Interesting Old Case

  A person acting in loco parentis has a right to custody of a child, but only against third persons. Farve v. Medders, 241 Miss. 75, 128 So.2d 877, 879 (1961).   This might give some grounds for an unmarried individual living with a parent to obtain custody over family members.  

Liability of Parents for Property Damage of Child

 There are a number of situations in which you may be held liable for your child’s property damage.   According to Mississippi Code section 93-13-2, parents are held liable when their children maliciously or willfully” damage another person’s property.   Under Mississippi law, parents could be held liable for up to $5,000 of property damages. Note that this does not include bodily injury or pain and suffering.

Bankruptcy and Attorney's Fees

 

Chapter 7 debtor's prepetition personal injury counsel was entitled to share of settlement later obtained by Chapter 7 trustee:

 Under N.Y. Jud. Law § 475, a law firm that had represented the debtor for nine years in a personal injury lawsuit prior to the debtor's Chapter 7 bankruptcy filing was entitled to a charging lien on the settlement proceeds for the "reasonable value" of the services that the law firm provided where the Chapter 7 trustee subsequently settled the litigation. The court concluded that the law firm was entitled to fees of $22,888.22 and expenses of $3,447.13, for a total of $26,335.35.

 In re Rivera, 2020 WL 5047422 (Bankr. S.D. N.Y., August 26, 2020)

Covid and Evictions

 Generally with Covid going on, evictions are largely halted.  However under the Applicability” section of the CDC order:  

 “Nothing in this Order precludes evictions based on a tenant, lessee, or resident: (1) Engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; [10] (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).”

 

Certified Mail and Service of Process

 In April 2020, the United States Postal Service (USPS) modified its signature requirements for certified mail receipts. To reduce health risks, they are temporarily modifying customer signature capture procedures. While maintaining a safe, appropriate distance, employees will request the customers first initial and last name so that the employee can enter the information on the electronic screen or hard copy items such as return receipts, PS Forms 3811 and 3829. https://faq.usps.com/s/article/USPS-Coronavirus-Updates-for-Residential-Customers#mailing_shipping USPS prepared a video outlining the process: https://www.youtube.com/watch?v=2rn0LXFFMao&feature=youtu.be

Please note that the USPS signature requirement modification may impact the sufficiency of service of process to the extent a party relies on Federal Rule of Civil Procedure 4(e)(1) and applicable state law requirements to affect service.

Evictions and Covid

 On September 1 the CDC issued an Agency Order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” suspending certain residential evictions through December 31, 2020. The order does not suspend mortgage foreclosures. To take advantage of the suspension, the tenant must sign a declaration form averring the following:

1. The individual has used best efforts to obtain all available government assistance for rent or housing;
2. The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
4. The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
5. Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting— because the individual has no other available housing options.

Electronic Signatures

 Recent case of interest.   An email is probably not a sufficient electronic signature.  

Parish Transp. LLC v. Jordan Carriers Inc.- Contracts – Enforceability – Electronic Signature – Statute of Frauds – Appellant appealed after the trial court granted summary judgment and found that email communication did not constitute a contract pursuant to Mississippi law and the statute of frauds. Because sending an email does not satisfy the requirements for an electronic signature under Miss. Code Ann. § 75-12-3(8), and because appellee’s email was ambiguous, an enforceable contract did not exist between the parties. Therefore, the trial court’s judgment was affirmed.

Reduction of Financial Obligation

With unemployment skyrocketing and wages being cut, examination of the factors for reducing divorce obligations is particularly relevant. In KROHN v. KROHN, NO. 2018-CA-01066-COA (Decided April 21, 2020) located here (https://courts.ms.gov/Images/Opinions/CO144202.pdf) the Court reversed a Chancellor for not reducing a man’s alimony obligation of $2,000 a month where he lost a job paying $218,000 per year and was able, after a few months, to get a new job paying only $84,000 per year.

The court quoted the following standards for review:

“When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Easterling v. Easterling, 245 So. 3d 548, 551 (¶9) (Miss. Ct. App. 2018) (internal quotation mark omitted). “The change in circumstance must not be anticipated by the parties at the time of the original decree.” Id. (quoting Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002)). “If no unforeseeable and material change has occurred, then a modification of the alimony award is improper.” Id. “Once a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong factors to determine the appropriate amount of alimony.” Id. at (¶10) (internal quotation mark omitted). “When analyzing these factors and ‘deciding whether to modify periodic alimony,’ chancellors should ‘compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.’” Id. (quoting Steiner v. Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001)). “Personal bills cannot be used as a factor to reduce support payments.” Hardin v. Grantham, 201 So. 3d 511, 515 (¶15) (Miss. Ct. App. 2016) (quoting Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995)).

The Armstrong factors that courts use to determine whether a spouse is entitled to alimony include: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be just and equitable in connection with the spousal support. Culumber v. Culumber, 261 So. 3d 1142, 1151 (¶29) (Miss. Ct. App. 2018) (quoting Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993))).

Trucking Claims and Punitive Damages

 Mississippi law is clear that direct negligence claims (of ordinary, not gross negligence) against an employer are subject to dismissal or summary judgment after a stipulation of vicarious liability.  However, as will be discussed below, punitive damages claims can proceed even after the ordinary negligence claims are dismissed upon a stipulation of vicarious liability. 

 A plaintiff's independent claims for punitive damages against an employer may proceed despite the employer's admission that its employee was acting in the course and scope of employment. Lee v. Harold David Story, Inc., CIVIL ACTION NO. 3:09CV696TSL-MTP at 8-9 (S.D. Miss. 2011) ; Dinger v. Am. Zurich Ins Co., 2014 WL 580889 at 3 (N.D. Miss. 2014). Evidence pertaining to a trucking companies’ independent gross negligence is not superfluous or redundant, as there is no means for a plaintiff to obtain punitive damages against the employer solely through claims against the employee.  Roberts v. Ecuanic Express, Inc., CIVIL ACTION No. 2:12 -CV-84-KS- MTP, at 3-5 (N.D. Miss. 2012).  Mississippi courts have conducted punitive damages analysis regarding negligent maintenance/retention/hiring on the part of a trucking company despite holding that admission of vicarious liability foreclosed direct negligence claims. Gaddis v. Hegler, 2011 U.S. Dist. LEXIS 59027 at 10-13 (S.D. Miss. 2011).  If the driver in a trucking case is found negligent, the trucking company can be liable for punitive damages on the independent or directly liability claims.  Riggio v. Pruneda, Cause No. 1:18CV218-LG-RHW at 12-13 (S.D. Miss. 2019). 

If derivative liability is established, "other avenues—like punitive damages claims—will provide a route for recovery in the event an employer's culpability exceeds that of its employee's imputed negligence." Dinger v. Am. Zurich Ins Co., at 3 (N.D. Miss. 2014) quoting Wright v. Watkins & Shepard Trucking, Inc., 972 F. Supp. 2d 1218, 1220 (D. Nev. 2013).  Courts have noted that allowing trucking companies to immunize themselves from liability by stipulating to vicarious liability, “overlooks the irreducible proposition that the doctrine of vicarious liability and the tort of negligent hiring and supervision address different conduct.”  Id. at 3.  Further, secondary sources in Mississippi do not address the exact scenario when an employer admits vicarious liability for the employee's actions, but state that "[a]n employer can always be held directly liable for his own negligence in hiring, retaining, or supervising, regardless of whether an employee or independent contractor is involved, since the employer is being held liable for his own negligence and not vicariously liable for the negligence of another." Id. quoting Mississippi Law of Torts § 7:23 (2d ed.).

 The above referenced cases illustrate that Mississippi courts have time and again allowed Plaintiffs to proceed with their punitive damages claims regarding retention/maintenance after the direct ordinary negligence claims are dismissed (due to a stipulation of vicarious liability).  This is because without the punitive damages claims, Plaintiffs would not be able to hold a trucking company liable for negligence in hiring and retaining a dangerous driver or putting a dangerous vehicle on the road.  Should the evidence rise to the level of gross negligence in hiring and maintenance, the law allows for damages that exceed the ordinary damages attributable to the driver’s negligence.

 

Forgotten items in Divorce

Below is a list of several often forgotten items in divorce proceedings.    

• garage door openers
• security gate remote controls
• extra keys to car and house
• security codes
• hotel, credit card and airline points
• utility and other deposits
• tax and insurance escrows
• car license plate credits
• overdrafts on joint checking accounts
• dates to carry through insurance
• attorney’s fees paid with joint funds
• Attorney’s fees trust fund balances
• Income tax refunds

Tennessee Wrongful Death and Creditor Claims

The proceeds of a wrongful death action go directly to the spouse and the other statutory beneficiaries, Kline, 69 S.W.3d at 202 n.3, and they pass free and clear of any claims of the decedent’s creditors, Anderson v. Anderson, 366 S.W.2d 755, 756 (Tenn. 1963) (citing former Tenn. Code Ann. § 20-609, currently Tenn. Code Ann. § 20-5-108(b)). The proceeds never become part of the decedent’s estate.  Cooper, 313 S.W.2d at 448 (“Neither the claim nor the recovery under this situation here becomes a part of the estate of deceased . . . .”); Lawson v. Lawson, No. M2009-00537-COA-R3-CV, 2010 WL 3853289, at *2 (Tenn. Ct. App. Sept. 28, 2010) (holding that voluntarily tendered insurance proceeds should be tendered in the wrongful death tort action, not in probate, because “the damages assessed in the wrongful death case are not a part of the decedent’s estate that pass by will but, instead, pass by statute to specified individuals”); Holliman v. McGrew, 343 S.W.3d 68, 73 (Tenn. Ct. App. 2009) (“In a wrongful death action, . . . neither the claim nor the recovery becomes a part of the estate of the deceased.”). Even when the wrongful death right of action is prosecuted in the name of the decedent’s personal representative rather than by the spouse or the other next of kin, the personal representative asserts the claim on behalf of the beneficiaries, not on behalf of the decedent or the decedent’s estate.  Johnson, 665 S.W.2d at 718 (“While an action for wrongful death, of course, may be instituted and maintained by an administrator, . . . it has long been settled that the administrator sues as a representative of the next of kin, and not as a representative of the estate or of creditors.”); Cooper, 313 S.W.2d at 448 (“[T]he personal representative as such has no interest in recovery but is only a medium for enforcing the rights of others.”).

Conflict of Law Analysis on Statute of Limitations

A federal court sitting in diversity must apply the choice-of-law rules of the state in which it sits. Williams v. Liberty Mut. Ins. Co., 741 F.3d 617 (5th Cir. Miss. 2014).

In Mississippi, choice-of-law analysis arises only when there is a true conflict between the laws of two states, each having an interest in the litigation. Zurich Am. Ins. Co. v. Goodwin, 920 So. 2d 427, 432 (Miss. 2006).

Once a true conflict is established, Mississippi's choice of law test consists of three steps:

(1)    “[D]etermine whether the laws at issue are substantive or procedural[.]" Ellis, 625 F.3d at 225 (quotation marks omitted); accord Zurich, 920 So. 2d at 433. If they are procedural, the inquiry ends and Mississippi law applies. See Zurich, 920 So. 2d at 433.

(2)    [I]f substantive, classify the laws as either tort, property, or contract; and

(3)    look to the relevant section of the Restatement (Second) of Conflict of Laws." Ellis, 625 F.3d at 225-26.

Williams v. Liberty Mut. Ins. Co., 741 F.3d 617 (5th Cir. Miss. 2014).

Step 1: 

Is the law at issue procedural or substantive?

       

Typically, Mississippi holds a statute of limitation to be procedural in nature. However, Mississippi courts recognize “a well-established exception exists where a particular state's limitations period is considered to be part of its substantive law because the limitations period is "built in" or "in the same enactment" as the statute which creates the right of action.” Morningstar v. General Motors Corp., 847 F. Supp. 489 (S.D. Miss. 1994).

Case Cites:

Mississippi follows the traditional rule that a statute of limitation is deemed "procedural" rather than "substantive." Williams v. Taylor Machinery, Inc., 529 So. 2d 606, 609 (Miss. 1988). However, a well-established exception exists where a particular state's limitations period is considered to be part of its substantive law because the limitations period is "built in" or "in the same enactment" as the statute which creates the right of action. See, e.g., Siroonian v. Textron, Inc., 844 F.2d 289, 292 (5th Cir. 1988) (holding that in a wrongful death action brought in Mississippi court pursuant to diversity jurisdiction and applying Kentucky substantive law, Kentucky's statute of limitations is considered substantive and thus governed the case).

Morningstar v. General Motors Corp., 847 F. Supp. 489 (S.D. Miss. 1994).

“[T]he law of the forum determines whether an issue in the action is substantive or procedural in nature." 1A C.J.S. Actions § 41. In Mississippi, "few laws are classified as procedural" and, for choice of law purposes, the Mississippi Supreme Court has labeled as procedural only rules of evidence and procedure, statutes of limitations, and awards of attorney's fees and interest. See Zurich, 920 So. 2d at 433.

Hartford Underwriters Ins. Co. v. Found. Health Servs., 524 F.3d 588 (5th Cir. Miss. 2008).

Steps 2 and 3:

The laws at issue center around an action based in torts. Mississippi has adopted the “center of gravity” or the “significant relationship” test found in the Restatement (Second) of Conflict of Laws. Under the center of gravity test, the relevant sections of the Restatement (Second) of Conflict of Laws are Sections 145 and 175.

Section 145 speaks to torts generally and states:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

  (a) the place where the injury occurred,

  (b) the place where the conduct causing the injury occurred,

  (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and

  (d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Section 175 specifically applies to wrongful death actions and states:

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Under the center-of-gravity test, the presumption is Mississippi law, including its wrongful-death statute, will apply because the injury occurred here UNLESS another state has a more significant relationship to the occurrence and parties.  

A common argument when the a party does not want the law of the state where the injury occurred to apply is to argue it was purely fortuitous that the incident happened in that state, especially in a case where the decedents were merely driving through the state. However, it appears a party still has to overcome the presumption by showing that it was merely fortuitous and another state has a more substantial relationship.

The “accrual of the action” issue:

In Mississippi, "a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death." Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926 (P12) (Miss. 2006). The wrongful death claim accrues when the claim for the underlying wrongful conduct accrues. May v. Pulmosan Safety Equip. Corp., 948 So. 2d 483 (Miss. Ct. App. 2007).

Under Mississippi law, when a defective product causes a wrongful death, the claim accrues when the underlying products-liability claim accrued. A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested, and the theory that an injury has to happen before a tort is considered complete. Little v. Smith & Nephew, Inc., 2015 U.S. Dist. LEXIS 75666 (N.D. Miss. June 11, 2015). A product liability action accrues when the plaintiff discovers, or by reasonable diligence should have discovered, the injury. Austin v. Bayer Pharms. Corp., 2013 U.S. Dist. LEXIS 137480 (S.D. Miss. Sept. 25, 2013); Miss. Code Ann. § 15-1-49(2).  So, when the injury occurs in Mississippi, such as a MVA, the claim will not have accrued outside of the state.

Additional case cites:

Similarly, the Fifth Circuit Court of Appeals has examined this issue and explained that Mississippi's choice of law rule in conflicts of law cases provides that the law of the place where the injury occurred controls unless some other state has a more significant relationship to the accident and the parties. To overcome the presumption that the law of the situs applies, [Plaintiff] must show that some other jurisdiction has a more significant relationship to the occurrence and the parties. The significance of the relationship is based on contacts. In addition to the place where the injury occurred, contacts to be considered include the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation, and place of business of the parties, and the place where the relationship, if any, between the parties is centered. Walls v. General Motors, Inc., 906 F.2d 143, 145-46 (5th Cir. 1990) (citing Boardman v. United Services Auto. Asso., 470 So. 2d 1024 (Miss. 1985); Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968)). Here, there is no dispute that the accident occurred in Louisiana. Moreover, the alleged acts or omissions on the part of the Defendants would have occurred or accrued, at least in part, in Louisiana. Finally, no other state appears to have more significant contacts with this action as all parties reside in different states. Thus, the contacts held by other states, including Mississippi, appear to be a wash and are no greater than Louisiana's contact as the location of the accident. Plaintiff argues however that where the location of the accident was merely fortuitous, it will not weigh in favor of applying the law of that state. While this statement is true, it is incomplete. Whether the location is fortuitous depends on other facts. Plaintiff's authority for this argument illustrates the point. In Vick v. Cochran, 316 So. 2d 242 (Miss. 1975), the Mississippi Supreme Court found that the location of an accident in Mississippi was fortuitous and therefore applied the law of Alabama. The court noted, "Not only do all of the parties, plaintiffs and defendant, and nine of the ten witnesses, reside at Hamilton, Alabama, but their status, and their relationships each with the other, were established under agreements, express or implied, arrived at in the State of Alabama." Id. at 246. Here, there were no pre-existing relationships and the parties all resided in different states. As such, the choice of law analysis favors Louisiana.

White v. Universal Transp., Inc., 2006 U.S. Dist. LEXIS 72193 (S.D. Miss. Oct. 2, 2006).

Kentucky was more than just the place of the injury. The Fort Campbell airfield on the Kentucky portion of the base was not only the location from which the fatal flight originated and was to have returned, it was also the military station to which both the helicopter and Sheryl Siroonian were assigned. See Price, 784 F.2d at 605. The accident occurred because Sheryl Siroonian, flying low due to reduced visibility, struck a power line rooted in Kentucky soil.

While other states have some contact with the occurrence and the parties to this action, none have a more significant relationship than Kentucky. Texas is the state in which the principal place of business of Bell is located, as well as the state where the helicopter involved in the accident was manufactured and delivered to the Army. Tennessee was the decedent's temporary residence and the location of one of the interim stops on the fatal flight. Mississippi, Siroonian's choice for applicable law, bears no relationship to either the accident or the parties to this case, other than an attenuated tie to Bell. In an effort to support his contention that Mississippi law applies, Siroonian points out that there are numerous Bell helicopters used in Mississippi, and that Textron, the parent company, has two plants in Mississippi. Neither of these plants, however, manufacture helicopters or helicopter parts. While Siroonian's argument might be relevant to a jurisdictional question, it bears little weight in the choice of law determination before us.

Kentucky was clearly both the situs of the accident and the center of the relationship of the decedent and the Bell helicopter. See id. at 604; § 145 of the Restatement, supra. Contrary to Siroonian's contention, it was not merely fortuitous that Sheryl Siroonian and the allegedly defective helicopter happened to be involved in a crash in Kentucky. While some contacts exist with other states, no other state besides Kentucky has "a more significant relationship to the occurrence and the parties."

Siroonian v. Textron, Inc., 844 F.2d 289 (5th Cir. Miss. 1988).

With regard to the last step, Mississippi resolves conflict-of-laws questions using the "significant relationship" test found in the Restatement (Second) of Conflict of Laws (1971). Id. at 226;

"A court that applies the 'center of gravity' approach must determine 'which state has the most substantial contacts with the parties and the subject matter of the action.'" Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 230-31 (5th Cir.) (quoting Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985)), reh'g in part on other ground granted, 423 F.3d 522 (5th Cir. 2005).

In this diversity action, the court is bound to apply the choice-of-law rules of the forum state, Mississippi, Klaxon v. Stentor Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), and under Mississippi law, the starting point of the choice-of-law inquiry is Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968), the case in which the Mississippi Supreme Court adopted the "center of gravity" or "most substantial contacts" conflicts-of-law test. Under the center of gravity test, section 175 of the Restatement (Second) of Conflict of Laws is the primary rule for wrongful death actions. See Siroonian v. Textron, Inc., 844 F.2d 289, 291 (5th Cir. 1988). That section provides: In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied (emphasis supplied).In determining the significance of the relationship or the "center of gravity," section 145 of the Restatement (Second) sets forth the following guidelines: Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to the issue include:

(a) the place where the injury occurred;

(b) the place where the conduct causing the injury occurred;

(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative [**5] importance with respect to the particular issue.

Chapman v. Thrasher Trucking Co., 729 F. Supp. 510 (S.D. Miss. 1990)

Attorney's Fees for Homeowner's Associations

“Parties may by contract provide that in event of dispute, the losing party must pay the winner attorney’s fees.” Journeay v. Berry, 953 So. 2d 1145, 1162 (¶64) (Miss. Ct. App. 2007) (quoting Grisham v. Hinton, 490 So. 2d 1201, 1206 (Miss. 1986)). “[V]alid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees.” Berlin v. Livingston Prop. Owners Ass’n Inc., 232 So. 3d 148, 159 (¶33) (Miss. Ct. App. 2017) (citing Journeay, 953 So. 2d at 1162-63 (¶¶63-66)). "

Getting More Than you Ask for

Mississippi Rule of Civil Procedure 54(d) states in pertinent part that a “final judgment shall not be entered for a monetary amount greater than that demanded in the pleadings or amended pleadings.” Miss. R. Civ. P. 54(d).

Chiropractors in Tennessee

Chiropractors are competent to testify as to injuries to the spine and to express an opinion as to the cause and effects of those injuries. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 318 (Tenn. 1987);  Ward v. N.A. Rayon Corp., 366 S.W.2d 134, 139 (Tenn. 1962).; Smith v. Hale, 528 S.W.2d 543, 545 (Tenn. 1975).

Covid and Contracts

A force majeure clause reduced a restaurant debtor’s rent by 75% after the governor’s executive order prohibited on-premises consumption of food and beverage, according to Bankruptcy Judge Donald R. Cassling of Chicago.

The debtor filed a chapter 11 petition on February 24 and didn’t pay rent due on the first of March, April, May, and June. The Illinois governor issued an executive order on March 16 effectively precluding sit-down dining in restaurants. However, the executive order explicitly encouraged restaurants to continue take-out service.

The landlord filed a motion to compel payment of rent under Section 365(d)(3). Alternatively, the landlord sought a modification of the automatic stay under Section 362(d)(1).

Designed to give landlords more than an administrative claim, Section 365(d)(3) requires the debtor to “timely perform all the obligations . . . from and after the order for relief under any unexpired lease of nonresidential real property until such lease is assumed or rejected, notwithstanding § 503(b)(1) of this title.”

In defense to the motion, the debtor raised the force majeure clause in the lease. It excuses the debtor from “performing its obligations . . . in the event, but only so long as the performance of any of its obligations are prevented or . . . hindered by. . . laws, governmental action or inaction, orders of government . . . .”

In his June 3 opinion, Judge Cassling ruled that the force majeure clause “unambiguously” applied to rent due after the issuance of the executive order. In his judgment, the executive order was “unquestionably” both a “governmental action” and an “order.”

Judge Cassling concluded that the executive order “partially” excused the debtor from paying rent for April, May and June. To determine how much rent the debtor must pay, the judge noted how the governor did not prohibit carry-out service.

To decide how much the debtor should pay, Judge Cassling relied on the debtor’s estimate that 25% of the square footage in the restaurant was for the kitchen and carry-out service. He therefore gave the debtor a June 16 deadline for paying all of March rent and 25% of rent for April, May and June. He also obliged the debtor to pay 25% of common-area charges and real estate taxes for those months.

Judge Cassling said that failure to pay reduced rent by the deadline would represent “cause” for lifting the automatic stay.

Opinion Link

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Case Details

Case Citation

In re Hitz Restaurant Group, 20-05012 (Bankr. N.D. Ill. June 3, 2020)

Case Name

In re Hitz Restaurant Group

Party Testifying to Value of Property

Random Caselaw of Interest:

A party may testify as to the value of his or her own property. Community Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 774 (¶ 23) (Miss.2004) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 101 (Miss.1996)).

Doctrine of Contribution

On Tuesday, the Mississippi Court of Appeals decided Remy Jonathan Bozant v. Hang M. Nguyen located here.  One of the issues was when does a party have to reimburse the other party.  The Court made the following analysis which is interesting on the issue.

"¶12. In Celotex Corp. v. Campbell Roofing & Metal Works Inc, 352 So. 2d 1316, 1318

(Miss. 1977), the supreme court held:

The doctrine of contribution requires that persons having a common liability, such as the joint and several judgment against Campbell and Celotex, bear their individual share of the burden imposed and not have any one of them carry the full load.  The general rule of common law is that the one who is compelled to satisfy, or pay more than his just share of such common burden or obligation, is entitled to contribution from the others to obtain from them payment of their respective shares.

(Emphasis added).  The chancery court held Remy in contempt for his failure to pay to the

IRS his 25% of the total tax liability for 2013 and 2014 and ordered him to pay his 25%

amount owed directly to Kat, despite the fact that she had not yet paid that portion to the IRS.

Although Kat is making payments to the IRS to satisfy the couple’s previous tax liabilities

for 2013 and 2014, she has not yet carried “the full load” of the obligation.  To order Remy

to pay Kat his entire 25% portion of tax debt for 2013 and 2014 would hold Remy in

contempt for nonpayment for a debt that Kat has not paid.  Kat may make such payments on

his behalf at some point in the future, but that had not yet happened at the time of the

contempt order.  A person cannot be held in contempt by a court for some future violation

of a court order that has not yet happened, regardless of the likelihood of such future

violation.  “The primary purpose of a civil-contempt order is to enforce compliance with a

court order.” Chism v. Chism, 285 So. 3d 656, 666 (¶35) (Miss. Ct. App. 2019) (citing

Stallings v. Allen, 201 So. 3d 500, 504 (¶14) (Miss. Ct. App. 2016)), cert. denied, 284 So.

3d 753 (Miss. 2019).  If Remy paid the IRS his 25% share during the time Kat was paying

the portion she owed, then he would not owe Kat anything, and Kat would have paid nothing

extra than what she owed.  If, on the other hand, Remy did not pay the debt he owed to the

IRS and Kat had paid her portion and then his portion, then Kat would certainly have a right

to seek payment for the 25% he failed to pay and that she was forced to pay.  While it is true

Kat entered into an agreement with the IRS to pay the entire debt, she is responsible for 75%

of that debt and was still paying her share of the debt when she filed her contempt petition.

The chancery court’s contempt order anticipated Remy’s failure to comply with the PSA as

to the years 2013 and 2014, and the court may very well be correct at some point in the

future.  But until such time as Kat has been required to actually pay the portion of the debt

Remy owes, she cannot seek contribution.  When she has been forced to pay Remy’s debt or

to “carry the full load” of the couple’s joint debt, then she can seek contempt for Remy’s

failure to pay.  We reverse and remand that part of the judgment holding Remy in contempt

for his 25% portion of the 2013 and 2014 taxes because Kat had not yet paid that amount to

the IRS at the time of the contempt order.  Remy cannot be in violation of the PSA for his

failure to pay when he had not yet failed to pay."

The general idea is that you cannot be in contempt for not paying an item that is not even due yet.

Tennessee Court Extensions

The Tennessee Supreme Court today issued an Order that extends the judicial state of emergency and eases restrictions imposed by previous court orders. These changes include allowing jury trials to begin after July 3 with strict protocols; allows eviction cases to be heard beginning June 1; ends deadline extensions; and allows local judicial districts to continue operating under their approved plans for expanded in-person proceedings. The Order continues to encourage remote proceedings via video or audio conference whenever possible.  

Today’s Order allows jury trials to begin after July 3, 2020, if strict social distancing and capacity protocols can be met and CDC guidelines are followed. The Order also provides for six-person juries in civil cases unless a twelve-person jury is specifically requested by a party.  

Deadlines in court rules, statutes, and administrative rules that were previously extended until May 31 are extended only until June 5. After this date, the Supreme Court does not anticipate any further extension of deadlines. “The point of extending deadlines was to give judges, attorneys, and litigants time to adjust to this new normal and weather this storm a bit,” Chief Justice Bivins said. “But, extensions cannot go on indefinitely. Judges, of course, can extend deadlines on an individual basis when permissible.”

The Order also lifts the broad restrictions on evictions. As of June 1, eviction cases may be heard if the landlord states under penalty of perjury that the action is not subject to the federal Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

The Supreme Court issued an order on April 24 that allowed judicial districts to expand in-person proceedings if the Supreme Court approved a plan submitted by the district addressing such issues as social distancing, limiting access to the courtroom, and other strategies designed to limit the spread of Covid-19 as much as possible. The majority of judicial districts are now operating under those approved plans, which are available on the TNCourts.gov website. Judicial districts that did not submit a plan are continuing to operate under the parameters set forth in the March 25 Order. 

Covid and Discovery

In Ogilvie v. Thrifty Payless, the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”

Citation:  Case No. C18-0718JLR, 2020 U.S. Dist. LEXIS 83620, at *6 (W.D. Wash. May 12, 2020).

Tennessee Self-Defense Case

The Tennessee Supreme Court has clarified that a trial court is required to charge a jury on self-defense only when the issue has been fairly raised by the proof at trial.

The defendant, Antonio Benson, was charged with first-degree premeditated murder.  The evidence presented at trial suggested that he and the victim became involved in a physical altercation, during which the unarmed victim punched the defendant and caused his nose to bleed.  In response, the defendant shot the victim five times.     At trial, the defendant argued that the jury should be allowed to consider whether he was lawfully defending himself.  The trial court found that nothing in the proof at trial raised the issue of whether the defendant lawfully used deadly force in defending himself against a punch in the nose by a petite, unarmed woman. The trial court, therefore, refused to charge the jury on self-defense.  The defendant was convicted of first-degree murder and sentenced to life in prison.

The Court of Criminal Appeals reversed, concluding that the trial court erred in not allowing the jury to decide whether the defendant lawfully defended himself with the use of deadly force.  The Supreme Court granted the State’s application for permission to appeal to consider the gatekeeping function of a trial court when assessing whether self-defense has been fairly raised by the proof and to further evaluate the quantum of proof necessary to require a trial court to charge a jury on self-defense.

In a unanimous opinion, the Supreme Court held that the trial court, not the jury, must make the threshold determination of whether self-defense has been fairly raised by the proof.  The Court determined that the trial court properly exercised its gatekeeping function in this case and was not required to charge the jury on the issue of self-defense because the evidence, when viewed in the light most favorable to the defendant including all reasonable inferences that could be drawn, did not fairly raise an issue of whether the defendant was lawfully defending himself when he used deadly force.  The Supreme Court reversed the holding of the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read the unanimous opinion in State v. Antonio Benson, authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.

Intimately Connected Doctrine

Under the intimately connected doctrine, liability is not generally imposed on an owner who contracts with another to perform work, and the contractor or their employee suffers injuries that “arose out of or were intimately connected with the work.”  Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989) (citing Hathorn v. Hailey, 487 So. 2d 1342, 1344-45 (Miss. 1986)); see also Coho Res., Inc. v. Chapman, 913 So. 2d 899, 905-06 (Miss. 2005).  The lone exception applies to arrangements where “the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury.”  Id. at 186 (citing Fruchter v. Lynch Oil Co., 522 So. 2d 195, 199-200 (Miss. 1988)); see also Chapman, 913 So. 2d at 906.

Mortgage and Covid-19

The update on the link here summarizes the credit reporting, mortgage forbearance, and the temporary foreclosure and eviction moratorium sections of the CARES Act, which became effective on March 27, 2020, and lists the types of mortgage loans covered by the Act.

The Update also includes general information applicable to all homeowners, links to the Fannie Mae and Freddie Mac loan look-up cites, and a link to a very basic template Request for Information to obtain the identity of the owner of a loan. 

Additional information on other COVID-19 related issues is available on NFHA’s COVID-19 webpage.

Unemployment in Mississippi and Covid-19

UPDATE on MDES and UNEMPLOYMENT Filing

If you are a Mississippi resident/employee/self-employed individual and have been laid off or suffered work loss due to COVID-19, you qualify for unemployment benefits. In addition to the MS unemployment benefit of $235 (max amount), the Federal Government is adding $600 to the benefit amount for a period of 4 months.



Based on the Federal law passed Friday morning and Governor Reeves Memorandum of Understanding executed last week, unemployment benefits will see an expansion in Mississippi of covered individuals (to include many self- employed, part time employees and workers who do not have enough credits to qualify). The guidance for filing is still the same, but alternative options have been added with a PDF fillable form (link at the bottom of this post). Call centers will be expanded from 7am to 10pm (7 days a week) beginning on Monday to help process claims and issues.

Much of the changes will be directed by the United States Department of Labor. The Department of Labor will give guidance to our Department of Employment Security in the coming days on eligibility and computation of benefits. The key now is that if you qualify for benefits, that you file and that the benefits for eligible claims will be back dated to your date of separation even if the application process is delayed.



Ways to File your Unemployment Claim:

·      File online during off peak hours (10pm-5am) Available 7 days a week, 24 hours a day mdes.ms.gov

·     ·Call Center # 888-844-3577 (7am-10pm), 7 days a week (beginning Monday 3/30/20)

·     ·Downloadable Form: https://mdes.ms.gov/media/178819/ui-501_form_web.pdf Once you have completed the form, please email it to: UIClaims@mdes.ms.gov or to your local WIN Job Center

·      DeSoto County Job Center DeSotocountyjobcenter@mdes.ms.gov 662-280-6218

 

Families First Corona Virus Response Act Summary

Here is a summary of the Families First Corona Virus Response Act.

Constitutionality of Tennessee Damages Caps

"In an opinion released [02/26/2020], the Tennessee Supreme Court answered three certified questions from the United States District Court for the Middle District of Tennessee, holding that Tennessee’s statutory cap on noneconomic damages in civil cases does not violate the Tennessee Constitution. This case arose from injuries sustained by the plaintiff, Jodi McClay, in a store at the Nashville International Airport in 2016. Ms. McClay filed a personal injury lawsuit against the defendant, Airport Management Services, LLC, in the United States District Court for the Middle District of Tennessee. Following a trial, a jury awarded damages to Ms. McClay, including $930,000 for noneconomic damages. Her noneconomic damages included pain and suffering, permanent injury, and loss of enjoyment of life.  After the District Court entered judgment, the defendant sought to apply Tennessee’s statutory cap on noneconomic damages, which limits noneconomic damages to $750,000 in most civil liability actions. Ms. McClay argued that the statutory cap is unconstitutional, and the District Court then certified three questions of law regarding constitutionality under the Tennessee Constitution to the Tennessee Supreme Court for consideration. The Tennessee Supreme Court accepted certification of the questions and heard oral argument in the matter. In the majority opinion, the Supreme Court first held that the statutory cap on noneconomic damages does not violate a plaintiff’s right to a trial by jury. The Court concluded that the General Assembly’s adoption of the cap on noneconomic damages was consistent with prior case law that had upheld statutes limiting remedies available at common law and statutes abolishing common law causes of action. Moreover, the Court reasoned that a jury retains the opportunity to make a factual determination as to the amount of noneconomic damages. Only after that determination does the trial court then limit the award as a matter of law based on the statutory cap. Second, the Court rejected a challenge to the cap under the separation of powers provision of the Tennessee Constitution. The Court concluded that the cap is a substantive change in the law that rests within the authority of the legislature and does not interfere with the courts’ authority to apply and interpret the law. Finally, the Court held that the statutory cap does not violate the equal protection provision of the Tennessee Constitution. Specifically, the Court concluded that Ms. McClay’s claim that the statute had a disparate impact on women was not a cognizable claim under the equal protection provisions of the Tennessee Constitution without proof of a discriminatory purpose. Accordingly, the majority of the Court held that the statutory cap on noneconomic damages was constitutional under the Tennessee Constitution. Justice Holly Kirby joined in the majority opinion and also filed a separate opinion further explaining her reasoning for holding that the cap does not violate the constitutional right to a jury trial. Justice Kirby said that the State’s founders included a right to a jury trial in the constitution to address whether the judge or the jury will decide issues to be resolved in a court case. It was not intended to prohibit substantive legislative enactments. Instead, she said, the constitutional provision historically was intended to function as a restraint on judicial power. Justice Cornelia A. Clark filed a dissenting opinion. Justice Clark concluded that the statutory cap violates the right to jury trial provision of the Tennessee Constitution, which guarantees that the right of trial by jury as it existed at common law “shall remain inviolate.” Justice Clark opined that this constitutional provision guarantees litigants the right to have a jury determine both the type and amount of damages. Justice Clark reasoned that the statutory cap usurps the jury’s constitutionally protected function and renders the jury’s factual findings meaningless. Justice Sharon G. Lee filed a separate dissenting opinion stating that the cap renders a jury's verdict for noneconomic damages meaningless when the verdict exceeds the cap. In addition, she noted that the majority's analysis did not follow previous case law which emphasized that injured parties have a right under the Tennessee Constitution for a jury to decide both the type and the amount of damages awarded at trial. The cap on noneconomic damages takes away that constitutional right and essentially reduces the jury's role to a mere procedural formality. Justice Lee's dissenting opinion explains that Tennessee does not have a problem in Tennessee with "runaway juries" and, by using real-life examples, points out that the cap affects only the most seriously injured victims." Click on the bold names To read the Supreme Court’s majority opinion in Jodi McClay v. Airport Management Services, LLC authored by Chief Justice Jeff Bivins, as well as the concurring opinion authored by Justice Holly Kirby and the dissenting opinions authored by Justices Cornelia A. Clark and Sharon G. Lee.