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)
The Court of Appeals handed down nine opinions today and there is something for just about every practice area. There are two appellate jurisdiction cases, a will contest, a breach of contract case, two direct criminal appeals, a divorce/marital estate division case, a breach of termite contract case, an intra-church lawsuit, and an intentional tort/attorney’s fees case.
Herning v. Lakeview S/C Partners, Ltd., 2021-CA-01427-COA (Civil – Other) Affirming the circuit court’s dismissal of the defendant’s appeal from summary judgment for the plaintiff entered by the county court, holding that the defendant failed to pay the cost bond for his appeal within the thirty-day time limit so the circuit court lacked jurisdiction. (8-2: McDonald concurred in part and dissented in part without separate written opinion; Lawrence dissented without separate written opinion.)
Pearson v. Eubanks, 2022-CA-00011-COA (Civil – Wills, Trusts & Estates) Reversing the chancery court’s dismissal of a will contest, holding that the plaintiffs’ well-pleaded allegations when the filed the will contest provided them stating to contest the will on undue influence grounds. (10-0)
Lewis v. State, 2021-KA-00472-COA (Criminal – Felony) Affirming conviction of first and second degree murder, holding: 1. No error in transferring venue that the defendant requested. 2. No error in denying Castle Doctrine and stand-your-ground jury instructions. 3. The doctrine of retroactive misjoinder did not apply. 4. Limiting the defense’s cross-examination of a witness about his pending indictment was harmless error. 5. The objection to the investigator’s testimony about exit wounds was waived. 6. No speedy trial violation (issue raised pro se) 7. No error in denying the motion to quash and dismiss the indictment (issue raised pro se) 8. The State did not commit prosecutorial misconduct (issue raised pro se) 9. No error in allowing the jury to review transcript of the defendant’s recorded statement (issue raised pro se) 10. Evidence was sufficient and the verdict was not against the overwhelming weight of it (issue raised pro se) (7-3-0: Barnes and Lawrence concurred in part and in the result without separate written opinion; Smith concurred in part and in the result, joined by Barnes and Lawrence.)
Kloss v. Bay Pest Control, Inc., 2021-CA-01117-COA (Civil – Contract) Affirming summary judgment dismissing breach of termite-prevention contract and negligence claim, holding that the presence of termites alone did not support the breach of contract claim or the negligence claim. (8-2-0: Westbrooks and McDonald concurred in result only without separate written opinion.)
Underwood v. State, 2021-CP-01123-COA (Civil – Other) Dismissing direct appeal of a guilty plea for lack of jurisdiction without prejudice. (10-0)
Christian v. State, 2021-KA-00898-COA (Criminal – Felony) Affirming conviction of aggravated assault upon receipt of a Lindsey brief and the Court’s review of the record, holding that there were no arguable issues for appeal. (10-0)
Lewis v. Lewis, 2022-CA-00016-COA (Civil – Domestic Relations) Affirming the chancery court’s line of demarcation for division of the marital estate and award of alimony, holding that the chancellor was well within her discretion to use a December 2020 temporary order as the line of demarcation rather that the trial date and that the chancellor’s alimony findings were sufficient and her ruling was not ab abuse of discretion. (10-0)
Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (Civil – Other) Reversing a monetary judgment following a jury trial, holding that the board of trustees of a church lacked standing to sue the church’s senior pastor and chairman of its deacons for breach of fiduciary duties and other claims, holding that the board lacked authority to file the lawsuit without the church members’ approval and lacked authority to maintain suit after a majority of members voted against it. (5-2-3: Westbrooks and Emfinger concurred in part and in the result without separate written opinion; Greenlee dissented without separate written opinion; Barnes dissented, joined by Greenlee and McDonald)
Herbert v. Herbert, 2021-CA-01291-COA (Civil – Domestic Relations) Affirming on direct appeal and reversing on cross-appeal, holding that the circuit court erred in granting summary judgment on the grounds the affirmative defense of release because that defense had been waived but affirming on de novo review of the merits of claims for intentional infliction of emotional distress, verbal assault, conversion, fraudulent misrepresentation, defamation, and breach of contract, but reversing the circuit court’s denial of attorney’s fees to the defendant and remanded for further proceedings. (6-1-2: McDonald concurred in result only without separate written opinion; Carlton concurred in part and dissented in part, joined by McDonald; Emfinger did not participate.)
Other Orders
Lofton v. Lofton, 2021-CA-00035-COA (denying rehearing)
Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (denying rehearing)
Buchanan v. State, 2021-CP-01069-COA (recalling mandate so motion for rehearing can proceed on merits)
The Mississippi Court of Appeals handed down five opinions today. There is one decision that turns on an appellate procedure issue, a workers’ comp decision, a real property decision addressing the lack of findings of fact and conclusions of law when a request was made under Rule 52, and two PCR cases.
Jones v. State, 2021-CP-01088-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion because it was barred as a successive motion and time-barred, holding that the plaintiff did not show that these bars did not apply to his claim. (10-0)
Townsend v. State, 2021-CP-01091-COA (Civil – PCR) Affirming denial of the plaintiff’s PCR motion, holding that the plaintiff had waived his ineffective assistance of counsel claim when he pleaded guilty, that the indictment was not facially defective, that a pre-sentence report was not required, that the plaintiff’s due process rights were not violated because of his guilty plea, and that the plaintiff’s rights were not violated for sentencing him as a habitual offender. (10-0)
Thompson v. AAA Cooper Transportation, 2021-CP-00658-COA (Civil – Property Damage) Affirming the circuit court’s judgment dismissing an appeal from county court for lack of appellate jurisdiction, holding that because the appellant failed to file a notice of appeal and pay the cost bond within the time provided he had not timely perfected his appeal. (10-0)
Darty v. Gulfport-Biloxi Regional Authority, 2021-WC-00986-COA (Civil – Workers’ Compensation) Affirming the MWCC’s decision denying the claimant’s motion to reinstate his claim as time-barred, holding that the claimant’s failure to timely request review of the AJ’s dismissal of the claim due to the claimant’s failure to respond to a status request barred the claim. (10-0)
PRACTICE POINT – This result is not as harsh as it seems from this short summary. The status request was issued on January 24, 2017, which was apparently more than a year after prehearing statements were filed. The order of dismissal for failing to respond to the status request was entered on March 2, 2017. The twenty days to file a written request for review of that order passed, and then another three years passed before the claimant hired a new attorney who filed a motion to reinstate the claim.
Rebuild America, Inc. v. Colomb, 2021–CA-00213-COA (Civil – Real Property) Reversing the circuit court’s judgment that had affirmed both the county court’s dismissal of an action for unlawful entry and detainer and denial of the plaintiff’s motion for findings of fact and conclusions of law, holding that the county court committed reversible error when it did not provide findings of fact and conclusions of law after a request was made under Miss. R. Civ. P. 52. (4-2-4: Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Carlton, and Judge Wilson, and in part by Judge McDonald)
NOTE – Today’s unanimity streak was shattered in dramatic fashion with this decision. The disagreement between the majority and the dissent that interests me the most is whether Rule 52 applies at all. The majority held that it does and reversed because the county court did not make findings of fact and conclusions of law when it was asked to. The dissent argues in a footnote that Rule 52 does not apply:
Rule 52 states:
Maybe the dissent will bolster a cert petition and the Mississippi Supreme Court will weigh-in on this issue.
Other Orders
Beale v. State, 2020-KA-00614-COA (denying rehearing)
Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (denying rehearing)
Thompson v. State, 2020-CP-01236-COA (denying rehearing)
Stribling v. Youth Court of Washington County, Mississippi, 2021-CA-00007-COA (dismissing appeal sua sponte for lack of appealable judgment)
Porras v. State, 2021-CP-00052-COA (denying rehearing)
Barnes v. State, 2021-KA-00404-COA (denying rehearing)
A deposition took me out of blogging service for most of the afternoon, so a little later than usual I give you summaries of the nine opinions handed down by the Mississippi Court of Appeals. These opinions cover the statute of frauds, trusts, appellate jurisdiction, youth court, authentication of text messages, equitable division and alimony in a divorce case, workers’ comp, PCR, and more.
SEL Business Services, LLC v. Lord, 2021-CA-00368-COA (Civil – Real Property/Statute of Frauds) Affirming the chancery court’s dismissal of a suit to reclaim property or alternatively for unjust enrichment, holding that a “handshake deal” for the purchase of a building that was sold before that deal came to fruition was subject to the statute of frauds, that the statute of frauds was not satisfied, and that the equitable remedy of unjust enrichment was therefore unavailable. (All judges concurred.)
Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (Civil – Wills, Trusts & Estates/Appellate Procedure/Appellate Jurisdiction) Granting a motion to dismiss an appeal for lack of jurisdiction in a case of first impression, holding that the 30-day time period for perfecting an appeal began to run upon the entry of an order adjudicating a claim for attorney’s fees against a trust–not the final judgment terminating the trust. (All judges concurred.)
Smith v. Adams County Youth Court, 2021-CP-00196-COA (Civil – Juvenile Justice) Dismissing an appeal of the denial of a minor’s post-disposition motion for modification arguing that his guilty plea was the result of ineffective assistance of counsel, holding that the notice of appeal was prematurely filed because the youth court had not been given an opportunity to consider these arguments and any supporting evidence. (Judge Wilson concurred in result only without separate written opinion.)
Warner v. Warner, 2020-CA-01098-COA (Civil – Domestic Relations/Divorce/Valuation/Equitable Division/Alimony/Contempt) Reversing the chancellor’s judgment in a divorce case, holding that the chancellor erred in valuation and equitable division of marital assets, in the award of alimony, and in finding the ex-husband in contempt and awarding attorney’s fees as a result. (Judge Wilson concurred in part and in the result without separate written opinion.)
Simpson v. State, 2021-KA-00075-COA (Civil – Felony/Authentication) Affirming convictions of two counts of first-degree murder, first-degree arson, and possession of a deadly weapon by a felon, holding that there was no plain error with regard to the authentication of text messages and that there was no merit to the claim of ineffective assistance for not objecting to the properly-authenticated text messages. (Judge Emfinger did not participate.)
Carson v. State, 2021-KA-00436-COA (Criminal – Felony/Weight and Sufficiency) Affirming conviction of possession of cocaine, holding that the circuit court did not err in denying a motion for new trial challenging the weight and sufficiency of the evidence and finding no merit to the defendant’s pro se arguments that his rights under the Fourth Amendment and the Confrontation Clause were violated, that the State’s case hinged on “racial profiling,” that he had ineffective assistance of counsel, and that the circuit judge failed to comply with Sharplin. (All judges concurred.)
Ellis v. State, 2020-CP-00770-COA (Civil – PCR) Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was time-barred and that the plaintiff failed to raise any claims resulting in the deprivation of his fundamental constitutional rights that would defeat the time bar. (Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion.)
Reardon v. State, 2020-CP-01259-COA (Civil – PCR) Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was procedurally barred and that his claims of ineffective assistance of counsel, deprivation of fundamental rights, and failure to recuse were without merit. (Chief Judge Barnes and Judge Wilson concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion. Judge Greenlee and Judge McCarty did not participate.)
Duren v. Effex Management Solutions, LLC, 2021-WC-00337-COA (Civil – Workers’ Compensation) Affirming the Commission’s ruling, holding that there was substantial evidence to support the Commission’s decision that the claimant failed to prove that he suffered a permanent disability and the decision to award TTD through the date of MMI, but denying post-MMI medical treatment, prescription, and mileage reimbursements. (Judge Wilson concurred in part and in the result without separate written opinion. Judge Westbrooks and Judge McDonald concurred in the result only without separate written opinion.)
DEEPER DIVE: This case had an interesting post-MMI fact pattern where the claimant was released to return to work without restrictions, was offered to return to work for the Employer at his pre-injury wages, and returned to work there, but then quit working for the Employer due to complaints of pain. Under these facts, the Court of Appeals noted that there was a presumption of no loss of wage-earning capacity and held that the claimant did not overcome it:
Other Orders
Hammer v. State, 2019-KA-01633-COA (denying rehearing) Shannon v. Shannon, 2020-CA-00847-COA (denying rehearing)
Mississippi Appeals Blog 