Decisions – MSSC – 2/15/18

KD Hattiesburg 1128, Inc., KD Hattiesburg II 1128A, Inc., Kimco Hattiesburg L.P., Kimco Hattiesburg II, L.P. and Kimco Developers, Inc. v. Turtle Creek Crossing, LLC –  jurisdiction of partnership dispute – Kimco Hattiesburg, L.P., was formed in 2004 to develop “Phase I” of the Turtle Creek Crossing shopping center in  Hattiesburg.  KD Hattiesburg 1128, Inc., had  a one-percent interest. Kimco Developers, Inc.,  had a  forty-nine-percent interest and  Turtle Creek Crossing, LLC, had  a fifty-percent interest. In 2012,  Turtle Creek Crossing transferred half of its interest in the partnership to one of its members, Eric Seitz, who then  transferred his interest to Kimco Developers.  In 2007, a second limited partnership, Kimco Hattiesburg II, L.P., was formed to develop “Phase II.”  It ended up with the same ownership as the original Kimco.  In  2015, general partner KD Hattiesburg 1128 notified Turtle Creek Crossing that a third party had offered $42,569,000 to buy Kimco Hattiesburg’s single asset—Phase I of the Turtle Creek Crossing shopping center. That same day, KD Hattiesburg II 1128A notified Turtle Creek Commons of a third-party offer to buy Phase II for $5,531,000.  Eleven days later Turtle Creek Crossing filed a lawsuit in the Lamar County Circuit Court claiming that its partners breached their duty of fiducary duty in marketing the two properties together reducing their value and whose sale, at a reduced rate, would garner no profits for Turtle Creek.  Kimco filed a motion to transfer to chancery which was denied.  Kimco sought and was granted an interlocutory appeal.  The MSSC affirms the denial of the motion to transfer and remands. It holds that this case could have been brought in either circuit or chancery and, with that being the case, Turtle Creek’s decision to file in circuit court must be respected.

Patrick Ridgeway v. Louise Ridgeway Hooker –  jurisdiction over divorce where defendant not served but  appears anyway (or civ. pro. 101) –  -Ridgeway filed for an ID divorce against Hooker  in Hinds County in 2013.  A year later they managed to enter into a property settlement agreement and got their divorce. A year later, Hooker filed a motion for contempt. Ridgeway responded by filing a motion for relief from judgment claiming the divorce was void because the court lacked jurisdiction over Ridgeway inasmuch as she had never been served with process (seriously?). She claimed (rightfully so), that she had waived service of process by appearing anyway and that he was estopped from making such an argument anyway because he remarried on the day they divorced. The trial court didn’t buy Ridgeway’s ridiculous argument and denied relief. He appealed.  Meanwhile, Hooker was still trying to be heard on the contempt. Ridgeway asked for a stay pending the appeal. Ridgeway then announced he would no longer makes  alimony payments because he was living with some guy.  The chancellor ruled  that it had no jurisdiction to hear the dispute while the case was pending on appeal.  Ridgeway then filed an interlocutory appeal which was granted. On appeal, the MSSC finds that the chancellor was correct in refusing to set aside the divorce based on Ridgeway’s  argument that the court lacked jurisdiction because Hooker was not served with process. As for Ridgeway’s remarriage, he argues that the MSSC could not decide this issue because the marriage certificate was not part of the original record.  The Court holds that on remand, the chancellor can consider whether it can take notice of  the marriage certificate and whether Ridgeway is estopped from challenging the validity of his divorce.


Montrell Jordan v. State of Mississippi post conviction – the MSSC denies Jordan’s second post conviction petition but Justice Kitchens dissents finding that Jordan should be granted a new trial based on the  DA having a romantic relationship with the lead investigator on the case – a relationship that was never disclosed to the defendant.

Illinois Central Railroad Company v. Bennie Oakes, Deceased, by and through Clara Hagan, His Representative – setoff–  Oakes sued Illinois Central for asbestos-related injuries he suffered as a result of working for the railroad.  The jury found damages of $250,000 and assessed Oakes with 80% negligence and Illinois Central with 20%; the verdict against Illinois Central was for $50,000.   Illinois Central moved for a setoff of Oakes’s damages, asserting that his award should be reduced by the amounts received from asbestosis trust funds and other sources for the same injury. The trial court denied the request and Illinois Central appealed. “Because the complaint was filed under the Federal Employers’ Liability Act (FELA) and that act seeks to fully compensate the employee for tortious conduct, we affirm the circuit court’s denial of the setof.” The MSSC granted cert., holds that Illinois Central is entitled to a setoff, and that the circuit court and the COA erred in analysing the issue as one of apportionment.  The Court reverses and remands.

Mississippi Baptist Health Systems, Inc., Baptist Medical Center – Leake, Inc., David Moody, M.D. and Madden Medical Clinic, PLLC v. Sylvia Dianne Harkins and Reggie Harkins –  venue where various medical providers in different counties   – this is an issue that has been hanging around ever since the legislature passed M.C.A. Sect. 11-11-3(3) which states that  lawsuits against medical providers must be brought only in the county wherein the providers are located: namely, what if you have two or more providers located in separate counties?  In 2014, Dianne and Reggie Harkins filed suit in Hinds County alleging that the negligence of  healthcare providers in Leake and Hinds  county resulted in the  amputation of Dianne Harkins’s hands and feet.  The Leake County medical providers moved to transfer the claims against them to Leake County. The trial court denied and the providers filed an interlocutory appeal.  The MSSC granted it and affirms.

Due to the permissive joinder of the Leake County Appellants and Baptist Medical Center, the claim can be brought in either of the two counties. Further, because the Court holds that the plain language allows permissive joinder, the Court will not address the additional arguments put forth by the parties regarding compulsory joinder, including claim and issue preclusion.

Brian Ray Pedigo v. Kristopher Robertson, Rent-A-Center, Inc. and Rent-A-Center East, Inc. –  The Court denies rehearing but modifies two paragraphs.




The City of Gulfport, Mississippi, A Municipal Corporation v. Dedeaux Utility Company, Inc. –  rate of interest on judgment – This is the third appeal (after three trials) arising out of Gulfport’s  1996 filing  petitions for condemnation against Orange Grove Utilities, Inc. and Dedeaux Utility Company, Inc. At the first trial, Dedeaux’s expert valued Dedeaux’s utility system at $9,025,500.00, and Gulfport’s expert valued the system at $2,140,000.00. The jury returned a for $3,634,757.00.  Both sides appealed and the Court reversed.  City of Gulfport I938 So.2d 840 (Miss. 2006). At the second trial, Dedeaux’s expert valued Dedeaux’s utility system at $9,846,288.00, and Gulfport’s expert valued the system at $3,691,328.00. The jury awarded Dedeaux $5,131,676.00. Both sides appealed.  City of Gulfport II, 63 So.3d 514 (Miss. 2011).

At the third trial, the jury awarded $8,063,981.00.  Again, both sides appealed. The City has thirteen issues with the trial including : 1) whether the trial court erred as a matter of law by requiring the parties to use different dates for valuing the assets existing on the date the Petition was filed (December 3, 1996) and valuing the assets added between the date the Petition was filed and the date the utility system was actually transferred to the City (December 20, 2004); 2) whether the trial court erred as a matter of law in denying the City’s Motion in Limine to Exclude Facilities Dedicated to the Public, causing the City to pay Dedeaux millions of dollars for facilities which were not owned by Dedeaux; 3) whether the trial court erred as a matter of law in limiting the setoff to which the City is entitled to the revenues produced by the assets added after December 3, 1996.   Dedeaux argues that the trial court erred in admitting certain testimony by the City’s expert and excluding certain testimony by Dedeaux’s expert. on appeal, the MSSC reverses and remand again. “Comments by the trial judge during the hearing confirm he erred by considering evidence not offered by either party after he procured evidence, before finding that the rate of return for the state-controlled pension fund (not available to the public) would be the rate of interest for these judgments, as opposed to market rates of interest.”

The Court adopts MRAP on appellate mediation.

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