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GLENN PARKER, SR., GLENN PARKER, JR., AND OREY B. PARKER v. MISSISSIPPI GAME AND FISH COMMISSION

DECEMBER 20, 1989

GLENN PARKER, SR., GLENN PARKER, JR., AND OREY B. PARKER
v.
MISSISSIPPI GAME AND FISH COMMISSION, MISSISSIPPI BUREAU OF MARINE RESOURCES, STATE OF MISSISSIPPI, CHESTER DIAZ, HENRY ALEXANDER, DAVID NELLUMS, FRANK EVANS, AND JOHN DOE AND JANE DOE



BEFORE ROY NOBLE LEE, C.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

This cause arises from a complaint of false arrest and false imprisonment filed in the Circuit Court of Jackson County, Honorable Clinton E. Lockard, presiding. Summary judgment was entered in favor of defendants and this appeal taken, asserting as issues to be addressed:

1. Whether the plaintiffs' complaint was sufficient to notify the defendants that the plaintiffs intended to pursue a claim of malicious prosecution?

 2. Whether the trial judge should have given the plaintiffs leave of court to amend their petition to include a complaint of malicious prosecution?

 3. Whether the qualified immunity of law enforcement officials would shield these individual defendants from civil liability from a malicious prosecution claim?

 On November 19, 1984, Glenn Parker, Sr., Glenn Parker, Jr., and Orey B. Parker were arrested by conservation officers of the Mississippi Department of Wildlife Conservation in Stone County, Mississippi, charged with hunting from a public road, hunting from a motorized vehicle, and hunting deer at night with a lighting device. While to some these offenses may appear true, the statues prohibiting them serve a greater function than the protection of wildlife. Any citizen of a rural area of our State can quickly inform you of the highly dangerous nature of hunting from a vehicle and from a public road, and of firing high powered weapons from roadways at night or any other time for that matter. At any rate, the plaintiffs were convicted by the Stone

 County Justice Court. Their appeal to the Circuit Court of Stone County resulted in a hung jury after which the circuit judge sustained the Parkers' Motion for Dismissal and the case was dismissed with prejudice on February 13, 1986.

 On February 10, 1987, the Parkers filed their complaint of false arrest and false imprisonment in the Circuit Court of Jackson County and were met with a motion for summary judgment on the grounds that the plaintiffs had failed to state a claim upon which relief could be granted, that the action was barred by the applicable statute of limitations, Miss. Code Ann., 15-1-35 (1972), as Amended, and that the individual defendants enjoyed immunity from these type of damages as they were acting within the course and scope of their official duties.

 At the hearing, the Parkers alleged for the first time that their complaint was for malicious prosecution. The trial judge held that their complaint was for false arrest and false imprisonment, actions which accrued on the date of their arrests, November 10, 1984, and were therefore barred by the one year statute of limitations. In accordance with this reasoning the trial judge granted the Motion for Summary Judgment and from this ruling, the Parkers have appealed.

 I.

 WAS IT ERROR TO HOLD THAT THE PLAINTIFFS' COMPLAINT WAS INSUFFICIENT TO PUT THE DEFENDANTS ON NOTICE THAT THE PLAINTIFFS INTENDED TO PURSUE A CLAIM FOR MALICIOUS PROSECUTION?

 The Parkers' urge that although they did not use the words "malicious prosecution" in their complaint, their pleadings alleged sufficient factual components of a malicious prosecution claim to put the defendants on notice that such a cause of action had been asserted.

 In reviewing a grant of summary judgment, this Court conducts a de novo review. Short v. Columbus Rubber and Gasket Co., Inc., 535 So. 2d 61 (Miss. 1988). In Pearl River County Bd. of Sup'rs. v. South East Collections Agency, Inc., 459 So. 2d 785 (Miss, 1984), this Court said:

 Summary judgment is appropriate only where ". . . 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 judgment as a matter of law." MRCP 56 (1972). The power to grant summary judgment is not discretionary with the trial court and the above test must be met in

 all cases. . .

 Section 15-1-35, Miss. Code Ann., (1972), as Amended, in pertinent part, states:

 All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest. . .shall be commenced within one (1) year next after the cause of such action accrued, and not after.

 As applied to the current situation, the Parkers' complaint for false arrest and false imprisonment accrued on the date of their arrest, November 19, 1984, and was governed by a one (1) year statute of limitation.

 The question before this Court is whether the February 10, 1987, complaint was sufficient to notify the defendants that a claim for malicious prosecution was also contemplated. Such an action would have accrued on February 13, 1986, when the criminal charges against the Parkers were dismissed with prejudice. Gandy v. Palmer, 251 Miss. 398, 415, 169 So. 2d 819, 827 (1964).

 While Rule 8 of the Mississippi Rules of Civil Procedure requires a short and plain statement of the claim showing that the pleader is entitled to relief, Rule 8 does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim.

 If the original complaint sufficiently alleged the factual components of a malicious prosecution claim so as to put the defendants on notice, that malicious prosecution claim is preserved. If the allegations were insufficient to put the defendants on notice, their claim is lost.

 In pertinent part, the complaint stated:

 . . .COMES NOW the Plaintiffs in the above styled and numbered cause by and through counsel of record and files this their complaint against the Defendant for negligence, false arrest and false imprisonment for cause of action would state as follows, to-wit:

 . . .IX.

 That on or about November 19, 1984, the Plaintiffs were arrested for allegedly illegally shooting a weapon and illegally hunting.

 X.

 That the Defendants were involved in said arrest.

 XI.

 That the arrest was without probable cause and was intentional, willful and malicious and in deprivation of the constitutional rights of the Plaintiffs.

 XII.

 That the Defendants acted negligently, willfully, wantonly and without probable cause in the false arrest and false imprisonment of the Plaintiffs.

 XIII.

 That the Plaintiffs were arrested, searched and treated in a negligent manner and that the Defendants had a duty to exercise reasonable and due care in the arrest of said persons but that said arrest was without probable cause and that there was a breach of said due care and that the Plaintiffs were injured as a direct and proximate result of the actions of the Defendants.

 XIV.

 That the Plaintiffs have undergone severe mental and emotional distress as a result of the wrongful arrest and false imprisonment by the Defendants. . .

 XV.

 That as a result thereof the plaintiffs have ...


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