I’ve already written about one split decision, arguing that Justices Dickinson and Kitchens got it right in their dissents (where they were joined by Justice Graves) in the Solomon Osborne case.  Here’s a story in the Greenwood Commonwealth about the Osborne case, which also notes:

The state Supreme Court is still considering another recommendation, based on an unrelated case, that Osborne be banned for life from the bench. That case involves a then 17-year-old Greenwood female whom Osborne ordered detained n a move the commission claims was the result of “improper, illegal and inappropriate” acts.

There are three more cases with slit opinions.  I’m not counting a zoning decision written by Justice Randolph to which Justice Graves dissented without written opinion– without an opinion from him one can’t tell anything about why Justice Graves dissented.

Details about all this below the fold.

The first thing to note is that Justice Dickinson is in dissent in all four divided opinions, writing in three out of four cases, and joining Justice Graves in the other. Justice Kitchens also wrote in dissent in the Osborne case, and agreed with Justice Dickinson in three out of four of these cases.  Justice Chandler, who did not write in any of these three cases, also agreed with Justice Dickinson three out of four times.  Justice Graves wrote one of the majority opinions in the divided cases, concurred in the result on another, and joined the dissents in the remaining two.  Justice Waller wrote two majority opinions, and Justice Carlson the fourth.  The second thing is that it seems to me that these four dissents and the majority opinions, both, represent a calmer rhetoric than we were seeing from this court last year.

In addition to these five split opinions there were four unanimous opinions: two annexation cases (one written by Randolph and one by Dickinson), a state employment decision (written by Dickinson) and a real estate contract statute of limitations decision (written by Lamar).  I only looked relatively closely at the last, which reverses the trial court for dating a concealment claim from the time of a real estate contract, not from the time the buyer could have discovered the claim.  That one’s hard to argue against.

So here’s the opinions with dissents other than Osborne:

• In Wilson v. Nance, the trial court had dismissed a personal injury case as a sanction for failure to follow a court order.  As a jury was being selected, the plaintiff’s lawyer had stood up and said he doubted his client’s competence. The trial judge decided to continue the case, assess the costs of the abortive trial to the plaintiff and give plaintiff’s counsel 90 days to have a guardian appointed on the competence issue. In a couple of weeks, the plaintiff’s lawyer applied for a conservator, not a guardian.  The court with the conservatorship proceeding didn’t hear the  appointment for 107 days.  Thus, no guardian was appointed by the deadline.  The trial judge on the personal injury case therefore dismissed the case with prejudice, meaning any chance the plaintiff had of recovering was over.  Reading between the lines, I have the sense that there must be more to this dismissal than appears clear in the opinion– the trial judge’s patience was probably pushed more than the opinion describes. Under the facts as stated by both majority and dissent, the complete dismissal seemed too harsh a sanction to me, but not to a majority of the court. In any event, Graves writes for the majority, affirming the dismissal, joined by Waller, Carlson, Randolph, and Pierce.  Dickinson dissents, joined by Kitchens and Chandler and in part by Lamar (she does not explain which part), contending that the dismissal was too harsh.  There was a Patsy Brumfield story about this opinion, although it doesn’t add a lot to the opinion itself.
• In City of Jackson v. Spann, Waller wrote the majority, joined by Carlson, Randolph, Lamar, and Chandler.  Graves dissents joined by Dickinson, Kitchens, and Pierce.  This is a personal injury suit against the City of Jackson.  There had been a non-jury award to the injured plaintiff by circuit judge of $285,595.  The Supreme Court radically reduced this damage award, holding that there was not sufficient evidence of the need for future surgery or of future disability and reduced the judgment to less than $100K. The trial judge being reversed was Judge Winston Kidd.  One interesting aspect is that the trial judge had adopted one side’s proposed findings of fact, and therefore the court applied heightened scrutiny, which, in this case seems to have made the difference.  The Supreme Court noted that it would not overturn a damages award unless it was “so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury [in this case, judge] have been actuated by passion, partiality, prejudice, or corruption.”  What is being communicated about Judge Kidd here? Basically, the majority didn’t buy a doctor’s statement about future surgery needed (the doctor uses the word “guess” in estimating the surgery, which I think is where that came off the rails) and doesn’t buy the disability rating applied by the doctor.  The dissent is all about respecting fact decisions supported by the record.  From reading both opinions, the trial court decision appears to be supported by the record except for that word “guess.”
• In White v. Cooke, Waller wrote the majority, joined by Carlson, Randolph, Kitchens, and Pierce.  Graves concurs in result only.  Dickinson is in dissent, joined by Chandler.  The majority opinion in this case makes a complete mess of notions of mutual mistake in contract law, and I’ll have to say that I share  Justice Dickinson’s clearly expressed puzzlement at the majority’s view.  What happened:  White bid at auction on property being sold “as is.”  After the auction, the seller, Cooke, discovered that he was mistaken in his belief that a driveway to an adjoining tract did not intrude on the subject tract.  He thus refused to close without allowing an additional easement.  The chancellor viewed the “as is” language as giving Cooke an out, found that White’s refusal to close without allowing Cooke to give that additional easement to be in bad faith, and awarded Cooke attorneys fees for the suit.   While the attorneys fees ruling was reversed, the majority opinion accepts Cooke’s mistake argument.  Dickinson’s dissent makes clear there was nothing mutual about the mistake.   Justice Dickinson wrote:   “This case is not about a mutual mistake of fact. A seller who advertises and sells property in its ‘as is’ condition cannot back out of the deal because he later learns the property he contracted to sell has a road on it he thought was on another parcel he wants to sell to someone else. Stated another way: A person who wants to come back later and correct mistakes shouldn’t sell property ‘as is.’ Cooke carefully placed everyone on notice that – regardless of what was in the brochure – the parcels were being sold ‘as is.’ Then, after discovering that the ‘as is’ was not as he thought it was (or wanted it to be), he claims mutual mistake of fact. I am quite surprised that the majority is persuaded by this specious argument.”

I’ll note that, laying aside Osborne, the two affirmances are of a trial judge finding for the defendant (I count White as largely affirmed), and the reversal takes down a substantial damages award for the plaintiffs.   No criminal cases have been decided yet.  I’ll also note that I think Justice Dickinson’s well-thought out dissents will in the medium run (perhaps even short run) prod the court toward doing a better job– these opinions take the court to task in a reasoned, reasonable way for things that Dickinson feels the court got wrong.  Particularly in Wilson, White and Osborne, I think he has the better of the argument.   Spann is closer (because the doctor on the surgery number said he was guessing) but even there, at least on the future disability, I think the dissent has the better argument.

For langiappe, I’ll throw out two orders-without-opinions that make me wonder: What’s up with that?  In the first, without an opinion, the court reiterated that a lawyer named Laura Kuns is still in contempt for not paying Watkins, Ludlham costs or fees for whatever-it-is-Ms. Kuns-did-that-was-contempt.   Here’s the original contempt order, which sheds little light.  Is there an interesting story here? Anyone?  I’m curious.

Additionally, the court overturned a prior decision (written by Easley, with no dissent) that had affirmed a chancellor’s ruling construing a deed.  In granting the hearing, there’s no opinion, just an order withdrawing the prior opinion and granting rehearing.  Here’s the original opinion that’s now not even on Westlaw.  So the chancellor is wrong, but in what way? He’s on his own to figure that out.