Category: Court of Appeals

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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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