I was expecting opinions from the Mississippi Supreme Court today but the Court’s hand down page now says its next hand down is scheduled for January 12. Those will be the Supreme Court’s first opinions of the year, and its first since December 15. The Mississippi Court of Appeals is scheduled to hand down its second slate of the year on January 10. See you then!
Category: Supreme Court
Mississippi Supreme Court Decisions of December 15, 2022
The Mississippi Supreme Court handed down two opinions today. One is a criminal case dealing with a Confrontation Clause violation and the other is a judicial estoppel case that reversed the trial court because of an intervening decisions with a special concurrence that garnered a majority of the Court. The Supreme Court also granted cert in a slip-and-fall case that I had not summarized because the decision from the Court of Appeals was handed down back in June on a Thursday instead of Tuesday so it escaped my notice.
Saunders v. NCAA, 2020-CA-01146-SCT (Civil – Torts)
Reversing the trial court’s dismissal of claims based on judicial estoppel, holding that the plaintiff had no duty to disclose claims for declaratory relief during his Chapter 7 bankruptcy and that the dismissal of the money damages claim was in error per an intervening special concurrence that held that judicial estoppel should not be presumed and is, rather, a fact-specific inquiry that must include how the bankruptcy could dealt with the omission.
(7-2: Justice Coleman concurred in part and dissented in part; Justice Griffis concurred in part and dissented in part)
PRACTICE POINT – Regular readers might recall a discussion about the special concurrence referenced in today’s decision. The case is Jones v. Alcorn State University, 337 So. 3d 1062 (Miss. 2022) and Justice Maxwell’s special concurrence in that case was joined by four other justices. I wondered aloud about the precedential effect of a five-justice special concurrence and then later passed along the answer. In Saunders, the Mississippi Supreme Court reversed the trial court based upon the holding of the special concurrence in Jones.
Willis v. State, 2021-KA-00734-SCT (Criminal – Felony)
Affirming conviction of first degree murder, holding that the trial court violated the defendant’s rights under the Confrontation Clause by not allowing cross-examination of the lead investigator about prior inconsistent statements but that the error was harmless, that the trial court did not err in denying the defendant’s self-defense instruction, and that the conviction was supported by sufficient evidence.
(6-3-0: Justice Beam concurred in part and in the result, joined by Chief Justice Randolph and Justice Maxwell)
NOTE – For some reason it jumped out that both Kitchens’s majority opinion and Beam’s concurrence utilized the superior (per Strunk & White) “-s’s” to make Williams’s name possessive.
Other Orders
In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing Hon. Mark A. Maples as a member of the Complaint Tribunal)
In Re: Tavares Reed, 2017-M-01391 (denying application for leave to proceed in the trial court, finding it frivolous, and restricting the petitioner from filing further applications in forma pauperis)
Moffett v. State, 2018-DR-00276-SCT (denying rehearing and/or reconsideration)
Thomas v. Boyd Biloxi LLC, 2021-CT-00265-SCT (granting cert)
NOTE – I did not recall this case from June. I looked back and realized it escaped my notice because it was an an off-cycle hand-down from the Court of Appeals on Thursday, June 2. The plaintiff slipped and fell on a pool deck after exiting a hot tub. A 5-1-4 Court of Appeals affirmed summary judgment dismissing the case, holding that the evidence did not satisfy the standard to defeat summary judgment and that the trial court did not err in denying part of the plaintiff’s 56(f) request.
Mississippi Supreme Court Decisions of December 8, 2022
The Mississippi Supreme Court handed down to five opinions today. One wades into a contingency-fee contract dispute, one is a statutory interpretation case involving the bond for appeals by former public school employees, one addresses the admissibility of a defendant’s lay testimony that he suffers from PTSD, and two are related to Bar disciplinary proceedings.
Gilmer v. McRae, 2021-CA-00028-SCT (Civil – Contract)
Affirming the trial court’s dismissal of a complaint stemming from a dispute over a contingency fee arrangement and its award of attorney’s fees, holding that the defendant’s attorneys (who were also defendants) were immune from suit as they were acting in their capacity as attorneys, there was no abuse of discretion in awarding attorney’s fees against the plaintiff, and there was no abuse of discretion in denying the plaintiff’s amended motion to amend.
(9-0)
Greenville Public School District v. Thomas, 2021-IA-00456-SCT (Civil – State Boards and Agencies)
Affirming on interlocutory appeal the chancellor’s decision setting the bond for an appeal by a former public school district employee, holding that section 37-9-113(2) does not require a bond to cover the cost of the transcript and that there was no abuse of discretion in setting the bond at the statutory minimum of $200.
(8-1-0: Justice Ishee concurred in part and and in the result)
Bland v. State, 2021-KA-00973-SCT (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by excluding the defendant’s lay testimony claiming he suffered from PTSD.
(5-4-0: Justice Kitchen concurred in part and in the result, joined by Justice King, Justice Coleman, and Justice Ishee–this concurrence opined that the exclusion was error but that the error was harmless)
Louvier v. The Mississippi Bar, 2022-BR-00205-SCT (Civil – Bar Matters)
Granting reinstatement over the Bar’s opposition.
(9-0)
The Mississippi Bar v. Petty, 2022-BD-00402-SCT (Civil – Bar Matters)
Ordering public reprimand and payment of the Bar’s costs.
(9-0)
Other Orders
In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing or reappointing members of the Advisory Committee on Rules)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CT-00781-SCT (denying cert where COA affirmed summary judgment for defendant in slip and fall case as summarized here) [*Corrected link]
Mississippi Supreme Court Decisions of December 1, 2022
The Mississippi Supreme Court handed down two opinions today. The first addresses the applicable standards for taking testimony of minors 12 or older in custody disputes. The other is a 5-4 split on whether a minor can be bound by a noncompete that covers intellectual property and provides for liquidated damages under the exception for contracts “affecting personal property.”
Denham v. Denham, 2020-CT-00675-SCT (Civil – Custody)
Affirming and part and reversing in part a chancellor’s rulings in a custody dispute, holding that the chancellor applied the incorrect legal standard in deciding that the children could not testify and erred by failing to record the in-chambers interviews, that a parent does not have an absolute right to call an unemancipated teenager to testify in open court, and that if one parent is permitted to present evidence of adultery the other parent must also have the opportunity to present such evidence.
(9-0)
NOTE – This opinion has an interesting discussion of the tender years exception as it applies to teenagers on page 13:
Watercolor Salon, LLC v. Hixon, 2021-IA-01151-SCT (Civil – Contract)
Affirming the trial court’s denial of a salon’s motion for TRO and preliminary injunction against a former employee who was 20-years-old when she signed a noncompete, holding that it was not fundamentally a contract affecting personal property and that it was unenforceable since the former employee disaffirmed the contract.
(5-4: Chief Justice Randolph concurred in part and dissented in part, joined by Justice Chamberlin, Justice Ishee, and Justice Griffis.)
NOTE – Here is the Court’s summary of its rationale for its holding that the employment contract was not a contract “affecting personal property”:
Other Orders
Loden v. State, 2002-DP-00282-SCT (granting motion to set execution date)
Brewer v. Bush, 2020-CT-00214-SCT (denying cert)
Gordon v. Dickerson, 2020-CT-00601-SCT (denying rehearing)
Seals v. Stanton, 2020-CA-00741-SCT (denying rehearing)
Pipkin v. State, 2021-CT-00517-SCT (denying cert)
Pickle v. State, 2021-CT-00972-SCT (denying cert)
Luster v. State, 2022-M-00248 (granting application for leave to proceed on filing petition for post-conviction collateral relief in the trial court)
Mississippi Supreme Court Decisions of November 17, 2022
I did not post Court of Appeals decisions on Tuesday because I was in an all-day deposition and went from there to a pinewood derby. I will try to catch up on those later. But today the Mississippi Supreme Court handed down two opinions. One deals with the MTCA’s venue provisions in a wrongful-death case and the other disposes of an appeal of felony convictions and sentencing with an interesting Fourth Amendment analysis.
Jones County v. Estate of Bright, 2021-IA-00631-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of venue change in an MTCA case stemming from a police chase that killed a bystander, holding on interlocutory appeal that under the MTCA venue was only proper in the counties where the administrative offices of the political-subdivision defendants are located (Jones or Lauderdale), and not where the acts or omissions occurred (Pearl River) because the state was not a named defendant.
(8-0: Chief Justice Randolph did not participate)
Fisher v. State, 2021-KA-00828-SCT (Civil – Felony)
Affirming convictions of drug possession and trafficking charges and sentencing as a habitual offender, holding that the defendant was not denied the right to testify on his own behalf where the record was silent as to whether he wanted to testify, that there was no Fourth Amendment search when officers climbed a ladder in a common area with the building owner’s permission to look into the defendant’s ceilingless storage unit, and that resentencing was not necessary because the trial court imposed the mandatory minimum for the aggravated trafficking conviction not on his habitual offender status that was determined without sufficient evidence.
(9-0)
Other Orders
In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (granting Petition of the Mississippi Commission on Continuing Legal Education allowing attorneys to complete their CLE obligations set forth in Rule 3 through online, webinars or live, in-person programs for the 2022-2023 CLE reporting year)
In Re: Rules Governing Admission to the Mississippi Bar, 89-R-99012-SCT (granting Petition to Amend the Rules Governing Admission to the Mississippi Bar filed by the Mississippi Board of Bar Admissions; denying Petition to Amend Rule IV §8 of the Rules Governing Admission to the Mississippi Bar filed by Jefferson Carl Harvey on April 21, 2022 and the Emergency Petition to Amend Rule IV Section 8 of the Rules Governing Admission to the Mississippi Bar filed by Applicant 11596 on June 25, 2021; and dismissing Petition for Ruling Regarding Motion #2022-1321 A/K/A “Petition to Amend the Rules Governing Admission to the Mississippi Bar” filed by Jefferson Carl Harvey on October 31, 2022)
Rules for Court Reporters, 89-R-99021-SCT (amending The Rules and Regulations Governing Certified Court Reporters)
Beale v. State, 2020-CT-00614-SCT (granting cert)
Devine v. Cardinal Health 101, LLC, 2020-CT-01101-SCT (granting joint motion to suspend cert proceedings and dismiss cert petition as moot)
Adams v. State, 2020-CT-01383-SCT (denying cert)
Adams v. State, 2020-CT-01383-SCT (denying pro se cert petition)
Watts v. State, 2021-KA-00873-SCT (denying rehearing)
Mississippi Supreme Court Decisions of November 10, 2022
The Mississippi Supreme Court handed down two interesting opinions today. One dealt the final blow in a lawsuit a former judge of the Mississippi Court of Appeals filed against a sitting US Congressman. The other is a case of first impression dealing with the federal Anticybersquatting Consumer Protection Act.
James v. Thompson, 2021-CA-00458-SCT (Civil – Other)
Affirming dismissal of a lawsuit against a U.S. Congressman, holding Mississippi law does not provide relief for the plaintiff’s claims of tortious interference with the election and her job as a judge on the Mississippi Court of Appeals.
(4-0: Justice Kitchens, Justice King, Justice Coleman, and Justice Griffis did not participate)
NOTE – The plaintiff’s claim stemmed from a “sample ballot” distributed by Congressman Thompson:
Carr v. Mississippi Lottery Corporation, 2021-CA-01304-SCT (Civil – Other)
Affirming the trial court’s decisions in a case of first impression interpreting and applying the federal Anticybersquatting Consumer Protection Act, holding that the plaintiff failed to prove that he lawfully registered and used five domain names that infringed on the Mississippi Lottery mark under the ACPA and that the trial court did not err in consolidating the hearing for preliminary injunction with a trial on the merits, by denying the plaintiff’s motion for leave to file an amended complaint, or by denying the plaintiff’s motion to dissolve or modify the permanent injunction.
(9-0)
Other Orders
In Re: Advisory Committee on Rules, 89-R-99016-SCT (authorizing and directing the disbursement of $20,000.00 from the Court’s Judicial System Operation Fund to the Mississippi Supreme Court Advisory Committee on Rules for its necessary work through September 30, 2023)
Manning v. State, 2020-CA-01096-SCT (denying rehearing)
Wall v. Wall, 2020-CT-01096-SCT (denying cert)
McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CT-01277-SCT (denying cert)
Wofford v. State, 2020-CT-01341-SCT (denying cert)
James v. Thompson, 2021-CA-00458-SCT (denying motion for sanctions for frivolous appeal)
Unifund CCR Partners v. Estate of Jordan, 2021-CT-00761-SCT (denying cert)
Harris v. State, 2022-M-00417 (vacating sentence to serve a term of life without parole and remanding to the trial court for resentencing)
Mississippi Supreme Court Decisions of November 3, 2022
The Mississippi Supreme Court handed down no opinions today. The hand-down list had three orders, one was an interesting cert grant in a criminal case.
Powers v. State, 2017-DR-00696-SCT (denying the State’s Motion to Dismiss Petitioner’s Motion to Rehear the Court’s June 21, 2022 Order Denying Petitioner’s Motion to Hold PCR Proceedings in Abeyance)
Manuel v. State, 2020-CT-00711-SCT (granting cert)
Here is the COA opinion in Manuel v. State. The dissent's contention was limited to the sentencing as a habitual offender. Specifically, the dissent concluded that the habitual-offender portions of the sentence were not supported by sufficient evidence and should be reversed under plain error review. Manuel v. State, 2020-KA-00711-COA (Criminal – Felony/Excited Utterance) Affirming convictions and sentences for second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by (1) admitting testimony under the excited-utterance hearsay exception, (2) excusing a juror mid-trial for failure to disclose information during voir dire, (3) collecting the parties’ jury panel information sheets following jury selection and placing them under seal, or (4) sentencing the defendant as a habitual offender. (Judge Westbrooks concurred in part and dissented in part, joined by Judge McDonald and Judge McCarty; Judge McDonald and Judge McCarty concurred in part and dissented in part without separate written opinion; and Judge Emfinger concurred in part and in the result without separate written opinion) The cert petition led with the sentencing issue, but also raised issues related to the trial court's finding that certain defense witnesses' testimony was hearsay and not excited utterances and the trial court's admission of State witness testimony under that hearsay exception.
Edwards v. State, 2021-CT-00259-SCT (denying cert)
Mississippi Supreme Court Decisions of October 6, 2022 (Rewind)
I did not post summaries from the first week of October because I was out of town with my family doing something much more fun that summarizing opinions. This is a catch-up post. There was not a whole lot from the Mississippi Supreme Court that week, unless you are a digital photographer in which case it appears to have been a good week for you.
Mississippi Department of Revenue v. EKB, Inc., 2021-SA-00441-SCT (Civil – State Boards and Agencies)
Affirming the chancery court’s order vacating the Mississippi Department of Revenue’s sales tax assessment against a wedding photography business, holding that photography is not a taxable business activity (unlike film development and photo finishing) and that still digital images are not taxable digital products.
(8-0: Justice Coleman did not participate.)
NOTE – I am neither a tax lawyer nor a photographer, but this seems like quite a win for digital photographers. Here are some particulars about the photography business at issue that gives context for the decision.
Other Orders
Johnson v. State, 2015-CT-01064-SCT (dismissing cert petition)
Wayne County Sch. Dist. v. Quitman Sch. Dist., 2020-CA-00499-SCT (denying rehearing)
Butler v. State, 2020-CT-00806-SCT (granting cert)
Haynes v. State, 2020-CT-01397-SCT (denying cert)
Fluker v. State, 2021-CT-00162-SCT (dismissing cert petition)
In Re: Hon. James McClure, III and Hon. Gerald W. Chatham, Sr.; 2022-IA-00319-SCT (denying petition for writ of prohibition)
Mississippi Supreme Court Decisions of October 27, 2022
Today was a lean day from the Mississippi Supreme Court. No opinions were handed down, but four orders were listed on the hand-down page. I have reposted the summary of one decision from last week about pleading affirmative defenses because I do not think the importance of heeding that decision can be overstated.
Other Orders
Booker v. State, 2018-CT-00664-SCT (denying cert in PCR case)
Porras v. State, 2021-CT-00052-SCT (dismissing cert petition in PCR case as untimely filed)
Carter v. Total Foot Care, 2021-CT-00610-SCT (denying cert where the COA affirmed summary judgment that was based RFAs deemed admitted because the plaintiff failed to respond to them)
In Re: Administrative Orders of the Supreme Court of Mississippi, 2022-AD-00001-SCT (directing the disbursement of $156,119.26 in civil legal assistance funds among the MS Volunteer Lawyers Project, North MS Rural Legal Services, and MS Center for Legal Services)
Reposting from last week to save a life:
Pruitt v. Sargent, 2021-CA-00511-SCT (Civil – Personal injury)
Reversing the circuit court’s decision granting the defendant’s motion to dismiss based on the running of the statute of limitations, holding that the defendants waived the statute of limitations defense by failing to adequately plead it in their answer.
(6-2-0: Justice Coleman concurred in part and in the result, joined by Justice Griffis; Justice Beam concurred in the result only without separate written opinion)
PRACTICE POINT – The Supreme Court laid down some black-letter law today on pleading the statute of limitations as an affirmative defense and its reasoning probably applies to other affirmative defenses. The Court took a look at the defenses that were pleaded and found they fell short of the standard:
Then, the Court said flatly that et seq. didn’t cut it:
In case the message has not been received, consider:
Be careful out there.
Mississippi Supreme Court Decisions of October 20, 2022
[For reasons unknown, when I tried to publish this post earlier WordPress would only show the title with none of the content in the body. It seems to be working now. My apologies to those who have gotten multiple emails with no content.]
The Mississippi Supreme Court handed down four cases today, all civil. Two in particular are of general interest to civil practitioners. One deals with whether an et seq. or “catchall” defense was sufficient to preserve the statute of limitations as an affirmative defense and the other reviews a discovery order from the trial court. Then there are two jurisdiction cases: one deciding whether the circuit court (as opposed to the oil and gas board) has jurisdiction to hear claims against an oil company and the other whether the circuit court has jurisdiction to hear imperfect but timely notices of appeal from local government decisions.
Tiger Production Company, LLC v. Pace, 2021-IA-00315-SCT (Civil – Property Damage)
Affirming the circuit court’s denial of the defendant’s motion to dismiss on interlocutory appeal, holding that the plaintiff’s claims for compensatory and punitive damages based on allegations that an oil company put a saltwater disposal line across the plaintiff’s property without permission were purely common law claims and could not be remedied by the MS Oil and Gas Board.
(8-0: Justice Beam did not participate)
Lawson v. City of Jackson, 2021-IA-00532-SCT (Civil – Personal Injury)
Affirming in part and reversing/remanding in part a discovery order from the trial court on interlocutory appeal, holding that the trial court did not abuse its discretion in entering a protective order providing that a party did not have to respond to written discovery that would not be due until after the discovery deadline but holding that the trial court abused its discretion in restricting the plaintiff’s access to public records and in preventing the plaintiff from introducing any such public records at trial.
(9-0)
Pruitt v. Sargent, 2021-CA-00511-SCT (Civil – Personal injury)
Reversing the circuit court’s decision granting the defendant’s motion to dismiss based on the running of the statute of limitations, holding that the defendants waived the statute of limitations defense by failing to adequately plead it in their answer.
(6-2-0: Justice Coleman concurred in part and in the result, joined by Justice Griffis; Justice Beam concurred in the result only without separate written opinion)
PRACTICE POINT – The Supreme Court laid down some black-letter law today on pleading the statute of limitations as an affirmative defense and its reasoning probably applies to other affirmative defenses. The Court took a look at the defenses that were pleaded and found they fell short of the standard:
Then, the Court said flatly that et seq. didn’t cut it:
Longo v. City of Waveland, 2021-CA-00735-SCT (Civil – State Boards and Agencies)
Reversing the circuit court’s dismissal in two consolidated cases where the circuit court dismissed appeals from local governments for lack of jurisdiction, holding that a notice of appeal that is timely filed but that erroneously omits a petitioner’s name has a procedural defect that does not defeat jurisdiction and can be corrected.
(5-4: Justice Chamberlin dissented, joined by Justice Coleman, Justice Maxwell, and Justice Beam.)
Other Orders
Bridges v. State, 2020-CT-00816-SCT (denying cert)
SRHS Ambulatory Services, Inc. v. Pinehaven Group, LLC, 2020-CA-01355-SCT (denying rehearing)
Mississippi Appeals Blog 