Decisions – MSSCT – 12/14/2017

Cheryl L. High v. Todd Kuhn and Angela T. Kuhn –  eminent domain attorneys fees –  The Kuhns bought residential property that was landlocked and was accesses via a driveway over property belonging to High.  When High refused them access to the driveway, the Kuhns  petitioned the Harrison County Special Court of Eminent Domain for a private road across High’s property.  The court granted the petition.  On interlocutory appeal, the Miss.S.Ct. reversed on the grounds that  “Section 110 of the constitution clearly prohibits the Legislature from creating the statutory right to condemn for a private road property within an incorporated city or town.”  High then requested attorneys fees which the court denied on the grounds that since the Kuhns had no right to file the suit, none of the statutory provisions applied. . On appeal, the Mississippi Supreme Court reverses finding the court’s reasoning in error. On remand, the court should decide whether and to what extent High is entitled to attorneys fees.

State of Mississippi v. Willie Russell –  mental disability and death penalty – Russell was sentenced to death for killing a correctional guard.  He later filed to have his death sentence changed to life on the grounds that he was too intellectually disabled to be put to death pursuant to Atkins v. Virginia.  After a hearing the trial court granted the relief Russell requested. The state appealed arguing that the trial court erred when it refused to allow the state to evaluate Russell using its own expert.  The Mississippi Supreme Court agrees and reverses and remands for a new hearing only after the state is given an opportunity to have Russell evaluated.

Tunica County Board of Supervisors v. HWCC-Tunica, LLCad valorem tax hike – The Board of Supervisors of Tunica County the Board), ordered an ad valorem tax levy for fiscal year 2014-15.  After it did so it  advertised a public hearing of the proposed ad
valorem tax levy in the Tunica Times. The hearing took place and various taxpayers appeared and objected. One such taxpayer, Hollywood Casino,  filed a bill of exceptions and paid the taxes under protest.  The trial court held that the Board failed to  comply with statutory notice and public hearing requirements and, thus, ordered a refund. Tunica County appealed arguing that citizens had received actual notice and that was sufficient. It also argues that Hollywood Casino’s challenge should have been via M.C.A. Sect. 11-51-77 and not via a bill of exceptions pursuant to M.C.A. Sect.  11-51-75.  The Miss.S.Ct.  affirms.



In the Matter of the Estate of Dorothy Johnson, Deceased, Sheila West and Jennifer Patzius, Co-Executrices: Sheila West, Jennifer Patzius and Jessica McAlister v. Ron Johnson, Brad Johnson and Melanie Fowler –  power of attorney/self dealing – In 2005, Dorothy Johnson inherited a large sum of money from her sister.  She purchased 5 CDs valued at between $50,000 and $57,000.  Each CD was in Dorothy’s name along with two other relatives using “or” (e.g. “Dorothy Johnson or Jennifer Patzius or Melanie Fowler.”). Five years later with her health failing she gave a durable power of attorney to her daughter Sheila West. Sheila then  removed her brother’s, niece’s, and nephew’s names from the CDS and  replaced them with her own name and the names of her two daughters. Dorothy died shortly thereafter. When the will was probated, Dorothy’s son Ron Johnson challenged the will.  During the process he learned about the CDs and moved to set aside the changes made by Sheila as improper inter-vivos gifts.  Following a trial, the chancellor found that Sheila did not overcome a presumption of undue influence in making what amounted to inter vivos gifts and thereby reverted ownership of the CDs to their original form.  On appeal the Court finds that the chancellor’s reasoning was incorrect but that the results were correct.

This Court finds that, because Dorothy Johnson retained an ownership interest in all of the CDs at issue, neither the original conveyance nor Sheila’s subsequent transfers can be considered inter vivos gifts. Therefore, we find that the chancellor erred in his analysis of the issue.

However, also at issue in this matter is whether Sheila West engaged in self-dealing
under the durable power of attorney granted to her by Dorothy Johnson. While initially pleaded but not scrupulously argued by the parties, the reach of Sheila’s power as Dorothy’s attorney-in-fact was discussed during trial, creating a detailed record for this Court to review. Finding that Sheila failed to overcome the burden of undue influence created by the confidential relationship between herself and Dorothy, we affirm the chancellor’s decision to revert the CDs to their status prior to Sheila’s 2010 amendments.


H. Kenneth Lefoldt, Jr., in His Capacity as Trustee for the Natchez Regional Medical Center Liquidation Trust v. Donald Rentfro, Charles Mock, William Heburn, Leroy White, John Serafin, Linda Godley, Lionel Stepter, Lee Martin, William Ernst and Jennifer Russ – – Tort Claims Act  does not apply to suit by public entity – The Natchez Regional Medical Center filed for bankruptcy in 2014.  The Trustee sued the former directors and officers individually claiming that they were grossly negligent in failing to bill patients for services rendered, respond to federal audits, or properly oversee the credentialing of its doctors.  The defendants moved to dismiss on the grounds that they are immune from liability under the Miss. Tort Claims Act which does not allow governmental employees to be sued for acts or omissions that occurred within the scope of their employment. The Trustee appealed. The Fifth Circuit certified two questions of the MSSCT to answer.

1) Does the MTCA furnish the exclusive remedy for a bankruptcy trustee standing in the shoes of a public hospital corporation against the employees or directors of that public corporation?

2) If the answer to the foregoing question is affirmative, does the MTCA permit the trustee to pursue any of the claims identified in his complaint against the officers and directors of NRMC in their personal capacity?

The Miss.S.Ct. answers the first question “no.”

A careful reading of our laws reveals that a case such as presented today was not contemplated by the MTCA. The purpose of the MTCA is to protect public entities from being sued for the acts of their servants. It is perfectly clear that the Act does not refer to claims “by” the sovereign. Its application comes about only as to claims “against” the sovereign.


The Court denies cert in  Rothell Chambliss v. State of Mississippi  but Justice Kitchens objects and files a written statement which is joined by King.

The Court amends Canon 5f of the Code of Judicial Conduct which deals with appointments to the Special Committee on Judicial Election Campaign Intervention during judicial elections.

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