IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-01272-SCT JACK PARSONS AND PARSONS LAW FIRM

v. V ERNON WALTERS AND DONY ELL WALTERS

DATE OF JUDGMENT: 08/28/2018 TRIAL JUDGE: HON. CHARLES W . W R IGHT, JR. TRIAL COURT ATTORNEYS: ROBIN L. ROBERTS JAMES A. W ILLIAMS COURT FROM W HICH APPEALED: ATTORNEY FOR APPELLANTS: LAUDERDALE COUNTY CIRCUIT COURT W I LLIAM T. MAY ATTORNEYS FOR APPELLEES: ROBIN L. ROBERTS CHRISTOPHER D. NOBLES NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: DISMISSED AS MOOT - 06/18/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., COLEMAN AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. Vernon W alters was i n j u r e d i n a w o r k

- r e l ated incident in October 2006. Af ter receiving workers’ co mp e n s a t i o n benef its, he and his wif

e , Dony ell W alters, f

iled a thirdparty c l a i m a g a inst the com pany operating the train involved in the collision, Kansas City Southern Railway Com

pany (KCSR). The W alterses h ired the Parsons Law Firm to represent them

in their suit, and Tadd Parsons took on the case.¶2. The W alterses’ lawsuit against KCSR was ultim ately dismi s s e d w i t h p r e judice in Septem ber 2010 f

or, am ong other reasons, f ailure to prosecute, f

ailure to com

ply with discovery obligations and f raud u pon the court. T add never told the W alterses that their case had been dism issed and l e d t h e m t o believe their case was o ngoing. T hree y ears af ter the

case had been dism i ssed, Tadd adm itted that he f abricated a settlem ent of

f er f rom KCSR in the am ount of $ 1 04,000 a nd a dvised the W a l terses to accept the of f er, w hich they did. W hen eight m onths passed a f

ter Tadd inf

orm ed the W alterses about the f a bricated settlem ent, the
W a lterses dem anded to m eet with Jack Parsons, the other general partner at the Parsons Law Firm

. J a c k o f

f e red the W alterses $50,000 to settle any claim s they m ay have had against Tadd based on his conduct in r e presenting them in the KCSR lawsuit. The W alterses ref used Jack’s of f er and then f

iled a claim a g a i n s t Tadd, Jack a nd the Parsons Law Firm , alleging claim s of f

raud, def am ation, negligent representation, negligent and intentional i nf liction of

em otional distress and punitive dam ages. ¶3. The trial court granted partial sum m ary judgm ent f or the W alterses on the m atter of liability , f inding that Tadd and t he Parsons L aw Firm were liabl e f o r f raud a n d i ntentional inf liction of em otional distress. The court then held a jury trial on dam ages. ¶4. The jury verdict awarded the W alterses $2,850,002 in com p ensatory d am ages, which exceeded what the W alterses had d em a nded in com pensatory dam ages in t heir com plaint and in their m otion to set dam ages. Accordingly , the trial court h e l d t h a t t h e jury ’s verdict shocked the conscience and that a rem ittitur should b e entered to rem edy the issue. The trial

2court rem itted the dam ages awarded to the W alterses to $1,034,666.67 in a s e cond am ended

f inal judgm ent. Parsons appealed to this Court, and the W alterses then cross-appealed.

FACTS AND PROCEDURAL HISTORY ¶5. On October 10, 2006, Vernon W alters was injured w hile c arry ing out the duties of his job with Powell Transportation Com pany when the vehicle he was driving was struck by an

oncom ing train operated by Kansas City Southern R ailway Com pany (KCSR). Vernon f

iled

a workers’-com

pensation c laim against his e m ploy e r , w h i c h ultim ately r esulted in a settlem ent in V ernon’s f avor. As a result of the w orkers’-com pensation case, Vernon received a lum

p-sum am ount of

$195,471.66 in workers’-com pensation benef

its. ¶6. In addition to the workers’-com pensation claim , V ernon and his wif e Dony ell W alters f iled a t hird-party negligence claim against KCSR r elated to the railroad-crossing incident. The settlem ent Vernon received in the w o r k e r s ’-com p ensation claim would act as a lien against any recovery Vernon r ecovered f rom his s uit against KCSR. The W a l t e r ses hired Tadd Parsons, a general partner at the Parsons Law Firm , to repr e s e n t t hem in their negligence claim against KCSR. The case was rem o ved t o the U nited States D istrict Court f or t he Southern District of Mississippi on N ovem ber 18, 2009. The W alterses’ case against KCSR was ultim ately dism issed with prejudice on Septem ber 24, 2 010, f

ollowing KCSR’s

m otions to dism iss f

or f raud on the court and f

or f ailure to com

p ly with d iscovery orders. During Vernon’s d eposition f or the f ederal lawsuit, Vernon t estif ied under oath that he had

not suf f ered f rom a ny hearing loss bef ore the train/truck c o l lision, but KCSR produced evidence showing t hat V ernon had been deaf in his right ear since i nf ancy . I n its dism issal

3order, the f

ederal court stated that Vernon’s f alse deposition testim ony and Tadd’s f ailure to

com ply with d iscovery obligations and f ailure to prosecute V ernon ’s claim warranted dism issal with prejudice. ¶7. Tadd did not inf

orm t he W a lterses that their case h ad been dism issed with prejudice.
For the next two and half y ears, Tadd led the W alterses to believe that t heir s u it against KCSR was proceeding in f ederal court. Af

ter n early three y ears of the W a lterses’ m aking repeated status inquiries to Tadd about their suit, Tadd told t he W alterses that KCSR had

m ade t hem a settlem ent of f er i n the am ount o f $88,000 on behalf of Vernon W alters and an additional $16,000 on behalf of Dony ell W alters, bringing t he settlem ent of f er to a total of $104,000. Tadd then told the W alterses that i f they a ccepted the settlem ent of f er, t hey would receive $53,100 af

ter attorney s’ f

ees and exp enses were deducted. Tadd advised the
W a lterses to a ccept the settlem ent of f e r, and they did a s he advised. I t i s undisputed that Tadd com pletely f abricated this purported settlem e nt of f er. ¶8. Af ter about ei g h t m o n t h s o f i n quiring about their s ettlem ent of f e r, t he W alterses sought a m eeting with Jack Parsons, Tadd’s f ather a nd the other general partner of the
Parsons Law Firm

. During this m eeting, Jack of f ered the W a lterses $50,000 as a settlem ent of an y c l a i ms a g a i n st Tadd. Jack adm itted to the W alterses that he w as not sure if the workers’-com

pensation p ay

m ent would still act as a lien on this settlem ent he was of f ering them since the m oney w ould b e com ing f rom him a nd/or Tadd, individually , and not f rom KCSR. J ack told Vernon that he did intend to inf orm the work e r s ’

- c o m

pensation carrier about their com

prom ise and that t he f

unds would be com ing f

rom a third-party source and

4not f

rom KCSR. T he W alterses d id not accept Jack’s proposed settlem ent c om prom ise and sought independent legal counsel. ¶9. On October 25, 2013, the W alterses sued Tadd Parsons, Jack Parsons and the Parsons Law F irm , (collectively , Parsons) alleging cla i ms o f f raud, def

a m ation, negligent representation, negligent and intentional inf liction of em otional distress and punitive dam ages. In their com

plaint, the Wa l t e r s e s claim ed actual d am ages o f $105,000, which represented the am ount of Tadd’s f abricated settlem ent of

f er f rom KCSR; general dam ages of $145,000 f

o r “other torts/breach of contract” and an a dditional $ 5 mi l l i o n in punitive dam ages. ¶10. On Septem

ber 8 , 2 015, the W alt e r s e s mo v e d f o r s u mm ary j udgm ent, seeking a judgm ent as a m atter of

law as to liability

. Parsons responded to the W alterses’ m otion on October 29, 2015. On that s a m e day Parsons also f iled a joint m otion f

or sum m ary j udgm ent

as well as a s eparate m otion f or s um m ary judgm ent on behalf of Jack Parsons. O n Decem ber 11, 2015, in a m em orandum opinion and order, the C ircuit Court of Lauderdale County granted partial sum m ary judgm e nt f or the W alterses on the issue of liability f or f raud as to Tadd and t h e P a r s ons Law Firm only and f or intentional inf

liction of em otional distress (IIED). W hile the court did not g rant sum m ary judgm ent as to J ack’s individual liability f or f raud, f indin g t h a t t he f

a cts o f that issue rem ained disputed, the court did hold that as a g e neral partner in the Parsons Law Firm , Jack c o uld be j ointly and severally l iable f or t h e injury caused b y

his partner’s wrongf

ul conduct that was carried out in the ordinary course of business. The c ircuit court f ound that even though the W alterses had f a iled to present any

5evidence of actual dam ages d u e t o e motional distress, the outrageous nature of Tadd’s

conduct entitled the W alterses to nom inal dam ages at a m inim um . The c ircuit court added that the W alterses had the burden of proving additional com pensatory d am ages f

or em otional distress b ey ond nom inal dam ages. Other than a w a r ding t he W alterses nom inal dam ages f or

em otional distress and alerting them of their burden to establish their case f or com pensatory dam ages, the circuit court l ef t t he m atter of dam ages o pen, pending f urther proof of dam ages. ¶11. On June 9, 2016, the W a lterses f iled a m otion to se t d am ages, arguing that because it is im possible to determ ine w hat Vernon could have recovered i f his case against KCSR had been successf

ul, the a m ount of dam ages suf f ered as a result of Tadd’s f r aud and IIED could not be clearly

determ ined either. ¶12. The Parsons responded t o t he W alterses’ m otion to s et dam a g es on August 30, 2016, and a rgued that they were e ntitled to have a jury trial on dam ages. T h e p a r ties agreed in Septem ber 2017 to proceed with a jury trial on dam ages. ¶13. Bef

ore t rial, Tadd Parsons f

iled f or bankruptcy , a nd the circuit c ourt stay ed all causes of action against Tadd individually until the com

p letion of his bankruptcy

proceedings. ¶14. On June 1 9, 2018, the parties participated i n a p retrial conf e rence, and the circuit court issued a pretrial order on June 26, 2018. The pretrial o rder stated that the pleadings had been

a m ended to conf

orm to the pretrial order. Presum ably because t he W alterses’ m otion f or

sum m ary judgm en t w a s g r a n t e d as to t he liability f or f raud and IIED, all other claim s of liability were withdrawn without prejudice f or the purposes o f this trial so that the jury could

6f

ocus on dete r mi n i n g t he am ount of dam ages the W alterses should recover. The pretrial order stated that the f

ollowing claim s had been f iled: Fraud, negligent and intentional inf liction of em otional d istress, b a d f a ith punitive da ma g e s b ased on outrageous conduct, c l aim f or attorney s’ f

ees, costs, expenses, com

pensatory and consequential dam ages a g ainst Jack Parsons and the Parsons Law Of f ices (Tadd Parsons has f

iled bankruptcy ). The pretrial order also o u t l i n e d t he contested issues of f act f or the jury to determ ine as “[ a]m ount of dam ages and a ttorney s’ f ees. The [ c]ourt will determ ine a t t o r n e y s ’ f ees on

m otion f ollowing the verdict, a s necessary .” The contested issues of law were “[ e]ntitlem ent
to punitive dam ages. The [ c]ourt will bif urcate on the i ssue of punitive dam a g e s a nd determ ine af

ter the initial d eterm inat i on.” The p retrial order also n oted that there were no pending m otions in the case as of the trial date. ¶15. On June 28, 2018, t he W alterses f iled a m otion in lim ine seeking to exc l u d e f r om evidence “[ a]ny and all r ef erences to Vernon W alters [ sic] d eposition testim ony ” f rom the underly ing case. The W alterses argued that Vernon’s testim ony f ro m t h e lawsuit against KCSR should be inadm issible because “[ t]he cause o f action that gave rise to the deposition occurred over ten (10) y ears ago,” because testim ony regarding how Vernon was struck by

t he train and w hen a nd what ty pe of hearing loss he had were irrelevant under Miss i s s i p p i Rule of Evidence 401 and because Vernon’s d eposition testim ony ’s probative value would be substantially outweighed by a danger of unf air p rejudice, conf

using t h e i ssues or

m isl e a d i n g t h e jury

. The m otion in lim ine also s o ught to exclude docum e nts that were produced in response to r equests f or production of docum ents in the KCSR lawsuit, arguing that the d ocum ents would b e prejudicial. The c ircuit court granted the W alterses’ m otion in

7lim ine. Counsel f or the workers’-com

pensation carrier was served a cop y of the pretrial order, placing it on notice of a potential lien. ¶16. The jury trial took p lace on August 13, 2018, and August 14, 2018, and was lim ited

to dam ages. At t he tria l , V e r n o n , Dony ell, Tadd a nd Jack testif ied. The jury returned a verdict f or the W alterses. The jury verdict awarded Vernon W a l ters $2,500,000 i n dam ages f or f r aud, $100,000 f

o r em o t ional distress and $ 1 in nom inal d am ages f or IIED. It awarded Dony ell W alters $ 150,000 in dam ages f or f raud, $100,000 f

or em otional distress and $1 in

nom inal d am ages f

or IIED f or a com bined total of

$2,850,002 in dam ages. The W alterses withdrew their claim

f or punitive dam ages during the punitive dam ages phase of trial. ¶17. Plaintif

f s’ counsel m oved f

or an asses s m e n t o f a t t orney s’ f ees, requesting that the

court award attorney s’ f

e es in the am ount of $1,220,000. The trial court ultim a tely awarded $25,152.43 in attorney s’ f ees. Af ter the attorney s ’ f

ees were determ ined, a f

inal j udgm ent

was e ntered on August 24, 2018, a nd a n am ended f inal judgm ent was e ntered on August 28, 2018, to correct the om ission of awards f or nom i nal dam a g es. ¶18. On August 31, 2018, Parsons f iled a m o tion f

o r judgm ent notwithstanding the verdict, f or new trial , f

o r r e l i e f f rom judgm ent a nd/or f

or rem ittitur. The W alterses responded to Parsons’ m otion on Septem ber 14, 2018, arguing that the jury ’s verdict should be af f irm ed. On Decem

ber 12, 2018, the trial judge denied Parsons’ m otions f or j udgm ent notwithstanding the verdict, f o r new trial and f

or relief f rom judgem e n t, but he granted their

m otion f or rem ittitur and rem itted the verdict to $ 1,134,666.67. The t rial judge f ound that the W a lterses were judicially estopped f rom receiving t he f

ull judgm ent of $2,875,154.43

8because the jury ’s v erdict was against the overwhelm ing weight of the evidence and that a

rem ittitur of the verdict should be entered consistent with the W alterses’ requests f or relief

m ade in their m otion to set dam ages . O n J anuary 2, 2019, the trial judge entered a second

am ended f

inal judgm ent, awarding a rem i tted verdict f or $365,000 in dam a ges f

or em otional distress, $ 735,000 f

or f raud and $34,666.67 in attorney s’ f ees, a total rem itted verdict am ount of $ 1 ,134,666.67. In the rem itted verdict, the judge a warded dam ages to t he W alterses together, as if they were one plaintif f , unlike the jury ’s verdict, which individually awarded Vernon and Dony ell dam ages f or f raud, em otional distress and nom i nal dam ages. ¶19. Parsons n ow appeals the second am ended f i nal judgm ent, raising t wo assignm ents of

error. Parsons a rgues that the court erred by granting th e Wa l t e r ses’ m otion i n lim ine and by entering a verdict that was n ot based on substantial e vidence. Accordingly , Parsons asks that the verdict be reversed and judgm e nt rendered in its f avor or, alt e r n a t i v e l y , f

or a new trial. T he W alterses f

iled a cross-appeal, claim in g t h a t t he circuit court erred by rem itting the jury ’s verdict and asking that the jury ’s verdict be reinstated. STANDARD OF REVIEW ¶20. “This Court revie w s d e c i s ions r egarding the adm ission or exclusion of e v idence under

an abuse-of

- discretion standard.” Ill. Cent. R.R. Co. v. Brent , 133 So. 3d 760, 776 (Miss. 2013) (citing Y

oste v. Wal-Mart Stores, Inc. , 822 So. 2d 935, 936 (Miss. 2002)). ¶21. “The standard of review f or trial court decisions regarding a rem ittitur is the abuse of discretion standard.” U

. S . F i d . and Guar. Co. of M

iss. v. Martin , 9 98 So. 2d 956, 969 (Miss. 2008). T h is Court “has the responsibility t o s e e that such judicial discretion is

9exercised soundly and, if n ot, to r everse.” Id. (i n t e r n a l q u o tation m arks om i tted) (quoting

Holm es Ct

y . B a n k & T

r. Co. v. Staple Cotton Coop. Assoc. , 495 S o. 2d 447, 451 (Miss. 1986)). T h e C o u r t w ill not interf ere with a j ury ’s award of dam ages unless there is insuf f icient proof to support the award. Cm ty. Bank, Ellisville, Miss. v. Courtney , 884 So. 2d 767, 776 ( M i s s . 2 0 04) (citing Entergy M iss., I nc. v. B olden , 854 So. 2d 1 051, 1058 (Miss. 2003)). ¶22. “The standard of r eview on a m otion f o r a new trial is abuse of discretion.” Johnson

v. St. Dom inics-Jackson Mem ’l Hosp. , 9 67 So. 2d 20, 23 (Miss. 2 007) (citing Steele v. Inn of V i cksburg, Inc. , 697 So. 2 d 373, 376 (Miss. 1997)). I n a m otion f or a new trial, the Court reviews the weight of t he evidence rather t han t he legal suf f iciency of the evidence. Id. It is well established law that “W hen reviewing a denial of a m otion f or a new t rial based o n objection to the weig h t o f the evidence, [ the Court] w i ll only disturb a verdict when it is so contrary to the overwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Bush v. State , 895 So. 2d 836, 844 (Miss. 2005), abrogated on other grounds by Little v. State , 233 So. 3d 288, 291 (Miss. 2017)). The evidence should be reviewed in the light m ost f

avorable to the v e r d i c t

. I d . (citing Herring v. S

tate , 691 So. 2 d 948, 957 (Miss. 1997)). The verdict should not be set a side unless the Co u r t f i n d s t h a t it is not supported by the substantial weight of t he e v idence. I d . ( quoting L i

ft-All Co. v. Warner , 943 So. 2d 1 2, 15 (Miss. 2006)). “This Court shall reverse a trial judge’s denial of a request f or

new trial only w h e n s u c h d enial am ounts to [ an] abuse of that judge’s discretion.” Id. (internal quotation m arks om itted) (quoting Steele , 697 So. 2d at 376).

1 0DISCUSSION

¶23. On direct appeal, Parsons argues t hat the trial court erred b y granting the W alterses’

m otion in lim ine excluding Vern o n ’ s d eposition testim ony f r om the underly ing KCSR lawsuit and by entering a judgm e nt against P arsons that was not based on s u f f icient e vidence.
Parsons asks that the verdict against it be reversed and judgm ent r endered in t heir f avor, or alternatively , f

or a new trial. On cross-appeal, the W alterses argue that the trial court erred by rem itting the d am ages awarded to them by the jury ’s verdict and request that this Court reinstate the jury ’s verdict.
I. W h ether the trial court erred by granting t he m o tio n i n lim ine. ¶24. On direct appeal, Parsons argues that the circuit court erred by granting the W alterses’

m otion in lim ine, which excluded any evidence p ertaining to Vernon W alte rs’s deposition testim o ny taken f

or the purposes of the K CSR lawsuit. Parsons a rgues that the exclusion of such evidence deprived Parsons of an opportunity to develop bef o re the jury the lack of value and potential f

or the W alterses’ suit against KCSR. The W alterses argue here, as they did i n t h e i r m otion in lim i ne, that the evidence they sought to e xclude should not have b e e n adm itted because it was not relevant to the case bef ore the court under Mississippi Rule of Evidence 401 a nd because t he evidence’s probative v alue would h ave been greatly outweighed by

its prejudicial ef

f ect. ¶25. “[ I]f any evidence has probat i v e v a l u e a t a l l , t h e r u l e f a v ors its adm ission.” APAC–Miss., Inc. v. Goodm a n , 803 S o. 2 d 1177, 1184 (Miss. 2002) (internal quotation

m arks om itted) (quoting Miss. R. Evid. 401).

1 1¶26. Parsons argues that the jury should have been allowed t o hear the excluded evidence

regarding the value of the W alterses’ underly ing lawsuit against KCSR. W e agree with the
W a lterses that the evidence was not relevant to the issues bef ore the jury

at trial. ¶27. At trial, counsel f

or t he W alterses stated several tim e s t h a t the W alterses were not seeking dam ages f

or Tadd’s allowing t heir case a g ainst KCSR t o b e d i s missed. The
W a lterses’ counselor went on to state that the W a lterses f iled this c a se against Tadd, Jack and the Parsons Law Firm

based on the dam ages they incurred f

rom Tadd’s ly ing to them

. ¶28. The jury in this case had the task of determ ining the am ount o f dam ages the W alterses experienced d

ue to f raud and IIED by Tadd Parsons and the Parsons L aw F i r m. T h e dam ages t hat the W a lterses experienced due to Tadd’s f raud and IIED had nothing t o do with the value of the underly i ng case. The relevant dam ages a t issue were incurred f rom Tadd’s f alse s ettlem ent of

f er and the em otional distress the W a l terses endured d ue to Tadd’s wrongf ul conduct. W e af

f irm the trial court’s ruling on this issue.
II. Whether the verdict is supported by s ubstantial evidence. ¶29. On direct appeal, Parsons argues that the evidence presented at trial was not suf f icient

to s upport the verdict returned by the jury n o r was it suf f icient to support t he verdict as

r e m itted by the trial judge in the second am e nded f inal j udgm ent. Parsons argues that t h e verdict w as based on im perm issible speculat i on rather than substantial e vidence. The
Wa lterses counter P arsons’ argum ents, claim ing t hat the testim o nies Vernon, Dony e l l a n d Tadd m a de at trial are “dam ning and d isturbing” and that given their testim onies, it cannot be said that the jury

award is against the overwhelm ing weight of the evidence.

1 2¶30. W e f i nd that the W alterses have not presented suf f i cient evidence to support the jury ’s dam ages award or the trial court’s rem ittitur. ¶31. “A f

raud action perm its t he recovery of dam ages attribu t a b l e t o r e l iance upon an intentional m isrepresentation.” Cook v. Children’s Med. Group, P.A. , 756 S o. 2d 734, 741 (Miss. 1999). “ R ecovery f or em otional distress and m ental anguish, as well as punitive dam ages, is allowe d f

or f raud cases.” Id. at 740 (citing T.G. B lackwell Chevrolet Co. v. Eshee , 2 61 So. 2d 481, 4 85 (Miss. 1972)). Dam ages f or em otional distress alleged in connection with intentional t ortious conduct m ay be recovered, even when the p laintif f has experienced no p h y sical injury

. Cm ty. Bank, Ellisville, Miss. v . C ourtney , 884 S o. 2d 767,
775 (Miss. 2004) ( quoting Morrison v . Means , 680 So. 2d 8 03, 805 ( Miss. 1996), a brogated

on other grounds by A dam s v . U.S. Hom ecrafters, Inc. , 7 44 So. 2 d 7 36 ( Miss. 1999)). The standard considers w hether the “ the def endant’s behavior is m alicious, intentional, willf ul, wanton, grossly careless, indif f erent or reckless.” W

i lson v. G eneral Motors Acceptance Corp. , 8 83 So. 2d 56, 65 (Miss. 2004) (quoting Leaf River F orest P r ods., Inc. v. Ferguson , 662 So. 2 d 648, 659 (Miss. 1995), abrogated o n o t h e r g r o u n ds b y Adam s , 744 So. 2d at 742). “Still, even such a dem o nstration does not, without m o re, create a positiv e s h o wing of com pensatory dam a ges f

or em otional distress. A plaintif f who has b e e n i n tentionally wronged without dem o nstrable injury is to be awarded nom inal dam a g e s . ” S u m ler v. E. Ford, Inc. , 915 So. 2d 1081, 1089 (Miss. Ct. A pp. 2005) ( citing W hitten v. Cox , 799 So. 2d 1, 10 (Miss. 2000)). “[ T]he plaintif f s still bear the burden o f dem onstrating t he need f or

com pensatory dam ages bey ond nom inal dam ages[ .]” Whitten , 7 9 9 S o . 2 d at 1 0. To be

1 3com

pensable, d am ages f

rom em otional distress m

ust am o unt to m ore than m e re d iscom f orts. Id. “[ E]xpert testim ony

showing actual harm

or proof of a phy sical or m ental injury is not alway s required.” Gam ble ex r el. Gam ble v . Dollar Ge n . C

o r p . , 8 5 2 So. 2d 5, 1 1 (Miss. 2003). W hen claim s of em otional distress involve “only sleeplessness, m ental anguish, and hum iliation, com

pensatory dam ages can be awarded based ‘on the nature of t he i n cident f rom which the dam ages f

low.’” Id. (quoting Whitten , 799 So. 2d at 10–11). ¶32. “Com

pensatory dam a ges are such dam ages ‘as will com pensate the injured party

f or the injury sustained, and nothing m ore; such as will s im ply m ake good or replace the loss caused by the wrong or injury .’” Richardson v. C anton Farm E quip., Inc. , 6 08 So. 2d 1240, 1250 (M i s s . 1 9 9 2 ) (quoting Com pensatory dam a ges, Black’s Law Dictionary (5th ed. 1979)). Com pensatory dam ages should n o t be a warded as a m e ans of punishm ent or deterrent f or a def endant’s reprehensible behavior, f or it is the role of punitive dam ages to a ct a s a “m eans by w hich the public interest is s erved by sanctioning a party f o r particularly of

f ensive conduct both as punishm ent to the of f ending party and as an o bject l esson to others to avoid sim ilar conduct in the f

u ture.” Brown v. N. J

a c kson Nissan, Inc. , 856 So. 2d 692, 697 (Miss. Ct. App. 2003) (citing Am . Life Ins. Co. v. Hollins , 830 So. 2d 1230, 12 4 3 ( M i ss. 2002), o verruled on o ther grounds by Mladineo v. Schm idt , 52 So. 3 d 1154 (Miss. 2010)). ¶33. W h en the f

acts and award in th i s c a s e a r e c o mp a r e d t o a w a r ds this Court has previously upheld f

or em otional-distress dam ages stem m ing f rom injuries sustained f

rom a def endant’s intentionally tortious conduct, it is abundantly clear that the award here was not based on suf

f i c ient evidence.

1 4¶34. In Gam ble , t his Court upheld a $75,000 jury verdict a w a r d i n g a c t u a l dam ages f or assault and the em otional distress the a ssaulted caused, when t h e plaintif f h ad dem anded actual and punitive dam ages in e xcess of $2,500. G am ble , 852 So. 2d at 8. The plaintif f in that case was publicly accused of shoplif ting and af

ter asking the plaintif

f what she had in her pants, the store em

ploy ee grabbed the plaintif f by the p anties f

rom the back of her pants and pulled on them

. Id. at 9

. The evide n c e p resented r egarding the plaintif f ’s em otional distress included t he t estim ony of the of f icers to whom the plaintif

f reported the incident that the plaintif

f was extrem ely upset a nd cry ing when recounting the incident to t he police; the plaintif f ’s own testim ony that the incident had m ade h er f eel assaulted and hum iliated af ter baselessly having her underwear checked f o r s tolen m erchandise in public, had upset her

em otionally

and had af

f e cted her grades and had caused her to suf f e r f rom insom nia about f our nights a week; and testim ony f rom the plaintif

f ’s parents and f

riends corroborating her

em otional-distress claim

. Id. ¶35. Unlike the evidence presented in Gam ble , here, the W a lterses have f ailed t o present evidence of any phy sical m anif e stations, bey ond Dony ell’s testim ony that she had suf f ered

som e sleepless nights due to stress stem m ing f r om Vernon’s being inju r e d a nd the usual

stress that having a pending lawsuit would induce, of the em o tional d istress they have suf f e red as a r esult of Tadd’s f raud and IIED. Th e p l a i n t if f in Gam ble also called several witnesses who c orroborated her testim ony , including her parents, f riends and the of

f icer to whom sh e r e p orted the incident. Here, the W alterses called no witnesses other than each other to corroborate their testim onies about the em otional distress they had suf f ered.

1 5¶36. In Whitten , this Court held that in light of the evidence p resented, t he jury reasonably

returned a verdict awarding one plaintif f , Cox, $50,000 in com

pen s a t o r y dam ages and $30,000 to the two o ther p laintif f s, Logan and Spinosa, f

or their claim s of em otional distress related to their claim s f

o r assault, battery and f

alse im prisonm e nt. Whitten , 799 S o. 2d at 13. There, Cox was ordered t o get out of his truck, had his truck s h ot at while he was driving it,

was threatened p hy sically , had a gun held to his head, was handcuf f ed, was threatened to be thrown into a bay o u w hile handcuf f ed, h ad a tire on his truck shot o ut, had his cap pulled d o w n o v e r h i s f

ace, was m ade to lie f

ace down on the ground a n d to k neel on the groun d while m e n with loaded a ssault rif les stood around and was i llegally detained. Id. a t 12. Cox testif i ed that the incident placed him i n an im m ediate state of shock, c h anged him as a person, m ade him

f e el dem eaned and caused him to suf f e r m arital problem s ; he stated that the i ncident play ed a l arge part in his divorce f r om his wif

e. Id. Cox’s brother also testif ied the em otional distress caused Cox to lose thirty pounds. Id. at 11–12. ¶37. Throughout t he incident, t he other two pl a i n t i ff s, Logan and Spinosa, were passengers in a t ruck being shot at; h ad a cocked pistol waved around i n their f aces, pointed directly at them and held about twelve inches f rom their heads; were threatened w ith p hy sical violence;

were ordered out of t he car; were ordered to the ground a nd kept down on the g round; were cursed at incessantly ; w e r e s u rrounded by m en a rm ed with loaded assault rif les; and were illegally d etained. I

d. at 12–13. Logan t estif ied that he t ruly f

e lt that the def

endant m ight have shot Cox and that the incident stuck in h is m ind. Id. a t 12. Logan f urther testif

ied that the incident m ade him suf f er f rom f ear to l eave his wif

e and children alone and f rom

1 6nervousness and worry , that t he incident m ade him unable to concentrate a t w o r k a n d that

the incident m a de him short-tem pered with his wif

e a n d children. Id. L o gan’s wif e testif ied that L ogan w as nervous, that Logan had dif f iculty sleeping and that his work had suf f ered. Logan’s f ather testif

ied that the e m otional distress f r om t he inciden t h a d a f

f ected Logan’s work and h ad m ade him nervous and upset all t he tim e and t hat Logan had not been the sam e since the incident. Id. The other plaintif f , Spinosa, testif

ied t hat s i nce the incident, because of the def endant’s conduct, h e f

elt devastated, like an o ld dog that had been kicked around. Id. a t 13. Spinosa testif

i ed that ever since the incident, e v ery tim e he saw the def endant, he would becom e f

e arf ul; the em otional distress f rom the incident t roubled him enough to m ove his f am ily away f

rom the town where t h e y w e r e living, where t he incident occurred and where the def

endant lives. I

d. ¶38. The plainti f

f s i n W h i t t e n o n l y r e c o vered am ounts of $50,000 and $30,000 f or

em oti o n a l d istress af

ter suf f ering f rom devastating, lingering and l if e-altering m a nif

estations of em o tional distress. Id. Here, the W alterses’ em otional distress ma n i f ested m erely as f eelings of anger, deceit, betray al or just sim ply f eeling let down. ¶39. In M

orrison , this Court stated that even if the f a cts o f the case were dif

f erent so that

t h e d e f e n dant’s conduct had risen to the level o f m alicious, intentional, willf ul, wanton , grossly careless, indif

f e rent or reckless, the plaintif f , M eans, s till could not recover o n a claim o f m ental a nguish resulting f rom the def

endant’s conduct f

or l ack of injury

. Morrison , 680 So. 2d at 806–07, a b rogated on other grou n d s b y A d a m s , 744 So. 2d a t 7 42. Means testif i ed that h e had endured m any sleepless nights because he f elt that Morrison, the

1 7def

endant, had wronged him a n d had cheated him o ut of his o wn m o ney that he needed to support his f

am ily

. Id. at 807. Means also testif i ed t hat Morrison’s alleged conduct “caused him t he stress and anxiety of try ing to determ i ne h ow he could m ake e nds m eet without the”

m oney he believed Morrison o wed him

. Id. at 806. Means put t he a m o u n t a t issue in the

case i nto p er s p e c t i v e by testif y ing that because he was just a y oung f arm er, t he m oney he believed Morrison owed him , $1,45 6

. 8 0 , a mounted to a signif icant part of h is f

am ily ’s incom e. Id. T he C ourt stated t hat the evidence Means presented in that case would not be suf f i cient to support a verdict award of $3,543.20 in com

pensatory dam ages f

or em otional distress. Id. at 807. ¶40. The claim s of em otional distress in Morrison e cho several of the W alterses’ claim s here. Vernon testif

i ed that he and Dony ell were try ing to f igure out how they were going to af f ord to pay f

o r every thing i f Vernon could not go b ack t o work, how they were going to be able to keep every

thing that he had worked f or and how they

were going to survive. ¶41. Sim ilar to the testim ony in Morrison , the W alterses’ t estim o ny a lso o n l y c o n t ained

two sentences about sleepless nights. Dony ell testif ied that sh e h a d e x p e rienced sleepless

n i g h t s due to the f

act that she w as try ing to take care o f her injured husband and t r y i n g t o work. W hen Vernon was asked o n direct exam ination if h e had problem s sleeping, he replied with a one word answer, “Yes.” He did not elaborate as to how f requently he experienced

a sleepless night or when these sleepless nights began or what m ight h ave been causing them

.

1 8¶42. The f acts and p r o c e dural history of Stewart v. Gulf Guaranty Life Insurance Co. , 846 So. 2d 192 (Miss. 2002), are quite sim i lar to the f acts here. In S

tewart , the jury returned a verdict awarding dam ages of $ 3,500 f or breach of contract, $500,000 f or em o tional distress

a n d $ 5 0 0 , 0 0 0 in punitive dam ages, and the trial court subsequently ordered a rem ittitur of the dam ages f

or em otional distress to $50,000. Id. at 198. T he plaintif f , Stewart, a

ppealed, requesting that t he j ury verdict be reinstated. I d. S tewart testif

ied that the econom ic strain caused by the def

endant’s denial of his claim f orced his f

am ily t o f ile f or f ood stam p s, which

was an em

barrassm ent f

or Stewart. I

d. at 199. Stewart f

urther testif

ied that the em otional distress stem m ing f

rom the denial of his claim caused him to experience weight loss, trouble sleeping and eating , e x t r e me anxiety and cry ing spells. Id. Stewart’s wif e’s testim ony corroborated Stewart’s, and both t estif ied that Stewart had never had such problem s bef ore his claim was denied by t h e d e f endant. Id. Dr. Mark Allen, who began treating Stewart about the m onth af

ter his c laim

was denied, “testif

ied that S tewart was severely depressed,

extrem ely anxious, and suf f ered f rom stress-induced o bsessive com pulsive disorder.” Id. at 199–200. Dr. Allen also testif ied that h e had been prescribing antidepressants f o r Stewart f or m ore than seventeen m onths. Id. at 200. This Court stated that in light o f the evidence presented, “[ c]learly , Stewart dem onstrated com p ensable dam ages f

or me n tal a n guish and

em otional distress[ ]” resulting f rom the denial of his insurance c laim

. Id. Thus, this Court f ound that Stewart h ad presented suf f i cient e vidence t o support the jury ’s a w a r d of $500,000 in dam ages f

or em otional distress. Id.

1 9¶43. Here, V ernon testif ied t hat he was also having problem s w ith depression a n d dealing

w i th e very day lif

e because his brain was still bothering him

. Vernon had s uf f er e d f r o m bleeding on the brain as a result of the collision with the train. The W alterses p resented no

m edical expert t estim ony to corroborate or support Vernon’s claim of depression or f or any other em o tional distress they had suf f e red. Expert testim o ny

is not alway s required bef ore

a plaintif f can recover dam ages f

o r d e p r e ssion r esulting f

rom em otional distress. Gam ble , 8 52 So. 2d at 11. But, here, because the evidence of depression is based sole l y o n t h e plaintif f ’s own s peculation, a ssertion or self -diagnosis of depression, s u ch a large recovery is not warranted. ¶44. The W alterses’ rem aining claim s of em otiona l distress resulting f r om Tadd’s f

raud are scant and do not carry m uch weight. ¶45. Dony ell testif

i ed t hat s h e had suf

f ered f rom stress, b ut she a lso testif ied that the cause of that s tress preexisted her and her husband’s retaining T a dd Parsons. D ony ell testif ied that the stress she and V ernon experienced did not start as a result o f s e ttlem ent-of f er m e eting but that she was already stressed af ter Vernon’s accident because her husband had been injured. Dony ell testif

ied that she f

e lt m ore st r e s s e d a n d m o re f rustrated as tim e went on though because she was not receiving f eedback f

r om Tadd as to what was happening in her h u s b a n d ’ s c a se. Dony ell testif ied that her stress level rem ained the sam e when she and
Vernon went t o retain a new attorney the day af ter their m eeting with Jack b ut that she was getting m o re angry . Dony ell sim ilarly testif ie d that she s uf

f e red f r om worry ing about her husband because he had been injured in an accident.

2 0¶46. The e m otion the W alterses seem to have experienced the mo s t i s a n g e r . D o ny ell

testif i ed that af ter she learned that the settlem ent of f er was not real, she “was angry and hurt, f elt like [ she] had been screw e d o v e r a n d [ her] husband had b een screwed, af ter going

t h r ough an accident. And it is hard. Makes y ou not want to t rust an attorney

. Y ou don’t know who y ou can trust i f y o u can trust them

. So a ngry . ” She testif ied that V ernon was very angry and hurt as w ell but that “he keeps it m ore bottled up i nside.” W hen Vernon was asked how he f elt when he f

ound out that T a d d h a d l ied to him , V ernon responded, “Oh, I was PO’d big t im e. I m ean, I could have bit nails. I m ean, I was h ot. If I had – that day I f ound him – I m ean that day I f

ound out the inf

orm ation . . . .” W hen asked how he f elt when he f ound out that his trust in T add had been m i splaced, Vernon answered that he could not put it in words but that he was just hurt. ¶47. The above-ref

erenced cases provide exa mp l e s o f award am ounts f or com pensatory dam ages that this C ourt has previously deem ed appropriate and acceptable and those that this Court has not. W e do not seek to l im it t he jury ’s p ower or ability t o award whatever am ount it f inds appropriate f

or com pensatory d am ages in f

uture cases in which t h e e v i d e n ce is suf f i cient to support the award. But, here, the e vidence presented sim ply does not support a verdict of

m o r e than $1 m illion. It appears clear that the initial jury verdict was punitive in nature. For reasons unk n o w n t o this Court, however, the W alterses withdrew their punitive-dam ages claim

. ¶48. Af ter reviewing t h e e v i d e n c e p resented at trial, it is clear that the com pensatory dam ages awarded t o the Wa l t e r s e s were excessive a nd could not be supported by the

2 1presented evidence. T his Co u r t believes that t he egregious, outrageous and obviously

intentional nature o f T a d d ’ s conduct m ay have inf luenced the trial court t o award

com pensatory dam a ges that were penal in nature. B ut com p ensatory dam age s should be awarded o n l y u p t o an am o unt that will com pensate the plaintif

f s f or the injuries they sustained and should n ot be i ncreased based o n t he n ature of a def endant’s conduct. Punitive dam ages, rather, are t he m eans b y which a def endant m ay be punished f or the egregious or outrageous nature of his conduct and deterred f rom conducting him self in a sim ilar m anner in the f uture. Here, the W alterses withdrew their claim f or punitive dam ages af

ter the jury returned an excessive verdict on com pensatory d am ages in t heir f avor. Wh e t h e r the
W a lterses’ claim f

or punitive dam ages m a y b e re v i v e d i s a q u estion f or t he trial court to

answer on rem and in accordance with applicable law. CONCLUSION ¶49. Af ter reviewing the r e cord, we f i nd that t he trial court did not abuse its discretion by excluding irrelevant evidence about t he underly ing KCSR lawsuit because the v alue of the lawsuit has n o b e a r i n g o n the dam ages the W alterses sustained due to Tadd P arsons’s and the Parsons Law Firm ’s f raud and IIED. ¶50. W e f

u rther f i nd that the W alterses have f ailed t o present evidence suf f icient to support the judge’s r em i tted verdict a ward of $1,134,666.67 in com p ensatory dam ages f

or f raud and

2 2em otional distress, and we reverse the judgm ent of t he trial court a n d rem and the c ase f o r a new trial on dam ages. 1 ¶51. Because w e f

ind that t he rem itted verdict’s award of d am ages is excessive and is not supported by substantial evidence, the W alterses’ request to reinstate the jury ’s verdict that was raised on cross-appeal is m oot. ¶52. O N D I R E C T A P P E A L : A F F IRMED IN PART A N D R E V E R S E D A N D REMANDED IN PART. ON CROSS-APPEAL: DISMISSED AS MOOT.
K I T C H E N S A N D K

I NG, P . J J . , C O L E M A N , B E A M , I S H E E A N D G R I F F I S , J J . , CONCUR. RANDOLPH, C.J., A ND MAX WELL, J., NOT PARTICIPATING.

1 M ississip p i R u l e o f C iv il P ro c ed u re 5 4 (d ) states i n p ertin en t p art t h a t a “f i n al j u d g m en t sh all n o t b e en tered f o r a m o n etary am o u n t g reat e r t h an th at d em an d ed in th e p lead in g s o r am e n d ed p lead in g s.” M iss. R

. C iv

. P

. 5 4 (d ). Wh eth er th e W a l terses’ p lead in g s m ay b e am en d e d acco rd in g to M ississip p i R u le o f C iv il P ro c ed u re 1 5 ( b ) an d ap p licab le case law so th a t th e W a l t e r s es m ay r eceiv e an a w ard f o r c o m p en sato ry d am ag e s ex ceed in g th e $ 2 5 0 ,0 0 0 th ey d em an d ed in th eir co m p lain t i s a q u estio n f

o r th e trial co u rt to d eterm in e o n rem an d

. 2 3