Thursday, May 24, 2018

Mississippi Tort Claims Act

The Mississippi Supreme Court decided  Wilcher v. Lincoln County Board of Supervisors today located here.  This arguably makes it easier to sue the State in some contexts now.

Wednesday, May 16, 2018

Foreign Object

On April 26, 2018 the Mississippi Supreme Court decided Doretha Thompson v. Baptist Memorial Hospital-DeSoto, Inc. and James E. Fortune, M.D. This case has one of the best summaries I know of dealing with the law where a foreign object is left in someone.   The case involved a defense verdict where a sponge was left in a patient.    On appeal, the Court reverses because of the trial curt’s refusal of two instructions that would have told the jury that if they found that a sponge was left in Thompson’s abdomen, then a presumption of negligence is raised that must be rebutted.

Friday, May 4, 2018

Brady Disqualified

If a party has a domestic violence restraining order entered against them, they are barred from possessing a firearm.  This is sometimes called Brady disqualified.  Brady disqualified means that a person is disqualified under criteria set for in the Brady Bill from purchasing a firearm. 18 U.S.C. SS 9 (d) (8), requires the following three conditions to be met in an order to disqualify a handgun purchase.
1. the order was issued after a hearing, of which the subject received actual notice, and at which such person had the opportunity to participate; and
2. includes a finding that the subject represents a credible threat to the physical safety of an intimate partner or child; or
3. explicitly prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury.

Sunday, April 29, 2018

Work Life Tables

In Mississippi, Courts "can take judicial notice of the information found in life expectancy tables."  Churchill v. Pearl River Basin Dev. Dist., 757 So. 2d 940 (¶ 19) (Miss. 1999).  The Mississippi Department of Health provides one at this link.  This may be useful in a long term alimony case. 

Tuesday, April 24, 2018

Sued in the Wrong Name

What happens when a company is sued in the wrong name?  This was one of the issues last week in United Airlines, Inc., Improperly Named as United Airlines Corporation v. Martin H. McCubbins located hereThe paragraphs below from the opinion show how the issue is to be handled.  As noted in the opinion, ignoring is not an option/.

"Our Supreme Court has addressed the concept of a “misnomer” in several prior
opinions.  In Campbell & Campbell v. Pickens Bank, 134 Miss. 559, 565, 99 So. 378, 378-79
(1924), a writ of garnishment and summons directed to the “Bank of Pickens” were served on the cashier for the “Pickens Bank.”  The “Bank of Pickens” had been defunct for several
years.  Id. at 565, 99 So. at 380.  The “Pickens Bank” was the intended garnishee, but it was
misnamed in the writ and summons.  Id.  After a default judgment was entered against the
Pickens Bank, the bank moved to set aside the judgment, arguing that it was not properly
served with process.  Id. at 565-66, 99 So. at 379.  The cashier denied that he was served, but
after hearing testimony, the chancellor found as fact that the cashier was served.  Id. at 567,
99 So. at 379.  Even so, the Pickens Bank argued that service was ineffective because it was
not the entity named in the writ and summons.  Id. at 566, 99 So. at 379.  On appeal, our
Supreme Court disagreed.  Id. at 568, 99 So. at 380.  The Court held that service was proper
and that one summoned by a wrong name has a duty “to appear and object to the misnomer”;
and if he fails to do so, the judgment is not void merely on account of the misnomer.  Id. 
¶16. The Supreme Court later distinguished Pickens Bank in Delta Cotton Oil Co. v.
Planters’ Oil Mill
, 142 Miss. 591, 107 So. 764 (1926).  In Delta Cotton Oil, the summons
was served on a man who served as an agent for two entities with similar names, and the
summons failed to correctly and precisely name either entity.  Id. at 596-97, 107 So. at 764.
Moreover, on the particular underlying facts of that case, the judgment could have been
“applied to one as readily as to the other.”  Id. at 601, 107 So. at 767.  The Supreme Court
held that in that situation there was “such uncertainty as [to] make the rule of misnomer
inapplicable.”  Id.  The Court reaffirmed Pickens Bank’s holding and “the doctrine of
misnomer” as “a wholesome doctrine.”  Id.  But the Court held that the doctrine “must be limited to the cases where the identity of the persons sued and against whom judgment is rendered is not doubtful.”  Id.  Accordingly, in Delta Cotton, the Court held that, on the facts
of that case, the judgment was void.  Id. 

¶17. In a more recent case, our Supreme Court discussed another “set of circumstances”
in which the “doctrine of misnomer” does not apply.  D.P. Holmes Trucking LLC v. Butler,
94 So. 3d 248, 252 (¶¶10-11) (Miss. 2012).  In D.P. Holmes Trucking, the plaintiff “did not
simply misname the defendant” but rather “sued a [party] he believed to be responsible”
when, in fact, “he should have sued a different party.”  Id. at (¶11).  The Court held the
plaintiff was trying to substitute one real party for another real party rather than merely
correct a misnomer.  Id. 

¶18. A recent decision of the Georgia Court of Appeals is also helpful and persuasive.  In
Mathis v. BellSouth Telecommunications Inc., 690 S.E. 2d 210 (Ga. Ct. App. 2010), the
plaintiff served Corporation Service Co. (CSC) with a summons directed to “AT & T
Telecommunications.”  Id. at 212.  The intended subject of the complaint, BellSouth d/b/a
AT & T of Georgia (BellSouth), appeared and argued that service of process was improper
and ineffective because “there was no such entity as AT & T Telecommunications.”  Id.
However, the Georgia Court of Appeals held that service of process was sufficient and
effective because the plaintiff properly served BellSouth’s registered agent (CSC), and as
BellSouth’s registered agent, “CSC was obligated to recognize the trade names of its clients
and also to recognize some misstatements of its clients’ names and to accept service, on
behalf of its clients, of lawsuits filed under such misnomers.”  Id. at 214 (emphasis added;
quotation marks omitted).

¶19. Based on our Supreme Court’s decision in Pickens Bank and the persuasive reasoning
of the Georgia Court of Appeals in Mathis, we hold that service of process in this case was
sufficient to give the circuit court jurisdiction over United.  We recognize that there are some
distinctions between this case and Pickens Bank and Mathis.  However, those differences do
not change the outcome.  This case differs from Pickens Bank in that process was served on
the defendant’s registered agent, rather than on an employee of the defendant at its principal
place of business, as in Pickens Bank.  However, the registered agent’s basic purpose,
especially in the case of an out-of-state corporation doing business in this State, is to stand
in the shoes of the corporation for purposes of accepting service of process.  See Miss. Code
Ann. § 79-35-13(a) (Rev. 2013).  For this reason, CT has an obligation “to recognize some
misstatements of its clients’ names and to accept service, on behalf of its clients, of lawsuits
filed under such misnomers.”  Mathis, 690 S.E.2d at 214. "

Sunday, April 22, 2018

Text Messages

On Tuesday, the Mississippi Court of Appeals decided Saunders v. State located here.  One of the issues in the case was the admissibility of a text message.  The Court found that the text was properly admitted when it was found on the Defendant's phone and he presented no evidence to rebut that it was his text message.  The case appears to say that once a prima facie case is made for admissibility on a text, the opposing party has to rebut that presumption.  The case further found that the credibility of that goes to the fact finder then.   

Friday, April 13, 2018

Same-Sex Parents

Last week, the Mississippi Supreme Court decided Day vs. Day located here.  The issue in the case was over a same-sex couple who had a child by a sperm donor.  The trial court had determined that the non-birth parent was not a legal parent and that the sperm donor's rights had to be terminated.  The Mississippi Supreme Court reversed that case and found that the sperm donor had no rights and sent the case back for an Albright analysis.