Decisions – Miss.Ct. of App. – Sept. 9, 2014 – part one

Lang v. Beasley – Teresa Beasley was a manicurist who rented space in The Suntan Deport,  a salon owned by Robert and Beverly Lang. After Lang sexually assaulted her, Beasley refused to work in the salon any more and sued  the Langs for conversion and the sexual assault.  “Lang largely refused to participate in the litigation, claiming he was never served with process. He was sanctioned repeatedly for this strategy and ultimately had a default judgment entered against him, though Beverly Lang did put on a defense. Beasley was awarded a total of $138,000 in compensatory damages and
$245,000 in punitive damages. The Langs appeal, and we affirm.”

Holman v. StatePCR conflict of interest – Holman was convicted of armed robbery.  He filed a pcr petition alleging that his attorney had conspired with his codefendant.  The Miss.S.Ct. allowed Holman to proceed with a hearing in the trial court which he lost and he now appeals. Holman’s trial attorney was Richard Carter III, a  part-time public defender trying his first felony.  The codefendant, Dotson, who took a deal and testified against Holman, was represented by the more experienced part time p.d.  Rosalind Jordan.  “Holman alleged in his PCR motion that Jordan assisted Carter in the trial and that Carter had relied on her advice, to Holman’s detriment. Holman contended that both Dotson and Jordan had it in for him; allegedly, Dotson had called Holman a snitch and delighted in his prosecution, and a witness claimed to have overheard Jordan say she wanted to see Holman convicted.”   At the hearing, Jordan admitted to being in court for part of the trial but merely “exchanged pleasantries” with Carter.  “Holman testified that he personally witnessed Carter taking direction from Jordan about his case during jury selection. Another witness, Hap Anderson, testified that he saw Carter and Jordan speaking and that Carter had told him Jordan helped with the jury selection. The affidavit of a third witness, Mike Hutchison, was admitted into evidence. Hutchinson, a former sheriff, stated that Carter had declined his offer to help pick the jury. Instead, he observed Carter and Jordan reviewing the jury lists, and there was “no mistaking” that they were collaborating on jury selection.”  The trial court rejected the testimony of Anderson and Hutchinson since both here both friends of Holman and found against Holman on the merits.  The Court of Appeals affirms.

Aaron v. Aarondivorce, payment of retirement funds – when the parties divorced in 2002, the court awarded Annie half of her husband’s retirement.  George retired from the Amory Police Department in 2011. “In his motion to dismiss, George claimed that it was Annie’s responsibility to transfer the funds through a QDRO; he also claimed he had done nothing to prevent Annie from doing so.”   The chancellor was not terribly taken with George’s argument.  He calculated the amount owed by dividing the years of marriage (11) by the total years of accumulated retirement (20) to determine that fifty-five percent of the benefits were acquired during the marriage. He then divided that amount by two whereupon he determined that Annie was entitled to 27.5% of George’s monthly check of $1629.09.  He also “determined that George owed Annie $8,512 at the rate of three percent per annum for the amount of unpaid retirement funds from August 2011 to February 2013. As a result, the chancellor ruled that George would pay an additional $100 each month in addition to the $448 until the unpaid amount with interest was paid in full. The chancellor did not find George in contempt.” On appeal, George loses.  

Davis v. StatePCR – In 2008, Davis entered an Alford plea to capital murder to avoid the death penalty.  He was sentenced to lwop.  In 2009, Davis  hired an attorney and filed a pcr motion containing almost every possible reason for finding a plea invalid.  Even though the petition failed to have Davis’ affidavit attached, the trial court addressed the merits of the petition and denied relief.  Davis sought an out of time appeal  which was denied.   In 2013, he filed a petition with the circuit court asking it to vacate its previous order and allow him to file another pcr petition.  The court denied relief and Davis appeals.  The Court of Appeals affirms.

Abrams v. Republic Finance – Abrams was sued over a delinquent loan. The court granted summary judgment for the lender.  Abrams appeals.  When the lender filed suit, it filed suit over the wrong loan (Abrams had two).  When Abrams responded to summary judgment, the lender realized its mistake and, with the court’s permission, amended the complaint and again filed for summary judgment. Abrams filed the same affidavit she did before  denying any memory of having signed the note attached to the original complaint.    The court granted summary judgment for Republic Finance. On appeal, Abrams complains that the lender’s affidavit was not based on personal knowledge.  The court also finds that her response to summary judgment was insufficient to raise a genuine issue of material fact.   

Elray Jones v. MEA, et alwrongful death/ med mal/absence of expert testimony  – 81 year old Shirley Jones suffered from high blood pressure.  She was first prescribed physical therapy but when the condition became life-threatening, her MEA doctor prescribed medication.  Jones had an adverse reaction and was hospitalized at St Dominic.   A doctor noted in her file that she might need a pacemaker and might need a stress test at some time.   Jones was discharged from the hospital.  SIx weeks later she had a heart attack.  Another hospital inserted a stent.  A few days after she was discharged, she was having trouble breathing and the family took her to the Jackson Heart Clinic.  The clinic sent her back to St. Dominic where doctors determined her heart was failing. They discussed a pacemaker but before anything was done, she suffered another heart attack and died. 

Her husband sued MEA, St. Dominic and the Jackson Heart Clinic.  He had his daughter, Myra, a self proclaimed doctor of naturopathic medicine,  draft the pro se complaint.  When the defendants moved for summary judgment, Myra insisted her affidavit was sufficient to defeat summary judgment. The court granted summary judgment for the defendants.  Elray then hired an attorney who filed a motion to continue, etc. and begged the court for time to retain an expert.  The court denied the motion.  Elray appeals arguing that Myra was entitled to testify under the layman’s exception and the court erred in not giving him time to get an expert after granting summary judgment. The Miss.Ct. of Appeals affirms.  

Dedeaux and Guymon v. Lake Caroline Homeowner’s Assoc.premises liability –    In the summary of 2011, Lake Caroline residents Dedeaux and Guymon were on Guymon’s pontoon boat when a neighbor crashed his speed boat into them.  Dedeaux and Guymon sued the Homeowner’s Assoc. claiming they were partly responsible.  The trial court granted summary judgment. The Court of APpeals affirms holding: 

But the neighborhood association was not the insurer of Dedeaux and Guymon’s safety and cannot be held strictly liable simply because an injury occurred on the lake. Instead, the association only had a duty to protect Dedeaux and Guymon from reasonably foreseeable injuries at the hand of a third party.

 

To be reasonably foreseeable, the association must have had “cause to anticipate” Owen’s actions because Owen had a specific history of careless boating or because the lake had a general history of negligence among its boaters. Here, Dedeaux and Guymon failed to present any evidence of either. While they point to another boat wreck that occurred on the lake six years before theirs, considering the lake had more than 700 registered boats, we find this single incident, removed in time, was not enough to establish the incident with Owen was reasonably foreseeable.

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