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Coleman v. Smith11/8/2005
er who appeared to be in charge, told me that the casino wasn't interested in prosecuting me and the others allegedly involved, but wanted their money back, and would continue to prosecute me until I agreed to repay what they thought was taken. That Mr. Smith said he would let me go and not prosecute if I agreed to repay the money . . . . That on several occasions prior to my exoneration, Mr. Christopher Smith offered to drop all charges against me if I agreed to repay the money, stating frequently that they wanted the money paid and was not interested in prosecuting me.
However, in Coleman's October 17, 2003 deposition the following exchange occurred:
Q: Okay. Now, looking back at your complaint on Paragraph 19, it says that, "The Defendants in an effort to force the Plaintiff to pay monies taken by others f r o m t h e Defend a n t abused process b y bringing criminal charges against t h e Plaintiff ."
When did anyone try to force you to pay money -- the money you're talking about here in Paragraph 19?
A: No one have .
Q: No one has?
A: No one have . "Although the court must resolve all factual inferences in favor of the non-movant, the non-movant cannot manufacture a disputed material fact where none exists. Thus, the non-movant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony." Foldes v. Hancock Bank, 554 So. 2d 319, 321 (Miss.1989) (citing Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980)).
"We simply may not rely upon unsupported, conclusory allegations to defeat a motion for summary judgment where there are no issues of material fact." Jacox v. Circus Circus Mississippi, Inc., 908 So. 2d 181, 184 ( ) (MisS.Ct. App. 2005).
. Coleman's affidavit contradicted her previous deposition testimony in which she stated that no one had attempted to force her to pay money back to the casino. Clearly, Coleman's affidavit is a self-serving attempt to create a genuine issue of material fact for her abuse of process claim. The trial court was correct in finding that Coleman failed to bring forth sufficient evidence from which a reasonable jury could conclude that Smith instituted criminal proceedings for the primary purpose of collecting a debt.
This claim is also without merit.
IV. Negligent Infliction of Emotional Distress
. Finding that Smith acted with probable cause and without malice in having Coleman arrested, we also find that Smith's actions were not negligent so as to support a finding of negligent infliction of emotional distress. We find that this claim must also fail.
CONCLUSION
. Each of Coleman's claims were legally insufficient. While Coleman attempted to create issues of fact by submitting statements from herself and other co-workers that deny her participation in the embezzlement scheme, there is no question that at the time Smith had Coleman arrested, he acted with ample probable cause. We find the trial court was, therefore, correct in granting summary judgment in favor of Smith and the corporate defendants.
. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.
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