Random Appeal Issues

 Here is some random appeal issues of interest I have come across recently:

“A prisoner’s delivery of a notice of appeal to prison authorities for mailing within thirty days after the entry of the judgment or order appealed from effects a timely filing under [Mississippi] Rule [of Appellate Procedure] 4(a).” Melton v. State, 930 So. 2d 452, 454 (¶7)(Miss. Ct. App. 2006).

Rule 5.04 of the Uniform Civil Rules of Circuit and County Court Practice provides that a “party desiring to appeal a decision from a lower court must file a written notice of appeal with the circuit court clerk,” and “[a] copy of that notice must be provided to all parties or their attorneys of record and the lower court or lower authority whose order or judgment is being appealed.” In a recent decision, the supreme court found that a petitioner’s failure to provide MDOC with notice of his petition for judicial review resulted in the circuit court lacking jurisdiction over the appeal. Smith v. State, 293 So. 3d 238, 242-43 (¶22) (Miss. 2020).

New Causation Case

On Tuesday, the Mississippi Court of Appeals decided Smith v. Minier, 2021-CA-01284-COA (Civil – Wrongful Death).    In the case the Court of Appeals reversed dismissal on summary judgment of a wrongful death claim where the decedent died of chronic liver failure five months after a car wreck, holding that there was a fact question as to whether the other driver’s actions were the proximate cause of the decedent’s use of pain medication, misuse of pain medication, and resulting death.

This is a must-read if you handle negligence claims. The Court of Appeals confessed occasional, prior inconsistencies in the Court’s use of the term “proximate cause” and took the opportunity to clarify:

Regarding the instant case, the Court held:

Mississippi Small Estate Affidavit

I was working on an issue today to settle a small injury case where a person died from unrelated issues to the wreck before the case settled in Mississippi.   There is a statute that deals with allowing an affidavit to settle the case with.   The statute is below and many people do not seem to know about it.  

Miss. Code § 91-7-322

Current through 2/20/2023

Section 91-7-322 - Affidavit of successor

(1) Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment when due of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, as defined herein, or in a manner as directed by the successor, upon being presented an affidavit made by the successor stating:

(a) That the value of the entire probate estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed Seventy-five Thousand Dollars ($75,000.00);

(b) That at least thirty (30) days have elapsed since the death of the decedent;

(c) That no application or petition for the appointment of a personal representative of the decedent is pending, nor has a personal representative of the decedent been appointed in any jurisdiction;

(d) The facts of relationship establishing the affiant as a successor of the decedent ;

(e) Directing the manner of distribution of the debt or property; and

(f) Acknowledging the successor's obligation to distribute the debt or property to those having a superior right to same.

(2) For the purposes of this section, "successor" means:

(a) The decedent's spouse;

(b) If there is no surviving spouse of the decedent, then any child of the decedent;

(c) If there is no surviving spouse or children of the decedent, then to any grandchild of the decedent; or

(d) If there is no surviving spouse, children or grandchildren of the decedent, then either parent or any siblings of the decedent .

(3) Any minor or incapacitated adult who is a successor of the decedent may be represented by a guardian, natural or appointed, conservator, custodian, or other personal representative, as appointed by the court or by power of attorney.

(4) Except as otherwise provided in Sections 93-20-209 and 93-20-431, the representative of a minor or incapacitated adult as defined in subsection (3) of this section shall receive any property or payments from the decedent's estate for the sole use and benefit of said minor or incapacitated adult.

(5) The successor of a decedent, upon complying with the provisions of subsection (1) of this section, shall be empowered to negotiate, transfer ownership and exercise all other incidents of ownership with respect to the personal property and instruments described in subsection (1) of this section.

(6) Any person paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to the provisions of subsection (1) of this section shall be discharged and released to the same extent as if such person had dealt with a personal representative of the decedent. Such person shall not be required to see to the proper application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered, in accordance with the provisions of subsection (1) of this section, refuses to pay, deliver, transfer or issue any personal property or evidence thereof to the successor, such property or evidence thereof may be recovered or its payment, delivery, transfer or issuance compelled upon proof of the successor's right in a proceeding brought in chancery court for such purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made shall be answerable and accountable to the personal representative of the estate, if any, or to any other person having a superior right.

Setting Aside A Divorce

A potential client called today asking about setting aside his divorce.   

Mississippi Code Annotated § 93-5-31 provides:   

“The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.”

Apparently not many attorneys are aware of the statute.   

Public Records Requests

 On Tuesday, the Mississippi Court of Appeals decided Humphrey vs. City of Senatobia located here.    This was a case I was hired on post trial.     As is the my normal practice, I am not going to comment too  much since we are still in the rehearing period.    I would advise that everyone read it to get a general understanding of the Public Record Act.  

Book Seller Liability for Defamation

 A federal district court has ruled that Barnes & Noble, Amazon and Books-A-Million cannot be held liable for allegedly defamatory statements published on their websites in book descriptions supplied by a print-on-demand publisher. Parisi v. Sinclair, --- F.Supp.2d ---, 2011 WL 1206193 (D.D.C. March 31, 2011).¹ The case represents a helpful precedent for e-commerce websites and Internet publications under Section 230 of the Communications Decency Act (CDA). The case also sets a high “fault” standard in defamation claims against booksellers in connection with their distribution of books. The full opinion can be found here.

Tennessee Probate of Tort Claim?

 I was reading some interesting comments this morning on whether a probate claim that sounds in tort has to be filed with the Probate Court in Tennessee.   If your claim sounds in tort; in those types of cases, a single copy of the complaint (under a notice of filing) must be filed in the probate court. See Est. of Patten v. Batchelor, 664 S.W.2d 698, 701 (Tenn. Ct. App. 1983) ("[T]he proper procedure in a case such as this one, as in others sounding in tort, is to put the probate court on notice by filing a copy of the complaint so that final distribution of the estate may be held in abeyance pending conclusion of the tort suit."  (Citation omitted.)); Herring v. Est. of Tollett, 550 S.W.2d 660, 661–62 (Tenn. 1977); see also 2 Jack W. Robinson, Sr. et al., Pritchard on the Law of Wills and Administration of Estates Embracing the Law and Practice in Tennessee § 735, passim (Lexis Advance 2023).

 Further, I would also be remiss not to point out that the ninety days to file a motion to substitute after a suggestion of death is filed can be enlarged on a showing of "cause" (as opposed to the higher standard of "good cause") if the enlargement is requested before the time to act expires. See Tenn. R. Civ. P. 6.02. And such enlargement is to be "allowed liberally" if moved for before the time to act expires. Id., Advisory Comm'n Cmt.