Trevor Lee Watts, Individually and as Representative of the Heir at Law of Kimberly Watts v. Thomas Dale Watts

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00321-COA

TREVOR LEE WATTS, INDIVIDUALLY AND APPELLANT
AS REPRESENTATIVE OF THE HEIR AT LAW
OF KIMBERLY WATTS, DECEASED

v.

THOMAS DALE WATTS APPELLEE

DATE OF JUDGMENT: 02/22/2021
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: TIM C. HOLLEMAN
ATTORNEYS FOR APPELLEE: ROSS DOUGLAS VAUGHN
RICHARD ANTHONY FILCE
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 11/15/2022
MOTION FOR REHEARING FILED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Trevor Lee Watts (Trevor) sued his father, Thomas Dale Watts (Thomas), for the

wrongful death of his mother, Kimberly Watts (Kimberly), after she was found dead in 2014.

Thomas filed a motion for summary judgment, which the trial court granted. Trevor appeals.

After a review of the record, this Court holds that Trevor presented sufficient evidence to

establish a genuine issue of material fact as to whether Thomas killed Kimberly.

Accordingly, we reverse the order granting summary judgment and remand this case to the

trial court.

FACTS
¶2. Kimberly Watts was murdered on the night of November 10 or 11, 2014, in her home.

After not reporting to work, her brother-in-law George Bass found her body. Kimberly had

been stabbed and strangled. A homicide investigation ensued but apparently was never

concluded. No arrest was ever made, no criminal charges were ever filed, and no one was

ever indicted. Thomas was questioned as part of the investigation but invoked his Fifth

Amendment right against self-incrimination.

¶3. Kimberly and Thomas were married in 1996. They had one child, Trevor. In 2008

Thomas filed for divorce. In 2009 they agreed to an irreconcilable differences divorce but

left some issues for the chancellor to decide. After a two-day trial, the chancellor awarded

joint physical and legal custody, ordered Thomas to pay to Kimberly $332 in child support

each month, $1,000 a month in periodic alimony for the remainder of Kimberly’s life, and

$15,000 to Kimberly in attorney’s fees. Thomas appealed the chancellor’s decision.

¶4. In 2012, this Court rendered an opinion addressing the issues in Thomas and

Kimberly’s contentious divorce. Watts v. Watts, 99 So. 3d 751 (Miss. Ct. App. 2012). In

that appeal, this Court noted that Thomas had a history of prescription drug abuse and had

been to a rehabilitation facility two times before his marriage with Kimberly ended. Id. at

755 (¶¶2-3). Thomas challenged the chancellor’s decision requiring him to pay Kimberly

permanent alimony, the award of joint custody, and the requirement for him to pay

Kimberly’s attorney’s fees. Id. at 756 (¶6). This Court affirmed the judgment of the

chancellor in all respects. Id. at 761-62, 765 (¶¶28, 33, 42).

¶5. On November 8, 2017, Trevor filed a wrongful death lawsuit against Thomas and

2
alleged that on or about November 10, 2014, Thomas entered Kimberly’s home and

“proximately caused” the “death” of Kimberly. As to the allegations of killing Kimberly,

Thomas “denied” those in his answer.

¶6. Written discovery was conducted. In his response to interrogatories, Thomas asserted

his Fifth Amendment right and refused to answer the majority of questions or objected to the

scope of the question. For example, when asked about all addresses where he has resided

since January 1, 2014, Thomas objected to the scope and invoked his Fifth Amendment right

to decline to answer.

¶7. Depositions were taken on May 9, 2019. Through their respective attorneys, Thomas

took Trevor’s deposition, and Trevor took Thomas’ deposition. In Thomas’ deposition,

Thomas began answering questions about his work history and admitted his license was at

one time “restricted” due to “drug abuse.” He admitted that the drug abuse problem also

resulted in two separate medical-license suspensions. Thomas also admitted to knowing

where Kimberly lived in Long Beach, Mississippi, after their divorce and stated he had been

there on “several occasions” to “drop Trevor off and pick up stuff and drop off stuff for

Trevor.” When asked how many times he had “driven by her home when on your motorcycle

before November 10 or 11th 2014,” his attorney objected. Thomas responded, “On

Counsel’s advice, I invoke my fifth amendment right not to answer.” Thomas then invoked

his Fifth Amendment right not to answer most questions asked after that point. He even

invoked his right not to answer when asked if he owned a motorcycle on the night Kimberly

was murdered.

3
¶8. On August 26, 2019, Thomas filed a motion for summary judgment. He alleged there

was “no genuine issue of material fact to preclude summary judgment on all counts of

Plaintiff’s complaint.” Thomas did not attach any exhibits in support of the motion. He did

incorporate his memorandum of law and authorities “as if fully set forth herein.” The

memorandum, which was filed on the same day, asserted that “this motion is directed to the

absence of any proof” that Thomas “caused or contributed” Kimberly’s death. Further, he

asserted “this lawsuit fails due to an absence of proof the Defendant was ever in the presence

of Kimberly Watts on the date of her death.” Trevor filed a response and attached the

following: his deposition, Thomas’ deposition, the affidavit of Kimberly’s brother-in-law

George Bass, the Court of Appeals opinion in the divorce case, and Thomas’ appellate brief

filed in that case.

¶9. George Bass’ affidavit, claims that “[p]rior to her murder, . . . Kim expressed fear of

Thomas Watts and specifically she feared he would kill her one day.” Bass also stated that

“Thomas Watts [was] the only person Kim ever expressed a fear of him murdering her.”1

Bass discovered Kimberly’s body and explained there was no evidence of “forced entry, no

evidence of burglary, sexual assault or robbery.” Kimberly’s purse was still on her shoulder,

and nothing was missing from the home. Bass stated that “Kim normally entered her home

through the garage but on this date she had entered the front door, which was strange.” Bass

1
This hearsay statement may be inadmissible at trial as hearsay and, as such, could
not be considered during the summary judgment phase. See Ill. Cent. R.R. Co. v. Jackson,
179 So. 3d 1037, 1043 (¶14) (Miss. 2015) (“[T]he content of summary-judgment evidence
must be admissible at trial although the evidence may be in a form, such as an affidavit, that
would not be admissible.”). The parties at trial, however, would have an opportunity to
litigate the admissibility of that statement.

4
continued, “We later discovered that someone had turned off the circuit breaker so the garage

door would not open.” Further, Bass stated, “If [Kimberly] had entered the house through

the garage, there would [be] no place for an assailant to hide. However, if you enter through

the front door there were places to conceal yourself.” Bass also stated that a bag was found

“at the back door with bleach and wipes in it.” Bass stated neither this bag nor its contents

belonged to Kimberly.

¶10. In Trevor’s deposition, he stated that his parents’ relationship was “strained” after they

got divorced. Trevor testified that Thomas used his “stature” as a “threatening or dismissive

presence” toward Kimberly. Trevor stated that he saw Thomas “grab [Kimberly’s] hair one

time, grabbed her by the head.” Trevor stated that the night Thomas grabbed Kimberly’s

head was the same night that Thomas “put a hole through . . . the wall.” Trevor explained

that this event occurred while Thomas and Kimberly were married, and the police were

called in response to the altercation. Trevor explained that “police were . . . called to [his]

house on more than on that one occasion.”

¶11. Trevor stated in his deposition that after he found out his mother died, he came home

and stayed with Thomas. He stated that Thomas did “not look[] upset or distraught . . . .”

Trevor testified that he noticed “scratches” on both of Thomas’ hands that night. Trevor

stated that when he asked his father about the scratches, Thomas said that they came from

a “grinding wheel.” Trevor described the scratches as “gouges” and stated that they were

“deep enough to leave scabs.” Trevor claimed that the scratches looked like they were made

from fingernails (on the tops of both hands) and in a crisscross pattern and that the scratches

5
were “not super healed.”

¶12. Further, Trevor explained that a few days later, prior to Kimberly’s funeral, he had set

up a meeting with Thomas “at a conference room at First Baptist Long Beach Church for the

purpose of discussing what happened to my mother.” Trevor described the conversation:

And then I started to ask him things along the lines of, well, what were you
doing during this time? . . . Why he didn’t seem more upset . . . . For instance,
the question about my mother’s death, he said nothing at first, and then
followed up with eventually, [“]is this something that your mother’s side of the
family put in your head? Is this something they want you to believe? Are they
making you ask these questions?[”] All just diversional answers. Everything
was not a yes or a no. Everything turned into a gray area.

During Trevor’s deposition, he answered the following questions about the exchange with

his father:

Q: Did he deny it?

A: No

....

Q: Did he say, what the hell are you talking about? How could you say that
about me?

A: No.

Q: He just stared back at you?

A: Correct

Q: He didn’t deny it, didn’t do anything?

A: No

....

Q: And he never has answered that question to this day, has he, about if he

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killed her?

A: No he has not. Everything is just a blank stare.

Trevor stated that he learned from an investigator in the Long Beach Police Department that

Thomas had “turned off his cell phone during the time of the murder which prevented his

whereabouts from being tracked.” Trevor explained that Thomas’ ability to pick a lock “far

exceed[ed] the average ability of a normal person.” Trevor claimed that Thomas taught him

how to pick a lock at a young age and that he has seen Thomas pick locks.

¶13. Trevor attached Thomas’ deposition to his response. In addition to the circumstantial

evidence, Trevor argues a closer look at some instances of Thomas’ invocation of his Fifth

Amendment right during his deposition further creates a genuine issue of material fact:

Q. On the night of November 10th of 2014, from approximately 6:00 p.m.
until midnight, can you tell me your whereabouts?

A. I invoke my Fifth Amendment right not to answer.

Q. On the night of November 10th of 2014, from 12:01 a.m. until
approximately 7:30 a.m. that morning, can you tell me your
whereabouts?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you murder your wife, Kimberly Watts, on or about November 10th
of 2014?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you murder your wife, Kimberly Watts, on or about the early morning of
November 11th of 2014?[2]

2
Kimberly was last seen alive on November 10, 2014, and was found deceased on
November 11, 2014. The exact time of Kimberly’s death is unknown, which is why both
dates were asked about in the deposition.

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A. I invoke my Fifth Amendment right not to answer.

Q. Did you stab Kimberly Watts in the chest two times on or about
November 10th or 11th of 2014 at her home where you knew she lived?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you strangle Kimberly Watts to death on or about November 10th,
2014?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you strangle Kimberly Watts to death on or about November 11th
of 2014?

A. I invoke my Fifth Amendment right not to answer.

Q. Can you explain to me how you had scratches on your hands after the
murder of your ex-wife Kimberly Watts on or about November 10th or
11th of 2014?

A. I invoke my Fifth Amendment right not to answer.

Q. Did Kimberly Watts scratch you on your hands when you were in the
process of strangling and/or stabbing her on or about November 10th
or 11th, 2014?

A. I invoke my Fifth Amendment right not to answer.

Q. Do you admit that when Trevor asked you directly whether or not
you had murdered or killed his mother that you refused to answer?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you pick the lock of Kimberly Watts’ home on or about November
10th or 11th, 2014, and then hide in the home until she arrived so that
you could then murder her?

A. I invoke my Fifth Amendment right not to answer.

Q. Did you turn off the breaker to the garage door so that she would have

8
to enter the front door rather than through the garage so that you could
murder her on or about November 10th or 11th, 2014?

A. I invoke my Fifth Amendment right not to answer.

(Emphasis added) (interjections omitted). Essentially, every question asked to Thomas in an

attempt to obtain evidence against Thomas was deflected by Thomas’ assertion of the Fifth

Amendment.

¶14. The Mississippi Court of Appeals decision in the divorce case Watts v. Watts, 99 So.

3d 751 (Miss. Ct. App. 2012), was also attached to Trevor’s response to Thomas’ motion for

summary judgment. Trevor attached to his response to summary judgment a copy of

Thomas’ appellate brief filed in the divorce appeal. Trevor explained why the brief was

relevant to the issue of summary judgment before the trial court. He stated, “In addition, so

this [c]ourt can see for itself the extreme anger the Defendant held towards Kimberly Watts

the plaintiff attaches hereto the Brief of Appellant in Watts v. Watts, 99 So. 3d 751 (Miss Ct.

App. 2012).” Since the brief was written by Thomas’ attorney and argued legal issues that

were already made in the divorce appeal, it hardly seems relevant to the legal issues in this

appeal. This Court does not opine whether that brief, in fact, shows any anger as Trevor

alleged.

¶15. In opposition to Thomas’ motion for summary judgment, Trevor asked the trial court

to consider Thomas’ pause when Trevor asked him if he killed Kimberly to be an “admission

by silence.” Further, he requested the trial court to give an adverse inference to each

question on which Thomas invoked his Fifth Amendment right.

¶16. In October 2019, Thomas filed a motion to compel Thomas to “testify in [the]

9
presence of the Court to determine whether the Defendant is entitled to assert [his Fifth]

Amendment right against self incrimination to each individual question” that he refused to

answer in his deposition and interrogatories. The trial court never issued a ruling on this

motion.

¶17. On December 20, 2019, the trial court granted Thomas’ motion for summary

judgment, holding that Trevor failed to establish any genuine issue of material fact. Trevor

filed a motion requesting the trial court to make specific findings and alternatively to amend

or alter the judgment. Trevor also filed a motion for reconsideration. In February 2020, a

hearing was held on the motions. The trial court granted the motion for specific findings of

fact and ordered the parties to submit proposed findings.

¶18. One year later, on February 19, 2021, the trial court amended the summary judgment

order with specific findings. The trial court upheld the granting of summary judgment:

“Under the circumstances of this case, the court cannot find that the privilege has been

waived or that Thomas’ silence implies admission or entitles the plaintiff to an adverse

inference.” The trial court also entered an order denying Trevor’s motion for reconsideration

on the same day.

¶19. In March 2021, Trevor appealed from the order granting summary judgment, and the

case was assigned to this Court. On appeal, Trevor raises the following issues: (1) the trial

court erred by allowing Thomas to use his Fifth Amendment right against self-incrimination

as a “sword” instead of a “shield” in this proceeding; (2) Thomas failed to meet his initial

burden to support the motion for summary judgment, preventing the corresponding burden

10
from ever shifting to Trevor; (3) the trial court erred in declining to give an adverse inference

to Thomas’ refusal to testify after asserting his Fifth Amendment right; (4) the trial court

erred in not compelling Thomas to answer the questions on a question-by-question basis in

the presence of the court; and (5) the trial court erred in granting summary judgment to

Thomas. Finding that the trial court incorrectly applied Mississippi law as to potential

adverse inferences when the Fifth Amendment is invoked in a civil proceeding, and finding

that there are genuine issues of material fact, we reverse the order granting summary

judgment and remand this case to the circuit court for further proceedings consistent with this

opinion.

ANALYSIS

¶20. This Court reviews the grant of summary judgment de novo. Williams v. City of

Batesville, 313 So. 3d 479 (¶7) (Miss. 2021). Parties are responsible for the production of

evidence corresponding to their respective burdens at trial. Daniels, 629 So. 2d at 600.

Summary judgment should only be granted when it is shown, beyond a reasonable doubt, that

the non-movant would be unable to prove any facts to support his claim. McFadden v. State,

580 So. 2d 1210, 1214 (Miss. 1991).

¶21. Trevor asserts three issues on appeal relating to the manner in which the Fifth

Amendment issues were addressed by the trial court. First, did the trial court err in allowing

Thomas to use his Fifth Amendment right against self-incrimination as a “sword” instead of

a “shield”? Second, did the trial court err in declining to give an adverse inference to

Thomas’ refusal to testify after asserting his Fifth Amendment right? Third, did the trial

11
court err in not compelling Thomas to answer the discovery on a question-by-question basis

in the presence of the court?3

¶22. The Fifth Amendment to the United States Constitution and Article 3, Section 26 of

the Mississippi Constitution of 1890 provide every citizen with the protection against self-

incrimination. Both federal and state varieties of the privilege against self-incrimination are

available to witnesses in criminal and civil proceedings. In re Knapp, 536 So. 2d 1330, 1334

(Miss. 1988) (citing Allen v. Illinois, 478 U.S. 364, 368, 303-04 (1986); Lefkowitz v.

Cunningham, 431 U.S. 801, 804-05 (1977); State Bar v. Attorney L, 511 So. 2d 119 (Miss.

1987); Morgan v. U.S. Fid. & Guar. Co., 222 So. 2d 820 (Miss. 1969)). The privilege

applies not just to courtroom testimony, but also to deposition testimony regarding “offenses

for which [the witness] may reasonably expect that he may be investigated and charged.” In

re Knapp, 536 So. 2d at 1335.

¶23. The Mississippi Legislature created a legal right for its citizens to bring civil lawsuits

on behalf of their family members when another person or entity wrongfully or negligently

causes the death of that family member. See Miss. Code Ann. § 11-7-13 (Supp. 2013).

Trevor filed a civil lawsuit against Thomas under this statute for the wrongful death of

Kimberly. There is no blanket right to remain silent in civil cases. In re Knapp, 536 So. 2d

at 1335. A witness in a civil case must answer all questions except those that would require

3
The motion to compel a question-by-question consideration by the trial court on the
propriety of Thomas’ Fifth Amendment assertion was never ruled on by the trial court. The
trial court granted the motion for summary judgment before ever addressing the motion to
compel. This Court, therefore, does not address this issue. Because this Court reverses the
grant of summary judgment, the issue as to the motion to compel can be resolved by the trial
court if raised by the parties.

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him to give incriminating evidence. Id. “To sustain the privilege, it need only be evident

from the implications of the question, in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it cannot be answered might be dangerous

because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87

(1951); Morgan, 222 So. 2d at 828 (citing United States v. Housing Foundation, 176 F.2d

665 (3d Cir. 1949)). Importantly, “the claim of privilege in a civil case is to be determined

by the court and not by the witness as in a criminal case.” Morgan, 222 So. 2d at 828 (citing

State v. Myers, 244 Miss. 778, 147 So. 2d 334, 337 (1962)).

¶24. The Supreme Court has established a two-step process for determining whether

assertions of the Fifth Amendment privilege should apply. The trial court must determine

whether answering a question “might reveal that the witness is engaged in criminal activity.”

In re Knapp, 536 So. 2d 1330, 1334 (Miss. 1988) (citing Attorney L, 511 So. 2d at 124); see

generally McAdory v. McAdory, 608 So. 2d 695 (Miss. 1992). The witness must answer if

the answer could not be incriminatory. Id. Secondly, if the answers might be incriminatory,

the court must determine if the witness will face “even a remote risk” of prosecution for the

criminal activity. Id. “The privilege against self-incrimination in a civil case must be applied

on a question-by-question basis.” Treasure Bay Corp. v. Ricard, 967 So. 2d 1235, 1243

(¶34) (Miss. 2007) (citing In re Knapp, 536 So. 2d at 1334). Here, Thomas was a suspect

in an ongoing criminal investigation into Kimberly’s death. Thomas “pled the fifth” when

the police attempted to interview him a short time after Kimberly’s death. The questions

asked during the civil discovery process certainly had the potential to incriminate Thomas

13
and serve as a basis for future criminal prosecutions.4 Thomas had every right to assert his

constitutional right to remain silent.

¶25. Trevor also asserts that the trial court should have made an adverse inference against

Thomas when he asserted his constitutional right to silence in response to the questions

asked. The trial court refused to make an adverse inference when considering the motion for

summary judgment. This Court has explained that in a civil case, “an adverse inference may

be drawn from a defendant’s assertion of the privilege” against self-incrimination. Matthews

v. Whitney Bank, 282 So. 3d 786, 795 (¶31) (Miss. Ct. App. 2019); see also Morgan, 222 So.

2d at 828; Bradshaw v. Bradshaw, No. 2017-CA-01731-COA, 2019 WL 3815548 (Miss. Ct.

App. Aug. 13, 2019); Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004).

“In a civil case, an adverse inference may be drawn from a defendant’s assertion of the

privilege—i.e., it is ‘permissible’ for the fact-finder to draw such an inference.” Matthews,

282 So. 3d at 795 (¶31) (emphasis added). The Mississippi Supreme Court has stated that

the “court cannot try issues of fact on a Rule 56 motion; it may only determine whether there

are issues to be tried.” Mantachie Nat. Case Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170,

1172 (Miss. 1992) (quoting SW Drug Co. v. Howard Bros. Pharm. of Jackson Inc., 320 So.

2d 776, 779 (Miss. 1975)).

¶26. In the present case, the trial court declined to make an adverse inference to Thomas’

refusal to testify after asserting his Fifth-Amendment right. That was not the place of the

trial court but a role reserved for the trier of fact. The law affords the trier of fact the

4
There is no statute of limitations for the crime of murder in the State of Mississippi.
See Miss. Code Ann. § 99-1-5 (Rev. 2020).

14
authority to decide whether to apply an adverse inference. Bradshaw, 2019 WL 3915548,

at *4 (¶22). The trial court is not the trier of fact at the summary judgment phase but only

determines whether the information provided by the nonmoving party creates a genuine issue

of material fact on an essential element. Mantachie, 594 So. 2d at 1172. “It is reversible

error for a trial court to substitute its summary judgment for a jury’s consideration of

disputed factual issues if material to the case.” Downs v. Choo, 656 So. 2d 84, 85-86 (Miss.

1995) (citing Brown v. Credit Ctr. Inc., 444 So. 2d 358, 366 (Miss. 1983)). The Mississippi

Supreme Court has held “the non-moving party ‘must rebut [the motion for summary

judgment] by producing significant probative evidence . . . .’” Foster v. Noel, 715 So. 2d

174, 180 (¶35) (Miss. 1998) (emphasis added) (quoting McMichael v. Nu-Way Steel &

Supply Inc., 563 So. 2d 1371 (Miss. 1990)).

¶27. The question then becomes in this de novo review, did Trevor present sufficient

probative evidence to establish a genuine issue of material fact as to an essential element of

his wrongful death claim, namely did Thomas kill Kimberly? When reviewing a grant of

summary judgment, this Court views all evidence in the light most favorable to the

non-movant, including “admissions in pleadings, answers to interrogatories, depositions,

affidavits, etc.,” and will presume that all evidence in the non-movant’s favor is true. Downs,

656 So. 2d at 85 (citing Daniels v. GNB Inc., 629 So. 2d 595, 599 (Miss. 1993)). The party

moving for summary judgment has the burden of persuading the court that there are no

genuine issues of material fact and, therefore, they are entitled to summary judgment as a

matter of law. Daniels, 629 So. 2d at 600. If there is a doubt as to whether there exists a

15
genuine issue of material fact, the non-movant receives the benefit of that doubt. Mantachie,

594 So. 2d at 1173.

¶28. Here, it is important to note that Thomas attached nothing in support of his motion for

summary judgment. His motion for summary judgment simply stated, “[t]here is no genuine

issue of material fact to preclude summary judgment on all counts of Plaintiff’s complaint.”

Thomas claims Trevor failed to prove Thomas was at Kimberly’s home when she was

murdered; therefore, Trevor had no proof from which to create a genuine issue of material

fact.5 However, Trevor responded with documentary support proving facts that he asserts

created genuine issues of material fact.

¶29. In the documentary evidence attached to the response, Trevor Watts presented

evidence, not only of his father’s invocation of his Fifth Amendment right, but a large

amount of circumstantial evidence against Thomas. The Mississippi Supreme Court recently

reaffirmed that circumstantial evidence is given the same weight as direct evidence. Nevels

v. State, 325 So. 3d 627, 632 (¶14) (Miss. 2021). In summary, Trevor presented the

following allegations among others: (1) Thomas had fingernail scratches on his hands the day

after Kimberly was murdered by stabbing and strangulation; (2) Bottles of bleach and wipes

were found at the back door to Kimberly’s home in a bag that did not belong to Kimberly;

(3) Kimberly normally entered her home through the garage door; (4) On the day of

5
Our case law is replete with judgments being affirmed where murders (here,
wrongful death) were proved with circumstantial evidence. See Roberson v. State, 199 So.
3d 660, 669 (¶38) (Miss. 2016); Stephens v. State, 911 So. 2d 424, 436 (¶42) (Miss. 2005).
The appellate courts of this state have held circumstantial evidence can be used to prove a
fact just like direct evidence would. Nevels v. State, 325 So. 3d 627, 632 (¶14) (Miss. 2021).

16
Kimberley’s murder, Kimberly’s garage door had been disabled, causing her to enter her

home through her front door and indicating someone familiar with the home was the

murderer; (5) There were no places for an attacker to hide if Kimberly came through the

garage door whereas there were places for an attacker to hide if she was forced to come

through the front door; (6) Kimberly’s home had no signs of forced entry; (7) Thomas knew

how to pick locks; (8) Thomas allegedly turned off his cell phone during the time of the

murder; (9) George Bass testified under oath that there was nothing missing from the scene,

indicating the lack of a random burglar; (10) Bass testified under oath that Kimberly was

fully clothed when he found her, indicating the lack of a random sex crime; (11) Bass

testified that when he found Kimberly, she had her purse on her shoulder, indicating a sudden

assault when she walked through the front door of her home; (12) Thomas remained silent

and never denied killing Kimberly when confronted by Trevor; (13) When confronted by

Trevor, instead of denying he killed Kimberly, Thomas accused Kimberly’s family of

pushing Trevor to ask the questions; (14) At the moment of Kimberly’s death, Thomas was

no longer legally obligated to pay Kimberly $1,000 every month in permanent alimony; and

(15) Finally, the existence of potential adverse inferences as a result of Thomas’ invocation

of the Fifth Amendment throughout his deposition and responses to written interrogatories.

The Mississippi Supreme Court has made clear that adverse inferences are to be weighed by

the trier of fact and that the trial court is not the trier of fact in the summary judgment phase.

Supra at ¶26. Thus, the trial court should not have refused to consider the potential

evidentiary value of adverse inferences in a jury trial when considering whether there are

17
genuine issues of material fact. It is important to state again that if there is a doubt as to

whether there exists a genuine issue of material fact exists, the non-movant receives the

benefit of that doubt. Mantachie, 594 So.2d at 1173.

¶30. In this case, the combination of circumstantial evidence presented plus the potential

for any adverse inference, which could be considered by a trier of fact, created a genuine

issue of material fact as to whether Thomas was responsible for the wrongful death of

Kimberly. Accordingly, this Court finds that the trial court erred in granting summary

judgment. We reverse the order granting summary judgment and this case is remanded for

further proceedings consistent with this opinion.

¶31. REVERSED AND REMANDED.

GREENLEE, McDONALD, McCARTY AND EMFINGER, JJ., CONCUR.
WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND DISSENTS
IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J.,
AND CARLTON, P.J.; McDONALD, J., JOINS IN PART. SMITH, J., NOT
PARTICIPATING.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶32. The majority believes that Trevor Watts put forth sufficient evidence to survive

summary judgment in his wrongful death claim against his father Thomas Watts. I agree

with the majority that under our current law the trier of fact can draw an adverse inference

from the invocation of the Fifth Amendment. But I disagree with the majority’s contention

that Trevor produced any evidence to support a genuine issue of material fact regarding the

essential wrongful-death element of causation. I opine that adverse inferences alone are

insufficient to allow a claim to survive summary judgment. I write separately because this

18
case lacks any other independent evidence outside those negative inferences to support

causation. Given this, I must respectfully dissent in part.

¶33. This is a tragic case stemming from the unsolved murder of Kimberly Watts. On

November 10 or 11, 2014, Kimberly (Trevor’s mother and Thomas’ ex-wife) was stabbed

to death in her Long Beach, Mississippi home. Her body was discovered by her brother-in-

law, George Bass, after her employer informed her family she had not shown up for work.

A homicide investigation ensued and was still ongoing at the time of the appeal. Thomas

was questioned as a part of the investigation. During his interview with the police, he

invoked his Fifth Amendment right against self-incrimination. No criminal charges have

been filed against Thomas or anyone else to date. The criminal case remains open.

¶34. The wrongful death statute in Mississippi states in pertinent part:

Whenever the death of any person or of any unborn quick child shall be caused
by any real, wrongful or negligent act or omission . . . as would, if death had
not ensued, have entitled the party injured or damaged thereby to maintain an
action and recover damages in respect thereof . . . and such deceased person
shall have left a widow or children . . . the person or corporation, or both that
would have been liable if death had not ensued, and the representatives of such
person shall be liable for damages . . . .

Miss. Code Ann. § 11-7-13 (Supp. 2013) (emphasis added). “It is essential as an element of

liability under our wrongful death statute . . . that the negligence complained of shall be the

proximate cause, or at least a directly contributing cause, of the death which is the subject

of the suit.” Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (1935).

¶35. In the present case, what Trevor must prove, and has failed to prove, is the essential

element of causation. He has not put forth any evidence to indicate that Thomas was present

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to cause or did cause or contribute to Kimberly’s death on that tragic day. The majority

makes much of Thomas’ history of drug use and Thomas and Kimberly’s contentious

divorce. Ante at ¶¶3-14. But drug use and an acrimonious divorce is, without more, not

enough to establish a genuine issue of material fact as it relates to the elements that must be

proved in a wrongful death action. Also, motive is not a prima facie element of the wrongful

death statute. See Miss. Code Ann. § 11-7-13. The majority has also presented a sum of the

evidence put forth by Trevor in its opinion, listing fifteen facts Trevor points to in support

of his case. Ante at ¶29. This list confirms that Trevor presented no evidence regarding

causation (circumstantial or otherwise). The only possible evidence regarding the causation

element of Trevor’s claim that the majority lists are the potential adverse inferences taken

from Thomas’ invocation of the Fifth Amendment during his deposition and interrogatories.

Id. I maintain that potential adverse inferences alone are insufficient to preclude summary

judgment. Additionally, “[t]his essential element [of causation] must be proved as a

reasonable probability. To prove no more than that it was a possibility is not a sufficient

foundation for the support of a verdict or judgment.” Berryhill, 171 Miss. 769, 158 So. at

471. Unfortunately, Trevor has failed to meet this requirement.

¶36. The majority correctly states that “an adverse inference may be drawn from a

defendant’s assertion of the privilege against self incrimination.” Ante at ¶25 (internal

quotation mark omitted). The majority also emphasizes that “[a] fact-finder [may] draw

such an inference” from a party’s decision to invoke his Fifth Amendment privilege. Ante

at ¶25 (citations omitted). The majority holds that it was not the place of the trial court judge

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to decline an adverse inference to Thomas and that the role should be reserved for the trier

of fact, and thus summary judgment was inappropriate. But what I have found is persuasive

federal authority holding that there are limitations on the use of adverse inferences based on

the Fifth Amendment to defeat summary judgment. In determining that the invocation of the

Fifth Amendment privilege, alone, is insufficient to defeat summary judgment, federal courts

have attempted to protect the Fifth Amendment privilege while still allowing civil cases with

probative evidence to survive summary judgment.

¶37. The Fifth Circuit Court of Appeals has acknowledged that adverse inferences may be

drawn from the assertion of the Fifth Amendment in civil cases, but the court still concluded

that “[a defendant’s] refusal to answer the questions propounded to her in her deposition is

insufficient to create an issue of material fact precluding summary judgment.” State Farm

Life Ins. Co. v. Gutterman, 896 F.2d 116, 119 (5th Cir. 1990). In United States v. White, 589

F.2d 1283 (5th Cir. 1979), co-defendants were involved in parallel civil and criminal suits

related to a scheme to skim money from a competitor. Id. at 1284-85. In that case, one

defendant asserted that the state trial court effectively compelled him to waive his right

against self-incrimination by ordering him to respond to a motion for summary judgment.

Id. at 1287. In response to his argument, the Fifth Circuit stated, “[A]s an initial matter, we

accept the proposition that a grant of summary judgment merely because of the invocation

of the [F]ifth [A]mendment would unduly penalize the employment of the privilege.” Id.

(citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2018, at

148 (1970)). A subsequent Fifth Circuit case regarding qualified immunity used this

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language from White to support the premise that “adverse inferences drawn from vague

deposition questions are insufficient to establish a genuine issue of material fact.” Hassan

v. Shaw, 761 F. App’x 429, 432 (5th Cir. 2019) (unpublished) (citing Gutterman, 896 F.2d

at 119; White, 589 F.2d at 1287). Ultimately, the Fifth Circuit has determined that an adverse

inference from the refusal to answer based on Fifth Amendment privilege, without more, will

not preclude summary judgment. See Curtis v. M&S Petroleum Inc., 174 F.3d 661, 675 (5th

Cir. 1999) (holding that regarding the element of intent, plaintiff presented no other evidence

of intent than adverse inferences, which did not preclude summary judgment).

¶38. This caselaw tracks the finding in other federal courts that “[i]nvocation of the [F]ifth

[A]mendment privilege [does] not give rise to any legally cognizable inferences sufficient

to preclude entry of summary judgment. The negative inference, if any, to be drawn from

the assertion of the [F]ifth [A]mendment does not substitute for evidence needed to meet the

burden of production.” Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991) (citing United

States v. Rylander, 460 U.S. 752, 758 (1983)); In re Curtis, 177 B.R. 717, 720 (Bankr. S.D.

Ala. 1995) (holding that the court can add the weight of inferences to other evidence but that

the invocation of the Fifth Amendment privilege, standing alone, is insufficient to constitute

probative proof in plaintiff’s case); cf. S.E.C. v. Colello, 139 F.3d 674, 678 (9th Cir. 1998)

(allowing adverse inferences to be combined with evidence to defeat summary judgment);

see also LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 391 (7th Cir. 1995) (stating that

defendant’s silence should be considered “in light of other evidence”); Sebastian v. City of

Chicago, No. 05C2077, 2008 WL 2875255, at *34 (N.D. Ill. July 24, 2008) (“Before an

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adverse inference may be drawn from a party’s refusal to testify in a civil case, there must

be independent corroborative evidence to support the negative inference beyond the

invocation of the privilege.”). What these cases make clear is that adverse inferences alone,

without the benefit of other evidence, are not sufficient to defeat summary judgment. In the

present case, Trevor has produced no evidence of causation in his wrongful death claim

independent of possible adverse inferences. If he had, my opinion would differ. But because

he points to adverse inferences alone as the sole evidence regarding causation, I do not

believe his claim should survive summary judgment.

¶39. Mississippi courts have not yet made a clear determination on this issue. However,

I find our Fifth Circuit’s holdings instructive. If Mississippi courts choose to follow the line

of reasoning that federal courts have taken, as I believe they should, parties would be allowed

to seek a remedy in a civil court where there is none in a criminal court, while at the same

time protecting the crucial principles outlined in the Fifth Amendment. I maintain that our

courts should follow the example of the federal courts in this matter.

¶40. In the present case, Trevor provided no evidence of the essential element of causation.

Furthermore, I do not believe adverse inferences alone are sufficient probative evidence on

this essential element that would preclude summary judgment. Because the evidence is not

sufficient to show that Kimberly’s death was caused by Thomas’ asserted negligence as the

wrongful death statute requires, Trevor’s claim should fail on summary judgment grounds.

Accordingly, I respectfully dissent.

BARNES, C.J., AND CARLTON, P.J., JOIN THIS OPINION. McDONALD,
J., JOINS THIS OPINION IN PART.

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