Supersedeas Bond

Supersedeas bond is authorized under Rule 8 of the Mississippi Rules of Appellate Procedure.  The rules specifically require normally that you first ask the trial court to grant you relief in the setting of the bond.  In the event the trial court refuses to do so, a party can ask the appellate court to.  I am surprised that more people do not apply for a bond on property division cases or on cases where there are large attorney's fees awarded.  If a person has good credit, many insurance companies are willing to issue a bond.  In the right circumstances, this might give a party some good leverage while an appeal is pending to resolve a case. 

Appellate Mediation

The Mississippi Bar is looking at starting an appellate mediation group.  It would be completely voluntary.  This could be beneficial if both parties are willing to talk.  I would expect this to be helpful on personal injury cases where there is the possibility of a new trial being ordered.  On most domestic cases, the party who got the better deal at trial rarely wants to discuss changing anything has been my experience.    A little more information on it is below which the bar sent out today. 

On January 19, 2012, the Alternative Dispute Resolution (ADR) Section of The Mississippi Bar filed a Petition for Order Authorizing Program for Appellate Mediation. On August 2, 2012, the ADR Section filed an amendment to its petition. The Rules Committee on Civil Practice and Procedure referred the ADR Section’s proposal to the Supreme Court’s Advisory Committee on Rules. After due consideration, the Advisory Committee on Rules has proposed a voluntary appellate mediation pilot program. Follow this link http://courts.ms.gov/rules/rulesforcomment/rulesforcomment.html for the Advisory Committee on Rules’ proposal along with the ADR Section’s petition and amendment. Comments must be filed with the Clerk of the Supreme Court, Gartin Justice Building Post Office Box 249, Jackson MS 39205-0249 by May 2, 2104

Affidavit of Support - Immigration

As part of an immigration proceeding, a sponsor (often a future spouse) signs an affidavit of support.  This can have all sorts of ramifications in divorce.  The Form I-864 Affidavit of Support is a legally enforceable contract, meaning that either the government or the sponsored immigrant can take the sponsor to court if the sponsor fails to provide adequate support to the immigrant. In fact, the law places more obligations on the sponsor than on the immigrant -- the immigrant could decide to quit a job and sue the sponsor for support. There appears to be no law on this in Mississippi.  Many courts have interpreted this as a support provision enforceable by the state court and may be a factor in equitable distribution. 

Setting Aside Default Judgment

The Mississippi Court of Appeals decided Ice Plant v. Grace located here on Tuesday.  The Plaintiff in the case was involved in an 18 wheeler accident.  The Plaintiff sued the driver and his employer.  Are both defendants were served, neither ever responded and a judgment was entered for $350,000.00. The Defendants later moved to set aside the judgments under Rule 60.  The driver was successful because it was shown that he was not personally served and the trial court had no choice but to set aside the judgment.  The employer was not successful and appealed.  The Court of Appeals affirmed the refusal to set aside the judgment.  I think this was largely as the original damages hearing was transcribed so there was a basis to show the damages were not reasonable.  As such, there was no abuse of discretion.  That is a good practice pointer on the default judgments.  If a record is made, it is a lot harder for the defendant to set it aside. 

Arena Liability

Trial Magazine had a good article this month in it on area liability under a dram shop theory.  Under a dram shop claim, a bar or other seller of alcohol may be liable for injuries caused by someone they sell alcohol to who is visibly impaired.  I am surprised this is not litigated more.  However, there is an interesting defense here.  Lots of times the people get drinks from their friends instead of buying the drinks directly.  This will normally relieve the bar or other institution of liability.  For an example of this see Heather Widner, Administratrix of the Estate of Glenn Edward Smith v. Chattanooga Entertainment, Inc. d/b/a Electric Cowboy. 

Law of the Case Doctrine

The Mississippi Supreme Court decided Lee v. Thompson located here last week.  The case involved fees incurred in a class action suit dealing with diet drugs.  This was the second appeal and dealt with whether certain fees should be refunded to the Plaintiff that was overcharged.  The trial court found that certain amounts should be and this was appealed.  This was affirmed.  The appellant tried to reargue a few points from the prior appeal.  However, the Court noted the law of the case doctrine applied. According to the law of the case doctrine, a court’s mandate is binding on the trial court on remand, unless an exception applies. Simpson v. State Farm Fire & Cas. Co., 564 So. 2d 1374, 1376 (Miss. 1990) (overruled in part on other grounds). This Court has stated that: The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure. Id. at 1377 (quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So. 2d 557, 558 (1961)). The doctrine has its basis in the principles of res judicata. Cont’l Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 479, 142 So. 2d 200, 206 (1962).

There are a few exceptions to this, but none of them applied to the facts as presented.  The moral of the story is that you need to get everything in on the first appeal or you will not be able to argue it on the second one. 

School Suit

The Mississippi Supreme Court decided Moss Point School District v. Stennis located here last Thursday.  There is a rise in school districts being sued for various things.  In this case, a student sued for injuries sustained in an off-campus school fight.  There had apparently been an incident on campus earlier in the day.  The trial court denied summary judgment to the school district which filed for interlocutory appeal.  The Mississippi Supreme Court reversed but in an unusual twist reversed for more fact finding and consideration of the school handbook.  The issue the Court latched onto was that while the fight was not on campus, the school had adopted a policy in its handbook of calling the police if a fight happens on campus which was arguably violated.  This arguably lead to the incident off campus.  This is an issue of first impression and may be something that creates a lot more litigation against school districts in the future.