IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-CA-01382-SCT

CONDERE CORPORATION d/b/a FIDELITY TIRE

AND MANUFACTURING COMPANY

 

v.

JERRY MOON, SYLVIA MOON AND THOMAS

YOUNG

DATE OF JUDGMENT: 8/1/2001

TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.

COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: PEYTON S. IRBY

WENDY MOORE SHELTON

JEFFREY K. TYRE

ATTORNEYS FOR APPELLEES: WILLIAM J. LITTLE, JR.

JACK HARANG

STUART H. SMITH

NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL

INJURY & PROPERTY DAMAGE

DISPOSITION: REVERSED AND RENDERED - 07/01/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1. At issue in this case is whether Condere Corporation (Condere) was properly found liable for

maliciously prosecuting Jerry Moon, Sylvia Moon (hereinafter collectively “the Moons”), and Thomas

Young (Young). Condere sued the Moons and Young in federal court for defamatory remarks made

regarding Condere’s business. The federal court dismissed the suit, finding that Condere was a vortex

public figure and had not proved the Moons and/or Young knew their statements were false.
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¶2. Thereafter, the Moons and Young sued Condere in Adams County Circuit Court for malicious

prosecution, abuse of process, and intentional infliction of emotional distress. Condere moved for summary

judgment, which the trial court granted. On appeal, this Court reversed and remanded the summary

judgment as to the plaintiffs’ malicious prosecution claims and affirmed summary judgment on the abuse

of process claims. Moon v. Condere Corp., 690 So.2d 1191 (Miss. 1997) (Moon I).

¶3. Following trial, a jury found for the plaintiffs on their malicious prosecution claims and awarded

$250,000 in compensatory damages and $100,000 in punitive damages to each plaintiff. The trial judge

awarded an additional $25,000 in fees and costs to each plaintiff.

¶4. Aggrieved by the trial court’s judgment, Condere appeals, assigning the following errors: the trial

court’s (1) refusal to admit the federal court’s opinion into evidence and (2) allowing testimony regarding

Moon’s unemployment; as well as (3) the prejudicial closing argument of plaintiffs’ attorney; (4) the jury’s

verdict being against the weight of the evidence; (5 ) the trial court’s failure to remit damages for emotional

distress and (6) an improper punitive damages instruction. Based on the record before us, we reverse and

render in Condere’s favor because the element of malice, necessary to find malicious prosecution, was not

proven. (Given this disposition, we need not address the other issues.)

FACTS

¶5. In the summer of 1986, it was announced that Armstrong Tire Company would close its Natchez

plant. Condere, a Delaware corporation organized by former management employees of Armstrong Tire,

purchased the Natchez plant effective March 17, 1989, and began manufacturing tires under the name of

Fidelity Tire Manufacturing Company (Fidelity), a division of Condere. When Fidelity began operations,

it hired some of the former Armstrong employees, while not hiring others. Jerry Moon and Thomas Young
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were among the employees who were not rehired.

¶6. Condere applied for a ten-year tax exempt status. One requirement for the exemption was that

the applicant had to be a "new business" in Mississippi. On July 5, 1988, at a hearing convened for the

purpose of considering Condere's request, Jerry and Sylvia Moon appeared and made statements alleging,

inter alia, that Condere was not a new business. These statements were broadcast by KNOE-TV

(Channel 8) in Monroe, Louisiana, and seen by viewers in Mississippi.

¶7. On July 14, 1988, acting on behalf of Condere, Scott Kern wrote the Moons informing them that

their statements were false and asked that they make retractions. Kern was told to contact the Moons'

attorney William Guy. On August 17, 1988, Kern wrote Guy explaining the corporate structure of

Condere and requested that the Moons retract their statements. He also stated that “[i]f a correction has

not been publicly made by next Thursday, August 25, 1988, I will instruct our counsel to file suit in the

Federal District Court in Vicksburg the following day.” No retraction was made, and Condere filed a

slander suit against the Moons on August 26, 1988.

¶8. About four months later, Thomas Young sent a letter to the editor of a local Natchez newspaper

which included the allegations that Condere was still linked to Armstrong and added that “Fidelity Tire

Company has accepted federal money to 'train' men to do jobs they have had for years!” On November

18, 1988, Kern wrote a letter to Young demanding a retraction. Young issued no such retraction, and

Condere filed suit for defamation on December 1, 1988 in the United States District Court for the Southern

District of Mississippi, Western Division.

¶9. On October 11, 1989, the federal district court found that Condere Corporation was a vortex

public figure. The court further held that Condere had failed to prove that the Moons or Young "knew that
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their statements were false or entertained any doubt as to their truth whatsoever." Additionally, the court

stated that "the record is devoid of any evidence of actual injury suffered by Condere." The case was

dismissed on a summary judgment motion filed by the defendants.

¶10. On August 25, 1989, and November 29, 1989, respectively, the Moons and Young filed suits

against Condere in the Adams County Circuit Court, for malicious prosecution, abuse of process, and

intentional infliction of emotional distress. The suits were later consolidated. The circuit court found that

Condere did have probable cause based on the fact that the United States District Court found elements

of a defamation action. The circuit court also held that there was no basis for the plaintiffs' claims of abuse

of process and intentional infliction of emotional distress. From this ruling, the Moons and Thomas Young

appealed to this Court.

¶11. On March 28, 1997, this Court reversed and remanded the summary judgment on plaintiffs’

malicious prosecution claims and affirmed summary judgment on plaintiffs’ abuse of process claims. Moon

I, 690 So.2d 1191 (Miss. 1997). Following a trial on March 22-23, 2001, a jury found for plaintiffs on

their malicious prosecution claims and awarded $250,000 in compensatory damages and $100,000 in

punitive damages to each of the three plaintiffs. On May 2, 2001, the circuit court entered judgment on

the jury verdict. On May 10, 2001, Condere filed an Alternative Motion for Judgment Notwithstanding

the Verdict or for a New Trial or to Alter or Amend Judgment or for Remittitur. On August 1, 2001, the

court denied Condere’s post-trial motion and entered an amended judgment which also awarded $25,000

in fees and costs to each plaintiff.

STANDARD OF REVIEW

¶12. In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict under Miss.
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R. Civ. P. 50 (b), this Court:

must look at all of the evidence--not just that which supports the Appellees' case--in the

light most favorable to Appellees, [the Moons and Young]. The credible evidence tending

to support the Appellees' case must be taken as true. Appellees must be given the benefit

of all favorable inferences that may reasonably be drawn from the evidence. Evidence

favorable to the Appellants must be disregarded if it is contradicted or its credibility is

otherwise called into question. If the facts and inferences, so considered, point so

overwhelmingly in favor of the Appellants that reasonable persons could not have arrived

at a contrary verdict, we must reverse. On the other hand, if there is substantial evidence

supporting the verdict, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the jury

verdict and the judgment entered thereon must be allowed to stand, and we, accordingly,

have no authority to interfere.

These principles have been stated in cases too numerous to cite. We have enforced them

in malicious prosecution cases the same as in any other context where an appellant

challenges a jury verdict in a civil action.

Strong v. Nicholson, 580 So.2d 1288, 1292 (Miss. 1991) (citations omitted). By the same token, this

Court may overturn a jury verdict if it is against the overwhelming weight of the evidence, or if damages are

excessive or inadequate because either the jury was influenced by passion, prejudice or bias, so as to shock

the conscience. Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 76 (Miss. 1996).

ANALYSIS

¶13. The elements of the tort of malicious prosecution are:

(1) The institution of a proceeding

(2) by, or at the insistence of the defendant

(3) the termination of such proceedings in the plaintiff's favor

(4) malice in instituting the proceedings

(5) want of probable cause for the proceedings
1

 See Moon I, 690 So. 2d 1191, 1195-96 (Miss. 1997).

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(6) the suffering of injury or damage as a result of the prosecution.

McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973 (Miss. 2001). All six of these elements

must be proven by a preponderance of the evidence. Van v. Grand Casinos of Mississippi, Inc.,

724 So.2d 889, 891 (Miss. 1998).

¶14. Condere argues that the jury's verdict was against the weight of the evidence and supported by

insufficient evidence, specifically asserting that the Moons and Long “presented no reason for the jury to

believe Condere lacked probable cause or acted maliciously when filing the underlying defamation action,”

citing McClinton and Robb v. United States Fid. & Guar. Co., 798 F.2d 788 (5th Cir. 1986).

¶15. The first three elements necessary to prove malicious prosecution were not in dispute in this case.

Condere filed a civil suit against the Moons alleging slander, and a separate suit against Thomas Young

alleging defamation. The United States District Court for the Southern District of Mississippi found, in its

memorandum opinion and order, that Condere was a vortex public figure and its “activities were the subject

of fair comment,”1 and dismissed both lawsuits with prejudice on the Moons’ and Young’s motions for

summary judgment.

¶16. InMoon I, 690 So.2d at 1196, this Court found that "a fair minded jury might conclude that [the

defamation suits were] brought without probable cause." In other words, summary judgment was improper

because a jury question was presented on the issue of probable cause. After review of the record, we find

that the jury's finding in favor of the plaintiffs on the probable cause issue was not against the weight of the

evidence. The plaintiffs produced the testimony of Dennis Terwilliger, president of Condere, who made
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the decision to file the defamation suits without any knowledge of the term vortex public figure, or the

consequences of its possible application. Under the circumstances the jury could find that Condere did not

have a reasonable belief of a good chance of success, but that is not the ultimate issue.

¶17. The failure to establish the element of malice is what defeats the plaintiffs’ claims. As to that

element, this Court has stated:

Malice does not refer to mean or evil intent, as a layman might ordinarily think. Rather,

malice in the law of malicious prosecution is a term used in an artificial and legal sense. It

connotes a prosecution instituted primarily for a purpose other than that of bringing an

offender to justice. Benjamin v. Hooper Electronic Supply Co., 568 So.2d at 1191;

Royal Oil Co., Inc. v. Wells, 500 So.2d at 444; Owens v. Kroger Co., 430 So.2d

at 847; State Life Insurance Co. of Indianapolis v. Hardy, 189 Miss. 266, 277,

195 So. 708, 713 (1940). As such, it refers to the defendant's objective, not his attitude.

Malice may be and usually is shown by circumstantial evidence. The jury may infer malice

from the facts of the case. Benjamin, 568 So.2d at 1191; Royal Oil, 500 So.2d at

444; Owens, 430 So.2d at 847. Malice may be inferred as well from the fact that a

defendant may have acted with reckless disregard for the plaintiff's rights. Benjamin, 568

So.2d at 1191.

Strong v. Nicholson, 580 So.2d at 1293.

¶18. Although in Owens v. Kroger Co, 430 So. 2d 843, 848 (Miss. 1983), this Court acknowledged

the general rule that malice is a jury question, we also stated that “[u]nlike probable cause, the question of

malice is to be determined by the jury unless only one conclusion may reasonably be drawn

from the evidence.” (emphasis added) (citing Brown v. Watkins, 213 Miss. 365, 56 So.2d 888

(1952)).

¶19. The Moons and Young argue that because Condere was not primarily interested in damages, but

rather in a retraction of the statements made by the Moons and Young, it acted with malice, because the
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 The terms defamation, libel, and slander have been used somewhat loosely and interchangeably

in this case since its inception, although that would not make a difference in the result which we reach today.

Defamation is defined as “[t]he act of harming the reputation of another by making a false statement to a

third person.” Black’s Law Dictionary 427 (7th ed. 1999). “Libel is written or visual defamation; slander

is oral or aural defamation. Robert D. Sack & Sandra S. Baron, Libel, Slander, and Related

Problems § 2.3, at 67 (2d e. 1994) Id. at 927.

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only proper purpose of a defamation2 suit is damages. In other words, Condere should be punished

because its real intention was clearing its name instead of financially damaging the Appellees. "The

gravamen of action for libel is . . . degrading of reputation." Forman v. Miss. Publishers Corp., 195

Miss. 90, 14 So.2d 344 (1943). Condere used available civil law remedies to attempt to show that others

were making false and damaging statements against it. This is not an improper objective. See also

McClinton, 792 So.2d at 974 (shortages in inventory was reasonable concern for any business and did

not amount to malice where it was basis for investigation and prosecution of Appellant).

¶20. Reviewing all the evidence in the light most favorable to the Moons and Young, as we must on a

motion for JNOV, we find that reasonable persons could not have found that Condere acted with malice

in this case. The circuit court's judgment against Condere is reversed, and judgment is rendered in favor

of Condere.

CONCLUSION

¶21. In 1988 the Moons and Youngs set in motion a series of statements and acts which resulted in

sixteen years of litigation. This Court, on a deeply divided vote in Moon I, provided them the opportunity

to present their case to the Adams County Circuit Court jury which returned a verdict in their favor.

Although the trial court denied Condere’s motion for judgment notwithstanding the verdict, this Court, after

reviewing all the evidence in the record regarding the question of malice, determines that only one
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conclusion may reasonably be drawn from the evidence. It is so overwhelmingly in favor of Condere that

reasonable persons could not have arrived at a contrary verdict. Thus, the judgment of the Adams County

Circuit Court is reversed, and judgment is rendered in favor of the Condere Corporation.

¶22. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.

EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

DIAZ AND RANDOPH, JJ., NOT PARTICIPATING.