IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-00272-SCT

ROBERT C. JACKSON

v.

CITY OF WIGGINS, A MISSISSIPPI MUNICIPAL CORPORATION

DATE OF JUDGMENT: 01/07/1999

TRIAL JUDGE: HON. JERRY O. TERRY, SR.

COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: THOMAS M. MATTHEWS, JR.

ATTORNEYS FOR APPELLEE: REBECCA C. TAYLOR

PATRICK R. BUCHANAN

ALAN K. SUDDUTH

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 03/16/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/6/2000

BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.

PRATHER, CHIEF JUSTICE, FOR THE COURT:

STATEMENT OF THE FACTS AND CASE

¶1. On December 25, 1996, Robert C. Jackson ("Jackson") was injured when he fell into a hole which had

been dug on his property by employees of the City of Wiggins ("the City"). On October 13, 1997, Jackson

sent a notice of claim to the City, alleging that he had suffered injuries resulting from the negligence of the

City's employees. Jackson filed suit against the City on December 19, 1997, approximately sixty-seven

days after filing his notice of claim. On January 8, 1999, the circuit judge granted the City's motion for

summary judgment, finding that Jackson had failed to comply with the ninety-day "waiting period" set forth

in Miss. Code Ann. § 11-46-11 (Supp. 1999). Feeling aggrieved, Jackson timely appealed to this Court.

ISSUE

Whether the Appellant in filing suit against the City of Wiggins under Mississippi Tort

Claims Act before the expiration of 90-days from and after the date of notice requires

dismissal of that Complaint under Miss. Code Ann. § 11-46-11.

¶2. In interpreting the provisions of the Mississippi Tort Claims Act, this Court has adopted a substantial

compliance standard, holding that "(w)hen the simple requirements of the Act have been substantially

complied with, jurisdiction will attach for the purposes of the Act." Reaves ex rel. Rouse v. Randall, 729
So.2d 1237, 1240 (Miss. 1998). See also: Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999),

overruling City of Jackson v. Lumpkin, 697 So.2d 1179, 1182 (Miss.1997) and Carpenter v.

Dawson, 701 So.2d 806, 808 (Miss.1997). The present case requires this Court to consider, once again,

the requirement that a plaintiff wait ninety days between providing notice of his claim and filing suit against a

governmental entity. Specifically, Miss. Code Ann. § 11-46-11(1) provides in pertinent part that:

(1) After all procedures within a governmental entity have been exhausted, any person having a claim

for injury arising under the provisions of this chapter against a governmental entity or its employee

shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days

prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive

officer of the governmental entity.

In granting the City's motion for summary judgment, the circuit judge found that:

Jackson gave the City notice of his claim on October 13, 1997 well within the one year allowed by

Miss. Code Ann. § 11-46-11 . . . but Jackson did not wait the 90 days specified be statute; he filed

his lawsuit on December 19, 1997, only 67 days after giving notice.

The circuit judge noted that, as of the date of his ruling,(1) this Court had not issued an opinion interpreting

the ninety day waiting period, and absent controlling authority, the judge concluded that the City was

entitled to a dismissal.

¶3. However, the circuit judge did not have the benefit of this Court's recent decision in City of

Pascagoula v. Tomlinson, 741 So.2d 224 (Miss. 1999), which is squarely applicable to the facts of the

present case. This Court held in Tomlinson that:

[T]he dismissal of a lawsuit based on a failure to comply with the waiting period is a disproportionate

remedy and contrary to the purposes of the Legislature in enacting the Tort Claims Act. . . . We

conclude that the better approach is, instead, for a governmental entity to request that the trial court

issue an order staying the lawsuit until such time as the entity has been given the benefit of the

applicable waiting period. The trial courts of this State have the inherent authority to grant such stays,

and we direct that such orders be granted as necessary to ensure that a governmental entity is given

the benefit of the waiting period. In the event that the trial court finds the requirements of the waiting

period to have been violated, the governmental entity should be permitted to recover any expenses

(including court costs and attorney's fees) which it incurs in obtaining a stay of the proceedings. . . . .

In cases in which no such stay is requested, however, the issue should properly be considered to have

been waived.

Tomlinson, 741 So.2d at 228-29. Pursuant to Tomlinson, the City's sole remedy for Jackson's failure to

comply with the ninety-day waiting period was to file a motion to stay the lawsuit, and the City's failure to

file such a motion constitutes a waiver of its right to object to Jackson's non-compliance with the waiting

period.

¶4. Faced with this adverse authority, the City makes two primary arguments. The City initially argues that

this Court should overrule its holdings adopting a substantial compliance scheme and return to the strict

compliance scheme which prevailed prior to Reaves. This argument is without merit. The substantial

compliance scheme of interpreting the Tort Claims Act is now firmly rooted in our jurisprudence, and we
decline the City's invitation to return to a strict compliance scheme.

¶5. Alternatively, the City argues that this Court should not apply our holding in Tomlinson retroactively to

the facts of the present case. Jackson correctly notes however that, as a general rule, "judicially enunciated

rules of law are applied retroactively." Ales v. Ales, 650 So.2d 482, 484 (Miss. 1995). The City makes no

valid arguments as to why this general rule of retroactivity should not be applicable to the present case, and

it does not appear that a retroactive application of Tomlinson would work any undue hardship or

unfairness upon the City in the present case. This Court has issued numerous opinions interpreting the

provisions of the Tort Claims Act, and we have never indicated that such opinions were only to be applied

prospectively.

¶6. The trial court's judgment is accordingly reversed, and this case is remanded for additional proceedings

consistent with this opinion

¶7. REVERSED AND REMANDED.

PITTMAN AND BANKS, P.JJ., McRAE, SMITH, MILLS, WALLER

AND COBB, JJ., CONCUR.

1. The circuit judge's ruling was issued on January 8, 1999.