Before Sullivan, P.j., Mills And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 06/19/97
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN
PERSONAL INJURY AND PROPERTY DAMAGE
DISPOSITION AFFIRMED - 11/12/98
¶1. On October 31, 1996, Judge Brenda Moore Franklin ("Judge Franklin") filed a complaint alleging libel against Frank Hurdle and Anthony Alan Thompson ("Thompson") in the Marshall County Circuit Court. The court granted Thompson's motion for summary judgment on the grounds that Judge Franklin could not prove falsity as to him. We consider the following two issues on appeal.
I. DOES EVIDENCE THAT DEFENDANT THOMPSON GAVE DEFENDANT HURDLE PHOTOGRAPHS KNOWING, INTENDING, AND ENCOURAGING HIM TO USE THEM IN HIS POLITICAL CAMPAIGN TO FALSELY ACCUSE JUDGE FRANKLIN OF ILLEGAL CONDUCT THAT THOMPSON ADMITS HIS OWN THREE-MONTH SURVEILLANCE FAILED TO PROVE, PRECLUDE SUMMARY JUDGMENT FOR THOMPSON ON JUDGE FRANKLIN'S COMPLAINT FOR DEFAMATION?
II. WHETHER JUDGE FRANKLIN IS JUDICIALLY ESTOPPED FROM ASSERTING THAT THOMPSON'S OPINION IS ACTIONABLE LIBEL.
¶2. Brenda Moore Franklin ("Judge Franklin") is a Justice Court Judge in Marshall County. Anthony Alan Thompson ("Thompson") is an officer with the Mississippi Highway Patrol. The ill-will between Judge Franklin and Thompson arose when Judge Franklin dismissed a DUI case against a defendant that Thompson had charged with said offense.
¶3. The DUI case was on the Justice court docket for December 18, 1994. Counsel for the defendant, Anthony L. Farese ("Farese"), was granted a continuance *fn1 until 1:00 p.m. the same day because he had a conflicting court appearance in Lafayette County. At some point before 1:00 p.m. that day, Thompson informed Judge Franklin that he was sick and needed to go home, which request was not objected to by the Judge. Thompson went home, took some Pepto Bismol and began to feel better. Later that day, Thompson reported for work at the patrol station in Batesville.
¶4. When Farese returned from Lafayette County to try the DUI case, he was informed that Thompson had gotten too sick to appear in court and had gone home. Unbeknown to Thompson, Farese had seen him traveling towards Batesville in his patrol car. Farese telephoned the Mississippi Highway Patrol Station in Batesville and found that Thompson was indeed feeling better and had reported for work. Farese notified Judge Shaw and Judge Franklin and the three called Thompson at the station to confirm that he was at work.
¶5. When the DUI case was called during the afternoon docket, Farese moved the court to dismiss or to compel Thompson's attendance. Judge Franklin asked the clerk to call Thompson and ask him how long it would take him to arrive at the court. Thompson refused to appear and Farese's motion for dismissal was granted by Judge Franklin. *fn2
¶6. On his own time, Thompson began surveillance of Judge Franklin's home. He claims that two individuals contacted him and complained that Judge Franklin had switched the tags on her 1990 Lexus, which had an expired tag, with one from a 1979 Chevrolet Caprice owned by her husband. *fn3 For several months, Thompson observed and photographed the tags on the two aforementioned cars with the switched plates. During most of Thompson's surveillance, Judge Franklin's Lexus remained on blocks in her front yard because of mechanical problems. However, her husband did drive the car to his place of employment in Colliersville, Tennessee, and Thompson photographed the car while it was there. Thompson admitted that he never saw Judge Franklin driving the car during this time. ¶7.The events that formed the basis of Judge Franklin's complaint occurred when Thompson gave the photographs of the cars bearing the switched license plates to Judge Franklin's opponent in the election for Justice Court Judge, Frank Hurdle ("Hurdle"). *fn4 Thompson gave these pictures to Hurdle with the knowledge that he was going to use them in political advertisements during his campaign against Judge Franklin. During discovery, Hurdle admitted that Thompson told him that he had not actually seen Judge Franklin drive the car but he (Thompson) believed she knew the car was being operated and either she switched the plates herself or knew that they were being switched.
¶8. This Court's standard of review for summary judgment is well-settled and was recently restated in Aetna Casualty & Surety Co. v. Berry, 669 So.2d 56 (Miss. 1996). In Berry, this Court stated:
The standard for reviewing the granting or denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at 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, 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 would be given the benefit of the doubt.
Berry 669 So.2d at 70 (quoting Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss. 1992); see also Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1095 (Miss. 1996).
¶9. Moreover, a motion for summary judgment should be denied unless the trial court finds beyond any reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim. Yowell v. James Harkins Builder, Inc., 645 So.2d 1340, 1343 (Miss. 1994); McFadden v. State, 580 So.2d 1210, 1214 (Miss. 1991). The trial court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Yowell, 645 So.2d at 1343-44; Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss. 1983).
¶10. When considering a motion for summary judgment, the trial court must view all the evidence (admissions and pleadings, depositions, affidavits, answers to interrogatories, etc.) in the light most favorable to the non-moving party; and, upon this consideration, if the moving party is entitled to judgment as a matter of law, the motion should be granted; otherwise, it should be denied. Sanford v. Federated Guar. Ins. Co., 522 So.2d 214, 217 ...