Decisions – Miss.Ct. of App. – Sept. 16, 2014

Calonkey v. Amory School District –   tort claims act/open and obvious –   Calonkey was hired by Amory High School to  to assist with the set design of the school’s production of Phantom of the Opera.  The set included a metal catwalk with a
trap door that spanned the stage ten feet in the air.  At some point,  Calonkey was asked to adjust the light which required that he climb the catwalk (which he did not build).  Where the trap door should have had a door, there was just an opening. HE ended up falling ten feet to the stage.  He sued the Amory High School. The trial court granted summary judgment to the school on the grounds that the defect was open and obvious.  Alternatively, he stated that he could have granted it  because the school was immune pursuant to discretionary immunity. On appeal the Miss.Ct. of Appeals reverses. “[A]s the statute clearly states, the fact that a dangerous condition is obvious only exempts the District from liability for the failure to warn of the condition”  and Calonkey was not suing for failure to warn; he was suing for negligence. As far as discretionary function immunity, Little v. MDOT dictates that “courts must focus on the governmental function at issue—and ‘not the acts performed in order to achieve that function.'” Here, the school district is mandated to manage and take care of the school’s property. “Because Little holds that this mandated function includes “all acts” carrying out that duty, even when they involve choice or judgment, we must find that the acts of constructing and maintaining the theater set fall under that function and, thus, are not immune from Calonkey’s suit.”

Davis v. Miss. Dep’t of Employment Security –  appeal of unemployment decision –  Davis filed for unemployment benefits after being fired from the sales dep’t of Columbus Nissan.  The ALJ concluded that Davis wwas fired for misconduct and denied benefits.  That decision became final within 14 days unless Davis filed an appeal.  Davis filed an appeal one day after the decision became final.  His appeal was dismissed by the Board and the Circuit Court.  Davis appeals to the Miss. Court of Appeals where he addresses only his disagreement with the ALJ’s findings.  Since Davis fails to demonstrate good cause for complying with the 14 day deadline, the Court has no choice but to appeal.

Lane v. Lampkincorp. dissolution/breach of fiduciary duties –  Lampkin and Smith were 50/50 shareholders in a corporation that supplied rock. When Smith died, the corporation’s line of credit was terminated when Smith’s estate estate refused to extend a guarantee for the credit line.  Lampkin did what he could to wind up the business but started his own rock supply business.  The chancellor divvied up the corporation.  The estate appealed on the grounds that the chancellor erred in assessing damages for the estate given that Lampkin usurped a corporate opportunity in starting a new business. The Miss. Court of Appeals affirms agreeing with the chancellor that while Lamkpin usurped a corporate opportunity, he really had no choice when the estate refused to assist with extending the credit line by which the corporation operated.

Fuller v. Weidner –  termination of father’s rights; no contact for two years –  James and Rachel had a child named Remmy in 2009.  Their relationship ended when Remmy was 14 months old.    When Remmy was three, Rachel filed to terminate James’ rights and the chancellor did so.  On appeal, the Court affirms finding that the  evidence showed that at the time that the termination actions was filed James had no contact with Remmy for two years.  He only started paying child support when the termination action was filed.

Wylie v. Wyliedivorce/ alimony and attorneys fees –  Kimberly and James were married approximately 25 years when they divorced.  The chancellor awarded Kimberly rehabilitative alimony of $700 per month for three  years and $2500 in attorneys fees. She appeals arguing that the court erred in awarding her rehabilitative alimony instead of periodic alimony.  She also claims the attorneys fee award is too low.   The Court of Appeals affirms.  Rehabilitative alimony is awarded to help the spouse until he or she becomes self supporting.  Periodic alimony is a substitute for the support obligation.  “Based on the parties’ income at the time of the trial, their income cannot meet their expenses. This is often the difficult challenge for chancellors to resolve in the dissolution of a marriage. Hence, this is the reason that our law provides that a chancellor ‘enjoys wide discretion in fashioning the financial aspects of the dissolution of a marriage’ and will only be reversed on appeal if he abused that discretion.”

Miss. State Board of Medical Licensure v. Harronmedical license – The Miss. State Board of Medical Licensure disciplined Dr. Harron  for testimony he gave as a B reader interpreting lung x-rays in Texas asbestos cases. The Board ordered that Dr. Harron, who was retired, not be allowed to renew his license in Miss. and that the action would be reported to the National Practitioner Databank. Harron appealed and the circuit court reversed finding that  ruling that the Board had no jurisdiction,  that its ruling lacked substantial evidence, and that its notification to the physician’s data bank was arbitrary and capricious.  The Court of Appeals reverses and reinstates the Board’s findings.

Neilson v. Dawsondefamation – former FBI agent sued the authors of the Kings of Tort  (a book about Richard Scruggs) for defamation for stating that Neilson had lost the confidence of the United States Attorney investigating Scruggs.  He and his two assistants found Neilson to be untrustworthy.  One of the assistants, Tom Dawson, wrote the book with Alan Lange.  On summary judgment, Dawson produced affidavits from himself, the U.S. Attorney and the other assistant detailing  why they thought Neilson was untrustworthy. “Neilson, on the other hand, has produced no evidence in support of his claim.”  The circuit court granted summary judgment to the defendants but denied their motion for sanctions.  On appeal the Miss. Court of Appeals affirms summary judgment and also affirms the denial of sanctions.

Nelson v. Stateforfeiture –  Nelson was involved in drug trafficking.  The sheriff’s office served warrants on Nelson’s properties and seized property, some of which was used in the criminal prosecution and other property that was forfeited.  A summons was issued and when Nelson failed to answer, a default judgment as entered.  Almost two years later Nelson filed a petition for return of his property (including jewelry, a tv, and 108 compact discs). The trial court dismissed the petition and Nelson appeals arguing that the court lacked jurisdiction inasmuch as only the feds had jurisdiction.  The Court of Appeals affirms finding that the trial court did not abuse its discretion in finding that Nelson was not entitled to relief.

Dean v. State –   Dean was convicted of identity fraud.  When he was arrested for public intoxication, he gave police his brother’s name of Jeffrey Jenkins.  After being held in jail, Dean was released to a hospital where he signed the patient form with an illegible first name and the last name of Jenkins.  A month later, Jeffrey Jenkins learned that his flexible medical spending account with his employer was empty. There was a charge of $1600 for an er visit on January 13, 2012.  Dean was arrested and admitted he had been using his brother’s name.  On appeal he raises weight and sufficiency of the evidence.  The Court of Appeals affirms.

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