Tag: Divorce

Mississippi Court of Appeals Decisions of May 7, 2024

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)

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Mississippi Court of Appeals Decisions of April 30, 2024

The Mississippi Court of Appeals handed down six opinions on Tuesday. I had court in Union County that took me out of the office most of the day Tuesday. I then spent Wednesday making up for being out of the office on Tuesday, as one does. (Obligatory courthouse picture, infra.)

Taylor v. Johnson, 2022-CA-00734-COA (Civil – Personal Injury)
Affirming grant of summary judgment in a car wreck negligence case, holding that there was no competent summary judgment evidence that the defendant proximately caused the collision, and then affirming summary judgment on the direct-negligence and punitive damages claims as moot.
(8-1-1: McDonald concurred in result only without writing; Westbrooks dissented without writing)

Whiddon v. State, 2022-KA-00616-COA (Criminal – Felony)
Affirming conviction of first-degree murder, aggravated assault with a deadly weapon, aggravated assault of a law enforcement officer, and fleeing a law enforcement officer, holding that the trial court did not err in denying motions to dismiss for lack of speedy trial, that the circuit court abused its discretion in excluding videotaped witness statements but that the error was harmless, that the court did not commit reversible error in commenting in front of the jury that a witness was “an excellent investigator,” that the evidence was sufficient to support the verdict, and that the verdict was not against the overwhelming weight of the evidence.
(7-3-0: McDonald and Emfinger concurred in part and in the result without writing; Wilson concurred in the result only without writing)

Turner v. Turner, 2023-CA-00216-COA (Civil – Domestic Relations)
Reversing dismissal of complaint for divorce, holding that the chancellor erred by considering matters outside of the pleadings when ruling on a motion to dismiss under Rule 12(b)(6) without converting it into a motion for summary judgment and providing necessary notice.
(10-0)

Suarez v. State, 2023-KA-00526-COA (Criminal – Felony)
Affirming conviction of burglary of an occupied dwelling under circumstances likely to terrorize the occupant, holding that the evidence was sufficient to support his conviction and that the trial court did not err in refusing the defendant’s lesser-included-offense jury instruction.
(7-3-0: Wilson, McDonald, and McCarty concurred in result only without separate written opinion)

Harris v. State, 2023-CP-00227-COA (Civil – PCR)
Affirming denial of PCR motion following probation revocation, holding that the trial court’s failure to inquire about the petitioner’s ability to pay his fees and assessments was harmless error at most.
(10-0)

Crawford v. East Miss. State Hospital, Inc., 2022-CA-00753-COA (Civil – Wrongful Death)
Affirming judgment in favor of a hospital in a wrongful death lawsuit after bench trial, holding that the circuit court did not err in finding that the plaintiff did not prove the proximate cause element or in denying the plaintiff’s claim for the decedent’s “lifetime damages” because the estate was initially a party before being removed as a party via amendment to the complaint.
(6-2: McCarty concurred in part and dissented in part, joined by Westbrooks; McDonald and Smith did not participate)

Other Orders

  • Mississippi Dept. of Rehab. Servs v. Butler, 2022-CA-00176-COA (rehearing denied)
  • Harris v. Ratcliff, 2022-CA-00596-COA (rehearing denied)
  • Simmons v. State, 2022-KA-01260-COA (rehearing denied)

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Mississippi Court of Appeals Decisions of April 23, 2024

The Mississippi Court of Appeals handed down four opinions yesterday. There is a workers’ comp case, a divorce case, a direct criminal appeal, and an MDOC appeal.

White v. The Home Depot, 2022-WC-00894-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decisions related to alleged work injuries, holding that there was substantial evidence to support the Commission’s denial of the claimant’s request to change physicians, to continue medical treatment, and to receive indemnity benefits as to the first alleged injury, and to support the Commission’s finding that the second alleged injury was not compensable under the MWCA.
(10-0)

Brecheen v. Brecheen, 2022-CA-00190-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings in a divorce proceeding on direct appeal and cross-appeal, holding that the chancellor did not abuse her discretion restricting the place and condition of the father’s visits based on a history of domestic violence, using paycheck stubs from the father’s previous employment to calculate child support, classifying the father’s severance package as marital property, or allowing the father to claim the minor child for tax purposes every other year.
(10-0)

Mai v. State, 2022-KA-00798-COA (Criminal – Felony)
Affirming conviction of fondling a child, holding that the evidence was sufficient to support the conviction, that the circuit court did not err in refusing a jury instruction that was not supported by Mississippi case law, and that the defendant’s failure to obtain a ruling on his objection to the admission of Rule 404(b) waived the argument on appeal.
(9-0: Emfinger did not participate)

Clark v. McDonald, 2022-CP-01296-COA (Civil – State Boards and Agencies)
Affirming a series of affirmances of a finding that an inmate violated a rule against assault by stabbing another inmate with a shiv, holding that there was no violation of the inmate’s procedural due process rights.
(10-0)

Other Orders

  • MDHS v. Johnson, 2022-SA-00605-COA (denying rehearing)
  • Harper v. State, 2022-KA-00659-COA (denying rehearing)
  • Hills v. Manns, 2022-CA-00774-COA (denying rehearing)
  • Barefield v. Barefield, 2022-CA-00834-COA (denying rehearing)
  • Forrest v. State, 2022-KA-00844-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of January 30, 2024

The Mississippi Court of Appeals handed down four opinions today and three of them are at least a partial reversal. The lone affirmance was in an MTCA wrongful-death case stemming from a drowning. A PCR decision was affirmed in part and reversed in part, a post-divorce property division decision was reversed, and a police officer’s conviction of culpable-negligence manslaughter was reversed.

Malone v. State, 2022-CA-00281-COA (Civil – PCR)
Affirming in part and remanding in part the circuit court’s ruling in a PCR matter, holding that the circuit court did not err in rejecting the newly discovered evidence claim but holding that the circuit court erred by not addressing the ineffective assistance of counsel claim with specific findings or conclusions related to that claim.
(9-1-0: Westbrooks concurred in result only without writing)

Stephens v. City of Gulfport, 2022-CA-01008-COA (Civil – Wrongful Death)
Affirming summary judgment in favor of the city on an MTCA case stemming from a drowning, holding that Mississippi law does not “impose a duty on governmental entities to protect or warn against alleged dangerous conditions on property adjacent to property owned or operated by that governmental entity and not caused by the governmental entity” and that, in any event, the MTCA’s open and obvious defense applied to the river and barred the claim.
(9-1-0: Westbrooks concurred in result only without separate written opinion)

Thompson v. Thompson, 2022-CA-01014-COA (Civil – Domestic Relations)
Reversing the chancellor’s property division ruling, holding that the judgment was a final, appealable order and that the chancellor erred in failing to conduct a proper Ferguson analysis.
(10-0)

Fox v. State, 2022-KA-00988-COA (Criminal – Felony)
Reversing conviction of a police officer for culpable-negligence manslaughter against, holding that “[b]ased on the credible evidence presented at trial, no evidence establishes that Fox acted in a grossly negligent manner or that the victim’s death from minor abrasions was reasonably foreseeable under the circumstances,” that the verdict was against the overwhelming weight of the evidence (though this holding was relegated to a footnote) and holding that the circuit court abused its discretion by failing to give an accident or misfortune jury instruction.
(5-1-4: Wilson concurred in part and in the result without writing; Emfinger dissented, joined by Westbrooks, McDonald, and McCarty)

Other Orders

None

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Mississippi Court of Appeals Decisions of January 9, 2024

The Mississippi Court of Appeals handed down four opinions on Tuesday. Notably, not one of the decisions was a clean affirmance. There is a personal injury/MTCA decision, a riparian property damage case, a divorce decision, and an arbitration decision.

Mississippi Department of Rehabilitation Services v. Butler, 2022-CA-00176-COA (Civil – Personal Injury)
Affirming on direct appeal and reversing on cross-appeal in an MTCA car wreck case, holding that the circuit court did err after holding a bench trial and finding that the defendant-driver was in the course and scope of her employment and her negligence was the sole proximate cause of the accident, but holding that the circuit court erred in not awarding damages for the loss of a cell phone and repair of a wedding band and that the circuit court erred in denying the plaintiffs’ motion for additur on the loss-of-consortium claim.
(9-0: Emfinger did not participate)

Hegman v. Adcock, 2022-CA-00501-COA (Civil – Property Damage)
Affirming in part and reversing in part the circuit court’s judgment affirming the county court in a riparian rights case, holding that the circuit court did not err in affirming the denial of the plaintiff’s claim for injunctive relief and damages and the denial of the defendant’s Rule 52 motion, but reversing the circuit court’s decision affirming the court court’s finding the plaintiff liable on a tortious interference with business relations counterclaim and the $95,000 award on that counterclaim.
(8-2-0: Wilson and Emfinger concurred in part and in the result without writing)

Bolivar v. Bolivar, 2022-CA-00640-COA (Civil – Domestic Relations)
Vacating the chancery court’s judgment on a motion for contempt in “highly contentious divorce proceedings,” holding that the movant was required to have a new Rule 81 summons for her fourth contempt motion “regardless of the status of the litigation.”
(10-0)

Coleman v. Stan King Chevrolet, Inc., 2022-CA-00943-COA (Civil – Contract)
Reversing the circuit court’s dismissal of a motion to compel arbitration on the basis that the statute of limitations had run on the underlying claims, holding that where the defendants initially sought to compel arbitration but later obtained a default judgment on their counterclaim in the circuit court, the defendants’ rejection of the plaintiff’s attempt to proceed with arbitration justified relief under Rule 60(b)(6), holding that the circuit court erred in addressing the statute of limitations issue, and remanded for the matter to be restored to the active docket and stayed pending conclusion of arbitration proceedings.
(5-3-2: Lawrence and Smith concurred in part and in the result without writing; McCarty concurred in result only without writing; Greenlee dissented, joined by Enfinger)

NOTE – The proceedings in the circuit court were convoluted. It necessary to read the opinion to get a handle on what took place and the Court’s ruling.

Other Orders

Roberson v. State, 2021-CA-01182-COA (denying rehearing)

Carpenter v. State, 2022-KA-00398-COA (denying rehearing)

Davis v. State, 2022-KA-00573-COA (denying rehearing)

Boyington v. State, 2022-KA-00601-COA (denying rehearing)

Pickle v. State, 2022-CP-00929-COA (denying rehearing)

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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)

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Mississippi Court of Appeals Decisions of October 17, 2023

The Mississippi Court of Appeals handed down three opinions today. There is one divorce case, one direct criminal appeal, and one appeal of the dismissal of a negligence case for the plaintiff’s failure to comply with discovery and discovery-related orders from the circuit court.

Capocaccia v. Capocaccia, 2022-CA-00129-COA (Civil – Domestic Relations)
Reversing the chancellor’s findings on equitable distribution, child support, and college expenses but affirming finding that the father was in contempt, holding that the chancellor erred in the division of the marital estate without referencing or discussion the parties’ debts and assets, erred in awarding child support in excess of the statutory guidelines without specific findings supporting the deviation, and erred in assigning equal responsibility for the children’s college expenses; but that there was no reversible error in denying the father’s motion to continue contempt proceedings or in finding the father in contempt.
(8-2-0: Wilson and McDonald concurred in part and in the result without separate written opinion.)

Russell v. State, 2022-KA-00447-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding there was no error in allowing a State’s witness to narrate events depicted in a surveillance video while it was played to the jury.
(9-1-0: McDonald concurred in part and in the result without separate written opinion.)

McAlpin v. Illinois Central Railroad Company, 2022-CA-00334-COA (Civil – Other)
Affirming the circuit court’s decision granting a motion to dismiss in a negligence suit based on the plaintiff’s failure to heed court-ordered discovery requirements, holding that the trial court did not err in denying the plaintiff’s motion for additional time to comply with the scheduling order that was filed after the court had advised there would be no more extensions and on the date that the court had ordered that additional discovery responses were due and that the trial court did not err in dismissing the case with prejudice for repeated failures to comply with the court’s orders.
(10-0)

PRACTICE POINT – Here is the Court’s analysis of the facts of this case under standard in Beck v. Sapet, 937 So. 2d 945 (Miss. 2006):

Other Orders

Grantham v. Grimm, 2021-CA-01314-COA (denying rehearing)

SDBT Archives LLC v. Penn-Star Insurance Company, 2022-CA-00099-COA (denying rehearing)

Williams v. State, 2022-KA-00100-COA (denying rehearing)

Hamilton v. State, 2022-CP-00217-COA (denying rehearing)

Sanders v. Reeves, 2022-CP-01059-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of September 26, 2023

The Mississippi Court of Appeals handed down nine opinions today. There is something for everyone: tort, real property, divorce, direct criminal appeals, and PCR. Due to volume of paying work and COA output I had to move quickly to get these out, so I expect a higher-than-normal rate of typos.

Odom v. State, 2021-KA-00676-COA (Criminal – Felony)
Affirming conviction of murder, holding that computer printouts of GPS and location data from Google were not properly authenticated and should not have been admitted but that the error was harmless, that the trial court did not abuse its discretion in admitting photos of a vehicle over an authentication objection, that the trial court did not err in excluding paint-transfer evidence and crime lab documents for lack of authenticity, and holding that the conviction was supported by sufficient evidence.
(7-3: Wilson dissented without written opinion; Westbrooks dissented, joined in part by McDonald)

Practice Point – On the authenticity of Google satellite images, the Court noted that the images themselves were not hearsay, but that computer-generated data included on the photos required authentication:

Robb v. McLaughlin, 2021-CA-00672-COA (Civil – Personal Injury)
Affirming a judgment after jury trial in a negligence/infliction of emotional distress/invasion of privacy/defamation/libel case stemming from the defendant posting a false ad for prostitution online with the plaintiff’s phone number, holding that the defendant’s due process rights were not violated, the proceedings were properly bifurcated into compensatory and punitive phases, the plaintiff was not required to produced expert medical testimony on her intentional infliction of emotional distress claim, the damages were not speculative, and the jury instructions were appropriate.
(9-1-0: Wilson concurred in part and in the result without written opinion.)

Practice Point– I have cited the 5th Circuit’s Krieser decisions for the proposition that settlement as to one defendant does not affect apportionment at trial–a proposition that can cut either way. It is nice to have a Mississippi Court of Appeals decision to cite (citing Krieser) for this proposition.

Alexander v. State, 2022-CA-00397-COA (Civil – PCR)
Affirming denial of PCR motion that argued ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous, legally in error, or an abuse of discretion.
(9-1-0: Westbrooks concurred in result only without written opinion)

Bradshaw v. State, 2022-KA-00469-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the indictment was not overly broad to the point it failed to provide sufficient notice under a plain error analysis or on the merits, that there was no violation of the right to speedy trial, and that the trial court did not abuse its discretion in allowing testimony of prior bad acts because it complied with Rule 404(b).
(9-0: Emfinger did not participate.)

Smith v. State, 2022-KA-00664-COA (Criminal – Felony)
Affirming conviction of sexual battery of a child, holding that the trial court did not abuse its discretion by denying the defendant’s motion for continuance because the State’s discovery violations did not result in manifest injustice, that the trial court did not commit plain error by severing the codefendant’s case without a proper motion, and that the lack of error precluded reversal for cumulative error.
(10-0)

Titus v. Stelzer, 2022-CA-01079-COA (Civil – Real Property)
Affirming the chancellor’s order in a suit to set aside a quitclaim deed and to confirm and quiet title, holding that the chancellor did not err in setting aside the quitclaim deed and confirming title through a prior conveyance.
(9-1-0: McCarty concurred in part and in the result without written opinion.)

Gregg v. State, 2022-KA-00485-COA (Criminal – Felony)
Affirming conviction of possession of amphetamine and marijuana, holding that the sole issue on appeal–ineffective assistance of counsel–should be dismissed without prejudice because the record was insufficient to address the issue on direct appeal.
(10-0)

Patel v. State, 2022-CA-00985-COA (Civil – PCR)
Affirming denial of motion to withdraw and vacate a prior admission of guilt in a pretrial intervention after the petitioner learned that even with dismissal and expungement he was not eligible for lawful permanent residence status under the INA, holding that the circuit court properly dismissed the motion for lack of jurisdiction.
(9-0: Emfinger did not participate.)

Gussio v. Gussio, 2020-CA-00785-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in a divorce case granting the mother a divorce and granting her physical and legal custody of the children, holding that the chancellor did not err in the amount of child support awarded, in not imputing income to the mother, in awarding alimony, by denying the father’s motion in limine to exclude evidence of the mother’s attorney’s fees, in awarding attorney’s fees, or in denying motion to alter or amend the judgment and consider new evidence.
(5-5: Wilson concurred in part and dissented in part, joined by Greenlee, Lawrence, Smith, and Emfinger.)

NOTE – Judge Wilson’s partial dissent agreed with the rulings on child support and alimony, but asserted that the award of attorneys’ fees should not be affirmed because the record and the chancellor’s findings on attorneys’ fees were insufficient. I am putting this one on my cert watchlist.

Other Orders

Lynn v. State, 2021-KA-00968-COA (denying rehearing)

Culver v. Culver, 2021-CA-01108-COA (denying rehearing)

Stevenson v. State, 2021-KA-01286-COA (recalling mandate)

Lestrick v. State, 2021-CP-01409-COA (denying motion for additional time to file motion for rehearing)

Covin v. Covin, 2022-COA-00019-COA (denying motion for appellate attorney’s fees)

Amos v. State, 2022-KA-00171-COA (denying motion for enlargement of time to file motion for rehearing)

Pickle v. State, 2022-CP-00929-COA (recalling mandate)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (granting motion to dismiss consolidated appeals as interlocutory)

Miller v. State, 2023-TS-00812-COA (allowing appeal to proceed as timely)

Gardner v. State, 2023-TS-00903-COA (granting motion to consolidate)

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Mississippi Court of Appeals Decisions of July 25, 2023

The Mississippi Court of Appeals handed down five opinions today covering diverse subject matter. There is a zoning exception case, a custody case, a personal injury case considering a grant of summary judgment in a slip-and-fall case, a marital property division case analyzing whether a PSA was ambiguous, and a PCR case with a concurrence discussing Howell/Rowland I/Rowland II.

Keenum v. City of Moss Point, 2021-CA-01044-COA (Civil – Other/Zoning)
Reversing the circuit court’s decision that affirmed the mayor’s decision to approve a special exception to a zoning ordinance, holding that the decision to allow a for-profit development in a residential-zoned area under an exception for “semi-public recreational area” (which was not defined in the ordinance) was reversible error because that reading would render the prohibition against “commercial use” in the ordinance meaningless.
(8-1-0: McDonald concurred in part and in the result without separate written opinion; Lawrence did not participate.)

D.W.K. v. Youth Court of Lincoln County, 2019-CP-00451-COA; 2020-CP-01307-COA (Civil – Custody)
Affirming the youth court’s denial of motions to consider new evidence two years after adjudication of abuse and neglect and placement of five minor children with their maternal aunt, holding that the youth court had jurisdiction; service of process was proper; that the youth court’s decision was not manifestly wrong or erroneous, was based on substantial evidence, and favored the best interest of the children; and that the record on appeal was sufficient.
(10-0)

Babin v. Wendelta, Inc., 2022-CA-00341-COA (Civil – Personal Injury)
Reversing the circuit court’s grant of summary judgment for a fast food restaurant in a slip-and-fall case, holding that “the record contained ample proof” of a dangerous condition where multiple witnesses including restaurant employees testified that the mat was slippery on the date of the fall and that the vestibule where the mat was located held condensation.
(9-1-0: Lawrence concurred in result only WOSWO.)

Practice Point – I have noticed ANSI standards appearing more frequently in my practice. I suspect these two sentences will make their way into more than one brief:

Blanchard v. Blanchard, 2022-CA-00356-COA (Civil – Domestic Relations)
Reversing the chancery court’s ruling based on parol evidence after finding that a Property Settlement Agreement was ambiguous, holding that the PSA was unambiguous and that it entitled the ex-husband to half of the net proceeds of the sale of the former marital home even though the ex-wife had refinanced the home.
(10-0)

Roberson v. State, 2021-CA-01182-COA (Civil – PCR)
Affirming order granting in part and denying in part a PCR motion, holding that the petitioner was not entitled to an exception from the statutory bars and that, in any event, there was no merit to his claim that his plea was involuntary or that his counsel was ineffective.
(6-4-0: Westbrooks, McDonald, and McCarty concurred in part and in the result WOSWO; Wilson concurred in part and in the result, joined by McDonald and McCarty and joined in part by Westbrooks.)

Note – Judge Wilson’s concurrence discussed the state of the “fundamental-rights exception” in light of the Mississippi Supreme Court in Howell overruling Rowland I and Rowland II, and noted that the Supreme Court had not squarely addressed whether the successive motions bar is substantive or procedural:

Other Orders

Buchanan v. State, 2021-CP-01069-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of May 9, 2023

The Mississippi Court of Appeals handed down nine ten opinions today. There are two direct criminal appeals, a divorce case, a bad faith insurance case, an appeal of the suspension of police officers, a construction bid appeal, and two PCR cases.

Durr v. State, 2021-KA-01109-COA (Criminal – Felony)
Affirming conviction of conspiracy to commit armed robbery, capital murder, armed robbery, and aggravated assault, holding that ineffective assistance claim based on Defendant’s representation by the same public defender’s office that represented codefendents who testified against Defendant should be dismissed without prejudice and that if there was error in admitting a codefendant’s affidavit as substantive it was harmless.
(8-2: Westbrooks dissented, joined by McDonald; McDonald also dissented without separate written opinion.)

Hughes v. State, 2021-CP-01241-COA (Civil – PCR)
Affirming denial of PCR motion to vacate PRS revocation and imposition of suspended sentence, holding that the circuit court did not err in ruling based on absconscion.
(10-0)

Sanders v. State, 2022-KA-00351-COA (Criminal – Felony)
Affirming conviction of failing to update sex offender registration, holding based upon review of a Lindsey Brief, review of a pro se brief, and the record that there were no arguable issues that would warrant reversal.
(10-0)

Adams v. City of Jackson, 2021-CC-00454-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s decision affirming the suspension of two officers for engaging in a pursuit while Jackson had a no-pursuit policy, holding that the clear and substantial evidence showed that there was no “pursuit” where an officer initiated a traffic stop and followed the suspect for just over a mile at between 10-20mph.
(8-1: McDonald dissented without separate written opinion; Westbrooks did not participate.)

Davis v. Davis, 2021-CA-01246-COA (Civil – Domestic Relations)
Affirming in part and reversing in part a chancellor’s judgment of divorce, holding there was no error in granting divorce on the grounds of adultery but holding that the chancellor did not properly classify and value certain assets and debts and remanded for proper classification and valuations.
(8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)

PRACTICE POINT – Make the trial court’s job easy! It is good advocacy and it is the humane thing to do.

Watkins v. State, 2021-CP-01301-COA (Civil – PCR)
Affirming denial of PCR motion, holding that all issues were procedurally barred and without merit.
(9-1-0: Emfinger concurred in part and in the result without separate written opinion.)

Groves v. State, 2021-KA-00755-COA (Criminal – Felony)
Affirming conviction of kidnapping and armed robbery, holding that the circuit court did not err in allowing the use of the word “victim” to describe the victim, that the claim of prosecutorial misconduct during closing arguments was procedurally barred and without merit, and that the verdict was supported by substantial evidence and was not against the overwhelming weight of it.
(10-0)/

Gregory Construction Services, Inc. v. Miss. Dept. of Finance and Admin., 2021-SA-00765-COA (Civil – State Boards & Agencies)
Affirming determination that a contractor’s denied construction bid was non-responsive for failing to include a one-page federal form, holding that there were no due process considerations since the plaintiff had no vested property interest in the denied bid and the agencies’ decisions were supported by substantial evidence and reasoning.
(9-0: McCarty did not participate.)

Holloway v. Nat’l Fire & Marine Ins. Co., 2021-CA-01066-COA (Civil – Insurance)
Affirming summary judgment in a bad faith case alleging that a reservation of rights was in bad faith and caused emotional distress even though the carrier ultimately funded a settlement to secure a release of all claims against the insured, holding that the carrier had a legitimate basis for defending under a reservation of rights.
(9-1-0: Westbrooks concurred in result only without separate written opinion.)

Other Orders

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CA-00605-COA (denying rehearing)

Moreland v. Spears, 2021-CA-00714-COA (denying rehearing)

Lamy v. Lamy, 2021-CA-00770-COA (denying rehearing)

Colburn v. State, 2021-KA-00865-COA (denying rehearing)

Brooks v. Jeffreys, 2021-CA-01113-COA (denying rehearing)

Nunn v. State, 2021-KA-01371-COA (recalling mandate to allow pro se motion for rehearing to proceed on the merits)

MS Concrete and Benchmark Ins. Co. v. Harris, 2022-WC-01095-COA (denying motion for rehearing of dismissal of appeal)

Hunter v. State, 2022-TS-01269-COA (granting motion for reconsideration and denying motion for appointment of counsel)

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