Decisions – COA – June 30, 2015

Mississippi Division of Medicaid v. Melissa PittmanMedicaid/made whole rule – Melissa Pittman’s child, Javas, was riding on the hood of a car when it crashed.  He was severely injured to the tune of $170,000 in medical expenses.  Since the driver had no insurance, she sought recovery against her own insurance; she had $25,000 in uninsured motorist coverage.  Pittman initiated a guardianship proceeding.   Medicaid appeared in the guardianship and asserted a $10,308.04 lien against the settlement proceeds. The chancellor required Melissa to also notify two other potential lien holders: AMR, which had billed $1,225 for air transport, and CHIPS, which had covered $42,228.18 of Javas’s medical expenses. Neither AMR nor CHIPS ever appeared in the matter and were deemed to have waived any lien or right to subrogation.  Medicaid, however, did appear. The chancellor denied Medicaid any recovery under the “made whole” rule.  The COA reverses.

Despite his good intentions, the chancellor erred when he disallowed Medicaid’s claim based on the equitable made-whole doctrine. Medicaid’s subrogation right exists by virtue of statute. So whether Medicaid could assert its right was strictly a matter of statute, which could not be disregarded simply because its effect seemed unfair. Because the chancellor’s order contained the express condition that Melissa not reimburse Medicaid from Javas’s settlement—a clear violation of section 43-13-125—that order must be reversed.

Sharon Harris v. The National Oak Park Alumni Association private association’s right to vote out president –  Harris was elected president of the NOPAA in  2012.  In May  2013, she was told that  NOPHSAA’s Board impeached her during its meeting earlier that morning. Harris filed suit claiming that the Board’s vote failed to follow the due-process requirements afforded by NOPHSAA’s bylaws and Robert’s Rules of Order. The chancellor ruled against her.  The COA reverses for the chancellor to make further findings. “The record on appeal fails to reflect what NOPHSAA’s Mississippi bylaws require regarding a quorum, voting-eligibility requirements, the Board’s meeting procedures, and the validity of telephonic meetings and telephonic voting. Accordingly, we must remand this case for the chancellor to provide findings as to whether the Board followed applicable bylaw requirements for a quorum, meetings, and voting when the Board voted to dismiss Harris in a meeting where some members attended and voted by telephone.”

Richard White v. State burglary instruction failing to set forth the elements of the underlying crime –  White was found guilty of burglary to commit either larceny or assault but not guilty of aggravated assault.  He was sentenced to 25 years.  On appeal he argues that the trial court erred when it did not instruct the jury as to the elements of larceny and assault.  The COA affirms.  Four justices dissent given the Mississippi Supreme Court’s opinions that this is error.

Donna Price v. Timothy Snowden –  housing allowance as part of income for child support – Donna and Tim never married but had a son, Landen.  In 2004, the chancellor  awarded Donna sole physical custody of Landen, gave Tim visitation rights, and required Tim and Donna to share joint legal custody on a limited basis. The court also  required Tim to pay child support and college-education expenses: [Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines. Said child support amount shall be adjusted appropriately on March 1st of each year beginning 3/1/04 based upon the income of [Tim] as documented for the preceding year.   In  2013, Tim filed a petition to modify child support alleging that Landen was eighteen years old and would soon be emancipated. He then stopped paying  child support and refused to pay one-half of Landen’s spring college tuition because Landen was not a full-time student. Donna filed  a petition for contempt regarding the unpaid child support and college expenses.  In discovery, Donna learned that Tim received a housing allowance and “sea pay” from his employer, the United States Navy. Neither his housing allowance nor his “sea pay” was taxable to Tim; thus, these amounts were not reported on his federal-income-tax form. Tim acknowledged that his “sea pay” should have been included in his child-support calculation, and he agreed to pay Donna fourteen percent of that amount. Donna argued that she was also entitled to receive fourteen percent of Tim’s housing allowance during the years since 2004.   After a hearing,  the chancellor ruled that Donna should receive 14% of Tim’s sea pay but not his housing allowance.    Donna appeals and the COA reverses finding that she should have also been entitled to a portion of Tim’s housing allowance.

Mississippi Department of Revenue v. Heath’s Aviation –   use tax – Heath Aviation repairs and services avionics equipment for aircraft. In 2008, the MDOR assessed Heath a use tax and penalties totaling almost $150,000.  MDOR’s use-tax assessment was based upon its conclusion that Heath Aviation purchased parts, equipment, and other tangible property from out-of-state vendors for which no sales tax was paid. A chancellor reversed the assessment.  On appeal, the COA reverses.

Here, Heath Aviation purchased tangible personal property from out-of-state vendors for parts, for which no sales tax was paid; therefore, it was potentially liable for use tax on these items. Only a statutory exemption could relieve the company from tax liability, and there is none. Prior to 2006, Heath Aviation, as a holder of a sales-tax permit, could purchase its parts wholesale. Therefore, it did not pay sales tax to Mississippi vendors and was not liable for use tax on the parts it purchased out-of-state. See Miss. Tax D. Reg. 101 (all sales at wholesale, other than the sale of beer, alcoholic beverages, or food and drink for human consumption, are exempt from sales or use tax). However, once Heath Aviation was no longer subject to collection and payment of sales tax on the gross income of its business, it was not entitled to the exemption for wholesale purchases.

Fillingame v, Mississippi State Fire Academy – breach of contract/public academy – the Mississippi State Fire Academy refused to reallow Fillingame to reenter the program even though its handbook required that it do so.  A circuit court judge ordered the Academy to allow Fillingame reentry pursuant to its 2008 handbook.  When Fillingame graduated, the Academy refused to give him the certificate showing that he completed the accredit course and Fillingame filed a motion for contempt.   The circuit court denied relief an dthe COA affirms finding that Fillingame should have filed a new lawsuit and not a motion for contempt.

Michelle Durr v. City of Picayune – zoning – Durr purchased a building in 2008 that had been used as a furniture store.  Durr already owned the building next door from which she operated a hair salon.  Durr intended to use the new building for a sandwich shop. Durr contended that the former owner told her the property was zoned C-2 for commercial use.  SHe applied to the City for various permits.  In 2009, Durr filed an application with the city to turn her two properties into one commercial lot. The City denied the request.  Over the next 4 years, Durr spent $70,000 on her sandwich shop.  In 2012, the City approved a new zoning map which classified the property as residential.  When Durr requested her next building permit, it was denied and she was told she needed to apply for a zoning change.  Instead, Durr sued under the Tort Claims Act.   The trial court granted summary judgment for the City. The COA reverses because there is a dispute as to whether the property was zoned residential or commercial prior to 2012. .

pro se PCRs affirmed.

Kelly Mann v. State

Alvin Thomas v. State

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