Decisions – COA- August 8, 2017

Taylor Made Smiles, PLLC v. Franklin Collection Service, Inc. –  mistaken payment  –  Taylor Made hired Franklin Collection Services to collect on an outstanding patient account.   The debtor sent two checks (one for $500 and the other was actually a bank debit for $6,315)  and Franklin sent Taylor Made its portion but later the check was returned  NSF and the debit failed to go through.  Franklin requested that Taylor Made return the payments made to it.  Taylor Made refused and  Franklin sued Taylor Made for breach of contract and unjust enrichment.  The county court ordered Taylor Made to return the account payment to Franklin plus eight percent interest. Taylor Made appealed the verdict to county court, which also affirmed.  Taylor Made again appeals and the COA affirms finding that Taylor Made should have returned the funds mistakenly paid.

In the Matter of the Conservatorship of Margarette Smith: Constance Fitzmaurice v. Charles Vandevort, Conservator and In the Matter of the Will of Margarette Smith –   conservatorship/will/egregious breach of fiduciary duties – In 2009 Charles Vandevort filed a petition for conservatorship over 86 year-old  Margarette Smith.  Vandevort had lived with Smith’s only child for ten years.  The child was dead but Smith had a granddaughter, Constance Fitzmaurice.  The court appointed Vandervort as conservator the same day even without any physician’s affidavits.  Vandervort then proceeded to loot Smith’s estate.  The next year Smith made out a will leaving everything to Vandervort. Smith died shortly thereafter and Vandervort probated the will.  In 2011 Constance filed to set aside the will. She also filed for contempt in the conservatorship proceeding alleging that Vandervort breached his fiduciary duties. The chancellor dismissed the contempt on statute of limitations grounds.  The COA reverses.

Khavaris Hill v. Hinds County, Mississippi, Sheriff Tyrone Lewis, in his Official Capacity and Deputy Bracey Coleman, in his Official Capacity –  Tort Claims Act – Hinds County officers were riding in an unmarked Sheriff’s car when they were passed by a car driven by Hill recklessly and at a high rate of speed.  The officers gave chase. Hill got on I-220, then exited the interstate, and hit a minivan.   When officers arrived, Hill’s car was smoking.  Hill was removed and taken away by ambulance.  He later filed suit in federal court.  That court dismissed the federal claims with prejudice and the state law claims without prejudice.  Hill them filed suit in state court.  That court granted summary judgment because Hill was committing criminal acts when the alleged tortious conduct was committed thereby barring any recovery under the Tort Claims Act, § 11-46-9(1)(c).  Hill appeals. The COA reverses finding a there were factual disputes with regard to reckless disregard and as far as whether he was involved in criminal activity,  Hill had a defense to the criminal charge in that the sheriff’s car was unmarked.

Jerrard T. Cook v. State of Mississippilwop for juvenile – Cook was charged with capital murder for the death of Marvin Durr committed in an attempt by Cook and one other to rob Durr. Cook pleaded guilty and the court sentenced him to serve “the rest of his natural life” in prison.  Cook was seventeen years old  at the time of the offense.  When  Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012) was decided nine years later, Cook filed for relief.   The trial court vacated Cook’s sentence and held a re-sentencing hearing after which the trial court  ordered Cook to serve a life sentence without the possibility of parole. The COA affirms.

Peter J. Patricola, Administrator of the Estate of Lanitia Patricola v. Imperial Palace of Mississippi, LLC d/b/a Imperial Palace Casino, Resort & Spapremises liability – Lanitia Patricola slipped and fell on a small puddle in the lobby of the Imperial Palace
Casino in Biloxi. She alleged that the puddle was created by condensation dripping from an air conditioning vent overhead; she testified that the ceiling around it was
stained and that there were drops of water still hanging from the vent immediately after her fall.  The trial court granted summary judgment for the casino.  Patricola appeals and the COA reverses.

James Curtis Clark  v. State of Mississippi –  ineffective assistance for failing to request lesser included instruction – A home invasion in Hattiesburg in May  2014, ended with one person dead and another wounded. Three people were indicted for the crime.  Two took deals and testified against Clark who was convicted of 2d degree murder and agg. assault.  On appeal he argues that his counsel was ineffective for failing to submit a culpable-negligence manslaughter instruction.  “Here, there was no  evidentiary basis for a culpable-negligence instruction. Clark’s theory of defense was that he was not the shooter at all. Clark has also failed to show how he was prejudiced by his attorney’s actions. Even if the jury had been instructed on culpable negligence, Clark cannot show how the outcome of his trial would have been different.”

Keith Friston  v. State of Mississippi –  double jeopardy – In August  2013, Clarksdale police  responded to an automobile accident and found an Alero that had run into a brick wall.  One person was injured and another deceased.  The injured passenger identified the driver as Friston who had left the scene.  Friston was arrested and tested positive for the presence of marijuana and had a blood-alcohol level of .19.  Friston was charged and convicted of aggravated driving under the influence and felony leaving the scene of an accident. On appeal he argues that his right to double jeopardy was violated when the first trial ended in a mistrial because the forensic pathologist was ill and unable to attend the trial.   The COA finds no double jeopardy problem.  Friston also argues that the trial court erred in excluding the testimony of Friston’s employer who had testified at Friston’s first trial that Friston never drove because he was always drunk (and even though the Alero was Friston’s car).  During the retrial, defense counsel advised the court that based on a  conversation he had with Houston on a break, he anticipated that Houston’s testimony would be contrary to his former trial testimony and, as a result, defense counsel requested that he be allowed to call Houston as a witness in order to impeach him with his former trial testimony.   The court noted the problem with using impeachment evidence as substantive evidence (i.e. it’s not allowed).  The COA finds that the court did not exclude Houston but merely ruled that Friston could not use impeachment evidence as substantive evidence.  Nor was it error for the court to refuse to allow Friston to introduce Houston’s former testimony inasmuch as the record indicates that Houston was very much available to testify. The COA affirms.

John Calvin Howard v. Rolin Enterprises, LLC, Linda Walker, Individually and Doing Business as Rolin Enterprises, LLC, and Charlie Norrell –  premises liability/final judgment rule  – John  Howard attended a party at the Claiborne County Convention Center  where he was assaulted by a group of fellow partygoers.  He filed suit against  Linda Walker, the owner of the Convention Center, in her individual capacity and doing business as Rolin Enterprises, LLC; Charlie Norrell, who provided security services for the party, in his individual capacity and doing business as Celebrity 1 Security; and Triston Moore, who coordinated the event.  Walker and Rolin filed a motion for summary judgment, which the court granted.   Howard appealed.  The COA dismisses the appeal for lack of jurisdiction.  “Because the circuit court’s summary-judgment order and subsequent final judgment did not dispose of all parties involved in this matter or certify that the final judgment was entered pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, we must dismiss the appeal for lack of jurisdiction.”



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