Tag: Contract

Summaries of the Mississippi Court of Appeals opinions of March 8, 2022

There are six opinions from the Mississippi Court of Appeals today on a wide range of topics, including a holding that a defendant’s failure to respond to a complaint filed on March 6, 2020, until thirty-one days after service of process constituted “excusable neglect” in light of the COVID shutdowns at the time.

Hamer v. State, 2019-KA-01633-COA (Criminal – Felony/Evidence/Rule 403/Golden Rule)
Affirming conviction on two counts of capital murder and armed robbery and sentence to life in prison without parole, holding primarily that (1) wiretapped phone calls between the convicted and his father, whose drug trafficking enterprise the convicted had worked for, were admissible to show motive and tell “the complete story” to the jury, (2) the evidence was sufficient to establish nexus between the killing and the underlying felony to constitute capital murder, (3) and there was no impermissible Golden Rule argument at closing.
(Judge Westbrooks wrote an opinion concurring in part and dissenting in part, joined by Judge McDonald.)

Crockett v. State, 2021-CP-00022-COA (Civil – PCR/Time Bar)
Affirming circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the claim of an involuntary guilty plea was both time-barred and meritless.
(All judges concurred, Chief Judge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)

Erves v. Hosemann, 2020-CA-00467-COA (Civil – Property/Daubert)
Affirming chancellor’s decision denying relief in an action for an injunction to stop the use of a driveway and for monetary damages, holding that the petitioners failed to establish legal title to the subject property and specifically holding that the defendants’ expert witnesses were qualified and that the chancellor’s ruling was not against the overwhelming weight of the evidence.

Practice Point: Appellants got dinged on their Daubert challenge for arguing reliability on appeal when the only issue raised at the trial court was the experts’ qualifications:


(All judges concurred, Judge McCarty concurred in part and in the result without separate written opinion.)

Archer v. Harlow’s Casino Resort & Spa, 2020-CP-00930-COA (Civil – Other/Default/Excusable Neglect)
Affirming in part and reversing in part the circuit court’s grant of the defendant’s motion to dismiss, holding that the circuit court did not abuse its discretion in finding that the defendant showed excusable neglect when it sought an extension of time to answer the complaint thirty-one days after being served and holding that the circuit clerk did not err by correcting a mistake and removing an entry of default, but holding that the trial court should have dismissed the complaint without prejudice and allowed the plaintiff an opportunity to amend her complaint under Rule 15(a).

ADDENDUM – COVID AND THE LAW: The defendant casino blamed the COVID-19 pandemic for being late to respond to the complaint. The casino was served with process on March 9, 2020, three days before the governor of Kentucky (where the casino’s counsel is located) issued a state of emergency and one week before Governor Reeves entered an order in Mississippi closing the casino. The casino asserted that these restrictions made it difficult to gather information from the closed casino in order to prepare and answer. The circuit court granted the late-filed extension request “in light of the current pandemic and government orders restricting operations and travel.” The court of appeals held that this was not an abuse of the circuit court’s broad discretion in this realm. In this case: COVID shutdown in March 2020 = “excusable neglect.”
(All judges concurred, Judge Wilson concurred in part and in the result without written opinion.)

Everett v. Dykes, 2020-CP-01331-COA (Civil – Property Damage/Recusal/Rule 48B)
Dismissing a pro se appeal of an order denying a motion for recusal of the circuit judge, holding that the appellant failed to comply with the procedure required by Rule 48B of the Mississippi Rules of Appellate Procedure for an interlocutory appeal of the denial of a recusal motion.
(Judge Lawrence dissented without separate written opinion.)

Rives v. Ishee, 2020-CA-01328-COA (Civil – Contract/Statute of Limitations)
Affirming the chancellor’s dismissal of a breach of contract lawsuit, holding that the plaintiffs’ second lawsuit was time-barred because they did not file suit until more than three years after they learned they would receive no money from the restaurant and the statute of limitations was not tolled during the first lawsuit because it was dismissed for want of prosecution. The court of appeals also held that the remedy of quantum meruit was inapplicable because there was a contract between the parties.
(Judge Westbrooks concurred in part and dissented in part, joined by Judge Greenlee.)

Other Orders

Westmoreland v. State, 2020-KA-00509-COA (denying motion for rehearing)
Winters v. State, 2020-KA-00809-COA (denying motion for rehearing)

Complete Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 1, 2022

Today’s court of appeals opinions involve a reputed patent troll, alienation of affection, and a bureaucratic nightmare.

International Association of Certified Home Inspectors and Nick Gromicko v. HomeSafe Inspection, Inc., 2020-CA-00520-COA (Civil – Contract/Misrepresentation/Damages Proof)
Affirming in part and reversing in part the circuit court’s judgment on a jury verdict in a suit that included claims for breach of contract, conversion, and negligent misrepresentation filed by a patent troll holder against a trade association after a deal between the two went poorly. This story began when the patent holder filed a patent infringement suit against a member of the trade association, and the trade association sprang into action and made an effort to strike a deal with the patent holder. The parties reached a deal where patent holder would grant a bulk license to the trade association’s membership to use the patented technology and would agree not to sue any trade association member and, in exchange, the trade association would pay the patent holder a portion of the membership dues it collected. A contract was entered and the a dispute arose about how to carry out the contract that centered around how the license was presented on the trade association’s website. The patent holder filed suit and the jury returned a verdict in favor of the patent holder against the trade association and its founder. The court of appeals made three main holdings. First, the court of appeals held that the patent holder, which had been administratively dissolved by the Secretary of State at the time the contract was entered, had standing to sue because the former entity had been reinstated by the time the lawsuit was filed. Second, the court of appeals held that the patent holder did not prove compensatory damages for breach of contract and conversion with “reasonable certainty” because the damages model used at trial was prepared by unidentified individuals who did not use any recognized methodology and who did not testify at trial. Accordingly, the court of appeals reversed and remanded to the circuit court to determine nominal damages for the breach of contract and for conversion. Third, the court of appeals discussed the difference between a “misrepresentation of fact” and a “promise of future conduct” and held that the trade association’s “lofty promises” made during negotiations were not misrepresentations about then-existing facts and therefore reversed the judgment of liability on the negligent misrepresentation claim and entered judgment in favor of the trade association dismissing that claim.
(All participating judges concurred.)

Dew v. Harris, 2020-CA-01261-COA (Civil – Torts/Alienation of Affection)
Reversing the circuit court’s grant of summary judgment dismissing ex-husband’s alienation of affection lawsuit, holding that there was a genuine dispute over material facts in the form of opposing affidavits and that the trial court had improperly considered the credibility and the weight of the evidence presented during the summary judgment proceedings. This case was remanded for further proceedings.
(All participating judges concurred.)

In the Interest of L.T., K.T., E.T., and S.T.: Mississippi Department of Child Protection Services v. Youth Court of Warren County, Mississippi, 2021-SA-00069-COA (Civil – Domestic Relations/Youth Court)
Reversing the youth court’s decision ordering CPS to pay attorney fees and travel expenses to a minors’ guardian under Rule 11, holding that Rule 11 cannot be used to award sanctions against a party that has not actually filed anything even when another party has endured a “bureaucratic nightmare.”
(All participating judges concurred.)

Other Decisions

Mississippi Department of Economic and Community Development v. General Reinsurance Corporation, 2020-WC-761-COA (denying motion for rehearing).

Bryant v. Bryant, 2020-CA-883-COA (denying motion for rehearing, Barnes and Wilson would grant).

Complete Hand Down List

Summaries of the Mississippi Court of Appeals opinions of Feb. 15, 2022

Anderson v. S&S Properties, LLC, 2021-CA-33-COA (Civil – Real Property/Summary Judgment/Tax Sale)
Affirming summary judgment granted by the chancery court setting aside a tax sale and ordering the county to refund the purchase price to the purchaser, holding that the purchaser had standing and that the county failed to serve proper notice of the tax sale to the assessed property owners. Note: The COA held that the purchaser had standing to sue in this particular case because the amended version of Miss. Code Ann. § 27-25-27(2) did not apply retroactively. The amended statute provides: “No purchaser of land at any tax sale, nor holder of the legal title under him by descent or distribution, shall have any right of action to challenge the validity of the tax sale.”

Ford v. State, 2020-KA-278-COA (Criminal – Felony/Criminal Procedure)
Affirming conviction of first-degree murder, holding:
1. The defendant was not entitled to a directed verdict under Weathersby because the Weathersby issue was procedurally barred and because Weathersby did not apply in this case where there was contradicting.
2. The circuit court did not err by not allowing the defendant to represent himself because the defendant did not expressly make such a request.
3. The circuit court did not err in allowing an investigator to testify about his recollection of a verbal statement the defendant gave to law enforcement.
4. The defendant’s counsel was not constitutionally ineffective for not proposing a “stand your ground” instruction (trial strategy), not filing a motion for new trial or JNOV (this was deficient, but not “prejudicial” in that there is no reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different), not arguing the Weathersby rule (Weathersby was already held to be inapplicable), and not subpoenaing eyewitness testimony (trial strategy).
5. There was no prosecutorial misconduct during closing argument when the prosecutor argued that the trajectory of the bullet showed that the defendant and the victim were not fighting for the gun.
6. The defendant’s should not be reversed as a result of cumulative error because the other issues on appeal were without merit.

Diversicare of Meridian, LLC v. Shelton, 2020-CA-1362-COA (Civil – Contract/Arbitration Agreement)
Affirming the circuit court’s denial of a motion to compel arbitration in a wrongful death nursing-home case, holding that the nursing home failed to provide sufficient proof that the resident gave her daughter, who signed admissions paperwork including an arbitration agreement, authority to bind the resident to arbitrate any future disputes arising from her stay.
NOTE: Although the court of appeals affirmed the denial of the motion to compel arbitration, it held that the circuit court erred in ruling that written authority was required. Specifically, the court of appeals held: “[A] mentally competent individual may orally grant authority to another person to sign documents required for admission to a nursing home.”

Rutland v. Burroughs, 2020-CA-1100-COA (Civil – Torts/Civil Procedure)
Affirming the circuit court’s grant of summary judgment dismissing a malicious prosecution and intentional infliction of emotional distress lawsuit after the plaintiff’s attorney withdrew, the 60-day period given to the plaintiff to retain new counsel or proceed pro se passed without any such action taken by the plaintiff and the plaintiff did not file a timely response to the motion for summary judgment.

Robinson v. Smith, 2020-CA-1249-COA (Civil – Personal Injury/Counter-Claim/Civil Procedure)
Reversing the circuit court’s grant of summary judgment that was based on a default judgment on a counter-claim, holding based on the plain language of Rules 7, 12, and 13, the counter-claim was procedurally improper because it was not asserted in the answer and the plaintiff therefore has no obligation to respond to it.

Lambes v. Lambes, 2020-CA-95-COA (Civil – Domestic Relations/Custody)
Affirming the chancery court’s ruling that it was in the best interest and welfare of the children to place them in the father’s custody, holding that the father was not precluded from being awarded custody after he admitted to the ground of habitual cruel and inhuman treatment when that admission was based on the chancellor’s statement that all rights regarding custody etc would be preserved, and that there were not misrepresentations in the GAL report warranting reversal when the record showed the chancellor made his decision based upon independent findings of fact.

Tillman v. KLLM Transport, 2021-WC-57-COA (Civil – Workers’ Comp/One-Year Limitations Period)
Affirming the MWCC’s dismissal of a workers’ comp claim based on the one-year limitations period, holding that the dismissal of the workers’ comp claim for the claimant’s failure to file a pre-hearing statement is a “rejection of the claim” sufficient to start the one-year limitations period under section 71-3-53 regardless of when or if a B-31 was filed.

Shannon v. Shannon, 2020-CA-847-COA (en banc) (Civil – Domestic Relations)
Affirming the chancery court’s rulings granting divorce on the ground of habitual cruel and inhuman treatment, granting a permanent restraining order against and divesting title from the at-fault party, applying the Ferguson factors, and denying a motion to continue or to allow remote participation.

Williams v. State, 2020-CP-950-COA (en banc) (Civil – PCR)
Reversing the circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the circuit court did not have sufficient evidence to revoke the defendant’s post-release supervision because (1) the defendant was not convicted of the crime that prompted the revocation of his PRS and (2) there was insufficient evidence in the record that the defendant had failed to pay fees, fines, and restitution. This case was remanded to the circuit court for further proceedings.

Other Orders
4 Denials of Motions for Rehearing

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Mississippi Court of Appeals Hand Downs for February 8, 2022

Blue Cross and Blue Shield of Mississippi v. Brown and Brown of Mississippi, LLC, 2020-CA-1414-COA (Civil – Contract/Garnishment)
Brown obtained two judgments against a BCBS insurance agent, enrolled the judgments, and then filed suit to enforce the judgments and suggestions for writs of garnishment against BCBS and others. BCBS denied it was indebted to the agent. The circuit court ordered BCBS to tender the agent’s commissions to Brown. BCBS appealed, and the court of appeals reversed the circuit court and rendered judgment in favor of BCBS, finding that the agent had assigned her interest in the commissions to a third party long before the writ of garnishment was served. The court of appeals also held that BCBS was entitled to its costs under section 11-35-45 and remanded to the circuit court to address that issue.

Ladner v. State, 2020-KA-299-COA (Criminal – Felony)
Affirming a conviction of possession of a firearm by a felon, holding that it was harmless error for the the circuit court to exclude non-hearsay testimony under the hearsay rule and that the circuit court did not err admitting body cam footage. The opinion lists a claim of ineffective assistance of counsel as one of the issues raised, but there is no discussion of that in the majority opinion, the special concurrence, or the dissent.

Nowell v. Stewart, 2020-CA-728-COA (Civil – Domestic Relations/Child Support)
Affirming the chancellor’s judgment increasing the child support modification based on a material change in circumstances.

Mangum v. State, 2020-CP-1205-COA (Civil – Post-Conviction Relief)
Affirming the circuit court’s dismissal of a motion for PCR based on the statute of limitations and the successive-motions bar.

United Services Automobile Association v. Moffatt, 2020-CA-1391-COA (Civil – Insurance/UM UIM)
The county court granted summary judgment in favor of a UM carrier, finding that the amended complaint naming the UM carrier was time barred because it was filed more than three years after the accident. The plaintiff appealed to the circuit court and the summary judgment was reversed. The UM carrier appealed to the court of appeals and the court of appeals affirmed the circuit court and remanded the case to the county court. The court of appeals held that there was a genuine fact issue for a jury as to when the plaintiff’s UM claim accrued based on when it could be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor.

Lowe v. State, 2019-KA-1621 (Criminal – Felony/Confrontation Clause)
Affirming a conviction of the sale of cocaine and sentencing as a habitual offender, holding that an officer’s testimony that a non-testifying confidential informant said she had bought drugs from the defendant in the past violated the Confrontation Clause of the Sixth Amendment but was harmless error.

Other Orders
6 Rehearing Denials

Link to Hand Down List