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United States Court of Appeals,

Fifth Circuit.

No. 95-60335

Summary Calendar.

Kay J. BURROUGHS, Plaintiff-Appellee,

v.

FFP OPERATING PARTNERS, L.P., Defendant-Appellant.

Dec. 4, 1995.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before KING, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This case returns to us following our remand to the district

court for determination of the apportionment of damages. The sole

issue in this appeal is whether the district court properly

followed our mandate on remand. Concluding that it has, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The complete history of this controversy is contained in our

opinion in the first appeal making only a brief recap necessary

here. See Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543

(5th Cir.1994). Appellee Kay Burroughs sued appellant FFP

Operating Partners, L.P. ("FFP"), inter alia, for intentional

infliction of emotional distress ("i.i.e.d.") and slander stemming

from her employment termination. A jury found for Burroughs on

both causes of action and awarded $250,000 in compensatory damages;

the jury denied punitive damages. FFP appealed the district

court's denial of a motion for judgment as a matter of law.
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On appeal, we held as a matter of law that Burroughs's

emotional injuries were not severe enough to meet the standard for

intentional infliction of emotion distress under Mississippi law.

Therefore, we reversed the jury verdict on that claim. 28 F.3d at

549. As for the slander count, FFP only challenged the falsity

element. Following a review of the evidence presented at trial, we

affirmed the jury's verdict on the slander claim because we were

unable to say that no reasonable juror could have found for

Burroughs. Id. at 550. Our mandate was explicit:

The judgment is REVERSED on the i.i.e.d. claim, and j.m.l. is

hereby granted in favor of FFP. The judgment is AFFIRMED on

the slander claim, and the case is REMANDED for determination

of the apportionment of the $250,000 jury verdict.

Id.

Faced with our mandate, the district court apportioned the

entire damage award to the slander claim. It based this decision

on the fact that under Mississippi law, the elements of

compensatory damages for intentional infliction of emotional

distress are subsumed into the elements of damages for slander.

Since all of Burroughs's evidence would have been admissible to

support the slander claim, the court apportioned 100% of the

damages awarded by the jury to that claim. FFP now appeals

contending the district court misunderstood our mandate.

DISCUSSION

The scope of our review in this appeal is limited. On a

second appeal following remand, the only issue for consideration is

whether the court below reached its final decree in due pursuance

of our previous opinion and mandate. Mobil Oil Corp. v. Department
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of Energy, 647 F.2d 142, 145 (Temp.Emerg.Ct.App.1981). We may, of

course, consult our prior opinion to ascertain what was in

controversy and what was intended by our opinion and mandate. Id.

However, this Court will not reconsider issues decided by the prior

panel. Id. Accordingly, in reviewing this appeal, our prior

holding affirming the slander claim is the law of the case and will

not be disturbed by this Court. See Willy v. Coastal Corp., 915

F.2d 965, 968 (5th Cir.1990), aff'd, 503 U.S. 131, 112 S.Ct. 1076,

117 L.Ed.2d 280 (1992).

The present controversy stems from our mandate regarding the

damage award. The jury answered a unified instruction on

compensatory damages. The instruction described the appropriate

categories of damages available including "mental pain and mental

anguish, including humiliation, embarrassment and loss of

reputation." The jury was not instructed to allocate damages for

each of the counts alleged in Burroughs's complaint. This

instruction was not objected to by FFP at trial or in the first

appeal.

Because we sustained the slander claim, but reversed the

intentional infliction of emotion distress claim, we found it

necessary to remand the damage issue to the district court to

allocate damages. We did not order a new trial on damages. Nor

did we hold that the evidence was insufficient, as a matter of law,

to support a claim for damages for slander. Our allocation

instruction directed the district court to determine, based upon

the record developed at trial, what part of the total damage award
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is properly attributable to the intentional infliction of emotional

distress claim, and what part is attributable to the slander claim.

This is precisely what the district court did.

In its order following remand, the district court explained

its approach to our mandate. The court first determined what

evidence of damages was admissible solely with regard to the

intentional infliction of emotional distress claim. The court

correctly concluded that there was no evidence of damages that was

admissible only under the i.i.e.d. claim. Since all evidence of

damages was properly before the jury on the slander claim, the

court concluded that the entire damage award of $250,000 could be

attributable to the slander claim; the court so ordered. Under

the circumstances, we do not find this approach inconsistent with

our mandate.

At the outset, it is important to note the differences

between the two underlying tort claims. To support an i.i.e.d.

claim, a plaintiff must show severe emotional distress.

Restatement (Second) of Torts § 46(1) (1965) ("One who by extreme

and outrageous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for such

emotional distress....") (emphasis added); see Lyons v. Zale

Jewelry Co., 246 Miss. 139, 150 So.2d 154, 158 (1963) (citing

section 46 of the Restatement of Torts). Because of the fear of

fictitious or trivial claims, distrust of the proof offered, and

the difficulty of setting satisfactory boundaries of liability,

severity is an element of i.i.e.d. See Restatement (Second) of
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Torts § 46, cmts. b, j. Only the most extreme emotional injuries

yield liability. Id. § 46, cmt. j. As we reasoned in the first

appeal, the evidence adduced at trial simply did not rise to the

level of severity required for the independent tort of intentional

infliction of emotional distress.

That does not mean, however, that Burroughs's emotional

injuries are uncompensable. While intentional infliction of

emotional distress requires severe emotional injuries, the same

level of severity is not required when the compensable emotional

injuries stem from another independent tortious act. See Lyons,

150 So.2d at 157 ("It is clear, however that from the very earliest

times, the law has allowed recovery for mental distress under some

circumstances, where the act of defendant producing such distress

also involved an independent tort of some kind, such as ... injury

to reputation...."). In this case, we affirmed the jury's verdict

on an independent tort of slander. This issue is not subject to

further review. Unlike i.i.e.d., slander does not require severe

emotional injuries before compensation is allowed. Appropriate

damages for slander include impairment of reputation, personal

humiliation, mental anguish and suffering. Brewer v. Memphis

Publishing Co., 626 F.2d 1238, 1246 (5th Cir.1980), cert. denied,

452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981); see E.E.O.C.

v. Southern Publishing Co., 705 F.Supp. 1213, 1219 (S.D.Miss.1988)

("The damages recoverable [for defamation] are for injury to

reputation, though the damages may also include as an additional

element emotional or mental harm."), aff'd, 894 F.2d 785 (5th
 

1FFP cites Garziano v. E.I. Du Pont De Nemours & Co, 818

F.2d 380, 395 (5th Cir.1987), for this proposition. In Garziano,

we said that "[t]he law of Mississippi requires "not the

knowledge of the plaintiff nor the injury to his feelings but the

degrading of reputation' for recovery." 818 F.2d at 395. This

statement, however, was not intended to define or limit the

elements of damages for a slander claim. It does not dilute

Brewer, E.E.O.C., and the Restatement which make clear that if

there is a finding of slander, emotional injuries are

compensable. 

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Cir.1990); Restatement (Second) of Torts § 623 ("One who is liable

to another for a libel or slander is liable also for emotional

distress and bodily harm that is proved to have been caused by the

defamatory publication."). We have found no authority indicating

under Mississippi law that only severe emotional injuries are

compensable on a slander claim.

FFP contends in this appeal that Burroughs is only entitled to

those damages stemming from injury to her reputation.1

Consequently, FFP reiterates that since there is little record

evidence of damage to Burroughs's reputation, the district court

should have allocated a small amount of damages to this claim. As

the above authority makes clear, this is not the case. Burroughs

is entitled to compensation for her emotional injuries as well.

While the evidence of emotional injuries does not rise to the level

of severity to support an independent tort of intentional

infliction of emotional distress, these injuries are compensable as

damages for her slander claim.

The district court examined the record and found all the

evidence of damages admitted at trial properly applied to the

slander claim. In essence, the district court looked at the case
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as if it had been tried solely on a slander claim and concluded

that the evidence could support the jury's damage award. We will

not disturb this conclusion on appeal. The jury was properly

instructed on the elements of compensable damages for slander. No

objection to the instruction was made. The jury returned a verdict

for $250,000 on the basis of evidence that is all applicable to the

slander claim. FFP did not argue in its first appeal that there

was insufficient evidence to support the jury's verdict on the

slander claim. Furthermore, we specifically affirmed the jury's

verdict on slander. The only question that remained was whether

the evidence adduced at trial reflected that some of Burroughs's

damages were only related to the i.i.e.d. claim. The district

court concluded that there was none. No error was occasioned by

such conclusion.

CONCLUSION

Satisfied that district court properly applied our mandate,

the judgment is AFFIRMED.