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.

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. 

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."

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).

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. 

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. 

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).