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

Natchez-Adams School Dist. v. Bruce tort claims act/premises liability –  Bruce was delivering a resume to the headquarters of the Natchez-Adams School District when she tripped over a piece of conduit protruding from the driveway.  Since the school is a gov. entity, there was a bench trial after which the court awarded her damages of $488,000 (she had spinal surgery and now walks with a cane).  The school district argued both below and on appeal that “it was entitled to immunity under the discretionary-function-exemption and the dangerous-condition-exemption provisions of the MTCA.” The Court of Appeals affirms.  

In a recent opinion, the Mississippi Supreme Court significantly changed the manner in which we are to analyze questions regarding the discretionary-function exemption to the MTCA. Overruling nine prior decisions, the supreme court held that “[i]t is the function of a governmental entity – not the acts performed in order to achieve that function – to which immunity does or does not ascribe under the MTCA.” Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (¶10) (Miss. 2013).

 “Following Little, we find that because NASD has a statutory duty to repair a school facility, all acts in furtherance of that duty are ministerial. Furthermore, the repair of improperly protruding conduit that poses a safety hazard necessarily involves the repair of a school facility.”

Detrick Harris v. Statefelon in possession –  Harris was convicted in Hinds Co. of  burglary of a dwelling,armed robbery, automobile theft, and possession of a weapon by a convicted felon all involving his hold up of Clyde Rogers using a kitchen steak knife. He was sentenced as an habitual  to four consecutive life sentences without eligibility for parole. On appeal, the Court upholds the armed robbery conviction but reverses the felon in possession conviction finding that the kitchen knife was a sufficient weapon for a finding of armed robbery; it was not a weapon for purposes of felon in possession.  

In the matter of the Last Will and Estate of Herman Bowlingwill contest/ undue influence –  Paula and Mark Bowling fought over their grandmother’s estate.  As soon as   that was over, their father died and they litigated their father’s estate.  Paula sought to show that her father’s will was the result of a confidential relationship between her brother Mark and their father Herman. The trial court found a confidential relationship but did not find sufficient evidence of undue influence that would require setting aside the will. “Paula also had to show either attendant suspicious circumstances or that her brother was somehow involved in making his father’s will. And Paula showed neither. So we find the will contest was properly dismissed.”

Jones v. State PCR – In 2010, Jones pleaded guilty to possession of cocaine with the intent to distribute, felony eluding a law-enforcement officer, and felony child endangerment (he was indicted in 2006). In 2012, he filed a pcr petition asking to clarify his sentence as ell as vacate it because there was an insufficient factual basis. He claims he should receive credit for four years he served in Texas on unrelated charges before he entered his guilty plea in Mississippi.  As for that issue, the Court of Appeals states: “while it is true that the circuit court ordered that Jones’s sentences in the current case be run concurrently with each other and with Jones’s sentences in Franklin, Texas, there is absolutely no mention in the record by Jones’s counsel, the assistant district attorney, or the trial judge that the plea agreement provided that Jones would receive credit on his Mississippi sentences for any time he previously served in Texas.”  As for the factual basis:  the trial court read the indictment to Jones.  He indicated he understood the charges and even apologized for committing the crimes. 

Prendergast et al v. the City of Waveland –  civil service appeal/bill of exceptions – The Waveland Board of Aldermen voted to fire four police officers for budget reasons.  The officers attempted to appeal to the Waveland Civil Service Commission (created by city ordinance).  When the Commission failed to respond to their requests for a hearing date, the officers filed a petition for mandamus with the court but dismissed it a year later.  They then filed a second petition for mandamus. The City argued that the ordinance creating the civil service commission did not allow appeals for firings for budgetary reasons (the officers argued that they were not fired for budgetary reasons).  The City also argued that the officers should have filed a bill of exceptions.  The circuit court dismissed the petition on the grounds that the officers had an adequate remedy at law (bill of exceptions).  The court also dismissed t he city’s request for damages under the Mississippi Litigation Accountability Act (prohibiting frivolous litigation).   

On appeal the court notes that the procedures for appealing to the Waveland Civil Service Commission are not statutory.Then “How does a discharged employee raise an argument that although the Board’s minutes reflect that his discharge was for budgetary reasons, the Board’s decision was really a pretext to terminate him for factors related to the performance of his job? We find that under such circumstances, an aggrieved employee must appeal the Board’s decision through the mechanism set forth in Mississippi Code Annotated section 11-51-75.”  The Court decries the Commission’s failure to address the officers’ grievance.   However, the proper way to appeal would have been by way of a bill of exceptions.  On cross appeal the Court affirms the denial of costs.  The City never cited any authority for their position and, thus,  it is procedurally barred. 

 

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