Decisions – Miss.S.Ct. – Sept. 18, 2014

Jones v. Imperial Palacepremises liability/misaligned parking bumper –  Jones tripped over a concrete parking bumper in the parking garage of the Imperial Palace and sued.  The trial court granted summary judgment, the Court of Appeals reversed, and on cert., the Miss. S.Ct reverses the Court of Appeals and reinstates the trial court’s grant of summary judgment.  An investigator for the casino testified that the casino knew that the bumpers occasionally became misaligned.  The Court of Appeals held that this was like a store that knew it had a leaky roof and, thus, that a puddle will form when it rains.  The Miss.S.Ct. disagrees.

  Jones contends the same rationale should apply in his case because Imperial knew that, from time to time, some bumpers had been misaligned. But Drennan is easily distinguished from the case before us today because that case stands for the proposition that certain known facts—in that case, a known leaky roof over the exact puddle in question, together with heavy rain, put Kroger on sufficient constructive notice that the particular puddle in question was likely to be present. Stated another way, more was required than simple knowledge of a history of puddles.

By contrast, in the case before us today, the plaintiff produced no evidence that Imperial knew or had reason to know that the particular bumper that caused Jones’s injury was misaligned at the time of the injury.

Stevenson Ford v. Statemurder/intro. of testimony previously ruled inadmissible/premature deliberations – Some people got into an argument during a private party at the Southern Whispers Club in Greenville. When Marvin Stuckett was leaving, he was shot and killed. Stevenson Ford was convicted of his murder and sentenced to life without parole.  On appeal he raises a sufficiency of the evidence issue.  He also argues that the trial court erred in not declaring a mistrial on two occasions. The first arose during the testimony of one of the investigators.  The investigator had received a phone call from an unidentified citizen that the car involved in the shooting was parked at the Double Quick.  As questioning neared this topic, the judge ruled that this information was hearsay.  The prosecution conferred with the investigator.  When questioning resumed, the investigator was again asked if he received information. He responded that he received a citizen tip “that there was a vehicle parked at Double Quick that was involved with the incident on Stockton.”  The trial court sustained the objection and ordered the  jury to disregard the officer’s  statement of how he received the information. At the conclusion of  his testimony, the trial court examined him  out of the presence of the jury to ascertain why he had disobeyed the prosecutor’s instructions.  The officer insisted  he had not understood them.  Ford moved for a mistrial. The court holds that the testimony was not particularly harmful given the other evidence and, thus, the trial court did not abuse its discretion in not granting a mistrial.

The second motion came while  just prior to the closing arguments when a bailiff reported to the judge that the jury had been discussing the case.  “The judge spoke with the jurors, ascertained that they had begun deliberations mistakenly, and instructed them to cease. All the jurors and alternate jurors had been present in the jury room during the premature deliberations.”  As per Holland v. State, 587 So. 2d 848 (Miss. 1991),

the judge called each juror individually into chambers to ask if he or she had formed an opinion about the defendant’s guilt or innocence and whether he or she could remain fair and impartial. Every juror indicated that he or she had not formed an opinion about the case and could remain fair and impartial. The judge also asked if each juror could put aside ny discussion that may have occurred in the jury room, listen to the law given by the court, and decide the case fairly. Each juror said “yes.” Satisfied with the jurors’ affirmative responses, the trial court denied Ford’s motion for a mistrial on the ground that the premature deliberations were not prejudicial and had not denied Ford a fair trial.

The Miss. S. Ct finds that the court did not err in refusing a mistrial. “Holland indicated that error arising from premature deliberations could be cured if the trial court questioned the jurors and determined that they remained impartial.”  That is what happened here.

McCoy v. Statevindictiveness after plea vacated –  McCoy was indicted with two others for two counts of armed robbery.  In 2007, he pleaded guilty to both counts and was sentenced to thirty years’ imprisonment for each count, with five years suspended from each sentence and five years of post-release supervision. The  sentences were to run concurrently.  In 2009, McCoy challenged his plea on the grounds he was given erroneous information about parole eligibility. The Court of Appeals ordered that he be given a hearing and at that hearing the trial court vacated the plea.  McCoy went to trial, was found guilty and given consecutive 35 year sentences. On appeal he argues that the sentences were disproportionate and were the result of vindictiveness. He raises a Batson issue with respect to two black jurors. He argues that the state violated his right to be told about any promises made to a codefendant  in exchange for his testimony; that the in-court identification was so suggestive as to and that  McCoy was entitled to a circumstantial-evidence instruction.  The Miss.S.Ct affirms.

Shumake v. Shumake arrearage of periodic alimony – Leslie and Katarina were divorced in 2009.  Leslie was ordered to pay Katarina $5,750 per months in periodic alimony.  Shortly after that, Katarina filed a motion for contempt.   Hearings occurred over the next  three years.  In the end, the chancellor determined that Leslie was $58,550 in arrears plus interest.  On appeal, the Miss.Ct. of APpeals reversed finding that a $58,550 arrearage was fundamentally unfair.  The Miss.S.Ct. granted cert.

Periodic alimony vests on the date each payment becomes due. {Bowe v. Bowe,557 So.2d 793, 794 (MIss. 1990)]; see also Gregg v. Montgomery, 587 So. 2d 928, 934 (Miss. 1991) (stating that, “[a] court cannot give relief from civil liability for any payments that have already accrued,” when finding that the chancellor erred in not awarding unpaid alimony). Thus, from the outset, Leslie’s actions of reducing his alimony payments from $5,750 per month to $650 per week were without legal effect. Moreover, Leslie’s bankruptcy filing shortly after the chancellor entered the judgment of divorce is of no moment. See Varner v. Varner, 666 So. 2d 493, 497-98 (Miss. 1995) (recognizing that filing of bankruptcy does not, in all cases, “rise to the level of a substantial change” in circumstances); see also N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody §14-10 (6th ed. 2012) (“Obligations of child and or spousal support are not generally to be considered as or equated with any other debt known to and collectible under the law. There is more to these obligations than mere debt.”).

The Miss. S. Ct. reverses the Court of Appeals and reinstates the award of $58,550.

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