HUMPHRIES v. PEARLWOOD APARTMENTS PARTNERSHIP
| Docket Number: | 2009-CA-01586-COA Linked Case(s): 2009-CA-01586-COA ; 2009-CT-01586-SCT ; 2009-CT-01586-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-25-2011 Opinion Author: Chief Judge King Holding: Affirmed. |
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| Additional Case Information: |
Topic: Property damage - Statute of limitations - Continuing tort - Motion to amend |
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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: | Property damage - Statute of limitations - Continuing tort - Motion to amend |
| Summary of the Facts: | Angela Humphries and Kevin Fromme sued Pearlwood Apartments Partnership; Calhoun Development, Incorporated; Mac-Re, LLC; and Calhoun Property Management, Incorporated, alleging that the construction and maintenance of the apartment complex caused flooding and damage to their property. The circuit court granted Pearlwood’s motion for summary judgment, finding that Humphries’s and Fromme’s claim was time-barred. Humphries and Fromme appeal. |
| Summary of Opinion Analysis: | Humphries and Fromme argue that the trial court erred by finding that their claim is time-barred, arguing that the flooding caused by the construction of Pearlwood is a continuing tort that tolled the statute of limitations. Humphries and Fromme also argue that Pearlwood failed to provide proper maintenance of its retention pond, storm drains, and curb inlets, which caused more flooding and damage to their property. A ‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation. Thus, the continuing-tort doctrine will not be applicable where the harm results from one wrongful act or omission. In their complaint, Humphries and Fromme alleged that Pearlwood negligently constructed and maintained its property, which disrupted the natural flow of rain water and caused their property to flood. In their response to the motion for summary judgment, Humphries and Fromme stated that after the October 2002 flood, they learned from neighbors that the flooding had begun after Pearlwood removed trees to build the apartment complex. The construction of the apartment complex was one event, not a repeated action. The pleadings and depositions show that Humphries and Fromme knew as early as October 2002 that Pearlwood could have been responsible for the flooding. Thus, the statute of limitations began to run at this time. Because Humphries and Fromme failed to file their lawsuit within three years of this date, their claim is barred by the statute of limitations. Humphries and Fromme filed a motion to amend their complaint to allege that, after this lawsuit was filed, Pearlwood failed to provide proper maintenance of its retention pond, which had caused additional flooding and damage to their property. The trial court did not rule on this motion. There is no evidence that Humphries and Fromme brought their motion back to the trial court’s attention. As the movants, it was Humphries’s and Fromme’s duty to obtain a ruling on the motion and failing to do so constitutes an abandonment of the motion. |
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