Decisions – Miss.S.Ct. – May 7, 2015

Minnesota Life Ins. v. Columbia Casualty –  the Court denies rehearing but substitutes this opinion for its earlier opinion.

Charles Benvenuti v. John McAdams –  SOL for stealing from an estate – “The conservators of Soon San Pak’s estate filed suit against their two attorneys, Harrison County, the Harrison County ChanceryClerk, John McAdams, and the guardian ad litem appointed for Mrs. Pak, after the previously appointed conservator, Woodrow W. Pringle III, embezzled money from the estate.”  The trial court dismissed the case based on the statutes of limitation.  In 2001 Soon Soon Pak’s health was deteriorating.  In 2005, when her stepson managed to get a cashier’s check for $300,000 from her, the daughters managed to establish a conservatorship.   Pringle was appointed conservator of Mrs. Pak’s estate. The Smiths remained as coconservators of Mrs. Pak’s person. Charliene Roemer was appointed guardian ad litem. Roemer also was appointed to serve as divorce counsel for Mrs. Pak in divorce proceedings against Yong Pak.  Two years later, the daughters hired an attorney who filed a motion expressing dissatisfaction with Mr. Pringle’s services. On September 29, 2010, Pringle filed his first accounting with the court, showing that Mrs. Pak’s Peoples Bank account had $277,082.58.4 However, at the time of the accounting, the account had only $86.  A few months later, Pringle committed suicide. In 2012, the new conservator filed a complaint against the various lawyers, Harrison County and the Harrison County Chancery Clerk since $400,000 was missing from the estate.  The Miss. S, Ct. affirms. Even though the ward was under a disability, her daughters were coconservators of her person and could have filed suit when they learned the money was missing.

Timothy Ronk v. Statedeath penalty – Ronk received the death penalty in the killing of  Michelle Craite whose body was discovered in house on fire.  The pathologist determined that she had been stabbed before the fire was set.  Ronk was Craite’s boyfriend and lived with her and, thus, became the primary suspect especially after it was learned thet Craite’s debut card was used after her death. And Ronk had a girlfriend in Florida.  When the girlfriend was interviewed she told law enforcement that Ronk had told her that that he and Craite had gotten into an argument when he attempted to leave for Florida, and Craite had tried to attack him with a knife. Ronk disarmed Craite, stabbed her and started the fire. On appeal Ronk raises a bunch of issues including the failure to giver certain lesser included instructions,  The Miss.S.Ct. affirms.

Jordan Davis v. State – insufficient evidence –  The owners of a cattle farm discovered that they were missing an old John Deere tractor, a cotton trailer, and two old trucks.   The tractor, trailer and one of the trucks was located at a scrap metal facility.  Jordan Davis and Bradford Wren had sold the items to the scrap metal facility.  Davis was charged with auto theft, grand larceny and receiving stolen property. At trial, he was found guilty on only the receiving stolen property charge.  On appeal, he argued that he was charged in violation of MCA Sect. 97-17-70 which forbids charging a defendant with stealing property and receiving stolen goods in the same indictment.  The state confessed error and the case was reversed and remanded for trial on the receiving stolen goods charge.  Davis sought cert. arguing that the conviction should be vacated because the evidence was insufficient under Jackson v. Virginia. “In this case, the evidence established only that Davis was in possession of Dents’ recently stolen tractor and sold it for scrap. Aside from testimony suggesting that Davis himself stole the tractor–i.e., testimony that gouge marks were in the road leading from Dent’s farm to the scrap metal shop (Tr. 18-19, 36)–the State presented no evidence as to how Davis came to possess the tractor.” For non-lawyers, a case reversed because the verdict was against the weight of the evidence is remanded for a new trial. If the evidence was insufficient as a matter of law, the state is not allowed a second crack of proving the case and is not allowed to retry the defendant.  On cert., the Miss.S.Ct. reverses and renders.

Under Section 97-17-70(3)(a), when a defendant can be charged with either stealing or receiving the same property, the State must opt to charge the defendant with either stealing or receiving the property. Davis has been tried once in Claiborne County for stealing and receiving the same property. He has been tried and acquitted of stealing the property. Thus, he cannot be retried for receiving the property under the plain terms of Section 97-17- 70(3)(a). Therefore, we reverse Davis’s conviction of receiving stolen property and render judgment in his favor.

Nekole Bennett v. Highland Park Apartments – premises liability – Bennett and her children were residing at Highland Park Apartments when they were the victims of a home invasion. The assailants were never caught. Two weeks later the Bennetts filed a premises liability complaint against the apartment complex. Judge Weill, as is his wont, granted summary judgment for the defendants. On appeal, the Court of Appeals reverses finding that the plaintiffs’ expert noted that there were 1000 calls for service at the complex within a five year period (several involving guns) and that reasonable jurors could have found that the lack of an armed security guard and a gate the was not in working condition were substantial factors in bringing about the harm to the plaintiffs. Plaintiffs also asked that Weill be recused but the Court finds that the request came too late.  The Miss.S.Ct. grants cert.”to expand on the Court of Appeals’ analysis on the summary-judgment issue, and to explain why the expert testimony created a triable issue.”

Our Lymas holding should be understood to hold that a plaintiff may not prove that a premises owner’s failure to provide security measures proximately caused injuries based on cursory and unsupported statements of causation by an expert witness. But where, as here, that expert testimony delves into the detail of how the premises owner’s failure to employ those measures caused the injury, and provides support to show that those measures would work to prevent the injury, the plaintiff is at least entitled to submit that issue to a jury.

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