IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00367-COA
BRIAN S. POPE APPELLANT
v.
DEBORAH BAIRD MARTIN A/K/A DEBORAH APPELLEE L. MARTIN A/K/A DEBORAH MARTIN POPE A/K/A DEBORAH L. POPE
DATE OF JUDGMENT: 11/23/2020 TRIAL JUDGE: HON. DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: C. DALE SHEARER IAN AUSTIN ATTORNEY FOR APPELLEE: MATTHEW ALLEN BALDRIDGE NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 01/10/2023 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., WESTBROOKS AND EMFINGER, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Brian Pope filed a civil action against his stepmother, Deborah Martin, in the Rankin
County Circuit Court, alleging defamation and violations of state and federal wiretapping
laws. The Rankin County Circuit Court granted summary judgment in favor of Deborah on
all claims. Brian appealed, asserting that (1) the trial court erred when it granted summary
judgment without a hearing and without issuing any findings of fact and conclusions of law;
(2) the trial court erred when it granted summary judgment in favor of a party resisting
discovery; (3) summary judgment was improper on his defamation claim; and (4) summary judgment was improper on his wiretapping claims. We find no error in the trial court’s
decision to forego a summary judgment hearing, to decline to issue findings of fact and
conclusions of law for its summary judgment determination, or to grant summary judgment
amidst the parties’ discovery disputes. Nor do we believe summary judgment was improper
on the defamation claim. But because the record does not contain sufficient evidence to
assess the propriety of summary judgment on the wiretapping claims, we reverse and remand
to the trial court with instructions to remedy the record and properly assess the wiretapping
claims for summary judgment.
FACTS AND PROCEDURAL HISTORY
I. Background
¶2. In 1997, when Brian was thirty-five years old, his father George “Bill” Pope married
Deborah. The couple was married for nineteen years until Bill’s death in 2016. In 2011 Bill
was diagnosed with cancer. He also suffered from diabetes and progressive heart-valve
failure. His cancer was treated with surgery and radiation in 2012. In the summer of 2015,
Bill was diagnosed with an additional type of cancer, for which he received chemotherapy
in July, August, and September of that year. These combined ailments, along with their
complications, necessitated many doctor visits and hospital stays. On February 5, 2016, Bill
was transferred from MD Anderson Cancer Center in Houston, Texas, to Merit Health River
Oaks Hospital in Flowood, Mississippi, for his final hospital stay. Bill lost his battle with
cancer on February 12, 2016.
¶3. Bill’s last will and testament apparently provided that each of his beneficiaries
2 (Deborah and his four children Brian, William Pope, Barry Pope, and Alissa Marodis) should
receive twenty percent of his estate. Bill’s estate was probated in the Rankin County
Chancery Court. The administration of the estate appears to have contributed to some
animosity between Deborah and Brian.
II. Lawsuit Against Deborah
¶4. On February 9, 2018, Brian filed a complaint in the Rankin County Circuit Court
against his stepmother, Deborah—litigation that would persist in the circuit court for the next
three years. Brian’s complaint contained three claims: (1) a federal Wiretap Act violation;
(2) a Mississippi Wiretap Act violation; and (3) defamation.
¶5. In support of his federal and state wiretapping claims, Brian’s complaint alleged that
on February 9, 2016, during his father’s final hospital stay, Brian discovered a small, black
device “next to one of the sofa legs” in his father’s hospital room. Upon further inspection,
Brian determined that the device was a USB recorder that had been recording conversations
in the hospital room.
¶6. Upon leaving the hospital, Brian took the device with him. Using his computer, he
determined that the device held thirty-two audio recordings. Brian’s complaint stated that
many of the recordings were dictations of Deborah’s thoughts, but others were recordings
of oral conversations in her home and in Bill’s hospital room. In his complaint, Brian self-
transcribed excerpts from many of these recordings to support his wiretapping claims.
¶7. Brian’s complaint contained transcriptions of multiple conversations between Deborah
and other parties on various dates. But his interrogatories only specified the purported
3 Federal Wiretap Act violations as those instances “pleaded in Paragraphs 7-8, 16 and 22 to
27 of the Complaint.” These paragraphs correspond to two specific dates where Brian
maintained the recorded conversations were actionable (i.e., when he was present and
Deborah was not a party to the conversation)1: August 29, 2015, and February 9, 2016.
Brian’s affidavit confirms his focus was solely on these two dates. The August 29, 2015
recordings took place in Bill and Deborah’s home. According to Brian’s pleadings, the
conversation began with Bill, Brian, and Deborah conversing together, and then “Deborah
left the room for twenty minutes, leaving me alone with my dad while her [USB device]
recorded our private conversations.” The February 9, 2016 recordings occurred when
Deborah was absent from Bill’s hospital room. This was the same day Brian found the USB
recorder.2 These hospital-room recordings, according to Brian, began at approximately 8:00
a.m. Brian stated that Deborah left shortly thereafter and that the recorder picked up private
conversations between Brian, his siblings, and Bill, until Brian found the USB recorder
around dinner time on February 9, 2016. Notably, Brian admitted that he had transcribed the
portions of the recordings from the USB device that were found in his complaint and
affidavit. Brian’s self-produced transcripts described Deborah’s presence in the hospital
room at various points on the day of February 9, 2016. Because Brian failed to enter the
recordings into the record or to have certified or sworn copies of transcriptions entered, it
1 Brian acknowledges in his pleadings that he “does not make any claim that [Deborah] violated the law by recording conversations when she was in the room.” 2 The USB device contained files organized by the dates of recordings. Each file was broken down and saved into multiple recordings, so each date had its own “set” of recordings.
4 was unclear how long Deborah was actually present or absent on either August 29, 2015, or
February 9, 2016.
¶8. Brian’s third claim against Deborah was for defamation. Brian alleged that Deborah
sent a defamatory email3 on December 5, 2017, to a Rankin County Chancery Court
administrator. The email from Deborah consisted of the following message:
Subject: Re: attorney fees & GWP IRA distribution correction Case No. 2016-002312 Date: Tue, 5 Dec 2017 02:46:46 -0600 (CST) From: DEBORAH MARTIN Reply-To: DEBORAH MARTIN To: wbpope@twc.com, Brian Pope , Alissa , lstringer@rankincounty.org
I think the latest round of “fees” being charged the Pope Estate should be reviewed by Judge Grant. He knows the inflated charges game put on clients so I want the next round of charges to be approved by Judge Grant first before any more funds are paid out. If more legal work was in the future, it should have been detailed in statement and submitted with the $50K, Young Wells, Williams received just last week. Judge Grant reduced the outrageous legal fees charge the Pope estate by $16K, so he saw something curious just as I did!!!
Since I have been trying to get the IRA bond distribution explanation for almost 2 years, I wish for you to find out the answer and submit to the office of Judge Grant.
I was supposed to get 20% of Bill’s IRA just like the other 4. The bragging Morgan Stanley said they did this kind of stuff all the time with clients. Well, if you remember it was a mess. Totally disorganized. The whole place was totally disorganized the day we were in the Morgan Stanley office. It was a
3 Brian briefly mentioned at least two other derogatory emails in his pleadings, but the emails themselves are not included in the record. Brian’s focus appeared to be on the email sent to the chancery court administrator, as that was the only email listed in the defamation section of Brian’s complaint.
5 FIASCO. On March 4, 2016 we had to sign that we accepted the prepared individual IRA distribution chart of Bill’s IRA bonds and cash. The GWPope Morgan Stanley IRA bonds & cash were transferred in April 2016. The total ending value of The GWP IRA in March 2016 was $3,201,572.62 to be divided 5 ways.
Morgan Stanley divided up the bonds and cash in the 15 page asset distribution & the results were: Debby $711,110; Alissa 710,397; Bradley $712,290; Brian $713,238; Barry $712,242.
My $711,110 MS estimate - $655,169 in GWP IRA bonds & CASH created a shortage of $55,941. Therefore the other 4 beneficiaries should have had a similar figure. We were all on the same time table so the excuses thrown at me that the bonds fluctuate is B.S. The other 4 beneficiaries MS account summary should reflect a close figure to $55,941 shortage of funds to reach their MS bond distribution chart amount. None of you would produce the evidence to verify I received my 20% so this would have to be intentional planning. I want figures confirming what the other 4 received from the GWP IRA in bonds and cash and submitted to Judge Grant. I believe the 4 beneficiaries got funds within +/- $4000 of their 15 page MS GWP IRA Bond distribution list. Bottom line is the 4 of them were withing =/- $4k of their MS figures, I was off $55,941 but that has been denied research!! At the hearing that did not happen, I was told by Don Goode of Young Wells Williams that I would have to sue Morgan Stanley to get this money owed me from the GWP Will. Well, how timely that advise was. I told Bradley of this discrepancy several times but he did nothing. Privacy laws are all well and good but not at the expense that I cannot get my 20% inheritance. That is criminal. I also told all the attorneys I contacted for help on my case to be advocates for me in solving this discrepancy but they also did nothing. There were no differences in the 6 Morgan Stanley accounts. We were all under the same software information for calculations and on the same time schedule. The lame excuses I was told that it is a privacy issue and I cannot know or confirm I got my 20% inheritance per the GWP Will is criminal. Paper copy of email to be sent to Barry Pope.
6 Deborah Martin
Brian’s complaint asserted that the language regarding “‘intentional planning’ and that their
actions were ‘criminal’” were defamatory statements by Deborah that injured his reputation.
Brian propounded his request for admissions, interrogatories, and request for production of
documents shortly after filing his complaint.
¶9. On May 17, 2018, Deborah filed her answer and counter-claim against Brian for
conversion of her USB recorder. Deborah’s defenses to the wiretapping claim, fleshed out
in later pleadings, were that (1) she was a party to the recorded conversations; (2) if she was
not a party to the conversation, her husband Bill was a party, and he gave his consent to being
recorded by Deborah; (3) she never intended to record Brian; and (4) Brian had no reasonable
expectation of privacy in Deborah’s marital home or in Bill’s hospital room. In response to
the claim for defamation, Deborah’s defenses were (1) that the statement was true (2) and
that the email was privileged as related to a judicial proceeding, therefore unactionable.
Later in the action, she claimed that Brian had put forth no evidence he was injured by the
email, as defamation requires. Deborah also moved to strike some of the transcribed portions
of the complaint as being immaterial, scandalous, and unrelated to the action. She
propounded her interrogatories, requests for production, and requests for admissions to Brian
on the same day.
III. Discovery Disputes
¶10. On June 8, 2018, Deborah sent her first set of discovery responses to Brian. On July
9, 2018, Brian submitted his answer in response to Deborah’s counter-claim against him for
7 conversion of the USB recorder. He also filed his response in opposition to Deborah’s
motion to strike portions of the complaint, explaining that the portions she sought to strike
were related to malice and were material to a punitive-damages claim. Brian submitted his
first set of responses to interrogatories on July 18, 2018.
¶11. A year later, after the circuit court clerk’s notice of potential dismissal for want of
prosecution, Brian filed his first motion to compel discovery, alleging that Deborah submitted
insufficient responses to a great number of his written discovery requests. Deborah filed a
motion to compel discovery on November 15, 2019, mainly requesting Brian be required to
produce the USB recorder, which had been in his possession for three years at that point.
Both parties supplemented their discovery in November 2019. On January 29, 2020, Brian
next filed an amended motion to compel discovery, still arguing that Deborah’s identification
of recording devices and recordings was insufficient. The hearing regarding the amended
motion took place on February 12, 2020.
¶12. The trial court judge, displeased with the discovery squabbles, informed the parties
that he would give them an opportunity to walk outside and come to an agreement on
discovery. The judge informed the parties that they would be fined $150.00 per item that he
had to rule on because they could not agree. The judge stated, “I imagine . . . when they
realize it’s $150 per lick, they’ll probably start agreeing on some things. I have no problem
refereeing discovery, but it’s going to come at a price for both sides.”
¶13. Before the parties met in the hall, however, the trial court heard arguments on the
motion to strike portions of the complaint. The trial court determined that since the
8 complaint would not come before the jury, there would be no need to strike portions of the
complaint. Next, the trial court heard arguments regarding why the USB recorder had not
been produced by Brian. Brian noted that Deborah had not asked for a copy of the
recordings, but she had asked for the recorder itself. Brian argued that he could not “give
[Deborah] the only evidence we have in the case.” The trial court judge explicitly told
Deborah, “You’re entitled to a copy of the recording. I’m not sure they’ve got to give you
the device.” The trial court then asked the parties to agree on an expert to turn it over to,
splitting the cost of expert transcription.
¶14. Then the parties were asked to “[s]tep out in the hall, see if you can work the rest of
it out”—which they did. After a brief recess, Brian’s attorney told the trial court that the
parties agreed to “reserve a few things for down the road.” He stated that Deborah agreed
to supplement some discovery answers. He also stated that the parties “agreed . . . that the
recordings they have and the recordings we have will be submitted to an IT expert to pull
them off and, for their purposes, help identify which ones they claim are privilege and which
are not and, for our purposes, simply make them a copy and verify where they came from and
that kind of thing.”
¶15. An order denying the motion to strike portions of the complaint was entered on
February 25, 2020. An agreed order reflecting the specifics of the parties’ agreements
regarding the motion to compel was entered on the same day. The agreed order did not,
however, reflect an agreement to submit the recordings to a special master. The order
mentioned only that “[Deborah] will supplement her response thereto to produce all
9 recordings (whether audio or video) that she made of Brian Pope. Defendant will make that
supplemental response within thirty (30) days of entry of this Agreed Order. The parties
shall each bear half of the third-party costs necessary to produce such recordings . . . .”
¶16. On June 1, 2020, Deborah propounded her second set of interrogatories and requests
for production to Brian. This time, Deborah specifically requested that Brian “produce any
recording in your possession taken by [Brian], including every recording on the subject USB
disk recorder.” Both parties submitted additional discovery in the following months.
According to Brian’s own pleadings, Deborah made her first production of recordings,
producing “a storage device containing the eight referenced recordings” copies of the
recordings she identified on her computer (redacted for purposes of privilege). She also
submitted a detailed amended privilege log with the recordings. Brian did not submit copies
of his recordings.
IV. Summary Judgment
¶17. On September 21, 2020, Deborah filed a motion for summary judgment. In the
exhibits attached to the motion, Deborah included Brian’s first and second responses to
discovery requests, the table of recordings she produced, and the alleged defamatory email.
She also attached her affidavit, which claimed that Bill (a party in every recording in
question) gave his consent to being recorded. The affidavit stated that she and Bill purchased
the recording device together with the intent to use it for reminders and errands. She said
that Bill also used the recording device for reasons such as making to-do lists. Additionally,
Deborah stated, “[D]ue to Bill’s declining health, Bill asked me to and additionally gave me
10 permission to record him and to record doctor’s visits so we could remember the instructions
doctors and/or nurses gave us.” She stated that Bill would tell her to “sit there and record.”
Deborah supported this claim by submitting a May 23, 2015 recording where Bill said to her
at a doctor’s office, “No, you don’t, just be quiet and sit there and record . . . .”
¶18. On October 16, 2020, Brian submitted a motion to strike the portion of Deborah’s
affidavit regarding Bill’s consent as hearsay. He also filed his response in opposition to the
motion for summary judgment. Brian attached to his response only his own affidavit and
affidavits of his siblings Alissa and William.
¶19. Alissa’s affidavit established that she was not aware of the recording and that their
father never told them that he consented to any recordings. Alissa also mentioned that during
the private conversations that occurred in the hospital room, the room’s door was kept closed,
and the staff knocked and announced themselves when entering the room—thus giving the
family privacy during those times. William’s affidavit supported these facts and added that
Deborah knew she received approximately the same amount of bonds from the IRA
distribution as the other beneficiaries, and therefore she knew that no one intentionally tried
to deprive her of her share of Bill’s IRA. Finally, Brian also expressed in his affidavit the
lack of consent to being recorded. He stated that his father never told him about being
recorded or about his consent to being recorded. Brian also re-submitted large portions of
the self-transcribed excerpts from the USB recorder. He stated in his affidavit, “I listened
to the recording with those monologues from the [USB recorder] and made this true and
11 correct transcription directly from that recording, and was there for what else occurred.”4
¶20. Brian then filed a second motion to compel discovery, again alleging that there were
additional recording devices and recordings that Deborah had not produced.5 Hearings were
set for Brian’s motion to strike and his second motion to compel. Next, on October 27, 2020,
Brian made a motion for an evidentiary hearing,6 requesting that he be allowed to play the
recordings on the USB device for the court, particularly in light of the upcoming summary
judgment hearing, which was set for November 25, 2020.
¶21. On November 4, 2020, Deborah filed her response in opposition to striking portions
4 Brian’s and William’s original affidavits that were attached to the response in opposition to the motion for summary judgment had not been sworn to and subscribed before a notary public. On October 19, 2020, Brian filed amended affidavits that were properly notarized the same day. 5 Upon reading Deborah’s responses and supplementary responses to Brian’s interrogatories and requests for production as listed in this motion, it does not appear that Deborah’s responses refer to any additional recording devices or recordings. Deborah initially stated in her answer to Interrogatory No. 10 that she had an inoperable older recording device she could not locate. Her supplementary interrogatory answer stated that these two devices (the older device and the device in Brian’s possession) were the only two devices that contained recordings of Brian. Deborah’s second supplementary responses stated that she located the second, older device and placed it in her attorney’s possession. This response clearly stated that “there are two recording devices.” Deborah’s interrogatories stated the older device “at one point . . . did have a recording with Brian Pope on it,” which she identified in her second supplemental responses to Brian’s interrogatories. Yet Brian, in his second motion to compel discovery, alleged “Martin identified three recording devices” and “the collective effect of Martin’s three responses to Interrogatory No. 10 is to leave unclear how many total recording devices she has identified.” Deborah has explicitly and repeatedly identified two devices: one that was inoperable and one that was in Brian’s possession. But Brian continues to insist that additional recording devices or recordings exist. 6 Brian filed an amended motion for an evidentiary hearing the following day, October 28, 2020, which specifically referenced the upcoming summary judgment hearing.
12 of her affidavit as hearsay, arguing that the recorded statement and affidavit portions that she
submitted were (1) not hearsay, as they were not offered to prove the truth of the matter
asserted; and (2) even if they were hearsay, they would be excepted by Mississippi Rule of
Evidence 803(3) as a “then-existing mental, emotional, or physical condition” since they shed
light on Bill’s intent to be recorded.7 On the same day, she filed a motion to strike Alissa’s,
Brian’s, and William’s affidavits. In particular, she attacked Brian’s affidavit as
consist[ing] entirely of transcriptions [Brian] made himself of alleged recordings on the recording device in his possession. Plaintiff has not produced these recordings, these transcriptions have no indicia of reliability, and they are inadmissible hearsay under Miss. R. Evid. 801 and 802. [Brian] is transcribing out-of-court statements offered for the truth of the matter asserted. [Brian’s] statements are also self-serving in that [Brian] has seemingly interpreted these recordings in the light that most benefits him, with no evidence to support his transcriptions . . . . He has also failed to serve the sworn or certified copies of the recordings he references as [he is required to attach to his affidavit] by Miss. R. Civ. P. 56(e).
¶22. On November 4, 2020, Deborah also filed a rebuttal in support of her motion for
summary judgment, a response in opposition to Brian’s second motion to compel (in which
she claimed she had given Brian all copies of recordings and had identified all recording
devices), and a response in opposition to Brian’s requested hearing for evidence. Her final
filing on that day was a motion to compel discovery and for sanctions against Brian for
failing to provide copies of the recordings. Deborah noted in her motion that the trial court
had ruled at the February 2020 hearing regarding Brian’s first motion to compel that she was
7 “A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.” MRE 803(3).
13 entitled to the recordings.8 She sought sanctions from the trial court on the ground that Brian
had never produced the recordings that she had repeatedly requested.
¶23. On November 17, 2020, after a flurry of filings in the preceding days in rebuttal to
Deborah’s many motions, Brian filed a response to Deborah’s motion to compel production
of the recordings, stating that “discovery . . . is ongoing.” He explained that during the
February 12, 2020 hearing, the parties agreed to the use of a special master, and the trial
court requested that they “agree on an expert to turn [the USB recorder] over to.” Brian
explained that the parties had exchanged drafts for a proposed agreed order appointing a
special master but had not yet agreed on a draft. Brian stated that he sent the last proposed
draft order appointing a special master to Deborah on July 23, 2020, and that she had not
responded. As a consequence, Brian argued, he still had not produced the recordings—even
though when he filed his response, the summary judgment hearing was set for eight days
away (on November 25, 2020).
¶24. On November 18, 2020, Brian sent the trial court a letter reminding the court of the
pending motions prior to the summary judgment hearing set for November 25, 2020—i.e.,
the motion for an evidentiary hearing at which Brian could play the recordings, the motion
8 Deborah refers to the trial court’s directive from the February 12, 2020 hearing, where the trial judge stated, “[Y]ou’re entitled to a copy of the recording” and referred to it as an “order.” It is not clear that this statement can be construed in that way. The agreed order issued after the February 12, 2020 hearing only ordered, generally, “Defendant will make that supplemental response within thirty (30) days of entry of this agreed Order. The parties shall each bear half of the third-party costs necessary to produce such recordings. . . .” Regardless, the trial judge did state that Deborah should receive a copy of the recordings, and Deborah explicitly requested the recordings in discovery on June 1, 2020. But the recordings were never produced.
14 to strike portions of Deborah’s affidavit as hearsay, and his second motion to compel.
¶25. On November 23, 2020, two days before the summary judgment hearing, the trial
court’s staff attorney emailed the parties and stated that a hearing would not be necessary,
as “Judge Arthur has reviewed the filings in this matter” and found summary judgment
should be granted. A bare-bones order granting summary judgment was issued the same day.
¶26. On December 3, 2020, Brian filed a motion to alter the judgment or to state the facts
and conclusions upon which summary judgment was based. The trial court denied the
motion to alter the judgment on March 8, 2021, in an order reminding Brian that “Rule 56
summary judgment is not an action tried upon the facts without a jury so as to trigger Rule
52 applicability, therefore, findings of fact are unnecessary.”
¶27. Brian filed his notice of appeal one month later. On May 24, 2021, however, he filed
a motion with the trial court to set aside its order granting summary judgment, asserting fraud
under Mississippi Rules of Civil Procedure 60(b)(1) and 60(b)(6).9 In his motion to set aside
judgment, Brian continued to argue that Deborah had not produced all recordings and
recording devices. He argued that the court should vacate the judgment under rule 60(b)(1)
because Deborah hid evidence relevant to Brian’s claims and her defenses during discovery.10
¶28. A hearing was held on September 8, 2021, regarding Brian’s motion to set aside the
judgment under Rule 60(b). Brian’s attorney again requested to play the recordings for the
9 This additional filing, along with a motion by Deborah for attorney’s fees, caused the preparation of the appellate record to be put on hold, though the record preparation resumed at a later date. 10 A thorough review of the responses to discovery from Deborah gives no indication that she was hiding recorders or recordings or that she failed to produce evidence.
15 benefit of the court, but the court refused to “expand the record” following the prior grant
of summary judgment. After this refusal, Brian argued that Deborah hid and obstructed
evidence in the case, constituting reversible fraud under Rule 60(b)(1) or Rule 60(b)(6).
Brian’s examples of fraud were that (1) Deborah said there was no privacy in the hospital
room and that doctors did not knock before entering, but according to Brian the recordings
showed otherwise; and (2) Deborah misstated the date that Bill gave consent at the doctor’s
office, misquoting the year.11
¶29. The trial court judge, after reminding Brian’s attorney that Brian had possession of
the recordings in question, turned to the topic of the merits of Brian’s wiretapping claim.
The trial judge questioned Brian regarding his theory that Brian had a reasonable expectation
of privacy in Deborah’s home, expressing disbelief that a person could be liable in tort for
scenarios where a Ring doorbell filmed a person or if a nanny cam was mistakenly left
recording.
¶30. From the bench the trial judge stated the following in support of the order granting
summary judgment:
At the end of the day, what the Plaintiff had before this Court, this Court didn’t believe that the wiretapping statute that he cited in Mississippi was an actionable tort. There were no damages. It’s a garden variety claim that’s raised in almost every single divorce case in this state. And, quite frankly, this Court granting that going forward would just open up the floodgates of litigation for people who are unhappy with their results in chancery court.
11 Brian’s motion asserting fraud on the court stated that May 23, 2015, was a Saturday, an unlikely day for a doctor’s appointment. The motion also alleged that because Deborah said in the recording that it was Thursday and because May 23, 2013, was on a Thursday, “[Deborah] had to know the statement was not true,” and thus her fraud was evident.
16 Bottom line is many of these claims involved what was going on in the Deceased’s hospital room, what was going on in the Defendant’s home. This Court just didn’t see where that was actionable.
On the defamation claim, the Court felt like, assuming everything about his allegations were true, it didn’t expose him to public hatred, contempt or ridicule or degrade him in society. Simply stated, this Court doesn’t believe that comments or statements made to a Court’s - - to a Judge’s court administrator are statements made to the public. It’s a statement made to an agent of the judicial branch of government. And, quite frankly . . . . If every negative comment made to [the court administrator] was actionable, this Court would be filled up with claims about claims about claims. Bottom line, the Court just didn’t see that there was a claim after all the discovery was done, so the Court granted summary judgment.
¶31. The trial judge reminded Brian that the court was not required by law to give finding
of facts and conclusions of law in an order on summary judgment under Rule 56 before
denying Brian’s motion to set aside the judgment under Rule 60(b) in a ruling from the
bench. On September 23, 2021, the trial court entered an order denying the motion to set
aside the judgment and denying requests for sanctions and attorney’s fees. After this final
order was entered, the requisite documents were transmitted on appeal.
STANDARD OF REVIEW
¶32. “The standard of review for summary judgment motions is de novo.” United States
Fid. & Guar. Co. of Miss. v. Martin, 998 So. 2d 956, 962 (¶12) (Miss. 2008) (citing Germany
v. Denbury Onshore LLC, 984 So. 2d 270, 275 (¶15) (Miss. 2008)). This Court “examines
all the evidentiary matters before it—admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc., . . . [which] must be viewed in the light most favorable to the
party against whom the motion has been made.” McCullough v. Cook, 679 So. 2d 627, 630
(Miss. 1996) (citing Mantachie Nat. Gas Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170,
17 1172 (Miss. 1992)). “The trial court’s decision regarding summary judgment will be
affirmed if the record before the trial court shows that there is no genuine issue of material
fact and that the movant is entitled to a judgment as a matter of law.” Martin, 998 So. 2d at
962 (¶12).
ANALYSIS
I. Summary Judgment Without a Hearing and Trial Court’s Decision to Forego Findings of Fact and Conclusions of Law
¶33. Brian argues that the trial court procedurally erred when it granted summary judgment
without a hearing and without issuing any findings of fact and conclusions of law under
Mississippi Rule of Civil Procedure 52. Based on well-established precedent, we determine
that the trial court did not err in these matters.
¶34. Caselaw has explicitly stated that there is no right to a hearing on a summary judgment
motion. The Mississippi Supreme Court has held, “Rule 56 of the Mississippi Rules of Civil
Procedure neither explicitly nor implicitly provides the right to a hearing on a motion for
summary judgment.” Tunica County v. Town of Tunica, 227 So. 3d 1007, 1026 (¶46) (Miss.
2017) (citing Adams v. Cinemark USA Inc., 831 So. 2d 1156, 1162 (¶34) (Miss. 2002),
superseded by M.R.C.P. 78). Motion practice, which generally is governed by Rule 78, no
longer implies a right to a hearing on a summary judgment motion. Id.
¶35. Furthermore, it is well established that Rule 52’s requirement that a judge “shall upon
the request of any party . . . find the facts specially and state separately its conclusions of
law,” M.R.C.P. 52(a), does not apply to summary judgments under Rule 56. As Rule 56’s
advisory committee notes state:
18 A trial court need not make findings of fact when ruling on a motion for summary judgment because “a Rule 56 summary judgment hearing is not an action ‘tried upon the facts without a jury’ so as to trigger Rule 52 applicability.”
M.R.C.P. 56 advisory committee notes (quoting Harmon v. Regions Bank, 961 So. 2d 693,
700 (Miss. 2007)). Brian was informed of the holding in Harmon by the trial court in its
March 8, 2021 order denying his request to make additional findings and conclusions under
Rule 52. He has produced no new caselaw that indicates a change in this well-established
rule. We find that these assignments of error are without merit.
II. Resisting Discovery and Moving for Summary Judgment
¶36. Brian next asserts the trial court erred when it granted summary judgment in favor of
Deborah because he claims she was resisting discovery. Here, again, the trial court was not
in error.
¶37. Brian repeatedly has insisted that Deborah improperly resisted discovery by failing
to give him additional recorders and recordings. Deborah claims that she divulged all of the
equipment and recordings that she has in her possession. Our Supreme Court has found that
parties should not “resist[] discovery on the one hand and mov[e] for summary judgment on
the other.” Smith v. H.C. Bailey Cos., 477 So. 2d 224, 234 (Miss. 1985). Although this may
be true, if Brian believed that more time was needed to further compel Deborah in discovery
matters prior to summary judgment, the proper remedy was to file a Rule 56(f) motion.12 Id.
12 Mississippi Rule of Civil Procedure 56(f) (when affidavits are unavailable) states:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a
19 at 232-33 (citing Smith v. Cmty. Fed. Sav. & Loan Ass’n of Tupelo, 77 F.R.D. 668 (N.D.
Miss. 1977)). Brian, however, failed to file a Rule 56(f) motion to allow the trial court to
assess whether more time was needed for discovery in his case.
¶38. Furthermore, “[t]rial courts are afforded broad discretion in discovery matters, and this
Court will not overturn a trial court’s decision unless there is an abuse of discretion.”
Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 981 (¶9) (Miss. 2014). A
review of the record does not indicate that Deborah was resisting discovery. In fact, it
appears that she answered every discovery request Brian propounded, although not to his
satisfaction. Because there is no indication that the trial court abused its discretion in this
matter, we find that the trial court did not err in granting summary judgment amidst the
parties’ discovery disputes.
III. Summary Judgment on the Defamation Claim
¶39. Brian next argues that the trial court erred by granting summary judgment on his
defamation claim. He specifically argues that (1) the purported defamatory email was not
a pleading in a judicial matter and had no relation to the legal proceedings in chancery court;
and (2) the words “intentional” and “criminal” in the email were clear and unmistakable. We
disagree and find that summary judgment was proper on this claim.
¶40. The Supreme Court has listed the elements of defamation as follows:
(1) a false and defamatory statement concerning another;
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.
M.R.C.P. 56(f).
20 (2) an unprivileged publication to a third party;
(3) fault amounting at least to negligence on the part of the publisher; and
(4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Chatham v. Gulf Pub. Co., 502 So. 2d 647, 649 (Miss. 1987) (citing Rest. (2d) of Torts § 558
(1977)).
¶41. The threshold question in a defamation claim is whether the alleged statement was
defamatory, “for if the statement was not defamatory, little else matters.” Fulton v. Miss.
Pubs. Corp., 498 So. 2d 1215, 1216 (Miss. 1986) (citing Ferguson v. Watkins, 448 So. 2d
271, 275 (Miss. 1984); Gulf Publ’g Co. Inc. v. Lee, 434 So. 2d 687, 694 (Miss. 1983)).
“Subject to our normal standards, the question whether said-to-be-offending words are
defamatory may be decided by the Court without submission to the trier of fact.” Perkins v.
Littleton, 270 So. 3d 208, 216 (¶26) (Miss. Ct. App. 2018) (citing Lawrence v. Evans, 573
So. 2d 695, 697 (Miss. 1990)).
¶42. In Fulton, our Supreme Court held:
In determining whether a statement is defamatory, we recognize the common law rule that [a]ny written or printed language which tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se.
Fulton, 498 So. 2d at 1217 (quoting Ferguson, 448 So. 2d at 275). Moreover, “the words
used must have been clearly directed at the plaintiff [and] the defamation must be clear and
unmistakable from the words themselves and not the product of innuendo, speculation or
conjecture.” Id. “If the reader must struggle to see how and whether they defame, by
21 definition the words are not defamatory in law.” Lawrence, 573 So. 2d at 698. “Words
which may be found defamatory only with the aid of ‘a most vivid imagination’ are not
actionable.” Id. (citing Fulton, 498 So. 2d at 1217). Finally, “[t]he said-to-be-offending
words must be set in the context of the entire utterance. Their complexion draws color from
the whole.” Id.
¶43. In the present case, the defamatory words are not sufficiently clear. Upon a plain
reading of the email from Deborah to the court administrator, it appears that Deborah’s
critiques are directed at Morgan Stanley, the company distributing the IRA account, not Bill’s
children. As Deborah states in her email, “[t]he bragging Morgan Stanley said they did this
kind of stuff all the time with clients.” To ascribe Deborah’s use of “criminal” as a
defamatory word to Brian, given the full context of this email, requires a reader to “struggle
to see how and whether [the words] defame” and thus are not defamatory in law. Id.
¶44. It is true that Deborah speaks harshly about “you” when she says that “none of you
would produce the evidence to verify I received my 20% so this would have to be intentional
planning.” But this critique regarding the failure of “you” (presumably the children) to
provide her with paperwork falls short of defamatory language. As the Supreme Court has
said, “our sensitivity to the destructive power of words hardly suggests we assess damages
for all bruised feelings.” Id. at 699 (quoting Ferguson, 448 So. 2d at 276). “Claims of
defamation must rest upon sterner stuff than the innuendo, speculation and conjecture . . .
[the plaintiff] presents to us this day.” Fulton, 498 So. 2d at 1217. “‘[M]any demonstrably
unfair’ ‘linguistic slings and arrows’ are not actionable.” Perkins, 270 So. 3d 218 (¶35)
22 (quoting Ferguson, 448 So. 2d at 276). Here, as a matter of law, the emailed statement was
not defamatory.
IV. Summary Judgment on the Wiretapping Claims
¶45. Finally, Brian contends that summary judgment was improper for his wiretapping
claims because genuine issues of material fact were present. Because there is a genuine issue
of material fact present, we reverse the order granting summary judgment on these claims
alone and remand the case to the trial court for further proceedings.
¶46. Brian’s complaint alleges that Deborah recorded his private conversations in violation
of 18 U.S.C. § 2511 and Mississippi Code Annotated sections 41-29-501 to -536 (Rev.
2018). Section 2511 “deals with wire, electronic and oral communications interception. It
generally prohibits interception and disclosure of wire, oral and electronic communications
except those specifically provided for in the Act.” Wright v. Stanley, 700 So. 2d 274, 277
(Miss. 1997) (referencing 18 U.S.C. § 2511). Specifically, the pertinent portion of the statute
states:
(1) Except as otherwise specifically provided in this chapter any person who–
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; ....
(4)(a) . . . whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 2511(1)(a), (4)(a). The statute defines “oral communication” as “any oral
communication uttered by a person exhibiting an expectation that such communication is not
23 subject to interception under circumstances justifying such expectation.” 18 U.S.C.
§ 2510(2); Boddie v. Am. Broad. Cos. Inc., 731 F.2d 333, 338 (6th Cir. 1984). “The statute
defines ‘intercept’ as the ‘aural acquisition of the contents of any wire or oral communication
through the use of any electronic, mechanical, or other device.’” Id. (quoting 18 U.S.C.
§ 2510(4)).
¶47. “The Mississippi wiretap prohibition is almost identical to the federal statute.”
Wright, 700 So. 2d at 280. Analogous to the federal statute, the Mississippi statute provides
civil recourse for violation of the statute. See Miss. Code Ann. § 41-29-529 (Rev. 2018).13
Just like the federal statute, our state law also provides a list of those who are immune from
civil liability. Miss. Code Ann. § 41-29-531 (Rev. 2018). Relevant to the present case, a
person is immune from civil liability who is
not acting under color of law who intercepts a wire, oral or other communication if the person is a party to the communication, or if one (1) of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any
13 The applicable portion of section 41-29-529 states:
(1) A person whose wire, oral or other communication is intercepted, disclosed or used in violation of this article shall have a civil cause of action against any person who intercepts, discloses or uses or procures another person to intercept, disclose or use the communication, and is entitled to recover from the person:
(a) Actual damages but not less than liquidated damages computed at a rate of One Hundred Dollars ($100.00) a day for each day of violation or One Thousand Dollars ($1,000.00), whichever is higher; (b) Punitive damages; and (c) A reasonable attorney’s fee and other litigation costs reasonably incurred.
24 criminal or tortious [or any other injurious] act.
Miss. Code Ann. § 41-29-531(e) (emphasis added); see also 18 U.S.C. § 2511(2)(d)
(providing that interception is not unlawful under the Federal Wiretap statutes when a person
is party to the communication or where one party to the communication has given consent
unless the communication is intercepted for the purpose of criminal or tortious acts).
¶48. Here, Deborah urges that summary judgment is appropriate in this claim because (1)
she attested that Bill gave his consent to the recordings that she was not a party to, which she
documented in a recording she submitted to the record; (2) Brian had no reasonable
expectation of privacy in her home and hospital room; (3) she had no intent to intercept
Brian’s conversation; and (4) no damages resulted as a result of the recordings.14 But these
claims and defenses are all questions of fact for a jury. See Boddie, 731 F.2d at 338-39
(Whether plaintiff had expectation of privacy and “whether that expectation was justified
under the circumstances” is an issue of fact for the jury.); Kee v. City of Rowlett, 247 F.3d
206, 213-15 (5th Cir. 2001) (The determination of a reasonable expectation of privacy uses
factor-based test heavily dependant on facts.); Fultz v. Gilliam, 942 F.2d 396, 404 (6th Cir.
1991) (Whether the party had the intent to intercept a conversation is a jury question.);
Watkins v. L.M. Berry & Co., 704 F.2d 577, 582 (11th Cir. 1983) (The trier of fact
determines the scope of the consent to determine whether the intercepted message exceeds
the consent.). At the summary judgment phase, of course, this Court must not determine
issues of fact. Am. Legion Ladnier Post No. 42 Inc. v. City of Ocean Springs, 562 So. 2d
14 We note that damages are statutorily provided. Miss. Code Ann. § 41-29-529; see also 18 U.S.C. § 2520 (authorizing civil damages under the federal wiretap statutes).
25 103, 106 (Miss. 1990). We must review the evidence to determine only whether a genuine
issue of material fact exists, viewing such evidence in the light most favorable to the non-
movant. Karpinsky v. Am. Nat. Ins. Co., 109 So. 3d 84, 88 (¶¶9-10) (Miss. 2013).
¶49. “Trial judges must be sensitive to the notion that summary judgment may never be
granted in derogation of a party’s constitutional right to trial by jury.” Brown, 444 So. 2d at
362 (citing Miss. Const. art. 3, § 31). Here, the trial court was too hasty in granting summary
judgment on the wiretapping claims. “Issues of fact sufficient to require denial of a motion
for summary judgment obviously are present where one party swears to one version of the
matter in issue and another says just the opposite.” Dennis v. Searle, 457 So. 2d 941, 944
(Miss. 1984). Furthermore, “[i]ssues of fact . . . also exist where there is more than one
reasonable interpretation that may be given undisputed testimony, where materially differing
but nevertheless reasonable inferences may be drawn from the uncontradicted facts, or where
the purported establishment of the facts has been sufficiently incomplete or inadequate that
the trial judge cannot say with reasonable confidence that the full facts of the matter have
been disclosed.” Id.
¶50. In the present case, Brian and Deborah disagree over whether the recordings produced
by Deborah capture hospital staff knocking when entering Bill’s hospital room (an indication
of whether Brian had a reasonable expectation of privacy there). Brian’s and Alissa’s sworn
affidavits attest that hospital staff would “first knock and announce themselves.” The parties
dispute whether Deborah’s recordings, which she submitted as a response to a request for
production on the same day as her motion for summary judgment, capture knocking by the
26 staff. Brian and Deborah also disagree on the scope, date, and context of the May 23, 2015
recording of Bill, in which he told Deborah to “sit there and record.” And finally, Brian
separately relies on self-transcribed recordings that are not in evidence, thus rendering the
establishment of facts incomplete. Because (1) Brian attests Deborah’s recordings show
knocking while Deborah claims they do not; (2) materially differing but nevertheless
reasonable inferences may be drawn from the uncontradicted May 23, 2015 recorded
statement by Bill; and (3) the purported establishment of the facts is incomplete or inadequate
so that the full facts of the matter have not been disclosed, summary judgment was not
appropriate on this particular claim. Id.
CONCLUSION
¶51. In conclusion, we hold that the trial court did not err in granting summary judgment
without a hearing or without issuing facts or conclusions of law under Mississippi Rule of
Civil Procedure 52 or in granting summary judgment in light of the discovery disputes. We
also affirm the grant of summary judgment on Brian’s defamation claim. But we reverse the
trial court’s grant of summary judgment on the issue of Brian’s wiretapping claims and
remand for proceedings consistent with this opinion.
¶52. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.