Decisions – MSSC – 6/6/2019

Hand down list

In The Matter of The Last Will and Testament of Mary Saunders Waller: Brenda Gordon and Craig Gordon v. Sherry Wall, Administratrix C.T.A. of the Estate of Mary Saunders–  inter vivos gift – Ninety-year-old  Mary Saunders Waller gave her  daughter and son-in-law, Brenda and Craig Gordon, 450 acres.  A conservator was appointed for Waller shortly before her  death and she filed a petition in the probate action to set aside the deed to the Gordons.  The Gordons admitted to a confidential relationship with Waller, and the chancellor found they were unable to rebut the attending presumption of undue influence.  The chancellor set aside the gift.  On appeal, the Gordons contend the chancery court erred by excluding the testimony of Waller’s attorney and physicians because of ex parte contact by the Gordons’ attorney. The MSSC affirms finding that the Gordons failed to make an offer of proof so there is no way to know what the testimony of the physicians would have been. 

Cindy Henderson and John Henderson v. Copper Ridge Homes, LLC, Richard Coney, Individually and First Bank, a Mississippi Banking Corporationwrongful foreclosure –  (the Court denies rehearing but replaces the previous opinion with this one ) – The Hendersons sued Copper Ridge Homes and First Bank over the construction of their new home in Magnolia. They contended the price of the home was $320,000.  Copper Ridge insisted the Hendersons had a cost-plus contract.  First Bank had paid Copper Ridge $316,000 leaving only $4,000 left when much of the house had yet to be completed.  First Bank then counterclaimed requesting a judicial foreclosure after the Hendersons missed a payment.   The Hendersons moved to   add a wrongful foreclosure claim but because the house had not been foreclosed upon, the judge allowed the Henderson to add a claim for fraud and breach of the duty of good faith and fair dealing.  The judge then granted First Bank’s foreclosure claim and refused to allow another attempt to amend to add a claim for wrongful foreclosure.  On appeal, the MSSC finds that the trial court was not incorrect to grant the foreclosure since the Henderson’s defense was only that First Bank’s conduct was an excuse for their breach.  However, the MSSC finds that the trial court erred in finding that the Hendersons lost their claims against Copper Ridge and that those claims traveled with the land so as to vest in First Bank.   The trial court further erred in refusing to allow the Hendersons to amend to add wrongful foreclosure.

Nissan North America, Inc. v. Ann C. Tillman and Great River Nissan, LLC d/b/a Great River Nissantermination of dealership agreement – Ann C. Tillman owned Great River Nissan in Natchez.  It’s dealership agreement required 90 days notice if Nissan wanted to terminate its dealership agreement.  On November 23, 2016, Nissan North America, Inc., notified Great River that it would terminate its dealership agreement with Great River based on unsatisfactory sales, among other reasons, effective 90 days from the notice.   On February 17, 2017, Great River challenged the notice of termination by filing a verified complaint with the Mississippi Motor Vehicle Commission under Section 63-17-73(1)(d)(iii).  Nissan filed a motion to dismiss the complaint as untimely, claiming that the deadline to file the complaint with the Commission was within sixty days after Great River had received the notice of termination, not within sixty days of the effective date of the termination.    The Commission found that Great River had received a notice of termination letter on November 23, 2016, and that Great River filed its complaint on February 17, 2017.  The Commission found that Great River had “filed its [v]erified [c]omplaint outside the statutory window of sixty (60) days to file a verified complaint with the Commission” and dismissed Great River’s complaint. Great River appealed to the chancery court and reversed the Commission’s decision, finding that the Commission had incorrectly interpreted the statute.   The chancery court found that “the language ‘within the sixty-day notice period’ means, refers and was intended by the Legislature to refer to the sixty-day period before the effective date of the threatened termination.” The MSSC affirms.

Anthony Carr v. State of Mississippi –  incompetence to be executed – Anthony Carr was convicted of four counts of capital murder and sentenced to death for each.  In 2004, the MSSC granted Carr leave to proceed in the circuit court on his PCR claim that he is intellectually disabled and, thus, ineligible for the death penalty under Atkins v. Virginia. The trial court found that Carr was not incompetent to be executed.  On appeal, the MSSC affirms.

Gulf Coast Hospice LLC, a Mississippi Limited Liability Company, Jyoti Desai, Krupa Desai and Iqbal Savani v. LHC Group Inc., a Delaware Corporation, Mississippi Health Care Group, LLC, a Mississippi Limited Liability Company and LHCG XXVI, LLC, a Mississippi Limited Liability Companybreach of contract – Louisiana Hospice Corporation sought to buy e Gulf Coast Hospice LLC and the parties executed a letter of intent outlining the basic terms of the proposed acquisition.  Ultimately, the parties failed to consummate the transaction.  Gulf Coast Hospice LLC sued LHC Group Inc.  asserting several theories of liability stemming from the failed acquisition.  The trial court granted LHC’s motion for summary judgment and dismissed Gulf Coast Hospice’s claims.  Gulf Coast Hospice appeals and the MSSC affirms.

The Mississippi Bar v. June A. (Placer) Oswaldbar discipline – Oswald was permanently disbarred in Louisiana.   The Mississippi Bar sought  reciprocal discipline.  In January  2019, Oswald executed a notice of irrevocable resignation and filed it with the Court. The Bar filed a motion to accept  Oswald’s irrevocable resignation. The MSSC grants the motion.

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