Kumar individually and d/b/a Holiday Inn of Columbus, Savage and Savage v. Loper, No. 2009-CA-02037-COA
Plaintiff filed a complaint alleging sexual harassment in the workplace and received a default judgment. In reversing the default judgment for Plaintiff, Court found that where Plaintiff receives a letter from defense counsel notifying him of intent to defend claims, prior to the filing of a complaint, the defendants are entitled to three days notice of the hearing on default judgment even where no contact was had with defense counsel after filing of the complaint except for defense counsel notifying Plaintiff that he would not be representing defendants.
Court relied on comment to Rule 55: “The purpose of [the notice requirement] of Rule 55(b) is…to protect those parties who, although delaying in a formal sense by failing to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear purpose to defense the suit.”
The letter from the defendants notifying plaintiffs of an intent to defend claims was enough to entitle defendants to notice of the hearing of the default judgment.
Yarbrough v. Patrick, No. 2010-CA-000391-COA
A suit where a mother alleged daughter had obtained title to assets by abuse of a confidential relationship. Court of Appeals affirmed chancery court’s judgment in favor of daughter. A confidential relationship is like a fiduciary relationship and it “arises when a dominant, overmastering influence controls over a dependent person or trust justifiably reposed.”
Court found that the confidential relationship must exist at the time gifts are made. In this case, the evidence showed the gifts were made several years prior to when mother alleged the confidential relationship existed.
Court also found that the clean hands doctrine prevented mother from asserting rights to assets against daughter where mother testified she gave the assets to her daughter to conceal the assets from a governmental agency (Medicaid) in order to obtain benefits to which was was not legally entitled.
Crosthwait v. Southern Health Corporation of Houston, Inc. D/B/A Trace Regional Hospital and Marcia Morgan, No. 2010-CA-00526-COA
Plaintiff fell and broke her hip while being assisted from the shower to her bed. She sued the hospital and the nurse who was assisting her. Plaintiff couched her claim as one for ordinary negligence rather than malpractice and defendant sought summary judgment because Plaintiff failed to offer presuit notice, consult an expert prior to filing suit and failed to support her claim with expert testimony. Chickasaw County Circuit Court granted summary judgment.
Despite Plaintiff’s claims to contrary, the Court of Appeals found that Plaintiff’s claim arose in the course of professional medical services. The selection of a proper stool in the shower and whether the floor needed to be dry are questions giving rise to malpractice and expert testimony is required. Summary judgment was affirmed.
Osborne v. Neblett, Real Estate Investor/Developer and Williams, Attorney and Trustee for G. Rives Neblett, No. 2009-CP-01312-COA
Section 89-1-55 requires three weeks between first publication and the foreclosure sale. Failure to comply with the statute’s publication requirements renders the foreclosure sale void. Court of Appeals found foreclosure to be void where sale took place just sixteen days after first publication.
Tennessee Properties, Inc. v. Larry Gillentine, No. 2010-CA-00376-COA
The three-year statute of limitations applies to actions for wrongful or fraudulent foreclosures. S. Land & Res. Co. v. Dobbs, 467, So.2d 652 (Miss. 1985). Because the substitute trustee’s deed was not included in the record, the Court of Appeals would not rule on whether the sale did not comply with the terms of the deed of trust. Aware of the omission in the record, TPI filed a motion to modify the record to include the substituted trustee’s deed, but failed to submit a copy of the deed to the clerk of the chancery court for certification as required by Rule 10(e) of the Mississippi Rules of Appellate Procedure, and the motion was dismissed.
Also, the doctrine of concealed fraud does not apply to matters of public record. Where an alleged fraudulent conveyance of real property is recorded and available to the public, there can be no concealed fraud preventing the running of the statute of limitations.
Finally, even though a case may be weak or light-headed that is not sufficient to label it frivolous pursuant to Rule 11(b).
- Jake Adams