author: 11 CARAWAY, J., | T BROWN, C.J.,

text:
    B.J. PIPPEN, Jr. and Rhonda Pippen On Behalf of Morgan Pippen, Deceased, Plaintiffs, v. MOREHOUSE GENERAL HOSPITAL and Dr. Mamdouh Mickail, Defendants-Appellant.
    No. 38,059-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2003.

      Hudson, Potts & Bernstein by: Gordon L. James, for Appellant, Dr. Mamdouh Mickail.
    Richard Fewell, Jr., West Monroe, for Appellees.
    Before BROWN, GASKINS, CARAWAY, PEATROSS and MOORE, JJ.
   I, WRIT GRANTED AND MADE PEREMPTORY

In this medical malpractice action set for jury trial, applicant, Dr. Mamdouh Mickail, seeks review of a ruling that would allow evidence relating to his substance abuse problems and treatment therefor.

The plaintiffs have made several allegations against applicant of failure to act, and the ultimate question the jury must answer is whether the applicant, through failure to act, breached the appropriate standard of care in treatment of the infant, Morgan Pippen.

Under the circumstances, we have severe reservations concerning whether the evidence at issue should be assigned any probative value in this case. However, assuming probative value arguendo, and after carefully reviewing the entire writ application, we are persuaded that the trial court erred in deciding to allow the admission of the evidence at issue.

Considering the stigma of drug addiction and the consequent danger of unfair prejudice herein, and weighing that danger against any probative value of such evidence under the circumstances of this case, we conclude that the danger of unfair prejudice substantially outweighs any such probative value. Accordingly, we hereby reverse the trial court’s ruling allowing the admission of the evidence at issue, and order that testimony and/or records relating to applicant’s substance abuse treatment not be admitted at the upcoming jury trial.

CARAWAY, J., concurs with written reasons.

BROWN, C.J., dissents with written reasons.

GASKINS, J., dissents for the reasons articulated by J. BROWN.

11 CARAWAY, J.,

concurring.

I concur to add the legal authority missing from the majority opinion. I can assume no probative value for this evidence in view of that authority.

The disputed evidence falls into the category of evidence addressed in La. C.E. arts. 608(B) and 404. State v. Williams, 575 So.2d 452 (La.App. 4th Cir.1991). I assign the evidence no probative value because Article 404(A) makes such assignment by barring its introduction. While Article 404(B) allows for an exception to Article 404(A) as to Dr. Mamdouh Mick-ail’s prior acts of drug abuse, the plaintiffs in response to the motion in limine did not demonstrate any disputed issue in the case for which the evidence has any particular probative value under Article 404(B) other than as character evidence.

| T BROWN, C.J.,

Dissenting.

In this medical malpractice case, defendant, Dr. Mamdouh Mickail, moved the trial court to prohibit any mention, by any party, their attorney, or witness, of defendant’s history of substance abuse. The trial court denied the motion, and this writ application followed. Dr. Mickail is a 46-year-old pediatrician who has a long and significant history of alcohol and drug abuse, both before and after the alleged malpractice. In January of 2003, he was in a treatment program at Palmetto Addition Recovery Center (PARC) due to alcohol and hydrocodone use. The gravamen of this malpractice case involves both acts and omissions in the treatment administered by Dr. Mickail to a newborn infant in September 1994. The baby died the next month. A year earlier, in 1993, Dr. Mick-ail was in substance abuse treatment for four and a half months at COPAC. He had relapses in 1997, 2001, 2002 and 2003. It appears from statements in the trial court that Dr. Mickail is no longer in practice. Other than Dr. Mickail’s statements found in substance abuse reports, no evidence was presented by defendant to show that he was not abusing drugs during the care of the infant. The trial court ruled “in light of the fact that this is a physician who takes life into his hands ... I think they (the jury) ought to be able to determine his qualifications and whether he was subject to drugs” at the time he cared for this child. The trial court believed that this evidence was probative and that the jury is capable of discerning the facts and circumstances. I agree.

I question how the majority determined that this evidence was not probative or if of some value, was greatly outweighed by its prejudicial effect. That appears to be a factual finding based only on what Dr. Mickail’s attorney chose to present in his application and even that was redacted.

Thus, I must dissent, respectfully.


source: Caselaw Access Project

author: EASLEY, Justice, McRAE, Presiding Justice, SMITH, Presiding Justice,

license: Public Domain

text:
    Heather GAMBLE, a Minor, by and through her Mother and Adult Next Friend, Rebecca GAMBLE v. DOLLAR GENERAL CORPORATION, a Tennessee Corporation, and Sheri Thornton.
    No. 2000-CA-01545-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2003.

      J. Andrew Phelps, Mark Thomas Finch, Hattiesburg, attorneys for appellant.
    William E. Ready, Jr., Meridian, Neil A. Morris, attorneys for appellees.
   ON MOTION FOR REHEARING

EASLEY, Justice,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor. Part I of this opinion addresses the issue of compensatory damages and other issues arising in the compensatory stage of trial by Gamble on direct appeal and Dollar General on cross-appeal. Part II of this opinion addresses the issue of punitive damages by Dollar General on cross-appeal.

¶ 2. On April 6, 1999, Heather Gamble filed a complaint against Dollar General Corporation and Sherry Thornton in the Circuit Court of Lamar County, Mississippi, seeking compensatory and punitive damages for assault, negligence, intentional and/or negligent infliction of mental and emotional distress and anguish, wrongful detention and arrest, and outrage and slander. Gamble alleged that Thornton, an employee of Dollar General, followed her from the Dollar General store to the parking area of a Family Dollar store, where she accused Gamble of shoplifting and grabbed Gamble by her underwear.

¶ 3. On April 25, 2000, Gamble filed an amended complaint, adding a claim for fraud, bad faith and breach of fiduciary duties based on Dollar General’s failure to disclose in discovery that Dollar General had relevant insurance coverage in the amount of $102,000,000.00. In particular, Gamble claims that Dollar General represented that it was self-insured and concealed the relevant insurance coverage until after mediation had taken place. The amended claim was severed before trial.

¶ 4. The trial began on May 1, 2000. Jury instructions were refused for false arrest, wrongful detention, defamation/slander, and the tort of outrage. The jury was instructed on assault, negligent supervision/training, negligent and intentional infliction of emotional distress, and punitive damages. The jury returned a verdict against Thornton and Dollar General for actual damages in the amount of $75,000, and, after additional instructions, the jury returned a verdict in favor of Gamble against Dollar General in the amount of $100,000 in punitive damages. On August 14, 2000, in response to Dollar General’s motion to dismiss the amended claims, the circuit court, Honorable Michael Eubanks presiding, entered an order dismissing the amended claim. Gamble now asks that this Court reverse the trial court’s dismissal of her claims for fraud, bad faith, and breach of fiduciary duties. On cross-appeal, Dollar General, based on several allegations of error, asks that this Court reverse the judgment entered on the jury verdict in favor of Gamble and enter a judgment for Dollar General and Thornton, order a new trial on damages, vacate and reverse the award of punitive damages, and/or order a substantial remit-titur of Gamble’s damages.

FACTS

¶ 5. The following facts are relevant as to Gamble’s appeal. Gamble filed her complaint on April 6, 1999, demanding actual and punitive damages in excess of $2,500 against Dollar General and Sherry Thornton. On August 25, 1999, Dollar General responded to Gamble’s first set of interrogatories. Interrogatory Number 8 asked Dollar General to state whether it was a named insured on any insurance policy that might provide coverage as to the allegations in the complaint; also, the interrogatory requested disclosure of the extent of liability coverage provided by that policy on the date of the incident. Dollar General responded by stating that “[tjhis [ajnswering defendant is self-insured.” The response was stated under oath by the claims manager, Michelle Hughes. For approximately 4 hours on October 15, 1999, the parties attempted mediation but were unsuccessful. Hughes was present at the mediation.

¶ 6. On November 1,1999, Dollar General filed its Third Supplemental Response to Interrogatory Number 8, again under the oath of Hughes, stating that Dollar General was self-insured up to the combined single limit deductible of $500,000, with a commercial general liability aggregate of $2,000,000, as well as an overlapping punitive damages wrap-around policy. The $2,000,000 policy was attached. The second supplemental response to Interrogatory 8 is not at issue. On the same day, at a deposition, Michelle Hughes stated that on August 25,1999, the day she answered Gamble’s interrogatories, she was aware of an additional or excess policy. Based on these facts, the circuit court permitted Gamble to amend her complaint to include the fraud claims. On August 14, 2000, the trial court dismissed Gamble’s claims for fraud.

¶ 7. The remaining facts are relevant as to Dollar General’s cross-appeal. On March 19, 1999, at about noon, Gamble, a nineteen-year-old college student, stopped by the Dollar General store in Purvis, Mississippi, to purchase a shirt to wear to work. She stated that she needed a new shirt because she had soiled her shirt with oil pastels while in art class at Pearl River Community College. Gamble did not find anything at the Dollar General and proceeded to the Family Dollar store to look for a shirt. Upon leaving the Dollar General store, Gamble observed that a Dollar General employee had rushed up behind her car to write something down, as if she were writing down her license tag number.

¶ 8. After Gamble arrived at the Family Dollar store, she noticed that the same individual who wrote down her tag number had followed her to the Family Dollar store and parked directly behind her, blocking her vehicle. At this point, Gamble asked the “angry-looking” individual, Thornton, why she was following her and why she had taken down her tag number. Thornton approached Gamble and asked her what she had in her pants. Gamble thought she may have had an outline from class in her back pocket, so she reached in her back pocket but had nothing. Thornton then grabbed at Gamble’s panties from the back of her pants and tugged on them. At this point, it became obvious to Gamble that Thornton was accusing her of shoplifting. The two exchanged a few words, and Thornton left, satisfied that Gamble had not shoplifted.

¶ 9. Gamble went to the police station to report the incident. The police officers told Gamble that they would investigate the incident and speak with Thornton. The officers testified that Gamble was extremely upset and crying because of the incident. Testimony from Gamble’s parents and a friend of Gamble’s was also presented to the jury. Gamble testified that she felt like she had been assaulted and humiliated by Thornton. She stated that no one from Dollar General had ever apologized to her for the incident. She testified that the incident has upset her emotionally, has affected her grades, has caused her to suffer from insomnia about four nights a week and has caused her embarrassment.

DISCUSSION

¶ 10. In regards to Gamble’s amended claim, “the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss.1995). When considering a motion to dismiss for failure to state a claim, this Court reviews the claim de novo. Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000).

PART I: Compensatory Damages

A. ISSUES ON APPEAL

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING GAMBLE’S CLAIM FOR FRAUD, BAD FAITH AND BREACH OF FIDUCIARY DUTIES.

¶ 11. This Court has not addressed this issue in any previous cases. Gamble argues that when parties are involved in mediation, the opposing party has a duty to act in good faith in seeking and participating in mediation. The opposing party, according to Gamble, must not use mediation as a tactic to delay trial or to determine the strengths and weaknesses of the opposition.

¶ 12. The elements of fraud are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speakers intent that the representation be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on the representation’s truth; (8) the hearer’s right to rely thereon; and, (9) the hearer’s consequent and proximate damages. Allen v. Mac Tools, Inc., 671 So.2d 636, 642 (Miss.1996). Gamble argues that Dollar General’s concealment of relevant insurance coverage rises to the level of misrepresentation and concealment that would entitle Gamble to a cause of action based on fraud. Gamble alleges that the misrepresentation by Dollar General has caused detriment to Gamble in the form of four hours of wasted time, the loss of an opportunity for a successful mediation, additional stress and an unfair opportunity for Dollar General to measure the strengths and weaknesses of Gamble’s case at mediation. Gamble also argues that because Dollar General did not file a response to her amended complaint, by rule, Gamble’s amended allegation should have been recognized as admitted.

¶ 13. On the other hand, Dollar General argues that under M.R.C.P. 12(b), Dollar General had the option of either filing an answer to the amended claims or filing a motion to dismiss. Dollar General argues that Gamble’s cause of action lacks any reasonable basis in law and is entirely without merit. Dollar General filed a motion for Rule 11 sanctions against Gamble for filing a frivolous cause of action. M.R.C.P. 11. The circuit court denied Dollar General’s motion for sanctions. Dollar General instead asks that this Court sanction Gamble for her conduct and for raising a frivolous appeal.

¶ 14. This Court affirms the dismissal of Gamble’s claim for fraud. Other than her reference to the general law on fraud, Gamble has presented no meaningful arguments and no legal support for a civil claim with regard to misrepresentations in discovery. The proper course of action for Gamble would have been to seek recourse under the discovery rules themselves. Recourse for violations of discovery rules is set forth in the Mississippi Rules of Civil Procedure. See M.R.C.P. 37.

B. ISSUES ON CROSS-APPEAL

¶ 15. A trial court should only grant a motion for a new trial if it believes the jury verdict is against the overwhelming weight of the evidence or is contrary to the law. Allstate Ins. Co. v. McGory, 697 So.2d 1171, 1174 (Miss.1997). This Court will not overturn a denial of a motion for new trial unless the trial judge abused his discretion. Gleeton v. State, 716 So.2d 1083, 1089 (Miss.1998).

I. DID THE TRIAL COURT ERR BY NOT REQUIRING GAMBLE TO CALL A MEDICAL EXPERT TO ESTABLISH CAUSATION OF HER INSOMNIA, HEADACHES AND RESULTING DAMAGES?

¶ 16. Dollar General presented a motion in limine requesting that the trial court not allow Gamble to testify that she experienced insomnia as a result of Dollar General and Thornton’s conduct. The trial court denied the motion finding that expert testimony was not required to prove that the victim of an intentional tort suffered mental anguish because the trier of fact has some expertise with regard to mental anguish.

¶ 17. Dollar General argues that Gamble’s testimony that the incident has caused her loss of sleep was not admissible because Gamble was treated for insomnia sometime in 1997, prior to the incident at issue. Also, Dollar General asserts that insomnia is a medical condition which requires proof by expert testimony. Dollar General believes that Gamble’s testimony that she was emotionally upset or experienced a loss of sleep is insufficient to support an award of compensatory damages, and that expert testimony is required to establish a causal connection between the insomnia and the incident in question. Also, Dollar General claims that Gamble’s emotional distress was only momentary.

¶ 18. Where there is resulting physical harm or mental assault, requiring treatment by the medical profession, a legal cause of action can exist. Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1211-12 (Miss.2000) (citing Sears Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss.1981)). “Mental anguish is a nebulous concept ... and requires substantial proof for recovery.” Morrison v. Means, 680 So.2d 803, 805 (Miss.1996).

¶ 19. Where there is no physical injury, recovery for mental anguish can be appropriate under certain circumstances when the defendant’s conduct evokes outrage or revulsion. Summers, 759 So.2d at 1211. Furthermore, expert testimony showing actual harm or proof of physical or mental injury is not always required. Where there are claims involving only sleeplessness, mental anguish, and humiliation, compensatory damages can be awarded based “on the nature of the incident from which the damages flow.” Whitten v. Cox, 799 So.2d 1, 10-11 (Miss.2000). In cases in which there is evidence of willful, wanton, malicious, outrageous or intentional wrongs, and where mental or emotional stress is a foreseeable result of the conduct of the defendant, a court can assess damages for mental and emotional distress. Adams v. U.S. Homecrafters, Inc. 744 So.2d 736, 743 (Miss.1999) (a claim of mental anguish based on simple negligence did not require evidence of physical manifestation). See also American Bankers’ Ins. Co. v. Wells, 819 So.2d 1196, 1208-09 (Miss.2001); Mississippi Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 148 (Miss.1998); Means, 680 So.2d at 806; Devers, 405 So.2d at 902; Lyons v. Zale Jewelry Co., 246 Miss. 139, 149, 150 So.2d 154, 158 (1963). “If there is outrageous conduct, no injury is required for the recovery of infliction of emotional distress or mental anguish.” Means, 680 So.2d at 806 (citing Leaf River Prods. Inc. v. Ferguson, 662 So.2d 648, 659 (Miss.1995)). The plaintiff does not have to present further proof of injury. The nature of the act itself, rather than the seriousness of the consequences, can justify an award for compensatory damages. Devers, 405 So.2d at 902.

¶ 20. In the instant case, the jury was instructed on whether the defendants’ conduct rose to the level of assault and intentional infliction of emotional distress, not just ordinary negligence. The question to ask is whether the facts justify more than nominal damages. Whitten, 799 So.2d at 10. The issue boils down to a credibility issue for the jury with regard to the offensive, outrageous, injurious or malicious nature of Thornton’s conduct when she assaulted Gamble and caused her mental distress.

¶ 21. This Court distinguished the facts in Whitten from other cases involving claims of mental anguish and infliction of emotional distress because in Whitten the conduct “amounted to more than a mere ‘discomfort.’ ” Id. In Whitten, the plaintiffs were confronted by an armed man who fired several shots, pointed his weapon at the men, handcuffed one of the plaintiffs, and pulled one plaintiffs cap down over his eyes. Id. at 6-7. In Harbin, an example of a case in which the facts only amounted to mere annoyance or discomfort, the Court of Appeals found that a high school student who sued a photographer for alleged invasion of privacy, for use of a photograph without permission, did not suffer harm which would be com-pensable. Harbin v. Jennings, 734 So.2d 269, 273 (Miss.Ct.App.1999). In Means, this Court determined that failed expectations and mutual misunderstandings could not give rise to an award for damages for emotional distress. Means, 680 So.2d at 804.

¶ 22. In Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941) the appellants were the operators of about forty eight retail stores. The appellee purchased an article of underwear, paid for it, and departed the store. Id. The manager of the store witnessed the purchase but became suspicious that the appellee had taken away two garments but had only paid for one garment. Id. The manager left the store and followed the appellee a block away from the store. Id. at 511. The manager called to the appellee, while in the presence of others, and stated that he needed to investigate whether she had taken two garments instead of one. Id. The manager forcibly seized the package and examined it, only to discover that he had made a mistake. Id. This Court found that an assault had been committed and that the award of damages was not excessive. Id. This Court stated that our courts should not tolerate such conduct. Id. In the instant case, although there was no testimony that anyone witnessed the incident, based on the record, the conduct of Dollar General’s employee appears to be just as offensive, if not more offensive than the employee’s conduct in Morgan.

¶ 23. The facts in the instant case are more akin to the facts in Whitten and Morgan. The conduct in the present case was confrontational, physical, demeaning, and embarrassing enough such that compensatory damages were appropriately considered by the jury. This Court can not say that the trial judge erred in allowing the issue of compensatory damages to go to a jury.

¶ 24. Dollar General argues that the facts of this case and the momentary touching of Gamble could not result in the type of emotional distress that justifies an award for more than nominal damages. Dollar General believes that Gamble could only have been momentarily upset over the incident. This Court has held that a plaintiff who asserts a claim for mental anguish, whether as a result of negligence or an intentional tort must prove that the emotional distress was a reasonably foreseeable result of the defendant’s conduct. Morgan v. Greenwaldt, 786 So.2d 1037, 1044 (Miss.2001). Under the facts of this case, a reasonable jury could find that Dollar General’s conduct toward Gamble could result in the type of emotional distress described by Gamble.

¶ 25. Dollar General also claims that it suffered prejudice due to the trial court’s failure to strike testimony that indicated Gamble’s headaches were cause by the incident. Gamble testified that she suffered headaches for a period of time after the accident, beginning in November of 1999, and that her doctors told her the headaches were probably stress ■ related. She also testified that she has had headache problems recently. However, Gamble did not testify that her headaches were caused by the incident. She testified that she has been under stress because of the incident with Dollar General, but she confirmed that no doctor has stated that the headaches might be caused by the incident. This Court finds that Gamble did not testify to any stress related injury that had to be confirmed by an expert. Furthermore, a layperson could determine whether the conduct of Dollar General was outrageous enough to cause stress and insomnia.

¶ 26. Dollar General also adds that Gamble’s encounter with Thornton and the touching that occurred was not traumatic enough to support a claim of mental anguish. Based on a review of the record, there was sufficient evidence offered at trial to present a jury question as to whether the conduct by Thornton supported Gamble’s claim that she suffered mental anguish. This issue is without merit.

II. DID GAMBLE ESTABLISH A PRIMA FACIE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?

¶ 27. Dollar General asserts that because Gamble continued shopping, went to work, and never sought medical treatment, that she could not have met her burden for proving intentional infliction of emotional distress. Gamble testified that she was too upset to stay at work and went home early that day. Dollar General asserts that Gamble must present substantial proof to prevail on a claim of intentional emotional distress. Means, 680 So.2d at 805. The facts in the instant case are sufficiently outrageous to present a jury issue as to whether Gamble suffered intentional infliction of emotional distress. Based on a review of the record, there was substantial evidence presented for Gamble to prevail on her claims. This issue is without merit.

III. DID THE TRIAL COURT ERR IN GRANTING ITS INSTRUCTION 14A?

¶ 28. Instruction. 14A states as follows:

If you find from a preponderance of the evidence that the actions and/or omissions of Sheri Thornton or any other employee of the Defendant corporation were performed either intentionally in an effort to cause Heather Gamble to sustain and experience mental and emotional distress and anguish or that said actions and/or omissions on the part of the Defendants were performed negligently which resulted in mental and emotional distress and anguish being suffered by Heather Gamble, which distress and anguish were reasonably foreseeable results of Defendant’s Conduct, then your verdict shall be for the Plaintiff as to said claim. However, if you find that the Plaintiff has failed to prove these elements by a preponderance of the evidence, then your verdict shall be for the Defendants as to said count.

Dollar General states that this instruction is a misstatement of the law and that it improperly fails to distinguish between the standards for proving the elements of intentional infliction of emotional distress and the elements of negligent infliction of emotional distress. Dollar General offers no legal support for its determination that Instruction 14A was improper. This Court finds that Jury Instruction 14A sufficiently instructs the jury as to the elements for proving each claim. This issue lacks merit.

IV. DID THE TRIAL COURT ERR IN ALLOWING THE JURY TO CONSIDER THE CLAIM OF NEGLIGENT TRAINING.

¶ 29. Dollar General argues that the jury should not have been allowed to hear Gamble’s claim of negligent training. Dollar General had a written shoplifting policy that stated that no employee should leave a store to go after a suspected shoplifter and no employee should ever touch a shoplifter. Dollar General argues that this policy was provided to Thornton and that she read and understood the policy. Gamble asserted at trial that merely providing the policy to Thornton, without actually providing any training, was sufficient evidence to establish a claim of negligent training.

¶ 30. Dollar General asserts that Mississippi law requires the plaintiff to call an expert witness on retail store shoplifting procedures in order to establish that Dollar General’s training was inadequate and negligent. Dollar General cites M.R.E. 703 and Langston v. Kidder, 670 So.2d 1, 3 (Miss.1995). However, neither of these authorities establishes a rule that Gamble must produce expert witnesses to establish that Thornton did not receive training or that the lack of training was negligence.

¶ 31. Gamble has simply misstated her issue with regard to her claim for negligent training. Instead of claiming that Dollar General’s training was inadequate or negligent, Gamble’s claim is better understood as an allegation that Dollar General provided no training. Stated as an issue of no training, the jury could infer Dollar General’s negligence without the need of expert testimony on proper or adequate training. The jury could properly find that Dollar General was negligent in failing to provide training to Thornton.

¶ 32. There was also testimony that Thornton, a regional manager, was required to go to other stores to train employees in dealing with shoplifting. However, other than receiving a booklet, there was no evidence that showed that Thornton had received any training. Based on Dollar General’s failure to show any training provided to Thornton, other than handing her a manual, it was proper to allow the jury to consider the issue of negligence for Dollar General’s failure to train its employee. This issues is without merit.

V. DID THE TRIAL COURT ERR IN ALLOWING THE JURY TO CONSIDER THE ASSAULT CLAIM.

¶ 33. Dollar General asserts that there was no evidence to warrant a jury instruction on assault. Dollar General’s brief does not contain any meaningful arguments in support of this issue. Dollar General simply states that it does not believe the facts give rise to a claim for assault. The trial court stated that there was no question that there was an issue of assault in this case. Thornton’s act of following Gamble and impermissibly yanking Gamble’s underwear, to see if they were shoplifted, were sufficient facts to warrant a jury’s consideration as to the tort of assault. Therefore, this issue is without merit.

¶ 34. Dollar General also asserts that evidence regarding the wrongful detention issue and defamation issue were improperly presented to the jury. Dollar General does not make reference to any testimony that would support these assertions. Instructions as to these issues were not given to the jury, and based on a review of the record, no statements made to the jury would have led them to base their decision on the issues of wrongful detention and defamation.

PART II: Punitive Damages

DID THE TRIAL COURT ERR IN ALLOWING THE JURY TO CONSIDER THE ISSUE OF PUNITIVE DAMAGES.

¶ 35. Dollar General claims it was error for Gamble to receive a judgment for punitive damages. The jury only awarded punitive damages against Dollar General. Sheri Thornton did not have punitive damages assessed against her.

¶ 36. In the punitive damage context, Miss.Code Ann. § 11 — 1—65(l)(a) indicates a claimant must prove by “clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” (emphasis added). The trial court, when faced with the issue of punitive damages, looks at the totality of the circumstances to determine if a reasonable, hypothetical trier of fact could find either malice or gross ne-gleetyreckless disregard. Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss.1996). An abuse of discretion standard is implemented when this Court, reviews the trial court’s decision of whether a case warrants punitive damages to be sent to the trier of fact. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1351 (Miss.1998). The facts must be highly unusual as punitive damages are only awarded in extreme cases. Aqua-Culture Technologies, Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996); South Cent. Bell v. Epps, 509 So.2d 886, 892 (Miss.1987). There must be ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962). See also Fedders Corp. v. Boatright, 493 So.2d 301, 311 (Miss.1986).

¶37. Although we found that Dollar General failed to provide additional training to its employees, we acknowledge that it did provide Thornton a manual. Dollar General had a written shoplifting policy that stated that no employee should leave a store to go after a suspected shoplifter and no employee should ever touch a shoplifter. Of significant importance, the record reflects that Thornton had received the manual, yet ignored the policy. Thornton followed Gamble out of the- store, wrote down her tag number, then confronted and touched .her. Thornton testified that the store, policy was “in black and white, and I should have known it and should have followed it, and just didn’t. I mean, the policy is there in black and white for all the employees at Dollar General.” Once Gamble left the store, Thornton should have considered the incident to be concluded. Thornton admitted to not following store policy. However, she, in effect, ignored the policy and followed Gamble from the store on her own initiative. It is inconceivable that under the facts of this case, Dollar General was assessed punitive damages. These acts were done by Thornton alone, violating the store policy.

¶ 38. No proof was offered to the jury that demonstrated Dollar General had any knowledge of prior incidents committed by this employee. Clearly, punitive damages against Dollar General should .not have been allowed. Thornton was reprimanded for this mistake by Dollar General. More importantly, Dollar General had not received any other prior complaints or incidents ■' regarding Thornton’s alleged propensity for committing such acts as complained about here. Indeed, if such notice of prior complaints existed and Dollar General did not have a policy regarding shoplifting violations, then, and only then, would a punitive damages instruction have been warranted. The facts of this ease do not warrant a punitive damage assessment. While Dollar General may have been negligent in its training, its actions do no rise to the level of actual malice or gross negligence. Accordingly, this Court reverses and renders the $100,000 punitive damages assessed against Dollar General.

CONCLUSION

¶ 39: The trial court did not err in dismissing Gamble’s claims for fraud, bad faith and breach of fiduciary duties. All of Dollar General’s issues on cross-appeal are without merit with the exception of punitive damages. Therefore, to the extent that it awarded Gamble $100,000 in punitive damages against Dollar General, the trial court’s judgment is reversed and rendered. In all other respects, the trial court’s judgment is affirmed.

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

PARTI: AFFIRMED.

PITTMAN, C.J., McRAE, P.J., AND GRAVES, J., CONCUR AS TO PART I. SMITH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, COBB AND CARLSON, JJ. DIAZ, J., NOT PARTICIPATING.

PART II: REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR AS TO PART II. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Concurring in Part and Dissenting in Part.

¶ 41. I concur with the affirmance of the compensatory damage award; however, considering the law of this State dealing with punitive damages in conjunction with the law of vicarious liability, I respectfully dissent from the majority’s finding that the $100,000 punitive damages award should be overturned.

¶ 42. The trial court found that the actions of Dollar General’s employee, Thornton, did rise to the level of evincing a reckless disregard for the rights of the plaintiff. Additionally, the trial court stated that Dollar General’s lack of training its employees on handling sensitive interactions with the public can be considered a proper issue for the jury to determine. I believe that there was sufficient evidence to present a jury question as to whether the failure to train evinced a wanton and reckless disregard for the rights of Gamble. There was also sufficient evidence to present a jury question as to whether the offensive nature of Thornton’s conduct was outrageous enough to warrant an award for punitive damages. Punitive damages based on Thornton’s outrageous conduct would be properly imputed to Dollar General, as it is vicariously liable for the tor-tious actions of its employees. Fruchter v. Lynch Oil Co., 522 So.2d 195 (Miss.1988).

¶ 43. Dollar General argues that punitive damages are only available in cases where the actions are extreme, citing Central Bank of Mississippi v. Butler, 517 So.2d 507, 512 (Miss.1987). I agree with this statement, however, I consider it an extreme situation when an employee of a store follows a customer to the parking lot of another store and grabs that customer by the underwear with the erroneous belief that she has stolen goods from her employer.

¶ 44. Dollar General also argues that its generous settlement offer and offering of a full apology at trial shows that it did not engage in intentional or reckless conduct. While this seems like a kind gesture, it in no way changes what occurred before this suit was. brought.

¶ 45. On the instructions regarding assault and intentional infliction of emotional distress, a finding of punitive damages can be appropriately based on Dollar General’s vicarious liability for the tortious actions of its employee, Thornton. Fruchter, 522 So.2d at 195. Furthermore, as to the claim for negligence in failing to train,- a finding of punitive damages would also be appropriate.

¶ 46. The combined actions of Thornton and Dollar General clearly amounted to an extreme situation which displayed a wanton and reckless disregard for the rights of Gamble. Thornton was acting on the behalf of her employer during this conflict. Any punitive damages assessed to Thornton’s actions should undoubtedly have been imputed to her employer, Dollar General, under the law of vicarious liability. Based on the foregoing reasons, I respectfully dissent. I would affirm the submission of the issue of punitive damages to the jury, and I would also affirm the jury’s reasonable and proportionate assessment thereof.

GRAVES, J., JOINS THIS OPINION.

SMITH, Presiding Justice,

Concurring in Part and Dissenting in Part.

¶ 47. Having originally dissented on this issue, I applaud the majority’s decision on rehearing to reverse and render the award of punitive damages. ■ However, I write further to express my views regarding the application of controlling precedents of both our Court and the United States Supreme Court.

¶ 48. The case at bar in my view represents mere simple negligence by a single individual who made a mistake in not following written store policy. Thornton was reprimanded for this mistake by Dollar General. More importantly, Dollar General had not received any other prior complaints or incidents regarding Thornton’s alleged . propensity for committing such acts as complained about here. Indeed, if such notice of prior complaints existed and Dollar General did not have a policy or failed to provide any training to employees regarding shoplifting violations, then, and only then, would a punitive damages instruction have been warranted. Dollar General has over 40,000 employees, all of whom have been given a manual and expected to read it and adhere to a specific policy regarding how to handle a suspected shoplifter.

¶ 49. Punitive damages may only be awarded when a plaintiff offers clear and convincing evidence of actual malice, gross negligence which evidences a willful, wan- ■ ton or reckless disregard for the safety of others, or the commission of actual fraud. Miss.Code Ann. § 11-1-65(1) (Supp.2001). None exist in the case at bar. This Court has held that the totality of the circumstances must be examined when measuring conduct complained of in order to determine if the reasonable trier of fact could find malice, gross negligence or reckless disregard. Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1215 (Miss.2000). The facts must be highly unusual as punitive damages are only awarded in extreme cases. Aqua-Culture Technologies, Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996); South Cent. Bell v. Epps, 509 So.2d 886, 892 (Miss.1987). There must be ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962). See also Fedders Corp. v. Boatright, 493 So.2d 301, 311 (Miss.1986).

¶ 50. The United States Supreme Court has re-examined the issue of punitive damages in Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). The Court determined that the jury’s award of punitive damages is not a finding of fact, but rather is expression of moral condemnation, and thus de novo appellate review of that award is consistent with due process and does not impair the prevailing party’s right to a jury trial. The Court further held that the factors to be considered when addressing whether punitive damage award is grossly disproportional to the gravity of the offense, thus violative of due process, are: (1) degree of defendant’s reprehensibility or culpability; (2) relationship between penalty and harm to victim caused by defendant’s actions; and (3) sanctions imposed in other cases for comparable misconduct. 532 U.S. at 424, 121 S.Ct. 1678.

¶ 51. Returning to the case at bar and applying the Cooper Indus, factors to the facts previously mentioned above, there can be no doubt that this case is not a punitive damages case. Thornton’s conduct, though improper, unnecessary, and in violation of the store policy, does not fall in the category of cases demanding punitive damages. That said, we turn to punitive damages assessed against Dollar General. Dollar General had an established written policy that the employee violated. No proof of knowledge by Dollar General of prior incidents committed by this employee was offered to the jury. Dollar General reprimanded Thornton and apologized to Gamble. Worse yet, the jury only found against Dollar General in assessing punitive damages. Clearly, punitive damages against Dollar General should not have been allowed. In my view, the trial court erred in doing so. I agree with the majority in reversing and rendering on punitive damages.

¶ 52. I also agree with the majority’s affirming the trial court’s dismissal of Gamble’s claim for fraud as there is no legal support for Gamble’s civil claim concerning alleged misrepresentations occurring during discovery. Gamble’s sole recourse is set out in M.R.C.P. 37 to which she has not availed herself.

¶ 53. That said, I disagree with the majority’s affirmance of the compensatory award of $75,000 against both Dollar General and Sheri Thornton. I, therefore, dissent in part.

¶ 54. First, I disagree with the majority’s affirming the jury’s award of compensatory damages in the amount of $75,000 against both Sheri Thornton and Dollar General. It is my opinion, however, that Thornton’s conduct was in violation of the established, written, Standard Operating Procedure Manual (SOP), policy of Dollar General. This action was not only a serious mistake but, also demonstrates a lack of common sense. Here, fortunately, there was no physical injury, and while Gamble should recover some compensatory damages because she was clearly an innocent shopper who was wrongfully touched by Thornton, nevertheless she should not have been awarded $75,000. The verdict evidenced bias and prejudice by the jury.

¶ 55. It is obvious that the jury was allowed to hear voluminous evidence that should never have been heard due to the judge allowing several improper claims to proceed during Gamble’s case-in-chief. This evidence clearly prejudiced the jury. The majority finds no harm or error regarding these claims. I respectfully disagree, as there is no way other than granting a new trial to correct these errors.

¶ 56. Gamble suffered no physical injury, and her proof as to mental anguish is flimsy at best, certainly nothing which would warrant $75,000. She stated thát she had trouble sleeping, that her grades dropped slightly for one semester following the incident, and that she had recently (just prior to trial) begun suffering from headaches. As to the first two claims, it was elicited on cross-examination that she broke up with a boyfriend within a few months of the incident. Additionally, it was established that she had previously been treated for sleeplessness by a physician, whereas, after the incident at issue here she never was treated by a physician. Nor did she receive counseling or professional psychological help. No expert testimony supporting mental anguish was offered. As for the surprise headache testimony, it was error for the judge to allow this testimony at such a late date as she had not mentioned it during her deposition. No proof was offered to connect the recent headaches to the incident at bar.

¶ 57. It is true that “[i]f there is outrageous conduct, no injury is required for recovery for intentional infliction of emotional distress or mental anguish,” Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 742 (Miss.1999) (quoting Smith v. Malouf, 722 So.2d 490, 497-98 (Miss.1998)). This, however, does not mean that any plaintiff who gets on the stand and says I had trouble sleeping, and by the way, I now have headaches too, is entitled to damages for mental anguish. The standard has not dropped so low that the scant proof offered by Gamble warrants the damages awarded by this jury. This is particularly true when one considers the fact the jury was improperly allowed to hear substantial amount of prejudicial information which the trial court should never have allowed in the first place.

¶ 58. This Court has repeatedly held that minor, • subjective claims of insomnia and serious anxiety cannot establish an emotional distress claim. Adams, 744 So.2d at 743-44. In Strickland v. Rossini, 589 So.2d 1268, 1275-76 (Miss.1991), the Court again held that where the plaintiff was very depressed, upset and unable to sleep that such evidence was inadequate to sustain a proper claim for damages for emotional distress. Finally, in Morrison v. Means, 680 So.2d 803, 806 (Miss.1996), once again the Court held that an award for damages for mental anguish should be reversed where the plaintiffs claim was based on loss of sleep. In Morrison as well as the case at bar there was a lack of medical testimony to support claims for mental anguish.

¶ 59. Thus, it is clear that in order to properly establish mental anguish requires proof of deep emotional and psychological trauma. Summers, 759 So.2d at 1211-12. This Court has clearly reasoned that outlaw requires only in those cases where a plaintiff has suffered significant emotional harm would damages be warranted. This is true because “mental anguish is a nebulous concept requiring substantial proof for recovery.” Morrison v. Means, 680 So.2d at 805-06. Gamble failed to prove mental anguish. I would reverse and remand for a new trial on the sole issue of the wrongful improper touching occurring in the parking lot.

¶ 60. The jury’s verdict of compensatory damages against both Thornton and Dollar General, yet only assessing punitive damages against Dollar General is both astounding and contradictory. It defies reason, logic, and clearly evinces bias and prejudice on the part of the jury. In my view, several errors contributed to the excessive and improper verdict. First, the trial court erred in allowing the jury to consider negligent supervision by Dollar General. The court erred again in giving a criminal assault instruction and allowing counsel to repeatedly argue wrongful detention and defamation, when summary judgment had been sought pre-trial and denied. Finally, the jury should never have been allowed to consider punitive damages under the facts of this case.

¶ 61. Let us examine the plurality’s view that Dollar General failed to provide additional training to its employees, thus reasons the majority, negligent supervision applies. This phase has been renamed by the plurality as, “no training whatsoever.” Contrary to the plurality view, Dollar General had a very clear, concise, written policy included in its employee (SOP) manual which was given to every employee. Distributing a manual to employees and requiring them to read and abide by such manual is in fact, training. The policy stated, “DO NOT LEAVE THE STORE TO FOLLOW A SUSPECTED SHOPLIFTER AND DO NOT TOUCH ANYONE.” Thornton admitted that she had read and understood, yet ignored the policy in following Gamble out of the store, writing down her tag number, then confronting and touching her. Gamble and the majority argue that the policy was insufficient and more training was necessary. What is insufficient about the policy and what additional training was the jury told should be given? None. These statements are but broad allegations totally lacking in substance and proof. Gamble should have been required to offer expert testimony detailing what was insufficient, inadequate and negligent about Dollar General’s policy and training. Also, specifics should have been given about what additional training was necessary. See M.R.E. 703; Langston v. Kidder, 670 So.2d 1, 3 (Miss.1995). What expert witness qualified in the field of retail business shoplifting procedures testified? No one. The policy is clear, concise, and easily understood; thus no additional training is required. A third grader could understand the words DO NOT simply mean NO. Thornton admitted that she read and understood the policy. She further testified that she, “should have followed it, and I didn’t”; and that when Gamble left the store, “I should have considered it over.” Gamble thus failed to meet her burden of proof regarding what additional training Dollar General should have given its employees. In my view this error in allowing negligent supervision to be considered by the jury contributed significantly to the punitive damages award against Dollar General.

¶ 62. Next, we consider the trial court’s granting of Plaintiffs Jury Instruction 18, a criminal assault instruction which, in my view, further created bias and prejudice in the jury’s verdict. The jury was instructed, inter alia “assault is an attempt to do bodily harm to inflict injury on another,” “that Sheri Thornton attempted to do bodily harm or inflict injury on Heather Gamble.” First, the instruction misstates the law. Second, and more importantly, there was simply no evidence adduced at trial that Thornton attempted to do bodily harm or inflict injury upon Gamble. Concerning the confrontation in the parking lot, Gamble testified that she first initiated the encounter by asking why Thornton was following her. Thornton testified that she then asked Gamble to turn around and she would show Gamble. Thornton further testified that Gamble turned and that she took it as consent to touch the clothing to point it out. The record reflects that once Thornton grasped the bulge under Gamble’s shirt and saw that it was her personal undergarment and not shoplifted merchandise, she immediately retreated. Thornton stated that she apologized to Gamble. Gamble then began to shout loudly at Thornton. The trial court erred in granting this type criminal assault instruction based on absolutely no testimony in support thereof.

¶ 63. Gamble charged false arrest, wrongful detention and defamation/slander. The defendants unsuccessfully attempted to have the court grant summary judgment on these claims. Prior to trial, the trial court dismissed the false arrest claim, but allowed the wrongful detention claim to proceed. The defendants ultimately were granted a directed verdict on the wrongful detention claim. However, the damage was already done due to extensive prejudicial and irrelevant evidence placed before the jury during Gamble’s ease-in-chief. Additionally, the defamation/slander claims whereby Gamble, through numerous witnesses, offered testimony of supposed harm to her reputation and the resultant humiliation she suffered through publication of the incident clearly prejudiced the jury in spite of a directed verdict ultimately being granted. See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476 (3d Cir.1997) (evidence submitted on one claim can have an improper effect on another claim). It is undisputed that Thornton never uttered any words accusing Gamble of shoplifting even though Thornton thought that indeed shoplifting had occurred. Gamble assumed an accusation of shoplifting by Thornton due to Thornton’s “angry look on her face.” Nor was there any publication of the incident to a third party by Thornton or Dollar General. There were no other eyewitnesses to the incident, thus, only Gamble or Thornton knew what happened. The record reflects that Thornton did not publish the event to anyone other than to police who questioned her about it after Gamble reported the incident to the police department. It was solely Gamble and her family who publicized the incident to others. There was simply no way that Gamble could prove these claims in spite of numerous witnesses paraded before the jury. In fact, when the dust settled, no witness had testified of any harm to Gamble’s reputation. In my view, the result would have been vastly different had the jury only been allowed to consider the lone incident of Thornton wrongfully touching Gamble in the parking lot.

¶ 64. I respectfully concur as to the majority’s affirmance of the dismissal of Gamble’s fraud claim and its reversal and rendering of punitive damages, but dissent as to all other issues regarding compensatory damages. I would reverse the judgment for compensatory damages and remand this case for a new trial as to the liability and compensatory damages on the sole issue of the wrongful touching of Gamble in the parking lot.

WALLER, COBB AND CARLSON, JJ., JOIN THIS OPINION.


author: PITTMAN, Chief Justice,

text:
    John BOWEN v. DESOTO COUNTY BOARD OF SUPERVISORS.
    No. 2001-CT-00533-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2003.

      Keith Treadway, attorney for appellant.
    William A. Brown, Hernando, attorney for appellee.
   ON WRIT OF CERTIORARI

PITTMAN, Chief Justice,

for the Court:

¶ 1. On March 8, 2000, the DeSoto County Board of Supervisors denied John Bowen’s (Bowen) request for a conditional use permit under the county’s zoning ordinance. Bowen filed a notice of appeal with the circuit clerk on March 20, 2000, but did not file a bill of exceptions pursuant to Miss.Code Ann. § 11-51-75 (Rev.2002). The statute imposes a ten-day time frame for filing the appeal, but March 18th was on a Saturday and, thus, March 20th was timely. Based on the failure to file a bill of exceptions, the Board filed a motion to dismiss the appeal for lack of jurisdiction, which the circuit court granted. Bowen appealed, and the appeal was assigned to the Court of Appeals. A unanimous Court of Appeals reversed and remanded. Bowen v. DeSoto County Bd. of Supervisors, 850 So.2d 1156, 2002 WL 1167254 (Miss.Ct.App.2002). This Court granted certiorari to consider the requirements of a bill of exceptions and to clarify any ambiguity. In doing so, we affirm the judgment of the Court of Appeals.

ANALYSIS

¶ 2. Miss.Code Ann. § 11-51-75 states in part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

¶ 3. The main issues relating to this statute are whether a bill of exceptions is required and, if so, whether it must be filed within ten days. The Board argues that a bill is required and it must be filed within ten days. This Court has held that a bill of exceptions is required. McIntosh v. Amacker, 592 So.2d 525 (Miss.1991). See also Yandell v. Madison County, 79 Miss. 212, 30 So. 606 (1901). However, the second issue is not as clear. McIntosh and Yandell do not address the time period. The Board cites Newell v. Jones County, 731 So.2d 580 (Miss.1999), and City of Madison v. Shanks, 793 So.2d 576 (Miss.2000), in this argument and asserts that these two cases were incorrectly distinguished by the Court of Appeals. Neither of these cases directly address the issue of whether the bill of exceptions must be filed within ten days. In Newell, this Court said:

The statute’s ten (10) day time limit in which to appeal the decision of a Board is both mandatory and jurisdictional. Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990). Where an appeal is not perfected within the statutory time constraints no jurisdiction is conferred on the appellate court; and the untimely action should be dismissed.

731 So.2d at 582 (¶ 10). However, the Court of Appeals properly distinguished both Newell and Shanks. In Newell nothing, including a notice of appeal, was filed within the ten days. Here, the notice of appeal was filed and only the bill was lacking. Shanks involved the question. of whether a mayor’s veto is appealable and also did not speak to the issue of a timely filed bill of exceptions.

¶4. The Court of Appeals found that neither of those cases are contrary to the proposition of Bowling v. Madison County Board of Supervisors, 724 So.2d 431 (Miss.Ct.App.1998), that the actual filing of the bill of exceptions with the circuit court within ten days is not an absolute prerequisite to vest the court with jurisdiction as long as some formal pleading indicating an intention to appeal is filed within ten days. The Court of Appeals further found that although the bill of exceptions must ultimately be filed, it is not necessary to do so within ten days.

If the bill of exceptions is not the necessary document to commence the appeal, then its preparation may not be critical to meeting the jurisdictional time requirements. First, the bill of exceptions serves as the record. The record is not what in a normal appeal must be filed simultaneously with the notice of appeal. Secondly, since the bill of exceptions requires the signature of an official who personifies the governmental body whose actions are being condemned by the aggrieved party, delays in reaching agreement on the record can be expected. The critically short ten day time frame suggests that even slight delay may be procedurally fatal.

Bowling, 724 So.2d at 437 (¶ 27). The Court of Appeals expanded on this analogy that the bill of exceptions is merely the appellate record and not necessary to commence the appeal. We agree.

¶ 5. Bowen’s argument parallels that of the Court of Appeals. He cites Bowling, Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098 (Miss.1987), and Huey Stockstill, Inc. v. Hales, 730 So.2d 539 (Miss.1998), in his argument that a bill of exceptions need not be filed within ten days. ' Neither of the latter two directly assess the bill of exceptions issue though. In addition, a later case, Ladner v. Harrison County Board of Supervisors, 793 So.2d 637 (Miss.2001), reiterates that a bill of exceptions must be filed without addressing a time frame. The Board here argues that Bowling has been misapplied and that it can be distinguished because there a document in the nature of a bill of exceptions was filed in a timely manner.

¶ 6. Other cases, however, appear to be in conflict. In Moore v. Sanders, 569 So.2d 1148 (Miss.1990), this Court held that failure to file a bill of exceptions within ten days was a fatal flaw and the appeal was properly dismissed because the court had no jurisdiction. In Shannon Chair Co. v. City of Houston, 295 So.2d 753 (Miss.1974), this Court, noting that it has held that the only way to appeal an order from the board of supervisors or municipal authorities is by bill of exceptions, held that the bill must be filed within ten days.

Bills of exception, unknown to the common law, are founded wholly on the statutes and can only be made up in the manner, time and place provided by statute. Richmond v. Enochs, 109 Miss. 14, 67 So. 649 (1915). Furthermore, it has long been the law of this state that statutes limiting the time within which appeals may be taken are both mandatory and jurisdictional. An appeal not perfected within the time prescribed by statute confers no jurisdiction on the appellate court. Such an appeal should be dismissed either on the motion of the appellee or by the appellate court of its own motion. Turner v. Simmons, 99 Miss. 28, 54 So. 658 (1911).
Since the bill of exceptions in this case was not presented to the mayor within ten days after adjournment of the October 1971 meeting of the mayor and board of aldermen, the time for appeal had expired.... After the ten days had elapsed from the adjournment of the October 1971 meeting, there was no way that the appeal could then be perfected.

295 So.2d at 754, 755.

¶ 7. However, in Board of Supervisors of Marshall County v. Stephenson, 160 Miss. 372, 134 So. 142 (1930), this Court found that thirty days within which to file a bill of exceptions was not unreasonable where the parties agreed as to the filing of the bill. See also Cloverleaf Mall, Ltd. v. Conerly, 387 So.2d 736 (Miss.1980) (an order extending the ten-day period was proper). In Bowling, the Court of Appeals also addressed the rules versus the statutes aspect and said that statutory indications are that the “legislative branch does not wish that matters of form will terminate a court’s ability to consider the rights of parties. The appellate and civil trial rules indicate that the supreme court follows the same principle.” 724 So.2d at 442 (¶ 50).

¶ 8. The Board argues that the Court of Appeals failed to consider House v. Honea, 799 So.2d 882 (Miss.2001), for the proposition that the bill of exceptions must be filed within ten days. There is no mention of House in the Court of Appeals’ decision, but it can be distinguished because the bill of exceptions issue was not addressed separately. The issue there was whether the notice of appeal and the bill of exceptions were timely filed.

¶ 9. In the case sub judice, Bowen properly and timely filed a notice of appeal. We find that sufficient to vest jurisdiction. Further, the Court finds that the Court of Appeals’ decision to reverse the circuit court’s judgment and remand this matter for the circuit court to permit Bowen a reasonable time within which to file the bill of exceptions was proper. Therefore, the judgment of the Court of Appeals is affirmed.

¶ 10. COURT OF APPEALS’ JUDGMENT AFFIRMED.

McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


author: GRAVES, Justice, McRAE, Presiding Justice,

text:
    Katherine L. BUCHANAN v. AMERISTAR CASINO VICKSBURG, INC.
    No. 2002-CA-00529-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2003.
    David M. Sessums, Vicksburg, attorney for appellant.
    Herbert C. Ehrhardt, Brandon Michael Cordell, Jackson, attorneys for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. This appeal arises from a judgment of the Circuit Court of Warren County granting summary judgment in favor of Ameristar Casino Vicksburg, Inc., against Katherine L. Buchanan. Buchanan appeals and submits the following issues for review:

I. Whether the trial court erred in finding that Buchanan failed to show that a contractual relationship- of employer and employee existed between Ameristar Casino and her.
II. Whether the trial court erred in ruling that the only two exceptions to the employment at will doctrine in Mississippi are: (1) where the termination of the employee is due to refusal- to do an illegal act, or (2) where the termination of the employee is due to his exposure to an illegal act by the employer .or the employer’s agent.
III. Whether the trial court erred in declining to rule that the discharge of an employee solely in retaliation for the employee filing a workers’ compensation claim violates the public policy of the State of Mississippi and constitutes an independent tort.
IV. Whether the court erred in granting summary judgment.

FACTS

¶ 2. While employed with Ameristar, Buchanan was injured on the job and received workers’ compensation benefits. Buchanan received a letter dated January 12, 1998, informing her that she had been terminated from her employment at Amer-istar effective December 31, 1997. Buchanan filed a complaint on November 19, 1999, in the Circuit Court of Warren County alleging wrongful discharge. Ameristar filed a motion for summary judgment, and the circuit court granted the motion and later denied reconsideration of its ruling.

DISCUSSION

¶ 3. Because all four issues are interrelated, we will discuss them simultaneously. Although Buchanan presents four issues for this Court’s review, essentially, her argument is that the trial court erred in granting summary judgment because there was a genuine issue of material fact and she was improperly terminated for filing a workers’ compensation claim. We apply the following standard of review:

This Court has a well-established standard of review of a trial court’s grant of summary judgment: Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001).

¶ 4. Mississippi is an employment at-will state. The general rule of employment at will is that a contract for employment for an indefinite period may be terminated at the will of either party, whether the termination is for any reason or no reason at all. See McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 606 (Miss.1993). This Court addressed the issue of whether an employee has a cause of action for termination based upon retaliation for filing a workers’ compensation claim in Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.1981). In Kelly, this Court declined to adopt a public policy exception or to recognize a common law tort action against an employer by an employee who may have been discharged for filing a workers’ compensation claim. Id. at 877.

¶ 5. However, in McArn two exceptions to the general, employment at-will rale were carved out by this Court:

(1) an employee who refuses to participate in an illegal act ... shall not be barred by the common law rale of employment at will from bringing an action in tort for damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer.

626 So.2d. at 607.

¶ 6. Buchanan was an at-will employee with Ameristar prior to her termination. As evidenced by the record, she signed a “Certification and Agreement” form acknowledging that her employment was for an indefinite period. Buchanan also signed the “Acknowledgment” form in Am-eristar’s employee handbook which stated that it did not create a contract or guarantee continued employment. The “Employment Status Policy,” included in the Amer-istar employment manual, clearly states that regardless of the status of an employee, no contractual agreement expressed-or implied is created. Any assertion by Buchanan that she was a contract employee of Ameristar is belied by her own signature on forms which clearly define her status as an at-will employee.

¶ 7. Furthermore, Buchanan does not allege that she was terminated for refusing to participate in illegal acts at the request of Ameristar or that she was terminated for reporting illegal acts performed by Ameristar. Because Buchanan’s termination does not meet the requirements of the exceptions as set forth above, she is precluded by the employment at will doctrine from bringing an action for retaliatory discharge. We find that Buchanan has faded to establish a genuine issue of material fact which would allow her relief in this matter.

CONCLUSION

¶ 8. For these reasons, we find that the trial court did not err in granting summary judgment in favor of Ameristar, and we affirm the trial court’s judgment.

¶ 9. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

f 10. This is just another classic example of this Court’s refusal-to see the errors of its ways and overrule Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.1981). Here-again, we have an employee whose employment was terminated in retaliation for her filing of a workers’ compensation claim for work-related injuries. It is only logical that the company be held liable for such retaliatory conduct since both employees and employers are forced into a statutory contract by the Workers’ Compensation Act (Act). Miss.Code Ann. §§ 71-3-3, 71-3-5, & 71-3-9. Under the Act, employees give up their rights to sue employers for work-related injuries in exchange for the assurance that those injuries will be compensated by workers’ compensation benefits. Miss.Code Ann. §§ 71-3-5 & 71-3-9 (Rev.2000). However, this statutory contract does not contemplate the retaliatory firing of employees who choose, to pursue their right to recover for work-related injuries under the Act. For this reason, I dissent.

¶ 11. In Kelly, this Court had the opportunity to find that retaliatory firing as the result of an employee’s filing of a workers’ compensation claim was in fact an independent cause of action. 397 So.2d at 874. However, this Court chose to plod the straight and narrow and limit the rights of employees by finding that no independent cause of action exists under the Act. Therefore, the Court declined to create a judicial exception since it is more proper for the Legislature to carve out exceptions. Id. at 874-78.

¶ 12. Then in McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 604-06 (Miss.1993), this Court addressed whether an independent suit for wrongful termination could be maintained by an employee who claimed to have been terminated in retaliation to his reporting of unlawful conduct to his employer. This Court carved out two exceptions to the employment at will doctrine: “(1) an employee who refuses to participate in an illegal act [as in Laws v. Aetna Finance Co., 667 F.Supp. 342 (N.D.Miss.1987) ] shall not be barred by the common law rule of employment at will from bringing an action in tort for damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer.” 626 So.2d at 607.

¶ 13. No other exceptions have been provided by this Court, despite the obvious harsh effect of a retaliatory discharge for the filing of a workers’ compensation claim under the Act. By statutory contract, the employer agrees to submit itself to liability for work-related injuries under the Act, and the employee agrees to use the Act as his only remedy for work-related injuries. Miss.Code Ann. §§ 71-3-3, 71-3-5, & 71-3-9. It is contrary to the Act’s purposes of encouraging cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity, to force employees to forego the opportunity to pursue a private right of action for retaliatory termination Miss. Code Ann. § 71-3-5. Surely, when employees are forced by statute to give up their right to sue for work-related injuries, they should not also be expected to give up any right to private action for retaliatory termination due to their filing of a claim under the Act.

¶ 14. I would overrule Kelly, recognize a cause of action for retaliatory discharge, reverse the trial court’s judgment, and remand this case for a trial.

¶ 15. For these reasons, I dissent.

EASLEY, J., JOINS THIS OPINION.


author: THOMAS, J.,

text:
    Mary C. JORDAN, Appellant, v. PACE HEAD START and Mississippi Casualty Insurance Company, Appellees.
    No. 2001-WC-00608-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      Penny Jones Alexander, Petal, attorneys for appellant.
    John S. Gonzalez, Michael McHenry, Jackson, Shane Curtis Whitfield, attorneys for appellees.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. Mary Carolyn Jordan claimed that she made a timely notification of her work-related injury on August 2, 1995. Pace Head Start (Pace) and Mississippi Casualty Insurance Company (the carrier) contested this claim, stating that it was barred by the two year statute of limitations. On August 17, 1999, Judge Lydia Quarles ruled in favor of Pace and the carrier and dismissed the claim with prejudice. That order was later affirmed' by the Mississippi Workers’ Compensation Commission and by the Forrest County Circuit Court. Aggrieved, Jordan asserts the following error:

JORDAN’S MEDICAL BENEFITS FOR A WORK RELATED INJURY SHOULD HAVE CONTINUED FOR SUCH PERIOD OF TIME AS THE NATURE OF HER INJURY REQUIRED.

Finding no error, we affirm.

FACTS

¶ 2. Jordan is employed as a data entry clerk with Pace Head Start. Jordan claims that she notified Pace that she had sustained a work-related injury on August 2, 1995. Jordan has not missed work as a result of her injury. On September 8, 1995, Pace filed a B-3 report of injury with the carrier. Jordan began receiving medical treatment for her condition in 1995. On November 22, 1996, the carrier ended its coverage for Pace.

¶ 3. On February 17, 1999, Jordan filed a petition to controvert, or a MWCC Form B5-11, with the Mississippi Workers’ Compensation Commission against Pace and the carrier. Jordan claimed that she made a timely notification of her work-related injury on August 2, 1995. Pace and the carrier contested this claim, stating that it was barred by the two year statute of limitations. On August 17, 1999, Judge Lydia Quarles ruled in favor of Pace and the carrier and dismissed the claim with prejudice. That order was later affirmed by the Mississippi Workers’ Compensation Commission and by the Forrest County Circuit Court.

STANDARD OF REVIEW

¶ 4. When a decision of the Commission is based upon substantial evidence, an appellate court is bound by the Commission’s finding of fact. Harper v. North Mississippi Med. Ctr., 601 So.2d 395, 397 (Miss.1992). Further, this Court uses a de novo standard of review when passing on questions of law including statute of limitations issues. Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998).

ANALYSIS

¶ 5. The Mississippi Workers’ Compensation Act states that:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expenses) is made and no application for benefits filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefore shall be barred.

Miss.Gode Ann. § 71-3-35(1) (Rev.1995). It is clear that this two year statute runs from the time of injury and applies in instances where there has been no payment of disability income benefits or non-burial death benefits. Id. In the ease at hand there were no disability or death benefits paid. Therefore, the two year statute applies.

¶ 6. The ease at hand is very similar to Speed Mechanical Inc. v. Taylor, 342 So.2d 317 (Miss.1977). In Speed, the claimant sustained a work-related injury in May of 1971. Id. The employer provided medical benefits while the claimant lost no wages and filed to claim for indemnity or disability benefits. Id. On November 1, 1973, the claimant failed to file a claim for additional medical benefits. Id. Our supreme court found that this claim was barred by the two year statute of limitations, stating “it is without dispute that the employee did not receive as set forth in Sec. 71-3-35(1) within two years from the date of injury payment of compensation ‘other than medical’ treatment.” Id. at 319. The same holds true in the case at hand.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


author: CHANDLER, J.,

text:
    In the Matter of Joanne STINE, Appellant.
    No. 2001-CA-00121-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      Chester D. Nicholson, Gail D. Nicholson, Gulfport, attorney for appellant.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Joanne Stine seeks review of a Jackson County Chancery Court’s finding that Stine was in need of involuntary commitment for depression and alcoholism. We find that the issues presented in this appeal are moot; therefore, this appeal is dismissed.

FACTS

¶2. Joanne Stine, a resident of Ocean Springs, has worked as an X-ray technician at the Singing River Hospital for more than thirteen years. During her tenure with Singing River, Stine has maintained a good work record, despite the fact that she is an alcoholic.

¶ 3. On November 18, 2000, Terri Brewster, Stine’s friend and co-worker, filed an affidavit, seeking to have Stine committed. According to Brewster, Stine had become severely depressed over the recent death of her twenty-one month old son. Furthermore, Brewster believed that Stine’s alcoholism had taken control of her life to the extent that she could no longer provide adequate care to her nine year old daughter. Brewster stated that Stine had attempted to seek treatment by voluntarily committing herself in the past, but each time Stine would relapse; therefore, Brewster believed that involuntary commitment was the only way to save Stine and her daughter. After reviewing Brewster’s application for commitment, the chancery court accepted the affidavit and issued a writ for Stine’s custody.

¶ 4. Prior to the commitment hearing, the court appointed Dr. S.K. Pace and Dr. John Stoudenmire, both of the Singing River Hospital, to conduct a pre-evaluation screening. According to Dr. Pace, Stine suffered from depression which was complicated by a recurrence of alcohol abuse. He concluded that Stine’s best interests would be served by committing her for a fixed period of time. Dr. Stoudenmire also concluded that Stine should be committed, noting that without immediate treatment, her depression would surely worsen. Upon viewing these reports, the court ordered an immediate hearing, appointing an attorney to represent Stine.

¶ 5. During the hearing, both Terri Brewster and Dr. Pace testified that Stine needed to be committed. Stine also testified, noting that she was receiving treatment for her depression and alcoholism at the time Brewster sought to have her committed. Stine conceded that she had a drinking problem; however, she felt her problem could be remedied through outpatient treatment rather than involuntary commitment.

¶ 6. On November 21, 2000, the court concluded that Stine was in need of inpatient treatment. However, instead of committing her, the court put Stine on the waiting list for the State Hospital. The court concluded that Stine could seek private treatment as long as the chosen physician kept the court updated on her condition and progress.

¶ 7. Oral argument was held on December 5, 2000. Stine, now represented by private counsel, moved to have the court vacate its earlier order finding that Stine was mentally ill and in need of involuntary treatment. However, the court noted that the order sought to be vacated had been modified, permitting Stine to seek voluntary, outpatient treatment, rather than involuntary civil commitment. The trial court dismissed Stine’s motion to vacate. The court also ordered another hearing when it became known that Stine had violated her private physician’s orders by purchasing alcohol.

¶ 8. The hearing was held on December 12, 2000. During the hearing, Dr. Roy Deal, Stine’s physician, testified that he seriously questioned Stine’s ability to function safely on an outpatient basis. Likewise, two of Stine’s co-workers testified that she had a serious drinking problem and was in need of help. In support of Stine, Dr. Stefan Massong, a clinical psychologist, concluded that Stine had progressed to the point that she no longer needed to be involuntarily committed. After considering all of the clinical reports and testimony, the court modified its earlier ruling, concluding that Stine was no longer required to seek outpatient treatment. On February 27, 2001, the court dismissed the case without prejudice.

LAW AND ANALYSIS

¶ 9. Despite the court’s dismissal of this action through the order dated February 27, 2001, Stine appeals, arguing that the stigma brought about by the involuntary commitment order caused her great harm; therefore, the adjudication should not be permitted to stand. In support of this argument, Stine argues that the commitment hearing was constitutionally flawed as she was given no notice of the November 21, 2000 hearing. Additionally, Stine contends that the trial court applied the wrong standard of proof when adjudicating her mentally ill and, even had the right standard been applied, the evidence did not support the court’s findings.

¶ 10. Without addressing the merits of Stine’s argument, we conclude that the issue before us is moot. Stine appeals from the order handed down on November 21, 2000. This order was modified, and the case against Stine eventually dismissed by the order dated February 27, 2001. As such, there is no longer a controversy in respect to Stine’s involuntary commitment. See Pickle v. State, 791 So.2d 204, 207 (¶ 15) (Miss.2001) (stating that “[t]he doctrine of mootness applies to cases where an actual controversy no longer exists”). See also Foster v. Foster, 788 So.2d 779, 784 (¶ 9) (Miss.Ct.App.2000).

¶ 11. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ., CONCUR.