Decisions – Miss.S.Ct. – Jan. 14, 2016

Alesa Crum v. City of CorinthTort Claims Act/sewage – Crum filed a lawsuit against the City of Corinth after sewage backflowed into her home for a second time and the City had supposedly fixed the root growth that caused the first such backflow.  The court dismissed it based on the Tort Claims Act.  The Miss.S.Ct reverses.

Mississippi Administrative Code Section 11-6-1.1.4(A)(18)imposes a ministerial duty on permitted sewage system operators to properly “operate, maintain, and when necessary, promptly replace all facilities and systems of collection, treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of [the] permit.” See Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1113 (Miss. 2015). Taking as true Crum’s allegation that “[t]he backflow of sewage into [her] home was due to the fault of [the City in] not properly maintaining the sewer system and/or its manholes and/or the City of Corinth causing the sewer system and/or manholes to flood 6 by action of the City of Corinth and/or its employees,” it cannot be said to a certainty that Crum would not prevail under any set of facts that could be proved in support of her claim.

Stribling Investments, LLC v. Mike Rozier Construction Company  – construction negligence/builder-vendor rule – This concerns the building of a Dollar General store in Gluckstadt.  Rozier specializes in building Dollar General stores. Rozier creates a development entity to buy a piece of property. The Mike Rozier development entity (in this case D.G. Gluckstadt) enters into a verbal construction contract with Mike Rozier Construction to build the store which he then leases to Dollar General.  Once the store is completed, the Mike Rozier development entity sells the store to a third party.  Stribling purchased the Gluckstadt store after it had been built in 2006.  Over he years, the lot began to fail. In 2012, Stribling hired Ladner Testing (which had previosuly advised Rozier on the site’s soil and how to build a parking lot on said soil)  to determine what was causing the parking lot to fail.  Ladner  identified numerous deficiencies with the construction of the parking lot, particularly the failure to follow Ladner’s December 2005 directions as to the construction of the parking lot.  That same year, Stribling sued Rozier.  Rozier moved for summary judgment which was granted and Stribling appeals.   Rozier argued that his construction company built the parking lot according to the specifications provided by D.G. Gluckstadt. The Miss.S.Ct reverses holding that the trial court should determine whether the   builder-vendor rule applies to Mike Rozier Construction Company given that no evidence exists proving that Rozier Construction warned D.G. Gluckstadt about the defects in the subsoil.

Jerry Wayne Atwood v. State –  application of the 2014 amendment regarding technical violations of probation in a revocation proceeding that took place one day after the amendment became effective –   In 2014, Atwood pleaded guilty to one count of grand larceny in Wayne County. He was sentenced to serve ten years with nine years eleven months suspended and thirty days to serve.  The Court ordered various conditions of post-release supervision including the payment of $3,682 in restitution, costs and fees. In May of 2014, MDOC moved to revoke Atwood’s probation because he had been ejected from the Hinds County Restitution Center.  The trial court revoked Atwood’s probation and sentenced him to serve nine years and eleven months.   Atwood filed a motion for pcr  arguing that the legislature amended the statute governing revocation of probation  and it became effective on July 1, 2014 – the day before Atwood’s revocation hearing.  The amendment, contained in MCA Sect. 47-7-37(5)(a), states that   “[i]f the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation[.]”  Atwood argues that the trial court’s imposition of a sentence greater than that authorized by MCA Sect. 47-7-37(5) is illegal.  The Miss.S.Ct. reverses finding that the trial court’s determination that the amendments were unconstitutional was error. The fact  that Atwood was granted parole during the pendency of the appeal does not make the matter moot.

U.S. Bancorp v. Brennan McMullanvenue –  The McMullans agreed to purchase a mobile home from the Johnson Group at the Johnson Group’s place of business in Lauderdale County. The Johnson Group secured financing for the purchase through the Bank. The loan was to be finalized upon delivery of the mobile home to the McMullans in Smith County, an event that never occurred. On March 13, 2013, Brennan McMullan filed a complaint in Smith County Circuit Court against the Johnson Group and the Bank, alleging the defendants had finalized the loan without his  consent and before delivering the mobile home, causing the loan to be included on the McMullans’ credit report.  The Defendants objected to venue in their answers and via motion.  The trial court denied the transfer holding that the Defendants waived it by failing to pursue.  The Miss.S.Ct. granted an interlocutory appeal and reverses. “The McMullans center their argument around the year that elapsed between the filing of the original answer and the motion to transfer. They fail to consider their successful request to amend the complaint and their subsequent delay in filing their amended complaint.”

Ike Thrash and Dawn Investments v. Deutsch, Kerrigan & Stiles, LLP negligent foreclosure –  Coastal Land Development Company and Richard Landry purchased two pieces of property financed by U.S. Capital. U.S. Capital foreclosed with  Joel L. Blackledge, an associate with DKS, conducting the foreclosure sale.  Ike Thrash, the managing member of Dawn Investments, was the only bidder and  offered to pay $5.6 million for both properties.  Hours before the transfer of funds,  Coastal filed for Chapter 11 Bankruptcy.  Subsequently, Thrash and Roemer discovered that the foreclosure sale had been conducted improperly because it took place one day after the last day of publication rather than one week as required by law. Dawn Investment filed suit.  According to the statute, the foreclosure sale must occur one week following the last day of publication; however, the foreclosure sale was conducted one day after the last day of publication.

Dawn filed suit against U.S. Capital and Blackledge.  Coastal brought suit against Dawn  and Blackledge.  Dawn and Coastal settled; Coastal agreed to sell the properties for approximately $11 million.  Dawn  entered into a Settlement Agreement with U.S. Capital, agreeing to pay U.S. Capital an additional 425,000. U.S. Capital agreed to assign all of its claims against Coastal and Landry to  Dawn Plaintiffs.  DKS then filed suit in circuit court against  Dawn  and U.S. Capital.  Dawn Plaintiffs counterclaimed. Both sides moved for summary judgment.  The trial court granted DKS’s motion, dismissing all of Dawn’s  claims. Dawn appealed.  The Miss S. Ct. affirms finding that DKS owed no duty of care to  Dawn, a third-party bidder at the foreclosure sale, in the performance of the foreclosure sale.

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