         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CA-01006-COA

BRENDA FRANKLIN                                                           APPELLANT

v.

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

DATE OF JUDGMENT:                               06/16/2014
TRIAL JUDGE:                                    HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                      RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        BRENT HAZZARD
                                                SORIE S. TARAWALLY
                                                KELLY GUNTER WILLIAMS
ATTORNEYS FOR APPELLEES:                        FRANCES R. SHIELDS
                                                KATRINA SANDIFER BROWN
NATURE OF THE CASE:                             CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                        SUMMARY JUDGMENT GRANTED TO
                                                APPELLEES
DISPOSITION:                                    AFFIRMED - 03/29/16
MOTION FOR REHEARING FILED:                     04/28/2016: DENIED; AFFIRMED:
                                                03/21/2017
MANDATE ISSUED:

       EN BANC.

       BARNES, J., FOR THE COURT:

               MODIFIED OPINION ON MOTION FOR REHEARING

¶1.    The motion for rehearing is denied. The previous opinion of this Court is withdrawn,

and this opinion is substituted in its place.

¶2.    This appeal stems from a complaint filed on February 19, 2013, by Brenda Franklin,

a tenant of Golden Age Apartments, against Cornelius Turner d/b/a Golden Age Apartments
and Major Management (collectively referred to as “Turner”), and Robert Swinney, seeking

$1,000,000 in damages. The complaint alleged that Swinney, the caretaker/employee of the

apartment complex, was liable for assault and battery against Franklin. It further alleged

Turner breached a duty to protect residents from the actions of its employee and was liable

for its failure to monitor and maintain safe premises. Finally, the complaint asserted that all

defendants were liable for false imprisonment, gross negligence, and intentional/negligent

infliction of emotional distress.1

¶3.    According to Franklin, Swinney came to the door of her apartment at approximately

5:30 p.m. on January 20, 2012, saying that her dog had gotten loose and bitten another tenant.

He allegedly told her the police had been called, and she allowed him in her apartment to

wait. Though Franklin claimed that she did not know Swinney, she fed him dinner. After he

had eaten, she asked him to leave, but he sexually assaulted her and stayed at her apartment

until early the next morning.2

¶4.    Franklin did not report the attack until January 23, 2012, when she told Billy Joe

White, the complex’s former caretaker with whom she had a prior relationship, about the

incident.3 Over Franklin’s objections, White contacted the police. Law enforcement came


       1
        The complaint inaccurately states that the assault occurred on February 20, 2012,
and that Franklin reported it to police on that same day.
       2
         For purposes of summary judgment, we accept these statements as true. See Nelson
v. Sanderson Farms Inc., 969 So. 2d 45, 52 (¶14) (Miss. Ct. App. 2006) (“On summary
judgment, we are required to accept all evidence and inferences favorable to the plaintiff’s
case as true.” (citing Harris v. Shields, 568 So. 2d 269, 275 (Miss. 1990))).
       3
        There is disputed evidence whether White was still the caretaker at the time of the
incident. He was in the hospital when the attack occurred, and while Franklin contends

                                              2
to Franklin’s apartment to question her, and she was sent to the hospital for examination.

Her medical records indicated no apparent injuries, and there had been too much passage of

time since the attack to collect any lab specimens. Swinney was arrested, and after spending

three months in jail because he could not post bail, he entered an Alford plea to attempted

aggravated assault.4 He received ten years in the custody of the Mississippi Department of

Corrections (MDOC), with nine years and 272 days suspended, ninety-three days served, and

five years of supervised probation.

¶5.    Swinney, however, has continued to protest his innocence, testifying that he had a

prior consensual sexual encounter with Franklin, and she had invited him over for dinner that

evening. The record does contain substantial contradictory testimony about the events

surrounding the incident. Although Franklin initially claimed she had never seen or met

Swinney prior to the attack, she later admitted that she had his phone number and called him

after the attack. Subpoenaed phone records show that between the time of the assault and

Swinney’s arrest, Swinney and Franklin sent several text messages to one another.

¶6.    Additionally, Franklin claimed that she sat in her tub “scrubbing her skin” for hours

that following morning after Swinney left and saw no one that day. But she subsequently

admitted that she let Swinney back into the apartment that following day to fix her tub.

Another man, Richard Boyd, confirmed that he and Swinney had been in Franklin’s

apartment to fix her tub on January 21, 2012. A neighbor, Joyce Kimball, testified that she


Swinney was caretaker when he assaulted her, Turner management testified that White was
not released from his caretaking duties until January 31, 2012.
       4
           See North Carolina v. Alford, 400 U.S. 25 (1970).

                                              3
saw Swinney go into Franklin’s apartment on January 20, and heard laughing and giggling

coming from Franklin’s apartment until Kimball feel asleep at midnight. Kimball said she

witnessed Swinney leaving the next morning and “heard Mrs. Franklin telling Mr. Swinney

to return soon to make some repairs to her apartment.”

¶7.    On April 2, 2014, Turner filed a motion for summary judgment, or in the alternative,

a partial motion for summary judgment, claiming that Swinney was not its employee at the

time of the alleged assault and maintaining that Swinney did not sexually assault Franklin.

Turner also submitted an alternative argument that even if Swinney were an employee, he

was acting outside his scope of employment “had he committed a sexual act toward Franklin

while ‘on-duty.’” Franklin filed a motion to extend deadlines on April 29, 2014, and a

response to Turner’s summary-judgment motion on May 12, 2014, arguing Turner had

“ratified” Swinney’s actions by continuing his employment as a caretaker after he had

entered his felony guilty plea.

¶8.    After a motions hearing held on May 28, 2014, the circuit court granted Turner’s

motion for summary judgment on May 30, 2014, finding that Turner had met its burden of

proof that Swinney was not an employee “who was acting within the course and scope of his

duties at the time of the alleged attack” and that Turner had no knowledge that Swinney “may

have a violent nature or that an atmosphere of violence exists on [its] premises.” Noting that

while it “may be a question for the jury as to whether . . . Swinney was an employee or agent”

at the time of the attack, the court concluded “that the alleged sexual assault of [Franklin] by




                                               4
Swinney was not within the scope of his employment, if any.”5 The circuit court further held

that retaining Swinney as an employee after his entry of a guilty plea for attempted

aggravated assault, while “ill-advised,” was “insufficient to impose liability on the Turner

defendants for the original acts.” The circuit court denied Franklin’s motion for an extension

of deadlines, finding the issue was rendered moot based on its grant of summary judgment.

¶9.    The circuit court entered a final order under Mississippi Rule of Civil Procedure

54(b).6 Franklin asserts two issues on appeal: (1) whether the circuit court erred in granting

Turner’s motion for summary judgment; and (2) whether the court erred in denying

Franklin’s motion to extend deadlines. Finding the circuit court did not err in granting the

motion for summary judgment, we affirm. Franklin’s second issue is thereby rendered moot

by our decision.

                                        DISCUSSION

       Whether the circuit court erred in granting summary judgment.

¶10.   We conduct a de novo review of a circuit court’s grant or denial of summary

judgment. Hubbard v. Wansley, 954 So. 2d 951, 956 (¶9) (Miss. 2007) (citing Leffler v.

Sharp, 891 So. 2d 152, 156 (¶9) (Miss. 2004)). “Summary judgment is appropriate when the

evidence is considered in the light most favorable to the nonmoving party, there are no

genuine issues of material fact, and the moving party is entitled to judgment as a matter of

law.” Id. (citing M.R.C.P. 56(c)).


       5
       While the circuit court uses the term “alleged,” we decline to utilize that term, as
Swinney did enter a guilty plea to attempted aggravated assault.
       6
           Swinney is not a party to this appeal.

                                                5
       A.      Whether Swinney was Turner’s employee.

¶11.   Franklin claims that the circuit court erred in accepting Turner’s assertion that

Swinney was not an employee and in failing to apply the employee/independent contractor

test. However, the record shows the circuit court, in fact, made no determination as to

Swinney’s employment status in its order. Rather, it recognized that it “may be a question

for [a] jury” whether Swinney was an employee on the day of the attack. The circuit court,

instead, went on to address the necessary question of “whether the alleged actions took place

within the scope of [Swinney’s] employment.” Thus, it clearly gave the benefit of the doubt

to Franklin, the nonmovant, on this issue, reaching its decision to grant summary judgment

based on the assumption that, even if Swinney was an employee, Turner could not be held

vicariously liable for Swinney’s alleged tort, as he was acting outside any scope of

employment.7

¶12.   We find no error in the circuit court’s analysis. “An ‘employer is responsible for the

torts of its employee only when the torts are committed within the scope of the

employment.’” Parmenter v. J & B Enters. Inc., 99 So. 3d 207, 215-16 (¶14) (Miss. Ct. App.

2012) (emphasis added) (quoting Favre v. Wal-Mart Stores Inc., 820 So. 2d 771, 774 (¶5)

(Miss. Ct. App. 2002)). “[A] master is not liable for its employee’s actions if the employee

‘abandoned his employment and went about some purpose of his own not incidental to the

       7
         Whether Swinney is an employee of Turner, while a disputed question of fact, is
therefore not a material issue of fact. See Bradley v. Kelley Bros. Contractors, 117 So. 3d
331, 338 (¶27) (Miss. Ct. App. 2013) (“To survive summary judgment, it is not enough that
disputed facts exist – such facts must also be material . . . in an outcome determinative
sense.” (citing Citifinancial Retail Servs. v. Hooks, 922 So. 2d 775, 779 (¶18) (Miss.
2006))).

                                             6
employment.’” Id. at 216 (¶14) (quoting Favre, 820 So. 2d at 774 (¶5)). In Adams v.

Cinemark USA Inc., 831 So. 2d 1156, 1157-58 (¶¶1-5) (Miss. 2002), a patron brought suit

against Cinemark under the doctrine of respondeat superior for injuries sustained when a

Cinemark employee struck the patron after refusing to admit the patron and two minors to

an R-rated film. Evidently, the patron and employee exchanged harsh words prior the

altercation. The box office employee’s duties included selling movie tickets and handling

money. Id. at 1158 (¶2). The on-site manager stated in a deposition that employees were

trained to avoid confrontation with a patron and to get a manager if a dispute arose. Id. at

(¶6). The supreme court concluded the employee’s assault of the patron was not incidental

to her employment, reasoning: “[The employee’s] act was motivated by personal animosity.

She was never vested with any duty on that day other than selling tickets. She assaulted [the

patron] because of her anger, not because she was concerned about protecting Cinemark’s

property or increasing Cinemark’s profit.” Id. at 1160 (¶13). Therefore, summary judgment

was properly granted, as there was no genuine issue of material fact as to whether the

employee was acting within the scope of her employment in the assault of the patron. Id. at

1161 (¶16).

¶13.   Assuming Swinney was employed as a caretaker for Turner at the time of the attack,

nothing within his job description required him to assault Franklin in her apartment. Thus,

Swinney would have been acting for purposes unrelated to his employment. Furthermore,

as Franklin acknowledges in her reply brief, she “has never argued that the attack was within

. . . Swinney’s scope and course of employment.” We find no error in the circuit court’s



                                             7
grant of summary judgment to Turner based on the theory of respondeat superior, and we

affirm the court’s judgment on this issue.

       B.     Whether Turner is liable for negligently hiring and retaining Swinney
              as an employee.

¶14.   Franklin claims that Turner was liable because it knew of Swinney’s propensity for

violent behavior and still hired and retained him as an employee. To support her claim,

Franklin submitted deposition testimony by the former caretaker, White, that Turner knew

Swinney had harassed another tenant, Bertha Gibson, and that Swinney had a drinking

problem. “In Mississippi, ‘an employer will be liable for negligent hiring or retention of his

employee when an employee injures a third party if the employer knew or should have known

of the employee’s incompetence or unfitness.’” Parmenter, 99 So. 3d at 217 (¶18) (quoting

Doe v. Pontotoc Cty. Sch. Dist., 957 So. 2d 410, 416-17 (¶16) (Miss. Ct. App. 2007)).

¶15.   We find that Franklin has provided no evidence Turner had any prior knowledge

Swinney had a propensity for the type of violent behavior to which he pled guilty. White

never said he ever saw Swinney inebriated and admitted he had no firsthand knowledge that

Swinney was fired for drinking. Furthermore, had Turner fired Swinney for being “a drunk”

prior to this incident, as claimed by White, this fact does not show that Swinney had the

propensity to sexually assault someone.

¶16.   White did testify that Gibson had cried to him “a couple of times saying [Swinney]

wouldn’t leave her alone.” If White was Turner’s employee/caretaker at the time he talked

to Gibson, knowledge of his behavior would be imputed to Turner. See Glover v. Jackson

State Univ., 968 So. 2d 1267, 1276 n.9 (Miss. 2007) (noting that “[a]n employee’s

                                              8
knowledge is imputed to his employer” (citing 30 C.J.S. Employer-Employee § 211 (1992))).

However, White’s testimony in regard to his employment status at the time Gibson allegedly

made those statements is vague. He initially said Gibson made the statements “[j]ust before

[Swinney] messed with [Franklin],” which would have been when White was employed as

the caretaker. But upon further questioning, White recanted his testimony, stating: “I don’t

remember if I was caretaker then or not. No, I don’t think so. Unh-unh (negative response),

I wasn’t the caretaker then.” Thus, as Franklin has not provided sufficient evidence that

White was caretaker when Gibson made those statements to create a genuine issue of

material fact, we cannot find that White’s knowledge would be imputed to Turner.

¶17.   Morever, White further said that he discounted Gibson’s claims, as she “wasn’t right”

and had exhibited unstable behavior in the past, such as running naked in the parking lot,

throwing her clothes in the dumpster, and setting her apartment on fire.

       Q.     So you really didn’t put a lot of stock in what she said?

       A.     No, I didn’t – I didn’t put a lot of stock into what she was saying.
              That’s why I didn’t say nothing about Mr. Swinney messing with her,
              because I didn’t really know, you know. She just – she just said he
              did.8

Based on all the foregoing, we cannot find a genuine issue of material fact from which

negligent hiring could be attributed to Turner.

¶18.   “[U]nsupported speculation and allegations are not sufficient to defeat a motion for

summary judgment.” Adams, 831 So. 2d at 1161 (¶19). The record reflects that Turner ran



       8
        There was no testimony by Gibson to support these statements; White testified that
she had committed suicide shortly thereafter.

                                             9
a criminal background check on Swinney; it showed no criminal offenses. Accordingly, we

find this issue is without merit, as Franklin has failed to produce any evidence to show

Swinney had a criminal record or any violent tendencies, and nothing indicates any actual or

constructive knowledge by Turner.

       C.     Whether Turner’s retention of Swinney as an employee after his arrest
              and guilty plea ratified his actions and created liability for Turner.9

¶19.   Franklin further argues that the retention of Swinney as an employee after he pleaded

guilty to attempted aggravated assault “ratified” his actions and creates a genuine issue of

material fact that Turner is vicariously liable for Swinney’s actions. For an employer to be

liable for an employee’s actions, “the act must have been one authorized by the employer

prior to its commission, ratified after its commission, or committed within the scope of the

employment.” Horton v. Jones, 208 Miss. 257, 261, 44 So. 2d 397, 400 (1950) (emphasis

added). “Where an employer learns of the past intentional conduct and does nothing to

reprimand the employee, this acts as a ratification.” Jones v. B.L. Dev. Corp., 940 So. 2d

961, 966 (¶17) (Miss. Ct. App. 2006) (citing Royal Oil Co. v. Wells, 500 So. 2d 439, 446

(Miss. 1986); Allen v. Ritter, 235 So. 2d 253, 255-56 (Miss. 1970)). Franklin cites Jones to

support her claim. In Jones, this Court held that a genuine issue of material fact existed that

B.L. Development was liable for the supervising employee’s sexual harassment of a

subordinate employee because the supervisor took “a tangible employment action against an

employee[/victim],” and the harassment “was aided” by the agency relationship. Id. at 967



       9
       For the purposes of summary judgment, this Court will assume Swinney was an
employee at the time of the assault. See Nelson, 969 So. 2d at 52 (¶14).

                                              10
(¶¶20, 22). We find Jones distinguishable from the present case. As stated, the supervisor’s

sexual harassment of the employee, while not considered to be within the scope of

employment, was aided by his position as an agent of the employer. And the “notorious”

conduct by the supervisor, Jimmy Miller, was ongoing and known not only to his own

supervisor, Rhonda Kennedy, but to several others as well. However, no disciplinary action

was taken against Miller until the harassment was reported to Kennedy’s supervisor. Id. at

966 (¶18).

¶20.   In Allen, 235 So. 2d at 255, a malicious-prosecution case, the supreme court held:

“The principals, where they direct, where the act is within the scope of authority of the agent,

or where the principals participate in or ratify the actions of the agents, are liable.” (Citation

omitted). Because there was conflicting evidence whether the employee was acting within

the scope of the employment, and whether the master ratified the act, it held that such

questions “should have been submitted to the jury.” Id. The supreme court made no

determination as to whether the retention of the employee in that case constituted

ratification.10

¶21.   However, as the circuit judge stated in his order granting summary judgment, our

supreme court has held: “While the fact of . . . retention of the offending servant in the



       10
          We find the facts of the other case cited by Jones are not applicable to the present
case. In Royal Oil Co., 500 So. 2d at 441, an employee, Pamela Wells, was accused of
embezzlement by another employee, Curtis Miller, and the manager, April Miller (who were
married to one another). The employee brought suit for malicious prosecution and argued
Royal Oil was liable as the company ratified the Millers’ behavior by failing to “reprimand
or fire [them.]” Id. at 446. The supreme court held the evidence showed that the Millers
acted with authority on behalf of Royal Oil, and it upheld the verdict in favor of Wells.

                                               11
employment of the master may be admitted in evidence as bearing upon the ratification, the

mere retention of the servant in the employment will not constitute such ratification as will

render the master liable for the unauthorized act.” Wells v. Robinson Bros. Motor Co., 153

Miss. 451, 459, 121 So. 141, 142-43 (1929). In Craft v. Magnolia Stores Co., 161 Miss. 756,

764, 138 So. 405, 407 (1931), the supreme court reiterated:

       Having reached the conclusion that the act of [the servant] was unauthorized
       so far as the master was concerned, and that he was at the time acting upon his
       own initiative for purposes of his own and not in the performance of any duty
       expressed or implied which he owed the master, it then follows that the
       retention of [the servant] in its employ with knowledge of his tortious act
       would not render the principal or master liable.

       The mere fact that such employee is retained in the master’s employ, and mere
       silence on the master’s part relative to the [tort], is not sufficient evidence that
       the master adopted the act, nor does it lead to the inference that he assumes
       responsibility for the servant’s slander of another.

¶22.   Accordingly, based on the facts before us, we affirm the circuit court’s holding that

Turner’s retention of Swinney as caretaker would not be considered ratification, rendering

it vicariously liable for his tortious action, and affirm the circuit court’s grant of summary

judgment.

¶23. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.




                                               12
