        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01455-COA

EVELYN BARNES, BEN BARNES, AND                                          APPELLANTS
DESMOND YOUNG, A MINOR, BY AND
THROUGH ORTHIA HERRING, HIS NEXT OF
KIN

v.

CITY OF CANTON, MISSISSIPPI AND THE                                       APPELLEES
CANTON CONVENTION AND VISITORS
BUREAU

DATE OF JUDGMENT:                        09/18/2014
TRIAL JUDGE:                             HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:               MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 JANE E. TUCKER
ATTORNEYS FOR APPELLEES:                 WALKER REECE GIBSON
                                         ROBERT P. THOMPSON
                                         ANDY LOWRY
                                         CARYN L. MILNER
NATURE OF THE CASE:                      CIVIL - OTHER
TRIAL COURT DISPOSITION:                 GRANTED THE CANTON CONVENTION
                                         AND VISITORS BUREAU’S MOTION TO
                                         DISMISS AND GRANTED THE CITY OF
                                         CANTON’S MOTION FOR SUMMARY
                                         JUDGMENT
DISPOSITION:                             AFFIRMED - 05/03/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

      LEE, C.J., FOR THE COURT:

                      FACTS AND PROCEDURAL HISTORY

¶1.   On December 23, 2011, Evelyn Barnes and her grandson, Desmond Young, were

riding a small train around the town square in Canton, Mississippi, as part of a Christmas
celebration when an accident occurred, injuring Barnes and Young. On December 17, 2012,

Barnes and her husband, Ben Barnes, filed suit in the Madison County Circuit Court against

the Canton Convention and Visitors Bureau (the Bureau) and the City of Canton (the City)

alleging negligence. Young, by and through Orthia Herring, also filed a similar suit against

the Bureau and the City. The two lawsuits were eventually consolidated.

¶2.    Prior to consolidation, the Bureau filed separate motions to dismiss both the Barnes

lawsuit and the Young lawsuit. The City filed a motion to dismiss and/or motion for

summary judgment in both lawsuits. After a hearing regarding the Bureau’s motions to

dismiss, the trial court granted the motions, finding that the Bureau was a separate legal

entity covered by the Mississippi Tort Claims Act (MTCA) and that Barnes and Young

(collectively “Barnes”) failed to give the Bureau proper notice of the claim under Mississippi

Code Annotated section 11-46-11 (Rev. 2012). After a hearing regarding the City’s motions

to dismiss and/or motions for summary judgment, the trial court granted summary judgment

in favor of the City, finding that Barnes failed to present a question of material fact regarding

the City’s liability.

¶3.    Barnes now appeals, asserting the following issues: (1) the Bureau is not a separate

entity from the City; (2) even if the Bureau were a separate entity, the MTCA does not

automatically provide immunity; (3) the Bureau is estopped from claiming improper service

of process; (4) the driving of a train is not a discretionary function for which the City would

be immune; and (5) alternatively, the driver of the train was employed by both the City and

the Bureau.



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                                STANDARD OF REVIEW

¶4.    We review a trial court’s grant or denial of a motion to dismiss utilizing a de novo

standard of review. Kimball Glassco Residential Ctr. Inc. v. Shanks, 64 So. 3d 941, 944 (¶8)

(Miss. 2011). We also review a trial court’s grant or denial of a motion for summary

judgment under a de novo standard. Case v. Bd. of Sup’rs of Lauderdale Cty., 164 So. 3d

1043, 1045 (¶6) (Miss. Ct. App. 2014). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories[,] and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). When reviewing such a

motion, we view the evidence in the light most favorable to the party against whom the

motion has been made. Hudson v. Courtesy Motors Inc., 794 So. 2d 999, 1002 (¶7) (Miss.

2001). The opposing 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.” M.R.C.P. 56(e). However, the

Court reviews conclusions of law, including the proper application of the MTCA, de novo.

City of Jackson v. Presley, 40 So. 3d 520, 522 (¶9) (Miss. 2010).

                                       DISCUSSION

       I.     Separate Entity

       II.    Immunity Under MTCA

¶5.    As these two issues are related, we will address them together. We first address

whether the Bureau is a separate entity from the City for purposes of the MTCA. If yes, then



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we must determine if the Bureau is a political subdivision under the MTCA. If yes, then we

must determine whether a notice of claim was given to the Bureau pursuant to section 11-46-

11. Barnes argues that the Bureau is not a separate political entity but an arm of the City.

Barnes cites to Brown v. Thompson, 927 So. 2d 733 (Miss. 2006), for support. The

Mississippi Supreme Court held in Brown that a sheriff’s department is not a political

subdivision within the meaning of the MTCA and, thus, does not have a legal existence

separate from its respective county under which it can be sued. Id. at 737 (¶12). The court

held that the trial court properly dismissed the case since Rodney Brown only sued the

sheriff’s department and failed to name Bolivar County as the proper defendant. Id. The

court reviewed the structural relationship between counties and sheriff’s departments in

reaching its conclusion, focusing on the procedures for budgeting and financing sheriff’s

departments. Id. at 737-38 (¶13). The court noted that the sheriff’s department was required

to submit its budget to the county for approval, and the county “may increase or reduce said

amount as it deems necessary and proper.” Id. (quoting Miss. Code Ann. § 19-25-13 (Rev.

2012)). The court stressed that “money flows from the county, which would suggest that

judgments against the sheriff or deputies are ultimately paid out of the county treasury.” Id.

¶6.    Barnes argues that the instant case is similar to Brown because the Bureau’s budget

must be approved by the City. This is correct. However, the Bureau is funded by a tax, the

proceeds of which are deposited into a separate account, not the City’s general fund.1 This



       1
       The Bureau was created in 1989 when the Legislature passed Senate Bill 2931,
which became Local and Private Law Chapter 866. The law was subsequently amended in
1994 by House Bill 839 and became Local and Private Law Chapter 944.

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separate account is dedicated solely to the Bureau’s activities. Furthermore, the Legislature

vested the Bureau with a variety of powers, including: the purchasing and selling of real

estate and property; entering into leases; the acquisition and restoration of historic sites; the

ability to borrow money and issue promissory notes; and hiring and compensating personnel.

The Bureau pays for purchases and leases through its revenue and can keep any profits from

a sale. For these reasons, we find that Brown is distinguishable from the instant case. And

Barnes has not presented any other Mississippi cases on point to support her position. We

find that the Bureau is a separate entity from the City.

¶7.    Barnes next argues that even if the Bureau is a separate entity from the City, it is a

private entity and not a political subdivision granted immunity under the MTCA. Mississippi

Code Annotated section 11-46-1(i) (Supp. 2015) states that a political subdivision is

       any body politic or body corporate other than the state responsible for
       governmental activities only in geographic areas smaller than that of the state,
       including, but not limited to, any county, municipality, school district, charter
       school, volunteer fire department that is a chartered nonprofit corporation
       providing emergency services under contract with a county or municipality,
       community hospital as defined in Section 41-13-10, airport authority, or other
       instrumentality of the state, whether or not the body or instrumentality has the
       authority to levy taxes or to sue or be sued in its own name.

¶8.    “Body politic” has been defined as “a body incorporated by the state and charged with

the performance of a public duty, such as a . . . corporate body created for the sole purpose

of performing one or more municipal functions.” Urban Renewal Agency of Aberdeen v.

Tackett, 255 So. 2d 904, 905 (Miss. 1971). And “governmental activities” under the MTCA

“are those which are performed pursuant to the act of statute or are a matter of public

necessity.” Spencer v. Greenwood/Leflore Airport Auth., 834 So. 2d 707, 711 (¶12) (Miss.

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2003). Here, the Bureau is a political subdivision, as it was created by the Legislature to

carry out duties for the City – primarily, promoting tourism for the benefit of the City and its

citizens.

¶9.    Since we find the Bureau is a political subdivision, Barnes was required to file a

notice of claim on the Bureau. See Miss. Code Ann. § 11-46-11(1). This did not occur; thus,

we affirm the trial court’s decision to grant the Bureau’s motion to dismiss.

       III.   Improper Service of Process

       IV.    Driving a Train Is Not a Discretionary Function

¶10.   Since we find the motion to dismiss was properly granted for failing to file a notice

of claim, we decline to address these issues.

       V.     Darryl Harris Was a Dual Employee

¶11.   Lastly, Barnes contends that Harris, the driver of the train, was employed by both the

City and the Bureau. Barnes argues that the City has not established that Harris was acting

solely on behalf of the Bureau while driving the train. However, the City had produced an

affidavit from Harris indicating that he “was not carrying out any service or function for the

City of Canton” when the accident occurred. Harris stated he was hired and paid by the

Bureau. Barnes has produced no evidence to the contrary. In granting summary judgment

for the City, the trial court found that the City had shown it was not liable for the actions of

the Bureau or Harris. We agree. This issue is without merit.

¶12. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.



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     IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. GRIFFIS, P.J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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