author: COLEMAN, JUSTICE,

text:
    Edward SPRINGER v. AUSBERN CONSTRUCTION CO., INC.
    NO. 2014-CT-01190-SCT
    Supreme Court of Mississippi.
    10/19/2017

      REX F. SANDERSON, BARRETT JEROME CLISBY, ATTORNEYS FOR APPELLANT
    MARK D. HERBERT, SABRINA BO-SARGE RUFFIN, BRADFORD COLEMAN RAY, ATTORNEYS FOR APPEL-LEE
   ON WRIT OF CERTIORARI

COLEMAN, JUSTICE,

FOR THE COURT:

... ¶ 1..A Lafayette County jury awarded Ausbern Construction Company, Inc. (Aus-bern) a verdict of $182,500 against Chickasaw County Engineer Edward Springer in his individual capacity for tortious interference with a road-construction contract. On appeal, the Mississippi Court of Appeals reversed the $182,500 judgment and rendered judgment in favor , of Springer. Springer v. Ausbern Constr. Co., Inc., 231 So.3d 1065, 1066 (¶ 1), 2016 WL 4083981, at *1 (¶ 1) (Miss. Ct. App. Aug. 2, 2016). The Court of Appeals held that the element of tortious interference that constitutes malice was not satisfied because Springer’s actions were not without right or justifiable cause. Id.

¶ 2. Although the lack of evidence demonstrating malice was 'dispositive to the decision to reverse and render, a majority of the Court of Appeals alternatively held that Ausbem’s claim against Springer had implicated the Mississippi Tort Claims Act and the trial court had erred by failing to grant Springer’s motion to dismiss due -to lack of presuit notice. Id. Our review of the record does not support the Court of Appeals’ conclusion that Springer raised the issue of presuit notice in his motion to dismiss. Although .Springer raised lack of notice .as an affirmative defense in his answer to Ausbern’s first amended, complaint, he simply argued that he was entitled to immunity in- support of his motion to dismiss. While we dp not disturb the dispositive holding reached by the Court of Appeals resulting in the rendered judgment. in favor of Springer, we grant Aus-bern’s petition for writ, of certiorari resolve the Court of Appeals’ perceived conflict between Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss. 2009), and Whiting v. University of Southern Mississippi, 62 So.3d 907 (Miss. 2011).

¶ 3. In short, we hold that Whiting did not overrule, sub silentio, Zumwalt as the Court of Appeals presumed in reaching its alternative holding. See Springer, 231 So.3d at 1071 (¶ 22), 2016 WL 4083981, at *6 (¶ 22). To be certain, we overrule Whiting to the extent it held that a claim for tortious interference with a contract is subject to presuit notice requirements of the Tort Claims Act. As more fully explained below, Ausbern’s claim against Springer in his individual capacity for tor-tious interference with the contract did not trigger the presuit notice requirements of the Tort Claims Act.

FACTS AND PROCEDURAL HISTORY

¶4. In November 2010, Ausbern was awarded a contract with Chickasaw County for a road-construction project. Aus-bern’s low bid for the contract was based on unit specifications prepared by the office of Chickasaw County’s engineer, Springer. Springer had estimated that 7,689 cubic yards of 304A fill material would be required. The project actually required 17,700 cubic yards of the unit material.

¶ 5. On January 23, 2012, Ausbern filed a formal claim for payment for the overage with the State Aid Office. On February 2, 2012, State Aid Division Engineer Joel Bridges sent a letter to Springer, acknowledging the error of the estimated quantity of the unit material. Bridges recommended payment to Ausbern for 17,700 cubic yards of the unit material at the contract price per unit. On March 1, 2012, Springer sent a letter to Ausbern admitting the discrepancy between the estimated amount of unit material and the unit material actually used for the project. In an effort to mitigate Ausbern’s claim for the contract adjustment, Springer offered Ausbern eight dollars per cubic yard for the overage rather than the contract unit price of $19.50. Ausbern declined to negotiate.

¶ 6. On March 29, 2012, Ausbern filed a complaint against the Board of Supervisors of Chickasaw County, alleging breach of contract. On July 12, 2012, Ausbern filed an amended complaint adding Springer as a defendant in his individual capacity for tortious interference with the contract. Ausbern alleged that a binding contract existed between Ausbern and the County as of November 23, 2010. Ausbern alleged that Springer, who had knowledge of the contract, intentionally, willfully, and with malice toward Ausbern induced the County to breach its contractual obligations. On August 15, 2012, Springer filed an answer to the amended complaint, arguing that Ausbern had not complied with the notice requirements of the Tort Claims Act.

¶ 7. The jury awarded Ausbern $387,793.50 against the County for breach of contract. The County did not appeal the judgment. The jury awarded Ausbern $182,500 against Springer for tortious interference with the contract. Springer appealed following the trial court’s denial of his motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial.

¶ 8. On appeal, the Court of Appeals reversed the $182,500 judgment against Springer and rendered judgment because the element of tortious interference that constitutes malice was not satisfied. Springer, 231 So.3d at 1066, 1071 (¶¶ 1, 22), 2016 WL 4083981, at **1, 5 (¶¶ 1, 22). A unanimous Court of Appeals held that

Springer acted within the scope of his responsibility to the County and without bad faith. Because his actions were not “without right or justifiable cause,” the element of tortious interference that constitutes malice was not satisfied.

Springer, 231 So.3d at 1066, 2016 WL 4083981, at *1. Despite Ausbern’s claim against Springer for tortious interference with the contract failing as a matter of law due to no evidence of malice, an essential element of the tort, the Court of Appeals proceeded to address a separate issue not necessary to its decision.

¶ 9. According to a majority of the Court of Appeals,

Springer argued pretrial in his motion to dismiss and argues again here on appeal that the tortious-interference claim against him as a governmental employee implicated the Mississippi Tort Claims Act and that Ausbern was therefore required to comply with the Act’s pre-suit notice requirements. See Miss. Code Ann. § 11-46-11(1) (Rev. 2012); Ivy v. E. Miss. State Hosp., 191 So.3d 120, 122 (¶ 8) (Miss. 2016). We agree with Springer’s argument that the notice requirements of the Mississippi Tort Claims Act are applicable to the claim against him.

Springer, 231 So.3d at 1070 (¶ 17), 2016 WL 4083981, at *4 (¶ 17).

¶ 10. Relying on language from Whiting, the majority took the position “that claims of tortious interference with a contract brought against an individual governmental employee implicate the pre-suit notice requirements of the [Tort Claims Act].” Id. at 1070 (¶ 18), at *4 (¶ 18) (citing Whiting, 62 So.3d at 915 (¶ 15)). The majority held that the claim against Springer implicated the Tort Claims Act, and that Springer’s motion to dismiss due to lack of presuit notice should have been granted. Id. at 1066 (¶ 1), at *1 (¶ 1). The majority ultimately concluded that, “[a]bsent resolution of any conflict between [Whiting and Zumwalt] by the Mississippi Supreme Court, we agree with the approach of treating Whiting as the applicable rule.” Springer, 231 So.3d at 1071 (¶22), 2016 WL 4083981, at *5 (¶22). And because “the prerequisite of statutory pre-suit notice was not attempted, [ ] waiver of sovereign immunity was not accomplished.” Id.

¶ 11. In contrast, Judge Wilson’s separate opinion urged that, “by proceeding against Springer individually without serving notice under the [Tort Claims Act], Ausbern was simply following the clear holding of the Mississippi Supreme Court’s opinion in Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss. 2009).” Springer, 231 So.3d at 1072 (¶26), 2016 WL 4083981, at *6 (¶26) (Wilson, J., concurring in part and in result). Following Zumwalt, Judge Wilson determined that “Ausbern properly sued Springer ‘as an individual’ on a non-[Tort Claims Act] claim for tortious interference with a contract — indeed, per Zumwalt, Ausbern was required to pursue the claim on that basis.” Id. at 1072-73 (¶27), at*6 (¶27). Judge Wilson concluded that, because malice is an essential element of a claim for tortious interference with a contract, the County was immune from liability for any alleged tortious interference by Springer, and Ausbern properly proceeded against Springer individually rather than serving presuit notice on the County. Id. at 1073 (¶ 28), at *7 (¶ 28). Judge Wilson relied on Zumwalt because it followed directly and logically from the plain language of the Tort Claims Act, but he agreed with the majority that Whiting “appears to conflict with Zumwalt insofar as it suggests that a claim for tortious interference with a contract is subject to the [Tort Claims Act].” Id. at 1073 (¶ 29), at *7 (¶29).

¶ 12. While the lack of proof of malice was case-dispositive, we grant certiorari to clarify whether Whiting overruled, sub si-lentio, Zumwalt’s holding that a claim for tortious interference with a contract is not subject to the Tort Claims Act’s presuit notice requirements.

STANDARD OF REVIEW

¶ 13. “When considering a motion to dismiss, this Court’s standard of review is de novo.” Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006).

DISCUSSION

Whether Ausbern’s claim for tortious interference with a contract was subject to the presuit notice requirements of the Tort Claims Act.

¶ 14. The Tort Claims Act provides immunity for the state and its political subdivisions “from suit at law or in equity on account of any wrongful or" tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political' subdivisions, or any such act, omission or breach by any employee of the state or its political subdivision[.]” Miss. -Code Ann. § 11-46-3(1) (Rev. 2012). The Tort Claims Act waives immunity for the state and its political subdivisions “from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the cburse and scope of their- employment[J” Miss, Code Ann. § 11-46-5(1) (Rev. 2012).

¶ 15. “An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope’of the employee’s duties,” Miss. Code Ann. § 11-46-7 (Rev. 2012). However, “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation[.]” Miss. Code Ann. § 11-46-5(2) (Rev. 2012).

¶ 16. Before Zumwalt. and Whiting, the Court decided McGehee v. DePoyster, 708 So.2d 77 (Miss. 1998). In McGehee, an elementary school principal brought a defamation action against the superintendent of the school district both individually and in his official capacity. Id. at 78 (¶ 1). As in the case sub judice, the issue before the Court was whether the Tort Claims Act’s notice provision of Mississippi Code Section 11-46-11(1) (Rev. 2012) was applicable to actions brought against a government employee in his individual capacity. Id. at 79 (¶8). Section 11-46-11(1) requires a person to file a notice of claim with the chief executive officer of the governmental entity at least ninety.days before instituting suit. Miss. Code - Ann. § 11-46 — 11(1) (Rev. 2012).

¶ 17. The Court examined the pertinent provisions of the Tort Claims Act and concluded that “Sections 11-46-5(2) and 11-46-7(2) expressly provide that an employee shall not be considered as acting within the scope and course of his employment for conduct amounting to defamation, libel and"slander, the very charges brought by [the plaintiff] against [the government employee defendant].” Id. at 81 (¶ 11). The Court did “not construe [Section] 11 — 46—11(1) as requiring notice to [the government employee defendant] or other government authorities of suit brought against him individually for acts outside of the scope of his employment.” Id.

¶ 18. The Court held that “an, action against a government employee in his individual capacity may be subject to notice of claim requirements if. the act complained of occurred, within the scope and course of his employment[.]” Id. at 80 (¶ 10) (“Where the plaintiff elects to sue the governmental employee in her individual capacity, notice is required only if the act or omission causing the plaintiffs loss is within the scope of the defendant’s . employment.”)). Accordingly, the Court concluded that the “notice provisions of [Section] 11-46-1(1) [were] not applicable to a government employee sued in his individual capacity for actions not within his scope of employment[.]” Id. at 78 (¶ 1),

¶ 19; In Zumwalt, Donna Zumwalt asserted counterclaims for tortious interference with contracts and business relations against the Jones County Board of Supervisor’s. Zumwalt, 19 So.3d at 688 (¶79). The trial court found that her claims were not properly before it because Zumwalt had failed to comply with the Tort Claims Act’s notice provision of Section 11-46-11 before she had asserted her counterclaim. Id. at 688 (¶ 80).

¶ 20. The Court held; “[w]ith respect to the claim of tortious interference with business relations and/or contracts, the [Tort Claims Act] does not apply.” Zumwalt, 19 So.3d at 688 (¶81). The Court explained:

The [Tort Claims Act] provides immunity for the alleged torts of governmental entities. Miss. Code Ann. § 11-46-3 (Rev. 2002), However, the [Tort Claims Act] waives that immunity, and the governmental entity is liable, for injuries caused by the entity or its employees while acting in the course and scope of their employment. Miss. Code Ann. § 11-46-5(1) (Rev; 2002). - ■
Certain intentional torts are excluded from the [Tort Claims Act]’s waiver of immunity. Subsection (2) of Mississippi Code Section 11-46-5 provides that torts constituting fraud, malice, libel, slander, defamation, or any criminal offense other than traffic violations are not. within the course and scope of employment. Miss. Code Ann. § 11-46-5(2) (Rev. 2002). Thus, these intentional torts are outside the scope of the [Tort Claims Act]’s waiver of immunity, and the [Tort Claims Act] does not apply.
Tortious interference with business relations and contracts requires proof' of malice as an essential element. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss. 1998), and Biglane v. Under the Hill Corp., 949 So.2d 9, 16 (Miss. 2007). Therefore, the [Tort Claims Act] does not apply to these torts, and any legal action against a governmental employee for these intentional torts must necessarily proceed against him or her as an individual.

Zumwalt, 19 So.3d at 688 (¶¶ 81-84).

¶ 21. The Court held that, to the'extent the trial court had determined that notice was required before pursuing claims of tortious interference with either business relations or contracts, it was error, albeit harmless error because there ‘ were no facts to supp'ort Zumwalt’s claims. Id. at (¶ 85).

¶ 22. Less than two years after Zumwalt, the Court decided Whiting. Whiting, 62 So.3d 907. In Whiting, a nontenured professor at the University of Southern Mississippi, Dr. Melissa Whiting, "was denied tenure and promotion at the end of her sixth year at the university after participating in the tenure application process laid out in the faculty handbook. Dr. Whiting filed a complaint, alleging that the denial arose from ill will between her and her department chair, Dr. Dana Thames, the daughter of the university president, Dr. Shelby Thames. Whiting v. Univ. of S. Miss., 451 F.3d 339, 340 (5th Cir. 2006). Dr. “Whiting complained of violations of her constitutional rights and also raised “breach of contract and other claims under state law.” Id. at 343. The case was removed to federal district court, which dismissed her constitutional claims on a motion for summary judgment and remanded the state-law claims to state court. Id. The state trial court dismissed Dr. Whiting’s claims against the Mississippi Board of Trustees of Institutions of Higher Learning, the University of Southern Mississippi, Dr. Shelby Thames, Dr. Dana Thames, and Dr. Carl Martray. Whiting, 62 So.3d at 910 (¶ 1). Dr. Whiting appealed, and the Court affirmed. Id.

¶ 23. The Court held that, as a matter of law, no contract was formed between Dr. Whiting and the Board with respect to an offer of tenure to the extent that Dr. Whiting’s claims were based purely upon a breach of contract theory. Id. at 915 (¶ 13). Although the Court made no mention of Zumwalt, McGehee, or malice as an essential element of tortious interference with a contract, the Court said:

At the cire, Dr. Waiting's argument, to the extent that it makes out a specific claim for relief, is that her contract with the Board, as memorialize4 in the handbook, guaranteed a fair and impartial hearing with respect to her tenure application, and the defendants denied her that opportunity. While [Dr. Whiting] attempts to characterize [her] claims as breach of contract, a fair reading of the facts of this case and the manner in which [she] lays out her argument establish that if there were a claim to be made, it would be for tortious breach of contract and tortious interference with contract. As such, the claims madé against the Board or the university are governed by the provisions of the [Tort Claims Act].

Whiting, 62 So.3d at 915 (¶ 15).

¶ 24. The Court acknowledged that the Board was “immune from suit at law or in equity on account of any wrongful' or tor-tious act or omission or breach of implied term or condition of any warranty or contract[.]” Id. at 915 (¶ 16) (quoting Miss. Code Ann. § 11-46-3(1)). The Court continued: “We have interpreted the phrase ‘any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract’ to mean that the [Tort Claims Act] covers both tortious breaches of contract and breaches of implied terms and warranties of a contract.” Whiting, 62 So.3d at 916 (¶ 17) (citing City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 710 (Miss. 2005)).

¶25. The Court noted that the Tort Claims Act provides a limited waiver of immunity for claims arising from tortious acts of governmental agencies and their employees. Whiting, 62 So.3d at 916 (¶ 16). However, the Court also noted that the Tort Claims Act provides that a notice of claim must be brought only after all administrative remedies have been exhausted. Id. at 916 (¶ 17) (citing Miss. Code Ann. § 11-46-11). The Court recognized that the failure to complete the internal grievance -process for an alleged wrongful termination does not satisfy the requirement that administrative appeals be exhausted for purposes of the Tort Claims Act. Id. Because Dr. Whiting failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit, the Court held: “[Dr. Whiting’s] claims based on tortious conduct in general, tortious breach of contract in particular, and breach of an implied contractual term or warranty are foreclosed by her failure to adhere to the requirement of the Mississippi Tort Claims Act that all administrative remedies be exhausted prior to filing suit.” Id. at 919 (¶ 31).

¶ 26. Following Whiting, conflicting decisions have arisen in the federal courts and the Court- of Appeals regarding whether malice-based torts are subject to the Tort Claims Act. See Dearman v. Stone Cty. Sch. Dist., 2014 WL 3747600, at *2 (S.D. Miss. July 29, 2014) (“While Whiting and Zumwalt may appear contradictory, the Mississippi Supreme Court in Whiting did not reference or explicitly overrule Zum-walt. It is therefore unclear whether the Mississippi Supreme Court intended for Whiting to overrule Zumwalt or whether the two cases are somehow distinguishable. The apparent conflict between the two cases has led to inconsistent .decisions by federal district courts applying Mississippi law.”). For example, in Weible v. University of Southern Mississippi, 89 So.3d 51, 64 (¶ 40) (Miss. Ct. App. 2011), the Court of Appeals followed Zumwalt, holding that “to the extent intentional infliction of emotional distress is predicated on malicious conduct, the claim would be outside the scope of the [Tort Claims Act].”'Likewise, the Court of Appeals recently acknowledged that “because the Tort Claims Act expressly does not' apply to claims for defamation or slander, it necessarily follows that the Tort Claims Act’s notice provision does not apply to [the plaintiffs] -slander claim.” Williams v. City of Belzoni, 229 So.3d 171, 177, 2017 WL 908844, at *4 n. 5 (Miss. Ct. App. Mar. 7, 2017) (citing Zumwalt, 19 So.3d at 688 (¶ 85); McGehee, 708 So.2d at 79-81 (¶ 7-11)). To the contrary, the Fifth Circuit Court of Appeals followed Whiting as “the latest and most authoritative expression of state law applicable to the facts of a case.” Johnson v. City of Shelby, Miss., 743 F.3d 59, 64 (5th Cir. 2013), cert. granted, judgment rev’d, — U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014). The Fifth Circuit Court of Appeals held that former police officers’ claims for malicious interference with their employment contracts were barred for failure to comply with the Tort Claims Act’s notice requirements. Id. at 61, 64.

¶ 27. In the case sub judice, the Court of Appeals followed Whiting in reaching its alternative holding, particularly, the language from Whiting indicating that claims for tortious breach of contract and tortious interference with contract were governed by the provisions of the Tort Claims Act. Springer, 231 So.3d at 1070, 1071 (¶¶ 17-19, 22), 2016 WL 4083981, at *4, *5 (¶¶ 17-19, 22).

¶ 28. After reviewing the Court’s opinion in Whiting, we do not perceive the same conflict between Whiting.and Zumwalt as the Court of Appeals did. Significant differences are apparent upon comparing the two decisions. To begin with, the decision in Whiting did not turn , on the presuit notice provision of the Tort Claims Act, therefore, any indication that a' claim for tortious interference with a' contract is subject to the notice requirements of the Tort Claims Act was mere dicta. The: decision in Whiting turned'on the exhaustion provision of Section 11-46-11(1), which requires a claim to be brought only after all administrative remedies have been exhausted. Whiting, 62 So.3d at 916, 919 (¶¶ 17, 31).

¶29. Moreover, Dr. Whiting’s claims generally- were described as “breach of contract and other claims under state law.” Whiting, 451 F.3d at 343. The specific claims brought by Dr. Whiting were not identified. Because “a fair reading of the facts of th[e] case and the manner in which Dr. Whiting la[id] out her argument established] that if there were a claim to be made,” the Court concluded that it “would be for tortious breach of contract and tor-tious interference with contract.” Whiting, 62 So.3d at 915 (¶ 15). The claims as framed by the Court were then properly examined for Tort Claims Act application.

¶ 30. In order to constitute tor-tious breach of contract alleged by a plaintiff, “some intentional wrong, insult, abuse, or negligence so gross as to constitute an independent tort must exist.” Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 66 (¶ 39) (Miss. 2004). In contrast to tortious interference with a contract claim requiring proof of malice as an essential element, a tortious breach of contract claim may be proven without proof of malice. Id. Consequently, a tortious breach of contract claim may be subject to the pre-suit notice- requirements -of the Tort Claims Act. See Zumwalt, 19 So.3d at 689 (¶ 86) (“Conversion, on the other' hand, is an intentional tort that does not require proof of fraud, malice, libel, slander, -or defamation. Thus, conversion is an intentional tort arguably subject to the Tort Claims Act, so pre-suit-notice to the governmental entity of such a claim generally is required.”)) (internal citations omitted). Despite ■ mentioning a claim, for tortious interference with a contract, the Court’s remaining discussion focused on the relabeled tortious breach of contract claim. Whiting, 62 So.3d at 916 (¶ 16) (“We have interpreted the phrase ‘any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract’ to mean that the [Tort Claims Act] covers both tortious breaches of contract and breaches of implied terms and warranties of a contract.”)) (citations omitted) (emphasis added). Indeed, the Court’s holding emphasized that Dr. Whiting’s “claims based on tortious conduct in general, tortious breach of contract in particular, and breach of an implied contractual term or warranty [were] foreclosed by her failure to-adhere to the [notice] requirement of the [Tort Claims Act.]” Id. at 919 (¶ 31).

¶ 31: Like the uncertainty of the specific claims brought by Dr. Whiting, we can only speculate as to whom Dr. Whiting’s claims were against. The only claims addressed by the Court were against the Board and the university. Id. at 915 (¶ 15) (“As such, the claims made against the Board or the university are governed by the provisions of the [Tort Claims'Act].”). Dr. Whiting’s claims against university employees in their individual capacities, if any, were 'not discussed by the Court. We simply cannot say whether Dr. Whiting alleged that certain individuals had acted outside their scope of employment, which would remove them from the protections of the Tort Claims Act. See Zumwalt, 19 So.3d at 688 (¶¶ 83-85); McGehee, 708 So.2d at 81 (¶ 11).

¶ 32. Because the facts and circumstances in Whiting differ, from Zumwalt in a number of significant ways, it is not necessary to overrule. Whiting. As such, we hold that Whiting did not overrule, sub silentio, Zumwalt or McGehee. However, due to the conflicting decisions that have arisen in district courts-and the Court of Appeals, we overrule- Whiting to the extent it held that a claim for tortious- interference with-a contract-is subject to pre-suit notice requirements of the -Tort Claims Act,

¶ 33. In the ease sub judice; Aus-bern filed a complaint against Springer in his individual capacity for tortious interference with the road-construction contract between the County and Ausbern. “The [Tort Claims Act] provides specific exclusions to its protections and requirements, and each claim must be examined for [Tort Claims Act] application,” Zumwalt, 19 So.3d at 688 (¶ 81). The Tort Claims Act waives immunity for injuries caused by governmental employees while acting in the course and scope of their employment. Miss, Code Ann. § 11-46-5(1). However, Section 11-46-5(2) provides that torts constituting malice are not within the course and scope of employment.

¶34. Tortious interference with a contract requires proof of malice as an essential element. Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (¶ 8) (Miss. 1998). As a result, Ausbern’s claim for tortious interference with the road-construction contract against Springer in his individual capacity was not subject to the Tort Claims Act’s presuit notice requirements. McGehee, 708 So.2d at 81 (¶ 11). Ausbem’s claim necessarily was brought against Springer'individually for acts allegedly outside the scope of his employment, and the trial court properly denied Springer’s motion to dismiss due to lack of presuit notice. Id. In light of the relevant provisions of the Tort Claims Act and the Court’s unequivocal decisions in McGehee and Zumwalt, we hold that Aus-bern’s claim against Springer in his individual capacity for acts allegedly outside the scope of his employment are not subject to the presuit notice requirements of Section 11-46-11(1).

CONCLUSION

¶ 35. We affirm the Court of Appeals’ judgment on the dispositive issue of no evidence of malice, an essential element of a claim of tortious interference with a contract. However, for the foregoing reasons, we hold that the 'Court of Appeals erroneously concluded that under Whiting, Aus-bern’s claim was subject to the presuit notice requirements of Section 11-46-11(1).

¶ 36. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, BEAM AND CHAMBERLIN, JJ., CONCUR; MAXWELL AND ISHEE, JJ., NOT PARTICIPATING.

      . Chief Judge Lee, Presiding Judge Griffis, and Judge Fair joined in Judge Wilson's separate opinion.

      . It is undisputed that Ausbern did not provide presuit notice under the Tort Claims Act. Springer, 231 So.3d at 1068, 1073 (¶¶ 7, 28), 2016 WL 4083981 at **2, 7 (¶¶ 7, 28).

      . Additional factual and procedural background information is derived from Whiting v. University of Southern Mississippi, 451 F.3d 339, 352 (5th Cir. 2006) (affirming the district court’s order remanding Dr. Whiting’s pendent state-law claims to state court)).

      . Dr. Martray was the Dean of the College of Education and Psychology.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE,

license: Public Domain

text:
    Bruce COPE, Mary Cope and Ike W. Thrash v. THRASHER CONSTRUCTION, INC.
    NO. 2014-CT-01474-SCT
    Supreme Court of Mississippi.
    11/30/2017

      ATTORNEY FOR APPELLANTS: NICHOLAS VAN WISER
    ATTORNEYS FOR. APPELLEE: TAYLOR B. McNEEL, SAMUEL C. KELLY, KAREN E. HOWELL
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Thrasher Construction, Inc. (Thrasher) brought a third-party beneficiary action against Bruce Cope, Mary Cope, and Ike Thrash (the Copes and Thrash) in the County Court of the First Judicial District of Harrison County. -Thrasher sought damages for payments owed for waterproofing the Inn by the Sea, a condominium in which the Copes and Thrash had acquired a full ownership interest by agreeing, in part, to pay all outstanding bills for work previously performed on the property. During trial, the county court dismissed the third-party beneficiary claim but allowed Thrasher to proceed on a quantum meruit theory of the case. The jury returned a verdict in favor of Thrasher for $69,290, and the county court entered judgment based on that verdict. The Copes and Thrash appealed the judgment to the Circuit Court of the First Judicial District of Harrison County, which affirmed the judgment of the county court. The Copes and Thrash then appealed to the Court of Appeals, arguing the facts do not support a recovery on quantum meru-it. Thrasher cross-appealed, arguing the trial court erred in dismissing its third-party beneficiary claim.

¶ 2. The Court of Appeals held quantum meruit was not the proper method of relief because the action should have proceeded as a third-party beneficiary claim. The Court of Appeals reversed the judgment and remanded for further proceedings consistent with its opinion. We agree the third-party beneficiary action was the appropriate basis for Thrasher’s recovery; however, because the trial court ultimately reached the correct result, no further proceedings are needed in this case.

FACTS AND PROCEDURAL HISTORY

¶ 3. The facts of this case required for review on appeal are adequately set out by the Court of Appeals in its majority opinion. Cope v. Thrasher Const., Inc., 231 So.3d 1046, 1049-50, 2016 WL 3523874, at **1-2 (Miss. Ct. App. June 28/2016).

Inn by- the Sea was destroyed by Hurricane Katrina in 2005. The owners of the individual units engaged Sealnn LLC (Sealnn) to develop a new complex and rebuild. Sealnn consisted of two members, Greg Stewart and Kenny Labelle. The unit owners conveyed their interest in the property to Sealnn in order to begin the project. Sealnn then hired Madison Homes as its general contractor. Greg Stewart is the only known representative of Madison Homes.
In February 2009, Madison Homes contracted with Thrasher Construction in ’order to waterproof Inn by the Sea. Thrasher Construction was to be paid $106,600 for this project, Thrasher Construction worked on the'Inn by the Séa project from April to July of 2009. Each month, it sent an invoice to Madison Homes, but none of the invoices were paid. Eventually, upon completion of sixty-five percent of the work on the Inn by the Sea project, Thrasher Construction stopped work due to nonpayment. Thrasher Construction then filed a Notice of Construction Lien-against the Inn by the Sea property in September 2009. The amount- due at the time that Thrasher- Construction stopped work was $69,290, calculated based on the percentage of the project completed.
Ike Thrash later purchased Labelle’s fifty percent interest in Sealnn. He then signed over part of his interest to Bruce Cope and Mary Cope. After realizing that neither Stewart nor Madison Homes was paying the subcontractors, Cope and Thrash entered into a- settlement agreement with Stewart to remove him, Cope and Thrash agreed to take over and complete certain projects. Cope and Thrash agreed to pay the subcontractors on the Inn by the Sea project to the extent that the invoices provided by Stewart were “true, valid[,] and correct.” Attached to the agreement was a list of unpaid ■ invoices for- each project; Thrasher Construction’s multiple invoices were listed. ■
Cope and Thrash then began to contact the subcontractors. They requested that the subcontractors come to Inn by the Sea during a specific two-day period to verify the work performed. Upon verification, Cope and Thrash would pay each subcontractor what was owed. Thrash contacted Thrasher - Construction approximately four times during this two-day period, but Thrasher Construction did not come to the project to verify its work because of the existing lien. Cope and Thrash paid every other subcontractor on the Inn by the Sea project. In November 2009, Thrasher Construction withdrew its lien.
Thrasher Construction then filed a lawsuit against Madison Homes as well as Cope and Thrash claiming breach of contract. Specifically, Thrasher Construction alleged breach of contract as a third-party beneficiary against Cope and Thrash based on the settlement agreement.
During trial, after Thrasher Construction’s case-in-chief, the county court dismissed the third-party beneficiary breach-of-contract claim after Cope and Thrash moved for a directed verdict. The court allowed Thrasher Construction to proceed on the theory of'quantum meruit. The jury returned a verdict in favor of Thrasher Construction in. the amount of $69,290. Cope and Thrash then filed a motion for a judgment notwithstanding the verdict (JNOV), which was denied by the county court. They appealed to the circuit .court, which affirmed.

Id. The Copes and Thrash then appealed to this Court, and we assigned the case to the Court of Appeals,., where both sides raised the same arguments as before the circuit court.

¶ 4. The Court of Appeals held Thrasher could not recover under quantum meruit but should have been allowed to proceed on its third-party beneficiary claim. Accordingly, the Court of Appeals reversed and rendered the judgment of the circuit court and reversed and remanded the judgment of the county court. With respect to remand, the Court of Appeals held further proceedings were necessary as to the third-party beneficiary action. Both sides filed petitions for certiorari, which we granted. Before this Court, the Copes and Thrash argue the Court of Appeals correctly reversed the quantum meruit claim but erroneously revived the third-party beneficiary claim. Thrasher argues the Court of Appeals'incorrectly reversed the judgment, because under either a quantum memit' or a third-party beneficiary theory, the judgment' of the county court should be affirmed. • '

STANDARD OF REVIEW

¶ 5. The standards of review for a grant or denial of a directed verdict and judgment notwithstanding the verdict (JNOV) are identical. Coho Res., Inc. v. Chapman, 913 So.2d 899, 904 (Miss. 2005). We review both “de novo as to the law applied by the trial court judge as well as the evidence presented during trial.” Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 22 (¶ 3) (Miss. 2007). This Court views the evidence in the light most favorable to the verdict, and if substantial evidence supports the verdict, we will affirm the judgment of the trial court. Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (¶ 25) (Miss. 2008). “For questions of law, the standard of review is de novo.” O’Neal v. O’Neal, 17 So.3d 572, 574 (¶ 11) (Miss. 2009) (citations omitted).

DISCUSSION

¶ 6. The Court of Appeals held Thrasher presented a valid third-party beneficiary claim, which should not have been dismissed on directed verdict. We agree.

¶ 7. “A third person may enforce a promise made for his benefit even though he is a stranger to the contract or to the consideration.” Miss. High School Activities Ass’n, Inc. v. Farris, 501 So.2d 393, 395-96 (Miss. 1987) (citation omitted). To enforce the promise, the third-party’s beneficiary status “must spring from the terms of the contract itself.” Burns v. Washington Savings, 251 Miss. 789, 796, 171 So.2d 322, 325 (1965). To determine third-party beneficiary status, this Court uses-the following analysis:

(1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used,- the said third party will be- within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract. ' ■

Simmons Housing, Inc. v. Shelton, 36 So.3d 1283, 1286 (¶ 10) (Miss. 2010) (quoting Yazoo & M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669, 671 (1931)).

¶8. The relevant section of the settlement agreement between the Copes and Thrash and Stewart provides:

Cope and Thrash shall be responsible for the payment of all outstanding bills and invoices for work performed and materials supplied on the following projects:
—Inn by the Sea (Seaton, LLC);
This shall be accomplished as follows:
a. Stewart has provide[d] a list of all invoices received to date, and the identity of persons/entities with unbilled work-in-process for [Inn by the Sea] to Thrash and Cope which is attached hereto as “Exhibit 1”;
c. Thrash, along with Stewart, shall be entitled to contact any of the subcontractors pr suppliers for the purposes of determining the fact that such sums are, in fact, due and owing and represent work performed or materials provided to [Inn by the Sea]. To the extent that the invoices do not represent such sums, they shall not be payable by Thrash and Cope. To the extent that they are true, valid[] and correct payables as to [Inn by the Sea], Cope and Thrash shall pay same within 7 days.

(Emphasis added.)

¶ 9. The Copes, Thrash, and Stewart entered into an agreement for the express benefit of Thrasher. They named Thrasher a beneficiary under their contract. The agreement plainly sets out the parties’ intent: “Cope and Thrash shall be responsible for the payment of all outstanding bills and invoices for work performed and materials supplied on [Inn by the Sea].” Thrasher had aq outstanding bill on Inn by the Sea, which the Copes and Thrash agreed to pay to Thrasher by name. As the Court of Appeals correctly held, “Thrasher Construction qualifies as a third-party beneficiary.” Cope, 231 So.3d at 1052, 2016 WL 3523874, at *4 (¶ 18).

¶ 10. The only argument the Copes and Thrash have raised, both before the lower courts and this Court, challenging Thrasher’s third-party beneficiary claim is that the third-party beneficiary agreement contained “a specific condition precedent which was not met by Thrasher.” The Copes and Thrash claim Thrasher was required to meet with them during a specific two-day period for settling claims. Since Thrasher did not appear during those two days, it failed to meet the “condition precedent.” However, as the Court of Appeals observed, “no such condition [was] present in the settlement agreement that required Thrasher Construction to respond within two days to a request to verify the work performed at Inn by the Sea.” Id. at 1053, 2016 WL 3523874 at *5 (¶20). The only relevant conditions were that the Copes and Thrash could verify the work, and “to the extent that [the invoices were] true, valid[,] and correct,” the Copes and Thrash were required to pay them.

¶ 11. We agree with the Court of Appeals that “[a] reading of the settlement agreement shows that the only way Cope and Thrash would not be responsible for paying Thrasher Construction is if the work was never performed.” Id. at 1053, 2016 WL 3523874 at *5 (¶21). A jury has determined Thrasher performed the work. As a result, Thrasher should have been allowed to proceed on its third-party beneficiary claim.

¶ 12. Despite the error, a new trial is not needed in this case. We have held, “if the judgment of [a trial court] can be sustained for any reason, it must be affirmed, and even though the trial judge based it upon the wrong legal reason.” Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss. 1990). This Court has an “obligation to affirm a trial, court judgment correct as a matter of law, even though the trial court may have been mistaken in its reason for granting the judgment.” Shewbrooks v. A.C. & S. Inc., 529 So.2d 557, 564 (Miss. 1988), superceded by statute on other grounds as stated in N. Am. Midway Entm’t, LLC v. Murray, 200 So.3d 437, 439 n. 4 (Miss. 2016). In other words, we will uphold a judgment where a “lower court reaches the right result for the wrong reason.” Finnie v. Lee County Bd. of Supervisors, 186 So.3d 831, 834 (¶ 7) (Miss. 2016) (quoting Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 725 (¶ 62) (Miss. 2002)).

¶ 13. While the third-party-beneficiary action was dismissed erroneously, the county court reached the correct result in this ease. Thrasher worked on Inn by the Sea. The Copes and Thrash agreed to pay Thrasher for its work. Under either third-party beneficiary or quantum meruit, Thrasher is entitled to the damages awarded in the county court. See Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss. 1987) (holding that, even though incorrect legal theory supported trial court judgment, where “the finding of fact is consistent with the judgment^] it will be affirmed-.”)- The amount awarded by the jury under the quantum meruit theory, $69,290, equals the amount of damages proven by Thrasher in pursuit of its third-■party beneficiary claim.

¶ 14. We see no reason to remand this case for further proceedings. No factual questions are left to be' decided. As the Court of Appeals observed, “[t]he facts point so overwhelmingly in. favor of Thrasher Construction that reasonable jurors could hot have arrived at a contrary verdict.” Cope, 231 So.3d at 1053, 2016 WL 3523874, at *5 (¶ 22). Therefore, the judgments of the county court and circuit court must stand. ..

CONCLUSION

¶ 15. Thrasher’s third-party beneficiary claim should not have been dismissed. However, the county court reached the correct result but for the wrong reason. Therefore, no further proceedings are needed in this case. Accordingly, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgments of the circuit court and county court in favor of Thrasher.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED; THE JUDGMENTS OF THE COUNTY COURT AND CIRCUIT COURT OF HARRISON COUNTY ARE REINSTATED AND AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.

      . Thrasher Construction, Inc., is specifically named in the attached exhibit, as well as the sums due to Thrasher.


author: /s/ James D, Maxwell II JAMES. D. MAXWELL II, JUSTICE KITCHENS, PRESIDING JUSTICE,

text:
    James Wesley SCOTT a/k/a James W. Scott a/k/a James Scott, Appellant v. STATE of Mississippi, Appellee
    No. 2014-CT-00572-SCT
    Supreme Court of Mississippi.
    November 29, 2017
   ORDER

Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed. Consequently, that judgment must be, and is, affirmed.

Issuing conflicting opinions on the issues raised on certiorari would serve no purpose, as neither .opinion would carry any authority. Hentz v. State, 162 So.3d 1139, 1143 (Miss. 2014) (Randolph, P.J., specially concurring) (citing Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S.Ct. 621, 622-23, 54 L.Ed. 1001 (1910); Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 19 L.Ed. 154 (1868); Etting v. Bank of U.S., 24 U.S. (11 Wheat.) 59, 78, 6 L.Ed. 419 (1826); Rockett Steel Works v. McIntyre, 15 So.2d 624 (Miss. 1943)).

Accordingly, as the judgment of the Court of Appeals has not been decided to be érroneous by a majority‘of the justices sitting in this case, the judgment of the 'Coilrt of Appeals is .affirmed without opinion. The costs on appeal áre assessed to Forrest County.

SO ORDERED.

/s/ James D, Maxwell II JAMES. D. MAXWELL II, JUSTICE

AFFIRMED: RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ. SEPARATE WRITTEN STATEMENT OBJECTING TO THE ORDER BY KITCHENS, P.J., JOINED BY WALLER, C.J.,KING AND COLEMAN, JJ. ISHEE, J., NOT , PARTICIPATING. ■

KITCHENS, PRESIDING JUSTICE,

OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. Because James Wesley Scott’s constitutional right to a speedy trial was violated by the nearly five-year delay between his arrest and trial, I would reverse his conviction and render judgment in his favor. Accordingly, I object to the order affirming the judgment of the Mississippi Court of Appeals.

¶2. On September 26, 2011, a Forrest County grand jury indicted James Scott for attempted rape, kidnapping, and burglary of a dwelling. He was arraigned on March 14, 2012. Scott filed a motion for recusal of the trial judge on April 12, 2012. No ruling on that motion appears in the record; however, the trial judge recused on his own motion on September 6, 2012. This Court appointed a special judge on September 20,2012.

¶ 3. On March 24, 2014, and May 2,2014, respectively, Scott, pro se, filed motions to dismiss in which he alleged speedy trial violations. His appointed counsel filed a third motion to dismiss alleging speedy trial violations on August 14, 2014. Scott’s third motion was denied,.and his trial took place on August 19 and 20,2014.

¶ 4. A Forrest County jury found Scott guilty of all three charges and he was sentenced, as an habitual offender under Mississippi Code Section 99-19-83, to three consecutive life sentences without the possibility of parole. Scott then filed a Motion for a Judgment Notwithstanding the Verdict, or in the alternative,- for a New Trial, which the trial court denied. Scott appealed his- conviction, and this Court assigned his case to the Court of Appeals, which affirmed. Scott v. State, 231 So.3d 1024, 1046, 2016 WL 3391630, *19 (Miss. Ct. App. June 21, 2016). This Court granted Scott’s petition for a writ of certio-rari.

¶ 5. On direct appeal, Scott argued that his constitutional right to a speedy trial was violated. After analyzing the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court of Appeals held that it was not.

¶ 6. The Sixth Amendment to the United States Constitution guarantees criminal defendants “the right to a speedy and public trial .... ” U.S. Const, amend. VI.' Additionally, Article 3 Section 26, of the Mississippi Constitution guarantees criminal defendants a “speedy and public trial by an impartial jury .... ” Miss. Const, art. 3, § 26. “A formal indictment or information or an arrest — whichever first occurs — triggers the constitutional right to a speedy trial.” McBride v. State, 61 So.3d 138, 142 (Miss. 2011) (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); Smith v. State, 550 So.2d 406, 408 (Miss. 1989)).

¶7. In Barker, the United States Supreme Court set forth four factors that appellate courts must balance and consider when a defendant contends his constitutional right to a speedy trial has been violated: length of delay, reason for delay, whether the defendant asserted his right to a speedy trial, and prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. The Barker Court explained that each case must be considered on “on an ad hoc basis” and no one factor is outcome determinative. Id. at 531, 533, 92 S.Ct. 2182.

Length of Delay

¶ 8. “A full Barker analysis is warranted only if the delay was presumptively prejudicial.” McBride, 61 So.3d at 142 (citing Stark v. State, 911 So.2d 447, 450 (Miss. 2005)). Any delay that exceeds eight months is presumptively prejudicial. Johnson v. State, 68 So.3d 1239, 1242 (Miss. 2011) (citing Smith, 550 So.2d at 408).

¶ 9. On direct appeal, Scott alleged that he turned himself in to police in October or November 2009. The Court of Appeals found that the record “d[id] not fully support Scott’s contention that he was first arrested in late 2009 for this crime,” so it calculated the length of the delay from the date of indictment. However, the State conceded that Scott turned himself in to police “sometime in late October or early November... 2009.” Giving'the State the benefit of the doubt as to the exact date of arrest, I calculate the length of the delay from November 15,' 2009, until August 19, 2014, the day Scott’s trial commenced. At least 1,739 days' or fifty-seven months passed between Scott’s arrest and trial. Because this delay far exceeded eight months, the delay was presumptively prejudicial, and this factor weighs against the State.

Reason for Delay

¶ 10. After a delay is found presumptively prejudicial “‘the burden shifts to the prosecution to' produce evidence justifying the delay McBride, 61 So.3d at 142 (citing State v. Ferguson, 576 So.2d 1252, 1254 (Miss. 1991)). “ ‘Different reasons for delay are assigned different weights.’” Hurst v. State, 195 So.3d 736, 741 (Miss. 2016) (quoting Bateman v. State, 125 So.3d 616, 629 (Miss. 2013)). The State’s deliberate attempt to delay the trial in order to hamper the defense is weighted heavily against the State. Barker, 407 U.S. at 531, 92 S.Ct. 2182. But delays due to negligence or docket congestion are weighted less heavily against the State. Id. Additionally, delays that are unexplained are attributed to the State. Perry v. State, 233 So.3d 750, 757, 2017 WL 2377708, at *4 (Miss. Jun. 1, 2017) (citing Vickery v. State, 535 So.2d 1371, 1377 (Miss. 1988)). On the other hand, any “delay caused by the actions of the defendant ... tolls the running of the time period for that length of time, and is subtracted from the total amount of the delay.” Taylor v. State, 672 So.2d 1246, 1259 (Miss. 1996) (citing Wiley v. State, 582 So.2d 1008, 1011 (Miss. 1991); Flores v. State, 574 So.2d at 1314, 1318 (Miss. 1990)).

¶ 11. The first delay occurred between Scott’s arrest and indictment on September 26, 2011. The record indicates this 680-day delay was due to the negligence of the Hattiesburg Police Department. In his opening statement, the prosecutor said, “Our police department ... dropped the ball. They did their work that night. But after that, Hattiesburg Police Department was in shambles. The detectives are leaving, and they drop the ball. That’s why you’ve got the delay. The detectives leave. The files get lost. Statements get lost.”

¶ 12. The record further indicates Scott, who was on parole at the time of his arrest, served the remainder of a prior sentence between his arrest and indictment. But this Court has said, “Incarceration via parole revocation ... is not a legitimate reason for the prosecution’s failure to bring an accused to trial.” Beavers v. State, 498 So.2d 788, 790 (Miss. 1986), overruled on other grounds by State v. Ferguson, 576 So.2d 1252 (Miss. 1991). This 680-day delay weighs against the State.

¶ 13. The next delay occurred between Scott’s indictment and arraignment on March 14, 2012. The record provides no reason for this 171-day delay, so we must weigh this delay against the State. A 30-day delay occurred between' Scott’s arraignment and- his motion for recusal of the trial judge on April 12, 2012. This delay is likely attributable to Scott,- and should not be weighed against the State. A delay of 148 days occurred between Scott’s motion for recusal and the trial court’s order of recusal on its own motion. An additional fourteen days passed between the trial judge’s recusal and this Court’s appointment of a special judge. I would find sixty days of this delay to be neutral, and would weigh the balance of it against the State.

¶ 14. When ruling on Scott’s third motion to dismiss, the trial judge said that a majority of delays following Scott’s arraignment were caused by Rod Nixon— Scott’s second attorney. The trial court noted that Nixon caused delays by not agreeing to a trial date and making repeated assurances that a guilty plea would be entered. The Court of Appeals found Nixon’s action’s caused a 554-day delay that ran from September 20, 2012, until March 27, 2014. Scott, 231 So.3d at 1041-42, 2016 WL 3391630, *14. The Court of Appeals subsequently attributed this delay to Scott. Id.

¶ 15. We find that the delays caused by Nixon weigh against Scott. But the record provides little guidance on when these delays started as Nixon did not file an entry of appearance — or any other document. In a letter dated March 24, 2014, Nixon informed the trial judge, assistant district attorney, and circuit court that he could no longer practice law. He further mentioned that he was retained prior to this Court’s appointment of the special judge. It appears the Court of Appeals calculated the 554-day delay as beginning on the date of this Court’s order appointing the special judge (September 20, 2012) and ending on the date of the trial court’s appointment of new counsel (March 27, 2014). I agree and weigh this delay against Scott.

¶ 16. On June 19, 2014, the State filed a motion for continuance and Scott’s counsel filed a motion to withdraw due to a conflict of interest. When these motions were filed, Scott’s trial was set for June 24, 2014. At a motion hearing on June 24, 2014, the trial court granted the motion to withdraw, and reset the trial for August 13, 2014. Because the trial was continued due to the substitution of counsel, the State did not seek a ruling on its motion for a continuance. This 55-day delay weighs against Scott as it was caused by his attorney’s motion to withdraw. Finally, the parties filed an agreed order moving the trial to August 19, 2014. This six-day delay is neutral and does not weigh against either party.

¶ 17. It is clear that a majority of the delays were caused by the State; therefore, the Barker reason of delay factor weighs against the State.

Defendant’s Assertion of the Right

¶ 18. While “ ‘the defendant has neither a duty nor an obligation to bring himself to trial, points are placed on his side of the ledger when ... he has made a demand for a speedy trial.’” Bailey v. State, 78 So.3d 308, 322 (Miss. 2012) (quoting Stevens v. State, 808 So.2d 908, 917 (Miss. 2002)). Scott asserts that he demanded a speedy trial in June,'2010, and again' in May, 2013. Neither of these demands is in the court file. Scott had not been charged in June 2010, and no record existed at that time. While the motions are not in the record, the prosecutor stated that she “believe[d] ... a speedy trial motion may. have been sent to the clerk’s office from the defendant.” She further stated that this motion may have been filed prior to the appointment of the- special judge.

¶ 19. Scott, pro se, filed two motions to dismiss in which he alleged speedy trial violations, the first on March 24, 2014, and the second on May 2, 2014. With the assistance of counsel, Scott filed a third motion to dismiss on August 14, 2014.

¶20. This Court has held that “a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial.” Perry v. State, 637 So.2d 871, 875 (Miss. 1994). But “[t]he United States Supreme Court has rejected the. notion that a defendant can waive the right to a speedy trial forever by failing to timely assert it.” Myers v. State, 145 So.3d 1143, 1151 (Miss. 2014) (citing Barker, 407 U.S. at 528, 92 S.Ct. 2182). And this Court reversed and rendered a conviction due to a speedy trial violation in a case in which the defendant had “filed a Motion to Dismiss for Failure to comply with the 270 day rule.” Flores v. State, 574 So.2d 1314, 1323 (Miss. 1990). “[T]he state argue[d] ‘[t]he point is, on June 21, 11985, [sic], [the defendant] demanded dismissal, not a speedy trial.’ ” Id. The Court held the following:

With this argument the State is putting the responsibility on the defendant to request a trial. That duty is always on the state. Moreover, in his pretrial motions on the .day of trial [the defendant] moved to . dismiss. on the speedy trial violation. As has been repeated throughout this opinion, a defendant may have some responsibility, to assert his speedy .trial claim, but the primary burden is on the courts and the prosecutors to assure that cases are brought to trial.

Id. (citing Trotter v. State, 554 So.2d 313, 317 (Miss. 1989), overruled on other grounds by Betterman v. Montana, — U.S. -, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016)). The Court continued that a defendant’s “failure to consistently badger the prosecution to proceed with his. trial should not eliminate his claim that he was denied a speedy trial.” Flores, 574 So.2d at 1323 (citing Smith v. State, 550 So.2d 406, 408 (Miss. 1989)). The Court held that the defendant’s “failure to assert his right to speedy trial should be weighed against him only lightly, if at all.” Flores, 574 So.2d at 1323 (citing Trotter, 554 So.2d at 317).

Prejudice to the Defendant

¶ 21. “To determine whether the defendant was prejudiced by the delay, this Court considers: ‘(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.’ ” Hurst, 195 So.3d at 742-743 (quoting Bateman, 125 So.3d at 631). “Generally, this Court will find prejudice where ‘there was a loss of evidence, the death of a witness, or the investigation became stale.’ ” Johnson, 68 So.3d at 1245 (quoting State v. Magnusen, 646 So.2d 1275, 1285 (Miss. 1994); Manix v. State, 895 So.2d 167, 177 (Miss. 2005); Sharp v. State, 786 So.2d 372, 381 (Miss. 2001)). “Of these forms of prejudice, ‘the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Rowsey v. State, 188 So.3d 486, 496 (Miss. 2015) (Barker, 407 U.S. at 532, 92 S.Ct. 2182).

¶ 22. On direct appeal, Scott argued that the delay impaired his defense because it contributed to the loss of evidence and witnesses. Scott points out that the following evidence was lost: police files, the 911-call recording, and written statements by the victim and another witness. As for the loss of the victim’s written statement, Scott argued that she made prior inconsistent statements and her written statement may have contained more inconsistencies that Scott could have used to impeach her testimony. He also alleged that, due to the delay, potential witnesses who would have testified' about his relationship with the victim could not be located.

¶ 23." The Court of Appeals found Scott’s arguments to have been speculative. Scott, 231 So.3d at 1043-44, 2016 WL 3391630, *16. The court opined that Scott did not know whether the victim’s statement contained inconsistencies and noted that he had the opportunity to cross-examine the officer who took the her statement. The Court of Appeals further found that Scott “did not demonstrate what the missing police reports or 911 recording may have shown.” Id. at 1044, at *17. With regard to the loss of defense witnesses, the Court of Appeals found no demonstration of prejudice because Scott failed “to cite the name or potential testimony of any allegedly lost witness.” Id.

¶ 24. The blame for the loss of files and records lies squarely upon the State; thus, we presume the content of those records would' have been favorable to Scott, and the burden to rebut that presumption rested upon the State. See DeLaughter v. Lawrence Cty. Hosp., 601 So.2d 818, 822 (Miss. 1992) (quoting Bott v. Wood, 56 Miss. 136 (1878)) (“[Destruction or suppression [of a written instrument] raises a presumption that the document would, if produced, militate against the party destroying or. suppressing it, and that his conduct is attributable to this circumstance ....”) The Court of Appeals incorrectly placed the burden upon Scott to demonstrate that the content of lost records would have benefitted him.

¶ 25. In addition to the presumption- of prejudice from the content of the lost documents, we point out that a defendant is not required to make an ¿ffirmative showing of prejudice to win a Barker analysis. Johnson, 68 So.3d at 1244 (Dickinson, P.J., dissenting) (citing Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973)) (“In Moore, the United States Supreme Court addressed Arizona’s misreading of Barker, in which the court expressly rejected any notion that an affirmative showing of prejudice was. necessary to prove a denial of a constitutional right to a speedy trial”) (emphasis in Johnson). Instead prejudice is presumed if the delay exceeded eight months. Here, the delay far exceeded eight months so it became the State’s burden to rebut the three interests mentioned above. Johnson, 68 So.3d at 1258 (Dickinson, P.J., dissenting). The State failed to show that Scott’s defense was not impaired by the loss of evidence.

¶26. In this case, thé length of the delay, reason for deiay, and the prejudice prongs all favor Scott. To the extent that Scott, who filed two of his three motions to dismiss for lack of a speedy trial pro se, did not label his filings “demands for speedy trial,” 1 would hold that his “failure to assert his right to speedy trial should be weighed against him only lightly, if at all.” Flores, 574 So.2d at 1323 (citing Trotter, 554 So.2d at 317). So a balancing of the Barker factors indicates Scott’s constitutional right to a speedy trial was violated, and the trial court erred by denying his motion to dismiss for lack of a speedy trial.

¶ 27. Because Scott’s constitutional right to a speedy trial was violated; I would reverse his conviction ’ and render judgment in his favor. Accordingly, I respectfully object to the order affirming, the judgment of the Mississippi Court of Appeals.

WALLER, C.J., KING. AND . COLEMAN, JJ„ JOIN THIS SEPARATE WRITTEN STATEMENT.

      . Nixon voluntarily surrendered his law license during the course of these proceedings.


author: FAIR, J.,

text:
    Averald D. BURNETT, Jr. a/k/a Junior Burnett a/k/a JR a/k/a Averald Burnett, Jr. a/k/a Averald D. Burnett a/k/a Averal Dan Burnett, Jr. a/k/a Averal Dan “Junior” Burnett a/k/a Averal D. Burnett, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00210-COA
    Court of Appeals of Mississippi.
    04/18/2017
    Rehearing Denied August 8, 2017
    Certiorari Denied December 7, 2017

      ATTORNEYS ' FOR APPELLANT: MICHAEL W. CROSBY, WILLIAM WARREN SATTERFIELD
    ATTORNEY FOR APPELLEE: OFFICE OF. THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Averald “Junior” Burnett, was convicted of two counts of attempted capital murder after he allegedly attempted to hire a jailmate to kill his estranged wife and his stepdaughter. He had been in jail at the time on the accusation that he had forcefully raped the sixteen-year-old stepdaughter. On appeal, Burnett contends he did not-receive a-fair trial because of certain evidentiary rulings and comments from the trial judge. We find no reversible error and affirm.

FACTS

¶ 2. Although the rape of his stepdaughter had allegedly occurred in Lamar County, Burnett was housed in the Pearl River County jail because he was formerly a police officer in Lamar County. ,In.jail, Burnett met Russell Steele, a fellow inmate. Steele testified that-he. had held himself out to be a killer for hire, and Burnett offered to bail him out and pay him to kill Burnett’s estranged wife and stepdaughter. Steele accepted,- and Burnett drew him a map to his house, gave him descriptions of his wife and stepdaughter’s schedules and sleeping, arrangements, as well as other information that would be of use for Steele in finding and killing them. Burnett had his girlfriend bail Steele out and give him some money, which was supposed to be a down payment on the murder. She gave Steele $300 of the $500 promised. Steele-used the money to go on a bender, and the next day he called the police and reported what Burnett had tried to do.

¶ 3. A short time later, Burnett’s girlfriend called him at the jail, frightened by Steele’s calls demanding more money. The conversation was recorded, and Burnett told his girlfriend to tell Steéle to “do what he said he would do or we’re going to revoke his bond and he’s going to come back and see [Burnett].” From this conversation and other recordings, the investigating officers determined that the girlfriend was not privy to the murder plot, and she testified to that effect at -trial. .The girlfriend said Burnett told her to bail out Steele because he was in danger from the other inmates and Burnett did not want to be drawn into it.

¶ 4. Investigating officers questioned Burnett, who claimed he had drawn the map for his divorce attorney and that it must have been taken from his belongings in the cell he shared with approximately twenty other men. He also admitted he may have talked about some details of his home life — his dog, for example — but he could not explain how Steele knew things like the layout of the inside of his home, the schedules of his wife and stepdaughter, and where Burnett’s wife parked her car. Burnett claimed he was still devoted to his wife and that he planned to reconcile with her.

¶ 5. Burnett did not testify at trial, but the theory of his defense was that he had bonded out Steele under pressure from a jailhouse gang as part of a scheme to get “green dot” cards for contraband cell phones. Steele had instead blown the money and then invented the murder-for-hire story as a way to get financial support from the police and to curry favor with prosecutors in his own pending aggravated assault case.

¶ 6. The jury convicted Burnett of two counts of attempted capital murder, and he appeals.

DISCUSSION

1. Prosecutor’s Arguments / Trial Judge’s Comments

¶ 7. Burnett complains of several comments made by the judge over the course of the trial and of arguments and objections made by the prosecutor that, taken in the aggregate, denied him a fair trial. His arguments on this issue are rather cursory and largely consist of pointing to the arguments or comments and asserting. that they were . erroneous. We will address them in order.roughly from the least to the most prejudicial. .

A,- The Prosecutor’s Closing Argument - Regarding a Second Girlfriend

¶ 8. Burnett contends that the prosecutor argued facts not in evidence during his closing argument—that Burnett was simultaneously involved with three women, his wife and two girlfriends. Burnett claims there was no evidence in the record of a second girlfriend.' This assertion is simply incorrect, as Burnett’s wife testified that Burnett had two girlfriends "that she knew of’ during the relevant time. She named the second girlfriend in her testimony, and the prosecutor repeated it during the closing argument.

B. The Prosecutor’s Argument, Regarding Steele’s Reward

¶ 0. Burnett next complains about the prosecutor’s arguments, some of which were made in the presence of the jury, -regarding whether Steele had asked for or received a reward for his 'testimony against Burnett. There is little dispute regarding whether Steele requested or received a reward relating to his pending charges; in fact, during the police interview Steele had rejected a suggestion from one of the interviewing officers that they might,try to help him with his pending charges, though Burnett argued that Steele might still expect leniency as a result of his testimony. Burnett focused his arguments on the undisputed fact that the officers put Steele up in a hotel room for a few days and gave him a small amount of money for food. The officers said they did this because they needed to keep track of Steele during their investigation, ‘but Burnett pointed out that Steele apparently had no money and ho place to go, and thus several days of food and shelter was a benefit Steele received as a result of implicating Burnett. From our review of the record, it appears that thé prosecution and the defense disagreed about whether this constituted a benefit or’ reward and were “talking past each other” at times in their arguments. But it is apparent that - this disagreement about how -to characterize what Steele received was-laid :bare before the jury and- that the prosecutor’s characterizations were arguments, based in fact, and created little danger of confusion.

C. Encouraging Steele to Assert .His Right Against Self-Incrimination

¶10, During. Steele’s cross-examination, Burnett’s attorney asked Steele a series of questions that were ambiguous as to whether they referred to what Steele had claimed while in jail with Burnett, or were regarding things Steele had actually done. At that point, the trial court stopped the cross-examination so Steele could consult with his attorney. Steele later invoked his right against self-incrimination regarding his supposed prior admissions to being a “hit man.”

¶ 11. On appeal, Burnett argues that the prosecutors encouraged Steele to invoke his right against self-incrimination. But he offers no argument on this point beyond bare assertions and the quotation of a lengthy portion of the trial transcript. Reviewing the transcript, we see no instance of either of the prosecutors encouraging Steele to invoke his privilege against self-incrimination.

D. Encouraging Perjury

¶ 12. Burnett also contends that the prosecutors committed misconduct by encouraging Steele to deny his prior testimony regarding his past history as a hit man, by claiming he had understood the questions to be regarding false boasts he had made to Burnett while they were in jail together. One of the prosecutors did state to the trial judge that it was his understanding of Steele’s testimony, but Burnett offered no contemporaneous objection or complaint about the prosecutor’s observations,

¶ 13. We see no reason to believe that the prosecutor intended to encourage Steele to change his testimony. Indeed, we share the prosecutor’s opinion that this was the most plausible reading of Steele’s initial testimony on cross-examination, which was as follows:

Q. But suppose that — take me through this. Suppose [Burnett] is in jail now and he’s trying to take advantage of your services as a hit man. And that’s what you held yourself out to be, right? You’re a hit man, right?
A. Yes.
Q. You kill people and make them disappear, right?
A. Uh-huh (affirmative).
Q. Is that right?
A. Yes.
Q. And you’ve done that — how many times would you say you’ve killed someone and made them disappear?
A. I don’t know what I told him.
Q. I know you don’t know what you told him. Sometimes when you don’t tell the truth, it’s hard to remember what you tell, right? You would agree with that?
A. Yeah.
Q. So you don’t remember what you told him, right?..
A. Well, it’s ... hard to remember[.] Tell me what you were doing July 12th of this year.

No prosecutorial misconduct has been shown on this point.

E. The Judge’s Comments

¶ 14. During Burnett’s cross-examination of his former girlfriend, the trial judge sustained an objection to one of his questions. The judge then added an admonishment, stating in part: “I understand you are on cross, I understand you have wide latitude to lead the witness. But you can’t testify.” On appeal, Burnett does not seriously argue that the admonishment was unfounded; he contends it influenced the jury through the suggestion of bias on the part of the trial judge, when taken together with two other comments from the judge.

¶ 15. During voir dire, the trial judge apparently omitted the word “defendant” while instructing the venire not to presume guilt from the fact that the defendant was indicted:

Another thing I want to tell you, that every criminal defendant that comes to court has been indicted by a grand jury. Now, a grand jury only hears one side, and what they hear is not necessarily absolute proof. It is not proof that the defendant is guilty. And if you believe that the defendant is guilty simply because a grand jury indicted them, you would be wrong. However, you may believe that. If you do believe that, I need to know that also. Does anybody believe that just because a grand jury has indicted a criminal, that they must be guilty? If there are, hold your hand up. No cards.

When this was called to the judge’s attention, he immediately informed the venire he had misspoken when he initially gave the instruction, and he repeated its admonition as to the “defendant.” The judge also instructed the jury:

The Court instructs the jury that the fact that the defendant has been indicted by a grand jury is not evidence of guilt but rather a procedural process of bringing this case to the circuit court for trial[,] and you are instructed not to consider the indictment as evidence but to determine the guilt or innocence of the defendant based solely on the facts, evidence and law presented in this case.

¶ 16. Finally, during the redirect examination of a police investigator by the prosecution, the following exchange occurred:

Q. Did Mr. Steele ask for any leniency or anything on his charges?
A He never one time, from the first time that I ■ dealt with him during the ride to my-office, throughout all of this investigation, never once asked for help for anything. Not once.

Burnett objected to this answer on the basis that: .

The officer is under a duty to testify truthfully. And that’s an ethical duty. And I would object to that, because under the rules of ethics you must not do that. And I would object to information-false information. .

The trial judge overruled the objection, and stated:

[T]he officer understands the responsibility of being- truthful under his oath. I believe he does. And if he makes a response, unless there is proof that he is directly being untruthful, then I’m going to let him respond. If you can give the Court evidence that he is not being truthful, you are welcome to submit it. But if he makes a statement under oath, I’m going to believe him.

¶ 17. Both the objection and the judge’s response apparently occurred within the hearing of the jury. Burnett’s attorney asked the trial court to allow him to make a motion regarding the statement at a later time. When that motion was presented, the trial judge reviewed the transcript of his ruling and agreed that it was inarticulate and could be misinterpreted as a comment on the witness’s veracity rather than on the competence of his testimony, Burnett then accepted the trial judge’s offer of a corrective instruction. The jury was instructed as follows:

It is the duty of the judge to be completely fair to both sides in this trial, and if any instruction, -ruling, or statement by the Court seems to indicate to you that the Court has any opinion about the case or any particular fact, such indication would be completely false, and you must disregard.it.
It is your exclusive province to- determine the facts in this case and to -consider and weigh the evidence for that purpose.
As sole judges of the facts in this case, you determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case.
The production of evidence is governed by rules of law, and from time to time during the trial the Court may have ruled on the admissibility of evidenced] You .., must not concern yourself with the reasons [for] the Court’s rulings since they are controlled by rules of law.

The court also gave two other instructions on the issue of witness credibility, with one stating: ■

You the jurors are the sole judges of the facts in this case. You decide whether you believe each witness and how important each witness’s testimony is to the case. You may believe all, a part, or none of a witness’s testimony;

¶ 18. “Trial judges' may explain their rulings on evidentiary objections so long as they do not comment upon the evidence in a prejudicial manner.” Wells v. State, 698 So.2d 497, 510 (Miss. 1997). We agreé with Burnett that the trial judge’s initial- explanation of his ruling could be construed as a comment on the evidence and that the statement was potentially prejudicial. However, we note that the objection and the comment were not addressed to a true factual dispute — the facts as to what Steele had asked for and received were unquestioned — but one of semantics and the interpretation of undisputed evidence — whether the officers providing Steele with food and shelter for a few days amounted to “help or anything.” That dispute was presented to the jury, clearly and at length, and the trial judge’s comment did not speak to it. Moreover, the. trial judge took corrective action, and the jury is presumed to have followed the trial court’s instructions. Galloway v. State, 122 So.3d 614, 634 (¶36) (Miss. 2013). Burnett has not overcome that presumption, either on this, individual remark or on the remarks of the trial judge and actions of the prosecutor- that we have discussed previously. Reviewing the record of the trial as a whole, we find no reversible error has been shown under this issue.

2. Character Evidence

¶ Í9. Burnett next complains that the trial court erred in overruling his objection to his former girlfriend’s testimony during her direct examination by the prosecution. The girlfriend detailed the things she had done for Burnett after he was accused of rape, including running his errands, bailing out Steele, attempting to get Burnett “green dot” cards and apparently plotting to help him obtain an unauthorized cell phone for use in jail, and supplying $25,000 of her own money for his legal defense. She also described how she and Burnett referred to each other as husband and wife despite Burnett being married to someone else. The girlfriend was then asked — in the context of. “as a result of all this” and after speaking to a police investigator who was investigating the instant charges — whether she had “cared for” Burnett in. the sense of feeling affection or love toward him. She responded that she had. This was- followed with, .“What is the impression that you have about [Burnett] now?” Her response was that Burnett “is a liar, and he is a master manipulator.” Burnett objected to this as impermissible character evidénce, but the objection was overruled.

¶ 20. Burnett’s argument on appeal likewise is that this was improper character evidence. While we agree that the particular phrasing of the response could be read as speaking to Burnett’s character, in context it is difficult to interpret the challenged testimony as anything but a statement of what the witness felt Burnett had done to her during the. events at issue. More troubling is the ambiguity of the question and. the possible lack of a foundation in personal knowledge; it is unclear whether the witness was testifying that she was upset at Burnett’s statements to police investigators. that he intended to reconcile with his wife, that he had another girlfriend, that she believed he was guilty in the murder-for-hire plot, or some combination of the three. However, error cannot be founded on that theory, as it was not the basis of Burnett’s objection at trial. An “[objection on one ground at trial waives all other grounds for objection on appeal;” Carter v. State, 722 So.2d 1258, 1261 (¶ 13) (Miss. 1998).

¶ 21. “The standard of review regarding admission or' exclusion of evidence is abuse of- discretion. Where error involves the admission or exclusion of evidence, [a reviewing court] will not reverse unless the error adversely affects a substantial right of a party,” Ladnier v. State, 878 So.2d 926, 932-38 (¶27) (Miss. 2004). Thus, while we agree with Burnett that the objection should have been sustained based on the particular phrasing of the testimony, that Burnett’s ex-girlfriend held a low opinion of him following the events at issue would have come as no surprise to the jury. The statement might even be regarded as favorable to the defense, as an admission of bias from a prosecution witness. We are satisfied that overruling the objection did not affect the result of the trial, and we do not find the error to be reversible.

3. Spoliation

f 22. Next, Burnett contends that the trial court erred in refusing to grant a jury instruction on his claim of spoliation. One of the police investigators -testified that Burnett had claimed during an- interview that jail surveillance tapes would show he was accompanied by other individuals in his cell, while, he was speaking , on the telephone. Burnett apparently claimed these individuals were directing him to do things relating to the “green dot” cards and cell phones. Burnett also claimed the video recordings would show him writing a letter he claimed was somehow relevant to the investigation. The video recordings were never viewed by the investigator, and they were apparently allowed to be automatically overwritten. - .

¶23. The investigator testified that he did not check the recordings because he had limited resources and the recordings would have had little relevance to the investigation. It was uncontested that Burnett’s cell mates were often near him when he was using the phone, and they could be heard speaking to Burnett on the audio recordings of Burnett’s calls,-which’were preserved.- The investigator ;added that he had been monitoring Burnett in the .jail to protect him from the other inmates, as Burnett was a former -police officer, but the other inmates never sounded hostile to Burnett in the audio recordings; instead, they were offering Burnett advice or engaging in friendly banter. The investigator had repeatedly spoken to Burnett during the time he was incarcerated and Burnett had always denied that.he. had any .problems with the other inmates.

¶ 24< The investigator also testified that he did not believe the video recordings would have been of any use in investigating Burnett’s claims about the letter, as Burnett had never told him what the letter’s significance was. Also, it was undisputed that Burnett had written many letters while in jail, and the video recordings would not haye been able to prove he had written any particular one.

¶ 25. The spoliation instruction should be given only when a factual basis exists to conclude that “the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth.” Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss. 1987). Spoliation cannot be found “where the destruction was a matter of routine with no fraudulent intent.” Id. Burnett failed to show that ttye recordings were destroyed in bad faith, and consequently we find no error in the trial court’s refusal of the spoliation instruction.

4. Sentencing Hearing

¶ 26. Pursuant to statute, the trial court held a bifurcated sentencing hearing. See Miss. Code Ann. § 97-1-7(2) (Rev. 2014). The jury could not unanimously sentence Burnett to life imprisonment. After the first hearing, the trial court seated it would only receivp additional evidence in written form, though it did allow Burnett to give a statement prior to sentencing by the court, if he desired (he declined). Burnett’s attorney protested the decision not to hear any further live testimony, but he did not proffer any additional evidence. The court also spoke to the victims prior to sentencing, in chambers with counsel present, but off the record, and the trial judge apparently offered the victims consolation and advice.

¶27. On appeal, Burnett presents numerous complaints about tfye sentencing process. But he offers nothing in support other than conclusory claims of error. The failure to present an argument and cite authority renders this issue procedurally barred. Rolison v. Fryar, 204 So.3d 725, 738 (¶ 33) (Miss. 2016).

5. Cumulative Error

¶28. Finally, we qddress Burnett’s claims of cumulative ehror. “The cumulative error doctrine stepis from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss. 2007).

¶29. Although we have acknowledged several errors, they were either minor or were sufficiently corrected by the trial court. We see no cumulative effect and are satisfied that Burnett received a fair trial. It is axiomatic that an accused is entitled to a fair trial, not a perfect one. See, e.g., Rank v. State, 172 So. 3d 1112, 1148 (¶ 109) (Miss. 2015).

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF TWO COUNTS OF ATTEMPTED CAPITAL MURDER AND SENTENCE ON EACH COUNT OF THIRTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A FINE OF $30,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.