Decisions – Miss.S.Ct. – Dec. 17, 2015

Lampkin Construction Company v.  Sand Specialties  –  breach of contract – Sand Specialties sold  sand mining equipment to Lampkin Construction for $350,000. The agreement provided that Sand Specialties would hold title to the equipment until the $350,000 was paid in full and, if the buyers failed to pay, they were required to return the equipment and forfeit the $100,000 payment.  The equipment was delivered, but the full contract price was never paid. Sand Specialities filed suit.   After a trial, the judge entered a directed verdict in favor of Sand Specialities as to ownership of the equipment, and the jury awarded Sand Specialities $92,000 in damages. Lampkin Construction appeals.  The Court affirms.

In re the Matter of the Estate of Sarath Sapukotana –  validity of divorce – Sarath Sapukotana  and PalihawadanageRamya Fernando were married in Sri Lanka in 1992. Sarath moved to the United States a year later. In 1995, a Florida court entered an uncontested divorce decree, dissolving the marriage of Sarath and Fernando. Sarath then married Martha Gay Weaver in Mississippi in 2004. Sarath died in 2008 from injuries which led to a wrongful death suit. He did not have a will.   Martha settled a wrongful death claim. Meanwhile  Fernando claimed the divorce was fraudulent and sought to oust Martha as an heir.  Fernando filed a motion to vacate the chancery court’s decision to appoint Martha as administratrix of Sarath’s estate. The chancery court dismissed Fernando’s motion and held that Martha was the rightful beneficiary to Sarath’s estate. Fernando appeals. “Because the Wayne County Chancery Court lacked authority to vacate the 1995 Florida divorce decree, we affirm the decision of the chancery court.”

Mary Meeks v. Hologic, Inc. –   adding a new defendant under MRCP 15 –   In 2008. Meeks underwent an outpatient diagnostic hysteroscopy.  Two days later she complained of pain.  Apparently she suffered a burn injury.  SHe the doctor and the clinic.   A year later she added as a defendant the manufacturer, Hologic,  of the device used during the surgery.  The court dismissed Hologic finding that Meeks’ amended complain violated MRCP 15(a)

because responsive pleadings were filed to the original complaint and Meeks was required to obtain leave of court or written consent from the adverse parties before filing the SAC. The circuit court also held that Meeks’s FAC did not relate back to the original complaint’s filing date under Rule 15(c), finding that Meeks had offered no proof that Hologic had notice of the original complaint within 120 days of its filing. The circuit court additionally found that Meeks’s FAC was barred by the statute oflimitations, because Meeks had failed to serve Hologic with the FAC and because the statute of limitations consequently resumed running and expired on January 26, 2010.

Meeks filed an interlocutory appeal which was granted.  However, the Court affirms the dismissal of Hologic.

Sharkey-Issaquena Community Hospital v. Andersonadditional time for discovery – The Anderson filed a lawsuit against the hospital alleging that when  Alan Anderson presented with the symptoms of a stroke, the hospital failed to diagnose and admit him.   The Hospital moved for summary judgment arguing that the Andersons did not have proof that it breached the standard of care.   On that same day, the Andersons filed their belated expert designation as well as a motion for additional time to file their expert designation (the judge had entered a scheduling order and the time for designating experts had lapsed).  “The trial court granted the Andersons’ motion for continuance and denied both SICH’s motion to strike expert designation and its motion for summary judgment, holding that the denial of summary judgment was ‘without prejudice to its being renewed at a later date.'”  The Hospital requested an interloc. appeal which the Court granted. In the end, though, the Court affirms finding the the trial court did not abuse its discretion in granting the continuance.

Ginger Pope v. Dr. Charles Brock and Dr. Steven Clark –  untimely appeal – Pope filed a wrongful death claim under the MTCA.  On March 24, 2006, the trial court granted summary judgment in favor of Drs. Brock and Clark. Despite  the fact there was a remaining defendnat (the hospital)  Pope filed a notice of appeal which she later voluntarily dismissed.  Approximately two months later she filed a motion for reconsideration of the order dismissing the doctors. The court denied the motion on October 9, 2006.  On November 3, 2006, the trial judge signed an order certifying the March 24, 2006, judgment as final pursuant to Rule 54(b).  The clerk, though, failed to mail it to the parties. A bunch of other stuff happened. (Is there anyone on the planet  who has  time to summarize this case properly? Seriously).  On September 27, 2010, the hospital was  dismissed with prejudice.  A bunch more stuff happens – stuff too tedious for me to recount here (just read it if you just have to know). The Court ends up dismissing the case finding that the trial court erred in allowing Pope additional time to file her notice of appeal.

Markeith Fleming v. Statereversed for failing to grant a continuance –  Fleming was accused of shooting into a car in Kosciusko killing one and injuring the other.  Fleming told law enforcement he was at his girlfriend’s house in Winona at the time. To establish Fleming’s presence at the shooting, the State used Fleming’s AT&T cell-phone records.  The State had provided Fleming with copies of his cellphone records in  March 2013.  In August  2013, the State notified the defense that it would have Michael Lynchard testify as AT&T records custodian.  The State later changed that to Thomas Gandy.  About two weeks prior to trial, the State told the defense it would have  Gandy, an AT&T engineer, to testify about cell towers and cell-tower locations, calls and text messages.  Five days before trial, the State provided Gandy’s CV.   Fleming moved for a continuance to obtain its own expert. The trial court denied it.  The State had Gandy testify but, ostensibly, not as an expert but his testimony went beyond merely reading the docs.  On appeal the COA affirmed.  Meanwhile the Mississippi Supreme Court reversed the case on which the COA relied. Collins v. State, 172 So. 3d 813, 825 (Miss. Ct. App. 2014), rev’d, 172 So. 3d 724 (Miss. 2015). So, on post conviction, the Miss.S.Ct. reverses.

So the circuit judge and the Court of Appeals erred by concluding that Gandy provided no expert testimony, and that the State’s disclosure of the phone records in March 2013 provided sufficient notice of the State’s intent to use expert testimony to establish Fleming’s whereabouts at the time of the murder. Because the State ambushed Fleming with this expert testimony shortly before trial, his request for a continuance to consult with an expert of his own should have been granted.

Freese and Goss v. James Alford –   This is an interloc. involving a dispute over whether circuit or chancery is the correct court in this massive fight over attorneys fees in PCB litigation (if schadenfreude is your thing – and isn’t it everyone’s?  – this is the case for you).   Since the appellants have confessed that circuit is the proper court in a related case, the Court dismisses the interloc.

Moseley v. Moseley  – the Court had granted cert, in this case involving the SOL (7 years) for breach of settlement agreement in divorce.  It now decides that cert. was “improvidently granted.”

The Court grants cert in Propst Pittman v. Ty Pittman  (the link is to the COA opinion) involving a  cruel and inhumane treatment divorce .   Propst and Ty married in 1992, had two kids and separated in 2000.  Propst filed for divorce on the grounds of cruel and inhumane treatment.  At the close of her evidence, the trial court granted Ty’s motion for involuntary dismissal.  The COA affirms.




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