THE CITY OF CORINTH, MISSISSIPPI

Transcription

1 E-Filed Document May :13: CA Pages: 47 IN THE SUPREME COURT OF MISSISSIPPI NO TS ALESA DAWN CRUM PLAINTIFF-APPELLANT vs. THE CITY OF CORINTH, MISSISSIPPI DEFENDANT-APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF ALCORN COUNTY, MISSISSIPPI BRIEF OF THE CITY OF CORINTH, MISSISSIPPI ORAL ARGUMENT NOT REQUESTED MITCHELL O. DRISKELL, III - BAR # mdriskell@danielcoker.com DANIEL, COKER, HORTON & BELL, P.A. 265 SOUTH LAMAR BOULEVARD SUITE R POST OFFICE BOX 1396 OXFORD, MISSISSIPPI PHONE: (662) FAX: (662)

2 IN THE SUPREME COURT OF MISSISSIPPI NO TS ALESA DAWN CRUM PLAINTIFF-APPELLANT vs. THE CITY OF CORINTH, MISSISSIPPI DEFENDANT-APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies at e following listed persons and/or entities have an interest in e outcome of is case. These representations are made in order at e Justices of e Supreme Court and/or e Judges of e Court of Appeals may evaluate possible disqualification or recusal: 1. Alesa Dawn Crum and Hannah Braddock Plaintiff/Appellant, Plaintiff in interest 2. The City of Corin, Mississippi Defendant/Appellee. 3. Tacey Clark Locke, Esq., Tacey Clark Locke, PLLC, 311 W. Eastport Street, Iuka, Mississippi and Matew D. Wilson, Esq., The Law Office of Matew Wilson, PLLC, West Main Street, Starkville, Mississippi. Counsel for Plaintiff/Appellant. 4. Mitchell O. Driskell, III, Esq., Daniel Coker Horton & Bell, P.A., 265 Nor Lamar Boulevard, Post Office Box 1396, Oxford, MS Counsel for Defendant/Appellee. 5. Honorable Jim S. Pounds, Prentiss County Circuit Court Trial Judge in e abovestyled litigation. nd THIS, e 2 day of May, /s/ Mitchell O. Driskell, III MITCHELL O. DRISKELL, III ATTORNEY FOR APPELLEE i

3 TABLE OF CONTENTS PAGE: CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii I. STATEMENT OF THE ISSUES A. Wheer or not e trial court properly held at Crum s claim arose out of e exercise or performance or failure to exercise or perform a discretionary function or duty, and, erefore, Corin is immune pursuant to Miss. Code Ann (1)(d). B. Wheer or not Crum s failure to raise provisions of Federal Water Pollution Control Act and e Mississippi Air and Water Pollution Control Law e trial court level procedurally bars her from presenting ese arguments on appeal. C. Wheer or not Crum s judicial estoppel argument is barred from consideration on appeal, and, if not, applies to e facts alleged in e Complaint. II. STATEMENT OF THE CASE III. SUMMARY OF THE ARGUMENT IV. ARGUMENT V. CONCLUSION VI. CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES PAGE Adams v. City of Clarksdale, 48 So. 242 (Miss. 1909) Alexander v. Daniel, 904 So. 2d 172, (Miss. 2005) , 20 Alior v. City of Maynardville, Tenn., 368 F. 3d 587, (6 Cir. 2004) Allyn v. Wortman, 725 So. 2d 94 (Miss. 1998) Anderson v. LaVere, 2014 Miss. LEXIS 119, No CA-0061-SCT (Miss. Feb. 20, 2014) Aultman v. Delchamps, Inc., 202 So. 2d 922 (Miss. 1967) Banes v. Thompson, 352 So. 2d 812 (Miss. 1977) , 37 Bender v. Meridian Mobile Home Park, 636 So. 2d 385 (Miss. 1994) Booker v. State, 5 So. 3d 411 (Miss. 2008) Boyle v. Miss. State Oil & Gas Board, 794 So. 2d 149 (Miss. 2001) , 20 Bowen v. State, 607 So. 2d 1159 (Miss. 1992) Chantey Music Publ g, Inc. v. Malaco, Inc. 915 So. 2d 1052 (Miss. 2005) , 17 City of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60 (Miss. 2005) City of Natchez v. De La Barre, 2012-CA COA ( 13) (Miss. Ct. App. Mar. 25, 2014) , 11, 16 City of Ocean Springs v. Homebuilders Ass n of Miss., 932 So. 2d 44 (Miss. 2006) Coleman & Coleman Enterprises, Inc. v. Waller Funeral Home 106 So. 3d 309 (Miss. 2012) Collins v. State, 159 So. 865 (1935) Craig v. City of Yazoo City, 2013 U.S. Dist. LEXIS , *12-13 (S.D. Miss. Oct. 28, 2013) Doe v. Miss. Dep t of Corrections, 849 So. 2d 350 (Miss. 2003) , 22 Durham v. Univ. of Miss., 966 So. 2d 832 (Miss.Ct.App. 2007)

5 Exxon Corp. v. Train, 554 F. 2d 1310 (5 Cir. 1977) Farris v. Miss Transp. Comm n, 63 So. 3d 1241 (Miss.Ct.App. 2011) Fortenberry v. City of Jackson, 71 So. 2d 1196 (Miss. 2011).... 7, 8, 9, 10, 11, 12, 13, 23, 27, 28 Friends of e Ear, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) Germany v. Denbury Onshore, LLC, 984 So. 2d 270 (Miss. 2008) , 20 Goodyear Tire & Rubber Co. v. Brashier, 298 So. 2d 685 (Miss. 1974) Gray v. Beverly Rehabilitation Services, Inc., 261 F. Supp. 2d 652 (S.D. Miss. 2003) Hankins v. City of Cleveland, 90 So. 3d 88 (Miss. Ct. App. 2011) , 11, 16 Hodgson v. Miss. Dep t of Corrections, 963 F. Supp. 776 (E.D. Wis. 1997) Holcomb v. Singing River Elec. Power Ass n, 231 So. 2d 192 (Miss. 1970) Illinois v. City of Milwaukee, 599 F. 2d 151 (7 Cir. 1979) , 29 In re Estate of Myers, 498 So. 2d 376 (Miss. 1986) , 20 In re Moore, 310 B.R. 795 (N.D. Miss. Bankr. 2004) Jackson v. Birmingham Bd. of Educ., 309 F. 3d 1333 (11 Cir. 2002) Kelly v. United States, 618 F. Supp (W.D. Mich. 1985) Kirk v. Pope, 973 So. 2d 981 (Miss. 2007) Little v. MDOT, 129 So. 3d 132 (Miss. 2013) , 14, 16 Louisianna Environ. Action Network v. City of Baton Rouge, 677 F. 3d 737 (5 Cir. 2012) Middlesex Co. Sewarage Auority v. National Sea Clammers Assoc n., 435 U.S. 1 (1981) Miss. Dep t of Mental Heal v. Ellisville State School, 45 So. 3d 656 (Miss. 2010) , 9 Miss. Dep t of Mental Heal v. Hall, 936 So. 2d 917 (Miss. 2006) , 26 Miss. Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002) Moore v. Mem l Hosp. of Gulfport, 825 So. 2d 658 (Miss. 2002) Norman v. Prestage Farms, Inc., 2007 U.S. Dist. LEXIS (N.D. Miss. Mar. 30, 2007)

6 Pascagoula Sch. Dist. v. Tucker, 91 So. 3d 598 (Miss. 2012) Patterson v. T.L. Wallace Construction, Inc., 2013 Miss. LEXIS 189 (Miss. May 2, 2013) Quivira Mining Co. v. United States Envtl. Protection Agency, 765 F. 2d 126 (10 Cir. 1985) Roberts v. Cameron-Brown Co., 556 F. 2d 356 (5 Cir. 1997) Smi v. Dearborn Financial Services, Inc., 982 F. 2d 976 (6 Cir. 1993) Stewart v. Berstein, 769 F. 2d 1088 (5 Cir. 1985) Tedford v. Dempsey, 427 So. 2d 410 (Miss. 1983) st Town of Norfolk v. United States Army Corps of Engineers, 968 F. 2d 1438 (1 Cir. 1992) Transam. Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979) Tunica County v. Bell, 13 So. 3d (Miss. 2009) , 22, 26, 27 TVA Ash Spill Litig., 80 Fed. R. Evid. Serv. (Callaghan), 2012 U.S. Dist. LEXIS (E.D. Tenn. Aug. 23, 2012) Umatila Waterquality Protective Assoc n v. Smi Frozen Foods, Inc., 962 F. Supp (D. Org. 1997) United States v. GAF Corp., 389 F. Supp (S.D. Tex. 1975) Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F. 3d 962 (7 Cir. 1994) Virginia College, LLC v. Moore, 974 So. 2d 269 (Miss.Ct.App. 2008) Whaley v. Parson, 66 So. 3d 722 (Miss.Ct.App. 2011) Wright v. Lee County, 71 So. 3d 1246 (Miss.Ct.App. 2011) OTHER AUTHORITIES 40 C.F.R C.F.R , 33 Black s Law Dictionary, 9 Edition Dailey, May 30, 2003, AG Op , 2003, Miss. AG LEXIS

7 Frequently Asked Questions About Groundwater, Mississippi Department of Environmental Quality Leet, L. Don., 1982, Physical Geology, 6 Edition, Englewood Cliffs, N.J.: Prentiss Hall Perkins, March 5, 1992, AG Op., 1992 AG LEXIS W.P.C A(4) W.P.C A (5) W.P.C A (18) , 34 W.P.C A (19) , 35 W.P.C A (20) , 35 STATUTES 33 U.S.C. 1251, et seq , U.S.C.A , U.S.C.A. 1311(1995) , 19, 23, U.S.C.A U.S.C , 19, 29 Miss. Code Ann , 4, 5, 8, 9, 11, 12, 15, 16, 30 Miss. Code Ann , 10 Miss. Code Ann Miss. Code Ann , 10, 15 Miss. Code Ann , 27 Miss. Code Ann , 31, 32, 33 Miss. Code Ann , 24 Miss. Code Ann , 23, 26, 31, 32 Miss. Code Ann

8 Miss. Code Ann Miss. Code Ann , 25, 26 Miss. Code Ann , 26 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann

9 I. STATEMENT OF THE ISSUES A. Wheer or not e trial court properly held at Crum s claim arose out of e exercise or performance or failure to exercise or perform a discretionary function or duty, and, erefore, Corin is immune pursuant to Miss. Code Ann (1)(d). B. Wheer or not Crum s failure to raise provisions of e Federal Water Pollution Control Act and Mississippi Air and Water Pollution Control Law at e trial court level procedurally bars her from presenting ese arguments on appeal. C. Wheer or not Crum s judicial estoppel argument is barred from consideration on appeal, and, if not, applies to e facts alleged in e Complaint. Page 1 of 39

10 II. STATEMENT OF THE CASE Crum s negligence action arises out of alleged overflows of raw sewage into her residence on or about March 30, 2012 and May 7, (R. 6-7, R.E. 5-7). On April 23, 2013, twenty-four days after e first incident, Crum s moer, Donna Crum, notified e Mississippi Department of Environmental Quality ( MDEQ ) of e overflow. (R. 5, R.E. 4). Plaintiff attached numerous MDEQ investigation documents and reports to e Complaint. (R , R.E ). According to e MDEQ documents, MDEQ employee Lynn Burrell traveled to Corin, Mississippi eleven days after Donna Crum reported e incident, irty-five days after e incident itself, to investigate Ms. Crum s report. (R. 17, R.E. 16). Crum reported to Ms. Burrell at she came home e evening of March 30, 2012 to find her baroom tub and toilet overflowing wi waste-water. (Id.). Sometime after e March 30, 2012 incident and MDEQ s Feburary 4, 2012 investigation, Corin provided Crum wi a backflow prevention device for installation. (Id.). Crum had contacted a plumber about installation of e device, but, as of February 4, 2012 e device had not yet been installed. (Id.). Ms. Burrell s inspection revealed at e cause of e overflow might be root grow in e manhole at Crum s service line emptied into. (Id.). Ms. Burrell notified Billy Glover, a Corin employee, of is suspicion on Feburary 4, 2012 (e day of her trip to and investigation in Corin), which was a Friday. (Id.). Mr. Glover said at he would have someone check e manhole on Monday or Tuesday. (Id.). Ms. Burrell s inspection did not reveal any oer suspected cause of e May 30, 2012 overflow. (R ; R.E ). On e night of May 6-7, 2012 (e Sunday-Monday night after MDEQ s Friday, May 4 inspection), Crum s house experienced anoer sewage overflow. (Id.). On Monday, May 7, 2012, Crum notified MDEQ of is incident. (Id.). Ms. Burrell of MDEQ spoke to Billy Glover, Corin Page 2 of 39

11 employee, on Tuesday May 8, 2012 about e second incident. (Id.). Mr. Glover stated at e root ball at was suspected by Ms. Burrell to be e cause of e first overflow was removed on Monday, as he said it would be during eir phone conversation on Friday, May 4, (R. 18, R.E. 17). Mr. Glover told Ms. Burrell at he suspected a broken clean-out cap, misplaced manhole cover or hole in e line was allowing stormwater to enter e system. (R. 25; R.E. 24). He stated at he and anoer person were going to walk e line and looks for any obvious holes or broken fittings. (Id.). When asked if Corin would help wi e clean up, Mr. Glover said he would check into it. (R. 23; R.E. 22). On May 25, 2012, Ms. Burrell spoke to Mr. Glover again. (R. 18; R.E. 17 ). He stated at e cause of e overflows was a broken manhole cover. Mr. Glover stated at e manhole had been damaged while Corin was performing road-work, bush-hogging ditch banks. (R. 18, 26; R.E. 17, 25). Mr. Glover reported at e manhole cover was repaired. (R. 18; R.E. 17). The MDEQ investigation does not identify any statutory or regulatory violation related to e incidents alleged by Crum. (R ; R.E ). On one page of e ten-pages of MDEQ reports attached to e complaint, e statement The City is going to fix her home is provided. (R. 18; R.E. 17). Ms. Burrell did not specifically attribute at statement to Mr. Glover, but he was e primary Corin employee Burrell contacted about e overflows. (R ; R.E ). Crum filed her Complaint on October 3, (R. 6; R.E. 5). Crum alleged at e overflow was caused by improper maintenance of e Corin sewer system. (R. 8; R.E. 7). Crum alleged at Corin had a duty to maintain e sewer system in such a way at [Crum s] home is not flooded by e sewer system. (Id.). Crum alleged at Corin breached at duty by failing to maintain e sewer system causing e system to flood. (Id.). The Complaint does not allege any Page 3 of 39

12 statutory or regulatory violation. (R. 6-9; R.E. 5-8). Corin Moved to Dismiss e Complaint on November 2, 2012 asserting its immunity under e Mississippi Tort Claims Act, specifically, discretionary function immunity pursuant to Miss. Code. Ann (1)(d). (R ; R.E ). In Response to e Motion, Crum argued at MDEQ regulations required all persons operating a sewer system be trained and certified. (R ; R.E ). Crum en relied on alleged violations of e MDEQ s Wastewater Treatment Facilities Operations and Training Manual 5 Edition 2007" as evidence of lack of training and violation of an alleged duty of continuous and routine inspection of e system. (Id.). Crum argued at e Operations and Training Manual created ministerial duties for which Corin was not immune. (R ; R.E ). Crum also asserted at Federal regulations are incorporated into e MDEQ regulations and en alleged a violation of Federal regulation, wiout identifying any specific violation. (R ; R.E ). Corin Replied to e response asserting at, according to its own terms, e Operations and Training Manual relied on by e plaintiff was not intended to create legal duties or requirements. (R ; R.E ). Raer, e Training Manual was intended to identify goals and principles. (Id.). The goals and principles of e Training Manual do not establish time, place and manner ministerial duties. (Id.). The trial court granted Corin s Motion to Dismiss finding at e maintenance and operation of its sewage system was a discretionary function and at Corin was entitled to immunity under Miss. Code Ann (1)(d). (R ; R.E ). Page 4 of 39

13 III. SUMMARY OF THE ARGUMENT The overarching eme of Crum s appeal is her untimely attempt to turn a civil claim for damages into a water pollution case in an effort to avoid e trial court s correct conclusion at Crum s claims arise out of e performance of discretionary functions and, erefore Corin is immune under e Mississippi Tort Claims Act (MTCA). Governmental entities are immune from claims arising out of e performance of a discretionary function or duty. Miss. Code Ann (1)(d). This Court employs e publicpolicy function test when determining wheer a function of a governmental entity or its employee is discretionary. Under is test, e Court must answer two questions: (1) Does e function involve an element of choice or judgment; and if so, (2) did at choice or judgment involve social, economic, or political policy? Regarding e first part of e public-policy function test (element of choice or judgment), e statutes at govern municipal sewage systems in Mississippi do not positively impose any maintenance or repair duties at are required to be performed at a specific time, place or manner. See Miss. Code Ann , et seq.; There is no maintenance or repair duty positively imposed by law at removes Corin s choice or judgment. To e contrary, courts interpreting auority granted by ese sections have held at any maintenance or repair obligation imposed is a discretionary function entitled to immunity under Section (1)(d). Regarding e second prong of e public-policy function test (implication of social, economic or political policy), is Court in Fortenberry v. City of Jackson, 71 So. 2d 1196, 1202 (Miss. 2011) held at operating and maintaining sewage systems clearly implicate, specifically, bo economic and social policy. Also, e Fortenberry Court held at e operation and maintenance of a municipal sewage system met bo parts of e public-policy function test. The Page 5 of 39

14 City s decision [in operating and maintaining its sewage system] is discretionary because it meets bo prongs of e public-policy test. Id. at The trial court correctly applied e public-function policy test and Fortenberry and held at Crum s claims arose out of e performance of a discretionary function. To put e trial court in error, Crum argues at public policy was not involved because operating a bush hog does not involve policy decisions. The error in Crum s argument is at she is analyzing e act performed and not e function performed. The language of Section (1)(d) requires us to look at e function performed not e acts at are committed in furerance of at function to determine wheer [discretionary function] immunity exists. Little v. MDOT, 129 So. 3d 132, 136 (Miss. 2013) (emphasis in original). In Little, where identifying and removing dead trees from e highway right-of-way was e alleged negligence, e court held at e function performed was right-of-way maintenance. Herein, e act is bushhogging e right-of-way, e function is rightof-way maintenance which is a discretionary function for which Corin is immune. Corin attempts, for e first time on appeal, to argue at her claims do not arise out of discretionary functions because her claims arise out of duties to avoid water pollution set for e in e Federal Water Pollution Control Act and e Mississippi Air and Water Pollution Control Law. This Court will not entertain arguments made for e first time on appeal. Chantey Music Publ g, Inc. v. Malaco, Inc. 915 So. 2d 1052, 1060 (Miss. 2005). Furer, ese water protection acts do not create actionable duties at can serve as e basis for a private cause of action for damages. Therefore, it is legally impossible for Crum s claims to arise out of ese water protection duties, and wheer or not ese duties are discretionary or ministerial is irrelevant to Crum s claims. Moreover, Crum has not alleged a violation of eier e federal or state water protection acts. Crum has not alleged any water pollution, which is understandable because her case was and is not Page 6 of 39

15 a water pollution case despite her best efforts to turn it into one on appeal. Finally, Crum s argument at Corin is judicially estopped from asserting MTCA immunities must be rejected because it is raised for e first time on appeal and judicial estoppel only applies in judicial forums where e Court has accepted and relied on a party s statement. These necessary facts are not alleged, and do not exist. Again, e all-embracing eme of e appeal is Crum s quest for a statutorily, imposed ministerial duty to avoid e dispositive impact of e public-policy function test and Fortenberry. Unfortunately for all parties, and e Court, responding to Crum s arguments requires an examination of federal and state environmental regulation to conclusively prove what anyone reading e record would conclude based on common sense is is not a water pollution case. Page 7 of 39

16 IV. ARGUMENT A. The Trial Court s Dismissal Based on Discretionary Function Immunity Must Be Affirmed. 1. The Operation and Maintenance of a Municipal Sewage System is a Discretionary Function. This appeal begins and ends wi e application of e public-policy function test for discretionary function immunity and e controlling precedent of Fortenberry v. City of Jackson, 71 So. 2d 1196 (Miss. 2011), a case wi strikingly similar facts and controlling law. In Fortenberry, e Court held at e operation and maintenance of a municipal sewage system was a discretionary 1 function entitled to immunity under e principles of e public-policy function test. Id. at Crum bends over backwards to avoid e application and dispositive impact of e public-policy function test and Fortenberry. However, e trial court s conclusion at Corin is immune under Miss. Code Ann (1)(d) must be affirmed. It cannot be disputed at Corin is a governmental entity to which e provisions of e MTCA apply. The Court eloquently explained e MTCA s limited waiver of sovereign immunity in Miss. Dep t of Mental Heal v. Ellisville State School, 45 So. 3d 656, 658 (Miss. 2010): The MTCA begins by declaring: The immunity of e state and its political subdivisions... is and always has been e law of is state... Then, having established at e state enjoys sovereign immunity, The MTCA up to an established monetary limit waives e immunity. Finally, having declared sovereign immunity and en waiving it, e MTCA reclaims immunity for twenty-five categories of actions or inactions, one of which is e exercise or performance or e failure to exercise or perform a discretionary function or duty. (internal citations omitted). Specifically, e statute at reclaims immunity for discretionary 1 The City s decision [of operating and maintaining its sewage system] is discretionary because it meets bo prongs of e public-policy test. Fortenberry, 71 So. 2d at The City s decision is discretionary under e principles of e public-policy function test... Id. Page 8 of 39

17 functions provides: (1) A governmental entity and its employees acting wiin e course and scope of eir employment and duty should not be liable for any claim;... (d) Based upon e exercise or performance or e failure to exercise or perform a discretionary function or duty on e part of a governmental entity or employee ereof, wheer or not e discretion be abused; Miss. Code Ann (1)(d). Thus, e MTCA requires at e Court first determine wheer Crum s lawsuit is based upon e exercise or performance, or non-performance, of a discretionary function or duty. Ellisville State School, 45 So. 3d at 658. The lone eory of liability asserted in e Complaint is at Corin failed to properly 2 maintain its sewage system. (R. 8, R.E. 7 ). In Fortenberry, e Mississippi Supreme Court held at e operation and maintenance of a municipal sewer system was a discretionary function and neier state nor federal law caused at function to be ministerial. Fortenberry, 71 So. 3d at In examining discretionary function immunity, e Fortenberry Court provided e blackletter principles of e immunity: A duty is discretionary when it is not imposed by law and depends upon e judgment or choice of e government entity or its employee. See Miss. Dep t of Mental Heal v. Hall, 936 So. 2d 917, (Miss. 2006); Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (Miss. 1935). However, a duty is ministerial if it positively imposed by law and required to be performed at [a] specific time and place, removing an officer s or entity s choice or judgment. Covington County Sch. Dist. v. Magee, 29 So. 3d 1, 5 (Miss. 2010) (quoting L.W. v. McComb Separate Mun. Sch. Dist, 754 So. 2d 1136, 1141 (Miss. 1999). This Court applies e public-policy function test to determine if a function is discretionary. Id. 2 Crum alleges at e overflow was caused by improper maintenance of e Corin sewer system and at Corin had a duty to maintain e sewer system in such a way at [Chum s] home is not flooded by e sewer. (R. 8, R.E. 7). Page 9 of 39

18 at Under is test, e Court must answer two questions: (1) Does e function involve an element of choice or judgment; (2) did at choice or judgment involve social, economic or political policy. Id. At e time of Fortenberry and at present, e public-policy function test determines e application of discretionary function immunity, and e Fortenberry Court held at e City s decision [in operating and maintaining its sewage system] is discretionary because it meets bo prongs of e public-policy test. Fortenberry, 71 So. 2d at Regarding e first part of e public-policy function test (element of choice or judgment), e statutes at govern municipally owned sewage systems in Mississippi do not positively impose any maintenance or repair duties at are required to be performed at a specific time, place or manner. See Miss. Code Ann , et seq; There is no maintenance or repair duty positively imposed by law and required to be performed at a specific time and place removing Corin s choice or judgment. Moreover, e statutory provisions auorizing e operation of municipal sewage systems are written in discretionary, not ministerial, terms. Municipalities are entities created by statute and have only ose powers and auorities granted by statute. City of Ocean Springs v. Homebuilders Ass n of Miss., 932 So. 2d 44, 53 (Miss. 2006). Section provides municipalities e statutory auority as to creation, maintenance and operation of public utility systems, including sewage systems. See (title) and (b) (defining system to include sewage systems). Section (d) gives municipalities e power to own, operate and maintain sewage systems but it does not impose a ministerial duty of repair and maintenance, raer, it leaves repair and maintenance to e discretion of e municipality. See, e.g., City of Natchez v. De La Barre, 2012-CA COA ( 13) (Miss.Ct.App. Mar. 25, 2014); Hankins v. City of Cleveland, 90 So. 3d 88, 95 ( 12) (Miss.Ct.App. 2011). Section also gives municipalities e auority Page 10 of 39

19 to operate sewers. This statute has been interpreted as providing auority to repair and maintain e municipal improvements identified but not creating ministerial repair and maintenance duties. City of Natchez, supra, 13; Hankins, 90 So. 3d at 95. The repair and maintenance of municipal improvements auorized by Section has been found to be discretionary functions. Id. Therefore, Corin s decisions relating to operation and maintenance of its sewage systems involves choice and judgment which satisfies e first prong of e public-policy function test. Id.; Fortenberry, 71 So. 2d. at 1204 (holding bo prongs satisfied). 3 Regarding e second prong of e public-policy function test (implication of social, economic or political policy), e Fortenberry Court held at operating and maintaining sewage systems clearly implicate, specifically, bo economic and social policy. Fortenberry, 71 So. 3d at The Court found at operating and maintaining a sewage system affected social policy because e City s sewage must be removed to promote human welfare in e City. Id. at Likewise, e operation and maintenance of a sewage system relates to economic policy because 4 Corin must have e funds necessary to operate and maintain its sewage system. Id. Accordingly, Corin s decisions involve social and economic policy satisfying e second prong of e publicpolicy function test. 3 The Fortenberry Court discussed its opinion in City of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60 (Miss. 2005), in which e Court affirmed e trial court s decision at e dangerous condition immunity of section (1)(v) did not apply to e facts presented. In Internal Engine, e issue of discretionary function immunity was not presented nor addressed on appeal. 4 The Court noted at [m]unicipalities regularly are faced wi e tough decision to maintain and repair eir sewage systems or replace e systems and incur higher costs. In eir attempts to be stewards of taxpayer dollars and sewage fees, municipalities often are forced to use eir discretion in deciding to repair or replace eir sewer lines. Id. Corin is faced wi e same tough decisions at confront all municipalities wi regard to eir budgets and ability to maintain, inspect, repair or replace its sewage system. Page 11 of 39

20 The trial court correctly analyzed e public-policy function test and applied Fortenberry as 5 set for above and held at Corin was immune under Section (1)(d). Crum, for e first time on appeal, argues at her claim arises out of alleged ministerial duties to prevent water 6 pollution set for in state and federal water pollution statutes. Crum is on e understandable, yet futile, quest to find an applicable, statutorily-imposed ministerial duty at defeats immunity. Unfortunately, Crum s argument is procedurally barred and e water pollution statutes do not create any actionable, private duties. Also, in Fortenberry, e Court held at e water pollution statutes do not apply to e facts alleged, erein and e case at bar. The Fortenberry Court held at federal law did not transform e City of Jackson s decision on how to operate its sewage system into a ministerial function. Id. at The Court noted at e Federal Water Pollution Control Act made it unlawful to discharge sewage into e environment. Id. at (citing 33 USCA 1311(a) (1995) and 1362(6) (2008)). However, e Court concluded at e Act is a set of goals and policies of Congress, and it does not provide a set of standards at a municipality must follow in operating and maintaining its sewage system. Id. The Court found at e Act deferr[ed] to e states and eir respective municipalities in deciding how to prevent and eliminate pollution and en turned its analysis to Mississippi environmental law. Id. The Fortenberry Court recognized e fact at Mississippi had established e Mississippi Department of Environmental Quality ( MDEQ ) to monitor pollution but found no allegation of 5 See also Craig v. City of Yazoo City, 2013 U.S. Dist. LEXIS , *12-13 (S.D. Miss. Oct. 28, 2013) (prioritizing and responding to citizen complaints about municipal services is a discretionary function entitled to immunity under e MTCA). 6 See Complaint (R. 6-9; R.E. 5-8) and Response to Motion to Dismiss (R ; R.E ) neier of which contain any allegation at Corin polluted water. Page 12 of 39

21 any state statutory or regulatory violation. Id. at The Court summarized e operative allegations as follows: The plaintiffs have made no allegations at e City was dispersing pollutants into e environment. Here, an aging sewer line backed up due to excessive rainwater and flooded two homes. Id. In Fortenberry, e flooding occurred on two occasions, once at two different homes. Id. at One of e homes flooded to a dep of one foot. Id. Even in light of e volume of flooding at occurred in Fortenberry, e Court found no allegation of environmental pollution nor statutory or regulatory violation. Id. at Almost exactly e same allegations are made herein. Crum alleges flooding on two occasions. (R. 6-7, 18; R.E. 5-6, 17). Crum alleges her home flooded to a dep of one foot. (R. 18, R.E. 17). These nearly identical facts mandate e same conclusion ere is no allegation of dispersing pollutants into e environment nor of any violation of state or federal regulation or law. Fortenberry, 71 So. 2d at Like Fortenberry, is is not an air or water pollution case. This is a civil, negligence suit for damages. The operation and maintenance of a municipal sewage system is a discretionary function, Corin is erefore immune and e trial court s dismissal wi prejudice must be affirmed. Before turning to e water pollution provisions now argued on appeal, Corin addresses Crum s attempt to avoid Fortenberry s explicit holding at operating and maintaining a sewage system is an exercise of public policy. Id. at Discretionary Function Immunity Applies to All Functions Involved. According to statements contained in e MDEQ documents attached to e Complaint, e flooding of Crum s home was caused by a broken manhole cover. (R. 18, R.E. 17). The manhole cover was damaged while Corin was performing road work, maintaining ditch banks. (R. 18, 26, R.E. 17, 25). The damaged manhole cover allowed rain to enter e system and back-up into Crum s Page 13 of 39

22 residence. (R. 18, R.E. 17). On appeal after Rule 12(b)(6) dismissal, ese facts are assumed to be true. While Crum s Complaint bases all allegations of fault on sewage system operation and maintenance (R. 6-9; R.E. 5-8 ), she argues at e damaged manhole cover should not be analyzed as sewage system operation and maintenance for discretionary function immunity analysis. Crum contends at operating a bushhog is e function to be analyzed. From is premise, Crum argues at e applicable function does not involve public policy, and, erefore, e second prong of e public-function policy test for discretionary function immunity is not satisfied. Crum s argument must be rejected under e recent decision in Little v. MDOT, 129 So. 3d 132 (Miss. 2013). The Little Court stated, The language of Section (1)(d) requires us to look at e function performed not e acts at are committed in furerance of at function to determine wheer [discretionary function] immunity exists. Little, 129 So. 3d at 136 (emphasis in original). Id. In Little, where e allegation of negligence was e failure to identify and remove dead trees from e right-of-way, e Court held at e function at issue was right-of-way maintenance. Id. The decision of wheer to cut down a tree is not a function, e Court held, but, raer, it is an act in furerance of e function of maintaining e right-of-way. Id. The function at issue in Little 7 was defined as right-of-way maintenance. The function involved herein can be reasonably placed in two categories. The initial alleged act of damaging e manhole cover while bush hogging e side of e road was performed in furerance of e function of right-of-way maintenance. The subsequent act(s), e alleged failure to identify and repair e damaged manhole, were performed in furerance of e function of 7 Because Miss. Code Ann positively imposed duties on MDOT regarding right-of-way maintenance, e Little Court found e duty to be ministerial. Little, 129 So. 3d at 138 ( 11). Page 14 of 39

23 operating and maintain e sewage system. Bo functions are discretionary functions for which Corin is immune. The application of discretionary function immunity to operation and maintenance of a municipal sewage system is fully briefed in e previous section. To e extent Crum s claim arises out of acts in furerance of is function, discretionary function immunity applies (1)(d). 8 The function of right-of-way maintenance is also a discretionary function entitled to immunity. In Little, e Court reversed e longstanding law at MDOT s duty of right-of-way maintenance was discretionary based on a statutory directive at made e duty ministerial. Little, 129 So. 3d at 138 ( 11). The statutory directive on which e Little decision was based does not apply to municipal right-of-way maintenance, and e longstanding Mississippi law at right-of-way maintenance is a discretionary function controls and mandates at, to e extent at Crum s claims arise out of any acts in furerance of right-of-way maintenance, Corin is immune. Wright v. Lee County, 71 So. 3d 1246, (Miss.Ct.App. 2011) (local entity road maintenance is a discretionary function); Farris v. Miss Transp. Comm n, 63 So. 3d 1241, (Miss.Ct.App. 2011), overruled by oer grounds by Little (where road maintenance and repair is discretionary, right-of-way maintenance and repair is too). Section gives municipalities e auority to construct, repair and maintain streets. Section auority extends to e street right-of-way. Dailey, May 30, 2003, A.G. Op , 2003 Miss. AG LEXIS 430. See also Miss. Code Ann (a); (1)(c); (2)(d) (defining street as not only e traveled portion of e property, but e entire wid of e dedicated property including e right-of-way). Section has been interpreted as giving 8 A governmental entity is immune from claims arising out of e performance or non-performance of discretionary functions. Miss. Code Ann (1)(d). Page 15 of 39

24 municipalities auority over municipal improvements but not imposing a duty of maintenance and repair. See, e.g., City of Natchez v. De La Barre, 2012-CA COA ( 13) (Miss.Ct.App. Mar. 9 25, 2014); Hankins v. City of Cleveland, 90 So. 3d 88, 95 ( 12) (Miss.Ct.App. 2011). These decisions furer find at maintenance and repair of municipal improvements auorized by Section are discretionary functions. Id. Therefore, e function of right-of-way maintenance is discretionary bo under e statutory structure auorizing e function and e long line of cases holding at right-of-way maintenance is a discretionary function. It is e function, not e act, to which e MTCA grants or denies immunity. Little, 129 So. 3d at 138 ( 12) (emphasis in original). Crum s argument analyzes e act, not e function. Proper application of e public-function policy test, under e guidance of Little, establishes at bo functions involved herein operation and maintenance of a sewage system and right-of-way maintenance are discretionary functions, and Corin is entitled to immunity under Section (1)(d). B. The Court Cannot Consider Arguments Made for e First Time on Appeal. On appeal, Crum argues against discretionary function immunity on different eories an ose asserted at e trial court level. Even when applying e de novo standard of review, where a party asserts different eories at e trial court level and on appeal, e Appellate Court will not consider e issues raised for e first time on appeal. Germany v. Denbury Onshore, LLC, 984 So. 2d 270, (Miss. 2008). The Mississippi Supreme Court has consistency stated at it can only review issues decided 9 See also Little, 129 So. 3d at (holding ere is no distinction between right-of-way maintenance and road maintenance for discretionary function immunity analysis under statutes governing state highways). Page 16 of 39

25 by e trial court for error: The Supreme Court is a court of appeals, it has no original jurisdiction; it can only try questions at have been tried and passed upon by e court from which e appeal is taken. Whatever remedy appellant has is in e trial court, not in is court. This court can only pass on e question after e trial court has done so. Collins v. State, 159 So. 865 (1935); Booker v. State, 5 So. 3d 411, 416 (Miss. 2008); Pascagoula Sch. Dist. v. Tucker, 91 So. 3d 598, 612 (Miss. 2012). Stated differently, but to e same effect, it is inappropriate to review matters which a trial court has not first resolved. Virginia College, LLC v. Moore, 974 So. 2d 269, 274 (Miss.Ct.App. 2008) (applying de novo standard of review). Similarly, is Court has held it will not entertain arguments made for e first time on appeal. Chantey Music Publ g, Inc. v. Malaco, Inc. 915 So. 2d 1052, 1060 (Miss. 2005). One of e most fundamental and long established rules of law in Mississippi is at e Mississippi Supreme Court will not review matters on appeal at were not raised at e trial court level. In re Estate of Myers, 498 So. 2d 376, 378 (Miss. 1986) (quoting Adams v. City of Clarksdale, 48 So. 242 (Miss. 1909)). When reviewing a trial court s grant of a Motion to Dismiss under de novo review, it is not proper for an appellate court to review an alleged error when e issue is raised for e first time on appeal. Durham v. Univ. of Miss., 966 So. 2d 832, 837 (Miss.Ct.App. 2007). The statutes and regulations argued on appeal were not tried and passed upon by e trial court. In Alexander v. Daniel, 904 So. 2d 172, 183 (Miss. 2005), is Court held at plaintiff s failure to raise a statutory basis for his claim at e trial court level prevented e Court from considering e application and effect of e statute on appeal. In Boyle v. Miss. State Oil & Gas Board, 794 So. 2d 149 (Miss. 2001), while e plaintiffs cited one of e two environmental statutes and OSHA regulations prior to appeal, e auorities were cited supporting arguments and issues oer an e issue raised for e first time on appeal. Page 17 of 39

26 Id. at 153. This Court found at it could not hear e new arguments and issues for e first time on appeal. Id. In her Complaint, Crum alleged at e overflow was caused by improper maintenance of e Corin sewer system. (R. 8; R.E. 7). Plaintiff alleged at Corin had a duty to maintain e sewer system in such a way at [Crum s] home is not flooded by e sewer system. (Id.). Plaintiff alleged at Corin breached at duty by failing to maintain e sewer system causing e system to flood. (Id.). The Complaint does not allege any statutory or regulatory violation. (R. 6-9; R.E. 5-8). In Response to Corin s Motion to Dismiss, plaintiffs generally described e wastewater permitting process and e general fact at e MDEQ permit board must establish permit conditions and limitations pursuant to Federal Law. (R ; R.E ). Relying on Mississippi s Wastewater Permit Regulations, plaintiff argued at all persons operating a sewer system be trained and certified. (R. 66; R.E. 41). Plaintiff en argued at e MDEQ s Wastewater Treatment Facilities Operations and Training Manual 5 Edition 2007" created a ministerial duty of 10 continuous and routine inspection for which Corin was not immune. (Id.). Restated, e argument presented to e trial court was is: Federal law requires e state to establish permit conditions and limitations. Those conditions and limitations are set for in e State regulations. The State regulations require at operators be trained and certified, and e Training Manual requires continuous and routine inspection. Therefore, Federal law, rough e 10 Corin Replied to e response asserting at, according to its own terms, e Operations and Training Manual relied on by e plaintiff was not intended to create legal duties or requirements. (R ; R.E ). Raer, e Training Manual was intended to identify goals and principles. (Id.). The goals and principles of e Training Manual do not establish time, place and manner ministerial duties. (Id.). Page 18 of 39

27 11 State regulations and e Training Manual, imposes a ministerial inspection duty. Crum now argues at Corin violated The Federal Water Pollution Control Act, 33 U.S.C.A. 1311(a)(1995) and 1362(2008), by unlawfully discharging sewage into e environment. Crum also asserts a violation of e Mississippi Air and Water Pollution Control Law by causing pollution to any waters of e state or placing waste in a location likely to cause pollution to any waters to e state and/or modifying or operating a sewage system in violation of permit. Miss. Code 12 Ann (2). Crum did not allege ese statutory violations at e trial court level. (R. 6-9, 64-68; R.E. 5-8, 39-43). Additionally, Crum now asserts at Corin violated several wastewater permit regulations. These newly-asserted regulations are: continuous operation, maintenance and repair to achieve compliance wi e wastewater permit (WPC A (18)); reasonable steps to minimize or prevent discharge or sludge use in violation of e permit (WPC A (19)); and avoidance of a bypass 13 (an intentional diversion of waste) (1.1.4.A (20)). These regulations were not raised in e Complaint (R.6-9; R.E. 5-8). Alough ese regulations were attached to Crum s Response to Corin s Motion to Dismiss ( R , R.E ), Crum did not cite ese regulations in e body of e Response (R ; R.E ) nor oerwise raise ese issues to be decided by e trial court. Certainly ere was no argument at Crum s claim arose out of ese regulatory duties, which is e argument Crum raises for e first time on appeal. 11 Crum does not assert is argument on appeal and has apparently abandoned it. 12 As set for herein, ese statutes do not create a private cause of action, and, in any event, Corin did not violate ese statutes wi regard to e facts alleged in e Complaint. 13 As set for herein, ese regulations do not create a private cause of action, and, in any event, Corin did not violate ese regulations wi regard to e facts alleged in e Complaint. Page 19 of 39

28 In Alexander and Boyle, is Court held at statutory and regulatory issues not raised at e trial court level would not be heard for e first time on appeal. Where an issue is not specifically raised in e lower court, is Court will not address e issue for e first time on appeal. Bender v. Meridian Mobile Home Park, 636 So. 2d 385, 389 (Miss. 1994). Where e record does not reflect at e specific issue asserted on appeal was raised at e trial court level, e Supreme Court will not address it on appeal. In re Estate of Myers, 498 So. 2d at 378. In Germany v. Denbury Onshore, LLC, 984 So. 2d 270 (Miss. 2008), e case turned on e element of damages. Id. at On appeal, plaintiffs erein argued a different eory, and e Court held at is eory, argued for e first time on appeal, could not be considered. Id. The present matter turns on e element of duty (wheer e applicable duty is discretionary or ministerial). Like e plaintiff in Germany, Crum now asserts a new, different eory, one at cannot be considered on appeal. Restated, at e trial court level, Crum asserted at e Training Manual imposed a ministerial inspection duty. On appeal, Crum argues at water conservation provisions impose a ministerial duty to prevent any discharge of pollutants. These are two entirely different arguments, e latter was not raised at e trial court level, and e trial court did rule on at issue. Therefore, is issue is procedurally barred. See Coleman & Coleman Enterprises, Inc. v. Waller Funeral Home, 106 So. 3d 309, (Miss. 2012) ( These arguments were never properly before e trial court and should not be addressed by is Court. ); In re Estate of Myers, 498 So. 2d 376, (Miss. 1986) (finding issue not raised before trial court procedurally barred). C. The Water Protection Statutes Do Not Create Private Cause of Action for Damages. In e event at is Court considers Crum s new water pollution eory, e first question Page 20 of 39

29 at must be addressed is wheer or not a private cause of action can be based on e alleged violation of ese statutes and e regulations promulgated under em. This Court s decisions in Doe v. Miss. Dep t of Corrections, 849 So. 2d 350 (Miss. 2003) and Tunica County v. Bell, 13 So. 3d (Miss. 2009), while not dealing wi e statutes at issue herein, provide e basis for e unavoidable conclusion at neier federal or state water pollution statutes create a private cause of action, and e trial court s dismissal must be affirmed. In Doe, e court stated at e first step in analyzing plaintiff s negligence claims was to determine wheer a private right of action could be brought under e statute allegedly violated. Doe, 849 So. 2d at 355. Likewise, in Tunica County, e Court first addressed wheer e statute on which plaintiffs claims were based established a private right of action before considering wheer or not e statute was violated or wheer or not e statute created ministerial duties. Tunica County, 13 So.3d at 829. The mere fact at a statute was violated will not support a claim where no private cause of action exists. Tunica County, 13 So. 3d at 829. Clearly, establishing a private right of action is e first, and a required, step in maintaining tort action based on an alleged statutory violation. 14 In Doe, is Court, adopting e analysis of a Wisconsin district court, instructed at in 14 In Allyn v. Wortman, 725 So. 2d 94 (Miss. 1998), e Supreme Court refused to invent a private right of action out of Miss. Code Ann , a statute modeled after e Securities Exchange Act of 1934 and dealing wi investor fraud. The Court held at because ere is no express provision for an individual cause of action or for private damages in e Code regarding a violation of , e plaintiff was wiout recourse under at statute. See also Moore v. Mem l Hosp. of Gulfport, 825 So. 2d 658, (Miss. 2002) (finding no private right of action existed in language of State Board of Pharmacy regulations); Transam. Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, (1979) ( what must ultimately be determined is wheer Congress intended to create e private remedy asserted when ascertaining e existence of a private right of action); Gray v. Beverly Rehabilitation Services, Inc., 261 F. Supp. 2d 652, (S.D.Miss. 2003) (finding plaintiffs cause of action failed as a matter of law because ere was no express or implied private cause of action created by nursing home administrator licensing requirements). Page 21 of 39