Code Ann. § 83-7-205(8) (Rev. 2011) (nonresident applicants for a license to operate as a viatical settlement provider, viatical settlement representative, or viatical settlement broker); Miss. Code Ann. § 83-11-219(g) (Rev. 2011) (applicants for a certificate of authority as an automobile club); Miss. Code Ann. § 83-19-151(e)(i)(4) (Rev. 2011) (insurers assuming reinsurance from another insurer); Miss. Code Ann. § 83-19-205(4)(b) (Rev. 2011) (nonresident applicants for a reinsurance intermediary license); Miss. Code Ann. § 83-21-1(c) (Supp. 2017) (foreign insurance companies); Miss. Code Ann. § 83-21-29 (Rev. 2011) (nonadmitted insurers); Miss. Code Ann. § 83-21-37 (Rev. 2011) (alien or unauthorized insurers who commit certain acts in Mississippi); Miss. Code Ann. § 83-29-31 (Rev. 2011) (fraternal societies); Miss. Code Ann. § 83-31-39(c) (Rev. 2011) (foreign mutual insurance companies); Miss. Code Ann. § 83-33-7 (Supp. 2017) (reciprocal insurers); Miss. Code Ann. § 83-37-7(c) (Rev. 2011) (foreign corporations organized to do business as burial associations); Miss. Code Ann. § 83-41-305(3)(i) (Rev. 2011) (nonresident applicants for a certificate of authority to establish a health maintenance organization); Miss. Code Ann. § 83-55-7(a)(iii) (Rev. 2011) (foreign risk retention groups seeking to do business in Mississippi).

      See Miss. Code Ann. § 83-6-24(7) (Supp. 2017); Miss. Code Ann. § 83-7-205(8) (Rev. 2011); Miss. Code Ann. § 83-19-205(4)(b) (Rev. 2011); Miss. Code Ann. § 83-21-1(c) (Supp. 2017); Miss. Code Ann. § 83-31-39(c) (Rev. 2011); Miss. Code Ann. § 83-37-7(c) (Rev. 2011); Miss. Code Ann. § 83-41-305(3)(i) (Rev. 2011); Miss. Code Ann. § 83-55-7(a)(iii) (Rev. 2011).

      See Miss. Code Ann. § 83-7-205(8) (Rev. 2011); Miss. Code Ann. § 83-11-219(g) (Rev. 2011); Miss. Code Ann. § 83-21-1(c) (Supp. 2017); Miss. Code Ann. § 83-29-31 (Rev. 2011); Miss. Code Ann. § 83-33-7 (Supp. 2017) ; Miss. Code Ann. § 83-37-7(c) (Rev. 2011); Miss. Code Ann. § 83-41-305(3)(i) (Rev. 2011); Miss. Code Ann. § 83-55-7(a)(iii) (Rev. 2011).

      In its reply brief, Central claims that, "[a]s part of the ability to operate within the state of Mississippi, an insurance company must designate the Mississippi Commissioner of Insurance as an additional agent for service of process." Central then points to the National Association of Insurance Commissioners' Uniform Consent to Service of Process Form, which is available on the Mississippi Insurance Department's website. Greenwood did not present any evidence indicating that Central executed such a form as part of its licensing process.

      The Advisory Committee Note to Rule 4 confirms that "[c]ertified mail service ... is limited to persons outside the state." Miss. R. Civ. P. 4 Advisory Comm. Note.

      These discovery responses are listed on the trial court docket but do not otherwise appear in the record on appeal.

      See Miss. R. Civ. P. 4(h) ("If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed without prejudice upon the court's own initiative with notice to such party or upon motion.").


author: BEAM, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

text:
    April HORTON, as Administrator and ON BEHALF OF the ESTATE OF Emmanuel ERVES, and Wrongful Death Beneficiaries of Emmanuel Erves v. CITY OF VICKSBURG
    NO. 2016-IA-01595-SCT
    Supreme Court of Mississippi.
    May 31, 2018
    ATTORNEYS FOR APPELLANT: RATOYA JANAE GILMER, CRYSTAL WISE MARTIN, SUZANNE GRIGGINS KEYS, JACKSON
    ATTORNEYS FOR APPELLEE: JOHN MICHAEL COLEMAN, JACKSON, KATELYN ADELE RILEY, BROOKHAVEN
    EN BANC.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This matter comes before the Court on Interlocutory Appeal from the Warren County Circuit Court's entry of summary judgment in favor of the Appellee, City of Vicksburg. April Horton-the estate administratrix for decedent Emmanuel Erves-appeals the circuit court's decision, arguing that the court erred in finding that the City is entitled to immunity under the Mississippi Tort Claims Act (MTCA). However, because Horton's claims against the City of Vicksburg do not support a private cause of action, we fail to reach the merits of her MTCA-immunity arguments. Finding that Horton cannot establish that the City breached any discernable duty owed to the decedent, we affirm the circuit court's decision.

FACTS

¶ 2. A ninety-eight-year-old home sits at 819 Walnut Street in Vicksburg, Mississippi. Located within the Vicksburg Historic District, this single-family dwelling was converted to a "rooming house" by Malcolm and Rose Carson in early 2000, and then sublet to various tenants throughout the last decade. One of those tenants-Emmanuel Erves-rented a room from the Carsons for several years. On February 24, 2014, Erves tumbled down the home's exterior concrete stairs and died as a result of the injuries he sustained.

¶ 3. Estate administratrix for Erves April Horton filed a complaint in the Warren County Circuit Court alleging negligence by the Carsons and MM & R Land Investments for their failure to provide a reasonably safe premises, failure to provide adequate security, and failure to warn of a dangerous condition. Horton claimed that the condition and configuration of the stairs where Erves fell, along with the absence of a mandatory handrail, violated the city's housing code. She argued that, because of these violations, Erves was unable to regain his balance or break his fall, which ultimately resulted in fatal injuries.

¶ 4. One year later, Horton amended her complaint to include the City of Vicksburg and City Code Inspector Benjie Thomas as defendants in the action. Claiming that Thomas and the City breached their duty to inspect the property adequately, and that the City individually failed to provide reasonable supervision of Thomas in his duties, Horton argued that both parties should have known that the home's exterior steps were not up to code, posing an unreasonable risk of harm to the public.

¶ 5. After a year of discovery and procedural delay, the City filed a motion for summary judgment with the circuit court. Arguing that property-code enforcement is a discretionary function under the International Residential Code (IRC) and the International Property Maintenance Code (IPMC), the City asserted its immunity under the MTCA as a defense to all of Horton's claims. The City then argued that Horton failed to state a cognizable claim under which she could support her prima facie case for negligence. Claiming that the City did not owe Erves a duty related to his tenancy in a private residence, Vicksburg argued that, without such a duty, no claim for negligence could be maintained.

¶ 6. Following a hearing on the matter, the Warren County Circuit Court found that Horton had failed to prove that the City's inaction breached a duty and granted summary judgment in favor of the City. Citing Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014), the court found that the defendant's enforcement of the property code constituted a discretionary function under the MTCA, precluding Horton from recovering damages from the defendant. The court recognized that the application of MTCA immunity "is a question of law and, therefore, is a proper matter for summary judgment." It then determined that Horton had failed to show that the City was bound to any other ordinance or regulation requiring it to "force a property owner to install a handrail on the exterior steps of a building ... over fifty years old and located within the City's historical district." Ultimately, the trial court determined that the City's enforcement of the code was discretionary as it applied to homes in the historical district, granting the City immunity under the MTCA.

¶ 7. On appeal, Horton argues that the lower court mischaracterized this Court's holding in Brantley and ignored the Court's holding in Mississippi Transportation Commission v. Adams ex rel. Adams , 197 So.3d 406 (Miss. 2016). She claims that the trial court's misguided reliance on this Court's standard resulted in an erroneous conclusion. It is from this claim of error that Horton appeals.

STANDARD OF REVIEW

¶ 8. This Court conducts a de novo review of a trial court's application of the Mississippi Tort Claims Act as well as of that court's determination of a motion for summary judgment. Doe v. Rankin Cty. Sch. Dist. , 189 So.3d 616, 619 (Miss. 2015). Summary judgment is appropriate when the record before the Court shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). When presented with such a judgment, the Court considers all the available evidence "in the light most favorable to the non-moving party." Boroujerdi v. City of Starkville , 158 So.3d 1106, 1109 (Miss. 2015) (quoting M.R.C.P. 56(e) ). However, that party also must "set forth specific facts showing that there is a genuine issue for trial" and cannot simply "rest upon the mere allegations or denials of his pleadings." Id. Furthermore, "we must affirm the grant of summary judgment '[i]f any ground raised and argued below will support the lower court's decision.' " Crider v. DeSoto Cty. Convention and Visitors Bureau , 201 So.3d 1063, 1070 (Miss. 2016) (citing Wilbourn v. Stennett, Wilkinson & Ward , 687 So.2d 1205, 1214 (Miss. 1996) ).

ANALYSIS

Whether the circuit court erred in granting the City of Vicksburg's Motion for Summary Judgment.

¶ 9. In its order granting summary judgment, the circuit court determined that the City's historic-building provision (found in IPMC Section 102.6) provides the City of Vicksburg the authority to enforce the property maintenance code in the historic district at its discretion. Initially, the court agreed that the City's choice to adopt the code created a duty to inspect all private property within the city and to enforce the IPMC provisions. However, because the Section 102.6 exemption limits the only ordinance Horton identified as requiring the City's inspection and regulation of buildings located within the historic district, the court then determined that Horton had failed to prove that the City and the inspector breached any ministerial duty owed to Erves as a tenant of the historic home. Finding the duties at issue to be discretionary, the court granted the City's motion.

¶ 10. The circuit court's order cited IPMC Sections 102.6 and 104.1, interpreting their language as creating discretion for the execution of the inspector's duties and the City's protection from liability for Erves's injuries. The court referenced Section 104.1 as providing the inspector with discretion in interpreting and applying the provisions of the code. Noting this discretion, the court found that the inspector's actions aligned with Section 102.6, where he judged the "designated historic building" to be safe and in the interest of public health, safety, and welfare.

¶ 11. Horton argues that this ruling erroneously interprets Brantley , fails to apply Adams , and accordingly should be reversed. However, we need not address the applicability of these cases or the MTCA on appeal. While the court appropriately entered summary judgment in favor of the City, its analysis of Brantley and its progeny are of no moment. Critical to Horton's appeal is not whether the immunity provided for in the MTCA prevents her recovery, but whether the underlying facts of her complaint support a private cause of action against the City and its employees. As discretionary-function immunity was not the only ground considered by the court under the summary-judgment motion, we may consider any contested issues of fact identified as material. Wilbourn v. Stennett, Wilkinson & Ward , 687 So.2d at 1214. To that end, we will affirm the lower court's entry of summary judgment "[i]f any ground raised and argued below will support the lower court's decision." Id.

¶ 12. Throughout the matter, Horton has maintained that when the City adopted the property code via ordinance, the IPMC became a binding directive, with no room permitted for deviation, unless expressly provided. Citing IPMC Section 102.6, Horton describes the limited instance of discretion which allows an inspector to determine whether a historic building is safe and whether any issues with the building require compliance with the code. Explaining that this section applies only to those buildings within the city which are deemed historic, Horton asserts that the court erroneously applied this exception to the rooming house because it has not received designation as a historic building . Rather, it merely sits in a historical district. She argues that, as a result, the house still must comply with all directives in the code, rendering the City's failure to ensure that the home was equipped with an exterior handrail a breach of its duty to the decedent.

¶ 13. It is well-settled that "[t]he MTCA provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit." Stewart ex rel. Womack v. City of Jackson , 804 So.2d 1041, 1046 (Miss. 2002) (citing L.W. v. McComb Separate Mun. Sch. Dist. , 754 So.2d 1136, 1138 (Miss 1999) ; Miss. Code Ann. § 11-46-7(1) (Supp. 2001) ). The Act waives "the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment." Taylor v. Delta Reg'l Med. Ctr. , 186 So.3d 384, 390 (Miss. Ct. App. 2016) (citing Miss. Code Ann. § 11-46-5 (Rev. 2012) ). Though the MTCA permits negligence actions against a governmental entity, to challenge the viability of a governmental actor's immunity under the MTCA, a plaintiff must first state a valid claim upon which relief may be granted. Id. at 391. See also Tunica Cty. v. Gray , 13 So.3d 826, 829 (Miss. 2009), holding that "a mere violation of a statute or regulation will not support a claim where no private cause of action exists." It is only after the plaintiff has established a prima facie case against the entity that the MTCA and its immunity provision will be addressed. Id. Here, we find that Horton has failed to establish such a case against the City of Vicksburg.

¶ 14. Horton's complaint and brief on appeal allege that the building code established the City's duty to inspect Carson's property and either condemn the home or note its handrail deficiency. Citing Sections 102.6 and 104.1 of the municipal building code, Horton asserts that the City had an obligation to ensure the private structure was equipped with a handrail on its exterior steps. She claims that, by not acknowledging the deficiency or requiring Carson to correct the code violation, the City failed to properly inspect and/or condemn the premises. Additionally, Horton claims the City both negligently supervised and negligently employed Code Enforcer Benjie Thomas, who likewise negligently failed to acknowledge and correct the code violations.

¶ 15. We disagree and find that Horton has failed to create a genuine issue of material fact as to an existing duty owed to the decedent and breached by the City. Under Section 102.6 of the City code, Vicksburg and its officials are not required to enforce the handrail requirement under Section 307.1 on those structures "designated as historic buildings when such buildings or structures are judged by the code official to be safe and in the public interest of health, safety, and welfare." IPMC § 102.6. In its motion for summary judgment and on appeal, the City explained that, following its formation of the Vicksburg Historical District, the Walnut Street residence was designated as part of the City's historical "green zone," a decision which substantiated the home's historical value. This designation is further supported by the Mississippi Department of Archives and History (MDAH). In its Inventory Database list, the MDAH recognizes all 805 properties located within the Historical Vicksburg District-including the 819 Walnut Street home. In light of these designations, we find that the Section 102.6 exception limits the applicability of the IPMC to the buildings and structures within the historic district.

¶ 16. Although not binding, the commentary on Section 102.6 is instructive on this point. Therein, the section allows for the "widest flexibility in enforcing the code when the building in question has historic value." IPMC § 102.6 cmt. This flexibility is not without exception, however. "The most important criterion for application of this section is that the building must be specifically classified as being of historic significance by a qualified party or agent ... after considerable scrutiny of the historical value of the building." Id. We find that the City of Vicksburg was the "qualified party or agent" that specifically classified the home and its surrounding areas to be historically significant. As a result, the City is relieved of any obligation under Section 307.1 by the exception found in Section 102.6.

¶ 17. Upon presenting a motion for summary judgment, the moving party is entitled to judgment as a matter of law when the court can find no genuine issue of material fact. M.R.C.P. 56(c). While the nonmoving party is given the benefit of every reasonable doubt ( Smith v. Sanders , 485 So.2d 1051, 1054 (Miss. 1986) ), we find that Horton failed to set forth significant probative evidence or rebuttal to show that there are indeed genuine issues for trial. Newell v. Hinton , 556 So.2d 1037, 1042 (Miss. 1990).

¶ 18. The dissent proposes that because Horton submitted two affidavits to the trial court in support of her response to the City's motion for summary judgment, the court's decision to render summary judgment was improper. Through these affidavits, the dissent finds that genuine issues of material fact exist as to whether the rooming house was a historic building under the relevant code provision. While the dissent correctly points out that these affidavits create a question as to whether any ordinance or regulation rendered an alleged duty ministerial, an analysis of the City's immunity under the MTCA is not needed in this matter. As an element of negligence, duty is a question of law, and whether a defendant breached its duty to the plaintiff is a question of fact. Griffith v. Entergy Mississippi, Inc. , 203 So.3d 579, 585 (Miss. 2016). When a plaintiff fails to prove that a duty is owed, there can be no claim for negligence. Id. Neither of the affidavits presented by Horton establishes a duty owed by the City to ensure that Carson's private rooming house complied with the handrail requirement. Therefore, because Horton did not demonstrate that the City owed the decedent a duty as it related to the Walnut Street residence, she failed to present an essential element of her prima facie claim for negligence, making summary judgment appropriate in the matter.

CONCLUSION

¶ 19. We find that, because Horton did not establish that the City of Vicksburg owed the decedent a duty to inspect or condemn the residence at 819 Walnut Street, and did not demonstrate that the City or its employees breached a duty under any adopted ordinance or regulation, she failed to present a genuine issue of material fact for the court's consideration. As a result, the trial court did not err in its ruling, and summary judgment was appropriate in this matter. We therefore affirm the circuit court's entry of summary judgment in favor of the City of Vicksburg.

¶ 20. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 21. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). The nonmoving party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Id. But this Court "must consider all of the evidence 'in the light most favorable to the non-moving party.' " Boroujerdi v. City of Starkville , 158 So.3d 1106, 1109 (Miss. 2015) (quoting Palmer v. Anderson Infirmary Benevolent Ass'n , 656 So.2d 790, 794 (Miss. 1995) ). Because I find that April Horton presented ample evidence in response to the motion for summary judgment, demonstrating genuine issues of material fact, I would reverse the judgment of the Circuit Court of Warren County and remand the case to that court for trial. Accordingly, I respectfully dissent.

¶ 22. The 2009 International Property Maintenance Code, adopted as the Property Maintenance Code of the City of Vicksburg (the Code), requires:

Every exterior and interior flight of stairs having more than four risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch, deck, ramp or other walking surface which is more than 30 inches (762 mm) above the floor or grade below shall have guards ....

(Emphasis in original.) The Code incorporates an exception, found in Section 102.6, for buildings designated as historic buildings: "The provisions of this code shall not be mandatory for existing buildings or structures designated as historic buildings when such buildings or structures are judged by the code official to be safe and in the public interest of health, safety, and welfare." (Emphasis in original.) The comment to the Code says that, while the code official enjoys "the widest flexibility in enforcing the code when the building in question has historic value," the "most important criterion for application of this section is that the building must be specifically classified as being of historic significance by a qualified party or agent." According to the Code's comment, "[u]sually, this is done by a state or local authority after considerable scrutiny of the historical value of the building."

¶ 23. Section 104.1 of the Code states that "[t]he code official is hereby authorized and directed to enforce the provisions of this code." (Emphasis in original.) The comment to Section 104.1 clarifies that "[t]he duty of the code official is to enforce the code.... In exercising this authority, however, the code official cannot set aside or ignore any provision of the code." Under the plain terms of the Code, the code official is duty-bound to enforce the Code. The only question currently before the Court is whether the exception from Section 102.6 applies.

¶ 24. The majority holds that 819 Walnut Street qualifies as an "existing building[ ]" or "structure[ ] designated as [an] historic building[ ]." But, under the plain terms of the Code, assuming that the majority's holding is correct, the City had no discretion with regard to the handrail requirement: "[t]he provisions of this code shall not be mandatory for existing buildings or structures designated as historic buildings when such buildings or structures are judged by the code official to be safe and in the public interest of health, safety, and welfare ." (Emphasis added.)

¶ 25. Horton attached to her response to the City's motion for summary judgment a letter from Benjie Thomas, a code enforcement officer for the City of Vicksburg, to Malcolm Carson, the owner of 819 Walnut Street, dated April 3, 2013, which mentioned "deficiencies/violations based on the International Property Maintenance Code." This letter informed Carson of his responsibility as the property owner to maintain his premises "in a sanitary and safe condition."

¶ 26. The letter required that Carson "[c]lean and remove all garbage, trash, rubbish and debris from entire exterior property around home[,] ... [c]ut all grass/weeds on entire exterior property around home ...." Carson also was directed to maintain all shared areas of the home, to clean/sanitize the hallway, bathrooms, and kitchen, and to make necessary repairs "to plumbing or mechanical." He further was told to repair walls in hallways and repair "any cracks/holes in sheetrock on walls an[d] ceilings" and to "[r]epair weak floor in bathroom at end of hallway." Carson was instructed to cure electrical system hazards: "[r]eplace all missing or broken wall receptacle covers" and "[i]nstall blanks in breaker box." The letter required also that Carson "[i]nstall smoke alarms in each rooming unit and hallway." Carson was given thirty days to correct the deficiencies and was informed that "[f]ailure to bring the property into compliance within the specified time may force this department to issue a citation for failure to comply ...." So it is clear that Thomas, the code official, did not in April 2013 judge 819 Walnut Street to have been "safe and in the public interest of health and welfare."

¶ 27. Also attached to Horton's response to the City's motion for summary judgment was a letter from Victor Gray-Lewis, of the City of Vicksburg Department of Community Development, to Carson which was dated February 27, 2014, three days after Erves's fall, informing Carson that "[u]pon making a site inspection[ ] at [819 Walnut Street], the dwelling unit was found to be unsafe, lacks maintenance to a serious degree, in disrepair, unsanitary, contains filth and therefore creates a serious hazard to the health and/or safety of the occupants." Accordingly, the letter continued, "the above referenced building has been condemned and determined to be unfit for human habitation" and "[t]he occupants ... shall have thirty (30) days to vacate the building ...."

¶ 28. Even if 819 Walnut Street is an "existing building[ ]" or "structure[ ] designated as [an] historic building[ ]" within the meaning of Section 102.6 of the Code, evidence in the record demonstrates that the code officials never deemed it to have been "safe and in the public interest of health and welfare." Accordingly, the code official had no discretion with regard to requiring Carson to comply with the Code's mandate that handrails be erected.

¶ 29. Nevertheless, the majority finds that Horton failed to establish that the City of Vicksburg owed "the decedent a duty to inspect or condemn the residence at 819 Walnut Street, and did not demonstrate that the City or its employees breached a duty under any adopted ordinance or regulation ...." Maj. Op. ¶ 19. The majority references deposition testimony from Thomas, who explained that the City of Vicksburg had designated 819 Walnut Street to have been an historic building: "819 is color-coded green." According to Thomas:

["]Green: Denotes a historic building or structure over 50 years old or older that is a contributing part of a district. A contributing historic structure or building is one that contributes to a district's historic significance through location, design, setting, materials, workmanship, feeling and association. Further, the loss of the structure would hurt the integrity of the streetscape." That's on the historic-it is the historic area of 819.

Thomas continues that the language he had quoted was "something from the Architectural Historical Review Board, and I believe it to be an ordinance. Section 814." Thomas declined to issue a citation to Malcolm Carson, the owner of 819 Walnut Street, because the City of Vicksburg had deemed the district historic. The majority finds that 819 Walnut Street is an historic building because Thomas opined that it was situated in the "green zone."

The majority further finds that the City of Vicksburg was a "qualified party or agent" entitled to designate historic buildings.

¶ 30. The majority also references a listing of 819 Walnut Street in a document prepared by the Mississippi Department of Archives and History entitled "Properties in Historic Vicksburg District Historic District." According to the majority, "Horton failed to set forth significant probative evidence or rebuttal to show that there are indeed genuine issues for trial," specifically with regard to the duty element of negligence. Maj. Op. ¶ 17.

¶ 31. But Horton did respond to the City's motion for summary judgment. She attached an affidavit from Johnnie Daniels, owner and operator of Metro Home Inspection, LLC, a construction manager and property inspector who formerly had worked for the City of Jackson as a building inspector, senior building inspector, and manager of inspection. Daniels opined that the Department of Archives and History listing "established that the home is located in a historical district," but that "the home itself is not deemed a historical home and Malcolm Carson is still required to maintain 819 Walnut Street in compliance with the 2009 International Property Maintenance Code." According to Daniels, the City of Vicksburg "had a duty to enforce the International Property Maintenance Code with respect to 819 Walnut Street" and "breached its duty to enforce the code at 819 Walnut Street ...." Daniels opined that "the house was cited on several occasions prior to this incident" and that "[w]hen the code official conducted these site inspections, the home should have been cited for all the deficiencies [that] includes the lack of a handrail, landing and the condition of the steps."

¶ 32. Also attached to Horton's response to the City's motion for summary judgment was an affidavit from Cynthia M. Rando, a Certified Human Factors Professional, who opined, as an expert, that [i]f there had been handrails installed on either side of the staircase it is more likely than not that Mr. Emmanuel Erves would have been able to circumvent his fall and reduce the severity of his injuries and prevent death." According to Rando, "code enforcers failed to require the property owner to abide by the International Property Maintenance Code." She continued: "Failing to have properly configurated steps, failing to have handrails and failing to enforce the Code robbed Mr. Erves of the opportunity to break his fall and avoid serious injury and death."

¶ 33. The affidavits attached to Horton's response render summary judgment improper. Horton's response to the City's motion for summary judgment, contrary to the majority's finding, does demonstrate the existence of genuine issues of material fact with regard to whether 819 Walnut Street was an "existing building[ ] or structure[ ] designated as [an] historic building[ ]." The majority is correct that the ultimate determination of the existence vel non of a duty is a question of law. See Enterprise Leasing Co.-SouthCent., Inc. v. Bardin , 8 So.3d 866, 871 (Miss. 2009) ("The allegation of a duty cannot suffice as a genuine issue of material fact in order to survive a summary judgment motion."). But in this unique case, specific fact questions underlie the determination of whether a duty exists. And the trial court, in analyzing this case under Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014), was faced not with the question of whether a duty of care was owed, but rather whether any ordinance or regulation rendered the duty ministerial.

¶ 34. The circuit court erred in holding that the City of Vicksburg was, as a matter of law, entitled to discretionary function immunity:

The plaintiff has not pointed this Court to any city ordinance or other regulation that requires the City to force a property owner to install a handrail on the exterior steps of a building that is over fifty years old and located within the City's historic district, thereby rendering the act or failure to act ministerial.

The circuit court failed to take into account Daniels's affidavit. Mississippi Code Section 21-19-25 states that "[a]ny municipality within the State of Mississippi may, in the discretion of its governing authority, adopt building codes ...." Miss. Code Ann. § 21-19-25 (Rev. 2015). The parties agree that Section 21-19-25 encompasses the "broad governmental function" referenced in Brantley , 152 So.3d at 1113. But the parties dispute the existence of a "narrower duty that may have formed the basis of the claim against the governmental entity," which we must consider "to determine whether that particular duty has been rendered discretionary or ministerial by statute or regulation." Id. Daniels's affidavit established, or at least contradicted, Thomas's deposition testimony that 819 Walnut Street was not an historic building and that, as such, the City had no discretion with regard to requiring Carson to make his property Code-compliant.

¶ 35. Accordingly, I would reverse the trial court's grant of summary judgment and remand the case for a trial on the merits.

KING, J., JOINS THIS OPINION.

      Prior to his fall, an altercation arose between Erves and another tenant. A criminal trial followed, with allegations that the other tenant pushed Erves down the stairs, causing the fall and his resulting death. The tenant was indicted for depraved-heart murder, though the jury later found him not guilty.

      Much of the delay was due to the related criminal matter and the parties' inability to depose the other tenant-the only witness to Erves's fall.

      The City of Vicksburg adopted the IPMC and the IRC in 2011.

      The provisions of this code shall not be mandatory for existing buildings or structures designated as historic buildings when such buildings or structures are judged by the code official to be safe and in the public interest of health, safety and welfare.
      IPMC § 102.6 (emphasis in original).

      The code official is hereby authorized and directed to enforce the provisions of this code. The code official shall have the authority to render interpretations of this code and adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in compliance with the intent and purpose of this code. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this code.
      IPMC § 104.1 cmt. (emphasis in original).

      Every exterior and interior flight of stairs having more than four risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch, deck, ramp, or other walking surface which is more than 30 inches (762 mm) above the floor or grade below shall have guards.
      IPMC § 307.1.

      In his deposition, city employee Benjie Thomas referenced an ordinance from the City's Architecture Review Board and explained that, during the Historical District's creation, the City used its judgment to determine which areas of Vicksburg were historically valuable. In doing so, the City designated the rooming house as a historical building. Located within the city's "green zone," the City recognized the historical significance of Walnut Street and its buildings, identifying the structures as being "50 years or older [that are] contributing part[s] of a district. A contributing historical structure or building is one that contributes to a district's historic significance through location, design, setting, materials, workmanship, feeling, and association. Furthermore, the loss of the structure would hurt the integrity of the street scape." The City argues that its decision to include 819 Walnut Street and its neighboring structures within the historical district was one made earnestly, through contemplation of the area's historical importance and its relation to the overall Vicksburg Historic District master plan. By evaluating such characteristics, the City found that the area and its structures favorably impact the historical quality of the district as a whole.

      "The Historic Resources Inventory database (HRI) is a compendium of information about Mississippi's landmarks and architecture." MDAH Historical Resources Inventory Database, https://www.apps.mdah.ms.gov/Public/search.aspx (last visited May 29, 2018).

      It is of note that the City of Vicksburg and the other defendants did not make this document, whatever it may be, a part of the appellate record.