Decisions – Miss.S.Ct. – May 22, 2014

(Sorry these are late.  I was trying to file a brief with the Miss.S.Ct. and since my computer died last week and I had to buy a new one, turns out I had to download stuff to make my scanner work, to convert word docs to pdf,  etc., etc. . . . . . .  It would have been easier to schlep some hard copies up there).

Bonds v. State – deliberate design presumption – Bonds was accused of killing his coworker  Seabron after Seabron gave him a ride home.  Seabron’s body was found several days later; he had been shot in the head. Bonds initially denied having anything to do with Seabron’s death but later gave several stories the last one being that Seaborn had said he was going to show him something and then pointed a gun at Bonds’ head.  They struggled for the gun and it went off.   Bonds raised two issues on appeal  – gruesome photos, and the giving of an instruction that deadly design can be presumed from the use of a deadly weapon.   The instruction stated  “If death is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, then malice may be inferred from the use of the weapon.” Bonds contends that this instruction was in conflict with jury instruction 17, which states, in pertinent part: “The [circuit c]ourt [instructs] the jury that ‘Manslaughter’ is ‘the killing of a human being, without malice or deliberate design in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon without authority of law, and not in necessary self-defense.” Bonds alleges that the reading of jury instruction 17 with jury 1instruction 9 left the jury confused and with no other option but to find Bonds guilty of murder since malice may be inferred by the use of a deadly weapon.” Bonds, ¶ 15.  The Ms. S. Ct. granted cert.  and reverses on the gruesome photos of the deceased featuring maggots.   The only case in which the court had previously reversed for gruesome photos was McNeal v. State, 551 So.2d 151 (Miss. 1989)  which also featured maggots.  Court also chastises AG’s office for filing crappy brief. 

In the Matter of the Estate of St. Martin –  Forbes was injured in a gas station explosion. A Louisiana attorney traveled to Mississippi to sign Forbes as a client. Forbes was in a coma so St. Martin advanced his wife $700 and had her sign the contract. St. Martin then associated a Mississippi firm to file the suit. The suit settled for $13.5 million and the firms split $4.6 million. Prior to the settlement, St. Martin advanced the Forbes some $100,000 in expenses and vacations. Forbes filed suit against St Martin alleging that improper conduct voided the contract of employment and St. Martin was not entitled to any fees. The Harrison County Chancery Cout granted summary judgment to St. Martin on all claims. The Court of Appeals reversed finding there were sufficient factual issues as to 1) whether the cash advances were sufficient to vitiate the contract (apparently the cash advances were ok in Louisiana); 2) whether St. Martin was engaged in the unauthorized practice of law and whether this invalidated the contract; and 3) whether legal malpractice, breach of fiduciary duties in signing up a client in a coma (and later heavily medicated) voided the contract. On cert., the Mississippi S. Ct. reverses the Ct of App. and reinstates the Circuit Court’s judgment.  First of all, it is undisputed that Forbes was satisfied with the settlement and thought St Martin did a great job so there was no breach of the duty of care.  And while there were certain provisions in the contract between Forbes and St Martin (incl. one that would have allowed Forbes to fire St Martin for negligent handling of the case), none of these provisions became an issue in the case.  And while Forbes was in a coma when his wife signed with St Martin,  he ratified the contract when he regained his mental and physical abilities and did continued to have St. Martin represent him.     As far as the cash advances, the mere breach of the ethical rules does not give rise to a cause of action.   Nor would this void the contract.   And while Forbes complains that St Martin failed to fully disclose the difference between a quantum meruit fee and a contingency fee, this is belied by the record.  Finally – as far as the charge that St. Martin was engaged in the unauthorized practice of law, St. Martin’s actions took place prior to the court’s clarification of what constitutes an attorney’s making an appearance  in a case in In re Williamson, 838 So.2d 226 (Miss. 2002).  

 

Hospital M.D. v. Larry is an interloc. out of Yazoo County. Larry was a student at USM who got a flu shot at the USM clinic. She started having problems and was brought to Kings Daughters Hospital in Yazoo City where she was treated and released. The next day she was taken by her mother to UMMC where she was diagnosed with a MRSA infection. She stayed there for three weeks and ended up blind in one eye. Seeking to sue Kings Daughter, the plaintiff sent notice of claim letters to Kings Daughter and the doctor who treated her there. As it turned out, that doctor was an employee of HospitalMD, LLC, which contracted with Kings Daughter to provide emergency care. By the time the plaintiff learned of this and sent a presuit notice to HospitalMD and amended the lawsuit to add it, the time for sending notice and the SOL had run. The trial court denied summary judgment on these issues and the Miss. S. Ct. granted HospitalMD’s interlocutory appeal. Plaintiff is arguing that the SOL should not have run before she discovered that the doctor was not employed by the hospital where he was working. The Miss.S.Ct finds that the trial court should have granted summary judgment to Hospital MD based on the running of the statute of limitations.

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