Opinion
No. 2001-CA-01909-COA.
June 3, 2003. Rehearing Filed June 17, 2003.
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON.W. ASHLEY HINES, DATE OF TRIAL COURT JUDGMENT: 11/7/2001
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: DENNIS L. HORN, SHIRLEY PAYNE
ATTORNEY FOR APPELLEES: J. CAL MAYO
BEFORE SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.
¶ Almost two years after Black learned that the University appellees had decided not to renew her contract, Black filed a lawsuit in Leflore County Circuit Court against Mississippi Valley State University (University) and against several University officials, including officials of the Board of Trustees of State Institutions of Higher Learning (IHL). Her complaint never mentioned a claim for breach of contract. However, her claim did mention tortious discharge and tortious interference with her employment contract. In her complaint, Black demanded that the State and its officials pay her more than one million, five hundred thousand dollars. The University appellees moved to dismiss Black's suit on three independent grounds which include: (1) Black failed to exhaust her administrative remedies available to her through the University and the IHL; (2) the circuit court lacked jurisdiction to conduct a de novo review of the state agency's employment decision through an original cause of action (a petition for writ of certiorari is the exclusive avenue for seeking judicial review of a state university's employment decision); (3) the one-year limitation period under the Mississippi Tort Claims Act. After a hearing, the trial court granted the motion to dismiss holding that the Mississippi Tort Claims Act's one-year limitation period barred Black's tortious interference and tortious breach claims. Black now appeals that decision.
STATEMENT OF THE ISSUES
I. DID THE TRIAL COURT ERR IN RULING THAT THE MISSISSIPPI TORT CLAIMS ACT'S ONE YEAR LIMITATIONS PERIOD APPLIES TO PLAINTIFF'S CLAIMS OF TORTIOUS INFERENCE WITH HER EMPLOYMENT CONTRACT AND TORTIOUS BREACH OF HER EMPLOYMENT CONTRACT?
II. DID THE TRIAL COURT ERR IN HOLDING THAT THE PLAINTIFF WAS REQUIRED TO BRING HER CLAIM AGAINST A STATE UNIVERSITY AND VARIOUS STATE OFFICIALS WITHIN ONE YEAR, AS SET FORTH IN THE MISSISSIPPI TORT CLAIMS ACT'S LIMITATION PROVISION, SECTION 11-46-11(3) OF THE MISSISSIPPI CODE?
III. EVEN IF BLACK'S CLAIMS WERE NOT TIME-BARRED, WERE BLACK'S CLAIMS PROPERLY DISMISSED BECAUSE OF FAILURE TO EXHAUST HER ADMINISTRATIVE AND APPELLATE REMEDIES?
FACTS
¶ The Mississippi Valley State University, a state-supported, public institution of higher learning, hired Patricia Black in 1997 as an Assistant Professor of Education and to serve as Director of the Department of Field Experiences, the University's student-teaching program. Dr. S. L. Ansah, Acting Chair of the University's Education Department notified Black, by memorandum dated May, 28, 1999, of his recommendation that the University remove her as Director of Field Experiences. The University later accepted Dr. Ansah's recommendation, and as of June 1, 1999, Black no longer served as director.
¶ At or around the same time, the University decided not to renew Black's employment contract following the end of the academic year. A letter dated May 28, 1999, was sent to Black informing her of the University's decision and that her employment would end on May 11, 2000, upon the completion of the following spring semester. Black's final contract, which she signed in August 1999, expressly stated that "no further employment would be offered." In May 2000, at the conclusion of the spring semester, Black's employment ended, consistent with the letter dated May 28, 1999.
¶ Under the direct authority granted by the IHL, the University had adopted administrative remedies available to faculty members aggrieved by University employment decisions. This remedy included a three-step appeal process, culminating in a hearing before the Faculty Grievance Committee. The aggrieved employee could then appeal the University's personnel decision to the IHL, if not satisfied with the results of the University's hearing.
¶ Black never took advantage of these remedies, despite having received a total of three letters, the latest one dated June 9, 1999.
ANALYSIS
I. DID THE TRIAL COURT ERR IN RULING THAT THE MISSISSIPPI TORT CLAIMS ACT'S ONE YEAR LIMITATIONS PERIOD APPLIES TO BLACK'S CLAIMS OF TORTIOUS INFERENCE WITH HER EMPLOYMENT CONTRACT AND TORTIOUS BREACH OF HER EMPLOYMENT CONTRACT?
¶ Black argues that Mississippi's general three-year statute of limitations, Miss Code Ann. § 15-1-49 (Rev. 1995), which applies to most tort and contract claims, controls her tortious interference and breach claims rather than the Mississippi Tort Claims Act's one-year limitations period, Miss Code Ann. § 11-46-11 (Rev. 2002). Black continued to argue that the Mississippi Tort Claims Act, which defines and limits the State's and public official's tort liability, simply does not apply to her case. This logic is wrong for the following reasons: (1) claims against the State for retaliatory discharge or tortious breach must be brought under the Tort Claims Act; (2) the Tort Claims Act is Black's exclusive remedy because it clearly applies to claims of tortious interference with contract; and (3) Black's actions, including her complaint, admit that the Tort Claims Act applies.
¶ First of all, Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (Miss. 1999), the case cited by Black in support of her claim that Mississippi's catch-all statute of limitations applies, does not address the issue before this Court: whether a claim against the sovereign for tort damages based upon alleged tortious breach is the sort of claim covered by the Tort Claims Act. Paracelsus did not involve a suit against the State or one of its political subdivisions and did not consider whether the State has consented to suits seeking extra-contractual or tort-damages based upon claim of tortious breach. However, this issue was addressed by this Court in City of Grenada v, Whitten Aviation, Inc., 755 So.2d 1208 (Miss.Ct.App. 1999).
¶ In Whitten Aviation, this court held that the Tort Claims Act does not apply to "pure contract actions," reasoning that when the State enters a contract, it waives immunity from suits brought to enforce the contract. Whitten Aviation, 755 So.2d at 1213 (¶ 12). But the Whitten Aviation court also held that the Tort Claims Act clearly applies to claims for tortious breach of contract:
The 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 . . . contract.
Id. (emphasis original). Cf. Employers Insurance of Wausau v. Mississippi State Highway Commission, 575 So.2d 999 (Miss. 1990) (claims for breach of implied warranty brought by third party beneficiary to contract are premised upon tort liability, not contractual obligation).
¶ The Whitten Aviation case definitely rejects Black's argument, and the Tort Claims Act plainly applies to her attempt to recover tort damages from the State and its officials.
¶ In regards to the tortious interference, Black's complaint repeatedly alleges that the University appellees violated common law tort duties, including, that the University appellees "intended . . . to interfere with Black's continuing right to contract" with the University; and that the University appellees "maliciously interfered with Black's valid and enforceable contract and prospective business advantage causing non-renewal of said contract and resulting in injury to Black."
¶ Basically, tortious interference is a tort claim, not a contract claim. Nowhere in Black's brief did she explain why this claim is a contract claim rather than a tort claim or why the general three-year statute of limitations provision applies rather than the Tort Claims Act's one-year limitation period. Black also failed to cite any case law for this proposition.
¶ Under well-established Mississippi law, the duty not to interfere with formation of a contract or another's right to pursue a lawful business, calling, trade, or occupation arises in tort, not contract. See Bailey v. Richards, 236 Miss. 523, 111 So.2d 402 (1959). The tort prohibits interference with business relations that are not the subject of a contract as well as prospective contractual relationships and existing contracts. Hubbard Chevrolet Co. v. General Motors Corp., 682 F. Supp. 873, 877 (S.D.Miss. 1987). Unlike the tort of retaliatory discharge discussed in Paracelsus, the breach of an underlying contract is not a necessary prerequisite or element for pursuing a tortious interference claim, so the Paracelsus reasoning simply does not apply. See Martin v. Memorial Hospital at Gulfport, 130 F.3d 1143, 1151 (5th Cir. 1997) (describing elements of tort under Mississippi law). Since Black's claim of tortious interference is clearly a tort claim, rather than a contract claim, she may only pursue that claim against the State and its officials using the Tort Claims Act.
¶ Second, according to the Tort Claims Act, the remedy provided by it "is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee . . . for the act or omission which gave rise to the claim or suit." Miss. Code Ann. § 11-46-7 (Rev. 2002). In other words, if the Tort Claims Act provides a remedy for an injury caused by official acts or misconduct, then the Tort Claims Act is the exclusive remedy for all claims that may be asserted based upon that misconduct. See City of Jackson v. Sutton, 797 So.2d 977, 980 (¶ 9) (Miss. 2001). Under the plain language of the Tort Claims Act, the message is clear, if the Tort Claims Act affords a remedy for the sovereign's alleged wrongful acts, then that remedy "is exclusive of any other civil action or proceeding" arising out of the "act or omission which gave rise to the claim or suit." Miss. Code Ann. § 11-46-7(1) (Rev. 2002). Also see Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶ 9) (Miss. 1999).
¶ Because the Tort Claims Act provides a remedy for the alleged misconduct by the University appellees, that remedy is exclusive, and Black must comply with the Tort Claims Act requirements.
¶ Lastly, Black states in her complaint that she has fully complied with the Tort Claims Act's requirements. In addition, Black attached several exhibits to her complaint as "evidence" of her compliance with the Tort Claims Act. By Black's own actions, she admits that the Tort Claims Act applies to her claims.
II. DID THE TRIAL COURT ERR IN HOLDING THAT THE PLAINTIFF WAS REQUIRED TO BRING HER CLAIM AGAINST A STATE UNIVERSITY AND VARIOUS STATE OFFICIALS WITHIN ONE YEAR, AS SET FORTH IN THE MISSISSIPPI TORT CLAIMS ACT'S LIMITATION PROVISION, SECTION 11-46-11(3) OF THE MISSISSIPPI CODE?
¶ Black argues that she timely filed her claim under the Mississippi Tort Claims Act because her claim did not "accrue" and the one-year limitations period did not begin to run until her injury occurred on the last date of her employment, or May 11, 2000. There was no case law cited by Black which interprets "accrual" for purposes of the Tort Claims Act's limitation period. Since there in no case law specifically for this issue under the Tort Claims Act, this Court turns to cases interpreting the three year statute, Miss. Code Ann. § 15-1-49, for when a tort action accrues.
¶ Under the general statute of limitations, Miss. Code Ann. § 15-1-49 (Rev. 1995), it is well settled law in Mississippi that a cause of action begins to run from the time of its discovery unless the running of the statute of limitations is tolled by the operation of Code 1942, § 742 (fraudulent concealment of cause of action). Wilson v. Retail Credit Co., 325 F. Supp. 460 (S.D.Miss. 1971, aff'd, 457 F.2d 1406 (5th Cir. 1972). Also under Mississippi law, a cause of action does not accrue until injury occurs. Wheeler v. Magdovitz, 137 F.3d 299 (5th Cir. 1998). The statute, however, contains no definition of "accrual." The Mississippi Supreme Court defined "accrual" as follows in Owens Illinois v. Edwards, 573 So.2d 704, 709 (Miss. 1990): "the cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease." The Edwards court further held: "a cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested. A cause of action must exist and be complete before an action can be commenced, and, when a suit is begun before the cause of action accrues, it will generally be dismissed if proper objection is made." Id. at 706-07.
¶ To the same effect is Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss. 1971), which states that "[t]he tort is not complete until the injury occurs. . . ." In Vidrine v. Enger, the 5th Circuit held that the Mississippi statute commences to run on the date of the wrongful act. Vidrine v. Enger, 752 F.2d 107, 108 (5th Cir. 1984). Since general Mississippi negligence law dictates that a cause of action accrues on the date of the tortious act, this Court applies this rule to the Tort Claims Act milieu and pinpoints "accrual" at the time of injury.
¶ According to Black's complaint, the University appellees tortiously interfered with her contract with their decision not to renew her contract. Since it is undisputed that the University notified Black of its employment decision by letter dated May 28, 1999, any tortious interference or other misconduct causing Black's alleged injuries must have occurred by May 28, 1999, which is almost two years before Black filed her suit.
¶ However, in March 1999, the Mississippi Legislature extended the period of time a notice of claim tolled the statute of limitations for actions brought against governmental entities under the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 through 23 (Rev. 2002). Section 11-46-11(1) provides "that any person having a claim for injury shall proceed as she might in any action at law or equity; provided, however, that ninety days prior to maintaining an action, such person shall file a notice of claim." Additionally, section 11-46-11(3) provides:
[a] notice of claim is required and that the filing of said notice shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, . . . during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant's receipt of notice of denial of claim from the governmental entity.
Roberts v. New Albany Separate School District, 813 So.2d 729, 731 (¶ 5) (Miss. 2002).
¶ Applying this rule to the facts at hand, Black filed two notice letters, one on April 6, 2001, and again on May 8, 2001. However, this Court finds that any tortious interference or other alleged misconduct causing Black's alleged injuries must have occurred by May 28, 1999, and as such, the two notices were outside the one-year time limit. Therefore, the trial court correctly ruled that Black did not bring her suit within one year of the University appellees' "actionable conduct," and her claims are time-barred.
III. EVEN IF BLACK'S CLAIMS WERE NOT TIME-BARRED, WERE BLACK'S CLAIMS PROPERLY DISMISSED BECAUSE OF FAILURE TO EXHAUST HER ADMINISTRATIVE AND APPELLATE REMEDIES?
¶ Even if Black's claims were not time-barred, the circuit court's decision was correct for another reason, Black's failure to exhaust the administrative remedies available to her through the University and the IHL. The IHL is a constitutionally created branch or agency of the State of Mississippi, and as such, its decision and the decisions of the State's public universities, including their employment decisions are entitled to the same deference as the decisions of other state agencies.
¶ The Mississippi Supreme Court clearly held in Smith v. University of Mississippi, 797 So.2d 956, 959 (¶¶ 9-10) (Miss. 2001), that those decisions are entitled to the same deference as the decisions of other state agencies. In Smith, the court considered whether an employee of a state university could maintain an independent action to contest his termination. Smith, 797 So.2d at 959 (¶ 9). The court concluded that Smith, a former employee of the University of Mississippi, could not bring an independent action seeking de novo review of the University's employment decision. Id. at 960-61 (¶¶ 13-18). Rather, Smith's exclusive remedy was the University's administrative appellate process and appeal to the circuit court by writ of certiorari. Id. at 959 (¶ 9). Because Smith failed to exhaust his administrative and appellate remedies, the court ruled that the circuit court did not have jurisdiction to hear Smith's wrongful termination claim and that Smith's claims were barred by the doctrine of re judicata. Id. at 962-63 (¶ 21).
¶ The same result would be appropriate in the present case. The procedure used by Mississippi Valley State University is virtually identical to the University of Mississippi's grievance procedure in Smith. Public policy requires that decisions of administrative tribunals at the state's universities be given the same respect as the decisions of other state agencies. Otherwise, university employees may use the administrative hearing as an opportunity to obtain free discovery of university officials only to ignore the statutory appellate process and re-litigate the adverse employment decision in circuit court. Therefore, because of Black's failure to exhaust the administrative remedies available to her through the University and the IHL, the circuit court's dismissal of Black's claims was proper.
¶ THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE HEREBY ASSESSED TO THE APPELLANT. McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.