Decisions – Ct. of App. – Feb. 18, 2014

Kinzie v. Belk – Kinzie drove trucks for Triangle Trucking.  He picked up a loaded shipment at Belk and drove it to another location.  While unloading it, some of the cargo fell on him and injured his back.  Kinzie sued Belk for negligent loading and securing of cargo.   During discovery, Kinzie was asked for any medical opinions given by doctors regarding his injuries.  He objected to the scope but then described the various work restrictions placed on him as well as the fact he had been assigned  a 10% permanent impairment rating to the body as a whole. He further claimed that there were various household activities he could not do including taking care of the lawn, etc..  Belk hired an investigator who filmed Kinzie working with someone else on  a shed in his yard.  Belk filed a motion to dismiss claiming that Kinzie had misrepresented the extent of his injuries.  The trial court (Weill) granted the motion even though Kinzie claimed that nothing he was doing on the tape violated his doctor’s orders.  On appeal, the Ct. of Appeals reversed finding that the interrogatory responses were not so specific as to show that Kinzie misrepresented his injuries.  For instance, he stated he could not push a lawnmower but was not specifically asked about whether he could use a hammer as he was using  on the shed. 

Cates v. Woods – Cates sued her dentist for malpractice after a tray used to make an impression of Cates’ teeth became stuck in her mouth. When Cates failed to designate an expert, the defendant moved for and was granted summary judgment.  The Ct. of Appeals affirmed finding that this scenario was not an exception to the rule requiring expert evidence in a malpractice case.  

Loftin v. Jefferson Davis County Public School Dist. – Loftin filed a petition in chancery seeking production of his employment records with the JDCPSD.  He also sought to delay his non-renewal hearing with the JDCPSD.  The court denied relief.  More than 10 days later, Loftin filed a motion for reonsideration which was denied on the grounds that Loftin had gone forward with the hearing without the records he had sought. Loftin appealed and the Ct. of App. affirmed noting that the standard of review from an appeal of a 60(b) motion is abuse of discretion.  Had he filed a motion for reconsideration within 10 days (which would have brought it under MRCP  59)  the time to file the notice of appeal from the final judgment would have been tolled.  A motion pursuant to MRCP 60(b) does not toll the time for filing the notice of appeal and the decision on that motion is reviewed for abuse of discretion.  

Darden v. Wilkinson Co. Board of Supervisors – leaseholders of 16th sect. lands appealed from an increase in their ad valorem taxes in 2008.  Since they failed to timely object, their right to challenge those assessments lapsed and they tried to challenge it via an objection to the 2010 assessments.  However, the large assessment increases occurred in 2008 and 2009 and the leaseholders did not challenge either. When they challenged the minimal increase in 2010, they claimed that they could also challenge the earlier increases as legally  invalid.  The Court held that the 2008 and 2009 increases were presumptively valid even though they were for more than 10%.  And since the 2010 increase was less than 10%, the leaseholders were unable to prove that they were invalid.  

Fields v. CIty of Clarksdale – Fields appeals from his termination of captain of the Clarksdale Fire Dept. for insubordination. The case was already before the court of appeals with regard to the preparation of and payment for the transcript. When the transcript was not timely filed, the trial judge ordered that Fields be reinstated.  Fields then asked for another hearing on the amount of back pay to which he was entitled.  Meanwhile, the transcript was prepared and the City asked for a hearing on the merits of whether Fields should have been fired. The court denied both requests for relief.  Field appeals the denial of back pay and the City asks the Court to remand for a full hearing on whether Fields was rightfully terminated. The Ct. of Appeals reversed the trial court’s decision and ordered the case remanded for a full hearing on the termination.  Back pay would not need to be addressed unless Fields prevails there. 

Perry v. CCBCC Operations – Fire damaged a building owned by Perry.  Perry claimed the fire was caused by a power cord to a coke vending machine located in the the space rented by Perry’s tenant, Hudson’s Dirt Cheap.  Perry sued  CCBCC, the owner of the vending machine, and Dirt Cheap offering the opinion of an expert that the sequence of burglar alarms that went off after the fire ignited indicated ethat the fire started behind the vending machine. The trial court granted summary judgment for the defendants based on the lack of evidence.  The court did so after notifying the parties that it would render an opinion without a hearing and giving the parties a last opportunity to provide the court with evidence.  In granting summary judgment, the court did not rule on CCBCC’s motion to strike certain expert reports provided by Perry. On appeal, the Ct. reviewed summary judgment de novo and concluded that Perry failed to establish that CCBCC had a duty to Perry and that Perry’s argument that summary judgment should have been denied to both defendants based on res ipsa loquitor was meritless since res ipsa did not apply here.  As far as the failure to rule on CCBCC’s motion to strike, any error inured to Perry’s benefit. .

 

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