McCorkle v. McCorkle

• Decision Date: 09 January 2001
• Docket Number: No. 1999-CA-01711-COA.,1999-CA-01711-COA.
• Citation: 811 So.2d 258
• Parties: Donald McCORKLE, Appellant, v. Mack H. McCORKLE, Appellee.
• Court: Mississippi Court of Appeals

811 So.2d 258

Donald McCORKLE, Appellant, v. Mack H. McCORKLE, Appellee.

No. 1999-CA-01711-COA.

Court of Appeals of Mississippi.

January 9, 2001.

Samuel Pearson Westmoreland, Hattiesburg, Attorney for Appellant.

T. Mack Brabham, McComb, Attorney for Appellee.

Before McMILLIN, C.J., LEE, and PAYNE, JJ.

LEE, J., for the Court:

¶ 1. This appeal is from the Circuit Court of Amite County where a jury returned a 12-0 verdict in favor of Mack McCorkle, the appellee and plaintiff below, awarding him $175,000 for invasion of privacy and intentional infliction of emotional distress, or outrageous conduct, against his son, Donald, appellant and defendant below. Donald's motion for JNOV, or in the alternative, a new trial, was denied, and he appealed, asserting six issues as the basis of error. Mack filed a cross-appeal asserting that the trial court erred in failing to submit the issue of punitive damages to the jury and that attorney's fees should have been granted. After a thorough review of the record, we affirm as to the issues on direct appeal. As to the issues presented on cross-appeal, we reverse and remand on the issue of punitive damages, and reverse and render as to the issue of attorney fees.

FACTS AND RELEVANT PROCEDURE

¶ 2. This case arises from a family dispute. The event which triggered the series of judicial proceedings culminating in this appeal was Mack's harvesting of timber in 1994 on a portion of a 215 acre tract of land. The record indicates that Mack held a life estate in this land and his children the remainder. Mack testified that he harvested fifty acres of the tract for a certain amount of cash. Because the agreement was culminated on a handshake there is no written contract regarding the particulars.

¶ 3. It was Donald's contention that the timber company with whom his father dealt took advantage of him, compensating him for only one third or one half of the true value of the timber. Donald then pursued a vendetta against the timber company by trying to show that his father was mentally incompetent to contract. The next five years saw an inundation of pleadings marked by excessive satellite litigation. We begin with a chronology of the events necessary to an understanding of the issues submitted on this appeal.

¶ 4. Shortly after Mack sold the timber, Donald filed an application for Mack's commitment in the Chancery Court of Amite County on August 23, 1994, and made the first of four attempts to have Mack picked up by the Veterans Administration. Donald affirmed in the application for commitment that Mack was mentally ill and posed a substantial likelihood of physical harm to himself or to others because of a recent attempt or threat to physically harm himself or others. Donald wrote, as justification on the application that Mack was a threat, that: three years ago Mack's wife died and he said he was going to kill the doctors who treated her; that Mack had a falling out with his son eight-teen months ago, and Mack was throwing money away, had cut timber, and bought a Cadillac; that seven to eight months ago Mack had shot his dogs; that Mack had used profane language toward his other sons; and that Mack had a mental illness since 1960 and received a VA check for his mental disability. One week after Donald filed the application for commitment, two medical doctors examined Mack and declared him to be mentally competent. The doctors documented on the certificate of examination that no disease was found and that Mack appeared normal to them. Donald's motion for commitment was dismissed by the chancery court through the special master who had been appointed.

¶ 5. The same day that Mack was declared mentally competent he filed suit to remove cloud to title to his land. On March 25, 1995, judgment was entered for Mack for title to the land and on that same day Donald again requested that the VA pick up Mack as mentally incompetent and made the first of three requests for Mack's confidential VA claims file ("c-file").

¶ 6. Because many of the issues in this case are centered around the c-file, we will describe the nature of this file, as explained by Sam Jarvis, Chief of the Veterans Service Center, before proceeding further. As the chief administrating officer, Jarvis is in charge of the adjudication of all claims for VA benefits. He is also in charge of the fiduciary unit, which oversees incompetent veterans. In this capacity he is in control of the c-files for veterans who file claims for disability benefits. Jarvis testified that a veteran's c-file contains all of the information necessary to support a veteran's receipt of benefits requested. It includes medical, educational and service records. The c-file is confidential and requires written authorization from the veteran for its release. Jarvis said that information regarding psychiatric evaluation is particularly sensitive and that special care is taken to assure that it is properly released. Jarvis further testified that he was not aware that Mack's signature was forged when the c-file was sent to Mack's physician, Dr. Piker. He did acknowledge that Mack's signature authorizing the release did not appear to match other VA documents in the file bearing Mack's signature. The only information regarding Mack's psychiatric condition that was entered into evidence from his c-file was that Mack had a neuropsychiatric condition at the 100 percent rate for more than twenty years. Specifically, Jarvis explained that this meant because Mack received this evaluation in 1971, his benefits were protected at this particular evaluation and could not be reduced. In other words, Mack's disability benefits were vested. Jarvis said that Mack was protected by his right to privacy from any further information being disclosed from his c-file.

¶ 7. In May 1995, Donald mailed a letter to his sister, Ruth, warning her that if he found out that she had anything to do with Mack's sale of the timber that he would do everything he could by law to deal misery to her as long as he lived. He stated in the letter that he had the time and the money to make life for her a living hell. In August, Donald again attempted to have the VA pick up Mack, and the VA informed him that this would require a showing of medical evidence that Mack was incapable of managing his own affairs. Donald admitted to having gone to Dr. Piker, Mack's physician, and asking him to request the c-file from the VA. In October, Donald again requested the c-file from the VA, and Dr. Piker sent a form to the VA requesting Mack's medical records. There is conflicting testimony regarding Mack's signature on that form. Mack said that Piker tricked him into signing the form, whereas Donald said the signature was not Mack's but was authorized by him. Mack, however, testified that he never intended to authorize the release of the c-file. Dr. Piker then mailed a letter to the VA requesting Mack's c-file with Mack's signature, or its likeness, authorizing its release. The letter stated that the information in the file would be helpful to him in providing medical care to Mack. Once Piker requested the c-file, Donald checked with him periodically for its receipt. Two months after Piker received the c-file Piker received a request for a production of documents for the c-file from an attorney who was representing the estate of Donald's deceased brother. Donald admitted to asking the attorney to request the production of the documents from Dr. Piker. It is undisputed that Donald thus acquired the c-file through the attorney and sent portions of it to nineteen people or organizations, including CNN, ABC, CBS, NBC, and Congressman Richard Baker of Louisiana.

¶ 8. Donald subsequently filed another lawsuit against the timber company and a verdict was returned in favor of the timber company.¹ In September 1997, Donald filed a second application for commitment against Mack. Several witnesses testified on behalf of Mack and the special master entered an order dismissing the application, concluding that the evidence failed to prove that Mack was mentally ill. The next day Donald was recorded in a telephone conversation with his sister, Ruth. In the conversation he said that he did not intend to drop his vendetta with the timber company because he had already invested seventy thousand dollars and three years of his time. In the conversation he said that he would get two million dollars out of his pursuit. Ruth asked Donald if he would "run over his daddy to get it", and he responded that he would. This recording was played at the trial.

¶ 9. In March 1998, Mack filed his complaint against Donald for invasion of privacy and outrageous conduct. The jury returned a verdict unanimously in favor of Mack, giving rise to this appeal.

ISSUES

¶ 10. Donald asserts six issues in his appeal which are discussed below.

I. DOES THE THREE YEAR STATUTE OF LIMITATIONS AS PROVIDED IN MISS. CODE ANN. § 15-1-49 RATHER THAN THE ONE YEAR STATUTE AS PROVIDED IN MISS. CODE ANN. § 15-1-35 APPLY TO INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS OR OUTRAGEOUS CONDUCT?

¶ 11. As a preliminary matter, Macks's claim for outrageous conduct is, under Mississippi law, more commonly known as the intentional infliction of emotional distress. Donald v. Amoco Production Co., 735 So.2d 161, 179 (¶ 61) (Miss. 1999). We will not, therefore, consider the outrageous conduct claim as a separate claim, thus there is one claim for the intentional infliction of emotional distress. Donald argues that Mack's claim for intentional infliction of emotional distress falls within the one year statute of limitations rather than the three year statute espoused in Miss.Code Ann. § 15-1-49 (Rev. 1995). The one year statute states:

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

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