Bryan Saliba and Dennis Pierce v. City of Hattiesburg

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-00007-COA

BRYAN SALIBA AND DENNIS PIERCE APPELLANTS

v.

CITY OF HATTIESBURG APPELLEE

DATE OF JUDGMENT: 11/28/2023
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: SAMUEL STEVEN McHARD
CHARLES HUNTER SALAMONE
BRANDI DENTON GATEWOOD
PAUL MANION ANDERSON
ATTORNEYS FOR APPELLEE: R. LANE DOSSETT
L. CLARK HICKS JR.
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 10/28/2025
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Appellants Bryan Saliba and Dennis Pierce own a commercial property (the

“Westover” property) in Hattiesburg. In 2005, during construction of a hotel on adjacent

property, the sewer line servicing the Westover property was damaged. After a consultation

with the city engineer, Saliba and Pierce agreed for the City of Hattiesburg to install a

temporary holding tank serviced by the City, with a plan to eventually reconnect the line.

However, the sewer connection was not restored for nearly nine years. In 2013, while the

property was still relying on the holding tank, Saliba and Pierce filed suit against the City of

Hattiesburg, alleging physical damage to the parking lot from the heavy city trucks servicing
the tank and alleging economic damages to the value of the property. Within several months

of the filing of the complaint, the City restored a sewer connection to the property. The

circuit court granted the City’s motion for summary judgment, rejecting Saliba and Pierce’s

contract-based claims and claim of inverse condemnation. Agreeing with the judgment of the

circuit court, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. According to the depositions taken in advance of the summary judgment proceedings,

Saliba and Pierce acquired the Westover land in 1991 and constructed a commercial rental

property. When improving the property, they ran the sewer line diagonally across the

property to connect to a sewer main. Saliba and Pierce eventually sold part of the Westover

land for a hotel development. The sold parcel included the portion of the sewer line

connecting to the main. When initial grading work for the hotel project began in 2005,

construction equipment damaged the sewer line. It became apparent that the line would not

be functional for the duration of the construction. City engineer Bennie Sellers came to the

site and talked in person with Bryan Saliba. Sellers proposed that the City install and service

a temporary holding tank for the Westover property, with plans for the sewer connection to

be eventually restored.1 According to Saliba’s memory of the conversation, the reconnection

1
According to Sellers’ deposition, holding tanks are a common “best practice” used
temporarily at construction sites prior to a building’s connection to the main wastewater
management system. As distinguished from septic tanks, which discharge the wastewater
and have a more complex permitting system, holding tanks do not discharge the wastewater
and are instead pumped. Sellers indicated that during a particularly busy period of
development, the City had approximately twenty-five to thirty holding tanks used for periods

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would operate by “piggyback[ing]” onto the sewer line for the hotel, which would require

the reconnection to be done before the concrete for the hotel parking lot was poured.

According to Sellers’ deposition, the original placement of the sewer line had not been ideal,

and the plan to reconnect the line involved running an additional sewer line along the

adjoining city road and then connecting to the Westover property at a more practical point.2

¶3. Saliba and Pierce agreed to the installation of the holding tank, which was installed

in August 2005.3 The hotel project was completed without the Westover property sewer line

being reconnected to a main. When Saliba became aware that the sewer connection had not

been restored, he reached out to city officials asking for updates on the restoration of the

connection. These conversations continued for several years. According to the depositions,

various concerns delayed the project, including the City’s need to obtain bond financing for

expanded sewer development in the area.

¶4. Saliba and Pierce instigated this lawsuit in August 2013. The City completed a new

sewer connection for the property in January 2014. Saliba and Pierce received the following

letter from the City at the completion of the project:

Re: Saliba v. City of Hattiesburg – 126 Westover Drive (Plaza Drive

of months at a time.
2
According to Sellers, this plan was consistent with ongoing planned phased
development of the area.
3
Saliba and Pierce characterize this agreement as them doing a favor for the City
given the economic benefit brought by the hotel to the City. The City characterizes it as a
courtesy emergency response by the City for Saliba and Pierce’s benefit.

3
Sewer Project)

Dear Attorney McHard:

Please be advised that Mayor Dupree has requested that I provide you with an
update regarding the sewer project that affected your clients, Bryan Saliba and
Dennis Pierce, at 126 Westover Drive, Hattiesburg, MS 39402. Matthew
Boutwell, Director of Water and Sewer for the City of Hattiesburg, met with
me on the morning of Friday, January 24 to inform me that the sewer project
affecting 126 Westover Drive has been completed.

It is my understanding that the contractor has finished the project and has
removed the temporary holding tank that was placed by the City. Further, the
site restoration should have been completed last week if it was not prevented
by the weather. If the final inspection has not occurred then it should be
completed shortly by Shows, Dearman and Waits.

The City of Hattiesburg appreciates the cooperation of your clients and their
patience in assisting the City in its continuing effort to keep our city one of
America’s most livable small cities.

Sincerely,

Charles F. Lawrence, Jr.

¶5. Saliba and Pierce continued with the lawsuit, seeking recovery for alleged damage to

the Westover property’s driveway and parking lot, as well as damages related to a decreased

economic value of the property.4 The City filed a motion for summary judgment, arguing that

Saliba and Pierce’s claims were barred by the relevant statutes of limitations, that the city

4
They argued that the property was more difficult to rent because it was serviced by
a holding tank, rather than a sewer line, and that sewage backed up on occasion into the
building. In his deposition, Saliba was unable to represent that any tenant refused to lease
the building specifically because it was serviced by a holding tank. Saliba intended to offer
himself as a real estate expert at trial to testify that the building decreased in value due to the
holding tank. However, the record does not indicate that they attempted to sell the building
during the time period it lacked a sewer connection.

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engineer did not have the authority to enter into a contract on behalf of the City, and that

Saliba and Pierce did not have a valid inverse condemnation claim. Saliba and Pierce filed

a partial motion for summary judgment, arguing that the City violated per se the city

ordinance entitling properties to a sewer connection if certain conditions are met. The circuit

court denied Saliba and Pierce’s motion for partial summary judgment and granted the City’s

motion for summary judgment, agreeing with the City that Saliba and Pierce’s claims were

both time-barred and non-viable. Saliba and Pierce now appeal.

STANDARD OF REVIEW

¶6. A circuit court’s grant of summary judgment is reviewed de novo. Miss. Hub LLC v.

Baldwin, 358 So. 3d 305, 307 (¶6) (Miss. 2023). The circuit court’s grant of summary

judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Id.

(quoting Kinney v. S. Miss. Plan. & Dev. Dist. Inc., 202 So. 3d 187, 192 (¶13) (Miss. 2016));

accord M.R.C.P. 56(c).

DISCUSSION

I. Whether the City entered into a contract with Saliba and Pierce
through the representations of the city engineer.

¶7. Saliba and Pierce argue that Saliba’s on-site conversation with Bennie Sellers

operated to create a contract with the City, creating a contractual obligation for the City to

promptly reconnect the sewer line access to the Westover property at the completion of the

5
hotel construction project. Our law is clear that city representatives do not have the power

to contract on behalf of the City and that plaintiffs are imputed with this knowledge.

Groundworx LLC v. Blanton, 234 So. 3d 363, 370 (¶32) (Miss. 2017). “The law that [c]ity

representatives ‘can contract and render the [City] liable only by a valid order duly entered

upon its minutes’ is so clear and consistent that ‘all persons dealing with [the City] . . . are

chargeable with knowledge of this law[.]” Id. (quoting Colle Towing Co. v. Harrison County,

213 Miss. 442, 57 So. 2d 171, 172 (1952)).

¶8. In Groundworx, Groundworx contracted with the City of Hattiesburg to “design,

build, construct, own, operate and maintain the [wastewater] System for the purpose of

collecting, treating, storing, transporting, and disposal of the City’s Wastewater . . . .” Id. at

366 (¶6). However, the contract was conditioned on Groundworx obtaining $147 million in

financing. Id. at (¶7). The contract provided that if “Groundworx has not closed its

financing” by a certain date, “either party shall have the right to terminate this Agreement by

written notice to the other . . . .” Id. City representatives were present at a meeting between

Groundworx and a potential financier. Id. at (¶8). At the meeting, “the City officials talked

about raising sewer rates to show ‘the City’s commitment to bond financing the project.’”

Id. at (¶9). However, the mayor subsequently vetoed a resolution to raise the rates. Id. at

(¶10). When the City canceled the contract, Groundworx argued that after the initial contract

was formed, “the City entered an ‘express agreement’ to raise sewer rates so Groundworx

could obtain financing.” Id. at 367 (¶17).

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¶9. The Mississippi Supreme Court rejected this argument, holding that “the only way the

City could enter a binding contract to raise sewer rates is ‘by a valid order duly entered upon

its minutes.’” Id. at 370 (¶31) (quoting Colle Towing Co., 57 So. 2d at 172). The Court

further rejected Groundworx’s estoppel argument, stating that the promise by city

representatives “cannot reasonably be relied upon or enforced by Groundworx unless it is on

the City’s minutes. Thus, Groundworx has no estoppel claim.” Id.

¶10. To support their estoppel argument, Saliba and Pierce point to Mayor & Bd. of

Aldermen, City of Clinton v. Welch, 888 So. 2d 416 (Miss. 2004). In Welch, a family sought

and was granted approval to build a tree house in their front yard by a city zoning inspector.

Id. at 418 (¶4). Several years after this initial approval, and after the family spent $5,000

building the structure, the City found that the treehouse was in violation of the zoning

ordinance. Id. at (¶5). On appeal, the Mississippi Supreme Court held that in light of the

family’s reliance on the zoning official’s representations, the City was estopped from

enforcing the ordinance against the family.

¶11. Welch supports the general principle that in certain circumstances, estoppel can be

invoked against a municipality. Id. at 424 (¶43) (“Cities are not immune from the doctrine

of equitable estoppel.”). However, Welch does not address the question of contract formation

with a city. Saliba and Pierce suggest that the ruptured sewer presented an emergency

situation warranting an exception to the long-standing “minutes rule”—the rule that a

contract must be entered on the minutes to be enforceable. See Colle Towing Co., 57 So. 2d

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at 172. However, our courts have never recognized an emergency-based estoppel exception

to the requirement that contracts with a municipality must be spread on the minutes for

reliance on the promise of a city representative to be reasonable. Given the absence of a

contract with the City, the circuit court was correct to grant the City’s motion for summary

judgment on Saliba and Pierce’s contract-based claims.5

II. Whether the City committed a public taking sufficient to support
a claim of inverse condemnation.

¶12. Saliba and Pierce also brought a claim against the City for inverse condemnation of

their property. The circuit court held that Saliba and Pierce’s inverse condemnation claim

failed because there was no taking for public use, citing Sturdivant v. Coahoma County, 303

So. 3d 1124, 1129 (¶18) (Miss. Ct. App. 2020).6 Under the Mississippi Constitution,

“[p]rivate property shall not be taken or damaged for public use, except on due compensation

being first made to the owner or owners thereof, in a manner to be prescribed by law[.]”

5
The City also argues that the contract claims are barred by the applicable three-year
statute of limitations. Saliba and Pierce rebut that the Horton waiver doctrine applies to
preclude the City from relying on the affirmative statute of limitations defense. See MS
Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 179 (¶39) (Miss. 2006). They also argue that
estoppel operates to prelude reliance on the statute of limitations. See Ezell v. Williams, 724
So. 2d 396, 398 (¶7) (Miss. 1998). Given that we find no contract existed, we do not find
it necessary to analyze these arguments.
6
The circuit court also held that the inverse condemnation claim was barred by the
general three-year statute of limitations. See City of Tupelo v. O’Callaghan, 208 So. 3d 556,
558 (¶1) (Miss. 2017). Similar to the contract claim, Saliba and Pierce argue that the Horton
waiver doctrine precludes the City’s ability to rely on that affirmative defense. Because we
ultimately conclude there was no taking, we do not find it necessary to address the statute
of limitations or Horton waiver issue.

8
Miss. Const. art. 3, § 17 (1890). Inverse condemnation is “an action or eminent domain

proceeding initiated by the property owner, rather than the condemnor[.]” State v. Murphy,

202 So. 3d 1243, 1251 (¶15) (Miss. 2016) (quoting Jackson Mun. Airport Auth. v. Wright,

232 So. 2d 709, 713 (¶15) (Miss. 1970)). “An inverse condemnation claim involves (1) a

property owner seeking (2) compensation for (3) a private property taken for public use (4)

without proper condemnation proceedings.” Sturdivant, 303 So. 3d at 1129 (¶18). “Inverse

condemnation is appropriate only when private property is taken or damaged in respect to

public use or use for the public benefit.” Id. (quoting Kelley LLC v. Corinth Pub. Utils.

Com’n, 200 So. 3d 1107, 1118 (¶30) (Miss. Ct. App. 2016)).

¶13. In Sturdivant, the plaintiff argued that Coahoma County committed a taking for public

use when it damaged waterlines to her property during a road-widening project. Id. at 1128

(¶10). We held that “Sturdivant’s access to water for her property does not benefit the public.

Further[,] Coahoma County’s damage to the water line was not done for any public good.”

Id. at 1131 (¶23).7 Here, the damage to the sewer line servicing the Westover property was

done by third-party non-municipal actors on the private property that Saliba and Pierce sold

for the hotel development. Similar to the plaintiff in Sturdivant, Saliba and Pierce’s access

to water for their property was not for a public use. Therefore, the circuit court was correct

to hold that they did not have a viable claim for inverse condemnation.

7
The opinion suggests that Sturdivant might have had a viable negligence claim
under the Mississippi Tort Claims Act had that claim been timely filed, which it was not.
Sturdivant, 303 So. 3d at 1131 (¶24).

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III. Saliba and Pierce’s remaining arguments are either barred or
without merit.

¶14. Saliba and Pierce brought a continuing trespass claim against the City. However, they

voluntarily abandoned this claim during the proceedings, and the circuit court dismissed this

claim with prejudice by agreement of the parties.8 The circuit court nevertheless addressed

the merits of this claim in its final judgment, and the parties addressed it in their briefs.

Because this issue was dismissed with prejudice by agreement of the parties during the

proceedings before the circuit court, it is not properly before us, and we decline to address

it on appeal.

¶15. We also find that the circuit court did not err in denying Saliba and Pierce’s motion

for partial summary judgment. In addition to Saliba and Pierce’s claims being barred as a

matter of law as discussed above, a review of the record demonstrates that significant

material facts were in dispute, including whether the Saliba and Pierce had an appropriate

easement per the ordinance requirement, whether the damages to the parking lot were pre-

existing or caused by city vehicles, and whether the economic use of the Westover property

was diminished.

CONCLUSION

¶16. Saliba and Pierce did not have a contract with the City of Hattiesburg. Promissory

8
Tort actions against a governmental entity are subject to a one-year statute of
limitations under the Mississippi Tort Claims Act. See Miss. Code Ann. § 11-46-11 (Rev.
2019); see also Hood v. A&A Excavating Contractors Inc., 338 So. 3d 145, 151 (¶15) (Miss.
Ct. App. 2022) (holding a “continuing” tort action is non-viable when no evidence presented
of “repeated action” by alleged tortfeasor).

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estoppel does not operate as an exception to the minutes rule. Saliba and Pierce do not have

a viable inverse condemnation claim because their property was not taken for a public use

or benefit. The circuit court properly granted summary judgment to the City of Hattiesburg

and properly denied Saliba and Pierce’s partial motion for summary judgment. Therefore, we

affirm.

¶17. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE,
McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR.

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