Decisions – Miss.S.Ct. – April 6, 2017

Thomas L. Swarek and Thomas A. Swarek v. Derr Plantation, Inc. – specific performance –  – the Swareks sought to buy Derr Plantation from the German partnership  that owns it and filed a complaint for specific performance.  The Swareks offered $7 million but Derr wanted $10.5.  There were negotiations over a lease-purchase arrangement.  Eventually terms were agreed upon and the Swareks travelled to Germany to sign the documents.  FOr whatever reason, the documents were not signed in Germany and a little time later Swarek wrote to Derr to correct a “typo.” Swarek meant to close the purchase  by February 28, 2008 and  not February 28, 2007.  “Swarek told Witt he intended to pay base lease payments totaling $500,000 for a total consideration of $8 million instead of lease payments of $750,000 for a total consideration of $8.25 million as stated in the February 14 document.” Swarek wrote that he would increase the initial earnest money to $100,000.  Swarek eventually came up with three proposals.  Negotiations broke down and Derr ceased communicating with the Swareks. The Swareks filed suit for specific performance.  The trial court found that the parties had failed to agree upon a contract and the Swareks appealed.  The Miss.S.Ct. affirms.

Based on Swarek’s communications with DPI on February 16, and subsequent thereto, there was a substantial, material variance between DPI’s understanding of the terms set forth in the February 10 letter and the terms Swarek said he had intended. These terms concerned the duration of the lease and the total purchase price for the property, and were no doubt material. Swarek having informed DPI he would not perform according to the terms contained in the February 10 letter, DPI was excused from any return performance obligation(s) it may have had under those terms.


Jeffrey A. Weill, Sr. v. Karla Watkins Bailey judicial immunity –  Bailey was Judge Weill’s administrative assistant.  He fired he and she was hired in the clerk’s office.  Subsequently, in four separate orders, he included footnotes stating that Bailey had engaged in inappropriate ex parte contacts with a lawyer in the public defender’s office.   Bailey filed suit for libel, intentional infliction of emotional distress, etc.   Weill filed a motion to dismiss based on judicial immunity and other grounds. The trial court denied the motion and Weill filed an interlocutory appeal.  The Mississippi Supreme Court finds that Judge Weill’s statements made in an order were immune from suit because of judicial immunity.  The Court remands the case, though, because Bailey had filed for permission to file an amended complaint containing allegations concerning Judge Weill’s statements made in an article in t he Clarion Ledger about the lawsuit.  The Court expresses n o opinion as to whether those allegations would be subject to dismissal because of judicial immunity.

Estate of Katherine M. Lyons, Deceased: Anthony Lobred v. Larry Lyon – will contest –  Katherine Lyons died in March 2014 at the age of 83.  She had no surviving children.  She had made a will in  2005  designated her nephew, Anthony Lobred, as executor and leaving everything to him.  She made out a new will in  2012 designated her brother, Larry Lyons, as executor, and leaving everything to Larry’s son, Kenneth Lyons, subject to  a life estate in her residence for her brother John.  Anthony and Larry duke it out over the wills and there is a question as to Katherine’s testamentary capacity with respect to the 2012 will.  Her doctor was Lara Clement and her records were subpoenaed.  Lobred then noticed Dr. Clement’s deposition to take place in the office of his attorney David Sessums.  Before the deposition started, Larry Lyons’ attorney Dean Andrews, Jr. arrived.  While he was sitting in the deposition room, Dr. Clement walked into the room accompanied by David Sessums.  Andrews asked Clement if she had discussed Katherine’s medical records with Sessums.  She said “yes.”   It turned out that it  was Clement’s opinion that Katherine was not competent to execute a will in 2012.  Larry Lyons moved to strike Dr. Clement’s opinion based on the ex parte contact she had had with Anthony Lobred’s attorney.  The trial court entered an order that Clement’s testimony would be limited to what was in the medical records.  Anthony filed an interlocutory appeal.  The Miss. Supreme Court reverses.  “The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.”

Under either Rule 503(c) or Section 13-1-21(1), Lobred was authorized to waive Katherine’s medical privilege. Lobred’s counsel’s communications with Dr. Clement were not prohibited when there was no privilege left for the ex parte rule to preserve. Because no prohibited ex parte contact occurred, we reverse the trial court’s order and remand with instructions that Dr. Clement’s testimony remains admissible.


In the Matter of the Enlargement and Extension of the Municipal Boundaries of the Town of Terry, Mississippi: Greg Wilson, David McGuffee, Joyce Wallace, Kevin Bryant and Arthur Harvey v. Town of Terry, Mississippiannexation – In 2012, Terry decided it needed to expand its boundaries. Terry identified five areas for expansion (south, east, west, northeast, and northwest).  The chancellor, after a two-day trial, awarded Terry the east and west areas. Persons objecting to the annexation (Greg Wilson, David McGuffee, Joyce Wallace, Kevin Bryant, and Arthur Harvey) appealed. They argue that “Terry was unable to show, under the court-recognized indicators of reasonableness, that it was reasonable for Terry to expand its boundaries whatsoever. Terry displayed both poor past performance to its most recently annexed citizens brought in in 2009 and a misunderstanding of how it would or could move forward serving any new citizens post annexation.”  Terry, of course, disagrees. The Miss.S.Ct. affirms.

Tasha Dillon v. David Myerselection contest – The election at issue was the August 4, 2015 Democratic Primary for the Mississippi House District 98.  The Pike County Election Commission  on behalf of the Mississippi Democratic Executive Committee certified Myers as the winner of the primary by a vote of 2003 to 1859.  Dillon contested the results with the MDEC  based on various irregularities and observations, as well as the circuit clerk prohibiting a complete statutorily-provided examination of the balloting materials by Dillon and her representatives.    Pursuant to MCA § 23-15-927 “within ten (10) days after any contest or complaint has been filed with an executive committee” the challenger must file for judicial review which Dillon did. The Pike County Circuit Court dismissed the action finding that it  did not have jurisdiction because the Mississippi House of Representatives has exclusive jurisdiction.   Dillon appealed and the Miss.S.Ct. reverses.

Prevailing in a primary election creates no right to demand of the Legislature a seat. Prevailing in a primary election creates no right to challenge another who has taken a seat. A primary election does not transform a candidate or nominee of a party into a member of the House or Senate. Prevailing in a primary merely makes one the official party candidate or nominee certified to run in the general election. Members of the Legislature are elected in general (or special) elections, not primaries; hence the Constitution granted the Legislature the right to hear legislative election contests following a general (or special) election.

Since this was not a general election, the only place to challenge the results would be in court.  In so doing, the Court overrules a line of cases that held otherwise.

The Mississippi Bar v. Ivon Johnson – disbarment – Johnson, who had been a Hinds County Assistant  District Attorney, pleaded guilty in federal court to a felony charge involving bribes he took while an ADA.  He has asked to be permitted to resign irrevocably.  The Mississippi Supreme Court so orders.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s