Nancy Lott v. Harris D. Purvis
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-02082-COA
NANCY LOTT
APPELLANT
v.
HARRIS D. PURVIS AND BRJ, INC.
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
10/03/2007
HON. PRENTISS GREENE HARRELL
LAMAR COUNTY CIRCUIT COURT
ALEXANDER IGNATIEV
BRIAN BARRY HANNULA
EDWIN S. GAULT
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED
AFFIRMED-02/10/2009
EN BANC.
ISHEE, J., FOR THE COURT:
¶1.
Following the failure of Nancy Lott or her attorney to appear at a hearing on a motion
for summary judgment, the Circuit Court of Lamar County granted the motion in favor of
Harris D. Purvis and BRJ, Inc. (BRJ). Lott now appeals from the circuit court’s order
granting summary judgment in favor of Purvis and BRJ. She argues only one issue – the
circuit court erred as matter of law in granting the motion. Finding Lott’s argument to be
without merit, we affirm the judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶2.
On January 25, 2007, Lott filed a complaint in circuit court alleging that the
negligence of Purvis caused her injuries. The complaint further alleged that Purvis was
acting in the scope of his employment for Keithco Petroleum, Inc. (Keithco).
¶3.
Lott alleged in the complaint that on the day of the accident, she was stopped in the
parking lot of a Chevron station in Lamar County, Mississippi.
While stopped, the
defendant, Purvis, allegedly operated his eighteen-wheeler tanker truck in a negligent manner
so that he backed it into the stopped vehicle occupied by Lott. According to Lott, Purvis
failed to make sure the path behind him was clear before backing up the truck. It was Lott’s
original belief that the truck driven by Purvis was owned by Keithco. Lott claimed that the
vehicle she was driving sustained damage and that she suffered bodily injury because of the
accident.
¶4.
Following a motion for summary judgment filed by Keithco, the parties agreed to
allow Lott to amend her complaint to substitute BRJ for Keithco as a defendant. Thereafter,
BRJ and Purvis filed a second motion for summary judgment. In that motion, Purvis and
BRJ argued that Lott failed to produce any evidence that the accident with Purvis in any way
caused her injuries. More specifically, Purvis and BRJ argued that Lott failed to designate
any witnesses by the deadline to do so and that her medical records did not establish a causal
connection between the alleged negligent conduct and Lott’s alleged injuries.
¶5.
The circuit court held a hearing on Purvis and BRJ’s second motion for summary
judgment. However, neither Lott nor her attorney attended the hearing, and the circuit court
granted summary judgment in favor of Purvis and BRJ. Not only did she fail to attend the
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hearing on the motion for summary judgment, but Lott never responded to the motion until
after the circuit court had granted it. On October 3, 2007, the circuit court signed an order
granting Purvis and BRJ’s motion for summary judgment, but Lott did not file a response to
that motion until October 18, 2007.
¶6.
Following the circuit court’s grant of summary judgment, Lott filed a motion to set
aside the judgment, which the circuit court denied. Lott then filed a motion to alter or amend
the judgment. She withdrew that motion, however, electing instead to file the present appeal.
STANDARD OF REVIEW
¶7.
This Court’s standard of review regarding a circuit court’s grant of a motion for
summary judgment is as follows:
The Court employs a de novo standard of review in reviewing a lower court's
grant of summary judgment motion. Roussel v. Hutton, 638 So. 2d 1305, 1314
(Miss. 1994). Summary judgment is appropriate if the evidence before the
Court – admissions in the pleadings, answers to interrogatories, depositions,
affidavits, etc. – shows there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Newell v. Hinton, 556
So. 2d 1037, 1041 (Miss. 1990). This Court does not try issues on a Rule 56
motion, but only determines whether there are issues to be tried. [Miss.] Ins.
Guar. [Ass’n] v. Byars, 614 So. 2d 959, 963 (Miss. 1993). In reaching this
determination, the Court examines affidavits and other evidence to determine
whether a triable issue exists, rather than the purpose of resolving that issue.
Comment, Miss. R. Civ. P. 56.
Miss. Gaming Comm’n v. Treasured Arts, 699 So. 2d 936, 938 (¶11) (Miss. 1997).
DISCUSSION
¶8.
Lott presents only one issue on appeal – whether the circuit court erred as a matter of
law in granting Purvis and BRJ’s motion for summary judgment. Lott argues that the motion
for summary judgment was not properly filed and was not supported by the facts. She comes
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to this conclusion based on the fact that Purvis and BRJ’s motion was unaccompanied by
affidavits or other evidence. Lott further argues that the only reason the circuit court granted
the motion was because she and her attorney failed to appear at the hearing on the motion.
¶9.
Despite her assertions, there is no requirement that a party filing a motion for
summary judgment must accompany the motion with any affidavits. Rule 56(b) of the
Mississippi Rules of Civil Procedure provides that “[a] party against whom a claim,
counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any
time, move with or without supporting affidavits for a summary judgment in his favor as to
all or any part thereof.”
¶10.
In Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988), the supreme court
addressed the law regarding the burden of proof required to support a motion for summary
judgment. The supreme court stated that “[t]he burden of producing evidence in support of
or in opposition to a motion for summary judgment is a function of our rules regarding the
burden of proof at trial on the issue in question.” Id. A party moving for summary judgment
bears no more burden of proof than what he bears at trial. Id. The movant’s burden is one
of production and persuasion, not of proof. Id. (citing Brown v. McQuinn, 501 So. 2d 1093,
1095 (Miss. 1986)). “[T]he movant has the job of persuading the court, first, that there is no
genuine issue of material fact and, second, that on the basis of the facts established, he is
entitled to judgment as a matter of law.” Id.
¶11.
Once the party moving for summary judgment has shown an absence of a genuine
issue of material fact, the “burden of rebuttal falls upon the [nonmoving] party” to “produce
specific facts showing that there is a genuine material issue for trial.” Wilbourn v. Stennett,
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Wilkinson & Ward, 687 So. 2d 1205, 1213 (Miss. 1996). The “[nonmoving] party’s claim
must be supported by more than a mere scintilla of colorable evidence; it must be evidence
upon which a fair-minded jury could return a favorable verdict.” Id. at 1214. Bare assertions
are not enough to avoid summary judgment, and the nonmovant may not rest upon the
allegations in her pleadings. Watson v. Johnson, 848 So. 2d 873, 878 (¶18) (Miss. Ct. App.
2002) (citing Travis v. Stewart, 680 So. 2d 214, 218 (Miss. 1996)).
¶12.
In the present case, Purvis and BRJ successfully showed an absence of material fact
with regard to Lott’s case. Purvis and BRJ alleged in their motion for summary judgment
that Lott failed to produce any evidence to show that her alleged injuries were causally
related to the accident with Purvis. Contrary to Lott’s claim that the circuit court only
granted the motion for summary judgment because she and her attorney did not show up at
the hearing on the motion, the circuit court stated in its order granting the motion that the
decision was “based on [P]laintiff’s lack of evidence supporting her allegations that
Defendants’ alleged wrongdoing was the cause in fact of her injuries . . . .”
¶13.
As required by Rule 56(b), Purvis and BRJ filed a motion alleging that Lott did not
satisfy her burden of presenting evidence of each of the necessary elements of negligence.
In First Nat'l Bank v. Olive, 330 So. 2d 568, 572 (Miss. 1976) (quoting Hudson v. Farrish
Gravel Co., Inc., 279 So. 2d 630, 636 (Miss. 1973)), the supreme court said that:
Ordinarily, no recovery can be had where resort must be had to speculation or
conjecture for the purpose of determining whether or not the damages resulted
from the act of which complaint is made, or some other cause, or where it is
impossible to say what of any portion of the damages resulted from the fault
of the defendant and what portion from the fault of the plaintiff himself.
¶14.
In order to proceed on her claim of negligence, Lott was required to present specific
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evidence of the following: (1) a duty owed to her by Purvis and BRJ, (2) a breach of that
duty, (3) a causal connection between Purvis’s conduct and her alleged injuries, and (4)
damages she suffered. Spoo v. T.L. Wallace Constr. Co., 858 So. 2d 199, 202 (¶11) (Miss.
Ct. App. 2003). Notwithstanding Lott’s failure to appear at the hearing on the motion, the
circuit court considered the evidence and found nothing to establish a causal connection.
Even on appeal, Lott does not point to any witness or evidence indicating that Purvis’s
actions caused her alleged injuries.
¶15.
As the circuit court did, we find nothing in the record to indicate that Lott’s alleged
injuries were the result of the alleged negligence of Purvis. In addressing Rule 56, the
supreme court has stated that:
[W]here the party opposing the motion for summary judgment on a claim or
defense upon which it bears the burden of proof at trial, and the moving party
can show a complete failure of proof on an essential element of the claim or
defense, other issues become immaterial and the moving party is entitled to
summary judgment as a matter of law.
Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186, 1188-89 (Miss.
1994) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416
(Miss. 1988)). First, Lott failed to file a timely response to Purvis and BRJ’s motion.
Second, Lott’s untimely response to the motion further failed to point to any evidence
indicating that her alleged injuries were the result of Purvis’s actions.
¶16.
After reviewing the record before this Court, we agree with the circuit court that Lott
presented no evidence of causation aside from her own allegations. Accordingly, there was
no genuine issue of material fact as to the causation element of negligence. We find that the
circuit court properly granted summary judgment in favor of Purvis and BRJ, and we affirm
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that judgment.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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