Moore v. M & M Logging, Inc.
| Docket Number: | 2008-CA-01519-COA Linked Case(s): 2008-CA-01519-COA ; 2008-CT-01519-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-27-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Premises liability - Affidavit - M.R.C.P. 56(e) - M.R.C.P. 59 motion - M.R.C.P. 60(b)(6) - Continuance - M.R.C.P. 56(f) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 02-27-2008 Appealed from: Choctaw County Circuit Court Judge: Joseph H. Loper Disposition: GRANTED SUMMARY JUDGMENT FOR M&M LOGGING, INC. Case Number: 2005-0008 CV-L |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Charlotte Moore |
JAMES C. PATTON, JR. |
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| Appellee: | M & M Logging, Inc. | WILLIAM MATTHEW VINES | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Premises liability - Affidavit - M.R.C.P. 56(e) - M.R.C.P. 59 motion - M.R.C.P. 60(b)(6) - Continuance - M.R.C.P. 56(f) |
| Summary of the Facts: | M&M is a logging company. John Moore, Charlotte Moore’s husband, is the co-owner and president of M&M. The company occasionally conducts some of its business in a garage located behind the Moores’ residence. On December 29, 2003, John and two other M&M employees had been in the garage for approximately two hours attempting to mount and inflate a truck tire, a normal part of M&M’s business. Charlotte came into the garage to store Christmas decorations from the Moores’ personal residence. Searching for a storage box, Charlotte began to walk to the other side of the garage. She observed that a bubble was forming on the tire; however, before she could warn John, the tire burst and expelled a rush of air, causing Charlotte to fall backwards and sustain injuries. Charlotte filed a premises liability claim against M&M seeking damages. M&M filed a motion for summary judgment which the court granted. Charlotte appeals. |
| Summary of Opinion Analysis: | Issue 1: Premises liability In a premises liability claim, the duty owed by a property owner/occupier is dependent upon the status of the injured person at the time of the accident. There is no factual dispute between the parties that Charlotte was a licensee. The duty owed to a licensee by a landowner is to refrain from willfully or wantonly injuring him. However, there is an exception to the duty owed to a licensee in that ordinary reasonable care is required where the landowner engages in active conduct and the plaintiff’s presence is known to him. Charlotte argues that she showed through her complaint, M&M’s pleadings, her deposition, and John’s affidavit, that there was active conduct on the part of M&M. However, in her response to M&M’s motion for summary judgment, Charlotte neither included any sworn affidavit nor any other evidence to support her allegations. She merely provided a copy of her complaint. The summary judgment nonmovant bears the burden by affidavit or otherwise of setting forth specific facts showing that there are indeed genuine issues for trial. Issue 2: Affidavit Charlotte argues that John’s affidavit in support of M&M’s motion for summary judgment was not sufficient as it was conclusory and self-serving. If a nonmoving party in a summary judgment action wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit. The failure to do so constitutes waiver of any objection to the affidavit. Although Charlotte addressed the issue of the insufficiency of John’s affidavit in her response to the motion for summary judgment, at no time did she file a motion to strike John’s affidavit. In addition, John’s affidavit is sufficient under M.R.C.P. 56(e) to support summary judgment for M&M. The affidavit states specific and pertinent facts based upon his personal knowledge of the events that occurred surrounding Charlotte’s injury. Issue 3: M.R.C.P. 59 motion Following the entry of summary judgment, Charlotte filed a motion to set aside the summary judgment pursuant to M.R.C.P. 59. The motion included a sworn affidavit by Charlotte, which described alleged admissions that John had made to her regarding the events surrounding her injury. Charlotte argues that the circuit court abused its discretion in failing to consider her affidavit in ruling on her motion. However, the record shows that M&M contacted Charlotte, alleging that paragraph 6 of her sworn affidavit was patently false. Charlotte agreed to withdraw paragraph 6 and filed a motion to withdraw the affidavit and to substitute another affidavit that did not contain the paragraph in question. The circuit court granted Charlotte’s motion to withdraw. However, Charlotte failed to submit another sworn affidavit; rather, she merely attached an unsigned copy of the substitute affidavit that had been attached to her motion to withdraw. An affidavit which is not sworn is merely a piece of paper with the word ‘affidavit’ as its title. Thus, the circuit court’s failure to consider Charlotte’s affidavit was not an abuse of discretion. In her motion to set aside, Charlotte also argued that the summary judgment should be set aside pursuant to M.R.C.P. 60(b)(6) in order to prevent manifest injustice. Rule 60(b) should not be used by litigants as an escape hatch in cases where the movant has had procedural opportunities afforded under other rules yet has failed to pursue said procedural remedies. There was no abuse of discretion in the circuit court’s failure to consider Charlotte’s affidavit in its denial of the motion to set aside the summary judgment. Issue 4: Continuance Charlotte argues that the circuit court’s denial of her request for an order of continuance, pursuant to M.R.C.P. 56(f), was an abuse of discretion. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. Almost two years passed between the filing of Charlotte’s complaint and the filing of M&M’s motion for summary judgment, affording both parties ample time in which to conduct discovery in this case. Also, any information that Charlotte sought to “discover” was largely available to her immediately after the injury occurred. Thus, there was no error. |
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