Category: Court of Appeals

Mississippi Court of Appeals Decisions of July 18, 2023

I am declaring an end to the hiatus caused by the tree falling on my house. That war rages on, but these decisions are not going to summarize themselves. I aspire to go back and summarize the decisions handed down while I was down, but I am going to prioritize summarizing new hand downs going forward.

On Tuesday, the Court of Appeals handed down four opinions. One is an appeal of a verdict in a med mal bench trial. The other three are PCR cases, one of which yielded a 5-1-4 split.

Singing River Health System v. Brand, 2022-CA-00090-COA (Civil – Med Mal)
Affirming judgment for the plaintiff in a med mal case against a hospital after a bench trial, holding that the hospital’s vicarious liability argument was procedurally barred because it not raised at the trial court level, that the plaintiff’s experts were qualified to testify about a breach of the standard of care and cause of death and provided sufficient evidence under the “lost chance of recovery” theory, and that there was substantial evidence to support the trial court’s findings.
(8-1-0: Wilson concurred in result only; Lawrence did not participate.)

Tate v. State, 2021-CP-01237-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err determining that there was no evidence showing that the plea of guilt was involuntary or that counsel was ineffective.
(9-0: Emfinger did not participate.)

Havercome v. State, 2022-CA-00391-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the motion was barred by the UPCCRA.
(10-0)

Love v. State, 2021-CP-01101-COA (Civil – PCR)
Affirming dismissal of motion for PCR, holding that the trial court did not err in finding that there was a factual basis for his plea, that the please was voluntary, that the claim to withdraw his plea was time-barred, and that counsel was not ineffective.
(5-1-4: McDonald concurred in part and in the result without written opinion; Emfinger dissented, joined by Wilson, Westbrooks, and McCarty, and joined in part by McDonald.)

Other Orders

Alford v. State, 2022-KA-00025-COA (denying rehearing)

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

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Mississippi Court of Appeals Decisions of June 13, 2023

I was out of town for a wedding anniversary trip on Tuesday, and then I have been playing catch-up at the office to recover from said trip, so my summaries are delayed this week. First up is Tuesday’s offering from Mississippi Court of Appeals. The COA handed down five opinions this week: a termination of parental rights case, an emancipation case, two direct criminal appeals, and an attempted appeal of a MDOC decision.

Rogers v. Kresse, 2021-CA-00914-COA (Civil – Custody)
Affirming termination of parental rights, holding that the chancery court did not err in finding that the natural mother had abandoned her children and that the father had not abused his discretion with regard to visitation by disallowing it, and that reunification was not in the children’s best interest.
(7-2-0: McDonald concurred in part in and the result without separate written opinion; Westbrooks concurred in result only without separate written opinion.)

Talley v. Talley, 2022-CA-00005-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in an emancipation proceeding initiated by a father with a counter-petition for contempt for failure to pay filed by the mother, holding that the chancellor did not err by finding that the children were emancipated while not modifying the life insurance provision of the divorce agreement, finding the father in contempt for failing to pay his portion of certain expenses, and awarding the mother attorney’s fees.
(9-0: Barnes did not participate.)

Allen v. State, 2022-KA-00331-COA (Criminal – Felony)
Affirming conviction of selling fentanyl and trafficking and possession of controlled substances while possessing a firearm, holding that the circuit court did not err in admitting text messages into evidence on authentication, relevance, or hearsay grounds.
(7-3-0: Wilson concurred in part and in the result without separate written opinion; Westbrooks and McDonald concurred in result only without separate written opinion.)

Wallace v. State, 2022-KA-00332-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err in denying the defendant’s request for a heat-of-passion manslaughter instruction or by allowing testimony related to injuries the victim suffered a week before her death.
(9-0: Smith did not participate.)

NOTE– I love it when opinions cut to the chase. Introductions like this would just about put me out of business around here:

Knight v. State, 2021-CP-01192-COA (Civil – State Boards & Agencies)
Dismissing an appeal for lack of jurisdiction, holding that the appeal of a purported PCR motion was untimely and because it was actually a petition seeking judicial review of an MDOC decision it was a civil appeal for which the Court could not suspend the rules to allow an untimely appeal.
(10-0)

Other Orders

McKenzie v. State, 2012-KA-00471-COA (dismissing untimely motion for rehearing)

Thomas v. State, 2021-CP-00060-COA (denying rehearing)

Pace v. State, 2022-KA-00046-COA (denying rehearing)

Jones v. State, 2023-TS-00325-COA (dismissing appeal as untimely)

Bates v. State, 2023-TS-00356-COA (allowing appeal to proceed as timely based on well-taken pro se show-cause response)

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Mississippi Court of Appeals Decisions of June 6, 2023

The Mississippi Court of Appeals handed down six opinions today. One is an appeal from a DOR assessment, one is a case seeking to set aside warranty deeds over alleged undue influence, one is a direct criminal appeal, and the other three are PCR. No appellant prevailed today.

Toolpushers Supply Co. v. Mississippi Department of Revenue, 2021-SA-01186-COA (Civil – State Boards & Agencies)
Affirming summary judgment that affirmed the DOR’s assessment for unpaid retail sales tax, penalties, and interest, holding that there was no genuine issue of material fact about the sales at issue being “retail sales” as opposed to “wholesale sales.”
(10-0)

Holcombe v. Estate of King, 2021-CA-01234-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor ‘s ruling in a case seeking to set aside warranty deeds because of alleged undue influence, holding that that the factors of a confidential relationship were not established by clear and convincing proof.
(10-0)

Hill v. State, 2022-KA-00524-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court properly refused the defendant’s lesser-included-offense instruction of heat-of-passion manslaughter, that the indictment was not defective or constructively amended, and that the right to a speedy trial was not violated.
(9-0: Smith did not participate.)

Hamilton v. State, 2022-CP-00217-COA (Civil – PCR) (consolidated with Hamilton v. State, 2022-CP-00218-COA)
Affirming denial of the petitioner’s third and fourth motions for PCR, holding that the trial court did not err in finding that the motions were time-barred, successive, barred by res judicata, and without merit.
(10-0)

Winston v. State, 2022-CA-00747-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the petitioner lacked standing to file a PCR motion and that the petition was time-barred.
(10-0)

Varnado v. State, 2021-CP-01073-COA (Civil – PCR)
Affirming denial of a pro se PCR motion, holding that the petitioner failed to present sufficient evidence that his guilty plea was involuntary, that he was misinformed concerning eligibility for release, that his trial counsel was ineffective, or that there was prosecutorial misconduct.
(6-1-3: Carlton dissented, joined by Westbrooks and McCarty; Emfinger concurred in part and in the result without separate written opinion)

Other Orders

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (denying rehearing)

Hathorne v. State, 2021-CA-00306-COA (denying rehearing)

Kirk v. State, 2021-KA-00733-COA (denying rehearing)/

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Mississippi Court of Appeals Decisions of May 30, 2023

I was out of the office all day yesterday for a deposition in Gulfport (photographic evidence, infra), so I am late posting yesterday’s decisions. There were two opinions from the Mississippi Court of Appeals yesterday. One is a direct criminal appeal of a guilty verdict that was reached after the original verdict was reversed and remanded for retrial. The other is a civil expungement case with some interesting procedural history.

Beasley v. State, 2021-KA-00948-COA (Criminal – Felony)
Affirming conviction of one count of capital murder and two counts of second-degree murder, holding that the verdict was supported by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, and that the Weathersby rule did not apply so trial counsel was not deficient for failing to request an instruction or directed verdict on that basis.
(9-1-0: McCarty concurred in part and in the result without separate written opinion.)

NOTE – This was the defendant’s second trial and the jury reached the same result: guilty of one count of capital murder and two counts of second-degree murder. The judgment on the first verdict was reversed because the Court of Appeals held that the trial court committed reversible error when it denied the defendant’s request for a circumstantial evidence jury instruction.

Tran v. State, 2022-CP-00094-COA (Civil – Other)
Affirming denial of petition for expungement, holding that the trial court correctly ruled that the petitioner was not eligible for expungement because five years had not elapsed since the petitioner completed the terms and conditions of his sentence.
(7-3: Wilson, Lawrence, and Emfinger concurred in result only without separate written opinion.)

NOTE – The second footnote in this opinion caught my eye. The petitioner filed a PCR motion in 2010 which was dismissed because he was no longer incarcerated. The COA affirmed that dismissal. The Mississippi Supreme Court overruled later overruled that decision of the COA. In yesterday’s opinion, the COA had this to say about it:

Other Order

Pitts v. State, 2021-KA-00740-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of May 23, 2023

The Mississippi Court of Appeals handed down five opinions today in five different areas of law: custody, PCR, wills and estates, criminal, and personal injury.

Culver v. Culver, 2021-CA-01108-COA (Civil – Custody)
Affirming the chancellor’s ruling changing physical custody from the mother to the father, holding that the chancellor did not err in finding an impending move out-of-state would constitute a material change in circumstances that would adversely impact the children’s welfare and that the chancellor’s analysis of the Albright factors was not manifestly wrong.
(6-3-0: Wilson, Westbrooks, and McDonald concurred in result only without separate written opinion; Lawrence did not participate.)

Brown v. State, 2022-CP-00069-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the ineffective assistance of counsel claims were untimely, barred as successive, and precluded by res judicata; the circuit court was not required to grant the plaintiff’s MSJ or find the State in contempt for not responding to it; and the circuit court was not obligated to conduct an evidentiary hearing.
(10-0)

Roosa v. Roosa, 2022-CA-00128-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s estate orders in a 15-year-long legal saga over the estate of an astronaut, holding that the challenging beneficiary (1) waived the argument that the executor did not have authority to donate property to a foundation and (2) did not secure a ruling from the chancellor on the issue of whether the donation met the requirements of a valid inter vivos gift.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Practice Point – This decisions is a good reminder that you have to get a ruling from the trial court on an issue before you can appeal the issue:

Trest v. State, 2021-KA-00968-COA (Criminal – Felony)
Affirming conviction of molestation, holding that the circuit court did not abuse its discretion by admitting evidence of prior bad acts (of molestation) or denying a mistrial when the witness to the prior molestation said that the defendant had molested “us” or by admitting evidence under the tender-years exception, and that the evidence was sufficient to support the conviction.
(8-1-0: Westbrooks concurred in part and in the result without separate written opinion.)

Rhodes v. RL Stratton Properties LLC, 2022-CA-00338-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a building owner in a suit filed by a roofer who fell through a framed opening in the attic floor while looking for the source of water leaks, holding that the failure to warn an experienced roofer claim failed as a matter of law and that the fall through the opening was “intimately connected” to the work the plaintiff was hired to do.
(10-0)

Other Orders

Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (denying rehearing)

Colenberg v. State, 2021-CA-00673-COA (denying rehearing)

Smith v. Minier, 2021-CA_01284-COA (denying rehearing)

Mallard v. State, 2022-CA-00152-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of May 16, 2023

The Mississippi Court of Appeals handed down eight opinions today. There are three direct criminal appeals today and one is a reversal. There is also a termination of parental rights case, an adverse possession case, a PERS appeal, and two PCR cases.

Johnson v. State, 2022-KA-00465-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the circuit court did not err in refusing a lesser-included heat-of-passion instruction.
(10-0)

Carroll v. State, 2021-CP-00959-COA (Civil – PCR)
Affirming dismissal of motion requesting the circuit court to clarify a sentence, holding that the circuit court lacked jurisdiction to hear the claim because the plaintiff failed to exhaust his administrative remedies.
(9-1-0: Emfinger concurred in result only without separate written opinion.)

Adams v. State, 021-CA-01116-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the plaintiff’s claim challenging the sufficiency of evidence was not a proper ground for PCR and that the plaintiff was not entitled to a circumstantial evidence instruction.
(8-0: Westbrooks and Emfinger did not participate.)

Carter v. PERS, 2022-SA-00383-COA (Civil – State Boards & Agencies)
Affirming decisions removing two-and-a-half years of service credit, holding that the doctrine of equitable estoppel did not bar the PERS from removing the service credits and that the decision was not arbitrary and capricious.
(9-1-0: McDonald concurred in result only without separate written opinion.)

Grimes v. State, 2022-KA-00143-COA (Criminal – Felony)
Reversing denial of motion for new trial, holding that the defendant presented sufficient evidence of potential juror misconduct to warrant an investigative hearing, that the mutual combat manslaughter instruction was harmless error, and that the defendant’s arguments related to exclusion of evidence of the victim’s reputation in the community, hearsay in the autopsy report, medical testimony, exclusion of the victim’s toxicology report, and the scope of re-direct were not preserved for appeal.
(10-0)

Stevenson v. State, 2022-KA-00284-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not abuse its discretion by excluding the defendant’s metal health records because the defendant did not properly assert an insanity defense.
(10-0)

Walters v. Gates, 2021-CP-01350-COA (Civil – Real Property)
Affirming dismissal of the complaint for lack of subject matter jurisdiction and entry of judgment for possession for defendants, holding that the circuit court properly held that the plaintiff’s claim to establish title by adverse possession and cancellation of a deed should have been brought in chancery court.
(10-0)

Roach v. Phillips, 2022-CA-00159-COA (Civil – Adoption)
Reversing termination of parental rights, holding that the chancellor failed to include a summary of the GAL’s qualifications, findings, and recommendations and reasoning for not following the GAL’s recommendations and remanding for further proceedings.
(10-0)

Other Orders

Barfield v. State, 2021-KA-00660-COA (denying rehearing)

Bradley v. State, 2022-CP-00173-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of May 9, 2023

The Mississippi Court of Appeals handed down nine ten opinions today. There are two direct criminal appeals, a divorce case, a bad faith insurance case, an appeal of the suspension of police officers, a construction bid appeal, and two PCR cases.

Durr v. State, 2021-KA-01109-COA (Criminal – Felony)
Affirming conviction of conspiracy to commit armed robbery, capital murder, armed robbery, and aggravated assault, holding that ineffective assistance claim based on Defendant’s representation by the same public defender’s office that represented codefendents who testified against Defendant should be dismissed without prejudice and that if there was error in admitting a codefendant’s affidavit as substantive it was harmless.
(8-2: Westbrooks dissented, joined by McDonald; McDonald also dissented without separate written opinion.)

Hughes v. State, 2021-CP-01241-COA (Civil – PCR)
Affirming denial of PCR motion to vacate PRS revocation and imposition of suspended sentence, holding that the circuit court did not err in ruling based on absconscion.
(10-0)

Sanders v. State, 2022-KA-00351-COA (Criminal – Felony)
Affirming conviction of failing to update sex offender registration, holding based upon review of a Lindsey Brief, review of a pro se brief, and the record that there were no arguable issues that would warrant reversal.
(10-0)

Adams v. City of Jackson, 2021-CC-00454-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s decision affirming the suspension of two officers for engaging in a pursuit while Jackson had a no-pursuit policy, holding that the clear and substantial evidence showed that there was no “pursuit” where an officer initiated a traffic stop and followed the suspect for just over a mile at between 10-20mph.
(8-1: McDonald dissented without separate written opinion; Westbrooks did not participate.)

Davis v. Davis, 2021-CA-01246-COA (Civil – Domestic Relations)
Affirming in part and reversing in part a chancellor’s judgment of divorce, holding there was no error in granting divorce on the grounds of adultery but holding that the chancellor did not properly classify and value certain assets and debts and remanded for proper classification and valuations.
(8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)

PRACTICE POINT – Make the trial court’s job easy! It is good advocacy and it is the humane thing to do.

Watkins v. State, 2021-CP-01301-COA (Civil – PCR)
Affirming denial of PCR motion, holding that all issues were procedurally barred and without merit.
(9-1-0: Emfinger concurred in part and in the result without separate written opinion.)

Groves v. State, 2021-KA-00755-COA (Criminal – Felony)
Affirming conviction of kidnapping and armed robbery, holding that the circuit court did not err in allowing the use of the word “victim” to describe the victim, that the claim of prosecutorial misconduct during closing arguments was procedurally barred and without merit, and that the verdict was supported by substantial evidence and was not against the overwhelming weight of it.
(10-0)/

Gregory Construction Services, Inc. v. Miss. Dept. of Finance and Admin., 2021-SA-00765-COA (Civil – State Boards & Agencies)
Affirming determination that a contractor’s denied construction bid was non-responsive for failing to include a one-page federal form, holding that there were no due process considerations since the plaintiff had no vested property interest in the denied bid and the agencies’ decisions were supported by substantial evidence and reasoning.
(9-0: McCarty did not participate.)

Holloway v. Nat’l Fire & Marine Ins. Co., 2021-CA-01066-COA (Civil – Insurance)
Affirming summary judgment in a bad faith case alleging that a reservation of rights was in bad faith and caused emotional distress even though the carrier ultimately funded a settlement to secure a release of all claims against the insured, holding that the carrier had a legitimate basis for defending under a reservation of rights.
(9-1-0: Westbrooks concurred in result only without separate written opinion.)

Other Orders

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CA-00605-COA (denying rehearing)

Moreland v. Spears, 2021-CA-00714-COA (denying rehearing)

Lamy v. Lamy, 2021-CA-00770-COA (denying rehearing)

Colburn v. State, 2021-KA-00865-COA (denying rehearing)

Brooks v. Jeffreys, 2021-CA-01113-COA (denying rehearing)

Nunn v. State, 2021-KA-01371-COA (recalling mandate to allow pro se motion for rehearing to proceed on the merits)

MS Concrete and Benchmark Ins. Co. v. Harris, 2022-WC-01095-COA (denying motion for rehearing of dismissal of appeal)

Hunter v. State, 2022-TS-01269-COA (granting motion for reconsideration and denying motion for appointment of counsel)

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Mississippi Court of Appeals Decisions of May 2, 2023

The Mississippi Court of Appeal handed down eight opinions today. There are five direct criminal appeals, two interesting workers’ comp cases, and a contempt proceeding in a divorce case.

Ehrhardt v. State, 2021-KA-01143-COA (Criminal – Felony)
Affirming conviction of child exploitation, holding that the trial court did not err in denying a motion to suppress items found during the execution of a search warrant of the defendant’s home based on staleness and reliability or in denying a motion for mistrial after a State’s witness testified about the lack of a defense expert and gave curative direction and an instruction to the jury, and holding that the verdict was supported by sufficient evidence and not against the overwhelming evidence of it.
(10-0)

Hawthorne v. Mississippi State Hospital, 2022-WC-00040-COA (Civil – Workers’ Comp)
Affirming on direct appeal and cross-appeal, holding that the Commission’s finding that the claimant sustained a 40% loss of industrial use of his left lower extremity was supported by substantial credible evidence and that the Commission was within its discretion to strike the IME doctor’s amended report and order the Employer/Carrier to pay all costs of the doctor’s deposition after having ex parte contact with the doctor in violation of the IME order and did not err in denying a monetary sanction.
(10-0)

Amos v. State, 2022-KA-00171-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the admission of testimony of other was waived and/or harmless because the testimony was necessary to provide the jury with the complete story that led to the charges.
(10-0)

Liddell v. State, 2021-KA-00952-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not abuse its discretion in denying a motion for mistrial after the prosecutor made multiple public comments about the case to the media.
(10-0)

Wells v. State, 2022-KA-00157-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by limiting cross-examination of witnesses about whether someone else had a gun on the night in question, excluding evidence the defendant argued developed his theory of the case, or in denying a motion for mistrial on the grounds that one juror was confused through out the trial and hard of hearing.
(9-1-0: Westbrooks concurred in part and in the result without separate written opinion)

Manley v. Manley, 2021-CA-00700-COA (Civil – Domestic Relations)
Affirming the chancery court’s judgment in a contempt proceeding following a divorce, holding that the chancellor did not abuse his discretion in awarding payment of back-owed portions of retirement pay and did not err in finding that the father was not entitled to a credit towards his child support obligations for in-kind contributions and thus awarding back-owed child support.
(7-1-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in part and dissented in part, joined by Barnes.)

Parker v. Canton Manor and Mississippi Healthcare Association, 2022-WC-00206-COA (Civil – Workers’ Comp)
Reversing the MWCC’s decision dismissing the claimant’s two claims based on the two-year statute of limitations, holding that the “substantial evidence” standard did not apply because the Commission did not make any finds of fact based on evidence and that the Commission erred by granting a motion to dismiss because the allegations in the Petition on its face stated a claim and the Employer/Carrier presented no evidence to support its affirmative defense.
(8-2-0: Barnes and Westbrooks concurred in result only without separate written opinion)

Practice Point – The Court of Appeals applied the Miss. R . Civ. P. 12(b)(6) standard to the Employer/Carrier’s motion to dismiss. Here is the crux of the opinion (from paragraph 11):

Applewhite v. State, 2022-KA-00290-COA (Criminal – Felony)
Affirming conviction of capital murder and aggravated assault, both with firearm aggravation, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of it.
(8-2: Westbrooks dissented, joined by McDonald)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (granting appellate attorney’s fees and costs)

Boutwell v. Fairchild, 2021-CA-01046-COA (denying rehearing)

Fox v. State, 2022-KA-00988-COA (denying motion for bail pending appeal)

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Mississippi Court of Appeals Decisions of April 25, 2023

The Court of Appeals handed down nine opinions today and there is something for just about every practice area. There are two appellate jurisdiction cases, a will contest, a breach of contract case, two direct criminal appeals, a divorce/marital estate division case, a breach of termite contract case, an intra-church lawsuit, and an intentional tort/attorney’s fees case.

Herning v. Lakeview S/C Partners, Ltd., 2021-CA-01427-COA (Civil – Other)
Affirming the circuit court’s dismissal of the defendant’s appeal from summary judgment for the plaintiff entered by the county court, holding that the defendant failed to pay the cost bond for his appeal within the thirty-day time limit so the circuit court lacked jurisdiction.
(8-2: McDonald concurred in part and dissented in part without separate written opinion; Lawrence dissented without separate written opinion.)

Pearson v. Eubanks, 2022-CA-00011-COA (Civil – Wills, Trusts & Estates)
Reversing the chancery court’s dismissal of a will contest, holding that the plaintiffs’ well-pleaded allegations when the filed the will contest provided them stating to contest the will on undue influence grounds.
(10-0)

Lewis v. State, 2021-KA-00472-COA (Criminal – Felony)
Affirming conviction of first and second degree murder, holding:
1. No error in transferring venue that the defendant requested.
2. No error in denying Castle Doctrine and stand-your-ground jury instructions.
3. The doctrine of retroactive misjoinder did not apply.
4. Limiting the defense’s cross-examination of a witness about his pending indictment was harmless error.
5. The objection to the investigator’s testimony about exit wounds was waived.
6. No speedy trial violation (issue raised pro se)
7. No error in denying the motion to quash and dismiss the indictment (issue raised pro se)
8. The State did not commit prosecutorial misconduct (issue raised pro se)
9. No error in allowing the jury to review transcript of the defendant’s recorded statement (issue raised pro se)
10. Evidence was sufficient and the verdict was not against the overwhelming weight of it (issue raised pro se)
(7-3-0: Barnes and Lawrence concurred in part and in the result without separate written opinion; Smith concurred in part and in the result, joined by Barnes and Lawrence.)

Kloss v. Bay Pest Control, Inc., 2021-CA-01117-COA (Civil – Contract)
Affirming summary judgment dismissing breach of termite-prevention contract and negligence claim, holding that the presence of termites alone did not support the breach of contract claim or the negligence claim.
(8-2-0: Westbrooks and McDonald concurred in result only without separate written opinion.)

Underwood v. State, 2021-CP-01123-COA (Civil – Other)
Dismissing direct appeal of a guilty plea for lack of jurisdiction without prejudice.
(10-0)

Christian v. State, 2021-KA-00898-COA (Criminal – Felony)
Affirming conviction of aggravated assault upon receipt of a Lindsey brief and the Court’s review of the record, holding that there were no arguable issues for appeal.
(10-0)

Lewis v. Lewis, 2022-CA-00016-COA (Civil – Domestic Relations)
Affirming the chancery court’s line of demarcation for division of the marital estate and award of alimony, holding that the chancellor was well within her discretion to use a December 2020 temporary order as the line of demarcation rather that the trial date and that the chancellor’s alimony findings were sufficient and her ruling was not ab abuse of discretion.
(10-0)

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (Civil – Other)
Reversing a monetary judgment following a jury trial, holding that the board of trustees of a church lacked standing to sue the church’s senior pastor and chairman of its deacons for breach of fiduciary duties and other claims, holding that the board lacked authority to file the lawsuit without the church members’ approval and lacked authority to maintain suit after a majority of members voted against it.
(5-2-3: Westbrooks and Emfinger concurred in part and in the result without separate written opinion; Greenlee dissented without separate written opinion; Barnes dissented, joined by Greenlee and McDonald)

Herbert v. Herbert, 2021-CA-01291-COA (Civil – Domestic Relations)
Affirming on direct appeal and reversing on cross-appeal, holding that the circuit court erred in granting summary judgment on the grounds the affirmative defense of release because that defense had been waived but affirming on de novo review of the merits of claims for intentional infliction of emotional distress, verbal assault, conversion, fraudulent misrepresentation, defamation, and breach of contract, but reversing the circuit court’s denial of attorney’s fees to the defendant and remanded for further proceedings.
(6-1-2: McDonald concurred in result only without separate written opinion; Carlton concurred in part and dissented in part, joined by McDonald; Emfinger did not participate.)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (denying rehearing)

Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (denying rehearing)

Buchanan v. State, 2021-CP-01069-COA (recalling mandate so motion for rehearing can proceed on merits)

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Mississippi Court of Appeals Decisions of April 18, 2023

The Court of Appeals handed down six opinions yesterday. There was one direct criminal appeal, a statute of frauds/equitable estoppel case, an equitable distribution case, and three PCR cases.

Beckworth v. Beckworth, 2022-CA-00048-COA (Civil – Other)
Affirming the chancery court’s ruling in a dispute between siblings over the ownership of a home, holding that the brother who had been evicted by the sister failed to prove the elements of equitable estoppel and therefore he could not get past the statute of frauds.
(10-0)

NOTE – I like this statement on credibility calls:

Cleveland v. State, 2021-CA-01130-COA (Civil – PCR)
Affirming summary denial of a motion for PCR, holding that the petitioner’s first claim was meritless and his second claim was time-barred.
(10-0)

Rutledge v. State, 2022-CP-00513-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the claim on appeal was procedurally barred because the petitioner sought to challenge the validity of the conviction but had not presented that issue to the trial court.
(10-0)

Johnson v. Johnson, 2021-CA-01080-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s findings on remand for application of the Ferguson factors to equitable distribution, holding that the chancery court did not abuse its discretion by awarding her lump-sum alimony or 45% of his military pension, but sua sponte addressing an incorrect calculation of the percentage of military survivors benefits awarded and reversing/rendering on that issue.
(10-0)

Jackson v. State, 2022-CP-00325-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that the circuit court properly dismissed the claim for lack of jurisdiction because the petitioner failed to obtain permission from the Supreme Court.
(10-0)

McClusky v. State, 2022-KA-00115-COA (Criminal – Felony)
Affirming conviction of fondling, holding that the trial court did not abuse its discretion in allowing the State to introduce testimony of prior abuse to show lack of mistake or in allowing the state to question the defendant about pornographic material on his cell phone for impeachment purposes.
(10-0)

Other Order

Clark v. Vicksburg Healthcare, LLC, 2021-CA_00173-COA (denying rehearing)

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