Releasing One Tortfeasor

What happens when you settle with one tortfeasor, but not another?  In Medley v. Webb, 288 So. 2d 846, 848-49 (Miss. 1974), the Mississippi Supreme Court found that there is “no doubt that a plaintiff may sue another joint tortfeasor” after releasing the other alleged tortfeasor from liability. Further, the Court has delineated the difference between being jointly liable and being a joint tortfeasor. See J&J Timber Co. v. Broome, 932 So. 2d 1, 7 (Miss. 2006) (“Joint tortfeasor claims arise where the separate wrongful conduct of two or more individuals combine to cause an injury, and each because his wrongful conduct bears some responsibility for the injury.” (quoting Richardson v. APAC-Mississippi, Inc., 631 So. 2d 143, 151 n.7 (Miss. 1994))).  The key distinction is whether the claimant is settling with one joint tortfeasor and then pursuing a remedy against another, independently liable, tortfeasor. Id.

Rule 60 - Fraud and Mistake

Below is an excerpt from a brief I am working on dealing with fraud and mistake under Rule 60 of the Mississippi Rules of Civil Procedure.

"Rule 60(b)(1) deals with relief from judgment obtained by fraud, misrepresentation, or other misconduct of the adverse party." Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984) (emphasis added).  A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough. King v. King, 556 So.2d 716, 722 (Miss. 1990).  A party seeking to set aside an order based on fraud or mistake must prove four things: (1) that the facts constituting the fraud... [or] mistake ... must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree; and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.  Rogers v. Rogers, 94 So.3d 1258, 1264 (¶ 19) (Miss. Ct. App. 2012) (quoting Manning v. Tanner, 594 So.2d 1164, 1167 363*363 (Miss. 1992)); accord Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 8) (Miss. Ct. App. 2000) (quoting Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158, 161 (1955). 

Death of a Fetus: Mississippi vs. Tennessee

The Mississippi Supreme Court has held that a mother is entitled to bring a wrongful-death claim for the death of a nonviable fetus. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104 (Miss. 2003).  Prior to Tucker, Mississippi’s Wrongful Death Act created a cause of action for “the wrongful death of an unborn child where the fetus was viable at the time of death.” Id. at 108 (citing Sweeney v. Preston, 642 So. 2d 332 (Miss. 1994); Terrell v. Rankin, 511 So. 2d 126 (Miss. 1987); Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954)).Tennessee wrongful-death claims allow recovery only for unborn children deemed “viable” at the time of death. See Tenn. Code § 20-5-106(d).

Frivolous Motions

When is a motion frivolous in Mississippi?   "A pleading or motion is frivolous within the meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success." Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 195 (Miss. 1995). A claim that is merely "weak" or "light-headed" does not meet this definition of frivolous. Id.

Winding Up Affairs of a Company

Can a dissolve company sign a deed or other items to wrap up their affairs if they are dissolved.  The answer in Mississippi seems to be yes.  Mississippi Code 79-29-809 (2) provides that for limited liability companies, they can:  "(2) Upon dissolution of a limited liability company, the persons winding-up the limited liability company's affairs may, in the name of, and for and on behalf of, the limited liability company, prosecute and defend suits, whether civil, criminal or administrative, gradually settle and close the limited liability company's business, dispose of and convey the limited liability company's property, discharge or make reasonable provision for the limited liability company's liabilities, and distribute to the members any remaining assets of the limited liability company, all without affecting the liability of members and managers and without imposing liability on a liquidating trustee."

Conservatorship to Probate

Most attorney's are not aware that a conservatorship is to be converted to a probate once the ward dies if there is no will.  Mississippi Code Annotated 91-7-68 provides that:

"Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent's estate in the manner required by law. Such fiduciary's bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting."

Habitual Drunkenness

Mississippi still has the divorce ground of habitual drunkenness.  “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).   In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.  Question I have is what proof is needed that the drinking continues?  What happens if they just don't drink at trial and then start drinking there?