                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2001-CA-01494-SCT
                                      CONSOLIDATED WITH
                                      NO. 1999-CA-01629-SCT

SHERMAN BOYLES, JR.
AND FAYE BOYLES

v.

SCHLUMBERGER
TECHNOLOGY CORPORATION


DATE OF JUDGMENT:                                    12/11/1997
TRIAL JUDGE:                                         HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                           JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                            JOHN D. SMALLWOOD
                                                     GLENN LOUIS WHITE
                                                     STUART H. SMITH
ATTORNEYS FOR APPELLEE:                              OTIS R. TIMS
                                                     JOHN S. HILL
                                                     DONNA M. BARNES
NATURE OF THE CASE:                                  CIVIL - OTHER
DISPOSITION:                                         AFFIRMED - 12/12/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE PITTMAN, C.J., WALLER AND GRAVES, JJ.

        WALLER, JUSTICE, FOR THE COURT:

¶1.     On October 8, 1993, Sherman and Faye Boyles sued Lynx Operating Company, Inc., the operator

of an oil well on their property, for damages for contamination of their property with salt water and naturally

occurring radioactive materials. On October 18, 1996, the Boyleses filed an amended complaint which

added Schlumberger Technology Corporation as a defendant. Schlumberger filed a motion for judgment
on the pleadings, contending that the running of the three-year statute of limitations1 barred the Boyleses'

claims against Schlumberger. In response to the motion, the Boyleses raised the discovery rule, alleging

that they did not know that Schlumberger had performed work on the property until 1996. The circuit

court granted Schlumberger's motion for judgment on the pleadings. On appeal,2 the Boyleses argue that

the discovery rule was applicable and the statute of limitations did not bar their claims against

Schlumberger.3 We find that the Boyleses' response to Schlumberger's motion for judgment on the

pleadings was insufficient and that the circuit court did not err in granting the motion.

                                              DISCUSSION

                 I.      WHETHER THE GRANT OF JUDGMENT ON THE
                         PLEADINGS WAS APPROPRIATE.

        A.       SCHLUMBERGER'S MOTION.

¶2.     Schlumberger filed a motion for judgment on the pleadings, claiming that the Boyleses' claims

against it were barred by the three-year statute of limitations. The original complaint was filed on October

8, 1993, and the amended complaint adding Schlumberger as a defendant was filed on October 18, 1996.

        B.       CONVERSION OF THE MOTION FOR JUDGMENT ON THE
                 PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT.

¶3.     Under M.R.C.P. 12(c), a trial court may convert a motion for judgment on the pleadings to a

motion for summary judgment if the court considers matters outside the pleadings in ruling on the motion.



        1
         Miss. Code Ann. § 15-1-49 (2001).
        2
        The Boyleses appeal after the circuit court certified the order of dismissal of Schlumberger
pursuant to M.R.C.P. 54(b).
        3
        The appeal sub judice is actually the second appeal we have considered in this case. The first
appeal was an interlocutory appeal which presented procedural issues which are not relevant to the current
appeal. See Boyles v. Schlumberger Tech. Corp., 792 So. 2d 262 (Miss. 2001).

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Although the circuit court did not characterize the motion as a motion for summary judgment, it is evident

that the circuit court treated the motion as one for summary judgment. As soon as the Boyleses filed their

response, the motion became one for summary judgment because they attached to their response exhibits

which were not in the pleadings.

¶4.       Resolution of the issue of the discovery rule depended on exactly when the Boyleses were made

aware of their claims against Schlumberger. This information was not contained in the pleadings. We will

therefore treat the motion for judgment on the pleadings as one for summary judgment.

          C.     STANDARD OF REVIEW.

¶5.       We employ a de novo standard of review of a trial court's grant or denial of a summary judgment

and examine all the evidentiary matters before it -- admissions in pleadings, answers to interrogatories,

depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against

whomthe motion has been made. If, in this view, there is no genuine issue of material fact, and the movant

is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant.

Otherwise, the motion should be denied. Issues of material fact sufficient to require denial of a motion for

summary judgment obviously are present where one party swears to one version of the matter in issue and

another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists

is on the moving party. That is, the non-movant should be given the benefit of any doubt. Heigle v.

Heigle, 771 So. 2d 341, 345 (Miss. 2000) (citing McCullough v. Cook, 679 So. 2d 627, 630 (Miss.

1996)).

          D.     THE SUBSTANCE OF THE BOYLESES' RESPONSE TO THE
                 MOTION FOR SUMMARY JUDGMENT.




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¶6.     The Boyleses claim that the statute of limitations was tolled by the discovery rule. The discovery

rule provides a tolling of the running of a statute of limitations until a plaintiff "should have reasonably known

of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was

legally negligent." Sarris v. Smith, 782 So. 2d 721, 725 (Miss. 2001). Expressed another way, "The

operative time [for the running of the statute of limitations] is when the [plaintiff] can reasonably be held to

have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury

and the conduct of the [defendant]." Smith v. Sanders, 485 So. 2d 1051, 1052 (Miss. 1986) (quoted

with approval in Sarris, 782 So. 2d at 723).

¶7.     We have specifically applied the discovery rule in a similar case where property was allegedly

damaged by radioactive contaminants in oil field waste. Donald v. Amoco Prod. Co., 735 So. 2d 161,

167 (Miss. 1999).

¶8.     The Boyleses allege that they did not know that Schlumberger had performed any work at the site

until the deposition of Ora C. Collins, Jr., the principal officer of defendant O. C. Collins Associates, Inc.,

was taken on February 29, 1996. Therefore, they contend, the discovery rule is applicable to their claims

against Schlumberger, and the filing of the amended complaint on October 18, 1996, was timely.

        E.       THE FORM OF THE BOYLESES' RESPONSE TO
                 SCHLUMBERGER'S MOTION FOR SUMMARY JUDGMENT.

¶9.     The Boyleses state that their "response pointed out that they had first discovered evidence of

Schlumberger's participation in the contamination of their property at the deposition of O. C. Collins, held

on February 29, 1996, and cited authority that the limitations period had been tolled until then." Attached

to the response are the following exhibits: (1) a copy of the first "title" page of Ora C. Collins' deposition

taken on February 29, 1996; (2) a copy of the complete motion to amend the complaint to add


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Schlumberger as a defendant; (3) a copy of the order granting the motion to amend; and (4) a copy of the

first page of the amended complaint which added Schlumberger as a defendant.

        F.       THE SUFFICIENCY OF THE BOYLESES' RESPONSE TO
                 SCHLUMBERGER'S MOTION FOR SUMMARY JUDGMENT.

¶10.    Schlumberger contends that the Boyleses' response was insufficient under the current law of this

State. Indeed, M.R.C.P. 56(c) provides that summary judgment shall be granted by a court if "the

pleadings, depositions, answers to interrogatories and admissions on file, together with 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). As we have ruled:

                 When a motion for summary judgment is made and supported as provided
                 in Rule 56, an adverse party may not rest upon the mere allegations or
                 denials of his pleadings[;] his response must set forth specific facts
                 showing that there is a genuine issue for trial. If he does not so respond,
                 summary judgment, if appropriate, shall be entered against him. . . . An
                 issue of fact may be present where there is more than one reasonable
                 interpretation of undisputed testimony, where materially different but
                 reasonable inferences may be drawn from uncontradicted evidentiary
                 facts, or when the purported establishment of the facts has been
                 sufficiently incomplete or inadequate that the trial judge cannot say with
                 reasonable confidence that the full facts of the matter have been disclosed.

Miller v. Meeks, 762 So. 2d 302, 304-05 (Miss. 2000) (citing Dennis v. Searle, 457 So. 2d 941,

944 (Miss. 1984)).

¶11.    The Boyleses' response to Schlumberger's motion was simply insufficient. All the Boyleses did was

argue that they did not know of their claims against Schlumberger until the Collins' deposition and attach

the first dated page of the deposition. They wholly failed to support their argument with hard evidence such

as affidavits that they did not know of their claims against Schlumberger until the deposition. Clearly, the

Boyleses "rest[ed] upon the mere allegations or denials of [their] pleadings," and did not "set forth specific



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facts" which would create a genuine issue of material fact and which would preclude the entry of judgment

on the pleadings. A bare statement that "the discovery rule proof was obvious to all" does not defeat a

motion for summary judgment.



                                           CONCLUSION

¶12.    We affirm the Jones County Circuit Court's entry of summary judgment in favor of Schlumberger.

¶13.    AFFIRMED.

       PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, EASLEY, CARLSON AND GRAVES,
JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.




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