Evans v. Miss. Dep't Of Human Serv. D/b/a Warren County Dep't Of Human Serv., 2009-CA-00417-COA.

• Decision Date: 01 June 2010
• Docket Number: No. 2009-CA-00417-COA.,2009-CA-00417-COA.
• Citation: 36 So.3d 463
• Parties: Clinton EVANS, Appellantv.MISSISSIPPI DEPARTMENT OF HUMAN SERVICES d/b/a Warren County Department of Human Services, Child Support Division, Appellee.
• Court: Mississippi Court of Appeals

36 So.3d 463

Clinton EVANS, Appellantv.MISSISSIPPI DEPARTMENT OF HUMAN SERVICES d/b/a Warren County Department of Human Services, Child Support Division, Appellee.

No. 2009-CA-00417-COA.

Court of Appeals of Mississippi.

June 1, 2010.

COPYRIGHT MATERIAL OMITTED

Melanie H. Morano, Patricia Peterson Smith, attorneys for appellant.

James N. Bullock, Jackson, attorney for appellee.

Before KING, C.J., ISHEE and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Clinton Evans filed suit against the Mississippi Department of Human Services, d/b/a Warren County Department of Human Services, Child Support Division (MDHS), in the Circuit Court of Warren County. Evans essentially claimed MDHS mishandled child-support funds deducted from his wages, failed to properly account for his payments, converted those funds, caused him emotional distress, and defamed him while carrying out its duties to administer his child-support obligation. The circuit judge granted MDHS's motion for summary judgment and declined to rule on several other pending motions filed by Evans and MDHS. Finding genuine issues of material fact exist regarding MDHS's negligent accounting and disbursing, we reverse and remand on these issues. We affirm the grant of summary judgment on the remaining issues.

FACTS

¶ 2. On October 8, 2003, Clinton and Qiana Evans were divorced in Louisiana, and a Louisiana district court ordered Evans to pay $800 per month in child support to Qiana. After the divorce, Qiana remained in Louisiana where she retained custody of the three children, and Evans moved to Vicksburg, Mississippi. The Louisiana child-support obligation was then registered in Mississippi.

¶ 3. In 2004, Evans's employer reduced Evans's work hours and periodically laid him off. Because Evans was no longer able to pay $800 per month, he filed a joint motion with MDHS in the Warren County Chancery Court to modify his child-support obligation. Qiana submitted an affidavit that Evans was not in arrears on his child-support payments, but the affidavit did not reflect that she agreed to the reduction. On November 15, 2004, the chancery court entered an agreed order modifying the Louisiana support order. The agreed order reduced Evans's monthly support obligation from $800 to $400. The chancery court entered its Order for Withholding on January 8, 2005, directing Evans's employer(s) to withhold the $400 monthly obligation and to remit it to MDHS.

¶ 4. A few months after entry of the agreed order, MDHS began deducting $400 in child support from Evans's wages each month. On April 6, 2005, an Assistant District Attorney with Louisiana's 21st Judicial District, faxed a letter to a MDHS attorney, seeking clarification about the reduction in Evans's support obligation. The letter noted that Qiana had complained about the reduction. The State of Louisiana also sought information about Mississippi's authority for modifying the Louisiana support order from $800 to $400 per month.

¶ 5. Docket entries reflect that after receiving the inquiry from Louisiana, on June 27, 2005, MDHS filed a motion in the Warren County Chancery Court to set aside the agreed order. MDHS ultimately filed three motions in the chancery court arguing the November 15, 2004, agreed order was invalid because Qiana did not consent to modification as required by the Uniform Interstate Family Support Act (UIFSA). See Miss.Code Ann. § 93-25-101 (Rev.2004). MDHS claimed the agreed order was void as a matter of law; therefore, Evans still owed $800 per month pursuant to the valid Louisiana order. The chancellor, however, refused to hear the motions because Evans had not been served with process.

¶ 6. Records indicate MDHS enforced the Mississippi agreed order until termination of Evans's support obligation in June 2007. Thus, MDHS required $400 be withheld from Evans's wages each month. The Louisiana Department of Social Services (LDSS), however, maintained that its original $800 support order controlled.

¶ 7. On May 18, 2007, Evans filed a complaint for declaratory judgment against MDHS in the Chancery Court of Warren County seeking to enforce the $400 agreed order. He also sought monetary damages from MDHS for the infliction of emotional distress he alleged resulted from MDHS's mishandling of his child-support obligation. MDHS responded that Evans failed to comply with the Mississippi Tort Claims Act's (MTCA) notice requirements. The chancellor agreed and dismissed Evans's claims without prejudice.

¶ 8. On June 4, 2007, a Louisiana district court entered an order awarding physical custody of the children to Evans. It also terminated Evans's child-support obligation and determined he was not in arrears on his support obligation.

¶ 9. Thereafter, Evans sued MDHS under the MTCA in the Warren County Circuit Court. He alleged MDHS: (1) wrongly caused the suspension of his driver's license, encumbrance of his bank account, interception of his tax return, and damaged his credit history; (2) intentionally or negligently inflicted emotional distress upon him; (3) fraudulently converted his child-support obligations to its own use; (4) failed to properly account or credit him for child-support obligations deducted from his wages and did not transmit payments to Qiana and his children. MDHS moved for summary judgment claiming it was generally immune from Evans's claims under the MTCA. The circuit court granted summary judgment and found that MDHS did not breach its duty of ordinary care in abiding by a lawful order of a foreign jurisdiction-the $800 per month Louisiana support order-which was registered in Mississippi and had not been properly modified by the Mississippi chancery court. Accordingly, the circuit court held that MDHS was immune from liability under Mississippi Code Annotated section 11-46-9(1)(b) (Supp.2009). The circuit court reasoned it could not be shown that MDHS failed to act with ordinary care in directing the withholdings from Evans's wages and for imposing statutorily permitted sanctions relating to Evans's delinquent support payments. Evans now appeals.

STANDARD OF REVIEW

¶ 10. This Court applies a de novo standard of review to the grant of summary judgment by a trial court. Hill v. Carroll County, 17 So.3d 1081, 1084 (¶ 7) (Miss.2009) (citing Channel v. Loyacono, 954 So.2d 415, 420 (¶ 12) (Miss.2007)). Under Mississippi Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

¶ 11. In Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the United States Supreme Court explained the application of the identical Rule 56(c) of the Federal Rules of Civil Procedure. The Supreme Court stated:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Id.

¶ 12. MDHS, as the movant, “has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, [it] is entitled to judgment as a matter of law.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). As the nonmoving party, Evans must support his claim with more than a “mere scintilla of colorable evidence[.]” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Instead, his evidence must be such that a fair-minded jury could return a favorable verdict. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). “[B]are assertions” are insufficient to avoid summary judgment, and the non-movant may not rest upon mere allegations or denials in its pleadings. Watson v. Johnson, 848 So.2d 873, 878 (¶ 18) (Miss.Ct.App.2002) (citing Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996)).

DISCUSSION

I. MTCA

¶ 13. The MTCA provides the exclusive remedy against a governmental entity or employee for an act or omission giving rise to the suit. Miss.Code Ann. § 11-46-7(1) (Rev.2002). The MTCA provides the state and its political subdivisions immunity. However, that immunity is waived in claims for monetary damages arising from torts committed by government entities or employees while acting in the scope of their employment to the extent set forth in the MTCA. Miss.Code Ann. §§ 11-46-3(1), 11-46-5(1) (Rev.2002). This waiver of immunity is subject to exceptions. Miss.Code Ann. § 11-46-9. Mississippi Code Annotated section 11-46-9 provides in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

....

(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

....

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be

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