Decisions – Ct. of App. – June 17, 2014

Owens v. Owens –  termination of parental rights – Brandi and Jordan Owens were married for six years when they divorced in 2008. They had two kids.  The divorce degree granted them joint physical custody with no child support.  From the beginning, neither party complied with the visitation agreement.  Brandi claimed it was because Jordan refused to let her see the children; Jordan says she refused to exercise her visitation.   In November 2009, Jordan filed to modify the visitation agreement arguing that Brandi had only seen the kids three times in the last six months and that she habitually abused drugs.  Temporary orders followed restricting Brandi’s visitation.  Eventually, a temporary order granted custody to Jordan and ordered Brandi to pay child support.   Eventually, Jordan filed to terminate Brandi’s parental rights. At a hearing that Brandi did not attend, the chancellor  ordered Brandi to get in patent drug treatment.   Five months later there was another hearing.  Again, Brandi was absent.  The chancellor terminated her parental rights.  She appeals. The Court of Appeals affirms holding that the chancellor  found that Brandi was  a drug addict unlikely to change, had failed to comply with court orders to get help, and did not visit her kids or contact for at least one year. 

Williams v. State –  Robert Williams led police on a 14 mile chase through the Jackson suburbs after he and his girlfriend were caught trying to steal two carts worth of food from the County Line Kroger (idiots, that store is too slow to let that go by unnoticed) that ended when he ran a red light and crashed into another driver, Milinda Clark. Williams was charged with evasion causing death.   On appeal he argues that the evasion statute is unconstitutionally vague and sufficiency of the evidence.  The Court affirms  his conviction and sentence as an habitual to 40 years without parole. 

Thompson v. A&Z, Inc. – Thompson was involved in a motor vehicle accident with another car driven by Vickie Cunningham.  Thompson sued Cunningham and her employer A&Z, Inc.  The court granted summary judgment to A&Z on the grounds that Cunningham was not in the course and scope of her employment when the accident happened; she was only driving to work.  Thompson appealed  claiming that his lawsuit was not based on the fact she was working at the time but that her truck was full of paint thinner and she was on her way to work when the accident happened and, thus, that this should count as her acting within the course and scope.   The Court holds that even if this were true, when he released Cunningham  (after settling for $25,000), the scope of the release was so large as to release any claims he may have had against her employer.  

Miller v. Provident Advertising and Marketing – This is, of all things, an alienation of affection case involving Hooters with lots of civil procedure issues.  Miller and John Daly were married in 2001 and divorced in 2010,  A year later, Miller filed a lawsuit in  DeSoto County Circuit Court against Anna Cladakis alleging alienation of affection and intentional infliction of emotional distress. She sued Cladakis’ employer, Hooters, alleging that  the various Hooters entities knew that Anna was having inappropriate contact with John and were negligent in their supervision, training, retention and hiring of Anna.  Miller, without noticing the defendants,  filed two subpoenas d.t. seeking phone and text messages between John and Anna. Miller filed another subpoena d.t. seeking privileged information from John’s attorneys.  Anna filed a motion to quash.  Miller responded that the motion to quash should be stricken because it contained the names of two attorneys not licensed in Mississippi or admitted pro hac.  

On March 31, 2011, Anna removed the case to federal court.  The district court remanded because all the defendants failed to consent to the removal within 30 days.  Back in state court, Hooters of America (HOA) filed a motion to dismiss based on a lack of personal jurisdiction.   HOA is a Georgia Corp. with headquarters in Georgia.   “The filing indicates that HOA was the owner of a security system placed at 682 Goodman Road in Horn Lake, Mississippi.”   There’s  also, apparently,  a Hooters in Horn Lake.  Anna also argued to be dismissed based on a lack of personal jurisdiction. EVentually the trial court dismissed all of the defendants on the lack of personal jurisdiction.  The court held that while Mississippi’s long arm statute applied for Miller’s allegations that the defendants committed a tort in whole or in part in Mississippi, Miller did not establish sufficient minimum contacts to satisfy due process.  The  court also denied MIller’s motion to amend her complaint.  On Anna’s motion, the court awarded her attorneys fees and costs in the amount of $78,000 under the Litigation Accountability Act because Miller had no hope of succeeding in a case for alienation of affections in which none of the parties were residents of the state of Mississippi and none of the states where the parties reside recognize the tort.  

On appeal:   The Court begins by noting that Miller is a resident of Tenn. as is John.  Anna was a resident of Florida temporarily in DeSoto County Mississippi during the alleged improper conduct.  Her alleged employers are nonresident defendants.  

Despite the defendants’ allegations that there is no long-arm jurisdiction because the injury did not occur on Mississippi, the trial court concluded that the complaint states a cause of action for a tort committed in Mississippi.  We agree.

The sexual activity is alleged to have occurred in Mississippi.  This constituted a tort committed, at least in part, in Mississippi, and satisfies the long arm statute.  The Court eventually concludes that Mississippi had specific jurisdiction over Anna for the tort of alienation of affection. (and it throws out the award of attorneys fees finding that attorneys fees should not have been rewarded even if it had affirmed the dismissal of Anna). 

As for the Hooters defendants, HOA is a Georgia corp. with is principal place of business in Mississippi and does not do any business in Mississippi except for a security system placed at 682 Goodman Rd.   While HOA may have been doing some business in Mississippi, Miller does not challenge the affidavit from HOA that it did not employ Anna.  

Hooters is a Florida corp. doing business in Florida that does not do business in Mississippi. It, too, never employed or paid Anna.

Provident, a Florida corporation,  paid Anna to do marketing for it but only to do marketing for it in Florida, not Mississippi. 

For these reasons, the dismissal of the Hooters defendants is affirmed.

Civil Procedure issue – the trial court’s jurisdiction following remand: Miller argues that the trial court lacked jurisdiction to hear the motions to dismiss because they were filed prior to  the federal court’s mailing the trial court a certified copy of the order remanding the case.  The case was removed March 31, 2012.  The federal court issued an order remanding the case on Feb. 6, 2012 which was entered on Feb. 7 and mailed on Feb. 16 (I have filed a motion to reconsider an order of remand before and I believe that is why the court would have waited ten days).  HOA filed its motion to dismiss in the trial court on Feb. 15.  The other Hooter entites filed their motions to dismiss on Feb. 16.  Miller argues that federal cases state that the federal court is not divested of jurisdiction until the remand order in certified and mailed. However that may be, Miller cites no authority that the state court cannot proceed until the federal court mails the order.  For this reason, this issue is without merit. 

In the Matter of the Dissolution of the Marriage of James and Melanie Hanlin
James and Melanie were divorced in 2007. James was to “maintain in full force and effect the insurance benefits that are allowable by statute to the divorced spouse of a retired military person.” The next year she had surgery for a frozen shoulder. The insurer that had covered her before the divorce refused to pay. Meanwhile, in 2012, James moved to enforce the terms of the property settlement that required Melanie to refinance or sell the house. Melanie counterclaimed on the health coverage issue, a remaining credit card bill, and the failure to pay a previously awarded $2900. James then moved to dismiss his petition. The chancellor entered an order finding that James had been required to pay for health insurance and ordered the parties to negotiate a settlement with Melanie’s healthcare provider within ten days and that both parties would be equally responsible for paying the settlement judgment within 120 days. The court also ordered James to pay the credit card bill within 120 days and to pay Melanie the $2900 in 240 days. The Court of Appeals affirms.

Krueger v. StateDUI first – Krueger and his wife spent the day at the lake at Coal Bluff State Park. On the way home they were stopped at a safety checkpoint set up at the park. An officer claimed he smelled alcohol on Krueger’s breath and asked how much he had had to drink. Krueger foregoes the usual answer (two drinks) and states “four or five beers with the last one being about thirty minutes ago.” Kruger was given some field sobriety tests. He failed some and passed others. Law enforcement testified that he failed the portable breath test. Krueger claimed it was never offered. He then refused the breathalyzer. He was found guilty of common law DUI and appeals. The Court of Appeals affirms.

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