Mabus v. St. James Episcopal Church

• Decision Date: 16 April 2009
• Docket Number: No. 2006-CA-02052-SCT.,2006-CA-02052-SCT.
• Citation: 13 So.3d 260
• Parties: Julie MABUS v. ST. JAMES EPISCOPAL CHURCH, Episcopal Diocese of Mississippi, Inc., and Jerry McBride.
• Court: Mississippi Supreme Court

13 So.3d 260

Julie MABUS v. ST. JAMES EPISCOPAL CHURCH, Episcopal Diocese of Mississippi, Inc., and Jerry McBride.

No. 2006-CA-02052-SCT.

Supreme Court of Mississippi.

April 16, 2009.

Rehearing Denied August 6, 2009.

Felecia Perkins, attorney for appellant.

Glenn Gates Taylor, D. James Blackwood, Jr., Karen L. Gunn, Christy M. Sparks, Ridgeland, Robert A. Malouf, attorneys for appellees.

Before WALLER, C.J., DICKINSON and KITCHENS, JJ.

WALLER, Chief Justice, for the Court.

¶ 1. This case is on appeal for a second time before this Court. Julie Mabus filed suit in the First Judicial District of Hinds County Circuit Court against St. James Episcopal Church, Protestant Episcopal Church in the Diocese of Mississippi, and Jerry McBride (a former priest at St. James). She asserted seven causes of action against the defendants based upon McBride's participation in the surreptitious tape recording of a conversation among Julie, her then-husband, Ray Mabus, and McBride. The trial court granted summary judgment in favor of the defendants on all counts, with the exception of the fraudulent-concealment claim against McBride individually. In Mabus v. St. James Episcopal Church, 884 So.2d 747 (2004) (hereinafter Mabus I), we affirmed the trial court and remanded the case for disposition of the fraudulent-concealment claim against McBride. Mabus I, 884 So.2d at 765. On remand, the lower court granted summary judgment in favor of McBride on the fraudulent-concealment claim, and denied Julie's motion for relief from judgment, which sought to revive her claim for breach of fiduciary duty. We affirm, but on different grounds from those relied on by the trial court. See Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 843 (Miss.2003).

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts of this case are the same as those set forth in Mabus I:

The cause of action arises from McBride's participation in the tape recording of his meeting with Ray and Julie on January 7, 1998. At the time of the meeting, Ray and Julie were married, and McBride was the pastor at St. James Episcopal Church in Jackson, Mississippi where the Mabuses attended. Julie was an active, lifelong member of St. James. McBride officiated at the Mabuses' wedding and baptized both of their children. In addition to serving as their pastor, McBride was a close personal friend of both Ray and Julie. Ray invited McBride to be present when he confronted Julie with his knowledge of her purported infidelity several days prior to the meeting, and Ray told McBride that he intended to record the conversation on the advice of his divorce attorney. Julie's sister was also invited to attend the meeting, but she did not attend because her airline flight into Jackson was canceled due to inclement weather.

The meeting took place in the Mabuses' home. The trial court found that "the purpose of the confrontation and surreptitious recording was to obtain evidence for Ray Mabus to use as leverage in attempting to get Julie to agree to a no-fault divorce." Julie did not know that Ray was recording the meeting[¹] nor was she aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he "wanted to talk to her about something important with McBride present." Ray also testified that he believed McBride's "participation could possibly help save the marriage." However, by way of affidavit, Ray stated that "this meeting was not in any way a `counseling session.'" What is clear from the transcript of the meeting is the fact that Ray presented his wife with three options: save the marriage, no-fault divorce, or "we go to war" which would include an alienation of affection suit against her alleged paramour. The first option was instantly dismissed by Julie, and it was readily discernible that custody of the children would be a major point of disagreement. Julie expressed confusion as to why McBride was present. McBride responded at times that he was there for Ray and at other times for both of them. Julie was combative and used profanity during the course of this confrontation and likewise begged and pleaded for custody of her children. At one point, McBride sent Ray out of the room. With Julie still upset, McBride assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon afterwards, McBride left the home. Julie asserts that, after leaving the Mabus household, McBride told several other people of the conversation regarding Julie's alleged infidelity.

Divorce proceedings ensued between the Mabuses. Although the transcript was not introduced as evidence, Ray's expert witness used the transcript in reaching his determination that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody.

Mabus I, 884 So.2d at 751-52 (footnote omitted).

¶ 3. Julie filed suit against McBride, the church, and the diocese, alleging breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, negligent infliction of emotional distress, negligent retention/supervision, and clergy malpractice. The trial court granted summary judgment for defendants on all counts, with the exception of the fraudulent-concealment claim against McBride. This Court affirmed the trial court and remanded the case for disposition of the fraudulent-concealment claim against McBride, individually. Mabus I, 884 So.2d at 765.

¶ 4. Following Mabus I, the parties conducted further discovery on the issue of fraudulent concealment. McBride then filed a motion for summary judgment on July 28, 2006. Days later, on July 31, 2006, Julie filed a motion for relief from the judgment, or in the alternative, motion to dismiss and for other relief. In her motion, Julie requested that the trial court set aside its 2002 grant of summary judgment on her breach-of-fiduciary-duty claim, and enter judgment in her favor. She argued that the trial court's prior ruling was based on false affidavits submitted by Ray and McBride, as well as a fabricated transcript of the meeting.

¶ 5. On October 9, 2006, the trial court granted summary judgment in favor of McBride. In a separate opinion and order that same day, the trial court denied Julie's motion for relief from judgment. Julie now appeals to this Court raising the following assignments of error: (1) whether the trial court erred in granting summary judgment for McBride, and (2) whether the trial court erred in denying Julie's motion for relief from judgment.

DISCUSSION

I. Whether the trial court erred in granting summary judgment for McBride.

¶ 6. This Court conducts a de novo review of a trial court's decision on a motion for summary judgment. Smith v. Gilmore Mem'l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007) (quoting Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003)). The moving party is granted judgment "`if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Smith, 952 So.2d at 180 (quoting Miss. R. Civ. P. 56(c)). Although summary judgment, in whole or in part, must be granted with great caution, it "is mandated where the respondent has failed `to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Smith, 952 So.2d at 180 (quoting Brown, 444 So.2d at 363; Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996)).

¶ 7. In granting summary judgment for McBride, the trial court found that Julie had essentially "talked herself right out of court." Prior to Mabus I, the trial court had denied McBride's motion for summary judgment on the fraudulent-concealment claim. At that time, Julie had asserted in an affidavit that had she known she was being taped, she would have responded differently or refused to participate in the conversation. But on remand from Mabus I, Julie gave a deposition and submitted an affidavit in which she stated that she suspected Ray was taping her.² Significantly Julie confirmed that her suspicions arose shortly into the meeting. The trial court found that these concessions showed that Julie was not prevented from discovering the tape recording; and therefore, she could not establish one of the necessary elements for a cause of action based on fraudulent concealment.

¶ 8. Julie claims that the trial court erred in granting summary judgment for McBride, and that it applied an incorrect legal test to reach its conclusion. She submits that the trial court failed to apply the proper elements of fraudulent concealment as set forth in Mabus I.

¶ 9. In Mabus I, this Court explained fraudulent concealment as follows:

... [T]he plaintiff must prove (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Furthermore, under Mississippi law, these elements must be shown by clear and convincing evidence.... [I]n order for there to be liability for nondisclosure, silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party. An affirmative act of concealment is necessary.

Mabus I, 884 So.2d at 762 (citations omitted). The trial court, however, relied on Phillips v. New England Mutual Life Insurance Co., 36 F.Supp.2d 345, 348 (S.D.Miss.1998) (quoting Davidson v....