         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CA-01190-COA

EDWARD SPRINGER                                                                APPELLANT

v.

AUSBERN CONSTRUCTION CO., INC.                                                   APPELLEE

DATE OF JUDGMENT:                            05/08/2014
TRIAL JUDGE:                                 HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:                   CHICKASAW COUNTY CIRCUIT COURT,
                                             FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                     REX F. SANDERSON
                                             BARRETT JEROME CLISBY
ATTORNEYS FOR APPELLEE:                      MARK D. HERBERT
                                             SABRINA BOSARGE RUFFIN
                                             BRADFORD COLEMAN RAY
NATURE OF THE CASE:                          CIVIL - TORTS - OTHER THAN PERSONAL
                                             INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                     JUDGEMENT RENDERED IN FAVOR OF
                                             APPELLEE FOR $182,500
DISPOSITION:                                 REVERSED AND RENDERED - 08/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    A Lafayette County jury awarded Ausbern Construction Company Inc. a judgment of

$182,500 against county engineer Edward Springer for tortious interference with a road-

construction contract. Springer appeals. We find that Springer acted within the scope of his

responsibility to the County and without bad faith. Because his actions were not “without

right or justifiable cause,” the element of tortious interference that constitutes malice was not
satisfied. We also find that the claim against Springer implicates the Mississippi Tort Claims

Act, and that Springer’s motion to dismiss due to lack of pre-suit notice should have been

granted. We therefore reverse and render the verdict against Springer.

                          FACTS AND PROCEEDINGS BELOW

¶2.    Ausbern won a contract bid with Chickasaw County for construction of a road.

Ausbern’s bid was based on unit specifications prepared by the office of Chickasaw County’s

engineer, Springer. Springer’s original plans estimated that 7,689 cubic yards of 304A fill

material would be required. This estimate turned out to be an error, and the project actually

required 17,700 cubic yards of the unit material.

¶3.    The project was subject to oversight from the Mississippi Office of State Aid. State

Aid projects are subject to the regulations found in the “Mississippi Standard Specifications

for State Aid Road and Bridge Construction” (the Green Book). Under the Green Book, the

local county engineer is responsible for inspecting the contractor’s work, measuring and

keeping track of the actual unit quantities placed by the contractor, preparing monthly

estimates of the work actually performed by the contractor, and reporting that quantity and

corresponding earned contract amounts to both the State Aid Division and the County.1

¶4.    Section 105.17 of the Green Book provides a mechanism for a contractor to make a

claim for adjustments from the original contract. It specifies that it “is in the public interest

that the Board and the State Aid Engineer have early or prior knowledge of an existing or

impending claim of any nature by the Contractor,” that “the Contractor shall notify the



       1
           A representative of Springer was present at the job site during construction.

                                               2
Engineer in writing of an intention to make such claim for additional compensation before

beginning the work on which the Contractor bases the claim or for such extension of time as

soon as the facts first become known on which the Contractor bases the claim for

adjustment,” that “the Contractor hereby agrees that failure to provide written notice has

denied the Board and the State Aid Engineer the prerogative of verifying additional time,

materials, equipment, labor and making adjustment in the work which might remove or

mitigate the conditions for which a claim might be made,” and that “the Contractor further

agrees that such failure on the Contractor’s part shall be a conclusive waiver of any claim,

or part thereof.”

¶5.    Ausbern did not give notice to the State Aid Office or to the county engineer,

Springer, that the project required almost three times as much fill material as the contract

called for until after the project was completed in November 2011. Ausbern sent Springer

emails November 23, 2011, December 2, 2011, and December 22, 2011, informing him that

the amount of 304A the project required was significantly more than the original estimates

and asking how the overage would be addressed.2 Ausbern then contacted Joel Bridges, the

district engineer with the State Aid Division. Bridges forwarded Ausbern’s letter to Springer.

¶6.    In January 2012, Ausbern filed a formal claim for payment for the overage with the

State Aid Office under Green Book section 105.17. State Aid Division engineer Joel Bridges

approved this claim in February 2012, finding that Springer’s original plans were in error and

informing Chickasaw County and Springer that the Ausbern contract should be adjusted to



       2
           Springer did not reply to those emails.

                                               3
show 17,700 cubic yards of 304A and that Ausbern would be paid at the contract rate of

$19.50 per cubic yard. Bridges also informed the Board of Supervisors in person that the

claim had been approved. The County delayed payment pending approval from Springer.3

¶7.    In February 2012, Springer sent a letter to Ausbern acknowledging the error and

offering that Ausbern should accept $8.00 a cubic yard for the overage rather than the

contract unit price of $19.50. Ausburn declined to negotiate the unit price and in March 2012

sued Chickasaw County for breach of contract. Ausbern later joined Springer to the action,

suing him individually for tortious interference with the contract due to his delay in

addressing the overage and his failure to submit approval of an amended contract to the

County.4 Ausbern did not provide pre-suit notice pursuant to the Mississippi Tort Claims Act.

¶8.    The court granted a directed verdict to Ausbern against the County on its liability for

breach of contract. The court rejected the County’s argument that Ausbern had waived its

right to be paid for the overage by failing to comply exactly with any notice requirements of

Green Book section 105.17, stating: “I don’t think that the failure to comply with the notice

provisions excuses performance on the part of the county.” The jury awarded Ausbern a

judgment against the County for $387,793.50. That verdict was not appealed.

¶9.    The trial court denied Springer’s pretrial and posttrial motions asserting that the

tortious-interference claim against him implicated the Mississippi Tort Claims Act and that



       3
        The wife of the owner of Ausbern was the attorney for the Board of Supervisors.
She recused herself from matters dealing with this contract.
       4
        The court granted Ausbern’s motion to transfer venue. The trial took place before
a Lafayette County jury.

                                              4
the suit against him should be dismissed due to lack of pre-suit notice. The jury awarded

Ausbern a judgment of $182,500 against Springer for tortious interference, including

damages associated with lost bonding capacity due to outstanding accounts receivable.

¶10.   Springer appeals.

                                      DISCUSSION

¶11.   We review a trial court’s grant or denial of a motion for a new trial for abuse of

discretion. Barriffe v. Estate of Nelson, 153 So. 3d 613, 618 (¶22) (Miss. 2014). Questions

of law are reviewed de novo. Id. at (¶26).

       I.     Whether Ausbern proved the elements of tortious interference.

¶12.   Springer argues that Ausbern failed to prove the element of tortious interference with

a contract that implicates malice. Recovery for tortious interference is permissible where a

plaintiff proves (1) the acts were intentional and willful; (2) they were calculated to cause

damage to the plaintiff in his lawful business; (3) they were done with the unlawful purpose

of causing damage and loss, without right or justifiable cause on the part of the defendant,

which acts constitute malice; and (4) actual damage or loss resulted. Reeves v. Midcontinent

Exp. Pipeline LLC, 119 So. 3d 1097, 1102 (¶13) (Miss. Ct. App. 2013). “In this context,

‘malicious’ is defined as the intentional doing of a harmful act without legal or sound

justification or excuse, in other words, the willful violation of a known right.” Collins v.

Collins, 625 So. 2d 786, 790 (Miss. 1993). “An action for interference with the contract

ordinarily lies when a party maliciously interferes with a valid and enforceable contract,

causing one party not to perform and resulting in injury to the other contracting party.”



                                             5
Nichols v. Tri-State Brick & Tile Co., 608 So. 2d 324, 328 (Miss. 1992).

¶13.   An individual has been held as privileged to interfere with a contract when the

defendant occupies a position of responsibility on behalf of another and interferes within the

scope of that responsibility and without bad faith. Shaw v. Burchfield, 481 So. 2d 247, 254-

55 (Miss. 1985) (defendant insurance agents had responsibilities related to the plaintiff’s

terminated at-will employment contract); see also Vestal v. Oden, 500 So. 2d 954, 955 (Miss.

1986) (“[O]ne occupying a position of responsibility on behalf of another is privileged,

within the scope of that responsibility and absent bad faith, to interfere with his principal’s

contractual relationship with a third person.” (citing Restatement (Second) of Torts § 770

comment b, illustration 3 (1979))).

¶14.   This Court found in Morrison v. Mississippi Enterprise for Technology, 798 So. 2d

567, 575 (¶28) (Miss. Ct. App. 2001), that this “‘privilege’ is merely a specific example of

having ‘right or justifiable cause’ to interfere with the [contractual] relationship.” “A person

occupying a position of responsibility on behalf of another is ‘privileged,’ which is another

word for having a right.” Id. at (¶29). To satisfy this element of tortious interference when

an individual is acting within the scope of responsibility on behalf of another, the plaintiff

must present evidence of bad faith. Jones v. Mullen, 100 So. 3d 490, 498 (¶36) (Miss. Ct.

App. 2012) (affirming the grant of summary judgment to the defendants where the plaintiffs

did not sufficiently allege a genuine dispute as to the element of bad faith). “Bad faith” in this

context “raises an issue of motive.” Morrison, 798 So. 2d at 575 (¶26). And “the conclusion

[of bad faith] must be that the actor was malicious or recklessly disregarding the rights of the



                                                6
person injured.” Id.

¶15.   In short, if the actor was not within the scope of his authority, then the privilege, this

specific example of a “right,” does not apply. However, if the actor is within the scope of the

actor’s responsibility, then for the “without right” portion of the third prong to be met, the

actor must be found to have acted in bad faith, and motive is relevant to a determination of

bad faith.

¶16.   This privilege (or “right”) applies to Springer on the facts of this case.5 Springer

occupied a position of responsibility on behalf of the County and was operating within the

scope of that responsibility in matters related to this contract. Evaluating and mitigating

claims for a contract adjustment were part of his responsibilities under the Green Book.

Springer acknowledged the overage and Ausbern’s entitlement to additional compensation.6

Springer’s attempt to evaluate and mitigate the overage after the fact – which would typically

be done prior to approval of the additional work under the notice requirements of Green

Book section 105.17, but which was not done here because Ausbern did not give notice of

the overage until the project was complete – does not indicate an ill motive rising to the level

of bad faith or intent to harm for the purpose of moving Springer’s actions outside of the

scope of his responsibility to the County and therefore outside his right to interfere. The


       5
         The jury instruction on the elements of tortious interference stated in part “that
Edward Springer intentionally and harmfully acted with malice, with no justification or
excuse, to interfere with the Board of Supervisors’ performance of the contract.”
       6
         To support that Springer’s actions were related to his responsibility to the County
and not in bad faith, Springer points out that the county engineer receives a percentage of
the overall contract payment. Springer was therefore acting against his own pecuniary
interest in attempting to negotiate down the unit price of the overage.

                                               7
verdict against Springer was therefore improper.

       II.    Whether the trial court erred in failing to treat the tortious-
              interference claim against Springer as implicating the notice
              requirements of the Mississippi Tort Claims Act.

¶17.   Springer argued pretrial in his motion to dismiss and argues again here on appeal that

the tortious-interference claim against him as a governmental employee implicated the

Mississippi Tort Claims Act and that Ausbern was therefore required to comply with the

Act’s pre-suit notice requirements. See Miss. Code Ann. § 11-46-11(1) (Rev. 2012); Ivy v.

E. Miss. State Hosp., 191 So. 3d 120, 122 (¶8) (Miss. May 12, 2016). We agree with

Springer’s argument that the notice requirements of the Mississippi Tort Claims Act are

applicable to the claim against him.

¶18.   In Whiting v. University of Southern Mississippi, 62 So. 3d 907, 915 (¶15) (Miss

2011), the Mississippi Supreme Court stated:

       While [the plaintiff] attempts to characterize these claims as breach of
       contract, a fair reading of the facts of this case and the manner in which [the
       plaintiff] lays out her argument establish that if there were a claim to be made,
       it would be for tortious breach of contract and tortious interference with
       contract. As such, the claims made against the Board or the university are
       governed by the provisions of the MTCA.

See also Miss. Dep’t of Envtl. Quality v. Pac. Chlorine, 100 So. 3d 432, 439 (¶8) (Miss.

2012). This holding supports that claims of tortious interference with a contract brought

against an individual governmental employee implicate the pre-suit notice requirements of

the MTCA.

¶19.   The United States Court of Appeals for the Fifth Circuit has agreed and has treated

Whiting as standing for the rule that a plaintiff alleging tortious interference against a public

                                               8
employee must satisfy the notice requirements of the Mississippi Tort Claims Act, even when

the suit is proceeding against only an individual. Johnson v. City of Shelby, Miss., 743 F.3d

59 (5th Cir. 2013)7 (tortious-interference claim against alderman subject to MTCA). Johnson

states: “Because we apply the latest and most authoritative expression of state law applicable

to the facts of a case, we follow Whiting here.” Id. at 64. Subsequent federal cases agree. See

Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792, 807 (S.D. Miss. 2015) (“Claims

for tortious interference are subject to the MTCA and its notice requirements.”). Brown v.

City of Saltillo, Miss., 106 F. Supp. 3d 784, 792 (N.D. Miss. 2015) (“In Whiting, 62 So. 3d

at 916, the Mississippi Supreme Court ruled that a malicious interference claim is subject to

the MTCA and thus that the notice requirement applies to such claims.”).

¶20.   Pre-suit notice is a “prerequisite to a claimant’s right to file suit[,]” but “does not,

however, touch on the merits of the claim.” Arceo v. Tolliver, 19 So. 3d 67, 74 (¶38) (Miss.

2009). Pre-suit notice serves the important function of allowing the governmental entity to

assess whether the employee acted within the scope of employment and to establish a

position on whether the alleged conduct gives rise to an immunity exception. See Miss. Code

Ann. § 11-46-5(2) (Rev. 2012) (employee not acting within scope of employment when

acting with malice); id. (providing for governmental defense of employee not acting within

scope of employment).

¶21.   The supreme court’s position in Whiting is consistent with previous decisions of this

Court. In Dunston v. Mississippi Department of Marine Resources, 892 So. 2d 837, 842

       7
        Johnson was reversed on an unrelated section 1983 ground in Johnson v. City of
Shelby, Mississippi, 135 S. Ct. 346 (2014) (applying 42 U.S.C. § 1983 (2012)).

                                              9
(¶13) (Miss. Ct. App. 2005), this Court stated that a claim of tortious interference against a

government employee was appropriately initiated under the Mississippi Tort Claims Act.

That suit, alleging tortious interference by a governmental employee with a wetlands-

development contract, implicated Mississippi Code Annotated section 11-46-9(1)(h) (Rev.

2012), which provides immunity:

       Arising out of the issuance, denial, suspension or revocation of, or the failure
       or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit,
       license, certificate, approval, order or similar authorization where the
       governmental entity or its employee is authorized by law to determine whether
       or not such authorization should be issued, denied, suspended or revoked
       unless such issuance, denial, suspension or revocation, or failure or refusal
       thereof, is of a malicious or arbitrary and capricious nature[.]

This provision closely resembles Springer’s Green Book responsibilities concerning review,

mitigation, and approval of alterations to the original construction contract, making the

Mississippi Tort Claims Act the appropriate framework through which to determine whether

a specified circumstance exists.8

¶22.   As it did below at the hearing on Springer’s motion to dismiss, Ausbern relies on the

earlier case of Zumwalt v. Jones County Board of Supervisors, 19 So. 3d 672, 688 (¶84)

(Miss. 2009), for the proposition that claims of tortious interference should be brought

independently against governmental employees because the tort contains the essential

element of malice. “[T]he Mississippi Supreme Court in Whiting did not reference or

explicitly overrule Zumwalt. It is therefore unclear whether the Mississippi Supreme Court

intended for Whiting to overrule Zumwalt or whether the two cases are somehow

       8
         Springer asserts that the provisions of Mississippi Code Annotated section 11-46-
9(1)(b), (d), (g), (h), (p), and (y) (Rev. 2012) apply to him.

                                              10
distinguishable.” Dearman v. Stone Cty. Sch. Dist., No. 1:13-cv-267-HSO-RHW, 2014 WL

3747600, at *3 (S.D. Miss. July 29, 2014).9 Absent resolution of any conflict between the two

cases by the Mississippi Supreme Court, we agree with the approach of treating Whiting as

the applicable rule. The pre-suit notice requirements of Mississippi Code Annotated section

11-46-11(1) therefore apply to the claim against Springer. Tortious claims against Mississippi

governmental entities and their employees are cloaked in sovereign immunity, unless a

waiver of sovereign immunity applies. Here, the prerequisite of statutory pre-suit notice was

not attempted, so that waiver of sovereign immunity was not accomplished.

                                     CONCLUSION

¶23.   Springer acted within the scope of his responsibility to the County and without bad

faith. Because his actions were not “without right or justifiable cause,” the element of

tortious interference that constitutes malice was not satisfied. The trial court also erred in

finding that the claim against him did not implicate the pre-suit notice requirements of the

MTCA. We therefore reverse the judgment against him.

¶24. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

       9
         In Zumwalt, a governmental entity sued an individual seeking a permanent
injunction related to that individual’s claim of ownership of a license to run a nursing home.
The individual brought a counterclaim against only governmental entities, not individuals,
alleging various torts, including tortious interference.

                                             11
C.J., GRIFFIS, P.J., AND FAIR, J.

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

¶25.   I agree that Ausbern’s claim for tortious interference with a contract fails as a matter

of law because there is no evidence of “malice,” which is an essential element of the tort.

I also agree that, for that reason, we should reverse and render judgment in favor of Springer.

¶26.   However, I disagree with the majority’s conclusion that Ausbern’s claim for tortious

interference with a contract was subject to the pre-suit notice requirements of the Mississippi

Tort Claims Act (“MTCA”). In fact, by proceeding against Springer individually without

serving notice under the MTCA, Ausbern was simply following the clear holding of the

Mississippi Supreme Court’s opinion in Zumwalt v. Jones County Board of Supervisors, 19

So. 3d 672 (Miss. 2009):

              The MTCA does not apply to all claims against governmental entities.
       The Act provides specific exclusions to its protections and requirements, and
       each claim must be examined for MTCA application.

              With respect to the claim of tortious interference with business relations
       and/or contracts, the MTCA does not apply. The MTCA provides immunity
       for the alleged torts of governmental entities. However, the MTCA waives
       that immunity, and the governmental entity is liable, for injuries caused by the
       entity or its employees while acting in the course and scope of their
       employment.

              Certain intentional torts are excluded from the MTCA’s waiver of
       immunity. Subsection (2) of Mississippi Code Section 11-46-5 provides that
       torts constituting fraud, malice, libel, slander, defamation, or any criminal
       offense other than traffic violations are not within the course and scope of
       employment. Thus, these intentional torts are outside the scope of the
       MTCA’s waiver of immunity, and the MTCA does not apply.

              Tortious interference with business relations and contracts requires
       proof of malice as an essential element. Therefore, the MTCA does not apply


                                              12
       to these torts, and any legal action against a governmental employee for these
       intentional torts must necessarily proceed against him or her as an individual.

             To the extent the chancellor determined that notice was required before
       pursuing claims of tortious interference with either business relations or
       contracts, this was error.

Id. at 688 (¶¶81-85) (emphasis added; citations omitted).

¶27.   Thus, in this case, Ausbern properly sued Springer “as an individual” on a non-MTCA

claim for tortious interference with a contract—indeed, per Zumwalt, Ausbern was required

to pursue the claim on that basis. And, like the chancellor in Zumwalt, the majority errs by

holding that the claim is subject to the MTCA and that notice was required.

¶28.   Zumwalt’s holding follows directly and logically from the plain language of the

MTCA. “For . . . purposes of [the MTCA] an employee shall not be considered as acting

within the scope and course of his employment and a governmental entity shall not be liable

or considered to have waived immunity for any conduct of its employee if the employee’s

conduct constituted . . . malice . . . .” Miss. Code Ann. § 11-46-5(2) (Rev. 2012). Malice is

an essential element of a claim for tortious interference with a contract. Therefore, the

county was immune from liability for any alleged tortious interference by Springer, and

Ausbern properly proceeded against Springer individually rather than serving pre-suit notice

on the county. Zumwalt, 19 So. 3d at 688 (¶¶81-85).

¶29.   I agree with the majority that the Supreme Court’s subsequent decision in Whiting v.

University of Southern Mississippi, 62 So. 3d 907 (Miss. 2011), appears to conflict with

Zumwalt insofar as it suggests that a claim for tortious interference with a contract is subject

to the MTCA. See id. at 915 (¶15). However, the plaintiff in Whiting did not actually assert

                                              13
a claim for tortious interference; rather, she asserted a claim for breach of contract, which

failed as a matter of law, and the Court stated “that if there were a claim to be made, it would

be for tortious breach of contract and tortious interference with contract.” Id. That is the

opinion’s only mention of a claim for tortious interference with a contract. Moreover,

Whiting did not discuss or even mention Zumwalt or the fact that “malice” is an essential

element of the tort. Finally, post-Whiting, this Court has continued to cite Zumwalt for the

proposition that a “[c]laim of tortious interference with business contracts requires proof of

malice and is, therefore, not subject to the MTCA.” Weible v. Univ. of S. Miss., 89 So. 3d

51, 64 (¶40) (Miss. Ct. App. 2011); see also Kelley LLC v. Corinth Pub. Utils. Comm’n, No.

2013-CA-00923-COA, 2016 WL 225356, at *15 n.7 (Miss. Ct. App. Jan. 19, 2016) (stating

that the MTCA does not waive sovereign immunity for claims alleging tortious interference

with business relations because the tort requires proof of malice). For these reasons, I would

not read Whiting’s passing reference to this tort as overruling, sub silentio, Zumwalt’s clear

and considered holding that the tort is not subject to the MTCA’s notice requirements.

¶30.   Part II of the majority opinion holds that the MTCA requires a plaintiff to serve a

governmental entity with pre-suit notice of a claim for tortious interference with a contract,

even though the MTCA and Zumwalt make clear that the governmental entity retains

sovereign immunity on any such claim. I respectfully disagree with that holding. However,

I concur in the majority’s conclusion in Part I that Ausbern’s claim fails as a matter of law

because he failed to prove “malice,” an essential element of the tort. I also concur in the

result because Ausbern’s failure of proof on an essential element is dispositive regardless of



                                              14
whether the MTCA applies.

      LEE, C.J., GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.




                                    15
