Decisions – May 16, 2017 – part 2

Marzettia Moore v. Rouse’s Enterprises, LLCslip and fall – In  2010, Moore slipped at a Rouse’s market in Gulfport as she was walking by a long freezer.  A tiny puddle of water was observed in the area after her fall.  She was treated at a hospital for pain.  Moore sued Rouse’s.  Moore fell around 6:30.  A store inspection had been completed at 6:05 and an employee reported that all of the floors were clean at 6:11.  At trial, Rouse’s moved for a directed verdict which was granted.  The COA affirms finding that Moore failed to prove that the water was caused by Rouse’s, that Rouse’s knew of the water, or  was on the floor long enough that Rouse’s should have known about it.

In the Matter of the Estate of James J. Chaney, Jr., Deceased: Lillian Hunt Chaney, Individually and as Executrix, and Alice Ann Chaney a/k/a Alice Ann Chaney McCleod v. Josephine Chaney – will –  James Cheney executed his last will in 1962.  At the time he was married to Lillian and they had a daughter Alice Ann.  James and Lillian divorced in 1969.  In the divorce, they executed a property settlement agreement wherein Lillian relinquished any claim to the farm in Crockett County, Tennessee.  In 1971 James married Josephine.  They had no children.  James died in 2011.  Lillian filed to probate the 1962 will.   Josephine contested the validity of the will and moved to transfer the farmland out of the testate estate. The chancellor held, pursuant to  Rasco v. Estate of Rasco, 501 So. 2d 421 (Miss. 1987), that the will was revoked by implication.  On appeal, Lillian and Alice Ann argue that the Chancery Court of DeSoto County lacked subject-matter jurisdiction over the real property, and that the chancellor erred when he ruled the will was revoked by implication.  The COA affirms.

Arlene Carothers v. City of Water Valley, Mississippi – Tort Claims Act – Carothers was rear ended by  Water Valley police officer Marshal Jackson after Jackson  reached down to pick up his cell phone.  The court found that  City of Water Valley was immune pursuant to the Tort Claims Act because the officer did not act in reckless disregard.  Carothers appeals. The COA affirms.

Gloria Thompson v. Mildred Lucaspremises liability -Thompson and Lucas were friends.  One day. Thompson stumbled over some broken concrete (broken by the roots of a pine tree) in Lucas’ driveway and broke her finger so she sued Lucas.  Thompson claimed she was an invitee because the night before, she had loaned Lucas $20 while they were at a casino.  Lucas argued that Thomson was a licensee.   The trial court granted summary judgment to Lucas and Thompson appealed. The COA affirms.

John Eubanks v. Kim Wade d/b/a Kim Wade Real Estate –  lawsuit against realtor  – Eubanks filed a complaint against Kim Wade claiming that he suffered damages when he hired Wade to sell his property in Terry and Wade misrepresented the fact that he could place the property with the Multiple Listing Service when he was not authorized to do so. (Eubanks also filed a complaint with the Mississippi Real Estate Commission). Eubanks eventually found a purchaser for the property but Wade placed a lien on the property for his commission.   Wade filed a motion to dismiss based on res judicata because he had previously won a lawsuit against Eubanks via a default judgment. The motion was granted.  The COA reverses finding that on a motion to dismiss, the court erred in considering documents outside the complaint.

We recognize that Wade has raised an important and possibly valid affirmative defense. However, the prior judgment that Wade previously obtained against Eubanks is a matter outside the complaint that should not be considered in a motion to dismiss. For this reason, we find that the trial court committed reversible error when it granted the motion to dismiss, and the case must be remanded to the circuit court.


Louis J. Clay, Jr.  v. State of Mississippi –  various ineffective methods to attack ancient convictions – In 1979, Clay pleaded guilty to three separate charges of selling marijuana.   In 1984, MDOC filed a petition to terminate Clay’s probation because he had “completed his five[-]year probationary sentence.” MDOC requested that the circuit court terminate Clay’s probation and discharge him. On the same day that MDOC filed its petition, the circuit court entered a discharge order related to all three of Clay’s 1979 convictions. The circuit court also entered an “order to expunge,” which stated that it was in response to MDOC’s petition. The “order to expunge” further stated that Clay had “satisfactorily completed his five[-]year probationary sentence, and it is ordered that such 2 sentence be . . . expunged from [Clay’s] record.”  In November 1996, Clay was convicted of  aggravated assault and his sentence was enhanced  as an habitual offender  based on his 1979 convictions.  He then filed various post conviction petitions which were unsuccessful.   He then filed a writ of error coram nobis in chancery raising various issues having to do with his conviction for aggravated assault.  The chancellor found that the petition was really a pcr and dismissed for lack of jurisdiction.  Clay appealed.  The COA affirms.  This case is consolidated with an appeal from the circuit court in a case where Clay filed to have his 1979 conviction expunged and the circuit court denied the request.  The COA affirms this decision as well.

Susan Harris v. Thomas L. Harris –  social security credit toward alimony – Susan and Leon were married in  1979 and divorced in 2011.  Thomas agreed to pay Susan  $2,755 per month to Susan as periodic alimony. The Agreement did not address any contingency with respect to the alimony other than that it would end at Susan’s remarriage or death. Later, Susan obtained derivative Social Security retirement benefits in the amount of $1,035 per month based on Leon’s earnings record with the Social Security Administration.  In 2015,  Susan filed a complaint to review the health provision of the Agreement and Leon moved to reduce or terminate his alimony payments in light of the SS benefits.  Leon maintained that he should be required to pay Susan only an additional $1,720 per month, since she was already drawing $1,035 per month from Social Security as a result of his earnings record. The chancellor agreed.  Susan appealed.  The COA affirms.

The Agreement between Leon and Susan did not specify or qualify the source of income for payment of the alimony obligation. It simply required that Leon pay the amount to Susan. Crediting Social Security payments derivative from Leon against his alimony obligation, as set forth in the Agreement, is not a breach of the terms of that Agreement. As Leon points out, Susan is receiving the same amount of alimony that she is entitled to under the Agreement, and she would not be receiving the Social Security payments unhinged from Leon’s Social Security earnings record. Thus, we find that the chancellor did not abuse his discretion in failing to require Leon to show a material change in circumstances because Leon’s obligation to pay alimony in the amount set forth in the Agreement remains the same.



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