1

 Lorenzo Powell was at the time of his death a State inmate. He worked on the garbage truck

that was driven by Pierce, a county employee, when he fell off the garbage truck resulting in his death.

Lorenzo Powell suffered fatal injuries on November 11, 1996.

Serial: 115499

IN THE SUPREME COURT OF MISSISSIPPI

No. 2003-CA-01663-SCT

GEORGE POWELL, PERSONAL

REPRESENTATIVE OF THE ESTATE OF

LORENZO POWELL

Appellant

v.

CLAY COUNTY BOARD OF

SUPERVISORS; LADDIE HUFFMAN IN

HIS OFFICIAL CAPACITY AS SHERIFF

OF CLAY COUNTY, MISSISSIPPI; AND

CARL PIERCE

Appellees

ORDER

¶1. This matter is before the Court sitting en banc on the Court's own motion to dismiss appeal, and

the Court finds as follows:

1. George Powell, Personal Representative of the Estate of Lorenzo Powell, filed a

wrongful death action against the Clay County Board of Supervisors (Clay

County), Laddie Huffman, in his official capacity as Sheriff of Clay County, Carl

Pierce and the Mississippi Department of Corrections (MDOC) on January 8,

1998.1

2. Clay County, the Sheriff and Pierce filed a motion for summary judgment on

March 13, 2001. The MDOC filed a motion for summary judgment on July 5,

2001.

3. On September 20, 2001, Circuit Court Judge John M. Montgomery executed an

order to grant summary judgment as to the MDOC. In a separate order also

signed on September 20, 2001, Judge Montgomery granted summary judgment

as to Clay County, the Sheriff and Pierce. The orders were filed on September

24 and September 25, 2001, respectively.
2

4. On October 10, 2001, Judge Montgomery executed a judgment of dismissal with

prejudice as to the MDOC based on having previously sustained the motion for

summary judgment. The order was filed on October 17, 2001.

5. Powell filed his notice of appeal on October 19, 2001, appealing the grant of

summary judgment to Clay County, the Sheriff, Pierce and the MDOC, as well as

the judgment of dismissal as to MDOC.

6. On March 25, 2002, Powell filed a motion for rehearing in the circuit court.

Powell also sought to present additional evidence not previously available germane

to the question of liability.

7. The MDOC was released from any further proceedings via an agreed order

between the parties.

8. On September 6, 2002, Judge Montgomery executed an order granting Powell's

motion to reconsider. The circuit court found that M.R.C.P. 60 (b) allowed the

court to reconsider its decision. The court directed the parties to refile their briefs

and Powell was allowed to use the county's insurance policy which was newly

discovered to have never been made part of the record and not before the court

during its deliberation. The order was filed on September 9, 2002.

9. On December 12, 2002, this Court by Chief Justice Edwin L. Pittman executed

an order finding that Powell's appeal should be dismissed as no final appealable

judgment existed in this matter. The Court stated that the trial court had,

subsequent to the filing of the notice of appeal with this Court, reconsidered its

prior ruling and set aside the summary judgment for the Clay County defendants.

10. Clay County sought to reinstate Powell's appeal to this Court. The Court refused

the request to reinstate the appeal and vacate the trial court's reconsideration of

its summary judgment. On April 2, 2003, this Court by now Chief Justice James

W. Smith, Jr., denied the request to reinstate the appeal dismissed by this Court

on December 12, 2002.

11. Due to Judge Montgomery's retirement from the bench, James Kitchens, Jr., took

his place as circuit court judge. On July 15, 2003, Judge Kitchens ordered that

Judge Montgomery's reconsideration order be dismissed and Judge Montgomery's

original order of summary judgment be reinstated. Judge Kitchens's order found

that Judge Montgomery did not have jurisdiction to reconsider the original order

for summary judgment once the notice of appeal had been filed. Judge Kitchens's

order does not reference M.R.C.P.60 (b) which infers concurrent limited

jurisdiction nor this Court's order dated December 12, 2002, dismissing the appeal

based on Judge Montgomery's reconsideration. Powell appeals this decision to

this Court.

¶2. THEREFORE, PREMISES CONSIDERED, the Court finds that the circuit court erred in

dismissing the order granting reconsideration and reinstating the original order of summary judgment. The

case should be reversed and remanded to the circuit court for further proceedings. 
3

¶3. IT IS, THEREFORE, ORDERED that Judge Kitchens's order is reversed and the case is hereby

remanded to the circuit court for further proceedings consistent with this order.

¶4. SO ORDERED, this the 23rd day of September, 2004.

/s/ Chuck Easley

CHUCK EASLEY, JUSTICE

FOR THE COURT

DIAZ, J., NOT PARTICIPATING