Mabus v. St. James Episcopal Church, No. 2003-CA-00123-SCT

884 So.2d 747

Julie MABUS v. ST. JAMES EPISCOPAL CHURCH, Episcopal Diocese of Mississippi, Inc.,¹ and Jerry McBride.

Jerry McBride v. Julie Mabus.

Nos. 2003-CA-00123-SCT, 2003-IA-00439-SCT.

Supreme Court of Mississippi.

October 7, 2004.

Kathryn N. Nester, Jackson, Shawna A. Murrell, attorneys for appellant/appellee.

Charles Edwin Ross, Jackson, Brenda Currie Jones, Dorrance Aultman, Christopher Owen Massenburg, Hattiesburg, attorneys for appellees.

Robert A, Malouf, Jackson, attorney for appellant.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Julie Mabus filed suit in the First Judicial District of Hinds County Circuit Court against St. James Episcopal Church, Protestant Episcopal Church in the Diocese of Mississippi, and Jerry McBride (a former priest at St. James). Julie asserted seven separate causes of action against the defendants: breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, negligent infliction of emotional distress, negligent retention/supervision, and clergy malpractice. This lawsuit is based upon McBride's participation in the surreptitious tape recording of a conversation between Julie, McBride, and Julie's then-husband, Ray Mabus. All defendants filed a motion to dismiss all claims, which was denied by the trial court, the Honorable L. Breland Hilburn, presiding. In a 4-4-1 decision, this Court denied Defendants' Petition For Interlocutory Appeal. Mabus v. St. James Episcopal Church, No.2001-M-01558 (Miss. Nov. 29, 2001). Defendants' petition for certiorari to the United States Supreme Court was denied. Protestant Episcopal Church v. Mabus, 535 U.S. 1054, 122 S.Ct. 1910, 152 L.Ed.2d 821 (2002).

¶ 2. Defendants then filed a motion for partial summary judgment based upon the breach of fiduciary duty claims. Although Julie did respond, she did not file any opposing affidavits. Upon Judge Hilburn's leaving the bench, the case was reassigned to the Honorable Bobby B. DeLaughter. On August 21, 2002, Judge Delaughter issued a sixteen-page Memorandum Opinion Regarding Defendants' Motion for Partial Summary Judgment on Plaintiff's Breach of Fiduciary Duty Claims. In doing so, the trial court found that "[t]he general priest-parishioner relationship is not enough to establish a fiduciary duty under Mississippi law." The trial court noted that "whether a fiduciary relationship exists, depends upon factual circumstances, not upon professional standards of conduct for the average reasonable member of the clergy." Julie Mabus v. St. James Episcopal Church, Civ. Action No. 01-23 (Hinds Cty. Cir. Ct. Aug. 21, 2002)(citing Doe v. Evans, 718 So.2d 286, 291 (Fla.Dist.Ct.App.1998)) (opinion quashed in Doe v. Evans, 814 So.2d 370, 377 (Fla.2002); F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997); Moses v. Diocese of Colorado, 863 P.2d 310 (Colo.1993); Doe v. Hartz, 52 F.Supp.2d 1027, 1065 (N.D.Iowa 1999); Langford v. Roman Catholic Diocese of Brooklyn, 271 A.D.2d 494, 705 N.Y.S.2d 661 (2000)). However, in this case, the trial court ruled Julie had failed to prove "that she was a dependent person or reposed any trust or confidence in defendant McBride" and that therefore summary judgment was appropriate.

¶ 3. Defendants then filed a second motion for summary judgment as to the remaining claims. Julie filed a motion requesting that Judge Delaughter recuse himself based upon the second-to-last paragraph of the court's order, which stated: "[t]he Mabus children, two young girls, twelve and ten years of age, deserve some measure of privacy and this Court is not willing to even incidentally sacrifice that peace of mind upon the altar of their mother's vain pursuit of lucre." The motion to recuse was denied. At the hearing, the trial court invited both parties to provide additional information. Julie filed an affidavit in opposition to the Defendants' claims. The motion for summary judgment was granted on all counts as to all defendants with the exception of the fraudulent concealment claim against McBride, individually. Julie has appealed the trial court's grant of summary judgment and the denial of the motion to recuse; with our permission McBride has appealed the denial of summary judgment as to the fraudulent concealment claim against him.

FACTS

¶ 4. Most of the facts in this case are undisputed. The cause of action arises from McBride's participation in the tape recording of his meeting with Ray and Julie on January 7, 1998. At the time of the meeting, Ray and Julie were married, and McBride was the pastor at St. James Episcopal Church in Jackson, Mississippi where the Mabuses attended. Julie was an active, lifelong member of St. James. McBride officiated at the Mabuses' wedding and baptized both of their children. In addition to serving as their pastor, McBride was a close personal friend of both Ray and Julie. Ray invited McBride to be present when he confronted Julie with his knowledge of her purported infidelity several days prior to the meeting, and Ray told McBride that he intended to record the conversation on the advice of his divorce attorney. Julie's sister was also invited to attend the meeting, but she did not attend because her airline flight into Jackson was canceled due to inclement weather.

¶ 5. The meeting took place in the Mabuses' home. The trial court found that "the purpose of the confrontation and surreptitious recording was to obtain evidence for Ray Mabus to use as leverage in attempting to get Julie to agree to a no-fault divorce." Julie did not know that Ray was recording the meeting nor was she aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he "wanted to talk to her about something important with McBride present." Ray also testified that he believed McBride's "participation could possibly help save the marriage." However, by way of affidavit, Ray stated that "this meeting was not in any way a `counseling session.'"

¶ 6. What is clear from the transcript of the meeting is the fact that Ray presented his wife with three options: save the marriage, no-fault divorce, or "we go to war" which would include an alienation of affection suit against her alleged paramour. The first option was instantly dismissed by Julie, and it was readily discernible that custody of the children would be a major point of disagreement. Julie expressed confusion as to why McBride was present. McBride responded at times that he was there for Ray and at other times for both of them. Julie was combative and used profanity during the course of this confrontation and likewise begged and pleaded for custody of her children. At one point, McBride sent Ray out of the room. With Julie still upset, McBride assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon afterwards, McBride left the home. Julie asserts that, after leaving the Mabus household, McBride told several other people of the conversation regarding Julie's alleged infidelity.

¶ 7. Divorce proceedings ensued between the Mabuses.² Although the transcript was not introduced as evidence, Ray's expert witness used the transcript in reaching his determination that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody. During the divorce proceedings, Julie learned that the January 7 meeting was taped. She subsequently filed suit against McBride, the church, and the diocese.

¶ 8. Both Julie and McBride have filed appeals. Julie is appealing the order granting summary judgment in favor of all defendants on all counts, except fraudulent concealment against McBride individually. Because the trial court certified that order as final under M.R.C.P. 54(b), Julie seeks reversal. Since the trial court denied summary judgment to McBride only on the fraudulent concealment count, McBride petitioned this Court for an interlocutory appeal, asking this Court to reverse the trial court's denial of summary judgment as to him, individually, on the fraudulent concealment count. We granted McBride's petition. See M.R.A.P. 5. Both appeals have been consolidated and will be discussed simultaneously.

¶ 9. Julie has raised the following issues on appeal:

I. Whether the trial court erred in dismissing her claim of breach of fiduciary duty against the priest and/or the church.

II. Whether the trial court erred in dismissing her negligence claims, including negligent misrepresentation, negligent infliction of emotional distress, clergy malpractice, and negligent supervision and retention, against the priest, church, and/or diocese.

III. Whether the trial court erred in dismissing her fraudulent concealment claim against the church and diocese.

IV. Whether the trial judge erred in failing to recuse himself from consideration in this case.

The church and diocese disagree and restate the issues in the form of sixteen questions. Julie argues that a number of the issues while the church and diocese attempt to raise are not properly before this Court.

¶ 10. In his appeal, McBride has raised the following issues:

I. Whether the trial court should have abstained from the acceptance of jurisdiction in this ecclesiastical matter.

II. Whether the trial court erred in denying McBride's motion for summary judgment regarding fraudulent concealment because McBride did not owe a duty to Julie to inform her that her husband was taping the conversation.

A. That McBride's ecclesiastical duties as a priest may not form the basis of a fiduciary duty consistent with the First Amendment to the United States Constitution.

B. That the trial court determined from the evidence that neither a confidential relationship nor a fiduciary relationship existed between McBride and Julie.

III. Denial, Concession, and Estoppel.

IV. The trial court committed several reversible errors

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