## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 02-60415

Summary Calendar

_______________



### EOG R ESOURCES



### , I NC



### .,

PlaintiffCounter DefendantAppellee,

VERSUS



### J ESSE 

### D EMPSEY 

### B EACH



### , ET AL



### .,

Defendants,



### P RESTON 

### W AYDE 

### G ILL



### ,

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, 20022

Before H IGGINBOTHAM , S MITH , and

C LEMENT , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

EOG Resources, In c. (“EOG”), sought a

declaratory judgment for the right to conduct

seismic exploration operations on P reston

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 o wners 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 its subsurface interest, defendants denied EOG the right to enter and use

the land. Faced with a time-sensitive exploration project, EOG sued for declaratory, injunctive, and monetary relief. Gill answered p ro se

and filed a counte rclaim for abuse of process

and intentional infliction of emotional distress

(“i.i.e.d.”). At a hearing on August 24, 2000, the di strict 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 prelimina ry injunction

against Gill. 2

EOC d id 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 operat io ns. Gill, who claims that he was worried

about liabilit

y in the event of an accident,

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

told them to leave.

Later that day, Do nnie Sport and Richard

Fitzpatrick, representatives of EOG, came to

Gill’s house . In his amended counterclaim,

Gill alleges that 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

d istrict court granted summary judgment on

EOG’s decl aratory 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 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4.

1 Under Mississippi law, a m ineral 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 C orp. 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 . . . .” F ED

. R. C IV

. 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) (pe r

curiam).3

atory judgment claim. Under Mississippi law,

the owner or lessee of subsurface oil, gas, and

mineral rights has the right to enter, occupy

and use as much of the surface as is reasonably

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 inc l uded certified copies of instruments from

county records an d t he owner’s seismic permits. Gill has never disputed the authenticity

of this evidence. Because EOC is an undisputed le s see 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 declaratory judgment action. He

maintains that had EOC originally complied

with his requests to furnish proof of its subsurface rights, he wo uld have granted access,

making litigation unnecessary. Gill seeks

damages for the costs of maintaining the suit,

includ i ng emotional distress. He also alleges

that EOC’s entry onto his land before issuance

of the preliminary injunction constituted abuse

of process and i.i.e.d.

We review a

summary judgment d e novo.

Pratt v. Cit

y 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 m

atter of law. F E D

. R. C IV

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

3 17, 323 (1986). An issue of material fact is

genuine if a reasonable jury could return a verdict for the nonmovant. A n derson v. Liberty

Lobby, Inc.

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

inferences in favor of the 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-sen sit ive nature of

EOC’s seismic project, Gill contends that EOC

was “more interested in procur ing a Temporary Court Injunction to force [him] into submiss ion t han to take that amount of time required to properly provide proof” of their subsurface rights. Further, Gill points to EOC’s

entry o n his property before issuance of the

preliminary injuncti o n. EOC defends its acti o ns as consistent with the court’s ultimate

decision on the merits.

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

purpose not warranted or comman d ed by the

wri t .” S tate 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); L arco

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 is immaterial for

purposes of the declaratory judgment claim. 5 From the pleadings, it is not entir ely evident

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

(continued...)4

Mississippi, an abuse of process claim is established by showing “(1) that the defendant made

an illegal and im

proper 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 exerci sing

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

plaint iff from the irregularity.” I d. To survive

summary judgment, Gill must show that a genuine issue of fact exi st s as to each element.

Williamson v. Ke i th

, 785 So. 2d 390, 394

(Miss. 2000).

For purposes of an abuse of process claim,

a party makes an ill e gal and improper perverted use of th e judicial process only a fter

suit has been filed. 6 W

oolfolk v. Tucke r , 485

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

make s improper use of the judicial process

where, for example, h e mistakenly fails to

serve the opposing party with a copy of a subpoena for medical records. W illiamson

, 786

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

party files a suit for impermissible reasons, the

proper remedy i s malicious prosecution, not

abuse of process. For example, in F oster , defendants could

n ot make out a claim for abuse of process

where the y instituted criminal proceedings

against the plaint iffs for purely self-serving

reasons. Foster

, 3 19 So. 2d at 236. If EOC

made an impr o per 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 commencem ent of

legal proceedings is EOC’s entry upon his land

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 di spute that it

failed to follow the terms of the injunction.

Ce rt ainly, 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.

Give n t he district court’s inherent power to

determine t h e propriety of security before issuing a preliminary injunction, 8 the court’s failure t o initiate contempt proceedings against

EOC weighs heavily against our finding a fact

issue as to 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 plaintif f 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

with maliciously causing process to issue, while the

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

Condere C orp. , 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 suppo rting Gill’s claim that

Mississippi law requires a subsurfac e 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, 10 94 (5th Cir.

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

at 303.5

conclusion that an abuse of pro c ess claim is

inappropriate here.

B.

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

liabilit y 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, a nd utterly intolerable in a civilized

community.” 9 Liability “clearly does not extend to mere insults, indig nit ies, threats, annoyances, petty oppre ssion, or other trivialities.” W ong

, 700 So. 2d at 306. 10 For example, the immediate firing of an employee under an at-will employment c ontract 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 W hite v. Walker

, 950 F.2d 97 2, 978 (5th Cir. 1991).

Gill alleges that Sport’s insults and threats

of legal action were sufficiently outrageous to

suppor t his i.i.e.d. claim. We disagree.

Sport’s reaction 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” 

### SS he 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. Stri

pling , 700 So. 2d 296, 306

(Miss. 1997) (quoting R E STATEMENT (S ECOND ) OF

T ORTS § 46 cmt. d (1977)).

10 In Wong

, th e 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 an d required to be hardened to a certain amount of rough language, and to

occasional acts that are definitely inconsiderate and

unkind. There is no occasion for the law to intervene in every c a se 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 plai ntiff 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 pr emised its finding

(continued...) 11 (...continued)

of liability on the “rights of the home.” I d. at 755.

Gill asks us to apply this holding S S which is

over fifty years old SS

to the facts of this case. We

decline to do so. S ee 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 tha t case, Gill has not alleged that he

suffered a physical ailment a s a result of Sport’s

visit to his house on August 27, 2000.