Decisions – Miss.Ct. of App. – April 1, 2014 – part 2

Mosby v. Aurora Cares – Mosby injured his back while working at a Cleveland nursing home.  He was awarded temporary benefits but denied permanent partial disability.   He had been diagnosed with back strain and an initial MRI showed some  disc bulges but nothing acute.  Another doctor noted that the MRI showed mild lumbar spondylosis.   Approximately three months after the injury, Mosby was released to light duty.  Instead he resigned. The Commission ordered an IME.  The doctor opined that the pain did not appear to be work-related but rather  was related to diffuse joint pain. The Court of Appeals affirms finding that there was substantial evidence to support the Commission’s findings.

Sharlow v. Raybourn – Sharlow sued a hair salon after she tripped and fell on the sidewalk in front of the salon.  The trial court granted summary judgment for the salon finding that Sharlow was a licensee.   Sharlow had worked as a receptionist at the salon for years and after she retired, one of the hairdressers gave her free haircuts.   The Court of Appeals affirms finding that while Sharlow was there at the express invitation of the salon, there was no evidence that she was there for the mutual benefit of the parties.

Montgomery v. Miss. Baptist Health Systems –  Patrick Montgomery, a minor, was allegedly injured at Baptist in December of 1997.  In 2008, custody of Patrick was awarded to his father and the father was allowed to intervene.  In 2009, the court granted a motion to compel the plaintiff to comply with discovery.  However, no action was taken and in 2012, the  clerk noticed the case as on the docket for dismissal for failure to prosecute.  Because the clerk did not have the e-mail address of the plaintiff’s attorney, he did not appeal and in August 2012 the court dismissed the case for failure to prosecute. Two days later Montgomery filed a motion to reconsider noting that his attorney did not have notice of the docket call.  In an abundance of caution, the attorney filed a notice of appeal.  At the hearing, the court ruled that it did not have jurisdiction to rule since the notice of appeal had been filed.  He also stated that he would have granted it had the notice not been filed. On appeal the Court finds that the trial court did have jurisdiction to entertain the motion since the post-trial motion was timely filed (within ten days as per MRCP 59(e)).  It therefore reverses and remands with instructions for the trial court to consider the merits of the motion to reconsider.

Strickland v. Darby – this is a motion for habeas corpus arguing that Strickland’s bail should be reduced (Darby is the sheriff in whose custody Strickland resides).     Strickland, a high school teacher,  was charged with enticing a child after requesting a 14-year-old to send him a picture of his penis (allegedly claiming that he would use it to set the boy up with a girl). His bail was set at $500,000 then reduced to $100,000.   Other restrictions included a curfew from 3 p.m. to 7 a.m. and no access to devices that could send or receive e-mails and/or text messages.  Strickland’s family testified they could afford the bail fee for a bond of no greater than $20,000.  On appeal, the Ctr. of Appeals denied relief finding that while the trial court’s refusal to lower the bail was tantamount to denying bail, under the Miss. Const., Art. 3, Sect. 29(3) bail may be denied where the proof is evident or the presumption great that the defendant’s release would pose a danger to the child or the community. 

Evans v. Evans –  The Evans were divorced in 1998.  In 2009, Robert obtained a modification of his child support payments.  He was also granted time to make up an arrearage and ordered to pay Beverly’s attorneys fees.  He appealed and the court reversed the attorneys fees award and remanded for the chancellor to make findings.  The court also  reversed and rendered on the contempt affirming the chancellor’s refusal to relate the modification back to an earlier date.  In 2012, Beverly filed several writs of garnishment based on t he 2009 order that had been appealed.     The circuit court  quashed the writs of garnishment finding that a final judgment had not been rendered  She appealed and the Court of Appeals affirmed finding that the money which Beverly was not a final judgment.  The issues were still on remand with the chancellor.

Breeden v. Buchanan and Nationwide – Shortly after the Breedens divorced and Donald moved to Kentucky, their Marion County Home, insured by Nationwide, burned down.  A claim was submitted and Nationwide claimed it owed Donald nothing on the claim because he no longer had any ownership (Nationwide paid the remaining loan off, $123,384, and the rest, $172,015,  to WIllie Faye).  In August 2011, Breeden filed a complaint against Willie Faye, and Nationwide.  Both WIllie Faye and Nationwide  filed  motions to dismiss pursuant to MRCP 12(b)(6) arguing that the intentional tort claims were barred by the one-year SOL, that the claims seeking to set aside the property settlement agreement (on the grounds that he only signed them because Willie Faye threatened to shoot him) were properly taken up by the chancery court that signed off on the divorce, and that Donald had no insurable interest in the home.

Breeden then submitted an amended complaint withdrawing the claims regarding the property settlement and adding claims for battery and conversion against Willie Faye.   The trial court denied the motion to amend and granted the motions to dismiss.   Donald appealed.

On appeal, the court reversed the trial court’s dismissal of the negligent infliction of emotional distress against WIllie Faye (it has a three-year SOL).   As for the intentional torts, Donald’s amended complaint added facts to justify why the SOL on those should be tolled.  Thus, the trial court’s denial of Donald’s motion to file an amended complaint (on the grounds it would be futile) is reversed and the trial court can decide the “time period or other limitations necessary for the filing of the first amended complaint.”  To the extent that the dismissal dismissed the other claims against Willie Faye, i.e. wrongful misappropriation of insurance funds, unjust enrichment, and civil conspiracy, that too is reversed.

As for the claims against Nationwide, the Court must first consider whether the trial court converted the motion to dismiss into a motion for summary judgment as claimed by Donald.  The answer to that is “no” because the documents (policy, declarations pages, etc.) submitted by Nationwide were all documents that were required to be appended to the complaint.  And, since the claims against Nationwide in the amended complaint would have been futile, the trial court did not err in denying Donald’s motion to dismiss vis-a-vis Nationwide.

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