Jones v. B.L. Development Corp.

• Decision Date: 24 October 2006
• Docket Number: No. 2005-CA-00955-COA.,2005-CA-00955-COA.
• Citation: 940 So.2d 961
• Parties: Lawunda C. JONES, Appellant, v. B.L. DEVELOPMENT CORPORATION and Jimmy Miller, Appellees.
• Court: Mississippi Court of Appeals

940 So.2d 961

Lawunda C. JONES, Appellant, v. B.L. DEVELOPMENT CORPORATION and Jimmy Miller, Appellees.

No. 2005-CA-00955-COA.

Court of Appeals of Mississippi.

October 24, 2006.

COPYRIGHT MATERIAL OMITTED

Robert G. Johnston, Cleveland, attorney for appellant.

Lorrie K. Ridder, Jennifer M. Bermel, attorneys for appellees.

Before KING, C.J., GRIFFIS and BARNES, JJ.

GRIFFIS, J., for the Court.

¶ 1. Lawunda C. Jones commenced a lawsuit against her employer, B.L. Development Corporation ("B.L. Development"), and her supervisor Jimmy Miller. After discovery, the circuit court granted a summary judgment in favor of B.L. Development and a partial summary judgment in favor of Miller. The court certified the judgment as a final judgment under M.R.C.P. 54(b). From this judgment, Jones appeals.

FACTS

¶ 2. Jones was employed as a slot supervisor at the Grand Casino in Robinsonville, Mississippi. Her employer was B.L. Development. Miller was her shift supervisor.

¶ 3. Jones alleged that she was sexually harassed by Miller over a nine month period, from January 2001 to September 2001. Jones asserted that Miller would grab her breasts, legs, and buttocks. He would put his hand in her blouse and bra. He would make vulgar statements to her regarding oral and anal sex. Jones claimed that this conduct occurred in the presence of other B.L. Development employees and shift managers during pre-shift meetings. Jones claimed that Miller's conduct was not restricted toward her. She contended that there were several other slot supervisors who worked under him, and Miller would do the same things to them. Miller would engage his employees in sexual conversations during every pre-shift meeting, complaining about the things his wife would not do and asking the women if they would do them.

¶ 4. Jones did not report the harassment for a while, because she believed she could put a stop to it. She also believed Miller's supervisor Rhonda Kennedy would not do anything about it. Whenever Jones would stand up to Miller, he would retaliate by refusing to let her have personal calls. Finally, Jones reported the conduct to Kennedy in September. Kennedy said she knew about it. Kennedy reported the incident to her supervisor Jerry Artigere, who suspended Miller for one week and changed Miller to a different shift. After this, Miller stopped harassing Jones.

¶ 5. Jones also claimed that, after she reported Miller, other of her supervisors ostracized her for getting Miller in trouble and wondered if she was filing a lawsuit. B.L. Development further retaliated against her by refusing to give her the same benefits as the other slot supervisors, such as paid time off.

¶ 6. Jones filed this action and asserted claims for violation of Title VII, assault, battery, negligence per se, intentional and negligent infliction of emotional distress. B.L. Development and Miller filed motions for summary judgment. The circuit court granted B.L. Development's motion for summary judgment as to all claims filed against it. The circuit court denied Miller's motion for summary judgment "as to the issue of negligent infliction of emotional distress" and granted partial summary judgment as to all other claims against Miller.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

¶ 8. In her brief, Jones acknowledges that she had no authority to counter B.L. Development's motion for summary judgment that claimed her Title VII claim was barred, and she does not challenge this issue on appeal. Jones also stated that she does not argue that the claim of common law assault and battery is not barred. Thus, according to Jones, there are four torts for us to consider on appeal: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) negligence for violating the simple assault statute, and (4) negligence for violating the stalking/harassment statute. We will follow this order in discussing the issues raised on appeal.

1. Whether Jones's claim for intentional infliction of emotional distress was governed by the one-year statute of limitations?

¶ 9. Jones claims that it was error for the court to grant summary judgment on her claim for intentional infliction of emotional distress. She argues that the intentional infliction of emotional distress claim is subject to the three-year statute of limitations. Also, Jones argues that this claim does not require a physical manifestation of the injury and, even if it did, she presented evidence of physical manifestation. Miller argues the intentional infliction claim is barred by the one-year statute of limitations.

¶ 10. In granting summary judgment, the court determined that Mississippi Code Annotated Section 15-1-35 barred Jones' claim for intentional infliction of emotional distress. Section 15-1-35 provides:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

The court recognized that the claim asserted was not specifically enumerated in Section 15-1-35. However, the court determined that a claim for intentional infliction of emotional distress is subject to the one-year statute of limitations in Section 15-1-35 and relied on City of Mound Bayou v. Johnson, 562 So.2d 1212, 1217-18 (Miss. 1990) and Air Comfort Sys., Inc. v. Honeywell, Inc., 760 So.2d 43, 47 (Miss.Ct.App. 2000).

¶ 11. In City of Mound Bayou, the supreme court determined that Section 15-1-35 applies to all intentional torts which are substantially like those enumerated in the statute. City of Mound Bayou, 562 So.2d at 1217-18. In Air Comfort Systems, this Court held:

Negligent misrepresentation and negligent infliction of emotional distress are governed by the "catch-all" three-years statute. Miss Code Ann. § 15-1-49; see Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss.1996); City of Mound Bayou v. Johnson, 562 So.2d 1212, 1217 (Miss. 1990). If the claim is seen as intentional and not negligent infliction of emotional distress, a one-year statute of limitations applies. Miss.Code Ann. § 15-1-35 (Rev.1995); see Nichols v. Tri-State Brick & Tile Co., 608 So.2d 324 (Miss. 1992).

Air Comfort Sys., Inc., 760 So.2d at 47(¶ 19).

¶ 12. In 2001, a federal district court judge noted a conflict of Mississippi law, between the supreme court and this Court, and determined that the Mississippi Supreme Court had applied the three year statute of limitations to an intentional infliction of emotional distress claim in Norman. Hubbard v. Miss. Conf. of United Methodist Church, 138 F.Supp.2d 780, 781 (S.D.Miss.2001). Jones's argument rests on this conflict.

¶ 13. We examined this in Slaydon v. Hansford, 830 So.2d 686 (Miss.Ct.App. 2002). This Court held "[t]he statute of limitations for intentional infliction of emotional distress is also one year." Id. at 688(¶ 5) (citing McCorkle v. McCorkle, 811 So.2d 258, 263(¶ 11) (Miss.Ct.App.2001)). In a concurring opinion, in Slaydon, Judge Southwick elaborated on the problem with the supreme court's language used in Norman when he noted:

Discussing the statute of limitations on a wide array of claims ... the [Norman] court closed by stating that the "negligence and intentional and/or negligent infliction of emotional distress claims are governed by the three year statute of limitations." There is no authority cited anywhere in the opinion as to why that is the statute of limitations for intentional infliction of emotional distress. That one phrase, in which the intentional tort is joined with the negligent one as well as general negligence, is what causes the uncertainty. The phrase itself is clear, but it is also casual.

Our duty as an intermediate appellate court is not to read any precedent in isolation.... When [the Norman court] grouped intentional infliction of emotional distress with certain negligence claims, the Court made no attempt to either undertake or reject the analysis it had a few years earlier decreed was to be followed for determining when the one-year statute on certain intentional torts applies.... First the one year statute does not apply to all intentional torts. Nichols v. Tri-State Brick & Tile Co., 608 So.2d 324, 333 (Miss.1992). Instead "if the conduct alleged may be fairly categorized as one of the enumerated torts, the one-year statute applies." Id.

Id. at 690 (¶¶ 13-14). We follow our prior decision in Slaydon and will apply the one-year statute of limitations to claims for intentional infliction of emotional distress.

¶ 14. Here, the evidence indicated that the last instance of Miller's conduct occurred on September 10, 2001. Jones did not file her complaint until January 2003. Therefore, based on Slaydon, Jones's claim for intentional infliction of emotional distress is time-barred. We affirm as to this issue.

2. Whether summary judgment was appropriate on Jones's claim for negligent infliction of emotional distress against B.L. Development?

¶ 15. We begin this issue by noting that the court...