author: ISHEE, J.,

text:
    Paul G. SMITH, Appellant v. CAMPUS EDGE OF HATTIESBURG, LLC and Hattiesburg Associates Owner, LLC, Appellees.
    No. 2008-CA-02098-COA.
    Court of Appeals of Mississippi.
    March 23, 2010.

      William L. Ducker, Purvis, attorney for appellant.
    Vick K. Smith, A. Kelly Sessoms, III, Pascagoula, William Heath, Hillman Bradley, Robert Sanders, Jr., attorneys for ap-pellees.
    Before KING, C.J., BARNES, ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. The Circuit Court of Lamar County granted summary judgment in favor of Campus Edge of Hattiesburg, LLC (Campus Edge) and Hattiesburg Associates Owner, LLC (Associates). The circuit court found that there was no negligence by either defendant. Furthermore, the circuit court found that, even if there was negligence, Paul Smith had failed to present any competent evidence of damages suffered as a result. Aggrieved, Smith files the present appeal and asserts the following issues:

I. Whether Associates’ motion for summary judgment was barred by res judicata;
II. Whether the circuit court erred in granting summary judgment for Campus Edge and Associates when a genuine issue of material fact existed; and
III. Whether the circuit court erred in considering the issue of damages in granting summary judgment.

Finding the second and third contentions of error meritorious as they relate to Campus Edge, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

¶2. Smith owned land in Hattiesburg, Mississippi, on which four duplexes were located that he rented. He later purchased another piece of property that is adjacent to both Smith’s previously-owned property and the adjacent property of Terra Firma, Inc. (Terra Firma). Terra Fir-ma is the predecessor-in-title to the property next to Smith’s that was owned by Campus Edge and later by Associates. Smith planned to build duplexes on that property, which is the subject of this lawsuit.

¶ 3. Previously, there had been a trailer park located partly on Smith’s property and partly on the adjacent property owned by Terra Firma. According to Smith, Terra Firma broke up the old concrete trailer pads and arranged them on its property in a manner that created a flooding problem on Smith’s adjacent property. After Smith filed a grievance with the City of Hattiesburg, he and Terra Firma reached an agreement concerning drainage across his property. The agreement was memorialized in a contract titled “BOUNDARY, DRAINAGE LINE AND TEMPORARY CONSTRUCTION AND GRADING EASEMENT AGREEMENT.” In the agreement, Terra Firma agreed to install a drainage line across Smith’s property and to secure and provide performance of the grade and dirt work necessary to install the drainage line. Smith and Terra Firma agreed that it was their intent to resolve all disputes and concerns between the parties, and the contract provided that its provisions and obligations were “binding upon the heirs, administrators, executors, assigns and successors in title of the parties hereto.”

¶ 4. Terra Firma later sold its property to Campus Edge, which built an apartment complex on the property. According to Smith, during construction of the apartments, Campus Edge constructed what Smith refers to as a dam or berm on the line between Smith’s property and Campus Edge’s property. Smith complained that the berm caused water to flood his adjacent property. He also complained that Associates allowed the problem to persist after it purchased the property from Campus Edge.

¶ 5. Smith filed a complaint in the circuit court alleging breach of contract by Terra Firma, Campus Edge, and Associates; and Smith also asserted claims of negligence against Campus Edge and Associates. The circuit court granted summary judgment in favor of Terra Firma on Smith’s breach-of-contract claim. The circuit court later dismissed the breach-of-contract claims asserted against Campus Edge and Associates to the extent that those claims which arose from the alleged breach of contract by Terra Firma. The circuit court refused to grant Campus Edge’s and Associates’s motions for summary judgment on the negligence claims, and the court transferred the case to the Chancery Court of Lamar County on the court’s own motion.

¶ 6. In chancery court, Smith filed a second amended complaint. In his amended complaint, Smith removed Terra Firma as a defendant and withdrew his breach-of-contract claims against Campus Edge and Associates. In response, Associates filed another motion for summary judgment, which the chancery court denied. Following a motion by Smith challenging the chancery court’s jurisdiction, the case was transferred by an agreed order back to circuit court. Once again in circuit court, Campus Edge and Associates each filed new motions for summary judgment. The circuit court granted each defendant’s motion, finding that the deposition testimony of Benny Sellers, the director of public services and engineering for the City of Hattiesburg, demonstrated that there was no negligence by either. The court further found that Smith had failed to produce “competent evidence of any damages which were proximately caused or contributed to by any alleged acts of negligence on the part of either defendant.” It is from this judgment that Smith appeals.

STANDARD OF REVIEW

¶ 7. This Court reviews a trial court’s ruling on a motion for summary judgment under a de novo standard. Albert v. Scott’s Truck Plaza, Inc., 978 So.2d 1264, 1266 (¶ 5) (Miss.2008) (citation omitted). The party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists. Id. “The non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial.” Id. This Court will examine “all the evidentia-ry matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits,” and we will do so in a light most favorable to the non-moving party. Id. If there exists a genuine issue of material fact, then summary judgment is not appropriate. Id.

DISCUSSION

I. Multiple Motions for Summary Judgment

¶ 8. In Smith’s first allegation of error, he takes issue with the circuit court’s decision to grant summary judgment after the chancery court had denied summary judgment based on the same amended complaint. Smith argues that Associates should have been estopped by the principle of res judicata from filing a second motion for summary judgment.

¶ 9. Contrary to Smith’s claim is the supreme court’s previous holding that: “An order denying summary judgment is neither final nor binding upon the court or successor courts.” Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 104 (¶ 25) (Miss.2008) (quoting Mauck v. Columbus Hotel Co., 741 So.2d 259, 268 (¶ 29) (Miss.1999)). Holland dealt with a successor trial judge’s decision to reconsider an order denying summary judgment. Id. at 103 (¶24). In upholding the successor trial judge’s decision to grant summary judgment, the supreme court went on to state that:

Moreover, “at the point of final decision on the merits the trial judge was duty bound to apply the law to the record then before the court, regardless of any prior ruling denying summary judgment.” In other words, the law-of-the-case doctrine, wherein a successor judge is precluded from correcting errors of law made by the predecessor judge or from revising the predecessor judge’s order or judgment on its merits, has no applicability where the order or judgment is not of a final character.

Id. at 104 (¶ 25) (internal citation omitted). Smith cites to the test that the supreme court used to determine whether a judgment is final and, therefore, subject to res judicata:

Generally, four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made.

Anderson v. LaVere, 895 So.2d 828, 832 (¶ 10) (Miss.2004) (quoting Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982)). However, “[i]n addition to these four identities, res judicata applies only to judgments which are final.” Id. at 833 (¶ 10) (citing In re T.L.C., 566 So.2d 691, 697 (Miss.1990)).

¶ 10. A denial of a motion for summary judgment is not a final judgment; therefore, the circuit court was not bound by the doctrine of res judicata to deny Associates’ motion. Rule 56 of the Mississippi Rules of Civil Procedure does not limit the number of motions for summary judgment that a party may file. Instead, it states that “[a] party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” M.R.C.P. 56(b). We find no error with the circuit court considering Associates’ motion for summary judgment. This issue is without merit.

II. Evidence of Damages

¶ 11. Next, Smith takes issue with the circuit court’s consideration of evidence of damages by Associates at the summary-judgment stage of the proceedings. Smith argues that it was improper to grant summary judgment on the issue of damages and that it is for the jury to determine the amount of damages.

¶ 12. A claim of negligence requires the plaintiff to “prove by a preponderance of the evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury.” Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1019 (¶ 14) (Miss.2004). “In order to survive a motion for summary judgment in a negligence action[,] the plaintiff must put on evidence showing that the defendant breached a duty of care and that [the] breach proximately caused his injury.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 797 (Miss.1995). Therefore, in order for Smith’s claim to survive a motion for summary judgment, he needed to “set forth specific facts sufficient to establish the existence of each element of negligence-duty, breach, causation, and damages.” Albert, 978 So.2d at 1266 (¶ 6) (citing Simpson v. Boyd, 880 So.2d 1047, 1050 (¶¶ 12-13) (Miss.2004)).

¶ 13. We find no error with the circuit court’s consideration of whether Smith put on competent evidence of damages that were “proximately caused or contributed to” by the alleged negligence of Associates. However, we do find error with the circuit court’s consideration of whether Smith put on competent evidence of damages that were “proximately caused or contributed to” by the alleged negligence of Campus Edge. To withstand summary judgment, Smith needed to show that there was a genuine issue of material fact as to whether Smith actually suffered any injury and whether that injury was proximately caused by Campus Edge or Associates. Our discussion as to whether Smith met that requirement will be included below, in the discussion of whether the circuit court properly granted summary judgment. The circuit court applied the correct standard in considering damages and proximate cause for Associates, but the court erred in its application of the standard for Campus Edge.

III. Summary Judgment

¶ 14. Lastly, Smith argues that there existed genuine issues of material fact; therefore, the circuit court erred in granting summary judgment. In support of his argument, Smith points to his own testimony about the damages he sustained and also to the two affidavits that he attached to his response to the motion for summary judgment.

¶ 15. To survive summary judgment, the non-moving party is required to “produce specific facts showing that there is a genuine material issue for trial.” Luvene v. Waldrup, 903 So.2d 745, 748 (¶ 10) (Miss.2005) (citation omitted). “The non-moving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Id. (citation omitted).

¶ 16. Generally, proximate cause is an issue for the jury to decide; however, “the non-moving party must present evidence that would allow a jury to find that the breach proximately caused the injury at issue.” Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 409-10 (¶ 48) (Miss.Ct.App.2007). In the present case, the circuit court held that Smith presented no evidence of an injury he sustained that was proximately caused by either Campus Edge’s or Associates’ breach of a duty owed to Smith. We find that this ruling is correct as it relates to Associates. However, because Campus Edge constructed the dam/berm that Smith alleges caused water to flood onto his adjacent property, we find that there is evidence that would allow a jury to find that Campus Edge breached the duty it owed to Smith.

¶ 17. Sellers, the director of public services and engineering for the City of Hat-tiesburg, testified at his deposition that, prior to the approval of Campus Edge’s construction plans, Campus Edge was required to construct a gutter along the edge of its property. According to Sellers, the gutter was installed, and prevented water from running off Campus Edge’s property onto Smith’s property. Sellers concluded that Smith’s property drained better after the work than it had before, and he said that any water draining onto Smith’s property was a result of water coming off the natural slope of the land that already existed. Before Smith could have the duplexes on the property, he would have had to raise the fill dirt or adjust some grades of the land. Sellers stated that the drainage system rerouted water around Smith’s property, thereby saving him the expense of installing culverts across his property.

¶ 18. Smith presented two affidavits to support his position. One affidavit that Smith submitted was from Raymond Dear-man, who was described as a professional engineer. In his affidavit, Dearman stated the following:

I viewed the site wherein [Smith’s] lot is continually being flooded by heavy rains coming off the berm between himself and the adjacent apartment complex formerly known as Campus Edge and how owned by [Associates], The work that was previously done did not correct the problem[,] and the embankment, which the apartment complex has placed on the property line between [Associates] and [Smith], only serves to worsen the flooding problem, which already existed.

The other affidavit was from Charles Car-ley, a general contractor and Smith’s friend. Carley also offered his opinion on Smith’s flooding problem:

I have viewed the property in question owned by [Smith] on several occasions, both before the subject drain was installed and after, and I am aware of the ponding effect that occurs in [Smith’s] property each and every time we get a significant rain. When the apartments were built, a dam was established between [Smith] and what was originally done by Tom Anderson of Terra Firma and [Campus Edge], now [Associates], As a general contractor, I can say with certainty that [Smith] cannot develop his property until a certain amount of grading, leveling[,] and at least another drain is placed on the subject property. The work that has been done is not sufficient.

¶ 19. The affidavits of Dearman and Carley differ significantly from the testimony of Sellers. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Gorman-Rupp Co. v. Hall, 908 So.2d 749, 753-54 (¶ 14) (Miss.2005). Therefore, Dearman’s and Carleas affidavits both raise a genuine question of fact as it relates to Campus Edge.

¶ 20. In the present case, we agree with the circuit court that Smith has not produced competent evidence to show that the injury of which he complains — the ponding or flooding of his property — was proximately caused by a breach of a duty owed to Smith by Associates. However, the circuit court did err in granting summary judgment in favor of Campus Edge.

¶ 21. Therefore, we reverse and remand this case for further proceedings consistent with this opinion on the issue of summary judgment granted in favor of Campus Edge. The circuit court’s judgment is otherwise affirmed.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE CAMPUS EDGE OF HATTIESBURG, LLC.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . Further references to the property or Smith's property will be to this undeveloped property on which Smith planned to build the duplexes.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Vincent Carnell HUDSON a/k/a Slim, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02016-COA.
    Court of Appeals of Mississippi.
    Feb. 10, 2009.
    Rehearing Denied Aug. 4, 2009.

      Leslie S. Lee, Jackson, Ronald Stephen Wright, Phillip Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Vincent Carnell Hudson was convicted of possession of less than 0.10 gram of cocaine in violation of Mississippi Code Annotated section 41 — 29—139(c)(1)(A) (Rev. 2005). Because Hudson was found to be a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007), the Winston County Circuit Court sentenced Hudson to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole. Hudson filed an unsuccessful post-trial motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Aggrieved, Hudson appeals and claims the evidence against him was insufficient to convict him. Additionally, Hudson claims his sentence is cruel and unusual. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 4:00 p.m. on February 6, 2007, Hudson and his brother, Hillute Hudson (Hillute), were traveling on a county road near Louisville, Mississippi. Hudson was a passenger in Hillute’s car. Officer Patrick Estes with the Louisville Police Department stopped Hillute for speeding. Hillute pulled over and got out of his car. Hillute attempted to walk toward Officer Estes, but Officer Estes told Hillute to return to his car. Meanwhile, Officer Estes noticed Hudson moving in the passenger’s seat.

¶ 3. Officer Estes ran a background check on Hillute. That background check revealed that Hillute had a suspended driver’s license and an outstanding warrant for his arrest. As Officer Estes sat in his patrol car writing citations, Officer Estes noticed that Hudson “kept looking back toward [his] position and at one time reached back in the back seat of the car that he was riding in.”

¶ 4. Officer Estes walked back to Hil-lute’s car and informed Hillute that he was under arrest for driving with a suspended license. Officer Estes also informed Hil-lute that there was an active warrant for his arrest. When Officer Estes searched Hillute, he found marijuana in a cigarette package.

¶ 5. After he secured Hillute, Officer Estes asked Hudson, who had an open container of alcohol, to step out of the car, placed him in handcuffs, and secured him in the patrol car. Officer Estes searched Hillute’s car and found a bag in the back seat. That bag was in the vicinity of the area that Officer Estes saw Hudson reach. Upon closer inspection, Officer Estes found that the bag contained crack cocaine, methylenedioxymethamphetamine (colloquially known as “eestacy”), and marijuana.

¶ 6. Hudson was taken to the Winston County Jail, and his clothes were seized. The Mississippi Crime Laboratory tested Hudson’s clothing and later reported that “trace” amounts of cocaine were found on Hudson’s clothes.

¶ 7. On April 24, 2007, Hudson was indicted on four counts of drug possession. Specifically, Hudson was charged with (1) possession of cocaine in an amount greater than ten grams, (2) possession of eight dosage units of ecstacy, (3) possession of less than thirty grams of marijuana, and (4) possession of less than 0.10 gram of cocaine. Hudson pled “not guilty” and later went to trial on November 1, 2007.

¶ 8. The jury found Hudson not guilty of the first three charges of the indictment. However, the jury found Hudson guilty of possession of less than 0.10 gram of cocaine. The prosecution then presented evidence that Hudson was a habitual offender pursuant to Mississippi Code Annotated section 99-19-83. Accordingly, the circuit court sentenced Hudson to life imprisonment in the custody of the MDOC without eligibility for parole. Hudson filed an unsuccessful post-trial motion for a JNOV or, alternatively, for a new trial. Aggrieved, Hudson appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 9. Hudson claims the evidence was insufficient to convict him. In reviewing the sufficiency of evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Gray v. State, 926 So.2d 961, 968(¶ 15) (Miss.Ct.App.2006). This Court will reverse the circuit court’s decision to uphold a jury’s verdict only if we find that the circuit court abused its discretion. Id.

¶ 10. Hudson notes that pursuant to section 41-29-139(c)(l)(A) he could only be found guilty upon a demonstration of two criteria: (1) knowledge and (2) intent. According to Hudson, because the amount of cocaine was so insignificant that it could not be seen with the naked eye, the evidence failed to demonstrate beyond a reasonable doubt that he knew he possessed cocaine. Hudson’s rationale fails because Brandy Goodman, the Mississippi Crime Laboratory forensic examiner who tested Hudson’s clothing, testified that she found cocaine in Hudson’s shirt pocket and in one pocket of Hudson’s pants. Hudson was wearing those clothes at the time Officer Estes saw him reaching in the vicinity of a bag that contained cocaine, ecstacy, and marijuana. Hudson was also wearing those clothes at the time he was arrested. Goodman also testified that although she was not able to weigh the cocaine, it was visible with the naked eye. A reasonable fact-finder could infer that Hudson possessed the cocaine found in his pockets because it was found in the clothes he was wearing when he was arrested.

¶ 11. Hudson also claims that the prosecution failed to present evidence that he was wearing his own clothing. However, the jury could have reasonably concluded that, absent evidence to the contrary, Hudson was wearing his own clothes. Finally, Hudson claims that because there was insufficient proof of the requisite knowledge element, there was also insufficient proof of the intent to possess element. Hudson’s argument relies on a finding that there was insufficient evidence of the knowledge element. As we have addressed that argument and found it lacking, there is no merit to Hudson’s argument regarding the intent element. Suffice it to say, under the circumstances, we cannot find that the circuit court abused its discretion when it denied Hudson’s motion for a JNOV.

II. SENTENCING

¶ 12. Hudson argues that his sentence is excessive. According to Hudson, “a term of life imprisonment for a trace amount of cocaine is unconstitutionally excessive under the Eighth Amendment.” As we review this issue, we are mindful that “where a sentence is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.” Gray, 926 So.2d at 979(¶ 63) (quoting Tate v. State, 912 So.2d 919, 933(1148) (Miss.2005)). “When a sentence is grossly disproportionate to the crime committed, the sentence is subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment.” Id. (internal quotations omitted).

¶ 13. A criminal sentence must not be disproportionate to the crime for which the accused is found guilty. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (overruled in part by Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). This Court has stated that the Mississippi Supreme Court, in Hoops v. State, 681 So.2d 521, 538 (Miss.1996), determined that Hannelin, 501 U.S. at 991-92, 111 S.Ct. 2680 “makes [it] clear that the three[-]prong analysis of Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross dispropor-tionality.” Williams v. State, 784 So.2d 230, 236(¶ 15) (Miss.Ct.App.2000) (internal quotations omitted). “Absent this initial showing, our appellate courts will not employ the three-prong Solem analysis.” Id. (citing Young v. State, 731 So.2d 1120, 1125(¶ 21) (Miss.1999)).

¶ 14. Hudson’s sentence of life without parole, which was mandatory under the circumstances, did not arise solely from his conviction of possession of cocaine. Hudson was sentenced to life without parole for his status as a habitual offender with a record as a violent offender. “The correct proportionality analysis for a habitual offender sentence does not consider the present offense alone, but within the habitual offender statute.” Oby v. State, 827 So.2d 731, 735(¶ 12) (Miss.Ct.App.2002). A “sentence of life without parole [is] not grossly disproportionate to a habitual offender’s crime of possession of a controlled substance.” Id. (citing Wall v. State, 718 So.2d 1107, 1114(¶30) (Miss.1998)).

¶ 15. Additionally, a proportionality analysis requires an examination of three factors: “(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.” Gray, 926 So.2d at 979(¶ 63). Hudson only addressed the first factor. When an appellant fails to address all three factors of the proportionality analysis, the appellant’s claim is procedurally barred on appeal. Id. at 979-80(¶ 64). Accordingly, we find no merit to this issue.

¶ 16. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF LESS THAN 0.10 GRAM OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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

      . Hudson had previous convictions for (1) felony shoplifting, (2) possession of heroin, (3) aggravated assault on a law enforcement officer, (4) armed robbery, and (5) felony driving under the influence.