Decisions – Miss.Ct. of App. – Dec. 16, 2014

Concerned Citizens of Raven Wood Subd. v. Pearl River County – The residents of Raven Wood filed suit against the county seeking to enjoin a third party landowner from constructing a railroad spur on an easement on  land owned by Pearl River County. The plaintiffs contended that the construction was illegal  and that it was exacerbating flooding problems on their properties. The trial court granted summary judgment and the Court of Appeals affirms.

Roy McCrory and Carol McCrory v. The Miss. Dept. of Revenue – the Miss. Dept of Revenue determined that the McCrorys had failed to file tax returns for several years and sent them an estimate of tax due.  The McCrorys sued asking for injunctive and declaratory relief. The trial court granted summary judgment and the Court of Appeals affirms.

Landress Cheeks v. London Smith –  bill of exceptions – The four  plaintiffs were  ousted as Commissioners of the Canton Municipal Utilities Commission after the City of Canton’s governing authorities voted to remove them without a hearing as required by state law. They filed both a bill of exceptions and a complaint for injunctive relief. The trial court dismissed the complaint and the plaintiffs appealed.  This appeal is only from the dismissal of the complaint and not the bill of exceptions (which is a separate case). The Court of Appeals affirms finding that there is an adequate remedy at law via the bill of exceptions.

Jeremy Radau v. State –  capital murder – Jeremy Radau was convicted of capital murder after beating a seventy-four-year-old man to death with a baseball bat.  Radau admits the killing but he disputes he intended to commit a robbery claiming he only went there to get some xanax.  “But Radau’s girlfriend testified robbery was the motive. And authorities recovered the stolen cash and the baseball bat Radau lifted from the victim’s apartment after killing him.”   On appeal, he argues only sufficiency and weight of the evidence.  The Court of Appeals affirms.

Craig Bentrup v. Christopher Eppsappeal from grievance procedures filed against MDOC – He wants an RVR dismissed, has problems with allegedly unsanitary  procedures for haircuts and alleges the prison took his legal materials. A couple of these were dismissed for failure to exhaust; the court found for MDOC on the others. The Court of Appeals affirms.

Arthur Hudson and Linda Hudson v. Lowe’sstatute of limitations not tolled during appeal – Arthur claimed he was injured by an employee of Lowe’s on May 5, 2006.  His attorney, Chuck McRae,  was in settlement negotiations and got Lowe’s to agree to toll the SOL extending the time to file suit to July 31, 2009. On July 27, 2009, Hudson filed his complaint.  On August 3, 2009, the circuit clerk issued a summons addressed to Lowe’s registered agent for service of process, Corporation Service Company.  Hudson’s attorney  attempted to serve a copy of the summons and complaint on Lowe’s attorney, Adcock,  at Adcock’s law office, leaving it “on the [right] side of door.” On January 20, 2010, Lowe’s registered agent, CSC, was personally served with a copy of the summons and complaint.  Lowe’s moved to dismiss and the trial court granted it. Hudson appealed and the Court of Appeals affirmed  on the grounds that service on Adcock was improper but found that the dismissal should have been without prejudice. Hudson v. Lowe’s Home Centers Inc., 98 So. 3d 1093 (Miss. App. 2012).  Hudson filed a second lawsuit which was also dismissed based on the SOL.  The court imposed sanctions on Hudson’s attorney.  The Court again affirms.  Hudson argues that the filing of a new complaint four days after the date of the final judgment on appeal was sufficient.  Lowe’s argues the SOL was tolled only for the 120 days after the complaint was filed.

In support of this argument, Lowe’s cites to Watters v. Stripling, 675 So. 2d 1242 (Miss. 1996). In Watters, the supreme court addressed the question of whether the filing of a complaint tolls the statute of limitations until the 120-day window for service of process has expired or until after the case has been adjudicated. Id. at 1244. The supreme court ultimately found that filing a complaint tolls the statute of limitations only for the 120-day service period provided in Rule 4(h), and the clock begins to run again at the end of the 120  days. Id. at 1244;

The Court notes that McRae wrote a dissent in Watters.  “[T]he three-year statute of limitations had run four days after the 120-day period expired, which was November 28, 2009. Accordingly, the refiling of the action on October 15, 2012, was done
well past the expiration of the statute of limitations.”  As for the sanctions, the Court also affirms.  “As discussed above, we find the law to be clear that the statute of limitations is only tolled for the 120-day-service-of-process period, and begins to run again at the end of that period. Accordingly, it was evident when the second suit was filed, over two years after the
expiration of the statute of limitations, that it was time-barred. The circuit judge in question was vested with the proper authority to raise and impose sanctions, including the assessment of attorney’s fees.”

Debra Bartley-Rice v. State Farm –  preservation of issues for appeal –   Debra Bartley-Rice was driving north on I 55 in Madison County, Mississippi. The car directly in front of her suddenly slammed on the brakes and swerved to avoid tire debris in the road. Bartley-Rice changed lanes and continued to travel northbound.  Judy Austin was behind Bartley-Rice. When Austin noticed Bartley-Rice change lanes, she attempted to change lanes as well and  collided with a vehicle driven by Indalan Haymon. Haymon then lost control of her vehicle and collided with the rear of Bartley-Rice’s vehicle.  Bartley-Rice  suffered a torn rotator cuff and a soft tissue injury to her back and neck incurring over $40,000 in medical bills. She sued Haymon and Austin who were both uninsured and so Bartley-Rice also sued her insurance carrier for  uninsured-motorist coverage.   State Farm moved to bifurcate whiuch was granted. If a final judgment of liability and damages was entered in Bartley-Rice’s claims against Haymon and Austin, then such an award would be binding as to Bartley-Rice’s claim against State Farm, subject to the policy limits. The jury returned a verdict  concluding the accident was unavoidable and returned a verdict for the defendants, stated that the damages were 0.

The jury also returned a special verdict form. The jury answered “Yes” to each question that asked whether they found Bartley-Rice, Austin, and Haymon guilty of negligence that proximately caused Bartley-Rice’s damages. Further, the jury apportioned sixty-six percent of the fault to Haymon and Austin and thirty-three percent to Bartley-Rice. The trial judge questioned the jury foreperson about the two verdict forms. The trial judge then confirmed that she viewed the two verdicts to be consistent and represent the same verdict. After the verdict was read, the trial judge questioned the intent of the jury and then polled each juror. The trial judge found the verdict was unanimous. After an exchange between the trial judge and counsel, there was no objection or request for further clarification  of the jury-verdict forms before or after the verdict was read.

On appeal, Bartley-Rice argues that  the trial court erred when it failed to require the jury to clarify its verdict where the general-verdict form was in obvious conflict with the special-verdict form. Next, she argues that the jury verdict is unsupported by the evidence and evinces bias, prejudice, and passion by the jury. As for the first issue, Bartley-Rice failed to argue t his issue below and is procedurally barred.  As for the second issue, Bartley-Rice filed her motion for a new trial 15 days after the verdict and further failed to bring her motion to the attention of the judge and, thus, this issue is also procedurally barred.

Appeals from pcr petitions:

Timothy Sharp v. State

Ricky Moore v. State

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