Stewart v. Wisinger

Decision Date03 July 2019
Docket NumberCAUSE ACTION NO. 5:17-CV-148-DCB-MTP
PartiesCYNTHIA R. STEWART PLAINTIFF v. MELISSA ANN "MISSY" WISINGER DEFENDANT v. LAWRENCE STEWART THIRD-PARTY DEFENDANT
CourtU.S. District Court — Southern District of Mississippi
ORDER

Before the Court is Defendant Melissa Ann Wisinger ("Missy")'s Motion for Summary Judgment (Doc. 30); Plaintiff Cynthia Stewart ("Cynthia")'s Motion for Summary Judgment (Doc. 34); and Third-Party Defendant Lawrence Stewart ("Dr. Stewart")'s Motion for Summary Judgment (Doc. 36). For the reasons discussed below, these motions for summary judgment (Docs. 30, 34, and 36) are DENIED.

Background

This is an alienation of affection case. Cynthia originally brought this case against Missy, alleging several claims arising out of the extramarital affair between Missy and Cynthia's husband, Dr. Stewart. Since then, each party has moved for summary judgment, arguing that different parties cannot prove one or more elements of their claims under Mississippi law.1

Until December 2015, Dr. Stewart had an Otolaryngology a/k/a Ear, Nose, and Throat practice in McComb, Mississippi. Doc. 1, p. 2. In early 2014, Missy was a patient of Dr. Stewart's business partner and encountered Dr. Stewart. Doc. 36, p. 1. Dr. Stewart also began treating Missy and her children. Id. In Spring 2014, Missy and Dr. Stewart engaged in an extramarital2 relationship. Doc. 1, p. 2; Doc. 31, p. 2; Doc. 36, p. 1.

Cynthia and Dr. Stewart allege that Missy confessed the affair to her husband and that either Missy or her husband contacted state and federal law enforcement officials as well as the Mississippi Board of Medical Licensure ("the Board") to report Dr. Stewart's affair with his patient. Doc. 1, p. 2; Doc. 36, p. 1. Missy became a confidential informant aiding the United States Drug Enforcement Administration ("DEA") in an investigation of Dr. Stewart. Doc. 1, p. 2; Doc. 31, p. 2; Doc. 36, p. 2. Dr. Stewart was arrested, pledguilty to a single felony charge, and was sentenced by the United States District Court in September 2016.

The Board allowed Dr. Stewart to maintain his medical license with certain conditions, including his participation in programs for physicians who have engaged in improper activity while practicing medicine. Doc. 37, p. 2. Dr. Stewart was terminated from his medical practice by his business partner. Id. Dr. Stewart and Cynthia allege that Dr. Stewart's license conditions and felony conviction have prevented Dr. Stewart from practicing medicine. Doc. 37, p. 2; Doc. 1, p. 3. They contend that this resulted in financial consequences, which "caused them to lose their home in McComb, Pike County, Mississippi, and directly resulted in [Cynthia] having to move to the State of Florida to reside with and/or near relatives." Doc. 1, p. 3; Doc. 37; p. 2. They also allege that Missy and/or her husband "further provided information to private individuals, including but not limited to Bryan Harbour, in Pike and Lincoln Counties, Mississippi, who then disseminated that information to the general public." Doc. 34, p. 2; Doc. 36, p. 2.

Cynthia sued Missy, claiming negligent infliction of emotional distress; negligence and gross negligence; and alienation of affection. See Doc. 1, pp. 4-6. Cynthia seeks damages and injunctive relief to prohibit Missy from contacting Dr.Stewart. Doc. 1, p. 6. Missy responded with counterclaims, claiming malicious prosecution and negligent infliction of emotional distress against Cynthia. See Doc. 5, pp. 7-8. Missy added third-party defendant Dr. Stewart to this cause, demanding relief for intentional and negligent infliction of emotional distress; and negligence and gross negligence. Doc. 5, p. 10. Each party has moved for summary judgment.

I

Summary judgment is proper if a party shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). If the movant shows the absence of a disputed material fact, the non-movant "must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017).

The Court views facts and draws reasonable inferences in the non-movant's favor. Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018). The Court neither assesses credibility nor weighs evidence at the summary-judgment stage. Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012).

II

Missy moves for summary judgment on Cynthia's alienation of affection claim. See Doc. 31.

An alienation of affection claim requires a finding of the following elements: (1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss. Hancock v. Watson, 962 So. 2d 627, 630 (Miss. Ct. App. 2007); Fitch v. Valentine, 959 So. 2d 1012, 1025 (Miss. 2007). Alienation of affection is a recognized cause of action in Mississippi, the purpose of which is to protect the marriage relationship and provide a remedy for intentional conduct that causes a loss of consortium. Fitch v. Valentine, 959 So. 2d 1012, 1020 (Miss. 2007).

The Mississippi Supreme Court held, "where a husband is wrongfully deprived of his rights to the 'services and companionship and consortium of his wife,' he has a cause of action 'against one who has interfered with his domestic relations.'" Camp v. Roberts, 462 So. 2d 726, 727 (Miss. 1985)(citing Walter v. Wilson, 228 So. 2d 597, 598 (Miss. 1969)). Regarding loss of consortium, the Mississippi Supreme Court states that

The interest sought to be protected is personal to the [spouse] and arises out of the marriage relation. [A spouse] is entitled to society, companionship, love, affection, aid, services, support, sexual relations and the comfort of [his/her spouse] as special rights andduties growing out of the marriage covenant. To these may be added the right to live together in the same house, to eat at the same table, and to participate together in the activities, duties and responsibilities necessary to make a home. All of these are included in the broad term, "conjugal rights." The loss of consortium is the loss of any or all of these rights.

Kirk v. Koch, 607 So. 2d 1220, 1224 (Miss. 1992)(citing Tribble v. Gregory, 288 So. 2d 13, 16 (Miss. 1974)).

Missy contends that she is entitled to summary judgment because Cynthia cannot prove that she suffered a loss as a direct result of Missy's conduct. Doc. 31, p. 5. In support, Missy points to Cynthia's complaint, stating that Dr. Stewart and Cynthia are still married. Doc. 31, p. 5. Missy alleges "it was Mrs. Stewart's choice to abandon her husband and move to Florida. . . . Dr. Stewart alone is responsible for any detrimental change in the marriage relationship or financial hardships." Doc. 31, p. 5.

Missy also argues that even if Dr. Stewart did abandon the marriage, Missy's conduct is not the proximate cause of such abandonment: "the abandonment occurred long before [Missy] came into the picture. If Dr. Stewart was plying other females with prescription drugs in order to seduce them, then the marriage between Plaintiff and Dr. Stewart was already unstable." Doc. 31, p. 5.

Cynthia rejoins that genuine issues of material fact exist in relation to all the elements necessary to prove her claim of alienation of affection. Doc. 43, p. 2. Cynthia cites Kirk v. Koch, 607 So. 2d at 1224, as support for her contention that a divorce is not required for the tort of alienation of affection to ripen. Cynthia directs the Court's attention to one case where the plaintiff's claim of alienation of affection accrued when the spouse moved out of the marital home, Carr v. Carr, 784 So. 2d 227, 230 (Miss. Ct. App. 2000)(explaining that "A claim of alienation of affection accrues when the alienation or loss of affection is finally accomplished."). Cynthia cites another case where the plaintiff's claim accrued the last time the plaintiff's spouse participated in the affair (Fulkerson v. Odom, 53 So. 3d 849, 852 (Miss. Ct. App. 2011)(discussing how the claim accrues when the affections of the spouse involved in the extramarital relationship are alienated because the affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action occurred). Dr. Stewart states that he and his wife formally separated as a direct result of his affair with Missy:

As a direct result of the affair with Missy Wisinger, I have lost my relationship with my wife. I had made mistakes in our marriage before Missy Wisinger, but my wife had forgiven me for those mistakes. Before Missy . . . my wife and I were leading a productive married life.

Doc. 44, p. 3.

At this stage, the Court is unable to determine whether Dr. Stewart's affections were alienated and therefore is unable to resolve whether the loss of consortium element is met. To the extent that Missy attempts to prove Cynthia did not experience a loss of consortium or that Missy's conduct did not cause such a loss, the Court does not assess the credibility of the parties' assertions or evidence. Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). As to Cynthia's claims, Missy has not shown that there is no genuine dispute as to any material fact and that she is entitled to judgment as a matter of law.

III

Missy filed counterclaims against Cynthia, claiming malicious prosecution and negligent infliction of emotional distress. See Doc. 5, pp. 7-8. Missy added third-party defendant Dr. Stewart to this cause, demanding relief for intentional and negligent infliction of emotional distress; and negligence and gross negligence. Doc. 5, p. 10.

A

Cynthia moves for summary judgment on Missy's claims of malicious prosecution and negligent infliction of emotional distress. See Doc. 34.

To maintain a suit for malicious prosecution, Missy must prove the following elements by a preponderance of the evidence: (1) the institution or continuation of...

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