Decisions – COA – 7/30/2019

Hand down list

Kenneth Bailey and Elizabeth Lee Shutze, as Wrongful Death Beneficiaries of Bertha Elizabeth Bailey, Deceased v. City of Pearl, Mississippi –  tort claims act – In September of 2017, Kenneth  and  Bertha were leaving their  grandson’s baseball game at the Pearl youthpark when a swinging gate  “speared” the cab of their vehicle. Both were injured but Bertha severely so – her skull was fractured.  She died 11 days later.  They sued the City of Pearl. The trial court granted summary judgment finding that the operation of a public park falls under discretionary function immunity. The COA affirms the ruling regarding Bailey’s allegations concerning the design of the city’s ballpark, including lighting, gates, and safe ingress and egress to the park, as well as the proper hiring, training, and supervision of employees and the adoption of safety protocols for use of the park by the public.  These are discretionary functions.  “But because Bailey’s allegations of negligently leaving the gate unsecured,  failing to maintain the gate,  and failing to inspect fixtures upon the property that could create a dangerous condition are not exempt under the public-policy function test of discretionary immunity, we reverse the circuit court’s dismissal of those claims and remand for further proceedings.”

Malcolm Crump v. State of Mississippi PCR – Crump was indicted on three separate charges of “Sale of a Schedule II Controlled Substance-Methamphetamine.”  Each indictment included two enhancements—one as a second or subsequent offender under MCA Sect. 41-29-147 for a prior conviction of  Possession of Marijuana in a Vehicle and another as a habitual offender under MCA Sect. 99-19-81. After entering a plea agreement with the prosecution, Crump pled guilty to all three charges. Crump’s understanding of his plea agreement with the prosecution, as documented in his plea petition, would sentence him to the following: 20 years in the custody of MDOC for one cause, 8 years for another, and 8 years for the third.    In exchange for Crump’s guilty plea, the prosecution would dismiss the habitual offender and subsequent offender enhancements. Crump would also be eligible for parole.  The circuit court accepted Crump’s guilty plea and allowed him to remain free on bail until his sentencing hearing on February 1, 2016.  Crump accepted his guilty plea but then fled from Mississippi to Alaska and did not appear for his sentencing hearing.  Crump’s bail was revoked, and after a warrant was issued for his arrest, Crump was extradited from Alaska.  He finally appeared before the circuit court on June 7, 2016, for his sentencing hearing, and the circuit court sentenced Crump with the second or subsequent offender and habitual offender enhancements.  Crump was sentenced to 40 years, 16 years, and 16 years. Crump’s new sentence no longer made him eligible for parole.  Following his sentencing, Crump filed a PCR petition with the circuit court which denied it. On appeal he argues that (1) the prosecution breached its plea agreement to dismiss Crump’s habitual offender and subsequent offender enhancements, and (2) he was illegally sentenced as a habitual offender because the State failed to meet its burden beyond a reasonable doubt. The COA affirms.

Veronica McGee v. Jackson State Universitysuing college for breach of contract – Veronica McGee obtained her master’s degree from Jackson State University in May 2005.  Eleven years later McGee sued JSU after learning that her master’s degree failed to satisfy the initial eligibility requirements for a teaching license.  She asserted claims of breach of express and implied contract, breach of the covenant of good faith and fair dealing, promissory estoppel, and intentional infliction of emotional distress. The trial court granted  JSU’s motion for  summary judgment.  The COA affirms based on the statute of limitations.

Dempsey Sullivan, Billie Joyce Sullivan, and Terrell Stubbs, Individually v. Estate of Samuel Maddoxeasement – The Sullivans filed a complaint in 2010 seeking an injunction to prohibit their neighbors the Maddoxes from entering their property in Simpson County.  The Maddoxes filed a counterclaim asserting that they possessed an easement across the Sullivans’ property.  During the course of litigation, the chancellor entered an order dismissing the Sullivans’ complaint for an injunction with prejudice and issuing sanctions against their attorney, Terrell Stubbs.  The chancellor appointed a special The special master’s report found that  the Maddoxes did not possess a valid easement.  The chancellor ultimately entered a final judgment that  dismissed the Maddoxes’ counterclaim with prejudice after finding that no easement existed, affirmed and ratified all prior orders and judgments filed in the matter, and assessed the costs of the special master to the Maddoxes.  The Sullivans appealed arguing that  (1) they did not receive proper notice when the chancellor dismissed their complaint with prejudice; (2) the chancellor erred in dismissing their complaint on the merits; (3) the chancellor erred in awarding sanctions; (4) the Estate of Samuel Maddox was improperly substituted as a party for Samuel Maddox; and (5) the chancellor erred by ratifying and affirming all prior orders of the chancery court.  The Maddoxes filed a cross-appeal, arguing that the chancellor erred in holding that the Maddoxes did not have an easement of record or an easement by implication across the Sullivans’ property.  The COA affirms the chancellor’s dismissal of the Sullivans’ complaint with prejudice; the chancellor’s award of sanctions; the chancellor’s judgment ratifying and affirming all prior orders of the chancery court; the chancellor’s order substituting the Estate of Samuel Maddox as a party; and the chancellor’s judgment finding that the Maddoxes did not have an easement of record or an easement by implication across the Sullivans’ property.  “However, we reverse the chancellor’s award of attorney’s fees and expenses to the Maddoxes, which the chancellor issued as sanctions against Stubbs, and we remand this issue to the chancellor with instructions to: (1) dismiss the present action without prejudice as to Steve Maddox pursuant to Mississippi Rule of Civil Procedure Rule 25(a)(1) and (2) then reassess the distribution of the award of attorney’s fees to the remaining party.”

J.P. Milam v. Ann Kelly and Jim Kellyflooding–  J.P. Milam bought a house on Sheffield in Jackson in 2008.  In 2009, flash floods would cause water to enter his home (welcome to Jackson). In 2012, Milam spoke with his former neighbor about the flooding. Milam was told that the Kellys, who lived in the house directly behind Milam, had replaced a chain link fence in their backyard with a wooden fence in  2008 or 2009.  In 2012, Milam filed a complaint against the City of Jackson alleging that the City caused storm-drainage water to flood his home.  Milam later amended his complaint to add the Kellys as defendants.  The Kellys moved for summary based on the statute of limitation.  The Hinds County Chancery Court entered an order granting summary judgment after finding that Milam’s claim against the Kellys was barred by the statute of limitations and that Milam failed to provide evidence in support of his claims.  On appeal, the COA affirms.

Dennis Jobe v. State of Mississippi, Mississippi Department of Corrections and Earnest Lee prison medical treatment –  Jobe is a veteran and claims he contracted Hepatitis C at the VA.  He is currently serving time in MDOC for aggravated assault and possession of marijuana with intent to sell.  In 2014 he learned there was a new treatment for Hep C – Harvoni.  Jobe requested that he receive Harvoni but was told that MDOC had not yet approved it.  He ended up making three requests and appealed the denial of the last one to the Circuit Court. The court found that Jobe failed to exhaust administrative remedies for his complaints concerning medical treatment for Jobe’s back problem, denial of exercise time, etc.  He exhausted remedies concerning Harvoni but because MDOC had taken steps to have him evaluated for Harvoni treatment, the court felt a request for restraining order was moot.  On appeal the COA affirms the court’s holding that Jobe did not exhaust his administrative remedies with regard to his request for treatment of his back pain, etc.  “Nor did the court err in finding that MDOC had not acted arbitrarily and dismissing Jobe’s complaint of delayed Harvoni treatment.  We remand the matter to the circuit court for it to receive the update of the GI specialist’s recommendation and review MDOC’s final decision regarding Jobe’s requested Hepatitis C treatment with Harvoni.” 1.

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