IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00259-COA MARCI SKLAR TEAL APPELLANT

v. ELAINE JONES APPELLEE DATE OF JUDGMENT: 09/15/2014 TRIAL JUDGE: HON. M. JAMES CHANEY JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CHUCK MCRAE GALE NELSON W ALKER SETH CLAYTON LITTLE CHRISTOPHER ANTHONY BAMBACH ATTORNEYS FOR APPELLEE: MICHAEL JAMES MALOUF JR. LYNEILLE COUNTISS W ILLIAMS W I LLIAM EDW ARD BALLARD JAMES MATTHEW

LENDERMAN NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE TRIAL COURT DISPOSITION: DENIED APPELLANT’S MOTION FOR NEW TRIAL, JUDGMENT NOTW ITHSTANDING THE VERDICT, AND ADDITUR DISPOSITION: REVERSED AND REMANDED - 01/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. John Teal a nd Marci S k l a r T e a l were m arried on Decem b er 26, 2005. The couple divorced on June 2, 2008, on the g round of irreconcilable dif

f erences. Af

ter their divorce, Marci learned that John had a rom antic relationship with Elaine Jones (Lainey ) during their

m arriage. As a result, s he f iled a c om

plaint f or alienation of af

f ections against Lainey in theCircuit C ourt of W arren County

. At the close of t rial, the jury f ound in f avor of Marci on her claim f or alienation of af

f e ctions but awarded h e r no dam a ges. Thereaf ter, Marci f

iled a

m otion f or a new trial, judgm ent notwithstanding the verdict (JNOV), and additur, which the circuit court denied. ¶2. On appeal, Marci argues that t he trial court erred by instructing the jury that she had destroy ed evidence and that the jury should presum e that the m issing evi d e n c e w as

u nf avorable to her. She a lso challenges a series o f evidentiary rulings concern i n g p o s t

s eparation and post-divorce e vents and her subsequent bankruptcy

. W e f i nd no abuse o f discretion in the trial c ourt’s d ecisio ns to adm it or exclude evidence, but we hold that the spoliation instruction was e rroneous and that a new trial i s r equired. Accordingly , we reverse and rem and.
FACTS AND PROCEDURAL HISTORY ¶3. J o hn m et Marci in 2001. Marci was working as a bartender at t h e C y p r e s s C o v e Marina i n Venice, Louisiana, and John was the captain o f a charter f i shing boat. They began dating and eventually lived together. Marci h ad a son, Hunter, f rom a previous ma rriage. Hunter was three y ears old when Marci and John began dating. ¶4. In 2 004, John, Marci, and Hunter m oved to Texas f or J ohn to captain Dan Murphy ’s f ishing y acht. As the captain of Murphy ’s y a cht, John spent m ost of the y e a r t r a v eling to various f i shing tournam ents in p laces such as Berm uda and the Baham as. As a r esult, John

was hom e only t hree or f

our m onths out of the y ear. John and Marci m arried on Decem ber 26, 2005. Af

ter they m arried, John, Marci, and Hunter m oved to R o lling Fork, M ississippi,

2and John continued to captain Murphy ’s y acht. In January 2007, John a nd Marci purchased

t h e Onward Store, a historic country store in Rolling Fork. Marci operated t he s t o r e , a n d John assisted when he was hom e. ¶5. In A pril 2006, John m et L ainey at a f i shing tournam ent in the Baham as. T he next day , John, speaking in Italian, told L ainey that he had f allen in love with her a t f

irst sight. Lainey testif i ed that John “chased” her as they continued to see each other at f ishing tournam ents, while John testif

ied t hat Lainey pursued him

. In a ny event, Lainey knew that John was

m arried, but she adm itted that the two becam e rom antically involved in July

2006 and that their relationship continued until 2009. ¶6. In m id-2007, M a r c i “ f e l t s om ething was of

f ” in her m arriage a nd accused John of having an af

f air, but John denied that he was h a v i n g a n a f f a ir a n d m ade her t hink that she

was “ crazy ” f

or even suggesting the idea. Marci began seeing a psy chiatrist i n the l atter part of 2007, at least in part because of her concerns about her m arriage. ¶7. On January 14, 2 008, John was o n a hunting trip with Lainey and others when Marci call ed h im because she needed to discuss issues related to the Onward Store. The two argued, and John told her t hat he d id not love her and wanted a divorce. John did not return hom e a f ter the conversation. John and Marci f iled f o r a n irreconcilable dif

f erences divorce

on or about April 1, 2008, and a f inal judgm ent of divorce was entered on June 2, 2008. As part of their p roperty se t t l e m ent agreem ent, John a greed to pay Marci $25,000. Lainey ultim ately

provided John with $25,000 so that he could m a ke the pay m e nt. ¶8. Af ter J o hn asked f

or a divorce, Marci began dating and com m unicat i n g w i t h o t her

m en via Facebook, e ma i l , p h o n e , and text m e ssages. Day s bef ore her divorce was f

inal, 3Marci went on her f irst date with G ene B arnett. Gene and Marci c ontinued t o date af ter her divorce was f

inal. ¶9. O n M a y 2 7 , 2 0 0 8 , L a i n e y p u r c h ased approxim ately 200 acres of property near Edwards, Mississippi. Lainey a nd John ref erred to the p r operty as “W ildwood.” Lainey purchased the property “f or John to be closer to Hunter and also as a hurricane hiding hole
f o r [ her] and [ her] f

riends and f

am ily .” According t o Lainey , s he and John f irst discus s e d buy ing land together when John visited her in Kiln, Mississippi, in early 2008. During the trip, Lainey told John that she did not “ need a p iece of paper to be m arried,” but John insisted that he would “m a ke an honest wom an out of ” her. ¶10. Beginning in Septem ber 2008, John a nd M arci reconciled f or a f ew m o nths, although, unbeknownst to Marci, John was also still i n a r e l a t ionship w ith Lainey

. During their

r e c o n ciliation, Marci discovered t hat J ohn had a rom antic relationship with Lainey w h i l e t h e y

were m arried. Marci t estif ied that in the s pring of 2009, John lef t his e m ail account open on her com puter a t the Onward Store, and she f ound em a ils that m ade clea r t h a t h e h a d been having an af

f air with Lainey

. Af

ter she learned of the af

f air, Marci e nded her r econciliation with John. 1 On June 9, 2 0 10, Ma r c i f i l e d a c om

plaint against Lainey in circuit court f or alienation of

af f ections. ¶11. O n S e p t e mb e r 2 , 2011, Marci f iled f or chapter 7 bankruptcy

. As p ar t o f h e r bankruptcy f

ilings, Marci listed her com p laint against Lainey i n h er Statem ent of Financial
Af f airs, but she did not list the c laim as an asset in h er Sum m ary of Schedules. As a result,

1 L ain ey testif

ied th at h er relatio n sh ip w ith Jo h n en d ed aro u n d M arch 2 0 0 9 an d t h at th e last tim e sh e saw h i m w as at a f

ish in g to u rn am en t in B erm u d a in Ju ly

2 0 0 9

. 4the bankruptcy was adm inistered as a “no a sset” c ase, and an order discharging Marci’s debts

and closing her bankruptcy was entered on Decem

b er 21, 2011. ¶12. On Septem

ber 1 9, 2012, the bankruptcy trustee f i led a m otion t o r e o p e n M a r c i’s bankruptcy to pursue the com plaint as an a s s e t of her estate. T he bankruptcy court subsequently reopened the case and entered an order approving the em ploy m ent of Marci’s attorney , Chuck McRae, as special counsel f o r the trustee. ¶13. On August 2 2, 2012, Lainey ’s attorney sent M arci and her attorney a letter regarding her obligation to preserve electronically -stored evidence. On De c e mb e r 1 0, 2012, Lainey requested that Marci “produce f or i n s p e c t ion any and a ll com p uters, i n [ Marci’s] possession[ ,] custody or control, that [ Marci] used t o com m unicate electronically with John

. . . f rom the date of [ their] m a rriage to the present.” At Marci’s deposition on February 27, 2013, she testif

ied that she r egularly deleted em a i ls f rom John ( and others) t hroughout the

course of her m arriage, so she was no longer in possession of a n y em ails t hat they e xchanged during their m a rriage. She also t estif ied that she had t hrown away her personal laptop a y ear and a half earlier b ecause it was ruined af ter c of f ee was spilled on it. Finally , Marci testif ied that t he desktop c om

puter that she had used at work at the Onward Store w as i n storage. Her f orm er boy f

riend, Gene Barnett, had rented a storage unit f or the store’s equipm ent af ter the store closed. ¶14. On March 4, 2013, Lainey f iled a m otion to com

pel production of Marci’s com puters. On April 2, 2013, the c ourt held a hearing on Lainey ’s m otion, at which tim e t h e parties’ attorney s revealed that t hey h ad learned that Barnett h ad sold the d esktop com puter at som e point in 2012. Lainey ’s counsel stated that he needed to inspect the com puter b ecause it was
5his “understanding that as long as t he e-m a il h as been viewed on a particular com puter screen
at som e point in tim e, then there is a f orensic sof

tware program that y ou run on the c om puter and it is a high probability that y ou can pull it of f a nd get a copy of it.” At the conclusion of the hearing, the court ordered M a r c i t o produce all em ails between her and John and any

com puters in h er possession or control or, alternatively , provide a detailed explanation as to why the sam e could not be produced. The court r eserved r uling on Lainey ’s request that the jury be instructed on spoliation at trial. ¶15. On April 17, 2013, Marci f iled a m em o randum with the court explaining that Barnett took p ossession of e quipm ent f r om the Onward Store, including the desktop c o m puter that she used, af

ter the store went out of busin e s s . B a r n ett placed the com puter a nd other
equ i p me n t i n a storage unit and a dvertised it f or sale on Craigslist, b eginning o n July 15,
2012. By the end of July , Barnett had s o l d t he com puter f or $300. Marci’s m em orandum noted t hat the sale occurred bef ore Lainey ’s counsel r equested access to the com puter. The

m em orandum also s tated that Marci’s a ttorney had c ontacted Marci’s em ail provider (MSN) in an attem

pt to r etrieve any em ails between Marci and John, b u t M S N a d v i s ed that it

r e t a i n e d d eleted e m ails f or only sixty day s. On Novem ber 2 0, 2013, the court entered an order in which it continued to reserve a ruling on a jury instruction on spoliation. ¶16. The case proceeded to a t wo-day trial in Septem ber 2014. During the jury instruction conf erence, Lainey o f

f ered proposed instr u c tion 13-A on spoliation. T he proposed instruction stated: The Court instructs the jury that the Plaintif f has destroy ed ev i d e n c e i n this case. The P laintif

f h as destroy ed e m ails between herself a nd John Teal. The Plaint i f f has also destroy ed her com puter while this lawsuit w as pending.
6Theref ore, a presum

ption is now raised that the em ails and the c o m puter contained evidence that would have been unf a v orable to the Plaint i f

f

. T h is presum ption of u n f

avorability is not solely conf i ned to the destroy ed em a i ls and com puter. You are f

ree to draw a general negative inf erence against the Plaintif f because of

her act of

destroy ing evidence. ¶17. Marci objected to t h e i n s t r u c tion, arguing that there was no evidence o f spoliation. The court ruled t hat the jury should be i nstructed on spoliation, but the court struck the f inal two sentences of

the proposed instruction and gave the instruction as m o dif ied. ¶18. The jury returned a verdict f i n d i n g i n f

a v o r o f Marci o n h er claim f or alienation of af f ections. However, the jury awarded M arci $0 in dam ages. A f inal judgm ent was entered

on the v erdict on Se p t e mb e r 1 5 , 2014. M arci then f iled a tim ely m otion f

or a new trial, JNOV, and additur. The court subsequently denied Marci’s m otion, and she appealed.
DISCUSSION ¶19. On appeal, Marci raises six issues, which we reorder and ren u m b e r a s f ollows: (1) whether the circuit court erred by giving proposed jury in struction 13-A o n spoliation; (2) whether the circuit court erred by excluding evidenc e related to John’s relationship with Lainey af ter his divorce f

rom Marci; (3) whether the circuit court erred b y adm itting evidence of Marci’s relationships with other m e n between the date of her separation f rom John and the date of their divorce; (4) whether the circuit court erred by a dm itting evidence of her brief , post-divorce reconciliation with John; (5) whet h e r t h e c ircuit court erred by excluding evidence pertaining to her bankruptcy ; and (6) whether the circuit court e rred by deny ing her

m otion f or additur. W e conclude that the circuit court erred by granting t he i nstruction on spoliation and that Marci is entitled to a new t rial on this ground. W e also address Marci’s evidentiary

argum ents because the sam e issues would likely arise again i n a n ew trial. See
7Newell v. State , 17 5 S o . 3d 1260, 1268 (¶5) (Miss. 2015) (holding t hat an appellate court

should address evidentiary issues that are “likely to arise once a gain on rem and” (quoting Brooks v. S

tate , 7 63 S o. 2d 859, 864 (¶15) ( M iss. 2000))). W e conclude that the circuit court

com m itted no abuse of

discretion in its rulings on those issues.
I. Spoliation Instruction ¶20. Lainey f

irst a rgues that Marci is procedurally b arred f r om challenging the spoliation instruction b ecause it does not appear in the record on a ppeal, either as of

f e r ed by Lainey or

as m odif ied by the c ourt. M arci concedes that the i nstruction itself i s not in t h e record on appeal, and the c ourt’s instructions to the jury were n ot transcribed. However, Marci quoted the proposed instruction in her post-trial m otion f or a new trial, JNOV, and additur, which is part o f the record on appeal. And in response to Marci’s m otion, Lainey did not suggest that Marci had m isquoted the proposed instruction. Marci’s p ost-trial m otion indicates that the proposed instruction is in the circuit c ourt record at “Docket No. 128.” For r easons that

are not a pparent, Docket No. 128 was om itted f rom the record on appeal, 2 b ut i t i s publicly available via the Mississippi Electronic Courts (MEC) case m anagem ent sy stem , and it shows that Marci has accurately quoted the proposed instruction. ¶21. It was Marci’s obligation to exam ine the record a n d c e r t i f y t hat it w as correct and

com plete

. See Miller v. R.B. W all Oil Co. , 970 S o. 2d 127, 130-31 (¶¶9-11) (Miss. 2007).
T h e r e f o r e , we would be within our discretion to decline to r eview t his issue based on h e r f ailure to notice that the instruction was m issing and request its inclusion in th e r e c o r d on

2 S ee M .R .A .P . 1 0 (d ) (1 )(i) (“A ll j u ry in stru ctio n s sh all b e p laced in th e reco rd [ .] ”). 8a p p e a l

. See id. However, i t is also within our discretion to proceed with a revi e w o f t h e

issue, see id. , and we conclude that it is appropriate to do so in t his case. The content of the proposed instruction is readily available via MEC and cannot reasonably be disputed. Cf.,
e.g. , Brown v. Lippard , 350 F. App' x 879, 883 (5th Cir. 2009) (holding that an appellate court

m ay consider a prior trial transcript in the district court record i n a related case, although it

was not included i n the record on appeal); Jacques v. U.S. R.R. Ret. Bd. , 736 F.2d 34, 40 (2d Cir. 1 984) (holding that an appellate court m ay take j udicial notice of “a pleading and of f icial

court record of an inf

erior court in [ the appellate court’s] jurisdiction in a [ r e l ated] case”).
In addition, the trial c o urt’s m odif ications to t he instruction are c lear f rom the transcript. Accordingly , we will address the issue on the m erits. ¶22. Our standard of

review regarding jury

instructions is as f

ollows:
On appeal, this Court does n ot review jury instructions in i solation; rather, they are read as a whole to determ ine if the jury was properly

instructed. Def

ects in specif i c instructions do not require reversal where all instructions taken as a whole f airly —although not perf

ectly

— an n o u n c e t h e a p p l i c a b l e p r i m ary rules of law. However, if those instructions do not f airly or a dequately instruct the jury , we can and will reverse. Mitchell v. Barnes , 96 S o. 3 d 771, 775 ( ¶ 9) ( Miss. Ct. App. 2012) (quotation m arks om itted) (quoting Burton e

x rel. Bradford v. Barnett , 615 So. 2d 580, 5 83 (Miss. 1 9 9 3 ) ). “W hen analy zing the grant or ref

usal of a jury instruction, t wo questions s hould b e asked: Does the instruction c ontain a c orrect statem ent of l aw and is t he instruction w a r r a n t e d by the evidence? ” Beverly Enters. Inc. v. Reed , 961 So. 2d 40, 43 (¶8) (Miss. 2007). ¶23. Marci argues that the trial court erred by instructi n g t h e j u r y o n s poliation because there w as no evidence that she destroy ed evid e n c e . I n DeLaughter v. Lawrence County

9Hospi t a l , 601 So. 2d 818 (Miss. 1992), which involved a hospital’s loss of patient records

in a m e dical m alpractice/wrongf ul death case, the Mississippi S uprem e Court discussed how the i ssue of spoliation should be handled a t t rial. T he Court’s tr e a t me nt of t he issue is instructive, so we set it out in som e length:

This issue concerns w h a t t he jury was entitled to hear and what instruction should have been given regarding the reconstr ucted m edical records. The jury was entitled t o be told the original h ospital record would not be produced in court, as that was a relevant f act. The hospital had the duty to give an adequate explanation f or the absence o f the original hospital record. Theref ore, the jury was entitled to be told why the original hospital record was m issing, also a relevant f act. A s w i t h any o ther evidence, the explanation f or t he o riginal record’s absence m a y be f

ully s atisf y i n g either that it w as lost through no f ault of the hospital, that the hospital deliberately des t r o y e d it, or as in m ost cases, som ewhere i n between, thereby m aking it a jury issue. For exam ple, where the evidenc e is positive that the hospital had been destroy e d by f ire, such circum stance would adequately accou n t f or the loss of the original m edical record without f

ault attributable to the hospital, and there would be no reason f or the jury to be instru c t e d on a presum ption or inf

erence arising f

rom the loss.
On the other hand, where the evidence i s p o sitive that the hospital deliberately destroy ed the original m edical record or where a record required by law to be kept is unavailable due to negligence, a n inf erence a rises that the record contained inf

orm a tion u nf

avorable to the h ospital, a nd the jury should be so instructed.

. . . L ikewise, where the e v idence is s o m ewhere in between such that the jury c ould f

i nd that the h ospital either had or had not deliberately or negligently destroy ed t he original m edical r e c ord, the jury should be instructed to take this into account. Thus, where t h e evidence regarding the m issing original m edical records i s s uch that t he jury is entitled to an i nstruction, the i nstruction should require the jury to f

irst determ ine w hether reasonable explanation f or the loss of the m issing original m edical record has been p resented by the h o s p ital. Should the jury deter mi n e f r o m the explanation provided that the loss of the o r i g inal m edical record was not in any w ay attributable to the deliberate o r negligent actions of the hospital, the jury could n o t inf e r that the m issing original m e dical record contained i nf orm ation u nf

avorable t o the h ospital.
1 0However, should the jury determ i ne f rom the explanation p rovided that the loss of the o riginal m edical record was del i berately o r negligently b rought about by the a ctions o f the hospital, the jury could inf er that t he m issing original m e dical record contained inf orm ation unf

a vorable to the hospital. Id. at 821-22. ¶24. In the present case, the only evidence of the a l leged s poliation that was presented to the jury was the f ollowing testim ony

by Marci on cross-exam ination: Q. Okay

. A nd w e had asked f or [ em ails b etween y o u and J ohn], and y ou said they were on y our com

puter; is that correct?
A. I guess. If

y ou say I said it. Q. And y ou said t hat y ou could get them , that y o ur f riend Gene Barnett had put them

in storage f

or y ou?
A.

. . . [ D]uring m y deposition, y ou asked m e about a com puter [ f rom the Onward Store]

. . . . And I said

. . . that Gene Barnett had that c o m puter because [ he placed] all of m y stuf f in s t orage when I closed the store. He h ad a storage unit f

or m e, and that’s where I w as keepi n g a l l my stuf f

. Q. Okay

. And when we asked y ou to produce the com puter, y ou said y ou would produce it, didn’t y ou?
A. I would try

to . . . . Q. A nd then when we f inally asked y o u t o produce i t, y ou said

. . . Gen e Barnett, y our f

riend, had sold y our c om puter, disposed of it without y our knowledge?
A.

. . . I d on’t k

now if I told y ’ all that, but I do k now that h e sold i t

. T o whom , I d o n’t know, or where or when o r w h atever. But

. . . whatever was lef t in the storage unit, I t old him h e could keep the m oney or w h a t e v e r i t was, j ust dispose of it so it paid him back f or him r enti n g the storage unit f

or m e. Q. Okay

. But he never gave y ou a ny m oney f or the sale of that com

p uter?
A. I told him

to keep the m oney . . . f

or the pay m ent of the storage unit.
1 1Q. Okay

. B ut y ou agree with m e that there’s no c o m puter, there’s n o way we’re going to get y our e-m a i ls of f of i t; isn’t that true?
A. I guess not.

. . . . Q. Now there were som e e-m a ils earlier between y o u and John Teal t hat y ou deleted f

rom the com puter, is that --
A.

. . . I delete all m y em ails I get f rom a ny b ody , m y grandparents, m y mo t h e r , my b r other. I don’t f eel n o need to keep any e-m ails u nless there’s som ething im

portant in it. Q. But those can be retrieved f rom a hard d

rive if y ou’ve g ot the com

puter; can they not?
A. If y o u have the com

puter, I’m assum ing y es. ¶25. Thus, the jury h e ard testim ony that Marci had deleted “ som e e-m ails e arlier between [ her] and John,” as it was her routine practice t o delete em ails once she had read them

. The jury also heard that Marci’s work com puter had been s old at som e point. H owever, the jury

was presented with n o evidence as to when the em ails were deleted or the c o m puter was sold. ¶26. Nonetheless, the jury was instructed as f

o llows:
T h e C o u r t instructs the j ury that the Plaintif f h as destroy ed evidence in t his case. The Plaintif

f has destroy ed em ails b etween herself and John Teal. The Plaintif f has a lso destroy ed her com pute r while this lawsuit w as pending. Theref ore, a presum

ption is now raised that the em ails and the c o m puter contained evidence that would have been unf avorable to the Plaintif

f

. ¶27. Marci a rgues that the evidence did not support this i nstruction. It i s elem entary that

a jury instruction is “to b e granted only where evidence has been presented which supports the instruction.” DeLaughter , 601 So. 2d a t 824. We a g r e e w i th Marci that the evidence presented at trial was insuf f icient to show that she had deliberately or negligently destroy ed

1 2em ails or her com p ut e r a t a tim e when she k new or should have known that they m ight contain evidence relevant t o this case. Marci’s deletion of em ails w hile she a nd John were

m arried cannot s upport a spoliation instruction because the evidence was undisputed that she

was u naware of John’s af

f a ir with Lainey at that t im e. Theref o re, the second sentence of the instruction s hould not have been given. As to the third sentence, no evidence was presented

at trial that Marci “destroy ed her c o mp u t e r . ” If this ref e rs to t he personal laptop that she threw away a f

ter c of f e e was spilled on it, there w as s im ply no m ention of the incident at trial.
If t his ref ers to the d esktop com

p uter f rom the O nward Store, then it m isstates the e vidence, which was that Barnett sold the com puter, not that Marci “destroy ed” i t. Furtherm ore, there was no evidence presented at trial as to when the com puter was sold. ¶28. As disc u s s e d a b ove, pretrial proceedings i n t he case provide som e additional detail

on the issue. H owever, evidence that was not presented t o the jury cannot provide a basis f or such an instruction. As the DeLaughter Court explained, “ w here the evidence regarding the

m issing [ evidence] is such t hat the jury is e ntitled to an i nstruction, the instruction should require the jury t o f

i rst determ ine whether reasonable explanation f or the loss of the m issing [ e v i d e n c e ] h as been presented.” Id. at 822 (em phasis added); s ee a lso, e.g. , Brennan v. W ebb , 7 2 9 So. 2d 244, 2 50 (¶22) (Miss. Ct. App. 1998) ( “W hen the e vidence a t trial does not support an of

f ered jury instruction, the instruction is im proper and should n ot be g ranted.”). Theref ore, e vidence or argum ent f rom a pretr i a l h e a ring is not a basis f or a spoliation instruction. Rather, s uf

f icient evidence of

the circum stances of the m issing evidence m ust be presented at trial so that the jury m ay decide the signif

icance of its absence. ¶29. Furth e r mo r e , t h e “ s p o l i a t i o n inf erence” “entitles the non-of f ending party to an
1 3instruction that the j ury may inf e r that the spoliated evidence i s unf avorable to the of

f ending
p arty .” Dowdle Butane Gas Co. v. Moore , 831 So. 2d 1124, 1127 (¶8 ) ( Miss. 2002) (em phasis added) (citing DeLaughter , 601 So. 2d at 822). That is, the jury m ust be instructed that i t is p erm itted—but not required—to draw that inf erence, depending on its assessm ent of the circum stances of the loss of the evidence. T he instruction given in t his case f ailed to instruct the jury

of its role in deciding whether to draw the perm itted inf erence. 3 ¶30. T o s u mma r i z e , we hold t hat the instruction given at trial was im proper b e c a u s e Marci’s deletion of em a ils bef ore she discovered John’s af f air wi th Lainey cannot am ount
to s poliation; because n o evidence was presented at t rial that she “destr o y e d ” a c o m puter; because the instruction was, in ef f ect, a perem

pt ory instruction—based on evidence never
p r e s e nted to t he jury

—that Marci spoliated evidence; and b ecause the instruction requir e d the jury t o presum e that the evidence was unf avorable, r ather than sim ply p e r mitting that

3 In em p h asizin g t h e j u ry ’s ro le i n ev alu atin g alleg ed sp o liatio n , w e also em p h asize th at th e im

p o rtan ce o f th e m issin g ev id e n ce in t h is case is f ar less clear t h a n in p rio r M ississip p i S u p rem e C o u r t c ases ad d ressin g t h e issu e o f sp o liatio n . F o r ex a m p le, in D e L a u g h ter , af

ter a p atien t’s d e ath , th e h o sp ital lo st th e p atien t’s h o sp ital reco rd

— an o b v io u s a n d “ in t eg ral co m p o n en t in an y m a l p ractice actio n ,” w h ic h t h e h o sp ital w as req u ired b y law to m ain tain

. D e L a u g h t er , 6 0 1 S o . 2 d a t 8 2 1

. A n d in T h o m a s v. Isle o

f C a p ri C a sin o , 7 8 1 S o . 2 d 1 2 5 (M iss. 2 0 0 1 ), a casin o f ailed to p reserv e a co m

p u ter cen tral p ro cessin g u n it th at “w o u ld h av e p ro v id ed co n clu siv e ev id en ce w h eth er [ a p a tro n ] actu ally w o n [ a d isp u ted m

u l t i

- mi l l i o n -d o llar slo t] j ack p o t.” Id

. at 1 2 9 (¶1 7 )

. In d eed , th e casin o p erm i tted th e relev an t d ata t o b e o v erw ritten w h ile th e case w a s p e n d i n g b ef o re th e M ississip p i G am i n g C o m m issio n . S ee i d

. at 1 2 6

- 2 7 (¶2 ). H ere, in co n t rast, th e ev id en ce in q u estio n co n sists o f tw o co m p u t ers th a t m ay o r m ay n o t h a v e co n tain ed em ails b etw een Jo h n an d M arci. L ain ey asserts th at “ p resu m ab ly th ese em ails w o u ld sh e d lig h t o n th e tru e state o f Jo h n an d M a rci’s m arriag e,” w h ich L ain e y arg u e s “w as n o t as p erf ect a s M arci w o u ld h av e th e j u ry b eliev e . ” H o w e v e r, it d o es n o t ap p ear th at M arci claim ed th at h e r m arriag e w a s “ p e rf ect,” an d th e j u ry

h eard am p le ev id en ce th at it w as n o t, ev en w ith o u t th e d eleted em ails. 1 4inf

erence. Further, we do not believe that the instruction can be deem ed harm less. As the
Texas Suprem e Court has recognized, an im p r o p e r “ spoliation instruction is p articularly likely to cause harm ” b ecause “its very purpose is to ‘nudge’ or ‘tilt’ the jury .” W al-Mart
Stores I nc. v. Johnson , 106 S.W .3d 718, 724 (Tex. 2003). I t was p rejudicial to Marci f or the jurors to be instructed that she had “destroy ed evidence” and that they should presum e that such evidence “would have been unf avorable” to her. Given the lim ited evidence actually presented on this i ssue at trial, the extent and seriousness of Marci’s alleged wrongdoing was largely lef

t t o the jury ’s im agination. The instruction could have contributed to t he jury ’s decision not to award Marci dam ages, despite f inding that L a i n e y intentionally alienated John’s af f ections. Under the circum stances, we cannot deem the error harm less. ¶31. Because the issue m ay arise again i n a new trial, w e com m ent brief ly on t he evidence presented and argum ents m ade during pre t r i a l p r oceedings. As discussed above, Marci’s deletion of t he em ails bef ore she was a ware of John’s a f f air w as not spoliation of evidence because at that tim e she had no reason to anticipate a lawsuit, m uch less that Lainey

m ight seek t o discover the em ails as evidence. Thus, the subsequent disposal of Marci’s laptop or sale of her desktop m ight be spoliation of evidence only i f there is reason t o believe that the deleted em ails still existed on t he com puters’ hard drives when t hey lef t Marci’s p ossession

or c ontrol. Prior to trial, Lainey ’s counsel stated t hat it was his “understanding that as long

a s t h e e - m ail has been viewed on a particular com puter screen a t som e point i n t im e, the n there is a f

orensic sof

tware program that y ou run on t he com p uter and it i s a high probability that y ou can pull it of

f and get a c o p y of it.” However, s om ething m ore than counsel’s understanding is necessary to establish that em ails f rom a web-based e m ail account f easibly
1 5can be recovered f rom a com

puter’s hard drive y e ars af t er they were deleted. This is not a

m atter of c om m on k

nowledge that can be assum ed. If on rem and Lainey p resents evidence that such em ails could h ave been recovered and evidence of the tim ing of Marci’s disposal of her com

puters, then it would be within the discretion of t he c ircuit court to grant her an instruction on spoliation. However, any instruction should be lim ited to the disposal of the

com puters (not t he deletion of t he e ma i l s ) ; “the i nstruction should require the jury to f irst determ ine whether reasonable explanation fo r t h e l o s s o f t h e [c o m puters] has been p resented” ( DeLaughter , 6 0 1 So. 2d at 822); a nd the instruction should s tate “that the jury may inf er that the spoliated e vidence i s u nf avorable to [ Marci].” Dowdl e B u t a n e G as Co. , 831 So. 2 d at 1127 (¶8) (em

phasis added).
II. Evidentiary Rulings ¶32. “ T h e s t a n d a r d of review r egarding adm ission or exclusion of evidence is abuse o f discretion.” W

hitten v
. Cox , 799 So. 2d 1, 13 (¶27) (Miss. 2000) (brackets om itted) (quoting Floyd v. C ity of Crystal S prings , 749 So. 2d 110, 113 (¶11) (Miss. 1999)). For the reasons that f ollow, we conclude that t he c ircuit judge did not abuse his discretion by (a) excluding evidence related to J ohn’s continued relationship with Lainey af ter h is d ivorce f

rom Marci; (b) adm itting evidence of Marci’s post-separation/pre-divorce relationships w ith other m en; (c) adm itting evidence o f Marci’s reconciliation with J ohn; or (d) excluding evidence related to Marci’s bankruptcy

.

A. John’s Post-Divorce Relationship w ith Lainey ¶33. Marci argues t h a t t h e trial court abused its discretion by granting Lainey ’s pretrial

m otion in lim i ne (1) to exclude em ails sent between L ainey and John af ter the date of John
1 6and Marci’s divorce and (2) to exclude evidence of expenses that Lainey paid f or John af ter
t h e sam e date. 4 Marci argues t hat this ruling w as “inconsistent” with t he court’ s r u l i n g s adm itting evidenc e o f h e r own post-separation relationships w ith other m en a nd her postdivorce reconciliation w ith John. W e will address those r ulings separately b e l o w , b ut we f ind no abuse o f discretion i n the court’s exclusion of evidence r egarding John’s post-divorce relationship with L ainey

. Marci does not dispute that she and John were f inally divorced and his a f f ections had been alienated by that point. Lainey ’s continued re l a t i o n s h ip with John at that point was neither tortious nor relevant.

B. Marci’s Post-Separation/Pre-Divorce Com m unications and Relationships w ith Other Men ¶34. Marci next argues that the trial court abused its discretion by deny ing her m otion in lim ine to e xclude evidence of her com m unications and relationships with other m en af ter her separation f

rom John i n J a nuary 2008 but prior to their divorce o n June 2, 2008. At trial, Lainey presented e vidence that Marci spent s i gnif icant periods o f tim e talking to and texting with o ther m e n between March and June 2, 2008. Marci a d m itted to dating, k i s s i n g , a n d

e ven spending the night with s om e of these m e n, although she d enied having a s e x u a l relationship with any of them prior to the date that her divorce becam e f inal; she also testif

ied that som e of the m en were just f riends of hers. Marci contends that s u c h e v i dence was irrelevant and unf

airly p rejudicial. Lainey , h owever, argued that it was relevant to show that Marci was r eady to m ove on f rom the m a r r i a g e and to rebut Marci’s claim that she was

4 T h e co u rt’s o rd er n o ted th at so m e o f t h e em ails m ig h t b e ad m issib le at trial f o r p u rp o ses o f

im p each m en t. 1 7distraught and distressed over th e im pending d ivorce. The trial court d id not abuse its discretion by a dm itting evidence of Marci’s pre-divorce conduct. See Fitch v. Valentine , 959
So. 2 d 1012, 1022 (¶25) (Miss. 2007) ( “ T h e k e y t i m e f ram e f or the tort of alienation of af f ections is that of

the m arriage . . . .”).
C. Marci’s Post-Divorce Reconciliation w ith John ¶35. Marci next argues that t he trial c o u r t s h o u l d have excluded evidence of her postdivorce reconciliation with John. The trial c ourt did not abuse its discretion by allowing lim ited testim ony regarding the b r ief reconciliation. At least som e testim ony on the subject

was n e c e s s ary to explain h ow Marci becam e aware o f John’s af f air with Lainey

. Further, Lainey was entitled to c ross-exam ine John about the f act that he c ontinued to lie t o and have relationships w ith both wom en during the r econcilia t i o n , which w as r elevant to his

c r e d i bility

. Lainey was a lso entitled to cross-exam ine Marci about how s he cam e int o possession of em ails b etween Lainey and John. Marci testif ied that she discovered the em ails during her post-divorce reconciliation with John, but t he em ails were actually f orwarded to her f rom Jo h n ’ s e m ail account in January 2010, several m o nths af ter the r econciliation ended. Marci testif

ied that she “hacked” i nto John’s account and f orwarded the em a i ls to herself , but Lainey ’ s counsel argued t hat the evidence indicated collusion b etween John a nd Marci. This

was a p erm issible argum e nt, and the trial court did not abuse its discr e t i on by allowing lim ited evidence of

the reconciliation.
D. Marci’s Bankruptcy ¶36. Prior to t rial, the court ruled that “the f act that [ Marci] f

iled a bankruptcy petition is adm issible, and depending on the proposed testim ony , the bankruptcy trustee m a y testif y at
1 8trial,” but the court e xcluded “all other evidence r egarding [ Marci’s] bankruptcy

. ” At trial,

the court sustained a n objection to the f ollowing question by Marci’s counsel: “[ A]s we stand here now, . . . w hen would [ Marci]

. . . be able to get a n y m oney out of this c ase? ” The trial

c o u r t did not abuse its d iscretion. Marci m ay put on evidence o f any ty pe of d a ma g e s proxim ately caused by Lainey ’s conduct in the alienation of John’s af f ections, s ee Gorman

v. McMahon , 7 92 So. 2d 307, 314-16 (¶¶18-23) (Miss. Ct. App. 2001), but the trial court properly prevented her f

rom telling the jurors h ow large a verdict t hey needed to render in order f o r her “to get any

m oney out of this case.”
CONCLUSION ¶37. For the f

oregoing reasons, we a gree with Marci that the spoliation instruction lacked support i n the evidence presented at trial, was erroneous, and w as prejudicial. Accordingly , although we f

ind no abuse of d i s cretion in any of the trial court’s challenged evidentiary rulings, we reverse and rem a nd f or a new trial. ¶38. THE JUDGMENT OF THE CIRCUIT COURT O F W A R R EN COUNTY IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT W ITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. LEE, C.J., GRIFFIS, P .J., BARNES, I SHEE, CAR L T O N , F AIR AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS I N P A R T A N D IN THE RESULT WITHOUT SEPARATE WRITTEN O PINION. WESTBROOKS, J., NOT PARTICIPATING.

1 9