1704 21st Ave., Ltd. v. City of Gulfport
| Docket Number: | 2007-CA-00228-COA Linked Case(s): 2007-CA-00228-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-29-2008 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Unjust enrichment - Tort Claims Act - Section 11-46-3(1) - Section 11-46-5 - Notice of claim - Section 11-46-11(1) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 01-05-2007 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: COUNTY COURT JURY RENDERED VERDICT IN FAVOR OF 1704 21ST AVENUE. CIRCUIT COURT REVERSED JURY AWARD ON APPEAL. Case Number: A2401-03-00501 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | 1704 21ST AVENUE, LTD. |
HARRY M. YOSTE |
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| Appellee: | CITY OF GULFPORT, MISSISSIPPI | MARGARET E. MURDOCK, JEFFREY S. BRUNI |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Unjust enrichment - Tort Claims Act - Section 11-46-3(1) - Section 11-46-5 - Notice of claim - Section 11-46-11(1) |
| Summary of the Facts: | 1704 21st Avenue, Ltd., owner of an apartment complex, sued the City of Gulfport for “money had and received” and unjust enrichment, seeking the refund of garbage fees it had paid to the City when it had already obtained separate garbage collection service through a private contractor. In the County Court of Harrison County, a jury returned a verdict in favor of 1704 21st Avenue, awarding it $18,342.72 in damages. The county court also awarded post-judgment interest. The City appealed, and the circuit court reversed and rendered the judgment of the county court. 1704 21st Avenue appeals. |
| Summary of Opinion Analysis: | The circuit court found the City immune from liability under the Tort Claims Act, because 1704 21st Avenue’s claims constituted an alleged wrongful act within the meaning of section 11-46-3(1). 1704 21st Avenue sued the City for two claims: “money had and received” and unjust enrichment. The City argues that as both claims are equitable in nature, and the Act covers any and all civil actions against a governmental entity, the two claims fall under the Act, and it does not matter if the causes of action cannot be categorized specifically as a “tort.” 1704 21st Avenue’s claims for money had and received and unjust enrichment fall under the category of implied-in-law contract causes of action as there was no real contract between the City and 1704 21st Avenue. There was merely an implied promise that if the City were to receive money to which it was not entitled, the City would return it. The Mississippi Supreme Court has determined the legislative intent of the Tort Claims Act includes implied contracts. Section 11-46-5 provides that even though immunity is granted under section 11-46-3, this immunity is waived for claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment. The supreme court has determined that the section 11-46-5 waiver applied to a breach of implied contract claim. As its claims come under the Act, 1704 21st Avenue was required to submit a “notice of claim” to the City ninety days prior to the institution of the suit as required by section 11-46-11(1). The circuit court correctly determined that 1704 21st Avenue failed to provide the City with such notice and its claims are statutorily barred. |
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