The standard of care of an agent has been described as ” a duty to use the degree of diligence and care which a reasonably prudent person would ordinarily exercise in the transaction of his own business….” More specifically, ” a business agent represents that he understands the usages of the business in which he is employed. One undertaking a matter involving special knowledge ordinarily thereby represents that he has the special knowledge required, and undertakes that, so far as it is necessary to keep in touch with events, he will do so.” Cavagnaro v. Coldwell Banker Alfonso Realty, Inc., 995 So.2d 754 (Miss.App. 2008)
Monthly Archives: May 2015
Real Estate Broker Standard of Care
Malicious Prosecution
In Mississippi, the elements of malicious prosecution are: (1) the institution of a criminal proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the prosecution. McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001). The plaintiff bears the burden of proving each ofthese elements by a preponderance of the evidence.
The fourth element, “Malice” refers to a prosecution initiated primarily for a purpose other than bringing the accused to justice. It refers to a criminal complainant’s objective in instituting the criminal proceedings, not his or her mindset. This element may be be proven by circumstantial evidence rather than direct evidence. The jury may infer malice from the facts of the case. Malice may also be inferred from the fact that a criminal complainant/defendant in the civil lawsuit may have acted with reckless disregard for the Plaintiff’s rights.
Malicious Prosecution–Elements
In Mississippi, the elements of malicious prosecution are: (1) the institution of a criminal proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the prosecution. McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001). The plaintiff bears the burden of proving each ofthese elements by a preponderance of the evidence.
Of particular importance is the probable cause determination. The court will analyze the facts reasonably available to the defendant at the time they initiated the malicious prosecution. Probable cause requires both a subjective element– an honest belief in the guilt of the person accused, and an objective element–reasonable grounds for that belief. The ultimate consideration by the court is whether the criminal complainant had probable cause to file the criminal complaint. Probable cause analysis is explained in The Law of Torts: “The existence of probable cause , which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court. That is to say, the court will determine whether upon the appearances presented to the defendant, a reasonable person would have instituted the proceeding”. W. Prosser & Keeton. The Law of Torts § 119 (5th Ed. 1984)
Requirements to Sentence a Defendant as a Habitual Offender
To sentence a defendant as a habitual offender, “[a]ll that is required is that the accused be properly indicted as an habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor’s proof.” Keys v. State, 549 So.2d 949, 951 (Miss.1989)
“As is” Clauses in Real Estate Contracts
In Mississippi, controlling case law provides that a mutually agreed upon as-is clause in real estate contracts exempts sellers from liability pertaining to the condition of the property. Moreover, the disclosure form is not a warranty. Although that form did not initially mention that the house had been moved, this fact was disclosed at closing and the buyers were given the opportunity to walk away and get their money back. Moreover, the buyer’s own witness testified that the defects were readily visible.
Although the buyers argued that when they learned of the problems at closing, they were essentially forced to go forward with the house purchase because of the money they had already expended and because they had nowhere else to go, the court found that they had no claim for economic duress: the seller didn’t threaten to do something she had no legal right to do; in fact, the seller offered to let the buyer out of the deal. No threat being present, the buyer’s claim was without merit.
Limitations on Malicious Arrest
Limitations for filing actions based on malicious prosecution are found in MS Code Ann 15-1-35:
All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.
Post-Conviction Relief Time Limitations
Time limitations for Post-Conviction relief are found in MS Code Ann 99-39-5(2):
A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
(a)
(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
§ 99-39-5. Grounds for relief; time limitations; “biological evidence” defined.
