Author Archives: Bill Kellum

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A valid Limited Liability Company must be registered with the State of Mississippi. Terminating its existence as a state-registered business entity begins with a formal process called “dissolution.”  To voluntarily dissolve your LLC, you first review the company’s formation documents–the certificate of formation and the operating agreement. Typically, one of those two documents will contain a section with rules pertaining to the dissolution of the company. In many operating agreements the provisions require a vote of the LLC members on a resolution to dissolve, and more specifically a requirement that a certain percentage of members vote in favor of the resolution.  Specific procedural requirements of the dissolution rules must be followed.  An example would be setting a specific time to meet and vote and giving advance notice to all members regarding the meeting.

If neither the certificate of formation or operating agreement address dissolution,  Mississippi’s Limited Liability Corporation Act provides a method by which to voluntarily dissolve an LLC. Under these rules, you must obtain the consent of all LLC members.  If you dissolve the LLC based on formation documents or by unanimous member consent, you must record the decision to approve the resolution in the official minutes of the dissolution meeting or on a written consent form.

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The Federal Rules of Criminal Procedure and specifically, Rule 11(e), provide for the concept of plea agreements. However, due to United States Sentencing Guideline provisions, prosecutors are restricted in what they may offer in a plea agreement. And as many federal offenses carry mandatory sentences, there may be no room for plea bargaining. Statutes codifying many federal offenses expressly prohibit the application of plea arrangements.

Federal criminal practice is governed by Title 18 of the U.S. Code, Part II (Criminal Procedure). Chapter 221 of Part II addresses arraignments, pleas, and trial. The U.S. Attorney’s Manual contains several provisions addressing plea agreements. Chapter 9-16.300 titled “Plea Agreements” provides that plea agreements should “honestly reflect the totality and seriousness of the defendant’s conduct,” and any deviation must be consistent with Sentencing Guideline provisions. Official policy of the The Justice Department requires stipulation only to those facts that accurately represent the defendant’s conduct. Plea agreements require the approval of the assistant attorney general if counts are being dismissed, if defendant companies are being promised no further prosecution, or if particular sentences are being recommended.

 

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In Mississippi, judges may grant what is known as a “continuance,” which is a temporary postponement of the trial or court hearing. Either the plaintiff or the defendant may request a continuance, but the Court may also issue a continuance without consulting with either party to a case.

Continuances may be requested when unforeseen events – such as illness or scheduling conflicts – arise but may be granted if a recently retained attorney needs additional time to prepare.  The judge considers the grounds for requesting the continuance, and determines whether there is a valid reason for postponing the case. A judge will usually permit a continuance if it is necessary to preserve the rights of each party to a case, and to prevent a miscarriage of justice. Before issuing a continuance, a judge may evaluate your reason for requesting a continuance, whether you’ve made a good-faith effort to avoid delaying the case, and whether a continuance will prejudice either party in the case.

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§ 97-3-53. Kidnapping; punishment.

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any vulnerable person as defined in Section 43-47-5 or any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.

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§ 97-23-3. Advertising; untrue, deceptive, or misleading.

Any person who, with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, directly or indirectly, to the public for sale or distribution, or who, with intent to increase the consumption of or demand for such merchandise, securities, service or other thing, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated or placed before the public within the state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or by a label affixed to the merchandise or its container, or in any other way, an advertisement of any sort regarding merchandise, securities, service or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, including but not limited to representing himself as selling at wholesale unless he is actually selling at wholesale those items so represented, and which such person knew, or might on reasonable investigation have ascertained to be untrue, deceptive or misleading, shall be punished by a fine of not more than five hundred dollars ($ 500.00), and the offending person, whether found guilty or not, may be held civilly responsible in tort for damages to persons or property proximately resulting from a violation of this section. This section shall not apply to any owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or to any agent of the advertiser who in good faith and without knowledge of the falsity or deceptive character thereof publishes, causes to be published, or participates in the publication of such advertisement. Firms with the word “wholesale” in their corporate title are not in violation of this section so long as they identify the sales as being made by their retail division.

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One ground upon which a lawsuit may be dimissed is that of forum non conveniens.  A defendant may present arguments that the venue in which the lawsuit was filed is improper due to lack of access to witnesses and evidence.  In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(i) Relative ease of access to sources of proof;

(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;

(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his remedy;

(v) Administrative difficulties for the forum courts;

(vi) Existence of local interests in deciding the case at home; and

(vii) The traditional deference given to a plaintiff’s choice of forum. Alston v. Pope, 112 So.3d 422 (Miss. 2013)    Miss.Code Ann. § 11-11-3(4)(a) (Rev.2004).

 

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When bringing an action against a party, an important consideration is where to file the lawsuit.  A lawsuit will only be heard if it has been filed in the proper venue, or county.

Mississippi statute regarding proper venue provides that “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant [1] resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”  Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev.2004).  In interpreting the venue statute, Mississippi Courts “specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Hedgepeth v. Johnson, 975 So.2d 235 (Miss. 2008) citing Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss. 2007).

 

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§ 97-35-7. Disorderly conduct; failure to comply with requests or commands of law enforcement officers; penalties; exception.

1) Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to:
(a) Move or absent himself and any vehicle or object subject to his control from the immediate vicinity where the request, command or order is given, or
(b) Arise, if lying or sitting down, and move to a point designated by said officer outside the immediate area of, or which is affected by the occurrences at, the place of issuing such order, command or request, or
(c) Refrain from lying down or sitting down at, or in the immediate vicinity of, the place where said order, request or command is given, or
(d) Refrain from obstructing, with his body or any part thereof, or in any manner, the lawful movement or passage of any vehicle, or
(e) Refrain from placing, or permitting, or cooperating with another to place, his body or any part thereof, in front of or behind any vehicle, in such manner as to interfere with, or prevent its movement or block its path in lawful movement, or
(f) Refrain from chaining or tying or binding himself or another to any object or person, or
(g) Unbind, unchain or loosen himself, or remove himself, from any chain or other means whereby he may be prevented from moving away from the place or the immediate vicinity where he may be when such officer issues said order, request or command, or
(h) Walk or move to, enter and remain in, either or both, as may be directed by such officer, any police or other vehicle operated by any law enforcement officer or department, or any other vehicle designated by such an officer, or
(i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct, which is made a misdemeanor and, upon conviction thereof, such person or persons shall be punished by a fine of not more than Five Hundred Dollars ($ 500.00) or imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.

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In Mississippi, the statute of limitation deadline to sue an attorney for malpractice is three years.  Mississippi’s general three year statute of limitations deadline is applicable to legal malpractice cases. This imposes a three year deadline on suing the attorney from the date of the malpractice.  Mississippi courts recognize the discovery rule in malpractice cases.

In the case of Smith v. Sneed, the Mississippi Supreme Court held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer”. 638 So. 2d 1252 (Miss. 1994).

In the case of Channel v. Loyacono, the Mississippi Supreme Court held that “the discovery rule is to be applied when the ‘plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question’ or it may be applied ‘when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act” 954 So. 2d 415 (Miss. 2007).

In other words, a client who learns of the attorney’s malpractice should file suit within three yearsfrom the time of the discovery to preserve a claim.

 

 

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Miss Code Ann § 97-41-1 Provides:

Except as otherwise provided in Section 97-41-16 for a dog or cat, if any person shall intentionally or with criminal negligence override, overdrive, overload, torture, torment, unjustifiably injure, deprive of necessary sustenance, food, or drink; or cruelly beat or needlessly mutilate; or cause or procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented, or deprived of necessary sustenance, food or drink; or to be cruelly beaten or needlessly mutilated or killed, any living creature, every such offender shall, for every offense, be guilty of a misdemeanor.