Marsha K. Austin v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01656-COA
MARSHA K. AUSTIN
APPELLANT
v.
THE STATE OF MISSISSIPPI, MISSISSIPPI
DEPARTMENT OF MENTAL HEALTH,
CHERYL PHILLIPS AND JAMES CHASTAIN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
09/21/2009
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
E. MICHAEL MARKS
JULIE ANN EPPS
LOUIS G. BAINE III
JAN F. GADOW
MICHELLE TOLLE HIGH
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
SUMMARY JUDGMENT FOR
DEFENDANTS
AFFIRMED: 02/01/2011
BEFORE MYERS, P.J., IRVING AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Marsha Austin filed suit against the State of Mississippi, the Mississippi Department
of Mental Health, and two MDMH employees, Cheryl Phillips and James Chastain. We shall
refer to the defendants collectively as MDMH. Austin alleged that she had been fired for
complaining about understaffing and falsification of medical records at the Mississippi State
Hospital at Whitfield, where she had worked as a nurse.
Austin alleged wrongful
termination, negligence and gross negligence, breach of contract and tortious breach of
contract, negligent and intentional infliction of emotional distress, and slander and
defamation.1 MDMH denied the substance of Austin’s complaint, maintaining that she had
been fired for falsifying a timecard.
sovereign immunity.
MDMH also raised various defenses, including
The Rankin County Circuit Court ultimately granted summary
judgment to MDMH. Austin appeals.
STANDARD OF REVIEW
¶2.
We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp.
v. Ricard, 967 So. 2d 1235, 1238 (¶10) (Miss. 2007). This Court “examines all the
evidentiary matters before it – admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001)
(citations omitted). The moving party has the burden of demonstrating that no genuine issue
of material fact exists, and the nonmoving party must be given the benefit of doubt
concerning the existence of a material fact. Id. “If no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law, summary judgment should
be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So. 2d 134, 136 (¶5) (Miss.
2005). “A fact is material if it tends to resolve any of the issues properly raised by the
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Austin also raised various claims under federal law, but she did not oppose summary
judgment on those counts.
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parties.” Moss v. Batesville Casket Co., Inc., 935 So. 2d 393, 398 (¶16) (Miss. 2006)
(citation and internal quotations omitted).
DISCUSSION
¶3.
The only discovery in this case was propounded by MDMH. In her response to the
motion for summary judgment and her brief on appeal, Austin relies entirely on her responses
to MDMH’s interrogatories as evidence to defeat summary judgment. However, Austin’s
interrogatory responses, as they appear in the record, are unsworn. Unsworn responses to
interrogatories are not competent evidence to oppose summary judgment. Scales v. Lackey
Mem’l Hosp., 988 So. 2d 426, 434 (¶18) (Miss. Ct. App. 2008).
¶4.
It is well settled that to survive summary judgment, “[t]he non-moving 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.” Luvene v. Waldrup, 903 So.
2d 745, 748 (¶10) (Miss. 2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.
2d 1205, 1213-14 (Miss. 1996)). A plaintiff cannot survive a motion for summary judgment
by relying on “unsworn allegations in the pleadings, or arguments and assertions in briefs or
legal memoranda.” Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346, 1356 (Miss.
1990) (internal quotations omitted).
¶5.
In her reply brief on appeal, Austin argues that a genuine issue of material fact may
inferred from MDMH’s admissions in its answer. She notes that MDMH admitted that
Austin had been employed as a nurse, had complained about understaffing on one occasion,
and had been terminated. From these admitted facts, Austin argues she is entitled to the
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inference that she was wrongfully terminated for complaining about understaffing. Austin
is correct that in resisting summary judgment she is entitled to the benefit of all reasonable
inferences that can be drawn from the evidence. Rhaly v. Waste Mgmt. of Miss., Inc., 43 So.
3d 509, 516 (¶22) (Miss. Ct. App. 2010). However, that evidence must be sufficient “to
remove the case from the realm of conjecture and place it within the field of legitimate
inference.” Kussman v. V & G Welding Supply, Inc., 585 So. 2d 700, 703 (Miss. 1991).
There is no evidence suggesting a causal relationship between the complaint and the
termination; MDMH instead maintained that Austin was terminated for tardiness and
falsifying a timecard. In fact, the allegation that Austin was terminated for complaining
about understaffing was made in the complaint and specifically denied by MDMH in its
answer.
¶6.
We have thoroughly reviewed the record, and we can find no competent evidence
sufficient to support any of Austin’s alleged causes of action. Consequently, we affirm the
trial court’s grant of summary judgment to MDMH.
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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