                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    MAY 20, 2004 Session

               RICHARD A. JONES and RICHARD A. JONES, JR.
                        v. JODY W. HENDERSON

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-003024-03     Robert A. Lanier, Judge



                    No. W2003-02564-COA-R3-CV - Filed August 30, 2004


This case arises from the discovery of an extramarital affair. The Appellants brought suit against
Appellee, seeking damages on theories of outrageous conduct and interference with a contract.
Appellee filed a motion to dismiss for failure to state a claim upon which relief can be granted. After
a hearing on the motion, the trial court granted Appellee’s motion to dismiss and this appeal
followed. For the following reasons, we affirm.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and Holly
M. Kirby, J., joined.

Robert A. Wampler, Memphis, TN, for Appellants

James E. Bingham, James O. Lockard, Memphis, TN, for Appellee

                                             OPINION

                                  Facts and Procedural History

       Richard A. Jones, Sr. (“Husband”) married Lisa L. Jones (“Wife”) on December 30, 1983.
Since the time of the marriage, Husband and Wife have had three children, two of whom were
minors at the time the instant action was filed. Husband and Wife resided in Shelby County,
Tennessee.

        On or about April 10, 2003, at approximately seven o’clock in the morning, Richard A.
Jones, Jr. (“Son” or collectively with Husband, “Appellants”), the Husband’s and Wife’s oldest
child, who was an adult at the time the complaint was filed, discovered Jody W. Henderson
(“Appellee”) standing nude in Husband’s and Wife’s master bedroom closet. Husband’s and Wife’s
two minor children were asleep in the adjacent bedroom at the time of the discovery. Subsequently,
Son informed Husband of this incident.

         Appellants filed suit against Appellee, alleging that Appellee’s outrageous conduct and
interference with Husband’s marital contract caused Appellants “extreme mental anguish, severe
emotional distress, loss of consortium, and damages for the termination of the marital relationship
of [Husband].”1 Appellee filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6), arguing
that the Appellants’ complaint fails because the acts complained of do not rise to the level of conduct
necessary to support a claim for outrageous conduct, the claim is one for alienation of affections
which has been abolished in Tennessee, and the complaint does not allege that Appellants suffered
severe mental injury. On September 9, 2003, the trial court entered an order dismissing Appellants’
complaint. The lower court found that Husband’s complaint amounted to a suit for alienation of
affections or criminal conversation, both of which have been abolished in Tennessee. Additionally,
the court found that such acts complained of did not constitute “outrageous conduct” and, therefore,
dismissed Son’s complaint. Appellants timely filed their notice of appeal to this Court and present
the following issue for our review: whether the trial court erred when it dismissed Appellants’
complaint for failure to state a claim upon which relief may be granted, concluding that Appellee’s
act was not “outrageous conduct” and that Husband’s complaint was one for alienation of affections
or criminal conversation. For the following reasons, we affirm the trial court’s order dismissing
Appellants’ complaint.

                                               Standard of Review

        The Tennessee Supreme Court has set out the standard by which we must review a trial
court’s grant of a motion to dismiss:

                  A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a
         claim upon which relief can be granted tests only the legal sufficiency of the
         complaint, not the strength of a plaintiff’s proof. Such a motion admits the truth of
         all relevant and material averments contained in the complaint, but asserts that such
         facts do not constitute a cause of action. In considering a motion to dismiss, courts
         should construe the complaint liberally in favor of the plaintiff, taking all allegations
         of fact as true, and deny the motion unless it appears that the plaintiff can prove no
         set of facts in support of her claim that would entitle her to relief. Cook v.
         Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering
         this appeal from the trial court’s grant of the defendant’s motion to dismiss, we take
         all allegations of fact in the plaintiff’s complaint as true, and review the lower courts’
         legal conclusions de novo with no presumption of correctness. Tenn. R. App. P.



         1
                    Though Appellants’ complaint alleges damages for termination of marriage of Husband and W ife, it
also states that Husband “is married” to W ife. Given the record before this Court, we can only presume that the Husband
and W ife are still married.

                                                          -2-
        13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook,
        supra.

Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).
                                         Law and Analysis
        Appellants argue that Husband’s complaint was one for outrageous conduct rather than
alienation of affections or criminal conversation. Additionally, because Son could not bring a claim
for alienation of affections or criminal conversation, given that he is Lisa Jones’ son and not her
husband, his claim for outrageous conduct should be allowed to reach a jury. We disagree.

       For a claim of outrageous conduct, “[l]iability exists only where the defendant’s conduct has
been so outrageous in character and so extreme in degree as to be beyond the pale of decency.”
Alexander v. Inman, 825 S.W.2d 102, 104 (Tenn. Ct. App. 1991). Additionally, the defendant’s
conduct must cause serious mental injury. Id. (citing Swallows v. W. Elec. Co., 543 S.W.2d 581, 582
(Tenn. 1976)). The test often used by Tennessee courts may be found in the comments to
Restatement (Second) of Torts § 46:

                The cases thus far decided have found liability only where the defendant’s
        conduct has been extreme and outrageous. It has not been enough that the defendant
        has acted with an intent which is tortious or even criminal, or that he has intended to
        inflict emotional distress, or even that his conduct has been characterized by
        “malice,” or a degree of aggravation which would entitle the plaintiff to punitive
        damages for another tort. Liability has been found only where the conduct has been
        so outrageous in character, and so extreme in degree, as to go beyond all possible
        bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
        civilized community. Generally, the case is one in which the recitation of the facts
        to an average member of the community would arouse his resentment against the
        actor, and lead him to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46 cmt. d (1965); see also Alexander, 825 S.W.2d at 105.

        With respect to the torts of “alienation of affections” and “criminal conversation,” we are
mindful that such theories of recovery have been abolished by the Tennessee Legislature2 as well as
the Tennessee Supreme Court.3 Alienation of affections is defined as the willful and malicious
interference with the marriage relation by a third party, without justification or excuse. Dupuis v.
Hand, 814 S.W.2d 340, 343 (Tenn. 1991) (quoting Donnell v. Donnell, 415 S.W.2d 127, 132 (Tenn.
1967)). “The gist of the alienation of affection tort is the loss of consortium.” Kelley v. Jones, 675

        2
                  Specifically, Tenn. Code Ann. § 36-3-701 (2001) abolished the common law tort of alienation of
affections and Tenn. Code Ann. § 39-13-508 (2003) abolished the common law tort of criminal conversation.

        3
                The Tennessee Supreme Court retroactively abolished the tort of alienation of affections in Dupuis
v. Hand, 814 S.W .2d 340 (Tenn. 1991), and the tort of criminal conversation in Hanover v. Ruch, 809 S.W .2d 893
(Tenn. 1991).

                                                       -3-
S.W.2d 189, 190 (Tenn. Ct. App. 1984) (citing Rheudasil v. Clower, 270 S.W.2d 345 (Tenn. 1954)).
“Consortium is not a property right in one’s spouse; rather, it is a right of each to the company,
cooperation, affection, aid and support of the other.” Id. (citing Manning v. Mobile Aerial Towers,
Inc., 359 F. Supp. 211 (E.D. Tenn. 1972)). Under prior law, to establish a prima facie case for
criminal conversation, a plaintiff must prove the existence of a valid marriage between the spouses
and sexual intercourse between the defendant and the plaintiff’s spouse. Hanover v. Ruch, 809
S.W.2d 893 (Tenn. 1991) (citing Rheudasil, 270 S.W.2d 345 (Tenn. 1954); Darnell v. McNichols,
122 S.W.2d 808 (Tenn. Ct. App. 1938)).

        In this case, the husband and son have filed suit against the paramour based on events
stemming from the paramour’s improper conduct with the wife. After construing the complaint
liberally and taking all of Appellants’ allegations of fact as true, we cannot say the trial court erred.
First, we agree with the trial court that Husband’s action is, in reality, an action in tort for the
alienation of Wife’s affections or for criminal conversation. Husband’s entire claim is rooted in
Appellee’s inappropriate behavior with Wife, which falls within either or both of these abolished
torts. Though the complaint makes no mention of a claim for alienation of affections or criminal
conversation, we cannot allow Husband to circumvent an abolished tort by artful drafting. See Cary
v. Bourne, No. 02A01-9511-CV-00263, 1997 Tenn. App. LEXIS 643, at *25-27 (Tenn. Ct. App.
Sept. 23, 1997). Additionally, though Appellee’s conduct is inappropriate and unacceptable, it has
been previously held by this Court that an average member of the community would not find an
adulterous affair to be so atrocious as to go beyond the bounds of decency. Alexander v. Inman, 825
S.W.2d 102, 105 (Tenn. Ct. App. 1991). Both of Appellants’ claims must fail for this reason.4
Therefore, we affirm the trial court’s order granting Appellee’s motion to dismiss.

                                                   Conclusion

         For the reasons stated above, we affirm the trial court’s grant of Appellee’s motion to dismiss
for failure to state a claim. Costs of this appeal are taxed to Appellants, Richard A. Jones, Sr. and
Richard A. Jones, Jr., and their surety for which execution may issue if necessary.



                                                               ___________________________________
                                                               ALAN E. HIGHERS, JUDGE




         4
                  Though Alexander v. Inman concerned the question of outrageous conduct from the perspective of an
innocent spouse and this case concerns a claim filed by the unfaithful spouse’s adult child, we see no reason, and the
parties make no argument, why this distinction would transform an adulterous affair into outrageous conduct.

                                                         -4-
