Tag: Mississippi Supreme Court

Mississippi Supreme Court Decisions of May 26, 2022

The Mississippi Supreme Court handed down two opinions today and each packs a punch. Webb v. State has a thorough and concise analysis of issues surrounding the authentication of screenshots of Snapchat messages. Ware v. Ware is a multifaceted, chancery court battle-royale among family of the decedent involving primarily the fate of the decedent’s shares of family corporations.

Webb v. State, 2021-KA-00082-SCT (Criminal – Felony/Authentication of Social Media)
Affirming conviction of one count of fondling and three counts of sexual battery of two underage girls, holding that the circuit court did not abuse its discretion in a slew of evidentiary rulings including (1) the admission of prior sexual abuse by the defendant; (2) the admission of a photo of an entry from a diary belonging to one of the victims; (3) the admission of screenshots of Snapchat messages over an authentication and unfair prejudice challenges; and (4) the admission of text messages between the defendant and one victim’s mother. The Supreme Court was unpersuaded by the defendant’s final argument that his conviction was against the weight of the evidence.
(All justices concurred.)

Practice Point – This is a case to bookmark for authenticating social media content or other screenshot material. The Supreme Court took a deep dive into the issue of authenticating the Snapchat screenshots at issue in this case. The screenshots at issue were taken by one victim’s mother, but the mother did not provide authenticating testimony. The Court analogized screenshots to photos, and held that screenshots do not have to be authenticated by the person who took the screenshot:

[Legal writing sidebar: I like Justice Maxwell’s use of “And” to start the third sentence. We were all told at some point that one should never begin a sentence with a conjunction. But I think doing so here effectively added clarity and concision to the opinion.]

The defendant also asserted that the State failed to offer an adequate foundation for the screenshots because they did not prove that he was on the “other side” of the Snapchat communications with one of the victims. The Supreme Court noted that something more than a profile photo and an account name is required, but that “something more” can be established in many ways including circumstantial evidence:

Ware v. Ware, 2020-CA-00702-SCT (Civil – Wills, Trusts, and Estates)
Affirming in part and reversing/remanding in part a direct appeal and affirming in part and dismissing as moot in part a cross-appeal of a messy, consolidated estate case and corporate dissolution case between and among a surviving wife and the three children (a son and two daughters) she had with the decedent. The decedent owned 25% each of four family corporations. His will placed most of his assets including these shares into testamentary trusts for which his wife and three children were trustees, and the primary beneficiary was the wife with limited distribution potential to the children. Unsurprisingly, litigation ensued over how to manage the corporations and dispersion of the decedent’s assets.

The son filed for dissolution of the corporation, the chancellor denied the daughters’ motions to join/intervene, the chancellor appointed a receiver by agreed order, and the chancellor ultimately ordered that the shares by offered for sale to the corporations and then the dissolution of the corporations. The daughters appealed the denial of their motions to join/intervene and the wife appealed “a multitude of issues.” The son cross-appealed the chancellor’s net asset value determination date and methodology.

The Mississippi Supreme Court (1) reversed the chancellor’s ruling that the estate must offer the shares to the corporation prior to transferring them to the trusts, (2) affirmed the chancellor’s denial of the motions to intervene, (3) affirmed the chancellor’s decision to dissolve the corporations, and (4) reversed the dissolution judgment to the extent that it allowed the corporations to purchase shares from the estate. Accordingly, the Court remanded the case back to the chancery court to determine how to distribute the money from the sales of the corporations in which the estate holds 25% of the corporate shares.
(Chief Justice Randolph did not participate.)

Note – There is a lot more happening in the details of this opinion that I am not going to wade into here. If something mentioned above touches your practice areas, you will need to dive in yourself.

Other Orders

Grayson v. State, 1998-DP-01782-SCT (dismissing pro se motion to carry out execution forthwith)

Sims v. Sims, 2020-CT-00327 (denying cert) (grandparents, if you want to spend a lot of money to accomplish little more than firebombing your family, suing your children for grandparent visitation may be right for you)

Westmoreland v. State, 2020-CT-00509-SCT (denying cert)

Wilson v. State, 2020-CT-00762-SCT (denying cert)

Flechas v. The Mississippi Bar, 2021-BA-01051-SCT (granting motion to accept the irrevocable resignation of Eduardo A. Flechas)

In Re: Hon. James McClure, III and Hon. Gerald W. Chatham, Sr., 2022-IA-00319-SCT (treating petition for writ of prohibition filed by Circuit Court Judges James McClure, III, and Gerald W. Chatham, Sr., as a petition for interlocutory appeal pursuant to M.R.A.P. 5; granting permission to appeal, and directing all judges of the Circuit Court of the Seventeenth Judicial District are hereby to appear before Mississippi Judicial College Director Randy G. Pierce for a conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding by the Court, including settlement)

Hand Down List

Mississippi Supreme Court Decisions of May 12, 2022

The Mississippi Supreme Court handed down six opinions today with subject matter covering capital murder conviction and death penalty, UM/UMI coverage, election contests, appellate procedure, wills, and judicial estoppel.

Johnson v. Brock, 2020-EC-00982-SCT (Civil – Election Contest/Summary Judgment)
Affirming summary judgment dismissing the plaintiffs’ contest the results of a city counsel election, holding that the plaintiffs failed to satisfy their burden in opposing summary judgment where the plaintiffs’ briefs relied upon affidavits that were not in the record and they otherwise failed to come forward with evidence that there were voting irregularities that led to their election losses.
(Justice King did not participate.)

Bufkin v. Geico Insurance Agency, Inc., 2021-CA-00251-SCT (Civil – Insurance/UM/UIM)
Affirming summary judgment in favor of the UM carrier, declining to overrule precedent holding that an employee is not legally entitled to make a claim under their employers’ underinsured motorist coverage.
(All justices concurred.)

Note – The plaintiff argued Mississippi’s law on this question of statutory interpretation was the minority approach and urged the Supreme Court to adopt the majority view. The Supreme Court declined to do so:

McRae v. Mitchell, 2021-IA-00101-SCT (Civil – Other/Interlocutory Appeal/Appellate Procedure)
Dismissing an appeal from a non-final judgment of the chancery court, explaining that the Mississippi Supreme Court treated the notice of appeal as a petition for interlocutory appeal and granted the petition, but held that it lacked jurisdiction since the notice of appeal was not filed within 21 days of after the entry of the non-final judgment.
(Chief Justice Randolph did not participate.)

Clark v. State, 2019-DP-00689-SCT (Criminal – Death Penalty – Direct Appeal)
Affirming conviction of capital murder and sentence to death by lethal injection for the slaying of a convenience store clerk in Canton, Mississippi. The issues raised on appeal that the Mississippi Supreme Court addressed were:


(Justice Kitchens dissented, joined by Justice King and Justice Ishee. Justice King dissented, joined by Justice Kitchens and Justice Ishee.)

NOTE – The majority opinion is 99 pages long plus 13 pages of appendices. There are 34 pages of dissents. The curt summary above does not do this opinion justice because I simply do not have the bandwidth to tackle the details of this opinion at this moment.

Estate of Bakarich v. Bakarich, 2020-IA-00339-SCT (Civil – Wills, Trusts, and Estates/Interlocutory Appeal)
Affirming the chancellor’s denial of the co-executrices’ request based on a fee-shifting provision in the will seeking to make a challenger pay the estate’s attorney’s fees in defending challenges to the co-executrices’ actions, but reversing the the chancellor’s decision directing the co-executrices to personally pay the estate’s costs and attorney’s fees associated with the underlying motions and petitions.
(Justice King concurred in part and dissented in part, joined by Justice Kitchens. Justice Beam did not participate.)

Jones v. Alcorn State University, 2020-CA-01238-SCT (Civil – Other/Judicial Estoppel)
Affirming the dismissal of the plaintiff’s breach of contract lawsuit, holding that the plaintiff’s lawsuit was barred by the doctrine of judicial estoppel because the plaintiff failed to reveal his lawsuit in two bankruptcy filings.
(Justice Maxwell [1] wrote a special concurrence, joined by Chief Justice Randolph (who wrote the majority opinion)[2], Justice Coleman [3], Justice Beam [4], and Justice Chamberlin [5], and by Justice Griffis in part. Justice Griffis concurred in part and dissented in part, joined by justice Kitchens.)

Question – What is the effect of a five-justice special concurrence from a nine-member court? Anything other than letting future litigants know that a majority of the court agrees whatever propositions are in the special concurrence? I will look into it later, but I do not know the answer off the top of my head.

Other Orders

Augustine v. State, 2019-CT-01467-SCT (denying motion for rehearing)
Johnson v. State, 2019-CT-01801-SCT (dismissing cert petition)
Figueroa v. State, 2020-CT-00114-SCT (denying cert petition)
Piccaluga v. State, 2020-CT-00346-SCT (denying cert petition)

Hand Down List Page

One more thing – At some point early this morning this blog had its 1,000th unique visit and passed 1,800 total hits in the three months since I launched it. Many thanks to those who have visited, subscribed, and shared the blog and to those who have provided encouragement and helpful feedback. I hope that it has been and continues to be a useful resource.

Mississippi Supreme Court decisions of May 5, 2022

The Mississippi Supreme Court handed down two opinions today. One addresses whether additional discovery may be had or the record supplemented at the circuit court level on appeal from a decision of a governing authority of a municipality or county. The other is a circuit clerk v. drug court dispute over the collection of drug court participation fees.

Board of Supervisors of Jackson County, Mississippi v. Qualite Sports Lighting, LLC, 2020-IA-01301-SCT (Civil – State Boards and Agencies)
Reversing and remanding circuit court’s order directing the supplementation of the record in an appeal of a decision of the Jackson County Board of Supervisors, holding that the 2018 amendments to the process of appealing a decision of the governing authority of a municipality or county as laid out in section 11-51-75 (Rev. 2018) of the Mississippi Code Annotated did not allow Qualite, who was appealing the board’s decision to the circuit court, to conduct discovery or go beyond the record that was originally before the board.
(All justices concurred.)

Thompson v. DeSoto County Intervention Court, 2020-CA-00956-SCT (Civil – Other/Drug Court)
The circuit court entered an order directing that drug court fees be paid to the circuit clerk’s office. The circuit clerk filed a petition to set aside or rescind that order, arguing that the drug court participation fee was not a criminal fine or fee and that the circuit clerk’s office was not compensated for processing the participation fee, and want not able to take a cut of it, since she had no statutory duty to do collect the participation fee. The circuit court denied the motion and the circuit clerk appealed. The Mississippi Supreme Court affirmed, holding that the drug court is a criminal court and that fees obtained during its proceedings are criminal fees. Therefore, it is the circuit clerk’s duty to collect drug/intervention court fees under section 9-1-43(5) of the Mississippi Code Annotated.
(Justice King concurred in result only without separate written opinion. Justice Chamberlin did not participate.)


NOTE – The circuit clerk asked for compensation on appeal. The supreme court addressed that request, but did not award compensation because the scope of review was limited to the clerk’s petition which did not seek compensation and the circuit court’s order on that petition:

Other Orders

Hartzler v. Bosarge, 2019-CT-01606-SCT (lifting the suspension of certiorari proceedings and granting the Rule 42 (MRAP) Joint Motion to Dismiss Appeal insofar as the petition for a writ of certiorari is dismissed as moot)

Belk v. State, 2020-CT-00465-SCT (denying cert)

Watson v. State, 2020-CT-00789-SCT (denying cert)

Sutton v. State, 2020-CP-01322-SCT (denying rehearing)

Humphrey v. Steve Holts, 2021-CT-00046-SCT (granting cert)

Hand Down Page

Mississippi Supreme Court decisions of April 28, 2022

After some sort of technical hiccup with the State’s web domain that knocked the Mississippi Supreme Court’s website offline for a spell, they are back in business. The Court handed down one hearty opinion in a wrongful death case that involves § 1983, qualified immunity, the MTCA, the appealability of summary judgment denials, and hearsay.

City of Jackson v. Johnson, 2020-CA-00318-SCT (Civil – Tort/Wrongful Death/1983/MTCA)
Reversing and rendering a jury verdict holding the City liable under § 1983 and affirming the trial court’s judgment finding the City liable under the MTCA for the decedent’s wrongful death. The victim was murdered shortly after calling 911 to report a prowler. The dispatcher did not tell the victim to remain on the line, in violation of the City’s policies and procedure. Two JPD officers went to the victim’s house, did not detect that the prowler had entered a window, did not make contact with the victim, and left. The victim was found dead the next day. The victim’s family filed suit under § 1983 and under the MTCA.

The 911 operator and officers got out via qualified immunity on summary judgment. The § 1983 case was tried by a jury and the MTCA case was tried “simultaneously” before the bench. The jury found that the City violated the victim’s constitutional rights to due process and awarded $1M in damages. The trial court awarded $500,000 (i.e. the statutory maximum) under the MTCA.

On appeal, the Mississippi Supreme Court held that the City was entitled to a directed verdict on the § 1983 claim, reasoning that our constitutional due process rights do not include the right to be protected by the state from acts of private violence. Regarding the MTCA claim, the Supreme Court held that the 911 dispatcher’s conduct in responding to the victim’s call did not involve an element of choice or judgment and the City was therefore not protected by discretionary function immunity from liability under the MTCA.

There was a hearsay issue involving the defendant’s statement contained in the police report that warrants a brief discussion. The trial court admitted the police report, but with the assailant’s statement to police redacted, finding that the assailant could not be compelled to testify against himself and that hearsay exception in Rule 804(b)(3) did not apply because the statement was not being used against the assailant/declarant. Later in the trial, the court allowed the plaintiff’s expert to reply on the assailant’s statement in forming his opinions over the City’s objection that the expert had relied on inadmissible hearsay. The Mississippi Supreme Court did not have to address the argument that the expert’s testimony was a “conduit for otherwise inadmissible hearsay” because it held that that the assailant’s statement to police was admissible under the Rule 804(b)(3) exception after all, so there was no error in admitting the expert testimony that relied upon it.

(Chief Justice Randolph wrote a special concurrence, joined in part by Justice Maxwell, Justice Chamberlin, Justice Ishee, and Justice Griffis. Justice Griffis also wrote a special concurrence.)

Practice Point – I found it remarkable that the Mississippi Supreme Court heretofore had not addressed the issue of whether the denial of a motion for summary judgment can be appealed after a trial. They did here, and now we know:

One More Thing – We were this close (maybe) to the Mississippi Supreme Court addressing one of my pet issues: When a case involves an MTCA defendant and a non-MTCA defendant how, exactly, should a hybrid bench/jury trial proceed?

resolving-the-conflictDownload

Other Orders

Hutto v. State, 2017-DR-01207-SCT (granting the plaintiff’s Motion for Leave to File Rebuttal to Opposition to Motion for Appointment of Counsel for Representation for Successive Petition for Post-Conviction Relief and the State’s Motion for Leave to File Surrebuttal in Opposition to Motion for Appointment of Counsel for Representation for Successive Petition for Post-Conviction Relief)

Randle v. Randle, 2020-CT-0033-SCT (granting cert)

McPhail v. McPhail, 2020-CA-00739-SCT (denying Motion Pursuant to Rule 8 and Rule 27 of the Rules of Appellate Procedure is hereby denied and remanding to the chancery court of Grenada County for an adjudication of a request for release on bond pending appeal in light of his child support payment subsequent to the February 24, 2022 denial of his prior motion)

HL&C Marion, LLC v. DIMA Homes, Inc., 2020-CT-00750-SCT (CORRECTION: granting cert 6-0)

Williams v. State, 2020-KA-772-SCT (denying rehearing)

Morningstar v. Perkins Law Firm, 2020-CT-1203-SCT (denying cert)

Embrey v. Young, 2021-CT-91-SCT (denying cert)

Hand Down Page

Summaries of the Mississippi Supreme Court’s opinions of April 21, 2022

The Mississippi Supreme Court handed down two opinions today. One decides an interlocutory appeal of the denial of the defendants’ motion for summary judgment in a tire blowout case that hinged on the doctrine of res ipsa loquitur. The other is a criminal case considering convictions for attempted willful trespass and auto burglary that addresses issues of whether the indictment was sufficient, whether evidence of other was acts should have been excluded, and whether the defendant’s “theory of the case” instruction was wrongly denied.

Darling Ingredients Inc. v. Moore, 2020-IA-01149-SCT (Civil – Personal Injury/Res Ipsa Loquitur)
On interlocutory appeal, reversing the circuit court’s denial of the defendants’ motion for summary judgment in an auto liability case stemming from the failure of a tire on the defendants’ vehicle, holding that the doctrine of res ipsa loquitur did not apply because a vehicle’s tire can fail for reasons other than negligence of the vehicle’s driver or owner. Because the doctrine of res ipsa loquitur was not applicable and the plaintiff had no evidence of negligence on the part of the defendants, judgment was rendered for the defendants.
(This decision was unanimous)

NOTE: Although this opinion stops just short of specifically saying so, I read it as establishing a bright-line rule that the doctrine of res ipsa loquitur is inapplicable to cases where a motorist is injured by the failure of a tire on another vehicle:

This opinion is also noteworthy for its succinct summary of the doctrine of res ipsa loquitur and its analysis of the second element (“the occurrence was such that in the ordinary course of things it would not have happened if those in control of the instrumentality used proper care”) that will be useful in future RIL briefing.

Brady v. State, 2021-KA-00163-SCT (Criminal – Felony/Willful Trespass/Auto Burglary)
Affirming convictions of attempted willful trespass and two counts of auto burglary, holding (1) no error in denying a motion to quash the indictment for attempted burglary of a dwelling because the indictment adequately alleged an overt act, (2) no error in not sua sponte precluding evidence of other bad acts not related to the indicated charges, and (3) no error in denying a proposed instruction that the defense argued expounded on the defense’s theory of the case where the subject of the proposed instruction was adequately covered in other jury instructions.
(Justice Coleman dissented, arguing that the indictment failed to allege an overt act in furtherance of the attempted breaking and entering)

Other Orders

Carter v. State, 2019-CT-01854-SCT (denying cert petition)
Burgin v. State, 2020-CT-01031-SCT (denying cert petition)
The Mississippi Bar v. Sims, 2021-BD-01090-SCT (granting petition to transfer license to disability inactive status)
In Re: Administrative Orders of the Supreme Court of Mississippi (directing the disbursement of $160,623.66 in civil legal assistance funds among the MS Volunteer Lawyers Project, North MS Rural Legal Services, and MS Center for Legal Services)

Hand Down List

In other news, congratulations to Professor Christopher Green of Ole Miss Law who was cited four (4) times in Justice Thomas’s concurrence in United States v. Madero that was decided today.

Summaries of the Mississippi Supreme Court opinions of April 14, 2022

We will call the blog post title a belated April Fools’ Day joke because the Mississippi Supreme Court did not hand down any opinions today. In the absence of an opinion to summarize, I thought I would share some #AppellateTwitter cringe content that surfaced today.

No litigator likes to lose. Some losses are more frustrating than others. Motions for reconsideration and motions for rehearing are difficult to write and they demand finesse. I would submit that the tack taken by the appellant’s counsel described in per curiam decision from the Fifth Circuit below did not supply the requisite measure of finesse. As tweeted by attorney David R. Fine (who is not the appellant’s counsel referred to in the order):

Well, that strategy didn’t go so well. #appellatetwitter

Originally tweeted by David R. Fine (@finedr1965) on April 14, 2022.

The road to a great motion for reconsideration/motion for rehearing is not the easiest, but overtly insulting the court and court staff is a relatively easy ditch to avoid.

But Twitter did what Twitter does and stirred up some good commentary on how to approach motions for reconsideration/rehearing.

Happy writing. Be careful out there.

Other Orders

Singing River MOB, LLC v. Jackson County, Mississippi, 2019-IA-10630-SCT (denying motion for rehearing)

Magee v. State, 2019-CT-01794-SCT (granting cert petition)

Johnson v. State, 2020-CT-01308-SCT (granting cert petition)

Hand Down List

Summaries of the Mississippi Supreme Court opinions of April 7, 2022

The Mississippi Supreme Court handed down five opinions today. I think Weber v. Estate of Hill will be a frequently cited case on the issue of medical expert causation testimony, especially in the medical malpractice context. There is also an insurance coverage decision (where the court granted interlocutory appeal and then affirmed the circuit court), another medical malpractice case dealing with a hospital’s lack of liability for treatment plans of independent physicians, a contempt of youth court case, and a Mississippi Bar disciplinary decision.

Donaldson v. Cotton, 2020–CA-00581-SCT (Civil – Other/Contempt)
Vacating the a youth court judge’s order of contempt against a county prosecutor fining him for past and continuing refusal to draft youth court orders, holding that youth court judges have inherent authority to order a county prosecutor to prepare orders in youth court matters but that the alleged contempt was constructive criminal contempt and thus the attorney’s due process rights were violated. The order was vacated, the case was remanded, and the youth court judge was direct to recuse for further proceedings.
(Justice Coleman dissented, joined by Chief Justice Randolph and Justice Beam.)

Weber v. Estate of Hill, 2020-CA-00293-SCT (Civil – Medical Malpractice/Causation/Experts)
Denying rehearing and and modifying two paragraphs (¶ 37 and ¶ 38) of the original opinion. On direct appeal, the supreme court affirmed the circuit court’s denial of the defendants’ motion for JNOV that argued there was no admissible expert testimony on causation, holding that the testimony of one of the plaintiff’s medical experts provided a basis for a juror to reasonably conclude that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome even though that expert testified that he lacked the expertise necessary to quantify the degree to which the labor and delivery process aggravated the injury. On cross appeal, the supreme court reversed the circuit court’s reduction of the jury’s $2,538,322 award for non-economic damages, holding that this action filed in December 2002 was governed by Mississippi’s wrongful-death statute because the medical-malpractice noneconomic-damages cap was not in place until September 1, 2004.
(Justice Griffis dissented, joined by Justice Coleman and Justice Maxwell. Chief Justice Randolph did not participate.)

NOTE: This was a big win for the plaintiff and it is a must-read case on medical expert causation testimony, especially in the medical malpractice context. I have not read the record, but my understanding from the majority opinion and the dissent is that no expert specifically testified that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome. Instead, the supreme court allowed the jury to “connect the dots” (the “dots” being other pieces of expert testimony) in determining that the plaintiff satisfied that causation standard even though the plaintiff’s obstetrics and maternal-fetal medicine expert testified he was not qualified to connect these dots and give an opinion as to the percentage aggravation would be.

Mississippi Farm Bureau Casualty Insurance Company v. Powell, 2020-IA-00432-SCT (Civil – Insurance/Coverage)
On interlocutory appeal, affirming the circuit court’s denial of the insurance company’s motion for summary judgment seeking a declaratory judgment that it had no duty to provide coverage, no duty to defend/indemnify, and no duty to pay medpay benefits, holding that a fall from scaffolding that was erected on a trailer that was hitched to an insured pickup was an auto accident arising out of the use and ownership of the covered vehicles.
(Justice Maxwell concurred in result only, joined by Justice Chamberlain and Justice Griffis, and joined by Justice Coleman in part.)

St. Dominic-Jackson Memorial Hospital v. Newton, 2020-IA-00494-SCT (Civil – Medical Malpractice)
On interlocutory appeal, reversing the circuit court’s denial of the hospital’s motion for summary judgment, holding that the Mississippi law does not impose a duty on a hospital to require peer review of a treatment plan before allowing a doctor and patient to use its facilities.
(Justice Kitchens dissented, joined by Justice King.)

PRACTICE POINT: This is less-than-ideal feedback to receive from the supreme court…

Other Orders

Howell v. State, 2020-CA-00868-SCT (directing the parties to file supplemental briefs on the following issue: Whether the Court should overrule Rowland v. State, 42 So. 3d 503 (Miss. 2010), and any other case in which, and to the extent that, we have held the fundamental rights exception to the procedural bars may be applied to the three-year statute of limitations codified by the Legislature in the Uniform Post-Conviction Collateral Relief Act)

Bryant v. Bryant, 2020-CT-00883-SCT (granting cert)

Newell v. State, 2020-CT-01137-SCT (denying cert)

Thornhill v. Walker-Hill Environmental, 2020-CT-01181-SCT (granting cert)

The Mississippi Bar v. Malone, 2021-BD-00467-SCT (suspending attorney Robert W. Malone for two years)

Hand Down List

Summaries of the Mississippi Supreme Court’s opinions of March 31, 2022

The mix of beautiful spring weather and apocalyptic tornado warnings this week set the stage for just one opinion from the Mississippi Supreme Court to compliment the one opinion handed down by the Mississippi Court of Appeals on Tuesday. The case today is an insurance coverage dispute that analyzes several provisions of an excess policy and determines that summary judgment finding of no coverage under a pollution exclusion was in error.

Omega Protein, Inc. v. Evanston Insurance Company, 2020-CA-01097-SCT (Civil – Insurance/Insurance Coverage/Excess Insurance)
The Supreme Court reversed the circuit court’s grant of the excess carrier’s motion for summary judgment in a dec action where the excess carrier sought a declaration of no coverage for injuries and a death sustained in a plant explosion that occurred while a contractor was performing welding work at the plant. The Supreme Court held that (1) a pollution exclusion did not apply as a matter of law because it was ambiguous and susceptible to more than one interpretation and must be construed in favor of coverage, (2) coverage under the excess policy was not triggered by the primary insurer paying out limits because there had been no adjudication of fault or negligence of the named-insured contractor, and (3) the issue of the plant’s status as an additional insured under the insured contractor’s excess policy could not be determined because there had been no adjudication of fault or negligence of the named-insured contractor.
(All justices concurred)

Other Orders

Dooley v. Dooley, 2020-CA-01061-SCT (dismissing appeals filed by appellant and appellees for want of jurisdiction)
Omega Protein, Inc. v. Evanston Insurance Company, 2020-CA-01097-SCT (denying motion for rehearing, withdrawing original opinion, and substituting the opinion above)

Hand Down List

Summaries of the Mississippi Supreme Court’s opinions of March 24, 2022

The Mississippi Supreme Court handed down two opinions today. One is an interlocutory appeal of an order denying a motion to transfer venue centered around an incorrect address listed with the Secretary of State and the other is an initial, arbitration-agreement skirmish in a lawsuit Mississippi’s Community Mental Health Centers filed against United Health Care of Mississippi over a rate-cut dispute.

Weeks, Inc. v. Lewis, 2020-IA-01337-SCT (Civil – Personal Injury/Venue)
Reversing the circuit court’s denial of the defendant’s motion to transfer venue, holding that venue based on a corporation’s principal place of business is determined by “the actual physical location” and expressly rejecting the plaintiff’s argument that venue was proper in a different county where the “principal address” listed in the defendant’s corporate filings with the Secretary of State is located.
(All justices concurred)

United Healthcare of Mississippi Inc. v. Mississippi’s Community Mental Health Commissions, 2020-CA-00697-SCT (Civil – Contract/Arbitration/Preliminary Injunction)
Affirming the circuit court’s ruling enjoining the Medicaid service provider from imposing a 5% rate cut and denying its motion to compel arbitration in a lawsuit filed by Mississippi’s Community Mental Health Centers (CMHC), holding (1) that trial courts have authority to enter preliminary injunctions even when there is an enforceable arbitration agreement, (2) that the record supported the trial court’s finding of a substantial likelihood that the service provider violated Miss. Code Ann. § 43-13-117(H)(1)(c) which governs Medicaid payment rates, and (3) that the trial court did not err in finding that the arbitration agreement was enforceable because it was not signed by a single CMHC board.
(All participating justices concurred; Justice Beam did not participate)

Other Orders

Golden v. State, 2019-CT-00757-SCT (denying cert petition)
M.A.S. v. Lamar County Department of Child Protective Services, 2020-CT-70-SCT (denying cert petition)
Alexander v. State, 2020-CT-177-SCT (denying cert petition)
Smith v. State, 202o-CT-580-SCT (denying cert petition and amended cert petition)
Gordon v. Dickerson, 2020-CT-601-SCT (granting cert petition)
Badger v. State, 2020-M-646 (denying “Motion to Reinvest Jurisdiction Into The Circuit Court of Amite County” and warning that future filings deemed frivolous may result not only in monetary sanctions, but also restrictions on filing applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis)

Hand Down List

Summaries of the Mississippi Supreme Court opinions of March 17, 2022

The folks publishing the hand down lists are not on spring break. There were four opinions today that are must-reads for anyone whose law practice these opinions touch. There is a medical malpractice/expert testimony decision, a dismissal for failure to prosecute decision that is more about the abuse-of-discretion standard of review, a breach of commercial lease opinion, and a will probate opinion.

Claiborne County Hospital v. Truitt, 2020-IA-01017-SCT (Civil – Medical Malpractice/Summary Judgment/Experts)
The plaintiff fell while walking to the restroom to give a urine sample. The plaintiff filed a negligence claim against the hospital, alleging that a nurse failed to assist him to the restroom. The hospital filed a motion for summary judgment on the grounds that the plaintiff lacked medical expert testimony. The plaintiff argued that the layman’s exception applied or, alternatively, that the plaintiff had identified the requisite expert testimony in an interrogatory answer. The circuit court denied the hospital’s motion for summary judgment and the Supreme Court granted interlocutory appeal. The Supreme Court reversed the circuit court and rendered judgment in favor of the hospital, holding that “the layman’s exception does not apply to the facts of this case because Truitt’s claim involves the rendering of medical services and a nurse’s professional judgment for which expert testimony is required.” The Supreme Court also held that the designation via interrogatory answer was insufficient because the “designation does not provide sworn expert testimony” and noting that the plaintiff “only provided the name of his expert and a brief description of the anticipated testimony.”
(All justices concurred)

Leasy v. SW Gaming, LLC, 2019-CT-01505-SCT (Civil – Personal Injury/Failure to Prosecute/Standard of Review)
Reversing the Court of Appeals and reinstating the circuit court’s judgment dismissing the plaintiff’s claim for failure to prosecute, holding that the Court of Appeals improperly reweighed the evidence and reaffirming the controlling abuse-of-discretion standard.
(Justice King dissented, joined by Justice Kitchens. Justice Beam did not participate in the decision)
(Note: At the Court of Appeals level, Judge Carlton wrote a dissent that was joined by Judge Wilson)

Practice Point – Standards of review matter! The Mississippi Supreme Court has shown a renewed interest in standards of review. This opinion is more about the standard of review than it is about the failure to prosecute. The Supreme Court described the Court of Appeals’ incorrect application of the standard of review as follows:

The Supreme Court bluntly concluded:

Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. v. 400 South Lamar Oxford Mad Hatter Partners, LLC, 2019-CT-01702-SCT (Civil – Real Property/Landlord-Tenant Law/Commercial Real Estate)
Affirming the circuit court’s denial of the tenant’s motion for partial summary judgment seeking a dismissal of the landlord’s claims for back rent, holding that the landlord’s demand for possession and the tenant’s departure from the premises did not prevent the landlord from recovering back rent; affirming the circuit court’s grant of summary judgment to the landlord based upon material breaches by the tenant; affirming the Court of Appeals’ finding that the tenant’s mitigation argument was waived because it was not raised prior to the appeal; affirming the Court of Appeals’ decision granting the landlord’s motion to quash the tenant’s request for records related to a news story a spat between the landlord’s principal and another developer because those records were not relevant to the appeal; and affirming the circuit court’s denial of the tenant’s untimely motion to amend to add claims of libel and libel per se because they were delayed and barred by the one-year statute of limitations.
(All participating justices concurred.)

In the Matter of the Last Will and Testament of Luke Beard, Deceased: Antonio Christmas v. Diane Christmas, 2019-CT-01821-SCT (Civil – Wills, Trusts, and Estates/Probate)
Reversing the court of appeals and reinstating the chancery court’s dismissal of a petition to probate a purported will, holding that in the absence of the testimony of at least one subscribing witness, a proponent of a will must prove the handwriting of the testator and at least two subscribing witnesses. This unanimous, textualist decision centered around whether the phrase “or some of them” in section 91-7-7 referred to the subscribing witnesses or collectively to the testator and the subscribing witnesses. Ultimately, the Supreme Court adopted Judge Wilson’s analysis of the textual quandary from his dissent at the Court of Appeals, holding:

The Mississippi Bar v. Henderson, 2021-BD-01141-SCT (Civil – Bar Matters)
Imposing a reciprocal public censure to an attorney publicly censured in Tennessee and assessing costs.

Other Orders

Dille v. State, 2019-CT-00855-SCT (denying petitions for cert)
Lairy v. Chandler, 2019-CT-01423-SCT (granting petition for cert)
Cork v. State, 2020-KA-00060-SCT (denying pro se motion for rehearing)
Magnolia Health Plan, Inc. v. Mississippi’s Community Health Commissions, 2020-CA-00167-SCT (denying motion for rehearing)

Hand Down List