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.