IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00603-COA SOUTHERN HEALTH CORPORATION OF HOUSTON, D/B/A TRACE REGIONAL HOSPITAL AND DR. VICTOR HORN APPELLANTS

v. CAROL CRAUSBY APPELLEE

DATE OF JUDGMENT: 04/21/2014 TRIAL JUDGE: HON. JOHN ANDREW GREGORY COURT FROM W HICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: JOHN P. FOX LUTHER C. FISHER IV ELIZABETH FOX AUSBERN ATTORNEY FOR APPELLEE: RONALD W . LEW IS 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 em ergency room nur s e a t T r a c e Regional Hospital in Houston, Mississippi – until Dr. Victor Horn d em anded that she be f ired, a n d the hospital agreed. A jury awar d e d Crausby $80,000 f rom the h ospital on her claim that its ad mi n i s t rators had conspired with Dr. Horn to t ortiously interf ere with h er em

ploy m ent relationship

. . . with t he hospital. Although we f ind a challenge to the l egal t heory waived,we reverse and render the award because acquiescing to Dr. H orn’s dem a n ds did not am ount

to a conspiracy

to tortiously

interf ere with Crausby ’s em

ploy m e n t. FACTS ¶2. In early 2001, Crausby was the m anaging supervisor of the em ergency r oom at Trace Regional Hospital in Houston, Mississippi. S he h ad held that p o s i t i o n f o r a f ew y ears. Crausby was a “workin g ” n u r s e m anager who both supervised the em ergency room and tended to patients. She seem s to have been regarded as highly com petent but occasionally abrasive w ith som e of her coworkers, especially when she f elt s om eone w as im

p osing on her or her departm ent. Dr. H orn was the chief of staf f – not an em

p loy ee of the hospital, but a liaison with the hospital adm inistration c hosen by the phy sicians who p racticed at the hospital. At the tim e Dr. Horn had been a phy sician in Houston f or about twenty

y ears. ¶3. Dr. Horn was o nly occasionally present in the em ergency room , but h e alleged a series of incidents with Crausby that l ed him to dem a n d that she be f i red. 1 Dr. Horn claim ed that,

a b o u t a y e a r prior, he had h eard Crausby say “Abby has lef t the b uilding” af

ter a patient died. 2 He alleged that on another occasion, Crausby had ref used to contact another doctor

to get dosage h i story f

or a patient. At trial, Dr. Horn a lleged (f or the f irst t im e, Crausby argued) that she had vocally objected to adm inistering an antibiotic to a dif f erent patient, in the p atient’s presence. Various other incidents w ere noted that were not connected with Dr.

1 A cco rd in g to D r. H o rn , h e relen ted a sh o rt tim e later an d j u st ask ed n o t to h av e to w o rk w ith h er.

2 A f i ctitio u s n am e h a s b e en su b stitu t ed to p ro tect th e co n f id en tiality

o f th e p atien t. 2H o r n

– C r a usby ’s reluctance to be on call; her delay s in preparing f or a certif

icatio n ;

com m ents f

rom another e m

ploy ee regarding dif

f ic ulty dealing with her; a dispute with another phy sician (Dr. Horn’s brother) over the tem perature in the em e rgency room . ¶4. Af ter Dr. Horn brought his com p laint to the h ospital adm inistrators, t hey arranged a

m eeting between C rausby , Dr. Hor n , t h e hospital CEO, a nurse who was Crausby ’s direct superior, and t h e hum an resources m anager. During the m eeting, as D r. Horn was r ecounting his allegations, Crausby disputed that she had m ade the com m ent about the p atient “leaving the building.” Dr. Horn becam e angry , threatened either to withdraw his “support” f rom the hospital or withdraw his patients (d e p e n d i n g o n whose account is accepted), and lef t, throwing a telephone on his way out. ¶5. Later, the hospital presented Crausby wit h a n “ im provem ent plan” which she was expected to sign. The f

irst iteration contained various s tatem ents that Crausby f elt unf airly blam ed her or c alled her prof essionalism i nto question. F ollow i n g e i ther her ref usal or reluctance (depending on the account) to accept the plan or som e revised version of it, and her ref usal to accept dem otion to a nonsupervisory position, Crausby w as e i ther f ired or quit, again depending on the account. ¶6. Crausby testif

i ed t hat the f

alse allegations and m istreatm ent s he suf f ered at the hands of Dr. Horn and the h os p i t a l a dm inistration caused her an im m ense am ount of stress. She noted that she had t o seek treatm ent f or anxiety a nd r elated p h y s ical ailm ents while these

events w e r e u n f

o l ding, a nd she claim ed that i t had caused her to lose the conf idence she

3needed to continue perf orm ing at a high level in her f ield. ¶7. Crausby ’ s suit nam ed f our def endants – Dr. Horn, the hospital, the hospital’s CEO, and the HR m anager. T he com plaint a lleged various causes o f action, m any of which were rejected by the jury

. The jury f ound f or Crausby on two claim s: that D r. Horn had slandered her; and that the hospital was vicariously liable f o r a conspiracy between it s C E O , the HR

m anager, a nd Dr. Horn to interf e re with Crausby ’s em

p loy m ent. The j ury awarded $80,000
in dam a g es against the hospital, but $0 against Dr. Horn. T he hospital and D r. H o r n h a v e appealed; Crausby

has not cross-appealed.

DISCUSSION 1. Conspiracy to Tortiously Interfere w ith Contract ¶8. As an at-will e m

p lo y e e , C r a u s b y c ould not s ue the hospital directly f or wrongf ul

term ination except under very lim ited circum s t ances. S ee Jones v. Fluor D a n iel Servs. Corp. , 959 So. 2d 1044, 1046-47 (¶10) (Miss. 2007). She i nstead pursued the hospital on the theory t hat it was vicariously liable f or the actions of its adm inistrators in i nterf ering with her

em ploy m ent. ¶9. “One who intentionally and im properly interf

eres with the perf

orm ance o f a contract

. . . between another and a third person, by preventing the other f rom perf orm ing the contract

or causing his perf

orm a nce to be m ore expensive or burdensom e, is subject to liability to the other f or the pecuniary l oss r e sulting to him .” Levens v. C ampbell , 733 So. 2d 753, 760 (¶25) (Miss. 1 999) ( q u o t ing Restatem ent ( Second) o f Torts § 766A ( 1979)). This includes

4contracts of at-will em

ploy m ent. Id. a t (¶27). ¶10. C u rio u sly , th e j u ry f o u n d ag ain st C rau sb y o n h er claim s o f to rtio u s in terf

eren ce b y D r . H o rn an d o n h e r co n sp iracy claim s ag ain st t h e in d iv id u als, b u t f o r h er o n t h e v icario u s liab ility o f th e h o sp ital. T o th e ex ten t th at th is v erd ict w a s co n trad i cto r y , th at is n o t an issu e. S ee D .W. B o u tw ell B u ta n e C o
. v. S m ith , 2 4 4 S o . 2 d 1 1 , 1 2 (M i s s . 1 9 7 1 ) ( “Wh ere th e
emp l o y e e i s e x o n erated an d t h e m aster h eld liab le, t h e case w i ll n o t b e rev ersed f o r t h at

reaso n alo n e.”). ¶11. On appeal, the h ospital c ontends that it c annot be held liable f o r interf e ring with its

own contract because tortious interf erence ca n o c c u r only when the c ontract is “between

a n o t h e r a n d a third person.” Levens , 733 S o. 2d at 760 (¶25). The h ospital conc e d e s , however, that the issue of legal suf f iciency c an only be addressed by way of plain error, as this argum ent was not p resented t o the trial c ourt, and the instructions that allowed the jury

to f ind the hospital liable were either agreed or subm itted by the def endants them selves. This
Court “will generally only exercise our discretion to review and correct a clear o r o b v i o u s

error if it seriously a f

f ects the f a irness, integrity or public reputation o f 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 m arks om itted). ¶12. W e decline to address this argum ent. As to whether the error is plain, it i s true that Mississippi law d o es not allow an entity to be sued f or interf ering with its own contract. But

at least o ne court apply ing the sam e rule has held that a cause of action exists f or conspiracy

5to do so with a third party

. Blivas & Page I nc. v
. Klein , 282 N.E.2d 210, 214 (Ill. App. Ct. 1972) (“W hile it is t rue that a party cannot be s u ed in tort f or inducing the breach of his own contract, he can be sued f or conspiracy with a third person who h as induced him to breach his contract resulting in actual dam age.”). Furtherm ore, any error on this point was invited because the legal theory the hospital now challenges was presented to the j ury by agreem ent; in f a c t, t he v icarious liability instruction was subm i tted by the def e ndants. The def

endants also subm itted the f

o r m o f the v erdict instruction, which a l so allowed the jury to f ind the hospital v i cariously liable. S ince the hospital s ubm itted these instructions, “any error . . . is of [ its] own m a king.” Ill. Cent. R.R. v. Y oung , 1 20 So. 3d 992, 1004 (¶29) (Miss. Ct. App. 2012). The issue is waived f or consideration on appeal. Id. ¶13. W e conclude t hat any error in allowing the h ospital to be f ound vicariously liable was invited, and we decline to address this issue as plain error. ¶14. On the other hand, the issue of the suf f i ciency of the evidence supporting the verdict

rem ains squ a r e l y b ef

ore us. Crausby alleges that the proof showed t hat t he hospital adm inistrators knew that Dr. Horn’s com plaints did not warrant f

i ring her under their own standards, but t hey c y

nically decided Dr. Horn w as w o rth m ore to the hospital than Crausby ,

so they f orced her out to placate him

. Granted, the evidence was suf f icient to prove that; but

even if we accept Crausby ’s theory of the case, at best it shows a cquiescence to Dr. Horn’s dem ands. W a s this an agreem ent to tortiously interf ere with her em

ploy m ent? ¶15. W e conclude that it was not. A civil conspiracy requires a “m eeting of the m inds on

6the object or course of action.” Braddock Law Firm PLLC v. Becnel , 139 So. 3d 722, 726 ( ¶18) (Miss. Ct. App. 2013). There m ust not o nly be an agreem ent, but an agreeme n t “ t o

accom plish an unlawf

ul purpose o r to accom

plish a lawf

ul purpose unlawf

ully .” G allagher
Bassett S ervs. Inc. v. Jeffcoat , 887 So. 2d 777, 7 86 (¶37) (Miss. 2004). Acquiescing to Dr. Horn’s d em and that Crausby b e f ired does n ot constitute an agreem ent to tortiously interf ere with her e m

p loy m ent; t ortious interf

erence requires that the acts be done “with the unlawf ul
purpose o f causing dam age and loss, without right or justif iable cause.” Collins v. Collins , 625 S o. 2d 786, 790 (Miss. 1993). However cy nical it m ight be, agreeing t o f ire Crausby f

or the hospital’s econom ic advantage does not satisf y that elem ent of

tortious interf

erence. ¶16. W e conclude that the evidence f ailed t o s upport the jury verdict, and so we reverse and render the award of dam ages f or conspiracy

. 2. Slander Per Se ¶17. Finally , Dr. H orn challenges the jury ’s f inding that he s landered Crausby by m aking various f alse alle g a t i o n s about h er. H e contends that the jury verdict was a g ainst the overwhelm ing weight of the evidence. In reviewing t his challenge, this Court asks whether the trial court a

bused its discretion in d eny ing t he m otion f or a new t rial. B ob b

y Kitchens
Inc. v
. Miss. Ins. Guar. Ass’n , 560 So. 2d 129, 132 (Miss. 1989). W e view all the evidence in the l ight m ost consistent with the jury verdict. Motorola Commc’ns & Elecs. Inc. v. W ilkerson , 555 So. 2d 713, 723 (Miss. 1989). ¶18. Cra u s b y ’ s p r o o f a t t r i a l showed that Dr. Horn f alsely accused her o f m aking an

7unprof

essional rem ark f

ollowing the death o f a p atient and of ref using to f

o llow his instruction to get the d osage h i story of a patient. D r. Horn accepts that t he jury , a s the f inder of f a ct, was entitled t o f

ind that his statem ents were f alse; but h e a rgues that the statem ents

were p rotected by a qualif ied privilege because of the context i n w hich they were m ade – i.e., regarding the f

unctioning of the em ergency room where Dr. Horn som etim es practiced. Dr.
Horn a rgues that the overwhelm ing weight of the evidence showed that the com m e nts were

m ade f or the betterm ent of the hospital a nd were said out of a good f aith, if m istaken, belief in their truthf

u lness. ¶19. In Barm a d

a v
. P r i d j i a n , 9 8 9 S o. 2d 359, 362 (¶9) (Miss. 2008) (citations and quotation m arks om itted), the Mississippi Suprem e Court laid out the l aw regarding qualif ied privilege:
W h en analy

z ing def am ation claim s, Mississippi courts em ploy a b if u r c a t ed process. First, the Court m ust d e t e r m i ne whether the occasion calls f or a qualif ied privilege. If a qualif ied p rivilege does exist, the Court m ust t h en det e r m ine w hether the privilege is overcom e by m alice, bad f aith, or abuse. This Court h as d ef

ined qualif

ied privilege a s a com m

unication m ade in good f aith and on a subject m atter i n which the person m aking it has an interest, or in ref erence t o which he has a duty , is privileged if m ade to a person or persons having a corresponding interest or duty , even though it c ontains m atter which without this privilege would be slanderous . . . .
W e agree that the statem ents, m ade by a doctor practicing in the em ergency room , about an

em ergency room nurse, directed only to the adm inistrators of t he h ospital, were subject to the qualif ied privilege. B ut t here i s still the q uestion of whether the privilege was overcom e by

m alice, bad f

aith, or abuse.

8¶20. Statem ents subject t o the qualif ied privilege are presum ed to h ave been m ade in good
f aith. Id. at 364 (¶17). To overcom e the presum ption, the statem e n ts m

ust have been m ade with actual m alice. Id. Actual m alice m eans that “at the tim e the com m ents were published, the speaker either knew t hem to be f alse o r m a de them i n reckless d isregard of their truth.” Smith v. W

hite , 799 So. 2d 83, 87 (¶9) (Miss. 2001). ¶21. In both c a s e s , D r . H o r n c l a im ed to have personally witnessed Crausby say or do

som ething that she testif

i ed u n equivocally did not h appen. T he jury was entitled t o believe Crausby – “[ w]hen evidence is conf licting, we def

er to the jury ’s determ ination of the credibility of witnesses and the weight of their testim ony .” Banks ex r el. Banks v. SherwinW illiams Co. , 134 So. 3d 706, 711 (¶13) (Miss. 2014). ¶22. Dr. Horn hangs his hat o n Crausby ’s adm i s s i o n , f r o m t he stand as she was being

cross-exam ined, t hat Dr. Horn m a y have sincerely but erroneously believed she had ref used his instructions t o adm i nister a drug. The sincerity of Dr. Horn’s belief , however, is not the issue; o ne can honestly believe som ething and still say it in reckless disregard of i ts truth or f alsity

. D r. H orn a lso c laim s that Crausby adm i tted the sam e about his other c laim s, but the record does not bear that out. 3 ¶23. Dr. H o r n n e x t r e lies on the occasional statem ent in Mississippi c aselaw that actual

3 T h e p articu lar q u estio n C rau sb y an sw ered in th e af f irm ativ e w as co m

p o u n d : “A n d th ese o th er co m

p lain ts, I k n o w y o u ex p lain ed th at y o u co m p letely d isag reed w ith h is v ersio n o f ev en ts. I u n d erstan d th at; b u t d o y o u u n d erstan d th at f o r w h a t e v e r reaso n , rig h tly o r w r o n g ly , th at w as h is p ercep tio n ; th at h e f e l t d isresp ected ? ” 9m alice “denotes ill will, a sentim ent of hate or s pite, especially when harbored by one person

towards another, exists when one with a sedate, deliberate m ind and f orm ed design injures another, as where the person i s actuated b y ill will in what he does and say s , with the design

to willf ully or wantonly injure a n o t h e r.” Barmada , 989 So. 2d at 364 (¶17) (citation

om itted). Dr. H orn argues that, if he held a sincere desire to protect h is p atients and ensure that the em ergency room f unctioned sm oothly , which no o ne denie s ; and if he believed

rem oving Crausby w ould f urther those g oals, he cannot be f ound to h ave m ade the statem ents with the requisit e i l l will. W e disagree – Dr. Horn could have held both m otives sim ultaneously , and t here was m ore than suf f icient evidence f

or a j ury to have f

ound that he

was m otivated by ill will toward Crausby

. It is true that the f a ct that Dr. Horn was a ngry and intem p erate, even enraged, while dem anding that Crausby be f i red m ay not be enough to f ind

m alice, in and of itself

. Barmada , 989 So. 2d at 365 (¶21). But when paired with the f act that Dr. Horn claim ed to h ave personally w itnessed things that did not happen, it was suf f i cient f or the jury

to inf er m alice. “[ I]ntent, being a state of m ind, is rarely susceptible of direct p roof

, but o rdinarily m

ust be i nf erred f rom the acts and conduct of the party and the
f acts and circum stances attending them .” Jones v. State , 920 So. 2d 465, 4 72 (¶17) (Miss. 2006). ¶24. Having reviewed the record, we conclude that the jury ’s f inding th a t D r . H o r n had

com m itted slander per se is not against the overwhelm ing weight of the evidence. ¶25. THE JUDGMENT OF THE CIRCUIT COURT O F CHICKASAW COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED I N PART. ALL
1 0COSTS OF THIS APPEAL ARE ASSESSED E Q U A LLY BETWEEN THE

APPELLANT, DR. VICTOR HORN, AND THE APPELLEE. LEE, C.J., G RIFFIS, P.J., BARNES, ISHEE , ROBERTS, CARLTON AND MAX W ELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P. J . , DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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