Stewart v. Wisinger
Filing
48
ORDER denying 30 Motion for Summary Judgment; denying 34 Motion for Summary Judgment; denying 36 Motion for Summary Judgment Signed by District Judge David C. Bramlette, III on 7/3/2019 (DW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CYNTHIA R. STEWART
PLAINTIFF
V.
CAUSE ACTION NO. 5:17-CV-148-DCB-MTP
MELISSA ANN “MISSY” WISINGER
DEFENDANT
V.
LAWRENCE STEWART
THIRD-PARTY DEFENDANT
ORDER
Before
(“Missy”)’s
the
Motion
Court
for
is
Defendant
Summary
Judgment
Melissa
(Doc.
Ann
Wisinger
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, pled
Jurisdiction is based on diversity of citizenship, so the Court applies
Mississippi law. Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 491
(5th Cir. 2000)(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
2 Missy alleges that she was first stalked and then enticed into an affair by
Dr. Stewart. Doc. 5, p. 4. Missy contends that Dr. Stewart “engaged in a long
and calculated campaign to seduce and brainwash Missy Wisinger in an effort to
control her and obtain sexual gratification from her.” Doc. 5, p. 4. Cynthia
and Dr. Stewart both maintain that Missy “began an affair with Dr. Stewart . .
. and repeatedly enticed Dr. Stewart to leave his marriage.” Doc. 34, p. 1;
Doc. 36, p. 1; Doc. 44, p. 1.
1
2
guilty 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
emotional
sued
Missy,
distress;
claiming
negligence
negligent
and
gross
infliction
negligence;
of
and
alienation of affection. See Doc. 1, pp. 4-6. Cynthia seeks damages
and
injunctive
relief
to
prohibit
3
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 thirdparty 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).
4
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 and
5
duties 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.
6
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.
7
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,
infliction
demanding
of
relief
emotional
for
distress;
intentional
and
and
negligence
negligent
and
gross
negligence. Doc. 5, p. 10.
A
Cynthia moves for summary judgment on Missy’s claims of
malicious
prosecution
and
negligent
distress. See Doc. 34.
8
infliction
of
emotional
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 original judicial proceedings,
either criminal or civil; (2) by or at the insistence of the
defendants;
(3)
the
termination
of
such
proceedings
in
the
plaintiff’s favor; (4) malice in instituting the proceedings; (5)
want of probable cause for the proceedings; and (6) suffering of
damages as a result of the action or prosecution complained of.
Orr v. Morgan, 230 So. 3d 368, 372 (Miss. Ct. App. 2017)(internal
citation omitted).
Cynthia contends that Missy cannot prove several elements of
this claim, especially termination of the action in Missy’s favor:
“First and foremost, a malicious prosecution claim is premature in
this case, because this action has not been terminated much less
terminated in Defendant’s favor.” Doc. 35, p. 4. Missy “confesses
that her counterclaim for malicious prosecution is premature as
there has not yet been a termination of the proceedings brought
against her.” Doc. 39, p. 3. Although it is true that termination
has not occurred, it is premature to grant summary judgment at
this stage in the litigation on that which is a core issue.
To succeed on a claim of negligent infliction of emotional
distress, Missy must prove duty, breach, causation, and damages,
as well as “some sort of physical manifestation of injury or
9
demonstrable harm, whether it be physical or mental, and that harm
must have been reasonably foreseeable to the defendant.” Mosley v.
GEICO Ins. Co., 2014 WL 7882149, at *19 (S.D. Miss. 2014)(internal
citation and quotation marks omitted). The inquiry focuses on
Cynthia’s conduct, rather than on Missy’s physiological condition:
“It is the nature of the act itself – not the seriousness of its
consequences – that gives impetus to legal redress.” Mosley, 2014
WL 7882149, at *18 (citing Jenkins v. City of Grenada, Miss., 813
F.Supp. 443, 446 (N.D. Miss. 1993)).
Regarding Missy’s negligent infliction of emotional distress
claim, Cynthia argues that Missy cannot meet her burden because
Cynthia had “no duty” to Missy. Doc. 34, p. 3. In support, Cynthia
states, “It is undisputed that Plaintiff [Cynthia] and Defendant
[Missy] had no personal, professional, contractual or business
relationship prior to Plaintiff learning of Defendant’s affair
with her husband.” Doc. 34, p. 3. Cynthia argues that Missy cannot
show that she has suffered damage in any way: “[Missy] has not
produced any medical records or any other evidence that she has
had any physical, emotional or mental consequences of any action
taken by Plaintiff.” Doc. 34, pp. 3-4.
Missy rejoins that her counterclaim for negligent infliction
of emotional distress has merit and should not be dismissed. She
argues that in her Responses to Cynthia’s Interrogatories, Missy
10
provided proof of demonstrable injuries as well as the name and
address of the medical and healthcare providers she saw for
treatment. Doc. 39, pp. 2-3.
In some cases, depending on the existence of malicious,
intentional or outrageous conduct, there must be a showing of
demonstrative
harm,
and
that
harm
must
have
been
reasonably
foreseeable to the defendant. Adam v. U.S. Homecrafters, Inc., 744
So. 2d 736, 742 (Miss. 1999). Missy states, “The record is clear
that by filing this suit with an ulterior motive, Mrs. [Cynthia]
Stewart’s conduct was malicious, intentional, willful, wanton,
grossly careless, indifferent and/or reckless, and as such, proof
of demonstrable harm is not necessary.” Doc. 38, p. 2. Missy
believes that Cynthia’s action against Missy is “in retaliation
for damages proximately caused by the criminal conduct of Mrs.
Stewart’s own husband.” Doc. 39, p. 2. Missy argues that her
emotional distress and damages are reasonably foreseeable results
of Cynthia’s conduct. Doc. 39, p. 2.
It is premature for this Court to find that the elements of
negligent infliction of emotional distress are not met.
B
Dr. Stewart moves for summary judgment on Missy’s claims of
intentional and negligent infliction of emotional distress; and
negligence and gross negligence. See Doc. 36.
11
In his motion for summary judgment, Dr. Stewart reiterates
Cynthia’s argument that Missy has not produced any documents in
discovery relating to any healthcare she has received and has not
designated any medical experts who would testify on her behalf.
Doc. 36, p. 3. Dr. Stewart also argues that Missy’s intentional
tort claim is barred by the one-year3 statute of limitations and
that all of Missy’s negligence-based claims should be dismissed as
they were not filed within the three-year4 statute of limitations.
Doc. 37; p. 4; Doc. 36, p. 4. He contends that “Missy testified
under oath that the last time Dr. Stewart provided any treatment
to her was in 2014 and the last time he affirmatively contacted
her was in late 2014. [See] Exhibit B, Transcript of DEA Hearing,
pp. 291-294, 309-321, and 352-355. Missy Wisinger did not file her
Third-Party Complaint in this case until March 30, 2018.” Doc. 36,
p. 4; see Doc. 5.
Missy rejoins that her claims were timely filed as the
relevant statute of limitations was tolled due to Missy’s repeated
injuries. Doc. 41, p. 1. Missy alleges she was plied with highly
addictive prescription drugs, brainwashed, and manipulated into
entering
a
mentally
and
emotionally
damaging
extramarital
The statute of limitations for a claim of intentional infliction of emotional
distress is one year. Jones v. Fluor Daniel Serv. Corp., 32 So. 3d 417, 423
(Miss. 2010).
4 The statute of limitations for negligent infliction of emotional distress is
three years. Breeden v. Buchanan, 164 So. 3d 1057, 1061-1062 (Miss. Ct. App.
2015).
3
12
relationship with Dr. Stewart. Doc. 41, p. 2. Missy states that
Dr. Stewart’s actions were “intentional, wanton, willful, and so
outrageous so as to exceed all bounds of decency.” Doc. 5, p. 10.
Therefore, she reasons, “proof of demonstrable harm to [Missy] is
not necessary.” Doc. 41, p. 1. She also states that as a proximate
cause of Dr. Stewart’s actions, she suffered several injuries and
severe psychological mechanisms, including mental and emotional
distress,
psychological
treatment,
and
financial
hardship
associated with defending Cynthia’s suit against her. Doc. 5, p.
10; Doc. 41, p. 2.
Missy’s injuries allegedly prevented her from “perceiving,
knowing,
or
understanding
the
existence
and
nature”
of
her
injuries. Doc. 41, p. 2. She states that she recently received
psychotherapy and treatment for severe emotional problems from St.
Dominic Hospital and Anne Henderson, PhD. Doc. 41, p. 2. She
contends
that
she
still
experiences
ongoing
effects
of
Dr.
Stewart’s conduct in 2014, thereby converting his conduct into a
“continual tort.” Id. Missy quotes a Mississippi Supreme Court
case as support: “A continuing tort involves a repeated injury and
the cause of action begins to run from the date of the last injury,
tolling the statute of limitations. Smith v. Franklin Custodian
Funds, Inc., 726 So. 2d 144 (¶17) (Miss. 1998).” Doc. 41, p. 3;
McCorkle v. McCorkle, 811 So. 2d 258, 264 (Miss. Ct. App. 2001).
The entire quote in the original case, however, reads differently:
13
[W]here a tort involves a continuing or repeated injury,
the cause of action accrues at, and limitations begin to
run from, the date of the last injury, or when the
tortious acts cease. Where the tortious act has been
completed, or the tortious acts have ceased, the period
of limitations will not be extended on the ground of a
continuing wrong.
A “continuing tort” is one inflicted over a period of
time; it involves a wrongful conduct that is repeated
until desisted, and each day creates a separate cause of
action. A continuing tort sufficient to toll a statute
of limitations is occasioned by a [sic] continual
unlawful acts, not by continual ill effects from an
original violation.
Smith v. Franklin Custodian Funds, Inc., 726 So. 2d 144, 148 (Miss.
1998)(emphasis added). As to the statute of limitations, there are
unresolved factual matters, and at this stage of the litigation,
the Court declines to decide this issue as a matter of law.
IV
Viewing
facts,
resolving
doubts,
and
drawing
reasonable
inferences in each non-movants’ favor, the Court finds summary
judgment improper. Cynthia and Missy have raised genuine issues of
material fact, precluding summary judgment in their claims against
each other and in Missy’s claims against Dr. Stewart.
Accordingly,
IT IS HEREBY ORDERED that Defendant Missy Wisinger’s Motion
for Summary Judgment (Doc. 30); Plaintiff Cynthia Stewart’s Motion
14
for Summary Judgment (Doc. 34); and Third-Party Defendant Lawrence
Stewart’s Motion for Summary Judgment (Doc. 36) are DENIED.
SO ORDERED this the 3rd day of July, 2019.
__/s/ David Bramlette_______
UNITED STATES DISTRICT JUDGE
15
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