Gene Jones v. Fluor Daniel Services Corporation

• Court: Mississippi Supreme Court
• Decided: March 4, 2008
• Docket: 2008-CA-00456-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2008-CA-00456-SCT

GENE JONES, ASHLEY CRAFT, RALPH SCOTT, HARDY GORDON, JAMES WILLIAMS AND REGGIE WILLIAMS

v.

FLUOR DANIEL SERVICES CORPORATION

DATE OF JUDGMENT: 03/04/2008 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: THOMAS QUITMAN BRAME, JR. ATTORNEYS FOR APPELLEE: GARY E. FRIEDMAN STEVE J. ALLEN SAUNDRA BROWN STRONG NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED - 02/18/2010 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

PIERCE, JUSTICE, FOR THE COURT:

¶1. This case comes before this Court for the second time on appeal from the Jasper

County Circuit Court’s grant of Fluor Daniel Services Corporation's Motion for Summary

Judgment. The trial court dismissed the plaintiffs' claims of intentional infliction of

emotional distress with prejudice as barred by the statute of limitations. We affirm the trial

court on all issues. FACTS

¶2. The six plaintiffs in this case are all African-American males and former employees

of Fluor Daniel Services Corporation. While employed with Fluor Daniel, they worked

under the direct supervision of Rudy Amaro, a Mexican man. The plaintiffs’ complaint

alleges Amaro committed a number of racially-motivated offenses while acting in the scope,

course, and authority of his employment. The plaintiffs filed a joint action against Fluor

Daniel, claiming Fluor Daniel is vicariously liable for Amaro’s actions. The complaint

alleges these actions constitute “a wrongful and malicious discharge, a negligent infliction

of emotional distress, a willful and malicious breach of the duty of good faith and fair

dealings, a retaliatory discharge, and a grievous and malicious tort under other various

theories of the law.” Amaro also was named a defendant, but was never served with process

and is believed to have returned to Mexico.

¶3. This case came before this Court on appeal previously from the trial court’s prior

grant of summary judgment. Jones v. Fluor Daniel Services Corp., 959 So. 2d 1044 (Miss.

2007) (“Jones I”). In Jones I, this Court reversed the trial court’s grant of summary

judgment as to the claim of “tortious infliction of emotional distress” and remanded the

matter to the trial court for further proceedings on that issue alone. We stated, “[i]n viewing

the record in its entirety in the light most favorable to the plaintiffs, we find there is enough

evidence to maintain a cause of action for intentional infliction of emotional distress.” Id. at

1050. This Court affirmed the trial court’s grant of summary judgment as to all other issues.

¶4. On remand, Fluor Daniel again moved for summary judgment – this time alleging the

statute of limitations had run on the plaintiffs’ intentional-infliction-of-emotional-distress

2 claim. All the plaintiffs were laid off between October 27, 2001, and February 22, 2002.

This action was not commenced until April 4, 2003. The trial court found that, although

intentional infliction of emotional distress is not listed specifically as one of the intentional

torts barred by a one-year statute of limitations in Mississippi Code Section 15-1-35, this

Court established that the one-year statute of limitations applies to claims for intentional

infliction of emotional distress in CitiFinancial Mortgage Co., Inc. v. Washington, 967 So.

2d 16, 19 (Miss. 2007). The trial court further found that the defendant did not waive the

statute-of-limitations defense, granted Fluor Daniel’s motion for summary judgment, and

dismissed the plaintiffs’ claim as time-barred. Aggrieved by the trial court’s grant of

summary judgment, the plaintiffs again appeal to this Court.

ANALYSIS

¶5. The plaintiffs raise the following issues on appeal:

I. Whether the trial court erred by granting summary judgment as to the plaintiffs’ intentional-infliction-of-emotional-distress claims.

II. Whether the trial court erred in applying a one-year statute of limitations to an intentional-infliction-of-emotional-distress claim.

III. Whether the trial court abused its discretion by allowing the defendant to file its Answer to the Amended Complaint four years late.

IV. Whether the trial court abused its discretion by allowing the defendant to propound initial discovery more than four years late.

¶6. This Court reviews an order granting summary judgment de novo. Mantachie

Natural Gas Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992) (citing

Clark v. Moore Mem’l United Methodist Church, 538 So. 2d 760, 762 (Miss. 1989)).

3 Furthermore, this Court reviews questions of law, including statute-of-limitations issues, de

novo. Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So. 2d 78, 81 (Miss. 2003)

(quoting ABC Mfg. Corp. v. Doyle, 749 So. 2d 43, 45 (Miss. 1999)). Where summary

judgment is at issue, “[t]he evidence must be viewed in the light most favorable to the party

against whom the motion has been made.” Id. In those instances, “[a]ll that is required of

a non-movant to survive a motion for summary judgment is to establish a genuine issue of

material fact.” Simmons v. Thompson Mach. of Miss., Inc., 631 So. 2d 798, 801 (Miss.

1994).

I.

¶7. The plaintiffs contend that the court erred in allowing Fluor Daniel to maintain the

defense of statute of limitations asserted in the original answer. The plaintiffs allege that

Fluor Daniel has waived its right to rely on the statute of limitations as a defense in this

matter, and rely on the fact that Fluor Daniel pleaded the statute of limitations as a defense

in nonspecific terms. The exact language on which the plaintiffs focus comes from Fluor

Daniel’s original answer, in which it stated that the claim “may be barred by statutes of

limitations.” (Emphasis added.) The plaintiffs essentially assert that the use of the word

“may” rather than “is” is a failure to plead affirmatively the defense of statute of limitations.

This argument is without merit.

¶8. The plaintiffs allege that “more critical to the determination of this point is the fact

that the Defendant did absolutely nothing to advance or assert any argument that the statute

of limitations had run . . . while participating in this litigation for years and years.” This

Court has said, “A defendant’s failure to timely and reasonably raise and pursue the

4 enforcement of any affirmative defense or other affirmative matter or right which would

serve to terminate or stay the litigation, coupled with active participation in the litigation

process, will ordinarily serve as a waiver.” Miss. Credit Center, Inc. v. Horton, 926 So. 2d

167 (Miss. 2006).

¶9. The relevant issue in Horton was whether or not the defendant waived his right to

compel arbitration by waiting more than eight months to pursue his right to arbitrate, while

actively participating in the litigation. The defendant asserted that right in his answer, but

did not file a motion to compel arbitration or request a hearing on the motion within what this

Court considered a reasonable time. Furthermore, the defendant in Horton substantially

engaged in the litigation “by consenting to a scheduling order, engaging in written discovery,

and conducting [a] deposition.” Id. at 180. He provided no explanation for the delay.

¶10. This Court held, “[a]lthough participation in the litigation is an important factor to be

considered, more is required to constitute a waiver.” Id. We found that participation in the

litigation, coupled with substantial and unreasonable delay in pursuing the right to compel

arbitration, constituted a waiver of that right. Id. We further pointed out that “prejudice to

the party resisting arbitration is a factor to be considered.” Id. at n.7 (citing Russell v.

Performance Toyota, Inc., 826 So. 2d 719, 724 (Miss. 2002)).

¶11. Finally, the Horton Court said, “[o]ur holding today is not limited to assertion of the

right to compel arbitration.” Id. at 180. We found that unreasonable failure to timely assert

any right which could terminate the litigation could lead to a waiver of such right if coupled

with participation in the litigation process. In an attempt to define what constitutes an

unreasonable delay, this Court stated:

5 We decline today to set a minimum number of days which will constitute unreasonable delay in every case, but rather we defer such findings for the trial court on a case by case basis. We do hold however that – absent extreme and unusual circumstances – an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.

Id. (emphasis added).

¶12. In the present matter, there is uncertainty as to when the plaintiffs’ claim for

intentional infliction of emotional distress was raised. The plaintiffs’ original complaint

states that the defendant’s actions constitute “a negligent infliction of emotional distress.”

The complaint does not mention intentional infliction of emotional distress. The defendant

stated in its answer that “[t]he plaintiffs’ claims, to the extent any are stated, may be barred

by statutes of limitations.”

¶13. In a written response to Fluor Daniel’s motion for summary judgment in Jones I, the

plaintiffs stated that they had demonstrated “a viable cause of action on a theory of infliction

of emotional distress.” Their argument is based on two cases which directly address

intentional infliction of emotional distress.1 At the hearing on the motion for summary

judgment in Jones I, the plaintiffs’ counsel referred to the claims as “intentional infliction

of emotional distress.” The trial court’s order granting summary judgment in Jones I

described the cause of action as “tortious infliction of emotional distress.”

¶14. The plaintiffs’ brief in Jones I refers to its emotional-distress claim as simply

“infliction of emotional distress.” However, Fluor Daniel’s brief in Jones I refers to the

1 Lee v. Golden Triangle Planning and Dev. Dist., Inc., 797 So. 2d 845 (Miss. 2001); Brown v. Intercity Fed. Bank for Sav., 738 So. 2d 262 (Miss. Ct. App. 1999).

6 plaintiffs’ claim as “intentional infliction of emotional distress,” and was filed with this Court

on September 9, 2006. This Court subsequently ruled that the plaintiffs’ intentional-

infliction-of-emotional-distress claims should survive summary judgment. Jones I, 959 So.

2d at 1049. Jones I was handed down on June 21, 2007.

¶15. The litigation, of course, was stayed until this Court handed down its ruling that the

plaintiffs’ intentional-infliction-of-emotional-distress claim was still viable on June 21, 2007.

Fluor Daniel filed its motion for summary judgment on its statute-of-limitations defense on

January 22, 2008 – some seven months later. While this Court ruled, in Horton, that an

unjustified eight-month delay in pursuing a defense, coupled with participation in the

litigation, is unreasonable and constitutes waiver of that defense as a matter of law, we

deferred to the trial court on a case-by-case basis findings of fact as to what constitutes an

unreasonable delay for any time less than eight months.

¶16. In the present matter, the trial court granted summary judgment and communicated

this through a letter to the counsel of record. Two days later, the plaintiffs filed a motion for

findings of fact and conclusions of law “on the issue of the waiver of affirmative defense of

statue of limitations.” In its opinion and order, the trial court ruled that “the defendant has

not waived [the statute-of-limitations] defense,” but did not expound further on this issue.

¶17. It cannot be said that the trial court abused the discretion given to it by this Court in

Horton by ruling the defendant had not waived the statute of limitations defense –

particularly in light of plaintiffs’ failure to state their claim clearly. Therefore, the trial court

is affirmed as to this issue.

II.

7 ¶18. The plaintiffs assert that the trial court erred in applying a one-year statute of

limitations to an intentional-infliction-of-emotional-distress claim, and that a three-year

statute of limitations applies to a claim for intentional infliction of emotional distress. This

Court has been inconsistent in its rulings on whether an intentional-infliction-of-emotional-

distress claim is subject to a one-year statute of limitations under Mississippi Code Section

15-1-35, which specifically enumerates certain torts which carry a one-year statute of

limitations. The statute reads as follows:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

Miss. Code Ann. § 15-1-35 (Rev. 2003).

¶19. This Court has said, “intentional and/or negligent infliction of emotional distress

claims are governed by the three-year statute of limitations.” Norman v. Bucklew, 684 So.

2d 1246, 1256 (Miss. 1996). In Norman, intentional and negligent infliction of emotional

distress are lumped together, and no authority is cited for this proposition.

¶20. On the other hand, this Court also has held that intentional infliction of emotional

distress is subject to the one-year statute of limitations under Mississippi Code Section

15-1-35. Pierce v. Cook, 992 So. 2d 612, 618 (Miss. 2008) (citing Slaydon v. Hansford, 830

So. 2d 686, 689 (Miss. Ct. App. 2002)). Again, we stated “[t]he claim for intentional

infliction of emotional distress is subject to a one-year statute of limitations under Mississippi

Code Annotated Section 15-1-35 (Rev. 2003).” CitiFinancial Mortgage Co., Inc. v.

Washington, 967 So. 2d 16, 19 (Miss. 2007) (citing Southern v. Miss. State Hosp., 853 So.

8 2d 1212, 1214 (Miss. 2003)). The Pierce analysis centered around whether the tort at issue

constituted a continuing tort, and no binding authority was cited for the proposition that

intentional-infliction-of-emotional-distress claims are subject to a one-year statute of

limitations. To further complicate things, the Southern case cited by the Washington Court

does not analyze the statute of limitations for intentional infliction of emotional distress, but

rather the statute of limitations under the Mississippi Tort Claims Act.

¶21. We opened the door for ambiguity in Dennis v. Traveler’s Insurance Co., 234 So.

2d 624 (Miss. 1970), in which this Court held that the one-year statute of limitations found

in Mississippi Code Section 15-1-35 applied to an action for “willful, malicious, and

irresponsible . . . threat of criminal prosecution . . . .to enforce a purported civil debt.” The

case involved an insurance company sending a letter threatening legal action if the plaintiffs

did not pay for damage caused by their son's vandalism. The Court held that the letter fell

within the purview of that statute under the category of “menace,” noting that the term

“menace” meant threat. Since the letter written by the defendant was threatening, it fell

within the category of menace, and therefore the one-year statute of limitations found in

Section 15-1-35 applied.

¶22. This Court has “consistently held in many cases . . . that where a statute enumerates

and specifies the subject of things upon which it is to operate, it is to be construed as

excluding from its effect all those not expressly mentioned or under a general clause, those

not of like kind or classification as those enumerated.” S. W. Drug Com. v. Howard Bros

Pharmacy of Jackson, Inc., 320 So. 2d 776, 779 (Miss.1975) (emphasis added). In defining

“of like kind or classification” with regard to Section 15-1-35, this Court has held, “the fact

9 that wrongful conduct is alleged to be intentional does not determine which statute controls.

Dennis means no more than that the absence of a label is, similarly, not controlling.”

Nichols v. Tri-State Brick and Tile Co., Inc., 608 So. 2d 324, 333 (Miss. 1992). We further

stated, “[w]here . . . the conduct alleged may be fairly categorized as one of the enumerated

torts, the one-year statute applies. Otherwise, it does not.” Id. In Nichols, we held that the

plaintiff’s claims were not time-barred by Section 15-1-35 because its claims were not “fairly

embodied in any of the causes there enumerated.” Id. (emphasis added).

¶23. The Norman case creates most of the confusion in our precedent as to which statute

of limitations applies. As stated above, the Norman Court held that, “intentional and/or

negligent infliction of emotional distress claims are governed by the three-year statute of

limitations.” Norman, 684 So. 2d at 1256. This Court agrees with the analysis by the

Southern District of Mississippi, which pointed out that

the Norman Court did not distinguish between the negligent and intentional infliction of emotional distress torts and instead lumped both together into the category of claims for ‘emotional distress’ damages . . . [and] did not acknowledge, much less address and reject all of this substantial precedent on the issue of the statute of limitations applicable to claims for intentional infliction of emotional distress.

Hervey v. MetLife Gen. Ins. Corp. System Agency of Miss., Inc., 154 F. Supp. 2d 909, 915

(S.D. Miss. 2001) (quoting Hervey v. Metlife Gen. Ins. Corp., 147 F. Supp. 2d 517 (S.D.

Miss. 2001)).

¶24. We, like the Hervey Court, are convinced that this Court would not have approached

the statute of limitations for intentional infliction of emotional distress “in so cavalier a

manner, with nothing more than an oblique reference, unaccompanied by explanation.” Id.

10 at 917. Therefore, we conclude that the reference in Norman “was unintentional, and that

consistent with all other authorities which predated and postdated Norman, the one-year

limitations period applies.”Id.

¶25. We also find the Fifth Circuit’s analysis in King v. Otasco, Inc., 861 F. 2d 438 (5th

Cir. 1988), to be persuasive. There, the court said, “although not explicitly listed in the one-

year statute,” the plaintiff's claims for intentional infliction of emotional distress and

outrageous conduct were “undoubtedly intentional torts, and so closely analogous to the

common law actions for assault, libel, and slanderous words that they too must fall within

the statute's bar.” Id. at 442 (emphasis added).

¶26. Intentional infliction of emotional distress is a tort against the person, as are the vast

majority of those specifically enumerated in Section 15-1-35 of the Mississippi Code. Miss.

Code Ann. § 15-1-35 (Rev. 2003). Therefore, under Nichols, a cause of action for

intentional infliction of emotional distress is “fairly embodied” in the causes of action

included in Mississippi Code Section 15-1-35. Based on the prior analysis, we hold that the

tort of intentional infliction of emotional distress is of like kind or classification as the torts

enumerated in Section 15-1-35, as required by Southwest Drug Company, and it too carries

a one-year statute of limitations. To the extent the Norman case holds otherwise, it is

expressly overruled.

¶27. In light of this holding, the plaintiffs’ claims are barred by the one-year statute of

limitations found in Mississippi Code Section 15-1-35. Therefore, trial court is affirmed as

to this issue.

11 III.

¶28. Jones I was handed down on June 21, 2007, and this matter was remanded to the trial

court, after which Fluor Daniel filed an amended answer in January 2008. The plaintiffs

complain that the trial court erred in allowing the defendant to file its amended answer

approximately four years late.

¶29. This Court has found, in part through the comment to the rule, that amended pleadings

have been liberally permitted throughout Mississippi's legal history. See Miss. R. Civ. P.

15(a) cmt.; Moeller v. Am. Guar. and Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002);

Beverly v. Powers, 666 So. 2d 806, 809 (Miss. 1995); Webb v. Braswell, 930 So. 2d 387

(Miss. 2006). The grant or denial of a motion for leave to amend is within the sound

discretion of the trial court. MBF Corp. v. Century Bus. Commc’ns, Inc., 663 So. 2d 595,

600 (Miss. 1995); Frank v. Dore, 635 So. 2d 1369, 1375 (Miss. 1994). While the trial court

has discretion to allow an amendment and should do so freely under the proper

circumstances, an amendment should not be granted when it would prejudice the other party.

Hester v. Bandy, 627 So. 2d 833, 839 (Miss. 1993). Thus, in the matter before us today, we

may reverse the trial court’s grant of Fluor Daniel's motion to amend its answer only upon

finding abuse of discretion by the trial court. Otherwise, the trial court's grant of this motion

to amend must remain undisturbed.

¶30. The plaintiffs are incorrect in their assertion that Fluor Daniel must show excusable

neglect under Rule 6 of the Mississippi Rules of Civil Procedure. The correct rule governing

amendments to pleadings is Rule 15, which is titled “Amended and Supplemental Pleadings.”

12 The situation before us is similar to that dealt with by this Court previously in City of

Jackson v. Presley, 942 So. 2d 777 (Miss. 2006). The Court then also analyzed an amended

answer that was filed four years late and found that the trial judge had erred in granting

Presley’s motion to strike the amended answer.

¶31. In Presley, the city had filed its original answer and affirmative defenses on June 28,

1999. Presley, as the plaintiff, filed her amended complaint on June 27, 2000. The city did

not file an amended answer until August 5, 2004, more than four years later. This Court

reviewed the original and amended complaints and noted that the original complaint and the

amended complaint were identical, except for one sentence which was added to the amended

complaint. The sentence said, verbatim, “Additionally, Presley has incurred property damage

as a proximate result of Morton's negligence and the resulting accident.” This Court noted

that the untimely-filed answer and affirmative defenses to the amended complaint also

virtually mirrored its timely-filed responsive pleading to the original complaint. However,

the city did add three additional affirmative defenses. The added defenses were res judicata,

accord and satisfaction, and setoff or credit for sums Presley had received in the settlement

of the first lawsuit. The Court found it important that, as of the date of the trial, while the

city's answer (and affirmative defenses) to the amended complaint unquestionably were filed

more than four years late, a default judgment was never requested. This Court found that the

defendant should have been allowed to maintain the defenses asserted in the amended

answer.

13 ¶32. In the case sub judice, the plaintiffs added four more plaintiffs, with all their

jurisdictional statements and prayers for relief, and also altered the service-of-process

allegation for Fluor Daniel. These are the only differences between the first amended

complaint and the second amended complaint, which is at the heart of this matter before us.

A default judgment never was sought in this matter for the failure of Fluor Daniel to respond

to the second amended complaint. Also, the plaintiffs can show no prejudice because Fluor

Daniel pleaded the statute of limitations in its original answer.

¶33. Because the plaintiffs can show no prejudice from the trial court’s decision to allow

Fluor Daniel to amend its answer, and the trial judge did not abuse his discretion in basing

his ruling on Presley, we affirm the trial court’s ruling as to this issue.

IV.

¶34. Finally, the plaintiffs complain that the trial court allowed the defendants to propound

initial discovery (interrogatories and requests for production) in January 2008 – more than

four years after the litigation had commenced. The plaintiffs claim they never before had

been served a request for interrogatories and production of documents, and further assert that

the defendants offered no justification for the delay.

¶35. The plaintiffs filed a motion for a protective order with the trial court, which was

denied as moot. The order pointed out that the motion had been filed prior to the grant of

summary judgment, and that accordingly “no trial would be necessary.” The trial court then

reasoned that the relief sought by the plaintiffs “is moot.” Therefore, this argument is

without merit.

14 CONCLUSION

¶36. In conclusion, the trial court did not abuse its discretion in concluding that the

defendant did not waive its statute-of-limitations defense. Furthermore, intentional infliction

of emotional distress is of like kind or classification as the torts enumerated in Mississippi

Code, Section 15-1-35, and is therefore barred by a one-year statute of limitations. The trial

court did not abuse its discretion in allowing the defendant to file an untimely-amended

answer, nor did it abuse its discretion in dismissing the plaintiffs’ motion for a protective

order as moot. Therefore, the trial court is affirmed on all issues.

¶37. AFFIRMED.

WALLER, C. J., CARLSON, P.J., RANDOLPH, AND CHANDLER, JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KITCHENS, JJ. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.; DICKINSON, J., JOINS IN PART.

DICKINSON, JUSTICE, DISSENTING:

¶38. With great respect for my colleagues in the majority, I am compelled to record my

view that the tort of intentional infliction of emotional distress clearly is not subject to the

one-year statute of limitations imposed by Section 15-1-35 of the Mississippi Code – a code

section which specifically lists the intentional torts to which it applies. Miss. Code Ann. §

15-1-35 (Rev. 2003). Because the statute’s list does not include the tort, and because this

Court consistently has held that statutes of limitations are to be strictly construed, I must

respectfully dissent.

15 ¶39. It should not be surprising that I turn first to the statute’s language. Section 15-1-35

reads as follows:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

Miss. Code Ann. § 15-1-35 (Rev. 2003). It requires no analysis or particular legal insight to

observe that the tort of intentional infliction of emotional distress is not included in the

language chosen by the Legislature. Thus, the statute itself provides no support for the

majority’s holding.

¶40. While meager authority does exist for the majority’s position, this Court’s precedent

for the reverse proposition enjoys far more support. For instance, this Court previously has

stated that “intentional and/or negligent infliction of emotional distress claims are governed

by the three-year statute of limitations.” Norman v. Bucklew, 684 So. 2d 1246, 1248 (Miss.

1996). And in Nichols v. Tri-State Brick and Tile Co., Inc., 608 So. 2d 324 (Miss. 1992),

this Court held that the plaintiff’s claims were “not time barred by application of § 15-1-35

because its claims are not fairly embodied in any of the causes there enumerated,” and further

stated that “[e]ven a casual reading of the statute leads inescapably to the conclusion that it

does not cover, and was not intended to cover, all intentional tortious conduct.” Nichols, 608

So. 2d at 332-333. The Nichols Court further asserted, “[w]e will not squeeze all intentional

wrongs into the actions enumerated,” and pointed out that:

[t]his Court has ‘consistently held in many cases . . . that where a statute enumerates and specifies the subject of things upon which it is to operate, it is

16 to be construed as excluding from its effect all those not expressly mentioned or under a general clause, those not of like kind or classification as those enumerated.’

Id. (quoting Sw. Drug Co. v. Howard Bros. Pharmacy of Jackson, Inc., 320 So. 2d 776, 669

(Miss. 1975)) (emphasis added).

¶41. As the majority notes, this Court has been inconsistent in its rulings on whether

intentional-infliction-of-emotional-distress claims are subject to a one-year statute of

limitations under Mississippi Code Section 15-1-35. In support of its view, the majority cites

three cases: Southern v. Miss. State Hosp., 853 So. 2d 1212, 1214 (Miss. 2003); Pierce v.

Cook, 992 So. 2d 612 (Miss. 2008); Citifinancial Mortg. Co., Inc. v. Washington, 967 So.

2d 16, 19 (Miss. 2007). Maj. Op. at ¶ 20. As easily can be seen, these cases enjoy far more

prestige in the majority’s analysis than their respective holdings suggest they should.

¶42. In Southern, this Court said nothing about whether Section 15-1-35's one-year statute

of limitations applied to a claim of intentional infliction of emotional distress. Instead, the

Southern Court analyzed the plaintiff’s intentional-infliction-of-emotional-distress claim

pursuant to the Mississippi Tort Claims Act’s one-year statute of limitations. Southern, 853

So. 2d at 1214-16. Thus, Southern provides no authority for the majority’s proposition.

¶43. In Pierce, this Court analyzed the underlying tort which gave rise to the claim of

intentional infliction of emotional distress as an intentional tort. While the Court did, in

dicta, indicate that the statute of limitations for claims of intentional infliction of emotional

distress was one year, the analysis was based on whether the tort at issue was a continuing

tort. Furthermore, the majority in Pierce cited no authority whatsoever from this Court for

17 the proposition that claims of intentional infliction of emotional distress are subject to a one-

year statute of limitations. Pierce, 992 So. 2d at 618-20.

¶44. Finally, in Washington, the Court incorrectly cited Southern for the proposition that

intentional-infliction-of-emotional-distress claims are subject to a one-year statute of

limitation under Section 15-1-35. Washington, 967 So. 2d at 19. As previously stated, the

Southern Court analyzed the limitations period under the Mississippi Tort Claims Act, rather

than Section 15-1-35.2

¶45. In order to scrap together support for its weak position, the majority cites nonbinding

federal interpretation. Even so, there are federal cases going both ways. See, e.g. Hubbard

v. Miss. Conference of United Methodist Church, 138 F. Supp. 2d 780 (S.D. Miss. 2001),

dismissed, 31 Fed. Appx. 153 (5th Cir. 2001).

¶46. The confusion as to whether Section 15-1-35 applies to claims of intentional infliction

of emotional distress stems from this Court’s opinion in City of Mound Bayou v. Johnson,

562 So. 2d. 1212, 1217 (Miss. 1990), in which this Court held:

Our cases suggest the statute's force is not limited to the eight torts labeled therein. Bush v. City of Laurel, 234 Miss. 93, 103, 105 So. 2d 562, 566 (1958) says the statute includes torts “of the type enumerated” in the statute. Dennis v. Travelers Insurance Co., 234 So. 2d 624, 626 (Miss.1970) is more expansive, holding that the statute “provides an inclusive listing of the recognized intentional torts.” Southern Land & Resources Co., Inc. v. Dobbs, 467 So.2d 652, 654 (Miss.1985) repeats the point. If this be so, the

2 The Court in Washington pin-cited language from Southern that was quoted directly from the trial court’s order for the proposition that intentional-infliction-of emotional- distress claims were subject to a one-year statute of limitations pursuant to Section 15-1-35, and not language from this Court’s analysis. Washington, 967 So. 2d at 19; Southern, 853 So. 2d at 1214.

18 proscription of the statute necessarily extends beyond the tort labels specifically appearing, for but a moment's reflection calls to mind any number of intentional tort actions recognized in Mississippi law which are not enumerated as such in Section 15-1-35. . . . The better view is that statute extends to all actions substantially like unto the enumerated eight and for which no specific statute has been provided.

However, as was true in Washington, the position asserted by this Court in its curious

opinion in City of Mound Bayou was wholly unsupported by the cases cited therein. In fact,

quite the opposite is true.

¶47. In Bush, the Court stated: “A casual reading of Code Section 732, supra, readily

reveals that the present action of the appellants is not of the type enumerated in said Code

section and that said Code section is, therefore, not applicable.” Bush, 234 Miss. 93, 103,

105 So. 2d 562, 566 (1958) (emphasis added). The Dennis Court found that the claim at

issue in that matter was “menace,” although not labeled as such in the complaint, and was

therefore subject to a one-year statute of limitations because menace is one of the enumerated

torts in Section 15-1-35. Dennis, 234 So. 2d at 626-627.

¶48. Finally, the Southern Land & Resources Court held the precise opposite of what the

City of Mound Bayou Court claimed it held. The Southern Land & Resources Court said:

“From a review of the legislative history it is apparent that the policy of providing a one-year

statute of limitations for listed intentional torts. . . . has been perpetuated in this state.” S.

Land & Res., 467 So. 2d at 655. The Court went on to hold that Section 15-1-35 did not

apply to an action for damages for wrongful foreclosure, but rather the six-year “catch-all”

limitations period found in Mississippi Code Section 15-1-49 applied. Id.

19 ¶49. To reach this conclusion, the majority seizes upon the “of like kind or classification”

language found in Southwest Drug Company and quoted in Nichols, while ignoring the

preceding “under a general clause” requirement. The majority’s attempt to construe the

intentional-infliction-of-emotional-distress claim as one “fairly embodied” in Section 15-1-

35 offends the century-old rule that, when a statute “is plain and unambiguous . . . [i]t is not

within the province of this [C]ourt to add to the law as the Legislature has written it.” City

of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 891 (1910). What is plain and

unambiguous from a reading of Section 15-1-35 is that intentional infliction of emotional

distress is simply not included.

¶50. For that reason stated herein, I respectfully dissent.

LAMAR AND KITCHENS, JJ., JOIN THIS OPINION.

KITCHENS, JUSTICE, DISSENTING:

¶51. I fully concur with Justice Dickinson’s well-reasoned dissent. The torts to which a

one-year statute of limitations applies are specifically designated by state statute, and

intentional infliction of emotional distress is not one of them. Miss. Code Ann. § 15-1-35

(Rev. 2003). In order to add intentional infliction of emotional distress to the statute’s list,

it was necessary for the majority to apply non-binding federal case law.

¶52. However, even if a one-year statute of limitations applied, this defense was waived;

it cannot be credibly argued that Fluor Daniel did not know the plaintiffs were raising an

intentional infliction of emotional distress claim until this Court rendered its opinion.

Although the complaint was inartfully drafted, this claim was squarely at issue and

20 thoroughly argued on the defendant’s first motion for summary judgment. In their response

to the first motion for summary judgment, filed December 14, 2004, the plaintiffs argued that

they had “demonstrated a viable cause of action on a theory of infliction of emotional

distress,” and cited two cases which directly address intentional infliction of emotional

distress claims, Lee v. Golden Triangle Planning and Development District, Inc., 797 So.

2d 845 (Miss. 2001), and Brown v. Intercity Federal Bank for Saving, 738 So. 2d 262

(Miss. Ct. App. 1999). At the summary judgment hearing, the attorney for the plaintiffs

specifically argued that they were pursing a claim for “intentional infliction of emotional

distress,” and there was no objection from Fluor Daniel on this point. The order granting

summary judgment refers to “tortious infliction of emotional distress,” and cites Pegues v.

Emerson Electric Company, 913 F. Supp. 976, 982 (N.D. Miss. 1996), a case defining

intentional infliction of emotional distress. Notably, this order was drafted by Fluor Daniel’s

attorney.

¶53. Therefore, the record indicates that Fluor Daniel was fully aware that the plaintiffs

were asserting a claim for intentional infliction of emotional distress, and at no point did

Fluor Daniel object. Even when the case was here on the first appeal, one of the issues Fluor

Daniel argued in its brief was “whether the circuit court properly granted FDSC summary

judgment on the plaintiffs’ claims for intentional infliction of emotional distress.” Again,

Fluor Daniel never argued that it was unaware of such a claim, even in its second motion for

summary judgment, and it has raised the issue for the first time in the second appeal to this

Court. It is disingenuous, at best, for Fluor Daniel now to claim that intentional infliction of

21 emotional distress did not emerge as a claim until June 21, 2007, the date this Court issued

its opinion in the first appeal.

¶54. Under Mississippi Rule of Civil Procedure 15(b), a complaint is amended to add a

claim by implied consent of the parties, if the plaintiff raises the claim in response to a

motion for summary judgment, and the trial judge decides the issue on summary judgment

without an objection from the defendant. Prestwood v. Cook, 658 So. 2d 859, 861-62 (Miss.

1995). This is precisely what occurred in the instant case; and by failing to object to the

intentional infliction of emotional distress claim, Fluor Daniel implicitly consented to

litigation of this issue. Therefore, this claim was fully apparent to all parties and the trial

court by, at the latest, December 14, 2004, the date the plaintiffs filed their response to Fluor

Daniel’s first motion for summary judgment. It was not until three years later, on January

22, 2008, that the defendant raised the one-year statute of limitations issue for the first time.

Given the protracted delay in raising this affirmative defense, and Fluor Daniel’s active

participation in the litigation, Fluor Daniel acquiesced in the litigation of this issue and

waived the statute of limitations defense (assuming, arguendo, that the one-year statute of

limitations even applies). Miss. Credit Center, Inc. v. Horton, 926 So. 2d 167, 181 (Miss.

2006).

¶55. Yet, even if it could be legitimately argued that the defendant was first put on notice

of the intentional infliction of emotional distress claim on June 21, 2007, Fluor Daniel still

waited too long to raise the statute of limitations defense. In Horton, 926 So. 2d at 181, this

Court held that an eight-month delay was too long:

22 [A]bsent extreme and unusual circumstances[,] an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.

The majority makes no attempt to distinguish Horton from the present case or to explain why

a seven-month delay is any different from an eight-month delay when it comes to asserting

an affirmative defense.

¶56. Thus, while I agree with Justice Dickinson that the statute of limitations for intentional

infliction of emotional distress is three years, I also find Fluor Daniel waived this defense by

waiting so long to raise the issue. For these reasons, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION. DICKINSON, J., JOINS THIS OPINION IN PART.