                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2002-CA-01196-SCT

HENRY PUNZO

v.

JACKSON COUNTY, MISSISSIPPI


DATE OF JUDGMENT:                            6/29/2002
TRIAL JUDGE:                                 HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                   JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     RUSSELL S. GILL
                                             BRADLEY WADE RATH
ATTORNEY FOR APPELLEE:                       GARY S. EVANS
NATURE OF THE CASE:                          CIVIL - PROPERTY DAMAGE
DISPOSITION:                                 REVERSED AND REMANDED-12/04/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This case, arising from property damage, arises under the Mississippi Tort Claims Act

(MTCA), Miss. Code Ann. § § 11-46-1 to -23 (Rev. 2002 & Supp. 2003). The landowner

seeks an award of monetary damages and a mandatory injunction against a county. The issues

before us are whether the trial court erred in granting summary judgment, finding the claim to

be time barred as to money damages, and whether the trial court erred in refusing to grant a

mandatory injunction. We find the trial court’s summary judgment dismissing the money

damage claims was not proper because the discovery of a latent injury rule applied to toll the

statute of limitations. On the issues concerning injunctive relief, we find the trial court erred
in not applying the current legal standard for mandatory injunctions. Therefore, we reverse and

remand.

                                            FACTS

¶2.    Since 1986, Henry Punzo (Punzo) has resided at 15600 Green Thumb Drive in Jackson

County, Mississippi; his home was built at approximately eighteen feet above sea level. On

Punzo’s property is a creek which crosses about three acres of the property. Approximately

three-fourths of a mile to one mile from Punzo’s home downstream is the Daisy Vestry Road

two-lane bridge (bridge), spanning the creek with a steep approach on each side. This low area

serves as a relief mechanism for the watershed upstream of the bridge.

¶3.    In late 1991 or early 1992, the Jackson County Road Department filled in the north

approach to the bridge. This operation encompassed a length of about four hundred fifty feet

to an average height of about two feet. The fill was calculated to have provided an extra two

thousand seven hundred cubic feet per second of water flow capacity to the flow allowed by

the bridge.

¶4.    Sometime after the approach was raised or filled, Jackson County added two

polyethylene culverts immediately north of the bridge. These culverts were calculated to have

about one hundred sixty cubic feet per second of water flow capacity. This is about six percent

of the approach’s capacity prior to the fill.

¶5.    On May 5, 1995, Punzo’s home flooded for the first time. On March 7, 1998, the

house flooded a second time. Punzo’s house flooded three more times on September 12,

1998, September 27, 1998, and June 11, 2001. The home flooded at least once more since




                                                2
the trial of this matter. As a result of the floods, Punzo has incurred approximately

$129,973.98 in damages to date.

¶6.    The following tropical storms and/or hurricanes coincided with episodes of flooding:

September 12, 1998, was Tropical Storm Frances with a total of 8.07 inches of rainfall,

September 27, 1998, was Hurricane Georges with 15.67 inches of rainfall, and June 11, 2001,

was Tropical Storm Allison with 9.90 inches of rainfall.

¶7.    On September 9, 1999, Henry Punzo presented a notice of claim to the Jackson County

Board of Supervisors (Board), pursuant to the MTCA. On December 8, 1999, Punzo filed a

complaint against Jackson County, Mississippi (County) in the Circuit Court of Jackson

County. The lawsuit sought a claim for money damages and a mandatory injunction.

¶8.    After the County filed a motion to dismiss or in the alternative, for summary judgment,

Punzo filed an amended complaint. The trial court disposed of the claim for money damages

under the MTCA by partial summary judgment on January 11, 2002, finding the claim was

barred by the one-year statute of limitations. The court held that the statute began to run at the

time of the alleged wrongful conduct the raising of the road on the north side of the bridge.

Punzo claimed the discovery of a latent injury rule applied, tolling the statute of limitations

until his discovery of the alterations to the bridge in 1998.

¶9.    After a full trial on the merits concerning the remainder of Punzo’s complaint, the trial

court denied Punzo’s request for a mandatory permanent injunction. The trial court found that

Punzo did not prove beyond a reasonable doubt that he was entitled to a mandatory injunction

and that Punzo did not show that an injunction is the only effective remedy. The trial court




                                                3
issued final judgment on July 2, 2002. Punzo appealed to this Court the trial court’s partial

summary judgment and denial of mandatory injunctive relief.

                                 STANDARD OF REVIEW

¶10.   The County filed a motion to dismiss, or in the alternative for summary judgment. This

Court has said before a motion to dismiss raises issues of law. Reid v. Am. Premier Ins. Co.,

814 So. 2d 141, 144 (Miss. 2002) (citing Sennett v. United States Fid. & Guar. Co., 757 So.

2d 206, 209 (Miss. 2000)). This Court reviews de novo a grant of summary judgment. Aetna

Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). Only if the plaintiff is unable to

prove any facts to support his claim will summary judgment be granted. Smith v. Braden, 765

So. 2d 546, 549 (Miss. 2000) (citing Delahoussaye v. Mary Mahoney’s, Inc., 696 So. 2d 689,

690 (Miss. 1997)). In order for this Court to reverse a summary judgment, there must exist

a triable issue of fact after the facts are viewed in the light most favorable to the nonmoving

party. Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 207 (Miss. 1999) (citing Box

v. State Farm Mut. Auto Ins. Co., 692 So. 2d 54, 56 (Miss. 1997)).

¶11.   Additionally, on appeal is the trial court’s judgment denying injunctive relief. The

review of a trial judge’s findings of fact and law requires a finding that the trial court was

manifestly wrong before this Court will disturb its ruling. USPCI of Miss., Inc. v. State ex rel.

McGowan, 688 So.2d 783, 786 (Miss. 1997) (citing RC Constr. Co., Inc. v. Nat’l Office Sys.,

Inc., 622 So.2d 1253, 1255 (Miss. 1993)).

                                    LAW AND ANALYSIS




                                               4
¶12.   There are four issues on appeal. The first concerns the order dismissing the claims as

to money damages; the order is styled as one granting summary judgment as to the money

damages. The remaining three concern the final judgment denying a mandatory injunction, and

these three will be addressed together.

       I.     WHETHER THE TRIAL COURT ERRED IN GRANTING THE
              COUNTY’S MOTION FOR SUMMARY JUDGMENT AS TO
              PUNZO’S CLAIM FOR MONEY DAMAGES.

¶13.   The trial court’s basis for dismissing the money claims by partial summary judgment

was that the claim was time barred by the statute of limitations provision that applies to

government entities:

       All actions brought under the provisions of 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; provided, however, that the filing of a notice of claim as required by
       subsection (1) of this section shall serve to toll the statute of limitations for a
       period of ninety-five (95) days from the date the chief executive officer of the
       state agency receives the notice of claim, or for one hundred twenty (120) days
       from the date the chief executive officer or other statutorily designated official
       of a municipality, county or other political subdivision receives the notice of
       claim, during which time no action may be maintained by the claimant unless the
       claimant has received a notice of denial of claim.

Miss. Code Ann. § 11-46-11-(3). The County claims that the discovery rule does not apply

to toll the statute. Punzo claims the discovery rule does apply.

¶14.   Punzo argues that if the one-year statute of limitations in § 11-46-11(3) applies, then

his claim was promptly filed since he filed his complaint within one year of his discovery of

the County’s negligent rebuilding of the bridge. Barnes v. Singing River Hosp. Sys., 733 So.

2d 199, 204 (Miss. 1999). Punzo asserts that he had no way of knowing that the County was

liable until September 12, 1998, when his neighbor, Mark Holland, and former Jackson County

                                               5
supervisor Tommy Brodnax advised him of the modification to the bridge. As a result, he

maintains that his notice to the County, filed on September 9, 1999, was timely filed within

one year of his discovery of the County’s negligent conduct. His complaint filed on December

8, 1999, was also timely filed.

¶15.     The County argues that the statutory language used, “the tortious, wrongful or otherwise

actionable conduct,” requires the statute to run from the date the bridge construction was

completed, which would have been late 1991 or early 1992. The County also argues that for

the discovery rule to apply, there must be a latent injury. Looking at the flood as the injury,

the County states there is nothing latent, or concealed, about floodwaters in a house. Punzo

contends that this Court should look to the discovery of the cause of the injury in this instance,

not the date, because the cause was not readily apparent or obvious. The trial court held that

Punzo’s injury was “immediate rather than latent,” explaining, “[t]he cause of the injury may

have been unknown at the time, but [Punzo] certainly knew that he had been injured in May of

1995.”

¶16.     The trial court’s findings are not consistent with this Court’s prior holdings as in

Barnes, 733 So. 2d 199, and Sweeney v. Preston, 642 So.2d 332 (Miss. 1994). In Barnes,

this Court repeated Sweeney’s summary of the rationale supporting the application of the

discovery rule to latent injury cases:

         Thus, where an injury or disease is latent, a determination of when the statute of
         limitation begins to run focuses not on the time of the negligent act or
         omission, but on when the plaintiff discovers the injury or disease. Moreover,
         knowledge that there exists a casual relationship between the negligent act and
         the injury or disease complained of is essential because “it is well-established
         that prescription does not run against one who has neither actual nor
         constructive notice of facts that would entitle him to bring an action.”

                                                 6
733 So. 2d at 204 (quoting Sweeney, 642 So.2d at 334 (quoting Williams v. Kilgore, 618

So.2d 51, 55 (Miss. 1992)).” Also, Sweeney references Gentry v. Wallace, 606 So. 2d 1117

(Miss. 1992), in which this Court held that wrongful death and medical negligence were two

separate causes of action, following the logic that “[p]rescription does not begin to run against

one who is ignorant of facts that would entitle him to bring an action.” Sweeney, 642 So. 2d

at 335 (quoting Ayo v. Johns-Manville Sales Corp., 771 F.2d 902 (5th Cir. 1985)). ¶17.

       The County concedes that in Barnes, this Court held that the absence of specific

discovery language in § 11-46-11(3) did not preclude the application of the discovery rule;

however, the County argues that the injury to Punzo’s property was not latent. 733 So. 2d at

204. Further discussion in Sweeney examined the history of discovery rule application in

medical malpractice actions involving latent injuries. Prior to the enactment of § 15-1-36 and

the three-year statute of limitations with a discovery rule provision for latent injuries, the

six-year general statute of limitations applied to medical malpractice claims without a

discovery rule provision. Barnes, 733 So. 2d at 204 (citing Sweeney, 642 So.2d at 333). By

adopting § 15-1-36,

       the Legislature shortened the time period for bringing a medical malpractice
       suit, but adopted a discovery standard for triggering the running of the statute.
       . . . Similarly, when the Legislature amended § 15-1-49 (the general statute of
       limitations), shortening the limitations period from six years to three years, it
       included a discovery provision for latent injuries as a trade-off.

733 So. 2d at 204. Barnes clearly decided that where the one-year statute of limitations

applied, the claim was filed properly when it was filed within one year of the discovery of the

defendant’s negligent conduct. Id. In Barnes, 733 So. 2d at 205, this Court thoroughly



                                               7
described the history of the discovery rule at common law and its application to a variety of

case types, reviewing cases such as Schiro v. Am.Tobacco Co., 611 So.2d 962, 965 (Miss.

1992) (discovery rule as a common law exception), Owens-Ill., Inc. v. Edwards, 573 So.2d

704 (Miss. 1990) (discovery rule exists in case of negligence or products liability cause of

action involving latent disease), Evans v. Boyle Flying Serv., Inc., 680 So.2d 821 (Miss. 1996)

(holding that a notice of claim period did not begin to run until discovery of the injury), Smith

v. Sneed, 638 So.2d 1252 (Miss. 1994) (discovery rule applied in legal malpractice actions),

Tabor Motor Co. v. Garrard, 233 So.2d 811, 814 (Miss. 1970) (discovery rule in statutes of

limitations applied to workers’ compensation case), and Staheli v. Smith, 548 So.2d 1299

(Miss. 1989) (statute of limitations in suit for defamatory material does not begin to run until

reasonable discovery of the material). Remaining consistent with the above cases, this Court

incorporated a discovery rule in actions brought under the MTCA involving latent injuries.

Barnes, 733 So. 2d at 205.

¶18.   In Smith v. Braden, 765 So. 2d 546, this Court reiterated its earlier holding in Barnes

incorporating the discovery rule into actions brought under the MTCA. Given the relatively

short one-year statute of limitations, it is particularly important. Id. When a question of fact

exists as to when the statute of limitations begins run, the issue should be considered by the

trial court. Id. (citing Barnes, 733 So. 2d at 203-06.)

¶19.   In Evans, 680 So. 2d at 827, this Court held it was not reasonable to bar a person’s

cause of action when that person initially had no knowledge that time was running on the

statute. The Evans court found it to be an injustice to prevent a person’s recovery “on a



                                               8
claim, i.e. an injury for which redress is guaranteed by our Constitution and statutory law, by

being barred by a limitation period, in actuality a statute of repose if it were so construed, when

they should not have reasonably known that damage had occurred.” The Evans holding is

similar to and consistent with this Court’s earlier statement in Smith v. Sanders, 485 So.2d

1051, 1052-53 (Miss. 1986):

       There may be rare cases where the patient is aware of his injury prior to the
       [expiration of the limitations period], but does not discover and could not have
       discovered with reasonable diligence the act or omission which caused the
       injury. In such cases, the action does not accrue until the latter discovery is
       made.

¶20.   The County also contends that if the injury was latent, Punzo did not use the required

reasonable diligence to determine the cause of the flood because three years passed between

the first flood and the time Punzo learned from a neighbor of the bridge’s alterations. This

Court maintains that one flood does not create enough notice of an actionable claim’s

existence or of someone’s fault. The second flood was just six months before Punzo’s third

flood and his learning of the bridge alterations. The record indicates that Punzo had completed

the clean up and repair of his house from the damage of the second flood in March of 1998

just a month or so prior to the third flood in September of 1998. Within six months of that

flood he learned of the alleged cause. We find that six months is a reasonable time period to

discover the alleged cause of the harm.

¶21.   Within one year of his discovery of the potential cause of the floods, he instigated

proceedings against the County in compliance with § 11-46-11. Additionally, Punzo testified

that he had written letters to the County’s attorney as early as February 1999, asking for help




                                                9
with the flooding conditions. In Sarris v. Smith, 782 So. 2d 721, 724 (Miss. 2001), this Court

examined the application of the discovery rule to a wrongful death suit, stating:

       Sweeney stands squarely for the proposition that the statute of limitations can
       be tolled until a plaintiff gains actual knowledge of the defendant’s negligent
       conduct even if that knowledge is not gained until years after the death that is the
       basis for the suit. . . . The discovery rule should have been applied to toll the
       statute of limitations, because while Sarris knew that her husband was dead,
       under the facts of this case, she could not reasonably have known that the death
       was the result of negligence.

We have recognized that some instances of discovery require knowledge beyond that of a

layman. Water flow and flood currents are subjects requiring expert knowledge to fully

comprehend. In Donald v. Amoco Production Co., 735 So. 2d 161, 168 (Miss. 1999), we

examined the proposition that a layperson may have limited knowledge, stating, “the discovery

exception may be applied when it is unrealistic to expect a layman to perceive the injury at the

time of the wrongful act.” (citing Smith, 638 So. 2d at 1257).

¶22.   In granting summary judgment dismissing the money damages claims, the trial court

stated that the injury to Punzo was “immediate rather than latent,” so the discovery rule would

not apply; however, the court did not hold a hearing before making that finding of fact .

According to Schiro, genuine disputes as to the ability to discover a latent injury are questions

of fact to be decided by the fact finder, not on summary judgment. 611 So. 2d at 962.

¶23.   In another property damage case, this Court found that when a plaintiff missed the three-

year limitation period by less than two years, then the claim could not be considered “stale,”

especially since all witnesses were most likely still alive and still had fresh memories.

Barnes, 733 So. 2d at 167. The situation is similar in Punzo’s case because the witnesses



                                               10
testified at trial in the injunction phase of the case and appeared to have impaired memory due

to the passage of time.

¶24.   We find the trial court erred in dismissing the money damages portion of Punzo’s

complaint as time barred. We reverse and remand the matter for a full trial on the merits.

       II.    WHETHER THE TRIAL COURT ERRED IN FINDING THAT
              PUNZO FAILED TO PROVE THAT AN INJUNCTION WAS THE
              ONLY EFFECTIVE REMEDY TO SOLVE PUNZO’S FLOODING
              PROBLEMS.

       III.   WHETHER THE TRIAL COURT ERRED IN FINDING THAT
              PUNZO DID NOT SHOW BEYOND A REASONABLE DOUBT
              THAT THE RIGHT TO A MANDATORY INJUNCTION WAS
              NECESSARY AND THAT IRREPARABLE INJURY WOULD
              RESULT UNLESS THE MANDATORY INJUNCTION WAS
              ISSUED.

       IV.    WHETHER THE TRIAL COURT ERRED IN DENYING PUNZO’S
              REQUEST FOR A MANDATORY PERMANENT INJUNCTION.

¶25.   This Court will not disturb a judge’s findings of fact unless they are manifestly wrong.

USPCI of Miss., Inc., 688 So.2d at 786 (citing RC Constr. Co., 622 So.2d at 1255). The trial

court made detailed findings of fact after a trial on the merits and concluded that Punzo did not

sustain the burden of proof required to justify the court’s establishment of a mandatory

injunction against the County. However, the trial court did not rely on recent case law handed

down by this Court on the subject of mandatory injunctions.

¶26.   The trial court cites accurately to three cases, dating 1934, 1971, and 1978. The main

case relied on by the trial court appears to be Thomas v. Miss. Power & Light Co., 170 Miss,

811, 152 So. 269, 271 (1934), in which we held

       Nothing is better settled in this state, and nothing is or ought to be better
       understood, than the rule that a mandatory injunction should never issue unless

                                               11
       the right to it is so clearly and certainly shown that there can be no reasonable
       doubt of its propriety, no probability that the defendant can make any valid
       objection to it and no possibility that its justice can be controverted.

This standard requires more of a showing by the plaintiff than is required by the standard

followed in more recent cases. In Reynolds v. Amerada Hess Corp., 778 So. 2d 759, 765

(Miss. 2000), we stated, “To obtain a permanent injunction, a party must show an imminent

threat of irreparable harm for which there is no adequate remedy at law.” (citing City of Water

Valley v. Trusty, 343 So. 2d 471, 472 (Miss. 1977)). In Reynolds, this Court made no

mention of a requirement of proof beyond a reasonable doubt, which the trial court stated is

the proof required.

¶27.   In Hall v. Wood, 443 So. 2d 834, 841(Miss. 1983), though this Court suggested use of

extreme caution in granting a mandatory injunction, we did not require a showing of proof

beyond a reasonable doubt. We stated, “A mandatory injunction should be ordered where such

is ‘the only effective remedy.’” Id. (quoting Warrior, Inc. v. Easterly, 360 So.2d 700, 704

(Miss.1978); citing Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970)). For further

clarification, we explained,

             Mandatory injunctions should be granted only where that which they
       demand is reasonably practicable. A mandatory injunction requiring “a practical
       impossibility” should never issue. Homes, Inc. v. Anderson, 235 So.2d 680,
       683 (Miss.1970). The expense and hardship to the party enjoined should also be
       considered. That these may be substantial counsels caution and restraint.

Hall, 443 So. 2d at 841. This decision does require that the remedy be practicable.

¶28.   In Pattillo v. Bridges, 247 So. 2d 811 (Miss. 1971), this Court did cite Thomas but not

to the requirement of proof beyond a reasonable doubt. Pattillo declared,



                                              12
       Thomas v. Miss. Power & Light Co., 1934, 170 Miss. 811, 152 So. 269; Miss.
       Power & Light Co. v. McCoglan Hotel, Miss.1934, 152 So. 271, 28 Am.Jur.,
       Secs. 17-22, states that a mandatory injunction is a rather harsh remedial
       process and is not favored by the courts. It is not regarded with judicial favor and
       is used only with caution and in cases of great necessity. The case must be one
       clearly disclosing irreparable injury to the complainant. (233 Miss. at 176, 101
       So.2d at 506).

247 So.2d at 812.

¶29.   The trial court erred in not applying the correct legal standard. We reverse and remand

this case with instructions to the trial court to apply the legal standard as stated in Reynolds,

requiring the requesting party to show an imminent threat of irreparable harm for which there

is no adequate remedy at law, and in keeping with Homes, Inc., a mandatory injunction should

be granted only if reasonably practicable.

                                        CONCLUSION

¶30.   We find the trial court erred in dismissing the money damage claims because the

discovery of a latent injury rule applied to toll the statute of limitations. On the issues

concerning injunctive relief, we find the trial court erred in not applying the current legal

standard for mandatory injunctions. Therefore, we reverse the circuit court’s judgment, and we

remand this case for further proceedings consistent with this opinion.

¶31.   REVERSED AND REMANDED.

     McRAE, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.
PITTMAN, C.J., CONCURS IN RESULT ONLY. COBB, J., DISSENTS WITH
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


       COBB, JUSTICE, DISSENTING:




                                               13
¶32.   In my view, the majority errs on two issues. First, the majority expands and improperly

applies the discovery rule in this MTCA case. Even if the set of facts and circumstances

before us warrant application of the discovery rule, the point in time which the majority finds

to be the proper date from which to calculate the running of the statute of limitations is

illogical on its face. Second, although I agree with the majority’s conclusion that the circuit

court applied the incorrect standard as to Punzo’s injunction claim, in my view it was harmless

error. For the reasons set forth below, I respectfully dissent.

                                I. The Discovery Rule Issue

¶33.   In 1986, Punzo built a house approximately one mile from a bridge. In 1991, Jackson

County modified that bridge, so that the new approach was higher than the old bridge approach.

In 1993, the county placed two culverts in the bridge’s approach to prevent flooding. In 1995,

Punzo’s house flooded for the first time. On March 7, 1998, Punzo’s house flooded for the

second time. On September 12, 1998, during a tropical storm, Punzo’s house flooded for the

third time. Also, on this date, Punzo’s neighbor told him the county had modified the bridge.

On September 27, 1998, during a hurricane, Punzo’s house flooded for the fourth time.

Finally, on September 9, 1999, 8 years after the county modified the bridge, 4 years after his

house flooded for the first time, and 1½ years after his house flooded for the second

time, Punzo notified the county of his claim that the new bridge caused his flooding. On June

11, 2001, during a tropical storm, Punzo’s house flooded for the fifth time.

¶34.   A plaintiff must bring his claim against a county “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.” Miss. Code Ann. § 11-46-11(3) (Rev. 2002). “Generally, mere


                                              14
ignorance of the existence of a cause of action . . . does not prevent the running of the statute

of limitations.”    54 C.J.S. Limitations of Actions § 87 (1987). However, in special

circumstances, the “discovery rule” tolls the statute of limitations until the plaintiff knows or

reasonably should know of his claim. Boyles v. Schlumberger Tech. Corp., 832 So.2d 503,

506 (Miss. 2002). “Application of the discovery rule is a fact-intensive process.” Sarris v.

Smith, 782 So.2d 721, 725 (Miss. 2001).

¶35.   In my view, the discovery rule does not apply under the law and facts in this case. This

Court does not generally apply the “discovery rule” in property damage actions. For example,

in McCain v. Memphis Hardwood Flooring Co.,725 So.2d 788, 789 (Miss. 1998), a

corporation cut an individual’s timber without his consent. The individual did not realize his

timber had been cut until a few years later. Id. at 795. The individual urged this Court to apply

the discovery rule and toll the statute of limitations so that he could bring his claim. Id. at 794.

This Court refused to apply the discovery rule, stating:

       This Court has applied the discovery rule where the plaintiff will be precluded
       from discovering harm or injury because of the secretive or inherently
       undiscoverable nature of the wrongdoing in question. Or . . . the discovery rule
       may be applied when it is unrealistic to expect a layman to perceive the injury
       at the time of the wrongful act. An owner of trees requires no unique expertise
       to realize when his trees have been taken without his permission. Neither is the
       taking of such trees without consent of an owner a secretive or inherently
       undiscoverable act which justifies the discovery rule. Thus, the application of
       a judge-made discovery rule would be inappropriate in the instant case.

Id.

¶36.   This case is similar to McCain. First, both McCain and this case involve damage to

property; McCain involved timber cutting and this case involves house flooding. Second, both



                                                15
McCain and this case involve a one-year statute of limitations; McCain involved Miss. Code

Ann. § 15-1-33, and this case involves Miss. Code Ann. § 11-46-11(3). Third, neither McCain

nor this case involve concealed injuries; timber cutting and house flooding are readily visible.

Finally, neither McCain nor this case involve the need for specialized knowledge to perceive

the injury; a layman can deduce that timber once present is now gone and that a house

previously dry is now flooded. Therefore, as in McCain, the discovery rule should not apply.

¶37.   To claim benefit of the discovery rule, a plaintiff must be reasonably diligent in

investigating the circumstances surrounding the injury. The focus is upon the time that a

person discovers, or should have discovered by the exercise of reasonable diligence, that he

probably has an actionable injury. Smith v. Sanders, 485 So.2d 1051 (Miss. 1986). There is

no indication that Punzo took any investigative action whatsoever, and his discovery that there

may have been an actionable injury was the result of a conversation with his neighbor. The

intent of the discovery rule is to protect potential plaintiffs who cannot, through reasonable

diligence, discover injuries done to them. In this case, the injury, flooding, was quite apparent,

and there is no indication Punzo used reasonable diligence to investigate the flooding.

¶38.   This Court should not apply the discovery rule in actions where the plaintiff does not

investigate his claim until a third-person notifies him of his claim. However, assuming for the

sake of argument that the discovery rule does apply, Punzo reasonably should have discovered

his claim no later than the time of the second flood, months before his neighbor notified him

of a possible claim.

                                   II. The Injunction Issue



                                               16
¶39.   The majority holds that the circuit court applied the incorrect injunction standard and

reverses and remands with instructions as to Punzo’s injunction claim. I agree that the circuit

court applied the incorrect legal standard. However, I believe the circuit court’s error was

harmless error in this case.

¶40.   The circuit court found that Punzo’s house had flooded five times since the county

modified the bridge; however, the circuit court also found that Punzo’s expert testified that the

modified bridge had sufficient flow for a 100-year storm; that the flooding was probably

caused by the intersection of two rivers further downstream and/or another bridge; and that

“even if the bridge was extended and the fill removed, under similar weather conditions,

Punzo’s land may well flood again.” Also, the circuit court found that the new bridge was safer

for vehicles than the old bridge.

¶41.   This Court reviews a circuit court’s decision to deny an injunction for abuse of

discretion — that is, we defer to the circuit court’s decision and will not reverse the decision

unless it was unreasonable and unduly prejudicial. Electronic Data Sys. Corp. v. Mississippi

Div. Medicaid, 853 So.2d 1192, 1208 (Miss. 2003).

¶42.   A circuit court should issue an injunction if the plaintiff proves by a preponderance of

the evidence that:

       (1)    the plaintiff will be irreparably harmed if the injunction does not issue;
       (2)    the plaintiff’s harm outweighs the defendant’s harm if the injunction does
              issue;
       (3)    the public interest, i.e. the rights of third persons will be served by the
              injunction; and
       (4)    the plaintiff is likely to prevail on the merits.




                                               17
Electronic Data Sys. Corp, 853 So.2d at 1207-08; State v. Myers, 244 Miss. 778, 146 So.2d

334 (1962).

¶43.   In this case, the circuit court’s application of a “beyond a reasonable doubt” standard,

while incorrect, is harmless because Punzo did not even prove by a preponderance of the

evidence that he would be irreparably harmed if the injunction did not issue. Punzo’s own

expert testified that even if the bridge was extended and the fill removed, under similar weather

conditions, Punzo’s land may well flood again. Further, Punzo did not prove that the public

interest would be served by the injunction: to the contrary, there was testimony that the new

bridge is safer for vehicles than the old bridge. Finally, Punzo did not show that he would

likely prevail on the merits; in fact, the circuit court found that Punzo’s tort claim was barred

by the statute of limitations. Therefore, it was not reversible error for the circuit court to deny

Punzo’s request for an injunction.

¶44.   Because I would affirm the circuit court’s grant of summary judgment, I respectfully

dissent.




                                                18
