Decisions – Miss.S.Ct. – May 15, 2014

Misita v. Conn – The Wilsons and the Misitas were neighbors in Natchez. In 2007, the Wilsons sold 3 acres of their land to the Misitas. The warranty deed contained a covenant prohibiting the building of any structures on the property. The Wilsons later sold their land to the Conns. Shortly thereafter, Misita placed a movable advertisement sign for his metal and woodworking business (that he conducted on the property) on the three acres. The Conns objected to the placement of the sign, and sought enforcement of the warranty deed’s covenant which the chancellor granted. On appeal, Misita argued the covenant was personal and not real. The Ct. of Appeals found it to be real. Misista also argued that the covenant was too unreasonable to be enforceable. The Court held that it was not unreasonable since it applied only to the three acres and did not prohibit Misita from erecting structures on his other land. The Miss. S. Ct. grants cert. and reverses in [art and affirms in part finding that the chancellor’s determination that the covenant ran with the land based on the nature of the covenant was not unreasonable. The Court, unlike the Ct. of Appeals, finds that Misita’s “sign” is a structure.

Conner v. State –  this case is on cert from the Court of Appeals ( Ct. of App. opinion)     Conner was convicted of burglary and felony fleeing and sentenced to life without parole.  The Ms. S. Ct. granted cert. on the issues including 1) whether the evidence was sufficient for felony fleeing where officer could not identify defendant as the man in the fleeing vehicle; 2) whether it was error not to instruct on the elements of larceny where the charge was burglary with the intent to commit larceny; 3) and whether the information was sufficient to prove that Conner was an habitual (apparently there is some issue as to whether the pen pack was made part of the record).  The Miss.S.Ct. affirms.

Gaienne v. McMillin –  child support – Issues include whether a PSA that requires the parties to pay “any other expenses related to daycare or school” requires ex-wife to pay half of private school tuition. Warren Co. Chancellor said “yes.”   Miss. S. Ct. says “no.”  The absence of any reference to private school or private-school tuition in provision three controls the issue.”  

Freese v. Mitchell – arbitration agreement – this case centers around a contract among lawyers representing PCB mass tort plaintiffs.  Residents of Copiah County claimed to have been injured by the release of toxins from a Crystal Springs manufacturing plant.  Don Mitchell entered into a joint venture agreement with Sweet & Freese to pursue these claims.  The JVA did not contain an arbitration agreement but did specify the allocation of work responsibilities, costs, expenses, fees, etc.  The JVA applied to all cases referred by Mitchell.  Meanwhile the law firm of McHugh Fuller was being retained by PCB plaintiffs.   Fuller contacted Mitchell about referring the cases to him. An arrangement was made (although not in writing).  Mitchell took the cases and then referred those cases to the Joint Venture with Sweet and Freese.  
To the surprise of no one (you know what they say about scorpions in the bottle), Sweet and Freese split and formed their own firms.  Although not done formally, Freese and Goss substituted for Sweet and Freese in the Joint Venture.   By 2008 the Jt. Venture had 3,300 clients but terminated approximately 3000 of them.  This left 348 clients most of whom were referred by Mitchell.   The firms filed one federal and two state lawsuits.  As settlement discussions ensued, one defendant indicated it wanted releases from ALL of the clients including the 3000 who had been terminated.   Freese and Goss and Mitchell began resigning those clients (known as the unfiled  clients because they were never named in any of the lawsuits).    Each unfiled client signed a new representation agreement containing an arbitration agreement.
In 2010, the filed clients reached a settlement with defendant DW. Two months later the filed and unfiled clients reached a settlement with defendant BW.   The settlement agreement contained an arbitration clause. In 2011, Mitchell disputed his portion of the attorneys fees.    Mitchell files suit against Freese and Goss.   Freese and Goss filed a motion to compel arbitration.  The court denied the motion.   In 2012, McHugh Fuller filed suit against Freese and Goss asking for its ten percent referral payment for each case it referred.   Freese and Goss filed a motion to arbitrate which too was denied.  Both cases were stayed while an appeal was taken to the Miss.S.Ct.  The Miss.S.Ct. affirmes the denial of arbitration finding, among other things, that there is no evidence that the parties to the retainer agreements intended for internal disputes to be handled via arbitration.   
Christmas v. Exxon aka the Alligator  case –  The Christmases own property adjacent to property owned by Exxon. They allege that their property has been overrun with alligators coming from Exxon’s land. Exxon’s land is used for refinery waste and alligators were brought in to serve as the proverbial canaries in the coal mine. Exxon was granted summary jud gment on the alligator contamination claim based on the SOL and the “prior trespass” doctrine. (Under the doctrine of prior trespass, the deed to land does not implicitly convey any right of action for trespasses or property damage that occurred prior to the transaction”; assignment of the cause of action to the purchaser must be express”). The Christmases appealed. The Court of Appeals reversed on the grounds that there was a material factual dispute as to when the Christmases should have learned of the damage via alligator. “Whether an injury to real property is reasonably discoverable depends not only on the nature of the injury, but the character of the property and the uses to which it is put,” the Ct. of Appeals stated. Exxon filed for certiorari which the Mississippi Supreme Court granted. The State Dep’t of Wildlife Fisheries and Parks has filed an amicus brief arguing that private parties have no right to sue. That it has the sole authority over the “regulation, management and protection of wildlife and in particular wild alligators.” 
The Miss. S. Ct. affirms the judgment of the trial court granting summary judgment for Exxon but on different grounds that no one briefed – that wild alligators cannot constitute a nuisance. 
The Christmases’ wild-alligator nuisance claim is a case of first impression in Mississippi.  However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession.  See Sickman v. United States, 184 F.2d 616, 618 (7th Cir. 1950) (stating a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature); Roberts v. Brewer, 276 So.2d 574, 582 (Ala. 1973).  We agree.


3 thoughts on “Decisions – Miss.S.Ct. – May 15, 2014

  1. I confess to some amusement at imagining one of our MSSC justices’ being in the Christmases’ shoes, and having a cross-fence chat with their neighbor Exxon, in which Mr. Exxon says “now anyways, how do you even know them gators is the descendants of them gators what we had startin’ out?” Hard to imagine the response’s being “well, ya got me there.”

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