Friday, October 30, 2015

Deposition of Prisoner

Rule 30 (a) of the Mississippi Rules of Civil Procedure provides that:

"(a) When Depositions May Be Taken.  After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of the summons upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given under subsection (b)(2) of this rule.  The attendance of witnesses may be compelled by subpoena.  The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.".

I started thinking about this and what happens if a party is in prison?  This is particularly noteworthy with a divorce or a termination of parental rights.  Based upon this, the court has to grant leave to conduct the deposition and what terms the court will have it on.  On a practical standpoint too, the prison will have to be coordinated too since they have certain requirements also. 

Wednesday, October 28, 2015

Rule 5.1 Round 2

In April 2015, the MSSC promulgated MRCP 5.1, which put redaction requirements on parties electronically filing pleadings with certain data: “an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number.”  To put it mildly, this was a disaster in practice and  the Court suspended the order five weeks later.

Currently, offered for comment is a new Rule 5.1. This time, the duty is on the clerks’ offices:
Rule 5.1. Privacy Protection for Filings Made with the Court
Beginning January 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-1-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts—specifically, Sections 5 and 9 therein.
Comments are due November 4.  To me, this potentially creates the same problem if an attorney in the future needs something on a case. 

Tuesday, October 27, 2015

Cell Phone Tracking

Last Thursday, the Mississippi Supreme Court granted cert in Fleming  v. State of Mississippi.  The issue the Court is reviewing is whether a lay witness can testify about tracking a cell phone’s use using cell phone towers.  The cert petition is located here

Monday, October 26, 2015

Rule Amendment

The Mississippi Supreme Court amended Rule 802 of the Mississippi Rules of Evidence.  The order is located here.  The amendment links up with Rule 32 of the Mississippi Rules of Evidence to now allow the testimony of a medical doctor to be admissible without his or her presence in Court. 

Friday, October 23, 2015


Be careful about the dangers of understaffing.  A complaint was recently filed in Jackson against a law firm stating a claim for understaffing which allegedly resulted in a missed statute of limitations.  A link to the complaint is here

Thursday, October 22, 2015

Custody and Visitation

On Tuesday, the Mississippi Court of Appeals decided Campbell v. Watts located here.  This was a case I got involved in post trial.  The Court of Appeals reversed and rendered the trial court's ruling on custody.  There is some good reading in the opinion on the standards to modify visitation as opposed to custody that is worth reading.  I normally plead modification of visitation as an alternative in modification of custody cases under the right set of facts.  Since the case is still pending, my general practice is not to elaborate more fully in posts.   

Tuesday, October 20, 2015

Tort for Private Organization

Last week, the Mississippi Supreme Court decided  Miss. High School Activities Assoc. v. Hattiesburg High School.   The case centered on whether relief was available in court over a decision of a private voluntary organization.    The Mississippi Supreme Court said no and found that:
"Nowhere in its complaint does HHS allege a breach of contract, a tort, fraud, or any other legally cognizable claim. Contrary to the dissents’ position, there simply is no cause of action for “arbitrariness,” in the absence of a contractual provision or some other legal duty requiring otherwise. For example, MHSAA could decide arbitrarily to paint all of its office doors chartreuse, but unless some contractual provision or other legal duty mandates otherwise, no cause of action arises. As such, HHS’s complaint for injunctive relief was not “predicated upon some legal or equitable claim which will, at some point, proceed to the merits,” and therefore was not within the Forrest County Chancery Court’s jurisdiction. In Re Bell, 962 So. 2d at 541."

Monday, October 19, 2015

Testimony Does Not Equal Proof

I heard an interesting comment last week which is so true to some degree.  The general comment was that testimony does not equal proof.  In the context, it dealt with accusations by one party against another with no proof other than the testimony.  Soon thereafter, there was testimony that denied all of the prior testimony.  The lesson here is that anyone can say anything.  Without some other proof, testimony alone may not be enough. 

Friday, October 16, 2015

Standing Mediation

The more I do domestic cases in Mississippi, the more I believe it may be time to look into a standing mediation order.  Many times issues start to narrow before trial.  The problem is that many times the issues could have been greatly narrowed a long time before then saving the parties a lot of time and money.  This is particularly true on property issues. 

Thursday, October 15, 2015

Hugging Suit

There has been some press recently over a family member suing a child for hugging her which resulted in her falling.   This apparently resulted in some broken bones.  There is an article at Lowering the Bar on it located here.  To me, this is a case with absolutely no jury appeal whatsoever. 

Wednesday, October 14, 2015

Malicious Prosecution

The Mississippi Court of Appeals decided Stratton v. Using yesterday located here.  The issue in the case was whether a compromise payment to settle a criminal prosecution later made it impossible to satisfy the standards to file a malicious prosecution suit.  The Court of Appeals ruled that the earlier compromise was not a favorable termination on the merits, and as such, the Plaintiff had not claim for malicious prosecution.

Tuesday, October 13, 2015

Tennessee Tort Resource List

John Day maintains a good list of Tennessee Tort Resource materials located here.  I own a copy of most of these and can vouch they are worth the money. 

Friday, October 9, 2015

New Standards on Third Party Custody

The Mississippi Supreme Court decided Irle v. Foster yesterday located here.  The issue was the standard required to award third party custody over the natural parents where the issue had been previously litigated.  The Supreme Court has stated now that:

"¶13. So we hold that in cases involving a third party and a natural parent—where the third
party has been before the court in a previous custody dispute over the child—the material
change-in-circumstances test applies.  A third party attempting to take custody from a natural
parent under those circumstances is required to overcome the natural-parent presumption and
to show a material change in circumstances from the previous decree."

Wednesday, October 7, 2015

Defining Neglect

The Mississippi Court of Appeals decided Carter v. Carter yesterday located here.  To my knowledge, this may be the first case to define what neglect is that would require the appointment of a guardian ad litem as opposed to just bad parenting.  The Court noted "Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem."

 The trial court went on and inferred that whether a child is neglected should be evaluated as defined in the Youth Court Act.  The Youth Court Act defines a neglected child as one:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support;
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.
Miss. Code Ann. § 43-21-105(l) (Supp. 2014).

Tuesday, October 6, 2015

Tennessee Government Tort Claims

Last month, the Tennessee Supreme Court decided Moreno v. City of Clarksville located here.    This case has one of the most detailed discussions I am aware of dealing with the interplay of the GTLA, Claims Commission, comparative fault, and the statute of limitations in Tennessee.  It almost reads like a law school exam problem.  John Day does a very good detailed discussion of the case that I cannot add much to located here

Monday, October 5, 2015

Suing a Dissolved Corporation

The Mississippi Supreme Court decided Williams v. Clark Sand last Thursday located here.  The issue in the case dealt with the time frame for a dissolved corporation to be sued.  The Mississippi Supreme Court found that:

"At common law, when a corporation dissolved, it no longer existed, and it could not be sued. But because of the harshness of this rule, Florida, like most states, has adopted a corporate-survival statute that allows plaintiffs to bring suit against a Florida corporation for up to four years after dissolution. This rule applies to claims that were unknown to the corporation at the time of dissolution. Here, sixteen plaintiffs sued Clark Sand Company, Inc., a Florida corporation, more than four years after the corporation’s dissolution. The circuit court judge therefore sustained Clark Sand’s motion for summary judgment. Finding no error, we affirm."

The case also cites to the relevant Mississippi statute on this area.  This is a good case to file away which can come in handy where there are companies that are administratively dissolved by the state for failure to pay annual fees. 

Thursday, October 1, 2015

Confession of Error on Appeal

In Mississippi, where a party concedes an issue raised on appeal, remand is proper.  Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1088 (¶11) (Miss. Ct. App. 2012).