Decisions – MSSC – 3/7/2018

Hand down list

Douglas Neely v. State of Mississippi –  Lindsey brief –  Douglas Neely was convicted of resisting arrest and felony fleeing a law enforcement officer. His appointed counsel on appeal filed a brief in accordance with Lindsey v. State, 939 So. 2d 743 (Miss. 2005), certifying that there were no arguable issues. Neely was given an opportunity to file his own brief but did not do so. The MSSC affirms.

George Waltman and Liberty Mutual Insurance Company v. Engineering Plus, Inc. –   project engineer’s liability for safety of construction worker – Lauderdale County contracted with the roofing company  Norman Enterprises, Inc., a
company, to repair the roof of the Ulmer Building in Meridian in 2013.  One of Norman’s employees,  George Waltman,  fell through the roof while performing work.
Waltman sued Engineering Plus, Inc., the project engineer, claiming it should have warned him of the dangerous condition of the roof. Engineering Plus moved for summary judgment, arguing it had no duty to warn Waltman. The Lauderdale County Circuit Court agreed and granted summary judgment to Engineering Plus. The MSSC affirms. “For an engineer to have an affirmative duty to warn of dangerous conditions, the engineer must have taken on, either by contract or conduct, the responsibility of maintaining the safety of the construction project. McKean v. Yates Eng’g Corp., 200 So. 3d 431, 435 (Miss. 2016).”

Mary Edwards v. Coca Cola Bottling Company United, Inc. and Willie Lee, Jr. –   premises liability/sanctions – Mary Edwards  sued Coca-Cola Bottling Company and
Willie Lee, Jr., claiming she sustained back injuries when she was struck by a cart driven by Lee while she was shopping at Wal Mart.  The defendants moved to dismiss on the grounds that she misrepresented her injuries during discovery.  She claimed that her back was injured in the accident and that she had never had back problems before. Her medical records, though, showed she had been claiming back problems since 2005.  The trial court dismissed her complaint. The MSSC affirms.

Mississippi Farm Bureau Casualty Insurance Company v. Dorothy Smithearth movement exclusion – Smith filed suit against her home builder, Larry Brown and her insurer  Farm Bureau after learning that her home’s foundation was defective.  Farm Bureau moved for summary judgment on the grounds that her police contained an earth movement exclusion.  The trial court granted summary judgment and the MSSC affirms.

In the Matter of the Estate of Brenda Louise Bargas Flowers: Claire C. Flowers and Brenda Jane Flowers Paixao v. The Estate of Brenda Louise Bargas Flowers, through its Executor, Knox Lemee Flowers, Cecil C. Lang and Linda S. Lang accounting/estate – Richard and Brenda Flowers had three children: Knox Lemee’, Claire and Jane. In 2004, Claire gave birth to a son, D.A..  Richard and Brenda adopted D.A. in 2005. Both Richard and Brenda passed away on 2006. Brenda’s will appointed Knox as her executor. The will set up a trust for D.A. and his descendants. In 2015 Claire filed for an accounting and sued the various attorneys who had worked in the estate. The chancellor denied relief. Claire appealed. On appeal the COA affirms except to the denial of an accounting.  On cert., the MSSC finds that the COA erred when it held that Claire and Jane were entitled to an accounting. “We hold today that the chancellor, in his discretion, correctly held that under Brenda’s will, Claire and Jane have so remote an interest with such a mere expectancy of a future inheritance that they are not entitled to an accounting until that interest vests.”

Health Management Associates, Inc., Clarksdale HMA Physician Management, LLC, Clarksdale HMA, LLC individually and d/b/a Northwest Mississippi Medical Center, Mark Caton, Regina Robinson, Matthew Tormey and Teena Rowe v. Roger Weiner, M.D. –  malicious prosecution/favorable termination  – Dr. Weiner  was prosecuted in federal court for violating the Mann Ac t. The district court threw the charges out finding no federal nexus to interstate commerce.  Thereafter, Dr. Winer filed suit against Health Management Assoc., Inc. and Teena Rowe for malicious prosecution.   The defendants moved for partial summary judgment arguing that the dismissal for lack of jurisdiction was not a favorable termination for the purposes of a malicious prosecution suit.  The trial court denied  relief and the defendants filed an interlocutory appeal.   The MSSC reverses and remands finding that the termination of the suit for lack of federal jurisdiction was not a favorable termination. Dr. Weiner argues that the government’s failure to appeal the dismissal amounted to abandonment of the case and favorable termination.  The MSSC disagrees. “In sum, when a dismissal does address the merits, a failure of the government to appeal does not amount to an abandonment.”

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