DAVID MICHAEL LYON JR. v. BILLY MCGEE
NO. 2016-CA-00637-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
01/23/2018
HON. L. BRELAND HILBURN
DATE OF JUDGMENT: 03/01/2016
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE
ATTORNEY FOR APPELLEE: PATRICK H. ZACHARY
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
DISPOSITION: ON DIRECT APPEAL: AFFIRMED; ON CROSS-APPEAL: AFFIRMED - 01/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
¶1. David Michael Lyon (Lyon) sued Billy McGee in the Forrest County Circuit Court seeking damages for alienation of affection after Lyon and his former wife Emma Robin (Robin) divorced. Lyon claimed that McGee interfered with his marriage, causing Robin to abandon the marriage and have an adulterous relationship with McGee. Lyon discovered the relationship in October 2013 – after the Lyons had separated and Robin had filed for divorce, but before the divorce was final. Discovery ensued, and McGee admitted to having an affair with Robin commencing on October 4, 2013. McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee argued dismissal was proper because Lyon ultimately agreed to an irreconcilable-differences divorce, which was at odds with an alienation-of-affection claim. According to McGee, he could not have contributed to the end of the marriage under this form of divorce, as reconciliation of the Lyons was impossible. Further, McGee argued the defenses of issue preclusion and/or judicial or collateral estoppel barred relitigation of the grounds for divorce that an alienation-of-affection claim would create. Alternatively, McGee‘s motion said summary judgment was proper because there was no causal connection between McGee‘s conduct and any alleged loss by Lyon, because McGee‘s conduct with Robin occurred long after the Lyons’ separation in July 2013. McGee claimed that he had no contact with Robin prior to this date.
¶2. The trial court granted McGee‘s motion for summary judgment, finding Lyon did not sufficiently respond to establish a genuine issue of material fact, i.e., that McGee was involved with Robin prior to their date of separation. Lyon filed a motion to reconsider, which was denied. Lyon timely appeals, and McGee cross-appeals.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. In April 2013, Robin initially asked Lyon for a divorce “out of the blue.” Lyon was surprised, as he felt they “were living the American dream.” On July 12, 2013, the Lyons decided to separate after a fourteen-year marriage that bore two children. On July 25, 2013, Robin filed for a divorce on the grounds of habitual cruel and inhuman treatment, or alternatively irreconcilable differences. On June 3, 2014, a Property Settlement and Child-Support Agreement, and judgment of divorce based on irreconcilable differences was entered in the Perry County Chancery Court.
¶4. On October 3, 2014, Lyon sued McGee for alienation of affection in the Forrest County Circuit Court, seeking one million dollars in actual damages. Lyon contended that McGee interfered with the Lyons’ relationship and “destroyed the marriage and deprived [Lyon] of the affections of his former wife,” and “but for” the intentional actions of McGee, Lyon would still be married. He claimed to discover the relationship in October 2013, after the couple had separated, but before they were divorced. He made the discovery through cellular-telephone records and McGee‘s spouse, who had put a recording device in McGee‘s vehicle.
¶6. On January 20, 2016, McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee again argued collateral and/or judicial estoppel and issue preclusion barred the claim. McGee also argued, almost as an afterthought, that the timing of McGee and Robin‘s affair occurred long after the Lyons’ separation. Therefore, McGee reasoned that Lyon could not prove the causal-connection element of his claim – no conduct of McGee “caused the loss of affection or consortium” because the parties were already separated. McGee attached to his motion Lyon‘s complaint, his answer, the complaint for divorce, and the settlement agreement, but no sworn statements such as affidavits, depositions, or discovery materials. McGee‘s supporting brief focused on the estoppel arguments. Lyon filed a memorandum brief in opposition to the motion for summary judgment, only addressing McGee‘s judicial and collateral estoppel or issue preclusion arguments and, like McGee, did not address the causation/timing argument. Moreover, he did not attach any evidence to his memorandum brief. McGee filed a rebuttal memorandum brief, addressing both the estoppel and causation issues. He argued Lyon‘s claim was barred by his withdrawal of fault grounds and acceptance of an irreconcilable-differences divorce; thus, the causation element was not met. He attached a portion of Lyon‘s deposition wherein Lyon explained that Robin had agreed to his receiving sixty percent of the property division if he would agree to an irreconcilable-differences divorce instead of a divorce on the grounds of adultery.
¶7. In February 2016, a hearing was held on McGee‘s motion for summary judgment, which the circuit judge took under advisement. Also addressed were two motions in limine filed by McGee and Lyon.1 McGee sought to exclude voice recordings of conversations that he had with Robin. The circuit judge granted the motion as the voice recordings were obtained in violation of statutory law, but ruled he would hear further argument at an appropriate time if the recordings became relevant. McGee also sought to exclude emails between his wife and Lyon about the voice recordings. The circuit judge found the emails would be prejudicial unless found relevant as to contact prior to October 2013. Further, McGee requested the court not mention “anything prior to October 2013,” because in Lyon‘s deposition he responded in the negative when asked whether he had any proof of intimate contact between his wife and McGee prior to that date. The circuit judge stated that the motion was granted unless there was specific relevant evidence presented. Lyon also filed a motion in limine to exclude any evidence of a relationship between him and a third party after October 2013. That motion was granted.
¶8. On March 1, 2016, the circuit judge entered an order granting summary judgment
¶9. In response, Lyon moved for reconsideration. He argued that there were uncontested facts before the court that were sufficient to defeat summary judgment. Importantly, he argued that there was evidence the affair took place during the Lyons’ attempts to reconcile. First, as stated in McGee‘s response to interrogatories confirming the affair, Lyon claimed the sexual relationship between McGee and Robin had existed at the latest in October 2013, when Lyon was attempting to reconcile his marriage, even though by then Robin had filed for divorce. Second, he claimed McGee took Robin into his home to cohabitate, ejecting his own wife. Third, Lyon stated telephone records show “sudden and dramatic” daily communication between McGee and Robin beginning in May 2013, before which there was no communication. Lyon also argued that McGee, in his motion for summary judgment, failed to meet his burden of showing a lack of genuine issue of material fact; he only mentioned facts pertaining to his procedural arguments of judicial and/or collateral estoppel. Moreover, Lyon noted that McGee did not support his claim with any evidence such as affidavits or discovery responses. Lyon attached numerous discovery documents to his motion to disprove McGee‘s claim, including over 500 pages of McGee‘s cellular-telephone records, and emails between Lyon and McGee‘s wife about the recording device put in McGee‘s vehicle to catch McGee and Robin ”in flagrante delicto.”
¶10. McGee responded, again arguing that there was no causal connection for the claim because the only proof presented as to when the affair started was McGee‘s sworn interrogatory responses stating the affair began on October 4, 2013, long after the parties had separated. A hearing was held, and the circuit court ultimately denied Lyon‘s motion to reconsider. Lyon appeals both rulings on the motion for summary judgment and motion to reconsider. McGee cross-appeals, arguing that if summary judgment is found improper, it should be affirmed based upon judicial estoppel.
DISCUSSION
I. Summary Judgment
¶11. The standard of review for a trial court‘s grant or denial of summary judgment is de novo. Ill. Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1044 (¶16) (Miss. 2015). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there
¶12. McGee‘s motion focused on the estoppel bars, but secondarily addressed lack of proof for the causation element. Applying the judicial-estoppel doctrine to alienation-of-affection claims, the Mississippi Supreme Court has stated “a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation.” Wood v. Cooley, 78 So. 3d 920, 926 (¶14) (Miss. 2011) (quoting Dockins v. Allred, 849 So. 2d 151, 155 (¶7) (Miss. 2003)). Similarly, collateral estoppel bars a party from relitigating specific issues that have already been litigated in a former action. Ward Gulfport Props. L.P. v. Miss. State Highway Comm‘n, 176 So. 3d 789, 794 (¶14) (Miss. 2015).
¶13. McGee argued that Lyon‘s alienation-of-affection claim was judicially estopped because the couple entered into an agreement whereby Lyon withdrew fault grounds of adultery for irreconcilable differences. Accordingly, McGee argues he cannot be at fault for breaking up a marriage that was already irreconcilably broken. In its order granting summary judgment, the trial court did not address the estoppel argument, but focused on causation.
¶14. We find McGee‘s estoppel and issue-preclusion arguments are without merit. Just because the Lyons were granted an irreconcilable-differences divorce does not mean there was no adultery. As here, divorcing parties often withdraw fault grounds and opt for irreconcilable differences. See Watson v. Watson, 882 So. 2d 95, 108-09 (¶¶67-68) (Miss. 2004) (In an irreconcilable-differences divorce, a chancellor was found in error for dividing assets equally in property settlement and not taking into consideration the husband‘s long-term adulterous conduct that broke up the marriage.); Driste v. Driste, 738 So. 2d 763, 766 (¶9) (Miss. Ct. App. 1998) (In an uncontested divorce, a court held that limited testimony on fault may be introduced for Armstrong factors to determine alimony.). The fact that the divorce is granted without fault does not mean there was no fault, or that fault cannot be considered for other purposes.
¶15. Regarding causation, McGee had the initial burden to show that Lyon would be unable to prove an essential element of his claim. See Palmer v. Biloxi Reg‘l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss. 1990). The elements of alienation of affection are: “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Fitch v. Valentine, 959 So. 2d 1012, 1025 (¶36) (Miss. 2007). “A claim for alienation of affection does not require that the plaintiff prove an adulterous relationship . . . .” Bland v. Hill, 735 So. 2d 414, 417 (¶13) (Miss. 1999) (citation omitted). “The ‘wrongful’ conduct necessary to maintain an action for alienation of affections is the direct and intentional interference with the marriage relationship by the defendant.” Children‘s Med. Group P.A. v. Phillips, 940 So. 2d 931, 934 (¶9) (Miss. 2006). The plaintiff must establish that his spouse
¶16. In his answer, McGee stated that he was not at fault for the demise of the Lyons’ marriage because he had no contact with Lyon‘s wife until after the Lyons were separated on July 12, 2013. Lyon argues this allegation, in an unsworn pleading, is insufficient to establish a lack of a genuine issue of material fact; thus, summary judgment was improper.
¶17. McGee responded that the trial court relied on more than just his answer to find no genuine issue of material fact. Also attached to his motion was the settlement agreement signed by both parties, which stated “irreconcilable differences” had arisen between Robin and Lyon, resulting in their separation on July 12, 2013. McGee cites the settlement agreement as proof that the marriage was “irretrievably broken” as of the date of separation, July 12, 2013. While the agreement does not use that wording, it does state that “irreconcilable differences have arisen between Robin and [Lyon] resulting in the parties having heretofore separated on the 12th day of July, 2013.”
¶18. After reviewing the record, we find that McGee‘s motion for summary judgment met his initial burden of showing a lack of a genuine issue of material fact as to a causal connection. While McGee did not offer any sworn evidence to support his argument, but merely his answer, where he stated he was not at fault because his and Robin‘s contact occurred after separation, Rule 56(b) states that a party may move for summary judgment with or without supporting affidavits. See also Johnson v. Pace, 122 So. 3d 66, 68 (¶8) (Miss. 2013); Lott v. Purvis, 2 So. 3d 789, 791 (¶9) (Miss. Ct. App. 2009). In Rule 56 of the Federal Rules of Civil Procedure, failure to introduce affidavits will not prevent summary judgment if the prerequisites are met in some other way. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2722 at 394-95 (4th ed. 2016). Further, the Mississippi Supreme Court has made clear that the movant only has the burden of producing evidence in support of the motion if the movant has the burden of proof on the issue at trial. Karpinsky v. Am. Nat‘l Ins. Co., 109 So. 3d 84, 88-89 (¶11) (Miss. 2013) (citation omitted); Haley v. Jurgenson, 154 So. 3d 935, 937 (¶7) (Miss. Ct. App. 2015). Instead, “the movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” Karpinsky, 109 So. 3d at 88 (¶11) (citation omitted). Moreover, summary judgment is appropriate when the nonmovant fails to “make a showing sufficient to establish the existence of an element essential to the party‘s case, and on which that party will bear the burden of proof at trial.” Id. at 89 (¶11) (citation omitted).
¶19. Here, McGee does not have the burden of proof at trial; therefore, at the summary-judgment stage, he merely had the burden of persuading the trial judge that his motion was proper. McGee cited to his answer that the affair did not begin until months after the Lyons’ separation, and then challenged Lyon to prove otherwise.3 Lyon wholly ignored the challenge.
surmised that there was no proof of an earlier relationship other than suspicions on the part of Lyon. We cannot say the circuit court erred in concluding that Lyon‘s references to the telephone records were insufficient to establish a genuine issue of material fact of McGee‘s involvement with Robin prior to the date of separation.
¶21. Next, Lyon argues that the circuit court improperly granted summary judgment because of Lyon‘s insufficient rebuttal to the unsupported claim that McGee raised in his answer. It is well established that the nonmoving party “may not rest upon the mere allegations or denials of the pleadings,” but “must set forth specific facts showing there is a genuine issue for trial.” Bosarge v. LWC MS Props. LLC, 158 So. 3d 1137, 1142 (¶14) (Miss. 2015) (citation omitted).
¶22. We find Lyon presented no proof of causation in rebuttal that could be utilized by the circuit court. Similar to McGee, Lyon did not file any sworn statements or discovery materials to rebut McGee‘s claim of lack of proof for causation. Instead, Lyon focused his response on McGee‘s arguments for collateral/judicial estoppel and issue preclusion. It was not until Lyon‘s motion to reconsider that he offered discovery documents, but these, too, were without proper affidavits or sponsors. When the motion for summary judgment was heard, no evidence was presented to show a triable issue regarding causation. Therefore, we cannot say that the circuit court erred in granting McGee‘s motion for summary judgment.
II. Motion for Reconsideration
¶23. Lyon argues that the circuit court erred in denying his motion for reconsideration under
¶24. Lyon argues that the evidence he provided in support of his motion for reconsideration established a genuine issue of fact that McGee and Robin had a relationship that predated July 12, 2013 – the date of the Lyons’ separation. He also claims the evidence shows an issue of fact for the causal element.
¶25. Lyon attached numerous exhibits in support of this contention and his motion; however, none of it was appropriate for a motion to reconsider. Under
¶26. Further, the records6 only show an increase in communication; they do not prove an affair at the time. Our Court has recognized:
the circumstantial-evidence doctrine allows the jury to draw an inference of the defendant‘s negligence. . . . Circumstantial evidence is sufficient when it leads to an inference of negligence on behalf of one party. But circumstantial evidence that still leaves many inferences available is not sufficient as proof for necessary elements of a claim.
Walz v. HWCC-Tunica Inc., 186 So. 3d 375, 377-78 (¶¶12-13) (Miss. Ct. App. 2016) (This Court affirmed summary judgment in a slip-and-fall negligence case because circumstantial evidence surrounding the fall did not create an inference that a business-owner caused a dangerous condition.). Lyon argues that the telephone records lead to an inference that the affair occurred earlier; however, they do not satisfy his burden of proof since they only imply the affair might have started earlier. There is no indication of what was discussed during the telephone calls, or that McGee was inducing Robin to abandon her marriage. Thus, the records create no inference sufficient to satisfy Lyon‘s burden of proof.
¶27. A motion for summary judgment “necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Here, as in Liberty Lobby, the ruling judge must ask at the summary-judgment stage “whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.” Id. Even on reconsideration, with Lyon‘s belated attempt to enter evidence supporting his claim, Lyon did not meet this burden of proof.
¶28. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.
LEE, C.J., IRVING, P.J., CARLTON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND FAIR, J., NOT PARTICIPATING.