Decisions – COA- Sept. 11, 2017

Premier Entertainment Biloxi, LLC d/b/a Hard Rock Hotel & Casino v. P.T.E. Systems International, LLC –  breach of contract –  Roy Anderson Corporation was the general contractor for the Hard Rock Casino.  After several post-tension cables failed, Anderson submitted a claim for costs associated with the cable failure to the insurance company for Premier Entertainment Biloxi LLC d/b/a/ Hard Rock Hotel & Casino.  When Premier failed to pay, Anderson sued for breach of contract alleging that Premier was contractually required to purchase and maintain a builder’s “all-risk” insurance and was liable for costs not covered by insurance.  Premier  filed a third-party action against the cable supplier  P.T.E. Systems International for the failure of its product.   PTE filed a motion  to dismiss, which the circuit court granted, concluding there existed no “implied contractual indemnity” against PTE for Anderson’s claims. Premier appealed.  The COA reverses finding that “the claim for common-law indemnity is not an independent cause of action and is a proper third-party claim under Rule 14.”  “As Premier notes in its brief, if Anderson is successful in its suit against Premier, ‘and it is judicially determined that
[Premier] has contractual liability for the damages associated with the PTE cable breaks,
[Premier] will have to pay [Anderson] significant damages under legal compulsion.'”

Telecom Tower Group, LLC v. Honeysuckle Creek Holdings, Inc –  lien/garnishment – In 2006, HCH leased   .23 acres of land from  Judy Washington to build  a cellular tower.  HCH then agreed to its lessee’s interest in the land to Cross Development.   In Cross finished building the tower. HCH had entered into an agreement with  Cingular to use the tower Cingular unilaterally decided not to honor the tower-lease agreement and the the tower went unused for eleven months. In late 2007, Cross entered a separate tower lease with Cingular, which installed its equipment on the tower. Cross refused to pay HCH for the assignment of the land lease because Cross incurred damages due to the eleven-month delay in obtaining a paying tower lease.  In January 2008, HCH sued Cross for breach of contract.  Cross assigned the lease to Telecom.  The chancellor ruled that HCH could satisfy its equitable lien against by garnishing income that Telecom received from cellular tower leases. Telecom appealed. The COA affirms.

Marcus Shelby v. State of Mississippisufficiency of the evidence – Marcus Shelby was convicted of murdering Duan Penn.  Penn’s body had been found in south Jackson. It was on fire surrounded by  fragments of blue tarpaulin and woven rope.  Apparently several people killed Penn because it was alleged he had been involved in a break in at the  home of Mercellos Coleman.  On appeal he raises only that the verdict was against the weight of the evidence. The COA affirms.

Fred Hill, III v. State of Mississippi –  suppression motion – Hill was convicted of first-degree murder (he killed Timothy  Green for trying to steal his girlfriend), shooting into a dwelling, and felon in possession of a firearm. On appeal he argues that the verdict was against the weight of the evidence and/or that the evidence was insufficient.  He also argues that the court erred in denying his motion to suppress his confession and the search of his car.  The day Green died, Hill asked Green’s father where Green was and said he was going to kill him.  Later, Green’s father and his wife saw Hill run between their trailer and their daughter’s trailer and heard gunshots.  They rushed out and found Green with two bullet wounds in his body.  So the evidence was pretty sufficient.  As far as the suppression motions, Hill argued that he only confessed because officers threatened to arrest his girlfriend  Keirra Magee.  The COA affirms.

Jasprell Dillard v. State of Mississippi –  Lindsey brief – Jasprell Dillard was convicted  of aggravated assault with a firearm.  He shot Joshua Hampton while Hampton was driving slowly down a street in Shaw, Mississippi.  Hampton identified Dillard as the shooter.  Dillard was angry that Hampton was dating the mother of Dillard’s child. Appointed counsel filed a Lindsey brief stating that no issues could be found for appeal. The COA agrees and affirms.

Kendrick Jemond Dunnaway  v. State of Mississippi Lindsey brief – Kendrick Dunnaway was convicted  of possession of a controlled substance with intent to distribute and
sentenced as a habitual offender to twenty-five years  without  parole.  On appeal his appointed counsel filed  Lindsey brief. Dunnaway was given the opportunity to file a supplemental brief and did not do so.  The COA finds no reversible error in the trial and affirms.

The Estate of Jack Howard Bankston, Deceased: Victoria Bankston v. CLC of Biloxi, LLC d/b/a Biloxi Community Living Centerarbitration – In December 2012, Jack Bankston fell at his home and suffered serious injuries. He underwent spinal surgery at UMMC. He was later  transferred to a long-term acute-care center, Regency, at Forrest General
Hospital where he stay for 25 days before being discharged to Biloxi Community Living Center (CLC). That same day he climbed out of his bed several times.  That night he was taken to the ER at Biloxi Regional Medical Center. He died the next day.  His estate sued CLC. CLC’s motion to compel arbitration was granted.  The estate appealed and the COA reverses.    The question in this case is whether Bankston lacked capacity.  Bankston’s wife had signed the admission agreement with CLC as a family member.   The COA finds that the trial court erred in relying on the medical records to prove that Bankston lacked capacity.

This Court must follow the plain and unequivocal language of the statute and require that, in order for one to act as a health-care surrogate, there must first be a determination of a lack of capacity by a patient’s primary physician.” HHRC, 176 So. 3d at 23 (¶22) (quoting Adams Cmty Care, 37 So. 3d at 1159 (¶11)). Because there is no evidence that Dr. Kahler determined that Jack lacked capacity, Victoria lacked the authority to act as his healthcare surrogate and thus bind him to arbitration.


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