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United States Court of Appeals,
Fifth Circuit.
No. 95-60335
Summary Calendar.
Kay J. BURROUGHS, Plaintiff-Appellee,
v.
FFP OPERATING PARTNERS, L.P., Defendant-Appellant.
Dec. 4, 1995.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before KING, SMITH and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This case returns to us following our remand to the district
court for determination of the apportionment of damages. The sole
issue in this appeal is whether the district court properly
followed our mandate on remand. Concluding that it has, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The complete history of this controversy is contained in our
opinion in the first appeal making only a brief recap necessary
here. See Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543
(5th Cir.1994). Appellee Kay Burroughs sued appellant FFP
Operating Partners, L.P. ("FFP"), inter alia, for intentional
infliction of emotional distress ("i.i.e.d.") and slander stemming
from her employment termination. A jury found for Burroughs on
both causes of action and awarded $250,000 in compensatory damages;
the jury denied punitive damages. FFP appealed the district
court's denial of a motion for judgment as a matter of law.
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On appeal, we held as a matter of law that Burroughs's
emotional injuries were not severe enough to meet the standard for
intentional infliction of emotion distress under Mississippi law.
Therefore, we reversed the jury verdict on that claim. 28 F.3d at
549. As for the slander count, FFP only challenged the falsity
element. Following a review of the evidence presented at trial, we
affirmed the jury's verdict on the slander claim because we were
unable to say that no reasonable juror could have found for
Burroughs. Id. at 550. Our mandate was explicit:
The judgment is REVERSED on the i.i.e.d. claim, and j.m.l. is
hereby granted in favor of FFP. The judgment is AFFIRMED on
the slander claim, and the case is REMANDED for determination
of the apportionment of the $250,000 jury verdict.
Id.
Faced with our mandate, the district court apportioned the
entire damage award to the slander claim. It based this decision
on the fact that under Mississippi law, the elements of
compensatory damages for intentional infliction of emotional
distress are subsumed into the elements of damages for slander.
Since all of Burroughs's evidence would have been admissible to
support the slander claim, the court apportioned 100% of the
damages awarded by the jury to that claim. FFP now appeals
contending the district court misunderstood our mandate.
DISCUSSION
The scope of our review in this appeal is limited. On a
second appeal following remand, the only issue for consideration is
whether the court below reached its final decree in due pursuance
of our previous opinion and mandate. Mobil Oil Corp. v. Department
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of Energy, 647 F.2d 142, 145 (Temp.Emerg.Ct.App.1981). We may, of
course, consult our prior opinion to ascertain what was in
controversy and what was intended by our opinion and mandate. Id.
However, this Court will not reconsider issues decided by the prior
panel. Id. Accordingly, in reviewing this appeal, our prior
holding affirming the slander claim is the law of the case and will
not be disturbed by this Court. See Willy v. Coastal Corp., 915
F.2d 965, 968 (5th Cir.1990), aff'd, 503 U.S. 131, 112 S.Ct. 1076,
117 L.Ed.2d 280 (1992).
The present controversy stems from our mandate regarding the
damage award. The jury answered a unified instruction on
compensatory damages. The instruction described the appropriate
categories of damages available including "mental pain and mental
anguish, including humiliation, embarrassment and loss of
reputation." The jury was not instructed to allocate damages for
each of the counts alleged in Burroughs's complaint. This
instruction was not objected to by FFP at trial or in the first
appeal.
Because we sustained the slander claim, but reversed the
intentional infliction of emotion distress claim, we found it
necessary to remand the damage issue to the district court to
allocate damages. We did not order a new trial on damages. Nor
did we hold that the evidence was insufficient, as a matter of law,
to support a claim for damages for slander. Our allocation
instruction directed the district court to determine, based upon
the record developed at trial, what part of the total damage award
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is properly attributable to the intentional infliction of emotional
distress claim, and what part is attributable to the slander claim.
This is precisely what the district court did.
In its order following remand, the district court explained
its approach to our mandate. The court first determined what
evidence of damages was admissible solely with regard to the
intentional infliction of emotional distress claim. The court
correctly concluded that there was no evidence of damages that was
admissible only under the i.i.e.d. claim. Since all evidence of
damages was properly before the jury on the slander claim, the
court concluded that the entire damage award of $250,000 could be
attributable to the slander claim; the court so ordered. Under
the circumstances, we do not find this approach inconsistent with
our mandate.
At the outset, it is important to note the differences
between the two underlying tort claims. To support an i.i.e.d.
claim, a plaintiff must show severe emotional distress.
Restatement (Second) of Torts � 46(1) (1965) ("One who by extreme
and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such
emotional distress....") (emphasis added); see Lyons v. Zale
Jewelry Co., 246 Miss. 139, 150 So.2d 154, 158 (1963) (citing
section 46 of the Restatement of Torts). Because of the fear of
fictitious or trivial claims, distrust of the proof offered, and
the difficulty of setting satisfactory boundaries of liability,
severity is an element of i.i.e.d. See Restatement (Second) of
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Torts � 46, cmts. b, j. Only the most extreme emotional injuries
yield liability. Id. � 46, cmt. j. As we reasoned in the first
appeal, the evidence adduced at trial simply did not rise to the
level of severity required for the independent tort of intentional
infliction of emotional distress.
That does not mean, however, that Burroughs's emotional
injuries are uncompensable. While intentional infliction of
emotional distress requires severe emotional injuries, the same
level of severity is not required when the compensable emotional
injuries stem from another independent tortious act. See Lyons,
150 So.2d at 157 ("It is clear, however that from the very earliest
times, the law has allowed recovery for mental distress under some
circumstances, where the act of defendant producing such distress
also involved an independent tort of some kind, such as ... injury
to reputation...."). In this case, we affirmed the jury's verdict
on an independent tort of slander. This issue is not subject to
further review. Unlike i.i.e.d., slander does not require severe
emotional injuries before compensation is allowed. Appropriate
damages for slander include impairment of reputation, personal
humiliation, mental anguish and suffering. Brewer v. Memphis
Publishing Co., 626 F.2d 1238, 1246 (5th Cir.1980), cert. denied,
452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981); see E.E.O.C.
v. Southern Publishing Co., 705 F.Supp. 1213, 1219 (S.D.Miss.1988)
("The damages recoverable [for defamation] are for injury to
reputation, though the damages may also include as an additional
element emotional or mental harm."), aff'd, 894 F.2d 785 (5th
5

Cir.1990); Restatement (Second) of Torts � 623 ("One who is liable
to another for a libel or slander is liable also for emotional
distress and bodily harm that is proved to have been caused by the
defamatory publication."). We have found no authority indicating
under Mississippi law that only severe emotional injuries are
compensable on a slander claim.
FFP contends in this appeal that Burroughs is only entitled to
those damages stemming from injury to her reputation.1
Consequently, FFP reiterates that since there is little record
evidence of damage to Burroughs's reputation, the district court
should have allocated a small amount of damages to this claim. As
the above authority makes clear, this is not the case. Burroughs
is entitled to compensation for her emotional injuries as well.
While the evidence of emotional injuries does not rise to the level
of severity to support an independent tort of intentional
infliction of emotional distress, these injuries are compensable as
damages for her slander claim.
The district court examined the record and found all the
evidence of damages admitted at trial properly applied to the
slander claim. In essence, the district court looked at the case
1FFP cites Garziano v. E.I. Du Pont De Nemours & Co, 818
F.2d 380, 395 (5th Cir.1987), for this proposition. In Garziano,
we said that "[t]he law of Mississippi requires "not the
knowledge of the plaintiff nor the injury to his feelings but the
degrading of reputation' for recovery." 818 F.2d at 395. This
statement, however, was not intended to define or limit the
elements of damages for a slander claim. It does not dilute
Brewer, E.E.O.C., and the Restatement which make clear that if
there is a finding of slander, emotional injuries are
compensable.
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as if it had been tried solely on a slander claim and concluded
that the evidence could support the jury's damage award. We will
not disturb this conclusion on appeal. The jury was properly
instructed on the elements of compensable damages for slander. No
objection to the instruction was made. The jury returned a verdict
for $250,000 on the basis of evidence that is all applicable to the
slander claim. FFP did not argue in its first appeal that there
was insufficient evidence to support the jury's verdict on the
slander claim. Furthermore, we specifically affirmed the jury's
verdict on slander. The only question that remained was whether
the evidence adduced at trial reflected that some of Burroughs's
damages were only related to the i.i.e.d. claim. The district
court concluded that there was none. No error was occasioned by
such conclusion.
CONCLUSION
Satisfied that district court properly applied our mandate,
the judgment is AFFIRMED.

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