author: RANDOLPH, PRESIDING JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    T & W HOMES etc, LLC v. James Kendall CROTWELL and Terry Crotwell
    NO. 2016-IA-00605-SCT
    Supreme Court of Mississippi.
    08/24/2017

      ATTORNEY ' FOR ' APPELLANT: THOMAS D. ÉEE ''
    ATTORNEY FOR . APPELLEES: RICHARD MANNING LINGLE
    BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. In 1973, Gilbert Lum conveyed a forty-acre tract of land by warranty deed to his daughter, Lucille Crotwell, reserving unto himself a life estate in the lands and all mineral interests owned by him. The deed recites receipt of good and valuable consideration and was filed of record. No words of inheritance were contained in the deed. A quarter .of a century later, Lum attempted to reconvey one acre of the same forty-acre tract to Richard Prestage. This interlocutory appeal involves an action by Crotwell’s heirs against Pres-tage’s successors in title. The chancellor found that Lum had reserved a life estate in the land and minerals only and that he could have conveyed his reserved life estate, but that reading the conveyance as retaining the right to reconvey title in fee simple was repugnant to the granting clause in the conveyance to Crotwell. The Chancery Court of Scott County granted summary judgment to the Crotwells on this issue only. T & W Homes filed this interlocutory appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts are not in dispute. On March 13, 1973, Gilbert Lum conveyed, by warranty deed, a forty-acre tract of land to his daughter, Lucille Crotwell. The deed reads:

In consideration of ($10.00) ten and no/ 100 dollars and other good and valuable consideration, of which is hereby acknowledged, I, Gilbert Lum [address] convey and warrant to Lucille Lum Crotwell [address] the land described as follows .... towitt [sic]: the west half of S 1/2 of SE 1/4 of Section 19, Township 7 North, Range 6 East. Containing 40 acres more or less.
All above described] land subject to all prior oil, gas, and mineral rights, and sales and leases as shown in records of Chancery Clerk’s Office in Forest, Miss.
Grantor, however, does hereby expressly RESERVE unto himself a life estate in the foregoing lands coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner thereof! ] also RESERVING unto himself all mineral interest owned by him in said lands for his lifetime.

The deed was signed by Lum, who personally appeared before a notary public and “acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned.”

¶3. On June 8, 1998, Lum executed a warranty deed for one acre of the forty-acre tract to Richard Prestage, subject to his life estate for the mineral interests of that one acre, in addition to excepting all prior mineral rights. By special warranty deed, Prestage subsequently deeded the same property from himself to himself and his wife, Sheri, as an estate by the entirety with full rights of survivorship. The Prestages then executed a deed of trust in favor of American Title Company, Inc., as trustee for Hurricane Mortgage Company, Inc. This deed of trust ultimately was assigned to HSBC Bank, USA, N.A., as trustee for Wells Fargo Asset Securities Corporation Home Equity-Backed Certificates. On August 10, 2011, Emily Cour-teau, as Substituted Trustee, conducted a foreclosure sale of this deed of trust. T <& W Homes, Etc, LLC (“T & W”) was the successful bidder and received a Substitute Trustee’s Deed.

¶4. On December 13, 2011, the Crot-wells filed a complaint to confirm title, remove cloud on the title, and for ejectment. The parties filed competing motions for summary judgment. The chancellor found that Lum had reserved a life estate only, and that a reservation of the right to reconvey fee simple title was “an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.” T & W filed an interlocutory appeal as to this one issue.

ISSUE

¶ 5. The parties present the issue on appeal as whether the reservation by Lum of a life estate “coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner” was an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.

ANALYSIS

¶ 6. Questions of law are reviewed de novo. Morrow v. Morrow, 129 So.3d 142, 146 (Miss. 2013).

¶7. T & W argues that deeds containing reservations of life estates with power to reconvey fee simple title are recognized in other states. Each case cited by T & W is not only foreign to Mississippi law, but is factually distinguishable. For instance, in Jamieson v. Jamieson, 912 S.W.2d 602, 604 (Mo. Ct. App. 1995), a widower reserved a life estate with power to “sell, rent, lease, mortgage, or otherwise dispose of said property, during his natural lifetime. Then the remainder in fee to” his children. After executing the deed, the widower remarried and executed a new deed conveying the property to his new wife. Id. In the widower’s initial deed, there was no present conveyance; there was no mention of consideration; and the conveyance specified that the children were remaindermen. The Missouri Court of Appeals upheld the second conveyance, finding that the first deed was a mere “gift to the remaindermen,” and thus the widower retained a right to revoke. Id. at 605. In contrast, the deed at issue in the case sub judice effected a then-present conveyance by general warranty deed of real property owned by Lum. After acknowledging receipt of valuable consideration— thus taking this case outside the realm of inter vivos and testamentary gifts—Lum “[c]onvey[ed] and warrant[ed]” the forty acres described in the deed to Crotwell. The deed was signed, delivered, notarized, and filed—putting the world on notice of the transaction. Crotwell was the grantee identified in the deed. She was described in the deed as a contingent remainderman, as posited by the dissent. See Diss. Op. at ¶ 20. The words “remainder” or “remain-derman” are not in the deed sub judice. Contra Jamieson, 912 S.W.2d at 604-05.

¶ 8. In Harman v. Hurst, 160 Md. 96, 153 A. 24, 26 (1931), a father granted property to his daughter, “her heirs and assigns, in fee simple, subject and reserving to myself the right to mortgage or sell.” The father then conveyed the property to his' attorney, and his attorney recon-veyed the property to the father. Id. at 25. The Maryland Court of‘Appeals upheld the-latter conveyances, in part because the deed did not evidence that the daughter had paid any consideration for the initial conveyance. Id. at 25-26 (“A slight consideration may support an agreement made by a parent with a child; but the consideration, however[] slight, must be performed.”). The Lum-Crotwell deed reads that consideration was exchanged. On his oath,' Lum acknowledged receipt of consideration in the notarized deed, rendering Harman inapposite and unpersuasive.

¶ 9. Finally, T & W asks this Court to’ consider Kyle v. Wood, 227 Miss. 717, 86 So.2d 881 (1956). While Kyle remains good law for the principles of wills and testaments, it offers no guidance to today’s case.

¶ 10. In Kyle, J.A. Wood’s 1948 will contained the following provision:

I will and give all my property of every kind wherever located to my beloved wife, Mrs. Molly Wood, to have [and] to hold during her lifetime .to use, sell and dispose of as she.sees fit; and at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.

Id. at 882. J.A. Wood died in 1952. Id. Later that year, Molly conveyed the property to another. After her death, nephew Kyle filed suit against her grantees, complaining that the grant of power in J.A. Wood’s will to dispose was invalid. Id. at 882-83. This Court found Molly’s conveyance valid:

It thus appears that the rule is well settled by our own decisions, that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of the re-mainderman under the will by the exercise of the power of disposal during his lifetime.

Id. at 885.

¶ 11. Today’s case is governed by the law of deeds, not the law of wills and testaments. To write a learned treatise on each subject is not the endeavor of this opinion; which would be the result were we to discuss exhaustively the voluminous distinctions between these intricate and nuanced bodies of law. Suffice to say, we offer only a smattering of distinguishing features. A grantor of a deed must deliver it before it becomes effective. On the other hand, to convey real property by will, the testator devises- the real property upon death. And while wills are revocable by the testator at any time before death, a warranty deed for consideration (no matter how slight) is irrevocable between the parties once executed—and once filed, is valid against the world. The rule of Kyle affects testators of wills, not grantors in deeds.

¶ 12. The provisions in Wood’s will and Lum’s deed also differ. Wood left his wife a life estate in his property with the power to dispose. Lum, however, did not deed his daughter a life estate with the power to dispose, but rather conveyed the property by a general warranty deed to his daughter in fee and reserved unto himself a life estate. The provisions of Wood’s will were testamentary gifts. His nephew Kyle was a mere remainderman. The Lum-Crotwell deed was not a gift; it was a completed transfer or conveyance of real property with no reference to a contingent remainder. Crotwell was Lum’s grantee. T & W’s attempt to use testamentary law to settle a deed dispute is no less repugnant than the contested language in the deed before us.

¶ 13. Unlike the cases cited by T & W, the deed from Lum to Crotwell was not a future gift. It was not an enhanced life estate with potential remaindermen. The deed effected a present conveyance, consideration of which was acknowledged in the deed. Lum “convey[ed] and warrant[ed]” the property to Crotwell. And’ as the chancellor noted, “warrant” conveys a statutorily defined meaning. See Miss. Code Ann. § 89-1-33 (Rev. 2011)' (“The word “warrant” without restrictive, words in a conveyance shall have the effect of embracing all of the five (5) covenants known to common law, to wit: seizin, power to sell, freedom from incumbrance, quiet enjoyment and warranty of title.”). The warranty deed contained no restriction on the warranty. Thus any attempt to reserve the power to reconvey, or convey again, fee simple title is repugnant to the grant of the warranty, which included all of the aforementioned covenants, as found by the learned chancellor.

¶ 14. A deed case directly on point which validates the chancellor’s decision is Dukes v. Crumpton, 233 Miss. 611, 103 So.2d 385, 386 (1958), The deed from Dukes to Crumpton contained the following provision: “Grantor or his successor reserve all rights of sale and management.” This Court held that such a provision “is an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.” Id. at 388. T & W attempts to distinguish Dukes, arguing that while the reservation in Dukes was perpetual, the one from Lum to Crotwell terminated with the life estate. However, the shortened life of the reservation does not render an otherwise repugnant clause valid. The fact remains that a present conveyance, for which sufficient consideration was duly acknowledged, was executed, subject only to a life estate. That conveyance carried with it the five covenants that _ attached to the warranty of the deed. Because the warranty was without restriction, any reservation of the right of the grantor to sell fee simple title to property already conveyed was repugnant to the covenant of the power to sell included in the grant and warranty to Crotwell. Pursuant to the deed, Crot-well acquired ownership of the property upon delivery of the deed—March 13, 1973. Lum could not subsequently convey to Prestage property he no longer owned.

¶ 15. The dissent is correct that, when interpreting deeds, we look to the language employed in the deed to determine and effectuate the intent of the parties. Before making an omniscient declaration of' the parties’' intent, the dissent contorts and amends the “plain language of the deed” by asserting (1) that “Lum’s deed conveyed to Lucille no present interest in the property,” (2) that it instead “provided her a contingent remainder,” and (3) that it “clearly stated that title to the property in fee simple would vest in Lucille only upon Lum’s death provided he had not otherwise conveyed the property during his lifetime.” Diss. Op. at ¶ 20. Yet none of these conclusions is supported by the words of the deed. The language of the deed effectuates a present conveyance: “I, Gilbert Lum, [address] convey and warrant to Lucille Lum Crotwell [address]” the described forty acres (emphasis added). The deed recites and acknowledges receipt of consideration, and Lum swore it was delivered. Nowhere in the deed does it describe Crotwell’s interest as a contingent remainder. Nor did Lum transfer, grant, or convey a life estate. He conveyed the described property to Crotwell while reserving unto himself a life estate. There were no words of inheritance in the deed, either in the warranty portion or following the reservation to himself. Upon his death, his life interest dissolved. Had Lum conveyed to himself a life estate with the right to dispose of the property, remainder to Crotwell (as the dissent would characterize the deed before us), the dissent’s interpretation of his intent would hold water. But such is not the case.

¶ 16. We agree with the chancellor that Lum retained an ownership interest in the property—his life estate—which he retained the right to sell during his lifetime. But rather than “failing] to recognize a contingent remainder,” we restrict our analysis to the words of the deed and decline to create a contingent remainder when one is not contained therein.

CONCLUSION

¶ 17. We decline to rely on cases from other states which are not only factually distinguishable, but are based on laws foreign to our own. Reading Lum’s reservation of a life estate to include a right to reconvey fee simple title is repugnant to the deed’s granting clause. Contrastingly, reading the reservation as reserving Lum’s right to dispose of his life estate harmonizes the reservation with the granting clause. Thus, as found by the chancellor, Lum reserved unto himself a life estate only. During his lifetime, he could convey only what interest he owned, ie., his life estate. We affirm the judgment of the Chancery Court of Scott County and remand the case to that court for proceedings consistent with this opinion and disposition of the remaining claims.

¶ 18. AFFIRMED AND REMANDED.

KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.

WALLER, C.J., JOINS THIS OPINION.

DICKINSON, PRESIDING JUSTICE,

DISSENTING:

¶ 19. Under Mississippi law, “a deed must be construed as a whole without separating it into its formal parts, and” where—as here—the meaning of a deed is called into question, courts must determine “the intent of the parties thereto” by looking to “the language therein employed.” The language employed in the deed before us leaves no room for doubt as to what the parties intended to accomplish. And because the majority ignores both the plain language of the deed and the intent of the parties, I respectfully dissent.

¶20. Importantly—and contrary to the majority’s conclusion—Lum’s deed conveyed to Lucille no present interest in the property. Instead, it provided her a contingent remainder and clearly stated that title to the property in fee simple would vest in Lucille only upon Lum’s death, provided he had not otherwise conveyed the property during his lifetime. Specifically, the deed provided:

Grantor, however, does hereby expressly RESERVE unto himself a life estate in the foregoing lands coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner thereof.

The majority quotes this critical language from the deed, but then neither accounts for it nor gives it effect. Instead, the majority analyzes the deed as if this language did not exist.

¶ 21. In Kyle v. Wood, this Court recognized the validity of Lum’s reservation. J.A. Wood owned a one-half interest in a piece of real property. In his will, J.A. left the property to his wife, Molly Wood, “to have to hold during her life time to use, sell and dispose of as she sees fit.” The will also provided that “at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.” After J.A. died, Molly conveyed the interest to Joe and Ethel Wood by warranty deed. But after Molly’s death, Kyle claimed he owned the interest as remainderman to Molly’s life estate.

¶22. This Court considered whether Molly’s conveyance to Joe and Ethel was valid despite the fact that she was conveyed a life estate and Kyle had been named as remainderman. This Court recognized that:

A general power to sell, without restriction as to either purpose or grantee, leaves the donee of the power free to sell and do as he wishes with the proceeds, without responsibility to anyone, even though the donee of the power has a life estate and there is a gift over of the remainder. This has been held true even though the sale may have been made for the purpose of defeating the remainder.

¶23. The case now before us involves exactly this principle. The deed in question, like the will in Kyle, conveyed a life estate to Lum coupled with the right to dispose of the property during his lifetime. It also named Lucille as remainderman, Under Kyle, Lum possessed “the power free to sell and do as he wishes with the proceeds, without responsibility to anyone, even though [he] has a life estate and there is a gift over of the remainder” to Lucille. So Lum’s conveyance to Prestage was valid, and Lucille’s contingent remainder never vested because the contingency did not occur: that is, Lum did not die prior to conveying the property to a third party.

¶ 24. And contrary to the majority’s suggestion, this holding from Kyle did not address an issue of the law of wills and testaments, but rather an issue of life estates and contingent remainders—-both matters of property law and squarely at issue here. The vehicle for the convey-anee—deed or will—played no part in the Kyle court’s analysis or holding.

' ¶25. The majority ignores Kyle and strikes Lum’s reservation from the deed based largely on its misreading of this Court’s decision in Dukes v, Crumpton, which is wholly inapposite- to the facts of this case because the deed in that case conveyed a present fee simple interest in certain property. In that deed, the grant- or reserved “all rights of sale and management.” The majority correctly notes that this Court held the reservation in Dukes void as an illegal restraint on the alienation of property, but the majority fails to analyze the reason this Court did so, which clearly renders the majority’s reliance on Dukes misplaced.

¶ 26. Simply stated, one may not convey a present fee interest in property and, at the same time, reserve the right to sell it. As the Dukes court recognized, “the right of alienation is an indispensable incident to an estate in fee, such as was, in our opinion, conveyed by the granting clause of the deed here in question.” So, because that deed conveyed an interest in fee, “the provision added by the grantor, to-wit ‘grant- or or his successor reserve all rights'of sale and management’ is an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.”

¶ 27. The grantor in Dukes conveyed a present fee simple interest: that is, his ownership of the interest ceased at the moment of conveyance. Thus, this Court properly held that he could not reserve the right to sell property he no longer owned, and that the grantee, having taken the property in fee simple, must also take the right of alienation.

¶ 28. But the deed before us today includes no fee simple conveyance. Indeed, it includes no conveyance of a present interest at all. Instead, it includes the conveyance of a future interest: a contingent remainder. Unlike the grantor in Dukes, Lum retained an ownership interest in the property: his life estate. And because the reservation of a right to sell was limited in duration to Lum’s life estate, it did not act as a restraint on Lucille’s right to alienation of the property. Rather, it created the contingency upon which Lucille’s interest was predicated. Had Lum not conveyed the property during his lifetime, Lucille’s remainder' would have vested upon his death in fee simple, and she would have possessed the full right of alienation of her property.

¶ 29. The majority states “Crotwell acquired ownership of the property upon delivery of the deed—March 13,. 1973.” Assuming by “ownership of the property”—a colloquialism void of legal meaning—the majority intends to say she acquired some interest in the property that day, I agree. But the question is not whether Lucille acquired some interest. The question is what type of interest she acquired. Giving effect to’ the plain language of the deed and the clear .intent of the parties, she acquired a contingent remainder, and nothing more.

¶ 30. Because the majority fails to recognize a contingent remainder, fails to give effect to the clear language of the deed, and fails to recognize this as the- clear intent of the parties, I must respectfully dissent. . '. :

      . Lucille Crotwell died intestate in 2010. Her sole heirs at-law, her husband and two sons, executed a quit-claim deed conveying the property to her two sons, Terry and James Crotwell, as joint tenants with full rights of survivorship.

      . Claims of adverse possession and unjust enrichment remain pending in the chancery court.

      . Although not controlling today’s disposition, Lum again attempted to reserve the future conveyance of property by limiting Prestage’s unlimited power to sell the property, prior to giving first right of refusal to Prestage’s siblings still living at the time of Lum’s death. This restrictive clause would be repugnant to granting fee simple title to the property.

        . See Special Warranty Deed, Black’s Law Dictionary (10th ed. 2014) ("A deed in which the grantor covenants to defend the title against only those claims and demands of the grantor and those claiming by and under the grant- or.”).

      . See Warranty Deed, Black’s Law Dictionary (10th ed. 2014) ("A deed containing one or more covenants of title; esp., a deed that expressly guarantees the grantor’s good, clear title and that contains covenants concerning the quality of title, including warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances, and defense of title against all claims.—Also termed general warranty deed; full-covenant-and-warranty deed.").

        . "It is the duty of the Court to construe the instrument as it is written.” Westbrook v. Ball, 222 Miss. 788, 791, 77 So.2d 274, 275 (1955).

      . Kyle does not invoke the doctrine of stare decisis, for neither the facts- nor law are similar to the case sub judice.

      . Molly also executed a corrected warranty deed in 1953 “for the purpose of correcting an error in the description of the land which she had undertaken to convey.” Id, at 883.

      . “The record does not show the exact date-of Mrs. Wood’s death.” Id.

      . See generally Title 89 of the Mississippi Code ("Real and Personal Property”) and Title-91, chapter 5-(“Wills and Testaments”).

      . See Miss. Code Ann. § 89-1-3 (Rev. 2011).

      . See Devise, Webster's II New College Dictionary 311 (2001) ("The act of transmitting or giving real property by will.”).

      . We cannot, however, effectuate an intent that our law does not allow. For instance, property cannot be conveyed to two people who are not married to each other as an estate. by entirety.- See Ayers v. Petro, 417 So.2d 912, 914 (Miss, 1982) ("An estate by entirety may exist only in a husband and wife ....”).

      . Such a conveyance would have required no delivery to Crotwell, but Lum swore he did so. So too would it have been unusual for a remainderman to pay good and valuable consideration for a mere contingent remainder, the benefit of which could be lost before the ink dried on the document. Nor does one provide warranties to a remainderman. All militate against the dissent’s interpretation.

      . See Diss. Op. at ¶ 30.

      . Manson v. Magee, 534 So.2d 545, 548 (Miss. 1988) (citing Deason v. Cox, 527 So.2d 624 (Miss. 1988); Lackey v. Corley, 295 So.2d 762 (Miss. 1974); Rogers v. Morgan, 250 Miss. 9, 164 So.2d 480 (1964); Ford v. Jones, 226 Miss. 716, 85 So.2d 215 (1956); Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 834, 836 (1953); Gulf & S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468 (1938); Goff v. Avert, 122 Miss. 86, 84 So. 134 (1920)).

      . A present interest is "[a] property interest in which the privilege of possession or enjoyment is present and not merely future; an interest entitling the holder to immediate possession.” Present Interest, Black’s Law Dictionary 695 (abr. 9th ed.). A future interest is ‘‘[a] property interest in which the privilege of possession or of other enjoyment is future and not present.” Future Interest, Black's Law Dictionary 694 (abr. 9th ed.). Both may be presently, conveyed. For instance, if Person A executes and records a deed granting Person B a life estate—a present interest—and Person B the remainder—a future interest—both interests have been presently conveyed. The majority errs because it conflates a present conveyance with a present interest. The majority believes that because Lum delivered a deed to Crotwell, ipso facto Crotwell must have a present interest. But that has never been the law of real property. See Whittington v. Whittington, 608 So.2d 1274, 1280 (Miss. 1992) (recognizing that a remainder interest was created by the present conveyance of a deed). I agree Lum presently conveyed an interest to Crotwell. But that interest was a future one: a contingent remainder.

      . A contingent remainder is "[a] remainder that is either given to an unascertained person or made subject to a condition.” Contingent Remainder, Black’s Law Dictionary 1101 (abr. 9th ed.).

      . Kyle v. Wood, 227 Miss. 717, 86 So.2d 881 (1956).

      . Id. at 882.

      . Id.

      . Id.

      . Id. at 883.

      . Id. at 882-83.

      . Id, at 883.

      . Id. (emphasis added),

      . Maj. Op. at ¶ 9.

      . Dukes v. Crumpton, 233 Miss. 611, 103 So.2d 385, 386-88 (1958).

      . Id. at 386.

      . id. at 388.

      . Id. (emphasis added).

      . Id.

      . Maj.Op. at ¶ 14.


source: Caselaw Access Project

author: MAXWELL, JUSTICE,

license: Public Domain

text:
    The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Syrone McBeath and David Stewart v. Enoch OLIVER
    NO. 2016-IA-00892-SCT
    Supreme Court of Mississippi.
    08/24/2017

      ATTORNEYS FOR APPELLANTS: THOMAS EUGENE WHITFIELD, JR., ROBERT V. GREENLEE
    ATTORNEYS FOR APPELLEE: LYDIA ROBERTA BLACKMON, EVERETT T. SANDERS
    BEFORE WALLER, C.J., KING AND MAXWELL, JJ.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. This is an interlocutory appeal of the denial of summary judgment. The circuit court ruled Enoch Oliver could proceed to trial with his malicious-prosecution claim against University of Mississippi Medical Center (UMMC) and two of its law-enforcement officers, Syrone McBeath and David Stewart. But after de novo review, we disagree.

¶2. As a matter of law, malice-based torts do not fall under the Mississippi Tort Claims Act’s sovereign-immunity waiver. So Oliver has no malicious-prosecution claim against UMMC or its employees in their official capacity. Oliver also brought malicious-prosecution claims against the UMMC officers in their individual capacity. But the record shows Oliver failed to put forth any evidence the officers acted with malice or lacked probable cause.

¶ 3. We thus reverse the circuit court’s denial of summary judgment and render a final judgment in the defendants’ favor.

Background Facts and Procedural History

I. Confrontation with Officers

¶ 4. On the morning of January 16, 2008, Officer Deficio Stoglin responded to a domestic-violence call at UMMC’s Wiser Hospital for Women and Infants. The nurses told Stoglin they heard loud shouting in Room 310 and then saw Oliver storm out. Stoglin entered the room to interview Oliver’s wife, who had just given birth. According to Stoglin-, Oliver’s wife was visibly upset. She also had a black eye. The wife claimed Oliver had given her the black eye before she went to the hospital. But she did admit that “he definitely hit her with his hands.” Stoglin radiodd to the other UMMC officers to be on the lookout for a man matching Oliver’s description leaving Garage B. Officer Stoglin remained with Oliver’s wife, further investigating her domestic violence allegations. Instead of going home after her release from the hospital, she told Stoglin she planned to go to a hotel, because “she does not want [Oliver] near her or her children.”

¶ 5. Officer Charlene Burfield was in Garage B when she heard Stoglin’s dispatch. She immediately noticed a man matching the suspect’s description trying to exit the garage. She stopped Oliver’s van and asked him who he had been visiting. When Oliver said “Room 211,” she asked him if he was sure. Oliver backtracked and said, “No, 310 in the Wiser.” Burfield then asked him to pull behind her vehicle. At this point, Officer Cecil Lott drove up, blocking Oliver’s van from behind. Lott approached Oliver’s van and asked him to get out.

¶-6. Officers Andre Watson and David Stewart also responded 'to Stoglin’s dispatch. According to Watson, Oliver shouted at Lott and Burfield, ‘What the hell do you want, you ain’t the police.” Several times, Lott and Burfield ordered Oliver to exit the van, but he refused. When Oliver did not comply, Lott, Watson, and Stewart tried unsuccessfully to pull Oliver out of the van. That did not work either, so Officer Lott “pepper sprayed” Oliver. In response, Oliver pulled a pistol from behind his back and pointed it at Officer Lott’s face. Lott ducked. And Watson screamed “gun,” hit Oliver, disarming him, and pulled him out of the vehicle.

¶ 7. After the officers handcuffed Oliver, Officer Burfield approached the van and found a loaded .40-caliber Smith and Wesson handgun on the driver’s seat. Lott escorted Oliver to UMMG’s emergency room .for burn treatment from the pepper spray. Officer Lott then took Oliver to UMMC’s police headquarters to fill out an arrest report. Oliver was later transferred to the Hinds County jail.

II. Criminal Charges

¶ 8. That day, Oliver was charged with three misdemeanors—disorderly conduct for failure to comply with the commands of a police officer, resisting arrest, and carrying a concealed weapon. UMMC Investigator Syrone McBeath was assigned to investigate potential felony chargés. McBeath reviewed Stoglin’s, Lott’s, Bur-field’s, and Watson’s officer reports. Based on his review of the officers’ statements—which all corroborated the fact Oliver pulled a gun on Officer Lott—and the fact they recovered a gun from Oliver’s van, McBeath concluded Oliver had committed felony assault on a police officer. See Miss. Code Ann. § 97-3-7 (Rev. 2014). He presented this evidence to a county court judge, who issued an arrest warrant on January 17, 2008.

¶ 9. On February 7, 2008, Officer Lott transported Oliver to the Hinds County Justice Court for trial. According to Officer Lott, the justice-court judge dismissed the charges, reasoning the officers “had no legal right to stop and question Enoch Oliver about a domestic violence complaint since [the officers] did not arrest him on that charge.” But see Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (Miss. 1999) (holding an officer may stop a suspect for questioning if the officer has reasonable suspicion the suspect was involved in a felony); see also Qualls v. State, 947 So.2d 365, 372-73 (Miss. Ct. App. 2007) (holding that, because officer had reasonable suspicion to make an investigatory stop, suspects’ failure to comply with officer’s commands provided probable .cause to arrest suspects for disorderly conduct and resisting arrest).

¶ 10. McBeath’s investigation led po a felony charge being presented - to the grand jury, which ihdicted Oliver on April 30, 2008, for felony assault of a law-enforcement officer. But on October 14,2009, the Hinds County Circuit Court, First Judicial District, entered an order of nolle prosequi on that charge. According to the State, it could not meet its burden on all required elements of aggravated assault. The State reasoned in the order that it could prove, at most, Oliver pointed a gun at the officers. Citing Gibson v. State, 660 So.2d 1268 (Miss. 1995), the State did not believe this act .constituted an aggravated assault. According to the State, pointing a gun at a police officer merely supports a charge of simple assault. But the State neglected to point out that, under Mississippi Code Section 97—3—7(l)(b), assault on a law-enforcement officer is an aggravating circumstance, making an otherwise simple assault a felonious aggravated assault. See Hitt v. State, 988 So.2d 939, 941 (Miss. Ct. App. 2008) (noting the enhanced penalty for simple assault on a law-enforcement officer). So, contrary to the faulty reasoning in its nol-pros order— which thé circuit judge signed and entered—the State’s ability to prove Oliver pointed a pistol at Officer Lott’s face was sufficient to prove felony assault.

¶ 11. The nol-pros order also was incorrect in another material respect. According to the written order, the State could not prove simple assault because “this case is premised on three underlying offenses,” which “were dismissed on, February 7, 2008, before Oliver was indicted on April 30, 2008.” But there is no requirement under Section 97-3-7(l)(a) that any underlying offenses be committed to prove simple assault.

III. Complaint

¶ 12. On July 20, 2010—nine months after the court signed the State’s nol-pros order dismissing his felony charge and two-and-a-half years after the incident in Garage B—Oliver filed a complaint in Hinds County Circuit Court, First Judicial District. He named as defendants UMMC, Investigator McBeath, and Officers Bur-field, Lott, Watson, and Stewart. He alleged the officers “at times” were acting within the course and scope of their employment with UMMC, making UMMC vicariously liable. He also insisted that “[a]t other times,” these defendants acted outside the course and scope of their employment and thus were individually liable. Oliver brought claims of negligence, gross negligence, ■ negligence per se, defamation/libel, invasion of privacy, negligent/intentional infliction of .emotional distress, assault,, battery, false imprisonment, false arrest, and malicious prosecution based on both the misdemeanor charges and the felony charge. ■

¶ 13. UMMC, McBeath, and Stewart were served with process, but Lott, Bur-field, and Watson were not. UMMC, McBeath, and Stewart filed a motion to dismiss,, which was joined by the unserved defendants, who .specially appeared. The unserved defendants requested dismissal for Oliver’s failure to serve them with process. The served defendants argued Oliver’s claims were governed by the Mississippi Tort Claims Act (MTCA) and its one-year statute of limitations. See Miss. Code Ann. § ll-46-li(3)(a) (Rev. 2012). Thus, they asserted Oliver’s claims were time-barred. The lone exception was the malicious prosecution of the felony claim, because the one-year statute of limitations did not begin to run until that charge was nol-prossed.

¶ 14. On April 19, 2012, the circuit court entered an order of partial dismissal with prejudice:

IT IS THEREFORE ORDERED that the claims of Plaintiff Enoch Oliver against all Defendants as to Negligence and Gross Negligence, Negligence Per Se, False Imprisonment/False Arrest, Defamation/Libel, Invasion of Privacy, Negligent/Intentional Infliction of Emotional Distress, Assault, Battery, Malicious Prosecution based on the misdemeanor charges are hereby- dismissed with prejudice.
IT IS FURTHER ORDERED the claim of Plaintiff Enoch Oliver against Defendants Cecil Lott, Charlene Burfield and Andre Watson as to Malicious Prosecution for the felony charge of aggravated assault on a law enforcement officer is hereby dismissed with prejudice.

¶ 15. This order dismissed with prejudice all claims against Officers Lott, Bur-field, and Watson, leaving UMMC, McBeath, and Stewart as the only defendants. And even then, the sole remaining claim against them was the malicious-prosecution claim based on the felony charge.

IV. Motion for Summary Judgment

¶ 16. Three-and-a-half years later, UMMC, McBeath, and Stewart filed a motion for summary judgment. UMMC argued, as a state agency, it had not waived sovereign immunity for a malice-based claim. See Miss. Code Ann. § 11-46-5(2) (Rev. 2012). And McBeath and Stewart argued Oliver lacked proof they maliciously prosecuted him. Alternatively, all defendants cited the MTCA’s police-protection and discretionary-function immunity. See Miss. Code Ann. § 11^6-9(l)(c), (d) (Rev. 2012).

¶ 17. In his response, Oliver “denie[d]' that the only remaining claim in [his] lawsuit [was] for malicious prosecution pertaining to his felony charge.” Instead, he insisted “[t]he other claims pertaining to his felony charge of aggravated assault on a police office remain, namely, the claims for negligence, gross negligence, negligence per se, defamation/libel, invasion of privacy, negligent/intentional infliction of emotional distress, assault, battery, false imprisonment and false arrest, among others.”

¶ 18. On June 7, 2016, the circuit court denied the defendants’ motion, finding genuine issue's of material fact precluded summary judgment.

V. Interlocutory Appeal

¶ 19. UMMC, McBeath, and Stewart filed for—and were granted—permission to file an interlocutory appeal. On appeal, they claimed they were entitled to summary judgment based on the running of the statute of limitations, sovereign immunity, discretionary-function immunity, police-protection immunity, and/or Oliver’s failure to meet his burden of production to establish a triable malicious-prosecution claim.

¶ 20. This Court reviews the denial of a motion for summary judgment de novo, applying the same standard as the trial court. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (Miss. 2005). We view the evidence in the light most favorable to the party against whom the motion has been made. Id. “The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.” M.R.C.P. 56(c).

Analysis

I. Dismissed Claims

¶21. As their first appellate issue, the defendants argue all of Oliver’s claims— other than the alleged malicious prosecution of the felony charge—were time-barred. But the record shows all but this one claim had already been dismissed. Indeed, three years before the defendants moved for summary judgment, the circuit court dismissed with prejudice all of Oliver’s claims except malicious prosecution of the felony charge. In opposing summary judgment, Oliver argued that his negligence-based claims somehow survived dismissal. However, the circuit judge’s order of partial dismissal says otherwise. According to the order, the circuit judge expressly “dismissed Oliver’s claims of “Negligence and Gross Negligence, Negligence Per Se, False ImprisonmentyFalse Arrest, Defamation/Libel, Invasion of Privacy, Negligent/Intentional Infliction of Emotional Distress, Assault, Battery, Malicious Prosecution based on the misdemeanor charges” with prejudice. Comparing the pleadings with the order of partial dismissal, malicious prosecution based on the felony charge was the only claim left.

¶ 22. The defendants concede this claim was timely filed because the one-year statute of limitations did not begin to fun until October 14, 2009, the date the felony charges were nol-prossed. See Bankston v. Pass Rd. Tire Ctr., Inc., 611 So.2d 998, 1003 (Miss. 1992). So the statute of limitations is not at issue in this interlocutory appeal, which encompasses only the order denying summary judgment.

' II. Malicious-Prosecution Claim

A. Against UMMC and Official-Capacity Defendants

¶ 23. What is, in fact, at issue here is the application, if any, of the MTCA to a malicious-prosecution claim against a law-enforcement officer and his or her government employer.

¶ 24. The MTCA statutorily replaced the common-law doctrine of‘.sovereign immunity. Wells ex rel. Wells v. Panola Cty. Bd. of Educ., 645 So.2d 883, 889 (Miss. 1994). Section 11-46-5(1) waived “the immunity of the state and its political subdivisions from claims for money «damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment.” But the immunity waiver is not-without exception and is qualified by Section 11-46-5(2):

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental’ entity shall not be liable or' be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.

So not all claims against a governmental entity and their employees are covered by the MTCA. Zumwalt v. Jones Cty. Bd. of Supervisors, 19 So.3d 672, 688 (Miss. 2009). That being the case, the question this Court must answer is—does a claim that a government employee committed malicious prosecution fall under the MTCA? See id. (holding that, because the MTCA “provides specific exclusions to its protections and requirements, ... each claim must be examined for MTCA application”).

¶ 25. This is an issue of first impression for this Court. The Mississippi Court of Appeals has held the MTCA applied to a malicious-prosecution claim against Simpson County and its sheriff. Keen v. Simpson Cty., 904 So.2d 1157, 1161 (Miss. Ct. App. 2004) (finding Simpson County exempt from liability based on Mississippi Code Section 11—46—9(1)(c)). And federal courts applying Mississippi law have gone both ways. In some cases, the Fifth Circuit and district courts have held malicious-prosecution claims fell under the MTCA. While more recently, the Fifth Circuit and district courts have recognized the MTCA—specifically Section 11-46-5(2)— excludes malice-based torts, so malicious-prosecution claims can be brought only against the officers individually.

¶ 26. Here, the appellants and the appel-lee appear to want it both ways.

¶ 27. UMMC argues the MTCA does not apply to Oliver’s claim against it, because conduct constituting malice is outside the course and scope of employment. Therefore, UMMC cannot, as a matter of law, be liable for the alleged malicious prosecution committed by its employees. Investigator McBeath and Officer Stewart, on the other hand, argue the MTCA does apply to Oliver’s claims against them, because at all relevant times they were acting within the course and scope of their employment with UMMC. This, they suggest, shields them from personal liability. And in their official capacity, they suggest they enjoy police-protection immunity.

¶ 28. Similarly, Oliver argues the MTCA does, and does not apply. Oliver agrees with McBeath and Stewart that the UMMC officers “were acting within the course and scope of their employment during the entire course of the sordid ordeal that gave rise to this litigation.” For that reason, Oliver contends UMMC is vicariously liable for its employees’ actions under the MTCA. But Oliver also asserts McBeath acted with malice by seeking a warrant and later a felony indictment for aggravated assault. If what Oliver asserts is true—that its officer acted maliciously— then as a matter, of law, UMMC cannot be liable because the MTCA does not apply.

' ¶ 29. The obvious problem is that neither side can have it both ways. Either the MTCA applies or it does not. And based on the clear language of Section 11-46-5(2), we hold the MTCA does not apply to a malicious-prosecution claim against a governmental entity and its employees in their official capacity.

¶ 30., Under Section 11-46-5(2), torts in which malice is an essential element “are not within the. course and scope of employment.” Zumwalt, 19 So.3d at 688. “Thus, these intentional torts are outside the scope of the MTCÁ’s waiver of immunity, and the MTCA does not apply.” Id. Rather, “any legal action against a governmental employee for these intentional torts must necessarily proceed against him or her as an individual.” Id.

¶ 31. Malice is an essential element of malicious prosecution. Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss. 1991). This means, to prove UMMC’s officers committed malicious prosecution, Oliver must prove the officers acted with malice., If- he meets this .burden, then necessarily-ne has proven they were acting outside the course and scope of their employment foiv‘pur-poses of the MTCA. See Miss. Code Ann. § 11-46-5(2) (Rev. 2012); see also. Miss, Code Ann. § 11-46-7(2) (Rev. 2012) (containing identical provision).

¶ 32. For UMMC, this means, as. a’matter of law, it cannot be liable, and sovereign immunity cannot be considered to have been waived for the alleged malicious conduct of its officers. So the circuit court erred by not granting UMMC summary judgment on this basis.

B. Against Individual Defendants

¶ 33. For McBeath and Stewart, this means Oliver’s malicious-prosecution action necessarily proceeds against them in their individual capacities. See Zumwalt, 19 So.3d at 688. Because the MTCA does not apply, Section 11-46-7(2) does not act as a shield against individual liability. See Miss. Code Ann. § 11-46-7(2); see also Rogers v. City of Tupelo, Miss., 2015 WL 3450266, at *12. Nor can they claim one of Section ll-46-9(l)’s exemptions to liability applies. See Miss. Code Ann. § 11-46-9(1) (Rev. 2012). For this reason, we overrule Keen to the extent the Court of Appeals applied Section ll-46-9(1)(c) to the malicious-prosecution claim against Simpson County and its sheriff. See Keen, 904 So.2d at 1161.

¶ 34. Still, we find McBeath and Stewart- are entitled to summary judgment on Oliver’s malicious-prosecution claim. To recover for malicious prosecution, a plaintiff must prove six essential elements: “(1) the institution of a criminal proceeding; (2) by, or at the instance of, the defendant; (3) termination of such proceedings in plaintiffs favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) the plaintiffs suffering of injury or damage as a result of the prosecution.” Strong, 580 So.2d at 1293 (citations omitted).

¶35. At the summary-judgment stage, Oliver’s burden of proof became a burden of production. Oliver had to present sufficient evidence to establish each of these essential elements. See Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 89 (Miss. 2013). If he fails to establish malice, then he has no triable malicious-prosecution claim. See Rogers v. Lee Cty., Miss., 684 Fed.Appx. at 391 (rejecting officer’s argument that MTCA immunity applied but still affirming the grant of summary judgment based on the plaintiffs failure to show a genuine issue of material fact on the element of malice).

¶ 36. So what is “malice” for purposes of malicious prosecution? As we- explained in Strong, “malice in the law of malicious prosecution is a term used in an artificial and legal sense.” Strong, 580 So.2d at 1293. “It connotes a prosecution institutéd primarily for a purpose other than that of bringing an offender to justice.” Id. (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1191 (Miss. 1990); Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 444 (Miss. 1986); Owens v. Kroger Co., 430 So.2d 843, 847 (Miss. 1983); State Life Ins. Co. of Indianapolis v. Hardy, 189 Miss. 266, 277, 195 So. 708, 713 (1940)). “As such, it refers to the defendant’s objective, not his attitude.” Id. (emphasis added).

¶37. In light of this definition, when suing a law-enforcement officer for malicious prosecution, a plaintiff like Oliver has to show the officer instituted criminal proceeding with a purpose other than doing his or her job, which includes bringing criminal offenders to justice. This is a high bar. As the Louisiana Supreme Court has described it: “Malice is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to ‘tie up the mouths’ of witnesses in another action, or as an experiment to discover who might have committed the crime.” Miller v. E. Baton Rouge Par. Sheriff’s Dep't, 511 So.2d 446, 453 (La. 1987). After a de novo review of the record, we find Oliver’s evidence, even when viewed favorably, failed to reach this bar.

¶ 38. As to Stewart, his involvement was limited. According to the record, he merely helped Lott and Watson remove Oliver from the van. Stewart did not file misdemeanor charges nor did he author one of the incident reports that led to Oliver’s felony arrest. So Oliver has no evidence Stewart initiated criminal proceedings against Oliver—let alone that he did so with a malicious objective. Thus, Oliver has no malicious-prosecution claim against this defendant. .

¶ 39. Instead, Oliver’s malicious-prosecution allegations are lodged against Investigator McBeath. While Oliver claims McBeath acted maliciously, he concedes McBeath acted within the course and scope of his employment as an law-enforcement officer with UMMC. So taking _ this concession at face value, McBeath could not have acted with malice. See Strong, 580 So.2d at 1293 (emphasizing malice “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice”).

¶ 40. But even if Oliver’s concession that McBeath was acting in the course and scope of his employment, itself, does not preclude a jury finding of malice, Oliver still failed in his burden. .

¶ 4L In his brief, Oliver gives two reasons why McBeath acted with malice in bringing the felony charge against him. His first is that McBeath “increased the gravity of the charge” from simple assault to aggravated assault on a police officer. According to Oliver, Officer Lott, the assault victim, had charged Oliver only with simple assault, while McBeath, who was not even there, charged him with felony assault. But the fact McBeath recommended a felony charge, itself, certainly is not evidence of malicious intent. According to McBeath’s affidavit, his job required he review incident reports to determine if a felony had been committed. And bas.ed on Officer Lott’s report—which was corroborated by two other officer reports—Investigator McBeath had sufficient evidence to determine Oliver’s uncontested act of pointing a pistol at Officer Lott’s face constituted a- felony. See Miss. Code Ann. § 97-3-7(l)(b) (Rev. 2014).

¶42. Second, Oliver asserts McBeath “misrepresented the facts” when securing the arrest warrant for the felony charge. Oliver suggests McBeath “shaded the truth in the underlying fact sheet” and “conveyed the idea that Oliver had engaged in domestic violence at Wiser Hospital and had attempted to flee the scene.” He insists McBeath did so though he “knew that Oliver was not involved in any domestic abuse at the hospital and that Stoglin did not convey this to the other officers.”

¶ 43. Nothing in the record supports this claim. Instead, .the record shows McBeath read Officer Stoglin’s report as part of his investigation. According to that report, Stoglin responded to a “domestic violence call.” Oliver’s wife had just given birth. And the nursing staff reported the couple was “arguing loudly” and Oliver had “stormed out of the room.” Oliver’s wife had a “black eye” and “was visibly upset.” She claimed he gave her the black eye in an earlier fight. But she reported he “definitely hit her with his hands.” In light of this, Stoglin notified officers to be on the lookout for Oliver. So Oliver has no support for his contention that the reviewing investigator, McBeath, knowingly misrepresented facts about Oliver’s actions toward his wife to obtain a felony arrest warrant.

¶44. Nor can Oliver show McBeath lacked probable cause to bring the felony charge—another essential element of malicious prosecution. See Strong, 580 So.2d at 1293. Oliver argues the order of nolle pro-sequi sufficiently establishes McBeath lacked probable cause to press the felony charge. This is wrong for two reasons.

¶ 45. First, the reasoning underlying the nol-pros order was not legally sound. Under Mississippi law, pointing a loaded pistol in an officer’s face certainly supports felony assault. Second, and most important to our analysis, probable cause is not determined after the fact. Instead, when evaluating probable cause, this Court “look[s] to the facts reasonably available to each Defendant at the time he initiated the said-to-be-malicious prosecution.” Id. at 1294 (emphasis added). So the fact the felony charge was later nol-prossed and the reasons given cannot establish lack of probable cause at the time the charge was made. The undisputed facts available to McBeath on January 17, 2008—the date he initiated the felony prosecution—were that Oliver pointed a gun in the officer’s face, who ducked to avoid being shot. So at the time, McBeath clearly had probable cause to arrest Oliver for felony assault.

¶ 46. Because McBeath failed to meet his burden of production—to establish a triable malicious-prosecution claim against the individual defendants, McBeath and Stewart—the circuit court erred when it found a genuine issue of material fact prevented entry of summary judgment in their favor.

Conclusion

¶ 47. UMMC is entitled to a judgment as a matter of law, as it cannot be liable for the alleged malicious conduct of its employees. Stewart is entitled to summary judgment because Oliver makes no claim he committed malicious prosecution. And McBeath is entitled to summary judgment because Oliver failed to establish genuine issues of material fact that McBeath acted with malice and lacked probable cause.

¶ 48. We thus reverse the order denying the defendants summary judgment on Oliver’s malicious-prosecution claim. Because Oliver has no remaining claims, we render a final judgment in the defendants’ favor.

¶ 49. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ„ KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . See Miss, Code Ann, § 97-35-7 (Rev. 2014) (disorderly conduct); Miss. Code Ann. § 97-9-73 (Rev. 2014) (resisting arrest); Miss. Code Ann. § 97-37-1 (Rev. 2014) (carrying a concealed weapon),

      . Though Investigator McBeath usually interviewed suspects personally, he did not here because Oliver invoked his Fifth Amendment right to remain silent,

      . That said, Oliver’s remaining claims appear to have been properly dismissed as -time-barred. For his negligence-based claims, Oliver concedes the UMMC officers were acting within the course and scope of their employment. Thus, the MTCA and its one-year statute of limitations applied. See Miss. Code Ann. §§ 11-46-7 and 11-46-11(2) (Rev. 2012). His intentional-tort claims—even if they fell outside the MTCA—were still subject to a' one-year statute of limitations. See Miss. Code Ann. § 15-1-35 (Rev. 2015). So all dismissed claims had been subject to a one-year statute of limitations. And this one-year time limit to file suit began to run on January 16, 2008, making Oliver's July 20, 2010 complaint untimely. The lone exception was malicious prosecution, because Section 15-1-35’s one-year statute of limitations did not begin to run until the felony charge was nol-prossed on October 14, 2009. See Bankston, 611 So.2d at 1003.

      . E.g., Porter v. Farris, 328 Fed.Appx. 286, 288-89 (5th Cir, 2009) (per curiam) (applying Keen, 904 So.2d at 1161); Harrison v. Yalobusha Cty., No. 3:09cv106-SA-JAD, 2010 WL 3937964, at *11-12 (N.D. Miss. Oct. 5, 2010) (applying MTCA to a malicious-prosecution claim).

      . E.g., Rogers v. Lee Cty., Miss., 684 Fed.Appx. 380; 391 (5th Cir. 2017) (unpublished) (affirming in part Rogers v. City of Tupelo, Miss,, No, 1:13cv243-SA-DAS, 2015 WL 3450266, at *11-12 (N.D. Miss. May 29, 2015)); Tuma v. Jackson Mun. Airport Auth., No. 3:09cv517-DPJ-FKB, 2012 WL 1229133; at * 6 n.7 (S.D. Miss. Apr. 10, 2012) (rejecting defendant’s argument that malicious-prosecution claim was barred by police-protection exemption since the MTCA excludes such conduct from the course and, scope of employment); McBroom v. Payne, No. 1:06cv1222-LG-JMR, 2010 WL 3942010, at *9 (S.D. Miss. Oct. 6, 2010) (concluding claims of battery, assault, and intentional infliction of emotional distress cannot be considered within a police officer’s "course and scope of employment” under the MTCA).

      . We note that, three years later in his deposition, Officer Lott testified he charged Oliver with simple assault the day of his arrest. But official court documents show the three charges brought on January 16, 2008, were disorderly conduct, resisting arrest, and carrying a concealed weapon.


author: RANDOLPH, PRESIDING JUSTICE,

text:
    SCOTT PENN, INC., Austin, Inc., Kent Hillman Logging, Inc., Winona Hardwood, Inc., Tallahatchie Hardwood, Inc., Greg Winstead Logging, Inc. and Southern Logging, Inc. v. MISSISSIPPI WORKERS’ COMPENSATION GROUP SELF-INSURER GUARANTY ASSOCIATION
    NO. 2016-CA-00944-SCT
    Supreme Court of Mississippi.
    08/31/2017

      ATTORNEYS FOR APPELLANTS: KATHRYN LINDSEY WHITE, JAMES D. SHANNON

      ATTORNEYS FOR APPELLEE: JENNIFER HUGHES SCOTT, ANDREW D. SWEAT, KIMBERLY NELSON HOW-LAND
    BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶1, The Mississippi Workers’ Compensation Group Self-Insurer Guaranty Association (“Guaranty Association”) was ordered by the Mississippi Workers’ Compensation Commission (“Commission”) to assess former members of the Mississippi Comp Choice Workers’ Compensation Self-Insurers Fund (“Comp Choice”). Subsequently, the Guaranty Association filed suit in the Madison County Circuit Court to collect the assessments. Former members of Comp Choice appealed the circuit court’s grant of summary judgment in favor of the Guaranty Association. Finding no error, we affirm the judgment of the Madison County Circuit Court, as to Austin Inc.-Randolph, MS and Winona Hardwood, Inc.

FACTS AND PROCEDURAL HISTORY

¶2. On January 20, 2009, the Commission entered an order accepting the-surrender of Comp Choice’s Certificate of Authority and terminated Comp Choice’s status as an approved group self-insurer fund. Subsequently, the Commission

identified. several failures by Comp Choice to satisfy its obligations and requirements as a self-insurer, and despite repeated attempts by the Commission and Comp Choice to rehabilitate these wrongs, surrender of the Certificate became the only viable option at the end of the day. Based on the facts leading to the surrender of the Certificate of Authority, the Commission eould easily find Mississippi Comp Choice to be a “self-insurer in default” pursuant to the broad definition of such found in § 71-3-157, and we do hereby find that in several respects, Mississippi Comp Choice has "failed to satisfy many of its obligations under the Mississippi Workers’ Compensation Law, Such default, which we hereby find to have occurred as of the effective date of surrender of Certificate, or as of January 20, 2009, by operation of statute authorizes this transfer of responsibility- to the Group Guaranty Association for the administration and payment of. the workers’ compensation liability of the Fund,.,.
The Commission- finds that the indemnity agreements required by Commission General Rule 7, which jointly and severally bind all members of. Mississippi Comp Choice to meet the workers’ compensation obligations of each and every other member, are valid and enforceable. The Commission further finds that should the remaining assets of Mississippi Comp Choice be exhausted in the payment and administration of claims, the Group Guaranty Association should then look to the enforcement of those agreements including making any assessments necessary to satisfy those financial obligations.

The Guaranty Association is a “statutorily created legal entity formed to provide a mechanism for payment of covered claims under the Workers’ Compensation Law, to avoid financial loss to claimants because of the insolvency of a group self insurer, and to provide an association to assess the cost of such protection among self-insurers.”

¶3. On April 19, 2010, the Commission found that “a careful evaluation of the remaining assets and outstanding claims unfortunately shows an insufficient amount of Comp Choice assets to cover the projected claim payout.” The Commission ordered an assessment in the amount of $1,948,463 of the former members of Comp Choice for the last four years showing losses. The amount was necessary to “cover the fund deficiency, the proper estimated value of non-current assets, and the anticipated administrative and legal fees.” The Commission ordered that all assessments be calculated based on each member’s share of the total premiums earned and be paid within sixty days of receiving the assessment notice. The Commission also imposed a 5% per month fine, with a minimum fine of $100, for any member failing to timely pay the assessment.

' ¶4. On May 18, 2010, former members of Comp Choice filed a Notice of Appeal in the Hinds County Circuit Court, challenging the April 19, 2010, order of the Commission. Comp Choice asserted that the order and assessment (1) were not supported by substantial evidence and law; (2) were arbitrary and capricious; (3) were beyond the power of the Commission; and (4) violated statutory and/or constitutional rights of Comp Choice. Comp Choice requested that the appeal act as supersedeas to the Commission’s order. However, that request, filed more than seven years ago, has been neither granted nor denied by the Hinds County Circuit Court.

¶5. Pursuant to the Commission’s order, AmFed, as designee of the Guaranty Association, invoiced all former members of Comp Choice for their specific shares of the assessment. On August 24, 2010, more than sixty days after invoicing Comp Choice members and not receiving payment, the Guaranty Association filed suit in the Madison County Circuit Court, against former members of Comp Choice.

¶6. The Guaranty Association alleged that Austin, Inc., was a member of Comp Choice during fund years ending 2003, 2004, and 2006. Austin, Inc., was assessed $25,823 for its pro rata share of the total assessment.

¶7. The Guaranty Association alleged that Winona Hardwood, Inc., was a member of Comp Choice during fund years ending 2003 and 2004. Winona Hardwood, Inc., was assessed $3,596 for its pro rata share of the total assessment.

¶8. The former membei-s of Comp Choice filed a motion to dismiss, arguing that the Guaranty Association ignored their right of appeal and that the action was not ripe for consideration, was improper, and/or wa,s premature and should be dismissed. They also argued that the Guaranty Association’s claims against Comp Choice were compulsory counterclaims which should have been raised as cross-appeals in the Hinds County action.

¶9. The Guaranty Association opposed the motion to dismiss, arguing that (1) the specific Comp Choice members were not identified in the Hinds County appeal; (2) even if they were identified, the appeal does not act as supersedeas and does not prevent the Guaranty Association from collecting the assessment; (3) the Guaranty Association did not challenge any part of the Commission’s order, maintaining that it is valid and enforceable; and (4) the two suits did not have the same witnesses, evidence, law, facts, or parties. The Madison County Circuit Court denied Comp Choice’s motion to dismiss.

¶10. The Guaranty Association filed motions for summary judgment against the Comp Choice former members, ■ arguing that each defendant was a former member of Comp Choice and was statutorily obligated to pay the covered workers’ compen.sation claims of its members. All former members had agreed contractually via an indemnity agreement to be jointly and severally liable for all workers’ compensation obligations of Comp Choice for losses which occurred in the fund years during which the specific defendant was a member.

¶11. In response, former members of Comp Choice disputed the debt as a whole and the amount of the debt. They also made the same arguments regarding the Hinds County appeal as it did in its motion to dismiss. They asserted that there was no evidence that all of the funds had been exhausted; therefore, the indemnity agreement could not be enforced. They argued that there was no evidence supporting the $1,948,463 total, nor was there any evidence to support the specific amounts owed by each former member. They further claimed that there was no accounting to explain why the fund, which was operating at $2,984,800.58 in March' 2009, had only $774,168.40 a year later. They contended that additional time was needed to seek discovery regarding the figures.

¶12. After considering documentary and testamentary evidence, the circuit court granted the Guaranty Association’s motions for summary judgment. The trial court found that:

a valid order-from the Mississippi Workers’ Compensation Commission (“Commission”) dated April 19, 2010, imposes the assessment liability at issue in this action. The Court further finds that each of thesé Defendants could have been held liable for the full amount of the Mississippi Comp Choice assessment of $1,948,463 under said Commission Order, pursuant to the indemnity agreement executed by each Defendant as a condition of membership in the Mississippi Comp Choice Self-Insurers Fund, and that each Defendant is liable to the Plaintiff for the amount of its individual assessment as set forth in the Motions! The Court is aware that some former members of the Mississippi Comp Choice have appealed that Commission Order in the Circuit Court of Hinds County and that said appeal is currently pending before that Court. However, the Court further finds that, to the extent the instant Defendants are parties to the Hinds County appeal, they could have obtained an order from that Court directing the appeal to act as supersedeas, but did not.
The Court further finds that Defendants’ request for additional time pursuant to M.R.C.P. 56(f) is not well taken and should be' denied. This case has been pending since 2010 and Defendants have had sufficient time to conduct necessary discovery prior to this ruling.

The Court furthér ordered that each of the remaining defendants were responsible for the following amounts:

Winona Hardwood, Inc., in the total amount of $14,744; and
Austin, Inc., in the total amount of $105,874.

The remaining members of Comp Choice timely filed notice of appeal, raising only one issue: Whether the trial court’s June 2, 2016, Order Granting Summary Judgment and Judgment of Dismissal was in error.

STANDARD OF REVIEW

¶13. It is well-settled that this Court applies a de novo standard of review to a circuit court’s grant or,denial of summary judgment. Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss. 2012). Summary judgment is appropriate “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 a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss. 1993). However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

ANALYSIS

¶14. The remaining members of Comp Choice argue that issues remain in dispute as to whether the former members owe any debt and whether the Commission’s assessment order is valid, thus precluding summary judgment. However, they attack the validity of the Commission order, an issue not before the Madison County Circuit Court and not relevant to this collection action. That issue is currently before the Hinds County Circuit Court, with no action taken since 2013 when the final appellate brief was filed.

¶15. The Guaranty Association argues that the undisputed facts established that each of the former members of Comp Choice (1) was a member of the Comp Choice Fund for the years corresponding to the Defendant’s pro rata share of the assessment; (2) had executed an Indemnity Agreement making the Defendant jointly and severally liable for the workers’ compensation claims of Comp Choice; (3) had beén given notice of the assessment and its liability for the same; and (4) had not paid its assessment amount. Therefore, the Guaranty Association was entitled to judgment as a matter of law.

¶16. The remaining members of Comp Choice submitted no evidence in response to the motions for summary judgment. While they did request additional time for discovery, the trial court denied the request, for this action had been pending for more than five years. During that time, the former members of Comp Choice did not initiate any discovery to obtain the information they claimed they needed to avoid summary judgment.

¶17. Moreover, Comp Choice’s appeal in the Hinds County Circuit Court does not bar Guaranty Association’s right to collect the assessment, absent a supersedeas order from that Court or an appeal bond. Although Comp Choice requested a super-sedeas order, the Hinds County Circuit Court has not ruled on that issue. Comp Choice has had more than six years to obtain a supersedeas order from the court to stay this collection action. However, Comp Choice has failed to obtain the necessary order.

¶18. A motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure “tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact.” Children’s Med. Group, P.A v. Phillips, 940 So.2d 931, 934 (Miss. 2006) (quoting Stuckey v. Provident Bank, 912 So.2d 859, 865-66 (Miss. 2005)).

Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings, nor may they escape ‘summary judgment by outlining what they might discover later.

Franklin Collection Serv. v. Kyle, 955 So.2d 284, 291 (Miss. 2007). Rule 56 does not provide for evidence which might be introduced or developed at trial. The non-moving party must produce any such evidence in opposition to the motion. Commercial Bank v. Hearn, 923 So.2d 202, 210 (Miss. 2006). “It is thus incumbent upon a plaintiff to respond to a motion for summary judgment by demonstrating material factual disputes.” Id. This Court will reverse a trial court’s decision to grant summary judgment only if triable issues of fact exist. Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1041 (Miss. 2003).

¶19. A mere allegation by the nonmoving party that a dispute over whether a material fact exists will not defeat a movant’s otherwise properly supported motion for summary judgment. Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765 (Miss. 2000). Additionally, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. The question is whether all the evidence before the lower court, viewed in a light most favorable to the appellants, demonstrates no material factual dispute. In today’s case, the appellants’ allegations that a material fact exists is insufficient to reverse the circuit court’s decision.

¶20. There exists no genuine dispute of material fact as to whether the Guaranty Association was entitled to judgment as a matter of law. The trial court properly found that Austin, Inc.~Randolph, MS and Winona Hardwood, Inc. failed to timely pay the amounts assessed to each member.

CONCLUSION

¶21. We affirm the judgment of the Madison County Circuit Court .granting summary judgment in favor of the Guaranty Association as to Austin, Inc,-Randolph, MS and Winona Hardwood, Inc.

¶22. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Although the Guaranty Association filed suit against fifty-three members of Comp Choice, only seven former members initially were involved in today’s appeal. Other members paid the amounts invoiced or the Guaranty Association has' obtained a default judgment against them. Prior to this Court’s issuance of its opinion, defendants Greg Winstead Logging, Inc.; Kent Hillman Logging, Inc.; Scott Penn, Inc.; Southern Logging,' Inc.; and Tallahat-chie Hardwood, Inc. agreed to a compromise •settlement of their dispute with the Guaranty Association and filed a joint motion to dismiss,- which is being - contemporaneously granted by this Court. Only two defendants remain in this appeal. They are Austin, Inc.Randolph, MS and Winona Hardwood, Inc.

      . These amounts include the 5% per month fine imposed by the Commission.