Preview:

IN THE SUPREME COURT OF MISSISSIPPI NO. 94-CA-01219-SCT MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY/MISSISSIPPI HIGHWAY SAFETY PATROL, CAPTAIN JOHHNY E. KERR, AND MASTER SARGEANT JOE EDDIE MCFERRIN, JOINTLY AND SEVERALLY v. ROBERT L. AUBUCHON THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED: 11/21/94 HON. BARRY W. FORD LEE COUNTY CIRCUIT COURT T. HUNT COLE MICHAEL G. THORNE CIVIL - STATE BOARDS AND AGENCIES (OTHER THAN WORKER'S COMP) REVERSED AND RENDERED - 3/13/97

BEFORE PRATHER, P.J., PITTMAN AND SMITH, JJ. SMITH, JUSTICE, FOR THE COURT:

Sergeant Robert L. Aubuchon was a state trooper with the Mississippi Highway Safety Patrol for twenty-four years. During 1992, Aubuchon was brought before a MHSP tribunal for disciplinary proceedings after which a three-day suspension was imposed. Aubuchon appealed his suspension to the Employee Appeals Board and later filed a civil suit for wrongful termination, breach of contract, and defamation against the Department of Public of Safety (hereinafter "DPS") and the Mississippi Highway Safety Patrol (hereinafter "MHSP"). DPS/MHSP moved for summary judgment alleging inter alia that Aubuchon's suit is barred by the doctrine of sovereign immunity; the statute of limitations; and the failure to exhaust his administrative remedies. The lower court denied the motion for summary judgment. Aggrieved, DPS/MHSP now appeal to this Court.

Because we find that the claims asserted by Aubuchon are barred on several bases we hold that the trial court erred in denying the motion for summary judgment by DPS/MHSP. FACTS Sergeant Robert L. Aubuchon is a twenty-four year veteran of the Mississippi Highway Safety Patrol having joined the patrol on March 15, 1969. On March 18, 1992 disciplinary proceedings were instituted against Aubuchon resulting in a three-day suspension. Aubuchon appealed the suspension to the Mississippi Employee Appeals Board after which he entered into an Agreed Order on October 5, 1992 and agreed to tender his resignation in exchange for the reinstatement of the three (3) day suspension. Aubuchon was later paid for the three-day period during which he was on suspension.(1) The Order also provided that annual leave and comp time would be handled according to state law. Aubuchon alleges that the true basis for the disciplinary proceedings arose after he protested when Captain Johnny E. Kerr and Master Sergeant Joe Eddie McFerrin requested that he dismiss two speeding tickets issued to Vera Q. Feather during 1991/1992 or face a transfer to Benton County. Lee County Justice Court records reflect notations by Aubuchon that the citations were dismissed on January 28, 1992 as "directed by Captain Johnny Kerr and Master Sergeant Jo McFerrin to dismiss or be transferred." Aubuchon alleges after the ticket incident he was placed under surveillance following a complaint by an unidentified individual. Aubuchon was allegedly observed at home during working hours. Following the disciplinary proceedings but prior to the EAB appeal/Agreed Order, Aubuchon gave written notice of his retirement. Aubuchon requested that his retirement become effective on May 1, 1993 with his last working day to be July 31, 1992. Aubuchon wished to exhaust his accumulated personal leave prior to his effective date of retirement. Colonel Jay F. Clark received Aubuchon's letter and responded with appreciation and thanks to Aubuchon for his many years of service. However, on September 16, 1992, Aubuchon received notice from Jim Ingram, Commissioner of Public Safety, that the prior practice followed by MHSP of allowing retiring employees "to take amounts of personal leave in excess of thirty (30) days is contrary to the law. . . ." Aubuchon was advised that he could retire effective October 31, 1992; be terminated; or return to duty with the patrol. Ingram's advice stemmed from meetings with the State Auditor's Office and an Attorney General's Opinion. On December 7, 1993, Aubuchon filed a complaint in the Circuit Court of Lee County against DPS/MHSP alleging violations of an "employment contract" resulting in miscalculation and loss of retirement benefits. DPS/MHSP moved for summary judgment on January 25, 1994. Prior to a ruling on that motion, Aubuchon filed an amended complaint on July 6, 1994 against DPS/MHSP, Captain Johnny E. Kerr, and Master Sergeant Joe Eddie McFerrin alleging wrongful termination; breach of express and implied contract of employment; and slander. On August 1, 1994, the defendants moved for summary judgment on the amended complaint and for Rule 11 Sanctions. On November 21, 1994, Honorable Barry W. Ford denied the Defendant's motion. Aggrieved, DPS/MHSP now appeal to this Court. DISCUSSION OF LAW

I. WHETHER THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY IS PROTECTED FROM SUIT BY SOVEREIGN IMMUNITY. This Court has repeatedly set forth the standard of review for summary judgment motions: The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56 (c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter and another says the opposite. In addition, the burden of demonstrating that no genuine issues of fact exists is on the moving party. That is the non-movant would be given the benefit of the doubt. (citations omitted). Aetna Cas. and Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss.1996)(citing Mantachie Nat. Gas v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss.1992)). Sovereign immunity has been a source of great debate in Mississippi. This Court abolished the common law doctrine of sovereign immunity in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss.1982). In Pruett, this Court "recognize[d] that the judiciary is no longer the branch of government to supervise and control the extent to which persons with rightful claims against the sovereign may propound those claims." 421 So. 2d at 1051. In Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 889 (Miss.1994), this Court characterized Pruett as "a mandate to the Legislature to assume full responsibility for the regulation of sovereign immunity; that is, an invitation for 'statutory sovereign immunity'." The Legislature accepted this invitation and soon "responded by enacting the 'Sovereign Immunity Act of 1984.'" McKay v. Boyd Const. Co., Inc., 571 So. 2d 916 (Miss.1990). This Act was codified as Miss. Code Ann.

Download Mississippi Department of Public Safety v. Robert L. Aubuchon.pdf

Mississippi Law