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Estate of Spiegel v. Western Surety Co.8/9/2005
e months after he had already filed his complaint. This is because the notice of claim is dated September 25, 2003, and the complaint was filed on December 23, 2002. Mississippi Code Annotated § 11-46-11 requires that the notice of claim be delivered to the chief executive officer of the governmental entity against whom a claim is being made ninety days prior to the filing of a suit against the governmental entity. Spiegel clearly failed to comply with this requirement. We do note that the date of Spiegel's notice of claim is a little confusing at first glance. This is because, on the front page of the notice, the date listed is September 25, 2003; however, on all of the subsequent pages, the date listed is September 25, 2002. Upon closer inspection, however, it becomes apparent that the September 25, 2002 date listed on the notice must have been a typographical error. This is so because the notice references the bankruptcy court's decision, which was not rendered until September 30, 2002. Therefore, this particular notice could not have been served on September 25, 2002, since it references something that happened on September 30, 2002 (five days later).
. The record demonstrates that Spiegel did not comply with the notice of claim requirements of Mississippi Code Annotated § 11-46-11, and for that reason alone, his action against the circuit clerk and former circuit clerk could have been dismissed. Gale v. Thomas, 759 So. 2d 1150, 1158 ( ) (Miss. 1999) (holding that " he notice of claim requirement imposes a condition precedent to the right to maintain an action. . . . the timely filing of notice is a jurisdictional prerequisite."). However, the circuit court ultimately dismissed Spiegel's action as time-barred, finding the MTCA issues to be moot; in addition, Spiegel's main arguments here center around the question of the accrual of his cause of action and the applicability of the statute of limitations. Thus, we will go on to discuss the accrual and statute of limitations issues, but we note here that Spiegel did indeed fail to comply with the notice of claim requirements of the MTCA as to his action against the circuit clerk and former circuit clerk.
. Before speaking to the accrual of Spiegel's action, however, we must discuss one more aspect of Spiegel's argument on the nature of his claim. Spiegel has attempted to argue that his action was, in essence, a contract action against the sureties of the circuit clerk, not a direct negligence action against the circuit clerk. Because of this, he argues, the MTCA does not apply, because the MTCA has been held not to apply to contract actions. This was, in essence, the holding of City of Grenada v. Whitten Aviation, Inc., 755 So. 2d 1208, 1213 ( ) (MisS.Ct. App. 1999). While the very recent case of City of Jackson v. Est. of Stewart ex rel. Womack, 2003-CA-01413-SCT, 1999-IA-01527-SCT (May 12, 2005), has overruled City of Grenada v. Whitten Aviation, Inc. in part, the Est. of Stewart case did re-affirm the proposition that the MTCA does not apply to actions for breach of an express contract. Id. at ( -38). Thus, insofar as Spiegel's complaint states an action against the sureties and/or the circuit clerk and former circuit clerk for breach of an express contract, the MTCA does not apply. In addition, Spiegel's claims against Nicholson, a private attorney, do not fall under the MTCA.
. All of that is to say that we find Spiegel's complaint to have alleged more than one cause of action against more than one defendant. In particular, Spiegel's complaint alleges (1) a negligence claim against the circuit clerk and former circuit clerk for actions taken in their official capacity, (2) a contract claim on a public officials' bond, brought
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