Decisions – Ct. of Appeals – Feb. 4, 2014

Ward v. Ward Court granted ID divorce to couple with two children. The wife appeals only the financial stuff including whether the chancellor erred in not holding the husband responsible for wasting assets; whether the chancellor erred when he changed his mind and lowered the periodic alimony from $4,000 to $2,500; and whether he erred in valuing the husband’s retirement account. The Ct. of Appeals found no error.

Miller v. State – Miller was convicted of sale of .6 grams of cocaine and sentenced to thirty years without parole. On appeal he raised a confrontation issue when a lab tech. was permitted to testify to the results of a test he did not conduct. The person who testified was the technical reviewer of the technician who ran the test. That person had moved at the time of trial. The Court found no error inasmuch as the technician was asked for her own expert opinion concerning the substance, based on her review and work in this case and the Miss.S.Ct. has previously held “that a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was ‘actively involved in the production of the report and had intimate knowledge of analyses even though she did not perform the tests firsthand.’” Miller was represented on appeal by the Office of Indigent Appeals. He filed his own brief alleging insufficient evidence and the like. He also argued that “he was entitled to a continuance because he was under the influence of marijuana at trial.” If the Ct. of Appeals was amused by this issue, the justices masked it brilliantly. Suffice it to say, Miller lost. Miller has filed his own motion for rehearing.

Faulkner v. State – Cynthia Faulkner was sentenced to 25 years for DUI homicide. Her car hit another head on in Batesville, Mississippi. A passenger in the other car died. Faulkner’s urine showed the presence of acetaminophen, benzodiazepines, and opiates. Witnesses testified that Faulkner was weaving through traffic and after the accident she was glassy-eyed and confused. Faulkner did not testify. On appeal she argues sufficiency of the evidence. The Ct. of Appeals affirmed.

Jennings v. Shulerlegal malpractice for failure to file financing statement. “The dispositive question is whether Shuler, as a matter of law, owed her a duty to file a financing statement to perfect an interest in collateral covered by a security agreement Shuler had drafted.” Jennings had loaned her son Luther some $500,000. When Jennings’ other children found out about this, Jennings had Shuler, under the direction of her other son, draft: (1) a promissory note; (2) a deed of trust on West’s real property; (3) a security agreement covering Luther’s nine percent interest in H&G, Luther’s share in the West Family Trust, and Luther’s interest in some farm equipment; and (4) an assignment to Jennings of Luther’s interest in the collateral upon default until Luther paid off the debt. Specifically, the security agreement granted Jennings an interest in “[a]ll farm equipment now owned or hereafter acquired by [Luther], including but not limited to those items of equipment set forth on Exhibit ‘A’ attached hereto[.]” But there was no attached Exhibit A. This is because when Jennings and Luther came in to sign the documents, Shuler asked them for a list of equipment. Shuler filed the deed of trust but not the financing statement because he was waiting on the lost of equipment. Instead, a few months later, Shuler was told by the bank that Jennings had transferred to the bank the right to receive the loan repayments Luther owed Jennings. Shuler handed those documents to the bank which received them with an acknowledgment that there was no list of equipment. Luther gave the equipment list to Shuler some months later. After another few months, Jennings sent Luther a letter acknowledging his default, threatening to obtain a judgment against him, but giving him another chance to work things out with the bank. According to Jennings, she believed this letter was sufficient notice of Luther’s default for the terms of the assignment to take effect, making her the outright owner of Luther’s nine percent interest in H&G and Luther’s interest in the West Family Trust. But none of the bank’s records reflected any transfer of ownership. Instead, the records showed West was still the owner and was still paid.

Luther filed bankruptcy at which time H&G paid Luther’s interests to Jennings. Jennings filed her proof of claim with the bankruptcy court. The trustee ended up initiating an adversary proceeding challenging Jennings’ secured claims based on the absence of a filed financing statement. Jennings claimed it was only then she learned that no financing statement was filed. Nevertheless, Jennings settled with the trustee for an amount some $15,000 more than the appraised value of Luther’s interest in H&G.

Jennings then filed a malpractice case against Shuler. The trial court granted summary judgment to Shuler finding he had no duty to Jennings. On appeal, the Ct. of Appeals stated that it would not go so far as to hold that Shuler had no duty to file the financing statement to Jennings as a matter of law. The Court nonetheless upheld summary judgment. “We find that, even if Jennings established a triable question of Shuler’s professional negligence by not filing a financing statement, she cannot show damages proximately caused by the failure to file. Further, her claim was filed outside the three-year statute of limitations.” Carlton dissented in an opinion joined by Lee and James. I didn’t read it because I was already bored trying to summarize the majority opinion. However, I always interpret a Carlton dissent as a shot at a cert. grant.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s