The Mississippi Supreme Court handed down two opinions today. One is a termination of parental rights decision and the other a judicial performance case against Carlos Moore.
J.J.B. v. Monroe County Department of Child Protective Services, 2023-CA-00532-SCT (Civil – Custody) Affirming the chancellor’s decision in a custody matter, holding that the chancellor did not err in terminating the mother’s parental rights where even after CPS took the children into custody the mother failed to comply with a service plan for reunification and an agreed court order. (9-0)
Mississippi Commission on Judicial Performance v. Moore, 2024-JP-00121-SCT (Civil – Judicial Performance) Finding that a municipal court judge’s social media posts and public comments violated the Mississippi Constitution, the canons of judicial conduct, and a memorandum of understanding between the Commission and the judge, resulting in removal from the bench and a $3,000 fine. (8-1: King dissented, arguing that the statements at issue were protected by the First Amendment)
NOTE – Here are the two allegations of misconduct at issue. First, comments made on the Kelly Clarkson Show:
Second, a social media commentary on the Kyle Rittenhouse trial:
The Mississippi Court of Appeals handed down four opinions last week and seven this week. You can read summaries of the lot below.
October 22, 2024
Hampton v. State, 2023-KA-00068-COA (Criminal – Felony) Affirming convictions of first-degree murder and using a firearm during the commission of a felony, but vacating the consecutive five-year sentence for using a firearm during the commission of a felony where he was also sentenced to life. (9-0: Weddle did not participate)
Baur v. Ribelin, 2023-CA-00018-COA (Civil – Real Property) Affirming on direct and cross appeal in an adverse possession action, holding that the chancellor did not err in denying the claim for adverse possession or in confirming title in the rightful owner. (8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)
Johnson v. SW Gaming LLC, 2023-CA-00505-COA (Civil – Personal Injury) Affirming the circuit court’s decisions granting the defendants’ motions for summary judgment in an inadequate security case, holding that the evidence was not sufficient to establish an atmosphere of violence or actual or constructive knowledge that the assailant was a violent person and the evidence was not sufficient to establish garden variety negligence. (9-0: Weddle did not participate)
In the Interest of A.R.H., a Minor: Malone v. Jackson County Dept. of Child Protection Services, 2023-CA-00420-COA (Civil – Custody) Affirming the youth court’s custody order, holding that the youth court was in its discretion to find aggravated circumstances warranting bypassing reasonable efforts for reunification and that there were no evidentiary errors. (5-4: Wilson and Westbrooks dissented without writing; McDonnald dissented, joined by Westbrooks and McCarty)
October 29, 2024
Banks v. Banks, 2023-CA-00515-COA (Civil – Domestic Relations) Dismissing appeal for want of an appealable judgment. (9-0: Weddle did not participate)
Ware v. State, 2023-CP-00909-COA (Civil – PCR) Affirming summary denial of PCR motion, holding that the motion was time-barred and successive. (9-0: Weddle did not participate)
Morland v. Morland, 2023-CA-00237-COA (Civil – Custody) Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in finding that it was in the child’s best interest to be in the mother’s exclusive custody subject to visitation, in calculation and award of child support to the mother, or in awarding the mother attorney’s fees. (9-0: Weddle did not participate)
Mallard v. State, 2023-CP-01155-COA (Civil – PCR) Affirming denial of PCR motion, holding that the petitioner could not duck the successive petitions bar by proving any exceptions. (7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing)
Sessums v. Chicken Nugget, Inc., 2023-CA-00128-COA (Civil – Personal Injury) Affirming summary judgment in a premises liability case where the plaintiff tripped over two parking curbs, holding that the plaintiff did not come forward with evidence to prove that two abutting parking curbs created an unreasonably dangerous condition. (9-0: Weddle did not participate)
Scott v. State, 2023-KA-00559-COA (Criminal – Felony) Affirming conviction of one count of child abuse and conviction of life imprisonment without eligibility for parole for a father who abused his infant child, holding (1) that the admission of the father’s prior conviction for failure to register as a sex offender was not reversible error though it was error to refer to it as “failure to register as a sex offender” instead of “failure to register” which was the actual language in the prior sentencing order, (2) that the conviction was supported by sufficient evidence, and (3) the verdict was not against the overwhelming weight of the evidence. (4-5-0: Wilson and Smith concur in part and in the result without writing; Westbrooks, McDonald, and Lawrence concur in result only without writing; Weddle did not participate)
Tisdale v. South Central Regional Medical Center, 2023-CA-00231-COA (Civil – Med Mal) Affirming dismissal for failure prosecute, holding that the trial court did not err in reviewing the motion under Rule 41(b) instead of Rule 37, did not miscalculate the delay and correctly found clear delay with no activity occurring to advance the case to judgment in over two years, and did not abuse its discretion in determining that anything less than a dismissal would be unjust. (6-3: McDonald concurred in part and dissented in part without writing; Lawrence dissented, joined by McCarty, and joined in part by McDonald)
NOTE – The dissent argued that the majority discounted the impact of COVID.
Other Orders
October 22, 2024
Weatherly v. Weatherly, 2022-CA-00804-COA (denying rehearing)
Signaigo v. Grinstead, 2022-CA-01212-COA (denying rehearing)
Jackson v. State, 2023-KA-00201-COA (denying rehearing)
Neal v. Cain, 2023-CP-00625-COA (denying rehearing)
Washington v. State, 2024-CP-00059-COA (granting pro se motion to recall mandate and accept untimely brief)
October 29, 2024
Wilson v. State, 2023-CA-00070-COA (denying rehearing)
Shanks v. State, 2023-CP-00271-COA (denying rehearing)
Davis v. State, 2023-KA-00636-COA (denying rehearing)
Bradley v. State, 2023-CP-0764-COA (denying rehearing)
The Mississippi Court of Appeals handed down nine opinions on this Constitution Day. There is something for just about everyone but PCR enthusiasts. Today’s opinions include personal injury cases, divorce cases, a real property case, an arbitration-award confirmation case, a youth court case, and a direct criminal appeal.
Franks v. Franks, 2023-CA-00088-COA (Civil – Domestic Relations) Affirming final judgment of divorce, holding that the chancellor did not err in diving the martial home and ordering the husband to sell his portion to the wife where the husband agreed to do so, did not penalize the husband for embezzlement that occurred at his business but did not abuse her discretion in finding the husband’s adulterous relationship with the embezzler relevant in the Ferguson analysis, did not abuse her discretion in weighing the valuations of the marital property, did not abuse her discretion in awarding the wife attorney’s fees, did not abuse her discretion in not crediting the husband for payments made toward the marital home after the date of demarcation when he received the benefit of living in the home, and did not err in determining the amount of child support. (8-0: Carlton did not participate)
Zemek v. Gunn, 2023-CA-00833-COA (Civil – Other) Affirming the circuit court’s order denying a continuance and confirming an arbitration award, holding that the defendant waived the issue of timeliness and that, in any event, the confirmation petition was timely and that the circuit court did not abuse its discretion in denying a continuance. (9-0)
Fox v. Allen Automotive, Inc., 2023-CA-00441-COA (Civil – Personal Injury) Reversing summary judgment in favor of a car dealership in a premises liability action, holding that the trial court erred in finding that the plaintiff exceeded the scope of his invitation and became a trespasser where the plaintiff was injured while walking his dog and that because the plaintiff was an invitee there was a genuine issue of material facts as to whether the dealership had constructive knowledge of the dangerous condition. (9-0)
NOTE – The plaintiff was walking a Heeler when he fell. If anyone ever claims that you can’t hear a footnote, you can refute them with this:
Anderson v. Grabmiller, 2023-CA-00593-COA (Civil – Domestic Relations) Affirming the chancellor’s decision awarding alimony to the husband, holding that the chancellor did properly consider rehabilitative alimony and that the chancellor did not err in his Armstrong analysis. (9-0)
Brown v. State, 2023-KA-00648-COA (Criminal – Felony) Affirming conviction of second-degree murder but vacating the firearm enhancement portion, holding that the firearm enhancement should be vacated because the minimum sentence for that enhancement was less than the minimum sentence for the second-degree murder conviction, but that the State’s commends during closing did not rise to the level of plain error, that the ineffective-assistance-of-counsel claim should be denied without prejudice, that the trial court did not abuse its discretion admitting evidence of a shell casing recovered from the murder scene, that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, and that there was no cumulative error warranting reversal. (8-1-0: Westbrooks concurred in part and in the result without writing)
Jones v. Curtis, 2023-CA-00987-COA (Civil – Domestic Relations) Affirming decision modifying child-custody agreement, holding that the chancery court had subject matter jurisdiction and did not err in considering facts and events occurring before the initial custody determination. (7-2-0: McDonald and McCarty concurred in part and in the result without writing)
Cook v. Vowell, 2023-CA-00724-COA (Civil – Real Property) Affirming chancery court’s grant of specific performance of an option to purchase an interest in real property, holding that the chancellor did not err in finding that there was consideration for the contract where there was no separate consideration spelled-out for the option or in finding that there was a valid offer and acceptance. (9-0)
In the Matter of L.C.: Doe v. Bolivar County Youth Court, 2022-CA-00614-COA (Civil – Other) Reversing the youth court’s finding that the mother had not satisfactorily completed a service plan working towards reunification, holding that there was no substantial evidence to support the youth court’s finding that MDCPS had made requisite “reasonable efforts” towards reunification. (7-2: Westbrooks dissented, joined by McDonald; McDonald also separately noted a dissent but did not write)
Georgen v. Estate of Brown-Barrett, 2023-CA-00344-COA (Civil – Personal injury) Reversing the trial court’s grant of summary judgment in a premises-liability case, holding that the trial court erred in finding that a baby gate leaned against a doorway in a residence did not constitute a dangerous condition. (5-3: Carlton dissented, joined by Barnes, and Wilson; Westbrooks did not participate)
Other Orders
Whiddon v. State, 2022-KA-00616-COA (denying rehearing)
Crawford v. East Mississippi State Hospital, 2022-CA-00753-COA (denying rehearing)
Jackson v. State, 2022-KA-01143-COA (denying rehearing)
The Mississippi Court of Appeals handed down six opinions last week and three opinions this week. Since I was out of the office last Tuesday I included last week’s cases in this post. Between the two dates there there are a couple of service-of-process cases, a few personal injury cases, a couple of domestic relations cases, direct criminal appeals, and a two PCR cases. Appellants prevailed in all three of today’s cases.
September 3, 2024
Havard v. Hart, 2023-CA-00260-COA (Civil – Personal Injury) Affirming dismissal for insufficient service of process, holding that there was substantial evidence supporting the trial court’s finding that the defendant had not been properly served and that the plaintiff did not have good cause for failing to timely serve process. (8-1-0: McDonald concurred in result only without writing)
Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (Civil – Other) Dismissing appeal of order denying a motion to reinstate an order obtaining expunging a contractor’s lien, holding that the initial order expunging the lien was not a final appealable order and that subsequent orders on motions revising the interim order were not final either. (8-1-0: Wilson concurred in part and in the result without writing)
Hyland v. State, 2023-CA-00256-COA (Civil – PCR) Affirming the trial court’s dismissal of PCR motion challenging his convictions and seeking an out-of-time appeal, holding that motion was time-barred and successive. (9-0)
Fortner v. Bratcher, 2023-CP-00664-COA (Civil – Domestic Relations) Affirming the chancellor’s findings related to motions for contempt and custody modification, holding that the chancellor did not abuse his discretion finding the father in contempt, carrying forward the parties’ agreed visitation schedule, or enjoining the parties from contacting CPS with allegations of neglect or abuse without first contacting local law enforcement. (9-0)
Miller v. State, 2023-CP-00812-COA (Civil – PCR) Affirming the trial court’s dismissal of a PCR motion, holding that it was barred by the UPCCRA’s statute of limitations. (9-0)
Wilkerson v. Allred, 2023-CA-00393-COA (Civil – Personal Injury) Reversing the trial court’s grant of summary judgment dismissing claims for emotional distress damage after the defendant shot and killed the plaintiff’s puppy in the head as it sat next to the plaintiff’s twelve-year-old sister, holding that there was a jury question on the issue of whether the plaintiff’s emotional distress injuries were reasonably foreseeable to the defendant. (4-3-2: Wilson and McDonald concurred in part and in the result without writing; Westbrooks concurred in the result only without writing; Carlson dissented, joined by Emfinger and joined in part by McDonald.)
September 10, 2024
Bell v. State, 2023-CA-00951-COA (Criminal – Felony) Vacating and remanding revocation of a suspended sentence, holding that the trial judge was automatically disqualified because she had previously served as the ADA for the underlying conviction. (7-2: Barnes dissented, joined by Wilson)
Wells v. Wells, 2023-CA-00674-COA (Civil – Domestic Relations) Reversing the chancery court’s judgment granting the wife’s petition for divorce and divesting the husband of his interest in real property, holding that there was no evidence that the husband was properly served. (4-1-4: Emfinger concurred in part and in the result without writing; Wilson dissented, joined by Barnes, Lawrence and Smith.)
Deere v. Taylor, 2023-CA-00063-COA (Civil – Personal Injury) Reversing the trial court’s dismissal of a personal injury lawsuit, holding that the prohibition against claim-splitting was not triggered where the plaintiff filed one lawsuit but was unable to serve the defendants and months later filed a second lawsuit asserting the same causes of action against the same parties while the first lawsuit sat stale.
Other Orders
Daly v. Raines, 2022-CT-00600-SCT (denying appellant’s to voluntarily dismiss this appeal)
McKenzie v. McKenzie, 2022-CA-01175-COA (denying rehearing)
Estate of Staten: Staten v. Pedersen, 2023-CA-00228-COA (denying untimely motion tor additional time to file a motion for rehearing)
Stewart v. State, 2024-TS-00606-COA (dismissing appeal as untimely)
The annual July hiatus is over and the Mississippi Court of Appeals is back today with nine opinions. There are four direct criminal appeals, including one reversal of a murder conviction. There are three real property cases, one involving a partition, one an administrative condemnation decision, and the other a landowner’s right to keep horses on her property within city limits. There is also a custody modification decision and a PCR decision.(If you notice a missing tenth judge on these cases, Judge Greenlee’s retirement from the court was effective July 1, 2024.)
JDB Rentals, LLC v. City of Verona, 2023-CA-00431-COA (Civil – Real Property) Reversing the circuit court’s decision affirming the board of aldermen decision administratively condemning three of rental properties, holding that the exclusionary rule prohibited consideration of evidence the code-enforcement officer obtained incident to an unconstitutional search of property. (8-1-0: Carlton concurred in result only without writing)
Davis v. State, 2023-KA-00636-COA (Criminal – Felony) Affirming conviction of first-degree murder and shooting into a motor vehicle, holding that the trial court did not err by not striking four potential jurors because none of the four was seated on the jury. (8-1-0: McDonald concurred in the result only without writing)
Shanks v. State, 2023-CP-00271-COA (Civil – PCR) Affirming denial of PCR motion seeking relief from a 2003 guilty plea, holding that the claims were not subject to any exception and did not involved the parole board. (9-0)
Wade v. Simmons Erosion Control, Inc., 2023-CA-00733-COA (Civil – Real Property) Affirming the chancery court’s decision dividing a large tract of land between two landowners, holding that the chancellor did not commit manifest error by accepting and approving a special master’s report and choosing one of the partition options presented by the special master. (9-0)
Sinquefield v. The City of Ridgeland, 2022-CA-01276-COA (Civil – Real Property) Reversing the circuit court’s decision that affirmed the City’s unanimous (no nays) decision that a landowner lacked the requisite acreage to maintain two horses on her property, holding that the City had to be reined in because its interpretation of the ordinance was not based on substantial evidence and was arbitrary and capricious where the owner had ponied up and acquired possessory interest in adjacent tracts. (6-1-0: McCarty concurred in part and in the result without trotting out a written opinion; Barnes and Emfinger did not participate)
Herrington v. State, 2022-KA-00691-COA (Criminal – Felony) Affirming conviction of aggravated assault, holding that after reviewing counsel’s Lindsey brief and the record that there were no issues that warranted reversal. (8-0: Lawrence did not participate)
Littleton v. State, 2023-KA-00239-COA (Criminal – Felony) Reversing the conviction of first-degree murder, holding that the circuit court erred in admitting a recorded statement of a witness where the witness was not called giving the defendant no opportunity to cross-examine the witness in violation of the Confrontation Clause, that the admission of the statement was not harmless error, and that the trial court abused its discretion in refusing to give the proposed defense instruction stating the jury’s duty to acquit should it find that the defendant acted in necessary self-defense. (6-3-0: Lawrence and Emfinger concurred in part and in the result without writing; Wilson concurred in result only without writing)
NOTE – Here is a summary of the court’s holding that the admission of the statement was error from paragraph 42 of the opinion:
Wells v. State, 2022-KA-00707-COA (Criminal – Felony) Affirming conviction of conspiracy to commit murder and first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence. (9-0)
May v. Brown, 2023-CA-00624-COA (Civil – Custody) Affirming the chancery court’s child-custody modification order, holding that substantial evidence supported the modification giving the father primary care, control, and custody of the minor. (8-1: Westbrooks concurred in result only without writing)
Other Orders
Estate of Green v. Michini, 2022-CA-00365-COA (denying motions for rehearing)
Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (denying rehearing)
The Mississippi Court of Appeals handed down eight opinions today. There is a paternity/child support case, a custody/termination of parental rights case, an MTCA personal injury case, a contract case, a slip-and-fall summary judgment, and three direct criminal appeals.
Myles v. Lewis, 2022-CA-01192-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancellor’s rulings in a paternity action, holding that the chancellor erred in computing monthly child support by failing to account for the father’s significant income increase and personal withdrawals, inaccuracies in his financial statement, and admitted commingling of personal and business expenses; holding that the chancellor did not err in not requiring the father to pay half of the child’s private school tuition, insurance premiums, and extracurricular fees; and holding that no party was entitled attorney’s fees. (9-1-0: Wilson concurred in part and in result without writing)
Lemay v. City of Biloxi, 2023-CA-00469-COA (Civil – Personal Injury) Affirming summary judgment in favor of the City in an MTCA case stemming from a collision with a police officer, holding that although the trial court incorrectly ruled that the plaintiff was precluded from recovery because she was allegedly speeding, the summary judgment should affirmed because the undisputed evidence showed the officer was engaged in police protection activity and that he did not act with reckless disregard. (7-2-0: Carlton and Wilson concurred in part and in the result without writing; Lawrence did not participate)
Hattie T. v. Matthew R., 2022-CP-00926-COA (Civil – Custody) Affirming the chancery court’s final judgment terminating parental rights, holding that the chancellor did not err in denying the mother’s motion to dismiss and that the chancellor’s decision terminating parental rights was supported by clear and convincing evidence and was in the best interests of the children. (10-0)
Collins v. State, 2022-KA-01184-COA (Criminal – Felony) Affirming convictions of kidnapping, armed robbery, armed carjacking, aggravated assault, conspiracy to commit kidnapping, and conspiracy to commit armed robbery, holding that the circuit court did not abuse its discretion in admitting evidence of other acts and crimes coupled with a limiting instruction, in excluding evidence of the defendant’s assault in prison by two witnesses, or in refusing the defendant’s instructions on lesser included instruction. (7-2-0: McCarty concurred in part and in the result without writing; Westbrooks and McDonald concurred in result only without writing)
Terry v. State, 2022-KA-01194-COA, consolidated with Thomas v. State, 2022-KA-01278-COA (Criminal – Felony) Affirming convictions of two defendants (Terry and Thomas) for first-degree murder and drive-by shooting, holding that though the trial court abused its discretion in admitting surveillance video the error was harmless, that Terry’s conviction was not against the overwhelming weight of the evidence, that the trial court did not abuse its discretion in admitting text messages because they were not hearsay. (10-0)
Designer Custom Homes, LLC v. U.S. Coating Specialties & Supplies, LLC, 2023-CA-00207-COA (Civil – Contract) Reversing the circuit court’s reversal of the county court’s order granting summary judgment in favor of the plaintiff in a breach of contract case, holding that the circuit court erred by reversing on an issue and argument that were not raised in the county court or briefed on appeal and erred by finding that there was evidence in the record that presented a genuine issue of material fact. (10-0)
Practice Point – Don’t rehash your trial court pleadings on appeal:
If the appeal process is daunting or simply pulling you away from other work you would rather do, your friendly neighborhood appellate attorney would love to visit with you about it.
Anderson v. SW Gaming LLC, 2023-CA-00345-COA (Civil – Personal Injury) Affirming summary judgment for the defendant in a slip-and-fall case, holding that there was no evidence that the defendant caused water on the floor in the bathroom or that the defendant had either actual or constructive knowledge that there was water on the floor. (10-0)
Harrera v. State, 2022-KA-01167-COA (Criminal – Felony) Affirming conviction of one count of kidnapping, holding that the conviction was supported by sufficient evidence, that the kidnapping instruction did not constructively amend the indictment (an issue that was procedurally barred and without merit), and that the trial court did not err by giving the State’s accomplice liability instruction. (9-1-0: Westbrooks concurred in result only without writing)
Other Orders
Allen v. State, 2022-KA-00419-COA (denying rehearing)
Minor v. State, 2022-KA-00990-COA (denying rehearing)
The Mississippi Court of Appeals handed down ten opinions today. They started out with a run of short and sweet 10-0 opinions and then things got more interesting. There are two split opinions on the admission of confessions, a construction contract/negligence case, a divorce decision, several more direct criminal appeals, and a couple of PCR opinions.
Johnson v. State, 2022-KA-01127-COA (Criminal – Felony) Affirming conviction of sexual battery, holding that after a review of counsel’s Lindsey Brief and the record that there was no reversible error. (10-0)
Carter v. State, 2023-KA-00052-COA (Criminal – Felony) Affirming conviction of second-degree murder, holding that the trial court did not err in refusing the defendant’s accident instruction and that the castle-doctrine’s presumption of fear was procedurally barred and that the evidence was sufficient to show that the defendant did not act in self defense. (10-0)
Reed v. State, 2023-KA-00248-COA (Criminal – Felony) Affirming conviction of possession of hydrocodone/acetaminophen, holding that after a review of counsel’s Lindsey Brief and the record that there was no reversible error. (10-0)
Dobbins v. State, 2023-CA-00562-COA (Civil – PCR) Affirming summary dismissal of PCR petition, holding that the petition was statutorily barred. (10-0)
Mac Long Homes, LLC v. Olvera Construction, LLC, 2022-CA-00938-COA (Civil – Contract) Affirming in part and reversing in part the circuit court’s dismissal of of a contractor’s claims against a subcontractor after the contractor lost an arbitration proceeding against the homeowner, holding that the breach of contract and negligent misrepresentation claims were time-barred, that the common-law indemnity claim was not yet ripe so dismissal without prejudice was proper, that the negligence claim was not time-barred, and that the circuit court did not err in denying the plaintiff’s motion to amend the complaint. (8-2-0: Westbrooks specially concurred, joined by McDonald and McCarty; Wilson concurred in the result only without separate written opinion)
NOTE – The common-law indemnity holding here is interesting. I have been in and around the argument that crossclaims of common-law indemnity against codefendants are not proper for lack of ripeness. I expect that this opinion will be cited frequently in the future.
Hollon v. State, 2023-CP-00202-COA (Civil – PCR) Affirming denial of PCR petition, holding that the guilty plea was voluntary and not coerced, that trial counsel was not ineffective, and that the petitioner was not otherwise entitled to relief. (9-0: Smith did not participate)
Winstead, v. State, 2022-KA-01235-COA (Criminal – Felony) Affirming conviction of leaving the scene of an accident resulting in death, holding that the trial court erred in admitting the defendant’s confession because it was obtained in violation of Edwards v. Arizona but that the error was harmless in light of the overwhelming weight of evidence of guilt, and holding that the trial court did not err by admitting a bloodstain card. (6-4: Carlton concurred in part and in the result without writing; Greenlee and Smith concurred in part and dissented in part without writing; Lawrence concurred in part and dissented in part, joined by Carlton, Greenlee, and Smith.)
NOTE – The partial dissent took issue with the majority’s holding that the confession should have been excluded. Here is the majority’s summary of its holding on that issue:
Smith v. State, 2023-KA-00185-COA (Criminal – Felony) Affirming conviction of sexual battery of a minor, holding that the circuit court did not err in admitting the defendant’s confession or by holding the trial in absentia. (4-2-4: Wilson and Emfinger concurred in part and in the result without writing; McCarty dissented, joined by Westbrooks and McDonald, and joined in part by Barnes and Emfinger)
Weatherly v. Weatherly, 2022-CA-00804-COA (Civil – Domestic Relations) Affirming the chancellor’s rulings in a divorce proceeding, holding that the chancellor did not err in awarding sole physical custody to the mother, in awarding child support to the mother to the father despite the mother’s significantly higher income, in the valuation and distribution of marital property, in awarding the father alimony, or in denying the father’s request for attorney’s fees. (3-2-4: McDonald and McCarty concurred in part and in the result without writing; Barnes, Westbrooks, and Emfinger concurred in part and dissented in part without writing; Wilson concurred in part and dissented in part, joined by Barnes, Westbrooks, and Emfinger, and joined in part by McDonald and McCarty; Smith did not participate)
City of Verona v. Moffett, 2022-WC-01050-COA (Civil – Workers’ Comp) Affirming the MWCC’s finding that a former police officer sustained an 80% loss of wage-earning capacity, holding that there was substantial, credible evidence supporting the Commission’s decision that was based on evidence of physical injuries and PTSD resulting from a physical assault while the claimant was responding to a domestic violence call. (6-1-3: McCarty concurred in part and in the result without writing; Wilson dissented, joined by Smith and Emfinger.)
Other Orders
Silver Dollar Sales, Inc. v. Battah, 2022-CA-00476-COA (rehearing denied)
Fluker v. State, 2022-KA-00692-COA (denying rehearing)
Quinn v. State, 2022-KA-00962-COA (denying rehearing)
The Mississippi Supreme Court handed down two opinions yesterday. One is a temporary custody case that the Court took up on interlocutory appeal and the other is the conclusion of a major school-funding case.
Hinds v. Caldwell, 2023-IA-00813-SCTconsolidated with 2023-IA-00839-SCT (Civil – Custody) Reversing the chancellor’s temporary order granting durable legal and physical custody of a foster child and dismissing CPS, holding that the chancellor erred by divesting CPS of custody and dismissing CPS without a hearing. (9-0)
Midsouth Ass’n of Independent Schools v. Parents for Public Schools, 2022-SA-01129-SCT (Civil – Unconstitutional Statute) Vacating the chancellor’s decision that two statutes creating and funding a grant program for schools, holding that the petitioner organization failed to demonstrate an adverse impact sufficient to grant associational standing or prove that it had taxpayer standing. (7-2: King dissented, joined by Kitchens)
Other Orders
Washington v. State, 2021-CT-01384-SCT (denying cert)
Stratton v. McKey, 2023-CP-00451-SCT (denying rehearing)
Farr v. The Mississippi Bar, 2023-BD-01391-SCT (granting leave to resign in good standing from the practice of law)
[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]
I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.
February 6, 2024
Porter v. State, 2023-CP-00091-COA (Civil – Other) Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county. (9-0: Smith did not participate)
Gilmore v. State, 2023-CP-00527-COA (Civil – PCR) Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions. (9-0: Emfinger did not participate)
Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract) Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement. (7-2: Westbrooks and McDonald dissented; Smith did not participate)
Practice Point – Cite the record early and often in your briefs:
Moates v. State, 2022-KA-01062-COA (Criminal – Felony) Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot. (10-0)
Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.
Other Orders
Gilbert v. State, 2021-KA-01265-COA (denying rehearing)
Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)
Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence. (9-1-0: McDonald concurred in part and in the result without separate written opinion)
Allen v. State, 2022-KA-00935-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter. (10-0)
Netherland v. State, 2022-CP-01236-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim. (10-0)
Brooks v. State, 2022-KA-01016-COA (Criminal – Felony) Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence. (8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)
EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies) Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review. (8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)
Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property. (10-0)
Wade v. State, 2022-CA-00370-COA (Civil – PCR) Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment. (6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)
Hunter v. State, 2022-CP-01269-COA (Civil – PCR) Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely. (10-0)
Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies) Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings. (3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)
Other Orders
Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)
Odom v. State, 2021-KA-00676-COA (denying rehearing)
Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)
Litton v. Litton, 2022-CA-00712-COA (denying rehearing)
Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)
Patel v. State, 2022-CA-00985-COA (denying rehearing)
Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)
Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)
Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)
Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)
Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)
Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)
The Mississippi Court of Appeals handed down eight decisions on Tuesday that cover a lot of territory. There is something for just about everybody.
Read on down for a case that underscores the importance of keeping up with the weekly hand downs from the Mississippi Supreme Court and Mississippi Court of Appeals. (Subscribing to this blog probably doesn’t hurt you in that endeavor.)
Coogan v. Nationwide Prop. and Cas. Ins. Co., 2022-CA-01063-COA (Civil – Insurance) Affirming partial summary judgment in policy holders’ suit against their auto liability carrier, holding that the carrier had an arguably reasonable basis to support its claims handling the circuit court did not err in finding that there was no genuine issue of material fact on the bad faith punitive damages claim or the Veasley damages claim. (6-2-1: McCarty concurred in part and in the result without writing, Westbrooks concurred in result only without writing, McDonald dissented without writing, Lawrence did not participate)
Forrest v. State, 2022-KA-00844-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence and that the court did not admit inadmissible hearsay or irrelevant evidence, and dismissing the ineffective assistance of counsel claim without prejudice. (10-0)
Hills v. Manns, 2022-CA-00774-COA (Civil – Domestic Relations) Affirming modification of visitation schedule, holding that the chancellor did not err in not dismissing the mother’s petition on the basis of res judicata, not awarding him attorney’s fees, or in awarding the mother final decision-making authority. (10-0)
Strong v. Acara Solutions, Inc., 2022-CA-01240-COA (Civil – Personal Injury) Reversing the trial court’s dismissal of a personal injury lawsuit on judicial estoppel grounds, holding that the case should be remanded to allow the circuit court to apply the test from a recent Mississippi Supreme Court decision that was handed down after the circuit court’s ruling. (10-0)
PRACTICE POINT – This case illustrates the importance of keeping up with decisions handed down weekly by Mississippi’s appellate courts. (By extension, this case illustrates why you and all of your friends should subscribe to the Mississippi Appeals Blog – I covered the Saunders decision here when it was handed down.)
PRACTICE POINT (continued): Though the Mississippi Supreme Court’s decision in Saunders was handed down after the summary judgment order was entered, the Supreme Court’s decision in Jones, infra, with its special concurrence, was handed down before the summary judgment proceedings. So the precedential special concurrence in Jones that controlled this case was in force during the summary judgment proceedings. This case serves as a good reminder that special concurrences that garner a majority of the court have the force of precedent. (Another shameless plug: I covered the Jones decision here when it was handed down and specifically discussed the precedential value of the special concurrence.)
Barefield v. Barefield, 2022-CA-00834-COA (Civil – Torts-Other) Affirming the chancellor’s order requiring the former member/owner of an investment company to pay a forensic accountant’s fee for services during litigation among all members/owners, holding that the exert was court-appointed and the chancellor had discretion to order the party whose actions necessitated the lawsuit to pay the fees. (8-2-0: McCarty concurred in part and in result without writing; Wilson concurred in result only without writing)
Henderson v. State, 2022-KA-00661-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the evidence was sufficient to support the conviction and the verdict was not against the overwhelming weight of the evidence. (10-0)
Nichols v. State, 2022-KA-00202-COA (Criminal – Felony) Reversing conviction of first-degree murder and remanding for new trial, holding that the circuit court erred by failing to instruct the jury on the “castle doctrine,” while also holding that the evidence to support the conviction was legally sufficient so the remedy was a new trial. (10-0)
Miss. Dept. of Human Servs. v. Johnson, 2022-SA-00605-COA (Civil – Domestic Relations) Affirming the chancellor’s decision voiding a 2002 paternity and child-support order was void for insufficient service of process, holding that in light of MDHS’s admission that failed to effect proper service under Rule 81(d) MDHS’s arguments under the doctrine of laches, judicial estoppel, unjust enrichment, and public policy failed. (6-4: Greenlee dissented, joined by Wilson, Lawrence, and Emfinger)
Other Orders
Gillen v. Gillen, 2021-CA-00837-COA (granting motion for appellate attorneys’ fees)
Moore v. State, 2022-KA-00327-COA (granting appearance as counsel, but denying motion to substitute and motion to file supplemental brief)
Diming v. State, 2022-KA-00412-COA (recalling mandate and granting motion for time to file motion for rehearing)
Russell v. State, 2022-KA-00447-COA (recalling mandate and granting motion for time to file motion for rehearing)
Greater Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (denying rehearing)
Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (denying motion for reconsideration)
Mitchell v. State, 2023-TS-00764-COA (granting motion to proceed out-of-time)
Robinson v. State, 2023-TS-00935-COA (dismissing untimely appeal)
Britton v. State, 2023-TS-01060-COA (dismissing untimely appeal)
Rutherford v. State, 2023-TS-01066-COA (dismissing appeal for lack of appealable judgment)
Rutherford v. State, 2023-TS-01069-COA (dismissing appeal for lack of appealable judgment)
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