I I ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI APPELLANT ALFROD CARTER CAUSE NO CA-00026

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1 .1.1 c::* ALFROD CARTER VS. N THE COURT OF APPEALS OF THE STATE OF MSSSSPP CARL REDDX, M.D. AND REDDX MEDCAL GROUP REPLY BREF OF APPELLANT ALFORD CARTER ORAL ARGUMENT REQUESTED APPELLANT CAUSE NO CA APPELLEES.~ :1 1 l ' CHUCK McRAE, MSS. BAR N~ McRAE LAW FRM 416 EAST AMTE STREET JACKSON, MSSSSPP chuck!il1mcraelaw.net Office: Facsimile: ATTORNEY FOR APPELLANT

2 , TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORTES... iii STATEMENT OF THE SSUES... STATEMENT REQUESTNG ORAL ARGUMENT... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 CONCLUSON... 8 CERTFCATE OF SERVCE... 9 ' :.

3 ,, Cases T ABLE OF AUTHORTES Levens v. Campbell. 733 So,2d 753, (Miss. 1999)... Collins v. Collins, 625 So.2d 786, 790 (Miss. 1993)... King v. King, 152 So.2d 889, 890 (Miss. 1963)..., fjj,'..~!ill,i:~ ' Boyett v, Boyett, 119 So.2d 299 (Miss. 1928)... 1 Rundle v, Pegram. 49 Miss. 751, 754 (Miss. 1874)... 4 Crawford v. State. 18 So.2d 848, 849 (Miss. 1985)... 4 Cornet Delta, nc. v. Pale Stevedore Co, of Pascagoula, nc., 521 So.2d Estate of Stevens v. Wetzel. 762 So.2d 293 (Miss. 2000)... 6 Dynasteel Corp v, Azrec ndus" inc" 611 So.2d 977, 987 (Miss. 1992)... 6 Randolph v. Lambert, 926 So.2d 941, 946 (Miss, 2006)... 7 Rules Mississippi Rule ofcivii Procedure 8..., ,5 Mississippi Rule of Appellate Procedure Mississippi Rule of Civil Procedure 12...,..,...,... 5 Statues Section of the Mississippi Code... 1,2,6-7 Section of the Mississippi Code... 3 Section of the Mississippi Code... 3 iii

4 .1, STATEMENT OF THE SSUES 1. Appellant's Complaint Alleged a Proper Cause of Action as Mississippi Recognizes Tortious nterference with a Contract as well as the Contractual Nature of Marriage. 2. Pursuant to Rule 8 of the Mississippi Rules of Civil Procedure and Mississippi's Acceptance of "Notice Pleadings," Appellees had Sufficient Notice of the Claims Set Forth in the Complaint. 3. Appellant's claim for Emotional Distress Stems from the Appellee's Negligent.1 Conduct and is Therefore Subjected to the Three-Year Statute of Limitation provided in Mississippi Code Annotated STATEMENT REQUESTNG ORAL ARGUMENT Pursuant to Mississippi Rule of Appellate Procedure 34(b), oral argument would assist this Honorable Court in its decision-making process. Due to the complex nature of the case, the Court's consideration of the issues presented by this appeal may be assisted or advanced by the presences of the parties before the Court to comment upon the issues and respond to any inquiries concerning the circumstances in this case and why these facts differ from the cited '1 cases. SUMMARY OF THE ARGUMENT Mississippi law recognizes tortious interference with a contract as a cause of action. See Levens v. Camphell, 733 SO.2d 753, (Miss. 1999); Collins v. Collins, 625 So.2d 786, 790 (Miss. 1993). The trial court improperly granted Defendant's Motion for Judgment on the Pleadings by not acknowledging that Mississippi law recognizes that marriage is contractual in nature. King v. King, 152 So.2d 889, 890 (Miss.1963), citing Boyett v. Boyell, 119 So.2d

5 .1 299(Miss. 1928). For this reason we are now before this honorable Court so that arguments can be heard on the merits. n addition, the reading of Rule 8 of the Mississippi Rules of Civil Procedure is at issue. Sufficient notice of a claim for alienation of affection was given in the Complaint which stated "[tlhe Defendant... did negligently and recklessly elicit/solicit and alienate the affection of Harriet L. Carter... As a direct and proximate cause of said alienation, the Plaintiff sufered ~j,i loss... "(R. at 7)(emphasis added). Lastly, the claim for reckless infliction of emotional distress should not time-barred by a one year statute of limitations. The claim for reckless infliction of emotional distress stems from the wrongful conduct of the Detendant that resulted in the loss of affection. The purpose of the m ~,. i 'ff ~ '..~, trial would be to allow the Plaintiff the opportunity to show the casual connection between the wrongful conduct and the loss of affection. For this reason the statute oflimitations is three (3) years as stated in Mississippi Code AU10tated Again, the trial court erred in ruling that this was not a claim upon which relief could be granted. ARGUMENT 1. Appellant's Complaint Alleged a Proper Cause of Action as Mississippi Recognizes Tortious nterference with a Contract as well as the Contractual Nature of Marriage. Defendant has relied on the fact that there are no previous cases that have acknowledged the term of rut "tortious inference with a marital contract." However, there is no dispute between the PlaintitTand the Defendant that Mississippi case law does recognize intentional interference with a contract. The question before this Court rests within whether or not marriage is a contract. :1. 2 '

6 ,, Anyone that has ever attended a marriage ceremony has heard the bride and groom exchange vows. While the vows will vary from ceremony to ceremony, it is normally contains the following: [W)ill you have this woman/man as your lawful wedded partner, to live together in the estate of matrimony? Will you love him/her, honor him/her, comfort him/her, and keep him/her in sickness and in health; forsaking all others, be true to him/her as long as you both shall live? Both parties recite the vows to be iawfiil wedded partners and accept this contract by saying " E1, do." Not only is the ceremony itself contractual in nature, but the state has heavily regulated the marriage contract for years. When two parties desire to get married there arc regulations that they must follow to form the marriage contact and then if they wish to terminate the contract there are rules oflaw on how to dissolve the contract. n Mississippi Code Annotated , the requirements for a marriage license are listed and include () registration with the state, (2) an age requirement, (3) that the registration stay open to the public for three days before the parties can enter into the maltiage contract, and until recent legislation the regulations required a,4 '1 health screening for syphilis prior to entering the marital contract. Miss. Code Ann , el al. All of these requirements point to the State of Mississippi regulating the contractual obligations that must be met prior to marriage. n addition, the laws regulate how the marital contract can be dissolved. There are twelve fault based grounds for dissolving the marital contract as well as an irreconcilable differences divorce. The fact is that Mississippi law does not allow the dissolution of a marriage without a breach of the marital contract unless both parties agree to dissolve the contract through ineconcilable differences. Miss. Code Ann and , el al. 3

7 '\ J When the regulations set forth in the Mississippi Code are combined with the case law in ; Mississippi it is apparent that marriage is a contract. The court stated in Rundle ;'[ilt is settled law in this state, that marriage is a contract, and must be entered into by parties competent to make it." Rundle v. Pegram, 49 Miss. 751, 754 (Miss. 1874). Again, this Court has expounded on the issue in the Crawford: By the law itself, marriage is regarded as a contract, and morc than an ordinary.1 contract which affects only property rights; for, in marriage contracts, not only are the i parties thereto vitally concerned, the society-the state itself- is likewise concerned. Marriage was before statutes, and the foundations of good government rest upon faithfbl maintenance of the nuptial contract...now we know that, after rescission and annulment of ordinary contracts by the courts of the country, the parties become freed therefrom, and are no longer bound thereby... Exactly this result follows the dissolution of the marriage contract...t could not be otherwise, regarded simply as a contract, and,;1 T pre-eminently could not be otherwise regarding it as something more than an ordinary contract. Crawford v. Siale, 18 So.2d 848, 849 (Miss. 985)(emphasis added). The courts have been very clear, as well as the statutes regarding marriage, that marriage is a.~.'! ' " contract. The Defendant has relied on the facl that Mississippi has never recognized a cause of action for tortious interference with a marriage contract; however, they do agree that the state recognizes tortious interference with a contract and that marriage is a contract. They argue that a marriage contract is not the type of contract that should be included in a cause of action for tortious interference with a contract. n other words, just because it has never been done before it should not be done now. The Plaintiff would urge this Court to look at the statutes and the case law to see that the issues fit squarely together. 4 i

8 , ',, Due to the fact that there is no question as to marriage as a contract, and the fact that tortious inference with a contract is a cause of action, the Plaintiffs action should not have been dismissed by a Rule l2( c) motion, When the allegations in the Complaint are taken as true, the Complaint clearly stated a claim upon which relief could be granted, 2. Pursuant to Rule 8 of the Mississippi Rules of Civil Procedure and Mississippi's Acceptance of "Notice Pleadings," Appellees had Sufficient Notice of the Claims Set Forth in the Complaint.,3,rn,~ 1)1 i,i ' n 'ffi,n r~ '. _ J The Defendant has argued that the Plaintiff did not give sufficient notice of the claim of alienation of affection, Under Rule 8 of the Mississippi Rules of Civil Procedure, it is only necessary that pleadings provide sufficient notice to a Defendant of the claims and grounds upon which relief is sought n the Plaintiff s Complaint, the Plaintiff clearly alleges that "[t]he Defendant,,.did negligently and recklessly elicit/solicit and alienate the affection of Harriet L. CarteL "As a direct and proximate cause of said alienation, the Plaintiff suffered loss,., "(R. at 7)(emphasis added), The court in Comet stated that the sut1iciency of the complaint is in substantial part determined by reference to Rule 8(a) and (e) when reviewing a motion for failure to sate a claim upon which relief can be granted under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, Comet Delta, nc, )', Pate Stevedore Co, of Pascagoula, nc., 521 So.2d 857. The court also stated: The question therefore is whether in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief The complaint should not be dismissed merely because plaintiff's allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theoly,.,nonetheless, as is discussed more fully elsewhere, the pleader must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. Jd. (emphasis added). 5 "

9 . l T, 1 ' The Plaintiff met the requirement set forth in the Comet decision through his pleadings and his claims should not have been dismissed by the trial court. The Defendant cannot argue that he did not have sutlicient notice when within his argument against tortious inference with a marital contract he states that "every state to address the issue has held that a claim for tortious inference with a marriage contract is merely a relabeled claim for alienation of affections." See Exhibit A-. The Defendant's argument, in and of itself, shows that he was aware that alienation of affection was an issue as a cause of action; otherwise, there would be no reason to argue that alienation of affection and tortious interference with a marital contract were the same issue just re-abeled. As per Cornel, the legal theory for which the plaintiff intends to proceed on is not a cause for dismissal. The facts sub judice indicate that if the Complaint was reviewed in the light most favorable (0 the Plaintifftha( (here was a cause of action for alienation of atfection even if the court refused to accept the legal theory of tortious inference with a marital contract. The Plaintiff clearly noticed the Defendant that alienation of affection was an issue and the Defendant clearly understood that alienation of affection was an issue "re-abeled" as tortious interference with a martial contract. Under M.R.C.P. 8, the only necessity required is "that the pleadings provide sutlicient notice to the defendant of the claims and grounds upon which relief which is sought." Estate a/stevens v. Wetzel. 762 So.2d 293 (Miss. 2000) (citing Dynasteel Corp. v. Aztec ndus, nc., 611 So.2d 977, 984 (Miss. 1992)). The Plaintiff has more than met this requirement and therefore his suit should not have been dismissed by the trial court. 3. Appellant's claim for Emotional Distress Stems from the Appellee's Negligent Conduct and is Therefore Subjected to the Three-Year Statute of Limitation provided in Mississippi Code Annotated ' ' 6 'j

10 " l, T The trial court erred when it found that the Plaintiffs claim for reckless infliction of emotional distress was barred by a one-year statute of limitations by converting the claim to one of intentional infliction of emotional distress, The Plaintiffs position in the Complaint is that the actions of the Defendant were blatantly negligent and those actions disrupted the marital contract between the Plaintiff and his wife. One of the purposes of filing the claim was so that discovery could be conducted to gather, evidence supporting the claim. The Defendant's suspect behavior and bad faith delays in discovery further supported the Plaintiffs claim of reckless infliction of emotional distress. This Court has held that a Plaintiff must prove "some sort of physical manifestation of injury or demonstrable harm, whether it be physical or mental, and that harm must have bcen reasonably foreseeable to the defendant" Randolph v. Lambert, 926 So.2d 941,946 (Miss.2006). However, to recover for "mental anguish unaccompanied by demonstrable physical or mental injury, the defendant's conduct must be malicious, intentional, willful, wanton, grossly careless, 1 indifferent, or reckless." Jd. However, due to the Defendant's actions during discovery, the Plaintiff was not allowed to develop his case and obtain the evidence needed to satisfy his burden of proof. These facts further show that there were disputed claims of negligence and that the motion on Rule l2(c) should not have been granted by the trial court. Again, the three year statute found in Mississippi Code Annotated would apply. f discovery had been properly conducted and the facts were truly viewed in the light most favorable to the Plaintiff then there was definitely a claim by the Plaintiff upon which relief can be granted and the trial court should not have dismissed the claim, 7

11 ,, T, CONCLUSON For all the reasons stated, the trial court erred in granting the Defendant's Rule 12(c) motion. t is clear that Mississippi law recognizes a cause of action for tortious interference with a contract. t also recognizes that marriage is a contract. The fact that both of these issues are recognized by the state is reason enough to allow the claims to move forward and not be dismissed on a Rule 12(c) motion. Additionally, the Defendant admitted in his brief that he understood tortious interference with a marital contract to be another label for alienation of affection. While the language in the Complaint alone is enough to support an alienation of affection claim, the Defendant's argument only bolsters the possession that they were well aware and noticed of the Plaintiffs intentions to pursue such a claim. Lastly, the statute oflimitations for the Plaintiffs claim ofreckless infliction of emotional distress falls under the three year statute and should not be barred by a one year statute; therefore it is a claim upon which relief J can be granted. Accordingly, this Court should reverse the decision of the trial court and remand this matter to the Circuit Court to allow this matter to be fully litigated and tried on the merits. THS the 22 nd day of August, ~ CHUCK McRAE, MS~ McRAE LAW FRM 416 EAST AMTE STREET JACKSON, MS Chuck'c2mcraelaw.net Office: Facsimile:

12 .1,, CERTFCATE OF SERVCE, Chuck McRae, do hereby certify that have sent a true and correct copy of the above and foregoing to the following: Judge Jeff Weill, Sr. Hind County Circuit Court Post Office Box Jackson, Mississippi Via United States Mail Walter T. Johnson, Esq. Corey D. Hinshaw, Esq. Watkins & Eager, PLLC 400 East Capitol Street Jackson, Mississippi Via United States Mail THS the 22"d say of August, ~1fie6A- CHUCK McRAE, MS~ McRAE LA W FRM 416 EAST AMTE STREET JACKSON, MS Chuck!ii)mcraelaw.net Office: Facsimile: