Decisions – Miss.Sup.Ct. – August 21, 2014

Newberry v. State – Newberry was convicted of possession of marijuana and cocaine and DUI first and sentenced as an habitual.  The Miss.S.Ct reverses and remands because Newberry was represented at trial by a Tennessee attorney Gerald Green.  Green filed a pro hac application sponsored by Mississippi attorney Daniel O Lofton that claimed that Lofton had been engaged as local counsel.  However, Lofton was not at the trial.  Newberry hired a new attorney after the trial and the subject of Green’s representing Newberry without local counsel was taken up at the hearing on the motion for new trial.  On appeal, the Miss. S.Ct holds that the trial court erred in not requiring the presence of local counsel at trial.   Rule 46(b)(4)  was amended in 2003 to make this mandatory.    

Carpenter v. Kenneth Thompson Builderclaim splitting – This is a cert. grant. involving two cases seeking damages based on Carpenter’s having tripped on the sidewalk of the Jackson County Visitor’s Welcome Center in August 2007.  In the first, filed in June 2008, Carpenter sued MDOT and John Does 1-5. A year later the Court (Judge King Jackson) granted her motion to amend her complaint to add Mallette Brothers Construction and J.L. McCool  Contractors.  (Both contractors had worked on improvements to the Center). In March 2010, Carpenter moved to add more defendants -KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security.  The only defendant objecting to the motion was MDOT and Carpenter’s attorney claimed he tried and tried to get a hearing date on his motion to amend but that MDOT would agree to no date before the statute of limitations ran.     

   Thus, in July 2010, Carpenter filed a new complaint over the same incident but naming as defendants KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security.  This case was assigned to Judge Krebbs.  Two months later Carpenter filed a motion to consolidate the first and second cases.  Two months after that Judge King Jackson granted the motion to amend in Carpenter I. In Carpenter II, KTB filed a motion to dismiss based on Carpenter’s having split her cause of action and that consolidation should not be permitted because Carpenter should have sued KTB in Carpenter Iunder the doctrine of priority jurisdiction.  After having been added to Carpenter I, KTB filed a motion to dismiss in that case.  In June 2011, Judge King Jackson granted the motion to dismiss in Carpenter I based on the statute of limitations having expired before the new defendants had been served and that the relation-back doctrine did not apply. This ended up dismissing KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security. Judge King Jackson  certified the order as a final judgment.   She did not address the motion for consolidation or the claim regarding claim splitting.   A few days later, Judge Krebbs granted the motion to dismiss in Carpenter II based on improper claim splitting and priority jurisdiction. Carpenter appealed both judgments and the cases were consolidated for purposes of appeal. The Court of appeals reversed and remanded both cases to Judge King Jackson who was ordered to determine whether the statute of limitations had run.  

On cert. the Mississippi reverses the Miss.Ct. of Appeals.  First of all, the Court agreed with the trial court that Carpenter II violated the rule against claim splitting.   And since a final judgment as entered in Carpenter I before a final judgment was entered in Carpenter II, Carpenter II should also have been dismissed on res judicata grounds.  

Perkins v. Miss. Dept of Human Services –  In 2010, DHS conducted a hearing to determine whether Perkins had committed intentional violations of the Supplemental Nutrition Assistance Program (SNAP).  The hearing officer determined that Perkins should be disqualified from receiving benefits for a period of time.  Perkins appealed to the Circuit Court which found it did not have jurisdiction because there was no specific statutory authority giving her the right to appeal.  The Miss.S.Ct. reverses.  While it is true that there is no statutory mechanism  for an appeal,  where this is the case and there is no adequate remedy at law, the chancery court has jurisdiction.  The Court reverses and remands to the circuit court with instructions to  transfer the case to the Monroe County Chancery Court. 

Strait v. McPhail and American Heritage Life Insurance Co. – In 1987, Joseph Bagley purchased a cancer and dread disease policy issued by American Heritage and sold by  independent broker Jackie McPhail.  In 2008, Bagley was diagnosed with cancer.  He contacted McPhail to file a claim and change the beneficiary.  She told him she no longer wrote policies for the company but could service Bagley’s policy.  Bagley signed the necessary forms to change the beneficiaries to Michael and Betty Strait.  The change was not made though because McPhail was waiting to confirm the correct process for completing the change and the American Heritage office was closed because of Hurricane Fay.  Bagley passed away before the form could be completed.  The estate was probated in Hinds County and the money left after expenses went to William Kinstley, the residual beneficiary.   The money under the policy, $44,973.50,  passed through Bagley’s estate since the change of beneficiary had not been completed.   Later the Straits filed suit against McPhail and American Heritage.  The court found that the claim had been litigated in chancery and granted American Heritage’s motion for summary judgment.  On appeal, the Miss.Ct. of Appeals reversed and remanded the case finding that res judicata and collateral estoppel did not bar the Straits’ claims.  McPhail and American Heritage filed for cert. which was granted.  The Miss.Sc.Ct. finds that the Court of Appeals was correct.  Res judicata and collateral estoppel did not apply because the Straits were not named parties in the estate proceedings. 

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