Croke v. Southgate Sewer Dist.
| Docket Number: | 2002-CA-00046-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-23-2003 Opinion Author: Smith, P.J. Holding: AFFIRMED ON DIRECT APPEAL AND CROSSAPPEAL |
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| Additional Case Information: |
Topic: Real property - Oral hearing - Summary judgment - Taking - Equal protection - Damages - Time to appeal Judge(s) Concurring: Pittman, C.J., Waller, Cobb, Carlson and Graves, JJ. Non Participating Judge(s): McRae, P.J., Diaz and Easley, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 01-04-2002 Appealed from: Lowndes County Chancery Court Judge: Dorothy W. Colom Disposition: Granted summary judgment in favor of the Appellee. Case Number: 99-0404 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Douglas Croke d/b/a Airbase Mobile Home Park |
VICTOR ISRAEL FLEITAS
DAVID C. OWEN |
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| Appellee: | Southgate Sewer District | H. J. DAVIDSON |
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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: | Real property - Oral hearing - Summary judgment - Taking - Equal protection - Damages - Time to appeal |
| Summary of the Facts: | Southgate Sewer District sued Douglas Croke d/b/a Airbase Mobile Home Park seeking a mandatory injunction ordering Croke to connect to its sewer system and damages. Croke filed a counterclaim, requesting the court to award him a reasonable amount in just compensation for the taking of his property to be used in connecting him to the sewer system. SSD filed a Motion for Summary Judgment which the court granted. The court assessed damages in the amount of $45,141.20 against Croke but later reduced the damages awarded to SSD to $27,084.72. Croke appeals, and SSD cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Oral hearing Croke argues that the court deprived him of a valuable right by granting SSD’s motion for summary judgment without conducting an oral hearing. Although the court commits error by failing to grant a hearing upon a motion for summary judgment, the error is harmless where there are no unresolved issues of material fact. Here, there is no reversible error by the chancellor in granting summary judgment without an oral hearing when the issues have been thoroughly presented in the briefs. Issue 2: Summary judgment Croke argues that the court erred in granting summary judgment because genuine issues of material fact exist. The first fact that Croke argues is a material issue, that being forced to connect to the sewer system is a taking without just compensation, was resolved in Lepre v. D'Iberville Water & Sewer Dist., 376 So.2d 191 (Miss. 1979), where the Court held that the goals to be achieved by enactments of statutes which compel property owners to connect are to protect the health of persons residing within congested areas and in order to assure the payment of bonds issued for such purposes. Forcing Croke to connect to the system does not constitute a taking. Although Croke argues that his equal protection rights will be violated if he is forced to pay the installation costs of the connection because other citizens were not forced to pay, from the inception of the plan until August 25, 1995, Croke could have benefitted from SSD connecting his property without cost. Croke was treated no differently than any other person who refused to allow SSD to connect him for free. Croke also argues that the court overlooked SSD’s violation of the Real Property Acquisition Policies law. This argument is without merit because no property was actually acquired from Croke for the project. Therefore, the court properly granted summary judgment. Issue 3: Damages Croke argues that the damages are wrong because this amounted to a de facto taking of his land and he should be compensated. Whether directly or indirectly, Croke has received the health and safety benefits of this project. The damages awarded represent what Croke would have paid had he followed the ordinance in the first place. Issue 4: Time to appeal SSD argues that Croke failed to correctly appeal the chancellor’s judgment and is now barred from raising the issue on appeal. The order for summary judgment was only a partial order for summary judgment. Because the final order was not filed until January 2, 2002, Croke’s appeal was timely filed. |
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