Cooper L. "Pete" Misskelley v. Carroll County, Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01054-COA
COOPER L. “PETE” MISSKELLEY
APPELLANT
v.
CARROLL COUNTY, MISSISSIPPI AND
CARROLL/MONTGOMERY REGIONAL
CORRECTIONAL FACILITY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
5/28/2009
HON. C.E. MORGAN III
CARROLL COUNTY CIRCUIT COURT
WEBB FRANKLIN
SILAS W. MCCHAREN
SANDRA DENISE BUCHANAN
CIVIL - CONTRACT
SUMMARY JUDGMENT GRANTED IN
FAVOR OF THE APPELLEES
AFFIRMED - 10/5/2010
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶1.
Cooper P. “Pete” Misskelley is the former warden of the Carroll County/Montgomery
County Correctional Facility. When Misskelley became physically disabled and unable to
perform his duties as warden, he requested his accrued catastrophic leave, a benefit granted
by language contained in the correctional facility’s personnel policy handbook. His accrued
leave totaled 275 days.1 However, the Board of Supervisors of Carroll County (the Board)
1
This figure is the time accrued from Misskelley’s original date of hire by Carroll
approved only fifty-two days of catastrophic leave; the remaining 223 days were considered
“creditable service” to his retirement plan since the Board considered Misskelly terminated
from employment as of December 31, 2007. Misskelley filed a complaint against Carroll
County and the Carroll County/Montgomery County Regional Correctional Facility
(hereinafter referred to collectively as Carroll County), claiming that he should have received
the remaining 223 days of accrued leave. Carroll County responded with a motion to dismiss
and/or, alternatively, a motion for summary judgment.2 The Circuit Court of Carroll County
granted the motion, dismissing Misskelley’s claim with prejudice, and Misskelley now
appeals. We affirm the circuit court’s judgment, finding that there was no genuine issue of
material fact but that the Board correctly interpreted the personnel policy and that Misskelly
was not entitled to the remaining catastrophic leave.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Misskelley entered into a written employment contract with Carroll County on
January 20, 2004, to become the warden for the County’s recently constructed correctional
facility. The initial term of the contract was for a period of one year beginning on January
1, 2004. The contract was to renew automatically on a yearly basis unless either party
submitted a notice of termination sixty days prior the termination date of the contract or
renewal. The contract also stated that Misskelley’s employment could be terminated “for
County in April 1999.
2
The Mississippi Department of Corrections (MDOC) was also listed as a defendant
in the original complaint, but Misskelley later conceded that he had no cause of action
against the MDOC. As such, the circuit court submitted an order and final judgment on
April 21, 2009, dismissing all claims against the MDOC; therefore, it is not a party to this
appeal.
2
reasonable cause” or “failure or refusal to adequately perform the duties” as warden.
¶3.
Misskelley was also bound by Carroll County’s personnel policy handbook, which
covered all correctional facility employees. The handbook had a clause that provided for
catastrophic leave. The clause stated:
The Facility shall allow thirty (30) days per year (20 hours per month) for
catastrophic injury or illness for employees and appointed officials. A
catastrophic injury or illness means a severe condition or combination of
conditions affecting the mental or physical health of an employee or member
of an employee’s immediate family that requires the services of a licensed
physician for an extended period of time and that forces the employee to
exhaust all personal and sick leave that cannot be carried over into the next
calendar year. Unused catastrophic leave shall be carried over into
subsequent calendar years and any unused leave shall be counted as
creditable service for the purposes of the retirement system upon termination
of employment. Catastrophic leave can only be used by employees or
appointed officials upon approval of the Sheriff of Carroll County and the
Board of Supervisors of Carroll County. Catastrophic leave shall be
retroactive to all current covered employees in the retirement system beginning
at their date of employment with Carroll County.
(Emphasis added).
¶4.
On April 24, 2007, Carroll County Sheriff Donald Gray wrote a letter to the Carroll
County Chancery Clerk, stating that, effective April 22, 2007, Misskelley had resigned from
his position as warden. According to Misskelley, the letter stemmed from his refusal to work
with an insubordinate employee; however, he denies that he resigned. The following day,
Sheriff Gray approved a final paycheck for Misskelley, totaling $14,800.80, which included
his salary through April 30, 2007, and compensation for twenty-four days of unused vacation
time and 193 hours of compensatory time. Due to Misskelley’s departure, two other
employees resigned. On May 4, 2007, Sheriff Gray wrote a second letter to the chancery
clerk informing him that Misskelley would be resuming his duties as warden, and the period
3
between April 30, 2007, and May 7, 2007, would be considered an unpaid leave of absence.
Misskelley never entered into a new written employment contract with Carroll County.
¶5.
On November 5, 2007, Sheriff Gray submitted a letter to the Board requesting that
catastrophic leave be granted for Misskelley. Attached to this request was a letter by Dr.
Susan Neely, dated October 26, 2007, which stated that Misskelley suffered from severe
arthritis and was unable to perform his duties as warden. She further recommended that a
knee and hip replacement were necessary before Misskelley could resume his duties. That
same day, the Board met and unanimously approved Sheriff Gray’s request to pay Misskelly
for his unused catastrophic leave, “pending determination of ending date.”
¶6.
The following day, a new sheriff for Carroll County, Jerry Carver, was elected.
Carver immediately hired a new warden for the correctional facility. On November 16, 2007,
the Board approved catastrophic leave for Misskelley for the period of November 9, 2007,
to December 31, 2007, “pending termination date.” (Emphasis added). Thus, Misskelley
was paid for fifty-two days of his catastrophic leave. His remaining leave of 223 days was
certified by the Board and submitted to the state’s Public Employment Retirement System
(PERS) for consideration as “creditable service” under the terms of the personnel handbook
policy. Misskelley, aggrieved by this result, appeared at the next Board meeting and stated
that he was entitled to the entire 275 days of catastrophic leave; however, the record does not
reflect that the Board took any further action regarding this matter. At the January 8, 2008,
meeting, the Board approved the employment contract for the new warden.
¶7.
On January 29, 2008, Misskelley filed a notice of claim and intention to file suit in
accordance with Mississippi Code Annotated section 11-46-11 (Rev. 2002) of the Mississippi
4
Tort Claims Act (MTCA). Then, on June 18, 2008, Misskelley filed a complaint with the
Carroll County Circuit Court, alleging that the Board’s failure to pay him for all of his
accrued catastrophic leave “was unlawful, malicious, arbitrary, and in direct violation of
Carroll County’s written personnel policy, and in violation of [Misskelley’s] contract of
employment.” On January 14, 2009, Carroll County filed a motion to dismiss and/or,
alternatively, a motion for summary judgment. Its position was that Misskelley’s claim was
barred because: he failed to exhaust his administrative remedies and file a bill of exceptions
pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2002); his employment
contract had terminated, making him an “at-will” employee; and the Board’s actions were
in compliance with the catastrophic leave clause contained in the personnel policy handbook.
¶8.
On May 29, 2009, the circuit court granted Carroll County’s motion for summary
judgment. In its order, the circuit court stated that since Misskelley’s claim was a breach-ofcontract claim under the MTCA, no bill of exceptions was necessary. The circuit court
further found that Misskelley was not employed after December 31, 2007, and that the status
of Misskelley’s employment, whether contractual or at-will, was irrelevant as it pertained to
the application of the catastrophic leave clause contained in the handbook. Finally, the
circuit court held that the Board did not breach Misskelley’s contract and that the Board had
followed Carroll County’s personnel policy in awarding the accrued catastrophic leave
appropriately. The circuit court’s judgment was entered on June 25, 2009, dismissing
Misskelley’s claim with prejudice, and Misskelley now appeals. Finding that no genuine
issue of material fact exists that the Board properly interpreted the catastrophic leave policy,
we affirm the circuit court’s grant of summary judgment.
5
STANDARD OF REVIEW
¶9.
If a circuit court determines from “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits,” that no genuine issue
of material facts exists and that the movant is “entitled to judgment as a matter of law[,]” then
a motion for summary judgment may be granted. United Plumbing & Heating Co., Inc. v.
AmSouth Bank, 30 So. 3d 343, 345 (¶4) (Miss. Ct. App. 2009) (citing M.R.C.P. 56(c)). The
movant has the burden to show that “no genuine issue of material fact[ ] exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material
fact.” Howard v. City of Biloxi, 943 So. 2d 751, 754 (¶4) (Miss. Ct. App. 2006). This Court
conducts a de novo review of a circuit court’s grant or denial of summary judgment.
Duckworth v. Warren, 10 So. 3d 433, 440 (¶22) (Miss. Ct. App. 2009) (citing Moss v.
Batesville Casket Co., 935 So. 2d 393, 398 (¶15) (Miss. 2006)).
I.
¶10.
Whether the circuit court erred in determining that Misskelley’s
employment status was not relevant to his claim.
Misskelley submits that the resolution of the issue of his employment status was
outcome determinative and should have been addressed by the circuit court. Admittedly, we
find that there is a dispute of fact as to whether Misskelley resigned in April 2007; however,
it is not a material issue pertinent to Misskelley’s actual substantive claim. Thus, we agree
with the circuit court’s finding that the question of whether Misskelley had actually resigned
in April 2007, making him an at-will employee, or whether he retained his status as a
contract employee, was not relevant to the issue of whether he was entitled to payment for
his accrued catastrophic leave.
6
¶11.
The handbook was applicable to all employees of the correctional facility, whether
their status was contractual or at-will. Misskelley, in his response to Carroll County’s motion
for summary judgment, admitted as much, stating that “the issue of whether or not [he] was
a contracted employee . . . . has no relevance to [his] claim that the County violated the terms
of its catastrophic leave policy.” At the motion on the hearing for summary judgment,
counsel for Misskelley, Webb Franklin, also agreed with the circuit court on this point, as
follows:
BY THE COURT:
Yeah, [Misskelley] is governed by the handbook.
That is the point I’m trying to make. It doesn’t
matter what his contract says. It’s, not, the terms
of the contract are not at issue. It’s the terms of
the handbook that are at issue. Isn’t that right?
BY MR. FRANKLIN:
You are right. You are correct.
....
BY THE COURT:
. . . . If to be hired in the first place, the Sheriff
hired him, and he had to do so with the approval
of the Board, then there may be some questions
about whether or not this resignation letter was, in
fact, a resignation letter or whether he was just
placed on – then you get into a question of
whether he claimed his back benefits during the
time he was off and all like that. You have got
some factual issues and things to determine there,
but does it have anything to do with what I have
got to determine here today in y’all’s motion?
BY MR. FRANKLIN:
No, Your Honor. So we would certainly admit
that he would have to take a credit against what
he got paid for his sick leave. I mean obviously.
We don’t deny that. We don’t dispute that
argument.
BY THE COURT:
Well, it also goes into . . . if a determination is
7
going to be made as to how he was employed,
whether he was a contract employee or at will
employment, that fact that he took those benefits
at that time might have some relevance to that.
But y’all are not asking me to decide that[.]
BY MR. FRANKLIN:
No.
Misskelley stated in his response to the motion for summary judgment, as well as at the
hearing, that the issue of employment status would only be relevant as it pertains to the issue
of attorney’s fees, if he succeeds on the breach-of-contract claim. Therefore, this issue was
waived by Misskelley and is also without merit.
II.
¶12.
Whether the circuit court erred in finding that Carroll County did
not breach Misskelley’s employment contract.
Misskelley contends that Carroll County’s failure to keep him in catastrophic-leave
status and compensate him for the accrued 223 days constituted a breach of his employment
contract as the personnel handbook was a part of his employment contract. However, the
circuit court found that there was no breach of Misskelley’s employment contract.
¶13.
The Mississippi Supreme Court has held that an employee policy manual “can create
contractual obligations, even in the absence of a written agreement.” Perry v. Sears,
Roebuck & Co., 508 So. 2d 1086, 1088 (Miss. 1987). Furthermore, “a written contract can
be modified by a policy handbook which then becomes part of the contract, but only where
the contract expressly provides that it will be performed in accordance with the policies,
rules and regulations of the employer.” Id. (citing Robinson v. Bd. of Trs. of E. Cent. Junior
Coll., 477 So. 2d 1352, 1353 (Miss. 1985)) (emphasis added).
Misskelley was bound by the terms of the personnel handbook.
8
It is undisputed that
¶14.
In his original complaint, Misskelley contended that he should have remained
employed and received his regular pay and benefits “until his leave status ha[d] expired.”
He also requested reimbursement for private insurance that he was forced to obtain, damages
for loss of retirement credit during the 223 days he was not on leave, damages for mental
suffering and emotional distress, punitive damages, and attorney’s fees. Thus, Misskelley
argues, in effect, that once he was placed on catastrophic leave, he was guaranteed
employment through his accrued 275 days.
¶15.
We cannot accept Misskelley’s interpretation as there is nothing in the handbook or
Misskelley’s contract to support this claim. Misskelly has even confessed to this Court that
“the case at bar is not a termination of employment case.” Misskelley’s counsel also
admitted to the circuit court that he was no longer under the contract.
BY THE COURT:
BY MR. FRANKLIN:
¶16.
Okay. He is still under contract then under your
interpretation, isn’t he?
Well, no, sir. He is not because he is unable to
perform his job. He has earned his catastrophic
leave, and it has now expired, but he hasn’t been
paid for it.
Moreover, Misskelley’s employment contract makes no mention of the employee
handbook and its policies. Therefore, although the handbook’s catastrophic leave policy was
legally binding between the County and Misskelley, the policy had no legal effect on
Misskelley’s written employment contract. Misskelly admitted this fact at the hearing on the
motion for summary judgment:
[BY MR. FRANKLIN]:
All right. Now if I might, Mr. Misskelley,
even if the Court should find that your
contract, your written contract was
9
[vitiated], under that portion of the policy,
it wouldn’t really make any difference,
would it?
[BY MR. MISSKELLEY]: I wouldn’t think so; no, sir.
[BY MR. FRANKLIN]:
Why?
[BY MR. MISSKELLEY]: Because the personnel policy covered everybody
including me.
After further discussion, counsel for Misskelley reiterated, as follows:
BY THE COURT:
BY MR. FRANKLIN:
¶17.
Yeah, he is governed by the handbook. That is
the point I’m trying to make. It doesn’t matter
what his contract says. It’s, not, the terms of the
contract are not at issue. It’s the terms of the
handbook that are at issue. Isn’t that right?
You are right. You are correct.
Therefore, we find no error in the circuit court’s finding that the Board did not breach
Misskelley’s employment contract in not awarding Misskelley his 223 days of accrued
catastrophic leave.
III.
¶18.
Whether Misskelley’s employment was terminated by Carroll
County.
Misskelley claims that his employment with Carroll County was never officially
terminated as he was neither informed by the Board or Carroll County that he was terminated
nor that he would not receive his entire 275 days of catastrophic leave. We find this assertion
without merit. The circuit court found that Misskelley had notice of his termination based
upon the fact that he appeared before the Board prior to December 31, 2007, to contest the
Board’s termination of his leave status. The Board, on November 16, 2007, approved only
fifty-two days of leave for Misskelley, pending termination date. The record supports the
10
circuit court’s finding that Misskelley was aware of this decision by the Board, considering
that he appeared before the Board at its next meeting to challenge its decision. As already
noted, Misskelley’s counsel stated at the summary-judgment hearing that Misskelley was not
under the written contract as he is still disabled and unable to perform his duties as warden
– a fact that Misskelley also confirmed in his testimony. As the circuit court observed in its
order, this violates Section Five of Misskelley’s employment contract, which states that the
contract shall terminate upon the “[w]arden’s failure or refusal to adequately perform the
duties of his employment.” Furthermore, Misskelley knew that a new warden had been
hired, and he made no claim for salary after December 31, 2007.
¶19.
Accordingly, we find nothing in the record to support that Misskelley was still
employed by Carroll County after December 31, 2007.
IV.
¶20.
Whether the circuit court erred in its interpretation of the
catastrophic-leave clause of Carroll County’s personnel policy.
The catastrophic-leave clause in the personnel policy handbook provided that, upon
an employee’s termination, “any unused leave shall be counted as creditable service for the
purposes of the retirement system[.]” Misskelley argues that this provision was meant for
those employees who had not utilized their catastrophic leave due to illness or injury. Thus,
he claims that since he was placed on leave prior to termination, he should have remained on
leave for the remaining 223 days. In other words, he claims that his right to his accrued
catastrophic leave had “vested.”
¶21.
A vested right is “[a] right that so completely and definitely belongs to a person that
it cannot be impaired or taken away without the person’s consent.” Black’s Law Dictionary
11
1438 (9th ed. 2009). The personnel policy handbook clearly states that: “Catastrophic leave
can only be used by employees or appointed officials upon approval of the Sheriff of Carroll
County and the Board of Supervisors of Carroll County.” (Emphasis added). This language
indicates that an employee’s use of his accrued catastrophic leave is not a vested right; rather,
it is a benefit conferred by the Board and Sheriff on a discretionary basis. Further, there is
nothing in the handbook that states the Board is required to approve the entire amount of
leave accrued by an employee. The handbook clearly states that any leave not used by
termination date was to be deemed “creditable service,” and the Board adhered to this policy.
¶22.
Thus, we find no error in the circuit court’s interpretation of the catastrophic leave
policy. As no genuine issue of material fact exists to show that the Board’s actions
interpreting the policy were in error, we affirm the circuit court’s grant of summary judgment
in favor of Carroll County.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF CARROLL COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.