Opinion
No. 2000-CA-00877-SCT.
September 13, 2001. Rehearing Filed October 12, 2001.
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. R. KENNETH COLEMAN, DATE OF JUDGMENT: 05/01/2000
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: GERRY M. BLAKER, II
ATTORNEY FOR APPELLEE: THAD J. MUELLER
EN BANC
¶ 1. This appeal arises from the grant of a motion to dismiss pursuant to Miss. R. Civ. P. 12(b)(6) in favor of the New Albany Separate School District ("New Albany") and against Patti Roberts ("Roberts") on May 1, 2000. Roberts was allegedly injured on the grounds of the New Albany Middle School on August 8, 1998. Subsequently, on August 3, 1999, Roberts sent a timely "Notice of Claim" in the form of a letter to Kenneth Quinn, superintendent of the New Albany school district. Then, on December 6, 1999, Roberts filed a complaint in the Union County Circuit Court against New Albany. Shortly thereafter, New Albany filed an answer setting out its defenses.
¶ 2. On December 28, 1999, New Albany filed a motion to dismiss contending that the statute of limitations had expired and Roberts's claim was now time barred. Circuit Judge R. Kenneth Coleman held a hearing on the matter on April 4, 2000, and issued an order granting the motion on May 1, 2000. In his order, the trial judge held that the March 1999 amendment to Miss. Code Ann. § 11-46-11(3) was not to be applied retroactively to a cause of action that accrued prior to the amendment's passage. As such, Roberts's complaint was filed slightly less than one month overdue and thus, barred. From that order, Roberts now appeals and asserts that the notice of claim amendment to § 11-46-11(3) of the Mississippi Tort Claims Act (MTCA) should be applied retroactively to a claim that accrued prior to the amendment when the notice of claim and complaint were filed after the date of amendment.
FACTS
¶ 3. While Roberts was attending a yard sale at the New Albany Middle School, she stepped into a small hole and fractured her ankle (a left distal fibular fracture). As a result of the accident, she required surgery on her ankle and extensive physical therapy. In her complaint, Roberts alleges that there were no warnings concerning the hole and this failure to warn amounts to negligence. Therefore, Roberts filed suit seeking damages for her injuries.
STANDARD OF REVIEW
¶ 4. We apply the de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith , 749 So.2d 63, 65-66 (Miss. 1999). As such, we sit in the same position as did the trial court. Furthermore, statutory interpretation is a question of law, and we also review questions of law de novo. Donald v. Amoco Prod. Co ., 735 So.2d 161, 165 (Miss. 1999). Therefore, we are not required to defer to the trial court's judgment or ruling. In order to affirm the granting of dismissal, we must decide that Roberts failed "to state a claim upon which relief can be granted." Miss. R. Civ. P. 12(b)(6).
DISCUSSION
WHETHER THE NOTICE OF CLAIM AMENDMENT TO § 11-46-11(3) OF THE MTCA SHOULD BE APPLIED RETROACTIVELY TO A CLAIM THAT ACCRUED PRIOR TO THE AMENDMENT WHEN THE NOTICE OF CLAIM AND COMPLAINT WERE FILED AFTER THE EFFECTIVE DATE OF AMENDMENT.
¶ 5. To begin, it is important to understand how the March 25, 1999, amendment affected the statute of limitations. In order to understand the impact of the change, one must be able to examine the change itself. Section 11-46-11(3) (Supp. 1998) of the Mississippi Code originally read in pertinent part:
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. . . .
In March 1999, the statute was amended and reads as follows:
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. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant's receipt of notice of denial of claim from the governmental entity. All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only. For purposes of determining the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim shall be effective upon delivery by the methods statutorily designated in this chapter. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.
Miss. Code Ann. § 11-46-11 (3) (Supp. 2001) (emphasis added). The notes following the amendment stated the following:
Amended by Laws 1999, Ch. 469, § 1, eff. from and after passage (approved March 25, 1999).
¶ 6. Although it appears to be a significant change, the amendment really only made two alterations. First, the time of the tolling period was extended for suits involving non-agency, political subdivisions, and second, the method and timing of notice and denial were more specifically laid out. The present case deals with the first revision. Specifically, the question is whether this extended tolling period is applicable to a case that accrued prior to its enactment when notice and suit were filed after the amendment's passage. The trial court held that the pre-amendment version was proper in the present case and, accordingly, that Roberts had ninety-five (95) days, or until November 11, 1999, to file her complaint. Under the amended statute, Roberts could only file a complaint after receipt of a denial of claim or the passage of 120 days, and thus, her complaint was timely filed. In essence, we are being asked which tolling period applies.
¶ 7. In general, this Court has held that statutory amendments are prospective only, unless a contrary intention is manifested by the clearest and most positive expression. Board on Law Enforcement Officer Standards Training v. Voyles , 732 So.2d 216, 219 n. 1 (Miss. 1999). See also Fortune v. Lee County Bd. of Supervisors , 725 So.2d 747,752 (Miss. 1998) (citing statutes in general). "A statute will not be construed to be retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is." Hudson v. Moon , 732 So.2d 927, 931 (Miss. 1999) (citing Anderson v. Jackson Municipal Airport Auth ., 419 So.2d 1010, 1027 (Miss. 1982)). We dealt with the effect of amendments and changes on statutes of limitations in McClendon v. Boyd Constr. Co ., 224 Miss. 366, 78 So.2d 796, 797 (1955): "If [the Legislature] had intended that the act be retroactive, we must assume that it would have said so. We construe the act as written."
¶ 8. In Jones v. Baptist Mem'l Hosp.-Golden Triangle, Inc ., 735 So.2d 993, 998 (Miss. 1999), this Court held that "[i]f the statutory language mandates that the statute is to apply from and after passage, it is not to be applied retroactively to causes of action which accrued prior to passage of the statute." (emphasis added). In Jones , the one-year statute of limitation and the notice of claim pursuant to the Sovereign Immunity Act were not in effect at the time of the accrual of the cause of action. Id . Jones filed his lawsuit against the governmental entity after the passage of the act and the claim was dismissed by the lower court. Id . This Court found that Jones was not retroactively subject to the Act's statute of limitation and the requirement to file a notice of claim since the pertinent accrual date of the action was prior to the enactment of the statutes at issue. Id . However, this Court upheld the lower court's dismissal on other grounds. Id . See also Sparks v. Kim , 701 So.2d 1113 (Miss. 1997) (no retroactive application to Miss. Code § 11-46-9(m) since the section stated that it is effective from and after passage).
¶ 9. Here, Roberts was injured at the middle school on August 8, 1998. She forwarded a notice of claim pursuant to the statute on August 3, 1999. A complaint was filed against New Albany on December 6, 1999. At the time of the injury the applicable statute, Miss. Code Ann. § 11-46-11(3), had a one-year statute of limitations which was tolled for ninety-five (95) days by filing a notice of claim. In Roberts's case, the complaint would have to be filed by November 11, 1999, pursuant to the pre-amendment statute. In March 1999, Miss. Code Ann. § 11-46-11(3) was amended and increased the tolling period to one-hundred twenty (120) days for claims against a municipality, county or other political subdivision. Roberts filed her notice and complaint after the effective date of the amended statute. Under the amended statute, Roberts timely filed her complaint. The amended statute clearly contained language that stated that the amendment is "effective from and after passage" and was approved March 25, 1999.
¶ 10. This Court follows the general rule that statutory amendments are prospective only and not retroactive. The exception to this general rule occurs only when there is contrary intention manifested by a clear and affirmative expression. In addition, in Jones this Court held that specific statutory language, which states that a statute is to apply from and after passage, is not to be applied retroactively to causes of action which accrued prior to passage of the statute. The injury occurred on August 3, 1998, thus, the 1998 pre-amendment statute is applicable under the facts of this case. Therefore, Roberts is procedurally barred from suing New Albany, and the motion to dismiss was properly granted by the trial court.
¶ 11. The critical issue on appeal concerned the application of the correct statute to determine the tolling of the statute of limitations. Roberts asserted other claims based upon retroactive application of the amended statute. Since the pre-amendment statute dictated the outcome in this case, this Court need not address the issues further.
CONCLUSION
¶ 12. For these reasons, the judgment of the Union County Circuit Court is affirmed.
¶ 13. AFFIRMED.
PITTMAN, C.J., SMITH, MILLS AND COBB, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS AND McRAE, P. JJ. AND WALLER, J.
¶ 14. With respect to my colleagues in the majority, I dissent believing the statute in question to dictate reversal of the trial court. As the majority correctly points out, we are essentially being asked which tolling period applies. However, I feel the majority errs in its analysis and affirmance of the lower court.
¶ 15. We dealt with the effect of amendments and changes on statutes of limitations in McClendon v. Boyd Constr. Co ., 224 Miss. 366, 78 So.2d 796 (1955), and Kilgore v. Barnes , 508 So.2d 1042, 1044-45 (Miss. 1987). "If [the Legislature] had intended that the act be retroactive, we must assume that it would have said so." McClendon , 78 So.2d at 797. In Kilgore , we reiterated the general rule and held that "we may not give retroactive effect to newly enacted statutes of limitations shortening the period within which a claim arising prior to enactment must be brought." Kilgore , 508 So.2d at 1044-45 (citing Perkins v. State , 487 So.2d 791, 792 (Miss. 1986); Garrett v. Beaumont , 24 Miss. 377, 379 (1851); and Reynolds v. Logan Charter Serv. Inc ., 565 F. Supp. 84, 86 (N.D.Miss. 1983)). At first glance, this language appears to dictate that amendments and changes to statutes of limitations are not to be given retroactive effect. However, the case goes on to state that "[o]n the other hand, most other jurisdictions recognize the authority of legislatures to enlarge periods of limitation with respect to existing claims, that is, claims not barred at the time of elongation." Id . (citing Dan River, Inc. v. Adkins , 349 S.E.2d 667, 669 (Va.Ct.App. 1986); Klimmek v. Independent Sch. Dist. No. 487 , 299 N.W.2d 501, 502-03 (Minn. 1980); Del Monte Corp. v. Moore , 580 P.2d 224, 225 (Utah 1978); Sullivan v. Spicer , 335 A.2d 632, 633 (R.I. 1975); and generally Annotation, Validity and Applicability To Causes of Action Not Already Barred, Of a Statute Enlarging Limitation, 79 A.L.R.2d 1080 (1961 Supp. 1986)). This Court went on to state that this idea was "consistent with our general principle that an act remedial in its character embraces claims existing when the act was passed." Id . (citing Excelsior Mfg. Co. v. Keyser , 62 Miss. 155, 158 (1884)). There are also two considerations in the present case that are in harmony with this latter idea from Kilgore . In the case sub judice, the amendment did not shorten the period within which a claim must be brought or affect the statute's basic time limitation, only as it applies to a notice of claim. Even though the general rule seems to indicate that statutes are not to be applied retroactively to causes of action accruing prior to a change, we should look to the past treatment of notice of claim actions as well as the language of the amendment to properly decide the present issue.
¶ 16. In previous Miss. Code Ann. § 11-46-11(3) notice of claim challenges, we have consistently held that "[w]hen the simple requirements of the Act have been substantially complied with, jurisdiction will attach for purposes of the Act." Reaves ex rel. Rouse v. Randall , 729 So.2d 1237, 1240 (Miss. 1998). See also City of Pascagoula v. Tomlinson , 741 So.2d 224 (Miss. 1999). In fact, we have held that
[N]otice is sufficient if it substantially complies with the content requirements of the statute . . . In general, a notice that is filed within the period, informs the municipality of the claimant's intent to make a claim and contains sufficient information which reasonable affords the municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it.
Carr v. Town of Shubuta , 733 So.2d 261, 263 (Miss. 1999) (citing Collier v. Prater , 544 N.E.2d 497, 498 (Ind. 1989)). These cases, however, dealt with deficiencies in the content of the notices of claim, and the present case concerns shortcomings in the timeliness. More on point, we have previously held in examining the amended version of Miss. Code Ann. § 11-46-11(3) that "the dismissal of a lawsuit based on a failure to comply with the waiting period is a disproportionate remedy and contrary to the purposes of the Legislature in enacting the Tort Claims Act." Tomlinson , 741 So.2d at 228. Although Tomlinson was a problem of filing too early and the present claim was possibly too late, the spirit is the same; a case should not fail merely because it is not in strict compliance with the statute. The only exception to this idea is if the statute specifically states that the claim should be barred.
¶ 17. Since we are compelled to now examine the language of the statute in question, it is important to keep in mind the rules of statutory construction.
The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction, but where it is ambiguous the court, in determining the legislative intent, may look not only to the language used but also to is historical background, its subject matter, and the purposes and objects to be accomplished.
Clark v. State ex rel. Miss. State Med. Ass'n , 381 So.2d 1046, 1048 (Miss. 1980). In examining the language of Miss. Code Ann. § 11-46-11(3), the reader will notice that the date of the tortious conduct is the key consideration as to the general one-year statute of limitations, and there is no question that Roberts filed her notice of claim within that one-year limit. Unlike the general limitation, both the original § 11-46-11(3) and the amended version have the date of the notice of claim as paramount in determining when the complaint must be filed; nowhere within the notice portion of the statute is the date of accrual mentioned. As such, the provisions in effect at the time of filing the notice of claim should be controlling. Therefore, Roberts's complaint was timely filed, and the trial judge erred in dismissing her claim.
¶ 18. In addition to finding the amendment applicable to the present situation and the spirit of the statute dictating the arrived at outcome, there are practical reasons supporting my dissent. Roberts's actions were an obvious, good faith attempt at trying to abide by the statutory guidelines; she waited because that is what she felt was the proper course of action. Furthermore, there was nothing to contradict this idea. As new volumes and supplements are published, attorneys are instructed by the publisher to discard the old titles. Accordingly, when Roberts went to the Mississippi Code to study on how to proceed, she would have only found the amended version of § 11-46-11(3). We should not punish now those whom attempted to be studious. Finally, the facts of this case are very specific, and situations similar to the present predicament are not likely to come before a court often.
¶ 19. The MTCA was enacted to allow citizens to exercise claims against state entities given the proper circumstances. In essence, the MTCA opened the courthouse doors to a cause of action citizens were previously unable to pursue, and the March 25, 1999, amendments enabled plaintiffs greater opportunity to follow through with their claims. We should refuse now to shut those doors for minor deficiencies. The spirit of the MTCA dictates that Roberts's claim be heard on the merits even if subject to the guise of the pre-amended § 11-46-11(3). That said, the March 25, 1999, amendment is applicable to Roberts's claim. As such, the complaint was timely filed, and the case should be allowed to proceed. Therefore, I dissent believing that the order of the Union County Circuit Court should be reversed and the case remanded for further proceedings.
BANKS AND McRAE, P. JJ., AND WALLER, J., JOIN THIS OPINION.