The Mississippi Court of Appeals wore me out with nine opinions today. There is something for just about everybody below including crimes, conservatorships, and contracts. One case includes a nightmare scenario where an order of dismissal was entered and the plaintiff’s attorney did not receive notice of it until well after the appeal deadline passed, and there is a special concurrence shining a beacon of hope for litigants who find themselves in this situation.
McLendon v. State, 2022-CP-00057-COA (Civil – PCR)
Affirming summary denial of a motion for post-conviction collateral relief, holding that a proper factual basis was shown as to each element of the offense during the guilty plea.
(10-0)
Davis v. State, 2021-KA-00759-COA (Criminal – Felony)
Affirming convictions of armed robbery and kidnapping, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial based on inadmissible testimony from the police chief that the defendant had been previously incarcerated for burglary.
(7-3-0: Judge McDonald specially concurred, joined by Chief Judge Barnes, Judge Greenlee, and Judge Westbrooks; Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in the result only without separate written opinion.
N0te – Here is how the trial court handled the inadmissible testimony:
Owens v. State, 2021-KA-00887-COA (Criminal – Felony)
Affirming conviction of burglary of a business, holding that the conviction was not against the weight of the evidence .
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)
Note – The dissent argued that the conviction was against the weight of the evidence and discussed the evidence that was presented. The dissent embedded into the opinion stills from surveillance videos that were shown to the jury was extremely helpful in understanding the evidence that was presented and that was being discussed.
State v. Hudson, 2021-KA-01232-COA (Criminal – Felony)
Dismissing the State’s appeal of a directed verdict of acquittal, holding that the appeal was not authorized by section 99-35-103(b) because the issues on appeal did not present the Court with a pure question of law.
(10-0)
The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (Civil – Contract)
Reversing summary judgment in favor of the defendants on a breach of contract and fraud complaint related to fees the defendant allegedly owed the plaintiff for recruitment services, holding that there was a fact dispute over the existence of a contract.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)
Atkins v. Moore, 2021-CA-00780-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s final judgment approving a conservator’s final accounting, holding that the conservator had not misspent or converted funds and that the plaintiff was not otherwise entitled to relief.
(9-1-0: Judge Westbrooks specially concurred, joined by Judge McDonald and joined in part by Judge McCarty)
Note – The Court of Appeals took issue with several aspects of the proceedings below, but found none warranted reversal. Here is the Court’s conclusion:
Another Note – This opinion cites a post by Jane Stroble Miller from Judge Larry Primeaux’s The Better Chancery Court Practice Blog, noting that it “provides a very helpful discussion on the need for ‘vouchers’ to support and accounting.” I fail to see a downside in favorably citing law blogs in judicial opinions.
Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (Civil – Contract)
Dismissing the appeal in part and affirming in part, holding that the Court did not have jurisdiction to review the order granting the motion to dismiss where it was not timely filed because counsel did not receive notice of the judgment and dismissing that part of the appeal and affirming the denial of the plaintiff’s motion to reconsider.
(8-2-0: Judge McCarty specially concurred, joined by Judge Greenlee, Judge Westbrooks, Judge McDonald, Judge Lawrence, and Judge Smith; Judge Emfinger concurred in the result only without separate written opinion)
Practice Point – Judge McCarty’s special concurrence highlights a lifeline to litigants in the unfortunate situation of not receiving notice of an appealable judgment until after the deadline to file a notice of appeal:
Note – It is a credit to the appellee and appellee’s counsel for not arguing untimeliness under these circumstances at any point in the process.
DeSoto County v. Vinson, 2021-CC-00864-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of the DeSoto County Board of Supervisors’ approval of a landowner’s application to subdivide a residential lot, holding that the landowner’s failure to accompany the application with names of persons adversely affected or directly interested and their signatures approving the division violated section 17-1-23(4).
(8-1-1: Judge Emfinger concurred in the result only without separate written; Judge Wilson dissented)
Burchett v. State, 2021-KA-00776-COA (Criminal – Felony)
Affirming conviction of murder, holding that there was no evidence to supporting a lesser-included instruction on heat of passion manslaughter.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in part and dissented in part, joined in part by Judge McDonald)
Other Orders
Young v. Freese & Goss, PLLC, 2020-CA-01280-COA (denying rehearing)
Simpson County School District v. Wigley, 2021-CA-00009-COA (denying rehearing)
Boyd v. State, 2021-KA-00066 (denying rehearing)
Nguyen v. Bui, 2021-CP-00538-COA (denying rehearing)
McGilberry v. Ross, 2021-CP-01076 (denying rehearing)
Mississippi Appeals Blog 