author: IRVING, J., GRIFFIS, J.,

text:
    SOUTHERN WIN-DOR, INC., Appellant v. RLI INSURANCE COMPANY, Appellee.
    No. 2004-CA-01595-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2005.
    Rehearing Denied Feb. 7, 2006.
    Certiorari Denied April 6, 2006.

      William C. Hammack, Michael Wayne Strahan, Meridian, attorneys for appellant.
    Russell S. Gill, Marilyn Hattie David, Biloxi, attorneys for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. RLI Insurance Co. (RLI) issued a security bond for a construction project undertaken by Green Construction Co., Inc. (Green). In connection with the construction, Southern Win-Dor, Inc. (Southern) delivered materials to Green that Southern alleges Green never paid for. Southern entered into litigation with Green in 2000; after Green declared bankruptcy in 2003, Southern attempted to substitute RLI for Green in its lawsuit. The trial court dismissed the action against RLI because the applicable statute of limitations had run.

¶,2. Feeling aggrieved, Southern appeals, asserting: (1) the statute of limitations should not apply because RLI was joined in an amended complaint that should relate back to the original March 2000 complaint; and (2) even if there is no relation back, RLI should be estopped from asserting the statute of limitations as a defense because RLI misled Southern.

¶ 3. Finding no error in the decision below, we affirm.

FACTS

¶ 4. On May 20,1998, RLI issued a bond in connection with a construction project by Green, under which RLI and Green agreed to bind themselves to pay for the labor, materials, and equipment related to the project. Southern had a contract with Green to supply materials for the construetion contract. In December 1999, Green filed a complaint for breach of contract against Southern. On March 7, 2000, Southern filed a counterclaim against Green. Southern also filed a proof of claim with RLI under RLI’s payment bond. RLI responded on March 10, 2000, by denying the claim pending the outcome of Southern’s litigation with Green.

¶ 5. During the litigation between Southern and Green, Green failed to produce court-ordered discovery, and its pleadings were struck in January 2002 as a result. In December 2002, the trial court set aside its order striking Green’s pleadings. In March 2003, Green filed for bankruptcy. On January 12, 2004, the trial court entered an order allowing Southern to substitute RLI for Green, and Southern filed an amended counterclaim with the substitution on February 20, 2004. RLI filed a motion to dismiss on March 19, 2004, on the grounds that it had not been made a party to the suit within one year after the performance and settlement of the construction contract as required by statute. In July 2004, the court granted RLI’s motion to dismiss with prejudice, finding that Southern’s claim against RLI was barred by the time limitation set out in Mississippi Code Annotated section 31-5-53 (Rev. 2000). Southern now appeals the dismissal of its claim against RLI.

STANDARD OF REVIEW

¶ 6. This court conducts challenges to a trial court’s rulings of law, including statute of limitations issues, under a de novo standard of review. ABC Mfg. Corp. v. Doyle, 749 So.2d 43(¶ 10) (Miss.1999) cting Ellis v. Anderson fully Co., 727 So.2d 716(¶ 14) (Miss.1998)).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. As a preliminary matter, it is undisputed that Southern’s claim against RLI is barred by the statute of limitations unless we find either that its claim properly relates back or that RLI is barred from raising the statute of limitations by the principle of equitable estoppel.

(1) Relation Back

¶ 8. Southern first asks this court to find that its claim properly relates back under Mississippi Rules of Civil Procedure 15(c) (Relation Back of Amendments), which states:

Whenever the claim ... arose out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment: (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

M.R'.C.P. 15(c) (emphasis added).

Southern argues that its amendment relates back because Southern was mistaken in relying on the express representations of RLI. Southern admits that it was not mistaken as to the identity of any party to the suit. Unfortunately for Southern, mistaken reliance is not a substitute for the M.R.C.P. requirement that a party be mistaken as to the identity of another party to the suit. Therefore, Southern’s argument for relation back is without merit because there is no evidence, or even a contention by Southern, that it was mistaken as to the identity of any party to its suit. Thus, the only possible remedy left to Southern is equitable estoppel.

(2) Equitable Estoppel and the Statute of Limitations

¶ 9. One of the first Mississippi cases to apply the doctrine of equitable estoppel to a statute of limitations held that:

when a defendant electing to set up the statute of limitations has previously, by deception or any violation of duty towards plaintiff, caused him to subject his claims to the statutory bar, he must be charged with having wrongfully obtained an advantage which the court will not allow him to hold. Thus defendant will be estopped to set up the statute of limitations in bar of plaintiffs claim when the delay which would otherwise give operation to the statute has been induced by the promise or representation that the statutory bar would not be interposed, or by inducing plaintiff to believe that an amicable adjustment of the claim will be made without suit, or by other forbearance to sue induced by defendant....

Izard v. Mikell, 173 Miss. 770, 163 So. 498, 499 (1935). Southern cites Izard and urges us to find that equitable estoppel should be applied in its case as a result.

¶ 10. However, the case sub judice can be factually distinguished from Izard. In Izard, the court found that estoppel applied to allow a foreclosure sale, even though the statute of limitations had passed, where the debtor had promised to renew his promissory note after the statutory deadline had passed as long as the plaintiff did not foreclose on the property. Id. at 771-72, 163 So. at 499-500. In this case, unlike in Izard, there was no promise by RLI sufficient to have induced Southern not to timely sue. The March 10, 2000 letter from RLI merely stated that RLI was denying Southern’s claim preemptively, pending the outcome of the litigation between Green and Southern. There was no promise that RLI would pay Southern’s claim. In fact, RLI explicitly retained “all rights and defenses”—including the right to assert a statute of limitations defense. There is no evidence that RLI promised Southern that it would be able to sue RLI after the statute of limitations had run. Nothing in the correspondence between RLI and Southern indicates that RLI was requesting that suit not be filed. Once Southern received the March 10 letter from RLI, it could have sued RLI to recover on the claim; nothing in the letter from RLI to Southern indicates that RLI was opposed to this remedy.

¶ 11. Additionally, under Mississippi law, a party is required to show inequitable or fraudulent conduct in order to estop another party from asserting a statute of limitations defense. Miss. Dep’t of Pub. Safety v. Stringer, 748 So.2d 662, 665(¶ 11) (Miss.1999) (citing Carr v. Town of Shubuta, 733 So.2d 261, 265(¶ 12) (Miss.1999)). Southern has failed to meet this requirement. While RLI could have better handled Southern’s claim, no evidence has been presented showing that RLI’s conduct was inequitable or fraudulent. While it is true that Stringer can be distinguished from the case sub judice because there was no representation in Stringer that expressly conditioned final determination of the plaintiffs claim on the outcome of another litigation, Southern still must show inequitable or fraudulent conduct. For the following reasons, Southern has failed to show either of these and thus is barred from invoking equitable estoppel against RLI.

¶ 12. Southern has presented no evidence that RLI intended to defraud Southern with its March 10 letter, which stated only that Southern’s claim was preemptively rejected, pending the outcome of the suit between Green and Southern. Although Southern intimates that the delays in its suit with Green were possibly part of a conspiracy between Green and RLI to defraud Southern, this appears to be mere speculation on the part of Southern, since it presents no evidence to substantiate its accusation. Southern also has not offered any evidence showing inequitable conduct by RLI; after RLI’s letter, there is no evidence of any communication between Southern and RLI until Southern attempted to substitute RLI for Green in its lawsuit. Since Southern has shown neither inequitable nor fraudulent conduct, RLI is not estopped from raising the statute of limitations as a bar to suit.

CONCLUSION

¶ 13. The pleadings and evidence produced by the parties strongly indicate that Southern genuinely believed from RLI’s letter that Southern should have withheld pursuing its claim until after the lawsuit with Green. Unfortunately, Southern has not provided any sound legal basis for a ruling in its favor. There was no “mistake” as to the identity of RLI/ Green in the original counterclaim, so the amended counterclaim cannot relate back to the original counterclaim. Equitable estoppel should only be applied against the statute of limitations in the most egregious of eases, because

[t]he primary purpose of statutory time limitations is to compel the exercise of a right of ■ action within a reasonable time.... They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time. Accordingly, the fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case. The establishment of these time boundaries is a legislative prerogative.

Cole v. State, 608 So.2d 1313, 1317-18 (Miss.1992) (cited in Stringer as support for why equitable estoppel should be applied sparingly to any statute of limitations. Stringer, 748 So.2d at (¶ 13)). Southern has failed to show conduct by RLI sufficient to justify estopping RLI from invoking the statute of limitations as a defense. Since we find that Southern’s amended claim does not properly relate back and RLI is not estopped from shielding itself with the statute of limitations, the judgment below dismissing Southern’s claim must be affirmed.

¶ 14. The dissent argues that we do not appreciate the significance of RLI’s response to Southern that Southern’s claim was denied pending the outcome of Southern’s litigation against Green. Quite the contrary, we do appreciate the significance of RLI’s response in this regard. We just believe that we must consider the entirety of what RLI said in its March 10 letter. Even if RLI, by use of the term “pending,” was indicating that it was deferring decision on Southern’s claim until the litigation between Southern and Green had concluded, it also, by use of the statement, “[we] make no waivers and reserves all rights and defenses”, was indicating and placing Southern on notice that any claim Southern had against it would become time barred if the litigation between Southern and Green had not concluded prior to the running of the statute of limitations on any claim Southern might have against RLI. Otherwise, the statement: “RLI Insurance Company makes no waivers and reserves all rights and defenses” becomes meaningless.

¶ 15. For the reasons discussed, we affirm the judgment of the court below.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY DISMISSING APPELLANT’S CLAIM IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., MYERS, BARNES AND ISHEE, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J., AND CHANDLER, J.

GRIFFIS, J.,

CONCURRING IN PART, DISSENTING IN PART:

¶ 17. I concur with the majority on issue 1 and dissent as to issue 2. I am of the opinion that RLI is estopped from asserting the benefit of the one year statute of limitations pursuant to Mississippi Code Annotated Section 31-5-53 (Supp. 2004). I would reverse and remand for further proceedings.

¶ 18. The majority and I consider the same legal principle. We simply disagree on the interpretation and the result. In Izard v. Mikell, 173 Miss. 770, 163 So. 498, 499 (Miss.1935), the Mississippi Supreme Court held:

[T]he prevailing rule is that the doctrine of equitable estoppel may, in a proper case, be invoked to prevent defendant from relying upon the statute of limitations, it being laid down as a general principle that, when a defendant electing to set up the statute of limitations has previously, by deception or any violation of duty towards plaintiff, caused him to subject his claims to the statutory bar, he must be charged with having wrongfully obtained an advantage which the court will not allow him to hold. Thus defendant will be estopped to set up the statute of limitations in bar of plaintiff’s claim when the delay which would otherwise give operation to the statute has been induced by the promise or representation that the statutory bar would not be interposed, or by inducing plaintiff to believe that an amicable adjustment of the claim ivill be made without suit, or by other forbearance to sue induced by defendant, or by defendant’s husband as her agent,

(emphasis added). The majority looks to the portion of this language that refers to a promise made. I, on the other hand, look at whether there was “any violation of duty towards plaintiff,” and then whether RLI induced Southern to “believe that an amicable adjustment of the claim will be made without suit.” Id. I find the facts of this case squarely within Izard.

¶ 19. The proper analysis begins with whether RLI violated a duty toward Southern. To do so, we must look at the relevant terms of the Payment Bond, i.e., the contract under which Southern claims it is owed payment. The terms of the Payment Bond, between Green Construction, Inc., as Contractor, and RLI Insurance Company, as Surety, provided:

3. With respect to Claimants [Southern], this obligation shall be null and void if Contractor [Green] promptly makes payment directly or indirectly, for all sums due.
4. The Surety [RLI] shall have no obligation to Claimants under this Bond until:
4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim.
6. When the Claimant _ satisfied the conditions of Paragraph 4, the Surety_promptly and at the Surety’s expense take the following actions:
6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed.
6.2 Pay or arrange payment of any undisputed amounts.
11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction....

¶ 20. The Contractor, Green, commenced the instant litigation by filing its complaint against Southern on December 13, 1999. Green claimed that Southern breached its contract and asked for an award of compensatory damages of at least $200,000 and punitive damages.

¶ 21. The material supplier, Southern, believed that it was owed money by Green. Indeed, by letter dated February 22, 2000, RLI acknowledged receipt of Southern’s claim documents and requested a completed proof of claim form. On February 29, 2000, Southern executed RLI’s proof of claim form and delivered it to RLI.

¶22. At this point, Southern had met its obligation under paragraph 4.1 of the Payment Bond. Submission of the proof of claim form then shifted the obligation to RLI, under paragraph 6, to either:

6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed.
6.2 Pay or arrange payment of any undisputed amounts.

(emphasis added). Thus, RLI owed a contractual duty to Southern to respond in one of three ways. First, RLI could simply pay the entire claim. Second, RLI could deny the entire claim and provide Southern with an “answer” that states the “basis for challenging any amounts that are disputed.” The third alternative would have been for RLI to acknowledge that a portion of the claim was disputed and a portion was undisputed. If so, RLI was required to pay any undisputed amounts and provide Southern with an “answer” that státes the “basis for challenging any amounts that are disputed.” The record is clear that RLI failed to meet its obligation and duty under paragraph 6. It did not respond to Southern in any of these three ways.

¶ 28. On March 7, 2000, before receiving the “answer” required under paragraph 6, Southern filed its counterclaim asking for $53,553.32 for materials delivered.

¶ 24. RLI’s “answer” was communicated to Southern by letter dated March 10, 2000. RLI’s letter read:

RLI Insurance Company received your proof of claim form and the accompanying documents. We have also received a response from Green Construction, Inc. in relation to the claim.
As you are aware, there is a lawsuit against your company in the Circuit Court of Green (sic) County, Mississippi by Green Construction, Inc. for damages. Pending the outcome of this litigation against you your claim is denied by the Surety.
RLI Insurance Company makes no waivers and reserves all rights and defenses.

(emphasis added).

¶ 25. The first paragraph of this letter clearly indicates that Southern met its contractual obligation under paragraph 4 of the Payment Bond.

¶ 26. The second paragraph appears to be RLI’s “answer,” which was required by paragraph 6 of the Payment Bond. However, RLI does not respond in an appropriate manner as contemplated by paragraph 6. Instead, in the first sentence of this paragraph, RLI acknowledged the existing dispute and identified the lawsuit filed by Green, the Contractor, against Southern, the material supplier. The second sentence is the only portion of the letter that could possibly be considered as an “answer.” RLI’s “answer” was that:

Pending the outcome of this litigation against you your claim is denied by the Surety.

Undoubtedly, RLI’s “answer” is confusing. The majority seems to dismiss or ignore this language. I cannot! Instead, I am convinced that the outcome of this case is determined by the interpretation of this statement by RLI.

¶ 27. This language is certainly not the “answer” contemplated by paragraph 6 of the Payment Bond. It is not very well written. It does not clearly communicate that Southern’s claim is denied in full. If it did so, there would be no need for the inclusion of “[pjending the outcome of this litigation.”

¶ 28. The third paragraph says that RLI “makes no waivers and reserves all rights and defenses.” The majority concludes that this language retained the right to assert a statute of limitations defense. In my opinion, RLI’s second and third paragraphs are in direct conflict with each other.

¶ 29. When I consider the sequence of events, I have a better understanding of exactly what RLI said in its March 10, 2000 letter. When this letter was written, there were two claims before the court. First, Green sued Southern and demanded $200,000 plus punitive damages. Next, Southern counterclaimed against Green and demanded $53,553.32. Under the terms of the Payment Bond, specifically paragraph 3, RLI would owe nothing to Southern if Green prevailed in the lawsuit. Paragraph 3 provides that “this obligation [the Payment Bond] shall be null and void if Contractor promptly makes payment directly or indirectly, for all sums due.” Thus, RLI had a legitimate reason and a contractual basis to want to wait to allow Green and Southern to resolve their dispute through the Mississippi courts.

¶ 30- The majority distinguishes this case from Izard finding “there was no promise by RLI sufficient to have induced Southern not to timely sue.” I disagree. RLI’s March 10th letter clearly failed to comply with its contractual duty in paragraph 6 of the Payment Bond. In the letter, RLI neither unequivocally denied Southern’s claim nor did RLI provide Southern with an “answer” that states the “basis for challenging any amounts that are disputed.” There is no doubt that Southern had met its duty under the Payment Bond, by submitting the proof of claim required by paragraph 4, and RLI had a duty to Southern to either pay or deny Southern’s claim. If it denied the claim, RLI owed a duty to Southern to provide Southern with an “answer” that states the “basis for challenging any amounts that are disputed.” I am of the opinion that RLI’s March 10th letter informed Southern that RLI would assert its contractual right, under paragraph 3, to determine whether any sums were owed by Green to Southern. The use of the term “pending” clearly indicates that RLI’s adjustment of the claim remains open and will be decided later. Thus, RLI expressly deferred its duty, under paragraph 6, to provide Southern with an answer on its claim until such time as the pending litigation between Green and Southern was decided.

¶ 31. These facts fall squarely under the doctrine of equitable estoppel defined in Izard. RLI may not assert statute of limitations as a defense where RLI has violated a duty to Southern that caused Southern to “subject his claims to the statutory bar.” The doctrine of equitable es-toppel will not allow RLI to “wrongfully” obtain an advantage “by inducing [Southern] to believe that an amicable adjustment of the claim will be made without suit.” Southern has clearly met the requirements of this doctrine. RLI seeks to obtain an advantage, wrongfully in my opinion, through its March 10th letter that indicated that Southern’s claim would be adjusted after the Green versus Southern litigation was resolved.

¶ 32. The majority interprets the March 10th letter to be a preemptive denial of Southern’s claim. They reason “[t]here was no promise that RLI would pay Southern’s claim.” Conversely, there was no explicit and unequivocal denial of the claim. The majority cannot, and does not, claim that RLI complied with its contractual duty under paragraph 6 of the Payment Bond. Instead, all we have is the vague and ambiguous wording that ties RLI’s decision on Southern’s claim to the pending litigation.

¶ 33. The majority also concludes that Southern “could have sued RLI to recover on the claim; nothing in the letter from RLI to Southern indicates that RLI was opposed to this remedy.” RLI’s ' own words belie this conclusion. Indeed, RLI’s own communication ties the “answer,” required under paragraph 6, to the resolution of the “pending litigation.”

¶ 34. The only reasonable interpretation of RLI’s language “[pjending the outcome of this litigation against you your claim is denied by the Surety” is that RLI deferred its review of and decision on Southern’s claim until the Green versus Southern lawsuit was resolved. The only problem was that when Green subsequently declared bankruptcy, federal bankruptcy law prohibited the “pending ... litigation” from being completed between the original parties. Instead, at that point, RLI became a necessary party and should have been properly joined. The doctrine of equitable estoppel prevents RLI from claiming that the statute of limitations now bars Southern’s claim for payment.

¶ 35. The majority seems to place great emphasis on the language in the third paragraph of the March 10th letter, that RLI “makes no waivers and reserves all rights and defenses.” I fail to see how this general statement can override the inference created by the second paragraph that RLI would consider Southern’s claim pending the outcome of the Green versus Southern litigation. Every contract contains an inherent duty of good faith and fair dealing. Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). “Good faith is the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Id. In Cothern v. Vickers, 759 So.2d 1241, 1248(¶ 17) (Miss.2000), the court determined that the covenant requires that “neither party will do anything which injures the right of the other to receive the benefits of the agreement.” The covenant not only imposes a duty not to prevent or hinder the other party’s performance, but may impose a duty “to take some affirmative steps to cooperate in achieving these goals.” Cenac, 609 So.2d at 1272. At a minimum, the covenant of good faith and fair dealing demands that RLI not be allowed to now claim that the statute of limitations bars Southern’s recovery after it violated its duty under paragraph 6 of the Payment Bond and expressly stated that RLI’s consideration would be pending the outcome of the present litigation.

¶ 36. For these reasons, I respectfully dissent from the majority’s decision. I would reverse and remand this case for further proceedings before the Circuit Court of Greene County, Mississippi.

BRIDGES, P.J., AND CHANDLER, J., JOIN THIS SEPARATE OPINION.

      . The letter read: "RLI Insurance Company received your proof of claim form and the accompanying documents. We have also received a response from Green Construction, Inc. in relation to the claim. As you are aware, there is a lawsuit against your company in the Circuit Court of Green [sic] County, Mississippi by Green Construction, Inc. for damages. Pending the outcome of this litigation against you your claim is denied by the Surety. RLI Insurance Company makes no waivers and reserves all rights and defenses.”

      . The exact wording of this paragraph is not discernable from the record. The copies of the Payment Bond, which are contained in the record, either have holes punched through this language or this language is blank on the copies. Despite this omission, we are able to understand that the wording contained in this paragraph established the duties of the Surety once the Claimant has submitted a notice of claim.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Chris DUKE, on Behalf of Laura J. Fuller DUKE, Deceased, Appellant v. PARKER HANNIFIN CORPORATION, Employer and Underwriters Safety & Claims, Inc., Appellees.
    No. 2004-WC-01952-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2005.
    Rehearing Denied March 21, 2006.

      Kenneth H. Coghlan, attorney for appellant.
    B. Humphreys Mcgee, III, Marjorie T. O’Donnell, Oxford, attorneys for appellees.
    Before LEE, P.J., GRIFFIS, and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Chris Duke (Duke) appeals the decision of the circuit court which affirmed the Workers’ Compensation Commission’s denial of a claim for a death benefit under the Mississippi Workers’ Compensation Act. Finding error, we reverse and remand with instructions to send the cause back to the Mississippi Workers’ Compensation Commission for a determination of benefits.

STATEMENT OF FACTS

¶ 2. At approximately 7:00 a.m. on April 3, 2001, Laura Duke (decedent) arrived for work at her employer, Parker Hannifin Corporation (Parker Hannifin). The decedent held a salaried position as the Manufacturing Information Systems (MIS) Manager. The decedent was specifically responsible for all the communications, including the computer systems, networks, telephone systems, fax machines, and copy machines at Parker Hannifin’s plant.

¶ 3. Shortly after the decedent arrived at work that morning, she was notified that the plant was being evacuated due to a fire caused by a leaking hydrogen storage tank. The decedent was instructed to leave the immediate area and to call her supervisor later that morning for further instructions as to when to return to the facility. While hourly workers were released for the day due to the emergency, salaried workers, including the decedent, were not released from work.

¶ 4. After being notified of the evacuation, the decedent entered the facility to put a message on the voice mail system informing callers of the plant closure. No one at the facility requested that the decedent change the message on the voice mail system. The decedent then drove to Roger Smith’s home office, which was approximately five miles from the plant. Smith was an independent contractor who occasionally provided computer consulting services to Parker Hannifin. The administrative law judge at the Workers’ Compensation Commission determined that it was unclear from the record as to the specific reason the decedent chose to travel to Smith’s home office during the evacuation. Although there was some indication that Smith performed some work on the decedent’s lap top computer while at Smith’s home office, the administrative law judge concluded that the work was incidental to the fact that the decedent chose to go to Smith’s home office.

¶ 5. At approximately 9:30 a.m., the decedent spoke by telephone with a plant manager who informed her that she was to return to the plant. The decedent left Smith’s home, but was involved in a fatal, one vehicle accident, and was pronounced dead at the scene at 9:42 a.m. The accident report reflects that the decedent lost control of her vehicle in a rainstorm, and as a result, her vehicle left the highway and struck a tree.

¶ 6. In September 2001, Duke filed a petition to controvert alleging that the decedent’s death was compensable and that he was entitled to death benefits pursuant to the Mississippi Workers’ Compensation Act. A hearing was conducted, and in March 2003, the administrative law judge determined that the decedent’s death was not compensable. On October 20, 2003, the Commission adopted the administrative law judge’s findings of fact in their entirety and affirmed the judge’s order. Duke then timely filed a notice of appeal in the Circuit Court of the Second Judicial District of Panola County on October 28, 2003.

¶ 7. In June 2004, Parker Hannifin filed a motion to dismiss for failure to prosecute. Parker Hannifin argued that the claim should be dismissed because Duke had failed to file a brief within forty days of filing a notice of appeal as required by M.R.A.P. 31(d). Duke answered that a brief had not been filed due to a misunderstanding on the part of the parties’ respective attorneys that the matter would not be heard until settlement negotiations were exhausted. Duke argued that dismissal was at the court’s discretion and that the cause should not be dismissed as Parker Hannifin had suffered no prejudice as a result of the delay.

¶ 8. The circuit court subsequently denied Parker Hannifin’s motion to dismiss. In September 2004, the circuit court ruled that the Commission’s findings and final order were supported by substantial evidence. The circuit court affirmed the Commission’s order denying compensation under the Worker’s Compensation Act. Aggrieved, Duke appeals to this Court arguing that the circuit court erred in affirming the Commission’s order.

DISCUSSION

¶ 9. Duke maintains that the circuit court erroneously affirmed the Commission’s order denying benefits under the Workers’ Compensation Act. Duke asserts that the decedent was unquestionably covered by the Workers’ Compensation Act at the time of her death. Duke maintains that the following facts support a finding of compensability: the decedent arrived at work the morning of her death, and although she was told to evacuate, she was not released from work; the decedent was empowered to perform her duties as MIS manager in her own way, including the authority to travel to Smith’s home office at her discretion; the decedent traveled to Smith’s home office for the purpose of downloading a computer program to the Parker Hannifin-owned computer.

¶ 10. Duke asserts that the decedent was within the period of her employment, at a place where she would reasonably be in the performance of her duties, while fulfilling her duties, and furthering the business of her employer. See Jefferson v. T.L. James & Co., 420 F.2d 322, 324 (5th Cir.1969). Furthermore, Duke argues that the decedent’s death qualifies for compensation under the emergency exception for safeguarding an employer’s property. See Miller Transporters, Inc. v. Seay’s Dependents, 350 So.2d 689, 691 (Miss.1977). In support of this position, Duke argues that the decedent was killed while returning to the facility with the Parker Hannifin-owned computer backup tapes, laptop computer, and a fireproof safe. Duke asserts that the data contained on the backup tapes was vital to Parker Han-nifin’s operations and Parker Hannifin had a great deal of interest in their safety. Duke maintains that the claim should have been paid because injuries sustained by an employee in an attempt to save an employer’s property arises out of and in the course of employment. See Ingram’s Dependents v. Hyster Sales & Serv., Inc., 231 So.2d 500, 503 (Miss.1970).

¶ 11. The appellate court’s function when reviewing an appeal from a Commission ruling is to determine “whether there exists a quantum of credible evidence which supports the decision of the Commission.” Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). This Court’s scope of review is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of facts in deciding compensation cases; therefore, its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where issues of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶ 8); Hale, 687 So.2d at 1225.

¶ 12. We note that the Commission concluded, based on the record facts, that the decedent did not fit any of the exceptions to the so-called “going and coming rule.” The Mississippi Supreme Court has expressed the general “going and coming” rule as follows: “hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable.” Miller Transporters, Inc., 350 So.2d at 691. The Mississippi Supreme Court, however, has established the following specific exceptions to the general “going and coming rule”:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; or (7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer in an emergency situation.

Wallace v. Copiah County Lumber Co., 223 Miss. 90, 98-99, 77 So.2d 316, 317-18 (1955); Miller Transporters, 350 So.2d at 691. Finally, we emphasize that the Mississippi Supreme Court has placed the burden of proof on the employee when he asserts that an exception applies. Id.

¶ 13. The Commission determined that the decedent did not satisfy any of the aforementioned exceptions based on the following record facts: the decedent was driving her own vehicle, and Parker Han-nifin did not provide transportation for her to and from work neither on the day of her death, nor on any other date; Parker Han-nifin did not compensate the decedent for her transportation expenses related to work; the accident did not occur on Parker Hannifin’s premises; although the decedent was killed in a rainstorm, her death was not due to any hazard or condition inherently dangerous to the interstate highway; Parker Hannifin did not furnish a dangerous route to the decedent; it was the decedent’s decision as to where to go during the evacuation and which route to travel; the decedent’s death occurred neither in the Parker Hannifin’s parking lot, nor in close proximity to the Parker Han-nifin’s facility. Finally, addressing exception (8) above, the Commission found that when the facility was evacuated, Parker Hannifin was accommodating the decedent. Parker Hannifin accommodated all of its employees by closing the facility and losing production time to ensure their employees’ safety. Furthermore, the Commission was not persuaded by Duke’s argument that the decedent was on a special mission from Parker Hannifin. The Commission found that, although there was proof that Smith performed some work on the decedent’s computer, the work was merely incidental to the decedent’s presence at Smith’s home and was not performed at Parker Hannifin’s direction.

¶ 14. Based on a thorough review of the record, we find that the evidence does not support the Commission’s finding. At the accident scene, it was discovered that the decedent had been in possession of some computer backup tapes and a laptop computer. Mark Huelse, formerly the decedent’s direct supervisor, testified that the decedent was responsible for backing up Parker Hannifin’s computers and that how she performed that duty was left to her discretion. Huelse further testified that, on a prior occasion, he instructed the decedent to “obtain all of the vital information that she could,” including the tapes and the laptop computer, in the event of a plant evacuation. James Thompson, who instructed the decedent to evacuate, testified that the decedent was not released from work. Moreover, the computer program downloaded at Smith’s home office was downloaded to a company-owned laptop.

¶ 15. Duke asserts that these facts demonstrate that the decedent was on a special mission or errand for Parker Han-nifin at the time of her death. We agree. The record supports the conclusion that the decedent was within the period of her employment, at a place where she would reasonably be in the performance of her duties, while fulfilling her duties, and furthering the business of her employer. See Jefferson, 420 F.2d at 324. Moreover, even though it was not established that the decedent took the backup tapes from the plant on the morning in question, it is clear that she was in possession of those tapes and the computer when the accident occurred. It is further clear from the record that the decedent was not released from work and that she was responsible for safeguarding the information, on the tapes and the computer. It is the long-standing rule of this Court that doubtful cases must be resolved in favor of compensation, so as to fulfill the beneficent purposes of the statute. Marshall Durbin Companies v. Warren, 633 So.2d 1006, 1010 (Miss.1994). Therefore, we find that there was not substantial evidence to support the Commission’s conclusion that the tragic circumstances surrounding the decedent’s death did not fit any of the exceptions to the “going and coming” rule. Consequently, we reverse the judgment of the circuit court and remand with instructions to send the cause back to the Mississippi Worker’s Compensation Commission for a determination of benefits.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF PANOLA COUNTY IS REVERSED AND REMANDED WITH INSTRUCTIONS TO SEND THE CAUSE BACK TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR A DETERMINATION OF BENEFITS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR.


author: IRVING, J.,

text:
    Michelle SMITH, Appellant v. MAGNOLIA LADY, INC. d/b/a Lady Luck Rhythm & Blues Casino-Hotel, Appellee.
    No. 2004-CA-02112-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.

      Caiios Eugene Moore, Grenada, A.E. (Rusty) Harlow, attorneys for appellant.
    Charles E. Webster, Clarksdale, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Michelle Smith sued her former employer, Magnolia Lady, Inc. (Magnolia Lady), alleging malicious prosecution, wrongful discharge, false imprisonment, defamation, and injurious falsehood. After discovery, Magnolia Lady filed a motion for summary judgment, which the trial court granted. The motion covered all of Smith’s claims except injurious falsehood. The trial court denied a separate motion for summary judgment on the injurious falsehood claim, but later dismissed that claim as well. Smith appeals, asserting that the trial court erred in granting summary judgment and in dismissing the injurious falsehood claim.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Smith had been working for Magnolia Lady as a manager at the Lady Luck Casino in Coahoma County for around three months when her employment was terminated. On December 20, 1997, Smith was training another employee to become a manager, when the trainee set down an unmarked stack of one hundred dollar bills, worth ten thousand dollars. Video surveillance footage clearly showed Smith picking up the bills and placing them underneath plastic bags on a cart.

¶ 4. The cart with the money eventually made it to another part of the casino, where it was discovered. Smith and her co-workers were called, and bookkeeping entries were made to reflect the discovery of the misplaced money. The cart was visible on video surveillance from the time that Smith placed the money on the cart, to the time that the stack of bills was discovered. As explanation, Smith claims that she forgot about the ten thousand dollars after placing it on the cart. During her deposition, Smith was unable to provide any explanation as to why she placed the money on the cart.

¶ 5. Magnolia Lady told Smith to come in for her next scheduled work time as usual. Magnolia Lady also contacted the Coahoma County Sheriffs Department, so that law enforcement could conduct its own investigation into the incident. When Smith arrived for her next shift, she was taken into a room and questioned by casino security and the sheriffs department. Thereafter, Magnolia Lady terminated Smith’s employment, and the district attorney initiated prosecution against Smith for embezzlement of the money. At the close of the State’s case in the criminal trial, the judge granted a motion for directed verdict in favor of Smith. After her acquittal, Smith filed suit against Magnolia Lady, asserting the previously-mentioned claims.

¶ 6. Additional facts will be related as necessary in the analysis section of this opinion.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Summary Judgment

¶ 7. When reviewing the grant of a motion for summary judgment, we look at the trial court’s decision de novo. Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So.2d 169, 174 (¶ 9) (Miss.2005) (quoting Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1163 (¶ 6) (Miss.2004)). In conducting our review, we look at “all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Id. (citations omitted). We look at the evidence “in the light most favorable to the party against whom the motion for summary judgment has been made,” here Smith. Id. at 175 (¶ 9) (citations omitted). If our review uncovers any genuine issue of material fact, the decision of the lower court must be reversed. Id. (quoting Mabus v. Saint James Episcopal Church, 884 So.2d 747, 756 (¶ 17) (Miss.2004)). However, Smith must provide “significant probative evidence showing that there are indeed genuine issues of material fact” in order to prevail. Id. (quoting Murphree v. Fed. Ins. Co., 707 So.2d 523, 529 (Miss.1997)).

¶ 8. Smith contends that the court erred in granting summary judgment to Magnolia Lady, and argues that genuine issues of material fact exist as to each of her claims. Therefore, we will address each of Smith’s claims separately.

Wrongful Discharge

¶ 9. Smith’s basis for this argument is that she believed that after she had worked at Magnolia Lady for ninety days she would become a permanent employee. Therefore, she contends, since she was terminated after working more than ninety days, she was wrongfully discharged. Smith argues specifically that her status as a “permanent hire” was a factual determination that should have gone to a jury. Smith contends that Magnolia Lady failed to follow “certain steps outlined in the Employee Handbook” before firing her.

¶ 10. Our review of the employee handbook refutes Smith’s contention that Magnolia Lady failed to follow the required steps before terminating her. The lengthy list of activities that team members are prohibited from doing includes “[ujnautho-rized possession, use or removal of property belonging to [Magnolia Lady]” and “[dishonesty or failure to follow cash handling procedures.” Smith’s conduct that led to her termination was prohibited by both of these rules. The handbook clearly states:

Management has the right to determine whether particular conduct which may not be described in these rules or in the team member handbook, is not in the best interest of the Lady Luck or its operations and therefore warrants disciplinary action or termination. Management has the sole right to determine the type and sequence of discipline, if any. In addition, whether the particular conduct contravenes any of these rules will be determined solely by management, whose decisions or judgements on the foregoing matters are final and binding,

(emphasis added). The handbook provides a step-by-step process for contesting a termination, but the first step is that “[a] team member has forty-eight hours to notify the Director of Human Resources of his/her grievance.” There is nothing in the record to reflect that Smith ever took this required step to begin a contest of her termination. In the absence of action by Smith, Magnolia Lady was free to discipline her as outlined in the handbook. Therefore, upon the record before us, Magnolia Lady did not fail to follow the proper steps before terminating Smith.

¶ 11. Additionally, we note that Smith was undoubtedly an at-will employee, and therefore, terminable at any time for any reason. Smith’s application for employment, which she signed and dated, contains the following:

I hereby understand and agree that my employment, both during and after any introduction period is at unit, and that nothing in this application or any other company document shall be deemed to create any contract or employment between me and the company and that my employment can be terminated at any time by myself or the company for any or no cause. I understand that my employment beyond the introductory period shall not result in any heightened expectation of continued employment. I understand and agree that any statements to the contrary, whether oral or written, are expressly disavowed and are not to be relied upon by me....

The above passage, in contrast to most of the application, is underlined to provide emphasis. The instructions at the top of the page instruct the applicant to “read carefully before signing.” The first page of the employee handbook reiterated: “The employment and compensation of any team member can be terminated at any time at the option of the company or the team member with or without cause or notice.” Several sections of the handbook contained the disclaimer: “The company reserves the right to terminate employment at will.”

¶ 12. Given the undisputed at-will nature of Smith’s employment, and the fact that Magnolia Lady did not fail to follow any required steps before terminating Smith’s employment, we find that Smith has failed to show that there is any genuine issue of material fact on this issue. Therefore, summary judgment was properly granted on this claim.

Malicious Prosecution

¶ 13. In Mississippi, there are six elements that a plaintiff must prove, by a preponderance of the evidence, in order to prevail on a claim of malicious prosecution:

(1.) The institution or continuation of original judicial proceedings, either criminal or civil;
(2.) by, or at the insistence of the defendants;
(3.) the termination of such proceeding in plaintiffs favor;
(4.) malice in instituting the proceedings;
(5.) want of probable cause for the proceedings; and
(6.) the suffering of damages as a result of the action or prosecution complained of.

Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 891 (¶ 8) (Miss.1998) (citations omitted).

¶ 14. Smith contends that “charges were filed by law enforcement against [her] at the insistence of the defendant.” We find that the record does not support this claim. Magnolia Lady admitted that they called the sheriffs department to conduct an investigation into the incident, but the arresting officer testified in his deposition that “I made the arrest. I mean, it’s my decision to make the arrest.” The affidavit supporting Smith’s arrest was signed by the arresting officer, not by an employee of Magnolia Lady. Additionally, the assistant district attorney who prosecuted Smith’s criminal case submitted an affidavit stating:

To the best of my recollection, once the file was turned over to the district attorney’s office, neither casino personnel nor the sheriffs office were asked for further input except to the extent that either of [sic] both may have been called to testify before the grand jury.... Although we, as prosecutors, often rely upon input from victims of crime, as Lady Luck appeared to be in this case, I have no recollection of ever discussing this case with employees of the casino other than to make them aware of whatever plea offers we may have made....

The above excerpts directly refute Smith’s claim that her arrest and prosecution were conducted at the “insistence” of Magnolia Lady. No evidence appears in the record to support her assertion that her prosecution occurred “by, or at the insistence of,” Magnolia Lady.

¶ 15. Even if Smith had proved that criminal proceedings were instituted against her at Magnolia Lady’s insistence, we find that the record is devoid of any evidence indicating that Magnolia Lady lacked probable cause, another element of malicious prosecution. The videotape clearly showed Smith taking ten thousand unmarked dollars and concealing them on a cart that was then rolled out of the room. Smith was able to provide no explanation whatsoever for these suspicious actions, and she herself admitted during her deposition that it was “reasonable” for Magnolia Lady to suspect her of “attempting to steal that money” after viewing the tape.

¶ 16. Since Smith has been unable to show any genuine issue of material fact concerning at least two elements of her claim of malicious prosecution, we find that the court’s grant of summary judgment as to this claim was proper.

False Imprisonment

¶ 17. There are two elements that a plaintiff must prove in order to succeed on a false imprisonment claim: “(1) the detention of the plaintiff; and (2) the unlawfulness of such detention.” Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (¶ 28) (Miss.2001) (citing Wallace v. Thornton, 672 So.2d 724, 727 (Miss.1996); Thornhill v. Wilson, 504 So.2d 1205, 1208 (Miss.1987)). The Mississippi Supreme Court has explained that the second element is determined by looking at “whether, ‘looking at the totality of the circumstances, the actions of the Defendant were objectively reasonable in their nature, purpose, extent and duration.’ ” Id. (quoting Wallace, 672 So.2d at 727).

¶ 18. During her deposition, Smith testified that she had gone with Magnolia Lady employees to an office for questioning. She testified that she was there “[a]n hour and forty-five minutes, something like that.” When asked whether she was “on the boat and ... wanted to leave and ... [was] not permitted to do so,” Smith responded that “I didn’t think I could just walk out of there. There was a police officer there with a gun on his hip.” When asked if anyone had told her specifically that she could not leave, Smith responded: “No, but I sure wasn’t getting up.” Smith also testified that she did not tell anyone that she wanted to leave or wanted to stop answering questions. Smith further testified that no one threatened her physically or ever told her that she could not leave.

¶ 19. Smith’s testimony leaves serious doubt as to whether she was truly detained, since she never attempted to leave or even asked to do so. However, even assuming the evidence is sufficient to show her detention, there is no evidence that her detention was unlawful. Magnolia Lady and the sheriffs department were clearly reasonable in wanting to question Smith, given her suspicious actions on the video footage. As we have already found, probable cause existed for the investigation of Smith’s actions. Smith herself admitted that it was reasonable for the casino to suspect foul play after watching the first part of the videotape. Regardless of the fact that the cash never left the casino, and was eventually recovered by Magnolia Lady, Smith’s transfer of ten thousand dollars to a location that she herself testified that the money should not have been was suspicious enough to make her questioning reasonable. Therefore, we find that no genuine issue of material fact exists with regard to Smith’s false imprisonment claim, and the grant of summary judgment dismissing that claim was proper.

Defamation

¶ 20. In order to succeed on a claim of defamation, a plaintiff must prove: “(1) a false and defamatory statement concerning plaintiff; (2) unprivileged publication to [a] third party; (3) fault amounting at least to negligence on [the] part of [the] publisher; and (4) either actionability of statement irrespective of special harm or existence of special harm caused by publication.” Armistead v. Minor, 815 So.2d 1189, 1193 (¶ 7) (Miss.2002) quoting (Franklin v. Thompson, 722 So.2d 688, 692 (¶ 12) (Miss.1998)). “The threshold question in a defamation suit is whether the published statements are false.” Franklin, 722 So.2d at 692 (¶ 13) (citations omitted). A statement is defamatory when it “tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community.” Id. (quoting Fulton v. Miss. Publishers Corp., 498 So.2d 1215, 1217 (Miss.1986)). “Truth is [a] complete defense to libel or slander.” Id. at 692(¶ 14) (citing Daniels by Glass v. Wal-Mart Stores, Inc., 634 So.2d 88, 92 (Miss.1993)).

¶ 21. Smith maintains that Magnolia Lady defamed her by publishing false statements to the Illinois Unemployment Commission and to “several of Plaintiffs former co-workers.” Smith contends that her deposition testimony was undisputed and shows that “genuine issues of material fact exist even to this day.”

¶ 22. As regards the Illinois Unemployment Commission, after reviewing the record, there is no evidence that a false statement was given to the commission. The letter sent to Smith stated: “The claimant was discharged from LADY LUCK CASINO because OF LARGE SUMS OF MONEY MISSING. Since the reason for which the claimant was discharged constituted a violation of a known and reasonable company rule, the claimant ivas discharged for misconduct connected with the work. Therefore, the claimant is ineligible for benefits.... ” The letter makes it clear that the commission had been informed that Smith was terminated for money that had gone missing, and that the conduct constituted a violation of company policy. The statements above are undoubtedly true: Smith did cause money to go missing, if only temporarily, and her actions in misplacing a stack of ten thousand dollars certainly constituted “misconduct connected with the work.” Therefore, since no false statement was made to the commission, no defamation could arise as a result of Magnolia Lady’s statements to the commission.

¶ 23. As to the statements that were allegedly made to former co-workers, the only proof of such statements was Smith’s testimony that she had been told by several of her former co-workers that they were brought into a meeting with management where they were informed that Smith had been terminated for theft. Despite asserting that she had talked to several people who said this, Smith did not present affidavits or depositions for any of them. One former co-worker, Linda Bunch, submitted an unsworn statement stating:

I did not attend and have no knowledge of any meeting ... regarding the allegations of theft on the part of Michelle or Shellie Smith. To the best of my recollection, I never advised Michelle or Shel-lie Smith regarding any such meeting. The only knowledge I had regarding the allegations against Shellie came as a result of rumors at the casino told me by other cashiers, not by anyone in management of the casino.

During her deposition, Smith presented numerous theories that Magnolia Lady had told third parties about the incident, but when asked for evidence of these communications, she testified: “I have no proof.” Since Smith was unable to present any proof other than her own statements of conjecture and suspicion that Magnolia Lady had defamed her, summary judgment was properly granted on this claim.

2. Motion to Dismiss

¶24. In her final suggestion of error, Smith argues that the court erred in granting Magnolia Lady’s motion to dismiss, because the court had already denied a motion for summary judgment on the same claim. Magnolia Lady attempts to distinguish between the two motions, and argues that their distinct nature means that the court did not err in granting the second motion. While we find no merit to Magnolia Lady’s argument that the court’s decision was proper because the motions were somehow distinct, we find that no harm was caused to Smith by the grant of the motion to dismiss because the claim should have been dismissed during summary judgment, as we will further explain below.

¶ 25. Magnolia Lady argues that the claim should fail because Mississippi does not recognize the tort of injurious falsehood. While we agree that Mississippi has not yet recognized the tort of injurious falsehood, we note that it is a common law tort, and is also known as “trade libel,” “commercial disparagement,” and “slander of title.” See State ex rel. Diehl v. Kintz, 162 S.W.3d 152, 156 n. 4 (Mo.Ct.App.2005) (citing Cuba’s United Ready Mix, Inc. v. Bock Concrete Foundations, Inc., 785 S.W.2d 649, 651 (Mo.Ct.App.1990)); Wagner v. Fleming, 189 S.W.3d 295, 301-02 (Tenn.Ct.App.2004) (citations omitted). While Mississippi has not recognized a tort of injurious falsehood, slander of title is an accepted tort in this state. Therefore, this Court is not prepared to say that a claimant may not successfully assert a claim of injurious falsehood in Mississippi.

¶ 26. However, even if Mississippi recognized the tort of injurious falsehood, it is clear that Smith did not succeed in presenting a genuine issue of material fact concerning her injurious falsehood claim. A commonly accepted element of injurious falsehood is that of economic or pecuniary damages; as one court put it, “[injurious falsehood] is closely related to traditional libel and slander except that the injury is not to personal reputation, but rather to the plaintiffs interest in, or the quality of, the plaintiffs property.” State v. Ross, 163 S.W.3d 922, 928-29 (Mo.2005); Whetstone Candy Co. v. Nat’l Consumers League, 360 F.Supp.2d 77, 81-82 (D.D.C.2004) (citations omitted). See also Smart, Inc. v. V.I. Hous. Auth., 320 F.Supp.2d 332, 340 (D.Vi.2004); Falic v. Legg Mason, 347 F.Supp.2d 1260, 1268 (S.D.Fla.2004).

¶ 27. Smith was completely unable to show any proof of economic damages. Like defamation, the tort of injurious falsehood requires that a statement be false. See Ross, 163 S.W.3d at 928; Zdenek Marek v. Old Navy, Inc., 348 F.Supp.2d 275, 281 (S.D.N.Y.2004) (quoting Waste Distillation Tech., Inc. v. Blasland & Bouck Eng’rs, P.C., 136 A.D.2d 633, 634, 523 N.Y.S.2d 875 (1988)); Smart, 320 F.Supp.2d at 340; Whetstone Candy, 360 F.Supp.2d at 81-82. Since, as previously discussed, no false statement was made to the Illinois Unemployment Commission, the denial of Smith’s unemployment benefits is not sufficient to show a genuine issue of material fact concerning her claim for injurious falsehood. Beyond the denial of her unemployment benefits, Smith provided no proof whatsoever that she had suffered economic damages. Smith’s primary offer of proof was her assertion that she has been unable to find work in the casino industry since the incident. However, during her deposition, she admitted that she has no proof that any-damaging statements were made to potential employers by Magnolia Lady.

¶ 28. Since there was no genuine issue of material fact concerning Smith’s economic damages and the publication of the statement, summary judgment should have been granted on the injurious falsehood claim. That the court incorrectly denied Magnolia Lady’s motion for summary judgment on the claim does not make the claim sufficient to proceed to trial. Since the court should have dismissed the claim at summary judgment, no injury arose to Smith when the court did so at a later date. Therefore, we find no merit in Smith’s second and final suggestion of error.

¶29. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS, J. CONCURS IN PART AND IN RESULT.

      . The security manager for Magnolia Lady testified in his deposition that Magnolia Lady did not ask the sheriff’s department to prosecute Smith, but simply "turned it over and told him to go ahead and investigate this. He said he was going to handle it.”

      . Smith did submit one affidavit with her motion for reconsideration after the court had already granted summary judgment on her defamation claim. Since the motion for reconsideration was filed untimely and properly dismissed by the court, the affidavit has no impact on Smith’s defamation claim. Even if the affidavit had been timely submitted, the affiant states only that she "believes” the statement transmitted to her had a negative impact on Smith’s employability in the casino industry. Since an affiant’s belief is not enough to create a genuine issue of material fact without further proof, this affidavit would not be sufficient to overcome summary judgment even if it had been timely submitted to the court.


author: KING, C.J.,

text:
    Carolyn Ann GRICE, Appellant v. FEDEX GROUND PACKAGE SYSTEM, INC., Rick Rutland, Dean Garland and Sedrick Richardson, Appellees.
    No. 2005-CA-00029-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.

      Ron L. Woodruff, Jim Waide, Tupelo, attorneys for appellant.
    Craig Alan Cowart, James R. Mulroy, attorneys for appellees.
   KING, C.J.,

for the Court.

¶ 1. Aggrieved by the trial court’s grant of summary judgment, Carolyn Ann Grice appeals and asserts the following assignments of error:

1. The circuit court erred in granting summary judgment to appellees on appellant’s claim of malicious interference with contract.
2. The circuit court erred in granting summary judgment to appellees on appellant’s claim of defamation, although amended complaint did not specifically set forth a cause of action for defamation.
3.The circuit court erred in granting summary judgment to appellees on appellant’s claim of intentional infliction of emotional distress.

STATEMENT OF FACTS

¶ 2. Grice was an independent contractor who delivered packages for Federal Express. On February 21, 2001, Grice submitted a thirty day notice that she was going to terminate her contract. During the first week of March 2001, Grice went to Dr. McKinney complaining that she had been suffering from fever and a dry cough. Dr. McKinney advised Grice she had signs of tuberculosis and should not return to work until after she received a chest x-ray and consulted a lung specialist. Grice telephoned her supervisor, Dean Garland, and informed him that she would be unable to come to work for a couple of days because she might have tuberculosis. Garland then informed her that he would have someone cover her route. Subsequently, Grice had an appointment with Dr. Chase, a lung specialist, and the county health department. Although Grice tested positive for tuberculosis at the health department, Dr. Chase informed her that she had asthma and bronchitis, not tuberculosis.

¶ 3. On March 9, 2001, Grice submitted a second resignation letter in which she stated that she was changing the date of her resignation to March 12. Grice’s reason for the earlier resignation was a claim that she had not been allowed back in the building after reporting that she may have tuberculosis and that she had received a threatening phone call from another employee advising her not to return to work.

¶ 4. On September 7, 2001, Grice filed a complaint against Federal Express and three of its employees alleging assault, defamation, tortious breach of contract, gross negligence, and intentional infliction of emotional distress. The trial court dismissed Grice’s breach of contract claim for submission to arbitration and dismissed with prejudice Grice’s assault claim. Grice then filed an amended complaint alleging malicious interference with employment relations against three Federal Express employees, intentional infliction of emotional distress against all defendants, and breach of contract against Federal Express, even though the trial court previously dismissed this claim for submission to arbitration. Federal Express moved for summary judgment, which was granted on December 17, 2004. No written opinion accompanies Judge Funderburk’s order granting summary judgment.

ISSUES AND ANALYSIS

¶ 5. The grant or denial of summary judgment is reviewed de novo. Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). The burden is on the movant to demonstrate that no genuine issue of material fact exists. Id. This Court examines all evidentiary matters before it, and views the evidence in the light most favorable to the party against whom the motion was made. Grammar v. Dollar, 911 So.2d 619, 622 (Miss.Ct.App.2005) (citing McMillan v. Rodriguez, 823 So.2d 1173, 1177(¶ 9) (Miss.2002)). We will discuss each claim separately to determine whether any of Grice’s claims should have survived summary judgment.

1. Intentional interference with contract

¶ 6. The elements of the tort of intentional interference with contract are: (1) intentional and willful acts, (2) calculated to cause damage to the plaintiff in his lawful business, (3) 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) resulting in actual damage or loss. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48(¶8) (Miss.1998) (citing Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992)). “[T]he plaintiff must prove that the contract would have been performed but for the alleged interference.” Id. Further, “[this] tort only arises if there is interference with the contract between plaintiff and some third party.” Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 328 (Miss.1992).

¶ 7. Even assuming that a genuine issue of material fact existed as to the first two elements of the tort, the same cannot be said of the third element of the tort, as applied to Garland and Rutland. “[0]ne occupying a position of responsibility on behalf of another is privileged, within the scope of that responsibility and absent bad faith, to interfere with his principal’s contractual relationship with a third person.” Morrison v. Mississippi Enterprise For Technology, Inc., 798 So.2d 567, 574 (Miss.Ct.App.2001) (quoting Shaw v. Burchfield, 481 So.2d 247, 255 (Miss.1985)). This privilege is not an exception, rather it “is merely a specific example of having ‘right or justifiable cause’ to interfere with the relationship.” Id. At the time of the alleged events in question, Garland, Rutland, and Richardson were managers at Federal Express. As such they occupied positions of responsibility on behalf of Federal Express. The question then becomes whether the managers were acting within the scope of their responsibilities and without bad faith when they allegedly committed acts which interfered with the Grice-Federal Express contract.

¶ 8. Grice claims that Garland and Rut-land refused to let her enter the terminal on March 9, 2001, so that she could pick up her paycheck. Grice further contends that since she was not allowed to enter the terminal, there was no way that she could carry out the remainder of her contractual duties. Grice produced affidavits from three former Federal Express contractors who witnessed Garland prevent Grice from entering the building to retrieve her paycheck. However, one affiant stated, “[Garland] locked the doors to the sort area and told us not to let [Grice] in because he ivas afraid that she would be contagious.” Nevertheless, Grice attempts to prove that Garland was acting in bad faith with a claim that Dr. Chase faxed a letter “to FedEx” on March 7, 2001, stating that Grice did not have tuberculosis and was safe to return to work. To support this assertion, Grice submitted an unsworn, hearsay statement from Dr. Chase, dated three years after the fact, which stated, “I did give Mrs. Grice a note that it was ok to return to work.” The letter is silent as to any communication with Grice’s employer. Grice also submitted an affidavit from a nurse in Dr. Chase’s office which stated, “[0]ur office faxed a letter to FedEx, stating that [ ] Grice could return to work and that she did not have TB. However, we do not have a copy of that letter or the confirmation for the fax.” The same nurse submitted a second affidavit in which she effectively retracted her earlier statements by admitting that she had no personal knowledge that a fax was sent to Federal Express from Dr. Chase’s office. Accordingly, Grice failed to raise a genuine issue of material fact that Garland acted in bad faith. As to Grice’s claim that Rutland was involved in locking her out of the building on March 9, 2001, thus interfering with her contract, Grice submits nothing more than a bare assertion that Rutland was involved in the incident. Therefore, summary judgment in favor of Garland and Rutland on the issue of intentional interference with contract was proper.

¶ 9. As to Richardson’s alleged interference with Grice’s contract, Grice testified that Richardson called her at home to check the status of her health, and when she stated that she planned to return to work, he expressed concern that she could infect him, and ultimately infect his baby at home, and told her that it would not be in her best interest to return to work. Specifically, Grice testified that Richardson threatened her by telling her that if she came to work sick she would “come up missing.” During his deposition, Richardson recalled calling Grice at home to inquire about the status of her health. He stated that he did remember expressing concern to Grice that she may infect his baby with tuberculosis if she came to work infected. However, Richardson denied discouraging Grice from returning to work or making any threat to Grice that she would “come up missing” if she returned to work.

¶ 10. “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.” Gorman-Rupp Co. v. Hall, 908 So.2d 749, 753-54 (Miss.2005) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). Since Grice claimed that Richardson’s threat was one of the reasons she could not return to work and fulfill the remainder of her contract, while Richardson denied making any such threat, a genuine issue of material fact existed. If accepted as true, Grice’s testimony would have established that Richardson was acting outside the scope of his employment and with a lack of good faith. Therefore, the trial court erred in granting summary judgment in favor of Richardson on Grice’s claim of intentional interference with contract.

2. Defamation

¶ 11. “When analyzing defamation claims, Mississippi courts employ a bifurcated process. First, the Court must determine whether the occasion called for a qualified privilege. If a qualified privilege does exist, the Court must then determine whether the privilege is overcome by malice, bad faith, or abuse.” Eckman v. Cooper Tire & Rubber Co., 893 So.2d 1049, 1052(¶ 9) (Miss.2005). Our supreme court has defined qualified privilege as follows,

A communication made in good faith and on a subject-matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous ...

Young v. Jackson, 572 So.2d 378, 383 (Miss.1990) (quoting Louisiana Oil Corp. v. Renno, 173 Miss. 609, 618-19, 157 So. 705, 708 (1934)). “When qualified privilege is established, statements or written communications are not actionable as slanderous or libelous absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter.” Id. (quoting Benson v. Hall, 339 So.2d 570, 573 (Miss.1976)).

¶ 12. Grice submitted affidavits to the trial court which stated that Garland and Rutland told their employees and independent contractors that Grice had tuberculosis. These same affidavits reveal that both managers advised their employees and contractors to get tested for tuberculosis. There is no question that Garland and Rutland and their employees and independent contractors had a genuine interest in knowing whether a co-worker with whom they were in frequent contact had a highly contagious disease. Accordingly, Garland and Rutland had a qualified privilege to tell their subordinates that Grice either may have had or had tuberculosis.

¶ 13. Grice seems to argue that the privilege was lost because the managers made the statement with malice and/or in bad faith. Grice claims that Garland and/or Rutland should have known that she did not have tuberculosis because Dr. Chase’s office faxed a letter to Federal Express stating that Grice did not have tuberculosis and could return to work. However, as noted above, Grice failed to present any evidence to support this assertion.

¶ 14. We find that Garland and Rutland had a qualified privilege, and their publications regarding Grice’s health fell within the permissible scope of the privilege. The trial court was correct in granting summary judgment in favor of the defendants on this issue.

3. Intentional infliction of emotional distress

¶ 15. To prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove that the defendant’s acts were so extreme and outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Croft v. Grand Casino Tunica, Inc., 910 So.2d 66, 75(¶ 31) (Miss.Ct.App.2005) (quoting Brown v. Inter-City Federal Bank, 738 So.2d 262(¶ 9) (Miss.Ct.App.1999)). As we have found that Garland and Rutland acted without bad faith and with the best interest of their employees and contractors in mind, we fail to find that their acts were extreme, outrageous, or beyond all bounds of decency. As to the alleged threat made by Richardson to Grice, our supreme court has held that liability for intentional infliction of emotional distress does not extend to mere threats. Raiola v. Chevron U.S.A., Inc., 872 So.2d 79, 85(¶ 23) (Miss.Ct.App.2004) (citing Brown v. Inter-City Fed. Bank, 738 So.2d 262, 264(¶ 9) (Miss.Ct.App.1999)).

CONCLUSION

¶ 16. We affirm the grant of summary judgment in favor of Garland and Rutland. We reverse the grant of summary judgment as to Richardson on Grice’s intentional interference with contract claim and remand that issue to the trial court.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED AS TO APPELLEES FEDEX GROUND PACKAGE SYSTEM, INC., AND GARLAND. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY AS TO ALL CLAIMS AGAINST APPELLEE RICHARDSON OTHER THAN THE CLAIM OF INTENTIONAL INTERFERENCE OF CONTRACT IS AFFIRMED. THE JUDGMENT AS TO THE INTENTIONAL INTERFERENCE OF CONTRACT CLAIM AGAINST APPELLEE RICHARDSON ONLY IS REVERSED AND REMANDED. ALL COSTS OF THE APPEAL ARE ASSESSED EQUALLY BETWEEN APPELLANT AND AP-PELLEE RICHARDSON.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . Grice refers to this tort throughout her brief and pleadings as malicious interference with employment relations. However, as an independent contractor, the proper designation is intentional interference with contract.