Decisions – COA – Jan. 19, 2016

In the Interest of B A H and K M B: Becky Hall v. Jackson County Dep’t of Human Services termination of parental rights – Becky was arrested on drug charges and her two babies were placed with DHS. Becky cleaned up but her meth-cooking boyfriend didn’t and even though DHS warned her that her continued relationship with him would endanger her ability to get her children back, she continued to live with them.  The Court terminated her parental rights and she appeals. The COA affirms.

Michael Kirby and William T. Heimer v. Bancorp South   – guaranty –  Kirby and Heimer were members of Mont St. Michel LLC, along with Chad Knight, who was the manager.  Mont St. Michel was in the  business of residential real-estate development in Madison County.   BancorpSouth loaned the company  $738,187.   Kirby and Heimer each executed separate unconditional and continuing guaranties ensuring the repayment of the debt.  WHen the company defaulted, Bancorp foreclosed and purchased the property for $400,000 at a time when the payoff balance on the note was $789,829.94.   BancorpSouth filed suit against Kirby and Heimer.  The court found that  Kirby and Heimer were jointly and severally liable for the amount of $464,445.74 plus attorney’s fees in the amount of $54,197.27. On appeal, Kirby and Heimer argue, among other things,  that  the court erred in finding that they waived any and all defenses as to fair market valuation.

The Mississippi Supreme Court recently pointed out that “[u]nlike suits where the lender sues the primary borrower, an individual guaranty . . . does not require foreclosure or fairness of price. The guarantor is immediately liable upon the borrower’s . . . default. . . . Thus, [the guarantor] is incorrect when she claims [the lender] was required to show the foreclosure sale price was fair.” Bosarge v. LWC MS Props. LLC, 158 So. 3d 1137, 1143 n.5 (Miss. 2015).

The COA affirms.

James Brady v. Officer James Hollins, Warden Raymond Byrd, and MDOC –  inmate disciplineBrady was serving a 22 year sentence for drugs when he was found guilty by MDOC of fighting with another inmate in May 2014. Brady challenged the finding in the Rankin County Circuit Court. The circuit court affirmed MDOC’s decision.  Brady appealed and the COA affirms.

David Lee Moore v. State – confrontation clause – Moore was convicted of drive by shooting and aggravated assault in Clarksdale.  On appeal he argues that his Moore argues that his Sixth Amendment right to confront witnesses was violated because Burchfield, the trace-evidence analyst who testified about the results of the gunshot residue test, did not personally conduct the testing.  The COA affirms because Burchfield testified that he technically reviewed the other analyst’s results to insure accuracy.

Maxine Smith v. MDEStimeliness of appeal of MDES ruling – After the MDES Board decided to deny her benefits by letter dated  March 28, 2014, Smith did not file appeal for four and a half months later.  She claims she did not get the letter but offered no proof. The COA affirms.

Linda Carlson v. Larry Brabhamdivision of assets of nonmarried couple –  Linda and Larry lived together for seven years until 2019 when Larry kicked Linda  out of the house.  In 2011, Linda filed a complaint in chancery court  alleging causes of action against Larry  for “sweat equity,” “joint venture,” “fraud,” “unjust enrichment,” “partnership,” “constructive trust,” and “equitable division” and seeking money from her alleged interest in the house in which they lived and a logging business.  At trial, the judge granted Larry’s motion to dismiss after Linda rested her case in chief.  Linda argues that Larry promised that they were partners and she relied upon his promises when she shelled out money for various things.  Larry claims he repeatedly told her that her name wasn’t  going on anything until she divorced her husband. The COA affirms.

William Kelley v. Corinth Public UtilitiesTort Claims Act SOL –  Kelley was developing a subdivision.  He  accepted a bid from the Corinth Gas and Water Department to  install water lines which it did but Kelley alleged that the Department  caused significant damage to the property.  Kelley claimed he had to pay $310,000 to repair the damage done by the Department and that ultimately he lost the property in foreclosure as a result of the Department’s actions. He filed a lawsuit sounding in tort against the Department.  He later amended it to assert breach of contract claims. The trial court granted summary judgement to the Department finding that the statute of limitations had expired prior to Kelley sending a notice of claim and that his contract and inverse condemnation claims fail as a matter of law.  The COA affirms on everything but the tort claim finding that the question of when that claim began to run was a question of fact.  While it was clear when the damage had been done, Kelley argued that the Department assured him for months that it would correct the problem. If the claim is the Department’s failure to restore the property, the SOL did not necessarily start to run when the damage was done.

Citibank v. Judy Stovall waiver of right to arbitration – Citibank filed a foreclosure action. Almost a year after filing its complaint and after engaging in discovery, Citibank moved to arbitrate.  The court found that Citibank waived its right to demand arbitration.  The COA affirms.

Bennie Tanner and Kimberly Tanner v. Roseberg Forest Products South –  injuries to independent contractor – Tanner worked for Howard Transportation.  Howard contracted with Roseburg to  transport wood product owned by Roseburg between plants owned by Roseburg. In January 2011, Tanner began unloading wood product from his truck at Roseberg’s Oxford facility  using a Hyster forklift that was specifically provided by Roseburg for Howard employees. Tanner testified that as he got off the forklift and descended the stairs to the bay area to go back to his truck he slipped and fell on a stairwell at the Roseburg loading dock. He testified that the steps that night were wet, dirty, and oily. According to Tanner, the steps were “always dirty” and always had “something like grime” on them.  Tanner sued Roseburg.  The trial court granted summary judgment for Roseberg finding that  Tanner “was aware prior to the accident of the hazards concerning the forklift and stairs at issue at the time of the alleged injury.”  The COA affirms.

Pro se PCRS affirmed:

Paul Brown v. State 

Charlie Blount v. State

Nathaniel Walden v. State 


3 thoughts on “Decisions – COA – Jan. 19, 2016

  1. Please give both Stewie and G my compliments on their acute feline prescience…and a sardine or two.

    And if Phil Bryant is reading this:

    Say, man, you’re going through appointments like grease through a goose and there are these two cats – no, real actual cats – you might want to at least consider. I’m tellin’ ya, man, a cat’s ass banging out opinions can’t be any worse than a horse’s…well, you know. And think of the reduced costs of cleanup, too. Cats do all their business in one small box you can dump into a grocery bag; what we have now pisses up every rope and shits all over most of the state and we’re about 50 years behind in shovel duty.

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