Category: Court of Appeals

Mississippi Court of Appeals Decisions of December 3, 2024

The Mississippi Court of Appeals handed down seven opinions today. It was a big day for real property and wills. There are also two criminal appeals, an MTCA personal injury case, and a PCR case.

Pham v. Miner, 2023-CA-00266-COA (Civil – Real Property)
Reversing the chancellor’s decision in a dispute over ownership of a parcel, holding that the chancellor erred in finding that a deed was defective and subject to interpretation with parol evidence and further that the chancellor failed to make a specific ruling on the adverse possession claim.
(9-0: Smith did not participate)

Estate of Forkner: Berry v. Forkner, 2023-CA-00707-COA (Civil – Wills, Trusts & Estates)
Affirming in part and reversing in part the chancellor’s rulings related to the construction of a holographic will, holding that the chancellor did not err in admitting the will to probate, in finding that real property should pass by intestate succession, or in awarding personal property to one party, but reversing and remanding the issue of attorney’s fees for the chancellor’s failure to apply the McKee factors with supporting findings.
(8-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing)

Lewis v. State, 2023-CP-01109-COA (Civil – PCR)
Affirming summary denial of PRC motion, holding that it was time-barred without applicable exception.
(9-0: Smith did not participate)

Booth v. State, 2023-KA-00906-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding after review of Lindsey brief and the record that there are no arguable issues on appeal.
(10-0)

Lucas v. State, 2023-KA-01015-COA (Criminal – Felony)
Reversing conviction of malicious mischief, holding that malicious mischief is not a lesser-included offense of the indicted offense of burglary of a dwelling.
(9-1-0: Lawrence concurred in part and in result without writing)

Smith v. Anderson, 2022-CA-00959-COA (Civil – Real Property)
Affirming the chancellor’s decision in a dispute among cousins over 159 acres, holding that the chancellor did not err in dismissing a counterclaim of adverse possession or in “failing to address” affirmative defenses that were not pursued, and that an issue not raised in the chancery court was waived on appeal.
(10-0)

Berry v. Jackson County, 2023-CA-00643-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the County in an MTCA suit stemming from a collision with a suspect who was fleeing law enforcement, holding that the plaintiff did not present evidence that the County acted in reckless disregard of her safety.
(5-3-0: Wilson and McDonald concurred in part and in result without writing; Westbrooks concurred in result only without writing; Lawrence and Smith did not participate)

Other Orders

  • Hyland v. State, 2023-CA-00256-COA (denying rehearing)
  • Aldridge v. South Tippah County School District, 2023-CA-00418-COA (denying rehearing)
  • Estate of Johnson: Manners v. Estate of Johnson, 2023-CA-00823-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of November 19, 2024

The Mississippi Court of Appeals handed down two opinions today. Both are direct criminal appeals. I will be out of the office on Thursday, so I’ll include this week’s Mississippi Supreme Court decisions in a post next week.

Smith v. State, 2023-KA-00703-COA (Criminal – Felony)
Affirming conviction of of burglary of a dwelling and possession of a weapon as a felon, holding that the verdict was not against the overwhelming weight of the evidence where the jury was presented with two different narratives of the altercation and performed its duty to weight the credibility of the competing evidence.
(10-0)

Ellzey v. State, 2022-KA-00797-COA (Criminal – Felony)
Affirming conviction of three counts of fondling, holding that the trial court did not err in denying the motion to quash the indictment, in finding that an alleged statement by a juror regarding the incompetency of a government agency did not constitute impermissible outside influence, in limiting cross-examination of a witness, in not excluding or limiting counseling records under the plain error doctrine, in overruling the defendant’s objection to allegedly speculative testimony, in overruling a hearsay objection because the testimony was not offered to prove the truth of the matter asserted, in overruling an objection to other allegedly speculative testimony (or committed harmless error), in overruling an objection to testimony that allegedly vouched for the victim’s credibility, or in not sua sponte objecting to statements in closing argument, and dismissing the ineffectively assistance of counsel claim without prejudice, holding that there could be no cumulative error where there was at most one harmless error, and holding that other issues were waived for failure to raise them in the trial court.
(9-1-0: McCarty specially concurred, joined by Westbrooks and McDonald)

Other Orders

  • Martin v. Arceneaux, 2022-CA-01035-COA (denying rehearing)
  • Smith v. Mitchell, 2023-CA-00259-COA (denying rehearing)
  • Carpenter v. State, 2023-KA-00580-COA (denying rehearing)
  • Shipp v. State, 2023-KA-00655-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of November 12, 2024 (and one from November 7)

The Mississippi Court of Appeals handed down three opinions today: one MTCA personal injury case, one direct criminal appeal, and one claim against the parole board. The Court also handed down one opinion on Thursday of last week in a direct criminal appeal.

Alexander v. State, 2023-KA-00331-COA (Criminal – Felony) (Nov. 7, 2024)
Affirming conviction of six counts of exploitation of a child and sentence to forty-years for each court to run consecutively, holding (Part One) that the trial court did not err in denying the motion to sever the six counts of child exploitation; the trial court did not err in denying a generic motion to exclude prior bad acts or in ruling on subsequent objections to testimony of prior bad acts during trial; the trial court did not err in overruling the defendant’s objections during trial to opening statement comments, to questions during various witness examinations, or to the introduction of a photographs of the defendant and a victims; the trial court did not err in denying a motion for mistrial after a witness mentioned conduct related to one of the severed counts; (Part Two) there was sufficient evidence to support the conviction; the verdicts were not contrary to the overwhelming weight of the evidence; and the sentence was not grossly disproportionate to the crimes.
As to Part One, 8-1: McDonald concurred in part and dissented in part without writing; Carlton did not participate.
As to Part Two, 6-1-2: Wilson concurred in result only; Emfinger dissented in part, joined by Barnes; Carlton did not participate.

Allred v. Tishomingo County, 2023-CA-00569-COA (Civil – Personal Injury)
Affirming judgment in favor of the County after an MTCA bench trial in a personal injury action that arose after a limb fell on the roof of the plaintiffs’ vehicle, holding that the County had no statutory duty to inspect or maintain the right-of-way, that the County had no actual or constructive notice that the tree was a dangerous condition, that the County did not proximately cause the damages, that the trial court’s analysis of expert testimony was not mainfestly wrong or clearly erroneous, and that the trial court did not abuse its discretion admitting opinions from the County’s expert.
(10-0)

PRACTICE POINT– The County moved to strike the plaintiffs’ reply brief or portions of it on the grounds that it referenced materials that were not designated as part of the record on appeal. The Court denied the motion to strike as moot because it declined to consider the documents that were not in the record on appeal pursuant to M.R.A.P. 10 and 30(a).

Walker v. State, 2023-KA-00860-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the trial court did not err in denying a motion to suppress the interrogation video where the defendant argued his statement was improperly obtained after he requested counsel because the defendant did not actually invoke his Sixth Amendment right to counsel with regard to the charged offense, holding that the confession was voluntary, and holding that the verdict was not against the overwhelming weight of the evidence.
(9-1-0: McCarty concurred in result only without writing)

Siggers v. Mississippi Parole Board, 2023-CP-00900-COA (Civil – Other)
Affirming the trial court’s dismissal of the petitioner’s “show cause motion” seeking the compel the Parole Board to show case as to why his parole was denied and was not set for hearing until 2025, holding that the trial court correctly determined that it lack authority to review the parole board’s decision to deny parole and set off the parole hearing.
(8-2-0: Westbrooks and McDonald concurred in part and in the result without writing)

Other Orders

  • Scott v. State, 2022-KA-00830-COA (denying rehearing)
  • Morland v. Morland, 2023-CA-00237-COA (granting appellee’s motion for appellate attorney’s fees)
  • Weeks v. Weeks, 2023-CA-00427-COA (denying rehearing)
  • Walker v. Hasty, 2023-CA-00675-COA (denying motion for appellate attorney’s fees)
  • Corr Properties, LLC v. Proctor, 2023-CA-00782-COA (granting motion for appellate attorney’s fees)
  • Miller v. State, 2023-CP-00812-COA (dismissing motion for rehearing as untimely)
  • Thadison v. State, 2024-TS-00389-COA (granting pro se motion to recall mandate and reinstate appeal)
  • Mallett v. State, 2024-TS-01091-COA (allowing appeal to proceed as appellant’s response to show-cause notice was well taken)
  • Rodgers v. State, 2024-TS-01116-COA (suspending deadline to appeal pursuant to M.R.A.P. 2(c) and allowing appeal to proceed)

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Mississippi Court of Appeals Decisions of November 5, 2024 and Mississippi Supreme Court Decisions of November 7, 2024

In what was certainly the biggest new story from Tuesday, the Mississippi Court of Appeals handed down five opinions. Today, the Mississippi Supreme Court handed down one opinion and one order amending the Mississippi Rules of Civil Procedure. You can read about all below.

Mississippi Court of Appeals – November 5, 2024

Patton v. State, 2023-CP-00618-COA (Civil – PCR)
Affirming summary dismissal of PCR motion, holding that the motion was successive and untimely with no available exceptions and that the motion was meritless.
(9-0: Smith did not participate)

Slade v. City of Lumberton, 2023-CA-00830-COA (Civil – Personal Injury)
Affirming summary judgment in a MTCA personal injury case stemming from a police pursuit, holding that the trial court did not err in finding no reckless disregard based on the undisputed facts and that the trial court did not err in denying the motion to recuse based on the judge’s prior representation of the City.
(6-3: McDonald dissented, joined by Westbrooks and McCarty; Weddle did not participate)

McDill v. Scott County School District, 2023-CA-00956-COA (Civil – Personal Injury)
Reversing summary judgment in an MTCA case stemming from a student’s weightlifting injury at school, holding that the school district was not entitled to discretionary-function immunity.
(10-0)

The University of Mississippi Medical Center v. Redd, 2023-CA-00711-COA (Civil – Med Mal)
Affirming a bench trial verdict of $500,000 in a med mal case, holding that there was substantial evidence to support the trial court’s findings that the doctor breached the standard of care by not ordering lab work or further testing which, in turn, would have revealed the infection and prevented the amputation, and holding that the trial court did not abuse its discretion in admitting testimony of an orthopedic surgeon who primarily practiced in a different subspecialty than the treating doctor.
(8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)

Morgan v. Riverboat Corporation of Mississippi, 2023-CA-00379-COA (Civil – Personal Injury)
Affirming summary judgment in a personal injury case where the plaintiff was struck by poolside cushions blowing in the wind while she was closing out her tab at the swim-up bar, holding that the trial court did not err in finding that they cushions were not an unreasonably dangerous condition and that there was no evidence of negligence on the part of the defendant.
(7-3: Westbrooks dissented, joined by McDonald and Lawrence)

Other Orders

  • Sinquefield v. The City of Ridgeland, 2022-CA-01276-COA (denying rehearing)
  • In Re Estate of Warren: Warren v. Maharrey, 2023-CA-00438-COA (denying rehearing)

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Mississippi Supreme Court – November 7, 2024

Childress v. State, 2023-KA-01323-SCT (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 it.
(9-0)

Other Orders

  • In Re: The Rules of Civil Procedure, 89-R-99001-SCT (amending M.R.C.P. 62 – the order states that the amendment is effective 30 days after the date of the order which was entered on October 31, 2024)

Here are the amendments to Rule 62 (subsections (c) through (h) were not altered):

  • Mississippi State University v. Zhang, 2024-M-00344-SCT (denying rehearing)
  • Hertz Jackson Three, LLC v. Sanders, 2024-M-00497-SCT (denying interloc)
  • Mississippi Baptist Medical Center, Inc. v. Butler, 2024-M-00930-SCT (denying interloc)

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Mississippi Court of Appeals Decisions of October 22 and October 29, 2024

The Mississippi Court of Appeals handed down four opinions last week and seven this week. You can read summaries of the lot below.

October 22, 2024

Hampton v. State, 2023-KA-00068-COA (Criminal – Felony)
Affirming convictions of first-degree murder and using a firearm during the commission of a felony, but vacating the consecutive five-year sentence for using a firearm during the commission of a felony where he was also sentenced to life.
(9-0: Weddle did not participate)

Baur v. Ribelin, 2023-CA-00018-COA (Civil – Real Property)
Affirming on direct and cross appeal in an adverse possession action, holding that the chancellor did not err in denying the claim for adverse possession or in confirming title in the rightful owner.
(8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)

Johnson v. SW Gaming LLC, 2023-CA-00505-COA (Civil – Personal Injury)
Affirming the circuit court’s decisions granting the defendants’ motions for summary judgment in an inadequate security case, holding that the evidence was not sufficient to establish an atmosphere of violence or actual or constructive knowledge that the assailant was a violent person and the evidence was not sufficient to establish garden variety negligence.
(9-0: Weddle did not participate)

In the Interest of A.R.H., a Minor: Malone v. Jackson County Dept. of Child Protection Services, 2023-CA-00420-COA (Civil – Custody)
Affirming the youth court’s custody order, holding that the youth court was in its discretion to find aggravated circumstances warranting bypassing reasonable efforts for reunification and that there were no evidentiary errors.
(5-4: Wilson and Westbrooks dissented without writing; McDonnald dissented, joined by Westbrooks and McCarty)

October 29, 2024

Banks v. Banks, 2023-CA-00515-COA (Civil – Domestic Relations)
Dismissing appeal for want of an appealable judgment.
(9-0: Weddle did not participate)

Ware v. State, 2023-CP-00909-COA (Civil – PCR)
Affirming summary denial of PCR motion, holding that the motion was time-barred and successive.
(9-0: Weddle did not participate)

Morland v. Morland, 2023-CA-00237-COA (Civil – Custody)
Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in finding that it was in the child’s best interest to be in the mother’s exclusive custody subject to visitation, in calculation and award of child support to the mother, or in awarding the mother attorney’s fees.
(9-0: Weddle did not participate)

Mallard v. State, 2023-CP-01155-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the petitioner could not duck the successive petitions bar by proving any exceptions.
(7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing)

Sessums v. Chicken Nugget, Inc., 2023-CA-00128-COA (Civil – Personal Injury)
Affirming summary judgment in a premises liability case where the plaintiff tripped over two parking curbs, holding that the plaintiff did not come forward with evidence to prove that two abutting parking curbs created an unreasonably dangerous condition.
(9-0: Weddle did not participate)

Scott v. State, 2023-KA-00559-COA (Criminal – Felony)
Affirming conviction of one count of child abuse and conviction of life imprisonment without eligibility for parole for a father who abused his infant child, holding (1) that the admission of the father’s prior conviction for failure to register as a sex offender was not reversible error though it was error to refer to it as “failure to register as a sex offender” instead of “failure to register” which was the actual language in the prior sentencing order, (2) that the conviction was supported by sufficient evidence, and (3) the verdict was not against the overwhelming weight of the evidence.
(4-5-0: Wilson and Smith concur in part and in the result without writing; Westbrooks, McDonald, and Lawrence concur in result only without writing; Weddle did not participate)

Tisdale v. South Central Regional Medical Center, 2023-CA-00231-COA (Civil – Med Mal)
Affirming dismissal for failure prosecute, holding that the trial court did not err in reviewing the motion under Rule 41(b) instead of Rule 37, did not miscalculate the delay and correctly found clear delay with no activity occurring to advance the case to judgment in over two years, and did not abuse its discretion in determining that anything less than a dismissal would be unjust.
(6-3: McDonald concurred in part and dissented in part without writing; Lawrence dissented, joined by McCarty, and joined in part by McDonald)

NOTE – The dissent argued that the majority discounted the impact of COVID.

Other Orders

October 22, 2024

  • Weatherly v. Weatherly, 2022-CA-00804-COA (denying rehearing)
  • Signaigo v. Grinstead, 2022-CA-01212-COA (denying rehearing)
  • Jackson v. State, 2023-KA-00201-COA (denying rehearing)
  • Neal v. Cain, 2023-CP-00625-COA (denying rehearing)
  • Washington v. State, 2024-CP-00059-COA (granting pro se motion to recall mandate and accept untimely brief)

October 29, 2024

  • Wilson v. State, 2023-CA-00070-COA (denying rehearing)
  • Shanks v. State, 2023-CP-00271-COA (denying rehearing)
  • Davis v. State, 2023-KA-00636-COA (denying rehearing)
  • Bradley v. State, 2023-CP-0764-COA (denying rehearing)

Hand Down Page – October 22, 2024

Hand Down Page – October 29, 2024

Mississippi Court of Appeals Decisions of October 15, 2024

The Mississippi Court of Appeals handed down five opinions today. Two are direct criminal appeals, one is a divorce case addressing child support and division of property, one is an easement case, and the other is a med mal case dismissed for lack of prosecution. Though he did not participate any of today’s decisions, newly minted Judge John D. Weddle made his debut on the hand downs today.

Chapman v. Chapman, 2023-CA-00615-COA (Civil – Domestic Relations)
Reversing findings of the chancellor in a divorce action, holding that the chancellor erred in his calculation of the father’s adjusted gross income and remanding for child support recalculation and holding that the chancellor erred concerning whether a boat was marital or non-marital property.
(5-4-0: Wilson and McCarty concurred in part and in the result without separate written opinion; Carlton and Westbrooks concurred in result only; Weddle did not participate)

Word v. U.S. Bank, 2023-CA-00160-COA (Civil – Real Property)
Reversing the chancellor’s judgment in an easement case, holding that the chancellor erred in awarding an easement by necessity because the plaintiff was not entitled to an easement by necessity and presented no evidence regarding the costs of using an available alternative access route.
(8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)

Randall v. State, 2023-KA-00587-COA (Criminal – Felony)
Affirming conviction of aggravated assault and first-degree murder, holding that the trial court did not err in excluding evidence of one victim’s postmortem toxicology report showing the presence of recreational drugs in his system or in applying the firearm enhancement.
(8-1-0: Westbrooks concurred in result only without writing; Weddle did not participate)

Eason v. South Central Regional Medical Center, 2023-CA-00261-COA (Civil – Medical Malpractice)
Affirming dismissal of a complaint for failure to prosecute a med mal case against a nursing home, holding that the circuit court did not abuse its discretion in dismissing the case pursuant to Rule 41(b) after two years of delay.
(5-1-3: Westbrooks concurred in part and in the result without writing; McDonald dissented without writing; Lawrence dissented, joined by McDonald and McCarty; Westbrooks joined in part; Weddle did not particiapte)

N0te – The dissent’s position was that the COVID-10 pandemic was a mitigating factor and that the trial court’s failure to consider it was an abuse of discretion. It concludes:

Cauthen v. State, 2023-KA-00589-COA (Criminal – Felony)
Affirming conviction of non-residential burglary, holding that the trial court did not err in refusing to instruct the jury on the lesser-included offense of trespass.
(8-0: Emfinger and Weddle did not participate)

Other Orders

  • Archer v. Harlow’s Casino Resort & Spa, 2022-CP-01060-COA (denying rehearing)
  • Doss v. State, 2022-KA-01185 (denying rehearing)
  • Black v. State, 2022-KA-01223-COA (denying rehearing)
  • Jiles v. State, 2023-CP-00383-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of October 8, 2024

The Mississippi Court of Appeals handed down eight opinions today. There are four direct criminal appeals, a workers’ comp case, a civil asset forfeiture case, a real property case regarding a short-term rental, and an attorney fee claim against an estate.

Body v. State, 2023-KA-00495-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the trial court did not abuse its discretion refusing the defendant’s alibi instructions where the “alibi defense was nothing more than attempt to cloak his simple denial of the crime charged.”
(8-1-0: Wilson concurred in part and in the result without writing)

Lepard v. State, 2022-KA-01159-COA (Criminal – Felony)
Affirming conviction of fondling, holding that the trial court did not abuse its discretion in instructing the jury on the elements of the offense and that the indictment was not defective and included all the essential elements.
(9-0)

In the Matter of the Estate of Stimley: Morton Law Firm, PLLC v. Merchant, 2023-CA-00940-COA (Civil – Contract)
Reversing the chancery court’s award of attorney’s fees and expenses payable by the estate, holding that the record did not show a consideration of the McKee factors and remanding for further proceedings.
(8-1-0: Carlton did not participate)

Chung v. State, 2023-CA-00362-COA (Civil – Other)
Reversing the circuit court’s decision in a civil asset forfeiture after a bench trial, holding that the owner gave plausible explanations for having the cash and that the State presented insufficient evidence to demonstrate a connection between the owner and drug activity.
(5-4: Wilson dissented, joined by Carlton, Lawrence, and Emfinger)

Norton v. State, 2023-KA-00475-COA (Criminal – Felony)
Affirming conviction of possession of meth and possession of a firearm by a felon, declining to address the lone issue of ineffective assistance of counsel on direct appeal and leaving it to be pursued through a PCR motion.
(8-1-0: Emfinger concurred in result only without writing)

Arnold v. State, 2023-KA-00519-COA (Criminal – Felony)
Affirming conviction of three counts of sexual battery, holding that the trial court did not allow improper character evidence from two witnesses that testified the defendant made advances or abused them as children because that testimony showed proof of motive and established a common plan or scheme and holding that there was no merit to the defendant’s claim of prosecutorial misconduct.
(8-0: Smith did not participate)

City of Biloxi v. McDonald, 2023-CA-00777-COA (Civil – Real Property)
Affirming the circuit court’s judgment which reversed the City Council’s decision denying property owners’ application seeking a conditional-use permit for a short-term rental, holding that the Council’s decision was “the epitome of arbitrary and capricious” where the adjacent property on the same parcel of land had been approved and the owners had spent $70,000 on improvements to address neighbors’ expressed concerns.
(6-2: Carlton dissented, joined by Wilson and Lawrence)

Doukas v. Kiln Self Storage, 2023-WC-01195-COA (Civil – Workers’ Comp)
Affirming a finding that the claimant was not entitled to indemnity benefits for her left left leg and that the injury to her right leg did not render her permanent and totally disabled, holding that the Commission’s decision was supported by substantial evidence.
(5-4: Lawrence dissented, joined by Westbrooks, McDonald, and Smith; McDonald also noted a separate dissent without writing)

Other Orders

  • White v. The Home Depot, 2022-WC-00894-COA (denying rehearing)
  • Frazier v. State, 20222-CT-00896 (denying pro se motion to recall mandate)
  • Brown v. State, 2023-CP-00171-COA (denying untimely pro se motion for additional time to file motion for rehearing and request for appointed counsel)
  • Haley v. Brewer, 2023-SA-00571-COA (denying rehearing)
  • Fortner v. Bratcher, 2023-CP-00663-COA (granting appelle’s motion for appellate attorney’s fees)
  • Thornhill v. Thornhill, 2023-CA-00714-COA (denying appellee’s motion to dismiss the appeal and granting appellee’s request for additional time to file a responsive brief)
  • Quilantan v. State, 2024-CP-00357-COA (granting pro se motion to reinstate appeal)
  • Johnson v. State, 2024-TS-00650-COA (remanding appellant’s motion for leave to proceed in forma pauperis)
  • Riley v. State, 2024-TS-00833-COA (dismissing appeal for lack of appealable judgment)

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Mississippi Court of Appeals Decisions of September 24, 2024

The Mississippi Court of Appeals handed down four opinions today. Three are PCR cases and the other is a direct criminal appeal.

Walker v. State, 2023-CP-00787-COA (Civil – PCR)
Affirming dismissal of a PCR motion, holding that the trial court properly dismissed the motion for failure to first seek relief through MDOC’s ARP regarding the calculation of a sentence.
(9-0)

Farris v. State, 2023-CP-00845-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the trial court did not err with regarding to sentence enhancements and that there was no prejudice in the trial court no recusing sua sponte such that there was a reversible abuse of discretion.
(9-0)

Ward v. State, 2023-CA-00378-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time barred by the UPCCRA.
(7-1-0: Westbrooks concurred in result only without writing; Emfinger did not participate.)

Simmons v. State, 2023-KA-00518-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not err in the self-defense instructions given and that there was sufficient evidence to sustain the conviction.
(9-0)

Other Orders

  • Course v. State, 2022-KA-00760-COA (denying rehearing)
  • Holt v. State, 2023-KM-00121-COA (denying motion to correct the court’s prior opinion)
  • Hamer v. State, 2023-CP-00701-COA (denying rehearing)

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I had a hearing in Copiah County Circuit Court yesterday and that was my first time in the courthouse in Hazlehurst. It is a beautiful, three-story building with a central rotunda and a dome that is visible from the ground floor. I did not get a good picture of the courtroom, but it is circular with gallery seating wrapped-around on the ground floor and on a second-floor balcony. A great, small-town Mississippi courthouse!

Mississippi Court of Appeals Decisions of September 17, 2024

The Mississippi Court of Appeals handed down nine opinions on this Constitution Day. There is something for just about everyone but PCR enthusiasts. Today’s opinions include personal injury cases, divorce cases, a real property case, an arbitration-award confirmation case, a youth court case, and a direct criminal appeal.

Franks v. Franks, 2023-CA-00088-COA (Civil – Domestic Relations)
Affirming final judgment of divorce, holding that the chancellor did not err in diving the martial home and ordering the husband to sell his portion to the wife where the husband agreed to do so, did not penalize the husband for embezzlement that occurred at his business but did not abuse her discretion in finding the husband’s adulterous relationship with the embezzler relevant in the Ferguson analysis, did not abuse her discretion in weighing the valuations of the marital property, did not abuse her discretion in awarding the wife attorney’s fees, did not abuse her discretion in not crediting the husband for payments made toward the marital home after the date of demarcation when he received the benefit of living in the home, and did not err in determining the amount of child support.
(8-0: Carlton did not participate)

Zemek v. Gunn, 2023-CA-00833-COA (Civil – Other)
Affirming the circuit court’s order denying a continuance and confirming an arbitration award, holding that the defendant waived the issue of timeliness and that, in any event, the confirmation petition was timely and that the circuit court did not abuse its discretion in denying a continuance.
(9-0)

Fox v. Allen Automotive, Inc., 2023-CA-00441-COA (Civil – Personal Injury)
Reversing summary judgment in favor of a car dealership in a premises liability action, holding that the trial court erred in finding that the plaintiff exceeded the scope of his invitation and became a trespasser where the plaintiff was injured while walking his dog and that because the plaintiff was an invitee there was a genuine issue of material facts as to whether the dealership had constructive knowledge of the dangerous condition.
(9-0)

NOTE – The plaintiff was walking a Heeler when he fell. If anyone ever claims that you can’t hear a footnote, you can refute them with this:

Anderson v. Grabmiller, 2023-CA-00593-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision awarding alimony to the husband, holding that the chancellor did properly consider rehabilitative alimony and that the chancellor did not err in his Armstrong analysis.
(9-0)

Brown v. State, 2023-KA-00648-COA (Criminal – Felony)
Affirming conviction of second-degree murder but vacating the firearm enhancement portion, holding that the firearm enhancement should be vacated because the minimum sentence for that enhancement was less than the minimum sentence for the second-degree murder conviction, but that the State’s commends during closing did not rise to the level of plain error, that the ineffective-assistance-of-counsel claim should be denied without prejudice, that the trial court did not abuse its discretion admitting evidence of a shell casing recovered from the murder scene, that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, and that there was no cumulative error warranting reversal.
(8-1-0: Westbrooks concurred in part and in the result without writing)

Jones v. Curtis, 2023-CA-00987-COA (Civil – Domestic Relations)
Affirming decision modifying child-custody agreement, holding that the chancery court had subject matter jurisdiction and did not err in considering facts and events occurring before the initial custody determination.
(7-2-0: McDonald and McCarty concurred in part and in the result without writing)

Cook v. Vowell, 2023-CA-00724-COA (Civil – Real Property)
Affirming chancery court’s grant of specific performance of an option to purchase an interest in real property, holding that the chancellor did not err in finding that there was consideration for the contract where there was no separate consideration spelled-out for the option or in finding that there was a valid offer and acceptance.
(9-0)

In the Matter of L.C.: Doe v. Bolivar County Youth Court, 2022-CA-00614-COA (Civil – Other)
Reversing the youth court’s finding that the mother had not satisfactorily completed a service plan working towards reunification, holding that there was no substantial evidence to support the youth court’s finding that MDCPS had made requisite “reasonable efforts” towards reunification.
(7-2: Westbrooks dissented, joined by McDonald; McDonald also separately noted a dissent but did not write)

Georgen v. Estate of Brown-Barrett, 2023-CA-00344-COA (Civil – Personal injury)
Reversing the trial court’s grant of summary judgment in a premises-liability case, holding that the trial court erred in finding that a baby gate leaned against a doorway in a residence did not constitute a dangerous condition.
(5-3: Carlton dissented, joined by Barnes, and Wilson; Westbrooks did not participate)

Other Orders

  • Whiddon v. State, 2022-KA-00616-COA (denying rehearing)
  • Crawford v. East Mississippi State Hospital, 2022-CA-00753-COA (denying rehearing)
  • Jackson v. State, 2022-KA-01143-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of September 3, 2024 and September 10, 2024

The Mississippi Court of Appeals handed down six opinions last week and three opinions this week. Since I was out of the office last Tuesday I included last week’s cases in this post. Between the two dates there there are a couple of service-of-process cases, a few personal injury cases, a couple of domestic relations cases, direct criminal appeals, and a two PCR cases. Appellants prevailed in all three of today’s cases.

September 3, 2024

Havard v. Hart, 2023-CA-00260-COA (Civil – Personal Injury)
Affirming dismissal for insufficient service of process, holding that there was substantial evidence supporting the trial court’s finding that the defendant had not been properly served and that the plaintiff did not have good cause for failing to timely serve process.
(8-1-0: McDonald concurred in result only without writing)

Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (Civil – Other)
Dismissing appeal of order denying a motion to reinstate an order obtaining expunging a contractor’s lien, holding that the initial order expunging the lien was not a final appealable order and that subsequent orders on motions revising the interim order were not final either.
(8-1-0: Wilson concurred in part and in the result without writing)

Hyland v. State, 2023-CA-00256-COA (Civil – PCR)
Affirming the trial court’s dismissal of PCR motion challenging his convictions and seeking an out-of-time appeal, holding that motion was time-barred and successive.
(9-0)

Fortner v. Bratcher, 2023-CP-00664-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings related to motions for contempt and custody modification, holding that the chancellor did not abuse his discretion finding the father in contempt, carrying forward the parties’ agreed visitation schedule, or enjoining the parties from contacting CPS with allegations of neglect or abuse without first contacting local law enforcement.
(9-0)

Miller v. State, 2023-CP-00812-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that it was barred by the UPCCRA’s statute of limitations.
(9-0)

Wilkerson v. Allred, 2023-CA-00393-COA (Civil – Personal Injury)
Reversing the trial court’s grant of summary judgment dismissing claims for emotional distress damage after the defendant shot and killed the plaintiff’s puppy in the head as it sat next to the plaintiff’s twelve-year-old sister, holding that there was a jury question on the issue of whether the plaintiff’s emotional distress injuries were reasonably foreseeable to the defendant.
(4-3-2: Wilson and McDonald concurred in part and in the result without writing; Westbrooks concurred in the result only without writing; Carlson dissented, joined by Emfinger and joined in part by McDonald.)

September 10, 2024

Bell v. State, 2023-CA-00951-COA (Criminal – Felony)
Vacating and remanding revocation of a suspended sentence, holding that the trial judge was automatically disqualified because she had previously served as the ADA for the underlying conviction.
(7-2: Barnes dissented, joined by Wilson)

Wells v. Wells, 2023-CA-00674-COA (Civil – Domestic Relations)
Reversing the chancery court’s judgment granting the wife’s petition for divorce and divesting the husband of his interest in real property, holding that there was no evidence that the husband was properly served.
(4-1-4: Emfinger concurred in part and in the result without writing; Wilson dissented, joined by Barnes, Lawrence and Smith.)

Deere v. Taylor, 2023-CA-00063-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit, holding that the prohibition against claim-splitting was not triggered where the plaintiff filed one lawsuit but was unable to serve the defendants and months later filed a second lawsuit asserting the same causes of action against the same parties while the first lawsuit sat stale.

Other Orders

  • Daly v. Raines, 2022-CT-00600-SCT (denying appellant’s to voluntarily dismiss this appeal)
  • McKenzie v. McKenzie, 2022-CA-01175-COA (denying rehearing)
  • Estate of Staten: Staten v. Pedersen, 2023-CA-00228-COA (denying untimely motion tor additional time to file a motion for rehearing)
  • Stewart v. State, 2024-TS-00606-COA (dismissing appeal as untimely)

September 3, 2024 Hand Down Page

September 10, 2024 Hand Down Page