Herbert v. Herbert

374 So.3d 562

Mark D. HERBERT, Appellant/Cross-Appellee

v.Nina L. HERBERT, Appellee/Cross-Appellant

NO. 2021-CA-01291-COA

Court of Appeals of Mississippi.

04/25/2023

Rehearing Denied August 29, 2023

MADISON COUNTY CIRCUIT COURT, HON. M. BRADLEY MILLS, JUDGE

ATTORNEY FOR APPELLANT: MARK D. HERBERT

ATTORNEYS FOR APPELLEE: CRYMES G. PITTMAN, Jackson, ANN RUSSELL CHANDLER

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Mark Herbert sued Nina Herbert, his estranged wife, for six different causes of action after she decided to leave him and terminate their marriage. She later filed for and obtained a divorce. She moved for summary judgment on each of the torts Mark claimed she committed and for attorney’s fees. The trial court granted summary judgment in her favor, finding a prenuptial agreement included language that waived all claims against the other, but denied Nina’s request for attorney’s fees. Finding summary judgment legally appropriate on all claims but for different reasons, we affirm the order granting summary judgment. We reverse the order denying attorney’s fees and remand for a determination of attorney’s fees dependent upon which tort claims may be sanctionable.

FACTS

¶2. Two weeks before their marriage, Nina and Mark executed a prenuptial agreement on November 23, 2015. Mark, a practicing attorney, drafted the agreement. Nina was represented by an attorney during the drafting and execution of the prenuptial agreement. The agreement in part reads, "Each party hereby disclaims and releases all and every right, claim, and estate, actual, inchoate, or contingent, and of every kind and character, that he or she might, would, or could have against the other."

¶3. Mark and Nina Herbert were married on December 1, 2015. Nina left Mark on November 7, 2018, after the couple attended a concert together on November 5, 2018. The couple had a disagreement at the concert that resulted in Nina screaming at Mark, calling him a motherf***** and flipping her middle finger at him. Nina asserted that she left the marriage "because she feared Mark." Shortly after their separation, Mark sent the following text message to Nina on November 10, 2018, "I will never, ever agree to an uncontested divorce. Never. You do not have the grounds for a contested divorce. I will fight against that with every fiber of my being. You will face at least two years of pain and embarrassment…. And remember we signed a prenuptial agreement. You are exposing yourself to serious financial issues." (Emphasis added).¹

¶4. Mark filed this civil action on October 31, 2019, in the Madison County Circuit Court. Mark alleged six causes of action against Nina: (1) intentional infliction of emotional distress, (2) verbal assault, (3) conversion, (4) fraudulent misrepresentation, (5) defamation and slander, and (6) breach of contract. The underlying facts for each claim will be addressed in the analysis section for each cause of action.

¶5. Nina filed for divorce in South Carolina on December 5, 2019. Incident to the divorce proceeding, Nina filed an affidavit detailing her grounds for divorce. Mark was represented by an attorney in the South Carolina divorce proceedings, According to the final order of divorce, Mark did not object to the court’s order granting an agreed order of divorce. Nina’s affidavit filed in the South Carolina divorce proceeding forms the basis for some of Mark’s claims in this lawsuit.

¶6. On September 23, 2020, following unsuccessful mediation attempts, Nina filed a motion to dismiss this action or, in the alternative, for summary judgment, attorney’s fees, and costs (hereafter referred to as the motion for summary judgment). At a November 4, 2020 hearing, the circuit court granted the motion, finding that all claims in the complaint were waived by the parties’ prenuptial agreement. The circuit court entered its order on December 10, 2020.

¶7. On December 21, 2020, Nina filed a motion for attorney’s fees and costs, which was heard on September 8, 2021, by a new judge because the previous judge was appointed to the Mississippi Court of Appeals. The circuit court entered an order denying the motion on September 29, 2021. On October 7, 2021, Nina filed a motion to alter or amend the order, to prevent manifest injustice and to make findings of fact and conclusions of law. On November 3, 2021, the circuit court denied Nina’s motion. Mark appealed the grant of summary judgment, and Nina filed a cross-appeal regarding the order denying attorney’s fees.

STANDARD OF REVIEW

[1–3] ¶8. "Under Rule 12(b)(6), [when] matters outside the pleading are presented to and not excluded by the court, a motion to dismiss must be treated as one for summary judgment." Chalk v. Bertholf, 980 So. 2d 290, 294 (¶7) (Miss. Ct. App. 2007). This Court conducts a de novo review of a trial court’s decision to grant a motion for summary judgment. Straus-baugh v. Lumpkin, 282 So. 3d 445, 446 (¶2) (Miss. Ct. App. 2019). The Mississippi Supreme Court has held the non-moving party "must rebut the motion for summary judgment by producing significant probative evidence." Foster v. Noel, 715 So. 2d 174, 180 (¶35) (Miss. 1998) (emphasis added) (quoting McMichael v. Nu-Way Steel &Supply Inc., 563 So. 2d 1371, 1375 (Miss. 1990)). The trial court is not the trier of fact at the summary judgment phase but only determines whether the information provided by the nonmoving party creates a genuine issue of material fact on an essential element. Mantachie Nat. Gas Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992). "[T]he content of summary-judgment evidence must be admissible at trial although the evidence may be in a form, such as an affidavit, that would not be admissible," Ill. Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1043 (¶14) (Miss. 2015).

ANALYSIS

I. Defenses of Release or Waiver

¶9. As previously stated, the parties had entered into a prenuptial agreement on November 23, 2015. The prenuptial agreement contained broad language where each party waived all claims toward the other. Paragraph seven of the prenuptial agreement read as follows:

Waiver of Rights Against Spouse and Spouse’s Separate Property. Each party hereby disclaims and releases all and every right, claim, and estate, actual, inchoate, or contingent, and of every kind and character, that he or she might, would, or could have against the other….

(Emphasis added). Nina did not refer to the prenuptial agreement in her answer to the complaint, nor did she raise the affirmative defense of release. However, Nina did attach the prenuptial as an exhibit to her motion for summary judgment. On November 4, 2020, the circuit court heard the motion. Mark argued that Mississippi Rule of Civil Procedure 8(c) requires a court to deem an affirmative defense waived if a party fails to raise it in the answer.

¶10. The trial court found that the prenuptial agreement was "outside of the original pleadings," and the court, therefore, would consider the motion to dismiss as one for summary judgment. The circuit judge held that paragraph seven of the prenuptial agreement was indeed a waiver, holding, "I find that this agreement, in several places but specifically in paragraph seven, is broad enough to cover any claims that either spouse might have against each other arising during the course of the marriage."

¶11. On appeal, Mark argues that under Mississippi Rule of Civil Procedure Rule 8, Nina waived the defense of release by failing to raise it in her answer. Mississippi Rule of Civil Procedure 8(c) provides:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

(Emphasis added).

¶12. In MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 180 (¶44) (Miss. 2006), the Mississippi Supreme Court clearly held that "a defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver." (Footnote omitted).

¶13. In Hutzel v. City of Jackson, 33 So. 3d 1116, 1119 (¶12) (Miss. 2010), the Mississippi Supreme Court once again interpreted Rule 8(c). Hutzel sued the City of Jackson and Hemphill Construction alleging that the City’s actions in improving a segment of road on which Homer’s Barbecue was located negatively impacted the restaurant. Id. The restaurant argued it had "suffered financially and eventually was forced to close its doors because of lost revenues." Id. at 1118 (¶5). Hutzel argued these actions were "tantamount to an unconstitutional taking, negligence, nuisance, and trespass." Id. at (¶6). The City filed its answer in February 2003. Id. Two years later, the City filed a motion for leave to amend its initial answer to "include the affirmative defenses of release and accord, and satisfaction." Id. at (¶7). Hutzel objected to the motion and argued that because the City failed to plead the defenses in compliance with Rule 8(c), the City had waived them. Id. The trial court granted the City leave to amend the complaint. Id. at (¶8). The City then filed a motion for summary judgment, which the court granted. Id. Hutzel appealed from that order. Id. On appeal, the Mississippi Supreme Court held, "[I]f a party fails to raise an affirmative defense in its original answer, the defense will be deemed waived." Id. at 1119 (¶12). The Court explained, "This rule aids in this Court’s effort to ensure judicial efficiency and the expeditious resolution of disputes. Moreover, this approach gives parties incentive to be more...