Mississippi Supreme Court decisions, 12/3 and 12/10

In my project of writing about the Mississippi Supreme Court decisions list, I missed the 3rd and last Thursday.  This post will cover those, and there’s a note at the end of the post about what I’ve hit and missed since the first of the year; I’ve described most of the court’s decisions.  If you want to read the whole series, just click on the topic Mississippi Supreme Court.  There’s also a general description of the project in the link on the left-hand site, although I’ve not updated the links to each weeks decisions list summary since late August.  I’ll do that by the end of the year, and, circumstances permitting, try to do a summary of the year sometime after the first.

Here’s the last two weeks.  The only  opinion on the 12/10 decision list involved the court deciding to follow suit on a three month suspension handed down by the Tennessee bar against a lawyer licensed in both states.

December 3rd had a few more cases:

• A Chandler opinion in the third appeal of a long-running dispute between Greene County and the company managing its community hospital.  My eyes glazed over.
• A DUI double jeopardy case with a Lamar opinion and a Kitchens dissent joined by Graves and Chandler.  The dissent has far and away the better part of this one.  The defendant had been in a car crash that resulted in injuries (what injuries aren’t explained).  When he appeared before the municipal court on charges of DUI and lacking proof of insurance, he entered a guilty plea to the later and the court found on the DUI charge: “This cause came on to be heard on the charge of DUI-1st and no proof of insurance. The City was unable to proceed on the prosecution of the DUI-1st charge due to the factual circumstances of the case. The Defendant was in an accident and was air-lifted to the Med in Memphis, TN. The officers on the scene could not conduct any field sobriety tests due to the Defendant’s injury and trapped in vehicle. Defendant was immediately air-lifted – unconscious. Blood was taken at Med. Defendant asserts and objects to admissibility under Section 63-11-7 MCA. City cannot prove anything by extrinsic facts.”  The DUI charge was therefore dismissed.  Later, he was indicted for driving under the influence resulting in injury and sentenced to 15 years in Parchman.  The question was whether, in the city court dismissal, the case was adjudicated on the merits.  If so, double jeopardy barred the indictment.   Just reading the language of the municipal court ruling makes clear that the case was decided and jeopardy should have attached.
• A child custody case with the majority opinion by Lamar.  The suit was between grandparents and a father (the mother had died), and questions of whether the father’s absence for 2+ years constituted abandonment and whether he could get custody.  The decision revolved around the interaction of the “best interest of the child” test and a natural parent’s presumptive right of custody, the later of which formed the basis of the chancellor’s ruling.  Kitchens dissented in part, as did Pierce joined by Carlson and (in part, although what part he does not say, Waller).   Pierece objected to the majority stepping into the chancellor’s rule, and Kitchens thought the persumption concerning natural parents decided the case.  The majority issue also has an interesting discussion of the effect of un-answered requests for admissions, the appropriate method of getting out from under them, and their effect on ultimate issues like the best interest of a child.
• Another child custody case with a Randolph opinion involving a joint custody arrangement where the trial court had changed custody based on the mother’s decision to move from Jackson to Memphis.  There is a Waller dissent arguing that a court can find a change of circumstance based on something that has not yet occurred; the father filed for the change before the mother had moved but when she was planning to do so.
• A manslaughter case with a Chandler opinion in which the issues were admission of gruesome photos, the Weathersby rule, and denial of a change of venue.  Given the weakness of the issues, I have trouble understanding why this wasn’t a Court of Appeals case.

• A medical malpractice case with everything you ever want to know about the presumptions under Miss.R.Civ.Pro. 5 about whether requirements of service by mailing have been met.  The question was whether the requirements of statutory notice had been met; the court noted that under Rule 5, the presumption was that something placed in the mail was delivered, and so what was required was proof of placing the notice in the mail.  Because all the plaintiff’s lawyer established was his usual practice for mailing– he did not have personal knowledge of placing it the mail– the court held the notice procedure was not met and the case should be dismissed without prejudice.  The trial court had, because of the proof question about mailing, converted the doctor’s motion to dismiss to a motion for summary judgment.  Justice Lamar opines that this is error, because a motion about the statutory notice provision does not reach the merits of the claim and calls for dismissal without prejudice.  This seemed odd to me at first (a fact issue on a motion to dismiss?) but then on reflection I realized there could be fact issues on motion to dismiss about, for instance, personal jurisdiction.  Justice Graves dissents but does not explain why.

Since there were no decisions on November 26th (Thanksgiving), I’ve covered everything back to October 22nd.  Earlier in the year, I covered all the decisions from 1/5 to 319 except possibly a few on 2/9, and all decisions from 4/30 to 8/21.  I have not discussed decisions from 3/26, 4/2, 4/23, 8/27, 9/10, 9/17, 9/24, 10/1, 10/8, and 10/15.