Decisions – MSSC – 5/23/2019

Hand down list

Franklin Collection Service, Inc. v. BancorpSouth Bankdefault judgment – In 2010, Franklin filed a lawsuit and named Bancorp South as a defendant in its first amended complaint.  Franklin claimed  BancorpSouth had charged Franklin excessive amounts of overdraft fees. On November 28, 2012, Franklin filed a motion for leave to file a second amended complaint.  It was granted on June 4, 2013. Franklin filed its second amended complaint the next day. Bancorp South failed to file an answer. On October 14, 2016, three years later Bancorp South moved to set aside the entry of default and allow it to answer the second amended complaint. Franklin moved the trial court to deem the allegations of its Second  Amended Complaint admitted and for the trial court to enter a default judgment.  The trial court denied Bancorp South’s motion to set aside the clerk’s entry of default but allowed Bancorp South to file an answer. The court  also denied Franklin’s motion to have the allegations in the second amended complaint admitted. Franklin filed two separate petitions for interlocutory appeal: one from the trial court’s denial of the motion to deem admitted the allegations of the second amended complaint and one from the trial court’s grant of BancorpSouth’s motion to file a responsive pleading to the second amended complaint.  The MSSC  finds that the trial court abused its discretion in failing to set aside the entry of default, did not err in denying Franklin’s motion to deem admitted the allegations of the second amended complaint under Rule 8(d), and did not abuse its discretion in allowing BancorpSouth to file an answer to Franklin’s second amended complaint.

Shannon Craig Parker v. State of Mississippicompetency –  On an evening in January of 2016, Eric and Edna Burkett were walking their dog in their Hattiesburg neighborhood when a truck stopped and the driver got out.  The couple asked if they could help him whereupon the driver, Parker, got a rifle out of the truck and shot Eric in the stomach. He also shot at Edna and missed.  Parker was apprehended shortly thereafter. His truck was in a ditch.  At trial a firearms examiner testified that the shell casing found at the scene came from the rifle found in Parker’s truck. On appeal Parker claims that the expert’s testimony was unreliable but he failed to object at trial and thus the issue is barred.  The court also finds that Parker’s claim that the firearm enhancement used in his case violated double jeopardy lacks merit.  Finally, the COA rejects Parker’s claim that he was entitled to a mental exam. Before trial Parker filed a pro se motion for a mental exam which the judge denied. The MSSC granted cert on the issue of whether Parker was entitled to a mental examination noting that the COA was divided on this issue. The MSSC affirms noting that Parker “offered only unsupported assertions of diminished capacity—a defense not recognized by Mississippi law.”

Rex Distributing Company, Inc. v. Anheuser-Busch, LLC, Mitchell Beverage, LLC, Mitchell Rex Distributing, LLC, Mitchell Distributing Company, Inc. and D.G. Yuengling and Son, Incorporated d/b/a D.G. Yuengling & Son, Inc. – Beer Industry Fair Dealing Act – Rex Distributing Company was a wholesaler of Anheuser-Busch’s beer.  When Rex sought to sell its business, Anheuser-Busch asserted a contractual right to “redirect” the sale to its preferred buyer, Mitchell Distributing Company.  Rex alleges that the redirect provision was void under Mississippi’s Beer Industry Fair Dealing Act (BIFDA) and that Anheuser Busch’s interference with the sale caused it damages actionable under the same statute.  The trial court dismissed Rex’s claims against Anheuser-Busch and Mitchell for failure to state a claim upon which relief can be granted. The MSSC granted an interlocutory appeal and finds that  Rex alleged a valid cause of action. It therefore reverses the dismissal of Rex’s BIFDA claim against Anheuser-Busch and the derivative claims against Mitchell and affirms the trial court’s judgment dismissing Rex’s other claims.

Andrew L. Ward, Jr., as Personal Representative of Larry and Mildred Seward, Deceased v. Illinois Central Railroad Company – release of claims – Larry Seward worked for Illinois Central Railroad Company from 1961 to 2004.  In 2005, Seward settled an asbestosis claim with Illinois Central.  He subsequently developed and passed away from anaplastic oligodendroglioma, a type of brain cancer.  In 2012, Andrew L. Ward sued Illinois Central on behalf of Seward alleging that Illinois Central breached its duty of care and failed to provide Seward with a safe place to work.  The complaint detailed specific issues with the work environment, including Seward’s exposure to chemicals and hazardous conditions. Illinois Central filed a motion for summary judgment based on the settlement and release that Seward signed in 2005.  The 2005 settlement was due to an asbestos-related  illness. The trial court granted the motion and Ward appealed. The MSSC affirms. a

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