Overstreet v. Merlos
| Decision Date | 07 November 1990 |
| Docket Number | No. 07-CA-59633,07-CA-59633 |
| Citation | 570 So.2d 1196 |
| Parties | Shawn OVERSTREET v. Dr. Ricardo MERLOS. |
| Court | Mississippi Supreme Court |
George S. Shaddock, Pascagoula, for appellant.
James H. Heidelberg, Bryant Colingo Williams & Clark, Pascagoula, Scherry J. LeSieur, Bryant Colingo Firm, Gulfport, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.
Shawn Overstreet filed his complaint in the Circuit Court of Jackson County, June 16, 1986, against Dr. Ricardo Merlos for alienating the affections of his wife. He alleged that criminal seduction and fornication of his wife, Darlene Overstreet, by Dr. Merlos, was responsible for their separation and divorce. Damages were alleged in the amount of $500,000.00.
Overstreet had previously filed for divorce against his wife, August 8, 1985, charging her with adultery pursuant to Miss.Code Ann., Sec. 93-5-1(2) (Supp.1985); alternatively he asserted habitual cruel and inhuman treatment. Darlene Overstreet filed a counter suit for divorce on November 4, 1985, asserting her right to divorce for habitual cruel and inhuman treatment. The Chancery Court of Jackson County granted Darlene Overstreet the divorce, December 11, 1985, on her counter suit pursuant to Miss.Code Ann. Sec. 93-5-1 (Supp.1985). The original divorce was upheld by order February 19, 1986.
On May 2, 1988, Dr. Merlos filed a motion to dismiss Overstreet's alienation of affection suit pursuant to Rule 12(b)(6) M.R.C.P. He claimed that the divorce of the parties extinguished Overstreet's right to file any action wherein the cause of action accrued only by virtue of marriage.
The circuit court granted Dr. Merlos' motion to dismiss for failure to state a claim, after hearing arguments and receiving documentary evidence on May 6, 1988. The basis of the court's reasoning was not stated for the record.
Overstreet herein appeals the court's dismissing his claim under Rule 12(b)(6) M.R.C.P., in that his alienation of affection cause of action accrued prior to, and was the cause of the parties' divorce. This is the only statement of issue submitted on appeal.
Upon a motion for dismissal pursuant to Rule 12(b)(6) M.R.C.P., failure to state a claim upon which relief can be granted, the pleaded allegations of the complaint must be taken as true and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Marx v. Truck Renting & Leasing Assoc., 520 So.2d 1333 (Miss.1987). The circuit court, applying the above standard, found that Overstreet's cause of action fell within the parameters of the rule and dismissed the alienation claim against Dr. Merlos.
Dr. Merlos argues that the circuit court did not err in dismissing the claim because of the lack of a marital relationship, an essential element in an alienation of affection action, and because the common law action of alienation of affection should be abolished. Overstreet's complaint on appeal is based on the fact that the cause of action accrued prior to final separation and his contention that his wife's obtaining a divorce has no effect and does not estop him from bringing his action for alienation of affection against a third party.
The bonds of matrimony between Overstreet and his wife were dissolved by the chancellor on December 11, 1985. Subsequently, the alienation complaint against Dr. Merlos was filed, June 16, 1986.
It is not known what time frame Overstreet is alleging that Dr. Merlos "alienated" his wife's "affection." It seems clear enough, however, that the complaint supports the alienation which was prior to and the cause of the parties' divorce.
Dr. Merlos contends the status of the divorce bars alienation claims. Viable claims of alienation of affection are, however ...
To continue reading
Request your trial
-
Smith v. Malouf
...a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990). ¶ 11. "A motion to dismiss under MRCP 12(b)(6) tests the legal sufficiency of the complaint.... [T]o grant this motio......
-
Donald v. Amoco Production Co., 97-CA-01178-SCT.
...to prove any set of facts in support of his claim. Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss.1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990). LEGAL I. THE LOWER COURT ERRED WHEN IT DISMISSED THE AMENDED COMPLAINT BECAUSE A CAUSE OF ACTION DOES NOT ACCRUE UNTIL A......
-
City of Belmont v. Miss. State Tax Comm'n
...will be unable to prove any set of facts in support of his claim. Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep't of Corrections, 522 So.2d 219, 220 (Miss.1988); Lester Eng'g Co., 504 So.2d at 1187; Stanton ......
-
McCutchen v. McCutchen
...Id. This ruling on accrual of the claim is supported by other jurisdictions which have considered the issue. Overstreet v. Merlos, 570 So.2d 1196, 1198 (Miss.Sup.Ct.1990) ("The claim accrues when the alienation or loss of affection is finally accomplished.") (citation omitted); Dobrient v. ......
-
§ 8.01 Personal Injury Claims
...959 So.2d 1012 (Miss. 2007); Bland v. Hill, 735 So.2d 414 (Miss. 1999); Kirk v. Koch, 607 So.2d 1220 (Miss. 1992); Overstreet v. Merios, 570 So.2d 1196 (Miss. 1990). North Carolina: Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1984); Horner v. Byrnett, 132 N.C. App. 323, 511 S.E.2d 342 (......