Stewart v. Southeast Foods, Inc., 92-CA-01236-SCT

• Decision Date: 05 December 1996
• Docket Number: No. 92-CA-01236-SCT,92-CA-01236-SCT
• Citation: 688 So.2d 733
• Parties: Lillie STEWART v. SOUTHEAST FOODS, INC. d/b/a Sunflower Foods Stores.
• Court: Mississippi Supreme Court

Page 733

688 So.2d 733

Lillie STEWART v. SOUTHEAST FOODS, INC. d/b/a Sunflower Foods Stores.

No. 92-CA-01236-SCT.

Supreme Court of Mississippi.

Dec. 5, 1996.

William A. Lanigan, III, Gilmer Law Firm, Jackson, George F. Hollowell, Jr., Hollowell & Kelly, Greenville, for Appellant.

Bradford L. Henry, Tutor Henry & Edwards, Tupelo, for Appellee.

Before PRATHER, P.J., and SMITH and MILLS, JJ.

PRATHER, Presiding Justice, for the Court:

I. STATEMENT OF THE CASE

On August 24, 1991, Lillie Stewart ("Stewart") was arrested and charged with assault and battery by Leroy Wiley ("Wiley"), a store security guard for Southeast Foods,

Inc. ("Southeast"). Municipal Court Judge Earl Solomon, Jr., dismissed all charges against Stewart on September 20, 1991, and Stewart subsequently filed a suit for malicious prosecution against Southeast in the Circuit Court of Washington County. On September 4, 1992, Southeast submitted, in support of a summary judgment motion, an affidavit executed by Judge Solomon in which Solomon stated that he had actually considered Stewart to be guilty of the crime in question but had dismissed the charges in order to be lenient. Circuit Judge Gray Evans overruled the objections to the affidavit, and he granted Southeast's motion for summary judgment based in part upon the affidavit of Judge Solomon. Stewart timely appealed from said judgment and assigns the following issues:

ISSUES

I. WHETHER THE CIRCUIT JUDGE WAS IN ERROR WHEN HE GRANTED THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED IN PART ON THE AFFIDAVIT OF MUNICIPAL JUDGE SOLOMON.

II. WHETHER THE ISSUE OF WHETHER WILEY ACTED WITH MALICE IN FILING CHARGES AGAINST STEWART SHOULD HAVE BEEN SUBMITTED TO THE JURY RATHER THAN BEING RULED UPON BY JUDGE EVANS IN HIS SUMMARY JUDGMENT RULING.

II. STATEMENT OF THE FACTS

The present case involves an incident in which Leroy Wiley, an employee of Sunflower Food Store, detained Lillie Stewart, Appellant herein, and several acquaintances on suspicion of shoplifting. Wiley led the suspected shoplifters to the back of the store, whereupon Stewart and Wiley became involved in the physical altercation which gave rise to the present lawsuit. It is the contention of Stewart that Wiley provoked the altercation by poking Stewart in the chest, while the appellees claim that Stewart assaulted Wiley without provocation. At any rate, it is undisputed that Wiley placed Stewart in handcuffs following the altercation and filed charges against Stewart for assault and battery.

About a month later, on September 20, 1991, Washington County Municipal Court Judge Earl Solomon, Jr. tried Stewart on the charges of assault and battery. According to an affidavit executed several months later, Judge Solomon felt that Stewart was guilty of the crime in question, but he nevertheless decided to dismiss the charges, given that Stewart had no criminal record and had shown remorse over her actions.

On October 30, 1991, Stewart filed suit against Wiley's employer, Southeast, for malicious prosecution. Following discovery, Circuit Court Judge Evans granted Southeast's motion for summary judgment, based in part upon the aforementioned affidavit of Judge Solomon. Stewart had objected to the admission of the affidavit on a number of grounds, including the grounds that a judge is not allowed to impeach his verdict after the fact, as well as on the grounds that the affidavit constituted improper hearsay and opinion evidence. In addition, Stewart contends that Judge Evans was incorrect in ruling that Stewart had presented no evidence that the charges against her were filed with malice, and that this issue should have been presented to a jury.

I. WAS THE CIRCUIT COURT IN ERROR WHEN IT GRANTED SOUTHEAST FOOD'S MOTION FOR SUMMARY JUDGMENT BASED IN PART UPON THE AFFIDAVIT OF JUDGE SOLOMON?

A. Is the affidavit hearsay ?

Stewart objects that the affidavit constitutes impermissible hearsay evidence which should have been excluded on this basis. Clearly, most, if not all, affidavits are hearsay, but they are nevertheless properly considered on summary judgment motions as long as they are based on personal knowledge and set forth facts such as would be admissible in evidence. ¹ M.R.C.P. 56(e). The hearsay objection would be valid if there were hearsay statements within the affidavit itself, but the affidavit in question contains no "out of court statements offered to prove the truth of the matter asserted." The affidavit merely contains the factual statements of Judge Solomon regarding his true intentions and state of mind in dismissing the charges against Stewart. Stewart makes a special objection to paragraph four of the affidavit on grounds of hearsay, but a reading of this paragraph reveals only the observations of Judge Solomon regarding his dismissal of charges against Stewart. To wit:

I tried Lillie Stewart on the charge of assault and battery on September 20, 1991 in Municipal Court for the city of Greenville, Mississippi. I, sitting as trier of fact, dismissed the charges against Lillie Stewart. In my judgment, Lillie Stewart was actually guilty on the charge of assault and battery but, I was trying to give her a break by not convicting her due to the fact that she was too emotionally involved and I did not want her to have a criminal record as a result of this incident.

If an affiant's personal observations and recollections in an affidavit were considered to be inadmissible, then no affidavits could be used by judges in summary judgment ruling. The hearsay objection is without merit and was properly overruled by the trial judge.

B. Whether Judge Earl Solomon should have been allowed to

testify to impeach a verdict he rendered.

Stewart asserts that Judge Solomon's affidavit should not have been considered by Judge Evans in the subsequent civil trial because M.R.E. 606(b), "Competency of Juror as Witness", does not allow a jury to impeach its verdict. Stewart argues that this rule should be extended to a judge such as Solomon, where he was serving as the trier of fact in a trial proceeding. Stewart makes note of cases interpreting Rule 606(b) such as Ratliff v. Nail, 231 So.2d 798 (Miss.1970), which do in fact prohibit a juror from testifying to impeach a verdict which they rendered. Stewart then asserts in her brief that "clearly Rule 606(b) is not limited to the jury but extends to all triers of fact; judges; juries and arbiters." This assertion by Stewart is without basis. A reading of Rule 606(b) indicates that the Rule prohibits a "juror" from testifying during an "inquiry into the validity of a verdict or indictment."

Had the drafters of the rule wanted to use broader language such as "trier of fact," they could have easily done so. Furthermore, M.R.E. 605, "Competency of Judge as Witness" merely states that the "judge presiding at the trial may not testify in that trial (emphasis added) as a witness. No objection need be made to preserve the point." Rule 605 is the counterpart of Rule 606 applicable to the competency of judges, and Rule 605 is almost identical to Rule 606(a) in that said provisions forbid judges and jurors from testifying at the trial in which the judge or jurors are presently serving. Very conspicuous in its absence, however, is any language in Rule 605 which forbids a judge from testifying in a subsequent inquiry into the verdict, as is the case with jurors in Rule 606(b). Given the absence of such a provision, it can be inferred that the drafters of said rule understood that there were certain extraordinary situations in which a judge may be called upon to explain his verdict or rulings in a subsequent proceeding.

In Kitchens v. State, 253 Miss. 734, 179 So.2d 13 (1965), this Court allowed the testimony of a county court judge in a subsequent inquiry into a verdict of not guilty which he had entered by rubber-stamping a discharge of the defendant. The judge testified that he had mistakenly entered the "not guilty" verdict and that "he entered the rubber stamp order on the record simply to get the case off his docket." Kitchens, 179 So.2d at 14. This Court allowed the testimony of the judge and affirmed the conviction of the defendant in question in spite of the Judge's accidental discharge of the defendant. Id. at 15.

Thus, there is clearly authority permitting a judge to testify as to the true nature of his verdict. This Court held in Page v. Wiggins, 595 So.2d 1291 (Miss.1992) that a municipal judge could not establish a record of testimony by affidavit, but the statutory prohibition against a municipal court being a court of record is limited to records of testimony. See: Page, 595 So.2d at 1295; § 21-23-7. Stewart argued before the trial court that the municipal court was not a court of record, and that the docket transcript with the "dismissal" written on it should serve as the sole record of the case. This appears to be a valid argument, but it naturally follows that a municipal judge who has statutory authority to issue a written judgment should have the authority to clarify said judgment when the meaning of said judgment is subject to dispute. Accordingly, this point of error is without merit.

C. Whether the affidavit of Greenville, Mississippi

Municipal Judge Earl Solomon was competent

testimony upon which to grant the

defendant's summary judgment motion.

Stewart next contends that the affidavit of Judge Solomon constitutes impermissible opinion evidence which sets forth a legal conclusion that Stewart is guilty of the crime. Stewart asserts that the admission into evidence of the affidavit was improper because, in the affidavit, Judge Solomon merely asserts his opinion that Stewart is guilty of the crime in question rather than providing information as to the facts of the case. Stewart further asserts that this testimony sets forth an impermissible legal conclusion regarding the guilt of Stewart.

Mississippi Rules of Evidence 56(e), dealing with the use of affidavit testimony in summary...