Agnes V. Moreland v. Kimes & Stone Construction Company
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-01929-COA
AGNES V. MORELAND
APPELLANT
v.
KIMES & STONE CONSTRUCTION COMPANY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
8/5/2003
HON. PAUL S. FUNDERBURK
PRENTISS COUNTY CIRCUIT COURT
JOSEPH C. LANGSTON
ALAN M. PURDIE
R. H. "BO" BURRESS
RICKY L. BOGGAN
JAMES E. PRICE
CIVIL - WRONGFUL DEATH
MOTION FOR SUMMARY JUDGMENT
GRANTED IN FAVOR OF KIMES & STONE
REVERSED AND REMANDED - 09/21/2004
BEFORE BRIDGES AND LEE, P.JJ., CHANDLER AND GRIFFIS, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Kenneth Ray Moreland was killed on May 15, 2001, while driving southbound on U.S. Highway
45 in Prentiss County. Moreland died when the vehicle he was driving was struck by a vehicle driven by
James Sappington. Immediately prior to the collision, Sappington drove in a westerly direction on County
Road 7000 en route from the Kimes & Stone Construction Company office to a Kimes & Stone job site
in Blackland. County Road 7000 and Highway 45 intersect; however, traffic on Highway 45 has the rightof-way through the intersection, requiring traffic on County Road 7000 to yield to through traffic.
¶2.
Agnes Moreland, widow of Kenneth Moreland, filed suit as a wrongful death beneficiary against
Kimes & Stone on December 23, 2002. Kimes & Stone filed a motion for summary judgment on April
9, 2003, arguing that Sappington was not the company's employee, or that if he was, he was not engaged
in the course and scope of that employment at the time of the accident. Moreland also moved for summary
judgment regarding Sappington's employment by Kimes & Stone. The trial court granted Kimes & Stone's
motion in a one-page opinion, and dismissed the cause with prejudice. It is from the granting of this motion
that Agnes Moreland now appeals.
STANDARD OF REVIEW
¶3.
This Court employs a de novo standard of review of a lower court's grant or denial of summary
judgment and examines all the evidentiary matters before it-- admissions in pleadings, answers to
interrogatories, depositions, affidavits, etc. McCary v. Wade, 861 So. 2d 358, 360 (¶6) (Miss. Ct. App.
2003). The evidence must be viewed in the light most favorable to the party against whom the motion has
been made. Id. If, in this view, there is no genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law, summary judgment should be entered in the movant's favor. Id. Otherwise,
the motion should be denied.
¶4.
Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be
granted by a court 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 . . . ." M.R.C.P. 56(c).
The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues
2
of material fact such that they are entitled to judgment as a matter of law. Collier v. Trustmark Nat'l
Bank, 678 So. 2d 693, 696 (Miss.1996).
¶5.
The non-moving party should be given the benefit of every reasonable doubt. If any triable facts
exist, the lower court's grant of a summary judgment will be reversed; otherwise, the decision will be
affirmed. Brown v. Credit Ctr., Inc., 444 So. 2d 358, 362 (Miss. 1983). When a motion for summary
judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere
allegations or denials of his pleadings, his response must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered
against him. If any triable issues of fact exist, the lower court's decision to grant summary judgment will be
reversed. Otherwise, the decision is affirmed. Miller v. Meeks, 762 So. 2d 302, 304 (¶3) (Miss. 2000)
(internal citations omitted).
¶6.
"The traditional features of an employment contract are (1) consent of the parties, (2) consideration
for the service rendered, and (3) control by the employer over the employee." Walls v. N. Mississippi
Med. Ctr., 568 So. 2d 712, 715 (Miss. 1990) (citing Barragan v. W.C.A.B., 195 Cal. App.3d 637, 240
Cal. Rptr. 811, 814-815 (1987)).
¶7.
This Court has painstakingly reviewed the depositions submitted in support of the motions for
summary judgment. Neither side has met its burden in their respective motions for summary judgment.
From the deposition testimony submitted as exhibits to the motions for summary judgment, there are
definitive questions of fact for the jury to consider. According to Marilyn Sappington, her husband was
on his way to work in response to a call from Kimes & Stone offering him another seasonal position with
the company. According to Steven Stone, Sappington was on his way to test a piece of machinery to
determine whether or not he would be hired to work for the company. According to both Gary and Steven
3
Stone, employees were paid while they trained on a piece of equipment. According to Steven Stone's
testimony after he and Sappington met at the main office in Booneville, he directed Sappington to the job
site at Blackland. Also, Steve Stone admitted that Kimes & Stone does not allow non-employees to
operate their equipment or to roam the Kimes & Stone work sites.
¶8.
There are definite questions of fact regarding what control Kimes & Stone had over Sappington.
Steven Stone testified that the company would allow their workers to transport themselves to a work site,
but the company preferred to provide transportation. There was also testimony from Sharon Stone
Lindsey, who manages the payroll for the company, that to her knowledge no one received payment for
travel time to the work sites. There was testimony that the company sometimes provided its employees
with gas for use in their personal vehicles. All these snippets of testimony combine to afford a question of
fact as to whether or not James Sappington was within the control of Kimes & Stone as he headed towards
the job site at Blackland. Furthermore, it is clear that Kimes & Stone controlled the manner and method
of work at the various job sites, and that Kimes & Stone had previously controlled Sappington's manner
and method of work when he was hired on in previous years for seasonal work.
¶9.
The question remains at which point in time, if any, did Kimes & Stone and Sappington create the
employer/employee relationship. This is a question of fact for the jury to determine, and therefore summary
judgment for either party was not proper.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY IS
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND
BARNES, JJ., CONCUR.
4
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.
