Decisions – Miss.S.Ct. – Dec. 11, 2014 – part 2

Harvey Williams v. StateAG’s powers – Harvey was convicted of the murder of his scumbag brother in law Calvin Younger.  Williams had had Younger arrested after Younger robbed Williams’ house and when Younger vowed revenge when he bailed out of jail.  The case was reversed on appeal because the trial court excluded last-minute evidence that Younger had been seen holding a gun prior to his being shot.  On remand, the DA wisely decided not to prosecute Williams and obtained an order of nolle prosse.  The original prosecutors on the case had gone to work for the AG and managed to prevail upon the trial court to rescind the nolle prosse and appoint the AG’s office to try the case.  Williams objected and the new trial judge found that the court could not rescind the nolle prosse   “but appointed the Attorney General’s Office as a special prosecutor in the place of the local district attorney, merely because the duly elected and serving local prosecutor had exercised his discretion not to prosecute Williams.” Williams sought an interloc. which the court granted and reversed. “The involuntary disqualification of the local district attorney and the substitution of the Office of the Attorney General, over the objection of the local district attorney, are wholly unsupported by any constitutional, common law, or statutory authority of the State of Mississippi.”

In RE: Lein against M/Y Areti and M/Y Lady Linda: Trinity Yachts, LLC v. Mike & Jerry’s Paint & Supply and State of Mississippi –  supplier’s lien – “This case involves a classic contract triangle among the owner of two yachts, an independent contractor hired to paint the yachts, and an unpaid paint supplier. The owner challenged a lien the unpaid paint supplier established and enforced on two multimilliondollar yachts under construction at the owner’s Gulfport shipyard. See Miss. Code Ann § 85-7-31 (Rev. 2011). We affirm the trial court’s grant of summary judgment in favor of the owner on a finding that privity did not exist between the owner and the unpaid paint supplier.”

Tanya Sanderson v. Hobson Sandersonprenup – Tanya and  Hobson were married for 17 years  when they sought a divorce.  Tanya signed a prenuptial agreement the day before their marriage.  The  chancellor enforced the terms of the agreement and  Tanya appeals.  The Miss.S.Ct. affirms in part and reverses in part.  “We affirm the trial court on its finding that the prenuptial agreement is not procedurally unconscionable. We reverse and remand for further proceedings on whether the prenuptial agreement is substantively unconscionable. We also hold that certain funds, used for familial purposes, kept in a joint bank account created after the marriage began, do not fall within the parameters of the prenuptial agreement.”

In the Matter of the Estate of Charles William Wright –  res judicata – Charles William White (“Bill”) and his son Tommy were partners in a business that owned convenience stores. Bill married Anita. “In 2005, Tommy bought his father’s share of the partnership for $42,600, but in dissolving the partnership, Bill and Tommy neglected to execute and file deeds transferring the partnership’s real property.”  In  2009, Bill’s health was declining and  Anita and Tommy clashed over Bill’s healthcare.  “During this time, Tommy realized that he and his father had failed to execute deeds transferring the partnership’s real-property assets.
Tommy used a durable power of attorney his father had given him years before to execute quit-claim deeds transferring the partnership property to himself.  Tommy filed a petition for a conservatorship for his father’s benefit and sought appointment as his father’s conservator. Anita filed a counterclaim challenging Tommy’s fitness to serve as his father’s conservator. She also sought to  Tommy return all assets he had transferred to himself.  The chancellor appointed a third party as Bill’s conservator. . When Bill died in June 2009, the conservator filed a motion asking to be discharged from his duties and to be allowed to distribute the assets of the conservatorship to Bill’s Estate. The parties agreed to an order discharging the conservator and to a distribution of funds held by the conservator to Bill’s estate.

In  2010, Anita filed suit to set aside the quit-claim deeds and to redeem the real property Tommy had acquired using his father’s power of attorney.  The chancellor held that Anita’s action was barred by res judicata.  The Court of Appeals affirmed. The Miss. S. Ct. grants cert. and reverses and remands.

The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the  contested claims between Tommy and Anita, but he did not.

The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’sSee Miss. Code Ann. § 93-13-267 (Rev. 2013) (“A conservator may resign or be discharged in the same manner as a guardian of a minor and may also be discharged by the appointing court when it appears that the conservatorship is no longer necessary.”). When a person dies, he no longer needs a conservatorship. See Estate of Atkins v. Sartin, 422 So. 2d 754, 757 (Miss. 1982) (noting that a conservator could not withdraw funds belonging to a person subject to a conservatorship after the person’s death because the conservatorship ceased upon the person’s death).   The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.

Rebecca Hentz v. Statedoes a pardon require an expungement? – “This Court is presented with the following issue: whether a convicted felon is entitled to an expungement of her conviction after receiving an executive pardon. Because there is no statutory authority in Mississippi for the courts to order an expungement under these circumstances, we affirm the trial court’s order denying the request for expungement in today’s case.”

Janet Olier v. Donna Baileypremises liability – Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard.  As she fled she fell and broke her arm.  She sued and the trial court held that Bailey did not breach a duty of care because Olier was a licensee.  It also denied relief because there was no evidence that  the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident. Olier appealed to the Jackson County Circuit Court, which affirmed. On appeal to the Miss.S.Ct. the Court affirms on the premises liability theory.  It reverses on the dangerous propensity theory.

 We find that there is at least a question of fact regarding whether Bailey was on notice of her geese’s dangerous propensity. She had witnessed the geese being aggressive toward Olier, she armed Olier, she trained Olier to defend herself from the creatures, and she volunteered to act as a diversionary decoy so the geese would not immediately set upon Olier when she entered the yard. A reasonable and properly instructed jury could find that the type of injury caused by these geese reasonably could have been foreseen by Bailey under these circumstances.

Leevester Brown v. State –  indigent defendant’s right to state funded experts – Leevester was found guilty of capital murder and sentenced to life without parole in the death of his weeks old son who had been born prematurely and spent the first few weeks of his life in the hospital. Dr. Steven Hayne did the autopsy and found that the baby died of shaken baby syndrome.  Prior to trial, he requested that the county provide funds for him to hire his own expert.  “The State argues that Brown is not truly ‘indigent,’ as he was able to gather the funds to post bond and to retain his own counsel. The State took this position in its Response to Brown’s Motion to Hire Expert, and the trial court appeared to agree.”   The Court reverses on t his issue. “We do not find a prior opinion from this Court that addresses our situation exactly. But other courts have addressed the situation and held that the existence of retained counsel does not, in and of itself, bar a defendant from being indigent for purposes of a state-funded expert.”  The Court also finds that the trial court erred in refusing to allow Brown to cross-examine the treating physician on  “immunization studies, and whether she agreed that some of those studies have shown that
immunizations ‘have often caused events in children that mimic Shaken Baby Syndrome.'”  The trial court sustained the state’s objection to this line of questioning.  “We find that the trial court’s decision deprived Brown of the right to “fully crossexamine”
Dr. Wells.”

In the Interest of a Minor: Victoria Denise Waites –  whether father who raised child can be ousted from custody determination once DNA proves the child is not his –  Amy and Scott had two children. Two years after their divorce, Amy moved to have their joint custody agreement modified because she was planning to remarry and live in Iowa.  After filing the petition,  Amy contacted T.J. Sanford (“T.J.”) to let him know she believed him to be her eldest child’s biological father.  A DNA test proved T.J.’s paternity and he sought  custody. The trial court excluded Scott from the custody determination, applied Albright to Amy and TJ and awarded full physical and legal custody to Amy rather than T.J.  Scott appealed.  THe Court of Appeals found that Scott’s fatherly actions  rebutted  the natural-parent presumption afforded to Amy and T.J. and held that  Scott should have been considered on equal footing with the natural parents.  The Miss.S.Ct. reverses.

This Court has stated that the grounds for rebutting the natural-parent presumption involve negative actions/dispositions of the natural parents in relation to the child (i.e., abandonment, desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s finding, which was not challenged on appeal by Scott or in the Court of Appeals decision, was that Amy and T.J. had not conducted themselves in such a manner as to rebut the natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive, “supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W., 2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position is congruent with the present state of the law.

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