Decisions – COA – MAy 9, 2017

 

Bar-Til, Inc. v. Superior Asphalt, Inc. and Pull-A-Part of Jackson, LLC, MMC Materials, Inc., and H & E Equipment Services, Inc.attorney lien – Bar-Til sued Superior Asphalt for payment due for work performed on a construction project owned by  Pull-a-Part of Jackson.   Bar-Til  was awarded a  judgment of $171,033.20. Superior, however, never paid any monies to Bar-Til as a result of that judgment. While funds belonging to Bar-Til were still in the possession of Superior, two of Bar-Til’s  judgement-creditors H & E and MMC   served writs of garnishment on Superior. Superior then  sought the trial court’s permission to interplead the funds into the registry of the Court. Permission was granted  and  Superior deposited the sum of $205,839.65 into the registry of the Court.  The court ended up dividing the funds by awarding Bar-Til’s attorney Chuck  McRae the sum of $72,348.20, H&E the sum of $74,230.56, MMC the sum of $23,626.08, and another creditor Tom DeWeese the sum of $35,634.81  McRae’s contingent fee contract with Bar-Til provided that he get 40% of any recovery so McRae/Bar-Til appeal arguing that McRae was entitled to 40% of the original judgment. The others argue that McRae was not entitled to any of the money because he was not a proper party (he didn’t join the interpleader; Bar Til did) and that he was only entitled to 40% once Bar Til came into possession of the funds and that never happened.  The COA reverses and remands finding that the attorney lien has first priority.

Kuren Cordell Keys  v. State of MississippiLindsey brief – Keys was convicted of two counts of sexual battery in Harrison County.   His court appointed attorney on appeal filed a Lindsey brief (certifying that no issues could be found).  Keys files his own brief arguing the weight and sufficiency of the evidence.  The COA finds no error  and affirms.

Brian Korelitz v. Ruth’e Korelitzalimony –  In 2006, Brian and Ruth’e Korelitz were divorced in  Madison County Chancery.  The  property-settlement agreement included a provision for alimony that used the  word “periodic” six times. But after negotiations between the parties,  “periodic” was stricken through and initialed by both parties and there was  was a handwritten clause stating that the alimony provision of the agreement was nonmodifiable also  initialed by both parties.  In 2014 Brian filed to terminate alimony alleging that Ruth’e was in a de facto marriage. The chancellor denied the request finding that the alimony provision was to be considered lump sum and not periodic and thus not subject to modification.   The COA affirms.

Wayne Cooper and Exlena Horton, Individually and as Co-Administrators of the Estate of Mary Horton Cooper, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Mary Horton Cooper, Victor Longino, Jr., Kizzy Horton, Lamar Horton, and Anthony Horton v. Sea West Mechanical, Inc. – wrongful death – In August  2014, Mary Horton Cooper stopped her vehicle on Highway 84 in Lawrence County, Mississippi. While standing at the rear of her vehicle,  she was struck by Zachary Savoie and died. Her beneficiaries filed suit in the Lawrence County Circuit Court against Savoie and  Savoie’s employer Sea West even though Savoie was on his lunch break at the time of teh accident. Savoie was tested for drug use before he was hired by Sea West in December of 2013 and a test for six different drugs indicated that none of them were in his system. However he smoked marijuana and inhaled pressurized nitrous oxide after he started working there.  He smoked marijuana the night before and then the morning of the accident.  A blood test was positive for marijuana.  Cooper settled with Savoie.  Sea West moved for summary judgment on the grounds that it was not responsible for Savoie’s actions on his lunch break.  The trial court granted it.  The COA affirms.

Dr. Tontel Obene v. Jackson State University; Dr. Melvin Davis, Individually and in his Official Capacity as Executive Director of the Mississippi Urban Research Center; Dr. Felix Okojie, Individually and in his Official Capacity as Vice President for Research, Development and Federal Affairs; and Ms. Sandra Sellers, Individually and in her Capacity as Executive Director of Human Resources – wrongful termination – In 2009, Dr. Obene was employed by JSU as the lead epidemiologist/evaluator for the Delta Health Project, a research project coordinated by the Mississippi Urban Research Center.  It was funded by a five-year grant for HIV prevention from the Centers for Disease Control. JSU reserved  the right to terminate her employment on one month’s notice and her employment  directly corresponded with the phases of the five-year grant, which was renewable every year.   One of Dr. Obene’s jobs was to draft the budget proposal for the next phase of the grant.  Her boss asked her to  submit the application with a proposed increase to 10%.   Dr. Obene refused.  She then filed a complaint with JSU human resources.   On September 28, 2010,  Dr. Obene was sent an e-mail  to remind her that September 29, 2010, was the last day of her employment due to her contract’s expiration—which corresponded with the phase of the grant. She sued for wrongful termination; JSU moved for summary judgment which was granted.  On appeal, the COA affirms finding that her boss’s request that she ask for an increase in the funds allocated to her boss’s job was not illegal and, thus, did not  protect Obene as n exception to at-will employment  under McArn.

Ralph Martin Billingsley v. Amy Diane Billingsley –  division of marital assets – Ralph and Amy married in 1995, had two kids and separated in  2013.  Ralph was granted a divorce on the grounds of adultery.  On appeal Ralph argues that the court erred in dividing the marital property because he failed to give appropriate weight to Amy’s adultery.  The COA finds that the court took into consideration the adultery.   However, it finds that the court erred in classifying certain property as being part of the marital estate and, thus, the division of marital property must be recalculated.

Charles Thomas Bostick and Larry S. Poe v. DeSoto County, Mississippi, by and through its Board of Supervisors – Airbnb-type rentals –  Bostick and Poe own houses in a subdivision of Blue Lake Spring, Mississippi, which is zoned  Agricultural-Residential.   They have been renting the homes for stays of two days or more to visitors traveling to the casinos, Memphis, and Ole Miss.   DeSoto County sought and obtained an injunction from the chancery court prohibiting the rentals on the grounds they violate city ordinances which define single family dwellings so as to exclude hotels.  DeSoto County argued that these short-term rentals are upsetting to neighbors worried about their safety.  Bostick  and Poe appealed.  The COA affirms finding that the short-term rentals are not a permitted use under the zoning regulations.

Triangle Construction Co., Inc. v. Fouche and Associates, Inc. – breach of contract – Triangle won a bid offered by EMWA for a construction project to build a water system in Madison and Leake Counties and the parties entered into a contract in 2010. Triangle filed suit alleging that EMWA and Fouche, the project engineer,  did not obtain easements in a timely manner, prematurely and negligently issued a notice instructing Triangle to proceed with its work far before the easements necessary to continue that work had been acquired, expanded the work beyond the scope of the contract and promised to sign change orders that would reflect the expansion but then failed to do so.  Triangle ended up cashing a check it was given at the end of the project but insisted that it did so without waiving its right to collect for the extra work.   The trial court granted summary judgment for Fouche and certified it as final.  Triangle appeals and finds that  the cashing of the check acted as an accord and satisfaction with respect to Fouche and that Fouche, a nonsignatory to the contract,  owed no duties under the contract to Triangle.

 

Chad Willard  v. State of Mississippi –  improper exclusion of defendant’s  evidence – Willard was found guilty of sexual battery involving a twenty-one-year-old victim, Sally.   He and Sally were with a group of friends who were drinking heavily.  Sally testified that when she woke up, Willard was on top of her.   Willard called one of the friends, Dylan,  to testify on his behalf.   Dylan had stated that they had all been drinking and the next day Sally admitted to having had sex with Willard and was ashamed.  The prosecution objected to parts of Dylan’s testimony on the basis that it had not been disclosed prior to trial and, thus, Dylan’s testimony was limited to telling the jury that Sally said she was ashamed and that she stuck around a whole day after the alleged rape.  On appeal Willard argues that the trial court erred in limiting Dylan’s testimony.  The COA agrees and reverses and remands.

However, “exclusion of evidence is a radical sanction that ought be reserved for cases in which the defendant participates significantly in some deliberate, cynical scheme to gain a substantial tactical advantage.” Myers, 145 So. 3d at 1149 (¶15). It is not enough to show that evidence was recently discovered. Id. at (¶16). “[T]he record must contain evidence that the defendant committed a discovery violation to obtain a tactical advantage before exclusion becomes the appropriate sanction.” Overton v. State, 195 So. 3d 715, 718 (¶10) (Miss. 2016).

 

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