Edward Springer v. Ausbern Construction Co., Inc.

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2014-CT-01190-SCT

EDWARD SPRINGER

v.

AUSBERN CONSTRUCTION CO., INC.

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 05/08/2014
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: REX F. SANDERSON
BARRETT JEROME CLISBY
ATTORNEYS FOR APPELLEE: MARK D. HERBERT
SABRINA BOSARGE RUFFIN
BRADFORD COLEMAN RAY
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 10/19/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. A Lafayette County jury awarded Ausbern Construction Company, Inc. (Ausbern) a

verdict of $182,500 against Chickasaw County Engineer Edward Springer in his individual

capacity for tortious interference with a road-construction contract. On appeal, the

Mississippi Court of Appeals reversed the $182,500 judgment and rendered judgment in

favor of Springer. Springer v. Ausbern Constr. Co., Inc., 2016 WL 4083981, at *1 (¶ 1)

(Miss. Ct. App. Aug. 2, 2016). The Court of Appeals held that the element of tortious
interference that constitutes malice was not satisfied because Springer’s actions were not

without right or justifiable cause. Id.

¶2. Although the lack of evidence demonstrating malice was dispositive to the decision

to reverse and render, a majority of the Court of Appeals alternatively held that Ausbern’s

claim against Springer had implicated the Mississippi Tort Claims Act and the trial court had

erred by failing to grant Springer’s motion to dismiss due to lack of presuit notice. Id. Our

review of the record does not support the Court of Appeals’ conclusion that Springer raised

the issue of presuit notice in his motion to dismiss. Although Springer raised lack of notice

as an affirmative defense in his answer to Ausbern’s first amended complaint, he simply

argued that he was entitled to immunity in support of his motion to dismiss. While we do

not disturb the dispositive holding reached by the Court of Appeals resulting in the rendered

judgment in favor of Springer, we grant Ausbern’s petition for writ of certiorari resolve the

Court of Appeals’ perceived conflict between Zumwalt v. Jones County Board of

Supervisors, 19 So. 3d 672 (Miss. 2009), and Whiting v. University of Southern Mississippi,

62 So. 3d 907 (Miss. 2011).

¶3. In short, we hold that Whiting did not overrule, sub silentio, Zumwalt as the Court

of Appeals presumed in reaching its alternative holding. See Springer, 2016 WL 4083981,

at *5 (¶ 22). To be certain, we overrule Whiting to the extent it held that a claim for tortious

interference with a contract is subject to presuit notice requirements of the Tort Claims Act.

As more fully explained below, Ausbern’s claim against Springer in his individual capacity

for tortious interference with the contract did not trigger the presuit notice requirements of

2
the Tort Claims Act.

FACTS AND PROCEDURAL HISTORY

¶4. In November 2010, Ausbern was awarded a contract with Chickasaw County for a

road-construction project. Ausbern’s low bid for the contract was based on unit

specifications prepared by the office of Chickasaw County’s engineer, Springer. Springer

had estimated that 7,689 cubic yards of 304A fill material would be required. The project

actually required 17,700 cubic yards of the unit material.

¶5. On January 23, 2012, Ausbern filed a formal claim for payment for the overage with

the State Aid Office. On February 2, 2012, State Aid Division Engineer Joel Bridges sent

a letter to Springer, acknowledging the error of the estimated quantity of the unit material.

Bridges recommended payment to Ausbern for 17,700 cubic yards of the unit material at the

contract price per unit. On March 1, 2012, Springer sent a letter to Ausbern admitting the

discrepancy between the estimated amount of unit material and the unit material actually used

for the project. In an effort to mitigate Ausbern’s claim for the contract adjustment, Springer

offered Ausbern eight dollars per cubic yard for the overage rather than the contract unit

price of $19.50. Ausbern declined to negotiate.

¶6. On March 29, 2012, Ausbern filed a complaint against the Board of Supervisors of

Chickasaw County, alleging breach of contract. On July 12, 2012, Ausbern filed an amended

complaint adding Springer as a defendant in his individual capacity for tortious interference

with the contract. Ausbern alleged that a binding contract existed between Ausbern and the

County as of November 23, 2010. Ausbern alleged that Springer, who had knowledge of the

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contract, intentionally, willfully, and with malice toward Ausbern induced the County to

breach its contractual obligations. On August 15, 2012, Springer filed an answer to the

amended complaint, arguing that Ausbern had not complied with the notice requirements of

the Tort Claims Act.

¶7. The jury awarded Ausbern $387,793.50 against the County for breach of contract.

The County did not appeal the judgment. The jury awarded Ausbern $182,500 against

Springer for tortious interference with the contract. Springer appealed following the trial

court’s denial of his motion for judgment notwithstanding the verdict (JNOV) or,

alternatively, for a new trial.

¶8. On appeal, the Court of Appeals reversed the $182,500 judgment against Springer and

rendered judgment because the element of tortious interference that constitutes malice was

not satisfied. Springer, 2016 WL 4083981, at **1, 5 (¶¶ 1, 22). A unanimous Court of

Appeals held that

Springer acted within the scope of his responsibility to the County and without
bad faith. Because his actions were not “without right or justifiable cause,” the
element of tortious interference that constitutes malice was not satisfied.

Springer, 2016 WL 4083981, at *1. Despite Ausbern’s claim against Springer for tortious

interference with the contract failing as a matter of law due to no evidence of malice, an

essential element of the tort, the Court of Appeals proceeded to address a separate issue not

necessary to its decision.

¶9. According to a majority of the Court of Appeals,

Springer argued pretrial in his motion to dismiss and argues again here on
appeal that the tortious-interference claim against him as a governmental

4
 employee implicated the Mississippi Tort Claims Act and that Ausbern was
therefore required to comply with the Act’s pre-suit notice requirements. See
Miss. Code Ann. § 11–46–11(1) (Rev. 2012); Ivy v. E. Miss. State Hosp., 191
So. 3d 120, 122 (¶ 8) (Miss. 2016). We agree with Springer’s argument that
the notice requirements of the Mississippi Tort Claims Act are applicable to
the claim against him.

Springer, 2016 WL 4083981, at *4 (¶ 17).

¶10. Relying on language from Whiting, the majority took the position “that claims of

tortious interference with a contract brought against an individual governmental employee

implicate the pre-suit notice requirements of the [Tort Claims Act].” Id. at *4 (¶ 18) (citing

Whiting, 62 So. 3d at 915 (¶ 15)). The majority held that the claim against Springer

implicated the Tort Claims Act, and that Springer’s motion to dismiss due to lack of presuit

notice should have been granted. Id. at *1 (¶ 1). The majority ultimately concluded that,

“[a]bsent resolution of any conflict between [Whiting and Zumwalt] by the Mississippi

Supreme Court, we agree with the approach of treating Whiting as the applicable rule.”

Springer, 2016 WL 4083981, at *5 (¶ 22). And because “the prerequisite of statutory

pre-suit notice was not attempted, [] waiver of sovereign immunity was not accomplished.”

Id.

¶11. In contrast, Judge Wilson’s separate opinion1 urged that, “by proceeding against

Springer individually without serving notice under the [Tort Claims Act], Ausbern was

simply following the clear holding of the Mississippi Supreme Court’s opinion in Zumwalt

v. Jones County Board of Supervisors, 19 So. 3d 672 (Miss. 2009).” Springer, 2016 WL

1
Chief Judge Lee, Presiding Judge Griffis, and Judge Fair joined in Judge Wilson’s
separate opinion.

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4083981, at *6 (¶ 26) (Wilson, J., concurring in part and in result). Following Zumwalt,

Judge Wilson determined that “Ausbern properly sued Springer ‘as an individual’ on a

non-[Tort Claims Act] claim for tortious interference with a contract—indeed, per Zumwalt,

Ausbern was required to pursue the claim on that basis.” Id. at *6 (¶ 27). Judge Wilson

concluded that, because malice is an essential element of a claim for tortious interference

with a contract, the County was immune from liability for any alleged tortious interference

by Springer, and Ausbern properly proceeded against Springer individually rather than

serving presuit notice2 on the County. Id. at *7 (¶ 28). Judge Wilson relied on Zumwalt

because it followed directly and logically from the plain language of the Tort Claims Act, but

he agreed with the majority that Whiting “appears to conflict with Zumwalt insofar as it

suggests that a claim for tortious interference with a contract is subject to the [Tort Claims

Act].” Id. at *7 (¶ 29).

¶12. While the lack of proof of malice was case-dispositive, we grant certiorari to clarify

whether Whiting overruled, sub silentio, Zumwalt’s holding that a claim for tortious

interference with a contract is not subject to the Tort Claims Act’s presuit notice

requirements.

STANDARD OF REVIEW

¶13. “When considering a motion to dismiss, this Court’s standard of review is de novo.”

Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 1275 (¶ 6) (Miss. 2006).

DISCUSSION

2
It is undisputed that Ausbern did not provide presuit notice under the Tort Claims
Act. Springer, 2016 WL 4083981 at **2, 7 (¶¶ 7, 28).

6
 Whether Ausbern’s claim for tortious interference with a contract was
subject to the presuit notice requirements of the Tort Claims Act.

¶14. The Tort Claims Act provides immunity for the state and its political subdivisions

“from suit at law or in equity on account of any wrongful or tortious act or omission or

breach of implied term or condition of any warranty or contract, including but not limited to

libel, slander or defamation, by the state or its political subdivisions, or any such act,

omission or breach by any employee of the state or its political subdivision[.]” Miss. Code

Ann. § 11-46-3(1) (Rev. 2012). The Tort Claims Act waives immunity for the state and its

political subdivisions “from claims for money damages arising out of the torts of such

governmental entities and the torts of their employees while acting within the course and

scope of their employment[.]” Miss. Code Ann. § 11-46-5(1) (Rev. 2012).

¶15. “An employee may be joined in an action against a governmental entity in a

representative capacity if the act or omission complained of is one for which the

governmental entity may be liable, but no employee shall be held personally liable for acts

or omissions occurring within the course and scope of the employee’s duties.” Miss. Code

Ann. § 11-46-7 (Rev. 2012). However, “an employee shall not be considered as acting

within the course and scope of his employment and a governmental entity shall not be liable

or be considered to have waived immunity for any conduct of its employee if the employee’s

conduct constituted fraud, malice, libel, slander, defamation[.]” Miss. Code Ann. §

11-46-5(2) (Rev. 2012).

¶16. Before Zumwalt and Whiting, the Court decided McGehee v. DePoyster, 708 So. 2d

77 (Miss. 1998). In McGehee, an elementary school principal brought a defamation action

7
against the superintendent of the school district both individually and in his official capacity.

Id. at 78 (¶ 1). As in the case sub judice, the issue before the Court was whether the Tort

Claims Act’s notice provision of Mississippi Code Section 11-46-11(1) (Rev. 2012) was

applicable to actions brought against a government employee in his individual capacity. Id.

at 79 (¶ 8). Section 11-46-11(1) requires a person to file a notice of claim with the chief

executive officer of the governmental entity at least ninety days before instituting suit. Miss.

Code Ann. § 11-46-11(1) (Rev. 2012).

¶17. The Court examined the pertinent provisions of the Tort Claims Act and concluded

that “Sections 11–46–5(2) and 11–46–7(2) expressly provide that an employee shall not be

considered as acting within the scope and course of his employment for conduct amounting

to defamation, libel and slander, the very charges brought by [the plaintiff] against [the

government employee defendant].” Id. at 81 (¶ 11). The Court did “not construe [Section]

11–46–11(1) as requiring notice to [the government employee defendant] or other

government authorities of suit brought against him individually for acts outside of the scope

of his employment.” Id.

¶18. The Court held that “an action against a government employee in his individual

capacity may be subject to notice of claim requirements if the act complained of occurred

within the scope and course of his employment[.]” Id. at 80 (¶ 10) (“Where the plaintiff

elects to sue the governmental employee in her individual capacity, notice is required only

if the act or omission causing the plaintiff’s loss is within the scope of the defendant’s

employment.”)). Accordingly, the Court concluded that the “notice provisions of [Section]

8
11-46-1(1) [were] not applicable to a government employee sued in his individual capacity

for actions not within his scope of employment[.]” Id. at 78 (¶ 1).

¶19. In Zumwalt, Donna Zumwalt asserted counterclaims for tortious interference with

contracts and business relations against the Jones County Board of Supervisors. Zumwalt,

19 So. 3d at 688 (¶ 79). The trial court found that her claims were not properly before it

because Zumwalt had failed to comply with the Tort Claims Act’s notice provision of Section

11-46-11 before she had asserted her counterclaim. Id. at 688 (¶ 80).

¶20. The Court held: “[w]ith respect to the claim of tortious interference with business

relations and/or contracts, the [Tort Claims Act] does not apply.” Zumwalt, 19 So. 3d at 688

(¶ 81). The Court explained:

The [Tort Claims Act] provides immunity for the alleged torts of governmental
entities. Miss. Code Ann. § 11–46–3 (Rev. 2002). However, the [Tort Claims
Act] waives that immunity, and the governmental entity is liable, for injuries
caused by the entity or its employees while acting in the course and scope of
their employment. Miss. Code Ann. § 11–46–5(1) (Rev. 2002).

Certain intentional torts are excluded from the [Tort Claims Act]’s waiver of
immunity. Subsection (2) of Mississippi Code Section 11–46–5 provides that
torts constituting fraud, malice, libel, slander, defamation, or any criminal
offense other than traffic violations are not within the course and scope of
employment. Miss. Code Ann. § 11–46–5(2) (Rev. 2002). Thus, these
intentional torts are outside the scope of the [Tort Claims Act]’s waiver of
immunity, and the [Tort Claims Act] does not apply.

Tortious interference with business relations and contracts requires proof of
malice as an essential element. Par Industries, Inc. v. Target Container Co.,
708 So. 2d 44, 48 (Miss. 1998), and Biglane v. Under the Hill Corp., 949 So.
2d 9, 16 (Miss. 2007). Therefore, the [Tort Claims Act] does not apply to
these torts, and any legal action against a governmental employee for these
intentional torts must necessarily proceed against him or her as an individual.

Zumwalt, 19 So. 3d at 688 (¶¶ 81-84).

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¶21. The Court held that, to the extent the trial court had determined that notice was

required before pursuing claims of tortious interference with either business relations or

contracts, it was error, albeit harmless error because there were no facts to support Zumwalt’s

claims. Id. at (¶ 85).

¶22. Less than two years after Zumwalt, the Court decided Whiting. Whiting, 62 So. 3d

907. In Whiting, a nontenured professor at the University of Southern Mississippi, Dr.

Melissa Whiting, was denied tenure and promotion at the end of her sixth year at the

university after participating in the tenure application process laid out in the faculty

handbook.3 Dr. Whiting filed a complaint, alleging that the denial arose from ill will between

her and her department chair, Dr. Dana Thames, the daughter of the university president, Dr.

Shelby Thames. Whiting v. Univ. of S. Miss., 451 F.3d 339, 340 (5th Cir. 2006). Dr.

Whiting complained of violations of her constitutional rights and also raised “breach of

contract and other claims under state law.” Id. at 343. The case was removed to federal

district court, which dismissed her constitutional claims on a motion for summary judgment

and remanded the state-law claims to state court. Id. The state trial court dismissed Dr.

Whiting’s claims against the Mississippi Board of Trustees of Institutions of Higher

Learning, the University of Southern Mississippi, Dr. Shelby Thames, Dr. Dana Thames, and

Dr. Carl Martray.4 Whiting, 62 So. 3d at 910 (¶1). Dr. Whiting appealed, and the Court

3
Additional factual and procedural background information is derived from Whiting
v. University of Southern Mississippi, 451 F.3d 339, 352 (5th Cir. 2006) (affirming the
district court’s order remanding Dr. Whiting’s pendent state-law claims to state court)).
4
Dr. Martray was the Dean of the College of Education and Psychology.

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affirmed. Id.

¶23. The Court held that, as a matter of law, no contract was formed between Dr. Whiting

and the Board with respect to an offer of tenure to the extent that Dr. Whiting’s claims were

based purely upon a breach of contract theory. Id. at 915 (¶ 13). Although the Court made

no mention of Zumwalt, McGehee, or malice as an essential element of tortious interference

with a contract, the Court said:

At the core, Dr. Whiting’s argument, to the extent that it makes out a specific
claim for relief, is that her contract with the Board, as memorialized in the
handbook, guaranteed a fair and impartial hearing with respect to her tenure
application, and the defendants denied her that opportunity. While [Dr.
Whiting] attempts to characterize [her] claims as breach of contract, a fair
reading of the facts of this case and the manner in which [she] lays out her
argument establish that if there were a claim to be made, it would be for
tortious breach of contract and tortious interference with contract. As such, the
claims made against the Board or the university are governed by the provisions
of the [Tort Claims Act].

Whiting, 62 So. 3d at 915 (¶ 15).

¶24. The Court acknowledged that the Board was “immune from suit at law or in equity

on account of any wrongful or tortious act or omission or breach of implied term or condition

of any warranty or contract[.]” Id. at 915 (¶ 16) (quoting Miss. Code Ann. § 11-46-3(1)).

The Court continued: “We have interpreted the phrase ‘any wrongful or tortious act or

omission or breach of implied term or condition of any warranty or contract’ to mean that the

[Tort Claims Act] covers both tortious breaches of contract and breaches of implied terms

and warranties of a contract.” Whiting, 62 So. 3d at 916 (¶ 17) (citing City of Jackson v.

Estate of Stewart ex rel. Womack, 908 So. 2d 703, 710 (Miss. 2005)).

¶25. The Court noted that the Tort Claims Act provides a limited waiver of immunity for

11
claims arising from tortious acts of governmental agencies and their employees. Whiting,

62 So. 3d at 916 (¶ 16). However, the Court also noted that the Tort Claims Act provides

that a notice of claim must be brought only after all administrative remedies have been

exhausted. Id. at 916 (¶ 17) (citing Miss. Code Ann. § 11-46-11). The Court recognized that

the failure to complete the internal grievance process for an alleged wrongful termination

does not satisfy the requirement that administrative appeals be exhausted for purposes of the

Tort Claims Act. Id. Because Dr. Whiting failed to wait for a final decision by the Board

regarding approval of her application for tenure prior to filing suit, the Court held: “[Dr.

Whiting’s] claims based on tortious conduct in general, tortious breach of contract in

particular, and breach of an implied contractual term or warranty are foreclosed by her failure

to adhere to the requirement of the Mississippi Tort Claims Act that all administrative

remedies be exhausted prior to filing suit.” Id. at 919 (¶ 31).

¶26. Following Whiting, conflicting decisions have arisen in the federal courts and the

Court of Appeals regarding whether malice-based torts are subject to the Tort Claims Act.

See Dearman v. Stone Cty. Sch. Dist., 2014 WL 3747600, at *2 (S.D. Miss. July 29, 2014)

(“While Whiting and Zumwalt may appear contradictory, the Mississippi Supreme Court in

Whiting did not reference or explicitly overrule Zumwalt. It is therefore unclear whether the

Mississippi Supreme Court intended for Whiting to overrule Zumwalt or whether the two

cases are somehow distinguishable. The apparent conflict between the two cases has led to

inconsistent decisions by federal district courts applying Mississippi law.”). For example,

in Weible v. University of Southern Mississippi, 89 So. 3d 51, 64 (¶ 40) (Miss. Ct. App.

12
2011), the Court of Appeals followed Zumwalt, holding that “to the extent intentional

infliction of emotional distress is predicated on malicious conduct, the claim would be

outside the scope of the [Tort Claims Act].” Likewise, the Court of Appeals recently

acknowledged that “because the Tort Claims Act expressly does not apply to claims for

defamation or slander, it necessarily follows that the Tort Claims Act’s notice provision does

not apply to [the plaintiff’s] slander claim.” Williams v. City of Belzoni, 2017 WL 908844,

at *4 (Miss. Ct. App. Mar. 7, 2017) (citing Zumwalt, 19 So. 3d at 688 (¶ 85); McGehee, 708

So. 2d at 79-81 (¶ 7-11)). To the contrary, the Fifth Circuit Court of Appeals followed

Whiting as “the latest and most authoritative expression of state law applicable to the facts

of a case.” Johnson v. City of Shelby, Miss., 743 F.3d 59, 64 (5th Cir. 2013), cert. granted,

judgment rev’d, 135 S. Ct. 346 (2014). The Fifth Circuit Court of Appeals held that former

police officers’ claims for malicious interference with their employment contracts were

barred for failure to comply with the Tort Claims Act’s notice requirements. Id. at 61, 64.

¶27. In the case sub judice, the Court of Appeals followed Whiting in reaching its

alternative holding, particularly, the language from Whiting indicating that claims for

tortious breach of contract and tortious interference with contract were governed by the

provisions of the Tort Claims Act. Springer, 2016 WL 4083981, at **4-5 (¶¶ 17-19, 22).

¶28. After reviewing the Court’s opinion in Whiting, we do not perceive the same conflict

between Whiting and Zumwalt as the Court of Appeals did. Significant differences are

apparent upon comparing the two decisions. To begin with, the decision in Whiting did not

turn on the presuit notice provision of the Tort Claims Act, therefore, any indication that a

13
claim for tortious interference with a contract is subject to the notice requirements of the Tort

Claims Act was mere dicta. The decision in Whiting turned on the exhaustion provision of

Section 11-46-11(1), which requires a claim to be brought only after all administrative

remedies have been exhausted. Whiting, 62 So. 3d at 916, 919 (¶¶ 17, 31).

¶29. Moreover, Dr. Whiting’s claims generally were described as “breach of contract and

other claims under state law.” Whiting, 451 F.3d at 343. The specific claims brought by Dr.

Whiting were not identified. Because “a fair reading of the facts of th[e] case and the

manner in which Dr. Whiting la[id] out her argument establish[ed] that if there were a claim

to be made,” the Court concluded that it “would be for tortious breach of contract and

tortious interference with contract.” Whiting, 62 So. 3d at 915 (¶ 15). The claims as framed

by the Court were then properly examined for Tort Claims Act application.

¶30. In order to constitute tortious breach of contract alleged by a plaintiff, “some

intentional wrong, insult, abuse, or negligence so gross as to constitute an independent tort

must exist.” Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 66 (¶ 39) (Miss.

2004). In contrast to tortious interference with a contract claim requiring proof of malice as

an essential element, a tortious breach of contract claim may be proven without proof of

malice. Id. Consequently, a tortious breach of contract claim may be subject to the presuit

notice requirements of the Tort Claims Act. See Zumwalt, 19 So. 3d at 689 (¶ 86)

(“Conversion, on the other hand, is an intentional tort that does not require proof of fraud,

malice, libel, slander, or defamation. Thus, conversion is an intentional tort arguably subject

to the Tort Claims Act, so pre-suit notice to the governmental entity of such a claim generally

14
is required.”)) (internal citations omitted). Despite mentioning a claim for tortious

interference with a contract, the Court’s remaining discussion focused on the relabeled

tortious breach of contract claim. Whiting, 62 So. 3d at 916 (¶ 16) (“We have interpreted the

phrase ‘any wrongful or tortious act or omission or breach of implied term or condition of

any warranty or contract’ to mean that the [Tort Claims Act] covers both tortious breaches

of contract and breaches of implied terms and warranties of a contract.”)) (citations omitted)

(emphasis added). Indeed, the Court’s holding emphasized that Dr. Whiting’s “claims based

on tortious conduct in general, tortious breach of contract in particular, and breach of an

implied contractual term or warranty [were] foreclosed by her failure to adhere to the [notice]

requirement of the [Tort Claims Act.]” Id. at 919 (¶ 31).

¶31. Like the uncertainty of the specific claims brought by Dr. Whiting, we can only

speculate as to whom Dr. Whiting’s claims were against. The only claims addressed by the

Court were against the Board and the university. Id. at 915 (¶ 15) (“As such, the claims

made against the Board or the university are governed by the provisions of the [Tort Claims

Act].”). Dr. Whiting’s claims against university employees in their individual capacities, if

any, were not discussed by the Court. We simply cannot say whether Dr. Whiting alleged

that certain individuals had acted outside their scope of employment, which would remove

them from the protections of the Tort Claims Act. See Zumwalt, 19 So. 3d at 688 (¶¶ 83-85);

McGehee, 708 So. 2d at 81 (¶ 11).

¶32. Because the facts and circumstances in Whiting differ from Zumwalt in a number of

significant ways, it is not necessary to overrule Whiting. As such, we hold that Whiting did

15
not overrule, sub silentio, Zumwalt or McGehee. However, due to the conflicting decisions

that have arisen in district courts and the Court of Appeals, we overrule Whiting to the extent

it held that a claim for tortious interference with a contract is subject to presuit notice

requirements of the Tort Claims Act.

¶33. In the case sub judice, Ausbern filed a complaint against Springer in his individual

capacity for tortious interference with the road-construction contract between the County and

Ausbern. “The [Tort Claims Act] provides specific exclusions to its protections and

requirements, and each claim must be examined for [Tort Claims Act] application.”

Zumwalt, 19 So. 3d at 688 (¶ 81). The Tort Claims Act waives immunity for injuries caused

by governmental employees while acting in the course and scope of their employment. Miss.

Code Ann. § 11-46-5(1). However, Section 11-46-5(2) provides that torts constituting malice

are not within the course and scope of employment.

¶34. Tortious interference with a contract requires proof of malice as an essential element.

Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (¶ 8) (Miss. 1998). As a result,

Ausbern’s claim for tortious interference with the road-construction contract against Springer

in his individual capacity was not subject to the Tort Claims Act’s presuit notice

requirements. McGehee, 708 So. 2d at 81 (¶ 11). Ausbern’s claim necessarily was brought

against Springer individually for acts allegedly outside the scope of his employment, and the

trial court properly denied Springer’s motion to dismiss due to lack of presuit notice. Id. In

light of the relevant provisions of the Tort Claims Act and the Court’s unequivocal decisions

in McGehee and Zumwalt, we hold that Ausbern’s claim against Springer in his individual

16
capacity for acts allegedly outside the scope of his employment are not subject to the presuit

notice requirements of Section 11-46-11(1).

CONCLUSION

¶35. We affirm the Court of Appeals’ judgment on the dispositive issue of no evidence of

malice, an essential element of a claim of tortious interference with a contract. However, for

the foregoing reasons, we hold that the Court of Appeals erroneously concluded that under

Whiting, Ausbern’s claim was subject to the presuit notice requirements of Section 11-46-

11(1).

¶36. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, BEAM AND
CHAMBERLIN, JJ., CONCUR. MAXWELL AND ISHEE, JJ., NOT
PARTICIPATING.

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