Category: Court of Appeals

Mississippi Court of Appeals Decisions of April 11, 2023

The Mississippi Court of Appeals handed down six opinions today (eight, if you count each of the three PCR cases that were consolidated). The list starts off PCR heavy, but then we pick up a reverse-Batson/criminal appeal, a personal injury/borrowed servant case, and a defamation case.

Simoneaux v. State, 2022-CP-00532-COA (Civil – PCR)
Affirming the circuit court’s order dismissing the plaintiff’s third PCR motion, holding that there was no error in finding that the PCR motion was successive and time-barred.
(9-0: McCarty did not participate)

Holliday v. State, 2022-CA-00149-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in denying the petition claiming ineffective assistance of counsel based on the plaintiff’s knowing and voluntary guilty plea.
(9-0: Smith did not participate)

Blackmore v. State, 2021-CA-00743-COA (Civil – PCR)
consolidated with
White v. State, 2021-CA-00744 COA
consolidated with
Traxler v. State, 2021-CA-00769-COA
Affirming denials of motions in three separate cases arguing that the plaintiffs’ classifications as violent offenders was unconstitutional, holding that Tenth Amendment reserved to Mississippi the right to define DUI as a crime of violence and that enactment of section 97-3-2 superseded the holding in Smith v. State, 942 So. 2d 308 (Miss. Ct. App. 2006), expressly overruling Smith.
(9-0: Emfinger did not participate)

Smith v. State, 2021-KA-01003-COA (Criminal – Felony)
Affirming first-degree murder conviction, holding that the trial court did not err in returning four jurors back to the venire after a “reverse-Batson challenge” by the State or in admitting autopsy photos.
(7-3: McCarty concurred in part and dissented in part, joined by Westbrooks and McDonald; Westbrooks and McDonald also concurred in part and dissented in part without separate written opinion)

Dawson v. Burgs, 2021-CA-01038-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the defendants where the plaintiff was allegedly injured by a coworker, holding the plaintiff (an employee of the defendant temporary staffing agency) was a “borrowed servant” of Dollar General and therefore the alleged tortfeasor (who was an employee of Dollar General) was immune for suit under the MWCA which precluded his direct liability and the staffing agency’s vicarious liability.
(8-2: Westbrooks dissented joined by McDonald)

NOTE – This is a good reminder that substance prevails over form prevail when classifying someone as an “employee” or “independent contractor”:

Fagan v. Faulkner, 2022-CA-00130-COA (Civil – Torts)
Reversing bench trial verdict for the plaintiff in a defamation case, holding that an obscene outburst by a surgeon directed at a nurse were not actionable as slander per se because the evidence did not show the surgeon spoke them in relation to the nurse’s capability to perform her job.
(6-4: McCarty dissented, joined by Carlton, Westbrooks, and McDonald; McDonald also dissented without separate written opinion)

Other Orders

Thomas v. State, 2021-CP-00060-COA (granting motion to recall mandate)

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (denying rehearing)

Davis v. State, 2021-KA-00759-COA (denying rehearing)

Hull v. State, 2022-CP-00088-COA (recalling mandate and accepting petition for rehearing as timely)

Hand Down List

Mississippi Court of Appeals Decisions of April 4, 2023

I am playing catch-up because my paying work had me preoccupied last week. The Mississippi Court of Appeals handed down seven opinions last Tuesday. There were a couple of direct criminal appeals, an alimony case, an appeal of a $2.8M auto liability verdict, a couple of PCR cases, and an appeal of an MDOC issue.

Gillenwater v. Redmond, 2021-CA-01378-COA (Civil – Domestic Relations)
Affirming modification of alimony, holding that chancellor did not abuse her discretion by reducing (but not terminating) the alimony obligation based on the ex-wife’s cohabitation and mutual support.
(8-1-0: Westbrooks concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Tubwell v. State, 2022-KM-00342-COA (Criminal- Misdemeanor)
Affirming conviction of violating the child-restraint laws, holding that there was sufficient evidence to support the conviction where there were two adults and three children in a single-cab pickup and one child was sitting in the driver’s lap.
(8-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion.)

Winters v. State, 2022-CP-00435-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in finding that the motion was time-barred, successive, and without merit.
(10-0)

Williamson v. State, 2021-KA-00830-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, burglary of a shed, and trafficking stolen firearms, holding that the evidence was sufficient and that the verdict was not against the weight of it and that there was no error admitting evidence of other crimes, in denying a motion to suppress evidence obtained in a search of the defendant’s home, in denying a motion for continuance, or in not halting trial during a power outage.
(10-0)

Everett v. State, 2021-CP-01385-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the illegal sentence claim was time-barred and without merit and that the claim regarding earned-discharged credits was properly dismissed because that claim should have been filed in the venue where the plaintiff is housed.
(8-1-0: No separate opinions – Westbrooks concurred in result only and Smith did not participate)

Robinson v. MDOC, 2022-CP-00018-COA (Civil – State Boards & Agencies)
Affirming denial of petition for judicial review after the petitioner was denied a request to participate in the Meritorious Earned TIME Incentive Program, holding that the circuit court did not err in finding that the court lacked personal jurisdiction because MDOC had not been given notice of the appeal and that the petitioner failed to exhaust his administrative remedies.
(8-2-0: No separate opinions – McCarty concurred in part and in the result and McDonald concurred in result only.)

Kirk v. Newton, 2021-CA-00684-COA (Civil – Tort)
Affirming a nearly $2.8 million verdict in an auto liability case, holding that the question of who caused the accident was a fact issue for the jury, that there was no evidence of bias, passion, or prejudice to show that the award should be reduced or set aside, and that there was no error in using national average for wage calculation that was lower than the plaintiff’s actual wages where the jury heard both sides from experts and weighed their credibility.
(8-1-1: Wilson concurred in part and in the result without separate written opinion; Greenlee dissented.)

NOTE – I do not think this case represents the departure from Rebelwood that I thought it would when I was first reading it. My take is that the fact that the national average figure used by the plaintiff was less than the actual wage-earning history was critical to this decision.

Other Orders

$41,080 v. State, 2021-CA-00692-COA (denying rehearing)

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (denying rehearing)

Owens v. State, 2021-KA-000887-COA (denying rehearing)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of March 28, 2023

The Mississippi Court of Appeals handed down two decisions yesterday. One case is a putative derivative action against a property owners association board and the other is a worker’s comp case involving compensability and loss of wage-earning capacity.

Feola v. Marthouse, 2021-CA-01078-COA (Civil – Other)
Affirming in part and reversing in part the chancellor’s dismissal of a putative derivative action against the board of directors of a property owners association, agreeing with the chancellor that the amended complaint was not properly verified and properly dismissed but reversing the award of attorney’s fees because the suit was not frivolous.
(10-0)

Parker v. Mississippi Dept. of Health, 2022-WC-00552-COA (Civil – Workers’ Comp)
Affirming the MWCC, holding that there was substantial evidence supporting the Commission’s ruling that that the claimant did not sustain an compensable right-shoulder injury and that the claimant overcame the presumption of no loss of wage-earning capacity but only proved a 15% loss.
(8-2: Westbrooks dissented, joined by McDonald.)

Other Orders

Lowe v. State, 2019-KA-01621-COA (denying pro se “motion for leave to proceed with extension to file rehearing out of time as a result of excusable neglect of counsel”)

Watts v. Watts, 2021-CA-00321-COA (denying rehearing)

Burchett v. State, 2021-KA-00776-COA (denying rehearing)

MS Concrete v. Harris, 2022-WC-01095-COA (granting motion to dismiss appeal as interlocutory)

Hand Down List

Mississippi Court of Appeals Decisions of March 21, 2023

The Mississippi Court of Appeals handed down four opinions on Tuesday. It was an eclectic mix, including a workers’ comp case, a dysfunctional two-member LLC , a wrongful death case against a sheriff’s deputy, and an inmate’s request for removal of a rule violation report.

Holloway v. King, 2021-CP-01351-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s decision that affirmed the denial of an inmate’s request for the removal of a rule violation report, holding that the circuit court did not have jurisdiction because the petitioner did not comply with the notice requirements of UCRCCC 5.04.
(6-4: McCarty dissented, joined by Westbrooks, McDonald, and Lawrence.)

Myrick v. UMMC, 2021-WC-01401-COA (Civil – Workers’ Comp)
Affirming MWCC order, holding that there was substantial, credible evidence to support the Commission’s finding that the Employer/Carrier overcame the presumption of permanent total disability and that the claimant’s post-injury back surgery was not related to her compensable back injury.
(7-3-0: Westbrooks, McDonald, and McCarty concurred in part and in the result without separate written opinion.)

Colson v. Warren, 2021-CA-01408-COA (Civil – Other)
Affirming on direct and cross appeal the chancery court’s decisions denying a claim to dissolve a two-member LLC, holding that the two members should cooperate in drafting and implementing an operating agreement and opening a bank account to deposit rental revenue checks payable to the LLC that had been piling up.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Renfroe v. Parker, 2021-CA-01048-COA (Civil – Wrongful Death)
Affirming summary judgment in favor of the law-enforcement defendants in a wrongful death suit after a suspect was killed by a deputy, holding:
1. Res judicata did not bar the plaintiff’s state law tort claims after the federal district court dismissed her 1983 claims with prejudice and her state law claims without prejudice.
2. The deputy and the sheriff were entitled to immunity on the official-capacity claims
3. Collateral estoppel barred the claims for IIED, assault, and battery because the federal district court found that the deputy’s use of force was “objectively reasonable.”
4. Even if collateral did not bar the IIED, assault, and battery claims, the plaintiff did not come forward with evidence to defeat summary judgment.
(7-2: McDonald concurred in part and dissented in part, joined by Westbrooks. Judge Emfinger did not participate.)

NOTE – According to testimony, the deputy shot the suspect after the suspect charged at the deputy, withstood a taser (pulling the electrodes out of his chest), had a physical altercation with the deputy, and then charged at the deputy a second time. The fact that the suspect did this while wearing pajama pants did not sway the courts at any level.

Other Orders

Green v. State, 2021-KA-01019-COA (rehearing denied)

Hand Down List

Mississippi Court of Appeals Decisions of March 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. There was nary a dissent, but a conviction of child exploitation was reversed. The are other felony opinions, two divorce cases, a contract case involving a defunct LLC, and a PCR case.

Nunn v. State, 2021-KA-01371-COA (Criminal – Felony)
Affirming conviction of having meth within 1,500 feet of a church, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mental competency evaluation where the trial court twice held a hearing to determine whether the defendant understood and appreciated the significance of the trial proceedings and had the ability to rationally aid in his defense or in denying the defendant’s entrapment instruction.
(10-0)

Singh v. State, 2022-CP-00273-COA (Civil – PCR)
Affirming denial of PCR motion, holding no error in revoking post-release supervision since the plaintiff absconded from supervision.
(10-0)

Williams v. Williams, 2021-CA-00758-COA (Civil – Domestic Relations)
Affirming judgment of divorce, holding that the chancellor’s valuation of the marital residence was based on evidentiary support in the record.
(10-0)

Wakefield v. State, 2021-KA-00187-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder, to kidnapping, and to auto theft, holding:
1. The circuit court had jurisdiction because it sat in one of the counties where the crimes were committed;
2. That the convictions did not violate the Double Jeopardy Clause even though the defendant gave just one car ride because he was an accessory to three distinct felonies so the merger doctrine did not apply;
3. That there was no error based on the weight or sufficiency of the evidence;
4. That the indictment was not defective for failing to include “intent” where it did include “willfully;” and
5. That there was no error in admitting autopsy and crime scene photos.
(8-1-0: McDonald concurred in result only without separate written opinion; Emfinger did not participate)

NOTE – These convictions stemmed from the kidnapping and murder of six-year-old Kingston Frazier in 2017.

Holmes v. Lankford, 2022-CA-00203-COA (Civil – Contract)
Affirming summary judgment for the defendant in a dispute over a sand and gravel operation agreement, holding that the plaintiff did not have standing to enforce the agreement that was between the defendant and the plaintiff’s administratively dissolved LLC and that the plaintiff did not otherwise show he was entitled to relief.
(10-0)

NOTE – Conducting business through an LLC can cut both ways:

Mason v. State, 2021-KA-00964-COA (Criminal – Felony)
Reversing conviction of child exploitation, holding that the trial court erred in denying funds for an independent computer forensics expert because the State’s witness/detective should have been considered an expert and that this error hindered the defendant’s jurisdictional challenge and led to evidentiary errors that contributed to an unfair trial.
(7-3-0: Wilson, Smith, and Emfinger concurred in part and in the result)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Modified opinion on motion for rehearing affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(9-0)

Other Orders

Hornsby v. Hornsby, 2020-CA-01091-COA (dismissing motion for attorney’s fees)

Blount v. State, 2021-KA-00204-COA (denying rehearing)

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (granting pro se motion for extension of time to file motion for rehearing and recalling mandate)

Easterling v. State, 2022-CA-00796-COA (vacating circuit court’s order and rendering judgment dismissing motion for PCR)

Hunter v. State, 2022-TS-01269-COA (dismissing appeal as untimely)

Hand Down List

Mississippi Court of Appeals Decisions of March 7, 2023

The Mississippi Court of Appeals handed down ten opinions on Tuesday with something for everyone. We have divorce, tax appeals, alleged deed forgeries, criminal convictions, wrongful death, a town without standing, an inmate requesting a CD of his trial transcript after receiving a paper copy, and (of course) a PCR case. The wrongful death opinion has an extended discussion of the proximate cause element and offers some clarification into what that element entails.

Johnson v. Johnson, 2021-CA-01354-COA (Civil – Domestic Relations)
Affirming in part and reversing in part a grant of divorce, holding that the chancellor did not err in granting divorce on the grounds of cruel and inhuman treatment but reversing and remanding based on the lack of findings as to classification, valuation, and distribution of the parties’ property.
(10-0)

Wilson v MDOC, 2021-SA-01393-COA (Civil – Other)
Affirming the trial court’s order that granted an inmate’s request for a paper copy of this trial transcript mailed to him but denied his request to have a CD of the record mailed to the inmate’s mother.
(10-0)

Hopes v. State, 2022-KA-00031-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the defendant’s ineffective-assistance claim was more appropriate as a PCR motion, that convictions for armed robbery and possession of a stolen firearm did not violate the Double Jeopardy Clause, that the trial court properly refused a lesser-included offense, and that the evidence was sufficient to support the armed robbery conviction.
(10-0)

McDowell v. State, 2021-CA-01381-COA (Civil – PCR)
Affirming post-Miller re-sentencing to life without eligibility for parole, holding that the defendant was not entitled to re-sentencing by a jury and that the trial court did not abuse its discretion in examining and considering the Miller factors.
(10-0)

McCoy v. MDOR, 2022-SA-00033-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s granting the DOR and Tax Appeals Board’s motions to dismiss challenging an assessment increasing taxable income a prior tax year, holding that the assessment was properly issued within the three-year statute of limitations and that the Tax Appeals Board was improperly named as a party.
(10-0)

Hill v. Pine View Apartments, 2022-CP-00302-COA (Civil – Real Property)
Affirming a judgment of eviction, holding that the tenant waived her right to argue that the landlord waived its right to evict her because it accepted rent post-breach because she did not present any proof at the circuit court.
(10-0)

Catlett v. Catlett, 2021-CA-01071-COA (Civil – Real Property)
Affirming the chancellor’s rulings following a trial on whether the foreclosure on real property was void due to alleged forgery of the wife’s signature on the deed, holding that although the evidence showed the signature was more likely than not a forgery the chancellor’s ruling was not unreasonable in light of the notarial presumption.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Smith v. Minier, 2021-CA-01284-COA (Civil – Wrongful Death)
Reversing dismissal on summary judgment of a wrongful death claim where the decedent died of chronic liver failure five months after a car wreck, holding that there was a fact question as to whether the other driver’s actions were the proximate cause of the decedent’s use of pain medication, misuse of pain medication, and resulting death.
(7-3-0: Carlton, Wilson, and Emfinger concurred in part and in the result without separate written opinion.)

PRACTICE POINT – This is a must-read if you handle negligence claims. The Court of Appeals confessed occasional, prior inconsistencies in the Court’s use of the term “proximate cause” and took the opportunity to clarify:

Regarding the instant case, the Court held:

Board of Aldermen v. State, 2021-CA-00880-COA (Civil – State Boards and Agencies)
Affirming dismissal of a claim by the town seeking a declaratory judgment that aldermen acted in good faith when approving payments to certified part-time law enforcement officers after the State Auditor made a demand to the aldermen, holding that the town lacked standing because the the OSA had made the demand for the benefits of the town and had returned the recovered money to the town.
(9-1-0: McDonald concurred in result only without separate written opinion.)

NOTE – This case involved a game of “Who is actually the plaintiff?” The Complaint listed the plaintiff as “Board of Aldermen of the Town of Tutwiler, Mississippi” but the Court held that the town itself was actually the plaintiff:

Barden v. State, 2021-KA-01327-COA (Civil – Felony)
Affirming murder conviction and denial of JNOV or new trial, holding after receiving a Lindsey brief and independently reviewing the record that the evidence was sufficient to support the conviction, no arguable issues that would require supplemental briefing, and no issues that warranted reversal.
(10-0)

Other Orders

Price v. State, 2019-KA-01890-COA (denying rehearing)

King v. State, 2021-CA-01145-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 28, 2023

The Mississippi Court of Appeals handed down three opinions today. Two are domestic relations cases: one dealing with child support and the other primarily dealing with custody. The third decisions is a PCR case.

Everett v. State, 2021-CP-01415-COA (Civil – PCR)
Affirming summary denial of a motion for PCR alleging an illegal sentence, holding no error because the sentence imposed was the maximum punishment authorized by statute at the time.
(7-2-0: Westbrooks and McDonald concurred in result only; Smith did not participate)

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White v. White, 2021-CA-01074-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision ordering past-due child support for the period of time from when the parties’ youngest child turned 18 until she turned 21, holding that there was no evidence presented that the child was emancipated before turning 21.
(10-0)

Latham v. Latham, 2022-CA-00363-COA (Civil – Domestic Relations)
Affirming chancellor’s divorce judgment, holding that the chancellor did not err in the application of the Albright factors or in finding that one party did not provide a financial disclosure to the court.
(9-1-0: McCarty concurred in part and in the result without separate written opinion)

Other Orders

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (denying rehearing)

Wallace v. State, 2021-CP-01149-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 21, 2023

The Mississippi Court of Appeals handed down seven opinions yesterday and I have just now been able to sit down and make it through them. These opinions include a wrongful-death MTCA claim, a complaint for public records, two wills and estates cases, and some PCR thrown in the mix.

Humphrey v. Steve Holts, 2021-CA-00046-COA (Civil – Other)
Reversing the chancery court’s order dismissing a complaint for public records and quashing subpoenas, holding that the chancellor erred in dismissing the complaint without an evidentiary hearing to examine the records at issue and remanding for an evidentiary hearing.
(9-1-0: Smith concurred in part and in the result without separate written opinion.)

Baker v. State, 2021-CP-01277-COA (Civil – PCR)
Affirming summary denial of a verified motion for PCR, holding that the trial court did not err in finding that the indictment properly charged the plaintiff with burglary of a dwelling.
(9-1-0: Westbrooks concurred in result only without separate written opinion.)

Avery v. Estate of Eric Lane Avery, 2022-CP-00163-COA (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s order closing the estate, holding that the chancery court did not err in closing the estate without proceeding on a request to amend the death certificate and that there was no evidence that the daughter/beneficiary willfully, knowingly, or intentionally killed her father.
(10-0)

Buchanan v. Hope Federal Credit Union, 2021-CA-00218-COA (Civil – Other)
Affirming the circuit court’s order denying a motion to transfer venue in an action to confirm an arbitration award, holding that the failure to tender required payment at the designated address was a “substantial omission” that made the county where the payment was to be made a permissible venue.
(6-2-1: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion; McDonald concurred in part and dissented in part; Emfinger did not participate.)

Maxwell v. Panola County, Mississippi, 2021-CA-01001-COA (Civil – Wrongful Death)
Affirming a defense verdict in an MTCA lawsuit stemming from a double-fatality car crash with a sheriff’s deputy, holding that whether the deputy acted with reckless disregard when he ran a stop sign immediately before the collision was a question of fact and substantial evidence supported the trial court’s finding that it was not more than simple negligence.
(9-1-0: McDonald concurred in result only without separate written opinion.)

Buchanan v. State, 2021-CP-01069-COA (Civil – PCR)
Affirming motion for PCR challenging the revocation of post-release supervision, holding that the circuit court did not err in ruling that the plaintiff’s due process rights were not violated and that the plaintiff’s laches argument was both waived and meritless.
(10-0)

Estate of Charles James Bell v. Estate of Sarah Dell Mann Bell, 2021-CA-00789-COA (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s enforcement of an antenuptial agreement, holding that the chancery court did not err in determining that the antenuptial agreement was not a testamentary document that the wife revoked by a subsequent will, was supported by consideration, and was not substantively unconscionable, and that the husband waived his statutory right to renounce the wife’s will.
(6-1-3: Wilson concurred in part and in the result without separate written opinion; McDonald dissented, joined by Barnes and Westbrooks.)

Other Orders

Arrington v. Anderson, 2021-CA-00233-COA (denying rehearing)

Belmer v. State, 2021-CP-00410-COA (denying rehearing)

Jarvis v. State, 2021-CP-00930-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Court of Appeals Decisions of February 7, 2023

The ever-prolific Mississippi Court of Appeals handed down nine opinions today. There is a mix of criminal, domestic, and civil cases with a unifying theme of appellees running the table.

Edwards v. State, 2021-KM-01348-COA (Criminal – Misdemeanor)
Affirming conviction of first-offense DUI, holding that there was probable cause for the traffic stop and that law enforcement was not required to inform the defendant of his right to an independent and alternative BAC test.
(10-0)

Harrison v. Howard, 2021-CA-00697-COA (Civil – Domestic Relations)
Affirming judgment of contempt for failure to comply with agreed order of modification of child custody and support, holding that the father waived improper service, that the agreed modification order was voidable but not void and he failed to timely appeal it, and that he waived the issue of termination of the mother’s child support obligation by not timely objecting or appealing.
(7-3-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion.)

Washington v. State, 2021-KA-01041-COA (Criminal – Felony)
Affirming conviction of capital murder and armed robbery, holding that the trial court’s comments to the jury that this was not a death penalty case was appropriate clarification of fact and did not prejudice the jury, that the defendant did not prove that the State’s loss of a video lineup was not bad faith, that there was no proof that inadmissible portions of video testimony were played to the jury and so it is presumed that the trial court’s order sustaining an objection to the inadmissible testimony was heeded, and that if admitting a handgun into evidence was error it was invited by the defendant who introduced it.
(7-3-0: Wilson, McCarty, and Emfinger concur in part and in the result without separate written opinion.)

Pace v. State, 2022-KA-00046-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court erred in admitting photos without a proper foundation but the error was harmless, that the defendant waived the argument that the State made an improper comment during closing by not objecting, and that the trial court did not err in refusing the defendant’s self-defense instruction.
(7-2-0: Wilson and Greenlee concurred in part and in the result without separate written opinion, Smith did not participate.)

Brandon v. State, 2021-KA-01239-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon upon receipt of a Lindsey brief and a review of the record finding no arguable issues for appeal.
(10-0)

Lofton v. Lofton, 2021-CA-00035-COA (Civil – Real Property)
Affirming judgment in a fraudulent-transfer of real and personal property lawsuit that is tangential to a pending divorce action, holding that the chancery court did not abuse its discretion in determining that the UFTA supported a finding of fraud or in awarding the prevailing party attorney’s fees.
(9-1-0: Westbrooks concurred in the result only.)

NOTE – This is an interesting and fact-bound decision discussing the UFTA.

Mack v. State, 2021-CA-01060-COA (Civil – Other)
Affirming denial of expungement, holding that the trial court did not err in finding that the plaintiff’s conviction was related to his official duties as a police officer.
(10-0)

Clark v. Tippah County Dept. of Child Protection Services, 2021-CP-01209-COA (Civil – Custody)
Affirming judgment terminating parental rights, holding that the mother’s due process claims were procedurally barred and without merit and that the chancellor did not err in terminating parental rights.
(7-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only; Greenlee did not participate.)

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (Civil – Contract)
Affirming chancery court’s judgment that the school district breached 16th section lease terms regarding rent adjustments, holding that the chancery court had subject matter jurisdiction, applied the correct standard of review, did not err in finding no material breach by appellees, did not err in overturning the county board’s ruling, and did not err in denying attorney’s fees to the appellant.
(10-0)

Other Orders

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (denying rehearing)

Belmer v. State, 2021-CP-00398-COA (denying rehearing)

Davis v. State, 2021-KA-00593-COA (denying rehearing)

Howard Industries, Inc. v. Hayes, 2021-WC-00694-COA (denying rehearing)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (denying rehearing)

Hand Down List