IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-01378-SCT CITY OF TUPELO, MISSISSIPPI

v. TERRY Y . McMILLIN, M.D. AND LESLIE SUSAN McMILLIN

DATE OF JUDGMENT: 08/28/2014 TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS COURT FROM W HICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MARTHA BOST STEGALL JOHN S. HILL ATTORNEYS FOR APPELLEES: BRADLEY TRUETT GOLMON STACEY W OODRUFF GOLMON NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED - 04/14/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. The present case is a Mississi p p i T o r t C l a i ms A c t ( M T C A ) c a se riddled with conf usion and m iscom m

unication surrounding a residential building perm it. In 2006, Dr. Terry Y. McMillin and his wif e, Leslie Susan McMillin, purchased a new hom e in Tupelo, Mississippi. Displeased with contractor Jami e Ewing’s f ailure to respond to their repair requests, plus t heir discovery o f a docum ent – a blue card – noting a f ailed h om e i nspectionand l isting the nam e of a dif f erent contractor as the contractor r esponsible f or their hom e’s construction, the M cMillins began the process of unraveling jus t w h o was responsible f or building their new hom e. Ultim a tely , the case stem s f r om an error by t he City

of Tupelo’s
Perm it Manager Marily

n V ail in h a ndling t he withdrawal of one licensed contractor and

m istakenly substituting the nam e of another licensed contractor, when in actuality , a licensed contractor was not working on the hom e. The circuit court held a bench trial and awarded $9,319.23 in dam ages t o r e p a i r t h e hom e and $105,894.39 i n legal f ees r elated to another

case involving the c onstruction but denied the McMillins’ request f or a t torney s’ f

ees in the instant case. The City appealed, and the McMillins cross-appealed. W e conclude that the circuit court erred in f

inding that the City wa s n o t i mmu n e f rom liability ; theref

ore, we

reverse the circuit court’s judgm ent and render judgm e nt i n f a v or of the City on the basis that it is im m une f rom liability

. FACTUAL AND PROCEDURAL HISTORY ¶2. A business partnership existed between Joey Guy t on and Ewing, w i th the purpose of the partnership b e ing construction of residential hom es. A s t h e l i c e n sed contractor in the partnership, Guy

ton oversaw Ewing’s construction activities f or the partnership. O n July 5, 2005, t he City of Tupelo (City ) issued Guy ton, as the l icensed c o ntractor f or the partnership,

a p erm it to build a residence at 4848 Market Street in Tupelo, M ississippi. The p artnership held other perm its f

or other residential projects a s well. Nine m onths af t er the City issued the perm it, the partnership dissolved, and Guy ton provided the City with a letter on April 4, 2006, requesting that he be r eleased f r om t he perm its issued to him under the partnership’s

2nam e. The City ’s Perm it Manager Marily n Vail requested Guy

ton provide som ething m ore f orm al t han the letter, a nd o n A p r i l 11, 2006, Guy ton subm itted a notarized letter to Vail asking to be released f

rom specif

i c perm its, including the residence’s perm it. 1 ¶3. However, i n the tim e b etween Guy ton’s two l etters, the City received a n o tarized letter signed by Lawrence Deas, a licensed contractor, and Ewing. T he letter, in its entirety quoted herein, advised the City that “Deas has been hired b y Harvester’s Square Developers, LLC,

to tem porarily o ve r s e e c o n s truction of all residences u nder construction until such tim e as another licensed contractor is f ound to take over said jobs.” T he letter did not specif ically list the perm its that Deas would be overseeing. ¶4. Taking all three letters t ogether, V a i l mi s t a k e n l y t h o u g h t t h a t Deas was now overseeing a ll o f the perm its listed in G u y t o n ’ s second l etter. As a result, Vail issued a replacem e nt blue card f

or the r e s i dence listing Deas as the licensed contractor. Ewing continued construction on the residence, essentially without a licensed contractor overseeing his work. ¶5. The p erm it issue cam e to light only af ter the McM illins purchased the residence on August 24, 2 006. F ollowing the purchase of the hom e, the McMillins created a punch list
f or the residence of item s that E wing was t o repair or c orr e c t ; however, according to the McMillins, Ewing would not respond to the McMillins’ punch list. Also af ter purchasing

1 M o re s p ecif

ically , th e l etter said : “I am w ith d raw i n g t h e u s e o f m y g en eral co n tracto r’s licen s e f

o r th e b u ild i n g p e rm its listed b elo w . I r elease th e listed p erm its f o r th e H a rv ester’s S q u a r e d e v e l o p e r to u se an o th er licen sed g en eral co n tracto r t o f in ish th e p ro j ects.” T h e letter t h en listed th e r e s i d e n c e , an o th er ad d ress, an d n in e lo ts/ad d resses asso ciated w ith th e H arv ester’s S q u are d ev elo p m en t. 3the residence, the McMillins discovered the replacem e n t blue card Vail h a d p repared that

listed Deas, not Ewing as they thought, as the l i c e nsed contractor on t he residence. The replacem e nt blue c ard a lso showed that the residence had f ailed an inspection just day s prior

to t he McMillins’ purchase of the residence. According to the McMillins, they were unaware that the residence had f

ailed an inspection when they closed. ¶6. Frustrated by Ewing’s f ailure to address their p unch list, the M cMillins contacted the
State Board of Contractors to com plain about Ewing, and they discovered that Ewing had not been l icensed during the c onstruction. Even m ore f r ustrated now, the McMillins s ent a letter

to E wing, as the person responsible f o r construction; D eas, as the licensed contractor on the replacem e nt blue c ard; and G uy ton, as the o riginal licensed contractor. The letter dem anded that E wing r eturn the purchase price to them

. G uy ton responded with a letter explaining that the original partnership with E w i n g h ad dissolved, and he provided the M cMillins with a
copy of the notarized letter he had sent to Vail releasing the perm its. ¶7. Deas and the McMillins engaged in a heated phone c o n v e r s a t i o n a b o ut the letter, leading to Deas sending the McMillins a letter deny ing his involvem ent with the residence and blam ing a clerical error at the perm it of f ice f or listing his nam e on the replacem ent blue card. Deas encouraged the McMillins to conf irm the error with the perm it of f ice; however, Dr. McMillin testif

i ed that Vail w ould not answer his questions about Deas’s involvem ent when he asked her. 2

2 V ail d en ied th at D r. M cM illin h a d ask e d h e r a n y q u estio n s ab o u t D eas’s in v o l v em en t. 4¶8. Then, in D ecem b er 2 006, the McMillins sued E wing f or breach o f contract and f raud, and they added claim s f

o r breach of f

iduciary duty against two banks, a ll in the Lee County Chancery Court. S ubsequently , the McMillins voluntarily dism issed t h e b a n k s , b u t the action against E wing is still pending. Several m onths a f ter f iling the c han c ery c ourt action, the McMillins served a Notice of Claim on t he City contending that Vail negligently handled the
perm it issue, and her negligence resulted in the residence being constructed by an u nlicensed

contractor. The McMillins did not pursue an a c tion against the City f urther until m

uch later. ¶9. In January 2007, and unrelated to the chancery court action, Vail placed a m em o in the residence’s perm it f

i le. The m e m o, title d “ T r a nsf er of Contractor Responsibility ,” acknowledged the partnership’s dissolution and explained that Ewing had six m onths f rom the dissolution to o b tain his contractor’s license bef ore h e w ould be in violation of the law. Further, according to the m em o, D eas “agreed to take responsibility f or [ Ewing’s] projects unti l [ E w i ng] c ould obtain his license.” Ewing did p ass the residential contractor’s test in Septem ber 2006, and the State Board of Contractors issued Ewing’s license on October 27,
2006. The m em o explained that Vail had t ransf erred all previous perm its t o E w i n g ’s responsibility

. ¶10. More t h a n t w o y e ars af ter initiating an action i n the c hancery c ourt, the McMillins joined Deas as a def

endant in the lawsuit in Decem b er 2008. Joining Deas appeared to be b a s e d on Vail’s m em o explaining that Deas had agreed t o take r esponsibility f or Ew i n g ’ s projects. Less than one m onth af ter joining Deas as a def

endant, the McMillins received an af f idavit f rom Ewing conf

irm ing that Deas was not involved in the residence’s c onstruction.

5In March 2010, V ail provided the M cMillins with an af f idavit explaining how she m istakenly

cam e to believe t hat D eas was involved in the r esidence’s c o nstruction. Deas then requested the McMillins voluntarily d ism iss him f rom the chancery court action based on Ewing’s and Vail’s af f idavits; however, the McMillins would not agree to dism iss him f rom t he action and instead added m ore claim s against him

. Deas f iled his answer in the chancery court action, and he also f

iled a counterclaim against the McMillins f or dam ages based on slander. Deas

rem ained a def

endant in t he chancery court action f or another twenty m onths until the chancery court granted sum m a ry judgm ent in his f avor because t he McMillins had f ailed to
prove Deas’s connection to the residence. W hen granting sum m ary judgm ent, the chancery

court specif

ically noted that Deas’s nam e was associated with the residence only as a result of a clerical m istake. ¶11. The present c ase began on March 17, 2011, when the McMillins subm itted a second Notice of Claim to the City , again based on Vail’s negligent ha n d ling of the perm its and
perm it f ile. The Le e C o u n t y C i r cuit Court held a bench trial, and it heard two day s of testim o ny and evidence. The M cMillins and t he City subm itted separate, proposed f indings of f act a nd conclusions of law at the trial cou r t ’ s r equest, and the t rial court u ltim ately adopted an o verwhelm ing m ajority of the McMillins’ proposed f indings. The circuit court f ound that Vail had a duty to: (1) ensure that a licensed c ontract[ or] was working on the [ residence] f or the entirety of the construction; (2) on the withdrawal o f the Guy ton license, stop construction; (3) prevent construction f rom r e s u m ing until such t im e as a licensed contractor agreed to be r esponsible f or the construction; (4) properly process the Guy

ton withdraw a l ; (5) stop construction w hen t he [ original]

6perm it expired; and (6) ref rain f rom placing in the f

ile m isleading untruthf

ul papers. The circuit court explained that Vail’s actions or inactions in m aintaining t he p erm it f ile were deem ed arbitrary a nd capricious; thus, the City c ould not be im m une f rom liability

. Further,

as a result of Vail’s error, the City negligently

and wrongf

ully allowed construction on the residence by a n unlicensed contractor. The c ircuit court a warded the McMillins $9,319.23
in d am a ges f

or r epairs to the residence and m ore than $105,000 in l egal f ees incurred by the McMillins w h i l e pursuing the chancery court action against D eas. The McMillins did not

rec e i v e any attorney s’ f

ees in connection with t he p resent suit against the City

. Also, the circuit court did not award the M c Millins t he d a ma g e s t h e y requested r elated to the down
pay m ent, all m ortgage pay

m ents m ade, an d o ther costs associated with m aintaining the residence while on the m arket. ¶12. The C ity appealed t he circuit cou r t ’ s d ecision, and it raises t he f ollowing issues f

or appellate review:
I. Did [ the McMillins] present evidence suf f icient t o support a verdict awarding $9,319.23 f

or repair work?
II. E v en if there had been proof of repairs f or def ective constru c t i o n occurring a f

t er April 11, 2006, would Tupelo be im m une f rom liability under [ Mississippi] Code [ Section] 11-46-9(1)(h)?
III. W as t here any proof that Vail violated [ Mississippi] Code [ Section] 7 3- 59-17?
IV. Did Vail’s a ctions o r inaction af ter [ t h e McMillins’] purchase of the residence breach a duty o wed [ the M cMillins] f rom which [ the City ] is not im m u ne a nd that proxim a tely caused t hem to incur attorney [ s’] f ees in litigation with Deas?

7V. Even if an a ction or inaction by Vail af ter [ t he McMillins’] p urchase of the residence b reached a duty t hat proxim ately caused [ t he McMillins] to sue Deas, did the trial court err in a warding attorney [ s ’] f ees totaling $105,894.39?
VI. Notwithstanding a ll of the f oregoing, i s this action barred by a pplicable statutes of

lim itation? ¶13. Also aggrieved, the McMillins f iled a cross-appeal on the issue o f a ttorney s ’ f ees, and they present the f

ollowing issues f

or appellate review:
I. [ The McMillins] are entitled to attorney [ s’] f ees i n the current case due to the gross negligence of [ the City /Vail] f ound in the punitive dam ages statute. II. [ The McMillins] are entitled to a ttorney [ s’] f ees in the current case due to [ t he C ity ’s/Vail’s] denial of liability in [ the McMillins’] request f or adm issions.
III. [ The McMillins] are entitled to attorney [ s’] f ees in the current case as these f ees are the natural consequence o f the actions and om i ssions of [ the City /Vail] a nd they shou l d b e assessed with them under V e asley and Essinger

case law.
IV. [ The McMillins] are entitled t o post[ -]judgm ent interest at a rate to be set by the [ trial] court.
For the purposes of clarity and brevity , we will c om bine and rearrange is s u e s w h e re
necessary . STANDARD OF REVIEW ¶14. “Im m

unity is a question of law[ ,]” which receives de novo review, and is the basis f or

our review of the dispositive issue in today ’s case. However, the “f indings of f

act by a circuit court judge, sitting without a jury , w i l l not be reversed on a ppeal where they are

8supported by s ubstantial, credible, and reasonable e v idence.” City of Laurel v. William s , 21 So. 3d 1170, 1174 (¶15) (citations om itted).
DISCUSSION
I. The City ’s Appeal ¶15. The C ity contends that it is im mu n e f r o m l i a b i l i t y p u rsuant to Mississippi Code Section 11-46-9(1)(h). Additionally , the City argues that the M cMillins presented no proof that Vail violated Mississippi Code Section 73-59-17. W e a g ree. ¶16. The circuit court cited Mississippi Code Section 73-59-17 (Rev. 2 012) to provide the

“ s tatutory duty ” the City has t o “ensure that all builders o f residential property within th e [ c]ity lim its be licensed.” Section 73-59-17 (em phasis added) provides: The bu i l d i n g of

f icial, or other authority charged w ith t he duty of issuing building or s im ilar perm its, of any m unicipality or c o unty , shall refuse to issue a permit f

or any undertaking which would classif y the applicant a s a residential builder o r rem odeler under this chapter unless t h e applicant h as f urnished e vidence that he is eithe r l i c e n sed as required by this c h apter or exem pt f rom the requirem ents of this chapter. The b uilding of f icial, or other a u t h o rity charged with the duty of i ssuing building or sim ilar perm its, shal l also report to t h e board the nam e and address o f any person w ho, in his opinion, h as violated this c hapter by a c cepting, or contracting to accom p lish, work which would classif y the person as a r esidential bui lder o r rem o deler under this chapter without a license or acknowledgem e n t [ sic]. The circuit court f

ound th a t t h e City ’s action or inaction, through Vail, was a r bitrary and capricious when it allowed Ewing, who Vail knew was n ot l icensed and did not have a valid
perm it, to continue work on the residence. ¶17. W e cannot determ ine h ow Section 73-59-17 creates a duty which the City violated.
Th e statute requires that the person responsible f or issuing perm its “shall refuse to issue a

9perm it” unless the applicant is licensed. W hen the perm it f or t he residence was f

i rst issued, the applicant G uy

ton was licensed; theref

ore, the City properly issued the license under the

statute. W e cannot f

ind authority , n o r has any been provided to us, o therwise explaining what should happen when a valid perm it a l ready has been issued, but the licensed applicant pulls his license f

o r the perm it. W e d o not r ead the statute to cover such a situation. Theref ore, we cannot discern a statutory basis to support any duty to the McMillins that Vail and the City

did not satisf

y . ¶18. Furtherm ore, we h old that the circuit c o urt erred i n f inding that City was not im m une because i t a c t e d a r

bitrarily and capriciously

. “Im m unity is a question of law[ ,]” which receives d e novo review. City of Laurel v. William s , 21 So. 3d 1170, 1 174 (¶15) (citations

om itted). At issue in the present case is Section 11-46-9(1)(h), which provides:
A governm ental e ntity and its em plo y e e s acting within the course and scope of their em ploy m e nt or duties shall not be liable f or any claim : Arising out o f the issu a n c e , d e nial, suspense or revocation of , or the f ailure or ref

usal to issue, deny , suspend or r evoke any . . . perm it .

. . where the governm ental entity or its e m ploy ee is authorized b y law to determ ine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, deni a l , suspension or revocation, or f

ailure or ref

usal thereof

, i s of a ma l icious or a rbitrary and capricious nature[ .] ¶19. According to the circuit court, the City w as entitled to “qualif i ed sovereign im m

unity by Section 11-46-9(1)(h).” However, the City ’s actions of “allowing Ewing to c o ntinue to perf orm w ork on t he [ residence] when they knew that he was not licensed and without a valid [ p]erm it rises to the level of arbitrary and capricious.” Further, Vail did not notif y the Board of Contractors to report Ewing. The circuit court a l s o f o u n d that V ail had adm itted that

1 0Guy

ton had withdrawn the only valid license, and t hat Deas n e v e r h a d a greed to take responsibility f

or the residence’s constructio n. There is no m ore explanation of how the City ’s actions were arbitrary and capricious. ¶20. The Court has add r e s s e d t h e t erm s “arbitrary and capricious” in connection with
Sec t i o n 11-46-9(1)(h) in Lowe v. Lowndes County Building Inspection Departm ent , 760
So. 2 d 711 , 7 1 4 ( ¶ 12) (Miss. 2000) (quoting Mississippi Departm ent of Environm ental Quality v. Weem s , 653 So. 2d 266 (Miss. 1995)):
An adm inistrative act is arbitrary and capricious if the a gency “ e ntirely f ailed to consider a n im

portant aspect of

the problem , or of

f e red an explanation f

or i t s d e c i s i o n that runs counter to the evidence b ef ore the agency or is so im p lausible that it could not be ascribed to a dif f erence i n view or the product of any agency expertise.” In addition, the f ailure o f an agency to abide by its rules i s p er se arbitrary and capricious as is the f ailure of an adm inistrative body to c onf

orm to prior procedure without ad e q u ate explanation f or the change.
As the circuit court pointed out, V ail’s inclusion o f Deas’s name o n t h e replacem ent blue card was a m istake. The chancery court also recognized that the City ’ s inclusion of Deas was the result o f a clerical m i stake. V ail’s inclusion o f Deas’s nam e was a genuine m istake that does not rise to t he l evel o f arbitrary and capricious behavior. As several witnesses testif ied, the C ity does not h ave a policy or procedure f or the situation of having a licensed contractor release h is p erm its and withdraw his license. Theref ore, Vail was f

ace d w i t h a n u n usual situation f or which s he had no precedent to f ollow. W e now know that Vail should have read the l etter f

rom Guy ton and the letter f

rom Deas and Ewing m ore closely to realize the letters did not c o ver the s a m e p roperties, but w e cannot see how m aking such a m istake is considered arbitrary

and capricious.

1 1¶21. The circuit c ourt erred also in f inding that t he City knew Ewing w as not l icensed and did not have a valid perm it while construction w as o ngoing, when the evidence is that at no
p o i n t u n t il well after construction was com pleted d id it com e to light t hat there was n o t a licensed contractor on the residence. In Lowe , the Court reversed the circuit court’s f inding of im m unity u nder Section 11-46-9(1)(h) and subsequent dism issal based on the f act that the plaintif f ’s allegations, which m

u st be taken as true i n considering a m otion to dism iss, that

t h e L owndes County Building Inspection Departm ent knew Donna Kay Ly nn was n o t a licensed contractor but still issued a perm it. Lowe , 760 So. 2d a t 714 (¶¶8-17). The present

case is distinguishable because the undisputed proof is that Vail, t hough a ware t hat Ewing was unlicensed, did not know that the perm it l acked a licensed contractor at any tim e until af ter the construction was com pleted, since she thought Deas t ook o ver r esponsibility f or the
perm it. Further, Vail did not report Ewing to the Board of Contractors because, in h er m ind, Ewing’s construction projects were being overseen by a licensed contractor, and then Ewing bec a me l i c e n s e d , so there was no need to report Ewing. The bases f or the circuit court’s f inding that the City was n o t i mmu ne because it acted arbitrarily a nd c a priciously are not based solidly

in the evidence presented at trial. ¶22. Theref

ore, we hold t hat the City was i m m une f rom liability , and the circuit c ourt e rred
in f i nding otherwise.
II. Statute of Lim itations ¶23. The C i t y a l s o c l a i ms t h a t t he MTCA’s one-y ear s tatute of lim itations bars the McMillins’ com

p laint. W e agree. The McMillins f iled the i r i n i t i al Notice of Claim in

1 2August 2007; they did not f i le suit. Their second Notice o f C l a i m was f iled on M arch 17, 2011, with suit then f

iled on October 13, 2011. Mississippi Co de S ection 11-46-11(3)(a) provides, in pertinent part, that:
All actions brought under this chapter shall be com m enced within one (1) y ear next af ter the date of the tortious, wrongf ul or otherwise a c tionable conduct on which the liability phase of the action is based, and not af ter, e x cept that f

iling a notice o f claim within t h e r equired one-y ear period w ill t oll the statute of lim itations f

or n inety -f

ive (95) day s f

rom the date the chief executive of f i cer of t he state entity o r the chief executive of f icer or other statutorily d esignated of f icial of a political subdivision receives the notice of claim

. ¶24. W h en presented with the argum ent at trial, t he circuit court f ound that the statute of
lim itations had run, that the City did not waive the statute of lim i tations def ense, but that the City was equitably estopped f rom raising the statute of lim itations def ense “due to the actions of t he City em

ploy ees, specif

ically Ms. Vail[ ,]” t hat caused the McMillins such dif f iculty in ascertaining who w as the residence’s contractor. “ Concerning t he application of equitable estoppel, ‘[ th e ] i s s u e b e com e s a question f or the trier of f

act when t here is evidence to support a f

inding that the plaintif

f reasonably relied o n the a ctions of t h e d ef endant to his d e t r im ent.’” T

rosclair v. Miss. Dep’t of Transp. , 7 57 So. 2d 178, 181 (¶13) ( Mis s . 2 0 0 0 ) (quoting M

i s s . D e p ’ t o f Pub. Safety v. Stringer , 748 S o. 2d 662, 668 (¶29) ( Miss. 1999) (Banks, J., dissenting)). ¶25. “W ith the r e p l acem ent of strict com pliance with that of substantial c om pliance, the
Court opened the door f

or the application of e quitable estopp e l i n c a ses a rising under the [ MTCA,]” and depending on the f acts of the case, equitable estoppel m ay be applied to the notice o f claim p r ovision and the MTCA’s statute of lim itations provision. Trosclair , 757

1 3So. 2 d at 1 81 (¶10). “Equita b l e e s t o p p e l is g enerally def i ned as ‘the principle by which a
p a r t y is precluded f

rom deny i ng a ny m aterial f act, induced by his words or condu c t u p o n which a person relied, whereby t he person changed his position in such a way that injury would be suf

f ered if such denia l o r c ontrary a ssertion was allowed.’” K im ball Glassco
Residential Ctr., I

nc. v. Shanks , 64 So. 3d 941, 947 (¶19) (Miss. 2 011) ( quoting Sim m ons Housing, Inc. v

. Shelton , 36 S o. 3d 1283, 1 287 (¶15) (Miss. 2010)). E quitable e stoppel is an extraordinary

rem edy and should be applied with caution. Id. ¶26. F o r t

h e d octrine o f equitable estoppel to apply to a statute o f lim itations, “[ i]nequitable

or f raudulent conduct m

ust be establ i shed[ .]” S

hanks , 64 So. 3d at 947 ( ¶19) (quoting
Trosclair , 757 So. 2d at 1 81 (¶11)). In Townes v. Rusty Ellis Builder, Inc. , 98 So. 3d 1046,
1 0 5 5 (¶26) (Miss. 2012), the Court explained that it would not “prevent a tim e b a r w h e r e good-f aith settlem ent negotiations are the o nly evidence subm itted by the plaintif f

. Rather, the plaintif

f m ust present proof of inequitable conduct by the d ef endants.” Further, “the plaintif f m ust show by a preponderance of the evidence that ‘(1) it was i nduced by the conduct of the d ef

endant not to f

ile its com

plaint s o o n e r , ( 2) r esulting in [ the plaintif f ’s] claim being barred b y the applicable lim itations, and ( 3) [ the d ef endant] knew or had reason
t o know that such consequences would f ollow.” Id. (citations om itted). Vail’s listing o f
Deas as the residence’s licensed contractor a n d her subsequent actions, including the m em os placed in t he p erm it f

ile, were the result of a mistaken belief

. There is n o proof i n the record,

m uch less proof by a p reponderance of the e vidence, that the City or V ail “ knew or had

1 4reason to know” that its actions or inactions would result in the McMillins’ claim s or suits

being barred by

a statute of lim itations. ¶27. W e hold that the circuit court correctly f ound that the City d id n ot waive i ts statute of
lim itations def

ense a nd that the statute of lim i tations had, i n f act, run. Even t hough there is testim o ny that the McMillins delay ed f iling their suit based on Vail’s 2007 m em o, there is

no dispute that the McMillins k n ew conf usion surrounded the perm it, as evidenced by their
f i r s t Notice of C laim , which was tim ely

. T he McMillins elected not to proceed on that Notice of Claim , and that w as t heir decision. Moreover, the circuit c ourt erred in apply ing the doctrine of equitable estoppel. Thus, the McMillins’ claim s were b arred b y t he statute of
lim itations.
III. Dam a ges Aw arded to the McMillins Based on Deas Law s u it ¶28. Because the City was im m une f rom liability and the statute of lim itations barred the McMillins’ case, the circuit court erred in awarding the McMi l l i n s mo re than $105,000 in dam ages f

or the legal f

ees associated with the McMillins’ suit against Deas b ased on their “reasonable reliance upon the contents of t he Perm it File a nd com m unication w ith the City of Tupelo resulting in the pursuit of Deas.” W e reverse the circuit c ourt’s a ward of all dam ages in the present case, including the attorney s’ f ees. IV. The McMillins’ Cross-Appeal ¶29. The McMillins’ cross-appeal centers on their request f or attorney s’ f

e es in t he present

case, which the c ircuit court denied as having “no authority i n statute o r c ase law[

. ]” Based

on t he application of the sta t u e o f l i mi t ations and the City ’s im m unity f rom liability , it

1 5f

ollows that analy sis of the McMillins’ cross-appeal is u nnecessary . The judgm ent of the circuit court on the McMillins’ cross-appeal is af f i rm ed.
CONCLUSION ¶30. T h e p r e s e n t c a s e i n v o l v e s a c l e r i c a l mi s t a k e a n d n u me r o u s s u b s e q u e n t

m iscom m unications that snowballed into what is now bef ore us. U ltim ately , the McMillins’ claim s were barred by the statute of lim itations and the C i t y i s i m m une f rom liability

. Theref ore, the circuit court e rred in f inding that the City was not im m une and allowing the

case to proceed. The resulting dam ages awarded t o t he McMillins also were in error based

on the statute of l im i tations and t he C i ty ’s im m unity

. Finally , the circuit court correctly
f ound that the M cMillins’ claim f or legal f ees in t he pr e s e n t c a s e is without m erit f or the

sam e reasons as stated above. ¶31. ON DIRECT A P P E A L : R E V E R S E D A N D R E N D E R E D . O N C R OSSAPPEAL: AFFIRMED. WALLER, C .J., DICKINSON, P.J., A ND BEAM, J., CONCUR. R ANDOLPH, P.J., LAMAR AND MAX W ELL, JJ., C ONCUR I N PART AND I N RESULT WITHOUT SEPARATE WRITTEN OPINION. K ITCHENS, J . , DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. KITCHENS, JUSTICE, DISSENTING: ¶32. Because I believe this Court’s def erential standard of review requires us to af f irm the the circuit court’s f

indings on liability , I respectf ully dissent. I w o u l d af

f irm the circuit
court’s ruling that the City was e quitably estopped f rom raising the statute of l i m itations def ense due to Vail’s intentionally m isleading actions. I also would af f irm the c i rcuit court’s f inding that the City was not i m m une f r om liability under the Mississippi Tort Claim s Act

1 6f

or the McMillins’ claim s f or repairs to t h e i r h o me ( t h e Residence) and f or the legal f

ees incurred in their lawsuit against L awrence Deas. However, because t he c ircuit court awarded the McMillins legal f

ees bey ond w ha t t hey incurred in their l awsuit against Deas, I would

reverse that dam ages award and rem a nd f or the circuit court to award dam ages in an am ount lim ited to the legal f

ees the McMillins incurred in their lawsuit against Deas.
A. Facts ¶33. Since the f

acts of this case are com

p licated, I provide the f

o llowing tim eline: July 5, 2005 A b u i l d i n g p e r m it f or the Residence was issued to Joey Guy ton w i t h Precision Properties. Guy ton was a licensed contractor, but h is business partner, Jam ie Ewing, was not licensed. E wing and Guy ton worked on construction of

the Residence. July 5, 2005 A “ b l u e c a r d ” w a s i s s u e d f o r t h e R e s i d e n c e l i s t i n g G u y ton as th e license d c o n t ractor. Trial testim ony established that a blue card is a docum ent that contains inf orm ation a

bout a building project and is kept at the job site f

o r ref erence by building inspectors. Apr. 4, 2006 Guy ton g ave a handwritten n o t e t o t h e C i t y ’s perm it of f ice m anager, Marily n Vail, stating, “I am w ithdrawing all permi t s a t t ached to m y c o n t r a ctor’s license

. . . . All perm i ts a r e a ttached to this let t e r a n d ef f ective A p r i l 4 , 2 006 at 12:00 p .m . ” Vail requested that Guy ton provide the City

a f orm al notice of

his withdrawal of

the perm its. Apr. 5, 2006 L a w r e n c e D e a s 3 a n d J a mi e E w i n g s e n t a l e t t e r t o V a i l s t a t i n g ,

“Lawr e n c e D eas has been hired by H arvester’s Square D evelopers, LL C , t o tem

porarily oversee construction o f a l l residencies under construction until such tim e a s another licensed contractor is f ound to take over said jobs.” Both Deas and Ewing signed this letter. This letter never was placed in the perm it f ile f or the Residence. Apr. 11, 2006 G u y t o n p r o v i d e d V a i l f o r m a l n o t i c e o f t h e w i t h d r a w a l o f h i s contractor’s license f

rom t he building perm its. H i s letter stated “I am

3 T rial t estim o n y estab l ish ed t h at D eas is an atto r n e y a n d a licen s ed g en eral co n tracto r. 1 7withdrawing the use of m y general contractor’s perm i t f or the building perm i ts listed below. I release the listed perm i ts f or the Harvester’s Square developer to use another licensed gen e ral contractor to f inish the projects.” The l etter listed e leven addresses, i n c l u d ing nine addresses in the Harvester’s S quare developm ent, and two other addresses, including that of the Residence. Apr. 11, 2006 V a i l i s s u e d a r e p l a c e me n t b l u e c a r d l i s t i n g D e a s a s t h e l i c e n s e d

contractor associated with the building perm it f or the R esidence. Vail testif ied that she m istakenly had interpreted t he letters of April 4, 2006, April 5, 2006, and April 11, 2 006, to m ean that, when Guy ton released the building perm it f

or the Residence, Deas w as going t o take over the perm i t. In reality , t he April 5, 2 0 0 6 , letter f rom Deas a nd Ewing indicated that Deas tem

porarily was taking over the Harvester’s Square perm i ts, not the perm i t f

or the Residence, which w as not part of the Harvester’s Square developm e nt. Aug. 18, 2006 The R esidence f ailed the f inal i nspection, due to several building code violations and other problem s. Aug. 24, 2006 The McMillins purchased the Residence f rom Ewing. Aug. 26, 2006 T h e M c M i l l i n s discovered th e r e p l a c e me n t b l u e c a r d a n d t h e f i n a l inspection report in a kitchen d rawer at the Residence. They requested that Ewing rem ediate the problem s with the R esidence, but Ewing was unresponsive despite the McMillins’ repeated requests that he correct the problem s. Oct. 9, 2006 A hom e inspector inspected t h e R e s i d e n c e a n d i d e n t i f i e d n u me r o u s item s in need of m ainten ance and repair, including several building code violations.
Oct. 2006 The McMillins c ontacted the M i s s i s s i p p i B o a r d o f C o n t r a c t ors and

were notif

ied that Ewing was not licensed.
Oct. 21, 2 0 06 The McMillins sent a letter to Ewing, Deas, and Guy t on, and copied the City

. The M cMillins stated that they had notif ied the Ci t y t h a t Ewing was unlicensed. They also requested a r eturn o f t h e p urchase price of the R esidence due to the num erous problem s that Ewing had f ailed to correct.

1 8Oct. 26, 2006 I n a l e t t e r t o t h e M c M i l l i n s , G u y t o n c l a i m e d t h a t h i s b u s i n e s s partnership with Ewing had dissolved in April 2006, releasing Guy ton f rom liability f or the Residence. Oct. 30, 2006 I n a telephone conversatio n w i t h T e r r y M c M i l l i n , D e a s d e n i e d a n y

involvem ent with the Residence. Oct. 30, 2006 De a s s e n t a l e t t e r t o the McMillins stating, “I am n ot and have never

been i nvolved i n t h e c onstruction of y o ur h om e. The inclusion of m y nam e on any records in the B uilding Departm ent of t he City o f Tupelo was t he result of a clerical error. It is m y understanding y ou have already b een m ade aware o f this f act, b u t M a r i l y

n Vail or another em ploy ee o f the Building D epartm ent can provide conf irm ation.” Deas sent a copy of this letter to the City of Tupelo, and it was placed in the perm i t f ile f or the Residence. Nov. 20, 2016 T e r r y M c M i l l i n w e n t t o t h e p e r mi t o f f i c e a n d t a l k e d t o V a i l

. H e testif ied that, when h e asked Vail whether Deas had been involved in the construction of t he Residence, Vail did not answer and told him to look at the perm it f

ile. Vail denied that Terry McMillin had asked her about Deas. Terry McMillin testif ied that, when he went u

pstairs to see the perm it f

ile, the clerk ref

used to let him

see it. Dec. 7, 2006 T h e M cMillins sued Ewing f or b r e a c h o f c o n t r a c t a n d f r a u d i n t h e Chancery Court of Lee County

. Jan. 10, 2007 V a i l p u t a m e m o i n t h e p e r mi t f i l e t h a t p r o v i d e d t h e f

o l l o w i n g narrative: “ Approxim ately one y ear ago, Joey Guy ton and Jam ie Ewing dissolved t heir partnership. Joey held the license f or t h e i r business. Under s t a t e l a w , J am ie had 6 m onths to o btain a license bef ore he would be in violation of the law f or not having a contractor’s license. 4 In the m ean tim e, Jam ie’s attorney , Lawrence D ees [ sic], agreed to take respon s i b ility f

or his projects until J am i e could obtain his l icense. Jam ie did obtain his state and l ocal license in Se ptem b er 2006. I transf

erred all the pr e v i ous perm its t o his responsibility .” V ail testif ied that she placed a c opy of this m em o in t he perm it f i les of the Residence and all the other properties listed in Guy ton’s April 11, 2 0 0 6 , letter, and that the p u rpose o f the m em o w as to provide inf orm a t ion a s t o w h a t had occurred.

4 A t th e trial, it w as estab l ish ed th at V ail’s b e lief th at E w in g h a d a six -m o n th g race p erio d in w h ich to b eco m e licen sed w as erro n eo u s. 1 9Aug. 23, 2007 T h e McMillins served a notice of claim on the C i t y b a s e d o n V a i l ’ s neg l i g e n c e in allowing c o nstruction t o continue under Ewing, an unlicensed contractor.
Dec. 2007 Th e M c M i l l i n s i s s u e d a s ubpoena f or the City ’s r ecords, and f or the f irst tim e they received the perm it f ile. The April 5, 2006, letter was not in any of the subpoenaed records. Terry t estif ied t hat t hey decided not to initiate litigation against the City because the perm it f i le, including Vail’s January 200 7 m em o, showed that Deas had succeeded Guy ton as the licensed contractor f or the Residence.
Dec. 2008 The McMillins joined D eas in their chancery court suit. Terry McMillin

testif ied that they joined Deas in relianc e o n Vail’s January 2007 m e m o . Jan. 6, 2009 E w i n g s u b mitted an af f idavit say ing Deas h a d n o t b e e n i n v o l v e d i n constructing the Residence. Mar. 18, 2010 Deas asked to be voluntarily dism issed f rom the McMilli n s ’ s u i t a n d attached an af

f idavit f rom Vail. Vail’s af

f idavit explained that she erroneously had listed Deas as the licensed c o ntractor on the building perm i t f or the Residence. V a i l s tated that, if she had r e a l i z e d t h at the Residence had no licensed contractor when Guy ton w i t h drew, “construction would have stopped u n t il a licensed contractor was in place.” Deas also attached his April 5, 2006, letter in which he assum ed respon s i b i l i t

y fo r G u y t o n ’ s H a r vester’s Square perm its. The McMillins, unsure what was true, elected not to dism iss Deas f rom the suit.
Nov. 2011 The Chancery Court of Lee County granted sum m ary judgm ent to Deas

o n t h e ground that his l isting as the licensed c ontractor was the result of a clerical m istake.
Mar. 17, 2011 The McMillins subm itted t heir second notice o f claim against the City

. Oct. 13, 2 0 11 The McMillins f iled the instant com

plaint a gainst the City in the Circuit Court of Lee County

. B. Standard of Review

2 0¶34. The c ircuit court j udge is the f inder of f act in a lawsuit b rought u nder t he Mississippi
Tort Claim s A ct. Miss. Code A n n . § 1 1

- 46-13(1) (Rev. 2012). This Court a f f ords a trial judge sitting without a j ury the sam e def erence as a c hancellor. City of Jackson v. S andifer , 107 So. 3d 978, 983 (Mis s . 2 0 1 3 )

. If the circuit court’s f act f indings are s upported by substantial, credible, and reasonable evidence, then this Court m ust af f irm

. City of Jackson

v. Lewis , 153 So. 3d 689, 693 (Mi s s . 2 0 1 4 )

. W e will not disturb the circuit court’s

c o nclusions unless they were m anif estly wrong, c learly erroneous, or resulted f rom the application of t he wrong legal standard. Id. The circui t c o u rt has the sole authority to determ ine the c redibility of witnesses. City of Jackson v. Lipsey , 834 So. 2d 687, 691 (Miss. 2003). Additionally , the circuit c ourt, a s t he f act f i nder, is entrusted w ith resolving conf licts in the evidence. Borne v. Estate of Carraway , 118 So. 3d 571, 581 (Miss. 2013). C. Analysis 1. Equitable estoppel ¶35. Under the Mississippi Tort Claim s Act, a claim ant m ust com m ence an a ction “within

one (1) y ear af

ter the d ate of the tortious, wrongf ul or otherwise a ctionable conduct on which the liability phase of the action is based.” Miss. Code Ann. § 11

- 4 6

- 1 1 ( 3 ) ( a ) (Rev. 2012). Statutory tolling periods extend the tim e the plaintif f has to com m e nce an action. Id. ¶36. The alleged actionable conduct that f orm ed the basis of the McMillins’ c ircuit court lawsuit against the City occurred i n 2006 and 2007. The M cMillins f iled their f

irst notice of claim against the City

in August 2007. Terry

McMillin testif

ied that the plaintif

f s received the perm i t f

i le f or the Residence i n Decem b er 2 007. The perm it f

ile did not contain Deas’s

2 1letter o f April 5, 2006, but i t did c ontain V a i l ’ s J a n u a ry 2007 m e m o stating that Deas had

succeeded Guy

ton as the licensed c ontractor f o r the Residence. Terry McMillin testif ied that, because the per m it f

ile showed that D eas had taken over as the licensed contractor f or the Residence, no m isconduct by the City was apparent, so the McMillins d ecided not to sue the City

. Terry McMillin testif i ed that, in M arch 2010, during the litigation aga i n s t D e as, he received Vail’s a f

f idavit stating that she m istakenly h ad l isted Deas as the l icensed contractor f or the Residence. At that tim e, Terry McMillin a l s o r e c e i v e d Deas’s letter dated April 5,
2006. Based on this n e w inf o rm ation, on March 17, 2011, the McMillins f i l e d a second notice of claim against the City , and they f iled suit against the City

on October 13, 2011. ¶37. The circuit c ourt f

ound that the McMillins’ l awsuit against the City was tim e barred, but that the City was equitably e stopped f rom raising t he tim e bar as a def ense d u e to intentionally m isleading conduct by Vail. The circuit c o urt m a d e two f act f indings regarding Vail’s conduct that are central to this case. F irst, t he c ircui t c o urt f o und that Vail’s substitution of D eas as t he licensed contractor af ter G uy ton’s withdrawal was a clerical

m istake caused by Vail’s m isreading the letters f r om Guy ton, Ewing, and D eas. Second, the circuit court f

ound that Vail had placed the January 2007 m e m o in t he perm it f ile in an ef

f ort to “cover up her purportedly ‘honest m istake.’” ¶38. To prevail o n a c laim of equitable estoppel, a plaintif f m ust prove by a preponderance of the evidence t hat “(1) it was induced by t he conduct of [ t h e def endant] not to f

ile its

com plaint sooner, (2) resulting i n its claim being b arred b y the [ applicable] lim itations, and (3) [ the d ef

endant] knew or had reason t o k n ow that such consequences would f ollow.”

2 2Townes v. Rusty Ellis Buil der, Inc. , 98 So. 3 d 1 046, 1055 (Miss. 2012). Also, the def endant’s conduct m

ust have been inequitable. Miss. Dep’t of Public Safety v. Stringer , 748 So. 2d 662, 665 (Miss. 1999). ¶39. I w ould hold that the circuit c o u r t ’ s f inding that the elem ents of equitable estoppel

were me t w a s supported by substantial evidence and was n ot m a n if estly wrong or clearly

erroneous. The circuit court’s f i nding that the perm it f

ile s howed t hat Deas had s ucceeded Guy ton as the licensed contractor f or the Residence was substantially supported by contents of the perm it f

ile. Although the perm it f ile contained a n O ctober 30, 2006, letter f rom Deas deny ing any involvem ent with the Residence, all representations by the City contained in the
perm it f i le, including Vail’s January 2007 m e m o, were to the ef f e ct that Deas had s ucceeded Guy ton as the licensed contractor. The circuit court was entitled t o rely on Terry McMillin’s testim o ny that the p erm i t f ile, which showed that a l icensed c ontractor was in place at all tim es, h ad induced the McMillins not to sue the City

. Terry McM i l l i n ’ s testim ony in this regard was corroborated by the f act that t he McMillins did not sue the City until they had received Vail’s af

f i davit, in which Vail adm itted that she m i stakenly h ad listed Deas as the

contractor. Further, the c ircuit court was e n titled t o weigh Vail’s credibility and to f ind that her placem ent of the J anuary 2007 m em o in the f i le was not innocent , b u t r a ther was an intentional e f

f ort to conceal her m istake. 5 And it is e lem entary that Vail, as a public of f icial, reasonably should have known that placing m i sinf orm a tion in the perm it f

ile, a public record,

5 T h e m aj o rity sim

p ly i g n o r es th e circu it co u rt’s f in d in g t h a t V ail en g ag ed in in ten tio n ally m islead i n g co n d u c t, h o ld in g th at V ail o n ly m a d e a clerical m istak e th at can n o t, as a m atter o f law , f

o r m a b asis f

o r eq u itab le esto p p el. In so d o i n g , th e m aj o r ity in v ad es th e f act f in d i n g f u n ctio n o f

th e circu it co u r

t. 2 3could c ause lit i g a t i o n to be delay ed or otherwise af f ected. Certainly , placing intentionally

m isleading i n f

orm ation identif

y ing the responsible licensed contractor in a perm it f ile can be considered inequitable conduct. Apply i ng this Court’s def erential standard of review, I would af f irm the circuit court’s f

inding that the City was equitably estopped f rom r aising the statute of lim itations as a def

ense to the McMillins’ lawsuit. 2. Liability

under the Mississippi Tort Claim s Act ¶40. The C i t y c l a i med im m unity under M ississippi Code Section 1 1-46-9(1)(h), which provides: (1) A governm ental entity and its em ploy ees acti n g w ithin the course and scope of their em

ploy m ent or duties shall not be liable f or any claim :

. . . (h) Arising out of the issuance, denial , s uspension o r revocation of , or the f ailure o r ref

usal to issue, deny , suspend or revoke a ny privilege, ticket, pass, perm it, license, certif

icate, approval, order or sim ilar authorization w here the governm e ntal entity or its em ploy ee is authorized by law to determ ine whether or not such authorization should be issued, denied, s u spended or revoked unl e s s such issuance, denial, suspension or revocation, or f ailure or r ef

usal thereof , is of a m alicious or arbitrary

and capricious nature; Miss. Code Ann. § 11-46-9(1)(h) (Rev. 2012). ¶41. The circuit c ourt f o und that Vail had acted arbitrarily a nd cap r i c i o u s l y b e cause her

m istake in listing D eas as t he contractor f or the Residence had violated her duty as the perm it clerk to ensure that builders of r e sidential property in the C ity are licensed. The c i rcuit court f ound that the City , acting through the perm it of f ice, had duties to: (1 ) e n s u r e t hat a licensed contract[ or] was working on the H om e f or the entirety of the construction; (2) on the withdrawal o f the Guy ton license, stop construction; (3) prevent construction f rom resum ing u ntil suc h t i me as a

2 4licensed contractor agreed to be r esponsible f or the construction; (4) properly process t he Guy

t on withdrawal; (5) stop construction when the Perm it expired; and (6) ref

rain f rom placing in the f

ile m isleading untruthf

ul papers. ¶42. The m a

jority f inds t hat the circuit court e r red in f inding that the C ity had these duties. In so f inding, the m ajority relies on Mississippi Code Section 73-59-17, which provides: The building o f

f i c i a l, or other authority charged w ith t he duty of issuing building or s im ilar p erm its, of any m unicipality or county , shall ref use to issue a perm it f or any undertaking which would classif y the applicant a s a residential builder or rem odeler under this c hapter unless the a p p l i cant has f urnished evidence that he is either licensed as required by t his chapter o r exem pt f rom the requirem e nts of this chapter. The buil d i n g of f i cial, or other a

uthority charged with the d

uty o f issuing building or sim ilar perm its, shall a lso report to the board the n am e and address of any person who, in his opinion , h a s violated this chapter by

accepting, or contracting to accom plish, work which would c l a s s i f

y the person as a residential builder or rem odeler under this chapter without a license or acknowledgm ent. Miss. Code Ann. § 73-59-17 (Rev

. 2 0 1 2 )

. The m ajority f i nds that, because Guy

ton was licensed when t he City issued the perm it, the City violated no duty u nder this s tatute. Even

assum i n g t

h a t S e ction 73-59-17 i m

posed no duties on the City bey ond ref raining f r om issuing

a building p erm it to an unlicensed contractor, the reco r d i n t h i s case s h ows that a city ordinance im

posed additional duties upon the perm it of f ice. ¶43. In her af

f i davit, V ail t estif

ied about Guy

t on’s presentation of the handwritten note on April 4 , 2006, s tating t hat he was withdrawing all perm its attached to his contractor’s license. She stated:
I told Mr. Guy

ton that I n eeded the statem ent notarized and that he needed to state he released t he perm its so that c o n struction could continue under the sam e perm its once a licensed contractor took over. Otherwise, construction on the houses under construction pursuant to t he various building permits in his nam e would have to stop and could not begin again until a new building permit was issued. This is a requirement of Tupelo’s Development Code

.
2 5(Em

phasis added.) Vail rendered f urther testim ony about the code requirem ent at the trial. She acknowledged that the city ordinance requiring that the City stop construction upon the withdrawal of t he licensed contractor associated with the perm it was c ontained in the Tupelo Developm ent Code that had b een in place u n til Novem ber 1, 2013. She explained that, according to this city

ordinance, a licensed contractor w ho q uits m ust release t he perm it so construction c an c ontinue under a new licensed contractor, or construct i o n m u s t stop and

cannot begin anew until a new perm it is issued. In Vail’s af f idavit, she s tated that, i f she had realized that the Residence was without a l i c e n s e d contractor during i ts c onstruction, “construction would have been stopped until a licensed co n t ractor was in place.” David
W a m m ack, the City ’s c hief building inspector, also testif ied about the ordinance, stating that
“one of t he requirem ents of t he City of Tupelo Code of Ordinance is t hat t here be a licensed contractor on the project . . . .” ¶44. The city ordinance provided a basis f or the circuit court’s f

i nding that t he City had a duty t o ensure that a licensed contractor was working on the Residence and, when Guy ton withdrew, t o stop construction unless Guy ton released the p e r mi t t o another licensed

contractor. The circuit c ourt f ound that Vail had breached that d u ty by listing Deas erroneously as the successor contractor on the Residence, and that this action was arbitrary and capricious. The m ajority f inds that Vail did not act arbitrarily and capriciously because her listing o f Deas was a c lerical m istake that cannot rise t o the level of a r b i t r a r y a nd capricious action as a m a t t e r of law. I disagree. As the m ajority recognizes, “the f ailure of

an a gency to abide by its rules is per se arbitrary and capricious as i s the f a ilure of an

2 6adm inistrativ e b o d y t o conf orm to prior p rocedure without adequate e xplanation f or the change.” L owe v. Lowndes Cty. Bldg. Inspection Dep’t , 760 So. 2d 711, 714 (Miss. 2000) (quoting Miss. Dep’t o

f E nvtl. Quality v. Weem s , 653 So. 2d 266 (Miss. 1995)). The circuit

court held that Vail’s actions w ere arbitrary and capricious b ecause, i n listing Deas as the

contractor f

or the Residence, she f

ailed to f ollow t he a

pplicable rules. Because t he evidence supported the f

inding that Vail f

ailed to f ollow a city ordinance, I wou l d af f irm the circuit
court’s f inding that Vail’s error in listing Deas a s t he licensed contractor f or the R esidence was arbitrary

and capricious. ¶45. I also would af

f irm t he circuit c o u r t ’ s f i n d i n g t h a t V a i l a c t e d a r b itrarily and capriciously by p l acing the January 2007 m em o i n the perm it f ile. Although Vail testif

ied that, when she a

uthored the m e m o, she legitim ately believed t hat D eas had succeeded Guy ton

as the licensed contractor f or the Residence, the circuit court w as entitled weigh the evidence and m a k e a determ ination about Vail’s credibility

. Lipsey , 834 S o. 2d at 6 91. The circuit
court’s f inding that Vail intentionally had placed f alse inf orm a t ion i n the perm i t f

ile was supported by s ubstantial e vidence. The perm it f ile contained Deas’s October 26, 2006, letter deny ing a ny involvem ent with the Residence’s construction and stating that the inclusion of
h i s n a me i n t h e perm it f

ile was the result of a clerical error by t he City

. Terry McMilli n testif i ed that, on Novem

ber 20, 2006, he went to t he p erm it of f ice a nd asked Vail whether
Deas had been involved in t he c onstruction, and s he responded b y directing h im to the perm it
f ile, which he was unable t o obtain. And m issing f rom the perm it f

ile was the April 5, 2006, letter that was the key to understanding that Deas’s listing as the c ontractor w as erroneous.

2 7This e vidence strongly supported the circui t court’s credibility determ ination that Vail’s

intent when she a

uthored the January 2007 m em o w a s t o ma k e it appear t hat a licensed contractor had been assigned to the construction of the Residence at all tim es. ¶46. I next address the City ’ s argum ent that Vail’s actions were subject to discretionary

f unction im m

u nity under Mississippi Code Section 11-46-9(1)(d), which states: (1) A governm ental entity and i t s em ploy ees acting within the course and scope of their em

ploy m ent or duties shall not be liable f or any claim :

. . . (d) Based upon the exercise or perf orm ance or the f

ailu r e t o e x e r cise or perf orm a discretionary f

unction or duty o n the part of a governm ental entity or em ploy ee thereof

, whether or not the discretion be abused; . . . . Miss. Code A nn. § 11-46-9(1)(d) ( R e v . 2 0 12). A m inisterial f unction is o ne that is “positively im

posed b y law.” Little v. M iss. Dep’t of Transp. , 1 29 So. 3 d 13 2 , 136 (Miss. 2013) (citing Pratt v

. Gulfport–Biloxi Reg’l Airport Auth. , 97 So. 3d 68, 7 2 ( Miss. 2012)). The City had a d

uty , positively im

posed by its o rdinance, to ensur e t h a t , i f a licensed

contractor withdrew, another was substituted or the construction halted u ntil a n e w perm it

was issued. The City had no dis c r e t i o n t o d i sobey this m andate. The C ity ’s duty under the ordinance was m inisterial, not discretionary , and the City was not entitled t o discretionary

f unction im m

u nity

. ¶47. The circuit court also held t hat the City f ailed to exercise ordinary care, a f inding that
im p licates im m

u nity u nder Mississippi Code Section 11-46-9(1)(b). That section provides: (1) A governm ental entity and its em ploy ees acting within the c o urs e a n d scope of their em

ploy m ent or duties shall not be liable f or any claim :

2 8. . .

(b) Arising o ut of any act or om ission of an e m ploy ee of a governm ental entity exercising ordinary care i n reliance u pon, or in the execution or perf orm ance of , or in t he f

ailure to e xecute or p e r f

o r m, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid; Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2012). Under this section, a governm ental entity is “protected f

rom liability while perf

orm ing or f

ailing to perf

orm a statutory duty so long as ordinary care is exercised.” Lang v. Ba y St. Louis/Waveland Sch. Dist. , 764 So. 2d 1234,
1240 (Miss.1999). “The question of whether ordinary care w as, in f act, exercised is f

or the trial court, sitting w ithout a jury , to decide.” Stewart ex rel. Wom ack v. City of Jackson , 804
So. 2d 1041, 1048 (Miss. 2 002) (quoting Lang , 764 So. 2 d a t 1240).“The standard of care applicable in cases of alleged negligent conduct is whether the party charged with negligence acted a s a reasonable and prudent person would have under the sa me or sim ilar circum stances.” Donald v. Am oco Prod. Co. , 735 So. 2d 161, 175 (Miss. 1999). ¶48. The circuit court f ound that the City h a d n o t a c t e d w i t h o r d i n a r y care in the perf orm ance of its duties im

posed by law. The circuit court stated: That the of

f ice p laced Deas’s nam e as the contractor of record w a s , at f irst, a m istake. However, when the of f ice was put on notice by Deas that such a m istake h ad been m a d e , ordinary care required the D ef endant to notif

y the people concerned a nd not subsequently f ile a paper i n plain contradiction of the truth. The Def

e ndant was also put on notice by letters f rom Dr. McMillin, Deas, and c alls f

rom [ the McMillins’ realtor] Sue Gardner. E v en a visit by Dr. McMillin to their of

f ice about why Deas’s nam e was associated with this Hom e did not provide any answers to the Plaintif f s. Instead, V a i l magnif

ied the error by placing the January 2007 M e m o i n t h e Plaintif f s [ ’] Perm it File stating Deas was “taking responsibility ” f o r the Hom e. E ven when asked by Dr. McMillin directly , Vail ref used to answer his questions, com p ounding the error. Vail told Dr. McMillin to go look at h is Perm it File but when he asked to see his f

ile, another City

em ploy ee ref

used to let him

see his own f

ile.

2 9The paperwork in the Hom e’s P erm it File c e r t a i n l y s h o w s t

h a t q uestions were being asked by t he P laintif f s, that the Plaintif

f s had hired an attorney and were contem

plating f iling suit, and t h a t Sue Gardner a nd the Plaintif f s were telling [ V ail that] Ewing was n ot licensed w i t h the Mississippi Board of Contractors. Def

endants still continued to ignore the problem and did not u se ordinary care t o address the situation and relieve the conf u s i o n. Vail did the opposite by pla c i n g the J anuary 2007 m e m o in the f ile. Ordinary care, at the very least, would require Vail to call, m ail a letter or e m ail the P laintif f s about issues they were having with their hom e. T his was, at the very least, negligent m isrepresentation. These f act f indings were f

u lly supported by the record. I would f ind that the circuit court did

not m anif estly err in f

inding that the City f

ailed to exercise ordinary care in the perf orm ance of the duties im

posed by the ordinance. ¶49. The circuit court held that, but f or Vail’s f ailure to process G uy

ton’s withdrawal f

rom the construction of t he R esidence properly , c onstruction would have stopped in April 2006. And, the circuit court held tha t , i f V a il had properly f iled the April 5, 2006, letter and ref rained f rom placing the January 2007 m em o i n the perm it f ile, acts t hat f

alsely im plicated
Deas as t he licensed contractor, t hen the McMillins w o u l d n o t have incurred legal f ees in their litigation against Deas. I would f ind that the circuit court c om m itted no legal error in

m aking these proxim ate-cause f indings, which were supported by substantial evidence. ¶50. The circuit court awarded t h e M c M i l l i n s $ 9 , 3 1 9

. 2 3 as dam ages f or the cost of repairing the shoddy work that was perf orm e d on t he Residence af ter Guy ton’s d eparture on April 11, 2 006. The circuit court also f ound that the McMillins were entitled t o d am ages in the am ount o f the legal f

ees they had incurred in their suit against Deas. On appeal, the City

com plains that the award of $105,894.39 i n legal f ees was e rroneous because it included f ees that t he McMillins had incurred in their litigation against Ewing a n d the two b anks. Because

3 0the circuit court’s f indings do n ot support the McMillins’ recovery of a t torney f ees incurred
in their litigation against Ewing and the banks, nor did they claim a right to recover such f ees, I w ould reverse the award of l e g a l f ees and rem and f

or the circuit court to award the McMillins the am ount of legal f ees they incurred in litigation against Deas. ¶51. In conclusion, Vail’s clerical m istake in s ubstituting Deas as the licensed contractor f or the Residence o n April 11, 2 0 0 6 , was arbitrary a nd capricious because Vail’s actions violated a city ordinance. I also w ould hold that the City i s not entitled to d i s cretionary

f unction im m

unity , and I would af

f irm the chancellor’s f

act f inding that the City f

ailed to

e x e r c ise ordinary care in the perf orm ance of duties i m

p osed by a city ordinance. An d I believe t he m ajority errs b y r eweighing the evidence b ef ore the circuit court and f

i nding that Vail’s m isconduct was lim ited to her clerical m istake. The circuit court f ound t h at Vail intentionally placed a f

alse m em orandum in the perm it f i le t hat caused the McMillins to drop their action against the City and pursue a chancery

court suit against Deas. ¶52. I would af

f irm the circuit c ourt’s f

inding that the City was e quitably estopped f rom raising the statute o f lim i tations def ense due to Vail’s m isleading conduct. I al s o would af f irm the circuit court’s f

inding that t h e City was not im m une f rom liability under the Mississippi Tort C laim s Act. I would af f irm i n part and r everse in part and rem and f or the circuit court to award the McMillins legal f ees in the am o unt that they incurred in litigation against Deas. KING, J., JOINS THIS OPINION.

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