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

William Burgess, Derivatively on behalf of BancorpSouth, Inc. v. Aubrey B. Patterson, Hassell H. Franklin, James Virgil Kelley, Turner O. Lashlee, Robert C. Nolan, Alan W. Perry, James E. Campbell, III, Wilbert G. Holliman, Jr., Larry G. Kirk, Guy W. Mitchell, III, William Cal Partee, Jr., Warren A. Hood, Jr., William L. Prater, Gregg Cowsert and BancorpSouth, Inc. – shareholders’ derivative suit –  Burgess filed a shareholder derivative action on behalf of BancorpSouth alleging breaches of fiduciary duty by the defendant board members.    Burgess sent a demand to the Board which replied that it had  “formed a special committee of Directors under Mississippi law to evaluate the subject matter of [Plaintiff’s Demand].”   It later informed Burgess that it did not intend to prosecute Burgess’ demands. Burgess filed suit.

According to the defendants, the claims were the same as in a securities class action case, Winslow v. BancorpSouth, Inc., et al, Case No 3:10-CV-00463, pending in the U.S. District Court for the Middle District of Tennessee.   Burgess’ case was stayed until Winslow was settled. When the case was reopened, the defendants moved to dismiss.  Burgess propounded discovery.  Defendants moved for a protective order that discovery not be had. Defendants tendered a sealed copy of the Special Committee Report as an exhibit to their motion for protective order.  Burgess claims that it was unfair for the defendants to disclose the Special Committee Report while refusing to provide a copy to Burgess. Burgess argued that he should have been permitted discovery.  The Miss.S. Ct. affirms.


Marshall Graves  v. State of Mississippi – sexual battery –  “Marshall Graves was convicted of fondling (two counts) and sexual battery (one count) and was sentenced to terms of fifteen years for each count of fondling and life as to one count of sexual battery, all to be served concurrently. Graves’s appellate counsel filed a brief in compliance with Lindsey v. State, 939 So. 2d 743 (Miss. 2005), certifying to this Court that the record presented no arguable issues for appeal. Graves has filed a pro se brief, asserting numerous errors.”  The Court affirmed the case on Oct. 29, 2015.  It now grants rehearing but still affirms.

Charles Robinson, M.D. v. Regina A. Corr – medical malpractice – In July 1998, Regina Corr went to the Gulfport Memorial Hospital to give birth to her fourth child. Her OB/GYN Dr. Charles Robinson decided to deliver Regina’s child via Caesarean section. During the C-section, Regina’s uterus was lacerated and required surgical repair. Dr. Robinson stitched up the laceration but the frianility of the tissue made it difficult.  Regina ended up with a  partial obstruction of her  left kidney. A urologist  discovered that the left ureter was sutured and placed a nephrostomy tube to drain the urine from the blockage into a nephrostomy bag to allow ot to heal.  Regina eventually had another urologist repair the area.  Regina sued  Dr. Robinson claiming he negligently sutured (or placed a suture very near) the ureter.  Dr. Robinson denied suturing the left ureter, and his position never changed until the day of opening statements at trial.  The jury awarded Regina $55,634.78 for past medical expenses and $420,000 for pain and suffering. On appeal, Dr. Robinson argued that the trial court erred in excluding his proffered testimony, in admitting testimony from Regina’s expert that was outside her expert’s designation, and in denying his request for a remittitur. The Court affirms.  The trial court prevented Dr. Robinson from testifying that he would not have removed the stitch in Regina’s ureter during surgery, because of Regina’s blood loss and friability of the stitched tissue.  He had not, however, disclosed this opinion prior to trial and it was excluded.


Charles Bester v. State of Mississippijudge can give life sentence for forcible rape – Charles Bester pleaded guilty to forcible rape, and the trial judge sentenced him to life imprisonment. Bester petitioned for post-conviction relief (PCR), arguing that the forciblerape statute allows only a jury to impose a life sentence, and absent a recommendation from a jury, a trial judge is powerless to impose such a sentence. The trial court and the Court of Appeals rejected this argument and denied Bester’s PCR motion.” The Supreme Court affirms  holding that the authority of the trial judge to sentence someone to “any term” if the jury does not affix life includes a life sentence.  This would include a sentence of life.


City of Tupelo, Mississippi v. Terry Y. McMillin, M.D. and Leslie Susan McMillinTort Claims Act –  Dr. Terry  McMillin and Leslie S. McMillin purchased a house  from James Ewing in Tupelo in 2006.  Five years later they filed suit against the City alleging Tupelo negligently failed to follow Miss. Code Ann. §73-59-17 by not reporting to the State Board of Contractors that Ewing was operating as an unlicensed contractor.  Construction of the house started under a licensed contractor Joey Guyton.  Nine months after the building permit  was issued to Guyton by Tupelo’s permit manager, Guyton withdrew use of his contractor’s license and released the permit on the residence  to be used by a successor licensed contractor.  The City’s permit manager thought that  construction  would continue under Lawrence Deas, a licensed contractor; instead, construction continued under Jamie Ewing, who was not licensed until after the McMillin’s purchased their home.  The judge found for the McMillins in the amount of  $115,238.62. Tupelo appeals arguing that while Vail’s actions were negligent, they “were not arbitrary and capricious. As a result, Tupelo is immune from liability under Miss. Code Ann. §11-46-9(1)(h).” The McMillins cross appealed. The Supreme Court affirms.

Mississippi Commission on Judicial Performance v. Judge David ShoemakeJudicial Performance – This involves the same conservatorship for which former Chancellor Joe Dale Walker was suspended and then pleaded guilty in federal court for tampering with a witness.

Chancellor  Walker signed an order appointing  Marilyn Denise Newsome as the conservator of the estate of her daughter Victoria Denise Newsome.    The ward later received a settlement in a medical negligence claim. Walker ordered that a house be constructed for the use of the ward and that a minimum of four bids should be obtained by the attorney for the conservator, Keely  McNulty.   The lowest bid submitted was from C.T. Construction, a company owned by Walker’s nephew Chad Teater.  In July  2011, Walker entered an order transferring the ccuse for limited purpose of having Chancellor Shoemake  approve the bid.  “Upon approval and acceptance, the cause is to be transferred back to Honorable Joe Dale Walker, Post 2.”  The day before that order was entered,  McNulty sent Shoemake a seventeen page fax, including a petition, proposed order and five bids. The bid from C.T. Construction included with that fax was in the amount of $296,575.14. The following day, Shoemake  signed an order authorizing the Conservator to accept the lowest bid case back to Walker.  Although that order recites that copies of the five bids received were attached to the order as exhibits, no bids were attached to the order on file in the clerk’s office. At the time that order was filed no petition requesting that relief was on file, and the Conservator neither gave  McNulty permission nor had knowledge of that request for relief.  Nine months later, McNulty filed two Petitions for Approval of Contractor, both of which requested approval of the C.T. Construction bid of $273,075.14 and both of which had five bids attached.  Both copies of the C.T. Construction bid were for $296,575. Neither petition was sworn to and neither was signed by the Conservator. After Shoemake had transferred the matter back to Walker,  Shoemake signed an  order submitted by McNulty authorizing and ordering the approval of C.T. Construction’s “attached” Construction Management Agreement, including a $30,000.00 fee, and approval of contractors’ and subcontractors’ invoices in accordance with an “attached” itemized proposal, and also authorizing the Conservator to sign that Construction Management Agreement.  Nothing is attached to that order as filed with the clerk’s office.  No petition requesting that relief was ever filed, and the Conservator neither gave her permission nor had knowledge of McNulty’s request for relief.  In August 2011, after the case was transferred  back to Walker, Shoemake  signed an order authorizing the law firm that had represented Newsome to transfer $258,395.14 from their escrow account to the conservatorship account for the construction of the home.

In January  2012, Shoemake signed an order reimbursing C.T. Construction $23,000 for materials allegedly stolen from the construction site.

Shoemake denied signing any of the orders. After SHoemake was told that a handwriting analysis determined that they were Shoemake’s signatures, Shoemake admitted to signing them.

The Commission recommended that Judge Shoemake  be removed from office,  fined $2,500, and assessed the costs of the proceedings in the sum of $8,882.67.  The Mississippi Supreme Court disagrees on the punishment.

 We hold that Judge Shoemake improperly signed ex parte orders and contributed to the mismanagement of a ward’s estate. However, the Commission did not prove by clear and convincing evidence that Shoemake gave testimony that he knew or should have known would be misleading. We order that Judge Shoemake shall be publicly reprimanded, shall be suspended from office for a term of thirty days without pay, shall pay a fine of $2,500, and shall pay costs in the amount of $5,882.67.


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