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Lyon v. McGee

Court of Appeals of Mississippi

January 23, 2018

DAVID MICHAEL LYON JR. APPELLANT/CROSS-APPELLEE
v.
BILLY MCGEE APPELLEE/CROSS-APPELLANT

          DATE OF JUDGMENT: 03/01/2016

         FORREST COUNTY CIRCUIT COURT HON. L. BRELAND HILBURN, JUDGE

          ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE

          ATTORNEY FOR APPELLEE: PATRICK H. ZACHARY

          BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. David Michael Lyon (Lyon) sued Billy McGee in the Forrest County Circuit Court seeking damages for alienation of affection after Lyon and his former wife Emma Robin (Robin) divorced. Lyon claimed that McGee interfered with his marriage, causing Robin to abandon the marriage and have an adulterous relationship with McGee. Lyon discovered the relationship in October 2013 - after the Lyons had separated and Robin had filed for divorce, but before the divorce was final. Discovery ensued, and McGee admitted to having an affair with Robin commencing on October 4, 2013. McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee argued dismissal was proper because Lyon ultimately agreed to an irreconcilable-differences divorce, which was at odds with an alienation-of-affection claim. According to McGee, he could not have contributed to the end of the marriage under this form of divorce, as reconciliation of the Lyons was impossible. Further, McGee argued the defenses of issue preclusion and/or judicial or collateral estoppel barred relitigation of the grounds for divorce that an alienation-of-affection claim would create. Alternatively, McGee's motion said summary judgment was proper because there was no causal connection between McGee's conduct and any alleged loss by Lyon, because McGee's conduct with Robin occurred long after the Lyons' separation in July 2013. McGee claimed that he had no contact with Robin prior to this date.

         ¶2. The trial court granted McGee's motion for summary judgment, finding Lyon did not sufficiently respond to establish a genuine issue of material fact, i.e., that McGee was involved with Robin prior to their date of separation. Lyon filed a motion to reconsider, which was denied. Lyon timely appeals, and McGee cross-appeals.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶3. In April 2013, Robin initially asked Lyon for a divorce "out of the blue." Lyon was surprised, as he felt they "were living the American dream." On July 12, 2013, the Lyons decided to separate after a fourteen-year marriage that bore two children. On July 25, 2013, Robin filed for a divorce on the grounds of habitual cruel and inhuman treatment, or alternatively irreconcilable differences. On June 3, 2014, a Property Settlement and Child-Support Agreement, and judgment of divorce based on irreconcilable differences was entered in the Perry County Chancery Court.

         ¶4. On October 3, 2014, Lyon sued McGee for alienation of affection in the Forrest County Circuit Court, seeking one million dollars in actual damages. Lyon contended that McGee interfered with the Lyons' relationship and "destroyed the marriage and deprived [Lyon] of the affections of his former wife, " and "but for" the intentional actions of McGee, Lyon would still be married. He claimed to discover the relationship in October 2013, after the couple had separated, but before they were divorced. He made the discovery through cellular-telephone records and McGee's spouse, who had put a recording device in McGee's vehicle.

         ¶5. McGee answered Lyon's complaint, claiming that he and Robin had no relationship until "long after" the Lyons had separated and Robin had filed for divorce (July 12 and 25, 2013, respectively). As an affirmative defense, McGee stated there was thus no causal connection between any conduct by McGee and any loss claimed by Lyon. Further, McGee asserted there was no affection or consortium existing between the Lyons at the alleged date of his involvement with Robin. McGee also argued the claim was barred by issue preclusion and/or judicial estoppel because the divorce was based on irreconcilable differences and, therefore, McGee's conduct could not have ended the marriage.

         ¶6. On January 20, 2016, McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee again argued collateral and/or judicial estoppel and issue preclusion barred the claim. McGee also argued, almost as an afterthought, that the timing of McGee and Robin's affair occurred long after the Lyons' separation. Therefore, McGee reasoned that Lyon could not prove the causal-connection element of his claim - no conduct of McGee "caused the loss of affection or consortium" because the parties were already separated. McGee attached to his motion Lyon's complaint, his answer, the complaint for divorce, and the settlement agreement, but no sworn statements such as affidavits, depositions, or discovery materials. McGee's supporting brief focused on the estoppel arguments. Lyon filed a memorandum brief in opposition to the motion for summary judgment, only addressing McGee's judicial and collateral estoppel or issue preclusion arguments and, like McGee, did not address the causation/timing argument. Moreover, he did not attach any evidence to his memorandum brief. McGee filed a rebuttal memorandum brief, addressing both the estoppel and causation issues. He argued Lyon's claim was barred by his withdrawal of fault grounds and acceptance of an irreconcilable-differences divorce; thus, the causation element was not met. He attached a portion of Lyon's deposition wherein Lyon explained that Robin had agreed to his receiving sixty percent of the property division if he would agree to an irreconcilable-differences divorce instead of a divorce on the grounds of adultery.

         ¶7. In February 2016, a hearing was held on McGee's motion for summary judgment, which the circuit judge took under advisement. Also addressed were two motions in limine filed by McGee and Lyon.[1] McGee sought to exclude voice recordings of conversations that he had with Robin. The circuit judge granted the motion as the voice recordings were obtained in violation of statutory law, but ruled he would hear further argument at an appropriate time if the recordings became relevant. McGee also sought to exclude emails between his wife and Lyon about the voice recordings. The circuit judge found the emails would be prejudicial unless found relevant as to contact prior to October 2013. Further, McGee requested the court not mention "anything prior to October 2013, " because in Lyon's deposition he responded in the negative when asked whether he had any proof of intimate contact between his wife and McGee prior to that date. The circuit judge stated that the motion was granted unless there was specific relevant evidence presented. Lyon also filed a motion in limine to exclude any evidence of a relationship between him and a third party after October 2013. That motion was granted.

         ¶8. On March 1, 2016, the circuit judge entered an order granting summary judgment to McGee, focusing on the timing/causation argument. The circuit judge found Lyon did not establish that his wife and McGee had a relationship before July 12, 2013, the date the Lyons separated. The circuit judge pointed to Lyon's motion in limine, filed February 7, 2016, which the judge found only "partially responded" to McGee's motion for summary judgment. The judge explained that the motion in limine stated "that phone records obtained through depositions[2] clearly demonstrate a pattern of communication and behavior that support the existence of previous liaisons" between McGee and Robin. The circuit judge ruled that this response to the motion for summary judgment fell ...


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