Category: Court of Appeals

Mississippi Court of Appeals Decisions of May 17, 2022

The Mississippi Court of Appeals handed down ten opinions today. One is a medical malpractice case that ran afoul of RFAs. There are several criminal appeals, a claim against an estate by a judgment-lien holder, several PRC cases including one with competing opinions on Eighth Amendment issues, and more.

Cunningham v. Mississippi Department of Corrections, 2021-CP-00428-COA (Civil – State Boards and Agencies)
Affirming circuit court’s denial of the plaintiff’s motion for judicial review of two ARP requests against MDOC, holding that the plaintiff failed to provide any documents to support his appeal and that, in any event, the plaintiff received sentencing credit for his pretrial detention.
(All judges concurred.)

Pickle v. State, 2021-CP-00972-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motions for writ of mandamus, alternative sentencing, and a new trial or for JNOV regarding his 1978 conviction of capital murder and life imprisonment, holding that the motion was untimely, successive, and meritless.
(All judges concurred.)

Thompson v. State, 2020-KA-01279-COA (Criminal – Felony)
Affirming a conviction of drive-by-shooting that followed a domestic dispute between the defendant, the defendant’s boyfriend, and the defendant’s boyfriend’s ex-wife. The narrative in the opinion is gripping. In short, it was alleged that an Amber alert was issued for the formerly-married couple’s child when the child was with the defendant and her boyfriend (the child’s father). The couple had a physical altercation with the ex-wife at her work place in the midst of which the defendant instructed the ex-wife to “catch me outside.” Later, the ex-wife apparently inadvertently caught the defendant outside while driving and the defendant shot the ex-wife in the arm. A jury convicted the defendant of one count of drive-by-shooting and the court of appeal affirmed, holding that the conviction was not against the overwhelming weight of the evidence, the circuit court did not err in allowing the circuit clerk to testify as an authenticating witness even though she was present throughout the trial where the defendant’s counsel did not object, the circuit court did not err in refusing the defendant’s proposes “mere suspicion” instruction which would have been cumulative, and the defendant’s counsel was not ineffective.
(All judges concurred.)

Unifund CCR Partners v. Estate of Jordan, 2021-CA-00761-COA (Civil – Wills, Trusts, and Estates/Judgment Liens)
Reversing the chancery court’s ruling that claims against the estate were not timely, holding that the judgment liens against the decedent survive the time-bar of probate and were reasonably ascertainable to the executrices of the estate.
(Chief Judge Barnes and Judge Lawrence concurred in part and in the result without separate written opinion. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Westbrooks concurred in part and dissented in part, joined by Judge McDonald.)

McLaughlin v. State, 2020-KA-00360-COA (Criminal – Felony)
Affirming conviction of capital murder, third-degree arson, conspiracy, and possession of a firearm by a felon, holding that the evidence was sufficient for each of the convictions, that the defendants was procedurally barred on appeal from raising an alleged Miranda issue and that there was no plain error on this issue, that the circuit court did not err in admitting a photograph of the victim’s brain sitting on the autopsy table to show the bullet path, and that retroactive misjoinder did not apply.
(All judges concurred.)

PRACTICE POINT – Seeking to exclude gruesome photographs of victims in criminal trials is an uphill climb:

Carter v. Total Foot Care, 2021-CA-00610-COA (Civil – Medical Malpractice/Requests for Admissions)
Affirming summary judgment in favor of the defendants based on the plaintiff’s failure to respond to the defendants’ requests for admissions that were deemed admitted, holding that the trial court did not err in deeming the RFAs as admitted–including an admission that the standard of care was not breached–where the plaintiff did not respond until after the defendants filed their MSJ which was more than five months after the RFAs were served. Additionally, the Court of Appeals held that the plaintiff could not rely on responses served in a related federal court proceeding.
(All judges concurred.)

MUSING– My experience is that RFAs are rarely used effectively. In the wild, they usually look like a cartoonish attempt to trick the other side. Something like a deadly CAPTCHA test. I think the best use of RFAs is to whittle down and actually define the contours of disputed issues. And, frankly, RFAs are a way to “shake” a lawsuit that is not being prosecuted and just needs to be dismissed.

Jolly v. State, 2021-KA-00318-COA (Criminal – Felony)
Affirming conviction of four counts of statutory rape, holding that the circuit court did not err in denying the defendant’s motion to suppress his statement to law enforcement because there was no merit to the defendant’s claims that he lacked capacity to voluntarily waive his rights or that he was coerced into waiving his rights and giving a statement.
(Judge Westbrooks concurred in part and in the result without separate written opinion.)

Hood v. A & A Excavating Contractors, Inc., 2021-CA-00207-COA (Civil – Property Damage/Statute of Limitations/Continuing Tort)
Affirming summary judgment dismissing the plaintiffs’ residential flooding claims against a developer and the operator of a gravel pit based on the statute of limitations, holding that the “discovery rule” did not toll the statute of limitations which began to run upon notice of the injury not the cause of the injury and the “continuing tort doctrine” did not apply where there were no “continual unlawful acts” by the defendants.
(McCarty concurred in part and dissented in part, joined by Judge Westbrooks and Judge Lawrence, and joined in part by Judge McDonald and Judge Smith. Judge McDonald dissented without separate written opinion. Judge Emfinger did not participate.)

NOTE– I though this was a helpful summary and application of the continuing tort doctrine:

Dortch v. State, 2021-CP-00103-COA (Civil – PCR)
Affirming the circuit court’s dismissal of the plaintiff’s PCR motion and motion to vacate judgment and finding no error in the circuit’s revocation of the plaintiff’s PRS.
(All judges concurred.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion related to the plaintiff’s 2011 conviction of felony evasion and sentence to life without parole as a habitual offender (with eight prior felony convictions), holding that the Eighth Amendment claim is barred by the doctrine of res judicata and without merit and that the circuit court did not err in refusing to consider mitigating circumstances surrounding Skinner’s juvenile convictions.
(Judge McCarty concurred in part and dissented in part. Judge McDonald dissented, joined by Chief Judge Barnes and Judge Westbrook, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

NOTE – The majority and the dissenting opinions contain robust discussions of the Eight Amendment analysis.

Other Order

 Tallent v. State, 2020-CP-01077-COA (denying motion for rehearing)

Hand Down List Page

Mississippi Court of Appeals opinions of May 10, 2022

The Mississippi Court of Appeals set a new record since the launch of this blog by handing down fourteen opinions. After briefly contemplating a dash to the exit, I decided to slog through all of them so you don’t necessarily have to. Needless to say, there is something for everybody today!

(Apologies for the all-but-certain uptick in typos)

Fugler v. Bank of Brookhaven, 2021-CA-00303-COA (Civil – Personal Injury/Premises Liability)
Affirming summary judgment in favor of the defendant in a slip and fall case, holding that the plaintiff, who allegedly tripped on a floor mat but testified she did not see the mat before tripping, failed rebut the defendant’s summary judgment motion and supporting affidavit stating that the bank had no knowledge of prior incidents with its floor mats or any issues with the mat involved, that around 300 customers entered the bank daily and the bank was not aware of any prior mat-related trips or complaints, that the mat was heavy-duty commercial grade and was replaced annually to prevent wear, and that bank employees constantly monitored the floors.
(All judges concurred.)

Keys v. Military Department Gulfport, 2021-WC-00352-COA (Civil – Workers’ Comp)
Reversing the Commission’s finding that the Employer/Carrier was entitled to a credit for indemnity payments that the claimant received but assigned back to the employer during the time the claimant was receiving paid sick leave, holding that since the claimant was awarded permanent total disability benefits, section 25-3-95(2)(b) (prohibiting a state employee from using accrued personal and/or medical leave and receiving workers’ comp to earn more than 100% of his state-employment wages) did not apply.
(Judge Wilson specially concurred, joined in part by Judge McCarty.)

NOTE – I think Judge Wilson’s special concurrence provides a clearer path forward in workers’ comp cases: Regardless of whether the indemnity benefits during the time in question were classified as TTD or PTD, the claimant was entitled to a total of 450 weeks of indemnity benefits (however classified) and since the claimant did not receive any indemnity benefits during the period he was assigning benefits back to the Employer, the Employer/Carrier were not entitled to a credit for those weeks.

Smith v. State, 2021-CP-00099-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se plaintiff’s PCR petition, holding that the plaintiff presented no evidence to show a reasonable ground for the trial court to believe he was incompetent to plead guilty.
(All judges concurred.)

Prystupa v. Rankin County Board of Supervisors, 2020-CA-01049-COA (Civil – MTCA/Statute of Limitations/Latent Injury)
Affirming the dismissal of a flooding damage MTCA claim based on the running of the statute of limitations, holding that this claim was an MTCA negligence claim subject to a one-year statute of limitations that began to run when the plaintiff knew or should have known of both the injury and its probable cause. In this case, the Court of Appeals held that the statute of limitations began to run when the plaintiff knew of the flooding (the injury) and knew it was due to a blocked drain (the cause) as opposed to when he found out that crushed pipe caused the blocked drain (i.e. caused the cause). The Court of Appeals also affirmed the circuit court’s denial of the plaintiff’s Rule 59(e) motion to aleter or amend based on fraudulent concealment and the circuit court’s denial of the plaintiff’s motion for leave to amend his complaint to add claims of nuisance and trespass.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Emfinger did not participate.)

TAKE HEED, lest you fall victim to the distinction between “statutory tolling” and “MTCA tolling”:

Schmidt v. Schmidt, 2020-CA-01253-COA (Civil – Custody)
Affirming the chancellor’s decision granting sole physical custody to the mother, holding that there was no error in finding that the deterioration of the parties’ ability to co-parent constituted a material change in circumstances entitling the mother to sole physical custody and no error in the application of the Albright factors.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s judgment affirming the Mississippi Employee Appeals Board’s decision upholding the claimant’s termination, holding that the claimant’s procedural due process rights were not violated because he was provided notice of the charges and an opportunity to be heard, that his substantive due process rights and rights under the MS State Personnel Board rules were not violated because the MEAB’s decision was supported by substantial evidence and was not arbitrary, and that the claim that the claimant was terminated because of communications with his wife and that the MEAB’s decision was based on uncorroborated hearsay was without merit.
(All judges concurred.)

McIntosh Transport, LLC v. Love’s Travel Stop & Country Stores, Inc., 2021-CA-00154-COA (Civil – Contract/Arbitration)
Reversing the circuit court’s order granting the defendants’ motion to compel arbitration, holding that the contract containing the contract was not binding on the plaintiff because it was signed by a 19-year-old who signed his grandfather’s name and whose only authority was the actual authority to retrieve the truck following repairs that did not include the authority to bind the company to arbitration.
(Chief Judge Barnes concurred in part and in the result without separate written opinion. Judge Carlton concurred in the result only without separate written opinion.)

Case v. Case, 2020-CA-01047-COA (Civil – Custody/Equitable Distribution of Marital Property/Albright Factors/Ferguson Factors)
Affirming the chancellor’s decision on child custody, but reversing the chancellor’s decision on the equitable distribution of marital property. Regarding custody, the Court of Appeals held that the chancellor’s application of the Albright factors was supported by substantial evidence. Regarding equitable distribution, the Court of Appeals affirmed all of the chancellor’s findings except his valuation of the marital property which it reversed and rendered due to a calculation error.
(Judge Wilson and Judge Westbrooks concur in part and in the result without separate written opinion.)

MY TAKE – Few, if any, of us are in the legal field because of a proclivity for math yet it still haunts us all.

Wadley v. Hubbs, 2021-CA-00866-COA (Civil – Real Property/Notice of Appeal)
Reversing the circuit court’s dismissal of the plaintiff’s appeal from a county court judgment as untimely, holding that the plaintiff’s notice of appeal that was stamped “Filed” after the county court’s judgment but before disposition of the plaintiff’s motion to set aside the judgment was effective and timely even though the header of the notice said “IN THE COUNTY COURT” because the body of the notice made it clear the plaintiff was appealing to the circuit court and the notice was stamped “Filed” by the circuit clerk.
(All judges concurred.)

Murray v. State, 2021-KA-00264-COA (Criminal – Felony/Hearsay/Rule 412)
Affirming conviction of statutory rape, holding that the circuit court erred in allowing the victim’s mother’s to testify about a neighbor’s out-of-court statement, but that it was harmless and “essentially cumulative evidence of non-criminal activity that [the defendant] admitted.” The Court of Appeals also held that the circuit court did not err in denying the defendant’s ore tenus request to compel the victim’s counseling records because even though a determination of whether the records were privileged could not be made until the records were examined, the defendant did not comply with Rule 412 of the Mississippi Rules of Evidence. The Court of Appeals also held that the plaintiff’s claims of ineffective assistance of counsel for failure to request an alibi instruction, failure to object to hearsay, failure to request a limiting instruction regarding the hearsay testimony, and failure to make a timely request for the victim’s counseling records did not entitled him to relief on this appeal.
(All judges concurred.)

Bailey v. State, 2021-KA-00281-COA (Criminal – Felony/Lindsey Brief)
Affirming conviction of fondling of a six-year-old and sentence to life imprisonment as a violent habitual offender, noting that the defendant’s appointed appellate counsel filed a Lindsey brief and holding that the defendant’s pro se brief arguing that the trial court lacked jurisdiction and that his indictment was not marked “filed” was factually mistaken and without merit.
(Judge Smith did not participate.)

Finley v. PERS, 2021-SA-00089-COA (Civil – State Boards and Agencies/PERS/Disability)
Reversing the circuit court’s judgment affirming PERS Medical Board’s denial of the plaintiff’s claim for non-duty-related disability retirement benefits, holding that PERS’s assessment of the plaintiff’s job requirements and ability to perform her job was arbitrary and capricious. The case was remanded for PERS to determine if the plaintiff could perform the true duties of registrar with her disability and the support staff, if any, she had at the time.
(Judge Wilson concurred in part and in result without separate written opinion.)

Boyd v. MDOC, 2021-CC-00459-COA (Civil – State Boards and Agencies/MDOC)
Affirming the MDOC’s disciplinary actions against the plaintiff whose oversight led to MDOC’s failure to issue an arrest warrant for a probationer who did not report to his assigned probation office upon release from MDOC custody who then killed two Brookhaven police officers in the line of duty, holding that the plaintiff failed to meet her burdens of proof and persuasion to overcome the presumption of correctness due MDOC’s decision.
(All judges concurred.)

Parker v. Ross, 2020-CA-01055-COA (Civil – Wills, Trusts, and Estates)
Affirming in part and reversing in part the chancery court’s grant of summary judgment in a claim alleging mismanagement of a trust and to recover real property that was allegedly improperly sold. The Court of Appeals affirmed the chancellor’s judgment in part, holding that any claims governed by the three-year statute of limitations were time-barred. The Court of Appeals also reversed the chancellor’s judgment in part, holding that the allegations related to the mismanagement of the trust were subject to a ten-year statute of limitations and that one of the plaintiffs had created a genuine issue of material fact as to his unsoundness of mind and remanded this matter to the chancery court for further proceedings.
(Judge Emfinger dissented, joined by Judge Wilson and Judge Greenlee and joined in part by Judge McDonald.)

Other Orders

Lawrence v. State, 2021-TS-1324-COA (providing, on the court’s own motion, the appellant and his attorney, Wayne Dowdy, one final opportunity to show cause why this appeal should not be dismissed as untimely)

Phew…

We did it, folks.

Mississippi Court of Appeals decisions of May 3, 2022

There is no peddling of leaked drafts on this blog, folks. Just genuine, final opinions from the Mississippi Court of Appeals and Mississippi Supreme Court, locally sourced and responsibly harvested from the Court’s official hand down page. Today, we have eight opinions from the Mississippi Court of Appeals including several criminal cases (one involving the admissibility of social media messages), an auto liability/road construction case with another MTCA-related hybrid bench/jury trial, a will contest, and PERS disability case.

Simmons v. Jackson County, Mississippi, 2020-CA-01014-COA (Civil – Wrongful Death/MTCA/Auto Liability/Hybrid Trial)
Affirming circuit court’s ruling that the county bore no responsibility for a driver’s fatal accident that occurred when his vehicle left the road and struck a culvert, holding that there was sufficient evidence to support the circuit court’s finding that the driver’s negligence in failing to exercise vigilant caution as he drove through a work zone was the sole proximate cause of the accident.
(Judge Westbrooks dissented, joined by Judge Carlton and Judge McDonald.)

NOTE – This was another was with an MTCA defendant and a non-MTCA defendant. In addition to the county, the plaintiff sued Mallette, a construction company that had repaved the road prior to the acccident. The trial court held a hybrid jury/bench trial:

At the conclusion of the plaintiff’s case-in-chief, the circuit involuntarily dismissed the joint venture claim against the County and Mallette. At the conclusion of the trial, the jury returned a verdict in favor of Mallette. The circuit court then entered findings of fact and conclusions of law concluding that the county created a dangerous condition but that the driver’s negligence was the sole proximate cause of the accident and therefore held that the county was not liable.

Dyer v. State, 2021-KA-00016-COA (Criminal – Felony/Sexual Battery)
Affirming conviction of sexual battery of a teenage girl, noting that the defendant’s appointed counsel had filed a Lindsey brief, the defendant had not filed his own brief, and that the Court’s review of the record yielded no arguable issues of appeal.
(All judges concurred.)

Smith v. Public Employees Retirement System of Mississippi, 2021-SA-00051-COA (Civil – State Boards and Agencies/PERS)
Affirming denial of a correctional offer’s application for duty-related benefits, holding that the PERS decision was not clearly erroneous, contrary to law and not supported by substantial evidence.
(All judges concurred.)

Wofford v. State, 2020-KA-01341-COA (Criminal – Felony/Burglary/Accomplice Liability)
Affirming convictions of and sentences for two counts of burglary of a dwelling, holding that the circuit court did not err when it denied the defendant’s motion for directed verdict, his request for a peremptory instruction, or his motion for JNOV arguing that he could not be convicted of burglary because there was no evidence that he had broken, entered, or stolen, because the Court reasoned the defendant was indicated for burglary as a principal based on his actions as an accessory before the fact; the circuit court did not err in giving an accomplice-liability instruction; and the circuit court did not err in granting the State’s motion in limine excluding testimony about the amount of money that was taken in the burglary.
(Judge McDonald concurred in result only without separate written opinion. Judge Smith did not participate.)

Adams v. State, 2020-KA-01383-COA (Criminal – Felony/Armed Robbery/Indictment)
Affirming conviction of armed robbery, holding that the jury’s verdict was not against the overwhelming weight of the evidence; that the circuit court did not err by not sua sponte preventing a former associate of the defendant from testifying that he had pleaded guilty to the armed robbery in question in response to a question that was not objected to; that the circuit court did not err by allowing the defendant’s former associate’s recorded interview to be played at trial; that although the State’s attempts to amend the indictment were ineffective because the State failed to procure a written order allowing the indictment, the original indictment was not fatally defective; and that the defendant was not entitled to a new trial under the cumulative error doctrine.
(Judge Westbrooks concurred in result only without separate written opinion.)

Smart v. State, 2020-KA-00835-COA (Criminal – Felony/Exploitation of a Child/Social Media)
Affirming conviction of exploitation of a child and a twenty-year sentence, holding that there was no error in the admission of Kik messages because they had been sufficiently authenticated and that there was no prosecutorial misconduct in stating that the Kik messages were from the defendant and correlated with a printout of the defendant’s phone records.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Practice Point – If you need to get social media communications admitted (or if you are trying to keep them out) here is the Mississippi Supreme Court’s guidance, as stated by the Court of Appeals in this opinion:

Briggs v. State, 2020-KM-01350-COA (Criminal – Misdemeanor)
Affirming conviction of driving under the influence of marijuana and simple possession of marijuana in a motor vehicle, holding that the evidence was sufficient to support his conviction and that the conviction was not against the overwhelming weight of the evidence.

NOTE – The defendant argued that the State failed to prove he was “influenced” by the marijuana because the State Trooper testified that he never saw the defendant operate the vehicle except to pull the vehicle to the side of the road. The unimpressed Court noted that the State does not have the burden of proving impaired driving, and that the Trooper’s testimony that he smelled strong marijuana odor from the vehicle and observed the defendant’s watery and bloodshot eyes was sufficient.

Dunn v. Hart, 2020-CA-01229-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s findings that the testator/mother had mental capacity to execute a 2015 will but that one of her children (who happened to be the recipient of the mother’s entire estate in the will) failed to rebut the presumption of undue influence by clear and convincing evidence.

NOTE – This is a fact-bound opinion and I do not think any summary I could write of the facts would be particularly helpful, and it would certainly not be a substitute for reading this opinion if it applies to your practice.

Other Orders

Manhattan Nursing and Rehabilitation Center, LLC v. Hollinshed, 2020-CA-00882-COA (denying rehearing)

Hand Down Page

Summaries of the Mississippi Court of Appeals opinions of April 26, 2022

The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.

I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today.
Thanks,
Management

Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence)
Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate.
(Judge Wilson concurred in part and the in the result without separate written opinion.)

Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR)
Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied.
(All judges concurred.)

Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation)
Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence.
(All judges concurred.)

PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:

This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)

Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale)
Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue.
(All judges concurred.)

Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:

NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.

Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation)
Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question.
(All judges concurred.)

Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn)
Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do.
(Judge Smith did not participate, all other judges concurred.)

Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure)
Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right.
(All judges concurred.)

Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence)
Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence.
(All judges concurred.)

Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act)
Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation.
(Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)

NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).

Other Opinions

Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing)
Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of April 19, 2022

The Court of Appeals handed down four opinions today. One case addresses the chancery court’s jurisdiction to hear an appeal challenging cost adjustments from the Department of Medicaid. There is one PCR case with an interesting concurrence regarding the State’s immunity from default judgments. The other two cases are criminal cases: one involving assault of a police officer and the other involving a trial that did not go well for the one co-conspirator who opted not to plead guilty.

Poplar Springs Nursing Center v. Mississippi Division of Medicaid, 2020-SA-01333-COA (Civil – Boards and Agencies)
Affirming the chancery court’s ruling that it did not have subject matter jurisdiction to review a series of cost adjustments by the Department of Medicaid, holding that the nursing home failed to exhaust its administrative remedies by failing to seek timely review of cost adjuster letters.
(Judge Emfinger did not not participate, all participating judges concurred.)

Porras v. State, 2021-CP-00052-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that there was no error in denying the request for appointed counsel for the PCR hearing, no error in failing to require the State to file a written response to the PCR motion, and, ultimately, no error in denying the PCR motion.
(Judge McCarty wrote special concurrence, joined by Judge McDonald

NOTE: Judge McCarty’s special concurrence thoughtfully addressed the argument that the petitioner was entitled to a default judgment because the State failed to respond the PCR motion in violation of an order of the circuit court. McCarty first set out the law and policy behind establishing a broad prohibition of default judgments against the State. He then wrote that the petitioner had a right to expect the State to comply with the circuit court and had other possible remedies, but that default judgment was not an available remedy.

Bradford v. State, 2021-KA-00509-COA (Criminal – Felony/Simple Assault)
Affirming conviction and sentence for simple assault of a police officer, holding that the evidence was sufficient to establish lawful arrest and that the officer sustained a bodily injury including, but not limited to, evidence of an attempted biting that was thwarted by the officer’s jacket and a kick to the groin that found its mark.
(Judge McDonald concurred in part and in the result without separate written opinion and Judge Westbrooks concurred in result only without separate written opinion.)

Edwards v. State, 2021-KA-00259-COA (Criminal – Felony/Armed Robbery)
Affirmed conviction and sentence for armed robbery and conspiracy to commit armed robbery, holding that the evidence (including evidence from co-conspirators turned State’s witnesses) was sufficient for a reasonable jury to find the elements of a conspiracy to rob a GameStop were proved beyond a reasonable doubt and that the convictions of armed robbery and conspiracy to commit armed robbery were not against the weight of the evidence.
(All participating judges concurred.)

Other Orders

None

Hand Down List Link

Summaries of the Mississippi Court of Appeals opinions of April 12, 2022

The Mississippi Court of Appeals handed down two opinions today, one criminal and one civil. The criminal opinion affirmed a conviction, finding no merit on a litany of issues. The civil opinion affirmed summary judgment on a breach of contract claim based on a personal guaranty included in a credit application with a business’s supplier.

Barnes v. State, 2021-KA-00404-COA (Criminal – Felony/Hearsay/Jury Instructions/Rule 404(b))
Affirming conviction of two counts of fondling, holding (1) no error in jury instruction re: sufficiency of unsubstantiated/uncorroborated, but not contradicted/discredited, testimony of victim of a sex crime to support guilty verdict; (2) no error in allowing testimony by investigator “based on professional experience” because not expert opinion; (3) error in allowing hearsay was harmless because the same information was also introduced through admissible source; (4) Rule 404(b) objection re: other students who reported misconduct waived because not made contemporaneously and because it showed why the school initiated an investigation; (5) no error in admitting recorded conversations between victim and defendant where intelligible recording was not produced until the first day of trial (at least partially because defense did not request more time to prepare); (6) no error in admitting purported statement of the defendant over discovery violation objection because the statement had produced in discovery and defense counsel admitted being familiar with it; (7) no merit to ineffective assistance of counsel claim; and (8) the evidence was sufficient to support the convictions. The court of appeals invoked the plain error doctrine to remand the case for correction of a scrivener’s error in the sentencing order.
(Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge McCarty concurred in result only without separate written opinion.)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (Civil – Contract/Personal Guaranty/Affirmative Defenses)
Affirming the circuit court’s grant of summary judgment in favor of the plaintiff/supplier, holding that there was no error in finding that the owners of a company had personally bound themselves to pay their company’s debt to the plaintiff/supplier per the terms of a credit application that contained a personal guaranty. The court of appeals noted that the defendants did not attach affidavits in response to the summary judgment motion that addressed the guaranty:

The court of appeals then held that the plaintiff/supplier–a secured creditor– had no duty to mitigate before filing a lawsuit for damages and that the defendant that asserted fraud in response to the motion for summary judgment had waived that affirmative defense by failing to plead it in his answer to the complaint.
(All judges concurred.)

Other Orders

Hartzler v. Bosarge, 2019-CT-01606 (granting motion to dismiss appeal as interlocutory)

Doe v. Doe, 2020-CA-00853-COA (denying motion for rehearing)

Braswell v. Braswell, 2020-CA-01090-COA (denying motion for rehearing)

Nunn v. State, 2021-TS-01371-COA (granting pro se motion for out-of-time appeal and granting motion to withdraw and substitute counsel)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of Feb. 15, 2022

Anderson v. S&S Properties, LLC, 2021-CA-33-COA (Civil – Real Property/Summary Judgment/Tax Sale)
Affirming summary judgment granted by the chancery court setting aside a tax sale and ordering the county to refund the purchase price to the purchaser, holding that the purchaser had standing and that the county failed to serve proper notice of the tax sale to the assessed property owners. Note: The COA held that the purchaser had standing to sue in this particular case because the amended version of Miss. Code Ann. § 27-25-27(2) did not apply retroactively. The amended statute provides: “No purchaser of land at any tax sale, nor holder of the legal title under him by descent or distribution, shall have any right of action to challenge the validity of the tax sale.”

Ford v. State, 2020-KA-278-COA (Criminal – Felony/Criminal Procedure)
Affirming conviction of first-degree murder, holding:
1. The defendant was not entitled to a directed verdict under Weathersby because the Weathersby issue was procedurally barred and because Weathersby did not apply in this case where there was contradicting.
2. The circuit court did not err by not allowing the defendant to represent himself because the defendant did not expressly make such a request.
3. The circuit court did not err in allowing an investigator to testify about his recollection of a verbal statement the defendant gave to law enforcement.
4. The defendant’s counsel was not constitutionally ineffective for not proposing a “stand your ground” instruction (trial strategy), not filing a motion for new trial or JNOV (this was deficient, but not “prejudicial” in that there is no reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different), not arguing the Weathersby rule (Weathersby was already held to be inapplicable), and not subpoenaing eyewitness testimony (trial strategy).
5. There was no prosecutorial misconduct during closing argument when the prosecutor argued that the trajectory of the bullet showed that the defendant and the victim were not fighting for the gun.
6. The defendant’s should not be reversed as a result of cumulative error because the other issues on appeal were without merit.

Diversicare of Meridian, LLC v. Shelton, 2020-CA-1362-COA (Civil – Contract/Arbitration Agreement)
Affirming the circuit court’s denial of a motion to compel arbitration in a wrongful death nursing-home case, holding that the nursing home failed to provide sufficient proof that the resident gave her daughter, who signed admissions paperwork including an arbitration agreement, authority to bind the resident to arbitrate any future disputes arising from her stay.
NOTE: Although the court of appeals affirmed the denial of the motion to compel arbitration, it held that the circuit court erred in ruling that written authority was required. Specifically, the court of appeals held: “[A] mentally competent individual may orally grant authority to another person to sign documents required for admission to a nursing home.”

Rutland v. Burroughs, 2020-CA-1100-COA (Civil – Torts/Civil Procedure)
Affirming the circuit court’s grant of summary judgment dismissing a malicious prosecution and intentional infliction of emotional distress lawsuit after the plaintiff’s attorney withdrew, the 60-day period given to the plaintiff to retain new counsel or proceed pro se passed without any such action taken by the plaintiff and the plaintiff did not file a timely response to the motion for summary judgment.

Robinson v. Smith, 2020-CA-1249-COA (Civil – Personal Injury/Counter-Claim/Civil Procedure)
Reversing the circuit court’s grant of summary judgment that was based on a default judgment on a counter-claim, holding based on the plain language of Rules 7, 12, and 13, the counter-claim was procedurally improper because it was not asserted in the answer and the plaintiff therefore has no obligation to respond to it.

Lambes v. Lambes, 2020-CA-95-COA (Civil – Domestic Relations/Custody)
Affirming the chancery court’s ruling that it was in the best interest and welfare of the children to place them in the father’s custody, holding that the father was not precluded from being awarded custody after he admitted to the ground of habitual cruel and inhuman treatment when that admission was based on the chancellor’s statement that all rights regarding custody etc would be preserved, and that there were not misrepresentations in the GAL report warranting reversal when the record showed the chancellor made his decision based upon independent findings of fact.

Tillman v. KLLM Transport, 2021-WC-57-COA (Civil – Workers’ Comp/One-Year Limitations Period)
Affirming the MWCC’s dismissal of a workers’ comp claim based on the one-year limitations period, holding that the dismissal of the workers’ comp claim for the claimant’s failure to file a pre-hearing statement is a “rejection of the claim” sufficient to start the one-year limitations period under section 71-3-53 regardless of when or if a B-31 was filed.

Shannon v. Shannon, 2020-CA-847-COA (en banc) (Civil – Domestic Relations)
Affirming the chancery court’s rulings granting divorce on the ground of habitual cruel and inhuman treatment, granting a permanent restraining order against and divesting title from the at-fault party, applying the Ferguson factors, and denying a motion to continue or to allow remote participation.

Williams v. State, 2020-CP-950-COA (en banc) (Civil – PCR)
Reversing the circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the circuit court did not have sufficient evidence to revoke the defendant’s post-release supervision because (1) the defendant was not convicted of the crime that prompted the revocation of his PRS and (2) there was insufficient evidence in the record that the defendant had failed to pay fees, fines, and restitution. This case was remanded to the circuit court for further proceedings.

Other Orders
4 Denials of Motions for Rehearing

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