                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2007-SA-00597-SCT

                                CONSOLIDATED WITH

                                 NO. 2005-CA-02076-SCT


DENNIS M. McLEMORE AND WIFE, TAMMY C. McLEMORE

v.

MISSISSIPPI TRANSPORTATION COMMISSION




DATE OF JUDGMENT:                           03/13/2007
TRIAL JUDGE:                                HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                    JOSEPH WALKER SIMS
ATTORNEYS FOR APPELLEE:                     RICHARD G. NOBLE
                                            J. ANTHONY WILLIAMS
NATURE OF THE CASE:                         CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                REVERSED AND REMANDED - 06/12/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    Dennis and Tammy McLemore filed suit in the Circuit Court of DeSoto County

against the Mississippi Transportation Commission (MTC) and Talbot Brothers Contracting

Co., Inc., alleging a taking without just compensation in violation of the Mississippi and U.S.

Constitutions due to flooding and siltation on real property from negligence in the
construction of a highway.       The trial court granted summary judgment for MTC.

Subsequently, the McLemores filed this appeal.

                       FACTS AND PROCEDURAL HISTORY

¶2.    The MTC filed an eminent domain action in 1999 to obtain a 174-acre portion of the

McLemores’ DeSoto County property to construct an interstate highway between Interstate

55 at Hernando and Highway 61 at Robinsonville.           A jury awarded the McLemores

$1,370,000 in 2001. In 2003, this Court reversed the verdict of the jury and remanded the

case for a new trial. See Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003).

Prior to the retrial, MTC filed a motion in limine to prohibit the McLemores from introducing

proof regarding flooding, drainage and erosion damages. The trial court granted the motion,

ordering as follows:

       [T]he Plaintiff’s Motion in Limine is hereby sustained and the Court orders
       that counsel for the Defendants, the Defendants and witnesses for the
       Defendants shall refrain from mentioning or stating during the trial of this
       cause all matters pertaining to claims of post-acquisition damages to
       Defendants’ property caused by the construction of the highway which is the
       subject of this lawsuit.
               All such parties shall not refer in their statements and/or testimony to
       damages incurred by Defendants as a result of the action of the contractor or
       any other party from the construction of the highway, including but not limited
       to erosion, siltation, crop damage and remediation efforts. The Court finds that
       such reference or mention of post-acquisition damages is not a proper element
       of damages and therefore cannot be considered in this eminent domain action.

¶3.    On retrial, the jury returned a verdict awarding the McLemores $1,425,320 in

compensation and damages and granting MTC immediate title, possession, and entry upon

the property, appropriating it to the public use upon payment.




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¶4.    In the instant case, the McLemores assert that MTC’s construction of the highway

itself and through its contractor, Talbot, caused numerous flooding, drainage, and siltation

problems for the remainder of their land. Specifically, the McLemores assert that the

excavation of fill dirt for the highway from pits located on Tunica Bluffs caused severe

erosion and siltation. In an attempt to cure some of the problems, MTC built a bridge over

the drainage ditch and took out a previously-installed culvert to allow increased flow of

water. Talbot was fined for its practices by the Mississippi Department of Environmental

Quality.

¶5.    The McLemores filed suit alleging a taking without just compensation of their

remaining property by the MTC due to flooding and siltation and also alleging that Talbot

was negligent. MTC answered and filed a motion for summary judgment on the basis that

the action should have been brought under the Mississippi Tort Claims Act. The McLemores

filed a response reiterating their claim of a taking. On August 18, 2005, the trial court

entered an order granting MTC’s motion for summary judgment, finding in part: “In the case

at hand, while the Plaintiffs have couched their claims as a constitutional violation, the Court

finds that the claims are clearly tort-based and, therefore, subject to the Mississippi Tort

Claims Act.” The trial court further found the action was barred by the applicable statute of

limitations.1 On September 27, 2005, the trial court entered an Order of Dismissal and Final

Judgment only as to MTC.2 Thereafter, the McLemores filed this appeal.

                                            ANALYSIS


       1
           Miss. Code Ann. Section 11-46-11(3) (Rev. 2002).
       2
           The pending negligence action against Talbot is not before this Court.

                                                  3
Whether the trial court erred in granting summary judgment in favor of the MTC,
dismissing the claims of the McLemores under Article 3, Section 17 of the Mississippi
Constitution and under the Fifth and Fourteenth Amendments to the United States
Constitution for just compensation and damages.

¶6.    This Court employs a de novo standard of review in considering a trial court’s

decision on a motion for summary judgment. See Huff-Cook, Inc. v. Dale, 913 So. 2d 988

(Miss. 2005). See also Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206 (Miss.

2001). “A motion for summary judgment should be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.

at 1209. See Rule 56(c), Mississippi Rules of Civil Procedure (M.R.C.P.). “To prevent

summary judgment, the non-moving party must establish a genuine issue of material fact by

means allowable under the rule.” Hartford, 826 So. 2d at 1209. This Court has further said:

       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.


City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001) (quoting Heigle v. Heigle, 771 So.

2d 341, 345 (Miss. 2000)) (internal citations omitted).




                                              4
¶7.    The McLemores assert that the trial court’s finding that the case should have been

brought under the Mississippi Tort Claims Act contradicts prior case law. Specifically, the

McLemores assert that the trial court decision contradicts B&W Farms v. Mississippi

Transportation Commission, 922 So. 2d 857 (Miss. Ct. App. 2006). The MTC asserts that

B&W Farms only reaffirms the application of the Mississippi Tort Claims Act to this case.

¶8.    In B&W Farms, the Court of Appeals (COA) affirmed the trial court, finding that

B&W failed to provide sufficient notice to the defendant of the claims and grounds pursuant

to Article 3, Section 17 of the Mississippi Constitution, under which relief was sought.

Clearly, such a finding indicates the viability of such a claim if proper notice is provided.

Moreover, the parties agree that the McLemores provided notice of the constitutional claims.

However, the MTC asserts that the Mississippi Tort Claims Act provides the exclusive

remedy for the McLemores and that they failed to plead it; therefore summary judgment was

proper. However, we disagree.

¶9.    Article 3, Section 17 of the Mississippi Constitution states:

       Private property shall not be taken or damaged for public use, except on due
       compensation being first made to the owner or owners thereof, in a manner to
       be prescribed by law; and whenever an attempt is made to take private
       property for a use alleged to be public, the question whether the contemplated
       use be public shall be a judicial question, and, as such, determined without
       regard to legislative assertion that the use is public.


Miss. Const. Ann. art. 3, §17.

¶10.   This Court has previously upheld damages pursuant to this constitutional provision.

See Miss. State Highway Comm’n v. Thomas, 202 So. 2d 925 (Miss. 1967) (highway



                                             5
commission held liable for damages to property where, as a result of highway construction,

the natural flow of water from area increased and carried dirt, sand, clay and other materials

into a lake located on Thomas’ land). See also Miss. State Highway Comm’n v. Engell, 251

Miss. 855, 171 So. 2d 860 (1965) (highway commission liable for damage to adjacent

property). Further, this constitutional provision is only applicable in cases involving property

taken for public use. Burkett v. Ross, 227 Miss. 315, 86 So. 2d 33 (Miss. 1956). Moreover,

this Court has said that “[n]o public policy of the state can be allowed to override the positive

guaranties of the Constitution, or divest persons of their title to property, except in the way

which the law provides.” Hill v. Woodward, 100 Miss. 879, 889, 57 So. 294 (Miss. 1911).

¶11.   While there is an argument that this Court has distinguished cases involving

negligence claims, such argument is not applicable here. The negligence claims in the instant

case pertain to Talbot. The action against MTC is for taking without just compensation

pursuant to the constitution. This Court has previously found the language that “[p]rivate

property shall not be taken or damaged for public use,” as quoted previously herein, is

without limitation. Specifically, this Court has found:

       The words are without limitation or qualification. They embrace within their
       inhibition all those attempting to convert private property to public use,
       artificial as well as natural persons, municipal and other corporations alike;
       and they cover all damages of whatever character. . . . The citizen must now
       be held, under this new provision of our fundamental law, to be entitled to due
       compensation for, not the taking, only, of his property for public use, but for
       all damages to his property that may result from works for public use. He is
       now secured in his property, and his use and enjoyment of his property. The
       burdens formerly borne by the citizen, resulting from damage done his
       property by a diminution or destruction of his right to use and enjoy his own,
       were designed by this new constitutional rule to be placed upon those by
       whose action the diminution or destruction was wrought.


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City of Vicksburg v. Herman, 72 Miss. 211, 214-15, 16 So. 434, 435 (Miss. 1894).

¶12.   In later cases, this Court adopted the trend of distinguishing somewhat similar cases

involving negligence-based claims. See Stevens v. Beaver Dam Drainage Dist., 123 Miss.

884, 86 So. 641 (1920) (public corporation not liable for damages caused by negligence of

officers and agents). See also State Highway Comm’n v. Knight, 170 Miss. 60, 154 So. 263

(1934).   However, this Court later clarified this issue in Parker v. State Highway

Commission, 173 Miss. 213, 162 So. 162 (Miss. 1935), in finding that injury to adjoining

property by the change of grade is damage within the constitutional sense.

               We say here that by implication the statute authorized the payment not
       only of compensation for the land, but for damages as well, and conferred all
       the powers embraced within the eminent domain chapter upon the state
       highway commission. But, if we should be mistaken in this view, section 17,
       Constitution of 1890, is self-executing. Prior to the adoption of this
       Constitution the Legislature could limit a landowner’s recovery to
       compensation for the land appropriated for public use, but as section 17 now
       exists it is quite clear that any effort on the part of the Legislature to shield the
       government or any arm thereof from payment of damages occasioned by it on
       the appropriation of land would be futile and of no effect. Before our
       Constitution was adopted, sections similar to the one here under consideration
       had been construed by the courts of other states as being self-executing.
       Section 17 of the Constitution is mandatory.


Parker, 173 Miss. at 222-23. Moreover, this Court found:


              The common-law remedy existing in favor of the property owner for
       damages to his property, beyond the appropriation thereof, is clear in this
       case. The Legislature has granted the highway commission in express terms
       the right to sue and to be sued.
       . . . The courts of the land, in order to preserve the liberty and rights of the
       people, must adhere to the plain stipulations of that document, and it would be
       a sad day in the history of a democratic constitutional form of government if
       the courts should swerve from the plain mandates of the organic law, which all
       the people are bound together in solemn compact to uphold and preserve.

                                                7
Id. at 225.

¶13.   In the instant case, the trial court found as a matter of law that summary judgment was

proper. However, we find that the trial court erred in granting MTC’s motion for summary

judgment and that, as a matter of law, the McLemores are entitled to bring their claims.

Therefore, this matter is reversed and remanded.

¶14.   REVERSED AND REMANDED.

    DIAZ, P.J., EASLEY, RANDOLPH AND LAMAR, JJ., CONCUR.
DICKINSON, J., CONCURS IN RESULT ONLY. WALLER, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., AND CARLSON, J.



       WALLER, PRESIDING JUSTICE, DISSENTING:

¶15.   Because Article 3, Section 17 of the Mississippi Constitution does not apply to claims

arising out of negligence, I would affirm summary judgment in favor of MTC.

¶16.   This case concerns post-acquisition damages stemming solely from the negligent acts

of Talbot. After listing numerous failures and allegations of negligence on the part of Talbot,

the McLemores’ complaint stated that “[t]he negligent actions of the Talbot defendants are

the proximate cause and/or proximate causes of the damages to the McLemore Property, the

value of the McLemore property, growing crops on the McLemore Property, and to the

McLemores.” The complaint also notes that the Mississippi Department of Environmental

Quality (MDEQ) had levied fines on Talbot because of some of their actions. While the

McLemores attempt to frame their claim against MTC as a taking, the grounds for their claim

and their damages arise strictly from the negligence of Talbot.


                                              8
¶17.   In precedent dating back almost one hundred years, this Court repeatedly has rejected

plaintiffs’ attempts to recover damages under Section 17 for a suit based solely on

negligence. See State Highway Comm’n v. McClendon, 212 Miss. 18, 27-29, 53 So. 2d 35,

39-41 (1951); City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595 (1940); State Highway

Comm’n v. Knight, 170 Miss. 60, 154 So. 263 (1934); Stephens v. Beaver Dam Drainage

Dist., 123 Miss. 884, 86 So. 641 (1920); Chidsey v. City of Pascagoula, 102 Miss. 709, 59

So. 879 (1912); see also Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1092-93

(6th Cir. 1978).3 The doctrine of sovereign immunity protects a state from being sued in tort

absent its consent. See Mohundro v. Alcorn County, 675 So. 2d 848, 852 (quoting Grimes

v. Pearl River Valley Water Supply Dist., 930 F.2d 441, 443-44 (5th Cir. 1991)). The state

communicates such consent in the form of tort claims acts. Mohundro, 675 So. 2d at 852


       3
         Other cases appear to suggest that plaintiffs may recover damages under Section 17
for claims based on the negligent construction, operation, or maintenance of a project.
Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39 (1937); Hodges v. Drew, 172
Miss. 668, 159 So. 298 (1935); Covington County v. Watts, 120 Miss. 428, 82 So. 309
(1919); Rainey v. Hinds County, 78 Miss. 308, 28 So. 875 (1900). However, this Court has
distinguished Hodges and Thompson because in both of those cases the Court found
sufficient claims to sustain an action for damages under Section 17. Peavy, 188 Miss. at 175-
76. Additionally, this Court distinguished Rainey and Watts because there were statutes in
each of those cases that imposed liability. McClendon, 212 Miss. at 28 (citing Stephens, 123
Miss. 884).

        This Court’s opinion in Parker v. State Highway Commission, 173 Miss. 213, 162
So. 162 (1935), did little to clarify the issue. In Parker, this Court noted the distinction made
for claims grounded in negligence. Parker, 173 Miss. at 222-24. Finding that the highway
commission’s actions were authorized and that the claim was not based on any negligent act,
this Court held that a viable cause of action existed under Section 17. Id. at 224.
Furthermore, while the majority cites the Court of Appeals opinion in B&W Farms v.
Mississippi Transportation Commission, 922 So. 2d 857 (Miss. Ct. App. 2006), for support,
the Court of Appeals never reached the issue of whether Section 17 permits damages for a
negligence-based claim. B&W Farms, 922 So. 2d at 859.

                                               9
(quoting Grimes, 930 F.2d at 443-44). If a tort claim based solely in negligence were

allowed to proceed as a taking under Section 17, the doctrine of sovereign immunity would

be circumvented.

¶18.    Thus, Section 17 has “no bearing on the liability vel non of a [public] corporation for

the unauthorized acts of its officers and agents, which liability must still be determined by

the rules of common law as modified by statute.” Stephens, 123 Miss. at 900; see also 29A

C.J.S. § 167 (2007) (“Damages caused by willful, negligent, or improper acts in the

construction of an improvement, as well as damages so caused in the operation, or

maintenance of a public improvement are not recoverable in the condemnation proceedings,

the remedy, if any, of the landowner in such cases being an independent action for damages

or a legislation claims bill.”).

¶19.   In McClendon, the plaintiffs asserted a taking by the state highway commission due

to flooding caused by the construction of a highway and an artificial ditch. McClendon, 212

Miss. at 19-21. This Court held that compensation under Section 17 was not proper because

the plaintiffs’ claims for damages were due to the highway commission’s negligence in

failing to properly maintain the ditch. Id. at 29. This Court noted that compensation under

Section 17 would have been appropriate if the damages had been caused by the mere

construction of the highway or the artificial ditch. Id. at 28-29. Similar to McClendon, the

damages asserted by the McLemores in this case derived from Talbot’s negligent

construction and repair efforts.




                                              10
¶20.    The Mississippi Tort Claims Act serves as the exclusive civil remedy against a

governmental entity for suits in tort. City of Jackson v. Sutton, 797 So. 2d 977, 980 (2001)

(citing Miss. Code Ann. § 11-46-7(1) (Supp. 1998)). Having failed to pursue their claim

against MTC under the Tort Claims Act, the McLemores have no further recourse against

MTC.4

¶21.    For the aforementioned reasons, I respectfully dissent.

        SMITH, C.J., AND CARLSON, J., JOIN THIS OPINION.




        4
          Notably, MTC asserts that summary judgment was appropriate for the additional
reason that Talbot was an independent contractor. See Chisolm v. Miss. Dept. of Transp.,
942 So. 2d 136, 141 (Miss. 2006) (as a general rule, an independent contractor’s principal
is not vicariously liable for torts committed by the independent contractor) (citing Heirs &
Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743
So. 2d 311, 318 (Miss. 1999)).

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