                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2005-IA-00593-SCT

CHILDREN’S MEDICAL GROUP, P. A.

v.

ROBERT PHILLIPS, INDIVIDUALLY AND AS NEXT
FRIEND AND NATURAL GUARDIAN OF TANNER
WADE PHILLIPS AND GRANT RUSSELL PHILLIPS,
MINORS

DATE OF JUDGMENT:                          03/08/2005
TRIAL JUDGE:                               HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JOHN L. LOW
                                           MILDRED M. MORRIS
ATTORNEYS FOR APPELLEE:                    CHUCK McRAE
                                           WILLIAM B. KIRKSEY
                                           MINOR F. BUCHANAN
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED IN PART; REVERSED AND
                                           REMANDED IN PART - 10/26/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    A husband claims in a lawsuit that the medical clinic employing his wife recklessly

allowed her and a coworker to engage in an extramarital affair in the workplace and,

therefore, is liable to him for alienation of affections. The husband alternatively claims the

employer is vicariously liable for its employee’s actions. The question presented is whether

either claim can survive a motion to dismiss under Mississippi Rule of Civil Procedure

12(b)(6).
                      BACKGROUND FACTS AND PROCEEDINGS

¶2.    Robert and Julie Phillips divorced in September 2004. Prior to the divorce, Robert

alleges that he discovered Julie was having an affair with Dr. Erwyn E. Freeman, Jr., who

was Julie’s coworker at Children’s Medical Group, P.A. (“CMG”). Robert sued Dr.

Freeman 1 and CMG,2 claiming both were liable for alienating Julie’s affections for him.3

According to Robert’s complaint, CMG “knew of and negligently and recklessly allowed the

illicit relationship between the Defendant, Erwyn E. Freeman, Jr., and its employee, Julie

Rawson Phillips, to be carried on while employed with said Defendant at its office and

elsewhere.”

¶3.    CMG filed a Rule 12(b)(6) motion to dismiss claiming Robert’s complaint failed to

state a claim upon which relief could be granted. Specifically, CMG argued (1) the tort of

alienation of affections requires intentional acts of misconduct, and Robert failed to allege

any intentional conduct by CMG; (2) CMG owed no duty to Robert to prevent Dr. Freeman

from pursuing a consensual affair with another employee; and (3) CMG was not vicariously

liable for its employees’ consensual sexual relationships, as those activities were beyond the

employees’ course and scope of employment.


       1
           Robert’s claims against Dr. Freeman are not at issue in this appeal.
       2
           Robert also sued both defendants as next friend of his two minor children.
       3
          In Bland v. Hill, 735 So. 2d 414, 418 (Miss. 1999), we declined to abolish the common law
tort of alienation of affections. However, then Justice Chuck McRae, now one of Robert’s counsel,
passionately argued for the elimination of this cause of action in his opinion in Bland. Justice
McRae opined, “[t]he alienation suit is an anachronism which we would do well to rid ourselves of.
A wealth of experience has demonstrated that these lawsuits do much more harm to society than
good. Our courts should not be in the business of policing broken hearts.” Id. at 427 (McRae, J.,
concurring in part and dissenting in part) (footnote omitted).

                                                  2
¶4.    The trial court denied CMG’s motion to dismiss. CMG then sought an interlocutory

appeal, which we granted. See M.R.A.P. 5.

                                        DISCUSSION

¶5.    A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim. Stuckey v.

Provident Bank, 912 So. 2d 859, 865 (Miss. 2005). Therefore, we review de novo the denial

of a motion to dismiss for failure to state a claim. Webb v. DeSoto County, 843 So. 2d 682,

684 (Miss. 2003). In order to reverse, “it must be such that no set of facts would entitle the

opposing party to relief.” Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss.

2006); see also M.R.C.P. 12(b)(6) cmt. (to grant a Rule 12(b)(6) motion to dismiss, “there

must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that

could be proved in support of the claim”) (emphasis added).

       I.       Whether the trial court erred in denying CMG’s motion to dismiss
                for failure to state a claim based on CMG’s own conduct.

¶6.    According to Robert’s complaint, CMG committed the common law tort of alienation

of affections by “kn[owing] of and negligently and recklessly allow[ing] the illicit

relationship between the Defendant, Erwyn E. Freeman, Jr., and its employee, Julie Rawson

Phillips, to be carried on while employed with said Defendant at its office and elsewhere.”

In order to reverse the trial court’s denial of CMG’s Rule 12(b)(6) motion to dismiss, we

must be able to say, with certainty, that Robert cannot prove any set of facts to support his

claim. See Little v. Miss. Dep’t of Human Servs., 835 So. 2d 9, 11 (Miss. 2002); M.R.C.P.

12(b)(6) cmt.




                                                3
¶7.    There is a vast difference between the pleading burden necessary to survive a Rule

12(b)(6) motion to dismiss and the evidentiary requirements necessary to survive a motion

for summary judgment under Mississippi Rule of Civil Procedure 56. A motion to dismiss

under Rule 12(b)(6), as opposed to other devices in civil law, contemplates a high degree of

speculation by the reviewing court. In Stuckey, we explained the differences between Rule

12 and Rule 56:

       While the two rules provide for dismissal of actions, their bases are completely
       different. Accordingly, a Rule 12(b)(6) motion tests legal sufficiency, and in
       applying this rule ‘a motion to dismiss should not be granted unless it appears
       beyond a reasonable doubt that the plaintiff will be unable to prove any set of
       facts in support of the claim.’ Missala Marine Services, Inc. v. Odom, 861 So.
       2d 290, 294 (Miss. 2003). Quite differently, Rule 56 tests the notion of well-
       pled facts and requires a party to present probative evidence demonstrating
       triable issues of fact.

Stuckey, 912 So. 2d at 865-66. Our inquiry on a Rule 12(b)(6) motion to dismiss is not

limited to the specific allegations in Robert’s complaint, which we must accept as true.

Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 966 (Miss. 2003). We are charged

to consider only whether any set of facts could support Robert’s action for alienation of

affections against CMG. Cook v. Brown, 909 So. 2d 1075, 1078 (Miss. 2005).

¶8.    According to this Court’s opinion in Walter v. Wilson, 228 So. 2d 597, 598 (Miss.

1969), overruled in part on other grounds by Saunders v. Alford, 607 So. 2d 1214, 1219

(Miss. 1992), “[u]nder the common law a husband is entitled to the services and

companionship and consortium of his wife. When he is wrongfully deprived of these rights,

he is entitled to a cause of action against one who has interfered with his domestic relations.”

The required elements of an alienation of affections lawsuit include (1) wrongful conduct of


                                               4
the defendant, (2) loss of affection or consortium, and (3) a causal connection between the

conduct and the loss. Bland v Hill, 735 So. 2d 414, 417 (Miss. 1999).

¶9.    The “wrongful” conduct necessary to maintain an action for alienation of affections

is the direct and intentional interference with the marriage relationship by the defendant. In

Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932), the Court held that:

       it must appear . . . that there had been a direct interference on the defendant's
       part, sufficient to satisfy the jury that the alienation was caused by the
       defendant, and the burden of proof is on the plaintiff to show such
       interference. . . . But to maintain this action it must be established that the
       husband was induced to abandon the wife by some active interference on the
       part of the defendant.

(internal citations omitted; emphasis added). See also Kirk v. Koch, 607 So. 2d 1220, 1223

(Miss. 1992) (defendant “directly and intentionally interfered with” plaintiff’s marriage,

inducing the alienation of affections); Martin v. Ill. Cent. R.R., 246 Miss. 102, 110-11, 149

So. 2d 344, 348 (1963) (same).

¶10.   It is true that Robert fails to specify CMG’s conduct that directly and intentionally

interfered with his marriage. However, under our rules, Robert is not required to plead the

specific wrongful conduct. At the pleading stage, he is required only to place CMG on

reasonable notice of the claims against it and to demonstrate that he has alleged a recognized

cause of action upon which, under some set of facts, he might prevail. Consequently, in order

to succeed in having this case dismissed pursuant to Rule 12(b)(6), CMG must demonstrate

that Robert cannot prevail under any set of facts. This is the analysis we must apply. See

Ralph Walker, Inc., 926 So. 2d at 893; Cook, 909 So. 2d at 1078; Poindexter, 838 So. 2d

at 966; Little, 835 So. 2d at 11.


                                              5
¶11.   We are unable to say, as a matter of law, that there are no possible facts which could

result in CMG’s liability for alienation of affections. Accordingly, we affirm the trial court’s

denial of CMG’s motion to dismiss for failure to state a claim insofar as Robert alleges CMG

committed the tort of alienation of affections based on its own actions.

       II.     Whether the trial court erred in denying CMG’s motion to dismiss
               for failure to state a claim based on the theory of vicarious liability
               for CMG’s employee’s actions.

¶12.   In its motion to dismiss, CMG argues that Robert cannot be granted relief against it

based on the theory of vicarious liability. The trial court found that a jury should determine

whether Dr. Freeman’s actions were within the course and scope of his employment, such

that Robert could maintain a claim for vicarious liability against CMG. Although these

determinations can be highly fact sensitive, some actions are so clearly beyond an employee’s

course and scope of employment that they cannot form the basis for a claim of vicarious

liability, as a matter of law.

¶13.   “Under the doctrine of respondeat superior, the master is liable for the acts of his

servant which are done in the course of his employment and in furtherance of the master’s

business.” Sandifer Oil Co. v. Dew, 220 Miss. 609, 630, 71 So. 2d 752, 758 (1954). Under

Section 228 of the Restatement (Second) of Agency:

       (1)     Conduct of a servant is within the scope of employment if, but only if:

               (a)    it is of the kind he is employed to perform;
               (b)    it occurs substantially within the authorized time and
                      space limits;
               (c)    it is actuated, at least in part, by a purpose to serve the
                      master, and



                                               6
              (d)    if force is intentionally used by the servant against
                     another, the use of force is not unexpectable by the
                     master.

       (2)    Conduct of a servant is not within the scope of employment if it is
              different in kind from that authorized, far beyond the authorized time
              or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228 (1958); see also Commercial Bank v. Hearn, 923

So. 2d 202, 208 (Miss. 2006). If an employee “deviates or departs from his work to

accomplish some purpose of his own not connected with his employment – goes on a ‘frolic

of his own’ – the relation of master and servant is thereby temporarily suspended,” and the

employer is not vicariously liable. Seedkem S., Inc. v. Lee, 391 So. 2d 990, 995 (Miss.

1980) (citations omitted). See also Mabus v. St. James Episcopal Church, 884 So. 2d 747,

756 (Miss. 2004) (as a matter of law, church not vicariously liable for priest’s surreptitious

taping of counseling session with parishioner); Gulledge v. Shaw, 880 So. 2d 288, 295 (Miss.

2004) (as a matter of law, bank not vicariously liable for employee’s knowing notarization

of forged signature); Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159 (Miss. 2002)

(as a matter of law, theater not vicariously liable for assault on movie patron).

¶14.   In Cockrell v. Pearl River Valley Water Supply District, 865 So. 2d 357, 362 (Miss.

2004), this Court held that a law enforcement officer was outside the scope of his

employment when he made romantic advances toward an arrestee. In L.T. v. City of

Jackson, 145 F. Supp. 2d 750, 757 (S.D. Miss. 2000), the district court found that a security

guard who stopped the female plaintiff in his capacity as a city police officer and had sex




                                              7
with the woman in exchange for letting her go with a warning was acting outside the course

and scope of his employment.

¶15.   Other jurisdictions have specifically found that an employee’s affair with a coworker

is beyond the course and scope of employment. In Jackson v. Righter, 891 P.2d 1387, 1390

(Utah 1995), the Utah Supreme Court considered a situation in which a jilted husband sued

the employer of his wife’s paramour. The court found that the employee’s romantic advances

were “so clearly outside the scope of his employment that reasonable minds cannot differ.”

Id. at 1391. See also Mercier v. Daniels, 533 S.E.2d 877, 881 (N.C. Ct. App. 2000) (no

vicarious liability where workplace affair in no way furthered the business of the employer).

¶16.   The question we must consider is whether Robert can prove any set of facts showing

Dr. Freeman’s alleged consensual sexual relationship with Robert’s wife was within the

course and scope of his employment with CMG. We find no such showing can be made.

The comment to Section 228 of the Restatement (Second) of Agency explains that “not all

physical acts of the kind authorized performed within the time and at the place of service are

within the scope of employment, since only those which the servant does in some part for the

purpose of giving service to the master are included.” Restatement (Second) of Agency §

228 cmt. a (emphasis added). It defies reason to argue that engaging in an affair at work or

during working hours in any way furthered the business interests of CMG or enhanced the

medical care of CMG’s pediatric patients.

¶17.   The trial court erred as a matter of law in finding that a claim was stated as to whether

Dr. Freeman, in having an alleged consensual affair with a coworker, was acting within the



                                               8
course and scope of his employment with CMG. Robert can prove no set of facts that would

entitle him to recover against CMG under a theory of vicarious liability. Therefore, we find

the trial court should have granted CMG’s Rule 12(b)(6) motion to dismiss this theory.

                                       CONCLUSION

¶18.   We affirm the trial court’s denial of CMG’s motion to dismiss with respect to Robert’s

claim that CMG committed the tort of alienation of affections. Robert is entitled to the

opportunity to conduct discovery and present facts that demonstrate when and how CMG

committed the tort. Whether Robert demonstrates that triable issues of material fact exist for

a jury’s consideration is a question for another day.

¶19.   We reverse the trial court’s denial of CMG’s motion to dismiss on the theory of

vicarious liability. This case is remanded to the trial court for further proceedings consistent

with this opinion.

¶20.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

    DIAZ, EASLEY AND RANDOLPH, JJ., AND BARRY, S.J., CONCUR.
PARKER S.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION. SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND
GRAVES, JJ., NOT PARTICIPATING.

     EUGENE PARKER, JR., SPECIAL JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶21.   I concur with that part of the majority’s opinion designated Issue II and would reverse

the trial court upon the issue of vicarious liability. Aside from my belief that the antiquated

cause of action of alienation of affections should be abolished out right, I respectfully dissent

as to Issue I, “whether the trial court erred in denying CMG’s motion to dismiss for failure



                                               9
to state a claim based on CMG’s own conduct,” and would reverse the trial court on this

issue. The reasons therefor are varied and multiple.

¶22.   Historically, this Court has distinguished the requisite elements of the cause of action

between first-party participants (the paramours) versus third-party participants, such as a

parent of one of the parties or an employer. In the former case, direct interference by the

defendant is required. Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932). But in the latter

case, the Court has required a showing of malice. See Tucker v. Tucker, 74 Miss. 93, 19 So.

955 (1896). All Mississippi cases have required the familiar elements of this tort to coexist,

i.e., (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a

causal connection between the conduct and the loss. Bland v. Hill, 735 So. 2d 414, 417

(Miss. 1999).

¶23.   In the present case, the complaint alleges that CMG “knew of and negligently and

recklessly allowed the illicit relationship . . . .” (Emphasis added). In my view, the plaintiff

has pleaded himself out of court, as respects CMG, as he asserts that CMG “allowed the

illicit relationship . . . .” To “allow” in its common usage, and as defined according to Mr.

Webster, means “to let do or happen: permit.” Webster’s II New College Dictionary 30

(Rev. ed. 2001). To “allow” is a passive omission (not an action at all), whereas all case law

requires an active intentional interference of the marital relationship. See Kirk v. Koch, 607

So. 2d 1220 (Miss. 1992); Gorman v. McMahon, 792 So. 2d 307 (Miss. Ct. App. 2001).

Where in the law is there a stated duty of an employer not to “allow” fornication or even




                                              10
adultery between co-employees? To what measure(s) or expense would the employer be

exposed not to “allow” this to occur on or off its premises?

¶24.   In my humble view, the majority opinion unnecessarily expands the range of potential

defendants to this medieval cause of action, whose only excuse for existence is the antiquity

of its ancestry. I respectfully dissent.




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