IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-IA-01287-SCT
ROBERT G. GERMANY
v.
GINGER GERMANY
DATE OF JUDGMENT: 08/12/2011 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MYLES A. PARKER JAMES L. CARROLL STACEY P. STRACENER CLIFTON M. DECKER ATTORNEYS FOR APPELLEE: SETH C. LITTLE BARRY W. GILMER THOMAS A. WALLER NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: REVERSED AND REMANDED - 10/17/2013 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. This interlocutory appeal arises from the Madison County Circuit Court’s denial of
Robert Germany’s motion to sever and transfer claims filed against him by his wife, Ginger
Germany, to the Germanys’ pending divorce proceeding in the Hinds County Chancery
Court. Finding that many of Ginger’s claims against Robert are either equitable in nature or
are related to divorce and alimony, we reverse the circuit court and remand with instructions to sever and transfer those claims to the pending divorce action in the Chancery Court of the
First Judicial District of Hinds County, Mississippi.
STATEMENT OF THE CASE
¶2. Ginger filed a complaint against Robert and Holly Morgan for money damages, an
accounting, and injunctive relief in the Circuit Court of Madison County, Mississippi, on
February 24, 2011. On February 28, 2011, Robert filed a complaint for divorce against
Ginger in the Chancery Court of the First Judicial District of Hinds County, Mississippi.
¶3. In her complaint against Robert, Ginger asserted claims for breach of contract; fraud,
deceit and deception; constructive trust and unjust enrichment; conversion; accounting;
intentional infliction of mental distress; negligent infliction of mental distress; and a request
for injunctive relief. She requested judgment in the form of a constructive trust in her favor
as well as a money judgment against Robert for both actual and punitive damages. Ginger
also requested a judgment against Defendant Morgan for actual and punitive damages for her
claims of alienation of affection, intentional infliction of mental distress, and negligent
infliction of emotional distress.
¶4. On April 7, 2011, Robert filed in the circuit court a motion to dismiss, an alternative
motion to transfer, and an alternative motion to stay proceedings, arguing that Ginger’s
claims against him are matters of equity or are related to divorce and alimony and would be
better addressed in chancery court. A hearing on the motion was held on June 17, 2011, and
on August 12, 2011, the circuit court judge filed his order denying Robert’s motion. On
August 22, 2011, Robert filed a motion to reconsider and requested that the circuit court
judge stay the proceedings until this Court renders its decision on the interlocutory appeal.
2 ¶5. On September 2, 2011, Robert filed a petition for interlocutory appeal with this Court,
raising the following issues:
I. Whether the Madison County Circuit Court erred in denying Robert’s Motion to Sever and Transfer Ginger’s claims to the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.
II. Whether the Madison County Circuit Court erred in denying Mr. Germany’s Motion to Stay in light of the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.
¶6. The circuit court judge issued an order on November 2, 2011, to hold in abeyance
Robert’s motion to reconsider pending the disposition of the petition for interlocutory appeal.
The court noted that there was “potential for conflicts in a situation where the Plaintiff and
the Defendant Robert Germany may be involved in litigation in two different courts,
involving similar evidentiary matters, at the same time.”
¶7. Having granted Robert’s petition for interlocutory appeal, we limit our discussion to
the first issue, finding it to be dispositive.
STANDARD OF REVIEW
¶8. Robert argues that Ginger’s claims, “if viable at all, are within the exclusive subject
matter jurisdiction of the Chancery Court, and should properly be determined with all other
issues in the pending Divorce Action.” Jurisdiction is a question of law which this Court
reviews de novo. Trustmark Nat’l Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)
(citations omitted). The standard of review for a ruling on a motion to transfer from chancery
court to circuit court, or vice-versa, for lack of subject-matter jurisdiction is also de novo.
Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1178 (Miss. 2004).
3 DISCUSSION
Whether the Madison County Circuit Court erred in denying Robert’s Motion to Sever and Transfer Ginger’s equitable claims to the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.
¶9. Robert asserts that the circuit court erred in failing to sever and transfer Ginger’s
claims against him in the underlying circuit court action to the Germanys’ pending divorce
action in the Chancery Court of the First Judicial District of Hinds County, Mississippi.
Robert argues that, although Ginger’s claims were brought “under the guise of being ‘legal’
claims,” they are substantively “matters in equity” or “divorce and alimony.” In support of
his argument, Robert relies on Article 6, Section 159 of the Mississippi Constitution, which
states:
The chancery court shall have full jurisdiction in the following matters and cases, viz.:
(a) All matters in equity; (b) Divorce and alimony; ... (f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.
(Emphasis added.) Additionally, Article 6, Section 157, of the Mississippi Constitution
requires that “[a]ll causes that may be brought in the circuit court whereof the chancery court
has exclusive jurisdiction shall be transferred to the chancery court.” (Emphasis added.)
This Court has rejected the assertion that Article 6, Section 159 of the Mississippi
Constitution conferred exclusive jurisdiction in all matters of equity when it conferred full
jurisdiction over such matters. W. Horace Williams Co. v. Fed. Credit Co., 21 So. 2d 582,
583 (Miss. 1945) (emphasis added). However, the Legislature has instructed that
4 “proceedings to obtain a divorce shall be by complaint in chancery . . . .” Miss. Code Ann.
§ 93-5-7 (Rev. 2004) (emphasis added).
¶10. The real question before this Court is whether Ginger’s complaint presents legal
claims that should be decided by a jury in circuit court, or whether her claims are really
matters of equity or related to her marriage and/or divorce that should be heard in chancery
court. This Court has held that, in determining whether a court has subject-matter
jurisdiction, “one must look at the substance, and not the form, of the claim in order to
determine whether the claim is legal or equitable” and “we look to the face of the complaint,
examining the nature of the controversy and the relief sought.” Trustmark Nat’l Bank v.
Johnson, 885 So. 2d 1148, 1151 (Miss. 2004) (citations omitted); Derr Plantation, Inc. v.
Swarek, 14 So. 3d 71, 716 (Miss. 2009) (emphasis added) (citing RAS Family Partners, LP
v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007)). Thus, we must look to the
substance of each of Ginger’s claims, examining the nature of the controversy and the relief
sought, to determine whether they are truly legal or equitable in nature.
A. Breach of Contract
¶11. Ginger alleges that she and Robert formed an oral contract prior to their marriage and
continuing to the present wherein she agreed to set over her money and assets to Robert for
his use, management, and financial investment purposes. Ginger also allowed Robert to use
her money for the payment of income taxes. Ginger claims that, in exchange, Robert
promised that they would equally share $12,000,000 from his tobacco settlement (the
settlement was earned by Robert in 1999 but he chose to defer receipt of the money until
2011). Although not expressly stated, it appears that Ginger is seeking specific performance
5 of the contract – she claims that they agreed that she would receive repayment of her cash
contributions as well as an equal part of the tobacco money. She also alleges that Robert’s
breach of contract was willful, capricious, and malicious and that the breach amounts to a
separate tort and she should be entitled to actual and punitive damages together with
attorneys’ fees and other costs associated with the litigation.
¶12. Although labeled as a breach-of-contract claim, the “contract” that Ginger refers to
is an agreement she and Robert made, when they lived together and continuing during their
marriage, for the management of their money and assets. It was held long ago that “marriage
itself, as a personal relation between the parties, is not a matter of contract within the
meaning of the constitutional provision in reference to the inviolability of contracts.” Carson
v. Carson, 40 Miss. 349, 351 (Miss. 1856).
¶13. While Ginger’s claim to the “tobacco money” is artfully pleaded, this allegation
cannot be considered in isolation. The parties operated under the terms of this “contract”
throughout their ten-year marriage, accumulating and commingling property, until their
separation in 2010. For example, the funds Ginger allegedly entrusted to Robert’s
management were used to purchase marital property, such as the parties’ homes in Jackson,
Mississippi, and Scottsdale, Arizona. As discussed below, the chancellor has found that
Ginger received proceeds from the sale of the Jackson home, contrary to the allegations in
her complaint. The parties also accumulated a substantial wine collection, which Ginger
argues should be sold, with the proceeds being handed over to her. Ginger also claims that
her funds were used for the payment of the income tax debt resulting from Robert’s tobacco
litigation fee, and that a substantial part of Ginger’s estate was committed during the
6 marriage. Finally, as explained more fully below, Ginger has sought and been awarded
separate maintenance in the chancery court proceeding, based in large part on Robert’s
substantial income from the tobacco litigation. Looking at this case as a whole, it would be
impossible for a circuit court to separate Ginger’s breach-of-contract claim from her other
claims that are substantively equitable in nature and concern the distribution of the couple’s
property. The substance of Ginger’s breach-of-contract claim is whether the parties
commingled their assets during the marriage and whether she is entitled to receive a portion
of Robert’s tobacco litigation fee. The chancery court could better address whether Ginger
is entitled to any of this money when it determines how the parties’ assets should be
separated upon dissolution of the marriage, based on the factors set out in Ferguson. See
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
¶14. Ginger has been awarded separate maintenance in the divorce action.1 Separate
maintenance is an equitable remedy based upon the marriage relationship, and a decree for
separate maintenance is a command to the husband to resume cohabitation with his wife or
to provide suitable maintenance “until such time as they may be reconciled to each other.”
Daigle v. Daigle, 626 So. 2d 140, 145 (Miss. 1993) (citing Lynch v. Lynch, 616 So. 2d 294,
296 (Miss. 1993)). The purpose of separate maintenance is “to provide, as nearly as may be
possible, the same sort of normal support and maintenance for the wife, all things considered,
1 It was revealed at oral argument before this Court that Ginger has sought and was awarded separate maintenance in the pending divorce proceeding. The chancellor issued a temporary order granting Ginger separate maintenance on March 20, 2013. Robert’s petition for interlocutory appeal challenging the award of separate maintenance was denied. See Robert G. Germany v. Ginger M. Germany, No. 2013-M-01180-SCT (Aug. 28, 2013).
7 as she would have received in the home, if the parties had continued normal cohabitation. .
. .” Robinson v. Robinson, 554 So. 2d 300, 305 (Miss. 1989). When making an award of
separate maintenance, the chancery court is to consider:
(1) The health of both husband and wife; (2) Their combined earning capacity; (3) The reasonable needs of the wife and children; (4) The necessary living expenses of the husband; (5) The fact that the wife has free use of the home and furnishings; and (6) Other such facts and circumstances bearing on the subject that might be shown by the evidence.
Daigle, 626 So. 2d at 145.
¶15. In a divorce proceeding, the chancery court will determine the division of marital
assets through equitable distribution and will consider:
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: a. Direct or indirect economic contribution to the acquisition of the property; b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets. 2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise. 3. The market value and the emotional value of the assets subject to distribution. 4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; 5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
8 6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; 7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and, 8. Any other factor which in equity should be considered.
Ferguson, 639 So. 2d at 928 (emphasis added).
¶16. Ginger claims that she learned that Robert had breached their “contract” when he
announced on November 29, 2010, that he was having an affair and wanted a divorce. It is
significant to note that Ginger considers the date that Robert announced his intent to file for
divorce as the date that the “contract” was breached. The tobacco money, to which Ginger
alleges she is entitled an equitable share, may or may not be deemed marital property in the
divorce action, but it would be considered during the equitable distribution of the couple’s
property and in determining the amount of separate maintenance or alimony, if any, to which
she would be entitled. See Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994) (“If the
situation is such that an equitable division of marital property, considered with each party’s
nonmarital assets, leaves a deficit for one party, then alimony based on the value of
nonmarital assets should be considered.”) Therefore, we find that the substance of the
breach-of-contract claim is related to divorce and alimony and, thus, should be transferred
to the chancery court proceeding.
B. Fraud, Deceit, and Deception
¶17. In her claim for fraud, Ginger reiterates that she set over a substantial amount of her
inheritance, which otherwise would have been nonmarital property. See Hemsley v.
Hemsley, 639 So. 2d 909, 914 (Miss. 1994) (“Assets acquired or accumulated during the
9 course of a marriage are subject to equitable division unless it can be shown by proof that
such assets are attributable to one of the parties’ separate estates prior to the marriage or
outside the marriage.”); but see Johnson, 650 So. at 1286 (nonmarital assets may lose such
status if the asset is commingled with marital property or used for familial benefit). She
claims that “all of this commingling of assets and furnishing of money to Defendant
Germany was based on his false material misrepresentations that Plaintiff’s money and other
assets would be invested, safely kept and otherwise returned to Plaintiff upon the receipt and
distribution of the ‘tobacco money’. . . .”
¶18. Ginger seeks punitive damages “in a sum sufficient to deter such conduct [fraud,
deceit, and deception] in the future.” In support of her contention that her claim for fraud is
legal and not equitable, she cites this Court’s holding in Southern Leisure Homes v. Hardin,
742 So. 2d 1088 (Miss. 1999). In Hardin, the Hardins filed suit against Southern Leisure
Homes, Inc., in the Chancery Court of Washington County. Id. at 1089. The Hardins
alleged that Southern had breached a contract to sell a mobile home to the Hardins, that
Southern had entered the contract with full knowledge that the property already had been
contracted to be sold to another party, and that such actions were both negligent and
fraudulent. Id. The Hardins sought to recover both actual and punitive damages and
attorneys’ fees. Id. This Court found that, although acts of fraud may give rise to actions
in equity, the Hardins clearly were seeking a legal, rather than equitable remedy— $10,000
in actual damages and $100,000 in punitive damages. Id. at 1090.
¶19. The facts of the case sub judice are distinguishable from those in Hardin. In Hardin,
we concluded that the plaintiff’s claims amounted to “essentially a breach of contract claim
10 which is best heard in circuit court.” Id. But Hardin involved a commercial “arm’s length”
transaction, rather than an agreement between spouses concerning how the couple’s finances
would be managed. The remedy Ginger seeks for Robert’s alleged fraud – “the promised
equal share of the ‘tobacco money’”– further illustrates the equitable substance of her claim.
The fact that she is seeking punitive damages should not be the determining factor of whether
her claim is legal rather than equitable. See Tideway Oil Programs, Inc. v. Serio, 431 So. 2d
454, 464 (Miss. 1983) (Claims for punitive damages are legal and not equitable, but chancery
courts have actual subject-matter jurisdiction over punitive-damages claims). Ginger has
alleged essentially the same set of facts for her fraud claim as she did in her breach-of-
contract claim, which we find to be equitable in nature and related to the parties’ pending
divorce. Accordingly, we find that Ginger’s fraud claim is related to divorce and alimony
and should be transferred to the chancery court proceeding.
C. Constructive Trust and Unjust Enrichment
¶20. Ginger’s claim that Robert has been unjustly enriched and that the court should
impose a constructive trust upon certain assets is based on the same set of facts that give rise
to her other claims that she contends are “purely legal.” However, Ginger’s attorney
conceded at the hearing on the motion to transfer that her claims for constructive trust and
unjust enrichment are equitable claims. She, in fact, asserts that “equity should restore her
to her former financial position together with an equitable share of the tobacco money. . . .”
This Court has made it clear that the remedies of constructive trust and unjust enrichment are
equitable. See McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000) (“A constructive trust
is a fiction of equity created for the purpose of preventing unjust enrichment . . . .”)
11 (emphasis added); Koval v. Koval, 576 So. 2d 134, 136 (Miss. 1991) (Unjust enrichment is
an equitable remedy based on contract law) (emphasis added).
¶21. Ginger specifically requests an equitable portion of Robert’s assets. Ginger argues
that she is not seeking a divorce or alimony, and the fact that her claims are based on the
parties’ marriage and Robert leaving such marriage should not convert her claims to those
of “divorce and alimony.” However, Ginger has asserted that she is entitled to separate
maintenance and alleges the same set of facts for consideration in the chancery court matter.
Equitable distribution, alimony, and separate maintenance would be considered in the divorce
action. Our holding in Ferguson, 639 So. 2d 921, established the guidelines that chancellors
are to consider when dividing marital property. And alimony is considered only after the
marital property has been equitably divided and the chancellor determines that one spouse
is at a deficit. Johnson, 650 So. 2d at 1287. Although Ginger has not requested alimony per
se, her claims filed in the circuit court would have the same effect and serve the same
purpose that equitable distribution or an award of alimony would serve in the divorce matter;
therefore, to allow her to pursue a claim for unjust enrichment in circuit court based on the
same facts alleged in the chancery court matter potentially would lead to double recovery.
D. Conversion
¶22. Ginger claims that Robert converted her money to his use and that she has been
injured in excess of $1,000,000 because of this conversion. Ginger argues that this is a legal
claim and relies on this Court’s holding in Crosby, in which this Court found that
“conversion, which requires an intent to exercise dominion or control over goods which is
12 inconsistent with the true owner’s rights, is an intentional tort . . . . Tort claims are heard in
circuit court.” Crosby, 870 So. 2d at 1182 (citations omitted).
¶23. Ginger alleges in her complaint that the couple’s Jackson, Mississippi, home sold for
$2,225,000 and that Robert converted $1,163,515.53 from the sale of the home to his own
use, dominion, and control by endorsing the check with his signature and forging Ginger’s
signature. In a temporary hearing that occurred subsequent to the filing of Ginger’s civil
complaint, the chancellor addressed some of the allegations in Ginger’s civil complaint
related to the sale of the parties’ Jackson home.2 The chancellor found, contrary to the
allegations in Ginger’s complaint, that the sale of the home netted approximately $750,000
after fees, expenses, mortgage payoff and the payment of back taxes and that Ginger received
$126,000 from the proceeds of the home. With the remaining money, Robert paid American
Express $262,619, paid the Internal Revenue Service (IRS) $32,398, paid BankPlus $32,398,
paid his lawyer $15,000 in an unrelated domestic matter, and paid twelve mortgage payments
(including taxes and insurance) on the Arizona home totaling approximately $140,000.
¶24. Part of Ginger’s “conversion claim” includes a judicial sale of Robert’s wine
collection with an order setting over the proceeds of the sale to her. Ownership and
disposition of the wine collection, part of which was acquired during the marriage,
necessarily should be determined by the chancery court as part of the divorce action. Ginger
2 See Robert G. Germany v. Ginger M. Germany, No. G-2011-309, Judgment with Findings of Fact and Conclusions of Law (Hinds County Chancery Court, First Judicial District, Aug. 19, 2011).
13 has not asserted how the substance of her claim for conversion is a legal, rather than
equitable, claim.
¶25. We find that Ginger’s claim for conversion is really a request for the circuit court
judge to award her marital assets that ordinarily would be distributed in the divorce action.
E. Accounting
¶26. Ginger explains that Robert maintains dominion and control over most of the records
and documents reflecting disposition of the money throughout their marriage. She requests
access to the couple’s financial records and asserts that “[j]ustice and equity cannot be done
without access to such records and the formulation of a strict accounting reflecting the
disposition of said money together with the full disclosure of Defendant Germany’s
transactions, income, debts, expenditures, assets and liabilities from 1993 to present.”
¶27. The chancery court and circuit court have concurrent jurisdiction over “suits involving
inquiry into matters of mutual accounts.” Miss. Const. art. 6, § 161. However, if a plaintiff
brings suit in circuit court, that court may “transfer the cause to the chancery court, if it
appears that the accounts to be investigated are mutual and complicated.” Id. We find that
the facts of this case present such an instance where the circuit court’s transfer to chancery
court would be proper, as the accounts at issue are complicated. This conclusion is supported
by evidence already considered in the divorce proceeding. Robert and Ginger already have
filed financial disclosure statements (“8.05 forms”) in the pending divorce proceeding in
chancery court. See URCCC 8.05. The chancery court already has begun to analyze the
parties’ financial information, such as the sale of the Jackson home. The chancellor also has
considered the financial situations of the parties for the purpose of determining separate
14 maintenance.3 The chancery court therefore is in the best position to address Ginger’s claim
for accounting.
F. Intentional and Negligent Infliction of Emotional Distress
¶28. Ginger has asserted claims of intentional and negligent infliction of mental distress
against Robert. Ginger claims that Robert openly engaged in an extramarital affair with
Holly and that he flaunted the affair by taking trips using Ginger Germany’s American
Express credit card. She claims that Robert intended to punish her for complaining of
mounting debt by incurring additional debt with Defendant Morgan. Ginger also claims that
she suffered emotional distress due to Robert’s failure to warn that he was having an affair
or that he desired to divorce her. She seeks both compensatory and punitive damages for the
mental distress which she claims she has suffered as a result of his actions.
¶29. Robert argues that Ginger’s claim against him for intentional and negligent infliction
of mental distress are directly related to the chancery court’s determination of “fault or
misconduct” and are “matters in equity” or “divorce and alimony” and should be determined
by the chancery court.
¶30. It appears that Ginger’s claims for negligent and intentional infliction of mental
distress are substantially an attempt to recover punitive damages against Robert through a
claim akin to the tort of alienation of affection. “Where a husband [wife] is wrongfully
deprived of his [her] rights to the ‘services and companionship and consortium of his [her]
wife [husband],’ he [she] has a cause of action ‘against one who has interfered with his [her]
3 See supra n.1.
15 domestic relations.’” Camp v. Roberts, 462 So. 2d 726, 727 (Miss. 1985) (quoting Walter
v. Wilson, 228 So. 2d 597, 598 (Miss. 1969), overruled in part on other grounds by
Saunders v. Alford, 607 So. 2d 1214 (Miss. 1992)). Ginger certainly is entitled to bring the
claims of alienation of affection and negligent and intentional infliction of emotional distress
against Robert’s alleged paramour in circuit court; however, we have never recognized a
cause of action against one’s own spouse for failure to warn either of an affair with a
paramour or of the desire to obtain a divorce. Nevertheless, this claim clearly seeks a purely
legal remedy – monetary and punitive damages for the distress Ginger claims she suffered
because of Robert’s actions. Because the merits of this claim could not be addressed
sufficiently in a divorce action, we find that Ginger’s claim against Robert for intentional and
negligent infliction of emotional distress should be retained by the circuit court.
G. Alienation of Affection
¶31. Ginger requests a judgment against Holly Morgan for the sum of $2,000,000 as
actual and punitive damages for her claim of alienation of affection.4 This claim is properly
before the circuit court.
H. Injunctive Relief
¶32. Ginger asserts that she is entitled to injunctive relief in the form of temporary
restraining orders and/or preliminary injunctions. Specifically, she requests that Robert
employ all means necessary to satisfy IRS claims from his resources other than the wine
4 Although not an issue in this case, Ginger’s claim for alienation of affection against Holly Morgan may have to be severed from her claims for intentional and negligent infliction of emotional distress against Robert.
16 collection . . . or the sale of the marital home in Scottsdale, Arizona; that he be ordered to
satisfy the requirements of Lydian Bank and Trust and BankPlus regarding full payment or
service of the existing mortgages and homeowners’ association fees, taxes and insurance; that
he be ordered to pay all sums owed on the American Express account, which is in Ginger’s
name, and cease use of such; that he be enjoined from entering the Scottsdale home; and such
other injunctive relief as the court deems proper.
¶33. A determination of who is responsible for the parties’ accounts should be made in the
divorce action in chancery court. Ginger’s claim for injunctive relief is directly related to the
winding down of the marital relationship. This Court has held that injunctive relief is an
equitable remedy within the chancery court’s jurisdiction. Derr Plantation, Inc., 14 So. 3d
at 718 (citing Issaquena Warren Counties Land Co. v. Warren County, 996 So. 2d 747, 751
(Miss. 2008)). Accordingly, we find that the substance and the form of Ginger’s claim for
injunctive relief is equitable and is directly related to the distribution of marital property.
Therefore, the issue presented should be decided in the divorce action.
CONCLUSION
¶34. Ginger’s claims against Robert that are more closely related to the marital relationship
and financial affairs of the parties should be decided in chancery court. On the other hand,
Ginger’s claims against Robert for intentional and negligent infliction of emotional distress,
along with Ginger’s claims against Holly Morgan, are purely legal and are properly before
the circuit court. Therefore, we find that the trial court erred in denying the motion to sever
and transfer Ginger’s claims against Robert that are either equitable or relate to the pending
divorce to chancery court. Accordingly, we reverse the judgment of the trial court and
17 remand with instructions to transfer the equitable claims to the ongoing chancery court
action.
¶35. REVERSED AND REMANDED.
RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. KITCHENS, J., NOT PARTICIPATING.
COLEMAN, JUSTICE, DISSENTING:
¶36. On February 24, 2011, Ginger Germany filed a complaint in the Circuit Court of
Madison County, Mississippi, against her husband, Robert Germany, and her husband’s
alleged paramour. She asserted the following counts for relief against her husband: (1)
breach of contract; (2) fraud, deceit, and deception; (3) constructive trust and unjust
enrichment; (4) conversion; (5) a request for an accounting; (6) intentional infliction of
mental distress; (7) negligent infliction of emotional distress; and (8) a request for injunctive
relief. Because I disagree with the majority’s universal relegation of Mrs. Germany’s claims
to chancery court – where she will be deprived of her constitutional right to a jury trial
simply because her estranged husband filed a later complaint for divorce – I respectfully
dissent.
¶37. Pursuant to Article 3, Section 31 of the Mississippi Constitution, “The right of trial
by jury shall remain inviolate . . . .” Miss. Const. art. 3, § 31. Mrs. Germany’s complaint
contains claims for relief that belong in circuit court, including those for breach of contract
and the tort claims of intentional and negligent infliction of emotional distress. Southern
Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (¶ 6) (Miss. 1999) (breach of contract
claim is “best heard in circuit court”); McLean v. Green, 352 So. 2d 1312, 1314 (Miss. 1977)
18 (“courts of equity should not assume jurisdiction over claims for personal injury”). Because
of the constitutional right to a jury trial, chancery courts should not be given jurisdiction over
tort claims. McLean, 352 So. 2d at 1314.
¶38. The instant case is not one such as Issaquena Warren Counties Land Co., LLC v.
Warren County, 996 So. 2d 747 (Miss. 2008), where we justified chancery court jurisdiction
– and the coinciding denial of a jury trial to a party that wanted one – because damages
would be based on an ordinance, thereby obviating the need for a jury. Id. at 751 (¶ 11). If
tried, Mrs. Germany’s claims for breach of contract and infliction of emotional distress will
require a trier of fact to weigh evidence, make credibility determinations, and assess
damages, if any. The Constitution is clear that Mrs. Germany has the right to have a jury
make those determinations, and the right to a jury trial is infringed, i.e., violated, when cases
that otherwise would be decided by a jury are heard in chancery court. Southern Leisure,
742 So. 2d at 1090 (¶ 7). Even if there is some doubt as to the nature of Mrs. Germany’s
claims, they belong in circuit court. As we often have written, “[I]t is more appropriate for
a circuit court to hear equity claims than it is for a chancery court to hear actions at law since
circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.”
Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1182 (¶ 24) (Miss. 2004); Southern
Leisure, 742 So. 2d at 1090 (¶ 6); McDonald’s Corp. v. Robinson Indus., Inc., 592 So. 2d
927, 934 (Miss. 1991).
¶39. I remain unpersuaded by the majority’s reliance upon Article 6, Section 159 of the
Mississippi Constitution, which places “full jurisdiction” of divorce proceedings and
equitable matters in chancery court. After all – as the majority acknowledges – full
19 jurisdiction does not equal exclusive jurisdiction. As noted above, circuit courts certainly
may hear equitable claims. Also, neither Section 159 nor the statute upon which the majority
relies, Mississippi Code Section 93-5-7, applies to Mrs. Germany’s complaint as her
complaint was not one for divorce. Judicial economy is indeed served by having Mrs.
Germany’s claims adjudicated in the same forum as Mr. Germany’s, and it is a noble goal.
However, if the bill comes due and shows the price to be Mrs. Germany’s constitutional right
to a jury trial, I believe we must decline the bargain.
¶40. When considering a facial attack alleging lack of jurisdiction, we must consider all
allegations in the plaintiff’s case to be true. Schmidt v. Catholic Diocese of Biloxi, 18 So.
3d 814, 822 (¶ 15) (Miss. 2009). Unfortunately, the majority appears to go through great
pains to explain why Mrs. Germany’s allegations are untrue. To use her breach of contract
claim as an example, Mrs. Germany alleges that she married Mr. Germany after the couple
already had enjoyed a close, confidential relationship for eight years. Although the majority
writes that the Germanys entered into the alleged contract during marriage (Maj. at ¶ 12), the
complaint reads as follows:
Defendant Germany became precisely familiar with the nature and extent of [Mrs. Germany’s father’s] estate and Ginger’s entitlements as an heir at law. Robert G. Germany acted as Ginger’s attorney during the conservatorship proceedings. Dr. Murphree’s estate was liquidated and dispersed to Ginger and her two sisters. Ginger Murphree Germany received substantial wealth upon the disbursement of the estate and entrusted the management of said money to Defendant Germany with the agreement and trust that Defendant Germany would assist the Plaintiff in financial investment matters and particularly the purchase of real estate. This course of conduct was carried out for several years prior to the marriage of Plaintiff and Defendant Germany and continued subsequent to the marriage. . . .
20 (Emphasis added.) If Mrs. Germany’s claim for breach of contract is not a viable claim for
breach of contract, our rules of procedure contain vehicles, e.g., Rules of Civil Procedure
12(b)(6) and 56, for their dismissal. However, as shown above, if it is a claim for breach of
contract she has a constitutional right to a jury trial. Based on the allegations of her
complaint, which we are bound to accept as true, I believe she has stated viable claims as to
which she has a constitutional right to a jury trial.
¶41. Just as the public policy favoring a plaintiff’s right to choose the forum does not
outweigh the constitutional right to a jury trial, Crosby, 870 So. 2d at 1182 (¶ 22), I do not
believe the policy consideration of judicial economy outweighs Mrs. Germany’s right to a
jury trial. In my opinion, the circuit court has sole jurisdiction over Mrs. Germany’s breach
of contract and tort claims and shares concurrent jurisdiction over her claims for equitable
relief. Because the circuit court first obtained jurisdiction, it “retains jurisdiction over the
whole controversy to the exclusion or abatement” of Mr. Germany’s lawsuit. Scruggs,
Millette, Bozeman & Dent, P.A. v Merkel & Cocke, P.A., 804 So. 2d 1000, 1006 (¶ 15)
(Miss. 2001). Accordingly, I dissent.
DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.