From Justice Lawrence's opinion in Herbert v. Herbert, decided in April 2023, but only recently posted on Westlaw:
In the complaint's first count, Mark asserted a claim of intentional infliction of emotional distress. In the complaint Mark stated, "On or about November 7, 2018, without any notice or warning whatsoever, the [d]efendant left the parties' marriage." Mark alleges that despite his efforts at "reconciliation," Nina has "refused all communication." The complaint continued that since November 7, 2018, the defendant engaged in "numerous intentional actions or communications" that caused "severe emotional distress to the [p]laintiff." …
{In Mark's affidavit attached to his response in opposition to summary judgment, he alleged the following testimony as further "examples of facts" that support his claims for intentional infliction of emotional distress, verbal assault, fraudulent misrepresentation, and defamation and slander: "When I called to tell [Nina] that my mother, to whom she was close, had died unexpectedly, she offered no sympathy, but yelled repeatedly and loudly that I had been mean to her and refused to come to [my mother's] funeral because [Nina] was not my wife. We were still married at the time." Nina "intentionally email[ed] me a photograph of my being charged with a BUI," "scream[ed] out in front of gathered people that [I] was a 'motherf*****' and flipped [me] the middle finger," "l[ied] to me [concerning] where she was on November 9, 2018," and "[o]n November 14-18, 2018, remov[ed] property from the couple's joint storage unit and empt[ied] [the] marital home."} …
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove
[(1)] [t]he defendant acted willfully or wantonly towards the plaintiff by committing certain described actions; [(2)] the defendant's acts are ones "which evoke outrage or revulsion in civilized society"; [(3)] the acts were directed at, or intended to cause harm to, the plaintiff; [(4)] the plaintiff "suffered severe emotional distress as a direct result of the acts of the defendant"; and [(5)] "such resulting emotional distress was foreseeable from the intentional acts of the defendant."
Mississippi's standard for a claim of intentional infliction of emotional distress is "very high" and focuses "on the defendant's conduct and not the plaintiff's emotional condition." … [A] defendant's conduct must be "wanton and wilful and [such that] it would evoke outrage or revulsion." To prevail on a claim and be entitled to recover damages for intentional inflection of emotional distress, the defendant's conduct must have 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." Liability does not extend to "mere insults, indignities, threats, annoyances, petty oppression, or other trivialities." …
Mark stated, "Nina has engaged in numerous actions or communications which she either intended to cause severe emotional distress to Mark or which were done by her with willful and total disregard of the impact and emotional distress such actions would cause Mark." But Mark failed to describe the instances that prove Nina's actions were anything more than an adult choosing to leave a relationship. While there was no doubt that Mark was distressed that Nina had decided to leave the marriage, we must focus on the behavior of the defendant, not the "consequences." Mark has failed to show any behavior on Nina's part that is "so extreme in degree, as to go beyond all possible bounds of decency."
Assuming Mark's allegations that Nina left "without any notice or warning," refused to go to his mother's funeral, or emailed him when he was "charged with a BUI" are true, none of those actions "go beyond all possible bounds of decency" or "evoke outrage or revulsion in a civilized society." Nina's acts stem from ending the marital relationship. While those acts may have caused emotional discomfort to Mark, they are not actionable under a claim of intentional infliction of emotional distress….
In his complaint, Mark alleged a single event as proof of his verbal assault claim. Mark claimed that on November 5, 2018, the couple attended a concert. "While standing outside in the parking garage for the concert, Nina screamed at Mark in public and in the presence of passersby and called him a motherf*****." Further, Mark alleges that Nina "flipped her middle finger" toward him and that those actions amounted to a "verbal assault." Nina admitted these actions in her answer. In her memorandum in support of her motion for summary judgment, Nina argued verbal assault is not a viable cause of action in Mississippi.
Mark attached his affidavit to his motion in opposition to summary judgment. He alleged the following as further "examples of facts" which support his claim for verbal assault, as well as several of his other claims: "When I called to tell [Nina] that my mother, to whom she was close, had died unexpectedly, she offered no sympathy, but yelled repeatedly and loudly that I had been mean to her and refused to come to [my mother's] funeral because [Nina] was not my wife. We were still married at the time." Nina "intentionally email[ed] me a photograph of my being charged with a BUI," "scream[ed] out in front of gathered people that [I] was a 'motherf*****' and flipped [me] the middle finger," "l[ied] to me [concerning] where she was on November 9, 2018," and "[o]n November 14-18, 2018, remov[ed] property from the couple's joint storage unit and empt[ied] [the] marital home."
In his memorandum in opposition to summary judgment, Mark argued, "To prevail on a claim for verbal assault, the plaintiff must show an intentional act of using abusive, insulting or offensive words or acts. It must be unreasonable and outrageous to the intended target. The perpetuation must have foreseen that the assault would cause some sort of negative impact." Mark alleged that Nina's assertion that verbal assault is not a cause of action "is incorrect." Mark provided no citation for this definition, no law recognizing verbal assault as a cause of action, and no reasoning as to how Nina was wrong in her assertion.
It does not appear that [a tort cause of action for] verbal assault has been recognized to exist in Mississippi. The potential erosion of the freedom of expression under the First Amendment to the United States Constitution weighs heavily against recognizing mere insulting words as actionable when the law already has a vehicle for infliction of emotional distress. That law is well established and, in an effort to balance the right to free speech enshrined in the First Amendment with a cause of action based in part on words, requires liability not extend to "mere insults, indignities, threats, annoyances, petty oppression, or other trivialities." …
In his complaint, Mark alleged Nina "repeatedly told [him] she loved him, was obsessed with him." Further, he alleged that Nina told him that she "loved us" as a couple and that "she wished other couples had the kind of relationship she and Mark had." Mark alleged that based on Nina's "current conduct and her leaving him without notice or warning, these representations now appear to be false, fraudulent and intentionally misleading." As discussed above, Mark attached his affidavit to his response in opposition to summary judgment. In his affidavit, Mark alleged several "additional examples of facts" he claims support his claim for fraudulent misrepresentation….
[But Mark's] complaint did not even allege actual fraud but merely asserted that in light of the then-current circumstances, the representations "now appear to be false." Although Mark argued these statements "now appear to be false," the mere possibility of fraud can never meet the requirements of pleading with particularity.
Further, Mark provides no authority to show that someone telling their spouse, "I love you," could under any circumstances rise to the level of materiality required to sustain a cause of action for fraudulent misrepresentation under Mississippi law. Mark's allegations are insufficient to support a claim for fraudulent misrepresentation.
{Essential elements of civil claims are for courts to discern. The affairs of people's hearts and why they tell others they love them are simply not actionable as fraud without more particularized allegations in the complaint supported by clear and convincing evidence.}
The court also held that Nina should be awarded some of her attorney fees:
Under the factors listed above, a substantial portion of this lawsuit was clearly frivolous. After Nina left the marriage, Mark sent a text message to Nina, which was attached to her motion for summary judgment, telling her, "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." It can be argued the present case was commenced to cause some of that "pain and embarrassment" to Nina. Considering the extent to which the party prevailed with respect to the amount and number of claims, Mark asserted six causes of action and succeeded in none. Some claims were clearly frivolous, and some were not even recognized under Mississippi law. All claims failed to plead facts that would survive legal scrutiny.
At the hearing on the motion for attorney's fees, counsel for Nina explained, "[T]his lawsuit was filed out of pure spite." After an examination of the record and consideration of the factors above, a portion of this lawsuit appears frivolous. The circuit court abused its discretion by denying in total Nina's motion for attorney's fees. Which claims justify an award of attorney's fees and how much to award are matters for the circuit court to decide. The order denying attorney's fees is reversed, and this case is remanded for a determination of appropriate attorney's fees after the circuit court determines which claims warrant sanctions….
Presiding Justice Carlton and Justice McDonald disagreed as to the attorney fees, and would have deferred to the trial court's judgment on the matter.
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