Tag: Appellate Procedure

Mississippi Court of Appeals Decisions of October 18, 2022

We got five opinions today from the Mississippi Court of Appeals. There are two chancery cases, one dealing with termination of parental rights and another dealing with an appeal from a judgment of divorce, distribution, and child support. There is an appeal of a summary judgment in a slip and fall case, an unsuccessful appeal from a default judgment, and a criminal case challenging the admissibility of witness testimony.

Middlebrook v. Fuller, 2021-CA-00590-COA (Civil – Custody)
Affirming the chancery court’s judgment adjudicating paternity and terminating parental rights, holding that there was clear and convincing evidence to terminate parental rights and that the chancellor did not err in making that determination contrary to the GAL’s recommendation.
(9-1: Judge Westbrooks concurred in part and dissented in part without written opinion.)

Hill v. Central Sunbelt Federal Credit Union, 2021-CA-00833-COA (Civil – Personal Injury)
Affirming the circuit court’s decision granting summary judgment dismissing a slip and fall case, holding that rainwater on a porch did not constitute a dangerous condition where it was actively raining, surveillance video showed that water was not pudding or accumulating on the porch, and there was no evidence of other falls.
(7-1-1: Judge Westbrooks concurred in the result only without separate written opinion; Judge McDonald concurred in part and dissented in part without separate written opinion; Judge Smith did not participate.)

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (Civil – Real Property)
Affirming the trial court’s denial of the defendant’s motion to set aside entry of default, holding that the inadvertence by the defendant’s registered agent was not a legitimate explanation justifying the default and that the trial court did not abuse its discretion in determining that the defendant had not presented a sufficient colorable defense.
(10-0)

Davis v. State, 2021-KA-00593-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm, holding that a witness’s testimony that she saw the defendant with a firearm weeks before the incident was properly admitted and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Green v. Green, 2021-CP-01167-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on appeal from the chancery court’s judgment in a divorce case, holding that the appellant waived her right to challenge the merits of her divorce because she failed to appear at the hearing on the merits, that she waived that issue of distribution of marital assets by failing to cite legal authority to support her claims on appeal, but reversing and remanding for the chancellor to make specific findings of fact and conclusions of law consistent with Ferguson and to issue written findings concerning the reasonableness of the amount of child support.
(8-2: Judge McCarty concurred in part and dissented in part, joined by Judge Greenlee -“If there is ever a case for waiver, this is it.”)

Other Orders

Roberson v. State, 2020-CA-01208-COA (denying rehearing)
Siggers v. State, 2021-CP-00985 (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of October 11, 2022

I did not post summaries last week because was out of town all week. I plan to do a post summarizing last week’s decisions at some point, but today is not that day because the Court of Appeals just handed down nine more opinions.

Today was a big day for Rule 4 and for workers’ comp, with two decisions for each of those subject areas. One of the workers’ comp decisions has a significant amount of analysis of the issue of whether the claimant overcame the presumption of no loss of wage-earning capacity. The other workers’ comp decision provides some clarity (and teeth) to the affirmative defense of intoxication. Additionally, we learned today that you should not white-out the defendant’s name on a summons after it is issued, write the name of the defendant to be served over the white-out, and then serve that altered summons on your defendant. There is also a divorce case dealing with child support, several criminal cases, and a lone PCR case.

Carnley v. State, 2021-KA-00438-COA (Criminal – Felony)
Affirming conviction of rape, declining to reverse based on the exclusion of the victim’s prior inconsistent statement because no proffer was made and holding there was no error in the admission of expert testimony, that the defendant’s trial counsel was not ineffective, that the jury was properly instructed to continue its deliberation in lieu of a Sharplin instruction, and that the trial court did not commit cumulative error.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Wharton v. State, 2021-CA-00136-COA (Civil – Other/Civil Procedure)
Reversing a default judgment on a civil asset forfeiture petition, holding that the State failed to “strictly” comply with the Rule 4 requirements for service by publication, that the respondent did not waive the defense of insufficiency of service of process by failing to plead it in his answer because the answer was filed after the entry of default, and that the case should be remanded to give the State an opportunity to show good cause for failing to serve process before the statute of limitations expired.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion and Judge Emfinger did not participate.)

NOTE 1– There is a lot of civil and appellate procedure in this opinion (Miss. R. Civ. P. 4, 55; Miss. R. App. P. 2, 31). The appellate procedure ruling was interesting because the appellant missed his briefing deadline, but the Court of Appeals held that he should have been afforded 14 days to correct this “deficiency” and since he filed two days late he was within that window. This is interesting, but not a maneuver I plan to attempt.

Note 2 – I also want to point out this holding that although it is a fact-bound holding, these are facts one could find oneself bound up in.

Howard Industries v. Hayes, 2021-WC-00694-COA (Civil – Workers’ Comp)
Affirming the MWCC on direct appeal and cross appeal, holding that there was substantial evidence to support the Commission’s award of sanctions against the Employer’s counsel for attempting to mislead the Commission, the Commission’s finding that the claimant had overcome the presumption of no loss of wage-earning capacity and awarding permanent disability benefits for her 2007 injury, and the Commission’s award of 38% industrial loss of use of her right upper extremity for her 2015 injury.
(5-4: Judge Wilson concurred in part and dissented in part (on the sanction issue), joined by Judge Greenlee, Judge McCarty, and Judge Smith. Judge Emfinger did not participate.)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that the claimant was not entitled to benefits based upon the affirmative defense of intoxication, holding that the Employer’s payment of benefits did not estop the Employer from asserting the intoxication defense that was pleaded in the answer and that the very presence of marijuana in the claimant’s system raised the presumption of intoxication.
(10-0)

PRACTICE POINT – This case seems to answer a question that has lingered since the MWCA was amended to add the intoxication defense about what the effect of a positive drug test that does not give any indication of the degree of intoxication. In this case, the Court of Appeals decisively that any amount of intoxication triggers the presumption. A claimant can still seek to overcome that presumption, but based on the Meek decision a claimant cannot overcome the presumption by pointing to a lack of proof of the level of marijuana in the claimant’s system.

Ponder v. Ponder, 2020-CA-01196-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor did not err or abuse his discretion in awarding child support retroactive to a date prior to the filing of the petition for modification but holding that there was no legal basis for an award of attorney’s fees against the father for failing to comply with an agreed order.
(9-1-0: Judge McDonald concurred in part and in the result without separate written opinion.)

Villareal v. State, 2021-CP-00440-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the defendant’s sentence was not illegal.
(9-0: Judge Lawrence did not participate.)

Carruthers v. State, 2021-KA-00654-COA (Criminal – Felony)
Affirming conviction of meth trafficking as subsequent offender in possession of a firearm near a church and possession of firearm by felon, holding that the defendant did not receive ineffective assistance of counsel for alleged failures to object at various points in the trial or for alleged failure to investigate or for alleged failure to stipulate to a prior felony to keep evidence of the prior felony.
(7-2-0: Judge McCarty concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion.)

Arrington v. Anderson, 2021-CA-00233-COA (Civil – Personal Injury)
Affirming dismissal of two identical negligence lawsuits, holding that a summons that was altered after issuance to change the name of the party to be summonsed to the defendant’s name and then served on the defendant was not valid service of process, that since process was not served the statute of limitations had expired the first lawsuit, and that the second lawsuit was not a “refiling” of the first since it was filed while the first suit was still pending.
(8-2-0: Judge Wilson and Judge McDonald concurred in result only without separate written opinion.)

Daniels v. State, 2021-KA-01067-COA (Criminal – Felony)
Affirming conviction of two counts of armed robbery, two counts and aggravated assault, one count of house burglary, and one count of grand larceny, holding that the circuit court did not err in telling the jury panel that the defendant was charged as a habitual offender or in denying the defendant’s motion for a mistrial and holding that there was no abuse of discretion in admitting evidence about the defendant’s apprehension, arrest, and felony charges that immediately followed the activities for which he was convicted in this trial.
(8-2-0: Judge Wilson and Judge Emfinger concurred in the result without separate written opinion.)

Other Orders

Short v. State, 2021-KA-00499-COA (denying rehearing)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (denying rehearing)
Watkins v. State, 2021-CP-01301-COA (granting appellant’s pro se motion for leave to file an out-of-time brief)
Young v. State, 2022-CP-00141-COA (denying State’s motion to dismiss appeal)

Hand Down List

Mississippi Court of Appeals Decisions of August 9, 2022

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)

Hand Down List

Mississippi Supreme Court Decisions of August 4, 2022

The Mississippi Supreme Court handed down two opinions today and in both it reversed the Court of Appeals. One involves a judgment lienholder’s plight after a tax sale of which it was not given notice. The other is an appellate procedure case addressing whether there was a final, appealable order.

HL&C Marion, LLC v. DIMA Homes, Inc., 2020-CT-00750-SCT (Civil – Real Property)
Reversing the Court of Appeals and the chancellor in suit to conform and quiet title, holding that in this case where a home builder obtained and enrolled a judgment against the property owners for an unpaid construction balance, the property was sold at a tax sale and then sold again, that no legal authority required notice of the tax sale to the home builder/judgment lienholder prior to the expiration of the two-year redemption period and that the chancery clerk had no duty to conduct a search of the judgment roll. Judgment was rendered in favor of the purchaser.
(6-0: Chief Justice Randolph, Justice Beam, and Justice Griffis did not participate)

OVERRULE ALERT – This decision overruled at least two prior decisions where it was held that equity allowed for an extension of the two-year, statutory redemption period because such decisions run afoul of the Mississippi Constitution which gives the Legislature the exclusive right to set the conditions for redemption:

Humphrey v. Holts, 2021-CT-00046-SCT (Civil – Other)
Reversing the Court of Appeals’ decision dismissing the appeal for lack of a final, appealable order, holding that the chancery court’s order dismissing the complaint upon the motion of one of two defendants left no claims to be adjudicated and it was therefore a final, appealable judgment.
(9-0: Justice King specially concurred, joined by Justice Kitchens)

PRACTICE POINT – Mississippi’s appellate courts dismiss a significant number of appeals for lack of final, appealable judgment by strictly applying Miss. R. Civ. P. 54(b). This opinion does not reference Rule 54(b) but it appears that the chancellor’s order in this case did not contain the magic words in 54(b). The Supreme Court essentially held that 54(b) did not apply here because the chancellor’s order disposed of the entire complaint (i.e. it did not dispute of fewer than all claims/parties) so the magic words were not required. My takeaway: When Rule 54(b) applies it must be strictly complied with, but don’t assume it applies.

In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (Order appointing Helen Morris, Marcus A. McLelland, and Katherine K. Farese to three-year terms as members of the Commission on Mandatory Continuing Legal Education effective August 1, 2022)

In Re: Advisory Committee on Rules, 89-R-99016-SCT (Order authorizing and directing the disbursement of $15,000.00 from the Court’s Judicial System Operation Fund to the Mississippi Supreme Court Advisory Committee on Rules for its necessary work through September 30, 2022)

City of Jackson, Mississippi v. Johnson, 2020-CA-00318-SCT (denying rehearing)

Nelson v. State, 2020-M-01417 (denying application for Leave to Proceed in the Trial Court filed pro se and warning petitioner against further frivolous filings)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2022-AD-00001-SCT (En banc order directing the disbursement of $177,295.27 in civil legal assistance funds among the MS Volunteer Lawyers Project, North MS Rural Legal Services, and MS Center for Legal Services)

Hand Down List

Mississippi Court of Appeals Decisions of June 7, 2022

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)

Hand Down List

Mississippi Court of Appeals Decisions of May 24, 2022

The Mississippi Court of Appeals handed down nine opinions today. Today’s offerings include a divorce case, a DUI/marijuana case, a personal injury case, a malicious mischief case, a jurisdiction case with Rule 54(b) claiming more victims, and a handful of PCR cases.

Camphor v. State, 2021-CP-00048-COA (Civil – PCR)
Affirming denial of PCR motion asserting ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous.
(All judges concurred.)

Powell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (Civil – Real Property/Appellate Jurisdiction/Rule 54(b))
Dismissing appeal of the chancery court’s order dismissing the debtor’s complaint with prejudice and granting the lender’s counterclaim seeking to proceed with a judicial foreclosure, holding that (1) because the counterclaim for judicial foreclosure was still pending the chancery court’s order did not adjudicate all claims against all parties and (2) the chancery court’s order did not contain the certification required by Rule 54(b).
(All judges concurred.)

Klis v. State, 2021-CA-00349-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion, holding that the circuit court did not err in determining that the motion was time-barred and that his ineffective-assistance of counsel claim did not provide an exception to the bar.
(Judge Smith did not participate.)

Short v. State, 2021-KA-00499-COA (Criminal – Felony/Jury Instructions)
Affirming conviction of malicious mischief, holding that a jury instruction setting forth the elements of malicious mischief did not constructively amend the indictment because the record failed to show the alleged variance and, in light of the lack of objection by the defendant at trial, there was no plain error by the circuit judge.
(All judges concurred.)

Montgomery v. Montgomery, 2020-CP-01135-COA (Civil – Domestic Relations/Divorce/Habitual Cruel and Inhuman Treatment)
Affirming the chancery court’s judgment of divorce and final judgment regarding division of property and other financial matters, holding that the chancery court did not err in granting the husband a divorce on the ground of habitual cruel and inhuman treatment which included throwing items, death threats, and behavior that caused the wife’s family to try to get her to seek medical or psychiatric help. Regarding division of property, the Court of Appeals held that the chancery court did not err in dividing the property as the parties had agreed to. The Court of Appeals handled this case graciously, but appropriately noted that the pro se appellant had “waived consideration of the issues she raises on appeal.”
(All judges concurred.)

NOTE – Hiring an attorney to handle your appeal is generally a good idea. Relatedly, if you can’t find one to take your case, it might be a sign. The appellant in this case represented herself and it did not go well. For example:

Frost v. State, 2021-CA-00152-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s petition for expungement, holding that the circuit court did not err in ruling that it had no jurisdiction.
(Judge Wilson and Judge Emfinger concurred in part and in result without separate written opinion. Judge Smith did not participate.)

Pipkin v. State, 2021-CA-00517-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second motion for PCR, holding that the plaintiff failed to show that he had a procedurally-viable claim or an applicable exception to the procedural bar.
(Judge Wilson and Judge Lawrence concurred in part and in the result without separate written opinion)

Borsi v. State, 2021-KM-00643-COA (Criminal – Misdemeanor/DUI/Marijuana)
Affirming a conviction of DUI of marijuana, holding that the roadblock that led to the defendant’s arrest was for a proper purpose and conducted consistent with MHP’s general practice so there was no Fourth Amendment violation, that the defendant was not under custodial interrogation when he admitted to smoking marijuana so there was no Miranda violation, that the law was properly applied based upon “influence” rather than “impairment,” and that the trial court (in a bench trial) properly relied upon witness testimony and the evidence presented at trial. The defendant did not leave empty-handed, as the Court of Appeals reversed the assessment of an $85.00 transfer fee by the circuit clerk.
(Chief JUdge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)

NOTE – This is the second opinion in the last few weeks where the defendant argued that he might have partaken of marijuana, but he was not impaired by it. And it is the second opinion where the Court of Appeals has held that “influence” is not synonymous with “impairment” in this context. (The other opinion was Briggs v. State summarized here.)

Brewer v. Bush, 2020-CA-00214-COA (Civil – Personal Injury/Jury Instructions)
Affirming a defense verdict in a personal injury lawsuit where the plaintiff was helping the defendant put up a barbed wire fence and a bungee cord snapped and struck the plaintiff in the eye, holding that (1) a rational jury could have found that there was no master-servant relationship or that the tools provided were reasonably safe and that the defendant did not breach any duty owed to the plaintiff, (2) the jury was fairly instructed on the issue of proximate causation, (3) the trial judge did not abuse his discretion by giving the defendant’s instruction on “simple tools,” (4) submitting four verdict forms was not reversible error, and (5) the fact that defendant offered fifteen instructions did not result in prejudice to the plaintiff.
(All judges concurred.)

Practice Point – Fight jury instructions with jury instructions. If you don’t like something about opposing counsel’s jury instructions, propose one that fixes it:

Other Orders

Ladner v. State, 2020-KA-00299-COA (denying rehearing)
Denham v. Denham, 2020-CA-00675-COA (denying rehearing)
Dew v. Harris, 2020-CA-01261-COA (denying rehearing)
Miller v. State, 2021-TS-01412-COA (denying motion to reinstate appeal)
Nelson v. State, 2022-TS-00413-COA (denying appellant’s motion to stay appeal and dismissing appeal without prejudice for lack of final judgment

Hand Down List

Mississippi Court of Appeals opinions of May 10, 2022

The Mississippi Court of Appeals set a new record since the launch of this blog by handing down fourteen opinions. After briefly contemplating a dash to the exit, I decided to slog through all of them so you don’t necessarily have to. Needless to say, there is something for everybody today!

(Apologies for the all-but-certain uptick in typos)

Fugler v. Bank of Brookhaven, 2021-CA-00303-COA (Civil – Personal Injury/Premises Liability)
Affirming summary judgment in favor of the defendant in a slip and fall case, holding that the plaintiff, who allegedly tripped on a floor mat but testified she did not see the mat before tripping, failed rebut the defendant’s summary judgment motion and supporting affidavit stating that the bank had no knowledge of prior incidents with its floor mats or any issues with the mat involved, that around 300 customers entered the bank daily and the bank was not aware of any prior mat-related trips or complaints, that the mat was heavy-duty commercial grade and was replaced annually to prevent wear, and that bank employees constantly monitored the floors.
(All judges concurred.)

Keys v. Military Department Gulfport, 2021-WC-00352-COA (Civil – Workers’ Comp)
Reversing the Commission’s finding that the Employer/Carrier was entitled to a credit for indemnity payments that the claimant received but assigned back to the employer during the time the claimant was receiving paid sick leave, holding that since the claimant was awarded permanent total disability benefits, section 25-3-95(2)(b) (prohibiting a state employee from using accrued personal and/or medical leave and receiving workers’ comp to earn more than 100% of his state-employment wages) did not apply.
(Judge Wilson specially concurred, joined in part by Judge McCarty.)

NOTE – I think Judge Wilson’s special concurrence provides a clearer path forward in workers’ comp cases: Regardless of whether the indemnity benefits during the time in question were classified as TTD or PTD, the claimant was entitled to a total of 450 weeks of indemnity benefits (however classified) and since the claimant did not receive any indemnity benefits during the period he was assigning benefits back to the Employer, the Employer/Carrier were not entitled to a credit for those weeks.

Smith v. State, 2021-CP-00099-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se plaintiff’s PCR petition, holding that the plaintiff presented no evidence to show a reasonable ground for the trial court to believe he was incompetent to plead guilty.
(All judges concurred.)

Prystupa v. Rankin County Board of Supervisors, 2020-CA-01049-COA (Civil – MTCA/Statute of Limitations/Latent Injury)
Affirming the dismissal of a flooding damage MTCA claim based on the running of the statute of limitations, holding that this claim was an MTCA negligence claim subject to a one-year statute of limitations that began to run when the plaintiff knew or should have known of both the injury and its probable cause. In this case, the Court of Appeals held that the statute of limitations began to run when the plaintiff knew of the flooding (the injury) and knew it was due to a blocked drain (the cause) as opposed to when he found out that crushed pipe caused the blocked drain (i.e. caused the cause). The Court of Appeals also affirmed the circuit court’s denial of the plaintiff’s Rule 59(e) motion to aleter or amend based on fraudulent concealment and the circuit court’s denial of the plaintiff’s motion for leave to amend his complaint to add claims of nuisance and trespass.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Emfinger did not participate.)

TAKE HEED, lest you fall victim to the distinction between “statutory tolling” and “MTCA tolling”:

Schmidt v. Schmidt, 2020-CA-01253-COA (Civil – Custody)
Affirming the chancellor’s decision granting sole physical custody to the mother, holding that there was no error in finding that the deterioration of the parties’ ability to co-parent constituted a material change in circumstances entitling the mother to sole physical custody and no error in the application of the Albright factors.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s judgment affirming the Mississippi Employee Appeals Board’s decision upholding the claimant’s termination, holding that the claimant’s procedural due process rights were not violated because he was provided notice of the charges and an opportunity to be heard, that his substantive due process rights and rights under the MS State Personnel Board rules were not violated because the MEAB’s decision was supported by substantial evidence and was not arbitrary, and that the claim that the claimant was terminated because of communications with his wife and that the MEAB’s decision was based on uncorroborated hearsay was without merit.
(All judges concurred.)

McIntosh Transport, LLC v. Love’s Travel Stop & Country Stores, Inc., 2021-CA-00154-COA (Civil – Contract/Arbitration)
Reversing the circuit court’s order granting the defendants’ motion to compel arbitration, holding that the contract containing the contract was not binding on the plaintiff because it was signed by a 19-year-old who signed his grandfather’s name and whose only authority was the actual authority to retrieve the truck following repairs that did not include the authority to bind the company to arbitration.
(Chief Judge Barnes concurred in part and in the result without separate written opinion. Judge Carlton concurred in the result only without separate written opinion.)

Case v. Case, 2020-CA-01047-COA (Civil – Custody/Equitable Distribution of Marital Property/Albright Factors/Ferguson Factors)
Affirming the chancellor’s decision on child custody, but reversing the chancellor’s decision on the equitable distribution of marital property. Regarding custody, the Court of Appeals held that the chancellor’s application of the Albright factors was supported by substantial evidence. Regarding equitable distribution, the Court of Appeals affirmed all of the chancellor’s findings except his valuation of the marital property which it reversed and rendered due to a calculation error.
(Judge Wilson and Judge Westbrooks concur in part and in the result without separate written opinion.)

MY TAKE – Few, if any, of us are in the legal field because of a proclivity for math yet it still haunts us all.

Wadley v. Hubbs, 2021-CA-00866-COA (Civil – Real Property/Notice of Appeal)
Reversing the circuit court’s dismissal of the plaintiff’s appeal from a county court judgment as untimely, holding that the plaintiff’s notice of appeal that was stamped “Filed” after the county court’s judgment but before disposition of the plaintiff’s motion to set aside the judgment was effective and timely even though the header of the notice said “IN THE COUNTY COURT” because the body of the notice made it clear the plaintiff was appealing to the circuit court and the notice was stamped “Filed” by the circuit clerk.
(All judges concurred.)

Murray v. State, 2021-KA-00264-COA (Criminal – Felony/Hearsay/Rule 412)
Affirming conviction of statutory rape, holding that the circuit court erred in allowing the victim’s mother’s to testify about a neighbor’s out-of-court statement, but that it was harmless and “essentially cumulative evidence of non-criminal activity that [the defendant] admitted.” The Court of Appeals also held that the circuit court did not err in denying the defendant’s ore tenus request to compel the victim’s counseling records because even though a determination of whether the records were privileged could not be made until the records were examined, the defendant did not comply with Rule 412 of the Mississippi Rules of Evidence. The Court of Appeals also held that the plaintiff’s claims of ineffective assistance of counsel for failure to request an alibi instruction, failure to object to hearsay, failure to request a limiting instruction regarding the hearsay testimony, and failure to make a timely request for the victim’s counseling records did not entitled him to relief on this appeal.
(All judges concurred.)

Bailey v. State, 2021-KA-00281-COA (Criminal – Felony/Lindsey Brief)
Affirming conviction of fondling of a six-year-old and sentence to life imprisonment as a violent habitual offender, noting that the defendant’s appointed appellate counsel filed a Lindsey brief and holding that the defendant’s pro se brief arguing that the trial court lacked jurisdiction and that his indictment was not marked “filed” was factually mistaken and without merit.
(Judge Smith did not participate.)

Finley v. PERS, 2021-SA-00089-COA (Civil – State Boards and Agencies/PERS/Disability)
Reversing the circuit court’s judgment affirming PERS Medical Board’s denial of the plaintiff’s claim for non-duty-related disability retirement benefits, holding that PERS’s assessment of the plaintiff’s job requirements and ability to perform her job was arbitrary and capricious. The case was remanded for PERS to determine if the plaintiff could perform the true duties of registrar with her disability and the support staff, if any, she had at the time.
(Judge Wilson concurred in part and in result without separate written opinion.)

Boyd v. MDOC, 2021-CC-00459-COA (Civil – State Boards and Agencies/MDOC)
Affirming the MDOC’s disciplinary actions against the plaintiff whose oversight led to MDOC’s failure to issue an arrest warrant for a probationer who did not report to his assigned probation office upon release from MDOC custody who then killed two Brookhaven police officers in the line of duty, holding that the plaintiff failed to meet her burdens of proof and persuasion to overcome the presumption of correctness due MDOC’s decision.
(All judges concurred.)

Parker v. Ross, 2020-CA-01055-COA (Civil – Wills, Trusts, and Estates)
Affirming in part and reversing in part the chancery court’s grant of summary judgment in a claim alleging mismanagement of a trust and to recover real property that was allegedly improperly sold. The Court of Appeals affirmed the chancellor’s judgment in part, holding that any claims governed by the three-year statute of limitations were time-barred. The Court of Appeals also reversed the chancellor’s judgment in part, holding that the allegations related to the mismanagement of the trust were subject to a ten-year statute of limitations and that one of the plaintiffs had created a genuine issue of material fact as to his unsoundness of mind and remanded this matter to the chancery court for further proceedings.
(Judge Emfinger dissented, joined by Judge Wilson and Judge Greenlee and joined in part by Judge McDonald.)

Other Orders

Lawrence v. State, 2021-TS-1324-COA (providing, on the court’s own motion, the appellant and his attorney, Wayne Dowdy, one final opportunity to show cause why this appeal should not be dismissed as untimely)

Phew…

We did it, folks.