Decisions – Miss.S.Ct. – July 17, 2014- updated

Ravenstein v. Ravensteinthis case deals with whether a parent’s duty to support his or her child can continue after the child reaches the age of majority where the child is incapable of supporting himself. The Court lets the chancellor’s decision requiring the father to do so stand based on an untimely challenge by the father. The Ravensteins had a child who was 7 when they divorced. The child, Ryan, suffers from severe medical conditions that left him mentally and physically handicapped. In the 1998 divorce, John was ordered to pay $1500 a month in child support as well as health and dental insurance. The order also noted that the Court would continue to require John to support Ryan for the rest of his life. In 2011, the mother, Elisha, filed a petition to appoint a conservator for Ryan. John asked that he be appointed a co-conservator. WHen Ryan turned 21, John stopped paying support but deposited the money into the Court registry. In a motion for relief from the court’s order, he argued that the order of lifetime support was void when entered. The chancellor consolidated the conservatorship with the support question and granted Elisha’s petition to be appointed conservator, denied John’s motion to be appointed co-conservator, and denied the motion for relief from the lifetime support order.

On appeal, the Miss. S. Ct agrees that John waited too late to file his 60(b) motion. The lifetime support order was not void since the court had subject matter of the parties and the subject matter. John did not offer proof of a material change that would warrant a modification of the support order. However, the chancellor did apply the wrong standard in determining the appointment of a conservator. She basically told John that for him to be appointed conservator, he would have to show a material change in circumstances adversely affecting the child (the standard for modifying custody). This part of the chancellor’s order was reversed since custody and conservatorships are not the same thing.

Myers v. State – Myers was convicted of the armed robbery of Gabriel Lewis, a truckdriver for J.B. Hunt. Myers confessed that he ran up to Lewis with a gun and demanded some money and got 4 or 5 dollars. Later he claimed he knew Lewis and that Lewis had given him $5 for some crack cocaine they smoked. At trial, Myers’ attorney notified the court and the DA that they had a witness in the courtroom who would testify that he had seen Myers and Lewis together before corroborating Myers’ second statement. The trial court excluded the witness because of a discovery violation. The Miss.S.Ct reversed because a defendant’s witness should be excluded for a discovery violation only where the violation was willful. (VERY SIMPLE RULE). The Court finds no violation of Myers’ right to speedy trial. Justice Dickinson dissents to this part joined by Kitchens, Chandler and King.

TBA discusses the speedy trial dissent here.

In the Matter of Inclusion in the City of Oxford annexation – The trial court granted the annexation petition that enlarged the borders of Oxford. The objectors claimed there were no persons living in the area and, thus, there were not 2/3 of the people signing a petition to be incorporated. The Court held that the lower court’s finding that the 2/3 requirement was satisfied as of the date the petition was filed was not without substantial evidence. Nor did the chancellor err in denying the Objectors’ motion to strike the supplemental record or order the Petitioners to pay for the supplemental record.

Lewis Entertainment, Inc. v. Bradypremises liability – Carl Brady fell and injured himself at Extreme SkateZone in Hattiesburg. Extreme SkateZone is a non entity owned by Lewis. It used to be owned by Oak Grove. Brady sued Oak Grove, Extreme Skate Zone and some John Does. The Brady’s process server tried to serve Oak Grove at the skating rink on the 220th day after the complaint was filed. The rink was closed but a woman outside the rink told the process server that Oak Grove had not owned the rink in years. 167 days after the complaint was served, the clerk gave notice that the case would be dismissed since no one had been served. 209 days after the complaint was filed the Bready’s process server delivered the summons for Oak Grove and Extreme to a manager at the rink. Lewis, the owner of the rink, moved to dismiss the complaint. The trial court denied the motion finding that the Brady’s multiple attempts to serve process on Oak Grove constituted good cause for the lack of service on Lewis. Lewis appeals and, not surprisingly wins because repeated attempts to serve a non owner is not good cause to allow extra time to serve the real owner who was never named. Because the SOL has run, the dismissal should be with prejudice. (Question – has anyone ever gotten a judgment against a skating rink for negligence and, if so, under what theory?)

J. Allen Derivaux v. The Miss. Barbar reinstatement petition – The Miss.S.Ct. dismisses the petition for reinstatement of J. Allen Derivaux, Jr., because it fails to comply with Miss. Rule of Discipline 12.7. Derivaux was suspended for a period of two years after which he could file for reinstatement. There are five requirements for a petition for reinstatement:

(1) state the cause or causes for suspension or disbarment; (2) give the name and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution; (4) show that he has the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to
be reinstated to the privilege of practicing law

Here, Derivaux failed to sufficiently state the cause of his suspension. He merely cites the rules and the cause numbers of his cases. He did not give the name and address of the persons who suffered a financial loss. He fails to address whether he has the moral character to practice law. Nor does he demonstrate he has the requisite legal education to be reinstated. For these reasons, the Court grants the Bar’s motion to dismiss.

Whitaker v. Stateagg. driving under the influence – Whitaker was sentenced to 25 years after being found guilty of agg. driving under the influence. Whitaker was driving a pick up at an excessive rate of speed that collided with an SUV. A witness estimated the truck’s speed at over 100 mph. Both drivers were unconscious. On appeal, he takes issue with a blood sample taken at the hospital that tested .18. There’s a chain of custody issue because there were two numbers assigned to the case: 603 and 607 forcing one of the officers to change the evidence label. Also, the state failed to preserve the blood sample because the policy is to throw it away after six months. The Court affirms. Justice Kitchens, joined by Dickinson and King, dissents finding that the failure to preserve the blood evidence violated his fundamental right to due process.

And there was this ruling in No. 2013-CA-00171:
Meadowbrook Health and Rehab, LLC v. Queen City Nursing Center, Inc., Community Living Centers, LLC d/b/a Meridian Community Living Center and Beverly Enterprises-Mississippi, Inc. d/b/a Golden Living Center-Meridian; Hinds Chancery Court 1st District; LC Case #: G2010-299-T/1; Ruling Date: 11/19/2012; Ruling Judge: J. Thomas; Disposition: Four of the justices of this Court are of the opinion that the judgment of the Hinds County Chancery Court, First Judicial District should be affirmed, and four are of the opinion that it should be reversed. Accordingly as the judgment of the Hinds County Chancery Court, First Judicial District has not been decided to be erroneous by a majority of the justices sitting in this case, we affirm, without opinion, the judgment of the Chancellor. We do not, by affirming without opinion in this particular case, establish a precedent that all cases in this procedural position will be affirmed without opinion. Appellant is taxed with costs of appeal. Agree: Dickinson and Randolph, P.JJ., Lamar, Chandler, Pierce and Coleman, JJ. Disagree: Kitchens and King, JJ. Not Participating. Waller, C.J. Chandler, J., for the Court. Order entered.

And this Order in the continuing saga of Michael Winfield (Cause No. 2013-IA-00181)
Vicksburg Healthcare, LLC d/b/a River Region Health System v. Clara Dees; Warren Circuit Court; LC Case #: 10,0151-CI; Ruling Date: 01/22/2013; Ruling Judge: Isadore Patrick, Jr.; Disposition: Attorney Michael E. Winfield shall appear before this Court on Thursday, July 24, 2014, at 10:00 a.m. and show cause, if any he can, why he should not be held in contempt for failing to pay timely to the Clerk of this Court the sanctions imposed in the May 2 order. Winfield shall file a response to Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt on or before July 14, 2014. Counsel for Vicksburg Healthcare shall appear at the show-cause hearing on Thursday, July 24, 2014, at 10:00 a.m. and present Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt. Winfield is hereby given notice that a finding of contempt could result in one or more of the following: (1) having the Appellee’s Brief struck; (2) entry of a judgment in favor of Vicksburg Healthcare; (3) an order that he pay the entire $2,586 in attorney’s fees incurred by Vicksburg Healthcare; (4) suspension or disbarment; or (5) incarceration until Winfield purges himself of contempt. A copy of this order shall be forwarded to Winfield’s client, Clara Dees, at the mailing address provided by Winfield to the Clerk of this Court. Order entered.

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