Sybil THOMPSON
v.
CITY OF VICKSBURG.
Supreme Court of Mississippi.
*718 Andre Francis Ducote, Wayne E. Ferrell, attorneys for appellant.
Gerald E. Braddock, attorney for appellee.
EN BANC.
McRAE, P.J., for the court.
¶ 1. Sybil Thompson appeals from an order entered on July 27, 2000, by the Warren County Circuit Court denying her motion for reconsideration of a November 25, 1997, order granting summary judgment in favor of the City of Vicksburg. Thompson's attorney submitted a proposed final judgment on January 6, 1998, which the court never entered. No final judgment had ever been entered; and therefore, the trial court's order is reversed pursuant to Rule 58 of the Mississippi Rules of Civil Procedure. Further, under the Tort Claims Act, we no longer require a strict compliance with the notice of claim requirements of that Act. We now require only substantial compliance with the notice of claim procedures. Thus, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶ 2. Sybil Thompson ("Thompson") filed a complaint against the City of Vicksburg ("City") under the Mississippi Tort Claims Act ("MTCA"), Miss.Code Ann. §§ 11-46-1 to -23 (Supp.2001), to recover for personal injuries she sustained in the Vicksburg Police Department building in Vicksburg. While on a visit to the police department, Thompson was directed by employees to a stairwell which led to her destination. As she was descending the stairwell, the hand rail gave way causing her to fall and suffer injuries to her knees, upper back, and neck.
¶ 3. Thompson filed a complaint against City under the MTCA. Later, City filed a motion for summary judgment based on Thompson's failure to strictly comply with the notice requirements of MTCA. The *719 trial court noted that Thompson had substantially complied with the notice requirements under MTCA, however, at that time, we required strict compliance with the notice requirements pursuant to City of Jackson v. Lumpkin,
¶ 4. Subsequent to the entry of the order granting summary judgment to City, we rendered the decisions of Reaves ex rel. Rouse v. Randall,
¶ 5. On March 1, 2000, Thompson's new attorney filed a motion for reconsideration of the order granting summary judgment based upon the changes in the law. On July 27, 2000, the trial court denied the motion stating that the trial court was without jurisdiction because the November 25, 1997, order granting summary judgment was an appealable order to which plaintiff failed to timely file a Motion to Amend pursuant to Rule 52 of Mississippi Rules of Civil Procedure. According to the trial court, since Thompson did not timely file a "Motion to Amend", her case was not pending at the time Reaves and Carr were decided and the rulings therein would not be applied retroactively to her case. On August 17, 2000, Thompson timely filed a notice of appeal from the trial court's order denying her motion for reconsideration.
DISCUSSION
I. WHETHER GRANTING A SUMMARY JUDGMENT MOTION TO THE CITY OF VICKSBURG BY ORDER CONSTITUTED A FINAL JUDGMENT FROM WHICH AN APPEAL COULD HAVE BEEN TAKEN
¶ 6. Whether the trial court's granting of summary judgment was proper is not at issue in the case sub judice. Rather, the primary issue is whether the order granting City's motion for summary judgment constituted a final judgment from which appeal could have been taken. Thompson contends that since the order granting summary judgment was not styled "Judgment" or "Final Judgment," that order was not a final appealable judgment; and therefore, her case was still pending at the time she filed her motion for reconsideration. Thompson concludes that since her case was still pending, her motion for reconsideration was timely filed, and the trial court erred in denying said motion. Alternatively, City argues that an order is not invalid as a final adjudication because it is styled "order" and not "judgment," and that the order granting summary judgment was a final appealable order.
¶ 7. In support of her contention, Thompson relies upon Rule 58 of the Mississippi Rules of Civil Procedure which states, "Every judgment shall be set forth on a separate document which bears the title of `Judgment.' A judgment shall be effective only when so set forth and *720 when entered as provided in M.R.C.P. 79(a)." Miss. R. Civ. P. 58 (emphasis added).
¶ 8. Mullen v. Green Tree Fin.-Corp.,
¶ 9. In Mullen, we further held that a ruling by a trial court was not a final judgment even though it was "treated as a judgment, as reflected by its enrollment on the Minutes of the County Court" and the "judge contemplated that a judgment was incorporated [sic] within the Court's ruling... as the last paragraph of the Ruling goes beyond that decision reached" to order an express action. Id. at 12.
¶ 10. The document in issue in Mullen was not an order granting summary judgment but rather a ruling of the court responding to a declaration of replevin. Id. at 11. Like the ruling in Mullen, the order granting summary judgment here was entered into the minutes and court docket of the trial court. The trial court in Mullen held that the ruling was not a final judgment. Id. at 12. In keeping with Mullen, we find that the order granting summary judgment did not constitute a final judgment from which appeal could have been taken.
¶ 11. We have previously reinstated an appeal which had been dismissed for not being timely filed on the basis that no final judgment was entered. Roberts v. Grafe Auto Co.,
II. WHETHER THE TRIAL COURT ERRED IN HOLDING THOMPSON'S MOTION FOR RECONSIDERATION *721 AS UNTIMELY FILED.
¶ 12. As discussed above, Thompson's motion for reconsideration was timely filed since her case was still pending due to the trial court's failure to enter final judgment. Therefore, none of City's arguments have merit. The City argues that the time limits have expired. However, the time limits have not yet begun to run since no judgment has ever been entered. Consequently, the trial court erred in holding the motion for reconsideration was untimely filed.
III. WHETHER SUBSEQUENT CHANGES IN THE LAW ARE TO BE APPLIED RETROACTIVELY ONLY TO CASES ON APPEAL
¶ 13. The trial court granted summary judgment for the City after finding that while Thompson had substantially complied with the notice provisions of the MTCA, she was required to meet strict compliance notice provisions pursuant to City of Jackson v. Lumpkin,
¶ 14. As noted in the preceding discussion, Thompson claims that at the time Reaves and Carr were decided, her case was still pending because no final judgment had been entered. Therefore, the new holding should apply retroactively to her case. Alternatively, City argues that changes in law are applied retroactively only to cases on appeal, and since the order granting summary judgment was not on appeal, the new law should not apply retroactively to Thompson's case.
¶ 15. The law is quite clear regarding retroactive application of judicially articulated rulings. Retroactive application is not limited to pending appeals, as stated by City, but also applies to cases awaiting trial. We have held consistently that "judicially enunciated rules are applied retroactively." Anderson v. Anderson,
¶ 16. We have clearly held that newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation. In the case sub judice, the order granting summary judgment was not a final judgment; no final judgment has ever been entered. This case was still pending at the time Thompson filed her motion for reconsideration, therefore, the new standard announced in Reaves and Carr applies retroactively.
CONCLUSION
¶ 17. The order granting summary judgment to City was not a final order from which appeal could have been taken. *722 Thompson's motion for reconsideration was not untimely filed. Finally, the change in the notice requirement announced in Reaves and Carr is applied retroactively to this case since it was still pending at the time they were published. For these reasons, the trial court's order denying Thompson's motion for reconsideration is reversed, and this case is remanded for further proceedings consistent with this opinion.
¶ 18. REVERSED AND REMANDED.
PITTMAN, C.J., DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. SMITH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J.
SMITH, P.J., Dissenting.
¶ 19. Because the majority holds that a summary judgment order is not a final order, I dissent. Finality serves an important function in trial proceedings. Without it, cases would remain in the court system forever, and justice would never be served. The case at bar illustrates this principle. It is my opinion that Sybil Thompson's appeal is time barred. While it is regrettable that this would leave Thompson with no recourse, to do otherwise would create a ridiculous judicial backlog. I would affirm the trial court's denial of Thompson's Motion for Reconsideration.
¶ 20. Thompson was injured on a visit to the City of Vicksburg Police Department. She filed a complaint against the City under the Mississippi Tort Claims Act. Miss.Code Ann. §§ 11-46-1 to -23 (Supp.2001). The trial court granted summary judgment to the City due to Thompson's failure to strictly comply with the notice requirements of MTCA and subsequently entered an order to that effect. While the trial court did note that she had substantially complied with the requirements, the case law at that time called for strict compliance. Thompson did not appeal from this order.
¶ 21. Subsequent to the entry of summary judgment, this Court rendered two decisions making substantial compliance with MTCA notice requirements the rule. Reaves ex rel. Rouse v. Randall,
¶ 22. The majority finds that the order granting summary judgment was not a final order from which an appeal could have been taken based upon our decisions in Mullen v. Green Tree Fin.-Corp.,
¶ 23. First, considering case law from all of our sister states, it can hardly be argued that an order for summary judgment is not an appealable judgment. Further, the various rules for Mississippi court procedure clearly contemplate that appeals can be taken from orders or judgments. Rule 5.04 of the Mississippi Uniform Circuit and County Court Rules states in part that "the notice of appeal and payment of costs must be simultaneously filed and paid with the circuit court clerk within thirty (30) days of the entry of the order or judgment being appealed." Miss. Unif. Cir. and Cty. R. 5.04 (emphasis added). Rule 54(a) of the Mississippi Rules of Civil Procedure notes that "`[j]udgment' as used in these rules includes a final decree *723 and any order from which an appeal lies." Miss. R. Civ. P. 54(a) (emphasis added). Rule 77(d) clearly contemplates that appeals lie from orders or judgments as it states:
Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service. Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.
Miss. R. Civ. P. 77(d) (emphasis added).
¶ 24. Rule 3 of the Mississippi Rules of Appellate Procedure anticipates that an order may be appealable as it discusses what may occur "[i]f two or more persons are entitled to appeal from a judgment or order of a trial court." Miss. R.App. P. 3 (emphasis added). Rule 8 of the Mississippi Rules of Appellate Procedure does this as well when it discusses the procedure regarding, as it states "[a]pplication for a stay of the judgment or the order of a trial court pending appeal ... must ordinarily be made in the first instance to the trial court." Miss. R.App. P. 8 (emphasis added). Rule 11 of the Mississippi Rules of Appellate Procedure again confirms the principle that orders are appealable when it discusses the transmission of the record on appeal and states that among other things an Appellant "shall deposit that sum with the clerk of the court whose judgment or order has been appealed." Miss. R.App. P. 11 (emphasis added). Again, in Rule 43 of the Mississippi Rules of Appellate Procedure acknowledges the appealability of orders when it addresses substitution of parties, as it states "[i]f a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred." Miss. R.App. P. 43 (emphasis added)
¶ 25. As to this Court's opinion in Roberts, there the form titled "Jury Verdict for Defendant" was found not to constitute a final judgment. In Roberts, the Jury Verdict form was entered on November 21, 1991. A judgment was entered on December 5, 1991. Roberts appealed within thirty days of the latter date, a mere sixty (60) days from the entry of the jury verdict form. Thompson put off any action for eight hundred and twenty-six (826) days. Significantly, this Court noted the clerk's failure to notify Roberts of the existence of the jury verdict forms.
¶ 26. As to Mullen, the disputed "judgment" there was not entitled judgment. This Court quoted the comment to Rule 54(e), stating that
The terms "decision" and "judgment" are not synonymous under these rules. The decision consists of the court's findings of fact and conclusions of law; the rendition of judgment is the pronouncement of that decision and the act that gives it legal effect. *724730 So.2d at 12 . Decision and judgment are clearly different under the rules. An order, however, is clearly contemplated as falling under the auspices of a judgment. See Miss. R. Civ. P. 54(a). Further, this Court emphasized the importance of litigants knowing when there is a final judgment so they can proceed from there. As noted, there can be no question that Thompson seriously doubted the ability to appeal from a summary judgment order.
¶ 27. Since there was an appealable judgment entered, Miss. R. Civ. P. 60(b) then calls for a reasonable time during which a modification motion may be filed. I agree with the trial court's holding that an eight hundred and twenty-six day delay is unreasonable. It is an unreasonable delay particularly when one considers that the basis for Thompson's appeal relies on two cases, one of which was handed down more than a year prior to the time she sought reconsideration. I see no reversible error in this case. Thus, respectfully I dissent.
WALLER, J., JOINS THIS OPINION.