Madison Taylor

Mississippi Supreme Court Decisions of September 14, 2023

The Mississippi Supreme Court handed down one opinion today. The issue is a battle between COVID and the rules of appellate procedure. Read on to see who won…

Gilmer v. Biegel, 2022-CP-00528-SCT (Civil – Other)
Affirming order denying appellant’s motion for extension under Rule 4(g) of the Mississippi Rules of Appellate Procedure, holding the 30-day window for a motion under Rule 4(g) is “hard edged” so the trial court properly denied the motion for extension filed 50 days after the initial appeal deadline passed, and the court was without jurisdiction to suspend the rules and allow the appeal to proceed as if timely filed.
(9-0)

NOTE – The appellant argued that a severe bout of COVID and resulting “brain fog” was to blame. He argued that the notice of appeal should be accepted as timely filed, “especially in light of this Court’s COVID-19 emergency orders authorizing trial courts to exercise sound discretion in extending deadline.” But the court was not persuaded:

Other Orders

Fair v. State, 2023-M-00783 (denying application for leave to proceed in the trial court, finding it frivolous, and warning that future frivolous filings could result in sanctions)

West Jasper Consolidated School District v. Rogers, 2021-CT-00171-SCT (denying cert)

In the Matter of the Estate of Biddle, 2021-CP-00513-SCT (denying rehearing)

Maxwell v. Panola County, 2021-CT-01001-SCT (denying cert)

Barber v. State, 2022-KA-00291-SCT (denying rehearing)

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Mississippi Court of Appeals Decisions of September 5

I was out of town last Tuesday, so I am circling back to last week’s decisions from the Mississippi Court of Appeals. The Court handed down three opinions on Tuesday. Two are direct criminal appeals and the other one is a child custody case.

Goode v. State, 2021-KA-01310-COA (Criminal – Felony)
Affirming conviction of murder and denial of post trial motions, holding that the trial court did not err in admitting photographs of the victim and his injuries or in denying the motion for directed verdict where there was testimony from three eyewitnesses and a medical examiner, that the verdict was not against the overwhelming weight of the evidence, and that the trial court did not err in refusing five of the defendant’s proposed jury instructions.
(8-2-0: Wilson and Emfinger concurred in part and in the result sub silentio)

NOTE – The first refused instructions was a peremptory instruction. The second was a definition of “reasonable doubt.” The third was a lesser-included instruction of heat-of-passion manslaughter which the trial court deemed forfeited when the defendant took the stand and denied shooting the victim. The fourth and fifth refused instructions were on eyewitness identifications which were properly refused because there were multiple eyewitnesses.

Urban v. Urban, 2022-CP-00195-COA (Civil – Custody)
Affirming judgment denying petition for modification of custody leaving the mother with full legal and physical custody, holding that the father received sufficient service for the Rule 59(e) motion which did not require a Rule 81 summons, that the chancellor did not err in finding that the mother showed a need to correct a clear legal error which the chancellor properly did, that claims of fraud by the mother and bias of the chancellor were procedurally barred, that there was no basis for the father’s claim that the chancellor admitted hearsay, that the equitable estoppel argument was procedurally barred, and that the issue of whether the chancellor should have adopted the GAL’s recommendations could not be addressed because the GAL report was not in the record on appeal.
(9-1: Barnes concurred in the result only sub silentio)

Kilcrease v. City of Tupelo, 2022-KM-00194-COA (Criminal – Misdemeanor)
Affirming the dismissal of an appeal from municipal court for lack of jurisdiction, holding that it lacked jurisdiction where the appellant failed to timely file an appearance bond to perfect her appeal to the county court.
(5-5: McDonald dissented, joined by Carlton, Greenlee, Westbrooks, and McCarty)

NOTE – The dissent first took issue with questions about whether the municipal court violated statutory and constitutional rights:

The dissent’s discussion of the timeliness of the appeal was interesting:

Other Orders

In the Matter of the Last Will and Testament of Mamie Elizabeth Pearson Bray, 2022-CA-00011-COA (denying rehearing)

Parker v. Canton Manor, 2022-WC-00206-COA (denying rehearing)

Applewhite v. State, 2022-KA-00290-COA (denying rehearing)

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Mississippi Supreme Court Decisions of September 7, 2023

The Mississippi Supreme Court handed down two opinions today. One is a panic-inducing civil procedure case and the other is a direct criminal appeal.

Thomas v. Bolivar County, Mississippi, 2022-CA-00445-SCT (Civil – Other)
Reversing the trial court’s grant of judgment on the pleadings in an MTCA case where the complaint was delivered to the circuit clerk on the last day of the limitations period but it was not entered into MEC until the following day (after the deadline), holding (1) when the MTCA statute of limitations falls on a Sunday, Miss. Code Ann. § 1-3-67 authorizes an extension to the following Monday; (2) delivery of the complaint, civil cover sheet, and filing fee constituted “filing” the complaint; and (3) the delay in having a summons issued did not delay the commencement date of the action.
(9-0)

PRACTICE POINT – The underlying facts of this case are nightmare fuel for civil litigators. As if the background facts weren’t enough, this part the opinion also caught my attention:

McCollum v. State, 2021-KA-01276-SCT (Criminal – Felony)
Affirming conviction of grand larceny, holding that the investigator had presented sufficient probable cause to the magistrate to justify a search warrant, that there was no hearsay admitted that would warrant reversal, and there was no error in denying a mistrial based on the presence of witness during the testimony of a State’s witness because the trial court excused the witness who violated the sequestration rule.
(7-2: King dissented, joined by Kitchens)

Other Orders

Crump v. State, 2018-M-00410 (denying application to proceed in the trial court and restricting the petitioner from filing further applications for PCR in forma pauperis)

Garcia v. State, 2021-CA-01214-SCT (denying rehearing)

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Mississippi Supreme Court Decisions of August 31, 2023.

The Mississippi Supreme Court handed down two opinions today: one civil and one direct criminal appeal. The civil case addressed whether summary judgment based on 30(b)(6) testimony in a negligence case was proper. The direct criminal appeal challenged a capital murder conviction on several grounds.

Mississippi State Agencies Self-Insured Workers’ Compensation Trust v. Herrgott, 2021-SA-01280-SCT (Civil – Real Property)
Reversing summary judgment in a subrogation action filed by a workers’ compensation trust against an alleged tortfeasor stemming from an ATV accident in which a state employee sustained an injury that compensable under the MWCA, holding that the trust was not bound by the failure of its 30(b)(6) representative to articulate a legal theory at his deposition.
(9-0)

PRACTICE POINT – The Supreme Court favorably quoted a prior MS Court of Appeals decision and two decisions from federal district courts in its reasoning. The quoted language could benefit both sides of the civil bar in a few different contexts that come immediately to mind:

Dukes v. State, 2022-KA-00670-SCT (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err by allowing testimony of a rebuttal witness that had not bee disclosed, or in denying a motion for mistrial based on argument that the State violated a motion in limine precluding testimony related to severed counts in the indictment, and the that trial was not rendered unfair by hearsay testimony.
(9-0)

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing/reappointing the following six persons to three-year terms as members of the complaint tribunals effective September 1, 2023: George Philip Schrader IV, Hon. Carol White-Richard, Hon. Jennifer F. Nicaud, Hon. Claiborne (Buddy) McDonald IV, J. Rhea Tannehill, Jr., and Leo J. Carmody)

Neal v. State, 2011-M-00201 (granting letter motion and remanding for resentencing)

Thomas v. State, 2021-CT-00060-SCT (denying cert)

Mitchell v. State, 2021-KA-00589 (denying rehearing)

Lamy v. Lamy, 2021-CT-00770-SCT (granting cert)

Pace v. State, 2022-CT-00046-SCT (denying cert)

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Mississippi Court of Appeals Decisions of August 29, 2023

The Mississippi Court of Appeals handed down six opinions today. Today was heavy on direct criminal appeals, with one reversal in part. There was also an appeal of summary judgment in a slip-and-fall case and a PCR case.

Gilbert v. State, 2021-KA-01265-COA (Criminal – Felony)
Affirming conviction of leaving the scene of an accident causing significant bodily injury, aggravated DUI, and DUI-related death of an unborn child, holding that the claim of ineffective assistance of counsel was without merit and that the prosecution did not improperly draw attention to the defendant’s exercise of his right to remain silent during closing arguments.
(10-0)

Landry v. Vallman McComb Mall, LLC, 2022-CA-00439-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a fast food restaurant in a slip-and-fall case, holding that mopping and cleaning floors in a restaurant was a reasonable endeavor and was conducted in a reasonable manner, and that the an employee provided multiple warnings.
(9-1-0: McCarty concurred in part and in the result sub silentio.)

Lee v. State, 2022-KA-00078-COA (Criminal – Felony)
Affirming in part and reversing in part after the defendant was convicted of first degree murder, two counts of felon in possession of firearm, and tampering with physical evidence, holding (1) that the two counts of felon in possession should be merged into a single count and remanding for sentencing, (2) that excluding language from the tampering instruction that removed the element requiring intent was plain error, and (3) that retroactive misjoinder was inapplicable.
(9-1-0: Barnes concurred in part and in the result sub silentio.)

NOTE – Here is the jury instruction at issue:

Washington v. State, 2021-KA-01384-COA (Criminal – Felony)
Affirming convictions of first-degree murder and two counts of aggravated assault, holding that the trial court’s ruling on the defendant’s Batson challenges were not clearly erroneous or against the overwhelming weight of the evidence.
(8-1*-0: Westbrooks wrote a special concurrence, joined by McDonald and joined in part by McCarty; Smith did not participate. *McDonald and McCarty joined the majority opinion and the special concurrence.)

Ellison v. State, 2022-KA-00462-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the verdict was not against the overwhelming evidence and that the trial court did not err by not removing a sleeping juror where the issue was not raised by trial counsel, and dismissing the ineffective assistance claim without prejudice.
(9-0: Smith did not participate.)

Hall v. State, 2022-CP-01097-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the motions were filed outside of the three-year statute of limitations and the petitioner did not prove that a statutory exception applied.
(7-3*-0: Westbrooks wrote a special concurrence joined by McDonald, and joined in party by Barnes and McCarty; Barnes and McDonald concurred in part and in the result sub silentio. *McCarty authored the majority opinion and joined the special concurrence.)

Other Orders

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (denying rehearing)

Williamson v. State, 2021-KA-00830-COA (denying rehearing)

Durr v. State, 2021-KA-01109-COA (denying rehearing)

Herbert v. Herbert, 2021-CA-01291-COA (denying rehearing)

Beckworth v. Beckworth, 2022-CA-00048-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 24, 2023

The Mississippi Supreme Court handed down one opinion today in an interesting case addressing the applicability of the ecclesiastical abstention doctrine that yielded a total of four opinions. The Court also granted cert in three significant cases covering three very different areas of law: (1) a direct criminal appeal where the COA affirmed a conviction of sexual battery over a dissent finding a Confrontation Clause violation, (2) a PCR case where the COA held an indictment was defective but the claim was procedurally barred, and (3) a civil case where the COA reversed summary judgment because it said there was a question of fact whether car wreck was the proximate cause of opioid misuse and death.

Beachy v. Mississippi District for Assemblies of God, 2021-CA-01007-SCT (Civil – Contract)
Reversing the chancellor’s ruling in a dec action brought by the District against a particular church and its board of trustees that had sought to disaffiliate with the District and remove a reverter clause in its constitution and bylawys that would have caused the church’s property to revert to the District, holding that issues concerning disaffiliation are church-governing matters and that the ecclesiastical abstention doctrine deprived the chancellor of jurisdiction over but that there was a genuine issue of material fact concerning the issue of property ownership.
(5-2-2: Maxwell specially concurred, joined by Coleman, Beam, and Chamberlin, and joined in part by Ishee; Ishee concurred in part and dissented in part joined in part by Maxwell; Randolph dissented, joined by Griffis)

Other Orders

Hathorne v. State, 2021-CT-00306-SCT (granting cert) (a 2-4-4 COA affirmed denial of motion for PCT, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred)

Barfield v. State, 2021-CT-00660-SCT (denying cert)

Pitts v. State, 2021-CT-00740-SCT (granting cert) (a 6-1-2 COA affirmed conviction of sexual battery after a screen was placed between the child and the defendant; Judge Wilson’s dissent argued that the use of the screen was a violation of the Confrontation Clause)

Clark v. Tippah County Dept. of CPS, 2021-CT-01209-SCT (denying cert)

Smith v. Minier, 2021-CT-01284 (granting cert) (the COA reversed summary judgment dismissing wrongful death claim where decedent died of chronic liver failure five months after a car wreck, holding that there was a fact question as to whether the at-fault driver’s actions were proximate cause of decedent’s use of pain meds, misuse of pain meds, and resulting death)

Penn-Star Ins. Co. v. Thompson, 2022-IA-00106-SCT (denying rehearing)

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Mississippi Court of Appeals Decisions of August 22, 2023

The Mississippi Court of Appeals handed down five opinions today. There are two direct criminal appeals, two custody cases, and a real property case deciding the parties’ respective rights to a common wall that gave me bar exam flashbacks.

In the Matter of the Guardianship of B.P., 2021-CA-01288-COA (Civil – Custody)
Affirming the chancellor’s order in a custody matter, holding that the chancellor did not err in finding that the child’s appointed guardians successfully rebutted the natural parent presumption and that it was in the child’s best interest to remain in the guardians’ custody.
(8-1-1: No separate opinions. Westbrooks concurred in the result only and McDonald concurred in part and dissented in part without separate written opinion.)

Ndicu v. Gacheri, 2022-CA-00415-COA (Civil – Custody)
Affirming the chancellor’s judgment in a custody matter, holding that the chancellor did not manifestly abuse his discretion by denying the father’s request for past child support and education expenses.
(10-0)

Kelly v. State, 2022-KA-00577-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the circuit court did not err in denying the defendant’s motion for new trial based on an allegation that a juror misrepresented her lack of familial relationship with the victim where the claimed familial relationship was not supported by credible evidentiary support and, even if there was a familial relationship, there was no evidence the juror knew about it when she said she was not related to the defendant.
(8-1-1: No separate opinions. Westbrooks concurred in result only; McDonald dissented.)

NOTE – The alleged familial relationship surfaced when a member of the defendant’s family sent the juror in question a Facebook message:

LIFE TIP – Do not message jurors.

Alford v. Cotton Row Hospitality, LLC, 2022-CA-00125-COA (Civil – Real Property)
Affirming in part and reversing in part on direct appeal and cross-appeal in a case about a common wall between two properties in a downtown area, holding that Side A of the wall had established a prescriptive easement for the use of the wall but did not obtain an ownership interest by adverse possession of the wall that was located on Side B’s property and included in Side B’s deed, that there was no equitable need for Side B to sell the wall to Side A, and that Side A did not have to reimburse Side B for its expense in supporting the wall Side B incurred after tearing down the other three walls of Side B’s property.
(10-0)

NOTE – This opinion also discusses the doctrine of unclean hands (it did not apply) and the adequacy of pleading the prescriptive easement claim (it was adequate).

Smith v. State, 2020-KA-00774-COA (Criminal – Felony)
Affirming conviction of assault and possession of a firearm by a felon, holding that the trial court committed harmless error (i.e. not plain error) by giving a pre-arming jury instruction that was not objected to, that the evidence was sufficient to establish the defendant’s identity, that the trial court did not err in giving a flight instruction where the defendant did not provide an independent and uncontradicted reason for his flight, and that the defendant’s trial counsel was not ineffective.
(8-2: Emfinger dissented, joined by Wilson.)

NOTE – The dissent’s position is that the defendant’s appeal of his conviction and sentence was not properly before the court:

Other Orders

Friley v. State, 2021-KA-00791-COA (granting pro se motion for time for rehearing motion)

Renfroe v. Parker, 2021-CA-01048-COA (denying rehearing)

McFarland v. State, 2021-CA-01311-COA (denying rehearing)

Everett v. State, 2021-CP-2021 (denying rehearing)

Fagan v. Faulkner, 2022-CA-00130-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 17, 2023

The Mississippi Supreme Court handed down four opinions today. One is a direct criminal appeal and one was a real property case addressing the applicability of restrictive covenants after a foreclosure sale. Then there are two decisions on interlocutory appeals of summary judgment denials – a med mal/MTCA pre-suit notice case against a hospital and a construction zone MVA case against the road contractor and MDOT.

Stuart v. State, 2022-KA-00585-SCT (Criminal – Felony)
Affirming conviction of filming a person without her knowledge and with an expectation of privacy, holding that the defendant’s right to counsel was not violated when he had been through three public defenders and his request that a fourth lawyer be appointed his counsel days before trial and for continuance was denied where the fourth lawyer was appointed to serve as advisory counsel, and that the trial court did not err in denying the defendant’s accident instruction.
(9-0)

UMMC v. Aycock, 2022-IA-00030-SCT (Civil – Med Mal)
Affirming on interlocutory appeal the denial of the hospital’s motion for summary judgment arguing that the plaintiff did not serve proper pre-suit notice on the CEO, holding that the notice requirements are mandatory–but not jurisdictional–but that there was an issue of material fact as to whether the hospital waived, or is equitably estopped from asserting, lack of compliance based on its conduct after actually receiving notice though not through its CEO.
(8-1: Griffis concurred in part and dissented in part)

NOTE – Here is the Court’s summary of some of the facts relevant to waiver and equitable estoppel:

Loblolly Properties LLC v. Le Papillion Homeowner’s Ass’n, Inc., 2021-CT-00767-SCT (Civil – Real Property)
Affirming the chancery court and court of appeals in an action to collect HOA fees, holding that the developer who purchased properties through a nonjudicial foreclosure sale owed HOA fees where it purchased the properties with notice of the restrictive covenants and holding, specifically, that the foreclosure sale did not extinguish the HOA covenants.
(7-2: Coleman dissented, joined by Griffis)

Joe McGee Construction Company, Inc. v. Brown-Bowens, 2021-IA-01405-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of summary judgment to a road construction contractor and to MDOT, holding that there was no competent summary judgment evidence to support that any breach of duty by the contractor or by MDOT proximately caused the crash where the contractor had installed all warning signs required by MDOT and where the decedent passed multiple signs warning of a road closure and crashed into a crane on a closed portion of the highway.
(7-2: Kitchens dissented, joined by King)

DISCLOSURE – I represented the road contractor appellant in this case.

PRACTICE POINT – I think this is a useful, pithy statement to support motions for summary judgment when the arguments on causation are speculative:

Other Orders

In Re: Local Rules, 89-R-99015-SCT (approving amendment to local rule filed by Judge Irving in the 22nd Circuit Court District)

Rhea v. Career General Agency, Inc., 2021-CT-00580-SCT (granting cert)

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CT-00605-SCT (denying cert)

The Board of Supervisors for Lowndes County, Mississippi v. Lowndes County School Dist., 2021-CA-00999-SCT (denying rehearing)

Wagner v. Andreacchio, 2021-IA-01199-SCT (denying rehearing)

Bradley v. State, 2022-CT-00173-SCT (denying cert)

MS Concrete v. Harris, 2022-CT-01095-SCT (denying cert)

Howell v. State, 2023-DR-00455-SCT (remanding motion for appointment of counsel for representation of indigent capital petitioner)

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Mississippi Court of Appeals Decisions of August 15, 2023

The Mississippi Court of Appeals six opinions today. The court served up two direct criminal appeals, an easement by necessity case, a workers’ comp jurisdiction case, a MDES case, and a PCR case.

Ramsey v. State, 2022-CP-00103-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in dismissing it as successive.
(9-0: Smith did not participate)

Hobby v. Ott, 2021-CA-01305-COA (Civil – Real Property)
Reversing the chancellor’s order granting an easement by necessity, holding that the chancellor court erred in making this ruling without any supporting proof in the record regarding the costs of alternative routes of access, and rendering judgment denying the request.
(10-0)

Chatman v. State, 2022-KA-00386-COA (Criminal – Felony)
Affirming conviction of sexual battery of a minor, holding that there was sufficient evidence to support the conviction.
(10-0)

Pritchett v. MDES, 2022-CC-00808-COA (Civil – State Boards & Agencies)
Affirming a finding that an employee was not entitled to benefits, holding that there was substantial evidence to support the determination by MDES that the employee had voluntarily abandoned her job without finishing her assigned duties.
(6-4-0: No separate opinions – Wilson and Emfinger concurred in part and in the result; Westbrooks and McDonald concurred in result only)

Boyington v. State, 2022-KA-00601-COA (Criminal – Felony)
Affirming convictions of fleeing law enforcement and being a felon in possession of a firearm, holding that the trial court committed error in admitting a photograph of a swastika tattoo on the defendant’s body but that it was harmless error.
(7-3-0: No separate opinions – Wilson, Greenlee, and Smith concurred in part and in the result)

NOTE – Here is the Court’s summary of its analysis:

Wheeler v. Mississippi Limestone Corp., 2022-WC-00534-COA (Civil – Workers’ Comp)
Affirming the dismissal of a workers’ comp claim, holding that there was substantial evidence to support the Commission’s finding that it lacked subject matter jurisdiction because the claimant was neither hired nor regularly employed in Mississippi and that the employer did not assume liability for the injury by maintaining insurance under the MWCA.
(9-1-0: No separate opinions – McDonald concurred in the result only)

Other Orders

Clayton v. State, 2021-KA-00505-COA (denying rehearing)

Kirk v. Newton, 2021-CA-00684-COA (denying rehearing)

Smith v. State, 2021-KA-01003-COA (denying rehearing)

Dawson v. Burgs, 2021-CA-01038-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 10, 2023

The Mississippi Supreme Court handed down two decisions today. Both are domestic relations cases involving with children (custody and visitation). Both are reversals (one reversed the Court of Appeals and affirmed the chancellor while the other reversed the chancellor). Both are authored by Justice Beam.

Blagodirova v. Schrock, 2020-CT-01162-SCT (Civil – Custody)
Reversing a 4-2-4 Court of Appeals decision and reinstating and affirming the chancellor’s ruling in a custody matter, holding that there was substantial evidence in the record to support the chancellor’s finding of a material, substantial, and adverse change in circumstances that warranted custody modification.
(9-0)

NOTE – Here is the Court’s recap of the circumstances at issue:

Brownlee v. Powell, 2022-CA-00196-SCT (Civil – Domestic Relations)
Reversing the chancellor’s decision on an unmarried, non-parent, former live-in partner’s petition for in loco parentis visitation rights, holding that the chancellor erred in finding that the petitioner lacked standing without citing Mississippi law and in disposing of the case under 12(b)(6); that there was no plain error in the chancellor considering text messages without allowing other evidence; and that the chancellor erred in finding the petition frivolous and awarding attorney’s fees.
(6-3-0: Kitchens concurred in result only, joined by King and Griffis, and joined in part by Ishee.)

NOTE – The person seeking visitation won a trip back to the trial court, but I don’t read this opinion as blazing path to victory on the merits. Here are a few excerpts

and…

and…

and…

Other Orders

McPhail v. McPhail, 2020-CA-00739-SCT (denying petition construed by the Court as one for rehearing as untimely)

Moreland v. Spears, 2021-CT-00714-SCT (denying cert)

Norwood v. State, 2021-KA-00903-SCT (denying rehearing)

Brooks v. Jeffreys, 2021-CT-01113-SCT (denying cert)

Simoneaux v. State, 2022-CT-00532-SCT (dismissing cert petition)

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