IN THE SUPREME COURT OF MISSISSIPPI NO CA ERNEST T. JONES APPELLANT/CROSS-APPELLEE

Transcription

1 E-Filed Document Apr :20: CA COA Pages: 40 IN THE SUPREME COURT OF MISSISSIPPI NO CA ERNEST T. JONES APPELLANT/CROSS-APPELLEE VS. MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING; ALCORN STATE UNIVERSITY; DARREN J. HAMILTON, PH.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND GEORGE E. ROSS, PH.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY APPELLEE/CROSS-APPELLANT SUPPLEMENTAL BRIEF OF APPELLEE/CROSS-APPELLANT APPEAL FROM THE CIRCUIT COURT OF CLAIBORNE COUNTY, MISSISSIPPI PREPARED BY: Alan M. Purdie, MSB # 4533 Christopher H. Corkern, MSB # PURDIE & METZ, PLLC P.O. Box 2659 Ridgeland, MS Telephone: (601) Facsimile: (601) ccorkern@purdieandmetz.com apurdie@purdieandmetz.com ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

2 TABLE OF CONTENTS Page TABLE OF CONTENTS TABLE OF AUTHORITIES i iii INTRODUCTION ARGUMENT I. Since Section (1) applies to Jones s claim for an alleged breach of the implied covenant of good faith and fair dealing, the circuit court s judgment notwithstanding the verdict should be affirmed as IHL is statutorily immune from suit for any such claim II. Section 's limited waiver of immunity does not apply to a good faith and fair dealing claim because malice or bad faith is an essential element of said claim and, therefore, Jones cannot bring any such claims against IHL or its officials under the MTCA A. Even assuming, arguendo, that the limited waiver of immunity provision actually applied to good faith and fair dealing claim, which it clearly does not, the circuit court s JNOV is still warranted due to Jones s failure to exhaust his administrative remedies before filing suit against IHL B. Notwithstanding the fact that the limited waiver provision does not apply to Jones s good faith and fair dealing claim under , and regardless of the fact that he failed to exhaust his administrative before filing suit, Jones still does not have any legally cognizable claim against IHL III. IV. Pursuant to Sections & , IHL is immune from liability as to Jones s allegation or claim that IHL s employees intentionally ma[d]e false charges of financial misconduct against him since that allegation or claim arises out of conduct constituting malice, libel, slander or defamation In addition to IHL being immune from liability for Jones s good faith and fair dealing claim, as well as the fact that said claim fails as a matter of law due to no actual breach of the written employment contract, Jones s failure to provide statutory pre-suit notice also requires the dismissal of his claims against IHL i-

3 V. Because IHL is immune from liability for Jones s good faith and fair dealing claim, and Jones does not have a legally cognizable claim irrespective of IHL s immunity, the appropriate remedy is for this Court to affirm the circuit court s judgment notwithstanding the verdict in favor of IHL VI. VII. VIII. IX. The final resolution of the claims alleged in Jones s Complaint has no effect whatsoever on any claims arising out of the subsequent termination of Jones s employment since this case was filed before that event or occurrence, and it does not include any wrongful termination claims from which to obtain any relief against IHL Plaintiff s claim for wrongful termination and breach of the express provisions of his employment contract are barred by this Court s prior decision in Jones v. Alcorn State Univ., 120 So.3d 448 (Miss.Ct.App. 2013) The Supreme Court s decision in Springer v. Ausbern Construction does not require the reversal of the circuit court s decision to dismiss Jones s tortious interference claim against Hamilton because dismissal was still warranted as to said claim due to Jones s failure to exhaust his administrative remedies prior to filing his lawsuit Even assuming, arguendo, that Jones actually had any viable claims against IHL, which he clearly does not, any claims filed under the MTCA would have to be resolved by the circuit court, whereas any claims filed outside the MTCA would be tried before a jury CONCLUSION CERTIFICATE OF SERVICE ii-

4 TABLE OF AUTHORITIES CASES PAGE/S Bailey v. Bailey, 724 So.2d 335 (Miss. 1998) , 7, 8, 17, 19 Braidfoot v. William Carey College, 793 So.2d 642 (Miss.Ct.App. 2000) , 13, 21 Brewer v. Williams, 542 So.2d 1186 (Miss. 1989) Bunton v. King, 995 So.2d 694, 696 (Miss. 2008) Cenac v. Murry, 609 So.2d 1257 (Miss. 1992) , 4, 7, 16 Channel v. Loyacono, 954 So.2d 415 (Miss. 2007) City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208 (Miss.Ct.App. 1999) City of Jackson v. Estate of Stewart, 908 So.2d 703 (Miss. 2005) , 4, 5, 15 City of Jackson v. Powell, 917 So.2d 59 (Miss. 2005) City of Jackson v. Sutton, 797 So.2d 977 (Miss. 2001) , 21 Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 142 So.2d. 200 (Miss. 1962) Cole v. Miss. Dept. of Pubic Safety, 930 So.2d 472 (Miss. 2006) Cox v. Desoto Cty., Miss., 564 F.3d 749 (5th Cir. 2009) Daniels v. Parker & Associates, 99 So.3d 797, 801 (Miss.Ct.App. 2012) , 13, 21, 23 Davis v. Biloxi Pub. Sch. Dist., 43 So.3d 1135 (Miss.Ct.App. 2009) Ellis v. Tupelo Pub. Sch. Dist., 214 U.S. Dist. LEXIS (N.D.Miss. Mar. 31, 2014) Hall v. Board of Trs. of State Insts. of Higher Learning, 712 So.2d 312 (Miss. 1998) Hardy Bros. Body Shop v. State Farm Mut. Auto Ins. Co., 848 F.Supp (S.D.Miss. 1994) iii-

5 Hartley v. Packard Electric, 626 So.2d 106 (Miss. 1993) Holland v. Kennedy, 548 So.2d 982 (Miss. 1989) Hood v. Mississippi Dep t of Wildlife Conservation, 571 So.2d 263 (Miss. 1990) , 27 Howard v. Howard, 968 So.2d 961 (Miss.Ct.App. 2007) Idom v. Natchez-Adams Sch. Dist., 115 F.Supp.3d 792 (S.D.Miss. 2015) Jackson State Univ. vs. Upsilon Epsilon Chapter of Omega Psi Phi, 952 So.2d 184 (Miss. 2007) , 20, 23 Johnson v. Alcorn State Univ., 929 So.2d 398 (Miss. 2006) Jones v. Alcorn State Univ., 120 So.3d 448 (Miss.Ct.App. 2013) , 27, 28 Jones v. City of Hattiesburg, 228 So.3d 816 (Miss.Ct.App. 2017) , 18, 20 Kelly v. Corinth Pub. Utils. Comm n, 200 So.3d 1107 (Miss.Ct.App. 2016) , 19 Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234 (Miss. 1999) , 21 Lawrence v. Evans, 573 So.2d 695 (Miss. 1990) Lippincott v. Miss. Bureau of Narcotics, 856 So.2d 465 (Miss.Ct.App. 2003) Little v. V&G Welding Supply, Inc., 704 So.2d 1336 (Miss. 1997) Miss. College v. May, 128 So.2d 557 (Miss. 1961) Miss. Dept. of Public Safety v. Durn, 861 So.2d 990 (Miss. 2003) Miss. Employment Sec. Comm n v. Phila. Mun. Separate Sch. Dist. of Neshoba Co. 437 So.2d 388 (Miss. 1983) Morrison v. Miss. Enterprise for Technology, 798 So.2d 567 (Miss.Ct.App. 2001) , 7 Presley v. City of Senatobia, Miss., 997 So.2d 235 (Miss.Ct.App. 2008) Price v. Clark, 21 So.3d 509 (Miss. 2009) Raiola v. Chevron U.S.A., Inc., 872 So.2d 79 (Miss. Ct. App. 2004) iv-

6 Scoggins v. Baptist Mem l Hosp.-Desoto, 967 So.2d 646 (Miss. 2007) Simpson v. City of Pickens, 761 So.2d 855 (Miss. 2000) Sheffield v. Journal Publ g Co., 51 So.2d 479 (Miss. 1951) Smith v. Univ. of Miss., 797 So.2d 956 (Miss. 2001) Speed v. Scott, 787 So.2d 626 (Miss. 2001) Springer v. Ausbern Constr. Co., 231 So.3d 1065 (Miss.Ct.App. 2016) , 7, 8, 10 Springer v. Ausbern Construction Co., 231 So.3d 980 (Miss. 2017) , 20, 22, 29 State v. IHL, 387 So.2d 89 (Miss. 1980) Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86 (Miss. 2010) Thoms v. Thoms, 928 So.2d 852 (Miss. 2006) Univ. of Miss. Med. Cntr. v. Easterling, 928 So.2d 815 (Miss. 2006) Univ. of Miss. Med. Cntr. v. Oliver, 235 So.3d 75 (Miss. 2017) , 8, 9, 16, 18, 19, 20, 23, 32 Univ. of Tenn. v. Elliot, 478 U.S. 788 (1986) Young v. N. Miss. Med. Cntr., 783 So.2d 661 (Miss. 2001) Whiting v. Univ. of S. Miss., 62 So.3d 907 (Miss. 2011) , 6, 9, 10, 15, 20, 23, 30 W.T. Farley, Inc. v. Bufkin, 132 So. 86 (Miss. 1931) Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss. 2009) , 7, 8, 9, 22 STATUTES/CONSTITUTION Miss. Const. of 1980, art. 8, 213A (1944) Miss. Code Ann (Rev. 2012) Miss. Code Ann (Rev. 2012) , 6, 8, 14, 15, 19 Miss. Code Ann (Rev. 2012) , 6, 7, 8, 11, 14, 15, 16, 18, 19, -v-

7 Miss. Code Ann (Rev. 2012) , 21, 22 Miss. Code Ann (Rev. 2012) , 30 Miss. Code Ann (Rev. 2012) Miss. Code Ann (Rev. 2012) Miss. Code Ann (Rev. 2012) Miss. Code Ann (Rev. 2012) SECONDARY SOURCES Black s Law Dictionary 139 (6th ed.1990) Black s Law Dictionary 1042 (9th ed.2009) , 9 -vi-

8 INTRODUCTION On July 20, 2016, the Plaintiff/Appellant, Ernest T. Jones ( Jones ), filed his Notice of Appeal as to the Circuit Court s Order granting Defendant s Motion for Judgment Notwithstanding the Verdict, the Circuit Court s Order Denying Leave to Amend Complaint and the Circuit Court s Order granting Defendants Motions to Dismiss. (C.C. Vol. 9 at ). Subsequently, the Defendant/Appellee, Mississippi Institutions of Higher Learning ( IHL ), filed a Notice of Cross Appeal as to the Circuit Court s decision to deny IHL s Motion for Directed Verdict. (C.C. Vol. 9 at ). On July 13, 2017, Jones filed his Brief of Appellant. Thereafter, IHL filed its Brief of Apellee/Cross-Appellant. On January 30, 2018, this Court held oral arguments in this appeal. On February 26, 2018, this Court entered an Order requiring each party to submit a supplemental brief addressing the nine (9) separate issues identified therein. As set forth below and in the Brief of Appellee/Cross-Appellant, the circuit court correctly granted a judgment notwithstanding the verdict to IHL for following reasons: (1) IHL is immune from liability under the MTCA for breach of the covenant of good faith and fair dealing; (2) Jones s claims fail as a matter of law due to no actual breach of his written employment contract; (3) Jones s claims also fail due to his failure to exhaust his administrative remedies; and (4) Jones s failure to provide statutory pre-suit notice also requires dismissal of his claims. In short, the specific conduct required to bring a viable good faith and fair dealing claim (i.e., bad faith or malice) is the exact same conduct that grants IHL immunity from liability as it would be outside the course and scope of employment under Miss. Code Ann (2). See Univ. of Miss. Med. Cntr. v. Oliver, 235 So.3d 75, 77 (Miss. 2017) (holding that [a]s a matter of law, malice-based torts do not fall under the Mississippi Tort Claims Act s sovereign-immunity waiver. ); Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992) ( The breach of good faith is bad faith characterized by some conduct which violates -1-

9 standards of decency, fairness or reasonableness. ); Bailey v. Bailey, 724 So.2d 335, 338 (Miss. 1998) ( Bad faith, in turn, requires a showing of more than bad judgment or negligence; rather bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity. ) (emphasis added); Morrison v. Miss. Enterprise for Technology, 798 So.2d 567, 575 (Miss.Ct.App. 2001) ( Bad faith raises an issue of motive); Springer v. Ausbern Constr. Co., 231 So.3d 1065, 1069 (Miss.Ct.App. 2016) ( And the conclusion [of bad faith] must be that the actor was malicious or recklessly disregarding the rights of the person injured. ) (quoting Morrison, 798 So.2d at 575). Thus, if Jones could not establish bad faith or malice, then his good faith and fair dealing claim would fail as a matter of law. On the other hand, if Jones did show bad faith or malice in order to bring a viable good faith and fair dealing claim against an ordinary defendant, his claim would still fail as a matter of law against a state entity, such as IHL, because it is immune from liability for any such malicious conduct or breach. Therefore, this Court should affirm the circuit court s JNOV since Jones does not have a legally cognizable good faith and fair dealing claim against IHL under any circumstances or scenario. Further, even assuming, arguendo, that the limited waiver of immunity provision actually applied to a good faith and fair dealing claim under Section , which it clearly does not, the circuit court s JNOV is still warranted due to Jones s failure to exhaust his administrative remedies before filing suit against IHL. Additionally, under Mississippi law, a good faith and fair dealing claim is invalid without an actual breach of the written contract. Since it is undisputed that IHL did not breach the written terms of his employment contract, Jones did not have a viable claim for breach of the covenant of good faith and fair dealing. Moreover, the good faith and fair dealing claim is also barred by the pre-suit notice provision of Miss. Code Ann (1) because it is against a state entity cloaked with the protections of the MTCA, not against an individual who does not enjoy any such protection. Finally, this Court should likewise affirm the circuit court s decision to deny Jones s motion to -2-

10 amend the complaint. Without question, the circuit court was well within its sound discretion to deny Jones s motion considering the fact that Jones waited until the eve of trial to amend his complaint, which was almost 7 years after this state court action was actually filed, over 6 ½ years after his employment was terminated, and close to 3 years after his federal court lawsuit was dismissed. ARGUMENT I. Since Section (1) applies to Jones s claim for an alleged breach of the implied covenant of good faith and fair dealing, the circuit court s judgment notwithstanding the verdict should be affirmed as IHL is statutorily immune from suit for any such claim. In its Order for supplemental briefing, this Court asked whether Miss. Code Ann (1) applies to Jones s claim for an alleged breach of the implied covenant of good faith and fair dealing of his contract with IHL? [Order at 1 ( 1)]. As shown below, that question is answered in the affirmative since the Mississippi Tort Claims Act (MTCA) bars Jones from asserting any claims against IHL for breach of the implied covenant of good faith and fair dealing. The MTCA (Miss. Code Ann through ) is the exclusive route for filing suit against a government entity or its employees. City of Jackson v. Sutton, 797 So.2d 977, 980 (Miss. 2001). The Mississippi Supreme Court has held that [a]ny claim filed against a governmental entity and its employees must be brought under this statutory scheme. Id. at 980 (citing Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss. 1999)). In other words, when the MTCA provides a remedy for an alleged injury caused by the acts or misconduct of a governmental entity or its employees, the Act is the exclusive remedy for all claims that may be asserted based upon that alleged misconduct. IHL is a constitutionally created state entity of Mississippi, and the Board of Trustees of IHL ( Board ) has the responsibility of managing and controlling the eight public institutions of higher learning in Mississippi - one of which is Alcorn State University. Miss. Const. of 1980, art. 8, 213A (1944). The constitutional and statutory authority of the Board was recognized by the Mississippi Supreme Court when -3-

11 the Court declared the Board to be a constitutionally created state agency. State v. IHL, 387 So.2d 89, 91 (Miss. 1980). The Mississippi legislature considered IHL to be an agency or arm of the state by including it and the Board within the definition of State for purposes of the MTCA. See Miss Code Ann (j). Likewise, being a public university, ASU is a public university created by statute and placed under the auspices of the Board of Trustees of MIHL. Miss. Code Ann , et. seq. and (2008). Being a public university, Alcorn State University (ASU) is also within the definition of State under the MTCA. See Johnson v. Alcorn State University, 929 So.2d 398, 406 (Miss. 2006) (recognizing that since State universities fall within the immunity of the MTCA, ASU enjoys the immunity codified within the MTCA since it is a public, state-supported institution. ) (citing Miss. Code Ann (j) & ). Section (1) of the MTCA 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... by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions... Miss. Code Ann (1) (Rev. 2012) (emphasis added). The Mississippi Supreme Court has 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 MTCA covers both tortious breach of contract and breaches of implied terms and warranties of a contract. Whiting v. Univ. of S. Miss., 62 So.3d 907, 916 (Miss. 2011) (citing City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 710 (Miss. 2005)). Regarding Jones s claim for an alleged breach of the implied covenant of good faith and fair dealing, the Supreme Court has previously recognized that [a]ll contracts contain an implied covenant of good faith and fair dealing in performance and enforcement. Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992). However, the Mississippi Supreme Court and the Mississippi Court of Appeals have -4-

12 rejected the previous view that all contracts contain the implied covenant of good faith and fair dealing. See Lippincott v. Miss. Bureau of Narcotics, 856 So.2d 465, 467 (Miss.Ct.App. 2003) (citing Hartle v. Packard Electric, 626 So.2d 106, 110 (Miss. 1993)). Any such implied duty has been said not to apply to employment contracts. Id. Additionally, the Supreme Court has held that the covenant of good faith and fair dealing is inapplicable to employment actions that do not have a cause of action for wrongful termination. See Young v. N. Miss. Med. Cntr., 783 So.2d 661, 663 (Miss. 2001). Instead, the covenant of good faith and fair dealing only applies to wrongful termination actions in the employment context. Id. Because this case is not a wrongful termination action, IHL still maintains that Jones does not have any legally viable claims against it for breach of the implied covenant of good faith and fair dealing, regardless of whether sovereign immunity attaches to any such claims. In any event, the Mississippi Court of Appeals has recognized that the claim of breach of the covenant of good faith itself asserts a tort, one flowing from tortious breach of contract. Lippincott, 856 So.2d at 468 (citing Braidfoot v. William Carey College, 793 So.2d 642, 651 (Miss.Ct.App. 2000)). The Court of Appeals has also found that the MTCA applies to the tortious breach of an implied contract: [t]he clear intent of the legislature in enacting [the Tort Claims Act] was to immunize the State and its political subdivisions from any tortious conduct, including tortious breach of implied term or condition of any warranty or contract. City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1213 (Miss.Ct.App. 1999). However, in City of Jackson v. Estate of Stewart ex rel., the Mississippi Supreme Court clarified that Section (1) is not limited solely to the tortious breach of an implied contract: [There is nothing in the language of the statute to lead us to conclude that a breach of an implied term or condition of any warranty or contract must be tortious... We therefore hold that Miss. Code Ann grants immunity to the state and its political subdivisions for breach of implied term or condition of any warranty or contract. -5-

13 II. Section 's limited waiver of immunity does not apply to a good faith and fair dealing claim because malice or bad faith is an essential element of said claim and, therefore, Jones cannot bring any such claims against IHL or its officials under the MTCA. In its Order, this Court raised the issue of whether a claim for breach of the covenant of good faith and fair dealing may be brought under the MTCA since Miss. Code Ann (1) provides a limited waiver of immunity for certain claims. [Order at 1-2 ( 2)]. This is an issue of first impression. Neither the Mississippi Supreme Court nor the Court of Appeals have ever held that a state agency s immunity is actually waived for the specific claim of breach of the covenant of good faith and fair dealing. Nonetheless, based on the plain language of the statute and examining current legal precedent, it is quite 908 So.2d 703, 711 (Miss. 2005)). In so doing, the Supreme Court endorsed the interpretation that the statute grants sovereign immunity for a wrongful or tortious act or ommission and also grants sovereign immunity for breach of implied term or condition of any warranty or contract. Id. at 710. As a result, the Court held that Miss. Code Ann (1) granted immunity to the state and its political subdivisions for a breach of implied contract claim where malice was not an essential ingredient of the claim. Estate of Stewart, 908 So.2d at 711. Therefore, based on the plain language of the statute and Supreme Court precedent, Miss. Code Ann (1) clearly applies to Jones s claim for breach of the implied covenant of good faith and fair dealing, irrespective of whether that claim is considered a contract-based claim, a tort-based claim or a combination thereof. Under any legal theory, IHL enjoys sovereign immunity from Jones s claim for breach of the implied covenant of good faith and fair dealing. Accordingly, for the reasons provided herein and in the previously filed Brief of Appellee/Cross- Appellant, this Court should affirm the circuit court s judgment notwithstanding the verdict since IHL is immune from liability as to any claims for breach of the covenant of good faith and fair dealing under Section (1). -6-

14 apparent that (1) is inapplicable to a claim for breach of the covenant of good faith and fair dealing because bad faith or malice is an essential element of said claim. As a result, Jones is barred, as a matter of law, from bringing any such claims against IHL or its officials under the MTCA. As previously stated, the MTCA 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... by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions... Miss. Code Ann (1) (Rev. 2012) (emphasis added). The MTCA, of course, provides a limited waiver of immunity for claims arising from some tortious acts of governmental agencies and their employees. Whiting v. Univ. of S. Miss., 62 So.3d 907, 916 (Miss. 2011). Section (1) 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 course and scope of their employment... Miss. Code Ann (1) (Rev. 2012). But the immunity waiver is not without exception and is qualified by (2), which provides: 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 (2) (Rev. 2012). In short, [t]he MTCA does not apply to all claims against governmental entities. Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672, 688 (Miss. 2009). The Act provides specific exclusions to its protections and requirements, and each claim must be examined for MTCA application. Id. For example, [c]ertain intentional torts are excluded from the MTCA s waiver of immunity. Id. Section (2) provides that conduct constituting fraud, malice, libel, slander or defamation are not within the course and scope of employment. Id. (emphasis added). Thus, these intentional torts are -7-

15 outside of the scope of the MTCA s waiver of immunity, and the Act does not apply. Zumwalt, 19 So.3d at 688. Applying these legal principles to the case sub judice, it is quite apparent that Jones s claim against IHL for the alleged breach of the covenant of good faith and fair dealing is a malice-based claim falling outside the scope of the MTCA s waiver of immunity. The breach of the implied covenant of good faith and fair dealing has been defined as: [t]he breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness. Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992). Bad faith, in turn, requires a showing of more than bad judgment or negligence; rather bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity. Bailey v. Bailey, 724 So.2d 335, 338 (Miss. 1998) (emphasis added). Bad faith raises an issue of motive. Morrison v. Miss. Enterprise for Technology, 798 So.2d 567, 575 (Miss.Ct.App. 2001). And the conclusion [of bad faith] must be that the actor was malicious or recklessly disregarding the rights of the person injured. Springer v. Ausbern Constr. Co., 231 So.3d 1065, 1069 (Miss.Ct.App. 2016) (quoting Morrison, 798 So.2d at 575). Black s Law Dictionary defines bad faith as follows: the [t]erm bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. Black s Law Dictionary 139 (6th ed.1990). Similarly, malice is defined as [t]he intent, without justification, or excuse, to commit a wrongful act. Black s Law Dictionary Accordingly, based on the clear language of (2) and Mississippi case law, the MTCA does not apply to a claim for breach of the covenant of good faith and fair dealing against a governmental entity and its employees in their official capacity. Without question, bad faith or malice is an essential element to a claim for breach of the covenant of good faith and fair dealing. This means to prove IHL s employees -8-

16 or officials committed a breach of the covenant of good faith and fair dealing, Jones must necessarily prove the employees or officials acted with bad faith or malice. Thus, for IHL, this means it cannot be liable as a matter of law, and sovereign immunity cannot be considered to have been waived for any alleged malicious conduct of its employees or officials. See Springer v. Ausbern Construction Co., 231 So.3d 980, 989 (Miss. 2017) (recognizing that (2) provides that torts constituting malice are not within the course and scope of employment. ); Univ. of Miss. Med. Cntr. v. Oliver, 235 So.3d 75, 77, 85 (Miss. 2017) (holding that since malice-based torts do not fall under the Mississippi Tort Claims Act s sovereignimmunity waiver, then UMMC is entitled to a judgment as a matter of law, as it cannot be liable for the alleged malicious conduct of its employees. ); Jones v. City of Hattiesburg, 228 So.3d 816 (Miss.Ct.App. 2017) (affirming circuit court s grant of summary judgment for City because the MTCA provides that a governmental entity is not liable for any conduct of its employees that constitutes malice, and Jones s [emotional distress] claim is based on purportedly malicious conduct, it is barred by the MTCA. ); Zumwalt, 19 So.3d at (holding that claim of tortious interference with a contract requires proof of malice and is, therefore, not subject to the MTCA because torts requiring proof of malice as an essential element are excluded under (2)). For the foregoing reasons, this Court should affirm the circuit court s judgment notwithstanding the verdict. Pursuant to Miss. Code Ann (1), IHL is immune from liability as to Jones s claim for the alleged breach of the covenant of good faith and fair dealing. The waiver provision of (1) is inapplicable to Jones s claim against IHL because malice or bad faith is an essential element of a claim for breach of the covenant of good faith and fair dealing. See Bailey, 724 So.2d at 338 ( Bad faith, in turn, requires a showing of more than bad judgment or negligence; rather bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity. ) (emphasis added); see also Black s Law Dictionary 1042 (9th ed.2009) (defining malice as [t]he intent, without justification, or excuse, to -9-

17 commit a wrongful act. ). Consequently, Jones is barred, as a matter of law, from bringing any such claims against IHL or its officials under the MTCA. In Univ. of Miss. Med. Cntr. v. Oliver, the Supreme Court summed it up best: Under (2), torts in which malice is an essential element are not within the course and scope of employment. Zumwalt, 19 So.3d at 688. Thus, these intentional torts are outside the scope of the MTCA s waiver of immunity, and the MTCA does not apply. Id. Rather, any legal action against a governmental employee for these intentional torts must necessarily proceed against him or her as an individual. Id. 235 So.3d 75, 82 (Miss. 2017). A. Even assuming, arguendo, that the limited waiver of immunity provision actually applied to good faith and fair dealing claim, which it clearly does not, the circuit court s JNOV is still warranted due to Jones s failure to exhaust his administrative remedies before filing suit against IHL. Under Mississippi law, it is well-established that a party must exhaust all of its administrative remedies with a state agency or university, such as IHL or ASU, before filing suit in state court. See Smith v. University of Mississippi, 797 So.2d 956, (Miss. 2001); Hall v. Board of Trs. of State Insts. of Higher Learning, 712 So.2d 312 (Miss. 1998); Hood v. Mississippi Dep t of Wildlife Conservation, 571 So.2d 263, 268 (Miss. 1990). This is a jurisdictional prerequisite. See Miss. Code Ann ; Jackson State University vs. Upsilon Epsilon Chapter of Omega Psi Phi, 952 So.2d 184 (Miss. 2007) (holding circuit court had no jurisdiction to hear claims because of failure to exhaust administrative remedies). The Mississippi Supreme Court s decision in Whiting v. Univ. of S. Miss. speaks directly to the exhaustion issue. 62 So.3d 907 (Miss. 2011). In Whiting, IHL and the University of Southern Mississippi (USM) moved for summary judgment on state law claims for tortious breach of contract and tortious interference with a contract, which the circuit court granted. Id. at 913. The circuit court found that, in -10-

18 filing suit prior to a final decision by the Board of Trustees, Dr. Whiting had failed to exhaust all administrative remedies. Id. On appeal, the Supreme Court held: Dr. Whiting failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit. Her 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. Whiting, 62 So.3d at 919. As a result, the Supreme Court affirmed the circuit court s summary judgment in favor of IHL and USM. 1 Id. at 920. In the instant case, using the Whiting Court s decision as guidance, this Court should likewise affirm the circuit court s judgment notwithstanding the verdict in favor of IHL due to Jones s failure to exhaust his administrative remedies pursuant to Miss. Code Ann (Rev. 2012). In his deposition and at trial, Jones testified that he was not suing the Defendants for wrongfully terminating his employment. (C.C. Vol. 6 at ; Record Excerpts at 88-91). Instead, Jones acknowledged that [m]y original lawsuit was about the firing of my assistant coaches, and the athletic director allegedly interfering with his football program. (C.C. Vol. 6 at ; Record Excerpts at 90-91). However, Jones completely failed to exhaust his administrative remedies before filing his lawsuit 1 It must be noted that Whiting is still good law concerning the Supreme Court s holding on the exhaustion of administrative remedy issue. Whiting, 62 So.3d at 919. In Springer v. Ausbern Construction Co., the Supreme Court only overruled 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. 231 So.3d 980, 988 (Miss. 2017). In so doing, the Supreme Court upheld the Whiting Court s decision on the exhaustion provision of Section (1): 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 being with, the decision in Whiting did not turn on the presuit notice provision of the Tort Claims Act... The decision in Whiting turned on the exhaustion provision of Section (1), which requires a claim to be brought only after all administrative remedies have been exhausted. Springer, 231 So.3d at (citing Whiting, 62 So.3d at 916). -11-

19 against IHL. This is undisputed. At no time did Jones ever file an employee grievance with ASU or otherwise follow and complete the internal grievance process with the University concerning the firing of his assistant coaches or the athletic director s alleged interference with the football program. Consequently, Jones s good faith and fair dealing claims were foreclosed by his failure to adhere to the MTCA s requirement that all administrative remedies be exhausted prior to filing suit. See Whiting, 62 So.3d at 919. B. Notwithstanding the fact that the limited waiver provision does not apply to Jones s good faith and fair dealing claim under , and regardless of the fact that he failed to exhaust his administrative before filing suit, Jones still does not have any legally cognizable claim against IHL. In granting IHL s Motion for Judgement Notwithstanding the Verdict, the circuit court made the following findings regarding Jones s claim for the alleged breach of the covenant of good faith and fair dealing: Having determined that there was no breach of the employment contract, Plaintiff s good faith and fair dealing claim fails as well. [T]he claim of breach of the covenant of good faith... asserts a [claim in] tort, one flowing from tortious breach of contract. Daniels v. Parker & Associates, 99 So.3d 797, 801 (Miss.Ct.App. 2012) (citation omitted). Thus, to have a breach of the implied covenant of good faith and fair dealing there must first be an existing contract and then a breach of that contract. Id. Because Plaintiff did not prove a breach of his written employment contract, the good faith and fair dealing claims must be rejected as a matter of law. (C.C. Vol. 9 at 1268; Record Excerpts of Appellee at 232). As detailed in the Brief of Appellee/Cross-Appellant, the circuit court correctly granted IHL a judgment notwithstanding the verdict as to Jones s good faith and fair dealing claims. It is undisputed that Jones s employment contract is the only written contract that was approved on the official minutes of the Board of Trustees of IHL. It is also undisputed that Jones completely failed to present any legally sufficient evidence that IHL actually breached the written terms of his employment contract. This is not surprising since IHL had already fulfilled all of its contractual duties and/or obligations under the employment -12-

20 contract. Indeed, Jones cannot point to a single provision in the written contract which remotely obligates IHL or guarantees Jones that his assistant coaches could not be fired or that his players would be provided certain equipment. Stated differently, Jones has failed to demonstrate where his employment contract in any way guaranteed the job security of his assistant coaches or specific equipment to his players all of whom are not even parties to Jones s contract. Tellingly, Jones acknowledged at trial that there was nothing in his employment contract that guaranteed him any specific money to hire assistant coaches. (Tr. 572). Jones also admitted that there is nothing in his employment contract with IHL that guaranteed him any specific money for a players weight room: I don t believe they showed me anything in the contract that says that. (Tr. 526). Further, Jones also cannot point to any provision in the written contract, which remotely obligates IHL to provide him with radio or TV shows, football camps, television shows, shoe contracts, courtesy car program, housing, equipment and uniform contracts, and/or any other supplemental income sources. Jones s employment contract merely contains a standard attachment which requires any outside income sources to be reported by him. (C.C. Vol. 8 at 1090); (Record Excerpts of Appellee at 175). However, a reporting requirement for unspecified and uncertain outside income sources is completely different than an actual contractual provision expressly obligating IHL to provide certain outside income to Jones from a specifically identified source. Nowhere in Jones s employment contract is there any particular provision guaranteeing Jones additional income from outside sources, such as radio or TV shows, sports camps, shoe deals, etc. (C.C. Vol. 8 at ); (Record Excerpts of Appellee at ). Not surprisingly, Jones admitted at trial that any alleged radio show, TV show or any other income sources were not included or put in the written employment contract. (Tr. 456, 462). Jones also recognized that the alleged shoe deal with New Balance was not included in the employment contract. (Tr. 457). Additionally, -13-

21 Jones acknowledged that the employment contract did not guarantee him money from any football camps. (Tr. 555). Significantly, Jones eventually conceded at trial that this entire lawsuit did not involve any claims that were actually included in his written employment contract with IHL. (Tr. 454). Q. And your lawsuit is about things that you and he talked about, and in your mind y all agreed upon but evidently did not get in that written contract that s approved by IHL. Is that a fair statement? A. Yes, sir. Therefore, for the reasons provided herein and in the Brief of Appellee/Cross-Appellant, Jones s breach of contract claims failed as a matter of law due to the absence of any legally enforceable contractual obligations that had ever been approved by the IHL Board and actually breached by IHL. See Whiting, 62 So.3d at 916 (holding that a valid employment contract with a Mississippi university cannot exist unless and until the Board of Trustees of State Institutions of Higher Learning approves a nomination by the university's president. ); Brewer v. Williams, 542 So.2d 1186, (Miss. 1989) (holding that the trial court should have granted defendant a directed verdict as to plaintiff s breach of contract claims because defendant had fully performed all of his contractual obligations in accordance with the express terms of the written contract, and plaintiff failed to present any other written contracts containing any additional obligations on defendant). Accordingly, since IHL did not breach the written terms of Jones s employment contract, Jones did not have a legally viable claim for breach of the implied covenant of good faith and fair dealing. See Daniels v. Parker & Assoc., Inc., 99 So.3d 797, 801 (Miss.Ct.App. 2012) (finding that to have a breach of the duty of implied good faith and fair dealing, there must first be an existing contract and then a breach of that contract. ); Braidfoot v. William Carey College, 793 So.2d 642, 652 (Miss.Ct.App. 2000) (holding that college did not breach covenant of good faith and fair dealing since it fulfilled all of the terms of the -14-

22 contract, and there was no evidence of a breach). As a result, Jones s good faith and fair dealing claims fail as a matter of law since those claims are invalid without an actual breach of the existing written contract. Thus, even assuming, arguendo, that Miss. Code Ann (1) somehow applies to a claim for breach of the covenant of good faith and fair dealing, which it clearly does not, the circuit court s judgment notwithstanding the verdict should still be affirmed by this Court. At trial, Jones utterly failed to establish any legally cognizable claim against IHL for an alleged breach of the covenant of good faith and fair dealing. The truth of the matter is that Jones s claims should have never made it to a jury in the first place. As soon as Jones rested his case in chief, the circuit court should have granted IHL s motion for directed verdict, as there were no viable claims for the jury to remotely consider. Fortunately, the circuit court corrected that error by granting IHL a judgment notwithstanding the verdict. III. Pursuant to Sections & , IHL is immune from liability as to Jones s allegation or claim that IHL s employees intentionally ma[d]e false charges of financial misconduct against him since that allegation or claim arises out of conduct constituting malice, libel, slander or defamation. In its Order for supplemental briefing, this Court noted that in proceeding at trial on the theory that IHL allegedly breached the implied covenant of good faith and fair dealing, Jones alleges that IHL s employees intentionally ma[d]e false charges of financial misconduct against him. 2 In so doing, this Court inquired into whether this [is] in substance an allegation of libel, slander, or defamation for which the State has not waived immunity under the MTCA, and if so, whether IHL is immune from liability as 2 See Order at 2 ( 3) (citing Plaintiff s Jury Instruction No. 4)). It must be noted that at trial, Defendant IHL raised a laundry list of objections to Jury Instruction No. 4 (P-10), including the following objection: Defendant also objects to Plaintiff s proposed Jury Instruction... on the grounds that it improperly co-mingles an apparent intentional tort with a breach of contract instruction. This is not only an incorrect statement of the law, but it is also confusing and misleading to the jury. Defendant IHL further objects to Plaintiff s proposed Jury Instruction P-10 on the grounds that Defendant is immune from liability under the MTCA... (C.C. Vol. 8 at 1156, ). -15-

23 3 See Order at 2 ( 3) (citing Miss. Code Ann (1) & 5(2); Kelley v. Corinth Pub. Utils. Comm n, 200 So.3d 1107, (Miss.Ct.App. 2016)). to that particular allegations? 3 As set forth below, the answer to both questions is clearly yes. As this Court is aware, expressly states that the state and its political subdivisions shall continue to be immune 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 subdivisions... Miss. Code Ann (1) (Rev. 2012) (emphasis added). The Mississippi Supreme Court has 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 MTCA covers both tortious breach of contract and breaches of implied terms and warranties of a contract. Whiting, 62 So.3d at 916 (citing Estate of Stewart ex rel., 908 So.2d at 710). As this Court is further aware, (1) provides a limited waiver of 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 course and scope of their employment... Miss. Code Ann (1) (Rev. 2012). But the immunity waiver is not without exception and is qualified by (2), which provides: 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 (2) (Rev. 2012) (emphasis added). Thus, IHL agrees with this Court s suggestion that Jones s allegation or claim appears to be libelous, slanderous or defamatory in nature. See Speed v. Scott, 787 So.2d 626, 632 (Miss. 2001) (recognizing that a false statement or allegation that someone committed a criminal act or crime is defamatory or slanderous -16-

24 per se: [w]ords imputing the guilt or commission of some criminal offense involving moral turpitude and infamous punishment. ) (citing W.T. Farley, Inc. v. Bufkin, 132 So. 86, 87 (Miss. 1931)); Lawrence v. Evans, 573 So.2d 695, 698 (Miss. 1990) ( A single charge of lying or dishonesty, if it otherwise meets the test of defamation, may be actionable. ); Hardy Bros. Body Shop v. State Farm Mut. Auto Ins. Co., 848 F.Supp. 1276, 1287 (S.D.Miss. 1994) ( A publication is per se defamatory if it tends to injure another in his trade, business or profession. ) (citing Sheffield v. Journal Publ g Co., 51 So.2d 479, 481 (Miss. 1951)); Holland v. Kennedy, 548 So.2d 982, 987 (Miss. 1989) (charges of incompetency constitute slander per se, as such statements reflect adversely on a party s competency in their chose profession). Therefore, as this Court also appears to suggest in its Order, IHL likewise agrees that it is immune from liability as to the particular allegation that IHL s employees intentionally ma[d]e false charges of financial misconduct against him. [Order at 2 ( 3) (citing Plaintiff s Jury Instruction No. 4)]. Simply put, as a state entity, IHL cannot be liable due to sovereign immunity, as well as the fact that claims involving malice, libel, slander or defamation are outside the scope of an employee s employment under the exclusion provision of Section , which does not provide any exception or waiver from the sovereign immunity always enjoyed by IHL for defamation and malice-based claims. Miss. Code Ann (1) & (2) (Rev. 2012). However, in addition to Jones s allegation or claim that IHL s employees intentionally ma[d]e false charges of financial misconduct against him, 4 IHL still maintains that it is also immune from liability as to any and all other claims or allegations for breach of the covenant of good fath and fair dealing since bad faith or malice is an essential element of that claim. See Oliver, 235 So.3d at 77 (holding that [a]s a matter of law, malice-based torts do not fall under the Mississippi Tort Claims Act s sovereign-immunity waiver. ); Cenac, 609 So.2d at 1272 ( The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness. ); Bailey, 724 So.2d at 338 ( Bad faith, 4 See Order at 2 ( 3) (citing Plaintiff s Jury Instruction No. 4)). -17-