                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                        NO. 1998-CA-01001-COA
ROBERT DUBARD                                                                                APPELLANT
v.
BILOXI H.M.A., INC. D/B/A BILOXI REGIONAL MEDICAL CENTER                                        APPELLEE

DATE OF JUDGMENT:           04/17/1998
TRIAL JUDGE:                HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     ROBERT W. SMITH
ATTORNEYS FOR APPELLEE:     STEPHEN GILES PERESICH
                            J. HAL ROSS
                            KATHARINE MALLEY SAMSON
NATURE OF THE CASE:         CIVIL - CONTRACT
TRIAL COURT DISPOSITION:    THE TRIAL COURT GRANTED SUMMARY JUDGMENT
                            TO DEFENDANT/APPELLEE AND DISMISSED THE SUIT
                            OF PLAINTIFF/APPELLANT WITH PREJUDICE
DISPOSITION:                REVERSED AND REMANDED - 07/20/1999
MOTION FOR REHEARING FILED: 08/03/99; denied 10/19/99
CERTIORARI FILED:           11/03/99; granted 01/27/2000
MANDATE ISSUED:




BEFORE KING, P.J., BRIDGES, AND LEE, JJ.

LEE, J., FOR THE COURT:




¶1. Robert Dubard appeals the trial court's granting of summary judgment to Biloxi Regional Medical
Center claiming that there were genuine issues of material fact regarding that: 1) Biloxi Regional breached a
contract for employment or, in the alternative, that it wrongfully discharged Dubard, 2) that Dubard is
entitled to equitable relief, and 3) punitive damages should have been awarded. Consequently, summary
judgment should not have been granted. We agree with the appellant that there are genuine issues of
material fact regarding these issues and reverse and remand accordingly.
                                     STATEMENT OF THE FACTS

¶2. In March 1996, Robert Dubard (Dubard) met with officials of Biloxi Regional Medical Center to
discuss potential employment as a Certified Registered Nurse Anesthetist (CRNA). At that time he and his
wife Pat, a nurse practitioner, lived and worked in Grenada. On April 5, 1996, Nancy Fodi, the
administrator of Biloxi Regional, sent a letter to Dubard and his wife offering employment. The letter
detailed the job positions, benefits, and respective salaries. The applicants orally accepted these offers. On
April 8, after receiving the written offer, Dubard executed an applicant's statement. This statement stated
that "its receipt does not imply that the applicant will be employed." It also stated that "employment will be
conditioned upon a post-offer medical examination performed prior to employment." The applicant's
statement further advised the applicant that employment could be terminated with or without cause and with
or without notice, at any time, at the option of either the company or the applicant.

¶3. Pat Dubard moved to Biloxi in May 1996 because of the urgency of the hospital's need to staff her
position of employment. Dubard stayed in Grenada with the Dubard's children in order to give his employer
the required two-three months' notice for his resignation on June 14. During this time Dubard took the
necessary steps to effect the move for the family. An itemization of Dubard's moving expenses, lost wages,
and incidental costs totaled $63,834.12. He was scheduled to begin work at Biloxi Regional on July 1,
1996.

¶4. On Monday, June 24, Dubard was contacted by the Human Resources Department of Biloxi Regional
to schedule an appointment for Tuesday, June 25 for pre-employment processing, including a drug screen
and tuberculosis skin test. Dubard agreed to come in on Tuesday but explained that he had just taken a
Darvocet to relieve pain from muscle soreness caused from moving. He was told that that could be noted
and to bring his prescription for the Darvocet when he came in for his appointment. At that time Dubard
told the Human Resources representative that he had no prescription and that the drug was one prescribed
to his mother-in-law.

¶5. Dubard went to his appointment on Tuesday and filled out state and federal tax forms and was injected
for the skin test but he did not take the blood test for drug screening on that day. Instead, Dubard took the
blood test on Wednesday, June 26, the date for which it was rescheduled. He was also scheduled to return
on the morning of Friday, June 28 to have his skin test read, to have his pre-employment physical exam,
and to report to Human Resources. Dubard failed to appear at the hospital for his appointment as
scheduled on Friday but he did stop by the hospital on that day to pick up tickets for a casino show on his
way to a loan closing at his attorney's office.

¶6. Dubard stated that a CRNA from the hospital called him around noon on his mobile phone to tell him
that he had missed his appointment. Dubard claims he had forgotten about the appointment until reminded
by the call. He said he went to the hospital Friday afternoon around 3:00 to have his skin test read but that
because the hospital routine provided for such readings only during the morning hours he was not able to
have the test read.

¶7. On Monday, July 1 Dubard reported to Biloxi Regional at 6:00 a.m. and had a physical, however his
skin test could no longer be read. Though the skin test takes only seconds to read, the actual procedure
from the time of the injection until the time that the results can be read is one that requires several days.
When Dubard reported to work at 6:30 that morning he was advised that the offer of employment had
been withdrawn because he had not shown the trust and dependability upon which the anesthesiology
department was built since he had failed to complete the pre-employment processing requirements in a
timely fashion as he had been instructed. At the suggestion of the hospital administrator, he was reinjected
for the skin test later that day, should Dr. Harris, the head of the anesthesiology department, change his
mind regarding Dubard's employment.

                                         CONCLUSIONS OF LAW

¶8. Miss. R. Civ. P. 56 (c) states that summary judgment shall be entered "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
When a party opposing summary judgment on a claim as to which that party will bear the burden of proof
at trial, fails to make a showing sufficient to establish an essential element of that claim, then all other facts
are immaterial and the moving party is entitled to judgment as a matter of law. Crane v. Cleveland Lodge
1532, 641 So. 2d 1186, 1188 (Miss. 1994).

                                               ISSUES OF LAW

I. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT BILOXI
REGIONAL DID NOT BREACH A CONTRACT OF EMPLOYMENT OR, IN THE
ALTERNATIVE, THAT IT DID NOT WRONGFULLY DISCHARGE DUBARD?

¶9. It is undisputed that there was no written contract of employment. In fact, the applicant's statement that
Dubard signed after receiving the written offer for employment from Biloxi Regional specifically stated that
there was no guarantee of employment. Assuming that an oral contract for employment between Dubard
and Biloxi Regional existed, such a contract was conditioned upon the completion of "a post offer medical
examination performed prior to employment," as stated in the applicant's statement which Dubard signed. A
condition precedent must be performed before an agreement of the parties becomes a binding contract.
Turnbough v. Steere Broadcasting Corp., 681 So. 2d 1325, 1327 (Miss. 1986). Dubard does not
dispute that he failed to complete these requirements. He argues, however, that he substantially completed
all of the requirements except for having the PPD skin test read, which he describes as a "30 second
procedure." Dubard also argues that the hospital had waived the requirement for a pre-employment
physical for other employees, including his wife, indicating bad faith on the part of the hospital in not
allowing him a waiver of this condition precedent for employment as well. We find that there are genuine
issues of material fact regarding the circumstances upon which Biloxi Regional had waived this condition
precedent for other employees. Though there is an indication that Pat Dubard's physical was waived
because of the urgency of the hospital to fill her position of employment, inferences must be drawn as to the
conditions and matters of consideration under which the waiver was granted. There is no evidence
regarding whether Biloxi Regional scheduled a physical for Pat Dubard and whether she failed to appear for
such an appointment, if it was made. Whether Pat Dubard's waiver occurred after a failure to appear for a
scheduled appointment is an unanswered question of material fact. Other unanswered questions include the
nature of her work as emergency manager and that of others as compared to Dubard's in regard to patient
contact as a material fact that has not been addressed in regard to the hospital's willingness to waive the
physical for some and not for Dubard.

¶10. Assuming, in the alternative, that Dubard was employed at Biloxi Regional, he was at best an "at will"
employee. Dubard himself testified that any prospective employment was for an indefinite period of time and
the offer extended by Biloxi Regional did not define a specific term of employment. In this State, where
there is a contract which does not specify the term of the worker's employment, the relationship may be
terminated at will by either party. Perry v. Sears Roebuck and Co., 508 So. 2d 1086, 1088 (Miss. 1987).
Dubard seems to argue that the existence of an employee handbook at Biloxi Regional removed him from
the employment at will doctrine. The fact that Biloxi Regional issued an employee handbook did not create
for Dubard a right for employment for any definite length of time. Bobbitt v. The Orchard Ltd., 603 So.
2d 356, 361 (Miss. 1992). In addition, an employer may preserve the employment "at will" relationship
thereby retaining its right to discharge an employee at will regardless of the content of any employee
handbook if it does so by including an express, unambiguous and unequivocal disclaimer advising that the
handbook, regardless of its content, does not alter the employer's right to terminate "at will". Bobbitt, 603
So. 2d at 362; see also Hartle v. Packard Electric, 626 So. 2d 106, 109 (Miss. 1993) (handbook
specifically stating that an employee can be terminated "at will" preserves the employment at will status);
Cooper v. Drexel Chemical Co., 949 F. Supp. 1275, 1281 (N.D. Miss. 1996) (affirmed the validity of a
disclaimer preserving the "at will" nature of an employment relationship and granting the employer summary
judgment on breach of contract or wrongful discharge claim). The Biloxi Regional Employee Handbook
expressly states:

      It is the policy of this hospital that all employees who do not have a separate, individual employment
      contract with the Hospital for a specific, fixed term of employment are employed on an "at will" basis
      for an indefinite period. Employees may resign from the Hospital at any time, for any reason, and with
      or without notice.

Accordingly, any reason given by the hospital's administration for the rescission of any offer of employment
made to Dubard is immaterial since, at best, he was an employee at will. However, the fact that he was an
employee at will does not relieve the hospital of responsibility if Dubard is entitled to equitable relief. Biloxi
Regional should thus not be entitled to summary judgment.




II. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT
DUBARD WAS NOT ENTITLED TO EQUITABLE RELIEF?

¶11. Under Mississippi law, a party asserting equitable estoppel must show "(1) belief and reliance on some
representation; (2) change of position as a result thereof; (3) detriment or prejudice caused by the change
of position." Covington County v. Page, 456 So. 2d 739, 741 (Miss. 1984) (citing PMZ Oil Co. v.
Lucroy, 449 So. 2d 201, 206 (Miss. 1984)). If Dubard is able to establish reliance, then estoppel is
available to him.

¶12. If there is a question of fact that Dubard was not aware that completion of his pre-employment
processing was a prerequisite for his employment, then he could be entitled to equitable relief. Though there
is no evidence to show that Biloxi Regional ever represented to him that he would be employed without
completing this screening, there could be evidence to show that Dubard was under the impression that the
physical could be waived prior to employment and performed on the first day of his employment as it was
for his wife Pat. There is no evidence of any specific representation made by Biloxi Regional to Dubard that
he would not be employed or that he would be discharged if he didn't complete the physical prior to
employment. The evidence shows only that Biloxi Regional represented to Dubard that the physical was a
condition precedent to his employment.
¶13. If there were circumstances leading Dubard to believe that the pre-employment screening could be
waived for him as it was for his wife, then Dubard could be entitled to equitable relief.

III. DID THE COURT ERR IN DISMISSING DUBARD'S CLAIM FOR PUNITIVE
DAMAGES?

¶14. It is not necessary to address the issue of punitive damages in light of the other issues that must be
addressed by the trial court on remand.

                                               CONCLUSION

¶15. There are genuine issues of material fact regarding the circumstances under which Biloxi Regional had
waived the physical examination as a condition precedent to employment for other employees and whether
it acted in bad faith in not waiving the condition precedent for Dubard. In such a case, Biloxi Regional
would be found to have breached an oral contract for employment. In the alternative, if Dubard was
considered an employee, at best he was an employee at will and Biloxi Regional had the right to terminate
his employment at will. However, Dubard could be entitled to equitable relief. We therefore reverse and
remand for a determination of the issues of fact presented consistent with this opinion.

¶16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED
AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
ALL COSTS ARE ASSESSED AGAINST THE APPELLEE.




KING, P.J., AND BRIDGES, J., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
McMILLIN, C.J. DIAZ, MOORE, PAYNE, AND THOMAS, JJ., NOT PARTICIPATING.

SOUTHWICK, P.J., DISSENTING:

¶17. This is a significant case of first impression. It raises an issue previously faced in a considerable number
of other jurisdictions, with varying results. The reason for the different outcomes is that these cases create a
clash between what in a particular circumstance may appear to be equitable, but what in the broader
context is completely inconsistent with the doctrine of employment at will. Finding that employment at will is
the governing principle, I dissent.

¶18. The majority first finds an issue of material fact regarding whether the physical examination that Dubard
did not timely complete, was often waived for other employees. I find that to be an immaterial fact. This is a
suit regarding whether the abandonment of an employment agreement prior to commencement of work
creates a cause of action for either party. It seems immaterial to me what were the reasons that the offer
was withdrawn and whether those reasons were inconsistent with the employment of others. There either is
or is not a cause of action to recover expenses or other damages for failure to fulfill an understanding
regarding an offer and acceptance of employment.

¶19. I also find error in the majority's holding that if Dubard can show the existence of facts to support
equitable estoppel, he can recover. This is the significant issue of first impression. Many employment at will
states have faced questions of whether a person to whom an offer of employment has been made, who then
incurs various expenses in preparing to take advantage of that offer, can recover any form of damages. The
point of reference is often the basic elements of promissory estoppel as set forth in the Restatement of
Contracts:

     (1) A promise which the promisor should reasonably expect to induce action or forbearance on the
     part of the promisee or a third person and which does induce such action or forbearance is binding if
     injustice can be avoided only by enforcement of the promise.

Restatement (Second) of Contracts § 90 (1981). The comment to the provision elaborates as follows:

     The promisor is affected only by reliance which he does or should foresee, and enforcement must be
     necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness
     of the promisee's reliance, on its definite and substantial character in relation to the remedy sought, on
     the formality with which the promise is made, on the extent to which the evidentiary, cautionary,
     deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the
     extent to which such other policies as the enforcement of bargains and the prevention of unjust
     enrichment are relevant.

Id. (emphasis added).

¶20. Employment at will is in part justified because of the equality of rights and responsibilities under the
doctrine for employers and employees. The employer does not have to retain, nor does the employee have
to remain any longer than desired absent a written contract with contrary obligations. Does the majority's
new rule mean that if it was Dubard who changed his mind and decided to take a different job, that the
medical center could sue him for costs it incurred in preparing for his arrival, or for operations that were
canceled because he was not present on the agreed starting date, or for any other expenses resulting from
his failure to appear when they had never gotten an enforceable agreement from him requiring his
appearance? Regardless of individual responses to the validity of such an equality of remedies, this
possibility shows the significance of the issue that we face.

¶21. I find that employment at will, for whatever flaws a specific application may cause, is not only the law
of Mississippi but it provides the best balance of the competing interests in the normal employment situation.
It has often been said about democracy, that it does not provide a perfect system of government, but just a
better one than everything else that has ever been suggested. An equivalent view might be seen as the
justification for employment at will.

¶22. A recent review of the conflicting views from other states on this precise question was undertaken by a
Florida intermediate court. Leonardi v. City of Hollywood, 715 So.2d 1007, 1008-1010 (Fla. App.
1998). After the summary was given, the court concluded this:

     Despite this [inconsistent] case law, we need not look any further than § 90 of the Restatement
     (Second) of Contracts to conclude that Leonardi's reliance on City's offer was unreasonable. Had
     City allowed Leonardi to begin working, it could have terminated his employment immediately
     thereafter, before he accrued any wages. Similarly, had he not quit his prior position, his employer
     also could have terminated him at will. In either scenario, we do not believe the doctrine of
     promissory estoppel would allow him to recover his lost wages.
Id. at 1010.

¶23. I also find instructive a view expressed by an intermediate Texas appellate court. The same profound
issue that was proposed by the appellant there is being requested here:

     As an intermediate court, we are duty bound to follow the authoritative pronouncements of the
     supreme court of this state, deferring to that court for common law changes in the application of the
     doctrine of employment at will. See Winograd v. Willis, 789 S.W.2d 307, 312 (Tex.App.--
     Houston [14th Dist.] 1990, writ denied); Hicks v. Baylor University Medical Ctr, 789 S.W.2d
     299, 304 (Tex.App.--Dallas 1990, writ denied). We therefore cannot create a cause of action for
     promissory estoppel when the underlying evidence consists of purely oral representations as to
     employment for an indefinite period.

Robert K. Patterson, P.C. v. Leal, 942 S.W.2d 692, 695 (Tex. App. 1997).

¶24. The Leal court concluded that they "cannot create a cause of action" for promissory estoppel. I would
amend that only to say that we should not. I would affirm.

McMILLIN, C.J., JOINS THIS SEPARATE OPINION.
