Madison Taylor

Mississippi Court of Appeals Decisions of November 29, 2022

The Mississippi Court of Appeals returned from Thanksgiving break with five opinions. Two cases are medical malpractice cases (one an appeal of summary judgment for lack of expert testimony and the other an appeal of a denied motion to compel arbitration). Two are criminal cases, and the other case is a custody case with cross motions for modification and a motion for contempt.

Davis v. State, 2021-KA-00908-COA (Criminal – Felony)
Affirming conviction of first-degree, deliberate design murder, holding that the trial court did not abuse its discretion in limiting the defense’s cross-examination of a detective to exclude testimony about other investigations and noting that the Confrontation Clause does not open the door to irrelevant testimony on cross-examination.
(10-0)

Mixon v. Berry, 2021-CA-00494-COA (Civil – Medical Malpractice)
Affirming summary judgment in favor of a doctor in a med mal case for lack of medical expert testimony, holding that summary judgment was proper because the plaintiff failed to produce sworn expert testimony to establish the applicable standard of care, breach, and proximate cause, and that the trial court did not err in not granting a 56(f) continuance that was not requested or in denying the motion for reconsideration.
(10-0)

Practice Point – Here is some useful black-letter law from this opinion:

Turnage v. State, 2021-KA-01229-COA (Criminal – Felony)
Affirming conviction of a high school teacher of two counts of sexual battery of a student, holding that there were no issues warranting reversal after reviewing appellate counsel’s Lindsey brief and independently reviewing the record.
(10-0)

Lamy v. Lamy, 2021-CA-00770-COA (Civil – Custody)
Affirming in part and reversing in part the chancery court’s rulings on competing complaints for modification and a motion for contempt, holding that the chancellor did not err in admitting evidence used by the GAL and attached to her report, did not err in classifying one agreed custody order as temporary but did err by interpreting that order as awarding sole physical custody to the mother, and did not err in not finding the mother in contempt.
(5-1-4: Judge McDonald concurred in part and in the result without separate written opinion; Chief Judge Barnes, Judge Westbrooks, and Judge McCarty concurred in part and in dissent in part without separate written opinion; Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Westbrooks, and Judge McCarty, and joined in part by Judge McDonald.)

Note – In response to the motion for contempt, the mother pleaded COVID in her explanation of why she kept the children during the father’s period of custody. The dissent didn’t buy the excuse:

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration in a wrongful death case, holding that the evidence in the record supported the trial court’s finding that the resident lacked the mental capacity to sign the nursing home’s arbitration agreement on the date of admission, that the resident’s daughter did not have authority to sign as his agent, and that the proof was sufficiently clear to affirm the trial court’s denial of the facility’s request for arbitration-related discovery.
(7-3: Judge Carlton dissented, joined by Judge Wilson and Judge Lawrence.)

Other Orders

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (denying rehearing)

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Happy Thanksgiving!

Due to the Thanksgiving holiday, the Mississippi Supreme Court will not be handing down any opinions today. But I did not want to leave you empty-handed so here is a throwback opinion suitable for the season.

Revette v. State, 48 So. 2d 511 (Miss. 1950)
Reversing the circuit court in favor of the defendant accused of the unlawful possession of intoxicating liquors, holding that the “beaten path doctrine” did not apply where the beaten path at issue led from the defendant’s turkey pen to a wooded area where a one-gallon keg of whiskey was found but did not terminate at or near the whiskey.

Many thanks to all who have visited this blog on occasion! I truly appreciate the interest and the encouragement I have received in this endeavor.

Mississippi Court of Appeals Decisions of November 22, 2022

The Mississippi Court of Appeals handed down six opinions before making a break for the turkey this week. There is a custody case reviewing a contempt order related to visitation rights, a civil asset forfeiture case, a previously-decided MTCA wrongful death case with a substituted opinion, a real property contract case with a claim by the would-be purchaser for specific performance or damages, and a couple of PCR cases.

Kay v. Kay, 2021-CA-01377-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancery court’s contempt ruling, holding that there was substantial credible evidence supporting the finding of the father willfully failed to comply with visitation guidelines and denied the mother visitation rights but reversing the part of the order directing the children to report to jail if they chose not participate in future scheduled visitation with their mother.
(10-0)

McDonald v. State, 2021-CP-01040-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the circuit court had jurisdiction to resentence the plaintiff and that there was no merit to the claims that the guilty plea was not voluntary or for ineffective assistance of counsel.
(1o-0)

Parker v. State, 2021 -CP-01102-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the plaintiff did not overcome the time bar, there was no merit to his claims that he was wrongly sentenced as a habitual offender, and the illegal-sentence claim was waived by meritless anyway.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Forty-One Thousand Eighty Dollars v. State, 2021-CA-00692-COA (Civil – Other/Civil Asset Forfeiture)
Affirming seizure of case, holding that the funds were subject to forfeiture, the argument that the K-9 alerted to the cash because the case was contaminated was unpersuasive, and that the forfeiture was not grossly disproportionate.
(8-1-0: Judge Westbrooks concurred in the result only without separate written opinion; Judge Emfinger did not participate.)

Simmons v. Jackson County, Mississippi, 2020-CA-01014-COA (Civil – Wrongful Death)
Denying a motion for rehearing but substituting a new opinion, but still affirming circuit court’s ruling that the county bore no responsibility for a driver’s fatal accident that occurred when his vehicle left the road and struck a culvert, holding that there was sufficient evidence to support the circuit court’s finding that the driver’s negligence in failing to exercise vigilant caution as he drove through a work zone was the sole proximate cause of the accident.
(7-3: Judge Westbrooks dissented, joined by Judge Carlton and Judge McDonald.)

NOTE – Since the old opinion is no longer available, I am not sure what changed. Apparently what I took away as the core holding did not change because my prior summary still seems to fairly characterize the opinion.

Haidar v. Margetta, 2021-CA-00683-COA (Civil – Contract)
Reversing the chancery court’s dismissal of a purchaser’s claim for specific performance or damages after the seller refused to honor the contract after the initial closing date passed, holding that time is not automatically of the essence in real estate transactions and there was no evidence in the record to establish that time was of the essence here.
(6-1-3: Judge Westbrooks concurred in part and in the result without separate written opinion; Judge Greenlee dissented, joined by Chief Judge Barnes and Judge Carlton, and joined in part by Judge Westbrooks)

Other Orders

Murry v. State, 2020-KA-01363-COA (denying rehearing)

Wilson v. Lexington Manner Senior Care, LLC, 2021-CA-00072-COA (denying rehearing)

Wilson v. City of Greenville, 2021-CA-00316-COA (denying rehearing)

White v. White, 2021-CP-00333-COA (denying rehearing)

Beasley v. State, 2021-CA-00653-COA (denying rehearing)

Mitchell v. MDES, 2021-CC-00795-COA (denying pro se motion for rehearing as untimely)

Norwood v. State, 2021-CA-00802-COA (denying rehearing)

Patrick v. State, 2022-TS-00683-COA (dismissing appeal as moot)

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Mississippi Supreme Court Decisions of November 17, 2022

I did not post Court of Appeals decisions on Tuesday because I was in an all-day deposition and went from there to a pinewood derby. I will try to catch up on those later. But today the Mississippi Supreme Court handed down two opinions. One deals with the MTCA’s venue provisions in a wrongful-death case and the other disposes of an appeal of felony convictions and sentencing with an interesting Fourth Amendment analysis.

Jones County v. Estate of Bright, 2021-IA-00631-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of venue change in an MTCA case stemming from a police chase that killed a bystander, holding on interlocutory appeal that under the MTCA venue was only proper in the counties where the administrative offices of the political-subdivision defendants are located (Jones or Lauderdale), and not where the acts or omissions occurred (Pearl River) because the state was not a named defendant.
(8-0: Chief Justice Randolph did not participate)

Fisher v. State, 2021-KA-00828-SCT (Civil – Felony)
Affirming convictions of drug possession and trafficking charges and sentencing as a habitual offender, holding that the defendant was not denied the right to testify on his own behalf where the record was silent as to whether he wanted to testify, that there was no Fourth Amendment search when officers climbed a ladder in a common area with the building owner’s permission to look into the defendant’s ceilingless storage unit, and that resentencing was not necessary because the trial court imposed the mandatory minimum for the aggravated trafficking conviction not on his habitual offender status that was determined without sufficient evidence.
(9-0)

Other Orders

In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (granting Petition of the Mississippi Commission on Continuing Legal Education allowing attorneys to complete their CLE obligations set forth in Rule 3 through online, webinars or live, in-person programs for the 2022-2023 CLE reporting year)

In Re: Rules Governing Admission to the Mississippi Bar, 89-R-99012-SCT (granting Petition to Amend the Rules Governing Admission to the Mississippi Bar filed by the Mississippi Board of Bar Admissions; denying Petition to Amend Rule IV §8 of the Rules Governing Admission to the Mississippi Bar filed by Jefferson Carl Harvey on April 21, 2022 and the Emergency Petition to Amend Rule IV Section 8 of the Rules Governing Admission to the Mississippi Bar filed by Applicant 11596 on June 25, 2021; and dismissing Petition for Ruling Regarding Motion #2022-1321 A/K/A “Petition to Amend the Rules Governing Admission to the Mississippi Bar” filed by Jefferson Carl Harvey on October 31, 2022)

Rules for Court Reporters, 89-R-99021-SCT (amending The Rules and Regulations Governing Certified Court Reporters)

Beale v. State, 2020-CT-00614-SCT (granting cert)

Devine v. Cardinal Health 101, LLC, 2020-CT-01101-SCT (granting joint motion to suspend cert proceedings and dismiss cert petition as moot)

Adams v. State, 2020-CT-01383-SCT (denying cert)

Adams v. State, 2020-CT-01383-SCT (denying pro se cert petition)

Watts v. State, 2021-KA-00873-SCT (denying rehearing)

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Mississippi Supreme Court Decisions of November 10, 2022

The Mississippi Supreme Court handed down two interesting opinions today. One dealt the final blow in a lawsuit a former judge of the Mississippi Court of Appeals filed against a sitting US Congressman. The other is a case of first impression dealing with the federal Anticybersquatting Consumer Protection Act.

James v. Thompson, 2021-CA-00458-SCT (Civil – Other)
Affirming dismissal of a lawsuit against a U.S. Congressman, holding Mississippi law does not provide relief for the plaintiff’s claims of tortious interference with the election and her job as a judge on the Mississippi Court of Appeals.
(4-0: Justice Kitchens, Justice King, Justice Coleman, and Justice Griffis did not participate)

NOTE – The plaintiff’s claim stemmed from a “sample ballot” distributed by Congressman Thompson:

Carr v. Mississippi Lottery Corporation, 2021-CA-01304-SCT (Civil – Other)
Affirming the trial court’s decisions in a case of first impression interpreting and applying the federal Anticybersquatting Consumer Protection Act, holding that the plaintiff failed to prove that he lawfully registered and used five domain names that infringed on the Mississippi Lottery mark under the ACPA and that the trial court did not err in consolidating the hearing for preliminary injunction with a trial on the merits, by denying the plaintiff’s motion for leave to file an amended complaint, or by denying the plaintiff’s motion to dissolve or modify the permanent injunction.
(9-0)

Other Orders

In Re: Advisory Committee on Rules, 89-R-99016-SCT (authorizing and directing the disbursement of $20,000.00 from the Court’s Judicial System Operation Fund to the Mississippi Supreme Court Advisory Committee on Rules for its necessary work through September 30, 2023)

Manning v. State, 2020-CA-01096-SCT (denying rehearing)

Wall v. Wall, 2020-CT-01096-SCT (denying cert)

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CT-01277-SCT (denying cert)

Wofford v. State, 2020-CT-01341-SCT (denying cert)

James v. Thompson, 2021-CA-00458-SCT (denying motion for sanctions for frivolous appeal)

Unifund CCR Partners v. Estate of Jordan, 2021-CT-00761-SCT (denying cert)

Harris v. State, 2022-M-00417 (vacating sentence to serve a term of life without parole and remanding to the trial court for resentencing)

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Mississippi Court of Appeals Decisions of November 8, 2022

The Mississippi Court of Appeals covered a lot of territory in six opinions handed down today. They areas covered include divorce, criminal issues, MTCA police-protection immunity, third-party liability for work injuries, criminal, and one PCR case for good measure.

King v. State, 2021-CA-01145-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that there was no merit to the claim that his guilty plea was not voluntary or to his ineffective assistance claim.
(9-0: Judge Emfinger did not participate)

Owens v. State, 2021-KA-01256-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm after receiving a Lindsey brief, receiving no pro se brief, and reviewing the record and concluding no issue warranted reversal.
(9-0: Judge Smith did not participate)

Blount v. State, 2021-KA-00204-COA (Criminal – Felony)
Affirming conviction of possession of meth after a jury trial in absentia, holding that the trial court did not abuse its discretion in denying the defendant’s request for a continuance after concluding that the defendant waived his right to be present at trial.
(7-1-2: Judge Wilson concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion; Judge McCarty dissented, joined in part by Judge McDonald.)

Practice Point – Don’t possess meth and then miss your trial date. As Bob Dylan reminds us, “To live outside the law, you just be honest.”

Alves-Hunter v. Hunter, 2021-CA-00644-COA (Civil – Domestic Relations)
Affirming decisions in a divorce proceeding, holding that the chancellor did not commit reversible error in awarding the father standard visitation with their child, dividing the martial estate, or denial of attorneys fees after a contempt finding.
(10-0)

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (Civil – State Boards and Agencies/MTCA)
Affirming judgment for the defendants in a personal injury case brought under the MTCA stemming from a police chase, holding that the circuit court did not err in finding that the police officer did not act with reckless disregard and that the City was entitled to police-protection immunity.

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (Civil – Workers’ Comp)
Reversing summary judgment in favor of a defendant in a third-party lawsuit arising from a workers’ comp injury, holding that the defendant at issue was not an “up the line” contractor but instead was the owner of the project and was therefore a third-party not entitled to exclusive remedy immunity.
(6-4: Judge Carlton dissented, joined by Judge Greenlee, Judge McCarty, and Judge Smith.)

Practice Point – This is a fact-intensive opinion. It does not appear to disturb the general rule that “up the line” contractors are entitled to MWCA immunity as long as they are true contractors.

Other Orders

Moffett v. State, 2021-KA-00622-COA (denying rehearing)

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Mississippi Supreme Court Decisions of November 3, 2022

The Mississippi Supreme Court handed down no opinions today. The hand-down list had three orders, one was an interesting cert grant in a criminal case.

Powers v. State, 2017-DR-00696-SCT (denying the State’s Motion to Dismiss Petitioner’s Motion to Rehear the Court’s June 21, 2022 Order Denying Petitioner’s Motion to Hold PCR Proceedings in Abeyance)

Manuel v. State, 2020-CT-00711-SCT (granting cert)

Here is the COA opinion in Manuel v. State. The dissent's contention was limited to the sentencing as a habitual offender. Specifically, the dissent concluded that the habitual-offender portions of the sentence were not supported by sufficient evidence and should be reversed under plain error review.

Manuel v. State, 2020-KA-00711-COA (Criminal – Felony/Excited Utterance)
Affirming convictions and sentences for second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by (1) admitting testimony under the excited-utterance hearsay exception, (2) excusing a juror mid-trial for failure to disclose information during voir dire, (3) collecting the parties’ jury panel information sheets following jury selection and placing them under seal, or (4) sentencing the defendant as a habitual offender.
(Judge Westbrooks concurred in part and dissented in part, joined by Judge McDonald and Judge McCarty; Judge McDonald and Judge McCarty concurred in part and dissented in part without separate written opinion; and Judge Emfinger concurred in part and in the result without separate written opinion)

The cert petition led with the sentencing issue, but also raised issues related to the trial court's finding that certain defense witnesses' testimony was hearsay and not excited utterances and the trial court's admission of State witness testimony under that hearsay exception.

Edwards v. State, 2021-CT-00259-SCT (denying cert)

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Mississippi Court of Appeals Decisions of November 1, 2022

The Mississippi Court of Appeals kicked off November with eight opinions. There are two domestic cases dealing with custody and divorce, a personal injury case adjacent to a workers’ comp claim with a statute of limitation issue, two reversals in administrative cases (MDES and MDHS), two PCR cases, and one criminal case.

Jarvis v. State, 2021-CP-00930-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the plaintiff’s guilty plea waived his defective-indictment claim based on alleged insufficiency in the State’s evidence and that his ineffective assistance claim lacked merit.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion.)

Blagodirova v. Schrock, 2020-CA-01162-COA (Civil – Custody)
Affirming in part and reversing in part a chancellor’s child-custody modification order, holding that the chancery court manifestly erred by finding an adverse effect on the child, did not err in denying attorney’s fees, and did not abuse its discretion in denying a motion to compel completion of a financial disclosure statement.
(4-2-4: Judge Emfinger concurred in part and in the result without separate written opinion; Judge McCarty concurred in the result only without separate written opinion; Judge Carlton concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Greenlee, and Judge Smith.)

Baughman v. Baughman, 2021-CA-00074-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on an appeal and cross-appeal from a divorce proceeding, affirming denial of the ex-husband’s claim for separate maintenance, affirming the denial of divorce on the grounds of adultery, and reversing the denial of divorce on the ground of habitual cruel and inhuman treatment.
(5-4-0: Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson, Judge Greenlee, and Judge Lawrence concurred in the result only without separate written opinion; and Judge Carlton did not participate.)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (Civil – Personal Injury)
Affirming dismissal of certain claims as barred by the statute of limitations, holding that the plaintiff’s claims against a third-party (not the Employer, Carrier, or TPA) arising from the utilization review process in the course of his treatment for a workers’ comp injury were barred by the three-year statute of limitations.
(9-0: Judge Emfinger did not participate.)

NOTE – A critical aspect of this decision was that the lawsuit did not arise from the denial of workers’ comp benefits:

Bowman v. State, 2020-KA-01371-COA (Criminal – Felony)
Affirming conviction of second-degree murder and tampering with evidence, holding that the trial court did not err in allowing the state medical examiner to testify about the cause and manner of death, in denying motions to suppress evidence seized at the defendant’s Mississippi property and in his vehicle in Utah, in denying a flight-evidence motion in limine and giving a flight-evidence jury instruction, or in refusing the defendant’s request for additional circumstantial evidence instructions, and that the convictions were not against the overwhelming weight of the evidence and were based on sufficient evidence.
(7-2-0: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Smith did not participate.)

MDHS v. Reaves, 2021-SA-01133-COA (Civil – State Boards and Agencies)
Reversing the chancery court’s order directing MDHS to reimburse the plaintiff for past child-support payments, holding that reimbursement was improper because a noncustodial parent cannot recover the child-support payments he made on behalf of his child.
(7-3: Judge McDonald concurred in part and in the result without separate written opinion; Judge Wilson and Judge Westbrooks concurred in result only without separate written opinion.)

Wallace v. State, 2021-CP-01149-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second PCR petition, holding that the court did not err when it was not persuaded that the guilty plea lacked a factual basis and was involuntary, that the indictment was defective, or that counsel was ineffective.
(9-1-0: Judge Wilson concurred in the result only without separate written opinion.)

Vector Transportation Co. v. MDES, 2021-CC-00576-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s judgment affirming the MDES Board of Review’s determination that an employee was entitled to unemployment benefits, holding that the employer met its burden of proof to show that the employee’s termination was for misconduct.
(6-3: Judge McDonald concurred in part and dissented in part; Judge Westbrooks dissented, joined by Judge Wilson and joined in part by Judge McDonald; Chief Judge Barnes did not participate.)

Other Orders

Simpson v. State, 2021-KA-00075-COA (denying rehearing)

Terpening v. F.L. Crane & Sons, Inc., 2021-CA-00544-COA (denying rehearing)

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Mississippi Supreme Court Decisions of October 6, 2022 (Rewind)

I did not post summaries from the first week of October because I was out of town with my family doing something much more fun that summarizing opinions. This is a catch-up post. There was not a whole lot from the Mississippi Supreme Court that week, unless you are a digital photographer in which case it appears to have been a good week for you.

Mississippi Department of Revenue v. EKB, Inc., 2021-SA-00441-SCT (Civil – State Boards and Agencies)
Affirming the chancery court’s order vacating the Mississippi Department of Revenue’s sales tax assessment against a wedding photography business, holding that photography is not a taxable business activity (unlike film development and photo finishing) and that still digital images are not taxable digital products.
(8-0: Justice Coleman did not participate.)

NOTE – I am neither a tax lawyer nor a photographer, but this seems like quite a win for digital photographers. Here are some particulars about the photography business at issue that gives context for the decision.

Other Orders

Johnson v. State, 2015-CT-01064-SCT (dismissing cert petition)

Wayne County Sch. Dist. v. Quitman Sch. Dist., 2020-CA-00499-SCT (denying rehearing)

Butler v. State, 2020-CT-00806-SCT (granting cert)

Haynes v. State, 2020-CT-01397-SCT (denying cert)

Fluker v. State, 2021-CT-00162-SCT (dismissing cert petition)

In Re: Hon. James McClure, III and Hon. Gerald W. Chatham, Sr.; 2022-IA-00319-SCT (denying petition for writ of prohibition)

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