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.

Receipts

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. 

 

 

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. 

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."

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. 

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.”

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. 

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. 

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)