Decisions – Miss.S.Ct. – Nov. 2, 2017

Cyndy Howarth, Individually, Wife, Wrongful Death Beneficiary, and as Executrix of the Estate of Richard Howarth, Jr., Deceased, Juliet Howarth McDonald, Individually, Daughter, and as Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased, and Cyndy Howarth, as Guardian, Natural Mother and Next Friend of Cynthia Howarth, a Minor and Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased v. M & H Ventures, LLC –  suing a sole member LLC –  Richard H. Howarth, Jr. was killed in January 2012 when the plane he was piloting crashed on January 16, 2012, shortly after takeoff nearly Philadelphia, Mississippi.  Six years previously,  Howarth created a Montana Limited Liability Company, M & H Ventures, LLC, for the purpose of investing in real estate.  Howarth was the only member of the LLC.   The airplane involved in the crash was purchased in October of 2011 by M & H.  Howarth’s estate sued M&H as well as the person responsible for servicing the plane,  Tracey Easom.  The trial court dismissed M&H on summary judgment holding that a party cannot sue itself.  Howarth appeals. The Miss.S.Ct. affirms.

In this case, the wrongful death beneficiaries seek to recover from M&H Ventures based on the negligent acts or omissions of the pilot, Howarth. But because Howarth was the sole member of M&H Ventures and it had no employees, M&H Ventures could act or fail to act only through Howarth. Under Section 11-7-15, damages must be reduced in proportion to the negligence of the person injured. Miss. Code Ann. § 11-7-15 (Rev. 2004). We note that, if Howarth had survived the crash, he would have been unable to recover from M&H Ventures for his own negligence. Howarth’s wrongful death beneficiaries stand in his shoes  and also cannot recover for his negligence. Because M&H Ventures could act only through Howarth, and the wrongful death beneficiaries are barred from recovering for Howarth’s negligence, the trial court properly granted summary judgment to M&H Ventures.

 

 

Curtis Giovanni Flowers  v. State of MississippiBatson  – Flowers has been tried over and over again for the July 1996 shooting of the owner and three workers at a Winona furniture store from which he had been recently fired.  In 2014, the Mississippi Supreme Court finally affirmed what was Flowers’ sixth trial.  The United States Supreme Court granted cert. and vacated the Miss. S.Ct.’s opinion in light of  Foster v. Chatman, 136 S. Ct. 1737 (2016), involving whether  the prosecution’s use of peremptory strikes was racially motivated in violation of Batson.   The Miss.S.Ct. asked for supplemental briefs and now finds no Batson violation. .

 

 

Graceland Care Center of New Albany, LLC, Advanced Healthcare Management, Inc., Karen Clayton, in her Official Capacity as Administrator of Graceland Care Center of New Albany, W. Larry Overstreet and Sharon Windham v. Teresa Hamlet, on Behalf of Jimmy Kinard, Deceased – extension of time to serve process –  The Court denies rehearing but substitutes its opnion – When Hamlet’s brother died, she  filed a wrongful death suit against various medical providers.  The day before the 120 days for service of  the summons ran, she filed a motion to extend the time for service.  Ten days later the judge signed an order granting an additional 60 days.   The order was entered on April 14, 2015, one day prior to the expiration of the 60 days.  Hamlet served three defendants on April 14.   That same day she filed for a second extension.  On April 16, 2015, the trial court signed an order granting an additional 60 days.   That order was entered July 14, 2015.  One of the defendants, Graceland, that was served on April 14, 2015, moved to dismiss arguing that because the 120 deadline had expired prior to Hamlet securing a signed and filed order extending the time for service, she should have been required to show good cause to get an extension.  Hamlet argued that because she filed her motion for time prior to the expiration of the 120 days, she did not need to show good cause.  The trial court denied the motion to dismiss.  Graceland asked for an interlocutory appeal which was granted.  The Miss.S.Ct. affirms but rules that “in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge’s control. Ex parte orders, though, are still required to be filed promptly into the record. However, in cases in which more than one party is involved and notice becomes essential, we find that an order becomes effective once it is entered officially into the record by the court clerk.”

 

The Court amends Canon 5F(3) of the  Code of Judicial Conduct to add, inter alia, provisions for notice to the subject of a complaint, and an opportunity to respond.

 

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