IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-CA-00929-SCT
HINDS COUNTY, MISSISSIPPI, AND SHERIFF
MALCOLM MCMILLIN, IN HIS OFFICIAL
CAPACITY
v.
VERN PERKINS, INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE HEIRS AT LAW
AND WRONGFUL DEATH BENEFICIARIES OF
SAUN KEITH PERKINS-WILFORD, DECEASED
DATE OF JUDGMENT: 04/20/2010
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: MICHELLE TOLLE HIGH
J. LAWSON HESTER
ATTORNEY FOR APPELLEE: JAMES LEE KELLY
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: APPEAL DISMISSED - 06/30/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. In this wrongful death case, a prisoner escaped from the custody of the Hinds County
sheriff, and, while evading capture, the escapee struck a pedestrian with a stolen vehicle.
The pedestrian died, and a wrongful death suit was filed against the County. The trial court
denied the County’s motion for summary judgment based on its claim of sovereign
immunity, and the County appealed. Finding no right to appeal a pretrial denial of sovereign
immunity, we dismiss the appeal because of its interlocutory nature.
Facts and Procedural History
¶2. According to the complaint, on July 14, 2005, Inmate Travis Smith escaped from the
custody of the Hinds County Sheriff’s Department. While on the run, Smith obtained an
automobile and, as he was driving, struck a pedestrian, Saun Keith Perkins-Williford. Smith
fled the scene of the accident, and Perkins-Williford died of his injuries.
¶3. Vern Perkins, individually and as the representative of the decedent’s wrongful death
beneficiaries, filed suit against the Hinds County Sheriff, in his official capacity, and the
Hinds County Board of Supervisors (collectively, “Hinds County”). Perkins alleged that the
County was liable for Perkins-Williford’s death because it had “failed to use ordinary care
in the exercise of its non-discretionary duty to confine [Smith] and prevent his escape.” The
complaint also alleged that “any and all actions or omissions on the part of ‘police
employees’ relating to the events herein complained of, were in reckless disregard of the
safety and well-being of Plaintiff’s decedent.”
¶4. Hinds County filed a motion to dismiss and/or for summary judgment, arguing that
it was immune from liability under the Mississippi Tort Claims Act (MTCA), Mississippi
Code Section 11-46-9 (Supp. 2010). Perkins filed a response, attaching Smith’s arrest
record, a deposition transcript of the deputy sheriff who had been guarding Smith the day of
his escape, the accident report, and the transcript of Smith’s guilty pleas to felony escape and
leaving the scene of an accident. It is not clear from the record whether there was a hearing;
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but on April 20, 2010, the circuit judge summarily denied the County’s motion, stating in its
order that “there are genuine issues of material fact to be resolved in this matter.”
¶5. Hinds County filed its notice of appeal on May 19, 2010, within the time for filing a
direct appeal, but outside the time for filing a petition for interlocutory appeal. Although the
denial of its motion to dismiss and/or for summary judgment was an interlocutory order, the
County alleged in its notice of appeal that a denial of sovereign immunity should be
automatically appealable. The plaintiff did not file with this Court a motion to dismiss the
appeal. Instead, Perkins argues in his reply brief that this Court should dismiss the appeal
and award attorney’s fees.
Discussion
¶6. We are asked to determine whether denials of motions for summary judgment based
on claims of sovereign immunity are directly appealable despite their interlocutory nature.
Questions of jurisdiction are questions of law, reviewed de novo. RAS Family Partners, LP
v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007) (citing Trustmark Nat’l Bank v.
Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)).
¶7. The parties do not dispute that the denial of a motion for summary judgment is an
interlocutory order or that the only means of seeking appellate review of an interlocutory
order is by filing a petition with this Court under Rule 5 of the Mississippi Rules of Appellate
Procedure. That rule provides, in relevant part:
(a) Petition for Permission to Appeal. An appeal from an interlocutory order
may be sought if a substantial basis exists for a difference of opinion on a
question of law as to which appellate resolution may:
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(1) Materially advance the termination of the litigation and avoid exceptional
expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or
(3) Resolve an issue of general importance in the administration of justice.
Appeal from such an order may be sought by filing a petition for permission
to appeal with the clerk of the Supreme Court within 21 days after the entry of
such order in the trial court with proof of service on the trial judge and all
other parties to the action in the trial court.
M.R.A.P. 5(a). See also M.R.C.P. 54(b) (providing that a judgment is not final, and therefore
not appealable, if it “adjudicates fewer than all of the claims or the rights and liabilities of
fewer than all the parties”).
¶8. Hinds County did not file a petition for interlocutory appeal within 21 days of the
circuit court’s denial of its motion for summary judgment. Instead, the County filed a notice
of appeal pursuant to Rule 4 of the Mississippi Rules of Appellate Procedure, which governs
appeals as of right. The County argues that we should adopt the federal approach, which
allows appeals as of right from orders denying qualified or absolute immunity to the extent
they are based on questions of law.
¶9. Federal courts of appeal have jurisdiction over “final decisions” of district courts. 28
U.S.C. § 1291 (2006). Thus, the courts of appeal may entertain interlocutory review of
district court decisions in limited circumstances, that is, when a collateral order is tantamount
to a “final decision.” Johnson v. Jones, 515 U.S. 304, 310, 115 S. Ct. 2151, 132 L. Ed. 2d
238 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93
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L. Ed. 1528 (1949); 28 U.S.C. § 1291) (2006). In determining whether a collateral order
amounts to a final decision which qualifies for immediate appeal, the order must “[1]
conclusively determine the disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively unreviewable on appeal from
a final judgment.” Johnson, 515 U.S. at 310 (quoting Puerto Rico Aqueduct and Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993)
(brackets in original)).
¶10. The Supreme Court has applied this “collateral order doctrine” to hold that federal
courts of appeal have jurisdiction to review denials of immunity with respect to public
officials, sued in their individual capacities under federal law, as long as that determination
turns on a matter of law. Mitchell v. Forsyth, 472 U.S. 511, 526-30, 105 S. Ct. 2806, 2815-
16, 86 L. Ed. 2d 411 (1985). In Forsyth, 472 U.S. at 525-27, the Supreme Court held that
the denial of immunity to a public official, whether qualified or absolute, was “effectively
unreviewable” after trial because immunity contemplates protection not simply from liability,
but also from standing trial. The Court likened a denial of immunity to a denial of a criminal
defendant’s right not to stand trial on double jeopardy grounds:
A major characteristic of the denial or granting of a claim appealable under
Cohen’s “collateral order” doctrine is that “unless it can be reviewed before
[the proceedings terminate], it can never be reviewed at all.” Stack v. Boyle,
342 U.S. 1, 12, 72 S. Ct. 1, 7, 96 L. Ed. 1 (1952) (opinion of Jackson, J.); see
also United States v. Hollywood Motor Car Co., 458 U.S. 263, 266, 102 S. Ct.
3081, 3083, 73 L. Ed. 2d 754 (1982). When a district court has denied a
defendant’s claim of right not to stand trial, on double jeopardy grounds, for
example, we have consistently held the court’s decision appealable, for such
a right cannot be effectively vindicated after the trial has occurred. Abney v.
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United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). Thus,
the denial of a substantial claim of absolute immunity is an order appealable
before final judgment, for the essence of absolute immunity is its possessor’s
entitlement not to have to answer for his conduct in a civil damages action. See
Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982);
cf. Helstoski v. Meanor, 442 U.S. 500, 99 S. Ct. 2445, 61 L. Ed. 2d 30 (1979).
Id. at 525. However, not every claim to governmental immunity qualifies as immunity from
suit. The United States Supreme Court has cautioned that “[Section] 1291 requires courts
of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye,
for virtually every right that could be enforced appropriately by pretrial dismissal might
loosely be described as conferring a ‘right not to stand trial.’” Swint v. Chambers County
Comm’n, 514 U.S. 35, 43, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995) (quoting Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873, 114 S. Ct. 1992, 128 L. Ed. 2d 842
(1994)).
¶11. The County’s argument, that immunity under the MTCA shields the governmental
entity from having to defend itself in court proceedings, relies largely on the following
language from Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (Miss. 2003):
The Mississippi Legislature has determined that governmental entities and
their employees shall be exempt from liability in certain situations as outlined
in [Mississippi Code Section] 11-46-9. This exemption, like that of qualified
or absolute immunity, is an entitlement not to stand trial rather than a mere
defense to liability and, therefore, should be resolved at the earliest possible
stage of litigation. Cf. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001). Therefore, immunity is a question of law and is a
proper matter for summary judgment under [Mississippi Rule of Civil
Procedure] 56.
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Thus, Mitchell established that the question of sovereign immunity under Mississippi law
was an appropriate matter for summary judgment because the MTCA contemplates immunity
from both liability and judicial proceedings. However, Mitchell, 846 So. 2d at 1029, was
properly before this Court by way of a direct appeal as a result of the trial court’s grant of
summary judgment in favor of the governmental entity. Mitchell did not hold that a
governmental defendant has a right to appeal directly a denial of summary judgment; the
opinion simply noted that the better practice is for trial courts to resolve issues of immunity
“at the earliest possible stage of litigation.” Id.1
¶12. This Court has never recognized that governmental immunity from suit establishes a
right directly to appeal a pretrial ruling denying immunity. Instead, denials of immunity at
the summary judgment stage are reviewed via the interlocutory appeal process. See e.g.,
Gorton v. Rance, 52 So. 3d 351 (Miss. 2011); Miss. Dep’t of Mental Health v. Shaw, 45 So.
3d 656, 657 (Miss. 2010); Covington County Sch. Dist. v. Magee, 29 So. 3d 1 (Miss. 2010).
¶13. Other than Mitchell, 846 So. 2d 1028, the only Mississippi case cited by the County
on this issue is Meeks v. Miller, 956 So. 2d 864 (Miss. 2007). The County does not explain
how Meeks supports its position; but, because the case was before the Court on a petition for
certiorari, the opinion in that case might lead one to believe that this Court allowed a direct
appeal from a denial of summary judgment based on sovereign immunity. Meeks, 956 So.
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This Court also has recognized, in a case that turned on pre-MTCA immunity law,
that this “entitlement not to stand trial” may, in addition, protect state governmental actors
from unnecessary discovery. McQueen v. Williams, 587 So. 2d 918, 924-25 (Miss. 1991).
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2d at 867. However, the Court of Appeals’ opinion (from which this Court granted a petition
for certiorari) makes it clear that the case was “an interlocutory appeal.” Meeks v. Miller,
956 So. 2d 942, 943 (Miss. Ct. App. 2006).
¶14. According to the appellate record in Meeks, the defendant filed a direct appeal from
a denial of summary judgment, and the plaintiffs filed a motion to dismiss the appeal because
of its interlocutory nature. The defendant responded with many of the same arguments made
by the County in the instant case. This Court then entered an order treating the notice of
appeal as a petition for interlocutory appeal, and granting the request for review. Rather than
retaining the case for review, as is the normal course of action in interlocutory appeals, we
assigned the case to the Court of Appeals. Although the notice of appeal was filed outside
the time for seeking interlocutory review under Rule 5 of the Mississippi Rules of Appellate
Procedure, the defendant did not receive timely notice of the trial court’s order from the
Hinds County Circuit Clerk’s Office. Moreover, the defendant requested in his notice of
appeal that, as an alternative, this Court treat the notice as a petition for interlocutory appeal.
Thus, the appellate proceedings in Meeks do not support the County’s position and simply
reaffirm our normal practice of interlocutory review.
¶15. The County’s remaining arguments are based on federal law, and it implicitly
recognizes that we are in no way bound by those decisions.2 Indeed, the United States
2
In its reply brief, the County cites Ortiz v. Jordan, __ U.S. __, 131 S. Ct. 884, 884,
893 (Jan. 24, 2011), stating that “the failure to raise the denial of immunity at the time the
denial is issued may in fact preclude a defendant from being able to assert that right at a later
time.” Ortiz has no application here, first, because it involved a claim under federal law, and
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Supreme Court has held that there is no federal right to an interlocutory appeal in state court
from a denial of qualified immunity. Johnson v. Fankell, 520 U.S. 911, 117 S. Ct. 1800,
138 L. Ed. 2d 108 (1997). See also In re World Trade Center Disaster Site Litigation, 521
F.3d 169, 181 (2d Cir. 2008) (“[F]ederal law decides the categories of appealable orders;
state law determines if a state law claim, or defense, falls within one of the categories.”)
¶16. Hinds County argues that this Court should adopt the “collateral order doctrine”; but
as discussed above, that doctrine was established in response to the federal statute which
limits courts of appeals’ jurisdiction to “final decisions” of district courts. 28 U.S.C. § 1291
(2006). This Court derives its jurisdiction from the Mississippi Constitution and state
statutes. Miss. Const. art. 6, § 146 (“The Supreme Court shall have such jurisdiction as
properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than
those specifically provided by this Constitution or by general law.”) Moreover, we have
recognized that the federal “collateral order doctrine” exists in the double jeopardy context,
but have not interpreted the doctrine to allow a state right to immediate appeal. Beckwith
v. State, 615 So. 2d 1134, 1138 (Miss. 1992) (citing Abney, 431 U.S. at 657). Instead,
review of denials of motions to dismiss criminal charges based on double jeopardy is
permissible, not mandatory. Id.
second, because the immunity defense at issue did not meet the federal standard for collateral
review. The central holding in Ortiz, 131 S. Ct. at 889, was that a party may not appeal an
order denying summary judgment after a full trial on the merits.
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¶17. In Mississippi, the only time an appeal of right is allowed from an otherwise
interlocutory order is in the case of an appeal from an order either denying or granting
arbitration. Sawyers v. Herrin-Gear Chevrolet Company, Inc., 26 So. 3d 1026, 1034 (Miss.
2010). Of course, “[w]hen a commercial transaction involving interstate commerce includes
an agreement to arbitrate disputes, federal law controls the enforcement of the arbitration
agreement,” MS Credit Center, Inc. v. Horton, 926 So. 2d 167, 173 (Miss. 2006) (citing
Guiness Harp Corp. v. Jos. Schlitz Brewing Co., 613 F. 2d 468 (2d Cir. 1980)), which
includes the right to appeal. Sawyers, 26 So. 3d at 1034. As already discussed, in the
present case, state law governs the right to appeal.
¶18. Moreover, unlike denials of sovereign immunity, a denial of arbitration does not
require us first to determine whether the issue turns on a question of law before the right to
appeal arises. Often, a governmental entity’s immunity will turn on factual determinations
that may not be adjudicated fully until a bench trial has occurred. The trial judge, as the trier
of fact, initially may deny an immunity claim, but reconsider his or her ruling after a full trial
on the merits. In those instances, an appeal as of right from the initial denial would not serve
the interests of judicial economy. Hinds County does not tell this Court how a “collateral
order doctrine” would be any more efficient than our present practice under Rule 5 of the
Mississippi Rules of Appellate Procedure, which entitles parties to seek permissive appeals
to resolve questions of law. Thus, we decline to adopt a rule that would allow direct appeals
as of right from pretrial denials of sovereign immunity.
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Conclusion
¶19. We find no compelling reason to abandon our current practice regarding interlocutory
review of pretrial denials of sovereign immunity. See M.R.A.P. 5. Therefore, we dismiss
this appeal. Because the plaintiff has not cited any authority to support his request for
attorney fees, the issue is not properly presented to the Court, and therefore, the request is
denied. United Amer. Ins. Co. v. Merrill, 978 So. 2d 613, 631 (Miss. 2007); M.R.A.P.
28(a)(6).
¶20. APPEAL DISMISSED.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
CHANDLER, PIERCE AND KING, JJ., CONCUR.
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