IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-60266
Summary Calendar
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JOHN PALMER; U L PALMER, SR,
Plaintiffs-Appellants,
v.
PALMER PETROLEUM INC,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(2:96-CV-157)
_________________________________________________________________
November 24, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants U.L. Palmer and John Palmer appeal the
district court’s grant of summary judgment in favor of defendant-
appellee Palmer Petroleum, Inc. Finding that there is no genuine
issue of material fact with regard to Palmer Petroleum’s
liability to John and U.L. Palmer, we affirm the judgment of the
district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs-appellants John Palmer and U.L. Palmer
(collectively, “Plaintiffs”) are the surface estate owners of
real property located in Greene County, Mississippi. Defendant-
appellee Palmer Petroleum, Inc. leases the minerals underlying
the surface. Plaintiffs have no interest whatsoever in the
mineral estate. Palmer Petroleum hired T.K. Stanley, Inc., an
independent contractor, to construct a drill site on the Greene
County property. When T.K. Stanley began building the drill
site, U.L. Palmer was one of its employees, and he participated
in the work that T.K. Stanley performed for Palmer Petroleum.
T.K. Stanley later terminated U.L. Palmer’s employment.
Thereafter, Plaintiffs each filed suit in state court
alleging that Palmer Petroleum unlawfully damaged his real
property by destroying approximately three acres of land and the
timber that was growing on that land. In addition, U.L. Palmer
claimed that Palmer Petroleum tortiously interfered with his
employment contract with T.K. Stanley and thereby caused them to
terminate his employment. The suits were subsequently
consolidated by agreement of the parties, and Palmer Petroleum
then removed the action to federal court on the basis of
diversity of citizenship. After some pre-trial discovery, Palmer
Petroleum moved for, and the district court granted, summary
judgment as to both issues. Plaintiffs, now appearing pro se,
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appeal the district court’s judgment.1
In response, Palmer Petroleum argues that the district
court’s determination that there is no genuine issue of material
fact should be affirmed. In addition, Palmer Petroleum has moved
for dismissal of this appeal and for sanctions pursuant to
Federal Rule of Appellate Procedure 38, arguing that the appeal
is frivolous.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the
same criteria that the district court used in the first instance.
Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997). We
consult the applicable law in order to ascertain the material
factual issues, and we then review the evidence bearing on those
issues, viewing the facts and inferences to be drawn therefrom in
the light most favorable to the nonmovant. King v. Chide, 974
F.2d 653, 656 (5th Cir. 1992). Summary judgment is appropriate
only “if 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.” FED. R. CIV. P. 56(c).
Where the moving party has met its burden of proving that no
genuine issue of material fact exists, the “nonmovant must go
1
Plaintiffs were represented by counsel in the district
court, but have chosen to pursue this appeal pro se.
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beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). This burden cannot be met by
mere allegations or denials, but requires that the nonmovant
submit additional evidence or refer specifically to evidence in
the record indicating that a genuine issue of material fact
exists. Reese v. Anderson, 926 F.2d 494, 498 (5th Cir. 1991).
III. DISCUSSION
A. Scope of Review
Plaintiffs argue that the district court erred in refusing
to recognize the materials and witnesses that would have been
produced at trial. In support of their argument, Plaintiffs have
attached to their appellate brief various exhibits, several
unsworn affidavits, and portions of deposition testimony. “This
court’s inquiry is limited to the summary judgment record before
the trial court: the parties cannot add exhibits, depositions,
or affidavits to support their positions on appeal, nor may the
parties advance new theories or raise new issues to secure
reversal.” Topalian v. Ehrman, 954 F.2d 1125, 1131-32 n.10 (5th
Cir. 1992). Thus, as the evidence now offered by Plaintiffs was
not presented to the district court, we will not consider it on
appeal.2
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Plaintiffs also complain that the state court erred by
consolidating the two original suits and thereby raising the
total amount in controversy enough to allow Palmer Petroleum to
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B. Opportunity to Be Heard
Plaintiffs further complain that the district court erred by
deciding the summary judgment motion outside of their presence.
This argument lacks merit. This court has stated that “while
Rule 56(c) contemplates notice to an adverse party and a
‘hearing’ before the court rules on a summary judgment motion,
the ‘hearing’ need not be one in which the court receives oral
argument.” Barker v. Norman, 651 F.2d 1107, 1119 (5th Cir. Unit
A July 1981). Although Plaintiffs appear pro se on appeal, they
were represented by counsel in the court below, and the record
contains their Response to Motion for Summary Judgment and their
attached exhibits. Moreover, there is no indication in the
record that Plaintiffs even requested oral argument. We
therefore conclude that the district court provided Plaintiffs
adequate opportunity to be heard on the summary judgment motion.
C. Damage to Property
Plaintiffs next argue that Palmer Petroleum used their land
without compensation and is liable for the timber that was
destroyed due to the construction of the drill site. The
remove the case to federal court based on diversity of
citizenship. As Plaintiffs both consented to the state court’s
consolidation and failed to contest the consolidation in the
federal district court, this issue is not cognizable on appeal.
Topalian, 954 F.2d at 1131-32 n.10 (holding that appellant may
not raise issues on appeal that were not presented to the
district court); 10 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2716, at 651-54 (1983 & Supp. 1997).
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district court found that Palmer Petroleum was entitled to
conduct its operations on the land by virtue of its lease of the
mineral estate and was not liable to the surface estate owners as
long as its actions were not negligent.3 Cities Serv. Oil Co. v.
Corley, 197 So. 2d 244, 246 (Miss. 1967) (holding that a mineral
lessee was not liable for damage to the surface as long as its
“operations were conducted in a careful and prudent manner”).
The district court found that the parties did not dispute
that the actual damage to the property was caused by T.K.
Stanley, an independent contractor that Palmer Petroleum hired to
construct the drill site. The district court therefore
determined that summary judgment was appropriate because under
Mississippi law, “[n]o vicarious liability for acts of an
independent contractor exists.” McKee v. Brimmer, 872 F. Supp.
1536, 1540 (N.D. Miss. 1973).
Having reviewed the evidence in the record that relates to
this issue, we are persuaded that the district court was correct
in its determination that no genuine issue of material fact
exists. In support of its motion for summary judgment, Palmer
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The district court noted that while Plaintiffs were
only entitled to damages if their property was damaged due to
Palmer Petroleum’s negligence or unreasonable use of the
premises, Cities Service Oil Co. v. Corley, 197 So. 2d 244, 246
(Miss. 1967), they failed to allege such negligence. For
purposes of its consideration of the motion for summary judgment,
however, the court assumed that Plaintiffs had alleged that their
property was damaged as a result of Palmer Petroleum’s
negligence.
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Petroleum presented the affidavits of its Field Supervisor (who
hired T.K. Stanley) and of the President of T.K. Stanley, both of
which support the assertion that T.K. Stanley was an independent
contractor. Plaintiffs presented no evidence to refute this
assertion and do not even address it in their briefs; their only
argument in support of their claim is that Palmer Petroleum was
at all times the operator of the site and was therefore
responsible for the damage. Because Plaintiffs have failed to
raise a genuine issue of material fact regarding Palmer
Petroleum’s liability, we conclude that the district court’s
grant of summary judgment on this issue was proper.
D. Tortious Interference with Contract
Plaintiff U.L. Palmer next contends that the district court
erred in granting summary judgment for Palmer Petroleum on his
tortious interference with contract claim. Palmer Petroleum
responds that U.L. Palmer was an at-will employee of T.K. Stanley
and thus was not a party to an employment contract. It therefore
argues that it could not have tortiously interfered with a non-
existent contract.
In order to establish tortious interference with contract
under Mississippi law, a plaintiff must prove the following
elements:
1) that the acts were intentional and willful;
2) that they were calculated to cause damage to the
plaintiffs in their lawful business;
3) that they were done with the unlawful purpose of
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causing damage and loss, without right or
justifiable cause on the part of the defendant
(which constitutes malice); and
4) that actual damage and loss resulted.
Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682-83 (Miss.
1987). Under Mississippi law, where no employment contract
exists between an employer and an employee, the employment is
purely at-will and therefore may be terminated by either party at
any time for any reason. Solomon v. Walgreen Co., 975 F.2d 1086,
1089 (5th Cir. 1992).
Plaintiff U.L. Palmer admitted in his deposition that he had
no employment contract with T.K. Stanley. It is therefore
undisputed that under Mississippi law he was an at-will employee.
Our research has not uncovered any Mississippi cases directly
addressing whether there is a cause of action for tortious
interference with an at-will employment relationship, but “[t]he
Mississippi Supreme Court has expressed extreme reluctance to
recognize any exception to the harsh terminable at will
doctrine.” Pinnix v. Babcock and Wilcox, Inc., 689 F. Supp. 634,
637 (N.D. Miss. 1988). Moreover, the Mississippi Supreme Court
has twice noted that “‘numerous cases from other states recognize
that there is no right of recovery on the part of a discharged
employee against one said to have interfered with a contract
terminable at will.’” Vestal v. Oden, 500 So. 2d 954, 955 (Miss.
1986) (quoting Shaw v. Burchfield, 481 So. 2d 247, 254-55 (Miss.
1985)). The Vestal court explained that courts in those states
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have reasoned that “[w]here there has been no breach of contract,
conceptualizing a tortious interference fails as a matter of
elementary legal logic.” Id. at 955. In addition, in Pinnix,
the Eastern District of Mississippi addressed a similar
situation, and stated that “[o]bviously, if no enforceable
contract existed, then any interference with that contract would
be immaterial and does not represent a genuine issue for trial.”
689 F. Supp. at 637. We agree; summary judgment on this issue
was therefore proper.
E. Motion to Dismiss and Motion for Sanctions
Palmer Petroleum has moved to dismiss this appeal as
frivolous and has requested that this court assess sanctions
against Plaintiffs. This court may dismiss an appeal that is
“frivolous and entirely without merit.” 5TH CIR. R. 42.2.
However, “[w]e do not lightly impose sanctions for invoking the
right of appeal.” Stelly v. Commissioner of Internal Revenue,
761 F.2d 1113, 1116 (5th Cir. 1985). In addition, we are mindful
of the fact that Plaintiffs appear pro se on appeal.
This court has held that “[w]here pro se litigants are
warned that their claims are frivolous, . . . and where they are
aware of the ample legal authority holding squarely against them,
then sanctions are appropriate.” Id. In the instant case,
Plaintiffs have not been warned previously about the frivolity of
their claims, and their claims were not dismissed as frivolous by
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the district court. In addition, there is no evidence that
Plaintiffs have pursued this appeal in bad faith or for purposes
of harassment. Thus, although Plaintiffs arguments on appeal are
certainly meritless, we do not believe that they warrant
sanctions or dismissal.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court. Defendant-appellee’s motions for dismissal of
the appeal and for sanctions are DENIED.
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