Mississippi Business Litigation Blog : Mississippi Business Litigation Lawyer & Attorney : Jake Adams : Neese & Adams Law Firm

In Vineyard Investments, LLC, D/B/A The Wine Peddler v. City of Madison, NO. 2008-CA-00325-COA, the Court of Appeals ruled that the City of Madison did not have the discretion to deny a building permit  to the Wine Peddler, a package and liquor store, since all applicable building code requirements and zoning ordinances had been met.

The City of Madison argued that it could deny the building permit since the Wine Peddler did not have a package retailer's permit at the time it applied for the building permit and that this was a potential illegal act the City could stop under the authority of Miss. Code Ann. 17-1-19. 

However the Court of Appeals, in an opinion by Judge Donna Barnes, found the City of Madison's reasoning to be flawed:

The use of the building as a “wine and spirits” store was not unlawful; consequently, Mississippi Code Annotated section 17-1-19 would not apply. The City of Madison admitted at oral argument before this Court that no zoning prohibitions were in effect at the time of the denial of the permit. We agree that had Vineyard attempted to sell liquor from that location without the package retailer’s permit, an illegal act would have occurred. However, Vineyard gave no indication that it anticipated committing such an illegal act. Nor would it have been likely that Vineyard could have committed such an act, as alcohol sold in a package retail store must be purchased directly from the State Tax Commission. See Miss. Code Ann. § 67-1-41 (Supp. 2008).

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The Supreme Court's ruling in White v. Cooke et al. is a head scratcher.

White purchased some farm land at auction from Cooke. The property was listed to be sold "as-is" with no representations or warranties of any kind and subject to all easements of record.

White had the winning bid, and signed a contract to close within 30 days. But there were some discrepancies in the survey and some back-and-forth between White and Cooke. Meanwhile, Cooke sold an adjacent tract to Roberta Jamison-Ross and granted Ms. Jamison-Ross an easement across the tract under contract with White.

White sued for specific performance.

The Supreme Court, in an opinion written by Chief Justice Waller, upheld the Chancery Court and ruled that there was no meeting of the minds, and that due to a "mutual mistake" the contract between White and Cooke could be set aside.

Justice Dickenson wrote a rather strong dissent in a separate opinion:

The majority cites no authority to support the novel notion that a seller may contract to sell a parcel of property “as is,” “subject to easements of record,” and then – after contracting, but prior to closing – grant easements to third parties. Indeed, the majority’s failure to cite authority is not surprising, as I find such notion unsupported anywhere in the law.

This case is not about a mutual mistake of fact. A seller who advertises and sells property in its “as is” condition cannot back out of the deal because he later learns the property he contracted to sell has a road on it he thought was on another parcel he wants to sell to someone else. Stated another way: A person who wants to come back later and correct mistakes shouldn’t sell property “as is.” Cooke carefully placed everyone on notice that – regardless of what was in the brochure – the parcels were being sold “as is.” Then, after discovering that the “as is” was not as he thought it was (or wanted it to be), he claims mutual mistake of fact. I am quite surprised that the majority is persuaded by this specious
argument.

Maybe I'm missing something, but granting an easement across land under contract to a third party sounds problematic. 

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The Clarion Ledger's Jerry Mitchell reports that former Hinds County District Attorney Ed Peters has irrevocably surrendered his law license. Here's the story. Booneville attorney Joey Langston pleaded guilty to conspiring to bribe Hinds County Circuit Court Judge Bobby DeLaughter, and as part of that conspiracy Peters was used to influence Judge DeLaughter. 

The Daily Journal's Patsy R. Brumfield reports that Peters has been formally accused of conspiring to corrupt a sitting Mississippi Circuit Court Judge. Here's her article.

Alan Lange's Y'all Politics also has extensive coverage of the latest in what's being referred to as "Scruggs, II." Interestingly, Lange's post mentions that a Bar Complaint was filed against Peters nine months ago. 

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In Griffin v. Lea Brent Family Investments, L.P., the Court of Appeals ruled that Griffin did not nullify an easement by adverse possession when Brent, the owner of the easement moved to Colorado and, after returning to Mississippi, failed to complain after Griffin erected gates at both ends of the easement driveway. The law on adverse possession as contained in the opinion of Judge Virginia C. Carlton is as follows:

In order to prove title through adverse possession, the claimant must prove that possession was: (1)under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Rice v.Pritchard, 611 So. 2d 869, 871 (Miss. 1992) (citations omitted). To prevail on a claim of adverse possession, the claimant must prove every element by clear and convincing evidence. Buford, 832 So. 2d at 600 (¶15) (citation omitted).

The Court of Appeals further held that Brent Family Investments had not abandoned the easement: 

Evidence of abandonment must be “full and clear.” Columbus & Greenville Ry. Co. v. Dunn, 184 Miss. 706, 720, 185 So. 583, 586 (1939). “[T]here must be some clear and unmistakable affirmative act or series of acts indicating a purpose to repudiate ownership.” Id. “‘[P]rotracted non-use for an extended period of time” manifests a “‘presumption of abandonment.’” Bivens, 724 So. 2d at 461 (¶11) (quoting R&S Dev., Inc. v. Wilson, 534 So. 2d 1008, 1010 (Miss. 1988)). The presumption is stronger if an intent to abandon can be shown. Id. (citation omitted). 

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Booneville attorney Joey Langston was sentenced to serve 36-months in prison this morning. Here's the story from the Northeast Mississippi Daily Journal's Patsy R. Brumfield.

Langston must report to prison by 2 p.m. on January 15.

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 Incoming Supreme Court Justice Jim Kitchens is asking for donations to pay off his $300,000 campaign debt. According to this article by Jimmie E. Gates in the Clarion Ledger, Kitchens is getting help from independent lawyers among others.

Here's a snippet:

Kitchens spent more than a half-million dollars on his campaign to unseat Chief Justice Jim Smith in the November general election.

An e-mail letter sent out to lawyers by the president of the Mississippi Association for Justice, formerly the Mississippi Trial Lawyers Association, says Kitchens and his wife took out a personal loan and owe about $300,000.

"A campaign debt which if not satisfied within a few months will be theirs to bear alone," Gulfport attorney David Pitre said in the letter asking lawyers to participate in the volunteer phone bank fundraising effort today.

Although the letter has Pitre's name and his title as president of MAJ, trial lawyer officials said the organization isn't sponsoring the fundraiser.

Pitre said independent lawyers are coming together in the effort.

Kitchens was out of town Monday. His campaign manager, Sam Hall, said lawyers aren't the only ones who have been asked to help.

"There is no fundraiser," Hall said. "What we are having is normal campaign business."

Hall said the lawyers' effort or anyone else who contributed to Kitchens' campaign will have no influence on Kitchens' opinions on the court.

"He has never attended any fundraiser, and he has never seen any campaign contribution list," Hall said of Kitchens. "He's the most scrupulous person I know."

Common Cause of Mississippi Chairwoman Lynn Evans of Jackson said lawyers helping a judge retire debt is "just the reality of the system."

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The Clarion Ledger's Kevin Richard has an update on the progress of Secretary of State Delbert Hosemann's proposed business court.

Of note: 

The locations of the test program would be  the three metro-Jackson counties; the seven-county-area around Tupelo; and Harrison, Hancock and Stone counties on the Coast.

The test program will have three judges to be appointed by the chief justice. According to the article, the judges would be sitting or former judges.

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The Court of Appeals reversed a $500,000 default judgment because the service of the summons and complaint upon the out of state corporate defendant was accomplished by certified mail and the return receipt was signed by the mail clerk, not on an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process as per Rule 4(d)(4) of the Mississippi Rules of Civil Procedure. 

Click here to read the ruling from Flagstar Bank, FSB v. Calvin and Jamie Danos et al.

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Attorney General Jim Hood and the Public Service Commission continue to seek Entergy's records. Entergy still doesn't want to give them up. As you'll recall, Hood alleges that Entergy buys fuel and power from Entergy subsidiaries at a higher price than it could on the open market and then charges the higher costs to customers. Entergy at one time stated that the Public Service Commission should get the records, not the Attorney General. Last week, the Public Service Commission passed a resolution allowing Hood to have the records. Entergy is seeking a hearing before the PSC to contest the resolution.

The Public Service Commission was Entergy's defense. Now the PSC has told Entergy to give the records to Hood. So, now what? 

Cue the yelling.

Haley Fisackerly, president and CEO of Entergy Mississippi called Attorney General Jim Hood's charges "irresponsible, without merit, a waste of taxpayer money and harmful to the state's business reputation" according to this article in the Mississippi Business Journal Online. Is it me or does Fisackerly protesteth too much?

The Clarion Ledger's Jeff Ayers records more of the sparring between Fisackerly and Hood in this article.

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