IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CA-02772-SCT

THE CITY OF JACKSON

v.

THE INTERNAL ENGINE PARTS GROUP, INC.

a/k/a ENGINE PARTS WAREHOUSE JACKSON

AND CLEARBROOK HOLDINGS, LLC

DATE OF JUDGMENT: 11/24/2003

TRIAL JUDGE: HON. W. SWAN YERGER

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: BARBARA A. BLUNTSON

ATTORNEYS FOR APPELLEES: JOSEPH E. LOTTERHOS

CHARLES FRANK FAIR BARBOUR

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE

DISPOSITION: AFFIRMED - 03/31/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.

RANDOLPH, JUSTICE, FOR THE COURT:

¶1. The Internal Engine Parts Group, Inc. a/k/a Engine Parts Warehouse Jackson, and

Clearbrook Holdings, LLC (collectively referred to as “Engine Parts”) filed a complaint

against the City of Jackson, on January 23, 2002, in the Hinds County Ci rcuit Court. The

complaint sought to rec over damages for alleged acts of negligence and breach of contract

aga inst the City of Jackson for property damage sustained during a period of heavy rainfall and

flooding. On November 24, 2003, the circuit court entered its verdict and judgment awarding

$369,480.32 in favor of Engine Parts. On December 4, 2003, the City of Jackson filed its1 Carlos Bean passed away before the date of the trial.

2 Post-Trial Motion for Amendmen t or Reconsideration of Findings and Judgment and/or in the

alternative Motion for New Trial. On December 17, 2003, the circuit court entered its Order

Denying the City of Jackson’s Post Trial Motion. This appeal followed.

FACTS

¶2. Engine Parts owns and operates a business located at 811 South Gallatin Street,

Jackson, Hinds County, Mississippi. On the morning of August 12, 2001, the metro area of

Jackson received a large amount of rainfall. Many areas around Jackson flooded, including the

area of Gallatin S treet where Engine Parts is located. Engine Parts alleged that the flooding

of its property was caused by a nearby drainage ditch that was filled with pre-existing debris

and materials which obstruct ed the flow of water. This drainage ditch runs under Gallatin

Street near the intersection of Gallatin Street and Hiawatha. The City of Jackson maintains the

city’s drainage ditches.

¶3. Al Campbell, who owns a building near Engine Parts, testified that prior to the flood

he contacted the City five to six times to tell them that the drainage ditch was fil led with

debris. The debris consisted of furniture, mattresses, logs, and brush. He also testified that

about thirty days prior to the flood, Carlos Bea n, 1 the manager of Engine Parts, had called the

City to inform them about the drainage ditch. The City did not respond to these calls and failed

to clean out the debris from the ditch until after the flood. Prior to this date, the Engine Parts

building had never flooded, even during the Jackson Easter Flood of 1979 and was not located

within a flood zone.3

¶4. As a result of the obstructions to t he flow of water, up to 34 inches of water flooded

Engine Part’s building. The building incurred substantial damage and the inventory stored

therein was destroyed. It was stipulated that Engine Parts suffered $369,480.32 in damages.

¶5. Engine Parts submitted its Notice of Claim pursuant to the Mississi ppi Tort Claims Act,

Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002 & Supp. 2004), and, subsequently, filed its

complaint against the City of Ja ckson on January 23, 2002. Following a bench trial, the court

awarded Engine Parts $369,480.32.

ANALYSIS

¶6. The City of Jackson raises the following issues on appeal:

I. Whether th

e trial court erred by failing to find that the City

of Jackson was exempt or immune from liability pursuant to

the Mississippi Tort Claims Act.

II. Whether the trial c ourt erred by failing to allow testimony

of two of the City of Jackson’s fact witnesses.

III. Whether the judgment of the trial court was against the

overwhelming weight of the evidence.

IV. W hether the trial court erred in denying the Cit y of

Jackson’s post-trial motion for amendment or

reconsideration or in the alternative motion for new trial.

V. Whether the trial court erred in failing to make a findings

of fact and conclusions of law pursuant to Rule 52(a) of the

Mississippi Rules of Civil Procedure.4

¶7. The standard of review for a jud gment following a bench trial is as follows: “A circuit

court judge sitting without a jury is accorded the same defere nce with regard to his findings

as a chancellor, and his findings are safe on appeal where they are supported by substantial,

credible, and reasonable evidence.” City of Jackson v. Perry

, 76 4 So. 2d 373, 376 (Miss.

20 00). Questions of law, which include the proper allocation of the Mississippi Tort Claims

Act, are reviewed de novo. Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000).

I. Whether the trial court erred by failing to find that the City

of Jackson was exempt or immune from liability pursuant to

the Mississippi Tort Claims Act.

¶8. This case was brought under the Mississipp i Tort Claims Act, which permits negligence

actions against state agencies under certain c ircumstances. S impson v. City of Pickens

, 761

So. 2d 855, 860 (Miss. 20 00). The City of Jackson argues that the circumstances of the

instant action f

all under one of the exemptions, i.e., § 11-46-9(1)(v). This section reads in

pertinent part:

(1) A governmental ent ity and its employees acting within the

course and scope of their employment or duti es shall not be

liable for any claim:

* * *

(v) Arising out of an injury caused by a dangerous condition on

property of the gove rnmental entity that was not caused by the

n egligent or other wrongful conduct of an employee of the

governmental entity or of which the governmen tal entity did not

ha ve notice, either actual or constructive, and adequate

opportunity to protect or warn against; provided, howev er, that a

governmental entity shall not be liable for the failure to w arn of

a dangerous condition which is obvious to one exer cising due

care.

Miss. Code Ann. § 11-46-9(1)(v).5

¶9. After reviewing all of the evidence, the trial judge determined that the flooding of

Engine Parts was caused by the City’s negligence. The following facts and circumstances were

establish ed by the evidence: (A) there was a drainage ditch filled with debris which the City

inspected and maintained; (B) the hazardous condition, in com bination with the flood, was

caused or contri

buted to by the negligence and wrongful conduct of the City employees in

failing to regularly inspect and maintain the subject drainage ditch; (C) the evidence clearly

established that the City through its employees, either knew or should have known that this

condition existed prior to t he flood; as testimony revealed that its employees were notified

five or six times in the year prior to the flood, and were notified again a month before the flood

that the debris obstruction existed, and (D) because the City was notified of the debris in the

drainage ditch well before the flood, it had adequate opportun ity to remove or clean up the

hazard created by the debris. This Court finds that the trial court’s findings were supported

by substantial, credible, and reasonable evidence.

¶10. First, the City of Jacks on argues that the flash flood that occurred on August 12, 2001,

was the dangerous condition and that it had no notice of this dangerous condition until after it

had happened. This argument is flawed. The City of Jackson, by its negligent failure to inspect

and maintain the drainage dit ch, created a separate dangerous condition; i.e. an obstructed

drainage ditch thr ough which water could not properly flow, which proximately caused or

contributed to the flooding of Engine Parts’ building. There was substantial credible evidence

to support the trial court’s finding that the City had either actual or constructive n otice of the

debris obstructions.6

¶11. The City of Jackson also contends that, even if notice had been provided, it should not

be held liable for a failure to warn of a dangerous cond ition which is obvious to one exercising

due care, citing C ity of Clinton v. Smith

, 861 So. 2d 323 (Miss. 2003). In S mith

, the plaintiff

slipped and fell on snow and ice while leaving a mu nicipal court building. The circuit court

ruled that there was no immunity available to the City of Clinton because the city had eith e r

actual or constructive knowledge o f the dangerous condition. I d. at 326. However, this Court

reversed and found that the trial court erred when failing to look at the entire language of Miss.

Code Ann. §11-46-9(1), and found that the city was n ot liable for failure to warn of the

dangerous condition because the condition was open and obvious in that Smith knew that the

steps were covered with ice and snow and that he wasn’t paying attention. I d. at 327. However,

the case before the Court today is not a failure to warn case. The issue here is not whether the

City was negligent for failing to warn of a dangerous condition, but rather wh ether the City was

negligent for failing to inspect and mainta in the drainage ditch, and consequently allowing a

dangerous condition to continue to exist.

¶12. The City argues that the trial court’s decision regarding immunity was based u pon Miss.

Code Ann. §11 -46-3(3), cited in the verdict as §11-46-3(c), regarding immunity based upon

a propri etary obligation or function, which is no longer valid. The trial court was presented

with arguments regarding §11-46-9 during the City of Jackson’s motion for directed v erdict

whic h was denied. Section 11-46-9 is the applicable statute to determine the immunity of the

City, and § 11-46-9 fails to establish such immunity. This issue is without merit.

II. Whether the trial court erred by failing to allow testimony

of two of the City of Jackson’s fact witnesses.7

¶13. On February 27, 2002, Engine Parts submi tted its First Set of Interrogatories to the

City of Jackson. Engine Parts filed a Motion to Compel Discovery, and the City of Jackson

submitted it s Response to the interrogatories on June 17, 2002. Engine Parts’ Interrogatory

Numbers 2 and 3 and the City of Jackson’s respective responses were as follows:

Interrogatory No. 2: Identify by name, address and present whereabouts

each perso n other than an expert whom you will call as a witness at the

trial of this case and state after each person the subject or subjects upon

which he or she is expected to testify.

Respon se : This has yet to be determined, but this response will be

supplemented in a seasonable manner pursuant to the Mississippi Rules

of Civil Procedure.

Interrogatory No. 3 : Identify by name, address and present whereabouts

all persons who you claim to have knowledge of t he facts and claims set

forth in your answer.

Response : Dan Still

. . . Lanier Wilcher . . . Mavis Collins . . . and Bwana

Jones.

¶14. On December 20, 2002, the trial court entered its Order Setting Deadlines for

Discovery wherei

n both parties were to have completed all discovery by April 30, 2003. A

pre-tria l conference was held on October 29, 2003. At this conference, the trial court ordered

the parties to exchange final witness lists by October 31, 2003. On October 31, 2003 (six

days prior to trial), the City of Jackson produced a witness list that i ncluded nine individuals.

Of these nine individuals, only two witnesses, Lanier Wilcher and Mavis Collins, had been

previous ly identified by the City of Jackson’s response to Interrogatory No. 3 as having any

knowledge of the facts and claims of t he case. Engine Parts then filed a Motion in Limine to

exclude the testimony of all witnesses other than those who had prev iously been identified in

t he City’s response to Interrogatory No. 3. In granting the motion the trial judge stated that,8

“there has been ample op p ortunity here since December, at least December of last year, which

is almost a year ago, for compliance with notification as to who the anticipated witnesses, or

who will be called for trial testimony by the city. And that has not been done.” The trial judge

referred to Busick v. St. John

, 856 So. 2d 304 (Miss. 2003), when maki ng his ruling to

exclude the testimony of the newly added witnesses.

¶15. “The trial court has wide and considerable discretion in matte rs relating to discovery;

its order will not be disturbed unless there has been an abuse of disc retion.” I d. at 319. In

Busick

, the plaintiff requested permission to allow the testimony of her husband 17 days

before the start of the trial, furthermore she offered her mother and daughter as witnesses the

day of the trial. I

d. at 320. In ruling that the testimony of the surprise witnesses was properly

excluded, this Court stated that “[w]e h ave long held that the rules of discovery are to prevent

trial by ambush." Id. at 321 (citing Choctaw Maid Farms, Inc. v. Hailey

, 822 So. 2d 911, 917

(Miss. 2002)). Furthermore, this Court has found that “trial courts are committed to the

discovery rules because they promote fair trials. Once an opponent requests discoverable

material, an attorney has a duty to comply with the request regard less of the advantage a

surprise may bring." Id., citing Williams v. Dixie Elec. Power Ass'n , 514 So.2d 332, 335

(Miss. 1987).

¶16. The City of Jackson argues that the Court in B usick not only determined that the

disclosure was untimely, but that the exclusion of the witnesses did not result in prej udice to

the plaintiff. While the Court did find in B usick that the exclusion of the witnesses did not

result in prejudice, this Court has ruled that litigants have an obligation to timely comply with9

the orders of the tr

i al courts. S alts v. Gulf Nat’l Life Ins. Co.

, 872 So. 2d 667, 674 (Miss.

2004). This Court stated in S alts, quoting Bowie v. Montford Jones Me morial Hospital , 861

So. 2d 1037, 1042 (Miss. 2003), that,

Our trial judges are afforded considerable discretion in managing the

pre-trial discovery process in their courts, including the entry of

scheduling orders setting out various deadlin e s to assure orderly pre-trial

preparation resulting in timely disposition of the cases. Our trial ju d ges

also have a righ

t to expect compliance with their orders, and when parties

and/or attorneys fail to adhere to the provisions of t hese orders, they

should be prepared to do so at their own peril (citations omitted).

* * *

Wh ile the end result in today's case may appear to be harsh, litigants

must und erstand that there is an obligation to timely comply with the

orders of our trial courts.

Id.

¶17. The trial judge here was correct in excluding the testimony of the newly added

witnesses. The City submitted its discovery responses on June 17, 2002. The trial court

entered the discovery order on December 20, 2002, designating all discovery to be complete

on April 30, 2003. The City had almost a year to supplement its responses and failed to do so.

Furthermore, the City waited an additional six months af ter discovery was closed to reveal

additional witnesses, an

d then only within a week of the trial. Therefore, the proposed

witnesses were correctly precluded from testifying at trial.

III. Whether the judg ment of the trial court was against the

weight of the evidence.

¶18. The City o f Jackson argues that the judgment of the trial court was against the weight

of the evidence. However, the City cites no authority for this proposition. This Court is under

no duty to consider assignments of error when no authority is cited. H ewlett v. State

, 60710

So.2d 1097, 1106 (Miss. 1992). T h is Court has repeatedly held that failure to cite any

authority may be treated as a procedural bar

. W illiams v. S tate, 7 08 So. 2d 1358, 1361 (Miss.

1998)

. The City is procedurally barred from presenting this argument on appeal.

IV. Whether the trial court erred in denying the city of

Jackson’s post-trial motion for amendment or

reconsideration or in the alternative motion for new trial.

¶19. M.R.C.P. 59(e) allows an aggrieved party to make a motion to t he court to alter

or

amend its judgment. B ang v. Pittman, 749 So.2d 47, 52 (Miss. 1999). Review of a trial

judge's denial of a Rule 59 motion is limited to abuse of discretion. I d. T he City argues t

hat

its motion for amendment placed the trial court o n notice that there was a clear error of law

in the court’s verdict and judgment. In its motion, the City stated that, “the final Judgment and

Order are contrary to the evidence and the law of the case, which should be governed

exclusively by the Mississippi Torts Claim Act § 11-46-11 (2003).” It is by this statement that

th e City argues that it put the trial court on notice that there was a clear error of law in the

court’s judgment. This Court disagrees. The City’s motion did not assert that the judgment

re ferenced law that was no longer applicable and did not raise any issues under §11-46-9(1)(v)

or §11-46-3. The City did not present this issue to the trial court in its motion for amendment

or for new trial. Having failed to preserve the issue, the City of Jackson is barred from raising

it n o w on appeal. M

aterials Transp. Co. v. Newman, 656 So. 2d 1199, 1203 (Miss. 1995).

¶20. Notwithstanding the procedural bar, although the judgmen t contained references to §11-

46-3(3) (cited in the verdict as 11-46-3(c)), a statute that was no longer a pplicable, the correct

result w as obtained. Miss. Code Ann. §11-46-9(1)(v) does not provide immunity to the City

of Jackson

, and as such this issue is without merit.11

V. Whether the trial court erred in fail ing to make specific

findings of fact and conclusions of law purs uant to Rule

52(a) of the Mississippi Rules of Civil Procedure.

¶21. Mississippi Rule of Civil Procedure 52(a) states:

In all actions tried upon the f acts without a jury the court may, and shall

upon the request of any party to the suit or when required by these rules,

find the fa cts specially and state separately its conclusions of law

thereon and judgment shall be entered accordingly.

In Tricon Metals & Services, Inc. v. Topp

, 516 So. 2d 236, 239 ( Miss. 1987), this Court held

that , “in cases of complexity, tried upon the facts without a jury, the Court generally should

find the facts specially and state its conclusions of law thereon.” T he City argues that because

this was a complex case, and because the trial court did not make specific f indings of facts and

conclusions of law, this case should be reversed.

¶22. Relying on Patout v. Patout

, 733 So.2d 770, 773 (Miss. 1999), in M ississippi

Department of Transportation v. Trosclair

, 851 So. 2d 4 08, 414 (Miss. Ct. App. 2003), the

Court of Appeals found that a case involving the Mississippi Tort Claims Act was “far from

complex” and found that without a specific request by the party, that it was not error for the

court to fail to make specific findings of fact and conclusions of law. After reviewing the

record and the City’s post-trial motion, this Court fails to find any request ma de for specific

findings of fact and conclusions of law.

¶23. Although abbreviated, sufficient findings of fact and conclu sions of law are contained

within in the court’s verdict and judgment. In the court’s verdict and judgment, the court made

specific findings that the Cit y of Jackson had a duty to inspect and maintain the drainage ditch,

that the City of Jackson had actual and constructive notice of the existing haza rdous condition,12

and that the City’s breach of duty caused or contributed to the flooding of the plaintiff’s

building. Furthermore, the record clearly supports the conclusion of the trial court and its

verdict and judgment.

CONCLUSION

¶24. For the foregoing reasons, the judgment of the Circuit Court of the First Judicial

District of Hinds County, Mississippi, is affirmed.

¶25. AFFIRMED

.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLE Y, CARLSON AND

DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.