        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-SA-00974-COA

HARRY LANE                                                                 APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                    APPELLEE
TRANSPORTATION, SOUTHERN DISTRICT

DATE OF JUDGMENT:                         06/22/2016
TRIAL JUDGE:                              HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  MICHAEL DUANE MITCHELL
                                          SAMUEL S. CREEL JR.
ATTORNEY FOR APPELLEE:                    TRACE D. MCRANEY
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                  GRANTED SUMMARY JUDGMENT FOR
                                          APPELLEE
DISPOSITION:                              AFFIRMED - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    The sole issue in this appeal is whether the plaintiff’s pre-suit notice of claim was

sufficient to satisfy the requirements of the Mississippi Tort Claims Act (MTCA),

specifically, Mississippi Code Annotated section 11-46-11(2) (Rev. 2012). The circuit court

concluded that the notice did not substantially comply with the statute’s requirements and

granted summary judgment for the Mississippi Department of Transportation (MDOT) on

that basis. For the reasons that follow, we agree and affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.   The relevant record facts can be summarized briefly. On October 2, 2015, Lane’s

attorney filed a notice of claim with MDOT that stated as follows:

      On or about October 11, 2014, as Mr. Lane was operating his motorcycle in a
      safe and prudent manner southbound on the ramp of MS 67, Mr. Lane lost
      control of his motorcycle and ran off the left side of the roadway, the
      motorcycle came to rest East of MS 67 facing east, that Mr. Lane hit a
      damaged area on the roadway causing him to lose control of his motorcycle.

      This accident was caused by the negligen[ce] for failure to properly inspect
      and maintain said roadway of [MDOT].

      That [MDOT] has acted in reckless disregard to the members of the public
      who may have been operating their vehicles southbound of the ramp of MS 67.

      That as a direct of [sic] proximate result of the aforesaid acts and failure to act
      Mr. Lane has suffered and continues to suffer damages in excess of
      $28,983.53, in personal and property damages, further regarding pain and
      suffering in the amount to be determined by the Court.

      Therefore, the undersigned intends to bring suit, pursuant to Section 11-46-1,
      et seq. against [MDOT] for alleged neglect in reckless disregard for the safety
      of the driving public on the southbound ramp of MS 67, in Forrest County,
      Mississippi.

¶3.   On January 27, 2016, Lane filed suit against MDOT in the Harrison County Circuit

Court. His complaint repeated the allegations of his notice of claim. MDOT answered and

on March 11, 2016, filed a motion for summary judgment arguing that the content of Lane’s

pre-suit notice of claim failed to satisfy the requirements of section 11-46-11. Lane

responded, MDOT replied, and the court heard oral argument on the motion. On June 23,

2016, the circuit court granted MDOT’s motion based on Lane’s failure to comply with the

requirements of section 11-46-11. Lane filed a timely notice of appeal.



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                                       DISCUSSION

¶4.    This Court applies a de novo standard of review to a grant of summary judgment and

to issues involving the interpretation and application of the MTCA. Lee v. Mem’l Hosp. at

Gulfport, 999 So. 2d 1263, 1266 (¶8) (Miss. 2008).

¶5.    At least ninety days prior to filing suit against a governmental entity, a plaintiff “must

file a notice of claim with the chief executive officer of the governmental entity.” Miss.

Code Ann. § 11-46-11(1). “Every notice of claim shall: (i) Be in writing; (ii) Be delivered

in person or by registered or certified United States mail; and (iii) Contain a short and plain

statement of the facts upon which the claim is based . . . .” Id. § 11-46-11(2)(b). The statute

expressly identifies

       seven required categories of information which must be included [in the notice
       of claim]. The seven required categories are as follows: (1) the circumstances
       which brought about the injury; (2) the extent of the injury; (3) the time and
       place the injury occurred; (4) the names of all persons known to be involved;
       (5) the amount of money damages sought; (6) the residence of the person
       making the claim at the time of the injury; and (7) the claimant’s residence at
       the time of filing the notice.

Parker v. Harrison Cty. Bd. of Supervisors, 987 So. 2d 435, 439 (¶18) (Miss. 2008) (quoting

S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d 1252, 1257-58 (¶18) (Miss. 2006)).

¶6.    “[The Supreme] Court requires ‘substantial compliance’ with the MTCA notice

provisions.” Fairley v. George Cty., 871 So. 2d 713, 716 (¶8) (Miss. 2004). “Though

substantial compliance with the notice provisions is sufficient, substantial compliance is not

the same as, nor a substitute for, non-compliance.” Id. at 717 (¶8) (quotation marks,



                                               3
alteration omitted). “The determination of substantial compliance is a legal, though fact-

sensitive, question.” Id. at (¶9) (quotation marks, alteration omitted). The defendant is

entitled to summary judgment if the plaintiff failed to comply with the MTCA’s pre-suit

notice provisions. Id. at 718 (¶15).

¶7.    In Guffy, the Supreme Court recognized that its prior opinions on the issue of

“substantial compliance” had generated “confusion.” Guffy, 930 So. 2d at 1258 (¶19). The

Court stated, “[This] confusion . . . needs to be addressed by this Court today in order to

provide direction and clarity to the courts and the bar.” Id. To that end, the Court wrote:

       The confusion has arisen . . . as to how much information is required by this
       Court under each of the seven categories . . . . As a practical example, the first
       category requires notice of the “circumstances which brought about the
       injury.” In order to comply with this requirement, the notice need not disclose
       every single fact, figure and detail, but rather the substantial details, in order
       to comply with the requirements of [section] 11-46-11(2). But, the failure to
       provide any of the seven statutorily required categories of information falls
       short of the statutory requirement and amounts to non-compliance with
       [section] 11-46-11(2). However, where some information in each of the seven
       required categories is provided, this Court must determine whether the
       information is “substantial” enough to be in compliance with the statute. If it
       is, the result is “compliance,” not “substantial compliance” with the
       requirements under [section] 11-46-11(2).

Id. at (¶20).

¶8.    Two years later, the Supreme Court unmistakably reaffirmed Guffy’s guidance to the

bench and bar. Parker, 987 So. 2d at 439-40 (¶18). Indeed, in Parker, the Supreme Court

stated: “this Court does not even reach the issue of whether a plaintiff substantially complied

with the statute if all seven categories of information are not contained in the notice letter.”



                                               4
Id. at 440 (¶19). The Supreme Court also held that Guffy’s discussion of substantial

compliance was “controlling” and “applied retroactively” to all cases awaiting trial or

pending on appeal when it was decided. Id.

¶9.    This line of cases soon took an unexpected turn. About four months after Parker

handed down, the Supreme Court stated, in a footnote, that what Guffy had trumpeted as

much-needed “direction and clarity to the courts and the bar” was actually only “dictum” that

obviously had no “binding effect.” Lee, 999 So. 2d at 1266 n.3. Not only that, the Court

criticized “the trial court’s reliance on Guffy” as “misplaced.” Id.

¶10.   The foregoing decisions are hard to reconcile. One purports to provide “direction and

clarity to the courts and the bar,” while another criticizes a circuit judge for heeding that very

direction. One holds that Guffy’s pronouncements apply retroactively and are “controlling,”

while the next says that those pronouncements were only “dictum.”1 With “direction and

clarity” downgraded to dicta to be relied on at our own risk, we will muddle through as best

we can. We address each of the seven required categories of information in turn.

       1.      The circumstances that brought about the injury

¶11.   MDOT concedes that Lane’s notice “arguably fully satisf[ies]” this requirement. We

agree, although we note that Lane provided only slightly more information than the Supreme

Court deemed insufficient in Fairley. See Fairley, 871 So. 2d at 717-18 (¶¶12-13); id. at 719

       1
         As Lee states, “dictum” is never “binding,” retroactively or prospectively. This
raises the question how dictum was deemed retroactively “controlling” in Parker. As it
turns out, Parker engaged in an analysis, possibly the first of its kind, of the retroactivity of
dicta.

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(¶20) (Easley, J., dissenting).

       2.     The extent of the injury

¶12.   Lane provided no information about the extent of his injuries. His notice stated only

that he “ha[d] suffered and continue[d] to suffer damages in excess of $28,983.53, in

personal and property damages,” and unspecified “pain and suffering” damages. Our

Supreme Court has “recognize[d] . . . that on occasion the full extent of such injuries may

only become known at a later date. However, a plaintiff is required to reveal the extent of

injuries known at the time the notice letter is sent.” Fairley, 871 So. 2d at 718 (¶13). Here,

Lane filed his notice of claim almost one year after the alleged motorcycle accident but

provided no description of his alleged injuries or their extent, disclosing only the types of

damages he claimed. Lane failed to satisfy the requirement. See id. (finding that notice of

“personal injuries and/or property damage” failed to satisfy the requirement).2

       3.     The time and place the injury occurred

¶13.   MDOT disputes that Lane’s notice satisfied this requirement. MDOT emphasizes that

the notice named the wrong county. The accident occurred in Harrison County, not Forrest

County, as Lane’s notice of claim stated. In fact, Highway 67 is located entirely in Harrison

County, so the accident could not have occurred on Highway 67 in Forrest County. MDOT

also points out that Lane’s notice failed to state what time of day the injury occurred.


       2
       We recognize that Lane provided a dollar-value for part of his claim; however, “the
amount of money damages sought” is a separate and distinct category of required
information, which we address below.

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However, in the circuit court, MDOT stated in its motion for summary judgment that Lane’s

“notice . . . provided information to satisfy” this particular requirement. Indeed, it would

appear that MDOT had not noticed Lane’s mistake when it filed its motion for summary

judgment. Lane first raised the issue when he acknowledged the mistake in his response.

As such, it appears that MDOT knew and understood from the notice where the accident

allegedly occurred. Therefore, we accept that Lane’s notice provided adequate facts as to

this particular category of information.

       4.     The names of all persons known to be involved

¶14.   MDOT does not contend that Lane’s notice was insufficient with respect to this

particular required category of information. The notice does not directly address this issue;

however, the notice seems to describe a one-vehicle accident, and Lane cannot be expected

to know the names of specific MDOT personnel involved in the road’s maintenance. While

it would have been better for Lane’s notice to state directly whether he was aware of any

other persons involved, we do not consider his failure to do so non-compliance.

       5.     The amount of money damages sought

¶15.   As noted above, Lane’s notice of claim stated that he had “suffered and continue[d]

to suffer damages in excess of $28,983.53, in personal and property damages,” plus

unspecified “pain and suffering” damages. The circuit court found that Lane “barely”

“reach[ed] the level of substantial compliance” as to this component of his statement of

claim. On appeal, MDOT argues that the information is insufficient. We agree that Lane



                                             7
fails to specify whether this amount reflects medical bills, damage to his motorcycle, both,

or something else. Nonetheless, like the circuit court, we find that the information is

“barely” sufficient with respect to the fifth required category of information.

       6-7.   The claimant’s residence at the time of the injury and at the time of
              filing the notice

¶16.   The final two categories of information are related, so we address them together.

Lane admits that his notice of claim completely failed to address either required category of

information. Citing Lee, supra, Lane argues that his counsel’s letterhead was a substitute for

compliance. We disagree.

¶17.   In Lee, the plaintiff (Lee) alleged that she suffered injuries as a result of medical

malpractice by employees of Memorial Hospital at Gulfport (MHG). Lee, 999 So. 2d at

1264 (¶3). Lee’s notice of claim included a detailed description of her alleged injuries and

MHG’s alleged negligence. Id. Her notice also contained her attorney’s letterhead, her name

and date of birth, and the specific dates that she was treated at MHG. Id. One month after

receiving Lee’s notice of claim, MHG informed Lee that it had reviewed her claim, that it

found no deviation from the applicable standard of care, and that her claim was denied. Id.

at 1265 (¶3). The circuit court dismissed Lee’s subsequent complaint against MHG after

finding that Lee failed to comply with section 11-46-11(2), as interpreted by Guffy, supra.

Id. at 1266 (¶10). However, the Supreme Court reversed on appeal. As noted above, the

Court stated that the circuit judge’s reliance on Guffy was “misplaced.” Id. at 1266 n.3. The

Court’s opinion first concluded that Lee’s notice of claim provided the first five categories

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of information required by section 11-46-11(2). Id. at 1267 (¶¶11-12). As to the final two

required categories, the Court reasoned:

       Last, the notice of claim contained the letterhead of Lee’s attorney, Lee’s
       name, and Lee’s date of birth. While Lee did not provide her residence at the
       time of the injury or at the time of the notice, we find the information provided
       to be in substantial compliance with the statutory requirements. While there
       may be some cases in which the claimant’s residence is a critical issue, clearly
       it was not in this case. The address of Lee’s counsel was provided, and Lee’s
       date-of-birth and dates of hospitalization were provided for identification
       purposes. Clearly, MHG was able to identify Lee as a patient and investigate
       and conduct a “review of the matter” as evidenced by its letter of denial.

Id. at (¶12).

¶18.   This case is distinguishable from Lee. Lee failed to provide her address at the time

of the injury or at the time she submitted her claim, but she provided ample information for

“identification purposes” in the form of her date of birth and the dates of her hospitalization.

Obviously, MHG was able to identify her—and review the merits of her claim—based on its

own records of her treatment. The Supreme Court’s opinion seemed to view the information

that Lee provided as an imperfect substitute for, or attempt to comply with, section 11-46-

11(2)’s sixth and seventh required categories of information, rather than a complete failure

to comply with those sub-requirements. In contrast, the notice of claim in the present case

provides absolutely no identifying information other than to show that the claimant’s name

is “Harry R. Lane.”

¶19.   In Lee, the Supreme Court went on to state that its decision “should not be interpreted

as holding that the required elements [of section 11-46-11(2)] do not need to be explicitly



                                               9
stated in the notice of claim.” Lee, 999 So. 2d at 1267 (¶13). The Court stated that it would

“continue to apply a substantial compliance standard,” that the determination of substantial

compliance was “fact-sensitive,” and that on the particular “facts and circumstances of [that]

case,” Lee’s notice “substantially complied with the statutory requirements of [s]ection

11-46-11(2) and fulfilled the purpose of the statute as set forth in Reaves ex rel. Rouse v.

Randall, [729 So. 2d 1237 (Miss. 1998)].” Lee, 999 So. 2d at 1267 (¶13). Per Reaves, the

purpose of the notice requirement is to ensure that governmental entities are on notice of

claims against them and to permit prompt corrective action and settlement when appropriate.

See Reaves, 729 So. 2d at 1240 (¶9).

¶20.   In summary, Lane’s notice of claim disclosed only that “[o]n or about” a date one year

earlier he wrecked his motorcycle on Highway 67; that he suffered personal injuries and

property damages; and that he was seeking damages “in excess of $28,983.53.” As discussed

above, Lane’s notice of claim provided some information in four of the “seven required

categories of information which must be included” in a notice of claim, Parker, 987 So. 2d

at 439 (¶18) (quoting Guffy, 930 So. 2d at 1257-58 (¶18)), although the information in some

of those categories was minimally sufficient at best. However, Lane’s notice provided no

information to satisfy the other three requirements of section 11-46-11(2): the extent of the

injury, his residence at the time of the injury, and his residence at the time of the claim. This

information was absent even though the statute and multiple Supreme Court opinions had

identified it as essential to a proper notice of claim. And unlike the claimant in Lee, Lane’s



                                               10
notice of claim failed to provide alternative identifying information. See Lee, 999 So. 2d at

1267 (¶12). Rather, MDOT was informed only that someone named Harry Lane was making

a claim against it based on a motorcycle wreck that occurred one year earlier.

¶21.     In Lee, the Court reiterated that all “required elements” of section 11-46-11(2) do

“need to be explicitly stated in the notice of claim.” Id. at (¶13). Lee also described its

holding as “fact-sensitive” and “[b]ased on the facts and circumstances of [that] case.” Id.

We conclude that the facts of this case are materially different. For the reasons discussed

above, we conclude that the notice of claim in this case reflects non-compliance, rather than

substantial compliance, under the Supreme Court’s precedents. The Supreme Court has held

that although “substantial compliance with the notice provisions is sufficient, substantial

compliance is not the same as, nor a substitute for, non-compliance.” Fairley, 871 So. 2d at

717 (¶8) (quotation marks omitted). Accordingly, we affirm the judgment of the circuit

court.

¶22. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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