MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 5/9/2017

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 5/9/2017 BAR-TIL, INC. v. SUPERIOR ASPHALT, INC., NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contract - Attorney's charging lien - Section Writ of garnishment - Right to interplead - First in priority - Section (1) - Jurisdiction - Supersedeas bond - Post-judgment interest - Attorney's fees HON. J. DEWAYNE THOMAS HINDS COUNTY CHANCERY COURT CHUCK MCRAE, SETH CLAYTON LITTLE, CHRISTOPHER ANTHONY BAMBACH JOSEPH LEE ADAMS, LINDSAY THOMAS DOWDLE, DONALD ALAN WINDHAM, CRANE D. KIPP, PATRICK VANCE DALY, CORY LOUIS RADICIONI Judge Greenlee Reversed and remanded. Facts: Bar-Til Inc. entered into a contract with Superior Asphalt Inc. to perform work related to clearing acreage and stripping topsoil. Superior Asphalt failed to pay Bar-Til for all of the work completed. Represented by the McRae Law Firm on a contingency-fee basis, Bar-Til sued Superior Asphalt for breach of contract in As a result of Superior Asphalt s failure to pay Bar-Til, Bar-Til failed to pay H&E Equipment Services Inc. H&E Equipment obtained a default judgment against Bar-Til in 2009, and in 2010 was granted permission to intervene in Bar-Til s suit against Superior Asphalt. H&E Equipment properly served a writ of garnishment against Superior Asphalt in In 2012, after McRae Law Firm expended more than $16,000 in expenses, Bar-Til won a judgment against Superior Asphalt (including interest) in the amount of $205, Superior Asphalt did not appeal the judgment, but instead filed a motion to interplead $205, into the registry of the court under that same cause number. Bar-Til appealed the chancellor s denial of punitive damages. While the appeal was pending, the chancellor granted Superior Asphalt s renewed motion to interplead the funds, and issued an order declaring the judgment satisfied in full. In 2014, the appellate court affirmed the chancellor s denial of Bar-Til s request for punitive damages. Counsel for another Bar-Til creditor, MMC Materials Inc, noticed the opinion while browsing the weekly hand-down list. MMC Materials had obtained a judgment against Bar-Til in 2008 unrelated to the contract dispute between BarTil and Superior Asphalt. Newly aware that Bar-Til had funds available to pay its creditors, MMC Materials filed a motion to intervene and claim a portion of the interpled funds. Also around this time, MMC Materials properly served Superior Asphalt with a writ of garnishment, which Superior Asphalt answered acknowledging its debt to Bar-Til and referencing the interpled funds. The McRae Law Firm also filed a motion asserting priority over the interpled funds and requesting permission to withdraw an amount representing its forty-percent contingency fee and reimbursement for expenses. The interpled funds were insufficient to cover the claims of all parties. Rather Page 1 of 20

2 than determine the respective priority of the parties, the chancery court doled out a portion of the funds to each party. The court awarded H&E Equipment $74,230, MMC Materials $23,626.08, the law firm $72,348.20, and the other nongarnishor creditor $35, Bar- Til appeals, and both H&E Equipment and MMC Materials cross-appeal. Analysis: Issue 1: Attorney s charging lien All of the parties agree that the chancellor erred as a matter of law in granting each party involved a portion of the money rather than determining the order of descending priority. Mississippi has long recognized an attorney s right to have a lien on judgments and decrees procured through an attorney s efforts on behalf of his client. A charging lien attaches when the attorney successfully pursues the lawsuit to conclusion and obtains a final judgment from which there is no appeal. At that point, the attorney s entitlement to a fee is vested. Pursuant to section , garnishees have the statutory right to compel interpleader. The charging lien, protecting the attorney s right to the fruits of his labor, and the right to interplead, protecting the garnishee from double liability, should not intersect with each other in such a way that frustrates one or the other right. Here, the monies would not be available for distribution to the garnishors had not Bar-Til s right to the judgment first vested. Superior Asphalt surrendered the money in satisfaction of the judgment against it, with no further right of appeal. Superior Asphalt s deposit of the funds into the registry of the court, consistent with its right to protect itself from double liability, did not prevent the law firm s charging lien from attaching to the interpled funds. The law firm is first in priority. As to priority between H&E Equipment and MMC Materials, MMC Materials properly concedes that H&E Equipment has priority. Section (1) provides in part that [w]here more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served. H&E Equipment was first to serve Superior Asphalt with a writ of garnishment related to any funds owed by Superior Asphalt to Bar-Til. Issue 2: Jurisdiction Bar-Til argues that the chancery court did not have the jurisdiction to accept the interpled funds because at the time the funds were interpled, Bar-Til s appeal on the issue of punitive damages was still pending. When an appeal is taken, the lower court loses authority to amend, modify, or reconsider its judgment. However, when an appeal has no supersedeas bond, a party may execute on the judgment. Superior Asphalt merely sought to escrow a judgment that had not been stayed by supersedeas. In Mississippi, a party is not liable for post-judgment interest after impleading payments into the registry of the court. Therefore, the chancery court had authority to accept the interpled funds, and Bar-Til was not entitled to additional post-judgment interest once the funds were interpled. H&E Equipment argues that the law firm s expenses and forty-percent contingency fee are unreasonable. Attorney s fees must be reasonable, whether contracted for or arising out of a common-law charging lien. On the facts of this case, there are no grounds in the record to support that the fee or expenses are unreasonable. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson Page 2 of 20

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4 KORELITZ v. KORELITZ, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Termination of alimony - Lump-sum alimony - Property settlement agreement HON. ROBERT GEORGE CLARK III MADISON COUNTY CHANCERY COURT ROBERT MARVIN PEEBLES, MATTHEW STANLEY EASTERLING, MARTY CRAIG ROBERTSON AMY D. JORDAN Judge Ishee Affirmed. Facts: Analysis: Brian Korelitz and Ruth e Korelitz were granted a divorce. They entered into a written property settlement agreement. The alimony provision of the agreement originally contained the word periodic six times. But after negotiations between the parties, each instance of periodic was stricken through and initialed by both parties. Additionally, there was a handwritten clause stating that the alimony provision of the agreement was nonmodifiable. This was also initialed by both parties. Years later, Brian initiated an action to terminate his alimony obligation. Alternatively, Brian asked the court to modify his alimony on the ground that he had experienced a substantial decrease in his income. The chancellor found that the alimony provision was to be classified as lump-sum alimony and thus not subject to modification. Brian appeals. Brian argues that the chancellor abused his discretion in categorizing the alimony provision of the agreement as lump-sum alimony rather than periodic alimony. As a general rule, periodic alimony has no fixed termination date; instead, it automatically terminates at the death of the obligor or the remarriage of the obligee. Lump sum alimony may be payable in a single lump sum or fixed periodic installments. Lump sum alimony is a final settlement between husband and wife and may not be changed or modified by either party, absent fraud. When looking to the terms of the agreement in this case, the parties intent is evident. The word periodic was initially inserted into the alimony paragraph six times. But, in the course of negotiations by the parties, the word was later stricken through and initialed by the parties, in every place the word appeared. This evidences a clear intent that the parties did not want for the alimony to be considered periodic. Moreover, the handwritten change on the agreement which states, said payments are further non-modifiable, except as set forth herein above, is further evidence of the parties intent. Furthermore, the agreement outlines a certain payment amount, and specific payment dates. The agreement also leads to a specified end date. What is more, Brian also agreed to assure his alimony payments by maintaining certain insurance policies. This, too, is further evidence that the alimony here is lump sum not periodic. Thus, there is no error. Brian also argues that the chancellor abused his discretion in determining that Ruth e s alleged cohabitation and Brian s reduction of income were irrelevant to the court s consideration of Brian s request for a modification. However, these considerations are irrelevant, given that an order for lump sum alimony provides the recipient spouse with a vested right to receive said payments. Page 4 of 20

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6 Topics: Wrongful death - Vicarious liability - Doctrine of respondeat superior - Inadequate drug screening Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: COOPER v. SEA WEST MECHANICAL, INC., NO CA COA HON. PRENTISS GREENE HARRELL LAWRENCE COUNTY CIRCUIT COURT EDWARD D. MARKLE L. CLARK HICKS JR., R. LANE DOSSETT Chief Judge Lee Affirmed. Civil Facts: Analysis: Mary Cooper was standing at the rear of her vehicle when she was struck by Zachary Savoie. Cooper died at the scene. Her wrongful-death beneficiaries filed suit against Savoie; Fleisha Sanford, Savoie s mother; and Sea West, Savoie s employer. Cooper eventually settled with Savoie, and the suit against him was dismissed. The trial court granted summary judgment in favor of both Sanford and Sea West. Cooper appeals. Cooper argues that the trial court addressed an issue in its order granting summary judgment that Sea West did not raise in its motion for summary judgment namely, that Sea West was not negligent regarding its drug testing and policies. This particular issue was not raised in Sea West s motion or amended motion for summary judgment, but both parties discussed it during the summary-judgment hearing. Regardless, the trial court s main reason for granting summary judgment for Sea West was that Sea West was not vicariously liable for Savoie s actions. The doctrine of respondeat superior, from which vicarious liability is derived, specifically applies to an employer-employee relationship and holds employers liable in tort for the negligent actions of their employees, taken on behalf of the employer while in the course and scope of their employment. In this case, Sea West was not vicariously liable for Savoie s actions. At the time of the accident, Savoie was on his unpaid lunch break and driving his personal vehicle. There is no evidence that Savoie was acting in furtherance of Sea West s business. Cooper also argues that genuine issues of fact exist regarding Sea West s knowledge of Savoie s drug use and its inadequate drug screening facts that Cooper previously argued were improperly raised during the summary-judgment hearing. However, Westbrooks stated in his deposition that he frequently observed his employees during work and had never seen Savoie act as if he was under the influence of drugs. Although Savoie tested positive for marijuana on the day of the accident, there was no expert evidence regarding the test results or how the level of marijuana present might affect someone. There was simply no evidence that Sea West knew or should have known that Savoie was under the influence of marijuana on the day of the accident. Page 6 of 20

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8 OBENE v. JACKSON STATE UNIVERSITY, NO SA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Wrongful discharge - Employment at will - Employment contract - Illegal acts HON. WILLIAM A. GOWAN JR. HINDS COUNTY CIRCUIT COURT J. KEITH PEARSON, SARAH LYNN DICKEY ALAN M. PURDIE, DION JEFFERY SHANLEY Chief Judge Lee Affirmed. Facts: Analysis: Dr. Tontel Obene was employed by Jackson State University as the lead epidemiologist/evaluator for the Delta Health Project, a research project coordinated by the Mississippi Urban Research Center, a division of JSU. The project was funded by a five-year grant for HIV prevention from the Centers for Disease Control. The CDC provided funding to the Mississippi Department of Health and in turn, MDH contracted with MURC to perform part of the evaluation work under the grant. At all relevant times, Dr. Obene s supervisor was Dr. Melvin Davis, the director of MURC and the project director for the grant. Dr. Obene s employment with JSU was tied directly to her work on the grant project and characterized by a letter of employment. The dates of employment stated in the letter directly corresponded with the phases of the five-year grant, which was renewable every year. The first phase was set to expire on September 29, The grant was extended for a period of three months, September 30, 2010, through December 31, Dr. Obene was assigned to complete the application for the three-month continuation phase. One of Dr. Obene s job responsibilities included drafting the budget proposal for the next phase of the grant project s continuation. During the first phase of the project, Dr. Davis received 2% of the grant funds for his supervisory role. For the continuation phase, Dr. Davis requested that Dr. Obene submit the application with a proposed increase to 10% for his extra-duty pay because he anticipated a greater involvement during the continuation phase. Dr. Obene refused, stating that she did not believe the requested increase was justified, and there was no room in the budget. Dr. Obene filed a complaint with Sandra Sellers, the executive director of the Human Resources Department at JSU, detailing numerous grievances against Dr. Davis. She also copied the State Auditor, Attorney General, Dr. Davis, and Dr. Davis s supervisor, Dr. Felix Okojie, on the complaint. On September 28, 2010, Dr. Davis ed Dr. Obene to remind her that September 29, 2010, was the last day of her employment due to her contract s expiration which corresponded with the phase of the grant. Additionally, an exit interview was completed. At this time the grant was in a phase of renewal. On November 28, 2010, Dr. Obene received a letter from Sellers, stating that her employment with JSU was terminated effective September 29, Dr. Obene filed suit for wrongful discharge against JSU, in which she asserted she was terminated for reporting the illegal activity of Dr. Davis. JSU filed a motion for summary judgment which the court granted. Dr. Obene appeals. Mississippi follows the doctrine of employment at will, under which either an employer or an employee may terminate an employment relationship, unless the parties are bound by an employment contract or a contract detailing the term of employment. It is evident from the Page 8 of 20

9 record that Dr. Obene s employment with JSU was characterized by an employment contract that coincided with the grant project on which she worked, and that this employment contract specified a definite term of employment. However, the employment contract also explicitly stated that Jackson State University, the employer, reserve[d] the right to terminate [Dr. Obene s] employment... at any time.... As such, the provision giving JSU the unfettered right to terminate rendered Dr. Obene s employment at will. An employee is not barred from bringing suit even though an at-will employee where an employee refuses to participate in an illegal act, and where an employee is discharged for reporting illegal acts of his employer. The acts complained of must warrant the imposition of criminal penalties, as opposed to mere civil penalties. Dr. Obene argues that there was a genuine issue of material fact as to whether Dr. Davis s actions were illegal. Specifically, Dr. Obene argues that Dr. Davis s request for 10% of the grant funds for his supervisory role was a violation of title 18, section 641 of the United States Code. However, the conduct that Dr. Obene complains about wholly fails to constitute an illegal act under section 641. Further, there was no evidence that JSU or Dr. Davis had committed an illegal act beyond Dr. Obene s assertion that Dr. Davis s request for an increase of the grant funds was illegal. Thus, JSU is entitled to summary judgment. CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION Judge Carlton Page 9 of 20

10 BILLINGSLEY v. BILLINGSLEY, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Divorce: Adultery - Ferguson factors - Distribution of marital estate - IRA calculation - Bank accounts - Separate property - Valuation date - Point of demarcation - Insurance premiums - Tax exemption - School expenses - Visitation schedule - Value of house HON. KENNETH M. BURNS LOWNDES COUNTY CHANCERY COURT CARRIE A. JOURDAN MARK G. WILLIAMSON Presiding Judge Irving Affirmed in part, reversed in part and remanded. Facts: Analysis: Amy Billingsley filed a complaint for divorce against Ralph Billingsley, alleging grounds of habitual cruel and inhuman treatment and habitual drunkenness, or, in the alternative, irreconcilable differences. Ralph answered the complaint and filed a counter-complaint for divorce, alleging adultery, desertion, and habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences. The court granted Ralph a divorce on the grounds of adultery, while denying Amy s petition for divorce. Per the parties agreement, they were given joint legal custody of the children, and Amy was given physical custody, with visitation to Ralph. The rest of the judgment primarily addressed the division of the Billingsleys property. Ralph filed a motion with the court to reconsider and to clarify its decision with regard to the distribution of assets and certain provisions of visitation. The court denied Ralph s motion. Ralph appeals. Issue 1: Ferguson factors Ralph argues that the chancellor misapplied several of the Ferguson factors and incorrectly designated the amount of weight given to each factor, resulting in a disproportionate distribution of the marital estate. Ralph s assertion that Amy s adulterous misconduct should have predominated over all other factors is incorrect as chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. Amy s misconduct is one of many factors the chancellor used to determine the correct distribution of assets and, based on the chancellor s order, it appears that he did not take Amy s misconduct lightly. Overall, the chancellor did not err with regard to the Ferguson factors. Issue 2: IRA calculation Ralph argues that the chancellor incorrectly calculated the marital portion of the IRA. The chancellor erred because the figure used by the chancellor for the marital contributions was incorrect; the formula used to calculate Ralph s separate portion of the IRA failed to account for the continuing appreciation of Ralph s separate contribution; and the calculation treated the appreciation of the marital portion of the IRA as if the total marital contributions had been made as of the date of the marriage, despite the fact that those contributions were made Page 10 of 20

11 over a twelve-year period. Therefore, this issue is reversed and remanded to the chancery court for a corrected calculation of Ralph s separate portion of the IRA. Issue 3: Bank accounts With respect to the Renasant Bank account, Ralph argues that during the marriage, he used this account as his personal checking account, so it should have been classified as his separate/nonmarital property. However, the court classified this asset as marital and divided it. On the financial statements of the parties, Amy does not list the Renasant account as an asset at all; conversely, Ralph lists the account as his separate personal account, and his name is the only name on the account. Although the chancery court incorrectly referred to the account as a joint account, the court did not err in treating it as s marital property and dividing it between the parties as a marital asset because Ralph s testimony that he used it as his personal account throughout the course of the marriage does not necessarily make it his separate property. Ralph argues that the court incorrectly listed the Citizens account as his separate account and awarded the full amount to him. He asserts that the Citizens account was actually a joint account and its $100 balance should have been divided between him and Amy. There is no error with the court s decision in this regard. Issue 4: Wells Fargo IRA Ralph argues that the chancellor erred in classifying the Wells Fargo IRA as a marital asset. He alleges that the contributions to this IRA were made prior to the marriage and that no contributions were made during the marriage. Ralph testified on direct and crossexamination that the IRA was his separate property. He also testified that he owned it before their marriage and had not contributed to it during the marriage. His assertions were not disputed at trial, nor were they disputed in Amy s appeals brief. Although the amount of the misclassified IRA $12,890 is fairly small in comparison to the overall amount of the marital estate $798,421 as determined by the chancellor, this error requires that the case be reversed and remanded. Issue 5: Valuation date Ralph argues that the chancellor erred on the valuation date for the PERS account and for the Old West Point Road property. He asserts that the court should have used the date of the separation as the date to determine the value of these marital assets, since Amy made no contribution to the marriage after the separation date. The court selected the trial date as the point of demarcation for purposes of evaluating the marital estate. The date on which assets cease to be marital and become separate assets, the point of demarcation] can be either the date of separation (at the earliest) or the date of divorce (at the latest). Here, the chancellor did not abuse his discretion. Issue 6: Financial awards Ralph argues that since Amy is receiving rather substantial child support and has the ability to earn a considerable income, she should be required to pay one-half of the medical and dental insurance premiums for the minor children. Even in the absence of Ralph s agreement to pay these amounts, there is no error in the court s ordering Ralph to be responsible for these expenses. Ralph argues that based on the property distribution favoring Amy, she should not be again rewarded with a tax exemption for the youngest child. Not only has Ralph failed to cite authority for his position, but the chancellor did not abuse his Page 11 of 20

12 discretion. Ralph argues that the court should have ordered Amy to reimburse him for half of the school expenses for all years going forward. Since Ralph was not ordered by the court to pay any future school expenses for the children, this issue will not be addressed. Ralph argues that the court incorrectly awarded Amy coverage under COBRA for twelve months and ordered him to pay for it. However, the chancellor did not abuse his discretion in ordering payment of twelve months of insurance coverage for Amy. Issue 7: Visitation schedule Ralph argues that the chancellor erred in not awarding him visitation with the children on any Easter Sunday. In addition, he argues that the weekly visitation schedule was not what they agreed to. The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children. As evidenced by the statement in the chancellor s order, he attempted to provide a visitation schedule consistent with the information available to him. Moreover, if the visitation schedule set forth in the chancellor s order was not consistent with the parties agreement, Ralph should have sought a modification on this issue in the chancery court. Having failed to do so, he cannot be heard to complain here. Issue 8: Value of house At the time of trial, the 11th Street North property was valued at $200,000, with an outstanding debt of $203,511. The Old West Point Road property was valued at $300,000, with a mortgage balance of $121,000. Ralph had purchased the 11th Street North property in 1984, eleven years prior to his marriage to Amy. When he and Amy married, they used the 11th Street North property as their marital domicile. The chancellor found both properties to be marital property and subtracted the negative equity of the 11th Street North property from the positive equity in the Old West Point Road property to arrive at $175,489 of total equity. He then gave each party half of that equity $87, each. Ralph argues that the chancellor did not give him credit for approximately $70,000 in equity which he had in the 11th Street North property at the time of his marriage to Amy. The 11th Street North property became marital property and that the chancellor did not err in classifying it as such. However, the chancellor s splitting the equity in the Old West Point Road property equally between Ralph and Amy fails to take into consideration that a good portion of that equity emanated from the equity that Ralph had in the 11th Street North property before it became marital property. Thus, on remand, the court should reconsider whether the equity in the marital homes should be divided equally between Ralph and Amy in light of Ralph s initial nonmarital investment in the 11th Street North property. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson DISSENT WITHOUT SEPARATE OPINION Judge Fair Page 12 of 20

13 BOSTICK v. DESOTO COUNTY, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Real property - Rental to transient guests - Zoning regulations - Single family dwelling - Permitted uses - Short-term renters - Definition of dwelling - Definition of hotel HON. MITCHELL M. LUNDY JR. DESOTO COUNTY CHANCERY COURT WILLIAM P. MYERS ROBERT E. QUIMBY Judge Wilson Affirmed. Facts: Analysis: Tom Bostick and Larry Poe own houses in a residential subdivision. They began offering their houses for short-term rent to transient guests on HomeAway.com and other websites. DeSoto County contends that such rentals are not a permitted use under applicable DeSoto County Zoning Regulations, which permit, as relevant in this case, single family dwellings. The chancery court agreed and permanently enjoined Bostick and Poe from offering their houses as vacation rentals to short-term, transient renters. Bostick and Poe appeal. Bostick and Poe argue that the DeSoto County Zoning Regulations do not prohibit the rental of a single family dwelling to transient guests on a short-term basis. Under the DeSoto County Zoning Regulations, the houses at issue are in a Residential Overlay District referred to as A-R Overlay. Permitted uses in the A-R Overlay District are the same [u]ses permitted in the underlying base zone district, which is A-R the Agricultural-Residential District. Permitted Uses in the A-R District include [s]ingle family dwellings. Article II of the DeSoto County Zoning Regulations provides definitions for dwellings. The County argues that transient, short-term renters do not use the houses as a residence, as contemplated by the definition. The County also argues that the houses have been put to a hotel-like use, which excludes them from the definition. The County concludes that because such use of the houses is contrary to the definition of dwelling, it is also contrary to their permitted use as single family dwellings. A hotel is defined to include a building in which overnight lodging is provided and offered to the public for compensation, and which is open to transient guests. As used by Bostick and Poe, the houses at issue meet this definition: they are offered for rent on public websites, and they are marketed and open to transient guests. Furthermore, given that the definition of a dwelling specifically excludes a room in a hotel, it is not manifestly unreasonable for the County to apply the exclusion to a property being used as a hotel. The DeSoto County Zoning Regulations more specific definition of a single family dwelling provides additional support for the injunction. The zoning regulations define a single family dwelling whether attached or detached as [a] dwelling designed for and occupied by not more than one family.... Regardless of whether any particular group that rented from Bostick or Poe met the definition of a family, the transient nature of the rentals resulted in the houses being occupied by... more than one family, a non-permitted use under the applicable zoning regulations. Bostick and Poe rented their houses for occupancies Page 13 of 20

14 by a succession of short-term, transient renters. Thus, the chancery court judgment is affirmed. DISSENT Judge Barnes joined by Chief Judge Lee Page 14 of 20

15 TRIANGLE CONSTRUCTION CO., INC. v. FOUCHE AND ASSOCIATES, INC., NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contract - Accord and satisfaction - Contractual duty - Express party to contract - Contract implied in fact - Duty to obtain easements - Breach of duty - Extracontractual duties in tort HON. WILLIAM E. CHAPMAN III RANKIN COUNTY CIRCUIT COURT MACY DERALD HANSON CECIL MAISON HEIDELBERG Presiding Judge Irving Affirmed. Facts: Analysis: Triangle Construction Company filed suit against East Madison Water Association and Fouche and Associates, alleging that it had entered into a contract with EMWA that had been breached by both EMWA and Fouche, the designated engineer in the contract. It further alleged, based upon several theories, that it was entitled to recover damages from Fouche. Both Fouche and EMWA filed separate motions for summary judgment. The circuit court granted Fouche s motion and entered judgment pursuant to M.R.C.P. 54(b). Triangle appeals. Issue 1: Accord and satisfaction Triangle argues that there are genuine issues of material fact regarding whether it reached an accord-and-satisfaction agreement with EMWA and Fouche, such that summary judgment should not have been granted. The elements of an accord and satisfaction include something of value must be offered in full satisfaction of a demand; the offer must be accompanied by acts and declarations that amount to a condition that if the thing is accepted, it is accepted in satisfaction; the party offered the thing of value must understand that if he takes it, he takes subject to such conditions; and the party offered the item must actually accept the item. Triangle maintains that it did not accept EMWA s Final Payment, because it repeatedly told EMWA that its acceptance of the check did not waive its claim for further payment. The record includes both the check from EMWA for $129, marked Final Payment, and a letter from Triangle s attorney to Fouche, in which Triangle asserts that $129, is insufficient payment for all the work that Triangle performed on this job, and that Triangle does not waive, in any way, its contractual claims to additional funds under the terms of the bid contract. However, Mississippi law is clear that, despite whatever contentions a party may make to the contrary, cashing a check marked final payment constitutes an accord-and-satisfaction agreement, which precludes that party from bringing future claims for additional payment. Triangle cannot now argue that Fouche and EMWA are separate entities solely for the sake of its accord-and-satisfaction argument. Thus, Triangle s claims against Fouche are barred pursuant to the doctrine of accord and satisfaction. Issue 2: Contractual duty Page 15 of 20

16 Triangle argues that genuine issues of material fact exist as to whether Fouche owed a contractual duty to Triangle, either expressly or through a contract implied in fact, to obtain the easements on behalf of EMWA. Triangle asserts that Fouche was a party to the Contract, despite the fact that Fouche did not actually sign the agreement. Triangle s argument is premised on the fact that Fouche s company s seal was affixed to the Contract s cover and Fouche was designated as the project s engineer in the Contract s terms. Fouche is not an express party to the Contract. The specific portion of the Contract in dispute the Specifications for Water Distribution System Addition 2009 agreement is entitled AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) FUNDING AGENCY EDITION. The title makes no mention of Fouche, and expressly provides that this Contract is between the Owner (EMWA) and the Contractor (Triangle). Triangle overlooks the critical language limiting Fouche s role only to that specified by the Contract. Section 4.01 provides that EMWA is responsible for obtaining the easements; Section 9.09(A) of the Contract provides that no provision of the Contract or behavior by Fouche will create, impose, or give rise to any duty in contract, tort, or otherwise owed by [Fouche] to [Triangle]. These provisions explicitly limit Fouche s duties and do not include the responsibility of obtaining easements. Triangle alternatively contends that if Fouche is not an express party to the Contract, Fouche had a contractual duty to obtain the easements, implied in fact from the parties behavior throughout the duration of the construction project. A contract implied in fact, also referred to as a quasi-contract, is an obligation created by law, in the absence of an agreement, when and because the acts of the parties or others have placed in the possession of one person money under circumstances that in equity and good conscience he ought not to retain and which in justice and fairness belong to another. Section 4.01 of the Contract unambiguously provides that EMWA, not Fouche, had the duty to procure the easements for the project, and that Triangle may not now offer parol evidence suggesting otherwise. Further, Fouche provides evidence that EMWA accepted responsibility for obtaining the easements. Given these facts, it is evident that EMWA was responsible for procuring the easements for the project. Issue 3: Breach of duty Triangle argues that genuine issues of material fact exist as to whether Fouche breached its duty to Triangle to act in a reasonable and prudent manner in its professional capacity. However, there is insufficient evidence to suggest that Fouche actually owed any extracontractual duties in tort to Triangle, as Triangle suggests. Not only do the terms of the Contract explicitly provide otherwise, as evidenced by Section 9.09(A), but the deposition of Triangle s president, Robert King, indicates that Fouche was not even responsible for the duties that Triangle now argues it was. Fouche owed no duty to Triangle. Thus, the circuit court did not err in granting Fouche s motion for summary judgment. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson Page 16 of 20

17 KEYS v. STATE, NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Sexual battery - Sufficiency of evidence - Jury instructions - Sharplin instruction - Prosecutor's comments - Comment on failure to testify - Closing argument HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MCMILLIN OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Judge Wilson Affirmed. Facts: Analysis: Kuren Keys was convicted of two counts of sexual battery. He was sentenced to fifteen years for Count I and thirty years for Count II. He appeals. Issue 1: Sufficiency of evidence There was sufficient evidence to sustain Keys s convictions. The victim s testimony was substantially corroborated by DNA evidence, a friend s testimony, and the testimony of those to whom she immediately reported the assault. As to Count I, Keys argues that he should not have been convicted because Instruction S-4 stated as follows: The Court instructs the jury that sexual penetration is any penetration of the genital or anal openings of another person s body by any part of a person s body. Although the court mistakenly omitted fellatio from this definition, he elements instruction for Count I clearly required the jury to find beyond a reasonable doubt that Keys willfully committed sexual battery by engaging in an act of sexual penetration, to-wit: by inserting his penis into the mouth of [the victim] without her consent. The instruction further stated that if the jury could not find any one or more of the elements beyond a reasonable doubt, it was required to find Keys not guilty. The jury obviously found that all essential elements had been proven beyond a reasonable doubt. The omission from the separate instruction was harmless. Issue 2: Jury instructions Keys challenges various jury instructions on a number of grounds. Instructions S-1 and S-2 properly and completely instructed the jury on the elements of the offense of sexual battery as they related to Count I and Count II. Keys argues that the instructions were erroneous because they used the victim s initials rather than her full name and because they referred to his indictment which was never read to the jury. However, there is no requirement that instructions use the victim s full name rather than initials or that the indictment be read to the jury. With regard to instruction S-3, Keys argues that the instruction s reference to the slightest penetration is a misstatement of the law, vague, and unconstitutional. However, the instruction was a correct and proper statement of the law. The Mississippi Supreme Court has held that slight penetration is sufficient to constitute sexual battery. Keys argues that instruction S-4 s use of the term any renders the instruction vague or misleading. However, the instruction properly and clearly states the applicable law. After the jurors Page 17 of 20

18 deliberated for some period of time, they sent the trial judge a note with a question concerning both Count I and Count II. The trial judge conferred with counsel and, over Keys s objection, gave a standard Sharplin instruction. A trial judge may give a Sharplin instruction if the judge receives a note indicating division among the jurors, but the judge feels that there is a likelihood that the jury might reach a verdict if returned for further deliberations. Here, the trial judge did not abuse his discretion by giving an instruction that precisely tracked the instruction approved in Sharplin. Issue 3: Prosecutor s comments Keys argues that the prosecutor s use of words such as rape and victim was inflammatory and prejudicial. Keys did not object to any of the allegedly prejudicial statements at trial, so these arguments are procedurally barred on appeal. Also, the prosecutor s comments were based on the victim s testimony and were not inflammatory or unfairly prejudicial. Keys also argues that the State unfairly commented on his decision not to testify at trial. Attorneys are allowed wide latitude in their closing arguments and there is an obvious difference between a comment on the defendant s failure to testify and a comment on the defendant s failure to put on a credible defense. While the former is not permitted, the latter is permissible. Here, the prosecutor s comments during closing argument in this case were directed toward Keys s general failure to put on a credible defense, not his decision not to testify. Page 18 of 20

19 WILLARD v. STATE, NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Sexual battery - Exclusion of testimony - URCCC 9.04(C) - Discovery violation - Disclosure of witnesses - Jury instruction - Improper comment on evidence HON. CHRISTOPHER LOUIS SCHMIDT STONE COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA MCCLINTON Presiding Judge Irving Reversed and remanded. Facts: Analysis: Chad Willard was convicted of sexual battery and sentenced as a habitual offender to thirty years. He appeals. Issue 1: Exclusion of testimony Willard claims that the circuit court erred when it limited the testimony of a defense witness (Willard s son). Willard has a constitutional right to call witnesses in his favor. But, as required by URCCC 9.04(C), his right to do so is balanced against his obligation to disclose the witnesses he intended to call at trial, including those who by the exercise of due diligence may [have] become known[] to the defendant or defendant s counsel. The record must contain evidence that the defendant committed a discovery violation to obtain a tactical advantage before exclusion becomes the appropriate sanction. Willard certainly knew about the witness s involvement in the case. The witness gave a very short written statement that Investigator Boggs memorialized in his notes. The problem was that Willard s lawyer had only recently located the witness and disclosed his intent to call him as a witness. Willard s lawyer said that he had not been able to find the witness. The witness s subsequent testimony revealed that he had not been in contact with Willard, and there were reasons that he may have been difficult to locate. The prosecution was equally aware of the witness s involvement in the case. Based on the evidence that existed at the time of the circuit judge s ruling, it was an abuse of discretion to assume that Willard or his lawyer must have been in contact with the witness earlier, or otherwise knew how to contact him. Because there was no evidence that Willard s late disclosure of the witness was motivated by a desire to obtain a tactical advantage at trial, the circuit court erred when it limited the witness s testimony. The victim s credibility was crucial, and the witness s excluded testimony could have diminished her credibility. Under the totality of the circumstances, Willard was prejudiced by the circuit court s improper exclusion of the testimony at issue. Thus, the case is reversed and remanded for a new trial. Issue 2: Jury instruction Willard argues that the circuit court erred by give instruction S-6 over his lawyer s objection. Instruction S-6 stated that the uncorroborated testimony of a sexual battery victim alone is Page 19 of 20

20 sufficient to sustain a conviction for sexual battery where it is consistent with the circumstances. Willard argues that instructing the jury on that principle operated as an improper comment on the evidence. In a previous case, the Court upheld a trial court s decision to give a practically identical instruction, stating that the instruction in that case was not a comment on the evidence. The previous decision is binding precedent in Mississippi, although the petition for writ of certiorari in that case is still pending at this time. In the event that a similar instruction becomes an issue on remand, the parties and the circuit court should be aware of any developments in that case. CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION Judge Carlton DISSENT WITHOUT SEPARATE OPINION Presiding Judge Griffis and Judges Barnes and Wilson Page 20 of 20