                       IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2002-CA-01942-SCT

THE PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM

v.

JOHN P. FREEMAN

DATE OF JUDGMENT:                               7/29/2002
TRIAL JUDGE:                                    HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                      HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         MARY MARGARET BOWERS
ATTORNEY FOR APPELLEE:                          GEORGE S. LUTER
NATURE OF THE CASE:                             CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                    REVERSED AND RENDERED - 03/18/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, P.J., COBB AND CARLSON, JJ.

       SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This Court in Freeman v. Pub. Employees’ Ret. Sys. of Miss., 822 So. 2d 274 (Miss. 2002)

(Freeman I), concluded that the decision of the Public Employees’ Retirement System (PERS) to

terminate John P. Freeman’s disability benefits was not supported by substantial evidence. Id. at 279.

Thus, we held:

       [T]he judgments of the circuit court and PERS are reversed, and this case is remanded to
       the circuit court with instructions to remand to PERS for reinstatement of Freeman's
       disability status and his benefits, with back pay from the date of the termination of those
       benefits. In accordance with Section 25-11-113(3) and this opinion, PERS, at its option,
       may conduct a new, fair and impartial hearing evaluating Freeman's disability after he has
       been thoroughly examined by appropriate medical personnel.
This Court’s mandate to the circuit court provided: “You are commanded, that execution and further

proceedings as may be appropriate be forthwith be had consistent with this judgment and the Constitution

and Law of the State of Mississippi.”

¶2.     Upon remand, on July 25, 2002, the circuit court ordered PERS to reinstate Freeman’s disability

status and benefits with back pay. However, the next day, Freeman’s attorney submitted a proposed

amended order that provided for the award of interest on the unpaid benefits. According to PERS, it did

not “become aware” of this order until over a month after it was entered.1 However, the record indicates

that PERS had at least some knowledge of Freeman’s proposed amendment to the order. PERS submitted

a letter opposing the amended order on July 26, 2002, the same day Freeman’s attorney sent the proposed

amendment. Despite PERS’ objections, the circuit court remanded the case and ordered reinstatement

of Freeman’s disability status and benefits with back pay. In addition, the circuit court ordered PERS to

pay “legal interest at the rate of 8% to be calculated from the date of the first reinstated monthly benefit

which is August 1, 1998.” PERS appeals and raises the following issues:

        I.      WHETHER THE CIRCUIT COURT ERRED IN DENYING THE
                PUBLIC EMPLOYEES’ RETIREMENT SYSTEM’S MOTION FOR
                RECONSIDERATION.

        II.     WHETHER THE CIRCUIT COURT ERRED IN ENTERING ITS
                AMENDED REMAND ORDER SINCE IT WENT BEYOND THE
                SCOPE OF THIS COURT’S MANDATE AND AWARDED
                INTEREST WHERE NO STATUTORY AUTHORITY PERMITS
                THE IMPOSITION OF INTEREST IN APPEALS SUCH AS THAT
                BEFORE THE COURT.

                                             DISCUSSION




        1
         Freeman correctly points out that under URCCC 11.05 it is the responsibility of the circuit
clerk - not the circuit court - to mail counsel of record notice when an order has been entered.

                                                     2
¶3.     Because the two issues PERS raises are intertwined, they will treated together herein. PERS does

not specifically address Issue I in its brief, but the thrust of its argument is that the circuit court erred in

denying the motion for reconsideration because the court was without power to order the payment of

interest. PERS asserts that the circuit court lacked this power because there is no provision under

Mississippi law that empowers a court to grant interest in a case such as this. In response, Freeman

contends that the circuit court could lawfully grant interest because Freeman and PERS are, in effect,

involved in a contractual relationship. Thus, pursuant to Miss. Code Ann. § 75-17-7 (Rev. 2000), the

circuit court in this case could grant interest on the back pay of Freeman’s disability benefits. Alternatively,

Freeman asserts that the doctrine of unjust enrichment supports the circuit court’s order to pay interest on

the benefits.

¶4.     Under well-settled Mississippi law, the award of prejudgment interest is in the discretion of the trial

court, regardless of the statute under which such interest is sought. United States Fid. & Guar. Co.

v. Conservatorship of Melson, 809 So.2d 647, 662 (Miss. 2002). Miss. Code Ann. § 75-7-17

provides:

        All judgments or decrees on any sale or contract shall bear interest at the same rate
        as the contract evidencing the debt on which the judgment or decree was rendered. All
        other judgments or decrees shall bear interest at the per annum rate set by the judge
        hearing the complaint from a date determined by such judge to be fair, but in no event prior
        to the filing of the complaint.

(emphasis added). As this Court noted in Pub. Employees’ Ret. Sys. of Miss. v. Langham, 812

So.2d 969, 974 (Miss. 2002), Section 75-7-17 “sets out the limited instances in which a claimant has a

right to prejudgment interest.”




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¶5.     Before the court below, Freeman relied on Langham for the contention that interest was payable

on his disability benefits.2 In Langham, the plaintiff’s husband, a Mississippi Highway Patrol (“the Patrol”)

officer, was killed in the line of duty. 812 So. 2d at 971. In 1997, Langham became aware of an

amendment to Miss. Code Ann. § 25-13-13 which increased the benefits available to widows of highway

patrol officers killed in the line of duty. Id. Seeking increased survivor benefits for her stepchildren (the

deceased officer’s children) and interest on unpaid benefits, Langham sued PERS and the Patrol in the

Chancery Court of Covington County based on this change in the law. Id. The court entered a judgment

in favor of Langham. Id. at 970. On appeal, the only appellant in Langham was the Patrol because

PERS agreed to pay whatever amount the Patrol decided Langham was entitled. Id. We note also that

Langham did not involve disability benefits, as does the case at bar.

¶6.     “The Patrol and PERS are completely separate retirement systems, each with their own

administrative board.” Id. at 972. PERS merely administers the Patrol’s retirement system. Id. at 970.

The Patrol was organized specifically to “provide a separate retirement system for the highway safety

patrol.” Id. Further, there is no statutory scheme for administrative appeals under the Patrol’s retirement

system. Id. Langham afforded the Patrol an opportunity to render a decision on the matter by meeting

with the Patrol administrative board at least twice and corresponding/meeting with other people connected

with the board. Id. Because the Patrol rendered no decision, Langham “properly chose to file suit in

chancery court.” Id. We noted that “the Patrol was ‘designed to provide more liberal benefits for the




        2
       It is unclear to what extent the circuit court relied on Langham in its decision to order the
payment of interest since the court did not render a written opinion upon remand. However, the court
amended its order to include the payment of interest after receiving Freeman’s letter in which he raised
Langham.

                                                     4
highway safety patrolmen’ than those set out in the statutes relating to PERS.” Id. at 974 (quoting

Miss.Code Ann. § 25-13-1).

¶7.     The Patrol in Langham argued that nothing authorized it to pay interest on the “late payments.”

Despite the Patrol’s arguments against interest payments, this Court in Langham held that the award of

interest was appropriate. Id. We held that although the award of interest was proper, the trial court erred

in ordering six percent interest because Miss. Code Ann. § 75-17-1 mandates that the “‘legal rate of

interest on all notes, accounts and contracts shall be eight percent (8%) per annum.’” Id. at 975 (quoting

Miss. Code Ann. § 75-17-7).

¶8.     Here, in its letter opposing the amended remand order, PERS argued that Langham was

inapplicable to the case at bar because PERS was dismissed early in the Langham proceedings.

Moreover, PERS asserted that Langham is distinguishable because it was a civil action and the

controversy here is an appeal of an administrative decision. We agree.

¶9.     In addition, PERS noted that Freeman failed to raise the issue of interest in the proceedings before

PERS and the court below. This Court has repeatedly held that an issue not raised before the lower court

is deemed waived and is procedurally barred. Davis v. State, 684 So.2d 643, 658 (Miss. 1996); Cole

v. State, 525 So.2d 365, 369 (Miss. 1987). We, therefore, apply the procedural bar.

¶10.    Moreover, our mandate in Freeman I falls under the law of the case doctrine. This doctrine has

been described as follows:

        The doctrine of the law of the case is similar to that of former adjudication, relates entirely
        to questions of law, and is confined in its operation to subsequent proceedings in the case.
        Whatever is once established as the controlling legal rule of decision, between the same
        parties in the same case, continues to be the law of the case, so long as there is a similarity
        of facts. This principle expresses the practice of courts generally to refuse to reopen what



                                                      5
        has previously been decided. It is founded on public policy and the interests of orderly and
        consistent judicial procedure.

Moeller v. Am. Guarantee & Liab. Ins. Co., 812 So.2d 953, 960 (Miss. 2002) (quoting Simpson

v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1376 (Miss. 1990)). According to the mandate rule,

a specific application of this doctrine, a mandate issued by this Court “‘is binding on the trial court on

remand, unless the case comes under one of the exceptions to the law of the case doctrine.’” Moeller,

812 So.2d at 960 (quoting Simpson, 564 So.2d at 1377). These exceptions include “‘material changes

in evidence, pleadings or findings,’” Moeller, 812 So.2d at 960 (quoting Cont’l Turpentine & Rosin

Co. v. Gulf Naval Stores Co., 244 Miss. 465, 480, 142 So.2d 200, 207 (1962)), and “the need for

the Court to ‘depart from its former decision’ ‘after mature consideration’ so that ‘unjust results’ will not

occur.” Moeller, 812 So.2d at 961 (quoting Brewer v. Browning, 115 Miss. 358, 364, 76 So. 267,

269 (1917)).

¶11.    Our mandate in this case did not address interest. Rather, we simply ordered reinstatement of

Freeman’s disability status and his benefits with back pay only. While it ordered reinstatement of

Freeman’s status and benefits, the circuit court in addition ordered interest on the benefits. The circuit

court, therefore, exceeded the scope of our mandate. In addition, we find that no applicable exception to

the law of the case doctrine in the case sub judice.

                                            CONCLUSION

¶12.    Because he failed to raise the issue of interest in the proceedings before PERS and the court

below, Freeman’s claim for interest is procedurally barred. Furthermore, under the mandate rule, our

original mandate in this case in Freeman I was binding on the court below. That mandate did not address

interest at all. Thus, the circuit court erred in exceeding the scope of our mandate in this case. Therefore,


                                                       6
we reverse and render the circuit court’s judgment on remand fromFreeman I only to the extent that it

awarded interest.

¶13.   REVERSED AND RENDERED.

       PITTMAN, C.J., WALLER, P.J., COBB, CARLSON, GRAVES AND DICKINSON,
JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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