IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-01583-SCT

EVELYN FAIRLEY

v.

GEORGE COUNTY, MISSISSIPPI, A POLITICAL SUBDIVISION

DATE OF JUDGMENT: 04/17/1998

TRIAL JUDGE: HON. KATHY KING JACKSON

COURT FROM WHICH APPEALED: GEORGE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: BEN F. GALLOWAY

ATTORNEYS FOR APPELLEE: WILLIAM M. RAINEY

R. QUENTIN WHITWELL, JR.

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 12/06/2001

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/27/2001

BEFORE PITTMAN, C.J., SMITH, P.J., AND WALLER, J.

PITTMAN, CHIEF JUSTICE, FOR THE COURT:

¶1. Evelyn Fairley (Fairley) filed a lawsuit in the Circuit Court of George County, Mississippi, against

George County and its insurance carrier, The Atlanta Casualty Company (Atlanta Casualty), alleging

negligence on the part of a county road crew leaving gravel in the road. The complaint alleges this gravel

caused Fairley to lose control of her car and overturn off River Road in George County. The trial court

awarded summary judgment for George County after finding Fairley did not comply with the notice

provisions of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2001)

, which, at the time, required strict compliance. After this Court decided Reaves ex rel. Rouse v.

Randall, 729 So. 2d 1237 (Miss. 1998), changing the strict compliance requirement to one of substantial

compliance, Fairley petitioned the trial court to reconsider its summary judgment order. The court denied

the motion as untimely. The trial court later dismissed Atlanta Casualty, after it reached an amicable

settlement with Fairley. Fairley filed a notice of appeal from the summary judgment order the following day.

Relying on the language of the trial court's order dismissing Atlanta Casualty, this Court dismissed the

appeal as interlocutory in an order dated October 3, 2000. This case is now before the Court for rehearing.

In her petition for rehearing, Fairley states the language in the order is misleading as the trial court was

indicating Fairley's desire to appeal the order granting summary judgment. There being no remaining

defendants nor claims to be pursued in the circuit court after the order dismissing Atlanta Casualty, the

summary judgment is final for purposes of appeal.

FACTS

¶2. Evelyn Fairley was injured when she lost control of her automobile and it overturned off River Road in

George County, Mississippi on May 30, 1996. One month later in June, her first attorney mailed a letter
addressed to the George County Board of Supervisors informing it she represented Fairley regarding the

accident and asking it to forward the letter to the county's insurance carrier. The subject heading of that

letter stated Fairley's name, the date of the accident, and the following: "Nature: Single motor vehicle

accident on River Road in George County, Mississippi - gravel in road." The following February, Fairley

filed a complaint against George County in the Circuit Court of George County alleging a county road crew

negligently left gravel in the road causing her accident. In March of 1997, Fairley hired her present counsel

and amended her complaint to include George County's insurance carrier The Atlanta Casualty Company.

Over a year later, the circuit court granted George County's motion for summary judgment for failure to

provide the county adequate notice under the MTCA. At the time, strict compliance with the notice

provisions of the MTCA was necessary to provide adequate notice. On December 31, 1998, this Court

decided Reaves which changed the notice standard to one of substantial compliance with the MTCA.

Fairley filed a motion to reconsider the summary judgment in light of the change in the law, but the circuit

court denied it as untimely. On September 16, 1999, the circuit court entered an order dismissing Atlanta

Casualty after it voluntarily settled with Fairley stating:

It is therefore, ORDERED AND ADJUDGED that the motion of the Plaintiffs be, and the same is

hereby sustained, and this cause is hereby dismissed with prejudice against the Defendant, THE

ATLANTA CASUALTY COMPANY, only, and that Plaintiff's case against GEORGE COUNTY,

remains pending.

Fairley's notice of appeal from the summary judgment order was filed the following day.

ANALYSIS

I. WHETHER THIS COURT CAN REVIEW THE SUMMARY JUDGMENT ORDER

AND WHAT STANDARD OF REVIEW SHOULD APPLY.

¶3. George County contends the only order which this Court can review is the order denying Fairley's

motion for reconsideration. George County claims that this order was a final judgment which limits this

Court's review to determine whether the trial court abused its discretion when it denied reconsideration.

Fairley asserts a de novo standard of review applies to summary judgment orders.

¶4. Where a summary judgment dismisses some of the parties to a lawsuit, but not all of the parties, Rule

54(b) of the Mississippi Rules of Civil Procedure governs. It provides in part:

[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or

more but fewer than all of the . . . parties only upon an expressed determination that there is no just

reason for delay and upon an expressed direction for the entry of the judgment. In the absence of

such determination and direction, any order or other form of decision, however designated which

adjudicates fewer than all of the . . . rights and liabilities of fewer than all the parties shall not terminate

the action as to any of the claims or parties and the order or other form of decision is subject to

revision at any time before the entry of judgment adjudicating all the . . . rights and liabilities of all the

parties.

Miss. R. Civ. P. 54(b). The comment to the rule explains that an appeal from an order not dismissing all the

parties to a lawsuit is interlocutory, absent certification as a final judgment by the trial judge. Miss. R. Civ.

P. 54 cmt. This Court will dismiss uncertified interlocutory appeals.(1) See Owens v. Nasco Intern'l, Inc.,
744 So. 2d 772 (Miss. 1999) ; Williams v. Delta Reg'l Med. Ctr., 740 So. 2d 284 (Miss. 1999).

¶5. The summary judgment order dismissing George County was not a final judgment and could not be

appealed until after the order dismissing Atlanta Casualty. The summary judgment order makes no mention

of Miss. R. Civ. P. 54(b) nor does it certify itself for appeal by using language found in Rule 54(b). The trial

court denied reconsideration of this order based upon timeliness and never re-examined the merits of the

notice in light of Reaves. This order, like the one for summary judgment, neither cites Rule 54(b) nor uses

the language of the rule to certify the summary judgment order as a final judgment for appeal purposes.

When both orders were entered, the case against Atlanta Casualty remained pending. Since the case was

still pending, the summary judgment order was an interlocutory order, not a final order, and incapable of

being appealed. The summary judgment order became an appealable order only after Atlanta Casualty was

dismissed as it then dismissed the only remaining defendant, George County, and put an effective end to the

proceedings below. Since Fairley gave timely notice of appeal after the summary judgment order became

final, George County's claim that this Court cannot review the summary judgment order is without merit.

¶6. The standard of review for summary judgments is well-settled. "This Court reviews errors of law, which

include the proper application of the Mississippi Tort Claims Act, de novo." Maldonado v. Kelly, 768 So.

2d 906, 908 (Miss. 2000). See also City of Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000) (citing

Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)); Jackson v. City of Booneville, 738 So. 2d 1241

(Miss. 1999). The issue before this Court is whether George County was entitled to judgment as a matter

of law against Fairley after Atlanta Casualty's dismissal. This also poses a legal question which this Court

reviews de novo. Williams v. Toliver, 759 So.2d 1195 (Miss. 2000); Seymour v. Brunswick Corp.,

655 So. 2d 892, 895 (Miss. 1995).

II. WHETHER THE ORDER GRANTING SUMMARY JUDGMENT SHOULD BE

REVERSED.

¶7. Fairley's sole issue presented for appeal is whether this Court should overturn the George County

Circuit Court's order granting summary judgment for George County. The procedural history of Seymour

v. Brunswick Corp. almost mirrors the procedural history in this case and an examination of those facts

suggests the proper outcome for the case at bar.

¶8. After being injured by an outboard motor propeller blade while attempting to get into a boat, the

plaintiff, Elizabeth Seymour, sued the manufacturer of the boat motor and the driver of the motor boat under

theories of products liability and negligence. Seymour, 655 So. 2d at 894. The trial court awarded

summary judgment for the manufacturer holding the propeller blade was an open and obvious danger. Id.

At the time the order was entered, an open and obvious danger defense completely barred recovery. While

the case was still pending against the boat driver, this Court decided Sperry-New Holland v. Prestage,

617 So. 2d 248 (Miss. 1993), which implemented a risk-utility analysis for products liability cases and

stated that the openness and obviousness of the danger was but one factor to consider when determining

damages and was no longer a complete bar to recovery. Seymour, 655 So.2d at 895. The trial court

proceedings were then concluded with regard to the boat driver, and Seymour appealed the summary

judgment. Id. at 894. This Court found granting summary judgment was improper and reversed the order.

Significantly, in its conclusion the Court stated the following:

The trial judge's decision was proper when made, for which he is not to be faulted, but, in light of the

Court's subsequent and recent decisions in Sperry-New Holland, Bunge, and Tate, the granting of
summary judgment must be reversed . . . .

Seymour, 655 So.2d at 896. This Court has also reversed cases pending on appeal from summary

judgment when Reaves was decided where the trial court had applied the strict compliance standard. See

Trosclair v. Miss. Dep't Of Transp., 757 So. 2d 178 (Miss. 2000); Lattimore v. City of Laurel, 735

So. 2d 400 (Miss. 1999).

¶9. Fairley concedes the trial court was correct when it granted summary judgment for George County

applying the strict compliance standard. However, she correctly notes this court has subsequently abolished

the strict compliance standard the judge used to grant summary judgment. See Carr v. Town of Shubuta,

733 So. 2d 261, 263 (Miss. 1999); Reaves ex rel. Rouse v. Randall, 729 So. 2d 1237 (Miss. 1998).

Since the notice requirement changed between the time the summary judgment order was entered and the

proceedings before the trial court came to an end, one question remains unanswered: whether George

County is entitled to summary judgment applying the substantial compliance standard. As the record before

us is not fully developed in this regard, we reverse the order granting George County summary judgment

and remand for a determination by the trial court whether Fairley substantially complied with the notice

requirements of the MTCA.

CONCLUSION

¶10. The trial court's order granting summary judgment for George County was not a final judgment capable

of being appealed until Atlanta Casualty was dismissed. During the interim between George County's

dismissal and Atlanta Casualty's dismissal, the law regarding adequate notice under the Mississippi Tort

Claims Act changed significantly. At the end of the proceedings below, George County was no longer

entitled to summary judgment as a result of the change in law. Therefore, the order granting summary

judgment for George County is reversed, and this case is remanded to the George County Circuit Court for

further proceedings consistent with this opinion.

¶11. REVERSED AND REMANDED.

McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ.,

CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

1. This Court, relying on the language of the order dismissing Atlanta Casualty, has dismissed Fairley once

for this very reason.