Bristow v. Baskerville

Filing 97

ORDER granting 78 Motion Seeking Modification of the Order of the Court Dated December 6, 2010. Signed by Honorable David C. Bramlette, III on 4/12/2011 (nr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOYCE BRISTOW

PLAINTIFF

VERSUS

CIVIL ACTION NO: 5:09-cv-66-DCB-JMR

LEZLI BASKERVILLE

DEFENDANT
OPINION AND ORDER

This cause is before the Court on the Defendant Lezli
Baskerville’s Motion for Relief under Rule 60(b) of the Federal
Rules

of

Civil

Procedure

[docket

entry

no.

78],

seeking

modification of this Court’s December 6, 2010 Order [docket entry
no. 63] which denied Baskerville’s Motion for Summary Judgment.
Having

carefully

considered

said

Motion,

Responses

thereto,

applicable statutory and case law, and being otherwise fully
advised in the premises, the Court finds and orders as follows:
I.Facts and Procedural History
The Plaintiff, Joyce Bristow (“Mrs. Bristow”) filed this
action on November 5, 2008 against Baskerville for alienation of
affection, adultery, and negligent and intentional infliction of
emotional distress, arising out of Baskerville’s alleged adulterous
affair with Mrs. Bristow’s husband, Clinton Bristow.

Mr. and Mrs.

Bristow married (for the second time) in April of 1997.

Mrs.

Bristow filed for divorce on July 30, 1999 and an Illinois court
granted the divorce on December 12, 2001.

1

Mrs. Bristow first

became aware of Mr. Bristow’s relationship with Baskerville in
January 2001 when Mr. Bristow and Baskerville attended an event
together in Chicago called the Indigo Ball.

Mr. Bristow died in

2006 and Mrs. Bristow alleges that, in 2007, she first discovered
that Mr. Bristow had begun a relationship with Baskerville during
the Bristows’ marriage.

Within one year of the date on which Mrs.

Bristow alleges that she discovered Baskerville’s affair with Mr.
Bristow, Mrs. Bristow filed the instant action.
As detailed more fully in the May 17 Opinion and Order [docket
entry no. 54], this Court initially granted summary judgment for
Baskerville as to her alienation of affection and infliction of
emotional distress claims, holding that they were time barred
because Mrs. Bristow knew of Baskerville’s relationship with Mr.
Bristow no later than January 2001 but waited to bring this action
until

November

limitation.1

2008,

well

beyond

the

relevant

statutes

of

Mrs. Bristow then moved for reconsideration of that

decision, arguing that Baskerville and Mr. Bristow attending an
event together in 2001 did not indicate an extra-marital affair
because Mrs. Bristow had already filed for divorce at that time.
This Court agreed with Mrs. Bristow that a fact issue existed
regarding whether Mrs. Bristow’s awareness that Mr. Bristow and
Mrs. Baskerville attended an event together in 2001 was evidence of

1

The Court also granted summary judgment as to Mrs. Bristow’s
adultery claim because Mississippi does not recognize that cause of
action. Saunders v. Alford, 607 So.2d 1214, 1219 (Miss. 1992).
2

a

previous

extra-marital

affair

such

that

the

limitation began to run for Mrs. Bristow’s claims.

statutes

of

Mrs. Bristow

further argued that the “discovery rule” applied to toll the
relevant

statues

of

limitation

until

2007

when

Mrs.

Bristow

discovered that Baskerville had begun an affair with Mr. Bristow
during the Bristows’ marriage.

The discovery rule, codified at

Miss. Code Ann. § 15-1-49(2), provides that for actions involving
latent injury, the cause of action does not accrue until the
plaintiff discovers, or should have discovered, the injury.

This

Court found that no Mississippi courts had addressed whether the
discovery rule could toll the statutes of limitations for claims of
alienation of affection and negligent and intentional infliction of
emotional distress, and thus made an Erie guess that it did.
Accordingly,

this

Court

granted

Mrs.

Bristow’s

Motion

for

Reconsideration in an Order dated December 6, 2010 [docket entry
no. 63], holding that because Mrs. Bristow’s alleged injuries were
latent and the discovery rule applied, whether her claims were
time-barred was a question of fact for a jury.

The December 6

Order vacated this Court’s earlier May 17 Order granting summary
judgment to Baskerville.

This matter was then set for trial.

On February 15, 2011, just over a month before trial was set
to begin, Baskerville filed the instant Motion for Relief from
Judgment seeking modification of the Court’s December 6 Order in
light of Fulkerson v. Odom, 53 So.3d 849, 852 (Miss. Ct. App.

3

2011), which held that the discovery rule does not apply to claims
for alienation of affection.

Mrs. Bristow did not respond to the

Motion and thus on March 7, 2011, this Court Ordered Mrs. Bristow
to show cause why the Motion should not be granted [docket entry
no. 93].

Mrs. Bristow responded [docket entry no. 94] by arguing

that, as a procedural matter, relief from judgment was not proper
because a change in Mississippi law was not an “extraordinary or
compelling circumstance” as contemplated by Rule 60(b).

Mrs.

Bristow did not address the substantive question of whether the
rule announced in Fulkerson would require summary judgment for
Baskerville on statute of limitations grounds.
II. Analysis
As an initial matter, this Court notes that Rule 60(b) does
not govern Baskerville’s Motion for Relief, despite both parties’
apparent agreement that it does, because the December 6, 2010 Order
denying summary judgment was not a final judgment.

Rule 60(b)

provides that “the Court may relieve a party ... from a final
judgment, order, or proceeding” under certain circumstances.
R. Civ. P. 60(b)(emphasis added).

Fed.

But the December 6, 2010 denial

of summary judgment was an interlocutory order and therefore, this
Court is “‘free to consider and reverse its decision for any reason
it deems sufficient, even in the absence of new evidence or an
intervening change in or clarification of the substantive law.’”
Travelers Property Casualty Co. v. Federated Rural Elec. Ins.

4

Exch., 2009 WL 2900027 (S.D. Miss. Sept. 3, 2009)(quoting Lovespere
v. Niagra Mach. & Tool Works, Inc., 910 F.2d. 167, 185 (5th Cir.
1990)).

In other words, this Court may revisit its denial of

summary judgment at any time and for any reason and will certainly
do so in light of the Mississippi Court of Appeal’s decision in
Fulkerson.
In the December 6 Order, this Court noted that “if the
discovery rule does not apply to Mrs. Bristow’s claims, then [the
issue of] when she discovered her husband’s affair with Baskerville
is irrelevant because the summary judgment evidence is clear that
Mr. Bristow’s affections were alienated more than three years
before this suit was filed in 2008 (probably as far back as 1999
when Mrs. Bristow filed for divorce).” Order at 7. No Mississippi
courts had addressed this state law question and thus this Court
made

an

Erie

guess,

holding

that

Mrs.

Bristow’s

claims

for

alienation of affection and intentional or negligent infliction of
emotional distress evinced latent injuries so that the discovery
rule applied.

This Court reasoned that to hold otherwise would

“reward those who are skilled in conducting secret affairs and []
penalize the unsuspecting spouse.” Id. at 9. Accordingly, summary
judgment for Baskerville was denied and it was left for a jury to
determine whether the facts supported Mrs. Bristow’s claim that she
knew nothing of her husband’s affair (which allegedly began in
1999) until 2007.

5

The Mississippi Court of Appeals has recently filled the void
identified by the December 6 Order and addressed whether the
discovery rule applies to claims for alienation of affection in
Mississippi.
held

the

Fulkerson, 53 So.3d at 852.

discovery

rule

inapplicable

The Court of Appeals

because

“[a]lthough

a

clandestine affair is a secretive wrongdoing, it is not unrealistic
to expect a plaintiff to perceive, at the time of the affair, the
resulting harm - the loss of consortium through alienation of the
spouse’s affection.”

Id.

In other words, the Court of Appeals

reached the opposite conclusion from that reached by this Court in
the December 6 Order.

There is no question that under Fulkerson’s

precedent, this Court would have found Mrs. Bristow’s claims to be
time-barred and that Baskerville was entitled to summary judgment.
Because the Fulkerson decision came out of the Mississippi
Court of Appeals, rather than the Mississippi Supreme Court, this
Court is not bound to follow it in this diversity case.2

Labiche

v. Legal Sec. Ins. Co., 31 F.3d 350, 351 (5th Cir.1994)(“In order
to determine state law, federal courts look to final decisions of
the highest court of the state. When there is no ruling by the
state’s highest court, it is the duty of the federal court to
determine as best it can, what the highest court of the state would
decide.”).

Nevertheless, this Court is disinclined to contradict

the only Mississippi decision on point.
2

Accordingly, though not

The Court of Appeals has issued its mandate in Fulkerson and
the time for appeal to the Mississippi Supreme Court has passed.
6

required to do so, in light of Fulkerson, this Court will exercise
its discretion to amend the December 6 Order and hold that the
discovery

rule

does

not

apply

to

Mrs.

Bristow’s

claims

for

alienation of affection and negligent and intentional infliction of
emotional distress.3

As the December 6 Order plainly states,

without the application of the discovery rule, Mrs. Bristow’s
claims are time barred and summary judgment must be granted to
Baskerville.
III. Conclusion
IT IS HEREBY ORDERED that Defendant’s Motion for Relief Under
Fed. R. Civ. P. 60(b) [docket entry no. 78] is GRANTED.
IT IS FURTHER ORDERED that the Court’s Order denying summary
judgment [docket entry no. 63] is VACATED.
IT IS FURTHER ORDERED that summary judgment is GRANTED for the
Defendant, Lezli Baskerville, as to all remaining claims.
SO ORDERED AND ADJUDGED this the 12th day of April, 2011

s/ David Bramlette
UNITED STATES DISTRICT JUDGE

3

As noted in the December 6 Order, whether the discovery rule
applies to claims for negligent and intentional infliction of
emotional distress is also an open question under Mississippi law.
Though Fulkerson does not address such claims, this Court will
apply its reasoning to Mrs. Bristow’s emotional distress claims
given that they arises out of the same facts that form the basis
for the alienation of affection claim. This Court does not hold
that the discovery rule can never apply to claims for negligent or
intentional infliction of emotional distress, rather only that it
does not apply to the specific claims at issue here premised on an
extra-marital affair. See December 6 Order at 10 n3.
7