Decisions – Miss.S.Ct. -Sept. 22. 2016

Catherine Doe v. Stan Smith – adoption fraud –  Katy and Stan were not married but had a son Luke.   When Katy got pregnant again, she told Stan that he was no the father.  Stan field to establish paternity of Luke but not to establish paternity of Katy’s second son Matthew.  Kathy then allowed a married couple to adopt Matthew claiming that she had no idea who Matthew’s father was. The adoption was granted in July of 2014.  Meanwhile Stan asked Katy about Matthew and she finally admitted that he was Stan’s son.  In October 2014, Stan moved to reopen Matthew’s adoption.  After a paternity test confirmed that Stan was Matthew’s father, the chancellor set aside the adoption.  The married couple appealed and the COA affirms.

Daner Ford v. State of Mississippi murder –  Ford was charged with murdering Marvin Stockett in a hail of gunfire in the early morning hours of September 7, 2008. One of the witnesses at his trial testified he had seen Ford at a club the night before.  He was asked if there was any bad blood between himself and Ford and the witness replied “back in ’94 he shot me.” The same witness testified that Ford got into an argument with two men at the club and stated he was going to kill one of them. And even later that night, Ford hit the witness in the head.

On appeal, Ford argues it was error to elicit testimony about the 1994 shooting as well as   the altercation at the club that had nothing to do with Stockton, that it was error to grant a flight instruction, ineffective assistance (he elicited information that Ford’s co-defendant had already been found guilty, failed to object to 404(b) evidence ), and that the court should  not have sentenced as an habitual without a bifurcated hearing.  The Miss.S.Ct. affirms.


Elsie Smith, Individually and as Representative of the Estate of Larry D. Smith, Deceased: Amy Smith Rhodes, Ouida Smith Dawkins, Larry Clint Smith and Bonnie Smith Witty v. Union Carbide Corporation f/k/a Union Carbide Plastics & Chemicals Company, Inc., Chevron Phillips Chemical Company LP, successor-in-interest to Conoco Phillips Company f/k/a Phillips Petroleum Company, and Phillips 66 Company formerly d/b/a Drilling Specialties Company a/k/a Chevron Phillips Chemical Company, LP and Montello, Inc. –  asbestos – Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. He also smoked  two to three packs per day for almost thirty years.  He was diagnosed with lung cancer in August 2002 and died three months later.  His widow Elsie  filed a wrongful death action against several defendants in 2006 claiming that Larry’s death was caused by his exposure to asbestos at work.  In 2009, Elsie was awarded $3 million.  The court granted a jnov which was reversed on appeal.  The court held that “the trial court erred as a matter of law when it applied the ‘frequency, regularity, and proximity’test outside a summary judgment or directed verdict situation. Instead, the trial court should have matched the plaintiffs’ proof against the statutory elements of a design defect product liability claim, just as would be required in any nonasbestos negligent design litigation.” The trial court appointed a special master and then again granted a jnov. Elsie appealed arguing that the trial court should have analyzed the facts de novo and not given deference to original trial judge’s findings (the original Judge Evans had died).  The Court agrees but finds that does not automatically require reversal.

We reverse the trial judge’s order reaffirming JNOV and remand. The trial judge reaffirmed JNOV for the sole reason that Elsie presented insufficient evidence of Larry’s exposure to the defendants’ asbestos products. But we find that Smith did present sufficient evidence to make the exposure issue a question for the jury. And because the trial judge did not address any of the other arguments that the defendants reasserted after this Court’s decision in Smith I, we decline to address any of the other issues raised in the briefing and in the defendants’ cross-appeals and remand this case to the trial judge so that he may rule on any of those issues that he finds are still outstanding. We also deny Elsie’s motion to strike the defendants’ cross-appeals.


Sharel A. Kenney v. Foremost Insurance Company and USAA Casualty Insurance Company – choice of law UM coverage – Kenney was a passenger on a motorcycle driven by Daniel Steilberg when, in May 2013, they were struck by an uninsured motorist, Lionel Bradley, on  Highway I-90 in Bay St. Louis, Mississippi.  Kenney, a resident of Louisiana,  owned the motorcycle which was  insured by Foremost. She also owned  a car insured by  USAA.  Foremost paid Kenney’s  property damage claim but provided no medical payments benefits or UM benefits because the policy provided for none.  USAA made no payments finding no coverage on the policy covering the car owned in Louisiana. Kenney sued in Mississippi and the trial court applied Louisiana law to find no coverage.  Kenney appealed arguing that the court should have applied Mississippi law. The Miss.S.Ct. reverses ion part and affirms in part.  The Court finds that Louisiana law governs and that Kenney was not owed uninsured benefits under the USAA-CIC policy.  However, since there was a question of fact as to whether Kenney executed a valid waiver of uninsured motorist insurance in her application with Foremost Insurance Company, summary judgment as to that policy was erroneous.

The Court grants an interlocutory appeal in Ferguson & Associates Architects, P.A. and G.G. Ferguson, AIA v. JWRBR Properties, LLC  and orders the case transferred to circuit court.  JWRBR sued  G.G. Ferguson and Ferguson & Associates Architects, P.A for breach of contract, negligence, defamation, and punitive damages.  The Ferguson defendants moved to transfer the case to circuit court which the chancellor denied.

The Hinds County Chancery Court found it had jurisdiction over JWRBR’ s complaint against Ferguson regarding design and construction administration services. The complaint included counts for breach of contract, negligence, interference with a business relationship, slander, libel, lien expungement, and punitive damages. Ferguson filed an answer, counterclaims, and challenged the court’s jurisdiction with a Motion to Dismiss or, Alternatively, to Transfer. Finding it had jurisdiction of the one equity claim and, thus, pendent jurisdiction of the legal claims, the chancery court denied Ferguson’s motion. However, this Court finds the predominant request in JWRBR’ s complaint is for legal relief and, along with Ferguson’s right to a jury trial, the complaint must be transferred to the Circuit Court of Hinds County. See, e.g., Derr Plantation, Inc. v. Swarek, 14 So. 3d 711 (Miss. 2009); Tyson Breeders, Inc. v. Harrison, 940 So. 2d 230 (Miss. 2006). Further, JWRBR’ s argument that Ferguson waived jurisdiction by filing a counterclaim must fail. A court’s lack of subject matter jurisdiction is a defense that cannot be waived and may be brought at any stage of the proceedings. Stuart v. Univ. of Miss. Med. Ctr., 21 So. 3d 544, 548-49 (1 10) (Miss. 2009) (citations omitted). And Ferguson is not the plaintiff in this matter and was required to raise compulsory counterclaims or lose them. M.R.C.P. 13(a). IT IS THEREFORE ORDERED the Petition for Interlocutory Appeal filed by Ferguson & Associates Architects, P.A. and G.G. Ferguson, AIA is hereby granted.

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