Decisions – Miss.S.Ct. – April 30, 2015

Speedy trial – The most interesting thing on today’s hand down list is a dissent in the criminal case of Michael Taylor v. State. He was convicted of ag. assault and sentenced to five years. The Miss.S.Ct. affirms but the dissent written by Justice Dickinson addresses Taylor’s speedy trial issue.

Michael Taylor was arrested January 8, 2007. He filed a motion for a speedy trial on August 21, 2008, and moved to dismiss on speedy-trial grounds November 6, 2008. When his trial began on December 1, 2008, he asked the trial judge to address his motion to dismiss. Rather than analyze the speedy-trial issue by applying the Barker v. Wingo factors, the trial judge provided the following dismissive remarks: Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). THE COURT [Judge Tomie Green]: I’ll give you time to argue because I want us to hurry up and finish with this. I’m letting her make a record for it because he’s got a speedy date, and it’s going today, but I’ll let her argue the motion for her record.

The trial judge’s statements clearly indicate she never intended to protect—or even consider—Taylor’s speedy-trial rights. In fact, the comments evince the trial judge’s view that, in Hinds County, Taylor should be thankful he was given a trial at all.

Taylor’s appellate counsel did no better than the trial judge, passing on the opportunity even to brief that issue to this Court, and today’s majority would not have addressed it at all, had I not submitted this dissent. So it seems that speedy-trial jurisprudence in this state is so predictable that many feel the issue is not worth addressing. Without apology, however, I shall continue to address it as I have before.

Tyrone Boyd v. State – admissibility of Facebook messages and text messages – 32-year-old Tyrone Boyd was convicted of exploitation of a child and sentenced to 12 years with 7 to serve. Boyd friended a 12 year old girl on Facebook. She told her stepfather about her new friend and the stepfather thought he remembered Boyd from high school so he took his daughter’s phone and pretended to be here while Boyd asked her her age, whether she was a virgin, etc. Boyd eventually asked if she was ready to lose her virginity and arranged to meet her at a convenience store. The stepfather cased the store, spotted Boyd, and went to the sheriff’s office the next day whereupon he was arrested. On appeal he argues that the state failed to properly authenticate Facebook and text messages. The Miss.S.Ct. finds the issue waived since there was no objection at trial.

Vincent Castigliola v. Miss. Dep’t of Revenue – use tax for casual sale – Mississippian Castigliola purchased a yacht in Florida from an Ohio resident. Neither was in the business of buying and selling boats.. Castigliola did not pay sales tax on the boat in Florida or use tax in Mississippi. MDOR audited Castigliola and subsequently assessed use tax and penalties regarding the boat purchase, totaling $7,588. Castigliola challenged the tax and lost both administratively and before the chancery court. The Miss.S.Ct. reverses holding that MDOR has the initial burden of proving that the transaction is taxable. MDOR did not meet that burden here. “Mississippi law provides that, with the exception of the sale of a motor vehicle, isolated or occasional sales are not subject to sales or use tax if the sale ‘is not made in the regular course of the business of a person selling tangible personal property.’ Miss. Admin. Code 35 IV. 3.02 (101); Miss. Code. Ann. § 27-67-7(b) (Rev. 2010). It is abundantly clear from the record that Fallon and Castigliola were not in the boat trade, and that Galati’s marketing service in no way made this transaction something other than a casual sale.”

Howard Holaday, M.D. v. Kyle and Marla Moore – SOL med mal/discovery rule – this is an interloc from the denial of summary judgment on an sol issue in a med mal case. Kyle Moore went to the ER suffering from lower back pain. He went to the ER on May 23, 2004, was eventually diagnosed with an epidural abscess which was operated on the next morning. The Moores sued alleging that the delay in operating caused Moore to suffer from neurological injuries. The issue here is whether Moore timely added Dr. Howard Holaday as a defendant in March of 2011. Dr. Holiday’s participation was this – the ER surgeon called Moore’s orthapaedic surgeon Dr. Wood (with whom Moore had an appt. in a few days). Dr. Holaday was taking Dr. WOods’ calls that night. The ER doctor made a note that he talked to Dr. Holaday who promised to see the patient in the ER. Holaday did not see the patient in the ER and claims he would never have agreed to do so because he was out of town at the time. The Moore’s attorney did not think that Holaday was a defendant when he filed the lawsuit. Holaday was deposed in Feb. 2010 and testified that he was not on call that night for St. Dominic but vaguely remembered a phone call. In July 2010, the Moores deposed the ER doctors who first saw Moore in the ER. Apparently those doctors indicated that Dr. Holaday’s involvement was a little more than that. Dr. Holaday moved for summary judgment on the 2-year SOL because his name was in the medical records. The Miss.S.Ct. affirms the denial of summary judgment finding that the issue is one for the jury.

If Drs. Stout and Hatten were telling the truth, then Dr. Holaday’s statements denying involvement may have been untruthful. Again, this remains a question for the jury. His denial of participation in Moore’s treatment and his assertion that Moore’s medical records were erroneous could constitute “some affirmative act or conduct [which] was done and prevented discovery of a claim.” Channel, 954 So. 2d at 423 (quoting Stephens, 850 So. 2d at 84). If Dr. Holaday misrepresented relevant facts, he thereby affirmatively concealed his involvement and gave rise to a bona fide belief in the Moores that no claims against him existed. Whether the Moores and their attorney performed the requisite due diligence by hiring a neurosurgeon, Dr. Stringer, to contact Dr. Holaday and to investigate the existence of a claim against him, constitutes a question for the jury. Whitaker, 32 So. 3d at 436. The Moores aver that Dr. Holaday’s conversation with Dr. Stringer formed the basis for their initial determination that no viable medical negligence claims could be made against Dr. Holaday. If the jury were to decide thusly, then the potential for fraudulent concealment ought to have tolled the statute of limitations until July 6, 2010, when the Moores learned that an issue of fact existed regarding Dr. Holaday’s involvement.