                                IN THE UNITED STATES COURT OF APPEALS
                                         FOR THE FIFTH CIRCUIT


                                                             No. 99-60174
                                                           Summary Calendar


LEROY SPRING, ADMINISTRATOR OF THE
ESTATE OF ELIZABETH REILLY, DECEASED,

                                                                                                                 Plaintiff-Appellant,

                                                                     versus

BEVERLY ENTERPRISES MISSISSIPPI, INC. d/b/a
SOUTHWEST EXTENDED CARE CENTER,

                                                                                                                 Defendants-Appellees.



                                        Appeal from the United States District Court
                                          for the Southern District of Mississippi
                                                    (3:96-CV-168-WS)


                                                             January 25, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges

PER CURIAM:*

           This case involves an allegation of an assault and battery committed against a nursing home

resident by an employee of the nursing home. At the close of the plaintiff’s case at jury trial, the

court granted the defendant’s motion for judgment as a matter of law. For reasons stated below, we

affirm the trial court’s ruling regarding the judgment as a matter of law, but vacate the trial court’s

award of attorneys’ fees and costs..

                                             FACTUAL AND PROCEDURAL HISTORY

           Ms. Elizabeth Reilly was a 90 year-old nursing home resident at Southwest Extended Care

Center (the “nursing home”), a California corporation with its principal place of business outside the

state of Mississippi. One night while at the nursing home, Ms. Reilly used her call button to summon

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
a nurse. According to Ms. Reilly, a nursing home employee entered her room, uttered “ah you,”

slapped her on the head and threw her call button away. She stated that she could not identify the

person who slapped her, other than that the person was a woman. The incident was reported to Linda

Hampton (“Hampton”), the director of the nursing home, and Gary Stafford (“Stafford”), the

executive director of the nursing home. The following day, a full body examination was ordered to

determine whether Ms. Reilly had sustained any bruising. The examination revealed no evidence that

Ms. Reilley had been slapped.

         In 1996, Leroy Spring (“Spring”), Ms. Reilly’s nephew, filed a complaint as next-of-friend

in Mississippi state district court against the nursing home alleging assault and battery. Spring

sought compensatory and punitive damages. The case was removed to federal district court for the

Southern District of Mississippi based on diversity of citizenship. The district court conducted a

competency hearing to determine whether the suit should proceed in Ms. Reilly’s name or in her

nephew’s name. The co urt determined that Ms. Reilly was competent and that the suit should

proceed in her name. Before trial, Ms. Reilly passed away and Spring became Administrator of her

estate. As such, Spring became the real party in interest under Federal Rules of Civil Procedure

17(a), and the suit proceeded to trial in Spring’s name as the administrator of the estate. The first

trial resulted in a mistrial based on an evidentiary ruling, which we address below. The court also

dismissed the plaintiff’s claims for punitive damages at the first trial. At the second trial, the nursing

home moved for a judgment as a matter of law (“JMOL”) at the close of the plaintiff’s case. The

court heard arguments and granted the nursing home’s motion. The court also awarded the defendant

attorneys’ fees and costs. The plaintiff now appeals the court’s judgment and evidentiary rulings

below.

                                              DISCUSSION

         Spring claims that the district court improperly granted judgment as a matter of law to the

nursing home. Specifically, Spring contends that he established a prima facie case to prove the

intentional torts of assault and battery under Mississippi law. Spring also attacks the district court’s


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evidentiary rulings. Finally, Spring argues that the court erred when it dismissed his claim for

punitive damages and awarded attorneys’ fees.

I.       District Court’s Judgment as a Matter of Law

         A.     Standard of Review

         We review de novo a trial court’s grant of a judgment pursuant to Rule 50(a) as a matter of

law, see Deffenbaugh Williams v. Walmart Stores, Inc. 188 F.3d 278, 285 (5th Cir. 1999), applying

the same standard that the district court used. Aetna Gas &. Sur. Co v. Pendleton Detectives of Miss,

Inc, 182 F.3d 376, 377 (5th Cir. 1999). A court may grant a JMOL if a party has been fully heard

by the jury on an issue, and there is no legally sufficient evidentiary basis for a reasonable jury to have

found for that party with respect to that issue. See Rule 50(a). The motion is properly granted if the

facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes

that reasonable persons could not arrive at a contrary verdict. Information Communication Corp. V.

Unisys Corp., 181 F.3d 629, 633 (5th Cir. 1999). In reviewing a Rule 50(a) judgment, we consider

all the evidence--not just the evidence which supports the non-mover’s case. See id. A mere scintilla

of evidence is insufficient to present a question for the jury See Deffenbaugh,.188 F.3d at 285.

         B.     Assault and Battery Under Mississippi Law

         In the instant case, the district court ruled that the plaintiff failed to sustain his claims of

intentional torts, namely assault and battery, at the close of his case.2 Because this case comes to

us under diversity jurisdiction, we look to Mississippi law regarding the substantive elements of the

intentional torts of assault and battery. See Rogers v. Corrosion Prods., Inc., 42 F.3d 292, 295 (5th

Cir.1995) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).


     2
     In granting the JMOL, the district court opined from the bench that in the alternative the suit
should be dismissed because the plaintiff failed to prove damages that met the jurisdictional “amount
in controversy” ($75,000) under diversity jurisdiction. However, it is well settled that once a federal
court exercises jurisdiction under 28 U.S.C. § 1332, subsequent events which reduces the amount
claimed under the jurisdictional minimum will not deprive the court of jurisdiction. See Seafoam, Inc.
v. Barrier Systems, Inc,, 830 F.3d 62, 66 (5th Cir. 1987). Nevertheless, this erroneous alternative
ruling is inconsequential since we find adequate grounds to support the district court’s JMOL which
we discuss below.

                                                    3
To determine state substantive law, we look to the state’s constitution, statutes, and final decisions

of the state’s highest court. See Transcontinental Gas Pipe Line Corp. v. Transportation Ins. Co.,

953 F.2d 985, 988 (5th Cir.1992). Assault and battery are intentional torts under Mississippi law.

See Miss. Code Ann. § 15-1-35. An assault occurs where a person “acts intending to cause a harmful

or offensive contact with the person of the other or a third person, or an imminent apprehension of

such a contact, and the other is thereby put in such imminent apprehension.” See Webb v. Jackson,

583 So.2d 946, 951 (Miss. 1991)(quoting the Restatement (Second) of Torts § 21 (1965)). A battery

goes one step further in that harmful contact actually occurs. Id. (quoting the Restatement (Second)

or Torts § 13 (1965)). Essential to each is the element of intent.

              Our de novo review of the trial transcript supports the district court’s JMOL. The only

substantive evidence introduced to establish the assault and battery came from Ms. Reilly’s video

taped testimony. She stated t hat someone brushed across her cheek seemingly slapping her.

However, she could not identify the person who had allegedly slapped her. Although intent may be

inferred from the facts and circumstances, Spring failed to put forth evidence that would allow a

reasonable inference of intent. The examination conducted the day after the alleged incident revealed

no physical bruising or marks to indicate that she was slapped or otherwise physically abused. Ms.

Reilly testified that the alleged slap did not hurt her physically. Based on the scant evidence presented

by the plaintiff, we find that the requisite intent was not established to sustain an action for an assault

and battery.3 Therefore, the district court correctly granted a JMOL for these claims.4

II.           District Court’s Evidentiary Rulings

              A.     Hearsay (State-of-Mind Exception)



          3
      Although the district court found that Spring failed to show that Ms. Reilly suffered actual
damages, this finding is not dispositive to our holding since a showing of actual damages is not
required to sustain an intentional tort action for assault and battery under Mississippi law. See
Bumgart v. Bailey, 247 Miss. 604, 156 So.2d 823 (Miss. 1963).
      4
   Because we find that the plaintiff failed to establish the requisite intent for an assault and battery,
we need not address whether vicarious liability is applicable.

                                                     4
        Spring claims that the district court improperly precluded him from testifying that Ms. Reilly

had told him that the incident had “scared” her and made her afraid. Although the statement is

hearsay, Springs argues that the testimony was admissible because it related to Ms. Reilly’s state of

mind. We review a district court’s evidentiary rulings for abuse of discretion. See Wilson v. Woods,

163 F.3d 935, 936 (5th Cir.1999); Caparotta v. Entergy Corp., 168 F.3d 754, 755-56 (5th Cir.1999).

Under the Federal Rules of Evidence 808(3), a statement as to the declarant’s then existing state of

mind is admissible, and thus is an exception to the general prohibition against hearsay testimony under

Federal Rules of Evidence 802. Although a witness may testify to what the declarant stated as to the

declarant’s then existing state of mind, the “state-of-mind exception does not permit the witness to

relate any of the declarant’s statements as to why he held the parti cular state of mind, or what he

might have believed that would have induced the state of mind.” United States v. Liu, 960 F.2d 449,

452 (5th Cir. 1992)(quoting United States v. Cohen, 621 F.2d 1223, 1225 (5th Cir. 1990) reh’g denied,

636 F.2d 315 (5th Cir. 1981) (emphasis added).

        In the instant case, the district court granted a mistrial in the first trial because the plaintiff

improperly attempted to introduce that Ms. Reilly was scared because of the alleged incident. At the

second trial, Spring proffered testimony to the court that Ms. Reilly told him that the alleged incident

scared her and made her afraid. Thus, we find that the district court properly excluded the testimony

because Spring’s proffer related to the reason why Ms. Reilly was scared and afraid, which is not

permissible under the state-of-mind exception to the hearsay prohibition. Therefore, the district court

did not abuse its discretion.

        B.      Second Slapping Incident

        Spring claims that the district court improperly precluded him from testifying that Ms. Reilly

had told him during a visit to the nursing home about a second slapping incident that allegedly

occurred after the initial complaint was filed.    Springs argues that the testimony corroborates the

first incident which forms the basis for the instant case. The court ruled that the evidence was

inadmissible hearsay.


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        Hearsay is an out-of-court statement offered for the truth of the matter asserted. See

FED.R.EVID. 801(a). The statement Ms. Reilly related to Spring out of court about the second

slapping incident is classic hearsay. Spring do es not establish that the testimony meets any of the

hearsay exemptions or exceptions under the Federal Rules of Evidence Furthermore, Spring does

not show that the statement was offered for a proper non-hearsay purpose, for example, notice or

state of mind. As such, the trial court did not abuse its discretion.

        C.      Ms. Reilly’s Unwillingness to File Suit          .

        Spring claims that the district court erred when it permitted the nursing home to read into

evidence statements from Ms. Reilly’s deposition regarding her unwillingness to file a lawsuit against

the nursing home. Spring claims that the evidence was unduly prejudicial. At trial, the district court

ruled that Ms. Reilly’s deposition testimony regarding her unwillingness to sue the nursing home was

relevant to show her state of mind and the quantum of harm.

        Under Federal Rules of Evidence 403, relevant evidence may nonetheless be excluded if its

probative value is substantially outweighed by unfair prejudice. Whether evidence is admissible is

a question within the sound discretion of the trial court. "[T]he trial judge has wide discretion [in

making a Rule 403 determination and] . . . the appellate court will not reverse unless the trial [court]

has clearly abused its discretion." Buford v. Howe, 10 F.3d 1184, 1189 (5th Cir. 1994) (quoting

Wright v. Hartford Accident & Indem. Co., 580 F.2d 809, 810 (5th Cir.1978)). In the instant case,

the plaintiff’s claim for damages included physical injury, humiliation, and mental anguish. As such,

the Ms. Reilly’s unwillingness to proceed with the lawsuit is probative to the quantum of damages

she allegedly suffered. Although, the testimony is prejudicial to the plaintiff’s case, the mere fact that

evidence is prejudicial is insufficient to exclude its admissibility under Rule 403. In order to trump

the presumption of admissibility of relevant evidence under Rule 403, the prejudicial nature of the

evidence must be unfair and the prejudice must substantially outweigh the evidence’s probative value.

Because Spring does not overcome the presumption of admissibility under Rule 403, the district court

did not abuse its discretion.


                                                    6
       D.      Abuse Involving Another Resident

       Spring claims that the court erred when it precluded him from testifying that Ms. Reilly had

told him about another incident of abuse involving a former roommate of Ms. Reilly at the nursing

home that occurred before incident involving Ms. Reilly. Spring argues that the testimony is relevant

because it shows that Ms. Reilly was afraid that the nursing home would treat her in a similar fashion.

The court excluded the evidence because Spring could not establish a proximate time frame for when

the incident occurred.

       Ms. Reilly resided at the nursing home from approximately1992 to 1996. The alleged

incident involving Ms. Reilly occurred in 1996. Because Spring could not establish a time frame

for when the incident occurred involving the roommate within the 4-year period Ms. Reilly

resided at the nursing home, Spring cannot demonstrate that the concerns the district court

expressed regarding remoteness were unwarranted. Although Spring argues that the alleged

incident was admissible state-of-mind evidence, Spring cannot not testify as to what caused or

produced Ms. Reilly’s state of mind. See Liu, supra. Under these circumstances, the district

court’s ruling did not amount to an abuse of discretion.



III.   Punitive Damages

       Spring contends that the court improperly dismissed his claim for punitive damages.

Under Mississippi law, punitive damages are generally awarded for heightened torts which are the

product of gross, callous, or wanton conduct, often accompanied by fraud and deceit. State

Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242 (Miss.1985). Moreover, Mississippi law

is clear that punitive damages are not recoverable absent an award of actual damages. Hopewell

Enters., Inc. v. Trustmark Nat'l. Bank, 680 So.2d 812, 820 (Miss.1996); Allen v. Ritter, 235

So.2d 253 (Miss.1970); Miss. Power Co. v. Jones, 369 So.2d 1381 (Miss.1979).




                                                  7
         Because Spring failed to establish that the nursing home engaged in improper, intentional,

malicious, or wanton conduct, or that Ms. Reilly suffered actual damages, we find that the district

court did not err or abuse its discretion when it dismissed the punitive damages claim.

IV.      Attorneys’ Fees

      Spring claims that the district court abused its discretion when it awarded attorneys’ fees to

the nursing home. To support this contention, Spring points out that the nursing home did not

request attorneys’ fees in the pretrial order, nor did it request attorneys’ fees after the JMOL was

entered. Furthermore, Spring contends that the attorneys’ fees award was not imposed as a

sanction pursuant to Rule 11 of the Federal Rules of Civil Procedure and that the district court did

not make a detailed factual finding to support its attorneys’ fees award. As such, Spring

maintains that the district court’s sua sponte award of attorneys’ fees amounted to an abuse of

discretion. After a careful review of court’s ruling, we find that Spring’s claim has merit.

         Under the “American Rule,” the prevailing party generally is not entitled to recover

attorneys’ fees from the non-prevailing party. See Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975); see also Galveston

County Navigation District No. 1 v. Hopson Towing Company, Inc., 92 F.3d 353, 356 (5th Cir.

1998). Unless provided by an enforceable contract or statute, litigants are responsible for their

attorneys’ fees. Id. at 255-57, 95 S.Ct. at 1621. Although in the instant case, the parties did not

enter a contract to award attorneys’ fees nor was the attorneys fees’ award was made pursuant to

a statute, the court nevertheless has inherent powers to assess attorney’s fees . . . “when the

losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’” Id. at

258-259, 95 S.Ct. at 1622 (citations omitted). It is well settled, that the threshold for the use of

this inherent power is high, and once the power is invoked, it must be exercised with restraint and

discretion. See Maguire Company v. City of Houston, 143 F.3d 205, 209 (5th Cir.1998).

Therefore, before imposing attorneys’ fees under its inherent powers, the district court must make

a specific finding that a party acted in bad faith.


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       In the case at hand, the court entered a judgment which stated in pertinent part: “For

reasons assigned in [the] bench opinion, the court concludes that judgment should be entered in

favor of the defendant and against the plaintiff and that the defendant should be awarded its costs

of litigation, including reasonable attorneys’ fees.” (emphasis added). The bench opinion is

absent any finding that Spring or his counsel acted in “bad faith,” or that the litigation was

“vexatious, wanton, or oppressive.” Essentially, the bench opinion reviews the plaintiff’s case-in-

chief and discusses the grounds for the JMOL. Because the court failed to make the requisite

factual finding, we find that the court abused its discretion when it awarded attorneys’ fees to the

nursing home. Thus, we vacate this portion of the judgment.

                                            CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s evidentiary rulings and

judgment as a matter of law and VACATE the attorneys’ fees portion of the judgment.




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