                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 93-CA-00242-SCT
GINGER MURPHREE, CONSERVATOR OF THE PERSON AND ESTATE OF L.R.
MURPHREE
v.
ABERDEEN-MONROE COUNTY HOSPITAL, BY ITS BOARD OF TRUSTEES, JULIAN
A. BROWN, JAMES S. REDDOCH, WILLIAM H. HITT, WILLIAM M. GRACE AND CECIL
S. BELLE

DATE OF JUDGMENT:                                   3/1/93
TRIAL JUDGE:                                        HON. FRANK ALLISON RUSSELL
COURT FROM WHICH APPEALED:                          MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                             CLAUDE A. CHAMBERLIN
ATTORNEY FOR APPELLEE:                              ROBERT H. FAULKS
NATURE OF THE CASE:                                 CIVIL - OTHER
DISPOSITION:                                        AFFIRMED - 3/7/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     3/28/96




     BEFORE DAN M. LEE, C.J., BANKS AND McRAE, JJ.


     BANKS, JUSTICE, FOR THE COURT:


¶1. In this matter we consider whether res judicata bars a landlord from recovering statutory double rent,
from a hold-over tenant, when the landlord has brought an action under the lease agreement during the
hold-over period, but failed to request such double rent for the hold-over period which has passed. We
hold that a landlord is not so barred, because the hold-over period establishes a separate and distinct cause
of action from that which arose from the lease agreement. Accordingly, we affirm.

                                                     I.

¶2. On June 30, 1983, The Aberdeen-Monroe County Hospital entered into a lease agreement with Drs.
L.R. Murphree and J.C. Chauvin. The five-year lease was to commence on August 1, 1983 and was to
terminate on July 31, 1988. On August 3, 1988, the hospital administrator sent a letter to Murphree
advising him that he was in arrears in the amount of $10,506.92. The letter also requested that Murphree
vacate the premises and that he would be charged double rent for any period of time he remained.

¶3. On January 16, 1990, the Hospital filed a complaint against Murphree in the Monroe County Circuit
Court. The complaint alleged that Murphree was jointly and severally liable for $9,000 in unpaid rent. The
complaint described the leased premises as 4000 square feet of office space located at 404 South Central
Street in Aberdeen, Mississippi. The Complaint also alleged that Murphree had breached the lease
agreement and that Murphree refuses to pay the $9,000. The court found that Murphree was personally
summoned and that he had failed to file an answer. The court entered a default judgment against Murphree,
holding Murphree liable for $9,000 plus prejudgment interest.

¶4. On February 14, 1991, the Hospital filed a second complaint against Murphree, alleging that he was a
hold-over tenant and was liable for double rent pursuant to Miss.Code Ann. § 89-7-25 (1972). The
Hospital filed an affidavit stating that it was a Community Hospital, organized and existing under the laws of
the State of Mississippi. The affidavit stated that as of February 15, 1991, Murphree was still in possession
of the leased premises and that he refused to vacate. Murphree claims that he occupied half of the premises
during and following the lease period. Murphree further claims that Dr. Chauvin occupied the other half and
that Dr. Chauvin vacated the premises prior to the expiration of the lease.

¶5. The affidavit of Julian Brown, president of the Hospital's Board of Trustees, stated that the office
building was purchased for the sole purpose of recruiting doctors to locate in Aberdeen and Monroe
County. Brown's affidavit also stated that the office building was purchased and leased to doctors, pursuant
to local and private legislation, specifically Senate Bill 2214, 1980 Miss.Laws 803. Furthermore, Brown's
affidavit stated that the Monroe County Board of Supervisors and the Aberdeen Board of Aldermen
passed resolutions authorizing the Hospital to purchase and lease the office building for the express purpose
of recruiting doctors. Copies of both resolutions were filed with the court.

¶6. On March 2, 1993, the court entered a judgment in response to the Hospital's motion for summary
judgment and Murphree's motion for partial summary judgment. The court's findings of undisputed facts
were:

     a) The Hospital owned an office located at 404 South Chestnut Street in Aberdeen, Monroe County,
     Mississippi;

     b) The office was purchased and leased pursuant to local and private legislation, specifically Senate
     Bill 2214 (Ch. No. 803), 1980 Miss.Laws;

     c) The Monroe County Board of Supervisors and the Aberdeen Board of Aldermen passed
     resolutions authorizing the purchase and lease of the office by the Hospital, for the express purpose of
     recruiting doctors to Aberdeen and Monroe County;

     d) The Hospital leased this office to Murphree by a written lease agreement for a period of five (5)
     years, terminating on July 31, 1988;

     e) The Lease agreement required monthly payments of $600 in advance on the first day of each
     month;

     f) Upon termination of the lease term, the hospital made a written demand on Murphree to vacate the
     office;

     g) Murphree refused to voluntarily leave the office, and the hospital petitioned the Monroe County
     Justice Court for an order of eviction;
      h) The Monroe County Justice Court issued an order of eviction to Murphree, and on appeal of that
      order, Murphree vacated the office on May 18, 1991;

      i) Murphree possessed the office after the term of the lease expired on July 31, 1988, for an
      additional period of 33 months 18 days until May 18, 1991;

      j) Murphree never paid any rent to the hospital for the 33 months 18 days he possessed the office as
      a hold-over tenant after July 31, 1988;

      k) The hospital previously filed suit against Murphree to recover earlier unpaid rent in arrears during
      the lease term to July 31, 1988, and received a judgment against Murphree in Cause No. 90-025-W
      in the Monroe County Circuit Court;

      l) The previous lawsuit and judgment did not seek recovery against Murphree for the statutory
      double-rent penalty owed by Murphree as a hold-over tenant, after termination of the lease term on
      July 31, 1988; and

      m) The previous lawsuit and judgment did rule that Murphree was jointly and severally liable for all
      rent in arrears for the entire office space.

The court concluded that Murphree was liable for double rent for the hold-over period, in the amount of
$40,296.77. The court also concluded that Murphree knew or could have easily ascertained what he owed
the Hospital as a hold-over tenant, and awarded prejudgment interest in the amount of $5,766.78. From
this Murphree's estate appeals.

                                                       II.

                                                       A.

¶7. Murphree argues that the claim for double rent for the period between July 31, 1988 to January 16,
1990 should have been barred in the first action, because the Hospital could have claimed the double rent
for this period in the first action. The four identities necessary before res judicata is applicable to a cause of
action are: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of
the parties to the cause of action; and (4) identity of the quality or character of a person against whom the
claim is made. Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982). Further,
the doctrine of res judicata holds that "[a] final judgment on the merits of an action precludes the parties and
their privies from relitigating claims that were or could have been raised" in an earlier action. Johnson v.
Howell, 592 So.2d 998, 1002 (Miss.1991). In the first action, the Hospital filed a claim to recover unpaid
rent. The first action was filed on January 16, 1990, at which time Murphree was a hold-over tenant. In
Hospital's first action they requested and received a default judgment in the amount of $9,000 for rent in
arrears, plus accrued interest. The Hospital did not assert a claim for double rent in the first action.

¶8. Although this Court has never considered whether an action against a hold-over tenant is a separate
cause of action from an action based on the lease agreement, there is support for such a contention in other
jurisdictions. In 650 Park Avenue Corp. v. McRae, 665 F.Supp. 228, 233 (S.D.N.Y.1987), the court
opined:

      The common law is that holding over beyond the expiration of a lawful tenancy creates a distinct
      cause of action for each term of the implied tenancy. See Kennedy v. City of New York, 196 N.Y.
      19, 25, 89 N.E. 360 (1909). Splitting an action into separate claims for separate terms may or may
      not still be appropriate. It remains true, however, that an action based on a prolonged holdover rests
      on different facts and law than those at issue in a possessory action at the conclusion of a lease term.
      Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281, 285
      (Dist.Ct.Nassau County 1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (App.Term 2d Dep't
      1973) (holdover tenancy "is a new term for a new period, separate and distinct from that which
      preceded it"); United States v. Bedford Associates, 491 F.Supp. 851, 866 (S.D.N.Y.1980)
      (Walker, J.), aff'd in part, rev'd in part on other grounds, 657 F.2d 1300 (2d Cir.1981), cert.
      denied, 456 U.S. 914, 102 S.Ct. 1767, 72 L.Ed.2d 173 (1982). [footnote omitted].

Today we join this line of cases and hold that an action against a hold over tenant is separate and distinct
from an action based on the lease agreement. Thus, the Hospital is not barred from bringing this action.

                                                        B.

¶9. Murphree's next assertion on appeal, is that the hospital's claim is subject to the one-year statute of
limitation of Miss.Code Ann. § 15-1-33 (1972), which reads as follows:

      All actions and suits for any penalty or forfeiture on any penal statute, brought by any person to whom
      the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the
      offense was committed, and not after.

¶10. The hospital relied on Miss.Code Ann. § 15-1-51 (1972), in order to prevent being barred by the
one-year statute of limitation. Section 15-1-51 reads in part, "Statutes of limitation in civil cases shall not run
against the state, or any subdivision or municipal corporation thereof...." Murphree claims that because the
Hospital was engaged in a proprietary function and the claim involves a penal statute, it is not entitled to the
protection of § 15-1-51. In support for this contention, Murphree cites City of West Point v. Meadows,
236 Miss. 394, 110 So.2d 372 (1959) and Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329
(1911), where this Court ruled that where an activity is non-governmental or proprietary, the doctrine of
sovereign immunity does not bar a cause of action. Murphree concedes that there is no precedent
established that directly supports his claims.

¶11. The Hospital cites Enroth v. Memorial Hospital at Gulfport, 566 So.2d 202 (Miss.1990), where
this Court held that Memorial Hospital at Gulfport is a "subdivision [of the state] or municipal corporation"
within the meaning of the Constitution and statutory § 15-1-51. Id. The trial court stated that it was
undisputed that the Monroe County Board of Supervisors and the Aberdeen Board of Alderman passed
resolutions authorizing the purchase and lease of the office by the Hospital, for the express purpose of
recruiting doctors to Aberdeen and Monroe County. The court also stated that the office was purchased
and leased pursuant to local and private legislation, specifically Senate Bill, 1980 Miss.Laws 803. Section
15-1-51 by its terms is not limited to actions arising out of the performances of governmental functions.
Although this Court has held that municipalities are amenable to suit when acting in a proprietary capacity,
we have never applied this dichotomy to counties or to a municipality's availment of § 15-1-51. We decline
to do so today. Thus, this claim is without merit.

                                                        C.
¶12. Murphree's third assertion on appeal is that Murphree occupied only part of the premises, and
therefore the double rent should be proportional to the portion he occupied. The court found that it had
been adjudicated in the first action that Murphree was jointly and severally liable for all rent in arrears for
the entire office space. The trial court was correct. Mississippi Code Ann. § 89-7-25, states in part:

      When a tenant being lawfully notified by his landlord, shall fail or refuse to quit the demised premises
      and deliver up the same as required by the notice ..., he shall, ..., thenceforward pay to the landlord
      double the rent which he should otherwise have paid, to be levied, sued for, and recovered as
      the single rent before the giving of the notice could be ... [emphasis added].

See also, Ellison v. Landry, 199 Miss. 161, 162, 24 So.2d 319, (1946) (stating that the amount
recoverable for a hold over tenancy period is double what the tenant agreed to pay.) Under the lease
agreement Murphree was jointly and severally liable for the entire rental. Thus, the rental on the entire
premises is what "he should otherwise have paid" under the statute.

                                                       D.

¶13. Murphree's last claim of error is that the trial court erred in granting prejudgment interest to the
Hospital. It is well settled that:

      Mississippi recognizes judicial authority to award prejudgment interest to a prevailing party in a
      breach of contract suit. An award of prejudgment interest rests in the discretion of the awarding
      judge. Under Mississippi law, prejudgment interest may be allowed in cases where the amount due is
      liquidated when the claim is originally made or where the denial of a claim is frivolous or in bad faith.

Hans Construction Co., Inc., v. Drummond, 653 So.2d 253, 264 (Miss.1995) (quoting Warwick v.
Matheney, 603 So.2d 330, 342 (Miss.1992)).

¶14. The court stated that "Murphree either knew or could have easily ascertained what he owed the
hospital as a hold-over tenant" and accordingly the court awarded prejudgment interest from May 18,
1991, the date Murphree vacated the premises and continued to refuse to pay the hospital.

¶15. Thus, this issue turns on whether the claim was liquidated, denial of the claim was frivolous or in bad
faith. The Hospital informed Murphree that it would charge him double rent for any period he stayed past
the expiration of the lease. Murphree knew he was occupying the premises, without a lease, and without
paying rent. Furthermore, Murphree was requested to leave at the end of the lease and after the first action,
but he refused. Based on these facts, we hold that awarding prejudgment interest was well within the
discretion of the trial court, in that Murphree's denial was frivolous and arguably in bad faith. Thus, this
claim is without merit.

¶16. For the foregoing reasons the judgment of the circuit court is affirmed.

¶17. AFFIRMED.

DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and PITTMAN, McRAE, JAMES L.
ROBERTS, Jr., and SMITH, JJ., concur. MILLS, J., not participating.
