Monthly Archives: February 2015

Implied Covenant of Good Faith and Fair Dealing in Mississippi

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All contracts carry what is known as “an implied covenant of good faith and fair dealing.  Good faith is described as “the faithfulness of an agreed purpose between two parties, 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”. Restatement (Second) of Contracts Sec. 205, 100 (1979).

If one party breaches the implied duty of good faith, the court may impose a remedy against the breaching party.  What remedy is ordered depends entirely on the circumstances.

Fraud in the Inducement in Mississippi

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A contract for services or property may be voided if a Court finds there was “fraud in the inducement”.  In the Mississippi case of Great Southern Nat. Bank v. McCullough Environmental Services Inc., the Supreme Court held that “fraud in the inducement may arise when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract. Contracts entered under such circumstances are voidable by the innocent party; however, the innocent party must first establish the presence of the misrepresentation or fraud alleged, which requires proving, by clear and convincing evidence, the following elements:

(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the matter reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; (9) his consequent and proximate” injury.
McCullough Environmental Services Inc., 595 So.2d 1282, 1289 (Miss.1992) (citing Johnson v. Brewer, 427 So.2d 118, 121 (Miss.1983)).

The party alleging fraud must establish through clear and convincing evidence each of the above elements.  Whether the elements are present is a question of fact for the determination by a jury.

Specific Performance in Mississippi

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In Mississippi, specific performance is an equitable remedy available in breach of contract actions.  The remedy is one of equity and is awarded in Chancery Court.  In the Mississippi Supreme Court case of Lee v. Coahoma Opportunities, Inc., the Supreme Court held that  “A claim for specific performance as a remedy for breach of contract is within the equity jurisdiction of the chancery court.  485 So.2d 293, 294-95 (Miss.1986).  Specific performance is commonly awarded in controversies involving real estate sales.  For instance, if the seller in a sales contract fails to do or not to do something, and refuses to sell the property, the court could order the seller to sell the property as agreed to in the contract.  Conversely, if the buyer is in breach, he or she could be ordered to purchase the property in accordance with the terms of the contract.

Specific performance as remedy may not be available in other breach of contract actions.  If a party to a contract feels they have been wronged by the other party, they should contact an attorney to for a full understanding of the remedies available.

 

The Use of Medical Records in Personal Injury Cases

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In personal injury cases, the Plaintiff most prove that he or she suffered damages as a result of the defendant’s negligence.  Damages are most often proven through the use of medical bills as evidence at trial.  However, Mississippi courts require that the records be authenticated prior to being admitted as evidence.

Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or ” other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a ” written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11).  Rhoda v. Weathers, 87 So.3d 1036 (Miss. 2012)

A “written declaration” or “oath” from the records custodian may come in the form of an Affidavit signed and notarized.  Once the affidavit is determined to be sufficient, the records will be allowed into evidence.

Grand Jury Indictments in Mississippi

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If a Mississippi grand jury decides to indict a defendant, it is authorized to issue a “True Bill” upon a finding of probable cause that the defendant committed the crime. The indictment must identify the defendant, provide a concise statement of the facts sufficient to describe the elements of the crime charged, the jurisdiction of the court, the date of the offense and signature of the grand jury foreman and District Attorney.  Provided the defendant is on notice of the charge and its elements, the indictment is deemed sufficient. In practice, most indictments today list the Mississippi code section charged but this is not required by law. 

Sentencing of a Habitual Offender

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§ 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Grand larceny and the “intent to steal”

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If you are charged with grand larceny in Mississippi, the prosecution must show that the defendant had animus furandi or “intent to steal”.  To prove “animus furandi”, the prosecution needs to prove intent to deprive the owner of his property permanently, or an intent to deal with another’s property unlawfully in such a manner as to create an obviously unreasonable risk of permanent deprivation.  Thomas v. State 278 So.2d 469.

 

Forfeiture of property to the Mississippi Bureau of Narcotics

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Mississippi Code Ann 41-29-177 provides State of Mississippi law enforcement agencies with the authority to seize property under the Uniform Controlled Substances Law.  If property such as money, guns or automobiles are discovered during an arrest for drug related offenses, the State may petition the court for forfeiture.  The State must identify the items seized and file the petition within 30 days of seizure.

The record owners of any property seized may answer the Petition and demand the return of the seized property.  A hearing must be had wherein the party demanding the return must provide sufficient evidence that the items were not part of any drug related conspiracy.  It is often the case that the individual making a claim for return of the property was not arrested or involved in the illegal activity.  For instance, a person may have loaned their vehicle to someone without knowledge that the vehicle would be utilized for the transporting of drugs.  The record title owner of the vehicle would need to convince the court that he had no knowledge of such activity to prevail in court.

 

Determination of Heirs

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When a person dies without a will, his or her property will pass to known or unknown heirs through the laws of intestate succession.  Intestate succession is an operation of law in the following scenarios:

  1. Spouse and children. If the decedent has a spouse and children, the decedent’s assets are divided into equal shares for the spouse and the children.  The descendants of any deceased child inherit that child’s share.  If the decedent has a spouse but no children, the entire estate passes to the spouse.
  2. Parents, Siblings, and Descendants of Siblings. If the decedent has no spouse or children, his or her assets are distributed among his or her parents, siblings, or descendants of siblings.  Each parent or sibling is given one share of the decedent’s estate.  If any of the siblings predecease the decedent, that sibling’s share passes to his or her descendants.
  3. Grandparents, Uncles, and Aunts. If the decedent has no spouse, child, parents, siblings, or descendants of siblings, his estate passes to his grandparents, uncles, and aunts in equal shares.  Unlike the previous categories, the share of a deceased aunt or uncle does notpass to his or her descendants.
  4. Blood Relatives of Highest Degree. In the rare event that there are no individuals in any of the previous categories, the decedent’s assets are distributed in accordance with degrees of kinship as established by civil law.  This rather convoluted process involves going up the family tree to a common ancestor, then back down the tree to the descendants of that ancestor, counting degrees for each step in the ascending and descending family line.

Heirs who fit into any of the categories above must be identified and summoned to court for heirship determination.  Sometimes the identities are readily available, sometimes not.  Notice to unknown heirs is accomplished through the publication of Summons to appear at the determination hearing for a period of 90 days.  Those who appear will give testimony to the court as to their relation to the deceased.  The court will then make a final determination as to who will share in the decedent’s estate.

Administrating an Estate in Mississippi

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When a person dies without leaving a will, the heirs of the deceased may open what is known as an Administration Estate.   The administration estate provides for the orderly distribution of the decedent’s property.  Such distribution is made according to the Mississippi laws of intestate succession.

If the decedent has a spouse and children, the decedent’s assets are divided into equal shares among the spouse and the children.  The descendants of any deceased child inherit that child’s share.  If the decedent has a spouse but no children, the entire estate passes to the spouse.

By opening an administration estate, the administrator can facilitate the distribution of property to the rightful heirs.  The administrator first petitions the court where the decedent lived, or had property, to open an administration.  That court then issues Letters of Administration to the administrator granting that person the power to examine all assets and accounts of the deceased.

After all property has been inventoried, Notice of Creditors must be published for 90 days.  Additionally, a Petition to Determine Heirs may need to be filed to ensure all rightful heirs have been identified.  If after 90 days no creditors file a claim against the estate, the Administrator can file a Petition to Close Administration and Distribute Property to Heirs.

The foregoing summary presupposes a smooth process whereby all heirs are known and in agreement as to how the estate should be distributed.  However, many times the heirs are not all known or if they are, may not be in agreement.  Such a scenario would require a hearing before the court wherein a Judge would make the final determination as to heirs and property distribution