IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 02-60415

Summary Calendar

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EOG RESOURCES, INC.,

PlaintiffCounter DefendantAppellee,

VERSUS

JESSE DEMPSEY BEACH, ET AL.,

Defendants,

PRESTON WAYDE GILL,

DefendantCounter ClaimantAppellant.

___________________________

Appeal from the United States District Court

for the Southern District of Mississippi

m 1:00-CV-351-BrR

m 1:00-CV-368-GR

m 1:00-CV-491-BrR

_________________________

November 26, 2002
2

Before HIGGINBOTHAM, SMITH, and 

CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

EOG Resources, Inc. (“EOG”), sought a

declaratory judgment for the right to conduct

seismic exploration operations on Preston

Gill’s land. Gill appeals a summary judgment,

and we affirm. 

I.

EOG is a Houston-based corporation specializing in mineral exploration. Gill and other

defendants are the record title owners of the

surface estate in various tracts of land in Mississippi. EOG entered into seismic option/lease agreements with certain owners of

mineral interests underlying defendants’lands.

Under these agreements, EOG possessed the

right to acquire oil, gas, and mineral leases and

to conduct a geophysical survey.1

Despite EOG’s alleged attempts to furnish

defendants proof of itssubsurface interest, defendants denied EOG the right to enter and use

the land. Faced with a time-sensitive exploration project, EOGsued for declaratory, injunctive, and monetary relief. Gill answered pro se

and filed a counterclaim for abuse of process

and intentional infliction of emotional distress

(“i.i.e.d.”).

At a hearing on August 24, 2000, the district court announced that it would issue a preliminary injunction enjoining defendants from

denying EOG access to their lands. In its order dated August 29, 2000, the court required

EOG to obtain a security bond of $6000 before issuance of the preliminary injunction

against Gill.2

EOC did not obtain a bond until September 6. Before the bond was issued, on August

27, EOC employees entered Gill’s property

with the intent of conducting seismic operations. Gill, who claims that he was worried

about liability in the event of an accident,

asked the employees for a copy of the injunction. When they were unable to comply, Gill

told them to leave.

Later that day, Donnie Sport and Richard

Fitzpatrick, representatives of EOG, came to

Gill’s house. In his amended counterclaim,

Gill allegesthat Sport “made false accusations

of interference” by Gill and threatened him

with legal action for his unwillingness to permit the employees access to his property. The

district court granted summary judgment on

EOG’s declaratory judgment claim and ordered that Gill’s counterclaim be dismissed on

the merits.

II.

Gill argues that the district court erred in

granting summary judgment on EOC’s declar-

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

1 Under Mississippi law, a mineral owner or

lessee has the right to enter, occupy, and use as

much of the surface as is reasonably necessary to

explore, mine, and market minerals. Larco Drilling Corp. v. Lee, 207 So. 2d 634, 635 (Miss.

1968).

2

 “No preliminary injunction shall issue except

upon the giving of security by the applicant, in

such terms as the court deems proper . . . .” FED.

R. CIV. P. 65(c). In this circuit, however, courts

have the discretion to issue injunctions without security. Corrigan Dispatch Co. v. Casa Guzman,

S.A., 569 F.2d 300, 303 (5th Cir. 1978) (per

curiam).
3

atory judgment claim. Under Mississippi law,

the owner or lessee ofsubsurface oil, gas, and

mineral rights has the right to enter, occupy

and use as much of the surface asisreasonably

necessary to explore, mine, and market minerals.3

 At the August 24 hearing, EOC presented evidence of its right to conduct seismic

explorations on Gill’s land. This evidence included certified copies of instruments from

county records and the owner’s seismic permits. Gill has never disputed the authenticity

ofthis evidence. Because EOC is an undisputed lessee of the subsurface rights, the court

properly granted summary judgment.4

III.

The district court dismissed Gill’s claims

for abuse of process and i.i.e.d.. Gill complains that EOC wrongly named him as a defendant in the declaratoryjudgment action. He

maintains that had EOC originally complied

with hisrequeststo furnish proof ofitssubsurface rights, he would have granted access,

making litigation unnecessary. Gill seeks

damages for the costs of maintaining the suit,

including emotional distress. He also alleges

that EOC’s entry onto hisland before issuance

ofthe preliminary injunction constituted abuse

of process and i.i.e.d.

We review a summary judgment de novo.

Pratt v. City of Houston, 247 F.3d 601, 605-

06 (5th Cir. 2001). Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled

to judgment as a matter of law. FED. R. CIV.

P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). An issue of material fact is

genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the evidence, we draw all reasonable

inferencesin favor ofthe nonmoving party and

avoid credibility determinations and weighing

of the evidence. Sanderson Plumbing Prods.

Inc., 530 U.S. 133, 150-51 (2000).

A.

Gill contends that EOC abused the judicial

process by unnecessarily naming him as a defendant. Had EOC simply demonstrated proof

of its subsurface rights, Gill says, he would

have allowed the company access to his property, making litigation unnecessary. Referencing the apparent time-sensitive nature of

EOC’sseismic project, Gillcontendsthat EOC

was “more interested in procuring a Temporary Court Injunction to force [him] into submission than to take that amount of time required to properly provide proof” oftheir subsurface rights. Further, Gill points to EOC’s

entry on his property before issuance of the

preliminary injunction. EOC defends its actions as consistent with the court’s ultimate

decision on the merits.

Abuse of process is “the misuse or misapplication of a legalprocessto accomplish some

purpose not warranted or commanded by the

writ.” State for Use and Benefit of Foster v.

Turner, 319 So. 2d 233, 236 (Miss. 1975).5 In

3 E.g., Charles F. Hayes & Assocs., Inc. v.

Blue, 233 So. 2d 127, 128 (Miss. 1970); Larco

Drilling Corp. v. Lee, 207 So. 2d 634, 635 (Miss.

1968).

4 Gill’s argument that EOC failed to provide

him with evidence of its subsurface rights before

the preliminary injunction hearing isimmaterialfor

purposes of the declaratory judgment claim.

5 From the pleadings, it is not entirely evident

whether Gill has alleged a claim for abuse of process or malicious prosecution, or both. Certainly,

(continued...)
4

Mississippi, an abuse of process claimis established byshowing “(1) that the defendant made

an illegal and improper perverted use of the

process, a use neither warranted nor authorized by the process;(2) that the defendant had

an ulterior motive or purpose in exercising

such illegal, perverted or improper use of process; and (3) that damages resulted to the

plaintifffrom the irregularity.” Id. To survive

summary judgment, Gillmust show that a genuine issue of fact exists as to each element.

Williamson v. Keith, 785 So. 2d 390, 394

(Miss. 2000).

For purposes of an abuse of process claim,

a party makes an illegal and improper perverted use of the judicial process only after

suit has been filed.6 Woolfolk v. Tucker, 485

So. 2d 1039, 1042 (Miss. 1986). A party

makes improper use of the judicial process

where, for example, he mistakenly fails to

serve the opposing party with a copy of a subpoena for medical records. Williamson, 786

So. 2d at 394. On the other hand, where a

party files a suit for impermissible reasons, the

proper remedy is malicious prosecution, not

abuse of process. 

For example, in Foster, defendants could

not make out a claim for abuse of process

where they instituted criminal proceedings

against the plaintiffs for purely self-serving

reasons. Foster, 319 So. 2d at 236. If EOC

made an improper use of the judicial process

by filing an unnecessary lawsuit,7 Gill’s proper

remedy is a claim for malicious prosecution,

not abuse of process. 

The only unlawful action alleged by Gill to

have taken place after the commencement of

legal proceedingsis EOC’s entry upon hisland

on August 27. Gill alleges that EOC breached

the terms of the preliminary injunction by failing first to secure a bond for $6000, as required by the preliminary injunction order dated August 29. EOC does not dispute that it

failed to follow the terms of the injunction.

Certainly, the company’s ultimate success on

the merits does not justify its blatant disregard

of the order. 

This, without more, is insufficient, however, to maintain an abuse of process claim.

Given the district court’s inherent power to

determine the propriety of security before issuing a preliminaryinjunction,8

the court’sfailure to initiate contempt proceedings against

EOC weighs heavily against our finding a fact

issue asto abuse of process. In addition, Gill’s

failure to allege particular damages stemming

from EOC’s violation further supports the

5

(...continued)

he cannot make out a claim for malicious prosecution, which requires that a plaintiff first establish

that the underlying proceedings were terminated in

his favor. Turner, 319 So. 2d at 235.

6 Foster, 319 So. 2d at 236 (“An action for

abuse of process differs from an action for malicious prosecution in that the latter is concerned

withmaliciously causing processto issue, while the

former is concerned with the improper use of process after it has been issued.”); see also Moon v.

Condere Corp., 690 So. 2d 1191, 1197 (Miss.

1997) (noting that “the defendant’s complaint was

not based on any perversion of any process, rather

it was based simply on the filing of the suit”). 

7 Although we do not decide the issue, we have

located no authority supporting Gill’s claim that

Mississippi law requires a subsurface owner or

lessee initially to notify the surface owner before

commencing seismic explorations.

8 City of Atlanta v. Metro. Atlanta Rapid

Transit Auth., 636 F.2d 1084, 1094 (5th Cir.

Unit B Feb. 1981); Corrigan Dispatch, 569 F.2d

at 303.
5

conclusion that an abuse of process claim is

inappropriate here. 

B.

On the i.i.e.d. claim, under Mississippi law,

liability is proper only where “the conduct has

been so outrageous in character and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.”9 Liability “clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.” Wong, 700 So. 2d at 306.10 For example, the immediate firing of an employee under an at-will employment contract does not

constitute i.i.e.d. Fuselier, Ott & McKee v.

Moeller, 507 So. 2d 63, 69 (Miss. 1987). A

police officer who arrested a minor for driving

his parents’ car without a license could not be

liable for i.i.e.d. after the minor committed suicide.11 White v. Walker, 950 F.2d 972, 978

(5th Cir. 1991).

Gill alleges that Sport’s insults and threats

of legal action were sufficiently outrageous to

support his i.i.e.d. claim. We disagree.

Sport’sreaction may have been inappropriate,

but it was not the type of behavior that might

be characterized as utterly intolerable in a civilized community. Gill has not alleged any

damages beyond “mental stress”SShe cites no

verifiable physical ailments resulting from his

encounter with Sport. Along with the fact that

miscommunication appears to have been the

cause of Sport’s belief that his crew was entitled to begin seismic operations on Gill’s

land, we see no basis for the i.i.e.d. claim.

AFFIRMED.

9 Wong v. Stripling, 700 So. 2d 296, 306

(Miss. 1997) (quoting RESTATEMENT(SECOND)OF

TORTS § 46 cmt. d (1977)).

10 In Wong, the court also wrote: “The rough

edges of our society are still in need of a good deal

of filing down, and in the meantime plaintiffs must

necessarily be expected and required to be hardened to a certain amount of rough language, and to

occasional actsthat aredefinitely inconsiderate and

unkind. There is no occasion for the law to intervene in every case where someone’s feelings are

hurt.” Id.

11 In Continental Cas. Co. v. Garrett, 161 So.

753 (Miss. 1935), the court permitted recovery for

a plaintiff whose feeble medical condition worsened

after a representative of the defendant insurance

company came to his home and insulted him with

false accusations. The court premised its finding

(continued...)

11(...continued)

of liability on the “rights of the home.” Id. at 755.

Gill asks us to apply this holdingSSwhich is

over fifty years oldSSto the facts of this case. We

decline to do so. See White, 950 F.2d at 978

(characterizing Garrett as “out of date” and noting

that “[w]e doubt that a contemporary court would

impose liability” based on its holding). Unlike the

plaintiff in that case, Gill has not alleged that he

suffered a physical ailment as a result of Sport’s

visit to his house on August 27, 2000.