Wertz v. Ingalls Shipbuilding, Inc.

Decision Date28 November 2000
Docket NumberNo. 1999-CA-00048-COA.,1999-CA-00048-COA.
Citation790 So.2d 841
PartiesJames C. WERTZ, Appellant v. INGALLS SHIPBUILDING INC., Appellee.
CourtMississippi Court of Appeals

Jim Waide, David Chandler, Victor Israel Fleitas, Tupelo, Attorneys for Appellant.

Robert J. Ariatti Jr., William James Powers Jr., Paul Brooks Eason, Kathryn Russell Gilchrist, Jackson, Attorneys for Appellee.

BEFORE KING, P.J., LEE, AND MYERS, JJ.

KING, P.J., for the Court:

¶ 1. This appeal arises from the Jackson County Circuit Court's judgment sustaining Ingalls Shipbuilding, Inc.'s (Ingalls) motion for summary judgment. The circuit court found that James Wertz's claim for wrongful discharge was barred by Miss.Code Ann. § 15-1-49 (Rev.1995) and the claim for tortious interference with employment was barred by Miss.Code Ann § 15-1-35 (Rev.1995). The court further found that, in light of the evidence submitted by the parties, the savings statute, Miss.Code Ann. § 15-1-69 (Rev.1995), was inapplicable. Aggrieved by the decision of the circuit court, Wertz raises the following issues on appeal: 1) whether the circuit court erred in dismissing the appellant's claims based on the statute of limitations pursuant to Miss.Code Ann. § 15-1-69, and 2) whether genuine issues of material fact exist regarding the appellant's claims for wrongful discharge in violation of public policy and tortious interference with contract.

FACTS

¶ 2. James Wertz was hired by Ingalls in 1991 as an engineer and continued to work there until he was laid off in the fall of 1993. This lay off was ostensibly due to a reduction in the work force. Ingalls, as a marine contractor, built ships for the United States Navy. In March of 1993, Wertz reported to a Department of Defense representative that Ingalls was unlawfully failing to protect classified information. Wertz's charges were reported to Ingalls's director of security, Alvin Downs. The Department of Defense investigated Wertz's allegations of a security breach by Ingalls and determined them to be unfounded. Following this report, by memo dated May 7, 1993, Ingalls revoked Wertz's security clearance.

¶ 3. Ingalls conducted an annual evaluation of the employees. In his March 1993 evaluation, Wertz was described as an acceptable employee who "fully meets expectations." In an evaluation performed in August, approximately five months later, and subsequent to the allegation of a security breach, Wertz's performance was downgraded to "needs improvement." After this evaluation, Wertz was laid off allegedly due to a reduction in force.

¶ 4. In 1994 Wertz was employed by CDI Marine Company (CDI), a subcontractor for Ingalls. CDI assigned Wertz to work at Ingalls's facility. Ingalls, through Downs, its security director, informed CDI that Wertz was banned from Ingalls's facility. CDI removed Wertz and laid him off alleging a lack of work. On November 15, 1995, Wertz filed suit in the United States District Court for the Southern District of Mississippi, charging Ingalls with a retaliatory layoff and interference with an employment contract. Wertz, claiming to be a citizen of Louisiana, alleged that federal jurisdiction was appropriate because of diversity.

¶ 5. The district court conducted an evidentiary hearing on March 27, 1997. That court held that Wertz was a Mississippi resident when his lawsuit was filed, and that the federal court lacked diversity and subject matter jurisdiction. Eleven days after having his action dismissed in federal court, Wertz refiled in Jackson County Circuit Court. The Jackson County Circuit Court granted Ingalls a summary judgment, based upon this action being time barred, pursuant to Miss.Code Ann. § 15-1-49 (Rev.1995) and Miss.Code Ann § 15-1-35 (Rev.1995). Wertz has appealed that grant of summary judgment.

ANALYSIS AND ISSUES

I.

Whether the circuit court erred in dismissing the appellant's claims based on the statute of limitations pursuant to Miss.Code Ann. § 15-1-69.

¶ 6. Wertz argues that his cause of action is permitted pursuant to Miss.Code Ann. § 15-1-691 and that the circuit court erred in finding it inapplicable to this case. He contends that section 15-1-69 permits an action, dismissed for lack of subject matter jurisdiction in federal court, to be refiled in a Mississippi court within one year of dismissal, and the failure to apply this statute was manifest and grave error.

¶ 7. Miss.Code Ann. § 15-1-69, the savings statute, allows a properly filed action, which has been abated or avoided for any matter of form, to be refiled in the proper court within one year after the abatement or reversal of the original action. "Matters of form referred to in the savings statute may include orders of dismissal for lack of jurisdiction." Ryan v. Wardlaw, 382 So.2d 1078, 1079 (Miss. 1980). See also Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 712 (1915). One of the designs of the savings statute is to protect parties who have mistakenly chosen the wrong forum in which to bring their actions. Hawkins, 69 So. at 712. Dismissal of a suit filed in federal court within the limitation period for lack of jurisdiction is a dismissal for matter of form within section 15-1-69. Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So.2d 812, 814 (1948). The plaintiff, however, must have exercised good faith in filing the first action in the wrong court. Hawkins, 69 So. at 712.

¶ 8. Ingalls laid Wertz off on October 8, 1993, and CDI laid him off on October 15, 1994. Wertz moved to Louisiana on November 14, 1995 to establish diversity to file his claim in federal court. On November 15, 1995 Wertz filed wrongful discharge and intentional interference with contract claims in federal district court. Both claims were dismissed by the district court for lack of subject matter jurisdiction on March 27, 1997. Wertz subsequently filed the same claims in state circuit court on April 8, 1997. Ingalls filed a motion for summary judgment asserting that the statute of limitations had run on Wertz's claims. The court granted summary judgment in favor of Ingalls. Pursuant to section 15-1-49, the statute of limitation for claims of intentional interference with contract and wrongful discharge, Wertz had three years within which to file his claims. See Nichols v. Tri-State Brick and Tile, 608 So.2d 324, 332-33 (Miss. 1992)

. Although Wertz's wrongful discharge claim was filed in federal court within the three year period of limitation, it was not refiled in state court within the requisite three year period. The savings statute, section 15-1-69, is only available when the cause in good faith is erroneously misfiled. See Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 712 (1915). The federal district court and the Jackson County Circuit Court both found that Wertz moved to Louisiana in an attempt to establish diversity jurisdiction and did not possess a good faith intent to establish residence. This matter involves a finding of fact by the trial court. A trial court's finding of fact must be accepted if supported by substantial evidence. Herring Gas Co. v. Whiddon, 616 So.2d 892, 893 (Miss.1993). There is ample evidence in the record upon which the trial court could find a lack of good faith by Wertz and therefore hold section 15-1-69 inapplicable to his claim of wrongful discharge. Accordingly, the grant of summary judgment was not error.

¶ 9. Wertz's intentional interference with contract claim was filed within the three year period of limitation in section 15-1-49. Even after refiling the intentional interference with contract claim in the circuit court, it was within the three year statute of limitations. Therefore, summary judgment, based upon the statute of limitation, was improper on the intentional interference with contract claim.

II.

Whether genuine issues of material fact exist regarding the appellant's claims for wrongful discharge in violation of public policy and tortious interference with contract.

¶ 10. We have determined that Wertz failed to meet the statute of limitation on his wrongful discharge claim, rendering summary judgment proper, but did meet the statute of limitation on his tortious interference with contract claim. We are therefore called upon to determine whether there existed any genuine issue of material fact related to that claim, which would render the grant of summary judgment improper.

¶ 11. Our review of a trial court's grant of summary judgment is de novo. Seymour v. Brunswick Corp., 655 So.2d 892, 894 (Miss.1995)

(citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988)). In doing so, we review all evidentiary matters before us in the record: affidavits, depositions, admissions, interrogatories, etc. Seymour, 655 So.2d at 894. The evidence is viewed in the light most favorable to the non-moving parties, and they are given the benefit of every reasonable doubt. Mississippi Ins. Guar. Ass'n v. Harkins & Co., 652 So.2d 732, 735 (Miss.1995). Summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Id. To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the rule. Baptiste v. Jitney Jungle Stores of Am., 651 So.2d 1063, 1065 (Miss.1995) (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)). Having done so, this Court finds that there were material issues of disputed fact.

¶ 12. An action for tortious interference with a contract ordinarily lies when all of the following elements are present: 1) intentional and willful acts; 2) done to cause damages to the plaintiffs in their lawful business; 3) done with the purpose of causing damage and loss, without right or justifiable cause on the part of the defendant; and 4) actual loss occurs. Collins v. Collins, 625 So.2d 786, 790 (Miss.1993). See...

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