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Franklin v. Turner

Court of Appeals of Mississippi

March 21, 2017

BRENDA FRANKLIN APPELLANT
v.
CORNELIUS TURNER D/B/A GOLDEN AGE APARTMENTS, AND CORNELIUS TURNER D/B/A MAJOR MANAGEMENT, INC. APPELLEES

          Date of Judgment: 06/16/2014

         COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: BRENT HAZZARD SORIE S. TARAWALLY KELLY GUNTER WILLIAMS.

          ATTORNEYS FOR APPELLEES: FRANCES R. SHIELDS KATRINA SANDIFER BROWN.

         EN BANC

          MODIFIED OPINION ON MOTION FOR REHEARING

          BARNES, J.

         ¶1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

         ¶2. This appeal stems from a complaint filed on February 19, 2013, by Brenda Franklin, a tenant of Golden Age Apartments, against Cornelius Turner d/b/a Golden Age Apartments and Major Management (collectively referred to as "Turner"), and Robert Swinney, seeking $1, 000, 000 in damages. The complaint alleged that Swinney, the caretaker/employee of the apartment complex, was liable for assault and battery against Franklin. It further alleged Turner breached a duty to protect residents from the actions of its employee and was liable for its failure to monitor and maintain safe premises. Finally, the complaint asserted that all defendants were liable for false imprisonment, gross negligence, and intentional/negligent infliction of emotional distress.[1]

         ¶3. According to Franklin, Swinney came to the door of her apartment at approximately 5:30 p.m. on January 20, 2012, saying that her dog had gotten loose and bitten another tenant. He allegedly told her the police had been called, and she allowed him in her apartment to wait. Though Franklin claimed that she did not know Swinney, she fed him dinner. After he had eaten, she asked him to leave, but he sexually assaulted her and stayed at her apartment until early the next morning.[2]

         ¶4. Franklin did not report the attack until January 23, 2012, when she told Billy Joe White, the complex's former caretaker with whom she had a prior relationship, about the incident.[3] Over Franklin's objections, White contacted the police. Law enforcement came to Franklin's apartment to question her, and she was sent to the hospital for examination. Her medical records indicated no apparent injuries, and there had been too much passage of time since the attack to collect any lab specimens. Swinney was arrested, and after spending three months in jail because he could not post bail, he entered an Alford plea to attempted aggravated assault.[4] He received ten years in the custody of the Mississippi Department of Corrections (MDOC), with nine years and 272 days suspended, ninety-three days served, and five years of supervised probation.

         ¶5. Swinney, however, has continued to protest his innocence, testifying that he had a prior consensual sexual encounter with Franklin, and she had invited him over for dinner that evening. The record does contain substantial contradictory testimony about the events surrounding the incident. Although Franklin initially claimed she had never seen or met Swinney prior to the attack, she later admitted that she had his phone number and called him after the attack. Subpoenaed phone records show that between the time of the assault and Swinney's arrest, Swinney and Franklin sent several text messages to one another.

         ¶6. Additionally, Franklin claimed that she sat in her tub "scrubbing her skin" for hours that following morning after Swinney left and saw no one that day. But she subsequently admitted that she let Swinney back into the apartment that following day to fix her tub. Another man, Richard Boyd, confirmed that he and Swinney had been in Franklin's apartment to fix her tub on January 21, 2012. A neighbor, Joyce Kimball, testified that she saw Swinney go into Franklin's apartment on January 20, and heard laughing and giggling coming from Franklin's apartment until Kimball feel asleep at midnight. Kimball said she witnessed Swinney leaving the next morning and "heard Mrs. Franklin telling Mr. Swinney to return soon to make some repairs to her apartment."

         ¶7. On April 2, 2014, Turner filed a motion for summary judgment, or in the alternative, a partial motion for summary judgment, claiming that Swinney was not its employee at the time of the alleged assault and maintaining that Swinney did not sexually assault Franklin. Turner also submitted an alternative argument that even if Swinney were an employee, he was acting outside his scope of employment "had he committed a sexual act toward Franklin while 'on-duty.'" Franklin filed a motion to extend deadlines on April 29, 2014, and a response to Turner's summary-judgment motion on May 12, 2014, arguing Turner had "ratified" Swinney's actions by continuing his employment as a caretaker after he had entered his felony guilty plea.

         ¶8. After a motions hearing held on May 28, 2014, the circuit court granted Turner's motion for summary judgment on May 30, 2014, finding that Turner had met its burden of proof that Swinney was not an employee "who was acting within the course and scope of his duties at the time of the alleged attack" and that Turner had no knowledge that Swinney "may have a violent nature or that an atmosphere of violence exists on [its] premises." Noting that while it "may be a question for the jury as to whether . . . Swinney was an employee or agent" at the time of the attack, the court concluded "that the alleged sexual assault of [Franklin] by Swinney was not within the scope of his employment, if any."[5] The circuit court further held that retaining Swinney as an employee after his entry of a guilty plea for attempted aggravated assault, while "ill-advised, " was "insufficient to impose liability on the Turner defendants for the original acts." The circuit court denied Franklin's motion for an extension of deadlines, finding the issue was rendered moot based on its grant of summary judgment.

         ¶9. The circuit court entered a final order under Mississippi Rule of Civil Procedure 54(b).[6] Franklin asserts two issues on appeal: (1) whether the circuit court erred in granting Turner's motion for summary judgment; and (2) whether the court erred in denying Franklin's motion to extend deadlines. Finding the circuit court did not err in granting the ...


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