Decisions – Miss.S.Ct. – Dec. 11, 2014 – part 1

Dimp Powell v. the Election Commission of Isola election contest –   Dimp Powell was the mayor of Isola.  Bobbie Miller sought to run against him and the  Municipal Election Commission of Isola approved the placement of Miller’s name on the ballot despite the fact that a Democratic Municipal Executive Committee was not in existence by the time of the qualifying deadline for candidates. Powell filed for a writ of mandamus in circuit court seeking an order that the Commission not to place Miller’s name on the ballot or, in the alternative, to order that any votes cast for Miller not be counted.  The court held an emergency  hearing the week prior to the election and denied relief.  Miller won.  Powell appeals and the Miss.S.Ct. affirms finding that Powell should have filed a bill of exceptions under M.C.A. Sect. 11-51-75.

Chism v. Brighttermination of parental rights – Abby and Jim were married in 2003 and had one child, Johnny, born in 2004,  They divorced in 2008 and shared joint legal custody of Johnny.. Soon after, Abby filed to modify custody and the chancellor  modified visitation to require Jim’s mother to supervise Jim’s visitation with Johnny.  A year later she filed to terminate Jim’s parental rights.  Abby had remarried and her new husband wanted to adopt the child.

There was testimony about an incident in 2008.  After a night of partying,  Jim woke up and picked up Johnny from his parents’ cabin. He then borrowed a car  and drove Johnny to McDonald’s. While they were in the drive-thru line at McDonald’s,  a witness called the police and reported that Jim was asleep at the wheel.   Jim was  ticketed for public drunkenness. It was then that Abby filed to limit Jim’s visitation.  Jim became depressed because he was not allowed to see his son.  He did drugs, went to rehab, and did drugs again.  The chancellor terminated Jim’s parental rights chancellor citing MCA Sect. 95-15-103 which allows for the termination of parental rights if the parent “exhibits ongoing behavior which would make it impossible to return the child to the parent’s” or “where  the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally acceptable care of the child. Jim appealed and the Miss. Court of Appeals affirmed.  Jim filed a pet., for cert. which was granted. The Miss.S.Ct, reverses. “Here, it is undisputed that Johnny was not ‘removed from the home of his natural parents.’ And we also do not find from this record that Jim is ‘unable or unwilling’ to care
for Johnny.”

Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent  certainly does not mean that he is “unable to care” for Johnny. This Court “has never  allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.

Vicksburg Healthcare v. Clara Dees – med mal/summary judgment Clara Dees filed a medical malpractice case against  Heritage House Nursing Home and  River Region Medical Center (owned by  Vicksburg Healthcare, LLC). The case against Heritage House was subkect to arbitration.  Vicksburg Healthcare filed several motions for summary judgment all based on the plaintiff’s failure to have an expert opinion in support of her case.  The motion was eventually heard and denied by the court which granted based on Dees’ expert designation: the court gave Dees an additional sixty days in which to provide a sworn affidavit of the expert’s testimony. Vicksburg Healthcare filed an interloc. appeal which was granted.  The Court reverses.

The trial-court judgment will be reversed on a decision to grant additional time if abuse of discretion is found. Owens, 759 So. 2d at 1120. In this case, the trial court abused its discretion by giving Dees additional time to obtain an affidavit. A review of the record exhibits that Dees was not diligent in her efforts to oppose the summary judgment motion. The trial court previously had dismissed all claims with prejudice against all other defendants for Dees’s failure to comply with discovery demands, her failure to designate an expert, and her failure to establish a prima facie case of medical negligence.

As for the show cause proceedings against Dees’ attorney, the Court orders as follows:

 Before the Court are Vicksburg Healthcare, LLC’s Motion to Hold Appellee in Contempt, its Second Motion to Hold Appellee in Contempt, and attorney Michael E. Winfield’s response to those motions. After due consideration, we find that no good cause was shown for Winfield’s failure to comply timely with the May 2 order. Thus, we find that the motions should be granted in part, denied in part, and dismissed as moot in part. It is therefore ordered that (1) Winfield pay Vicksburg Healthcare $1,086 in attorney’s fees, costs, and expenses, which represents the difference between the $2,586 established by Vicksburg Healthcare at the initial show-cause hearing and the $1,500 that Winfield has already paid; (2) Vicksburg Healthcare’s request for us to strike the Appellee’s brief and to enter a judgment reversing the trial court and granting summary judgment for it is denied; and (3) Vicksburg Healthcare’s request that we order Winfield to pay $500 to the Court is dismissed as moot. To Grant in Part, Deny in Part, and Dismiss as Moot in Part: All Justices. Order entered.

Anthony Carrothers v. State –  hostile witness –  Anthony Carothers was convicted of two counts of aggravated assault.  On  appeal,  Carothers argued that the trial court erred by allowing the State to treat Sheena Carothers (Carothers’s half-sister and the victim of the assaults) as a hostile witness. The Court of Appeals reversed.  The Miss.S.Ct. granted cert and reverses the Court of Appeals.

The good-faith standard strikes a better balance between the truth-finding process at trial and ensuring a fair trial for the parties concerned. While the elements of surprise and/or unexpected hostility are (and remain) an acceptable basis for allowing a party to impeach its own witness, they are not required for purposes of Rule 607. We hold that, to prevent abuse of Rule 607, impeachment should not be allowed where the trial court finds the purported purpose of impeachment for offering the statement(s) is in bad faith, or is subterfuge to mask the true purpose of offering the statement(s) to prove the matter asserted. See, e.g., State v. Hunt, 378 S.E.2d 754, 758 (N.C. 1989) (citing DeLillo, 620 F.2d 939; Webster, 734 F.2d 1191). Our trial judges are well suited to make these calls. To the extent that Wilkins holds otherwise, it is overruled.

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