Decisions – Miss.S.Ct. – Oct. 1, 2015

Randy WIlliams et al v. Clark Sand –   suing a dissolved foreign corp. – Seven people including Williams sued Clark Sand in 2013 alleging that they suffered lung damage from using Clark’s silica. Clark, a Florida corporation, dissolved in 2008.   Clark Sand argued that under Florida law, the plaintiffs had four years to file suit after the dissolution.  Clark Sand admits that “[t]he capacity of a dissolved foreign corporation to be sued in Mississippi courts has not been addressed by Mississippi appellate courts. However, other courts routinely determine the capacity of dissolved foreign corporations to be sued by applying the law of the state of incorporation and dissolution (here, Florida), as did the circuit court in these cases.”  The trial court dismissed Clark Sand, Williams appealed and the Miss.S.Ct. affirms.

At common law, when a corporation dissolved, it no longer existed, and it could not be sued. But because of the harshness of this rule, Florida, like most states, has adopted a corporate-survival statute that allows plaintiffs to bring suit against a Florida corporation for up to four years after dissolution. This rule applies to claims that were unknown to the corporation at the time of dissolution. Here, sixteen plaintiffs sued Clark Sand Company, Inc., a Florida corporation, more than four years after the corporation’s dissolution. The circuit court judge therefore sustained Clark Sand’s motion for summary judgment. Finding no error, we affirm.

Kay Thornhill CFNP v. Christopher Ingram SOL not tolled during pendency of complaint dismissed for failure to prosecute – Jennifer Ingram was 22 when she died in 2001 at Forrest General Hospital.  She had been treated the day before her death by Nurse Practitioner Kay Thornhill.  Her estate filed a wrongful death lawsuit against various defendants including Thornhill and Forrest General on August 30, 2002. Ingram admits the case became dormant after a four year period because his attorney was working on other matters.   At that point Thornhill filed a motion to dismiss for failure to prosecute which the judge granted without prejudice.

Ingram filed another Complaint on December 28, 2010 against all three defendants.    On December 11, 2012, Thornhill filed a  Motion for Summary Judgment on statute of limitations grounds arguing that there was no tolling when  a case is dismissed “without prejudice” for lack of prosecution under Rule 41(b).  The Court denied it.  She later filed a second motion for summary judgment on the same grounds which the Court again denied but treating the motion as a Rule 60(b) motion.  The Miss.S.Ct. reverses finding that it was error to treat the second motion for summary judgment as a Rule 60(b) motion because Rule 60(b) is reserved for final judgments. Moreover, the SOL is not tolled during the pendency of a complaint that is dismissed for failure to prosecute.

Irrespective of who moves to dismiss, the rationale that one who files a complaint but takes no action should be treated exactly the same as one who never filed the complaint applies with equal force. In both cases, the plaintiff has sat on his rights and his dilatory action should not be saved by the mere filing of a complaint without actual prosecution.

Anthony Windless v. State instruction in capital murder case – Windless was convicted of capital murder in the Feb. 2011 death of  Charles Presley. Windless, who lived nearby, was a suspect and when questioned, he confessed to haven broken into Presley’s home and when Presley returned home during the burglary, Windless struck him on the head repeatedly with a flashlight.  Windless was charged with capital murder with the underlying offense of burglary to commit larceny.  On appeal, Windless argues that the court erred in not defining larceny for the jury. The Miss.S.Ct. holds that that “the elements of the crime which the defendant intended to commit are not elements of burglary” and, thus, the jury need not be instructed on them.  Windless also raises some ineffective assistance claims –  that his attorney (1) failed to present an opening statement, (2) failed to object to the State’s jury instructions, (3) elicited prejudicial testimony concerning his polygraph examination, and (4) elicited prejudicial testimony concerning his criminal record.    The Court finds that these issues are better addressed on post conviction.

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