DOWDY v. GRAYSON (2025)

¶1. Steven Dowdy appeals the Lamar County Circuit Court's dismissal of his claim for malicious prosecution. We find no error and affirm on the direct appeal.

¶2. Kierra Dowdy cross-appeals the trial court's dismissal of her fraud counterclaim against Steven. Finding that the court erred, we reverse the judgment in this regard and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶3. In March 2015, sixteen-year-old Kierra Dowdy alleged that her father Steven had sexually abused her in December 2014. A grand jury indicted Dowdy on counts of child molestation and sexual battery in April 2019. The State dismissed the charges by nolle prosequi on November 5, 2020.

¶4. On April 12, 2021, Steven sued Kierra and his ex-wife Lenise Grayson for “slander, libel, malicious prosecution, false arrest, and conspiracy.”¹ Kierra filed an answer, and she asserted compulsory counterclaims for assault, battery, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress, conversion, unjust enrichment, breach of fiduciary duty, fraud, and libel. The trial court later granted Kierra leave to amend her counterclaims to add a federal claim under 18 U.S.C. § 2255 because she alleged that some of the sexual abuse had occurred overseas.² Dowdy filed a motion to dismiss Kierra's amended counter-complaint on February 7, 2022, summarily denying the allegations in her counterclaims.

¶5. On August 1, 2022, Kierra filed a motion for summary judgment “on all claims” alleged by Steven. She argued that “[a]s to the claim of malicious prosecution, by his own admission Plaintiff has no evidence (but only speculation) that Kierra acted with malice in reporting his abuse to the authorities.”³ In his response, Steven asserted that the question of malice “is material and should be weighed by the jury.” Kierra filed a reply in support of her motion for summary judgment, again arguing that Steven's claim for malicious prosecution must fail because he “has not come forward with any evidence to create a triable issue as to whether Kierra acted with malice.”

¶6. Grayson filed a (separate) motion for summary judgment against Steven, who responded by filing a motion for summary judgment against Grayson on August 25, 2022. Steven argued that Grayson's counterclaims were “brought outside the statute of limitations, are void as to public policy, or are entirely unsupported allegations.” The memorandum in support of the motion also referenced only Grayson's counterclaims, not Kierra's.⁴ Regarding Grayson's counterclaim for fraud, he argued that she had failed to plead fraud with particularity, as required by Mississippi Rule of Civil Procedure 9(b).⁵

¶7. On September 6, 2022, Kierra filed a motion to strike Steven's summary judgment motion, asserting that Steven's motion was untimely and non-compliant because it was filed beyond the deadline (August 15, 2022) established in the trial court's scheduling order. She further noted that Steven had not moved for summary judgment as to “Kierra's fraud claim, so that claim must go to trial.”

¶8. On September 16, 2022, Steven filed a reply in support of his motion for summary judgment, in which he argued for the first time, among other issues, that Kierra's fraud claim should be “dismissed for insufficient pleading.” On September 23, 2022, the day of the scheduled motions hearing,⁶ Kierra filed a motion to strike Steven's reply because Steven had “raise[d] brand new arguments not raised in the [August 25, 2022] motion as to Kierra's fraud, negligent infliction of emotional distress, intentional infliction of emotional distress, and 18 U.S.C. § 2255 claims.”

¶9. The trial court entered its order regarding Steven's motion for summary judgment on September 23, 2022. The court summarily denied Kierra's motion to strike Steven's summary judgment motion.⁷ Additionally, “after reviewing the applicable pleadings and law,” the trial court granted Steven summary judgment on Kierra's claim of fraud, finding that she “failed to plead her claim of fraud with specificity.” The court also entered a separate order addressing Kierra's motion for summary judgment. Finding there were “facts in dispute with respect to whether Kierra acted with malice and this is a jury question,” the trial court denied Kierra's motion for summary judgment as to Steven's claim of malicious prosecution.

¶10. Kierra filed a motion for reconsideration on October 3, 2022, requesting that the trial court reconsider its ruling to grant summary judgment “on Kierra's intentional infliction of emotional distress counterclaim.” On July 10, 2023, the trial court granted Kierra's motion to reconsider and reinstated her IIED counterclaim.⁸

¶11. Steven filed a motion on June 19, 2023, requesting that the trial court enter a final judgment on those counterclaims for which the court had already granted summary judgment.⁹ See M.R.C.P. 54(b). The trial court denied Steven's motion, “finding an entry of a Rule 54(b) certification would be inappropriate in this instance.”

¶12. A trial was held July 31, 2023, through August 2, 2023, on Steven's sole remaining claim of malicious prosecution and Kierra's remaining counterclaims for conversion, IIED, and personal injury from illicit sexual conduct in a foreign place (18 U.S.C. § 2255). After Steven rested his case-in-chief, the defendants moved for a directed verdict on Steven's claim. The trial court granted the defendants’ motion and dismissed the malicious-prosecution claim with prejudice.¹⁰

¶13. After Kierra rested her case-in-chief on her counterclaims, the trial court granted Steven's motion for a directed verdict on the counterclaim for conversion. The jury subsequently determined that Kierra failed to prove the two remaining counterclaims by a preponderance of the evidence. The trial court entered its final judgment on August 4, 2023, granting the defendants’ motion for a directed verdict on Steven's “sole remaining claim for malicious prosecution.” Steven appeals the judgment. Kierra has filed a cross-appeal of the trial court's granting of summary judgment as to her claim of fraud.

DISCUSSION

DIRECT APPEAL

I. Whether the trial court erred by granting the defendants’ motion for a directed verdict and applying an improper legal standard.

¶14. In granting the defendants’ motion for a directed verdict, the trial court determined:

The evidence introduced by the plaintiff together with any reasonable inference that may be drawn is accepted as true, but the critical inquiry is when the evidence shows beyond a reasonable doubt ․ I believe and I have been convinced that the evidence of malice is not satisfied. It specifically says that every element must exist. When evidence fails to meet this test, it's insufficient.

Steven's attorney asked the court “to reconsider its ruling ․ based on the fact that the [c]ourt just recited an erroneous rule of law, that is, that this is a civil case and not a criminal case, so that the test is a preponderance of the evidence, not a reasonable doubt.” The trial judge replied, “Yes, sir, I understand that. I still would stick to my ruling.”

¶15. Steven claims that the trial court's ruling is “clear error.” He contends that the court's use of the “heightened standard” of “beyond a reasonable doubt” rather than “preponderance of the evidence” “unduly restricted [his] ability to have his claims fairly considered by the trier of fact.” See Cassell v. Cassell, 389 So. 3d 305, 311 (¶14) (Miss. 2024) (“Generally, ‘the burden of proof in an ordinary civil case is by preponderance of the evidence.’ ” (quoting James M. Burns Lumber Co. v. Dilworth, 676 So. 2d 892, 893 (Miss. 1996))).

¶16. “The standard of review for a trial court's grant or denial of a motion for a directed verdict is de novo.” Harris v. Michael, 211 So. 3d 732, 734 (¶6) (Miss. Ct. App. 2016). “The trial court may direct a verdict for the defendant at the close of the plaintiff's case under Mississippi Rule of Civil Procedure 50(a) if [the court] finds the plaintiff has failed to present credible evidence to establish the necessary elements of his claim.” Id. (citing Hall v. Miss. Chem. Express Inc., 528 So. 2d 796, 798 (Miss. 1988)); cf. Forbes v. Gen. Motors Corp., 935 So. 2d 869, 878 (¶15) (Miss. 2006) (“A directed verdict exists so a defendant may challenge a case unsupported by sufficient evidence.” (citing M.R.C.P. 50(a))). Viewing the evidence “in the light most favorable to the plaintiff, should the court determine that the matter is so overwhelmingly in favor of the defendant that no reasonable juror could find for the plaintiff,” the court should grant the defendant's motion for directed verdict. Partain v. Sta-Home Health Agency of Jackson Inc., 904 So. 2d 1112, 1116 (¶7) (Miss. Ct. App. 2004).

¶17. First, we find the court's initial recitation of an incorrect burden of proof in this instance was harmless error.¹¹ In Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424 (5th Cir. 2013), the United States Court of Appeals for the Fifth Circuit held that in a civil commitment proceeding, “application of the incorrect burden of proof by the district court is subject to harmless error review.” Specifically, the appellate court stated that “[u]se of the preponderance burden of proof when clear and convincing evidence is mandated may require reversal, but it may be harmless error when the evidence is substantial and undisputed” and the appellant “is unable to show that it is reasonably likely her substantial rights were affected.” Id. at 424-25. As noted, Steven's attorney brought the issue to the court's attention. The trial court nevertheless reaffirmed the ruling to grant the directed verdict.

¶18. We further find no error in the trial court's decision to grant a directed verdict. In Benjamin v. Hooper Elec. Supply Co., 568 So. 2d 1182, 1188 (Miss. 1990), the Mississippi Supreme Court held:

In order to show that the trial court erred in granting a directed verdict for malicious prosecution, there must have been some direct or circumstantial evidence from which the jury could reasonably infer each of the following elements: “(1) The institution [or continuation] of a criminal proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; (6) the suffering of injury or damage as a result of the prosecution.”

(Emphasis added) (quoting Parker v. Game & Fish Comm'n, 555 So. 2d 725, 728 (Miss. 1989)). “ ‘Malice’ in the law of malicious prosecution does not connote an evil intent”; rather, “it means that the prosecution was instituted primarily for a purpose other than that of bringing an offender to justice.” Funderburk v. Johnson, 935 So. 2d 1084, 1097 (¶31) (Miss. Ct. App. 2006); cf. Page v. Wiggins, 595 So. 2d 1291, 1293 (Miss. 1992) (“Malice refers to the defendant's objective state of mind, not his [or her] attitude.”). Malice “may be proved by circumstantial evidence or the jury may infer malice from the facts of the case.” Benjamin, 568 So. 2d at 1191. “The determination of malice is a question of fact to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence.” Donaldson v. Ovella, 228 So. 3d 820, 831 (¶30) (Miss. Ct. App. 2017).

¶19. Steven “concedes that a fair amount of the evidence presented [at trial] was circumstantial,” but he argues that the issue of malice was question of fact for the jury. At trial, Steven claimed that “all this started with the fact that Kierra wanted to go to another school, and I wouldn't let her do it because she would have lost a grade.” There was certainly evidence that Kierra was a troubled teenager. But while she admitted to lying “as much as any other kid [her] age,” she denied lying “to gain anything.” Furthermore, although Kierra's journal stated that “[Lenise's] lawyer told [Lenise] to tell the judge that Dad was sexually molesting me,” Lenise denied having that conversation with her attorney. Steven also admitted that he had no personal knowledge if Lenise followed this advice. Steven further averred at trial that the defendants wanted control of Kierra's annuity and trust.¹²

¶20. The dissent contends that “if Steven's testimony is believed, Kierra knew that her allegations of sexual abuse were completely false when she made them.”¹³ But the dissent ignores Steven's admission on cross-examination that any argument or accusation regarding the defendants’ motivation to control the trust would be based on speculation. As Kierra's attorney argued in support of the motion for a directed verdict, “If that's the theory, that's just a speculation. There's no substantiation for it.” “Possibilities will not sustain a verdict. It must have a better foundation.” Ill. Cent. R. Co. v. Cathy, 70 Miss. 332, 338, 12 So. 253, 254 (1893). In Barnes v. Taylor, 347 So. 2d 972, 974 (Miss. 1977), the supreme court affirmed a trial court's granting of a motion for a directed verdict because “a jury verdict for the plaintiff could only result from surmise, speculation, or conjecture.”

¶21. We agree with Kierra that Steven's attempts to demonstrate evidence of malice were based on “speculative inference[s].” When asked during his deposition what he thought the defendants’ motivation was for making the accusations, Steven admitted, “I have just speculation. Nothing hard.” In Eubanks v. Geo Grp. Inc., No. CIV. A. 4:06-CV-24-TSL-LR, 2008 WL 2779308, at *5 (S.D. Miss. July 14, 2008), the United States District Court for the Southern District of Mississippi held that a “plaintiff's subjective feeling or belief that [the defendant] may have felt threatened by his education and experience is patently insufficient to warrant a finding of malice” and granted the defendant's motion for summary judgment.¹⁴

¶22. Although we view the evidence in the light most favorable to Steven, his speculative inferences alone as to the defendants’ motivation will not support a jury verdict. See Double Quick Inc. v. Lymas, 50 So. 3d 292, 299 (¶35) (Miss. 2010) (finding “speculation and conjecture alone will not support a verdict”). Therefore, we agree with the trial court that the evidence was insufficient to support the element of malice, and we find no error in the court's granting the motion for a directed verdict.

CROSS-APPEAL

II. Whether jurisdiction is proper.

¶23. As a preliminary matter, we must first clarify the basis for the court's ruling to dismiss Kierra's fraud claim to determine whether it is actually a granting of summary judgment or, instead, a judgment on the pleadings under Rule 12(c) of the Mississippi Rules of Civil Procedure.¹⁵ “Unlike a Rule 56 motion for summary judgment, a Rule 12(c) motion for judgment on the pleadings is decided on the face of the pleadings alone.” Huff-Cook Inc. v. Dale, 913 So. 2d 988, 990 (¶10) (Miss. 2005) (citing Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1211 (¶15) (Miss. 2001)). While we have no transcript of the motions hearing, the trial court expressly stated in its order that “after reviewing the applicable pleadings and law,” Kierra had “failed to plead her claim of fraud with specificity.” Thus, we find that the court's ruling to dismiss Kierra's fraud counterclaim is a judgment on the pleadings under Rule 12(c). See Bartz v. Roberts, 320 So. 3d 1255, 1261-62 (¶¶17-18) (Miss. Ct. App. 2021) (finding that because the chancellor's order granting summary judgment did not consider “anything other than the pleadings,” the chancellor therefore treated the motion “as one for judgment on the pleadings pursuant to Rule 12(c)”).

¶24. We also must address whether we have jurisdiction of the cross-appeal. The trial court dismissed Kierra's fraud counterclaim on September 23, 2022. However, there were remaining claims and counterclaims to be addressed at trial, and the trial court expressly denied Steven's motion requesting that a Rule 54(b) judgment be issued as to the claims and counterclaims already dismissed by the court (e.g., Kierra's fraud counterclaim). We recognize that if a trial court grants “a judgment on the pleadings only with respect to the claims of some (but not all) of the parties, Rule 54(b) applies, preventing immediate appellate review unless the court certifies that there is no just reason for delay.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1372 (3d ed. Supp. 2025).¹⁶ After the trial court entered its final judgment on August 4, 2023, Steven filed a timely notice of appeal. Kierra filed her notice of cross-appeal less than fourteen days after the notice of appeal was filed by the appellant. See M.R.A.P. 4(c) cmt. (explaining “that a notice of appeal for a cross-appeal be filed within 14 days after the date on which the first notice of appeal was filed”). Therefore, we find this Court has jurisdiction to address Kierra's cross-appeal.

III. Whether the trial court erred in dismissing Kierra's counterclaim for fraud.

¶25. Kierra argues that the trial court erred in its ruling to dismiss her counterclaim because: (i) Steven waived this argument; (ii) Steven's reply/motion for summary judgment was untimely under the rules of civil procedure; and (iii) there was sufficient evidence for her counterclaim to survive summary judgment or, alternatively, she pled her claim with the requisite particularity.

¶26. Steven “concede[s] that the argument for summary judgment as to [Kierra's] claim of fraud was improperly raised in a response/reply brief.” But he argues that because Kierra never pursued her motion to strike nor requested reconsideration of the court's ruling prior to trial, she has waived this claim. For those reasons discussed above regarding jurisdiction, we reject Steven's argument. The court's dismissal of Kierra's fraud claim was interlocutory until the court's August 4, 2023 final judgment had resolved all claims by the parties. Nevertheless, the cases cited by Kierra in support of her claim of waiver all pertain to appellate briefs, and she has cited no authority that a plaintiff may not raise a new argument in a responsive motion before the trial court. Moreover, Steven had already filed a motion to dismiss Kierra's counterclaims on February 7, 2022, in which he denied all allegations in her counter-complaint. Therefore, we find no merit to her claim that Steven waived this argument.

¶27. Kierra's second claim concerns the time limitation set forth in Mississippi Rule of Civil Procedure 56(c), which requires that a motion for summary judgment “be served at least ten days before the time fixed for the hearing.” Cowan v. Miss. Bureau of Narcotics, 2 So. 3d 759, 763 (¶10) (Miss. Ct. App. 2009). The record indicates that Steven's reply and (separate) motion for summary judgment against Kierra's counterclaims was filed on September 16, 2022, less than ten days before the hearing. However, the purpose of the ten-day notice is to “give the parties the opportunity to submit materials in opposition to the motion.” Palmer v. Biloxi Reg. Med. Ctr. Inc., 649 So. 2d 179, 184 (Miss. 1994). In this case, because the trial court only considered the pleadings and the applicable law with regard to her fraud claim, we find that the purpose of Rule 56(c) is not implicated.

¶28. We find Kierra's argument that her counterclaim “amply satisf[ied] the heightened pleading standard of Rule 9(b)” to be dispositive of her cross-appeal. Mississippi Rule of Civil Procedure 9(b) states, “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” M.R.C.P. 9(b). To plead her fraud claim with particularity, Kierra needed to show “(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that the representation should be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on the representation's truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury.” Soni v. Dhaliwal, 203 So. 3d 628, 637 (¶45) (Miss. Ct. App. 2016).

¶29. One of the objectives of Rule 9(b) is to ensure “the complaint ‘provides defendants with fair notice of the plaintiffs’ claims[.]’ ” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009) (quoting Melder v. Morris, 27 F.3d 1097, 1100 (5th Cir. 1994)). “Fraud will not be inferred or presumed and may not be charged in general terms.” EDW Invs. LLC v. Barnett, 149 So. 3d 489, 493 (¶9) (Miss. 2014). “The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated.” Id.

¶30. In her answer and counter-complaint, Kierra alleged that approximately ten times “in 2014 and 2015, when [she] was a minor (at times forcefully and always without her consent), her father Steven Dowdy groped her breasts and performed oral sex on her.” Kierra claimed that in order to persuade her to submit to the alleged sexual acts, Steven “falsely stated to [her] that there was nothing wrong with his actions, she was lucky to have a father who would do this for her, [and] that the experiences would prepare her for future partners[.]” She also alleged that Steven threatened “to take his own life if she would not submit.” Kierra stated that Steven “knew of the falsity of those statements, but [she] did not” and that she “rightfully relied and acted upon those statements, which were material, as Steven Dowdy intended she should.” Lastly, Kierra claimed that as a result of his actions, she “suffered significant mental and emotional distress and loss of enjoyment of life, and has incurred economic damages in the form of past and future medical expenses, past and future lost wages, lost earning capacity, and other expenses.” We find that Kierra's pleading stated the facts with sufficient particularity to satisfy the requirements of Rule 9(b) and to provide “fair notice” to Steven of the claim and that the trial court erred in dismissing Kierra's fraud counterclaim.

¶31. The dissent would find the court's dismissal “clearly harmless in light of the subsequent jury verdict in favor of Steven” on Kierra's other counterclaims for IIED and illicit sexual conduct. However, the supreme court has held that “[i]t is not our function to draw inferences or to determine what particular inference the jury drew from several permissible ones; but it is ou[r] duty ․ to determine what inferences the jury could legally draw from the evidence” presented. Sun Oil Co. v. Nunnery, 251 Miss. 631, 645, 170 So. 2d 24, 30 (1964). Just as we should not try to second guess a jury's deliberations on appellate review, see Turner v. State, 748 So. 2d 706, 708 (¶6) (Miss. 1999), we likewise find it is improper for our Court to speculate as to a jury's verdict on a claim not presented for the jury's consideration.¹⁷ See generally E.E.O.C. v. Hill Bros. Const. & Eng'g Co., No. 3:05-CV-122, 2007 WL 2702663, at *5 (N.D. Miss. Sept. 12, 2007) (opining that “it is neither possible nor good policy for this [c]ourt to read the minds of jurors”). We do not know what, if any, additional evidence or argument Kierra would have presented at trial in support of her counterclaim for fraud, but she had the right to present it and have the jury instructed on the elements of fraud.

¶32. The dissent reasons that “there is simply no logical possibility that the same jury that found Kierra did not prove sexual abuse at all would have nonetheless found that she proved Steven committed fraud to facilitate or cover up the same sexual abuse.”¹⁸ On remand, Kierra will have her fraud counterclaim heard by a different jury, since Steven's seeking dismissal removed that counterclaim from this jury's consideration. True, had this jury heard the claim, they might have ruled as surmised by the dissent, but due to Steven's litigation tactics, they did not have the opportunity. Steven, rather than Kierra, must bear the consequences.

¶33. Accordingly, we reverse the trial court's judgment dismissing Kierra's counterclaim for fraud, and we remand for further proceedings consistent with this opinion.

¶34. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: REVERSED AND REMANDED.

¶35. The trial court erred by granting a directed verdict on Steven Dowdy's malicious prosecution claim because Steven presented sufficient evidence for the jury to find that his daughter, Kierra, falsely accused him of sexually abusing her. The trial court's ruling that Steven presented no evidence of “malice” is contrary to the law. In this context, “malice” is simply the institution of a prosecution for an improper purpose—i.e., a “purpose other than that of bringing an offender to justice.” Croft v. Grand Casino Tunica Inc., 910 So. 2d 66, 73 (¶18) (Miss. Ct. App. 2005). To put it bluntly, there is no proper purpose for making false allegations of sexual abuse. Since Steven presented sufficient evidence for a jury to find that Kierra did just that, the trial court should have allowed the jury to decide his claim for malicious prosecution.

¶36. I also disagree that Kierra is entitled to a trial on her counterclaim for fraud. Kierra had a full and fair jury trial on her other counterclaims, and the jury clearly found that Kierra failed to prove by a preponderance of the evidence that Steven had molested her. Since Kierra's same allegations of sexual abuse are the essential basis of her fraud claim, any error in dismissing that claim prior to trial was clearly harmless.

I. Steven's Malicious Prosecution Claim

¶37. Kierra Dowdy alleges that her father, Steven, sexually molested her multiple times in December 2014 and January 2015, when she was fifteen years old. Based on Kierra's allegations, Steven was indicted in April 2019. However, in November 2020, the circuit court nolle prossed the charges on the motion of the district attorney.

¶38. Steven then filed a civil lawsuit against Kierra for malicious prosecution, and Kierra responded by asserting counterclaims against Steven for intentional infliction of emotional distress, engaging in illicit sexual conduct with her in violation of federal law, and fraud. At trial, Kierra testified that Steven molested her “approximately six to eight times” in December 2014 and January 2015. Steven vehemently denied Kierra's allegations, testifying that they were “completely false,” “sick,” and “disgusting to even think about.” Nonetheless, the trial judge granted Kierra's motion for a directed verdict on Steven's malicious prosecution claim. Kierra's counterclaims for intentional infliction of emotional distress and illicit sexual conduct were submitted to the jury, but the jury returned a verdict finding that Kierra had not proved either claim by a preponderance of the evidence.

¶39. On appeal, Steven argues that the trial judge erred by granting Kierra's motion for a directed verdict. I agree.

¶40. We review the grant of a directed verdict de novo. N. Elec. Co. v. Phillips, 660 So. 2d 1278, 1281 (Miss. 1995). “When a motion for directed verdict is made, the court must consider all of the evidence in the light most favorable to the nonmoving party ․” Fox v. Smith, 594 So. 2d 596, 603 (Miss. 1992). “In considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against [Steven] that no reasonable juror could have found in [his] favor.” Id. “A directed verdict ․ is not an appropriate means for the disposition of a case so long as questions of fact are raised in the proof at trial.” Id. “It is fundamental in our jurisprudence that questions of fact are for a jury ․” Id.

¶41. “The elements of the tort of malicious prosecution are: (1) the institution of a proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding and (6) the suffering of injury or damage as a result of the prosecution.” Croft, 910 So. 2d at 72 (¶14). The trial judge granted a directed verdict because he found that Steven had not presented legally sufficient evidence of “malice.” “Malice in the law of malicious prosecution does not refer to mean or evil intent but rather connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice.” Id. at 73 (¶18). “As such, it refers to the defendant's objective, not his attitude.” Strong v. Nicholson, 580 So. 2d 1288, 1293 (Miss. 1991). “Malice may be and usually is shown by circumstantial evidence. The jury may infer malice from the facts of the case.” Id. “Malice may be inferred as well from the fact that a defendant may have acted with reckless disregard for the plaintiff's rights.” Id. “Furthermore, [the Mississippi Supreme] Court has emphasized that since the question of malice is a question of fact, it is to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence.” Benjamin v. Hooper Elec. Supply Co., 568 So. 2d 1182, 1191 (Miss. 1990).

¶42. “Moreover, absence of probable cause for the prosecution is circumstantial evidence of malice.” Id. Indeed, a jury may “infer malice” from the “absence of probable cause.” Lochridge v. Pioneer Health Servs. of Monroe Cnty. Inc., 86 So. 3d 942, 949 (¶26) (Miss. Ct. App. 2012). “In order to find probable cause there must be a concurrence of (1) an honest belief in the guilt of the person accused and (2) reasonable grounds for such belief. One is as essential as the other.” Benjamin, 568 So. 2d at 1190.

¶43. Here, if Steven's testimony is believed, Kierra knew that her allegations of sexual abuse were completely false when she made them. If that is true, Kierra's primary purpose in making the allegations clearly was not “bringing an offender to justice.” Croft, 910 So. 2d at 73 (¶18). Rather, if Steven's testimony is believed, Kierra knew that Steven had done nothing wrong, and it follows that she caused his prosecution for some improper purpose. Indeed, there is no proper purpose for knowingly and falsely accusing someone of heinous crimes. As the Restatement (Second) of Torts puts it, “The only proper purpose for which criminal proceedings can be instituted is that of bringing an offender to justice and thereby aiding in the enforcement of the criminal law. If the person initiating criminal proceedings does not himself believe in the guilt of the accused, it is plain that he cannot have a proper purpose.” Restatement (2d) of Torts § 668 cmt. e (1977); see also Dan B. Dobbs et al., Dobbs’ Law of Torts § 589 (2d. ed. updated Apr. 2025) (“Courts can easily infer malice if the accuser knowingly asserts falsehoods.”).

¶44. In addition, if Steven's testimony is credited, then there was no probable cause for instituting the prosecution. As stated above, “an honest belief in the guilt of the person accused” is “essential” to a finding of probable cause. Benjamin, 568 So. 2d at 1190 (emphasis added). If the jury found Steven credible, it could have inferred malice from a lack of probable cause. Lochridge, 86 So. 3d at 949 (¶26).

¶45. The majority opinion suggests that the grand jury's indictment of Steven is significant to this issue. Ante at n.13. But in Springfield v. Members 1st Community Federal Credit Union, 106 So. 3d 826 (Miss. Ct. App. 2012), this Court indicated that an indictment does not even equate to a prima facie case of probable cause. Id. at 834 (¶23). After discussing the Mississippi Supreme Court's opinion in Royal Oil Co. v. Wells, 500 So. 2d 439 (Miss. 1986), and decisions from other states, see Springfield, 106 So. 3d at 829-33 (¶¶8-20), this Court stated that “if an indictment could break the chain of causation and nullify the claim, the Mississippi Supreme Court would have had no reason to discuss [in Royal Oil] that a conviction only made out a prima facie case for the presence of probable cause in such a claim.” Id. at 834 (¶21). This Court further stated that even though a grand jury had indicted the plaintiff in Springfield, the defendant would “not ever be ‘armed with a prima facie case’ of probable cause.” Id. at (¶23) (quoting Royal Oil, 500 So. 2d at 443).

¶46. More important, regardless of the existence of an indictment, Steven presented sufficient evidence for a rational jury to find that Kierra falsely accused him of sexual abuse, knowing that her allegations were false. As this Court has explained in another case in which a grand jury had indicted the plaintiff, such evidence is sufficient to permit the jury to find both an absence of probable cause and malice:

Considering the evidence in the light most favorable to [Steven], jurors could reasonably find [Kierra] lacked an honest belief or reasonable grounds to believe [Steven] committed any [crime]. Probable cause requires the concurrence of an honest belief in the guilt of the person accused and reasonable grounds for such belief. The absence of probable cause in the institution of a criminal proceeding would permit but not require a factfinder to infer malice․ [T]he question of malice is to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence. The defendant's improper purpose usually is proven by circumstantial evidence, and the lack of probable cause for the initiation of the criminal proceedings is evidence of an improper purpose.

Lochridge, 86 So. 3d at 949 (¶26) (citations omitted).¹⁹

¶47. As stated above, “[the Mississippi Supreme] Court has emphasized that since the question of malice is a question of fact, it is to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence.” Benjamin, 568 So. 2d at 1191. Because Steven's testimony provided a basis for the jury to infer and find malice, the trial court erred by granting Kierra's motion for a directed verdict.²⁰

II. Kierra's Fraud Counterclaim

¶48. On cross-appeal, the majority finds that the trial judge committed reversible error by dismissing Kierra's fraud counterclaim prior to trial. However, I would hold that the jury's verdict rendered harmless any possible error in the pretrial dismissal.

¶49. Kierra's counterclaim for fraud alleged as follows:

Approximately 10 times in 2014 and 2015, when Kierra ․ was a minor, (at times forcefully and always without her consent), ․ Steven ․ groped her breasts and performed oral sex on her․ [T]o persuade Kierra ․ to submit to the aforementioned sexual activities, ․ Steven ․ falsely stated to Kierra ․ that there was nothing wrong with his actions, she was lucky to have a father who would do this for her, that the experiences would prepare her for future partners, and that he was going to take his own life if she would not submit. Steven ․ knew of the falsity of those statements, but Kierra ․ did not. Kierra ․ rightfully relied and acted upon those statements, which were material, as Steven ․ intended she should.

¶50. At trial, the jurors were instructed that to find for Kierra on her claim for intentional infliction of emotional distress, they had to “find by a preponderance of the evidence all of the following elements”: (1) that Steven “acted willfully and wantonly towards Kierra ․ by fondling her breasts and performing oral sex on her”; (2) that Steven's “actions evoke outrage or revulsion in a civilized society”; (3) that his “actions were directed at Kierra”; (4) that Kierra “suffered severe emotional distress as a direct result of Steven's ․ action”; and (5) that such emotional distress was a foreseeable result of Steven's intentional acts. The jury was also instructed that to find for Kierra on her federal claim, they had to “find by a preponderance of the evidence all of the following elements”: (1) that Kierra was under the age of 18 at the time of the alleged abuse; (2) that Steven was a U.S. citizen; (3) that Steven traveled in foreign commerce; (4) that while in China, Steven “engaged in illicit sexual conduct with Kierra”; and (5) that Kierra “suffered harm as a result.” As noted above, the jury subsequently returned a verdict specifically finding that Kierra did not prove either claim “by a preponderance of the evidence.”

¶51. It is apparent from the verdict that the jury was not persuaded “by a preponderance of the evidence” that Steven sexually abused Kierra. That is, the jury did not believe that Kierra's claims were “more likely true than not.” Cassell v. Cassell, 389 So. 3d 305, 315 (¶25) (Miss. 2024). In light of the jury's verdict, it is inconceivable that the jury would have found for Kierra on her fraud claim, which was premised on the very same allegations of sexual abuse. This is especially true because, unlike Kierra's other claims, “[t]he elements of fraud[ ] ․ must be proven by clear and convincing evidence.” Levens v. Campbell, 733 So. 2d 753, 761 (¶35) (Miss. 1999) (emphasis added). “Clear and convincing evidence is such a high evidentiary standard that it surpasses even the standard of overwhelming weight of the evidence.” Miss. Comm'n on Jud. Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016) (quotation marks omitted). There is no realistic likelihood that the same jury that found that Kierra failed to prove her other claims by a mere preponderance of the evidence would have also found that she proved fraud by clear and convincing evidence. Accordingly, any error in dismissing Kierra's fraud claim was clearly harmless and is not grounds for a new trial. See M.R.C.P. 61 (“[N]o error in any ruling or order or in anything done or omitted by the court ․ is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).²¹

¶52. The majority opinion states that “[w]e do not know what, if any, additional evidence or argument Kierra would have presented at trial in support of her counterclaim for fraud, but she had the right to present it and have the jury instructed on the elements of fraud.” Ante at ¶31. However, Kierra testified freely at trial regarding all of Steven's alleged misrepresentations, i.e., all the things he allegedly told her to keep her from disclosing the alleged abuse. There is no basis for the majority's speculation that Kierra refrained from offering some other or different evidence that she might present in support of a fraud claim. More important, there is simply no logical possibility that the same jury that found Kierra did not prove sexual abuse at all would have nonetheless found that she proved Steven committed fraud to facilitate or cover up the same sexual abuse.

¶53. In summary, because the trial judge erred by granting Kierra's motion for a directed verdict on Steven's malicious prosecution claim, I would reverse and remand for a new trial on that claim. I would affirm the dismissal of Kierra's fraud claim because any error in dismissing that claim prior to trial was clearly harmless in light of the subsequent jury verdict in favor of Steven. Accordingly, I respectfully dissent.

FOOTNOTES

1.   Lenise Grayson, who is also Kierra's adoptive mother, has not participated in the appeal nor has her attorney entered a notice of appearance. Grayson was represented by separate counsel in the trial court, and she asserted separate counterclaims, which the trial court later dismissed. The issue on direct appeal is the same as to appellees Grayson and Kierra. Grayson has not filed an appellee's brief, but rather than apply the usual standard for such cases, see Holloway v. Jones, 492 So. 2d 573, 573-74 (Miss. 1986) (holding that when an appellee has not filed a brief or authorities, the appellate court “may regard such failure as conceding the claim of appellants,”) we will review the issue the same for both.

2.   According to Kierra, her father sexually abused her when she accompanied him on a business trip to China. Section 2255 provides that an individual who suffers personal injury (i.e., sexual abuse) as a minor while overseas may sue for damages.

3.   We will only discuss those claims relevant to the arguments raised by the parties on appeal.

4.   Although the motion was titled, “Plaintiff's Motion for Summary Judgment against Defendant Kierra Dowdy,” the content of the motion expressly argued for summary judgment only for Grayson's counterclaims, not Kierra's. (Emphasis added).

5.   On February 10, 2023, Steven renewed his motion for summary judgment against Grayson, arguing that she had not filed a response to the motion, nor had Grayson's counsel “present[ed] any arguments in response to” his motion for summary judgment. The trial court subsequently granted Steven's summary judgment motion against Grayson on February 28, 2023, dismissing her counterclaims with prejudice. Grayson has not appealed this judgment. She participated at trial only as a defendant against Steven's claim for malicious prosecution.

6.   A transcript of that hearing is not in the court's record.

7.   The court granted Kierra's motion for summary judgment as to Steven's claims for slander, false arrest, libel, and civil conspiracy.

8.   See Cutrer v. Singing River Health Sys., 302 So. 3d 648, 658 (¶36) (Miss. Ct. App. 2020) (stating that a “trial court is free to reconsider and reverse [an interlocutory ruling] for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law”).

9.   These included Kierra's counterclaims for assault, battery, breach of fiduciary duty, fraud, and libel) and Grayson's claims for IIED, negligent infliction of emotional distress, unjust enrichment, fraud, libel, abuse of process and malicious institution of civil proceedings.

10.   Although not before us on appeal, the court also dismissed Kierra's claim for conversion but denied Steven's motion for a directed verdict as to the claims for intentional infliction of emotional distress and personal injury under 18 U.S.C. § 2255. The jury returned its verdict, finding Kierra failed to prove by a preponderance of the evidence all the elements of her claims of intentional infliction of emotional distress and personal injury from illicit sexual conduct in a foreign place. The court entered the judgment on August 4, 2023.

11.   In responding to Steven's motion for reconsideration, the trial judge acknowledged the burden of proof in civil actions (“Yes, sir, I understand that”) but affirmed his conclusion that the evidence did not satisfy the element of malice.

12.   After the car accident that killed her mother and seriously injured Kierra, an annuity and trust totaling $1.38 million had been set up for Kierra from insurance proceeds.

13.   The dissent also asserts that if Steven was found to be credible, the jury “could have inferred malice from a lack of probable cause.” Steven did not make this specific argument either before the trial court or on appeal; therefore, this argument would be waived. See Austin v. State, 971 So. 2d 1286, 1288 (¶8) (Miss. Ct. App. 2008) (“It is well settled that issues not raised below may not be raised on appeal.”).Furthermore, the court did not base its ruling on whether there was lack of probable cause. Arguing in support of the motion, Kierra's counsel did note that the indictment, while “not dispositive,” was “prima facie evidence that there was indeed probable cause.” See Springfield v. Members 1st Cmty. Fed. Credit Union, 106 So. 3d 826, 830 (¶12) (Miss. Ct. App. 2012) (noting that “generally, the return of an indictment by a grand jury is ‘prima facie, but not conclusive, evidence of probable cause’ in malicious prosecution cases” (quoting 54 C.J.S. Malicious Prosecution § 48 (2010)). Steven's attorney argued that “oftentimes what happens with a grand jury is nothing but a rubber stamp of what the prosecutors present.” Notwithstanding, as the trial judge noted, Kierra's counsel “hung his hat on the element of malice”; so the parties proceeded to address only that element, and the court's ruling to grant a directed verdict rested solely on its finding that the element of malice was not proved. As previously stated, Steven's counsel never argued that malice could be inferred by the lack of probable cause.

14.   The district court also determined the plaintiff had failed to demonstrate that the the defendant “lacked probable cause for initiating his prosecution[.]” Eubanks, 2008 WL 2779308, at *4.

15.   In her brief, Kierra has alternatively argued that Steven's “untimely reply argument could be considered a motion for judgment on the pleadings under Rule 12(c).”

16.   Similarly, our Court has recognized that “[a]bsent a Rule 54(b) certification, an order granting partial summary judgment is interlocutory.” Miller v. Cont'l Min. Processing, 39 So. 3d 998, 1000 (¶9) (Miss. Ct. App. 2010).

17.   We find the cases noted by the dissent distinguishable from the present facts, as they involve either (1) the same tort claim (unjust enrichment) against separate defendants, see Brandt v. Wand Partners, 242 F.3d 6, 16 (1st Cir. 2001); or (2) claims involving related elements of proof that were not proven, see Abbasid Inc. v. First Nat. Bank of Santa Fe, 666 F.3d 691, 696-97 (10th Cir. 2012).

18.   To clarify, Kierra alleged that Steven made the misrepresentations to persuade her “to submit” to the sexual abuse by telling her that the actions were not wrong and that she was “lucky” to have a father who would provide her with this experience.

19.   I do not agree that Steven has “waived” any argument. Ante at n.13. In response to Kierra's motion for a directed verdict and again on appeal, Steven has argued that he has presented sufficient evidence for a jury to find both of the related elements of malice and an absence of probable cause.

20.   Steven believed that Kierra accused him of sexually abusing her because she was angry that he would not allow her to transfer to a different school. Steven testified that he and Kierra had argued about the subject just before she accused him and that Kierra was “convinced” he was “lying to her” when he explained why she could not transfer. Kierra characterizes Steven's testimony as “speculative,” but “[m]alice may be and usually is shown by circumstantial evidence. The jury may infer malice from the facts of the case.” Strong, 580 So. 2d at 1293. More important, the law does not require Steven to prove a precise improper motive but only that Kierra's primary purpose in accusing him was something “other than that of bringing an offender to justice.” Croft, 910 So. 2d at 73 (¶18). Steven's testimony, if believed, was sufficient to meet that burden.

21.   See also Abbasid Inc. v. First Nat'l Bank of Santa Fe, 666 F.3d 691, 696 (10th Cir. 2012) (“[W]e need not resolve whether a preverdict dismissal of a claim was proper if the jury's verdict on the remaining claims shows that any error in failing to present the dismissed claim to the jury was harmless.”); Brandt v. Wand Partners, 242 F.3d 6, 16 (1st Cir. 2001) (“[A]ny error” in a pretrial order granting summary judgment was “harmless” in light of a subsequent jury verdict because “there [was] no practical likelihood that the dismissed claim could have succeeded where the tried claim failed. Other circuits have similarly found summary judgment orders harmless based on the implications of subsequent jury verdicts.”).

BARNES, C.J., FOR THE COURT:

CARLTON, P.J., McCARTY, WEDDLE AND ST. PÉ, JJ., CONCUR. McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LAWRENCE AND EMFINGER, JJ.; WESTBROOKS, J., JOINS IN PART.