MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 8/24/2017

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 8/24/2017 UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. OLIVER, NO IA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Malicious prosecution - Tort Claims Act - Law enforcement officer - Section (2) - Malice - Course and scope of employment - Police protection immunity HON. WINSTON L. KIDD HINDS COUNTY CIRCUIT COURT THOMAS EUGENE WHITFIELD, JR., ROBERT V. GREENLEE LYDIA ROBERTA BLACKMON, EVERETT T. SANDERS Justice Maxwell Reversed and rendered. Facts: Analysis: Enoch Oliver filed a complaint naming as defendants UMMC, Investigator McBeath, and Officers Burfield, Lott, Watson, and Stewart. He alleged the officers at times were acting within the course and scope of their employment with UMMC, making UMMC vicariously liable and that [a]t other times, these defendants acted outside the course and scope of their employment and thus were individually liable. Oliver brought claims of negligence, gross negligence, negligence per se, defamation/libel, invasion of privacy, negligent/intentional infliction of emotional distress, assault, battery, false imprisonment, false arrest, and malicious prosecution based on both the misdemeanor charges and the felony charge. UMMC, McBeath, and Stewart were served with process, but Lott, Burfield, and Watson were not. UMMC, McBeath, and Stewart filed a motion to dismiss, which was joined by the unserved defendants, who specially appeared. The unserved defendants requested dismissal for Oliver s failure to serve them with process. The served defendants argued Oliver s claims were governed by the Mississippi Tort Claims Act and its one-year statute of limitations and therefore time-barred. The lone exception was the malicious prosecution of the felony claim, because the one-year statute of limitations did not begin to run until that charge was nolprossed. The circuit court entered an order of partial dismissal with prejudice which dismissed with prejudice all claims against Officers Lott, Burfield, and Watson, leaving UMMC, McBeath, and Stewart as the only defendants. And even then, the sole remaining claim against them was the malicious-prosecution claim based on the felony charge. Threeand-a-half years later, UMMC, McBeath, and Stewart filed a motion for summary judgment. The circuit court denied the defendants motion, finding genuine issues of material fact precluded summary judgment. UMMC, McBeath, and Stewart were granted permission to file an interlocutory appeal. What is at issue here is the application, if any, of the Tort Claims Act to a malicious prosecution claim against a law-enforcement officer and his or her government employer. This is an issue of first impression. The Mississippi Court of Appeals has held the Act Page 1 of 9

2 applied to a malicious-prosecution claim against Simpson County and its sheriff. And federal courts applying Mississippi law have gone both ways. In some cases, the Fifth Circuit and district courts have held malicious-prosecution claims fell under the Act. More recently, the Fifth Circuit and district courts have recognized the Act, specifically section (2), excludes malice-based torts, so malicious prosecution claims can be brought only against the officers individually. UMMC argues the Act does not apply to Oliver s claim against it, because conduct constituting malice is outside the course and scope of employment. Therefore, UMMC cannot, as a matter of law, be liable for the alleged malicious prosecution committed by its employees. Investigator McBeath and Officer Stewart, on the other hand, argue the Act does apply to Oliver s claims against them, because at all relevant times they were acting within the course and scope of their employment with UMMC. This, they suggest, shields them from personal liability. And in their official capacity, they suggest they enjoy police protection immunity. Based on the clear language of section (2), the Act does not apply to a malicious-prosecution claim against a governmental entity and its employees in their official capacity. Under section (2), torts in which malice is an essential element are not within the course and scope of employment. Malice is an essential element of malicious prosecution. This means, to prove UMMC s officers committed malicious prosecution, Oliver must prove the officers acted with malice. If he meets this burden, then necessarily he has proven they were acting outside the course and scope of their employment for purposes of the Act. For UMMC, this means, as a matter of law, it cannot be liable, and sovereign immunity cannot be considered to have been waived for the alleged malicious conduct of its officers. So the circuit court erred by not granting UMMC summary judgment on this basis. For McBeath and Stewart, this means Oliver s maliciousprosecution action necessarily proceeds against them in their individual capacities. Still, McBeath and Stewart are entitled to summary judgment on Oliver s malicious-prosecution claim. At the summary-judgment stage, Oliver s burden of proof became a burden of production. If he fails to establish malice, then he has no triable malicious-prosecution claim. When suing a law-enforcement officer for malicious prosecution, a plaintiff like Oliver has to show the officer instituted criminal proceeding with a purpose other than doing his or her job, which includes bringing criminal offenders to justice. This is a high bar. Oliver s evidence, even when viewed favorably, failed to reach this bar. Stewart s involvement was limited. Stewart did not file misdemeanor charges nor did he author one of the incident reports that led to Oliver s felony arrest. So Oliver has no evidence Stewart initiated criminal proceedings against Oliver. While Oliver claims McBeath acted maliciously, he concedes McBeath acted within the course and scope of his employment as a law-enforcement officer with UMMC. So taking this concession at face value, McBeath could not have acted with malice. Oliver argues the order of nolle prosequi sufficiently establishes McBeath lacked probable cause to press the felony charge. However, the reasoning underlying the nol-pros order was not legally sound. And the fact the felony charge was later nol-prossed and the reasons given cannot establish lack of probable cause at the time the charge was made. At the time, McBeath clearly had probable cause to arrest Oliver for felony assault. Therefore, judgment is rendered in the defendants favor. Page 2 of 9

3 Topics: Real property - Reservation of life estate - General warranty deed - Ownership of property - Completed transfer of real property Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: T & W HOMES ETC, LLC v. CROTWELL, NO IA SCT HON. MICHAEL H. WARD THOMAS D. LEE Civil SCOTT COUNTY CHANCERY COURT RICHARD MANNING LINGLE Presiding Justice Randolph Affirmed and remanded. Facts: Analysis: In 1973, Gilbert Lum conveyed a forty-acre tract of land by warranty deed to his daughter, Lucille Crotwell, reserving unto himself a life estate in the lands and all mineral interests owned by him. The deed recites receipt of good and valuable consideration and was filed of record. No words of inheritance were contained in the deed. In 1998, Lum executed a warranty deed for one acre of the forty-acre tract to Richard Prestage, subject to his life estate for the mineral interests of that one acre, in addition to excepting all prior mineral rights. By special warranty deed, Prestage subsequently deeded the same property from himself to himself and his wife, Sheri, as an estate by the entirety with full rights of survivorship. The Prestages then executed a deed of trust in favor of American Title Company, Inc., as trustee for Hurricane Mortgage Company, Inc. This deed of trust ultimately was assigned to HSBC Bank, USA, N.A., as trustee for Wells Fargo Asset Securities Corporation Home Equity- Backed Certificates. Emily Courteau, as Substituted Trustee, conducted a foreclosure sale of this deed of trust. T&W Homes, Etc, LLC, as the successful bidder and received a Substitute Trustee s Deed. Lucille Crotwell died intestate in Her sole heirs at-law, her husband and two sons, executed a quit-claim deed conveying the property to her two sons, Terry and James Crotwell, as joint tenants with full rights of survivorship. The Crotwells filed a complaint to confirm title, remove cloud on the title, and for ejectment. The parties filed competing motions for summary judgment. The chancellor found that Lum had reserved a life estate only, and that a reservation of the right to reconvey fee simple title was an illegal and void restraint upon alienation and repugnant to the granting clause of the deed. T&W filed an interlocutory appeal. T&W argues that deeds containing reservations of life estates with power to reconvey fee simple title are recognized in other states. Each case cited by T&W is not only foreign to Mississippi law, but is factually distinguishable. This case is governed by the law of deeds, not the law of wills and testaments. Lum did not deed his daughter a life estate with the power to dispose, but rather conveyed the property by a general warranty deed to his daughter in fee and reserved unto himself a life estate. The Lum-Crotwell deed was not a gift; it was a completed transfer or conveyance of real property with no reference to a contingent remainder. Crotwell was Lum s grantee. T&W s attempt to use testamentary law to settle a deed dispute is no less repugnant than the contested language in the deed. The deed from Lum to Crotwell was not a future gift. It was not an enhanced life estate with potential remaindermen. The deed effected a present conveyance, consideration of which was acknowledged in the deed. Lum convey[ed] and warrant[ed] the property to Crotwell. Page 3 of 9

4 The warranty deed contained no restriction on the warranty. Thus any attempt to reserve the power to reconvey, or convey again, fee simple title is repugnant to the grant of the warranty. Pursuant to the deed, Crotwell acquired ownership of the property upon delivery of the deed March 13, Lum could not subsequently convey to Prestage property he no longer owned. Thus, as found by the chancellor, Lum reserved unto himself a life estate only. During his lifetime, he could convey only what interest he owned, i.e., his life estate. DISSENT Presiding Justice Dickinson joined by Chief Justice Waller Page 4 of 9

5 CONTINENTAL CASUALTY CO. v. ALLSTATE PROPERTY AND CASUALTY INSURANCE CO., NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Insurance - Indemnity claim - Overlapping coverage policies - Intent of insurers - Other insurance clauses - Excess clause - Pro rata clause - Escape clause - Costs and expenses - Duty to defend - Sanctions - M.R.C.P Section (a) HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT MICHAEL RILEY MOORE, JOHN A. BANAHAN ROBERT ELLIOTT BRIGGS, III Justice Kitchens DA: Affirmed in part, reversed and rendered in part; CA: Affirmed. Facts: Analysis: As Greg Peters and Mike Williams were attempting to position Peters s fishing boat on its trailer, the winch handle recoiled, struck, and seriously injured Williams. Peters, who owned the truck, the trailer, and the boat, had two liability insurance policies covering bodily injury: his truck and trailer were insured by Allstate Property and Casualty Insurance Company and his boat was insured by Continental Casualty Company. Ultimately, the insurers settled with Williams for $460,000, each paying $230,000 toward the total settlement. Prior to settlement, however, the insurers had not agreed on apportionment. Continental sought a declaratory judgment, in which it claimed indemnity from Allstate based on its apportionment theory and also reimbursement for the defense costs it had incurred investigating the claim. Allstate responded with a motion to dismiss, in which it sought indemnity from Allstate based on its own apportionment theory and also sanctions against Continental for having made its defense costs and expenses claim. The circuit court treated the motion to dismiss as a motion for partial summary judgment and granted summary judgment in Allstate s favor, but declined to award sanctions to Allstate. Allstate then filed a motion for summary judgment on Continental s remaining indemnity claim, which the circuit court granted. Continental appeals, and Allstate cross-appeals. Issue 1: Indemnity claim Allstate argues that, because the boat covered by the Continental policy was in use at the time of Williams s injury, Continental is the primary coverage carrier. The general common law rule is that the liability of insurers under overlapping coverage policies is to be governed by the intent of the insurers as manifested by the terms of the policies which they have issued. There are three broad categories of other insurance clauses where the phraseology of the policies permitted. The first is a pro rata clause in which one company is primary but agrees to pay its pro rata share with other primary insurers. The second category is the excess clause, which insures the loss only to the extent it is not paid by other insurance. The third category is the escape clause where the insurer disclaims any liability where there is other coverage. Where an excess clause is in conflict with a pro rata clause in the other policy, the excess clause ordinarily would be given full effect. Here, the respective insurance policies contained other insurance clauses. The Allstate policy s other Page 5 of 9

6 insurance clause stated the following: [i]f more than one policy applies on a primary basis to an accident involving your insured auto, we will bear our proportionate share with other collectible liability insurance. The Continental policy s other insurance clause stated that [i]f there is any other available insurance that would apply in the absence of this policy, this insurance shall apply as excess over the other insurance.... While Allstate s other insurance clause provided that Allstate would bear a share proportionate with other collectible liability insurance in the event of an accident involving an insured auto, Continental s applied specifically to providing excess coverage when any other available insurance would apply. Allstate s policy, too, contained an excess clause: [i]f an insured person is using a substitute auto or non-owned auto, our liability insurance will be excess over other collectible insurance. Clearly, Allstate s excess clause has no application to the facts of the present case. The primary insurance policy limits must be exhausted before the excess carrier s liability arises. Continental argues that Allstate s policy limits of $250,000 must be exhausted before Continental s excess clause applies. Because Allstate paid only $230,000, Continental maintains on appeal that it is entitled to recover the $20,000 difference. That Continental did not specifically reference Coverage B in the General Conditions excess clause demonstrates its intent to provide excess coverage for bodily injuries regardless of the amount of the claim. In contrast, the excess clause applies in the context of claims relating to the boat/ boating equipment and the trailer only in the event the claims did not exceed the policy limits for those claims. The Operating Other Boats excess clause in the Coverage B boating liability section of the policy applies by its terms only to nonowned boats. The policy is not ambiguous. The other insurance clauses in Allstate s and Continental s respective policies do not conflict. The Allstate policy s other insurance clause is not triggered, since Continental s policy does not provide other collectible liability insurance. On the contrary, the Continental policy s other insurance clause provides that where any other available insurance would apply in the absence of this policy, the Continental coverage applies as excess coverage. And while each policy would provide primary coverage standing alone, the other insurance provisions of the respective policies do not have the effect of cancelling each other out. Rather, because Allstate provides other available insurance applicable in the absence of [the Continental] policy, Continental s excess provision controls. Because Allstate is the primary insurer and Continental is the excess insurer, the judgment is reversed and rendered in favor of Continental in the amount of $20,000. Issue 2: Costs and expenses Continental argues that it is entitled to recover $20, in defense costs and expenses incurred following its tender of defense to Allstate. An insurance company s duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy. Under Mississippi precedent, Allstate, the primary insurer, did not have a duty to defend Peters because Williams never filed a lawsuit. Allstate took the position in negotiations with Continental about their respective coverage positions that Allstate, as primary insurer, would defend Peters if and when a lawsuit was filed against him. Absent the filing of a lawsuit, Allstate had no obligation to defend Peters. The record is devoid of evidence that Continental conducted a thorough investigation while Allstate did nothing. Continental s claim that it received virtually nothing from Allstate is not supported by the record. Thus, the judgment of the circuit court granting summary judgment to Allstate is affirmed. Issue 3: Sanctions Page 6 of 9

7 Allstate sought sanctions pursuant to M.R.C.P. 11 and the Litigation Accountability Act. Allstate cross-appeals the circuit court s denial of sanctions. Section (a) defines [w]ithout substantial justification as frivolous, groundless in fact or in law, or vexation, as determined by the court. A claim is frivolous when the claimant has no hope of success. Thus, sanctions would be inappropriate if the plaintiff had some chance of success. Here, while the cases cited by Continental in the trial court may have been distinguishable, Continental s position was neither frivolous nor interposed for delay or harassment. It cannot be said therefore that the trial court abused its discretion in declining to award sanctions to Allstate. CONCUR IN PART, DISSENT IN PART Presiding Justice Randolph joined by Justices Maxwell, Beam and Chamberlin Page 7 of 9

8 ASHWELL v. STATE, NO CT SCT CONSOLIDATED WITH NO CT SCT Topics: Post-conviction relief - Challenge to one conviction - Section (2) - Criminal information - Charging document - Jurisdiction Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Criminal - ON WRIT OF CERTIORARI HON. PRENTISS GREENE HARRELL LAWRENCE COUNTY CIRCUIT COURT TIMOTHY KEVIN BYRNE OFFICE OF THE ATTORNEY GENERAL: BARBARA WAKELAND BYRD Presiding Justice Dickinson Reversed and vacated. Facts: Analysis: William Ashwell pled guilty to burglary and escape. Ashwell later filed a pro se Petition for Writ of Habeas Corpus/Motion to Vacate Conviction and Sentence, claiming the circuit court lacked jurisdiction or authority to accept his guilty pleas because the State never filed any charging documents. Ashwell supported his petition with copies of the docket sheet from each cause number, which reflected no indictment or information had been filed. The petition also claimed Ashwell s waivers were ineffective because they failed to specify the dates of the offenses. The circuit judge treated the filing as a petition for post-conviction relief. The circuit judge entered an order denying Ashwell relief from the burglary conviction on the merits and from his escape conviction, because Ashwell attacked both convictions in the same petition, which section (2) purports to prohibit. Ashwell appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. Section (2) provides that [a] motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions. Through that statute, the Legislature mandates that a petition for post-conviction relief attack only one conviction. This would be no different from a statute prohibiting more than one count in a tort lawsuit complaint and mandating that plaintiffs must file separate lawsuits for each count. The Constitution grants the Legislature no power to limit the number of claims a litigant may plead in a particular pleading. So the circuit judge erred by rejecting Ashwell s claim pertaining to his escape conviction. A plea of guilty does not waive the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive subject matter jurisdiction. The Court of Appeals affirmed the circuit judge s reasoning that a criminal information must have existed because it was mentioned in the plea documents, plea colloquy, and a prosecutor s affidavit. But Ashwell s claim does not rest on the existence of a document which purported to be a criminal information, but rather on the fact that the State failed ever to charge him with a crime. The docket sheet in each criminal case reflects that no criminal information ever was filed with the circuit court. Nor did the criminal files themselves include any charging document, a fact the circuit judge confirmed by personally reviewing each criminal file. A defendant is charged when the information is filed. Therefore, the circuit court lacks jurisdiction and authority to accept a guilty plea for a crime for which Page 8 of 9

9 Ashwell never has been charged. Thus, his convictions for burglary and escape are vacated. CONCUR Justice Kitchens joined by Justices King and Coleman and in part by Justices Maxwell, Beam and Chamberlin CONCUR N RESULT ONLY Justice Chamberlin joined by Presiding Justice Randolph and Justices Maxwell and Beam and in part by Justice Kitchens CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Justice Beam Page 9 of 9