Decisions – Miss.Ct.App. – July 15, 2014 – part 1

Turns out the Court’s break was perfectly timed to coincide with my food poisoning. Lucky me!

Bennett v. Highland Park Apartmentspremises liability – Bennett and her children were residing at Highland Park Apartments when they were the victims of a home invasion. The assailants were never caught. Two weeks later the Bennetts filed a premises liability complaint against the apartment complex. Judge Weill, as is his wont, granted summary judgment for the defendants. On appeal, the Court of Appeals reverses finding that the plaintiffs’ expert noted that there were 1000 calls for service at the complex within a five year period (several involving guns) and that reasonable jurors could have found that the lack of an armed security guard and a gate the was not in working condition were substantial factors in bringing about the harm to the plaintiffs. Plaintiffs also asked that Weill be recused but the Court finds that the request came too late.

Drummer v. State – Drummer was found guilty of two counts of grand larceny and one count of attempted grand larceny. Law enforcement attempted to stop Drummer when he ran a four-way stop. A chase ensued. When Drummer was caught, it was determined that the van, trailer and John Deere lawnmower he had been hauling were stolen from a Columbus business. It turned out that the place where the van had been stolen from had a truck that sustained damage from someone trying to steal it.
At trial, the prosecution produced for the first time photos of the damage done to the truck as well as to a gate on the property where the van had been stolen from and the truck tampered with. Drummer’s attorney was given a chance to look at the photos. He moved to exclude them but did not ask for a continuance or mistrial.
On appeal, Drummer argues that the jury should not have been given a flight instruction, the discovery violation, sufficiency of the evidence, and his conviction as a habitual offender. This last has to do with Drummer arguing that while he was convicted of separate offenses, the felony flight conviction he acquired in fleeing from law enforcement in this case was so intertwined with the convictions in this case, that the court should not have considered it as a separate predicate offense for the purpose of finding him an habitual. The Court of Appeals finds no issues of merit.

Williams v. State – Williams was convicted of failing to register as a sex offender and sentenced to three years. The case is reversed and the indictment dismissed because the indictment was insufficient. The indictment stated that Williams or or about September 4, 2012, failed to register or reregister as a sex offender in violation of MCA Sect. 45-33-33 (paraphrased). An examination of the statute, though, shows there are multiple ways the statute can be violated but the indictment here fails to specify how Williams failed to abide by the statute. In other words, between the indictment and the proof, it cannot be known whether Williams gave a false address, gave a correct address but failed to live there, or failed to appear at the Dept of Public Safety Drivers’ License Station to register or reregister.

The Charter Oak Fire Ins. Company v. BJ Enterprises of Miss. – Charter Oak filed suit to recover monies it paid out for a fire loss covered by its policy. The policy was for a building in Clinton that was owned and leased by a variety of companies. MCH (which managed the property) was the named insured. After there was a fire, Charters paid MCH over $250,000. this was not full compensation and Charter Oak and MCH agreed to jointly pursue the company, BJ Enterprises (which made pallets out of broken pallets) whose employees started the fire. At trial, the issue was whether Charter Oak waived its right to subrogation and the court gave this issue to the jury to decide.
The owner of the property, TranSource, signed a document assigning its rights of subrogation to MCHG. Six months later, TranSource, MCH, and Jackson Truck and Trailer signed a document waiving any rights of recovery against BJ. “Here the question is whether Charter Oak’s insurance policy gave MCH, or the Harrell-owned companies, the contractual right to waive subrogation.” While there was such a right in the contract, it contained several requirements. The only possible way that the waiver would apply was if BJ was a tenant of MCH. However, there was no evidence that BJ was a tenant of MCH. Given this fact, MCH did not have the right to waive Charter Oak’s right of subrogation against BJ. Therefore, the case is reversed and remanded.

5 thoughts on “Decisions – Miss.Ct.App. – July 15, 2014 – part 1

  1. I thought the dissent, particularly the multiple theories section, was well argued. That is a clever piece of legal writing.

    • Jane,
      To me, it seems like the type of case that could have been decided a number of different ways. Would love to hear if you think when you get to it.

  2. The premises case, Bennett, is notable because it cites the calls for service as evidence that the premises was violent. Defendants have been arguing against the use of calls for service (911 calls) because they aren’t proof that a crime was actually committed. The federal district court for the Southern District of Miss. has already addressed this in a well reasoned opinion.

    Hunt v. Mid S. Waffles, 2012 U.S. Dist. LEXIS 25841 (S. D. Miss. 2012).

    Defendant states that the only proof put forward by Hunt is a log of calls to the Hattiesburg [*16] Police for service to the premises of the Waffle House restaurant, which are summarized above. Defendant argues these call logs do not provide any proof whatsoever that any violent crime was committed at the Waffle House restaurant or even nearby because no incident reports or arrests reports have been produced. According to Defendant, the logs produced merely provide a list of calls for service to the premise and do not establish that any crime took place.

    On this motion, where the Court is required to view the evidence in the light most favorable to the non-moving party, the Court finds that Hunt’s evidence creates a genuine issue of fact regarding a pattern of criminal activity both in the “general vicinity” of and “on the premises” where he was injured. Further, not only is an issue as to an overall pattern of criminal activity apparent, but upon a closer examination of the evidence, Hunt has created a triable issue as to a specific pattern of violence which closely mirrors the circumstances which directly led to his injuries. Defendant is not entitled to summary judgment on the grounds of foreseeability.

    Hunt, 2012 U.S. Dist. LEXIS 25841** 15-16.

    The Bennett case adds to the plaintiffs’ arsenal for getting this type of evidence in.

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