Decisions – COA – 1/23/2018

Dalton Ray Stewart v. Dynamic Environmental Services, LLC and HDI-Gerling America Insurance Company –  workers comp. –  Stewart was working for Dynamic Environmental when he was injured when the car he was driving for his employer rolled over in Reagan County Texas.   The only dispute here is whether  Mississippi has jurisdiction.  The AJ and the Commission agreed with Dynamic that Stewart was hired in Texas to work in Texas for Dynamic. Stewart worked for Dynamic twice.  The first time, he was invited to apply for a job by a  Dynamic employee who lived in Morton. Stewart  was given a physical examination at an MEA Medical Clinic in Pearl, Mississippi. He then began working as a truck driver  and primarily drove within the State of Texas.  In 2013 he quit and returned to Mississippi. In 2014 he applied for rehire  and completed his pre-employment paperwork, drug testing and background check in Charlotte, Texas.  He was rehired to drive trucks in Texas. According to Dynamic, Stewart originally filed his claim in Texas but became dissatisfied with the designated doctor’s report, he filed a claim in Mississippi. The lower court held that Mississippi lacked jurisdiction. The COA agrees and affirms.

Andrew McConnell v. Carl Hoganpremises liability – The caretaker of Carl Hogan’s home gave Laurie Livingston permission to use Hogans backyard pool.  On June 15, 2013, McConnell visited Hogan’s residence to swim in his pool. Laurie invited several other
family members to join her at the pool.  The pool was designed to resemble a lagoon.  Andrew McConnell dove off a large rock outside of the middle of the pool and into the shallow end.   He suffered a cracked skull and broken neck/back.  He later filed suit against Hogan.  The trial court granted summary judgment for Hogan. The COA affirms finding that McConnell was a licensee and Hogan did not willfully or wantonly injure McConnell.  Nor could the pool be classified as a hidden peril.

Eddie Earl Davis  v. State of Mississippi –  Lindsey brief – Eddie Davis was convicted of possession of methamphetamine after he was caught with it clutched in his hand during a traffic stop.  Davis contested the legality of the stop at trial and lost. On appeal he is represented by the Office of the Public Defender which filed a Lindsey brief.  The COA affirms.

R.D. Collins and Nancy Collins v. Moore Family Trust 1999 –  adverse possession – This is a dispute over land in Hinds County.  The Moore Family Trust owns the land on one side.  The Collinses purchased adjacent land in 1984.  In 2015,  both landowners got surveys done.  Both surveys showed the contested .62 acre parcel was within the Collinses’ deed
description.  However, the Moore Family Trust survey indicated the parcel might belong to the  Moores by adverse possession. The Collinses claimed that they had given permission to the Moores to use the parcel. The chancellor found the Moores established all the elements required for adverse possession. The Collinses appealed. The COA affirms.

David Michael Lyon Jr. v. Billy McGeealienation of affection – In 2013, Robin, after 14 years of marriage and two children, asked Lyon for a divorce “out of the blue.” Three months later they separated.  They ended up getting an irreconcilable differences divorce in June 2014. In October Lyon sued McGee for alienation of affection  claiming to have discovered the relationship in October 2013 after the couple had separated but before they were divorced. McGee moved for summary judgment citing the lack of any evidence that Robin and McGee were involved prior to the Lyons’ separation and, thus, no causation. The trial court granted the motion and Lyon appealed. The COA affirms.

Timothy M. Benton v. Elizabeth A. Bentonvaluing the  marital estate, child support and alimony – Tim and Beth  married in 2000 and proceeded to have four children.  Their  income was provided by Tim’s businesses: Tim Benton Tree Service and Benton Green LLC.  Beth occasionally assisted Tim with the businesses.  In 2014, Beth filed for divorce on the grounds of willful, continued, and obstinate constructive desertion for more than one year and  habitual cruel and inhuman treatment.  Tim did not file a response. Tim refused to provide financial records.  In 2016, the court granted Beth a divorce on the ground of habitual cruel and inhuman treatment.  Relying on Both’s 8.05 and invoices and bank statements obtained by Beth from the home, the court held that Tim had an adjusted gross income of $17,640.75 per month, on average. He ordered child support of $2,500 per month, ordered  Tim to pay all tuition and expenses for the children’s private schooling, all extracurricular expenses for the children, and all medical expenses not covered by the government-assistance program provided to Beth. The chancellor  also ordered Tim to pay Beth permanent periodic alimony in the sum of $6,000 per month and to maintain life insurance in the amount of $250,000.  Tim appealed. Unsurprisingly, The COA affirms.

Curtis Ray McCarty Jr. v. Arthur Wood III and Paula Woodeminent domain – Curtis Ray McCarty Jr. has some  thirty-five acres of land in rural Wayne County with no access.  Until 2004, he was using a dirt and gravel private road that crossed the lands of neighboring property owners. But in that year, landowner Arthur Wood III objected.  McCarty sued Wood in both chancery and circuit courts but the lawsuits were dismissed with prejudice. He then filed a petition in the Wayne County Special Court of Eminent Domain to establish a “private road” pursuant to Mississippi Code Annotated section 65-7-201 (Rev. 2012). The trial court held that the petition was barred by res judicata. The COA reverses. “First, his present petition involves different ‘underlying facts and circumstances’ than his prior lawsuits, so there is no “identity of the cause of action.” Id. at (¶13). Second, a statutory petition for a private road could not have been brought in either of McCarty’s prior lawsuits or combined with the common-law claims asserted in those lawsuits. Id. at (¶10).”

Charles Wright v. Turan-Foley Motors, Inc., Mississippi Automobile Dealers Association, and Dr. Rahul Vohraworkers comp. –  Charles Wright worked for Carrier Turan Foley Motors for thirteen years as a mechanic balancing and aligning tires.  One day in 2013 after a regular work day  he woke up with terrible pain in his back and legs.  Although he wasn’t supposed to work that day, he went by there to report his injury.  According to his employer, Wright had a long history of   back and knee problems  dating back to 2002.  It argued  that his pain in 2013 was solely a result of his bad back and arthritic knees and not a new injury or even  the exacerbation of an old injury. Wright filed a petition to controvert.  The employer  hired Dr. Rahul Vohra to do an independent medical examination.  Wright issued a subpoena duces tecum seeking information regarding Dr. Vohra’s  income from similar work performed in the past five years, along with all financial documents related to any independent, Rule 35, or employer-requested medical examinations.  The judge quashed the subpoena and sanctioned Wright’s attorneys $5000 to pay for Dr. Vohra’s attorneys fee after Wright  filed multiple discovery motions regarding the subpoena and deposition of Dr. Vohra. The AJ and the Commission found that Wright had not suffered a compensable injury.  Wright appealed that finding as well as the AJ’s quashing the subpoena.  The employer argues that even if Wright was entitled to query Dr. Vohra regarding his work for employers in workers comp cases, Wright was able to do so here during cross-examination wherein Dr. Vohra admitted to doing  hundreds of examinations on behalf of employers. The COA affirms the  Commission’s finding that Wright failed to meet his burden of proving that he sustained a work-related injury that aggravated any of his preexisting conditions.  The Court also finds that the Commission did not err by quashing Wright’s subpoena to Dr. Vohra or by denying Wright’s motion to strike or exclude Dr. Vohra’s deposition. However, the Commission erred in sanctioning Wright’s attorney.  That part of the decision is reversed and rendered.

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