IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00923-COA WILLIAM T. KELLEY, INDIVIDUALLY AND D/B/A WILLIAM T. KELLEY, LLC APPELLANT

v. CORINTH PUBLIC UTILITIES COMMISSION, CITY OF CORINTH, MISSISSIPPI AND CITY OF CORINTH GAS AND WATER DEPARTMENT APPELLEES

DATE OF JUDGMENT: 04/19/2013 TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR. COURT FROM W HICH APPEALED: ALCORN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DAVID L. CALDER CORY RICHARD GANGLE ATTORNEYS FOR APPELLEES: ROBERT GLENN KROHN W I LLIAM HULL DAVIS JR. NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 01/19/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. Wi l l i a m Kelley a ccepted a bid f r om the Corin t h G a s a n d Wa t e r D e p a r t me n t (Departm e nt) to i nstall water l ines at the site of a proposed subdivision he was developing. The Departm ent i nstalled the lines but a llegedly caused signif icant dam age to the property

. Kelley alleges that the Departm ent f ailed to repair the dam age and restore his property to its original condition despite having repeatedly a ssured him that it would do so at the conclusionof the p roject. Kelley alleges that he was f orced to pay a nother contractor $310,000 to repair the dam a ge done by t he Departm ent and that ult i ma t e l y he l ost the property in f oreclosure as a result of

the Departm ent’s actions. ¶2. Kelley s erved a n otice of claim under t he M ississippi Tort Claim s Act (MTCA) on the Dep a r t m e n t , the City of Corinth (City ), and the C orinth Public Utilities Com m ission (Com m ission). He then f iled a com

plaint in the Alcorn C ount y C i rcuit Court in which he

nam ed the sam e parties a s def endants and asserted claim s f o r negligence a nd various other

torts. The court later granted Kelley leave to am end his com p laint to add claim s f

or breach of cont r a c t and inverse condem nation under t he Mississippi Constitution. The def endants

m oved f or sum m ary

judgm ent, raising various def enses under the MTCA, and also m oved

to stay discovery pending a ruling o n their sum m ary j udgm ent m otion. The circuit court stay ed discovery and l ater granted sum m ary judgm ent i n f avor of all d ef

endants on all claim s. In its o rder g r a n t i ng sum m ary judgm ent, the circuit court concluded, inter alia, that the
MTCA’s statute of l im i tations expired bef ore Kelley f

iled his notice of c l a i m a nd that Kelley ’s contract and inverse condem nation claim s f ailed as a m atter of

law. ¶3. On appeal, Kelley argues that the circuit court (1) erred by r uling that the Departm ent is a p olitical subdivision entitled to the protections and i m m unities of the MTCA; (2) erred by ruling that his tort c laim s against all def en d ants are barred by the M TCA’s statute of
lim itations; (3 & 4) erred by ruling that his contract and inverse condem nation claim s f ail as

a m atte r o f law; a nd (5) abused its d iscretion by stay ing discovery

. W e af f irm with one exception: we conclude that there is a genuine issue of m aterial f a c t as t o whether the

2MTCA’s statute of l im i tations expired b ef ore Kelley f

iled his n otice o f claim

. Accordingly ,

we a f f i rm in part and r everse and rem and in part f o r f urther proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY ¶4. The C i t y o f C o r i n t h i s a municipal corporation. In 1954, p ursuant t o state law, Mississippi Code Annotated s ection 21-27-13 (Rev. 2015), the City esta b l i s hed the
Com m i ssion to c ontrol, m anage, a nd operate the city -owned natural gas a nd water sy stem s. The Com m ission t hen established the Departm ent t o m anage the day -to-day operations of the
sy stem s, subject to t he oversight and control of the C om m ission. As will be discussed below, the Departm ent is essentially the operating arm

of t he Com m i ssion. ¶5. In 2006, K elley was in the process of d e v e l o p i n g a n e w s ubdivision in Corinth, Magnolia Lake Estates, an d h e s olicited bids f or the installation of water lines at the site. The Departm ent subm itted the low bid, which K elley accepted. 1 In July 2007, Kelley signed

a docum en t p r epared b y t he Departm ent showing a total estim ated construction cost of $133,684.48. The docum ent specif ied tha t K e l ley w ould be required to pay 6 0% of that

am ount prior to construction and an additional 20% once construction was 75% com plete.
Once installation of the lines was c om p leted, Kelley would be required to pay the rem aining balance of the actual cost of construction. Prior to the Departm ent beginning work, Kelley

was required t o have built all proposed c ity r ights of way and utility e asem ents to “f inished

1 T h e C o m m issio n also au th o r i z e d t h e D ep artm en t t o in stall g as lin es at th e site; h o w e v e r, acco rd in g to th e D ep artm en t’s co n stru c tio n su p erin ten d en t, C h ris L atch , th e g as lin es w e re n o t p art o f th e D ep artm en t’s b id b u t w ere in stalled at th e D e p a r tm en t’s o w n ex p en se as an im

p ro v em en t to its g as d istrib u tio n n e tw o rk

. 3grade” and “a good gravel base” f or proposed city

streets. ¶6. Installation of the water and gas lines began in Septem ber 2007. In J anuary 2008, the Departm ent f

inished work and subm itted a f inal i nvoice to Kelley requesting pay m ent of $70,032.81. ¶7. I n r e s p o n s e to the Departm ent’s request f or f inal pay m ent, W illia m L a mb e r t , a n architect, inspected the site on behalf of Kelley ’s l ender, R e g i o n s B a n k

. In a n em ail,
Lam bert reported to Regions that the Departm ent had installed all necessary water and gas lines “per the contract d ocum e nts.” However, L am bert w a s “th o r o u g h l y appalled” by extensive dam age that the Departm ent had done to th e p r operty —a “m inim

um of $250,000.00 . . . of

dam a ge” in his opinion—which he had discussed with both Kelley and Kelley ’s engineer. Lam

bert’s em ail suggests that the Departm ent had indicated that it was unable o r unwilling to repair the dam age. Lam bert recom m e nded t hat Regions not m ake
f inal pay m ent, stating that he “would hope that this m atter would be resolved by m inim um construction standards by [ the Departm ent] prior to p ay m ent.” Regions deem ed the project incom plete a nd d enied f

inal pay m e nt to the Departm e nt. Kelley does not deny discussing the dam age to the site with Lam bert, but he does deny that he saw L am b ert’s em a il f

or several weeks af ter it was sent. ¶8. According to Kelley , while the utility lines were being installed, he “was concerned about the am ount of dam age [ the Departm ent] was c ausing, but [ he was] repeatedly assured that [ the D epartm ent] would restore the land to its original condition af ter [ its] work was

c om pleted.” Thus, in February 2008, he “m e t with representatives of [ t he D epartm ent] t o

4discuss the additional work t hat rem ained to b e done at the s ite.” He spoke with the

Departm ent’s c onstruction superintendent, Chris L atch, on February 19 and either February
25 or 26, and Latch said “ that he would have to check with [ Departm ent] of f i cials in regard to [ K elley ’s] request that [ the Departm ent] repair the dam age . . . a nd restore the work site

to the condition it w as in bef ore [ the Departm ent] began its w ork

. ” T h ereaf ter, Kelley continued to m eet with representatives of the Departm e nt. In his af f i davit, Kelley states that
in a March 2008 m eeting, the Departm e nt’s m a nager stated “that h e was new i n his position,”

so “he would have to review [ the] situation, a nd get back to [ K elley ] on when [ the Departm ent] would” repair the dam age and restore the property

. Kelley s tates t hat “the f irst tim e any representative of [ the Departm ent] advised [ him ] that t hey w ere not going to do any additional work on the project” was at a m eeting “in late March or early April of 2008.” 2 ¶9. Kelley claim s that the Departm ent then told him t hat h e s hould pay the f inal invoice and s ue them f

or dam ages f

or any def ective work. W h en Kelley did not p ay , the D epartm ent f iled a construction l ien against the property

. The D epartm ent also a d vised K ell e y t h a t he could present his c laim to the Com m ission, which he did a t the Com m ission’s July 14, 2008

m eeting. On July 21, 2008, the Com m ission i nf orm ed Kelley that it saw “ no reason to change its position in the m at t e r . ” The C o m m ission s tated that it would “ask [ its] outside engineering f

irm to i nvestigate the situation to s e e i f a ny inf orm ation ha[ d] been o verlooked.”
But the Com m ission also a dvised Kelley that he needed to pay the f inal invoice “ b ef

ore the utilities [ could] be reinstated in the developm ent.”

2 D u rin g M arch an d A p ril, th e D ep artm en t p erf o rm ed so m e ad d itio n al w o rk o n th e p ro p erty , b u t o n ly

to f ix a w ater leak , n o t

to rep air d am ag e to th e p ro p erty

. 5¶10. K e lley alleges that he w as f orced to pay another contractor $310,000 t o r e p a i r t h e dam age and restore the property

. Kelley claims t h a t he exhausted his f inancing and could

not com plete the subdivision as a result of this unf oreseen cost. He also alleges t hat the City ref used t o issue a f

inal approval of the subdivision because of the Departm ent’s construction lien against the property

. Kelley eventually

lost the property

in f o reclosure. ¶11. On February 15, 2009, Kelley s erved the City , the Com m ission, a nd the Departm ent with a notice of claim pursuant t o the MTCA. See Miss. Code Ann. § 11-46-11(2)(a) (Supp. 2015). On June 9, 2009, h e f iled a c o mp l a i n t a g a inst the s a m e three parties in the Alcorn County Circuit Court, which h e a me n d e d in Septem ber 2009, April 2 010, and Septem ber
2011. Kelley ’s f

irst two c om

plaints asserted o nly n egligence and other tort claim s, the third added a claim f

or breach of contract, and t he f o urth added an inverse condem nat i o n c l aim under the Mississippi Constitution. ¶12. Prior t o a n y d i s c o v e r y in the case, the def e ndants m o ved f

or sum m ary

judgm ent, asserting various def

enses under the M TCA, and m oved to stay discovery pending a ruling

on their m otion f

or sum m ary j udgm ent. T he circuit court stay ed discovery , and on April 24, 2013, the court entered a n order granti n g s u mma r y judgm ent in f avor of all def

endants on all claim s . The court concluded that the MTCA did not waive the de f e n d ants’ s overeign
im m unity with r espect to K elley ’s claim s f or f raudulent inducem ent, tortious interf erence with business relations, o r tortious interf erence with contract or his dem a n ds f or puni t ive dam ages, attorney s’ f

ees, and p rejudgm ent interest. I n a ddition, the c ourt concluded that the MTCA’s one-y ear statute of lim itations had run on Kelley ’s rem a i ning tort claim s .

6¶13. Kelley subsequently f iled a m otion to clarif

y or correct the order granting sum m ary judgm ent, arguing that the court’s order f ailed t o address his breach of contract and inverse condem nation claim s. The circ u i t court entered a supplem ental order granting sum m ary judgm ent and specif

ically r ejecting those claim s on Novem b er 7 , 2 013. T he court reasoned that Kelley ’s “breach of contract claim was sim ply a re-labeled tort claim ”; that Kelley f ailed to identif y any provision of

a written contract that had been breached; and that any alleged oral contract with the def endants was unenf

orceable. The circuit court also ruled that Kelley ’s inverse condem nation claim f ailed as a m atter of law because the property was not dam aged f

or any “public use.”
STANDARD OF REVIEW ¶14. “W e review the grant or denial o f a m otion f or sum m ary j udgm e n t de novo, viewing the evidence ‘ in the light mo s t f a v o r a b le to the party against whom the m otion has been

m ade.’” Karpinsky v. Am. Nat’l Ins. , 109 So. 3d 84, 88 (¶9) (Miss. 2013) (quoting Pratt v. Gulfport–Biloxi Reg’l Airport Auth. , 97 S o. 3d 68, 71 (¶5) (Miss. 2012) )

. “ A grant of

sum m ary judgm ent w ill b e u p h e l d o n ly when, v iewing the evidence i n the light m ost f avorable to the nonm oving party , there are no genuine issues of m aterial f act.” Forbes v. Gen. Motors Corp. , 993 So. 2d 822, 824 (¶7) ( Miss. 2008). “Only when the m oving party is e ntitled to judgm ent as a m atter of law i s sum m ary judgm ent appropriate.” Id. However, the non-m oving “party m ay not rest upon the m ere allegations or denials of his pleadings, but his response, by af

f idavits or [ depositions, answers t o i nterrogatories, or adm issions], m ust
set f o rth specif

ic f acts showing t hat there is a genuine issue f or trial.” M.R.C.P. 5 6(e). “This

7Court [ also] uses a de n ovo standard of r ev i e w w h e n presented w ith questions of law,

including issues concerning statutes of lim i tations,” F orbes , 993 S o. 2d at 824 (¶7), and “the application of the MTCA.” City of Jackson v. Harris , 44 So. 3d 927, 931 (¶19) ( Miss. 2010).
ANALYSIS ¶15. W e f

irst address the two issues that this appeal raises under the MTCA: whether the Departm ent is a “political subdivision” entitled to the MTCA’s i m m unities and protections and whether there is any genuine issue of m aterial f act precluding sum m ary judgm ent based on the MTCA’s statute of lim i tations. W e then address the rem aining issues in the appeal: whether K elley ’s contract c laim or inverse condem n ation claim survives sum m ary j udgm ent and whether the circuit judge abused his discretion by stay ing discovery

. I. The Corinth Gas and Water D epartm ent is a political subdivision. ¶16. “The City of C orinth is a m unicipal c o r p o r a t i o n and is t he county seat of Alcorn County , Mississippi. The C orinth Gas and W a ter D epartme n t i s an arm of t he City of Corinth and is o p erated by the Corinth Public Utilities C om m ission.” Putt v
. City of Corinth , 579 So. 2d 534, 535 (Miss. 1991). Nothing has changed in the last twenty -f ive y ears. ¶17. The City created the Com m ission in 1 954 to “control, m anage, and operate” the gas and water utility sy stem s owned by the City

. Consistent with t h e laws authorizing its creation, 3 the Com m ission’s by laws provide t h a t i t “ shall control, m a nage and operate the
W a ter and Gas D epartm ents o f the City of Corinth.” See a lso Miss. Code Ann. § 21-27-17 (Rev. 2015) (“[ The C o mmi s s i o n ] shall have the entire control and m anagem e nt of such

3 T h e C o m m issio n w as created p u r su an t t o ch ap ter 4 9 4 o f t h e G e n eral L aw s o f 1 9 5 0 , n o w co d if

ied as am en d e d in title 2 7 , ch ap ter 2 1 o f t h e M ississip p i C o d e A n n o tated

. 8[ utility ] sy stem or sy stem s . . . . ” ). The Com m ission appoints the head of the Departm ent,

who s erves at the C om m ission’ s w i l l a nd pleasure and i s charged with im plem enting and executing the Com m ission’s policies and decisions. See i d

. I n short, the Departm ent is sim ply an operating arm

of the Com m ission. ¶18. All three def

endants easily

satisf y the MTCA’s def

inition of “political subdivision” and are t heref

ore entitled to the MTCA’s protections a nd im m unities. At the tim e Kelley ’s claim a ccrued and the c om plaint i n this case was f

iled, the term “political subdivision” was def ined to include: [ A ]ny body politic or body corporate other than t he state responsible f or governm e ntal activities only in geographic areas sm aller than t hat of the state, including, but not lim ited to, any . . . m unicipality

. . . or other instrum entality thereof , whether or not such body o r instrum entality thereof h as the a uthority to levy taxes or to sue or be sued in its own nam e . Miss. Code Ann. § 11-46-1(i) (Rev. 2012). Even assum ing that t he C o m m ission and Departm ent are s uf

f iciently distinct that they should be analy zed separately , the D epartm ent is also “responsible f

or governm ental activities.” Indeed, its f unctions a re declared by statute

as “ necessary . . . t o secure the public h ealth, s af ety , convenience and welf are.” Miss. Code
Ann. § 21-27-67 (Rev. 2015); see Spencer v
. G reenwood/Leflore Airport A uth. , 834 So. 2d 707, 710 (¶10) (Miss. 2003) (citing a sim ilar statute as e vidence that an entity w as a political subdivision responsible f

or governm ental activities). At the very least, the Departm ent is a political subdivision because it i s as an “instrum e ntality ” owned, m a naged, and operated by the Com m ission. See Bolivar Leflore M ed. Alliance LLP v. W

illiams , 938 So. 2d 1222, 1232

9(¶28) (Miss. 2006) ( BLMA ). 4

¶19. From the f

oregoing, it should be clear that the Departm ent is a political subdivision, but Kelley argues that it is not or that it “stepped out of t hat role” in this case. Specif ically , Kelley argues that the Departm ent “engaged in a proprietary activity ,” “acted as a private entity , and theref

ore s tood a lone as a private contractor in this case.” 5 However, the MTCA expressly applies t o political subdivisions when engaged in both “governm ental” and

“ p r o p r ietary ” activities. Miss. Code Ann. § 11-46-3(1) (Supp. 2015) ( em phasis added);
Davis v. Forrest Royale A partments , 938 So. 2d 293, 295 (¶6) (Miss. Ct. App. 2006). 6 The

4 In B L M A , a co m m

u n ity h o sp i tal, w h i ch is a p o l itical su b d iv isi o n , estab lish ed a f am ily m ed i cal c lin ic w ith tw o p h y sician s. T h e h o s p ital o w n ed n in ety -eig h t p ercen t o f th e p artn ersh ip an d ap p o in ted t w o -th ird s o f its e x ecu tiv e co m m ittee. B L M A , 9 3 8 S o . 2 d at 1 2 2 3 (¶2 ). T h e S u p rem e C o u rt co n clu d ed th a t “[ s] u c h co n tro l clearly q u alif ie[ d th e clin ic] as an in term ed iary o r ag en t th ro u g h w h ich certain f u n ctio n s [ o f th e h o sp ital w e r e] acco m p lish ed .” Id

. at 1 2 3 2 (¶2 8 )

. A c co rd i n g ly , th e C o u rt “co n clu siv ely ” f o u n d t h a t th e clin ic w as an “in stru m e n tality ” o f th e h o sp ital “en titled to th e p ro tectio n s, lim itatio n s, a n d im m u n ities o f th e M T C A .” Id

.

5 A p p ellan t ’ s B r. at 4 1 -4 2 (citin g B r a d ley v. Ja ckso n , 1 5 3 M iss. 1 3 6 , 1 1 9 S o . 8 1 1 (1 9 2 8 ); Jo n es v. C i ty o

f A m o ry , 1 8 4 M iss. 1 6 1 , 1 8 5 S o . 2 3 7 ( 1 9 3 9 ); M o rg a n v. C ity o

f R u leville , 6 2 7 S o . 2 d 2 7 5 (M i ss. 1 9 9 3 )).

6 S e e a lso F o rten b erry v. C ity o

f Ja ckso n , 7 1 S o . 3 d 1 1 9 6 , 1 2 0 3 (¶2 3 ) (M iss. 2 0 1 1 ) (“T h e h isto ry o f so v ereig n i m m u n ity in M ississip p i s ho w s th at m u n icip alities w e re n o t g iv en im m u n ity w ith reg ard to p ro p r ietary f u n ctio n s u n t il recen tly .” (em p h a sis ad d ed )), o verru led o n o th er g ro u n d

s b y C ity o f M a g ee v. Jo n es , 1 6 1 S o . 3 d 1 0 4 7 , 1 0 5 0 ( ¶9 ) (M iss. 2 0 1 5 ); G a le v. T h o m a s , 7 5 9 S o . 2 d 1 1 5 0 , 1 1 5 2 -5 3 (¶¶8 -1 2 ) (M iss. 1 9 9 9 ) (ex p l ain i n g th at an “in terim ” v ersio n o f sectio n 1 1 -4 6 -3 , w h ich w as in e f f ect f o r o n ly six m o n th s in 1 9 9 3 , ex cep ted claim s arisin g o u t o f th e “p ro p rietary ” a ctiv ities o f m u n i cip a l ities, b u t th e p erm an en t v ersio n o f th e statu te co n tain s n o su c h e x c e p tio n ); C ity o f T u p elo v. M a rtin , 7 4 7 S o . 2 d 8 2 2 , 8 2 8 (¶1 9 ) (M iss. 1 9 9 9 ) ( “P r io r to t h e e n a c tm e n t o f th e M T C A , w e d id u se th e g o v ern m en t al/p r o p r i e tary f u n ctio n test in ap p ly in g so v ereig n im m u n ity to m

u n i cip alities. H o w ev er, w ith th e en actm en t o f th e M T C A , th at t est is n o lo n g er ap p licab le to claim s su b j ect t o th e M T C A ex cep t to th e ex ten t w h ich it m ay b e in co rp o rated in th e p ro v isio n s o f th e M T C A .” (citatio n s o m itted )). 1 0cases that Kelley c ites all predate t he MTCA; they are n o l onger good law f or the proposition
f or which he cites them

. Under the MTCA, once it is e stablished that t he Depart me n t i s “responsible f

or g o vernm ental a c t i vities,” Miss. Code A nn. § 11-46-1(i) (Supp. 2015), allegations that it “ engaged in a proprietary a ctivity ” o r “acted as a p r i v a t e e ntity ” in a particular case are irrelevant. The MTCA’s protecti o n s e x tend to t hose activities as well. The Departm e nt rem ains a politica l s u b d i v i s i on f or purposes of t he MTCA regardless of whether it is providing utility services, installing utility lines, or even selling slugburgers.
II. Genuine issues o f m aterial f act preclude sum m ary judgm ent based on the MTCA’s statute of lim i tations. ¶20. W h ile the MTCA clearly c overs all three def endants, the question whether Kelley ’s

tort claim s 7 are barred by the MTCA’s one-y e a r s t a tute o f lim i tations is m uch c loser. The circuit court concluded that the c laim accrued on or bef ore February 5 , 2008, because by that point, installation o f t he utility l ines was com plete, the Dep a r t m e n t had requested f inal
pay m ent, and the dam age was apparent and known to Kelley . And because Kelley did not

7 T h e c i r cu it co u rt co rrectly h eld th at t h e M T C A d o es n o t w a i v e th e d ef en d an ts’ so v ereig n im m

u n i ty w ith resp ect to K elley ’s claim s f o r f rau d u len t i n d u cem e n t an d to rtio u s in terf eren ce w ith b u s i n e s s relatio n s o r h is d e m an d s f o r p u n itiv e d am ag es, atto rn e y s’ f ees, an d p r ej u d g m en t in t erest. S e e M iss. C o d e A n n . § 1 1 -4 6 -5 (2 ) (S u p p . 2 0 1 5 ) (“a g o v ern m en tal en tit y s h a l l n o t b e liab le o r b e co n sid ered to h av e w aiv ed im m u n ity f o r an y co n d u ct o f its em p lo y ee if t h e e mp lo y ee’s co n d u ct co n stitu ted f rau d [ o r] m alice”); id

. § 1 1 -4 6 -1 5 (2 ) (b arrin g an a w ard o f p u n itiv e d am ag es, atto rn ey s’ f e es, o r p rej u d g m en t in terest o n a n y claim su b j ect to th e M T C A ); Z

u m w a lt v. Jo n es C ty. B d

. o f S u p erviso rs , 1 9 S o . 3 d 6 7 2 , 6 8 8 (¶¶8 3

- 8 4 ) (M iss. 2 0 0 9 ) (h o ld i n g th at so v ereig n im m u n i ty ap p lies t o c l aim s alleg in g to rtio u s in terf eren ce w ith b u sin ess relatio n s b ecau se th e to rt req u ires p ro o f o f m alice). K elley h as n o t sp ecif ically ad d ressed th is issu e o n ap p eal. A cco rd in g ly , w e af f i rm th e circu it co u rt’s g ran t o f su m m ary j u d g m en t w ith resp ect to th e s e c l aim s. In th i s p art o f th e o p in io n , w h en w e ref er to K e lley ’s “to rt claim s” w e m ean h i s rem ain in g claim s, in clu d in g h i s n eg lig en ce claim , th at are n o t b arred b y so v ereig n im m

u n ity

. 1 1serve his notice of claim until February 15, 2009, the c ircuit court concluded that his claim

was barred by t he s tatute o f lim itations. See Miss. Code A nn. § 11-46-11(3)(a) (Supp. 2015).
For t he reasons t h a t f

ollow, we conclude that the af f idavits subm itted by Kelley set f orth suf f i cient f acts to create a genuine issue of m aterial f act precluding sum m ary

judgm ent. ¶21. As discussed above, on F ebruary 5, 2008, W illiam Lam bert s ent a n em ail to Regions
in which he conf

irm ed that the lines were installed, b ut he also reported t hat the D epartm ent had caused extensive dam age to the property

. Lam bert’s em a il also seem ed t o indicate that the Departm ent was unable or u nwilling to r epair the dam age. L a m bert stated that he was “appall e d ” b y t h e state of the property , which he had discussed with Kelley and Kelley ’s engineer. Lam

bert closed the e m ail by s t a t i ng that he “would h ope” that t he D epartm ent would restore the property “prior to pay m ent.” Based on Lam

b ert’s report, Regions denied the Departm ent’s request f or f i n a l pay m ent. In an af

f idavit subm itted in 2010, Lam bert stated that he recom m ended that Regions not m ake f inal pay m ent because the Departm ent’s work “was not com

ple t e d

. ” L a mbert also stated that the Departm ent never “ i ndicated [ to him ] that [ it] did n ot i ntend to f i nish the work.” The def

endants argue that Lam

b ert’s em ail dem onstrates that by February 5, 2008, t he a lleged tortious conduct had occurred, and Kelley

was a w a r e of i t. Thus, they argue that Lam bert’s em ail e s tablishes t hat the statute of
lim itations began to run on or bef ore February

5, 2008. ¶22. In his own af

f idavit, Kelley

em phasizes that Lam

bert worked f

or Regions, not him

. Kelley also avers t hat he “was not personally aware of [ Lam bert’s] em a il” to Regions until March 2008, but Kelley does not dispute that he and Lam bert discussed th e dam age to the

1 2property prior to February 5. In addition, Kelley ’s engineer appears to have b een copied on

the em ail. Kelley states that during the tim e that the Departm ent was installing the utility lines, h e was “concerned about the am ount of dam age that [ the D epartm ent] was causing,” but he claim s that t he Departm ent “repeatedly assured [ him ] that t hey would restore the land to its original c ondition af ter their work was com

pleted.” Kelley

states that in February

he
“met with representatives of [ the Departm ent] to discuss additional work that rem ained to be done at the site.” He states that he spoke t o Latch on F ebruary 19 and 2 5 or 26, 2 008, and Latch “indicated that he w ould have t o c heck with [ Departm ent] of f icials in regard to [ Kelley ’s] request that [ the Departm ent] repair the dam age that it had caused, and r estore the work site to [ its p rior] condition.” Ac c o rding to K elley , in a March 2008 m e eting, the Departm ent’s m a nager stated “that he was new in his position,” s o “ h e w ould h ave to review [ the] situation, and g et back to [ Kelley ] on when [ the Departm ent] w ould” r epair the dam age and restore the property

. Kelley states that “the f irst tim e a n y representative of [ the Departm ent] advised [ him ] that they were not g oing to do any additional w ork o n the project”

was at a m eeting “in late March or early April of 2008.” ¶23. Actions under the MTCA m ust be c o m m enced within one y e a r o f “ t h e d ate of the tortious, w rongf

ul or otherwise a ctionable c onduct on which t he liability phase of the action is based.” Miss. Code Ann. § 1 1

- 4 6

- 1 1 ( 3)(a). Thus, “ the MTCA’s one-y ear s tatute of
lim itations b egins to run when the cl a i ma n t knows, or by exercise o f reasonable diligence should k now, of both t he dam age or i n j u r y , a n d the act or omission which proximately caused it .” Caves v. Y

a rbrough , 991 So. 2d 142, 1 55 (¶54) (Miss. 2 008) ( em phasis added).

1 3In t his c ase, the g ravam en of Kelley ’s claim i s not that his p roperty was dam aged during the

project. He adm its that he o bserved such dam age during the course of t he p roject, but he also alleges that the D epartm e nt repeatedly a ssured him that the property would be restored to its prior condition once they f inished installing the utility l ines. Kelley subm itted an af

f idavit
f ro m R i c ky Newcom

b, the licensed prof

e ssional engineer on his project, stating that standards and practices i n the co n s truction industry require a contractor such as the Departm ent to “restore the land to its original condition af ter such work is c o m

pleted.” W e understand t his to be the gravam en of Kelley ’s negligence claim : the D e p artm ent’s f ailure

to restore the property to its prior condition af ter the Departm e nt com

pleted installation of the u tility lines. See Glover ex rel. Glover v. J a ckson State Univ. , 968 So. 2d 1267, 1276-77 (¶29) ( Miss. 2007) (“The legal def inition of negligence is f

airly sim ple, universally applied, and

. . . needs no citati on of authority

. Negligence is d oing what a reasonable, prudent
person w ould not do, o r f a i l i n g to do what a reasonable, prudent person would do, under substantially

sim ilar circum stances.”). ¶24. Presiding Judge Grif f is’s partial dissent say s t hat the f oregoing “logic is f

l awed . . . because industry standards do not creat e a duty and t he f ailure to conf

o rm with industry standards does not create an independent basis f or a n egligence action.” ( Citing W arren v. P a l l e ts Inc. , 747 So. 2 d 875, 876-77 (¶18) (Miss. 1999)). W e disagree with the partial dissent f or two reasons. First, in m aking this argum ent, t he partial dissent has gone bey ond the statute of lim i tations issue properly bef ore u s to pass judgm ent on the m erits of Kelley ’s negligence claim

. The def endants did not m ove f

o r sum m a r

y judgm e nt on the g round that

1 4Kelley ’s negligence claim f ailed on the m erits. Nor d id the circuit court rule o n that ground. It is doubtf

ul that it could have done so without allowing any discovery

. ¶25. S e c o n d , W

a r r e n h o lds only industry standards are not a n independent basis f o r a negligence claim if the def endants “owed no duty to [ the plaintif f ]” to begin with. W

arren , 747 So. 2d at 878 (¶18). Here, however, the Departm ent had a duty to perf orm its work in

a non-negligent f

ashion. That b eing the case, industry custom s c a n s u rely inform the duty of care in a negligence action. See, e.g. , Dedeaux v. J.I. Case Co. , 611 So. 2d 880, 886-87 (Miss. 1992); Toliver v. Gen. Motors Corp. , 482 So

. 2 d 2 1 3 , 2 18 (Miss. 1985); R awson v. Midsouth Rail Corp. , 738 So. 2 d 280, 292 (¶42) (Miss. Ct. App. 1999). T heref ore, the partial dissent’s rejection of the merits of Kel l e y ’ s n egligence claim is not only procedurally
im p roper but, at least at this early stage of the litigation, substantively m istaken. ¶26. Thus, according to Kelley ’s af f idavit, it was not until a m eeting in late March or early April 2008 that the Departm e nt ref used to restore the property to its prior c o ndition. If that is true, then his notice of claim was tim ely served and his com plaint tim ely f

iled. S ee Miss. Code Ann. § 11-46-11(3)(a). 8 Lam bert’s em ail t o Regions m ay support an inf erence that the Departm ent had m a de its position known by early February 2008, but on the record bef ore
us, that only serves to create a genuine issue of m aterial f act regarding the date on which the

8 T h e M T C A h as a o n e-y e ar statu te o f lim itatio n s, b u t, at th e t im e K elley ’s claim accru ed an d h i s co m

p lain t w a s f

iled , th e “ f

i lin g o f a n o t ice o f claim

. . . serv e[ d ] to to ll th e statu te o f lim itatio n s . . . f o r o n e h u n d red tw en ty (1 2 0 ) d ay s f ro m th e d ate” o n w h ich it w as r e c e i v ed b y th e p o l itical su b d iv isio n . M iss. C o d e A n n . § 1 1

- 4 6 -1 1 (3 )(a) (R e v . 2 0 0 2 )

. I n th is case, t h e d ef

en d an ts h a v e arg u ed o n ly th at K elley ’s n o tice o f claim w as f iled m o re th an o n e y ear af

ter h i s claim accru e d so th at th e 1 2 0 -d a y t o l lin g p ro v isio n is u n a v ailab le to h i m . T h ere is n o sep a rate arg u m en t w ith resp e ct to t h e tim elin ess o f t h e co m p lain t, w h ich w as f iled less th an 1 2 0 d ay s af ter th e n o tice o f

claim

. 1 5claim accrued. Accordingly , t he def endants are n ot entitl e d to sum m ary judgm ent on Kelley ’s tort claim s based on the MTCA’s statute of lim i tations.
III. Kelley ’s contract claim fails as a m atter of law . ¶27. T u r n i n g t o K e l l e y ’ s n o n - t ort claim s, t he circuit court correctly held that Ke l l e y ’ s
contract claim f

ails as a m a tter of law. K elley does not allege that the D epartm ent breached an express term

of any written contract. Nothing in the docum ent setting out the tim ing of Kelley ’s pay

m ents o r any related docum ent c ontains any ref erence to restoring t he property
to its original condition. Theref ore, even if those docum ents constitute a contract of som e sort, they are not a basis f

or Kelley ’s breach of

contract claim

. ¶28. Rather than alleging a breach of an e x p r e s s p r o v ision of a written c ontract, Kelley alleges that the D epartm e nt violated an “ oral” agreem ent with him or an im plied contractual duty to perf

o rm the work in a non-negligent f ashion. His c l aim t hat the Departm ent violated

an oral contract f

ails, as it is well-settled that alleged o ral agreem ents with public bodies are unenf orceable b ecause a public body m ay enter a contract only th r o u g h p u b lic action recorded i n its m inutes. 9 Kelley argues that his contract need not be written or appear in the

m inutes of any pu b l i c b ody because the Departm ent d oes not keep m inutes; h owever, as discussed above, the D epartm e nt is m erely an o perating arm of the Com m ission. By statute, the Com m i s s i o n “ s hall have the entire control and m a nagem ent of [ the gas and water]
sy stem s” and the Departm ent. Miss. Code Ann. § 21-27-17 ( Rev. 2015). It f o llows that any

9 S ee, e.g
. , R a w l

s S p rin g s U til. D ist. v. N

o va k , 7 6 5 S o . 2 d 1 2 8 8 , 1 2 9 0 -9 2 (¶¶4 , 9 -1 1 ) (M iss. 2 0 0 0 ); T

h o m p so n v. J o n es C t y. C m ty. H o sp
. , 3 5 2 S o . 2 d 7 9 5 , 7 9 5

- 9 8 (M iss. 1 9 7 7 ); P i ke C t y
. , M i s s
. ex rel. B d

. o f S u p erviso rs v. In d

eck M a g n o lia L L C , 8 6 6 F

. S u p p . 2 d 5 8 9 , 5 9 1 -9 2 (S .D . M iss. 2 0 1 2 ). 1 6contract with t h e D e p a r t m ent is, in ef f ect, a contract with the Com m ission and m ust be recorded in the m i nutes of the Com m ission. ¶29. In addition, the circuit court correctly ruled that Kelley ’s claim that the Departm ent b r e a c h ed an im

p lied contractual duty not to com m it negligence f ails to s tate a claim

. The MTCA applies t o any alleged “breach of [ an] im plied term o r condition of any warranty or contract,” 10 and “[ e]f

f orts t o re-label tort s uits as s o m ething else in order to a void som e part of the [ MTCA] are inef

f e ctive.” 11 Kelley can assert a n e g l i g e n c e claim under the MTCA, but he cannot avoid the MTCA sim ply by renam ing that claim . The circuit court correctly held that this claim

is “sim ply a re-labeled tort claim .”
IV. Kelley ’s inverse condem nation claim fails as a m atter of law . ¶30. The circuit c o u r t a l s o c o r r e c t l y g r a n t e d s u mma r y j u d g me n t o n Kelley ’s inverse condem nation claim

. T he third am ended com plaint contains no plausible allegation that the alleged dam age to t he p roperty was f or any “ public us e . ” M i s s . Const. art. 3, § 17. “Not
every tort com m itted by g overnm ental entity that results i n property dam age g ives rise to an action in inverse c ondem nation. Inverse condem n ation is a p propriate only when private property is t a k e n o r dam aged i n respect to public use or use f or the public benef

it.” Air Quality Prods. Inc. v. State , 157 Cal. Rptr. 791, 797 n.7 (Cal. Ct. App. 1979).

10 M iss. C o d e A n n . § 1 1 -4 6 -3 ( 1 ); see C i ty o f J a ckso n v. E

sta te o f S tew a rt ex rel. Wo m a ck , 9 0 8 S o . 2 d 7 0 3 , 7 1 0 -1 1 (¶¶3 5 -3 8 ) (M iss. 2 0 0 5 ).

11 A lexa n d

e r v. T a ylo r , 9 2 8 S o . 2 d 9 9 2 , 9 9 5 (¶1 0 ) (M iss. C t. A p p . 2 0 0 6 ) ; see M iss. C o d e A n n . § 1 1 -4 6 -1 1 (3 )(d )(ii) (“ T h e lim itatio n s p erio d p ro v id e d in th is sectio n co n tro ls an d sh all b e e x clu s iv e in all actio n s su b j e ct to an d b ro u g h t u n d er th e p r o v i sio n s o f [ th e M T C A ] , n o tw ith stan d in g th e n atu re o f th e claim [ o r ] th e lab e l o r o th er ch aracterizatio n th e claim an t m ay

u se to d escrib e it . . . .”). 1 7V. The circuit judge did n ot abuse his discretion by stay ing discovery .

¶31. Finally , the circuit judge did not abuse his discretion by stay ing d iscovery

. 12 “Issues of governm ental im m

unity ‘ should be r esolved at the earliest possible stage of litigation.’” Bell , 126 So. 3d at 1 006 (¶21) (quoting Hinds Cty. v. Perkins , 64 S o. 3d 982, 986 (¶11) (Miss. 2011)). Theref

ore, when such issues can be resolved without discovery , the trial court does not abuse its discretion by a ddressing “the im m unity issues prior to delving f urther into the litigation process.” Id. Stay ing discovery unti l such issues are resolved m ay , in appropriate cases, save def endant governm ental entities, as well as c laim a nts, considerable tim e and e xpense. In the present case, no additional di s c o v e r y w as n eeded to a ddress the def endants’ m otion f

or sum m ary judgm ent on those issues on which the circuit judge ruled. That we have reached a dif f erent result on one issue does n ot m e an t hat it was a n abuse of discretion to stay

discovery

until those issues were addressed.
CONCLUSION ¶32. The circuit court correctly ruled that all three d ef endants are polit i c a l s u b d i v i s i o n s entitled to t he protections and im m u nities of t he M TCA. However, because there is a genuine issue of m aterial f act a s to whether Kelley ’s notice of claim and com plaint were f

iled within the MTCA’s s tatute o f l i mi t a t i o ns, w e reverse and rem and with respect to the tort claim s that Kelley a sserts t hat are not barr e d b y sovereign im m unity

. See supra n.7. W e af f irm t he circuit court’s grant o f sum m ary judgm ent as to Kelley ’ s contract claim , inverse

12 We rev iew s u ch issu es u n d er an ab u se-o f -d i scretio n s tan d ard

. B ell v. M iss. D ep ’t o f H u m a n S ervs. , 1 2 6 S o . 3 d 9 9 9 , 1 0 0 5 (¶1 6 ) (M iss. C t. A p p . 2 0 1 3 ). 1 8condem nation claim , and those claim s that are barred by sovereign im m

unity

. 13 ¶33. THE JUDGMEN T O F T H E A L C O R N C O U N T Y C I R C U I T C OURT IS AFFIRMED IN P A RT A N D REVERSED AND REMANDED IN PART FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P I N I O N . ALL C O S T S O F T H I S A PPEAL ARE ASSESSED O NE-HALF TO THE A PPELLANT AND ON E
HALF TO THE APPELLEES. LEE, C .J., IRVING, P.J., AND I SHEE, J., CONCUR. FAIR, J., CONCURS IN PART AND I N THE RESULT WITHOUT SEPARATE WRITT E N O PINION. GRIFFIS, P.J., CONCURS I N PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND CAR L T O N, JJ. JAMES, J., CONCURS IN PAR T A ND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY FAIR, J. GRIFFIS, P.J., CONCURRING IN PART AND DISSENTING IN PART: ¶34. I agree with the m ajority t hat the Departm ent was a political subdivision subject to the
MTCA. I f

urther agree that Kelley ’s claim s f or breach of contract and inverse condem nation
f ail. The m ajority a lso correctly f inds that the trial court did not a b use its disc r e t ion when it stay ed discovery

while determ ining the issue of im m unity

. ¶35. I write separately , h owever, because I disagree that a genuine issue of m aterial f act exists regarding the statute of lim itations. I agree with the t rial court and am of the opinion that the statute o f lim itations b egan to run as of F ebruary 5, 2008. Accordingly , Kelley ’ s

13 O n ap p eal, th e d e f

en d an ts also arg u e th at th ey are en titled to im m

u n i ty u n d er th e M T C A b ecau se K elley ’s claim s arise o u t o f th e ex e rcise o f a d iscretio n a ry f u n ctio n o r d iscretio n ary allo catio n o f r eso u rces. S e e M iss. C o d e A n n . § 1 1 -4 6

- 9 (1 )(d ) & (g ) (R ev . 2 0 1 2 ). I n a d d i t i o n , th e C ity o f C o rin th arg u es th at it is en titled t o su m m ary j u d g m en t b ecau se K elley ’s a lleg a tio n s are d i rected so lely a t th e C o m m issio n a n d th e D ep a rtm en t. B u t see P u tt , 5 7 9 S o . 2 d at 5 3 5 n .1 (n o tin g th at in t h at c ase “ [ n ] o o n e c h a llen g e[ d ] th e p rem ise th at au th o rized actio n s tak en b y o f f icials an d a g e n ts o f th e C o m m issio n an d th e D ep artm en t are in law tak en as w ell o n b eh a lf o f th e C ity o f C o rin th ”). In th e circu it co u rt, th e p arties d id n o t a d d r ess th ese issu e s i n an y sig n if ican t lev el o f d etail, a n d th e co u r t’s o rd e r g ran tin g su m m a ry j u d g m en t d id n o t ad d ress th em at all. T h e p r e s en t reco rd is n o t ad eq u ately d ev elo p ed to ad d r ess th ese issu es, b u t th e d ef en d a n ts m ay

raise th e m

ag ain o n rem an d

. 1 9notice-of

-cla i m s l etter, dated F ebruary 19, 2009, f ell outside t he one-y ear statute of
lim itations. ¶36. “All actions brought under [ the M TCA] shall be com m enced within one (1) y ear next af ter the date of t he tortious, wrongf ul[ ,] or o t h e r

wise actionable conduct on which the liability p ha s e of the a ction is b ased[ .]” M iss. Code Ann. § 11-46-11(3)(a) (Rev. 2012). “[ T]he statute of lim itations f or claim s thereunder begins to run when all the elem ents of a tort, or cause of a ction, are present.” C aves v. Y arbrough , 991 So. 2d 142, 1 47 (¶22) (Miss. 2008). ¶37. Kelley claim s that the statute of lim itations does n ot be g i n t o r un until at least af ter February 21, 2008. Kelley bases this assertion o n t he f a ct that the Departm ent last sent

w o r k e rs to the property on February 21, 2008, and that he r eceived assurances t h a t t h e Departm ent would repair t he dam age to the property af ter this date. The record, however, indicates that the Departm ent last sent workers f or the i nstallation on January 24, 2008.
Fur t h e r , L a mbert stated in h is em ail that the installation of the water a nd gas lines was

com pleted as of his February 1, 2008 visit even t hough the Departm ent had f a iled to repair the dam age caused by

the installation. ¶38. T h e m a

jority contends “that the Departm ent’s f ailure to restore the property to its prio r condition af

ter the D epartm ent c om

pleted i nstallation o f the utility lines” is the g ravam e n of Kelley ’ s claim s. As such, the m ajority contends, K elley ’s claim s a c crued once the Departm ent inf

o rm ed Kelley that it would not m ake any f urther repairs as of March or April
2008. The m ajority ’s interpretation of the basis of Kelley ’s claim s relies on the proposition

2 0that Kelley ’s c ause of action stem s f rom the Departm e nt’s f

ailure to re s t o r e t h e land in

com pliance with industry standards. A s the m ajority correctly pointed out, however, Kelley and t he Departm ent did n ot h a ve a valid contract. Theref ore, a claim

f or the Departm ent’s
f ailure t o m ake repairs c ould not arise as a breach-of

- contract claim , but would have to arise

out of a n egligence c laim

. Following this logic, the industry standard w ould t hen have to create a duty

that the Departm ent breached by f ailing to m ake repairs. ¶39. This logic i s f

lawed, however, because industry s tandards do not create a duty and the
f ailure to conf

o rm with i ndustry st a n dards does not create an independent basis f or a negligence a ction. See W arren v. Pallets Inc. , 7 47 So. 2d 8 75, 877-78 (¶18) ( Miss. Ct. App. 1999) (f inding a logging industry standard d id not c reate a duty f rom which an independent

tort could arise). Theref

ore, Kelley ’s claim s necessarily arise f rom t he dam age itself as well

as the negligent w ork of the Departm ent. As such, the accrual o f Kelley ’s claim s began once Kelley knew of the dam age and the Departm ent’s substandard work. ¶40. Kelley stated that during the tim e that the Departm ent was installing the utility lines, he was “concerned about the a m ount of dam age that [ the D e p artm ent] w as causing[ .]” Further, Lam

bert’s em ail indicated that while the installation of t he water and gas lines was

com plete, the property suf

f e red f rom extensi v e dam age as of February 1 , 2008. Though Kelley denies he had personal knowledge of the em ail when i t was o riginally s e nt, Newcom b, Kelley ’s engineer, received notice of the em ail on February 5, 2008, which im p utes notice

to K elley

. See L ane v. O ustalet , 873 So. 2d 92, 95-96 (¶15) ( M i s s . 2004) ( “The law of
agency generally im

putes knowledge and inf

orm a tion r eceived by an agent in conducting the

2 1business of a principal to the principal, even where that k n o w l e dge or i nf orm ation is not

com m unicated by the agent to the principal.”) Theref ore, Kelley ’s observation coupled with
Lam bert’s em ail indicates Kelley knew of the dam age a nd t he Departm ent’s n egligent work as of February 5, 2008, or bef

o re. ¶41. The m ajority contends t his ana l y sis goes “bey ond the s tatute of lim itations issue properly bef

ore us” and p asses j udgm ent on the m erits of Kelley ’s claim s. This contention is incorrect. This analy sis only goes into the determ ination of t he basis of Kelley ’s claim s in order to decide when the claim s properly accrued f or statute-of

-lim itations purposes, not

w h e ther Kelley ’s claim s are m e ritorious or not. I agree with the m ajority t h a t “ t h e Departm ent had a duty to perf orm its work i n a non-n e gligent f ashion.” But the Departm ent’s f

ailure or com

pliance with that duty was apparent as of the February 5, 2008

em ail that detailed the p roblem s with the work site. This determ inatio n does not reject Kelley ’s negligence claim s, a s the m ajority argues, but m e r ely establishes the earliest known point of the Departm e nt’s actions that Kelley com plains of

. ¶42. For these reasons, I agree with the trial court a nd f i nd that Kelley ’s claim s a ccrued and the statute of lim itations began to run as of February 5, 2 008. Theref ore, Kelley ’s claim s are barred. BARNES AND CARLTON, JJ., JOIN THIS OPINION. JAMES, J., CONCURRING IN PART AND DISSENTING IN PART: ¶43. I agree with the m ajority ’s opinion that genuine i ssues of m aterial f act r egarding the date of accrual of

Kelley ’s claim

under the Mississippi Tort Claim s Act (MTCA) preclude

2 2sum m ary judgm ent on that claim

. H owever, I dissent f r om t he rem aining parts of the

m ajority opinion. I would f ind that the f

ollowing questions on appeal involve genuine issues of m aterial f

act a nd that it was error to g rant sum m a ry judgm ent: (1) w hether the trial court erred in dism issing Kelley ’s breach-of -contract claim ; (2) whether th e t r i a l c ourt erred in
f inding that the Departm ent w as a polit i c al subdivision and, theref ore, was a f

f orded the protections of the MTCA; (3) whether the trial court erred i n f ailing t o allow a n y discovery
f or a n y o f the issues presented in this case; and (4) whether the t rial court erred in dism issing Kelley ’s claim of inverse condem nation. I also would f ind that the trial court abused its discret i o n in stay ing discovery , which precludes this case f rom b eing ripe f

o r appellate review. Finding error, I would reverse and rem and these f our issues f

or f urther proceedings.
DISCUSSION
I. Whether the trial court erred in finding that the Departm ent w as a political subdivision and, therefore, w as afforded the protections of the MTCA. ¶44. Kelley c ontends that the trial court e rred in d eterm i ning th a t t h e D epartm ent was a political subdivision t hat was protected b y t h e MTCA. Kelley argues that t he D epartm ent

was a n independent contractor that subm itted a bid to install utilities on p rivate property

. As

a result, K elley asserts that in this particular set of circum stances, the D epartm ent behaved like a private contractor and should be treated as such. I agree. ¶45. The M TCA “provides the exclusive civil r em edy a gainst a g overnm ental entity o r its

em ploy e e f or a cts o r o mi s s i o n s which give rise to a suit. Any t ort claim f iled against a
governm ent entity o r its em ploy e e shall be brought only under the MTCA.” W atts v. Tsang ,

2 3828 So. 2d 785, 791 (¶17) (Miss. 2002). “ A governm ental entity is def ined as the state and political subdivisions as herein def ined.” Bolivar Leflore Med. Alliance LLP v. W illiams , 938 So. 2d 1222,1226 (¶14) (Miss. 2006). A political subdivision is def ined by statute as: [ A]ny body politic o r body c o rporate other t han the state responsible f or governm e ntal activities only in geographic a reas sm aller than t hat of the state, including, but not lim ited to, any county , m u nicipality , school district, charter school, volunteer f

ire departm ent that is a chartered n o n prof i t corporation p r o v i ding em ergency services under contract with a county or m unicipali t y , com m unity hospital as def

i ned in Section 4 1-13-10, airport authority , or other instrum entality of the state, whether or not t he body o r i nstrum entality h as the authority to levy taxes or to sue or be sued in its own nam e. Miss. Code Ann. § 11-46-1(i) (Supp. 2015). ¶46. “[ A] private c orporate entity which i s r esponsible f o r governm ental activities m ay properly be regarded as a political subdivision under [ s ection] 11-46-1(i).” Bolivar , 938 So. 2d at 1227 (¶14). Further, the suprem e court has s tated that “[ g]overnm ental actions under the MTCA are t hose which are perf orm ed p ursuant to the act o f statute or are a m atter of public necessity .” Spencer v. Greenwood/Leflore Airport Auth. , 834 So. 2d 707, 711 (¶12) (Miss. 2003) (citing Thomas v. Hilburn , 654 So. 2d 898, 9 00 (Miss. 1995)). A nd we have previously h eld that “ [ a] state entity does not lose its status u n der t he [ MTCA] by m erely contracting with a private entity .” Allstadt v. Baptist Mem’l Hosp ., 893 So. 2d 1083, 1087 (¶16) (Miss. Ct. App. 2005). However, Kelley argues t hat since t he Departm ent entered into

a contract with a private e ntity , under t he unique circum stances of this case, the D epartm ent was no longer a political subdivision under the protection of the MTCA. ¶47. In A llstadt this Court was able to exam i ne the c ontract' s language to d e t e r mi n e the relationship between t he contracting parties, but here the Def endants argue that there was no

2 4contract. Id. at 1 086 (¶13). W e also noted in Allstadt that language in a contract could have

been c o nvincing enough to create a private entity , c ausing a state entity to be deem ed private. Id. at 1087 (¶16). On the record bef ore us, I cannot determ ine whether the Departm ent acted

as a private entity and an i ndependent contractor in the construction and installation of the utility lines. I also cannot determ ine what the parties agreed upon r egarding the construction and installation of

the utility

lines. ¶48. The f

unction o f t h e D e p a r t me n t i s t o p r o v ide utilities, specif i cally gas and water, which are considered “a m atter o f public necessity ,” to the City of Corinth. The D epartm ent is governed by the Com m ission, which “controls, m anages[ ,] and operates the n atural gas and

water distribution sy stem s f or the City of Corinth.” However, there is nothing in the by laws of the Com m ission that authorizes t h e D e p a r tm ent t o act as a private contractor f or the installation of new util i t y services on private p roperty

. (Em p hasis a dded). Likewise, the

m ission statem ent of the Com m ission includes t he control, m a nagem ent, and operations of the gas and water distribution sy stem s, b ut it does not include the construction or installation of the sy stem s. ¶49. Kelley w a s inf

orm e d that the Departm ent was initiating a new p rogram to com pete with private construction contractors f or the installation of utility services. Kelley accepted the low bid s u b mi t t e d by t he Departm ent af ter receiving bids f

rom two other private construction contractors. I would f ind there is a genuine issue of m aterial f act as to whether the Departm ent departed f rom its stated f

unction of providing utilities, specif ically gas and water, t o t he City o f Corinth when it constructed and i n stalled the water l ines on Kelley ' s

2 5property f

ollowing t he bidding p rocess. See Poppenheminer v
. Estate of C o y l e , 9 8 So. 3d 1059, 1068 ( ¶ 2 9 ) (Miss. 2012) (holding that d espite providing valuable s ervices to its

com m unity , a volunteer f

ire departm ent was a p rivate entity and a n independent contractor
not clothed with im m

u nity under the MTCA). Additional discovery will allow the trial court
to p roperly determ ine whether the Departm e n t i s protected under the MTCA as a political subdivision when acting in this alternate capacity

. II. Whether the trial court erred in d i s missing K elley ’s breach-of-contract claim . ¶50. I d o not a gree with the trial c o u r t ' s d e t e r m i n a tion that Kelley ' s breach-of -contract claim was m erely a relabeled tort claim

. Kelley ' s c laim stem s f rom the Departm ent' s alleged b r e a c h of a construction agreem ent. Under Rule 8 of the Mississippi Rules of Civ i l Procedure, Kelley m ay state as m any separate c laim s as he has, regardless o f c o n s i s t ency . Jordan v
. W

ilson , 5 So. 3d 4 42, 447-48 (¶19) (Miss. C t. A pp. 2008). In Alexander v. Taylor , 928 So. 2d 992, 995-96 (¶10) (Miss. Ct. App. 2006), we stated:
It is s elf -evident t hat o n ly those suits " subject to" the [ M TCA] are controlled b y t hat Act' s statute of lim itations. Ef f orts to re-label tort s uits as som e thing e lse in order to avoid som e part of the Act are inef f ective, as t h i s q u o t e d language indicates. Yet that is not the s am e thing as a s tatutory assertion t hat there are no suits other than in tort t hat can be brought against governm ental of f ices and of

f icials. Thus, Kelley ' s breach-of

-contract claim m ay not be s ubject to the MTCA. The MTCA does

not a pply t o pure c ontract actions because enterin g i n t o a c ontract waives sovereign im m unity
f rom suits brought to e nf

orce the contract. Montgomery v
. Mississippi , 498 F. Supp. 2d 892, 905 (S.D. Miss. 2007).

2 6¶51. Kelley contends that a valid , b i n d i n g c o n t r a c t e x i s t e d b e t w e e n h i mself , the Departm ent, the Com m ission, and the City

. In order to establish a breach-of

- contract claim , “the plaintif

f m ust prove b y a preponderance of the evidence: (1) the existence o f a valid and binding contract, (2) the def endant has breached the contract, and ( 3) the p laintif f has been dam aged m onetarily .” Suddith v. Univ. of S. Miss ., 977 So. 2d 1158, 1 175 (¶35) (Miss. Ct. App. 2007). In order f

or a valid contract to exist, the f o llowing e l em ents m

ust b e present: “(1) two or m ore c ontracting parties, (2) consideration, ( 3) a n a g reem ent that is suf f iciently def inite, (4) parties with l egal capacity to m ake a contract, ( 5) m utual a s sent, and (6) no legal prohibition p recluding contract f orm ati o n.” Rotenberry v. Hooker , 864 So. 2d 2 66, 2 70 (¶13) (Miss. 2003). ¶52. The Departm ent adm itted in its answer t o Kelley ' s third am ended com plaint that there

was a written agreem ent with Kelley f or t he installation of water lines in Magnolia Lake
Estates

. T a k i n g K e l l ey ' s assertions as true, I would f ind that each elem ent of a valid and enf o r c eable contract is present. However, the Def endants a rgue that because the contract

was n ot entered into the m inutes of the Com m ission, there was no valid contract a nd thus no breach of contract. ¶53. “It is a f

undam ental and inviolable policy o f the S tate of M ississippi that the exclusive

m eans b y which a county g o vernm ent m ay enter a c ontract or am end o r a l t e r a n y contract entered by the county is t hrough public action by the county ' s b o a r d o f supervisors, which action m ust be evidenced by an entry on its m i nutes.” Pike Cty. v. Indeck Magnolia LLC , 866 F. Supp. 2d 589, 591 (S.D. Miss. 2012). It has also been determ ined b y t h e s u p r e m e

2 7court t hat the board of a utilities d istrict is a “public corporation and a body p olitic,” and, as

such, the g eneral rule that a board of supervisors m ay “act only through its m inutes” applies

to it as well. Rawls Springs Util. D ist. v. Novak , 765 So. 2d 1288, 1291 (¶10) (Miss. 2000). “This requirem ent applie s not only to contract f o rm ation, b ut to c ontract m odif ication as well.” Urban D evelopers LLC v. City of J ackson, Miss ., 468 F.3d 2 81, 299 (5th Cir. 2006).
How e ver, the suprem e court has also stated t hat “a contract with a p ublic board m ay be enf orced if enough of the term s and conditions of the contract are contained on the m inutes.” Rawls Springs Util. Dist ., 765 So. 2d at 1291 (¶10). ¶54. Here, the Com m ission' s m inutes on July 9, 2007, conf irm the receipt of $82,000 f rom Kelley as the initial pay

m ent f or "aid of construction f

o r water installation." T his supports
K e lley ' s claim that a valid and enf orceable contract was entered into by t he De p a r t me n t

. Indeed, the Departm ent, whi c h w a s s e l f- p r oclaim e d as a “not-f or-prof it” entity , does not keep

m inu t e s , s o o b v i o usly a contract is not ref lected in m inutes that d o not exist. Again, i t is adm itted by the Departm ent that it had an agreem ent with Kelley to install t he water lines. Conversely , the Departm ent' s argum ent that no contract exists because n o express contract is ref lect e d i n a n y m inutes m ay be construed as evidence that the Departm ent was acting outside its f

unction as a political s ubdivision and arm of the Com m ission when it subm itted

a bid and later constructed and installed the water lines on Kelley ' s p roperty

. I would f ind that there is a genuine issue of m aterial f act regarding whethe r t h e r e w a s a valid and enf orceable contract between these parties.
III. Whether the circuit court erred in failing to allow any discovery on any of the issues presented in this case.

2 8¶55. Kelley argues that the trial court erred in stay ing all the discovery in this case. I agree.

Kelley subm itted discovery requests to the Def endants with the i n i t i a l com plaint. Here, Kelley subm itted discovery and received lim ited responses. The Def endants r e quested an extension of tim e to respond to Kelley ' s discovery , and in lieu o f answering the d iscovery , f iled their initial m otion f

or sum m ary

judgm ent as well as a m otion to stay discovery

. ¶56. T h e s t a n d a r d o f r e v i ew “ of a trial court' s m anagem ent of t he [ pretrial] d i s c o v e r y
process is abuse of discretion.” Partin v. N. M iss. Med. Ctr. Inc ., 929 So. 2d 924, 938 (¶57) (Miss. C t. App. 2005) (citing Bowie v. Montfort Jones Mem'l Hosp

. , 861 So. 2d 1037, 1042 (¶14) (Miss. 2003)). Mississippi Rule of Civil Procedure 26(b)(1) provides: Parties ma y o b t a i n d iscovery regarding any m atter, not privileged, which is relevant to the issu e s r a i s e d by the claim s or def enses of any p arty

. The discovery m ay include the existence, description, nature, c u s tody , condition and location of a ny books, docum ents, electronic or m agnetic data, or other tangible things; and the identity and location of persons (i) having knowledge of any discoverable m atter or (ii) who m a y be called as witnesses at t he trial. It is not ground f

o r objection that the inf

orm ation sought w ill b e inadm issible at the trial if the inf

orm ation sought a

ppears reasonably calcu l a ted to lead to the discovery

of adm issible evidence. ¶57. Moreover, “the party resisting sum m a ry judgm ent m ust present specif

ic f a cts why he

cannot oppose the m otion and m ust specif ically dem onstrate ‘how postponem ent of a ruling

on the m otion will enable him , b y discovery o r other m eans, to rebut t he m ovant' s showing of t he absence of a g enuine issue of f act.’” Grant v. F

ord Motor Co. , 89 So. 3d 655, 674-75 (¶36) (Miss. Ct. App. 2012). ¶58. K e lley m ade an at t e mp t t o o b t a i n i n f o r ma t i o n t h a t w a s i n t h e c o n t r o l o f t h e Def endants to def

e nd against the sum m a ry -judgm e nt m o tion, nam ely to determ ine whether

2 9the Departm ent was acting as an independent contractor and private entity

. For instance,

it was not until af

ter the hearing on the c om peting m o tions f

o r sum m ary judgm ent, that Kelley rece i v ed the by laws of the Com m ission. Kelley was not af f o rded an adequate opportunity to c onduct m e aningf ul discovery

. The order s tay ing discov e r y s i gnif icantly
im p eded Kelley ' s ability to def end against t he m otion f

or sum m ary judgm ent, a s m uch of the
inf orm ation relevant t o his claim s was in the e xclusive control o f the Def e ndants. Theref

ore, I would f ind that t he trial court a

bused its discretion in ref using to lif

t t he stay of d iscovery

. IV. Whether the trial court erred in dism issing K el ley ’ s claim of inverse condem nation. ¶59. Finally , Kelley argues that the trial court e r r e d i n d i s m i s s i ng his inverse-condem nation claim

. Kelley argues that the Def e n d a n t s a re responsible f or com pensating him f

or the dam ages caused t o h is p rivate property under the doctrine of inverse condem nation. Article 3, Section 17 of

the Mississippi Constitution provides: Private property shall not be taken or dam aged f or p ublic use, except on due com pensation being f

irst m ade to the owner or owners thereof , i n a m anner to be prescribed by law; and whenever an attem pt i s m a de to take private property f or a use allege d t o be public, the question w h ether the contem plated use be public shall be a judicial question, and, as s uch, determ ined without regard to legislative assertion that the use is public. ¶60. The Mississippi Suprem e Court has he l d t h a t “ S e c t i o n 1 7 is not applicable except where private property i s taken f or public use b y p ublic authorities.” B radley v. Tishomingo
C t y ., 810 So. 2d 600, 603 ( ¶13) (Miss. 2002). The trial court determ ined that K e l l e y ' s inverse-condem nation claim was n ot applicable b ecause there was no evidence that any

em inent-dom ain or c ondem nation action was com m enced b y the Def endants against Kelley

3 0o r his property

. However, the taking or dam aging of property w ithout a f orm a l em inen t

dom ain o r condem nation a ction is exactly what an inverse-condem nation claim is based on. Inverse condem nation[ ] h as been characterized as an action or em ine n t dom ain proceeding initiated by t he property owner, rather t han the condem nor, and h as been deem ed to be available where private property has been a ctually taken f or public use w ithout f

orm al condem nation proceedings and where i t appears t hat there is no intention or willingness of the taker to bring such proceedings. Jackson Mun. Airport Auth. v. W r ight , 232 So. 2d 709, 713 (Miss. 1970). ¶61. The m a

j o r i t y s t a t e s t hat there is no evidence that K e l ley ' s property was taken or dam aged f

or a ny f orm of public u se. C e r t a i nly , the lines were installed with the ultim ate
purpose of providing public utilities, specif ically gas and water, t o households in the City of Corinth

. I w o u l d f

ind that Kelley has alleged suf f icient f acts that preclude t he grant of

sum m ary judgm ent on this issue and reverse the grant of sum m a r y judgm e nt on this issue.
CONCLUSION ¶62. I agr e e w i t h t h e ma j o r i t y that genuine issues of m aterial f act preclude the grant of

sum m ary judgm ent on Kelley ’ s claim under the MTCA. However, I would f ind the issues of whether the D epartm ent was a political s ubdivision; whether t he M T C A a pplies to the Departm ent, Com m ission, and City ; whether a contract exists; and whether the doctrine of inverse condem nation is applicable involve genuine issues of m aterial f act that preclude the granting of s um m ary judgm ent in f avor o f the Def

endants. I would also f

i n d that the trial

court abused its discretion in s tay ing discovery because Kelley was denied any m eaningf ul opportunity to def

end against the Def

endants’ m o tion f

or s um m a r

y judgm ent. Accordingly , I would reverse and rem and this case f or f urther proceedings.

3 1