          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-00603-COA

SOUTHERN HEALTH CORPORATION OF                                             APPELLANTS
HOUSTON, D/B/A TRACE REGIONAL
HOSPITAL AND DR. VICTOR HORN

v.

CAROL CRAUSBY                                                                  APPELLEE


DATE OF JUDGMENT:                          04/21/2014
TRIAL JUDGE:                               HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED:                 CHICKASAW COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  JOHN P. FOX
                                           LUTHER C. FISHER IV
                                           ELIZABETH FOX AUSBERN
ATTORNEY FOR APPELLEE:                     RONALD W. LEWIS
NATURE OF THE CASE:                        CIVIL - TORTS - OTHER THAN PERSONAL
                                           INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                   JURY VERDICT OF $80,000 FOR CIVIL
                                           CONSPIRACY
DISPOSITION:                               AFFIRMED IN PART AND REVERSED
                                           AND RENDERED IN PART: 05/26/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Carol Crausby worked as an emergency room nurse at Trace Regional Hospital in

Houston, Mississippi – until Dr. Victor Horn demanded that she be fired, and the hospital

agreed.   A jury awarded Crausby $80,000 from the hospital on her claim that its

administrators had conspired with Dr. Horn to tortiously interfere with her employment

relationship . . . with the hospital. Although we find a challenge to the legal theory waived,
we reverse and render the award because acquiescing to Dr. Horn’s demands did not amount

to a conspiracy to tortiously interfere with Crausby’s employment.

                                            FACTS

¶2.    In early 2001, Crausby was the managing supervisor of the emergency room at Trace

Regional Hospital in Houston, Mississippi. She had held that position for a few years.

Crausby was a “working” nurse manager who both supervised the emergency room and

tended to patients. She seems to have been regarded as highly competent but occasionally

abrasive with some of her coworkers, especially when she felt someone was imposing on her

or her department. Dr. Horn was the chief of staff – not an employee of the hospital, but a

liaison with the hospital administration chosen by the physicians who practiced at the

hospital. At the time Dr. Horn had been a physician in Houston for about twenty years.

¶3.    Dr. Horn was only occasionally present in the emergency room, but he alleged a series

of incidents with Crausby that led him to demand that she be fired.1 Dr. Horn claimed that,

about a year prior, he had heard Crausby say “Abby has left the building” after a patient

died.2 He alleged that on another occasion, Crausby had refused to contact another doctor

to get dosage history for a patient. At trial, Dr. Horn alleged (for the first time, Crausby

argued) that she had vocally objected to administering an antibiotic to a different patient, in

the patient’s presence. Various other incidents were noted that were not connected with Dr.

       1
        According to Dr. Horn, he relented a short time later and just asked not to have to
work with her.
       2
           A fictitious name has been substituted to protect the confidentiality of the patient.

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Horn – Crausby’s reluctance to be on call; her delays in preparing for a certification;

comments from another employee regarding difficulty dealing with her; a dispute with

another physician (Dr. Horn’s brother) over the temperature in the emergency room.

¶4.    After Dr. Horn brought his complaint to the hospital administrators, they arranged a

meeting between Crausby, Dr. Horn, the hospital CEO, a nurse who was Crausby’s direct

superior, and the human resources manager. During the meeting, as Dr. Horn was recounting

his allegations, Crausby disputed that she had made the comment about the patient “leaving

the building.” Dr. Horn became angry, threatened either to withdraw his “support” from the

hospital or withdraw his patients (depending on whose account is accepted), and left,

throwing a telephone on his way out.

¶5.    Later, the hospital presented Crausby with an “improvement plan” which she was

expected to sign. The first iteration contained various statements that Crausby felt unfairly

blamed her or called her professionalism into question. Following either her refusal or

reluctance (depending on the account) to accept the plan or some revised version of it, and

her refusal to accept demotion to a nonsupervisory position, Crausby was either fired or quit,

again depending on the account.

¶6.    Crausby testified that the false allegations and mistreatment she suffered at the hands

of Dr. Horn and the hospital administration caused her an immense amount of stress. She

noted that she had to seek treatment for anxiety and related physical ailments while these

events were unfolding, and she claimed that it had caused her to lose the confidence she


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needed to continue performing at a high level in her field.

¶7.    Crausby’s suit named four defendants – Dr. Horn, the hospital, the hospital’s CEO,

and the HR manager. The complaint alleged various causes of action, many of which were

rejected by the jury. The jury found for Crausby on two claims: that Dr. Horn had slandered

her; and that the hospital was vicariously liable for a conspiracy between its CEO, the HR

manager, and Dr. Horn to interfere with Crausby’s employment. The jury awarded $80,000

in damages against the hospital, but $0 against Dr. Horn. The hospital and Dr. Horn have

appealed; Crausby has not cross-appealed.

                                         DISCUSSION

       1. Conspiracy to Tortiously Interfere with Contract

¶8.    As an at-will employee, Crausby could not sue the hospital directly for wrongful

termination except under very limited circumstances. See Jones v. Fluor Daniel Servs.

Corp., 959 So. 2d 1044, 1046-47 (¶10) (Miss. 2007). She instead pursued the hospital on the

theory that it was vicariously liable for the actions of its administrators in interfering with her

employment.

¶9.    “One who intentionally and improperly interferes with the performance of a contract

. . . between another and a third person, by preventing the other from performing the contract

or causing his performance to be more expensive or burdensome, is subject to liability to the

other for the pecuniary loss resulting to him.” Levens v. Campbell, 733 So. 2d 753, 760 (¶25)

(Miss. 1999) (quoting Restatement (Second) of Torts § 766A (1979)). This includes


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contracts of at-will employment. Id. at (¶27).

¶10.   Curiously, the jury found against Crausby on her claims of tortious interference by

Dr. Horn and on her conspiracy claims against the individuals, but for her on the vicarious

liability of the hospital. To the extent that this verdict was contradictory, that is not an issue.

See D.W. Boutwell Butane Co. v. Smith, 244 So. 2d 11, 12 (Miss. 1971) (“Where the

employee is exonerated and the master held liable, the case will not be reversed for that

reason alone.”).

¶11.   On appeal, the hospital contends that it cannot be held liable for interfering with its

own contract because tortious interference can occur only when the contract is “between

another and a third person.” Levens, 733 So. 2d at 760 (¶25). The hospital concedes,

however, that the issue of legal sufficiency can only be addressed by way of plain error, as

this argument was not presented to the trial court, and the instructions that allowed the jury

to find the hospital liable were either agreed or submitted by the defendants themselves. This

Court “will generally only exercise our discretion to review and correct a clear or obvious

error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Grindle v. State, 134 So. 3d 330, 338 (¶22) (Miss. Ct. App. 2013) (quoting Puckett v. United

States, 556 U.S. 129, 135 (2009)) (internal quotation marks omitted).

¶12.   We decline to address this argument. As to whether the error is plain, it is true that

Mississippi law does not allow an entity to be sued for interfering with its own contract. But

at least one court applying the same rule has held that a cause of action exists for conspiracy


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to do so with a third party. Blivas & Page Inc. v. Klein, 282 N.E.2d 210, 214 (Ill. App. Ct.

1972) (“While it is true that a party cannot be sued in tort for inducing the breach of his own

contract, he can be sued for conspiracy with a third person who has induced him to breach

his contract resulting in actual damage.”). Furthermore, any error on this point was invited

because the legal theory the hospital now challenges was presented to the jury by agreement;

in fact, the vicarious liability instruction was submitted by the defendants. The defendants

also submitted the form of the verdict instruction, which also allowed the jury to find the

hospital vicariously liable. Since the hospital submitted these instructions, “any error . . . is

of [its] own making.” Ill. Cent. R.R. v. Young, 120 So. 3d 992, 1004 (¶29) (Miss. Ct. App.

2012). The issue is waived for consideration on appeal. Id.

¶13.   We conclude that any error in allowing the hospital to be found vicariously liable was

invited, and we decline to address this issue as plain error.

¶14.   On the other hand, the issue of the sufficiency of the evidence supporting the verdict

remains squarely before us. Crausby alleges that the proof showed that the hospital

administrators knew that Dr. Horn’s complaints did not warrant firing her under their own

standards, but they cynically decided Dr. Horn was worth more to the hospital than Crausby,

so they forced her out to placate him. Granted, the evidence was sufficient to prove that; but

even if we accept Crausby’s theory of the case, at best it shows acquiescence to Dr. Horn’s

demands. Was this an agreement to tortiously interfere with her employment?

¶15.   We conclude that it was not. A civil conspiracy requires a “meeting of the minds on


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the object or course of action.” Braddock Law Firm PLLC v. Becnel, 139 So. 3d 722, 726

(¶18) (Miss. Ct. App. 2013). There must not only be an agreement, but an agreement “to

accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully.” Gallagher

Bassett Servs. Inc. v. Jeffcoat, 887 So. 2d 777, 786 (¶37) (Miss. 2004). Acquiescing to Dr.

Horn’s demand that Crausby be fired does not constitute an agreement to tortiously interfere

with her employment; tortious interference requires that the acts be done “with the unlawful

purpose of causing damage and loss, without right or justifiable cause.” Collins v. Collins,

625 So. 2d 786, 790 (Miss. 1993). However cynical it might be, agreeing to fire Crausby for

the hospital’s economic advantage does not satisfy that element of tortious interference.

¶16.   We conclude that the evidence failed to support the jury verdict, and so we reverse

and render the award of damages for conspiracy.

       2. Slander Per Se

¶17.   Finally, Dr. Horn challenges the jury’s finding that he slandered Crausby by making

various false allegations about her. He contends that the jury verdict was against the

overwhelming weight of the evidence. In reviewing this challenge, this Court asks whether

the trial court abused its discretion in denying the motion for a new trial. Bobby Kitchens

Inc. v. Miss. Ins. Guar. Ass’n, 560 So. 2d 129, 132 (Miss. 1989). We view all the evidence

in the light most consistent with the jury verdict. Motorola Commc’ns & Elecs. Inc. v.

Wilkerson, 555 So. 2d 713, 723 (Miss. 1989).

¶18.   Crausby’s proof at trial showed that Dr. Horn falsely accused her of making an


                                             7
unprofessional remark following the death of a patient and of refusing to follow his

instruction to get the dosage history of a patient. Dr. Horn accepts that the jury, as the finder

of fact, was entitled to find that his statements were false; but he argues that the statements

were protected by a qualified privilege because of the context in which they were made – i.e.,

regarding the functioning of the emergency room where Dr. Horn sometimes practiced. Dr.

Horn argues that the overwhelming weight of the evidence showed that the comments were

made for the betterment of the hospital and were said out of a good faith, if mistaken, belief

in their truthfulness.

¶19.   In Barmada v. Pridjian, 989 So. 2d 359, 362 (¶9) (Miss. 2008) (citations and

quotation marks omitted), the Mississippi Supreme Court laid out the law regarding qualified

privilege:

       When analyzing defamation claims, Mississippi courts employ a bifurcated
       process. First, the Court must determine whether the occasion calls for a
       qualified privilege. If a qualified privilege does exist, the Court must then
       determine whether the privilege is overcome by malice, bad faith, or abuse.
       This Court has defined qualified privilege as a communication made in good
       faith and on a subject matter in which the person making it has an interest, or
       in reference to which he has a duty, is privileged if made to a person or persons
       having a corresponding interest or duty, even though it contains matter which
       without this privilege would be slanderous . . . .

We agree that the statements, made by a doctor practicing in the emergency room, about an

emergency room nurse, directed only to the administrators of the hospital, were subject to the

qualified privilege. But there is still the question of whether the privilege was overcome by

malice, bad faith, or abuse.


                                               8
¶20.   Statements subject to the qualified privilege are presumed to have been made in good

faith. Id. at 364 (¶17). To overcome the presumption, the statements must have been made

with actual malice. Id. Actual malice means that “at the time the comments were published,

the speaker either knew them to be false or made them in reckless disregard of their truth.”

Smith v. White, 799 So. 2d 83, 87 (¶9) (Miss. 2001).

¶21.   In both cases, Dr. Horn claimed to have personally witnessed Crausby say or do

something that she testified unequivocally did not happen. The jury was entitled to believe

Crausby – “[w]hen evidence is conflicting, we defer to the jury’s determination of the

credibility of witnesses and the weight of their testimony.” Banks ex rel. Banks v. Sherwin-

Williams Co., 134 So. 3d 706, 711 (¶13) (Miss. 2014).

¶22.   Dr. Horn hangs his hat on Crausby’s admission, from the stand as she was being

cross-examined, that Dr. Horn may have sincerely but erroneously believed she had refused

his instructions to administer a drug. The sincerity of Dr. Horn’s belief, however, is not the

issue; one can honestly believe something and still say it in reckless disregard of its truth or

falsity. Dr. Horn also claims that Crausby admitted the same about his other claims, but the

record does not bear that out.3

¶23.   Dr. Horn next relies on the occasional statement in Mississippi caselaw that actual



       3
         The particular question Crausby answered in the affirmative was compound: “And
these other complaints, I know you explained that you completely disagreed with his version
of events. I understand that; but do you understand that for whatever reason, rightly or
wrongly, that was his perception; that he felt disrespected?”

                                               9
malice “denotes ill will, a sentiment of hate or spite, especially when harbored by one person

towards another, exists when one with a sedate, deliberate mind and formed design injures

another, as where the person is actuated by ill will in what he does and says, with the design

to willfully or wantonly injure another.” Barmada, 989 So. 2d at 364 (¶17) (citation

omitted). Dr. Horn argues that, if he held a sincere desire to protect his patients and ensure

that the emergency room functioned smoothly, which no one denies; and if he believed

removing Crausby would further those goals, he cannot be found to have made the statements

with the requisite ill will.    We disagree – Dr. Horn could have held both motives

simultaneously, and there was more than sufficient evidence for a jury to have found that he

was motivated by ill will toward Crausby. It is true that the fact that Dr. Horn was angry and

intemperate, even enraged, while demanding that Crausby be fired may not be enough to find

malice, in and of itself. Barmada, 989 So. 2d at 365 (¶21). But when paired with the fact

that Dr. Horn claimed to have personally witnessed things that did not happen, it was

sufficient for the jury to infer malice. “[I]ntent, being a state of mind, is rarely susceptible

of direct proof, but ordinarily must be inferred from the acts and conduct of the party and the

facts and circumstances attending them.” Jones v. State, 920 So. 2d 465, 472 (¶17) (Miss.

2006).

¶24.     Having reviewed the record, we conclude that the jury’s finding that Dr. Horn had

committed slander per se is not against the overwhelming weight of the evidence.

¶25. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY
IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL

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COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE
APPELLANT, DR. VICTOR HORN, AND THE APPELLEE.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND
MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




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