Category: Supreme Court

Mississippi Supreme Court Decisions of October 5, 2023

The Mississippi Supreme Court handed down two opinions today, but do not be deceived by that stat. One of the opinions is a 100+ page decision in a death-penalty PCR case. The other is an appeal of denial a motion to compel arbitration. There is also a linked attorney-discipline case.

Galloway v. State, 2013-DR-01796-SCT (Criminal – Death Penalty – Post Conviction)
Denying motion for leave to proceed in the trial court with PCR petition, holding that (1) the petitioner failed to overcome the presumption that what trial counsel did and did not present as mitigating evidence such as the petitioner’s “true-life story” and mental health issues during the penalty phase might be considered sound trial strategy instead of ineffective assistance; (2) there was no merit to the petitioner’s claim of ineffective assistance during jury selection where counsel used no Batson challenges and an all-white jury was seated or that counsel was otherwise ineffective in voir dire; (3) there was no merit to the petitioner’s claim of ineffective assistance during guilt-innocence phase for not investigating or challenging lack of investigating/challenging the medical examiner’s testimony, in limiting the review of Defense expert’s forensic expert or failing to consult with/prepare him, in failing to assert a Miss. R. Evid. 702 pretrial challenge to the medical examiner’s testimony, or failing to object to the medical examiner’s testimony as outside the scope of the disclosed testimony; (4) there was no merit to the claim that the State corrupted the truth-seeking function of the trial by suppressing material impeachment evidence or presenting false and misleading evidence; (5) the death verdict was not unconstitutionally coerced from a holdout juror; (6) a juror’s exposure to medical coverage showing the victim violated constitutional rights; (7) a juror’s false statement during voir dire that he had not previously served on a criminal jury did not give rise to an inference of prejudice; (8) the petitioner did not show that he was prejudiced when he was placed the defendant in an electronic restraint; (9) death by lethal injection would not violate the petitioner’s rights under the Eighth Amendment or Fourteenth Amendment; and (10) there was no aggregation of errors mandating a reversal.
(9-0)

PriorityOne Bank v. Folkes, 2022-CA-00429-SCT (Civil – Contract)
Affirming denial of motion to compel arbitration, holding that the bank waived the right to arbitration by substantially participating in the litigation and did not file a motion to compel arbitration until after an amended complaint was filed.
(7-2: Griffis dissented, joined by Beam)

PRACTICE POINT – The Supreme Court’s decision appears to hinge on the fact that the amended complained did not add a new cause of action (which was in dispute). This was enough to affirm the denial of the motion to compel arbitration, but the Supreme Court made it clear the plaintiff was bound by her representation that no new claim was asserted:

Other Orders

Jarvis v. State, 2021-M-01196 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings could result in sanctions)

The Mississippi Bar v. Hessler, 2023-BD-00057-SCT (suspending an attorney from the practice of law for one year and one day, with the suspension deferred retroactively to June 22, 2022)

Wakefield v. State, 2021-CT-00187-SCT (denying cert)

Buchanan v. Hope Federal Credit Union, 2021-CT-00218-SCT (denying cert)

In Re: Resignation of Emily Bonds Davey f/k/a Emily Sides Bonds From The Practice of Law in Mississippi, 2023-BD-00963 (granting leave under Rule 11(b) of the Rules of Discipline for the Mississippi State Bar to resign in good standing from the practice of law in Mississippi)

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Mississippi Supreme Court Decisions of September 21, 2023

The Mississippi Supreme Court handed down four opinions today. There is an estates case, a domestic relations case, and a direct criminal appeal. However, the main stage act is a decision on the constitutionality of HB 1020 (and part of that decision was unanimous).

In Re The Estate of Herbert Bernard Ivison, Jr.: Malouf & Malouf, PLLC v. The Estate of Herbert Bernard Ivison, Jr., 2022-CA-00837-SCT (Civil – Wills, Trusts & Estates)
Reversing the chancellor’s ruling that a law firm’s probated claim against a state was barred by statute, holding that the law firm had no reason to pursue further additional legal actions to secure payment of its claim after timely probating the claim.
(8-0: Griffis did not participate.)

West v. West, 2020-CA-01206-SCT consolidated with 2022-CA-00147, 2002-IA-01158, 2008-CA-01700, 2009-CA-01877, 2010-CA-00316 (Civil – Domestic Relations)
Reversed on direct appeal and cross appeal, holding that the chancellor erred in his priority-of-liens analysis and remanding for a determination of whether capital stock certificates conspicuously noted bylaws restrictions, holding that the chancellor erred in failing to address a retroactive child support claim, and holding that because one party engaged in claim-splitting the chancellor’s decision in the consolidated case was reversed with orders to dismiss the case and reinstate a 2008 judgment, writs of garnishment, and writs of execution.
(8-0: Beam did not participate.)

NOTE – This is a 44-page opinion with a lot going on. Be advised that my summary is even broader than usual.

Jenkins v. State, 2022-KA-00754-SCT (Criminal – Felony)
Affirming conviction of DUI (third offense), holding that the trial court did not err in granting a jury instruction that the State was not required to prove that alcohol impaired the defendant’s ability to drive or level of impairment and did not err in refusing the defendant’s instruction on the defendant’s theory of the case where most of the language of that instruction was incorporated into another instruction.
(5-1*-3: Maxwell specially concurred, joined by four justices from the majority: Coleman, Beam, Chamberlin, and Griffis; Kitchens dissented, joined by King.)

NOTE – Justice Maxwell’s concurrence garnered four other votes giving it precedential effect. That special concurrence held that “an instruction like S-8’s potential to confuse weight heavily against giving it in Section (1)(a) common law DUI cases.” The concurrence also noted that even if this instruction was given in error, it would have been harmless due to the overwhelming evidence of guilt.

Here is the text of the instruction at issue:

Saunders v. State, 2023-CA-00584-SCT (Civil – Unconstitutional Statute)
Affirming in part and reversing in part in the HB 1020 case, holding (1) the creation of the CCID inferior court is Section 4 of HB 1020 is constitutional but (2) Section 1’s creation of four “temporary special circuit judges” to be appointed by the Chief Justice to “almost-four-year-terms” violates the Mississippi Constitution’s requirement that circuit judges be elected.
(6-2: Kitchens dissented as to the constitutionality of CCID inferior court, joined by King; Kitchens and King concurred as to the unconstitutionality of appointing the temporary judges; Randolph did not participate)

NOTE – Here is the crux of the reasoning behind the unanimous holding that the appointment process in HB 1020 is unconstitutional:

Other Orders

Moore v. State, 2021-M-00111 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings may result in sanctions)

Hull v. State, 2022-CT-00088-SCT (denying cert)

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Mississippi Supreme Court Decisions of September 14, 2023

The Mississippi Supreme Court handed down one opinion today. The issue is a battle between COVID and the rules of appellate procedure. Read on to see who won…

Gilmer v. Biegel, 2022-CP-00528-SCT (Civil – Other)
Affirming order denying appellant’s motion for extension under Rule 4(g) of the Mississippi Rules of Appellate Procedure, holding the 30-day window for a motion under Rule 4(g) is “hard edged” so the trial court properly denied the motion for extension filed 50 days after the initial appeal deadline passed, and the court was without jurisdiction to suspend the rules and allow the appeal to proceed as if timely filed.
(9-0)

NOTE – The appellant argued that a severe bout of COVID and resulting “brain fog” was to blame. He argued that the notice of appeal should be accepted as timely filed, “especially in light of this Court’s COVID-19 emergency orders authorizing trial courts to exercise sound discretion in extending deadline.” But the court was not persuaded:

Other Orders

Fair v. State,  2023-M-00783 (denying application for leave to proceed in the trial court, finding it frivolous, and warning that future frivolous filings could result in sanctions)

West Jasper Consolidated School District v. Rogers, 2021-CT-00171-SCT (denying cert)

In the Matter of the Estate of Biddle, 2021-CP-00513-SCT (denying rehearing)

Maxwell v. Panola County, 2021-CT-01001-SCT (denying cert)

Barber v. State, 2022-KA-00291-SCT (denying rehearing)

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Mississippi Supreme Court Decisions of September 7, 2023

The Mississippi Supreme Court handed down two opinions today. One is a panic-inducing civil procedure case and the other is a direct criminal appeal.

Thomas v. Bolivar County, Mississippi, 2022-CA-00445-SCT (Civil – Other)
Reversing the trial court’s grant of judgment on the pleadings in an MTCA case where the complaint was delivered to the circuit clerk on the last day of the limitations period but it was not entered into MEC until the following day (after the deadline), holding (1) when the MTCA statute of limitations falls on a Sunday, Miss. Code Ann. § 1-3-67 authorizes an extension to the following Monday; (2) delivery of the complaint, civil cover sheet, and filing fee constituted “filing” the complaint; and (3) the delay in having a summons issued did not delay the commencement date of the action.
(9-0)

PRACTICE POINT – The underlying facts of this case are nightmare fuel for civil litigators. As if the background facts weren’t enough, this part the opinion also caught my attention:

McCollum v. State, 2021-KA-01276-SCT (Criminal – Felony)
Affirming conviction of grand larceny, holding that the investigator had presented sufficient probable cause to the magistrate to justify a search warrant, that there was no hearsay admitted that would warrant reversal, and there was no error in denying a mistrial based on the presence of witness during the testimony of a State’s witness because the trial court excused the witness who violated the sequestration rule.
(7-2: King dissented, joined by Kitchens)

Other Orders

Crump v. State, 2018-M-00410 (denying application to proceed in the trial court and restricting the petitioner from filing further applications for PCR in forma pauperis)

Garcia v. State, 2021-CA-01214-SCT (denying rehearing)

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Mississippi Supreme Court Decisions of August 31, 2023.

The Mississippi Supreme Court handed down two opinions today: one civil and one direct criminal appeal. The civil case addressed whether summary judgment based on 30(b)(6) testimony in a negligence case was proper. The direct criminal appeal challenged a capital murder conviction on several grounds.

Mississippi State Agencies Self-Insured Workers’ Compensation Trust v. Herrgott, 2021-SA-01280-SCT (Civil – Real Property)
Reversing summary judgment in a subrogation action filed by a workers’ compensation trust against an alleged tortfeasor stemming from an ATV accident in which a state employee sustained an injury that compensable under the MWCA, holding that the trust was not bound by the failure of its 30(b)(6) representative to articulate a legal theory at his deposition.
(9-0)

PRACTICE POINT – The Supreme Court favorably quoted a prior MS Court of Appeals decision and two decisions from federal district courts in its reasoning. The quoted language could benefit both sides of the civil bar in a few different contexts that come immediately to mind:

Dukes v. State, 2022-KA-00670-SCT (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err by allowing testimony of a rebuttal witness that had not bee disclosed, or in denying a motion for mistrial based on argument that the State violated a motion in limine precluding testimony related to severed counts in the indictment, and the that trial was not rendered unfair by hearsay testimony.
(9-0)

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing/reappointing the following six persons to three-year terms as members of the complaint tribunals effective September 1, 2023: George Philip Schrader IV, Hon. Carol White-Richard, Hon. Jennifer F. Nicaud, Hon. Claiborne (Buddy) McDonald IV, J. Rhea Tannehill, Jr., and Leo J. Carmody)

Neal v. State, 2011-M-00201 (granting letter motion and remanding for resentencing)

Thomas v. State, 2021-CT-00060-SCT (denying cert)

Mitchell v. State, 2021-KA-00589 (denying rehearing)

Lamy v. Lamy, 2021-CT-00770-SCT (granting cert)

Pace v. State, 2022-CT-00046-SCT (denying cert)

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Mississippi Supreme Court Decisions of August 24, 2023

The Mississippi Supreme Court handed down one opinion today in an interesting case addressing the applicability of the ecclesiastical abstention doctrine that yielded a total of four opinions. The Court also granted cert in three significant cases covering three very different areas of law: (1) a direct criminal appeal where the COA affirmed a conviction of sexual battery over a dissent finding a Confrontation Clause violation, (2) a PCR case where the COA held an indictment was defective but the claim was procedurally barred, and (3) a civil case where the COA reversed summary judgment because it said there was a question of fact whether car wreck was the proximate cause of opioid misuse and death.

Beachy v. Mississippi District for Assemblies of God, 2021-CA-01007-SCT (Civil – Contract)
Reversing the chancellor’s ruling in a dec action brought by the District against a particular church and its board of trustees that had sought to disaffiliate with the District and remove a reverter clause in its constitution and bylawys that would have caused the church’s property to revert to the District, holding that issues concerning disaffiliation are church-governing matters and that the ecclesiastical abstention doctrine deprived the chancellor of jurisdiction over but that there was a genuine issue of material fact concerning the issue of property ownership.
(5-2-2: Maxwell specially concurred, joined by Coleman, Beam, and Chamberlin, and joined in part by Ishee; Ishee concurred in part and dissented in part joined in part by Maxwell; Randolph dissented, joined by Griffis)

Other Orders

Hathorne v. State, 2021-CT-00306-SCT (granting cert) (a 2-4-4 COA affirmed denial of motion for PCT, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred)

Barfield v. State, 2021-CT-00660-SCT (denying cert)

Pitts v. State, 2021-CT-00740-SCT (granting cert) (a 6-1-2 COA affirmed conviction of sexual battery after a screen was placed between the child and the defendant; Judge Wilson’s dissent argued that the use of the screen was a violation of the Confrontation Clause)

Clark v. Tippah County Dept. of CPS, 2021-CT-01209-SCT (denying cert)

Smith v. Minier, 2021-CT-01284 (granting cert) (the COA reversed summary judgment dismissing wrongful death claim where decedent died of chronic liver failure five months after a car wreck, holding that there was a fact question as to whether the at-fault driver’s actions were proximate cause of decedent’s use of pain meds, misuse of pain meds, and resulting death)

Penn-Star Ins. Co. v. Thompson, 2022-IA-00106-SCT (denying rehearing)

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Mississippi Supreme Court Decisions of August 17, 2023

The Mississippi Supreme Court handed down four opinions today. One is a direct criminal appeal and one was a real property case addressing the applicability of restrictive covenants after a foreclosure sale. Then there are two decisions on interlocutory appeals of summary judgment denials – a med mal/MTCA pre-suit notice case against a hospital and a construction zone MVA case against the road contractor and MDOT.

Stuart v. State, 2022-KA-00585-SCT (Criminal – Felony)
Affirming conviction of filming a person without her knowledge and with an expectation of privacy, holding that the defendant’s right to counsel was not violated when he had been through three public defenders and his request that a fourth lawyer be appointed his counsel days before trial and for continuance was denied where the fourth lawyer was appointed to serve as advisory counsel, and that the trial court did not err in denying the defendant’s accident instruction.
(9-0)

UMMC v. Aycock, 2022-IA-00030-SCT (Civil – Med Mal)
Affirming on interlocutory appeal the denial of the hospital’s motion for summary judgment arguing that the plaintiff did not serve proper pre-suit notice on the CEO, holding that the notice requirements are mandatory–but not jurisdictional–but that there was an issue of material fact as to whether the hospital waived, or is equitably estopped from asserting, lack of compliance based on its conduct after actually receiving notice though not through its CEO.
(8-1: Griffis concurred in part and dissented in part)

NOTE – Here is the Court’s summary of some of the facts relevant to waiver and equitable estoppel:

Loblolly Properties LLC v. Le Papillion Homeowner’s Ass’n, Inc., 2021-CT-00767-SCT (Civil – Real Property)
Affirming the chancery court and court of appeals in an action to collect HOA fees, holding that the developer who purchased properties through a nonjudicial foreclosure sale owed HOA fees where it purchased the properties with notice of the restrictive covenants and holding, specifically, that the foreclosure sale did not extinguish the HOA covenants.
(7-2: Coleman dissented, joined by Griffis)

Joe McGee Construction Company, Inc. v. Brown-Bowens, 2021-IA-01405-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of summary judgment to a road construction contractor and to MDOT, holding that there was no competent summary judgment evidence to support that any breach of duty by the contractor or by MDOT proximately caused the crash where the contractor had installed all warning signs required by MDOT and where the decedent passed multiple signs warning of a road closure and crashed into a crane on a closed portion of the highway.
(7-2: Kitchens dissented, joined by King)

DISCLOSURE – I represented the road contractor appellant in this case.

PRACTICE POINT – I think this is a useful, pithy statement to support motions for summary judgment when the arguments on causation are speculative:

Other Orders

In Re: Local Rules, 89-R-99015-SCT (approving amendment to local rule filed by Judge Irving in the 22nd Circuit Court District)

Rhea v. Career General Agency, Inc., 2021-CT-00580-SCT (granting cert)

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CT-00605-SCT (denying cert)

The Board of Supervisors for Lowndes County, Mississippi v. Lowndes County School Dist., 2021-CA-00999-SCT (denying rehearing)

Wagner v. Andreacchio, 2021-IA-01199-SCT (denying rehearing)

Bradley v. State, 2022-CT-00173-SCT (denying cert)

MS Concrete v. Harris, 2022-CT-01095-SCT (denying cert)

Howell v. State, 2023-DR-00455-SCT (remanding motion for appointment of counsel for representation of indigent capital petitioner)

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Mississippi Court of Appeals Decisions of August 15, 2023

The Mississippi Court of Appeals six opinions today. The court served up two direct criminal appeals, an easement by necessity case, a workers’ comp jurisdiction case, a MDES case, and a PCR case.

Ramsey v. State, 2022-CP-00103-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in dismissing it as successive.
(9-0: Smith did not participate)

Hobby v. Ott, 2021-CA-01305-COA (Civil – Real Property)
Reversing the chancellor’s order granting an easement by necessity, holding that the chancellor court erred in making this ruling without any supporting proof in the record regarding the costs of alternative routes of access, and rendering judgment denying the request.
(10-0)

Chatman v. State, 2022-KA-00386-COA (Criminal – Felony)
Affirming conviction of sexual battery of a minor, holding that there was sufficient evidence to support the conviction.
(10-0)

Pritchett v. MDES, 2022-CC-00808-COA (Civil – State Boards & Agencies)
Affirming a finding that an employee was not entitled to benefits, holding that there was substantial evidence to support the determination by MDES that the employee had voluntarily abandoned her job without finishing her assigned duties.
(6-4-0: No separate opinions – Wilson and Emfinger concurred in part and in the result; Westbrooks and McDonald concurred in result only)

Boyington v. State, 2022-KA-00601-COA (Criminal – Felony)
Affirming convictions of fleeing law enforcement and being a felon in possession of a firearm, holding that the trial court committed error in admitting a photograph of a swastika tattoo on the defendant’s body but that it was harmless error.
(7-3-0: No separate opinions – Wilson, Greenlee, and Smith concurred in part and in the result)

NOTE – Here is the Court’s summary of its analysis:

Wheeler v. Mississippi Limestone Corp., 2022-WC-00534-COA (Civil – Workers’ Comp)
Affirming the dismissal of a workers’ comp claim, holding that there was substantial evidence to support the Commission’s finding that it lacked subject matter jurisdiction because the claimant was neither hired nor regularly employed in Mississippi and that the employer did not assume liability for the injury by maintaining insurance under the MWCA.
(9-1-0: No separate opinions – McDonald concurred in the result only)

Other Orders

Clayton v. State, 2021-KA-00505-COA (denying rehearing)

Kirk v. Newton, 2021-CA-00684-COA (denying rehearing)

Smith v. State, 2021-KA-01003-COA (denying rehearing)

Dawson v. Burgs, 2021-CA-01038-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 10, 2023

The Mississippi Supreme Court handed down two decisions today. Both are domestic relations cases involving with children (custody and visitation). Both are reversals (one reversed the Court of Appeals and affirmed the chancellor while the other reversed the chancellor). Both are authored by Justice Beam.

Blagodirova v. Schrock, 2020-CT-01162-SCT (Civil – Custody)
Reversing a 4-2-4 Court of Appeals decision and reinstating and affirming the chancellor’s ruling in a custody matter, holding that there was substantial evidence in the record to support the chancellor’s finding of a material, substantial, and adverse change in circumstances that warranted custody modification.
(9-0)

NOTE – Here is the Court’s recap of the circumstances at issue:

Brownlee v. Powell, 2022-CA-00196-SCT (Civil – Domestic Relations)
Reversing the chancellor’s decision on an unmarried, non-parent, former live-in partner’s petition for in loco parentis visitation rights, holding that the chancellor erred in finding that the petitioner lacked standing without citing Mississippi law and in disposing of the case under 12(b)(6); that there was no plain error in the chancellor considering text messages without allowing other evidence; and that the chancellor erred in finding the petition frivolous and awarding attorney’s fees.
(6-3-0: Kitchens concurred in result only, joined by King and Griffis, and joined in part by Ishee.)

NOTE – The person seeking visitation won a trip back to the trial court, but I don’t read this opinion as blazing path to victory on the merits. Here are a few excerpts

and…

and…

and…

Other Orders

McPhail v. McPhail, 2020-CA-00739-SCT (denying petition construed by the Court as one for rehearing as untimely)

Moreland v. Spears, 2021-CT-00714-SCT (denying cert)

Norwood v. State, 2021-KA-00903-SCT (denying rehearing)

Brooks v. Jeffreys, 2021-CT-01113-SCT (denying cert)

Simoneaux v. State, 2022-CT-00532-SCT (dismissing cert petition)

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Mississippi Supreme Court Decisions of August 3, 2023

The Mississippi Supreme Court handed down one opinion today but it is not an insignificant day. The opinion is in an MTCA reckless disregard case stemming from a police officer who crashed into a bystander vehicle while crossing an intersection en route to another accident scene. The trial court found for the City after a bench trial, the Court of Appeals reversed, and the Supreme Court granted cert.

Phillips v. City of Oxford, 2021-CT-00639-SCT (Civil – Personal Injury/MTCA)
Reversing the COA and reinstating/affirming the circuit court’s judgment for the City, holding that the record contained sufficient evidence to support the trial court’s decision that the officer did not act in reckless disregard while responding to a rollover wreck when he struck a bystander vehicle while crossing an intersection and exceeding the speed limit but also where he had his lights and sirens on and, when approaching intersections, he slowed his speed and used his horn as an additional warning.
(6-2: Kitchens dissented, joined by King. Maxwell did not participate.)

NOTE – This opinion emphasized the “deferential standard of review” for a bench trial under the MTCA and the fact that “reckless disregard” is an “extremely high bar” that is a higher standard than gross negligence.

Other Orders

In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (Reappointing George Scott Luter, Richard W. Sliman, and John Dickson Mayo to three-year terms (Aug. 1, 2023, through July 31, 2026) as members of the Commission on Mandatory Continuing Legal Education)

Colburn v. State, 2021-CT-00865 (denying cert)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-000001-SCT (Directing the disbursement of $179,389.36 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

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