The Mississippi Supreme Court handed down four opinions today. Two are med mal cases, one of which addresses the application of statutory immunity for medical treatment during the COVID state of emergency. The other med mal case was up on an arbitration issue. The other two cases are direct criminal appeals. There is a judicial performance matter among the “other orders.”
Secrist v. Rush Medical Foundation, 2024-CA-01034-SCT (Civil – Med Mal) Affirming the dismissal of a medical malpractice case, holding that the trial court did not err in finding that the defendant medical providers were immune under section 11-71-7 (Supp. 2025) which provides legal immunity for healthcare providers for healthcare services performed during the COVID-19 state of emergency. (4-2: Griffis for the Court; Coleman specially concurred, joined in part by Randolph, Ishee, Griffis, and Sullivan; King concurred in result only without writing; Branning did not participate)
Note – Coleman’s specially concurred to discuss the role of legislative history in judicial decision-making:
…
Mallette v. Revette, 2024-CA-01277-SCT (Civil – Wrongful Death) Affirming the circuit court’s denial of a motion to compel arbitration, holding that the trial court’s finding of fact regarding the authenticity of the signature was entitled to deference, that the defendants did not carry their burden of proving actual authority, and that direct-benefits estoppel did not apply. (7-0: Coleman for the Court)
Gardner v. State, 2023-CT-00903-SCT, consolidated with 2018-KA-01337-SCT (Criminal – Felony) Affirming in part and reversing in part the Court of Appeals and reinstating and affirming the circuit court’s judgment, holding that the argument that the trial court erred by admitting prior felony convictions into evidence was procedurally barred by failure to object at trial and that there was no plain error. (4-2-1: Randolph for the Court; Coleman concurred in part and in the result without writing; King dissented, joined by Sullivan and joined in part by Coleman)
House v. State, 2024-KA-01432-SCT (Criminal – Felony) Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and that the verdict was not against the overwhelming weight of the evidence. (7-0: Coleman for the Court)
Other Orders
In Re: Gibson, 2024-CP-01303-SCT (per curiam affirmance)
In Re: Local Rules, 89-R-99015-SCT (granting motion to rescind a local rule in the First Chancery District)
Taylor v. State, 2023-CT-00738-SCT (denying cert)
Dew v. Greenwood Leflore Consolidated School District, 2024-CA-00067-SCT (denying rehearing)
Mississippi Commission of Judicial Performance v. Littleton, 2026-JP-00306-SCT (suspending a county court judge without pay pending further order of the Court)
The Mississippi Court of Appeals handed down seven opinions on Tuesday. Four are criminal appeals. The three civil cases involve child visitation modification, a 12(b)(6) motion, and a motion to compel arbitration.
Holifield v. State, 2023-KA-01320-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the trial court did not err in refusing the defendant’s heat-of-passion manslaughter instruction, that the conviction was supported by sufficient evidence, and that the verdict was not against the overwhelming weight of the evidence, and also declining to address the ineffective-assistance-of-appellate-counsel claim on direct appeal. (8-2-0: Lassitter St. Pe’ for the Court; Wilson concurred in part and in the result without writing’ Westbrooks concurred in the result only without writing)
Rodgers v. State, 2024-KA-01116-COA (Criminal – Felony) Affirming conviction of possession of a firearm by a felon, holding that there was sufficient evidence that he possessed a firearm on the date alleged in the indictment. (9-0: Lassitter St. Pe’ for the Court)
Cosby v. State, 2024-KA-00518-COA, consolidated with Cosby v. State, 2024-KA-00522-COA (Criminal – Felony) Affirming two defendants’ convictions of sexual battery of a minor, holding that the trial court did not err by denying their motion for directed verdict or in denying their JNOV, that there was sufficient evidence to support the conviction, that the trial court did not err in failing to conduct a pretrial hearing on a tender-years issue, that the trial court did not err in limiting cross-examination of witnesses, and that the plaintiff’s ineffective-assistance-of-counsel claim lacked merit. (10-0: Weddle for the Court)
Kirkland v. Kirkland, 2024-CA-00801-COA (Civil – Domestic Relations) Affirming the chancellor’s ruling on a visitation modification petition, holding that the chancellor did not abuse her discretion, commit clear error, or manifest error in denying the mother’s petition to modify visitation or in granting the father’s counterclaim for additional visitation. (10-0: Weddle for the Court)
Martin v. Smith, 2024-CA-01027-COA (Civil – Torts) Affirming the trial court’s decision granting the defendant’s 12(b)(6) motion, holding that the plaintiff failed to sufficiently state claims for defamation, slander, malicious interference with employment, or intentional infliction of emotional distress under Mississippi’s pleading standard. (7-2-1: Weddle for the Court; Wilson and McDonald concurred in part and in the result without separate written opinion; Barnes dissented without writing)
Jenkins v. Ford Motor Company, 2024-CA-00994-COA (Civil – Contract) Reversing the trial court’s decision granting a motion to compel arbitration, holding that although the defendant asserted arbitration in its answer waiting nearly one year before filing a motion to compel arbitration while engaging in the litigation process constituted failure to pursue it. (6-4: Lawrence for the Court; Emfinger dissented, joined by Barnes, Wilson, and Lassitter St. Pe’)
Practice Point – Arbitration agreements have made a strong showing on here lately. Beware of recycled briefing on arbitration-related issues.
Butler v. State, 2024-KA-00821-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the trial court did not err in denying the defendant’s imperfect self-defense instruction where the trial court also granted the defendant’s self-defense instruction. (10-0: Westbrooks for the Court)
Other Orders
Green v. Presbyterian Day School, 2023-CA-01278-COA (denying rehearing)
Luster v. State, 2024-CA-00014-COA (denying rehearing)
Brownlee v. State, 2024-CA-00585-COA (denying rehearing)
Teel v. Boyd Biloxi, LLC, 2024-CP-00810-COA (denying rehearing)
The Mississippi Court of Appeals served a seasonally-appropriate portion of twelve opinions on Tuesday with nine other orders on the side. You can read about the lot below.
Cummings v. State, 2024-KA-00909-COA (Criminal – Felony) Affirming conviction of two counts of first-degree murder, holding that the conviction was supported by sufficient evidence, the verdict was not against the overwhelming weight of the evidence, the trial court did not abuse its discretion in the jury instructions given, the trial court did did not abuse its discretion in allowing evidence of other bad acts, the ineffective-assistance-of-counsel claim was without merit, and that the cumulative error doctrine did not apply. (7-3: Weddle for the Court; Wilson dissented, joined by Westbrooks and McDonald)
In the Interest of K.B.: A.B.B. v. E.B.S., 2024-CA-00313-COA (Civil – Custody) Affirming the youth court’s decision terminating parental rights, holding that the natural mother exercised all of the rights that she complained on appeal that the trial court failed to give her including her right to court-appointed counsel. (8-2-0: Emfinger for the Court; Westbrooks and McCarty concurred in part and in the result without writing)
Bivins v. Ellisville State School, 2024-SA-01098-COA (Civil – State Boards & Agencies) Affirming the circuit court’s decision affirming the Mississippi Employee Appeals Board’s decision affirming an employee’s termination, holding that the former employee failed to show that the order was not supported by substantial evidence or was arbitrary and capricious. (10-0: McCarty for the Court)
Dortch v. State, 2024-KA-01102-COA (Criminal – Felony) Affirming conviction of capital murder while engaged in the commission of a robbery after reviewing counsel’s Lindsey brief and independently reviewing the record. (10-0: McCarty for the Court)
Latham v. State, 2024-KA-00719-COA (Criminal – Felony) Affirming conviction of sexual battery after reviewing counsel’s Lindsey brief and independently reviewing the record. (10-0: Lawrence for the Court)
Day v. Day, 2024-CA-00771-COA (Civil – Custody) Affirming the chancery court’s custody modification order, holding that there was evidence to support the chancellor’s finding of a material change in circumstances and awarding the mother custody and visitation rights for the father. (9-0: Lawrence for the Court; Weddle did not participate)
Higdon v. Pinkston, 2023-CP-00685-COA (Civil – Real Property) Affirming the chancellor’s grant of summary judgment in a property-line dispute, holding that the chancellor’s decision where the motion for summary judgment was not opposed by a response or evidence at the hearing. (10-0: Carlton for the Court)
McLaurin v. State, 2024-KA-00138-COA (Criminal – Felony) Affirming conviction of possession of meth but reversing sentence as a nonviolent habitual offender, holding that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming weight of the evidence, that there was no plain error in admission of hearsay testimony from an officer, that the ineffective-assistance-of-counsel claim lacked merit, that the trial court properly excluded proposed hearsay testimony, that the trial court did not err in qualifying the jury venire in the defendant’s absence, that the spousal privilege did not apply to certain testimony, and that matters not raised in the trial court were procedurally barred, but holding that the trial court erred in finding that it lacked sentencing discretion. (6-4-0: Carlton for the Court; Wilson, McDonald, Emfinger, and Weddle concurred in part and in the result without writing)
Bodie v. State, 2024-KA-00634-COA (Criminal – Felony) Affirming conviction of two counts of sexual battery and one count of touching a child for lustful purposes, holding that the defendant’s rights under the Double Jeopardy Clause were not violated. (10-0: Carlton for the Court)
CNRS&Z Inc. v. Bridgecrest Acceptance Corporation, 2024-CA-00365-COA (Civil – Contracts) Affirming the trial court’s decision granting a motion to compel arbitration, holding that the trial court did not err in finding a valid and binding arbitration agreement with one of the defendants and that the “close legal relationship” between that defendant and two others allowed them to enforce the arbitration agreement as well. (5-5: Barnes for the Court; McCarty concurred in part and dissented in part, joined by Westbrooks, McDonald, Lawrence, and Lassitter St. Pe’)
Note – The dissent agreed that the claims against the defendant who signed the arbitration agreement were bound to arbitration, but took issue with binding the claims against the other two defendants:
Estate of Price v. St. Dominic-Jackson Memorial Hospital, 2024-CA-00582-COA (Civil – Med Mal) Affirming the circuit court’s dismissal of a med mal action finding that it was barred by the statute of limitations and that it was an impermissible duplicative action, holding that the plaintiff waived any challenge to the dismissal as an impermissible duplicative action by failing to address it on appeal and that it was therefore unnecessary for the Court to address the statute of limitations issue. (6-2-0: Wilson for the Court; McDonald concurred in result only without writing; Lassitter St. Pe’ specially concurred, joined by Westbrooks; Barnes and Weddle did not participate.)
Avery v. State, 2024-CP-01044-COA (Civil – PCR) Reversing summary dismissal of a PCR motion, holding that the motion was sufficient to survive summary dismissal and required the State to answer to motion and provide an explanation for its calculate of the parole eligibility date. (8-2: Wilson for the Court; Lawrence dissented, joined by Weddle)
Other Orders
In the Interest of J.S.: P.S. v. Pearl River County Dept. of CPS, 2023-CA-00932-COA (denying rehearing)
Swims v. State, 2023-KA-01244-COA (denying rehearing)
Jackson v. State, 2023-KA-01280-COA (denying rehearing)
Hinds v. PERS, 2023-SA-01400-COA (denying rehearing)
Patterson v. State, 2024-KA-00268-COA (denying rehearing)
Brown v. State, 2024-CA-00307-COA (denying hearing)
Varnado v. State, 2024-KA-00338-COA (denying rehearing)
Polk v. State, 2024-KA-00591-COA (denying rehearing)
Wright v. State, 2025-TS-00986-COA (dismissing appeal as untimely)
The Mississippi Court of Appeals handed down ten opinions yesterday. The Court covered a lot of ground including wills,the MTCA, felony convictions, an arbitration award, and arbitration agreement enforceability.
Pittman v. Charles Schwab & Co., Inc., 2024-CA-00619-COA (Civil – Torts) Reversing the circuit court’s grant of a motion to compel arbitration, holding that the circuit court erred in finding that the plaintiff was a third-party beneficiary of an arbitration agreement. (9-1: Weddle for the Court; Wilson dissented)
Ward v. State, 2024-KA-00341-COA (Criminal – Felony) Affirming in part and reversing in part after a judgment of convictions of voyeurism and first-degree murder, holding that trial counsel was not ineffective for not requesting a severance or for failing to object to the State’s peremptory strikes and that the evidence was sufficient to support each of the convictions, but holding that the circuit court erred in refusing a heat-of-passion manslaughter instruction. (7-3: Emfinger for the Court; Wilson and Westbrooks concurred in part and dissented in part without writing; Lawrence concurred in part and dissented in part, joined by Carlton and Westbrooks, joined in part by Wilson)
Roberts v. State, 2024-CA-00988-COA (Civil – PCR) Reversing the trial court’s denial of a PCR motion, holding that because only one petition for revocation of Roberts’s PRS had been filed, the circuit court did not have the authority to impose her full sentence under section 47-7-37. (6-4*-1: McDonald for the Court; Emfinger specially concurred, joined by Barnes, Weddle, and Lassitter St. Pe’, joined in part by Lawrence and McCarty; Wilson concurred in result only without writing; Lawrence dissented, joined in part by Emfinger and Weddle)
Fields v. State, 2024-KA-01204-COA (Criminal – Felony) Affirming conviction of twenty-five counts of child exploitation, holding searches of the defendants laptops in Harrison County pursuant to a George County warrant were proper, and holding that the defendant cannot complain on appeal about the absence of a jury instruction his counsel strategically withdrew. (10-0: McDonald for the Court)
Williams v. State, 2024-KA-00257-COA (Criminal – Felony) Affirming conviction of manslaughter, holding that any error in limiting evidence related to the victim’s character did not warrant reversal in light of other evidence of guilt. (8-2-0: Westbrooks for the Court; Wilson and Emfinger concur in result only without writing)
Jones v. Madison County Nursing Home, 2024-CA-00561-COA (Civil – Personal Injury) Affirming the dismissal of a suit against a nursing home, holding that it was time-barred because it was filed outside of the MTCA’s one-year statute of limitations, holding that the County was not estopped from asserting the statute of limitations defense after the Board of Supervisors had responded to a pre-suit notice letter stating that the county was not a proper party. (9-1-0: Wilson concurred in part and in the result without writing)
Chavers v. State, 2024-KA-00551-COA (Criminal – Felony) Affirming conviction of two counts of manslaughter and one count of aggravated assault after driving a UTV into a group of people leaving a party, holding that the trial court did not abuse its discretion in giving a voluntary intoxication instruction, that the circuit court’s error in giving the jury the wrong set of jury instructions that error was harmless because it was corrected during deliberations, and that the verdict was supported by sufficient evidence. (9-0: Wilson for the Court; Lawrence did not participate)
Estate of Fleishhacker: Ward v. Edwards, 2024-CA-00418-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision denying in a will contest, holding that the chancellor did not err in denying a request to probate a lost holographic will and finding an earlier will valid. (7-2-0: Wilson concurred in part and in the result without writing; McDonald concurred in result only without writing; Weddle did not participate)
Practice Point – Though it did not affect the holding in the case, the Court held that the trial court erred in finding that one witness’s testimony was insufficient under section 91-7-10 because she was the primary beneficiary under the purported will. But the Court of Appeals noted that neither the chancellor nor the parties accounted for the repeal of the Dead Man’s Statute.
Gillespie Funeral Home, LLC v. Magnolia Guaranty Life Insurance Company, 2024-CA-00427-COA (Civil – Contract) Affirming the chancellor’s decision after an arbitration award, holding that the chancellor did not err in denying a motion to set aside an arbitration award or in entering a final judgment confirming the award. (9-1-0: Barnes for the Court; McDonald concurred in the result only without writing)
Sanford v. State, 2024-KA-00683-COA (Criminal – Felony) Affirming a conviction of gratification of lust, statutory rape, and sexual battery, holding that the argument that the circuit judge should have recused himself after he was contacted by the victim’s father prior to trial was waived and without merit where the judge said he explained to the father that the could not talk about matters that could come before the court. (9-1-0: Barnes for the Court; Westbrooks concurred in result only without writing)
Other Orders
Younger v. Southern, 2022-CA-01228-COA (denying rehearing)
Mangum v. State, 2023-KA-01198-COA (denying rehearing)
Morsi v. JB Hunt Corp., 2024-WC-00399-COA (denying rehearing)
The Mississippi Supreme Court handed down one opinion today addressing the issue of whether a company president’s signature on a commercial lease bound him personally to arbitration under the lease.
R.K. Metals, LLC v. JLA Jome Fabrics, Inc., 2023-CA-00620-SCT (Civil – Contract) Affirming the trial court’s finding that a company president’s signature in his representative capacity on a commercial lease was binding on him personally, holding that the terms of the lease in question specifically named the president as personal guarantor to the lease and, accordingly, that the president could be compelled to participate in arbitration under the terms of the lease and the doctrines of equitable estoppel and agency. (9-0)
Note – Here is the operative language from the lease agreement:
Other Orders
In Re K.H.: Berry v. Lincoln County Youth Court of Mississippi, 2024-IA-01299-SCT (granting petition for interlocutory appeal by permission or, in the alternative, writ of mandamus and rendering an order for the respondent to provide requested copies directly to the petitioner pursuant to and consistent with Mississippi Code section 43-21-261(3))
The Mississippi Supreme Court handed down three opinions on Thursday. There is an appeal of a life imprisonment sentence, an appeal of a sanction in a workers’ comp case, and an appeal of an order compelling arbitration in a construction contract dispute.
Harris v. State, 2022-KA-01113-SCT (Criminal – Felony) Affirming resentencing to life for depraved heart murder, holding that the sentence to life imprisonment was not mandatory but within the trial court’s discretion under the sentencing guidelines. (9-0)
Howard Industries, Inc. v. Hayes, 2021-CT-00694-SCT (Civil – Workers’ Comp) Affirming sanction against the employer’s attorney, holding that there was substantial evidence to support the Commission’s award of sanctions related to the presentation of an expert report that was prepared based on representations the attorney made to the expert. (5-4: Beam dissented, joined by Coleman, Maxwell, and Chamberlin)
McInnis Electric Company v. Brasfield & Gorrie, LLC, 2021-CA-01115-SCT (Civil – Contract) Affirming order compelling arbitration in a breach of contract suit filed by a subcontractor against the prime contractor, holding that the parties entered into an arbitration agreement and that the subcontractor’s claims were within the arbitration agreement. (6-2: Kitchens dissented, joined by King; Randolph did not participate)
NOTE – The underlying dispute between the subcontractor and prime contractor is intertwined with the arrival of COVID-19 in Mississippi. Kitchens’s dissent asserted that the ability to perform a contract during the pandemic was not within the contemplated scope of the arbitration agreement that did not contain a force majeure clause.
Other Orders
Williams v. Mississippi District Council for Assemblies of God, 2021-CA-01007-SCT (rehearing denied)
Everett v. State, 2021-CT-01415-SCT (denying cert)
In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-00001-SCT (directing the disbursement of $137,218.03 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)
The Mississippi Supreme Court handed down two opinions today, but do not be deceived by that stat. One of the opinions is a 100+ page decision in a death-penalty PCR case. The other is an appeal of denial a motion to compel arbitration. There is also a linked attorney-discipline case.
Galloway v. State, 2013-DR-01796-SCT (Criminal – Death Penalty – Post Conviction) Denying motion for leave to proceed in the trial court with PCR petition, holding that (1) the petitioner failed to overcome the presumption that what trial counsel did and did not present as mitigating evidence such as the petitioner’s “true-life story” and mental health issues during the penalty phase might be considered sound trial strategy instead of ineffective assistance; (2) there was no merit to the petitioner’s claim of ineffective assistance during jury selection where counsel used no Batson challenges and an all-white jury was seated or that counsel was otherwise ineffective in voir dire; (3) there was no merit to the petitioner’s claim of ineffective assistance during guilt-innocence phase for not investigating or challenging lack of investigating/challenging the medical examiner’s testimony, in limiting the review of Defense expert’s forensic expert or failing to consult with/prepare him, in failing to assert a Miss. R. Evid. 702 pretrial challenge to the medical examiner’s testimony, or failing to object to the medical examiner’s testimony as outside the scope of the disclosed testimony; (4) there was no merit to the claim that the State corrupted the truth-seeking function of the trial by suppressing material impeachment evidence or presenting false and misleading evidence; (5) the death verdict was not unconstitutionally coerced from a holdout juror; (6) a juror’s exposure to medical coverage showing the victim violated constitutional rights; (7) a juror’s false statement during voir dire that he had not previously served on a criminal jury did not give rise to an inference of prejudice; (8) the petitioner did not show that he was prejudiced when he was placed the defendant in an electronic restraint; (9) death by lethal injection would not violate the petitioner’s rights under the Eighth Amendment or Fourteenth Amendment; and (10) there was no aggregation of errors mandating a reversal. (9-0)
PriorityOne Bank v. Folkes, 2022-CA-00429-SCT (Civil – Contract) Affirming denial of motion to compel arbitration, holding that the bank waived the right to arbitration by substantially participating in the litigation and did not file a motion to compel arbitration until after an amended complaint was filed. (7-2: Griffis dissented, joined by Beam)
PRACTICE POINT – The Supreme Court’s decision appears to hinge on the fact that the amended complained did not add a new cause of action (which was in dispute). This was enough to affirm the denial of the motion to compel arbitration, but the Supreme Court made it clear the plaintiff was bound by her representation that no new claim was asserted:
Other Orders
Jarvis v. State, 2021-M-01196 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings could result in sanctions)
The Mississippi Bar v. Hessler, 2023-BD-00057-SCT (suspending an attorney from the practice of law for one year and one day, with the suspension deferred retroactively to June 22, 2022)
Wakefield v. State, 2021-CT-00187-SCT (denying cert)
Buchanan v. Hope Federal Credit Union, 2021-CT-00218-SCT (denying cert)
In Re: Resignation of Emily Bonds Davey f/k/a Emily Sides Bonds From The Practice of Law in Mississippi, 2023-BD-00963 (granting leave under Rule 11(b) of the Rules of Discipline for the Mississippi State Bar to resign in good standing from the practice of law in Mississippi)
I am circling back to pick up the rest of the hand downs that I missed last week. The Mississippi Supreme Court handed down six opinions last Thursday with a couple of reversals. There were two skirmishes in med mal cases, one involved an arbitration agreement and the other the substitution of the administrator of an estate. There is a UM case about the right to UM benefits after cutting off the carrier’s subrogation rights. There is also a sixteenth section land case and what should have been an MTCA case. The Supreme Court also denied a petition for reinstatement to the practice of law.
Mississippi Farm Bureau Cas. Ins. Co. v. Peteet, 2021-IA-01420-SCT (Civil – Insurance) Reversing the denial of a motion to dismiss by a UM carrier, holding that the insured’s execution of a settlement agreement with the at-fault driver unlawfully cut off the UM carrier’s right of subrogation and the UM carrier therefore had no duty to pay the UM claim. (9-0)
Sill v. State, 2021-KA-00317-SCT (Criminal – Felony) Affirming conviction of possession of meth, holding that the trial court did not err in denying the defendant’s motion to suppress evidence found in his car because the defendant did not prove that he had a legitimate expectation of privacy in a stolen vehicle, that the State met its burden to prove construction possession, and that the jury could reasonable infer that the untested substance was of the same substance as what was tested. (9-0)
Belhaven Senior Care, LLC v. Smith, 2022-CA-00050-SCT (Civil – Contract) Affirming denial of a motion to compel arbitration, holding that the facility failed to prove that the signatory of the arbitration agreement was the resident’s healthcare surrogate, that the plaintiff was not barred by direct-benefit estoppel from contesting the validity of the arbitration agreement, and that the decdent was not a third-party beneficiary of the agreement. (9-0)
North Bolivar Consolidated Sch. Dist. v. Jones, 2021-IA-01235-SCT (Civil – Real Property) Reversing the denial of the school district’s motion for summary judgment, holding that the school district’s past acceptance of late rent payments for sixteenth section land were not authorized and could not form the basis of estoppel that would prevent the school district from assessing statutory late-payment penalties. (9-0)
Morton v. City of Clarksdale, 2022-CA-00216-SCT (Civil – Torts) Affirming the dismissal of claims that an arrest violated constitutional rights, holding that most of the plaintiff’s claims fell under the MTCA and were barred by the MTCA’s one-year statute of limitations, that the constitutional claims were barred by the three-year statute of limitations, and that the malicious prosecution claim was barred by the one-year statute of limitations for such claims. (9-0)
Otuseso v. Estate of Mason, 2021-IA-01099-SCT (Civil – Wills, Trusts and Estates) Affirming the chancellor’s decision removing the administratrix of an estate who had filed a wrongful death suit against a doctor on behalf of the estate and substituting two heirs-at-law as coadminstrators, holding that the doctor’s motion to intervene in the chancery court proceedings was moot since the chancellor had properly removed the unqualified administrator and appointed successor administrators. (9-0)
Other Orders
Stewart v. The Mississippi Bar, 2022-BR-00382-SCT (denying fourth petition for reinstatement to the practice of law)
Virden v. Campbell Delong, LLC, 2021-CT-00478-SCT (granting cert) I put this on the “cert watch” list when the COA opinion was handed down. It is a lawyer fight over money with a 5-5 COA decision that left the trial court’s ruling in place. (My summary of the COA decision is here.)
The Mississippi Court of Appeals handed down seven opinions today. There are several criminal cases, a reversal of summary judgment in a slip and fall case, an arbitration denial, and several PCR cases.
Jones v. State, 2021-KA-01263-COA (Criminal – Felony) Affirming conviction of capital murder, holding the trial court did not err in denying a mistrial after a prospective juror mentioned the defendant’s past wrongdoing, that the verdict was based on sufficient evidence and not against the weight of the evidence, and that the ineffective assistance of counsel claim could not be appropriately addressed on direct appeal and denying the issue without prejudice. (10-0)
Creel v. State, 2021-CP-00977-COA (Civil – PCR) Affirming dismissal of a motion for PCR, holding that the plaintiff was properly sentenced under the statute in place at the time of his offenses and that his guilty pleas were entered knowingly, intelligently, and voluntarily. (9-0: Judge Emfinger did not participate)
Smith v. State, 2021-CA-01259-COA (Civil – PCR) Affirming the denial of a motion for PCR without evidentiary hearing, holding that the plaintiff’s guilty pleas were knowingly, intelligently, and voluntarily given, and that the trial court did not err in ruling without an evidentiary hearing. (9-0: Judge Smith did not participate)
Anderson v. State, 2021-KA-01340-COA (Criminal – Felony) Affirming conviction of burglary, holding that the trial court did not commit reversible error by admitting evidence of crimes in other counties under Rule 404(b) and that there was no merit to the ineffective assistance of counsel claims based on lack of objections to hearsay. (9-1-0: Judge McCarty concurred in part and in the result without separate written opinion)
Hathorne v. State, 2021-CA-00306-COA (Civil – PCR) Affirming denial of a motion for PCR, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred. (2-4-4: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Lawrence and Judge Smith concurred in the result only; Judge McCarty dissented, joined by Judge Carlton, Judge Westbrooks, and Judge McDonald)
Brooks v. Jeffreys, 2021-CA-01113-COA (Civil – Personal Injury) Reversing summary judgment in favor of a defendant in a slip and fall case, holding that there were genuine issues of material fact as to whether the cleaning company breached the duty of care where the plaintiff slipped and fell on the floor of her residence that was actively being mopped when she slipped. (9-1: Judge Greenlee concurred in part and dissented in part without separate written opinion)
NOTE – Because the plaintiff slipped and fell in her own residence that was being cleaned by the defendant, the Court of Appeals analyzed this is a general negligence action and not a premises liability case.
Liberty National Life Insurance Company v. Hancock, 2021-CA-00605-COA (Civil – Contract) Affirming denial of a motion to compel arbitration, holding that where a life insurance policy was voluntarily entered into, cancelled, and then reinstated via forgery of the insured’s signature, the arbitration agreement in the policy was not enforceable. (6-4: Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Wilson, and Judge Greenlee)
Other Orders
$153,340.00 v. State, 2020-CA-01409-COA (denying rehearing)
The Mississippi Court of Appeals returned from Thanksgiving break with five opinions. Two cases are medical malpractice cases (one an appeal of summary judgment for lack of expert testimony and the other an appeal of a denied motion to compel arbitration). Two are criminal cases, and the other case is a custody case with cross motions for modification and a motion for contempt.
Davis v. State, 2021-KA-00908-COA (Criminal – Felony) Affirming conviction of first-degree, deliberate design murder, holding that the trial court did not abuse its discretion in limiting the defense’s cross-examination of a detective to exclude testimony about other investigations and noting that the Confrontation Clause does not open the door to irrelevant testimony on cross-examination. (10-0)
Mixon v. Berry, 2021-CA-00494-COA (Civil – Medical Malpractice) Affirming summary judgment in favor of a doctor in a med mal case for lack of medical expert testimony, holding that summary judgment was proper because the plaintiff failed to produce sworn expert testimony to establish the applicable standard of care, breach, and proximate cause, and that the trial court did not err in not granting a 56(f) continuance that was not requested or in denying the motion for reconsideration. (10-0)
Practice Point – Here is some useful black-letter law from this opinion:
Turnage v. State, 2021-KA-01229-COA (Criminal – Felony) Affirming conviction of a high school teacher of two counts of sexual battery of a student, holding that there were no issues warranting reversal after reviewing appellate counsel’s Lindsey brief and independently reviewing the record. (10-0)
Lamy v. Lamy, 2021-CA-00770-COA (Civil – Custody) Affirming in part and reversing in part the chancery court’s rulings on competing complaints for modification and a motion for contempt, holding that the chancellor did not err in admitting evidence used by the GAL and attached to her report, did not err in classifying one agreed custody order as temporary but did err by interpreting that order as awarding sole physical custody to the mother, and did not err in not finding the mother in contempt. (5-1-4: Judge McDonald concurred in part and in the result without separate written opinion; Chief Judge Barnes, Judge Westbrooks, and Judge McCarty concurred in part and in dissent in part without separate written opinion; Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Westbrooks, and Judge McCarty, and joined in part by Judge McDonald.)
Note – In response to the motion for contempt, the mother pleaded COVID in her explanation of why she kept the children during the father’s period of custody. The dissent didn’t buy the excuse:
Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (Civil – Contract) Affirming denial of a motion to compel arbitration in a wrongful death case, holding that the evidence in the record supported the trial court’s finding that the resident lacked the mental capacity to sign the nursing home’s arbitration agreement on the date of admission, that the resident’s daughter did not have authority to sign as his agent, and that the proof was sufficiently clear to affirm the trial court’s denial of the facility’s request for arbitration-related discovery. (7-3: Judge Carlton dissented, joined by Judge Wilson and Judge Lawrence.)
Other Orders
Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (denying rehearing)
Mississippi Appeals Blog 