Decisions – Miss.Ct. of App. – Sept. 30, 2014

Maslon v. Brown trespass/property damage – Brown and Maslon have adjoining property.  When Maslon’s cattle trespassed, Brown sued for damages.  The justice court ruled in favor of Brown, awarding him  $3,500 in damages. Maslon appealed to the circuit court of Marshall County, where after a trial de novo,  the court awarded damages of $2,150 to Brown and  ordered that Brown and Maslon share the cost in building a hogwire fence to separate their properties .  The Miss. S.Ct. affirms.

$6,000 v. the Miss.Bureau of Narcoticsforfeiture – cops pursued  John Norman Cole after he failed to stop at a driver’s license checkpoint  in Jefferson Davis County, Mississippi. Cole crashed his car and fled on foot. WHen Cole was caught, officers found a roll of money ($6000), secured by a rubber band, and a clear plastic bag containing a white powdery substance (cocaine) on the ground in the immediate area of Cole’s arrest.  The state sought forfeiture and Cole contested it. The trial court found for the Bureau of narcotics. On appeal, he argues the trial court erred in letting the state’s experts testify even though they were not designated timely.   The court rules that Cole waived this issue. “On the morning of trial, Brown, noting that he had received notice of the expert designations two weeks prior to trial, in violation of Rule 4.04A, stated: ‘So I am just objecting to any expert testimony elicited from either [designated expert witness].’ At no
time did Brown request a continuance. Thus, we find Brown waived this issue.” The court also rejects Cole’s sufficiency of the evidence argument.  In so doing, the court discusses close proximity.

Sherrod v. State –  possession of cocaine – Sherrod was with his girlfriend Gennice Hayes in the Walmart parking lot in Pascagoula when Hayes was arrested for trespass. “During the arrest, one of the officers returned to the vehicle to retrieve Hayes’s purse. Sherrod asked the officer if he could keep the purse to bail Hayes out of jail. The officer informed Sherrod that the purse needed to be inventoried and that he would have to come to the station to post bond for Hayes. Sherrod complied. At the station, the police inventoried the purse and found a pack of cigarettes containing two clear bags. Hayes saw the bags through the booking window and repeatedly stated they did not belong to her. The dispatch supervisor informed Sherrod that he could not collect the purse because narcotics had been found. At that point, Sherrod stated that the narcotics belonged to him.”  When testing showed the substance amounted to 11.8 grams of cocaine, Sherrod was indicted for possession.  He was found guilty and sentenced to 18 years.

On appeal he argues the trial court erred in excluding evidence of a one gram packet of sweetener.

 On cross-examination, defense counsel handed Harried a sweetener packet and asked her to identify it. The State objected. Defense counsel stated that the one-gram sweetener packet was intended to provide the jury a visual of a substance weighing one gram. The circuit court ultimately concluded the evidence was irrelevant. The judge reasoned that the actual drugs seized were in evidence and an expert witness testified the drugs weighed 11.8 grams combined.

The court held that the court did not err in excluding the sweetener since it was not relevant.  Sherrod also complains about the weight of the evidence.  The trial court affirms.

Linde Gas and Zurich American Ins. v. Larry Edmonds –  workers comp./coming and going rule – Larry Edmonds was working as an instrumentation technician at Linde Gas when he was injured in a motor vehicle accident.  He lived in Scooba but worked at several different plants (Vicksburg, Brandon, Columbus etc.).   He was provided a company truck and fuel cared but was not supposed to use the vehicle for company business.   When he was working at the Columbus plant, he was not paid for travel time but when reporting to the other plants, his work week began when he left home. On Oct. 21, Edmonds was scheduled to work at the Columbus Plant.  On the way there, he rear ended a gravel truck.   His employer hired an accident investigator who opined that Edmonds was at fault in the accident, Edmonds was speeding, not using his headlights or his seatbelt. The Commission found that Edmonds injuries were compensable.  The employer appeals arguing that the accident should not have been found to be an exception to the coming and going rule.  It also argues that Edmonds intended to injure himself. The Miss Ct of Appeals, en banc, affirms.

Terrance Clark v. MDOCearned time for habitual – Clark was sentenced for three offenses.  Two of the sentences are habitual. In February 2012, Clark asked MDOC about receiving meritorious earned time and was told  he was ineligible to receive meritorious earned time as a habitual offender but could be eligible for meritorious earned time on his two-year sentence. He appeals.  The Miss. Court of Appeals affirms.

Taylor v. MDOCrevocation of trusty status – Taylor was stripped of his trusty status when he was found with a cell phone in his cell. “While Taylor argues he never received notice of a rule-violation hearing, Taylor signed two documents acknowledging he received notice. When it was time for the hearing, Taylor refused to come out of his jail cell. So the hearing officer found him guilty in his absence after reviewing a witness statement and the investigative report. After review, we find substantial evidence supports MDOC’s finding of a rule violation and affirm.”

Timothy Kennedy v. Estate of Thomas Kennedyheir ordered to repay loans prior to inheriting –  Timothy Kennedy appeals the court’s finding that he must repay $91,700 in loans from his father before he may inherit from the estate along with his five siblings.  The father had made a series of loans totaling $180,900.  At the time that the executor asserted a claim for repayment, the general 3-year-SOL had run, so the court ordered that Timothy pay repay the loans that were not barred by the SOL.    “According to Timothy, the only way his brother as executor could have recouped the debts was by filing a separate legal action in circuit or county court. And because Thomas Jr. never did this, Timothy suggests
recovery of all the loans—even those made less than three years before the motion for final accounting—is barred by the three-year statute of limitations.”  The Ct. of Appeals disagrees.

If Thomas were a nonheir, there would be no question that the statute of limitations  barred recovery for all loans made more than three years prior. And we do not see how his status as an heir should alter the fact that at some point the recovery of his debts became time-barred. Further, if the roles were reversed—for example, the estate was the debtor and
Timothy the creditor—the estate would have been able to assert the statute of limitations as a defense to Timothy’s recovery action.

Massey v. Masseyalimony – court refuses to award alimony, wife appeals.  The Court of Appeals affirms holding that alimony should be considered if one spouse is left with a deficit after the equitable division of the marital assets.  Here, the court allocated the marital assets so that Jennifer received $720,613.53 in total equity, and Stephen received $798,940.17 in total equity. To offset Stephen’s excess, the chancery court ordered Stephen to pay Jennifer $39,163.32, resulting in each party receiving an equal share of the marital estate”.

Harris v. Harrisservice in post divorce proceedings – the parties were divorced in 1994. Years of litigation followed.  Finally, Janna filed a motion for relief from judgment alleging Winston had committed fraud on the court. The chancellor eventually dismissed it finding that Janna needed to serve  summons pursuant to Rule 81(d)(2) to revive the matter against Winston.  The Court of Appeals affirms finding that “Janna’s motion for relief from judgment was dismissed without
prejudice solely for her failure to serve Winston with a summons and complaint”, yet Janna never did so.

Rodney Williams v. Manhattan Nursing and Rehabilitation –  proof required for nursing home negligence – Williams grandmother was admitted to Manhattan Nursing home when she broke her pelvis at the age of 86.  She also suffered from numerous illnesses and conditions including end-stage renal disease.  Five months into her stay, she developed a bed sore.  A few days later she was admitted to St Dominics where she died.  Her estate sued Manhattan for wrongful death claiming that Manhattan’s malpractice caused her to develop a bedsore and killed her. After a trial, the court directed a verdict for Manhattan finding that the plaintiff failed on the issue of causation. Williams had a nursing expert testify that the home should have placed Mannie WIlliams on a program to reduce the risk of her becoming completely incontinent. WIlliams also had a doctor testify that Mannie died due to sepsis caused by the bedsore.  He was critical of Manhattan’s care in three areas:  pressure sores, malnutrition and infections. The Miss.Ct of Appeals affirms the verdict for the nursing home.

 Although Trahant acknowledged a breach in the standard of care for Manhattan to develop a toileting schedule, Trahant stated that Mannie was completely incontinent by December 22, 2006, and incapable of participating in a toileting plan after that date. Specifically, Trahant testified that, at the time Mannie developed the excoriation of her coccyx, Mannie
was no longer able to participate in a toileting plan. Further, Dr. Miller concluded that Mannie’s death was caused by sepsis due to a combination of her medical problems, including not only her ulcer, but the infection in her lungs, as well as her malnourished state.

After a review of the record, we cannot find that the testimony provided a nexus between the breach of a standard of care by Manhattan and the proximate cause of Mannie’s death. Specifically, the expert testimony failed to establish that Mannie’s ulcer was the proximate cause of her death due to Manhattan’s failure to provide an effective toileting plan. As such, this issue is without merit, and the judgment of the circuit court is affirmed.

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