Decisions – MSSC -8/3/2018

In the Interest of E.K., a Minor, Timothy King and Elizabeth King v. Mississippi Department of Child Protection Servicesneglected child –  Elizabeth and Timothy King had a daughter, E.K., in December of 2001.  E.K. suffered from multiple disabilities including autism and  functioned on the level of a two-year-old.  Elizabeth and Timothy separated. Two weeks later, in Dec. 2015, law enforcement showed up at Elizabeth’s house after she made multiple 911 calls claiming Timothy was trying to get into her house. Concerned that she was high, officers called DHS which came out and found no evidence of neglect or abuse.   DHS recommended that the youth court informally monitor the Kings.  Elizabeth agreed to be drug tested and several tests came back negative-dilute but after four months refused any more tests. DHS then sought to have E.K. adjudicated a neglected child. Elizabeth appeared and DHS testified that she had tested positive for marijuana.  Custody was awarded to DHS, a bunch of other hearings took place, and custody was eventually restored to Elizabeth and Timothy but they appeal  the adjudication of E.K. as a neglected child. The MSSC vacates and renders.

First, E.K. was adjudicated neglected even though her mother was not properly before the youth court and her father received no notice of the adjudication hearing. Second, after review, we find that the neglect petition was legally insufficient to provide notice to E.K. or her parents of the neglect charges. Third, the evidence offered to support a finding of neglect at the adjudication hearing was legally insufficient.

Reggie Elliott and Brenda Ejimofor, as Co-Administrator and Co-Administratrix of the Estate of Joe Orlando Elliott, Deceased, Orlando Elliott, and Frankie Mitchell, as Co-Guardians of Orlandrea Elliott, a Minor, Michael Elliott, and Alma Elliott v. Amerigas Propane, L.P. –  judicial estoppel –  In April 2008, the Elliotts’ house exploded due to natural gas.  They sued  HSUD who owned and maintained the municipal gas distribution pipelines and supplied natural gas to customers;  El Paso Corporation, a natural gas supplier, Tennessee Gas & Pipeline Company, the subsidiary of El Paso that directly supplied natural gas to HSUD;  Tri-State Meter and Regulator Service, Inc.,
which supplied HSUD with warning odorant for its natural gas, and Chevron Phillips
Chemical Company, L.P., Tri-State’s warning-odorant supplier.  These companies defended the case claiming that the explosion was due to propane gas.   The Elliot’s house was not supplied with natural gas via the pipeline but rather a propane gas tank in their yard.  The plaintiffs denied this but added the propane gas supplier, Amerigas anyway.   When the case was removed to federal court, the federal court judge remanded it based on the Elliotts’ assertion that the explosion was not caused by the propane tank.  The defendants moved for summary judgment which the trial court granted as to all but one defendant. The remaining defendant and the Elliotts appealed. The Miss.S.Ct. ended up finding that all of the defendants should have been granted summary judgment.  Elliott v. El Paso Corp. et al.  Amerigas then moved for summary judgment based on the Elliotts’ judicial admissions that the explosion was not caused by propane gas.  The trial court granted the motion and the Elliotts appealed again.  The Miss.S.Ct. affirms concluding that even without the judicial admissions, the Elliotts lacked any proof that the explosion was AmeriGas’ fault.  

Tarinika Smith, Individually and on Behalf of Kayden Johnson, et al.,   v. Church Mutual Insurance Company and Adlai Johnson –   – choice of law – In April of 2013,  Tarinika Smith and twelve minor children were involved in an automobile accident with a vehicle driven by Adlai Johnson. The accident happened in Marshall County, MS.  The van driven by Smith was  owned by Mount Vernon Missionary Baptist Church located in Rossville, Tennessee, and all of the individual parties are Tennessee residents. The church’s insurer was Church Mutual, a Wisconsin company.  Smith and the children filed suit against Johnson and Church Mutual in Marshall County. Johnson proved hard to serve with two mailings coming back as “unclaimed.”  Johnson was finally served via a process server on March 14, 2016. Johnson moved to dismiss for failure to serve him within 120 days.  The trial court granted the motion. Church Mutual then moved to have the court declare that Tennessee law applied.  The trial court did so and then granted Church Mutual’s motion for summary judgment holding that Tennessee does not allow direct actions against insurers.  The Plaintiffs petitioned for interlocutory appeal which the Miss. S. Ct. granted. The Court finds that the trial court was correct to dismiss Johnson and was also correct in holding that Tennessee law should be used to determine whether the contract provided UM coverage to the plaintiffs. However, the trial court erred in applying Tennessee substantive law and then granting summary judgment for Church Mutual. That order is reversed.

Abdur Rahim Ambrose  v. State of Mississippi death penalty – Ambrose and two others were indicted for the murder of Robert Trosclair who was found on the side of a road outside of Delisle in Harrison County.  He was brain dead having suffered trauma to the head. Apparently Trosclair was beaten after being suspected of having broken into Ambrose’s car and stolen painkillers and other items.  One of the state’s witnesses was Demetrius Lee.  While Lee was a participant in the events, he agreed to testify for the state in exchange for not being prosecuted.  What the jury wasn’t told was that Lee had a prior felony of burglary which the state had agreed to non adjudicate.  The state could have revoked the agreement to non adjudicate the burglary based on Lee’s participation in the Trosclair killing but did not.  Lee was also facing being charged in an unrelated armed robbery.  The trial court refused to allow the defense to elicit any of the this information because they did not qualify as convictions under MRE 404. Before the jury began deliberations on the sentence, a juror disclosed that he could not participate because he knew members of the defendant’s family.  He had revealed these during voir dire but stated that he could be fair. The trial court excused the juror over the defendant’s  objection and request for a mistrial. The MSSC affirms.

Connie Hawkins, Individually and on Behalf of the Wrongful Death Beneficiaries of George Leith Hawkins, III, Deceased v. Heck Yea Quarter Horses, LLC, Wallace Heck d/b/a Heck Yea Quarter Horses, LLC and Bruce Horn –  wrongful death – In June  of 2013, sixty-one-year-old George Hawkins was hired as a temporary employee of Heck Yea to work on a fence-washing project. On the very first day around lunch he  began experiencing a heat stroke. He was asked if he wanted an ambulance twice; he said no.  He was taken to the shade and given a cold drink.   George left the farm between 1:00 and 3:00 p.m. and was observed driving erratically.   His wife found him at home at 4:30 in distress.   George was taken to a hospital and died several days later.  His wife filed a  wrongful-death lawsuit against Heck Yea.  The trial court granted summary judgment finding that Heck Yea did not breach any duty under the  good Samaritan statute to George. The COA affirms finding that whether under the Good Samaritan statute or general negligence principles, Heck Yea twice offered to call an ambulance.  Furthermore, it took the wife two hours to call an  ambulance.  The COA affirmed  finding that whether under the Good Samaritan statute or general negligence principles, Heck Yea twice offered to call an ambulance.  Furthermore, it took the wife two hours to call an  ambulance. “We find that Heck Yea rendered reasonable first aid to George and that its duty ended after George left its premises and Hawkins assumed his care. ” The Miss.S.Ct. granted cert and also affirms holding that the COA’s analysis was correct.

The Court grants cert in two cases:

Troylanden Cortez Harris  v. State of Mississippi  (the link is to the COA opinion) – failure of instruction to properly define attempt –  Troylanden Harris was found guilty of attempted armed carjacking.  He was tried in absentia. On appeal he raises several issues including the trial court’s failure to give the jury an instruction properly defining attempt since the instruction did not mention the failure or prevention of completion of the offense.  While Harris did not raise this issue at trial, on appeal the Court finds the omission to be plain error and reverses. The State files a cert. petition which is granted.

Brett Jones  v. State of Mississippi  – (the link is to the COA opinion) – resentencing under Miller – Brett Jones  was  convicted for the murder of his grandfather and sentenced to life imprisonment. Following the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), the circuit court held a hearing to determine whether Jones, who was fifteen years old when he killed his grandfather, was entitled to parole eligibility under Miller.  The trial court found that he was not. The COA affirmed. Following that hearing, the circuit court found that Jones was not entitled to
relief under Miller. Jones filed a petition for cert. which the Miss.S. Ct. grants.

 

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