Raymond DUNCAN, a minor, by Ester DUNCAN, adult mother and next friend
v.
Mrs. Lynn CHAMBLEE and Leake County School District.
Supreme Court of Mississippi.
*947 Thomas L. Booker, Jr., Laurel G. Weir, Philadelphia, Attorneys for Appellant.
Dexter C. Nettles, Jr., Carthage, Attorney for Appellees.
EN BANC.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. This case came to this Court as an appeal of Raymond Duncan, a minor, by his mother Ester Duncan from an adverse ruling of the Circuit Court of Leake County. The court dismissed the Leake County School District and its teacher, Ms. Lynn Chamblee, under Miss.R.Civ.P. 12(b)(6).
¶ 2. On January 20, 1999, this Court granted Duncan's Motion to Voluntarily Dismiss Leake County School District With Prejudice under Mississippi Rule of Appellate Procedure (M.R.A.P.) 42(b). Thus, we must only decide whether the dismissal as to Chamblee by the trial court was proper.
¶ 3. We hold that Duncan failed to state a claim upon which relief can be granted because she alleged that Chamblee was acting within the course and scope of her employment. Thus, Miss.Code Ann. § 11-46-7(2) (Supp.1998) mandates that Chamblee cannot be held personally liable. The circuit court is affirmed, albeit for reasons other than those relied upon by the circuit judge.
FACTS
¶ 4. On April 5, 1996, Raymond Duncan, a minor, by next friend, Ester Duncan, his mother, filed a Complaint against Ms. Lynn Chamblee, a teacher and employee of the Leake County School District, and against the Leake County School District (hereinafter as the "School"). Duncan alleges that on February 27 and 28, 1996, he was physically injured when Chamblee administered excessive corporal punishment to him while in the course and scope of her employment and in the furtherance of the business of Leake County School District. On May 3, 1996, the Defendants, Chamblee and Leake County School District, filed their Answer, in which one of the affirmative defenses raised was Duncan's failure to provide the ninety (90) day notice of claim as required by Miss.Code Ann. § 11-46-11(1) (Supp.1998).
¶ 5. Thereafter, discovery was had over the next year by both parties in the form of interrogatories, requests for admissions and documents, etc. During discovery, Duncan received a copy of the School's Policy Manual, which outlines the official school policy on corporal punishment, as well as his disciplinary records. Duncan also learned that the School had a liability insurance policy for $1 million. The Defendants received Duncan's hospital records during discovery.
¶ 6. The Defendants filed Motions for Continuances on three separate occasions *948 which were granted in order to complete discovery. Finally, on April 9, 1997, the Defendants first filed a Motion to Dismiss on sovereign immunity grounds. Due to scheduling conflicts and other matters, the Defendants refiled the Motion to Dismiss on February 27, 1998, again raising sovereign immunity as an absolute defense for Duncan's failure to comply with the notice of claim provisions of Miss.Code Ann. § 11-46-11(1) and (2).
¶ 7. A hearing was held on March 9, 1998, and the trial judge heard arguments on the Motion to Dismiss. On March 25, 1998, the trial judge entered an Order Sustaining the Motion to Dismiss, and Final Judgment was entered on April 1, 1998.
¶ 8. Aggrieved, Duncan appealed this matter to this Court on April 15, 1998, and raised the following issues:
I. THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT CHAMBLEE.
II. THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT LEAKE COUNTY SCHOOL DISTRICT.
III. THE DECISION OF THE LOWER COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND NOT SUPPORTED BY ANY LAW OR EVIDENCE.
¶ 9. However, under M.R.A.P. 42(b), this Court granted Duncan's Motion to Voluntarily Dismiss Leake County School District on January 20, 1999, with prejudice. Therefore, Issue II as raised by the Appellant Duncan is moot and will not be addressed.
STANDARD OF REVIEW
¶ 10. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County,
¶ 11. When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Butler v. Board of Supervisors for Hinds County,
DISCUSSION OF LAW
I. WHETHER THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT CHAMBLEE.
and
III. WHETHER THE DECISION OF THE LOWER COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND NOT SUPPORTED BY ANY LAW OR EVIDENCE.
¶ 12. Not at issue here are the notice of claim provisions, Section 11-46-11(1) and (2), because Duncan chose to voluntarily dismiss the sovereign School with prejudice.[1] Therefore, the issue of whether Duncan substantially complied with the pre-suit notice of claim requirements of the act is no longer before the Court.
¶ 13. Because Chamblee is now the only remaining defendant/Appellee before the Court, we must determine whether Duncan has stated a claim upon which relief *949 may be granted. In other words, we must decide whether Chamblee was acting within the course and scope of her employment at the time of the alleged tort(s). If so, Chamblee is protected by the MTCA just as the governmental entity (see discussion below). If not, Chamblee can be sued in an individual capacity.
¶ 14. Duncan argues that the trial court improperly dismissed Chamblee pursuant to the notice of claim provisions of Miss. Code Ann. § 11-46-11, because assault and battery are intentional torts for which no defendant can claim immunity. Duncan's complaint however only alleged gross negligence. For this proposition, Duncan cites Webb v. Jackson,
As stated in McFadden v. State,542 So.2d 871 (Miss.1989), as follows:
When an individual who is a state government official is named as a defendant in a civil action, our law thus directs that he or she enjoy
no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official has no immunity when sued upon a tort that has nothing to do with his official position or decision-making function and has been committed outside the course and scope of his office.
McFadden,
¶ 15. Despite being correct statements of law at the time, these cases are pre-tort claims act and are thus not controlling. The Mississippi Tort Claims Act ("MTCA") provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a tort suit.[2] Miss.Code Ann. § 11-46-7(1) (Supp.1998); L.W. v. McComb Separate Mun. Sch. Dist.,
(2) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.
Miss.Code Ann. § 11-46-7(2) (Supp.1998) (emphasis added).
¶ 16. The MTCA waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees from and after October 1, 1993, for political subdivisions. Miss.Code Ann. § 11-46-5(1) *950 (Supp.1998); Chamberlin v. City of Hernando,
¶ 17. Here, the trial judge cited City of Jackson v. Lumpkin,
¶ 18. More importantly, Duncan's complaint alleges that "Mrs. Lynn Chamblee was the employee of Leake County School District acting in the scope of her authority and in furtherance of the business of Leake County School District." Thus, by Duncan's own allegations, Chamblee was acting within the course and scope of her employment with the School when the alleged torts occurred. Such is fatal to Duncan's argument here because Miss.Code Ann. § 11-46-7(2) states:
(2) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties....
Miss.Code Ann. § 11-46-7(2) (Supp.1998) (emphasis added).[3] Further, Duncan's complaint does not allege that Chamblee's conduct constituted "fraud, malice, libel, slander, defamation, or any other criminal offense" within the meaning of § 11-46-7(2). Cf. McGehee v. DePoyster,
¶ 19. The dissent argues that this case is strictly a notice pleading case and that, as such, this Court should allow Duncan 30 days to amend her complaint because the trial court dismissed on jurisdictional grounds and not on pleading grounds. Dissent at 951-952. The dissent also asks, "How should Duncan have known to amend his [sic] complaint when the issue in the failure to state a claim dismissal action was notice rather than whether the phrase `assault and battery' was used?" Id. at 953.
¶ 20. The problem, however, with the dissent's argument is that it is at odds with our cases applying Rule 15(a). In Sligh v. First Nat'l. Bank,
Under Rule 15(a), the court's dismissal of their complaint for failure to state a claim for which relief can be granted afforded the Slighs an automatic right to amend within thirty days. Had they done so, their amended complaint would have been accepted. However, because they failed to exercise that right by filing an amended complaint, we find this assignment of error to be without merit.
Id. Thus, because Duncan failed to file an amended complaint within the 30 days, she *951 has failed to exercise that right under the rule.
¶ 21. Furthermore, "[u]nder Rule 15 it is wholly irrelevant that a proposed amendment changes the cause of action or the theory of the case, or that it states a claim arising out of a transaction different from that originally sued on or that it caused a change in parties." Miss.R.Civ.P. 15 cmt. (1998); See International Ladies' Garment Workers' Union v. Donnelly Garment Co.,
¶ 22. Instead, unfortunately for her, she did not amend because, apparently, litigation strategy dictated otherwise. Duncan cannot argue as the dissent suggests, "How could Duncan have known to amend...," because the trial judge told her that the complaint did not contain an allegation of assault and battery. Had she filed an amended complaint it would have been considered. Instead, Duncan, while on appeal before this Court, voluntarily dismissed with prejudice the School District from her complaint leaving Chamblee as the lone defendant, which necessitates this Court addressing the issue as we have in this opinion. Other than some apparent appellate strategy, this Court has no idea why Duncan chose to dismiss the School District leaving Chamblee as the sole defendant. Hence, to grant Duncan 30 days to amend at this point (as the dissent suggests) would be giving her another opportunity to now do what she wholly failed to utilize initially under Rule 15.
CONCLUSION
¶ 23. Duncan had failed to state a claim upon which relief can be granted because she alleges that Chamblee was acting within the course and scope of her employment. This is fatal to Duncan's claim because Chamblee cannot then be individually liable. Chamblee would then fall within the protection of the MTCA along with her employer/sovereign who was voluntarily dismissed with prejudice by Duncan. Therefore, the judgment of the Circuit Court of Leake County is affirmed.
¶ 24. JUDGMENT AFFIRMED.
PRATHER, C.J., PITTMAN, P.J., MILLS and COBB, JJ., concur.
McRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J., and BANKS, J.
WALLER, J., not participating.
McRAE, Justice, dissenting:
¶ 25. This case should be reversed and remanded. The trial court only reviewed whether it had jurisdiction. Under our previous ruling of City of Jackson v. Lumpkin,
¶ 26. The sole issue before the trial judge was the notice issue under the Mississippi Tort Claims Act. See Miss.Code Ann. § 11-46-11 (Supp.1998). The trial judge dismissed the case based on our case law at the time, i.e., Lumpkin and Carpenter v. Dawson,
¶ 27. Further, Mississippi Rule of Civil Procedure 8 states, in pertinent part:
(a) Claims for Relief. A pleading which sets forth a claim for relief, ... shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, ...
. . . .
(e) Pleading to Be Concise and Direct: Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
See id. The comment to Rule 8 mentions that "[t]he rule allows the claims to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel." See Miss. R. Civ. P. 8 cmt. "`[T]o grant this motion [Rule 12(b)(6)] there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.'" Weeks v. Thomas,
¶ 28. This case deals with the notice pleadings element that "a short and plain statement of the claim" be made. Further, as the aforementioned law invites, notice pleadings allow development of issues in discovery. Such occurred here. Duncan pled that Chamblee "violently paddled [him] on both days [February 27 and 28, 1996] causing severe and permanent injury to [him]." He further developed his argument in discovery by using the phrase "assault and battery" in his request for admissions as well as in a set of interrogatories and by considering the Discipline Policy found in the Leake County Schools Student Handbook. What more does the majority want stated in notice pleadings-the phrase "assault and battery" in the complaint?
¶ 29. Of pertinence in notice pleadings situations such as the one at bar, Mississippi *953 Rule of Civil Procedure 15 provides in pertinent part:
(a) Amendments.... On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), thirty days leave to amend shall be granted, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires....
See id. The case of Sligh v. First Nat'l. Bank,
¶ 30. This case was dismissed for lack of jurisdiction, which is now moot based on our subsequent rulings. Regardless, jurisdiction is not the issue. The majority has now made this a notice pleadings case. Since the trial court below did not rule on the language of the complaint, we should not be doing it here for the first time. The case should be sent back with instructions to the trial court that the appellant be allowed to amend the complaint. I dissent.
SULLIVAN, P.J., and BANKS, J., join this opinion.
NOTES
Notes
[1] Under Mississippi Rule of Appellate Procedure 42(b), this Court granted Duncan's Motion to Voluntarily Dismiss Leake County School District on January 20, 1999, with prejudice.
[2] Title 11, Chapter 46, Sections 1 et seq. is also commonly referred to as the Mississippi Sovereign Immunity Act.
[3] We note that a 1997 amendment adding a new exemption may have application in future cases with similar allegations. See Miss. Code Ann. § 11-46-9(x) (Supp.1998)(effective July 1, 1997). However, the alleged torts occurred in February of 1996 and suit was filed on April 5, 1996, thus making the new amendment inapplicable here.