Decisions – Miss.S.Ct. – Jan. 19, 2017

City of Tupelo, Mississippi v. John Patterson (Pat) O’Callaghan and Patsy K. O’Callaghantakings clause – The O’Callaghans own a house on Raspberry Street in Tupelo.  In 1992, the City  replaced the six-inch drainage pipe with a thirty-six to forty-two-inch pipe to an open ditch along the west side of the property.  The ditch funnelled rain runoff.  Although the ditch encroached onto their property, the  O’Callaghans did not file a complaint.  In 1996, they added an addition to the house.  After every rain, they would notice cracks in the wall. By 2008, it was uninhabitable; the roof caved in and it was full of black mold. In 2008 they filed suit but dismissed it without prejudice. In 2012, they hired an engineer and filed a second suit for property damage under the takings clause.  The City moved for summary judgment which the court denied.  The Miss.S.Ct. granted the City’s interlocutory appeal and reverses and renders. “Finding that personal injuries are not recoverable in a claim under the Takings Clause and that the three-year limitations period under Mississippi Code Section 15-1-49 is applicable to takings claims, we reverse the lower court’s ruling, rendering a decision for the defendants.”

Kimberlee Davenport v. Hansaworld, USA, Inc. –  writ of execution – Davenport was employed by software company HansaWorld as its sales manager for the United States and Canada prior to her termination in October 2012.   In March 2014 HansaWorld obtained a judgment against  Davenport  in Miami, Florida in the amount of $265,719.45 in a lawsuit in which Hansaworld accused Davenport of, among other things,  failing to return company property.    Davenport did not appeal.

Hansaworld enrolled the judgment in the Circuit Court of Forrest County.  In December 2013, Davenport filed a lawsuit against Hansaworld in the United States District Court for the Southern District of Mississippi alleging violations of Title VII and state law claims. The lawsuit was the subject of a  Sheriff’s sale.  On March 31, 2015, the Circuit Clerk of Forrest County, Mississippi issued a Writ of Execution.   On April 3, 2015, the Sheriff of Forrest County posted a Notice of Sale of Choses in Action under Execution of Judgment  which provided that  Davenport’s Federal Court claims against HansaWorld would be auctioned on April 14, 2015.

On April 11, 2015, Davenport  filed for Chapter 13 bankruptcy in Texas thereby staying the Sheriff’s sale.  The bankruptcy was dismissed on June 29, 2015.   In Forrest County, Davenport filed a  Motion to Quash the Writ of Execution  which was granted by the Circuit Court. However, the  Court  conditioned the quashing of the writ of execution on Davenport posting a bond in the amount of $100,000. Davenport was unable to post the bond, the sale went forward, and HansaWorld  purchased Davenport’s lawsuit against it for  $1,000. Hansaworld then filed a motion to substitute itself as the party in interest in Davenport’s place intending to dismiss the lawsuit.  The federal lawsuit has been stayed pending the outcome of the instant appeal.

Davenport  filed an appeal of the Circuit Court’s order requiring her to post a bond  arguing that “[b]ecause the quashing of the writ of execution constituted permanent relief, the posting of a bond served no purpose in this matter.”   Hansaworld argues that the appeal should be dismissed because the order was not a final judgment but rather a  preliminary injunction issued pursuant to Rule 65. The Court affirms finding that the order was a final judgment since there was nothing left to decide and Davenport did not object to the bond.


Shirley Adams, Individually and as Survivor and Only Heir of Dorothy Turner, Deceased v. Graceland Care Center of Oxford, LLC, Graceland Management Company, Inc., Lafayette LTC, Inc., and Yalobusha General Hospital and Nursing Homeeffect of failing to disclose lawsuit in bankruptcy  – After Shirley Adams’ mother died while living at Graceland Care Center, she filed suit in 2008, against the nursing home for wrongful death.  Some four years previously, Adams had filed a chapter 13 bankruptcy and had been making payments all along.   She completed her bankruptcy plan without amending her bankruptcy case to disclose the wrongful death lawsuit as an asset.  During the plaintiff’s deposition, the defendants learned of the bankruptcy and filed to dismiss the wrongful death case on this ground.  Adams moved to reopen her bankruptcy case.  After a hearing the trustee decided she would abandon any settlement given that the unsecured claims amounted to $4,719.53.  Thereafter the trial court in the wrongful death case granted the motions to dismiss.  On appeal, Adams argues that her failure to disclose was inadvertent. The COA reverses and remands.  The Miss.S.Ct. grants cert and reverses the COA finding that the COA “misapprehended the applicable standard of review and the law of judicial estoppel in the instant case” and reinstates the trial court’s dismissal of Adams’ lawsuit. “[T]he appropriate analysis requires an appellate court to use the abuse of discretion standard to review the trial court’s determination that judicial estoppel is or is not 6 applicable. Then, an appellate court would use the de novo standard to determine whether summary judgment was or was not appropriate.”

The Court grants cert in  Watkins Development, LLC and David Watkins, Sr. v. C. Delbert Hosemann, Jr., in his Official Capacity as Mississippi Secretary of State  which involves violations of the Mississippi Securities Act.  (The link is to the COA opinion).  In 2010, Watkins Development was hied to work as the master planner for Meridian.   That same year. Watkins began on a project to renovate the former Belk location at Metrocenter in Jackson. To that end, he formed Retro Metro, a limited liability company.  It purchased the building with an eye toward leasing it to the City of Jackson once renovated. Watkins sought a loan to be obtained by revenue bond proceeds issued by the Miss. Business Finance Corp and recruited the investment banking firm of Duncan Williams to buy the bond.     In April 2012, Watkins defaulted on the payment of the loan.  The  Secretary of State issued a Notice of Intent to Impose Administrative Penalty and Order Restitution and Disgorgement of Profit to Watkins. After a hearing, Watkins was found to have committed four  violations of the Mississippi Securities Act.  Watkins appealed to the chancery court which affirmed three violations of the Mississippi Securities Act but reversed on one of them.  Watkins appealed and the COA held that  the chancellor erred in finding that one of the violations was not supported by the record.  The COA reinstated the SOS’s final order.

Watkins cert ptn.pdf



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