Decisions – Miss.S.Ct. – Oct. 20, 2016


Pascagoula-Gautier School District, formerly known as Pascagoula School District and City of Pascagoula, Mississippi v. Board of Supervisors of Jackson County, Mississippi – taxation – The School District and the City of Pascagoula protested  the county tax assessor’s assessment of taxes on property leased to Chevron for the years 2011-2014.   The land belongs to the county and taxes collected thereon are used for the School District.  The circuit court found that the School District did not have standing to appeal the taxation of another property owner.  The County concedes that the City may have standing to challenge the taxation but may do so only through the county, attorney, the DA or the AG as per MCA Sect. 11-51-77. On appeal the Court reverses the dismissal of the School Dt. “because the School District and the City need not show a specific statute authorizing standing, and because they have otherwise demonstrated standing.”, The Court also affirms the trial court’s decision to grant the Board’s demand for a jury trial and reverses the trial court’s order declining to join Chevron as a party.

Cleveland Nursing and Rehabilitation, LLC v. Estate of Annie Mae Gully, by and through the Administratrix, Eva Bellmon – Gully was  a resident at Cleveland Nursing Home.  She fell and broke her hip.  She had surgery to repair the hip but developed complications and died 6 days later.  Her family sued the nursing home for negligence and a jury awarded them one million dollars which was reduced to $500,00 per the statutory cap. .  On appeal Cleveland argues that the trial court erred in allowing the Plaintiff’s expert testify about restraints when the opinion had not been disclosed in discovery.  The trial court allowed the evidence in on the grounds that it could not come as a surprise because the Plaintiff had requested and obtained an order allowing it to inspect the wheelchair and restraints. “Cleveland was entitled to full and complete disclosure of Goldsmith’s expert testimony, and Bellmon’s motion to inspect the premises was not a proper alternative or valid substitution for supplementing answers to interrogatories. Accordingly, this issue warrants reversal and a remand for a new trial.”  The Court also addresses the Plaintiff’s claim that the appeal should be dismissed as untimely.  The docket has an entry that states  “JUDGMENT SENT TO ALL PARTIES”  but there is no judgment.  No prior entry on the docket references any judgment being entered by the court, and the November 5, 2013, entry fails to contain the substance of the judgment of the court. Cleveland had called the clerk’s office and been told on November 6, 2013, that no judgment had been entered.  On November 14, Cleveland received a copy of the judgment in the mail and that same day e mailed a motion for new trial to judge’s staff attorney and overnighted the motion to the clerk.

Cleveland argued that the motion was timely filed because (1) the motion was delivered to the trial judge on November 14, 2013, pursuant to Rule 5(e)(1) of the Mississippi Rules of Civil Procedure, (2) the judgment of the court was not entered pursuant to Rule 79(a), and (3) the court had the authority to vacate the judgment pursuant to Rule 6 60(b)(6). The trial court held that the general docket did not contain a notation specifically evidencing the “entry” of the judgment by the court and therefore did not comply with the language of Rule 79(a). The trial court found that no judgment had been entered on the docket and that the time for filing the motion for new trial had not run. The trial court instructed the clerk to enter the judgment properly on the docket and to serve a copy on all counsel. Cleveland was instructed that it could file its motion for new trial pursuant to Rule 59 once the judgment was properly entered.

On February 7, 2014, the judgment in favor of Bellmon was entered on the docket and thereafter  Cleveland filed its motion for new trial.

Hudspeth Regional Center and Mississippi State Agencies Self-Insured Workers’ Compensation Trust v. Linda Mitchell– workers comp. – Linda Mitchell worked for the  Mississippi State Hudspeth Regional Center. In September 2011, she sustained an injury to her back. She  continued to work for Hudspeth until she was terminated for cause in June 2012. She did not appeal her termination. In October, 2012, Mitchell filed a petition to controvert alleging  disability due to injuries she suffered  in September  2011.   The ALJ awarded Mitchell permanent disability benefits along with medical benefits and penalties. The ALJ’s order was affirmed by the Commission.  Hudspeth appeals arguing the decision was not based on substantial evidence.  The COA affirms. The Miss.S.Ct. granted cert and reverses  and remands  “because the Administrative Law Judge (ALJ) and Commission both failed to recognize that Mitchell’s return to work created a rebuttable presumption that she suffered no loss of earning capacity.”

The Court grants cert in Michael Kirby and WIlliam T. Heimer v. Bankcorp South involving  a judgment on a 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. Kirby and Heimer  requested cert arguing that  the COA’s holding  “has created new precedent essentially finding that guarantors have absolutely no defense with respect to the calculation (whether or not it’s a commercially reasonable or fair calculation) of a deficiency amount when the guaranty document contains a provision purporting to waive a guarantor’s rights to dispute valuation.”


The Court also amends the Uniform Rules of Youth Court Practice. 

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