TYRONE K. THORNTON AND ANNIE THORNTON, APPELLANTS
BIG M TRANSPORTATION COMPANY, APPELLEE
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/17/2013. TRIAL JUDGE: HON. SMITH MURPHEY. TRIAL COURT DISPOSITION: GRANTED THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
FOR APPELLANTS: CARLOS EUGENE MOORE, TANGALA LANIECE HOLLIS.
FOR APPELLEE: NICHOLAS E. BRAGORGOS.
BEFORE IRVING, P.J., BARNES AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶1. Tyrone and Annie Thornton appeal the Panola County Circuit Court's grant of summary judgment in favor of Big M Transportation Company. The Thorntons argue that the circuit court erred in granting Big M Transportation's summary-judgment motion for the following reasons: (1) the motion for summary judgment was untimely filed; (2) the motion for summary judgment failed to comply with Rule 4.03 of the Uniform Rules of Circuit and County Court; and (3) genuine issues of material fact still exist. Finding no error in the circuit court's grant of summary judgment, we affirm.
¶2. On May 6, 2009, while driving from Wisconsin to Alabama, Tyrone collided with a tractor-trailer rig parked in the middle of the highway between Batesville, Mississippi, and Oxford, Mississippi. According to the evidence in the record, the collision occurred between 3:30 a.m. and 3:55 a.m. The rig parked in the middle of the highway, Unit 279, belonged to Big M Transportation. Ricardo Virges, an employee of Big M Transportation at the time of the accident, testified that he parked Unit 279 at Big M Transportation's headquarters in Hickory Flat, Mississippi, during the early morning hours of May 6, 2009. Virges further testified that, after dropping off Unit 279, he drove about two and a half hours to Bruce, Mississippi, to spend the night at an apartment he shared with Keena Owens Virges.
¶3. For her part, Keena testified that she awoke around 2 a.m. to several missed phone calls from Virges and to Virges banging on her apartment door. Keena let Virges into the apartment, and the couple went to sleep. When Keena woke up at 5 a.m. to get ready for nursing school, she testified that Virges was still asleep.
¶4. Following the collision involving Unit 279, Big M Transportation retrieved data from a satellite tracking device installed on the rig. Consistent with Virges's deposition testimony, the satellite-tracking records indicated that Virges dropped off Unit 279 around 12:43 a.m. on May 6, 2009. The records further indicated that the rig later exited Big M Transportation's parking lot at 1:38 a.m.
¶5. When Tommy Johnson, Big M Transportation's safety director, arrived at work on May 6, 2009, he contacted the Benton County Sheriff's Department to report that Unit 279 had been stolen. According to Johnson's affidavit, when Unit 279 left Big M Transportation's premises at 1:38 a.m. the morning of the collision, the rig was not authorized to do so and was not " on or about the business of Big M
[Transportation]." Tyrone also provided deposition testimony regarding the accident. When asked whether he had any idea " if there was anybody there [at the crash site] with [Unit 279]," Tyrone answered that he did not see anyone, including a driver, around the rig.
¶6. Tyrone and his wife, Annie, filed a negligence suit against Big M Transportation and John Doe in Panola County Circuit Court. The circuit court judge entered an agreed order, which established November 1, 2010, as the deadline for filing all motions other than motions in limine. After the November 1, 2010 deadline passed, the Thorntons filed a second complaint on December 23, 2010, against Virges alone, alleging that Virges was the driver designated in their first complaint as " John Doe." The circuit court later allowed the Thorntons' two complaints to be consolidated.
¶7. Following a status conference on July 27, 2011, the circuit court entered an order that established July 29, 2011, as the new deadline for filing additional motions, including any motion by the Thorntons to amend their complaint. On August 4, 2011, several days after the deadline set by the circuit court judge, the Thorntons filed a motion to amend their complaint. The Thorntons sought to add a second John Doe and Mississippi Farm Bureau Casualty Insurance Company as defendants and to add causes of action for negligent security, general negligence, and negligence per se.
¶8. On August 15, 2011, the circuit court granted the Thorntons' motions to amend their complaint and to substitute Virges for one of the " John Does." During the status conference held on August 15, 2011, the Thorntons' attorney stated that there would be additional discovery and motions for summary judgment after the complaint was amended. At the status conference held on August 30, 2011, the circuit court judge informed the parties that he would let them " handle the case until discovery was complete or until there was additional need for the [c]ourt's involvement."
¶9. On November 29, 2011, Farm Bureau filed a motion for summary judgment, which the circuit court granted. On March 26, 2012, Virges filed a motion for summary judgment, and on May 7, 2012, Virges filed an amended motion for summary judgment. The circuit court entered an order on October 19, 2012, granting summary judgment in favor of Virges. Big M Transportation then filed its motion for summary judgment on December 5, 2012, and its memorandum of authorities on January 28, 2013. The circuit court granted summary judgment in favor of Big M ...