           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-01771-COA

CULPEPPER ENTERPRISES INC., KATHY                                         APPELLANTS
CULPEPPER, AND BRANNON WHITE

v.

JOSEPH R. PARKER AND CHERI C. CLANCY                                        APPELLEES

DATE OF JUDGMENT:                          09/14/2016
TRIAL JUDGE:                               HON. EDDIE H. BOWEN
COURT FROM WHICH APPEALED:                 COVINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                   S. WAYNE EASTERLING
ATTORNEYS FOR APPELLEES:                   CORY NATHAN FERRAEZ
                                           SAMUEL STEVEN MCHARD
NATURE OF THE CASE:                        CIVIL - CONTRACT
DISPOSITION:                               REVERSED AND RENDERED IN PART;
                                           REMANDED IN PART - 08/07/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON, WILSON, AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    This appeal arises out of a breach of contract action for unpaid salaries. On June 22,

2016, Joseph R. Parker and Cheri C. Clancy filed a complaint against their former employer,

Culpepper Enterprises Inc. alleging breach of oral contract for unpaid wages;1 negligent and

intentional infliction of emotional distress; and their need for emergency, declaratory and

injunctive relief. The complaint named Culpepper Enterprises’ chief executive officer, Kathy


       1
          In their complaint, Parker and Clancy use “salary” and “unpaid wages”
interchangeably to describe their claims. We note that Parker and Clancy never asserted they
were paid by the hour or worked certain hours per week. Therefore, we refer to their claims
as those for unpaid salaries.
Culpepper, and chief operating officer, Brannon White, as individual defendants.

¶2.    In their first amended complaint filed July 6, 2016, Parker and Clancy alleged that the

Culpepper defendants2 failed to compensate them for numerous pay periods “beginning in

the middle of 2015.” They also added a claim for damages under the Fair Labor Standards

Act (FLSA). The Culpepper defendants filed their answer on July 21, 2016, raising the one-

year statute of limitations found in Mississippi Code Annotated section 15-1-29 (Rev. 2015)3

as an affirmative defense.

¶3.    On August 30, 2016, Parker and Clancy filed a second amended complaint without

the trial court’s leave, seeking unpaid salaries for 2013, 2014, and 2015. They filed a third

amended complaint without leave of court on September 1, 2016, alleging damages for

quantum meruit, breach of implied contract, and unjust enrichment. On September 6, 2016,

the Culpepper defendants filed a motion to strike the second and third amended complaints.

The Culpepper defendants also filed a motion to dismiss any claim for unpaid damages that

accrued before June 22, 2015, based on the one-year statute of limitations. The court struck

the second and third amended complaints, and ruled that Parker and Clancy’s proof would

be limited to damages accruing after June 22, 2015. The court found that due to this ruling,


       2
         Culpepper, Kathy, and White are collectively referred to as “the Culpepper
defendants” unless stated otherwise. We refer to the business entity as “Culpepper
Enterprises” to provide clarification when necessary.
       3
         Section 15-1-29 states in pertinent part that “an action based on an unwritten
contract of employment shall be commenced within one (1) year next after the cause of such
action accrued, and not after.”

                                              2
the Culpepper defendants’ motion to dismiss any claim before June 22, 2015 was moot.

¶4.    Despite the Culpepper defendants’ motion for a continuance, the trial was held

September 6, 2016. Following trial, the jury awarded Parker and Clancy unpaid salaries in

the respective amounts of $48,000 and $40,960, against Culpepper Enterprises, which were

consistent with Parker and Clancy’s exhibits showing the total unpaid salaries. The jury also

awarded Parker and Clancy $25,000 each for emotional distress and mental anguish against

all three defendants.

¶5.    On appeal, the Culpepper defendants argue (1) the trial court erred in denying its

motion for a directed verdict because Parker’s and Clancy’s oral contracts for employment

violate the statute of frauds, and the one-year statute of limitations precludes recovery for

damages prior to June 22, 2015; (2) the trial court erred in denying its motion for a

continuance; (3) the trial court erroneously allowed testimony concerning damages prior to

June 22, 2015; (4) there is insufficient evidence to support an award of damages for

emotional distress; and (5) the evidence failed to create a jury question as to Kathy and

White’s liability.

                        FACTS AND PROCEDURAL HISTORY

¶6.    Culpepper Enterprises was formed in 1988 by William Culpepper (Kathy’s husband

and White’s stepfather). Following William’s death in 2007, Kathy became Culpepper

Enterprises’ chief executive officer. White became Culpepper Enterprises’ chief operating

officer in September 2015, after he stopped working as a private contractor for the federal


                                             3
government and moved to Collins, Mississippi.

¶7.    From 1989 to 2012, Culpepper Enterprises maintained two lines of business. Its

primary line involved fulfilling Mississippi Department of Transportation (MDOT) contracts

to mow grass along interstate right-of-ways. Its secondary line, discontinued in 2012,

involved mowing along pipeline and power lines. The Culpepper defendants contend that

when their sole focus became mowing grass for the MDOT, its business activities became

strictly seasonal. The Culpepper defendants claim that as a result, they informed Parker and

Clancy that during winter months, they would be paid only when additional work became

available.

¶8.    Parker and Clancy quit working for Culpepper Enterprises on June 17, 2016.

                                       Complaints

¶9.    On June 22, 2016, Parker and Clancy filed a complaint in the Jones County Circuit

Court, alleging that “beginning in the middle of 2015,” the Culpepper defendants failed to

compensate them for numerous pay periods pursuant to their oral employment contracts. The

complaint alleged that Parker and Clancy entered into oral contracts with Culpepper

Enterprises, whereby Parker was to receive an annual salary of $52,000 with $200 per diem

each week, and Clancy was to receive an annual salary of $66,560 with $200 per diem each

week. Parker sought $42,000 in unpaid salary, and Clancy sought $53,160. They also sought

damages for emotional distress, attorney’s fees, and a temporary restraining order and

temporary injunction requiring the MDOT to withhold all funds it owed Culpepper


                                             4
Enterprises.

¶10.   On June 29, 2016, the Jones County Circuit Court issued a temporary restraining order

requiring that the MDOT withhold $100,000 in funds owed to Culpepper. The court later

vacated the temporary restraining order and transferred Parker and Clancy’s case to the

Covington County Circuit Court.

¶11.   On July 6, 2016, Parker and Clancy filed an amended complaint for damages and

injunctive relief that additionally alleged FLSA violations. The amended complaint restated

that the Culpepper defendants began failing to pay salaries “in the middle of 2015.” On July

21, 2016, the Culpepper defendants filed their answer, pleading the one-year statute of

limitations and the statute of frauds, and denying that FLSA applied to the case.

¶12.   On August 30, 2016, Parker and Clancy filed a second amended complaint without

leave of court, seeking unpaid salaries for 2013, 2014, and 2015. Parker increased his

demand for unpaid salary to $94,000, and Clancy increased hers to $145,706. On September

6, 2016, Parker and Clancy filed a third amended complaint without leave of court, seeking

damages based on quantum merit, breach of implied contract, and unjust enrichment. In

response, the Culpepper defendants filed a motion to strike Parker and Clancy’s second and

third amended complaints, and a motion dismiss any evidence of unpaid salaries barred by

the one-year statute of limitations.

¶13.   On September 6, 2016, at a motion hearing immediately before trial, the trial judge

struck Parker and Clancy’s second and third amended complaints, and ruled that pursuant to


                                             5
the one-year statute of limitations, Parker and Clancy’s proof would be limited to damages

that accrued after June 22, 2015, one year before they filed the original complaint. The court

overruled as moot the Culpepper defendants’ motion to dismiss based on the one-year statute

of limitations.

                                 Motion for Continuance

¶14.   Eight days before trial, on August 29, 2016, Kathy filed a motion for a continuance

asserting that she was medically unable to participate in the trial due to a stroke. Her motion

was accompanied by an unsworn certificate from a Merit Health medical director, stating that

Kathy was admitted to Merit’s Senior Care Unit on August 12, 2016, and was discharged on

August 21, 2016, with recommended outpatient mental-health services. The medical director

recommended that Kathy be given at least ninety days to “more fully recuperate from her

recent hospitalization.” Kathy’s motion also requested a continuance on the grounds that

Parker and Clancy had not responded to outstanding discovery, and had yet to be deposed

because they cancelled their depositions.

¶15.   On the morning of trial, September 6, 2016, the trial judge heard arguments on the

motion for a continuance. Although the Culpepper defendants’ written motion contended that

there was outstanding discovery, the Culpepper defendants did not address this issue during

the hearing. The trial court denied the motion for continuance, noting that the medical

director’s recommendation did not explain why Kathy was hospitalized, provide a diagnosis

or prognosis for Kathy’s condition, or state whether Kathy’s ability to testify had been


                                              6
affected.

                                           Trial

¶16.   During trial, White testified that when Culpepper Enterprises discontinued its

secondary line of business in 2012 and chose to focus on mowing grass for the MDOT, its

business activities became strictly seasonal. White claimed that, as a result, Parker and

Clancy were informed that during winter months they would be paid only when additional

work became available. He stated that during cold-weather months, Parker and Clancy were

accordingly paid when authorized to do additional work, such as servicing tractors.

¶17.   Kathy testified as an adverse witness that she performed Culpepper Enterprises’

payroll duties during 2014 and 2015, and that she timely paid all of their salaries. Kathy

further stated that she properly submitted all of Parker and Clancy’s withheld taxes, Social

Security, and Medicare. She denied entering into oral employment contracts with Parker and

Clancy for annual salaries.

¶18.   Clancy testified that in 2008, she orally agreed with Culpepper Enterprises to receive

an annual salary of $66,560, with either a one- or two-week pay period. She stated that she

and Parker were never told that their pay would be altered in any way. Clancy testified that

she worked year-round, including winter months. Clancy testified that sometime in 2015,

Culpepper Enterprises failed to pay her and Parker for salaries they were owed, and that

Kathy responded she would “take care of it.” Clancy said at a later date during that

year—sometime during late November or early December—she and Parker sat down with


                                             7
Kathy and asked for the salaries they had yet to receive. Clancy stated that she agreed to wait

until January to be paid. She testified that for pay periods when she actually received checks,

the checks did not list the correct pay-period dates. Instead, Kathy would hand her a check,

and say, “I’m going to give you two checks for the next three or four weeks.” Clancy further

testified that upon going to the Social Security Administration office, she learned that no

funds had been paid into her social security account during 2014 and 2015.

¶19.   Parker testified that he started working at Culpepper Enterprises in the spring of 1991.

He stated that in 2009, he and Culpepper Enterprises orally agreed that he would receive an

annual salary of $51,000 and would be paid every two weeks. Parker asserted that his 2009

agreement with Culpepper Enterprises had never changed. He said that despite several

conversations with Kathy and White, Culpepper Enterprises failed to pay him his agreed

upon salary during 2014 and 2015.

¶20.   Nell Hopkins testified that she worked as Culpepper Enterprises’ bookkeeper and

payroll clerk from September 2007 to December 2013. Hopkins said that she personally

witnessed Parker and Clancy work year-round, even during winter months, and that she was

never instructed to alter Parker’s or Clancy’s pay in any way. She testified that while working

for Culpepper Enterprises, she observed Kathy ask Parker and Clancy not to cash their

paychecks until Culpepper Enterprises had enough funds to cover the checks. Hopkins stated

that on occasion, Kathy held Parker’s and Clancy’s paychecks until she chose to sign them.

Hopkins further testified that although Culpepper Enterprises withheld taxes and Medicare


                                              8
from Parker’s and Clancy’s paychecks, Kathy instructed her not to submit the withholdings

to the government. Additionally, Hopkins testified that Culpepper Enterprises continued to

withhold life-insurance payments from Parker’s and Clancy’s checks after their insurance

was cancelled in 2012. Hopkins said Kathy received life-insurance reimbursement checks

but never gave them to Parker or Clancy.

¶21.   Lisa Boykin, an accountant, testified as an expert for Parker and Clancy. She stated

that prior to trial, she reviewed Parker’s and Clancy’s 2010–2015 W-2 statements, paycheck

stubs, personal bank statements, 2015–2016 pay summaries, and July 2016 Social Security

Administration Statements. She further stated that the documents she reviewed included:

2010–2016 banks statements relating to Parker’s and Clancy’s payrolls, 2010–2016 debit

transactions of paychecks cleared for payment to Parker and Clancy, employee paycheck

stubs, and operating expenses for transactions dated 2015–2016. In exhibits admitted into

evidence as P15 and P16, Boykin opined that Parker’s 2014–2016 gross missing payroll

amounted to $48,000, and Clancy’s equaled $40,960. Boykin’s opinions as to Parker’s gross-

missing payroll, admitted as Parker and Clancy’s exhibit P15, are as follows:

       2014
       1/25/14 to 2/07/14          $   2,000
       2/08/14 to 2/14/14          $   2,000
       7/19/14 to 8/01/14          $   2,000
       2014 TOTAL OWED             $   6,000

       2015
       1/10/15 to 1/23/15          $   2,000
       1/24/15 to 2/06/15          $   2,000
       2/07/15 to 2/20/15          $   2,000

                                               9
      2/21/15 to 2/20/15          $   2,000
      3/07/15 to 3/20/15          $   2,000
      3/21/15 to 4/03/15          $   2,000
      4/04/15 to 4/17/15          $   2,000
      7/25/15 to 8/07/15          $   2,000
      8/08/15 to 8/21/15          $   2,000
      8/22/15 to 9/04/15          $   2,000
      9/05/15 to 9/18/15          $   2,000
      9/19/15 to 10/02/15         $   2,000
      10/03/15 to 10/16/15        $   2,000
      10/17/15 to 10/30/15        $   2,000
      2015 TOTAL OWED             $   28,000

      2016
      2/06/16 to 2/19/16          $ 2,000
      2/20/16 to 3/04/16          $ 2,000
      3/05/16 to 3/18/16          $ 2,000
      3/19/16 to 4/01/16          $ 2,000
      4/02/16 to 4/08/16          $ 2,000
      6/04/16 to 6/17/16          $ 2,000
      6/18/16 to 6/24/16          $ 2,000
      2016 TOTAL OWED             $ 14,000

      PARKER PAYROLL
      2014 TOTAL OWED             $   6,000
      2015 TOTAL OWED             $   28,000
      2016 TOTAL OWED             $   14,000
      OWED TO PARKER              $   48,000

Boykin’s opinions for Clancy’s unpaid salary were admitted as plaintiffs’ exhibit P16 and

showed the following:

      2014
      1/25/14 to 2/07/14          $   2,560
      2/08/14 to 2/14/14          $   2,560
      7/19/14 to 8/01/14          $   2,560
      2014 TOTAL OWED             $   7,680




                                              10
       2015
       12/27/15 to 1/09/15        $   2,560
       1/10/15 to 01/23/15        $   2,560
       1/24/15 to 02/06/15        $   2,560
       2/07/15 to 02/20/15        $   2,560
       2/21/15 to 03/06/15        $   2,560
       3/07/15 to 03/20/15        $   2,560
       2015 TOTAL OWED            $   15,360

       2016
       3/19/16 to 4/01/16         $   2,560
       4/02/16 to 4/15/16         $   2,560
       4/16/16 to 4/29/16         $   2,560
       4/30/16 to 5/13/16         $   2,560
       5/14/16 to 5/27/16         $   2,560
       5/28/16 to 6/10/16         $   2,560
       6/11/16 to 6/24/16         $   2,560
       2016 TOTAL OWED            $   17,920

       Total Payroll Owed         $ 40,960

¶22.   The Culpepper defendants objected to Boykin’s testimony and exhibits as contrary to

the court’s pretrial ruling that Parker and Clancy’s evidence would be limited to damages

accruing after June 22, 2015. In addition, the Culpepper defendants objected on the ground

that the one-year statute of limitations barred damages accruing before then. The court

overruled the Culpepper defendants’ objections and ruled that the jury would decide which

damages to award.

¶23.   Following trial, the jury awarded Parker and Clancy $48,000 and $40,960,

respectively, in unpaid salaries against Culpepper Enterprises, and $25,000 each for

emotional distress against all three defendants. The Culpepper defendants timely appeal,

arguing the trial court erred by: denying their motion for directed verdict; denying their

                                           11
motion for a continuance; admitting testimony concerning damages that occurred prior to

June 22, 2016; awarding Parker and Clancy damages for emotional distress; and denying

their motion for a directed verdict in favor of Kathy and White.

                                       DISCUSSION

       I.     Denial of Culpepper’s Motion for a Directed Verdict

¶24.   The Culpepper defendants argue the trial court erred by failing to grant their motion

for a directed verdict because Parker’s and Clancy’s oral contracts do not survive the statute

of frauds as verbal agreements intended to be carried out over a period of time in excess of

fifteen months. The Culpepper defendants also argue, as they asserted throughout the

proceedings and trial, that the one-year statute of limitations found in section 15-1-29 bars

recovery for any breach prior to June 22, 2015.

¶25.   “Motions for directed verdict and judgments notwithstanding the verdict challenge the

legal sufficiency of the evidence.” Estate of Gibson ex. Rel. Gibson v. Magnolia Healthcare

Inc., 91 So. 3d 616, 622 (¶11) (Miss. 2012). On appeal, we review the sufficiency of the

evidence on the last occasion it was challenged in the trial court. Dampeer v. State, 989 So.

2d 462, 463 (¶6) (Miss. Ct. App. 2008). Therefore, because the Culpepper defendants moved

for a judgment notwithstanding the verdict (JNOV) following the jury’s verdict, we will

assume that they are challenging the denial of their JNOV.

¶26.   We review a trial court’s denial of a JNOV de novo. Mine Safety Appliance Co. v.

Holmes, 171 So. 3d 442, 446 (¶8) (Miss. 2015). Likewise, we review statutes of limitation


                                             12
de novo. Am. Optical Corp. v. Estate of Rankin, 227 So. 3d 1062, 1067 (¶19) (Miss. 2017).

In reviewing the denial of a JNOV,

       This Court will consider the evidence in the light most favorable to the
       appellee, giving that party the benefit of all favorable inference[s] 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.

Blake v. Clein, 903 So. 2d 710, 731 (¶61) (Miss. 2005).

              A.     Statute of Frauds

¶27.   Mississippi’s statute of frauds provides that oral contracts “not to be performed”

within fifteen months are unenforceable. Miss. Code Ann. § 15-3-1(d) (Rev. 2012). “The

phrase ‘not to be performed’ contains negative words, and, accordingly, to bring a particular

contract within the statute, there must be a negation of the right to perform [the contract]

within fifteen months.” U.S. Fin. Co. v. Barber, 247 Miss. 800, 810, 157 So. 2d 394, 397

(1963). Generally, employment contracts of indefinite duration do not fall within the statute

of frauds, since either party may terminate the contract at any time. Id. at 810, 157 So. 2d at

397. Thus, “[t]he possibility of performance within . . . fifteen months takes the contract out

of the operation of the statute.” Id. at 810, 157 So. 2d at 397. Here, Parker’s and Clancy’s

contracts were for indefinite periods, and were terminable at any time upon giving reasonable

notice. Thus, Parker’s and Clancy’s contracts do not fall within the statute of frauds.


                                              13
               B.     Statute of Limitations

¶28.     Section 15-1-29 provides in pertinent part: “[A]n action based on an unwritten

contract of employment shall be commenced within one (1) year next after the cause of such

action accrued, and not after.” In a breach of contract claim, the cause of action accrues at

the time of the breach. Young v. S. Farm Bureau Life Ins. Co., 592 So. 2d 103, 107 (Miss.

1991).

¶29.     In this case, Parker and Clancy contend that the Culpepper defendants failed to pay

their salaries for pay periods in 2014, 2015, and 2016. However, because Parker’s and

Clancy’s claims are based on unwritten employment contracts, the one-year statute of

limitations limits recovery to breaches occurring after one year before the filing of the

lawsuit. Parker and Clancy filed their complaint on June 22, 2016; therefore, their recovery

must be limited to breaches occurring after June 22, 2015. We concur with precedent that the

statute of limitations applies to bar recovery for unpaid salaries before June 22, 2015.

However, Parker and Clancy argue that the one-year statute of limitations was tolled by: (1)

fraudulent concealment; (2) willful violation of the FLSA; (3) equitable estoppel; and (4) the

Culpepper defendants’ promises to pay.

¶30.     We note that Parker and Clancy did not file a cross-appeal. Generally, we will not

consider “points of error” raised by an appellee who fails to cross-appeal. Bd. of Trs. v. Knox,

688 So. 2d 778, 782 n.1 (Miss. 1997); Brock v. Hankins Lumber Co., 786 So. 2d 1064, 1068

(¶18) (Miss. Ct. App. 2000). However, this Court has previously held that “an appellee


                                               14
should not be required to file a cross-appeal unless he or she is aggrieved by the trial court’s

judgment.” Dunn v. Dunn, 853 So. 2d 1150, 1152 (¶8) (Miss. 2003). The trial court’s

judgment awarded Parker and Clancy damages beyond the one-year recovery period allowed

by the statute of limitations; thus, there was no reason for Parker and Clancy to challenge this

decision. Presley v. Senatobia, 997 So. 2d 235, 238 (¶8) (Miss. Ct. App. 2008) (“[C]ross

appeal is neither required nor expedient where its only purpose is to urge alternative grounds

for affirmance.”). Therefore, we examine Parker and Clancy’s position that the statute of

limitations does not apply. Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d 455, 461

(¶21) (Miss. 2012) (determining appellee was not required to cross-appeal in order to claim

appellants waived a statute of limitations defense).

                       1.      Fraudulent Concealment

¶31.   Parker and Clancy claim the Culpepper defendants fraudulently concealed

nonpayment of their salaries. We note that they did not argue fraudulent concealment at trial.4

Mississippi Code Annotated section 15-1-67 (Rev. 2012) provides that:

       If a person liable to any personal action shall fraudulently conceal the cause of
       action from the knowledge of the person entitled thereto, the cause of action
       shall be deemed to have first accrued at, and not before, the time at which such
       fraud shall be, or with reasonable diligence might have been, first known or
       discovered.

To establish fraudulent concealment, there must be “some act or conduct of an affirmative

nature designed to prevent and which does prevent discovery of the claim.” Trustmark Nat’l


       4
           At trial, Parker and Clancy argued concealment in the context of equitable estoppel.

                                               15
Bank v. Meador, 81 So. 3d 1112, 1119 (¶17) (Miss. 2012). A plaintiff is required to “show

that (1) some affirmative act of conduct was done and prevented discovery of the claim; and

(2) due diligence was performed on its part to discover the claim.” Id. (citing Sanderson

Farms Inc. v. Ballard, 917 So. 2d 783, 790 (¶33) (Miss. 2005)). In addition, the Mississippi

Supreme Court has held that fraudulent concealment “must be pled with specificity and

particularity under [Mississippi Rule of Civil Procedure] 9(b).” State Indus. Inc. v. Hodges,

919 So. 2d 943, 946 (¶6) (Miss. 2006). Parker and Clancy did not show they were unaware

that they had not been paid. Nor did they plead fraudulent concealment with specificity and

particularity. Their claim of fraudulent concealment to toll the statute of limitations is

without merit.

                      2.     FLSA

¶32.   Parker and Clancy argue the FLSA preempts the one-year statute of limitations. In

doing so, they attempt to use the FLSA to toll the statute of limitations, although they did not

prove the FLSA’s applicability at trial.5 The time for filing a claim under the FLSA is within

two years after the cause of action accrued, or for willful violations, within three years after

the cause of action accrued. 29 U.S.C. § 255(a) (2012). “The determination of whether an

employee falls within the scope of a FLSA exemption is ultimately a legal question.” Atkins

v. Old River Supply Inc., 150 So. 3d 976, 979 (¶8) (Miss. Ct. App. 2012) (quoting Walton v.



       5
        The trial court ruled that Parker’s and Clancy’s FLSA claims did not apply, and
their FLSA claims were not submitted to the jury.

                                              16
Greenbrier Ford Inc., 370 F.3d 446, 450 (4th Cir. 2004)).

¶33.   The FLSA provides for a private cause of action against an employer who violates the

act’s minimum-wage and overtime provisions. See 29 U.S.C. § 216(b) (2012) (“Any

employer who violates the provisions of section 206 [minimum wage provision] or section

207 [overtime pay provision] of this title shall be liable to the employee or employees

affected in the amount of their unpaid minimum wages, or their unpaid overtime

compensation . . . .”) (emphasis added). Here, Parker and Clancy do not argue about unpaid

minimum wages or unpaid overtime compensation; rather, they assert they were not paid the

full amount of their annual salaries. We therefore find Parker’s and Clancy’s claims do not

fall under the FLSA’s coverage. Timm v. Advanced Eng’g Sols Inc., 2014 WL 12649850, No.

A-12-CV-227, at *7 (W.D. Tex. March 3, 2014) (“[T]he FLSA does not provide a cause of

action for unpaid wages, but rather only for failure to pay an employee overtime pay or the

legal minimum wage . . . .”); Pioch v. IBEX Eng’g Servs. Inc., 825 F.3d 1264, 1271 (11th Cir.

2016) (“The FLSA . . . is not a vehicle for litigating breach of contract disputes between

employers and employees.”); Coffen v. Washington Convention & Sports Auth., 271 F. Supp.

3d 211, 214 (D.D.C. 2017) (collecting cases). Accordingly, the FLSA statute of limitations

does not apply.

                     3.     Equitable Estoppel

¶34.   Parker and Clancy argue that the Culpepper defendants are equitably estopped from

arguing the statute of limitations applies, asserting that over the course of 2014, 2015, and


                                             17
2016, the Culpepper defendants fraudulently concealed withheld salaries and other monies

owed.6

¶35.     For equitable estoppel to toll the statute of limitations,

         the plaintiff must show by a preponderance of the evidence that (1) it was
         induced by the conduct of the defendant not to file its complaint sooner, (2)
         resulting in its claim being barred by the applicable limitations, and (3) the
         defendant knew or had reason to know that such consequences would follow.

Townes v. Rusty Ellis Builder Inc., 98 So. 3d 1046, 1055 (¶26) (Miss. 2012). “Inequitable or

fraudulent conduct must be established to apply the doctrine of equitable estoppel to a statute

of limitations.” Ray v. Keith, 859 So. 2d 995, 997 (¶8) (Miss. 2003). “Equitable estoppel is

an extraordinary remedy that should be used with caution.” Simmons Housing Inc. v. Shelton,

36 So. 3d 1283, 1287 (¶15) (Miss. 2010).

¶36.     As discussed already, Parker and Clancy failed to show that the Culpepper defendants

concealed nonpayment of their salaries. Further, Parker and Clancy presented no evidence

that the Culpepper defendants induced them not to pursue a cause of action. We find that

equitable estoppel does not toll the one-year statute of limitations.

                       4.      Promises to Pay

¶37.     Parker and Clancy contend that the limitations period was tolled because in 2015

Kathy and White made several specific promises to pay any salaries withheld from them

during that year.


         6
        We note the trial court rejected Parker and Clancy’s jury instruction on equitable
estoppel.

                                                 18
¶38.   During trial, Clancy testified that she and Parker approached Kathy on several

occasions in 2015 to ask about being paid for contracts they completed. Clancy said Kathy

would say, “I’m going to do it if you will just give me a little more time” or “I’ll take care

of it.” Clancy could not recall when Kathy made these promises. Clancy testified that during

August or September 2015, she and White discussed her and Parker’s unpaid salaries, and

White told her he would see that Kathy paid them. Clancy testified that in November or

December 2015, she requested payment from Kathy, and Kathy asked if she could wait until

January 2016 to be paid. Clancy responded that she could wait.

¶39.   The Mississippi Supreme Court “has uniformly held that, in order to remove the bar

of the statute, the acknowledgment of the debt and the promise to pay must be definite and

unequivocal.” U.S. Fid. & Guar. Co. v. Krebs, 190 So. 2d 857, 861 (Miss. 1966) (quoting

Philp v. Hicks, 112 Miss. 581, 589, 73 So. 610, 612 (1916)). Per Mississippi Code Annotated

section 15-1-73 (Rev. 2012), the acknowledgment or promise must be in a writing signed by

the party to be charged. Further, the acknowledgment or promise must identify the debt and

acknowledge or promise to pay a definite amount. Taylor v. Desoto Lumber Co., 147 Miss.

829, 102 So. 260, 261 (1924). However, “the debt itself need not be identified if it is

evidenced by a written instrument from which the remaining amount to be paid can be

ascertained by calculation.” U.S. Fid. & Guar. Co., 190 So. 2d at 861.

¶40.   Parker and Clancy contend that the salaries Culpepper Enterprises owes them can be

calculated by a written instrument. However, pursuant to section 15-1-73, a promise to pay


                                             19
will only toll the statute of limitations if it is in writing. See Harrison Enters. Inc. v. Trilogy

Commc’ns Inc., 818 So. 2d 1088, 1092-96 (¶¶12-29) (Miss. 2002). Kathy’s and White’s

promises were not in writing. Nor were they definite and unequivocal. Kathy and White

never promised to pay a definite amount and did not specify the pay periods for which they

were promising to pay. We therefore find that Kathy’s and White’s promises do not toll the

statute of limitations.

               C.     Limitation on the Jury Verdict

¶41.   The jury awarded Parker and Clancy unpaid gross salaries in the respective amounts

of $48,000 and $40,960, virtually adopting Parker’s and Clancy’s total missing payroll

amounts for 2014–2016, found in exhibits P15 and P16. The exhibits provided for gross

salaries without a deduction for any withholdings such as for taxes or insurance. Because we

find that the one-year statute of limitations applies to this case, we find the jury’s award of

damages accruing prior to June 22, 2015 to be error. In applying the one-year statute of

limitations to the figures adopted by the jury from P15 and P16, it is apparent that Culpepper

Enterprises owed Parker $28,000 and Clancy $17,920 for unpaid salaries that accrued after

June 22, 2015. Accordingly, we affirm the jury’s verdict to the extent that it awarded Parker

and Clancy unpaid gross salaries for breaches occurring after June 22, 2015, and reverse and

render the remaining amount of the jury’s award for unpaid salaries.

       II.     Denial of Culpepper’s Motion for a Continuance

¶42.   Prior to trial, the Culpepper defendants requested a continuance, asserting that (1)


                                                20
Kathy was medically unable to participate in trial as scheduled because she was recuperating

from a stroke, and (2) Parker and Clancy had yet to respond to outstanding discovery. The

motion was supported by a sworn affidavit from the Culpepper defendants’ attorney and an

unsworn certificate from a Merit Health medical director, recommending that trial be

extended at least ninety days to allow Kathy “to more fully recuperate from her recent

hospitalization.” The medical director stated that Kathy was hospitalized from August 12 to

21, 2016. She was discharged with recommended outpatient mental-health services.

¶43.   During a hearing on the motion, the trial court noted that the medical director’s

recommendation did not explain why Kathy was hospitalized and neither provided a

diagnosis or prognosis for Kathy’s condition. Additionally, the trial court noted that the

medical director failed to state whether Kathy’s ability to testify was affected. The trial court

denied the continuance and proceeded immediately with trial. We note that the Culpepper

defendants did not mention any outstanding discovery issues during the hearing.

¶44.   “It is well settled that the decision to grant or deny a motion for a continuance is

within the sound discretion of the trial court and will not be reversed unless the decision

results in manifest injustice.” In re E.G., 191 So. 3d 763, 772 (¶37) (Miss. Ct. App. 2016)

(internal quotation mark omitted). “[T]here is no mechanical test for determining whether

a continuance should be granted, and the circumstances of each case must be carefully

examined, especially the reasons presented to the trial judge at the time the request is

denied.” Harveston v. State, 742 So. 2d 1163, 1169 (¶21) (Miss. Ct. App. 1999).


                                               21
¶45.   Looking to the denial of the motion for continuance, we cannot find an abuse of

discretion. The Culpepper defendants offered no proof that Kathy was unable to testify or

that her ability to testify was impaired. We note that Kathy testified during trial as an adverse

witness for Parker and Clancy, but that she did not testify in her own case-in-chief. The

Culpepper defendants contend that after testifying as an adverse witness, Kathy was unable

to testify again because she was too weak. Yet the Culpepper defendants did not move to

continue the trial asserting that Kathy could not be called in their case-in-chief because she

was too weak too testify, and did not offer any evidence of Kathy’s inability to testify on its

motion for a new trial. Under these circumstances, we find no manifest injustice occurred.

We cannot find that the trial court abused its discretion in refusing to grant the continuance.

       III.   Admission of Testimony Concerning Damages

¶46.   In this assignment of error, the Culpepper defendants contend the trial court

erroneously allowed Boykin to testify about damages that occurred before June 22, 2015. The

Culpepper defendants point out that Parker and Clancy did not allege damages prior to mid-

2015 in their complaint or amended complaint. The Culpepper defendants also note that they

were denied the opportunity to cross-examine Parker and Clancy on salaries withheld prior

to June 2015. Citing Lee v. Stewart, 724 So. 2d 1093 (Miss. Ct. App. 1998), the Culpepper

defendants argue the trial court erroneously allowed expert testimony pertaining to issues not

contained in the pleadings.

¶47.   “The standard of review regarding the admission or exclusion of evidence is abuse of


                                               22
discretion.” Benchmark Health Care Ctr. Inc. v. Cain, 912 So. 2d 175, 179 (¶7) (Miss. Ct.

App. 2005). This court will not reverse the trial court’s decision regarding the admission or

exclusion of evidence unless the error adversely affects a substantial right of a party. Id.

(citing Harrison v. McMillan, 828 So. 2d 756, 765 (¶27) (Miss. 2002)).

¶48.   The Culpepper defendants correctly argue that evidence pertaining to issues not

contained in the pleadings generally may not be presented at trial. “Where a party offers

proof on an issue not pleaded . . . her opponent upon timely and proper objection may of right

demand that the evidence be excluded.” Queen v. Queen, 551 So. 2d 197, 200 (Miss. 1989).

The Culpepper defendants timely objected to the testimony and therefore had a right to have

Boykin’s testimony on damages prior to mid-2015 excluded. However, this issue is moot due

to our earlier discussion and ruling that the one-year statute of limitations applies. We

therefore decline to review it further.

       IV.    Emotional Distress

¶49.   The Culpepper defendants also assert there was insufficient proof to support an

instruction or award of damages for emotional distress.

¶50.   When a claim for emotional distress is based on a contract, “a plaintiff must show that

(1) the emotional distress was a foreseeable consequence of the particular breach-of-contract

and (2) that he or she actually suffered emotional distress; plaintiffs need not prove any

physical manifestation.” Swartzfager v. Saul, 213 So. 3d 55, 67 (¶38) (Miss. 2017).

“However, the plaintiff must show specific suffering during a specific time frame;


                                             23
generalizations are not sufficient.” Id.

¶51.   In this case, Parker and Clancy failed to present sufficient proof of injury to present

a jury issue. The only evidence presented by Parker supporting his claim for emotional

distress was the following on direct examination:

       Q      And, Mr. Parker, would you please tell the jury and the Court how you
              have been affected by Culpepper’s failure to pay your wages and
              reimbursements?

       A      Well, I’m getting buried by bills right now from the doctors. You know,
              it’s a load. I don’t know, this cancer business I got, it’s just constant
              bills. It’s not cheap to stay alive, you know. This cancer is killing me,
              literally, you know.

       Q      And . . . in 2014 and [2015] and now [2016] . . . that they failed to pay
              you, how has that affected you during that time period?

       A      A lot.

¶52.   Clancy’s proof for her claim of emotional distress included her testimony that

Culpepper’s failure to pay was “very confusing,” and as a result, she experienced “a roller

coaster of emotions.” Clancy stated that she went “through bouts of depression,” and had

been “emotional with her family.” She also testified that her claim for emotional distress

stemmed from the stress and emotional toll she experienced.

¶53.   In Strickland v. Rossini, 589 So. 2d 1268, 1275-76 (Miss. 1991), the Mississippi

Supreme Court held that evidence a plaintiff was “very depressed . . . [and] very upset over

all this and emotional . . . [and] not able to sleep,” was insufficient to recover damages for

emotional distress. Similarly, the supreme court found insufficient proof of injury to support


                                             24
a claim of emotional distress in Morrison v. Means, 680 So. 2d 803 (Miss. 1996), where a

plaintiff testified that the defendant’s conduct “affected [him] emotionally in that [he] [was]

not . . . able to sleep many nights because [he] felt like [he] [had] been done wrong . . . [and]

cheated out of money that [he] need[ed] to help support [his] family.” Id. at 807.

¶54.   Under our prevailing case law, we find that Parker’s and Clancy’s testimonies were

insufficient to support an instruction or award of damages for emotional distress. We

therefore reverse and render the jury’s award of damages for emotional distress.

       V.      Denial of Culpepper’s Motion for Directed Verdict as to Kathy and White

¶55.   In their motion for a directed verdict, the Culpepper defendants contended that

because Kathy and White were acting as agents for Culpepper Enterprises, the evidence

failed to create a jury issue as to their individual liability for breach of contract.

¶56.   “It is a longstanding [tenet] of agency law that an agent who discloses its principal

cannot be held liable for the contract entered into with the principal.” Chevis v. Miss. Farm

Bureau Mut. Ins. Co., 76 So. 3d 187, 195 (¶28) (Miss. Ct. App. 2011); Fireman’s Fund Ins.

Co. v. Chartis Ins. Agency Inc., 2013 WL 1305602, No. 3:12-CV-657, at *2 (S.D. Miss.

2013); Hughes v. United Auto. Ins. Co., 2010 WL 2670858, No. 5:09-CV-168, at *3 (S.D.

Miss. 2010). Although an agent enters into a contract on behalf of the principal, the agent

does not become a party to the contract and is not responsible for its breach. Johnson v.

Rimes, 890 F. Supp. 2d 743, 745 (S.D. Miss. 2012).

¶57.   The evidence shows that Parker’s and Clancy’s contracts were with Culpepper


                                               25
Enterprises. Therefore, considering the evidence in the light most favorable to Parker and

Clancy, reasonable jurors could not have arrived at a verdict that resulted in individual

liability on the part of Kathy or White. We note that the jury’s verdict on breach of contract

was against only Culpepper Enterprises, but the trial court’s judgment awarded joint and

several damages against Culpepper Enterprises, Kathy, and White.7 The trial court erred in

denying the Culpepper defendants’ motion for JNOV regarding Kathy and White’s individual

liability because they were only agents of Culpepper Enterprises. Further, the trial court

should not have rendered a judgment against all three defendants when the jury’s verdict on

breach of contract was only against Culpepper Enterprises. Consequently, Kathy and White

bear no responsibility for any portion of the judgment and should be dismissed with prejudice

from this suit. See Estate of Gibson, 91 So. 3d at 624 (¶49).

                                      CONCLUSION

¶58.   In summary, we find the trial court erred when it denied the Culpepper defendants’

motion for a directed verdict and JNOV because the jury verdict contained damages for

unpaid salaries outside the one-year statute of limitations. We find no manifest injustice

resulted from the trial court’s denial of the Culpepper defendants’ motion for a continuance.

We reverse and render any damages awarded for emotional distress, and reverse and render

the judgment of the circuit court awarding any damages against Kathy and White


       7
        The trial court’s judgment awarded a “verdict in favor of the Plaintiffs against the
Defendants Culpepper Enterprises, Inc., Kathy Culpepper, and Brannon White jointly and
severally in the amount of $138,960.”

                                             26
individually. We reverse and remand for the circuit court to enter a judgment for Parker and

Clancy against only Culpepper Enterprises, in the amount of $28,000 for Parker and $17,920

for Clancy.

¶59.   REVERSED AND RENDERED IN PART; REMANDED IN PART.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR AND
WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., CONCURS
IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED
BY WESTBROOKS, J.

       TINDELL, J., CONCURRING IN PART AND IN RESULT:

¶60.   While I concur in result with the majority’s opinion, I feel compelled to write

separately regarding the trial court’s denial of Culpepper’s motion for a continuance. Less

than ninety days after Parker and Clancy filed their complaint, the trial court held a trial.

During this time period, Parker and Clancy filed two additional amended complaints, the trial

court transferred venue, and the parties apparently failed to complete discovery.

Furthermore, less than a month before the trial, Kathy suffered a stroke and was hospitalized

for nine days. Had this Court not been able to render what I believe to be the correct

conclusion, it is my opinion this case would have been ripe for reversal based solely upon the

denial of Culpepper’s motion for a continuance. I seek not to discourage trial courts from

managing their own dockets, particularly when it comes to pushing matters to trial. After all,

justice delayed is all too often justice denied. However, unless an apparent reason exists for

fast-tracking a case, I would caution trial courts to at least allow the discovery period set


                                             27
forth in Rule 4.03(A) of the Uniform Civil Rules of Circuit and County Court to be

completed before proceeding to trial.

      WESTBROOKS, J., JOINS THIS OPINION.




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