Condere Corp. v. Moon, No. 2001-CA-01382-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 880 So.2d 1038
• Docket Number: No. 2001-CA-01382-SCT.
• Parties: CONDERE CORPORATION d/b/a Fidelity Tire and Manufacturing Company v. Jerry MOON, Sylvia Moon and Thomas Young.
• Decision Date: 01 July 2004

880 So.2d 1038

CONDERE CORPORATION d/b/a Fidelity Tire and Manufacturing Company
v.
Jerry MOON, Sylvia Moon and Thomas Young

No. 2001-CA-01382-SCT.

Supreme Court of Mississippi.

July 1, 2004.

Rehearing Denied September 9, 2004.

880 So.2d 1040

Peyton S. Irby, Wendy Moore Shelton, Jackson, Jeffrey K. Tyre, attorneys for appellant

William J. Little, Jr., Jack Harang, Stuart H. Smith, attorneys for appellees.

EN BANC.

COBB, Presiding Justice, for the Court:

¶ 1. At issue in this case is whether Condere Corporation (Condere) was properly found liable for maliciously prosecuting Jerry Moon, Sylvia Moon (hereinafter collectively "the Moons"), and Thomas Young (Young). Condere sued the Moons and Young in federal court for defamatory remarks made regarding Condere's business. The federal court dismissed the suit, finding that Condere was a vortex public figure and had not proved the Moons and/or Young knew their statements were false.

¶ 2. Thereafter, the Moons and Young sued Condere in Adams County Circuit Court for malicious prosecution, abuse of process, and intentional infliction of emotional distress. Condere moved for summary judgment, which the trial court granted. On appeal, this Court reversed and remanded the summary judgment as to the plaintiffs' malicious prosecution claims and affirmed summary judgment on the abuse of process claims. Moon v. Condere Corp., 690 So.2d 1191 (Miss.1997) (Moon I.)

¶ 3. Following trial, a jury found for the plaintiffs on their malicious prosecution claims and awarded $250,000 in compensatory damages and $100,000 in punitive damages to each plaintiff. The trial judge awarded an additional $25,000 in fees and costs to each plaintiff.

¶ 4. Aggrieved by the trial court's judgment, Condere appeals, assigning the following errors: the trial court's (1) refusal to admit the federal court's opinion into evidence and (2) allowing testimony regarding Moon's unemployment; as well as (3) the prejudicial closing argument of plaintiffs' attorney; (4) the jury's verdict being against the weight of the evidence; (5) the trial court's failure to remit damages for emotional distress and (6) an improper punitive damages instruction. Based on the record before us, we reverse and render in Condere's favor because the element of malice, necessary to find malicious prosecution, was not proven. (Given this disposition, we need not address the other issues.)

FACTS

¶ 5. In the summer of 1986, it was announced that Armstrong Tire Company would close its Natchez plant. Condere, a Delaware corporation organized by former management employees of Armstrong Tire, purchased the Natchez plant effective March 17, 1989, and began manufacturing tires under the name of Fidelity Tire Manufacturing Company (Fidelity), a division of Condere. When Fidelity began operations, it hired some of the former Armstrong employees, while not hiring others. Jerry Moon and Thomas Young were among the employees who were not rehired.

¶ 6. Condere applied for a ten-year tax exempt status. One requirement for the exemption was that the applicant had to be a "new business" in Mississippi. On July 5, 1988, at a hearing convened for the purpose of considering Condere's request, Jerry and Sylvia Moon appeared and made statements alleging, inter alia, that Condere

880 So.2d 1041

was not a new business. These statements were broadcast by KNOE-TV (Channel 8) in Monroe, Louisiana, and seen by viewers in Mississippi

¶ 7. On July 14, 1988, acting on behalf of Condere, Scott Kern wrote the Moons informing them that their statements were false and asked that they make retractions. Kern was told to contact the Moons' attorney William Guy. On August 17, 1988, Kern wrote Guy explaining the corporate structure of Condere and requested that the Moons retract their statements. He also stated that "[i]f a correction has not been publicly made by next Thursday, August 25, 1988, I will instruct our counsel to file suit in the Federal District Court in Vicksburg the following day." No retraction was made, and Condere filed a slander suit against the Moons on August 26, 1988.

¶ 8. About four months later, Thomas Young sent a letter to the editor of a local Natchez newspaper which included the allegations that Condere was still linked to Armstrong and added that "Fidelity Tire Company has accepted federal money to `train' men to do jobs they have had for years!" On November 18, 1988, Kern wrote a letter to Young demanding a retraction. Young issued no such retraction, and Condere filed suit for defamation on December 1, 1988 in the United States District Court for the Southern District of Mississippi, Western Division.

¶ 9. On October 11, 1989, the federal district court found that Condere Corporation was a vortex public figure. The court further held that Condere had failed to prove that the Moons or Young "knew that their statements were false or entertained any doubt as to their truth whatsoever." Additionally, the court stated that "the record is devoid of any evidence of actual injury suffered by Condere." The case was dismissed on a summary judgment motion filed by the defendants.

¶ 10. On August 25, 1989, and November 29, 1989, respectively, the Moons and Young filed suits against Condere in the Adams County Circuit Court, for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The suits were later consolidated. The circuit court found that Condere did have probable cause based on the fact that the United States District Court found elements of a defamation action. The circuit court also held that...