Tag: alimony

Mississippi Court of Appeals Decisions of December 16, 2025

As the year draws the a close, the Mississippi Court of Appeals is finishing strong with seven opinions handed down today. There were three domestic relations cases, two felony appeals, one misdemeanor appeal, and an undue influence case.

Rasbeery v. State, 2024-KA-01005-COA (Criminal – Felony)
Affirming conviction of possession of meth with a firearm enhancement, holding that the conviction of constructive possession was supported by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, and that the trial court did not err in denying a motion suppress the defendant’s roadside statements.
(10-0: McCarty for the Court)

Lucas v. Estate of Lucas, 2024-CA-01259-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision invalidating a gift and setting aside a deed, holding that the grantee did not provide sufficient evidence overcome the presumption of undue influence.
(10-0: McCarty for the Court)

J.T.S. v. M.L.S., 2024-CA-00023-COA (Civil – Domestic Relations)
Affirming in part and reversing in part a chancellor’s decision in a divorce case, holding that the Court had appellate jurisdiction, that the chancery court did not in dismissing several counts of the amended complaint, that the chancellor did err in modifying the life insurance provision of the divorce agreement, that the chancellor did not err in enforcing a provision limiting reimbursement of medical expenses, that the chancellor did not err in assessing post-judgment interest, that the chancellor did not err in finding that one party had no obligation to contribute to condo or allowance expenses, that the chancery court did not abuse its discretion in crediting payments as child support, that the chancellor did err in awarding attorney’s fees without specific findings, and that there was no merit to the claim that the chancellor was impartial.
(7-1-0: McDonald for the Court; Wilson concurred in part and in the result without writing; Lawrence and St. Pe’ did not participate)

Turner v. State, 2024-KM-01020-COA, consolidated with 2024-KM-01028-COA (Criminal – Misdemeanor)
Affirming convictions of speeding and careless driving on appeal from justice court, holding that the evidence was sufficient to support the conviction which was not against the overwhelming weight of the evidence and that the trial court did not impermissibly place the burden of proof on the defendant.
(10-0: McDonald for the Court)

Odom v. State, 2023-KA-01165-COA (Criminal – Felony)
Affirming conviction of first-degree murder and armed robbery, holding that the jury was not so improperly instructed on self-defense as to warrant reversal and that the evidence was sufficient to support his conviction.
(9-1-0: Wilson for the Court; Barnes concurred in part and in the result without writing)

Bradshaw v. Bradshaw, 2024-CA-00882-COA (Civil – Domestic Relations)
Affirming judgment of contempt, holding that the chancellor did not err in finding the ex-husband in willful contempt for failing to pay court-ordered alimony or in reducing his monthly periodic alimony payment.
(10-0: Barnes for the Court)

Thornton v. Thornton, 2024-CA-00320-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in a divorce case, holding that the chancery court did not abuse its discretion awarding joint legal and physical custody, that the chancellor did not err in distribution of marital property or in personal property.
(7-1-2: Barnes for the Court; Wilson concurred in part and in the result without writing; Carlton concurred in part and dissented in part, joined by McCarty)

Other Orders

  • Parra v. Rapid-American Corporation, 2023-CA-01196-COA (denying rehearing)
  • Buck v. State, 2024-KA-00025-COA (denying rehearing)
  • Tauzin v. Tauzin, 2024-CA-00141-COA (denying rehearing)

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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)

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Mississippi Court of Appeals Decisions of August 27, 2024

The Mississippi Court of Appeals handed down eleven opinions today. The majority are PCR cases, but there are a few direct criminal appeals, a personal injury case, and a divorce case.

Magee v. State, 2023-CP-00008-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err by failing to appoint counsel to represent the petitioner at his evidentiary hearing, finding that the guilty pleas were knowing/intelligent/voluntary, or in denying the claim of ineffective assistance of counsel.
(9-0)

Haley v. State, 2023-CP-00918-COA (Civil – PCR)
Affirming dismissal of second PCR motion, holding that the circuit court did not err in finding that the motion was successive and time-barred.
(9-0)

Stacy v. Stacy, 2023-CA-00219-COA (Civil – Domestic)
Reversing the chancellor’s division of martial property and alimony award, holding that the chancellor erred by failing to address both the Ferguson factors and the Armstrong factors in the decision.
(9-0)

Harris v. State, 2023-KA-00460-COA (Criminal – Felony)
Affirming resentencing for conviction of depraved heart murder, holding that the trial court did not err in sentencing the defendant to life imprisonment and that the defendant had no liberty interest in parole.
(7-1-0: Westbrooks concurred in result only; Emfinger did not participate)

Alexander v. Metropolitan Y.M.C.A., 2022-CP-01092-COA (Civil – Personal Injury)
Affirming the trial court’s grant of summary judgment in a personal injury action arising from a swimming pool accident, holding that the trial court did not err in granting summary judgment where there was no evidence of breach or proximate cause.
(7-0: McDonald and Emfinger did not participate)

Easterling v. State, 2023-KA-00610-COA (Criminal – Felony)
Affirming conviction of possession of a controlled substance as a second or subsequent offender and habitual offender, holding that there were no grounds for reversal after reviewing counsel’s Lindsey brief and the record.
(9-0)

LaFleur v. State, 2022-KA-00500-COA, consolidated with 2022-IA-01244-COA (Criminal – Felony)
Affirming the trial court’s denial of the defendant’s motion to dismiss, holding that the trial court’s ruling granting a new trial on attempted murder did not constitute an acquittal so the Double Jeopardy Clause did not prohibit a second trial, and dismissing direct appeal because the defendant did not challenge his conviction of simple assault.

Pryer v. State, 2023-CP-00568-COA (Civil – PCR)
Reversing the trial court’s denial of a Rule 60(b)(6) motion to reconsider the denial of a PCR motion challenging the revocation of a suspended sentence, holding that it was error to deny the motion reconsider because MDOC’s petition for revocation cited only technical violations.
(9-0)

Hardy v. State, 2023-CP-00970-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the guilty plea was voluntary, that any Fourth Amendment or Sixth Amendment challenges were waived by the guilty plea.
(9-0)

Wallace v. State, 2023-KA-00071-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the trial court did not commit plain error by proceeding with voir dire in the defendant’s absence where the defendant knew about the trial date but had transportation issues, that there was no reversible error related to the prosecutor’s statements during closing, and that the verdict was not against the overwhelming weight of the evidence.
(7-1[0]-1[2]: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part, joined by McDonald.)

Siggers v. State, 2023-CP-00324-COA (Civil – Other)
Affirming the trial court’s summary denial of a pro se “Habeas Corpus” pleading that it treated as a PCR motion, holding that the trial court erred by treating the pleading as a PCR motion but affirming denial of the “Habeas Corpus” because the issue was moot once the final revocation hearing was held, but remanding the matter to consider a subsequent PCR motion.
(6-3: McDonald concurred in part and dissented in part, joined by Barnes and Westbrooks, joined in part by McCarty)

Other Orders

  • None

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Mississippi Court of Appeals Decisions of August 13, 2024

The Mississippi Court of Appeals handed down six opinions today. The court affirmed in two direct criminal appeals but reversed, dismissed, or vacated in each of the remaining cases. Those four consist of a divorce, a real property conveyance, a mechanic lien against real property, and a misdemeanor.

Osing v. Osing, 2022-CA-00755-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s judgment in a divorce proceeding, holding that the chancellor did not err in denying the husband’s motion to withdraw consent to the irreconcilable-differences divorce, but reversing the chancellor’s division of the marital estate for failure to make sufficient factual findings and, as a result, reversed the chancellor’s award of alimony and a minor child’s college and health-insurance coverage pending reconsideration of the division of the marital estate.
(7-1-0: Wilson concurred in part and in the result without separate written opinion; Lawrence did not participate)

Campbell v. State, 2022-KA-01055-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, holding that there was sufficient evidence supporting the verdict and that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err by referencing the grand jury proceedings, that there was no Brady violation regarding lost fingerprints, and that the trial court did not err in overruling a Batson challenge.
(8-0: Smith did not participate)

Alexander v. Espinoza, 2023-CP-01139-COA (Civil – Real Property)
Dismissing the appeal of a chancellor’s order denying declaratory relief, holding that the chancellor’s order was not a final judgment because it did not resolve all claims against all parties, and it did not contain 54(b) certification language.
(9-0)

In the Matter of the Estate of Johnson: Manners v. Estate of Johnson, 2023-CA-00823-COA (Civil – Wills, Trusts, & Estates)
Reversing the chancellor’s decision denying a claim to enforce rights under a document by which a decedent had intended to convey an interest in real property, holding that the document was a valid conveyance of an interest in the property and remanded for necessary parties to be joined and for further proceedings consistent with the opinions.
(9-0)

Carpenter v. State, 2023-KA-00580-COA (Criminal – Felony)
Affirming conviction of two counts of child exploitation, holding that section 97-5-33(8) of Mississippi’s child exploitation statute is not unconstitutional for overbreadth or for supporting entrapment and holding that the verdict was supported by sufficient evidence.
(9-0)

NOTE – Here is the court’s description of section Miss. Code Ann. § 97-5-33(8):

Holt v. State, 2023-KM-00121-COA (Criminal – Misdemeanor)
Vacating and remanding dismissal of an appeal to the circuit court from a conviction of simple domestic assault originating in municipal court, holding that the circuit court erred by dismissing the appeal for failure to file a brief without giving notice of the deficiency and an opportunity to cure and that the record was insufficient to determine whether the circuit court had jurisdiction for want of posting a cost bond.
(7-1-0: Carlton concurred in result only without writing; Smith did not participate)

  • Bradford v. State, 2022-KA-00493-COA (denying rehearing)
  • Hutson v. Hutson, 2022-CT-00569-COA (dismissing motion for appellate attorney’s fees)
  • Taylor v. Johnson, 2022-CA-00734-COA (denying rehearing)
  • Brown v. Black, 2022-CA-00869-COA (denying rehearing)
  • Roley v. Roley, 2022-CP-01104-COA (denying rehearing)
  • Winstead v. State, 2022-KA-01235-COA (denying rehearing)
  • Smith v. State, 2023-KA-00185-COA (denying rehearing)
  • Magyar v. Shiers, 2023-CA-00682-COA (denying motion to dismiss appeal)
  • Brown v. State, 2024-TS-00741-COA (granting motion to proceed out of time)

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Mississippi Supreme Court Decisions of June 20, 2024

The Mississippi Supreme Court handed down three opinions on Thursday. The first is a divorce case that discusses property classification and alimony and partially overrules a prior decision. The second decision is a direct criminal appeal appealing the denial of an indigent defendant’s request for funding for defense experts. The third case involves a motion for protective order that was sought to exempt redacted information from a public records request disclosure.

Cassell v. Cassell, 2023-CA-00213-SCT (Civil – Domestic)

Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in the classification of property or award of alimony, that the burden of proof to rebut the presumption of marital property is preponderance of the evidence, and that the party claiming property excluded from marital property has been commingled and transformed into marital property bears the burden of proof by a preponderance of the evidence, and “overrul[ing] Cheatham insofar as it has any bearing on a chancellor’s decision to award alimony and reaffirm the factors enumerated in Ferguson—awarding alimony during the division of the estate—and Armstrong—awarding alimony subsequent to the division of the estate—as the appropriate factors to be considered.”

(9-0)

Harris v. State, NO. 2023-KA-00038-SCT (Criminal – Felony)

Affirming conviction for aggravated DUI, holding that the trial court did not abuse its discretion denying the indigent defendant’s request for funds to retain experts where the requests were insufficient to show a substantial need for state funding or defense experts.

(9-0)

UnitedHealthcare of Mississippi, Inc. v. Amerigroup Mississippi, Inc., 2022-SA-01216-SCT (Civil – Other)

Affirming the chancellor’s decision denying a motion for protective order that sought to exempt redacted information in a qualification United Healthcare had submitted to the Department of Medicaid from disclosure in response to a public records request, holding that United did not meet its burden of showing that the redacted information was either a trade secret or confidential commercial or financial information, and denying United’s request to supplement the record.

(9-0)

Other Orders

Simmons v. State, 2022-CT-01260-SCT (denying cert)

Brown v. State, 2024-M-00013 (granting application for leave to file a motion for post-conviction DNA testing)

Bonner v. The Mississippi Bar, 2024-BD-00142-SCT (granting leave under Mississippi Rule of Discipline 11(b) to resign in good standing from the practice of law in Mississippi)

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Mississippi Court of Appeals Decisions of May 21, 2024

The Mississippi Court of Appeals handed down a bounty of twelve opinions yesterday. I noticed a stray opinion from Thursday, May 9 so that is also summarized below. With a total of thirteen opinions, there is a lot of ground covered.

Martin v. State, 2023-KA-00044-COA (Criminal – Felony)
Affirming conviction of aggravated assault and armed robbery after a trial in absentia, holding that the verdicts were not against the overwhelming weight of the evidence.
(10-0)

Tilley v. Gibbs, 2022-CA-01150-COA (Civil – Domestic Relations)
Affirming judgment awarding physical custody of a child to the father, holding that the chancellor did not err in his Albright analysis and that substantial, credible evidence supported the custody determination.
(10-0)

Hamer v. State, 023-CP-00701-COA (Civil – PCR)
Affirming denial of relief and dismissal of PCR motion without an evidentiary hearing, holding that the PCR motion lacked sufficient support to warrant a evidentiary hearing.
(8-2-0: Westbrooks and McDonald concurred in result only without writing)

McVay v. State, 2022-KA-00523-COA (Criminal – Felony)
Affirming conviction of four counts of capital murder and one count of possession of a firearm by a felon, holding that the trial court did not commit plain error in admitting evidence of prior bad acts during cross-examination of the defendant and holding that the defendant’s trial counsel was not constitutionally ineffective for failing to object.
(7-2-0: Wilson and Westbrooks concurred in result only without separate written opinion; Carlton did not participate)

Jackson v. State, 2022-KA-01143-COA (Criminal – Felony)
Affirming conviction of first-degree murder and burglary and sentence to life without eligibility for early release, probation, or parole, holding that the indictment was not fatally defective; that there was no plain error in denying a motion to suppress the defendant’s statements to law enforcement where the defendant made a knowing, intelligent, and voluntary waiver of Miranda; that the trial court did not err in refusing the defendant’s proposed insanity defense and imperfect self-defense instructions; and that the verdicts were not against the overwhelming weight of the evidence.
(8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)

Practice Point – This is a handy citation to tuck away for one of those “I know its true by I can’t find a case that says so” situations:

Thompson v. State, 2023-CP-00218-COA (Civil – PCR)
Affirming dismissal of the petitioner’s fourth and fifth PCR motions, holding that the circuit court did not err in finding them time-barred.
(10-0)

Smith v. West, 2023-CA-00297-COA (Civil – Personal Injury)
Affirming dismissal for failure to prosecute a personal injury case, holding that the trial court did not abuse its discretion after granting several continuances over nearly ten years since the action was commenced.
(10-0)

Signaigo v. Grinstead, 2022-CA-01212-COA (Civil – Real Property)
Affirming in part and reversing in part the chancellor’s rulings in an adverse possession action, affirming the finding that the plaintiff could not prove the ownership element but reversing the finding that title was vested in the defendant as a matter of law because that issue was beyond the scope of the motion for summary judgment.
(8-2-0: Wilson and Westbrooks concurred in result only without writing)

McKenzie v. McKenzie, 2022-CA-01175-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings in a divorce proceeding, holding that the chancellor did not err in the equitable division of marital property, in determining the amount of child support, in determining the amount of alimony, or in denying the mother’s request for attorney’s fees.
(9-0: Smith did not participate)

Carr v. State, 2022-KA-00491-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the State did not commit prosecutorial misconduct during closing arguments such that the court was required to intervene on its own initiative.
(10-0)

Pickens v. State, 2022-KA-00822-COA (Criminal – Felony)
Affirming conviction of meth while in possession of a firearm, holding that after reviewing counsel’s Lindsey brief and independently reviewing the record that there were no errors warranting reversal.
(10-0)

Hearn v. State, 2023-CP-00275-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in finding the motion time-barred and that no statutory exceptions applied.
(9-0: Smith did not participate)

From May 9, 2024

Daniels v. State, 2022-KA-00705-COA (Criminal – Felony)
Affirming in part and reversing in part after the the defendant was convicted of one count of manslaughter as a lesser-included offense of murder, three counts of aggravated assault, and one count of shooting into an occupied dwelling, holding that indictment’s error as to the count for murder was harmless so the conviction of the lesser-included offense of manslaughter was affirmed but holding that the indictment was legally insufficient as to aggravated assault counts and that the error was compounded by repetition in jury instructions and the State’s closing arguments.
4-1*-5: Westbrooks specially concurred, joined by McDonald, Lawrence and Smith (each of whom also joined the lead opinion); Emfinger concurred in part and dissented in part, joined by Barnes, Carlton, Wilson, and McCarty.)

Other Orders

  • Arnold v. State, 2021-KA-01426-COA (denying rehearing)
  • Rutland v. Regions Bank, 2022-CA-00720-COA (denying rehearing)
  • Malone v. State, 2022-CP-00958-COA (denying rehearing)
  • Boyett v. Cain, 2022-CP-00978-COA (denying rehearing)
  • EEECHO Inc. v. Mississippi Environmental Quality Permit Board, 2022-SA-01068-COA (denying rehearing)
  • Boyette v. State, 2022-CP-01239-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of November 21, 2023

The Mississippi Court of Appeals handed down eight opinions on Tuesday. There are some interesting opinions in there including three opinions with civil procedure issues that civil litigators should take a look at. One deals with the discovery rule and the savings statute after a voluntary dismissal, another deals with a Rule 41 dismissal for want of prosecution, and the other deals with a Rule 56(f) motion in a med mal case.

The Supreme Court will not hand down decisions this week due to the Thanksgiving holiday. Have a Happy Thanksgiving!

Burns v. BancorpSouth Bank, 2022-CA-00404-COA (Civil – Contract)
Affirming dismissal of breach of contract and negligence claims that two banks were liable for not preventing an elderly lady’s caregiver from stealing money from bank accounts, holding that the claims against the banks were barred by the three-year statute of limitations.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Greenlee did not participate)

Harper v. State, 2022-KA-00659-COA (Criminal – Felony)
Affirming conviction of attempted statutory rape and fondling, holding that the trial court did not err by admitting the victim’s out-of-court statements without determining whether the tender-years exception applied because the victim’s teacher’s testimony about what the victim said was not offered to prove the truth of the matter asserted and that the forensic interviewing expert’s testimony did not constitute hearsay, and dismissing the ineffective assistance of counsel claims without prejudice.
(8-2-0: Enfinger concurred in part and in the result without writing and McDonald concurred in the result only without writing)

Agee v. State, 2022-KA-00994-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the Court did not err by imposing restitution and that the defendant waived that issue by not objecting during sentencing.
(9-1-0: Westbrooks concurred in the result only without writing)

Clearman v. Pipestone Property Services, LLC, 2022-CA-00651-COA (Civil – Personal injury)
Affirming the circuit court’s dismissal of slip-and-fall claims against a contractor and subcontractor who provided snow and ice removal services for a grocery store on statute of limitations grounds, holding that the “discovery rule” did not apply, the voluntary dismissal of a timely federal court lawsuit against the grocery store did not bring the claims against the contractor and subcontractor within the ambit of the “savings statute,” and the doctrine of equitable tolling did not apply.
(10-0)

Galvan v. State, 2022-KA-00655-COA (Criminal – Felony)
Affirming conviction of statutory rape, sexual battery, gratification of lust, and incest, holding that the trial court did not err by not appointing an interpreter or by admitting the defendant’s statements to law enforcement, that the defendant waived objections based on the Confrontation Clause, that there was sufficient evidence to support the incest conviction, and that the defendant failed to prove ineffective assistance of counsel.
(9-1-0: Carlton concurred in result only without writing)

Rawlings v. Rawlings, 2022-CA-00919-COA (Civil – Domestic Relations)
Affirming the chancellor’s denial of the ex-wife’s request for attorney’s fees after denying the ex-husband’s request for alimony modification, holding that she was not entitled to attorney’s fees under the marital dissolution agreement providing that the prevailing party in an enforcement action was entitled to attorney’s fees because this was an action to “modify” the agreement not “enforce” it.
(10-0)

Scott v. UnitedHealthcare of Mississippi, Inc., 2022-CA-00963-COA (Civil – Insurance)
Affirming dismissal for want of prosecution where an 18-month period of inactivity followed the filing of the compliant, interrupted only by some activity prompted by the circuit clerk’s notice of intent to dismiss under Rule 41, that then followed by another 18-month period of inactivity and a second Rule 41 notice, holding that the trial court did not abuse its discretion in dismissing the case even though the plaintiff filed a “Motion to Leave Case on the Docket” after the second Rule 41 notice and that the Court otherwise had inherent power to dismiss for want of prosecution.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

NOTE – The Court was not persuaded by the plaintiff’s efforts to assign blame to the COVID pandemic. The plaintiff argued:

The Court addressed this argument later in the opinion:

Hogan v. Hattiesburg Clinic, P.A., 2022-CA-00650-COA (Civil – Medical Malpractice)
Affirming the circuit court’s denial of the plaintiffs’ 56(f) motion filed the day before the motion for summary judgment hearing, holding that the plaintiffs’ 56(f) motion did not mention the need to obtain additional expert medical opinions and the plaintiffs had not otherwise shown that additional expert opinion could establish proximate cause.
(8-1-0: McCarty concurred in part and in the result without separate written opinion; Carlton did not participate.)

Other Orders

Love v. State, 2021-CP-01101-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of April 4, 2023

I am playing catch-up because my paying work had me preoccupied last week. The Mississippi Court of Appeals handed down seven opinions last Tuesday. There were a couple of direct criminal appeals, an alimony case, an appeal of a $2.8M auto liability verdict, a couple of PCR cases, and an appeal of an MDOC issue.

Gillenwater v. Redmond, 2021-CA-01378-COA (Civil – Domestic Relations)
Affirming modification of alimony, holding that chancellor did not abuse her discretion by reducing (but not terminating) the alimony obligation based on the ex-wife’s cohabitation and mutual support.
(8-1-0: Westbrooks concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Tubwell v. State, 2022-KM-00342-COA (Criminal- Misdemeanor)
Affirming conviction of violating the child-restraint laws, holding that there was sufficient evidence to support the conviction where there were two adults and three children in a single-cab pickup and one child was sitting in the driver’s lap.
(8-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion.)

Winters v. State, 2022-CP-00435-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in finding that the motion was time-barred, successive, and without merit.
(10-0)

Williamson v. State, 2021-KA-00830-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, burglary of a shed, and trafficking stolen firearms, holding that the evidence was sufficient and that the verdict was not against the weight of it and that there was no error admitting evidence of other crimes, in denying a motion to suppress evidence obtained in a search of the defendant’s home, in denying a motion for continuance, or in not halting trial during a power outage.
(10-0)

Everett v. State, 2021-CP-01385-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the illegal sentence claim was time-barred and without merit and that the claim regarding earned-discharged credits was properly dismissed because that claim should have been filed in the venue where the plaintiff is housed.
(8-1-0: No separate opinions – Westbrooks concurred in result only and Smith did not participate)

Robinson v. MDOC, 2022-CP-00018-COA (Civil – State Boards & Agencies)
Affirming denial of petition for judicial review after the petitioner was denied a request to participate in the Meritorious Earned TIME Incentive Program, holding that the circuit court did not err in finding that the court lacked personal jurisdiction because MDOC had not been given notice of the appeal and that the petitioner failed to exhaust his administrative remedies.
(8-2-0: No separate opinions – McCarty concurred in part and in the result and McDonald concurred in result only.)

Kirk v. Newton, 2021-CA-00684-COA (Civil – Tort)
Affirming a nearly $2.8 million verdict in an auto liability case, holding that the question of who caused the accident was a fact issue for the jury, that there was no evidence of bias, passion, or prejudice to show that the award should be reduced or set aside, and that there was no error in using national average for wage calculation that was lower than the plaintiff’s actual wages where the jury heard both sides from experts and weighed their credibility.
(8-1-1: Wilson concurred in part and in the result without separate written opinion; Greenlee dissented.)

NOTE – I do not think this case represents the departure from Rebelwood that I thought it would when I was first reading it. My take is that the fact that the national average figure used by the plaintiff was less than the actual wage-earning history was critical to this decision.

Other Orders

$41,080 v. State, 2021-CA-00692-COA (denying rehearing)

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (denying rehearing)

Owens v. State, 2021-KA-000887-COA (denying rehearing)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 16, 2022

The Mississippi Court of Appeals handed down seven opinions today. There are three criminal cases that address jury instructions, improper prosecutorial argument, and the admissibility of a letter aimed at the credibility of a State’s witness. There is also a divorce case addressing issues several issues related to alimony, a case deciding whether the right to arbitration was waived, a case seeking to impose a constructive trust on land, and an unemployment case.

Vector Transportation Co. v. Mississippi Department of Employment Security, 2021-CC-00574-COA (Civil – State Board and Agencies)
Affirming the circuit court and MDES Board of Review’s finding that the claimant was entitled to unemployment benefits, holding that the circuit court’s determination that the employer failed to prove that the claimant was discharged for misconduct was not contrary to law, arbitrary or capricious, or not supported by substantial evidence.
(9-0: Chief Judge Barnes did not participate.)

Clay v. State, 2021-KA-00790-COA (Criminal – Felony)
Affirming conviction of uttering a forgery and sentence as a nonviolent habitual offender, holding that the circuit court did not err in refusing the defendant’s mistake-of-fact jury instruction considering all jury instructions read together.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion.)

Murry v. State, 2020-KA-01363-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding (1) that that the prosecutor made an improper “send-a-message” argument during closing but that absent the prosecutor’s improper argument the jury would have found the defendant guilty and (2) that the circuit court did not commit plain error in admitting photographs that the defendant did not object to. The Court of Appeals also declined to decide the defendant’s ineffective assistance of counsel claim and recognized that it was preserved for PCR.
(10-0)

NOTE – Here are the “send-a-message” comments that the Court of Appeals held “[w]ithout question . . . run afoul of the clear direction given by the highest appellate courts in our state and nation” and that the defendant’s attorney did not object to at trial:

Lewis v. State, 2021-KA-00736-COA (Criminal – Felony)
Affirming convictions of conspiracy and armed robbery, holding that the trial court did not err by excluding a letter the defendant sought to introduce that accused a witness of past instances of false accusations because it was hearsay and did not fall within an exception to the inadmissibility of hearsay.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Phang v. Phang, 2021-CA-00752-COA (Civil – Domestic Relations)
Affirming in part and reversing in part several aspects of the chancery court’s judgment of divorce, holding that the chancellor (1) did not err in the award of permanent alimony, (2) erred in not specifying what happened to the alimony obligation if the ex-husband predeceased the ex-wife, (3) erred in requiring the ex-husband to maintain an excessive life insurance policy naming the ex-wife as the beneficiary, (4) erred in ordering the ex-husband to provide annual proof of income to his ex-wife.
(10-0)

White v. White, 2021-CP-00333-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s dismissal of a son’s complaint against his mother seeking damages and to impose a constructive trust on land he had deeded his mother, holding that the circuit court did not err in ruling that the claim for damages was barred by the statute of limitations but did err to the extent it dismissed the claim to recover and impose a constructive trust because the 10-year statute of limitations had not run on those claims when the complaint was filed.
(10-0)

Note – There was a lengthy footnote to remand declaration, discussing the odd situation presented where the Court of Appeals was remanding to the Harrison County Circuit Court a claim seeking to impose a trust on land located in Pike and Lincoln County.

Purvis v. Mar-Jac Poultry MS, LLC, 2021-CA-00039-COA (Civil – Contract)
Affirming the circuit court’s decision granting the defendant’s motion to compel arbitration, holding that the defendant did not waive arbitration by refusing the plaintiff’s pre-suit arbitration demand or by filing a counterclaim contemporaneously with its motion to compel arbitration and holding that the arbitration provision requiring an arbitration demand within 120 days after notice of a claim did not and could not alter the three-year statute of limitations.
(6-1-2: Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Smith did not participate.)

Other Orders

Wofford v. State, 2020-KA-01341-COA (denying rehearing)

Adams v. State, 2020-KA-01383-COA (denying rehearing)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (denying rehearing)

Frost v. State, 2021-CA-00152-COA (denying rehearing)

Edwards v. State, 2021-KA-00259-COA (denying rehearing)

Carter v. Total Foot Care, 2021-CA-00610-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of July 26, 2022

The Mississippi Court of Appeals was short on opinions and long on “housekeeping” orders today. There were two opinions affirming criminal convictions and one chancery matter dealing with division of marital assets, alimony, and custody/visitation. One of the criminal appellants made a scrappy argument that Covid deprived him of due process during his trial.

Boyd v. State, 2021-KA-00066-COA (Criminal – Felony)
Affirming conviction of two counts of murder and one count of aggravated assault stemming from a marijuana deal that went off the rails, holding that the defendant failed to meet his burden of proving ineffective assistance of counsel amounting to a violation of constitutional rights and that review of the record showed affirmatively that his ineffective assistance claims were without merit. The meritless issues raised involved the lack of a request for a jury instruction regarding imperfect self-defense manslaughter, the lack of objection to an investigator’s testimony regarding Facebook messages and the admission of those messages as exhibits, the lack of objection to the State’s cross-examination of the defendant regarding text messages, and the lack of objection to comments by the prosecutor during closing.
(9-1-0)

Walker v. State, 2021-KA-00483-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the evidence was sufficient even without “physical or scientific” evidence, that there was no due process violation in holding trial during the Covid pandemic, that the defendant was procedurally barred from arguing prosecutorial misconduct because he cited no evidence to support it, that there was no error in admitting testimony of two investigators, and that there was no miscarriage of justice in the prosecutor reading only a portion of a jury instruction during closing.
(10-0)

ADDENDUM – COVID and the Law: The defendant argued that fear of Covid created an urgency among the jurors that prevented them from faithfully discharging their sworn duties. This argument failed for want of evidence:

Garner v. Garner, 2021-CA-00038-COA (Civil – Domestic Relations)
Affirming the chancellor’s awards following an irreconcilable differences divorce between an OB/GYN and her husband, rejecting the ex-husband’s arguments on appeal and holding that his award of 48% of the martial property was the product of a proper Ferguson analysis, that there was no error awarding him rehabilitative alimony in lieu of more “accessible cash,” and that chancellor properly applied the Albright factors in awarding sole legal and physical custody to the mother.
(9-1-0)

Other Orders

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (denying rehearing)

Magee v. State, 2020-KA-01378-COA (denying rehearing)

Haynes v. State, 2020-KA-01397-COA (denying rehearing)

Camphor v. State, 2021-CP-00048-COA (recalling mandate and accepting motion for rehearing as timely)

Jones v. State, 2021-KA-01263-COA (dismissing motion to dismiss appeal as untimely and granting appellant’s motion to proceed out-of-time)

Lawrence v. State, 2021-TS-01324-COA (granting appellant’s motion to voluntarily dismiss appeal)

Wilson v. State, 2022-TS-00268-COA (dismissing appeal as untimely)

Harrell v. State, 2022-TS-00276-COA (denying appellant’s pro se motion to reinstate appeal)

Rice v. State, 2022-TS-00400-COA (affirming circuit court’s judgment)

Gutierrez v. State, 2022-TS-00459-COA (dismissing appeal for lack of appealable judgment)