Decisions – Miss.S.Ct. – April 10, 2014

MDEQ v. Bell Utilities –  The former owner of the Black Creek Wastewater Treatment plant (Black Creek is located in the DeSoto National Forest) had been fined for illegal discharges into the Black Creek. Bell purchased the facility in 2004 and made improvements. However, when it later sold the facility to Utility One in 2010, the MDEQ Permit Board refused to transfer the permit claiming that Bell had had continuing compliance problems. Bell appealed to the Forest County Chancery Court arguing that 1) the Admin. Proc. Act (MCA Sect. 25-43-1.01 et seq.)requires the Board to promulgate hearing procedures for its formal evidentiary hearings 2) the failure to do so violated Bell’s right to due process, 3) the Board’s decision was arbitrary and not supported by substantial evidence and 4) the Board could not condition transfer of the permit upon payment by Bell of $20,000 to MDEQ. The chancellor found for Bell and MDEQ appealed.  The Miss.S.Ct.  holds that the Board’s demand of $20,000 from Utility One was beyond the Board’s powers and, thus, reverses and renders the Permit Board’s denial of the permit transfer.  It also holds that agencies are not required under the Admin. Proc. Act to promulgate rules and regulations for formal Permit Board hearings and vacates that portion of the trial court’s order requiring them to do so.   

Huseth v. Huseth –  Mike and Tavia married in 1998 and have one child born in 1999.  They separated in 2011 when Mike left and filed for an ID divorce.  Tavia did not want a divorce.  The chancellor ended up awarding Tavia separate maintenance of $3000 per month (out of which she was to pay the $2,248 mortgage)  and child support of $988 per month. SHe was also granted $25,000 in attorneys fees.   Mike appealed.   During the appeal, Mike filed a supplemental brief  regarding a recently decided case (Houston v. Houston, 121 So.3d 283 (Miss.App. 2013).  Tavia moved to strike it and the Court grants the motion to strike because the proper way to alert the court to supplemental authority is via a letter.  MRAP 28(k). 

The Court upholds the award of separate maintenance but reverses and remands the amount because the chancellor took into account income from a job that Mike had not had in two years and by calculating into Mike’s income substantial support from his parents but without offsetting that amount by legitimate expenses paid by that income.   “Mike is on the hook for more money than he has the ability to pay at present,” the Court notes.  The amount of child support was reversed for the same reason – it was calculated without taking into account Mike’s expenses in determining the amount of money Mike had available for support.  The $25,000 in attorneys fees is affirmed but the court denied Tavia’s request that she be awarded $12,500 for attorneys fees for the appeal.

 

Hubbard v. BancorpSouth  – This is a pro se appeal from a judgment on the pleadings of a debt owed on a second mortgage.  The Hubbard’s contended that the suit was barred by the one-year SOL set forth in MCA Sect. 15-1-23. The trial court held that the SOL was three years and granted judgment on the pleadings to the bank.  The Miss.S.Ct. affirms but finds that the SOL was 6 years pursuant to MCA Sect. 75-3-118 for suits on promissory notes for nonforeclosing lenders. 

Reith v.State –   Ex husband, using knife and wrench, kills wife during argument over custody.  Issues:  1) Ct. of Appeals finds that while it was error to give instruction that deliberate design could be presumed from the use of a deadly weapon, error was harmless in light of overwhelming evidence; 2) whether court erred in not allowing evidence of Reith’s mental state or victim’s pending criminal charges; 3) whether defense should have been allowed to put on psychologist to testify re: heat of passion, court held that this would invade the province of the jury.Court of Appeals opinion.  The Mississippi Supreme Court reverses finding that the giving of the deliberate design instruction was not harmless. 

Miss. Power Co. v. Miss. Public Service Commission and Bigger Pie Forum –  In 2009, Miss. Power filed documents with the MPSC relating to a certificate of public necessity.   Miss. Power asserted these documents were confidential.    In July 2012, Bigger Pie Forum made a public records request for three of these documents and the chancellor ordered that they be produced.  Miss. Power appealed.   Later Bigger Pie narrowed its request to documents regarding the long term natural gas price forecast and a forecast of the economic impact of pending federal legislation of greenhouse gas emissions. Bigger Pie contended that this information concerning Miss. Power’s choice of alternatives directly affected the rates it charged and, thus, should be disclosed under MCA Sect. 79-23-1(1).   Miss.  Power argued that this information did not affect rates and, even if it did, it consisted of trade secrets.  

 At some point after the briefing period, Bigger Pie filed a Motion to Dismiss based on its assertion that some of the information sought by it had been provided by Ms. Power or its parent to the Wall Street Journal. Bigger Pie moved to withdraw the motion after it realized that it had the WSJ information. The Ms. S. Ct., via an order to show cause, had Ms. Power file a response.

The Court holds that while the documents requested (and filed under seal) contained information similar in kind to the information published by the WSJ but the sealed documents contain various graphs and charts pertaining to natural gas price forecasting and CO2 cost assumptions.  It also agrees with Bigger Pie that this is not confidential information.  The Court ends up by affirming the judgment of the chancellor to the extent hat the it ordered disclosure of the January 2009 gas price forecasts and CO2 cost assumptions that are similar in kind to that published in the WSJ.  “However, we ramend this case to the Chancery Court of Hinds County to should [sic] consider the documents under seal and order that information pertaining to natural gas price forecasts and CO2 be produced by Mississippi Power.  Mississippi Power should not be compelled to produce documents which do not relate to natural gas price forecasts or CO2 costs assumptions.”  The court may appoint a special master if the court finds that the complexities of the documents are sufficiently exception to so warrant. 

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