OF JUDGMENT: 09/15/2014
COUNTY CIRCUIT COURT, HON. M. JAMES CHANEY JR.
ATTORNEYS FOR APPELLANT: CHUCK MCRAE GALE NELSON WALKER SETH
CLAYTON LITTLE CHRISTOPHER ANTHONY BAMBACH.
ATTORNEYS FOR APPELLEE: MICHAEL JAMES MALOUF JR. LYNEILLE
COUNTISS WILLIAMS WILLIAM EDWARD BALLARD JAMES MATTHEW
IRVING, P.J., FAIR AND WILSON, JJ.
John Teal and Marci Sklar Teal were married on December 26,
2005. The couple divorced on June 2, 2008, on the ground of
irreconcilable differences. After their divorce, Marci
learned that John had a romantic relationship with Elaine
Jones (Lainey) during their marriage. As a result, she filed
a complaint for alienation of affections against Lainey in
the Circuit Court of Warren County. At the close of trial,
the jury found in favor of Marci on her claim for alienation
of affections but awarded her no damages. Thereafter, Marci
filed a motion for a new trial, judgment notwithstanding the
verdict (JNOV), and additur, which the circuit court denied.
On appeal, Marci argues that the trial court erred by
instructing the jury that she had destroyed evidence and that
the jury should presume that the missing evidence was
unfavorable to her. She also challenges a series of
evidentiary rulings concerning post-separation and
post-divorce events and her subsequent bankruptcy. We find no
abuse of discretion in the trial court's decisions to
admit or exclude evidence, but we hold that the spoliation
instruction was erroneous and that a new trial is required.
Accordingly, we reverse and remand.
AND PROCEDURAL HISTORY
John met Marci in 2001. Marci was working as a bartender at
the Cypress Cove Marina in Venice, Louisiana, and John was
the captain of a charter fishing boat. They began dating and
eventually lived together. Marci had a son, Hunter, from a
previous marriage. Hunter was three years old when Marci and
John began dating.
In 2004, John, Marci, and Hunter moved to Texas for John to
captain Dan Murphy's fishing yacht. As the captain of
Murphy's yacht, John spent most of the year traveling to
various fishing tournaments in places such as Bermuda and the
Bahamas. As a result, John was home only three or four months
out of the year. John and Marci married on December 26, 2005.
After they married, John, Marci, and Hunter moved to Rolling
Fork, Mississippi, and John continued to captain Murphy's
yacht. In January 2007, John and Marci purchased the Onward
Store, a historic country store in Rolling Fork. Marci
operated the store, and John assisted when he was home.
In April 2006, John met Lainey at a fishing tournament in the
Bahamas. The next day, John, speaking in Italian, told Lainey
that he had fallen in love with her at first sight. Lainey
testified that John "chased" her as they continued
to see each other at fishing tournaments, while John
testified that Lainey pursued him. In any event, Lainey knew
that John was married, but she admitted that the two became
romantically involved in July 2006 and that their
relationship continued until 2009.
In mid-2007, Marci "felt something was off" in her
marriage and accused John of having an affair, but John
denied that he was having an affair and made her think that
she was "crazy" for even suggesting the idea. Marci
began seeing a psychiatrist in the latter part of 2007, at
least in part because of her concerns about her marriage.
On January 14, 2008, John was on a hunting trip with Lainey
and others when Marci called him because she needed to
discuss issues related to the Onward Store. The two argued,
and John told her that he did not love her and wanted a
divorce. John did not return home after the conversation.
John and Marci filed for an irreconcilable differences
divorce on or about April 1, 2008, and a final judgment of
divorce was entered on June 2, 2008. As part of their
property settlement agreement, John agreed to pay Marci $25,
000. Lainey ultimately provided John with $25, 000 so that he
could make the payment.
After John asked for a divorce, Marci began dating and
communicating with other men via Facebook, email, phone, and
text messages. Days before her divorce was final, Marci went
on her first date with Gene Barnett. Gene and Marci continued
to date after her divorce was final.
On May 27, 2008, Lainey purchased approximately 200 acres of
property near Edwards, Mississippi. Lainey and John referred
to the property as "Wildwood." Lainey purchased the
property "for John to be closer to Hunter and also as a
hurricane hiding hole for [her] and [her] friends and
family." According to Lainey, she and John first
discussed buying land together when John visited her in Kiln,
Mississippi, in early 2008. During the trip, Lainey told John
that she did not "need a piece of paper to be married,
" but John insisted that he would "make an honest
woman out of" her.
Beginning in September 2008, John and Marci reconciled for a
few months, although, unbeknownst to Marci, John was also
still in a relationship with Lainey. During their
reconciliation, Marci discovered that John had a romantic
relationship with Lainey while they were married. Marci
testified that in the spring of 2009, John left his email
account open on her computer at the Onward Store, and she
found emails that made clear that he had been having an
affair with Lainey. After she learned of the affair, Marci
ended her reconciliation with John. On June 9, 2010, Marci filed
a complaint against Lainey in circuit court for alienation of
On September 2, 2011, Marci filed for chapter 7 bankruptcy.
As part of her bankruptcy filings, Marci listed her complaint
against Lainey in her Statement of Financial Affairs, but she
did not list the claim as an asset in her Summary of
Schedules. As a result, the bankruptcy was administered as a
"no asset" case, and an order discharging
Marci's debts and closing her bankruptcy was entered on
December 21, 2011.
On September 19, 2012, the bankruptcy trustee filed a motion
to reopen Marci's bankruptcy to pursue the complaint as
an asset of her estate. The bankruptcy court subsequently
reopened the case and entered an order approving the
employment of Marci's attorney, Chuck McRae, as special
counsel for the trustee.
On August 22, 2012, Lainey's attorney sent Marci and her
attorney a letter regarding her obligation to preserve
electronically-stored evidence. On December 10, 2012, Lainey
requested that Marci "produce for inspection any and all
computers, in [Marci's] possession[, ] custody or
control, that [Marci] used to communicate electronically with
John . . . from the date of [their] marriage to the
present." At Marci's deposition on February 27,
2013, she testified that she regularly deleted emails from
John (and others) throughout the course of her marriage, so
she was no longer in possession of any emails that they
exchanged during their marriage. She also testified that she
had thrown away her personal laptop a year and a half earlier
because it was ruined after coffee was spilled on it.
Finally, Marci testified that the desktop computer that she
had used at work at the Onward Store was in storage. Her
former boyfriend, Gene Barnett, had rented a storage unit for
the store's equipment after the store closed.
On March 4, 2013, Lainey filed a motion to compel production
of Marci's computers. On April 2, 2013, the court held a
hearing on Lainey's motion, at which time the
parties' attorneys revealed that they had learned that
Barnett had sold the desktop computer at some point in 2012.
Lainey's counsel stated that he needed to inspect the
computer because it was his "understanding that as long
as the e-mail has been viewed on a particular computer screen
at some point in time, then there is a forensic software
program that you run on the computer and it is a high
probability that you can pull it off and get a copy of
it." At the conclusion of the hearing, the court ordered
Marci to produce all emails between her and John and any
computers in her possession or control or, alternatively,
provide a detailed explanation as to why the same could not
be produced. The court reserved ruling on Lainey's
request that the jury be instructed on spoliation at trial.
On April 17, 2013, Marci filed a memorandum with the court
explaining that Barnett took possession of equipment from the
Onward Store, including the desktop computer that she used,
after the store went out of business. Barnett placed the
computer and other equipment in a storage unit and advertised
it for sale on Craigslist, beginning on July 15, 2012. By the
end of July, Barnett had sold the computer for $300.
Marci's memorandum noted that the sale occurred before
Lainey's counsel requested access to the computer. The
memorandum also stated that Marci's attorney had
contacted Marci's email provider (MSN) in an attempt to
retrieve any emails between Marci and John, but MSN advised
that it retained deleted emails for only sixty days. On
November 20, 2013, the court entered an order in which it
continued to reserve a ruling on a jury instruction on
The case proceeded to a two-day trial in September 2014.
During the jury instruction conference, Lainey offered
proposed instruction 13-A on spoliation. The proposed
The Court instructs the jury that the Plaintiff has destroyed
evidence in this case. The Plaintiff has destroyed emails
between herself and John Teal. The Plaintiff has also
destroyed her computer while this lawsuit was pending.
Therefore, a presumption is now raised that the emails and
the computer contained evidence that would have been
unfavorable to the Plaintiff. This presumption of
unfavorability is not solely confined to the destroyed emails
and computer. You are free to draw a general negative
inference against the Plaintiff because of her act of
Marci objected to the instruction, arguing that there was no
evidence of spoliation. The court ruled that the jury should
be instructed on spoliation, but the court struck the final
two sentences of ...