Williamson ex rel. Williamson v. Keith, No. 1999-CA-01870-SCT.

• Decision Date: 07 June 2001
• Docket Number: No. 1999-CA-01870-SCT.
• Citation: 786 So.2d 390
• Parties: Kelli L. WILLIAMSON, a minor, by and through her legal and natural guardian, mother and next friend, Cynthia D. WILLIAMSON and Cynthia D. Williamson, individually v. James A. KEITH.
• Court: Mississippi Supreme Court

786 So.2d 390

Kelli L. WILLIAMSON, a minor, by and through her legal and natural guardian, mother and next friend, Cynthia D. WILLIAMSON and Cynthia D. Williamson, individually v. James A. KEITH.

No. 1999-CA-01870-SCT.

Supreme Court of Mississippi.

June 7, 2001.

Paul E. Rogers, Jackson, Attorney for Appellant.

Robert Lewis Gibbs, Jackson, Attorney for Appellee.

EN BANC.

PITTMAN, Chief Justice, for the Court:

¶ 1. Kelli L. Williamson, a minor, by and through her legal and natural guardian, mother and next friend, Cynthia D. Williamson (the "Williamsons"), filed a complaint in the Circuit Court of Madison County against James A. Keith ("Keith") and Beth Richmond ("Richmond"). The complaint alleged that there was an abuse of process, violation of due process and invasion of privacy when Keith and Richmond subpoenaed Kelli's medical records from the Shea Clinic in Memphis, Tennessee.

¶ 2. Richmond filed a motion to dismiss. Later the Williamsons voluntarily dismissed Richmond and continued proceedings only against Keith. Keith subsequently filed a motion for summary judgment asserting that the Williamsons had failed to provide evidence of the existence of elements necessary to their claims of abuse of process and invasion of privacy. Keith's motion also contended that the due process clause of the federal and state constitutions cannot be invoked against Keith because he is a private citizen. The trial court granted summary judgment in favor of Keith, dismissing the complaint.

¶ 3. The Williamsons timely perfected this appeal.

FACTS

¶ 4. Kelli is a special education student enrolled in the Madison County School District (the "School District"). In April, 1994, Kelli received a cochlear implant (a surgically implanted assistive hearing device) before she enrolled in the Madison County School District months later. In 1998, Kelli lost the magnet, coil, and cord components of her cochlear implant somewhere between school and home. The Williamsons demanded reimbursement from the School District for the lost components on the ground that the implant was an assistive technology device, in conformity with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-87, which enabled Kelli to receive the full benefit of her education. The School District denied that the implant was an assistive technology device, but rather a personal device, and refused to provide compensation for the missing components.

¶ 5. As a result of the School District's decision not to pay for the lost components, the Mississippi Protection and Advocacy System, Inc. ("P & A") requested a due process hearing on behalf of Kelli to challenge the School District's refusal to compensate. Keith was hired as attorney for the School District, and Beth Richmond was appointed as hearing officer for the due process hearing.

¶ 6. After the request for the due process hearing, attorney Becky Floyd of P & A indicated to Keith that she planned to call a representative of the Shea Clinic, the facility where Kelli's implant procedure was performed, as a witness. During this conversation with Floyd, Keith mentioned that he wished to subpoena Kelli's Shea Clinic medical records in preparation for the hearing. Thereafter, the Williamsons provided a witness list for the hearing that showed that Elizabeth Domico, an audiologist with the Shea Clinic, was to be called to testify.

¶ 7. Keith requested issuance of a subpoena for Kelli's medical records. Richmond, acting as hearing officer, issued the subpoena. Keith then served the subpoena on the custodian of records at the Shea Clinic. No copies of Keith's request for the subpoena or the subpoena were served on P & A. Shea Clinic subsequently provided Kelli's medical records to Keith. These documents covered the period of March 10, 1993, to September 8, 1994, and contained information regarding Kelli's hearing loss, cochlear implant, and general medical history.

¶ 8. The Madison County due process hearing never took place because the School District and the Williamsons entered into a Settlement Agreement resolving the dispute. In an affidavit sworn by Cynthia Williamson, Kelli's mother, Cynthia stated that the Williamsons did not become aware of Keith's request for Kelli's records until several months after the matter was settled. Subsequently, the Williamsons filed suit against Keith and Richmond alleging that there was an abuse of process, violation of due process and invasion of privacy when Keith and Richmond subpoenaed Kelli's medical records from the Shea Clinic in Memphis, Tennessee. Richmond was eventually dismissed from the suit.

¶ 9. Keith, in his sworn affidavit, explained that he never used the Shea Clinic records and did not disclose or publish them, or any information contained therein to anyone other than his legal assistant and the School District's Special Education Services Director in preparation for the due process hearing. Keith also stated in his affidavit that he did not become aware that he had not served a copy of the subpoena request or the subpoena to P & A until he reviewed his file after the Williamsons had filed suit.

STANDARD OF REVIEW

¶ 10. This Court has a well-established standard of review of a trial court's grant of summary judgment:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines 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, there is no genuine issue of material fact and, 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 in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000) (quoting McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)).

DISCUSSION

I. WAS SUMMARY JUDGMENT DISMISSING THE ABUSE OF PROCESS CLAIM PROPER?

¶ 11. The Williamsons claim that Keith's requesting of a subpoena to obtain Kelli's medical records without sending their attorneys at P & A a copy of the request resulted in an abuse of process. The Williamsons assert that there existed genuine issues of material fact which should have precluded the trial court from granting summary judgment in favor of Keith.

¶ 12. This Court, in State ex. rel. Foster v. Turner, 319 So.2d 233 (Miss.1975),

defined the action of abuse of process:

The action of abuse of process consists in the misuse or misapplication of a legal process to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a regularly issued civil or criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained....

Id. at 236 (footnote omitted). This Court has outlined the elements that must be proven in order to sustain an action of abuse of process:

(1) that the defendant made an illegal and improper perverted use of the process, a use neither warranted nor authorized by the process;

(2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of process; and

(3) that damage resulted to the plaintiff from the irregularity.

Id.

¶ 13. This Court has stated that summary judgment must be entered "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." Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273 (1986)). In order to succeed in challenging the trial court's granting of summary judgment, the Williamsons must show the existence of each element of abuse of process, otherwise summary judgment will stand.

¶ 14. Taking each of the three elements required to make a showing of abuse of process and examining all the evidentiary matters in the light most favorable to the Williamsons, it is this Court's determination that summary judgment was properly granted regarding the alleged abuse of process by Keith.

¶ 15. The first element that must be shown in an abuse of process claim is "that the defendant made an illegal and improper perverted use of the process, a use neither warranted nor authorized by the process." Turner, 319 So.2d at 236. Keith acknowledges in his affidavit that he mistakenly failed to "serve a copy of the subpoena on Kelli's legal representatives" when he requested Kelli's medical records from the Shea Clinic. Because there is no dispute regarding whether the Williamsons make a successful showing of this first element, further analysis of it is unnecessary.

¶ 16. The second element that must be shown in an abuse of process claim is "that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of process." Id. at 236. The Williamsons assert that there is a genuine issue of material fact as to whether Keith had ulterior motive when he requested Kelli's medical records. The Williamsons point to statements contained in three affidavits to support this notion.

¶ 17. The first affidavit was made by Rebecca...