EOG Resources Inc v. Beach

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 02-60415
Summary Calendar
_______________
EOG RESOURCES, INC.,
Plaintiff-
Counter Defendant-
Appellee,
VERSUS
JESSE DEMPSEY BEACH, ET AL.,
Defendants,
PRESTON WAYDE GILL,
Defendant-
Counter Claimant-
Appellant.
___________________________
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

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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 spe-
cializing in mineral exploration. Gill and other
defendants are the record title owners of the
surface estate in various tracts of land in Mis-
sissippi. EOG entered into seismic op-
tion/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, de-
fendants denied EOG the right to enter and use
the land. Faced with a time-sensitive explora-
tion project, EOG sued for declaratory, injunc-
tive, 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 dis-
trict court announced that it would issue a pre-
liminary injunction enjoining defendants from
denying EOG access to their lands. In its or-
der dated August 29, 2000, the court required
EOG to obtain a security bond of $6000 be-
fore issuance of the preliminary injunction
against Gill.2
EOC did not obtain a bond until Septem-
ber 6. Before the bond was issued, on August
27, EOC employees entered Gill’s property
with the intent of conducting seismic opera-
tions. Gill, who claims that he was worried
about liability in the event of an accident,
asked the employees for a copy of the injunc-
tion. 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 alleges that Sport “made false accusations
of interference” by Gill and threatened him
with legal action for his unwillingness to per-
mit the employees access to his property. The
district court granted summary judgment on
EOG’s declaratory judgment claim and or-
dered 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 pub-
lished 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 Drill-
ing 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 se-
curity. Corrigan Dispatch Co. v. Casa Guzman,
S.A., 569 F.2d 300, 303 (5th Cir. 1978) (per
curiam).

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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 miner-
als.3 At the August 24 hearing, EOC pre-
sented evidence of its right to conduct seismic
explorations on Gill’s land. This evidence in-
cluded certified copies of instruments from
county records and the owner’s seismic per-
mits. Gill has never disputed the authenticity
of this evidence. Because EOC is an undisput-
ed 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 com-
plains that EOC wrongly named him as a de-
fendant in the declaratory judgment action. He
maintains that had EOC originally complied
with his requests to furnish proof of its subsur-
face 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 his land before issuance
of the 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 ap-
propriate 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 ver-
dict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In re-
viewing 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 de-
fendant. Had EOC simply demonstrated proof
of its subsurface rights, Gill says, he would
have allowed the company access to his prop-
erty, making litigation unnecessary. Referenc-
ing the apparent time-sensitive nature of
EOC’s seismic project, Gill contends that EOC
was “more interested in procuring a Tempo-
rary Court Injunction to force [him] into sub-
mission than to take that amount of time re-
quired to properly provide proof” of their sub-
surface rights. Further, Gill points to EOC’s
entry on his property before issuance of the
preliminary injunction. EOC defends its ac-
tions as consistent with the court’s ultimate
decision on the merits.
Abuse of process is “the misuse or misap-
plication of a legal process to 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 is immaterial for
purposes of the declaratory judgment claim.
5 From the pleadings, it is not entirely evident
whether Gill has alleged a claim for abuse of pro-
cess or malicious prosecution, or both. Certainly,
(continued...)

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Mississippi, an abuse of process claim is estab-
lished by showing “(1) that the defendant made
an illegal and improper perverted use of the
process, a use neither warranted nor autho-
rized by the process; (2) that the defendant had
an ulterior motive or purpose in exercising
such illegal, perverted or improper use of pro-
cess; and (3) that damages resulted to the
plaintiff from the irregularity.” Id. To survive
summary judgment, Gill must show that a gen-
uine 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 per-
verted 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 sub-
poena 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 proceedings is EOC’s entry upon his land
on August 27. Gill alleges that EOC breached
the terms of the preliminary injunction by fail-
ing first to secure a bond for $6000, as re-
quired by the preliminary injunction order dat-
ed 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, how-
ever, to maintain an abuse of process claim.
Given the district court’s inherent power to
determine the propriety of security before is-
suing a preliminary injunction,8 the court’s fail-
ure to 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 prosecu-
tion, 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 mali-
cious prosecution in that the latter is concerned
with maliciously causing process to issue, while the
former is concerned with the improper use of pro-
cess 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.

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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 ex-
treme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atro-
cious, and utterly intolerable in a civilized
community.”9 Liability “clearly does not ex-
tend to mere insults, indignities, threats, an-
noyances, petty oppression, or other triviali-
ties.” Wong, 700 So. 2d at 306.10 For ex-
ample, the immediate firing of an employee un-
der 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 sui-
cide.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’s reaction may have been inappropriate,
but it was not the type of behavior that might
be characterized as utterly intolerable in a civ-
ilized 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 en-
titled 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 hard-
ened 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 inter-
vene 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.

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