On last Thursday, there was one opinion from the Mississippi Supreme Court. Anderson described it accurately in comments to an open thread, leading to some discussion (if you read it, ignore A.R.O.D.’s usual racist bloviating)– the plaintiff’s medical malpractice expert did not come through in his deposition (describing what he would have done as an anesthesiologist during surgery, but pretty much admitting that what he would have done wasn’t a standard of care). The majority (opinion by Randolph) ruled that this meant the plaintiff had no expert and he therefore lost. Justice Kitchens dissented, arguing that the witness had stated a standard of care, of constant vigilance. Graves joined that dissent. On this one, the comments pretty strongly believed that the majority had it right this time, as do I.
There was a denial of cert (criminal) and denial of rehearing (civil) in both of which Kitchens, alone, would have granted. I was curious about these but not curious enough to pull out the original decisions.
Also, the Mississippi Court of Appeals decision list for the day is up. There are several divided cases, although we don’t get opinions in all of them. There is one unanimous civil case and four unanimous criminal cases. Beyond that, there are;
- A civil case involving the Public Employees’ Retirement System has a majority opinion by Carlton joined by King, Griffis, Ishee, Roberts, and Maxwell, with a dissent by Iriving joined by Lee, Myers, and Barnes.
- What looks like a divorce with an opinion by Ishee joined by Lee, Barnes, Roberts, Carlton, and Maxwell, with a dissent by Myers joined by King and in party by irving and Griffis, and a dissent by Myers joined by King, and in party by Irving and Griffis.
- What looks like another divorce with a majority opinion by Carlotn, joined by Lee, Myers, Griffis, and Barnes, with Roberts concurring in part and dissenting with an opinion joined by Ishee and in party by Iving, and with King dissenting without an opinion.
There’s also In re Dissolution of Demoville Partnership, a family feud (estates division) involving an appeal from a chancellor’s finding that a will had been obtained from undue influence, punitive damages were appropriate, and awarding attorneys fees. It’s an Ishee opinion, with Carlton concurring in the result only, and Irving without a separate written opinion. What Carlton and Irving don’t like in the opinion, they don’t say. The opinion noted that Dixie (who won the punitive damages award
…does not contest that she failed to show actual fraud or gross negligence. However, she responds that the chancellor properly found Margaret’s breach of her fiduciary duty to be so “shocking and indefensible” as to warrant punitive damages.
The opinion goes on to note that Margaret’s breach (which involved misappropriating her mother’s assets) was in reckless disregard for Dixie’s rights, which supported the award of punitive damages. It’s a long opinion, pretty fact-bound.
Ya’ll know the drill– comment if you see anything interesting.
Here’s the May 5th thread. Here’s the May 12th thread. Here’s the May 19th thread.
Oh! If you only knew all of the players in the demoville saga, including chancellors, lawyers, parties, location, you *might* have enjoyed the visuals it created in my mind.
PERS v. Lee, concerns out of time appeals. The rule says the trial court [i]may[/i] grant one, if it finds that the party didn’t get the judgment from the clerk and the other side won’t be prejudiced. So the circuit court says no, without any specific findings, and the court remands, finding that the appellants proved they didn’t get the judgment, and that there’s no evidence of prejudice in the record.
There’s a logical disconnect that the dissent points out (why doesn’t “may” mean [i]may[/i]?), which the majority is aware of and tries to address (see paragraph 9). Its explanation makes no sense to me; they just try to turn it around and say that the dissent doesn’t understand conjunctions (complete with citations to law review articles explaining the difference between “and” and “or,” as if that was the issue.) That said I think the COA got it right, at least to the extent that they were following the [i]Pre-Paid Legal Services[/i] SC case the majority cites. But that one doesn’t seem to jibe with the text of the rule, either, and the supreme court doesn’t even try to explain it.
Yeah, Carlton’s grammatical analysis is simply stupid, for want of a euphemism. The rule plain as day says “may,” which gives the trial court discretion, as opposed to “shall,” which does not. The comment to the rule makes that blindingly obvious, which is probably why Carlton closes her eyes and ignores it in her opinion for the court. The court gets all hung up on “prejudice,” while failing to grasp that even on a showing of no notice and lack of prejudice, the trial court still has discretion.
That said, I think the COA may’ve hit the right result for the wrong reason. Reading the opinions, it doesn’t appear that the trial court gave any reason for not granting the out-of-time appeal. “Discretion” is not a synonym for “whatever the hell you want,” and I think that it’s fair to expect the trial court to explain its reasoning. “May” does not allow the trial court to rule on whim.
It might therefore have been preferable to reverse and remand for the trial court to enter an opinion explaining its ruling (which they should do anyway — I have an abuse-of-discretion appeal pending where the trial court simply says “the motion is denied,” which is all too common. I think the State is paying them to be judges, not to flip coins). Actually, the trial court could probably still do that, given the scope of the reversal (para. 11).
Expert testimony of all types must have some sort of objective basis. What the plaintiff’s expert espoused was basically a standard where if, in hindsight, another expert can see how the injury could have been avoided, then the doctor violated the standard of care. Clearly, the majority had it right.
I think we all agree that what an expert personally would or would not do is insufficient to establish the standard of care. On the otherhand, I am bothered by some loose language that could be read as suggesting that in order to establish standard of care it has to be “objective”. What does that mean? Does it have to be written somewhere? The “standard of care” is just another way of saying what a reasonable, prudent professional would do under the same or similar circumstances. Reasonable, prudent attorneys don’t miss statutes of limitation. I have never seen it written in a book, but we all know an attorney in these circumstances commits malpractice. You can think of 100″s of other examples.
Anderson: The abuse of discretion standard is usually simple, but it sure can be complicated when there’s no framework for the decision. The reviewing court is supposed to look for an error law or a mistake of fact, but here the rule just says “may, if x.” That is, there’s nothing that says what the court should consider if it has “x” but doesn’t want to grant the motion anyway.
Then there’s that supreme court case (Anderson v. Pre-Paid Legal Services) which seems to hold that the answer is nothing. They found an abuse of discretion from an erroneous assumption, but then they basically rendered, instead of remanding for a decision within a proper framework (if there is one and they rendered on the facts, they didn’t say so). So if it means “shall,” why the heck did they write it as “may” in the first place?
So if it means “shall,” why the heck did they write it as “may” in the first place?
It is never reassuring to take an appeal on any complicated legal issue up to either court, when you see them stumbling on “shall” vs. “may” and suchlike.