        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CP-00577-COA

RUBEN ORLANDO BENITEZ                                                      APPELLANT

v.

JOEL WALLACE                                                                APPELLEE

DATE OF JUDGMENT:                         04/03/2018
TRIAL JUDGE:                              HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   RUBEN ORLANDO BENITEZ (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: DANIEL BURNHAM SMITH
NATURE OF THE CASE:                       CIVIL - TORTS-OTHER THAN PERSONAL
                                          INJURY AND PROPERTY DAMAGE
DISPOSITION:                              AFFIRMED - 06/04/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    In this case, we must determine whether the one-year statute of limitations under

Mississippi Code Annotated section 11-46-11(3)(a) (Rev. 2012) applies to bar a claim against

a government employee. Finding the one-year limitation applicable, we affirm.

                              PROCEDURAL HISTORY

¶2.    In 2011, Ruben Orlando Benitez was arrested and charged with the murder of Stacey

Wright. This Court affirmed his conviction and sentence in Benitez v. State, 139 So. 3d 134,

143 (¶40) (Miss. Ct. App. 2014).

¶3.    On June 29, 2017, Benitez sued Joel Wallace under the Mississippi Tort Claims Act
(MTCA), alleging that Wallace committed several torts against him during the investigation

into Wright’s murder. At the time of the investigation Wallace was a detective with the

Mississippi Bureau of Investigation.

¶4.      Wallace was served with process on November 1, 2017, but did not file his answer

and affirmative defenses until December 8, 2017. On December 4, 2017, Benitez filed a

motion for default judgment. Soon after, Wallace filed a motion to dismiss and a response

to the motion for default judgment.

¶5.      The trial court granted Wallace’s motion to dismiss, finding that the alleged tortious

conduct occurred in 2011, and therefore the one-year statute of limitations barred Benitez’s

claim.

¶6.      Benitez now appeals, asserting that the trial court erred in granting Wallace’s motion

to dismiss.

                                        DISCUSSION

¶7.      Benitez chiefly argues that his claim is not barred by the one-year statute of

limitations. We review questions of law, including the application of the MTCA and issues

concerning statutes of limitations, de novo. Kelley LLC v. Corinth Pub. Utils. Comm’n, 200

So. 3d 1107, 1112-13 (¶14) (Miss. Ct. App. 2016).

¶8.      Section 11-46-11(3)(a) states that “[a]ll actions brought under this chapter shall be

commenced within one (1) year next after the date of the tortious, wrongful or otherwise

actionable conduct on which the liability phase of the action is based, and not after . . . .”


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The events Benitez described in the complaint allegedly occurred on or about September 18,

2011. Benitez’s suit was filed over six years later, well outside the applicable one-year limit.

¶9.    Benitez attempts to circumvent the time bar by asserting that he was of unsound mind.

See Miss. Code Ann. § 11-46-11(4); Miss. Code Ann. § 1-3-57 (Rev. 2014). Benitez claims

he was of unsound mind because he was placed on suicide watch at the time of his arrest for

murdering Wright. However, there is nothing in the record to indicate Benitez was ever

found incompetent or could not manage his affairs. And Benitez admits he has no medical

evidence to support his claim.

¶10.   Additionally, Benitez argues that the trial court should have granted his motion for

default judgment because Wallace filed his answer several days late. Benitez’s motion was

styled as a motion for default judgment, but it appears the clerk’s office treated it as a request

for entry of default under Mississippi Rule of Civil Procedure 55(a).1 The trial court

indicated that the clerk’s office did not enter a default because Wallace filed his answer. See

Wheat v. Eakin, 491 So. 2d 523, 525 (Miss. 1986) (“Entry of default by the clerk should only

be in the absence of any response by the defending party.”). During the hearing, Benitez

again argued that he was entitled to a default judgment because Wallace’s answer was late.

The trial court found no merit to his argument, noting again that Wallace filed his answer.

The trial court did not explicitly deny the motion for default judgment—instead it dismissed


       1
         Under Rule 55(a), the clerk shall enter the default of a party if that party “has failed
to plead or otherwise defend . . . and that fact is made to appear by affidavit or otherwise
. . . .”

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the action. Benitez offers no other reason why his motion should have been granted.

Regardless, orders denying motions for default judgments are not final, appealable orders.

Deutsche Bank Nat’l Trust Co. v. Brechtel, 81 So. 3d 277, 279 (¶11) (Miss. Ct. App. 2012).

Even though the statute of limitations bars his claim, Benitez’s argument here is without

merit.

¶11.     AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ.,
CONCUR.




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