                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-IA-02110-SCT
CITY OF JACKSON AND MICHAEL McLENDON
v.
ANNIE MAE SUTTON, RICKY SUTTON AND APRIL GIBSON

DATE OF JUDGMENT:                                12/28/1999
TRIAL JUDGE:                                     HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                       HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                        TERRY WALLACE

                                                 MICHAEL J. WOLF
ATTORNEYS FOR APPELLEES:                         MERRIDA COXWELL
                                                 CHARLES R. MULLINS
                                                 REGINA R. QUINN

                                                 HERBERT J. IRVIN
NATURE OF THE CASE:                              CIVIL - PERSONAL INJURY
DISPOSITION:                                     REVERSED AND RENDERED - 10/11/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  11/1/2001

     BEFORE PITTMAN, C.J., COBB AND DIAZ, JJ.

     PITTMAN, CHIEF JUSTICE, FOR THE COURT:

¶1. This is an interlocutory appeal by the City of Jackson and Police Officer Michael McClendon
("McClendon") regarding the denial of their motion for summary judgment where they asserted that April
Gibson ("Gibson"), Annie Mae Sutton and Ricky Sutton ("the Suttons"), the plaintiffs, had specifically
admitted in discovery that relief was not being sought under the United States Constitution or the
Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2001).

                               FACTS AND PROCEEDINGS BELOW

¶2. According to the complaint filed by the Gibson and the Suttons, Richard Allen ("Allen") consumed
several alcoholic beverages on December 23, 1996, before running his vehicle into the back of Roderick
Reed's ("Reed") automobile. Allen then left the scene of the accident telling Reed that he was going back to
Shooter's Tavern. When Officer Michael McClendon arrived at the accident site, Reed explained that Allen
had rear-ended his car and that Allen had gone to Shooter's Tavern. Reed also provided McClendon with
the license tag number of Allen's automobile which McClendon checked and determine that the plate
number was not registered. Reed and McClendon then went to Shooter's Tavern where Reed identified
Allen as the man who had "hit-and-run" his vehicle. Officer McClendon completed an accident report
stating that Allen was the cause of the accident; that Allen had no driver's license; and that his driver's
license number was identical to his social security number.
¶3. Later that day, while driving with his head lights off, Allen collided with another car, seriously injuring
Gibson and killing Barbara Sutton ("Decedent"). Allen was subsequently indicted by the Hinds County
District Attorney for the death of Barbara Sutton. Gibson and the Suttons contend in their complaint that if
McClendon had run a check of Allen's name and social security number Allen's two prior DUI convictions
and an outstanding arrest warrant would have been discovered. They also assert in their complaint that
McClendon failed to administer a sobriety test on Allen, interrogate him regarding his leaving the scene of
the accident, or seize his car.

¶4. On March 26, 1998, approximately one year and three months after the accident, Gibson and the
Suttons filed a complaint against Richard Allen in the Circuit Court of the First Judicial District of Hinds
County. The next day, Gibson and the Suttons filed an amended complaint alleging that the City of Jackson
and McClendon had violated the rights of the plaintiffs under the Mississippi Constitution. On August 21,
1998, the City of Jackson and McClendon filed their answer.

¶5. On June 18, 1999, the City of Jackson filed a motion to dismiss in accordance with M.R.C.P. 12. The
trial court subsequently denied the motion to dismiss. The City of Jackson then filed a motion for summary
judgment asserting that Gibson and the Suttons had specifically admitted in discovery that relief was not
being sought under the United States Constitution or under the Mississippi Tort Claims Act and that the Act
was the exclusive avenue by which relief could be sought. The trial court denied the motion for summary
judgment stating that Gibson and the Suttons could proceed based on claims under the Mississippi
Constitution, and it also denied the City of Jackson's motion for interlocutory appeal of the issues presented
by the motion for summary judgment.

¶6. On June 8, 2000, an order was entered by this Court granting permission to appeal an interlocutory
decision pursuant to M.R.A.P. 5 filed by the City of Jackson and Michael McClendon.

                                        STANDARD OF REVIEW

¶7. This Court has a well-established standard of review of a trial court's grant of summary judgment:

      Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as
      that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs
      a de novo standard of review of a lower court's grant or denial of summary judgment and examines all
      the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions,
      affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the
      motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party
      is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor.
      Otherwise, the motion should be denied. 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. In addition, the burden of demonstrating that no genuine issue of fact
      exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000) (quoting McCullough v. Cook, 679 So.2d 627,
630 (Miss.1996)).

                                               DISCUSSION
      I. WAS THE TRIAL COURT CORRECT IN ITS DETERMINATION THAT THE
      PLAINTIFFS COULD PURSUE RECOVERY UNDER THE MISSISSIPPI
      CONSTITUTION OR IS THE MISSISSIPPI TORT CLAIMS ACT THE EXCLUSIVE
      REMEDY FOR THE RELIEF BEING SOUGHT?

¶8. Gibson and the Suttons allege in their complaint that they were denied their state constitutional rights
without due process of law when the City of Jackson, through the actions of Officer McClendon, violated
investigatory and training procedures. They assert that this resulted in a violation of Article 3, Section 14 of
the Mississippi Constitution, the "due process clause," which states that "[n]o person shall be deprived of
life, liberty, or property except by due process of law." Gibson and the Suttons also base their claims on
Article 3, Section 24 of the Mississippi Constitution, the "remedy clause," which holds that "[a]ll courts shall
be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have
remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." The
trial court, in denying the City of Jackson's motion for summary judgment, concluded that Gibson and the
Suttons could proceed with their action under these state constitutional claims.

¶9. The City of Jackson and McClendon contend that the only path in which Gibson and the Suttons can
pursue their claim would be under the Mississippi Tort Claims Act, a route the plaintiffs expressly chose not
to follow. The City of Jackson points to Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234
(Miss. 1999), where this Court held:

      The MTCA provides the exclusive civil remedy against a governmental entity and its employees for
      acts or omissions which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Supp.1998); L.W. v.
      McComb Separate Mun. School Dist., 754 So.2d 1136, 1146, (Miss.1999). Any claim filed
      against a governmental entity and its employees must be brought under this statutory scheme. Id.

Lang, 764 So. 2d at 1236.

¶10. Statutes contained in the Act support the assertion that the Tort Claims Act is the exclusive route for
filing suit against a governmental entity and its employees. Miss. Code Ann. § 11-46-9 states that a
governmental entity and its employees acting within the course and scope of their employment shall be free
of liability for a claim based upon any of the acts or omissions enumerated therein. Miss. Code Ann. § 11-
46-7(1) details the exclusiveness of the Act, announcing:

      The remedy provided by this chapter against a governmental entity or its employee is exclusive of any
      other civil action or civil proceeding by reason of the same subject matter against the governmental
      entity or its employee or the estate of the employee for the act or omission which gave rise to the
      claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover
      damages for any injury for which immunity has been waived under this chapter shall be brought only
      under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.

¶11. While there is provision for making a claim against a governmental entity and its employees outside of
the Tort Claims Act, it is limited to declaratory actions and not intended for claims involving money
damages. Fordice v. Thomas, 649 So.2d 835, 840 (Miss. 1995). In the case sub judice Gibson and the
Suttons only seek monetary relief.

¶12. It is well settled that the Mississippi Tort Claims Act is not violative of our state constitution, and is
therefore not in conflict with Article 3, Sections 14 and 24 of the Mississippi Constitution. Barnes v.
Singing River Hosp. Sys., 733 So.2d 199 (Miss. 1999), provides an excellent synoposis regarding the
constitutionality of the Act and specifically addresses the "remedy clause" as found in Article 3 Section 24
and the "due process clause" as found in Article 3 Section 14 of the Mississippi Constitution:

      We previously addressed the constitutionality of the Mississippi Tort Claims Act under the Mississippi
      Constitution in Mohundro v. Alcorn County, 675 So.2d 848 (Miss.1996). In Mohundro, we
      pointed to our decision in Robinson v. Stewart, 655 So.2d 866, 868 (Miss.1995) (citing Wells v.
      Panola County Bd. of Educ., 645 So.2d 883 (Miss.1994); Grimes v. Pearl River Valley Water
      Supply Dist., 930 F.2d 441 (5th Cir.1991)), wherein we held that "the remedy clause is not an
      absolute guarantee of a trial and that it is the legislature's decision whether or not to address
      restrictions upon actions against government entities." Mohundro, 675 So.2d at 852. We further
      found that the Mississippi Tort Claims Act did not violate due process, because:

      A due process violation requires that the party be deprived of a protected property interest. Tucker
      v. Hinds County, 558 So.2d 869, 873 (Miss.1990). As was stated by this Court in Wells, there
      was no right to sue the State or its political subdivisions at common law. The legislature has continued
      to withhold such a right, therefore there is no property right to sue the State. Without such a property
      interest there can be no due process violation.

      Id.

Barnes, 733 So.2d at 203.

¶13. While this Court does not condone the inaction on the part of McClendon when he failed to perform
his responsibilities in dealing with Allen, this Court is left with little choice but to reverse and render because
Gibson and the Suttons failed to make a timely claim under the Mississippi Tort Claims Act. The caselaw is
clear that the Mississippi Tort Claims Act is the only route by which the plaintiffs could file suit against the
City of Jackson and Officer McClendon. Accordingly, it was error for the trial court to deny the City of
Jackson and Officer McClendon's motion for summary judgment.

                                                CONCLUSION

¶14. For the foregoing reasons, the judgment of the circuit court is reversed, and judgment is rendered in
favor of the City of Jackson and Officer McClendon.

¶15. REVERSED AND RENDERED.

      BANKS, P.J., SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. McRAE,
      P.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.
