placed my name is brian yokum of the tennessee bar it's a pleasure to be here this morning i represent evergreen apartments l l c in fountain blue management services who are the owners and management company of the a great department complex located in tupelo mississippi the issue which i'm appearing here today for this honorable court is regarding the proper application of discretionary function immunity under mississippi law and the mississippi tort claims act with respect to a negligence claim that the city of tupelo was negligent in the design planning construction operation and maintenance of its public  and one quick ges context question what is the status quo i mean of the litigation that the things in the apartment all of rest of it i mean with things on hold pending available for occupancy and i think it's probably at about a seventy percent occupancy rate ok i'll do canter forty eight of the units which incurred the most flooding in this situation i have had the most problem over time with the flooding of the sewage issue that were here before today the proper application of discretionary function immunity is the court is well aware has been a point of major debate and disagreement the state of mississippi with respect to to get to the point where i'd like to take the position that the confusion that has been created by the mississippi supreme court has been resolved by the mississippi supreme court at this point in its january two thousand and sixteen decision in c first city of corinth and it's our position your honor that that's that case will mandate a reversal in remand of the summary judgment entered against my clients in this case please i'd like to focus on two primary issues today one would be the district courts failure to consider the totality totality of the appellant's factual claims that are set forth in the complaint and as or  some of those facts and i would also remind respect for them on the court that those pleadings were all made and light of the fortenberry case so this this wall suit was third two thousand and thirteen seven weeks after our suit was filed the court proceed to completely overhaul discretionary function immunity in mississippi on october seventeenth twenty thirteen or rendered its opinion in little bursts mississippi department of transportation and then can continued on to apply further scrutiny and more brantley versity formulaic which was in december of fourteen and then it was applied to sewer systems the new analysis the new paradigm in two thousand and fifteen so the facts that were played in the appellants original complaint were crafted to try appellants filed their complaint discovery was stayed in this case on march sixth two thousand and fourteen no discovery beyond the initial disclosures has ever been conducted in this case and certainly the court's opinion and order or dirty verse city of starkville it got sent back in the district court allowed briefing only on the application of or dirty  were not allowed to do any discovery or amend any pleadings so is your claim and i didn't get this i think sorry is your claim that when the case was sent back you were refused an opportunity to amend your pleadings or do discovery well your honor went when the case was sent back and it was remanded in order was issued from the district court stating that are that the parties were only to provide briefing on the application of but jordie to the facts of our case i do not offer an opportunity or all we were instructed but that's all we were allowed to do when you filed your brief in this i should have looked at it when you found your brief that he allowed the district judge to see he or she she she all the better people but then when she allowed you to do that did you say well in your brief we need an opportunity to amend our pleadings to take discovery and so on i mean did you make the argument that you're making to us to her yes your honor we have included in our brief the district court that the mississippi supreme court said that to not allow the property owner to amend and to person discovery would be quote taken away unfair so we've we've made that argument to the district court we did not directly ask would not solve a separate motion to be allowed to amend we followed the court's order and briefed on these issues and our brief did include but the scope of the fifth circuit mandate was with respect to the change in the law so when it went back down i mean our courts mandate was you know laws change done a lot of so i mean i can see court and not necessarily tune into a whole new arena new pleadings new discovery and cetera et cetera because the the basis of the mandate from the fifth circuit was own it legal here so t question and you say you told it but not sure it's evident to me how it's kind of one of these deals you know we really waive in because she's looking at the mandate that came down to do what it said so i mean was or some discovery would be proper on second degree man we would certainly be pleased to proceed in that matter however i believe based on the mississippi supreme court's decision in january twenty sixth seen  chrome that the pleadings as we originally made in this case along with the affidavits that are on record that would be far away sixty seven bit sorry one ninety six to one ninety eight or sufficient to have this court reversed the summary judgment and remained based on the facts in chrome as compared to the facts alleged in our case our case cover was missing and that route was growing into her pipe and that caused the backup in the sewer in our case we have alleged that our property is actually b sected directly down the middle by a tributary of a creek named king's creek there bought making the property a jurisdictional waterway pursuant to the clean water act and that is well beyond what ms crumb is pled but in chrome the court held quote if you take her allegations true that the back flow of sewage into her home was due to the fault of the city and not properly maintaining the sewer and or its manholes and or the city of corinth causing the sewer system that are manholes to flood bot action of the city of corps at their its employees it cannot be said to a certainty that crime would not prevail under any set of facts that could be proved to support her claim so we we have asserted similar claims with respect to missing manhole covers and cracks we've also asserted there are cracks in the city's sewer pipes which allow water to infiltrate into the city sewer through the missing manhole covers through the cracks in the pipe which then causes the water to surcharge and back flow into our private sewer line which is calls the flooding we have also alleged in the complaint that the slaughtering of sewage occurred not only in the units but onto the ground and onto the property and that's important if this court believes that the clean water act has to be implicated here in order to make this a ministerial function because in our case we have alleged it said want that would be my first point and then the backup to the backup position your honor would be that it would be as the mississippi supreme court has described in light of all of the confusion that's been in this area of law it would be paid only unfair to discovery which is really more a procedural issue the status of this case there is never a request for the district court by the appellant two men pleadings to engage in discovery as related to the pending motion for summary judgment affirm the judgment because as a matter of liberal pleading under the mississippi's called the six standards there was enough to get the get the play of by the twelve the six motion  with a further added notion that given that change the law the plaintiff would be allowed an opportunity to amend pleadings to square it up with the bush era the case i'm pronouncing it right in the in the bradley case so crime doesn't help this case as a matter of summary judgment that would avoid the bar the statue of limitations on the super tort claims act there was a one year statue of limitations on all claims and  that case was eventually dismisses a better jurisdiction refiled the state court over again alleging the same issues that are raised in this case that is that there were sewage backup issues experienced by the apartment dwellers in the apartments owned by the plate on the issue of who was responsible for the sewage backup was litigated in that case in two thousand and eight two thousand and nine two thousand and ten and determining the issues with relating relating to the sewage backup in the sewage lines why he wasn't hired earlier it's not we're not informed of that but i think it speaks to the lack of diligence in discovering their cause of action against tupelo but i think as a matter of law the district court was correct to the extent that it did apply the states of imitation is that the causes of action crude complex supplied an affidavit relating to a conversation he had with people officials back in two thousand and eight the other substantive evidence dealt with a couple of depositions that were produced in the atkins case efforts by the city of tupelo to discover the reasons for the sewage back up so all that was in the summary judgment record before this court and then of course copies of the of the honor of the summary judgment record of never request once the once the measure eight entered the order to stay discovery after the plaintiff filed their response to this motion for summary judgment there was never a pleadings nor did i think it was necessary i think if you looked at the second minute complaint you'd see that the complaining allegations did address that the construct that bridge airdrie and the brantley case suggest in terms of determining whether the discretionary function exemption mines that is is their discretion function at stake and if so is there a more narrow ministerial function at stake in terms of the claims that are raised against the defendant city of tupelo so you'll see that in the second amended complaint so i don't think there was a need nor the day take the opportunity to seek another amendment to the complaint reference of the course determination of the summary judgment motion this issue about the ditch being a jurisdictional waterway a i guess i should put it in the context of the particular issue of the and construction as a district court held i don't think there's really any genuine argument in opposition to that as far as maintenance is concerned the maintenance that was offered the maintenance issue offered in relation statue imitation defense related to the placement of the outfall sewer line which the player said was too shallow and you'll see the district court focused on that as far as whether there is a maintenance maintained over a period of time was in another self a separate cause of action so there's a continuing tort there's no record in this case on the out no proof that there was any alleged act really relates to only issues of design and construction and does not address issues of maintenance and that's what their circle district court relied on in deciding that the one year statute did not bar the maintenance oriented negligence claims against the city of tupelo beyond that the discretion function exemption exemption clearly applies because under the case of operations of sewage treatment facilities is presumptuously discretionary under mississippi law that is cities can engage in in the provision of sewage treatment and and operates whose treatment facilities in their discretion they can operate design and maintain in their discretion according to the statute in question this case is is there a more narrow ministerial duty at stake and that in this case the plaintiff focused on the terms of the of the discharge permit that was issued to argue that the the permit contained provisions that created mistral duties that were  d or or breached by the city's failure to maintain its the the mantle or the law and the cracks in the in the fluence into the state navigable waterways that's the purpose of it so when we look at duties the duties are associated with the the the right in the ability of the permit to discharge so any spills into apartments that's not a discharge which is a term of our under the clean water act that's not a discharge within the meaning of the clean water discharge the clean water act is a discharge and inevitable waterways so for example if there's a sewage back up into an apartment it floods a bath tub that's not something within the purview of the clean water it so i think it's important to look at the scope and purpose of the permit at issue in this case and in determining whether or not there is a ministerial duty at stake and i think the district court quickly decided that he should and in determining that there was no ministerial duty that was jurisdictional waterway that's an issue that has come up for the first time in this case in the reply brief was found with this court it's never been raised before that this ditch that bisects this property is somehow connected to but there's no allegation and no proof that this dish is should be considered a tribute tory tributary of king's creek and whether king's creek is connected to anything that relates to state or navigable waterwa but again that's that's less than what let's assume that it does and what's the next argument of the plaintiff well i think they're roundabout way and the reason why they're referring to it now is they're trying to trying to bring these cities there to maintain within the purview of the permit as a permit which limits effluent discharges into navigable waterways i don't think they get there even when bringing that into the fly brief because there's no allegation that any of the discharges were discharged into the ditch or things creep or that that the sewage backups it is that the problem was that they didn't go into the ditch pipes that carry the sewage are too high and they're one of the reasons they're high is because of this ditch and that something has to go over the ditch and therefore the stuff backs up into the apartments i mean i guess you can't deny the fact that the sewage backs up and the apartments and that's a problem or i think so the problem apparently is to try to tie the at to a ministerial function and what they point there's a guide and sets published by the i think the mississippi department of environmental quality but the terms of the guidance are explicitly discretionary involuntary and sesar right on the first page of the guide it's they are not a regulation they not been approved by the by the department of environmental quality mississippi their advisors room so they don't therefore inform a ministerial duty in this case they can be followed or they cannot be felt that at city  lines they work maintain properly they're too they're too narrow there's issues of abuse within the apartments themselves in terms of what they are using the sewage system for because all sorts of things so  two plus position is this case is not viable because of the one year statute whether we're talking about construction design maintenance operation they were well aware of the anyone can point to the say this provision require that you do x you did not do that there is nothing in this case that that suggests that so that's our position have counsel when he comes back up in the last part of his sowing the argument he says the mississippi supreme court has recently confirmed the factual allegations practically identical to evergreen owners and rules and regulations relied looking at pleadings and he's time at the say you didn't ask to amend pleadings back when i got it out of nada so really you can't get the thrust of crime eight because it's not to be six b because you don't have a pleading case case and and current going to do crum i think it's important that the court address and i've got a short time looked at it and it's not been raised here that the court applied mississippi administrative code section eleven dash six colon want to ask one dash for eighteen and that that is the basis and it's my understanding from reading crown that the court was making some factual analysis and continuing through in a q you agree th held so we've heard charges in terms of the other so what do you do about that i mean the argument in the briefs and otherwise is you're clive's new should have known did know actually knew it cetera you know enough to follow it with in one year there's no continuing toward doctrine did not apply but the district court did determine based on the record that our claims for operation and maintenance work continuing towards because the clear allegations in the complaint are that the continual unlawful acts that the negligence was continuing your honor so we believe that the court was correct in finding that maintenance and operation was a continuing tort the pleadings be the depositions that to post counsel were referring to creates all sorts of disputed facts as to what was going on in two thousand and eight in two thousand nine between the city of tupelo officials one to four debra byrd and tupelo and raises the issue to the court needs to be aware of it's in the record that tupelo was telling evergreen square the problem with the sewage backups was that the pipes on soup to tupelo and every grain squares property were too narrow and mandating that every green square hire a particular plumber to make those repairs and it turns out later we plumber that the city of tupelo required to do those repairs to install larger sewer pipes was moonlighting as a plumber from his day job as a officer in th fauresmith apartment and that's where a business dispute arose and this matter really got off and running when a dispute arose between the moonlighting plumber and my clients and then the city of tupelo came to shut down the property shut down a portion of the program where these apartments built to the best of my recollection your honor in the sixty's i believe the seventy's i  i don't have an exact date but we believe the court was correct at least in holding that the maintenance an operation is a continuing to work based on our allegations in the complaint i think