Tag: Contract

Mississippi Court of Appeals Decisions of December 6, 2022

The Mississippi Court of Appeals wore me out with nine opinions today. There is something for just about everybody below including crimes, conservatorships, and contracts. One case includes a nightmare scenario where an order of dismissal was entered and the plaintiff’s attorney did not receive notice of it until well after the appeal deadline passed, and there is a special concurrence shining a beacon of hope for litigants who find themselves in this situation.

McLendon v. State, 2022-CP-00057-COA (Civil – PCR)
Affirming summary denial of a motion for post-conviction collateral relief, holding that a proper factual basis was shown as to each element of the offense during the guilty plea.
(10-0)

Davis v. State, 2021-KA-00759-COA (Criminal – Felony)
Affirming convictions of armed robbery and kidnapping, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial based on inadmissible testimony from the police chief that the defendant had been previously incarcerated for burglary.
(7-3-0: Judge McDonald specially concurred, joined by Chief Judge Barnes, Judge Greenlee, and Judge Westbrooks; Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in the result only without separate written opinion.

N0te – Here is how the trial court handled the inadmissible testimony:

Owens v. State, 2021-KA-00887-COA (Criminal – Felony)
Affirming conviction of burglary of a business, holding that the conviction was not against the weight of the evidence .
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Note – The dissent argued that the conviction was against the weight of the evidence and discussed the evidence that was presented. The dissent embedded into the opinion stills from surveillance videos that were shown to the jury was extremely helpful in understanding the evidence that was presented and that was being discussed.

State v. Hudson, 2021-KA-01232-COA (Criminal – Felony)
Dismissing the State’s appeal of a directed verdict of acquittal, holding that the appeal was not authorized by section 99-35-103(b) because the issues on appeal did not present the Court with a pure question of law.
(10-0)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (Civil – Contract)
Reversing summary judgment in favor of the defendants on a breach of contract and fraud complaint related to fees the defendant allegedly owed the plaintiff for recruitment services, holding that there was a fact dispute over the existence of a contract.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Atkins v. Moore, 2021-CA-00780-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s final judgment approving a conservator’s final accounting, holding that the conservator had not misspent or converted funds and that the plaintiff was not otherwise entitled to relief.
(9-1-0: Judge Westbrooks specially concurred, joined by Judge McDonald and joined in part by Judge McCarty)

Note – The Court of Appeals took issue with several aspects of the proceedings below, but found none warranted reversal. Here is the Court’s conclusion:

Another Note – This opinion cites a post by Jane Stroble Miller from Judge Larry Primeaux’s The Better Chancery Court Practice Blog, noting that it “provides a very helpful discussion on the need for ‘vouchers’ to support and accounting.” I fail to see a downside in favorably citing law blogs in judicial opinions.

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (Civil – Contract)
Dismissing the appeal in part and affirming in part, holding that the Court did not have jurisdiction to review the order granting the motion to dismiss where it was not timely filed because counsel did not receive notice of the judgment and dismissing that part of the appeal and affirming the denial of the plaintiff’s motion to reconsider.
(8-2-0: Judge McCarty specially concurred, joined by Judge Greenlee, Judge Westbrooks, Judge McDonald, Judge Lawrence, and Judge Smith; Judge Emfinger concurred in the result only without separate written opinion)

Practice Point – Judge McCarty’s special concurrence highlights a lifeline to litigants in the unfortunate situation of not receiving notice of an appealable judgment until after the deadline to file a notice of appeal:

Note – It is a credit to the appellee and appellee’s counsel for not arguing untimeliness under these circumstances at any point in the process.

DeSoto County v. Vinson, 2021-CC-00864-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of the DeSoto County Board of Supervisors’ approval of a landowner’s application to subdivide a residential lot, holding that the landowner’s failure to accompany the application with names of persons adversely affected or directly interested and their signatures approving the division violated section 17-1-23(4).
(8-1-1: Judge Emfinger concurred in the result only without separate written; Judge Wilson dissented)

Burchett v. State, 2021-KA-00776-COA (Criminal – Felony)
Affirming conviction of murder, holding that there was no evidence to supporting a lesser-included instruction on heat of passion manslaughter.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in part and dissented in part, joined in part by Judge McDonald)

Other Orders

Young v. Freese & Goss, PLLC, 2020-CA-01280-COA (denying rehearing)

Simpson County School District v. Wigley, 2021-CA-00009-COA (denying rehearing)

Boyd v. State, 2021-KA-00066 (denying rehearing)

Nguyen v. Bui, 2021-CP-00538-COA (denying rehearing)

McGilberry v. Ross, 2021-CP-01076 (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of December 1, 2022

The Mississippi Supreme Court handed down two opinions today. The first addresses the applicable standards for taking testimony of minors 12 or older in custody disputes. The other is a 5-4 split on whether a minor can be bound by a noncompete that covers intellectual property and provides for liquidated damages under the exception for contracts “affecting personal property.”

Denham v. Denham, 2020-CT-00675-SCT (Civil – Custody)
Affirming and part and reversing in part a chancellor’s rulings in a custody dispute, holding that the chancellor applied the incorrect legal standard in deciding that the children could not testify and erred by failing to record the in-chambers interviews, that a parent does not have an absolute right to call an unemancipated teenager to testify in open court, and that if one parent is permitted to present evidence of adultery the other parent must also have the opportunity to present such evidence.
(9-0)

NOTE – This opinion has an interesting discussion of the tender years exception as it applies to teenagers on page 13:

Watercolor Salon, LLC v. Hixon, 2021-IA-01151-SCT (Civil – Contract)
Affirming the trial court’s denial of a salon’s motion for TRO and preliminary injunction against a former employee who was 20-years-old when she signed a noncompete, holding that it was not fundamentally a contract affecting personal property and that it was unenforceable since the former employee disaffirmed the contract.
(5-4: Chief Justice Randolph concurred in part and dissented in part, joined by Justice Chamberlin, Justice Ishee, and Justice Griffis.)

NOTE – Here is the Court’s summary of its rationale for its holding that the employment contract was not a contract “affecting personal property”:

Other Orders

Loden v. State, 2002-DP-00282-SCT (granting motion to set execution date)

Brewer v. Bush, 2020-CT-00214-SCT (denying cert)

Gordon v. Dickerson, 2020-CT-00601-SCT (denying rehearing)

Seals v. Stanton, 2020-CA-00741-SCT (denying rehearing)

Pipkin v. State, 2021-CT-00517-SCT (denying cert)

Pickle v. State, 2021-CT-00972-SCT (denying cert)

Luster v. State, 2022-M-00248 (granting application for leave to proceed on filing petition for post-conviction collateral relief in the trial court)

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 Supreme Court Decisions of September 29, 2022

The Mississippi Supreme Court handed down four opinions today. There is a case dealing with an attempt to collect early termination fees after a new board of supervisors terminated a service contract, a case dealing with a thorny procedural issue after a default judgment was entered on a counterclaim in an appeal from justice court, a domestic case regarding the parent’s school choice with potentially broader implications, and a criminal case addressing the weight of the evidence and improper testimony about prior convictions.

Broadband Voice, LLC v. Jefferson County, Mississippi, 2021-CA-01082-SCT (Civil – Contract)
Affirming the circuit court’s dismissal of a phone and internet company’s claim for early termination fees against the county after new slate of supervisors terminated the service contract, holding that under the plain language of the contract the fee was due on the termination date rather than the date of the notice of termination and that the early-termination-fee provision that was negotiated by the prior board was unenforceable against the subsequent board.
(9-0)

Gordon v. Dickerson, 2020-CT-00601-SCT (Civil – Real Property)
Reversing the Court of Appeals, the circuit court, and the county court for denying the landlord’s motion to set aside a default judgment in county court on the tenant’s counterclaim that she asserted on appeal from justice court, holding that the landlord was not in default for purposes of Rule 55 because the counterclaim was filed in violation of Rule 15(a) (re: amendment of pleadings) and Rule 13(k) (re: appeals from justice court) cannot be read to the exclusion of Rule 15(a).
(5-4: Chief Justice Randolph dissented, joined by Justice Kitchens and Justice Ishee; Justice King dissented, joined by Justice Kitchens.)

Practice Point – There is a lot of explanation of the various rules in play in this decision. Bookmark this one and re-read it whenever you handle and appeal from justice court.

Bryant v. Bryant, 2020-CT-00883-SCT (Civil – Domestic Relations)
Affirming the Court of Appeals and the chancellor in ordering that the three minor children attend a specific public school district over the wishes of their father who was made the “final decision maker” on such matters, holding that the language of the property settlement agreement authorized the chancellor use its powers “as superior guardian to make decisions that are in the best interest of children.”
(6-3: Justice Coleman dissented, joined by Justice Maxwell and Justice Griffis; Justice Maxwell wrote a separate dissent joined by Justice Coleman.)

NOTE – The majority and the dissents disagree on a big-picture issue: the relationship between the government’s role in the relationship between parents and children. Take a few minutes and read the majority and both dissents.

Moore v. State, 2021-KA-00420-SCT (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the verdict was not against the overwhelming weight of the evidence because inconsistencies in testimony did not render the verdict implausible and holding that although it was improper for the prosecution to directly elicit testimony about past convictions the error was potentially waived and ultimately harmless.
(6-3-0: Justice Maxwell concurred in part and in the result, joined by Chief Justice Randolph and Justice Beam.)

In Re: Rules Governing Admission to The Mississippi Bar, 89-R-99012-SCT (reappointing Pieter Teeuwissen, Marcie Fyke Baria, and Gwendolyn Baptist-Rucker to three-year terms (11/1/22 through 10/31/25) as members of the Mississippi Board of Bar Admissions)
Millette v. Frazier, 2022-M-00451-SCT (denying petition for permission to appeal and lifting stay of trial court proceedings)

Hand Down List

Mississippi Court of Appeals Decisions of September 27, 2022

The Mississippi Court of Appeals handed down nine opinions today (and one off-cycle opinion last Thursday). There are several criminal cases (including one with a “marijuana made me do it” defense), a real property case, a lawyer money-fight case, a workers’ comp case, a domestic case, and a couple of PCR cases.

Clemts v. State, 2021-KA-01013-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the verdict was not against the overwhelming weight of the evidence which included testimony that the defendant, the victim, and others were in an argument and the victim grabbed the defendant in an effort to get the defendant to leave the house and the defendant “wheeled around” and stabbed the victim in the abdomen.
(10-0)

Edwards v. State, 2021-KA-00261-COA (Criminal – Felony)
Affirming conviction of second-degree murder and the circuit court’s denial of the defendant’s post-trial motion, holding that there was no error in denying the defendant’s lesser-included culpable negligence manslaughter instruction because there was “no evidence in the record that ingesting marijuana caused the defendant to stab a man eight times.”
(10-0)

NOTE – Might need to consider keeping the reefer madness defense on the shelf.

Loblolly Properties LLC v. Le Papillon Homeowner’s Association Inc., 2021-CA-00767-COA (Civil – Real Property)
Affirming the chancery court’s grant of summary judgment in favor of a HOA over restrictive covenants on lots that were purchased after a foreclosure sale, holding that the bank that purchased the properties after foreclosure agreed that the property was bound by the covenants and the subsequent purchaser then obtained the property by warranty deed that provided that the conveyance was subject to restrictive covenants of record.
(3-3-4: Chief Judge Barnes, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson dissented, joined by Judge Greenlee, Judge Lawrence, and Judge Smith)

NOTE – Put this one on your cert watch list. A fractured, 3-3 majority in favor of affirming carried the day, but the four-judge dissent raised some big-picture issues with the majority opinion.

Hollis v. Acoustics, Inc., 2021-WC-01261-COA (Civil – Workers’ Compensation)
Affirming the MWCC’s ruling that the claimant did not sustain a compensable injury, holding that a injuries from a physical fight with racial slurs stemming from a disagreement regarding the relative merits of playing Christian rap versus country music at the worksite was not a work-related injury where the claimant also admitted that he willfully shoved the other person in a manner not necessary for self-defense.
(10-0)

Scott v. Rouse, 2021-CP-01029-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings on several divorce enforcement matters after the ex-husband faked his own death, was apprehended, and then (with the help of his mother) claimed his ex-wife had wrongful retained his property, holding that all issues were procedurally barred because they were either the subject of a prior timely judgment that had not been timely appealed or the pro se appellants had failed to designated an adequate record for their appeal.
(9-0: Judge Lawrence did not participate.)

Wess v. State, 2020-CP-00704-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion asserting an illegal sentence, holding that the plaintiff’s argument that his sentence was illegal because he was not given the opportunity to withdraw his guilty plea was without merit.
(6-3-0: Chief Judge Barnes and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Cooper v. State, 2021-CP-01004-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the “writ of habeas corpus” should have been denied because the plaintiff filed it in the circuit court of the county of incarceration (instead of the county of conviction) which lacked jurisdiction to hear the PCR motion.
(10-0)

Wooten v. State, 2021-KA-00737-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence for shooting her boyfriend, holding that the trial court did not abuse its discretion in allowing evidence that the defendant had previously stabbed her ex-husband because it was admissible to show that the shooting of her boyfriend was not an accident or mistake and that the trial court did not err in (1) denying a motion to continue because the defendant had not availed herself of the court’s “considerable powers” to compel the witness’s attendance, (2) sustaining the State’s objection to some of the defendant’s testimony about alleged threats the victim made a month before the shooting, and (3) not sending law enforcement to obtain a witness’s presence after defense counsel declined the trial court’s offer to issue a bench warrant.
(7-3-0: Judge Wilson and Judge Westbrooks concurred in part and in the result; Judge McDonald concurred in result only without separate written opinion.)

Virden v. Campbell Delong, LLP, 2021-CA-00478-COA (Civil – Contract)
Affirming the trial court’s grant of the defendant’s motion for declaratory judgment, holding that a former partner’s claim for a greater share of proceeds from a settlement he obtained while working for the firm was barred by a written agreement governing the withdrawal, termination, or retirement of any partner from the firm.
(5-5: Judge Wilson dissented, joined by Chief Judge Barnes, Judge Greenlee, Judge Lawrence, and Judge Emfinger.)

NOTE – Here is another one for cert-watch: a lawyer-fight over money and a 5-5 decision that leaves the trial court’s ruling in place.

Davis v. State, 2021-KA-00416-COA (Sept. 22, 2022) (Criminal – Felony)
Affirming conviction of felonious abuse of a vulnerable person, holding that the sufficiency and weight of the evidence was adequate to support the conviction and that the trial court did not err in refusing the defendant’s proposed jury instruction for the offense of simple domestic violence.
(4-1-5: Judge Greenlee concurred in part and in the result without separate written opinion; Chief Judge Barnes concurred in part and dissented in part, joined by Judge Wilson, Judge Westbrooks, Judge McDonald, and Judge Emfinger.)

Other Orders

Trotter v. State, 2020-CA-00094-COA (denying rehearing)
Thomas v. Boyd Biloxi, LLC, 2021-CA-00265-COA (denying rehearing)
McCarty v. State, 2021-KA-00418-COA (dismissing untimely pro se motion for rehearing)
Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (denying appellee’s motion for appellate fees; denying motion for rehearing)
Avery v. The University of Mississippi, 2021-CA-00471-COA (granting motion for correction or modification of the Court’s opinion)
Gilmer v. State, 2022-TS-00257-COA (denying State’s motion to strike notice of appeal as untimely)
Morgan v. State, 2022-TS-00287-COA (dismissing appeal as untimely)
Rutledge v. State, 2022-TS-00677-COA (finding good cause to suspend the appeal deadline so the appeal can proceed on the merits)

Hand Down List

Mississippi Court of Appeals Decisions of August 16, 2022

The Mississippi Court of Appeals handed down seven opinions today. There are three criminal cases that address jury instructions, improper prosecutorial argument, and the admissibility of a letter aimed at the credibility of a State’s witness. There is also a divorce case addressing issues several issues related to alimony, a case deciding whether the right to arbitration was waived, a case seeking to impose a constructive trust on land, and an unemployment case.

Vector Transportation Co. v. Mississippi Department of Employment Security, 2021-CC-00574-COA (Civil – State Board and Agencies)
Affirming the circuit court and MDES Board of Review’s finding that the claimant was entitled to unemployment benefits, holding that the circuit court’s determination that the employer failed to prove that the claimant was discharged for misconduct was not contrary to law, arbitrary or capricious, or not supported by substantial evidence.
(9-0: Chief Judge Barnes did not participate.)

Clay v. State, 2021-KA-00790-COA (Criminal – Felony)
Affirming conviction of uttering a forgery and sentence as a nonviolent habitual offender, holding that the circuit court did not err in refusing the defendant’s mistake-of-fact jury instruction considering all jury instructions read together.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion.)

Murry v. State, 2020-KA-01363-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding (1) that that the prosecutor made an improper “send-a-message” argument during closing but that absent the prosecutor’s improper argument the jury would have found the defendant guilty and (2) that the circuit court did not commit plain error in admitting photographs that the defendant did not object to. The Court of Appeals also declined to decide the defendant’s ineffective assistance of counsel claim and recognized that it was preserved for PCR.
(10-0)

NOTE – Here are the “send-a-message” comments that the Court of Appeals held “[w]ithout question . . . run afoul of the clear direction given by the highest appellate courts in our state and nation” and that the defendant’s attorney did not object to at trial:

Lewis v. State, 2021-KA-00736-COA (Criminal – Felony)
Affirming convictions of conspiracy and armed robbery, holding that the trial court did not err by excluding a letter the defendant sought to introduce that accused a witness of past instances of false accusations because it was hearsay and did not fall within an exception to the inadmissibility of hearsay.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Phang v. Phang, 2021-CA-00752-COA (Civil – Domestic Relations)
Affirming in part and reversing in part several aspects of the chancery court’s judgment of divorce, holding that the chancellor (1) did not err in the award of permanent alimony, (2) erred in not specifying what happened to the alimony obligation if the ex-husband predeceased the ex-wife, (3) erred in requiring the ex-husband to maintain an excessive life insurance policy naming the ex-wife as the beneficiary, (4) erred in ordering the ex-husband to provide annual proof of income to his ex-wife.
(10-0)

White v. White, 2021-CP-00333-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s dismissal of a son’s complaint against his mother seeking damages and to impose a constructive trust on land he had deeded his mother, holding that the circuit court did not err in ruling that the claim for damages was barred by the statute of limitations but did err to the extent it dismissed the claim to recover and impose a constructive trust because the 10-year statute of limitations had not run on those claims when the complaint was filed.
(10-0)

Note – There was a lengthy footnote to remand declaration, discussing the odd situation presented where the Court of Appeals was remanding to the Harrison County Circuit Court a claim seeking to impose a trust on land located in Pike and Lincoln County.

Purvis v. Mar-Jac Poultry MS, LLC, 2021-CA-00039-COA (Civil – Contract)
Affirming the circuit court’s decision granting the defendant’s motion to compel arbitration, holding that the defendant did not waive arbitration by refusing the plaintiff’s pre-suit arbitration demand or by filing a counterclaim contemporaneously with its motion to compel arbitration and holding that the arbitration provision requiring an arbitration demand within 120 days after notice of a claim did not and could not alter the three-year statute of limitations.
(6-1-2: Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Smith did not participate.)

Other Orders

Wofford v. State, 2020-KA-01341-COA (denying rehearing)

Adams v. State, 2020-KA-01383-COA (denying rehearing)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (denying rehearing)

Frost v. State, 2021-CA-00152-COA (denying rehearing)

Edwards v. State, 2021-KA-00259-COA (denying rehearing)

Carter v. Total Foot Care, 2021-CA-00610-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of July 21, 2022

The Mississippi Supreme Court handed down five opinions today after its two-week break. This eclectic array of cases covers a refused jury instructions on the right to stand your ground, medical malpractice, an election contest, a real property purchase, and a request by the AG to be heard on a nonexistent request for litigation expenses.

Williams v. State, 2021-KA-00336-SCT (Criminal – Felony/Self Defense)
Reversing manslaughter conviction in a case where the defendant killed her father by stabbing him during an altercation he initiated, holding that the trial court erroneously refused the defendant’s proposed jury instructions related to her right to stand her ground.
(9-0)

NOTE – Instructions that the defendant had a right to defend herself were held insufficient. Here are the two instructions that the trial court erred by refusing:

Taylor v. Premier Women’s Health, PLLC, 2021-CA-00493-SCT (Civil – Medical Malpractice)
Affirming judgment for the defendants following a unanimous jury verdict for the defendants in a med mal case, holding that the trial court did not err in refusing to grant challenges for cause of jurors who were patients of the defendant doctor and did not err in denying the plaintiff’s motion for JNOV that sought a finding that there was a breach of the standard of care.
(8-0: Chief Justice Randolph did not participate.)

Simmons v. Town of Goodman, 2021-EC-00563-SCT (Civil – Election Contest)
Affirming trial court’s decision upholding the municipal election commission’s finding that the plaintiff did not qualify to run for mayor, holding that the plaintiff did not provide sufficient evidence that he was domiciled in Goodman for the amount of time statutorily required to run for mayor.
(9-0)

SRHS Ambulatory Services, Inc. v. Pinehaven Group, LLC, 2020-CA-01355-SCT (Civil – Contract)
Affirming summary judgment in favor of the defendant/seller of real property and its title insurance carrier, holding that the plaintiff’s purchase of real property was valid and enforceable because ratification of the purchase by the county board of supervisors was not required.
(5-1-3: Justice King concurred in result only without separate written opinion; Justice Griffis dissented, joined by Justice Kitchens and Justice Maxwell.)

Garcia v. State, 2021-IA-00632-SCT (Civil – Death Penalty – Post Conviction)
Vacating the trial court’s order granting the Attorney General’s “Motion for Notice of and an Opportunity to Be Heard on Requests for Litigation Expenses,” holding that the AG’s request was not only premature, but inapplicable because the defendant was represented by attorneys working for the Office of Capital Post-Conviction Counsel who are employed by the state and do not receive compensation or expenses for representing the defendant.
(9-0)

Hand Down List

Mississippi Court of Appeals Decisions of June 21, 2022

The Mississippi Court of Appeals handed down six opinions today. Trial courts and appellees ran the table getting affirmed in all six cases. The opinions include resolution of appeals related to adverse possession, easements, custody, wrongful termination, PCR, and child support.

Jackson v. Mullins, 2021-CP-00495-COA (Civil – Torts)
Affirming summary judgment dismissing a three-ring-circus claims filed by a divorcee against the chancery court master who presided over his divorce case, together with a Mississippi Bar employee and the chairman of the Bar’s Committee on Professional Responsibility who handled a bar complaint the plaintiff filed against the special master, and an MDHS employee, holding that the trial judge who granted summary judgment was not biased and that the special master and the Bar personnel were immune from suit.
(10-0.)

Franco v. Ferrill, 2021-CA-00053-COA (Civil – Real Property/Adverse Possession)
Affirming the chancellor’s rulings in a fact-intensive adverse possession suit, holding that the record supported the chancery court’s findings that (1) the plaintiffs adversely possessed the property, (2) the plaintiffs have proved a prescriptive easement to a lake, (3) the plaintiffs were entitled to $5,000 in damages for trespass and property damage, (4) the defendants must remove a fence of pay for fence removal, and (5) a trespass claim filed by one defendant should be denied.
(Judge McCarty concurred in part and in the result, joined by Judge Lawrence.)

Stuckey v. Stuckey, 2020-CA-00848-COA (Civil – Custody)
Affirming the chancellor’s decision modifying a custody agreement, holding that the record supported (1) the chancellor’s determination that there has been an adverse, material change in circumstances; (2) the chancellor’s weighing of the Albright factors to conclude that primary physical custody should be changed from the mother to the father; (3) the chancellor’s decision modification of child support; and (4) the chancellor’s order requiring the mother to undergo quarterly drug testing.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Wilson concurred in the result only without separate written opinion.)

Leland School District v. Brown, 2021-CA-00157-COA (Civil – Contract/Wrongful Termination)
Affirming on direct appeal and cross-appeal the chancellor’s ruling in a wrongful termination claim, holding (1) that the chancellor properly denied a motion to dismiss for lack of jurisdiction, (2) that the chancellor properly found that the school board’s decision upholding the plaintiff’s termination was not supported by substantial evidence and was arbitrary and capricious, and (3) that the chancellor did not err in denying attorney’s fees.
(10-0.)

Brumfield v. State, 2020-CP-01271-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff did not meet his burden in challenging the timeliness of his probation revocation hearing.
(10-0.)

Kelley v. Zitzelberger, 2021-CA-00119-COA (Civil – Domestic Relations/Child Support/Visitation)
Affirming the chancellor’s decisions pertaining to child support and visitation modifications, holding that (1) the chancellor did not abuse his discretion in denying the father’s request for child support reduction or in refusing to enforce the parties’ oral agreement to reduce child support, (2) the chancellor’s decision that the father was not entitled to have voluntary payments for extracurricular activities credited to his child support arrearage was not clearly erroneous, and (3) the chancellor’s decision modifying visitation was not manifestly wrong or clearly erroneous. The Court of Appeals also denied the mother’s motion for fees and damages under Miss. R. App. 38.
(Judge Emfinger concurred in part and in the result without separate written opinion.)

Other Orders

Mingo v. McComb School District, 2020-CA-00022-COA (denying rehearing)
Butler v. State, 2020-KA-00806-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of May 31, 2022

The Mississippi Court of Appeals handed down five opinions today. Topics include the fate of a living trust that included a languishing cattle farm, unemployment benefits, alleged bolstering of the testimony of a minor who was the victim of sexual battery, alleged MDEQ violations by a lessee, and a PCR motion.

Stapp v. Stapp, 2020-CA-01282-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s rulings in an action asking the court to divide the corpus of a living trust or, in the alternative, to make a distribution to the beneficiaries, holding that the chancellor did not err in (1) requiring that all the farm equipment be auctioned because the beneficiaries were not able to run the farm at issue and the farm had not been profitable since their father’s death, (2) requiring $50,000 to be maintained in an account for unforeseen expenses since real property remained in the trust, (3) not requiring one beneficiary to reimburse the trust for rent and utilities during her occupancy of the farmhouse in the trust and allowing her to live there indefinitely, or (4) not requiring one beneficiary to reimburse the trust for funds she received from cattle sales and not requiring the trust to reimburse the other beneficiary for expenses allegedly incurred for management of the cattle.
(Judge McCarty dissented, arguing that since the documents creating the trusts were not in the record, the trial court modified two trusts without having the terms of the trust or knowing the settlor’s intent.)

Mitchell v. Mississippi Department of Employment Security, 2021-CC-00794-COA (Civil – State Boards and Agencies/MDES)
Affirming the denial of unemployment benefits, holding that there was substantial evidence to support the ALJ’s determination that the claimant’s work-search requirement was not satisfied and declining to review other arguments that were not supported by citations to any authority.
(Judge Westbrooks concurred in part and in the result without separate written opinion.)

Note – I understand why appellate courts often handle arguments not supported by citations to authority by stating that they are waived, but then analyzing them anyway and explaining that they are meritless. In this case, it was refreshing to see the Court of Appeals simply hold that the arguments were waived and leave it at that.

Trotter v. State, 2020-CA-00094-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the circuit court did not err in finding that the plaintiff failed to prove his ineffective assistance of counsel claim and that the circuit court did not abuse its discretion in denying the plaintiff’s request to be resentenced to life without the possibility of parole.
(Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty concurred in result only without separate written opinion.)

Blocton v. State, 2021-KA-00197-COA (Criminal – Felony/Sexual Battery)
Affirming a conviction of sexual battery of a small child, holding (1) the circuit court did not abuse its discretion in allowing the victim’s foster mother, the forensic interviewer, and an investigator to testify about what the victim disclosed to them over the defendant’s argument that this testimony improperly bolstered the victim’s testimony and (2) the circuit court did not commit plain error in allowing the investigator to testify and that there was no merit to the defendant’s claim that his lawyer rendered constitutionally ineffective assistance.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Smith did not participate.)

Biloxi Dock & Ice, LLC v. Back Bay Fuel and Ice, LLC,  2021-CA-00701-COA (Civil – Contract/Lease)
Affirming the circuit court’s decision upholding the county court’s findings in a case arising out of a lease dispute, holding that the county court, as fact-finder, had sufficient evidence to conclude that the purchaser/landowner failed to establish that the lessee had violated MDEQ regulations that would render the lessee in default of the lease.
(All participating judges concurred.)

NOTE – A lessor in this case was named Lesso. Lesso was sometimes referred to as Lessor in the opinion. Had Lesso been the lessee we could have met calamity.

Other Orders

Lambes v. Lambes, 2020-CA-00095-COA (denying rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of April 12, 2022

The Mississippi Court of Appeals handed down two opinions today, one criminal and one civil. The criminal opinion affirmed a conviction, finding no merit on a litany of issues. The civil opinion affirmed summary judgment on a breach of contract claim based on a personal guaranty included in a credit application with a business’s supplier.

Barnes v. State, 2021-KA-00404-COA (Criminal – Felony/Hearsay/Jury Instructions/Rule 404(b))
Affirming conviction of two counts of fondling, holding (1) no error in jury instruction re: sufficiency of unsubstantiated/uncorroborated, but not contradicted/discredited, testimony of victim of a sex crime to support guilty verdict; (2) no error in allowing testimony by investigator “based on professional experience” because not expert opinion; (3) error in allowing hearsay was harmless because the same information was also introduced through admissible source; (4) Rule 404(b) objection re: other students who reported misconduct waived because not made contemporaneously and because it showed why the school initiated an investigation; (5) no error in admitting recorded conversations between victim and defendant where intelligible recording was not produced until the first day of trial (at least partially because defense did not request more time to prepare); (6) no error in admitting purported statement of the defendant over discovery violation objection because the statement had produced in discovery and defense counsel admitted being familiar with it; (7) no merit to ineffective assistance of counsel claim; and (8) the evidence was sufficient to support the convictions. The court of appeals invoked the plain error doctrine to remand the case for correction of a scrivener’s error in the sentencing order.
(Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge McCarty concurred in result only without separate written opinion.)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (Civil – Contract/Personal Guaranty/Affirmative Defenses)
Affirming the circuit court’s grant of summary judgment in favor of the plaintiff/supplier, holding that there was no error in finding that the owners of a company had personally bound themselves to pay their company’s debt to the plaintiff/supplier per the terms of a credit application that contained a personal guaranty. The court of appeals noted that the defendants did not attach affidavits in response to the summary judgment motion that addressed the guaranty:

The court of appeals then held that the plaintiff/supplier–a secured creditor– had no duty to mitigate before filing a lawsuit for damages and that the defendant that asserted fraud in response to the motion for summary judgment had waived that affirmative defense by failing to plead it in his answer to the complaint.
(All judges concurred.)

Other Orders

Hartzler v. Bosarge, 2019-CT-01606 (granting motion to dismiss appeal as interlocutory)

Doe v. Doe, 2020-CA-00853-COA (denying motion for rehearing)

Braswell v. Braswell, 2020-CA-01090-COA (denying motion for rehearing)

Nunn v. State, 2021-TS-01371-COA (granting pro se motion for out-of-time appeal and granting motion to withdraw and substitute counsel)

Hand Down List