Background

Before Christmas I reported the plaintiff’s verdict for $80,000 in Madison County Circuit Court in the Robertson v. Russell case. My initial impression was that the result was a loss for both sides. I still feel that way.

Facts

The facts of the case were typical for an alienation of affection case (or any example of infidelity). The plaintiff and his long-time wife were in a typical marriage: stable, but certainly without the passion of a new relationship. The defendant was in a similar marriage. The defendant and plaintiff’s wife began an affair, leading to the divorce of both couples. Plaintiff and defendant’s wife later married. There were some lurid details involving the affair, but again, fairly typical for instances of infidelity.

In summary, marriage is boring. Hell, being a responsible grown-up is boring. Affairs are exciting—at least that’s what people who have had them tell me. The fact that the cheaters later married doesn’t prove anything—except for maybe that being single in the South is un-fulfilling.

Reason that the Verdict was a loss for the Plaintiff:  The verdict was a loss for the Plaintiff because the amount was too low to make the case worthwhile from the Plaintiff’s side. The case involved a week long trial, a lot of discovery and expert witnesses on both sides. Assuming that Plaintiff’s expenses in the case were $30,000, that leaves $50,000 before attorney’s fees. Assuming a 40% attorney’s fee, that leaves the Plaintiff with $30,000. In my opinion it would not be worth $30,000 to have to re-live the failure or your marriage for several years while the case was pending and sit through a week long trial where the defendant’s natural defense was to attack the plaintiff. I’m not sure what amount that would be worth, but $30,000 isn’t close.

Reason the the Verdict was a loss for the Defendant: The verdict was a loss for the Defendant because he has to pay the Plaintiff $80,000 on top of Defendant’s own attorney’s fees and expenses. My estimate is that the Defendant spent north of $100,000 out of his own pocket in attorney’s fees and expenses. Insurance does not cover alienation of affection cases. I can’t characterize a case where the Defendant is out of pocket at least $180,000 as a win.

In addition, a survey of reported verdicts in alienation of affection cases shows that the Defendant was lucky to escape a large verdict in the high six figures at least. In 1999 in Bland v. Hill the Mississippi Supreme Court affirmed a $200,000 verdict from a Lee County case. In 2007 in Fitch v. Valentine, the Mississippi Supreme Court affirmed a $754,500 verdict from a Marshall County case. In 2008 in Pierce v. Cook the Court affirmed a $1.5 million verdict from a case in Rankin County.

Defendant in Roberston v. Russell was found by the jury to have done the same thing as the defendants in the above three cases, but the jury awarded less in damages. It would be easy for a different 12 people to return a much higher verdict for the same conduct.

My point is that the Defendant should have tried to settle the case, but never did. He lost at least $180,000 on top of his own time and stress and could have lost much more. If the Defendant wants to call himself a winner because he could have lost more, he certainly has that right. Many losing players leave the casino every day with the same mind-set—happy that their loss was not worse. But they still lost.

Should the Trial Court have conducted a punitive damages evidentiary hearing?:

Another problem for the Defendant’s case is that absent the Supreme Court  abolishing the cause of action, the case may come back from appeal for a punitive phase. The trial judge did not allow a punitive phase in the case, despite the fact that there was a punitive claim and admitted adultry.

The failure to conduct a punitive phase seems to violate the Supreme Court’s directives set out in Bradfield v. Schwartz. In that case, the Court reversed the trial court for not proceeding with a punitive phase after a plaintiff’s verdict in a case with a punitive claim. The Court explained the proper procedure in a case with a punitive damages claim:

If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury. At the close of this second phase of the trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper, then ultimately decides whether the issue of punitive damages should be submitted to the trier-of-fact (jury). If the judge, from the record, should determine, as a matter of law, that the jury should not be allowed to consider the issue of punitive damages, a directed verdict shall be entered in favor of the defendant on the issue of punitive damages, and the case will end. If, on the other hand, the judge should allow the issue of punitive damages to be considered by the jury, then the jury, upon being properly instructed by the judge on the punitive damages issue, may decide to award punitive damages, and if so, in what amount, or the jury may decide not to award punitive damages. [HN8] If the jury should award punitive damages, then, prior to entry of the final judgment on an award of punitive damages, the judge, pursuant to Miss. Code Ann. § 11-1-65(1)(f)(I), shall “ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others,” by considering the factors set out in Miss. Code Ann. § 11-1-65(1)(f)(ii)(1-4). While the statute does not envision that the judge could increase the amount of the jury’s punitive damages award, the judge could unquestionably, consistent with the statute, reduce the amount of the jury’s punitive damages award. 10 Finally, just as in any other case, the judge will ultimately decide, via the appropriate post-trial motions, whether it was error to submit the punitive damages issue to the jury. 

It’s my understanding that in Robertson the trial court refused to allow the case to proceed into an evidentiary hearing after the jury awarded compensatory damages. If so, the case should be coming back on appeal for an evidentiary hearing on punitive damages, unless the Supreme Court abolishes the alienation of affection cause of action. This is good news and bad news for both sides.

For the Plaintiff, the good news is that he may get a punitive phase with a different and probably better jury. The bad news is that based on the trial court’s past ruling, it will probably direct a verdict on punitive damages after the evidentiary hearing. If I represented the Plaintiff, I would ask the Supreme Court on appeal to rule that the issue of punitive damages must be submitted to the jury because there was evidence of an adulterous affair.

In Bland v. Hill the Court suggested that in alienation of affection cases the question of punitive damages hinges on whether there was sex involved in the affair:

It is clear that the reason Buddy wanted to put on proof of adultery is to obtain a punitive damage instruction. This Court has held that [HN9] in cases of adultery malice is presumed.  Walter v. Wilson, 228 So. 2d 597, 598 (Miss., 1969). Buddy cites to Walter, but in Walter the plaintiff was suing for alienation of affections and criminal conversation. Criminal conversation, when it was a viable claim, required proof of a sexual relationship between the alienated spouse and the defendant. In the case sub judice, Buddy was suing only for alienation of affections. Bland was not on notice that he would have to defend against accusations of adultery until after the discovery deadline. Buddy did not proffer any direct evidence, and this Court procedurally bars this claim.

For the Defendant, the good news is that the gate-keeping judge doesn’t believe that punitive damages are warranted in the case. The bad news is the defendant is going to be spending a lot more money in attorney’s fees and there may be a different judge when the case returns from appeal, since Judge Richardson is rumored to be considering retirement.

Should Mississippi Abolish the Alienation of Affection Cause of Action?:  I raise this question because many people do not believe in the cause of action and there have been dissenting and concurring opinions in the Court calling for the cause of action to be abolished. Justice McCrae called for the action to be abolished in a dissenting opinion in Bland v. Hill, asserting that the courts should get out of the business of policing broken hearts.

More recently Justice Dickinson called for the elimination of the action in a lengthy concurring opinion in Fitch v. Valentine. Justice Dickinson noted that 42 states do not recognize the action and gives several logical reasons supporting its elimination. One of the noted reasons in the problem with quantifying damages in the cases:

The awarding of damages presents another distinct problem in these actions, as no clear standards for compensating the plaintiff exist. Wyman, 615 P.2d at 455. This opens the door for quasi-punitive damage awards, disguised as actual damages, which are usually tainted by passion and prejudice. O’Neil, 733 P.2d at 698. Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791.

Another practical problem with the cause of action is that it prolongs hostilities between individuals who often have to continue to deal with each other due to having children together and who would be better served by burying the hatchet as quickly as possible.

I am in Justice Dickinson’s camp on the cause of action. I’m not a fan of the theory, but it is the law in Mississippi until the Supreme Court or Legislature say otherwise.