Bailey v. Faulkner

CourtSupreme Court of Alabama
Citation940 So.2d 247
Docket Number1040880.
PartiesM. Floyd BAILEY, Jr. v. James H. FAULKNER III.
Decision Date06 January 2006

Daniel S. Wolter of Gaines, Wolter & Kinney, P.C., Birmingham; and Jeffrey W. Smith of Slaten & O'Connor, P.C., Montgomery, for appellant.

Randy Myers and Frank H. Hawthorne, Jr., of Hawthorne & Myers, LLC, Montgomery, for appellee.

WOODALL, Justice.

M. Floyd Bailey, Jr., appeals from a judgment entered on a jury verdict in favor of James H. Faulkner III in Faulkner's action against Bailey arising out of a consensual, sexual relationship between Bailey and Paris Faulkner, who, at the time of that relationship, was Faulkner's wife. We reverse and remand.

I. Factual Background

In December 1999, the Faulkners were attending the Dalraida Church of Christ in Montgomery ("Dalraida"). Bailey, who has a bachelor of arts degree in Bible from Faulkner University, was Dalraida's pastor. At that time, the elders of Dalraida hired Paris to serve as the church secretary. The job responsibilities of the secretary and the pastor occasioned frequent personal interaction between Paris and Bailey.

Bailey soon discovered that the Faulkners were engaged in marriage counseling with Dr. Terry Gunnels, a licensed counselor. In March 2000, Bailey began advising the Faulkners regarding their marital problems, and they discontinued their counseling sessions with Dr. Gunnels. According to James Faulkner, Bailey "assured" them that "he could spend a lot more time with [them] than [Dr.] Gunnels," and "guaranteed" them that "he could fix [their] marriage." That same month, Bailey and Paris secretly began a consensual, sexual relationship that lasted until July 2000.

In April 2000, Bailey learned that James had been offered employment in Baldwin County and that Paris did not want to move. Bailey urged James to decline the job offer, saying that the move "could break [the Faulkners'] marriage." James took Bailey's advice and declined the offer.

The relationship ended after James discovered it and confronted Paris and Bailey. After initially denying his involvement with Paris, Bailey eventually admitted it and resigned as pastor of Dalraida. Paris unsuccessfully sought reconciliation with James, who initiated divorce proceedings. The Faulkners were divorced on January 4, 2001.

On February 5, 2002, Faulkner sued Bailey. The complaint stated, in pertinent part:

"7. Defendant M. Floyd Bailey, Jr., while acting within the line and scope of his employment with [Dalraida], assumed the duty to counsel [Faulkner], and his wife at the time, concerning their marriage.

"8. Defendant M. Floyd Bailey, Jr., while acting within the line and scope of his employment with [Dalraida], negligently [and/or wantonly] performed said duties.

"9. As a proximate result of such negligence [and/or wantonness], Plaintiff James H. Faulkner, III, was damaged by the failure of his marriage and he has suffered extreme mental anguish as a result thereof."

(Emphasis added.)

The negligence and wantonness claims were tried before a jury. During the trial, Bailey filed timely motions for a judgment as a matter of law ("JML"). He argued, among other things:

"[I]t is clear from the testimony [that] this is ... a case of alienation of affection. It is couched in terms of negligent counseling to try to formulate a lawsuit. The testimony has been that Mr. Faulkner's damage was because of the affair. He said [he was] damaged because [Paris and Bailey] had the affair and it led to [his] divorce, which is the exact definition of alienation of affection."

The trial court denied those motions and instructed the jury on negligence and wantonness. The jury was instructed on compensatory damages, including damages for mental anguish, and on punitive damages. The jury awarded $67,000 compensatory damages and $2,000,000 punitive damages. After the trial, Bailey renewed his motion for a JML and, alternatively, moved for a new trial or a remittitur. The trial court reduced the punitive-damages award to $1,617,000, pursuant to Ala.Code 1975, § 6-11-21(d) and (f), but otherwise denied Bailey's postjudgment motion.

Bailey appealed. On appeal, he contends, among other things, that he is entitled to a JML, because, he argues, the claims Faulkner asserted at trial are, in substance, a claim of "alienation of affections," which, he argues, is not a cognizable theory of recovery under Alabama law. Alternatively, he argues that he provided the Faulkners "ministerial counseling," and that Faulkner's claims essentially allege "clergy malpractice," a cause of action that, Bailey insists, Alabama does not recognize. Faulkner contends that his claims allege negligent or wanton "marital counseling," which, he argues, is a cognizable cause of action in Alabama. We deem the dispositive issue to be whether Faulkner's claims amount to, in reality, a claim of alienation of affections traveling under the guise of negligent or wanton marital counseling.1

II. Discussion

The standard by which we review a ruling on a motion for a JML is "`materially indistinguishable from the standard by which we review a summary judgment.'" Flint Constr. Co. v. Hall, 904 So.2d 236, 246 (Ala.2004) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). Thus, the standard of review is de novo. See Story v. RAJ Props., Inc., 909 So.2d 797, 801 (Ala.2005); House v. Jefferson State Cmty. College, 907 So.2d 424, 426-27 (Ala.2005); and Crutcher v. Wendy's of North Alabama, Inc., 857 So.2d 82, 85 (Ala.2003).

Bailey contends that the purported negligent/wanton-counseling claims "are really claims for alienation of affections and therefore barred by Ala.Code § 6-5-331 (1975)." Bailey's brief, at 25. "[T]he so-called `heart balm' or amatory torts," Doe v. Moe, 63 Mass.App.Ct. 516, 521, 827 N.E.2d 240, 245 (2005), were abolished by § 6-5-331, Ala.Code 1975, which provides: "There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over."

"The gist of an alienation of affections action is the intentional or purposeful .... interference with the marriage relationship." D.D. v. C.L.D., 600 So.2d 219, 222 (Ala.1992) (emphasis added). "An action for alienation of affection permitt[ed] recovery for `loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of the defendant have brought.'" Andrews v. Gee, 599 F.Supp. 251, 253 (D.S.C.1984) (quoting Scott v. Kiker, 59 N.C.App. 458, 462, 297 S.E.2d 142, 146 (1982)). See also Parker v. Newman, 200 Ala. 103, 75 So. 479 (1917). Another element of damage is pecuniary loss, such as loss of income. Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980). Additionally, "punitive damages [could] be recovered for the tort of alienation of affections." Nelson v. Jacobsen, 669 P.2d 1207, 1219 (Utah 1983); see also Bland v. Hill, 735 So.2d 414, 420-21 (Miss.1999); and Oddo v. Presser, 158 N.C.App. 360, 367, 581 S.E.2d 123, 129 (2003), reversed on other grounds, 358 N.C. 128, 592 S.E.2d 195 (2004).

Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize "any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship." D.D., 600 So.2d at 223 n. 5 (emphasis added). For example, in D.D., this Court affirmed a summary judgment for the paramour and against the husband in his action against his wife's paramour for interfering with, and causing the dissolution of, his marriage. 600 So.2d at 221.

The husband's action purported to state claims of (1) abuse of process, (2) invasion of privacy, (3) negligence, (4) wantonness, and (5) intentional infliction of emotional distress.

"Specifically, the abuse of process claim [was] based on allegations that the third party [had] conspired with the wife to use the divorce action to establish that the husband was not the biological father of the child for the purpose of `depriving him of his ... constitutionally protected liberty interest in his relationship with [the child]'; the invasion of privacy claim [was] based on allegations that the third party [had] `made repeated telephone calls to [the husband and wife's] residence for the purpose of interfering with [the husband's] effort to preserve the integrity of his family'; the negligence and wantonness claims [were] based on allegations that the third party, after being told by his psychotherapist that his relationship with the wife was detrimental to the husband's physical and mental well-being, [had] `persisted and continued to contact [the husband and wife's home]'; and the claim alleging intentional infliction of emotional distress [was] based on allegations that the third party [had undertaken] and pursued a `sustained course of conduct to disrupt and destroy the integrity of [the husband's] family ... 1) by refusing [the husband's request] that he stop seeing and contacting [the wife and persisting in] his meetings and telephone conversations with [the wife,] while falsely representing to [the husband] ... that his purpose for continuing the relationship with [the wife] was ... to see if [the third party and the husband] could keep [their respective] family units together ... 2) by having clandestine meetings with [the wife] in shopping center parking lots, public parks and other places ... 3) by telephoning and otherwise making contact with [the wife without the husband's knowledge] ... 4) by [threatening] to [get a] divorce and [to marry the wife] if [the husband interfered with his relationship with the wife] ... 5) by secretly ... having genetic blood tests performed on himself, on [the wife], and on the child ... 6) by lying to [the husband as to whether blood tests had been performed] ... 7) by concealing from [the husband] his licentious relationship with [the wife] and the...

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