Decisions – MSSC – 9/13/2018

Hand down list 

Sadie Tillman by Her Next Friend, Joe Tillman, Jr. v. Ditech Financial, LLC f/k/a Green Tree Servicing LLC and Josh Robin –  timeliness of appeal of order transferring case – In February 2016, Josh Robin sought to evict Tillman from property Robin bought in a foreclosure sale after Tillman failed to make payments to Ditech Financial.  Two days later, Tillman sued Robin and Ditech for wrongful foreclosure and various other causes of action.  In March, the justice court ordered Tillman to vacate. Tillman appealed to circuit court. Meanwhile, the circuit court transferred the  foreclosure action  to chancery court.  Three months later the circuit court consolidated the justice court appeal and the wrongful foreclosure even though it had transferred to the wrongful foreclosure.  Tillman had filed a motion for reconsideration of the transfer and when that was denied filed both an interlocutory appeal and a Rule 4 appeal.  On appeal the MSSC dismisses her appeals as untimely.  MRCP 60(c) provides that once a motion to reconsider is filed, “if [the] transferor court fails to rule on [a] motion for reconsideration within 30 days of the date of filing, the motion shall be deemed denied.”  Tillman’s motion to reconsider the transfer was filed on August 25, 2016. It was deemed denied on September 26, 2016.  Neither her interlocutory appeal filed on February 15, 2017, or her Rule 4 appeal filed March 1, 2017, was timely.

Adrian Montgomery v. State of Mississippidouble jeopardy after mistrial/depraved heart instruction – Montgomery was convicted of depraved heart murder after he attacked  Terome O’Neal and O’Neal died a few days later.  The two had been drinking beer and smoking marijuana in a park. An eyewitness saw O’Neal knock Montgomery’s joint to the ground. This prompted Montgomery to angrily attack O’Neal. His first trial ended in a mistrial when the state learned that the pathologist had had a sudden family emergency and could not testify.  Montgomery argues that the retrial violated his right to be free from double jeopardy. The MSSC finds that the mistrial was out of necessity and retrying Montgomery was not error.   Montgomery also argues that one of the depraved heart-murder instructions was fatally defective because it omitted the phrase “without authority of law.”  “But other instructions made clear that to find Montgomery guilty of murdering O’Neal, the killing could not be ‘justifiable’ self-defense or an ‘excusable’ accident. Thus, when read as a whole, the depraved-heart-murder instructions were clear that the killing had to be unlawful.”  The MSSC affirms.

Julia Cavalier, Individually and as a Heir at Law of Lautain M. Scruggs, Deceased, Jannette Scruggs McDonald, Individually and as a Heir at Law of Lautain M. Scruggs, Deceased, and the Estate of Wilma Lautain Scruggs, Deceased v. Memorial Hospital at Gulfportmedical malpractice/hospital fall – Eighty-nine year old Wilma Scruggs underwent removal of part of her colon in July of 2013.  The next night she was found having fallen to the floor. Scruggs suffered a subdural hematoma that required almost immediate surgery.  She never fully recovered and died a few years later. Her family filed a tort claims act suit and after a trial, the judge found for the hospital. The MSSC affirms.

Brittany Spann, LPN, Mary McGowan, LPN, Patricia Rhodes, LPN, and Barbara Scott, LPN v. Patsy Wood, Individually, as Administratrix of The Estate of Patricia Bridgeman Peoples, Deceased, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples; Sandra Kay Madison, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples and Samuel Peoples, Natural Son and Wrongful Death Beneficiary of Patricia Bridgeman Peoples  – medical malpractice/sufficiency of presuit notice  – Peoples was residing at  Lakeland Nursing and Rehabilitation Center, LLC, when, on September 12, 2011, she fell and died. Three months later the family’s attorney sent a notice to Lakeland Nursing stating that “Lakeland Nursing and Rehab Center and its employees were negligent and that their negligence was a contributing proximate cause of . . . Peoples’s fall, her injuries and her subsequent death.”  The family then sued Lakeland and the nurses. The nurses moved to dismiss for failure to given them presuit notice. The trial court denied the motion and the nurses filed for an interlocutory appeal which was granted. The MSSC reverses. “The Legislature’s use of the word “defendant,” a singular noun, appears to require individual presuit notice to each of several defendants.”

Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, Mississippi Department of Education and State Treasurer Lynn Fitch –  governor’s power to reduce agency budgets – During Fiscal Year 2017, Governor Phil Bryant directed the  State Fiscal Officer to reduce the budgets of various state agencies. In response, State Representative Bryant W. Clark and State Senator John Horhn brought a declaratory-judgment action against the Governor in Hinds County Chancery Court.  They sought preliminary and permanent injunctive relief, a writ of mandamus ordering the Governor to reverse the reductions, and a declaration that MCA  Section 27-104-13 was facially unconstitutional. The chancellor deined relief. On appeal the MSSC affirms.

Under our Constitution, the executive has the core power to control the budget of state agencies. Here, the Legislators’ arguments that Section 27-104-13 violatesthe separation-of powers doctrine miss the mark, as the budget reductions were an exercise of the executive’s core constitutional power. Therefore, we affirm the chancellor’s final order because Representative Clark and Senator Horhn have failed to overcome the strong presumption that Section 27-104-13 is constitutional.

Belmont Holding, LLC v. Davis Monuments, LLC and Jason Davis, Individuallynecessity of cost bond to appeal from county to circuit court  – Belmont Holding filed a complaint in replevin in the County Court of Jackson County against Davis Monuments and Jason Davis.  After a trial the court denied the replevin.  Belmont filed a notice of appeal within thirty days of the final judgment but did not  pay the cost bond within thirty days of the final judgment as required by MCA Sect.  11-51-79. The Circuit Court of Jackson County, sitting as an appellate court, dismissed Belmont’s appeal for lack of appellate jurisdiction because Belmont had failed to pay the cost bond within thirty days of the county court’s final judgment.  Belmont appealed. The MSSC affirms.

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