Lentz v. Baker

• Decision Date: 16 May 1989
• Docket Number: No. 168,168
• Parties: Gary Benton LENTZ, Plaintiff-Appellant, v. Willis E. BAKER, Jr., Defendant-Appellee. 792 S.W.2d 71
• Court: Tennessee Court of Appeals

Page 71

792 S.W.2d 71

Gary Benton LENTZ, Plaintiff-Appellant, v. Willis E. BAKER, Jr., Defendant-Appellee.

No. 168.

792 S.W.2d 71

Court of Appeals of Tennessee,

Eastern Section.

May 16, 1989.

Published in Accordance

with Rule 11 of the

Tennessee Court of Appeals.

A. Thomas Monceret, Knoxville, for plaintiff-appellant.

J. Randolph Humble, Knoxville, for defendant-appellee.

OPINION

ANDERSON, Judge.

Plaintiff appeals the jury verdict finding liability but no damage in his alienation of affections suit on grounds the verdict is inconsistent. We affirm.

Gary and Teresa Lentz married in June 1976. As a journeyman boilermaker, plaintiff Gary Lentz experienced lengthy periods of unemployment. When employed, he worked long hours, and at times was required to leave his family and travel to other states to obtain employment. As a result of the long hours, the absences, and the lack of money, the marriage was under stress. Sexual incompatibility and plaintiff's physical abuse of the wife were also problems early in the marriage. Although Teresa Lentz worked toward a nursing degree in those early years, plaintiff did not want her to work, and when she finally obtained her degree and went to work, she did so against his will.

Sometime in 1979 or 1980, Teresa Lentz began attending the aptly-named Turning Point Baptist Church; met defendant Willis Baker, the church's preacher; and became the church pianist. Plaintiff also joined the church and became very active. He even assisted other church members in the construction of a swimming pool at Preacher Baker's home, defined by the preacher as "church work" on the dubious proposition that it could double as a baptismal fount.

In August 1981, Teresa Lentz and Preacher Baker became sexually involved, a fact known only to themselves. In September 1981, the men of the Turning Point Baptist Church held a meeting and confronted Preacher Baker with rumors concerning his relationship with Teresa Lentz, which he denied. Although plaintiff was present at the meeting, he refused to believe the rumors because of his friendship with Preacher Baker. In late 1983, plaintiff finally became suspicious and confronted Teresa Lentz and Preacher Baker, but received assurances from both that they were not involved in an extramarital relationship.

In February 1984, Teresa Lentz filed for divorce. Later that spring she admitted her relationship with Preacher Baker to plaintiff, and he filed a counter-claim for divorce on adultery grounds in July of 1984. At trial, proof was offered of adultery with several persons, including Baker. The Chancellor granted plaintiff the divorce, as well as custody of the two older children. Custody of a third child, whose paternity was disputed, was awarded to Teresa Lentz.

In March 1987, plaintiff filed a complaint for alienation of affections against Preacher Baker. The case was tried in March 1988, and the jury found in plaintiff's favor on liability; however, no damages were awarded. Plaintiff appeals.

INCONSISTENT VERDICT

Plaintiff contends on appeal that a jury verdict in his favor with damages assessed at zero is internally inconsistent and therefore should be reversed. He argues Clements v. Veterans Cab Co. supports his contention. In Clements, this Court observed that "a verdict in favor of the plaintiff, with no damages awarded, is erroneous on its face. The mere fact that the verdict is in favor of the plaintiff, without anything else appearing, necessarily requires an award of some damages, even if only nominal damages, in favor of the plaintiff." 48 Tenn.App. 152, 159, 344 S.W.2d 572, 575 (1960). The Clements court went on to reverse the judgment and remand it to the trial court for a new trial.

However, the Clements court's decision was based on the jury's finding the plaintiff suffered personal injury which "made it incumbent upon the jury to find damages in some amount." By contrast in Newsom v. Markus, a personal injury case, the jury awarded no damage and this Court sustained the verdict because, although there was a duty and a breach, the jury found there had been no injury and "did not reach the issue of the amount of damages in her lawsuit." 588 S.W.2d 883, 888 (Tenn.Ct.App.1979).

The tort of alienation of affections is the "willful and malicious interference with the marriage relation by a third party, without justification or excuse." The marital interests protected by the tort "include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof," and services in the home and support. Donnell v. Donnell, 220 Tenn. (24 McCanless) 169, 179-80, 415 S.W.2d 127, 132 (1967). Thus, the essence of the tort is an injury to the right of consortium. Kelley v. Jones, 675 S.W.2d 189, 190 (Tenn.Ct.App.1984).

Most jurisdictions require that affection be destroyed or impaired as a result of defendant's interference. Restatement (Second) of Torts, Sec. 683 comment c (1977). Tennessee has chosen a different course. The Donnell court reaffirmed the rule that the depth or even existence of affection between spouses prior to defendant's interference is not a defense to the action, but "[i]t is well settled that the sincerity of the plaintiff's affection for his spouse may be looked to in considering the question of damages in an alienation of affections suit." Donnell, 220 Tenn. (24 McCanless) at 176, 415 S.W.2d at 131; Payne v. Williams, 63 Tenn. 583 (1874). It is a question for the jury as to whether a plaintiff lost the affection of his or her spouse prior to defendant's interference. Foster v. Copeland, 27 Tenn.App. 777, 780, 159 S.W.2d 96, 97 (1941).

In Donnell the court approved the following trial court jury charge as a correct statement of the law:

The depth of the affection between the plaintiff and her husband is not material as to the right of plaintiff in this case to maintain her suit or to recover an assessment of damages so far as the law is concerned. It makes no difference how little or whether there was any love at all, as a matter of fact, existing between the plaintiff and her husband, and if it has been shown as a matter of fact that she had little or no love for her husband, this is not a defense to this cause of action. That would be ... an element which you would consider in mitigation of damages.... [T]he defendant is entitled to show that there was no sincere affection between the husband and wife and thus no damages.

Donnell, 220 Tenn. (24 McCanless) at 176, 415 S.W.2d at 130-31 (emphasis added).

The amount of damages to award is a jury question, and "damages ... involving mental anguish, and such intangibles as humiliation, embarrassment, loss of consortium, et cetera, are extremely difficult to assess. The verdict of the jury concurred in by the trial judge is entitled to great weight." Donnell, 220 Tenn. (24 McCanless) at 187, 415 S.W.2d at 135.

The jury examined the proof in this case and determined there were no damages, a verdict approved by the trial judge as the thirteenth juror. We conclude that the jury could so determine under the Donnell holding and the proof in the record. We accordingly find the verdict was not internally inconsistent.

STATUTE OF LIMITATIONS

The defendant on appeal argues plaintiff's action should more correctly be characterized as a suit for criminal conversation, subject to a one-year statute of limitations and therefore barred. The tort of criminal conversation "means adulterous relations between the defendant and the spouse of the plaintiff." Rheudasil v. Clower, 197 Tenn. (1 McCanless) 27, 30, 270 S.W.2d 345, 346 (1954). Alienation of affections, on the other hand, may be brought without adulterous conduct. Id. According to defendant, plaintiff disguised his suit for criminal conversation as an action for alienation of affection in order to benefit from the three-year statute of limitations found in Tenn.Code Ann. Sec. 28-3-105. Defendant contends that alienation of affection claims which are incidental to criminal conversation claims are to be treated as criminal conversation actions, bringing the claim within the one-year statute of limitations in Tenn.Code Ann. Sec. 28-3-104. Roberts v. Berry, 541 F.2d 607 (6th Cir.1976). However, Roberts acknowledged that the two actions " 'are generally recognized as essentially different,' " and that " '[i]t is possible for a cause of action for either to exist without the other.' " Roberts, 541 F.2d at 609 (quoting Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808, 810 (1938)).

The gravamen or gist of the action where it is for criminal conversation is the adulterous intercourse, and the alienation of affections thereby resulting is regarded as merely a matter of aggravation, whereas the gravamen in the other case is the alienation of affections with malice or improper motives.

Roberts, 541 F.2d at 609 (quoting Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808, 810 (1938)).

Unlike Roberts, plaintiff here based his cause of action solely upon alienation of affection and no claim for criminal conversation was made, nor was the gist of the action only adulterous intercourse. In Nabors v. Keaton, 216 Tenn. (20 McCanless) 637, 393 S.W.2d 382 (1965), the court held the action was one of alienation of affection and the three-year statute of limitations applied where plaintiff's complaint alleged grounds for criminal conversation as well as alienation of affections.

We conclude plaintiff's cause of action was not time barred by the one-year statute of limitations in Tenn.Code Ann. Sec. 28-3-104 (1980) for criminal conversation actions.

Defendant further argues that plaintiff's cause of action falls outside the three-year statute of limitations for alienation of affection cases because he filed his case in March of 1987, more than three years after the cause of action accrued. According to Stone v. Hinds, 541 S.W.2d 598, 599 (Tenn.Ct.App.1976), the phrase "from the accruing of...