author: 2DOWNING, J.

text:
    Gary PATTERSON v. ALEXANDER & HAMILTON, INC.
    No. 2002 CA 1230.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Larry W. Buquoi, Craig Kimball, Prai-rieville, Counsel for Plaintiff/Appellee Gary Patterson.
    Paul Eckert, Metairie, Counsel for Defendant/Appellant Alexander & Hamilton, Inc.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   2DOWNING, J.

This appeal addresses whether Alexander & Hamilton, Inc. (Alexander & Hamilton) wrongfully failed to pay commissions and a bonus that Gary Patterson claims to have earned. The trial court agreed that Alexander & Hamilton owed the commissions and found it to be in bad faith in failing to pay Patterson. The trial court entered judgment awarding Patterson his commissions and bonus, penalty wages, attorney fees, interest and costs. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PRODEDURAL HISTORY

Gary Patterson began working for Alexander & Hamilton on October 27,1997 as a sales associate in their commercial recovery and information service business. His compensation plan included a base salary, commissions on credit sales and bonuses if he met certain sales thresholds. Between May 1, 1999 and May 24, 1999, Patterson placed orders from which Alexander & Hamilton ultimately collected $36,250.00. On May 24, 1999, however, the company owner and president, Mr. Andrew Weir, informed Patterson by memorandum that since he was in default of minimum performance standards, he would be on probation for 90 days. During that time, the memorandum states, he would be ineligible to receive further bonuses, would not qualify for vacation pay, but would receive his base salary.

^Subsequently, Alexander & Hamilton refused to pay Patterson any commissions or bonus for the orders he procured in May 1999 prior to receiving the memorandum, asserting that the sales were not complete until the billings had been collected. Therefore, it contended that Patterson was not entitled to commissions or a bonus even though he had procured orders prior to May 24,1999.

Alexander & Hamilton terminated Patterson’s employment on July 5, 1999. It mailed his final paycheck for his base pay on July 13, 1999. It has yet to pay the commissions and bonus Patterson claims are due.

In November 1999 Patterson filed a petition for damages and past due wages in Ascension Parish Court. Alexander & Hamilton filed an exception of improper venue, which the trial court overruled. Alexander & Hamilton applied for supervisory writs on this issue, which this court denied on November 6, 2001.

After a trial on the merits, the trial court entered judgment in favor of Patterson awarding him his claimed commission wages of $3,957.50 and his bonus of $300.00. And after finding Alexander & Hamilton in bad faith, the trial court further awarded Patterson 90 days penalty wages of $15,097.50 and attorney fees of $6,444.35. It also awarded Patterson interest and costs.

Alexander & Hamilton appealed raising seven assignments of error after generally alleging: 1) that the trial court erred in concluding that the Parish Court of Ascension Parish was a place of proper venue; 2) that the trial court erred in rendering judgment for Patterson in that it ignored evidence of Alexander & Hamilton’s established procedures in calculating and awarding commissions and bonuses; and 3) that the trial court erred in finding Alexander & Hamilton in bad faith for failure to pay Patterson his claimed commissions and bonus and, therefore, erred in awarding penalties Land attorney fees pursuant to its incorrect interpretation and application of La. R.S. 23:631 and La. R.S. 23:632.

Patterson answered the appeal seeking additional attorney fees for time expended in connection with this appeal.

DISCUSSION

VENUE

On June 20, 2001, the trial court denied defendant’s venue exception, and a judgment was signed to this effect on June 21, 2001. Defendant did not appeal the judgment. Rather, it sought supervisory writs on July 10, 2001. The trial court granted a return date for the writ application of September 24, 2001, and on November 6, 2001, this court denied the writ without explanation. Alexander & Hamilton took no further steps to effect a review of this decision, but instead proceeded to trial.

The overruling of a declinatory exception of improper venue is generally considered an appealable judgment because, although it is interlocutory (i.e., it does not determine the merits but only preliminary matters in the course of the action. See La. C.C.P. art. 1841), it may cause irreparable harm. See La. C.C.P. art.2083; see also A & P Boat Rentals, Inc. v. American Lloyd’s, 592 So.2d 1361, 1364 (La.App. 1 Cir.1991). In Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, 878 (La.1981), the court noted that irreparable injury occurs if any ruling cannot, as a practical matter, be corrected on appeal. An example of this irreparable harm is when the trial court overrules an exception to venue and the case is tried on the merits in the wrong venue. See also Chambers v. LeBlanc, 598 So.2d 337 (La.1992). A judgment denying an |Robjection of improper venue therefore causes irreparable injury since the appellate court has no practical means of correcting the error on appeal after a trial on the merits. Id. See also Greater Lafourche Port Commission v. Louisiana State Civil Service Commission, 481 So.2d 745 (La.App. 1 Cir.1985).

Appellate courts have no practical means of correcting an improper venue ruling on appeal after a judgment pursuant to trial. See Herlitz, 396 So.2d at 878 (La.1981). Accordingly, when a party does not exercise its right to appeal from an adverse judgment on improper venue, the party waives reasserting the venue issue. Bamburg Steel Buildings, Inc. v. Lawrence General Corp., 36,005, p. 4 (La.App. 2 Cir. 5/8/02), 817 So.2d 427, 431.

Here, Alexander & Hamilton sought no further review from this court or the Louisiana Supreme Court after this court denied its writ application. Alexander & Hamilton does not assert, and there is no evidence to support, any allegation that it did not receive a fair trial in the Parish Court of Ascension Parish. Accordingly, Alexander & Hamilton cannot here reassert its arguments regarding improper venue. We, therefore, decline to reconsider the merits of this assignment of error.

COMMISSIONS AND BONUS

Alexander & Hamilton argues that Patterson was not entitled to an award representing commissions and a bonus for sales between May 1, 1999, and May 24, 1999, because they were not earned until Patterson’s orders were billed. Accordingly, it argues that pursuant to the memorandum of May 24, 1999, after which date these orders were billed, Patterson was not entitled to receive any commissions or bonuses. It points out that under the express terms of its compensation plan, all commissions and bonuses are |fiat its will and may be abolished at its sole discretion. In so arguing, Alexander & Hamilton contends that its established policy, and the policy of the entire collections industry, is that commissions and bonuses are based on actual billing and not upon placement of orders. It provided only the testimony of its own management employees to support this contention. Alexander & Hamilton’s arguments suggest that the concept of “employment at will” also means “compensation at will.” It does not.

Under La. C.C. art. 2456, a sale is complete “between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid,” and Alexander & Hamilton has the burden to show the sales obligation has been modified. See La. C.C. art. 1831.

The parties appear to dispute the meaning of the term “sales,” and the only definition appears in Patterson’s compensation plan: “[C]lient service sales are defined as all house accounts or clients initially developed by a current or former employee of Alexander & Hamilton or referred to Alexander & Hamilton by a current of former client of Alexander & Hamilton;” “primary sales are defined as any sales to individuals or legal entities not falling within the definition of client service sales.” Even so, Alexander & Hamilton points to no document or other evidence, and we can find none, authorizing it to withhold commissions and bonuses once Patterson had procured a purchase and such sale had been billed. As the trial court correctly observed, “Nowhere in Exhibit # 1 does it say commissions are earned at the time of billing.” Even if there were such a provision, persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity. La. C.C. art. 7. Accordingly, any such provision would [7need to be scrutinized for compliance with La. R.S. 23:631, which is designed to protect the public interest. See Becht v. Morgan Building & Spas, Inc., 01-1091, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 56, 58.

“When commission sales are at issue, the inquiry of whether a wage was actually earned focuses on what work associated with the sale remained at the time of [termination].” Becht, 01-1091 at p. 5, 822 So.2d at 59. Where only collection of the fee is outstanding and collection is beyond the control of the employee, the employee has earned his commission pursuant to La. R.S. 23:634. See Howser v. Carruth Mortgage Corp., 476 So.2d 830, 834-835 (La.App. 5 Cir.1985). However, if a substantial amount of time and effort are needed to complete a sale, then the right to a commission may not have been earned. Howser, 476 So.2d at 836. From the evidence in the record, it appears that collection of the contract amounts was the only outstanding work remaining to complete the sales on orders made between May 1, 1999, and May 24, 1999. We note that Patterson seeks commissions and a bonus only for amounts actually billed and paid.

| sAccordingly, the trial court did not err in concluding that Patterson had earned his claimed commissions and bonus. Alexander & Hamilton’s assignments of error in this regard are without merit.

PENALTIES AND ATTORNEY FEES

In awarding wage penalties and attorney fees, the trial court found two violations of La. R.S. 23:631 A. It found that Alexander & Hamilton failed to mail Patterson’s final check within three days of termination as required by the statute. And it found that Alexander & Hamilton was in bad faith when it disputed Patterson’s entitlement to his commissions and bonus.

Regarding the mailing of his paycheck upon termination, the trial court found that Patterson was terminated on July 5, 1999, that the check should have been mailed by July 8, 1999 pursuant to his request, and that the check, per its postmark, was not mailed until July 13, 1999. These findings are supported in the record and are not manifestly erroneous.

1 aRegarding the payment of Patterson’s commissions and bonus, the trial court found Alexander & Hamilton’s actions to “clearly indicate bad faith” in failing to pay these. The trial court found that Alexander & Hamilton contrived an excuse to fire Patterson, toward whom Alexander & Hamilton’s president, Andrew Weir, exhibited “a great deal of animosity.” The trial court found Alexander & Hamilton’s interpretation of the compensation plan to be untenable. It observed that under Alexander & Hamilton’s theory, any employer could fire any employee at will just to avoid paying commissions and bonuses by claiming they were not earned until billed. The trial court further observed that nothing in the documentation provided that commissions were only earned at the time of billing.

Alexander & Hamilton claim that no penalties or attorney fees are due because there was a good faith dispute between it and Patterson over the interpretation of when Patterson was entitled to commissions and bonuses. See La. R.S. 28:631 B. The trial court could not impose sanctions and attorney fees under La. R.S. 23:682 if Alexander & Hamilton had not paid the commissions and bonus based on a good faith dispute. Here, however, the trial court found as a fact that Alexander & Hamilton acted in bad faith in refusing to pay Patterson’s commissions and bonus. This finding is supported by the evidence and was not manifestly erroneous.

|inWe observe that La. R.S. 23:632 requires a penalty of the lesser of 90 days wages or full wages between demand and tender for Alexander & Hamilton’s failure to comply with La. R.S. 23:631. Here, the record reflects that Patterson made demand no later than August 12, 1999, and the commissions and bonus remain unpaid. The trial court, therefore, did not err in assessing a penalty of 90 days wages against Alexander & Hamilton.

Louisiana Revised Statutes 23:632 also provides for the award of attorney fees in a “well-founded suit for any unpaid wages whatsoever.” Here, counsel for Patterson documented and demonstrated almost 90 hours work in connection with the preparation and trial of this matter. Counsel also introduced as evidence its contingency fee contract with Patterson in which they were to be paid one-third of any recovery. Thus, the trial court’s award of attorney fees, almost equaling one-third of the award, was not an abuse of discretion.

Accordingly, Alexander & Hamilton’s assignment of error asserting that the trial court was manifestly erroneous in finding it to be in bad faith is without merit. In addition, Alexander & Hamilton’s assignment of error asserting that the trial court misapplied La. R.S. 23:631 and La. R.S. 23:632 is also without merit.

ANSWER TO APPEAL

ATTORNEY FEES ON APPEAL

Patterson requests that this court grant additional attorney fees for the expense of litigating this appeal. In wage disputes involving La. R.S. 23:631, “additional attorney’s fees are usually awarded when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel.” Becht, 01-1091 at p. 5, 822 So.2d at 59. Here, the extra work on appeal necessitated by Patterson’s counsel is |n evidenced by their skillful preparation of their briefs and their oral argument. Thus, we award $2,500.00 to Patterson as additional attorney fees.

DECREE

The judgment of the trial court is affirmed. We award $2,500.00 in favor of Gary Patterson and against Alexander & Hamilton as additional attorney fees for the prosecution of this appeal. Costs are taxed to Alexander & Hamilton.

AFFIRMED.

KUHN, J., concurs.

      . Under the plan Patterson would receive a base salary of $2,000.00 per month and 15% commission on the pertinent sales, subject to a $10,000.00 threshold. The plan also gave Patterson a $300.00 bonus for the first month he achieved $20,000.00 in billings, which bonus could rise to $1,000.00 per month if he achieved sales exceeding this amount in successive months. The plan also provided that all bonuses and commissions were at the will and sole discretion of the employer and could be abolished or modified without written notice.

      . Patterson has filed a motion to this court to strike’s argument regarding venue. Because we address this issue, we deny the motion to strike.

      . See infra note 4.

      . La. R.S. 23:634. Contract forfeiting wages on discharge unlawful
      A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time' of their discharge or resignation.
      B. Nothing in Subsection A of this Section or in R.S. 23:631(A) shall prohibit an employer from requiring an applicant for employment who becomes an employee or an employee, provided the employee is compensated at a rate equivalent to not less than one dollar above the existing federal minimum wage and is not a part-time or seasonal employee as defined in R.S. 23:1021, to sign a contract providing that the costs of such individual's preemployment medical examination or drug test may be withheld from his wages if he resigns within ninety working days from his first day of work, and, upon resignation, withholding such costs, unless such resignation is attributable to a substantial change made to the employment by the employer as applied in the Louisiana Employment Security Law.

      . La. R.S. 23:631 was amended by Acts 2001, No. 1171. At all pertinent times the statute provided in pertinent part as follows:
      § 631. Discharge or resignation of employees; payment after termination of employment
      A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge.
      (2)Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer's current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.

      . La. R.S. 23:632. Liability of employer for failure to pay; attorney fees
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.


source: Caselaw Access Project

author: WALLER, J.,

license: Public Domain

text:
    Robert NEIDER and Stan Bush v. Tom FRANKLIN d/b/a Pure Gold.
    No. 2001-CA-01757-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003.
    Rehearing Denied May 15, 2003.

      Frank P. Wittmann, III, Frank Philip Wittmann, IV, Gulfport, attorneys for appellants.
    William Michael Kulick, Biloxi, attorney for appellee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   WALLER, J.,

for the Court.

¶ 1. Robert Neider and Stan Wayne Bush appeal from a judgment entered on a unanimous jury verdict in favor of Tom Franklin on Franklin’s claims of tortious interference with contractual relations against Neider and breach of contract against Bush. We affirm the jury’s award of $50,000 to Franklin and reverse and render the award of $100,000 in punitive damages.

FACTS AND PROCEDURAL HISTORY

¶ 2. Tom Franklin owns and operates Pure Gold, a song and dance nightclub act featuring hits from the 1950s, 1960s, and 1970s. Pure Gold performed predominantly at casinos on the Mississippi Gulf Coast. On November 5, 1998, Pure Gold lead singer Stan Wayne Bush entered into a “personal service agreement” purportedly obligating him to perform for Pure Gold for 1999 and 2000. The contract provided in pertinent part, “I also understand that If [sic] I leave the show for any reason what so ever [sic] I can not [sic] play or sing in a group within a 100 miles [sic] of Gulfport[,] Mississippi. For six months, [sic]”

¶3. The relationship between Franklin and Bush soured to the point where Bush quit Pure Gold on October 25, 1999, with fourteen months remaining on his contract. During the time leading to Bush’s exodus from Pure Gold, Bush and his wife had become close friends with Robert Neider, an airline pilot, and his wife Margaret. The Neiders were Louisiana residents and regulars at the Pure Gold show which at the time was performing mostly at Casino Magic. According to Neider, his involvement with Bush began when Margaret befriended Bush’s wife Jessica and agreed to finance a CD for Stan via a loan of several thousand dollars.

¶ 4. Bush informed Franklin that he had a better deal in the works and requested a release from his contract. According to Franklin, he wanted to see the contract in which Bush would enter so that he could look out for Bush’s best interests. Neider’s Louisiana attorney prepared an employment contract dated January 1, 2000, between Bush and Stan Wayne Productions, Inc., an entity in which Robert Neider was president. Neider’s Louisiana attorney thereafter wrote Franklin requesting that Bush be released from his contract. Franklin responded with a buyout offer whereby Neider could purchase the remainder of Bush’s contract for $20,000. This offer was never accepted, but Bush nonetheless left Pure Gold.

¶ 5. On the same day Bush quit Pure Gold, Franklin sent a letter to Neider to cease interfering with Pure Gold performer contracts. However, after Bush left Pure Gold, Neider and his wife essentially bankrolled Bush. Franklin characterizes Neider’s support as evidence of interference, but Neider and Bush characterize the support as a loan. From November 2, 1999, to March 2000, the Neiders wrote approximately 80 checks totaling nearly $60,000 with 26 checks being made out to either Stan Bush or Jessica Bush. Three of the checks written to Stan Bush indicated on the “for” line of each check that they were paychecks. Checks indicating for what they were written include CD’s, show tracks, costumes, amplifier repair, hair weave, lighting equipment, studio rent, etc. Of the total number of checks, nearly 40 were written during the six-month restriction period of the contract. The Neiders also allowed Bush to use one of their cars.

¶ 6. On November 10, 1999, Franklin filed this civil action for damages in the Harrison County Circuit Court against Bush for breach of contract and Neider for tortious interference with contractual relations. A jury returned a unanimous verdict in favor of Franklin and awarded him $50,000 in compensatory damages and $100,000 in punitive damages. Judgment was entered in accordance with the verdict. After a hearing on the defendants’ motion for JNOV, new trial, or remittitur, the trial judge amended the judgment to reflect that both Bush and Neider were jointly and severally liable for the compensatory damages but only Neider was liable for the punitive damages. Aggrieved, Bush and Neider appeal and assert five assignments of error.

DISCUSSION

I. WHETHER THE TRIAL JUDGE ERRED IN FINDING THAT A VALID EMPLOYMENT CONTRACT EXISTED BETWEEN BUSH AND FRANKLIN.

¶ 7. Bush argues that his contract to perform for Pure Gold was unconscionable and ambiguous. At trial, Bush never objected to the contract’s admissibility or ever complained that it was unconscionable or ambiguous. We have consistently held that a trial court will not be put in error on appeal for matters not presented to it for decision. Farmer v. B & G Food Enters., Inc., 818 So.2d 1154, 1160 (Miss.2002); Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 153 (Miss.2001); Brown v. Miss. Transp. Comm’n, 749 So.2d 948, 952 (Miss.1999); Lemon v. Miss. Transp. Comm’n, 735 So.2d 1013, 1024 (Miss.1999); Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985). As such, this issue was waived and is procedurally barred.

II. WHETHER THE TRIAL JUDGE IMPROPERLY ALLOWED THE INTERPRETATION OF THE PERSONAL SERVICES CONTRACT TO GO TO THE JURY.

¶ 8. Bush next argues that interpretation of the contract was a question of law that should not have gone to the jury. The trial judge specifically stated, in overruling the defendants’ motion for directed verdict, that interpretation of the contract presented a jury question.

¶ 9. We find Bush’s argument unpersuasive. The question of law/question of fact dichotomy requires a two-step inquiry in contract law. First of all, it is a question of law for the court to determine whether a contract is ambiguous and, if not, enforce the contract as written. Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1087 (Miss.2000); Universal Underwriters Ins. Co. v. Ford, 734 So.2d 173, 176 (Miss.1999); IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 726 So.2d 96, 106 (Miss.1998). In the event of an ambiguity, the subsequent interpretation presents a question of fact for the jury which we review under a substantial evidence/manifest error standard. Clark v. State Farm Mut. Auto. Ins. Co., 725 So.2d 779, 781 (Miss.1998); Lamb Constr. Co. v. Town of Renova, 573 So.2d 1378, 1383 (Miss.1990) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985)).

¶ 10. The trial judge properly found the contract presented an issue for the jury. In ruling on the motion for directed verdict, the trial judge stated his explanation for submitting the interpretation of the contract to the jury:

It appears to the Court, however, that the noncompetition agreement [the six-month restriction] is simply an additional concession that the performer makes, and it does not relieve the performer of his other duties and obligations under the contract. That’s what it appears to the Court. But I think this is probably a jury question as to that. And if it— and if the jury determines that it is simply an additional concession, therefore his leaving the troop before the expiration of a two-year period would constitute a breach of contract, regardless of whether he abides by the non-competition agreement or not.

The trial judge was correct in his conclusion that there was a jury issue, since the six-month restriction quoted above lent itself to differing interpretations. Bush likewise faded to object to submitted jury instructions outlining the jury’s role in interpreting the contract. This assignment of error is without merit.

III. WHETHER FRANKLIN’S PROOF OF NEIDER’S TOR-TIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS WAS SUFFICIENT.

¶ 11. Neider’s argument on this issue is essentially a sufficiency of the evidence argument. In particular, Neider argues that Franklin failed to establish every element of tortious interference with contractual relations. The trial judge instructed the jury on tortious interference with contractual relations and not only did Neider fail to object to the submitted instruction, he also submitted one himself on the tort.

¶ 12. To establish a claim of tor-tious interference with contractual relations, a plaintiff must prove:

(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice);- and (4) that actual damage and loss resulted.

Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss.1998) (quoting Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992)). Regarding intent, a showing of specific intent is not required. Rather, intent can be inferred when a defendant knows a contract exists between two parties and does a wrongful act that he is certain or reasonably certain will interfere with the contract. Cranford v. Shelton, 378 So .2d 652, 655 (Miss.1980). See also Liston v. Home Ins. Co., 659 F.Supp. 276, 281 (S.D.Miss.1986).

¶ 13. In the instant case, Neider knew that Bush was under contract with Franklin. After negotiations for the buy-out of Bush’s contract failed, Neider had his attorney prepare an employment contract between Stan Wayne Productions, Inc., which listed Neider as president, and Bush as employee. While Neider and Bush contended that this employment contract was an attempt to “fool” Franklin, it is certainly illuminating of Neider’s recognition of Bush’s contract with Franklin. Also, the number of checks written by Neider and his wife and the amounts thereof shed fight on the extent of Neider’s involvement with Bush. This evidence was sufficient to present the claim to the jury.

IV. WHETHER THE COMPENSATORY AND PUNITIVE DAMAGES AWARDS WERE AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 14. Franklin presented evidence of expenses incurred in finding a replacement for Bush. According to Franklin, Bush was the biggest star and talent in Pure Gold, and his departure required extensive travel to places like Las Vegas and Iceland to interview and audition replacements. However, Neider presented testimony from Casino Magic’s entertainment manager who was responsible for booking entertainment acts that Bush was not a factor whatsoever in the casino’s booking of Pure Gold. Franklin also claimed as damages: $93,862 for substitute performers; $50,000 in booking decreases; and $112,084 in various travel, lodging and other out-of-pocket expenses.

¶ 15. Although Franklin requested $200,000 in compensatory damages, the jury only awarded $50,000. Such an award is not contrary to the overwhelming weight of the evidence, and we will not disturb it. We have held that on review of whether a jury’s verdict was against the overwhelming weight of evidence, we will defer to the jury’s determinations of credibility and weight when the evidence is conflicting. Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996); Wallace v. Thornton, 672 So.2d 724, 727 (Miss.1996); Sessums v. Northtown Limousines, Inc., 664 So.2d 164, 168 (Miss.1995); Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992).

¶ 16. On the issue of punitive damages, Neider argues that the evidence presented did not warrant a punitive damages instruction. Franklin of course counters that Neider’s actions were clearly blatant and egregious.

¶ 17. To qualify for punitive damages, the following is the oft-cited general rule:

In order for punitive damages to be awarded, the plaintiff must demonstrate a willful or malicious wrong or the gross, reckless disregard for the rights of others. Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme. The jury should be allowed to consider the issue of punitive damages if the trial judge determined under the totality of the circumstances and in fight of defendant’s aggregate conduct, that a reasonable, hypothetical juror could have identified either malice or gross disregard to the rights of others.

Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 442 (Miss.1999) (citations omitted). See Miss.Code Ann. § 11-1-65 (2002). Regarding intent, we have held that the “kinds of wrongs to which punitive damages are applicable are those which, besides the violation of a right or the actual damages sustained, import insult, fraud, or oppression and not merely injuries but injuries inflicted in the spirit of wanton disregard for the rights of others.” Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1215 (Miss.2000) (citing Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 150-51, 141 So.2d 226, 233 (1962)).

¶ 18. After a thorough review of the record, we find no evidence sufficient to establish such a level of intent. Neider’s activity throughout his involvement with Bush and Franklin reveals no sinister motive on his part to damage Franklin. On the contrary, the evidence, while supporting Franklin’s claim for interference, indicates that Neider only wanted to help Bush, not damage Franklin. If in helping Bush Neider somehow damaged Franklin, it does not warrant the imposition of $100,000 in punitive damages.

V. WHETHER THE COURT ERRED IN GRANTING A PUNITIVE DAMAGES INSTRUCTION TO THE PLAINTIFF.

¶ 19. An award of punitive damages is appropriate only in the most egregious cases to discourage similar conduct and awarded only in cases where the defendant’s actions are extreme. Malone v. Capital Corr. Res., Inc., 808 So.2d 963, 969 (Miss.2002) (citing Willard, 754 So.2d at 442). However, as stated above, there being insufficient evidence of Neider’s intent to damage Franklin, we hold that the trial judge erred in giving a punitive damages instruction.

CONCLUSION

¶ 20. We hold that Bush’s unconsciona-bility argument is procedurally barred and his contract interpretation argument is without merit. We also hold that there was sufficient evidence to support a claim of Neider’s interference and the jury’s award of compensatory damages. However, we find insufficient evidence to support the award of punitive damages. We therefore affirm the jury’s award of $50,000 in compensatory damages and reverse and render the award of $100,000 in punitive damages.

¶ 21. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

      . Among Bush’s impersonations were Elvis Presley and Tom Jones.

      . The contract also provided for various fines and penalties to be imposed for appearing late for performances and rehearsals and for showing up “drunk, high, or in any other way incapacitated....”

      . Bush’s notification of resignation consisted of a letter with an extremely distasteful cartoon attached to the bottom.

      .Franklin also obtained a temporaiy restraining order in Harrison County Chancery Court enjoining Bush and Neider from competing with Pure Gold. At a later contempt hearing, the chancellor found that Bush and Neider were not competing with Pure Gold within 100 miles of Gulfport.

      . The parties even stipulated to the admissibility of the contract.


author: SMITH, P.J.,

text:
    John Henry SEELING, IV v. STATE of Mississippi.
    No. 2001-KA-01172-SCT.
    Supreme Court of Mississippi.
    March 20, 2003.
    Rehearing Denied May 15, 2008.

      Thomas D. Berry, Jr., Bay St. Louis, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SMITH, P.J., WALLER and COBB, JJ.
   SMITH, P.J.,

for the Court.

¶ 1. This is an appeal from the Hancock County Circuit Court where John Henry Seeling, IV (“Seeling”) was tried by a jury and convicted of the murder of Draven Lynn Archer (“Draven”) while in the commission of felonious abuse and/or battery of a child. The circuit court sentenced Seeling to life imprisonment in the custody of the Mississippi Department of Corrections and denied his motion for a new trial and judgment notwithstanding the verdict. Aggrieved, Seeling appeals to this Court.

¶2. We find no merit to the issues raised by Seeling, and we affirm the trial court.

FACTS

¶ 3. Sharee Archer (“Sharee”) dated Seeling for approximately three to four months before the death of her five-month-old daughter, Draven. On May 29, 1999, the day of this incident, Sharee, Draven, Desiree (Sharee’s other child), Seeling and his mother went to the Beau Rivage Casino for an outing. Later in the day, Sharee left the trailer to. take Desiree to her father’s home. This left Draven alone with Seeling in the trailer. Seeling alleges that Draven began to choke so he hit her on the back like he had done on a previous occasion to dislodge a pea. He then called 911.

¶ 4. Draven had a history of heart problems, sleep apnea and reflux. Due to Draven’s medical conditions, a doctor at Tulane University Medical Center had discussed with Sharee the proper way to feed Draven. However, Sharee said that the doctor never taught the correct method.

¶ 5. Dr. David Fontaine was the pediatrician in the emergency room at Hancock Medical Center when Draven was brought in. He found evidence of child abuse due to the presence of injuries to the upper back and neck and various hemorrhages. He further stated that all of this suggested that the child had been beaten to death. Dr. Paul McGarry, the pathologist, who performed the autopsy, concluded that Draven died of blunt injuries of the head and trunk.

¶ 6. The day after Draven’s death, two Harrison County deputies took Seeling into custody and read him his Miranda rights before they put him in the police car. Seeling claims that they rabbit punched him and forced him to confess to the killing.

¶ 7. Seeling raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING SEELING’S CONFESSION INTO EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PATHOLOGIST TO TESTIFY.
III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN THE COURT REPORTER REACTED TO THE “911” TAPE.
IV. WHETHER THE TRIAL COURT ERRED BY ALLOWING EVIDENCE THAT THE CHILD’S NOSE WAS FRACTURED.
V. WHETHER THE TRIAL COURT ERRED IN DENYING A MISTRIAL ON THE GROUNDS THAT JURORS WERE DELIBERATING PRIOR TO THE CLOSE OF THE CASE.

STANDARD OF REVIEW

¶ 8. The standard of review for denial of a directed verdict and a judgment notwithstanding the verdict are identical. Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). Under that standard, this Court considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a guilty verdict, this Court is required to reverse and render. On the other hand, if there is substantial evidence in support of the verdict of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court is required to affirm. American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1391 (Miss.1995).

¶ 9. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. A new trial is the proper remedy in those instances where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Baker v. State, 802 So.2d 77, 81 (Miss.2001).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING SEEL-ING’S CONFESSION INTO EVIDENCE.

¶ 10. The day after Draven’s death Seeling was taken in for questioning. He was mirandized when he was handcuffed and put in the back of the patrol car. Seeling said that he understood his Miranda rights, but that his statement was not voluntary because the police beat him. He claims that his statement was written out by Officer Hurt and he read it. Seel-ing further stated that he just said things in his taped statement that Officer Hurt told him to say. He never invoked his right to an attorney even though he had heard his Miranda rights several times.

¶ 11. An arrest occurs when a person “is in custody and not free to leave.” Thomas v. State, 645 So.2d 1345, 1347 (Miss.1994). Logically, one would conclude that surely Seeling knew that he was under arrest when he was placed in handcuffs. Seeling tries to draw an analogy between the case sub judice and Campbell v. State, 798 So.2d 524, 526-27 (Miss.2001). However, that analogy is misplaced because Seeling was mirandized when he was handcuffed and placed in the police car. In Campbell the police waited to give the Miranda warnings until after the defendant was in custody and they had obtained further evidence. Id. Seeling said that he understood his rights. Further, he signed a voluntary statement form.

¶ 12. The United States Supreme Court has pronounced the law regarding the admissibility of a defendant’s waiver of his privilege against self-incrimination under the Fifth Amendment. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda requires proof that the waiver was voluntarily, knowingly, and intelligently made. The trial judge makes that determination. Findings by a trial court that a confession was voluntary and that the confession is admissible will not be reversed by this Court as long as the trial court applies the correct principles of law and the finding is factually supported by the evidence. Davis v. State, 551 So.2d 165, 169 (Miss.1989); Dedeaux v. State, 519 So.2d 886, 889-90 (Miss.1988).

¶ 13. When the voluntariness of a confession is put into question, the defendant has a due process right to a rehable determination that the confession was in fact voluntarily given. Stokes v. State, 548 So.2d 118, 121 (Miss.1989). The State bears the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt. Davis, 551 So.2d at 169; Jones v. State, 461 So.2d 686, 697 (Miss.1984); Neal v. State, 451 So.2d 743, 753 (Miss.1984). This burden is met and a prima facie case made out by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. The defendant must offer testimony that violence, threats of violence, or offers of reward induced the confession to rebut the State’s prima facie case. If the defendant does this, then the State must offer all the officers who were present when the defendant was questioned and when the confession was signed, or show why they are not present. Tolbert v. State, 511 So.2d 1368, 1376 (Miss.1987), citing Agee v. State, 185 So.2d 671, 673 (Miss.1966).

¶ 14. This procedure properly occurs before trial in a suppression hearing conducted out of the presence of the jury. M.R.E. 104. In the case sub judice a pretrial motion to suppress was filed and a hearing was held. The State offered the testimony of officers Hoda and Hurt who were present when Seeling was questioned and when the confession was signed. Officer Bill Moran testified that he was present when Seeling was picked up and placed in the patrol car when his rights were read. However, he rode in a separate car to the sheriffs office. Seeling asserts that all of the officers involved did not testify. However, he does not state who was not present to testify.

¶ 15. The State clearly produced the two officers who were present when Seeling was questioned and the confession was signed as caselaw says is mandatory unless there is a valid reason for them not to attend. Simply put, the judge did not find Seeling’s claim credible that he was forced to give this statement. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PATHOLOGIST TO TESTIFY.

¶ 16. The pathologist testified that this was a slam type of injury and the cause of death was due to blunt injuries to the head and neck. While Seeling objected to the slam injury language, there was no objection to the blunt injuries cause of death answer by the pathologist.

¶ 17. Seeling objected based on “lack of foundation,” rather than the appropriate discovery violation objection. Counsel must make specific objections in order to preserve a question for appellate review. This Court has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived. E.g., Parker v. State, 367 So.2d 456, 457 (Miss.1979); Lay v. State, 310 So.2d 908, 912 (Miss.1975); Norman v. State, 302 So.2d 254, 259 (Miss.1974); Stringer v. State, 279 So.2d 156, 159 (Miss.1973).

¶ 18. As considered in Oates v. State, 421 So.2d 1025, 1030 (Miss.1982), there are three basic considerations which underlie the rule requiring specific objections. It avoids costly new trials. Boring v. State, 253 So.2d 251, 253 (Miss.1971). It allows the offering party an opportunity to obviate the objection. Heard v. State, 59 Miss. 545 (1882). Lastly, a trial court is not put in error unless it had an opportunity to pass on the question. Boutwell v. State, 165 Miss. 16, 143 So. 479, 482 (1932). These rules apply with equal force in the instant case; accordingly, Seeling did not properly preserve the question for appellate review.

¶ 19. However, “[f]undamental rights in serious criminal cases rise above mere rules of procedure.” Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950), quoted in House v. State, 445 So.2d 815, 820 (Miss.1984). Seeling must rely on plain error to raise this argument on appeal if his objection was not made properly. Watts v. State, 733 So.2d 214, 233 (Miss.1999). While this exact language of “slamming” is not found in the pathologist’s written report, he was qualified to testify through questioning in front of the jury. He not only mentioned slamming but also blunt injuries. Any error was harmless. The jury could determine the credibility of this witness. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN THE COURT REPORTER REACTED TO THE “911” TAPE.

¶20. Seeling’s attorneys moved for a mistrial because the court reporter allegedly was emotional when the “911” tape was played for the jury. Sandi Necaise, a spectator, brought this to the attention of the defense counsel. She testified that it appeared that the court reporter was about to start crying. The court reporter testified that she did put her head in her hand on the desk during the playing of the tape because she had a headache. She had previously heard the tape at the hearing on the motion to suppress. There was no other testimony in the trial court asserted as a basis for a mistrial. No substantial or irreparable prejudice was shown by the court reporter’s actions. In fact, the court reporter gave a reasonable, plausible explanation to the trial court regarding her actions.

¶ 21. The trial judge, who is in the best position to determine if a remark or an action is truly prejudicial, is given considerable discretion to determine whether a remark or an action creates irreparable prejudice necessitating a mistrial. Reynolds v. State, 585 So.2d 753, 755 (Miss.1991). Where the remark creates no irreparable prejudice, then the trial court should admonish the jury to disregard the improper remark. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). While in the present case it was not a remark but an alleged act by the court reporter, the trial judge heard the motion for mistrial and all of the testimony regarding the alleged incident. It was in his discretion to determine if the act was prejudicial. The trial court obviously accepted the plausible explanation given by the court reporter for momentarily putting her head in her hand due to a headache. This assignment of error is without merit.

IV. WHETHER THE TRIAL COURT ERRED BY ALLOWING EVIDENCE THAT THE CHILD’S NOSE WAS FRACTURED.

¶ 22. Seeling contends that during his questioning by the prosecution he was improperly asked about Draven’s having a broken nose. There was no objection to this at trial. In fact, Seeling’s brief states, “[t]he way it is worked, the Prosecutor will slip it in at one point during the trial admittedly when the Defense is distracted or not attentive.”

¶ 23. This Court has held that “[i]f no contemporaneous objection is made, the error, if any, is waived.” Walker v. State, 671 So.2d 581, 597 (Miss.1995) (citing Foster v. State, 639 So.2d 1263, 1270 (Miss.1994)). Should no objection appear in the. record, this Court will presume that the trial court acted properly. Moawad v. State, 531 So.2d 632, 635 (Miss.1988).

¶ 24. While the autopsy stated that there was a contusion at the base of the nose and left lower eyelid, it was in the hands of the jury to sort out all of the evidence and determine what was credible. Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995), is cited by the State for the proposition that it is in the jury’s purview to decipher the testimony and evidence. Therefore, this issue is proeedurally barred, but, in the alternative, is harmless error at most in light of the weight and credibility of the evidence. It was the jury’s role to decipher the evidence. The difference between a broken nose and a contusion at the base of the nose could have properly been distinguished by the jury.

V. WHETHER THE TRIAL COURT ERRED IN DENYING A MISTRIAL ON THE GROUNDS THAT JURORS WERE DELIBERATING PRIOR TO THE CLOSE OF THE CASE.

¶ 25. Seeling’s counsel moved for a mistrial based on the premise that the jury was prematurely deliberating after the jury sent notes to the judge asking specific questions about the manner in- which the child was fed and asking for phone records. The Court made a court’s exhibit 1 of the two notes that the jury sent the Court before the closing arguments. These notes did not indicate to the trial judge that the jury had made up their mind and were deliberating the case. Every time the jury took a break from the proceedings they were reminded by the judge not to discuss the case.

¶26. In Holland v. State, 587 So.2d 848, 872-74 (Miss.1991), the jury returned a verdict of guilty of capital murder. After conclusion of the guilt phase, but before the beginning of the sentencing phase, the trial judge excused the jury while he and the attorneys discussed some preliminary matters. Id While the judge and attorneys were engaged in discussion, the jury sent a note saying, “[w]e the jury, sentence Gerald James Holland to death.” Id. The trial judge issued a corrective instruction and the sentencing phase commenced. Id. at 878. The jury then deliberated for over two hours before returning a sentence of death. Id.

¶ 27. We reversed, finding the premature deliberations denied the defendant the right to a fair hearing during the sentencing phase. Id. at 874. Had the trial judge questioned the jurors on their ability to remain impartial, the majority noted the result may have been different. Id. The implication from Holland is the trial judge’s corrective instruction to “refrain from further deliberation” was inadequate. Id.

¶ 28. A criminal defendant is guaranteed the right to a trial by an impartial jury. Id. at 873 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Jurors must not “discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court.” Holland, 587 So.2d at 873 (quoting State v. Washington, 182 Conn. 419, 438 A.2d 1144, 1147 (1980) (citing several treatises)). The jury’s discussion of the case before submission constitutes reversible error in almost every instance. Holland, 587 So.2d at 873 (citing Washington, 438 A.2d at 1148).

¶ 29. Holland is distinguishable from White v. State, 742 So.2d 1126, 1132 (Miss.1999). Unlike Holland, the jury in White never gave the court an indication it had considered the guilt or innocence of the defendant before retiring to deliberate. The statements contained in the affidavit submitted by an alternate juror indicated the jury was predetermined to find White not guilty, rather than convict him. Id. The trial judge, on several occasions, instructed the jury not to discuss the case with anyone else or among themselves. Id. Moreover, the trial court in White instructed the jury to decide the case based on the evidence presented at trial. Id. White failed to demonstrate how he was denied a fair trial.

¶ 30. As stated in the dissent in Holland, “any case of this sort must be considered upon the facts before it.” 587 So.2d at 876. In United States v. Klee, 494 F.2d 394 (9th Cir.1974), “eleven of the fourteen jurors (including alternates) discussed the case during recesses and nine of the jurors expressed premature opinions about Klee’s guilt.” 494 F.2d at 395. The Court of Appeals held:

What is involved here is the premature discussion among the jurors themselves about the case. Assuming there was juror misconduct, it is still true that not every incident of juror misconduct requires a new trial.... The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.
When a wise and experienced judge, who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it. The trial judge “was in a better position than we are to determine whether what happened was prejudicial.”

494 F.2d at 396.

¶31. In Commonwealth v. Scanlan, 9 Mass.App.Ct. 173, 400 N.E.2d 1265 (1980), the Massachusetts Appeals Court held:

While the internal discussion among jurors in the face of daily instructions from the judge to the contrary was undesirable ... we would embark on a slippery slope indeed if we began to monitor and evaluate the internal procedures of the jury....
The jury sat sequestered for sixteen days; it is not realistic that the jurors would succeed in keeping their lips sealed in the face of the alternating drama and tedium of the trial. In the interior workings of a jury there is room for impropriety that is short of unlawfulness.

400 N.E.2d at 1272.

¶ 32. The case sub judice is more akin to the White facts than those of Holland. There were two notes passed to the judge by the bailiff from the jurors. Neither of the notes indicated that the jury had reached a conclusion or that they were deliberating. Under the facts of this case, this assignment of error is without error.

CONCLUSION

¶ 33. The alleged errors discussed herein are without merit or harmless and clearly do not warrant a new trial. In determining whether a jury verdict is against the overwhelming weight of the evidence, we must accept as true the evidence which supports the verdict. In this case, the overwhelming weight of the evidence is against Seeling. The judgment of the Hancock County Circuit Court is affirmed.

¶ 34. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

      . Both notes appear to be in different handwriting. One asks, “[i]s there anyway that the State or the defense can produce phone company records or incoming calls for the evening that the baby was taken to the hospital.” The second note asks the following questions: "Was any food forced in baby’s mouth? Did you feed her fast or slow? What type of spoon did you use? When the mother left was the baby crying or restless in the high chair? Have you ever been along (sic) with baby at home before or fed her along (sic) with no one there? After feeding baby was she crying? If she was, why did you give her nipple, pacifier or just try to whole (sic) her? How long did it take you to look up the sister’s number on caller i.d., what kind of machine, phone box?”


author: SMITH, P.J., DIAZ, J.,

text:
    Linda Ann SINGLEY and Steven Dale Singley v. Phillip Lee SMITH.
    No. 2001-CA-01156-SCT.
    Supreme Court of Mississippi.
    April 10, 2003.

      Renee M. Porter, Columbia, Shirley Ann Taylor, Hattiesburg, attorneys for appellants.
    James D. Holland, Ridgeland, George Martin Street, Jr., attorneys for appellee.
   SMITH, P.J.,

for the Court.

¶ 1. Linda Ann Singley and Steven Dale Singley appeal to this Court from an adverse decision of the Lamar County Circuit Court. The issue before the Court concerns the course and scope of Coach Phillip Lee Smith’s employment while supervising his baseball team’s baseball throw booth at an event held by the Oak Grove High School PTA where Linda Singley was injured. Under the Mississippi Tort Claims Act, Miss.Code Ann. § § 11^46-1 to -23 (Rev.2002), there is a rebuttable presumption that any act or omission of a governmental employee within the time and at the place of employment is within the course and scope of employment. Id. § 11^46-5(3). After a thorough review of the record and briefs, we determine as a matter of first impression that proof by a preponderance of the evidence is necessary to overcome this rebuttable presumption. Next, we find that Coach Phillip Lee Smith (Smith) was acting within the course and scope of his employment. Finally, we hold that the release in question here absolutely discharges Smith from any liability for Singley’s injuries.

FACTS

¶2. On October 20, 1994, Linda Ann Singley attended the Oak Grove Fall Festival where her daughter was working in a concessions booth. The Festival took place at Oak Grove High School in Lamar County, Mississippi, with the consent of school authorities, and was sponsored by the Oak Grove PTO, Inc. The purpose of the festival was to raise money for various organizations by operating booths or concessions. One such organization was the Oak Grove athletic booster club. It constructed and operated the baseball throw booth where participants threw a baseball at a backstop and a radar gun detected the speed of the throw. The bulk of the proceeds of the concession went towards the purchase of new sports equipment for Oak Grove athletics.

¶ 3. While standing in the vicinity of the baseball throw, Singley was struck by an errant baseball thrown by a participant in the concession. The ball struck Singley in her left eye causing the loss of her left eye, paralysis of the left side of her face and other injuries.

¶ 4. The baseball throw was designed by Oak Grove High School Assistant Baseball Coach Phillip Lee Smith (Smith), built under his direction by the baseball team, and overseen by Smith during the Festival. Smith was not named in the Singleys’ October 1995 complaint. The defendants named in that complaint either settled with the Singleys or were dismissed by them. In January 1997, the Singleys amended their complaint to include Smith as a defendant. The amended complaint alleged Smith was negligent in the planning, construction, placement, operating, overseeing and maintaining of the concession because he knew or should have known that the placement and operation of the backstop of the concession was dangerous to patrons of the festival.

¶ 5. In May 2001, the Singleys settled with the remaining defendants (excluding Smith) and signed a release that stated

In the event a decision is made by the Court or jury in the trial of this case that Phillip Lee Smith was acting as an employee of the district, as that term is defined by the Mississippi Tort Claims Act, this release shall constitute a full and final release and in accord and satisfaction to all of those released herein, as well as Coach Phillip Lee Smith, in his capacity as employee.

¶ 6. In April 1997, Smith filed a motion for summary judgment. The circuit court heard oral arguments and granted the motion in December 1997, finding that Smith was acting in the course and scope of his employment and was therefore immune from liability under the Mississippi Tort Claims Act. The Singleys appealed this decision, and the Court of Appeals reversed and remanded the case to the circuit court for additional findings of fact as there was a legitimate issue of fact as to whether Smith was acting within the course and scope of his employment. Singley v. Smith, 739 So.2d 448 (Miss.Ct.App.1999).

f 7. On remand, the circuit court conducted a bifurcated trial with the agreement of the parties. After hearing evidence concerning the issue of whether Smith was acting within the course and scope of his employment, the circuit court again found that Smith was acting within the course and scope of his employment, that the statute of limitations bars the Singleys’ claims against Smith, and that the release discharges Smith from any liability for Singleys’ injuries.

¶ 8. The Singleys now appeal that decision challenging whether Smith was acting in the course and scope of his employment.

DISCUSSION

¶ 9. In reviewing the decision of a trial judge sitting without a jury, this Court may only reverse when the findings of the trial judge are manifestly wrong or clearly erroneous. Amerson v. State, 648 So.2d 58, 60 (Miss.1994). A circuit judge sitting without a jury is accorded the same deference as a chancellor, his or her findings will not be overturned if supported by substantial evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000).

¶ 10. In finding that Smith was acting within the course and scope of his employment, the circuit court cited Horton v. Jones, 208 Miss. 257, 44 So.2d 397 (1950), which held that courts must look to the totality of the circumstances and examine (1) the nature of the wrongful act, (2) the character of the employment, and (3) the time and place where the act was committed. Id.

¶ 11. The Singleys, however, cite Partrige v. Harvey, 805 So.2d 668 (Miss.Ct.App.2002), which cites both Horton and Thatcher v. Brennan, 657 F.Supp. 6 (S.D.Miss.1986), aff'd mem. 816 F.2d 675 (5th Cir.1987), in finding that to determine whether a person was acting within the course and scope of their employment, courts should (1) look to whether the employer authorized or ratified the acts of the employees, (2) evaluate whether the employee acted within the scope of employment; and (3) determine whether the employee’s conduct is substantially different from that authorized and whether the act was done as a means of accomplishing the purposes of the employment and in furtherance of the master’s business.

¶ 12. The Singleys then cite Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250, 251 (1945), which held that

(1) The conduct of a servant is within the scope of employment only if
(a) it is of the kind he is employed to perform,
(b) it occurs substantially within the authorized time and space limits,
(c) it is actuated by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another.

¶ 13. They also cite Southern Railway v. Garrett, 136 Miss. 219, 101 So. 348 (1924), for the proposition that an act committed outside the scope of employment does not make the master responsible unless he directed the act to be done or ratified it.

¶ 14. Smith takes a different approach, urging this Court to find that the Singleys must overcome a rebuttable presumption under Miss.Code Ann. § 11-46-5(3) (Rev. 2002), which provides

it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.

¶ 15. This Court has not interpreted the rebuttable presumption of Miss.Code Ann. § 11-46-5; therefore, the issue is one of first impression. We hold that proof by a preponderance of the evidence is necessary to overcome that presumption. This means that the plaintiff must prove his case by producing evidence that is most consistent with the truth and that which accords best with reason and probability. It is that evidence which, after examination, has a greater persuasive and convincing force. Gregory v. Williams, 203 Miss. 455, 35 So.2d 451, 453 (1948). It is evidence which has more convincing force and produces the belief that what is sought to be proved is more probable that not. Gardner v. Wilkinson, 643 F.2d 1135, 1137 (5th Cir.1981). Under this standard and even without the presumption, the trial court considering the totality of the circumstances and the overwhelming proof by Smith properly found that Smith was acting within the course and scope of his employment.

¶ 16. This Court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong. Amerson v. State, 648 So.2d at 60. A judge sitting without a jury “has sole authority for determining the credibility of the witnesses.” Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987). “ ‘A circuit judge sitting without a jury is accorded the same deference as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible and reasonable evidence.” Maldonado v. Kelly, 768 So.2d at 908 (citing City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000); Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)).

¶ 17. The trial court correctly ruled that Coach Phillip Lee Smith was acting in the course and scope of his employment with Oak Grove High School and the Lamar County School District at the time of Singley’s injuries. The trial court held that under the provisions of the Mississippi Tort Claims Act the statute of limitations barred the plaintiffs’ claims. The court also held that the Singleys’ claims were barred by a release signed by the Singleys that specified that Smith would be released upon the determination that he was acting in the course and scope of his employment at the time of the incident. A final judgment was rendered in Smith’s favor.

¶ 18. The sole issue before this Court is whether the findings of the trial judge were manifestly erroneous or wrong. Amerson v. State, 648 So.2d at 60. Under the Mississippi Tort Claims Act it is rebutt-ably presumed that when an employee is covered by that Act, any act or omission within the time and in the place of such employment is to be considered to be within the course and scope of such employment. Miss.Code Ann. § 11-46-5(3). Further, the Mississippi Legislature has set out a limited number of acts considered outside an employee’s course, and scope of employment. Under the Act a governmental employee shall not be considered as acting within the course and scope of his employment if the employee’s conduct constitutes fraud, malice, libel, slander, defamation or any criminal offense other than a traffic violation. Miss.Code Ann. § 11 — 46-5(2).

¶ 19. The trial court correctly looked at the totality of the circumstances to examine the nature of the wrongful act, the employment character, and the time and place where the act occurred. See Horton v. Jones, 208 Miss. 257, 44 So.2d 397 (1950). That court made crucial findings of fact, which are clearly substantial evidence in support of that decision. See Maldonado v. Kelly, 768 So.2d at 908. The trial court then went on to make a proper conclusion of law finding that Smith was clearly within the course and scope of his employment when the accident occurred. To determine whether Smith was acting within the course and scope of his employment, the trial court again properly looked to the totality of the circumstances. Horton, 44 So.2d at 397. Specifically, it examined the nature of the wrongful act, the character of the employment and the time and place where the. act was committed. Id. In Horton we further pointed out that:

Even though the conduct of the servant was unauthorized, it is still in the scope of his employment, it is of the same general nature of, or incidental to, the conduct authorized. In order for the master to escape liability, it must be shown that the servant, when the wrongful act was committed, had abandoned his employment and gone about some purpose of his own, not incident to his employment.

Id. at 399 (citing Loper v. Yazoo & M.V.R. Co., 166 Miss. 79, 145 So. 743 (1933); Barmore v. Vicksburg, S. & P. Ry., 85 Miss. 426, 38 So. 210 (1905)). Although not employed to be negligent, this does not mean that the wrongful act is outside the scope of his employment. Horton, 44 So.2d at 399.

¶ 20. In Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888 (Miss.1980), this Court defined “in the course and scope of employment” as applicable to workers’ compensation issues. This Court stated that arising out of employment is a causal connection between the employment and the injury. Id. at 890. The Court further defined “in the course of employment” as “whenever the injury resulted from activity, which is in its overall contours actuated (partly) by a duty to serve the employer or reasonable incident to the employment.” Id.

¶21. As the trial court found, Smith was clearly acting in the course and scope of his employment. Smith would not have been present at the fundraiser nor would he have participated in the baseball team’s construction and operation of the concession stand using the team equipment and funding that team if not for his status as an employee of Oak Grove High School. Further, there was no evidence that Smith engaged in any of the exceptions contained in Miss.Code Ann. § 11-46-5(2).

' ¶ 22. A case such as this turns on the facts. The trial court’s first order granted summary judgment in favor of Smith finding that Smith was immune from liability because he was acting in the course and scope of his employment on the date of the accident. The case was subsequently remanded by the Court of Appeals for further findings of fact. The additional findings of fact now within the record convince this Court that the trial court was correct in its judgment.

¶ 23. Smith was an employee of the Lamar County School District and the Oak Grove High School as a teacher and coach. The accident occurred on Oak Grove High School property. The Oak Grove Fall Festival was sanctioned and/or sponsored by the Oak Grove PTO, Inc. The use of the premises was approved by the Oak Grove Attendance Center and the Lamar County School District. Smith was acting as the Assistant Baseball Coach. The equipment used by the patrons was owned and provided by the Oak Grove High School. Smith’s duties at the festival were the same as they were at any other time in his performance of his job in that they were performed in the best interests of Oak Grove High School. Under Smith’s direction acting as their coach, the baseball throw was constructed by Oak Grove baseball players. Smith was responsible for setting up the throw at the Oak Grove Fall Festival. He became involved after the Oak Grove PTO delivered a letter in his teacher’s box at the high school, asking for school groups and teams to operate booths at the festival. The PTO decided the location of the booth.

¶ 24. Smith and the team agreed to operate the booth to pay back the Athletic Booster Club for the team’s radar gun. At the time of the accident, he was not at the Fall Festival for his own benefit, but for the benefit of the Oak Grove High School baseball team, the Oak Grove High School and the Lamar County School District. The money that was received by the Oak Grove PTO at the festival was used on behalf and to benefit the team, the school and the school district. According to Karen Lewis, the chairman of the Oak Grove PTO, the Oak Grove baseball team operated the booth. Lewis also speculated that the team would use the money made by the team. Lewis stated that the proceeds received by the Athletic Booster Club were put back into the school’s athletic facilities. Similarly, the Oak Grove PTO indicated that funds raised by the festival would be distributed to the school in an effort to improve the school. Smith operated the booth on behalf of the baseball team. He maintained that it was his responsibility to oversee the booth since he was the assistant coach. He was motivated to operate the booth to help repay the Athletic Booster Club which had recently purchased a radar gun for the Oak Grove High School baseball team. The Athletic Booster Club was created by parents to perform fund raising events to buy equipment and improve athletic facilities at the Oak Grove Attendance Center in the Lamar County School District. The club was founded to benefit the school because of limited funds allocated to athletics. The money made off of the booth was given to the Oak Grove Athletic Booster Club. The Booster Club provided the booth with coins and change to open the concession. The Athletic Booster Club would use the proceeds to buy equipment and meet the needs of the baseball team.

¶ 25. Smith was not operating the booth in his capacity as an individual but rather as an employee and as the assistant baseball Coach at Oak Grove High School. Smith would not have been monitoring the booth if he had not been the Oak Grove High School Assistant Baseball coach at the time of the Oak Grove Fall Festival. “But for” his employment at the Oak Grove High School and the Lamar County School District, he would not have been at the Oak Grove Fall Festival nor would he have been asked to set up or operate the baseball throw. All of his actions were taken on behalf of Oak Grove High School and the Lamar County School District and in the course and scope of his employment with those entities.

¶ 26. After the Court of Appeals remanded the case to the trial court, the trial court once again found that Smith was acting in the course and scope of his employment. Testimony came from Carolyn Adams, the principal of Oak Grove Attendance Center, Karen Lewis, an Oak Grove PTO member and chairman of the festival, and Smith. Adams stated that the festival was held on the school football field and the “whole function of it was in support of the school.” Adams testified as to the importance of fund-raising on the life of the school in that the school is dependent on outside funds for such programs to provide full and quality education for the children. Adams further indicated that the money raised was used to improve the school for the benefit of the children. Most importantly, she testified that the school required insurance to be purchased for events such as this.

¶ 27. Adams stated that a coach’s individual duties were not all listed by the employment contracts. She testified that club or group sponsors are required to attend whenever there is a meeting or function. She testified that she would expect Smith to be present whenever the baseball team was officially gathered. She related that Smith, as assistant baseball coach, was the only school employee present at the booth, and she considered him to be the official sponsor of the booth.

¶ 28. Adams’s deposition testimony described the character of the event and the nature of Smith’s participation. In that deposition, she testified that she did not believe that Smith was operating the booth as an individual but on behalf of the team as a group or a club.

¶ 29. Smith’s testimony was also relevant in support of his position that he was acting in the course and scope of his employment. He indicated that he volunteered to help at the festival because he felt it was his place to do so as the assistant baseball coach. A thorough review of his testimony reveals that “but for” his employment with Oak Grove High School and the Lamar County School District he would not have been at the fall festival.

¶ 30. After the trial on remand, the trial court once again found that Smith was acting within the course and scope of his employment. The court’s findings of fact are clearly indicative of Smith’s status at the time of the incident. Relevant to the court was that the Oak Grove Fall Festival is a fund raising function open to the general public and held on school grounds. Linda Singley was struck at that festival at a concession called the baseball throw. The baseball throw is a concession that invites patrons to throw a baseball toward a backstop and have the throw clocked by a radar gun. Josh Stuart, a patron, threw a ball and missed the backstop, hitting Singley in the face. Smith was employed at that time as a teacher and assistant baseball coach at Oak Grove. He was present to oversee the operation of the baseball throw. The booth was constructed by the Oak Grove athletic booster club to raise money for sports equipment. All of the money raised was to be given to Oak Grove sports teams.

¶ 31. The trial court noted that it was undisputed that the money raised at the baseball throw was used to purchase equipment for the Oak Grove High School baseball team. The trial court found that Smith was present at the Fall Festival to supervise the operation of the baseball throw by the members of the Oak Grove baseball team. The trial court analyzed the scope of Smith’s duties by looking past the “four corners” of his employment contract. Finally, the trial court concluded by stating that Smith was present that day because of his employment and because he felt it was his place as an employee to be there and that he would have not been asked to be there unless he was employed as baseball coach at Oak Grove. Based on these findings, the circuit court again found Smith to be acting within the course and scope of his employment.

¶ 32. To accept the position argued by Singley would subject educators to potential liability every time they step away from the schoolhouse door. In his position as assistant coach of the Oak Grove baseball team, Smith was merely doing his job to supervise his baseball team in an attempt to raise money for the new sports equipment. To accept the position argued by Singley would result in a dramatic curtailment or halt to many extracurricular activities within our public schools which allow children to receive a well-rounded education. We conclude that the facts here are more than enough to support the trial court’s decision. In a bench trial such as the case at bar, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648 (Miss.1991); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990). We hold that the trial court’s decision was not manifestly erroneous.

CONCLUSION

¶ 33. We hold that the statute of limitations and the release bar this action by the Singleys since Smith was acting in the course and scope of his employment with Oak Grove High School and the Lamar County School District. As a result, the Mississippi Tort Claims Act provides Smith immunity. We therefore affirm the trial court’s judgment.

¶ 34. AFFIRMED.

PITTMAN, C.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ„ CONCUR. DIAZ, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J.

DIAZ, J.,

dissenting:

¶ 35. Had any other volunteer at the festival been negligent, his or her employment would not have exempted them from liability. It is unfair to the Singleys to rule that they are not able to recover from Smith because he was employed by the school district when, if this had occurred through the negligence of any other parent volunteer or student volunteer performing the same function as Smith, the Singleys would have been able to recover. Because I disagree that Smith was acting within the scope of his employment and because the majority unjustly rewards Smith (and punishes the Singleys) for the erroneous classification it places on him, I respectfully dissent.

¶ 36. The majority decides, as a matter of first impression, that the Singleys must prove by a preponderance of the evidence that the rebuttable presumption of Miss. Code Ann. § § 11-46-5 (Rev.2002) has been overcome. Although requiring a preponderance of the evidence may indeed be the proper burden of proof, I do not agree with the majority’s decision to announce it in this case. In order to apply the presumption, it must first be demonstrated that Smith was acting “within the time and place of his employment.” In my opinion, the evidence presented in this case clearly establishes that Smith was outside both the time and the place of his employment as a baseball coach.

¶ 37. Under Partrige v. Harvey, 805 So.2d 668, 671 (Miss.Ct.App.2002), this Court should (1) look to whether the employer authorized or ratified the acts of the employees, (2) evaluate whether the employee acted within the scope of employment; and (3) determine whether the employee’s conduct is substantially different from that authorized and whether the act was done as a means of accomplishing the purposes of the employment and in furtherance of the master’s business.

¶ 38. Smith testified that he was working as a volunteer for the booster club, and not in an official capacity, and that the booth had been operated strictly by booster club members in the past. Carolyn Adams, the principal and Smith’s supervisor, stated in her affidavit that the festival was put on solely by the Oak Grove PTO and its volunteers, that the festival was held outside normal school hours, that it was not an officially sanctioned school activity, that she considered Smith the official sponsor of the booth, and that no employee of the school was required to attend or participate. Adams also testified that the goal of the festival was to raise money for the school through the PTO, but that teachers were not required to attend the festival and would not be reprimanded for not attending.

¶ 89. From the trial testimony, the following conclusions are apparent: the school allows “clubs” to be formed under school created guidelines (that the club be approved and sponsored by a school employee); fundraisers are organized and held by the PTO for the benefit of the school sanctioned clubs; and the “clubs” which participate in the fundraisers include different grade levels and booster clubs (such as the athletic booster club). Furthermore, it is a normal occurrence for the sponsor of a club to be present to direct that club’s booth. The booster club sponsored the baseball throw for the benefit of the baseball team, which is itself a “club” for all intents and purposes of the fundraiser. In fact, the baseball team members signed up to work time slots at the booth during the festival. It is true that Smith volunteered to work the booth, but all the teachers and school employees who sponsored clubs were technically “volunteers.”

¶ 40. Smith was not acting as a “sponsor” of a club as the employee handbook defines those terms because the booster club was the actual sponsor of the baseball throw and Smith and his team volunteered to operate it because they would be the recipients of the money. As stated by the majority, the outcome of this decision depends greatly on interpretation of the facts.

¶ 41. It is my opinion that Smith was not acting within the time and at the place of his employment. Though the accident occurred on school property, Smith was not performing any duty of his employer. Principal Adams testified that Smith was not at the festival as an employee. The conduct of Smith as a volunteer at the Fall Festival was not of the kind he was employed to perform. He was hired to be an assistant baseball coach, not a volunteer at a PTO fundraiser. While it is indeed commendable that he volunteered his time and services for this event, he did not do so in order to benefit his employer or as an incident of his employment.

¶ 42. The majority argues that “but for” Smith’s employment he would not have been involved with the baseball throw. However, as the Court of Appeals properly found, there are many activities a person may participate in “but for” their employment, but all of those activities are not considered to be within the course and scope of the employee’s employment. Singley v. Smith, 739 So.2d 448, 451 (Miss. Ct.App.1999). As that court wisely reasoned:

There are many activities that an employee would probably not undertake “but for” his employment. One such activity would be driving from home to the workplace each morning. However, there is no logical basis to conclude that every activity that can be fit into this kind of analysis is an official act within the course and scope of the individual’s employment.

Singley, 739 So.2d at 451. I agree with this reasoning and conclude that a finding that Smith was acting within the course and scope of his employment based on a “but for” analysis is inappropriate. Linda Singley was at the festival because her daughter was working there. “But for” her daughter’s work there, she would not have been at the festival. Should we then, because their daughter was working at the festival, conclude that the Singleys only recourse against the school is workers’ compensation benefits?

¶43. As a volunteer at the festival, Smith was involved in a fund-raising project for the Booster Club, a completely separate organization; his actions did not serve his master. The festival was not an officially sanctioned school activity. It was a fund-raising function open to the general public; held outside normal school hours. Smith’s act of volunteering was not required or even suggested by his employer. The event was not supervised by his employer and Smith’s participation was solicited by the Booster Club, not the school. Smith testified in his deposition that he built the booth on behalf of the Booster Club, not the school. The proceeds from the booth were turned over to the Booster Club, not the school. He personally received no compensation for his services. Though some of the proceeds may have gone back into the baseball team’s general fund, they would have received the money with or without Smith’s assistance as a volunteer.

¶44. If the Singleys were allowed to recover, I do not foresee the “dramatic curtailment or halt to many extracurricular activities within our public schools” which the majority warns against. Nor am I convinced that allowing the Singleys’ action to proceed will “subject educators to potential liability every time they step away from the schoolhouse door.” Rather, I foresee the majority’s decision as the more damaging, as it will allow more tort-feasors to escape their personal liability by hiding under the cloak of governmental immunity. Extracurricular activities at our schools will not be curtailed if tortfea-sors are held accountable for their actions; rather, these activities will be conducted more with the safety of our children as the utmost goal and less with the concern for limitation of personal liability.

¶ 45. The release signed by the Sing-leys, and relied upon by the majority as one reason to deny their claim, states as follows:

In the event a decision is made by the Court or jury in the trial of this case that Phillip Lee Smith was acting as an employee of the district, as that term is defined by the Mississippi Tort Claims Act, this release shall constitute a full and final release and in accord and satisfaction to all of those released herein, as well as Coach Phillip Lee Smith, in his capacity as employee.

(emphasis added). Because Smith was not acting within the time and place of his employment, it follows, given the particular circumstances of this case, that he was not acting within the course and scope of his employment either. Therefore, the Mississippi .Tort Claims Act does not apply, and the Singleys’ claims are not barred by the statute of limitations or by principles of governmental immunity. Likewise, because the waiver signed by the Singleys only operated to release Smith “in his capacity as an employee” it does not bar their claim against him personally. I would reverse the judgment of the trial court and remand this case for proceedings not inconsistent with this opinion.

McRAE, P.J., JOINS THIS OPINION.