City of Tupelo v. McMillin
| Docket Number: | 2014-CA-01378-SCT Linked Case(s): 2014-CA-01378-SCT |
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| Oral Argument: | 12-15-2015 | |
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| Supreme Court: | Opinion Link Opinion Date: 04-14-2016 Opinion Author: Coleman, J. Holding: DA-Reversed and rendered; CA-Affirmed. |
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| Additional Case Information: |
Topic: Tort claims act - Immunity - Section 11-46-9(1)(h) - Section 73-59-17 - Issuance of building permits - Licensed applicants - Administrative act - Clerical mistake - Licensed contractor - Statute of limitations - Section 11-46-11(3)(a) - Doctrine of equitable estoppel - Damages Judge(s) Concurring: Waller, C.J., Dickinson, P.J., and Beam, J. Dissenting Author : Kitchens, J. Dissent Joined By : King, J. Concur in Part, Concur in Result 1: Randolph, P.J., Lamar and Maxwell, JJ., without separate written opinion Procedural History: Bench Trial |
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| Trial Court: |
Date of Trial Judgment: 08-28-2014 Appealed from: LEE COUNTY CIRCUIT COURT Judge: HON. JAMES SETH ANDREW POUNDS Disposition: Awarded appellees' damages to repair the home and legal fees related to another case Case Number: CV11-218(P)(L) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | City of Tupelo, Mississippi |
MARTHA BOST STEGALL, JOHN S. HILL |
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| Appellee: | Terry Y. McMillin, M.D. and Leslie Susan McMillin | BRADLEY TRUETT GOLMON, STACEY WOODRUFF GOLMON | ||
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| Topic: | Tort claims act - Immunity - Section 11-46-9(1)(h) - Section 73-59-17 - Issuance of building permits - Licensed applicants - Administrative act - Clerical mistake - Licensed contractor - Statute of limitations - Section 11-46-11(3)(a) - Doctrine of equitable estoppel - Damages |
| Summary of the Facts: | In 2006, Dr. Terry McMillin and his wife, Leslie McMillin, purchased a new home. Displeased with contractor Jamie Ewing’s failure to respond to their repair requests, plus their discovery of a document – a blue card – noting a failed home inspection and listing the name of a different contractor as the contractor responsible for their home’s construction, the McMillins began the process of unraveling just who was responsible for building their new home. Ultimately, the case stems from an error by the City of Tupelo’s Permit Manager Marilyn Vail in handling the withdrawal of one licensed contractor and mistakenly substituting the name of another licensed contractor, when in actuality, a licensed contractor was not working on the home. The circuit court held a bench trial and awarded $9,319.23 in damages to repair the home and $105,894.39 in legal fees related to another case involving the construction but denied the McMillins’ request for attorneys’ fees in the instant case. The City appeals, and the McMillins cross-appeal. |
| Summary of Opinion Analysis: | Issue 1: Immunity The City argues that it is immune from liability pursuant to section 11-46-9(1)(h). Additionally, the City argues that the McMillins presented no proof that Vail violated section 73-59-17. The circuit court cited section 73-59-17 to provide the “statutory duty” the City has to “ensure that all builders of residential property within the [c]ity limits be licensed.” The statute requires that the person responsible for issuing permits “shall refuse to issue a permit” unless the applicant is licensed. When the permit for the residence was first issued, the applicant Guyton was licensed; therefore, the City properly issued the license under the statute. The statute does not cover the situation which occurred here - what should happen when a valid permit already has been issued, but the licensed applicant pulls his license for the permit. Thus, there is no statutory basis to support any duty to the McMillins that Vail and the City did not satisfy. According to the circuit court, the City was entitled to “qualified sovereign immunity by Section 11-46-9(1)(h).” An administrative act is arbitrary and capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of any agency expertise. As the circuit court pointed out, Vail’s inclusion of Deas’s name on the replacement blue card was a mistake. The chancery court also recognized that the City’s inclusion of Deas was the result of a clerical mistake. Vail’s inclusion of Deas’s name was a genuine mistake that does not rise to the level of arbitrary and capricious behavior. The circuit court erred also in finding that the City knew Ewing was not licensed and did not have a valid permit while construction was ongoing, when the evidence is that at no point until well after construction was completed did it come to light that there was not a licensed contractor on the residence. The undisputed proof is that Vail, though aware that Ewing was unlicensed, did not know that the permit lacked a licensed contractor at any time until after the construction was completed, since she thought Deas took over responsibility for the permit. Further, Vail did not report Ewing to the Board of Contractors because, in her mind, Ewing’s construction projects were being overseen by a licensed contractor, and then Ewing became licensed, so there was no need to report Ewing. Therefore, the City was immune from liability. Issue 2: Statute of limitations The City also argues that the MTCA’s one-year statute of limitations found in section 11-46-11(3)(a) bars the McMillins’ complaint. The McMillins filed their initial Notice of Claim in August 2007; they did not file suit. Their second Notice of Claim was filed on March 17, 2011, with suit then filed on October 13, 2011. For the doctrine of equitable estoppel to apply to a statute of limitations, inequitable or fraudulent conduct must be established. Vail’s listing of Deas as the residence’s licensed contractor and her subsequent actions, including the memos placed in the permit file, were the result of a mistaken belief. There is no proof in the record, much less proof by a preponderance of the evidence, that the City or Vail knew or had reason to know that its actions or inactions would result in the McMillins’ claims or suits being barred by a statute of limitations. Thus, the McMillins’ claims were barred by the statute of limitations. Issue 3: Damages The circuit court’s award of all damages, including the attorneys’ fees, is reversed. |
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