Thursday, August 12, 2010

"Whatever that means"

Sass and counter-sass on the MSSC handdown today. We're presented with the always-interesting sight of the Court's affirming summary judgment for a corporate civil defendant -- interesting when Justice Graves writes the opinion, anyway. As you'd expect, the facts are pretty tight: plantiff brings wrongful-death suit, plaintiff signs release, plaintiff tries to sue third party released. Not much there.

Except that Waller, C.J., with Dickinson, Randolph, and Lamar, JJ., concurs in part and in result. Says Waller. Graves, however, thinks not:
¶12. We note that the separate opinion is labeled as concurring in part and in result with this majority opinion. However, the separate opinion fails to explicitly disagree with any part of this opinion. It merely adopts the findings and holding of this majority. Therefore, the separate opinion is, in fact, a specially concurring opinion.
Question: if 5 justices vote that a separate opinion is a specially concurring opinion and not a concurrence in part and in result, is that dispositive, whatever the author of the opinion may've thought? I am going to teach a whole hour of CLE one day on just that issue -- don't all sign up at once.

The Court's op points out in several places where it's saying what the separate opinion says. And tweaks the Chief. Waller wrote:
And if Thomas was not an employee of Crawford – but an independent contractor, as Crawford argues – then Crawford still could have been released by the settlement contract if Crawford was in “privity of interest” with Thomas, whatever that means.
(My emphasis.) I'm glad that I'm not the only one who finds these rote expressions confusing. Graves for the Court quotes the release of
Hosie Thomas, H.T. Trucking Company, and Progressive Gulf Insurance Company and all agents, servants, employees, representatives, attorneys, adjusters, investigators, officers, directors and successors and all persons, firms, corporations, and other entities in privity of interest therewith
and drops a footnote at that point to say
This is the language quoted in paragraph 16 of the separate opinion, although it adds, “whatever that means.”
Anyway, if you can figure out why a separate opinion was necessary, feel free to tell me -- the separate opinion doesn't say directly, and I confess to sympathy with Graves as to what the point was.

... In other news, back in June, the MSSC found that Miss. Code Ann. 15-1-36(5) and 15-1-36(6) "directly conflict with one another," and decided for (5) on policy grounds. TBA has on good authority that a motion for rehearing addressed whether, in that case, canons of construction required the Court to go with the latter-occurring provision, (6), since that's what the canon says to do with provisions that directly conflict. Today, problem solved! The MSSC simply omitted the first sentence of para. 14 (para. 13 in the original) that had mentioned the "direct conflict." No more conflict!


  1. A quick online search ( found 198 cases that use the term "privity of interest," but the only one in Mississippi is the one you reference. Apparently, "pPrivity of interest" is a term used in federal res judicata decisions to substitute for the requirement of identity of parties where there is none. One whose interests were adequately represented by another vested with the authority of representation is bound by a former judgment, although not formally a party to the former litigation. Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343 (2d Cir.1995). If privity of interest between the parties exists, the "same parties" test is met. United States v. ITT Rayonier, Inc., 627 F.2d 996 (9th Cir.1980). (I cribbed this from Paradise Village Children's Home v. Liggins, 886 So.2d 562, 570 (La. 2004).)

  2. Makes sense, SoMS, but the point is, wouldn't you think Waller's law clerks ought to try that "internet" thing out themselves? No telling what they could find on there.