MSSC roundup

The Mississippi Supreme Court had a busy day yesterday.

Hall v. The City of Ridgeland -- Ridgeland's silly variance allowing a 13-story office tower has been affirmed. The words "spot zoning" make an appearance, but only so that the Court can pooh-pooh the idea that a city "spot zones" where it acts in accord with its "comprehensive plan." Evidently, the City of Jackson needed a "comprehensive plan" facilitating the eating of lunch. ... Penned by the new nominee to the Fifth Circuit Court of Appeals, James E. Graves.

Meadows v. Blake -- Substantively uninteresting: plaintiff didn't file an 11-1-58 motion to dismiss, but the defendants litigated for 2 years before moving to dismiss, and thus waived the issue. Procedurally odd: Waller specially concurs to explain why Blake and Baptist Medical Center, although raising the issue in their answers, waived the issue:

Thus, the defendants knew as early as December 10, 2004, that the application of Section 11-1-58 would serve to terminate the Meadowses’ case. And there was absolutely nothing preventing the defendants from pursuing the enforcement of Section 11-1-58 and achieving that termination by requesting a hearing on their motion to dismiss. Therefore, because they continued to participate actively in the litigation for more than two years, while sitting on their Section 11-1-58 defense, the defendants waived it.

Okay. This op is joined by 5 justices, including Justice Carlson ... who wrote the Court's opinion. Why didn't Carlson just incorporate Waller's language in the opinion for the Court? And what is the precedential value of a 6-justice concurrence?

Baker Donelson v. Seay -- the "my lawyer slept with my wife!" case that's been the talk of the legal community. The Court finds no fiduciary duty not to screw your client's wife, if it doesn't impact the representation. More predictably, the Court finds that said screwing is a frolic of one's own, and hence can't trigger vicarious liability. Given the Court's recent slashing of the scope of said liability, every shareholder at Baker Donelson would've had to have a go at Ms. Seay for the Court to hold otherwise. -- The really disappointing part of the decision comes after reversing Judge Tomie Green for abuse of discretion on a couple of discovery issues:

The circuit court’s “Order Denying Defendants’ Motion to Compel Physical and Mental Examination of Plaintiff” found an absence of “good cause” and that “defendants offered no evidence that the depositions of [Sam] and his treating physician and the production of [Sam’s] medical records are inadequate or insufficient to show [Sam’s] physical and mental status.”

Mississippi Rule of Civil Procedure 35(a) provides, in pertinent part, that:

[w]hen the mental or physical condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner . . . . The order may be made only on motion for good cause shown . . . .

Miss. R. Civ. P. 35(a) (emphasis added). Given the dearth of Mississippi caselaw on Rule 35, rendering this an issue of first impression for this Court, along with the limited nature of the record with respect to this issue (i.e., only the motion and subsequent order), this Court concludes that the circuit court did not abuse its discretion in denying Reed and Baker Donelson’s Motion to Compel Physical and Mental Examination.

Because there's no caselaw on point, the Court will forego the opportunity to create any caselaw? Thanks for the guidance, Court!

Miller v. Parker McCurley Properties, L.L.C. -- The Millers sign a contract to buy a house, which is then ruined by Katrina. The chancery court notes the existence of a contract but invokes equity to set aside the forfeiture clause. 5-4, the Court affirms, over a dissent by Dickinson pointing out that "equity follows the law" and that where the law covers the case, there's no room for equity to provide a different result.

The Millers were buying property under a real estate contract. The majority states that it became “impossible for McCurley to continue providing the property to the Millers,” as if he were a landlord. He was a seller. He had no continuing duties, other than those in the contract. Nothing in the contract required the seller to rebuild the house if it became damaged. Purchasers of property, real and personal, protect their interest in property with insurance, not with equitable remedies in chancery court.

We are a court of law, bound to apply it dispassionately. We may wish the Millers had
not entered the contract, but they did. And having done so, they should now be entitled to remedies provided by law, not equity. For the reasons stated, I respectfully dissent.

Somehow, the fact that the Court's lone chancellor joined Dickinson in his dissent, did not persuade any of the 5 justices in the majority that maybe they were getting the equity thing wrong.