Weible v. Univ. of Southern Miss., et al.
| Docket Number: | 2010-CA-00442-COA Linked Case(s): 2010-CA-00442-COA ; 2010-CT-00442-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-18-2011 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Tort Claims Act - Express contract - Section 11-46-5 - Section 11-46-15 - Intentional infliction of emotional distress - Slander - Implied contract - Equitable estoppel - Promissory estoppel - Detrimental reliance - Negligent misrepresentation - Negligent infliction of emotional distress Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Procedural History: Directed Verdict Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 02-09-2009 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: DIRECTED VERDICT GRANTED FOR DEFENDANTS ON CLAIMS OF BREACH OF CONTRACT AND INTENTIONAL TORTS; NON-JURY JUDGMENT FOR DEFENDANTS ON REMAINING MISSISSIPPI TORT CLAIMS ACT CLAIMS Case Number: CI-05-0003 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Nancy Weible, M.D. |
KIM T. CHAZE |
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| Appellee: | University of Southern Mississippi and Dr. Jane Siders | RICHARD D. NORTON DONALD C. DORNAN JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Tort Claims Act - Express contract - Section 11-46-5 - Section 11-46-15 - Intentional infliction of emotional distress - Slander - Implied contract - Equitable estoppel - Promissory estoppel - Detrimental reliance - Negligent misrepresentation - Negligent infliction of emotional distress |
| Summary of the Facts: | Dr. Nancy Weible filed suit against the University of Southern Mississippi and Dr. Jane Siders over breach of an alleged contract Dr. Weible maintained was created between the parties, who were trying to run an innovative joint daycare involving typical and special-needs children, with sick-child care. The circuit court found there to be no express contract and granted the defendants’ motion for a directed verdict on all non-Mississippi Tort Claims Act claims, which included breach of express contract and the intentional torts of slander and intentional infliction of emotional distress. The trial court then proceeded, without a jury, to hear the remaining MTCA claims. The trial court found that an implied contract existed, but the court determined that the defendants did not breach the implied contract, dismissing Dr. Weible’s claims for breach of implied contract, equitable and promissory estoppel, detrimental reliance, and the unintentional torts of misrepresentation and negligent infliction of emotional distress. Dr. Weible appeals. |
| Summary of Opinion Analysis: | Issue 1: Breach of contract Dr. Weible argues the jury should have decided whether there was an express contract. In any suit for breach of contract, the plaintiff has the burden of proving by a preponderance of the evidence the existence of a valid and binding contract, that the defendant has broken or breached it, and that the plaintiff has suffered monetary damages as a result. The State is not immune from suit for breach of its written contractual obligations. Many of Dr. Weible’s contract arguments, however, concern issues regarding implied contracts, such as promissory and equitable estoppel, detrimental reliance, and quantum meruit. Section 11-46-5 of the MTCA provides a limited waiver of immunity for breach of implied terms of contract to the extent of the maximum amount of liability allowed under section 11-46-15. While the factual issues regarding the existence and breach of express contract are matters for a jury to consider, the other issues related to an implied contract are questions for the judge to decide, as implied-contract issues come under the MTCA and are decided in a bench trial. In Mississippi, where a particular manner of contracting is prescribed with respect to public contracts, the manner is the measure of power and must be followed to create a valid contract. In this case, Dr. Siders did not have the authority to bind USM to a written contract, even if one had been formed. Further, Dr. Siders testified that Dr. Weible was well aware of Dr. Siders’s contracting limitations. In an e-mail to Dr. Weible in December 2003, Dr. Siders specifically explained that “our attorney does not get involved until the agreement is put in writing.” The parties never reached this point in their negotiations. Dr. Weible argues twenty-seven documents “reflect the agreement,” which was “reduced to writing.” There was not sufficient evidence from which a jury could find an express contract between the parties. Dr. Weible maintains that any time the parties use the word “contract,” “agreement,” or “partnership” in their communications or testimony, it is proof there was a binding, valid contract between the parties. However, the record shows the parties were amicably trying to work out the terms of their contract from July 2003 through December 2003, but they could not agree to either large or small matters. While it is true that the joint project started before there was any type of written agreement in place, Dr. Weible acknowledged the risks involved in operating in this manner. Both parties genuinely and reasonably disagreed on numerous terms of their joint endeavor, but they were attempting to work them out until January 2004, when Dr. Weible unilaterally locked the daycare’s doors. If one party prevents performance of an agreement, she cannot sue for breach of contract, but is liable for breach of contract. As the trial court noted, Dr. Weible terminated the parties’ relationship by unilaterally locking out the daycare’s employees, changing the locks, and obtaining an injunction against all USM employees’ entry into the daycare. Any formation of a possible contract would have been terminated by these actions. Dr. Weible argues that “all of the parties agreed” that there was substantial or partial performance of the contract. However, the defendants acknowledged that while the joint project operated, the parties were working toward a contract, but it never occurred. There cannot be substantial or partial performance of terms that were never agreed upon. Since there was insufficient evidence from which a jury could find an express contract between the parties, the trial court did not err in directing verdict against Dr. Weible on her claim of the breach of an express contract. Issue 2: Intentional torts Dr. Weible argues the trial court erred in granting a directed verdict on her claims of intentional tort, which would include intentional infliction of emotional distress and slander. Section 11-46-5(2) provides that 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 or any criminal offense other than traffic violations. While slander is specifically mentioned by this section of the MTCA, intentional infliction of emotional distress is not. Torts which require proof of malice as an essential element are excluded from the MTCA under this section. To the extent intentional infliction of emotional distress is predicated on malicious conduct, the claim would be outside the scope of the MTCA. The trial judge correctly reviewed the claim for intentional infliction of emotional distress under the directed-verdict standard, as a finding of malice would have been for the jury to decide. The trial court did not err in dismissing this claim since there was no evidence of any outrageous or extreme conduct in the record. With regard to her slander claim, Dr. Weible does not specifically address the claim for slander in her brief. Accordingly, it is procedurally barred. Further, there was no evidence, at trial, of any false statement of fact by Dr. Siders or any other USM personnel. Issue 3: Tort Claims Act claims Dr. Weible argues that even if there was no express contract, USM and Dr. Siders are liable based on breach of implied contract. The distinction between an express and an implied contract involves no difference in legal effect but in the manner of manifesting assent, such as by words or other conduct. It is well established that in order for a contract to be binding, there must be a meeting of the minds of the contracting parties. At the bench trial, the trial court ruled that an implied contract existed, based upon a meeting of the minds and performance by the parties, but the defendants did not breach the contract. Dr. Siders did not have the authority to sign an express agreement for USM; however, there was no evidence she was not authorized to perform the acts from which the trial court found the existence of an implied contract. Further, an e-mail from Dr. Siders to the provost showed that when she contacted him about the “collaboration,” he told her to “carry on.” There is substantial evidence to support the court’s determination on this issue. There was never a finalization of the exact terms of the formal agreement. While the joint daycare project for sick and well children operated, the details were never worked out on the terms of the contract. However, to the extent that there was a promise, a meeting of the minds between the parties, and that the terms of the implied contract were identifiable, the Defendants fully performed their obligations until Dr. Weible locked them out of the daycare in January 2004, and the joint project abruptly ceased. As alternative bases of recovery, Dr. Weible argues that she is entitled to relief under the doctrines of equitable estoppel, promissory estoppel, and detrimental reliance; thus, it was error for the trial court to dismiss these claims. These doctrines are means by which a party may be precluded from asserting contract defenses such as lack of consideration or the statute of frauds. While the trial judge did not make specific findings of fact on the theories of equitable estoppel, promissory estoppel, and detrimental reliance, the trial court implicitly found, to the extent there were promises or representations, the defendants did not breach them. There was no error in the trial court’s dismissal of these alternative theories of recovery. Issue 4: Unintentional torts Dr. Weible argues the trial court erred in dismissing her remaining unintentional tort claims, which would include negligent misrepresentation and negligent infliction of emotional distress. With regard to negligent misrepresentation, Dr. Weible argues there is a prima facie case for this claim because USM represented it would provide services, support, and labor to Mother’s Touch, and it would continue all such support into the future, but it did not. From the record, the trial judge may well have found that USM and Dr. Siders provided the represented support until, as the trial judge noted, Dr. Weible decided to change the locks on the facility and close it. Thus, the trial court did not err in dismissing this claim. With regard to negligent infliction of emotional distress, the trial judge’s factual finding of no causation is supported by the record. |
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