                     IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2002-CT-00556-SCT

SHELIA DUPREE, INDIVIDUALLY, AND AS
CONSERVATOR OF THE PERSON AND ESTATE
OF ANNIE SANDERS

v.

PLANTATION POINTE, L.P. d/b/a THE WINDSOR
PLACE

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                       02/12/2002
TRIAL JUDGE:                            HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:              LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                TYLVESTER OTIS GOSS
                                        CONSTANCE SLAUGHTER HARVEY
ATTORNEYS FOR APPELLEE:                 JAMES P. STREETMAN, III
                                        BRIAN DOUGLAS MAYO
                                        WADE G. MANOR
NATURE OF THE CASE:                     CIVIL - TORTS-OTHER THAN PERSONAL
                                        INJURY & PROPERTY DAMAGE
DISPOSITION:                            THE JUDGMENT OF THE COURT OF
                                        APPEALS IS AFFIRMED IN PART AND
                                        REVERSED IN PART; THE JUDGMENT OF
                                        THE LAUDERDALE COUNTY CIRCUIT
                                        COURT IS AFFIRMED - 12/09/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      RANDOLPH, JUSTICE, FOR THE COURT:

¶1.   Shelia Dupree sued Plantation Pointe, L.P. d/b/a The Windsor Place (Windsor Place),

individually and on the behalf of her mother, Annie Sanders, after Sanders was sexually
assaulted at Windsor Place nursing home, a business of Plantation Pointe. The trial court

granted a directed verdict on Dupree’s individual claim for mental and emotional damages.      A

jury verdict was returned in favor of Windsor Place on the remaining claims, and the trial court

entered judgment for Windsor Place. After denial of the Dupree’s motion for a judgment

notwithstanding the verdict and motion for new trial, Dupree appealed.

¶2.      Dupree raised three issues before the Court of Appeals:

         I.      The Trial Court Erred in Denying the Motion for Judgment
                 Notwithstanding the Verdict and in the Alternate Motion for a New Trial;
         II.     The Trial Court Failed to Properly Instruct the Jury; and
         III.    The Court Erred in Excluding Testimony Concerning Mental and
                 Emotional Damages and by Granting a Directed Verdict on the Issue.

¶3.      A divided Court of Appeals affirmed in part, reversed in part and remanded in part the

circuit court’s judgment. Dupree v. Plantation Pointe, L.P., 881 So. 2d 832 (Miss. Ct. App.

2003).    The Court of Appeals affirmed the trial court’s dismissal of Dupree’s claim for mental

and emotional damages. However, the Court of Appeals found that the trial court abused its

discretion in denying Dupree’s motion for a new trial on the remaining issues and reversed and

remanded for a new trial on the remaining issues. The Court of Appeals declined to address

the issue regarding jury instructions.

¶4.      Windsor Place filed for certiorari claiming that the Court of Appeals erred in reversing

and remanding the case for a new trial. As will be discussed, this Court reverses that decision

by the Court of Appeals and reinstates and affirms the judgment based on the verdict and

affirms the trial court’s decision to deny the motion for new trial.

                                                  FACTS

¶5.      Facts derived from the Court of Appeals opinion include:


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¶2.    Annie Sanders, a seventy-six-year-old female, was a resident of Windsor
Place. Plantation Pointe, the defendant in the instant case, does business as
Windsor Place. Uncontradicted testimony showed that Sanders was totally
dependant and bedridden. She was unable to take care of or defend herself or
communicate. She entered Windsor Place as a resident on November 15, 1999.

¶3.        On December 2, 1999, Otis Duff, a seventy-eight-year-old male, who
was another Windsor Place resident was discovered in Sanders' room. Duff was
on top of Sanders with his pants down and penis exposed. Duff had spread
Sanders' legs apart and was moving his hips in a rocking motion. Duff had
[Sanders' arms pinned down].
¶4.        Duff had been admitted to Windsor Place on July 30, 1999. Duff was
over six feet tall and weighed at least 170 pounds. During the early part of his
stay at the Windsor Place, he had been temporarily moved to another facility due
to his behavior. That facility was more secure and able to handle Duff. Sherry
Davis, the nursing administrator for Windsor Place, testified that reports from
Windsor Place showed Duff to be verbally and physically abusive to staff. Duff
would try to kick and bite staff members. He had at one point threatened to kill
[. . .]staff members.
¶5.        Duff also tried to kiss some staff members and made crude references
to sex and sexual activities on numerous occasions, including walking through
the halls naked. On November 29, 1999, Duff made one such comment to a
Windsor Place office worker [. . . .] Duff ended this remark by grabbing his
penis and shaking it at her. Duff later made another similar comment to a dietary
staff member.
¶6.          Duff was also known to have gone into other residents' rooms and
wander the premises on numerous occasions. On November 18, 1999, Duff was
found in another resident's room wearing only a shirt. Davis admitted that one
could assume that if Duff would hurt the staff he would hurt residents.
¶7.        Davis' testimony is quite confusing. At one point she was asked:
           Q.      My question was would you agree with me that the Windsor Place
                   at least failed Ms. Sanders as it relates to this particular policy to
                   provide safeguard against any kind of harsh or abusive treatment?
           A.      I don't think that she received treatment, nor do I think that she
                   was sexually abused at this point.
¶8.        Later Davis admitted that sexual abuse was not tolerated at Windsor
Place and the nursing home failed to protect Sanders from a sexual assault.
¶9.        Davis testified that Windsor Place gave residents documents concerning
dignity, respect, and safety. Upon reading the following mission statement for
Windsor Place, Davis admitted that the nursing home violated the statement as
it related to Sanders:
           The facility is dedicated to offering to the public the finest in
           nursing and rehabilitation for the aged and convalescent. The


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         Windsor Place also provides activities involving pets, children,
         plants and volunteers to promote emotional and physical
         well-being.
¶10. And upon reading the following resident abuse policy for Windsor Place,
Davis admitted that the nursing home violated the policy [. . .] as it related to
Sanders:
         It is the policy of this facility to report all incidents of resident
         abuse to appropriate State and federal officials or agencies: 1.
         Resident abuse, whether physical or mental, will not be tolerated.
         Resident abuse is reported to authorities governing our facility.
¶11. Dee DaCosta, a charge nurse at the Windsor Place who was working at
the time of the attack, testified that Sanders was attacked by Duff. She also
testified that she had reported the attack anonymously to the Attorney General's
Office.
¶12. Debbie Porter and Kimberly Thompson, both certified nursing assistants
working at the Windsor Place at the time of the attack, testified that they were
told to clean Sanders after the attack. This was the nursing home policy for when
residents had to be transported to a hospital. Both also testified as to the abusive
nature of Duff. Thompson testified as to Duff's sexual advances made to staff.
¶13. Crystal Harris, a certified nursing assistant working at the Windsor Place
at the time of the attack, testified as to the abusive nature of Duff, including
sexual advances toward employees and residents.
¶14. Sandra Stewart, a licensed practical nurse at the Windsor Place who was
working at the time of the attack, testified that she was the one who discovered
Duff in Sanders' room. She also testified that Duff was known to have been
combative toward staff.
¶15. Expert testimony was also presented. One of the plaintiff's experts
testified as to the inappropriate measures the nursing home took in regard to
Duff. Another expert testified as to Sanders' mental and emotional state,
although he was unable to give precise damages because of her already
diminished capacity.
¶16. Dupree filed suit in the Circuit Court of Lauderdale County on March 13,
2000. The claim filed on her mother's behalf alleged that Windsor Place had
represented that quality care would be provided, specifically that no sexual abuse
would occur. Dupree also claimed that she suffered mental and emotional
distress when she learned of the assault.
¶17. Prior to trial, Plantation Pointe filed a motion in limine to exclude the
testimony of mental and emotional distress of Dupree. The trial court granted
the motion. The case was tried February 5 through February 7, 2002. At the
conclusion of the plaintiff's case in chief, Plantation Pointe moved for a
directed verdict on the issue of Dupree's mental and emotional damages. The
motion was granted. At the conclusion of the trial, the judge refused to grant a
jury instruction offered by the plaintiff that would allow the jury to consider


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       mental and emotional damages of Dupree. The jury returned a verdict, ten to
       two, in favor of Plantation Pointe. The plaintiff filed a motion for a judgment
       notwithstanding the verdict or in the alternate a new trial. The motion was
       denied. The plaintiff perfected the appeal.

Dupree, 881 So. 2d at 833-35.

                                           DISCUSSION

       I. J.N.O.V. and new trial.

¶6.    Following the verdict, Dupree moved for JNOV or in the alternative a new trial.

Because the Court of Appeals reversed the trial court based on its decision to deny a new trial,

this opinion focuses on the motion for a new trial as opposed to the denial of JNOV.

¶7.    Motions for a new trial are made pursuant to Rule 59.            Trial courts have authority to

grant a new trial, where, in the exercise of their sound discretion, they regard such a verdict as

being contrary to the substantial weight of the evidence. C & C Trucking Co. v. Smith, 612

So. 2d 1092, 1099 (Miss. 1992). A denial of a request for new trial will be reversed only when

such denial amounts to a abuse of that judge's discretion. Maxwell v. Ill. Cent. Gulf R.R., 513

So. 2d 901, 908 (Miss. 1987).          This Court “should give substantial weight, deference and

respect to the decision of the trial judge in matters such as this.” C & C Trucking Co., 612

So.2d at 1099.

¶8.    In finding that the trial court abused its discretion in denying the motion for a new trial,

the Court of Appeals stated:

       ¶20     It is apparent that the trial judge abused his discretion when he failed to
       grant a new trial. The testimony is uncontradicted. Sanders was a resident at the
       Windsor place. She was unable to care for or protect herself.

       ¶21     Duff was also a resident at the Windsor Place. He was known to wander
       into other resident's rooms. He was known to be abusive, both with physical

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        violence and crude sexual displays and comments. Uncontradicted testimony
        from current and former employees of the Windsor Place substantiate this.

        ¶22      Duff sexually assaulted Sanders in her room at the Windsor Place. The
        nursing home was to provide a safe residence for Sanders. The overwhelming
        weight of the evidence shows they were aware of the potential danger Duff
        posed and did not take action to prevent it. Davis admitted that if Windsor Place
        had taken some action in regard to the notice, the sexual assault on Sanders
        would not have occurred. It is for this reason we reverse and remand for a new
        trial on Sanders' claim.

Dupree, 881 So. 2d at 836.

¶9.     The majority opinion by the Court of Appeals is flawed in its analysis and overlooks

substantial evidence supporting the verdict.      Specifically, it failed to consider the Department

of Human Services’ investigation into the incident.       Further, it failed to note that Duff was a

dementia patient.    There was no mention of Windsor Place’s limited authority in transferring

problematic patients.   Contrary to the conclusion of the Court of Appeals majority, much of

the evidence was contradicted. Though reasonable people may disagree as to whether Windsor

Place was negligent, in this instance a jury by a vote of ten to two found that it was not. As will

be discussed, there was substantial evidence supporting the verdict.

¶10.    We agree with Judge Griffis’s separate opinion that there is nothing in the record that

would indicate the jury did anything other than fulfill its sworn duty to resolve the disputes of

fact.   This duty includes determining whether Sanders carried her burden of proof by a

preponderance of the evidence that Windsor Place was negligent or that damages were

proximately caused by any negligent act.          Id. at 837-38.       Like Judge Griffis, this Court

considers facts and discusses how the verdict was supported by the testimony. See id. at 838-

40.



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¶11.         On December 2, 1999, an employee of Windsor Place found Duff in Sanders’s room.

Duff had his pants down and his penis out, and he was in the bed on top of Sanders moving his

hips in an up and down motion.              Ensuing medical examinations did not reveal that any

penetration had occurred. There was no evidence that any sexual touching or rape occurred nor

was there evidence of blood or discharge.

¶12.         Sherry Davis, administrator of Windsor Place, testified that all residents of Windsor

Place were protected to the best of the nursing home’s ability and that it was not negligent in

this instance.       She testified that the incident was reported to the Attorney General’s office

pursuant to the Mississippi Vulnerable Adults Act.       After an investigation, the Department of

Health found that Windsor Place was not negligent in its treatment and protection of Sanders.

The Court of Appeals majority opinion fails to discuss the fact that the investigation by the

DHS supported the verdict.

¶13.         Davis further testified regarding the duties owed to Duff and that it was not uncommon

for Alzheimer’s patients, like Duff, to talk and act in a sexually suggestive manner.          She

testified regarding the decision to allow Duff to remain at Windsor Place despite his behavior

and that only a resident’s family or treating physician could transfer a resident to another

facility.     See 42 C.F.R. § 483.40 (2004) (only a physician may admit an individual to another

facility).     She testified that Windsor Place sought to have Duff relocated and informed Duff’s

family regarding his behavior. However, Duff’s family was waiting for a spot to open at the

Veteran’s hospital and thus took no action.        Thus, at this point Windsor Place’s options for

transferring Duff elsewhere were limited.




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¶14.    Dee DaCosta, a registered nurse, was on duty on the night of the incident.          DaCosta

initially reported the incident to the Attorney General’s office.     She testified that on the night

of the incident, the nursing home was properly staffed and that no member of the nursing home

staff did anything improper in the treatment of Sanders.         She stated measures were taken to

protect the residents from Duff.       Further, she testified that only a doctor had the power to

restrain or transfer Duff and that the doctors did not do so.

¶15.    Crystal Harris, a certified nurse's aide at Windsor Place, testified that Windsor Place

did not ignore Duff in his care and supervision. Another CNA, Kimberly Thompson, testified

that she provided more of her attention to Duff when he was combative and paid close attention

to Sanders.

¶16.    Thompson and Sheila Glover, in-service coordinator for Windsor Place, testified that

the nursing home did not deviate from the standard of care owed to Sanders. Glover testified

that Windsor Place made several unsuccessful attempts to have Duff transferred.          Like Davis,

Glover testified regarding Windsor Place’s limited authority to transfer Duff.         Further, she

testified regarding conversations between nursing staff and treating physicians regarding Duff’s

behavior.

¶17.    Sandra Stewart, a geriatric nurse for over twenty-two years, testified that Windsor Place

provided appropriate care for both Sanders and Duff.            She also recalled communicating with

Duff's treating physicians regarding his behavior throughout his residency.     She did not believe

that anyone at Windsor Place was negligent in the care of Sanders, even in light of this

incident.




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¶18.      Kathleen Meyer testified as an expert witness for Sanders.          On cross-examination, she

admitted that ordering the transfer of a resident is within the exclusive purview of the treating

physician, not Windsor Place.       Meyers offered no testimony of proposed treatment that she

believed would have prevented the incident.        She agreed that wandering in and out of other

residents' rooms was a common characteristic of Alzheimer's and dementia patients, such as

Duff.     Meyer stated that nursing homes were only allowed to restrain residents after those

residents had met requirements outlined in state and federal regulations, which were not

present here. See 42 C.F.R. § 483.13(a) (2004) (resident has a right to be free from any

physical or chemical restraints).     She testified that the Windsor Place employees properly

documented and reported Duff's behavior to the doctors.

¶19.      Dr. David Marion testified that he only observed Sanders on one occasion and that he

did not review all of her medical records.        On cross-examination, Dr. Marion also stated: “I

don’t think anyone can say to a certainty how she was affected or unaffected by that particular

event.”

¶20.      Thompson and Debbie Porter testified that when they went into Sanders’s room after

the incident, Sanders appeared to be calm and not agitated, as if nothing unusual had occurred.

¶21.      No other evidence as to damages allegedly suffered by Sanders was presented. Dupree

presented no evidence to establish that Sanders incurred a physical injury or that she even knew

that the incident even occurred. There was no evidence of any physical injury, such as bleeding,

discharge, bruising, cuts, scratches or scraping to the skin of Sanders. There was no evidence

of any sexual touching or penetration. Indeed, nothing was presented to establish that she was

harmed or injured either mentally or physically by Duff’s aberrant conduct.


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¶22.    Based on the foregoing, the trial court did not abuse its discretion, and the jury verdict

was supported by the evidence. As to the elements of duty and breach, the testimony of Davis,

DaCosta, Harris, Thompson and Stewart all supported the jury’s verdict.                 Each testified

regarding the standard of care and the fact that Windsor Place had a duty to ensure a safe

environment for its residents.       However, much of their testimony supported a finding that

Windsor Place did not breach its duty.         Several testified regarding Windsor Place’s lack of

authority to transfer or discharge Duff.

¶23.    Duty and breach aside, there was no testimony supporting injury to Sanders. As already

stated, there was no physical evidence.        Thompson and Porter testified that Sanders was not

conscious of the incident.        Only Dr. Marion testified further about the alleged injuries.

However, he admitted that based on Sanders’s limited capacity, he could not testify to a

reasonable degree of medical certainty as to the effect of the incident on Sanders.

¶24.    Though there was evidence and testimony in favor of Dupree/Sanders, there was

sufficient contradictory evidence and testimony to support the jury’s verdict.        Accordingly, the

trial court did not abuse its discretion. A new trial may be granted where the verdict is against

the overwhelming weight of the evidence, or when the jury has been confused by faulty

instructions, or when the jury has departed from its oath and its verdict is a result of bias,

passion, and prejudice. Griffin v. Fletcher, 362 So. 2d 594, 596 (Miss. 1978). As there is

no evidence in this record to support that any of the aforementioned occurred, the decision

from the Court of Appeals must be reversed on this issue, as there was conflicting evidence

presented by both sides and the great deference that this Court affords juries.

        II. Jury instruction.


                                                   10
¶25.     In this case, Dupree alleges that the trial judge failed to properly instruct the jury by not

giving the following instruction:

         You are instructed to return a verdict for the Plaintiffs and against the
         Defendants.

It is evident that what Dupree was seeking was a peremptory instruction.          We find that in this

case Dupree was not entitled to such an instruction.

¶26.     This Court's standard of review for the denial of a judgment notwithstanding the verdict,

peremptory instructions, and directed verdict is stated as follows:

         [T]his Court will consider the evidence in the light most favorable to the
         appellee, giving that party the benefit of all favorable inference that may be
         reasonably drawn from the evidence. If the facts so considered point so
         overwhelmingly in favor of the appellant that reasonable men could not have
         arrived at a contrary verdict, we are required to reverse and render. On the other
         hand if there is substantial evidence in support of the verdict, that is, evidence
         of such quality and weight that reasonable and fair minded jurors in the exercise
         of impartial judgment might have reached different conclusions, affirmance is
         required. The above standards of review, however, are predicated on the fact that
         the trial judge applied the correct law.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss. 1997). The comment to Rule 50,

which provides for motions for a directed verdict and for judgment notwithstanding the verdict,

states: “Rule 50 is a device for the court to enforce the rules of law by taking away from the

jury cases in which the facts are sufficiently clear that the law requires a particular result.”

Miss. R. Civ. P. 50 cmt.

¶27.      Due to the fact that there were disputed facts of whether the defendant was negligent

and whether the Plaintiff suffered damages, we cannot under these circumstances find that the

trial court erred in refusing a peremptory instruction.           Consequently, this issue is without

merit.


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        III. Mental and emotional damages.

¶28.    In its discussion, the Court of Appeals noted that Dupree was not near the assault scene,

and the facts in this case did not lend themselves to third person recovery.                Therefore,

affirming the trial court’s decision, the Court of Appeals concluded that Dupree was unable to

recover damages for mental and emotional distress. This Court finds no error in the Court of

Appeals’ analysis, and accordingly affirms.

                                              CONCLUSION

¶29.    For these reasons, we affirm in part and reverse in part the judgment of the Court of

Appeals, and we reinstate and affirm the judgment of the Lauderdale County Circuit Court.

¶30. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART; AND THE JUDGMENT OF THE LAUDERDALE COUNTY
CIRCUIT COURT IS AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




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