Alienation of Affection Jurisdiction

The Mississippi Supreme Court decided Francesca Nordness v. Paige Faucheaux yesterday.  The case gives detailed information concerning personal jurisdiction in an alienation of affection case.  The main issue in the case was that Nordness never knew Faucheaux's husband was a Mississippi resident.  The relevant language from the opinion is below. 

"Our review of United States Supreme Court precedent makes it abundantly clear that our courts cannot constitutionally assert personal jurisdiction over Francesca in this case. And our own jurisprudence supports this holding. In every case where Mississippi courts have exercised personal jurisdiction over nonresident paramours, our courts have made it clear that the paramours knew they were engaged in a relationship with a person from Mississippi."

This case also has an extremely detailed discussion of personal jurisdiction for other cases. 

Daubert Testimony

The Mississippi Court of Appeals decided Leslie Stingley v. Trinity Highway Products, et al.  on Tuesday.  Stingley was doing 65 mph on I-20 in Clinton when he passed out and hit the guardrail.  He ended up having one of his legs amputated below the knee.  He filed suit against the designers, testers, manufacturers of the “Regent C”  guardrail as well as the contractor and subcontractor who installed it.  The trial court granted summary judgment on the design of the guard rail.  This case has some very detailed discussions regarding the interplay of Daubert, product liability, and sufficiency of the testimony.  The majority viewed the evidence as sufficient to exclude the expert because the opinion had not been subjected to peer review.  There is a pretty strong dissent in the case that stated the principals used by the experts were subject to  peer review from my reading so that it is not necessary that the actual opinion of how the guard rail was defective was not necessary to be peer reviewed.  I would expect this case to go up on cert.  As the dissent argued, there appears to be so many factual disputes that it is up to the jury to sort out. 

Employment Case of Interest

The Mississippi Court of Appeals decided Southern Health Corp. of Houston v. Carol Crausby  yesterday.  The issue dealt with whether a business can have a conspiracy to fire its own employee.   Crausby worked as an ER nurse at Trace Regional Hospital in Houston, Mississippi.  Another employee, Dr. Victor Horn, demanded that she be fired.  Crausby sued and was awarded  $80,000 from the hospital on her claim that its administrators had conspired with Dr. Horn to tortiously interfere with her employment relationship with the hospital. The hospital argued that  it cannot be held liable for interfering with its own contract because tortious interference can occur only when the contract is “between another and a third person.” The Court of Appeals agreed but did not grant relief on this issue because it was not raised in the lower court.  However, the Court reversed and rendered on the sufficiency of the evidence.  The Court found that there was no unlawful purpose in seeking to have her fired and so there could be no tortious interference. 

Medical Malpractice Case of Interest

Last Thursday, the Mississippi Supreme Court affirmed a medical malpractice case without a full decision in Mallette v. Dye located here.  This is a medical malpractice case with a factual dispute over where the case should be filed.  Ultimately, the case was a 4-4 split.  When this happens, the decision of the trial court is affirmed.  The issue appears to be that the malpractice potentially occurred in two (2) separate counties.  The trial court had refused to transfer the defendants who were in a separate county.  This would potentially result in two (2) separate suits being necessary.  The briefs in the case are worth filing away. 

Change to Mississippi Rule of Evidence 105

Last week, per this order, Mississippi Rule of Evidence 105 was changed. Here is how it reads now. The prior version is on the link. 

MRE 105 Limited Admissibility

"If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, unless expressly waived or rebutted, upon request, shall restrict the evidence to its proper scope, and contemporaneously instruct the jury accordingly, and give a written instruction if requested."

Res Judicata

The Mississippi Supreme Court applied res judicata to medical bills in the following case yesterday: In the Matter of the Dissolution of James Hanlin and Melanie Hanlin .  The parties were divorced in 2007 and certain medical bills went unpaid.  Ms. Hanlin knew the medical bills were unpaid in 2009 when she was in court but did not pursue them.  The Court found that the claim could and should have been brought then.  Therefore, the later claim was barred.  This is why it is important to have a party be sure to raise any issue they have in a current proceeding and not wait until later.   

Proposed Changes to Local Rules

The Northern District of Mississippi is looking to make several changes to the Local Rules.  Click here for the proposed changes. Comments are due by July 1. Some highlights:

• motions (not memorandum briefs) limited to 4 pages, no citations/arguments;
• pre-removal discovery deemed served as of date of case mgmt. conference (except, for some reason, for Rule 34 requests);
• parties no longer allowed to have smartphones in court.

Worker's Comp Medication

The Mississippi Court of Appeals decided Bellsouth Telecommunications v. Larry Harris yesterday located here.  The issue was that Mr. Harris had renal failure as a result of the medications he had to take for his compensable worker's comp injury.  He applied for benefits as a result and was initially denied.  The Commission eventually gave him the benefits and the Court of Appeals affirmed.  Based on this, any additional injury that flows from the compensable worker's comp injury seems to also be compensable as long as a causal link is established.   

Statute of Interest

I am working on a brief on a land dispute this week.  I found the following statute concerning adjoining landowners which may be of use. 

Mississippi Code Annotated § 89-13-1. Adjoining owners to contribute.  Persons owning adjoining land or lots, or being lessees thereof for more than two years, shall be bound to contribute equally to the erection of fences on the line dividing the land or lots, if the land or lots on their respective sides be used by the owner or lessee thereof for purposes of cultivation, or for horticultural purposes, or for the purpose of pasturing cattle, horses, hogs or sheep, or if a lot be used as an inclosure for any other purpose; and each party shall be bound to contribute equally toward keeping the party fences in good repair so long as the land or lot be so used. An owner shall not be bound to contribute to the erection of a party fence, either built or to be built, or to keeping the same in repair, who may prefer to build a fence and to leave a lane on his land between himself and the adjoining owner. But the failure to erect such fence for the space of sixty days shall be deemed an abandonment of the intention to do so, and a determination to adopt the fence built, and the person so failing shall then be bound to pay his proportion of the value of the party fence.

From my reading of this, adjoining landowners are equally required to maintain a fence under certain circumstances.  I am about to litigate what "any other purpose" means under the statute.  The statute has been around since the 1930s best I can tell with no interpretation of that provision. 

Free Reading of Interest

The Manual of Complex Litigation is located here.  It is a useful book with forms for how trial judges handle complex cases. 

Consolidate Record on Appeal

Many times, cases are appealed multiple times particularly on domestic matters.  One way to save a lot of money on these is to move for the record to be consolidated for purposes of appeal.  This is particularly true where the issues involve a remand with specific instructions to the trial court.  Often, no new evidence is presented and the trial court issues an opinion.  By consolidating the appeals, this often saves clients several thousand dollars. 

Liens

Mississippi currently has no statutory hospital lien statutes like Tennessee does.  That being said, many hospitals and health insurance policies have contractual liens as part of their policy and/or agreements for treatment.  This is why I have my office call to check these.  No one likes to think out they have to pay back a few thousand dollars after the fact. 

Property Valuation

On Tuesday, the Mississippi Court of Appeals decided Marter v. Marter for the second time located here.  The issue in the case was property valuations.  The valuations noted by the parties varied widely.  Using what information the chancellor had, the court determined the value was $110,000.00 which the Court of Appeals affirmed.  The relevant language cited is below:

"It is our conclusion that the chancellor, faced with proof from both parties that

was something less than ideal, made valuation judgments that find some
evidentiary support in the record. To the extent that the evidence on which the
chancellor based his opinion was less informative than it could have been, we
lay that at the feet of the litigants and not the chancellor." 

Premises Liability

Last Thursday, the Mississippi Supreme Court decided Bennett v. Highland Apartments located here.   Bennett and her children were the victims of a home invasion at the Highland appartments. The assailants were never caught.  The Bennetts filed a premises liability complaint against the apartment complex.  On appeal, the Court of Appeals reverses finding that the plaintiffs’ expert noted that there were 1000 calls for service at the complex within a five year period and that reasonable jurors could have found that the lack of an armed security guard and a gate the was not in working condition were substantial factors in bringing about the harm to the plaintiffs.  The Mississippi Supreme Court granted  cert to expand on the Court of Appeals’ analysis on the summary-judgment issue, and to explain why the expert testimony created a triable issue.  The relevant language to file away is below:

"Our Lymas holding should be understood to hold that a plaintiff may not prove that a premises owner’s failure to provide security measures proximately caused injuries based on cursory and unsupported statements of causation by an expert witness. But where, as here, that expert testimony delves into the detail of how the premises owner’s failure to employ those measures caused the injury, and provides support to show that those measures would work to prevent the injury, the plaintiff is at least entitled to submit that issue to a jury."

From my reading, if you show a prior pattern of problems, combined with some expert testimony, the issue goes to the jury. 

Contempt While on Appeal

I have had a few articles lately on the affect of an appeal.  The issue is what the trial court can do while the case is up on appeal.  Generally, without filing a supersedeas bond, either party may enforce the judgment for contempt purposes.  See Ladner v. Lander, 843 So.2d 81 (Miss. Ct. App. 2003) located here.  The language in Ladner even states that contempt would have been the better course where a party refuses to comply while the appeal is pending.  Now, a possible counter to this is that a party cannot be held in contempt of a void order.  What happens if the opinion is reversed?  To me, the contempt could potentially be set aside although out of the abundance of caution, I think appealing it and moving to consolidate the issues would be a better course. 

Re-Adoption

Mississippi provides a process to register a foreign adoption to prevent the old problem of having to re-adopt a child which had to be done in the Mississippi.  The relevant statute is Mississippi Code Annotated 93-17-301.  The statute was effective as of July 1, 2014.  The statute has the relevant forms in the code section. 

Divorce Valuation Dates

Valuation dates in divorce is getting to be the hot button issue currently in family law matters.  On Tuesday, the Mississippi Court of Appeals decided McKissack v. McKissack located here.  The case had originally been remanded due to a CD being ruled to be separate property.  On remand, the chancellor used the original valuation dates from trial and ruled that any accumulation or debt since the divorce was separate property.  The Court of Appeals affirmed this.  To me, this is the area where getting some detailed charts can save a client a lot of money potentially.   

Setting Aside a Divorce

The Mississippi Court of Appeals decided Collins v. Collins located here yesterday.  The issue in the case was whether a divorce should be set aside for not being equitable over a year later.  There were apparently a number of accounts the wife said she was not aware of.  The Court of Appeals said no.  They noted that Rule 60 requires the motion to be brought within one (1) year.  Additionally, it was noted that 8.05s were prepared but the wife did not look at them.  From reading the opinion close, there are a few potential holes I could see coming up.  In this case, the chancellor actually required 8.05s to be produced prior to the decree being signed.  I think this is what really saved the case.  The other issue I see is whether a waiver of financial declarations is valid.  I think they are valid, but without a financial declaration being completed, a former spouse could have to put on some proof of knowledge by the other spouse if a fraud claim is raised. 

Amended Rule 5.1

The Mississippi Supreme Court amended Rule 5.1 of the  Mississippi Rules of Civil Procedure last week.  A copy of the order is here.  The rule allows for discretionary redacting of social security numbers, private account information, and t names of minors.  I presume this could be done in a divorce case involving minor children.  However, I could see a chancellor ordering the full name of a child be provided and I would see a problem if police assistance is needed in enforcing an order. 

Discovery Rule - Medical Malpractice

The Mississippi Supreme Court decided Holaday v. Moore yesterday which is located here.  The case dealt with the discovery rule in medical malpractice cases.  The main focus of the case was that whether a party was reasonably diligent in discovering medical malpractice that occurs outside the statute of limitations.  The Court concluded that whether a party is reasonably diligent is an issue of fact for the jury.  There was a pretty strong dissent in the case.  This opinion has probably one of the best discussions I have seen on both sides of the discovery rule and the current state of the law on this issue in Mississippi.