Tag: Affirmative Defenses

Mississippi Court of Appeals Decisions of March 26, 2024

The Mississippi Court of Appeals handed down three opinions on Tuesday. The case that stood out to me was Murphy v. William Carey University not because of the result but because of how the Court of Appeals discussed the Horton doctrine. The special concurrence pulled no punches.

Frazier v. State, 2022-KA-00896-COA (Criminal – Felony)
Affirming conviction of first-degree murder with firearm enhancement, holding that the circuit court did not err in denying a heat-of-passion manslaughter instruction and did not abuse its discretion in refusing to allow the defendant to read proffered testimony from the first trial that ended with a mistrial on the first-degree murder charge.
(10-0)

Murphy v. William Carey University, 2022-CA-00379-COA (Civil – Med Mal)
Reversing the trial court’s grant of summary judgment in a med mal case based on lack of pre-suit notice and the statute of limitations, holding that the defendant waived those defenses by failing to pursue them while actively participating in litigation.
(7-2: Lawrence specially concurred joined by McDonald, Smith, and Emfinger, and joined in part by Wilson and Westbrooks; Greenlee dissented, joined by Carlton)

NOTE – I find the discussion of the Horton doctrine fascinating. The majority opinion and the special concurrence threw some shade at the development of the Horton doctrine and how it has been applied. The majority opinion included this statement and footnote:


The special concurrence upped the ante and sharply criticized the state of the Horton doctrine. I read the special concurrence (carrying four votes and two “in part” votes) as a challenge to the Mississippi Supreme Court to clean up the Horton doctrine:

The special concurrence concluded with this:

I am not sure this is the best “test case” for the Horton doctrine based on the facts, but I will be watching for a cert petition.

The City of Pascagoula, Mississippi v. Cumbest, 2022-CA-00745-COA (Civil – State Boards & Agencies)
Reversing on direct appeal and reversing on cross-appeal in a case over whether private property was “menace” under Miss. Code Ann. section 21-19-11, holding that the circuit court erred in reversing the city council’s determination that the property was a “menace” and finding no abuse of discretion in the circuit court’s denial of the property owner’s decision denying the owner’s motion to compel production of documents.
(5-4: Westbrooks concurred in part and dissented in part without separate written opinion; McDonald concurred in part and dissented in part, joined by Wilson, Westbrooks, and McCarty; Lawrence did not participate)

NOTE – The concurrence took issue with the City making the “menace” determination based on the condition of the property before the hearing and not at the time of the hearing.

Other Orders

Friley v. State, 2021-KA-00791-COA (denying rehearing)

Smith v. Ford, 2022-CA-00255-COA (denying rehearing)

Burns v. BancorpSouth Bank, 2022-CA-00404-COA (denying rehearing)

Moore v. Mississippi Farm Bureau Casualty Insurance Company, 2022-CA-00555-COA (denying rehearing)

Edwards v. State, 2022-KA-00719-COA (recalling mandate and permitting pro se motion for rehearing to proceed)

Scales v. State, 2022-KA-00856-COA (denying rehearing)

Thompson v. Thompson, 2022-CA-01014-COA (dismissing motion for rehearing as untimely)

Hand Down Page

Mississippi Supreme Court Decisions of October 27, 2022

Today was a lean day from the Mississippi Supreme Court. No opinions were handed down, but four orders were listed on the hand-down page. I have reposted the summary of one decision from last week about pleading affirmative defenses because I do not think the importance of heeding that decision can be overstated.

Other Orders

Booker v. State, 2018-CT-00664-SCT (denying cert in PCR case)

Porras v. State, 2021-CT-00052-SCT (dismissing cert petition in PCR case as untimely filed)

Carter v. Total Foot Care, 2021-CT-00610-SCT (denying cert where the COA affirmed summary judgment that was based RFAs deemed admitted because the plaintiff failed to respond to them)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2022-AD-00001-SCT (directing the disbursement of $156,119.26 in civil legal assistance funds among the MS Volunteer Lawyers Project, North MS Rural Legal Services, and MS Center for Legal Services)

Reposting from last week to save a life:

Pruitt v. Sargent, 2021-CA-00511-SCT (Civil – Personal injury)
Reversing the circuit court’s decision granting the defendant’s motion to dismiss based on the running of the statute of limitations, holding that the defendants waived the statute of limitations defense by failing to adequately plead it in their answer.
(6-2-0: Justice Coleman concurred in part and in the result, joined by Justice Griffis; Justice Beam concurred in the result only without separate written opinion)

PRACTICE POINT – The Supreme Court laid down some black-letter law today on pleading the statute of limitations as an affirmative defense and its reasoning probably applies to other affirmative defenses. The Court took a look at the defenses that were pleaded and found they fell short of the standard:

Then, the Court said flatly that et seq. didn’t cut it:

In case the message has not been received, consider:

Be careful out there.

Summaries of the Mississippi Court of Appeals opinions of April 12, 2022

The Mississippi Court of Appeals handed down two opinions today, one criminal and one civil. The criminal opinion affirmed a conviction, finding no merit on a litany of issues. The civil opinion affirmed summary judgment on a breach of contract claim based on a personal guaranty included in a credit application with a business’s supplier.

Barnes v. State, 2021-KA-00404-COA (Criminal – Felony/Hearsay/Jury Instructions/Rule 404(b))
Affirming conviction of two counts of fondling, holding (1) no error in jury instruction re: sufficiency of unsubstantiated/uncorroborated, but not contradicted/discredited, testimony of victim of a sex crime to support guilty verdict; (2) no error in allowing testimony by investigator “based on professional experience” because not expert opinion; (3) error in allowing hearsay was harmless because the same information was also introduced through admissible source; (4) Rule 404(b) objection re: other students who reported misconduct waived because not made contemporaneously and because it showed why the school initiated an investigation; (5) no error in admitting recorded conversations between victim and defendant where intelligible recording was not produced until the first day of trial (at least partially because defense did not request more time to prepare); (6) no error in admitting purported statement of the defendant over discovery violation objection because the statement had produced in discovery and defense counsel admitted being familiar with it; (7) no merit to ineffective assistance of counsel claim; and (8) the evidence was sufficient to support the convictions. The court of appeals invoked the plain error doctrine to remand the case for correction of a scrivener’s error in the sentencing order.
(Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge McCarty concurred in result only without separate written opinion.)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (Civil – Contract/Personal Guaranty/Affirmative Defenses)
Affirming the circuit court’s grant of summary judgment in favor of the plaintiff/supplier, holding that there was no error in finding that the owners of a company had personally bound themselves to pay their company’s debt to the plaintiff/supplier per the terms of a credit application that contained a personal guaranty. The court of appeals noted that the defendants did not attach affidavits in response to the summary judgment motion that addressed the guaranty:

The court of appeals then held that the plaintiff/supplier–a secured creditor– had no duty to mitigate before filing a lawsuit for damages and that the defendant that asserted fraud in response to the motion for summary judgment had waived that affirmative defense by failing to plead it in his answer to the complaint.
(All judges concurred.)

Other Orders

Hartzler v. Bosarge, 2019-CT-01606 (granting motion to dismiss appeal as interlocutory)

Doe v. Doe, 2020-CA-00853-COA (denying motion for rehearing)

Braswell v. Braswell, 2020-CA-01090-COA (denying motion for rehearing)

Nunn v. State, 2021-TS-01371-COA (granting pro se motion for out-of-time appeal and granting motion to withdraw and substitute counsel)

Hand Down List