Preview:

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-CA-01028 COA DANIEL ROBERT BARROW, AMERICAN KEY AND LOCK, INC., & MICHAEL W. MCCORKLE v. JESSIE HOPKINS, SHERIFF OF MADISON COUNTY APPELLANTS

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE: 07/29/95 HON. WILLIAM JOSEPH LUTZ MADISON COUNTY CHANCERY COURT JOHN STEPHEN BARRON E. MICHAEL MARKS REBECCA BARGE COWAN C. R. MONTGOMERY SAMUEL SUTHERLAND GOZA CIVIL -- PERMANENT INJUNCTION AGAINST THE SHERIFF SUMMARY JUDGMENT IN FAVOR OF SHERIFF/APPELLEE AFFIRMED -12/2/97

NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

12/23/97

BEFORE BRIDGES, C.J., COLEMAN, AND SOUTHWICK, JJ. COLEMAN, J., FOR THE COURT: The appellants, Daniel Robert Barrow, American Key and Lock, Inc., and Michael W. McCorkle, locksmiths in Madison County, filed a complaint for permanent injunction against the appellee, Jessie Hopkins, the Sheriff of Madison County, in the Chancery Court of Madison County. The appellants, to whom we will refer collectively as "locksmiths," asked the chancery court permanently to enjoin Sheriff Hopkins from unlocking locked vehicles and to instruct "all persons requesting assistance with locked vehicles, in non-emergency situations, to call a professional locksmith." The chancellor sustained the sheriff's motion for summary judgment, and the locksmiths have appealed. There are no material issues of fact, but we affirm because we find that the locksmiths are unable to assert any

valid legal theory on which to base their complaint for permanent injunction. I. FACTS For several years, Jesse Hopkins, Sheriff of Madison County, has followed a policy which authorized his deputies to unlock vehicles for residents of Madison County who had inadvertently locked themselves out of their vehicles. Robert Barrow, the principal shareholder in American Key and Lock, Inc., and Michael McCorkle are licensed locksmiths who primarily practice their profession in Madison County. II. LITIGATION The locksmiths filed a complaint for permanent injunction against Sheriff Hopkins in which they complained that the Madison County Sheriff's Department's "practice of opening vehicles in nonemergency situations puts the Sheriff in direct competition with the Plaintiffs' private business enterprises and directly interferes with their ability to earn a living." Thus, "the sheriff's practice of allowing deputies to open locked vehicles in non-emergency situations has caused and continues to cause the Plaintiffs irreparable, concrete and tangible economic injury, over and above that degree of injury caused to the average citizen." The locksmiths charged in their complaint that this practice "constitute[d] an abuse of his discretionary authority, and a misappropriation of public property, man-power and funds [which] directly interfere[d] with the [locksmiths'] businesses." They concluded their complaint with a prayer for permanent injunctive relief as we earlier recited. In his answer to the locksmiths' complaint, the sheriff admitted "that his Department, when called upon by the general public, assists citizens who have locked themselves our of their cars by opening their car doors for them." The day after the sheriff filed his answer, he moved for summary judgment. In support of his motion for summary judgment, the sheriff filed his affidavit in which he again admitted that "as an accommodation and service to the general public of Madison County, Mississippi, his Department provides assistance to motorist[s] who are locked our of their cars by unlocking their car doors for them." The sheriff further swore that he did not charge a fee to any citizen of Madison County for whom his deputies unlocked their vehicles. In his affidavit, the sheriff opined that "when any citizen is locked out of his or her car, that citizen's safety is at risk." The sheriff concluded by stating that he knew of no law or statute that prevented his department from providing these services free of charge to the general public in Madison County. The locksmiths responded to the sheriff's affidavit with the "contention that the opening of a locked vehicle, where no emergency circumstances are present, constitutes a commercial service which falls into the same category as mechanic work, plumbing and child day care." It seemed obvious to the locksmiths that if "the sheriff was appropriating money, equipment, and manpower to perform these services [of mechanic work, plumbing and child day care] for county residents, that practice would be subject to injunction as an illegal misappropriation." Both Barrow and McCorkle filed affidavits in which they swore that the sheriff's policy of unlocking cars in which Madison County motorists had locked their keys, "without regard to whether or not an emergency exists, has caused direct, concrete and tangible economic injury to" their respective businesses. Each affiant further stated that the police departments of the cities of Madison, Ridgeland, and Canton had "all adopted policies not to assist motorist[s] who have locked their keys

unless it is an emergency situation." According to the two affiants, neither the Jackson Police Department nor the Hinds County Sheriff's Department offered this service "except in emergencies."(1) The locksmiths and the sheriff argued the sheriff's motion for summary judgment before the chancellor. Near the very beginning of his argument the locksmiths' attorney stated, "It is true [the sheriff's counsel] could not find any substantive law on this issue, nor could we." (emphasis added). After counsel for both the locksmiths and the sheriff had concluded their arguments, the chancellor granted the sheriff's motion for summary judgment. The locksmiths have appealed from the final judgment "of dismissal with prejudice as a matter of law" which the chancellor entered pursuant to his granting the sheriff's motion for summary judgment. III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUE We quote verbatim the locksmiths' issue from their brief: Whether the Chancery Court erred by refusing to enjoin the Madison County Sheriff's Department from unlocking vehicles for locked out motorist[s] in non-emergency situations. In his brief, the sheriff proposes this form of the issue: "Whether the Madison County Chancery Court erred in granting the Appellee's Motion for Summary Judgment." We find the sheriff's statement of the issue which this Court must resolve to be more appropriate in the present posture of the case, although this Court recognizes that the locksmiths' issue accurately relates the consequence of the chancellor's grant of the sheriff's motion for summary judgment. A. Standard of Review for Summary Judgment A trial court's decision to grant summary judgment is reviewed de novo upon appeal. Spartan Foods Systems, Inc. v. American Nat'l Ins. Co., 582 So. 2d 399, 402 (Miss. 1991); American Legion Ladnier Post 42, Inc. v. Ocean Springs, 562 So. 2d 103, 105 (Miss. 1990); Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993). If the appellate court finds beyond a reasonable doubt that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law, it will affirm the trial court's decision to grant summary judgment. Spartan Foods, 582 So. 2d at 402; Yowell v. James Harkins Builder, Inc., 645 So. 2d 1340, 1343 (Miss. 1994). The issues of fact are not in dispute in this case. The sheriff admits that his department unlocks cars in which Madison Countians have locked their keys as a matter of policy and practice, the activity which the locksmiths seek to enjoin permanently. The sheriff's practice of unlocking cars likely "cause[s] the [locksmiths] irreparable, concrete and tangible economic injury, over and above that degree of injury caused to the average citizen." However, this Court is troubled by both the locksmiths' and the sheriff's failure to cite specific legal authority to support their respective positions on this issue. Hence, the portion of our de novo review which concerns this Court is whether the sheriff "is entitled to judgment as a matter of law." B. Summary Judgment The burden is on the movant to show that he is "entitled to judgment as a matter of law." American Legion, 562 So. 2d at 106. This is a burden of "production and persuasion;" it is not actually a

burden of proof in the true sense of the word. Yowell, 645 So. 2d at 1343. Merely establishing the absence of genuinely disputed facts will not carry the day for the summary judgment movant. The movant must also demonstrate that the applicable controlling law requires a decision in the movant's favor. Conversely, to defeat summary judgment, the nonmovant must articulate a viable legal theory entitling it to relief should it prevail on the facts at trial. 11 James Wm. Moore et al., Moore's Federal Practice,

Download Daniel Robert X Barrow v. Jessie Hopkins.pdf

Mississippi Law