The Mississippi Court of Appeals handed down three opinions on Tuesday. The case that stood out to me was Murphy v. William Carey University not because of the result but because of how the Court of Appeals discussed the Horton doctrine. The special concurrence pulled no punches.
Frazier v. State, 2022-KA-00896-COA (Criminal – Felony) Affirming conviction of first-degree murder with firearm enhancement, holding that the circuit court did not err in denying a heat-of-passion manslaughter instruction and did not abuse its discretion in refusing to allow the defendant to read proffered testimony from the first trial that ended with a mistrial on the first-degree murder charge. (10-0)
Murphy v. William Carey University, 2022-CA-00379-COA (Civil – Med Mal) Reversing the trial court’s grant of summary judgment in a med mal case based on lack of pre-suit notice and the statute of limitations, holding that the defendant waived those defenses by failing to pursue them while actively participating in litigation. (7-2: Lawrence specially concurred joined by McDonald, Smith, and Emfinger, and joined in part by Wilson and Westbrooks; Greenlee dissented, joined by Carlton)
NOTE – I find the discussion of the Horton doctrine fascinating. The majority opinion and the special concurrence threw some shade at the development of the Horton doctrine and how it has been applied. The majority opinion included this statement and footnote:
The special concurrence upped the ante and sharply criticized the state of the Horton doctrine. I read the special concurrence (carrying four votes and two “in part” votes) as a challenge to the Mississippi Supreme Court to clean up the Horton doctrine:
The special concurrence concluded with this:
I am not sure this is the best “test case” for the Horton doctrine based on the facts, but I will be watching for a cert petition.
The City of Pascagoula, Mississippi v. Cumbest, 2022-CA-00745-COA (Civil – State Boards & Agencies) Reversing on direct appeal and reversing on cross-appeal in a case over whether private property was “menace” under Miss. Code Ann. section 21-19-11, holding that the circuit court erred in reversing the city council’s determination that the property was a “menace” and finding no abuse of discretion in the circuit court’s denial of the property owner’s decision denying the owner’s motion to compel production of documents. (5-4: Westbrooks concurred in part and dissented in part without separate written opinion; McDonald concurred in part and dissented in part, joined by Wilson, Westbrooks, and McCarty; Lawrence did not participate)
NOTE – The concurrence took issue with the City making the “menace” determination based on the condition of the property before the hearing and not at the time of the hearing.
Other Orders
Friley v. State, 2021-KA-00791-COA (denying rehearing)
Smith v. Ford, 2022-CA-00255-COA (denying rehearing)
Burns v. BancorpSouth Bank, 2022-CA-00404-COA (denying rehearing)
Moore v. Mississippi Farm Bureau Casualty Insurance Company, 2022-CA-00555-COA (denying rehearing)
Edwards v. State, 2022-KA-00719-COA (recalling mandate and permitting pro se motion for rehearing to proceed)
Scales v. State, 2022-KA-00856-COA (denying rehearing)
Thompson v. Thompson, 2022-CA-01014-COA (dismissing motion for rehearing as untimely)
I was out of the office Thursday for an extended weekend camping trip on Horn Island with my oldest son, so hand downs were a bit lower on my priority list than usual. (Proof submitted below.)
While I was at sea, the Mississippi Supreme Court handed down three opinions and appellants went 2-1.
Tommy Brooks Oil Company v. Wilburn, 2022-CA-00551-SCT (Civil – Contract) Reversing on direct appeal and affirming on cross-appeal after judgments in favor of the defendants on open-account claims, holding that the defense verdict on the open-account was not supported by substantial evidence, and that the plaintiff was entitled to judgment in its favor on liability, and remanding for a new trial on damages and the enforceability of personal guaranty agreements while affirming the denial of the defendants’ claim for attorney’s fees. (8-0: Maxwell did not participate)
In Re: Death Investigation of Christian Andreacchio, 2023-CA-00060-SCT (Civil – Other) Affirming the circuit court’s denial of a petition to appoint an attorney to act as district attorney in an effort to spur prosecutions, holding that Mississippi’s victims’ rights statutes did not grant standing to the Estate and that there is no other basis in Mississippi law to allow a private citizen to direct the State’s prosecutorial powers. (8-1-0: King concurred in result only without separate written opinion)
Lindsey v. Butts, 2022-IA-00738-SCT, consolidated with 2022-IA-00882 (Civil – Wrongful Death) Reversing the circuit court’s denial of the doctor-defendant’s motion to dismiss for lack of process and denial of the hospital defendant’s motion for summary judgment, holding that the trial court erred by not dismissing the complaint against the doctor because he was never legally served with process which left the circuit court lacking jurisdiction over him and holding that the circuit court erred in denying the hospital’s “preemptive” motion for summary judgment because the plaintiff lacked medical-expert testimony even though the plaintiff’s expert designation deadline had not yet passed. (6-3: Maxwell concurred in part (as to medical causation SJ) and dissenting in part (as to service of process), joined by Kitchens and King, and joined in part by Beam)
Other Orders
SDBT Archives LLC v. Penn-Star Ins. Co., 2022-CT-00099-SCT (DIG-ed)
Boyington v. State, 2022-CT-00601-SCT (denying cert)
Walmart Stores East, LC v. Melton, 2022-IA-01028-SCT (dismissing interlocutory appeal)
Mathis v. The Mississippi Bar, 2023-BD-01255-SCT (granting leave to resign in good standing from the practice of law)
The Mississippi Court of Appeals handed down eight opinions today. There was a med mal case dismissed on statute of limitations grounds, an IIED verdict, an interpleader by a bank to determine the appropriate beneficiary-on-death of a CD, a zoning decision, a felony conviction, and a few PCR cases.
Jordan v. States, 2022-CP-00874-COA, consolidated with 2022-CP-00877-COA and 2023-CP-00072-COA (Civil – PCR) Affirming denials of three PCR motions, holding that all three motions were barred as subsequent PCR motions and that no exception to the bar was supported. (10-0)
Jones v. State, 2022-KA-01117-COA (Criminal – Felony) Affirming conviction of two counts of child exploitation after the “underage female” the defendant attempted to meet up with turned out to be an undercover officer, holding that the entrapment jury instruction was properly rejected and that the convictions were not against he overwhelming weight of evidence. (10-0)
Rogers v. NewSouth NeuroSpine LLC, 2022-CP-01036-COA (Civil – Med Mal) Affirming the circuit court’s decision granting the defendant’s motion to dismiss based on the statute of limitations and denying post-judgment motions, holding that the circuit court did not abuse its discretion denying the pro se plaintiff’s Rule 60 motion and also denying the defendants’ motion for sanctions, damages, and fees. (10-0)
Gray v. Johnson, 2023-CA-00339-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in an interpleader initiated by a bank over the proper “pay-on-death” beneficiary of a CD, holding that the designation was latently ambiguous but that extrinsic evidence supported the chancellor’s decision whcih was not an abuse of discretion and was not wrong or clearly erroneous. (6-4-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion; Greenlee concurred in result only without separate written opinion)
Jackson County, Mississippi, v. Marcellus, 2023-CA-00111-COA (Civil – State Boards & Agencies) Reversing the circuit court’s decision that had reversed the decision of the Board of Supervisors denying a request to reclassify property from residential to commercial, holding that the Board’s decision was not arbitrary and capricious that the owner had not proved a change in character and a public need by clear and convincing evidence. (9-0: Lawrence did not participate)
Bain v. State, 2023-CP-00206-COA (Civil – PCR) Reversing dismissal of PCR motion for lack of jurisdiction, holding that the petitioner did not need to obtain permission from the Supreme Court to file his petition. (9-1-0: Emfinger concurred in part and in the result without separate written opinion)
Green v. State, 2023-CP-00448-COA (Civil – PCR) Affirming the dismissal of a PCR motion, holding that the circuit court did not err in finding that the motion was barred as successive and that none of the exceptions applied, and that they lacked merit. (8-2-0: McCarty and Emfinger concurred in part and in the result without separate written opinion.)
Weaver v. Ross, 2022-CA-00426-COA (Civil – Torts) Affirming a judgment in favor of a car restorer against a man who initiated litigation by suing for alleged negligent restoration after a jury trial, holding that the trial court did not err in excluding medical records related to the owner’s blood pressure for lack of authentication and an invoice on allegedly comparative restoration, that the verdict on IIED was supported by sufficient evidence and not against the overwhelming weight of it, and that the trial court did not abuse its discretion in awarding attorney’s fees. (6-4-0: McCarty specially concurred, joined by Greenlee, Westbrooks, McDonald, Lawrence, and Smith; Wilson concurred in part and in the result, joined by Lawrence, McCarty, and Emfinger and joined in part by Greenlee, Westbrooks, McDonald, and Smith.)
NOTE – McCarty’s special concurrence has precedential effect. You should read it for its discussion and clarification of the fact that claims for IIED cannot stem from the distress caused solely by litigation.
Wilson’s concurrence was one full vote short of precedential effect, but was joined in part by four additional judges. Wilson joined Parts I and II of the majority opinion, but parted ways over the analysis of the attorney’s fees issue. Wilson agreed the judgment should be affirmed because the challenge to the award of attorney’s fees was procedurally barred, but would have reversed if it was not barred.
PRACTICE POINT – Wilson’s concurrence contains a good reminder of the importance of reviewing the record on appeal for completeness. Don’t assume the circuit clerk included everything you designated.
Other Orders
DeJohnette v. State, 2022-KA-00249-COA (denying rehearing)
Gilmer v. State, 2022-KM-00257-COA (denying rehearing)
Hutson v. Hutson, 2022-CA-00569-COA (denying rehearing)
Daly v. Raines, 2022-CA-00600-COA (denying rehearing)
The Mississippi Supreme Court handed down four opinions last week. Three were appeals of criminal convictions and the fourth opinion was an interesting tort case discussing a party’s duties to an opposing party during voir dire.
Jackson v. State, 2023-KA-00273-SCT (Criminal – Felony) Affirming conviction of sexual battery and sentence to life imprisonment, holding that there was no error after reviewing counsel’s Lindsey brief and the record. (9-0)
City of Picayune v. Landry Lewis Germany Architects, P.A., 2022-CA-00909-SCT (Civil – Torts – MTCA) Reversing a judgment against the City based on a claim that the City failed to volunteer information about a juror during voir dire in a civil trial to which the City was a party, holding: “A party litigant has no duty to party opposite to personally intervene during a trial to prevent a fraud on the court by a potential juror.” (9-0)
Exson v. State, 2022-KA-01089-SCT (Criminal – Felony) Affirming conviction of burglary of a dwelling, grand larceny, and first degree arson, holding that the issue of whether the State proved its evidence of the value element of the larceny statute was procedurally barred for failure to raise it in a post-trial motion and that the issue of whether the jury instructions were proper was procedurally barred and that there was no plain error. (9-0)
Marbley v. State, 2022-KA-01280-SCT (Criminal – Felony) Affirming conviction of aggravated domestic violence, holding that there were no issues warranting appellate review after reviewing counsel’s Lindsey brief and the record. (9-0)
Other Orders
In Re: Commission on Continuing Legal Education, 89-R-99011-SCT (denying petition of the Commission to amend Rule 3 of the Rules and Regulations for Mandatory Continuing Legal Education)
Ndicu v. Gacheri, 2022-CT-00416-SCT (denying cert)
Wheeler v. Mississippi Limestone Corp., 2022-CT-00534-SCT (denying cert)
The Mississippi Court of Appeals handed down nine opinions yesterday with something for just about everyone. Read on to find yours.
Estate of Douglas v. Green, 2022-CA-00365-COA (Civil – Wills, Trusts & Estates) Affirming on direct appeal and cross appeal in an ongoing estate saga, holding that the argument that interest should have been awarded on the return of insurance proceeds was procedurally barred, the limited award of attorney’s fees was within the trial court’s discretion, the trial court did not abuse its discretion in declining to order the return funds to a joint account, and the cross-appeal was procedurally barred because it did not provide any legal support. (9-1-0: Wilson concurred in result only without separate written opinion)
Stewart v. Stewart, 2022-CA-01122-COA (Civil – Domestic Relations) Affirming the chancellor’s decision on the father’s motion to modify or terminate child support, holding that the father’s obligation to pay for college under the PSA extended past the children turning 21. (10-0)
White v. White, 2022-CP-00823-COA (Civil – Real Property) Affirming in part and reversing in part a chancellor’s decision imposing a constructive trust and ordering the transfer of a parcel of property, reversing the chancery court’s order in limine restricting the defendant from proving affirmative defenses asserted in his answer to the initial complaint and vacating the final judgment imposing a constructive trust, while also affirming the chancery court’s determination that some of the defendant’s payments were voluntary but reversing the determination that all of the payments were voluntary. (8-2-0: Carlton and Wilson concurred in result only without separate written opinion)
Johnson v. State, 2022-KA-00920-COA (Criminal – Felony) Affirming conviction of one count of possession of methamphetamine and one count of trafficking Vyvanse, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence. (8-2-0: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion)
Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (Civil – Workers’ Comp) Affirming the MWCC’s decision denying benefits, holding that there was substantial evidence to support the MWCC’s finding that the claimant was a traveling employee but that he was not in the course of his employment when he was returning to work after a personal, unauthorized mid-week trip home. (6-4: Carlton dissented, joined by Lawrence, McCarty, and Smith)
Practice Point – This is a friendly reminder that “course and scope” is not the test for workers’ comp cases. The MWCA casts a wider compensability net than “course and scope.” Generally, compensation must be paid for injuries “arising out of and in the course of employment.” Miss. Code Ann. § 71-3-7.
Bell v. State, 2023-CP-00631-COA (Civil – Other) Affirming the circuit court’s denial of a petition for expungement, holding that the circuit court did not abuse its discretion because the petitioner failed to present evidence any evidence that he had been rehabilitated. (8-2-0: Lawrence and Smith concurred in result only without separate written opinion)
Nettles v. Nettles, 2023-CA-00041-COA (Civil – Domestic Relations) Affirming the chancery court’s decision granting the husband’s motion for involuntary dismissal, holding that the chancellor did not err in finding that the wife did not prove that she was entitled to a divorce based on habitual cruel and inhuman treatment by a preponderance of the evidence. (6-4: Carlton, Westbrooks, McDonald, and Lawrence dissented without seprate written opinion)
Loving v. MS Eye Care, P.A., 2023-CA-00566-COA (Civil – Personal Injury) Affirming summary judgment in a premises liability case, holding that there was no evidence that the chair the plaintiff fell backwards on was defective or unreasonably dangerous. (9-0: Wilson did not participate)
Blackwell v. Reed, 2022-CP-01037-COA (Civil – Domestic Relations) Affirming the chancellor’s decision denying the ex-husband’s ppetition to terminate or modify alimony, holding that the issues were procedurally barred for failure to cite legal authority or relevant parts of the record and that the appeal otherwise lacked merit. (10-0)
Other Orders
Kirk v. Newton, 2021-CT-00683-COA (denying motion to amend judgment)
Havercome v. State, 2022-CA-00391-COA (denying rehearing)
Phillips v. MDOC, 2022-SA-00392-COA (denying rehearing)
Agee v. State, 2022-KA-00994-COA (denying pro se “request to proceed with petition for rehearing” and dismissing pro se “request to proceed with petition for post-conviction relief”)
Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (denying rehearing)
Johnson v. State, 2022-CP-01186-COA (denying rehearing)
Lawson v. State, 2023-TS-01384-COA (dismissing appeal)
Gates v. State, 2024-TS-00074-COA (allowing appeal to proceed upon finding that show-cause response was well taken)
The Mississippi Supreme Court handed down four opinions last Thursday. There is an appeal of the dismissal of an MTCA claim on summary judgment, an appeal of a Medicaid reimbursement-rate decision, and an appeal by a victorious pro se party. The headliner, however, is the appeal of Willie Godbolt’s convictions for the infamous 2017 shooting of eight people in Lincoln County.
Federinko v. Forrest County, Mississippi, 2023-CA-00204-SCT (Civil – MTCA) Affirming the trial court’s grant of summary judgment for the defendant, holding that the plaintiff failed to allege a tortious or negligent act with respect to the MTCA defendants’ decision not to conduct an autopsy or obtain postmortem blood and fluids. (9-0)
Mississippi Division of Medicaid v. Women’s Pavilion of South Mississippi, PLLC, 2023-SA-00098-SCT (Civil – State Boards & Agencies) Affirming the chancery court’s decision vacating Medicaid’s reimbursement-rate decision, holding that the administrative officer did not have to defer to Medicaid’s initial decision but was to make findings of fact and a determination of the issues presented. (8-0: Beam did not participate)
Stratton v. McKey, 2023-CP-00451-SCT (Civil – Other) Affirming the circuit court’s denial of the pro se plaintiff’s Rule 60 motion to vacate a judgment in his favor that awarded him possession of his classic truck and monetary damages. (9-0)
Godbolt v. State, 2020-DP-00440-SCT (Criminal – Death Penalty – Direct Appeal) Affirming conviction of four counts of capital murder, four counts of first-degree murder, two counts of kidnapping, one count of attempted murder, and one count of armed robbery garnering four death sentences, six life sentences, and two twenty-year terms, holding that the trial court did not err in (1) denying a motion to server; (2) transferring venue to a neighboring county (with a jury drawn from a distant county); (3) “limiting” voir dire where the process lasted four days and produced nearly 800-pages of transcript; (4) denying a motion to suppress statements made to media and law enforcement; (5) denying a motion to suppress evidence obtained from the defendant’s home, vehicle, cell phone, other electronic devices; (6) allowing the defendant’s wife to testify under Rule 601(b)(2); (7) admitting evidence of prior bad acts; (8) admitting 911 calls; (9) not ordering a psychiatric evaluation that the defendant opposed; (10) admitting Facebook messages over an authentication objection; (11) only allowing the defendant (who exercised his right not to testify) limited time for allocution during closing arguments; (12) denying motion to exclude victim impact evidence; and the Supreme Court also (13) deferred the ineffective assistance claim to the PCR phase; (14) held that there was no Brady violation regarding the destruction of the defendant’s phone after all data and information from the phone were given to the defendant; (15) that the defendant’s right to an impartial jury was not violated; (16) held that there was no evidence of prosecutorial misconduct; (17) that the “heinous, atrocious or cruel” aggravator was not unconstitutional; (18) that the death penalty was not unconstitutional; (19) that the death penalty was not disproportional; (20) and that there was no error, so the cumulative error argument was without merit. (7-2: King dissented, joined by Kitchens)
NOTE– You should never treat my summaries as a substitute for reading cases that you intend to rely on. This is especially true in a case like this one. This is probably the longest summary I have posted, but I have only scratched the surface.
Other Orders
Love v. State, 2021-CT-01101-SCT (granting pro se cert petition)
Norwood v. Smith, 2021-IA-01404-SCT (dismissing interlocutory appeal)
Rehabilitation Centers, Inc. v. Williams, 2023-CT-00453-SCT (denying in part and dismissing in part petition for cert and reverse and stay of mandate or in the alternative petition for interlocutory appeal)
I’m back. Again. I would like to think I will go back and summarize the last few weeks that I have missed but that is probably water under the bridge at this point.Pressing forward, the Mississippi Court of Appeals handed down seven opinions today. These decisions cover custody, felonies, personal injury, unemployment, and zoning. Notably, two criminal convictions were reversed.
Patrick v. Patrick, 2021-CA-00891-COA (Civil – Custody) Affirming the chancery court’s denial of the mother’s petition for contempt and modification and granting the father’s motion for modification, holding that the issue of custody was clearly before the chancellor who properly determined that there was a material change in circumstances that adversely affected the children, conducted a proper Albright analysis, and was within his discretion to order a change in legal and physical custody. (8-1-1: McCarty concurred in part and in the result and McDonald concurred in part and dissented in part. Neither wrote.)
Allen v. State, 2022-KA-00419-COA (Criminal – Felony) Reversing convictions six counts of statutory rape, holding that the jury was not properly instructed as to the State’s burden of proof and remanding for a new trial. (9-1-0: McDonald concurred in result only without writing.)
Practice Point: The erroneous instruction was submitted by the defense, but the Court noted that the “invited-error doctrine” did not apply where the jury was not properly instructed on the elements of the crime. Here is the Court’s summary of the issues with the jury instructions:
Fletcher v. State, 2022-KA-00868-COA (Criminal – Felony) Affirming conviction of capital murder and sentence as habitual offender, holding that the trial court did not err when it failed to suppress the defendant’s statement to law enforcement officials. (10-0)
The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (Civil – Other) Affirming the circuit court’s decision denying an ordinance variance to repair a wall/fence that enclosed the petitioner’s property, holding that the petitioner did not waive its challenge to the city’s code interpretation but that the circuit court’s interpretation of the code provisions at issue were not erroneous. (10-0)
Carter v. C&S Canopy, Inc., 2022-CA-00730-COA (Civil – Personal Injury) Affirming summary judgment in favor of a driver and his employer in an auto-negligence case, holding that there was no evidence to support the plaintiff’s claim that the driver negligently continued to drive a “sluggish” truck on the interstate, that the defendants were negligent in their efforts to get the truck towed, that the location of reflective triangles was the proximate cause of the crash, that the defendant could have safely moved the disabled truck anywhere other than where he did, that the driver should have registered as a for-hire carrier, or that the employer negligently failed to train the driver.
Appellate Math Warning: None of us signed up for this.
Marshall v. State, 2022-KA-00541-COA (Criminal – Felony) Reversing conviction of first-degree murder, holding that the circuit court erred in denying the defense’s peremptory strikes of three jurors, holding that the defense provided valid, race-neutral reasons for the strikes. (10-0)
Cain v. M.D.E.S., 2023-CC-00188-COA (Civil – State Boards & Agencies) Affirming denial of claim for unemployment benefits, holding that the circuit court properly dismissed the claimant’s appeal of denial as untimely. (10-0)
Other Orders
Walker v. State, 2022-KA-00482-COA (denying rehearing)
Gregory Meridian Acquisition, LLC v. McFarland, 2022-CA-00580-COA (denying rehearing)
[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]
I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.
February 6, 2024
Porter v. State, 2023-CP-00091-COA (Civil – Other) Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county. (9-0: Smith did not participate)
Gilmore v. State, 2023-CP-00527-COA (Civil – PCR) Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions. (9-0: Emfinger did not participate)
Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract) Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement. (7-2: Westbrooks and McDonald dissented; Smith did not participate)
Practice Point – Cite the record early and often in your briefs:
Moates v. State, 2022-KA-01062-COA (Criminal – Felony) Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot. (10-0)
Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.
Other Orders
Gilbert v. State, 2021-KA-01265-COA (denying rehearing)
Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)
Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence. (9-1-0: McDonald concurred in part and in the result without separate written opinion)
Allen v. State, 2022-KA-00935-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter. (10-0)
Netherland v. State, 2022-CP-01236-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim. (10-0)
Brooks v. State, 2022-KA-01016-COA (Criminal – Felony) Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence. (8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)
EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies) Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review. (8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)
Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property. (10-0)
Wade v. State, 2022-CA-00370-COA (Civil – PCR) Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment. (6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)
Hunter v. State, 2022-CP-01269-COA (Civil – PCR) Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely. (10-0)
Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies) Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings. (3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)
Other Orders
Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)
Odom v. State, 2021-KA-00676-COA (denying rehearing)
Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)
Litton v. Litton, 2022-CA-00712-COA (denying rehearing)
Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)
Patel v. State, 2022-CA-00985-COA (denying rehearing)
Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)
Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)
Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)
Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)
Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)
Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)
The Mississippi Supreme Court handed down two opinions today. One addressed whether a father who relinquished parental rights qualified as a wrongful death beneficiary of the child. The other addressed the status of the “colorable interest standard” for standing analysis. There was also an order granting a petition for reinstatement to the bar.
Gibson v. McNatt,2023-CA-00007-SCT (Civil – Wrongful Death) Affirming the chancery court’s finding that a deceased minor’s father who had previously relinquished all parental duties and rights in Texas was not a wrongful death beneficiary under Mississippi law, holding that the chancery court did not abuse its discretion because the Texas termination order was valid and was not subject to collateral attack under Mississippi law. (9-0)
Pearson v. Eubanks, 2022-CT-00011-SCT (Civil – Wills, Trusts & Estates) Affirming the Court of Appeals that reversed the chancery court’s ruling, holding that the Court of Appeals correctly held that the petitioners had standing, but emphasizing that the Court of Appeals has improperly relied on the “colorable interest standard” that has been abandoned by the Supreme Court. (8-1-0: King concurred in result only without writing)
Practice Point – The Supreme Court’s short opinion had this to say about the colorable interest standard:
Other Orders
Toolpushers Supply Co. v. Mississippi Department of Revenue, 2021-CT-01186-SCT (granting cert)
Prather v. State, 2021-CT-01416-SCT (denying cert)
Prophet v. State, 2022-CT-00933-SCT (dismissing cert petition)
Jones v. The Mississippi Bar, 2022-BR-01256-SCT (granting petition for reinstatement)
Gibson v. McNatt, 2023-CA-00007-SCT (denying motion to take judicial notice, objections and/or responses to various filings, and motions to strike)
The Mississippi Court of Appeals handed down four opinions today and three of them are at least a partial reversal. The lone affirmance was in an MTCA wrongful-death case stemming from a drowning. A PCR decision was affirmed in part and reversed in part, a post-divorce property division decision was reversed, and a police officer’s conviction of culpable-negligence manslaughter was reversed.
Malone v. State,2022-CA-00281-COA (Civil – PCR) Affirming in part and remanding in part the circuit court’s ruling in a PCR matter, holding that the circuit court did not err in rejecting the newly discovered evidence claim but holding that the circuit court erred by not addressing the ineffective assistance of counsel claim with specific findings or conclusions related to that claim. (9-1-0: Westbrooks concurred in result only without writing)
Stephens v. City of Gulfport, 2022-CA-01008-COA (Civil – Wrongful Death) Affirming summary judgment in favor of the city on an MTCA case stemming from a drowning, holding that Mississippi law does not “impose a duty on governmental entities to protect or warn against alleged dangerous conditions on property adjacent to property owned or operated by that governmental entity and not caused by the governmental entity” and that, in any event, the MTCA’s open and obvious defense applied to the river and barred the claim. (9-1-0: Westbrooks concurred in result only without separate written opinion)
Thompson v. Thompson, 2022-CA-01014-COA (Civil – Domestic Relations) Reversing the chancellor’s property division ruling, holding that the judgment was a final, appealable order and that the chancellor erred in failing to conduct a proper Ferguson analysis. (10-0)
Fox v. State, 2022-KA-00988-COA (Criminal – Felony) Reversing conviction of a police officer for culpable-negligence manslaughter against, holding that “[b]ased on the credible evidence presented at trial, no evidence establishes that Fox acted in a grossly negligent manner or that the victim’s death from minor abrasions was reasonably foreseeable under the circumstances,” that the verdict was against the overwhelming weight of the evidence (though this holding was relegated to a footnote) and holding that the circuit court abused its discretion by failing to give an accident or misfortune jury instruction. (5-1-4: Wilson concurred in part and in the result without writing; Emfinger dissented, joined by Westbrooks, McDonald, and McCarty)
Mississippi Appeals Blog 