Children's Medical Group, P. A. v. Robert Phillips ( 2005 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-IA-00593-SCT
CHILDREN’S MEDICAL GROUP, P. A.
v.
ROBERT PHILLIPS, INDIVIDUALLY AND AS NEXT
FRIEND AND NATURAL GUARDIAN OF TANNER
WADE PHILLIPS AND GRANT RUSSELL PHILLIPS,
MINORS
DATE OF JUDGMENT: 03/08/2005
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN L. LOW
MILDRED M. MORRIS
ATTORNEYS FOR APPELLEE: CHUCK McRAE
WILLIAM B. KIRKSEY
MINOR F. BUCHANAN
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 10/26/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. A husband claims in a lawsuit that the medical clinic employing his wife recklessly
allowed her and a coworker to engage in an extramarital affair in the workplace and,
therefore, is liable to him for alienation of affections. The husband alternatively claims the
employer is vicariously liable for its employee’s actions. The question presented is whether
either claim can survive a motion to dismiss under Mississippi Rule of Civil Procedure
12(b)(6).
BACKGROUND FACTS AND PROCEEDINGS
¶2. Robert and Julie Phillips divorced in September 2004. Prior to the divorce, Robert
alleges that he discovered Julie was having an affair with Dr. Erwyn E. Freeman, Jr., who
was Julie’s coworker at Children’s Medical Group, P.A. (“CMG”). Robert sued Dr.
Freeman 1 and CMG,2 claiming both were liable for alienating Julie’s affections for him.3
According to Robert’s complaint, CMG “knew of and negligently and recklessly allowed the
illicit relationship between the Defendant, Erwyn E. Freeman, Jr., and its employee, Julie
Rawson Phillips, to be carried on while employed with said Defendant at its office and
elsewhere.”
¶3. CMG filed a Rule 12(b)(6) motion to dismiss claiming Robert’s complaint failed to
state a claim upon which relief could be granted. Specifically, CMG argued (1) the tort of
alienation of affections requires intentional acts of misconduct, and Robert failed to allege
any intentional conduct by CMG; (2) CMG owed no duty to Robert to prevent Dr. Freeman
from pursuing a consensual affair with another employee; and (3) CMG was not vicariously
liable for its employees’ consensual sexual relationships, as those activities were beyond the
employees’ course and scope of employment.
1
Robert’s claims against Dr. Freeman are not at issue in this appeal.
2
Robert also sued both defendants as next friend of his two minor children.
3
In Bland v. Hill, 735 So. 2d 414, 418 (Miss. 1999), we declined to abolish the common law
tort of alienation of affections. However, then Justice Chuck McRae, now one of Robert’s counsel,
passionately argued for the elimination of this cause of action in his opinion in Bland. Justice
McRae opined, “[t]he alienation suit is an anachronism which we would do well to rid ourselves of.
A wealth of experience has demonstrated that these lawsuits do much more harm to society than
good. Our courts should not be in the business of policing broken hearts.” Id. at 427 (McRae, J.,
concurring in part and dissenting in part) (footnote omitted).
2
¶4. The trial court denied CMG’s motion to dismiss. CMG then sought an interlocutory
appeal, which we granted. See M.R.A.P. 5.
DISCUSSION
¶5. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim. Stuckey v.
Provident Bank, 912 So. 2d 859, 865 (Miss. 2005). Therefore, we review de novo the denial
of a motion to dismiss for failure to state a claim. Webb v. DeSoto County, 843 So. 2d 682,
684 (Miss. 2003). In order to reverse, “it must be such that no set of facts would entitle the
opposing party to relief.” Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss.
2006); see also M.R.C.P. 12(b)(6) cmt. (to grant a Rule 12(b)(6) motion to dismiss, “there
must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that
could be proved in support of the claim”) (emphasis added).
I. Whether the trial court erred in denying CMG’s motion to dismiss
for failure to state a claim based on CMG’s own conduct.
¶6. According to Robert’s complaint, CMG committed the common law tort of alienation
of affections by “kn[owing] of and negligently and recklessly allow[ing] the illicit
relationship between the Defendant, Erwyn E. Freeman, Jr., and its employee, Julie Rawson
Phillips, to be carried on while employed with said Defendant at its office and elsewhere.”
In order to reverse the trial court’s denial of CMG’s Rule 12(b)(6) motion to dismiss, we
must be able to say, with certainty, that Robert cannot prove any set of facts to support his
claim. See Little v. Miss. Dep’t of Human Servs., 835 So. 2d 9, 11 (Miss. 2002); M.R.C.P.
12(b)(6) cmt.
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¶7. There is a vast difference between the pleading burden necessary to survive a Rule
12(b)(6) motion to dismiss and the evidentiary requirements necessary to survive a motion
for summary judgment under Mississippi Rule of Civil Procedure 56. A motion to dismiss
under Rule 12(b)(6), as opposed to other devices in civil law, contemplates a high degree of
speculation by the reviewing court. In Stuckey, we explained the differences between Rule
12 and Rule 56:
While the two rules provide for dismissal of actions, their bases are completely
different. Accordingly, a Rule 12(b)(6) motion tests legal sufficiency, and in
applying this rule ‘a motion to dismiss should not be granted unless it appears
beyond a reasonable doubt that the plaintiff will be unable to prove any set of
facts in support of the claim.’ Missala Marine Services, Inc. v. Odom, 861 So.
2d 290, 294 (Miss. 2003). Quite differently, Rule 56 tests the notion of well-
pled facts and requires a party to present probative evidence demonstrating
triable issues of fact.
Stuckey, 912 So. 2d at 865-66. Our inquiry on a Rule 12(b)(6) motion to dismiss is not
limited to the specific allegations in Robert’s complaint, which we must accept as true.
Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 966 (Miss. 2003). We are charged
to consider only whether any set of facts could support Robert’s action for alienation of
affections against CMG. Cook v. Brown, 909 So. 2d 1075, 1078 (Miss. 2005).
¶8. According to this Court’s opinion in Walter v. Wilson, 228 So. 2d 597, 598 (Miss.
1969), overruled in part on other grounds by Saunders v. Alford, 607 So. 2d 1214, 1219
(Miss. 1992), “[u]nder the common law a husband is entitled to the services and
companionship and consortium of his wife. When he is wrongfully deprived of these rights,
he is entitled to a cause of action against one who has interfered with his domestic relations.”
The required elements of an alienation of affections lawsuit include (1) wrongful conduct of
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the defendant, (2) loss of affection or consortium, and (3) a causal connection between the
conduct and the loss. Bland v Hill, 735 So. 2d 414, 417 (Miss. 1999).
¶9. The “wrongful” conduct necessary to maintain an action for alienation of affections
is the direct and intentional interference with the marriage relationship by the defendant. In
Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932), the Court held that:
it must appear . . . that there had been a direct interference on the defendant's
part, sufficient to satisfy the jury that the alienation was caused by the
defendant, and the burden of proof is on the plaintiff to show such
interference. . . . But to maintain this action it must be established that the
husband was induced to abandon the wife by some active interference on the
part of the defendant.
(internal citations omitted; emphasis added). See also Kirk v. Koch, 607 So. 2d 1220, 1223
(Miss. 1992) (defendant “directly and intentionally interfered with” plaintiff’s marriage,
inducing the alienation of affections); Martin v. Ill. Cent. R.R., 246 Miss. 102, 110-11, 149
So. 2d 344, 348 (1963) (same).
¶10. It is true that Robert fails to specify CMG’s conduct that directly and intentionally
interfered with his marriage. However, under our rules, Robert is not required to plead the
specific wrongful conduct. At the pleading stage, he is required only to place CMG on
reasonable notice of the claims against it and to demonstrate that he has alleged a recognized
cause of action upon which, under some set of facts, he might prevail. Consequently, in order
to succeed in having this case dismissed pursuant to Rule 12(b)(6), CMG must demonstrate
that Robert cannot prevail under any set of facts. This is the analysis we must apply. See
Ralph Walker, Inc., 926 So. 2d at 893; Cook, 909 So. 2d at 1078; Poindexter, 838 So. 2d
at 966; Little, 835 So. 2d at 11.
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¶11. We are unable to say, as a matter of law, that there are no possible facts which could
result in CMG’s liability for alienation of affections. Accordingly, we affirm the trial court’s
denial of CMG’s motion to dismiss for failure to state a claim insofar as Robert alleges CMG
committed the tort of alienation of affections based on its own actions.
II. Whether the trial court erred in denying CMG’s motion to dismiss
for failure to state a claim based on the theory of vicarious liability
for CMG’s employee’s actions.
¶12. In its motion to dismiss, CMG argues that Robert cannot be granted relief against it
based on the theory of vicarious liability. The trial court found that a jury should determine
whether Dr. Freeman’s actions were within the course and scope of his employment, such
that Robert could maintain a claim for vicarious liability against CMG. Although these
determinations can be highly fact sensitive, some actions are so clearly beyond an employee’s
course and scope of employment that they cannot form the basis for a claim of vicarious
liability, as a matter of law.
¶13. “Under the doctrine of respondeat superior, the master is liable for the acts of his
servant which are done in the course of his employment and in furtherance of the master’s
business.” Sandifer Oil Co. v. Dew, 220 Miss. 609, 630, 71 So. 2d 752, 758 (1954). Under
Section 228 of the Restatement (Second) of Agency:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve the
master, and
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(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the
master.
(2) Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized time
or space limits, or too little actuated by a purpose to serve the master.
Restatement (Second) of Agency § 228 (1958); see also Commercial Bank v. Hearn, 923
So. 2d 202, 208 (Miss. 2006). If an employee “deviates or departs from his work to
accomplish some purpose of his own not connected with his employment – goes on a ‘frolic
of his own’ – the relation of master and servant is thereby temporarily suspended,” and the
employer is not vicariously liable. Seedkem S., Inc. v. Lee, 391 So. 2d 990, 995 (Miss.
1980) (citations omitted). See also Mabus v. St. James Episcopal Church, 884 So. 2d 747,
756 (Miss. 2004) (as a matter of law, church not vicariously liable for priest’s surreptitious
taping of counseling session with parishioner); Gulledge v. Shaw, 880 So. 2d 288, 295 (Miss.
2004) (as a matter of law, bank not vicariously liable for employee’s knowing notarization
of forged signature); Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159 (Miss. 2002)
(as a matter of law, theater not vicariously liable for assault on movie patron).
¶14. In Cockrell v. Pearl River Valley Water Supply District, 865 So. 2d 357, 362 (Miss.
2004), this Court held that a law enforcement officer was outside the scope of his
employment when he made romantic advances toward an arrestee. In L.T. v. City of
Jackson, 145 F. Supp. 2d 750, 757 (S.D. Miss. 2000), the district court found that a security
guard who stopped the female plaintiff in his capacity as a city police officer and had sex
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with the woman in exchange for letting her go with a warning was acting outside the course
and scope of his employment.
¶15. Other jurisdictions have specifically found that an employee’s affair with a coworker
is beyond the course and scope of employment. In Jackson v. Righter, 891 P.2d 1387, 1390
(Utah 1995), the Utah Supreme Court considered a situation in which a jilted husband sued
the employer of his wife’s paramour. The court found that the employee’s romantic advances
were “so clearly outside the scope of his employment that reasonable minds cannot differ.”
Id. at 1391. See also Mercier v. Daniels, 533 S.E.2d 877, 881 (N.C. Ct. App. 2000) (no
vicarious liability where workplace affair in no way furthered the business of the employer).
¶16. The question we must consider is whether Robert can prove any set of facts showing
Dr. Freeman’s alleged consensual sexual relationship with Robert’s wife was within the
course and scope of his employment with CMG. We find no such showing can be made.
The comment to Section 228 of the Restatement (Second) of Agency explains that “not all
physical acts of the kind authorized performed within the time and at the place of service are
within the scope of employment, since only those which the servant does in some part for the
purpose of giving service to the master are included.” Restatement (Second) of Agency §
228 cmt. a (emphasis added). It defies reason to argue that engaging in an affair at work or
during working hours in any way furthered the business interests of CMG or enhanced the
medical care of CMG’s pediatric patients.
¶17. The trial court erred as a matter of law in finding that a claim was stated as to whether
Dr. Freeman, in having an alleged consensual affair with a coworker, was acting within the
8
course and scope of his employment with CMG. Robert can prove no set of facts that would
entitle him to recover against CMG under a theory of vicarious liability. Therefore, we find
the trial court should have granted CMG’s Rule 12(b)(6) motion to dismiss this theory.
CONCLUSION
¶18. We affirm the trial court’s denial of CMG’s motion to dismiss with respect to Robert’s
claim that CMG committed the tort of alienation of affections. Robert is entitled to the
opportunity to conduct discovery and present facts that demonstrate when and how CMG
committed the tort. Whether Robert demonstrates that triable issues of material fact exist for
a jury’s consideration is a question for another day.
¶19. We reverse the trial court’s denial of CMG’s motion to dismiss on the theory of
vicarious liability. This case is remanded to the trial court for further proceedings consistent
with this opinion.
¶20. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
DIAZ, EASLEY AND RANDOLPH, JJ., AND BARRY, S.J., CONCUR.
PARKER S.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION. SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND
GRAVES, JJ., NOT PARTICIPATING.
EUGENE PARKER, JR., SPECIAL JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:
¶21. I concur with that part of the majority’s opinion designated Issue II and would reverse
the trial court upon the issue of vicarious liability. Aside from my belief that the antiquated
cause of action of alienation of affections should be abolished out right, I respectfully dissent
as to Issue I, “whether the trial court erred in denying CMG’s motion to dismiss for failure
9
to state a claim based on CMG’s own conduct,” and would reverse the trial court on this
issue. The reasons therefor are varied and multiple.
¶22. Historically, this Court has distinguished the requisite elements of the cause of action
between first-party participants (the paramours) versus third-party participants, such as a
parent of one of the parties or an employer. In the former case, direct interference by the
defendant is required. Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932). But in the latter
case, the Court has required a showing of malice. See Tucker v. Tucker, 74 Miss. 93, 19 So.
955 (1896). All Mississippi cases have required the familiar elements of this tort to coexist,
i.e., (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a
causal connection between the conduct and the loss. Bland v. Hill, 735 So. 2d 414, 417
(Miss. 1999).
¶23. In the present case, the complaint alleges that CMG “knew of and negligently and
recklessly allowed the illicit relationship . . . .” (Emphasis added). In my view, the plaintiff
has pleaded himself out of court, as respects CMG, as he asserts that CMG “allowed the
illicit relationship . . . .” To “allow” in its common usage, and as defined according to Mr.
Webster, means “to let do or happen: permit.” Webster’s II New College Dictionary 30
(Rev. ed. 2001). To “allow” is a passive omission (not an action at all), whereas all case law
requires an active intentional interference of the marital relationship. See Kirk v. Koch, 607
So. 2d 1220 (Miss. 1992); Gorman v. McMahon, 792 So. 2d 307 (Miss. Ct. App. 2001).
Where in the law is there a stated duty of an employer not to “allow” fornication or even
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adultery between co-employees? To what measure(s) or expense would the employer be
exposed not to “allow” this to occur on or off its premises?
¶24. In my humble view, the majority opinion unnecessarily expands the range of potential
defendants to this medieval cause of action, whose only excuse for existence is the antiquity
of its ancestry. I respectfully dissent.
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