Decisions – Miss.S.Ct. – Oct. 5, 2017

Douglas Michael Long, Jr. v. David J. Vitkauskas – service by registered mail – Long sued Vitkauskas for alienation of affections.  Vitkauskas moved to dismiss based on insufficient service of process because Vitkauskas was served via MRCP 4(c)(5) – via registered mail – and someone other than himself, Mary Bre,  signed the return receipt.  The circuit court granted the motion and the COA affirms.  The Miss.S.Ct. granted cert. and reverses and remands. “Because ‘restricted delivery’ limits the delivery of mail ‘to the addressee or to the person authorized in writing as the addressee’s agent,’

a rebuttable presumption arises that the return receipt was signed by the defendant or his authorized agent.”   In this case, Vitkauskas never argued that Mary was not his authorized agent, nor did he state that he failed to receive process.  Nor did he offer any proof on this issue.  If he had done so, the burden would have shifted to Long to prove Mary was an authorized agent of  Vitkauskas.  But since this did not happen, service was proper.

Estate of Russell Puckett v. Carol Clement –  statute of limitations/service of process – Carol Clement lived near Russell Puckett.  She claims that  had told her she could have the two planters on his front porch when he either passed away or closed the antique store where he also lived.  In September 2009, when Carol  hadn’t seen any activity in the house for months and she had heard that Puckett died, she and her daughter went and took one of the planters.  As they were carrying it to Carol’s home, Puckett started firing a shotgun.  Carol was struck twice and the planter exploded.  She sued Puckett for her injuries in June of 2010.  She was granted five extensions to serve process.  In August 2014, she filed a suggestion of death and to amend her complaint to substitute Puckett’s estate.  The trial court allowed it and she served the estate. The estate moved to dismiss based on the statute of limitations.  The trial court denied the motion and the estate was granted an interlocutory appeal.  The Miss.S.Ct. reverses.

Assuming all of Clement’s extensions of time were proper and tolled the statute of
limitations, she still failed to perfect service before the expiration of the statute of limitations, and her suit is barred. The statute of limitations began running in this case on September 11, 2009. On June 11, 2010, Clement filed the complaint and tolled the statutes with ninety-three days remaining. The statute began running again in the interim periods between the third and fourth extensions of time and the fourth and fifth extensions of time. After the fifth extension expired on February 28, 2012, the statute of limitations resumed running and expired on March 16, 2012. Clement did not serve process on Puckett or the Estate until August 25, 2014. Therefore, Clement’s suit is barred by the statute of limitations, and the trial court erred in denying the Estate’s motion to dismiss.

Whitney Bank f/k/a Hancock Bank, A Mississippi State Chartered Bank d/b/a Hancock Bank v. Triangle Construction Company, Inc.priority of liens – Knight Properties purchased a piece of property.  It got a line of credit from  Hancock Bank in the amount of $2.25 million.  In approving the loan, Hancock checked out the contractor,  Triangle Construction Company, Inc.,   Knight later conveyed the property to Reunion of Biloxi
Development LLC.  Reunion assumed Knight’s debt to Hancock and a new promissory note in the amount of approximately $1.9 million was signed. When the property owner eventually defaulted, the construction lender foreclosed the property.  It had a materialman’s lien on the property. At the foreclosure sale, the purchase price for the property was significantly lower than the total amounts owed.  At trial, the question was which lien had priority,  the construction lender, or the contractor. The chancery court  found that  Hancock failed to use reasonable diligence in disbursing the construction loan. It thus ruled that Triangle’s lien had priority over Hancock’s deed of trust, and that Triangle must be paid first out of the foreclosure proceeds found that the contractor’s lien had priority. The Mississippi Supreme Court affirms.

William Wells v. State of Mississippi –  self defense/imminent danger – On August 3, 2015, William B. Wells shot and killed Kendrick Brown in front of the Madison County Courthouse.  He was convicted of Brown’s murder.  On appeal he argues that the trial court erred in not allowing him to get into all the facts leading up to his killing of Brown.  Apparently Brown was a drug dealer and had made a sale to Well’s mother who was acting as a confidential informant.  Wells wanted to put on proof of Brown’s prior convictions as well as evidence that various unidentified people claimed that that Brown had put a hit out on Wells’  mother.  Indeed, someone had shot into her car as she was driving.  Wells’ defense was that he shot Brown because his mother was in danger.  The State had no problem with Wells adducing evidence that Brown was a drug dealer who had sold drugs to Wells’ mother while she was working as a CI. It asked the Court to exclude Brown’s  priors as well as any hearsay about threats.  The trial court excluded much of the evidence because there was no evidence that Wells’ mother was in imminent danger.  On appeal, the Mississippi Supreme Court agrees. “Here, Wells’ mother was not even on the premises.  Thus, at the time Wells shot Brown, neither Wells nor his mother was in imminent danger.”

Though Wells claims that he was denied his opportunity to present his theory or
theories of his case, Wells argues only that the evidence was relevant to show his state of mind at the time he shot Brown, but proving his state of mind alone does not make the evidence admissible when he did not present the circuit court any evidence or authority that would make self defense/defense of others or manslaughter viable defenses.

The Court amends MRAP 22a governing post conviction motions  and strikes MRAP 24 which states that the court will sit in panels of three.

 

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