Tag: Child Custody

Mississippi Court of Appeals Decisions of November 28, 2023

The Mississippi Court of Appeals handed down five opinions today. There are two domestic cases (custody and divorce), an appeal of summary judgment, a real property/arbitration case, and a PCR case.

Scott v. Boudreau, 2022-CA-00961-COA (Civil – Custody)
Affirming judgment modifying custody and awarding the father custody, holding that the chancery court did not abuse its discretion in analyzing the Albright factors and awarding custody to the father which required relocating the children.
(8-1-1: Wilson concurred in part and in the result without writing, McDonald concurred in part and dissented in part without writing)

Malone v. State, 2022-CP-00958-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the petitioner entered his guilty plea voluntarily and the circuit court did not err on the issue of competency where the circuit court made an on-the-record determination of competency and that the petitioner’s attorney’s performance was not deficient.
(7-3-0: Wilson, Westbrooks, and McCarty concurred in part and in the result without writing)

MDL Community Development, LLC v. Dillon, 2022-CA-00802-COA (Civil – Real Property)
Affirming the chancellor’s decision withdrawing an order and reiterating a prior order compelling arbitration, holding that the chancellor had subject matter jurisdiction over the land-contract dispute and retaind jurisdiction to enforce an arbitration decision, if any.
(10-0)

Cannon v. Cannon, 2022-CA-00410-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s grant of divorce and related matters, holding the chancellor did not err in granting divorce on the ground of cruel and inhuman treatment or in finding that the proceeds from the sale of the ex-wife’s separate home were converted to marital property, but holding that the chancellor erred in determining that the ex-husband’s real estate business was separate non-martial property.
(9-1-0: Emfinger concurred in part and in the result without writing)

Jarrell v. Coastal Ear, Nose & Throat, Head and Neck Surgery Association, PLLC, 2022-CA-00910-COA (Civil – Other)
Affirming the trial court’s grant of summary judgment dismissing a former employee’s wrongful discharge claim, holding that the circuit court did not err in striking parts of the plaintiff’s affidavit that contained hearsay, lacked foundation, and were speculative statements, and that the plaintiff did not establish that the whistleblower exception to at-will employment could apply here.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

Other Orders

Rawlings v. Rawlings, 2022-CA-00919-COA (denying motion for appellate attorney’s fees)

Hand Down Page

Mississippi Court of Appeals Decisions of October 10, 2023

The Mississippi Court of Appeals handed down nine opinions today. All but three are direct criminal appeals. Of the six direct criminal appeals, two are reversals. On the non-criminal side of the ledger are an MDES case, a custody decision, and a tangled web of a case stemming from the sale of a log house.

Crutchfield v. State, 2022-KA-00815-COA (Criminal – Felony)
Affirming conviction of first degree murder and felon in possession of a firearm, holding that the verdict was supported by sufficient evidence and that it was not against the overwhelming weight of the evidence.
(10-0)

Hoffman v. MDES, 2022-CC-00948-COA (Civil – State Boards & Agencies)
Affirming denial of a claim for unemployment benefits based on the COVID-19 pandemic, holding that substantial evidence supported the finding that bank statements alone did not provide sufficient evidence of self-employment income, that the claimant’s right to a fair hearing was not violated, and that the claimant was required to repay an overpayment amount.

(8-1-0: Wilson concurred in part and in the result without separate written opinion.)

Jackson v. State, 2022-KA-00009-COA (Criminal – Felony)
Reversing murder conviction, holding that the evidence was insufficient to support the conviction where the State’s case rested entirely on circumstantial evidence of motive and proximity.
(6-1-3: Wilson concurred in part and in the result without written opinion; Westbrooks concurred in part and dissented in part without written opinion; Emfinger dissented, joined by Greenlee)

NOTE – Here is the heart of the Court’s reasoning:

Rodgers v. State, 2022-KA-00179-COA (Civil – Felony)
Affirming conviction of possession of meth but reversing conviction of conspiracy to sell meth, holding that there was insufficient evidence of the conspiracy count because the alleged co-conspirator was not aware of the alleged conspiracy.
(7-1-0: McDonald concurred in part and in result without written opinion; Westbrooks and Emfinger did not participate.)

White v. State, 2022-KA-00607-COA (Criminal – Felony)
Affirming conviction or armed robbery, holding that the trial court did not err in admitting the defendant’s admissions of guilt during his interrogation because the admission was freely and voluntarily made and because the probative value was not substantially outweighed by the danger of unfair prejudice.
(10-0)

Young v. Niblett, 2022-CA-00294-COA (Civil – Custody)
Affirming the chancellor’s decision modifying custody and awarding sole physical custody to the father, holding that the evidence supported the chancellor’s determination that there was a material change in circumstances and holding that the chancellor’s failure to include a summary of the GAL’s qualifications along with the summary of the GAL’s recommendations was not reversible error.
(10-0)

Britt v. Orrison,  2022-CP-00165-COA (Civil – Other)
Affirming in part and reversing in part the chancery court’s dismissal of a petition for contempt, holding that the Court lacked jurisdiction to consider the issue of the appellant’s request for costs stemming from a prior appeal and that the chancellor did not abuse his discretion in denying a motion to recuse, but that the chancellor erred in dismissing the petition for contempt with respect to the sale of a log house.
(8-1-0: Wilson concurred in result only without written opinion; Lawrence did not participate.)

NOTE – There is a lot of procedural background and litigation background in this opinion that I have not delved into.

Kirkland v. State, 2022-KA-00851-COA (Criminal – Felony)
Affirming conviction of nine counts of touching a child for lustful purposes, holding that the circuit court did not err in denying a motion to sever and hold three different trials for each of the three victims and or in finding no discovery violation when the State did not tell the defense that one of the victims had her disclosure date tattooed on her wrist.
(8-1-0: McCarty concurred in part and in the result without written opinion; Smith did not participate.)

Bolton v. State, 2022-KA-01118-COA (Criminal – Felony)
Affirming conviction of business burglary, holding that the trial court did not err in denying the defendant’s request for a larceny instruction and that there was no error in denying the motion for new trial because the verdict was not against the overwhelming weight of the evidence.
(9-1: McDonald dissented without written opinion.)

Other Orders

Gussio v. Gussio, 2020-CA-00785-COA (denying motion for appellate attorney’s fees)

Manley v. Manley, 2021-CA-00700-COA (denying rehearing)

Knight v. State, 2021-CP-01192-COA (denying rehearing)

Prather v. State, 2021-KA-01416-COA (denying rehearing)

Brown v. State, 2022-CP-00069-COA (denying rehearing)

Brandi’s Hope Community Services, LLC v. Walters, 2022-CA-00188-COA (denying rehearing)

Keller v. State, 2023-TS-00901-COA (granting time to respond to show cause notice)

Hand Down Page

Mississippi Court of Appeals Decisions of September 5

I was out of town last Tuesday, so I am circling back to last week’s decisions from the Mississippi Court of Appeals. The Court handed down three opinions on Tuesday. Two are direct criminal appeals and the other one is a child custody case.

Goode v. State, 2021-KA-01310-COA (Criminal – Felony)
Affirming conviction of murder and denial of post trial motions, holding that the trial court did not err in admitting photographs of the victim and his injuries or in denying the motion for directed verdict where there was testimony from three eyewitnesses and a medical examiner, that the verdict was not against the overwhelming weight of the evidence, and that the trial court did not err in refusing five of the defendant’s proposed jury instructions.
(8-2-0: Wilson and Emfinger concurred in part and in the result sub silentio)

NOTE – The first refused instructions was a peremptory instruction. The second was a definition of “reasonable doubt.” The third was a lesser-included instruction of heat-of-passion manslaughter which the trial court deemed forfeited when the defendant took the stand and denied shooting the victim. The fourth and fifth refused instructions were on eyewitness identifications which were properly refused because there were multiple eyewitnesses.

Urban v. Urban, 2022-CP-00195-COA (Civil – Custody)
Affirming judgment denying petition for modification of custody leaving the mother with full legal and physical custody, holding that the father received sufficient service for the Rule 59(e) motion which did not require a Rule 81 summons, that the chancellor did not err in finding that the mother showed a need to correct a clear legal error which the chancellor properly did, that claims of fraud by the mother and bias of the chancellor were procedurally barred, that there was no basis for the father’s claim that the chancellor admitted hearsay, that the equitable estoppel argument was procedurally barred, and that the issue of whether the chancellor should have adopted the GAL’s recommendations could not be addressed because the GAL report was not in the record on appeal.
(9-1: Barnes concurred in the result only sub silentio)

Kilcrease v. City of Tupelo, 2022-KM-00194-COA (Criminal – Misdemeanor)
Affirming the dismissal of an appeal from municipal court for lack of jurisdiction, holding that it lacked jurisdiction where the appellant failed to timely file an appearance bond to perfect her appeal to the county court.
(5-5: McDonald dissented, joined by Carlton, Greenlee, Westbrooks, and McCarty)

NOTE – The dissent first took issue with questions about whether the municipal court violated statutory and constitutional rights:

The dissent’s discussion of the timeliness of the appeal was interesting:

Other Orders

In the Matter of the Last Will and Testament of Mamie Elizabeth Pearson Bray, 2022-CA-00011-COA (denying rehearing)

Parker v. Canton Manor, 2022-WC-00206-COA (denying rehearing)

Applewhite v. State, 2022-KA-00290-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of May 23, 2023

The Mississippi Court of Appeals handed down five opinions today in five different areas of law: custody, PCR, wills and estates, criminal, and personal injury.

Culver v. Culver, 2021-CA-01108-COA (Civil – Custody)
Affirming the chancellor’s ruling changing physical custody from the mother to the father, holding that the chancellor did not err in finding an impending move out-of-state would constitute a material change in circumstances that would adversely impact the children’s welfare and that the chancellor’s analysis of the Albright factors was not manifestly wrong.
(6-3-0: Wilson, Westbrooks, and McDonald concurred in result only without separate written opinion; Lawrence did not participate.)

Brown v. State, 2022-CP-00069-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the ineffective assistance of counsel claims were untimely, barred as successive, and precluded by res judicata; the circuit court was not required to grant the plaintiff’s MSJ or find the State in contempt for not responding to it; and the circuit court was not obligated to conduct an evidentiary hearing.
(10-0)

Roosa v. Roosa, 2022-CA-00128-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s estate orders in a 15-year-long legal saga over the estate of an astronaut, holding that the challenging beneficiary (1) waived the argument that the executor did not have authority to donate property to a foundation and (2) did not secure a ruling from the chancellor on the issue of whether the donation met the requirements of a valid inter vivos gift.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Practice Point – This decisions is a good reminder that you have to get a ruling from the trial court on an issue before you can appeal the issue:

Trest v. State, 2021-KA-00968-COA (Criminal – Felony)
Affirming conviction of molestation, holding that the circuit court did not abuse its discretion by admitting evidence of prior bad acts (of molestation) or denying a mistrial when the witness to the prior molestation said that the defendant had molested “us” or by admitting evidence under the tender-years exception, and that the evidence was sufficient to support the conviction.
(8-1-0: Westbrooks concurred in part and in the result without separate written opinion.)

Rhodes v. RL Stratton Properties LLC, 2022-CA-00338-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a building owner in a suit filed by a roofer who fell through a framed opening in the attic floor while looking for the source of water leaks, holding that the failure to warn an experienced roofer claim failed as a matter of law and that the fall through the opening was “intimately connected” to the work the plaintiff was hired to do.
(10-0)

Other Orders

Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (denying rehearing)

Colenberg v. State, 2021-CA-00673-COA (denying rehearing)

Smith v. Minier, 2021-CA_01284-COA (denying rehearing)

Mallard v. State, 2022-CA-00152-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 28, 2023

The Mississippi Court of Appeals handed down three opinions today. Two are domestic relations cases: one dealing with child support and the other primarily dealing with custody. The third decisions is a PCR case.

Everett v. State, 2021-CP-01415-COA (Civil – PCR)
Affirming summary denial of a motion for PCR alleging an illegal sentence, holding no error because the sentence imposed was the maximum punishment authorized by statute at the time.
(7-2-0: Westbrooks and McDonald concurred in result only; Smith did not participate)

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White v. White, 2021-CA-01074-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision ordering past-due child support for the period of time from when the parties’ youngest child turned 18 until she turned 21, holding that there was no evidence presented that the child was emancipated before turning 21.
(10-0)

Latham v. Latham, 2022-CA-00363-COA (Civil – Domestic Relations)
Affirming chancellor’s divorce judgment, holding that the chancellor did not err in the application of the Albright factors or in finding that one party did not provide a financial disclosure to the court.
(9-1-0: McCarty concurred in part and in the result without separate written opinion)

Other Orders

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (denying rehearing)

Wallace v. State, 2021-CP-01149-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 7, 2023

The ever-prolific Mississippi Court of Appeals handed down nine opinions today. There is a mix of criminal, domestic, and civil cases with a unifying theme of appellees running the table.

Edwards v. State, 2021-KM-01348-COA (Criminal – Misdemeanor)
Affirming conviction of first-offense DUI, holding that there was probable cause for the traffic stop and that law enforcement was not required to inform the defendant of his right to an independent and alternative BAC test.
(10-0)

Harrison v. Howard, 2021-CA-00697-COA (Civil – Domestic Relations)
Affirming judgment of contempt for failure to comply with agreed order of modification of child custody and support, holding that the father waived improper service, that the agreed modification order was voidable but not void and he failed to timely appeal it, and that he waived the issue of termination of the mother’s child support obligation by not timely objecting or appealing.
(7-3-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion.)

Washington v. State, 2021-KA-01041-COA (Criminal – Felony)
Affirming conviction of capital murder and armed robbery, holding that the trial court’s comments to the jury that this was not a death penalty case was appropriate clarification of fact and did not prejudice the jury, that the defendant did not prove that the State’s loss of a video lineup was not bad faith, that there was no proof that inadmissible portions of video testimony were played to the jury and so it is presumed that the trial court’s order sustaining an objection to the inadmissible testimony was heeded, and that if admitting a handgun into evidence was error it was invited by the defendant who introduced it.
(7-3-0: Wilson, McCarty, and Emfinger concur in part and in the result without separate written opinion.)

Pace v. State, 2022-KA-00046-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court erred in admitting photos without a proper foundation but the error was harmless, that the defendant waived the argument that the State made an improper comment during closing by not objecting, and that the trial court did not err in refusing the defendant’s self-defense instruction.
(7-2-0: Wilson and Greenlee concurred in part and in the result without separate written opinion, Smith did not participate.)

Brandon v. State, 2021-KA-01239-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon upon receipt of a Lindsey brief and a review of the record finding no arguable issues for appeal.
(10-0)

Lofton v. Lofton, 2021-CA-00035-COA (Civil – Real Property)
Affirming judgment in a fraudulent-transfer of real and personal property lawsuit that is tangential to a pending divorce action, holding that the chancery court did not abuse its discretion in determining that the UFTA supported a finding of fraud or in awarding the prevailing party attorney’s fees.
(9-1-0: Westbrooks concurred in the result only.)

NOTE – This is an interesting and fact-bound decision discussing the UFTA.

Mack v. State, 2021-CA-01060-COA (Civil – Other)
Affirming denial of expungement, holding that the trial court did not err in finding that the plaintiff’s conviction was related to his official duties as a police officer.
(10-0)

Clark v. Tippah County Dept. of Child Protection Services, 2021-CP-01209-COA (Civil – Custody)
Affirming judgment terminating parental rights, holding that the mother’s due process claims were procedurally barred and without merit and that the chancellor did not err in terminating parental rights.
(7-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only; Greenlee did not participate.)

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (Civil – Contract)
Affirming chancery court’s judgment that the school district breached 16th section lease terms regarding rent adjustments, holding that the chancery court had subject matter jurisdiction, applied the correct standard of review, did not err in finding no material breach by appellees, did not err in overturning the county board’s ruling, and did not err in denying attorney’s fees to the appellant.
(10-0)

Other Orders

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (denying rehearing)

Belmer v. State, 2021-CP-00398-COA (denying rehearing)

Davis v. State, 2021-KA-00593-COA (denying rehearing)

Howard Industries, Inc. v. Hayes, 2021-WC-00694-COA (denying rehearing)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of November 29, 2022

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)

Hand Down List

Mississippi Court of Appeals Decisions of November 22, 2022

The Mississippi Court of Appeals handed down six opinions before making a break for the turkey this week. There is a custody case reviewing a contempt order related to visitation rights, a civil asset forfeiture case, a previously-decided MTCA wrongful death case with a substituted opinion, a real property contract case with a claim by the would-be purchaser for specific performance or damages, and a couple of PCR cases.

Kay v. Kay, 2021-CA-01377-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancery court’s contempt ruling, holding that there was substantial credible evidence supporting the finding of the father willfully failed to comply with visitation guidelines and denied the mother visitation rights but reversing the part of the order directing the children to report to jail if they chose not participate in future scheduled visitation with their mother.
(10-0)

McDonald v. State, 2021-CP-01040-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the circuit court had jurisdiction to resentence the plaintiff and that there was no merit to the claims that the guilty plea was not voluntary or for ineffective assistance of counsel.
(1o-0)

Parker v. State, 2021-CP-01102-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the plaintiff did not overcome the time bar, there was no merit to his claims that he was wrongly sentenced as a habitual offender, and the illegal-sentence claim was waived by meritless anyway.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Forty-One Thousand Eighty Dollars v. State, 2021-CA-00692-COA (Civil – Other/Civil Asset Forfeiture)
Affirming seizure of case, holding that the funds were subject to forfeiture, the argument that the K-9 alerted to the cash because the case was contaminated was unpersuasive, and that the forfeiture was not grossly disproportionate.
(8-1-0: Judge Westbrooks concurred in the result only without separate written opinion; Judge Emfinger did not participate.)

Simmons v. Jackson County, Mississippi, 2020-CA-01014-COA (Civil – Wrongful Death)
Denying a motion for rehearing but substituting a new opinion, but still affirming circuit court’s ruling that the county bore no responsibility for a driver’s fatal accident that occurred when his vehicle left the road and struck a culvert, holding that there was sufficient evidence to support the circuit court’s finding that the driver’s negligence in failing to exercise vigilant caution as he drove through a work zone was the sole proximate cause of the accident.
(7-3: Judge Westbrooks dissented, joined by Judge Carlton and Judge McDonald.)

NOTE – Since the old opinion is no longer available, I am not sure what changed. Apparently what I took away as the core holding did not change because my prior summary still seems to fairly characterize the opinion.

Haidar v. Margetta, 2021-CA-00683-COA (Civil – Contract)
Reversing the chancery court’s dismissal of a purchaser’s claim for specific performance or damages after the seller refused to honor the contract after the initial closing date passed, holding that time is not automatically of the essence in real estate transactions and there was no evidence in the record to establish that time was of the essence here.
(6-1-3: Judge Westbrooks concurred in part and in the result without separate written opinion; Judge Greenlee dissented, joined by Chief Judge Barnes and Judge Carlton, and joined in part by Judge Westbrooks)

Other Orders

Murry v. State, 2020-KA-01363-COA (denying rehearing)

Wilson v. Lexington Manner Senior Care, LLC, 2021-CA-00072-COA (denying rehearing)

Wilson v. City of Greenville, 2021-CA-00316-COA (denying rehearing)

White v. White, 2021-CP-00333-COA (denying rehearing)

Beasley v. State, 2021-CA-00653-COA (denying rehearing)

Mitchell v. MDES, 2021-CC-00795-COA (denying pro se motion for rehearing as untimely)

Norwood v. State, 2021-CA-00802-COA (denying rehearing)

Patrick v. State, 2022-TS-00683-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of July 19, 2022

We are back in action! The Mississippi Court of Appeals handed down six opinions today after their summer break. These cover several appeals from criminal convictions, a termination of parental rights case, and an MTCA case with thorny statute of limitations computation, and PCR.

Bullock v. Mississippi Department of Child Protective Services, 2020-CA-00966-COA (Civil – Custody)
Affirming the judgment of the youth court terminating the plaintiff’s parental rights to her four children, holding that that the youth court’s decision based upon multiple, independently-sufficient statutory grounds was supported by clear and convincing evidence including evidence that one of the children had suffered severe physical, emotional, and mental abuse, and that this abuse of the one child was sufficient to support the termination of parental rights as to all four children. The Court of Appeals also held that there was no evidence that the GAL was unfair or biased.
(10-0)

Alvarado v. State, 2021-KA-00566-COA (Criminal – Felony/First-Degree Murder/Attempted First-Degree Murder)
Affirming conviction of first-degree murder and attempted first-degree murder, holding that the evidence of first-degree murder (that included surveillance footage of the defendant gunning down the victim in a gas station) and evidence of attempted first-degree murder (video showing the defendant exchanging gunfire with a second person after shooting the victim) was sufficient and that the verdict was not against the weight of the evidence.
(10-0)

Lopez v. State, 2021-CP-00331-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff’s guilty plead waived the alleged violation of his constitutional rights and that the plaintiff’s claims of ineffective assistance were waived and meritless.
(7-3-0: Judge Westbrooks concurred in part and in the result with separate written opinion, joined in part by Judge McDonald and Judge McCarty; Chief Judge Barnes concurred in result only without separate written opinion; Judge McDonald concurred in result only with separate written opinion, joined by Chief Judge Barnes.)

Keever v. The Board of Trustees for Mississippi Institutes of Higher Learning, 2021-SA-00036-COA (Civil – Personal Injury/MTCA/statute of limitations)
Reversing the circuit court’s dismissal of the complaint on statute of limitations grounds, holding that this, the plaintiff’s second lawsuit asserting an MTCA claim, was not barred by the statute of limitations because the statute of limitations was tolled during the pendency of the first lawsuit that was dismissed without prejudice (from the filing of the complaint to the issuance of the appellate mandate) and for another 95 days after a notice of claim for the second lawsuit was served. The Court of Appeals also held that a “stipulation of voluntary dismissal” of the first complaint after the defendants had filed answers was of no effect, that the complaint could not be dismissed based on the discretionary-function exemption, and that IHL is not entitled to a dismissal at this early stage.
(10-0)

Practice Point – Here is the timeline of key events, which my brain requires in order to process opinions like this:

  • March 8, 2013 – Alleged injury
  • March 3, 2014 – Plaintiff sent notice of claim
  • March 7, 2014 First Complaint filed (this complaint was dismissed by the circuit court for failure to comply with pre-suit requirements and the dismissal was appealed and affirmed by the MS Court of Appeals)
  • February 6, 2020 – MS Supreme Court denied cert
  • February 18, 2020 – Ineffective “Stipulation of Voluntary Dismissal” filed
  • February 18, 2020 – Notice of claim letters sent (this tolled the statute, which was already being tolled during the pendency of the first lawsuit, another 95 days)
  • February 27, 2020 – Appellate mandate issued
  • May 26, 2020 – Second lawsuit filed on the last possible day

And what would stressful, statute of limitations computation party be without the last day falling on a Saturday, followed by a legal holiday?

Garlington v. State, 2020-KA-00392-COA (Criminal – Felony/Sexual Battery)
Affirming the conviction of one count of sexual battery against a minor, holding that the evidence was sufficient to support a finding that the elements of the crime were proven and to allow the jury to infer that the abuse occurred within the time frame stated in the indictment despite an alleged variance in the dates in the indictment and the proof at trial; there was no error in allowing the minor victim’s out-of-court statements under the tender years exception; no error in allowing the State to amend the indictment; no error in overruling the defendant’s Batson challenges; no error in failing to allow evidence of alleged sexual misconduct of the minor victim’s father; no Confrontation Clause violation by admitting lab results without a witness from the lab testifying at trial; no error in prohibiting Defendant’s expert from referring to certain materials that he had relied upon but had not produced to the State; no error in precluded testimony from Defendant’s would-be character witness; no Brady violation in allowing a rebuttal expert to testify; and there was no error in omitting the time frame of the abuse from the jury instructions setting forth the elements of the crime.
(7-3-0: Judge Wilson, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion.)

NOTE – This is a 58-page, fact-intensive majority opinion.

Jenkins v. State, 2021-KA-00145-COA (Criminal – Felony)
Affirming conviction of trafficking at least 1kg of marijuana with intent to sell, holding that that was no Fourth Amendment violation in the circuit court’s denial of the defendant’s motion to suppress evidence obtained from search warrants for his house and vehicle or his motion and no error in denying the defendant’s motion to suppress his bank records even those records were improperly obtained via subpoena duces tecum.
(8-2-0: Judge Westbrooks concurred specially with separate written opinion, joined by Judge McDonald; Judge McDonald concurred in part and in the result without separate written opinion.)

Other Orders

Fluker v. State, 2021-CP-00162-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of June 14, 2022

The Mississippi Court of Appeals handed down two opinions today. One addresses a custody award against a backdrop of abuse. The other case involves a remainderman’s claim for damages for timber that was clear cut by the holder of a life estate.

Taylor v. Mississippi Department of Child Protective Services, 2020-CA-01194-COA (Civil – Custody)
Affirming the youth court’s decision awarding durable legal custody of a child to his paternal grandparents, holding that the youth court complied with section 43-21-557(1)(c) and (e) and did not err in bypassing reunification between the mother and her children where there was proof of abuse.
(Judge Westbrooks concurred in the result only without separate written opinion.)

Breeland v. Turnage, 2021-CA-00698-COA (Civil – Real Property)
Affirming the chancery court’s decision awarding the remainderman damages for timer that was cut from the property by the holder of a life estate, holding that the plaintiff had standing because he owned the land at the time of the lawsuit and his subsequent sale of the land did not disturb standing, that the landowner was entitled to collect damages for the profit obtained by devaluing his interested in the property via clear cut, and that the chancellor did not err in refusing to admit testimony about a witness’s prior conviction because the appellant did not argue any of the exceptions to Rule 404 to the trial court.
(Judge Wilson concurred in part and in the result without separate written opinion. Judge Carlton did not participate.)

Other Orders

Nowell v. Stewart, 2020-CA-00728-COA (denying rehearing)

Kreppner v. Kreppner, 2021-CA-00006-COA (denying rehearing)

Hand Down List