Smith v. White

799 So. 2d 83, 2001 WL 1288808
CourtMississippi Supreme Court
DecidedOctober 25, 2001
Docket1999-CT-00455-SCT
StatusPublished
Cited by13 cases

This text of 799 So. 2d 83 (Smith v. White) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. White, 799 So. 2d 83, 2001 WL 1288808 (Mich. 2001).

Opinion

799 So.2d 83 (2001)

Petesy SMITH
v.
Tammy WHITE.

No. 1999-CT-00455-SCT.

Supreme Court of Mississippi.

October 25, 2001.
Rehearing Denied March 13, 2001.

*84 Charles R. Wilbanks, Jr., Kimberly Pine Turner, Barry C. Campbell, Jackson, for Appellant.

Robert H. Pedersen, Jackson, for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Justice, for the Court:

¶ 1. Petesy Smith in this defamation case raises questions concerning slander per se, qualified privilege and malice. The jury answered most of these questions in favor of the plaintiff Petesy Smith, however neither Smith nor the defendant Tammy White was satisfied with the jury verdict, and both appealed. The Court of Appeals found that the jury's verdict in favor of Smith was not justified and rendered judgment in favor of White. We granted certiorari, and after consideration we find that the judgment of the Court of Appeals should be reversed. We further find that the jury's verdict should be reinstated, and the matter remanded to the Warren County Circuit Court for further proceedings.

FACTS

¶ 2. The following statement of facts is taken from the opinion of the Court of Appeals:

[Petesy] Smith has a long history of service as a volunteer in various organizations involved in protecting children's well-being. One such activity was her work as a volunteer child advocate in the Child Advocate Program (CAP), an organization funded through private grants, donations, fund-raisers, and grants from state and local governmental organizations. Under that program, volunteers agreed to serve, on a case-bycase basis, as "advocates" for children involved in Youth Court proceedings or coming under the purview of the Department of Human Services (DHS), in the hope that these volunteers can provide a helpful but dispassionate voice in any such proceeding on the child's behalf. In addition to her duties as a child advocate in the CAP program, Smith also served as local chairperson for an unrelated organization known as the Warren County Family Advocacy Committee. Her duties in that position were more general, since the focus of that organization's mission was to seek systemic changes in the treatment of children coming under the eye of public authorities rather than undertaking to intervene in a particular child's case. The proof is uncontradicted that, in her role as chairperson for the Warren County Family Advocacy Committee, Smith was at times critical of the operation of the local DHS, and was, in fact, often quite outspoken in her criticism.
[Tammy] White served as director for the Child Advocate Program (CAP) and, in that capacity, was responsible for supervising all volunteer child advocates. After being shown information by an *85 employee of DHS that indicated that Smith was representing herself as the designated advocate in a particular child's case when, in fact, she was not, White returned to CAP offices and had a conversation about the matter with Walley Flowers, who was at the time acting as president for CAP. The conversation turned to the question of how a form generated in the CAP offices that had made its way into a DHS file could incorrectly show Smith as the designated advocate for this particular child. White called in Angela Carpenter, who worked as a clerical employee for CAP, and requested that she pull the file in order to investigate the matter further. During the course of the conversation, White speculated aloud as to how Smith's name could have gotten into the file as the child's advocate and remarked that Smith did have a key to the offices. However, immediately upon the file being pulled, it was discovered that another volunteer performing clerical duties had mistakenly listed Smith on the form in question as the child's designated advocate.
Nevertheless, because of other concerns regarding Smith's activities in her dual roles, White testified that she had become convinced that it was not in the best interest of CAP for Smith to continue acting as volunteer advocate. White expressed two basic concerns in her decision to sever Smith's participation. First, she expressed concern that Smith's open criticism of local DHS employees' performance could hamper her ability to work closely with those same DHS employees as an advocate on behalf of a particular child. Secondly, she was concerned that Smith would have the opportunity to use information gained while serving as a child advocate as evidence to support her general complaints against the local DHS that she was making at the state level.
After her decision to end Smith's participation as a child advocate volunteer, there was a meeting of the CAP Executive Committee to discuss White's decision. White informed those present of the circumstances surrounding her decision and, in the course of reporting the facts, informed the members of her remark to Walley Flowers about Smith having a key to the CAP offices. At that same meeting, White distributed to all present a written summary of her recollection of the critical events, which included a complete recitation of the facts as to how Smith's name had incorrectly but inadvertently been listed as the designated advocate for the particular child in question.
. . . .
The trial court, after hearing the evidence, determined that all of White's statements were made in the course of her official duties as director of CAP and were made to others engaged in their capacity as executive committee members. As such, the trial court ruled as a matter of law that White's statements were subject to a qualified privilege that shielded White from liability for her statements unless Smith could prove that the statements were made with malice. The jury was instructed accordingly and returned a verdict for Smith in the amount of $5,000 plus court costs of $1,565.06.

Smith v. White, No.1999-CA-00455-COA, ¶¶ 4-7, 13 (Miss.Ct.App. Jan. 9, 2001)

¶ 3. Petesy Smith appealed from the circuit court judgment, and Tammy White cross-appealed. The Court of Appeals, in a 7-1 decision, with two Judges not participating, reversed and rendered. The Court of Appeals found that Tammy White, as CAP director, had a qualified privilege to *86 make the remarks that she made. The Court of Appeals next found that White's remark that Smith had a key to the CAP offices was not slanderous because, first, it was true, and second, there was insufficient evidence to show that the remark was intended to impute a criminal act to Smith or that it was capable of being understood and was understood by those who heard it to charge Smith with committing a criminal act. The Court of Appeals finally found that there was insufficient evidence to show that Smith was defamed by remarks by White to the effect that Smith's criticism of the DHS could harm her ability to work with the DHS social worker that might be assigned to a child that Smith was concerned with.

¶ 4. On certiorari Petesy Smith argues that the statements in question were not subject to a qualified privilege, that the statements were slanderous per se and that the jury's finding of malice on behalf Tammy White required the issue of punitive damages to be submitted to the jury.

DISCUSSION

I. The COA erred in substituting its judgment for the judgment of the circuit court and jury.

¶ 5. Petesy Smith first cites several cases, including Long v. Harris, 744 So.2d 839 (Miss.Ct.App.1999); Downtown Grill, Inc. v. Connell, 721 So.2d 1113 (Miss.1998); Sessums v.

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Cite This Page — Counsel Stack

Bluebook (online)
799 So. 2d 83, 2001 WL 1288808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-white-miss-2001.