Wednesday, December 28, 2016

Appeal of Summary Judgment Denial

There are two lines of cases dealing with appealing the denial of a summary judgment motion:

The Mississippi Court of Appeals has held that appeals from the denial of a motion for summary judgment are interlocutory in nature and are rendered moot by a trial on the merits.  Gibson v. Wright, 870 So. 2d 1250, 1254 (¶8) (Miss. Ct. App. 2004) (citing Black v. J.I. Case Co., 22 F.3d 568, 569-70 (5th Cir. 1994)).  “[O]nce trial begins, summary judgment motions effectively become moot.”  Id. (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 397 (5th Cir. 1995)).  Britton v. Am. Legion Post 058, 19 So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008); accord Gibson, 870 So. 2d at 1254 (¶8). 

But see:

U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So. 2d 956, 962 (¶12) (Miss. 2008) (reviewing
denial of summary-judgment motion, post-jury verdict); Piggly Wiggly of Greenwood Inc.
v. Fipps, 809 So. 2d 722, 726 (¶16) (Miss. Ct. App. 2001) (same).  The review of the denial of the summary-judgment motions in those cases would have concerned issues of fact.  Britton v. Am. Legion Post 058, 19 So. 3d 83, 84 (¶5) (Miss. Ct. App. 2008) (refusing to review summary-judgment motion that concerned status of party as legal entity); Gibson v. Wright, 870 So. 2d 1250, 1254 (¶5) (Miss. Ct. App. 2004) (refusing to review summary-judgment motion that concerned legal status of decedent in wrongful-death suit).

The issue seems to be whether issues of law or fact are involved.  If issue of law reviewable, if of fact up to the jury and not reviewable. 

Tuesday, December 27, 2016

Admissions in State Court v. Federal Court

In Mississippi, the standard to withdraw admissions that have not been timely responded to is pretty low if you file a motion to withdraw the admissions.  However, in Federal Court, the standard is higher.  If a request is made before the expiration of the deadline, the Courts grant additional time as a matter of course.  Fed. R. Civ. P. 6(b)(1)(A).  When the time is lapsed, the more stringent times of Rule 6(b)(1)(B) apply.  An extension under this rule can be granted only upon a showing of both good cause and excusable neglect. 

Monday, December 19, 2016

Few Cases on Witness Testimony and Appeals

Here are a few cases dealing with witness testimony on appeal.  They can also be helpful in making arguments to a trial court in summation:

               (1)  Regarding witnesses “[u]ndisputed testimony, which is not so unreasonable
as to be unbelievable, must be taken as truth.” Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987). 

              (2) For “in the absence of contradictory evidence, courts are bound to accept the
only credible evidence offered in a proceeding and apply the correct law.” MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008).  

               (3)  “Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not
only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case.” Mobile, J. & K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143 (Miss. 1908). For “we must accept the testimony of [a witness] as true,” when such a witness “is not contradicted either by direct evidence or by circumstances.” Stewart v. Coleman & Co., 120 Miss. 28,  81 So. 653, 655 (Miss. 1919).

               (4). Furthermore, the law in Mississippi is that a jury is to weigh expert testimony, and
“judging the expert’s testimony and weight to be accorded thereto is the province of the jury.”
Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007) (internal quotations and citations omitted). For “the jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely.” Id. (internal quotations, citations, and alterations omitted).
                (5). “This Court, of course, is not the jury . . . The weight and credibility of the \
witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose.” Id. (internal quotations and citations omitted); Robinson, 51 So.3d at 950 n.5 (internal quotations and citations omitted) (“The credibility of a witness is a question of fact for the jury to resolve”).   In Robinson, the case was fully fleshed out at trial—and the Court ruled it would not second guess the jury.  Id. at 950.

Friday, December 16, 2016

Monday, December 12, 2016


Last Tuesday, the Mississippi Court of Appeals decided Danny P. Hicks, II v. Department of Human Services, State of Mississippi .   The Appellant signed a court order of paternity without getting DNA done.   In 2015, a DNA test revealed that Hicks was not the biological father. Hicks filed a Petition to Disestablish Paternity and Terminate Child Support and asked to be  reimbursed for the payments made before the DNA test ($1,800). The trial court denied relief and this was affirmed on appeal.  The Court noted:
In Jones v. Mallett, 125 So. 3d 650, 651 (¶¶5-7) (Miss. 2013), the chancery court similarly relied on section 93-9-10(3)(c) to deny the plaintiff’s petition to disestablish paternity. Our supreme court affirmed the chancellor because the plaintiff had signed a stipulated agreement of paternity that was approved by the chancery court over a decade prior to the father’s filing for disestablishment. Id. at (¶10). Thus, here we find the chancellor did not err by denying Hicks’s petition.
Here is the question I have.  Are you entitled to the natural parent presumption if you cannot be disestablished as the parent?  I have a similar issue up on rehearing at the Court of Appeals.  The law on that issue is not clear and I can make a pretty good sales-pitch either way on this issue. 

Tuesday, December 6, 2016

Ability to Pay

A few weeks ago, the Mississippi Court of Appeals decided Ewing v. Ewing located here.  One of the issues in the case was the failure to consider the ability to pay by the payor.  This is one area that is ripe for more appellate law in.  The case seems to hint around that some finding of ability to pay along with analysis of current expenses is necessary in order to arrive at a reasonable award of alimony and other financial obligations. 

Friday, December 2, 2016

Tennessee Issue of Interest

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The opinion goes into detail about the unconstitutionality of the statute because of various issues.

Monday, November 28, 2016

Book of Interest

I found another good book over the holiday.  IPad in One Hour for Litigators by Tom Mighell is excellent on finding the apps and technology that work in court.  I have used a number of apps suggested in there and it helps make since of how to adapt the Ipad to law practice.  A link on Amazon to the book is here

Wednesday, November 23, 2016

New Fair Labor Reg Blocked

On Tuesday, a federal judge blocked the implementation of changes to the Fair Labor Standards Act.  A link to an article about it is here.  A lawsuit challenging the rule was filed by 21 states and a variety of employer groups. The rule was set to increase the exemption threshold to $47,476, more than doubling the current threshold. 

Tuesday, November 22, 2016

Contempt vs. Incarceration

In Mississippi, there is one standard for contempt and one standard to avoid incarceration for contempt.  To defend against the contempt, an individual has to show they used all available funds over necessary living expenses to pay support.  To defend against incarceration for contempt, you have to show the present inability to comply with the court's order.  I think the line between these gets blurred a lot.  I am working on a brief now to encourage the Mississippi Supreme Court to clarify these issues and put in some procedural safeguards to prevent Due Process from being violated. 

Tuesday, November 15, 2016

App of Interest

Last night, I found a nice IPad app I like called Tablit.  A link to it is here.    The app sets up an electronic trial notebook similar to ones I still create by paper.  Personally, I still prefer hard copies but this is a good backup copy and can make it easier to get to certain pieces of information. 

Friday, November 11, 2016

Web Bugs

Lawyers should not plant “web bugs” to track the location and use of emails sent to opposing counsel, according to an Alaska ethics opinion.
The Alaska Bar Association Ethics Committee is the second bar panel to address the issue, according to the ABA BNA Lawyers’ Manual on Professional Conduct. An ethics opinion by the New York State Bar Association also found web bugs are not ethically permissible.
The Oct. 26 opinion by the Alaska ethics committee said web bugs in emails can track a variety of information. They can be used to learn when and how often an email was opened, how long it was reviewed, how long an attachment was reviewed, whether the email or attachment was forwarded, and the rough geographical location of the recipient.  Web bugs can be placed in email through an image with a unique website address that causes the recipient’s computer to look up the image and send information to the sending party, the ethics opinion explains.
Web bugs can reveal information that interferes with the lawyer-client relationship and the preservation of client confidences, the ethics opinion said. Seeking to invade the lawyer-client relationship through web bugs, even if the web bug is disclosed, violates ethics rules barring lawyers from engaging in misrepresentation and deceit, according to the opinion.
The ethics opinion provides two examples of how web bugs can intrude on the attorney-client relationship. In the first, a client has informed her lawyer she has moved to another state, but she doesn’t want her location disclosed. An email with a web bug contains a page for the client’s signature, and the receiving lawyer forwards the document to the client, revealing information about the client’s location to the lawyer who planted the bug.
In the second example, a lawyer planting a web bug sends a draft settlement agreement to opposing counsel. The opposing counsel forwards the agreement to his client. The web bug enables the sending lawyer to determine which pages the lawyer and client found most important.

Thursday, November 10, 2016

Preliminary Injunction on Arbitration Ban

A preliminary injunction was recently granted regarding the ban on nursing home arbitration.  A copy of the order is here.  It will be interesting to see how this pans out. 

Tuesday, November 8, 2016

New Frontiers in Discovery

Last Friday, I went and renewed by guardian ad litem certification.  One of the issues we discussed was new attacks on guardian ad litem opinions in discovery.  Below is a list of some of the new frontiers in discovery and attacking the opinions:
                                      (1). Subpoenas for notes from interviews
                                      (2). Depositions of guardian ad litem concerning basis of opinion
                                      (3). Designation of expert witness or alternate guardian ad litem to attack
                                             basis of opinion
                                      (4). Interrogatories and Requests for production of documents to GAL

I see these becoming more and more common in the near future. 

Friday, November 4, 2016

Reporting Child Abuse

Virtually everyone in Mississippi is a mandatory reporter if child abuse is suspected.  Here is the 800 number if needed:  1-800-222-8000.

Wednesday, November 2, 2016

Line of Demarcation

On Tuesday, the Mississippi Court of Appeals decided Ewing v. Ewing located here.  I am not going to comment too much on the case since it is one of mine that is on the way back to the trial court it appears.  However, one of the key issues in the case was the line of demarcation on the accumulation of marital property.  The Court found that:  "Though the chancellor implicitly held the date of demarcation as the date of the divorce, the chancellor erred when he failed to explicitly declare either date as the line of demarcation.”  As such, it appears the trial court has to make a specific finding on the record of what date it will use for demarcation.

Thursday, October 27, 2016

Third Party Custody and Visitation

On Tuesday, the Mississippi Court of Appeals decided Darby et. al. v. Combs et. al. located here.  This was a custody case between the paternal grandmother and the great grand parents.  Ultimately, the Court awarded joint legal and physical custody to the parties.  The Court of Appeals affirmed this decision and found that with the natural parent presumption gone with the natural parents, the trial court could award joint custody and visitation to third parties.  My reading of some of the language in this opinion seems to hint that so long as the natural parent presumption is gone, the court could in theory award visitation to various parties if it find that said visitation is in the best interest of the minor child.  This opinion has some of the best discussion I have seen concerning the custody statutes and the current state of the law concerning them. 

Monday, October 24, 2016

Arbitration Lawsuit

I mentioned in a previous post that nursing homes that receive Medicare and Medicaid are now banned from entering into arbitration agreements prior to an issue arising. Last Monday, suit was filed on behalf of several nursing facilities in Oxford to attempt to uphold arbitration.  A copy of the complaint is located here.     

Friday, October 21, 2016

Interlocutory Appeal of Interest

Last week, the Mississippi Supreme Court granted an interlocutory appeal in Baptist Memorial Hospital-DeSoto, Inc. v. Sonya Rankin, as Conservator for Willie A. Rankin; and Virginia Rankin, Individually which presents the issue of whether a medical malpractice suit can be initiated by a conservator on behalf of the ward without the conservator first having obtained consent of the chancery court as required by MCA § 93-13-27

Tuesday, October 18, 2016

Jury Trial vs. Bench Trial

Having conducted both a jury trial and a bench trial, there are advantages and disadvantages of both.  With a bench trial, the court tends to be a lot more lenient on evidentiary issues since it is just them hearing the evidence.  However, the disadvantage is that you have one person sitting as fact finder who has a legal background.   This can result in a different decision than the average juror would make.

With a jury trial, the court is a lot less likely to let close evidence in.  The trial is much more expensive for everyone.  However, cases that are terrible on the law can often times be overcome with a good equity argument.  This is since I have many time juries ignore the law if they do not feel it is right. 

Friday, October 14, 2016

Guardian Ad Litem and Harmless Error

Yesterday, the Mississippi Supreme Court decided Smith v. Smith located here.  This was a nasty custody case involving sexual abuse.  One of the issues was whether it was error to not say why the guardian ad litem recommendation was not followed.  The Court found that:

"We find the fact the chancellor made an independent custody assessment is not, itself, error. Furthermore, after review, we find no error in the chancellor’s ultimate custody decision, evidentiary rulings, and award of costs to the husband. We do, however, find the chancellor should have explained why he rejected the GAL’s recommendation1 that the minor children be assessed and counseled. But we find this omission was harmless error and does not require reversal."

This is the first case I am aware of that has found the failure to state why the opinion was being rejected was harmless error.  This could signal a new shift in the role of the guardian ad litem.

Wednesday, October 12, 2016

Modification of Tax Deductions in Divorce

One party or the other is awarded the income tax deductions at the time of a divorce.  So, can those be modified later?  When the request to transfer a tax exemption is pursuant
to a request to modify a prior decree, a material and adverse change in circumstances must
occur to transfer to one parent a tax exemption that was previously awarded to the other
parent. Peters v. Ridgely, 797 So. 2d 1020, 1024 (¶18) (Miss. Ct. App. 2001). For example,
in Peters, the Mississippi Court of Appeals  affirmed the modification of an original decree transferring tax deductions to the custodial parent following a significant and unexpected increase in medical expenses for minor children coupled with the custodial parent’s need to purchase medical insurance due to the noncustodial parent’s failure to maintain a policy. Id. at 1024-25 (¶20).

Friday, October 7, 2016

Mississippi Criminal Rules for Comment

The Mississippi Supreme Court’s Rules Committee on Criminal Practice and Procedure has posted the proposed Mississippi Rules of Criminal Procedure for public comment.  The filing deadline for public comments is Monday, November 7, 2016.  The link (dated October 6, 2016) is provided below:

Thursday, October 6, 2016

STDs and Divorce

On Tuesday, the Mississippi Court of Appeals decided Farris v. Farris located here.  This is the first case in Mississippi to find that the exposure of a spouse to a sexually transmitted disease amounts to habitual cruel and inhuman treatment as a ground for divorce.  As a side note, I have been advising clients for a while now to get an STD test anytime infidelity is involved.  In some cases it has given them some piece of mind and in others a big bargaining chip in the divorce process. 

Wednesday, October 5, 2016

Service of Process via Certified Mail

The Mississippi Court of Appeals decided Long v. Vitkauskas located here. Long and his wife separated on May 16, 2011.  On March 17, 2014, Long sued Vitkauskas for alienation of affection.  Vitkauskas, a resident of Pennsylvania, was served with process via certified mail marked “restricted delivery” pursuant to Mississippi Rule of Civil Procedure 4(c)(5).  The address listed was Vitkauskas’s place of employment.  The return receipt was not signed by Vitkauskas but rather someone named “Mary” with the last name illegible.

On May 14, 2014, Vitkauskas’s attorney entered a special appearance to contest jurisdiction.  Vitkauskas also filed a motion to dismiss for lack of jurisdiction.  On October 9, 2014, the trial court granted the motion, finding that service was insufficient since Vitkauskas himself did not sign the return receipt.  Long filed a motion for reconsideration and Vitkauskas responded.  After a hearing, the trial court denied Long’s motion for reconsideration and denied Long’s request for additional time to serve Vitkauskas.

This was ultimately affirmed by the Court of Appeals.  This is why I do not do certified mail service for the most part.  There are too many chances for a defendant to play games and argue insufficient service. 

Thursday, September 29, 2016

CMS Bans Nursing Homes from Using Forced Arbitration

In a regulation issued today, for publication early next week in the Federal Register, the Centers for Medicare and Medicaid Services of the Department of Health and Human Services have banned nursing homes that participate in the Medicare and Medicaid programs from entering into predispute arbitration agreements with patients. The Centers had proposed only to impose certain requirements that would supposedly enhance the "voluntariness" of such agreements, but had requested comment on whether to ban them altogether. The comments received convinced the agency that predispute arbitration agreements are harmful to nursing home residents and reflect disparities in bargaining power and information between nursing homes and patients. The agency strongly rejected industry suggestions that it lacked authority to issue such a rule.

Tuesday, September 27, 2016


With nonpayment of child support, the only proof necessary to establish nonpayment is sworn testimony.  When a party alleges that the other has not paid their support obligations the Court looks to the payor to prove what was paid, not the payee to prove what was not. In simple terms, if you owed $500 per month in child support and I sued you for contempt and said you had not paid, that’s all I have to do, and the burden shifts to you to prove you did pay what was Ordered and owed. If you cannot prove it, you may be out of luck.
The defense is normally, “But I paid cash…”.  The other party is not going to admit that you paid cash or if you did it was because you owed them money, not that it was the child support payment.  The best piece of advice is to get a receipt everytime. Hand write it on notebook paper if you have to. Keep good records of how much was paid and on what date it was paid. Your wallet and your freedom, at least temporarily, may depend on it. 

Friday, September 23, 2016

Adoption Fraud

Yesterday, the Mississippi Supreme Court decided Doe v. Smith located here.  The issue in the case was a mother that fraudulently stated that she did not know who the natural father of a child was before putting the child up for adoption.  This was ruled to be a fraud upon the trial court that can be set aside.  The case is worth a read. 

Monday, September 19, 2016

Conflict in Statute of Limitations

Last Thursday, the Mississippi Supreme Court decided North American Midway Entertainment, LLC, Mid-America Shows Transportation, Inc. and North American Midway Entertainment-Amusement South, Inc. v. Tommy W. Murray and Kelli E. Murray located here.  

On May 1, 2012, the Murrays filed a complaint in the Hinds County Circuit Court, First District, against the estate of James E. German and three related businesses that had employed German—Mid-American Shows Transportation, Inc.; North American Midway Entertainment-Amusement South, Inc. f/k/a Farrow Shows, Inc.; and North American Midway Entertainment (collectively “Midway”).  The Murrays were residents of Georgia.  Before German died, he lived in Mississippi.  Midway is a group of foreign corporations doing business in Mississippi. 

The Murrays based their claims on a wreck that occurred in Louisiana almost three years earlier.  On May 4, 2009, German, while driving one of Midway’s eighteen wheelers, started reversing back down an interstate exit ramp.  Tommy’s pickup truck rammed into him.  The Murrays alleged German’s negligent driving caused Tommy to suffer physical, emotional, and mental injuries and Kelli to experience loss of consortium.   The statue of limitations had run in Louisiana already and they attempted to apply Mississippi law. 

The relevant language from the case is the following:

"Under Mississippi Code Annotated Section 15-1-65, when a cause of action has accrued in another state and is time-barred there, it cannot be maintained in Mississippi. The one exception is “where such a cause of action has accrued in favor of a resident of this state,” which is not the case here. Id. Here, Tommy and Kelli Murray’s action accrued in Louisiana. But by the time they filed their action in Mississippi, Louisiana’s one-year statute of limitations had passed.  Because they could no longer file an untimely action in Louisiana, they were likewise barred from filing suit in Mississippi. We therefore reverse the trial court’s denial of the defendants’ motion to dismiss the complaint, in which they asserted Section 15-1-65’s clear bar. We render a judgment in the defendants’ favor."

Thursday, September 15, 2016

Criminal Attempt

The Mississippi Court of Appeals decided Craig v. State of Mississippi on Tuesday located here.  Craig was convicted of manslaughter in the death of  David Smith.  He was also convicted of attempted aggravated assault, carrying a concealed weapon.  Craig shot Smith inside a convenience store in Quitman County and killed him.  The bullet landed near another man. The attempted aggravated assault was based on the bullet’s landing near the bystander.  On  appeal, Craig challenged the sufficiency of the evidence on this charge and the COA agrees with Craig and vacates the aggravated assault conviction.

The Court of Appeals noted:
"In the case at hand, only one shot was fired, and Autman was in the restaurant, a different area of the building than Smith and Craig. Further, when asked if he was in the line of fire, Autman could not answer in the affirmative. Autman also noted that his diving to the floor caused him to be closer to where the bullet landed than where he was standing before the shot was fired. Craig testified that he had neither any intent to harm Autman nor any knowledge that Autman was even in the building. Further, no evidence was put forth at trial that Autman had any fear of being harmed when the shot was fired."

This is a very fact specific case.  In reading the opinion, transferred intent was not found mainly because only one shot was fired.  This opinion has one of the best explanations of intent and transferred intent in Mississippi that I know of. 

Monday, September 12, 2016

Curing Contempt

Many times people try to cure contempt right before trial.  This is a good course of action to get oneself purged of the contempt.  However, it does not wipe out the contempt.  The Court of Appeals has said:

"We should not be heard to say that a party can clearly disregard a valid court order until contempt proceedings are filed against the offending party and just prior to trial gain exoneration by full compliance and escape any finding of contempt and charge of appropriate attorney’s fees. Attorneys and parties should not lull themselves into the false sense of security that because a divorced party who stands in contempt of a valid decree cures the contumacious conduct after an attorney is hired and a petition of contempt is filed but prior to the hearing, is insulated from an award of attorney’s fees.".   Holloway v. Holloway, 865 So. 2d 382, 383 (¶3) (Miss. Ct. App. 2003) (quoting  Douglas v. Douglas, 766 So. 2d 68, 72-73 (¶15) (Miss. Ct. App. 2000)). 

As noted in Caldwell v. Caldwell, 823 So. 2d 1216, 1222 (¶24) (Miss. Ct. App. 2002), support orders “require nothing less than full and complete compliance.”

Thursday, September 8, 2016

Failure to File a Brief

One issue I keep seeing come up in appellate cases in Mississippi is the failure to file a brief.  In Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶12) (Miss. 2012), the Mississippi Supreme Court explained:

[F]ailure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error.  Automatic reversal is not required where the appellee fails to file a brief.  However, the appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed. 

(Internal citations and quotation marks omitted). Furthermore:
When matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee . . . .  If the record is large or complicated and [the appellant] thoroughly briefed the issues, provided applicable citations of authority, and presented an apparent case of error, then we should consider [the appellee’s] failure to file a brief as his confession of error and reverse the chancellor’s judgment.  But if the record can be conveniently examined, and the record reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, then we should disregard the fact that [the appellee] failed to file a brief.

Roberts v. Roberts, 110 So. 3d 820, 825 (¶¶10-11) (Miss. Ct. App. 2013) (internal citations
and quotation marks omitted).

An Appellant's brief is normally what is more costly to prepare just due to the search for error by the trial court along with supporting authority.  With an Appellee's brief though particularly in an appeal from the chancery court, the cost is relatively low based upon the standard of review. 

Tuesday, September 6, 2016

Paternity and Surname

Last Tuesday, the Mississippi Court of Appeals decided Flynn v. Bland located here.  One of the issues in the case was the changing of a minor child's surname upon determining paternity.  The Court of Appeals ruled that it was reversible error to not change the surname since the opposing party failed to present any proof to rebut the statutory requirements.  I am not going to comment much on the case since it is one of my appellate cases.  The issue of custody is currently up on rehearing. 

Friday, September 2, 2016

Continuing Tort

[W]here a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the date of the last injury, or when the tortious acts cease. Where the tortious act has been completed, or the tortious acts have ceased, the period of limitations will not be extended on the ground of a continuing wrong.

A “continuing tort” is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.  Stevens v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993)

Tuesday, August 30, 2016

Rule 1006

One issue I keep seeing from appeal cases in. Mississippi is Rule 1006 issues concerning admissibility.  The only requirements for a Rule 1006 summary to be admissible are: (1) the summary or compilation must be of evidentiary matter that is too voluminous to be examined conveniently in court; (2) the summary or compilation must be based on that evidence; and (3) the originals must have been made reasonably available for inspection and copying, and you should have the originals available in case the judge orders that they be produced in court.  The main thing on this is that the party who prepared the summary needs to testify.  I keep seeing people trying to use the opposing party to admit the contents of a summary they did not prepare.  It is not admissible this way and I have yet to find a case where the trial court has let one in like that.

Thursday, August 25, 2016

Reversing Evidentary Ruling

Reversing an evidentiary ruling on appeal is hard.  However, it can be done.  The admission of evidence is reviewed for abuses of discretion.  Burton v. State, 875 So.2d 1120, 1122 (¶6) (Miss.Ct.App.2004).   In other words, the Appellate Court will not disturb a trial court's decision unless it is clearly wrong.  Id.  However, the Appellate Court will find an abuse of discretion if a party shows clear prejudice resulting from an undue constraint on his or her own case or an undue lack of constraint on the opposing party.  Id.

Wednesday, August 24, 2016

Punitive Damages and Attorney's Fees

Yesterday, the Mississippi Court of Appeals decided Mississippi Valley Silica Company, Inc. v. Barnett, et. al  located here.  One of the issues raised was the reasonableness of the attorney's fees award.  This was the only issue reversed.  The Court found that the trial court made no findings of the McKee factors and as such the award had to be reversed for review of this issue only.  I have an earlier post here which shows a model form that can be helpful.  If the trial court rubber stamps the fee award,  the factor findings are in the affidavit.  As such, the Appellate Court has something to hang its hat on to affirm the award. 

Friday, August 19, 2016

Estate Asset Summary Proceeding

I was meeting with an attorney this morning and we discussed how to recover assets in an estate when certain things have come up missing.  Mississippi Code Annotated 91-7-103 provides a summary proceeding for the return of assets.  It is a pretty detailed statute and can be helpful.  I have had several of these cases come up lately. 

Thursday, August 18, 2016

Sexual Battery

The Mississippi Court of Appeals decided McManus v. State on Tuesday located here.  The issue in the case was sufficiency of the evidence on sexual battery.  The Court more or less stated that in a swearing contest it is up to the jury to determine who to believe.  These type of cases have to be defended aggressively in order to seek an acquittal.  Both sides in these type of cases can have motivations to be less than truthful.  Many times some kind of Alford plea may be the best resolution depending on the facts. 

Tuesday, August 16, 2016

Federal Motions to Compel

Some of the amendments to the Federal Rules of Civil Procedure last year dealt with changes to motions to compel discovery responses.  One of the changes required conferences with the court and with opposing counsel prior to filing a motion to compel.   It made this matter optional within the Court's discretion must several magistrates now have it in the scheduling orders.  In some ways this is good as it saves the Court time.  However, it other ways it is time consuming as most discovery issues get worked out prior to getting to a motion to compel.  It is only when opposing is normally being unreasonable that it gets to the point of court intervention. 

Monday, August 15, 2016

Contempt vs. Inability to Pay

I have been debating the award of attorney's fees on a case where one party is in contempt and another has the inability to pay.  Logically, I don't see why if a party has the inability to pay, they could not be awarded attorney's fees if they file for claims other than defending the contempt.  In theory, I think the clean hands doctrine would bar the attorney's fees on defending just the contempt. However, if a judgment is entered on the contempt, I think if a large amount of fees is expended on the modification they could be awarded.  I have been unable to find cases dealing with this issue.  However, I have a test case on this currently pending. 

Tuesday, August 9, 2016

Standard for a New Trial in Criminal Case Based on Newly Discovery Evidence

The Mississippi Supreme Court stated that the movant seeking a new trial based on newly discovered evidence must provide evidence which satisfies the following elements: (1) that the new evidence was discovered since the trial, (2) that when using due diligence the evidence could not be discovered prior to trial, (3) that the evidence is material to the issue and that it is not merely cumulative or impeaching, and (4) that the evidence will probably produce a different result or verdict in the new trial. Whether the newly discovered evidence presented will likely change the outcome if a new trial were granted is a determination made by the trial court in its discretion and will not be overruled by this Court unless it is an abuse of discretion.
Williams v. State, 754 So.2d 591 (¶ 7) (Miss.Ct.App.2000) (citations omitted).

Friday, August 5, 2016

Adverse Authority

I am still doing a lot of appeal work.  Here is one of the better articles on how to deal with adverse authority. 

Wednesday, August 3, 2016

Successive Bankruptcy

Many times it may be beneficial to file a second bankruptcy.  Below are the time limits for receiving a second discharge. The limits vary depending on what type of bankruptcy you plan to file (Chapter 7 or Chapter 13) and the type of bankruptcy in which you previously got a discharge.

Chapter 7 then Chapter 7—eight years. If you received a discharge in a Chapter 7 bankruptcy, you cannot get another Chapter 7 discharge unless the second case was filed more than eight years from the date you filed the first Chapter 7 case.

Chapter 13 then Chapter 13—two years. If you received a discharge in a Chapter 13 bankruptcy, you cannot get another Chapter 13 discharge unless the second case was filed more than two years from the date you filed the first Chapter 13 case.

Chapter 13 then Chapter 7—six years. If you received a discharge in a Chapter 13 bankruptcy, you cannot get a discharge in a Chapter 7 case unless you file the second case more than six years from the filing date of the Chapter 13. There is an exception. You can file right away if:

·         you paid 100% of the debt owed to your unsecured creditors in the Chapter 13, or

·         you paid at least 70% of the claims in the Chapter 13 case and you proposed the plan in good faith and used your best effort to repay creditors.

Chapter 7 then Chapter 13—four years. If you received a discharge in a Chapter 7 bankruptcy, you cannot get a discharge in a subsequent Chapter 13 case unless you file the Chapter 13 case more than four years from the filing date of the Chapter 7.

Tuesday, August 2, 2016

Jury Trial on Tax Appeals

Last week, the Mississippi Supreme Court decided Riverboat Corporation of Mississippi d/b/a Isle of Capri Casino v. Harrison County Board of Supervisors, Tal Flurry, Tax Assessor for Harrison County, Mississippi and City of Biloxi, Mississippi   The Court ended up finding that a party has the right to a jury trial for tax appeals.  I could see this going really bad for counties in so many ways. 

Monday, August 1, 2016

Extension of Time to File Appeal

Last week, the Mississippi Supreme Court decided Nunnery v. Nunnery located here.  The case dealt with whether the death of an attorney's family member constituted excusable neglect such that the reopening of the appeal period should be granted.  Under the circumstances of the case, the Mississippi Supreme Court in a divided opinion found that it was not.  The majority reasoned that the prejudice to the opposing party was too great under the circumstances.  The dissent argued that the prejudice was only minor since it was only missed by a few days.  The analysis seemed to largely hinge on the fact that the motion for a new trial was denied fifteen months after it was filed.  The lesson from this seems to be that excusable neglect is a high standard subject to an abuse of discretion review on appeal. 

Thursday, July 28, 2016

School Bullying

The Mississippi Supreme Court decided today Smith v. Leake County School District located here.   In this case, a school needs child was attacked by at least five other girls. Apparently she had been bullied for at least a  year.  The mother sued the school district and the trial court dismissed the case finding that the school district was immune from suit under the Tort Claims Act.  The Mississippi Supreme Court reversed.  The Court found:

"Examining discretionary-function immunity under Section 11-46-9(1)(d) and Brantley, the overarching function involved–holding students to strict account for disorderly conduct and preventing acts of bullying–is ministerial. And while Sections 37-11- 67 and 37-11-69 give Leake Central discretion as to how to prevent bullying, these statutes do not provide discretion as to whether to prevent bullying. Nor do these statutes override the ministerial statutory duty found in Section 37-9-69 to provide a safe school environment. For this reason, we reverse the judgment of the circuit court and remand the case to the circuit court for trial on the merits to determine whether Leake Central used ordinary care under Section 11-46-9(1)(b) of the Mississippi Code."

This case discusses what is needed to prove a bullying claim in order to impose liability on the school district. 

Wednesday, July 27, 2016

CLE Tomorrow

I am lecturing at a CLE in the morning concerning evidence.  A link to the topics and other info is here.  Hope to see you there. 

Tuesday, July 26, 2016

Double Jeopardy and Appeal by the Prosecution

Mississippi Code Annotated section 99-35-103(b) (Rev. 2015) states  that  the State
may  appeal  a  criminal  circuit-court  judgment  that  actually  acquits  the  defendant  where  a
question  of  law  has  been  decided  adversely  to  the  State.  However,  the  appeal  shall  not
subject  the  defendant  to  further  prosecution,  nor  shall  the  acquittal  be  reversed.  Id.  As such, the  State can  appeal  the  trial  court’s  decision;  however,  it  is  clear  from  the  plain
language  of  section  99-35-103  that  it  can  only  do  so  for  the  Court  to  decide  a  question  of  law and the Defendant may not be re-prosecuted. 

Thursday, July 21, 2016

Cumulative Error

Sometimes in a case a bunch of little errors end up leading to big error.  It is kind of like building blocks in a wall.  On appeal this can potentially get a reversal under cumulative error.  Blake v. Clein, 903 So.2d 710, 732 (2005).

Wednesday, July 20, 2016

Change of Venue

The Mississippi Court of Appeals decided Davis v. State yesterday located here.  This case gives a detailed analysis of what is necessary in order to get a change of venue in a criminal case.  The Court of Appeals ultimately found that the trial court erred in denying the change of venue as the State failed to put on any proof to rebut the presumption that a fair trial could not be had based upon the affidavits and such presented. 

Tuesday, July 19, 2016

Prison and Child Support

I have been working on several cases lately that deal with child support and prison.  The main issue my office has been dealing with is what support do you set if any when someone is in prison.  The best solution we have come up with is to treat it similar to a criminal fine with payments to start on the first day of the month sixty (60) days following release.  Normally, a condition of probation is to  support one's dependents also.  Going back to prison can be a good motivator for a payor to remain current. 

Friday, July 15, 2016

Police Suits

There have been a number of police suits in the past few weeks as noted in the news.  One of them is located here.  As most people know, I am kind of a form junkie and tend to collect pleadings.  If you want to know how to plead anything on these type of cases or look at how they can be defended, the complaint in this case and pleadings thereafter filed in the case are a good place to start.  I have litigated an interstate police case in the past and the most interesting part of the case is the conflict of laws issues that arise.  The most obvious area in this type of case is when the situation arises that a state employee of one state loses certain immunities because the law of the other state applies which does not grant them the same privilege.  The same analysis can also apply on damages caps, defenses, etc.

Wednesday, July 13, 2016

HIPPA Violations

There is no private right of action for violation of HIPPA which deals with health care records.  However, this can give rise to certain state law claims.  Found the following quote which is of interest and may be helpful in other contexts. 

“One only needed to consider the treatment of federal violations generally in garden variety state tort law ‘the violation of federal statute and regulations is commonly given negligence per se effect in state tort proceedings.” Restatement (Thread) of Torts (proposed final draft) § 14, comment a) See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts, § 36, p. 221, n. 9 (5th ed. 1984) (“[T]he breach of a federal statute may support a negligence per se claim as a matter of state law” (collecting authority)).

Monday, July 11, 2016

Dog Bites

I have litigated a few dog bite cases before.  Mississippi follows what is known as the dangerous propensity rule.  There must be “some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of” and “it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.” Poy v. Grayson, 273 So.2d 491, 494 (Miss. 1973). The dangerous propensity rule falls between a one bite rule and strict liability.  An injured person does not have to show that the dog or animal has previously bitten, but the animal owner does not incur liability for any and every bite.  The injured person must demonstrate that the animal exhibited some dangerous propensity or disposition of which the owner knew or should have known for liability to attach to the animal owner.

There are actually a lot of moving parts on these type cases.  Local ordinances, the breed of the dog, and notice by the owner of the problems are just a few areas that make this a complex area to practice in.  The best way to prove liability still seems to be the local ordinances.  Most towns now have local ordinances where is the dog gets loose or is not on a leash of a certain length, the owner is in violation of the ordinance which is negligence per se. 

Friday, July 8, 2016

CLE Today

Debbie Bell's family law CLE is in Oxford today.  I am planning on being there today.  It is a great opportunity to network with

Thursday, July 7, 2016

Case of Interest

The 5th Circuit had a recent case of interest dealing with cell phone messages.  The district court required the plaintiff in an FLSA case to submit her phone to a forensic examiner. It then awarded significant sanctions when the defendants' "inspection revealed that the text messages in question were not on [Plaintiff's] phone, that the mobile application allegedly containing such text messages was not on the phone, and that the phone appeared to have been reset or newly activated only three days before the forensic inspection." The Fifth Circuit found no abuse of discretion; footnote 2 of the opinion details several unsuccessful explanations and counterarguments offered by the plaintiff, which had no traction here but could be of interest in a future e-discovery dispute involving similar issues. Timms v. LZM, LLC, No. 15-20700 (July 5, 2016, unpublished).

Monday, July 4, 2016

Chart of Interest

Over the last few months, I have started to expand into criminal law more.  I had been having several requests to take some cases and found that I like the area more than I once did.  One of the more useful charts I have found is the Mississippi Crime and Punishment chart located here

Friday, July 1, 2016

New Laws Effective July 1

Below are several laws that take affect in Mississippi today:

OPEN MEETINGS — Senate Bill 2289 says individual officials could face fines of $500 to $1,000 for improperly closing meetings that should be open to the public. Until now, taxpayers have been footing the bill for the fines. The new law says that starting July 1, a person could be charged $100 per incident for improperly denying someone access to public records. The old law set a $100 fine, but didn’t specify that it’s for each incident.

BUDGET SUNSHINE — Senate Bill 2554 requires the Department of Finance and Administration to post state agencies’ budget information on websites that are open for public viewing. It requires the state College Board and the state Board for Community and Junior Colleges to post their budget information online by July 1, 2012.

NATHAN’S LAW — Senate Bill 2472 requires motorists to stay at least 10 feet from a stopped school bus. Violators could be fined up to $750 for a first offense. On a second offense, violators face a fine and up to a year in prison. The bill — written in response to the death of a Jones County child, Nathan Key — also would prohibit school bus drivers from using cell phones while transporting children, except in cases of emergency.

EMERGENCY OBSTRUCTION — Senate Bill 2426 sets up to six months’ jail time and a fine of up to $1,000 for intentionally blocking another person from receiving emergency assistance.

TIMBER HAULERS — Senate Bill 2192 requires people hauling timber at night to install a flashing or rotating light as close as practical to the end of the load. The light is required when the load extends at least four feet beyond the rear of the vehicle.

ATV SAFETY — Senate Bill 2196 requires anyone driving an all-terrain vehicle on public property to have a driver’s license or to complete a safety course. It also requires a helmet for anyone younger than 16 who’s driving or riding on an ATV on public property. The fine for violating either requirement is $25 to $50.

ABUSE OF THE VULNERABLE — House Bill 562 sets felony penalties for the third offense within five years of abusing a vulnerable person. Punishment would be one to five years in prison and a fine of $2,000 to $5,000.

FETICIDE — House Bill 2615 clarifies the state law related to injury or death of a fetus. Under the new law, a serious but nonfatal physical injury would be a felony. The bill says a minor injury to a fetus would be a misdemeanor. It says the law would not apply to any “legal medical procedure,” including abortions.

MEMORIAL STADIUM-JSU — House Bill 1158 transfers ownership of Mississippi Veterans Memorial Stadium from the state Department of Finance and Administration to Jackson State University.

HOMESCHOOLED STUDENTS — House Bill 636 says homeschooled students who are transferring into public schools may be tested to ensure they’re enrolled at the proper grade level.

Mississippi's statute dealing with religious freedom and same-sex marriage was struck down as unconstitutional at 11:30 last night. 

Tuesday, June 28, 2016

Oral Arguments

The Mississippi Supreme Court is set to hear oral arguments in Carter v. Carter today.  A copy of the cert petition is located here.  There are two issues that are fundamentally important in family law that will be reviewed.  The first, is whether a guardian ad litem is required to satisfy due process dealing with abuse or neglect as it relates to the minor child.  The second issue is how much discretion does the trial court have to find whether abuse or neglect is a legitimate issues.  To me, the second issue is really interesting.  I have been complaining for years about what amounts to just bad parenting vs. actual abuse or neglect.  There is a really good outline of this area in the cert petition worth reviewing on this topic. 

Wednesday, June 22, 2016

Privacy Rule Amendment

The Mississippi Supreme Court on June 16th struck MEC Administrative Procedures Section 9.A.5, which addresses what information must be redacted or omitted from pleadings and other filings with the court. The stricken provision read as follows:

"5. Home addresses to the city and state. All addresses shall be limited to the city and state. No street addresses or apartment numbers should be used."

This is helpful as pleadings were getting pretty diluted in my opinion with the privacy requirements now. 

Monday, June 20, 2016

CLE Thursday

I am speaking on social media and evidence Thursday in Tupelo.  A link to the topics is here

Friday, June 17, 2016

Mississippi Rules of Evidence - Major Change

Yesterday, the Mississippi Supreme Court issued a small order that has major impacts on the Rules of Evidence.  The Court noted that the title "Advisory Committee Note" must be substituted for the title "Comment" for each comment to the Mississippi Rules of Evidence. The Advisory Committee Notes represent commentary from the Advisory Committee and are neither the "Official Comments of the  
Court" nor "authoritative guides" for interpreting the Mississippi Rules of Evidence.   The link is below.  My reading of this is that the previous "comments" have no bearing on how to interpret the rules and cannot be used as authority.       

Wednesday, June 15, 2016

Speedy Trial

A federal opinion came down on the 10th in Patterson v. Hinds County located here.  It has one of the most detailed discussion of the Mississippi Speedy Trial requirements I am aware of.  As the opinion emphasized, county won the lawsuit but justice is what really lost. 

Tuesday, June 14, 2016

Recall of a Jury

On Thursday in Dietz v. Bouldin, the Supreme Court ruled that federal district courts can recall jurors after identifying errors in deliberations.  The decision involved the trial of a car wreck case in Florida. The defendant admitted liability and stipulated $10,136 in damages for plaintiff’s medical expenses. During deliberations, the jury sent out a note asking whether plaintiff’s medical expenses had been paid and, if so, by whom. As is typical in that situation, the judge gave a non-response that the information was not relevant to the verdict. The jury then returned a plaintiff verdict for $0.  The judge discharged the jury. Then, the judge realized that the verdict had to be for over $10,136. Over plaintiff’s objection, the judge recalled the jurors, all but one of whom were still in the courthouse. After questioning the jurors and determining that none had discussed the case with anyone, the judge gave clarifying instructions and ordered the jury to resume deliberations. The jury then returned a plaintiff verdict for $15,000.

The plaintiff appealed and argued for a new trial. The Ninth Circuit affirmed.  In a 6-2 decision, the Supreme Court ruled that it was within the trial court’s inherent power to recall the jury. But the court should be careful when exercising the power and do so only in civil cases after determining that the jury was not tainted after discharge. The judge should question the jurors about whether they discussed the case with anyone, accessed their smartphones or the internet or were impacted by the parties’ reaction to the verdict. Justices Thomas dissented with an opinion joined by Justice Kennedy. The dissent argued that the better rule is the common law bright line rule that once discharged, the judge cannot recall a jury.

Monday, June 13, 2016

Need for Additional Insurance

I read a good article this morning for practicing attorneys about the need for adequate insurance coverage for non-malpractice issues.  The article is located here.  This has one of the better discussions about employee liability, employee drivers, etc. that an attorney needs to have coverage for. 

Thursday, June 9, 2016

Unjust Enrichment

Unjust enrichment still has various applications in Mississippi law.  Here is the general law that is applicable. Unjust enrichment “applies to situations where there is no legal contract and ‘the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another.’” Miss. Dep’t of Envtl. Quality v. Pac. Chlorine, Inc., 100 So. 3d 432, 442 (Miss. 2012) (quoting Powell v. Campbell, 912 So. 2d 978, 982 (Miss. 2005)).  In these circumstances, equity imposes “a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.” Estate of Johnson v. Adkins, 513 So. 2d 922, 926 (Miss. 1987).  The amount of recovery for unjust enrichment is “that to which the claimant is equitably entitled.”  Id.

Unjust enrichment is an equitable remedy closely associated with "implied
contracts" and trusts. In Hans v. Hans, 482 So.2d 1117 (Miss. 1986), the Court said:

“The doctrine of unjust enrichment or recovery in quasicontract applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.”

482 So.2d at 1122. And, in Magnolia Federal Savings & Loan v. Randal Craft
Realty, 342 So.2d 1308 (Miss. 1977):

“[t]he terms unjust enrichment and restitution are modern designation for the doctrine of quasi-contracts and the basis for an action for unjust enrichment lies in a promise, which is implied in law, that one will pay to the person entitled thereto which in equity and good conscience is his.”

342 So.2d at 1311.

Wednesday, June 8, 2016

Modification as Voluntary or Foreseeable

The circumstances that lead to the material change that bring rise to modification of child support, must not have been reasonably foreseeable at the time of the last order. Morris v. Morris, 541 So.2d 1040, 1042 (Miss. 1989). Modification of a divorce decree can occur only if there has been a material change in the circumstances with one or more of the parties. Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995). The change must occur as a result of after-arising circumstances  of the parties not reasonably  anticipated at the time of the agreement.  Id.  This burden is not met by a showing of reduced income when that income was voluntarily chosen. Ballard v.  Ballard, 843 So.2d  76,  79  (Miss.  Ct.  App.  2003) (citing Lahmann v. Hallman, 722 So.2d 614 (Miss. 1998).

Mississippi case law is replete with examples of child support and/or alimony modification petitions being denied because the obligor voluntarily worsened his or her financial position. In Ballard, an obligor who quit his job to open a contracting business and experienced reduced income was denied modification.  In Varner, a veterinarian whose income decreased after he voluntarily left his employer to open a solo practice was denied modification. In Tingle v. Tingle, 573 So.2d 1389 (Miss. 1989), an obligor who left his job to go back to school was denied modification.  In Yancey  v.  Yancey,  752 So.2d  1006  (Miss.  1999), an obligor who resigned from  his  job  after  a  disagreement  with  his supervisor  and  was  unable  to  find  new employment  was  also  denied modification  because  his job  departure  was  “fully  voluntary.”   Yancey at 1010. In Lahmann, the obligor quit his job to become a part-time nightclub singer and was denied modification. Lahmann at 622.

Monday, June 6, 2016

New Standard on Habitual Cruel and Inhuman Treatment

Last Thursday the Mississippi Supreme Court decided Pittman v. Pittman located here.  The issue in the case was whether the chancellor erred in failing to grant a divorce to the wife in spite of child abuse by the husband against the parties' minor child.  The Mississippi Supreme Court remanded the case finding that the chancellor needed to make some finding on the record regarding this.  This case seems to indicate the habitual cruel and inhuman treatment may be found based upon a spouse's conduct to third parties depending on the affect on the other spouse.  This appears to slightly expand or perhaps clarify what conduct may be found to be revolting such that a divorce is proper. 

Friday, June 3, 2016

New Standards on Trial

 The Mississippi Supreme Court decided Reynolds v. Allied Emergency Services, PC, et al. yesterday.  The opinion is located here.  It is a strange set of facts but precedent setting.  After hearing all the evidence in a medical-malpractice trial, the jury retired to deliberate.  At some point during their deliberations, they requested a copy of the jury instructions, which the bailiff provided.  But instead of providing the approved set of instructions, the bailiff mistakenly provided a set that the defendants previously had proffered, which included a peremptory instruction.  The jury returned a unanimous defense verdict, and the parties left the courthouse.  When the trial judge discovered the jury instruction mistake later that afternoon, he called the parties back to the courthouse and later
ordered a new trial.  The defendants then filed a motion to enforce the high/low settlement agreement
that the parties had entered into prior to trial.  The trial judge agreed with the defendants that
a new trial was not allowed under the agreement and rescinded his previous order granting
it.   The agreement was more or less a waiver of appeal rights by both parties with an agreement that the defense had a maximum they would pay no matter what the jury verdict was. 

The Court reasoned that the verdict was not valid. The basis for this finding was precedent stating that a verdict with irregularities present is void. From the opinion:
It is difficult to imagine a scenario more prejudicial to a party than what occurred here. The jury mistakenly was provided a copy of the defendants’ proffered instructions–some of which had been withdrawn, and some of which had been outright denied–and the first instruction they read told them to find for the defendants…
Since there was no valid verdict, the condition precedent to a high/low agreement (a verdict) was not met. Therefore, Plaintiff gets a new trial.  I could see this precedent as having far reaching consequences to both plaintiffs and defendants on appeal.  Some of the reasoning may also have application in criminal cases.  I could see the Mississippi Supreme Court in future opinions now having to distinguish what is harmless error vs. what justifies a void verdict. 

Wednesday, June 1, 2016

Law of the Case Doctrine

The law of the case doctrine provides that  “[it is] the practice of courts generally to refuse to reopen what has previously been decided.”  Cossitt v. Alfa Ins., 726 So. 2d 132, 141 (¶47) (Miss. 1998).  This doctrine may be used in ongoing litigation and also cases returning on appeal.  A discussion of this is in Larson v. Larson decided yesterday by the Mississippi Court of Appeals located here

Friday, May 27, 2016

Utah Case of Interest

The Utah Supreme Court has struck down an attorney fee schedule for workers' compensation cases and the law that authorized it.
The court ruled on Wednesday in a case challenging the sliding-scale fees and a fee cap established by the Utah Labor Commission. The Legal Profession Blog has highlights from the opinion (PDF).
The supreme court said it has the exclusive authority to govern law practice under the state constitution, and that includes the regulation of attorney fees. The separation of powers doctrine bars the legislature from giving that power to the labor commission, the court concluded.
The schedule set attorney fees at 25 percent for the first $25,000 of the award, 20 percent for the next $25,000 of the award, and 10 percent for awards over $50,000. The fee cap is $18,590.
The fee schedule was intended to protect unsophisticated litigants. Despite those good intentions, the court said, many attorneys are economically unable or unwilling to take on injured workers' cases. The schedule limits not only the quantity of workers' comp lawyers, it also limits their quality, the court said.
Lawyers have an incentive to settle once they reach the capped amount, and they may be opposed by lawyers for employers and insurers with no fee limitations, according to the court.
The court said it was declining to enact its own fee schedule at this time.

Wednesday, May 25, 2016

Mississippi Speeding Statutes List

Below is a list of the major of the Mississippi Statutes dealing with speeding which may be relevant in an accident.

1.            63-3-309               Rules for intersections, yielding right of way

2.            63-3-311               Rules for flashing lights, yielding right of way

3.            63-3-501               Maximum speeds for highways

4.            63-3-505               Conditions under which speed must be decreased:

                                                a.            approaching an intersection

                                                b.            approaching a curve, cresting a hill

                                                c.             narrow or winding roadway

                                                d.            trucks and tractor trailers must reduce speed to 45 mph during inclement weather

5.            63-3-509               Minimum speed limits for highways

6.            63-3-601               Vehicles to be operated on right half of roadway unless:            

                                                a.            passing another vehicle

                                                b.            right roadway is closed

                                                c.             there are three marked lanes

                                                d.            road is marked for one way traffic

7.            63-3-609               Rules for passing vehicles proceeding in same direction

8.            63-3-611               Rules for passing vehicles on left side of roadway

9.            63-3-613               Rules for passing vehicles on right side of roadway

10.          63-3-615               Passing school busses

11.          63-3-619               Distances to be maintained between vehicles:

                                                not more closely than is reasonable and prudent

12.          63-3-703               Turning at intersections

13.          63-3-707               Signaling of turns and stops

                                                a.            signal must be given continuously

                                                b.            no stopping or slowing suddenly without signal

14.          63-3-803               Vehicle turning left at intersection yields to vehicles coming from opposite direction.  Once ROW is yielded, vehicle turning left may proceed and all other vehicles must yield                                                   ROW

15.          63-3-901               No stopping, standing or parking:

                                                a.            on a sidewalk

                                                b.            in front of a public or private driveway

                                                c.             within an intersection

                                                d.            within 10 feet of a fire hydrant

                                                e.            on a crosswalk or within 20 feet thereof


16.          63-3-1112            Driver has duty to avoid collision with a pedestrian

17.          63-3-1201            Reckless driving – willful or wanton disregard for the safety of others

18.          63-3-1213            Careless driving

19.          63-11-30               Driving under the influence of alcohol