BRIEF OF THE APPELLEE/CROSS-APPELLANT

E-Filed Document Mar 22 2017 16:26:00 2016-CA-00637 Pages: 28 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO: 2016-CA-00637 DAVID MICHAEL LYON, JR. APPELLANT MISSISSIPPI SUPREME COURT CAUSE NO.: 2016-CA-00637 VS. FORREST COUNTY CAUSE NO.: C114-0186 BILLY McGEE APPELLEE/CROSS-APPELLANT BRIEF OF THE APPELLEE/CROSS-APPELLANT APPEAL FROM THE CIRCUIT COURT OF FORREST COUNTY, MISSISSIPPI, HONORABLE L. BRELAND HILBURN, SENIOR STATUS JUDGE, PRESIDING ORAL ARGUMENT REQUESTED PATRICK H. ZACHARY (MSB NO. 6674) ZACHARY & LEGGETT, PLLC ATTORNEYS AT LAW 211 S. 29 TH AVENUE, SUITE 100 P. O. BOX 15848 HATTIESBURG, MS 39404-5848 TELEPHONE (601) 264-0300 FACSIMILE (601) 264-0311 Email: pat@zandllaw.com

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification of recusal. Honorable L. Breland Hilburn Senior Status Judge Patrick H. Zachary, Vicki R. Leggett, Zachary & Leggett, PLLC Attorneys for Appellee/Cross-Appellant Phillip Londeree, Esquire Attorney for the Appellant/Cross-Appellee Mr. David Michael Lyon, Jr., Appellant/Cross-Appellee Mr. Billy McGee, Appellee/Cross-Appellant /s/ Patrick H. Zachary PATRICK H. ZACHARY Zachary& Leggett, PLLC Attorney at Law 2

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 2 TABLE OF CONTENTS... 3 TABLE OF AUTHORITIES... 4 STATEMENT OF THE CASE... 6 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 14 A. ISSUE I... 14 B. ISSUE II... 18 CONCLUSION... 19 STATEMENT OF THE ISSUE ON CROSS-APPEAL... 21 STATEMENT OF THE CASE ON CROSS APPEAL... 22 ARGUMENT ON CROSS-APPEAL... 24 CONCLUSION ON CROSS-APPEAL... 27 CERTIFICATE OF SERVICE... 28 3

TABLE OF AUTHORITIES CASES: Adams v. Graceland Care Ctr. of Oxford, LLC, 208 So. 3d 575 ( 7-8) (Miss. 2013)... 25 Brown vs. McQuinn, 501 So. 2d 1093, 1095 (Miss. 1986)... 16 Clark vs. Neese, 131 So. 3d 556, 561-562 (Miss. 2013)... 26 Copiah County vs. Oliver, 51 S. 3d 205, 207 (Miss. 2011)... 26 Doss v. Dixon, 131 So. 3d 1265, 1269 (Miss. App. 2014)... 13 Fitch v. Valentine, 959 So. 2d 1012, 1025 (Miss. 2007)... 14 Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988)... 16 Galloway v. Travelers Ins. Co., 515 So. 2d 678, 684 (Miss. 1987)... 19 Ivy v. Merchant, 666 So. 2d 445, 448 (Miss. 1995)... 11, 14 Kirk v. Pope, 973 So. 2d 981, 991 (Miss. 2007)... 26 Miller v. Meeks, 762 So. 2d. 302, 304 (Miss. 2000)... 14 Palmer v. Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, 1356 (Miss. 1990)... 11, 14, 15, 16, 19 Scales v. Lackey Memorial Hospital, 988 So. 2d 426, 434 (Miss. Ct. App. 2008)... 16, 19 Stuckey v. Provident Bank, 912 So, 2d 859, 867 (Miss. 2005)... 13 Trotter v. State, 907 So. 2d 397, 403 (Miss. Ct. App. 2005)... 19 Wood v. Cooley, 78 So. 3d 920 (Miss. 2011)... 26 RULES OF PROCEDURE: Miss. R. Civ. P. 56(c)... 13 Miss. R. Civ. P. 56(e)... 13, 16 Miss. R. Civ. P. 59(e)... 17, 18 4

STATEMENT OF THE CASE As stated by the Plaintiff, David Michael Lyon, Jr., this is an alienation of affection case. Following the filing of the Complaint, Defendant, Billy McGee filed his Answer to the Complaint on November 7, 2014. (Rec. Ex. 0014). In the second defense of that Answer, Billy McGee asserted that there was no affection or consortium existing in the relationship of the Plaintiff and his former wife, Emma Robin Lyon at the alleged date of any involvement with this Defendant and therefore Plaintiff has no claim under the law. (Rec. Ex. 0014). Additionally, in his affirmative defenses, Defendant stated that there was no causal connection between any alleged conduct on the part of the Defendant and any loss or damages claimed by the Plaintiff. (Rec. Ex. 0021). Thereafter, discovery was conducted and on March 13, 2015, sworn Answers to Interrogatories were served by Billy McGee upon counsel for David Michael Lyon, Jr. (Rec. Ex. 0681). In those sworn interrogatory responses, Billy McGee admitted that the affair began October 4, 2013. See Response to Interrogatory No. 6. (Rec. Ex. 0683). No sworn interrogatory responses were ever served by the Plaintiff and none are reflected in the record. On January 20, 2016, Billy McGee filed a Motion to Dismiss or in the Alternative for Summary Judgment. In paragraph 4 of his Motion, Billy McGee referenced his third defense as set forth in the Answer to the Complaint admitting that any alleged conduct or contact with the Plaintiff s former spouse, Emma Robin Lyon, occurred long after the separation of the Plaintiff and Emma Robin Lyon and accordingly, there is no causal connection between the alleged conduct on the part of this Defendant and any alleged loss claimed by the Plaintiff. (Emphases added); (Rec. Ex. 0035). As further support for his position, Billy McGee attached a 5

copy of the Complaint for Divorce and Motion for Temporary Relief filed by Plaintiff s then wife, Emma Robin Lyon, on July 22, 2013, wherein the verified pleading stated that the parties final separation occurred on or about July 12, 2013, in Perry County, Mississippi, and the parties have not cohabited together as husband and wife since that time. (P. VI); (Rec. Ex. 0063). Also attached as an exhibit to McGee s Motion to Dismiss or Alternatively for Summary Judgment was the executed Child Custody, Support and Property Settlement Agreement of David Michael Lyon, Jr., and Emma Robin Lyon wherein the parties signed a sworn and verified agreement advising the Court that irreconcilable differences have arisen between Robin and Mickey resulting in the parties heretofore separating on the 12 th day of July, 2013... (Rec. Ex. 0073). This property settlement agreement was relied upon by the Court and made a part of the Final Judgment of Divorce granted by the Perry County Chancery Court Judge on the 3 rd day of June, 2014. See unrebutted Itemization of Facts Not in Dispute. (Rec. Ex. 0041). David Michael Lyon, Jr., also admitted in his deposition that he signed sworn pleadings in the Perry County Chancery Court matter stating that instead of adultery, irreconcilable differences had arisen that caused his marriage to be impossible to continue and separation for said reason occurred on July 12, 2013. (Rec. Ex. 0103-0104). Billy McGee filed a Memorandum Brief in Support of his Motion for Summary Judgment again reiterating in the first paragraph of the discussion portion thereof that no conduct on behalf of McGee caused the loss of affection or consortium, a necessary element of the claim of alienation of affection. (Rec. Ex. 0030). Thereafter, David Michael Lyon, Jr., filed his Memorandum Brief in Opposition to the Motion for Summary Judgment. (Rec. Ex. 0092). No sworn interrogatory responses, affidavits, deposition testimony or other probative evidence was presented in response to Billy McGee s 6

assertion that the necessary element of causation could not be proven. McGee s Rebuttal Memorandum Brief was filed on February 10, 2016, referencing the Itemization of Facts previously filed by McGee and not disputed by David Michael Lyon, Jr. (Rec. Ex. 0097-0099). McGee attached to his Rebuttal Memorandum, sworn testimony of David Michael Lyon, Jr., wherein he admitted that he withdrew his fault grounds against Emma Robin Lyon and signed papers stating that instead of adultery, irreconcilable differences caused his marriage to be impossible to continue. (Rec. Ex. 0101-0104). That being admitted by the Plaintiff, following the hearing on February 11, 2016, having received no evidence in response to McGee s Motion tending to support involvement by McGee with the wife of Lyon, before July 12, 2013, judgment was entered in favor of McGee due to Plaintiff s failure to provide any proof of causation regarding any alleged conduct on the part of McGee and any damages or injuries claimed by the Plaintiff. (Rec. Ex. 0105-0107). Being aggrieved at the Court s ruling, David Michael Lyon, Jr., filed his Motion for Reconsideration (or Alternatively, Motion for Rehearing) on March 9, 2016. (Rec. Ex. 0108). Thereafter, Plaintiff filed with the Clerk, numerous records allegedly consisting of phone calls however, no affidavit or testimony from any sponsoring witness was received and therefore these documents are not evidence in the case, even though they were filed with the Clerk subsequent to the initial motion hearing on the Motion to Dismiss or for Summary Judgment filed by McGee (and the Court s ruling thereon) and only when the Motion for Reconsideration was filed. (R. 0132-0523) Billy McGee filed his response to the Motion for Reconsideration (or Alternatively, Motion for Rehearing) on March 23, 2016. (Rec. Ex. 0620). The hearing on this Motion was 7

held on March 31, 2016, and the Trial Court entered its Order Denying the Motion for Reconsideration filed by David Michael Lyon, Jr. (Rec. Ex. 0629). This appeal followed and McGee filed Notice of Cross-Appeal thereafter. SUMMARY OF THE ARGUMENT The Plaintiff in the trial court, David Michael Lyon, Jr., acknowledges that one of the three elements that must be established to prove alienation of affection under Mississippi law is the causal link between the wrongful conduct of the defendant and the loss of affection or consortium. Additionally, Plaintiff argues that the basis for the Court s finding or reliance in granting its summary judgment in favor of McGee was the admission in his Answer and nothing more. Plaintiff ignores the fact that McGee also relied upon his sworn Interrogatory response and the previously filed sworn divorce pleadings signed by Plaintiff and his then wife under oath, stating that their separation occurred on July 12, 2013, due to irreconcilable differences that had arisen between the parties which made the continuation of their marriage impossible. Accordingly, McGee argued that Plaintiff had presented no proof of any causal link or connection between any alleged wrongful conduct (of McGee) and the Plaintiff s alleged loss of affection or consortium. Plaintiff made arguments and focused attacks on the proof presented by McGee. However, Plaintiff failed to ever respond to that proof by sworn interrogatory, affidavit, deposition or otherwise. In fact, Plaintiff presented no proof whatsoever that could be utilized by the Trial Court to support Plaintiff s claim that the alleged actions of McGee caused his loss of affections and consortium either before or at the hearing. Plaintiff attached approximately 391 pages of telephone records to his Motion for Reconsideration without sponsoring affidavit or any other proof to possibly give them some evidentiary basis. Additionally, Plaintiff never presented 8

any proof prior to the actual hearing on the Motion for Summary Judgment and only attempted to argue these phone records in his Motion for Reconsideration made after the Court s grant of summary judgment in favor of McGee. Plaintiff ignores the fact that McGee, as the moving party, presented evidence showing that proof of an essential element of Plaintiff s claim (the nonmoving party s claim) was absent. Instead of focusing on argument, Plaintiff should have presented proof sufficient to establish the element of causation of Plaintiff s claim (if in existence) rather than relying on the allegations of the Complaint an argument of counsel. The ruling of the Trial Court in granting the Motion for Summary Judgment in favor of McGee was correct and the fact that it was upheld on Plaintiff s Motion for Reconsideration solidifies the fact that Plaintiff presented no evidence whatsoever regarding the causation element of this claim. The ruling of the Trial Court should be affirmed. ISSUE I Plaintiff ignored the challenge to the specific elements of his cause as presented in the Motion to Dismiss or in the Alternative for Summary Judgment filed by McGee. Apparently, Plaintiff also ignored the argument set forth in Paragraph 4 of McGee s Motion that any alleged conduct or contact between McGee and Plaintiff s former spouse, Emma Robin Lyon, occurred long after the separation of the Plaintiff and Emma Robin Lyon and accordingly, there is no causal connection between the alleged conduct on the part of this Defendant and any alleged loss claimed by the Plaintiff. McGee went on to state that Defendant lacks the element of causation regarding any and all claims set forth in the Complaint. (Rec. Ex. 0034-0035). Plaintiff is correct that McGee argued additionally that issue preclusion and/or judicial estoppel barred recovery in the alienation of affection action because Plaintiff and his wife had entered into an agreement wherein Plaintiff agreed to withdraw fault grounds of adultery and to instead 9

make a sworn statement in his Property Settlement and Child Support Agreement that irreconcilable differences have arisen between Robin and Mickey resulting in the parties having heretofore separated on the 12 th day of July, 2013... This Agreement was sworn to by the parties and signed under oath (Rec. Ex. 0089) and both parties were represented by separate counsel who presumably had advised them regarding the affects of withdrawal of fault of grounds and proceeding on a sworn pleading which would be relied upon by the Court (Rec. Ex 0090). In fact the Property Settlement and Child Support Agreement was relied upon by the Court and was accepted by the Court and attached to the Final Judgment and incorporated therein per the Itemization of Facts Not in Dispute. (Rec. Ex. 0040-0041). Plaintiff references the transcript on the Motion for Rehearing and ignores the language of the Trial Court s order which clearly sets forth the law of the State of Mississippi mandating that the entry of summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party s case and on which that party will bear the burden of proof at trial. (Rec. Ex. 0106). Additionally, the Court specifically stated that allegations without detailed and precise facts will not prevent summary judgment. (Rec. Ex. 0106). Specifically, the Court stated that Plaintiff responded in argument to McGee s Motion for Summary Judgment eluding to phone records obtained tending to support the existence of some previous liaisons. However, the Trial Court specifically states that Plaintiff s response falls short of establishing a genuine issue of material fact. (Rec. Ex. 0107). The Trial Judge found that Plaintiff failed to provide any evidence whatsoever to show the existence of an element essential to Plaintiff s case, (i.e. causation), in response to McGee s Motion and allegation that no such proof had been presented. Plaintiff refers to McGee s claim that there was no genuine issue of material fact as to causation as a throw away statement. (See Page 10, Plaintiff s/appellant s 10

Brief before this Court). Plaintiff admits that he did not file any sworn statements or sworn discovery materials to rebut McGee s claim of lack of proof of the element of causation. Instead, Plaintiff relies on the fact that he provided as exhibits to the Motion for Reconsideration or Rehearing, discovery documents... Discovery documents, without an affidavit or sponsoring witness or unsworn discovery documents may not be considered by the Trial Court as evidence precluding summary judgment. No evidence on behalf of Plaintiff was before the Trial Judge when this Motion for Summary Judgment was heard. Perhaps, if these discovery documents consisting of phone records were so important, the Plaintiff would have presented them along with the appropriate affidavit or other testimony of a proper sponsoring witness prior to the hearing on the summary judgment motion. In fact, Plaintiff admits through his counsel at the hearing on the Motion for Reconsideration that we didn t offer those through a sponsoring witness because we had no reason to submit affidavits or other supporting elements (sic) in response to an argument that there wasn t a triable issue of fact. (Transcript of Proceedings P.49). It appears that all of Plaintiff s arguments, both at the trial level and before this Court, relate to the duty upon the movant on motions for summary judgment. However, Plaintiff apparently does not recognize that if the party moving for summary judgment does not bear the burden of proof at trial as to the subject claim, the moving party need only present some evidence showing that proof of an essential element of the non-moving party s claim is absent. Palmer v. Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, 1356 (Miss. 1990). If the non-moving party then fails to make a showing sufficient to establish any essential element of their claim, all other facts are immaterial and the moving party is entitled to judgment as a matter of law. Ivy v. Merchant, 666 So. 2d 445, 448 (Miss. 1995). 11

ISSUE II Plaintiff then argues that the Trial Court s denial of his Motion for Reconsideration or in the Alternative, Rehearing is in error. Despite Plaintiff s urging, the Trial Court did not find that McGee s Answer alone was sufficient proof of the allegations raised in its Motion for Summary Judgment. Instead, the admission of McGee in his Answer combined with his sworn Interrogatory response and the sworn verified pleadings signed by the Plaintiff and his then wife regarding legal cause of their separation and divorce, was sufficient to shift the burden to the Plaintiff, as the party with the burden of proof, to present probative evidence regarding the third prong of alienation of affection, causation. Plaintiff ignored the Court s specific reference to paragraph 4 of McGee s Motion for Summary Judgment specifically referencing the lack of causal connection between any alleged conduct on McGee s part and any alleged loss of consortium or alienation of affection claimed by the Plaintiff. Additionally, McGee specifically stated that the Defendant lacks proof of the element of causation as required under Mississippi law in his motion. The Court went on further to state that the allegations in the Motion specifically referenced the exhibits to the Motion (Transcript Pp. P59-60). The Court closed by stating that since there was no proof presented by the Plaintiff in regard to one of the very essential elements of the cause of action of alienation of affection and because there is no response by the Plaintiff to that very succinct and important issue to be resolved by this Court, the Court is going to find that the Motion to Reconsider will be overruled. (Transcript Pp. 60-61). Plaintiff continues to argue in Issue II of his Summary of Argument that his exhibits to the Motion for Reconsideration or Rehearing in discovery documents disprove the unsupported claim of the Appellee (McGee). As previously stated, Plaintiff attached 391 pages of phone 12

records without any supporting affidavit or testimony of any proper sponsoring witness. Additionally, Plaintiff attached self serving copies of emails, receipt logs, and made other references to alleged phone calls between McGee and Plaintiff s then wife. However, none of the allegations, documents or any other exhibits attached to the Motion for Reconsideration or Rehearing are evidence under Mississippi law and obviously, were not considered by the Court. It has been a longstanding rule in this State that summary judgment tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact. Doss v. Dixon, 131 So. 3d 1265, 1269 (Miss. App. 2014). As stated therein, Miss. R. Civ. P. 56(c) provides that summary judgment shall be rendered for the moving party if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Additionally, Miss. R. Civ. P. 56(e) provides cautionary instruction that if the non-moving party fails to respond, summary judgment, if appropriate, shall be entered against the non-moving party. Rule 56, Ms. R. Civ. Pro. See also Stuckey v. Provident Bank, 912 So, 2d 859, 867 (Miss. 2005). Quite simply, Plaintiff presented no probative evidence in response to McGee s substantial showing that there was no proof of causation, a necessary element of Plaintiff s claim. 13

ARGUMENT ISSUE I: WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT S MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THE PLAINTIFF FAILED TO ADEQUATELY RESPOND THERETO. McGee agrees that the standard of review for a Trial Court s grant of summary judgment is de novo. Miller v. Meeks, 762 So. 2d. 302, 304 (Miss. 2000). However, it is disputed that the applicable summary judgment standard stated in Plaintiff s argument is the correct one to be applied in this case. Specifically, Billy McGee, as the Defendant in the underlying action, did not have the burden of proof of any of the elements of alienation of affection. Accordingly, McGee, as the movant for summary judgment need only present some evidence showing that proof of an essential element of the non-moving party s claim is absent. Palmer v. Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, 1356 (Miss. 1990). Upon being presented with such evidence, the non-moving party then has a duty to make a showing sufficient to establish each and every essential element of their claim. All other facts are immaterial and if the non-moving party does not come forth with probative proof of each element of its claim, the moving party is entitled to judgment as a matter of law. Ivy v. Merchant, 666 So. 2d 445, 448 (Miss. 1995). Palmer, 1356. Plaintiff admits that the elements of alienation of affection are straightforward and consist of three separate elements as follows: (1) wrongful conduct of the Defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss. Fitch v. Valentine, 959 So. 2d 1012, 1025 (Miss. 2007). Just as he did at the Trial Court level, Plaintiff ignores his own burden of proof and instead, seeks to attack the proof presented by Billy McGee. Plaintiff ignored McGee s admission in his Answer (Rec. Ex. 0014); his sworn Interrogatory response (Rec. Ex. 0683); and 14

the verified and sworn pleadings signed by the Plaintiff and his then wife in Perry County Chancery Court in the divorce proceeding wherein the Plaintiff specifically admits that his claim for a divorce is not predicated on fault grounds of adultery but instead, is predicated solely on the statutory grounds of irreconcilable differences existing which irreparably harmed the marriage and caused the separation of the parties on July 12, 2013. (Rec. Ex. 0073, 0103). Instead, Plaintiff continues to argue that McGee only raised a statement in his Answer and nothing else. (See Appellant s Brief P. 13). Again, just as he did in response to the summary judgment motion, the Plaintiff states that the various exhibits presented in support of McGee s Motion for Summary Judgment were gauged to support arguments of issue preclusion and judicial estoppel. Granted, McGee has filed a Cross-Appeal stating that the summary judgment should, or at the very least could have been granted on the grounds of judicial estoppel however, that argument will be saved for the section of this brief in support of the Cross-Appeal. McGee s foundational argument was lack of proof of causation. Plaintiff then argues that no affidavits, depositions, discovery materials, or other proof beyond the blanket refutation in the Answer were offered. This is simply incorrect. The case law is clear that the Trial Court should consider the pleadings, depositions, sworn discovery material, and affidavits, if any in support of motions for summary judgment. Palmer at 1356. The pleadings in this case clearly show that McGee admitted that an affair had occurred following the parties separation but denied the element of causation between this alleged conduct and any damages claimed by the Plaintiff. (Rec. Ex. 0014). Additionally, the sworn Interrogatory responses of McGee show that the only proof in the record of any contact between Plaintiffs ex-wife and McGee occurred in October of 2013, many months after the separation date of July 12, 2013, as sworn by the Plaintiff and his then wife as being the date that they separated due solely to irreconcilable differences existing 15

between the parties which made the marriage irretrievably broken. (Rec. Ex. 0681-0687 as to Interrogatory responses) and (Rec. Ex. 0103-0104, as to the sworn statement regarding reason for separation of Plaintiff and his then wife). Clearly, admission in the pleading, sworn Interrogatory responses and sworn Chancery Court pleadings filed by the Plaintiff in this action, were enough to sustain McGee s burden of establishing that the Plaintiff was unable to prove the necessary and required element of causation. See also Brown vs. McQuinn, 501 So. 2d 1093, 1095 (Miss. 1986) as cited in Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988). See also Palmer v. Biloxi Regional Medical Center, 564 So. 2d 1346, 1356 (Miss. 1990). Thereafter, as previously stated, it is incumbent upon the Plaintiff to come forth with probative proof of his ability to establish a genuine issue of material fact regarding the element of causation. No such proof exist in the record and in fact, the only attempt made by Plaintiff to submit any documents whatsoever were the hundreds of pages attached to the Plaintiff s Motion for Reconsideration filed only after the Court had already ruled on the summary judgment of McGee. None of these documents were timely; nor were they attached to any sworn affidavit based upon the personal knowledge of the affiant; nor were they properly presented as sponsored through the appropriate sponsoring witness and as such, none had any probative value and were not evidence as required by law. The Plaintiff never filed or served sworn answers to Interrogatories propounded by the Defendant (only unsworn Interrogatory responses were ever served). This is not enough to defeat McGee s Motion for Summary Judgment pursuant to Miss. R. Civ. P. 56(e) of the Mississippi Rules of Civil Procedure. Scales v. Lackey Memorial Hospital, 988 So. 2d 426, 434 (Miss. Ct. App. 2008). Plaintiff next attempts to argue that evidence on the record establishes a clear issue of fact as to Appellee s relationship with Appellant s wife. In response to this argument, McGee 16

would simply state that by admission, none of the exhibits were before the Court until Plaintiff filed his Motion for Reconsideration or Rehearing (and even then they weren t probative evidence). Additionally, Plaintiff admits that only discovery materials received pursuant to subpoena were attached and even though Plaintiff references sworn statements, there were no sworn statements, only self serving emails between McGee s wife and the Plaintiff which were blatant hearsay. None of the documents (hundreds and hundreds of pages) were properly served or filed in compliance with Miss. R. Civ. P. 59(e) as none of the same were new evidence. All of these documents were in Plaintiff s possession prior to the original Motion hearing on the summary judgment filed by McGee however, none were provided to the Court through affidavit, sponsoring witness or under oath as required. Accordingly, Plaintiff s alleged reliance on these documents as demonstrating a basis in fact for a causal link between any alleged wrongful acts of McGee and Plaintiffs loss of his wife s affection and consortium is mislaid at best. Likewise, so is Plaintiff s request for a de novo review of the record, as clearly there is no probative evidence contained in the record that supports Plaintiff s position. In conclusion, McGee would state that his Motion for Summary Judgment, the Memorandum in Support thereof and the Itemization of Facts Not in Dispute basically, all went without response, denial or service and filing of any probative evidence in support of Plaintiff s claim of causation, a necessary element of his claim for alienation of affection under Mississippi law. There was no response whatsoever filed to the Itemization of Facts Not in Dispute. There was only a Memorandum Brief filed in response to the Motion for Summary Judgment by the Plaintiff and the Memorandum Brief focused only on the arguments regarding issue preclusion and judicial estoppel. Plaintiff failed to present any evidence showing proof of the essential element of causation between any alleged conduct on behalf of McGee and any damages claimed 17

by the Plaintiff. Plaintiff never filed any sworn Interrogatory responses in this matter, never presented the Court with any sworn affidavits based upon the personal knowledge of the affiant thereon and never provided any appropriate sponsoring witnesses testimony or deposition testimony to support any documents. In fact, Plaintiff presented no document whatsoever until after the ruling on the Summary Judgment Motion was received and only in support of Plaintiff s Motion for Reconsideration of the Court s grant of summary judgment in favor of McGee. Accordingly, the Court s grant of summary judgment in favor of Billy McGee should be affirmed. ISSUE II: WHETHER THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF S MOTION FOR RECONSIDERATION Before the Lower Court, Plaintiff argued that a mistake of law has been made in the grant of the Motion for Summary Judgment. (Transcript of Proceedings, Page 55). In support of this position, Plaintiff again ignores the sworn Interrogatory responses of McGee and the sworn pleadings filed by the Plaintiff and his then wife in their divorce proceeding and instead, informs the Court that there is no support for McGee s Motion for Summary Judgment other than the allegations in the answer. Further, Plaintiff argues that failure to permit the matter to proceed to trial constituted manifest injustice and references overwhelming evidence on the record for each of the elements of alienation of affection. As previously shown to this Court, the record in this case does not reflect any probative evidence whatsoever that could have been considered by the Trial Court. In fact, even the reams of documents Plaintiff attached to his motion pursuant to Miss. R. Civ. P. 59(e) are not in evidence. In the absence of any probative evidence, Plaintiff only made arguments to the Trial Court regarding what the proof would show and other assertions in his Memorandum Brief and response. Clearly this is not enough. To withstand summary 18

judgment, the party opposing the Motion must present sufficient proof to establish each element of each claim. Scales v. Lackey Memorial Hospital, 988 So. 2d 426, 431 (Miss. App. 2008). Citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 684 (Miss. 1987). Specifically, the Plaintiff may not rely solely upon the unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. Id. Citing Palmer v. Biloxi Regional Med. Ctr., 564 So. 2d 1346, 1356 (Miss. 1990). As previously stated, When a party opposing summary judgment on a claim where defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law. Scales at 431. Citing Galloway, 515 So. 2d at 684. Plaintiff s Motion for Reconsideration is nothing more than an attempt to re-litigate the earlier Motion for Summary Judgment and therefore was properly denied. Trotter v. State, 907 So. 2d 397, 403 (Miss. Ct. App. 2005). The Trial Court was clearly within its discretion to deny Plaintiff s Motion and to find that there was no grounds for any alteration or amendment of the judgment previously granted in favor of McGee. Accordingly, the Trial Court s decision should be affirmed. CONCLUSION Plaintiff argues that the Trial Court had no basis to grant summary judgment in favor of McGee and once again, in advancing this argument, relies upon the statement that McGee only submitted his answer to support his argument that there was no proof of causation presented in the record. As previously stated, in making this argument, Plaintiff continues to ignore the sworn Interrogatory responses of McGee as well as the sworn pleadings of Plaintiff and his then wife filed in their Chancery Court divorce proceeding. 19

Plaintiff also argues that there is some evidence in the record that supports Plaintiff s claim that any wrongful conduct of McGee caused his alleged loss of consortium and alienation of affections. As shown above, the record before the Trial Judge showed no evidence or probative proof whatsoever of the required element of causation. Even after Plaintiff attached hundreds of pages of documents to his Motion for Reconsideration, this untimely attempt did not present any proof in the record. No sworn discovery responses, deposition testimony, affidavit or testimony of any sponsoring witness of any of the documents was ever presented to the Trial Court. Accordingly, even though Plaintiff is entitled to a de novo review of the Trial Court s grant of summary judgment in this matter, this Court also is limited to the proof before it and the probative evidence that can be found in the record. McGee would submit that there is none in support of Plaintiff s argument and accordingly, the judgment of the Trial Court should be affirmed and all costs taxed to the Plaintiff. 20

STATEMENT OF THE ISSUE ON CROSS-APPEAL I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BILLY McGEE ON THE ADDITIONAL GROUNDS OF JUDICIAL ESTOPPEL 21

CROSS-APPEAL OF APPELLEE/CROSS-APPELLANT STATEMENT OF THE CASE ON CROSS APPEAL As has been previously stated, Billy McGee is of the opinion that the ruling of the Trial Court in granting his Motion for Summary Judgment was a correct one. However, out of an abundance of caution, after this appeal was perfected by the Plaintiff, David Michael Lyon, Jr., McGee cross-appealed to preserve his earlier argument that he was entitled to summary judgment on the separate grounds of the Doctrine of Judicial Estoppel. For the Court s reference, a time line of events is relevant to McGee s argument in this regard. On July 22, 2013 Plaintiff, David Michael Lyon, Jr., was sued for divorce by his then wife, Emma Robin Lyon, on the grounds of habitual cruel and inhuman treatment or in the alternative, irreconcilable differences pursuant to Mississippi Statute. She also alleged in that sworn pleading that the parties finally separated on July 12, 2013. (Rec. Ex. 0062-0072). In response to this Complaint, the Plaintiff herein filed a general denial. Thereafter, in approximately October or November of 2013, Plaintiff discovered his wife was having an affair with Billy McGee. Plaintiff amended his response and counterclaimed against Emma Robin Lyon on the grounds of adultery pursuant to Mississippi Statute. Following this, in June of 2014, Plaintiff withdrew his fault grounds and entered into a sworn Child Custody, Support and Property Settlement Agreement with Emma Robin Lyon, wherein they both swore that irreconcilable differences have arisen between Robin and Mickey resulting in the parties having heretofore separated on the 12 th day of July, 2013, and that divorce was inevitable. (Rec. Ex. 0073-0090). The sworn Child Custody, Support and Property Settlement Agreement was incorporated into the Final Judgment of Divorce granted by the Chancery Court of Perry County, Mississippi, in June, 2014. Following the entry of that judgment, on October 3, 2014, the Plaintiff, David Michael Lyon, Jr., filed his alienation of 22

affection case against Billy McGee. (Rec. Ex. 0010-0013). An Answer was filed by McGee on November 7, 2014, denying any causal connection between any relationship between McGee and Emma Robin Lyon and Plaintiff s alleged loss of affections and consortium. (Rec. Ex. 0014-0028). Following discovery being conducted in the alienation of affection case and prior to the trial, McGee moved for summary judgment relying upon his admission in his Answer to the Complaint, his sworn answers to Interrogatories and relying upon the sworn pleadings filed by the Plaintiff and Emma Robin Lyon in their divorce in Perry County Chancery Court. McGee argued that Plaintiff had no proof that any conduct on behalf of McGee that occurred with Plaintiff s former wife, had any causal relation to any alleged loss of consortium or affections between the Plaintiff and Emma Robin Lyon. Additionally, McGee argued that the cause of the divorce as judicially determined by the Chancery Court of Perry County was based upon the sworn statements in the Court file of the Plaintiff and Emma Robin Lyon. Accordingly, McGee also included in his Motion for Summary Judgment and his argument contained in his Memorandum in Support thereof, the grounds of issue preclusion and judicial estoppel. The Plaintiff admitted in his deposition that he withdrew his fault grounds against Robin upon the advice of counsel and in order to secure financial advantage in his property settlement. He admitted that he signed sworn papers stating that instead of adultery, irreconcilable differences between he and Robin had caused their marriage to be impossible to continue and had caused their final separation on July 12, 2013. (Rec. Ex. 0103-0104). This position taken under the oath of the Plaintiff was markedly different than the claims asserted in his Complaint for alienation of affection against Billy McGee. (Rec. Ex. 0010-0013). Accordingly, the proof was clear that David Michael Lyon, Jr., was now taking a position clearly inconsistent with the one previously taken in the Perry County 23

Chancery Court; and that was relied upon by the Court in granting the divorce on the statutory grounds of irreconcilable differences and wherein the sworn pleadings of the Plaintiff and his then wife were incorporated into the Final Judgment of Divorce. Additionally, it was clear from the proof that the radical change in position was not inadvertent on the part of the Plaintiff, due to his admission in his deposition that he had taken the sworn position in his Chancery Court matter for financial benefit but was now suing McGee for a civil judgment in the sum of $1,000,000.00 as actual damages and $4,000,0000.00 as punitive damages... (Rec. Ex.0013). The Trial Court received the arguments of McGee on lack of causation, issue preclusion and on judicial estoppel however instead of relying upon this theory as a basis for summary judgment, the Court granted the same for Plaintiff s failure to come forth with probative evidence proving causation, one of the required elements of his cause of action for alienation of affections against McGee. This Cross-Appeal for the Trial Court s failure to grant summary judgment on the grounds of judicial estoppel, as previously stated, is asserted out of an abundance of caution. Accordingly, should this Court find for any reason that McGee was not entitled to a summary judgment in his favor for Plaintiff s failure to provide any probative evidence of the element of causation, then McGee should be entitled to summary judgment under the Doctrine of Judicial Estoppel in order to prevent Plaintiff from achieving unfair advantage by taking inconsistent positions in litigation. ARGUMENT I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BILLY McGEE ON THE ADDITIONAL GROUNDS OF JUDICIAL ESTOPPEL The standard for review of a Trial Court s grant or denial of the application of judicial estoppel has been stated to be abuse of discretion even when using the de novo standard to 24

determine whether summary judgment was or was not appropriate. Adams v. Graceland Care Ctr. of Oxford, LLC, 208 So. 3d 575 ( 7-8) (Miss. 2013). In the appeal presently before the Court, the Court will make a de novo review of the entire record. Accordingly, in that review, the inconsistent positions taken by David Michael Lyon, Jr., in his sworn pleadings before the Chancery Court of Perry County, Mississippi (Rec. Ex. 0073-0090), and the reason for the same in accordance with his sworn testimony (Rec. Ex. 0103-0104) can be compared to the position taken by him in the Complaint filed in the Trial Court. (Rec. Ex. 0010-0013). Clearly these positions are inconsistent and are intended to allow David Michael Lyon, Jr., to achieve unfair advantage by taking these inconsistent positions, both for the financial (or potential financial) benefit of David Michael Lyon, Jr. To allow Plaintiff to make sworn representations to the Perry County Chancery Court in order to secure a divorce and financial advantage from taking this position and then, to come before the Trial Court claiming that the cause of his divorce was some intentional interference in that relationship by Billy McGee is an abuse of the judicial system. The Doctrine of Judicial Estoppel should be applied to prevent a party from achieving unfair advantage by taking inconsistent positions in litigation. Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. In order to protect he integrity of the judiciary, judicial estoppel must be invoked in the Court in which the apparent self-serving contradiction occurred and in which the defense is first asserted. There are three requirements for judicial estoppel: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the Court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent. 25

Copiah County vs. Oliver, 51 S. 3d 205, 207 (Miss. 2011); citing Kirk v. Pope, 973 So. 2d 981, 991 (Miss. 2007). Plaintiff argued to the Trial Court that the Doctrine of Judicial Estoppel was inapplicable because the same parties had to be involved in both litigated matters in order for the doctrine to be applicable. Additionally, the Plaintiff argued that Wood v. Cooley was applicable which was an alienation of affection claim, in reliance upon its position that judicial estoppel was inapplicable to such claims. (See Plaintiff s Memorandum in Opposition to Motion for Summary Judgment, Rec. Ex. 0093-0094). Wood v. Cooley, 78 So. 3d 920 (Miss. 2011), is clearly not controlling and should not have been argued to the Court. The adverse-party requirement that was thought to be a part of the judicial estoppel application was clearly eliminated in Kirk v. Pope, 973 So. 2d 981, 991 (Miss. 2007). Additionally, the Mississippi Supreme Court made it abundantly clear when it stated: Accordingly, we take this opportunity to clarify that our opinion in Kirk eliminated the adverse-party requirement and overruled our prior judicial-estoppel opinions insofar as they included such a requirement. The purpose of judicial estoppel is to prevent parties from knowingly taking a position in one Court that is contrary to a position that party has asserted in, and that has been accepted by, another Court. This purpose is served regardless of whether the inconsistent positions were taken in opposition to the same party. Clark vs. Neese, 131 So. 3d 556, 561-562 (Miss. 2013). Accordingly, there is no adverse-party requirement and under the facts of the present case, judicial estoppel clearly would be applicable and this doctrine would, upon its application, prevent David Michael Lyon, Jr., from achieving unfair advantage by taking such inconsistent positions. He should not be allowed to swear that his marriage was irretrievably broken due to irreconcilable differences as defined by Mississippi Statutory Law in the Chancery Court of Perry County, Mississippi, solely to secure a material or financial advantage in his divorce resolution and then come before the Trial Court in this matter claiming that the actions of Billy McGee 26

caused him to lose the consortium of his then wife and to have alienated her affections from him. CONCLUSION In the event that this reviewing Court should for any reason determine that the Trial Court s grant of summary judgment in favor of Billy McGee was not warranted on the grounds of David Michael Lyon, Jr. s failure to provide any probative evidence of causation, a required element of his claim for alienation of affection against Billy McGee; then Billy McGee would request that this reviewing Court affirm summary judgment upon application of the Doctrine of Judicial Estoppel to this alienation of affections case. 27

CERTIFICATE OF SERVICE I, Patrick H. Zachary, attorney for the Appellee/Cross-Appellant, do hereby certify that I have this date filed the Brief of Appellee/Cross-Appellant via MEC, and have thereby provided an electronic copy to the following: Clerk of Appellate Courts PO Box 249 Jackson, MS 39205 (Via MEC filing) Hon. L. Breland Hilburn (Via MEC filing) Hon. Phillip Londeree (Via MEC filing) This the 22 nd day of March, A.D., 2017. /s/ Patrick H. Zachary PATRICK H. ZACHARY (MSB NO. 6674) 28