Tag: Attorney's Fees

Mississippi Court of Appeals Decisions of January 13, 2026

The Mississippi Court of Appeals handed down six opinions today. There is a couple of domestic relations cases, one of which turns on an appellate jurisdiction issue. Then there are two direct criminal appeals, an MTCA case, and attorney’s fees case.

In Re Guardianship of K.G.W.: Garland v. Bunch, 2024-CA-01325-COA (Civil – Domestic Relations)
Dismissing appeal stemming from a guardianship, holding that the Court lacked jurisdiction on the appeal taken under section 11-43-53 because there had been no trial of a habeas corpus.
(10-0: Lassitter St. Pe’ for the Court)

O’Quin v. Davaul, 2024-CP-01327-COA (Civil – State Boards & Agencies)
Affirming dismissal of a complaint against the county tax assessor and granting judgment on the pleadings for failing to comply with MTCA requirements, holding that the pro se appellant’s arguments were without merit and were procedurally barred for failing to comply with the rules of appellate procedure.
(10-0: Lassitter St. Pe’ for the Court)

Fraser v. State, 2023-KA-01129-COA (Criminal – Felony)
Affirming conviction of culpable negligence manslaughter, holding that even if admission of emails and photographs from the victim’s phone showing past abuse was error it was harmless, that the trial court did not err in admitting an email from the defendant into evidence or in limiting the defendant’s expert witness’s testimony, and that the evidence was sufficient to support the conviction.
(8-2-0: Emfinger for the Court; Westbrooks and McDonald concurred in part and in the result without writing)

Elkins v. State, 2024-KA-00597-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that there were no issues warranting reversal after reviewing counsel’s Lindsey brief and the record.
(10-0: Emfinger for the Court)

Covington County Bank v. Scott Tractor & Equipment Company, 2024-CA-01071-COA (Civil – Contract)
Reversing the circuit court’s denial of attorney’s fees, holding that the trial court abused its discretion in denying the request for attorney’s fees that was sought after the defendant paid the debt with accrued interest on the same day the creditor filed a motion for entry of default.
(7-3: Westbrooks for the Court; Emfinger dissented, joined by Wilson and Lawrence)

Aultman v. Aultman, 2024-CA-00746-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor erred with respect to the valuation of a home and remanding to reconsider valuation and equitable distribution but holding that the chancellor did not err in valuing an ESIP, retirement, and PERS accounts, did not err in awarding attorney’s fees for successful contempt proceedings.
(8-1-0: Carlton for the Court: Wilson concurred in part and in the result without writing; Lassitter St. Pe’ did not participate)

Other Orders

  • Ryals v. State, 2023-KA-01192-COA (ordering the circuit clerk to supplement the appellate record with the transcript of the jury instruction conference by a date certain and further ordering that if it is not received by that date that the court reporter shall appear before the Court at a show cause hearing)

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Mississippi Supreme Court Decisions of December 11, 2025

The Mississippi Supreme Court handed down two opinions today. One is a voluntary dismissal versus summary judgment dispute and the other addressed where venue was waived by removal to federal court once the case was remanded. There are also two cert grants among today’s orders.

Busby v. The Lamar Company, LLC, 2023-CA-00892-SCT (Civil – Torts)
Affirming the trial court’s decision to grant the plaintiff’s motion for voluntary dismissal and deny the defendant’s motion for summary judgment and for attorney’s fees, explaining that the only difference in the outcome is the award of attorney’s fees which is within the trial court’s discretion.
(8-0: Maxwell for the Court; Branning did not participate)

Benchmark Insurance Company v. Harris, 2024-IA-00813-SCT (Civil – Insurance)
Reversing the trial court’s decision denying the defendant’s motion to transfer venue, holding that the defendant did not waive its objection to venue by first removing the case to federal court (to a district that encompassed both the improper and proper state court venues) prior to filing an answer in state court and then filing a motion to transfer venue on remand.
(9-0: Maxwell for the Court)

Other Orders

  • Elmore v. Elmore, 2023-CT-00875-SCT (granting cert)
  • McFall v. Osborne, 2023-CT-01234-SCT (denying cert)
  • Mortera v. Kona Villa Owners Association, Inc., 2023-CT-01297-SCT (granting cert)
  • Okorie v. Citizens Bank, 2024-CT-00462-SCT (denying cert)

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Mississippi Court of Appeals Decisions of May 13 and May 20, 2025

The Mississippi Court of Appeals handed down six opinions last week and a hearty eleven today. There are some interesting cases in the mix and a summary of each is below.

May 13, 2025

May v. May, 2023-CA-01022-COA, consolidated with 2023-M-01401-COA (Civil – Domestic Relations)
Vacating the chancellor’s order of contempt for failure to pay child support but affirming his denial of the motion to recuse, holding that the chancery court did not have personal jurisdiction for purposes of a contempt ruling for want of service under Rule 81, but that although the chancellor erred in finding that the motion for recusal was untimely it was nevertheless within his discretion to deny it.
(9-1-0: Lawrence concurred in result only without writing)

Fortner v. IMS Engineers, Inc., 2023-CA-01170-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a company that had been engaged to oversee and manage road improvement projects until about ten months before a fatal accident occurred, holding that there was no evidence that the company owed a duty of care once its involvement ended and the City took over the management role.
(8-1-0: Wilson concurred in part and in the result without writing; Carlton did not participate)

Horne v. Dolgencorp LLC, 2024-CA-00376-COA (Civil – Personal Injury)
Affirming summary judgment in a trip-and-fall case after a customer tripped on merchandise in an aisle, holding that there was no evidence that the store had actual or constructive knowledge of the presence of the dangerous condition.
(8-2: Westbrooks and McDonald dissented without writing)

Shipley v. Shipley, 2023-CA-00814-COA (Civil – Custody)
Affirming judgment modifying the custody arrangement by giving the mother sole physical and legal custody, holding that the chancellor did not err in modifying physical and legal custody based the mother’s relocation to Oregon, that the chancellor’s did not err by failing to consider the totality of the circumstances, that the chancellor did not give undue weight to one Albright factor, and that the argument that the chancellor erred by not sua sponte appointing a GAL to investigate allegations of abuse was procedurally barred, and declining to address child support in after ruling that the chancellor did not err in its custody decision.
(7-3: Wilson dissented, joined by Carlton and Emfinger)

Magyar v. Shiers, 2023-CA-00682-COA (Torts – Other)
Affirming bench trial decision finding the defendant liable for malicious prosecution and awarding compensatory and punitive damages, holding that there was evidence to support each element of malicious prosecution where the defendant had filed charging affidavits against the plaintiffs alleging that they were intentionally damaging his property by allowing sewage from a leaking septic system to run into his property but the justice court dismissed the charges for lack of evidence.
(10-0)

Mueller Industries, Inc. v. Waits, 2023-WC-00494-COA (Civil – Workers’ Comp)
Reversing the Commission’s decision ordering a lump sum payment, holding that the information in the record did not permit the Court to review the Commission’s computations of TPD and remanding for the Commission to determine whether TPD was properly calculated and credited, determine whether the claimant received more than the maximum weekly benefit and whether the Employer/Carrier should receive a credit for overpayment, and ensure that the Employer/Carrier was not charged with penalties or interest after the date the Commission found that no further benefits were owed.
(8-2: Westbrooks concurred in part and dissented in part, joined by McDonald and joined in part by McCarty)

Other Orders

  • Mount v. State, 2023-KA-00807-COA (denying rehearing)
  • Begnaud v. Begnaud, 2023-CA-00822-COA (denying rehearing)
  • In the Matter of Estate of Tate: Garfield v. Tate, 2023-CA-01262-COA (denying rehearing)

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May 20, 2025

Mask v. Baggett, 2024-CA-00181-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions denying a motion for contempt and attorney’s fees in a divorce action for lack of proof, holding that the chancellor’s finding that neither party had sufficient proof to support motions for contempt and attorney’s fees was supported by the record and lack of record, that the appellant failed to show that the chancellor abused his discretion by denying the Rule 59 motion due to clear error or manifest injustice.
(10-0)

Bickes v. Swain, 2024-CA-00187-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the mother of the bride and the venue in a premises liability suit filed by a wedding guest who hurt his leg stepping off a porch at the venue, holding that the circuit court did not err in granting summary judgment without conducting a hearing that had been set and that summary judgment was proper because there was no evidence of a dangerous condition that could support liability regardless of whether the plaintiff was classified as a licensee or an invitee.
(7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing; Weddle did not participate)

Page v. State, 2024-CP-00613-COA (Civil – Other)
Affirming the circuit court’s rejection of the plaintiff’s motion for discovery in the circuit court in which he was convicted of attacking a woman with a knife two decades ago, holding that the circuit court did not err in rejecting the claim as a standalone claim separate from a PCR petition though the circuit court incorrectly “denied” the motion instead of “dismissing” the motion for lack of personal jurisdiction.
(10-0)

Jones v. State, 2023-KA-01157-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the circuit court did not commit plain error in excluding evidence of a witness’s prior convictions because the weight of evidence of guilt was overwhelming, that the Miranda violation arguments were procedurally barred and did not merit reversal under the plain error doctrine.
(9-1-0: Wilson concurred in part and in the result without writing)

Pickett v. State, 2024-KA-00511-COA (Criminal – Felony)
Affirming conviction of one count of burglary of a dwelling with intent to commit a larceny, holding that the issue of the circuit court’s denial of the motions for directed verdict was procedurally barred and lacked merit because the evidence was sufficient and the verdict not against the overwhelming weight of the evidence and the circuit court did not err in denying the motions without making specific findings of fact.
(10-0)

Mortera v. Kona Villa Owners Association, Inc., 2023-CA-01297-COA (Civil – Property Damage)
Reversing summary judgment that was entered in favor of an HOA that declined to pursue a property damage claim on behalf of a condo unit owner, holding that based on the bylaws and insurance policy terms there was a genuine fact dispute over the HOA’s status of a fiduciary.
(9-0)

Parrott v. Frierson, 2023-SA-01245-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s dismissal of taxpayers’ petition appealing the Board of Tax Appeals’ order, holding that there was substantial evidence to support the chancellor’s finding that “yard sales” where the taxpayers purchased storage units and sold the contents were not isolated, casual, or occasional sales but sales made in the course of business and subject to sales tax, that the chancellor did not err in finding that the MDOR’s income tax assessment was prima facie correct, that the taxpayers did not overcome the presumption of correctness, and that the chancellor properly affirmed assessment of penalties and interest.
(10-0)

Forrest County General Hospital v. Knight, 2023-WC-01277-COA (Civil – Workers’ Comp)
Affirming the Commission’s order that affirmed the AJ’s order that the claimant suffered an 80% industrial loss of use of the right leg and reducing it to 60% due to apportionment but reversed the AJ’s finding of no loss of wage-earning capacity and awarded 15% LWEC for the low back injury, holding that under the deferential standard of review there was evidence to support the Commission’s decision.
(10-0)

Roach v. Roach, 2024-CA-00236-COA (Civil – Domestic Relations)
Affirming the chancery court’s denial of the ex-wife’s Rule 60(b) motion after the ex-husband was granted a divorce on the grounds of habitual cruel and inhumane treatment, holding that the chancery court did not err in finding that service of process by certified mail was proper and that the ex-wife failed to show exceptional circumstances related to her claim that her prior attorney was ineffective warranting relief under Rule 60(b).
(10-0)

Allen & Smith Insurance Agency, Inc. v. Merrill, 2023-CA-00468-COA (Civil – Contract)
Affirming summary judgment granted in favor of a former employee in a breach of contract claim alleging violations of a non-compete agreement, holding that the court had appellate jurisdiction even though the judgment did not include the language “no just reason for delay” and that the circuit court did not err in finding certain provisions ambiguous and striking them from the agreement.
(5-5: Carlton and Emfinger concurred in part and dissented in part; Wilson dissented, joined by Barnes, and McCarty and joined in party by Carlton and Emfinger)

NOTE – I hope this one goes up on cert. My impression is that the holding of the principal opinion would relax the Rule 54(b) standard as it has been enforced. In the meantime, I would not stop putting all of the Rule 54(b) magic language in your judgments.

Strong v. Acara Solutions, Inc., 2024-CA-00455-COA (Civil – Personal Injury)
Reversing summary judgment in favor of the defendant based on judicial estoppel after the plaintiff failed to disclose this personal injury claim in her bankruptcy proceedings, holding that the “acceptance” element of judicial estoppel was not met where the bankruptcy as dismissed without a discharge.
(8-2: Emfinger dissented, joined by Wilson)

Other Orders

  • Culbertson v. State, 2023-KA-00588-COA (denying rehearing)
  • Boone v. State, 2023-KA-00684-COA (denying rehearing)
  • Gibson v. State, 2023-KA-00704-COA (denying rehearing)
  • Grimes v. State, 2023-KA-01254-COA (denying rehearing)
  • Burnette v. State, 2023-CP-01330-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of March 25, 2025

The Mississippi Court of Appeals handed down eight opinions today. One opinion is an appeal from a hybrid MTCA/common law med mal trial that cites a law journal article I wrote several years ago on an unresolved procedural conundrum. There is also a premises liability summary judgment case, a breach of contract/attorney’s fees case, three direct criminal appeals, and two PCR cases.

Brown v. State, 2023-CA-00921-COA (Civil – PCR)
Affirming denial of PCR, holding that the trial court did not err in summarily dismissing the PCR petition as time-barred.
(10-0)

Foote v. Memorial Hospital at Gulfport, 2023-CA-00504-COA (Civil – Med Mal)
Affirming the circuit court’s judgment in a med mal action against a hospital (a public entity) and a surgeon and the surgeon’s clinic (private entities) after a single, bifurcated bench and jury trial in which the trial court dismissed the claims against the hospital, holding that if the trial court relied on counsel’s closing statements as evidence it was error but harmless because there was sufficient evidence on the point, that the trial court did not err in finding that the plaintiff failed to present a prima facie case that the surgeon proximately caused or contributed to the injuries, and that the plaintiff failed to object to the jury’s involvement in the MTCA claim so the trial court did not err in partially bifurcating the trial where the jury decided the claims against the private defendants and gave an advisory verdict as to the public defendant, and that the trial court did not err in allowing the jury to allocate fault to the public defendant and the finding that the allocation was not supported by substantial evidence.
(7-2-1: Wilson and Emfinger concurred in part and in the result without writing, Lawrence dissented)

NOTE – I was excited to see one of my law review articles cited in this opinion. (If you are so inclined, you can read my article here.) There is no clear guidance from the rules or case law as to how trials should proceed when there a public defendant (entitled to a bench trial under the MTCA) and private defendant (entitled to a jury trial under Mississippi’s constitution, et al). I advocated for a specific procedure in the article that was cited in today’s opinion. In today’s case, the public defendant advocated for the procedure I proposed and the plaintiff argued for a different approach that involved the jury rendering an advisory verdict as to the public defendant. The trial court adopted the plaintiff’s approach. The plaintiff complained about the procedure on appeal, but the Court of Appeals held he could not argue that the trial court erred in following his proposal. Here is the Court of Appeals’ recapitulation of the argument following my proposal:

In 2016, the Rules Committee on Civil Procedure solicited input for a “Mississippi Rules of Civil Procedure Revision Project.” I submitted a proposed amendment to Rule 38 along with a copy of my article:

I never did hear anything back.

Blumer v. Majestic Homes, LLC, 2024-CA-00163-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s order granting summary judgment in favor of a homeowner against a home builder awarding liquidated damages, attoyne’s fees, and expenses, holding that the trial court did not err entering a corrected order granting relief under Rule 60(b) since there had been no judgment expressly adjudicating the remaining claims and that the trial court did not err in dismissing the claims against the home builder in his individual capacity, but that the trial court did err in reducing the award of attorney’s fees.
(9-0: Emfinger did not participate)

Dewberry v. State, 2023-KA-01135-COA (Criminal – Felony)
Affirming conviction of one count of sexual battery, one count of fondling, and one count of child exploitation, holding that the trial court did not err in seating jurors after a Batson challenge and that a jury instruction did not constitute a constructive substantive amendment of a count in the indictment under the plain-error doctrine.
(10-0)

Rodriguez v. Diamondhead Country Club, 2024-CA-00238-COA (Civil – Torts)
Affirming summary judgment in favor of the defendant in a premises liability case, holding that the trial court did not err in finding that a one-half-inch height differential between sidewalk slabs was not a dangerous or unreasonably hazardous condition or in finding that there was no evidence to support a negligence per se claim under the ADA where the plaintiff was not disabled.
(10-0)

Thomas v. State, 2023-KA-00512-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not err in admitting a Facebook post, that the trial court did not err denying a directed verdict under Weathersby, that the conviction was support by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err in denying a motion to suppress the defendant’s statements to law enforcement, that the trial court did not err in admitting autopsy photos, and that the cumulative error doctrine did not apply.
(8-2-0: Emfinger concurred in part and in the result without writing; McDonald concurred in result only without writing)

Rasberry v. State, 2023-KA-01161-COA (Criminal – Felony)
Affirming conviction of failing to register as a sex offender, holding that the lack of specificity in the indictment was at most harmless error, that the trial court did not err by granting an unopposed motion to amend the indictment, and that trial counsel was not ineffective.
(10-0)

Deer v. State, 2024-CP-00019-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the trial court properly dismissed the motion pursuant to the UPCCRA’s three-year statute of limitations.
(9-0: Emfinger did not participate)

Other Orders

  • None

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Mississippi Court of Appeals Decisions of October 8, 2024

The Mississippi Court of Appeals handed down eight opinions today. There are four direct criminal appeals, a workers’ comp case, a civil asset forfeiture case, a real property case regarding a short-term rental, and an attorney fee claim against an estate.

Body v. State, 2023-KA-00495-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the trial court did not abuse its discretion refusing the defendant’s alibi instructions where the “alibi defense was nothing more than attempt to cloak his simple denial of the crime charged.”
(8-1-0: Wilson concurred in part and in the result without writing)

Lepard v. State, 2022-KA-01159-COA (Criminal – Felony)
Affirming conviction of fondling, holding that the trial court did not abuse its discretion in instructing the jury on the elements of the offense and that the indictment was not defective and included all the essential elements.
(9-0)

In the Matter of the Estate of Stimley: Morton Law Firm, PLLC v. Merchant, 2023-CA-00940-COA (Civil – Contract)
Reversing the chancery court’s award of attorney’s fees and expenses payable by the estate, holding that the record did not show a consideration of the McKee factors and remanding for further proceedings.
(8-1-0: Carlton did not participate)

Chung v. State, 2023-CA-00362-COA (Civil – Other)
Reversing the circuit court’s decision in a civil asset forfeiture after a bench trial, holding that the owner gave plausible explanations for having the cash and that the State presented insufficient evidence to demonstrate a connection between the owner and drug activity.
(5-4: Wilson dissented, joined by Carlton, Lawrence, and Emfinger)

Norton v. State, 2023-KA-00475-COA (Criminal – Felony)
Affirming conviction of possession of meth and possession of a firearm by a felon, declining to address the lone issue of ineffective assistance of counsel on direct appeal and leaving it to be pursued through a PCR motion.
(8-1-0: Emfinger concurred in result only without writing)

Arnold v. State, 2023-KA-00519-COA (Criminal – Felony)
Affirming conviction of three counts of sexual battery, holding that the trial court did not allow improper character evidence from two witnesses that testified the defendant made advances or abused them as children because that testimony showed proof of motive and established a common plan or scheme and holding that there was no merit to the defendant’s claim of prosecutorial misconduct.
(8-0: Smith did not participate)

City of Biloxi v. McDonald, 2023-CA-00777-COA (Civil – Real Property)
Affirming the circuit court’s judgment which reversed the City Council’s decision denying property owners’ application seeking a conditional-use permit for a short-term rental, holding that the Council’s decision was “the epitome of arbitrary and capricious” where the adjacent property on the same parcel of land had been approved and the owners had spent $70,000 on improvements to address neighbors’ expressed concerns.
(6-2: Carlton dissented, joined by Wilson and Lawrence)

Doukas v. Kiln Self Storage, 2023-WC-01195-COA (Civil – Workers’ Comp)
Affirming a finding that the claimant was not entitled to indemnity benefits for her left left leg and that the injury to her right leg did not render her permanent and totally disabled, holding that the Commission’s decision was supported by substantial evidence.
(5-4: Lawrence dissented, joined by Westbrooks, McDonald, and Smith; McDonald also noted a separate dissent without writing)

Other Orders

  • White v. The Home Depot, 2022-WC-00894-COA (denying rehearing)
  • Frazier v. State, 20222-CT-00896 (denying pro se motion to recall mandate)
  • Brown v. State, 2023-CP-00171-COA (denying untimely pro se motion for additional time to file motion for rehearing and request for appointed counsel)
  • Haley v. Brewer, 2023-SA-00571-COA (denying rehearing)
  • Fortner v. Bratcher, 2023-CP-00663-COA (granting appelle’s motion for appellate attorney’s fees)
  • Thornhill v. Thornhill, 2023-CA-00714-COA (denying appellee’s motion to dismiss the appeal and granting appellee’s request for additional time to file a responsive brief)
  • Quilantan v. State, 2024-CP-00357-COA (granting pro se motion to reinstate appeal)
  • Johnson v. State, 2024-TS-00650-COA (remanding appellant’s motion for leave to proceed in forma pauperis)
  • Riley v. State, 2024-TS-00833-COA (dismissing appeal for lack of appealable judgment)

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Mississippi Court of Appeals Decisions of August 6, 2024

The Mississippi Court of Appeals handed down six opinions today. Four are direct criminal appeals, one is an attorney’s fees dispute in a property-line encroachment case, and the other is a PCR case.

Perkins v. State, 2023-KA-00874-COA (Criminal – Felony)
Affirming conviction of felon in possession of a firearm, holding that the verdict was supported by sufficient evidence and not against the overwhelming weight of it and that the trial court did not abuse it discretion in admitting the defendant’s unredacted prior felony conviction, in denying a motion for mistrial based on a statement heard on bodycam video during the portion of that video that the State had agreed to mute, or in limiting the defendant’s cross-exam regarding police department policies.
(7-1-1: Westbrooks concurred in result only; McDonald dissented without writing)

Corr Properties, LLC v. Proctor, 2023-CA-00782-COA (Civil – Other)
Affirming the chancellor’s award of attorney’s fees after resolving a property-line encroachment dispute, holding that the chancellor did not err in granting one party’s request and denying the other party’s request where the chancellor made specific findings and his decision was supported by substantial evidence in the record.
(9-0)

Johnson v. State, 2022-KA-00665-COA (Criminal – Felony)
Affirming conviction of murder, holding that the trial court did not err by not objecting sua sponte to improper remarks by the State during closing argument that the defendant did not object to, that the defendant’s right to a speedy trial was not violated, that the trial court did not abuse its discretion in admitting a map, in admitting a thumbdrive with materials from the defendant’s Facebook page, that the lack of error precluded reversal based on cumulative error, and that the verdict was supported by sufficient evidence and not against the overwhelming weight of it, and declining to address ineffective-assistance-of-counsel claims on direct appeal.
(9-0)

Carroll v. State, 2023-CP-00688-COA (Civil – PCR)
Affirming the trial court’s denial of a PCR motion, holding that the indictment for burglary of a dwelling was not defective for listing the incorrect owner of said dwelling.
(9-0)

Alexander v. State, 2022-KA-00977-COA (Criminal – Felony)
Affirming conviction of touching of a child for lustful purposes, holding that the State made improper “golden rule” arguments during closing but that it was harmless in the context of the evidence supporting the conviction, that the trial court did not abuse its discretion denying the defendant’s for-cause challenge to a juror, that the trial court did not abuse its discretion in denying the defendant’s simple assault instruction, and that the single harmless error regarding golden-rule arguments did not amount to cumulative error.
(4-4-0: Barnes, Wilson, and Emfinger concurred in part and in the result without writing; Lawrence concurred in result only without writing; Smith did not participate)

Simmons v. State, 2023-KA-00130-COA (Criminal – Felony)
Affirming conviction of capital murder for killing someone during the commission of a burglary, holding that the evidence was sufficient to support the conviction, the verdict was not against the overwhelming weight of the evidence, the trial court did not err by admitting gruesome autopsy photos, and the trial court did not err by refusing the defendant’s proposed reasonable-doubt instructions.
(7-2: McDonald dissented without writing; Westbrooks dissented, joined by McDonald)

Other Orders

  • Weaver v. Ross, 2022-CA-00426-COA (denying rehearing)
  • The City of Pascagoula v. Cumbest, 2022-CA-00745-COA (denying rehearing)
  • Nettles v. Nettles, 2023-CA-00041-COA (denying rehearing)

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Mississippi Supreme Court Decisions of June 1, 2023

The Mississippi Supreme Court handed down seven opinions today, and covered a lot of territory in doing so. There is a breach of contract/attorney’s fees case, a fraudulent joinder venue case, a youth court venue case, a money dispute between a school board and school district, a direct criminal appeal, a death penalty PCR case, and an election contest. [There was a lot to get through today and I got a late start. I am sure there is a typo or two below that I will get around to catching and correcting.]

Healy v. AT&T Services, Inc., 2021-CP-01411-SCT (Civil – Other)
Affirming in part and reversing in part the chancellor’s decision in a breach of contract claim filed by a lawyer/law firm due to reassignment of a 1-800 number, holding that the chancellor did not err in awarding nominal damages of $500 where there was inadequate proof of actual damages but reversing the chancellor’s exclusion of attorney’s fees in the award of sanctions for discovery violations and remanded for determination of the appropriate amount.
(9-0)

Practice Point – Footnote 3 of this opinion is a cautionary tale for those submitted evidence in the record at the trial court level and those reviewing the clerk’s record during the appeal:

The plaintiff in this case was seeking lost profits, but was only awarded nominal damages because there was insufficient evidence to show decreased earnings. To support the damages claim on appeal, the plaintiff submitted the plaintiff’s trial testimony, the firm’s QuickBooks reports for 2017-2018, and the plaintiff’s 2019 tax return. I don’t know if the QuickBooks reports would have moved the needle in this case, but that’s a question one generally does not want lingering after an appeal.

Another Practice Point – This opinion has a thorough discussion of the law on the measure of damages for breach of contract and lost profits claims. It is worth bookmarking for that purpose.

Doe v. Adams County Dept. of Child Protection Services, 2022-CA-00240-SCT (Civil – Other)
Affirming youth court’s denial of motion to transfer venue in an action to terminate parental rights for lack of jurisdiction and motion for recusal, holding that venue was proper because both the natural mother and the child resided in the venue county and that the trial court did not commit a manifest abuse of discretion in denying a motion for recusal.
(9-0)

Alpha Management Corp. v. Harris, 2022-IA-00354-SCT (Civil – Wrongful Death)
consolidated with
Community Park Apartments, Inc. v. Harris, 2022-IA-0355-SCT (Civil – Wrongful Death)
Reversing the trial court’s denial of motions to transfer venue, holding that the defendant that purportedly established venue in Hinds County was not a material and proper party and setting aside a default judgment against the fraudulently-joined defendant.
(7-1-1: Coleman concurred in part, joined in part by Griffis; Griffis concurred in part and dissented in part, joined in part by Coleman.)

NOTE – When discussing its decision to set aside the default judgment against the fraudulently-joined defendant, the Supreme Court had this to say:

Board of Supervisors of Lowndes County v. Lowndes County School District, 2021-CA-00999-SCT (Civil – Other)
Reversing the trial court’s grant of summary judgment in favor of the school district in a dispute over the board’s decision to exclude more than $3M from the district’s requested ad valorem tax effort, holding that the district’s exclusive remedy was section 11-51-75 which required an appeal of the board’s decision to be filed in the circuit court within 10 days and that the district failed to do so.
(7-2-0: King concurred in the result only, joined by Kitchens.)

Welch v. State, 2022-KA-00457-SCT (Criminal – Felony)
Affirming conviction of statutory rape, holding that trial counsel’s decision not to collect and test defendant’s relatives’ DNA was reasonable trial strategy and not deficient performance and did not cause prejudice.
(9-0)

Garcia v. State, 2021-CA-01214-SCT (Civil – Death Penalty – Post Conviction)
Affirming denial of PCR motion to set aside a plea of guilty to capital murder and sentence to death, holding that the trial court did not fail to address the petitioner’s expert testimony and did not err by continuing to rely on the petitioner’s own competency expert or in ruling the petitioner was competent to plead guilty, that trial counsel was not constitutionally ineffective for not calling attention to a potential autism diagnosis or in preparing the petitioner to plead guilty, and the petitioner was not deprived of expert assistance under Ake.
(9-0)

Barton v. Adams-Williams, 2023-EC-00586-SCT (Civil – Election Contest)
Affirming denial of petition to disqualify a candidate for county prosecutor, holding that the trial court applied the proper standard in analyzing the candidate’s residency and did not manifestly err in its factual findings.
(9-0)

Other Orders

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing Nicholas K. Thompson as member of Supreme Court of Mississippi Advisory Committee on Rules)

Rules for Court Reporters, 89-R-99021-SCT (appointing Theresa Lumley and Hon. David B. Strong, Huey Bang, and Jerry D. Sharp as members of the Board of Certified Court Reporters)

Lowe v. State, 2019-CT-01621-SCT (dismissing cert petition)

Powers v. State,  2017-DR-00696-SCT (denying motion to stay, granting in part a motion to compel disclosure, and granting leave to file reply)

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Mississippi Court of Appeals Decisions of April 25, 2023

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)

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