Fulkerson v. Odom
| Docket Number: | 2009-CA-01848-COA | |
| Oral Argument: | 09-15-2010 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-08-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Alienation of affection - Statute of limitations - Section 15-1-49 - Discovery rule - Continuing tort Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee and Roberts, JJ. Concurs in Result Only: Irving and Carlton, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 10-16-2009 Appealed from: WAYNE COUNTY CIRCUIT COURT Judge: LESTER F. WILLIAMSON Disposition: SUMMARY JUDGMENT FOR DEFENDANT TO DISMISS CASE Case Number: CV-2007-194-W |
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| Party Name: | Attorney Name: | |||
| Appellant: | William D. Fulkerson |
ERIC A. TIEBAUER JR. |
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| Appellee: | Don Odom | WILLIAM C. HAMMACK |
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| Topic: | Personal injury - Alienation of affection - Statute of limitations - Section 15-1-49 - Discovery rule - Continuing tort |
| Summary of the Facts: | Don Odom had an affair with William Fulkerson’s wife, which ended in June 2003. Fulkerson first learned of the past affair in November 2006. In November 2007, Fulkerson sued Odom for alienation of affection. The circuit court granted Odom summary judgment based on Fulkerson’s failure to file suit within three years of the accrual of his claim. Fulkerson appeals. |
| Summary of Opinion Analysis: | To establish a claim for alienation of affection, the plaintiff must prove wrongful conduct of the defendant; loss of affection or consortium; and causal connection between such conduct and loss. Though alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations. Therefore, the general three-year statute of limitations found in section 15-1-49 applies. Fulkerson’s personal loss of affection—in reaction to a 2006 phone call between his wife and Odom and his wife’s later admission of the past affair—is irrelevant for accrual purposes. Instead, the inquiry focuses on discerning when the loss of Fulkerson’s wife’s affections was finally accomplished. In considering the evidence in the light most favorable to Fulkerson, his claim accrued in June 2003, the last time Odom and Fulkerson’s wife participated in the affair. Once they both decided the affair was wrong, Odom stopped pursuing the wife. She then returned to her marriage with Fulkerson, who experienced no loss of consortium for more than three years. The November 2006 phone conversation between Odom and Fulkerson’s wife merely confirms the past accomplishment of the loss of the wife’s affections. Because Fulkerson’s discovery of the affair is irrelevant to the question of when his claim accrued, the “discovery rule” cannot be used in these circumstances to delay the accrual Fulkerson’s claim until 2006, when Fulkerson learned of the past affair. Although a clandestine affair is a secretive wrongdoing, it is not unrealistic to expect a plaintiff to perceive, at the time of the affair, the resulting harm—the loss of consortium through alienation of the spouse’s affection. Fulkerson testified he did not notice any changes or loss in his marriage relationship during the time of the affair. He admitted he did not exercise reasonable diligence concerning the state of his marriage but instead traveled often for work and pre-occupied himself with his grandchildren. Fulkerson argues also that the phone conversation is evidence of a continuing tort. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation. The undisputed evidence shows Odom discontinued his wrongful conduct by June 2003, cutting off the possibility of a continual tort. A phone call three years later is too remote in time to be significant probative evidence of a genuine issue of whether Odom was in fact continuing his wrongful conduct. |
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