Decisions – Miss.S.Ct. – Feb. 11, 2016

Mississippi Transportation Commission v. United Assets, Ltd. – eminent domain – The Mississippi Transportation Commission sought to  condemn 11.5 acres of highway frontage property owned by United Assets, LLC, which would leave United Assets with 12.02 acres. The jury awarded $1,620,060.66 as just compensation for the taking. MTC appeals arguing that the trial court erred when it allowed United Assets’ appraiser to testify to the value of the remaining property without supporting market data.  Since MTC failed to make a contemporaneous objection, the Court finds the issue waived and affirms.

Perriece Collins v. Toikus Westbrook, M.D. – service of process –  on cert. the Miss. S.Ct. reverses the COA.  This was a med mal case centering on the June 30, 2010, birth of a still born.   The complaint was filed on December 16, 2011.  Summons was not issued until the day before the 120 days ran.  Just prior to the expiration of the 120 days, the lawyer hired a  professional process-serving company in Hattiesburg and told them that process needed to be served by Saturday, April 14. The company  ended up serving a person they believed was Toikus Westbrook in Memphis Tennessee on April 13.  It turned out, though, that the man served was Toikus’ father and Toikus filed a motion to dismiss for failure to serve process.  The trial court granted the motion finding that the defendant had not been served and there was not good cause to extend the time for service.  The Miss. Court of Appeals affirms. The COA reverses finding that “[t]his Court has held that ‘good cause is likely (but not always) to be found when the plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server.'”

The record shows overwhelmingly that Collins’s failure to make timely service of process on Dr. Toikus Westbrook was caused entirely by “the conduct of a third person,” namely, Dr. Jesse Westbrook. Holmes, 815 So. 2d at 1186 (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 2000)). The trial court’s finding that Dr. Jesse Westbrook did not misrepresent his identity was not supported by substantial evidence and was an abuse of discretion. The actions of Dr. Jesse Westbrook and/or Dr. Toikus Westbrook were, at least, misleading. By returning Keith’s call and by agreeing to receive a delivery from Dr. Toikus Westbrook’s employer, Dr. Jesse Westbrook interfered with and actually obstructed Collins’s attempts to serve process on Dr. Toikus Westbrook. But for Dr. Jesse Westbrook’s subterfuge, Collins may have been able to serve the real Dr. Toikus Westbrook within the 120-day period, or she would have been able to file a timely and possibly successful request in the trial court for an extension of time in which to serve Dr. Toikus Westbrook. The professional process server hired by the plaintiff’s attorney, and, ultimately, at the expense of the plaintiff, was misled by what can be viewed only as the deliberate deception of a third party who turned out to be a close relative of the 14 defendant. This third party’s corrupt conduct caused a false return to be made on process issued by and returned to a Mississippi trial court. No litigant should be rewarded for such treachery.



Khambraya Stanley v. Scott Petroleum – premises liability/pedestrians in parking lot– the plaintiffs were at a gas station  standing between the walk-up window and a set of vending shelves containing drinks for purchase. A car at the nearby intersection was malfunctioning and the driver drove it into the gas station where it  entered the gas-station parking lot traveling at approximately forty-five miles per hour, knocked over some shelves which his Stanley.   Stanley sued the gas station arguing “that patrons standing at the walk-up window were not protected from vehicles in or around the gas-station parking lot. Stanley states Scott Petroleum acknowledged the potentially dangerous condition by erecting concrete bollards around the store, gas pumps, and power pole, as well as including a warning sign stating: “Caution! Be safe and alert. Watch out for moving vehicles.” Stanley further argues that concrete bollards should have been placed around the walk-up window for the protection of Scott Petroleum’s customers.”  The trial court granted summary judgment and  the Miss.Court of Appeals affirms finding that Stanley did nothing to distinguish her case from the line of cases that hold “that there is  no duty owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from driving through the store’s plate glass window.”  The Miss.S.Ct., on cert, reverses finding that the trial court erred in not granting the plaintiff’s MRCP 56(f) motion to conduct additional discovery.

While premises owners do not have a duty “to erect protective barriers to insure the safety of patrons inside [a] store” or “to protect against runaway vehicles where such incidents would be unforeseeable,” such a duty can arise depending on the factual 2 “Because our rules are generallymodeled after the Federal Rules ofCivil Procedure, we often consider federal authority when construing similar rules.” BB Buggies, Inc. v. Leon, 150 So. 3d 90, 96 (Miss. 2014) (citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990)). 4 circumstances of a given case. Cheeks v. AutoZone, Inc., 154 So. 3d 817, 824 (Miss. 2014). In Cheeks, a case involving similar factual background to the instant case, the question of foreseeability was determined after discovery was complete and all evidence had been presented to the court and jury. Id. Regardless of the ultimate merits of the case, it was appropriate to make that determination after the completion of all relevant discovery.


Also, the Court revises MRAP 5.

 Rule 5.1. Privacy Protection for Filings Made with the Court Beginning July 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-1-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts—specifically, Sections 5 and 9 therein.

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