EOG Resources Inc v. Beach

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 02-60415 Summary Calendar _______________

EOG RESOURCES, INC.,

Plaintiff- Counter Defendant- Appellee,

VERSUS

JESSE DEMPSEY BEACH, ET AL.,

Defendants,

PRESTON WAYDE GILL,

Defendant- Counter Claimant- Appellant.

___________________________

Appeal from the United States District Court for the Southern District of Mississippi m 1:00-CV-351-BrR m 1:00-CV-368-GR m 1:00-CV-491-BrR _________________________

November 26, 2002

Before HIGGINBOTHAM, SMITH, and At a hearing on August 24, 2000, the dis- CLEMENT, Circuit Judges. trict court announced that it would issue a pre- liminary injunction enjoining defendants from JERRY E. SMITH, Circuit Judge:* denying EOG access to their lands. In its or- der dated August 29, 2000, the court required EOG Resources, Inc. (“EOG”), sought a EOG to obtain a security bond of $6000 be- declaratory judgment for the right to conduct fore issuance of the preliminary injunction seismic exploration operations on Preston against Gill.2 Gill’s land. Gill appeals a summary judgment, and we affirm. EOC did not obtain a bond until Septem- ber 6. Before the bond was issued, on August I. 27, EOC employees entered Gill’s property EOG is a Houston-based corporation spe- with the intent of conducting seismic opera- cializing in mineral exploration. Gill and other tions. Gill, who claims that he was worried defendants are the record title owners of the about liability in the event of an accident, surface estate in various tracts of land in Mis- asked the employees for a copy of the injunc- sissippi. EOG entered into seismic op- tion. When they were unable to comply, Gill tion/lease agreements with certain owners of told them to leave. mineral interests underlying defendants’ lands. Under these agreements, EOG possessed the Later that day, Donnie Sport and Richard right to acquire oil, gas, and mineral leases and Fitzpatrick, representatives of EOG, came to to conduct a geophysical survey.1 Gill’s house. In his amended counterclaim, Gill alleges that Sport “made false accusations Despite EOG’s alleged attempts to furnish of interference” by Gill and threatened him defendants proof of its subsurface interest, de- with legal action for his unwillingness to per- fendants denied EOG the right to enter and use mit the employees access to his property. The the land. Faced with a time-sensitive explora- district court granted summary judgment on tion project, EOG sued for declaratory, injunc- EOG’s declaratory judgment claim and or- tive, and monetary relief. Gill answered pro se dered that Gill’s counterclaim be dismissed on and filed a counterclaim for abuse of process the merits. and intentional infliction of emotional distress (“i.i.e.d.”). II. Gill argues that the district court erred in granting summary judgment on EOC’s declar- * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- lished and is not precedent except under the limited 2 circumstances set forth in 5TH CIR. R. 47.5.4. “No preliminary injunction shall issue except upon the giving of security by the applicant, in 1 Under Mississippi law, a mineral owner or such terms as the court deems proper . . . .” FED. lessee has the right to enter, occupy, and use as R. CIV. P. 65(c). In this circuit, however, courts much of the surface as is reasonably necessary to have the discretion to issue injunctions without se- explore, mine, and market minerals. Larco Drill- curity. Corrigan Dispatch Co. v. Casa Guzman, ing Corp. v. Lee, 207 So. 2d 634, 635 (Miss. S.A., 569 F.2d 300, 303 (5th Cir. 1978) (per 1968). curiam).

atory judgment claim. Under Mississippi law, propriate when there is no genuine issue of the owner or lessee of subsurface oil, gas, and material fact and the moving party is entitled mineral rights has the right to enter, occupy to judgment as a matter of law. FED. R. CIV. and use as much of the surface as is reasonably P. 56(c); Celotex Corp. v. Catrett, 477 U.S. necessary to explore, mine, and market miner- 317, 323 (1986). An issue of material fact is als.3 At the August 24 hearing, EOC pre- genuine if a reasonable jury could return a ver- sented evidence of its right to conduct seismic dict for the nonmovant. Anderson v. Liberty explorations on Gill’s land. This evidence in- Lobby, Inc., 477 U.S. 242, 248 (1986). In re- cluded certified copies of instruments from viewing the evidence, we draw all reasonable county records and the owner’s seismic per- inferences in favor of the nonmoving party and mits. Gill has never disputed the authenticity avoid credibility determinations and weighing of this evidence. Because EOC is an undisput- of the evidence. Sanderson Plumbing Prods. ed lessee of the subsurface rights, the court Inc., 530 U.S. 133, 150-51 (2000). properly granted summary judgment.4 A. III. Gill contends that EOC abused the judicial The district court dismissed Gill’s claims process by unnecessarily naming him as a de- for abuse of process and i.i.e.d.. Gill com- fendant. Had EOC simply demonstrated proof plains that EOC wrongly named him as a de- of its subsurface rights, Gill says, he would fendant in the declaratory judgment action. He have allowed the company access to his prop- maintains that had EOC originally complied erty, making litigation unnecessary. Referenc- with his requests to furnish proof of its subsur- ing the apparent time-sensitive nature of face rights, he would have granted access, EOC’s seismic project, Gill contends that EOC making litigation unnecessary. Gill seeks was “more interested in procuring a Tempo- damages for the costs of maintaining the suit, rary Court Injunction to force [him] into sub- including emotional distress. He also alleges mission than to take that amount of time re- that EOC’s entry onto his land before issuance quired to properly provide proof” of their sub- of the preliminary injunction constituted abuse surface rights. Further, Gill points to EOC’s of process and i.i.e.d. entry on his property before issuance of the preliminary injunction. EOC defends its ac- We review a summary judgment de novo. tions as consistent with the court’s ultimate Pratt v. City of Houston, 247 F.3d 601, 605- decision on the merits. 06 (5th Cir. 2001). Summary judgment is ap- Abuse of process is “the misuse or misap- plication of a legal process to accomplish some 3 purpose not warranted or commanded by the E.g., Charles F. Hayes & Assocs., Inc. v. writ.” State for Use and Benefit of Foster v. Blue, 233 So. 2d 127, 128 (Miss. 1970); Larco Turner, 319 So. 2d 233, 236 (Miss. 1975).5 In Drilling Corp. v. Lee, 207 So. 2d 634, 635 (Miss. 1968). 4 5 Gill’s argument that EOC failed to provide From the pleadings, it is not entirely evident him with evidence of its subsurface rights before whether Gill has alleged a claim for abuse of pro- the preliminary injunction hearing is immaterial for cess or malicious prosecution, or both. Certainly, purposes of the declaratory judgment claim. (continued...)

Mississippi, an abuse of process claim is estab- For example, in Foster, defendants could lished by showing “(1) that the defendant made not make out a claim for abuse of process an illegal and improper perverted use of the where they instituted criminal proceedings process, a use neither warranted nor autho- against the plaintiffs for purely self-serving rized by the process; (2) that the defendant had reasons. Foster, 319 So. 2d at 236. If EOC an ulterior motive or purpose in exercising made an improper use of the judicial process such illegal, perverted or improper use of pro- by filing an unnecessary lawsuit,7 Gill’s proper cess; and (3) that damages resulted to the remedy is a claim for malicious prosecution, plaintiff from the irregularity.” Id. To survive not abuse of process. summary judgment, Gill must show that a gen- uine issue of fact exists as to each element. The only unlawful action alleged by Gill to Williamson v. Keith, 785 So. 2d 390, 394 have taken place after the commencement of (Miss. 2000). legal proceedings is EOC’s entry upon his land on August 27. Gill alleges that EOC breached For purposes of an abuse of process claim, the terms of the preliminary injunction by fail- a party makes an illegal and improper per- ing first to secure a bond for $6000, as re- verted use of the judicial process only after quired by the preliminary injunction order dat- suit has been filed.6 Woolfolk v. Tucker, 485 ed August 29. EOC does not dispute that it So. 2d 1039, 1042 (Miss. 1986). A party failed to follow the terms of the injunction. makes improper use of the judicial process Certainly, the company’s ultimate success on where, for example, he mistakenly fails to the merits does not justify its blatant disregard serve the opposing party with a copy of a sub- of the order. poena for medical records. Williamson, 786 So. 2d at 394. On the other hand, where a This, without more, is insufficient, how- party files a suit for impermissible reasons, the ever, to maintain an abuse of process claim. proper remedy is malicious prosecution, not Given the district court’s inherent power to abuse of process. determine the propriety of security before is- suing a preliminary injunction,8 the court’s fail- ure to initiate contempt proceedings against 5 (...continued) EOC weighs heavily against our finding a fact he cannot make out a claim for malicious prosecu- issue as to abuse of process. In addition, Gill’s tion, which requires that a plaintiff first establish failure to allege particular damages stemming that the underlying proceedings were terminated in from EOC’s violation further supports the his favor. Turner, 319 So. 2d at 235. 6 7 Foster, 319 So. 2d at 236 (“An action for Although we do not decide the issue, we have abuse of process differs from an action for mali- located no authority supporting Gill’s claim that cious prosecution in that the latter is concerned Mississippi law requires a subsurface owner or with maliciously causing process to issue, while the lessee initially to notify the surface owner before former is concerned with the improper use of pro- commencing seismic explorations. cess after it has been issued.”); see also Moon v. 8 Condere Corp., 690 So. 2d 1191, 1197 (Miss. City of Atlanta v. Metro. Atlanta Rapid 1997) (noting that “the defendant’s complaint was Transit Auth., 636 F.2d 1084, 1094 (5th Cir. not based on any perversion of any process, rather Unit B Feb. 1981); Corrigan Dispatch, 569 F.2d it was based simply on the filing of the suit”). at 303.

conclusion that an abuse of process claim is (5th Cir. 1991). inappropriate here. Gill alleges that Sport’s insults and threats B. of legal action were sufficiently outrageous to On the i.i.e.d. claim, under Mississippi law, support his i.i.e.d. claim. We disagree. liability is proper only where “the conduct has Sport’s reaction may have been inappropriate, been so outrageous in character and so ex- but it was not the type of behavior that might treme in degree, as to go beyond all possible be characterized as utterly intolerable in a civ- bounds of decency, and to be regarded as atro- ilized community. Gill has not alleged any cious, and utterly intolerable in a civilized damages beyond “mental stress”SShe cites no community.”9 Liability “clearly does not ex- verifiable physical ailments resulting from his tend to mere insults, indignities, threats, an- encounter with Sport. Along with the fact that noyances, petty oppression, or other triviali- miscommunication appears to have been the ties.” Wong, 700 So. 2d at 306.10 For ex- cause of Sport’s belief that his crew was en- ample, the immediate firing of an employee un- titled to begin seismic operations on Gill’s der an at-will employment contract does not land, we see no basis for the i.i.e.d. claim. constitute i.i.e.d. Fuselier, Ott & McKee v. Moeller, 507 So. 2d 63, 69 (Miss. 1987). A AFFIRMED. police officer who arrested a minor for driving his parents’ car without a license could not be liable for i.i.e.d. after the minor committed sui- cide.11 White v. Walker, 950 F.2d 972, 978

9 Wong v. Stripling, 700 So. 2d 296, 306 (Miss. 1997) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1977)). 10 In Wong, the court also wrote: “The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hard- 11 ened to a certain amount of rough language, and to (...continued) occasional acts that are definitely inconsiderate and of liability on the “rights of the home.” Id. at 755. unkind. There is no occasion for the law to inter- vene in every case where someone’s feelings are hurt.” Id. Gill asks us to apply this holdingSSwhich is over fifty years oldSSto the facts of this case. We 11 In Continental Cas. Co. v. Garrett, 161 So. decline to do so. See White, 950 F.2d at 978 753 (Miss. 1935), the court permitted recovery for (characterizing Garrett as “out of date” and noting a plaintiff whose feeble medical condition worsened that “[w]e doubt that a contemporary court would after a representative of the defendant insurance impose liability” based on its holding). Unlike the company came to his home and insulted him with plaintiff in that case, Gill has not alleged that he false accusations. The court premised its finding suffered a physical ailment as a result of Sport’s (continued...) visit to his house on August 27, 2000.