Marques Anthony Turner v. Taquanda W. Turner

• Court: Court of Appeals of Mississippi
• Decided: April 30, 2024
• Docket: 2023-CA-00216-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00216-COA

MARQUES ANTHONY TURNER APPELLANT

v.

TAQUANDA W. TURNER APPELLEE

DATE OF JUDGMENT: 01/11/2023 TRIAL JUDGE: HON. RODNEY PURVIS FAVER COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BENNIE L. JONES JR. ATTORNEY FOR APPELLEE: STEPHANIE SMITH WOODARD NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: REVERSED AND REMANDED - 04/30/2024 MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND McCARTY, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Appellant Marques Turner filed for divorce against Appellee Taquanda Turner

alleging cruel and inhuman treatment and adultery. The Lowndes County Chancery Court

dismissed Marques’ complaint, holding that the parties’ prior separate-maintenance action

barred the complaint due to res judicata. Marques appealed, claiming that res judicata should

not apply because the issues were not actually litigated during the separate maintenance

action and because Taquanda waived her res judicata defense by failing to answer Marques’

complaint and by waiting to pursue the defense.

FACTS AND PROCEDURAL HISTORY

¶2. On July 30, 2021, Taquanda filed a complaint for separate maintenance against

Marques, alleging that Marques left the marital home in May 2021 and did not return. Taquanda was seeking child support, child custody, and spousal support. Marques did not

answer the complaint. A hearing was held on September 22, 2021, after which the chancery

court entered an order granting Taquanda separate maintenance and child support on

November 9, 2021.1 Taquanda claims the court found she was not at fault for the separation.

However, both parties agree that Marques did not make any allegations of adultery or cruel

and inhuman treatment.

¶3. On December 29, 2021, Marques sued Taquanda for a divorce, alleging habitual cruel

and inhuman treatment and adultery. Taquanda was served with process on March 31, 2022,

and filed a motion to dismiss on September 19, 2022, alleging res judicata for the grounds

of cruel and inhuman treatment and adultery based on the prior separate-maintenance action.

The chancery court found that res judicata barred Marques’ divorce complaint and dismissed

the action. The chancery court held Marques was “seeking a divorce based on facts that were

in existence on or before” the separate maintenance action the court entered on November

9, 2021. The chancery court explained that Marques could refile a divorce complaint

alleging new grounds so long as the grounds arose after May 3, 2022 (the date of the court’s

last order). The chancery court also stated, “Discovery of evidence ‘after the fact’ that

occurred on or before May 3, 2022, shall not be sufficient to meet this Court’s requirement

to proceed on ‘new’ grounds.”

¶4. Marques filed a motion to reconsider the chancery court’s order on January 18, 2023,

which the chancery court denied on February 10, 2023. Marques then appealed.

1 We note that the record does not contain any document pertaining to the separate maintenance action, including the chancery court’s order.

2 STANDARD OF REVIEW

¶5. “When considering a motion to dismiss, this Court’s standard of review is de novo.”

Coleman v. WGST, LLC, 328 So. 3d 698, 700 (¶5) (Miss. Ct. App. 2021) (quoting Dobbs v.

City of Columbus, 285 So. 3d 1219, 1222 (¶7) (Miss. Ct. App. 2019)). “This Court will not

disturb the findings of the chancellor unless they are manifestly wrong or clearly erroneous,

or an erroneous legal standard was applied.” Id.

DISCUSSION

¶6. “When considering a motion to dismiss, the allegations in the complaint must be taken

as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff

will be unable to prove any set of facts in support of his claim.” Cook v. Brown, 909 So. 2d

1075, 1077-78 (¶8) (Miss. 2005). “A Rule 12(b)(6) motion to dismiss tests the legal

sufficiency of a complaint.” Id. However, “Rule 12(b)(6) motions are decided on the face

of the pleadings alone.” State v. Bayer Corp., 32 So. 3d 496, 502 (¶21) (Miss. 2010)

(quoting Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1211 (¶15) (Miss.

2001)). In addition, Mississippi Rule of Civil Procedure 12(b) states in part:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56 . . . .

M.R.C.P. 12(b).

¶7. In Bayer Corp., the Mississippi Supreme Court reversed a chancery court’s dismissal

of the State’s complaint after finding that the court considered matters outside the pleadings.

3 Bayer Corp., 32 So. 3d at 503-04 (¶¶25-26). Using a plain reading of Rule 12(b), and relying

on precedent in Sullivan v. Tullos, 19 So. 3d 1271 (Miss. 2009), and Wilbourn v. Equitable

Life Assurance Society of the U.S., 998 So. 2d 430 (Miss. 2008), Bayer Corp held that if a

trial court considers matters outside the pleadings in a motion to dismiss, the court is required

to convert the 12(b)(6) motion into a Rule 56 motion for summary judgment and give the

nonmovant at least ten days’ notice of a hearing for summary judgment. Bayer Corp., 32 So.

3d at 503-04 (¶¶24-25).

¶8. This Court distinguished Bayer Corp. by holding that a trial court may “consider the

contents of the complaint, the documents attached to the complaint, and the documents that

are referred to in the complaint if they are central to the plaintiff’s claim, even though they

are not attached to the complaint.” Breeden v. Buchanan, 164 So. 3d 1057, 1068 (¶53)

(Miss. Ct. App. 2015). In that case, the plaintiff’s complaint had included a few pages of the

insurance policy he was trying to enforce but argued that the court considered matters outside

the pleadings by looking at the complete insurance policy. Id. at (¶¶51, 53).

¶9. Here, the chancery court considered the separate maintenance action, which was

outside the pleadings. See Eubanks v. Wade, 220 So. 3d 247, 250-51 (¶¶16-20) (Miss. Ct.

App. 2017) (finding a prior default judgment against the party was outside the complaint).

While Marques’ complaint does briefly mention the separate maintenance matter, the matter

was not “central to the . . . claim.” Marques mentioned the separate maintenance matter to

provide factual background about the custody of the children. This is distinguishable from

Breeden, where the matter at issue—the insurance policy—was directly connected to the

4 plaintiff’s cause of action—enforcement of the insurance policy.

¶10. Because the chancery court considered matters outside the pleadings, the court should

have converted the motion to dismiss into a motion for summary judgment and given

Marques at least ten days’ notice of the summary judgment hearing. Since the record shows

that the chancery court failed to convert the motion and provide the necessary notice, we

must reverse the chancery court’s dismissal of this case and remand for further proceedings

consistent with this opinion.

¶11. Despite reversal, we find it prudent to discuss the substantive issues argued on appeal.

See Wilbourn, 998 So. 2d at 436 (¶14) (explaining analysis was “pertinent to the circuit

court’s determination on remand”). Marques argues that Taquanda waived her res judicata

defense and that the chancery court should have allowed Marques to amend his complaint

under Mississippi Rule of Civil Procedure 15.

(1) Waiver

¶12. “The waiver of an affirmative defense is subject to an abuse-of-discretion standard

of review.” Est. of Puckett v. Clement, 238 So. 3d 1139, 1144 (¶9) (Miss. 2018) (quoting

Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (¶13) (Miss. 2011)). “[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.” Id. at 1145

(¶10) (quoting MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 180 (¶41) (Miss. 2006)). “In

order to constitute a waiver, the delay must be ‘substantial and unreasonable.’” Id.

5 ¶13. Taquanda raised her res judicata defense on September 19, 2022, in her motion to

dismiss Marques’ divorce complaint. Marques argues this was roughly a nine-month delay

from when he filed his complaint on December 29, 2021. However, Taquanda was served

with process on March 31, 2022, which means any delay in raising her affirmative defense

was six months. This period is not “substantial” enough to be considered a waiver. See

Horton, 926 So. 2d at 181 (¶45) (without setting a minimum number of days, finding an

eight-month unreasonable delay coupled with active participation in the litigation process

constituted waiver).

¶14. Furthermore, Marques argues that Taquanda “[w]as actively engaged in the filing of

contempt actions alleging contempt of the separate maintenance agreement.” The record

does not show that Taquanda actively participated in the litigation before filing her motion

to dismiss. These contempt actions were separate from the instant case and do not appear

in the record. Marques also argues that Taquanda never filed an answer to the divorce

complaint. However, “[a] defendant is not required to answer the complaint in a divorce

matter . . . .” Schaubhut v. Schaubhut, 373 So. 3d 802, 807 (¶18) (Miss. Ct. App. 2023).

Accordingly, we find no reversible error in the chancery court’s finding that Taquanda

waived her preclusion defense.

(2) Res Judicata and Collateral Estoppel

¶15. The Mississippi Supreme Court in Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161

(1945), stated:

[A] decree in a separate maintenance suit is conclusive, as res adjudicata, in a subsequent divorce suit, so far as concerns any issue which was litigated

6 between the parties in the separate maintenance suit; and if the issue was decided in favor of the wife in that suit, it bars the husband in any subsequent divorce suit brought by him predicated on facts which were in existence at the time of the maintenance decree and which were put in issue, and decided in favor of the wife therein.

Id. at 163. The supreme court further explained, “The reason for the rule is, that the former

adjudication is always conclusive of the facts, and the rights of the parties based thereon,

existing at the time it was rendered, and the court will not again review those facts to

determine whether there was error in the decree—that is the province of an appellate court

only.” Id. The supreme court in Etheridge v. Webb, 210 Miss. 729, 50 So. 2d 603, 606-09

(1951), offers additional guidance on this issue:

Where a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive between the parties in a subsequent action on a different cause of action. This proposition is distinguishable from the effect of a judgment as a merger of the original cause of action in the judgment, or as a bar to a subsequent action upon the original cause of action. In either of the preceding cases the original cause of action is extinguished by the judgment, no matter what issues were raised and litigated in the action. However, where the subsequent action is based upon a different cause of action from that upon which the prior action was based[,] . . . the effect of the judgment is more limited. It is conclusive between parties in such a case as to questions actually litigated and determined by the prior judgment. This is the doctrine of estoppel by judgment. The judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted.

This rationale for the doctrine of collateral estoppel by judgment operates in this case to exclude evidence prior to the separate maintenance decree. Where this issue of voluntary separation and abandonment by the husband has been determined in a court of competent jurisdiction, that question of fact is conclusive up to that date between parties in this subsequent action in which appellant is now asserting that he did not abandon his homestead.

Id. at 606-07 (citations omitted). The supreme court discussed Wilson and its subsequent

7 divorce action, stating, “Clearly the effect of the Wilson cases is that the separate

maintenance decree made res judicata the issue of wrongful abandonment of the wife by the

husband up to that time, and under the doctrine of estoppel by judgment it precluded a retrial

of the facts passed upon in the former decree.” Id. at 609.

¶16. Here, we are dealing with collateral estoppel rather than res judicata. “When

collateral estoppel is applicable, the parties will be precluded from relitigating a specific

issue actually litigated, determined by, and essential to the judgment in a former action, even

though a different cause of action is the subject of the subsequent action. And, collateral

estoppel, unlike the broader doctrine of res judicata, applies only to questions actually

litigated in a prior suit, and not to questions which might have been litigated.” Dunaway v.

W.H. Hopper & Assocs. Inc., 422 So. 2d 749, 751 (Miss. 1982).

¶17. Taquanda claims that the separate maintenance action bars the divorce complaint on

the grounds of adultery and cruel and inhuman treatment because the separate maintenance

action determined that she was not at fault for the separation. This Court has stated that

“separate maintenance is . . . court-created equitable relief based upon the marriage

relationship and is a judicial command to the husband to resume cohabitation with his wife,

or in default thereof, to provide suitable maintenance of her until such time as they may be

reconciled to each other.” Jackson v. Jackson, 114 So. 3d 768, 774 (¶16) (Miss. Ct. App.

2013) (quoting Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010)).

“The granting of separate maintenance is premised upon the existence of a valid marriage

contract and premised upon a showing that there is no significant conduct on the part of the

8 requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. “The

power to grant separate maintenance to the wife was based on (a) separation without fault

on the wife’s part, and (b) willful abandonment of her by the husband with refusal to support

her.” Rodgers v. Rodgers, 349 So. 2d 540, 541 (Miss. 1977).

¶18. Taquanda’s argument is acceptable on the ground of habitual cruel and inhuman

treatment, but her argument fails on the adultery ground. During the separate maintenance

hearing, Marques could have argued his points on the issue of cruel and inhuman treatment

using known, existing facts. The judgment in the separate maintenance action determined

that Taquanda was not at fault for the separation, so Marques is barred by collateral estoppel

from arguing that prior acts of cruel and inhuman treatment caused their divorce. The

evidence could have been asserted in the separate maintenance action to show fault.2

However, that is the limit of that judgment. Any facts that Marques can argue occurred after

the entry of the chancery court’s order still may be used in his divorce action.

¶19. In addition, the adultery ground is still available because it is undisputed that Marques

allegedly did not discover evidence of the adultery until after the separate maintenance

hearing. Unlike the cruel and inhuman treatment ground, Marques could not have argued

adultery as evidence of Taquanda’s fault in the separation because Marques did not know

2 Marques may still be able to use prior evidence of Taquanda’s cruel and inhuman treatment in his divorce action if he can show that the prior evidence has aggregated with evidence that occurred after the separate maintenance order was entered. See Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986) (finding that a party is precluded from relitigating the question of habitual cruel and inhuman treatment with respect to acts that occurred prior to parties’ previous litigation but explaining a party is not precluded from litigating the question if the pre-litigation evidence aggregated with post-litigation evidence to constitute habitual cruel and inhuman treatment).

9 about the adultery. As such, the adultery could not have contributed to the separation and

therefore was never actually litigated. The chancery court’s previous finding that Taquanda

was not at fault for her separation from Marques cannot go so far as to preclude a future

divorce action based on previously unknown evidence of adultery. Furthermore, any new

evidence of adultery that occurred after the separate maintenance order was entered would

support Marques’ current divorce complaint.

¶20. Marques is correct in saying the chancery court could have allowed him to amend his

complaint to allege adultery and cruel and inhuman treatment that occurred after the entry

of its separate maintenance order. We go further to say that the adultery ground in the

current complaint is not barred by res judicata or collateral estoppel because Marques

allegedly discovered the evidence of adultery after the entry of the separate maintenance

order.3 Therefore, the chancery court erred by dismissing Marques’ divorce complaint.

CONCLUSION

¶21. In granting Taquanda’s Rule 12(b)(6) motion to dismiss, the chancery court

considered its prior separate-maintenance judgment, which was outside of the pleadings. The

court should have converted the motion into a motion for summary judgment and provided

a ten-day notice to Marques for the summary judgment hearing. Because the chancery court

failed to do so, we reverse the order of dismissal and remand the case for further proceedings

3 Under the Rule 12(b)(6) motion, all allegations of the complaint are taken as true. Cook, 909 So. 2d at 1077 (¶8). It is a factual issue whether Marques truly did not discover evidence about the alleged affair until after the separate maintenance order was entered.

10 ¶22. REVERSED AND REMANDED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.