Decisions – Miss.S.Ct. – Dec. 4, 2014

Booneville Collision Repair v. City of Boonevilleduty of tax collector –   Booneville Collision Repair unknowingly purchased land that had been sold for delinquent municipal taxes.  It  redeemed the land and sued Prentiss County, the City of Booneville, and the municipal tax collector, Sheila Bolden, for damages the failure to provide notice of the tax sales. BCR argued that it had not received notice because Bolden never filed with the chancery clerk the list of properties sold for taxes as required by M.C.A.  § 27-41-79 which provides that “[i]f the tax collector or clerk shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default . . . on his official bond for the actual damage sustained.”  BCR also sued claiming negligence.  The chancellor granted the defendants’ motions to dismiss for failure to state a claim. The Mississippi Supreme Court reverses finding “that an action under Section 27-41-79 is a separate statutory action and not a tort action subject to the MTCA, and that BCR stated a claim under the statute. We further find that, while BCR’s negligence claim is subject to the MTCA, no immunity exists. Therefore, we reverse the grant of the motions to dismiss and remand for further proceedings.”

Pinnacle Trust Co. v. Lisa Brocato McTaggart –  arbitration agreement –  Billie B. Brocato established a trust for her daughter and grandchildren.  She died in 2004 and her estate was closed in 2005.  In 2005, the Trust entered into a wealth management agreement with Pinnacle Trust to provide asset-management services.  In this agreement was a provision providing for arbitration. In 2011, the daughter, Lisa McTaggart filed suit against  Pinnacle alleging alleging breach of fiduciary duties by “failing to prudently manage and invest the trust assets during the years 2007 through 2011,” resulting in a loss greater than 1.5 million dollars.  Pinnacle moved to arbitrate.  The chancellor  denied and the Mississippi Supreme Court affirms because the McTaggarts did not sign the arbitration agreement.  “We must determine if this case presents one of those ‘rare circumstances’ where nonsignatories should be bound by an arbitration agreement. More specifically, we must
determine if a direct beneficiary of a Trust automatically becomes a direct beneficiary of an agreement entered into for its benefit but to which it is not a party, or whether it is simply a third-party beneficiary.”  In deciding that they did not, the Court states,

The McTaggarts are, in fact, direct and residual beneficiaries of the Trust, but, nonetheless, that does not make them anything other than third-party beneficiaries of the WMA, as they were not parties to it. The McTaggarts are “strangers to the contract,” for they never knew of its existence and are not attempting to enforce any provision of the WMA. Third-party beneficiaries were explicitly excluded as being bound by the WMA. As such, this matter does not present one of those “rare circumstances” where this Court will bind nonsignatories to arbitration.

City of Jackson v. Lee Lewispolice pursuit/reckless disregard –  The Court grants rehearing on an opinion that case down June 5, 2014. The city had a road block.  When  Butler was observed trying to avoid the roadblock, a pursuit ensued and A car full of people were injured (one died)  when they were hit by the fleeing Butler.  By that time, the officer had been told to end the pursuit.  At trial, the court found the city 100% at fault and divided up the $500,000 cap among the three plaintiffs. On appeal, the Ct. of Appeals held that the City did not act in reckless disregard. The plaintiffs moved for cert. which this Court granted.  The Court ends up reversing the Ct of Appeals finding that it misinterpreted the factors for determining reckless disregard set forth in  City of Ellisville v. Richardson, 913 So.2d 973 (Miss 2005).  When this happened, the City had a policy that pursuits occurred only when an officer knew a felony had been committed and had probable cause to believe that person fleeing committed that felony. The pursuit here violated that policy.  On rehearing, though, the Court remands finding that the trial court’s apportionment of 100% of the fault to the City was not supported by substantial evidence.

William Brantley v. City of Horn LakeTort Claims Act/ambulance services –  Brantley was at home repairing his pick up when he  lacerated his forehead.  He called for an ambulance.   “Stephen Lowery was a member of the ambulance crew that responded to Brantley’s call. Lowery was a firefighter for the Horn Lake Fire Department but also was licensed as an emergency medical technician (EMT) and was trained as an ambulance driver.  As the ambulance crew was unloading Brantley at the hospital, Lowery  lost control of the stretcher and dropped him.  Brantley sued.  Horn Lake moved for summary judgment  arguing that it is immune  for governmental employees engaged in the performance or execution of duties or activities in relation to police or fire protection. M.C.A. § 11-46-9(1)(c). The Miss.S.Ct. reverses: “The MTCA does not contain a provision exempting governmental entities from liability from claims arising out of the provision of ambulance services. Rather, such claims are governed by Mississippi’s “Good Samaritan Law,” Section 73-25-37 of the Mississippi Code, which predates the MTCA. See Miss. Code Ann. § 73-25-37 (Rev. 2012). This Court has held that, under Section 73-25-37, the standard of care applicable to those rendering emergency medical assistance, including ambulance services, is “one of reasonableness.”

However, the operation of an ambulance service is discretionary.

As such, acts performed as part of its engagement in such a function generally entitle it to discretionary-function immunity pursuant to Section 11-46-9(1)(d). However, when engaged in that function, several duties involved with the operation of the ambulance service are ministerial, as the service is closely regulated by the State Board of Health through its administrative regulations. Because this Court has injected the aspect of discretionary-function immunity into the proceedings, the plaintiff has had no opportunity to tailor his discovery or strategy to address the possibility of a rule, regulation, or statute which may render the duty of removing a person from an ambulance a ministerial one, and thus could remove such duty from the umbrella of discretionary-function immunity. On remand, if the plaintiff can prove that the defendant was fulfilling a function or duty mandated by a specific statute, ordinance, or regulation promulgated pursuant to lawful authority, then he may proceed with his claim. Accordingly, we reverse the grant of summary judgment by the DeSoto County Circuit Court, and remand for further proceedings consistent with this opinion.

Brian Bronk v. Margaret Hobson –   In 1999, a county court heard a paternity case and awarded custody of the child to the mother. There have been subsequent orders modifying the original order. In February 2012, Hobson filed a petition to modify support. It was then that  Bronk’s counsel realized that the County Court lacked subject matter jurisdiction to determine Bronk’s request for modification of custody and visitation.   On the date set for hearing, Bronk’s counsel presented a motion, ore tenus, to dismiss “any and all actions, judgments, [and] orders, as it pertains to child custody of the minor child in Civil Action Number CA-99-0062[,]” or in the allternative to transfer to Chancery Court of Lauderdale County, Mississippi.  The county court denied the motion. Bronk appealed and the Miss.S.Ct. reverses.

Accordingly, we find that Section 9-9-21 grants county courts jurisdiction over all matters in law and equity wherein the value of the thing in controversy is capable of being expressed in terms of monetary value, and that value does not exceed $200,000. Absent explicit statutory language to the contrary, this does not include child custody determinations. The Legislature is free to grant, affirmatively and clearly, jurisdiction over child custody matters to county courts, but it has not done so.

While Hobson  argues that a 2013 amendment to Section 93-9-15 brought child custody into the jurisdiction of the county courts, that statute is not retroactive.

The Miss. Bar v. Eugene T. Holmes – disbarment of a Georgia lawyer with a Miss. license. who surrendered his Georgia license in 1992.

Clayton Gutierrez v. Trisha Gutierrezdivorce/division of assets – Clayton and Trisha married in 1987 and had three children.   Trisha filed for divorce in  2010 and they eventually agreed to an irreconcilable differences divorce.  They also agreed on custody.  The only contested issues concerned the marital assets and liabilities. “The majority of the evidence presented at trial focused on the value of Clayton’s interests in various business ventures,including his family’s seafood business, Global Seafood Technologies, Inc..” Clayton insisted his net worth was zero.  A few years before the divorce, GST was worth   $13,000,000 in financial statements given to banks  but this figure had shrunk to $1,400,000 a few weeks after Trisha filed her divorce complaint.

The chancellor determined that the net marital estate, which consisted primarily of Clayton’s business interests, was valued at $501,647, allocating $35,685 to Trisha and $465,962 to Clayton. Trisha’s share of the net marital estate consisted of her vehicle, her checking and retirement account, the couple’s interest in several parcels of real estate, and proceeds from other marital assets that had been sold during the divorce. The chancellor balanced the apportionment of assets by granting Trisha lump-sum alimony of $215,139.50, to be paid in five annual installments. In addition,after considering the Armstrong factors, the chancellor awarded Trisha $2,000 per month in permanent alimony.  The Court ends up remanding “for the chancery court to determine whether Trisha or Clayton has any legal responsibility to repay the second mortgage and to reallocate the mortgage liability accordingly. Where it is necessary to reverse the chancery court’s division of the marital estate, an accompanying award of alimony should also be reversed, as a reallocation of marital assets and liabilities may obviate the need for alimony.

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