Decisions – Miss.S.Ct. – Jan. 16, 2014

Banks v. Sherwin-Williams – plaintiffs filed lead paint products liability suit. The trial court granted summary judgment for Sherwin Williams. The Miss.S.Ct. reversed and remanded finding that plaintiffs had presented sufficient evidence that the paint in question was Sherwin Williams and thus there was a triable issue of material fact. The children were all attending a Bolivar County Head Start in the early 1990s. Testing done during this time showed that the children had blood lead levels of 15 to 19 micrograms per deciliter. The proof was that the facility hired Sylvester Vickers in 1985 to sand down and repaint all of the outdoor play equipment. In the following years, the Head Start purchased six gallons of lead paint from Sherwin Williams. There was no direct evidence as to where the paint was used but when the MDEQ found unacceptable lead levels in the playground paint in 2000, the paint was in the same colors as the lead paint purchased in the previous years. While Sherwin WIlliams produced evidence that the paint was not Sherwin Williams’ paint. at best there is a triable issue of fact on whether the paint was Sherwin Williams’.

Harrell v. State – On cert. – A Hinds County jury convicted Harrell of two crimes: capital murder and felon in possession of a firearm. He was sentenced to LWOP. The Court of Appeals affirmed both convictions. The Miss. S. Ct. reversed finding that the failure to instruct the jury as to the elements of the armed robbery (which was the underlying offense making the murder capital murder) “deprived Harrell of due process in the form of his right to a jury trial as guaranteed by the Mississippi Constitution.” Reversal required even though there was no objection at trial. The trial court did not err, though, when it gave a flight instruction. The Court has been saying FOR YEARS that the jury has to be instructed on the elements of the underlying felony. When will everyone figure this out? (the trial judge here was Swan Yerger who is no longer on the bench).

Johnson v. Parker Tractor and Implement Company – Affirming the trial court’s dismissal of the garnishment action based on the expiration of the 7-year SOL.

Cox v. State whether revoking parole and imposing suspended sentence was double jeopardy insofar as the offense which caused parole to be revoked – Cox had moved to dismiss indictment for three counts of aggravated assault. “The issue before this Court is whether the justice court’s act of revoking Cox’s suspended sentence for a prior misdemeanor assault and sentencing him to a six-month sentence bars the State from prosecuting Cox’s subsequent felony assaults. We hold that Cox’s double-jeopardy claim applies only to his original charge, conviction, and sentence, but not his subsequent criminal actions. Therefore, we affirm the trial court.”

Ghane v. Mid-South Institute for Self Defense Shooting – Ghane was a Navy SEAL who, along with other members of his team was engaged in a “live-fire, close-quarters combat training” exercise at Mid-South Institute of Self Defense when a bullet allegedly penetrated a ballistic wall, striking Ghane above his protective vest and killing him. The Institute moved for summary judgment on the grounds that the case would “require the trial court to question military policy and operational decisions, thus raising a nonjusticiable political question.” The Miss. S. Ct. reversed on this issue stating that this “tort action is based on the failure of the ballistic wall–a wall independently designed, constructed, and maintained by the defendants. The defendants have failed to demonstrate that military policy and operational decisions are essential to a determination of causation.” The Court affirmed the trial court’s denial of the Institute’s first motion for summary judgment claiming that Ghane had released the claim based on his signing of a release.

Finch v. Finchdivorce, 8.05 issue – Wife was awarded periodic alimony in the amount of $4,000 for
thirty-six months, followed by $3,700 for forty-eight months, and finally $3,400 to be paid indefinitely. She also got $7,000 for attorneys’ fees. Four months later they both filed contempt motions claiming the other had failed to make certain payments. Later, husband filed an amended counter-petition for contempt and modification alleging that wife had fraudulently represented to the court that she had continued to pay all of the marital debts, just as she had through the marriage, but in reality, she had failed to make payments on an American Express credit card that was in his name. Based on this, husband asked for a reduction in alimony from $4,000 to $2,500 to offset the increased costs resulting from her failure to pay. He additionally requested that the court declare his minor child emancipated because the child had refused to communicate him and had legally removed “Stewart” (the husband’s name) as his middle name. The chancellor found that there had been a material change in circumstances since the original divorce decree had been entered. The chancellor retroactively reduced alimony from $4,000 to $2,000 per month based on wife’s failure to disclose social security payments, additional debts, and a joint account with her mother, and the fact that husband had to pay for both wife’s and daughter’s vehicles in order to transfer title. The chancellor retroactively reduced child support from $1,300 to $900 per month and further relieved Stewart of the obligation to pay any of his son’s educational expenses. The Ct. of Appeals affirmed these rulings and the Miss.S.Ct granted cert. The Miss.S.Ct. mostly affirmed but remanded on the issue of whether the husband’s income had indeed declined inasmuch as it was fluctuating (he is a tugboat captain). It was also error to retroactively modify child support since those payments become vested when due. It was not error to hold that husband was no longer required to pay for son’s college expenses but it was error to require son to maintain a “C” average to continue receiving regular child support, “because child-support modifications are to be considered in light of the best interest of the child, including a determination of the parent’s ability to provide for those needs, not the child’s ability to prove worthy of support.”

2 thoughts on “Decisions – Miss.S.Ct. – Jan. 16, 2014

  1. Another place I need to avoid. It joins the list that includes roads, stores in December, post offices if at all possible, the bank at the corner of State and Meadowbrook, . . . .

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