Panter Law Firm, PLLC

Some basics about restrictive covenants on land

Sun, 17 Nov 2024 20:21:14 GMT

Interpreting restrictive (protective) covenants

On November 14, 2024, the Mississippi Supreme Court rendered its opinion in Smith v. Brockway and summarized some of the legal principles applicable to restrictive (protective) covenants on land.

1. To “run with the land,” a covenant must (1) show an intent to create such a covenant, (2) show privity of estate between the covenanting parties, and (3) touch and concern the land.

2. Additionally, to ascertain the meaning, purpose, and intent of restrictive covenants, their language should be read in its ordinary sense, considering the entire document and the circumstances regarding their formulation.

3. The intention of the parties, as shown by the agreement, governs and is determined by a fair interpretation of the entire text of the covenant.

4. Courts generally disfavor restrictive covenants, so the Court views their construction more strongly against the person seeking the restriction and in favor of the party resisting it.

Panter Law Firm, PLLC
7736 Old Canton Road, Suite B
Madison, MS 39110
601-607-3156

Easements by necessity

Thu, 24 Oct 2024 22:05:58 GMT

How much necessity is enough?

On October 15, 2024, the Mississippi Court of Appeals issued its opinion in Word v. U.S. Bank . The question in that case was whether U.S. Bank was entitled to an “easement by necessity” across the land owned by William Word.

The background facts

Word and U.S. Bank own adjoining parcels of land that were once part of the same larger tract of land owned by Zeno Griffin.

The parcel that Word now owns was severed from Griffin’s larger land tract in 1996. Later, Word purchased that parcel in 2016.

The parcel that U.S. Bank now owns was severed from Griffin’s larger land tract in 1997. That tract became “landlocked” at that time with no direct access to a road, the nearest of which was a state highway. U.S. Bank later acquired that parcel in 2019.

U.S. Bank filed suit against Word and asked that the chancery court rule that U.S. Bank was entitled to an easement by necessity across Word’s land. Such an easement would then give U.S. Bank access to the highway. (Note: Easement by necessity is sometimes referred to as easement by implication.)

The Chancery Court decision - - U.S. Bank gets an initial victory

Following his analysis of the parties’ evidence and relevant case law, the chancellor held that U.S. Bank had sufficiently proved its entitlement to an easement by necessity across Word’s property. As a result, the chancellor granted U.S. Bank’s requested relief.

Aggrieved, Word appealed.

The Court of Appeals sees it differently

In its opinion, the Court of Appeals began by explaining when an easement by necessity will exist:

“An easement by necessity arises by implied grant when a part of a commonly owned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing on the lands of another.”

“An easement by necessity requires proof that:

(1) the easement is necessary;

(2) the dominant and servient estates were once part of a commonly owned parcel;

(3) the implicit right-of-way arose at the time of severance from the common owner.

To satisfy this burden, the plaintiffs must show that they possess no other means of access to their property.”

"dominant estate" refers to the property that would benefit from an easement over the land of another, and the term "servient estate" refers to the property over which the easement would run.)

The Court of Appeals proceeded to explain:

“[O]ne who sells a parcel of land to another which is wholly surrounded by the other lands of the seller, impliedly grants a right of way to the interior lot so sold over the exterior lands retained. . . . And when one sells interior lands surrounded in part by the other lands of the seller and in part by the lands of strangers, the implied grant of a way to the interior land exists over the exterior lands of the seller.”

The facts were that Word’s land had been severed from the larger tract of the seller Griffin before U.S. Bank’s land had been severed from the same larger tract.

Thus, as the seller of the U.S. Bank tract, Griffin impliedly granted a right of way to the buyer of that tract across the remainder of Griffin’s land. Griffin could not, however, grant the buyer of that tract a right of way over Word’s land.

Panter Law Firm, PLLC

7736 Old Canton Road, Suite B

Madison, MS 39110

601-607-3156

Beneficial Ownership Information (BOI) Requirements and FinCEN IDs

Mon, 21 Oct 2024 21:11:50 GMT

The government wants to know more about your business.

Beginning January 1, 2024, certain types of business entities in the United States must report beneficial owner information (BOI) through the Financial Crimes Enforcement Network (FinCEN), an arm of the United States Department of the Treasury.

If your company was created prior to January 1, 2024, you will have until January 1, 2025, to report the BOI. Individual or beneficial owners can apply to FinCEN to receive a unique identification number that can be reported instead of providing more detail pursuant to a Beneficial Ownership Information Report (BOIR) to FinCEN.

Panter Law Firm, PLLC

7736 Old Canton Road, Suite B

Madison, MS 39110

601-607-3156

Tax sales - two ways to buy

Fri, 11 Oct 2024 16:02:38 GMT

County Tax Sales and State Patents

When taxes are delinquent, the Chancery Clerk of the County will advertise the property for sale. When the date of the sale comes, two things can happen.

First, someone will bid on the property and will become the buyer.

Second, if there is no successful bid, the property will be “struck off” to the State of Mississippi.

In either situation, the primary concern is the same - - was the original tax sale/striking off to the State done following the law? If not, the subsequent buyer remains exposed to an action by the original owner to set aside the sale/striking off until a statute of limitation has run.

County Tax Sales

If the property was bought by someone at a County tax sale, then if no one redeems the property within two years by paying the back taxes and interest, the buyer gets a Tax Title from the County. At that point, if the buyer (or a subsequent buyer) begins occupying the property, then after another three years, any suit to set aside the tax sale is time-barred. ( Note : occupation by a buyer’s tenant is sufficient.)

Striking off to the State

If no one bids at the tax sale, the property is struck off to the State. After the two-year redemption period passes, someone can buy the property from the State and receive a Tax Patent.

At that point, if the buyer of a Tax Patent (or a subsequent buyer) begins occupying the property, then after another two years, a suit to set aside the tax sale will be time-barred. (Again, occupation by a buyer’s tenant is sufficient.)

Pros and cons of each approach.

If the person acquiring the property wants to renovate and lease it, the Tax Patent procedure may be preferable. By going this route, the buyer gets (i) property as to which the two-year redemption period has already expired and (ii) a shorter statute of limitation for someone to set aside the tax sale (two years instead of three).

On the other hand, a buyer at a County tax sale (i) has to wait two years to get a Tax Title from the County and (ii) remains exposed to a three-year statute of limitation on an action to set aside the tax sale.

In addition, a buyer at a County tax sale has to wait two years before getting possession of the property. A buyer via Tax Patent, however, is entitled to possession at that time.

Finally, a buyer at a County tax sale will usually pay less to buy the property than the buyer would pay for a Tax Patent from the State, as the price the State wants takes into account the value of the property, whereas the County tax sale is based on the amount of taxes due and a small fee.

Panter Law Firm, PLLC

7736 Old Canton Road, Suite B

Madison, MS 39110

601-607-3156

Causation clarified - in fact and in law

Sun, 28 May 2023 19:38:53 GMT

How causation in fact and in law differ

On March 7, 2023, the Mississippi Court of Appeals issued its Opinion in Smith v. Minier . In doing so, the Court sought to clarify the law on the issue of causation.

Facts of the Case

On April 2, 2013, Mr. Smith was driving a truck eastbound on Interstate 10 in Jackson County when he lost control of his truck. Before Mr. Smith and his passenger could get out of the truck, it was hit from behind another tractor-trailer.

An ambulance took Mr. Smith to Singing River Hospital in Pascagoula, where a doctor prescribed the pain medication Lortab (which contains Tylenol) and discharged him that same day.

There was a dispute as to the scheduled dosage of the prescription. The doctor testified that the medication was to be taken “every six hours, as needed.”

An expert witness later testified that Mr. Smith’s medical chart directed a schedule of “one to two tablets every four hours.”

Mr. Smith’s discharged summary directed “one tablet every six hours.” Mrs. Smith followed a schedule of “two tablets every six hours,” following “the prescription from the bottle.”

Within six days, Mr. Smith had taken 56 Lortab tablets and was suffering from adverse symptoms. An ambulance took him to Sacred Heart Hospital, where it was found that he was suffering from “acute fulminant liver failure secondary to Tylenol toxicity.”

The doctors stabilized him over the course of a week. Once Mr. Smith was discharged, Mrs. Smith retrieved a second quantity of Lortab.

Four days later, Mr. Smith returned to Sacred Heart, where a liver biopsy revealed “acute Tylenol toxicity with liver failure.” He was again stabilized and discharged.

A few months later, he went to the University of Alabama at Birmingham hospital. There, Mr. Smith developed acute respiratory failure but ultimately died from acute chronic liver failure.

Jackson County Circuit Court Proceedings

On September 8, 2015, Mrs. Smith filed “a complaint requesting damages for pain and suffering on the basis of negligence and personal injury.” The trial court granted the defendants’ motion for partial summary judgment on April 2016, 2018, and it dismissed Mrs. Smith’s claim for relief due to pain and suffering. Her personal injury claim was settled out of court.

Mrs. Smith petitioned for interlocutory review to the Mississippi Supreme Court but was denied on October 25, 2018.

Mrs. Smith then, on April 30, 2021, “moved for the trial court to reconsider its partial summary judgment order.” On May 24, 2021, the defendants requested that the trial court deny this motion.

On October 21, 2021, “the trial court entered its final judgment in favor of the Defendants,” which Mrs. Smith appealed.

Appellate Court Proceedings

On March 7, 2023, the Mississippi Court of Appeals reversed the trial court’s order granting partial summary judgment and remanded the order for further proceedings.

Central to the court’s decision to reverse and remand the trial court’s order is the distinction between causation in the context of fact and causation in the context of law.

Mrs. Smith argued that the “the trial court’s grant of partial summary judgment in favor of the Defendants should be reversed because (1) the trial court applied the incorrect foreseeability (legal clause) standard; (2) a genuine issue of material fact exists as to foreseeability; and (3) Mr. Smith's use of pain medication was not an intervening cause.”

According to Civil Procedure Rule 56(c), the trial court is to grant summary judgment if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact,” where “[a] fact is material if it tends to resolve any of the issues properly raised by the parties.”

To then “withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim,” and “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.”

The court noted that, “[t]o succeed on a negligence claim, a plaintiff must show the following five elements: (1) duty, (2) breach, (3) cause in fact, (4) legal cause, and (5) damages.” However, the court notes that “Mississippi courts have at times condensed these five elements to four by combining the cause in fact and legal cause elements” into the term ‘proximate cause’.

Two elements of causation.

To address this ambiguity, the court delineated “two separate elements” of causation: “(1) but-for causation (or cause in fact) and (2) proximate causation (or legal cause), which includes foreseeability.”

With respect to cause in fact, “the plaintiff must show that ‘but for the defendant’s negligence, the injury would not have occurred.’”

With respect to legal cause, “the plaintiff must show that the injury ‘is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act.”). The court then notes that the “damage to the plaintiff must fall within the zone of foreseeability that the actor reasonably should have known would result from its conduct.”

The court concluded that, “in regard to foreseeability, whether an event is so unusual or improbably that it is unforeseeable by the negligent actor is a question of fact that should be left for the jury, as it turns on whether another person’s actions constitute a superseding intervening cause that breaks the chain of causation.”

The defendants argued that Mr. Smith’s “abuse of pain medication was unforeseeable,” as was his subsequent liver failure. However, considering three alleged prescriptions and conflicting dosage instructions therefrom, as well as the expert testimony as to “how common it is for patients to inadvertently take more pain medication than they should, resulting in unintentional liver failure,” the court concluded:

1. That the foreseeability of Mr. Smith’s misuse of the prescribed medication “is a question of fact for the jury to determine.” Moreover, the court concluded that his use and “whether this action was an intervening or superseding cause of a genuine issue of material fact that should have been resolved in favor of Smith because it was unclear whether he intentionally took more pills than prescribed.”

2. Considering the aforementioned expert testimony, the court concluded that “[l]iver failure caused by pain medication prescribed by a medical physician is not outside the zone of foreseeability of an automobile accident,” making Mr. Smith’s death a question of fact for the jury, as “a reasonable juror could determine that the Defendants should have foreseen that an injury would require medication and that an adverse reaction to that medication could occur.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Qui Tam Actions - Whistleblowers

Fri, 23 Dec 2022 22:08:59 GMT

False claims submitted to the United States

The Federal False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733, is a federal statute that was originally ratified towards the end of the American Civil War in an attempt to curb defense contractor fraud that took place throughout the conflict. The FCA has been amended several times throughout its existence, but the essence of the act has stayed the same throughout – to ensure that fraud does not go without penalty. To understand the FCA and what it does, we must first understand its target.

The General Purpose of the Act

The qui tam provision of the False Claims Act is the primary statutory authority under which qui tam lawsuits are brought. The FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the federal government. This Act requires an individual or entity that violates this provision to possess an intentional knowledge of the falsity of the claim, otherwise known as the “mens rea” to submit the fraudulent claim.

Under the False Claims Act, qui tam (which translates as "in the name of the king") allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the United States Government. Similar to sheriffs in the wild west deputizing citizens, the qui tam provision allowed private citizens to intervene with observed or suspected corruption within their workplace.

Over the years, government agencies have developed substantially and are much more efficient in launching these probes themselves, causing qui tam statutes to be less frequent, but they still played their role. In 1987, during the height of the Cold War, the government brought 341 False Claim Act actions, with only 30 being qui tam suits filed by realtors.

In 2009, Congress broadened the False Claims Act by passing the Fraud Enforcement and Recovery Act (FERA) amendments, leading to a resurgence in qui tam filings, with roughly 600-800 new qui tam cases coming forward annually.

Persons who bring forward these actions, often called “whistleblowers” by the general population, are known as “relators” by the legal community. A whistleblower is an individual, usually an employee of a company/government agency, that discloses information to either the public or a higher authority about any wrongdoing within the organization, be it corruption, false claims, etc. These individuals can be either internal to the organization or external - usually consisting of media, higher government officials, or the police.

To summarize, the FCA allows whistleblowers to take action and report fraud to help the government recover funds, and in return, the law sets rewards and protections for whistleblowers as an incentive. In a qui tam action, a relator brings an action against a person or company on the government's behalf if the elements required for such an action exist.

The Elements Necessary for a Relator to File a Qui Tam Action

For a qui tam action to be initiated, the relator must file the complaint in the United States District Court. This complaint must be filed in camera and must remain under seal for at least 60 days. During these 60 days, all information that is found within the complaint must be kept confidential from all other parties, even the defendant. The relator must also serve a copy of the complaint, as well as a written disclosure statement that details all pertinent information that the relator has, upon the United States Government.

Once this is completed, the United States is granted a mandatory 60-day period to investigate the allegations of the relator and determine whether to intervene in the lawsuit and bear the obligation of the litigation. The 60-day period is not a set determinant, as it can be extended upon a showing of "good cause," which tends to be granted more copiously.

The Option of the Government to Intervene

After this investigatory period takes place, the government has three options that it may decide to take. It may (1) intervene in the case, (2) decline to intervene, or (3) move to dismiss the case.

(1) Intervene in the case

If the government decides to intervene in the case in question, it assumes primary responsibility for the litigation of the suit, with the relator remaining a party to the action. The United States retains the option to restrict the relator’s role upon a showing of undue delay or another similar manner. This means that the relator may perform certain functions within a trial, but the United States maintains the right to restrict the scope or length of whatever function it grants to the relator. When the government intervenes in a qui tam action, the relator is typically entitled to between 15-25% of the proceeds recovered via the action, as well as reasonable expenditures garnered and attorney’s fees.

(2) Decline to intervene

The government also may decline to intervene in the action, leaving the relator with the heavy lifting of the suit. If the government declines to intervene, the relator retains the right to conduct the action on their own, where they will have the primary responsibility for the litigation. Despite the relator carrying the primary responsibility, the United States still retains a substantial amount of leverage to influence the suit.

Although not a formal party to the suit, the United States still has the authority to require both parties to provide copies of all pleadings that were filed in the present action upon its request, as well as copies of all depositions transcripts. Despite the United States initially declining to join the suit, the court may, “without limiting the status and rights of the person initiating the action,” allow the United States to intervene in a qui tam action upon a showing of “good cause.” Lastly, some courts have permitted the United States to veto a proposed settlement despite electing to not intervene in the case initially.

(3) Move to dismiss the cas e

Finally, the government has the option to move to dismiss the qui tam lawsuit. The FCA provides that the government maintains the option to dismiss a qui tam claim despite the objections of the relator so long as the relator has been informed by the government of the filing of the motion to dismiss and the court has afforded the relator with an opportunity for a hearing on the motion. The FCA is silent on the nature of the hearing required, the government’s burden in seeking a dismissal (if any burden even exists), and what a court must consider in evaluating the motion in question. There is much perplexity within the legal system about which standard applies, often with different Circuit Courts providing different standards.

“Valid Government Purpose” Standard. The Ninth and Tenth Circuits apply a stringent standard, sometimes referred to as the Sequoia Orange standard. This standard employs a multi-step analysis. The first step would have the government identify a “valid government purpose” for the dismissal. After this, the government would need to establish that there is a “rational relation” between dismissal and achievement of the identified purpose. If the government can meet this burden, then the burden shifts to the relator, who would need to demonstrate that the “dismissal is fraudulent, arbitrary and capricious, or illegal.”

“Unfettered Right to Dismiss” Standard. The DC Circuit Court has held that under § 3730(c)(2)(A), the government has an “unfettered right to dismiss an action.” Under this standard, the relator is afforded the hearing only to provide a formal attempt to convince the government to not end the case. While this standard is much more lenient in favor of the government, the DC Circuit did leave the possibility to deny a government motion to dismiss at their discretion upon a showing of “fraud on the court.”

Federal Rules of Civil Procedure Standard. The Third and Seventh Circuits offer another position – this one rooted in the Federal Rules of Civil Procedure (FRCP) 41. The courts have held that where the government seeks dismissal before the defendant has answered the complaint, the relator is allowed a prospect for a hearing, and a judicial inquiry is not required. FRCP 41(a)(1). When the government decides to seek dismissal after the defendant has responded, the hearing could “serve to air what terms of dismissal are ‘proper.’” FRCP 41(a)(2).

Potential awards to the Relator

A defendant that is found liable under the False Claims Act will be liable under § 3729 to pay treble damages, a statutorily enacted penalty ranging from $5,000 to $10,000, the government’s litigation costs, and the relator’s expenses, costs, and attorneys’ fees. The court may reduce its damages award if the defendant makes a prompt disclosure and provided full cooperation, but it cannot lower damages to less than double the damages incurred.

§ 3730(h) holds a defendant liable for retaliation towards a relator and requires the defendant to pay the whistleblower's attorney's fees, the costs of litigation, and double the amount of “back pay, interest on back pay, and compensation for special damages sustained as a consequence” of the retaliation.

When the False Claims Acts action triumphs, relators are eligible to a share in the takings of up to 30%. If the government did not participate in the litigation, then the relators are entitled to a finder’s fee that ranges from 15%-25%, which can be reduced to no more than 10% when their claim was based on what is primarily public information. In some scenarios, the relator can be entitled to attorney’s fees, expenses, and costs of litigation, but may be denied any award if they were a participant in the underlying fraud.

If the defendant succeeds in a False Claims Act action, the court may award the defendant their attorneys' fees and expenses if it concludes that the action was brought in a frivolous manner or for harassment. The appropriate test for determining whether attorneys’ fees and expenses should be awarded is similar to most federal fee-shifting analyses. Courts tend to only award defendant attorneys' fees and expenses in situations where the allegations are meritless, without foundation, or when there was no factual support or reasonable chance that could leave room for success.

Overall, qui tam actions provide a means to penalize entities that violate the Federal False Claims Act, incentivize individuals with knowledge of corrupt behavior to come forward, and provide a means for the government to dispel inefficiencies in its financial system and free up the availability of funds for areas where finances are more pressing.

An Example of Qui Tam in the Courts

One example of a qui tam action would Little v. Shell Expl. & Prod. Co., 690 F.3d 282 (5th Cir. 2012), which demonstrates the broad range of individuals that can bring suit underneath the qui tam umbrella. In this Fifth Circuit case, we see two relators file two qui tam suits against Shell in the Western District of Oklahoma (later to be transferred to the Southern District of Texas, finding its way into the scope of the Firth Circuit). Id. at *284. The two relators alleged that Shell had defrauded the U.S. Department of the Interior on the upside of $19 million. Id. They claimed that from 2001 to 2005, Shell intentionally divested the United States of royalties by taking unsanctioned deductions for expenditures to gather and stockpile oil on twelve of its offshore drilling platforms. Id.

At the time of the filing, the relators were both high-ranking officials in the Minerals Management Services (MMS). Id. The allegations against Shell came to light during the course of the official duties of the two relators, with this information being relayed to the MMS before the filing of the two qui tam actions. Id. It is undisputed that neither MMS nor any other federal agency ever pursued action against Shell with this information. Id.

Several years later, the two relators filed suit in the Oklahoma District Court, but the court ordered the case be transferred from Oklahoma to the Southern District of Texas, where the parties’ were consolidated. Id. at *285. The district court granted summary judgment to Shell, to which the relators appealed. Id. In this action, the United States urged, via an amicus curiae brief, that the court construe the False Claims Act to bar suits by government employees who discover transgressions under the scope of their official duties. Id.

In this action, the Fifth Circuit looked to existing case law to determine that a qui tam relator is suing as a partial assignee of the United States Government for damages. Id. The government attempted to argue that the employee-relators might not be able to retain litigation awards, as the only case law that existed at the time made no indication of federal employees being able to keep rewards from qui tam suits. Id. The Fifth Circuit rejected this contention, holding that the inquiry focuses on whether the injury in question can be redressed through litigation rather than on what the plaintiff may ultimately recover. Id. at *286.

The court notes that a “person” may bring suit, which seems to suggest that any person may bring a qui tam action regardless of their position. Id. The court explains that whenever a provision is definite and the statutory scheme is articulate and constant, there is no need for further examination as to the meaning of the statute. Id.

The Fifth Circuit then examines the context of the whole statute, which in this case, would be the five major parts of § 3730. Id. at *287. The court points to the presence of particular limiting provisions as informative in nature. Id. When Congress provides explicit exceptions in a statute, it does not trail that the courts can create others not specifically stated. Id. Taking everything into account, the Fifth Circuit held that "private persons" include filers of suits who are not the Attorney General, meaning that the “private persons” provision is interpreted on a broad standard. Id. at *289.

Little v. Shell Expl. & Prod. Co. demonstrates that the qui tam action can be sought by an expansive classification of persons, not just individuals that would constitute a "whistleblower." Private persons are entitled to undertake a qui tam action, so long as they have access to the necessary information and the requisite elements for a claim are present. So long as the individual bringing the action files suit and the government intervenes, the qui tam action should make its way through the court system with ease.

Written by Raynold Kinslow

www.craigpanterlaw.com

Protective Covenants and Foreclosures

Mon, 10 Oct 2022 15:49:57 GMT

Restrictive covenants

Today we write about Loblolly Properties LLC v. Le Papillon Homeowner's Assn. Inc., 2021-CA-00767-COA, 2022 WL 4478395 (Miss. App. Sept. 27, 2022), a recent case that landed in the Mississippi Court of Appeals. This case examines the relationship between covenants and restrictions following a foreclosure on a property.

Historical Context of Loblolly Properties

This dispute arises from the sale of land that stemmed from a foreclosure. To understand the facts of the present case, we must first look at the historical context of the land.

Chattel Group LLC (Chattel) initially owned thirty-five lots of the Le Papillion Subdivision. On March 10, 2008, Chattel executed a deed of trust to First State Bank (First State) and pledged twenty-two of its lots as security. In that deed, Chattel retained the “right to remain in possession and control of the property … [and] use, operate or manage the property.”

Later in December of 2008, Chattel filed a "Declaration of Covenants, Conditions and Restrictions" with the chancery clerk's office, which covered all lots Chattel owned, including those used for security. This declaration included homeowner association (HOA) fees for the use of common areas to help upkeep the subdivision. According to the covenants, non-payment fees would become a continuing lien on the property.

After Chattel failed to comply with the terms of the March 2008 deed of trust, on February 6, 2009, First State foreclosed on the lots pledged to it. Four years later, First State sued HOA regarding the validity of the covenants, which was ultimately settled out of court. In the final judgment, the chancery court held that the 2008 “Declaration of Covenants, Conditions, and Restrictions” was properly filed.

Present Context for Loblolly Properties

On January 31, 2018, First State sold Loblolly Properties LLC (Loblolly) ten of the lots that it had obtained via the foreclosure sale. The instrument of conveyance was a “Special Warranty Deed," which specifically provided that the conveyance and the warranty be subject to all Covenants and Restrictions of record.

After attempting to pay the dues that came with the land, Loblolly's attorney opined that when First State foreclosed, the title attained related to the date of the mortgage, which would so extinguish the covenants that were filed following the mortgage. On July 19, 2019, HOA filed a notice of lien against Loblolly's properties for unpaid dues, leading to the present action.

Loblolly filed a complaint in the Lamar County Chancery Court against HOA to avoid the lien and for slander of title. HOA filed a motion to dismiss. The chancery court denied Loblolly’s motion for partial summary judgment, finding that the clause in the special warranty deed clearly conveyed the property subject to the covenants and restrictions in question. Loblolly appealed.

Loblolly raised two issues on appeal: whether the covenants and restrictions were no longer “of record” following the foreclosure and non-binding, regardless of the language of the special warranty deed and whether First State’s foreclosure on the lots in question extinguished Chattel’s prior covenants and restrictions.

Whether the Covenants/Restrictions are No Longer “of Record”

The chancery court recognized that the covenants that post-dated the deed of trust could have been extinguished via successive foreclosure. However, the chancery court found that the covenants and restrictions were valid and enforceable because the language in the special warranty deed specifically stated the conveyance was subject to all covenants and restrictions of record, to which the appellate court agreed.

First, it is undisputed that First State agreed to bind the property to the covenants, which, established by Chattel, specifically provided that they were intended to run with the land. Even if the covenants did not survive the foreclosure, First Bank later agreed that the covenants were considered valid, enforceable, and bound the lots it held, which was shortly followed by a sale to Loblolly.

Second, Mississippi law states that instruments that are properly recorded give constructive notice to all who deal with property. The rule is that, whatever will put a party upon inquiry if pursued with ordinary diligence and understanding, would lead to knowledge of the requisite fact, its notice of it. This is furthered by the rule that a duty is imposed on a purchaser to examine all deeds and conveyances previously executed and recorded if such conveyances affect the title in question.

Lastly, deeds are construed like contracts, meaning that they are to be considered as a whole and the intent of parties is to be gathered from the plain and unambiguous language contained therein. Upon looking at the "four corners" of the document, the court must construe what is clear and unambiguous as is stated in the document. Beyond that, the court holds that it is necessary to construe the documents as a whole, and the intent of the parties may be gathered from the plain and unambiguous language therein.

Overall, the court held that the special warranty deed conveying the property from First State to Loblolly clearly and unambiguously stated the conveyance in question would be subject to any and all covenants and restrictions of record. The court held that Loblolly could have discovered the covenants on the lots through minimal diligence and that the chancery court did not err in finding that the terms of the special warranty deed bound Loblolly to the covenants in question.

Whether the Covenants and Restrictions were Extinguished Upon Foreclosure of the First State Mortgage

This is an instance of first impression for the Mississippi courts. On appeal, Loblolly contends that the December 2008 covenants and restrictions did not bind the lots in question and contends that Chattel could not impair the property that it had given as security with a successively filed declaration without First State’s consent.

Encumbered Indeed

The court first discussed whether the lots pledged were indeed encumbered by the declaration that was filed after the deed was executed. First, the court points to Merchants and Farmer’s Bank v. Pool Brothers, 140 Miss. 799, 106 So. 627, 629 (1926), which established the general principle that the holder of security must give consent to any action by the grantor that would lessen the value of the collateral property.

The court held that Loblolly presented no evidence that the covenants and restrictions imposed by Chattel impaired the property in any way. Thus, the court reasoned that Chattel's failure to obtain permission from First State before creating the covenants did not bar the covenants from attaching to all of Chattel's property.

It has been shown that there was intent to create said covenant, that there was privity of estate between the creator of the covenants and the person burdened by it, and that the covenant must "touch and concern" the land. Thus, the covenants ran with the land.

Extinguished by Foreclosure?

Next, the court had to determine whether or not the covenants were extinguished by First State’s foreclosure. The court, relying on Hearn v. Autumn Woods Off. Park Prop. Owners Ass'n, 757 So. 2d 155 (Miss. 1999), reiterated the rule that an intervening tax sale does not extinguish an easement that had increased the value of the property. A tax sale would severe a restrictive covenant only because of “negative” ownership

Here, the court held that the easements created by the covenants in question were used to maintain the common areas and further development, which in turn added value to the land. This benefitted the owner, thus meaning that the covenants which ran with the land were not extinguished by the intervening tax sale.

The ruling in Hearn also noted that most jurisdictions have held that an “easement appurtenant” is not extinguished by a tax sale. This specific type of easement is an easement that runs with the land, thus demonstrating that this easement appurtenant is not extinguished by the foreclosure sale.

The court holds in Diamondhead Country Club and Prop. Owners Assn., Inc. v. Peoples Bank, 296 So. 3d 651 (Miss. 2020), reh'g denied (June 11, 2020), that a personal covenant is extinguished by foreclosure if it is not included in a deed of trust, but covenants that run with the land are not. Chattel's covenants ran with the land and were attached prior to the foreclosure.

Conclusion

The Court of Appeals of the State of Mississippi affirmed the judgment of the chancery court that Loblolly's lots were bound by the declaration of covenants and that the HOA was entitled to summary judgment. First State agreed that the property was bound by the covenants after foreclosure. The court further held that the restrictive covenants did apply to Loblolly's lots and were not extinguished by First State's foreclosure.

Panter Law Firm, PLLC

601-607-3156

Scrivener errors

cpanter@craigpanterlaw.com (Craig Panter) — Sun, 02 Oct 2022 20:27:36 GMT

Drafting mistakes in deeds

Effective July 1, 2022, Section 89-5-8 of the Mississippi Code has been amended to add more specificity to the process of filing an affidavit of a scrivener’s affidavit.

The statute previously read, in part:

The affidavit of scrivener's error shall be executed and acknowledged by the affiant and verified upon oath or affirmation before a notarial officer, and shall be recordable in the land records in the office of the chancery clerk in the county where the real estate is situated.

The amendment adds the following additional requirements:

The affidavit shall recite:

(i) the name and Mississippi bar number of the affiant attorney,

(ii) the instrument containing clerical error, and

(iii) a statement that the affiant is in good standing with The Mississippi Bar, is licensed to practice law in the State of Mississippi, and that his or her license is active at the time of verification or affirmation.

Any affidavit of scrivener's error recorded that is not executed by an attorney licensed to practice law in the State of Mississippi, and who prepared any document in the chain of title to the subject real property, regardless of the date of recording shall be void.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Change to obtaining letters of administration

cpanter@craigpanterlaw.com (Craig Panter) — Sun, 02 Oct 2022 20:03:03 GMT

Choosing the right county

Effective July 1, 2022, the Mississippi Legislature changed the rules regarding which chancery court can issue letters of administration.

Previously Section 91-7-63 read as follows:

Letters of administration shall be granted by the chancery court of the county in which the intestate had, at the time of his death, a fixed place of residence; but if the intestate did not have a fixed place of resident, then by the chancery court of the county where the intestate died, or that in which his personal property or some part of it may be.

As a result of the recent amendment, the statute now reads:

Letters of administration shall be granted by the chancery court of the county in which the intestate had, at the time of his death, a fixed place of residence. If the intestate did not have a fixed place of residence, then by the chancery court of the county where the intestate owned land. If the intestate did not have a fixed place of residence and did not own land, then by the chancery court of the county where the intestate died.

Thus, the revised statute provides a three-tier approach. The proper chancery court is the one located in:

1. the county in which the intestate had, at the time of his death, a fixed place of residence. If this does not apply, then,

2. the county where the intestate owned land. If this does not apply, then,

3. the county where the intestate died.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Mississippi's new Equal Pay law

cpanter@craigpanterlaw.com (Craig Panter) — Fri, 23 Sep 2022 20:44:35 GMT

Mississippi finally adopts equal pay laws

Effective July 1, 2022, Mississippi now has an Equal Pay Act to address differences in pay between men and women doing the same job.

The Act is so new that it has not yet been assigned Title, Chapter and Section numbers in the Mississippi Code. It can be found, however, on the Mississippi Legislature website under Laws of 2022, House Bill 770.

Here are some of the more significant provisions of the Act.

The general principle of equal pay

Under the Act, “no employer may pay an employee a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions.”

Now, the exceptions.

Notwithstanding the general principle, differences in pay are permitted if the reasons for it are any the following:

(a) A seniority system;

(b) A merit system;

(d) Any other factor other than sex.

The first three are easily understood. But, what does the fourth really mean?

Any other factor other than sex.

Mississippi’s Act states that “any other factor other than sex” includes, but is not be limited to, the following factors:

(i) The salary history or continuity of employment history demonstrated by the employee as compared to employees of the opposite sex in the same establishment;

(ii) The extent to which there was competition with other employers for the employee's services as compared to employees of the opposite sex in the same establishment; and

(iii) The extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment.

Remedies for a violation of the Act

An employee can enforce the Act in a civil suit in the circuit court in the county where the cause of action occurred.

If an employer is found to have violated the Act, the employee shall be awarded reasonable attorney's fees, prejudgment interest, back pay and costs of the action.

The statute of limitation for filing an action is two (2) years from the day the employee knew or should have known his or her employer was in violation of the Act.

An employer who is paying a wage differential in violation of the Act cannot reduce the wages of another employee in order to comply with the Act.

No employer may discharge, discriminate or in any way retaliate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of the Act.

The effect of the federal Equal Pay Act

The federal act impacts a claim under Mississippi’s Act in two significant ways.

First, if an employee brings a claim under the federal Act, a separate action may not be maintained under the Mississippi Act.

Similarly, if an employee brings a claim under the Mississippi Act and then later initiates a claim under the federal Act, the Mississippi action shall be dismissed with prejudice.

An employee who seeks relief under the Mississippi Act must first waive any right to relief under the federal Act. (Personal note: I have difficulty reconciling this part of the Act with the prior paragraph which clearly contemplates a suit under the Mississippi Act and a subsequent suit under the federal Act.)

Second, the Mississippi Act is similar to the federal Act. As a result, for any lawsuits under the Mississippi Act, published precedents of the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit and federal district courts embracing the circuit court in which any action under this act is pending, deciding cases under the federal Act shall be considered mandatory authority and shall be followed by the circuit court in which the action is pending, until there is a contrary ruling interpreting the Mississippi Act by the Mississippi Supreme Court or the Mississippi Court of Appeals.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Deraignment of title in land disputes

cpanter@craigpanterlaw.com (Craig Panter) — Mon, 19 Sep 2022 21:59:07 GMT

When may full deraignment be excused

There are many kinds of real estate disputes that turn into lawsuits. Some of the more common examples are boundary disputes, removal of clouds on title, adjudication of heirship and inheritance of land, and confirmation of tax sales.

Whenever a party files suit claiming an interest in land, that party is frequently required to deraign his title to the land.

What is deraignment of title?

Deraignment is the process of explaining how the plaintiff in a lawsuit obtained his title to the land. It often requires the plaintiff to begin with the original government owner of the land (often referred to as the “sovereign”). Then, each subsequent conveyance of the land is listed, ending with the conveyance to the plaintiff.

This can be expensive and time-consuming.

There are exceptions, however.

In Smith v. Overstreet , 38 So. 2d 923 (Miss. 1949), the Mississippi Supreme Court listed three situations in which full deraignment from the sovereign is not required. Those are:

1. When the plaintiff claims the land by adverse possession. In that situation, it is sufficient to show (a) an original conveyance from the sovereign and (b) adverse possession by the plaintiff for at least 10 years.

2. When the plaintiff claims the land as the result of a conveyance from the defendant.

3. When the plaintiff and defendant claim title through a common source. An example would be when the defendant claims to have inherited a 100% interest in land, but in fact the plaintiff and defendant were both heirs of the prior owner.

Practice pointer : When filing suit regarding title to land, consider whether an exception to deraignment exists before incurring the time and expense of a full deraignment.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Affirmative defenses – waiver and resuscitation

cpanter@craigpanterlaw.com (Craig Panter) — Mon, 12 Sep 2022 14:51:24 GMT

Raising and preserving affirmative defenses

Rule 8 of the Mississippi Rules of Civil Procedure requires that a party filing an Answer to a Complaint include any affirmative defense he has to the Complaint.

Affirmative defenses include, but are not limited to, accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

The same Rule applies to a party responding to a cross-claim or counterclaim.

As a general rule, the failure to include an affirmative defense in when responding to a claim will result in the waiver of that defense.

In addition, there are situations in which a party can waive an affirmative defense even if it was included in the party’s answer.

“A defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” MS Credit Center, Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006).

Conversely, it is possible to resuscitate an affirmative defense that was not raised in an answer.

In Stratton v. McKey , 298 So. 3d 999, 1006 (Miss. 2020), the Court permitted an affirmative defense of statute of limitation that was raised by a motion for summary judgment by Stratton when McKey did not advance a waiver theory at that time. In effect, McKey waived Stratton’s waiver.

Similarly, the Mississippi Supreme Court has refused to reverse a lower court ruling based on failure to plead an affirmative defense when the issue was tried in the lower court without objection at that time.

Best practice : If a party has an affirmative defense, include it in an answer and, if the defense would resolve all or a significant part of the case, file a motion and bring it on for hearing.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

www.craigpanterlaw.co m

Unlawful entry and search - Fourth Amendment

cpanter@craigpanterlaw.com (Craig Panter) — Fri, 09 Sep 2022 20:12:23 GMT

When can the police entry a home without a warrant?

On September 9, 2022, the United States Court of Appeals for the Fifth Circuit handed down its decision in Alcantara v. Jasso. In doing so, the Fifth Circuit addressed a claim for unlawful entry and search of a home.

The facts of Alcantara.

El Paso police officers Jose Rivas and Ricardo Villagran arrived at plaintiff Alcantara’s home after receiving a call that a “riot” was in progress at the residence.

Upon arrival, it became “very obvious” that there was no riot. Instead, E.R., Alcantara’s minor daughter, was in the backyard with seven of her friends celebrating Thanksgiving.

Nevertheless, Rivas and Villagran confronted the teens as three additional El Paso police officers, including El Paso police sergeant Marco Jasso, arrived at the scene.

Eventually, Rivas got into a scuffle with E.R., which resulted in E.R. allegedly sustaining injuries and being handcuffed.

A female officer searched E.R. and found a house key inside her bra. Jasso and Villagran later used the house key to unlock and enter Alcantara’s home.

Alcantara, who was bathing her two younger daughters, heard the officers’ voices and exited the bathroom to find the two men standing inside her home. She demanded they leave, and about five minutes later, the officers stepped outside.

A lawsuit is filed.

E.R. and Alcantara sued under 42 U.S.C. § 1983, alleging violations of their Fourth Amendment rights.

Specifically, E.R. alleged an excessive force claim, unlawful search and seizure claims, and an unlawful arrest claim.

In addition, Alcantara alleged an unlawful entry and search claim against Jasso and Villagran, contending that they did not have permission or a warrant to justify their intrusion into her home.

Despite the numerous claims, the only one raised before the Fifth Circuit was whether Jasso and Villagran were entitled to summary judgment on Alcantara’s unlawful entry and search claim. So, that is the only one discussed in this blog post.

The district court denies Jasso and Villagran summary judgment.

Jasso and Villagran took the position that “exigent circumstances” justified them entering Alcantara’s home.

Exigent circumstances will, in some cases, permit an entry and search without a warrant. Those circumstances include those in which officers reasonably fear for their safety, where firearms are present, or where there is a risk of a criminal suspect's escaping or fear of destruction of evidence.

The district court disagreed, hold that there were genuine disputes of material fact as to whether exigent circumstances existed. That fact would have to be resolved by a jury.

The Fifth Circuit affirms the district court.

The Court agreed with the district court that a jury would need to resolve Alcantara’s unlawful entry and search claim.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

www.craigpanterlaw.com

Duty to disclose hospital charges

cpanter@craigpanterlaw.com (Craig Panter) — Fri, 02 Sep 2022 21:06:20 GMT

Hidden charges in hospital bills

On August 31, 2022, the United State Fifth Circuit Court of Appeals handed down its Opinion in Henly v. Biloxi HMA. In doing so, the Fifth Circuit addressed Mississippi law on the duty to disclose information in the setting of hospital charges.

The facts in Henley

Henly sued Biloxi H.M.A. d/b/a Merit Health Biloxi (hereinafter “Merit”) for failure to disclose the fact that she would be charged a certain fee if treated at Merit’s facility.

Specifically, Henly alleged that Merit Health charges every emergency room patient that visits one of its facilities in Mississippi a surcharge.

The surcharges are not based on the individual services or treatments that a patient receives. Instead, Henly claimed, Merit includes a surcharge in the bill of every patient that is seen at the emergency room of its facility, in addition to the line-item charges for specific services provided.

Further, Henly alleged, Merit does not inform patients prior to treatment, either verbally or through signage, of the existence or amounts of the surcharges.

According to Henly’s complaint, patients like Henly are not aware that the surcharge will be added to their bills and Merit knows that patients are unaware of the surcharge.

Thus, Henly sought a declaratory judgment that the hospital had a duty under Mississippi state law to disclose the surcharge to patients prior to treatment.

The district court dismisses Henly’s suit.

Merit moved to dismiss Henly’s suit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This Rule allows a court to dismiss a complaint in situations where, even if all the facts alleged in the complaint are true, the law does not give rise to a claim for the plaintiff.

The district court held that Mississippi law did not create a claim for Henly because Merit had no duty to disclose the surcharge to Henly.

The Fifth Circuit reverses the district court’s ruling.

The Fifth Circuit began its analysis with the test required by Rule 12(b)(6).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

The Court then turned to Mississippi law on the duty to disclose facts in certain transactions.

“According to the Mississippi Supreme Court, in order to be liable for nondisclosure, a party must have had a legal duty to communicate a known material fact.”

“Thus, nondisclosure in itself, even if fraudulent, does not give rise to a legal claim. The party must have concealed something that he or she was legally required to disclose.”

The Fifth Circuit acknowledged that there was not Mississippi court decision directly on point with Henly’s situation. Yet, Mississippi decisions in other non-disclosure cases provided guidance.

For example, in Holman v. Howard Wilson Chrysler Jeep , two customers seeking to buy a new car were actually sold a demonstrator model that had been damaged in a wreck and repaired for a sum of $2,190.38 prior to the sale.

The Mississippi Supreme Court reversed a grant of summary judgment to the dealership, holding that the dealership might have owed a duty to disclose the repaired damage if knowledge of the damage would be material to the customers’ purchase of the automobile.

In Green Realty Management Corporation v. Mississippi Transportation Commission , the MTC purchased two pieces of undeveloped land from Green Realty as part of a road-widening project.

Only after construction began did Green Realty learn that the project would increase the flow of surface water onto its adjacent property.

The Mississippi Supreme Court held “if the state agency knew it would divert water flow, which would cause damage to property . . . and remained silent as to this fact, the agency suppressed material facts. Given that scenario, a material misrepresentation by silence was visited upon Green.”

From examining Mississippi case law, the Fifth Circuit found three requirements for a duty to disclose to arise under Mississippi law:

(1) a material fact;

(2) one party’s knowledge that the other is under a mistake as to the fact, and

(3) the other party’s reasonable expectation that it would be disclosed.

The Fifth Circuit concluded: “Applying the foregoing legal precepts, we think that the Mississippi Supreme Court would hold that Henly has sufficiently alleged facts that Merit had a duty to exercise reasonable care to disclose the surcharge.”

The case was then remanded to the district court for further proceedings.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

Rules of Land Boundary Disputes

cpanter@craigpanterlaw.com (Craig Panter) — Mon, 20 Jun 2022 17:18:00 GMT

Court rules to help resolve boundary disagreements

It is commonplace for neighbors to have disagreements about their land boundaries. Here are some of the rules the Mississippi Supreme Court has created to help solve those disputes.

1. “Where succeeding calls are readily ascertained and are as little liable to mistake, they are of equal dignity with, and may control, the first.”

What does that mean? Let us start with the term “call”.

In legal descriptions, a call is simply one part of a legal description. For example, “begin at the southwestern corner of the intersection of Rice and Johnson Roads, then run west 200 feet” is a call. That type of call is also called a “metes and bounds” description.

So, for example, if the first call in a legal description is ambiguous but the remaining calls are clear, the remaining calls can be used to clear up the first call.

Once I had to deal with a legal description that read “Begin at a point on the side of the road directly in front of my house.” That call is not exactly clear.

But, if the next call read: “Then run due east 200 feet along the road to the southwestern corner of the intersection of Rice and Johnson Roads,” you could determine that the beginning point was 200 feet west of the intersection.

2. “When monuments and distances are both given in deeds, the monuments control and the distances must be lengthened or shortened if necessary to prevent inconsistency.”

How does this Rule work? Assume a call in a deed said “begin at the southwestern corner of the intersection of Rice and Johnson Roads, then run due south 200 feet to a concrete post at the northwestern corner of the intersection of Johnson and Smith Roads.

However, the actual distance between those two intersections is 300 feet. In that case, the call has to be interpreted as running 300 feet, not 200 feet.

3. “The metes and bounds description in a deed control over the estimate of area, in determining what realty is conveyed by the deed.”

Suppose a deed had four calls, such as “Begin at the southwestern corner of the intersection of Rice and Johnson Road, then run south 200 feet, then run west 200 feet, then run north 200 feet, then run east 200 to the point of beginning,” being 1.5 acres.

Well, the actual area described by the calls is a little less that 1 acre. So, under this Rule, the area described by the calls is controlling, and the estimate of 1.5 acres is not.

4. “Where a conveyance of lots makes reference to a plat a copy of which is made a part of the conveyance, calls for course and distances may be controlled by the plat.”

Land is often subdivided into lots that are then shown on a plat. Assume a deed conveys lot 7, for example, and then tries to describe lot 7 by calls (or metes and bounds). If there is a discrepancy between the two, the plat will control.

There are more Rules that I intend to cover in a subsequent post.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

FMLA and the employee who does not come back

Sun, 24 Oct 2021 20:20:38 GMT

It is not uncommon for an employee to take extend leave under the FMLA and then, when the leave expires, decide not to return to work. If the employer has been paying the employee's health insurance during the leave, can the employer get that money back?

The answer is found at 29 C.F.R. § 825.213, one of the regulations that implements the FMLA. Summarized, the regulation states:

(a) An employer may recover its share of health plan premiums during a period of unpaid FMLA leave if the employee fails to return to work after the employee's FMLA leave entitlement has been exhausted or expires, unless the reason the employee does not return is due to either:

(1) The continuation, recurrence, or onset of either a serious health condition of the employee or the employee's family member, or a serious injury or illness of a covered servicemember, which would otherwise entitle the employee to leave under FMLA; or

(2) Other circumstances beyond the employee's control.

Examples of "other circumstances" beyond the employee's control are necessarily broad. They include, but are not limited to, situations as where a parent chooses to stay home with a newborn child who has a serious health condition; an employee's spouse is unexpectedly transferred to a job location more than 75 miles from the employee's worksite; a relative or individual other than a covered family member has a serious health condition and the employee is needed to provide care.

Other circumstances beyond the employee's control would not include a situation where an employee chooses not to return to work to stay home with a well, newborn child.

(3) When an employee fails to return to work for a reason covered by (a)(1) above, the employer may require medical certification of the condition.

(b) Under some circumstances an employer may elect to maintain other benefits, e.g., life insurance, disability insurance, etc., by paying the employee's (share of) premiums during periods of unpaid FMLA leave. If the employer elects to maintain such benefits during the leave, at the conclusion of leave, the employer is entitled to recover only the costs incurred for paying the employee's share of any premiums whether or not the employee returns to work.

An employee who transfers directly from taking FMLA leave to retirement, or who retires during the first 30 days after the employee returns to work, is deemed to have returned to work.

(d) When an employee elects or an employer requires paid leave to be substituted for FMLA leave, the employer may not recover its share of health insurance or other non-health benefit premiums for any period of FMLA leave covered by paid leave.

(e) The amount that self-insured employers may recover is limited to only the employer's share of allowable premiums as would be calculated under COBRA, excluding the two percent fee for administrative costs.

(f) When an employee fails to return to work, any health and non-health benefit premiums which this section of the regulations permits an employer to recover are a debt owed by the non-returning employee to the employer. To the extent recovery is allowed, the employer may recover the costs through deduction from any sums due to the employee (e.g., unpaid wages, vacation pay, profit sharing, etc.), provided such deductions do not otherwise violate applicable Federal or State wage payment or other laws. Alternatively, the employer may initiate legal action against the employee to recover such costs.

Panter Law Firm

7736 Old Canton Road, Suite B

Madison, MS 39110

601-607-3156

Arbitration between Client and Attorney

Mon, 12 Jul 2021 18:33:00 GMT

Arbitration

We previously wrote here about your ability to make the other side in a lawsuit pay your attorney’s fees, including lawsuits involving federal civil rights.

Today we write about a recent Fifth Circuit case styled Gallagher v. Vokey which involves a dispute between a client and his own lawyer over the issue of fees.

The facts of Gallagher

Edward Gallagher was a United States Navy Seal. In early 2018, Gallagher was faced with criminal charges brought by the United States Navy

Gallagher reached out to Vokey for representation because his firm was known in the SEAL community for providing counsel through United American Patriots (UAP).

While Gallagher was in custody, Vokey met with him twice, once on October 10, 2018 and again on October 13, 2018.

After some period of time, their professional relationship deteriorated, and Gallagher terminated Vokey’s representation. At that point, Vokey wanted to be paid for his legal work.

The parties’ engagement agreement.

Vokey stated that Gallagher signed an Engagement Letter when he met with him on October 13 (although the letter was dated October 11).

Gallagher said he had no recollection of ever seeing an Engagement Letter and never signed anything. He supported his statement by the fact that he did not meet with Vokey on October 11. Vokey responded by contending the date on the Engagement Letter was simply a typographical error.

Vokey and Gallagher sue each other

Since Gallagher refused to pay, Vokey sued to compel arbitration pursuant to the Engagement Letter.

Gallagher then sued Vokey, seeking a declaratory judgement that he did not owe Vokey fees and could not be compelled to arbitrate. The district court consolidated both cases and denied Vokey’s demand for arbitration based upon the date discrepancy and Gallagher’s lack of recollection of having signed the Engagement Letter.

Vokey appealed.

The Fifth Circuit reverses and remands

On appeal, the Fifth Circuit began with two questions: (1) whether there was a valid agreement to arbitrate between the parties, and (2) whether the dispute in question falls within the scope of that arbitration agreement.

The Court began by acknowledging that the “quantum of evidence required to prove or disprove the existence of an agreement to arbitrate is not entirely clear in this Circuit.”

Interestingly, the Fifth Circuit stated that “[t]he party resisting arbitration bears ‘the burden of showing that he is entitled to a jury trial.’”

(I say “interesting” because in almost all cases, the party attempting to invoke a contractual provision (here, Vokey) carries the burden of proving the existence and validity of the contract.)

Thus, “[t]o put the making of the arbitration agreement in issue, a party is required to unequivocally deny that he agreed to arbitrate and produce some evidence supporting his position.”

In the case before it, the Fifth Circuit held that the signed Engagement Letter, combined with Vokey’s and a witness’s sworn declarations attesting to having personally witnessed Gallagher sign the document, were strong evidence that the contract was genuine.

In response, Gallagher produced no evidence whatsoever. Gallagher’s statement that he had no recollection of having signed the Engagement Letter was not competent evidence that he did not sign it.

Finally, the Court held that the fee dispute was clearly within the scope of the arbitration provision.

So, the parties were required to arbitrated the fee dispute.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.co m

The post Arbitration between Client and Attorney appeared first on Panter Law Firm, PLLC .

Foundation damage

Sun, 09 May 2021 22:32:00 GMT

Foundation damage

In Mississippi, foundation damage (whether to a home or commercial building) is fairly common. It is often caused by a certain soil called “Yazoo clay.”

The clay’s composition is such that it expands significantly when wet and, conversely, shrinks significantly when dry.

For example, when wet, Yazoo clay can expand to the point that it is generating 25,000 pounds of pressure per square foot!

Yazoo clay is particularly present in central Mississippi, but there are other, similar, clay formations throughout Mississippi.

Anything built directly over these expansive clays can be damaged by its expansion and shrinking. But, the most costly damage is often foundation damage.

When a property owner suffers foundation damage, one of the first questions that arises is whether the builder has legal responsibility for the repairs.

In this post, we will address that question.

The common law remedy

The phrase “common law” refers to law made over the years (and often over the centuries) by courts, as opposed to statutes adopted by the legislature.

In Mississippi, a builder has a legal duty to owes a duty to construct a home in a workmanlike manner and to construct a home which is suitable for habitation.

Long ago, the Mississippi Supreme Court recognized that the duty requires a builder to inspect for, and take into account, the presence of Yazoo clay.

This duty can easily be extended to commercial buildings as well.

A builder that fails to do so has breached his duty and can be held liable for resulting damage to the foundation.

New Home Warranty Act

This Act is a series of statutes adopted by the Mississippi Legislature. As the name indicates, it applies to new homes and, therefore, does not apply to commercial construction.

Under the Act, and automatically as a matter of law, the builder of a new home gives a warranty that for “six (6) years following the completion date, the home will be free from major structural defects due to noncompliance with the building standards.”

Three notes:

First, the warranty extends for only six (6) years.

Second, the major structural defects must be the result of noncompliance with building standards.

In other words, it is not an absolute warranty that no defects will occur. The defects must be due to the builder’s noncompliance with the applicable building standards.

Third, the warranty automatically extends to subsequent buyers of the house (but is still limited to a total of six (6) years, regardless of the number of owners).

Matters of contract

A builder who undertakes to construct a building for someone in particular may very well have entered into a contract with that person.

If the contract addressed (directly or indirectly) the construction of a foundation, the builder might be liable under a traditional theory of breach of contract.

Statutes of limitation

As stated above, under the New Home Warranty Act, the warranty extends for six (6) years. If the builder does not give notice of the existence of the warranty to a buyer, the warranty extends until the builder does so.

With respect to a common law claim for breach of the duty to build in a workmanlike manner, as well as a claim for breach of contract, the statute of limitation is three (3) years. If the breach was one not readily ascertainable by the buyer, it may be possible to extend the time.

S. Craig Panter

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

www.craigpanterlaw.com

The post Foundation damage appeared first on Panter Law Firm, PLLC .

Qualified immunity and private employees

Sat, 08 May 2021 22:17:00 GMT

Qualified Immunity

We previously wrote here about the concept of qualified immunity in civil rights lawsuits. Often, qualified immunity will protect a government official in such suits.

Today we look at the question of whether qualified immunity extends to non-governmental employees. That question was recently addressed by the United States Court of Appeals for the Fifth Circuit in Sanchez v. Oliver .

The facts of Sanchez

Eli Gauna, Jr., took his own life while being held in the Bell County jail as a pretrial detainee. His mother, Kathy Sanchez, sued—among others—licensed clinical social worker Natalee Oliver, the mental health professional who evaluated Gauna and took him off suicide watch.

Oliver was an employee of Correctional Healthcare Companies, LLC (“CHC”), which contracted with Bell County to provide healthcare services, including mental healthcare, to inmates, juveniles, and pretrial detainees in the County’s custody.

Gauna asked to be placed in the infirmary, but Oliver instead took him off suicide watch and placed him among the general population. She advised him to continue taking his medication, to stay active, and to inform staff if his mood declined.

Two days later, Gauna committed suicide by hanging.

Sanchez files suit.

Sanchez sued, both individually and on behalf of Gauna’s estate, alleging causes of action against Oliver, CHC, and Bell County under 42 U.S.C. § 1983 for violating Gauna’s well-established constitutional right to be protected from a known risk of suicide.

Oliver moved for summary judgment, claiming qualified immunity, and arguing that there was insufficient evidence that she had acted with deliberate indifference towards Gauna.

Sanchez argued that Oliver, as an employee of a private, for-profit service provider, was not entitled to assert the defense of qualified immunity.

The magistrate judge recommended finding that Oliver was entitled to qualified immunity, had not been deliberately indifferent, had not acted unreasonably (relative to the deliberate indifference standard), and was entitled to summary judgment.

The district court adopted the magistrate’s report and recommendation, and granted summary judgment for Oliver.

Sanchez appealed.

The Fifth Circuit reverses.

At the outset, the Fifth Circuit noted there was no question that Oliver, as a medical professional treating a pretrial detainee on behalf of a governmental entity, was acting under color of state law for purposes of § 1983.

“As a private actor, Oliver may be liable for acting under color of state law under § 1983, but it does not necessarily follow that she may assert qualified immunity.”

In holding that Oliver was entitled to assert the defense of qualified immunity, the district court relied heavily on the Fifth Circuit’s ruling in Perniciaro v. Lea that two private mental health providers employed by the state through Tulane University were entitled to qualified immunity.

“However, the Perniciaro court took pains to emphasize that Tulane University was not systematically organized to perform the major administrative task of providing mental-health care at state facilities.”

By contrast, Oliver’s employer, CHC, was—according to its marketing materials—a major corporation “in the business of administering correctional health care services.”

In other words, Oliver’s employer was “systematically organized to perform the major administrative task of providing mental-health care at state facilities.”

The Fifth Circuit concluded: “After considering the historical tradition of immunity at common law around the time § 1983 was enacted and the policy considerations underlying qualified immunity, we agree with our sister circuits that Oliver—as an employee of a large firm systematically organized to perform the major administrative task of providing mental healthcare at state facilities—is categorically ineligible for qualified immunity.“

Even so, the district court’s ruling could still be upheld if Oliver was not deliberately indifferent and, therefore, not liable under § 1983 for violating Gauna’s Fourteenth Amendment rights, since that finding could independently dispose of Sanchez’s Fourteenth Amendment claims.

Although the district court made such a finding, the Fifth Circuit concluded that it was error because there were genuine issues of material fact to be resolved by the factfinder.

S. Craig Panter

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Time to serve a summons

Thu, 25 Mar 2021 23:23:00 GMT

Serving the Summons

Pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure, a plaintiff is permitted 120 days in which to serve the defendant with the summons and complaint. Specifically, the Rule states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

What happens if the plaintiffs cannot find the defendant within 120 days?

If a plaintiff is unable to serve a defendant within 120 days, the plaintiff has three available options.

First, prior to the expiration of the 120 days, the plaintiff may file a motion pursuant to Rule 6(b) to extend the deadline. If the plaintiff does so, it need only show “cause” under Rule 6. The “good cause” standard in Rule 4 would not apply. Cross Creek Productions v. Scafidi , 911 So.2d 958, 960 (Miss. 2005).

The second option available to a plaintiff is to simply file a new complaint. Triple C Transport, Inc. v. Dickens , 870 So.2d 1195, 1200 (Miss. 2004). This option may not be available if the statute of limitation has expired.

If the plaintiff does not take either option one or two and the 120 days passes, the third, and final, option available to the plaintiff is to demonstrate “good cause” as required by Rule 4(h). Id .

To establish “good cause” the plaintiff must demonstrate “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Watters v. Stripling , 675 So.2d 1242, 1243 (Miss. 1996), citing Systems Signs Supplies v. United States Department of Justice , 903 F.2d 1011, 1013 (5th Cir.1990).

“The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner.” Copiah County School Dist. v. Buckner , 61 So.3d 162, ¶ 14 (Miss. 2011).

“To meet the burden of proof of good cause, the plaintiff must demonstrate that a diligent effort was made to effect timely service.” Id .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Social Security Benefits during Covid-19

Fri, 12 Mar 2021 17:55:00 GMT

If you were denied your Social Security Benefits during Covid-19.

Denied social security benefits?

Although it has been in place already, the Social Security Administration judges can host hearings by video or teleconference. This is important during the Covid era.

How does it work?

In order to get a hearing, you or your representative need to keep in touch with the administration. Let them know that you want your case heard as soon as possible in front of an Administrative Law Judge.

Hire Panter Law Firm, PLLC

We discussed this here , but I would like to reiterate the importance of:

A) Not giving up;

B) Exercising your right of appeal in front of an administrative law judge (having your day in court);

C) And hiring an attorney to assist you;

D) and also consider the fact that there are attorneys who can host teleconferences or video conferences from their office.

Why hire a lawyer?

A lawyer assists you with the procedure to get to the hearing in a timely fashion. The procedure requires paperwork and many documents. Also, the procedure requires some details along the way a lawyer can assist you with. Furthermore, a lawyer with experience in this area of law knows what needs to be done to adequately present your case before an ALJ (Administrative Law Judge). A lawyer with experience makes sure that you have your moment in court. These hearing can often be brief, therefore you should present your case as thoroughly and succinctly as possible. You don’t have to do this alone.

This is not legal advice, only information for those who may be interested in our assistance.

Call us at 601-607-3156 for assistance.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Age Discrimination and the CYA hire

Fri, 01 Jan 2021 20:14:00 GMT

Age Discrimination

We previously wrote here about claims for age discrimination in employment. As we explained:

When an employee brings an age discrimination claim under the ADEA based only on circumstantial evidence, federal courts employ the McDonnell Douglas three-step burden-shifting framework.

First, the employee must prove a prima facie case of discrimination. In a typical case, this can be done by proving that the employee:

(1) was discharged;

(2) was qualified for the position;

(3) was within the protected class at the time of discharge (that is, 40 or older); and

(4) was either (i) replaced by someone outside the protected class or by someone younger or (ii) otherwise discharged because of his age.

If the employee makes out a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision.

Finally, if the employer meets its burden, the burden shifts back to the employee to show that the reason was “merely a pretext for discrimination.”

In this regard, the employee must show that age was the “but-for” cause of the challenged employment action. In other words, age has to be “the” reason for the adverse employment action, not simply one of several motivating causes.

What happens if the employee who was fired was replaced by someone older than her? Does her claim fail because of that? Last week, the Fifth Circuit said “no”

Alaniz v. U.S. Renal Care

Juan Alaniz sued U.S. Renal Care, Inc. (USRC), his former employer, alleging age discrimination. Specifically, he alleged harassment and, ultimately, termination based on his age (53).

USRC initially replaced Alaniz with someone who was 58. A month and a half later, USRC also hired someone who was 26 to do the same job.

Alaniz argued that the second person was the one that actually replaced him, and the first person was merely put in place to create the impression that Alaniz was not fired due to his age.

The district court accepted USRC’s position and granted it summary judgment.

The Fifth Circuit reverses.

On appeal, the Fifth Circuit held that “although replacement by someone older suggests there is no age discrimination, it does not prove there was no age discrimination.” (emphasis added)

The Court continued: “Our sister circuits have concluded that various facts can reasonably support an inference that an older, temporary replacement was simply hired to ward off a threatened discrimination suit, and that the plaintiff can still prove he was ‘otherwise discharged because of his age.’ ”

Because Alaniz had evidence that he was “otherwise discharged because of his age,” as is often required in alleged-cover cases,” the district court should not have granted summary judgment to USRC.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Section 1983 and federal regulations

Wed, 16 Dec 2020 17:45:00 GMT

Section 1983 actions

We previously wrote here about Section 1983 claims. In summary, Section 1983 is a federal statute that allows a person to sue for violations of certain federal rights.

In this post, we write about the application of Section 1983 to federal regulations.

What does Section 1983 state?

This law allows a person to sue for “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States.

Does the term “laws” extend to federal regulations adopted by federal agencies?

Until this week, that was an unanswered question in the Fifth Circuit. In Thurman v. Medical Management Transportation, Inc., decided December 15, 2020, the Fifth Circuit said “no”.

Facts of Thurman

Leonard Thurman was a Medicaid recipient. He asked Medical Transportation Management, Inc. (“MTM”) to drive him to a doctor’s appointment.

According to Thurman, MTM failed to pick him up. He sued under 42 U.S.C. § 1983, claiming that the failure to pick him up violated his right to non-emergency medical transportation under various federal regulatory and statutory Medicaid provisions.

The district court dismissed Thurman’s suit, and he appealed.

The Fifth Circuit affirms

Looking at Thurman’s claim that he had certain federal statutory rights to non-emergency transportation, the Fifth Circuit held that none of the statutes cited by Thurman gave him such a right.

So, the Court turned to the federal regulations relied upon by Thurman. The specific issue was whether an administrative regulation may establish a federal right enforceable under Section 1983.

The Court noted that although such was an “open question” in the Fifth Circuit, “the overwhelming majority of circuits that have decided the issue have held that such claims may not be brought — consistent with the principle that federal rights are created by Congress, not agencies of the Executive Branch.”

Or, as the United States Supreme Court put it: “Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”

Based on the foregoing, the Fifth Circuit held that federal regulations do not create rights enforceable under Section 1983.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Covid era legal issue?

Mon, 14 Dec 2020 17:12:00 GMT

Covid era legal issue?

Life During Covid – 19

What is your Covid era legal issue? Covid has had a major impact on the judicial system. Do you have a family law, criminal defense, contract, business or insurance dispute?

Coronavirus, now properly labeled Covid-19, changed the way we live.

Courts have been shut down. The access to justice has been thwarted by a disease that even the best minds and experts are still trying to figure out.

Most of us are just taking orders; and this is good so we can protect ourselves and others. Whether it be wearing masks and regular hand sanitation, or quarantining to avoid those most likely to be severely inflicted.

In my experience

I know several people who have been affected by the virus. Fortunately, nobody I know has died yet.

But…

As I mentioned before, the Courts on all levels have been backed up. You will need an attorney well-versed in several judicial procedures to adequately guide you to a solution to your legal issue.

Whether it be a contract dispute, family law, criminal defense, personal injury, or social security disability, Life during Covid era is strange. Please call us at:

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Partition of land

Sat, 14 Nov 2020 21:22:00 GMT

Partition of Land

We previously wrote here about the partition of land owned by heirs of the prior owner.

As we wrote, the Mississippi legislature recently passed a new law that sets forth specific procedures for co-owners (also called co-tenants) of land to divide up the land (or the sales price of the land) when the property meets the definition of “heir property.” (Sometimes spelled as "air property.")

Under the new law, “heir property” means real property held in tenancy in common and that meets all of the following requirements:

(A) There is no agreement in a record binding all the cotenants that governs the partition of the property;

(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and

(i) 20% or more of the interests are held by cotenants who are relatives;

(ii) 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or

(iii) 20% or more of the cotenants are relatives.

Thus, land can be “heir property” even if all of the cotenants are not related.

If the land is “heir property,” then the new law must be followed.

Other partition law.

Prior to the adoption of the new law, Mississippi already had a set of laws governing the partition of land. These prior laws are not replaced by the new law (although if there is a conflict between the two, the new law controls).

Under prior law, partition was governed by Miss. Code Sections 11-21-1 through 11-21-45.

That law allows co-owners of property to file suit in Chancery Court asking for a partition in kind of the land. “Partition in kind” means actually dividing the land into separate parts and giving each co-owner a part.

Under these Code Sections, partition is not limited to “heir property.” As long as the property is owned by two or more persons, partition is available.

If the Chancery Court concludes that the land cannot be fairly divided between the co-owners, or if it is in the best interest of the co-owners, the court can order the land sold and the proceeds divided between the co-owners in proportion to their ownership interest.

Additional powers of the Chancery Court

Under these older statutes, the court is not limited to just partitioning the land or ordering a sale.

The court may also resolve any challenge as to any of the co-owners’ actual ownership of the land.

In addition, the court may “adjust the equities” between the co-owners.

For example, if one cotenant has been paying all the taxes on the land, the court can require the others to pay their share.

Similarly, if one co-owner has been collecting rents on the property, the Chancery Court can make him account to the others for their share.

If you have a real estate dispute or other need involving land, give us a call.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Land disputes – what can I do?

Wed, 11 Nov 2020 16:28:00 GMT

Land disputes

We have previously written about different land disputes and related issues.

Click here to read what we wrote about the partitioning of heir property.

We have also written several times about the rule of adverse possession. See here , here , here and here .

The need for an easement often arises in real estate matters. We wrote about them here .

People often have questions about the effect of paying taxes on land and if that makes them the owner of the land. We discussed that here .

Our blog has other articles involving land matters, such as foreclosures, bank lawsuits for a deficiency judgment, and the types of deeds and how they differ.

If you have a real estate dispute or other need involving land matters, give us a call.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Severance agreement – do I need a lawyer?

Tue, 10 Nov 2020 23:10:00 GMT

Severance agreement

A Severance Agreement (also called a severance package) is often given to an employee who is leaving the job.

The reasons an employer may offer a severance agreement to a departing employee vary. Sometimes, the employee has done good work, and the employer wants to give something in return.

Other times, the employee leaves under bad circumstances, and the employer is worried about getting sued. So, the employer offers some money and other benefits to the employee in exchange for a release of claims.

What are some common features of a severance agreement?

Although these agreements take many different forms, they usually have some of these features.

Something of benefit to the employee.

As stated above, the departing employee is usually offered money and perhaps other benefits (such as the employer continuing to pay for health insurance for some period of time).

There is no specific amount of money or benefits the employer has to offer. Usually, the money is expressed in terms of a number of weeks or months of the employee’s regular salary.

A release of all claims the employee might have against the employer.

Severance agreements often contain lengthy release language whereby the employee releases (or gives up) many different types of claims. This will, at a minimum, include any claim to further wages, workplace discrimination claims, wrongful termination claims, and the like.

There are a few claims that cannot be released or waived.

For example, the Equal Employment Opportunity Commission takes the position that an employee cannot waive the right to file a charge of discrimination with the EEOC.

Other claims required the approval of certain government agencies before they may be waived.

Confidentiality provisions.

It is common for an employer to include a provision that the employee will keep the terms of the agreement confidential and only disclose those terms to close family members, an accountant and/or a lawyer.

In general, there is nothing wrong with such a provision.

But, the employee should be careful if (i) the agreement requires confidentiality about the employer’s business practices and (ii) the employee is aware of potentially illegal activities of the employer.

If the agreement can be read as requiring an employee to keep quiet about illegal activity of the employer, it could be interpreted as witness tampering or obstruction of justice.

Section 97-9-115 of the Mississippi Code makes it a crime for someone to solicit or encourage a witness in an effort to prevent or dissuade the witness from testifying about events that would incriminate another person in commission of a crime.

Remember who wrote the agreement.

Severance agreements are almost always written by the employer’s attorney. As a result, they are drafted to protect the employer, not the employee.

If you have an doubts about the legal effect of a severance agreement that has been offered to you, seek legal advice. Let your lawyer look out for you.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Authenticating evidence

Mon, 09 Nov 2020 16:15:00 GMT

Authenticating evidence

This is the first of several posts addressing the admissibility of evidence in court. This post focuses upon the process of authenticating evidence.

How do I authenticate the evidence?

There are two Mississippi Rules of Evidence that help answer this question – – Rules 901 and 902.

Let us start with Rule 901 “Requirement of Authentication or Identification.”

Rule 901(a) sets forth a simple test for satisfying the requirement of authenticating evidence. All the proponent must do is “produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

(The Federal Rules of Evidence are substantially the same as Mississippi’s, and at times I will cite federal case law.)

Rule 901(b) then provides ten examples of how evidence may be authenticated. As we look at those, keep in mind that these are only “examples”, and they are not the only methods of authenticating evidence.

First, and perhaps most obviously, under Rule 901(b)(1), evidence may be authenticated through the testimony of a witness who has personal knowledge as to what the evidence is. There are a myriad of examples, such as:

– A witness can identify an email he wrote or received.

– She could identify a contract she signed.

– He could identify his own signature.

– A witness could identify her voice on a recording

Second, under Rule 901(b)(2), a non-expert opinion may be given as to the genuineness of handwriting of another person if the opinion is based on “familiarity with it that was not acquired for the current litigation.”

Thus, a son could authenticate his father’s signature on a will if he was familiar with his father’s signature because of their relationship. He could not, however, undertake to compare signatures on different documents solely for purposes of identifying his father’s signature in the lawsuit.

How familiar must the witness be with the other person’s signature? In Bell v. State , 910 So.2d 640, 644 (Miss. Ct. App. 2005), the owner of a car dealership was permitted to offer an opinion as to the genuineness of a salesman’s signature because he had “seen it on several prior occasions.”

Bell v. State suggests, and federal courts have ruled, that such lay opinion testimony must also meet the requirements of Rule 701, which sets forth the requirements for all lay opinions.

Rule 701 states:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

As noted, the examples in Rule 901(b) are just that – – examples. This is illustrated in Henderson v. State , 185 So.3d 1038, 1039-40 (Miss. Ct. App. 2015).

Henderson v. State

In that case, the trial court admitted into evidence a handwritten letter given by Henderson to a cellmate to be delivered to a friend. In the letter, Henderson asked the friend to provide an alibi.

The letter was delivered, but the friend’s mother found it, and it ultimately made its way to the authorities.

At trial, Henderson’s lawyer objected to the introduction of the letter because no witness could authenticate Henderson’s handwriting under Rule 901(b)(2).

The Court of Appeals rejected that argument, explaining that Rule 901(b)(2) is not the only way to authenticate handwriting.

At trial, the cellmate testified that Henderson gave him a letter, and he delivered it to Henderson’s friend. The friend then testified that it was the letter that the cellmate had given him. That was sufficient to authenticate the letter and prove that it had been written by Henderson.

Back to Rule 901

Next, under Rule 901(b)(3), documents may be authenticated by either an expert witness or the trier of fact by comparing it with an authenticated specimen.

From time-to-time, I see lawyers looking for expert witnesses in the field of handwriting. They are certainly useful at times, but you can leave it up to the factfinder where either (i) signatures are so different that it is apparent that the signature at issue is a forgery or (ii) signatures are so unique that it is clear the signature in question is authentic.

The next example stated in Rule 901(b)(4) is broad-ranging. “Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken together with all the circumstances,” are sufficient to authenticate evidence.

Take note of the absence of any reference to a witness testifying about those matters .

In Parkcrest Builders, LLC v. Housing Authority of New Orleans , No: 15-1533. at *9 n. 7 (E.D. La. Dec. 21, 2017), the district court noted that a document may be authenticated by (i) testimony of a witness with knowledge or (ii) through appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

In Progressive Waste Sols. of LA, Inc. v. St. Bernard Par. Gov’t , No. 16-15830 *6 (E.D. La. Dec. 19, 2017), the plaintiff offered certain emails from the defendant. The defendant objected on the grounds that the emails were not properly authenticated.

The district court overruled the objection because:

– the emails were sent from addresses with the domain of the government defendant;

– they purported to be sent from an individual defendant; and

– the emails were sent during the time period and contained information relevant to the case.

Thus, the district court found that the emails “have the appearance, content, patterns, and distinctive characteristics such that they are self-authenticating under Rule 901(b)(4).”

I find the use of the phrase “self-authenticating” to be a little off mark. As we will discuss below, Rule 902 of the Mississippi Rules of Evidence is entitled “Self-Authentication” and contains 11 examples. The Rule 901(b)(4) example is not one of them.

Yet, there are some court decisions that use the phrase “self authenticating” in connection with the Rule 901(b)(4) example.

I think it is more accurate to say that when a party seeks to introduce evidence, the court may find it is authenticate based upon its “appearance, contents, substance, internal patterns, or other distinctive characteristics” even when a witness cannot testify as to authenticity.

More 901 examples

Rule 901(b)(5) permits a witness to give an opinion as to the identification of a voice, whether heard firsthand or through recording, if that opinion is based upon the witness hearing the voice at any time under circumstances connecting it with the alleged speaker.

Mississippi does not have much case law on Rule 901(b)(5), but the Federal Rule reads the same.

In United States v. Chapman , 690 F.3d 358, 372 (5th Cir. 2012), the Fifth Circuit explained that “[r]ule 901(b)(5) merely requires that the witness have some familiarity with the voice which he identifies.”

Thus, a DEA agent’s hour-long discussion with the defendant was a circumstance connecting the defendant’s voice with the defendant. As a result, the agent could identify the defendant’s voice on a tape. U.S. v. Norman , 415 F.3d 466, 472 (5th Cir. 2005).

Next, telephone conversations may be authenticated under Rule 901(b)(6) by evidence that a call was made to the number assigned at the time:

– to a particular person if the circumstances, including self-identification, show the person answering the call to be the one to whom the call was made, and

– to a business, if the call was made to a place of business and the conversation related to business reasonably transacted over the phone.

In Hogan v. State , 755 So.2d 57 (Miss. Ct. App. 1999), the State introduced a tape of a telephone call between a narcotics agent and the defendant. The agent testified that the tape was authentic.

The defense objected, however, on the grounds that the State failed to offer proof that the phone number the agent called was one assigned to the defendant.

The Court of Appeals rejected this argument, stating that Rule 901(b)(6) was just one example of how to authenticate evidence. “Consequently, the failure to show the phone number for the call is not fatal.”

Though the Court could have stated it more clearly, what it did was allow the agent to identify the defendant’s voice on the tape because he subsequently met her face-to-face and heard her voice. The Court did not mention it, but it permitted the testimony under Rule 901(b)(5) regarding voice recordings.

Rule 901(b)(7) allows public records or reports to be authenticated by evidence that:

– a document was recorded or filed in a public office as authorized by law, or

– a purported public record or statement is from the public office where items of this kind are kept.

The Comment to the Rule explains “[p]roving a record is public and that it is in the custody of a public official is sufficient.”

Note, these records can also be made self-authenticating under Rule 902(1) and (2).

Ancient documents.

Rule 901(b)(8) addresses authentication of ancient documents or data compilations. There is a three-part test. There must be evidence that the document:

– is in a condition that creates no suspicion about its authenticity,

– was in a place where, if authentic, it would likely be, and

– is at least twenty years when offered.

Note: “Although the Rule requires that the document be free of suspicion, that suspicion goes not to the content of the document, but rather to whether the document is what it purports to be.” United States v. Kairys , 782 F.2d 1374, 1379 (7th Cir. 1986).

Also note: Effective July 1, 2002, the Mississippi Supreme Court amended Rule 803(16) regarding ancient documents. The amendment changed the Rule 20 year old documents to documents generated before January 1, 1998. Whether this changes Rule 901(b)(8) is unclear.

Rule 901(b)(9) applies to “[e]vidence describing a process or system and showing that it produces an accurate result.”

In Chase v. State , No. 2018-KA-01501-COA, at *15 (Miss. Ct. App. Feb. 18, 2020), the Court applied this Rule to prove that an inmate participated in a particular phone call.

Specifically, an employee of the Sheriff’s Department gave a detailed description of the process used to assign each inmate an identification number for phone calls, how calls were recorded, and how calls could be retrieved from the database.

Finally, we have the always popular “other methods.” Rule 901(b)(10) states that a party may use any method of authentication provided by the Mississippi Supreme Court or the state Constitution.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Have your rights have been violated

Fri, 06 Nov 2020 15:28:00 GMT

Have your rights been violated?

Were you denied rights?

Whatever your injustice…

Whatever your injustice, you can fight it. A common phrase amongst legal professionals is as follows: the attorney who represents himself has a fool for a client.

This may seem a callous comment, especially coming from an attorney. However, there is merit in this maxim. What this means is that the best advocate for yourself is an attorney. Find someone experienced in the loss you are suffering.

The other day in the general election…

Things change from day to day. Recently, Mississippians voted for a marijuana initiative. Who knew?

In different news, police officers are still pulling people over for unlawful arrests. When will civil asset forfeiture change? They are seizing property that does not belong to them. Under the guise of authority and a badge. They will take your property without finding you guilty of a crime. Is this Russia? Is this China? What is going on?

They are claiming without due process of law; which is held to a “preponderance of the evidence.” What this means is… in a civil capacity, if a judge THINKS you are engaged in some kind of unlawful enterprise.

… then. The cops. Can steal. Your money. To buy news cars. Rights have been violated?

Bring the balance back. Call 601-607-3156.

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Denied disability although working hard

Fri, 30 Oct 2020 18:11:00 GMT

Applied but Denied Disability

In need of your social security?

Common Misconceptions

Without much research, many people approaching retirement think that they can wait until the age of 65 and all of their social security benefits will be automatic. Whenever the government employees examine your case, you should follow up with an attorney to make sure you haven’t hit the final stage. There are deadlines to meet.

And this may be so. Some people continue to work to reach this age. While the age of 65 may be considered a “magic number,” those who continue to work until they reach this age may be suffering from chronic pain or inability to perform their prior work functions.

Waiting for this age may not be the answer if you are suffering. Although age is a factor, consider the following…

You can apply for disability. There are those in the work force who have been working since they were in their teens. This firm has been fortunate to have the opportunity to help those as young as 35 get their disability due to debilitating physical conditions.

This is because, when you are disabled, you are disabled. Call us. Don’t call anybody. You deserve the money your employers took from your payroll for all these years. Many attorneys will not know how to handle your case.

What I’m trying to say, and what we can do for you…

Denied disability? If you aren’t under continuing care from a family physician, you need to be. If you are worried about applying because you were told by a friend or family member that it won’t work, or you need to wait, please do not rely on their advice or opinions.

Denied disability? There is no “magic number” …

For more information, see this article here . For an some general statistics listed by an unaffiliated website, check here .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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How do I get my voting rights back?

Thu, 29 Oct 2020 15:02:00 GMT

How do I get my voting rights back?

Get Voting!

My voting rights were taken away…

Whatever the case may be, after doing time in prison or taking a plea in a felony case, the state takes away many of your rights.

In the eyes of society, you should be cleared of your crime. Do the time, and pay your debt to society, right?

No. As a convicted felon, you can not bear firearms. You can not vote.

So what are my options?

You can get an expungement. We briefly discussed this here , and at more length here . Call us at Panter Law Firm, PLLC to see if you qualify.

If you do not qualify for an expungement, there are other options exist. So let’s begin…

Restoration of Rights

So maybe you don’t qualify for an expungement, but you want to be able to protect your family, your self, or your property. The consequences of bearing a firearm is a serious offense in Mississippi. You could be charged as a habitual offender, and receive the maximum sentence for Felon in Possession of a Firearm.

Instead, petition the sentencing court for a restoration of rights. Contact Panter Law Firm, PLLC to file this for you. The court requires you show signs of rehabilitation. Upon a hearing, or sometimes but rarely ex parte , the judge in the sentencing court issues a Certificate of Rehabilitation. This means you can now legally bear firearms.

So what about voting rights?

This is an entirely different process, and requires a pardon from the governor, or a legislative action. Panter Law Firm, PLLC will assist you with this process.

Further, time is always of the essence, and all of these actions take time to process. Need relief from your felony status? Call us:

Article by Richard Poole Noel, III

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Appeal deadlines – – a potential trap

Tue, 22 Sep 2020 21:53:00 GMT

Deadline to appeal

In this post, we discuss a recent court decision regarding appeal deadlines in federal court that may present a potential trap for the unwary.

The usual situation.

Most final judgments of a federal district court can be appealed to the federal circuit court that embraces that particular district court.

For example, the United States Court of Appeals for the Fifth Circuit embraces Mississippi, Louisiana and Texas. So, appeals from the district courts in those states go the Fifth Circuit for review.

Under Rule 4 of the Federal Rules of Appellate Procedure, most appeals are taken by filing a notice of appeal with the district court within thirty (30) days of the entry of the district court’s final judgment.

Certain post-trial motions will toll (or delay) the deadline for filing the notice of appeal until after the district court rules on those motions.

Rule 4 states:

If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure – and does so within the time allowed by those rules – the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

Seems straight-forward enough.

Enter Edwards v. 4JLJ, LLC

On September 21, 2020, the Fifth Circuit issued its opinion in Edwards v. 4JLJ, LLC .

In that case, a group of employees sued for overtime wages. The jury returned a verdict for the employer.

After the verdict, the employees filed a motion for judgment as a matter of law or, alternatively, a motion for new trial. They did so on March 12, 2019.

That motion was clearly one that, under Rule 4, would toll the deadline to appeal.

On March 27, 2019, the district court entered final judgment in favor of the employer. The court did not address the employees’ pending motion.

Rule 4 plainly states that “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motions.”

The employees filed their notice of appeal on June 12, 2019. (The opinion is not completely clear, but this seems to have happened after the district court denied a separate, post-trial motion.)

Was the appeal timely?

The Fifth Circuit says “no”

Notwithstanding the language in Rule 4, the Court invoked the doctrine of “implicit denial.”

Specifically, the Court ruled that when the district court entered final judgment on March 27, it “implicitly” denied the employees’ motion even though the district court never mentioned it.

Thus, the deadline to appeal was 30 days after the March 27 final judgment.

What about that other post-trial I mentioned. Did it not toll the deadline to appeal?

Nope, because it was a re-filed motion. The employees had filed a motion that was denied by the district court. They re-filed it, apparently as a motion for reconsideration.

Relying on prior precedent, the Fifth Circuit held that while the filing of certain post-trial motions tolls the deadline for appeal, the re-filing of a substantially similar motion does not toll the time to appeal.

Thus, the employees missed a deadline that, in all likelihood, they lawyer did not know was running.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Do you need an expungement?

Thu, 17 Sep 2020 20:47:00 GMT

Need an expungement?

Need an expungement?

Filing an expungement in Mississippi…

The Mississippi Legislature controls what may be expunged. Sometimes, the discretion is left to the controlling jurisdiction (i.e., the judge or court that sentenced you).

There are several crimes listed that are not currently eligible for an expungement. For example, a DUI is considered a traffic offense. Traffic offenses are not expungeable.

The following are some the applicable statutes that apply:

Discretionary expunction upon petition, notice, and hearing in municipal court

Upon prior notice to the municipal prosecuting attorney and upon a showing in open court of rehabilitation, good conduct for a period of two (2) years since the last conviction in any court and that the best interest of society would be served, the court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged, and upon so doing the said person thereafter legally stands as though he had never been convicted of the said misdemeanor(s) and may lawfully so respond to any query of prior convictions. This order of expunction does not apply to the confidential records of law enforcement agencies and has no effect on the driving record of a person maintained under Title 63, Mississippi Code of 1972, or any other provision of said Title 63. Miss. Code Anno. §21-23-7(6)

No disposition and mandatory expunction upon petition in municipal court

A municipal court judge shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case. Miss. Code Anno. §21-23-7(13)

Withholding acceptance of guilty plea, non-adjudication terms, and mandatory expunction upon petition; including any and all cases with no disposition

(1)(a) In all criminal cases, felony and misdemeanor, other than crimes against the person, a crime of violence as defined in Section 97-3-2 or a violation of Section 97-11-31, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(1)(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(1)(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging a misdemeanor of domestic violence as defined in Section 99-3-7(5), a circuit, county, justice or municipal court shall be empowered, upon the entry of a plea of guilty by the criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(1)(d) No person having previously qualified under the provisions of this section shall be eligible to qualify for release in accordance with this section for a repeat offense. A person shall not be eligible to qualify for release in accordance with this section if charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f) or if charged with an offense under the Mississippi Implied Consent Law. Violations under the Mississippi Implied Consent Law can only be nonadjudicated under the provisions of Section 63-11-30.

(2)(a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:

(2)(a)(i) Reasonable restitution to the victim of the crime.

(2)(a)(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.

(2)(a)(iii) Payment of a fine not to exceed the statutory limit.

(2)(a)(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment, successful completion of a program designed to bring about the cessation of domestic abuse, or any combination thereof, if the court deems treatment necessary.

(2)(a)(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.

(2)(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of an effective evidence-based program or a properly controlled pilot study designed to contribute to the evidence-based research literature on programs targeted at reducing recidivism. Such program or pilot study may be community based or institutionally based and should address risk factors identified in a formal assessment of the offender’s risks and needs.

(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.

(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.

(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case. Miss. Code §99-15-26(1)

However, Mississippi laws changes quite frequently. The best thing to do is to talk to an attorney to discuss if your conviction is expungeable.

The process

By statute, if you need an expungement, you MUST petition the court with the assistance of an attorney who has counseled with the petitioner. Once filed, the court with original jurisdiction signs an order. Your attorney then sends the signed order to the criminal information centers with the State and the Feds.

Need an expungement? Call us.

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The common core doctrine and attorney’s fees

Sat, 05 Sep 2020 18:06:00 GMT

The common core doctrine

We previously wrote here about the ability of a winning party to also recover its attorney’s fees. This post addresses the common core doctrine and its effect on such a recovery.

Why is the common core doctrine important?

In a lawsuit, a plaintiff will often have asserted multiple claims or sued multiple defendants.

Sometimes, a party wins the case on some (but not all) claims. Similarly, a plaintiff may win the case against some (but not all) defendants.

When an award of attorney’s fees is requested, the losing defendant(s) will point to the fact that the plaintiff’s attorney spent time on unsuccessful claims and/or failed to win against all defendants.

That is where the common core doctrine comes into play.

Where does the doctrine come from?

In Hensley v. Eckerhart , 461 U.S. 424 (1983), the plaintiffs succeeded on some, but not all, of their civil rights claims.

When the plaintiffs requested an award of attorney’s fees, the defendants objected on the grounds that some of the plaintiffs’ claims failed.

Specifically, the defendants wanted the lower court to (i) take the total number of claims asserted, (ii) divide the total fees by that number, and (iii) then multiply the quotient by the number of successful claims.

By way example only, assume the plaintiffs asserted three claims but only prevailed on one of them. Further assume that the total legal fees were $90,000.

Under the Hensley defendants’ approach, the court would divide $90,000 by three, resulting in a quotient of $30,000. Then, the court would multiply $30,000 by 1 (the number of successful claims) and only award $30,000 of fees.

The district court rejected this approach. In doing so, the court explained: “Under this method no consideration is given for the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.”

On appeal, the Eighth Circuit agreed and affirmed the district court’s decision.

The defendants then appealed to the United States Supreme Court.

The Supreme Court’s ruling.

The Supreme Court began by examining case law where the plaintiffs had essentially achieved complete success, although having lost on some minor issues.

Those cases supported the notion that all of the attorney’s fees were recoverable.

The Supreme Court noted, however, that those cases were not particularly helpful in awarding fees where the plaintiff had more limited success.

The Court explained: “In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories.”

“In such a suit, even where the claims are brought against the same defendants – – often an institution and its officers, as in this case – – counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.”

But, the Court continued, “in other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”

“Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”

In summary: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.”

“In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”

“Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.”

Post- Hensley .

Building upon the Supreme Court’s ruling, courts now generally refer to claims that are “inextricably intertwined and involve a common core of facts or are based on related legal theories.”

There is no single test for applying this rule. But, some examples include:

– McCown v. City of Fontana , 550 F.3d 918, 923 (9th Cir. 2008): Although plaintiff’s claims were brought on the basis of different legal theories against different defendants, they all arose from a common core of facts, namely, his arrest on June 2, 2004. Therefore, the district court did not abuse its discretion when it treated all the claims, successful and unsuccessful, as arising out of a common core of facts.

– Coutin v. Young Rubicam Puerto Rico, Inc. , 124 F.3d 331, 342 (1st Cir. 1997): “A plaintiff should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought, though the jury awards it on a factually or legally related pendent state claim.”

– Brodziak v. Runyon , 145 F.3d 194, 197 (4th Cir. 1998): Here, the magistrate judge awarded only 40 percent of the requested fees and costs based on a determination that Brodziak prevailed on only 40 percent of his claims. This reasoning contravenes the principle set forth in Hensley that awards of fees and costs should not be based simply on the ratio of claims raised to claims prevailed upon.

– Love v. Associated Newspapers, Ltd. , 611 F.3d 601, 614 (9th Cir. 2010) [applying the doctrine to an attorney’s fees provision in a contract].

Practice pointer.

Often, when drafting a Complaint, a plaintiff’s attorney will include as many claims as she can think of, fully expecting many of them to fall by the wayside.

That is not an unreasonable approach.

But, in a case where a prevailing plaintiff may also recover attorney’s fees, additional thought should be given before including weaker claims in the Complaint. Such would only give defense counsel a basis for arguing that the plaintiff did not substantially prevail in the lawsuit.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Failure to protect an inmate from attack

Tue, 25 Aug 2020 18:35:00 GMT

Failure to protect inmates

We previously wrote here about the law regarding the failure of a prison to protect an inmate from suicide. Today, we look at a case regarding the failure to protect an inmate from an attack by another inmate.

Torres v. Livingston

On August 24, 2020, the United States Court of Appeals for the Fifth Circuit issued its opinion in Torres v. Livingston .

In that case, Torres worked as an inmate janitor in an administrative segregation unit. During mealtimes in that unit, the floor officer – – in this case, Jonathan Endsley – – opens a row of seven inmates’ food tray slots in quick succession.

Once the slots are open, the inmate janitor delivers each inmate a food tray.

Inmates often request that officers pass through miscellaneous items, such as books, newspapers, and magazines. Usually, the officer directs an inmate janitor to fulfill those requests.

While Endsley and Torres were delivering meals, Angel Sanchez, one of the inmates, requested that Endsley retrieve pictures from the floor outside his cell.

Endsley directed Torres to pick up the photos. Torres complied willingly, noting that Sanchez “appeared harmless and asked in the right tone.”

When Torres reached to grab the pictures off the ground, however, Sanchez stabbed him on the right side of his neck.

Torres files suit.

Torres filed suit against several prison officials under Section 1983 for failure to protect him from Sanchez.

Specifically, Torres asserted that the failure to protect him violated the Eighth Amendment of the United States Constitution.

What does the Eighth Amendment require here?

The Eighth Amendment prohibits, among other things, cruel and unusual punishment of prisoners.

As the Fifth Circuit observed, the United States Supreme Court has held that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.

Accordingly, “prison officials have a duty to protect prisoners from violence at the hands of other prisoners.”

A prison official may be held liable under the Eighth Amendment only if he “has a sufficiently culpable state of mind, which, in prison conditions cases, is one of ‘deliberate indifference’ to inmate health or safety.”

“Deliberate indifference is an extremely high standard to meet. A prison official displays deliberate indifference only if he (1) knows that inmates face a substantial risk of serious bodily harm and (2) disregards that risk by failing to take reasonable measures to abate it.”

“Deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.”

Looking at the facts, the Fifth Circuit concluded that there was no evidence that the prison officials knew of and disregarded the risk of Sanchez attacking Torres.

So, Torres lost his case.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Were you raided by ICE?

Mon, 24 Aug 2020 18:52:00 GMT

Raided by ICE?

Detained by ICE?

Immigration and Customs Enforcement

The United States Immigration and Customs Enforcement is the branch of the government that has authority across all the States to enforce the deportation of people who are not citizens, or do not have any license to be in the United States (known commonly as “work visa” or “green card”).

What will happen next?

Mississippi is not different from many other states… there are many Mississippians who hail from foreign nations. They have lived and worked here, and grown families here. ICE can deport them, though.

The process

Often there will be an ICE agent who investigates the legal status of immigrants once suspected. This is an extreme example: authorities took 680 employees working at poultry plants in the central Mississippi area in 2019.

However, if you have gone through the proper channels to gain citizenship, or a permit to work in the U.S., as envisioned by the system currently in effect, this should not be a problem.

But…

It is. If you have kept up with the news, the border between the United States and Mexico has become a hot topic.This effects all Hispanics, not just this particular border. The U.S. Attorney Mike Hurst, as Federal Attorney for the State of Mississippi, stated on August 7, 2019; that employers of “illegal aliens” will be prosecuted. See this link here for context. This means that the employers of non-citizens or unregistered people unauthorized to do work in the U.S. are looked on with some sympathy; wherein, they may be outside of the law, but it doesn’t make them criminals. In my eyes.

If you or a loved one becomes targeted, or raided by ICE, please call us at

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Partition of Heir Property by S. Craig Panter

Mon, 24 Aug 2020 15:41:00 GMT

Partition of Heir Property

Effective July 1, 2020, Mississippi adopted the Uniform Partition of Heir Property Act (the “Act”). The effect of the Act is to give a court (and parties appearing before the court) very specific guidelines for having property partitioned.

There are two types of partition – – by sale and in kind. Partition by sale means the land is sold and the proceeds divided among the owners.

Partition in kind results in the land being divided into smaller parcels and given to each owner in accordance with his or her interest.

The Act has many provisions, and discussing them all is beyond the scope of this blog post. Instead, I will address some of the more significant ones.

Definition of Heir Property.

“Heir property” means real property held in tenancy in common and that meets all of the following requirements:

(A) There is no agreement in a record binding all the cotenants that governs the partition of the property;

(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and

(i) 20% or more of the interests are held by cotenants who are relatives;

(ii) 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or

(iii) 20% or more of the cotenants are relatives.

Thus, land can be “heir property” even if all of the cotenants are not related.

The effect of one or more cotenants filing a partition action.

If a cotenant files a partition action, the court must first determine if the property is “heir property” under the Act.

If it is, the court must partition the land unless all of the cotenants otherwise agree in a record.

Valuation.

The next step is for the court to determine the fair market value of the land. It can do so in several ways.

First, if all cotenants agree to either a specific value (or a method of valuation), the court must use that value.

Second, if all cotenants do not agree, the court will order an appraisal from a disinterested real estate appraiser. There is a detailed description in the Act as to how the appraisal will be used by the court.

Third, if the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.

Buying out another cotenant.

If any cotenant(s) requested partition by sale , then after the determination of valuation, any cotenant (except a cotenant that requested partition by sale) may buy the interest of the cotenant(s) who requested partition by sale.

There is a very detailed method of purchase set forth in the Act.

What happens if the other cotenants do not purchase all of the interests of cotenants who requested partition by sale?

If the interests of all cotenants that requested partition by sale are not purchased by other cotenants, or if after conclusion of the buyout, a cotenant remains who has requested partition in kind, the court shall order partition in kind unless the court, after consideration of multiple factors listed in the Act, finds that partition in kind will result in manifest prejudice to the cotenants as a group.

What if the court orders a sale?

If the court orders a sale of heir property, the sale must be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group.

If the court orders an open-market sale, the parties may agree on a real estate broker to offer the property for sale. If they do, the court will appoint the broker and establish a reasonable commission.

If the parties do not agree on a broker, the court will appoint a disinterested real estate broker and will establish a reasonable commission.

The broker must offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.

What about Miss. Code Ann. Sections 11-21-1, et seq.?

Those statutes previously governed partition actions, and they still remain in effect and are supplemented by the new Act.

But, if the new Act and the older statutes are in conflict, the new Act controls.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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They have been locked up too long?

Fri, 21 Aug 2020 21:16:00 GMT

The right to counsel and a speedy trial during COVID-19; have they been locked up too long?

Incarcerated?

Life during quarantine…

Covid-19 has changed everything. But…

The Sixth Amendment to the United States Constitution STILL grants a right to a speedy trial. The United States Supreme Court has interpreted the application of this law since its inception in 1791.

In addition, Mississippi law provides some of its own standards. Mississippi Code Ann. § 99-17-1 states “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

This has already been covered in a blog here and here .

In short, what comes next?

As the governing bodies and authorities juggle with the economy opening back up, many executive orders and legislative actions will halt the function of judiciary proceedings.

Many celebrities brought special attention to the Mississippi Department of Public Corrections.

If you have had difficulty contacting a loved one, or believe that they have been wrongfully incarcerated for a lengthy period of time, we have experience dealing with the judiciary branch. Also, we have experience dealing with the executive branch and its subsidiaries.

The Parole Board

The Mississippi Parole Board grants parole at certain stages of your incarceration. Contact us.

COVID-19 changed everything. The Mississippi Department of Corrections may grant you parole. They may not. They have to do their job. After all, they are following orders and making a judgment call. You, or any of your loved ones, as an individual, have rights. Hire an attorney to figure out what to do between arrest and release. However it may happen. Locked up too long? Call

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Temporal proximity and Title VII retaliation

Tue, 18 Aug 2020 16:04:00 GMT

Temporal Proximity and Title VII retaliation

We previously wrote here about Title VII retaliation claims. Today we look at the specific concept of temporal proximity in retaliation claims.

Scope of Title VII

Title VII is a federal law that prohibits various forms of discrimination in the work place.

In addition, Title VII prohibits retaliation against an employee who:

In many cases, employers retaliate against employees for making claims of discrimination or backing up other employees who do so.

And, when they do, they will claim that they took adverse action against the employee for reasons unrelated to the employee’s Title VII issue.

So, how does the employee prove that the real reason for the employer’s adverse action was retaliation?

That is where the concept of temporal proximity comes into play.

What is temporal proximity?

Temporal proximity is just a fancy way of saying that the employer took the adverse action not long after the employee’s assertion of her Title VII rights.

This can be illustrated with the recent opinion of the United States Court of Appeals for the Fifth Circuit in Brown v. Wal-Mart Stores East, L.P.

The facts in Brown

In that case, Ms. Brown claimed that she was fired after she reported that her supervisor was sexually harassing other employees. There was no dispute that Brown did, indeed, make such a report.

According to Wal-Mart, however, Brown was terminated because she violated Wal-Mart’s Investigation and Detention of Shoplifters Policy. Specifically, she questioned a customer about shoplifting in a manner contrary to the store’s written policies.

The Fifth Circuit explained that to prevail on her claim, Brown had the burden to make out a prima facie case of retaliation by showing:

(1) she engaged in a protected activity;

(2) she suffered an adverse employment action; and

(3) a causal connection existed between the protected activity and the adverse employment action.

If Brown made out her prima facie case, the burden would shift to Wal-Mart to provide a legitimate, non-discriminatory reason for the adverse employment action.

If Wal-Mart did that, then the burden would shift back to Brown to prove that the proffered reason was not true and was a mere pretext for retaliation.

“A plaintiff may establish pretext by showing that a discriminatory motive more likely motivated her employer’s decision, such as through evidence of disparate treatment, or that her employer’s explanation is unworthy of credence,” the Fifth Circuit explained.

This is where temporal proximity comes into play.

As the Fifth Circuit stated, at the prima facie case stage, a plaintiff can meet her burden of causation simply by showing close enough timing between his protected activity and the adverse employment action.

The protected act and the adverse employment action must, however, be very close in time to establish causation by timing alone.

Turning to the facts of the case, the Court noted that Brown made her first report to the Wal-Mart ethics hotline on March 28, 2017, seven weeks and three days before her termination, and she followed up on that report on April 4, 2017, six weeks and three days before her termination.

The Court held that “because the approximately six-to-seven-week gap between Brown’s protected activity and her termination is shorter than gaps that we have previously found sufficient to show a causal connection, Brown has met her prima facie burden based on timing alone.”

The burden shifts.

Thus, the burden shifted to Wal-Mart to provide a legitimate, non-discriminatory reason for firing Brown. Wal-Mart did so, meaning that the burden shifted back to Brown to prove that Wal-Mart’s reliance on the shoplifting policy was a mere pretext for firing her.

Brown’s burden again

Although the proximity between the dates of Brown’s report of harassment and her termination were enough to get her past the first stage ( i.e. , making a prima facie case), once Wal-Mart shifted the burden back to her again, something more was required.

The Court held: “The temporal proximity between Brown’s protected activity and her termination is relevant to, but not alone sufficient to demonstrate, pretext.”

The Fifth Circuit noted that some of the additional matters it had found to be sufficient to create a jury issue included:

(i) a dispute of facts leading up to termination, disparate treatment of a similarly situated employee, harassment from a supervisor following the protected activity, the stated reason for the termination being known to the employer for years, and the employer standing to lose millions of dollars if its conduct was discovered;

(ii) unfounded performance concerns, warnings from other employees not to engage in the protected activity, and disparate treatment; and

(iii) evidence of interference with an allegedly independent investigation, disingenuous and inconsistent explanations by her employer, and prior glowing reviews.

Inconsistent statements can also be indicative of pretext. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 236 (5th Cir. 2015).

In Brown’s case, however, the Fifth Circuit simply did not see sufficient evidence to suggest that Wal-Mart’s reason for firing Brown was merely pretexual.

Thus, Brown lost.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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COVID 19 and Criminal Justice

Fri, 14 Aug 2020 18:41:00 GMT

COVID 19 and Criminal Justice

Covid 19 and Criminal Justice

How does Covid 19 (Corona virus) effect my criminal case?

Once Coronavirus hit, many were concerned about the effect it had on all institutions. Family, church, jobs and employment. Also, what becomes of the incarcerated?

In my personal experience, it has become hard for me to make an appointment at county jails and MDOC penitentiaries.

The United States Constitution, and the penumbra of law that has developed over the years, guarantees an individual to the right to counsel. Although the right to counsel does not cover “specific” counsel by a public defender, the right to counsel does mandate that an inmate have access to his or her attorney that has been privately retained.

What does this mean?

Because your rights to access to counsel may have been violated due to the Covid 19 pandemic, it is in your best interest if you are incarcerated to keep in touch with your attorney as best as possible. This includes phone calls, letter writing, or requests for in-person consultations.

In-person consultations?

During this time, this may take extra precautions by your attorney. If you or a loved one are incarcerated, see what your options are for seeking an in-person consultation. Surely, if you can received medical assistance; you can receive legal assistance.

The answer: talk to an attorney. Not just any attorney. Call us: Panter Law Firm, PLLC.

If you are curious about your area, call us. We will do our best to communicate with you or a loved one incarcerated.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Google Maps and judicial notice

Fri, 14 Aug 2020 17:23:00 GMT

Maps and Judicial Notice

The narrow focus of this post is on the ability to have the court take judicial notice of Google Maps and similar information from the internet.

The law on judicial notice

Rule 201(b) of the Mississippi Rules of Evidence allows a court to judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Rule 201(e) states that “[o]n timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.”

Google Maps and similar sources

Many courts have held that Google Maps images are facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

“Case law supports the proposition that information acquired from mainstream Internet sites such as MapQuest and Google Maps is reliable enough to support a request for judicial notice.” People v. Clark , 406 Ill. App. 3d 622, 633 (Ill. App. Ct. 2010).

“We take judicial notice of a Google map and satellite image as a source whose accuracy cannot reasonably be questioned for purposes of this case.” Pahls v. Thomas , 718 F.3d 1210, 1217 n. 1 (10th Cir. 2013).

“Courts have generally taken judicial notice of facts gleaned from internet mapping tools such as Google Maps or Mapquest.” Crandall v. Starbucks Corp. , 249 F.Supp. 3d 1087, 1099 (N.D. Cal. 2017).

“Courts have generally taken judicial notice of facts gleaned from internet mapping tools such as Google Maps or Mapquest.” United States v. Brown , 636 F.Supp. 2d 1116, 1124 n. 1 (D. Nev. 2009).

In Walters v. State , 206 So.3d 524, 534-535 (Miss. 2016), the Mississippi Supreme Court upheld the trial court’s ruling that Google Earth images were admissible. Although the Court did not specifically rely upon Rule 201 for its ruling, the trial court had. See Walters at 542 (Kitchens, J. dissenting).

See also :

American Atheists, Inc. v. Levy County , 2017 WL 6003077 at *1 n. 2 (N.D. Fla. Dec. 3, 2017) [the court used an image from Google Maps because is it a “website that is so well known and enjoys such broad use that it may have achieved a status akin to Webster’s Dictionary, permitting judicial notice of the accuracy of the site itself”].

United States v. Perea–Rey , 680 F.3d 1179, 1183 n. 1 (9th Cir. 2012) [taking judicial notice of a Google map and satellite image].

Magee v. Glacier Water Services, Inc. , Civil Action No. 16-4364 at *11 n. 29 (E.D. La. Jan. 30, 2017) [taking “judicial notice of the Google Street View photograph showing the location of the refill station”].

Although this post focuses upon Google Maps, the rationale of the cases cited above can be applied to a wide variety of information on the internet.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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A few pointers on venue

Thu, 13 Aug 2020 18:19:00 GMT

Venue

On August 6, 2020, the Mississippi Supreme Court issued its opinion in T aylor Construction Company, Inc. v. Superior Mat Company, Inc.

In that opinion, the Court addressed the standards for determining when venue is proper in a particular county.

The facts in that case are not particularly important. Instead, the case provides a good summary of rules governing venue.

“Some credible evidence”

The venue analysis begins with the well-pleaded allegations of the complaint and continues with any supplemental affidavits or other evidence in cognizable form.

“The key is that the plaintiff must present some credible evidence supporting his or her choice of forum.”

If the plaintiff does this, then “the plaintiff’s choice of venue must be given the benefit of reasonable doubt and must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.”

The “substantial act” requirement.

In Taylor Machinery , the applicable venue statute was Section 11-11-3 which, among other things, permits venue to be placed in a county where a “substantial alleged act or omission occurred.”

The Supreme Court explained that the statute provides no definition of the word “substantial” and that “we have also declined to clearly articulate one over a multitude of cases concerning this statute.”

“In the absence of a statutory definition of a phrase, it must be given its common and ordinary meaning.”

Ultimately, the Court held that “a substantial act then is one that bears a real relevance to the plaintiff’s claim. The plaintiff’s burden to demonstrate credible evidence for a choice of venue is a burden to demonstrate credible evidence of acts by the defendant in the chosen venue that have a real, not incidental, relevance to the plaintiff’s claim.”

On appeal.

On appeal, the court reviews the lower court’s ruling under an abuse of discretion standard. If the lower court’s factual findings are supported by evidence and not manifestly wrong, they should be affirmed.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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State law claim for sex and age discrimination? Nope.

Thu, 13 Aug 2020 17:48:00 GMT

Age and Sex Discrimination

We previously wrote here about sexual harassment claims under federal law. As we noted, no Mississippi law prohibits such (unless the misconduct rises to the level of assault or battery).

Has that changed? No.

On August 6, 2020, in Southern Farm Bureau Life Insurance Company v. Thomas , the Mississippi Supreme Court rejected two employees’ efforts to create such a state law claim, as well as a claim for age discrimination.

The handbook approach.

In Southern Farm Bureau , the plaintiffs expressly disclaimed any reliance on federal law prohibiting sex and age discrimination.

Instead, they argued that their employee handbook stated that Southern Farm Bureau would not discriminate on the basis of sex or age.

The Supreme Court quickly rejected that argument because the handbook contained a provision that it was not a contract of employment and did not alter the employees’ at-will status.

Public policy.

The employees also encouraged the Court to create a public policy exception to at-will employment and create a state-law alternative to the federal statutes.

The Supreme Court rejected this because federal law already provided the employees with a remedy. They simply failed to pursue it.

So, for now, federal law is the remedy for sex and age discrimination.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Remedial actions in hostile workplace cases.

Thu, 13 Aug 2020 17:10:00 GMT

Hostile workplace

We previously wrote here and here about sexual harassment in the workplace. In this post, we explain how an employer can avoid a hostile work environment claim by taking prompt remedial action.

The elements of a hostile work environment claim.

To establish a hostile work environment/sexual harassment claim under Title VII, a plaintiff must show that:

(1) she belongs to a protected class;

(2) she was subjected to unwelcome sexual harassment;

(3) the harassment was based on sex;

(4) the harassment affected a term, condition, or privilege of employment; and

(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.

(Of course, men can also have such a claim.)

It is that fifth element that we discuss here.

What is sufficient remedial action?

The remedial action must be “reasonably calculated” to end the harassment. Employers are not, however, required to impose draconian penalties upon the offending employee to satisfy the prompt remedial action standard.

Further, Title VII does not entitle a plaintiff to the specific remedial measures of her choosing. It certainly does not require that an employer fire the offending employee.

The Fifth Circuit has held that the suitability of the remedial action necessarily depends on the particular facts of the case, including the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.

The Court has held that an employer took “prompt remedial action” when it took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.

Won’t the harassed employee still feel uncomfortable if the wrongdoer remains in the workplace?

Probably so. But, it has been held that such discomfort does not rise to the level of a Title VII violation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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SSDI; also known as Social Security Disability

Fri, 07 Aug 2020 18:55:00 GMT

SSDI; also known Social Security Disability

Social Security Attorney

Do you need an attorney to help you with your social security disability claim? If you were denied, waste no time and call us at Panter Law Firm, PLLC at 601-607-3156.

Administrative Law Judge Hearing

When you hire an attorney you have an advantage in court. You have one shot to get your disability benefits at an Administrative Law Judge hearing after you were denied. You can refile, but it is in your best interest to present your case before one of these judges if you were denied.

Consider this: an Administrative Law Judge is a federal judge whose sole duty is to handle disability claims. They are very familiar with the law and need to determine the nature of your disability.

Whether or not you qualify for jobs in the “national economy,” I can sincerely say that this is unfair when you are in a locality where the economy is stagnant. If you have an attorney who has experience in these hearings, such as ourselves, we know how to present your case before the Administrative Law Judge.

A Brief Story…

I have been fortunate to help people in need. Recently, we represented a gentleman who, although young, had severe disabilities. We were able to get a fully favorable decision.

Many people like to think there is a magic number (such as 65) when someone ought to retire or see if they qualify for disability. This is simply untrue. There is no magic number. Many young hardworking adults have been working since their teens and have suffered from hard work in which they cannot perform the work they once survived. Driving hurts, or is difficult. Standing hurts, or is difficult. Sitting is painful, even if only for a certain amount of time.

Article by Richard Poole Noel, III

The following link is for informational purposes only, and Panter Law Firm, PLLC is not affiliated with any branch of the Federal Government: here is a link to the official website that gives a brief overview of the procedure on applying for social security disability.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Attorney’s fees and nominal damages

Thu, 06 Aug 2020 19:22:00 GMT

Attorney’s fees and nominal damages

We previously wrote here about your ability to make the other side in a lawsuit pay your attorney’s fees, including lawsuits involving federal civil rights. Today we write about such when a plaintiff only recovers what is called “nominal damages.”

What are nominal damages?

The term “nominal damages” refers to a situation where a jury finds that a plaintiff’s rights have been violated but that the plaintiff suffered no compensable damages. In that case, the jury may award nominal damages, usually in the amount of $1.00.

Yet, the lawyer representing the plaintiff will have expended a significant amount of time and money in taking the lawsuit through a trial.

If the federal civil rights statute allows the plaintiff to also recover attorney’s fees (and most do), what is the proper amount to be rewarded?

The Farrar rule.

In Farrar v. Hobby , 506 U.S. 103 (1992), the United States Supreme Court held that “[a] plaintiff who wins nominal damages is a prevailing party under § 1988.” (Section 1988 refers to a federal statute that permits an award of attorney’s fees to a winning party in certain civil rights cases.)

The Court explained that a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

The Supreme Court further explained that to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.

“The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement.”

“Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement.”

Does an award of $1.00 modify the defendant’s behavior to the plaintiff?

Short answer: yes.

The Farrar court explained: “A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”

So, did the plaintiff in Farrar recover attorney’s fees?

Short answer: no.

The Supreme Court held that “although the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988.”

In other words, “once civil rights litigation materially alters the legal relationship between the parties, the degree of the plaintiff’s overall success goes to the reasonableness of a fee award.”

As Justice O’Connor stated in her concurring opinion, “if ever there was a plaintiff who deserved no attorney’s fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Appeals, he got one dollar from one defendant. As the Court holds today, that is simply not the type of victory that merits an award of attorney’s fees.”

Can a significant amount of fees still be awarded to a plaintiff who only recovers nominal damages?

As the Fifth Circuit has recently stated, the answer is “yes”.

On August 5, 2020, the United States Court of Appeals for the Fifth Circuit issued its opinion in Arce v. Louisiana State .

In Arce , a jury determined that Arce’s rights under the Americans with Disabilities Act had been violated. But, the jury awarded him nominal damages of $1.00 each against two of the defendants.

The district court initially denied an award of fees based upon the rationale of Farrar .

But, on appeal, the Fifth Circuit reminded the district court that “ Farrar does not mandate the denial of fees in every case where the plaintiff seeks monetary relief and recovers only nominal damages. The Supreme Court instead explained that, in such cases, ‘the only reasonable fee is usually no fee at all.’ ” Shelton v. Louisiana State , 919 F.3d 325, 329 (5th Cir. 2019).

As the Fifth Circuit also stated in its 2019 opinion, “even nominal damages can support an award of attorneys’ fees” if the litigation “achieved a compensable goal.”

For example, the Fifth Circuit affirmed an award of attorneys’ fees in a case even though the plaintiffs “achieved no specific injunctive or monetary relief” because the litigation resulted in a significant legal victory invalidating racial preferences in public higher education admissions in Texas, a benefit that inures to all future applicants.”

So, the Fifth Circuit remanded the case to the district court to consider that question.

The second appeal.

After remand, the district court awarded Arce attorney’s fees of $38,800. Arce’s estate appealed because this was only about 10% of the fees requested.

This time the Fifth Circuit affirmed, holding that the district court’s award was “generous”.

Three lessons to be learned.

First, a plaintiff in a civil rights case who only recovers nominal damages is nevertheless a “prevailing party” under Section 1988.

Second, when the primary relief sought by the plaintiff is money, an award of only nominal damages is more likely to result in the plaintiff receiving little, or no, attorney’s fees.

Third, when the primary relief sought (and obtained) by the plaintiff is non-monetary (such as injunctive relief or a declaratory judgment), the more likely it is that plaintiff will be view as obtaining a “compensable goal.” In that case, an award of fees is much more likely.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Adverse possession and tacking

Thu, 06 Aug 2020 19:12:00 GMT

Adverse possession and tacking

We previously wrote here about the elements of an adverse possession claim. In this post, we discuss the concept of “tacking”.

The ten year requirement.

As we previously wrote, the doctrine of “adverse possession” refers to the ability acquire legal ownership of land belonging to someone else by simply using that land for at least 10 years.

What happens if you acquired the land from someone who adversely possessed it for 6 years, and then you did so for another 4 years? That is where the concept of tacking comes into play.

The term “tacking” refers to the ability of successive landowners to combine the time of their adverse possession so that the last owner can meet the 10 year requirement.

In order that one adverse possession may be tacked to another, there must exist privity of possession between the successive individuals.

As a general rule, such privity may be created by any conveyance, agreement, or understanding, that has for its object the transfer of possession of the land and is accompanied by a transfer in fact.” Walters v. Rogers , 222 Miss. 182, 75 So.2d 461 (1954).

According to an 1856 Mississippi Supreme Court decision, privity would exist with respect to land acquired by an heir following the death of the person who had been adversely possessing the land.

Also, the adverse possession must be continuous.

“While this Court does recognize tacking of an adverse possession claim from one owner to the next in order to meet the necessary ten year period, this Court has never found that a claim of adverse possession may skip over several preceding owners who had possession or use by permission.” Gillespie v. Kelly , 809 So.2d 702, 707 (Miss. Ct. App. 2002), citing Rutland v. Stewart , 630 So.2d 996, 999 (M iss. 1994).

If you have a question about adverse possession, give us a call.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Adverse possession and claim of ownership

Wed, 05 Aug 2020 16:06:00 GMT

Adverse Possession and Claim of Ownership

We previously wrote here about the elements of an adverse possession claim. One of those elements is called “claim of ownership.”

In this post, we go into more detail about what is, and is not, a claim of ownership.

Proving that possession began under a “claim of ownership.”

Exactly what does that mean? Some examples from Mississippi case law will help make it clearer.

“To be sure, our law recognizes an adverse possession claim where one enters into possession of land under the mistaken belief that it lies within the calls of his deed. If under such belief he occupies it adversely against the world for the statutory period, he will acquire title thereto.” Davis v. Davis , 508 So.2d 1062, 1065-66 (Miss. 1987) (emphasis added).

But, “one cannot set out to adversely possess the property of another, that is to say, the ‘claim of ownership’ must exist at the beginning of the ten-year statutory period.” Blackburn v. Wong , 904 So.2d 134, 137 (Miss. 2004).

In that case, the Blackburns put up a fence and enclosed a portion of Wong’s property. They were on notice, however, that the enclosed property belonged to Wong.

After 10 years had passed, they filed suit and claimed adverse possession. The chancellor denied the claim, and the Mississippi Supreme Court affirmed.

In doing so, the Supreme Court noted:

This is another one of those cases based upon the misconception that possession of property is sufficient to sustain a claim of ownership by adverse possession. The claim of ownership must have existed at the beginning of the statutory period of possession and not possession with the intent to claim as soon as the statutory period passed.

Blackburn at 137, citing Coleman v. French , 233 So.2d 796, 796-97 (Miss. 1970) (emphasis in original).

Because the Blackburns knew where their property line actually was, and because they knew they were enclosing Wong’s property, they could not prove the “claim of ownership” element of their claim. It bears repeating - - you cannot set out to intentionally adversely possess someone else's land.

Earlier this year, the same issue arose in Presley v. Stokes , No. 2018-CA-01236-COA, at *2 (Miss. Ct. App. Feb. 11, 2020). The facts in Presley were as follows.

Presley and Moorehead purchased of a large tract of land from the Cannons. The deed excepted from the conveyance “Parcel 5” owned by the Cannons. Parcel 5 was later sold to Stokes and Heard.

Presley and Moorehead later filed suit against Stokes and Heard and claimed adverse possession of Parcel 5. They claimed that they believed that all of Cannon’s fenced in land (which would include Parcel 5) had been sold to them.

If that was true, they could meet the “mistaken belief” test and establish the claim of ownership element.

But, the Court of Appeals noted a plain reading of the deed would have put them on notice that the disputed Parcel 5 tract was not conveyed by their deed. Presley at *6.

Thus, the “claim of ownership” element of an adverse possession claim essentially means the person claiming adverse possession needed to believe, at the beginning of the ten year period, that he owned the land in question.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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I Need a Post Conviction Relief

Wed, 05 Aug 2020 15:17:00 GMT

Post Conviction Relief

How do I get relief from an unjust sentence?

Once you are convicted there are a few different routes to get out of the penitentiary as soon as possible. If you have gone to trial and lost the verdict, the method would first be to appeal the trial court for a remand or reversal. You have limited time to do this, and your private attorney or public defender will have told you about this.

“Reversible error” is rare, but possible. However, a remand can make all the difference. This means, that the appellate court will look at any issues found to be in error by the trial court. A remand places the burden back upon the trial court to resolve these issues.

I need to appeal my trial!

You may be able to. However, time is of the essence.

I need an out-of-time appeal!

You may be able to. However, yet again, time is of the essence.

Do you feel like you’ve already paid your debt to society?

You may ask yourself… how will the parole board treat me? How will the Mississippi Department of Corrections handle me? What kind of time can I expect? The answer: talk to an attorney. Not just any attorney. Call us: Panter Law Firm, PLLC.

If you are curious about your area, call us. We handle these cases. They are time sensitive. The sooner you call, the better. The Mississippi Supreme Court or the Mississippi Court of Appeals handles these cases. They also involve the trial court. These are the Circuit Courts in which you may have been sentenced. You can view the districts here .

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Attorney Fees – Exception to the “American Rule”

Wed, 29 Jul 2020 19:30:00 GMT

Attorney’s Fees

We previously wrote here about the ability to recover attorney’s fees in a lawsuit. As we noted, the “American Rule” generally states that a party must pay his own fees, although there are several exceptions.

This post addresses another exception that has been recognized in other states but that Mississippi courts do not appear to have ruled upon yet (although some case law appears to recognize the general principle).

The “tort of another” exception.

The Restatement (Second) of Torts § 914(2) states:

“One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.”

This exception has also been called the “third party litigation exception.” The attorney’s fees incurred in the third party suit are simply considered another form of damages.

The concept is simple. If a tortfeasor creates a situation where a party has to litigate with a third party as the result of that tort, that party can recover its attorney’s fees incurred in that lawsuit from the tortfeasor.

Mississippi courts do not appear to have expressly adopted this doctrine. The Mississippi Supreme Court has, however, held that attorney’s fees could be recovered as damages by a grantee of a warranty deed in a suit against the grantor when the grantee had to hire a lawyer to clear his title.

The Court also recognized the ability of an insured to recover fees incurred in defending a liability suit when the insurance company wrongfully refused to provide a defense.

Proving attorney’s fees.

To recover fees under the exceptions discussed in our prior post, a party usually files a post-trial motion.

“It is proper for the trial court to hold a hearing after the trial of the case to hear evidence on the issue of attorney’s fees.” Missala Marine Services, Inc. v. Odom , 861 So.2d 290, 296 (Miss. 2003).

To recover attorney’s fee under the tort of another exception, however, it is likely that the amount and reasonableness of such have to be established at trial.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Setting up an FFA gun trust

Wed, 29 Jul 2020 14:40:00 GMT

Setting up an FFA gun trust

The Trust

Many are familiar with a trust. What many may not know, is that a trust can be legal instrument that protects not only your guns, but their legal passage for whom you intend to possess them once you pass away. For example, a minor cannot legally possess a firearm; simply because they can’t own personal property until they are 18. In Mississippi, you can’t purchase a handgun until you are 21.

Getting back to the point, it is mindful of any person to make sure their valuables are taken care of. Specifically, if any weapons you possess are covered by Title II of the Federal Firearms Act; technically, whether living or deceased, you are the only one with the license to possess them. This can create problems. Read on…

Gun rights and privileges

Establishing a trust is the best way to not only leave your valuables behind without incurring a fee, but vesting authority in a trustee who can transport the equipment if it is not currently in your possession and you need it returned to you or to your beneficiary.

So to avoid any potential problems, you need to consult a lawyer.

Easily avoided problems

The BEST way to establish your wishes is to consult a lawyer with experience in estate planning and probate to execute a last will and testament. Often, land can be devised by deed, and property devised by will or gifting. Sometimes, a trust becomes a great option. This is particularly important when it comes to guns regulated by State and Federal law.

Online forms and research WILL NOT help you. In fact, these types of documents will likely create more problems; problems you will not be able to handle after you are gone. Problems you don’t want your loved ones to deal with.

You may ask yourself… do I need a will? Do I need an FFA gun trust? The answer: talk to an attorney. Not just any attorney. Call us: Panter Law Firm, PLLC.

If you are curious about your area, call us. We handle wills, estates, related trusts, and probate cases across Mississippi. Chancery Courts in Mississippi have jurisdiction over these types of issues. However, the documents can be held in person. Check out this map to see our practice area.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Changes to the Mississippi Rules of Evidence

Fri, 17 Jul 2020 21:40:00 GMT

Rules of Evidence

Effective July 1, 2020, the Mississippi Supreme Court has approved several changes to the Mississippi Rules of Evidence.

You can read the changes here: https://courts.ms.gov/appellatecourts/docket/sendPDF.php?f=700_502231.pdf&c=17865&a=N&s=2

This post will briefly summarize the changes.

Rule 502. Lawyer-Client Privilege.

The amendment to the Rule has the effect of limiting the scope of any waiver of the privilege.

If a party waives the attorney-client privilege as to a particular communication, the waiver also extends to other undisclosed communications if all three of these elements are met:

If the disclosure is inadvertent, such does not operate as a waiver if:

Rule 803(6).

This rules creates a hearsay exception for Records of a Regularly Conducted Activity.

There are five elements that must be met to satisfy the rule. Prior to the amendment, the 5th element was that neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

The amendment now puts the burden on the opponent of the evidence to demonstrate such.

Rule 803(7).

The rule creates a hearsay exception for the absence of a Record of Regularly Conducted Activity. Again, the amendment places the burden on the opponent to show lack of trustworthiness.

Rule 803(8).

This is the Public Records exception to hearsay. Once again, the opponent of the evidence bears the burden of proving the lack of trustworthiness.

Rule 803(10).

This hearsay exception for the absence of a public record. The amendment applies to criminal cases, and it requires the prosecutor to give advance notice of the intent to invoke this exception.

803(16).

This is the Statements in Ancient Documents exception to hearsay. Prior to the amendment, the exception applied to documents that were at least 20 years old.

Now, the document must have been prepared before January 1, 1998.

The reasoning behind this amendment is that given the exponential development and growth of electronic data since 1998, the exception could be used to admit large amounts of unreliable ESI.

Rule 804(b)(3).

This Rule permits the use of statement against interest when a declarant is unavailable as a witness.

The amendment adds the requirement that, in a criminal case, the statement is one that tends to expose the declarant to criminal liability.

Rules 902(12) and 902(13).

These new rules allow certain electronic data to be self-authenticating.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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Evidence in car wreck cases

Fri, 17 Jul 2020 20:16:00 GMT

Evidence in car wreck cases

On June 30, 2020, in the case of Murray v. Gray , the Mississippi Court of Appeals addressed some common evidentiary objections in car wreck cases.

In that case, a car being driven by Murray collided with a truck driven by Parker and owned by Gray.

The pivotal issue was whether Murray’s car entered Parker’s lane or vice versa.

Murray had little recollection of what happened. Parker, on the other hand, testified that Murray’s car veered into his lane of traffic and hit his truck.

A highway trooper arrived on the scene and gathered evidence. At trial, several common objections arose as to testimony about the accident.

After a jury returned a verdict for the defendants, Murray appealed.

What Parker told the trooper.

After Murray rested, the defendants called Trooper Lucas to testify. Defense counsel asked Lucas what Parker told him about the car wreck when they talked at the scene, and Murray asserted a hearsay objection.

Defense counsel responded, “Judge, this would be potentially an admission against interest, but this would be information obtained during the course of his investigation.”

The circuit court overruled Murray’s objection, and Lucas testified, “I asked [Parker] what happened. He stated to me that the car come in on him and he swerved right to avoid the car.”

The Court of Appeals found error in the lower court’s ruling. The Court held: “Parker’s statement plainly was not an ‘admission against interest.’ Parker told Lucas that Murray caused the car wreck. The statement was a self-serving one in Parker’s interest.”

The defendants also argued that Lucas’s testimony was admissible under Mississippi Rule of Evidence 803(6), an exception to the hearsay rule for “Records of a Regularly Conducted Activity.”

The Court of Appeals rejected that argument, holding simply enough that Lucas’s trial testimony was not a “record.” Lucas simply repeated on the witness stand what Parker had said on the side of the road. Parker’s statement was not memorialized in any record.

“Moreover, even if Parker’s statement had been memorialized, it still would not have been admissible under Rule 803(6). That exception to the hearsay rule does not necessarily permit the introduction of ‘all the contents’ of a record of a regularly conducted activity.”

“Mere recitations of statements of others ( i.e ., hearsay within hearsay) are not admissible simply just because they are written down or typed in such a record.”

The trooper’s conclusion about who caused the car wreck.

Again, over Murray’s objection, the circuit court admitted into evidence Trooper Lucas’s Uniform Crash Report that reflected his conclusions that Murray’s car crossed the center line and caused the collision and that Parker’s truck never crossed the center line.

And, again, the Court of Appeals held that the circuit court erred in doing so.

On appeal, the defense relied upon Rule 803(8) of the Mississippi Rules of Evidence and the case of Rebelwood Apartments LP v. English, 48 So.3d 483 (Miss. 2010), in which the Mississippi Supreme Court admitted certain police reports into evidence pursuant to that Rule.

Rebelwood is worth reading on the this issue if you anticipate an argument at trial about the admissibility of a police report, but in Murray , the Court of Appeals found it to be inapplicable.

Specifically, the Court stated: “This case raises a different issue than Rebelwood . The JPD reports in Rebelwood compiled evidence gathered by the investigating officers and reached certain factual conclusions. But the JPD reports did not offer expert opinions.”

“The UCR in this case, in contrast, includes not only evidence based on Trooper Lucas’s direct observations of the crash scene but also a narrative and diagram that essentially reconstruct the subject crash based on Lucas’s opinions as to how that crash occurred. This is a material difference between this case and Rebelwood .”

The Court concluded: “Similarly, although Trooper Lucas had substantial experience investigating accidents and preparing accident reports, there was no evidence that he was qualified as an expert in accident reconstruction.”

“Accordingly, Murray properly objected to the admission of the UCR because that document’s narrative and diagram reflected Lucas’s otherwise inadmissible opinions regarding the vehicles’ paths, causation, and fault. Lucas was not qualified to offer such opinions.”

Rulings of another court regarding Murray’s expert.

The circuit court allowed defense counsel to cross-examine Murray’s expert about rulings of other courts that found his opinions in those cases to be inadmissible. Finding no Mississippi authority on that specific issue, the Court of Appeals looked to a federal court ruling with which it agreed:

“Any attempt to present a Daubert ruling of another court would be an attempt to circumvent this court’s role as the ‘gatekeeper’ in this case by asking the jurors to substitute the judgment of another court, in another case, about whether an expert is qualified.”

As a result, the Mississippi Court of Appeals reversed and remanded the case to the circuit court.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Denied Social Security Benefits?

Tue, 30 Jun 2020 17:47:00 GMT

Denied social security benefits? Hire Panter Law Firm, PLLC .

Denied social security benefits?

If you are denied your Social Security benefits, then act quickly!

If you were denied your social security benefits, you have the opportunity to have your day in court to appeal the denial. You need to contact an attorney who handles these issues as soon as possible…

Why?

The appeal process takes time. First, you have to make sure you timely file your request for reconsideration. This is considered 60 days upon receipt of your denial letter.

Don’t wait!

Although you have sixty days, an attorney could have difficulty taking your case at the last minute. There is a process that needs to take place for an attorney to take your case and enter an appearance on your behalf as your representative.

We have already discussed this briefly here , but I would like to emphasize the importance of:

A) Not giving up;

B) Exercising your right of appeal in front of an administrative law judge (having your day in court);

C) And hiring an attorney to assist you.

Basically, an administrative law judge is a federally appointed judge who only handles social security administrative hearings. Just because you were denied doesn’t mean that the “system” is through with you. These judges will listen to your story, any updated medical issues. They will use the accompaniment of a vocational expert. The vocational expert will consider the actuarial national statistics for the amount of jobs you qualify for.

To clarify; this is an abrupt process. It does not require an attorney, but you should consider hiring one who knows how the procedure works and can present the appropriate facts to increase your chance of receiving your well-earned money. There is preparation required. For example, the vocational expert may qualify you to be eligible for particular jobs because of one small detail you excluded from your testimony. Without a doubt, an attorney familiar with the rules of the court can cross-examine the expert.

As a matter of fact, it all boils down to the FACTS . Get an experienced lawyer who can point them out. By all means, call us at 601-607-3156 for assistance.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Wrongful Arrest and Police Brutality

Wed, 10 Jun 2020 20:13:00 GMT

What do you do if you are a victim of a wrongful arrest and police brutality?

Wrongful Arrest

First, you must decide if you have been wrongfully arrested. Consulting an attorney is the first step.

Police often have to be decision makers. Based on quick judgment, they may make a split-second decision that is a bad decision. As a consequence, citizen’s lives may be have been permanently ruined. Enter the 1983 action…

A Brief Overview

Generally. a major hurdle in a case of wrongful arrest and police brutality lies in qualified immunity. Previously discussed here . Here, we will discuss a defense to all “1983” actions. These are actions filed with the federal court under U.S.C. Title 42 Section 1983. The purpose of this legislation is to provide relief for people who have been injured by government officials.

As history would have it, the king is sovereign, and all actions done by him and people in his employ received complete immunity. That is, until the population or other political families ousted them from their throne.

This is not a history lesson, but you may recall learning about the Magna Carta in middleschool or highschool. Local land owners created this document to curb King John’s excesses in 1215. It is widely considered to be the single-most important inspiration of the Western world in paving the way to not only landowner’s rights, but individual rights.

Consider the recent case Amador v. Vasquez files a Section 1983 claim.

This is a case involving a March 11, 2020 opinion in the Fifth Circuit involving a 2015 police encounter. After a continuing altercation with the police, the police shot and killed Mr. Flores. He posed no real danger. In fact, they probably could have considered him a nuisance. Although he acted, what many would call, “irrationally,” he lost his life and his family was bereaved. This case is a classic example of excessive force, and also a lesson about how the law treats sovereign immunity.

Consequently, the way things work in a case like this, the family or “next friend” files a cause of action. There are issues of law, and there are issues of fact. This is not indifferent from many civil, or criminal, cases. If one party can prove that there is no material issue of fact, the case will fail well short of your day in court…

What about qualified immunity?

Therefore, whatever political leanings you may have, a person’s life and livelihood are extremely important one way or the other. There are many positions, such as the one here , that advocate for the complete absolution of qualified immunity. As the law stands, right now, here in 2020, you will need to hire an attorney to protect your rights. Call Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Disorderly Conduct – Failure to Comply

Mon, 25 May 2020 14:59:00 GMT

Have you been charged with Disorderly Conduct, Failure to Comply?

Disorderly Conduct?

You need to know what to do when you have been charged with Disorderly Conduct

This charge is becoming more and more frequent. Because of social media, the traditional media at large, and the way that they have dramatized everything; they polarized society. There is a huge gap between what is right, and what is lawful. Don’t get me wrong, law enforcement officers have a tough job, but there is no reason for them to detain, arrest, and prosecute an individual who posed no danger to others. For them, I understand it is better safe than sorry, but before taking the fall for an alleged crime, wherein you were doing no wrong, you need to defend your reputation and your record.

The Law…

The statute under which a Mississippi officer or agent can arrest you is §97-35-7, Mississippi Code Annotated, 1972 . The legislature frequently makes changes to this statute. You need an attorney to help you fight this. The reason why? This is a misdemeanor charge, and the local court will not be a court of record automatically. The judge will choose to apply the law as written. The judge will also likely side with law enforcement. Consider this, however: “individuals have a right to resist illegal arrest” Jones v. State , 798 So. 2d 1241, 1250 (Miss. 2001)

Fighting a Disorderly Conduct – Failure to Comply allegation

Remember, you have the constitutional right to contest your charge and confront the person who accused you. You can do this yourself. However, the best thing you can do is find someone who will fight for your rights. A skilled attorney.

The answer: talk to an attorney. Not just any attorney. Call us: Panter Law Firm, PLLC.

If you are curious about your area, call us. We have experience in many jurisdictions across the state of Mississippi.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Obligations of a small business – COVID-19

Wed, 01 Apr 2020 22:49:00 GMT

In mid-March, Congress passed the Families First Coronavirus Response Act (“FFCRA”). President Trump signed the bill, and it went into effect on April 1, 2020.

The FFCRA contains many provisions, and two are particularly important for small businesses.

First, the Act entitles certain employees to receive up to two weeks of paid sick leave if they are unable to work for certain reasons related to COVID-19. Generally speaking, full time employees receive their regular rate of pay. Calculating what is owed to a part-time employee becomes a little more complicated.

Employees who are unable to work for certain other reasons related to COVID-19 receive 2/3rds their regular rate of pay.

Second, the Act permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid. (Usually, leave under the FMLA is unpaid.)

The Act also imposes certain limitation, or caps, on how much an employee can receive.

The Department of Labor has now issued a 124 page Regulation. Sifting through this Regulation to determine exactly what an employer must do is a complicated process. The scope of this Regulation is far beyond what can be posted here.

The Panter Law Firm has already been called upon to render advice as to the obligations of an employer under the Act.

If you are a small business owner and have questions about your employees and your obligations, give us a call.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Actual cash value and insurance

Tue, 31 Mar 2020 19:25:00 GMT

Actual Cash Value

Many property insurance policies state that the insurance company will pay the actual cash value of damaged or destroyed property. But, what does that mean exactly?

On March 30, 2020, in Mitchell v. State Farm , the United States Court of Appeals for the Fifth Circuit addressed that very question under Mississippi law.

The facts in Mitchell

In 2017, a storm damaged Mitchell’s home in Waterford, Mississippi. At the time, the home was insured by State Farm.

State Farm sent an adjuster to examine the damage. Later, Mitchell received a payment for $646.19.

Under Mitchell’s policy with State Farm, Mitchell was to receive “the actual cash value at the time of the loss of the damaged part of the property.” But, the term “actual cash value” was not defined in the policy.

The Fifth Circuit looked at the Mississippi Creditor-Placed Insurance Act and noted that “actual cash value” was defined as “the cost of replacing damaged or destroyed property with comparable new property, minus depreciation and obsolescence.”

Using a similar approach, State Farm had explained in a document provided to Mitchell that Actual Cash Value was the “repair or replacement cost of the damaged part of the property less depreciation and deductible.”

State Farm estimated that the cost to replace the roof would be $3,246.42 and that depreciation amounted to $1,600.23. Her deductible was $1,000.

Thus, Mitchell’s ACV payment was calculated as $3,246.42 minus $1,600.23 minus $1,000, for a net final total Actual Cash Value of $646.19.

Mitchell’s position

Mitchell objected to State Farm’s calculation because it applied depreciation to the total amount necessary to replace Mitchell’s roof, including both parts and labor.

Mitchell argued that, instead, State Farm should have applied depreciation to the cost of materials only, not to the cost of labor.

The Fifth Circuit’s ruling

As noted, Mississippi’s Creditor-Placed Insurance Act defines “actual cash value” to mean “the cost of replacing damaged or destroyed property with comparable new property, minus depreciation and obsolescence.”

Although the policy at issue was not creditor-placed insurance, both Mitchell and State Farm agreed that Mississippi courts generally apply this definition to Mississippi insurance contracts.

What Mitchell and State Farm disagreed over was how much to deduct in depreciation.

To illustrate the difference between the parties’ positions, the Court used a hypothetical destroyed roof as an example.

The Court said suppose the hypothetical roof can be replaced for a cost of $5,000 in materials and $5,000 in labor—a $10,000 roof. Also, suppose that the destroyed roof was 10 years old and expected to last 20 years.

Under Mitchell’s interpretation, the Actual Cash Value would be $7,500, because $2,500 would be deducted in depreciation (half of the cost of the materials).

By contrast, State Farm’s interpretation of “Actual Cash Value” includes depreciation of both the materials and the labor in constructing the roof.

Using the same example, State Farm’s interpretation would yield an Actual Cash Value of $5,000, because $5,000 would be deducted in depreciation (half of the total cost of replacing the roof).

Mitchell’s position prevails.

Under Mississippi law, “ambiguity and doubt in an insurance policy must be resolved in favor of the insured.”

Because the term “actual cash value” was not defined in the policy, and because the term could reasonably be interpreted in two different ways, Mississippi law required that the ambiguity be resolved in Mitchell’s favor.

And, that is what the Fifth Circuit did.

The Fifth Circuit also noted with approval a Sixth Circuit ruling that depreciating labor does not make the policyholder whole but rather frustrates the indemnity purpose of Actual Cash Value coverage, because the cost of labor to install a new garage would be the same as installing a garage with 10 year old materials.

In summary, “placing a homeowner in a position identical to the one she was in before the damage to her property accords with Mississippi’s definition of Actual Cash Value as ‘the cost of replacing damaged or destroyed property with comparable new property, minus depreciation and obsolescence.’”

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Section 1983 and employment discrimination

Fri, 27 Mar 2020 19:56:00 GMT

Section 1983 and employment discrimination

Many employment discrimination claims fall under a federal law called Title VII. That law prohibits several types of discrimination and harassment in the workplace.

Today, we discuss that type of claim when made by a public employee under Section 1983 (which is short for 42 United States Code Section 1983).

As we wrote here , Section 1983, in and of itself, does not provide any particular rights. Instead, it is a vehicle for seeking damages for the violation of rights found elsewhere in the law.

On March 27, 2020, the United States Court of Appeals for the Fifth Circuit issued its opinion in Jones v. Hosemann . It doing so, it compared and contrasted employment claims under Title VII and Section 1983.

The facts of Jones

Jones, an African-American man, was denied a promotion by the Mississippi Secretary of State’s office.

He filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC found there was reasonable cause to believe that the Secretary of State’s office violated Title VII of the Civil Rights Act.

Within a couple months of the EEOC’s determination, someone reported that Jones violated the Secretary of State’s office policy by being in the building after hours.

An investigation ensued, and Jones was fired. He subsequently brought this suit.

In Jones’s complaint, he alleged that defendants Doug Davis, Kim Turner, and Carla Thornhill – – who were all employees in the Secretary of State’s office – – conspired, colluded, and collaborated to deny him the promotion.

Although Jones asserted several claims against a number of defendants, the one we look at today is his claim against Davis, Turner, and Thornhill.

Specifically, he alleged that those three individuals violated his Fourteenth Amendment rights by unconstitutionally discriminating against him based on his race. He filed his claim under Section 1983, asking for a remedy for that violation.

The district court made several rulings. The only one we address in this post was the ruling that allowed that Section 1983 claim to go forward.

Davis, Turner and Thornhill appeal

The Fifth Circuit began by noting that it examined Section 1983 discrimination claims made by public employees in a manner similar to claims made under Title VII.

“In doing so, we have stated that invidious discriminatory intent can be shown in the same way under § 1983 as under Title VII – – by either direct or circumstantial evidence.”

The Fifth Circuit noted that “both Jones and the district court proceeded on the assumption that his claim would be akin to a Title VII circumstantial evidence claim.”

To make such a claim, a plaintiff would need to show that he:

(1) was a member of a protected group;

(2) was qualified for his position;

(3) suffered an adverse employment action; and

(4) received less favorable treatment than similarly situated individuals outside of his protected group.

“So, proceeding on the assumption that Jones’s claim against the individual employees was just like a Title VII claim, the district court denied the employees’ motion to dismiss because Jones’s complaint contains allegations along these Title VII lines.”

The district court overlooked something, however.

Despite the fact that Title VII claims and Section 1983 claims such as the one Jones filed are analyzed similarly, there is an important distinction.

Title VII applies to employers. The Section 1983 claim that Jones filed, however, was against individuals.

For that reason, there was another element that Jones had to proved – – individual causation.

More specifically, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”

Such a defendant cannot be held liable “unless they themselves acted on account of a constitutionally protected characteristic.”

So, “it is not enough for a plaintiff to simply allege that something unconstitutional happened to him. The plaintiff must plead that each defendant individually engaged in actions that caused the unconstitutional harm.”

This is where Jones loses.

In his Complaint, Jones stated that he interviewed for a promotion and “that he was not selected for the job.” But, he did not allege that the three individual employees were the ones who interviewed him, rejected him, or selected someone else for the job.

Jones also alleged that the only reason given for his non-selection was that he was not the “‘right fit.” But ,Jones did not claim that any of the three individual employees gave this allegedly false reason.

The allegation that the three individual employees “conspired, colluded, and collaborated to deny” him the promotion was just a “naked assertion of conspiracy” without “factual enhancement.”

Thus, Jones failed to adequately state a Section 1983 race-discrimination claim upon which relief could be granted.

If you think you have a legal issue involving discrimination against a public employee, give us a call and let us help.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Adverse possession and permissive use.

Tue, 24 Mar 2020 19:10:00 GMT

Adverse Possession v. Permissive Use

We previously wrote here about adverse possession and the factors that must exist to adversely possess land of another. Today, we address the “hostile or adverse” factor and the impact of permissive use.

As we previously wrote, before a person can acquire legal title to land by adverse possession, his use of the property must be adverse or hostile to the interests of the true owner.

If the landowner has permitted the person to use the land, then the use is not “adverse”.

Does that mean that a use that began as permissive can never turn into a hostile or adverse use? No, it can under the right set of facts.

Unfurling the flag.

I have seen some cases that simply state that a use that began with permission of the landowner cannot thereafter result in adverse possession. That is a correct, but incomplete, statement of the law.

“Possession that at its inception is with permission cannot become adverse until a clear claim of hostile ownership is made by the user.” White v. Usry , 800 So.2d 125, 132 (Miss. Ct. App. 2001).

In Stringer v. Robinson , 760 So.2d 6, 8 (Miss. Ct. App. 2000), two adjoining landowners (Robinson and Thompson) were each raising cattle. Their common property line ran through a large gully.

To keep the cattle separate, Thompson proposed to build a fence. But, to avoid the difficulties of building and maintaining a fence in a gully, Thompson suggested that he build the fence on Robinson’s land up above the gully. Robinson agreed.

Thompson later sold his land to Stringer. She subsequently filed suit to have the court declare that the fence was the new property and that she had adversely possessed some of Robinson’s land.

The trial court ruled against Stringer, and she appealed.

Stringer loses on appeal as well.

The Mississippi Court of Appeals agreed that Stringer did not have a valid adverse possession claim.

The Court explained “possession with the permission of the record owner can never ripen into adverse possession, until there is a positive assertion of a right hostile to the record owner which is made known to him.”

Because Thompson was granted permission by Robinson to build the fence on Robinson’s land, and because Stringer acquired the land from Thompson, she was still a permissive user unless and until she “unfurled her flag” and put Robinson on notice that she claimed ownership of the tract of land.

Or, as was more poetically quoted in Blankinship v. Payto n , 605 So.2d 817, 819-20 (Miss. 1992):

An adverse possessor must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.

All Stringer had done was make some modest repairs to the fence. That was simply not enough.

What might transform a permissive use to an adverse one?

There are several ways in which a permissive user could become an adverse user. Just a few example might include:

If you think you have a legal issue involving adverse possession, give us a call and let us help.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Do I need a Will? Talk to Us.

Mon, 16 Mar 2020 20:28:00 GMT

Do I need a will?

A Will…

This is a “Last Will and Testament” of your final wishes. Take heed. Please do not construe your intentions with your wanted outcomes. A blank piece of paper, a pen, and a friend will not work.

No Will?

Many may think that they can simply tell somebody what they want to happen once they pass away.

No. This creates problems; what you want and intend to do needs to be memorialized. You need the assistance of a lawyer. It is not pleasant to think about, but it is necessary if you want everything to flow smoothly upon your passing.

Easily avoided problems

Disputes about family property are the easiest way for family members to sunder. This can be easily avoided. The reason we have statutes concerning last wills and testaments is in order for the law to be clear. To avoid unpleasant family disputes. There are certain exceptions, but the BEST way to establish your wishes is to consult a lawyer with experience in estate planning and probate to execute a last will and testament.

“Probate” is a legal term for administering the litigation of the property of the recently deceased. Establishing a will administers property that passes through the will. Have a trusted lawyer guide you through this. There are ways that property can bypass the formality of probate so as not to incur unnecessary expense.

Online forms and research will not help you. In fact, these types of documents will likely create more problems; problems you will not be able to handle after you are gone. Problems you don’t want your loved ones to deal with.

You may ask yourself… do I need a will? The answer: talk to an attorney. Not just any attorney. Call us: Panter Law Firm, PLLC.

If you are curious about your area, call us. We handle wills, estates, and probate cases across Mississippi. Chancery Courts in Mississippi have jurisdiction over these types of issues. Check out this map .

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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White Collar Crime?

Fri, 06 Mar 2020 22:49:00 GMT

White Collar Crime

White collar crimes: What you need to know

Big Trouble in Little Mississippi

Recently, the State Auditor has exposed and brought to prosecution individuals charged with embezzlement. This was found by tracing unaccounted money. For example, embezzlement by local officials and employees using public money that doesn’t belong to them, by cash or card. One reason this has gone unnoticed is because of the fact that every big or small community is its own little world, and the mentality in Mississippi is to help, not hinder an individuals livelihood.

For example, here is a link to one of the most recent pending investigations.

Know your rights

Oftentimes, these types of offenses take many months of investigation. However, anyone accused has the same rights as someone accused of murder, arson, i.e. violent crimes. Because of these folks inexperience with “getting into trouble,” they often don’t immediately seek appropriate legal counsel. They should.

Also remember, that as a part of a criminal proceeding, there could be a civil aspect. This is know as civil asset forfeiture. Please find out more about that here . The procedure follows a very different pace than criminal proceeding, despite involving the same incident.

Seek counsel. When you or someone you know has been accused of a “white collar crime,” call us at Panter Law Firm, PLLC.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Piercing the Corporate Veil

Fri, 06 Mar 2020 21:06:00 GMT

Pay no attention to that man behind the curtain!

The phrase “piercing the corporate veil” refers to a legal remedy whereby a party injured by the acts of a business entity (such as a corporation or limited liability company) can impose personal liability on the owners of that entity.

Let us just use the term “company” to refers to such business entities.

Generally, the law considers a company to be separate and distinct from its owners. Thus, the fact that an party has a valid claim against the company does not necessarily mean he has a claim against the owners of the company.

For example, Party A might enter into a contract with Company ABC. If the Company breaches the contract, Party A can sue the Company, but he usually will not be able to sue the owners for breach of contract.

Similarly, Party B might be involved in an automobile accident caused by an employee of Company XYZ. Party B can sue the Company, but not the owners.

This is significant because when the injured party has a large monetary claim against the Company, the owners often walk away from the Company and allow it to become insolvent. In such a situation, the injured party may end up with a worthless “paper judgment” against the Company.

As a result, the courts have created a remedy called “piercing the corporate veil.” When certain conditions are met, and to avoid fraud or other extreme injustice, the courts will allow an injured party to “pierce” through the company to impose liability on the owners.

This doctrine was just recently addressed by the Mississippi Court of Appeals in Home Solutions of Mississippi, LLC v. Ridge , decided March 3, 2020.

The facts in Home Solutions

In 2007, Ridge filed suit against Home Solutions and its members, Sandridge and McCabe, over work performed on the remodel of Ridge’s antebellum home.

After a 2013 bench trial, Ridge was awarded a judgment against Home Solutions in the amount of $754,366.56, but his claims against Sandridge and McCabe were dismissed.

Thereafter Ridge filed a supplemental proceeding against Sandridge and McCabe to pierce the corporate veil and to hold them liable for the judgment against Home Solutions.

A jury found in favor of Ridge, and a final judgment was entered against Sandridge and McCabe in the amount of $754,366.56.

Sandridge and McCabe appeal

On appeal, Sandridge and McCabe (hereinafter the “Owners”) pointed out that the court had dismissed the claims against them in the first suit. Thus, they argued that Ridge was not entitled to a “second bite at the apple” under the legal doctrines of res judicata and collateral estoppel.

The Court of Appeals rejected that argument because the Owners had failed to make an adequate record as to what the claims against them were in the first case.

Because the Court could not determine from the record whether the claims against the Owners in the second suit were actually tried by the lower court in the first suit, the Owners could not meet their burden of proof on the res judicata and collateral estoppel defenses.

Piercing the corporate veil

With respect to piercing the veil in a contract case, the Mississippi Supreme Court has stated that a complaining party must produce evidence showing all three of these:

(1) some frustration of contractual expectations regarding the party to whom he looked for performance;

(2) the flagrant disregard of corporate formalities by the defendant corporation and its owners; and

(3) a fraud or other equivalent misfeasance on the part of the owners.

In a tort case, the requirements are essentially the same.

The evidence

In the Ridge case, the evidence showed:

– That the Owners had withdrawn so much money from the Company that it was left insolvent and unable to pay Ridge’s judgment against it;

-That one of the Owners destroyed the business records of the Company after the judgment against it was entered; and

-By the time of the trial against the Owners, the Company was no longer operating.

On appeal, the Owners claimed that Ridge had failed to prove the facts necessary to pierce the veil. But, the Court of Appeals rejected the argument because, in their Brief, the Owners did not point to any particular evidence.

The Court explained:

It is not the obligation of this Court to independently search the record front to back to ferret out those facts that would bear on the issue. It is the duty of the appellant to point with particularity to those facts in the record that impact on the issues of law he would have the Court consider, and follow that up with argument that is persuasive in its own inherent logic, or supported by citations to authority, making the case as to why the appellant’s position should prevail.

An alternative theory of liability

The Court of Appeals also concluded that any problem with the proof on the claim to pierce the veil was not dispositive because the jury had been presented with an alternative theory of liability – – dissipation of assets.

More specifically, Ridge claimed that the Owners violated a statute by dissolving the Company and leaving it under capitalized when (a) they knew the Company had a contingent liability to Ridge and (b) they made plenty of money to cover that contingent liability prior to the dissolution.

Thus, the jury was given two theories of liability – – piercing the veil and dissipation of assets.

The jury returned a general verdict for Ridge (which means the verdict stated that Ridge won but did not state under which legal theory).

The Court of Appeals explained: “Where there is a general verdict for the plaintiff under a declaration containing two counts leading to the same liability, such verdict is sufficient if sustained under either count.”

Ridge was represented by attorney Maison Heidelberg.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Retaliation Against a Public Servant

Fri, 06 Mar 2020 20:57:00 GMT

Retaliation Against a Public Servant

Charged with retaliation of a public servant?

This lawyer sharpened his teeth on a jury trial involving an indictment of retaliation against a public servant. Hopefully, the appeal made District Attorneys and other local prosecutors look harder before presenting a case on, what I consider to be, an unconstitutional and unnecessary law. The statute is § 97-9-127, Mississippi Code Annotated, 1972. Several states adopted a similar type of law in 2008.

The opinion can be found here . In this case, law enforcement accused a woman of retaliation against a public servant (a felony) for simply alleging that a police officer raped her. Keep in mind, she only did this after a pattern of pullovers, detainment, and arrests by this officer. She spent several months in jail on a bond that was so high she couldn’t afford to bail out.

In Court, although “harm” was never proved, and the officer faced no public, professional, or personal damages, as evidenced by his own personal testimony during the trial, a jury found her guilty. After moving for a directed verdict when the state rested, as a matter of law, the trial judge would not entertain the argument that the State had failed in its presentation of the evidence. Therefore, I believe the Mississippi Supreme Court erred in their rationale not to reverse or remand the case.

Another case since this opinion is found in recent news . The lawyer makes the same argument I made before the Mississippi Supreme Court. This statute is unconstitutionally vague.

A Better Solution…

There is already a misdemeanor charge in Mississippi for making a false report. If an individual allegedly effects another persons’s income or earning capacity, then why not use the common law civil-action remedy of libel and slander? When you create a criminal action to “protect” government employees or witnesses from potential reputational “harm,” the criminal prosecution thereof seems inherently flawed. Scholars of law and history call this a “chilling effect.”

Possible Repercussions

To compare and contrast, cross-reference a free-speech case regarding a different kind of retaliation. Refer to this blog post here . In particular, please read the entire post and pay attention to the last paragraph, which I herein quote, “[…] when the government has an individual arrested as ‘political payback’ for exercising free speech, a Section 1983 claim can arise even if there was probable cause for the arrest.”

District attorneys and prosecutors need to be aware of the potential civil consequences of bringing this bill of information before a grand jury. Perhaps the State legislators should simply do away with this statute. Call Panter Law Firm, PLLC , if you have any questions.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Unwritten Contracts and Land Sales

Fri, 14 Feb 2020 22:19:00 GMT

Unwritten Contracts

Section 15-3-1 of the Mississippi Code lists several contracts that must be in writing in order to be valid. That law is known as the “statute of frauds,” and we wrote about that subject here.

In this post, we will look at the law regarding the sale of land in particular.

Section 15-3-1 states “An action shall not be brought whereby to charge a defendant or other party . . . upon any contract for the sale of lands . . . unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.”

To make that more simple, you cannot sue someone for breach of a contract to sell land unless there is a signed agreement in writing.

Seems simple enough. Even so, there are at least two situations in which the Courts will enforce an unwritten contract to sell land.

When the failure to enforce the verbal agreement would result in fraud or other inequitable conduct.

In Thompson v. First American Nat. Bank , 19 So.3d 784, 785 (Miss. Ct. App. 2009), Thompson claimed that a bank teller promised him that a foreclosure on his property would be stopped.

The Mississippi Court of Appeals held that the alleged verbal agreement was unenforceable under the statute of frauds.

But, that was not the end of the inquiry. The Court then looked to the question of estoppel.

The term “estoppel” is a legal bar to alleging or denying a fact because of one’s own previous actions or words to the contrary. The Thompson court explained:

An estoppel may arise from the making of a promise, even though without consideration , if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetuation of fraud or would result in other injustice.

Although this rule of law would allow a party to get around the requirements of the statute of frauds, the Court of Appeals concluded it did not apply to Thompson’s situation.

Imposition of a Constructive Trust

On February 4, 2020, the Mississippi Court of Appeals issued its opinion in White v. White . In that case, William White was having problems paying his mortgage on 22.5 acres of land.

So, he asked his mother, Patsy White, to help him. She agree to take over the mortgage payments, and William verbally agreed to transfer the land to her.

Patsy kept her end of the bargain. But, William then refused to transfer the land.

Patsy sued William in Chancery Court and asked that he be ordered to convey the land to her.

In reviewing the case, the Mississippi Court of Appeals first looked at the statute of frauds. Given the plain language of the statute, the Court ruled that Patsy’s claim was barred because it was not in writing.

The Court then turned to the claim for a constructive trust. “A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property.”

It is “a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.”

Examples of wrongful conduct that may justify imposition of a constructive trust include:

(1) fraud, actual or constructive

(2) duress

(3) abuse of confidence

(4) commission of wrong

(5) any form of unconscionable conduct, artifice, concealment, or questionable means

(6) any way against equity and good conscience.

In light of this law, the Court of Appeals sent the case back to chancery court to determine whether the facts supported the imposition of a constructive trust in favor of Patsy and against the land.

If you are trying to enforce a verbal agreement to sell land, it is worthwhile to have an attorney consider whether an exception to the statute of frauds applies.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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How can I clear my record?

Sun, 02 Feb 2020 17:12:00 GMT

How can I clear my record?

Clear my record

This is an overview of expungement law in Mississippi if you are wondering “can I clear my record?”

Discretionary expunction upon petition, notice, and hearing in municipal court

No disposition and mandatory expunction upon petition in municipal court

Withholding acceptance of guilty plea, non-adjudication terms, and mandatory expunction upon petition; including any and all cases with no disposition

(1)

(a) In all criminal cases, felony and misdemeanor, other than crimes against the person, a crime of violence as defined in Section 97-3-2 or a violation of Section 97-11-31, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging a misdemeanor of domestic violence as defined in Section 99-3-7(5), a circuit, county, justice or municipal court shall be empowered, upon the entry of a plea of guilty by the criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.

(d) No person having previously qualified under the provisions of this section shall be eligible to qualify for release in accordance with this section for a repeat offense. A person shall not be eligible to qualify for release in accordance with this section if charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f) or if charged with an offense under the Mississippi Implied Consent Law. Violations under the Mississippi Implied Consent Law can only be nonadjudicated under the provisions of Section 63-11-30.

(2)

(a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:

(i) Reasonable restitution to the victim of the crime.

(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.

(iii) Payment of a fine not to exceed the statutory limit.

(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment, successful completion of a program designed to bring about the cessation of domestic abuse, or any combination thereof, if the court deems treatment necessary.

(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.

(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of an effective evidence-based program or a properly controlled pilot study designed to contribute to the evidence-based research literature on programs targeted at reducing recidivism. Such program or pilot study may be community based or institutionally based and should address risk factors identified in a formal assessment of the offender’s risks and needs.

(3)

When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.

(4)

Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.

(5)

Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case. Miss. Code §99-15-26(1)

If you are wondering “can I clear my record,” call Panter Law Firm, PLLC to see what you qualify for. For general information about Mississippi courts, look here . For a neighboring jurisdiction, please check out this article here .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Can I expunge my record?

Thu, 30 Jan 2020 20:22:00 GMT

Can I expunge my record?

Expunge Your Record

You can expunge the record of certain convictions, and most arrests, by petitioning the court who had original jurisdiction. State laws define whether or not you can qualify. Remember, we are only discussing state arrests and convictions here.

For example, in Mississippi, you can expunge the convictions of felony bad check, simple possession of a controlled substance, felony false pretense, grand larceny, felony malicious mischief, and felony shoplifting. This is only for first offenses. In other words, subsequent offenses are not expungable.

A change in the law

The sentencing court once had plenary discretion to expunge felony convictions many years ago. However, that is not the current law. The previous list of crimes are the only felony convictions expungable by law now in the sentencing court. That being the case, you still have several options when trying to clear your record of misdemeanors and arrests, or otherwise regain your civil liberties.

If you were convicted of a misdemeanor, or pled guilty yet received a non-adjudication in which you had to follow certain terms set by the court (usually attending classes or remaining in good behavior), you will usually be able to get an expungement at the local level by petitioning the sentencing court.

Clean your record

Call us to expunge your record. Find out if you can get an expungement at (601) 607-3156 .

What if I can’t expunge my record? Even if you are not eligible for an expungement, you may have more options to restore lost rights. This includes voting rights, right to possess a firearm, hunting privileges, and more. Talk to an attorney to see what you qualify for. For general information about Mississippi courts, look here . For a neighboring jurisdiction, please check out this article here .

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Second Amendment Rights

Thu, 23 Jan 2020 21:19:00 GMT

Second Amendment rights

Is an Ounce of Prevention Worth More Than a Pound of Cure?

Yes. Normally I would agree with this statement. I believe it is better to brush your teeth regularly than have a dentist pull them out. How does this analogy apply to Second Amendment rights?

Why this does NOT work with gun laws…

Many people understand sobriety checkpoints during holidays in places of heavy population. It is likely that many people are celebrating, and have had a few drinks along with their food and merriment. A sobriety checkpoint is a preventative measure that many predict, and know to expect because they are using a public thoroughfare.

In the alternative, imagine this: a Senator in Mississippi recently wanted to red-flag any gun owner in Mississippi. This law was SB2055. Fortunately, the bill did not pass committee this last term. As everyone knows, guns are dangerous; but most lawfully abiding citizens follow the law and know proper gun safety precautions.

Lawless people do not care about laws.

Reasons against creating excessive legislation

Red-flagging or marking any and every gun owner in Mississippi creates problems, and the proposed legislation would have created a fruitless law wherein law enforcement could chase down shadows that don’t exist.

As you may have seen here, I have posted a blog about law enforcement agencies who take advantage of civil asset forfeiture laws. I have seen police confiscate property without due process of law, even when the underlying crime does not exist. Please look at one of our civil asset forfeiture blogs here and here . For a brief overview, check out this website here .

Following the Law

If you have a question about second amendment gun rights, civil rights and liberties, or have been accused of a crime, do not hesitate to call us.

Richard Poole Noel, III

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Civil Asset Forfeiture Attorney in Mississippi

Fri, 27 Dec 2019 17:30:00 GMT

Civil Asset Forfeiture Attorney

Arrested?

Civil Asset Forfeiture Attorney

Do you need an attorney to represent you or a loved one in Mississippi? Has somebody been accused of a crime and you need help? Has your money been seized? We might be able to help you…

How the process works

Once you have been arrested, under Mississippi law, the arresting agency can seize property you are in possession of. This is usually your cash or vehicle.

Time is of the essence! Contact an attorney immediately to fight for your rights! The law deprives you of due process, and takes away your property before you have even been convicted of any crime.

The new statutes provide a mechanism for an attorney to act quickly on your case. The way the statute reads makes the government serve you with a cause of action demanding a thirty day response.

What do I do now?

If you or anyone you know is in trouble, we will be happy to consult with you.

We also handle criminal defense cases, and often the best chance of getting your property back timely is for the attorney to handle both issues. One who has experience in handling these matters.

If you have any questions, call us to see if we can be of any assistance to you or someone you know. The following site provides more information. The website if not affiliated with this firm: Mississippi Center for Public Policy .

Richard Poole Noel, III

601-607-3156

https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion347.cfm

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New decision on award of attorney’s fees

Thu, 26 Dec 2019 16:00:00 GMT

Attorney’s Fees

On December 17, 2019, the Mississippi Court of Appeals issued its opinion in W-T Holdings, LLC d/b/a World World v. Gilchrist . The decision addressed the propriety of an award of attorney’s fees to Window World.

Facts of the case

Gilchrist hired Window World to install a number of windows in his house. The quoted price was $5,690.35. After the work was completed, Gilchrist was dissatisfied with the large picture window (the cost of which was more than 1/2 of the total contract price) and refused to pay.

Window World filed suit in county court for the contract price, attorney’s fees, collection costs, and interest.

County Court proceedings

Initially, Gilchrist filed a pro se Answer. He also filed a Counterclaim seeking $100,000 for damage to his credit, damage to his reputation, and mental fatigue.

He later hired a lawyer who amended the Counterclaim to seek only the cost of repair and proper installation of the large picture window.

At trial, the jury awarded Window World only $2,646. (A comparison of the parties’ contract reveals that this figure represented the price of the windows other than the large picture window.)

Motion for an award of attorney’s fees

After trial, Window World moved for expenses and attorney’s fees. Gilchrist did not dispute the award of expenses, but he did dispute the request for attorney’s fees.

More specifically, the parties’ contract stated:

Default/Collection Policy

In the event client defaults on Contract, they will be responsible to pay all collection cost, attorney fees, court cost, and all other expenses related to enforcing [the contract].

Window World’s attorney took the case on a contingency fee agreement that stated he would receive “50% of any sums recovered.”

Notwithstanding this, Window World’s attorney submitted “billing statements” for him and his law clerk. The statements for the attorney added up to $27,450, and those for the law clerk $10,875.

Thus, having obtained a jury verdict of $2,646, Window World sought legal fees of $38,325 on top of that. Window World that such an award would be “reasonable.”

Window World’s counsel also argued that the County Court should increase this amount by a multiplier of two because he took the case on a contingency fee basis. ( More about this in a moment .)

Gilchrist’s attorney responded by stating:

“To be sure, we have a detailed record of the lawyer’s time sheets, but that alone does not tell us that the client (Window World) actually paid those (or owes those by contract with its attorney). While the Attorney’s Fee Affidavit submitted by [counsel] includes an itemization of his time, it never actually says that he charged Window World $38,325 for his services.”

In rebuttal, Window World contended that “the issue regarding fees is whether they are reasonable, not how much the client actually paid.”

The county court announced its ruling from the bench and subsequently entered a written order. But, as the Court of Appeals noted, “neither the oral ruling nor the written order provided any analysis or explanation. The court simply awarded $23,400 for attorneys’ fees—$18,400 for [counsel’s] work and an additional $5,000 for [the law clerk’s] work.”

Gilchrist appeals to Circuit Court

On appeal, Gilchrist again advanced the position that Window World could only recover the fees it actually incurred , which was 50% of the $2646 awarded by the jury.

As the Court of Appeals noted, “Window World’s response brief in the circuit court did not dispute Gilchrist’s characterization of the record or the amount of fees that it had actually incurred. Instead,Window World simply asserted that the county court’s award was ‘reasonable’ and not an ‘abuse of discretion.’ ”

The Circuit Court agreed with Gilchrist. The Court reversed the county court and rendered an amended judgment, holding:

[T]he attorney fee submissions by [Window World] were not based on the actual amount of the services…. As a result, the Court finds that . . . the post-verdict award of fees and costs made by the trial court without any explanation of the accounting is not supported by the evidence. Accordingly, the Court hereby reverses the county court’s judgment and hereby renders it to include . . . the actual amount of attorney’s fees incurred by Window World as a result of the 50% attorney fees agreement ….”

Thus, the Circuit Court reduced the award of fees to $1323.

Window World moves for reconsideration

Window World filed a motion for reconsideration in the Circuit Court and argued, for the first time, that “Window World did in fact incur said fees.”

To support this new claim, Window World submitted a new affidavit from its owner stating that the company had “incurred attorney’s fees related to enforcing the terms of the contract in the amount of $45,175.00.” He also stated that during the course of the litigation, he reached a new agreement with his attorney that “the case would proceed on an hourly fee agreement.”

Gilchrist moved to strike the Affidavit on the grounds that (i) the appeal was on the record and a party cannot add to the record by submitting new evidence and (ii) the affidavit of Window World’s owner that he agreed to replace the contingency fee agreement with an hourly rate one was contrary to what Window World told the County Court.

Indeed, as noted above, at the County Court level, Window World asked that the fee be increased for the specific reason that its counsel took the case on a contingency fee basis.

Window World responded that “an hourly fee agreement can be contingent on the outcome of the case.”

The Circuit Court granted the motion to strike, holding that:

(i) the affidavit was improper because the appeal was solely on the record made in the County Court; and

(ii) this was the “first mention” of any claim that Window World and its attorney had converted their contingency fee contract to an hourly rate agreement.

Now, Window World appeals

Window World raised five issues on appeal:

1. The Circuit Court erred by applying a de novo standard of review instead of an abuse of discretion standard of review.

2. The Circuit Court erred by applying the law on open accounts to a breach of contract case.

3.The Circuit Court erred by striking the affidavit of Window World’s owner after it decided to review the matter de novo without a hearing.

4.The County Court did not abuse its discretion in awarding attorney’s fees.

5.The Circuit Court erred by failing to take into consideration the fact that Window World defeated a $100,000 counterclaim when determining attorney’s fees.

The Court of Appeals found it unnecessary to address first two issues because “the present appeal is primarily from the ruling of the county court rather than from the circuit court, which court had the role of an intermediate appellate court.”

“Therefore, any alleged errors in the circuit court’s legal analysis should not, in any way, impact this Court’s analysis of whether or not the county court erred in the present case. In other words, this Court reviews the decision of the county court without any deference to the analysis of the circuit court.”

“As to the third issue, we hold that the circuit court did not err by striking the new affidavit of [Window World’s owner].” An appeal from county court to circuit court must be decided “solely upon the record as made in the county court. Miss. Code Ann. §11-51-79 (Rev.2019); accord UCRCCC 5.01.”

The fourth and fifth issues raised by Window World focused upon the actual award of attorney’s fees.

The Court of Appeals began by noting that “the only basis for an award of attorneys’ fees in this case is the parties’ contract. Therefore, attorneys’ fees are recoverable only to the extent that they are permitted by the language of the contract.”

Gilchrist argued that the provision permitted Window World to recover only attorneys’ fees it actually incurred to enforce the contract.

Window World, on the other hand, argued that it is entitled to recover “reasonable” attorneys’ fees based on the hours and hourly rates claimed by its attorney and his law clerk — regardless of whether Window World actually paid or owed those amounts.

The Court noted that the parties disagreed regarding the meaning of this provision, but “[t]he mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.”

In the final analysis, the Court of Appeals held that “the relevant provision of the parties’ contract permits Window World to recover only the actual attorneys’ fees that it incurred to enforce the contract. Nothing in the language of the provision suggests that it imposes liability on the customer for nonexistent ‘fees’ that Window World never actually incurred or owed to anyone.”

Finally, the Court rejected Window World’s argument that the circuit court erred by not considering Gilchrist’s “$100,000 counterclaim.”

The Court held that Window World’s agreement with its attorney did not provide for any such “reverse contingency fee,” and there was no evidence that Window World incurred $50,000 in attorneys’ fees.

“Moreover, Window World’s contract with Gilchrist did not require” Gilchrist to pay attorneys’ fees related to such a counterclaim.

Thus, the Court of Appeals affirmed the ruling of the Circuit Court and limited Window World to fees of $1323.

The reverse contingency fee

As noted, the Court of Appeals referred to such a concept. Here is a link to an ethics opinion from the District of Columbia on this subject:

Have you been charged with a crime?

Wed, 18 Dec 2019 17:20:00 GMT

Have you been charged with a crime?

Criminal Accusations?

Have you been charged with a crime? Consult an attorney.

False Impressions and Allegations

Many people have seen movies or TV shows dramatizing a criminal trial. In fact, many people may remember televised trials, such as the O.J. Simpson case.

These dramatizations, televised trials, and news clips are merely a glimpse at the complexity and intricacies of a criminal case.

And, of course, the underlying allegations in any case may also be misleading and confusing to the accused.

Your Rights

“You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.”

United States v. Plugh , 648 F.3d 118, 127 (2d Cir.2011)

These are Miranda rights.

The Trial Procedure

In Mississippi,Circuit Courts preside over Felonies. Although a municipality (city), Justice Court, or County Court may initially have jurisdiction over a preliminary hearing (for example, to establish legal custody; set bond) the Circuit Court will have jurisdiction over the sentencing.

For traffic violations and misdemeanors, a Municipality or Justice Court will have jurisdiction over the entire process. You have the right to appeal if you A) don’t take a plea, and B) lose at trial.

Hire an attorney

Whether you have been charged with a felony, misdemeanor, or traffic violation, your odds of getting the best outcome depends on hiring a lawyer. One who has experience in handling these matters.

If you have any questions, call us to see if we can be of any assistance to you or someone you know.

Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

601-607-3156

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Social Security Disability Step-by-Step

Mon, 16 Dec 2019 19:21:00 GMT

Social Security Disability: Step-by-Step

Social Security Attorney

Did you apply for disability? Has it become impossible to work because of your disabilities? Apply for social security disability. This money has been coming out of your paycheck all these years you’ve worked. It’s your money! If you have been denied your benefits, call us at Panter Law Firm, PLLC at 601-607-3156.

It is essential to act quickly to obtain a hearing date as soon as possible. It is not uncommon for these matters to take several months to resolve.

Filing for social security benefits (SSDI)

The first step is to see if the the Social Security Administration approves your claim upon initial filing. The social security administration can guide you through this initial process, but if you have any questions, please do not hesitate to call us at 601-607-3156.

Denied?! Your Right to a Hearing

If you are denied, HIRE AN ATTORNEY! Social Security Disability attorneys know how to help you gather and present all relevant evidence you may not have included when you initially filed. You have the opportunity for a hearing with an Administrative Law Judge after you are denied. You can re-file, but it is in your best interest to present your case before one of these judges as soon as you receive your denial letter.

Why do you need representation? Well, attorneys are very familiar with the law and know what needs to be presented for a judge to determine the nature of your disability.

Denied again?!

Discuss with your attorney whether it would be in your best interest to file a new claim (re-file), or appeal the decision of the Administrative Law Judge. There is a narrow window of time, so as soon as you were denied after the hearing, talk to your attorney.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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30(b)(6) Depositions

Thu, 14 Nov 2019 21:24:00 GMT

30(b)(6) Deposition

In federal court, a party may take a deposition of an organization under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The Rule states in relevant part:

The “matters for examination” are commonly called “topics” and are listed in the deposition notice.

Generally speaking, when the named organization designates one or more persons to testify on its behalf, the organization is bound by the testimony.

Is the person taking the 30(b)(6) deposition limited by the topics in the deposition notice?

Over the years, I have frequently heard a lawyer for the organization object to a question because “it goes beyond the topics in the notice.”

Is this a valid objection? For some time, the answer seemed to be “yes”.

Today, however, the majority of courts permit the lawyer taking the deposition to go beyond the topics and inquire as to any other discoverable facts the witness may know. See American General Life Insurance Company v. Billiard , 2010 WL 4367052 (N.D. Iowa Oct. 28, 2010) and the cases collected therein.

I have not located a Fifth Circuit decision on this issue, but in 2015, the United States District Court for the Western District of Texas reached the same conclusion:

See Rivas v. Greyhound Lines, Inc. , 2015 WL 13710124 (W.D. Tex. April 27, 2019) and the cases collected therein.

Citing a decision from the Southern District of Florida, the district court explained that the Rule is best read as follows:

1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice.

2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions, etc. The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are “known or reasonably available” to the corporation. Rule 30(b)(6) delineates this affirmative duty.

3) If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern ( i.e. , Fed. R. Civ. P. 26(b)(1) ) , so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).

4) However, if the deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party’s problem.

The case law does, however, support the proposition that the organization will not necessarily be bound by answers to questions that go beyond the topics. To hold otherwise would allow the deposing attorney to “ambush” the organization with questions for which the organization and its witness were unable to prepare.

Mississippi courts

I have not located any Mississippi state court case addressing this issue. But, the Mississippi Rules of Civil Procedure are modeled on the federal rules, and federal court cases interpreting the federal rules are often relied upon by state courts when interpreting the state rules.

Suggested practice pointer.

I suggest the following topic be included in any 30(b)(6) deposition notice:

“Any other non-privileged facts known by the designated witness that are relevant to the parties’ claims and defenses. See Rivas v. Greyhound Lines, Inc. , 2015 WL 13710124 (W.D. Tex. April 27, 2019) and the cases collected therein.”

In that way, opposing counsel cannot argue surprise.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Age Discrimination Claims

Fri, 25 Oct 2019 21:01:00 GMT

Age Discrimination

On October 25, 2019, the Fifth Circuit Court of Appeals handed down its decision in Gill v. DIRTT Environmental Solutions Incorporated . In doing so, the court reiterated the legal principles governing claims for age discrimination in the workplace when the employee’s evidence is only circumstantial.

Facts in Gill

In 2005, DIRTT hired Gill as its government sales director to work with its sales representatives to secure government contracts. In 2014, DIRTT hired Antoinette “Toni” Pahl to be Gill’s co-director of government sales.

Gill alleged that DIRTT discriminated against her based on her age when it fired her in favor of Pahl, who is ten years younger than Gill.

However, from 2013 until Gill’s termination in 2015, DIRTT received numerous complaints from Gill’s coworkers, including Pahl, regarding her professional misconduct.

Based on these demonstrations of unprofessional behavior and Gill’s refusal to comply with company standards, DIRTT terminated Gill’s employment.

Gill proceeded to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that DIRTT discriminated against her because of her age. The EEOC mailed Gill a notice of right to sue.

The district court action.

Gill filed suit in federal district court asserting a claim under the federal Age Discrimination in Employment Act (“ADEA”). (Gill also sued under a similar Texas law, but this post will only address federal law.)

DIRTT filed a motion for summary judgment, arguing that even if Gill could make a prima facie case of discrimination, DIRTT had a legitimate, nondiscriminatory reason for terminating Gill, and Gill could not demonstrate that the reason was pretextual.

The district court agreed and granted summary judgment to DIRTT.

The Fifth Circuit affirms.

When an employee brings an age discrimination claim under the ADEA based only on circumstantial evidence, federal courts employ the McDonnell Douglas three-step burden-shifting framework.

First, the employee must prove a prima facie case of discrimination. In a typical case, this can be done by proving that the employee:

(1) was discharged;

(2) was qualified for the position;

(3) was within the protected class at the time of discharge (that is, 40 or older); and

(4) was replaced by someone either (i) outside the protected class or (ii) younger or was otherwise fired based on age.

If the employee makes out a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision.

Finally, if the employer meets its burden, the burden shifts back to the employee to show that the reason was “merely a pretext for discrimination.”

In Gill , the parties essentially conceded that Gill had established a prima facie case and that DIRTT had proven a legitimate, non-discriminatory reason for firing her.

The Fifth Circuit’s focus, then, was upon whether Gill had met her burden of proving that DIRTT’s purported reason for firing her was merely pretextual and that her age was the real reason.

Pretext may be shown through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.

Gill’s evidence of pretext was insufficient.

First, Gill argued that DIRTT’s failed to investigate her claims in accordance with its Code of Conduct and Values. Although the Fifth Circuit had previously said “whether the employer followed its typical policy and procedures in terminating the employee” might be an “indicium of causation,” it later said this inference may be appropriate only if the plaintiff establishes some nexus between employment actions and the plaintiff’s age.

Therefore, a defendant’s failure to follow its own policy is not probative of discriminatory animus in absence of proof that the plaintiff was treated differently than other employees outside of the protected class.

Second, Gill argues that DIRTT misrepresented to the EEOC that it conducted an investigation. The court acknowledged that “we have held that erroneous statements in an EEOC position statement may be circumstantial evidence of discrimination.” But, here the Court found no such erroneous statements.

Finally, Gill asserted that DIRTT did not rely upon the complaints against her in good faith because DIRTT did not investigate any of the complaints or notify Gill of them.

The Fifth Circuit agreed that an employer needs to make a “reasonably informed and considered decision before taking the complained-of action” but that the employer need not leave “no stone unturned.”

Further, “we do not require an employer to make such an objectively verifiable showing to hold that the employer acted in good faith. Our discrimination laws do not require an employer to make proper decisions, only non-retaliatory ones.”

Thus, the Fifth Circuit affirmed the decision of the district court to dismiss Gill’s case.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Mississippi Legislation 2019 – Part 1

Thu, 10 Oct 2019 18:58:00 GMT

Mississippi Legislation 2019

Mississippi Legislation 2019: The Mississippi legislature works every year to make laws or modify them. The following are a few 2019 updates concerning civil rights and liberties.

Criminal Justice Reform

The first notable legislation is HB 1352, short title Criminal Justice Reform Act. This bill’s intent is to help formerly incarcerated individuals return to their family, friends, and community; and not as a burden, but as a benefit by clearing hardships created by their status and time-length imprisoned.

In addition, SB 2781, titled “Mississippi Fresh Start Act,” prohibits professional licensing regulatory agencies and organizations from using vague language such as “good character” and “moral turpitude” for licensing qualifications and reinstatement.

Invasive Law Enforcement tactics

In the current and growing world of technology, many people have qualms about the dwindling of personal privacy. Major news networks harp on the term “surveillance state.” Obviously criminals must be brought to justice, but there ought to exist a balance between unconstitutional invasive investigation and appropriate investigation.

Who all has heard of a cell site simulator device? Commonly known as “Stingray,” this device forces compatible cell phone devices to disconnect from their service provider in order to extract information from the target cell phone. House Bill 85 would have required a warrant before law enforcement implements this device to emulate a call tower to, more or less, spy and track anyone. House Bill 85 died in Judiciary B committee. My guess is that we will probably be seeing some version of this bill show up next term.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Social Security Disability Representation

Fri, 04 Oct 2019 16:20:00 GMT

Social Security Disability Representation

Social Security

Do you need an attorney to help you with your social security disability claim? If you were denied, waste no time and call us at Panter Law Firm, PLLC at 601-607-3156.

Administrative Law Judge Hearing

Consider this: an Administrative Law Judge is a federal judge whose sole duty is to handle disability claims. They are very familiar with the law and need to determine the nature of your disability.

A Brief Story…

I have been fortunate to help people in need. Recently, we represented a gentleman who, although young, had severe disabilities. We were able to get a fully favorable decision.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Title VII, sexual orientation and transgender status

Fri, 04 Oct 2019 16:09:00 GMT

Title VII, sexual orientation, and transgender status

On October 8, 2019, the United States Supreme Court will hear oral argument on the question of whether Title VII bars discrimination in the workplace on the basis of sexual orientation and/or transgender status.

The Court will take up three cases. Those are:

The essential question raised by the three cases is whether Title VII’s prohibition against discrimination “on the basis of sex” extends to sexual orientation and transgender status.

There is a split of authority among the Circuit Courts, and the Supreme Court’s ruling should, in the near future, resolve the issues.

Update: In June of 2020, the United States Supreme Court ruled that Title VII does indeed prohibit discrimination on the basis of sexual orientation and/or transgender status.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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At-will employment and jury duty

Fri, 27 Sep 2019 18:45:00 GMT

Jury Duty

The rule of at-will employment is firmly ingrained in Mississippi law. The rule means that, unless an employee has an employment contract, she can be fired for a good reason, a bad reason, or no reason at all (as long as the firing does not violate federal anti-discrimination laws).

Over the years, the Mississippi Supreme Court has adopted a few exceptions to this rule. You can read about them here: /2017/11/13/exceptions-mississippi-at-will-employment-s-craig-panter/

On September 27, 2019, the United States Court of Appeals for the Fifth Circuit announced another (albeit narrow) exception in Simmons v. Pacific Bells, LLC.

The facts of Simmons

Max Simmons began working for a Taco Bell restaurant operated by Pacific Bells in February 2017. In mid-July 2017, Simmons received a jury summons requiring him to appear on July 31.

Simmons says that he told his supervisor, Henderson, about the summons soon after receiving it. According to Simmons, Henderson instructed him to “find a way to get out of jury duty.”

Simmons instead requested time off for jury duty, as well as two additional days so that he could visit family. He made these requests two weeks in advance.

Despite this request, Henderson scheduled Simmons to work. In response, Simmons kept reminding Henderson of his jury summons and kept requesting time off.

Simmons showed up for jury duty was selected. He served from August 1 through August 8, 2017. When he returned to work, Henderson told Simmons that he was fired due to his tardiness.

Discovery revealed an email written by Henderson stating: “I have several routes I can go with his termination. The ones I want to focus on will be excessive tardiness or changing time in [the time-keeping] system.”

Simmons files suit.

Simmons filed suit against Pacific Bells, alleging that his termination violated Mississippi law and public policy. Specifically, Simmons alleged that his termination due to tardiness was pretextual and that he was really fired for refusing to lie to avoid jury duty and for his subsequent jury service.

Pacific Bells moved for summary judgment, arguing that Mississippi law does not permit a private cause of action for employees terminated because of jury service.

The district court agreed with Pacific Bells and dismissed the case.

The Fifth Circuit reverses.

In its opinion, the Fifth Circuit noted that Miss. Code Ann. § 13-5-35 prohibits employers from persuading or attempting to persuade any juror to avoid jury service or subjecting an employee to an adverse employment action as a result of jury service.

Mississippi law also provides a “narrow public policy exception to the employment at will doctrine . . . [for] an employee who refuses to participate in an illegal act.” McArn v. Allied Bruce-Terminix Co ., 626 So. 2d 603, 607 (Miss. 1993).

The first issue, then, was whether Mississippi law provided Simmons with a private cause for action for termination in violation of Section 13-5-35.

Finding no Mississippi state court opinions on the subject, the Fifth Circuit was required to make a judgment call as to what a state court would say on the issue. (This process is referred to as an “ Erie -guess”.)

Looking at other Mississippi Supreme Court decisions involving at-will employment, the Fifth Circuit concluded that Simmons could indeed sue Pacific Bells for wrongful termination.

The Court then turned to the question of whether Simmons had sufficient evidence to create a jury issue as to whether he was fired for the events surrounding his jury service.

The Fifth Circuit concluded “the timing of Simmons’s termination, combined with the arguably pretextual rationale for his firing, could lead a reasonable jury to conclude that he was fired as a result of his refusal to lie to avoid jury service.”

Simmons “only needs to demonstrate that Henderson’s recommendation caused his termination and that her recommendation was motivated by his refusal to lie.”

Thus, the case was remanded to district court for a jury trial.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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The “minutes rule” bites back

Mon, 09 Sep 2019 22:49:00 GMT

Government Contracts and Minute Books

For well over a century, the Mississippi Supreme Court has consistently held that public boards speak only through their minutes and that their acts are evidenced solely by entries on their minutes.

This rule applies to contracts between public boards and private citizens. The public board simply is not bound by any purported contract if the adoption of that contract and its essential terms are not reflected in the board’s minutes.

Over the years, many a city, county and other public board has been able to avoid liability on a contract by invoking the minutes rule.

Indeed, even when the private party has partially performed the contract, the minutes rule can be invoked to deny the private party payment. See, e.g., Williamson Pounders Architects v. County , 597 F.3d 292, 296 (5th Cir. 2010).

The worm turns.

From 2009 to 2014, Horne, LLP served as the auditor for the Natchez Regional Medical Center, a community hospital owned by the Adams County Board of Supervisors.

Horne’s services were provided pursuant to a series of engagement letters with the Medical Center. Each of those engagement letters contained an arbitration clause.

In 2014, the Medical Center filed for bankruptcy. The Bankruptcy Court appointed Kenneth Lefoldt as its trustee. Acting in this capacity, Lefoldt filed suit against Horne, contending that Horne was guilty of professional malpractice when it failed to detect significant flaws in the Medical Center’s financial controls.

Horne moved to stay the lawsuit so that the parties could arbitrate. The Medical Center balked, pointing out that its minutes did not reflect any agreement to arbitrate.

The district court agreed with the Medical Center and denied Horne’s motion.

Alright, then.

Given the applicability of the minutes rule, Horne moved for summary judgment.

As Horne explained, the Medical Center must prove the existence of a professional relationship in order to prevail on its malpractice claim. Horne argued that since the engagement letters were void under the minutes rule, the Medical Center invalidated the basis for that relationship.

This time, the district court agreed with Horne and granted summary judgment.

The Fifth Circuit affirms.

In its opinion, the Court began with the requirements of proving accounting malpractice:

“Mississippi law requires that a plaintiff in an accounting malpractice case prove by a preponderance of the evidence the existence of a professional relationship.”

“A plaintiff may satisfy this burden in one of two ways. It may demonstrate that the parties entered into a contract. Or it may show that the parties were in privity with one another, such that the accountant assumed a duty to handle the plaintiff’s delineated interests with professional competency and care.”

Invoking the minutes rule, the Fifth Circuit held that “the Medical Center never formed a contract with Horne to perform the four audits.”

So, for the Medical Center to survive summary judgment, it had to show that it was in privity with Horne. Specifically, “the Medical Center must prove that it manifested its intent to engage Horne’s services and that Horne either consented to provide those services or failed to manifest its lack of consent, while reasonably knowing that the Medical Center would rely on Horne to perform.”

The Fifth Circuit acknowledged that there were significant indications that the parties actually created a professional relationship (including Horne’s actual performance of four audits).

But, although this evidence would have been sufficient to overcome summary judgment in a suit involving private parties, the fact was that “the Medical Center is a community hospital run by a public board and therefore subject to Mississippi’s minutes rule.”

“As such, the Medical Center is limited in the type of evidence that it can use to prove its intent to maintain a professional relationship with Horne.”

Under Mississippi’s minutes rule, a public board “speaks and acts only through its minutes.” The minutes are the “sole and exclusive evidence of what the board did” in its official capacity.

Because the minutes submitted by the Medical Center made no mention of doing any business with Horne beyond the 2009 engagement letter, the district court was right to conclude that the Medical Center failed to offer any competent evidence that it was in privity with Horne.

Thus, Horne was entitled to summary judgment.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Improvements to Real Property

Mon, 05 Aug 2019 16:20:00 GMT

Improvements to Real Property

Improvements to Real Property – when payment is due.

Section 87-7-3 of the Mississippi Code applies to all payments due to a contractor under all construction contracts (excluding public construction contracts).

With respect to partial, progress or interim payments, they must be paid whenever the parties’ contract says they are due. If such payments are not made within thirty (30) days of the due date, they bear interest from the due date at the rate of one percent (1%) per month.

Final payment is due upon the earliest of these three events:

(i) At the completion of the project or after the work has been substantially completed in accordance with the terms and provisions of the contract;

(ii) When the owner beneficially uses or occupies the project except in the case where the project involves renovation or alteration to an existing facility in which the owner maintains beneficial use or occupancy during the course of the project; or

(iii) When the project is certified as having been completed by the architect or engineer authorized to make such certification, whichever event shall first occur.

Again, if the final payment is not made within thirty (30) days of the due date, it bears interest from the due date at one percent (1%) per month.

Note: In no event shall the final payment due the contractor be made until the consent of the contractor’s surety has been obtained in writing and delivered to the proper contracting authority.

Rights of subcontractors and material suppliers

Pursuant to Section 87-7-5, when a contractor receives any payment from the owner, the contractor shall pay each subcontractor and material supplier in proportion to the percentage of work completed by each such subcontractor and material supplier.

If for any reason the contractor receives less than the full payment due from the owner, the contractor shall be obligated to disburse on a pro rata basis those funds received, with the contractor, subcontractors and material suppliers each receiving a prorated portion based on the amount due on the payment.

If the contractor without reasonable cause fails to make any payment to his subcontractors and material suppliers within fifteen (15) days after the receipt of payment from the owner under the construction contract, the contractor shall pay to his subcontractors and material suppliers, in addition to the payment due them, a penalty in the amount of one-half of one percent (½ of 1%) per day of the delinquency, calculated from the expiration of the fifteen-day period until fully paid. The total penalty shall not exceed fifteen percent (15%) of the outstanding balance due.

Note : Section 87-7-5 does not apply to contracts for the construction of single-family dwellings.

Choice of law provisions

In 2018, Section 87-7-9 went into effect. It applies to construction contracts that meet these three conditions:

1. The contract was entered into on or after July 1, 2018;

2. At least one party to the contract is a Mississippi resident; and

3. The contract is between any two or more of the following persons and no others : the owner of the real property improved or to be improved, a contractor, subcontractor, materialman or design professional.

Under this statute, if all three conditions are met, then a provision in any contract, subcontract, or purchase order for the improvement of real property in this state, or to provide materials therefore, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process be located in another state.

On a related matter, read here about Mississippi’s New Home Warranty Act.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Denied Social Security Benefits in Mississippi?

Mon, 29 Jul 2019 15:37:00 GMT

Denied Social Security Benefits in Mississippi?

Denied Benefits?

If you were denied social security disability claim (SSDI), call us at Panter Law Firm, PLLC . Our number is (601) 607-3156 . You can appeal your case if you were denied. Time is important. The sooner you call, the better your chances of obtaining your benefits.

A Proven Record

At The Panter Law Firm, PLLC , we can help you in any county of any state. We primarily represent hard-working Mississippi residents, but we are happy to discuss any legal issue you may have. As professionals, we take pride in our ability to help earners collect all the money they are owed.

The Advantage of Hiring a Laywer

An administrative hearing is often brief and informal. BUT THIS IS YOUR DAY IN COURT! Hire an attorney to make sure that all relevant information is produced as evidence at the hearing, and to make sure you are prepared.

Article by Richard Poole Noel, III

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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DUI options? What are your options for DUI?

Fri, 26 Jul 2019 14:26:00 GMT

What are your options for DUI? Consider the following…

DUI options

A general overview of driving under the influence is previously discussed here . As well, a discussion of roads blocks is found here . This article focuses only on driving under the influence of alcohol, and does not apply to driving under the influence of other intoxicants.

DUI non-adjudication

In 2014, the Mississippi Legislature created legislation which provides new options for those charged with DUI involving alcoholic beverages. In general, non-adjudication refers to the court of jurisdiction withholding a conviction in lieu of the defendant adhering to terms and conditions imposed by the court.

Under the DUI non-adjudication statute, the Department of Public Safety suspends your license for 120 days. In the alternative, you can apply for an interlock-restricted license . This requires installation of an ignition-interlock device in your vehicle. The ignition-interlock device is simply a breathalyzer requiring you to blow under the legal limit to start your vehicle.

After the suspension, with the terms and conditions of the non-adjudication complete, there will be no record of the charge. It is as if the offense had never happened.

Qualifying for a DUI non-adjudication

Non-adjudication requires the applicant to qualify certain conditions. Mississippi Code Annotated, Section 63-11-30(14), spells out these qualifications.

First, the applicant has to complete all terms and conditions imposed by the court. This includes mandatory attendance at an alcohol safety education program. Also, this includes payment of “fines, penalties, and assessments,” in addition to a $250 fee for the Interlock Device Fund to the State Treasury. The Court of jurisdiction requires an applicant or their attorney to notify the court that the applicant has completed the terms and conditions.

Eligibility is only available to non-commercial drivers. This statute can not apply to commercial driver’s license holders.

Further, eligibility is only available to first-time offenders. This must be the first DIU you are pleading guilty to or have been found guilty of (and that it is also the first time applying for non-adjudication).

Additionally, the statute requires a “justification as to why non-adjudication is appropriate.” This is typically a hurdle that is overlooked. In Mississippi, there is little public transportation. Usually judges recognize the ability to drive is vital to a person’s income and productivity.

Hire an attorney

This article is for information purposes only. Please see an attorney to explore if you have any other options. Although you may qualify for non-adjudication, you have the right to a trial. You also have the right to appeal. You waive these rights when you seek non-adjudication.

If you have any questions, call us to see if we can be of any assistance to you or someone you know.

Richard Poole Noel, III

601-607-3156

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Invoking “the Rule” at depositions

Tue, 23 Jul 2019 20:52:00 GMT

Invoking the rule

The practice of law in the court system is subject to a multitude of rules. There are rules of civil procedure, of evidence, and of appeals, just to name a few. There is one, however, that is simply known as “the rule.”

“The rule” (more formally known as the exclusionary rule) refers to the practice whereby trial witnesses are excluded from the courtroom until it is their time to testify. The rule does not apply to witnesses who are either parties or experts, but it generally applies to all other witnesses.

Pre-trial depositions

Prior to trial, parties often take a deposition under oath of potential trial witnesses. The question frequently arises as to whether the rule can be invoked to exclude other persons from attending the deposition.

The answer varies depending upon whether the lawsuit in question is pending in state court or federal court.

State court practice

In Mississippi state court, the rule can be found in Rule 615 of the Mississippi Rules of Evidence. Rule 615 states:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; or

(It is subpart (c) that is used to permit expert witnesses to remain in the courtroom.)

With respect to the taking of depositions, Rule 30 of the Mississippi Rules of Civil Procedure states that the examination of witnesses at a deposition “may proceed as permitted at the trial.”

Because Rule 615 is applicable “at the trial,” lawyers generally take the position that non-party/non-expert witnesses may be excluded from attending the deposition of another witness.

In my experience, most lawyers agree with this, and if it is necessary to involve a state court judge, the judge is likely to invoke the rule.

Federal court practice

Rule 615 of the Federal Rules of Evidence is almost identical to Mississippi’s Rule 615 regarding the exclusion of witnesses at trial.

Rule 30 of the Federal Rules of Civil Procedure, however, is worded differently than Mississippi’s Rule 30.

Federal Rule 30 provides that “the examination and cross-examination of a deponent proceed as they would at trial under th e Federal Rules of Evidence , except Rules 103 and 615 .” Thus, “the rule” does not apply to a federal court deposition.

Even so, Rule 26 of the Federal Rules of Civil Procedure grants a federal district court the power to enter protective orders placing limitations on discovery, including “designating the persons who may be present while the discovery is conducted.”

Thus, although the rule does not automatically apply to a federal court deposition, the federal court has the power to invoke it for good cause.

The United States Court of Appeals with the Fifth Circuit has explained, however, that a party seeking such a protective order has the burden to “show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Intern., Inc. , 134 F.3d 302, 306 (5th Cir. 1998).

The Fifth Circuit explained: “In this case, MCC made nothing more than a conclusory allegation that a substantial majority of the fact witnesses in the underlying litigation are employees of Terra and that they will therefore be subject to Terra’s influence and will be inclined to protect each other through a sense of camaraderie.”

That was not enough to justify the protective order.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Driving under the influence of alcohol or other substances – Part 1

Sun, 21 Jul 2019 16:23:00 GMT

I was accused of driving under the influence of alcohol or other substances. What do I do now?

Drunk Driving

Many people are confused about DUI laws. The law states that it is illegal to operate a motor vehicle under the influence of alcohol and drugs. Alcohol and marijuana are the easiest to detect by law enforcement officers. Consider the following…

From the top

In a stop for a traffic violation, which could be swerving on the road, distracted driving ( i.e. texting and driving), improper equipment ( e.g. tail light is out), reckless driving, or erratic braking, the officer can blue light you and pull you over for a traffic violation. When this happens, the officer approaches your vehicle and asks for your driver’s license and proof of insurance. You should have these items readily accessible. An officer usually approaches your driver’s side window, but may go to the passenger side window for their own safety against oncoming traffic.

Gathering evidence

The officer assesses your behavior, such as slurred speech, body movement, and aroma; any type of suspicious visual, auditory, and scent available to the senses; gross observation. The officer asks questions. The officer may use this information against you in a court of law.

Next, the officer can conduct a field sobriety test, called specific observation. The officer asks you to step out of the vehicle. Usually the first test is a horizontal gaze nystagmus test, which offers clues that the person may be intoxicated. The officer asks for you to stand on one leg, and also asks for you to walk a line, toe to heel, to observe your balance.

KEEP IN MIND THAT DURING ANY PART OF THIS PROCEDURE, YOU CAN REQUEST THE ASSISTANCE OF AN ATTORNEY.

Finally, the officer can conduct chemical tests, such as a breath, blood, or urine analysis. For blood or urine, the officer must call a local magistrate to obtain a warrant. Implied consent means that they may use a portable breathalyzer to see the BAC (blood alcohol content) from your breath. By statute, .08% or higher means that you are legally intoxicated. For most people, this translates to two or three alcoholic beverages over the period of an hour. However, these devices are not fail-proof, and must be calibrated.

Arrested and at the station…

If you are arrested under suspicion of DUI/DWI, the officer may ask you to use the Intoxilyzer 8000 when you get back to booking. This also has to be regularly calibrated. You can refuse either or both of the breathalyzer tests. There may be consequences, though. Mississippi courts take driving under the influence of alcohol or other substances very seriously.

When you have any questions, call us to see if we can be of any assistance to you or someone you know.

Richard Poole Noel, III

601-607-3156

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Government retaliation against political candidates

Fri, 19 Jul 2019 16:57:00 GMT

Free Speech and Political Candidates

In Griggs v. Chickasaw County, Mississippi , the Fifth Circuit Court of Appeals again issued an opinion on the subject of government retaliation for the exercise of free speech.

We previously wrote on these topics here and here .

Today, we look at a situation in which a local government fired an employee because he intended to run for office against the local government’s favored candidate.

The facts in Griggs

Griggs worked as Chickasaw County’s Solid Waste Enforcement Officer for fifteen years without receiving any complaints about his job performance. His duties related to illegal dumping of waste, including investigations, searches, identifying the violator, ensuring proper cleanup, and going to court.

Griggs applied for grants each year to fund his work, and grants from the Mississippi Department of Environmental Quality supported at least half of his salary.

In 2015, Griggs decided to run for Sheriff of Chickasaw County as an Independent. In July 2015, Griggs spoke with Anderson McFarland, a member of Chickasaw’s five-member Board of Supervisors, about his campaign.

Supervisor McFarland asked if Griggs was “going to pull out” of the sheriff race. Griggs answered “no”.

Supervisor McFarland responded that Supervisor Jerry Hall and “them” wanted Griggs to withdraw from the race.

In 2015, the County’s Chancery Clerk notified the Board that the solid waste fund was in the red and that the County had not received funding from a grant that Griggs should have submitted in 2014.

In August 2015, the Chancery Clerk shared with Griggs that the County had not received the usual grant money. While MDEQ did not have a grant application on file from the County, Griggs claimed to have submitted the grant application.

On September 22, 2015, the Chancery Clerk asked Griggs to attend the Board meeting to explain to the Board what happened to the grant.

At the meeting, Supervisor Hall asked the Chancery Clerk whether the County had received its grant money, and the clerk replied “no”. Supervisor Hall then responded, “I say we go ahead and just eliminate this program right now.”

The clerk advised the Board that the County had another grant and suggested that the County use that grant to fund Griggs’ position through the start of the year.

However, Supervisor Russell Brooks rejected the suggestion because the County did not have the “money in hand.” Supervisor Hall then chimed in and also rejected the suggestion.

The Board unanimously voted to eliminate Griggs’ position of Solid Waste Enforcement Officer, and the position was reported as being eliminated “due to lack of funds.”

About a week later, Griggs again spoke with Supervisor McFarland at a restaurant. Supervisor McFarland told Griggs that his termination “looked like political favoritism and that the Board was going to go back and revisit” the issue.

Griggs had “high hopes that the Board would do that, but he never heard another thing” about it. The Board did not reconsider its decision.

Griggs did not appeal the Board’s decision to the County’s Circuit Court. Also, he applied to the Mississippi Employment Security Commission (“MESC”) for unemployment benefits. In Griggs’ unemployment application, he responded that he was “laid off.”

Griggs files suit.

Subsequently, Griggs sued the County under Section 1983 and alleged that the County eliminated the Solid Waste Enforcement Officer position because of constitutionally protected political activity ( i.e. , running for sheriff).

The County moved for summary judgment, which the district court denied. The case proceeded to trial.

The jury returned a verdict for Griggs. In doing so, the jury found:

The County appeals.

On appeal, the County raised the following five issues:

Rooker-Feldman doctrine

First, the County invoked the Rooker-Feldman doctrine that prohibits a federal court from entertaining a collateral attack on a state court judgment.

As the Fifth Circuit quickly noted, the decision of the Board of Supervisors was not a “state court judgment,” so the doctrine did not apply.

Judicial estoppel

Second, the County argued that Griggs was barred by the doctrine of judicial estoppel because he told the MESC he was “laid off.”

The Court explained that judicial estoppel is appropriate when: (1) a party has asserted a position that is plainly inconsistent with a previously asserted position, (2) the earlier position was accepted by the court, and (3) the party did not act inadvertently.

Because Griggs had simply told the MESC the reason the County gave him for his termination, he had not taken a position “plainly inconsistent” with his Section 1983 claim.

Failure to exhaust state remedies

Next, the County complained that Griggs could not bring suit in federal court because he failed to appeal the Board’s decision to Circuit Court.

The Fifth Circuit quickly rejected this because a plaintiff asserting a Section 1983 claim is not required to exhaust state judicial or administrative remedies. (If it were otherwise, a state court put substantial barriers between a plaintiff and his federal civil rights.)

Policymaker status

Here, the Court began by noting “it is well settled that the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”

“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.”

The County focused on the third prong – – the balance between the government’s interests and Griggs’ interests.

The Fifth Circuit explained that a court “more readily finds that the government’s interests outweigh the employee’s interests where the employee is a policymaker” for purposes of the First Amendment.

“A policymaker is an employee whose responsibilities require more than simple ministerial competence, whose decisions create or implement policy, and whose discretion in performing duties or in selecting duties to perform is not severely limited by statute, regulation, or policy determinations made by supervisors.”

Although the County argued that Griggs was a policymaker, the Fifth Circuit disagreed.

“There is no evidence that Griggs created or implemented policy or that he had discretion in performing his duties that was not severely limited by a supervisor. As the district court noted, Griggs was required to report to the road manager, and besides applying for grants, he was not involved in the funding process. The County’s argument that Griggs occupied a policymaking position fails.”

Sufficiency of the evidence

Sufficiency of the Evidence

Finally, the County argued that Griggs failed to prove that a majority of the Board eliminated his position because he ran for sheriff.

The Court began by setting forth the established rule that a local government “faces liability under Section 1983 only if action pursuant to official municipal policy of some nature caused a constitutional tort.”

When the local government’s policymaker is a multi-member board, “the separate actions of individual members of the Board are not sufficient to bind the Board as an entity.”

The Fifth Circuit agreed that that Griggs was required to show that a majority of the Board had retaliatory animus.

“Even so, there is a legally sufficient basis for the jury’s verdict. Drawing all reasonable inferences in Griggs’ favor, which we must do, there is evidence that at least three of the five board members had retaliatory motive. This evidence is legally sufficient to support the jury’s verdict.”

Thus, the jury’s verdict was affirmed.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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The meaning of “accident” under an insurance policy

Tue, 02 Jul 2019 22:10:00 GMT

Drunk Driving Accident

On July 2, 2019, the Fifth Circuit Court of Appeals issued its opinion in Frederking v. Cincinnati Insurance Company in which the court found it necessary to rule that “yes, a car wreck caused by a drunk driver is an accident.”

The facts of Frederking.

Carlos Sanchez was driving under the influence of alcohol when he hit another car and injured Frederking.

At the time, Sanchez was driving a truck assigned to him by his employer, Advantage Plumbing which, in turn, was insured by Cincinnati.

Frederking sued Sanchez and Advantage. The jury returned a verdict against both for $137,000 of compensatory damages and against Sanchez alone for $207,000 of punitive damages.

Cincinnati paid the compensatory award but refused to pay the punitive damages, arguing that, under Texas law, a collision caused by a drunk driver was not an accident.

Frederking sues Cincinnati.

Taking the position that he was a third-party beneficiary of Advantage’s insurance policies (a position with which the Fifth Circuit agreed), Frederking sued Cincinnati for breach of contract and a declaratory judgment.

The district court granted Cincinnati summary judgment.

Frederking appeals to the Fifth Circuit.

The Court began its opinion by stating “only an insurance company could come up with the policy interpretation advanced here.”

Both insurance policies covered accidents, but neither defined the term. “So we are left to give this undefined term its “generally accepted or commonly understood meaning.’ ”

The Court took the time to examine prior case law defining the term “accident” before concluding “as a matter of plain meaning and common usage, the term ‘accident’ plainly includes the drunk driving collision that gave rise to this dispute.”

Finally, the Court noted that under Cincinnati’s theory of interpretation, it is not just drunk driving collisions that would be excluded from coverage.

“As counsel acknowledged during oral argument, a collision caused by texting while driving would also not be an accident. A collision caused by eating while driving would not be an accident. And a collision caused by doing makeup while driving would not be an accident.”

“In each of these scenarios, after all, a driver has made an intentional decision that contributes to an accident. But this is implausible on its face.”

“Indeed, it would defeat the widely held expectations of the countless insureds who purchase automobile insurance precisely to protect against these kinds of ‘accidents.’ ”

Imagine how much time Frederking’s attorneys had to spend to get a court to make a common sense ruling

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Retaliation in the workplace

Tue, 02 Jul 2019 16:12:00 GMT

You’re Fired!
Retaliation at work

We previously wrote here about retaliation against an employee who complains of discrimination.

On June 28, 2019, the Fifth Circuit Court of Appeals issued its opinion in Kraft v. The University of Texas Medical Branch, et al. In that opinion, the Court applied the law of retaliation.

The facts in Kraft.

In May of 2014, Kraft complained about age and sex discrimination in the workplace. The University hired outside legal counsel to investigate.

During the investigation, outside counsel documented numerous acts of misconduct and rules violations by Kraft, including having threatened an employee with termination if that employee filed a report with Human Resources.

As a result of the various violations, the report recommended that Kraft be subjected to several disciplinary action, up to and including termination.

Based upon the report, Kraft’s supervisor decided to terminate Kraft’s employment.

Kraft files suit.

Kraft filed suit against the University and others. She sued for age and sex discrimination, as well as retaliation.

The district court granted summary judgment to all Defendants.

Kraft appeals.

On appeal, Kraft only challenged the dismissal of her retaliation claim. Specifically, she posed the critical question “why was I fired?”

Kraft said it was because she had complained about age and sex discrimination. The Defendants said it was because she violated numerous policies as outlined in the investigative report.

Kraft countered by arguing that the report was being used as a mere pretext and that the real reason she was fired was her earlier complaints of discrimination.

The Fifth Circuit affirms.

With respect to the claim of pretext, the Fifth Circuit noted that Kraft had to produce evidence that could lead a reasonable fact-finder to conclude that the adverse employment action (that is, being fired) would not have occurred but for her decision to complain about discrimination in the workplace.

But, the district court had ruled that Kraft had no such evidence, and the Fifth Circuit agreed.

Specifically, Kraft claimed that her supervisor was “uninterested in learning the truth” because she would not provide Kraft with additional details about the investigation. The Court held that this contention was “pure speculation.”

Next, Kraft pointed to evidence that other employees had reasons to retaliate against her. But, the Court said, prejudiced statements by a non-decisionmaker are insufficient when a plaintiff produces no evidence the decisionmaker was influenced by them.

Finally, Kraft argued that the outside counsel report was inaccurate and that the underlying investigation was inadequate.

The Fifth Circuit rejected that argument, holding that the question of whether Kraft actually violated policy was irrelevant.

“The relevant question is whether Kraft was fired because the report said she violated company policy. If [her supervisor] was motivated by the report rather than retaliation, her decision to fire Kraft was not retaliatory regardless of whether the report was accurate.”

Further, “contrary to Kraft’s contention, none of her evidence suggests the investigation was so ‘inexplicably unfair’ that a reasonable jury could infer Defendants did not actually rely on its findings.”

Thus, the district court’s dismissal of Kraft’s case was affirmed.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Section 1983 ratification claim

Mon, 24 Jun 2019 19:47:00 GMT

Ratification and Section 1983

We previously wrote here about Section 1983 and the ratification theory of liability.

On June 21, 2019, the Fifth Circuit Court of Appeals issued it opinion in Young v. Humphreys County and affirmed the lower court’s judgment based on that theory.

The facts in Young

On September 2, 2015, Plaintiff Carl Young bought three empty houses in Humphreys County. Eight days later, he hired a local contractor to clean and renovate them.

A week after that, Mr. Charles Edwards, the County Building Inspector, posted a condemnation notice on the properties, declaring each of them unsafe and ordering “[a]ll persons . . . to keep out as long as this notice remains posted.”

Nonetheless, according to Edwards’ testimony at trial, Young’s properties actually complied with all county rules and ordinances and state law at the time he posted the notice.

Edwards testified that he would not have posted the condemnation notice except that R.D. “Dickie” Stevens – the president of the Board of Supervisors – had instructed him to do so.

On October 5, the Board met and unanimously voted to hold a hearing on November 17 for the condemnation of Young’s properties.

Young appeared at the November meeting and asked for a continuance to obtain counsel. The parties continued the hearing until December 7.

Young obtained counsel, who informed the Board a few days before the rescheduled hearing of Young’s intent to sue the Board. The Board, in turn, told Young that it would not hold the hearing and was turning the situation over to its insurance company.

The Board never conducted a condemnation hearing, and neither Stevens nor any other Board member instructed Edwards to remove the condemnation notice from Young’s property.

The notice remained in effect for over two years until the Board sent Young a letter on February 12, 2018, telling him that he could enter his properties and start repairs.

Young files suit

Young commenced as action against the County and sought damages under Section 1983 for deprivation of his property rights. He was represented by Ronnie Stutzman and this guy:

Young’s theory of liability was ratification. Specifically, he alleged that Board President Stevens unlawfully caused the condemnation notice to be posted and that the Board of Supervisors later ratified his decision by voting to proceed with condemnation.

The district court submitted the case to a jury which found in favor of Young. Final judgment in the amount of $43,261.57 was entered in his favor.

The County appeals

On appeal, the County argued that Young had failed to make out a case of ratification.

The Fifth Circuit explained that one way of establishing liability is to show that a policymaker ratified the acts of a subordinate.

“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”

The Court concluded that there was legally sufficient evidence for a reasonable jury to find that the Board ratified Stevens’ unlawful initiation of condemnation proceedings

The County also argued that the ratification theory requires a plaintiff to also prove a separate violation of an official policy or custom, not just that the policymaker ratified a subordinate’s action.

The Fifth Circuit rejected this argument because it “misstates the ratification theory.” Showing that a policymaker ratified the actions of a subordinate is one way of making out a Section 1983 claim against a county or municipality; it is not an additional factor that must be established.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Section 1983 – independent intermediary rule

Fri, 21 Jun 2019 19:19:00 GMT

False arrest and the independent intermediary rule

In Buehler v. City of Austin, Texas , 824 F.3d 548 (5th Cir. 2016), the Fifth Circuit again applied its independent intermediary rule to a false arrest claim.

The facts in Buehler are fairly simple. Officers of the Austin Police Department arrested Buehler on three occasions for interfering with police duties while he filmed APD interactions with other citizens. State magistrates and a grand jury found probable cause for each arrest.

Nevertheless, Buehler filed a Section 1983 claim alleging violations of certain constitutional rights. At its core, Buehler’s claim was for false arrest.

The district court applied the independent intermediary rule and dismissed Buehler’s suit.

As noted, with respect to each time Buehler was arrested, a state judge and a grand jury found probable cause to support the arrest.

Under established Fifth Circuit law, the independent intermediary rule becomes relevant when a plaintiff’s claims depend on a lack of probable cause to arrest him.

The rule states that even if an officer has made a false arrest and violated the arrestee’s Fourth Amendment rights, the officer will not be liable if the facts supporting the arrest are put before an impartial intermediary (such as a magistrate or a grand jury) and the intermediary finds probable cause.

In such an event, it is said that the intermediary’s “independent” decision “breaks the causal chain” and insulates the officer from liability.

Based upon that rule, the district court dismissed Buehler’s suit.

The Fifth Circuit affirms.

Initially, Buehler asked the Fifth Circuit to overrule its prior case law on the independent intermediary rule. The Court declined to do so.

The Court did note that the chain of causation between the officer’s conduct and the unlawful arrest “is broken only where all the facts are presented to the grand jury, or other independent intermediary, and where the malicious motive of the law enforcement officials does not lead them to withhold any relevant information from the independent intermediary.”

Buehler argued that this exception applied. The Fifth Circuit, however, found no evidence to support that contention.

Should the independent intermediary rule be overturned?

In its opinion, the Fifth Circuit noted that decisions of other Circuit Courts were “in varying degrees of tension with our independent intermediary doctrine.”

In addition, Buehler’s counsel applied to the United States Supreme Court for a Writ of Certiorari. Although it was denied, some good arguments were advanced. You can read them here.

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Removal to federal court – the forum defendant rule

Sat, 15 Jun 2019 22:32:00 GMT

Removal to federal court

Here, we look at the question of whether an out-of-state defendant can remove a state court action to federal court when an in-state party is also named as a defendant.

Assume this scenario: Plaintiff Johnson sues Defendant Smith and Defendant Williams in Mississippi state court. The parties are residents of these states:

-Johnson (Tennessee)

-Smith (Alabama)

-Williams (Mississippi)

So, there is complete diversity of citizenship between the parties. Also, assume the amount in controversy exceeds $75,000.

As a result, the federal district court in Mississippi would have had original diversity jurisdiction over the case pursuant to 28 U.S.C. Section 1332 if Johnson had decided to file in federal court.

Under Section 28 U.S.C. Section 1441 on removal, when a district court would have had jurisdiction over the suit if it had been filed in federal court, a defendant may remove the state court case to federal court.

Thus, at first glance, Smith and Williams should be able to remove Johnson’s lawsuit to federal court.

This is where the forum defendant rule comes into play.

As noted, the federal court would have had original diversity jurisdiction over Johnson’s suit had he decided to file in federal court.

But, Johnson filed in state court, and Section 1441 says the suit cannot be removed “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

Here, Williams is a resident of Mississippi, so it appears the suit cannot be removed to federal court after all.

Here’s one more twist.

Assume one last fact – – that Johnson served Smith with the summons and complaint before he serves Williams. Does that matter? “Yes”.

Section 1441 states that the suit cannot be removed “if any of the parties in interest properly joined and served as a defendant is a citizen of the State in which such action is brought.”

Courts have held, virtually uniformly, that where diversity does exist between the parties, an unserved resident defendant may be ignored in determining removal under Section 1441. Ott v. Consolidated Freightways Corporation of Delaware , 213 F.Supp. 2d 662 (S.D. Miss. 2002).

Thus, under our scenario, the fact that Williams is a Mississippi resident ( i.e., a forum defendant) will not preclude Smith from removing the case if Smith does so before Williams is served.

In addition, it would seem that Smith could remove the action before he is served, as long as he does it before Williams is served.

Practice pointer

If you represent the plaintiff in a similar scenario and want to stay in state court, get the in-state defendant served right away and before you serve the out-of-state defendant.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Uninsured motorists and sovereign immunity

Sun, 02 Jun 2019 21:53:00 GMT

Uninsured motorists coverage

On May 31, 2019, the Fifth Circuit Court of Appeals issued its opinion in McGlothin v. State Farm Mutual Insurance Company and addressed the question of whether Mississippi law required State Farm to pay an uninsured motorist claim when the driver of the other vehicle enjoyed immunity under the Mississippi Tort Claims Act (“MTCA”).

The facts in McGlothin .

In February 2016, a fireman with the Biloxi fire department rear-ended McGlothin’s vehicle. The fireman was acting in the course and scope of his employment with the fire department at the time of the accident.

The fireman was not, however, acting in reckless disregard of her safety and well-being. This was significant.

Under the MTCA, “a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim . . . arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” See Miss. Code § 11-46-9(1)(c) (emphasis added).

McGlothin nevertheless took the position that her own uninsured motorist policy with State Farm should pay for her injuries.

Her claim brought into play two potentially conflicting statutes regarding uninsured motorist coverage.

The two uninsured motorist statutes.

Insurance statutes

The first statute was Section 83-11-101, which requires automobile insurance companies “to pay the insured all sums which [the insured] shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle.”

Next was Section 83-11-103. That statute defines the term “uninsured motor vehicle” as including “a motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act.” This part of the definition was added by the Legislature in 2009.

It is also noteworthy that even when immunity is waived under the MTCA, an employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.

McGlothin’s position.

McGlothin contended that although the City was immune under the MTCA (because the fireman had not acted in reckless disregard of her safety), the City’s vehicle was an “uninsured motor vehicle” under Section 83-11-103. Thus, she reasoned, State Farm should pay her claim under her uninsured motorist policy.

State Farm’s position.

To support its denial of coverage, State Farm relied upon the language in Section 83-11-101 that uninsured motorist coverage only applies to sums that the insured “shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle.”

Because the fireman and City were immune, State Farm reasoned that McGlothin was not “legally entitled to recover” damages from either of them. Thus, State Farm was not obligated to pay under the uninsured motorist policy.

The district court’s ruling.

Looking at both Sections 83-11-101 and 83-11-103, the district court found them to be in conflict. The court concluded that the latter was more specific and, thus, controlling. As a result, the district court ruled in favor of McGlothin.

The Fifth Circuit reverses.

Placing more emphasis on Section 83-11-101, the Court ruled that because the fireman and City were immune, McGlothin was not “legally entitled to recover” damages from them. Thus, the State Farm policy did not provide uninsured motorist coverage for the accident.

With respect to the question of whether Sections 83-11-101 and 83-11-103 were in conflict, the Fifth Circuit said “no”.

The Court gave as two examples of how the two statutes could be harmonized.

First, if the fireman had been acting in reckless disregard of McGlothin’s safety, then (i) the City’s vehicle would be an uninsured motor vehicle under Section 83-11-103 and (ii) McGlothin would be “legally entitled to recover” her damages from the City.

The second example involved a city employee who was not a fireman or police officer. If that person had caused the accident but had no insurance coverage, although the employee would not personally be liable, the City would be. Thus, McGlothin would have been entitled to uninsured motorist benefits.

Thus, the Fifth Circuit reversed the district court and ruled in favor of State Farm.

Did the Fifth Circuit miss the hint?

As noted above, the Mississippi Legislature amended the definition of “uninsured motor vehicle” in 2009 to include “a motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act.” Prior to that, the definition had not changed since 1979. So, why the change?

Let us use the two examples that the Fifth Circuit used – – the fireman that does act in reckless disregard and the city employee who is neither a fireman nor police officer.

The Fifth Circuit says in both examples, McGlothin would have had an uninsured motorist claim under Section 83-11-101 because she would have been “legally entitled to recover” in both situations. In both examples, immunity would have been waived.

That was already the law prior to the 2009 amendment to Section 83-11-103, was it not? Yet, under the Fifth Circuit’s analysis, the 2009 amendment did not change anything. Based on the Court’s ruling, McGlothin’s rights would have been the same both before and after the 2009 amendment.

So, why did the Legislature amend Section 83-11-103 in 2009? What was the change intended to accomplish?

The logical answer is that the Legislature intended to expand U.M. coverage by doing so.

Under the Fifth Circuit analysis, McGlothin could only recover in situations where immunity had been waived. But, the 2009 amendment applies to vehicles owned or operated by a person “protected by immunity.”

In both examples given by the Fifth Circuit, immunity had been waived, so the owner or operator was not “protected by immunity.”

It is my opinion that the 2009 amendment was intended to allow an injured party to recover U.M. benefits when injured by someone who was otherwise “protected by immunity” under the MCTA – – that is, someone for whom immunity had not been waived.

“Under the rules of statutory construction, we are loathe to find any part of a statute meaningless.” Harris v. State , 99 So.3d 169, 173 (Miss. 2012).

That appears to be what the Fifth Circuit did with respect to the 2009 amendment.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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New excessive force decision

Wed, 29 May 2019 18:18:00 GMT

Excessive Force

On May 21, 2019, the United States Court of Appeals for the Fifth Circuit issued its opinion in Valderas v. City of Lubbock . The issue in that case was whether Valderas could maintain a Section 1983 claim for the use of excessive force by the police.

Facts of the case.

Lubbock police went to a residence where Valderas was supposed to be buying drugs. Valderas was outside speaking to someone in a car when the police arrived.

Valderas pulled a gun when he saw a car approaching, but, when told that the car was a police car, he threw the gun into the car next to him.

The police officers saw Valderas pull the gun but denied seeing him discard it. One of the officers drew his gun and fired five shots at Valderas, partially paralyzing him.

Valderas files suit.

Proceeding under Section 1983, Valderas took the position that the use of deadly force was confined to the moment of the threat, which he contended ceased when he threw his gun into the car next to him.

The officer that shot him asserted a qualified immunity defense. He argued that his use of force was objectively reasonable because he reasonably believed that Valderas possessed a gun and was a threat to everyone present, including the two innocent bystanders in the car next to Valderas.

The district court agreed with the officer and granted him summary judgment on the basis of qualified immunity.

Valderas appeals.

Initially, the Fifth Circuit noted that there was conflicting testimony as to what happened during the shooting. Normally, that would preclude a grant of summary judgment.

Yet, there was a video of the events. As the Court explained:

“Although courts view evidence in the light most favorable to the nonmoving party, they give greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene.”

“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

The Court then turned to the qualified immunity defense. Although a defendant usually bears the burden of proof as to an affirmative defense, “a good-faith qualified immunity defense alters the usual summary judgment burden of proof. Although we view the evidence in the light most favorable to the nonmoving party, the plaintiff bears the burden of demonstrating that a defendant is not entitled to qualified immunity.”

Qualified immunity in excessive force cases.

The Fifth Circuit explained that in order to overcome a qualified immunity defense in an excessive force case, the plaintiff must show:

(1) an injury,

(2) which resulted directly and only from a use of force that was clearly excessive, and

(3) the excessiveness of which was clearly unreasonable based on the information the officers had when the conduct occurred.

The Court continued: “Recognizing that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation, the Supreme Court has warned against second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.”

Accordingly, reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

So, “[a]n officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.”

Valderas loses his appeal.

Applying this law to the facts of the case, the Fifth Circuit explained that “Valderas admits to pulling a gun from his trousers. He argues, however, that the exercise of deadly force was no longer reasonable once he threw the gun into the vehicle and turned to flee.”

“Contrary to Valderas’s assertions, the video footage does not show that he put his hands up, nor does it show that he was fleeing, when the shots were fired.”

“Given these facts, there is no genuine dispute but that Officer Mitchell’s decision to use deadly force was reasonable under these circumstances. Our circuit has repeatedly held that an officer’s use of deadly force is reasonable when an officer reasonably believes that a suspect was attempting to use or reach for a weapon.”

Thus, the ruling of the district court was affirmed.

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Arrest warrant issued on faulty affidavit

Mon, 20 May 2019 21:28:00 GMT

Arrest Warrant Based on Faulty Affidavit

We recently wrote about a Section 1983 claim when a person was arrested based upon a false affidavit signed by a law enforcement officer. Today, we discuss another situation in which a faulty affidavit can give rise to a constitutional rights violation.

On September 18, 2018, United States District Judge Carlton W. Reeves issued an opinion in Mayfield v. Butler Snow LLP, et al .

The lawsuit arose out of the arrest of attorney Mark Mayfield. He was arrested in connection with the actions of others in photographing Mrs. Thad Cochran in her bed in a nursing home.

The basis for Mayfield’s arrest warrant was Officer Vickie Currie’s affidavit stating that Mayfield had communicated with the other conspirators to photograph Mrs. Cochran.

Mayfield’s estate filed suit.

After Mayfield’s death, his estate filed suit against multiple parties, alleging multiple claims, including Section 1983 claims against government officials and employees.

The claim addressed in this post was the contention that Officer Currie’s affidavit (which resulted in an arrest warrant being issued) was insufficient to support a finding of probable cause by the judge.

Two instances in which an officer can be liable for a faulty affidavit.

Judge Reeves began his analysis by noting “[p]olice officers who apply for warrants are typically entitled to qualified immunity for their on-the-job mistakes. In layman’s terms, that means police officers are given ‘ample room for mistaken judgments.’ ”

Yet, Judge Reeves explained there are two situations in which qualified immunity can be lost and an officer can be held liable even when a warrant was obtained.

One of those is where the officer “makes a false statement knowingly and intentionally, or with reckless disregard for the truth, that results in a warrant being issued without probable cause.” That exception is based on Franks v. Delaware which we previously discussed here .

The other exception arises from the ruling of the United States Supreme Court in Malley v. Briggs .

Judge Reeves explained that a Malley violation occurs when the attesting officer’s “warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.”

“The Malley wrong is not the presentment of false evidence, but the obvious failure of accurately presented evidence to support the probable cause required for the issuance of a warrant.”

Officer Currie’s affidavit.

The affidavit submitted by Officer Currie to obtain an arrest warrant for Mayfield alleged that “by communicating, planning, and assisting Clayton Kelly with information and resources which aided and assisted Kelly in photographing and filming Rose Cochran inside of her residence, . . . without her knowledge or permission,” Mayfield had helped his co-conspirators violate Mississippi Code § 97-29-63 .

That statute reads:

Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony . . . .

Judge Reeves concluded that “the most glaring problem is that Officer Currie’s affidavit is conclusory. It contains no facts tending to show that Mayfield committed a crime.”

Therefore, “Officer Currie’s affidavit may run afoul of Malley and its progeny because it provides no factual basis on which a judge could evaluate her application.”

Judge Reeves called for additional briefing on the question of whether Officer Currie was entitled to qualified immunity in light of her faulty affidavit.

On April 30, 2019, Judge Reeves denied Officer Currie’s motion to dismiss based on qualified immunity. He held that “[i]t was not objectively reasonable for her to present to the judge such a bare-bones warrant application lacking any underlying facts and circumstances showing Mayfield’s unlawful conduct.”

UPDATE : On September 22, 2020, the United States Court of Appeals for the Fifth Circuit reversed Judge Reeves in light of other information that had been presented to the judge issuing the arrest warrant.

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Section 1983 claim for malicious criminal prosecution

Wed, 15 May 2019 20:18:00 GMT

Malicious Criminal Prosecution

Here, we discuss a Section 1983 claim for malicious criminal prosecution.

Recently, the Fifth Circuit issued its opinion in Winfrey v. Rogers , 901 F.3d 483 (5th Cir. 2018). In that case, Richard Winfrey (“Junior”) was arrested and charged with murder after a botched investigation and various alleged violations of Junior’s Fourth Amendment rights.

The State tried him on murder charges. The jury acquitted in 29 minutes. By that time, he had served 16 months in prison.

Junior files a Section 1983 claim.

Junior filed suit against several parties, including Deputy Sheriff Lenard Johnson.

He claimed that Johnson violated his rights by signing an arrest warrant affidavit that lacked probable cause by omitting and misstating key facts. This unconstitutional warrant, he alleged, resulted in his unlawful arrest and imprisonment.

Johnson moved for summary judgment on the basis of qualified immunity. The district court granted Johnson’s motion, and Junior appealed.

The Fifth Circuit reverses.

The numerous problems with the investigation are outlined in the Court’s opinion. Suffice it to say, the Sheriff’s department was alleged to have used false information to secure arrest and search warrants and failed to disclose exculpatory evidence.

At the outset, the Court had to decide which constitutional provision was at issue.

The Court noted that although there is no “freestanding constitutional right to be free from malicious prosecution,” the initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection – – the Fourth Amendment if the accused is seized and arrested, for example.

Because Junior alleged that Johnson signed an objectively unreasonable arrest warrant affidavit, the Court analyzed the case as a Fourth Amendment malicious prosecution claim.

The statute of limitation on malicious criminal prosecution.

Section 1983 provides a federal cause of action, but federal district courts look to the statute of limitations for personal injury torts used by the state in which the district court sits.

On the other hand, the question of when the statute begins to run on a cause of action is a question of federal law.

So, when did the statute of limitation begin to run on Junior’s claim?

False imprisonment vs. malicious criminal prosecution.

The Fifth Circuit explained that determining when the statute of limitation began to run “depends on whether Junior’s claim more closely resembles one for false imprisonment or one for malicious prosecution.”

A false imprisonment claim is based upon “detention without legal process.” It “begins to run at the time the claimant becomes detained.”

A malicious prosecution claim, on the other hand, is based upon “detention accompanied by wrongful institution of legal process.” The claim does not accrue (and, therefore, the statute does not begin to run) until the prosecution ends in the Section 1983 plaintiff’s favor.

The Fifth Circuit held that Junior’s claim was more like the tort of malicious prosecution. Junior was arrested through the wrongful institution of legal process: an arrest pursuant to a warrant, issued through the normal legal process, that is alleged to contain numerous material omissions and misstatements.

“Junior thus alleges a wrongful institution of legal process—an unlawful arrest pursuant to a warrant—instead of a detention with no legal process. Because Junior’s claim suggests malicious prosecution rather than false imprisonment, his claim accrued when his criminal proceedings ended in his favor.”

What about qualified immunity?

We previously wrote here about the defense of qualified immunity. In this case, Johnson raised it as a defense to Junior’s claims.

As the Fifth Circuit explained, when resolving qualified immunity on summary judgment, courts determine (1) whether the facts, taken in the light most favorable to the party asserting the injury, show the officer violated a federal right and (2) whether the right was “clearly established” when the violation occurred.

The Court explained: “Here, the clearly established constitutional right asserted by Junior is to be free from police arrest without a good faith showing of probable cause.”

Ever since the United States Supreme Court’s 1978 decision in Franks v. Delaware , “it has been clearly established that a defendant’s Fourth Amendment rights are violated if (1) the affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding of probable cause.”

Yet, negligence alone will not defeat qualified immunity. A proven misstatement can vitiate an affidavit only if it is established that the misstatement was the product of deliberate falsehood or of reckless disregard for the truth. Recklessness requires proof that the defendant in fact entertained serious doubts as to the truth of the statement.

Junior’s claim meets the first element of Franks

The Court concluded that Junior alleged a clearly established constitutional violation. Under the first prong of Franks , Junior must present evidence that Johnson, through material omissions or otherwise, made “a false statement knowingly and intentionally, or with reckless disregard for the truth.”

Junior provided much evidence that Johnson made false statements in his affidavit. Those are outlined in the Court’s opinion. The Court concluded that the question of whether Johnson gave false information knowingly or in reckless disregard of the truth was for a jury to decide.

Junior was not out of the woods yet.

Junior still had to meet the second prong of Franks – whether the allegedly false statement was necessary to the finding of probable cause by the judge who issued the arrest and search warrants.

Put another way, if the evidence presented to the judge would have established probable cause in the absence of Johnson’s false affidavit, Junior has a problem.

The Fifth Circuit explained: “To determine whether the false statement was necessary for this finding, Franks requires us to consider the faulty affidavit as if those errors and omissions were removed. We then must examine the ‘corrected affidavit’ and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions.

After examining the “totality of the circumstances,” the Court held that the “corrected affidavit” did not contain sufficient information to satisfy the probable cause requirement. Put another way, had the state court judge been given a truthful affidavit, he would not have issued a warrant for Junior’s arrest.

The Fifth Circuit, therefore, remanded the case to the district court for trial.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Retaliatory arrests for exercising free speech

Sun, 12 May 2019 20:43:00 GMT

Free Speech

Last year, the United States Supreme Court issued its opinion in Lozman v. City of Riviera Beach . In its opinion, the Court addressed the interplay between lawful arrests and the use of government power to suppress free speech.

As the Court said, “an arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation.”

“At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.”

The facts in Lozman.

Lozman lived in the City of Riviera Beach on the Atlantic coast of Florida. He was an outspoken critic of the City’s plan to use its eminent domain powers to seize homes along the waterfront for private development. He also filed suit against the City, alleging violations of the open meetings laws.

During a closed-door session of the City Council, one member suggested that they use City resources to “intimidate” Lozman and others who had filed suit against the City. (Yes, they were dumb enough to put that word in the transcript of the session.) Other members agreed to follow that course of action.

Lozman gets arrested.

Five months after the closed-door session, the City Council invited comments from the public at a meeting. Lozman went to the podium and began to speak about a county government issue.

A council member instructed Lozman to stop, but he refused. The council member then asked for the assistance of a police officer. The officer again asked Lozman to leave, and again he refused.

At that point, Lozman was arrested and removed from the meeting. He was charged with disorderly conduct and resisting arrest. The State’s attorney decided there was probable cause for the arrest, but he nevertheless dropped the charges.

Lozman files suit.

Section 1983 suit

Thereafter, Lozman filed a Section 1983 lawsuit alleging that the City had harassed him in a number of ways for exercising his free speech rights. (You can read more about Section 1983 here .)

After a 19 day trial, the jury returned a verdict for the City on all of Lozman’s claims.

Lozman appeals.

On appeal, Lozman only sought reversal as to the City’s alleged retaliatory arrest at the meeting. Interestingly enough, Lozman admitted that there was probable cause for his arrest.

Even so, Lozman claimed that his arrest at the city council meeting violated the First Amendment’s guarantee of free speech because the arrest was ordered in retaliation for his earlier, protected speech. Specifically, he meant his open-meetings lawsuit and his prior public criticisms of city officials.

The question for the Supreme Court, then, was whether the existence of probable cause barred that First Amendment retaliation claim.

The Supreme Court says “no”.

In reaching its decision, the Supreme Court focused on two prior decisions, Mt. Healthy City Board of Education v. Doyle and Hartman v. Moore .

The facts of Mt. Healthy were these. A city board of education decided not to rehire an untenured school teacher after a series of incidents indicating unprofessional demeanor. One of the incidents was a telephone call the teacher made to a local radio station to report on a new school policy.

The Supreme Court accepted the proposition that what the teacher said on the telephone call was protected speech. The Court went on to hold, however, that since the other incidents, standing alone, would have justified the dismissal, relief could not be granted if the board could show that the discharge would have been ordered even without reference to the protected speech.

Put another way, even if retaliation might have been a substantial motive for the board’s action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination.

Hartman involved a different situation. There, William Moore had engaged in an extensive lobbying and governmental relations campaign opposing a particular postal service policy. Moore was later prosecuted for violating federal statutes in the course of that lobbying.

After being acquitted, Moore filed suit against five postal inspectors, alleging that they had violated his First Amendment rights when they instigated his prosecution in retaliation for his free speech criticisms of the Postal Service.

In Hartman , the Supreme Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. If there was probable cause, the case ends.

On the other hand, if the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs. Then, the plaintiff must show that the retaliation was a substantial or motivating factor behind the prosecution. If that showing is made, the defendant can prevail only by showing that the prosecution would have been initiated without respect to retaliation.

Mt. Healthy applies.

Ultimately, the Court decided to apply Mt. Healthy to Lozman’s claim. The Court said that the fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim.

“An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer.”

“An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation.”

“For these reasons, when retaliation against free speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.”

The importance of Lozman’s speech.

The Supreme Court concluded its opinion by noting: “As a final matter, it must be underscored that this Court has recognized the right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.”

“Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values.”

Thus, when the government has an individual arrested as “political payback” for exercising free speech, a Section 1983 claim can arise even if there was probable cause for the arrest.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Absolute Immunity in Section 1983 lawsuits

Tue, 07 May 2019 18:04:00 GMT

Absolute Immunity Defense

Today we discuss the defense of absolute immunity to a Section 1983 lawsuit alleging a violation of constitutional rights.

We previously wrote here about the defense of qualified immunity. To recap, most government employees are immune from such a lawsuit unless the plaintiff proves that:

Absolute immunity is available to certain government employees.

As the name implies, “absolute immunity” means just that – – a complete immunity from a lawsuit alleging a violation of constitutional rights.

The persons who most often raise absolute immunity are judges and prosecutors. But, others in government who perform tasks similar to those performed by judges and prosecutors may also be immune from suit.

For example, the Fifth Circuit Court of Appeals has applied absolute immunity to a state nursing regulatory board and its members who performed quasi-judicial functions.

Immunity from suit, not just liability.

The United States Supreme Court has emphasized that the defense of absolute immunity means immunity from a lawsuit, not just from liability.

“The essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). Thus, immunity is a threshold question, to be resolved as early in the proceedings as possible.

What are the limits on absolute immunity?

Judges and immunity

Judicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993).

A judge’s acts are judicial in nature if they are “normally performed by a judge” and the parties affected “dealt with the judge in his judicial capacity.”

Thus, as long as the judge is performing “judge-like” acts, she is immune from suit regardless of how wrongfully she acted. Indeed, a judge can invoke absolute immunity even when she is accused of ruling a certain way as the result of a bribe.

Judicial immunity can be overcome only by showing that the actions complained of were nonjudicial in nature or by showing that the actions were taken in the complete absence of all jurisdiction.

So, for example, a state judge’s dismissal of a subordinate court employee is not a judicial act entitled to absolute immunity.

Prosecutors enjoy the same protection.

Criminal prosecutors also enjoy absolute immunity from claims for damages asserted under Section 1983 for actions taken in the presentation of the state’s case.

Acts undertaken by the prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.

This broad immunity applies even if the prosecutor is accused of knowingly using perjured testimony. Likewise, “a conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors.” Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc).

The exceptions described above for judges will also apply to prosecutors. For example, a prosecutor accused of falsifying a death certificate and covering up a murder were held to be actions performed outside the role of a prosecutor.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Retaliation in the workplace.

Sat, 04 May 2019 22:08:00 GMT

Workplace retaliation

We previously wrote here about Title VII, a federal law that prohibits employment discrimination based on race, color, religion, sex and national origin. Today, we discuss the related concept of an employer’s retaliation against an employee who exercises her rights under Title VII.

Under federal law, it is unlawful for an employer to discriminate against an employee because she has:

What are some activities protected against retaliation?

Retaliation at work

There are many ways in which an employer could retaliate against an employee. The EEOC has given some examples:

This is not an exhaustive list.

What constitutes retaliation?

In retaliation cases, the courts look to see whether the employee has suffered an “adverse employment action.”

Some forms of retaliation are obvious, such as firing or demoting the employee. Other forms of adverse employment actions can include:

-reduction in pay

-more burdensome assignments or work hours

-denial of promotions

-repeated harassing behavior

How to prove a prima facie case of retaliation.

The phrase “prima facie” means “ sufficient to establish a fact or raise a presumption unless disproved or rebutted.”

To prove a prima facie case of retaliation, the employee must establish all three of these elements:

(1) that he participated in an activity protected by Title VII;

(2) that his employer took an adverse employment action against him; and

(3) that a causal connection exists between the protected activity and the adverse employment action.

As to the third element, the test is “but-for causation.” In other words, the employee must prove that he would not have otherwise suffered the adverse employment action but for the employer’s wrongful retaliation.

If the employee makes a prima facie case, the burden then shifts to the employer to proffer a legitimate rationale for the underlying employment action.

If such a reason is provided, the employer then bears the burden of proving that the employer’s reason is a pretext for the actual retaliatory reason.

The question of the validity of the initial complaint.

Assume an employee files an EEOC charge alleging that certain actions of his employer violated Title VII. Ultimately, it is determined that the employer did not violate Title VII.

If the employer then retaliates against the employee, does the employer violate Title VII?

The answer is “yes”, as long as the employee had a reasonable, good faith belief that the practice in question violated Title VII .

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Section 1983 claims for failure to prevent prison suicide

Sat, 27 Apr 2019 21:06:00 GMT

Constitutional Rights of Inmates

When an inmate is at risk of committing suicide, prison officials are obligated to take certain actions.

Recently, the Fifth Circuit Court of Appeals addressed a Section 1983 constitutional claim arising from a prison suicide.

In Arenas v. Calhoun (decided April 26, 2019), the facts were as follows:

While patrolling a unit of a state prison, Officer Calhoun saw that Inmate Tavara was hanging from a bedsheet wrapped around his neck. Looking through a small window, Officer Calhoun could not determine whether Tavara was actually hanging or was staging suicide to draw officers into the cell.

Calhoun summoned for backup and waited for a supervisor to determine when it was safe to open the door. Seven minutes later, prison staff entered the cell, but Tavara was dead.

Tavara’s mother filed suit against Calhoun pursuant to 42 U.S.C. Section 1983, claiming that Calhoun violated her son’s Eighth Amendment right against cruel and unusual punishment.

The district court granted summary judgment to Calhoun.

Maria Tavara appeals

On appeal, the Fifth Circuit began its analysis by noting that the Eighth Amendment prohibits cruel and unusual punishment.

The Court noted that the Eighth Amendment requires that “prison officials ensure that inmates receive adequate food, clothing, shelter, and medical care, and take reasonable measures to guarantee the safety of the inmates.”

The Fifth Circuit further explained that to prevail on an Eighth Amendment claim, an inmate must establish two elements.

First, he must demonstrate that the alleged deprivation was objectively serious, exposing him “to a substantial risk of serious harm” and resulting “in the denial of the minimal civilized measure of life’s necessities.”

Second, an inmate must prove that the prison official possessed “a subjectively culpable state of mind” in that he exhibited “deliberate indifference to serious medical needs.”

A prison official displays deliberate indifference only if he (1) “knows that inmates face a substantial risk of serious bodily harm” and (2) “disregards that risk by failing to take reasonable measures to abate it.”

How do these principles apply to risk of suicide?

The Court recognized that suicide is an objectively serious harm implicating the state’s duty to provide adequate medical care.

Calhoun acknowledged that he knew Tavara faced a substantial risk of harm upon seeing him with a ligature around his neck.

Thus, the only question was whether Calhoun “effectively disregarded” the known risk that Tavara might kill himself. The Fifth Circuit concluded that “Calhoun did no such thing.”

Within seconds of observing Tavara’s plight, Calhoun placed four radio calls for assistance. He then obtained the key and awaited the arrival of the promised support.

It is true that help did not appear for roughly five minutes. But entering the dormitory alone would have jeopardized Calhoun’s personal safety and that of the prison itself, said the Court.

The Fifth Circuit explained that there is “no rule of constitutional law that requires unarmed officials to endanger their own safety in order to protect a prison inmate.”

Furthermore, officers “should be accorded wide-ranging deference in the execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”

Thus, Calhoun was not deliberately indifferent, and he was entitled to summary judgment.

Oral modification of written contracts.

Fri, 26 Apr 2019 20:39:00 GMT

Oral modification to written contracts

Many written contracts contain a provision to this effect: No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto.

Is this type of provision enforceable?

In many instances, the answer is “no”.

In Mississippi, “an oral modification may be made even where the contract provides that modification must be in writing.” Eastline Corp. v. Marion Apartments, Ltd. , 524 So.2d 582, 584 (Miss. 1988).

The general rule is that, in the absence of a law which requires the particular contract involved to be in writing , the parties to a written contract may afterward change or modify it by verbal agreement. St. Louis Fire and Marine Insurance Co. v. Lewis , 230 So.2d 580, 582 (Miss. 1970).

At the same time, “for a subsequent agreement to modify an existing contract, the later agreement must, itself, meet the requirements for a valid contract.” Singing River Mall v. Mark Fields, Inc. , 599 So.2d 938, 947 (Miss. 1992).

Put another way, “since a contract modification must have the same essentials as a contract, a binding post-contract agreement must fulfill the requirements of a contract regardless of whether a party characterizes it as a modification or a stand-alone contract.” Singing River Mall .

A modification may also arise from the parties’ conduct. “The subsequent actions of parties pursuant to a contract may support a finding that the original contract has been modified to an extent consistent with the subsequent course of conduct.” Fletcher v. U.S. Restaurant Properties , 881 So.2d 333, 337 (Miss. Ct. App. 2004).

The implications of the statute of frauds.

In Mississippi, many oral agreements are just as legally binding as a written contract.

But, the “statute of frauds” refers to contracts that must be in writing in order to be enforceable. Some of those contracts are listed in Section 15-3-1 of the Mississippi Code, but others can be found in different Code sections.

If the contract is question is subject to the statute of frauds (and, therefore, must be in writing), then any amendment to that contract must usually be writing as well. See, e.g., Favre Prop. Mgmt. v. Cinque Bambini , 863 So.2d 1037, 1045 (Miss. Ct. App. 2004) [“Because a contract to purchase land is within the purview of the statute of frauds, any modification of a contract that comes under the statute of frauds must be in writing”].

The better practice, of course, is to put in writing any amendment to a written contract.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Section 1983 claim for excessive force

Fri, 19 Apr 2019 16:33:00 GMT

Excessive Force

On April 16, 2019, the Fifth Circuit issued its opinion in Bourne v. Gunnels . Two issues addressed by the court were (i) whether Bourne’s excessive force claim was barred by the Heck v. Humphrey doctrine and (ii) whether the defendants were entitled to qualified immunity.

We previously wrote about Heck here . In summary, Heck bars an individual from challenging his conviction or confinement via a Section 1983 claim if winning that claim would imply the invalidity of the criminal judgment.

We also wrote here about the defense of qualified immunity. The determination of whether a law enforcement officer (or other government employee, for that matter) is entitled to qualified immunity includes two inquiries.

First, did the officer violate a constitutional right of the injured party?

Second, was that constitutional right “clearly established” at the time of the alleged misconduct by the officer?

The facts of Bourne .

Bourne was being held as a prisoner in Texas. For reasons not entirely clear in the court’s decision, Bourne was protesting something and had taken control of the food tray slot in his prison door by stuffing it with towels and a sheet. He also covered the windows to his cell with a sheet.

Prison officials authorized the use of force to regain control of the door. After giving Bourne several warnings, the officials used a chemical spray against him and entered the cell to subdue him.

The prison officials stated that they used a limited and reasonable amount of force. Bourne, on the other hand, claimed that they continue to abuse him after he was handcuffed and shackled on the floor of his cell.

The district court dismisses Bourne’s lawsuit.

The district court ruled that (i) the monetary claims against the defendants in their official capacity were barred by the 11th Amendment, (ii) the excessive force claim was barred by Heck , and (iii) the defendants were entitled to qualified immunity.

With respect to the application of the Heck doctrine, the district court noted that Bourne received a disciplinary conviction of tampering with his cell door and creating a disturbance, resulting in a forfeiture of 30 days’ good-time credit.

The district court concluded that if Bourne succeeded on his excessive force claim, that success would “implicate the validity of his disciplinary conviction for creating the disturbance that resulted in the use of force.”

On appeal, Bourne only challenged the last two of these rulings.

The Fifth Circuit reverses.

On appeal, the Fifth Circuit disagreed with the district court’s application of Heck . The court agreed that Bourne was disciplined for tampering with his food tray slot and creating a disturbance, thereby requiring the use of force by prison officials.

The court observed, however, that “the § 1983 excessive-force claims arise from the specific force defendants used after he was restrained on his cell floor. The basis of Bourne’s § 1983 excessive-force claims, therefore, is distinct from the basis of his disciplinary conviction.”

Thus, the court ruled, “a finding of excessive force would not negate the prison’s finding that Bourne violated its policies and was subject to disciplinary action as a result. Accordingly, Heck and its progeny do not bar Bourne’s excessive-force claims.”

With respect to the lower court’s ruling on qualified immunity, the Fifth Circuit explained that “the amount of force that is constitutionally permissible must be judged by the context in which that force is deployed.” Courts must “decide excessive force claims based on the nature of the force rather than the extent of the injury.”

Viewing the evidence in the light most favorable to Bourne and making all inferences in his favor, the Fifth Circuit concluded that there was a genuine dispute of material fact, namely, whether the force employed after he was restrained on his cell floor “was used in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

The case was remanded to the district court for further proceedings.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Appeal of denial of a qualified immunity defense.

Tue, 16 Apr 2019 18:32:00 GMT

Qualified Immunity

We previously wrote here about the defense of qualified immunity to a Section 1983 claim for violation of civil rights.

On April 16, 2019, the United States Court of Appeals for the Fifth Circuit issued its opinion in Ramirez v. Escajeda . In that opinion, the court addressed the question of whether and to what extent it had jurisdiction to hear an interlocutory appeal of a district court’s denial of the qualified immunity defense.

The facts of Ramirez .

Maria Ramirez called 911 the evening of June 23, 2015, saying that her son Daniel was threatening to hang himself and needed help. Maria insists that she “did not tell dispatch that [Daniel] had a weapon because he did not.”

Ruben Escajeda, Jr., an El Paso Police Department officer, responded to the call, which he maintains was “a call-out regarding a suicidal subject with a weapon.” He arrived at the Ramirezes’ house and went to the backyard to look for Daniel.

It was dusk when Escajeda arrived, and the parties dispute exactly what he was able to see. The Ramirezes allege that Escajeda “immediately saw Daniel in the process of hanging himself from a basketball net.” But “Daniel was clearly still alive,” they maintain, and “was grabbing the rope around his neck and touching the ground with his tiptoes—trying to save his own life.”

Escajeda counters that he saw Daniel but “was barely able to make out the deceased through the near dark” and could not see that Daniel was attempting to hang himself. Whatever the lighting conditions allowed him to see, Escajeda contends that he repeatedly asked Daniel to show his hands.

When Escajeda was “unable to see . . . the subject’s hands” “after multiple demands,” he warned Daniel “that he would tase him if he did not raise his hands.” Because Escajeda still could not see Daniel’s hands, “he deployed his taser.”

The Ramirezes allege that the taser hit Daniel in his chest and abdomen and that his body immediately went limp. Then Escajeda approached Daniel and discovered that he “was hanging himself during the encounter.”

Escajeda removed Daniel from the basketball net and began CPR. Daniel was tran-ported to a hospital and soon pronounced dead. Police did not recover a weapon.

The Ramirezes file a Section 1983 claim.

Maria and her husband Pedro sued Escajeda in his personal capacity under 42 U.S.C. § 1983, alleging that “use of a taser was not necessary nor justified” and was “an objectively unreasonable and excessive amount of force” in violation of their son’s Fourth and Fourteenth Amendment rights.

Escajeda moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting qualified immunity and stressing that plaintiffs had not met the plausibility standard for pleading.

The district court denied the motion, holding that Escajeda was not entitled to qualified immunity based on well-pleaded facts in the complaint.

Escajea appeals.

On appeal, the Fifth Circuit noted that if a defendant raises a qualified immunity defense and the district court denies it, the Court of Appeals has jurisdiction to immediately review the decision on interlocutory appeal.

But, appellate review is “restricted to determinations of questions of law and legal issues” and the court does not consider the correctness of the plaintiff’s version of the facts.”

This is where Escajeda’s appeal failed. His sole contention on appeal was that the Ramirezes had not pleaded “a claim [to] relief that is plausible on its face.”

Escajeda’s appeal was, therefore, “merely an attack on the district court’s denial of his motion to dismiss for failure to state a claim.” The Fifth Circuit concluded that it lacked jurisdiction to consider that challenge at this early facet of the proceedings.

Escajega could have argued on appeal that the facts alleged did not rise to the level of showing that he violated Daniel’s clearly-established constitutional rights, but he did not.

Even so, the Fifth Circuit noted that Escajeda was free to raise that issue later in the district court proceeding.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Serving a Summons – when is a copy not a copy?

Mon, 15 Apr 2019 21:03:00 GMT

Serving a Summons

When a Complaint is served on a defendant, it is accompanied by a Summons that instructs the defendant to file an answer within a certain amount of time.

Service of a summons is, in most cases, governed by Rule 4 of the Mississippi Rules of Civil Procedure. Rule 4 provides for service in several different ways, including:

So, a defendant can be served with a “copy” of the summons and complaint, right?

Wrong, says the Mississippi Supreme Court.

In Bilbo v. Thigpen , 647 So. 2d 678, 691 (Miss. 1994), the Supreme Court held that “while the word ‘complaint’ sometimes refers to a duplicate copy, the word ‘summons’ means an original, not a duplicate or photocopy.” Because the defendant received a copy of the summons, process was not properly effected.

It is correct, as the Bilbo court noted, that some portions of Rule 4 refer to the “summons and a copy of the complaint.” This was the basis of the Court’s ruling that the summons must be an original.

Yet, the Court paid no attention to the multiple places in the Rule which plainly state that the defendant is to be served with a copy of the summons.

This may be much ado about nothing. Yet, if a plaintiff serves a copy of the summons on a defendant and later obtains a default judgment, Bilbo may provide the basis for setting that default judgment aside.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Restoration of Rights

Mon, 25 Mar 2019 16:27:00 GMT

Restoration of Rights

Civil Rights

Restoration of voting rights

This article is about restoration of voting rights. Previously we discussed gun rights here . This is about your right to vote after you have been convicted of a crime.

Without going into a history lesson, the United States Constitution did not originally guarantee a right to vote. Although amendments and Court decisions have changed this drastically, there is still one class that is disenfranchised: felons.

Do you qualify for an expungement?

You may qualify for an expungement; which we discussed here . However, the list of expungable felonies is short. Are you or someone you know convicted of an unexpungeable felony in Mississippi? Consider the following…

The applicable statutes

“A person convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy is no longer considered a qualified elector” (Miss. Const. Art. 12, § 241).

You regain voting rights automatically if not one of these convictions. Even if you have one of these convictions, the governor can pardon you (Miss. Code Ann. § 47-7-41) or the Mississippi legislature can vote by two-thirds in both houses to restore your voting rights (Miss. Const. Art. 12, § 253)

When you have any questions, call us to see if we can be of any assistance to you or someone you know.

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Restoration of Rights – how do I go about it?

Mon, 18 Mar 2019 15:24:00 GMT

Hunting privileges and personal defense rights

Restoration of Rights – how do I go about it?

Previously on this blog, we discussed expunging a criminal record here . There are many convictions that cannot be expunged, mostly felonies. However, you would like to defend yourself and your family. You would also like to hunt, or teach your children to hunt. In Mississippi, you accomplish this by a petitioning for a certificate of rehabilitation.

Expungement vs. Restoration

As previously stated, many crimes cannot be expunged. Apart from traffic violations, felonies are the main area you have to worry about. Why? Because felons can be charged with yet another felony for possessing a firearm. This carries a maximum sentence of 10 years in Mississippi!

Petitioning the Sentencing Court

Call us today about petitioning your sentencing court for a certificate of rehabilitation or restoration of rights. Like expungements, you will not be able to do this pro se – that is, on your own. Get an expungement, a restoration, a pardon, or whatever you may need with our assistance.

If you need any other legal assistance, call us at 601-607-3156 to see if we may be able to help you.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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DUI First Offense and Nonadjudication

Fri, 15 Mar 2019 16:51:00 GMT

DUI first offense

DUI First Offense

First, always talk to an attorney about defenses to accusations of drunk driving. That is all they are – accusations. You may have a great legal defense, which will take you hiring an attorney who can work on your case. The case may require a trial, and even an appeal. There is another option: nonadjudication.

Nonadjudication law

When I say “nonadjudication,” I am referring to the court’s discretion of imposing certain conditions for the charge or charges to be dropped in lieu of being convicted of the charges. The accused must waive their constitutional rights and plea “guilty.” Courts have discretion to nonadjudicate, usually suggested by the prosecution after negotiation with the criminal defense attorney. The Mississippi legislature updated DUI nonadjudication law in 2014. The law is now quite specific about qualifying for nonadjudication and the conditions it imposes.

DUI non-adjudication

Mississippi Code Annotated Section 63-11-30(14) spells out eligibility. The person must complete all terms of the nonadjudication. The nonadjudication will not apply to commercial drivers. No prior convictions or pending subsequent charges. Must provide justification for why nonadjudication is appropriate. Along with mandatory costs, fines, and courses, the court suspends your license for 120 days. There is an alternative: interlock ignition devices.

Interlock ignition device

One of the conditions the court can impose is an interlock ignition device. This is in the alternative to a 120 day license suspension. An interlock ignition device allows you to keep your license, but you must blow under the legal limit for the vehicle to start.

For more information about DUI and DUI-Other (intoxication under the influence of controlled substances), check out this blog article .

If you need legal assistance, call us at 601-607-3156 .

www.craigpanterlaw.com

Craig Painter

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The qualified immunity defense in the context of a fatal vehicle chase

Thu, 14 Mar 2019 16:41:00 GMT

Police Chase

When a plaintiff sues a law enforcement officer for a violation of constitutional rights, the officer will almost always raise a defense called qualified immunity.

On March 8, 2019, the United States Court of Appeals for the Fifth Circuit handed down its decision in Moon v. Meachum . In its opinion, the court addressed the qualified immunity defense in the context of a fatal vehicle chase.

Facts of the case

Moon was riding his motorcycle at a high rate of speed. He was observed by Meachum, a Criminal District Attorney Investigator. Meachum gave chase and radioed for help.

Moon drove away so fast that he eluded Meachum. Moon got off the interstate and tried to hide, but he was spotted by another police officer. So, he took off again.

By the time Moon got back on the highway, Meachum was actually ahead of Moon. Meachum saw Moon coming up behind him at what was later determined to be 150 mph.

Meachum began to slow down and implement what was known as a “rolling roadblock.” Unfortunately, Moon’s rate of speed was so high that he struck Meachum’s vehicle in the rear and was killed.

Moon’s family files a Section 1983 claim.

Moon’s survivors filed suit against Meachum under 42 U.S.C. Section 1983 for “seizing” Moon in violation of the Fourth Amendment.

Meachum raised a qualified immunity defense. The lower court agreed with Meachum and dismissed the lawsuit. Moon’s survivors appealed.

Elements of the qualified immunity defense

Qualified Immunity

The determination of whether a law enforcement officer (or other government employee, for that matter) is entitled to qualified immunity includes two inquiries.

First, did the officer violate a constitutional right of the injured party?

Second, was that constitutional right “clearly established” at the time of the alleged misconduct by the officer?

The law allows a court to decide one question of both in this case, the Fifth Circuit focused only on the second question.

Was Moon’s right to be free of injury or death under these particular circumstances “clearly established” at the time of his death?

Somewhat uncharacteristically, the Fifth Circuit referred to this question as a “doozy”.

The court began by noting that a Section 1983 plaintiff bears a heavy burden of proof. A constitutional right is “clearly established” only if relevant case law has placed the issue “beyond debate.”

In making such an analysis, the court concluded that there were four applicable Commandments.

1. The court must frame the constitutional question with specificity and granularity.

The court began by noting that it was obviously beyond debate that the Fourth Amendment prohibits certain unreasonable seizures. But, the court said, that was not enough.

The United States Supreme Court has repeatedly told courts “not to define clearly established law that high level of generality.”

Instead, the question is whether the violative nature of the particular conduct at issue is clearly established. That is because qualified immunity should not be denied unless the officer had “fair notice” that his particular conduct was unlawful.

2. Clearly established law come from court holdings, not dicta.

The term “dicta” refers to language in a court opinion that is not essential to the actual holding. It is well-recognized that dicta is not law.

Thus, the Fifth Circuit explained that clearly established law can only be found in actual court holdings.

3. Overcoming qualified immunity is especially difficult in excessive-force cases.

As the court recognized, this is an area of law in which the result very much depends on the facts of each case. Thus, police officers are entitled to qualified immunity unless existing legal precedent “squarely governs the specific facts at issue.”

In addition, excessive-force claims often turn upon split-second decisions to use lethal force. “That means the law must be so clearly established that – in the blink of an eye, in the middle of a high-speed chase – every reasonable officer would know it immediately.”

4. The court must think twice before denying qualified immunity.

Finally, the Fifth Circuit noted how often the United States Supreme Court had reversed lower courts that had denied a police officer qualified immunity.

The court said that it would be “ill advised to misunderstand the message and deny qualified immunity to anyone but the plainly incompetent or those who knowingly violate the law.”

In light of all of this, the Fifth Circuit said that it was not beyond debate that a reasonable officer would know, in only seven seconds and in the midst of a high-speed chase, that Meachum’s rolling block violated the Fourth Amendment.

In the light of all of this, the Fifth Circuit affirmed the decision of the lower court to dismiss the case based upon qualified immunity.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

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Mississippi Civil Asset Forfeiture

Wed, 13 Mar 2019 17:58:00 GMT

Unlawful search and seizure

Mississippi Civil Asset Forfeiture – The United States Supreme Court’s Recent Opinion

Mississippi is one of four states that does not recognize that the excessive fines clause of the Eighth Amendment to the United States Constitution applies to the states.

As the result of a new decision by the United States Constitution, that will change.

On February 20, 2019, The United States Supreme Court ruled in Timbs v. Indiana (586 U.S. ___ (2019) that the excessive fines clause applies to ALL the states.

Without going into too much history and US constitutional development, I will try to be brief. Incorporation refers to the United States Constitution’s Amendments applying to the States. The American Civil War and the expansion of the Federal government saw many changes in the application of these laws beginning in the late 19th Century. The civil liberties seen today were not once guaranteed. The Bill of Rights only applied to the Federal Government upon its inception.

Civil Asset Forfeiture

Although called Civil Asset Forfeiture, this nomenclature is, in fact, a misnomer. It usually involves a person accused of a crime losing their property, often money and vehicles, before they are even indicted or convicted during a criminal proceeding.

An accused person is guaranteed the right to defend themselves. This is the beauty of the American legal system. For example – a right to a trial by a jury of their peers, a right to counsel, a right to confront witnesses, a right to subpoena witnesses, i.e. ; a right to a fair trial. Innocent until proven guilty.

Civil asset forfeiture distorts this concept. When a state agency seizes and disposes of someone’s assets, who has not yet been convicted of their crime, they are being denied, in theory, their rights to due process, and also rights explicitly stated in the 8th Amendment: Excessive Fines.

Excessive Fines

In Timbs v. Indiana , the United States Supreme Court ruled that a vehicle seized under Indiana forfeiture laws, valued at $42,000, was excessive. This fine was four times the maximum amount of fines the accused would have incurred upon sentencing. The Court saw this forfeiture as a punitive measure. The value of the asset seized was grossly disproportionate to the crime, and excessive under the 8th Amendment.

Article by Richard Poole Noel, III

If you have been accused of a crime, or you have received a notice of forfeiture, call us at 601-607-3156. We previously gave an overview of civil asset forfeiture you can find on our blog here.

601-607-3156.

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New False Arrest case in the Fifth Circuit

Mon, 11 Mar 2019 18:03:00 GMT

False Arrest

On March 11, 2019, the United States Court of Appeals for the Fifth Circuit issued its opinion in Ulrich v. City of Shreveport, et al ., involving a claim for false arrest.

The facts of the case

A detective in the Shreveport Police Department swore out an affidavit stating that Ulrich had committed battery.

After investigation, Bossier Child Protective Services concluded that there was no cause to proceed. The charges against Ulrich were dismissed in February 2008.

Subsequently, the Shreveport City Attorney and the detective who originally swore out the affidavit sent the case to district court for further prosecution.

A bench warrant was issued for Ulrich’s arrest. About three weeks later, Ulrich was released and the charges dropped.

Ulrich filed suit in federal court pursuant to 42 U.S.C. Section 1983, alleging violations of her Fourth and Fifth Amendment rights. (Read more about Section 1983 here .)

The claim against the detective for false arrest

False Affidavit

In pursuing her claim against the detective, Ulrich relied primarily upon a rule of law known as the “ Franks violation.”

The term “ Franks violation” comes from the decision of the United States Supreme Court in Franks v. Delaware , 438 U.S. 154, 155-56 (1978).

To establish a Franks violation, a plaintiff who was arrested based upon the filing of a false affidavit by law enforcement must demonstrate:

(1) the officer filing the affidavit in support of the arrest warrant included a false statement knowingly and intentionally, or with reckless disregard for the truth, and

(2) the false statement was necessary to the finding of probable cause and, thus, to the issuance of the arrest warrant (in other words, the judge would not have issued the warrant but for the false information).

The Fifth Circuit concluded that Ulrich could not prevail in her claim against the detective because his affidavit was not the legal cause of Ulrich being arrested.

Specifically, the court concluded that the arrest warrant issued for Ulrich was based upon her failure to appear in district court in response to two prior summons.

The detective had played no role in the decision of the district court to issue that arrest warrant. He had only been involved in the prior arrest of Ulrich.

The decision of the detective to refer the case to district court (even though the charge against Ulrich had already been dismissed)

As to this, the Fifth Circuit held that Ulrich only alleged simple negligence.

The Court said: “To allege a Franks claim, Ulrich had to plead that the detective made a ‘knowing and intentional omission.’ Her allegations of simple negligence fail to meet that standard.”

The Fifth Circuit also examined claims under Louisiana law against the detective and the City of Shreveport. It found those to be without merit and affirmed the dismissal of those claims.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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The sham affidavit rule

Tue, 19 Feb 2019 23:19:00 GMT

Affidavits

On February 18, 2019, the United States Court of Appeals for the Fifth Circuit handed down its decision in Winzer v. Kaufman County, et al. One of the issues the Court addressed is the sham affidavit rule.

How are affidavits used in federal court?

Affidavits can be used in any number of circumstances. They are most commonly used, however, in connection with a defendant’s motion for summary judgment.

Under Rule 56 of the Federal Rules of Civil Procedure, a defendant can avoid a jury trial by filing a motion and demonstrating two things:

First, that none of the material facts are in dispute, and

Second, that the defendant is entitled to judgment as a matter of law.

Disputes about material facts

As noted, a defendant is not entitled to summary judgment if the material facts are in dispute. If the facts are disputed, the dispute must be resolved by a jury.

Here is one example: Assume that a plaintiff was in an automobile accident and sued the defendant, claiming that the defendant negligently caused the accident.

Yet, the defendant and all of the other witnesses sign affidavits stating that the defendant was operating her automobile properly. The plaintiff, however, states that he is not sure what happened because he never saw the defendant.

In that type of situation, all of the evidence presented by the defendant proves that she was operating her automobile properly. And, the plaintiff does not have any evidence to contradict that. Thus, the material facts are not in dispute. The defendant is entitled to summary judgment.

Creating issues of fact by counter-affidavit.

Continuing with our scenario, assume that instead of saying he did not see the defendant’s car, the plaintiff signs an affidavit stating that he observed the defendant speeding and crossing over the center line of the road to strike the plaintiff’s car.

In that case, the defendant and her witnesses are telling the court one thing, and the plaintiff is telling the court another thing.

By filing an affidavit stating what happened, the plaintiff has created a dispute as to a material fact (that is, whether the defendant was driving negligently). Under Rule 56, the court cannot decide which version of the facts is correct. That is a decision that must be made by jury.

The sham affidavit rule

This rule was developed by the federal courts to deal with plaintiffs who try to create an issue of fact by filing an affidavit that contradicts something the plaintiff previously stated.

Again, returning to our scenario, assume that the plaintiff previously gave a sworn statement in which he said he never saw the defendant’s automobile. So, the defendant moves for summary judgment and submits affidavits from herself and her witnesses stating that she was not driving negligently.

Then, assume that the plaintiff files an affidavit and, for the first time, claims that he did see the defendant driving negligently. In that situation, the plaintiff is filing an affidavit that contradicts his prior statement, and he is doing so simply for the purpose of trying to get past summary judgment and take the case to a jury.

That is where the sham affidavit rule comes in. As the Fifth Circuit stated in Winzer , “a district court may refuse to consider statements made in an affidavit that are ‘so markedly inconsistent’ with a prior statement as to “constitute an obvious sham.’ ”

The rule applies only when an affidavit “directly contradicts” prior statements. If the affidavit is not “inherently inconsistent” with a prior statement, the rule does not apply.

The sham affidavit rule is also inapplicable when the affidavit simply supplements, rather than contradicts, an earlier statement.

In Winzer , the defendants contended the affidavit contradicted statements made in the plaintiff’s original complaint. The Fifth Circuit found it significant that the original complaint was a five sentence, hand-written statement placed into the “limited space of a form-petition for pro se litigants.” The Court thought that the plaintiff should not be punished for not putting more detail into the complaint.

Drafting tip

As a drafting tip, lawyers should consider this: Rule 8 only requires a “short plain statement of the claim.”

More detail put into a Complaint, however, gives the defense the opportunity to argue that subsequent affidavits are “shams” because they address matters that are not contained in the Complaint.

Yet, most lawyers know that even after they file a Complaint, they continue to learn more about the underlying facts as the case goes on. A good mixture of specific, known facts and general allegations may be the best approach.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Hostile workplace environment in the government

Sun, 17 Feb 2019 22:26:00 GMT

Hostile Workplace in the Government

On February 14, 2019, the United States Court of Appeals for the Fifth Circuit handed down its revised opinion in Johnson v. Halstead .

The case involved a claim by Johnson, a black male, that he had been subjected to a hostile work environment based on his race.

Specifically, Johnson was a sergeant with the Fort Worth Police Department. He claimed that over a three-year period he was subjected to a campaign of isolation, harassment, and ridicule because he is African-American.

The City hired investigators to look into his complaint and, after doing so, they agreed with Johnson.

When Johnson filed suit, he did not sue his harassers, however. Instead, he sued the Chief of Police, Jeffrey Halstead, for failing to take action and for allowing the harassment to continue.

Halstead raises a qualified immunity defense

Johnson filed what is called a Section 1983 claim. Section 1983 is a federal statute that allows lawsuits to be filed to be filed by persons who have been deprived of certain constitutional rights by government officials.

Many government officials, including police officers, can defend these lawsuits by invoking a qualified immunity defense. This means the government official will be immune from a lawsuit unless the injured party can prove two things:

First, that the government employee did, in fact, commit a constitutional violation, and

Second, that at the time of the violation, it was clearly established that the conduct at issue violated the Constitution.

In examining Halstead’s qualified immunity defense, the Fifth Circuit noted that a supervisor can be held liable for the hostile work environment created by his subordinates “if that official, by action or inaction, demonstrates a deliberate indifference to a plaintiff’s constitutional rights.”

Halstead argued that this rule of law was true if the hostile work environment was based on sex, because it was clearly established that such violated the Equal Protection Clause of the Constitution.

He took the position, however, that it was not clearly established that such would violate the Equal Protection Clause if the hostile work environment was based on race.

The Fifth Circuit quickly rejected Halstead’s position. The Court held “it would necessarily follow that if the Constitution makes it unlawful to create a hostile workplace in response to a public employee’s sex, then it is also unlawful to engage in that hostility in response to a worker’s race.”

How much is necessary to create a hostile work environment?

Hostile Workplace – How much is too much?

Having rejected Halstead’s qualified immunity defense, the Fifth Circuit turned to the question of whether the facts alleged by Johnson were sufficiently severe to create a hostile work environment.

The Court explained that a hostile work environment exists when the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”

The United Supreme Court has held that “simple teasing, offhand comments, and isolated incidents” are not enough to create a hostile work environment.

In Johnson’s case, however, the Fifth Circuit found that the harassment was so severe that it undermined Johnson’s ability to perform his job. As a result, the Court concluded that he had alleged sufficient facts to allow his lawsuit to proceed in the lower court.

This decision is a good example of courts drawing a line between minor incidents and severe harassment that creates a hostile work environment. These are the same rules the courts apply to non-government jobs.

If you believe you have been subjected to a hostile work environment based upon your sex, race, national origin or other protected class, give us a call to discuss your situation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Tax sales and deeds

Tue, 12 Feb 2019 16:07:00 GMT

Tax Sales and Deeds

Have your property taxes been sold?

The tax sale process

Like many other states, Mississippi counties collect property taxes. The county holds a local overbid auction to sell delinquent property taxes to investors. This is an efficient way for the county to continue to stay above water, and for investors to obtain a solid investment fixed at a set rate. State statutes set the rate at 1.5 percent per month (18% APR), and the county collects the payment and returns the money to the investor. Not a bad deal!

Tax deeds

What happens if the taxes are never paid? Property owners have have a couple of years to redeem the sale. When this doesn’t happen, the sale matures and the purchaser gets a tax deed. Depending on the value of the property, tax deeds have a certain face value. If the owner repeatedly fails to pay the taxes, then the tax deeds can be negotiated to one investor who may be interested in obtaining the property by petitioning the courts.

Cleaning up the title

This is a complicated legal process. The investor has to petition the chancery court of the county and notice the property owner (oftentimes the owner’s estate) or other interested parties; such as known heirs and creditors. Unknown interested parties must be noticed by publication.

A change in the law: a new way to invest

As of 2018, Mississippi began implementing an electronic bid system. Before this, an investor had to physically appear at a live auction. With the online system, hopefully the county and the investors can save time and money. At the Panter Law Firm, we can guide you through the process, whether you are a property owner or heir, or an investor.

For an overview of ad valorem (Latin for “according to value,” the taxes you pay for county property, school district, water districts, etc.), click here . Give us a call at Panter Law Firm, PLLC.

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Sexual harassment in the workplace by third parties

Thu, 07 Feb 2019 21:58:00 GMT

Sexual Harassment at Work

We previously wrote about the law of sexual harassment here . Not surprisingly, most claims of sexual harassment are directed against an employee’s supervisor or co-worker.

Title VII’s prohibition on sexual harassment, however, is not limited to misconduct by a supervisor or coworker. A claim can also arise when a third party, such as an independent contractor or a customer of the business, is guilty of the harassment.

The Fifth Circuit looks at an unusual situation

On February 6, 2019, the United States Court of Appeals for the Fifth Circuit issued its decision in Gardner v. CLC of Pascagoula, LLC .

In that case, Gardner worked as a Certified Nursing Assistant at CLC’s an assisted living facility. She claimed that one of the residents at the facility would grab her, make sexual comments, and make sexual requests on a daily basis.

It was well known throughout the facility that this particular resident engaged in that type of behavior.

In addition, Gardner specifically went to her superiors to complain and ask for assistance. One supervisor laughed, and the other told her to “put her big girl panties on and go back to work.”

Although the details are not important, Gardner was subsequently fired for how she responded to a particularly difficult situation in which the resident was both groping her and punching her.

What did Gardner need to prove?

The Fifth Circuit began its discussion with this statement: “Because the ultimate focus of Title VII liability is on the employer’s conduct – unless a supervisor is the harasser, a plaintiff needs to show that the employer knew or should have known about the hostile work environment yet allowed it to persist.”

The court also noted that the resident in question had a variety of physical and mental illnesses, including dementia, traumatic brain injury, and personality disorders. That factor, the court said, should also be taken into account.

The lower court rules for CLC

Gardner filed her lawsuit in District Court. That court concluded that a hostile workplace did not exist. Specifically, the court said it was not clear that “the harassing comments and attempt to grope and hit her was beyond what a person in Gardner’s position should expect of patients in a nursing home.”

The Fifth Circuit reverses

On appeal, the Fifth Circuit emphasized the “complication” that arises from the fact that the harasser was a resident of an assisted living facility suffering from dementia.

The court acknowledged the difficult issue of deciding “what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia.”

Considering all of the facts, the Fifth Circuit concluded the issue needed to be decided by jury. “A jury could conclude that an objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly that she could not work for three months, and have her complaints met with laughter and dismissal by the administration.”

This decision emphasizes the importance of an employee who is being harassed by a third-party reporting that to her superiors and asking for assistance.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Transgender individuals and workplace discrimination

Thu, 07 Feb 2019 20:40:00 GMT

Workplace Discrimination

A new decision from the United States Court of Appeals for the Fifth Circuit touches upon, but does not decide, whether Title VII prohibits discrimination against transgender individuals.

We have written here before about the federal law known as Title VII that prohibits discrimination based on “race, color, religion, sex and national origin.”

When originally adopted, the prohibition against sex discrimination was intended to protect the rights of women in the workplace.

Over time, the case law interpreting Title VII has evolved. It is now recognized, for example, that a female employer can be held liable for discriminating against a male employee.

What about sexual orientation and transgender status?

In recent years, questions have arisen as to whether the prohibition on sex discrimination applies to sexual orientation and/or transgender status. Some federal courts have concluded that it does.

The Fifth Circuit (which embraces Mississippi, Louisiana and Texas), however, has not yet done so.

In 1979, in the case of Blum v. Gulf Oil Corp ., the Fifth Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. That case has never been overturned.

39 years later

In 2018, the issue again came before the Court in the case of Wittmer v. Phillips 66 Company .

Wittmer, a transgender woman, applied for and got a job with Phillips 66. Subsequently, Phillips 66 withdrew the job offer.

Wittmer contended that the job offer was withdrawn because Phillips 66 learned she was a transgender woman. Phillips 66, on the other hand, claimed that the offer was withdrawn because Wittmer had been dishonest in her job application.

The lower court where Wittmer filed her lawsuit noted that in the last two years, three other circuit courts of appeal had ruled that Title VII prohibited discrimination on the basis of either sexual orientation or transgender status.

The lower court found these decisions to be persuasive and concluded that Title VII should be interpreted the same way in the Fifth Circuit.

On appeal, Phillips 66 took no position on that question. Instead, it simply asked the Fifth Circuit to conclude that Wittmer had not presented any evidence that her transgender status played a role in the decision to withdraw the job offer.

The Equal Employment Opportunity Commission filed an amicus brief (that is, a “friend of the court” brief) asking the Fifth Circuit to rule that Title VII does indeed prohibit discrimination on the basis of transgender status.

The Fifth Circuit declines to act

Although presented with the opportunity to make such a ruling, the Fifth Circuit declined. The court found it unnecessary to answer that question because, even if such discrimination was prohibited, Wittmer had failed to present any evidence that Phillips 66 based its decision to withdraw the job offer because of her transgender status.

For now, in the Fifth Circuit, Title VII does not prohibit discrimination on the basis of sexual orientation or transgender status. Note : In June of 2020, the United States Supreme Court ruled that Title VII does indeed prohibit discrimination on the basis of sexual orientation and/or transgender status.

Looking at the trend throughout this country on such issues, however, it seems inevitable that such a ruling will be made sometime in the near future.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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New verdict in a civil rights lawsuit!

Tue, 05 Feb 2019 21:59:00 GMT

Civil Rights

On January 14-16, 2019, S. Craig Panter teamed up with attorney Ronald E. Stutzman, Jr., to try a civil rights lawsuit in the United States District Court for the Southern District of Mississippi. The Honorable Carlton Reeves presided.

Mr. Panter and Mr. Stutzman represented Donna Sturkin in the suit against Vicky Patrick.

Donna Sturkin contended that while she was a participant in a drug court program, Vicky Patrick was her probation officer. According to Ms. Sturkin, on multiple occasions, Vicky Patrick falsely reported to the judge who presided over the drug court program that Ms. Sturkin had tested positive for alcohol.

Ms. Sturkin testified that these reports caused the judge to send her to jail several times as a punishment. Not only did Ms. Sturkin lose her liberty, she lost income and jobs. She also suffered mental and emotional distress.

A unanimous jury found that Vicky Patrick had violated Donna Sturkin’s civil rights guaranteed by the due process clause of the Fifth Amendment to the Constitution. The jury awarded her the sum of $350,000.

The law also allows Ms. Sturkin to recover her attorney’s fees and expenses of litigation. A request for those is in process.

This marks the 7th time Mr. Panter and Mr. Stutzman have joined forces to successfully try or settle a case involving civil rights violations.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Two types of Guaranties by S. Craig Panter

Sat, 22 Dec 2018 22:46:00 GMT

Two types of Guaranties

Guaranties are common in the world of banking. Often, a bank will only loan money to a borrower if someone else agrees to guarantee repayment of the loan.

In these situations, there are three parties – – the borrower, the lender, and the guarantor.

Not all guaranty agreements are equal, however. Before signing one, it is important to know the two primary types of guaranties.

Guaranty of payment

This type of Guaranty is the most favorable to the lender. When someone signs a Guaranty of payment, she is telling the lender that if the borrower does not repay the loan, the guarantor will.

With this type of guaranty, the lender does not have to “go after” the borrower first. If the borrower defaults, the lender can insist that the guarantor immediately pay.

Guaranty of collection

A guaranty that is more favorable to the guarantor is the guaranty of collection. With this type of guaranty, the lender must first pursue the borrower. Here, the lender is often required to reduce its claim against the borrower to judgment and then try to collect it before turning to the guarantor.

How to determine the type of guaranty before signing

The language of the guaranty controls the question of whether the guaranty is one of collection or payment.

To avoid any ambiguity, banks usually add the phrase “this is a guaranty of payment and not collection.”

If you are considering signing a guaranty for someone else’s loan, read our prior post here on the subject.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Denied Social Security?

Wed, 12 Dec 2018 16:37:00 GMT

Denied Benefits?

Denied Social Security Benefits?

If you were denied a disability claim (SSDI); don’t give up . There is an appeal process. Hire an attorney to discuss your case. This matter is time sensitive in determining your onset date of disability.

You worked for years with the understanding that you have insurance; it is not called social security for no reason. Social Security benefits are Federal law, and have an entire administration, court structure, and regulatory laws based upon it.

A Mississippi Law Firm

At The Panter Law Firm, PLLC , we work throughout Mississippi and have access on a case-by-case basis to law firms in other states. It is our mission to represent people who have serious legal questions and need advice and representation.

Social Security Disability

Without going into detailed history, the Social Security Act went into effect in the 1930’s. During this era, The United States of America had gained an edge in the national economy because of the booming industry of the generations prior. This took an industrious and hard-working population.

The National Work Force

Our population is indeed proud, and its workers are also. If you have been employed, then you have likely been paying toward your benefits. If you are no longer able to work, call us to discuss your eligibility for disability benefits at 601-607-3156 . Check out out our website and blog if you would like additional information about our legal services and experience.

Panter Law Firm, PLLC at (601) 607-3156 .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Need a clean record?

Tue, 20 Nov 2018 17:29:00 GMT

Need a clean record?

Legal Strategy

You can expunge the record of certain convictions, and most arrests, by petitioning the court who had original jurisdiction. State laws define whether or not you can qualify.

A change in the law

Clean your record

Find out if you can get an expungement: call us at (601) 607-3156 .

Even if you are not eligible for an expungement, you may have more options to restore lost rights. This includes voting rights, right to possess a firearm, hunting privileges, and more. Talk to an attorney to see what you qualify for. For general information about Mississippi courts, look here .

601-607-3156

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Exceptions to at-will employment

Mon, 12 Nov 2018 20:50:00 GMT

Get a LAWYER

Exceptions to at-will employment

Mississippi follows the common law rule that employment contracts drafted with indefinite terms regarding duration may be terminated at the will of either party. Butler v. Smith , 35 Miss. 457, 464 (1858). This is commonly referred to as “at-will” employment, and is the norm in States whose legislature does not tend to make many employment or labor laws.

But there are also federal laws. You may have heard of the terms “Lincoln Law,” or “ qui tam ,” or “whistle-blower.” Or other issues like gender discrimination; discussed here , and hourly compensation discussed here . Click here if you have general questions about Mississippi employment law. If you feel you have been wrongfully terminated because you were trying to do the right thing, consider the following…

Have you been fired for reporting illegal activity?

If you believe your employer fired you for reporting illegal conduct, or for trying to NOT engage in that illegal conduct, Mississippi makes its own exception to the common law of “at-will” employment.

Although an employee in Mississippi can be fired for “good reason, bad reason, or no reason at all,” the refusal to participate in illegal activity, or reporting illegal activity, and being terminated for those reasons, is actionable. See McArn v. Allied Bruce-Terminix Co., Inc. , 626 So.2d 603, 606 (Miss., 1993).

What exactly constitutes illegal activity?

Just because you feel someone did you wrong, or was behaving inappropriately, does not necessarily mean they are violating any laws. Therefore, you should consult with an attorney who is licensed to practice law in the state you are working or dwell in. The law constantly evolves. The McArn analysis only provides a cause of action if certain fact-sensitive qualifications are met. For example, if you have been even slightly involved in the illegal activity, there may be a chance you have an unsuccessful case against your employer. Don’t second-guess, call an attorney. Call Panter Law Firm, PLLC at (601) 607-3156 .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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The parol evidence rule – what is it exactly?

Mon, 29 Oct 2018 16:46:00 GMT

Contracts and the Parol Evidence Rule

The term “parol evidence” refers to evidence that a party attempts to use to supplement or contradict the terms of a written contract. It can refer to oral testimony or additional documents.

Although the term “evidence” is used, the rule is not an evidentiary rule. Instead, it is a rule of substantive law.

This article will address situations in which parol evidence is admissible and other situations in which the court must exclude it.

Parol evidence may not vary a complete and unambiguous contract.

It is a well-established rule of law that when the parties have entered into a complete and unambiguous contract, the courts will enforce the contract as written.

As a result, parol evidence (also referred to as extrinsic evidence) cannot be introduced by a party to change the terms of that contract.

For example, if two parties enter into a contract for the sale of gravel at $50 a ton, the seller cannot offer evidence that the parties had a verbal agreement that it would really be $60 a ton.

Parol evidence can be offered to complete or explain a contract.

Returning to the hypothetical regarding the sale of gravel, suppose there are several different grades of gravel on the market where the parties live. But, the contract merely refers to “gravel”.

In that instance, parol evidence should be admissible to prove which grade of gravel the parties were discussing.

Similarly, extrinsic evidence is admissible to explain an ambiguous term.

For example, if the parties entered into a contract whereby Party A was to provide “services” to Party B, if the term “services” is not defined in the contract, the court can accept parol evidence to determine what the services really were.

It is also admissible to prove fraud in the formation of the contract.

In this scenario, assume Party A enters into a contract to sell land to Party B for $50,000. In addition, Party A says that Party B will also have access to Party A’s lake on an adjoining tract. The contract and deed, however, make no reference to the lake, and Party A later refuses access.

In that situation, Party B could offer evidence of Party A’s misrepresentation in order to set aside the contract for the sale of land.

A few pointers

The foregoing is a general overview of the parol evidence rule, but it reveals the importance of using precise language in drafting contracts. A few pointers I have found useful are these:

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

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Have you been sued or charged with a crime?

Fri, 05 Oct 2018 15:09:00 GMT

Hire an attorney at Panter Law Firm

Sued? Charged with a crime?

Talk to an attorney. Call the Panter Law Firm, PLLC , at 6016073156 . If this is your first time involved in a legal action, consider the following information…

Judicial Districts

Mississippi has 82 counties. There are 20 distinct Chancery and Circuit Court districts. For example, Rankin County makes up the entirety of the 20th Chancery District. As does Hinds (the 5th Chancery District). Madison County is in the same District with Yazoo, Holmes, and Leake Counties (the 11th Chancery District). Scott County, Newton County, and Jasper County comprise the 2nd Chancery District.

Now let’s look at the Circuit Courts. The 20th Circuit Court District includes the counties of Madison and Rankin. The 8th Circuit Court District includes the Counties of Leake, Scott, Neshoba, and Newton. Yet again, Hinds has its own district (the 7th Circuit District).

I use this for example because The Panter Law Firm, PLLC , is located in Madison City of Madison County, and these are some local judicial districts.

Chancery Jurisdiction

The Chancery courts have specific jurisdiction relating to traditional matters of equity. The Mississippi Constitution, Article 6, Section 159, enumerates these matters:

(a) All matters in equity; (b) Divorce and alimony, (c) Matters testamentary and of administration; (d) Minor’s business; (e) Cases of idiocy, lunacy, and persons of unsound mind; (f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Circuit Court Jurisdiction

In contrast, the Circuit Courts have jurisdiction over felony criminal cases as well as jurisdiction over large civil claims for monetary damages. Both the Chancery and Circuit Courts have appellate jurisdiction over the Municipal and Justice Courts, described infra .

Municipal and Justice Courts

Many folks may be most familiar with city courts and justice courts. Although their jurisdiction can be quite broad, most of the time the city (also known as municipal) court judge will be dealing with traffic offenses and misdemeanors issued by local law enforcement officers. The justice court is the go-to county court, that although it may deal with traffic offenses and misdemeanors, it can also hear civil cases where the amount in controversy does not exceed $3,500.

County Courts

Mississippi also has some counties that also have a County Court, in addition to the county Justice Courts, which I call “County-County Court.” This includes the following counties: Adams, Bolivar, Coahoma, Desoto, Forrest, Hancock, Harrison, Hinds, Jackson, Jones, Lamar, Lauderdale, Lee, Leflore, Lowndes, Madison, Pearl River, Pike, Rankin, Warren, Washington, and Yazoo.

Another key thing to remember, is that a municipal court judge, a county justice, and a county court judge can also issue arrest or search warrants on potential felony cases.

I have been sued or charged with a crime. What now?

I explained the judicial structure in Mississippi; to help you help your attorney. It is very important for your schedule and for the schedule of the attorney you hire to have plenty of time to prepare your case – – Lawyer up now. Almost all attorneys will not be able to take your case if you try to hire them the day before a hearing.

Feel free to contact us by phone at 6016073156 from out of state, or schedule an in person appointment. The following counties and cities are within a short distance from our office:

Counties: Attala, Choctaw, Copiah, Hinds, Holmes, Jasper, Jones, Lincoln, Leake, Madison, Neshoba, Newton, Rankin, Scott, Simpson, Smith, Yazoo

Cities: Brandon, Byram, Jackson, Flowood, Forest, Lake, Madison, Morton, Pelahatchie, Philadelphia, Richland, Ridgeland, Sebastopol, Terry

If you think you have a potential lawsuit, or are currently being sued, in addition to calling us, please refer to our blog. The articles may shed light on your own specific inquiry. For example, check out the following blog articles about employment law , contract review , criminal law , civil rights and liberties , wills, estates, and trusts , and the many other articles you can read at the blog page of our website that is updated frequently.

601-607-3156

www.craigpanterlaw.com

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Planning an estate – what should I do?

Wed, 26 Sep 2018 19:17:00 GMT

Wills, Estates, and Trusts

Planning an estate – what should I do?

Are you worried about family fighting over your property after your death?

Everyone being on the same page – something to think about when you want to provide for your family or loved ones when you leave this world. Accomplish this literally…

Whether you have real estate or personal property, you can devise and bequeath it with particularity in a will.

An executor or executrix follows the devises (real estate) and bequests (all other property) of the will. This can be an easy task, but when the will is ambiguous or otherwise silent on how to distribute the property properly, there could be problems.

For example, a contesting family member may be seen as contentious. This person has a right to protect his or her own interests, but the last thing you want is hostility between family members. Furthermore, this person requires their own attorney and incurs additional legal fees and expenses that could be taken out of the estate when closed.

Get everybody on the same page to avoid estate difficulties.

Other than an issue like undue influence, there are many reasons a potential beneficiary could contest a will or otherwise hang up an estate. To avoid family discord and expensive litigation, specificity in the document itself is key. You should contact your attorney or schedule an appointment with us, especially if:

You don’t have a will;

If your will was created many years ago;

Or if you have had a significant life change since you last made a will.

Sometimes there are other options to transfer property which may bypass the formalities of probate. Most often, this is by deed wherein a spouse has rights of survivorship.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110,

601-607-3156

www.craigpanterlaw.com

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The blue pencil and noncompetes – time for a change.

Mon, 17 Sep 2018 18:56:00 GMT

Blue Pencils and Non-Competes

IMPORTANT NOTICE! IN APRIL OF 2024, THE FTC ANNOUNCED A NEW RULE THAT GREATLY LIMITS THE ENFORCEMENT OF NON-COMPETE AGREEMENTS. THAT RULE WILL, FOR THE MOST PART, MAKE FOLLOWING DISCUSSION OF LIMITED IMPORTANCE.

We previously wrote here about non-compete agreements and here about non-solicitation agreements. In this post, we will address a concept known as the “blue pencil.”

What is the blue pencil?

As our prior article explains, in Mississippi, a non-competition agreement must be reasonable in scope. The term “scope” generally refers to (i) the time over which the agreement will remain in effect and (ii) the geographic area in which the agreement will apply.

Let us use an example. Suppose an employee goes to work as a salesperson for a company located in Yazoo County. That company only performs sales in Yazoo, Humphreys, and Holmes Counties.

Depending upon the nature of the salesperson’s job and access to confidential information, a non-compete agreement with a duration of one year and a geographic area covering only those three counties might be reasonable.

On the other hand, an agreement with a duration of five years and a geographic area covering the entire state of Mississippi would probably be unreasonable.

The term “blue pencil” refers to the practice of Mississippi courts in reducing an unreasonable scope of a non-compete agreement down to something that is reasonable. See, e.g., Redd Pest Control Co. v. Heatherly , 157 So.2d 133 (Miss. 1963):

The second question raised by appellant is whether an agreement restricting competition which is reasonable as to part of the territory described in the agreement but unreasonable as to the rest should be enforced as to the reasonable part. We hold that the agreement should be enforced as to the reasonable part of the area, and that the chancellor should have enjoined Heatherly from competition with Redd within the City of Tupelo and a fifty-mile radius thereof within the State of Mississippi.

See also , Herring Gas Co., Inc. v. Magee , 813 F.Supp. 1239 (S.D. Miss. 1993) [If a court finds that the limitations contained in a covenant not to compete are unreasonable, then the court will modify the limitations so that they are reasonable].

So, returning to our earlier example, a court may reduce the term of five years down to one year and change the geographic area from the entire state of Mississippi down to just three counties.

What is the problem with the blue pencil approach?

I submit that there are two specific problems and that Mississippi courts should abandon that procedure. Let me explain why.

The blue pencil approach is contrary to established Mississippi contract law.

Mississippi courts have repeatedly said that they will enforce agreements made by the parties but will not make a contract that the parties themselves did not make.

“A court cannot subtract, add to or modify the terms of a contract that already is in existence.” Townsend v. Townsend , 859 So. 2d 370 (Miss. 2003).

“Courts cannot write into a contract that which fails to appear, nor can it interpret a contract liberally just to help one party.” Southern Natural Gas Co. v. Fritz , 523 So.2d 12 (Miss. 1987).

Yet, when a court takes a “blue pencil” to a non-competition agreement, it is doing exactly that. It is making a contract that the parties did not make for themselves.

The courts of some states refuse to blue pencil the contract and will simply declare an unreasonable non-compete agreement to be unenforceable. This is known as the “red pencil” approach.

One example is the state of Nebraska. As that state’s supreme court has stated: “We have declined to apply the ‘blue pencil rule.’ We have found that reformation is tantamount to the construction of a private agreement and that the construction of private agreements is not within the power of the courts.” Unlimited Opportunity, Inc. v. Waadah , 861 N.W.2d 437 (Neb. 2015).

Employers are encouraged to draft very broad non-compete agreements.

In most instances, when parties draft a contract, they want to be sure the provisions of the contract are enforceable. They want to be reasonable and precise in the language they use.

But, the blue pencil approach gives an employer justification for drafting a non-compete agreement that is overly broad rather than one that is reasonable.

The employer can do this with the knowledge that if a court later decides to blue pencil the contract and reduce the scope to something reasonable, it has lost nothing in the process.

This creates an unreasonable burden on the employee. The employee will now have to engage in expensive litigation simply to get the court to re-draft the non-compete agreement to read as it should have at the beginning.

In the meantime, as the litigation progresses, the employee may decide it is necessary to comply with the non-compete as drafted, even though the employee might be willing to comply with a more reasonable agreement.

An excellent discussion of these issues by Griffin Toronjo Pivateua can be found in Putting the Blue Pencil Down – An Argument for Specificity in Noncompete Agreements , 86 Nebraska Law Review, page 672. Click here to read the article.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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Sexual harassment – what is it and what can be done?

Thu, 13 Sep 2018 19:20:00 GMT

Sexual Harassment at Work

Although our society has moved beyond the “boy’s club” work culture of the ’50s and ’60s, sexual harassment in the workplace continues to be a serious problem.

With the recent advent of the #metoo movement, this problem is getting even more attention.

In this regard, the law protects both men and women from sexual harassment. The reality, however, is that the vast majority of victims are women.

In this post we will address several legal issues that arise with this type of workplace misconduct. We will define it and examine the legal remedies available to victims of harassment.

Federal law or Mississippi law.

Let us start with the question of which body of law defines and prohibits sexual harassment in the workplace. Far and away, federal law provides the greatest level of protection to employees.

The primary source of federal protection is Title VII of the Civil Rights Act of 1964. This law prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

It should be noted, however, that Title VII does not apply to all employers. It only covers employers who have a certain number of employees. There is a specific formula, but generally speaking, an employer must have 15 or more employees to be subject to Title VII.

With respect to discrimination “on the basis of sex,” when it was first adopted, Title VII was focused preventing employers from discriminating against women in favor of men in matters such as hiring and firing.

Over time, however, federal courts and the Equal Employment Opportunity Commission (“EEOC”) began to recognize sexual harassment against women as a form of discrimination “on the basis of sex.”

It is now firmly established that sexual harassment in the workplace violates Title VII.

Let us touch briefly upon Mississippi law.

In Mississippi, there are no laws that prohibit sexual harassment at work.

Of course, if an employer has 15 or more employees, Title VII can be invoked. But, if an employee works for an employer with less than 15 employees, protection is very limited.

In that situation, about the only route an employee can take is to invoke Mississippi common law on assault and battery. That essentially means the employee would have to show that the harassment took the form of unwanted physical contact.

There may also be a claim under Mississippi law for intentional infliction of emotional distress, but the Mississippi Supreme Court has said such a claim will rarely arise in the employment context.

So, for the remainder of this article, we will focus on federal law.

Under federal law, what constitutes sexual harassment?

Federal law

Federal courts have recognized that sexual harassment can take many forms. The courts have, however, generally identified two broad categories.

Those two categories are (i) hostile work environment and (ii) quid pro quo . Let us look at each of those.

Hostile work environment

As just mentioned, harassment can take many forms, such as inappropriate advances, lewd comments, off-color jokes, unwanted touching, and other conduct that makes the employee feel uncomfortable, intimidated, or threatened.

The courts have made it clear that a single, isolated instance (unless it is very serious) will not rise to the level of having created a hostile work environment.

Instead, the court will look to determine whether multiple acts of misconduct has created a work environment that would be intimidating, hostile, or offensive to reasonable people.

Quid pro quo

This is a Latin phrase that means “something for something.” It is used in employment law to refer to situations where an employee is put in the position of having to tolerate sexual harassment (or provide sexual favors) as a condition of keeping her job.

This will occur when (i) the harasser is a supervisor or someone else with the power to fire, demote, reprimand or otherwise negatively affect the employee’s job and (ii) the harasser actually takes one of those negative actions.

Is the distinction between the two forms important?

Yes, and this is why.

First, a hostile work environment can be created by the employee’s co-workers and others beneath the employee in the chain-of-command.

On the other hand, quid pro quo claims are based upon misconduct by the employee’s supervisor or others above her in the chain-of-command.

Second, if an employee is the victim of quid pro quo harassment, the employer is usually liable for the violation, even if the employer did not actually know what the supervisor was doing.

With respect to hostile work environment claims, an employer can also be held liable for the misconduct of its other employees. But, in recent years the United State’s Supreme Court has held that the employer can raise a defense by showing:

(1) it exercised reasonable care to prevent and correct sexual harassment in the workplace (usually by having a written policy and a complaint process), and

(2) the employee unreasonably failed to take advantage of the process.

What about harassment coming from customers?

An employer’s liability is not limited to harassment committed by its own employees. If the employer becomes aware that customers are harassing an employee, the employer has a legal duty to take steps to prevent it and protect the employee.

This type of problem happens very often in the restaurant and bar industry. The employee has a right to an harassment-free workplace, regardless of whether the harassment comes from other employees or customers.

What should you do if you are being subjected to such harassment?

No means no.

First, tell the harasser his conduct is unwelcome. Do not laugh along at jokes that you find offensive just to get along. Do not ignore someone touching you when it is unwelcome.

Second, if the problem persists, and if your employer has an anti-harassment policy, follow it. If the employer does not have such a policy, nevertheless report it to the human resources department or someone with authority over the harasser.

In the meantime, keep records of what is happening and when. Be specific. Include records of any problems you have suffered, such sleeplessness, anxiety, doctor visits, counselor visits, etc.

Finally, if the problem persists, contact the EEOC and file a Charge of Discrimination.

In this regard, it is very important to know that you must first bring your complaint before the EEOC before you can actually file a lawsuit under Title VII. That does not mean, however, that you cannot have a lawyer to assist you before the EEOC.

What is the process before the EEOC?

If you are being harassed, personnel at the EEOC will assist you in filling out the forms necessary to file your Charge. They are very helpful.

Keep these deadlines in mind

1. If you want to pursue a claim, you must file your Charge with the EEOC within 180 days of the misconduct giving rise to your claim.

So, for example, if you were demoted for refusing to put up with a supervisor’s harassment, you would have 180 days from the date of the demotion to file the claim.

Determining the date of misconduct in a hostile work environment claim is, not surprisingly, a little harder. This is because it usually takes place over a period of time.

In these cases, the EEOC says that the Charge should be filed within 180 days of the last incident of harassment (although it will look at all prior acts of harassment in considering the Charge).

A potential pitfall, however, is that the EEOC may not conclude that the last incident of which you complained was actually sexual harassment.

Put another way, if you file your Charge 180 days after a co-worker makes a comment that you disapproved of, the EEOC may conclude that the statement was not actually sexual harassment and that you should have filed your Charge earlier based upon prior incidents.

If you want to file a Charge based upon hostile work environment but are uncertain as to your deadline, it is advisable to consult with a lawyer to make sure your Charge is filed in a timely manner.

What happens next?

The EEOC will work with you and your employer in an effort to resolve the problem and get you compensated.

If the EEOC is unable to resolve the dispute in a manner favorable to you, it will issue a Right-to-Sue letter and mail it to you. You will have 90 days in which to file a lawsuit or your claim will be barred.

What type of damages are recoverable for sexual harassment?

You are entitled to be compensated for all damages you can reasonably prove were caused by the harassment. Some of the more common damages are:

-lost income and benefits

-emotional distress

-medical bills

In extreme cases, you may also recover punitive damages.

In addition, if you prevail, the court is allowed to (and almost always does) make your employer pay your attorney’s fees and expenses.

Your employer may not retaliate against you for reporting harassment or filing an EEOC Charge.

You have the right to complain to your employer about harassment. You also have the right to file an EEOC charge if you have been the victim of unlawful sexual harassment.

In either event, your employer may not retaliate against you for doing so. Retaliation can take many forms, such as firing, demotion, reduction of hours worked, less favorable work assignments, and others.

Retaliation is a separate claim from a sexual harassment claim. So, even if you did not prevail on your sexual harassment claim, if your employer retaliated against you for making the claim, you have a whole new claim available to you.

You can read more about sexual harassment at the EEOC’s website .

If you have been the victim of sexual harassment or retaliation, please let us know if we can be of assistance.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

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My driver’s license was suspended, now what? Part 2

Wed, 12 Sep 2018 16:18:00 GMT

Suspended driver’s license part 2 by Richard Noel

My license is suspended, what can I do?

Other than failure to pay child support (previously mentioned in this post ,) or something common like failure to pay for a renewal of your license because you did not check to see that it was expired (there is a grace period, but it will cost you. See Miss. Code Ann. § 63-1-49), the reasons your license might be suspended or revoked would be traffic or criminal offenses covered by Title 63 of the Code, titled “Motor Vehicles and Traffic Regulations.”

For example, a judge may find you in contempt for “failure to pay a fine or fee or to respond to a summons or citation pursuant to a charge of a violation of this title.” Miss. Code Anno. § 63-1-51(f). A “violation of this title” could include any traffic offense, such as those listed below.

Example Number 1. Meeting or overtaking school bus

This is a serious offense that can result in jail time up to a year, fines from $350 to $1,500, and automatic suspension of your license for 90 days if it is a second offense. Miss. Code Ann. § 63-3-615.

Example Number 2. Disregard of traffic device

This could be anything, from failure to come to a complete stop at an existing stop sign, to disregard of a temporary traffic control device. An example of this would be a sign that is set up at a construction site to temporarily reducing the speed limit. See also Miss. Code Ann. § 63-3-503, which should modify the associated fines.

Example Number 3. Passing on the left

It may be common sense to pass slower traffic using the left lane, but there is also a statute that mandates it. Miss. Code Ann. § 63-3-609.

Example Number 4. Minimum speed limit

This may also be common sense – a vehicle travelling ten miles an hour on an interstate or highway is a dangerous obstruction. Yet again, there is also a statute declaring it an illegal activity. Miss. Code Ann. § 63-3-609. Travelling too slowly could get you a traffic citation.

Solutions? Consider consulting an attorney to see what your options and potential consequences are before you go to court.

Call the Panter Law Firm, PLLC, at (601) 607-3156 to schedule a consultation, or email us at rnoel@craigpanterlaw.com or assistant@craigpanterlaw.com .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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My driver’s license was suspended, now what?

Mon, 10 Sep 2018 19:38:00 GMT

Suspended driver’s license by Richard Noel

This is the first part of a series of posts about a suspended driver’s license.

Have you ever had your licensed suspended? In a place like Mississippi, where most people are dependent upon their own transportation, a driver’s license is a vital thing.

Why might my license be suspended?

There are many reasons your license could be suspended. Take for example this situation. You are working hard. Your ex-spouse or custodial parent of your child or children has an order declaring that you owe child support, payable every month.

An easy thing to do would be to have your employer send those payments to your spouse through a wage-withholding order. This may have been an agreed order. Whatever the circumstances are…

If you are behind on child support, even if you are trying your hardest to pay, a judge could find you in contempt and your license could be suspended by statute (Miss. Code Ann. §§ 93-11-157; 93-11-163).

In this particular situation, it could be in the alternative or in addition to you serving jail time. As strange as this may seem (how can I work to pay child support if I can’t go to work?), the fact of the matter is, it is meant to teach you a lesson. Before you go to court on a matter such as this, you should consult an attorney to see if you have a defense.

Call the Panter Law Firm, PLLC, at (601) 607-3156 to schedule a consultation, or email us at rnoel@craigpanterlaw.com or assistant@craigpanterlaw.com .

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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The implied non-solicitation agreement by S. Craig Panter

Fri, 07 Sep 2018 19:02:00 GMT

Implied Non-Solicitation Agreements by S. Craig Panter

The implied non-solicitation agreement.

In a previous post , we looked at written non-compete agreements and here about non-solicitation agreements. Today, we examine the concept of the implied non-solicitation agreement.

How can the law “imply” the existence of an agreement?

Mississippi courts have repeatedly stated that they will not create a contract that the parties did not make themselves.

Yet, when parties do enter into a written contract, the courts may imply certain additional terms even though the parties did not write those terms into the contract. A good example of this is the implied covenant of good faith and fair dealing.

In Mississippi, almost all contracts are deemed to contain an implied covenant of good faith and fair dealing. See, e.g., Miranda v. Wesley Health System, LLC, 949 So.2d 63 (Miss. Ct. App., 2006).

Good faith means “the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party.” Ravenstein v. Community Trust Bank , 141 So.3d 396 (Miss. Ct. App. 2014).

Put another way, a party to a contract:

-must refrain from making it difficult for the other party to receive the benefits of the contract, and

-may have to take some affirmative steps to cooperate in achieving the goals of the contract.

Cenac v. Murry , 609 So.2d 1257 (Miss. 1992).

Does a contract for the sale of a business contain an implied non-solicitation provision?

Let me state at the outset that I am unaware of any Mississippi court case holding that a contract for the sale of a business contains such a provision. But, I contend such is true. Let me explain.

Assume Seller enters into an agreement with Buyer to sell an ongoing home maintenance business. The business has about 100 regular, recurring customers.

Now, if Buyer is paying attention, he will have Seller sign an agreement that prohibits Seller from opening a new, similar business and then going after those same customers.

But, what if Buyer fails to get such an agreement? Can Seller solicit those customers?

I say “no” because the benefits Buyer expected to get from the sale was the ongoing business from those customers. If Seller tries to solicit them, I contend Seller has breached the implied covenant of good faith and fair dealing. So, in that sense, I argue that the contract contained an implied non-solicitation provision.

I would also reach the same conclusion if Seller had, for example, signed a two-year non-compete agreement. After the two years pass, Seller should be free to compete in the open marketplace. Seller should not, however, be allowed to go after the same customers whose business he sold to Buyer (and for which he was paid).

Of course, it is far better to have a written non-solicitation provision in the contract.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

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If I co-sign a loan for someone, what might happen?

Wed, 05 Sep 2018 19:26:00 GMT

Co-signing a loan

I see this question often. When you co-sign a loan, several problems can arise.

Of course, loans can be made for many reasons. For purposes of this post, however, let us use the example of a relative wanting to purchase a car and needing you to co-sign on the loan.

Why does the bank want a co-signer?

The answer to this is fairly simple. When someone goes to borrow money but does not have good credit, the bank will be reluctant to make a loan.

In that instance, the bank will want a second person who has better credit to co-sign the loan. This gives the bank greater assurance that the loan will be repaid.

What is the effect of becoming a co-signer?

In most situations, the co-signer of a loan becomes obligated to repay the debt to the same extent as the initial borrower.

So, if you co-sign a loan for your relative to purchase a car, the bank will treat you exactly the same as your relative. From the bank’s point of view, both of you are equally responsible for the loan.

It does not matter to the bank that your relative got the car that was purchased with the loan. Your relative may be the sole owner of the car and on the title. Even so, you are equally responsible for repaying the loan.

If my relative does not pay on the loan, can I take possession of the car?

The answer to this is simply “no”. Your relative owns the car, subject to the bank’s lien against the car. The fact that you are a co-signer does not give you any right to possession of the car.

It is for these reasons that should be very careful when considering whether to co-sign a loan for somebody else. When you do, you essentially get all of the risk but none of the benefit of the loan being made.

You can also read here about signing a guaranty on a loan, which is very similar to being a co-signer.

If you need advice about co-signing a loan, call us at the Panter Law Firm.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

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Can my employer deny me overtime by putting me on a salary?

Wed, 29 Aug 2018 16:27:00 GMT

Salaries and Overtime

I see this question frequently. Let me start by saying that if the Fair Labor Standards Act (“FLSA”) requires that you be paid overtime, your employer cannot escape that obligation by simply paying you a salary. Many employers believe that, however, because the FLSA does exempt certain salaried employee from the overtime requirements.

When is overtime due?

The vast majority of jobs in the United States are non-exempt, meaning that the employer must pay overtime for hours worked in excess of 40 per week.

The law does, however, creates several exemptions. Those include bona fide executive, administrative, professional and outside sales employees. These are exempt employees, and they are not entitled to overtime pay.

What makes an employee exempt?

Speaking broadly, to become an exempt employee, the person must:

Being paid on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work.

It is not possible to set out every scenario that determines whether an employee is exempt or non-exempt. But, it is important to note that something more than just a salary is necessary to create exempt status.

If you have a question about overtime pay, please give us a call.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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Menace – – the (mostly) forgotten tort

Thu, 23 Aug 2018 21:34:00 GMT

The tort of menace

A person filing a lawsuit for menace must do so within one year. But, exactly what is “menace”?

Mississippi case law on this tort is sparse. Further, unlike most torts, there does not appear to be any definitive elements to the claim of menace.

Rather, the best we can do is look at the different scenarios in which courts addressed this tort.

Interference with contract

In Robinson v. Coastal Family Health Center, Inc. , 756 F.Supp. 958 (S.D. Miss. 1990), the plaintiff alleged that the defendant tortiously interfered with his employment contract.

Although Mississippi recognizes an independent claim for tortious interference with contract, the defendant argued that the claim against her should be viewed as a claim for menace.

Specifically, the defendant took the position that the term “menace” connotes an intention to inflict harm by means of some gesture or statement. (She did this because she wanted the court to apply the one year statute of limitation.)

The district court agreed that the claim against the defendant could be characterized as “actionable menace,” although the court did not specifically adopt the definition suggested by the defendant.

Stalking

In Lynch v. Liberty Mutual Insurance Company , 909 So.2d 1289 (Miss. Ct. App. 2005), Lynch was injured in an automobile accident. After she filed a claim, Liberty Mutual hired an investigator.

Lynch subsequently filed suit against Liberty Mutual and the investigator, claiming that the investigator was following her to such an extent that it amounted to stalking.

Although Lynch did not plead the tort of menace, the Supreme Court agreed with the lower court that Lynch’s claim was essentially one for menace and that the claim was barred by the one year statute of limitation.

Threats of criminal proceedings as “menace”

The Supreme Court provided the greatest guidance in Dennis v. Travelers Insurance Company , 234 So.2d 624 (Miss. 1970). In that case, the insurance company accused Pee Wee Dennis of intentionally damaging property insured by the company.

Travelers send a letter demanded a payment of approximately $200. The letter also contained a threat to pursue a criminal action if the money was not paid.

In response, Pee Wee filed suit and alleged a violation of Section 2365 of the Mississippi Code 1942, which provided:

Every person who shall knowingly send or deliver, or shall make, and, for the purpose of being sent or delivered, shall part with the possession of any letter or writing with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark, or other designation, threatening therein to accuse any person of a crime or to do any injury to the person or property of any one, with a view or intent to extort or gain money or property of any description belonging to another, shall be guilty of an attempt to rob, and shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five years.

(That statute can now be found at Miss. Code Ann. Section 97-3-81.)

The issue on appeal was whether the claim was barred by the one year statute of limitation. In holding that it was, the Supreme Court first looked to the Webster’s International Dictionary, which defined ‘menace’ as a show of intention to inflict harm: a threatening gesture, statement, or act; threatening import, character, or aspect.

Using that definition, the court held that Travelers’ letter “falls squarely within the purview of the statute under the category of ‘menace’ as set out in the statute.”

As stated, the case law is limited, but it does suggest that the tort of menace can arise in a variety of situations. This can be helpful for a plaintiff’s attorney when the facts do not fit squarely within the definition of more traditional torts. It may also help defense attorneys invoke the shorter, one year statute of limitation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Menace – – the (mostly) forgotten tort appeared first on Panter Law Firm, PLLC .

DUI and DUI-other

Sun, 12 Aug 2018 21:32:00 GMT

Traffic Stop

If you get pulled over by an officer of the law for any reason, and appear to be intoxicated, you will find yourself in a difficult position. You may think to yourself, “ I knew this would happen. I only had a couple drinks but I didn’t think I was unable to drive.”

Or maybe “I only had a couple puffs of that joint several hours ago. I never do that, anyway, but I’m fine now. It shouldn’t be a big deal.” You may actually say something like this to the officer, which would likely further the investigation.

From that point on, based on what you may have said, you may have narrowed your options. You may say to yourself, “an innocent person should tell the truth,” or “an innocent person doesn’t need to call their lawyer,” or “this officer will help me if I’m honest.”

From a legal perspective, any of this that may have been relayed to the officer will be used as evidence in court against you.

Take for example this hypothetical situation.

You smoked marijuana with some old friends. After waiting several hours, so as not to be under its influence when you drove home. You get pulled over for improper equipment because you didn’t know that your rear passenger brake light was out.

The officer pulls you over, asks for license and insurance. He checks it, then he asks if you know why you were pulled over. You say “no.” He tells you that your rear passenger brake light is out. You reply, “I’m sorry, officer, this is the first time that has come to my attention.”

Will he let you off with a warning, or write you a ticket for improper equipment? Surprise! “Sir, do I smell the odor of marijuana? Can you please step out of the vehicle?”

What do you do then? You may feel like you aren’t impaired, but the officer charges you with DUI-other because he smells marijuana. You can argue with him all day long, but when an officer alleges impairment when you are operating a vehicle, you will likely lose even the best argument you make while on the spot.

The caveat to keeping silent is that you can lose your license. This is Mississippi law, at least. If you refuse to blow (in regards to alcohol consumption), or otherwise refuse implied consent laws and the officer believes there to be overwhelming evidence that you are impaired, by automation of statutory law, the State will hold your license to drive for six months upon refusal of examination.

Before, or as soon as, this happens, make sure you have a lawyer who understands how to handle all types of situations involving DUIs.

If you need assistance, call us at 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com

Craig Painter

The post DUI and DUI-other appeared first on Panter Law Firm, PLLC .

Civil rights violations by employees of cities or counties.

Sun, 12 Aug 2018 21:20:00 GMT

Civil Rights

The United State Constitution and numerous federal laws provide citizens with certain guaranteed civil rights. When those rights are violated, the injured party may be able to bring a case under Section 1983 of the United State Code.

Section 1983 is a statute that, in and of itself, does not provide any particular rights. Instead, it is a vehicle for seeking damages for the violation of rights found elsewhere in the law.

In this post, we are going to look at the situation in which an employee of a city or county violates a person’s civil rights.

In that situation, the employee can usually be held personally responsible for that violation. (There are some exceptions, particularly when the employee is a judge, prosecutor or other judicial officer.)

But what about the city or county for which they work? Can they also be held liable for what they are employee did?

The Monell decision

In the landmark case of Monell v. New York City Dept. of Social Services , 436 U.S. 658 (1978), the United States Supreme Court looked at this very issue.

Under the law of most states (including Mississippi), if an employee of a private business causes injury to someone while engaged in their usual job responsibilities, the employer can also be held liable under the doctrine of respondeat superior . This simply means that the employer is legally responsible for what its employees do in the course and scope of their employment.

In Monell , the Supreme Court rejected the idea that respondeat superior could be used to make a city liable for a civil rights violation committed by one of its employees. The Court concluded that something more needed to be proved.

That something more was a policy or custom.

The Supreme Court concluded that in order to make a city liable for a constitutional deprivation carried out by one of its employees, that deprivation must have been the result of a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”

The Court also concluded that a well-established and regular custom would be sufficient, even if such a custom had not received formal approval through the body’s official decision making channels.

Thus, in Monell , the United States Supreme Court recognized two methods of establishing municipal liability – – official policy or unofficial custom.

(As we continue, please bear in mind that the rules applicable to cities in Section 1983 cases are equally applicable to counties. For simplicity, we will use the phrase “municipal liability” below.)

The final policymaker rule.

In most local governments, official policies are adopted by a board or council at a regularly held meeting. The courts have recognized, however, that others in local government can also make official policies.

For example, in Mississippi, a sheriff is the county’s chief law enforcement office. The sheriff can often set an official policy with respect to law enforcement without having to obtain approval of the County Board of Supervisors.

So, for example, a decision by the sheriff as to how to run the county jail can become a final policy of the county, even though the board of supervisors did not vote on it.

The courts have recognized, then, that “an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government’s business.”

The ratification theory.

The most recent of the four methods of establishing municipal liability under Section 1983 is the ratification theory.

This theory was developed by the United States Supreme Court in City of St. Louis v. Praprotnik , 485 U.S. 1127 (1988).

The Supreme Court begin its opinion in Praprotnik thusly: “This case calls upon us to define the proper legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality itself to liability under 42 U.S.C. § 1983.”

Put another way, the Court was looking at constitutional violations caused by a lower-level employee when that violation did not arise out of:

-a formal policy,

-a custom, or

-a decision of a final policymaker.

The Court held that “when a subordinate’s decision is subject to review by the municipality’s authorized policymakers, they have retained the authority to measure the official’s conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final .

If you have been the victim of a civil rights violation by city or county employees, consider all four methods of holding the local government liable for that violation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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Can I sue for a HIPAA violation?

Fri, 10 Aug 2018 18:58:00 GMT

Medical Information

I have seen many questions about HIPAA privacy violations, usually involving someone disclosing a person’s medications or medical records.

The questions almost always ask “can I sue?” The answer is “maybe”.

No private cause of action under HIPAA.

HIPAA is federal law that imposes very strict requirements on doctors, hospitals, and others who come into possession of your confidential medical information. Violators can receive substantial fines from the government.

But, there is no private cause of action under HIPAA. That means that if a hospital wrongfully discloses your medical records in violation of HIPAA, you cannot file a “HIPAA suit” to recover damages for that violation.

On January 23, 2025, the Mississippi Supreme Court again ruled that there is no private cause of action for a HIPAA violation. See Greenwood-Leflore Hospital v. Bodkin. For that reason, a HIPAA violation cannot be the subject of a lawsuit under 42 U.S.C. Section 1983.

There may be another way, however.

Even though HIPAA does not provide a private remedy, Mississippi law may. Specifically, Mississippi law provides a remedy for certain types of invasion of privacy. We previously wrote about them here .

The claim that may provide a remedy for wrongful disclosure of medical information is “public disclosure of private facts.”

In Mississippi, a person can bring an invasion of privacy claim when:

-Somebody gives publicity to some aspect of that person’s private life,

-A reasonable person would find the publication to be highly offensive, and

-The matter is not of legitimate concern to the public.

As you can tell, each case would have to be decided on its specific facts. For example, how much publicity did the matter get? Was it disclosed to a large number of people or just one person?

How offensive was the publicity? A disclosure that a person takes medication for high blood pressure is probably not offensive. On the other hand, disclosures of certain medical procedures might be highly offensive.

For more on a “public disclosure of private facts” claim, read here .

So, just because HIPAA will not provide a remedy, do not give up. Consider whether an invasion of privacy claim is available.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Can I sue for a HIPAA violation? appeared first on Panter Law Firm, PLLC .

Civil forfeiture – when the government takes your property

Thu, 09 Aug 2018 21:51:00 GMT

Civil Forfeiture

The government may take your property if it is believed to have been used as part of a crime. This means that the property may not just be held for evidence, but may actually be possessed or sold by the law enforcement authority or authorities who made the arrest.

This is called civil asset forfeiture, and it can happen before you are even indicted or convicted of the underlying crime you have been accused of.

For example, if you were charged in Mississippi with a drug trafficking charge on the road, even though the amount of drugs may be small, your vehicle could taken and sold by the arresting authority. The same goes for other personal property, and even real estate.

Protect your interests

Civil asset forfeiture has a specific procedure to be followed; it is critical that the authorities give notice. This is not something that can wait. Once a notice of forfeiture has been sent to you, you must respond quickly. Having an attorney to handle this matter for you can make all the difference.

If you receive a notice of forfeiture, call us at 60-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Civil forfeiture – when the government takes your property appeared first on Panter Law Firm, PLLC .

Wrongful termination in Mississippi

Tue, 31 Jul 2018 17:09:00 GMT

Wrongful Termination

Very often, when someone is fired from their job, they believe it was “wrongful”. It is important to keep in mind that the term “wrongful” has a specific legal meaning that differs from the everyday use of the word.

In the dictionary, “wrongful” mean something that was unfair or unjust. Quite often, when someone is fired, it really was for an unfair or unjust reason.

But, in order to have a legal claim for wrongful termination, the law requires something more. It requires that the firing be “wrongful” in the eyes of the law.

At-will employment and exceptions to it.

As we previously wrote here , Mississippi is an at-will employment state. That means that unless the employee has a contract with a specific length of employment that is guaranteed, the employee can be fired for “a good reason, a bad reason, or no reason at all.”

Think about that for a moment. If you do not have a contract, you can be fired for a bad reason. That would be unjust or unfair, but it would not be “wrongful” in the eyes of the law.

All is not lost, however.

In our prior post we discussed exceptions to Mississippi’s at-will employment rule.

We also discussed a number of federal civil rights laws that prohibit termination based upon certain characteristics of the employee, such as race, sex, religion, and a number of other factors.

So, if an employee is terminated because of their religion, for example, the employer cannot hide behind the “bad reason” rule to justify the firing.

If you believe you have been wrongfully terminated in the eyes of the law, give us a call and let us assist you.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Wrongful termination in Mississippi appeared first on Panter Law Firm, PLLC .

Right to a speedy trial – by Richard Noel

Mon, 30 Jul 2018 16:28:00 GMT

Right to a speedy trial

An important feature of American law is the social contract between the citizen and the state. This contract was initially framed by the founding fathers as the United States Constitution. You may be familiar with the Bill of Rights, in particular the term “due process,” wherein an individual has the right to maintain their life, liberty, and property, given the due process of law.

Often times when a person is arrested, their bail may be set high, and they may not be able to afford the set bond that allows them to prepare their defense outside of the jailhouse. How long will they sit in jail until they can exercise their right to a trial by jury?

The Sixth Amendment to the United States Constitution grants a right, inter alia , to a speedy trial. The application of this law has been interpreted by the United States Supreme Court since its inception in 1791.

This statute places a burden upon the State of Mississippi to swiftly try a case against the accused. There are many factors, so a private consultation may help you understand the position you or a loved one are in. If you know someone who has been denied bond, or whose bond is too high; please contact us.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Right to a speedy trial – by Richard Noel appeared first on Panter Law Firm, PLLC .

New ethics opinion on “ghostwriting”

Mon, 30 Jul 2018 16:20:00 GMT

Ghostwriting for Pro Se Parties

We previously wrote here about ghostwriting for pro se parties in a lawsuit. Pro se parties are people representing themselves in court without a lawyer.

The term ghostwriting refers to a situation where a lawyer drafts a legal document for the pro se party to sign and file with the court. In this instance, the lawyer does not appear before the court or put his/her name on the document.

In Auto Parts Mfg. Mississippi Inc. v. King Const. of Houston, LLC , 2014 WL 1217766, at *7 (N.D. Miss. Mar. 24, 2014), the district court “cautions that an attorney who ghostwrites motion briefs and pleadings is acting unethically and is subject to sanctions.”

In our prior post, we suggested that ghostwriting was not only ethical, but actually encouraged. We now have an Ethics Opinion from the Mississippi Bar to give us guidance on this subject.

Ethic Opinion No. 261

On June 21, 2018, the Ethics Committee of the Mississippi Bar issued its Opinion No. 261. The Opinion was written in response to two questions:

Here is the Committee’s analysis:

(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?

Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services.

It is important for lawyers to remember two important aspects of this type of limited scope representation.

First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation.

Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.

(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer.

Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c). The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unaware of the limited representation provided.

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement.

If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.

There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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Interest on motor vehicle loans in Mississippi

Fri, 20 Jul 2018 16:32:00 GMT

Car and Truck Loans

We previously wrote here about the legal rate of interest in Mississippi. Those rates apply to most loans.

There is, however, a separate statute that applies to car and truck loans. That is Miss. Code Ann. Section 63-19-43.

The statute sets the maximum rate of interest (or finance charge) depending upon the age of the vehicle.

Rates and age of vehicle

The statutes sets the following maximum rates:

Class 1 . Any new motor vehicle manufactured in the same year or the year immediately prior to the year in which the sale is made — 18% per annum on the unpaid balance.

Class 2 . Any new motor vehicle not in Class 1, any used motor vehicle manufactured not more than two years prior to the year in which the sale is made, and any new commercial vehicle or used commercial vehicle manufactured not more than one year prior to the year in which the sale is made — 21% per annum on the unpaid balance.

Class 3 . Any used motor vehicle not in Class 2 and manufactured not more than four years prior to the year in which the sale is made and any used commercial vehicle not in Class 2 — 26.75% per annum on the unpaid balance.

Class 4 . Any used motor vehicle not in Class 2 or Class 3 and manufactured more than four years prior to the year in which the sale is made — 28.75% per annum on the unpaid balance.

Be aware of your rights when financing a motor vehicle

P anter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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What is malicious prosecution in Mississippi?

Fri, 13 Jul 2018 19:31:00 GMT

Malicious Prosecution

You have been wrongfully sued in a civil lawsuit or wrongfully arrested on a criminal charge. Ultimately, you win your case. Do you have a claim for malicious prosecution against the person who sued you or who filed criminal charges and caused you to be arrested?

There are six elements of a malicious prosecution claim, and we will look at each of them.

1. The institution or continuation of a judicial proceeding.

This first element simply requires that a court case (civil or criminal) has been filed against you. This element includes the continuation of a court case that, in the beginning, may have been made in good faith but then certain facts make it improper to continue the case.

2. The institution or continuation must be at the insistence of the defendant.

When we use the term “defendant” here, we mean either (i) the person who filed a civil lawsuit against you (and who would have been the plaintiff in that lawsuit) or (ii) the person who filed criminal charges against you and caused the government to formally bring a criminal case against you.

3. The court proceeding must terminate in your favor.

This can occur in several ways.

You could go to trial and obtain a jury verdict in your favor.

A plaintiff in a civil lawsuit could simply drop the lawsuit and walk away.

The prosecution in a criminal matter could drop the charges.

However it may occur, you have to obtain a clear victory. If you gave anything in exchange for having the court case dropped (for example settling a civil matter or entering into a plea bargain in a criminal matter), then the case did not end in your favor.

4. The defendant must have instituted or continued the proceeding with malice.

The term “malice” as used here does not mean the same as when we use it in everyday language.

The lack of probable cause for having instituted the court case is evidence of malice. Filing a civil case, or bringing criminal charges, for an improper purpose can also constitute malice.

5. The defendant must have lacked probable cause to institute or continue the proceeding.

Probable cause can take several forms, but it essentially means the defendant had a reasonable basis for believing he had the right to bring the court case against you.

6. You must have suffered damages as the result.

The element is easily met. Having to go through a wrongful court action almost always causes a person damage.

It may be attorneys’ fees, cost of a bond, time in jail, or other losses.

If you believe you have a malicious prosecution claim, be aware that you only have one year after the “favorable termination” in which to file it.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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Premises liability – slip and fall cases

Mon, 09 Jul 2018 15:45:00 GMT

Injured on someone’s property

As attorneys at law, we try to bring balance to what seems like chaos, matching particular circumstances with evolving law.

Injuries are part of that chaos. They can disrupt and dismantle your entire life. If you are injured in an accident, your ability to heal yourself and get your life back on track, while minimizing your suffering, is vital to your well-being, those you are responsible for, and perhaps everyone around you. You may be able to recover monetary compensation, but every case is different.

Take for example premises liability. A term you may have heard before is “slip and fall.” If you were to fall and injure yourself on someone else’s property, you may be entitled to compensation, but it would depend on your legal status to determine if negligence exists. Negligence must be proved and the standard of duty is an essential element to that claim.

As an injured party in a premises liability case, the law attempts to designate your status as an invitee, a licensee, or a trespasser. An invitee (someone who is invited to come onto the property) is owed the highest standard of duty. A licensee (typically a friend or acquaintance who is welcome to be at your property) is owed a lesser standard of duty. A property owner owns a trespasser a lesser duty – – the duty to not intentionally injure the trespasser.

The most important thing to know is that an injured party must prove more than the simple fact that he was injured on someone else’s property. He must also show that the property owner violated one of the duties described above.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Premises liability – slip and fall cases appeared first on Panter Law Firm, PLLC .

Sovereign immunity in Mississippi – a Big Change in the Law.

Sun, 08 Jul 2018 21:57:00 GMT

Courthouse

For many years, a person injured by the negligence of a government employee in Mississippi simply had no remedy. The state and its political subdivisions (such as cities and counties) enjoyed “sovereign immunity.” That meant they were simply immune from a lawsuit.

Over time, the courts began creating some exceptions to this rule. Then, in 1984, the Mississippi Legislature decided to pass a series of laws that would explain when sovereign immunity was available and when it was not. Those laws are known as the Mississippi Tort Claims Act (the “MTCA”).

The MTCA creates a general rule that eliminates sovereign immunity for many types of negligence committed by government employees.

Yet, the Act also creates a list of exceptions to that rule. So, if the injury was caused by one of the exceptions, then sovereign immunity still applies.

This post addresses one of those exceptions, the discretionary function exception found at Miss. Code Ann. Section 11-46-9(1)(d). This statute creates an exception for negligence claims:

Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

Although this statute has not been changed since it was originally adopted, the manner in which the Mississippi Supreme Court has interpreted it has changed dramatically. And, the most recent change makes it far easier for an injured party to overcome sovereign immunity and obtain a remedy.

Three cases.

To understand the significance of the recent change, we will look at three Supreme Court decisions. Those are:

Jones v. Mississippi Department of Transportation , 744 So.2d 256 (Miss. 1999) (hereinafter “ Jones “)

Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014) (hereinafter “ Brantley “)

Wilcher v. Lincoln County Board of Supervisors, et al. , No. 2016-CA-01429-SCT (May 24, 2018) (hereinafter “ Wilcher “).

All three decisions address the meaning of the term “discretionary function” in Section 11-46-9(1)(d).

The Jones decision

Accidents caused by roadwork

We begin with the 1999 decision in Jones , which appears to be the first time the Mississippi Supreme Court was called upon to interpret the phrase “discretionary function.”

In that case, the plaintiff was injured in a one-vehicle accident when she approached a T-intersection at which the stop sign had been removed while MDOT did roadwork. MDOT claimed that it was immune from suit because the decision of the placement of road signs was a “discretionary function.”

In seeking guidance on how to define “discretionary function,” the Supreme Court looked to federal case law interpreting the same phrase in the Federal Tort Claims Act. Jones at 260.

The decision was made to adopt the two-part test set forth in United States v. Gaubert , 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). That test was:

First, determine whether the activity at issue involved an element of choice or judgment.

Second, if so, then determine whether the choice involved social, economic or political policy.

Jones at 260.

The Jones court explained further that:

“In determining the scope of the acts protected under the exception, the [United States] Supreme Court held that only those functions which by nature or policy decisions, whether made at the operational or planning level, are protected.”

“The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”

Jones at 260.

Thus, in Jones , the focus was upon the actual activity giving rise to the plaintiff’s claim.

The Brantley decision

Let us move forward to the year 2014, when the Mississippi Supreme Court handed down its decision in Brantley .

In that case, the plaintiff claimed that a member of the municipality’s fire department negligently dropped him while he was on a stretcher going into the hospital.

The municipality first argued for the “fire protection” exception in Section 11-46-9. The Supreme Court rejected that argument.

Next, the Supreme Court undertook an analysis of the “discretionary function” exception. In doing so, the Court provided an extensive analysis of prior case law on that subject.

The Brantley court began by examining the 1999 decision in Jones . The court concluded that Jones had been wrongly decided because, it said, the interpretation of “discretionary function” should not have been based upon the United States Supreme Court’s decision in Gaudert . Brantley at 1112.

As a result, the Brantley court abolished the two-part public-function test that had been adopted in Jones . Brantley at 1112.

Next, the Brantley Court reviewed several of its recent decisions and concluded that the Supreme Court had, in fact, already begun moving away from the two-part test in Jones even though such had not been formally stated.

Specifically, Brantley court noted that its recent decisions had not focused upon the activity giving rise to the claim, but instead had looked to the “broad governmental function implicated by the suit.” Brantley at 1113.

Put another way, the Supreme Court had started looking at the question of whether the overall operation was discretionary and, if it was, then holding that all activities conducted as a part of that operation were also discretionary.

As one example of this, the Brantley court discussed (with approval) its recent opinion in Pratt v. Gulfport–Biloxi Regional Airport Authority , 97 So.3d 68 (Miss. 2012). In Pratt , the plaintiff was injured when he fell down a temporary set of stairs at the airport. He contended that the stairs had not been maintained in a sufficiently safe manner.

In rejecting the plaintiff’s claims, the Pratt court chose not to look at the activity giving rise to the injury ( i.e., the maintenance of the steps) but instead at the overall operation of an airport. Pratt at 72.

Because the municipality was not required by law to build or operate an airport, the Pratt court held that such was a discretionary function. Then, the court held that all other activities associated with the operation of the airport (including maintenance of the stairs) were also discretionary functions. The only exception to that would be if some other rule or regulation made that particular activity ministerial. Pratt at 72.

In the Brantley decision, the court also discussed (with approval) City of Jackson v. Doe . In that case:

“[T]his Court held that a city was not liable for a dangerous condition in one of its parks because the “operation of a city park is a discretionary function of the city.” In so holding, the Court did not examine the specific conduct which had led to the injuries involved, i.e., maintaining the park in a reasonably safe condition.”

Instead, the Court stated that the “creation and operation of a city park is within the discretion of the municipality[,]” and thus immunity applied. Again, the Court did not focus on the specific activity in question, but rather on the overarching function of the operation of a public park.

Brantley at 1114.

What the Brantley court did, then, was formally announce a rule that the Supreme Court had already been using – – if the “broad governmental function implicated by the suit” was a discretionary one (such as operating an airport or a park), then all other activities carried out in furtherance of that function were also discretionary (unless another law made that activity ministerial, i.e. , mandatory).

Wilcher overrrules Brantley

On May 24, 2018, the Supreme Court issued its opinion in Wilcher . In that case, the plaintiff was driving at night and crashed into a large hole left in the road where the county and city had been repairing the bridge. There were no warning signs or other indications that the hole had been left in the road.

Both defendants argued for immunity under the “discretionary function” test announced in Brantley . Specifically, they argued that Miss. Code Ann. Section 63-3-305 gives local authorities discretion as to the placement of traffic-control devices. Thus, they reasoned, the particular act of failing to post a warning sign about the hole was also discretionary.

In rejecting the defendants’ argument, the Wilcher court began with an acknowledgment that the Brantley test was “well-intentioned” but “unworkable”. The Supreme Court concluded that the test:

“… forces parties and judges to wade through an ever-deepening quagmire of regulations and ordinances to locate “ministerial” or “discretionary” duties, over complicating the process of litigating and deciding claims involving governmental entities.”

As a result, the Supreme Court overruled Brantley and abandoned the “broad governmental function” test that had been used in Pratt and City of Jackson v. Doe (and that was formally adopted in Brantley ).

In its place, the Supreme Court reaffirmed the original two-part public-policy function test that had been adopted in 1999 in Jones . Wilcher at ¶ 23.

In returning to the original Jones test, the Wilcher court made it clear that the focus was no longer on the “broad governmental function implicated by the suit” but instead was on the activity giving rise to the plaintiff’s claim.

“ Brantley’s stated intention was to create a more ‘workable rule’ for when discretionary-function immunity applies. But in reality, the new test ‘marked an unwise and unworkable departure from long-standing precedent,’ and by failing to consider whether the activity in question involved policy , ignored the Legislative intent behind discretionary-function immunity.”

Wilcher at ¶ 14 (citations omitted; emphasis added).

Thus, rather than looking at the broad question of whether the city and County had discretion with regard to the placement of traffic-control devices, the Supreme Court looked specifically at the activity that gave rise to the claim – – leaving a large hole in the middle of the road with no warning signs.

“Both common sense and the common-law dictate that if a road crew removes a bridge to install a covert, leaves a giant hole overnight, and fails to either barricade or sufficiently warn about the gaping hole they created, then the entity in charge could be liable in tort if someone drives his car into the hole.” Wilcher at ¶ 16.

“This would certainly be true in the context of the premises-liability claim against a private property owner. So why should it be any different when the government owns or controls the premises?” Id .

“In other words, the government does not have the “discretion” – let alone legislatively conferred dscretion – to create a dangerous condition and leave it exposed without warning.” Id.

The discretionary function immunity protects only governmental actions and decisions “based on considerations of public policy.” Wilcher at ¶ 34. The alleged failure to barricade or warn about the hole “certainly was not the result of a policy decision. Rather, if indeed there was such a failure, it was the result of straight-up negligence.” Wilcher at ¶ 32.

Thus, when applying the discretionary function exception “this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. (emphasis in original). The focus must be upon “the nature of the actions taken and whether they are susceptible to policy analysis.” Id.

Because the plaintiff in Wilcher had alleged that his injuries were caused by a simple act of negligence and not a policy decision, “the County and City cannot take refuge in the discretionary-function immunity.” Wilcher at ¶ 34.

Wilcher creates a significant shift in the law of “discretionary function,” and any case decided prior to Wilcher must be carefully analyzed to determine if it is still good law.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Sovereign immunity in Mississippi – a Big Change in the Law. appeared first on Panter Law Firm, PLLC .

Non-compete and non-solicitation agreements

Fri, 06 Jul 2018 17:04:00 GMT

Non-Compete and Non-Solicitation Agreements

We previously wrote about non-compete agreements in Mississippi here . This post will address the distinctions between a non-compete agreement and a non-solicitation agreement.

Non-compete agreements.

As the name suggests, these contracts are often used by employers to prevent an employee leaving and going into competition against the employer.

As our prior post discusses, such agreements are generally disfavored in Mississippi. The courts will, however, uphold the contract if (i) it is reasonable in scope and duration and (ii) the employer can prove an economic need for enforcing the agreement.

A non-compete agreement can take several forms. For example, it may prohibit all forms of competition by the former employee. It can also be more limited, restricting it to competition in certain categories of the employer’s business or in certain geographic areas.

Non-solicitation agreements.

These agreements generally take two forms. The first prohibits a former employee from soliciting customers of the employer.

Sometimes the contract only prohibits the former employee from soliciting customers of the employer but will otherwise allow the former employee to go into the marketplace and compete for new customers. But, sometimes it prevents the employee from competing for new customers as well.

A second, common form of a non-solicitation agreement is one that prohibits the former employee from soliciting other employees to come work with her. With this type of agreement, the employer is seeking to protect its employee-base.

Quite often, an agreement will contain both a non-compete agreement and non-solicitation agreement.

Before signing either of these agreements, look carefully at the language. Try to picture what would happen to you if you left the job. Could you get gainful employment elsewhere without violating your contract?

If you have a question about non-competes agreements or non-solicitation agreements, contact the Panter Law Firm at 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

The post Non-compete and non-solicitation agreements appeared first on Panter Law Firm, PLLC .

Do I have to comply with my subdivision’s protective covenants?

Sun, 25 Mar 2018 22:02:00 GMT

Subdivision

It has become increasingly commonplace for a subdivision to be subjected to a set of protective covenants (also referred to as restrictive covenants).

The usual process involves a developer of a subdivision recording a set of covenants in the land records at the very beginning of the development. Then, when lots or houses are sold, they automatically become subject to those covenants.

The purpose of these covenants is usually to protect the value of all of the homes in the subdivision. And, they are usually enforced by a Home Owners Association (“HOA”).

What is in the covenants?

Sometimes, the protective covenants are fairly simple and short. They might, for example, prohibit the parking of any disabled vehicle on the property, prohibit fences that extend beyond the front of the house, prohibit parking in the street, and similar matters.

Many times, however, protective covenants are very lengthy and detailed. Often they create an Architectural Control Committee whose job is to enforce the covenants.

These committees are often given broad powers as to how the homes are designed and maintained. Sometimes the committee will have power over the smallest detail, such as the type of paint to be used on a garage door or the shape of a mailbox.

In such subdivisions, a homeowner that undertakes renovations to the house without obtaining approval of the committee may be forced to change and redo those renovations.

So, it is important to know what the protective covenants are with respect to the subdivision in which you live.

Are there ways to get around the covenants?

Generally speaking, if the terms of the covenants are clear, a court will enforce them as written.

But, there are some situations in which a court will refuse to enforce a protective covenants against a homeowner.

Implied abandonment of the covenants

If an HOA has failed to enforce a particular covenant in the past, then when it tries to do so against a homeowner, that homeowner will have an argument that the HOA effectively abandoned the covenant, thus making it unenforceable.

For example, assume the protective covenants for a particular subdivision prohibit the installation of basketball goals on the property.

Further, assume that out of 70 houses in the subdivision, 10 of them have basketball goals installed.

After Homeowner A installs a basketball goal, she receives a letter from the HOA demanding that she take it down. In that situation, Homeowner A will have a good argument that the covenant was effectively abandoned by letting 10 other homeowners have basketball goals.

There is no one single test for determining whether a covenant has been abandoned. The court will look at all of the circumstances, including:

-The number of times the covenant has been violated in the past without the HOA taking any action; and

-How long the prior violations have existed.

Changed circumstances

Often, a court may refuse to enforce a covenant on the grounds circumstances have changed to the extent that the covenant no longer secures the intended benefits.

For example, assume that the northern portion of a subdivision fronts a roadway. So, the developer adds to the covenants a provision that the homeowners along the roadway must maintain a brick wall 8 feet high to reduce noise coming from the roadway.

Assume that 20 years later, government officials decide to relocate the road so that it no longer is adjacent to the subdivision and is no longer being used for vehicular traffic.

Finally, assume that a portion of the original brick wall has collapsed.

In that instance, if the HOA filed a lawsuit to require a homeowner to rebuild the wall, a court would be justified in refusing to do so because the covenant no longer provides the benefit it was originally intended to provide.

Failure to properly adopt the covenants

The examples given above are based on the assumption that the covenants are otherwise valid. If a HOA seeks to enforce a covenant against your property, you should always investigate to be sure the covenant was properly adopted.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Ad valorem tax exemptions in Mississippi by S. Craig Panter

Sat, 24 Mar 2018 21:19:00 GMT

Ad valorem taxes

An ad valorem tax (Latin for “according to value”) is a tax whose amount is based on the value of a transaction or of property. Perhaps the most common form of such a tax is the annual real estate tax collected by the county.

Business owners know, however, that an ad valorem tax is also assessed against the personal property of the business, including inventory and equipment.

To assist counties and municipalities in their effort to entice businesses to move to a particular county or city, the Mississippi Legislature has given them the ability to grant exemptions to certain ad valorem taxes.

Mississippi law creates a number of such exemptions. Today, we will look at the exemption applicable to the establishment or expansion of a business.

Discretionary exemptions

The beginning point is Section 27-31-101 of the Mississippi Code. It is there that counties and cities are authorized, in their discretion, to grant exemptions from certain ad valorem taxes.

There are two important take-aways from this statute. First, the decision as to whether to grant an exemption is discretionary with the county or city. They are not required to grant any exemptions.

Second, because the decision is discretionary, the conditions upon which an exemption can be obtained will vary from county to county or city to city.

How long can the exemption run?

The statute limits the exemption to a total of 10 years. If the county or city grants an exemption for less than 10 years, however, it has the right to extend the exemption, but only for a total of 10 years.

What new enterprises may apply for the exemption?

New Business

Section 27-31-101 lists the following new enterprises that may be granted an ad valorem tax exemption:

(a) Warehouse and/or distribution centers;

(b) Manufacturing, processors and refineries;

(d) Corporate regional and national headquarters meeting minimum criteria established by the Mississippi Development Authority;

(e) Movie industry studios meeting minimum criteria established by the Mississippi Development Authority;

(f) Air transportation and maintenance facilities meeting minimum criteria established by the Mississippi Development Authority;

(g) Recreational facilities that impact tourism meeting minimum criteria established by the Mississippi Development Authority;

(h) Data/information processing enterprises meeting minimum criteria established by the Mississippi Development Authority;

(i) Technology intensive enterprises or facilities meeting criteria established by the Mississippi Development Authority;

(j) Health care industry facilities as defined in Section 57-117-3; and

(k) Telecommunications enterprises meeting minimum criteria established by the Mississippi Development Authority.

Expansion of existing enterprises and replacement of equipment

Section 27-31-105 of the Mississippi Code also allows businesses that expand current facilities and/or replace equipment to apply for an exemption.

An example of one county’s approach

As noted above, because the ad valorem tax exemption is discretionary, it is understandable that the criteria and process for obtaining the exemption will not be the same from county to county or city to city.

As a result, let us look at one example – – the Madison County, Mississippi, Ad Valorem Tax Exemption Policy. The Policy is lengthy, but here are some of the high points:

The timeline for seeking the exemption is as follows:

The procedure is detailed, but it can result in a significant tax savings.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

The post Ad valorem tax exemptions in Mississippi by S. Craig Panter appeared first on Panter Law Firm, PLLC .

Mississippi’s New Home Warranty Act

Mon, 29 Jan 2018 17:29:00 GMT

New Home Warranty

For most people, the purchase of a home is the largest purchase they will ever make. Buying a home and then discovering defects can have serious ramifications.

So, what options are available to you?

The New Home Warranty Act

In Mississippi, the buyer of a home can pursue a builder under a number of legal theories. The one addressed in this article is the New Home Warranty Act.

As the name of the Act indicates, it only applies to new homes. When a builder sells a new home, the builder automatically gives the following warranties:

The Act excludes certain items, including detached garages, swimming pools, driveways, walkways, patios, retaining walls, fences, and landscaping. A more detailed list of the exclusions can be found at Miss. Code Ann. Section 83-58-5(2).

How can you enforce the warranties?

Before undertaking any repair (other than repairs that are necessary to minimize loss or damage), the homeowner must give the builder written notice within ninety (90) days of discovering the defect.

The notice should be sent by registered or certified mail. The notice must advise the builder of the defects, and it must give the builder a reasonable opportunity to repair the defects.

If the builder does not repair the defects within a reasonable time, then the homeowner may file a lawsuit to enforce the warranties.

Subsequent buyers of the home.

Although the Act only applies to new homes, once the warranties go into effect, they are automatically transferred to subsequent purchasers of the home.

So, for example, if Builder sells the new home to Smith, the warranties go into effect in favor of Smith. If Smith sells the home to Jones before the warranties expire, then Jones can enforce the warranties against Builder.

What damages can the homeowner recover?

Damages

With respect to defects, a homeowner may recover the reasonable cost of repair or replacement necessary to cure them.

In addition, if the builder violates the Act by failing to perform as required by the warranties, the homeowner also has a claim for actual damages, including attorney fees and court costs.

The Act is not an exclusive remedy.

As noted above, the New Home Warranty Act is one of several legal remedies available to a homeowner in Mississippi. By making these warranties available, the Act does not prevent a homeowner from pursuing other remedies, such as breach of contract, breach of the implied warranty of habitability, or fraud.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

The post Mississippi’s New Home Warranty Act appeared first on Panter Law Firm, PLLC .

Do I have a case? By S. Craig Panter

Mon, 01 Jan 2018 20:16:00 GMT

Do I have a case?

Many questions on legal advice sites begin with the words “do I have a case?”

Obviously, every situation is different, and it is not possible to provide a “one size fits all” answer to that question.

Even so, there are several factors to consider in making a decision as to whether to hire an attorney. Let us look at a few of those.

Legal wrongs versus social wrongs.

There is an old saying in the law practice that “there is no wrong without a remedy.” Unfortunately, that is not a true statement.

The dictionary definition of “wrong” is an “unjust, dishonest or immoral act.” The law provides remedies for some wrongs, but not all of them.

For example, in the employment context, Mississippi is an “at-will” state. This means an employee can be fired for a good reason, a bad reason or no reason at all. So ,an employer can fire you for being one minute late to work, for listening to music the employer does not like, for being friends with someone the employer does not like, and so on.

It certainly does not seem “fair” to be fired for any of those reasons. Such firings could be viewed as unjust or immoral. But, they are not contrary to the law, and there is no legal remedy.

Similarly, not all harassment in the workplace is a legal wrong. If it is being done on the basis of the employee’s race, gender, religion, or other protected traits, then federal law may very well provide a legal remedy.

On the other hand, if your boss is simply difficult, overbearing, or downright mean but is not treating you that way because of a protected trait, then you probably have no legal remedy.

Read here for more information on harassment in the workplace: https://www.craigpanterlaw.com/2016/11/29/what-does-harassment-in-the-workplace-really-mean/

When you speak to a lawyer, be prepared to discuss the specific facts of what happened and not what you simply feel or believe about the situation.

The job of a lawyer is to separate the facts that give rise to a legal remedy from the facts that are simply unfair or unjust.

The extent to which you have actual damages.

Sometimes, a person has been subjected to a legal wrong for which the law provides a remedy. At the same time, often the amount of damages that can be recovered is fairly small.

The amount of damages that you can recover for a legal wrong is important in two respects. First, you should consider whether it is worth your time and effort to pursue a claim.

Second, the amount of damages will have a significant impact on the question of whether a lawyer will take your case. Let me give some examples.

I recently saw a question posted on a legal website by a lady who had lost $20 in a transaction. She wanted to know what her remedies were.

Now, she may very well have suffered a legal wrong and been entitled to file suit and recover that $20. However, $20 could not possibly be worth her time and effort in pursuing a lawsuit.

Likewise, if she hired a lawyer and paid by the hour, she would pay many, many times more than $20, which does not make good sense. Further, no lawyer is going to take a $20 claim on a contingency fee basis, hoping to recover $20 and be paid 40% of that as a legal fee.

That is an extreme example, of course, but the same type of analysis applies to larger claims. I would not suggest for a moment that $1000 is not a lot of money. But, if a lawsuit is necessary to recover that amount, it is simply not economical for the client to pay a lawyer an hourly rate of, say, $250, to try to recover it.

Nor is it economical for the lawyer to take that case on a contingency fee basis, because the lawyer would clearly have more time in a lawsuit than $400 (which is 40% of $1000).

When you talk to a lawyer about your claim, be prepared to speak candidly about the cost of litigation and whether it makes economical sense for either you or the lawyer to pursue the claim.

The deep pocket issue.

Lawyers often use the phrase “deep pocket” to refer to a defendant that has the financial ability to pay a judgment.

Once again, the ability of a defendant to pay a judgment should figure in both your decision to hire a lawyer on an hourly rate basis and a lawyer’s decision whether to take a case on a contingency fee.

For example, assume you have a very good claim against the defendant for $10,000. A lawyer quotes you a fee of $3800 to handle the case. You should be very reluctant to hire a lawyer if you do not think the defendant could, in the long run, pay the judgment.

Likewise, suppose you ask a lawyer to handle that case on a 40% contingency fee. Remember, when a lawyer takes a case on a contingency fee, she only gets paid if and when she recovers money for you. In the light of this, if it does not appear that the defendant would be able to pay a $10,000 judgment, the lawyer will be very reluctant to take the case on a contingency fee.

Hopefully, this post will provide you with a little insight as to how lawyers make decisions as to whether to take a case and factors you should consider when speaking with a lawyer.

Talk about all of these matters candidly with a lawyer to find out whether you really do “have a case.”

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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Do I have to pay rent if the landlord won’t make repairs?

Tue, 21 Nov 2017 16:09:00 GMT

Landlord Tenant

Note: This article applies to rent paid on residential property such as apartments and homes. Different rules apply to commercial property.

Mississippi’s Residential Landlord and Tenant Act.

This Mississippi Residential Landlord and Tenant Act (the “Act”) can be found starting at Section 89-8-1 of the Mississippi Code. The Act covers many issues between a landlord and tenant, including whether a tenant can withhold rent until the landlord makes repairs is addressed by the Act.

The tenant cannot simply refuse to pay rent until a repair is made. Instead, in some circumstances, the tenant can have the repairs made and then reduce the rent payments by the cost of the repairs.

What type of repairs are covered?

Not every minor repair is covered by the Act. Instead, the right of a tenant to make repairs (and then withhold rent to recover the cost) is limited to these types of repairs:

What does the tenant have to do first?

The tenant must give the landlord written notice of the need for a repair. The landlord then has 30 days in which to make the repairs.

What happens if the landlord does not make the repair?

If the landlord does not make the repair within 30 days, the tenant can have the repair made. In that event, the tenant is entitled to be reimbursed by the landlord within 45 days.

If the landlord does not reimburse the tenant, then the tenant may deduct the cost of repairs from the rent.

Some limitations.

Before the tenant can be reimbursed, the tenant must be:

In addition, the charges for the repairs (i) must be reasonable and customary and (ii) may not exceed one months’ rent.

Finally, the tenant may exercise the right to make repairs and then offset the cost against rent only once every six months.

What if the necessary repairs costs more than $600?

In this situation, the tenant cannot take advantage of the right to make the repair and offset rent. But, if the landlord does not make the repair itself, it may very well be in breach of the lease, giving the tenant the right to terminate the lease.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Exceptions in Mississippi to at-will employment. By S. Craig Panter

Mon, 13 Nov 2017 22:24:00 GMT

At-will employment

In Mississippi, most employment relationships are “at-will”. This means an employee can quit, and an employer may fire, “for a good reason, a bad reason, or no reason at all.”

Historically, the courts have recognized two major exceptions to Mississippi’s at-will rule.

Federal anti-discrimination laws.

There are several federal laws that prohibit discrimination in the workplace. Those include:

There are several others. So, when the at-will rule says that an employer can fire an employee for a “bad reason,” it does not allow an employer to violate federal law.

The McArn exceptions.

Drawing its name from the case of McArn v. Allied Bruce-Terminix Co., Inc. , 626 So.2d 603 (Miss. 1993), the McArn exceptions state that the at-will rule does not apply to:

(1) an employee who was fired for refusing to participate in an illegal act, or

(2) an employee who is discharged for reporting illegal acts of his employer.

The Mississippi Supreme Court concluded that firing someone for either of those reasons was against public policy.

Note: A mere good-faith belief that employer activity is criminally illegal without showing the activity to be actually criminal in nature is insufficient to provide recourse to a discharged plaintiff under the McArn exception.

The “I’m an American” exception.

In 2008, the Mississippi Legislature passed the Employment Protection Act. The avowed purpose of the Act was to discourage illegal immigration.

Most of the provisions of the Act address the obligations of employers to avoid hiring persons who are undocumented immigrants.

One provision, however, states as follows:

It shall be a discriminatory practice for an employer to discharge an employee working in Mississippi who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Mississippi in a job category that requires equal skill, effort and responsibility, and which is performed under similar working conditions, as defined by 29 USC, Section 206(d) (1), as the job category held by the discharged employee.

The Act does not state what remedies a discharged employee would have for such a “discriminatory practice.” But, the statute certainly appears to create another exception to the at-will rule.

Update: Read here for an exception when an employee is fired for participating in jury duty: /2019/09/27/at-will-employment-jury-duty/

If you have been fired and want to determine if you have a claim, contact us at:

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Using Consumer Reports: What Employers Need to Know | Federal Trade Commission

Thu, 09 Nov 2017 16:40:00 GMT

Source: Using Consumer Reports: What Employers Need to Know | Federal Trade Commission

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If I pay the taxes, do I own the land? By S. Craig Panter

Sun, 05 Nov 2017 19:44:00 GMT

Property Taxes

As we all know, in Mississippi, a landowner must pay property taxes each year. Yet, there are times when someone else is paying the taxes instead of the owner.

For example, someone may pay the taxes to help out a family member. Or, someone who is renting the land may pay the taxes so that the land is not sold at a tax sale.

Many times I see this question: If I paid the taxes, do I now own the land?

The answer is simple – – no.

In Mississippi, paying the property taxes on someone else’s land does not affect ownership in any manner. You simply cannot obtain title to someone’s land by paying their taxes for them.

What about tax sales?

Tax sales are different. Here, we are talking about a situation in which the county sells off land for delinquent taxes.

In this situation, someone can pay the back taxes to the county and buy the property.

The owner (or someone else who has an interest in the land, such as a mortgage company) can redeem the land ( i.e. , return title to the original owner) within two years by paying back the buyer with interest.

If the land is not redeemed in two years, there is a statutory process the buyer can go through to confirm his title.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Do I have to pay my car note if the car does not run? By S. Craig Panter

Mon, 30 Oct 2017 15:59:00 GMT

I still owe on this thing!

Here is the situation. You recently bought a used car at a dealership. To finance the car, you signed papers taking out a loan with a lender.

Two weeks later, the car breaks down. After having it towed to a repair shop, you learn that the car has many defects and was previously involved in a serious accident. Now, the car is only worth a fraction of what you paid for it.

Do you have to keep paying on the car loan?

The FTC Holder Rule.

The Federal Trade Commission (“FTC”) adopted the Holder Rule in 1975. The purpose of the Rule is to protect a consumer in the type of situation described above.

The FTC Holder Rule applies when a seller of consumer goods ( i.e. , goods for personal, family or household use) is paid, in whole or part, by having the buyer sign a finance agreement. In that circumstance, the finance agreement must contain this statement:

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

What this means is that if the seller cheated you or otherwise sold you defective goods, you can use that as a defense to avoid paying the lender.

You may also be able to recover the money you have already paid on the loan.

The Rule applies to many types of goods.

In our example above, we used a defective car. The FTC Holder Rule, however, applies to a wide range of consumer goods, such as furniture, household appliances, and many others.

In addition, it applies to persons leasing out consumers goods as well as selling them.

Consult an attorney.

If you find yourself in a situation like the one described above, do not simply stop paying the lender. Instead, consult with a lawyer to be sure the FTC Holder Rule applies to your circumstances.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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What is Unjust Enrichment? By S. Craig Panter

Sun, 15 Oct 2017 20:53:00 GMT

Unjust Enrichment

Mississippi law recognizes a legal claim called “unjust enrichment.” The notion is that if Party B has unfairly benefited at the expense of Party A, then Party A can sue to recover that benefit.

The scope of an unjust enrichment claim can be very broad.

Such a claim will exist when the Defendant is in possession of money or property which in good conscience and justice he should not retain but should deliver to the Plaintiff. Cole v. Chevron USA, Inc., 554 F.Supp.2d 655, 672 (S.D. Miss. 2007) [applying Mississippi law].

As you can imagine, there are many different ways a person can come into possession of money or property which in fairness belongs to someone else.

Is unjust enrichment a tort or contract claim?

The term “unjust enrichment” is a modern-day term for the doctrine of “quasi-contracts.” Specifically, even when the parties do not have an actual contract between them, the law will imply a contract that the Defendant will pay to the Plaintiff what in equity and good conscience belongs to the Plaintiff. Magnolia Federal Savings and Loan Association v. Randal Craft Realty Co., Inc., 342 So.2d 1308, 1311 (Miss. 1977).

For this reason, a claim for unjust enrichment is not available when the parties already have a contract between them. Willis v. Rehab Solutions, PLLC, 82 So.3d 583, 588 (Miss. 2012).

The rationale for this is simple: If the parties took the time to agree to a formal contract, then the contract controls. The law will not “imply” additions terms into the contract.

Drafting tip.

If you are drafting a contract for a party who will provide goods or services to another, consider adding a phrase such as: “The terms of this contract do not preclude Party A from also receiving payment for any additional work (or goods) provided to Party B beyond that stated in this contract.”

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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The impact of Heck v. Humphrey on civil rights lawsuits by S. Craig Panter

Sun, 30 Jul 2017 17:59:00 GMT

Civil rights and Heck v. Humphrey

The most often used vehicle for bringing a civil rights lawsuit is Section 1983, Title 42, of the United States Code.

Section 1983 creates a cause of action for damages in favor of an individual who has been deprived of any rights, privileges, or immunities secured by the Constitution by someone acting under color of state law. Essentially, Section 1983 creates tort liability.

The special case of persons convicted of crimes.

Every citizen of the United States and every person within its jurisdiction may utilize Section 1983 to secure redress for Constitutional violations. Persons who have been convicted of crimes, however, must take into account the rule announced by the United States Supreme Court in Heck v. Humphrey .

In Heck , a prisoner filed suit under Section 1983 while his direct appeal from a conviction was pending. He sought damages on the claim that the defendants, acting under color of state law, had engaged in unlawful acts that had led to his arrest and conviction.

The Supreme Court held that a plaintiff could not challenge his conviction or confinement via a Section 1983 claim if the plaintiff’s success would imply the invalidity of his outstanding criminal judgment.

As a result, before the Section 1983 claim could be pursued, the plaintiff must first prove that the conviction or sentence has been reversed, expunged, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus .

On the other hand, when the plaintiff’s 1983 suit, if successful, would not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action may proceed.

Two examples .

To explain how the Heck doctrine works, assume a person is convicted of burglary and sentenced to prison. The person then files a Section 1983 suit contending that the arresting officer did not have probable cause to make the arrest.

A finding of probable cause would have been made during the course of the criminal proceeding. The Section 1983 claim, then, would necessarily imply the invalidity of the criminal conviction. Under Heck , the 1983 claim may not proceed until such time as the plaintiff has received a favorable termination of his criminal judgment.

Now, using the same hypothetical, assume the plaintiff files a 1983 suit claiming that the arresting officer used excessive force during the arrest. Here, the Section 1983 claim does not imply the invalidity of the conviction for burglary. The 1983 claim may proceed.

There are a multitude of cases interpreting and applying the Heck doctrine, but the foregoing analysis is a good beginning point.

Update:

Entering a pretrial diversion program does not terminate the criminal action in favor of the criminal defendant for purposes of Heck v. Humphrey . See Morris v. Mekdessie , United States Court of Appeals for the Fifth Circuit, April 26, 2019.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison MS, 39110.

601-607-3156

Craig Painter

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10 Tricks Employers Use To Cheat Workers Out Of Overtime – AOL Finance

Fri, 30 Jun 2017 15:43:00 GMT

Overtime Pay

Source: 10 Tricks Employers Use To Cheat Workers Out Of Overtime – AOL Finance

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Drafting contracts – – little words with big meanings.

Sat, 10 Jun 2017 19:42:00 GMT

Contract Drafting

This post examines a few contract phrases that lawyers may give little attention but that can have significant impact.

Other good and valuable consideration.

Every attorney has seen this phrase in either a contract, a release, or a deed.

It has become commonplace for a legal instrument to recite that Party A is executing the instrument for a specific sum of money “and other good and valuable consideration.”

But, can the inclusion of such language create exposure for Party B? Can Party B be made to give Party A something in addition to the specified sum of money?

That issue was addressed in Haden v. Sims , 150 So. 210, 168 Miss. 64 (Miss. 1933). In that case, the deed recited payment of “one dollar and other considerations.”

The Supreme Court held that parol evidence was admissible to prove what the “other considerations” in the deed were. The Court held that parol evidence supporting a finding that $1000 was owed.

Remember, a cardinal rule of contract construction is that the Court will endeavor to give effect to all provisions of the contract.

So, if you draft the instrument to recite the full amount of the consideration, stop drafting. Leave out the phrase “other good and valuable consideration.” Do not inject uncertainly.

On the other hand, if the instrument does not recite all of the consideration (something commonplace in deeds), be certain there is another document that reflects that additional consideration and reference that other document as well.

Drafting attorney’s fees provisions.

Contracts often contain a provision for a party to recover its attorney’s fees and expenses if it has to sue to enforce the contract. There are several words to focus upon in drafting such a provision.

In Americrete, Inc. v. West Ala. Lime Co., Inc. , 758 So.2d 415 (Miss. 2000), the instrument stated that “the prevailing party may recover attorney fees.”

The first item to focus upon is the word “prevailing”. Often, it is easy to determine who prevailed.

But, in commercial litigation in particular, sometimes each party wins a little and loses a little. In addition, a plaintiff might assert seven causes of action and only win on one of them. In those situations, who “prevailed”?

In drafting an attorney’s fees provision, depending upon the nature of the contract, consider defining the word “prevailing” in way that best benefits your client.

Similar, it is useful to address the question of whether actual attorney’s fees or reasonable attorney’s fees may be recovered. The two are not necessarily the same.

Forum selection clauses.

Contracts often contain a provision requiring any lawsuit between the parties be filed in a particular. Obviously, you want the venue to be one favorable to your client.

A common mistake, however, is to use a phrase such as “both parties consent to litigating any claims arising out of this contract in the Circuit Court of Madison County, Mississippi.”

The problem with this language is that it is merely permissive. The parties consent to litigating in that court, but they did not agree it was the only possible venue. The other side could file suit first in another venue.

If you want to tie the other side to your venue, make it the “ sole and exclusive venue .”

Such a phrase can also prevent a defendant from removing a case to federal court. See, e.g., Costas v. Deposit Guaranty National Bank , 138 Fed.Appx. 605 (5th Cir. 2005).

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Fundamental Principles of Contract Interpretation – Part 5

Sat, 03 Jun 2017 22:02:00 GMT

Contract Interpretation

This is the 5th article on the subject of fundamental principles of contract interpretation. You can read the first four articles here , here , here and here .

As we look at the following principles, please note that they are also used in the interpretation of statutes.

Ejusdem generis .

This is a Latin phrase meaning “of the same kind or species.” This principle of interpretation holds as follows.

When a list of specific things is followed by a more general word, the general word is held to refer to things of the same kind.

For example, in a statute listing “baseball, basketball, football, and any other games,” the phrase “any other games” would be limited to team sports (like soccer) and not include “games” like chess or video games. State v. Peters , 263 Wis.2d 475, 665 N.W.2d 171 (2003).

Expresio unius est exclusio alterius .

Another Latin phrase meaning “the expression of one thing is to exclude another.”

Using the example above, a listing of “ baseball, basketball, and American football” would imply the exclusion of soccer. The exclusion, though not express, is implied.

The last antecedent rule.

Bear with me here. This rule holds that modifying and qualifying phrases, where no contrary intention appears, refer solely to the last antecedent.

Put another way, courts presume that the drafter of a contract or statute placed modifying words next to the language they intend to modify.

For example, in the phrase “the commercial vehicular license shall not apply to boats, tractors, and trucks under three tons,” the qualifier “under three tons” applies only to trucks and not to boats or tractors.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

601-607-3156

www.craigpanterlaw.com

Craig Painter

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How do I change my Will in Mississippi?

Mon, 29 May 2017 20:04:00 GMT

Changing a Will

You have executed a Last Will and Testament. Now, you want to change to it. What are your options?

In Mississippi, there are several ways to change a Will. In this article, we will look at each of them.

Execute a new Will.

This is probably the most common method of changing a Will. You simply have a new Will prepared and executed.

The new Will supersedes the prior Will. It is, however, both advisable and commonplace to include a provision in the new Will with words to the effect “this Will revokes and supersedes all prior Wills previously executed by me.”

Use a Codicil.

A Codicil is an instrument that operates as an amendment to an existing Will. A Codicil must be executed with the same formalities as a Will.

Destroying the Will.

Destroying a Will

If you do not like the terms of your current Will, you may simply destroy it or mutilate it.

This is not the most advisable means, however, of changing a Will. Unless your legal heirs are aware that you have destroyed the Will, upon your death they may assume the Will has simply been misplaced.

In addition, the Mississippi Supreme Court is of claims that a testator destroyed his or her own Will.

Partial revocation by making written deletions on the face of the Will.

In Matter of Estate of Carpenter, the Mississippi Supreme Court held that a testator can partially revoke a Will by drawing lines through parts. This was so even though the testator did not have two witnesses attest to the changes.

It does not appear, however, that a testator can add language to the Will without having the changes made with the formalities required to create a Will in the first instance. See Matter of Palmer’s Will .

The doctrine of dependent relative revocation.

Finally, we look at this doctrine. The name is a mouthful, and it is better understood as “revocation under a mistake.”

It works this way. Assume a testator has a properly executed Will in which he leaves property to his son. Then, the testator executes a Codicil that leaves the same property to a third-party.

By executing the Codicil, the testator has successfully revoked the prior provision in the Will that left the property to his son.

But, after the testator dies, it is determined that the Codicil is invalid because the devise to the third-party cannot legally be carried out for some reason.

The doctrine holds that had the testator known the devise in the Codicil could not be carried out, he would not have executed the Codicil in the first place.

Thus, the devise of the property to the son in the original Will is revived.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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When is it okay for a lawyer to lie? (Hint: Not very often.)

Fri, 12 May 2017 21:27:00 GMT

When can a lawyer lie?

In a previous post , we looked at the sources of a lawyer’s ethical obligations. The two primary sources are:

In almost every instance in which a lawyer speaks or writes on behalf of a client, the lawyer must be truthful. Here are some examples:

Rule 4.1 of the Mississippi Rules of Professional Conduct.

This Rules states that in the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Rule 3.3. Candor toward the tribunal.

This Rule addresses the obligation of a lawyer when speaking to a judge or other legal tribunal. The Rules states:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Rule 3.4. Fairness to opposing party and counsel.

In addition, a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

All of this seems very clear – – lawyers are not supposed to lie in representing a client. But, there is an exception recognized by the Rules.

Lawyers do not have to tell the truth during negotiations.

The Comment to Rule 4.1 explains that in settlement negotiations, a lawyer may lie. For example, a defense lawyer can say “my maximum authority is $20,000” when, in fact the lawyer has more authority.

A plaintiff’s lawyer can say “my client will never take less than $40,000” when she knows for a fact that her client will take less.

The Comment to the Rule explains this by stating that in negotiations no one really believes the other side. So, these types of statements are not considered to be “statements of material fact.”

Similarly, in a transaction over a particular matter, the lawyer can make a statement about the value or price of something even though the lawyer knows it to be otherwise.

These exceptions are, of course, rare. In almost all other instances, lawyers must speak the truth.

S. Craig Panter

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156

Craig Painter

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Adverse Possession in Mississippi – by S. Craig Panter

Mon, 17 Apr 2017 17:49:00 GMT

Adverse Possession

The doctrine of “adverse possession” refers to the ability acquire legal ownership of land belonging to someone else by simply using that land for at least 10 years.

A person who seeks to acquire legal ownership by adverse possession must demonstrate all of the following.

Use of land belonging to another.

The most common use that will lead to a claim of adverse possession is actually living on the property.

Other uses include farming the land, cutting timber from the land, or making such other uses of the land as a landowner would normally do.

There must be a claim of ownership.

The initial element to be proved by clear and convincing evidence is a claim of ownership. A person cannot set out to adversely possess the property of another. The “claim of ownership” must exist at the beginning of the ten-year statutory period.

The use must be adverse to the interests of the true owner.

Before a person can acquire legal title to land by adverse possession, his use of the property must be adverse or hostile to the interests of the true owner.

If the landowner has permitted the person to use the land, then the use is not “adverse”.

(Read more about the effect of permissive use here .)

Adverse or hostile use can take many forms. In summary, the use of the property must be that which a true owner would make, disregarding the claims of others, asking permission from no one, and using the property under a claim of right.

Note: If you are one of several owners of the land, in most cases, you cannot adversely possess the land against your cotenants (although it is possible if you use of the land rises to the level of “ouster”. The term ouster means the wrongful dispossession or exclusion by one tenant in common of his cotenants from the common property of which they are entitled to possession.

Open, notorious and visible.

Open and notorious

In addition to being adverse, the use of the land must be open, notorious and visible. Adverse possession cannot occur if someone is secretly using the land.

So, for example, a person could not acquire ownership of a 200 acre tract of woods by going deep into the middle of it and building a small cabin.

Continuous and uninterrupted.

The use must also be continuous and uninterrupted for a period of 10 years. This does not mean, of course, that a person living on the land must never leave it.

But, the use must be unbroken by any significant period of time.

Exclusive use.

To acquire legal ownership of land by adverse possession, the party making use of it must do so to the exclusion of others. Joint use of property is insufficient to establish a claim of adverse possession.

Peaceful use.

Finally, the use of the land must be peaceful. Obviously, a person could not forcibly take over someone’s land and then acquire it by adverse possession.

The fence or driveway exception.

Fence and Driveway Exception

Pursuant to Section 15-1-13 of the Mississippi Code, there is an exception for fences or driveways built on somebody else’s property.

So, if a neighbor locates the fence or driveway on your property, you can avoid an adverse possession claim by filing a written notice with Chancery Clerk that the fence or driveway was built without your permission.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

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Federal Interpleader – Two Ways to Go – by S. Craig Panter

Sat, 01 Apr 2017 21:09:00 GMT

Competing Claims for Money

Party A is in possession of money. Parties B, C and D each contend that the money belongs to them. In this scenario, Party A is called the “stakeholder”.

Rather than forcing Party A to decide who gets the money, federal law will allow Party A to deposit the money with the federal court and require Parties B, C and D to interplead ( i.e. , assert their claims against the money).

Under federal law, there are two types of interpleader. One is based on statute, and the other arises under Rule 22 of the Federal Rules of Civil Procedure.

Let us look at each of those.

Rule 22 interpleader.

Let us continue with the example of Party A. Because Party A is exposed to a risk of double or multiple liability, Party A may file a lawsuit in federal court and name Parties B, C, and D as defendants.

Further, Party A may do so whether Party A (i) makes no claim to the money or (ii) contends that some or all of the money belongs to him.

To get into federal court, however, Party A must otherwise establish the basis for subject matter jurisdiction. The most common form of subject matter jurisdiction in an interpleader action would be diversity of citizenship.

This requires complete diversity of citizenship between the plaintiff, on the one hand, and the defendants, on the other hand. In addition the money or property at stake must exceed $75,000 in value.

Rule 22 also allows a defendant exposed to the risk of double or multiple liability to interplead by way of counterclaim or cross-claim.

Note that the procedure for actually depositing funds with the court are set forth in Rule 67.

Statutory interpleader.

Federal Code

Interpleader is also permitted by 28 U.S.C. Section 1335. Specifically, pursuant to Section 1335, a plaintiff may commence an interpleader action in federal district court if:

Compare this to Rule 22, which requires diversity of citizenship between the plaintiff, on the one hand, and the defendants, on the other hand, and an amount in controversy of more that $75,000.

Section 1335 interpleader, however, only requires diversity of citizenship between at least two of the claimants to the money or property. This is referred to as “minimal diversity.”

If there are 3 or more claimants, it is not necessary that there be complete diversity of citizenship between all of them. It is only necessary that at least two of them be of diverse citizenship.

Further, if the stakeholder is disinterested (that is, does not claim an interest in the money or property himself), his citizenship is irrelevant.

If the stakeholder is interested, however, the case law is not consistent as to whether his citizenship may be considered.

Venue in statutory interpleader actions.

An interpleader action under Section 1335 may be brought in the judicial district in which one or more of the claimants reside.

Money or property.

Note that interpleader actions are not limited to money. They can also include property.

Attorney’s Fees.

In the Fifth Circuit, the general rule is that the disinterested stakeholder is entitled to an award of attorney’s fees incurred in bringing the action.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

Craig Painter

The post Federal Interpleader – Two Ways to Go – by S. Craig Panter appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – – Effect of Acknowledgement or Promise to Pay.

Sun, 26 Mar 2017 17:41:00 GMT

Breach of Contract

This is the 7th in a series of articles about Mississippi statutes of limitation found in Title 15, Chapter 1, of the Mississippi Code. You can read the other articles here .

This article discusses how a statute of limitation on a breach of contract claim can be extended by either an acknowledgement of debt or a new promise to pay it.

Acknowledgement or promise.

As explained in earlier posts, Title 15, Chapter 1, of the Mississippi Code contains several statutes of limitation applicable to claims for breach of contract.

As to all of those statutes, Section 15-1-73 explains that a party who has breached the contract may, by his actions, extend the statute of limitation. To do so, these requirements must be met:

(i) The debt must be acknowledged or a new promise to pay it must be given,

(ii) The acknowledgement or promise must be in writing, and

(iii) The writing must be signed by the party chargeable with the debt.

Proving the second element – – the existence of a writing – – is straightforward. Let us look, then, at the first and third elements.

What is a sufficient acknowledgment or promise?

With respect to the first element, the acknowledgement or promise must “state when the balance was due, to whom the balance was due, and for what the balance was due.” Harrison Enterprises, Inc. v. Trilogy Communications, Inc. , 818 So.2d 1088, ¶ 13 (Miss. 2002).

Such specificity is not required, however, when “the debt is evidenced by a written instrument from which the amount due thereon can be ascertained by calculation, in which event the amount due need not be stated in the acknowledgment or new promise.” Taylor v. De Soto Lumber Co. , 137 Miss. 829, 102 So. 260, 261 (1924).

So, for example, the writing could acknowledge the obligation to pay a promissory note upon which no payments have been made. The parties and the court could then look to the promissory note to ascertain the amount due.

Further, “superficial uncertainties as to exact amounts due, resolvable by explanation, are not sufficient to impair identification of the indebtedness.” Dyer v. Lowe , 201 Miss. 516, 29 So.2d 324, 325 (1947).

In Harrison Enterprises, supra, the letter said:

WE REALIZE OUR ACCOUNT IS OVER DUE. IF YOU WILL GIVE U.S. UNTIL THE MIDDLE OF AUGUST WE WILL BE ABLE TO PAY OUR ACCOUNT IN FULL.

The Supreme Court held this letter was sufficiently definite and unequivocal to take the case out of the operation of the statute of limitation.

What is a sufficient signature?

When Section 15-1-73 was first enacted, the term “signature” was generally understood to mean something the person signed by hand.

In the current age of electronic transmissions, it seems almost certain that a Mississippi court would consider an electronic signature sufficient.

Indeed, as far back as 1892, the Mississippi Supreme Court explained that “exactly what constitutes a signing has never been reduced to a judicial formula” and a valid signing could be found “no matter how imperfect, or unfinished, or fantastical, or illegible, or even false the separate characters or symbols he used might be, when critically judged.” Sheehan v. Kearney , 82 Miss. 688, 21 So. 41, 42 (1896).

What is the scope of Section 15-1-73?

As noted at the beginning of this article, the statute only applies to claims for breach of contract.

In addition, the statute applies to the “provisions” of Title 15, Chapter 1 of the Mississippi Code. As a result, it could be argued that an acknowledgment or promise to pay would not extend other statutes of limitation, such as a claim breach of contract under the Uniform Commercial Code.

With respect to breach of contract claims not subject to Title 15, Chapter 1, it would be advisable to have a party sign an entirely new contract starting the statute of limitation running anew.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Source: Pepper & Odom Law Firm House Attempts to Undermine Victims Access to Courts – Pepper & Odom Law Firm

Craig Painter

The post Mississippi Statutes of Limitation – – Effect of Acknowledgement or Promise to Pay. appeared first on Panter Law Firm, PLLC .

Firm House Attempts to Undermine Victims Access to Courts

Tue, 07 Mar 2017 19:22:00 GMT

The House Judiciary Committee just passed a new bill what can only be defined as a direct attempt to stop Injury Victims form having their day in Court. The Bill, H.R. 985 is cleverly called the “Fairness in Class Action […]

The post Firm House Attempts to Undermine Victims Access to Courts appeared first on Panter Law Firm, PLLC .

Expert Reports in Federal Court

Sun, 05 Mar 2017 20:53:00 GMT

Expert Reports

When designating an expert witness in federal court in Mississippi, a lawyer must take into account the requirements of the Federal Rules of Civil Procedure, the Local Uniform Civil Rules for the Northern and Southern Districts of Mississippi, and the Federal Rules of Evidence.

Which witnesses must be disclosed as experts?

Rule 26, Fed.R.Civ.P., states that a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702 , 703 , or 705 .

Those three rules of evidence set forth the circumstances under which a person may offer expert testimony, as well as the scope of that testimony.

If the witness is expected to testify at trial and offer expert opinions, the witness must provide a written report containing the information stated below in this post.

A note about Rule 701 , F.R.E. This rule allows a lay witness to offer opinion testimony if that testimony is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

There is no hard and fast test to determine when the testimony of a witness moves out of the ambit of Rule 701 and into that of Rule 702.

For example, in Soden v. Freightliner Corp ., 714 F.2d 498 (5th Cir. 1983), the Fifth Circuit permitted a lay witness to offer his opinion that the design of a fuel system was unreasonably dangerous and was the producing cause of a fire.

It is not very difficult, however, to picture a different court drawing a different conclusion. When in doubt, designate the witness as both an expert and lay witness.

The expert must produce a written report.

Pursuant to Rule 26, Fed.R.Civ.P., unless otherwise stipulated or ordered by the court, the expert disclosure must be accompanied by a written report, and the report must be prepared and signed by the witness,

The requirement of a written report applies to (i) an expert retained or specially employed to provide expert testimony in the case and (ii) a party’s employee whose duties regularly involve giving expert testimony.

Pursuant to Local Rule 26, a written report is “prepared and signed” by the expert witness when the witness executes the report after review.

What must the written report contain?

Rule 26, Fed.R.Civ.P., requires all of the following in the report:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition;

(vi) a statement of the compensation to be paid for the study and testimony in the case.

W itnesses Who Do Not Provide a Written Report.

A witness can be an expert and, at the same time, not be either (i) an expert retained or specially employed to provide expert testimony in the case or (ii) a party’s employee whose duties regularly involve giving expert testimony. An example is a treating physician. Another would be a party’s employee whose duties do not regularly involve giving expert testimony.

If the witness is not required to prepare a report, the party designating the witness must nevertheless disclose in writing:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

Local Rule 26 echoes this by stating:

A party must designate physicians and other witnesses who are not retained or specially employed to provide expert testimony but are expected to be called to offer expert opinions at trial. No written report is required from such witnesses, but the party must disclose the subject matter on which the witness is expected to present evidence under FED.R.EVID. 702, 703 or 705, and a summary of the facts and opinions to which the witness is expected to testify.

Materials that need not be produced.

Fed.R.Civ.P. 26 places some material outside the scope of what must be produced.

Specifically, the following are protected from disclosure and discovery:

• Drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

• C ommunications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

Be careful and thorough. An incomplete disclosure and/or report can result in the exclusion of the witness.

Panter Law Firm, 7736 Old Canton Road, Suite B, Madison, MS 39110

www.craigpanterlaw.com

Craig Painter

The post Expert Reports in Federal Court appeared first on Panter Law Firm, PLLC .

How Personal Injury Attorneys Can Use a Checklist to Increase Efficiency

Sat, 04 Mar 2017 16:15:00 GMT

Source: Pepper & Odom Law Firm How Personal Injury Attorneys Can Use a Checklist to Increase Efficiency – Pepper & Odom Law Firm

The post How Personal Injury Attorneys Can Use a Checklist to Increase Efficiency appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – Part 6

Thu, 02 Mar 2017 17:44:00 GMT

The Discovery Rule

This is the 6th in a series of articles about Mississippi statutes of limitation found in Title 15, Chapter 1, of the Mississippi Code. You can read the other articles here .

This post explains the “discovery rule” and its implications in determining when a statute of limitation begins to run.

What is the discovery rule?

Generally speaking, the discovery rule means a statute of limitation does not begin to run until the injured party knows, or should have known, that he had a cause of action.

The discovery rule does not apply to all claims.

Mississippi law recognizes the discovery rule with respect to certain causes of action. But, there are many statutes of limitation that begin to run regardless of whether the plaintiff knew, or should have known, that the cause of action existed.

The discovery rule for latent injury or disease.

As discussed in an earlier post , Section 15-1-49 of the Mississippi Code is known as the general, or “catch-all”, statute of limitation. It applies to all Mississippi causes of action for which a different statute of limitation has not been established by the legislature.

If a claim is subject to Section 15-1-49, and if the claim involves “latent injury or disease,” then the cause of action does not accrue (and the statute of limitation does not begin running) “until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.”

There is no “bright-line” rule for determining whether an injury is “latent”. It has been said that an injury is latent if:

(i) the nature of the wrongdoing is secretive or inherently undiscoverable, or

(ii) it would be unrealistic to expect a layman to perceive the injury at the time of the wrongful act.

The discovery rule in medical malpractice cases.

Medical Malpractice

Section 15-1-36 establishes the statute of limitation for most medical malpractice claims.

The statute of limitation is two years from the date the malpractice was, or with reasonable diligence might have been, first known or discovered, but in no event more than seven years after the malpractice occurred.

There are two exceptions, however:

(a) In the event a foreign object introduced during a surgical or medical procedure has been left in a patient’s body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient’s body.

(b) In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.

Defamation and the discovery rule.

In defamation cases, the Mississippi Supreme Court generally follows the “single publication rule”. That rule states that a cause of action for defamation accrues as soon as the defamation is published.

But, there is an exception to the single publication rule. It applies when the publication was secretive or inherently undiscoverable so that the plaintiff did not know, or with reasonable diligence could not have discovered, that she had been defamed.

In that situation, the discovery rule tolls the statute of limitations until such time as the plaintiff knows or should have known of the defamatory statement.

Note : The cases applying to the discovery rule in defamation cases have involved libel, as opposed to slander. Logic would dictate that the discovery rule would apply equally to slander, but the author of this post has not found a Mississippi case holding so.

The related doctrine of fraudulent concealment.

Pursuant to Section 15-1-67, if a person liable on a personal action fraudulently conceals the cause of action from the plaintiff, the cause of action is deemed to have first accrued when the fraud is, or with reasonable diligence could have been, discovered.

The two-part test for proving fraudulent concealment is this:

(1) The defendant must have taken some affirmative act that prevented discovery of the claim, and

(2) The plaintiff must have acted with due diligence to discover the claim but was unable to do so.

In addition, Section 15-1-9 (action in equity to recover land) and Section 15-1-36 (medical malpractice) include their own fraudulent concealment provisions.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Craig Painter

The post Mississippi Statutes of Limitation – Part 6 appeared first on Panter Law Firm, PLLC .

How do I file a FMLA claim?

Sun, 26 Feb 2017 19:39:00 GMT

Source: Department of Justice elaws – employment laws assistance for workers and small businesses

The post How do I file a FMLA claim? appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – Part 5

Sat, 25 Feb 2017 21:13:00 GMT

Statutes of Limitation

This is the 5th in a series of posts about Mississippi Statutes of Limitation. To read the first 4, click here .

Lawsuits brought by or against the government.

On a civil claim belonging to the state of Mississippi or any of its subdivisions or municipalities, the statute of limitation never begins to run. So, one of these governmental entities can file a civil lawsuit against the defendant even though a private plaintiff would be barred by the statute of limitation.

Conversely, the statute of limitation does run in favor of the state, its subdivisions or municipalities. The statute begins to run when the plaintiff first had the right to demand payment.

Claims to collect on a promissory note.

A promissory note is a written promise by one party (called the “maker”) to pay a specified amount of money to another party (called the “payee”) on a certain date or upon demand. The type of promissory note at issue will determine which statute of limitation applies.

If the promissory note is “nonnegotiable”, then the payee must bring suit within six years after payment was due (or, if the payee has “accelerated” the note, then suit must be brought within 6 years after the date of acceleration.)

Nonnegotiable promissory notes can take several forms. Generally speaking, however, a promissory note is “negotiable” when the payee has the power to sell the note to another person, turning that person into a new payee who can then demand payment from the maker. So, a nonnegotiable promissory note is simply one that is not negotiable.

On the other hand, if the promissory note is negotiable, it will be subject to the Uniform Commercial Code (and not Title 15, Chapter 1, of the Mississippi Code. The U.C.C. states:

There are many factors to consider in determining which statute of limitation applies to a claim on a promissory note. If there is any doubt about the type of note involved, the best bet is to file suit within the shortest of the statutes of limitation.

The catch-all statute of limitation.

That brings us to Section 15-1-49 of the Mississippi Code. The statute is sometimes referred to as the “general” or “catch-all” statute of limitation.

It is called this because it applies to every claim under Mississippi law that does not otherwise have its own, separate statute of limitation.

So, for example, the three-year statute of limitation applies to a wide-range of (but not all) claims for simple negligence (such as a car wreck), breach of written contract, premises liability, products liability, and many others.

The statute begins to run whenever the plaintiff’s claim has “accrued” (meaning that the plaintiff has the right to file a lawsuit).

There is an exception, however. If the claim is otherwise subject to the three-year statute of limitation, and if it involves latent injury or disease, the statute does not begin to run until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Craig Painter

The post Mississippi Statutes of Limitation – Part 5 appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – Part 4

Fri, 10 Feb 2017 08:45:00 GMT

Statutes of Limitation

This is the fourth in a series of articles about Mississippi statutes of limitation. You can read the first three articles here , here and here .

Lawsuits seeking relief with respect to equitable trusts.

There are different types of trusts. The most common is a written trust agreement in which a party puts certain assets into a trust for the benefit of another.

Yet, even in the absence of a written agreement, the law can impose an equitable trust (also known as a constructive trust) on certain property.

An equitable trust arises by operation of law against someone who holds the legal right to property which, in equity, he should not hold. For example, if someone obtains the legal right to property by:

then the court can create a constructive trust and put the property in the possession of the party to whom it ought to belong.

A lawsuit to enforce an equitable, or constructive, trust must be brought within 10 years.

An exception exists for persons who are under the disability of infancy or unsound mind. In that case, in calculating the 10 years, the period of disability is not included. However, even in those instances, the statute can never run for more than 31 years.

The statute of limitation for lawsuits about construction deficiencies.

Construction Defects

In Mississippi, a “construction deficiency” can take the form of any of the following:

Any lawsuit to recover damages for injury to a person or property arising from a “construction deficiency” must be filed within six years after the earlier of:

(i) written acceptance of the work by the owner, or

(ii) actual occupancy of the improvement by the owner.

This six-year limitation does not apply if the injury to a person causes his or her death.

Also, the limitation does not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective condition causes injury.

Actions to collect on a judgment rendered by a court in Mississippi.

Any action to collect on, or otherwise enforce, a judgment rendered by a court in Mississippi must be taken within seven years after the judgment was rendered.

However, the judgment can be renewed prior to the running of the seven years by the filing of a simple notice of renewal with the clerk of court. The form of the notice can be found in Section 15-1-43 of Mississippi Code.

Actions founded on foreign judgments.

Enforcing Judgments

A “foreign judgment” is simply one entered by a court in a state other than Mississippi. To collect on or enforce a foreign judgment, action must be taken within seven years from the date the judgment was rendered.

There is an exception if the person against whom the foreign judgment was rendered was a Mississippi resident when the lawsuit against him was first filed. In that instance, the statute of limitation is only three years.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Source: An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”? – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

The post Mississippi Statutes of Limitation – Part 4 appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – Part 3

Wed, 08 Feb 2017 12:57:00 GMT

Statutes of Limitation

This is the third in a series of articles about Mississippi statutes of limitation. You can read the first article here and the second article here .

The statute of limitation for certain torts.

A “tort” is a civil wrong that entitles the injured person to money damages. There are many types of torts. Some are unintentional (such as driving in a negligent manner and causing an automobile accident).

Other torts are, however, intentional. In Mississippi, the statute of limitation on many intentional torts is one year. Specifically, the one-year statute applies to claims for the following:

Mississippi courts have also shown a willingness to make other intentional torts subject to the one-year statute even though they are not listed in the statute.

Action for medical malpractice.

Mississippi has a rather complex statute of limitation for medical malpractice.

Generally speaking, a lawsuit must be brought within two years from the date of the act of malpractice.

There are some exceptions, such as when the malpractice is fraudulently concealed from the patient. In that case, the statute begins to run from the date the patient discovered the fraud or, with reasonable diligence, should have discovered the fraud.

There is also an exception for certain minors without a parent or legal guardian.

If you think you may have a medical malpractice claim, consult with an attorney in that field. The attorney can help you navigate the complex statute of limitation.

Lawsuits to recover property sold, partited in kind, or sold for partition.

When several people own land and cannot agree on what to do with it, any one of them can seek partition in the courts.

The term “partition” refers to the court dividing the property in proportion to the percentage of ownership of the owners.

Partition can be done in one of two ways. First, the court can order that the land be divided into smaller parcels, with each owner getting a parcel.

Second, the court can order that the land be sold. In that instance, the proceeds from the sale will be divided among the owners.

There are also other instances in which a court may order property sold for one reason or the other.

If one of the owner wants to bring a suit to set aside a sale or partition, he must do so within two years after the buyer at a sale or the taker under the partition decree takes possession of the land.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com\

Craig Painter

The post Mississippi Statutes of Limitation – Part 3 appeared first on Panter Law Firm, PLLC .

An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”? – Mississippi Bar Newsstand – Powered by Lexology

Tue, 07 Feb 2017 16:22:00 GMT

The post An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”? – Mississippi Bar Newsstand – Powered by Lexology appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation – Part 2

Mon, 06 Feb 2017 09:28:00 GMT

Statutes of Limitation

This is the second in a series of articles on Mississippi statutes of limitation. You can read the first article here .

The statute of limitation in suits on open accounts.

The phrase “open account” describes a business relationship where Party A purchases something from Party B on an ongoing basis.

A record of these purchases is kept by Party B, and from time to time, Party A makes payments. The amount owed by Party A at any given time will usually fluctuate.

If Party A stops paying, Party B has three years in which to file suit. The three years begins to run from the time of each purchase.

Two exceptions to the statute.

Mississippi law creates two exceptions to the three-year statute of limitation on open accounts.

The first exception applies when the parties have a “mutual account.” A “mutual account” is between merchants or traders who are each buying from the other. In that situation, the statute begins to run from the date of the last transaction.

The second exception is for transactions covered by the Uniform Commercial Code. The Code applies to, among other things, sales of most goods.

This second exception is, therefore, very significant. Most open accounts involve the purchase of “goods” as defined in the Code.

Lawsuits on unwritten contracts.

A suit on an unwritten contract (whether express or implied) must be commenced within three years after the cause of action accrued ( i.e. , came into existence).

There is an exception to this requirement. A lawsuit based on an unwritten contract of employment must be filed within one year after the cause of action accrued.

Actions for penalty or forfeiture on a penal statute.

Some criminal statutes include provisions allowing the victim to recover money from the perpetrator. Any claim to recover money under the statute must be filed within one year after the criminal offense was committed.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com

Craig Painter

The post Mississippi Statutes of Limitation – Part 2 appeared first on Panter Law Firm, PLLC .

Mississippi Statutes of Limitation

Mon, 30 Jan 2017 10:30:00 GMT

Statutes of Limitation

This is the first in a series of articles on Mississippi statutes of limitation. These articles focus upon limitations in civil lawsuits. Click here to read the other articles in the series.

The beginning point is Title 15, Chapter 1 of the Mississippi Code.

Statutes of limitation applicable to civil lawsuits can be found scattered throughout the Mississippi Code. Yet, most of them are in Title 15, Chapter 1, of the Code. So, let us start by looking at some of those.

Actions to recover land.

You may have heard the phrase “adverse possession.” This refers to a person using someone else’s land in an open and adverse manner. If the landowner allows this to go on for too long, the other person will acquire title by adverse possession.

So, the landowner must bring a lawsuit within 10 if years from the time it starts. If the landowner does not, then the statute will bar him from doing so later.

Lawsuits to challenge a tax sale.

If your land is sold to someone at a tax sale, you generally have two years in which to pay the taxes and penalties and get the title to your land back.

In addition, if the tax sale is defective, you may be able to have the tax sale set aside for that reason.

But, assume the buyer or someone claiming through the buyer occupies the land for three years after the initial two years. In that event, you cannot bring suit to set aside a defective tax sale.

Statute of limitation on actions by lenders for a deficiency judgment.

Deficiency lawsuits

As we discussed in an previous article , after a bank forecloses on property, it may file a lawsuit against the borrower for more money.

The bank’s claim is called a lawsuit for a deficiency judgment. The bank is saying that the price it got at foreclosure was not enough to fully repay the loan.

In Mississippi, the deadline for filing a deficiency judgment lawsuit is very short. The lender only has one year in which to bring that lawsuit against the borrower.

Lawsuits against an executor or administrator of an estate.

Certain creditors of a deceased person are allowed to file a lawsuit against the executor or administrator of that person’s estate.

The law requires that the suit be brought within four years after the qualification of such executor or administrator.

But, another statute states that no such lawsuit can be filed until 90 days after the executor or administrator qualified. So, the four-year statute begins to run at the end of the 90 day moratorium.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com

Craig Painter

The post Mississippi Statutes of Limitation appeared first on Panter Law Firm, PLLC .

Fundamental Principles of Contract Interpretation – Part 4

Mon, 30 Jan 2017 08:12:00 GMT

Contract Interpretation

This is the fourth article on Fundamental Principles of Contract Interpretation. Read the first three here , here , and here . (Related article “Do I need a Written Contract?”)

Time to call in the factfinder.

In our previous articles, we discussed the role of the judge in contract interpretation. That role can be summarized as follows:

What can the factfinder consider?

When the contract is ambiguous and the rules of interpretation do not resolve the ambiguity, then the factfinder may consider “extrinsic evidence.”

The term “extrinsic evidence” simply means evidence that is outside the “four corners” of the agreement. This evidence is also called “parol evidence.” (The word “parol” should be distinguished from the criminal term “parole”.)

Extrinsic evidence can take many forms. Some examples include:

Extrinsic evidence is used to explain ambiguities in a contract, not to contradict or vary its terms.

Trust an attorney to draft your contract.

As this article demonstrates, when a dispute arises regarding a properly drafted contract, a judge can usually resolve the dispute early on.

With a poorly drafted agreement, however, you run the risk of having to take a lawsuit all the way through a jury trial to have the dispute resolved.

If you need an agreement drafted or reviewed, contact the Panter Firm at 601-607-3156 for a consultation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com.

Craig Painter

The post Fundamental Principles of Contract Interpretation – Part 4 appeared first on Panter Law Firm, PLLC .

Fundamental principles of contract interpretation – part 3

Fri, 27 Jan 2017 06:38:00 GMT

Contract Interpretation

This is the third in a series of articles about contract interpretation. (Read part one here and part two here .)

In this article, we will examine three more rules of contract interpretation.

Construing several instruments together.

Often, parties to a transaction will sign several contracts at the same time. A loan closing is a good example of this.

At a loan closing, a buyer may sign a promissory note, a deed of trust, and other agreements with the lender.

If one of the documents lacks necessary information, the court can look at the other documents to find that information. In this type of situation, all of the documents are treated as if they were a single contract.

So, assume the deed of trust failed to include the amount of the loan, but the promissory note did. Here, the court will treat the deed of trust as if it had properly stated the amount.

Interpretation by implying terms of a contract.

Even when the parties did not include certain terms in the contract, the law will” imply” those terms. That means the law will treat the terms as if they had actually been written in the contract.

The most common implied term is called the covenant of good faith and fair dealing. In Mississippi, every contract is deemed to include this covenant.

Good faith is the faithfulness of an agreed purpose between two parties. It is a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.

The implied covenant of good faith and fair dealing, however, cannot be used to override a clear, express provision in the contract.

For example, assume the contract gives Party A the right to cancel for any reason and without advance notice to Party B.

Also assume Party B has spent a lot of money preparing goods for delivery to Party A. Thus, cancellation without advance notice costs Party B a lot of money.

It may not seem “fair” for Party A to cancel the contract in this manner. But, if Party B expressly agreed to the cancellation provision, he cannot sue Party A for breach of the implied covenant.

Courts will also imply into a contract the existing law at the time the parties entered into their agreement.

Prior performance by the parties helps resolve ambiguities.

When parties get into a lawsuit about the meaning of a contract, courts often look at how the parties were performing prior to the time their dispute arose.

Using an example from our first article , assume the contract requires Party A to make monthly payments of $1000 to Party B. The parties continue their business relationship for two years.

Then, a dispute arises as to whether payments must be made at the beginning of the month or at the end of the month. Party B insists that payments are due at the beginning of the month. Party A says they are due at the end of the month.

In this situation, the court will look at how payments were made during the first two years of the business relationship. If Party B accepted payments at the end of each month for two years, that is significant evidence that Party A is correct.

If you need a contract drafted or reviewed, contact the Panter Law Firm at 601-607-3156 for a consultation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

Craig Painter

The post Fundamental principles of contract interpretation – part 3 appeared first on Panter Law Firm, PLLC .

Insurance Bad Faith Overview :: Justia

Thu, 26 Jan 2017 15:12:00 GMT

Source (click here →) Insurance Bad Faith Overview :: Justia

If your insurance company has denied your claim, call the Panter Law Firm at 601-607-3156 for a consultation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS, 39110

Craig Painter

The post Insurance Bad Faith Overview :: Justia appeared first on Panter Law Firm, PLLC .

Fundamental principles of contract interpretation – part 2

Wed, 25 Jan 2017 08:48:00 GMT

Contract Intepretation

This is the second in a series of articles about contract interpretation.

In part one of this series, we discussed the following:

In this article, we will examine three more rules of contract interpretation.

General versus specific words in the contract.

The law states that specific terms in a contract override inconsistent general language. This is the principle of “ejusdem generis.”

Returning to an example in our first article , assume Party A and Party B enter into a contract. The contract states in many places that Party B will make deliveries of goods on the fifth day of each month. But, due to a drafting error, in one place the contract says deliveries will be made “on a regular basis.”

The numerous specific provisions calling for delivery on the fifth of the month will control over the one, general reference to “regular basis” deliveries.

Interpretation of the contract using common definitions.

If the parties disagree about the meaning of a particular word in the contract, the court will use the common, ordinary definition of the word.

But, there is an exception to this rule. When the parties use a word in a technical sense that is regularly used in their industry, the court will adopt the technical meaning.

For example, the word “ram” has many meanings, including:

If the term “ram” appeared in a contract between two computer companies, the court certainly would not think the parties meant a male sheep.

Writing controls over typed words.

Often times, parties will sit down with a typed contract. Then, they will negotiate certain changes. Rather than have the contract re-typed, they will simply write in their changes.

If there is a conflict between typed portions of the contract and the handwritten portions, the latter will control. This is because the handwriting shows that the parties specifically thought about and discussed the handwritten language.

If you need a contract drafted or reviewed, contact the Panter Law Firm at 601-607-3156 for a consultation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

Source: EEOC’s Five Core Principles for Preventing and Addressing Harassment – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

The post Fundamental principles of contract interpretation – part 2 appeared first on Panter Law Firm, PLLC .

EEOC’s Five Core Principles for Preventing and Addressing Harassment

Tue, 24 Jan 2017 14:03:00 GMT

By: Verrill Dana LLP

The post EEOC’s Five Core Principles for Preventing and Addressing Harassment appeared first on Panter Law Firm, PLLC .

Fundamental principles of contract interpretation.

Mon, 23 Jan 2017 07:48:00 GMT

Contract Interpretation

This is the first in a series of articles about principles of contract interpretation. Read part 2 here and part 3 here .

Every day, a party to a lawsuit in Mississippi calls upon the court to make a ruling as to the meaning of a a contract. The goal of the court is to determine and give effect to the intent of the parties.

To accomplish this, the law has created several rules of interpretation (also referred to as rules of construction) to assist in determining what a contract actually means.

Start with the four corners.

The “four corners test” is the beginning point for interpreting a contract. The phrase “four corners” refers to the four corners of a piece of paper. It is a shorthand way of saying that the first thing the court will do is look only at the written contract.

If the contract is clear to the court, then (subject to a few exceptions we will discuss in a subsequent post), the court will enforce it as written. The courts are not concerned about whether somebody made a good bargain or a foolish bargain.

The question of whether a contract is clear (also called unambiguous) is a question of law for the court to decide. The fact that the parties to the contract disagree as to its meaning does not make a contract ambiguous.

But, if the court concludes that the contract is ambiguous, then there are certain rules of interpretation that must be used to determine the true intent of the parties.

Construing the contract against the party who wrote it.

Sometimes, the parties will disagree as to the meaning of a particular phrase or clause in the contract. It may very well be that each party’s interpretation is a reasonable one.

Just as an example, assume the contract states that Party A will make “monthly payments of $1000” to Party B. But, Party A says he meant at the end of each month, while Party B says he intended to be paid at the beginning of each month.

Both interpretations are reasonable. But, if Party A drafted the contract, the court will adopt Party B’s interpretation. The rationale is that Party A had the opportunity to make the contract very clear. Because Party A did not do so, the court will interpret the contract in favor of Party B.

Interpretation of the contract as a whole.

Another fundamental principle of contract interpretation is that the court will construe the contract as a whole. This means the court will consider all the provisions of the contract and not just any one specific provision to resolve an ambiguity.

Continuing with our example, assume the contract between Party A and Party B is 10 pages long. Many times in the contract, there is a reference to “monthly payments.” There are also many references to monthly deliveries of goods.

It seems perfectly clear to the court that Party B is going to make monthly deliveries, and Party A is going to make monthly payments.

But, for some reason (probably a simple drafting error), there is one reference to an “annual payment.” In this situation, the court has the power to recognize a simple drafting error and conclude that the intention of the parties was for monthly payments.

Construing a contract in a reasonable manner.

As noted above, if a court finds that the contract is unambiguous, then the court will enforce it as written. This is so even if the contract may be burdensome to a party.

But, if the court finds an ambiguity, the law states the court should reject an interpretation that would lead to an absurd or harsh result.

Returning once again to our example, if Party B argued that he was entitled to 12 monthly payments and an additional annual payment of $12,000, the court should reject such an unreasonable interpretation.

If you need a contract drafted or reviewed, contact the Panter Law Firm at 601-607-3156 for a consultation.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

Source: Family Businesses Should Carefully Consider Indemnification and Advancement Obligations Included In Limited Liability Company Operating Agreements – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

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Family Businesses – Indemnification and Advancement Obligations in the Operating Agreement

Fri, 20 Jan 2017 10:23:00 GMT

By Murtha Cullina LLP

The post Family Businesses – Indemnification and Advancement Obligations in the Operating Agreement appeared first on Panter Law Firm, PLLC .

Awarding attorney’s fees when punitive damages are appropriate

Wed, 18 Jan 2017 15:55:00 GMT

Attorney Fees and Punitive Damages

The punitive damage exception.

We previously wrote here about whether the other side in a lawsuit has to pay your attorney’s fees if you win.

As the previous post explained, Mississippi courts follow the “American rule.” The American rule states that in most cases a party must pay his own lawyer, even if he wins the lawsuit.

But, the rule contains three general exceptions. The party who wins can recover attorney’s fees if:

In this post, we will examine the third exception – – when punitive damages are appropriate.

When can a party get punitive damages?

For years, the ability of a party to recover punitive damages (also called “exemplary damages”) was governed by common law ( i.e. , the law established by court rulings).

In 1993, however, the Mississippi legislature adopted a law on punitive damages. The law explains the circumstances under which a punitive damage award is available. It also establishes limits on the amount that can be recovered.

Conduct that supports a punitive damage award.

In Mississippi, punitive damages may be awarded when the plaintiff proves that the defendant:

• acted with actual malice, or

• acted with gross negligence that evidences a willful, wanton or reckless disregard for the safety of others, or

• committed actual fraud.

The plaintiff must prove his claim by clear and convincing evidence.

The word “appropriate” is the key.

As stated, attorney’s fees may be awarded by the court if the defendant acted in such a way that a jury would have been justified in awarding punitive damages.

But, the jury does not have to actually award punitive damages before a plaintiff can receive attorney’s fees. As long as it would have been appropriate for the jury to award punitive damages (something decided by the court), then the court can award attorney’s fees.

“This is consistent with our findings that punitive damages are not a prerequisite for the award of attorney fees.” Allstate Ins. Co. v. McGory , 697 So. 2d 1171, 1179 (Miss. 1997).

Update: The Supreme Court has also stated that “if no punitive damages are awarded by the jury, then attorneys’ fees are clearly not to be awarded by the trial judge.” Mississippi Power Light Co. v. Cook , 832 So. 2d 474, 488 (Miss. 2002).

In doing so, the court did not purport to overrule the McGory case mentioned above.

We expect to examine this more closely in the future and attempt to reconcile the two rulings.

Keep in mind, though, that in either situation, the court is not required to award fees. Whether to do so remains in the discretion of the court.

If you have been intentionally wronged by another person or business, contact the Panter Law Firm for a consultation at 601-607-3156.

Craig Painter

The post Awarding attorney’s fees when punitive damages are appropriate appeared first on Panter Law Firm, PLLC .

Mississippi laws that award attorney fees.

Wed, 18 Jan 2017 09:22:00 GMT

Recovering Attorney’s Fees

We previously wrote here about whether the other side in a lawsuit has to pay your attorney fees if you win.

As the previous post explained, Mississippi courts follow the “American rule.” The American rule states that in most cases a party must pay his own lawyer, even if he wins the lawsuit.

But, the rule contains three general exceptions. The party who wins can recover attorney’s fees if:

In this post, we will examine the second exception – – when a Mississippi law requires the losing party to pay.

Here are some of the laws in Mississippi that award attorney’s fees.

• The Mississippi Litigation Accountability Act allows a defendant who has been sued on a frivolous lawsuit to have the lawsuit dismissed.

As a part of that, if the defendant succeeds, the court may award the defendant reasonable attorney’s fees and costs if:

– a claim or defense was asserted without substantial justification,

– a claim or defense was interposed for delay or harassment, or

– improper conduct was used unnecessarily expand the lawsuit.

Importantly, the award can be made against the parties who engages in the wrongful conduct as well as his attorney.

• Attorney’s fees “shall be” awarded to the prevailing party in a lawsuit pursuant to the Unsolicited Residential Telephonic Sales Call Act.

• In a shareholder derivative action, the court “may” award a prevailing plaintiff attorney’s fees if the lawsuit created a substantial benefit to the corporation. Conversely, if the court finds that the plaintiff brought suit without reasonable cause or for an improper purpose, the court may award attorney’s fees to the defendant.

• A court may award attorney’s fees to a plaintiff who prevails in a lawsuit against a health spa for misrepresentation.

• A plaintiff who sues a defendant on an open account and obtains a judgment for the amount demanded prior to lawsuit is also entitled to recover attorney’s fees.

• In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

• When any out-of-state principal fails to timely pay a Mississippi sales representative commissions as provided in Section 75-87-5, the principal shall be liable to the sales representative in a civil action for up to triple the commissions due to the sales representative, plus reasonable attorney’s fees and costs.

• Under the Mississippi Uniform Trade Secrets Acts, if (a) a claim of misappropriation is made in bad faith, (b) a motion to terminate an injunction is made or resisted in bad faith, or (c) willful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.

• If an employer violates the Mississippi Drug and Alcohol Testing of Employees Act, reasonable attorney;s fees may be awarded to the person if the court or arbitrator finds that an employer has knowingly or recklessly violated this chapter.

• Any licensee suffering pecuniary loss because of any willful failure by any other licensee to comply with any provision of the Mississippi Motor Vehicle Commission Law or with any rule or regulation promulgated by the commission under authority vested in it by said law may recover reasonable damages and attorney fees therefor in any court of competent jurisdiction.

• Fees may be awarded in any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein.

Mississippi has many other laws that provide for an award of attorney’s fees to the winning party. If you are considering filing a lawsuit but are concerned about the cost of doing so, contact the Panter Law Firm for a consultation to determine whether the law will allow you to recover legal fees from the other side. 601-607-3156.

Craig Painter

The post Mississippi laws that award attorney fees. appeared first on Panter Law Firm, PLLC .

Designation of Expert Witnesses in Mississippi

Tue, 17 Jan 2017 20:36:00 GMT

Expert Witness

In Mississippi state court, a party to a lawsuit may obtain facts known by, and opinions held by, an expert who will testify for the opposing party at trial.

1. If the expert was retained or specially employed to provide expert testimony, a party can find out the following information:

(i) the subject matter on which the expert is expected to testify;

(ii) the substance of the facts and opinions to which the expert is expected to testify;

(iii) a summary of the grounds for each opinion;

(iv) the facts or data considered by the witness in forming the opinions, regardless of when and how the facts or data were made known to the witness;

(v) any exhibits that will be used to summarize or support the opinions;

(vi) the witness’s qualifications, including a list of all publications authored by the witness in the previous ten years;

(vii) a list of cases in which, during the previous ten years, the witness testified as an expert at trial or by deposition; and,

(viii) for retained experts, a statement of the compensation to be paid for the study and testimony in the case.

2. If the expert was not retained or specially employed to provide expert testimony, a party can obtain:

(i) the subject matter on which the witness is expected to present expert testimony; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

The method for obtaining the information.

Rule 26 of the Mississippi Rules of Civil Procedure allows a party to obtain this information by using an interrogatory. An interrogatory is simply a written question.

The rule also allows a party to seek a court order to take the deposition of the expert under oath. If the court grants the motion, in most instances the party taking the deposition will pay the expert’s fee in giving the deposition.

It has become commonplace for lawyers to simply agree to a deposition of an expert, with the other side paying the expert’s fee.

Non-testifying expert witnesses.

A party may also discover facts known or opinions held by an expert hired by the other party but who will not testify at trial. But, to do so, the party seeking discovery must show “exceptional circumstances.” This means that it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

The impact of the Uniform Circuit Court and Chancery Court rules.

Rule 1.10 of the Uniform Chancery Court rules states that, absent special circumstances, a party must designate his expert witnesses at least sixty days before trial. Uniform Circuit Court Rule 4.03 (formerly Rule 4.04) says the same thing.

So, what happens if a party does not attempt to discover information about the other side’s expert under Rule 26? Does the other side still have to designate his experts pursuant to the Uniform rules?

The Mississippi Supreme Court addressed this very question in City of Jackson v. Perry , 764 So.2d 373 (Miss. 2000).

In that case, the defendants objected to the plaintiff’s expert witnesses testifying at trial. The defendants relied upon Uniform Circuit Court Rule 4.04 (now Rule 4.03) and argued that the plaintiff had failed to designate expert witnesses at least 60 days before trial.

The Supreme Court explained:

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Contracts that require the losing party to pay the winner’s attorney’s fees.

Mon, 16 Jan 2017 18:00:00 GMT

Contracts awarding legal fees

We previously wrote here about whether the other side in a lawsuit has to pay your attorney’s fees if you win.

As the previous post explained, Mississippi courts follow the “American rule.” The American rule states that in most cases a party must pay his own lawyer, even if he wins the lawsuit.

Exceptions to the American Rule.

The rule contains three general exceptions. Under Mississippi law, the party who wins can recover attorney’s fees if:

In this post, we will examine the first exception – – a contract that requires the losing party to pay the other party’s fees.

What does the contract have to say?

There is no “magic language” that has to appear in the contract. Instead, the provision simply must be clear and express the intent of the parties.

Nevertheless, there are some “key” words that you should look for in a contract that provides for an award of attorney’s fees.

“Prevailing party”

Often, a contract will state that the “prevailing party” is entitled to be paid his attorney’s fees by the loser.

But, it is not always clear who prevailed in a lawsuit. For example, assume a plaintiff sued a defendant on four separate claims in a single lawsuit. Then, assume the plaintiff only won one of those claims.

Is the plaintiff a “prevailing party”? In this type of situation, the court would have to look at the nature of the claims, the amounts involved, and other circumstances to determine the extent to which the plaintiff is entitled to attorney’s fees.

Another example. Assume a plaintiff files suit for $10,000, and the defendant filed a counterclaim for $5000. Then, the jury returned a verdict in favor of both of them, meaning that the plaintiff has a net verdict of $5000.

Arguably, both parties prevailed. The fact that the plaintiff had a larger claim should not lead to the conclusion that the plaintiff was the only prevailing party.

“Reasonable fees”

Usually, an attorney’s fee provision will call for the losing party to pay the other side’s “reasonable” attorney’s fees. Even in the absence of the word “reasonable” in the contract, the court is very unlikely to award unreasonable attorney’s fees.

To recover fees, the prevailing party must prove to the court that the fees are reasonable. This is almost always done by way of a post-trial motion.

In state court, the most common test for determining whether a fee is reasonable is to apply the guidelines in Rule 1.5 the Mississippi Rules of Professional Conduct.

Rule 1.5 lists the following criteria for determining whether a fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Seek legal advice.

Before you sign a contract that could obligate you to pay the other sides attorney’s fees in the event of a lawsuit, contact the Panter Law Firm for a consultation at 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Source: EEOC’s strategic enforcement plan adds priority regarding independent contractor relationships – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

The post Contracts that require the losing party to pay the winner’s attorney’s fees. appeared first on Panter Law Firm, PLLC .

Mississippi laws on stalking

Mon, 16 Jan 2017 16:54:00 GMT

Source: Stalking-Brochure_July2016.pdf

Mississippi Attorney General’s Office

Craig Painter

The post Mississippi laws on stalking appeared first on Panter Law Firm, PLLC .

EEOC’s strategic enforcement plan adds priority regarding independent contractor relationships

Fri, 13 Jan 2017 18:05:00 GMT

By: DeWitt Ross & Stevens SC

The post EEOC’s strategic enforcement plan adds priority regarding independent contractor relationships appeared first on Panter Law Firm, PLLC .

Offers of judgment – the illusion of leverage

Fri, 13 Jan 2017 07:17:00 GMT

Offers of Judgment

The Mississippi Rules of Civil Procedure permit a defendant to make an offer of judgment to the plaintiff prior to trial.

An offer of judgment is simply an agreement of the defendant to give the plaintiff a judgment in a certain amount.

How are offers of judgment made?

In Mississippi state courts, Rule 68 of the Mississippi Rules of Civil Procedure applies to these offers.

The procedure is simple and must be done at least 15 days prior to trial. The defendant sends the plaintiff a written offer. The offer says the defendant will allow a judgment to be taken for a certain amount.

The plaintiff has 10 days to send back a written notice accepting the offer. If the offer is accepted, the court is notified and enters a judgment.

If the plaintiff does not accept the offer within 10 days, it is deemed withdrawn. In addition, the plaintiff cannot introduce the offer of judgment at trial.

Assume the plaintiff rejects the offer and then recovers a judgment for less than was offered. In that case, the plaintiff must pay the costs the defendant incurred after the date of making the offer.

What costs does a plaintiff have to pay the defendant?

As stated, Rule 68 applies to “costs” incurred by the defendant from and after the date the offer was made.

At first that sounds significant. But, the term “costs” has such a narrow meaning in Mississippi that Rule 68 really has no teeth in most cases.

Specifically, in the vast majority of cases in Mississippi, the term “costs” only includes a narrow range of litigation expenses. These include filing fees, process fees, non-expert witness fees, and the like. It does not include a wide range of expenses and, more importantly, it does not include attorney’s fees.

There are a few Mississippi statutes that would allow an award of attorney’s fees and expert witness fees in this situation, but they are rare cases. See, e.g. , Hubbard v. Delta Sanitation of Mississippi , 64 So.3d 547, 564 (Miss. Ct. App. 2011).

But, in most cases, the small amount of costs recoverable under Rule 54 are the same type of costs recoverable under Rule 68.

What if the jury returns a verdict for the defendant?

This is an interesting twist to Rule 68. Under the Rule, the plaintiff only has to pay costs if the plaintiff obtains a judgment for less than the amount offered by the defendant.

If there is a defense verdict, then the plaintiff did not obtain a judgment. So, the plaintiff would not have to pay costs.

Note: An offer of judgment can also be made by counter-defendant to a counter-plaintiff.

Craig Painter

The post Offers of judgment – the illusion of leverage appeared first on Panter Law Firm, PLLC .

When can a lawyer talk to a witness?

Thu, 12 Jan 2017 19:12:00 GMT

Talking to a witness

Talking to a witness before he testifies.

For purposes of this discussion, we will divide witnesses into three general categories. Those are clients, opposing parties, and unrepresented third parties.

A lawyer can always talk to his own client before the client testifies.

There is, of course, not prohibition against a lawyer talking to his client prior to the client testifying. In fact, that is precisely what the lawyer is supposed to do.

A lawyer can never tell a witness to lie under oath.

As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.

With some exceptions, a lawyer ask a witness not to talk to the other side.

A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is:

(i) a client or

(ii) a relative, employee or agent of a client.

The lawyer must also reasonably believe that the interests of the witness will not be adversely affected by keeping quiet. See Rule 3.4 of the Mississippi Rules of Professional Conduct.

Witnesses who do not have a lawyer.

When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following:

– A lawyer shall not state or imply that the lawyer is disinterested.

– When the lawyer should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

– The lawyer shall not give legal advice to an unrepresented person. However, the lawyer may advise him to get his own attorney if the lawyer believes there is a conflict between the interests of the client and the other person.

Witnesses who have their own lawyer.

Rule 4.2 states “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

When the opposing party is a business entity, what restrictions apply?

The Mississippi Bar’s Ethics Opinion No. 215, rendered March 04, 1994, says this : “In representing a client, a lawyer may ethically communicate, ex parte, with an unrepresented individual that was formerly employed by a represented party.”

Put more simply, if a lawyer is suing a company, he can communicate directly with former employees of that company.

Further, the Comment to Rule 4.2 states:

In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Thus, communication with some current employees is also permitted. But, if the other side learns of the communication, the lawyer is going to have to carry the burden of showing that the employee is outside the scope of Rule 4.2.

Craig Painter

The post When can a lawyer talk to a witness? appeared first on Panter Law Firm, PLLC .

The Attorney Marketing Center–Earn More. Work Less

Wed, 11 Jan 2017 21:44:00 GMT

Source: The Attorney Marketing Center–Earn More. Work Less | David M. Ward

The post The Attorney Marketing Center–Earn More. Work Less appeared first on Panter Law Firm, PLLC .

Handling Highly Prejudicial Evidence

Tue, 10 Jan 2017 12:58:00 GMT

Highly Prejudicial Evidence

Highly prejudicial evidence can take many forms, and it largely depends upon the facts of a particular case. So, it is not possible in this post to address each form it may take.

There are, however, at least three concerns with the handling of highly prejudicial evidence – – evidentiary, ethical, and practical.

Evidentiary.

The Mississippi Rules of Evidence explain that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In addition, it may be excluded by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The rule does not define “unfair prejudice,” nor could it, since each case turns upon its own facts.

Ethical concerns with prejudicial evidence.

From an ethical standpoint, Rule 3.6(a) of the Mississippi Rules of Professional Conduct states that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

As mentioned in another post , Section 73-3-37 of the Mississippi Code prohibits a lawyer from advancing a fact “prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged.”

These statements reflect the fact that a lawyer owes a duty to the entire judicial system and not just to his client.

Practical considerations.

The practical consideration is this – – premature announcement of highly prejudicial evidence in the presence of the jury (or a judge in a non-jury case) creates the risk of a mistrial. Further, it the evidence is a personal nature, using it can also create the impression that the lawyer is being a bully to the witness.

Source: Quick update on the FLSA overtime rule – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

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Quick update on the FLSA overtime rule

Mon, 09 Jan 2017 16:33:00 GMT

By: Constangy Brooks Smith & Prophete LLP

The post Quick update on the FLSA overtime rule appeared first on Panter Law Firm, PLLC .

Is it ethical to assist a pro se party?

Mon, 09 Jan 2017 11:39:00 GMT

Pro se parties

A “pro se” party is a non-lawyer who is representing himself in court. Can a lawyer ethically assist that person “behind the scenes” by drafting documents to be filed in court?

Ghostwriting.

Ghostwriting is the practice of drafting a document and then letting someone else sign it as if he had actually written it.

Similarly, in Nelson v. Lake Charles Stevedores, L.L.C. , 2012 WL 4960919, at *5 (W.D. La. Oct. 17, 2012) (cited with approval in Auto Parts, supra ), the court issued this warning

What do the rules of ethics in Mississippi say?

Rule 1.2 of the Mississippi Rules of Civil Procedure says a lawyer “may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Importantly, the Comment to Rule 1.2 adds this:

“Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record .” (emphasis added)

Similarly, Rule 5.5 prohibits a lawyer from assisting a non-lawyer in the unauthorized practice of law. Yet, the Comment to Rule 5.5 explains that “a lawyer may counsel nonlawyers who wish to proceed pro se.”

The position of the American Bar Association.

In 2007, the ABA issued its Formal Opinion 07-446, in which it concluded that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

Some court decisions have concluded that ghostwriting violates a particular rule of court. But, that issue is separate and apart from whether it is an ethical violation.

So, based upon the foregoing, it does not appear that assisting a pro se party violates the Mississippi Rules of Professional Conduct. Before you do it, however, it may be wise to learn what the particular judge on the case thinks about it.

Craig Painter

The post Is it ethical to assist a pro se party? appeared first on Panter Law Firm, PLLC .

Referral Fees and Fee Sharing

Mon, 09 Jan 2017 09:14:00 GMT

Fee Sharing

Referral Fees.

From time to time, lawyers talk about receiving a referral fee. The term “referral fee” means a fee paid to a lawyer who does nothing more than refer a client to another lawyer. The Rules are clear on this – – you cannot ethically do it.

Rule 7.2(i) of the Mississippi Rules of Civil Procedure state that a “lawyer shall not give anything of value to a person for recommending the lawyer’s services.”

There is an exception when the lawyer pays for advertising. In addition, the lawyer may pay the usual charges of a lawyer referral service or other legal service organization.

Fee Sharing.

Although referral fees are prohibited, Rule 1.5(e) does allow a fee to be divided between lawyers who are not in the same firm. This division can be done in two ways:

(1) If the division is in proportion to the services performed by each lawyer, or

(2) Each lawyer signs a contract with the client and each assumes joint responsibility for the representation.

Thus, a lawyer does have an option of (a) referring a client to another lawyer and (b) sharing in the fee without actually working on the matter. But, that requires a written agreement with the client in which both lawyers assume joint responsibility for the representation. (The Comment to the Rule explains that it is not necessary to tell the client exactly how the fee will be split.)

Client consent.

Regardless of which fee sharing option the lawyers use:

(a) the client must be told and must not object, and

(b) the total fee must be reasonable.

A word of caution.

Before you consider sharing a fee with another lawyer, bear in mind the decision of the Mississippi Supreme Court in Duggins v. Guardianship of Washington Through Huntley , 632 So. 2d 420, 422 (Miss. 1993).

In that case, attorney Duggins signed up a personal injury case involving a child. He then associated attorney Douglas Barfield. Unfortunately for Duggins, his co-counsel Barfield:

– Falsely stated that he had filed suit;

– Settled the case without telling the insurance company about Duggins’ interest in the matter; and

– Absconded with most of the settlement funds.

Barfield was disbarred and convicted of a felony. The evidence was that Barfield had deceived Duggins as well as the child’s parents.

That was not the end of the story for Duggins, however. The Guardianship filed suit against him for an accounting of the funds.

The Mississippi Supreme Court held that the relationship created between Duggins and Barfield was, at a minimum, a joint venture. As a result, Duggins was liable for the damage caused by Barfield.

Moreover, although the lower court found that Barfield (not Duggins) engaged in conduct that warranted a punitive damage award, the Supreme Court held that Duggins was vicariously liable for Barfield’s actions and, therefore, was liable for punitive damages as well.

(Also of interest in Duggins is a discussion about the potential liability of an attorney for making a negligent referral of a client to another lawyer.)

Sharing fees with a non-lawyer.

Rule 5.4 prohibits a lawyer from sharing legal fees with a non-lawyer. An exception is made, however, for including non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

In the case of In re Holmes , 304 B.R. 292, 295-96 (Bankr. N.D. Miss. 2004), an attorney was held to have violated Rule 5.4 by paying his staff $5.00 bonuses each time one of the following events occurred:

-When the client paid at least $300.00 and executed a retainer agreement.

-After the client completed and returned the bankruptcy questionnaire.

-When the client signed a living will and/or durable powers of attorney.

The court explained that “[t]he arrangement conveys a pecuniary interest to the non-lawyer employee that is directly dependent on a decision that the client is called upon to make.”

So, think carefully about fee sharing, and follow the Rule.

Source: Attacks Against Low Level Non-Compete Agreements: What Employers Need to Know – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

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Do I have a Car Wreck Claim?

Sun, 08 Jan 2017 21:39:00 GMT

Source: Pepper & Odom Law Firm Do I have a Car Wreck Claim? – Pepper & Odom Law Firm

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Attacks Against Low Level Non-Compete Agreements

Sat, 07 Jan 2017 15:50:00 GMT

By the Shumaker Loop & Kendrick law firm

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EEOC Statement on Sexual Harassment as a Form of Discrimination

Sat, 07 Jan 2017 14:51:00 GMT

read more here: Source: Sexual Harassment

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Identifying and Avoiding Conflicts of Interest

Sat, 07 Jan 2017 09:39:00 GMT

Conflicts of Interests

It has been said many times “if you think you may have a conflict, then you probably do.” Perhaps. But, then again, maybe not.

When it comes to conflicts, follow the Rules.

Lawyers owe it to themselves and their clients to provide legal representation when permitted to do so.

A “better safe than sorry” approach ignores the fact that we have available to us a detailed set of Rules to consult. Those Rules tell us when we do, and when we do not, have a conflict of interest.

This author can think of several times when his first thought was that he may have a conflict but, upon careful review of the Rules, he determined that he did not.

This is a personal view, but a lawyer should be reluctant to determine ethical obligations by invoking a default rule such as “I think I might have a conflict, so I must have one.” Let the Rules and Ethics Opinions guide you on this issue.

That being said, the Rules address two primary types of conflicts.

Conflicts between two current clients whose interests are directly adverse.

Rule 1.7(a) of the Mississippi Rules of Professional Conduct applies when the lawyer has two current clients. The Rule prohibits a lawyer from representing Client A if the representation of Client A will be directly adverse to Client B.

An exception applies if:

-the lawyer reasonably believes the representation of Client A will not adversely affect the relationship with Client B (and vice versa); and

-both clients give knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

Conflicts which may “materially limit” a lawyer’s responsibilities.

Rule 1.7(b) states that a lawyer shall not represent Client A if the representation of Client B may be “materially limited” by:

-the lawyer’s responsibilities to Client B,

-the lawyer’s obligations to a third person, or

-the individual interests of the lawyer.

Again, an exception applies if the lawyer reasonably believes:

(1) the representation of Client A will not be adversely affected; and

(2) Client A given knowing and informed consent after consultation. be directly adverse to Client B.

How easy is it to get “knowing and informed consent” from the client?

The Comment to Rule 1.7 explains that “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”

Question : If you were the disinterested lawyer being asked, how likely would you be to recommend that a client sign a waiver so that his/her attorney could act “directly adverse” to the client’s interest?

Conflicts between a current client and a former client.

Rule 1.9 states that a lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Imputed disqualification.

When applying these Rules, lawyers must always keep in mind the possibility imputed disqualification under Rule 1.10:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.4.

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.

Craig Painter

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Retainer agreements between lawyer and client

Fri, 06 Jan 2017 12:20:00 GMT

Retainer Agreement Retainer agreements .

It is, of course, a very good idea for a lawyer to have a written agreement with the client that sets forth all of the material terms of the representation.

The Mississippi Rules of Professional Conduct, however, only require a written agreement for a contingency fee. See Rule 1.5(c). The contingency fee agreement must cover the following:

– the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; and

– litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

Upon conclusion of a contingent fee matter, the lawyer must provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Prohibited language in retainer agreements.

In addition to being sure that the contingency fee agreement includes the required language, be sure that it does not contain any prohibited language.

In Estate of St. Martin v. Hixson , 145 So. 3d 1124 (Miss. 2014), after the client settled his personal injury claim, he filed a complaint against his attorney challenging the validity of the contingency fee agreement. The agreement in question contained these two problematic provisions:

-“No compromise can or will be made without my (our) signature(s) and without the approval and signature of my (our) attorney….”

-“My (Our) attorney may be fired only for negligent handling of my (our) claim or failure to pursue my (our) claim with ordinary legal diligence. In all other cases, my (our) attorney is entitled to a full fee as outlined above for any settlement I (we) receive in the above matter, even though other counsel may be consulted or hired.”

The Supreme Court held both provisions to be unenforceable. This ruling is correct, of course, because the claim belongs to the client (not the lawyer), and the client is always free to settle the case or to change counsel.

The Court did not, however, declare the entire contract to be void. Instead, it simply struck the unenforceable provisions. Compare that with the Fifth Circuit’s decision in Matter of P & E Boat Rentals, Inc ., 928 F.2d 662, 664-65 (5th Cir. 1991). There the court (applying Louisiana law) held that no contract that is in conflict with controlling ethical standards should be recognized and enforced by the court.

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How long should a lawyer keep a client’s file?

Thu, 05 Jan 2017 22:09:00 GMT

Client Files

Client Files . Ethics Opinion No. 254, rendered December 08, 2005: How long should Mississippi attorneys retain files before either returning them to the client or destroying the files?

The Committee provided a very lengthy analysis of the Rules bearing on this issue. Having done so, the answer the Committee reached was this:

“We cannot say that there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files. Good common sense should provide answers to most questions that arise.”

Common sense guidelines in retaining client files.

To help us apply our common sense, the Committee gave us 8 factors to consider. The 8 factors come from a 1984 ABA opinion. The Committee says we can confidently avoid discipline if we follow these rules ( at least to the extent that such principles have not been overruled by subsequent opinions) :

1. Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).

2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.

3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.

4. In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.

5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.

6. In disposing of a file, a lawyer should protect the confidentiality of the contents.

7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.

8. A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.

Good luck!

Craig Painter

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Understanding Waivers Of Discrimination Claims In Employee Severance Agreements

Thu, 05 Jan 2017 21:20:00 GMT

Source: Understanding Waivers Of Discrimination Claims In Employee Severance Agreements

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Top 5 Mistakes Employers Make with Their Employee Handbooks

Wed, 04 Jan 2017 16:12:00 GMT

Source: Top 5 Mistakes Employers Make with Their Employee Handbooks – Mississippi Bar Newsstand – Powered by Lexology By the Gardere Law Firm

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Conflicts of interest involving paralegals

Wed, 04 Jan 2017 07:41:00 GMT

Paralegal Conflicts of Interest

The Mississippi Bar’s Ethics Opinion No. 258, rendered December 01, 2011, addresses the question of whether a paralegal who left Firm 1 could create a conflict of interest for Firm 2, which was adverse to a client of Firm 1.

The Committee concluded that disqualification of a paralegal is not imputed to the firm so long as the non-lawyer is screened to protect confidential information. The screening process of a non-lawyer should involve the supervisory lawyer cautioning the non-lawyer:

(1) not to disclose any information relating to the representation of a client of the former employer; and

(2) that the employee should not work on any matter in which the employee worked for the prior employer or respecting which the employee has information relating to the representation of the client of the former employer.

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Metadata and an attorney’s duties

Tue, 03 Jan 2017 11:21:00 GMT

Metadata and lawyers

Metadata and a lawyer’s duties.

Ethics Opinion No. 259

On November 29, 2012, the Mississippi Bar issued Ethics Opinion No. 259 regarding metadata in documents prepared by a lawyer.

(1) An attorney must take reasonable precautions to make sure that confidential metadata is not inadvertently revealed by an electronic document.

(2) An attorney may not actively search for confidential metadata in an electronic document received from another attorney.

What documents are covered by the Opinion?

Opinion 259 applies to electronic documents that are voluntarily provided by one attorney to another attorney. Metadata contained in electronic documents provided in response to discovery requests or pursuant to a subpoena are not covered by the Opinion and are subject to applicable court rules.

The rationale for part (1) of the Opinion comes from Rule 1.6, which imposes a duty on a lawyer to maintain a client’s confidence.

The rationale for part (2) of the Opinion comes from Rule 8.4(c) and (d) which, respectively, prohibit a lawyer from engaging in dishonest conduct and conduct prejudicial to the administration of justice.

The Committee explained that “mining metadata is analogous to an attorney searching an opponent’s unattended briefcase during a deposition break or using a listening device when an opposing attorney confers with his client in an adjoining room.”

Exceptions to the lawyer’s duty in handling metadata.

The Committee does not believe that the Rules prohibit lawyers from passive use of metadata. For example:

If you are concerned that confidential metadata concerning you or your business has been disclosed, call the Panter Law Firm at 601-607-3156 for a consultation.

Craig Painter

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Going Rogue at a 30(b)(6) Deposition.

Mon, 02 Jan 2017 20:24:00 GMT

Source: _ – 43-1_going_beyond_the_30b6_deposition.authcheckdam.pdf

The post Going Rogue at a 30(b)(6) Deposition. appeared first on Panter Law Firm, PLLC .

A lawyer’s duties to clients and third parties.

Mon, 02 Jan 2017 10:53:00 GMT

A lawyer’s duties

This is the first in a series about a lawyer’s duties.

“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living”.

Preamble to the Mississippi Rules of Professional Conduct

Rules of Professional Conduct

The primary source of our ethical guidelines are, of course, the Mississippi Rules of Professional Conduct.

Without doubt, the Rules govern the conduct of lawyers while they are practicing law. That is, of course, the primary focus of the Rules.

It is important to recognize, however, that the Rules do more than govern us when we are practicing law. Some of them govern us simply because we are lawyers, and they follow us wherever we go.

The Preamble to the Rules explains:

[T]here are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

A second source of attorney duties

This source does not get mentioned very much. It is Miss. Code Ann. Section 73-3-37, which makes it the duty of each attorney:

(1) To support the constitution and laws of this state and of the United States;

(2) To maintain the respect due to courts of justice and judicial officers;

(3) To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;

(4) To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;

(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;

(6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;

(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.

Discipline

A lawyer can be disciplined for violations of both the rules and the statute. See, e.g., Clark v. Mississippi State Bar Association, 471 So. 2d 352, 355 (Miss. 1985).

In this regard, the Preamble to the Rules explains that:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.

On the other hand, Section 73-3-37 contains no such caveat.

If you have a question about a lawyer’s duties, call the Panter Law Firm for a consultation. 601-607-3156.

Craig Painter

The post A lawyer’s duties to clients and third parties. appeared first on Panter Law Firm, PLLC .

What Is Excessive Force? – ABC News

Sun, 01 Jan 2017 20:36:00 GMT

Excessive Force

Source: What Is Excessive Force? – ABC News

The post What Is Excessive Force? – ABC News appeared first on Panter Law Firm, PLLC .

Forum Selection Clauses in Contracts

Sun, 01 Jan 2017 20:08:00 GMT

Contracts and Forum Selection Clause

Contracts often contain a forum selection clause. The term “forum” means the place where any lawsuit about the contract must be filed.

Forum selection clauses work in two ways.

First, they identify the state in which the lawsuit must be filed. We call that a “location provision.”

Second, these clauses identify which court in the state must hear the case. We will refer to that as a “court provision.”

Location provisions.

In the absence of a forum selection clause, there are a number of laws and rules that determine where a lawsuit can be filed. Generally speaking, the defendant’s place of residence is the most common factor in making this decision.

Mississippi law, however, allows parties to agree that the lawsuit can be filed somewhere else. Though it sounds strange, in some situations, two Mississippi residents could agree that any lawsuit between them must be filed in a different state.

Location provisions can also identify the part of the state in which the case must be heard. For example, parties can choose to litigate in Hinds County, Mississippi, regardless of whether either of them lives there.

Court provisions.

Courthouse

In this type of provision, the parties agree that a particular court or group of courts must hear the lawsuit. They could, for example, agree that their contract dispute be resolved by a state court instead of a federal court. They could do the reverse as well.

The only significant limitation is that the parties cannot create subject matter jurisdiction by agreement. When a particular court has legal authority to hear a certain type of case, it is said to have subject matter jurisdiction.

Federal courts, for example, have jurisdiction to hear certain lawsuits between parties of different states. But, assume two Mississippi residents agree to that their dispute will be heard in federal court. Regardless of the agreement, the federal court will not hear the lawsuit if it does not have subject matter jurisdiction.

Your contract should contain a forum selection clause.

Such a clause is valuable when drafting a contract. It brings certainty to the question of where the parties will have to go to have a contract dispute resolved.

Assume you enter into a contract with another Mississippi resident, but the contract does not have a forum selection clause. Then, assume that person moves to another state.

In that situation, you might have to file suit in that other state. A forum selection clause, however, could establish that the lawsuit must only be brought in Mississippi.

If you are considering entering into a contract and need advice about a forum selection clause, contact the Panter Law Firm at 601-607-3156 for a consultation.

Source: THE GOOD, THE BAD AND THE UGLY Employer’s $7.8 million defamation win drives SEIU Local to file for bankruptcy. – Mississippi Bar Newsstand – Powered by Lexology

Craig Painter

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Employer’s $7.8 million defamation win drives SEIU Local to file for bankruptcy.

Fri, 30 Dec 2016 16:40:00 GMT

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How to File an Invasion-of-Privacy Lawsuit | Legalbeagle.com

Thu, 29 Dec 2016 16:22:00 GMT

Source: How to File an Invasion-of-Privacy Lawsuit | Legalbeagle.com

The post How to File an Invasion-of-Privacy Lawsuit | Legalbeagle.com appeared first on Panter Law Firm, PLLC .

Health Reimbursement Accounts for Small Employers | Burns & Levinson

Wed, 28 Dec 2016 15:34:00 GMT

Health Reimbursement Accounts

Source: Health Reimbursement Accounts for Small Employers | Burns & Levinson LLP – JDSupra

The post Health Reimbursement Accounts for Small Employers | Burns & Levinson appeared first on Panter Law Firm, PLLC .

NFL Player Jason Pierre-Paul of the New York Giants Sues ESPN

Wed, 28 Dec 2016 09:54:00 GMT

Source: NFL Player Jason Pierre-Paul of the New York Giants Sues ESPN and Reporter Adam Schefter

The post NFL Player Jason Pierre-Paul of the New York Giants Sues ESPN appeared first on Panter Law Firm, PLLC .

Discovery in a Civil Lawsuit

Tue, 27 Dec 2016 07:18:00 GMT

Source: Pepper & Odom Law Firm Discovery in a Civil Lawsuit

The post Discovery in a Civil Lawsuit appeared first on Panter Law Firm, PLLC .

Public Disclosure of Private Facts

Mon, 26 Dec 2016 17:16:00 GMT

Private Facts

Private Facts . We previously discussed claims for invasion of privacy in this post . Now, we will talk in greater detail about one of those claims – – public disclosure of private facts.

What are the elements of the claim?

Mississippi law gives each person a substantial zone of freedom which, at his election, he may keep private.

Therefore, a person who learns of a private fact and discloses it to the public may be sued under two conditions:

What is considered a private fact?

Mississippi law does not create a “hard and fast” rule for deciding what is a private fact. Each case turns upon its own circumstances. But, it is clear that the plaintiff must have kept the fact confidential.

That does not mean that the plaintiff must have told no one. Certainly, a person can confide in a close friend or relative. Yet, it must be clear that the person was maintaining his privacy.

Public disclosure.

This element of the claim requires a “public” disclosure of the private fact. It must have communicated to so many people that it is substantially certain to become a matter of public knowledge.

So, for example, it is not an invasion of privacy when a person communicates a private fact to a single person or even a small group of persons. On the other hand, publications in newspapers and magazines are clearly public disclosures. Facebook posts are likely to be public disclosures.

The reasonable person test.

The law requires that a reasonable person would find the disclosure to be highly offensive. So, the test is an objective one. It asks what a reasonable person would think, not necessarily what the plaintiff thought.

A plaintiff cannot hold a defendant liable, then, unless the defendant should have reasonably foreseen that his remarks would be highly offensive to a reasonable person.

The absence of public concern.

Finally, to establish a claim, a plaintiff must show that the private fact was not a matter of public concern.

If, at the time of the disclosure, the fact was something that was the subject of legitimate news interest and of value and concern to the public, then the defendant cannot be held liable.

If someone has invaded your privacy by making a public disclosure of private facts, call the Panter Law Firm for a consultation at 601-607-3156.

The post Public Disclosure of Private Facts appeared first on Panter Law Firm, PLLC .

Libel and Slander- Two Forms of Defamation

Sun, 25 Dec 2016 22:28:00 GMT

Libel and slander are both names for defamation. Libel is written, and slander is verbal. The two are otherwise identical.

The elements of defamation.

Whether written or verbal, the following elements constitute defamation:

What is a false statement in the eyes of the law?

Generally speaking, the publisher of the statement must be talking about a fact and not just giving his opinion. For example, a statement of fact would be calling someone a “known thief.” On the other hand, saying that a person “seems untrustworthy” would simply be an opinion.

Even so, opinions can rise to the level of being a false statement . To do so, they must “clearly and unmistakably” imply knowledge of underlying facts as the basis for the opinion.

Unprivileged publication to a third-party.

This element of defamation means that the publisher of the false statement did not have a privilege, or right, to make the statement to a third-party. The law provides many such privileges, such as

Some privileges are absolute. A publisher who makes a statement that is subject to an absolute privilege cannot be sued for any reason.

Other privileges are qualified, meaning that the publisher cannot be sued as long as they were acting reasonably and in good faith (even if they were wrong).

Libel or slander resulting from negligence or greater fault.

In a defamation lawsuit, a plaintiff must show that the publisher was at least negligent. So, relevant matters include:

Damage to reputation.

Finally, a plaintiff in a defamation suit must prove injury to his reputation. A plaintiff proves injury in one of two ways.

First, there is a category of defamation known as “ per se defamation.” This means that the law presumes damage to reputation from certain types of false statements.

The five categories of per se defamation are words that:

When the defendant has committed per se defamation, the plaintiff is not required to prove actual damages. Instead, the jury is allowed to make that decision.

In all other cases, however, a plaintiff has to actually prove damage resulting from the defamation. This can include loss of income, emotional distress, or other compensable injuries.

A word of caution.

Before you file a lawsuit alleging injury to your reputation, there is something to keep in mind. By making your reputation an issue in a lawsuit, you are opening the door to the defendant putting on a wide-array of information about you and your past.

If you claim you had a very good reputation, the other side will get to dredge up things that would otherwise be irrelevant. As result, if you are thinking about filing a defamation lawsuit, be very candid in disclosing your past with your attorney.

One last note.

You have heard the saying that “truth is an absolute defense” to a defamation lawsuit. That is true.

But, even if what somebody said about you is true, you may still have a cause of action for invasion of privacy. Specifically, you may have a claim for the public disclosure of private facts. Read more about invasion of privacy claims here .

If you are considering a defamation lawsuit, contact the Panter Law Firm for a consultation. 601-607-3156.

The post Libel and Slander- Two Forms of Defamation appeared first on Panter Law Firm, PLLC .

South Carolina Bar Sued For Overserving Motorcyclist Who Crashed, Killed Passenger

Sat, 24 Dec 2016 18:28:00 GMT

Source: South Carolina Bar Sued For Overserving Motorcyclist Who Crashed, Killed Passenger

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Freedom of Speech and the First Amendment

Fri, 23 Dec 2016 17:23:00 GMT

Freedom of Speech

The First Amendment to the United States Constitution guarantees the right to freedom of speech. So, what happens when the government interferes with that right?

The right to speak is the cornerstone of our system of government.

The United States Supreme Court said that the country has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” It may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

As a result, the right to speak and write whatever one chooses-including, to some degree, worthless, offensive, and demonstrable untruths. Put simply, the right to speak “without cowering in fear of a powerful government” is an essential component of the First Amendment.

The government cannot retaliate against a person for protected speech.

Government officials may not retaliate against private citizens because of the exercise of their First Amendment rights. Such action strikes at the heart of the First Amendment.

In ordinary citizen cases, the government violates the First Amendment the government took action against the person because of what he said or wrote.

What does a citizen have to prove to win a retaliation case?

There are three elements to a First Amendment retaliation claim. Those are:

(1) constitutionally protected speech.

(2) retaliatory conduct that caused an injury that would chill a person of ordinary firmness.

(3) adverse actions that were substantially motivated by what the speaker said.

As to the first element – – constitutionally protected speech – – not every type of speech is protected. But, most speech is. The court will decide this question as a matter of law.

The second element asks whether the government’s conduct would cause an average person to change his speech (i.e., be “chilled”) in order to avoid the retaliation.

Finally, the third element requires the plaintiff to prove that the government took the action in question because of the plaintiff’s speech. Of course, this is a question that has to be answered on a case-by-case basis.

If the government has retaliated against you because you exercised your First Amendment rights, call the Panter Law Firm for a consultation. 601-607-3156.

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Management Time: Who’s Got the Monkey?

Fri, 23 Dec 2016 16:13:00 GMT

Source: Management Time: Who’s Got the Monkey?

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Dram Shop Laws: Bar Owner Liability for Drunk Driving Accidents – AllLaw.com

Fri, 23 Dec 2016 12:11:00 GMT

Source: Dram Shop Laws: Bar Owner Liability for Drunk Driving Accidents – AllLaw.com

The post Dram Shop Laws: Bar Owner Liability for Drunk Driving Accidents – AllLaw.com appeared first on Panter Law Firm, PLLC .

How the New EEOC Rules Put Employers at a Disadvantage

Thu, 22 Dec 2016 08:00:00 GMT

Source: How the New EEOC Rules Put Employers at a Disadvantage

The post How the New EEOC Rules Put Employers at a Disadvantage appeared first on Panter Law Firm, PLLC .

The Ten Biggest Mistakes Lawyers Make in Mediation

Wed, 21 Dec 2016 16:27:00 GMT

Source: The Ten Biggest Mistakes Lawyers Make in Mediation

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Hiring Tips: 9 People to Remove From Your Inner Circle | Inc.com

Wed, 21 Dec 2016 16:17:00 GMT

Source: Hiring Tips: 9 People to Remove From Your Inner Circle | Inc.com

The post Hiring Tips: 9 People to Remove From Your Inner Circle | Inc.com appeared first on Panter Law Firm, PLLC .

Tips for giving a deposition

Wed, 21 Dec 2016 09:21:00 GMT

Giving a Deposition

You are about to give a deposition under oath. What should you consider?

The Number 1 rule – tell the truth

You should answer the question truthfully. Many people believe that they can conceal the truth and get away with it.

A good lawyer will, however, figure out a way to learn the truth. Your case will suffer dramatically if, at trial, the other lawyer can prove you did not testify truthfully. So, always tell the truth.

Keep your answers short during the deposition.

The other lawyer is trying learn what you will say if the case goes to trial. So, she gets a big advantage knowing this in advance so she can better prepare to cross-examine you.

The opposite is true. She is at a disadvantage if she does not know what you are going to say at trial.

For this reason, you should use as few words as are necessary to give an accurate, truthful answer.

Here is a good example : If the lawyer points to your watch and asks you “Do you know the time”, your truthful answer should be “yes”. The answer is not “1:30.” Remember, he did not ask you to tell him the time; he only asked if you knew the time.

The other lawyer is not your friend.

A good lawyer will act friendly. But remember, her goal is to win the case for her client. You cannot win the case by talking the other lawyer out of her position

Do not volunteer information during the deposition.

The purpose of a deposition is not to tell your story. That will happen at trial.

As stated above, the reason the other lawyer is taking your deposition is to get advance notice of what you will say at trial.

As a result, do not make speeches and do not try to persuade the other lawyer that he is wrong.

Do not complain the questions are unfair or irrelevant.

You should, of course, be represented by a lawyer at your deposition. If so, it is his job to decide when questions are unfair or should not be answered.

This means you should not argue with the other lawyer. Let your lawyer do his job.

You are not required to know the answer to every question.

Sometimes you just do not know or just do not remember. Those are perfectly acceptable answers.

A deposition is not like a test at school. You do not get any benefit from guessing at the answers. If you really do not know, just say so.

What happens if you later realize you made a mistake?

So, what happens next? After the deposition is over, the court reporter will transcribe your testimony and deliver a copy to your lawyer. After that, you will then have 30 days to read it and make any corrections.

If, after reflection, you realize you gave an incorrect answer, you are entitled to correct it. So, do not keep yourself awake after the deposition worrying about whether you made a mistake. Be aware that the Rules give you adequate time to correct any mistakes.

If you need representation at a deposition, call the Panter Law Firm for a consultation at 601-607-3156.

Source: Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not. | The Researching Paralegal

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Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not. | The Researching Paralegal

Tue, 20 Dec 2016 08:08:00 GMT

The post Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not. | The Researching Paralegal appeared first on Panter Law Firm, PLLC .

Police Excessive Force | American Civil Liberties Union

Mon, 19 Dec 2016 22:09:00 GMT

Source: Police Excessive Force | American Civil Liberties Union

The post Police Excessive Force | American Civil Liberties Union appeared first on Panter Law Firm, PLLC .

Tolling Agreements in Mississippi

Mon, 19 Dec 2016 08:00:00 GMT

Tolling Agreements in Mississippi

Parties use a tolling agreement when a statute of limitation is about to expire.

For example, assume two parties are negotiating a settlement over a car wreck. The negotiations are going well. The parties think that in another 10 days, they will probably reach agreement. But, the claimant must file suit in five days or be barred by the statute of limitation.

In this situation, parties have traditionally entered into an agreement. The agreement stops or “tolls” the running of the statute of limitation. This allows the negotiations to continue past the statute of limitation. If they cannot settle, then the claimant can still file suit.

The Mississippi Supreme Court strikes down most tolling agreements.

For many years, lawyers and parties have used tolling agreements in Mississippi. They had a beneficial effect of making a lawsuit unnecessary if the parties settle after a statute of limitation had run. In the absence of tolling agreement, a plaintiff would have to go ahead and file suit to protect his rights.

Notwithstanding this practice, in 2012 the Mississippi Supreme Court made its decision in Townes v. Rusty Ellis Builder, Inc. , 98 So.3d 1046 (Miss. 2012).

In Townes , the plaintiffs and defendant entered into a tolling agreement in the “hope to avoid the immediate need of the filing of a lawsuit.” But, the negotiations fell through after the statute of limitations had passed. When that happened, the defendant ignored the contract and asserted the defense of statute of limitation.

The Mississippi Supreme Court agreed that the tolling agreement was void. The Court noted that Title 15, Chapter 3, Section 5 of the Mississippi Code states that “the limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties.”

As a result, the plaintiffs could not pursue all of their claims.

Tolling agreements are still used in limited circumstances.

Mississippi law provides many different statutes of limitation depending upon the nature of the claim. Title 15, Chapter 3 of the Code contains most of them.

But, many others are scattered throughout the Code. As the Supreme Court noted in Townes , the prohibition about changing statute of limitation by contract only applies to statute of limitations found in Title 15, Chapter 3.

If you are considering entering into a tolling agreement with another party, contact the Panter Law Firm for a consultation at 601-607-3156.

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Objections to Written Discovery

Sun, 18 Dec 2016 20:56:00 GMT

Objections to Written Discovery

Every lawyer who practices litigation knows the frustration of receiving general or “blanket” objections to written discovery. For example, “Defendant objects to each and every interrogatory on the grounds that it is made, unlimited in time, invasive of attorney work product, seeks privileged information, ambiguous, blah, blah, blah….”

This practice is widespread. But, do the Mississippi Rules of Civil Procedure permit these general objections?

Rule 33 on interrogatories

Rule 33 states what that a party must answer an interrogatory:

• Separately,

• Fully, and

• Under oath.

If an objection is made to an interrogatory, the party must:

• State the reasons for the objection, and

• Otherwise answer the non-objectionable portion of the interrogatory.

The Comment to the Rule gives an example of a non-objectionable part. “If, for example, an interrogatory seeking information about 30 facilities is deemed objectionable, but an interrogatory seeking information about 10 facilities would not have been objectionable, the interrogatory should be answered with respect to the 10 facilities.”

Responding to Requests for Production of Documents

Rule 34 places a similar obligation on a party responding to requests for production. With respect to each item requested, the party must state that it will be produced unless an objection is made.

In making an objection, the party must state the reasons for the objection. Then, he must respond to the non-objectionable part.

Responses to Requests for Admission

If a party does not admit a particular request for admission, he has two options. He can:

(a) Specifically deny the matter, or

(b) Set forth in detail why he cannot truthfully admit or deny it.

A party must answer in good faith. So, if good faith requires that a party qualify an answer or deny only part of the request, he must do so.

If a party invokes lack of information or knowledge, he must also states that the information known or readily obtainable by him is insufficient to allow him to answer.

The rules and case law prohibit the use of general objections.

In Ford Motor Co. v. Tennin , 960 So.2d 379 (Miss. 2007), the Mississippi Supreme Court specifically examined the propriety of general objections.

In that case, Ford Motor asserted a number of general objections, including this one:

“Ford objects on the ground that such requests are overly broad and unduly burdensome, and the information sought is neither relevant to the subject matter of this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.”

The Supreme Court wasted no time in rejecting this type of objection:

“General objections applicable to each and every interrogatory or request for production are clearly outside the bounds of this rule. If a party wishes to lodge an objection to a question or request submitted by the opposition, that party must make such objection to that specific question or request.”

The plaintiffs in Tennin had successfully moved in the lower court to have the general objections struck. Interestingly enough,the Supreme Court stated that even before the lower court struck the general objections, the plaintiffs had “rightfully ignored” them.

The Court also addressed specific objections made on a request-by-request basis. The Court emphasized that a party who receives incomplete responses or improper objections has the duty to pursue a motion to compel and bring it on for hearing. A party cannot wait and then try to take advantage of the improper response at trial.

A well-drafted set of discovery requests should include a reminder to the other side of these obligations and the prohibited use of general objections.

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Injured on someone’s property. Can I sue?

Fri, 16 Dec 2016 15:50:00 GMT

Injured on someone’s property

You were injured on somebody else’s property. Now, you want to know if you can sue the owner.

Some people believe that if they are hurt on someone else’s property, they automatically are entitled to be paid for their injuries. But, there is much more to it.

The reason you were on the property is important.

In Mississippi, all landowners owe a duty to persons who come onto their land. The duty owed, however, depends upon the reason the person is there.

The law distinguishes between three types of visitors. Those are trespasser, licensee, and invitee.

The lowest duty is owed to a trespasser who may be injured.

A trespasser comes on to the land of another person without permission or invitation. A landowner cannot willfully or wantonly injure a trespasser. Otherwise, the landowner does not owe a duty to make the property safe for the trespasser or to warn of hazards.

A landowner owes a similar duty a licensee.

A person who, for reasons of his own, asks for permission to come onto the property is called a licensee. For example, a hunter who gets permission to hunt on someone’s land is a licensee.

The owner of the land owes the same duty to licensee as he does a trespasser. That is, he must not willfully or wantonly injuring the licensee. So, for example, a landowner does not have to warn a licensee about a naturally occurring hole alongside a path.

An exception to this rule exists when the landowner actively creates a dangerous situation. So, if the landowner creates a hole near a path, he may have to warn the licensee of the hole.

The landowner owes the highest duty to an invitee.

A person who has been invited to go on the land of another for mutual advantage is an “invitee”.

The invitation can be express or implied. An express invitation occurs when the owner verbally or in writing invites someone to visit. An example of an express invitation would be a written invitation to attend a grand opening of a business.

The most common example of an implied invitation is the opening of a store. By opening a store, the owner impliedly invites customers to come and shop.

There are two types of invitees – – business and public. The person who shops at a store is a business invitee. A person who goes to a park or museum, for example, is a public invitee.

A landowner owes an invitee the duty to keep the premises reasonably safe. Also, the owner must warn the invitee of hidden danger or peril.

You should keep in mind that an invitee can lose that status and become a licensee or even a trespasser. A person who shops at the grocery store is an invitee. But, if that person goes into the storage part of the building without permission, he becomes a trespasser.

Call the Panter Law Firm at 601-607-3156 f you have been injured on the property of another and want to know your rights.

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Top 10 Reasons to Form an LLC | Enlighten Me

Thu, 15 Dec 2016 21:56:00 GMT

Source: Top 10 Reasons to Form an LLC | Enlighten Me

The post Top 10 Reasons to Form an LLC | Enlighten Me appeared first on Panter Law Firm, PLLC .

Should I guaranty my relative’s loan?

Wed, 14 Dec 2016 16:51:00 GMT

Guaranty a Loan

Your relative wants to borrow money and has asked you to guaranty repayment. Should you do it?

Why does the Bank want a guarantor?

Banks often require a third person to sign a guaranty when the borrower has bad credit or few assets. The bank wants someone with good credit and assets to assure repayment if the borrower defaults.

If you are considering signing a guaranty, you should be confident that you can repay the loan if necessary without suffering financial problems.

Many people sign guaranties thinking that they only have secondary liability behind the borrower. The fact is, however, that almost all guaranties state that the bank can come after you first if it chooses.

Can you help your relatives and still limit your exposure?

The answer is yes, and there are several ways to do this. We will look at these using an example of your relative borrowing $20,000 from the bank.

First, you should ask the bank if it will accept a limited guaranty. For example, ask the bank if it will limit your exposure to only $10,000 instead of the entire $20,000.

Second, you can ask the bank to put a time limit on your obligation. If your relative is going to repay the $20,000 over the next four years, the agreement can state that it expires after two years.

Third, the bank may allow each payment made by your relative to reduce the amount of your guaranty. So, after your relative repays $1000, your guaranty would then be $9000, and so on.

Finally, you should obtain a written agreement from your relative stating that he/she will repay you if you have to pay to the bank.

Will the bank negotiate over the terms of a guaranty?

Most banks use pre-printed forms. Even so, the bank wants to make a loan, and loan officers are usually open to negotiation on the loan terms. In any event, you should not simply sign the pre-printed form without talking to the loan officer about limiting your liability.

Click here for more information on co-signing loans, which is similar to a guaranty.

If you are considering signing a guaranty of a loan, call the Panter Law Firm at 601-607-3156 for a consultation.

The post Should I guaranty my relative’s loan? appeared first on Panter Law Firm, PLLC .

EEOC Updates Strategic Enforcement Plan

Tue, 13 Dec 2016 17:00:00 GMT

Source: EEOC Updates Strategic Enforcement Plan

The post EEOC Updates Strategic Enforcement Plan appeared first on Panter Law Firm, PLLC .

Key provisions of an Operating Agreement.

Tue, 13 Dec 2016 16:01:00 GMT

Signing an Operating Agreement

An earlier post discusses the formation of a limited liability company (“LLC”). As that post explains, the process includes creating an Operating Agreement for the company.

The agreement will cover many issues, but in particular you want to consider the following.

Naming the members and their percent of ownership

The Operating Agreement should name the persons who will be members of the LLC. In addition, the agreement should state the percentage of ownership (called “membership interest”) of each member.

Most Operating Agreements state that the members will share in the profits and losses of the company based upon their percentage of ownership. The law allows the members to agree to some different split if they want.

Business operations covered by the Operating Agreement

In Mississippi, the law allows a limited liability company to be formed for the purpose of “engaging in any lawful business.” Of course, most companies are formed with the intent that it will engage in a specific type of business.

You should read the Operating Agreement to determine whether the other members can vote to expand the business beyond what was originally planned.

Voting rights

It is common for the agreement to state that a member’s vote is equal to his or her membership interest. Again, the law allows the members to create different voting rights if they choose. It is even permissible to have non-voting members.

Before signing an Operating Agreement, you should understand your voting rights. You want to know your ability to determine the company’s direction.

Votes necessary to take action

A well-drafted Operating Agreement will explain the amount of votes necessary to take action on behalf of the company.

The agreement will provide that a vote of a majority of the membership interests is necessary to take a particular action. For example, if there are five members who each have a 20% membership interest, then three of them would have to vote to take action. Their votes equal 60% of the membership interests.

As stated above, however, the law allows for the Operating Agreement to set forth different requirements. For example, the agreement might call for:

You should understand how voting occurs before signing the Operating Agreement.

Capital contributions

At the time a limited liability company is formed, the members will usually make a financial contribution to the company to get it started. The contribution is often money, but it can also be property.

Before you sign the Operating Agreement, determine whether you can be required to make additional contributions in the future.

Withdrawing from the LLC

A well-drawn agreement will explain whether you can withdraw from the LLC at a future date. It will also address the financial consequences to you of doing so.

An Operating Agreement will cover many other issues. Before signing one, contact the Panter Law Firm for a consultation. 601-607-3156

The post Key provisions of an Operating Agreement. appeared first on Panter Law Firm, PLLC .

Dram Shop Laws: Can I Sue a Bar After an Alcohol-Related Accident? | Nolo.com

Mon, 12 Dec 2016 20:19:00 GMT

Source: Dram Shop Laws: Can I Sue a Bar After an Alcohol-Related Accident? | Nolo.com

The post Dram Shop Laws: Can I Sue a Bar After an Alcohol-Related Accident? | Nolo.com appeared first on Panter Law Firm, PLLC .

What should I look for before signing a lease?

Mon, 12 Dec 2016 15:52:00 GMT

Lease

You are about to sign a lease for property. Whether it is residential or commercial property, you should look for certain key provisions and be sure you understand them.

Term

The word “term” simply means how long the lease will be in effect. You want to know how long you have to keep leasing this property.

Generally speaking, commercial leases have a longer term than do residential leases. This is because both sides to a commercial agreement make long-term business decisions for the future.

People who sign residential leases, however, generally want to have more flexibility to move if their circumstances change.

You should give a lot of thought to what could change before you sign a long-term agreement.

Property description

The agreement needs to clearly describe the property in question. When you rent an apartment, a simple reference to the apartment number will be sufficient.

If you rent commercial space, it is advisable to attach a diagram of the space to the agreement to avoid any misunderstanding.

When you rent property including land, attach a detailed legal description or plat (another word for map).

Rents and charges

The agreement should set forth in plain language the amount of rent due each month. But, you should be on the lookout for other charges.

Some landlords will also charge for utilities, common area maintenance, taxes and insurance. You need to be certain you understand the total cost to you of renting the property.

Insurance

Most landlords will not take responsibility for the destruction or theft of your personal property that you maintain on the premises. You should purchase renters insurance to cover your property. This type of insurance is fairly inexpensive.

Use of the property

Most commercial leases contain a provision that places limits on what a tenant can do with the property. Before leasing property to operate a business, read the lease to be sure it permits your planned use of the property.

Residential leases can also contain restrictions on the use of the property, visitors, and similar matters. You should pay attention to this provision before signing the lease.

Maintenance

The law imposes certain obligations on the landlord to maintain the property. The landlord can, however, transfer some of these obligations to the tenant in a written lease.

You should determine whether, and to what extent, you have to maintain the property.

Renewal rights

If possible, you will want to include a provision that gives you the right to renew the lease after its initial term expires. Such a provision gives you flexibility to remain. At the same time, it does not commit you to remaining.

Termination

If the lease is not renewed, then it automatically terminates at the end of the initial term. You want to understand your obligations when that day comes.

Most leases will also give the landlord the right to terminate the lease early for different reasons. Read the document carefully to understand when and how the landlord can terminate the lease before the end of the term.

Before you sign a lease, you want to understand these essential terms. If you need advice, contact the Panter Law Firm at 601-6076-3156.

The post What should I look for before signing a lease? appeared first on Panter Law Firm, PLLC .

Does the other side have to pay my attorney’s fees?

Sun, 11 Dec 2016 23:09:00 GMT

Attorney Fees

You are a party to a lawsuit in Mississippi state court. You believe you will win, and you think the other side should pay your attorney’s fees. Are you correct?

Mississippi courts follow the “American rule.”

The American rule states that in most cases a party must pay his own lawyer, even if he wins the lawsuit.

The American rule, however, contains three general exceptions. The party who wins can recover attorney’s fees if:

In addition, Chancery Courts often award attorney’s fees in domestic cases.

Will the court award attorney’s fees in accident cases?

Many lawsuits involve a simple claim of negligence. For example, automobile accidents and slip and falls are usually based upon a claim of negligence. For those types of claims, the prevailing party will not receive an award of attorney’s fees.

What statutes provide for an award of attorney’s fees?

As mentioned above, some federal and Mississippi statutes provide for an award of attorney’s fees to the prevailing party. The statutes are too numerous to list here. Some examples, however, include:

Lawsuits can be expensive. If you believe you will become a party to a lawsuit, call the Panter Law Firm to see if an award of attorney’s fees is available. 601-607-3156

The post Does the other side have to pay my attorney’s fees? appeared first on Panter Law Firm, PLLC .

Can I get out of my non-compete agreement?

Fri, 09 Dec 2016 15:45:00 GMT

Non-Compete Agreement

You signed a non-compete agreement with your employer. Now, you want to go to work somewhere else. What are your options?

Mississippi courts disfavor non-compete agreements. The courts prefer a free marketplace. They want people to be able to change jobs and compete.

The courts will, however, enforce such an agreement when it is reasonable in scope and duration.

A reasonable scope and duration vary depending upon the circumstances.

The term “scope” means two things.

The first is the geographic area described in the agreement. For example, “the entire state of Mississippi” describes a geographic area.

The second is the conduct the agreement prohibits, such as “anything to do with the insurance business.”

The term “duration” simply means how long the agreement remains in effect.

In Mississippi, non-competition agreements must meet two tests. First, the scope and duration must be reasonably necessary for the protection of the employer. Second, the agreement cannot impose undue hardship on the employee.

This rule requires the court to perform a balancing test.

How can I determine if my non-compete agreement is valid?

There is no single test that determines the validity of the agreement. The following factors, however, will come into play:

Also, read here about non-solicitation agreements.

If you have a non-compete agreement and/or non-solicitation agreement and want to change jobs, contact the Panter Law Firm for a consultation. 601-607-3156

The post Can I get out of my non-compete agreement? appeared first on Panter Law Firm, PLLC .

Strip Club Must Pay $10.5M in Monster Truck Death | NBC 5 Dallas-Fort Worth

Thu, 08 Dec 2016 16:44:00 GMT

Source: Strip Club Must Pay $10.5M in Monster Truck Death | NBC 5 Dallas-Fort Worth

The post Strip Club Must Pay $10.5M in Monster Truck Death | NBC 5 Dallas-Fort Worth appeared first on Panter Law Firm, PLLC .

Somebody sued me. Should I ask for Moeller counsel?

Thu, 08 Dec 2016 16:39:00 GMT

Moeller counsel

An earlier post explains the meaning of a “reservation of rights” letter. As that post explains, if you receive such a letter, the insurance company must allow you to find your own independent lawyer. That lawyer will serve as Moeller counsel.

Why is the lawyer call Moeller counsel?

The name comes from the Mississippi Supreme Court case Moeller v. American Guarantee and Liability Insurance Company .

In that case, the insurance company hired a lawyer to defend its insured. At the same time, the insurance company sent the insured a reservation of rights letter.

The Supreme Court ruled that the reservation of rights letters imposed a “special obligation” on the insurance company. This was because the letter created a conflict of interest between the insurance company and the insured.

What is the conflict?

In the Moeller case, the Mississippi Supreme Court gave three examples of this conflict:

First, if the insurance company thinks there will be no coverage, it might not pay the lawyer to work hard to defend the insured.

Second, if some of the plaintiff’s claims are not covered by the policy, the insurance company might steer the plaintiff’s attention to the uninsured claims.

Third, the lawyer hired by the insurance company must report on the progress of the case. This creates a risk that the lawyer might disclose confidential or privileged information that the insurance company could use later to deny coverage.

What does the insurance company have to do about the conflict?

The insurance company must allow the insured to hire an independent lawyer. This lawyer will report only to the insured. The insurance company also has to pay the legal fees of the Moeller counsel.

If your insurance company sent you a reservation of rights letter, contact the Panter Law Firm for a consultation about your rights. 601-607-3156

The post Somebody sued me. Should I ask for Moeller counsel? appeared first on Panter Law Firm, PLLC .

You received a reservation of rights letter from your insurance company. What does it mean?

Wed, 07 Dec 2016 17:00:00 GMT

Reservation of Rights Letter

Someone has filed a lawsuit against you or your business. You have a liability policy, so you notified your insurance company.

Then, the company sends you a letter. It states that they will pay a lawyer to defend you but that the company is “reserving its rights.” What does that mean?

The insurance company’s duty to defend and indemnify

In Mississippi, a company selling liability insurance owes the insured two distinct duties. Those duties are:

● To defend

● To indemnify

The “duty to defend” means the insurer must hire a lawyer to defend you in court. In most instances, the company decides which lawyer to hire.

The duty to indemnify means that if you have a judgment entered against you, the insurance company must pay that judgment (up to the policy limits).

Of course, if someone is suing you for something not covered by your policy, the insurance company does not owe you a duty to defend or indemnify.

So why is the company reserving its rights?

In Mississippi, the duty to defend it is broader than the duty to indemnify. If it is possible that the claim might be covered by the policy, the insurer company must defend you.

Later, after more facts come out, it may be that the claim was not covered by the policy after all. Therefore, the insurance company would have no duty to indemnify.

Here is an example.

Assume somebody sues you for causing an accident. The plaintiff alleges in the complaint that you either negligently or intentionally caused the accident.

Also, assume your policy covers you for negligent acts but not intentional acts. The insurance company must defend you because it is possible you were not at fault or were only negligent.

But if, at the end of the case, the court decides you acted intentionally, the insurance company will deny any obligation to pay the judgment.

So, in a reservation of rights letter, the insurance company maintains the right at the end of the case to declare that the judgment is not covered.

There is some good news here.

In Mississippi, when an insured receives a reservation of rights letter, the insured may be able to hire its own independent lawyer. Also, the insurance company may have to pay for the second lawyer as well.

This second lawyer is called “Moeller counsel.” That lawyer’s job is to look out specifically for your interest without regard to the interest of the insurance company. (Read more about Moeller counsel here .)

If you received a reservation of rights letter, contact the Panter Law Firm to see if you are entitled to Moeller counsel. 601-607-3156

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

Craig Painter

The post You received a reservation of rights letter from your insurance company. What does it mean? appeared first on Panter Law Firm, PLLC .

Should I form a limited liability company (LLC)?

Tue, 06 Dec 2016 16:48:00 GMT

Small Business LLC

You are running a small business without having formed a corporation or other business entity. Someone has suggested that you operate your business in the form of a limited liability company (“LLC”). Should you follow their advice?

In most instances, the answer is “yes”. The purpose of an LLC is to limit the liability of the owner if the business gets sued.

In a sense, the LLC stands between you and those who might want to file a lawsuit. So, the party filing a lawsuit might be able to get to the assets of the company but not to your individual assets.

How do you set up a proper LLC?

The paperwork necessary to form an LLC is not very complicated. File a Certificate of Formation with the Mississippi Secretary of State, adopt an Operating Agreement, obtain a tax ID number, and you are off and running. (read more here about Operating Agreements)

Even so, I recommend that you hire an lawyer to assist you. You want to be sure that the paperwork is correct, of course, but you also want it to be tailored to meet your specific needs.

No all businesses are alike, of course. The nature of a business, or the ownership structure, often requires more that just a standard Operating Agreement that can be found on the internet.

Operating the LLC.

Next, you should follow “corporate formalities.” This includes:

● Holding an annual meeting of the owner or owners.

● Keeping minutes.

● Adopting resolutions when proper.

● Filing annual reports with the Secretary of State.

● Holding your business out as a limited liability company and not a sole proprietorship.

If you believe that the formation of a limited liability company is the right move for your business, can the Panter Law Firm at 601-607-3156, and we will walk you through the process.

The post Should I form a limited liability company (LLC)? appeared first on Panter Law Firm, PLLC .

What is tortious interference with contract?

Mon, 05 Dec 2016 17:20:00 GMT

Tortious Interference with Contract

You may have heard the words “tortious interference with contract.” It means a wrongful act of a third party that interferes with a contract between two other parties.

Here is an example. Assume there is a contract between John and William. Under this contract, John agrees to pay William $1000 a month to manage John’s rental properties.

Along comes Mary, and she encourages John to terminate his contract with William. Can William sue Mary for tortious interference with the contract?

To answer this question, we must know if Mary’s conduct is “wrongful” in the eyes of the law.

Not every interference with the contract between two persons is wrongful. For example, if Mary is also in the business of managing rental properties, she can compete with William in the marketplace.

There is nothing wrongful with Mary asking John for his business, even if it means William loses that business.

In addition, some persons have a privilege to interfere with the contract between two others. The workplace is a good example of this.

You may have an employment contract with a company. Most likely, your supervisor will a privilege of deciding whether to terminate the employment contract.

What does a plaintiff have to prove to bring a claim?

To determine whether interference by third party is “wrongful”, you must look at that person’s motive.

In Mississippi, to succeed on a tortious interference with contract claim, a plaintiff must show all of the following:

● The third party’s actions were willful and intentional.

● Those actions were calculated to cause damage to the plaintiff’s contract rights.

● The third party’s purpose was neither right nor justifiable.

● The third party succeeded in causing damage to the plaintiff.

If you believe someone has tortiously interfered with one of your contracts, call the Panter Law Firm at 601-607-3156 for a consultation.

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What is the difference between mediation and arbitration?

Mon, 05 Dec 2016 17:06:00 GMT

Mediation and Arbitration

Mediation and arbitration are both ways of resolving a dispute out-of-court. Yet, they work in very different ways.

Let us start with mediation.

Often, mediation is a voluntary process, meaning both sides to a dispute agree to go to a mediation. In addition, courts often order parties in a lawsuit to try mediation before going to trial.

When parties go to mediation, the lawyers for each side will agree upon a person to serve as a mediator. The mediator is usually a lawyer or a retired judge.

The mediator does not decide who should win or lose. Instead, the mediator will attempt to help the parties find common ground and enter into a settlement.

A mediator cannot force the parties to settle. That decision belongs to the parties.

Usually, the mediator will meet with the parties and their lawyers in the same room. The mediator will explain the purpose of mediation and the mediator’s role.

At that point, the mediator will ask one side to leave and go into a separate room. The mediator will then begin meeting alone with each side to discuss the case.

The mediator will talk about weaknesses in your case. You may get the feeling that the mediator is taking the other party’s side. That is not the case. You can be sure the mediator does the same thing to the other side.

If the parties agree to settle, a simple settlement agreement is drawn up and signed by the parties.

Click here for the Mississippi rules of mediation.

How does arbitration differ?

Sometimes, parties will agree to voluntarily arbitrate their differences after the dispute arises.

In most instances, however, arbitration occurs because the parties previously entered into a contract and agreed to arbitrate if a dispute later arises.

The person selected as an arbitrator acts like a judge. Unlike a mediator, the arbitrator’s role is to make rulings and decide who wins.

Arbitration proceeds in a matter similar to being in court. When the case goes to trial, each side will call witnesses and put on other evidence. After that, the arbitrator will issue a written decision and announce the winner.

The ruling of the arbitrator is final. The decision of the arbitrator cannot be appealed except for very limited reasons.

Click here to examine the rules of the American Arbitration Association.

If you need assistance in a mediation or arbitration, call the Panter Law Firm at 601-607-3156.

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What is the difference between a quitclaim deed and warranty deed?

Sat, 03 Dec 2016 21:30:00 GMT

Quitclaim deed and warranty deed

As we all know, a deed filed in the land records documents the ownership of property.

In Mississippi, there are several types of deeds. You should understand the differences between them and whether they favor the buyer or the seller.

The quitclaim deed

The most seller-friendly is the quitclaim deed. When a seller quitclaims land to a buyer, the seller is not making any representations as to whether the title is good. In fact, the seller is not even representing that he or she owns any interest in the land.

Instead, the seller is simply saying “whatever interest I have in this land, if any at all, I am giving to the buyer.”

Because a quitclaim deed does not assure the buyer that the title to the land is good, a buyer should only accept one in limited circumstances.

The warranty deed

This is the most common type of deed. When a seller gives a buyer a warranty deed, the seller is promising all of the following to the buyer:

If the seller breaches one or more of these warranties, the buyer may file suit against the seller for any damages that result. This is the most buyer-friendly type of deed.

The special warranty deed

This is similar to a warranty deed except the seller is only promising the buyer that neither the seller or anyone else who claims to have acquired an interest in the land from the seller will disturb the buyer’s use and ownership.

Special warranty deeds are often used by banks that have foreclosed on property. This is because banks do not want to warrant the title of the land prior to the time the bank acquired it. A buyer should pay to have the title to the land checked before accepting that type of deed.

Special considerations for land owned by two or more parties

It is common for land to be owned by more than one person. There are several different types of ownership, but the two most common are:

Tenants in common are said to each own an undivided interest in the land. For example, if two persons own land, each is said to own a 50% interest in the whole parcel.

When property is deeded to two or more persons, there is a presumption that they are tenants in common. To overcome the presumption, specific language should be put into the deed stating that the owners “are joint tenants with full rights of survivorship and not tenants in common.”

Why does it make a difference?

When property is owned by tenants in common, when one of them passes away, his interest in the land passes to his heirs.

On the other hand, when the owners are joint tenants with full rights of survivorship, when one passes away his interest in the land passes to the other owner. You will see spouses usually own property as joint tenants.

If you have a question about how to structure your land ownership, call the Panter Law Firm for a consultation. 601-607-3156

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You are being sued by a bank for a deficiency judgment. What can you do?

Fri, 02 Dec 2016 17:03:00 GMT

deficiency judgment

You fell behind on your mortgage payments. The bank foreclosed on your home and bought it at foreclosure.

Now, the bank has filed a lawsuit against you, claiming you still owe money. What are your options?

The bank’s claim is called a lawsuit for a deficiency judgment. The bank is saying that the price it bid at foreclosure was not enough to fully repay your loan.

There are two important rules that apply to this situation. Sometimes lenders, and even judges, get them confused. But, they are very different. Let us look at each of them.

Rule No. 1 – if the bank bids on the property at foreclosure, it does not have to bid the full value of the property.

When a bank forecloses on property, it is common for the bank to purchase the property itself at foreclosure. The bank makes what is known as a “credit bid.”

Here is an example. The homeowner owes the bank $100,000 on the mortgage. The house has appraised recently for $100,000. At foreclosure, the highest bid comes from the bank, and it is for $85,000.

The bank does not actually pay itself $85,000. Instead, it gives the homeowner an $85,000 credit on the amount of the loan. Then the bank claims that $15,000 is still owed by the homeowner.

Note: In Mississippi, there is no requirement that the bank bid an amount that equals the value of the property. The courts will not set aside a foreclosure for an inadequate bid unless it is so low that it “shocks the conscience of the court.”

Foreclosures have been upheld when the bid price was as low as 40% of the value of the property. So, a bid of 85% of the value of the home is adequate.

Rule No. 2: The bank has to give you credit for the full value of the property, regardless of how much the bank bid.

Continuing with our example, the bank then sues the homeowner for a $15,000 deficiency judgment. This is where the second rule comes into play.

Although the law does not require the bank to make a credit bid for the full value of the home at foreclosure, the bank is still required to give the homeowner credit for the full value of the home at the time of foreclosure.

So, in our example, the homeowner would defend the lawsuit by insisting that the bank apply the full value of the home ($100,000) to the amount of the loan ($100,000). If successful, the homeowner would owe nothing.

Also, note that the same rules apply to foreclosures on commercial buildings.

If you are facing a lawsuit by bank for a deficiency judgment, do not immediately assume that you still owe the money. Call the Panter Law Firm at 601-607-3156 for a consultation.

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Can my spouse sell our home without my permission?

Thu, 01 Dec 2016 23:08:00 GMT

Home

One spouse trying to sell the family home without consent of the other

I see this question a lot. Sometimes both spouses own a home and the deed lists both as owners. Other times, only one spouse owns the house.

In either instance, the answer is “no”. One spouse cannot sell the couple’s residence without the consent of the other.

Does it matter what the deed says?

If both spouses are on the deed, then the simple fact that they are joint owners means both have to consent to the sale.

But, if only one spouse owns the house, the other spouse is still protected by Mississippi’s homestead law.

Long ago, it was common for the husband to own the house and land but not the wife. To protect the wife, Mississippi passed a law that required the wife to agree to the sale before the husband could sell the property.

This right is called a “homestead right.” It effectively gave the wife a veto power over any effort of the husband to sell the home or to put a mortgage on the home.

A spouse has a homestead right if the property is the primary residence of a couple. (There are also some exceptions, such as one having wrongfully forced the other to leave.)

Who has a homestead right today?

Today, the right is available to both a husband and wife. Both have to sign any deed or mortgage on their home, regardless of whether both are legal owners.

If you have a problem with your spouse trying to sell your residence, call the Panter Law Firm for a consultation. 601-607-3156

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Understanding easements for real property.

Wed, 30 Nov 2016 17:15:00 GMT

Easement over land

A property owner frequently gives or receives an easement in connection with his land. There are several types of easements, and it is useful to understand the differences.

An easement should be examined in two ways. First, what is the purpose of the easement? Second, how can the easement be obtained?

Let us look at the more common forms.

The Utility easement .

This is the most common one, and it is created by agreement of the parties. Because just about everyone needs utilities, almost all land is subject to some type of utility easement.

The easement may be for electricity, gas, water, cable, or other services. Usually, these run along the edge of the property so as to limit interference with the use of the land.

Most utility easements are non-exclusive. This means that the landowner can still use the land that is subject to the easement as long as he does not interfere with the utilities.

These are almost always drafted by the utility company for the landowner to sign and are recorded in the land records.

Access easements.

Agreements for ingress and egress ( i.e. , the coming and going of vehicular and foot traffic over the landowner’s property) is another common form of easement.

These easements are also usually non-exclusive. This allows someone to travel over the land but allows the landowner to use that area as well. But, they can take other forms depending upon the needs of the parties.

These agreements are drafted by one of the parties or their attorneys for the landowner to sign. They are then filed in the land records.

Prescription easements

An easement by prescription is similar to the concept of adverse possession.

For example, assume a person regularly travels across land for 10 years without the express permission of the landowner. If that person otherwise meets all of the elements of adverse possession (read here ), then that person may have obtained an easement by prescription and the right to continue traveling across the land.

But, because there is no written agreement with the landowner, usually a court will have to declare the legal existence of the easement.

(For more on prescriptive easements, read the decision of the Mississippi Court of Appeals in Thornton v. Purvis , No. 20180928, April 13, 2020.)

Easement by necessity.

This is probably the least common type. It is an easement the law will create because a person needs it to be able to properly use his land.

Here is an example. Assume a landowner owns 20 acres and there is only one road giving access to the land.

Next, assume the landowner divides the property into two 10 acre sections. He sells the section with the road to Party A. Next, he sells the other section to Party B.

In this situation, Party B cannot access his 10 acres without crossing over the land of Party A.

The law states that Party A must allow Party B to use as much of Party A’s land as is reasonable and necessary for Party B to have ingress and egress to his own land.

Again, this is one that the courts will have to recognize if Party A disputes the easement.

If you purchase land, be sure to ask the seller if he owns any adjacent land that might give rise to an easement by necessity over your land.

“Private eminent domain”*

What if you are landlocked but cannot obtain an easement by necessity because your land did not come out of a larger tract as described in the preceding section of this post? In that situation, Section 65-7-201 of the Mississippi Code may provide relief.

Section 65-7-201 states, in part:

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use.

The statute does not require proof that such a road be absolutely necessary, abut only reasonably necessary.

Also, once the lack of access has been established, the petitioner must show that it has attempted to obtain access through its own private efforts before petitioning the special court to redistribute private property. Petitioners must make good-faith efforts to purchase rights-of-way from their neighbors before coming to the court system.

Note that if you file such a petition and win, you will have to pay the other property owner damages for the loss of land, as well as his costs and expenses.

*Name courtesy of Kevin Null, Esq.

If you have a question about easements, call the Panter Law Firm at 601-607-3156 for a consultation.

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Hurt by a drunk driver, who can be held responsible?

Wed, 30 Nov 2016 16:36:00 GMT

Hurt by a drunk driver

An injured person can certainly sue the drunk driver who causes an accident. But, the company or person who provided the alcohol may also have liability.

Mississippi heavily regulates the sale of beverages containing alcohol. To sell alcohol, a person or business must hold a license from state.

These licenses come with important limitations. For example, a seller may not sell, give or furnish alcoholic beverages to any person who is:

• visibly or noticeably intoxicated

• under the age of 21.

• a “habitual drunkard.”

What happens if a seller violates the law?

Assume a seller violates these rules and the person who received the unlawful alcohol becomes drunk and causes an accident.

In that instance, the injured party may sue the seller (in addition to suing the intoxicated person who caused the accident). This is called “dram shop liability.”

What if the alcohol is given away, like kids getting drunk at a party?

Mississippi has a law governing social hosts and minors. A social host is someone who allows others to come under their property to attend a party. As few as two people can be a “party”.

The law makes it illegal for an adult who owns or leases private property to allow a party to:

(i) take place or

(ii) continue

if the adult becomes aware that a minor at the party obtains, possesses or consumes any beverage containing alcohol.

The statute does not specifically say the injured person can sue the landowner. Mississippi courts would, however, probably recognize such a right.

If you injured in an accident caused by drunk driver, get as much information as possible as to where and how that person became intoxicated.

If you have been injured by a drunk driver, call the Panter Law Firm at 601-607-3156 for a consultation.

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What does “harassment” in the workplace really mean?

Tue, 29 Nov 2016 23:16:00 GMT

Harassment in the workplace

A federal law called Title VII prohibits certain forms of harassment in the workplace. The Equal Employment Opportunity Commission investigates these charges brought by an employee.

Title VII applies to companies with 15 or more employees measured over a certain period of time.

What is “harassment” within the meaning of the law?

Pursuant to Title VII, the term has a narrower meaning than is used in everyday conversation. We often think of it as conduct that disturbs or irritates the person on the receiving end.

Under Title VII, however, it is not enough that your supervisor is difficult, overbearing, or demanding. Instead, to violate Title VII, the conduct in question must be severe and persistent. It must create a work environment that a reasonable person would consider intimidating, hostile or abusive.

What else does an employee have to prove.

The employee must also prove the misconduct is taking place because of the employee’s race, color, religion, gender, or natural origin. Put another way, you will need evidence the harasser has singled you out because you have one of those protected characteristics.

There are additional matters to consider before a lawyer can say whether you have a valid claim for harassment in the workplace.

Also, read here for a detailed discussion of sexual harassment.

If you believe you have been the victim of unlawful workplace harassment, call the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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Do I have an invasion of privacy claim?

Tue, 29 Nov 2016 16:30:00 GMT

Invasion of privacy

Congress and the Mississippi Legislature have passed many laws to prevent invasion of privacy. These include wrongfully intercepting phone calls, hacking into email, and similar interference with digital information.

At the same time, Mississippi has long-recognized common law claims (i.e., court-made law) for invasion of privacy. This body of law precedes the internet, computers and cell phones.

Mississippi common law recognizes four types of invasion of privacy claims.

Wrongful invasion of privacy can cause a person to suffer emotionally and financially. If you are the victim of such an invasion, be aware that Mississippi places strict limitations on how long you have to file suit.

If your privacy has been wrongfully invaded, call the Panter Law Firm at 601-607-3156 for a consultation.

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Race Discrimination in the workplace – Two ways to assert the claim.

Mon, 28 Nov 2016 17:35:00 GMT

Discrimination in the workplace

Title VII prohibits race discrimination in the workplace. The law requires that an employee first file a charge with the EEOC before going to court. (Click here for information on how to file a charge with the EEOC.)

Generally speaking, Title VII requires that the charge be filed with the EEOC within 180 days after the discriminatory act took place.

In addition, after the EEOC issues a “right to sue” letter, the employee must commence a lawsuit within 90 days.

What other options are available?

Another way to pursue such a claim is pursuant to Section 1981. This is also a federal law.

Section 1981 provides a significantly longer deadline for filing a lawsuit. If Title VII bars a claim due to the passage of time, the claim may still be timely under Section 1981.

It is not necessary to file a charge with the EEOC before going to court on a Section 1981 claim.

Can an employee file suit under both laws?

Yes, but the employee must first proceed through the EEOC on the Title VII claim before filing a lawsuit.

If you have been discriminated against in the workplace and are considering a lawsuit, call the Panter Law Firm at 601-607-3156 to ask about your options.

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What is the legal rate of interest?

Tue, 22 Nov 2016 22:59:00 GMT

Legal rate of interest

In Mississippi, the legal rate of interest is 8% per year, compounded annually

That sounds like it is illegal to charge a higher rate. But, that really is not the case.

What the phrase really means is that 8% is the rate the law allows if the parties did not agree to something different. So, for example, if your loan document does not state the rate of interest, the law presumes it is 8%. The same applies to obligations to repay money, even if there is nothing in writing.

So how do many lenders charge more than 8%?

Charging a rate higher than the law allows is called usury. Mississippi has laws that were originally intended to protect borrowers from usury. The sad fact is today these laws provide little protection to borrowers.

This is because the Mississippi Legislature created a broad exception to the usury laws. It is now legal for any borrower to agree in writing to any annual rate if the original loan exceeds $2000.

So, as the saying goes, read the fine print carefully. It is possible for a borrower to end up paying more interest than the amount of the loan.

Read here for interest rates on car and truck loans.

If you have a question about the interest you are being charged, or that you want to charge someone else, call us at 601-607-3156.

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Do I need a written contract?

Tue, 22 Nov 2016 22:31:00 GMT

Do I need a written contract

This question should be examined in two ways. First, does the law require that the agreement in question be put into writing in order to be enforceable? Second, as a practical matter, should you put the agreement in writing to protect yourself down the road should the other party fail to perform?

In Mississippi, there are many types of oral agreements that the courts will enforce. The Mississippi Supreme Court has said that, generally speaking, oral agreements are just as enforceable as written agreements.

Which contracts have to be in writing?

There are, however, a number of agreements that the courts will not enforce unless they are in writing. Some examples are:

If the law does not require a written contract, should I get one anyway?

It is always a good idea to put your agreements in writing and have each party sign the document. There are three benefits to this.

First, having it in writing can eliminate misunderstandings between the parties as to the exact terms of the deal. Second, a person who knows he or she has signed the document is less likely to breach the agreement or try to back out of the deal. Third, should the other party fail to perform, it is far easier to enforce a written agreement in court than an oral agreement.

The last of these is particularly important. Under Mississippi law, a judge can make a decision early on about the meaning and enforcement of the contract.

But, the question of whether an oral agreement was actually made is something a jury has to decide. This means you may have to incur substantial expense in taking a lawsuit all the way through trial.

What if I cannot afford an attorney?

First of all, do not make that assumption. Some contracts are simple enough that a few hundred dollars can secure good legal advice. If you are in doubt, simply ask a lawyer.

If the transaction in question is small without a lot being at risk, so that it is not economically feasible to pay a lawyer to draft even a simple, you can nevertheless outline the basic terms on a sheet of paper and have all parties sign it.

When the stakes are higher, however, so that you may be exposed to substantial risk if the other party does not perform, you should speak with an lawyer about preparing a contract that will provide you with maximum protection.

If you need a written contract, call the Panter Law Firm at 601-607-3156 and let us assist you.