Blogging summaries of Mississippi Supreme Court and Mississippi Court of Appeals decisions and legal miscellany
Author: Madison Taylor
Shareholder at Wilkins Patterson in Mississippi handling appeals as well as all stages of liability and workers' compensation matters. Admitted to the bar in Mississippi, Tennessee, and North Carolina.
We will call the blog post title a belated April Fools’ Day joke because the Mississippi Supreme Court did not hand down any opinions today. In the absence of an opinion to summarize, I thought I would share some #AppellateTwitter cringe content that surfaced today.
No litigator likes to lose. Some losses are more frustrating than others. Motions for reconsideration and motions for rehearing are difficult to write and they demand finesse. I would submit that the tack taken by the appellant’s counsel described in per curiam decision from the Fifth Circuit below did not supply the requisite measure of finesse. As tweeted by attorney David R. Fine (who is not the appellant’s counsel referred to in the order):
The road to a great motion for reconsideration/motion for rehearing is not the easiest, but overtly insulting the court and court staff is a relatively easy ditch to avoid.
But Twitter did what Twitter does and stirred up some good commentary on how to approach motions for reconsideration/rehearing.
I like this description of an effective tone for a motion for reconsideration. https://t.co/8zS8um6okV
The Mississippi Court of Appeals handed down two opinions today, one criminal and one civil. The criminal opinion affirmed a conviction, finding no merit on a litany of issues. The civil opinion affirmed summary judgment on a breach of contract claim based on a personal guaranty included in a credit application with a business’s supplier.
Barnes v. State, 2021-KA-00404-COA (Criminal – Felony/Hearsay/Jury Instructions/Rule 404(b)) Affirming conviction of two counts of fondling, holding (1) no error in jury instruction re: sufficiency of unsubstantiated/uncorroborated, but not contradicted/discredited, testimony of victim of a sex crime to support guilty verdict; (2) no error in allowing testimony by investigator “based on professional experience” because not expert opinion; (3) error in allowing hearsay was harmless because the same information was also introduced through admissible source; (4) Rule 404(b) objection re: other students who reported misconduct waived because not made contemporaneously and because it showed why the school initiated an investigation; (5) no error in admitting recorded conversations between victim and defendant where intelligible recording was not produced until the first day of trial (at least partially because defense did not request more time to prepare); (6) no error in admitting purported statement of the defendant over discovery violation objection because the statement had produced in discovery and defense counsel admitted being familiar with it; (7) no merit to ineffective assistance of counsel claim; and (8) the evidence was sufficient to support the convictions. The court of appeals invoked the plain error doctrine to remand the case for correction of a scrivener’s error in the sentencing order. (Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge McCarty concurred in result only without separate written opinion.)
Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (Civil – Contract/Personal Guaranty/Affirmative Defenses) Affirming the circuit court’s grant of summary judgment in favor of the plaintiff/supplier, holding that there was no error in finding that the owners of a company had personally bound themselves to pay their company’s debt to the plaintiff/supplier per the terms of a credit application that contained a personal guaranty. The court of appeals noted that the defendants did not attach affidavits in response to the summary judgment motion that addressed the guaranty:
The court of appeals then held that the plaintiff/supplier–a secured creditor– had no duty to mitigate before filing a lawsuit for damages and that the defendant that asserted fraud in response to the motion for summary judgment had waived that affirmative defense by failing to plead it in his answer to the complaint. (All judges concurred.)
Other Orders
Hartzler v. Bosarge, 2019-CT-01606 (granting motion to dismiss appeal as interlocutory)
Doe v. Doe, 2020-CA-00853-COA (denying motion for rehearing)
Braswell v. Braswell, 2020-CA-01090-COA (denying motion for rehearing)
Nunn v. State, 2021-TS-01371-COA (granting pro se motion for out-of-time appeal and granting motion to withdraw and substitute counsel)
The Mississippi Supreme Court handed down five opinions today. I think Weber v. Estate of Hill will be a frequently cited case on the issue of medical expert causation testimony, especially in the medical malpractice context. There is also an insurance coverage decision (where the court granted interlocutory appeal and then affirmed the circuit court), another medical malpractice case dealing with a hospital’s lack of liability for treatment plans of independent physicians, a contempt of youth court case, and a Mississippi Bar disciplinary decision.
Donaldson v. Cotton, 2020–CA-00581-SCT (Civil – Other/Contempt) Vacating the a youth court judge’s order of contempt against a county prosecutor fining him for past and continuing refusal to draft youth court orders, holding that youth court judges have inherent authority to order a county prosecutor to prepare orders in youth court matters but that the alleged contempt was constructive criminal contempt and thus the attorney’s due process rights were violated. The order was vacated, the case was remanded, and the youth court judge was direct to recuse for further proceedings. (Justice Coleman dissented, joined by Chief Justice Randolph and Justice Beam.)
Weber v. Estate of Hill, 2020-CA-00293-SCT (Civil – Medical Malpractice/Causation/Experts) Denying rehearing and and modifying two paragraphs (¶ 37 and ¶ 38) of the original opinion. On direct appeal, the supreme court affirmed the circuit court’s denial of the defendants’ motion for JNOV that argued there was no admissible expert testimony on causation, holding that the testimony of one of the plaintiff’s medical experts provided a basis for a juror to reasonably conclude that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome even though that expert testified that he lacked the expertise necessary to quantify the degree to which the labor and delivery process aggravated the injury. On cross appeal, the supreme court reversed the circuit court’s reduction of the jury’s $2,538,322 award for non-economic damages, holding that this action filed in December 2002 was governed by Mississippi’s wrongful-death statute because the medical-malpractice noneconomic-damages cap was not in place until September 1, 2004. (Justice Griffis dissented, joined by Justice Coleman and Justice Maxwell. Chief Justice Randolph did not participate.)
NOTE: This was a big win for the plaintiff and it is a must-read case on medical expert causation testimony, especially in the medical malpractice context. I have not read the record, but my understanding from the majority opinion and the dissent is that no expert specifically testified that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome. Instead, the supreme court allowed the jury to “connect the dots” (the “dots” being other pieces of expert testimony) in determining that the plaintiff satisfied that causation standard even though the plaintiff’s obstetrics and maternal-fetal medicine expert testified he was not qualified to connect these dots and give an opinion as to the percentage aggravation would be.
Mississippi Farm Bureau Casualty Insurance Company v. Powell, 2020-IA-00432-SCT (Civil – Insurance/Coverage) On interlocutory appeal, affirming the circuit court’s denial of the insurance company’s motion for summary judgment seeking a declaratory judgment that it had no duty to provide coverage, no duty to defend/indemnify, and no duty to pay medpay benefits, holding that a fall from scaffolding that was erected on a trailer that was hitched to an insured pickup was an auto accident arising out of the use and ownership of the covered vehicles. (Justice Maxwell concurred in result only, joined by Justice Chamberlain and Justice Griffis, and joined by Justice Coleman in part.)
St. Dominic-Jackson Memorial Hospital v. Newton, 2020-IA-00494-SCT (Civil – Medical Malpractice) On interlocutory appeal, reversing the circuit court’s denial of the hospital’s motion for summary judgment, holding that the Mississippi law does not impose a duty on a hospital to require peer review of a treatment plan before allowing a doctor and patient to use its facilities. (Justice Kitchens dissented, joined by Justice King.)
PRACTICE POINT: This is less-than-ideal feedback to receive from the supreme court…
Other Orders
Howell v. State, 2020-CA-00868-SCT (directing the parties to file supplemental briefs on the following issue: Whether the Court should overrule Rowland v. State, 42 So. 3d 503 (Miss. 2010), and any other case in which, and to the extent that, we have held the fundamental rights exception to the procedural bars may be applied to the three-year statute of limitations codified by the Legislature in the Uniform Post-Conviction Collateral Relief Act)
Bryant v. Bryant, 2020-CT-00883-SCT (granting cert)
Newell v. State, 2020-CT-01137-SCT (denying cert)
Thornhill v. Walker-Hill Environmental, 2020-CT-01181-SCT (granting cert)
The Mississippi Bar v. Malone, 2021-BD-00467-SCT (suspending attorney Robert W. Malone for two years)
After a slow week on the opinion front the Mississippi Court of Appeals is back in action with eight opinions today. There is a domestic relations case dealing with a slew of arguments about child support and child custody, a criminal appeal addressing waiver of potential conflicts with codefendants being represented by a single attorney, a disability opinion, an unemployment opinion, and several PCR opinions.
Wallace v. Wallace, 2020-CA-01148-COA (Civil – Domestic Relations/Custody/Child Support) Affirming the chancellor’s decisions related to a series of motions related to child support and custody modification: 1. No error in finding the father in arrears for child support for the period of time during which the mother had voluntarily modified the custody arrangement, but not the child support arrangement. 2. No error in finding the father in arrears for nonapyment of daycare and after-school expenses even though the mother “stockpiled” receipts for years rather than presenting them every 30 days as required by the MDA. 3. No error in decision that the mother was not in contempt for withholding visitation in light of the “substantial discretion regarding contempt matters” afforded to chancellors and evidence in the record that visitation was never withheld. 4. No error in no awarding both parents the right to claim the children as dependents for tax purposes because in the absence of specific findings of fact the court assumes the chancellor resolved any factual disputes in favor of the appellee. 5. No error in declining to hold the mother in contempt over the aforementioned stockpiling of daycare/after-school receipts. 6. No error in awarding the mother attorney’s fees in light of the fact that the father was held in contempt. 7. No error in awarding just $1,000 in attorney’s fees to the father for the mother’s violation of the morals clause considering the discretion chancellor’s enjoy on such decisions. 8. No error in ordering the father to provide for the children’s health insurance considering the children’s loss of access to employment-related insurance after the mother’s job was eliminated due to COVID-19. (Judge Westbrooks and Judge McCarty concurred in part and in the result without separate written opinion)
Magee v. State and Haynes v. State, 2020-KA-01378-COA (Criminal – Felony/Waiver of Potential Conflicts/Dual Representation/Sufficiency of the Evidence/Jury Instructions) Affirming convictions of co-defendants in consolidated appeals. The court of appeals affirmed the circuit court’s ruling giving the defendants what they asked for by allowing them to waive potential conflicts with being represented by the same attorney, finding that the defendants knowingly and intelligently waived the potential conflicts. The court of appeals held that the evidence was sufficient to support the convictions of both defendants for kidnapping and conspiracy, and the conviction of one defendant for sexual battery. Finally, the court of appeals held that there was no error in denying two of the defendants’ proposed jury instructions or in the circuit court’s sua sponte conspiracy instruction. (All judges concurred)
Hickerson v. State, 2021-CA-00176-COA (Civil – PCR) Affirming the circuit court’s denial of a petition for PCR, holding that there was no error in finding that the petition was procedurally deficient for failing to attach competent affidavits and that the claim of ineffective assistance of counsel was meritless. (Chief Judge Barnes concurred in part and in the result without separate written opinion; Judge Lawrence did not participate)
Barbour v. Singing River Health System Employees’ Retirement Plan and Trust, 2020-CA-01407-COA (Civil – State Board and Agencies/Disability) Affirming the chancellor’s decision denying disability benefits, holding that to the extent the chancellor’s reference to an incorrect standard of review was in error, it was harmless because the plaintiff was not an “employee” of Singing River at the time of his injury. (Judge Wilson concurred in part and in result, joined by Judge Smith and Judge Emfinger and in part by Judge McCarty)
Handyman House Techs, LLC v. Mississippi Department of Employment Security, 2021-CC-00029-COA (Civil – State Boards and Agencies/MDES) Affirming the circuit court’s decision affirming MDES’s determination that an applicant for unemployment benefits was a “employee” rather than an “independent contractor,” holding that the MDES Board of Review’s decision was not arbitrary or capricious. (Chief Judge Barnes and Judge McCarty concurred in part and in the result without separate written opinion)
Ford v. State, 2020-CP-00372-COA (Civil – PCR) Affirming the circuit court’s dismissal of a PCR motion, holding that the circuit court correctly ruled that the second PCR motion was an impermissible successive motion. (All judges concurred)
Thompson v. State, 2020-CP-01236-COA (Civil – PCR) Affirming the circuit court’s dismissal of a PCR, finding no merit to the claims that the indictment was defective, that the guilty plea was not knowingly and intelligently entered, that the defendant’s attorney had a conflict of interest and provided ineffective assistance of counsel, or that the defendant’s statement and the victim’s statement were coerced. (All judges concurred)
Booker v. State, 2018-CA-00664-COA (Civil – PCR/Miller) On rehearing, withdrawing a previous opinion and substituting an opinion holding that the circuit court did not err in determining that the defendant did not have a statutory right to be resentenced under Miller, that the circuit court did not err in denying the defendant’s request for parole eligibility, that the defendant was not deprived of an opportunity to be heard on the issue of rehabilitation, that the defendant failed to prove ineffective assistance of counsel, and that the sentence was not unconstitutional based on arguments about the defendant’s age and IQ.
Other Orders
Walker v. State, 2020-KA-228-COA (denying motion for rehearing)
The mix of beautiful spring weather and apocalyptic tornado warnings this week set the stage for just one opinion from the Mississippi Supreme Court to compliment the one opinion handed down by the Mississippi Court of Appeals on Tuesday. The case today is an insurance coverage dispute that analyzes several provisions of an excess policy and determines that summary judgment finding of no coverage under a pollution exclusion was in error.
Omega Protein, Inc. v. Evanston Insurance Company, 2020-CA-01097-SCT (Civil – Insurance/Insurance Coverage/Excess Insurance) The Supreme Court reversed the circuit court’s grant of the excess carrier’s motion for summary judgment in a dec action where the excess carrier sought a declaration of no coverage for injuries and a death sustained in a plant explosion that occurred while a contractor was performing welding work at the plant. The Supreme Court held that (1) a pollution exclusion did not apply as a matter of law because it was ambiguous and susceptible to more than one interpretation and must be construed in favor of coverage, (2) coverage under the excess policy was not triggered by the primary insurer paying out limits because there had been no adjudication of fault or negligence of the named-insured contractor, and (3) the issue of the plant’s status as an additional insured under the insured contractor’s excess policy could not be determined because there had been no adjudication of fault or negligence of the named-insured contractor. (All justices concurred)
Other Orders
Dooley v. Dooley, 2020-CA-01061-SCT (dismissing appeals filed by appellant and appellees for want of jurisdiction) Omega Protein, Inc. v. Evanston Insurance Company, 2020-CA-01097-SCT (denying motion for rehearing, withdrawing original opinion, and substituting the opinion above)
The Court of Appeals handed down one opinion today that is part MTCA decision on the open and obvious defense and part cautionary tale about the hazards of, and interplay among, Rules 54(b), 59(b), and 60(b) of the Mississippi Rules of Civil Procedure and Rule 3 of the Mississippi Rules of Appellate Procedure. Since I just had one opinion to wrestle with today I took a deeper dive into the timeline and the motions filed at the trial court level.
McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (Civil – Wrongful Death) Affirming in part the circuit court’s order granting summary judgment as to some defendants and dismissing the appeal as to the other defendants. The plaintiff’s decedent died of electrocution while moving a water pump on a State-aid culvert reinforcement project due a conflict with a utility line. The plaintiff filed suit against Pike County, Toles (the County’s State-aid engineer), Neel Schaffer (the engineer’s employer), and others not relevant to this appeal. The timeline is key to unpacking this opinion:
July 27, 2018: Summary judgment granted to Neel Schaffer’s because Toles was acting as a county employee and immune under the MTCA and that as a corollary Neel Schaffer, as Toles’s employer, was entitled to MTCA immunity. Final judgment entered as to the claims against Neel Schaffer using the magic words of Rule 54(b) (i.e. “final judgment” and “no just reason for delay”).
August 1, 2019: Summary judgment granted in favor of Toles on the claims against him in his individual capacity because it had previously determined Toles was entitled to MTCA immunity. Final judgment entered as to these claims.
June 18, 2020: The plaintiff filed a “motion to reconsider” the July 27, 2018, and August 1, 2019, summary judgments.
September 21, 2020: Plaintiff’s motion to reconsider was properly treated as a Rule 60(b) motion rather than a Rule 59(b) motion because it was filed more than ten days after the judgments had been entered, found to be untimely and meritless under Rule 60(b), and therefore denied.
October 28, 2020: Summary judgment granted as to the claims against Pike County and Toles in his official capacity, finding that they were entitled to immunity under the MTCA.
November 17, 2020: The plaintiff appealed from the summary judgments of July 27, 2018; August 1, 2019; and October 28, 2020, but not the September 21, 2020 denial of the motion to reconsider.
November 24, 2020: Neel Schaffer and Toles in his individual capacity filed a motion to dismiss the appeal as untimely.
November 25, 2020: The circuit court entered a final judgment as to the claims against Pike County and Toles in his official capacity.
December 4, 2020: Plaintiff filed an amended notice of appeal, again appealing only the summary judgments.
December 8, 2020: Neel Schaffer and Toles filed a second joint motion to dismiss the appeal as untimely.
The Court of Appeals first addressed the July 27, 2018, and the August 1, 2019, final judgments, and held that because the plaintiff did not file a motion to reconsider within ten days of either judgment or a notice of appeal within thirty days of either judgment, the plaintiff’s appeal of those judgments was untimely.
The Court of Appeals then addressed the dismissal of the claims against Pike County and Toles, holding that the circuit court did not err in finding that the dangerous condition was open and obvious, was not created by the government’s negligent maintenance or repair and it, and was not caused by Toles. The Court noted that the issue of whether a danger is open and obvious is usually a question for the trier of fact, but that there are cases where conditions are so clearly dangerous that the issue can be decided as a matter of law. The Court also held that neither Pike County nor Toles could be liable for causing a dangerous condition created by a third-party without notice and sufficient time to correct the dangerous condition:
(All judges concurred)
PRACTICE POINT: If you win summary judgment as to fewer than all claims/parties, request a 54(b) final judgment like the defendants did here. If the other side wins summary judgment as to fewer than all claims/parties, beware of a 54(b) final judgment that starts your appeal shot clock.
Other Orders
Wilson v. State, 2020-CP-00762-COA (denying motion for rehearing) Hardin v. Hardin, 2020-CA-1314-COA (denying appellee’s motion for appellate attorney’s fees) Jiles v. State, 2021-CP-34-COA (denying motion for rehearing)
The Mississippi Supreme Court handed down two opinions today. One is an interlocutory appeal of an order denying a motion to transfer venue centered around an incorrect address listed with the Secretary of State and the other is an initial, arbitration-agreement skirmish in a lawsuit Mississippi’s Community Mental Health Centers filed against United Health Care of Mississippi over a rate-cut dispute.
Weeks, Inc. v. Lewis, 2020-IA-01337-SCT (Civil – Personal Injury/Venue) Reversing the circuit court’s denial of the defendant’s motion to transfer venue, holding that venue based on a corporation’s principal place of business is determined by “the actual physical location” and expressly rejecting the plaintiff’s argument that venue was proper in a different county where the “principal address” listed in the defendant’s corporate filings with the Secretary of State is located. (All justices concurred)
United Healthcare of Mississippi Inc. v. Mississippi’s Community Mental Health Commissions, 2020-CA-00697-SCT (Civil – Contract/Arbitration/Preliminary Injunction) Affirming the circuit court’s ruling enjoining the Medicaid service provider from imposing a 5% rate cut and denying its motion to compel arbitration in a lawsuit filed by Mississippi’s Community Mental Health Centers (CMHC), holding (1) that trial courts have authority to enter preliminary injunctions even when there is an enforceable arbitration agreement, (2) that the record supported the trial court’s finding of a substantial likelihood that the service provider violated Miss. Code Ann. § 43-13-117(H)(1)(c) which governs Medicaid payment rates, and (3) that the trial court did not err in finding that the arbitration agreement was enforceable because it was not signed by a single CMHC board. (All participating justices concurred; Justice Beam did not participate)
Other Orders
Golden v. State, 2019-CT-00757-SCT (denying cert petition) M.A.S. v. Lamar County Department of Child Protective Services, 2020-CT-70-SCT (denying cert petition) Alexander v. State, 2020-CT-177-SCT (denying cert petition) Smith v. State, 202o-CT-580-SCT (denying cert petition and amended cert petition) Gordon v. Dickerson, 2020-CT-601-SCT (granting cert petition) Badger v. State, 2020-M-646 (denying “Motion to Reinvest Jurisdiction Into The Circuit Court of Amite County” and warning that future filings deemed frivolous may result not only in monetary sanctions, but also restrictions on filing applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis)
The Mississippi Court of Appeals dropped nine opinions today including upheld convictions, dismissal of a civil case for discovery violations, a workers’ comp appeal, petitions for custody modification, and a couple of of PCR motions.
Davis v. State, 2020-CP-00283-COA (Civil – PCR) Affirming the circuit court’s denial of a pro se motion for PCR, holding that the circuit court did not err in finding that the claim of ineffective assistance of counsel was procedurally barred. (All judges concurred)
Fluker v. State, 2021-CP-00162-COA (Civil – PCR) Affirming the circuit court’s denial of a pro se motion for PCR (the plaintiff’s fourth such effort), holding that the plaintiff waived any procedural defects in his indictment when he pleaded guilty and that his claim based on the circuit clerk’s failure to stamp “filed” on the indictment was therefore procedurally barred. (All judges concurred)
Mize v. Shiloh Market, Inc., 2020-CP-01119-COA (Civil – Personal Injury/Rule 37/Rule 60(b)) Affirming the dismissal of a trip-and-fall lawsuit based upon the plaintiffs’ failure to cooperate in discovery, holding that it was within the circuit court’s discretion to dismiss the claims after the plaintiffs’ failed to respond to the defendant’s discovery after the deadline set by a consent order granting the defendant’s motion to compel discovery responses and to deny the plaintiffs’ Rule 60(b) motion. (Judge Westbrooks and Judge McDonald concurred in result only without separate written opinion).
Addendum – COVID and the Law: Neither the circuit court nor the court of appeals was persuaded by the plaintiffs’ Rule 60(b) motion argument that their discovery responses were not served because of attorney was having issues, including some COVID-related, constituted “exceptional circumstances”:
Kreppner v. Kreppner, 2021-CA-00006-COA (Civil – Domestic Relations/Child Custody Modification) Affirming the chancellor’s denial of the mother’s motion to modify the terms of an agreed custody order, holding that the father’s remarriage and the resulting changes in the minor’s life did not constitute a “material change in circumstances” and that the Riley test did not apply because there was no evidence of genuinely adverse circumstances.” (Judge Westbrooks concurred in result only without separate written opinion)
Butler v. State, 2020-KA-00806-COA (Criminal – Felony/Culpable Negligence Manslaughter) Affirming conviction of culpable negligence manslaughter stemming from a boat collision, holding (1) that the circuit court did not err in granting the State’s motion in limine excluding evidence about the other driver’s prior drug use, (2) that the State presented sufficient evidence for the conviction without regarding to any intoxication argument because there was evidence that the defendant violated five boating rules leading up to the collision, and (3) that the weight-of-the-evidence argument was procedurally barred and meritless. (Judge Lawrence wrote a special concurrence joined by Judge Greenlee, Judge McDonald, and Judge McCarty)
Wall v. Wall, 2020-CA-01182-COA (Civil – Domestic Relations/Child Custody Modification) Affirming the chancery court’s involuntary dismissal of the father’s petition for child custody modification, holding that the chancellor did not err in dismissing the petition under Rule 41(b) at the conclusion of the hearing because the father did not prove a material change in circumstances and that the lack of specific discussion of the father’s concerns about the mother’s alcohol use did not mean the issue was overlooked such that the chancellor failed to consider the totality of the circumstances. (Judge Lawrence concurred in result only without separate written opinion)
Hawkins v. State, 2020-KA-01263-COA (Criminal – Felony/DUI) Affirming conviction of two counts of aggravated DUI after the defendant’s appellate counsel filed a Lindsey brief and the defendant elected not to file a supplemental brief pro se. (All judges concurred)
Texas Mutual Insurance Company v. Vaughters, 2021-WC-00364-COA (Civil – Workers’ Compensation/Jurisdiction) Dismissing an appeal from the MWCC, holding that the Commission’s order vacating the AJ’s order and remanding for a determination as to compensability, coverage, and jurisdiction was not a final, appealable judgment. (All judges concurred)
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)
Other Orders
Robertson v. Houston, Mississippi Public School District, 2020-CA-931-COA (denying motion for rehearing) Hardin v. Hardin, 2020-CA-1314-COA (denying motion for rehearing) Butler v. State, 2021-CA-337-COA (granting State’s motion to dismiss for lack of appealable judgment) Evans v. State, 2021-TS-1423-COA (allowing appeal to proceed without prejudice to State’s ability to rebut presumption that notice of appeal was timely)
The folks publishing the hand down lists are not on spring break. There were four opinions today that are must-reads for anyone whose law practice these opinions touch. There is a medical malpractice/expert testimony decision, a dismissal for failure to prosecute decision that is more about the abuse-of-discretion standard of review, a breach of commercial lease opinion, and a will probate opinion.
Claiborne County Hospital v. Truitt, 2020-IA-01017-SCT (Civil – Medical Malpractice/Summary Judgment/Experts) The plaintiff fell while walking to the restroom to give a urine sample. The plaintiff filed a negligence claim against the hospital, alleging that a nurse failed to assist him to the restroom. The hospital filed a motion for summary judgment on the grounds that the plaintiff lacked medical expert testimony. The plaintiff argued that the layman’s exception applied or, alternatively, that the plaintiff had identified the requisite expert testimony in an interrogatory answer. The circuit court denied the hospital’s motion for summary judgment and the Supreme Court granted interlocutory appeal. The Supreme Court reversed the circuit court and rendered judgment in favor of the hospital, holding that “the layman’s exception does not apply to the facts of this case because Truitt’s claim involves the rendering of medical services and a nurse’s professional judgment for which expert testimony is required.” The Supreme Court also held that the designation via interrogatory answer was insufficient because the “designation does not provide sworn expert testimony” and noting that the plaintiff “only provided the name of his expert and a brief description of the anticipated testimony.” (All justices concurred)
Leasy v. SW Gaming, LLC, 2019-CT-01505-SCT (Civil – Personal Injury/Failure to Prosecute/Standard of Review) Reversing the Court of Appeals and reinstating the circuit court’s judgment dismissing the plaintiff’s claim for failure to prosecute, holding that the Court of Appeals improperly reweighed the evidence and reaffirming the controlling abuse-of-discretion standard. (Justice King dissented, joined by Justice Kitchens. Justice Beam did not participate in the decision) (Note: At the Court of Appeals level, Judge Carlton wrote a dissent that was joined by Judge Wilson)
Practice Point – Standards of review matter! The Mississippi Supreme Court has shown a renewed interest in standards of review. This opinion is more about the standard of review than it is about the failure to prosecute. The Supreme Court described the Court of Appeals’ incorrect application of the standard of review as follows:
The Supreme Court bluntly concluded:
Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. v. 400 South Lamar Oxford Mad Hatter Partners, LLC, 2019-CT-01702-SCT (Civil – Real Property/Landlord-Tenant Law/Commercial Real Estate) Affirming the circuit court’s denial of the tenant’s motion for partial summary judgment seeking a dismissal of the landlord’s claims for back rent, holding that the landlord’s demand for possession and the tenant’s departure from the premises did not prevent the landlord from recovering back rent; affirming the circuit court’s grant of summary judgment to the landlord based upon material breaches by the tenant; affirming the Court of Appeals’ finding that the tenant’s mitigation argument was waived because it was not raised prior to the appeal; affirming the Court of Appeals’ decision granting the landlord’s motion to quash the tenant’s request for records related to a news story a spat between the landlord’s principal and another developer because those records were not relevant to the appeal; and affirming the circuit court’s denial of the tenant’s untimely motion to amend to add claims of libel and libel per se because they were delayed and barred by the one-year statute of limitations. (All participating justices concurred.)
In the Matter of the Last Will and Testament of Luke Beard, Deceased: Antonio Christmas v. Diane Christmas, 2019-CT-01821-SCT (Civil – Wills, Trusts, and Estates/Probate) Reversing the court of appeals and reinstating the chancery court’s dismissal of a petition to probate a purported will, holding that in the absence of the testimony of at least one subscribing witness, a proponent of a will must prove the handwriting of the testator and at least two subscribing witnesses. This unanimous, textualist decision centered around whether the phrase “or some of them” in section 91-7-7 referred to the subscribing witnesses or collectively to the testator and the subscribing witnesses. Ultimately, the Supreme Court adopted Judge Wilson’s analysis of the textual quandary from his dissent at the Court of Appeals, holding:
The Mississippi Bar v. Henderson, 2021-BD-01141-SCT (Civil – Bar Matters) Imposing a reciprocal public censure to an attorney publicly censured in Tennessee and assessing costs.
Other Orders
Dille v. State, 2019-CT-00855-SCT (denying petitions for cert) Lairy v. Chandler, 2019-CT-01423-SCT (granting petition for cert) Cork v. State, 2020-KA-00060-SCT (denying pro se motion for rehearing) Magnolia Health Plan, Inc. v. Mississippi’s Community Health Commissions, 2020-CA-00167-SCT (denying motion for rehearing)
The Mississippi Court of Appeals handed down six opinions today with a little something for everybody. There are two real-property decisions, two PCR denials, one criminal conviction affirmed, and an MTCA/12(b)(6) decision.
DeSoto County v. Vinson, 2021-CA-00122-COA (Civil – Real Property/Division of Subdivision Lot) Affirming the circuit court’s decision reversing a DeSoto County Board of Supervisors decision regarding the division of a subdivision lot into two separate residential lots, holding that the circuit court did not err in ruling that the properly owner should resubmit an application to divide property with written approval of “adversely affected” and “directly interested” parties or proceed under section 19-27-31 in chancery court. (All judges concurred)
Land v. Land, 2021-CA-00402-COA (Civil – Real Property/Partition of Property) Affirming the chancellor’s denial of complaint for partition, holding that chancellor did not err in ruling that the residential property claimed as homestead property by one party could only be partitioned by written agreement of the parties and could not be involuntarily partitioned by chancery court decree. (All judges concurred)
Bridges v. State, 2020-CA-00816-COA (Civil – PCR) Affirming the circuit court’s denial of a motion for post-conviction relief, holding that the circuit court did not err in finding that there was insufficient evidence to prove that the second PCR motion satisfied a statutory exemption to procedural bars and that the evidence did not show good cause for failing to provide additional affidavits. (Judge Westbrooks concurred in part and in result, joined by Judge McDonald and Judge Lawrence, and joined in part by Judge McCarty)
Jackson v. State, 2021-KA-00292-COA (Criminal – Felony) Affirming conviction of sexual battery and filming a minor engaging in sexually explicit conduct and a sentence to serve consecutive terms of thirty years and forty years, holding that there were no arguable issues for appeal based upon a Lindsey brief and the Court’s independent review of the record. (All judges concurred)
Horton v. State, 2021-CP-00383-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in ruling that the sentence was not unconstitutional and that his confession was voluntary. (All judges concurred)
J.D. v. McComb School District, 2020-CA-00022-COA (Civil – Personal injury/Civil Procedure/12(b)(6)) Reversing the circuit court’s ruling granting the defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, holding that the plaintiff’s allegations that a minor was attacked at school and that the school district had knowledge of similar conduct by the attacker and breached its ministerial duty to use ordinary care and to take reasonable steps to minimize foreseeable risk to the plaintiff. (Judge Smith dissented, joined by Judge Greenlee and Judge Lawrence and joined in part by Judge Emfinger)
Practice Point: In footnote 6, the majority opinion addressed and rejected the dissent’s argument that the plaintiff should have included additional details regarding the alleged prior conduct of the attacker, summarizing the liberal pleading requirements of Rule 8:
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