Decisions – Miss.S.Ct. – Feb. 12, 2015

Sheila Ealey v. State –   criminal insanity –  Ealey, at 41 and the mother of 5, gave birth to a baby boy in a hotel room, wrapped the baby in a comforter, put him in a suitcase, and left the suitcase behind her church.  The baby died.  She was  found guilty of capital murder with the underlying felony of child abuse, and sentenced to lwop.  She raises three issues on appeal:  the trial court’s refusal to give an  accident-or-misfortune jury instruction; sufficiency of the evidence: and urges the court to replace the  M’Naghten Rule on insanity.  Her conviction and sentence are affirmed.

Lauren Gateley v. Clayton Gateley –  custody – Clayton  and  Lauren were married in  2006, had two children and then divorced in 2012 at which time the son was 6 and the daughter 2.   Clayton claimed Lauren should not have custody because she suffered from trichotillomania, a nervous disorder characterized by the irresistible impulse to pull one’s own hair. The
chancellor heard testimony that Lauren would spend several hours a day in the bathroom pulling her hair when she should have been watching the children.  Lauren claimed Clayton abused alcohol.   The chancellor found that each parent had two Albright factors in their favor. The GAL recommended the children be kept together and that Clayton be awarded primary custody. The chancellor ended up doing so and Lauren appeals. The Court affirms. “Once a chancellor has decided what is in a minor’s best interests, we will not overturn that decision—provided it is based on substantial evidence—unless it is clearly erroneous.”

In the Matter of the Estate of Dane Eubanks – attorneys fees in complicated wrongful death scenario – Dane was killed in a one-vehicle accident  His mother opened an estate, was named administratrix, and hired Kihyat to represent the estate Survivors were listed as the mother, biological father, stepfather,  a brother Seth, and a half brother Aiden. A settlement was reached with the insurer of the driver of the truck in which Dane was killed for  the $100,000 Allstate policy limits.  Meanwhile, the bio. Dad was excluded since he had not supported Dane after Dane turned 4.  Then it turned out that Dane’s bio. father  had a son (David Jr) and daughter (Allison) by Huber.  The Estate sought to join them and attorney Perry entered an appearance to represent Huber, the mother of the half siblings.

Kiyhat then pursued a claim against for uninsured benefits under Dane’s stepfather’s policy with Allstate. Allstate filed a dec. action in federal court and a settlement of $250,000 was reached.  Kihyat had associated attorney Castigliola to assist with the dec action.  Kihyat and Castigliola also tried, unsuccessfully,  to have the step siblings excluded from participating the  $250,000 settlement.  Eventually the chancellor divided the settlements equally among the one sibling and three half siblings and awarded  the attorneys a 40% fee.  Huber appealed the award of attorneys fees since Kihyat and Castigliola had actively worked against David Jr and Allison’s getting part of the $250,000 settlement.  Plus, neither attorney had entered into a contract with David Jr and Allison.  The Ct. of Appeals held that although they didn’t sign with the attorneys, David Jr. and Allison had benefitted from their work.  The Ct. of Appeals reversed the 40% contingency award against David and Allison and remanded so that the chancellor could take into account the hours Kihyat and Castigliola spent adverse to David Jr and Allison.  The chancellor should make a determination of a fee that reflected “legal work reasonably and necessarily incurred for the minor’s benefit and the fairness of the fee” and make specific findings in doing so.

On cert., the Miss.S.Ct. holds as follows:

We agree with the Court of Appeals and the trial court that the proceeds must be equally divided. On the issue of attorney fees, four justices on this Court would hold that, because the attorneys had an actual conflict of interest with the half-siblings and acted adverse to their interests; and because they could not satisfy the requirements for quantum meruit, they were not entitled to recover any attorneys’ fees from the half-siblings shares. Four justices would affirm the Court of Appeals.

“And because a majority of justices have not voted to reverse the Court  of Appeals with respect to the issue of attorney fees, its opinion and holding on this issue, reversing in part and remanding, for this case must stand.”

Miss. Power Co. v. Miss. Public Service Comm’n – reversal of rate increase –   “Thomas Blanton asks this Court to invalidate rate increases approved by the Public Service Commission (“Commission”) for Mississippi Power Company (“MPC”). An examination of controlling law and statutes, the Constitutions of the United States and Mississippi, and a comprehensive review of the proceedings before us reveals that the Commission failed to comply with the language of the Base Load Act, inter alia, and exceeded its authority granted by the Act. The increased rates were achieved by including “mirror CWIP” in the rate base and rates. Following the inclusion of “mirror CWIP,” the “The Commission notes that the annual revenue adjustment will not be collected in full; that is, an annual rate designed to collect $125 million will actual collect $99 million from April – December 2013. The Commission also points out that the Commission, this day, has approved a rate reduction of approximately 2.7% relating to MPC’s non-Kemper business, which will reduce the impact to ratepayers related to the CWIP collection.”   The increased rates on 186,000 South Mississippi ratepayers fail to comport with the Act or, otherwise, with our law. Accordingly, the order granting rate increases is reversed, and this matter is remanded to the Commission for
proceedings consistent with this opinion.”

Taghi Boroujerdi v. City of Starkville –  tort claims actBoroujerdi’s home and yard were flooded with sewage that backed onto his property in February 2009.  He filed suit against Starkville alleging that the damage was a result of the City’s
negligent maintenance of its sewage system. The trial court granted summary judgment for the City, finding that the maintenance of the sewage system is a discretionary function and that the City is immune from suit pursuant to Mississippi Code Section 11-46-9(1)(d).  The Miss.S.Ct. reverses and remands.

Recently, in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), this Court overhauled its analysis of discretionary function immunity. Accordingly, we now must revisit our treatment of sewage-system maintenance as a discretionary function. We hold that, while the overall function of maintaining a sewage system may be discretionary, certain narrower functions and duties involved with sewage maintenance may be rendered ministerial through applicable statutes, regulations, and/or ordinances. Accordingly, we remand this case to the Circuit Court of Oktibbeha County for the plaintiff to address whether his premises flooded as a result of the City’s fulfilling or its failing to fulfill a ministerial function or duty.

Larry Wells v. State –  sentencing for second drug offense – Wells was convicted of possessing cocaine with the intent to distribute in  Harrison County. He was sentenced to 60 years without parole.   On appeal, the court affirms Wells’s conviction and mandatory thirty-year sentence under Section 99-19-81. “We find, however, that the trial court erred in reading Section 41-29-147 as requiring that Wells be sentenced to twice the time authorized for a second or subsequent drug conviction. Section 41-29-147 provides for discretionary (not mandatory) sentencing. Therefore, we vacate that portion of Wells’s sentence and remand the matter for resentencing.”

Willie Manning v. State – reversal on Brady violation – Manning was blamed for two double murders in Starkville, Mississippi.  Here’s his wikipedia page. This one involves the 1993 murders of Emmoline Jimmerson, 60, and her mother, Alberta Jordan, 90, who were found dead in their apartment at the Brooksville Gardens in Starkville.  The appeal mainly centers on the testimony of a witness, Kevin Lucious.

Lucious claimed to have seen Willie Manning push his way into the victims’ apartment. He claims he saw this from his apartment across the street but he did not move into that apartment until two weeks after the crimes. He also testified that   a week and a half after the murders, Manning confessed to him  while they were drinking at a club. Beginning eight years after the trial, Lucious has executed several affidavits recanting various parts of his testimony.

The Miss.S.Ct. does not reverse on Lucious’s recantation but on a Brady issue.   It turns out that the police department had notes that the apartment complex had been canvassed and there there was no one living in the apartment from which Lucious allegedly saw Manning push his way into the victims’ apartment.  The notes were not  in the DA’s file and, thus, were not given to Manning’s trial attorney.  The Court finds that the evidence should have been disclosed because it was possessed by a state actor.  It doesn’t matter that the DA may not have had it.

Furthermore, the information was material.

Both the defense attorneys and the district attorney testified that their actions in preparing for the case and presenting the case would have been different had they possessed the evidence. The defense attorneys testified that the receipt of this favorable, material evidence would have altered their defense. There is no question that defense counsel would have had the opportunity to meaningfully impeach Lucious’s testimony that he lived in the apartment at the time of the crime and saw Manning enter the victims’ apartment. Any attorney worth his salt would salivate at impeaching the State’s key witness using evidence obtained by the Starkville Police Department. As stated supra, the district attorney’s testimony that he would have investigated the discrepancy between Lucious’s testimony and the cards is also crucial to prong four, bolstering that a reasonable probability exists that the outcome of the proceedings would have been different.

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