Decisions – Ct. of App. – March 25, 2014 – part one

Jane is having problems posting the following information, which is the first part of the opinions handed down by the Court of Appeals today. So, even though this post appears under my name, Jane wrote it.

Manhattan Nursing and Rehabilitation Center v. Pace – Plaintiffs alleged that the nursing home caused their 84-year-old relative to become dehydrated and die.  A more than million dollar verdict was reduced to just over half a million (due to the $500,00 cap for noneconomic damages). Two days before her death she was admitted to the hospital with dehydration.  Her relatives allowed  a “do not resuscitate” order and she died.  The death certificate stated that the cause of death was hyopercapnic respiratory failure likely due to urinary tract infection and acute renal failure.  Prior to trial, the court (Judge Green) granted a motion in limine disallowing the nursing home to adduce evidence that the family was contributorily negligent in having the DNR order entered. The Ct. of App. reverses on this basis as well as the admission of hearsay testimony from the deceased’s relatives that they were told upon the admission of their relative they were told her condition was hopeless. 

Kent v. Mississippi Dep’t of Employment Security –  Kent was a lab coordinator at River Region Medical Corp.  SHe was fired for substandard work after failing to report that a lab instrument was out of compliance for several months.  She was denied benefits for misconduct and the Court of Appeals affirms.

Fortenberry v. State – Fortenberry was convicted of agg. assault and sentenced to 20 years with ten suspended, five to serve and five years probation. Fortenberry argues insufficient evidence in that he shot the victim in self defense after they argued.  The Court of Appeals affirms.

Hoover v. Callen Adverse possession case. The Court of App. affirms denial of neighbor’s claim that he possessed disputed land by adverse possession or by easement of necessity.

West v. State – West was convicted of shooting into an occupied dwelling and burglary with intent to commit assault.  On appeal he argues only a speedy trial violation. Neither the trial court or the Court of Appeals finds a speedy trial violation.

City of Natchez v. La Barre – La Barre sued the City after he injured himself by falling on the sidewalk.  After a bench trial, the court found that La Barre was entitled to damages of $80,000 but since he was 50% negligent, could collect only $40,000. The Court of Appeals reversed finding that the city was immune via  discretionary function immunity.   The sidewalk was in bad shape after a hurricane hit the City in 2008 causing the facade of a building to fall.  The City claimed that it erected barricades and warning signs. LaBarre lived in the area and claimed that he stepped on the brick part of the sidewalk that was not barricaded. The Court holds that there is no statute mandating that the City repair sidewalks and thus anything they did in that regard was discretionary and immune from suit.

Reynolds v. State – Reynolds was convicted of murder and felon in possession.  The murder was typical of those in our courts.  Two thugs – ostensibly friends – get into an argument and thereafter it is kill or be killed.  It is just a matter of who kills whom first. (word of advice to defendant – if offered a deal for one or five years – TAKE IT).
Anyway, Reynolds argued that his trial counsel was ineffective in failing to stipulate to a prior conviction; 2) object to evidence of additional bad acts; and 3) object to a circumstantial evidence instruction. The Court of Appeals finds that Reynolds cannot defeat the rebuttable presumption that all three failures were strategic decisions by counsel. Besides, the defense requested the circumstantial evidence instruction about which he now complains. Moreover, there is nothing wrong with that instruction which reads as follows: “The Court instructs the Jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the Defendant, either as to Count One or Count Two of the Indictment, then the evidence for the State must be so strong as to establish the guilt of the Defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.” Reynolds objects to double hearsay when a witness testified that the victim told him that another person had tried to break up the initial fight. The Court of App. held that this was not introduced to prove the truth of the matter. Nor was it hearsay when a witness testified that the victim feared for his life since this explained why the victim had a gun.

2 thoughts on “Decisions – Ct. of App. – March 25, 2014 – part one

  1. The Pace decision is a good example of “winning the evidentiary battle but losing the appeal.” Those rulings made the judgment DOA. Clever, plaintiffs, very clever. (I also note Davis Frye is becoming the Bruce Lee of nursing-home med-mal.)

  2. Thank you, Reid. Maybe I can now finish it for the FOURTH time.
    And that winning the battle and losing the war happens a lot to another local attorney I can think of. Be careful what you ask for.

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