        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CA-00637-COA

DAVID MICHAEL LYON JR.                                        APPELLANT/CROSS-
                                                                     APPELLEE

v.

BILLY MCGEE                                                     APPELLEE/CROSS-
                                                                     APPELLANT

DATE OF JUDGMENT:                       03/01/2016
TRIAL JUDGE:                            HON. L. BRELAND HILBURN
COURT FROM WHICH APPEALED:              FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 PHILLIP LLOYD LONDEREE
ATTORNEY FOR APPELLEE:                  PATRICK H. ZACHARY
NATURE OF THE CASE:                     CIVIL - TORTS - OTHER THAN PERSONAL
                                        INJURY AND PROPERTY DAMAGE
DISPOSITION:                            ON DIRECT APPEAL: AFFIRMED; ON
                                        CROSS-APPEAL: AFFIRMED - 01/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

      BARNES, J., FOR THE COURT:

¶1.   David Michael Lyon (Lyon) sued Billy McGee in the Forrest County Circuit Court

seeking damages for alienation of affection after Lyon and his former wife Emma Robin

(Robin) divorced. Lyon claimed that McGee interfered with his marriage, causing Robin

to abandon the marriage and have an adulterous relationship with McGee. Lyon discovered

the relationship in October 2013 – after the Lyons had separated and Robin had filed for

divorce, but before the divorce was final. Discovery ensued, and McGee admitted to having

an affair with Robin commencing on October 4, 2013. McGee filed a motion to dismiss, or
in the alternative, for summary judgment. McGee argued dismissal was proper because

Lyon ultimately agreed to an irreconcilable-differences divorce, which was at odds with an

alienation-of-affection claim. According to McGee, he could not have contributed to the

end of the marriage under this form of divorce, as reconciliation of the Lyons was

impossible. Further, McGee argued the defenses of issue preclusion and/or judicial or

collateral estoppel barred relitigation of the grounds for divorce that an alienation-of-

affection claim would create. Alternatively, McGee’s motion said summary judgment was

proper because there was no causal connection between McGee’s conduct and any alleged

loss by Lyon, because McGee’s conduct with Robin occurred long after the Lyons’

separation in July 2013. McGee claimed that he had no contact with Robin prior to this date.

¶2.    The trial court granted McGee’s motion for summary judgment, finding Lyon did not

sufficiently respond to establish a genuine issue of material fact, i.e., that McGee was

involved with Robin prior to their date of separation. Lyon filed a motion to reconsider,

which was denied. Lyon timely appeals, and McGee cross-appeals.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶3.    In April 2013, Robin initially asked Lyon for a divorce “out of the blue.” Lyon was

surprised, as he felt they “were living the American dream.” On July 12, 2013, the Lyons

decided to separate after a fourteen-year marriage that bore two children. On July 25, 2013,

Robin filed for a divorce on the grounds of habitual cruel and inhuman treatment, or

alternatively irreconcilable differences. On June 3, 2014, a Property Settlement and Child-

Support Agreement, and judgment of divorce based on irreconcilable differences was



                                             2
entered in the Perry County Chancery Court.

¶4.    On October 3, 2014, Lyon sued McGee for alienation of affection in the Forrest

County Circuit Court, seeking one million dollars in actual damages. Lyon contended that

McGee interfered with the Lyons’ relationship and “destroyed the marriage and deprived

[Lyon] of the affections of his former wife,” and “but for” the intentional actions of McGee,

Lyon would still be married. He claimed to discover the relationship in October 2013, after

the couple had separated, but before they were divorced. He made the discovery through

cellular-telephone records and McGee’s spouse, who had put a recording device in McGee’s

vehicle.

¶5.    McGee answered Lyon’s complaint, claiming that he and Robin had no relationship

until “long after” the Lyons had separated and Robin had filed for divorce (July 12 and 25,

2013, respectively). As an affirmative defense, McGee stated there was thus no causal

connection between any conduct by McGee and any loss claimed by Lyon. Further, McGee

asserted there was no affection or consortium existing between the Lyons at the alleged date

of his involvement with Robin. McGee also argued the claim was barred by issue preclusion

and/or judicial estoppel because the divorce was based on irreconcilable differences and,

therefore, McGee’s conduct could not have ended the marriage.

¶6.    On January 20, 2016, McGee filed a motion to dismiss, or in the alternative, for

summary judgment. McGee again argued collateral and/or judicial estoppel and issue

preclusion barred the claim. McGee also argued, almost as an afterthought, that the timing

of McGee and Robin’s affair occurred long after the Lyons’ separation. Therefore, McGee



                                             3
reasoned that Lyon could not prove the causal-connection element of his claim – no conduct

of McGee “caused the loss of affection or consortium” because the parties were already

separated. McGee attached to his motion Lyon’s complaint, his answer, the complaint for

divorce, and the settlement agreement, but no sworn statements such as affidavits,

depositions, or discovery materials. McGee’s supporting brief focused on the estoppel

arguments. Lyon filed a memorandum brief in opposition to the motion for summary

judgment, only addressing McGee’s judicial and collateral estoppel or issue preclusion

arguments and, like McGee, did not address the causation/timing argument. Moreover, he

did not attach any evidence to his memorandum brief. McGee filed a rebuttal memorandum

brief, addressing both the estoppel and causation issues. He argued Lyon’s claim was barred

by his withdrawal of fault grounds and acceptance of an irreconcilable-differences divorce;

thus, the causation element was not met. He attached a portion of Lyon’s deposition

wherein Lyon explained that Robin had agreed to his receiving sixty percent of the property

division if he would agree to an irreconcilable-differences divorce instead of a divorce on

the grounds of adultery.

¶7.    In February 2016, a hearing was held on McGee’s motion for summary judgment,

which the circuit judge took under advisement. Also addressed were two motions in limine

filed by McGee and Lyon.1 McGee sought to exclude voice recordings of conversations that

he had with Robin. The circuit judge granted the motion as the voice recordings were

obtained in violation of statutory law, but ruled he would hear further argument at an



       1
           These motions were not included in the record.

                                              4
appropriate time if the recordings became relevant. McGee also sought to exclude emails

between his wife and Lyon about the voice recordings. The circuit judge found the emails

would be prejudicial unless found relevant as to contact prior to October 2013. Further,

McGee requested the court not mention “anything prior to October 2013,” because in Lyon’s

deposition he responded in the negative when asked whether he had any proof of intimate

contact between his wife and McGee prior to that date. The circuit judge stated that the

motion was granted unless there was specific relevant evidence presented. Lyon also filed

a motion in limine to exclude any evidence of a relationship between him and a third party

after October 2013. That motion was granted.

¶8.    On March 1, 2016, the circuit judge entered an order granting summary judgment to

McGee, focusing on the timing/causation argument. The circuit judge found Lyon did not

establish that his wife and McGee had a relationship before July 12, 2013, the date the Lyons

separated. The circuit judge pointed to Lyon’s motion in limine, filed February 7, 2016,

which the judge found only “partially responded” to McGee’s motion for summary

judgment. The judge explained that the motion in limine stated “that phone records obtained

through depositions[2] clearly demonstrate a pattern of communication and behavior that

support the existence of previous liaisons” between McGee and Robin. The circuit judge

ruled that this response to the motion for summary judgment fell short of establishing a

genuine issue of material fact that McGee was involved with Robin prior to July 12, 2013,

the date of the marital separation. Therefore, McGee’s motion was granted.

       2
        Lyon notes that the order erroneously stated that the telephone records were
obtained through deposition, instead of by subpoena.

                                             5
¶9.    In response, Lyon moved for reconsideration. He argued that there were uncontested

facts before the court that were sufficient to defeat summary judgment. Importantly, he

argued that there was evidence the affair took place during the Lyons’ attempts to reconcile.

First, as stated in McGee’s response to interrogatories confirming the affair, Lyon claimed

the sexual relationship between McGee and Robin had existed at the latest in October 2013,

when Lyon was attempting to reconcile his marriage, even though by then Robin had filed

for divorce. Second, he claimed McGee took Robin into his home to cohabitate, ejecting

his own wife. Third, Lyon stated telephone records show “sudden and dramatic” daily

communication between McGee and Robin beginning in May 2013, before which there was

no communication. Lyon also argued that McGee, in his motion for summary judgment,

failed to meet his burden of showing a lack of genuine issue of material fact; he only

mentioned facts pertaining to his procedural arguments of judicial and/or collateral estoppel.

Moreover, Lyon noted that McGee did not support his claim with any evidence such as

affidavits or discovery responses. Lyon attached numerous discovery documents to his

motion to disprove McGee’s claim, including over 500 pages of McGee’s cellular-telephone

records, and emails between Lyon and McGee’s wife about the recording device put in

McGee’s vehicle to catch McGee and Robin “inflagrante delicto.”

¶10.   McGee responded, again arguing that there was no causal connection for the claim

because the only proof presented as to when the affair started was McGee’s sworn

interrogatory responses stating the affair began on October 4, 2013, long after the parties had

separated. A hearing was held, and the circuit court ultimately denied Lyon’s motion to



                                              6
reconsider. Lyon appeals both rulings on the motion for summary judgment and motion to

reconsider. McGee cross-appeals, arguing that if summary judgment is found improper, it

should be affirmed based upon judicial estoppel.

                                      DISCUSSION

       I.     Summary Judgment

¶11.   The standard of review for a trial court’s grant or denial of summary judgment is de

novo. Ill. Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1044 (¶16) (Miss. 2015). Summary

judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Id.

(quoting M.R.C.P. 56(c)). Evidence will be considered in the light most favorable to the

nonmoving party. Id. The moving party has the burden of proving there is no genuine issue

of material fact. Id. (citing Hosemann v. Harris, 163 So. 3d 263, 267 (¶9) (Miss. 2015)).

Once shown, “the burden of rebuttal falls upon the non-moving party” to produce specific

facts showing there is a genuine issue of material fact for trial. Wilbourn v. Stennett,

Wilkinson & Ward, 687 So. 2d 1205, 1213 (Miss. 1996) (citing M.R.C.P. 56(e)).

¶12.   McGee’s motion focused on the estoppel bars, but secondarily addressed lack of

proof for the causation element. Applying the judicial-estoppel doctrine to alienation-of-

affection claims, the Mississippi Supreme Court has stated “a party cannot assume a position

at one stage of a proceeding and then take a contrary stand later in the same litigation.”

Wood v. Cooley, 78 So. 3d 920, 926 (¶14) (Miss. 2011) (quoting Dockins v. Allred, 849 So.



                                             7
2d 151, 155 (¶7) (Miss. 2003)). Similarly, collateral estoppel bars a party from relitigating

specific issues that have already been litigated in a former action. Ward Gulfport Props.

L.P. v. Miss. State Highway Comm’n, 176 So. 3d 789, 794 (¶14) (Miss. 2015).

¶13.   McGee argued that Lyon’s alienation-of-affection claim was judicially estopped

because the couple entered into an agreement whereby Lyon withdrew fault grounds of

adultery for irreconcilable differences. Accordingly, McGee argues he cannot be at fault for

breaking up a marriage that was already irreconcilably broken. In its order granting

summary judgment, the trial court did not address the estoppel argument, but focused on

causation.

¶14.   We find McGee’s estoppel and issue-preclusion arguments are without merit. Just

because the Lyons were granted an irreconcilable-differences divorce does not mean there

was no adultery. As here, divorcing parties often withdraw fault grounds and opt for

irreconcilable differences. See Watson v. Watson, 882 So. 2d 95, 108-09 (¶¶67-68) (Miss.

2004) (In an irreconcilable-differences divorce, a chancellor was found in error for dividing

assets equally in property settlement and not taking into consideration the husband’s long-

term adulterous conduct that broke up the marriage.); Driste v. Driste, 738 So. 2d 763, 766

(¶9) (Miss. Ct. App. 1998) (In an uncontested divorce, a court held that limited testimony

on fault may be introduced for Armstrong factors to determine alimony.). The fact that the

divorce is granted without fault does not mean there was no fault, or that fault cannot be

considered for other purposes.

¶15.   Regarding causation, McGee had the initial burden to show that Lyon would be



                                             8
unable to prove an essential element of his claim. See Palmer v. Biloxi Reg’l Med. Ctr. Inc.,

564 So. 2d 1346, 1356 (Miss. 1990). The elements of alienation of affection are: “(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

(¶36) (Miss. 2007). “A claim for alienation of affection does not require that the plaintiff

prove an adulterous relationship . . . .” Bland v. Hill, 735 So. 2d 414, 417 (¶13) (Miss.

1999) (citation omitted). “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.” Children’s Med. Group P.A. v. Phillips, 940 So. 2d 931, 934

(¶9) (Miss. 2006). The plaintiff must establish that his spouse “was induced to abandon the

[husband] by some active interference on the part of the defendant.” Id. (quoting Stanton

v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932)).

¶16.   In his answer, McGee stated that he was not at fault for the demise of the Lyons’

marriage because he had no contact with Lyon’s wife until after the Lyons were separated

on July 12, 2013. Lyon argues this allegation, in an unsworn pleading, is insufficient to

establish a lack of a genuine issue of material fact; thus, summary judgment was improper.

¶17.   McGee responded that the trial court relied on more than just his answer to find no

genuine issue of material fact. Also attached to his motion was the settlement agreement

signed by both parties, which stated “irreconcilable differences” had arisen between Robin

and Lyon, resulting in their separation on July 12, 2013. McGee cites the settlement

agreement as proof that the marriage was “irretrievably broken” as of the date of separation,



                                             9
July 12, 2013.     While the agreement does not use that wording, it does state that

“irreconcilable differences have arisen between Robin and [Lyon] resulting in the parties

having heretofore separated on the 12th day of July, 2013.”

¶18.   After reviewing the record, we find that McGee’s motion for summary judgment met

his initial burden of showing a lack of a genuine issue of material fact as to a causal

connection. While McGee did not offer any sworn evidence to support his argument, but

merely his answer, where he stated he was not at fault because his and Robin’s contact

occurred after separation, Rule 56(b) states that a party may move for summary judgment

with or without supporting affidavits. See also Johnson v. Pace, 122 So. 3d 66, 68 (¶8)

(Miss. 2013); Lott v. Purvis, 2 So. 3d 789, 791 (¶9) (Miss. Ct. App. 2009). In Rule 56 of

the Federal Rules of Civil Procedure, failure to introduce affidavits will not prevent

summary judgment if the prerequisites are met in some other way. 10A Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 2722 at 394-95 (4th ed. 2016).

Further, the Mississippi Supreme Court has made clear that the movant only has the burden

of producing evidence in support of the motion if the movant has the burden of proof on the

issue at trial. Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88-89 (¶11) (Miss. 2013)

(citation omitted); Haley v. Jurgenson, 154 So. 3d 935, 937 (¶7) (Miss. Ct. App. 2015).

Instead, “the movant bears the burden of persuading the trial judge that: (1) no genuine issue

of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment

as a matter of law.” Karpinsky, 109 So. 3d at 88 (¶11) (citation omitted). Moreover,

summary judgment is appropriate when the nonmovant fails to “make a showing sufficient



                                               10
to establish the existence of an element essential to the party’s case, and on which that party

will bear the burden of proof at trial.” Id. at 89 (¶11) (citation omitted).

¶19.   Here, McGee does not have the burden of proof at trial; therefore, at the summary-

judgment stage, he merely had the burden of persuading the trial judge that his motion was

proper. McGee cited to his answer that the affair did not begin until months after the Lyons’

separation, and then challenged Lyon to prove otherwise.3 Lyon wholly ignored the

challenge.

¶20.   The oral argument on summary judgment, again, addressed only the estoppel

arguments. However, immediately following that hearing was argument on McGee’s motion

in limine to exclude voice recordings, emails, and evidence showing a relationship between

Robin and McGee before October 2013. Although the discussion was not within the context

of the motion for summary judgment, it analyzed the evidence that supported when the affair

began. Lyon’s counsel explained that the affair did not begin “like a light switch” in

October 2013, but the evidence would show through a “combination of testimony, phone-

record patterns, and behavior – all of these things will agitate toward the affair beginning

earlier.” McGee’s counsel explained that he did not want any information mentioned prior

to October 2013 because Lyon admitted in his deposition when asked if “he had any other

proof of any intimate conduct prior to October 2013,” he responded “no.” McGee’s counsel



       3
        In McGee’s motion for summary judgment, he stated there was no causation
because “any alleged conduct or contact with [Lyon]’s former spouse, [Robin], occurred
long after the separation of [Lyon] and [Robin] and accordingly, there is no causal
connection between the alleged conduct on the part of [McGee] in any alleged loss claimed
by [Lyon].”

                                              11
surmised that there was no proof of an earlier relationship other than suspicions on the part

of Lyon. We cannot say the circuit court erred in concluding that Lyon’s references to the

telephone records were insufficient to establish a genuine issue of material fact of McGee’s

involvement with Robin prior to the date of separation.

¶21.   Next, Lyon argues that the circuit court improperly granted summary judgment

because of Lyon’s insufficient rebuttal to the unsupported claim that McGee raised in his

answer. It is well established that the nonmoving party “may not rest upon the mere

allegations or denials of the pleadings,” but “must set forth specific facts showing there is

a genuine issue for trial.” Bosarge v. LWC MS Props. LLC, 158 So. 3d 1137, 1142 (¶14)

(Miss. 2015) (citation omitted).       Mississippi Rule of Civil Procedure 56(e) states

“[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matter stated therein.” In the federal rules, the nonmovant must

support his or her factual position by evidence that will be admissible at trial; and not merely

rely on allegations in pleadings. F.R.C.P. 56(c)(1); Wright & Miller, § 2739 at 354.

¶22.   We find Lyon presented no proof of causation in rebuttal that could be utilized by the

circuit court. Similar to McGee, Lyon did not file any sworn statements or discovery

materials to rebut McGee’s claim of lack of proof for causation. Instead, Lyon focused his

response on McGee’s arguments for collateral/judicial estoppel and issue preclusion. It was

not until Lyon’s motion to reconsider that he offered discovery documents, but these, too,

were without proper affidavits or sponsors. When the motion for summary judgment was



                                              12
heard, no evidence was presented to show a triable issue regarding causation. Therefore,

we cannot say that the circuit court erred in granting McGee’s motion for summary

judgment.

       II.      Motion for Reconsideration

¶23.   Lyon argues that the circuit court erred in denying his motion for reconsideration

under Mississippi Rule of Civil Procedure 59(e). Under such a motion, “the movant must

show: (i) an intervening change in controlling law, (ii) availability of new evidence not

previously available, or (iii) need to correct a clear error of law or to prevent manifest

injustice.” Brooks v. Robertson, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citation omitted).

The standard of our review is an abuse of discretion. Id.

¶24.   Lyon argues that the evidence he provided in support of his motion for

reconsideration established a genuine issue of fact that McGee and Robin had a relationship

that predated July 12, 2013 – the date of the Lyons’ separation. He also claims the evidence

shows an issue of fact for the causal element.

¶25.   Lyon attached numerous exhibits in support of this contention and his motion;

however, none of it was appropriate for a motion to reconsider. Under Rule 59(e), evidence

submitted for a motion to reconsider must be “new . . . or not previously available.” All of

the evidence attached to the motion was previously available at the summary-judgment

stage. Those exhibits included discovery materials showing regular telephone contact

between the couple, emails between Lyon and McGee’s wife discussing the affair,4 and



       4
           These emails were unauthenticated and unsworn.

                                             13
Lyon’s own deposition testimony where he testified to McGee’s attempt to lure Robin

away.5 Lyon also submitted McGee’s interrogatory response where he admitted that the

affair with Robin began on October 4, 2013. Further submitted were McGee’s work

cellular-telephone bills for three years, from 2012 through 2015. Lyon claims that the

telephone records show eighteen telephone calls exchanged between McGee and Robin

during April 2013, forty-four calls in May 2013, forty-six calls in June 2013, and sixty-five

calls in July 2013. Lyon states that these records show a “sudden and dramatic” increase in

communication starting in April 2013. However, these were apparently the telephone

records referred to during the motion-in-limine hearing, and they were available prior to the

court’s summary-judgment ruling and would not, therefore, be a proper reason for

reconsideration. In In re Will of Smith, 910 So. 2d 562, 569 (¶¶28-31) (Miss. 2005), the

Mississippi Supreme Court found no abuse of discretion for the trial court’s refusal to

consider an affidavit filed with a motion for reconsideration. Under Rule 56(c), all affidavits

must be filed before the date of the hearing on summary judgment.




       5
         The attached excerpt of Lyon’s deposition testimony was Lyon’s response to what
proof he had that McGee lured his wife away from him and the marriage. Lyon claimed
McGee “had his eyes sexually on my ex-wife since the time she babysat for him twenty years
ago” when she would lay out by the pool in a bikini. Lyon claimed that McGee made
comments about her appearance “on a regular basis”; some in Lyon’s presence. McGee told
Robin she could be McGee’s fourth wife if she ever left Lyon, in front of McGee’s current
wife and both couple’s children. Lyon testified that they separated because Robin “asked
for a divorce in April [2013] out of the blue. We were living the American dream – paid for
home, she was a stay-at-home mom home-schooling the kids, lived close to all her family
– everything she said she wanted from the beginning of our marriage, she had . . . .”

                                              14
¶26.     Further, the records6 only show an increase in communication; they do not prove an

affair at the time. Our Court has recognized:

         the circumstantial-evidence doctrine allows the jury to draw an inference of
         the defendant’s negligence. . . . Circumstantial evidence is sufficient when it
         leads to an inference of negligence on behalf of one party. But circumstantial
         evidence that still leaves many inferences available is not sufficient as proof
         for necessary elements of a claim.

Walz v. HWCC-Tunica Inc., 186 So. 3d 375, 377-78 (¶¶12-13) (Miss. Ct. App. 2016) (This

Court affirmed summary judgment in a slip-and-fall negligence case because circumstantial

evidence surrounding the fall did not create an inference that a business-owner caused a

dangerous condition.). Lyon argues that the telephone records lead to an inference that the

affair occurred earlier; however, they do not satisfy his burden of proof since they only

imply the affair might have started earlier. There is no indication of what was discussed

during the telephone calls, or that McGee was inducing Robin to abandon her marriage.

Thus, the records create no inference sufficient to satisfy Lyon’s burden of proof.

¶27.     A motion for summary judgment “necessarily implicates the substantive evidentiary

standard of proof that would apply at the trial on the merits.” Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 252 (1986). Here, as in Liberty Lobby, the ruling judge must ask at the

summary-judgment stage “whether reasonable jurors could find by a preponderance of the

evidence that the plaintiff is entitled to a verdict.” Id. Even on reconsideration, with Lyon’s

belated attempt to enter evidence supporting his claim, Lyon did not meet this burden of

proof.

         6
        McGee correctly argues that the telephone records, without a sponsoring affidavit,
have no evidentiary basis.

                                               15
¶28.   ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

      LEE, C.J., IRVING, P.J., CARLTON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND FAIR,
J., NOT PARTICIPATING.




                               16
