BUCKEL v. CHANEY

• Decision Date: 04 November 2010
• Docket Number: No. 2009-CA-01602-SCT.,2009-CA-01602-SCT.
• Citation: 47 So.3d 148
• Parties: Kevin BUCKEL v. Mike CHANEY, Commissioner of Insurance.
• Court: Mississippi Supreme Court

47 So.3d 148

Kevin BUCKEL

v.Mike CHANEY, Commissioner of Insurance.

No. 2009-CA-01602-SCT.

Supreme Court of Mississippi.

Nov. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Edward Gibson, attorney for appellant.

Office of the Attorney General by Lowry Christopher Lomax, Lisa Louise Colonias, attorneys for appellee.

Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.

CARLSON, Presiding Justice, for the Court:

¶ 1. Kevin Buckel has appealed to this Court from an order granting summary judgment entered by the Chancery Court for the First Judicial District of Hinds County. Buckel asserts that the chancery court inappropriately assigned evidentiary value to an affidavit in support of the motion for summary judgment filed by the Mississippi Commissioner of Insurance and that the chancery court erred in its finding that Buckel's rebuttal evidence was insufficient to avoid a grant of summary judgment. Buckel further contends that the chancery court erred by holding that his public-records request was improper under the Mississippi Public Records Act and that Mississippi Code Section 83-5-209(7) (Rev.1999) exempted from disclosure the records Buckel had requested. Finding Buckel's arguments to be unpersuasive and the chancellor's findings to be firmly rooted in the law, we affirm the chancery court judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On January 4, 2009, Buckel submitted a public-records request under the Mississippi Public Records Act to the Mississippi Insurance Department ¹ (“MID”):

This is to request any data in the possession of MID concerning homeowner insurance claims as a result of Hurricane Katrina, excluding Wind Pool and Flood Claims. Specifically, I would like to know the (1) total number of homeowner claims filed after the storm; (2) the total “insured amount claimed” filed by homeowners after the storm; (3) the total amount paid out on those homeowner claims after the storm; (4) the total amount “not paid” on the homeowner claims after the storm. If this information is not available, I respectfully request your office compile this information for public consumption from the insurance companies that received homeowner claims regulated by MID as a result of Hurricane Katrina.

Having not received a response to this request by January 16, 2009, Buckel again wrote to MID, expressing his desire to appeal MID's alleged failure to respond to his earlier request. However, MID did timely respond by letter on January 26, 2009, under the provisions of Mississippi Code Section 25-61-5 (Rev.2010), and informed Buckel that MID had searched for the requested documents but did not possess them. MID expressed further to Buckel that the Mississippi Public Records Act required only the production of existing records in its possession and did not require a department to compile information. MID added that these documents, in any event, were not viewable under an exemption to the Public Records Act.

¶ 3. Buckel subsequently filed pro se for judicial review in the Harrison County Chancery Court, and the parties agreed to transfer venue to the Hinds County Chancery Court. In his complaint, Buckel sought information not specifically set forth in his original records request. For instance, Buckel requested information relating to MID's release on October 29, 2008, of its findings on the State Farm Conduct Exam. ² Buckel specifically requested “a copy of [the] claim information used by the examination team” in compiling the State Farm Conduct Exam. He also requested “any documentation used by former Commissioner [George] Dale that resulted in the information published” in press releases occurring on January 30, 2006, and November 21, 2005, as well as in a news story in which Commissioner Dale was quoted on June 22, 2006. The press releases ³ and news story ⁴ contained detailed information regarding the number of claims filed in specific counties and total amounts in claims paid.

¶ 4. After the Commissioner had answered and pleaded his affirmative defenses, the Commissioner filed a motion for summary judgment. Buckel timely responded, and the chancellor conducted a summary judgment hearing. The Commissioner put forth two arguments in support of his motion: (1) that MID did not possess the public records initially requested; and (2) that the public-records request failed to include documents underlying the State Farm Market Conduct Report and that these documents were exempt under Mississippi Code Section 83-5-209(7) (Rev.1999).

¶ 5. In support of his first argument, the Commissioner provided an affidavit of MID employee Donna Cromeans in which she swore based on personal knowledge that she “undertook and supervised a diligent search of the files and records held by MID” and that the records requested by Buckel “are not in the possession, custody or control of” MID. Buckel, however, has argued for the first time on appeal that the chancellor erred by finding evidentiary value in this affidavit, because Cromeans was an interested witness.

¶ 6. In response to the Commissioner's denial of having possession of the records requested, Buckel presented two arguments at the summary judgment hearing: (1) that the two press releases and single news story, relating to homeowners' claims filed and paid after Katrina, contained “exact detailed information,” ⁵ evidencing that MID was “compiling” this information, and, therefore, was in possession of the information requested and (2) that the State Farm Market Conduct Report indicated that MID was in possession of Buckel's requested documents because the Report stated that Commissioner Dale had subpoenaed 43,000 files from State Farm. ⁶ Buckel also contended that his initial records request did include the information underlying the Market Conduct Report, although not specifically identified, and that the Mississippi Public Records Act did not exempt this underlying statistical information.

¶ 7. On September 2, 2009, the chancellor entered an order granting summary judgment, holding that (1) no genuine issue of material fact existed to support Buckel's claims; (2) neither the Commissioner nor MID possessed the records requested by Buckel; and (3) the documents demanded by Buckel in his complaint were not properly requested and were nonetheless protected by Mississippi Code Section 83-5-209(7) (Rev.1999), as further interpreted in pari materia by Mississippi Department of Insurance (MDOI) Regulation 83-1.6(b)(2).

¶ 8. On appeal, Buckel seeks to reverse this judgment and have his case remanded to the chancery court for further proceedings. For the sake of today's discussion, we combine and restate the critical issues before us.

DISCUSSION

[1] [2] ¶ 9. The standard of review of a trial court's grant of a motion for summary judgment is de novo. Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (Miss.2010) (citing Burleson v. Lathem, 968 So.2d 930, 932 (Miss.2007) (citations omitted)). Accordingly, this Court must employ “a factual review tantamount to that of the trial court when considering evidentiary matters in the record.” Moss v. Batesville Casket Co., 935 So.2d 393, 397 (Miss.2006) (quoting Williams v. Bennett, 921 So.2d 1269, 1272 (Miss.2006)).

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE COMMISSIONER'S MOTION FOR SUMMARY JUDGMENT.

[3] [4] [5] [6] ¶ 10. The party requesting summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Watson Quality Ford, Inc. v. Casanova, 999 So.2d 830, 833 (Miss.2008) (citing Estate of Johnson v. Chatelain, 943 So.2d 684, 686 (Miss.2006)). When the moving party has supported its motion in accordance with Mississippi Rule of Civil Procedure 56, “an adverse party may not rest upon the mere allegations or denials of his pleadings; his response ... must set forth specific facts showing there is a genuine issue for trial.” Miss. R. Civ. P. 56(e). Moreover, summary judgment “is appropriate when the non-moving party has failed to ‘make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.’ ” Watson Quality Ford, Inc., 999 So.2d at 832 (quoting Bullard v. Guardian Life Ins. Co., 941 So.2d 812, 814 (Miss.2006)). “Mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983) (citations omitted). “Pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987).

¶ 11. Buckel contends that the chancellor erred in granting summary judgment for two reasons. First, the chancellor incorrectly assigned evidentiary value to the affidavit of an interested witness. Second, the two press releases, the news story, and the Market Conduct Report presented in response to the Commissioner's motion for summary judgment created a genuine issue of material fact as to whether the Commissioner possessed the documents Buckel had requested.

A. Buckel's Argument against Donna Cromeans's Affidavit.

[7] ¶ 12. To satisfy his burden as the movant for summary judgment, the Commissioner had “the burden of demonstrating there is no genuine issue of material fact....” Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So.2d 969, 975 (Miss.2007) (citations omitted). The Commissioner sought to establish the nonexistence of an element essential to Buckel's case. Watson Quality Ford, Inc., 999 So.2d at 833 (citing Bullard, 941 So.2d at 814). Specifically, under Mississippi Code Section 25-61-3(b) (Rev.2010), the Commissioner attempted to set forth facts showing that MID did not “possess” the public records Buckel had requested.

“Public records” shall mean all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other...