ERNEST T. JONES APPELLANT
MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING, ALCORN STATE UNIVERSITY, DARREN J. HAMILTON, PH.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND GEORGE E. ROSS, PH.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY APPELLEES
OF JUDGMENT: 07/11/2016
CLAIBORNE COUNTY CIRCUIT COURT HON. LAMAR PICKARD TRIAL JUDGE
ATTORNEYS FOR APPELLANT: JIM D. WAIDE III WAYNE E. FERRELL
ATTORNEYS FOR APPELLEES: ALAN M. PURDIE CHRISTOPHER H.
LEE, C.J., CARLTON AND WILSON, JJ.
In December 2008, Alcorn State University's head football
coach, Ernest Jones, sued the university. He alleged that
Alcorn had breached his contract and the implied covenant of
good faith and fair dealing in a number of ways, including by
firing seven of his assistant coaches and by failing to
provide necessary equipment for his team. Jones's
complaint also sought an injunction to prevent Alcorn from
firing him. The following month, Alcorn fired Jones. For the
next seven years, litigation continued in three different
cases until Jones's original lawsuit finally proceeded to
a jury trial. The jury found that Alcorn breached its implied
covenant of good faith and fair dealing and awarded Jones
damages of $500, 000. However, the circuit court granted
Alcorn's post-trial motion for judgment notwithstanding
the verdict (JNOV). Jones then appealed.
On appeal, Jones argues that the circuit court erred by
granting Alcorn's motion for JNOV. Jones also argues that
the circuit court erred by denying his pretrial motion to
amend his complaint, which prevented him from pursuing a
claim that Alcorn breached his contract by firing him without
cause. Finally, Jones argues that the circuit court erred by
dismissing his claim against Alcorn's former athletic
director for tortious interference with contract on the
ground that the claim was barred by the Mississippi Tort
Claims Act (MTCA).
We reverse and remand. First, we hold that Jones has a viable
claim for breach of the implied covenant of good faith and
fair dealing. However, that claim is subject to the MTCA.
Because Jones did not satisfy the MTCA's pre-suit notice
requirement, the claim must be dismissed without prejudice.
Jones may refile the claim, but it must be decided by the
circuit judge "without a jury," as required by the
MTCA. Miss. Code Ann. § 11-46-13(1) (Rev. 2012). Second,
we hold that Jones should have been allowed to pursue a claim
that Alcorn breached his contract by firing him without
cause. Third, we reverse the dismissal of Jones's claim
against Hamilton based on our Supreme Court's recent
decision in Springer v. Ausbern Construction Co.,
231 So.3d 980, 988-89 (¶¶32-35) (Miss. 2017), which
held that the MTCA does not apply to such a claim.
AND PROCEDURAL HISTORY
Jones played wide receiver for Alcorn in the mid-1990s and
graduated from the university in 1995. After graduation, he
briefly played arena and semi-pro football before going into
coaching. Jones eventually became an assistant coach at
Central Michigan University under head coach Brian Kelly.
When Kelly became the head coach at the University of
Cincinnati, Jones joined his staff at Cincinnati as the
running backs coach. Jones's salary at Cincinnati was
$190, 000. In 2007, the NCAA recognized Jones as one of ten
up-and-coming minority assistant coaches with the potential
to become Division I head coaches. Other coaches who received
this recognition later became head coaches at the University
of Texas, Texas A&M, Penn State, Vanderbilt, and
In 2007, Jones was hired as Alcorn's head coach with an
annual salary of $140, 000. Jones was willing to take a
significant pay cut because of the opportunity to return to
his alma mater as a head coach. The contract that Jones
eventually signed was short on details. It consisted of a
single page with five additional, standard form clauses
attached. The contract was for a term of four years with an
annual salary of $140, 000. The contract provided that Jones
could be fired only for (a) "[f]inancial exigencies as
declared by the Board [of Trustees of the State Institutions
of Higher Learning (IHL)]"; (b) "[t]ermination or
reduction of programs . . . as approved by the Board";
(c) "[m]alfeasance, inefficiency or contumacious
conduct"; or (d) "[f]or cause."
Darren Hamilton became Alcorn's athletic director in
April 2008. Hamilton clashed with Jones almost immediately.
Alcorn's then-president, George Ross, testified that the
"two men didn't like each other," although Ross
said he did not know why. On May 12, 2008, only six weeks
after Hamilton arrived at Alcorn, Hamilton wrote a strongly
worded "Letter of Reprimand" to Jones, with copies
to Jones's personnel file and Alcorn's director of
human resources. Hamilton alleged that Jones had violated the
university's code of conduct by "inexcusable neglect
of duty or insubordination." Specifically, Hamilton
alleged that Jones and an assistant coach, Keith Majors,
failed to attend a scheduled meeting with him. Jones denied
the allegation in a written response. According to Jones, he
and Majors went to see Hamilton at the appointed time, but
Hamilton looked at them and turned and walked away without
saying a word. Jones testified that Hamilton called the
meeting because Hamilton wanted Jones to fire Majors, but
Jones refused because Majors was a valued member of his
staff. However, Hamilton testified that he did not tell Jones
to fire Majors.
When Alcorn began fall practice in late July 2008, the team
had no helmets, pads, shoes, or uniforms. The few items of
used equipment that the team did have had not been certified
as safe for use as required by NCAA rules. Players had to
supply their own helmets, pads, and shoes for practice. For
much of the preseason, the team practiced in plain white
t-shirts with handwritten numbers. Pads, helmets, shoes, and
uniforms finally arrived only a week before the team's
first game. Jones and the team's equipment manager, Dante
Tyson-Bey, testified that they repeatedly asked Hamilton to
approve orders for desperately needed uniforms and equipment,
but Hamilton delayed. Tyson-Bey, who had years of experience
with college and pro sports teams, described the 2008
preseason as "the most embarrassing thing [he had] ever
been a part of." Jones and others also testified that
the athletic department failed to provide meals for the team
during fall practice and failed to pay medical insurance
premiums. As a result, Jones and his staff provided peanut
butter and jelly sandwiches and box lunches, and injured
players had to wait to see doctors.
Jones also testified that, before Hamilton arrived, Ross
promised Jones that he could raise money for the football
program and supplement his base salary by soliciting sponsors
for TV and radio shows. According to Jones, this practice is
customary in college football, and the previous coach at
Alcorn, Johnny Thomas, had done the same. Jones testified
that Ross directed him to talk to Thomas about the shows.
Based on conversations with Ross and Thomas, Jones opened a
bank account that he named the "Run and Gun"
account and solicited donations and sponsorships for the
shows. However, after Hamilton was hired, he ordered Jones to
close the account and transfer the money to the ASU
Foundation, a nonprofit organization affiliated with the
university. Jones testified that he did as Hamilton
instructed. Jones testified that he did pay vendors for
fundraising-related expenses that were incurred before he was
ordered to close the account. But Jones transferred all
remaining funds, which was most of what he had raised, to the
Foundation. Nonetheless, Hamilton accused Jones of opening an
unauthorized bank account and refusing to turn over funds to
the Foundation. A May 22, 2008 memorandum shows that, based
on Hamilton's allegation, Alcorn's human resources
director contacted a special assistant attorney general for
advice about possible "disciplinary actions and/or
termination of [Jones's] employment."
Jones also testified that Hamilton gave him permission to
book hotel rooms for all games in advance of the season.
Jones delegated this responsibility to an assistant coach,
who then booked hotels for all games, including the Capital
City Classic-the season finale in Jackson against Jackson
State University. Unbeknownst to Jones and his assistant
coach, another Alcorn employee booked hotel rooms for the
Capital City Classic at a different hotel. Hamilton later
claimed that Jones had mishandled football finances by
double-booking rooms for the team.
Jones testified that he met with Hamilton in June 2008 to
discuss a potential shoe contract with New Balance. After
discussing the issue with Hamilton, Jones agreed to a deal
with New Balance, and Hamilton approved the agreement subject
to certain modifications to the terms of the contract.
However, in October the Southwestern Athletic Conference
signed an agreement to make Nike the exclusive shoe provider
for the entire conference. Hamilton directed Jones to get out
of the contract with New Balance. In addition, Hamilton
alleged that the agreement with New Balance was unauthorized.
Jones testified that this harmed his reputation with New
Balance and other companies in the industry. Jones also
testified that Hamilton ordered him to cancel the New Balance
contract in retaliation for Jones's continued refusal to
Hamilton also alleged that Jones made an $11, 000 order from
a Russell Athletics vendor without proper authorization.
However, Jones testified that the vendor eventually
acknowledged that Jones did not place the order and that the
shipment and invoice were in error. Jones offered a note from
the vendor's salesman to corroborate his testimony.
However, even after the vendor acknowledged its error,
Hamilton accused Jones of "inefficiency in
resolving" the issue.
Alcorn struggled through a 2-10 season in 2008. On November
26, 2008, seven of Jones's assistant coaches received
identical notices that their contracts would "not be
renewed" and that their "employment at Alcorn . . .
[would] end on December 31, 2008." Although Ross signed
the notices, each stated that the decision not to renew the
coach's contract was based on Hamilton's
recommendation. Ross testified that he simply followed
Hamilton's recommendations, and he could not recall or
lacked personal knowledge of the reasons for the
non-renewals. Jones was not given any advance warning or any
reason for the non-renewal notices. He first learned about
the notices from his assistant coaches. Jones then filed the
instant lawsuit against Alcorn on December 5,
2008. Jones testified that Alcorn's abrupt
termination of his assistant coaches made it impossible for
him to do his job and harmed his reputation.
At trial, Ross claimed that the assistant coaches were never
really fired. He testified that the assistant coaches were on
one-year contracts, and the fact that their existing
contracts were not being renewed did not mean that
they would not be offered new contracts for the
following year. None of this was explained to the assistant
coaches, who understandably were confused and upset by the
non-renewal notices. However, after Jones filed suit against
Alcorn, all of his assistant coaches were asked to remain
with the program.
Five days after Jones filed suit, Alcorn gave him notice of
his possible termination for cause. In the notice, Hamilton
stated that he was recommending Jones's termination
"due to inefficiency and malfeasance" on four
grounds: (1) "[o]pening a bank account in [his own] name
and depositing fundraising monies without proper authority .
. . and without following the proper procedures"; (2)
buying shoes from a "non-approved" vendor
"when [Alcorn] ha[d] an exclusive footwear contract with
Nike"; (3) "[i]nefficiency in resolving" the
alleged unauthorized order of Russell Athletics apparel; and
(4) booking hotel rooms for the Capital City Classic
"without authority and without following proper
procedures." The notice informed Jones that he had the
right to request a due process hearing before a hearing
committee, which would make a recommendation to Ross.
Jones exercised his right to a hearing, and the hearing was
held on January 16, 2009. The hearing committee was comprised
of three Alcorn employees appointed by Ross. Jones was
allowed to attend the hearing and to call and question
witnesses. Jones's attorneys were allowed to attend as
advisors but were not allowed to examine witnesses or present
evidence. After the hearing, the committee recommended that
Ross terminate Jones for malfeasance and contumacious
conduct. Ross concurred in the committee's recommendation
and terminated Jones effective January 28, 2009.
Jones appealed the hearing committee's decision and his
termination to the Claiborne County Circuit Court by petition
for a writ of certiorari. See Miss. Code Ann. §
11-51-93 (Rev. 2012). In April 2011, the circuit court
dismissed Jones's petition and upheld the committee's
decision. Jones appealed, and in August 2013, this Court
affirmed the circuit court's order dismissing Jones's
petition. This Court held that Jones's hearing comported
with due process and that Jones could not show that the
hearing committee's decision was "arbitrary and
capricious." See generally Jones v. Alcorn State
Univ., 120 So.3d 448 (Miss. Ct. App. 2013).
On January 28, 2009, the same day that Ross officially
terminated Jones, Alcorn asked Jones's associate head
coach and defensive coordinator, Earnest Collins, to serve as
Alcorn's interim head coach for the 2009 season. Collins
initially declined. He and Jones were close friends,
he testified that he "didn't want to be in that
environment" or work for a school that would treat an
alumnus like Jones had been treated. However, after Jones
encouraged Collins to take the job, Collins agreed to stay on
one condition: he would not report to or deal with Hamilton.
Alcorn agreed that Collins could report to Ross's chief
of staff and would not have to deal with
Hamilton. Hamilton left Alcorn during 2009. Collins
remained at Alcorn as the interim head coach for the 2009 and
2010 seasons before he was hired as the head coach at his
alma matter, the University of Northern Colorado.
In May 2010, Alcorn filed a motion to dismiss this case for
lack of subject matter jurisdiction. Alcorn argued that
Jones's complaint in this case was "premature"
because Jones's petition for writ of certiorari, which
challenged his termination, remained pending in the circuit
court. Alcorn argued that both cases arose "out of the
same operative facts, events, and/or occurrences."
Alcorn further argued that Jones was required to
"exhaust his administrative remedies"-i.e., pursue
his certiorari petition to a final decision-before he could
pursue his complaint for damages in this case. Indeed, Alcorn
argued that there could not even be a "justiciable
controversy" on Jones's complaint for damages until
there was "a final determination of [his] appeal seeking
reinstatement of his employment." The circuit court
never ruled on Alcorn's motion.
Also in May 2010, while Jones's petition for certiorari
and separate complaint for damages both remained pending in
circuit court, Jones filed suit in federal court against
Alcorn, IHL, Hamilton, and Ross. Jones's federal
complaint alleged violations of his constitutional rights and
sought damages under 42 U.S.C. § 1983 and injunctive
relief under Ex Parte Young, 209 U.S. 123 (1908).
Jones also asserted state law claims, including breach of
contract, breach of the duty of good faith and fair dealing,
and tortious interference with contract. Jones's reasons
for filing the federal complaint are unclear. In any event,
in 2012, the district court ruled that the Eleventh Amendment
to the United States Constitution provided Alcorn and IHL
with immunity from suit in federal court. Therefore, the
court dismissed all claims against Alcorn and IHL
"without prejudice pursuant to the Eleventh
Amendment." Jones's claims against Hamilton and Ross
were also dismissed "without prejudice" for failure
to serve process within 120 days.
As noted above, this Court affirmed the dismissal of
Jones's petition for a writ of certiorari in August 2013.
In 2014, this case stirred to life in the circuit court, and
eventually trial was set for January 12, 2016.
On August 10, 2015, Jones filed a motion for leave to file an
amended complaint. Jones stated that the proposed amended
complaint would "simplify" the case by eliminating
some claims, which he conceded were not viable. Alcorn
opposed Jones's motion, arguing that the proposed amended
complaint asserted a "brand new" claim for breach
of contract based on Jones's termination. Alcorn
contended that Jones's motion should be denied because of
Jones's "lack of diligence" and because the
amendment would unduly delay the litigation and prejudice
Alcorn. In rebuttal, Jones argued that his original complaint
"gave . . . notice that [he] was claiming breach of
contract." Jones also pointed out that in Alcorn's
previously filed motion to dismiss for lack of subject matter
jurisdiction, Alcorn itself had argued that this case was
premature until Jones has exhausted his administrative
remedies by appealing his termination. See supra
In November 2015, the circuit court denied Jones's motion
for leave to amend his complaint to assert a breach of
contract/wrongful termination claim. The court found that the
motion should have been filed "at a much earlier
stage" and that the amendment would unduly delay the
litigation and prejudice Alcorn. In addition, in December
2015, the circuit court granted Hamilton's motion to
dismiss all of Jones's claims against him. The court
concluded that Jones's claim against Hamilton for
tortious interference with contract was barred by the MTCA.
Thus, Jones's only remaining claims were against Alcorn.
The case proceeded to a four-day jury trial in January 2016.
The case was submitted to the jury on a theory that Alcorn
breached its contract with Jones by breaching the implied
covenant of good faith and fair dealing. The court instructed
the jury that "all contracts contain an implied covenant
of good faith and fair dealing," which "need not be
written into the contract." The court further instructed
the jury that Jones alleged that Alcorn had breached the
covenant in three ways: "(A) By firing his assistant
coaches; (B) By intentionally making false charges of
financial misconduct; and (C) By failing to provide uniforms
and shoes for the players in a timely fashion." The
court also instructed the jury that "the trial [did] not
have anything to do with" Alcorn's termination of
Jones, that Jones "was still employed" as
Alcorn's coach when he filed the lawsuit, and that they
could not award damages based on Jones's termination or
the remaining years of salary under his contract. The jury
was instructed that they could award damages for emotional
distress or mental anguish if Jones proved that Alcorn
breached his contract, that such damages were a foreseeable
consequence of the breach, and that Jones actually suffered
such damages. After deliberating, the jury returned a verdict
for Jones and found that Jones suffered damages of $500, 000,
and the court entered final judgment on the
IHL filed a post-trial motion for JNOV or a new trial. The
circuit court granted the motion, set aside the verdict, and
entered judgment in favor of Alcorn. The court ruled that
Jones's good faith and fair dealing claim failed "as
a matter of law" because Jones failed to "prove a
breach of his written employment contract."
Jones filed a timely notice of appeal. On appeal, he argues
that the circuit court erred by granting Alcorn's motion
for JNOV. As noted above, he also argues that the circuit
court erred prior to trial by denying his motion for leave to
amend his complaint and by dismissing his tortious
interference claim against Hamilton. Following oral argument,
we entered an order directing the parties to file
supplemental briefs addressing several issues, primarily
related to Jones's good faith and fair dealing claim and
Jones has a viable claim for breach of the implied
covenant of good faith and fair dealing, but
the claim is subject to the MTCA.
We first determine whether Jones has a viable claim for
breach of the implied covenant of good faith and fair dealing
and, if so, whether and how the MTCA applies to that claim.
All of the issues related to this claim are issues of law or
statutory interpretation, which we review de novo. Kelley
LLC v. Corinth Pub. Utils. Comm'n, 200 So.3d 1107,
1112-13 (¶14) (Miss. Ct. App. 2016).
"All contracts contain an implied covenant of
good faith and fair dealing in performance
The implied covenant of good faith and fair dealing, inherent
in every contract,
is based on fundamental notions of fairness, and its scope
necessarily varies according to the nature of the agreement.
Some conduct, such as subterfuge and evasion, clearly
violates the duty. However, the duty may not only proscribe
undesirable conduct, but may require affirmative action as
well. A party may thus be under a duty not only to refrain
from hindering or preventing the occurrence of conditions of
his own duty or the performance of the other party's
duty, but also to take some affirmative steps to cooperate in
achieving these goals.
Cenac, 609 So.2d at 1272 (quoting E. Allan
Farnsworth, Contracts § 7.17, at 526-27
(1982)). "Good faith is the faithfulness of an agreed
purpose between two parties, a purpose which is consistent
with justified expectations of the other party. The breach of
good faith is bad faith characterized by some conduct which
violates standards of decency, fairness or
reasonableness." Id. Stated differently,
"[t]he covenant holds that neither party will do
anything which injures the right of the other to receive the
benefits of the agreement." Ferrara v. Walters,
919 So.2d 876, 883 (¶19) (Miss. 2005) (internal
quotation mark omitted). As stated above, this covenant is
implied in "[a]ll contracts." Cenac, 609
So.2d at 1272; see also id. at 1259 ("[T]he
covenant of good faith and fair dealing [is] inherent in
every contract in our law.").
A breach of the implied covenant of good faith
and fair dealing does not require a breach
of any express term of the contract.
In granting Alcorn's motion for JNOV, the circuit court
ruled that Jones's "good faith and fair dealing
claims must be rejected as a matter of law" because
Jones "did not prove a breach of his written employment
contract." The circuit court cited this Court's
statement in Daniels v. Parker & Associates
Inc., 99 So.3d 797 (Miss. Ct. App. 2012), that "to
have a breach of the duty of implied good faith and fair
dealing there must first be an existing contract and then
a breach of that contract." Id. at 801
(¶13) (emphasis added). It certainly is true that
"[t]he duty of good faith and fair dealing arises from
the existence of a contract between parties."
Am. Bankers' Ins. Co. of Fla. v. Wells, 819
So.2d 1196, 1207 (¶35) (Miss. 2001). Thus,
Daniels was correct insofar as it stated that the
implied covenant of good faith and fair dealing arises only
where there is an "existing ...