Decisions – COA – Oct. 3, 2017

Jerry W. Paige d/b/a Paige Electric Company, LLC v. Wells Fargo and Company commercial paper – Bret Gibson leased storage space from Paige and owed $80,000.  In 2006, Gibson tendered as payment an $83,972  check issued by Fidelity and Deposit Company payable to Jim Wylie and HomeEq. Service Corporation (later Wells Fargo). Paige contacted Wylie to confirm the endorsement was correct.  It then deposited the check.   Five months later HomeEq contended that the check had been wrongfully endorsed.  Bancorp South placed a hold on Paige’s bank account but then lifted it.  A year later it did so again and in March 2008 it deducted the amount from Paige’s account.  In May 2010, Paige sued Bancorp South and Wells Fargo.  Wells Fargo moved to dismiss on the grounds that Paige did not have an account with it.  Some years later Paige added additional claims against Wells Fargo.  The trial court dismissed the case against Wells Fargo.  On appeal the COA affirms. “Paige Electric argues that an unauthorized debit from its checking account was a wrongful recovery and tantamount to conversion.”   But Paige did not sue under the UCC section that addresses the wrongful recovery of funds obtained by a fraudulent endorsement.

Glen Joseph Davis  v. State of Mississippi –  Lindsey brief – Davis was convicted of murdering 83-year-old Maurice Colly whose body was  found dead in the trunk of his car from blunt force injuries.  Davis was identified as a suspect and was arrested after being featured on America’s Most Wanted.  On appeal his attorney filed a Lindsey brief.  Davis filed gius own brief.  The COA finds no issues warranting reversal and passes on the Davis’ ineffective assistance claims for presentation in post conviction.

Denise L. Inge v. Evie Inge –  distribution of the marital estate – Denise and Evie were married for 25 years when in 2001 Denise filed for divorce.  The case sat on the docket for 14 years and the parties eventually  consented to an irreconcilable differences
divorce.  After a hearing,  the chancellor awarded each party their respective retirement accounts and awarded Denise the marital home upon payment of $45,000 to Evie for his interest in the home. On appeal, Denise argues that the chancellor ordered her to pay Evie too much.  The COA affirms.

Edith Davis Elmore v. Dixie Pipeline Company –  pipeline explosion – On November 1, 2007, a liquid propane  pipeline ruptured near Carmichael, Mississippi. As a result of the rupture, liquid propane was released, some of which vaporized and exploded.   Elmore owned a house located approximately 1.1 miles from the accident site. Elmore sued Dixie Pipeline claiming  her house suffered structural damage as a result of the shockwaves from the explosion.  The NTSB investigated the pipeline rupture and concluded that the rupture was probably die to the failure of a weld that caused the pipe to fracture along the longitudinal seam weld and not any negligence by Dixie Pipeline. Dixie moved for summary judgment.  It also filed a motion to exclude the opinions and testimony of Elmore’s expert witness, Dr. Kendall Clarke.  The court granted it in part and disallowed Dr.  Clarke from offering opinion testimony regarding the standard of care
for pipeline operators, or any violation of that standard of care by Dixie.  The court then granted summary judgment for Dixie Pipeline.  On appeal Elmore argues that the court erred in not ordering the production of the corporate deposition taken in the Texas litigation.  But Elmore acknowledges that she did not request production of the deposition until after discovery had closed.  The COA holds that the trial court did not abuse its discretion in denying this discovery request. As for Dr. Clark,   Dr. Clarke’s opinions did not include a violation of the federal regulations. But the  pipeline was subject to the federal safety regulations for hazardous liquid pipelines. Dr. Clarke admitted that he had no familiarity with the federal regulations that govern integrity management for the pipeline.  Instead, Dr. Clarke used the API code.  While the pipe was made of  API-grade steel pipe and manufactured according to API standards, it was not  manufactured by Dixie.  Operation of the pipeline is covered by federal regulations and, thus, it was not error for the court to exclude Dr. Clark’s opinions with regard to negligence where he was not familiar with the appropriate standards.

Maria Lynn Pruitt Simmons v. Harrison County Department of Human Services –  termination of parental rights –  Simmons appealed the termination of parental rights concerning her son Justin, the third of her five children.  All five of her children were taken into DHS custody in August of 2011, after they were found living
in unsanitary and deplorable conditions.  In December, 2011, Justin was adjudicated a neglected child and placed in a psychiatric treatment facility.  DHS had a reunification plan for all 5 children but  Simmons failed to comply with the plan. When DHS filed to terminate parental rights to Justin, Simmons did not appear at the hearing.  When her rights were terminated, she filed a motion for relief from judgment.  The trial court denied it and the COA affirms.

Marlin Business Bank v. Stevens Auction Company and John D. Stevensenrollment of foreign judgment –   Stevens Auction Company, located in Aberdeen, hired Security Depot, Inc., to install security cameras.   The work order contained a forum-selection clause  providing that the laws of Georgia controlled.  A second contract was signed with Marlin, a third-party finance company. The new contract provided that Stevens give his personal guarantee.   Shortly after installation, the equipment malfunctioned.  Stevens contacted both Security Depot and Marlin but could not get them to repair the equipment. Stevens ceased making payment.  Marlin then filed  suit against Stevens in a Philadelphia Municipal Court in Pennsylvania. Stevens did not respond and a default judgment of  $11,459.50, was entered  against Stevens.  In January 2015, Marlin filed a notice of enrollment of the Pennsylvania judgment in Monroe County.  Stevens challenged the motion and the circuit court held that Stevens was the victim of a “bait and switch” by Security Depot and Marlin and declined to allow the Pennsylvania judgment be enrolled.  Marlin appeals. The COA reverses. Stevens never asserted that the Pennsylvania court lacked jurisdiction, only that it was inconvenient. “The question of whether there was a “bait and switch” or fraud in the execution or inducement of the contract was beyond the scope of the hearing on whether to allow the foreign judgment to be enrolled.”

Joshua Seymour, as Administrator of the Estate of Brenda F. Seymour, Deceased v. Richard G.Turner, Deceasedjoint tenancy with rights of survivorship – Brenda Seymour and Richard Turner met in 1984 and became a couple.  In 1995, they purchased a home. The deed indicated that they  were “joint tenants with express right of survivorship, and not tenants in common.”  In 2011, Brenda filed a complaint requesting partition.   Brenda then died and her estate was  substituted.  Since Richard failed to answer, the Estate filed for and got an entry of default.  Notwithstanding, the court found that  Richard owned the house by virtue of the right of survivorship once Brenda died. The Estate appeals arguing that one of the four unities – the unity of possession –  was lost once Brenda filed her complaint for partition.   The COA disagrees and affirms.

Bobbie Jean Lowe v. City of Moss Point, Mississippi, a Municipal Corporationpremises liability/Tort Claim Act –   Lowe attended a breast-cancer-awareness event  held in Moss Point, Mississippi.  When she walked back to her car, she stepped in a grass-covered hole, fell, and injured her ankle. She then filed suit against the City  alleging that it was negligent in its maintenance of the lawn and facility at Pelican Landing.  The trial court granted summary judgment for the City finding that it was  immune from suit for a discretionary function since lawn maintenance is a discretionary function.  Lowe appeals and the City affirms.

Pro se PCR appeals affirmed:

Wallace Wayne Whatley  v. State of Mississippi

Vincent Young  v. State of Mississippi

Thomas J. Hooghe  v. State of Mississippi

Terrell G. Bass  v. State of Mississippi

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