Decisions – MSSC – 5/17/2018

Hand down list

Mississippi Sand Solutions, LLC v. Bessie Otis, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Greg Cooper, Shirley Fisher Gray, Horace Darryl Fisher, Derrick Fisher, Ray W. Fisher, Sr., Larry Fisher, Michael C. Fisher, Sr., Cornelius Fisher, Sr., Diane Fisher Williams, Sharon Fisher Hill, Sheila Fisher Keys, Bridgett Winters, Ledoria Fisher Baldwin, Johnny L. Wright, James Fisher, Jr., Jimmy L. Wright, Membsey Fisher, Deceased, and Maggie Fisher, Deceasedeasement –  Mississippi Sand Solutions, LLC mined  gravel and sand  from a property in Warren County.  For years MSS accessed the property via a private road, C J Fisher Drive that crossed a property owned by the Fishers. Beginning in 2002, the parties squabbled over whether MSS was allowed to use the road. Finally, in 2014, the Fishers filed suit to declare any easement over the road invalid. After a hearing the court ruled that MSS did not have any type of easement. MSS appealed and the MSS affirms agreeing with the trial court that the initial use of the road was by permission.

Timothy Gene Pryer v. Thomas Gardner, IIIpro se lawsuit for records – Inmate Pryer filed a lawsuit requesting copies of records not in the circuit court’s files.  That request was denied. While that case was on appeal, Pryer sued the circuit court and sheriff  in chancery alleging that they were liable to him for failing to honor public records requests. He never served them but amended his lawsuit to sue the judge as well. The chancellor found that the judge was immune and that the SOL had expired.  Pryer appealed and the MSSC affirms.

SW 98/99, LLC v. Pike County, Mississippi, Lexie Elmore, Tazwell Bowsky, Aubrey L. Matthews, Venton Adams, Carroll L. Fortenberry, Joe B. Young, Tax Assessor, Chuck E. Lambert and Gary Honeatax appeal/dismissal for failure to prosecute – SW owns two low-income housing properties in Pike County which it operates as “affordable rental housing” under the federal tax code.   In 2005, the state legislature amended the Mississippi Code’s treatment of appraising  affordable rental housing.  SW claimed that the county ignored the new law and  continued to appraise SW’s properties using a “cost approach” method which included the value of certain federal tax credits.  SW filed objections which were denied. It appealed the denial in circuit court and sued the  supervisors in chancery. In 2013, the MSSC held in Willow Bend Estates, LLC v. Humphreys Cty. Bd. of Supervisors, 166 So. 3d 494, 495 (Miss. 2013), that MCA  Sect. 27-35-50(4)(d) prohibits the inclusion of federal tax credits in the tax-appraisal value of properties that qualify as “affordable rental housing.”  In 2015, the circuit court granted summary judgment to SW and ordered a  refund of  SW’s overpayments for the years 2005 through 2012.   SW then filed a motion to amend and consolidate its chancery-court complaints to include claims for the tax years 2009 through 2013.  Then, because of a series of miscommunications, the specially appointed  chancellor, Buffington,  dismissed the case for failure to prosecute. SW appealed and the MSSC reverses.

After considering the facts of this case in the context of the standard for Rule 41(b)
dismissal, we find that the chancery court abused its discretion in dismissing SW’s complaint for failure to prosecute. This case does not present a clear record of delay or contumacious conduct by SW, the chancellor did not specifically consider any alternative sanctions, and no aggravating factors exist to support the chancellor’s decision. Trial courts possess the authority to impose lesser sanctions when the need arises, but the sanction of dismissal with prejudice should be reserved for egregious cases. This case does not fit into that category.

The Court amends MRAP 45(b)(5) governing pro hac vice admittance. Mainly it changes the fee from $200 to $300.  In another order, the Court orders that the  “Mississippi Bar shall retain one third of the pro hac vice fees received by it under Rule 46(b)(5) of the Mississippi Rules of Appellate Procedure and expend them exclusively to fund the operation of the Mississippi Access to Justice Commission and shall remit the other two thirds of the pro hac vice fees monthly to the Administrative Office of the Courts for deposit in the Civil Legal Assistance Fund established by Mississippi Code Section 9-21-43 (Rev. 2014).”











































































SW 98/99, LLC v. Pike County, Mississippi, Lexie Elmore, Tazwell Bowsky, Aubrey L. Matthews, Venton Adams, Carroll L. Fortenberry, Joe B. Young, Tax Assessor, Chuck E. Lambert and Gary Honea –



In Re: Mississippi Rules of Appellate Procedure

    ; Disposition: Before the en banc Court on the Court’s own motion, Mississippi Rule of Appellate Procedure 46(b)(5) is amended as set forth in Exhibit A. This amendment is effective immediately. The Clerk of this Court shall spread this Order upon the minutes of the Court and shall forward a true copy hereof to West Publishing Company for publication in the next edition of the Mississippi Rules of Court and in the Southern Reporter, Third Series, (Mississippi Edition). All Justices Agree to Amend. Order entered.


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