Decisions – Miss.S.Ct. – July 2, 2015

Larry Jarrett and Dixie Products Company v. Robert Hugh Dillard   employer’s personal liability for failure to obtain workers comp. insurance –  Ray Dillard  was injured in June 1997 while working at  Dixie Products.  He was awarded temporary total disability, medicals and eventually  $125,000 in permanent total disability benefits. Neither party appealed. During the proceedings, Dillard died.  Also, his attorney notified the Aj that there was an issue as to whether Jarrett should be personally liable for failing to carry workers compensation insurance.  In  2009, the Estate filed a complaint on behalf of the estate against Jarrett and Dixie Products on the grounds that Dixie did not have insurance.  The circuit court court found for the  Estate’s  and entered a judgment of approximately $223,000 against Jarrett and Dixie Products “jointly and individually.” Jarrett appeal[ed]. The Court of Appeals  reversed on the grounds that the Estate’s claims were barred by  res judicata and the statute of limitations.  The Mississippi Supreme Court reverses the COA and affirms the circuit court.

Vance Drummer v. State –  whether felony that occurred at the same time as offense could be used to enhance punishment – Drummer was found guilty of two counts of grand larceny and one count of attempted grand larceny. Law enforcement attempted to stop Drummer when he ran a four-way stop. A chase ensued. When Drummer was caught, it was determined that the van, trailer and John Deere lawnmower he had been hauling were stolen from a Columbus business. It turned out that the place where the van had been stolen from had a truck that sustained damage from someone trying to steal it.   On appeal, Drummer argued among other things that the jury should not have been given a flight instruction and that  the felony flight conviction he acquired in fleeing from law enforcement in this case was so intertwined with the convictions in this case, that the court should not have considered it as a separate predicate offense for the purpose of finding him an habitual. The Court of Appeals finds no issues of merit. On cert. the Miss.S.Ct. affirms in part and reverses in part.  “We find that the trial court erred when it sentenced Drummer as an habitual offender. Drummer’s flight from police arose from the same nucleus of operative facts as the larcenies for which he was convicted and therefore should not have been used as a predicate felony pursuant to Section 99-19-81.”

Steven Galle v. Isle of Capri Casinos –  McArn employment claim – Galle filed suit against the Isle of Capri for wrongful termination.  The trial court granted summary judgment for the casino and the Miss. Ct. of Appeals reverses “as it is uncontested that Galle was terminated after reporting to the Mississippi Gaming Commission that the Casino had him managing the poker room without a required license. Moreover, the trial court erred in going beyond the motion for summary judgment to dismiss Galle’s other causes of action.”  Galle started working in the poker room of the Isle of Capri in 05.  He was promoted to poker room manager by 2008 but that position required a “key employee license” from the Gaming Commission. Galle  was denied such a license because he failed to disclose a 1994 arrest on the application. He was  nominally demoted o supervisor. In 2011, Galle was issued a new ID badge by the casino that identified his  position as “manager.”  Galle claimed he brought this to his superiors’ attention, but he was told to wear it anyway.  A few months later, a Gaming Commission inspector noticed Galle’s badge and the Commission sent a letter to the casino alleging that Galle was illegally acting as manager and demanding that it remove him from that role. The Casino subsequently fired Galle for allegedly misrepresenting his position.  The COA reversed “as it is uncontested that Galle was  terminated after reporting to the Mississippi Gaming Commission that the Casino had him managing the poker room without a required license. Moreover, the trial court erred in going beyond the motion for summary judgment to dismiss Galle’s other causes of action.”  The Miss.S.Ct. reverses the COA on the grounds that Galle participated in the allegedly illegal activity.

Kenneth Crook v. City of Madison –  –  Madison’s ordinance regarding rental property – Crook was found guilty of two violations of a Madison City Ordinance requiring landlords to obtain licenses for their rental houses as well have them inspected. “To obtain the rental license, owners must submit a written application with a licensing fee of $100 per rental unit to the City’s building official. Further, owners must post a $10,000 bond, collateral, or letter of credit per rental unit as surety for any future correction orders that may be issued by the building official pursuant to RIPLA. The rental license is valid for one year. Upon obtaining a rental license, owners must be issued a current and valid certificate of compliance that must be displayed at each rental property.”   The City cited Crook for not getting a license for a property on Cypress Drive.  Crook contended he did not need to get a license because the property was being leased via  a rent to own contract. He also challenged the ordinance as unconstitutional. The Court of Appeals affirms.  The Miss.S.Ct. reverses and renders a judgment of acquittal.   “Because we find that RIPLA’s warrant provision is insufficient to safeguard landlords’ and tenants’ right of freedom from unreasonable searches, we find RIPLA’s inspection provisions to be unconstitutional.”

Michael Deon Taylor v. State Ineffective assistance in failing to object to extensive cross on priors – Taylor was found guilty of one count of possession of stolen property, a skid steer. The pros. amended the indictment to change the date on which Taylor was alleged to have possessed the skid steer and to add a habitual enhancement. The court sentenced Taylor as an habitual to ten years without parole. Puckett Machinery leased a skid steer to Chain Electric which was using it on a job site in Hattiesburg. The equipment disappeared sometime around April 18, 2011. In June, Puckett Rental received a call from a man named Alex Walker who needed his skid steer serviced at a job site on Robinson Springs road. When a Puckett employee put the serial number of the skid steer into the computer, the computer flagged the serial number as belonging to stolen equipment. The computer also identified the owner of the skid steer as Puckett Rents, a subsidiary of Puckett Machinery. Madison police interviewed Alex Walker and he told them he had purchased the equipment from a white man with a jack o’lantern tattoo on his arm. The transaction, Walker said, took place near the What-A-Burger on County line Road. Law enforcement asked Walker to assist them in finding the man who had sold him the skid steer. When Walker was shown a picture of Michael Taylor, who is black, he identified him as the man who sold him the skid steer in exchange for a jeep, another car and $10,000. Walker said that he lied about it being a white man because he was scared. Taylor testified that he had known Walker for about two years and had done some work for him on approximately three jobs. On the first job, Walker did not start out with a skid steer but brought one to the job site around the third day.
The COA affirms but with a dissent  by J. Irving joined by Lee and Ishee and, in part, James, in which Irving finds that the case should be reversed because Taylor’s trial counsel failed to object when the State cross-examined him extensively  on his numerous priors.  The Miss.S.Ct reverses for the reasons urged by Justice Irving.

Milton Harper  v. Banks, Finley and White    –  workers comp./application to president of company which does not provide  workers comp. insurance –   Harper was a partner and president of Banks, Finley, White & Co. accountants.  In 1995 he was diagnosed with high blood pressure.  Afterwards, Harper intermittently took his blood pressure medication and, in 2000, he suffered a stroke. When he returned to work, he worked fewer weekends. In 2001, his wife found him in the bed non responsive,  He was taken to the hospital where he died from another stroke.  Harper’s family filed two petitions to controvert – one for each stroke.  The AJ found the strokes to be related and combined the cases. The AJ found the strokes to be work related. The Commission found that the strokes were based on a preexisting condition and apportioned the benefits by 65%. On appeal, the Circuit Court agreed with the Commission but found that Harper’s decision (as president of the company) not to obtain workers compensation insurance disqualified him from receiving benefits. On appeal, the Court of Appeals held that MCA Sect. 71-3-79 was not ambiguous in that it stated that an executive officer can elect to exclude himself if he does so in writing.  Here there was no writing. Thus, the Commission’s finding that Harper did not opt out was supported by substantial evidence.   There was also substantial evidence to support the commission’s decision that Harper suffered a compensable injury. The Court of Appeals reverses and reinstates the Commission’s judgment.  On cert., the Miss.S.Ct. affirms in part and reverses in part.

On writ of certiorari, we hold that the Court of Appeals erred in applying Section 71-3-79 of the Mississippi Code to the facts of this case. Because Banks did not have workers’ compensation insurance coverage, there was no coverage for Harper to opt out of in writing as contemplated by Section 71-3- 79. Instead, we hold that Section 71-3-52 of the Mississippi Code controls the analysis of this  case: because Banks had more than five employees, it was required to obtain workers’ compensation insurance and provide workers’ compensation benefits to its employees. Moreover, we hold that the Workers’ Compensation Commission’s finding that Harper suffered a fatal injury through the course of his employment at Banks is supported by substantial evidence.

Richard Chapman v. State –   inmate allowed evidentiary hearing where he never had a direct appeal and transcript of trial is missing – “Richard Chapman currently is serving a life sentence in the custody of the Mississippi Department of Corrections. He has never had a direct appeal through no apparent fault of his own, and his trial record allegedly has been destroyed. While Chapman has filed multiple motions for post-conviction relief (PCR), no appellate court has ever addressed the merits of his claims, despite potential violations of his constitutional rights. Under these peculiar circumstances, we find that, in the interests of justice, Chapman is entitled to an evidentiary hearing so that he and the State have an opportunity to reconstruct his trial record.”

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