author: ' KITCHENS, Justice,

text:
    TELLUS OPERATING GROUP, LLC, Baxterville Oil Acquisitions, LLC, Mississippi Oil Acquisitions, LLC, Noms, LLC, SNPI, LLC, Bax, LLC, Vickery Properties LLC, Baxterville Properties, LLC and Sutherland Energy Corp. v. TEXAS PETROLEUM INVESTMENT CO., et al. Texas Petroleum Investment Co., et al. v. Tellus Operating Group, LLC, et al.
    Nos. 2009-CA-01040-SCT, 2009-CA-01174-SCT, 2009-CA-01041-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2012.
    Rehearing Denied Jan. 31, 2013.

      Michael J. Bentley, W. Wayne Drinkwa-ter, Jackson, Paul N. Davis, Ridgeland, Mike Pumphrey, W. David Ross, Rick D. Norton, Hattiesburg, attorneys for appellants/appellees.
    Michael B. Wallace, John P. Sneed, Rebecca Hawkins, Jackson, David W. Holman, Thomas W. Tyner, Daphne M. Lancaster, Hattiesburg, Michael D. Hudgins, Charles E. Greer, V, attorneys for appel-lees/appellants.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   ' KITCHENS, Justice,

for the Court:

¶ 1. The plaintiffs (collectively “Tellus”) alleged that they owned the “shallow gas” rights from the earth’s surface to a depth of 8,000 feet in a tract of land known as the Bilbo A Lease. While ownership of the shallow gas was disputed, all parties agreed that the defendants (collectively “TPIC”) owned the gas rights below 8,000 feet and the oil rights in both the shallow and ■ deep zones. In 2004, Tellus sued TPIC, alleging that it had produced Tel-lus’s shallow gas through one if its wells known as the A-l well. After much pretrial litigation and a two-month jury trial, the trial judge declared that the plaintiffs were the rightful owners and submitted the plaintiffs’ conversion and negligence claims to a jury. The jury returned a general verdict in favor of the defendants, and both sides appealed. Finding no reason to reverse, we affirm the jury verdict and the trial court’s declaratory judgment.

Summary of Facts

¶ 2. At trial, Tellus sought to prove that, from 1995, when it acquired ownership, to 2004, TPIC had wrongfully depleted the natural gas in the shallow zone of the Bilbo A Lease. According to Tellus, TPIC had falsely reported that the gas produced from its A-l well originated in the deep zone. Tellus also alleged that, in furtherance of its tortious conduct, TPIC wrongfully allocated some of the gas to its A-13 well and commingled the remaining gas with gas from other wells.

¶ 3. TPIC countered with evidence that the only gas produced by the A-l well came from the deep zone and that there was no gas in the shallow zone for TPIC to produce. The defendants also argued that, even if Tellus’s claims were true, the statute of limitations had expired, because all of the shallow gas had been depleted by 2001.

Issues on Appeal

¶ 4. Tellus raises six issues on direct appeal: (1) the jury instructions misstated the burden of proof for commingling; (2) special interrogatories prevented the jury from returning a general verdict in the plaintiffs’ favor; (3) two unlicensed engineers testified as experts for the defendants in violation of Mississippi criminal law; (4) TPIC’s expert witness, Rick Garza, offered undisclosed expert testimony at trial; (5) evidence of a defense witness’s bias was improperly excluded; and (6) the trial court erred by excluding evidence of lost profits. On cross-appeal, TPIC argues that the circuit court lacked the authority to enter a declaratory judgment. It also argues that, should this Court reverse the jury’s verdict, we should affirm the judgment in favor of the defendants Bruce Sallee and William Crawford because there was insufficient evidence to support a finding of individual liability.

Discussion

¶ 5. As an initial matter, TPIC asserts that this Court cannot reverse the jury’s general verdict unless Tellus shows error with each of TPIC’s theories of defense. Specifically, TPIC argues that any error with regard to the liability issue does not warrant reversal of the jury’s verdict because the jury could have found that: (a) Tellus’s case was barred by the statute of limitations; (b) there was no gas in the Bilbo A Lease’s shallow zone, and/or (c) TPIC’s employees did not engage in any wrongful conduct.

¶ 6. TPIC is relying on the so-called “two-issue rule,” expounded by the Florida Supreme Court. Barth v. Khubani, 748 So.2d 260, 261-62 (Fla.1999) (citations omitted). The parties dispute whether the rule applies in Mississippi but agree that it requires either distinct theories of liability leading to the same measure of damages or separate, distinct defenses that completely bar recovery. See Id. at 262 n. 7 (“[T]he rule does not apply where there is only one cause of action or one separate and distinct defense theory.”) (citation omitted). Despite TPIC’s arguments to the contrary, its defense theories overlapped; therefore, the “two-issue rule” does not apply.

I. Jury Instructions

¶ 7. Tellus argues that the trial court committed reversible error by instructing the jury on the doctrine of commingling and by submitting special interrogatories on the issue of damages. We agree with the defendants that, because both points of error concern damages only, the general verdict in favor of the defendants precludes appellate review. This Court has held that we will not consider alleged erroneous instructions on the measure of damages when the jury finds in favor of the defendant on the issue of liability. Am. Creosote Works v. Rose Bros., 211 Miss. 173, 177, 51 So.2d 220, 223 (1951).

¶ 8. As for commingling of goods, Tellus argues that instructions improperly placed the burden on the plaintiffs to demonstrate their share of commingled gas. Cf. Peterson v. Polk, 67 Miss. 163, 6 So. 615 (1889) (where defendant commingled plaintiffs staves with his own, and the goods were impossible to separate, plaintiff was not required to identify her staves). Assuming the doctrine applies in this case, Tellus was first required to prove liability, specifically, that TPIC had wrongfully commingled its deep-zone gas with Tellus’s shallow-zone gas. The rule also applies to Tellus’s second point of error. By means of the special interrogatories, the jury was instructed to separate damages by year. As with the issue of commingling, the jury was required to find liability before answering these interrogatories. Because the first two issues concern jury instructions on the measure of damages, we will not reverse the judgment in light of the jury’s finding in favor of the defendants on the threshold issue of liability.

II. Evidentiary Issues

¶ 9. Tellus’s remaining four issues concern evidentiary matters. Generally speaking, this Court will not reverse a judgment based on the admission or exclusion of evidence, unless the appellant demonstrates that the trial judge’s ruling amounts to a prejudicial abuse of discretion. Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1128 (Miss.1995) (citations omitted). See also M.R.E. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.... ”). However, the trial court must employ the proper legal standards. McMillan v. Rodriguez, 823 So.2d 1173, 1177 (Miss.2002) (citations omitted). Questions of law, such as statutory interpretation, are subject to a de novo standard of review. Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So.3d 1123, 1125 (Miss.2012) (citing Hedgepeth v. Johnson, 975 So.2d 235, 237 (Miss.2008)).

A. Professional License

¶ 10. Tellus avers that the trial judge should have disallowed the expert testimony of TPIC’s petroleum engineers, arguing that an engineer’s providing expert testimony without a Mississippi license is a crime under the Mississippi Code. Miss. Code Ann. §§ 73-13-1, 73-13-39 (Rev. 2008). TPIC responds that the Mississippi Rules of Evidence govern the admission of expert testimony, citing several cases from this Court which hold that professional licensure status does not disqualify an expert under Rule 702. See e.g., Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 419 (Miss.2009) (accountant’s licensure status “not crucial” to her qualifications as an expert witness).

¶ 11. Sections 73-13-1 through 73-13-45 of the Mississippi Code make it unlawful to “practice engineering” without a Mississippi license. The statutory definition of the “practice of engineering” includes “expert technical testimony evaluation.” Miss.Code Ann. § 73-13-3 (Rev. 2008). It is a misdemeanor “to practice, or offer to practice, engineering in this state without being licensed” by the Mississippi Board of Licensure for Professional Engineers and Surveyors. Miss.Code Ann. § 73-13-39. The punishment for such crime may include a fine of up to $5,000, investigative expenses, court costs, and imprisonment for up to three months. Miss. Code Ann. § 73-13-39.

¶ 12. This Court consistently has held that a witness may be qualified to provide expert testimony regardless of his or her professional licensure status. See e.g., Cato, 15 So.3d at 417-18 (unlicensed accountant); Blake v. Clein, 903 So.2d 710, 727-28 (Miss.2005) (physician not licensed to practice in the United States); Watts v. Lawrence, 703 So.2d 236, 238-39 (Miss.1997) (unlicensed real estate appraiser). Tellus argues that these cases are distinguishable because none of the licensing statutes at issue criminalized expert testimony without a license.

¶ 13. This exact issue is a matter of first impression. This Court is aware of only two other states, New Mexico and South Carolina, that provide criminal penalties for testifying as an engineering expert without a state license. N.M.Code Ann. §§ 61-23-24(J), 61-23-3(E) (Supp. 2006); S.C.Code Ann. §§ 40-22-20(22), 40-22-30 (Supp.2011). Appellate courts in both states have held that these statutes do not apply to expert testimony offered in a court of law. Baggerly v. CSX Transp. Inc., 370 S.C. 362, 635 S.E.2d 97, 102-04 (S.C.2006); Baerwald v. Flores, 122 N.M. 679, 930 P.2d 816, 819 (1996).

1114. In Baggerly, 635 S.E.2d 97, the South Carolina Supreme Court found that its state licensing statutes for engineers, which criminalized “expert technical testimony,” did not apply to judicial proceedings. The court offered several reasons for its decision. First, it found that the purpose of the statute was to shield consumers, and that the witness’s “services were being offered to a South Carolina jury, not to the State’s citizens seeking traditional professional engineering services.” Id. at 103. The court also held that to exclude such testimony would clearly contravene and place a significant limitation on Rule 702 of the South Carolina Rules of Evidence. Id. at 103-04. “This singling-out of one type of expert witness seems to us to be an absurd result. ...” Id. at 104. Finally, perhaps the most compelling reason for its holding:

[I]f we held that exclusion of an out-of-state professional engineering expert is proper under the statute, the result would be to limit the truth-seeking duty of the courts of this State. We can envision numerous litigation scenarios where a party’s position might only be supported by the expert testimony of an engineer licensed and practicing outside the state of South Carolina. Yet, experts are intended to assist juries. We refuse to endorse an interpretation of the professional engineer licensing statute which has the potential of either preventing out-of-state experts from testifying in South Carolina courts or imposing the unreasonable burden of getting licensed in this State simply to be permitted to provide forensic testimony.

Id. (emphasis in original).

¶ 15. Faced with an almost identical issue, the New Mexico Court of Appeals took a similar position. Baerwald, 930 P.2d at 819. The court found that the New Mexico Supreme Court governs the admissibility of evidence by the procedural rules it adopts, and when a statute and a rule of evidence conflict, the state supreme court’s rules will govern. Id. (citing State ex rel. Reynolds v. Holguin, 95 N.M. 15, 618 P.2d 359, 361 (1980)). Therefore, despite the New Mexico statute’s prohibition of “expert technical testimony” from an unlicensed engineer, the trial court did not err by finding the witness qualified to give expert testimony. Id. (citing N.M.Code Ann. § 61-23-3(E)).

¶ 16. We agree with these courts that the statutory prohibition against an engineer’s providing “expert technical testimony” without a Mississippi license has no bearing on whether a witness is otherwise qualified as an expert under Mississippi Rule of Evidence 702. Cf. King v. Murphy, 424 So.2d 547, 550 (Miss.1982) (“An expert witness who is knowledgeable of, and familiar with, the state-wide standard of care shall not have his testimony excluded on the ground that he does not practice in this state.”). Mississippi Code Section 73-13-1 states that the purpose of requiring a Mississippi license is “to safeguard life, health, and property, and to promote the public welfare.” This explicit objective is not furthered by restricting evidence in a judicial proceeding between private parties. In judicial proceedings, our rules of evidence govern, and we find no error in the admission of the expert testimony, despite the statutory prohibition.

B. Surprise Testimony

' ¶ 17. To prove its theory that the defendant could not have produced gas from the deep zone, Tellus introduced evidence of an obstruction in the A-l well. This obstruction, called a “fish,” was located just above 8,000 feet. Tellus argued at trial that the “fish” completely had blocked the flow of oil or gas from below because the “fish” was not stained with oil when it eventually was removed from the well. To counter this assertion, one of TPIC’s expert witnesses, Rick Garza, testified that the absence of staining on the “fish” did not support Tellus’s theory that the deep zone’s oil and gas were inaccessible. Garza opined that the significant amounts of hot water extracted along with the oil would have removed any oil stains.

¶ 18. Tellus argues that this portion of Garza’s testimony was inadmissible because it was an unfair surprise that went beyond the scope of his report. When disclosing expert opinions, a party is obliged to “state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” M.R.C.P. 26(4)(A)(i). Trial testimony that goes beyond this response is not allowed and may result in reversible error. Canadian Nat’l/Ill. Cent. R. Co. v. Hall, 953 So.2d 1084, n1097 (Miss.2007) (citing Coltharp v. Carnesale, 733 So.2d 780, 786 (Miss.1999); T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 950-51 (Miss.1992)). Likewise, “where the stated subject matter in the response necessarily includes the subject matter testified to at trial, it is an abuse of discretion to exclude the expert’s testimony.” Id. (quoting Buskirk v. Elliott, 856 So.2d 255, 264 (Miss.2003)).

¶ 19. Garza’s pretrial report gave a very detailed account of his opinion that any oil and gas produced from the Bilbo A-l well, during the period in question, originated below 8,000 feet. During trial, Tellus made several objections to the scope of TPIC’s questioning on issues other than the “fish.” The trial judge overruled those objections, finding that Garza could testify about matters that already had been addressed by the plaintiff. Tel-lus eventually asked for a continuing objection “to anything that wasn’t in the report,” but Garza was not asked about the staining until the very end of his extensive direct testimony, without further objection from Tellus. Notably, the trial judge allowed Tellus to present rebuttal evidence about the “fish” over TPIC’s objection.

¶ 20. Certainly, our rules are designed to prevent trial by ambush, but Tellus cannot make such an argument for the first time on appeal. Tellus never once argued that it had been denied the right effectively to rebut Garza’s opinion. Indeed, it was not until post-trial motions that Tellus directed the judge to the precise testimony at issue on appeal. Even then, Tellus did not claim that Garza’s brief testimony was such a significant discovery violation that it had been denied the opportunity to present an effective rebuttal.

¶21. We note that “compliance with the rule involves a fact-intensive comparison between the subject matter contained in discovery responses and the subject matter of the testimony given by the expert at trial.” Hall, 953 So.2d at 1097 (emphasis added) (citing Buskirk, 856 So.2d at 264). In this case, the plaintiffs never offered a specific comparison between the trial testimony and the report. The actual report was presented to the court but once, months before trial, attached as an exhibit to an unrelated pretrial motion. We decline to hold that this one page of testimony, out of thousands, adversely affected a substantial right of the plaintiffs when the same argument was not timely presented to the trial judge. M.R.E. 108(a).

C. Evidence of Bias

¶22. Brad Lowe was employed by TPIC as a full-time “pumper.” His job included well maintenance, reading meters, and reporting gas production for the wells. Lowe’s testimony supported TPIC’s defense, that even if gas existed in the shallow zones, the company did not commingle or divert the gas.

¶ 23. Tellus argues that the trial judge improperly excluded evidence of Lowe’s bias. The proffered evidence sought to prove that Lowe had been accused of stealing copper from both TPIC and Tel-lus, and, that while Tellus had sought restitution for the theft, TPIC declined to press charges. The main piece of evidence was an order of nonadjudication from the Lamar County Circuit Court under Mississippi Code Section 99-15-26. The court nonadjudicated a charge of conspiracy to commit grand larceny on conditions that included Lowe’s payment of restitution to Tellus.

¶ 24. According to Tellus, the evidence was admissible to show that Lowe had strong reasons to resent Tellus and to favor TPIC. M.R.E. 616. (“For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”) Tellus likens Lowe to a witness for the State in a criminal trial who has agreed to testify in exchange for leniency on a pending charge. In the criminal context, we have held: “[ejvidence that a material witness has received favored treatment at the hands of law enforcement authorities, particularly where that witness is himself subject to prosecution, is probative of the witness’s interest or bias and may be developed through cross-examination or otherwise presented to the jury.” Zoerner v. State, 725 So.2d 811, 814 (Miss.1998) (citations omitted).

¶ 25. We find, as did the trial judge, that there is a notable difference in this case, because TPIC, unlike the State, cannot provide leniency in a criminal prosecution. Importantly, the proffered evidence did not reveal the reasons for the trial court’s ordering restitution to Tellus but not TPIC. The evidence was consistent with Lowe’s testimony that he had not committed any crime involving TPIC’s property. Lowe testified at trial that he was salvaging copper and mistakenly took copper from three of his employer’s transformers. Lowe said he was allowed to keep his job but that TPIC had required him to pay for the copper he mistakenly had taken.

¶ 26. Moreover, the criminal charges arose and were resolved after Lowe had been deposed by the plaintiffs. When the basis for the alleged bias arises after a witness is deposed, and the trial testimony does not “varfy] in material particulars,” this Court has found that even an erroneous exclusion of such evidence does not require reversal. “We think the existence of this deposition guarded adequately that [the witness] not wiggle from his true memory.” W.J. Runyon & Son, Inc. v. Davis, 605 So.2d 38, 48 (Miss.1992), overruled on other grounds, Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 152 (Miss.1994). For these reasons, we find the issue without merit.

D. Lost Profits Damages

¶ 27. In its final point of error, Tellus argues that the trial judge improperly excluded evidence of lost profits. As with the alleged errors in jury instructions, this argument goes only to the issue of damages and does not warrant reversal of the jury’s finding on liability.

Cross-Appeal

¶ 28. Initially, TPIC did not dispute the plaintiffs’ ownership interests in the shallow gas rights. Five months before trial, however, TPIC filed a complaint with the Lamar County Chancery Court asserting that it was the rightful owner of the shallow gas rights in question, either through adverse possession or as a bona fide purchaser for value. Shortly after filing its complaint to confirm title in the chancery court, TPIC moved to amend its answer in the circuit court case, alleging that ownership was disputed. TPIC also asked the circuit court to stay the litigation while the chancery court matter was pending.

¶ 29. Before the circuit court had ruled on TPIC’s motions, the chancery court dismissed TPIC’s complaint to confirm title, finding that its claims to ownership should have been brought as compulsory counterclaims in the circuit court against Tellus. TPIC did not appeal the chancellor’s dismissal of its compliant. Instead, TPIC filed another complaint with the Lamar County Circuit Court, seeking to have the ownership issue resolved separately from Tellus’s lawsuit. This matter came before the other Lamar County circuit judge, who gave TPIC the option of filing a compulsory counterclaim against Tellus or transferring the case to chancery court. TPIC chose the latter option, and the issue was again placed on the chancery court’s docket.

¶ 30. Understandably, Judge Harrell expressed concern that TPIC was attempting to forum shop, but counsel for TPIC assured the trial judge that TPIC simply was trying to have the title issue resolved in the proper court. Eventually, TPIC and Tellus agreed that Judge Harrell would resolve the question of ownership before Tellus’s conversion claims could be submitted to the jury. During trial, Judge Harrell announced that he had studied the competing evidence and had determined that Tellus had a legitimate ownership interest in the shallow gas rights. He also asked Tellus’s attorneys to draft a written order. That order was entered after the jury had found in favor of TPIC.

¶ 31. TPIC has cross-appealed the declaratory judgment, making interrelated arguments that: (1) the declaratory judgment exceeded the scope of the complaint’s demand for relief; (2) the circuit court did not have jurisdiction over title issues; and (3) the ownership issue became moot once the jury had entered a general verdict in favor of TPIC. Mississippi Rule of Civil Procedure 57 grants courts of record the discretion to enter declaratory judgments in appropriate cases. M.R.C.P. 57 cmt. (“The granting of a declaratory judgment rests in the sound discretion of the trial court exercised in the public interest.”) See also State Farm Mut. Auto. Ins. Co. v. McGee, 759 So.2d 358, 359 (Miss.1999) (holding that trial court did not “abuse its discretion” in refusing to grant declaratory judgment). While the decision to grant this type of relief is discretionary, the judg-merit’s conclusions of law are reviewed de novo on appeal. Tunica County v. Hampton Co. Nat’l Sur., LLC, 27 So.3d 1128, 1131 (Miss.2009) (citing S.C. Ins. Co. v. Keymon, 974 So.2d 226, 229 (Miss.2008)).

¶ 32. TPIC claims that the declaratory judgment improperly granted relief that was never requested. The specifics of this argument are unclear, and TPIC does not adequately explain how the adjudication of ownership was outside the scope of the pleadings. Count One of Tel-lus’s complaint requested a declaratory judgment on several issues related to Tel-lus’s interest in the shallow-gas rights, including whether Tellus and TPIC were “legal co-tenants of the leasehold estate in the Bilbo A Lease.” The trial centered on conversion, a claim for which the plaintiffs could not recover damages without first establishing lawful ownership. Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 68-69 (Miss.2004). Tellus agreed that this essential element would be decided by the trial judge before the conversion claim could be presented to a jury. As a threshold question, a determination of ownership most certainly would “terminate the controversy or remove an uncertainty.” M.R.C.P. 57(4).

¶ 33. We also note that a trial judge may grant relief that is not demanded in the pleadings, if the relief is supported by the evidence and is within the court’s jurisdiction to grant. M.R.C.P. 54(c). This general rule extends to declaratory judgments under Rule 57. M.R.C.P. 57 cmt. Moreover, TPIC cannot claim that it was unfairly surprised because it agreed that the trial judge would determine ownership and because the trial judge announced his ruling before the case was submitted to the jury. See Cain v. Robinson, 523 So.2d 29 (Miss.1988) (award of monetary damages not error despite no request for relief when allegations in the complaint supported the award); M.R.C.P. 15(b) (issues not raised by the pleadings may be tried by consent). M.R.C.P. 15(b). Under these circumstances, we cannot find that the declaratory judgment was an abuse of the trial judge’s discretion.

¶ 34. TPIC also argues that the circuit court did not have jurisdiction to determine the rightful owner of the shallow gas. Citing McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991), TPIC recognizes that courts of law may have pendent jurisdiction to try title if that issue is incidental to the main action, but TPIC attempts to distinguish McDonald’s by arguing that the jury verdict in its favor mooted the ownership issue. TPIC relies heavily on the fact that the formal judgment was entered after the jury verdict, but the trial judge made a clear ruling from the bench well in advance of jury deliberations. In addition, TPIC cites no authority to support its argument that a jury verdict somehow can divest the trial court of jurisdiction and void a previous ruling by the court. These arguments are even more specious given that jurisdiction was heavily litigated and that TPIC eventually acquiesced to the circuit court’s authority. We find no merit in the defendants’ arguments on cross-appeal and will not disturb the declaratory judgment.

Conclusion

¶ 35. Both sides are aggrieved by the final judgment, but neither side is entitled to reversal. For the reasons expressed in this opinion we affirm the final judgment of the Lamar County Circuit Court.

¶ 36. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. WALLER, C.J., AND RANDOLPH, J., NOT PARTICIPATING.

      . Total Petrochemicals, TPIC's predecessor under the Bilbo A Lease, was also a defendant at trial. The jury returned a separate verdict in favor of Total, and Tellus appealed. The appeal was voluntarily dismissed, but the appellate record in the Total appeal was consolidated with that of the TPIC appeals.

      . For example, while the statute of limitations can be a complete affirmative defense, the jury was instructed that it would not bar a claim for any gas produced within three years of the complaint.

      . The only other statute authorizing criminal penalties for testifying without a license pertains to land surveying. Miss.Code Ann. § 73-13-95 (Rev.2008).

      . The Alabama Code section related to engineers explicitly provides that expert "qualification by the court shall not be withheld from an otherwise qualified witness solely on the basis of the failure of the proposed witness to hold such valid Alabama license.” Ala.Code § 34-11-1 (2010).

      . Tellus filed a motion to supplement the record with Garza’s report, apparently under the belief that the report was not before us. TPIC filed a response in opposition, arguing that the motion was unnecessary because Garza’s report is in the record on appeal. TPIC opposed motion to the extent Tellus sought to include the exhibits to Garza’s report. The motion was passed for consideration on the merits. Having reviewed the record, TPIC is correct that the report appears in the trial clerk’s papers as an exhibit to one of Tellus's pretrial filings. Accordingly, we hereby deny Tellus's motion to supplement the record to the extent it seeks to add the report's exhibits, and dismiss the motion as moot to the extent that it seeks to supplement the record with a document already before this Court.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Robert Michael FULTON v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 2009-CT-01529-SCT.
    Supreme Court of Mississippi.
    Oct. 11, 2012.
    Rehearing Denied Jan. 10, 2013.

      0. Stephen Montagnet, III, W. Thomas McCraney, III, Ridgeland, attorneys for appellant.
    Michael Wayne Baxter, Walker Reece Gibson, Ridgeland, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. After Mississippi Farm Bureau Casualty Insurance Co. (“Farm Bureau”) delayed payment of Robert Michael Fulton’s uninsured-motorist benefits, Fulton sued Farm Bureau. The jury found Farm Bureau negligent for failing to timely investigate and pay Fulton’s claim, awarding Fulton $10,000 in extracontractual damages. The jury did not find that Farm Bureau acted grossly negligent, reckless, or in bad faith and awarded no punitive damages.

¶ 2. Following the jury’s verdict, Fulton filed a post-judgment motion to amend, seeking $120,773 in attorney’s fees and expenses. The circuit court denied the motion, analyzing it under Mississippi Rule of Civil Procedure 59(e) and finding that Fulton had not shown reason to amend as this Court requires. Fulton appealed the denial of his motion, arguing that attorney’s fees were collateral to the final judgment and outside the scope of Rule 59(e). The Court of Appeals agreed and reversed the circuit court, holding that — because attorney’s fees are “collateral” to the final judgment and outside the scope of Rule 59(e) — the court at least should have considered awarding them.

¶ 3. We find that the Court of Appeals erred in classifying attorney’s fees as “collateral.” Fulton had no post-judgment right to attorney’s fees because the jury did not award punitive damages, and neither a statutory nor a contractual provision authorizes such fees. The circuit court — properly applying a Rule 59(e) analysis — did not abuse its discretion in denying Fulton’s motion. Therefore, we reverse the Court of Appeals and reinstate and affirm the circuit court’s decision.

BACKGROUND FACTS AND PROCEEDINGS

¶ 4. Robert Michael Fulton was a spectator at the Little Yazoo Dirt Race Track when an uninsured and intoxicated race-car driver, Lofton Eugene Pigg Jr., lost control of his race car and drove into the spectator section. Pigg struck and injured Fulton.

¶ 5. Six months after the accident, Fulton submitted a claim for uninsured-motorist benefits to Farm Bureau. Two months later, Fulton sued Farm Bureau, claiming it had breached its contractual duty to pay insurance proceeds; delayed payment of insurance proceeds in bad faith; and negligently failed to timely investigate, process, and pay Fulton’s claims. Fulton pleaded actual economic damages, including attorney’s fees, as an element of damages resulting from Farm Bureau’s delay in investigating and paying the claim.

¶ 6. When Fulton filed suit, Farm Bureau was investigating Fulton’s claim. Farm Bureau ultimately paid Fulton $25,502.50 of his $50,500 in total available uninsured-motorist benefits. The jury found that Farm Bureau neither had breached the insurance contract nor acted in bad faith, and it awarded Fulton no punitive damages. However, the jury awarded Fulton the remainder of his uninsured-motorist policy benefits and — because Farm Bureau had delayed in investigating and paying Fulton’s claim — the jury awarded Fulton $10,000 in extracontractual damages. Neither party appealed the extracontractual damages or the denial of punitive damages.

¶ 7. Post-trial, Fulton filed a motion seeking $120,773 in attorney’s fees, costs, expenses, and interest. He argued that attorney’s fees were judgment-derivative and collateral to the jury’s verdict. The astute circuit judge denied the motion, stating:

This Court, after considering the motion, records and pleadings, finds that Plaintiff filed a timely Rule 59(e) motion to amend judgment!,] but the Plaintiffs motion failed to show one of the three requirements set forth by the Mississippi Supreme Court in Brooks v. Robertson [Roberts ], 882 So.2d 229 (Miss.2004), which states:
“[I]n order to succeed on a Rule 59(e) motion, the movant must show (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law to prevent manifest injustice.”
The Court therefore finds the Plaintiffs Motion to Amend Judgment to Award Attorneys Fees and Expenses, Costs and Interest is hereby DENIED.

¶ 8. Fulton appealed, alleging the circuit court erred in applying Rule 59(e). The Court of Appeals agreed, reversed, and remanded, holding that the circuit court should have considered attorney’s fees because they lie outside the scope of Rule 59(e). Farm Bureau filed, and the Court of Appeals denied, a motion to reconsider. Farm Bureau timely petitioned this Court for certiorari.

ANALYSIS

¶ 9. The issue before this Court is whether Mississippi Rule of Civil Procedure 59(e) governs Fulton’s motion to amend for attorney’s fees. We hold it does. Our review is therefore limited to abuse of discretion. A judge may award attorneys fees collaterally only if statutorily or contractually authorized, or if punitive damages are also awarded.

¶ 10. In this case, neither a statute nor a contract authorized attorney’s fees, and the jury did not award punitive damages. Therefore, attorney’s fees are not judgment-derivative and a postjudgment request for such fees falls within the scope of Rule 59(e). We find that the circuit court properly analyzed Fulton’s motion.

I. The circuit court did not abuse its discretion in denying Fulton’s motion to amend for attorney’s fees.

¶ 11. Rule 59(e) permits a party to file a motion to amend or alter a judgment. The United States Supreme Court — construing an identical rule — “has held Rule 59(e) embraces motions urging ‘reconsideration of matters properly encompassed in a decision on the merits.’ ” This Court, has held that “in order to succeed on a Rule 59(e) motion, the movant must show (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law to prevent manifest injustice.”

¶ 12. As a result of Farm Bureau’s delay in payment and investigation of his claim — essentially, a negligence claim— Fulton pleaded actual economic damages, including attorney’s fees. The jury found that Farm Bureau was negligent in investigating and paying Fulton’s claim and awarded Fulton $10,000 in extracontractual damages. Fulton did not appeal the jury’s award of extracontractual damages.

¶ 13. Post-judgment, Fulton filed a motion to amend, seeking attorney’s fees. Recognizing that, in asking for attorney’s fees, Fulton was essentially seeking additional “extracontractual” damages, the trial judge considered Fulton’s motion under Rule 59(e), found that Fulton failed to show reason to amend, and denied the motion. This was not error.

¶ 14. Fulton argues, and the Court of Appeals agreed, that attorney’s fees are a collateral matter outside the scope of Rule 59(e). Attorney’s fees, however, are not merely a procedural matter separate from the substantive merits of an action. The right to attorney’s fees is substantive law.

¶ 15. Although, as explained below, circumstances may exist in which attorney’s fees would be collateral, this is not one of those circumstances. Without an independent right to attorney’s fees, a post-judgment motion to amend for attorney’s fees falls under Rule 59(e). And under Rule 59(e), certain requirements must be met. Fulton failed to meet those requirements. The circuit court did not abuse its discretion in denying Fulton’s motion.

A. A successful litigant in Mississippi is not automatically entitled to attorney’s fees.

¶ 16. Mississippi has long followed the American rule, meaning “[ajbsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” If independent grounds for attorney’s fees exist, a trial judge may award such fees collaterally. But if the jury does not award punitive damages, “attorneys’ fees are clearly not to be awarded by the trial judge.”

¶ 17. Neither the Mississippi uninsured motorists statutory scheme nor any other Mississippi statute authorizes attorney’s fees in this action. Fulton and Farm Bureau’s contract does not authorize attorney’s fees. And the jury did not award punitive damages. Therefore, Fulton had no post-judgment right to such fees.

¶ 18. Both Fulton and the Court of Appeals erroneously relied on this Court’s statement in Bruce v. Bruce: “motions for reassessment of attorneys fees lie outside Rule 59(e), because they are ‘collateral’ and do not seek a change in the judgment but ‘merely what is due because of the judgment.’ ” This statement is inapplicable here because, in Bruce — and in the other cases cited by Fulton — either a statute or established precedent allowed the award of attorney’s fees.

¶ 19. In this case, no independent grounds support Fulton’s post-judgment request for attorney’s fees. The circuit court properly recognized that it lacked independent grounds to award such fees and properly analyzed Fulton’s motion under Rule 59(e). It did not abuse its discretion in denying the motion.

B. The jury’s award of extracontrac-tual damages is insufficient independently to support attorney’s fees.

¶ 20. Fulton asserts that, like punitive damages, extracontractual damages independently support attorney’s fees. But extracontractual damages serve a different role than punitive damages in insurance actions. When an insurer denies a claim without an arguable basis, but the jury does not award punitive damages, extracontractual damages may provide an intermediate form of relief. And in determining whether this intermediate relief is warranted, this Court has noted that mere negligence, without bad faith, “is not such an independent tort that would support extracontractual damages.”

¶ 21. Neither party appealed the award of extracontractual damages, and its propriety is not at issue. Fulton contends that, because Farm Bureau did not appeal the extracontractual damages, it is a final judgment and an independent basis for the trial judge to award attorney’s fees. Fulton interprets the award much too broadly.

¶ 22. The term “extracontractual damages” refers to damages not justified under the terms of the contract, and necessarily including punitive damages. Punitive damages, technically, are always “extra-contractual” damages, since no one contracts to pay them. But in the insurance context, “extracontractual damages” are not punitive damages in the traditional sense. Extracontractual damages are awarded when punitive damages are not, and are intended to cover reasonably foreseeable costs and expenses, such as attorney’s fees.

¶23. The “extracontractual damages” that the jury awarded Fulton, by their very nature, were intended to cover his costs, expenses, and attorney’s fees. Fulton had the option of appealing the award of extracontractual damages, and claiming that they were insufficient. This he did not do. Allowing an award of attorney fees on top of extracontractual damages would amount to a double recovery, and it would contradict the American rule.

¶ 24. The Court of Appeals took issue with the jury’s award of extracontractual damages on the basis of negligence. Citing Veasley, the court stated “[t]o award extra-contractual damages, the jury had to find that the mental anguish and emotional distress of the plaintiffs was ‘an independent and intentional tort separate from the breach of contract.’” The court inferred that by awarding extracontractual damages, the jury found an “independent and intentional tort.” The court then likened extracontractual damages to punitive damages, finding that attorney’s fees were collateral to the final judgment (as if ex-tracontractual damages were punitive damages).

¶ 25. The Court of Appeals analysis was wrong for two reasons. First, nothing supports the court’s hypothesis that, in making its award, the jury found Farm Bureau liable for an “independent and intentional tort.” As Judge Carlton correctly pointed out in her dissent, “the [circuit court’s] judgment reflects no finding of any intentional or malicious act or any act or reckless disregard rising above mere negligence. This Court cannot infer that, because the jury awarded extracon-tractual damages, it must have found an independent intentional tort. This is so especially where, as here, the record contains no indication supporting such a position.

¶ 26. Second, no precedent supports Fulton’s argument. Were we to affirm the Court of Appeals and permit an award of attorney’s fees based on an award of extracontractual damages, “we would be moving toward the English rule of awarding counsel fees to successful plaintiffs in litigation.” The circuit court properly recognized that, because no punitive damages were awarded, no independent grounds existed for a post-judgment award of attorney’s fees.

C. Universal Life Insurance Co. v. Veasley does not create an independent right to attorney’s fees.

¶ 27. Fulton correctly asserts that Veasley permits an award of attorney’s fees without an award of punitive damages. But Veasley does not stand for the proposition that attorney fees may be awarded post-trial, on top of an award of extracontractual damages. Such a broad reading, premised on dicta, inaccurately interprets the Court’s holding in that case.

¶ 28. In Veasley, due to no evidence of bad faith, we reversed an award of punitive damages, but affirmed extracontractual damages awarded for an emotional-distress claim. In articulating its reason for affirming, the Veasley Court stated, in dicta, that if an insurer negligently failed to pay a valid claim without “an arguable reason,” then “[additional inconvenience and expense, attorney’s fees and the like” may be foreseeable. The Court merely used the term “attorney’s fees” to point out that under certain circumstances, ex-tracontractual damages may be available, even if punitive damages are not. But in Veasley, no attorney’s fees were awarded on top of the extracontractual damages award.

¶ 29. Fulton’s jury verdict is similar to Veasley in one respect — extracontractual damages were awarded and punitive damages were not. But the issue before us today is not the propriety of the extracon-tractual damages, as it was in Veasley. The issue before us today is Fulton’s post-judgment request for attorney’s fees following a jury’s award of extracontractual damages — an issue not addressed in Veas-ley.

¶ 30. Fulton pleaded actual economic damages, including attorney’s fees, as an element of damages resulting from Farm Bureau’s delay in payment. Had Fulton appealed the award of extracontractual damages, claiming it was inadequate, we could have considered whether the jury’s award of extracontractual damages was appropriate. But since he did not appeal that issue, he will not be heard now to complain that he did not receive an award of attorney’s fees.

CONCLUSION

¶ 31. Following the jury’s award of ex-tracontractual damages, the circuit court properly considered and denied Fulton’s post-judgment request for attorney’s fees under Mississippi Rule of Civil Procedure 59(e). The circuit court did not abuse its discretion in denying Fulton’s motion and, accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the Circuit Court of Yazoo County is reinstated and affirmed.

¶ 32. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . See Brooks v. Roberts, 882 So.2d 229, 233 (Miss.2004).

      . Fulton also sued Pigg and the race track. The jury found Pigg 100% at fault.

      . Fulton v. Miss. Farm Bureau Cas. Ins. Co., 105 So.3d 331, 334-36 (Miss.Ct.App.2011).

      . Fowler v. White, 85 So.3d 287, 292 (Miss.2012) (citing City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 66 (Miss.2005)).

      . Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss.2002).

      . M.R.C.P. 59(e).

      . Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (quoting Buchanan v. Stanships, 485 U.S. 265, 267, 108 S.Ct. 1130, 1131, 99 L.Ed.2d 289, 293 (1988)).

      . Brooks v. Roberts, 882 So.2d 229 (Miss.2004).

      . Cook, 832 So.2d at 486 (citing Aetna Cas. and Sur. Co. v. Steele, 373 So.2d 797, 801 (Miss.1979)). See also Willard v. Paracelsus Health Care Corp., 681 So.2d 539, 544 (Miss.1996); Stokes v. Bd. of Directors of La Cav Imp. Co., 654 So.2d 524, 529 (Miss.1995); Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359 (Miss.1992); and Cent. Bank of Miss. v. Butler, 517 So.2d 507, 512 (Miss.1987).

      . Miss.Code Ann. § 9-1-41 (Rev.2002); Cook, 832 So.2d at 487.

      . Cook, 832 So.2d at 488.

      . Bruce, 587 So.2d at 903 (citing Buchanan, 485 U.S. at 267-68, 108 S.Ct. 1130).

      . See, e.g., Bruce, 587 So.2d at 903 (post-judgment fees authorized in divorce action based upon established precedent and financial need of spouse); Cruse v. Nunley, 699 So.2d 941 (Miss.1997) (42 U.S.C. § 1988 authorized fees); Buchanan, 485 U.S. at 267-68, 108 S.Ct. 1130 (42 U.S.C. § 1988 authorized fees); White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (42 U.S.C. § 1988 authorized fees); Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980) (42 U.S.C. § 1988 authorized fees).

      . Universal Life Ins. Co. v. Veasley, 610 So.2d 290 (Miss.1992).

      . Id. at 295; Lisanby, 47 So.3d at 1178 (quoting United Amer. Ins. Co. v. Merrill, 978 So.2d 613, 627 (Miss.2007)) ([P]laintiff’s burden in proving a claim for bad faith refusal goes beyond proving mere negligence....”).

      . Farm Bureau did not appeal the jury’s $10,000 award of extracontractual damages (although Farm Bureau did object to the jury instruction). It contends that, had it appealed, the award would have been reversed under USAA v. Lisanby, 47 So.3d 1172, 1178 (Miss.2010) (''Extracontractual damages, such as awards for ... attorney’s fees are not warranted where the insurer can show an arguable, good-faith basis for denial of a claim.... [Pjlaintiff’s burden in proving a claim for bad faith refusal goes beyond proving mere negligence ....”) (internal citations omitted). However, that issue is not before this Court.

      . Windmon v. Marshall, 926 So.2d 867, 874 n. 2 (Miss.2006) (“Extracontractual damages include reasonable attorney fees, court costs, and other economic damages.”) (Court denied attorney fees on the basis that there was no independent tort.)

      . Veasley, 610 So.2d at 295.

      . Id.

      . Id.

      . Willard, 681 So.2d at 544.

      . Fulton, 105 So.3d at 333.

      . Id. In drawing this comparison, the Court of Appeals relied on Mississippi Power & Light Co. v. Cook, 832 So.2d 474 (Miss.2002). In Cook, however, the jury awarded the plaintiff $5,000,000 in punitive damages, creating an independent basis for attorney’s fees.

      . Fulton, 105 So.3d at 340 (Carlton, J., dissenting).

      . Stewart v. Gulf Guar. Life Ins. Co., 846 So.2d 192, 201 (Miss.2002) (Court explained that, without a finding, the court cannot assume the jury found conduct rising to the level of an intentional tort, amounting to gross negligence or recklessness, thus warranting extracontractual damages.)

      . Cf. Veasley, 610 So.2d at 295.

      . Willard, 681 So.2d at 544.

      . Veasley, 610 So.2d at 295; see Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 8:2 (Rev.2001) ("In [Veasley], ... the court held that attorney's fees were proper even though punitive damages were not, because attorneys' fees were a foreseeable consequence of the negligence of the company's employee in failing to pay a valid claim.")

      . Veasley, 610 So.2d at 294-95.

      . Id. at 294-95.

      . Id.

      . Although, in this case, the jury did not award punitive damages, and in Veasley, the Court reversed the jury's award of punitive damages, the result is the same.


author: LAMAR, Justice,

text:
    John MOLLAGHAN and John Vincent v. Sonya VARNELL, Individually and Officially, Estate of Dr. Horace Fleming, Deceased; Richard Giannini, Individually and Officially. and University of Southern Mississippi and Sonya Varnell v. Ged O’Connor.
    No. 2010-CA-02005-SCT.
    Supreme Court of Mississippi.
    Nov. 1, 2012.
    Rehearing Denied Jan. 17, 2013.

      Kim T. Chaze, Hattiesburg, Alexander Ignatiev, attorneys for appellants.
    Matthew D. Miller, Hattiesburg, William E. Whitfield, III, Biloxi, Nicholas K. Thompson, Hattiesburg, Mark D. Morrison, Ridgeland, Herman M. Hollensed, Jr., Hattiesburg, Bryan Nelson, attorneys for appellees.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. In this sexual-harassment, due-process, gender-discrimination, and retaliation ease, we must decide whether the Circuit Court of Forrest County, Mississippi, properly ruled on a motion for judgment notwithstanding the verdict (JNOV). We find that the circuit court properly granted JNOV on the due-process, gender-discrimination, and retaliation claims, but improperly denied JNOV on the sexual-harassment claims. Therefore, we affirm in part, and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the time period between July 1, 1999, and June 30, 2000, John Vincent and John Mollaghan were employed by the University of Southern Mississippi (“USM”) as coaches for the women’s soccer team under one-year contracts. Vincent and Mollaghan had been employed as the head coach and assistant coach since 1997 and 1998, respectively; however, their employment contracts had always been for one-year terms and previously had been renewed at the conclusion of the contractual time period. Both Vincent’s and Mollaghan’s contracts stated that USM reserved the right to transfer, reassign, or change the duties of the employee during the term of the contract. Ged O’Connor was the graduate assistant coach for the women’s soccer team during the 1999-2000 time period and did not have an employment contract with USM.

¶ 3. In 1999, Sonya Varnell and Richard Giannini became the senior women’s administrator for women’s sports and the USM athletic director, respectively. Vincent, Mollaghan, and O’Connor argue that Varnell and Giannini immediately made clear they preferred women to coach women’s sports, and Giannini testified that he did feel that women should coach women’s sports if women’s sports were ever to be at the same level as men’s sports. Vincent, Mollaghan, and O’Connor argue that Var-nell and Giannini immediately began to engage in conduct designed to undermine the coaches’ authority and ability to coach the soccer team. Among other complaints, they argue Varnell improperly accompanied the team to road games, became too friendly with the team members, and took control of scholarship decisions in an effort to show she had final say over the program and to undermine Vincent’s authority in the eyes of the players. They argue this conduct was designed to effectuate their removal so they could be replaced with female coaches.

¶ 4. Varnell testified that she normally traveled with the teams to their conference tournaments, but in 1999, she decided to accompany the team to a regular-season game because she was not sure the worn-en’s soccer team would qualify for their tournament. In late October, Varnell accompanied the team to regular-season games in Chicago, Illinois. O’Connor alleged that he was subjected to sexual harassment by Varnell on the trip. Specifically, O’Connor testified that he was in charge of obtaining Subway sandwiches for the team prior to leaving for Chicago; however, he was unable to take Varnell’s order and subsequently did not get her a sandwich. O’Connor testified that, when he boarded the bus with the sandwiches, he told Varnell that he did not get her a sandwich, but would be glad to give her six inches of his footlong. According to O’Connor, Varnell then said “You’re so nasty, you’re so nasty.” Varnell testified that after O’Connor offered her six inches of his sandwich, Vincent stated, “I didn’t know you had six inches to give her, mate,” to which she replied, ‘You know that’s not what he meant.”

¶ 5. Ultimately, the soccer team did qualify for their conference tournament in 1999. In early November 1999, Varnell accompanied the team to the tournament in Milwaukee, Wisconsin. O’Connor alleged that he was sexually harassed by Varnell on that trip as well. Specifically, O’Connor testified that Varnell touched his arm and offered him the extra bed in her room several times after the team arrived at their hotel in Milwaukee. O’Connor testified he took that to mean Varnell was ordering him to sleep in her room and implying that she wanted to have sex with him. However, it is undisputed that Var-nell offered O’Connor her extra bed after overhearing Vincent and Mollaghan teasing O’Connor for having to share a hotel room with a man they perceived to be homosexual and after O’Connor had asked to sleep in Vincent and Mollaghan’s room. O’Connor further testified that he was not bothered by Vincent and Mollaghan’s comments because they were friends, but that Varnell’s offer of her extra bed made him uncomfortable because they did not have a close relationship. It is undisputed that Varnell did not offer O’Connor her bed and did not directly proposition him for sex. The “Subway-sandwich incident” and the “hotel-room incident” are the only two instances of sexual harassment of which O’Connor complains.

¶ 6. It is undisputed that Varnell became aware that several team members had complaints regarding the coaching staff during her trips with the team. Varnell testified that Vincent had informed her previously to expect some complaints because some upperclassmen were upset about their playing time being cut in favor of younger players. Varnell testified that, on the way home from the conference tournament, Vincent, Mollaghan, and Varnell agreed that she would interview the players individually once they returned to USM and try to sort out the problem. These interviews took place in mid-November.

¶ 7. After interviewing the players, Var-nell received a letter signed by the majority of the soccer team members outlining problems they perceived with the women’s soccer program and coaches; Varnell also received several letters complaining about the program from players’ parents. Additionally, several players threatened to leave the team. Varnell testified that the complaints amounted to much more than disputes over playing time, and that she was shocked by some of the allegations.

¶8. After completing the interviews, Varnell prepared a summary of what had transpired leading up to the student interviews and in the interviews themselves, which she distributed to Giannini, Vincent, Mollaghan, and the student athletes. Vincent testified he received a copy of this summary, as well as copies of all letters received from the students and the students’ parents, in November, and that he was aware of the allegations against him. Around the same time as receiving the summary and letters, Vincent reported Varnell’s alleged sexual harassment of O’Connor.

¶ 9. After Vincent received the material regarding the students’ complaints, Vincent met with Giannini and Varnell to discuss the complaints. A second meeting was held in December to address the students’ concerns regarding Vincent’s conduct, at which the soccer team, Varnell, Giannini, Mollaghan, O’Connor, Vincent, his wife, and his child were present. The second meeting was not productive, and in mid-December, Vincent was reassigned, as his contract allowed, to a teaching position at USM. Varnell and Giannini testified that Vincent was reassigned because they felt the program had been compromised and Vincent had lost his ability to lead the team. On December 22, 1999, Vincent filed a grievance alleging that Varnell improperly had interfered with the soccer program and that Giannini had reassigned him without a hearing. Vincent never received a hearing on his grievance. Vincent remained in a teaching position until his contract expired on June 30, 2000, and his contract was not renewed.

¶ 10. After Vincent was reassigned in December 1999, Mollaghan was promoted to interim head coach. Although he applied for the position of head coach, and interviewed twice, Matt Clark, a male who was the head coach for Auburn University at the time, was ultimately hired as head coach for the women’s soccer team and remained in that position for four years. Giannini and Varnell testified that Clark was hired because he felt Clark was the most qualified candidate with the most experience, and it is undisputed that Clark was qualified for the position of head coach.

¶ 11. In April 2000, during the interview process for head coach, Mollaghan received an unfavorable annual review from Varnell, which he felt contributed to his not being hired as head coach. Molla-ghan filed a grievance over his annual review on May 7, 2000, but he testified that he never received a reply, as he felt he was entitled to under USM’s staff handbook. Mollaghan filed a second grievance on May 19, 2000, alleging improper conduct between Varnell and the student athletes, but he testified that he never received a hearing on his second grievance either. Mollaghan testified that it was his position that his May 19 grievance constituted a complaint about Varnell’s alleged sexual harassment of O’Connor, as he believed the two instances fell under the general grievance of improper conduct.

¶ 12. Ultimately, Mollaghan accepted a coaching position with Spring Hill College prior to his contract with USM expiring. According to Mollaghan, he took the job because he was not sure his contract would be renewed and he was concerned that he might have to return to the United Kingdom if he was out of work for more than thirty days, because he was in the United States on a work visa. After Mollaghan took the job with Spring Hill, USM extended his contract for thirty days so that he would not have any problems with his visa. Vincent and Mollaghan’s employment contracts were not terminated early, and they were paid the full monetary amount due under their contracts.

¶ 13. After Vincent was reassigned and Mollaghan was promoted to interim head coach, O’Connor continued in his position as graduate assistant coach for the women’s soccer team. O’Connor eventually resigned his position as graduate assistant coach, effective July 28, 2000, to accept a position at the University of Louisiana-Monroe.

¶ 14. Vincent, Mollaghan, and O’Connor filed suit against USM and Varnell, Giannini, and Dr. Horace Fleming (the former president of USM), in their individual and official capacities, asserting various federal and state-law claims. The cases were consolidated for discovery and trial. Prior to trial, Varnell, Giannini, Fleming, and USM filed a joint motion for summary judgment, which the circuit court granted in part and denied in part. Specifically, the circuit court granted the defendants’ motion for summary judgment on all claims except for O’Connor’s sexual-harassment claim brought against Varnell in her individual capacity under 42 U.S.C. § 1983; Vincent’s and Mollaghan’s procedural due-process claims asserted against Varnell, Giannini, and Fleming in their individual capacities; and Vincent’s, Mollaghan’s, and O’Connor’s gender-discrimination and retaliation claims asserted under Section 1988 against Varnell and Giannini in their individual capacities.

¶ 15. After trial, the jury returned verdicts in favor of Vincent, Mollaghan, and O’Connor. As to Vincent, the jury found that Giannini and Varnell had discriminated against him because he was male, that Giannini and Varnell had retaliated against him because he had reported O’Connor’s sexual harassment allegations, and that he had been denied his due-process rights by Fleming, Giannini, and Varnell because he did not receive a hearing he contended he was entitled to under the staff handbook. The jury awarded Vincent $500,000. As to Mollaghan, the jury found that Giannini and Varnell had discriminated against him because he was male, that Giannini and Varnell had retaliated against him because he had reported O’Connor’s sexual harassment allegations, and that he had been denied his procedural due-process rights by Giannini, and Var-nell because he did not receive a hearing he contended he was entitled to under the staff handbook. The jury awarded Molla-ghan $376,000. As to O’Connor, the jury found that Giannini and Varnell had discriminated against him because he was male, that Varnell’s conduct had constituted sexual harassment against O’Connor, and that Varnell and Giannini had retaliated against him because he had filed a sexual-harassment grievance. The jury awarded O’Connor $300,000.

¶ 16. After trial, Varnell, Giannini, and Fleming filed a Joint Motion for Judgment Notwithstanding the Verdict, or, Alternatively, for a New Trial as to the Separate Plaintiff John Vincent, which the circuit court granted in part and denied in part. Specifically, the circuit court denied Var-nell’s motion for JNOV as to O’Connor’s sexual-harassment claim, finding that it could not say the. evidence of sexual harassment was so deficient that the necessity for a jury had been obviated. However, the circuit court found insufficient evidence to support the jury’s verdicts in favor of Vincent and Mollaghan on their procedural due-process claims, insufficient evidence to support the jury’s verdicts in favor of Vincent, Mollaghan, or O’Connor on their gender-discrimination claims, and insufficient evidence to support the jury’s verdicts in favor of O’Connor, Vincent, or Mollaghan on their retaliation claims, and granted the defendants’ motion for JNOV on these claims.

¶ 17. Varnell appealed the circuit court’s denial of her motion for JNOV on O’Connor’s sexual-harassment claim; Vincent and Mollaghan appealed the circuit court’s grant of JNOV on their gender-discrimination, retaliation, and due-process claims. O’Connor did not perfect an appeal.

¶ 18. We find that O’Connor did not present sufficient evidence to support the jury’s verdict on his sexual-harassment claim; therefore, we reverse the circuit court’s denial of JNOV on that claim and render judgment in favor of Varnell. We further find that Vincent and Mollaghan did not present sufficient evidence to support the jury’s verdicts on their claims of gender-discrimination, retaliation, or deprivation of procedural due process; therefore, we affirm the circuit court’s grant of JNOV on these claims.

DISCUSSION

A. Standard of Review

¶ 19. We review a trial court’s decision to grant JNOV de novo. A motion for JNOV tests “the legal sufficiency of the evidence, not the weight of the evidence supporting the verdict.” We are required to view the evidence in the light most favorable to the nonmoving party. Essentially, we must ask “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Furthermore, if a plaintiff fails to establish the prima facie elements of his claim, “JNOV is proper."

13. Sexual Harassment

¶ 20. Varnell argues that the circuit court erred in denying her motion for JNOV on O’Connor’s sexual-harassment claim asserted against her under Section 1983. In order to state “a viable claim under § 1983, ‘a plaintiff must (1) allege a violation of rights secured by the Constitution of laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.’ ” Sexual harassment is actionable under Section 1983.

¶ 21. Importantly, the Supreme Court has clearly stated that a plaintiff claiming sexual harassment “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination] ... because of ... sex.’ ” A sexual-harassment claim may be either quid pro quo or based on an alleged hostile working environment. To succeed on a quid pro quo claim, a plaintiff must show that “(1) he suffered a tangible employment action and (2) the tangible employment action resulted from his acceptance or rejection of his supervisor’s alleged sexual advances.” O’Connor presented no evidence at trial that would support a finding that he had suffered a “tangible employment action” as a result of his rejection of Varnell’s alleged sexual advances. Therefore, the circuit court’s ruling focused on whether O’Connor had presented sufficient evidence to prevail on a sexual-harassment claim based on a hostile work environment. Likewise, we focus our analysis on whether the trial court properly denied Varnell’s motion for JNOV on the basis of hostile work environment.

¶ 22. To succeed on a hostile-work-environment claim, a plaintiff must show “five elements: (1) the plaintiff belongs to a protected group; (2)[he] was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment affected a term, condition, or privilege of [his] employment; and (5)[his] employer knew or should have known of the harassment and failed to take prompt remedial action.” To show a discriminatory change in terms, conditions, or privileges of employment, a plaintiff must prove that the sexually objectionable conduct complained of was so “severe or pervasive” that it “destroys a protected classmember’s opportunity to succeed in the workplace.” Furthermore, “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.”

¶ 23. The U.S. Supreme Court has emphasized that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” While we recognize that the determination as to whether sexual harassment affects a term or condition of employment is not an “exact science,” courts “look to (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating as opposed to a mere offensive utterance; (4) whether it unreasonably interferes with an employee’s work performance; and (5) whether the complained-of conduct undermines the plaintiffs work place competence.”

¶ 24. In denying Varnell’s motion for JNOV, the circuit court determined that the evidence of sexual harassment was not so deficient “that the necessity of the trier of fact had been obviated.” We disagree. O’Connor complained of only two instances in which he claims Varnell sexually harassed him. Neither of those instances involved physically threatening conduct nor did they interfere with O’Connor’s work performance. Viewed in the light most favorable to O’Connor, the Subway sandwich incident involved Varnell saying “You’re so nasty, you’re so nasty,” after O’Connor offered her six inches of his foot-long sandwich. The hotel incident involved Varnell touching O’Connor’s arm and offering him the extra bed in her room after she heard other coaches teasing O’Connor about spending the night in a hotel room with another man they suspected to be homosexual, and after she heard O’Connor express his discomfort with the hotel arrangements. It was never alleged that O’Connor felt sexually harassed by Varnell at any time other than these two incidents.

¶ 25. The Fifth Circuit Court of Appeals has held conduct much worse than Varnell’s to be neither severe nor pervasive enough to constitute an actionable hostile-work-environment claim. In Shepherd v. Comptroller of Public Accounts, the Fifth Circuit found that a coworker’s comments to an employee that “your elbows are the same color as your nipples,” that “you have big thighs” while simulating looking under her dress, trying to look down her clothing, touching her arm on several occasions and rubbing his hand down her arm, and remarking on two occasions when the employee arrived late to a meeting, saying “here’s your seat” while patting his lap, were not, as a matter of law, pervasive or severe enough to constitute a hostile work place.

¶ 26. In Hockman v. Westward Communications, LLC, the Fifth Circuit held, as a matter of law, that the appellant could not establish a hostile-work-environment claim based upon her allegations that a coworker had slapped her on the behind with a newspaper, had grabbed or brushed against her breasts and behind, had asked her to come to work early so they could be alone, and once had held her cheeks and attempted to kiss her, because the conduct was not severe or pervasive enough to affect the terms, conditions or privileges of her employment. Likewise, the Fifth Circuit held in Russell v. University of Texas of the Permian Basin, 234 Fed. Appx. 195 (5th Cir.2007), that an employee’s allegations that a coworker twice had rubbed the side of her hand and thigh, twice had implied that she wanted to move to New York City with the employee, once had said she wanted to watch a movie in bed with the employee, and had called the employee “honey” and “babe” on numerous occasions did not constitute an actionable sexual-harassment claim because the allegations were “no more severe than those in previous cases where this court has held that the employee did not demonstrate a hostile work environment.”

¶ 27. We find, as a matter of law, that O’Connor did not present sufficient evidence to support a jury’s finding that the two incidents complained of were either severe or pervasive enough to amount to discriminatory changes in the terms, conditions, or privileges of his employment. Rather, we find that the two incidents, viewed in the light most favorable to O’Connor, amounted to no more than “simple teasing, offhand comments, and isolated incidents,” which the Supreme Court has clearly stated are not actionable under Title VII, and, by extension, not actionable under Section 1983. Therefore, we find the circuit court erred in denying Varnell’s motion for JNOV on the sexual-harassment claim, and we reverse and render judgment in Varnell’s favor.

C. Due Process

¶ 28. The circuit court correctly held on summary judgment that Vincent and Mollaghan had no constitutionally protected property interest in continued employment with USM under Mississippi law. The circuit court also granted summary judgment on Vincent’s claim he was deprived of unspecified liberty interests. The only due-process claims allowed to go to trial were Vincent and Mollaghan’s claims that they were deprived of their right to procedural due process during the terms of their 1999-2000 contracts. Vincent and Mollaghan have not appealed the summary judgment order.

¶ 29. Vincent and Mollaghan argue that the circuit court erred by granting JNOV and finding the evidence was insufficient to support a jury verdict on their procedural-due-process claim. We have held that, to prevail on a procedural-due-process claim, a plaintiff must prove “(1) he was deprived of a protected property interest and (2) he was denied the process due him.” The Supreme Court has explained, “the Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” The Supreme Court additionally described a protected property interest as being:

more than an abstract need or desire for [a benefit]. [A person] must have more than a unilateral expectation of it. He must, instead, have a legitimate claim or entitlement to it.

Property interests are created and defined by state law. Therefore, to determine whether Vincent or Mollaghan was deprived of his right to procedural due process under the terms of his contract at issue, we must first determine whether Vincent or Mollaghan was deprived- of a protected property interest in his 1999-2000 contract, as defined by Mississippi law.

¶ 80. Vincent and Mollaghan argue that they were entitled to a hearing and investigation on their grievances under their employment contracts and USM’s staff handbook. They further allege that their rights to procedural due process were violated because they were not provided such a hearing or investigation. However, assuming arguendo that Vincent and Molla-ghan were entitled to a hearing and/or investigation on their grievances, which they did not receive, neither Vincent nor Mollaghan has identified any protected property interest in his 1999-2000 employment contract that he lost as a result.

¶ 81. The evidence is undisputed that Vincent and Mollaghan’s 1999-2000 employment contracts were not terminated early, and that both were fully compensated under their contracts at issue in this case. As neither Vincent nor Mollaghan suffered any property loss under his contract, neither can show the deprivation of a property right or that he suffered any compensable damage as the result of his alleged deprivation of procedural due process. Therefore, we find that there was insufficient evidence to support the jury verdicts in their favor, and we affirm the circuit court’s order granting JNOV on these claims.

D. Gender Discrimination

¶ 32. Vincent and Mollaghan argue that the circuit court erred in granting the defendants’ motion for JNOV on their claims of gender discrimination asserted under Section 1983 against Varnell and Giannini. Title VII of the Civil Rights Act of 1964 makes it “unlawful” for “an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” To show a prima facie ease of discrimination, “a plaintiff must prove that: (1)[he] is a member of a protected class; (2)[he] was qualified for the position that [he] held; (3)[he] was discharged; and (4) after being discharged, [his] employer replaced him with a person who is not a member of the protected class.”

¶ 33. In this case, Vincent and Molla-ghan argue they were discharged because of their gender. However, the evidence, taken in the light most favorable to both Vincent and Mollaghan, did not show that either was “discharged” — Vincent remained employed by USM until his contract expired, and his contract was not renewed; Mollaghan accepted another position prior to the expiration of his contract, which actually was extended for thirty days. Furthermore, assuming ar-guendo that Vincent and Mollaghan did make a prima facie showing that they were “discharged,” the evidence is undisputed that neither Vincent nor Mollaghan was replaced with a female. Vincent was replaced as head coach with Mollaghan, and Mollaghan was replaced as interim head coach with Matt Clark. Vincent and Mollaghan argue they were “ultimately” replaced with a female because USM hired a female to replace Matt Clark as head coach after four years.

¶ 34. We find that neither Vincent nor Mollaghan presented sufficient evidence to establish a prima facie case of gender discrimination. Therefore, we affirm the circuit court’s grant of JNOV on these claims.

E. Retaliation

¶ 35. Vincent and Mollaghan argue that the circuit court erred in granting JNOV on their retaliation claims asserted under Section 1983, alleging they were retaliated against for reporting the alleged sexual harassment. To establish a prima facie case for retaliation, a plaintiff must show “(1) that [he] engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action.” An employee engages in a protected activity, among other ways, if he opposes any practice made unlawful under Title VII. To show adverse employment action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” ’ ”

¶ 36. When considering a retaliation claim, courts apply burden-shifting analysis originally articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff establishes a pri-ma facie case for retaliation, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant produces a nondiscriminatory reason, then the burden shifts back to the plaintiff to prove that he would not have suffered the adverse action “but-for” the protected activity. “In other words, even if a plaintiff’s protected conduct is a substantial element in a defendant’s decision to terminate an employee, no liability for unlawful retaliation arises if the employee would have been terminated even in the absence of the protected conduct.” Importantly, temporal proximity between the protected activity and the adverse employment action, standing alone, cannot be “sufficient proof of but-for causation.”

¶ 37. Vincent and Mollaghan argue that the “but-for” test is no longer required for a plaintiff to prevail on a retaliation claim, and that they could succeed as long as they could show their protected activity was a “motivating factor” and the employer had a “mixed motive” for the adverse employment action, citing Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010).

¶ 38. However, the “motivating factor” test applies only at the prima facie stage of the case. There are differing standards of causation within the McDonnell Douglas framework, and the standard of causation is more stringent with regard to the ultimate question of whether the protected activity was a “but-for” cause of the adverse employment decision. As the Fifth Circuit has recognized, the “mixed-motive approach as applied in the retaliation context preserves an employer’s ability to escape liability by refuting but-for causation.” The “mixed motives” or “motivating factor test” is “best viewed as a defense for an employer — once the employee presents evidence that an illegitimate reason was a motivating factor, even if not the sole factor for the challenged employment action — to show that it would have made the same decision even without consideration of the prohibited factor.”

¶ 39. However, once a trial on the merits has occurred, as in this case, the “adequacy of each party’s showing at each stage of the McDonnell Douglas ritual is unimportant.” The only question we need consider is “whether the plaintiff has met his ultimate burden of proving that the adverse employment action complained of resulted from retaliatory intent.” That is, did Vincent and Mollaghan present sufficient evidence to show that the complained — of employment actions would not have occurred in the absence of their protected activities?

1. Vincent’s Claim

¶ 40. Vincent argues that he suffered adverse employment action when he was reassigned and his contract was not renewed, after he engaged in protected activity by reporting Varnell’s alleged sexual harassment of O’Connor. Assuming arguendo that Vincent’s reassignment from head coach of the women’s soccer team to a teaching position and the non-renewal of his contract were materially adverse employment actions, Vincent has presented insufficient evidence to show that the employment actions would not have occurred if he had not reported the alleged sexual harassment.

¶ 41. Vincent argues that he was reassigned shortly after he reported the alleged sexual harassment. However, it is undisputed that Varnell received complaints from several members of the women’s soccer team regarding Vincent’s coaching performance and conduct in early November 1999, before Vincént reported the alleged sexual harassment. The student athletes were interviewed separately to investigate their complaints and to attempt to resolve the matter. Vincent did not report the alleged sexual harassment until after the interviews took place, around the same time as he received a summary of what Varnell had discovered during the interviews.

¶ 42. In December 1999, after Vincent reported the alleged sexual harassment, Giannini, Vincent, and Varnell met to address the athletes’ concerns. Vincent was not removed as head coach until after a second, unsuccessful meeting to address the complaints about Vincent. Although the evidence, taken in the light most favorable to Vincent, showed that he was reassigned some time after he reported Varnell’s alleged sexual harassment, the evidence also showed that Varnell and Giannini were aware of and investigating student-athlete complaints regarding Vincent’s coaching conduct prior to Vincent’s reporting the alleged sexual harassment. Furthermore, Varnell and Giannini testified that Vincent was reassigned and his contract was not renewed because of the numerous complaints received from student athletes and their parents regarding Vincent’s coaching conduct, and Vincent’s inability to repair his relationship with the student athletes. Vincent provided no evidence to refute these reasons.

¶ 43. In short, Vincent has not presented sufficient evidence that he would not have been reassigned and his contract would have been renewed had he not reported Varnell’s conduct. Therefore, we find that there was insufficient evidence to support the jury’s finding on Vincent’s retaliation claim, and we affirm the circuit court’s grant of JNOV.

2. Mollaghan’s Claim

¶ 44. Mollaghan argues he suffered an adverse employment action, ie., not being hired as the head coach for the women’s soccer team, because he filed a grievance alleging Varnell had engaged in improper conduct. However, Mollaghan failed to present evidence that he suffered any adverse employment action. The evidence is undisputed that Mollaghan was promoted to interim head coach and remained interim head coach after he had filed his grievance. He remained interim head coach until he accepted a position at another school before his contract expired. Furthermore, his contract was extended for thirty days after he filed his grievance to ensure he did not have any problems with his work visa while he switched employers.

¶ 45. To the extent that Mollaghan alleges he experienced adverse employment action when he was not selected as head coach, he also failed to present sufficient evidence to prove a casual link between his protected conduct and the adverse action. For a plaintiff to prove his protected conduct was the “but-for” cause of his not being selected for a certain position, a plaintiff must prove that he was the “clearly better qualified” candidate for the position. In other words, a plaintiff must show that “the disparities in qualifications are of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the selected candidate over the plaintiff for the job in question.”

¶46. Although the evidence, taken in the light most favorable to Mollaghan, showed that he was qualified for the position, it did not meet the standard to show he was the “clearly better qualified” candidate. The evidence showed that Giannini hired Clark because he believed Clark was the most qualified candidate with the most experience, and Mollaghan presented no evidence to dispute Varnell and Giannini’s testimony that Clark was the most qualified candidate. Therefore, we find there was insufficient evidence for the jury to find in favor of Mollaghan on his retaliation claim, and we affirm the circuit court’s grant of JNOV on Mollaghan’s retaliation claim.

CONCLUSION

¶ 47. We find that there was insufficient evidence to support the jury’s verdict in favor of O’Connor on his sexual-harassment claim; therefore, we reverse the circuit court’s order denying Varnell’s motion for JNOV on that claim and render judgment in her favor. We also find that there was insufficient evidence to support the jury’s verdicts in favor of Vincent and Mollaghan on their claims asserting deprivation of their procedural-due-process rights, gender discrimination, and retaliation. Therefore, we affirm the circuit court’s order granting the defendants’ motion for JNOV on these claims. The judgment of the Circuit Court of Forrest County, is affirmed in part and reversed and rendered in part.

¶ 48. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND KING, JJ„ CONCUR. PIERCE, J., NOT PARTICIPATING.

      . O'Connor formally filed a written grievance regarding Varnell's alleged sexual harassment on April 20, 2000, four to five months after the complained-of conduct occurred.

      . Only Vincent asserted a claim against Fleming in his individual capacity.

      . The circuit court’s order on the defendants' motion for summary judgment has not been appealed.

      . The circuit court noted that, while it appeared to the circuit court that only O’Connor had pleaded a retaliation claim in his complaint, the defendants conceded that Vincent and Mollaghan also had asserted retaliation claims.

      .The only state-law claim allowed to go to trial was O’Connor’s claim of tortious interference with his employment contract at the University of Louisiana-Monroe, which is not at issue in this appeal.

      . The circuit court also left the jury’s damages award to O'Connor undisturbed, even though it was based upon the jury’s verdict in his favor on three claims, two of which were overturned.

      . Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 63 (Miss.2004) (citations omitted).

      . Id.

      . Id.

      . Estate of Jones v. Phillips, 992 So.2d 1131, 1146 (Miss.2008) (citations omitted).

      . Wilson, 883 So.2d at 63 (citations omitted).

      .While Mississippi courts may exercise jurisdiction over federal claims brought under Section 1983, the elements of the claims and defenses against them are governed by federal law. East Mississippi State Hosp. v. Callens, 892 So.2d 800 (Miss.2004) (citation omitted). Furthermore, "[sjection 1983 and Title VII [of the Civil Rights Act of 1964] are ‘parallel causes of action’ therefore, the inquiries and standards for claims brought under Section 1983 and Title VII are the same. Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir.2007) (quoting Cervantez v. Bexar County Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir.1996)).

      . Lauderdah v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 165 (5th Cir.2007) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994)). The parties do not dispute that the defendants were acting under color of state law at the time of the conduct giving rise to the plaintiffs’ various Section 1983 claims.

      . Lauderdale, 512 F.3d at 165-66.

      . Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (emphasis in original).

        . La Day v. Catalyst Tech., Inc., 302 F.3d 474, 481 (5th Cir.2002).

      . Hockman v. Westward Commc'ns., LLC, 407 F.3d 317, 325 (5th Cir.2004) (citation omitted).

      . Id. at 326 (citation omitted).

      . La Day, 302 F.3d at 482.

      . Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citations omitted).

      . Mire v. Texas Plumbing Supply Co., 286 Fed.Appx. 138, 141 (5th Cir.2008).

      . Hockman, 407 F.3d at 325-26 (citation omitted).

      . Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 872-75 (5th Cir.1999).

      . Hockman, 407 F.3d at 328-29.

      . Id. at 205.

      . Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted).

      . See Wicks v. Miss. Valley State Univ., 536 So.2d 20, 23 (Miss.1988) (nontenured college teacher has no protected property interest in his job); Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1170 (Miss.Ct.App.2007) ("nontenured faculty, whether they be tenure-track or non-tenure-track, do not have a protected property interest in continued employment either by legislation or regulations") (citations omitted).

      . Akins v. Miss. Dep’t of Revenue, 70 So.3d 204, 208 (Miss.2011) (citation omitted).

      . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548 (1972).

      . Id. at 577, 2709.

      . Id.

      . To the extent that Vincent argues he lost his property right to continue as the head coach of the women's soccer team until his contract expired, without an opportunity for a hearing, this issue is without merit. Vincent’s contract clearly allowed him to be reassigned and did not guarantee that he would serve as head coach through the entirety of the contractual period; therefore, Vincent had no enforceable contractual right to the position of head coach.

      . Vincent and Mollaghan argue they could have "retained their positions” had they been afforded a hearing on their grievances; however, as the circuit court found on summary judgment, neither had a protected property interest in continued employment with USM.

      . 42 U.S.C.2000e-2(a)(l). As previously stated, Section 1983 and Title VII are parallel causes of action, and the inquiries and standards are the same for claims asserted under either statute. Lauderdale, 512 F.3d at 165-166.

      . Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995).

      . See Dean v. Property One Inc., 51 Fed.Appx. 929 (5th Cir.2002) (holding that female plaintiff who produced no evidence she was replaced by a male, failed to "establish a prima facie case for gender discrimination”).

      . Section 1983 and Title VII are parallel causes of action, and the inquiries and standards are the same for claims asserted under either statute. Lauderdale, 512 F.3d at 165— 166.

      . Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996) (citation omitted).

      .42 U.S.C.2000e-3(a).

      . Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (citations omitted).

      . Long, 88 F.3d at 304-05.

      . Nunley v. City of Waco, 440 Fed.Appx. 275 (5th Cir.2011).

      . Long, 88 F.3d at 305 n. 4 (citing Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984)).

      . Strong v. Univ. Healthcare Sys., 482 F.3d 802, 808 (5th Cir.2007) (citation omitted).

      . Nunley, 440 Fed.Appx. at 281.

      . Id.See also McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Strong, 482 F.3d at 808 (recognizing that temporal proximity, standing alone, could be enough to make out a prima facie case for retaliation, but is not enough to be sufficient proof of but-for causation).

      . Nunley, 440 Fed.Appx. at 281.

      . Xerox, 602 F.3d at 333.

      . Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir.2000) (quoting Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.1993).

      . Rubinstein, 218 F.3d at 402.

      . See Burlington Northern, 548 U.S. at 70-71, 126 S.Ct. at 2416-17 (finding that reassignment of employment responsibilities can constitute retaliatory discrimination under certain circumstances).

      . Sabzevari v. Reliable Life Ins. Co., 264 Fed.Appx. 392, 396 (5th Cir.2008).

      . Gillaspy v. Dallas Indep. Sch. Dist., 278 Fed.Appx. 307, 313 (5th Cir.2008).