Zinn v. City of Ocean Springs

928 So. 2d 915, 2006 WL 1073374
CourtCourt of Appeals of Mississippi
DecidedApril 25, 2006
Docket2005-CA-00347-COA
StatusPublished
Cited by4 cases

This text of 928 So. 2d 915 (Zinn v. City of Ocean Springs) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zinn v. City of Ocean Springs, 928 So. 2d 915, 2006 WL 1073374 (Mich. Ct. App. 2006).

Opinion

928 So.2d 915 (2006)

Dianna E. ZINN, Appellant
v.
CITY OF OCEAN SPRINGS, Mississippi, Kerry Belk, Roy Eugene Yates, John T. LaCroix and XYZ, Appellee.

No. 2005-CA-00347-COA.

Court of Appeals of Mississippi.

April 25, 2006.

*918 Kelly McKoin, attorney for appellant.

Matthew Stephen Lott, Robert W. Wilkinson, Pascagoula, attorneys for appellees.

Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. The City of Ocean Springs seized approximately seventy three cats from the premises of Dianna Zinn after a complaint was lodged with the City regarding mistreated animals and an inspection was conducted. Zinn brought suit against the City of Ocean Springs, Kerry Belk, Roy Yates, Dr. John LaCroix, and others in the circuit court of Jackson County claiming excessive force, a violation of her Sixth Amendment right to confront accusing witnesses and a violation of her civil rights under 42 U.S.C. section 1983. The trial court dismissed the state law claims under Rule 41(b) of the Mississippi Rules of Civil Procedure and gave a directed verdict for the defendants on the section 1983 claims. Zinn appeals claiming the following:

I. WHETHER THE ORDER OF THE COURT WAS DRAWN BY COUNSEL OPPOSITE AND IS INAPPROPRIATE UNDER CANON 3(B)(5) OF THE CODE OF JUDICIAL CONDUCT
II. WHETHER THE SEARCH WARRANT IS VALID
III. WHETHER THE LOWER COURT ERRED IN ALLOWING THE ZINN'S SIXTH AMENDMENT RIGHTS TO BE VIOLATED
IV. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS OF ZINN UNDER 42 U.S.C. SECTION 1983
V. WHETHER THE DIRECTED VERDICT IS SUPPORTED BY THE LACK OF EVIDENCE

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Elizabeth Pinkerton purchased two cats from Zinn. These cats were later found by Pinkerton's veterinarian to be afflicted with fleas, ringworms, respiratory infection, and Giardia, a parasite harmful to humans and animals. Pinkerton's daughter eventually became ill as a result of the diseased cats. The veterinarian told Pinkerton to contact the health department or the police department to prevent the spread of disease. Thereafter, Pinkerton filed a complaint of mistreated and diseased animals with the City of Ocean Springs.

¶ 4. On April 6, 1999, after the complaint was filed, Animal Control Officer Roy Yates inspected the home of Zinn, with her permission. Officer Yates found Zinn's home to be unsuitable for cats or humans. He found the cats to be malnourished, with tails missing, open wounds and diarrhea. However, Officer Yates' primary concern was the possibility of a serious public health issue.

¶ 5. On April 15, 1999, a search warrant was issued pursuant to Officer Yates' inspection. That same day, Officer Yates and Chief Kerry Belk, the captain of the city police department, lead the search of Zinn's home. They were accompanied by John LaCroix, a veterinarian hired by the City, and other officials. The search revealed feces on the floor and furniture, old and uncleaned litter boxes with flies, and diseased cats and kittens living in every corner of the home. The search also revealed *919 litter being dumped in a public ditch near the home. The city officials seized approximately seventy three cats and kittens. After the seizure, Dr. LaCroix inspected the kittens and found that the cats had several problems, which included chronic upper respiratory tract infection, diarrhea, flea bite dermatitis, ringworm, ear hematomas, scratches, corneal scars and abrasions. Approximately twenty percent of the cats had the parasite Giardia and only fifty percent of the cats were found to be adoptable.

¶ 6. On June 23, 2000, Zinn filed a complaint against the City of Ocean Springs, Chief Belk, Yates and Dr. LaCroix. Zinn brought a claim under state law alleging excessive force. Zinn also brought a claim alleging a violation of her Sixth Amendment right to confront accusing witnesses and a violation of her civil rights under 42 U.S.C. section 1983. Zinn never propounded discovery upon the City and Zinn never took any depositions.

¶ 7. On January 18, 2005, the case went to trial and Zinn called five witnesses, including herself. Zinn also called Dr. Andy Oberneufemann and his sister, Nancy Oberneufemann, who testified that Zinn took good care of her cats and home. Zinn called Micheal Faggart to testify as a witness to the search and she called Officer Yates, the City's animal warden, to testify as an adverse witness. At the close of Zinn's case, the trial court granted a Rule 41(b) dismissal on the state law claims and a directed verdict on the section 1983 claims both in favor of the City, Belk, Officer Yates and Dr. LaCroix.

STANDARD OF REVIEW

¶ 8. When a judge considers a motion to dismiss under Rule 41(b) of the Mississippi Rules of Civil Procedure, the judge must consider the evidence fairly and not in the light most favorable to the plaintiff and dismiss the case if the judge would find for the defendant. Century 21 Deep S. Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). If the court would find for Zinn if Zinn's evidence were all the evidence offered in the case, the court must deny the motion to dismiss. Id. "This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b)." Id. Therefore, this Court "may only reverse if it finds the trial court abused its discretion." Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990).

¶ 9. The standard of review regarding the directed verdict for the section 1983 claim is different than that applicable to a motion to dismiss granted under Rule 41(b). Corson, 612 So.2d at 369. "The essence of a motion for directed verdict is that there is no genuine issue of material fact and that the moving party is entitled to a judgment on the law applicable to the established facts." Love v. King, 784 F.2d 708, 710 (5th Cir.1986). A court must consider all of the evidence on a motion for directed verdict, not just the evidence supporting the non-movant's case, with all the reasonable inferences most favorable to the non-moving party. Id. The motion should be granted if the facts point so strongly in favor of one party that reasonable minds could not arrive at a contrary conclusion. Id. "A mere scintilla of evidence is insufficient to present a question for the jury." Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969).

ANALYSIS

I. WHETHER THE ORDER OF THE COURT WAS DRAWN BY COUNSEL OPPOSITE AND IS INAPPROPRIATE UNDER CANON 3(B)(5) OF THE CODE OF JUDICIAL CONDUCT

¶ 10. Canon 3(B)(5) of the Code of Judicial Conduct states in part:

*920 [a] judge shall perform judicial duties without bias or prejudice.

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Bluebook (online)
928 So. 2d 915, 2006 WL 1073374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zinn-v-city-of-ocean-springs-missctapp-2006.