Tag: Divorce

Mississippi Court of Appeals Decisions of September 20, 2022

The Mississippi Court of Appeals handed down nine opinions today and only one was PCR! There are three criminal cases (one of which reversed a conviction as to one count on a jury instruction issue). There are two MTCA cases (one reversing summary judgment in a med mal case and one reversing a bench trial judgment finding police-protection immunity), two divorce cases, and an involuntary commitment case.

Johnson v. State, 2021-KA-00571-COA (Criminal – Felony)
Affirming and part and reversing in part a conviction for burglary and automobile theft, holding that the conviction of burglary was supported by sufficient evidence and was not against the overwhelming weight of the evidence but reversing the conviction for auto theft because the jury was not properly instructed as to the value of the stolen vehicle. The case was remanded for retrial on the auto theft count.
(10-0)

Brock v. State, 2021-KA-00739-COA (Criminal – Felony)
Affirming conviction of possession of methamphetamine, holding that even if the defendant could prove that her counsel was ineffective she had not proven that but for such professional errors the result would have been different.
(10-0)

Guinn v. Claiborne, 2021-CP-00997-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision denying husband’s amended complaint for divorce, holding that the chancellor did not commit clear error in determining that the husband had failed to prove the elements for a divorce based on adultery or irreconcilable differences.
(10-0)

W.C. v. J.C., 2021-CA-00237-COA (Civil – Other)
Affirming chancellor’s decision setting aside an agreed order of involuntary commitment and dismissing the action after treatment was completed, holding (1) the agreed order was properly dismissed because the motion to set aside was not untimely, (2) the chancery court did not abuse its discretion in determining that the terms of the order had been substantively complied with, (3) evidence from an professional organization monitoring the treatment for professional licensure was admissible, (4) the chancellor did not err in ruling that the petitioner had no standing to object to the motion to set aside the agreed order, and (5) there was no ground for the chancellor to convene a hearing to “protect the interests of the minor children.”
(9-1-0: Judge Wilson concurred in result only without separate written opinion.)

Smith v. State, 2021-CP-00915-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR motion, holding that the plaintiff did not prove an exception to the statute of limitations, that the sentence was not illegal, and that the indictment was not defective.
(8-2: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion.)

German v. State, 2021-KA-00933-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the circuit court’s finding that the defendant was sane when the crime was committed was supported by substantial evidence and the jury’s finding was not against the overwhelming weight of the evidence, and that the defendant waived issues related to the reliability of a medical expert’s testimony by failing to object at trial.
(9-0: Judge Westbrooks did not participate.)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(10-0)

St. Andrie v. Singing River Health System, 2021-CA-00042-COA (Civil – Medical Malpractice/MTCA)
Reversing the circuit court’s grant of summary judgment dismissing the plaintiff’s independent negligence claim against the hospital on statute of limitations grounds, holding that the plaintiff’s claim that the hospital failed to protect the plaintiff from the doctor’s negligence arose out of the same conduct, transaction, or occurrence as the doctor’s negligence and therefore the independent negligence claims against the hospital related back to the date of the original complaint that asserted an independent negligence claim against the doctor and a vicarious liability claim against the hospital.
(7-2-0: Judge Greenlee concurred in result only, joined by Judge Emfinger and joined in part by Judge McDonald and Judge McCarty; Judge Lawrence did not participate.)

Phillips v. City of Oxford, 2021-CA-00639-COA (Civil – Personal Injury/MTCA)
Reversing the circuit court’s finding after a bench trial that the City was protected by police-protection immunity after an officer’s vehicle crossed an intersection against a red light and struck the plaintiff’s vehicle while the officer was responding to an emergency, holding that the facts of this case met the “exceptional circumstances” requirement for finding reckless disregard and that the officer acted with conscious indifference to the safety of the public and the certain parts of the police chief’s testimony were not credible.
( 5-4: Judge Lawrence dissented, joined by Judge Wilson, Judge Smith, and Judge Emfinger; Judge Greenlee did not participate.)

NOTE– The Court of Appeals declined the appellant’s invitation to adopt a “reckless disregard per se” rule and maintained the totality-of-the-circumstances analysis.

Other Orders

Ellis v. State, 2020-CP-00770-COA (denying rehearing)
Camphor v. State, 2021-CP-00048-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of September 15, 2022

The Mississippi Supreme Court handed down three opinions from very different areas of law without a single dissent today. The first is a criminal case challenging the sufficiency and weight of the evidence. The second deals with the circuit court’s subject matter jurisdiction over a election contest. The third is a divorce appeal dashed on the rocks of 54(b).

Burden v. State, 2021-KA-00782-SCT (Criminal – Felony)
Affirming conviction of aggravated assault and denial of the defendant’s motion for new trial, holding that the evidence including testimony, medical records, and photographs was sufficient to show that the victim suffered serious bodily injury and that the defendant attempted to cause serious bodily injury and the verdict was not against the overwhelming weight of the evidence.
(9-0)

Holliday v. Devaull, 2021-EC-00486-SCT (Election Contest)
Reversing the circuit court’s decision ordering a special election, holding that the circuit court lack subject matter jurisdiction because the plaintiff failed to file a sworn copy of his complaint to the Aberdeen Municipal Democratic Executive Committee within the 10-day statutory period and that the second amended petition did not relate back to the original petition.
(9-0)

Williams v. Williams, 2021-CA-00875-SCT (Civil – Domestic Relations)
Dismissing the appeal, holding that an order granting husband’s motion to enforce the divorce agreement and entering what was called a “final judgment” incorporating the divorce agreement was not a final, appealable judgment because the court had not resolved the wife’s complaint for divorce and the grounds for divorce.
(8-1-0)

Practice Point – Our remorseless foe Rule 54(b) strike again. If anything is left to be decided, be sure the judgment you want to appeal contains the magic language of a Rule 54(b) final judgment.

Other Orders

Miles v. State, 2019-CT-00895-SCT (rehearing denied)
Mingo v. McComb School District, 2020-CT-00022-SCT (denying cert)
Simmons v. Town of Goodman, Mississippi, 2021-EC-00563-SCT (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of May 24, 2022

The Mississippi Court of Appeals handed down nine opinions today. Today’s offerings include a divorce case, a DUI/marijuana case, a personal injury case, a malicious mischief case, a jurisdiction case with Rule 54(b) claiming more victims, and a handful of PCR cases.

Camphor v. State, 2021-CP-00048-COA (Civil – PCR)
Affirming denial of PCR motion asserting ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous.
(All judges concurred.)

Powell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (Civil – Real Property/Appellate Jurisdiction/Rule 54(b))
Dismissing appeal of the chancery court’s order dismissing the debtor’s complaint with prejudice and granting the lender’s counterclaim seeking to proceed with a judicial foreclosure, holding that (1) because the counterclaim for judicial foreclosure was still pending the chancery court’s order did not adjudicate all claims against all parties and (2) the chancery court’s order did not contain the certification required by Rule 54(b).
(All judges concurred.)

Klis v. State, 2021-CA-00349-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion, holding that the circuit court did not err in determining that the motion was time-barred and that his ineffective-assistance of counsel claim did not provide an exception to the bar.
(Judge Smith did not participate.)

Short v. State, 2021-KA-00499-COA (Criminal – Felony/Jury Instructions)
Affirming conviction of malicious mischief, holding that a jury instruction setting forth the elements of malicious mischief did not constructively amend the indictment because the record failed to show the alleged variance and, in light of the lack of objection by the defendant at trial, there was no plain error by the circuit judge.
(All judges concurred.)

Montgomery v. Montgomery, 2020-CP-01135-COA (Civil – Domestic Relations/Divorce/Habitual Cruel and Inhuman Treatment)
Affirming the chancery court’s judgment of divorce and final judgment regarding division of property and other financial matters, holding that the chancery court did not err in granting the husband a divorce on the ground of habitual cruel and inhuman treatment which included throwing items, death threats, and behavior that caused the wife’s family to try to get her to seek medical or psychiatric help. Regarding division of property, the Court of Appeals held that the chancery court did not err in dividing the property as the parties had agreed to. The Court of Appeals handled this case graciously, but appropriately noted that the pro se appellant had “waived consideration of the issues she raises on appeal.”
(All judges concurred.)

NOTE – Hiring an attorney to handle your appeal is generally a good idea. Relatedly, if you can’t find one to take your case, it might be a sign. The appellant in this case represented herself and it did not go well. For example:

Frost v. State, 2021-CA-00152-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s petition for expungement, holding that the circuit court did not err in ruling that it had no jurisdiction.
(Judge Wilson and Judge Emfinger concurred in part and in result without separate written opinion. Judge Smith did not participate.)

Pipkin v. State, 2021-CA-00517-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second motion for PCR, holding that the plaintiff failed to show that he had a procedurally-viable claim or an applicable exception to the procedural bar.
(Judge Wilson and Judge Lawrence concurred in part and in the result without separate written opinion)

Borsi v. State, 2021-KM-00643-COA (Criminal – Misdemeanor/DUI/Marijuana)
Affirming a conviction of DUI of marijuana, holding that the roadblock that led to the defendant’s arrest was for a proper purpose and conducted consistent with MHP’s general practice so there was no Fourth Amendment violation, that the defendant was not under custodial interrogation when he admitted to smoking marijuana so there was no Miranda violation, that the law was properly applied based upon “influence” rather than “impairment,” and that the trial court (in a bench trial) properly relied upon witness testimony and the evidence presented at trial. The defendant did not leave empty-handed, as the Court of Appeals reversed the assessment of an $85.00 transfer fee by the circuit clerk.
(Chief JUdge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)

NOTE – This is the second opinion in the last few weeks where the defendant argued that he might have partaken of marijuana, but he was not impaired by it. And it is the second opinion where the Court of Appeals has held that “influence” is not synonymous with “impairment” in this context. (The other opinion was Briggs v. State summarized here.)

Brewer v. Bush, 2020-CA-00214-COA (Civil – Personal Injury/Jury Instructions)
Affirming a defense verdict in a personal injury lawsuit where the plaintiff was helping the defendant put up a barbed wire fence and a bungee cord snapped and struck the plaintiff in the eye, holding that (1) a rational jury could have found that there was no master-servant relationship or that the tools provided were reasonably safe and that the defendant did not breach any duty owed to the plaintiff, (2) the jury was fairly instructed on the issue of proximate causation, (3) the trial judge did not abuse his discretion by giving the defendant’s instruction on “simple tools,” (4) submitting four verdict forms was not reversible error, and (5) the fact that defendant offered fifteen instructions did not result in prejudice to the plaintiff.
(All judges concurred.)

Practice Point – Fight jury instructions with jury instructions. If you don’t like something about opposing counsel’s jury instructions, propose one that fixes it:

Other Orders

Ladner v. State, 2020-KA-00299-COA (denying rehearing)
Denham v. Denham, 2020-CA-00675-COA (denying rehearing)
Dew v. Harris, 2020-CA-01261-COA (denying rehearing)
Miller v. State, 2021-TS-01412-COA (denying motion to reinstate appeal)
Nelson v. State, 2022-TS-00413-COA (denying appellant’s motion to stay appeal and dismissing appeal without prejudice for lack of final judgment

Hand Down List

Summaries of the Mississippi Supreme Court opinions of March 10, 2022

The Mississippi Supreme Court handed down three opinions today. In a case of first impression, the court held that short term rentals through services like Airbnb and VRBO constitute “residential purposes” rather than “commercial purposes” and thus do not violate restrictive covenants barring use of homes for commercial purposes. The court also reversed the judgment of the Mississippi Court of Appeals and reinstated a conviction for witness intimidation in what started as a voter fraud case in Canton, Mississippi.

Ellis v. Ellis, 2020-CA-00691-SCT (Civil – Domestic Relations/Divorce)
Reversing the chancery court’s order distributing marital assets and awarding alimony and attorneys’ fees, holding that the chancery court lacked jurisdiction to enter the order that was sought by and in favor of the party who was on the receiving end of a judgment of divorce by default in Texas because the chancery court had previously dismissed a prior, Mississippi complaint for divorce and counterclaim for divorce with prejudice.
(Justice King wrote a special concurrence, agreeing fully with the Court’s decision, but writing that Redd v. Redd (In re Conservatorship of Redd),
No. 2019-CA-01281-SCT, 2021 WL 5368656 (Miss. Nov. 18, 2021) was wrongly decided. This opinion was joined by Justice Beam and joined in part by Chief Justice Randolph.)

Rainey v. State, 2019-CT-01651-SCT (Criminal – Felony/Voter Fraud/Witness Intimidation/Eighth Amendment)
Reversing the Mississippi Court of Appeals’ judgment that had reversed a conviction for witness intimidation and a fifteen-year sentence, holding that there was sufficient evidence to support the conviction where there was testimony that the defendant registered two individuals to vote and then gave them $10 for “a round of beer,” later gave one of those individuals a ride to vote and then $10 for lunch, and then, after the voter was questioned by investigators, the defendant visited and confronted the voter about the investigation. The court also held that the fifteen-year sentence did not violate the Eight Amendment.
(Justice King dissented, joined by Justice Kitchens and Justice Coleman.)

Lake Serene Property Owners Association Inc. v. Esplin, 2020-CA-00689-SCT (Civil – Real Property/Restrictive Covenants)
Affirming the chancery court’s finding in a breach of residential covenant case, holding that short-term rentals of private homes through online services such as Airbnb, VRBO, and HomeAway constitute use for “residential purposes” rather than “commercial purposes” in the absence of definitions of those terms in the covenants and holding that the association’s board of directors did not have authority to amend the bylaws in a manner that restricted the owners’ covenant rights to host short-term rentals.
(Justice Ishee concurred in part and dissented in part, joined by Justice Griffis.)

NOTE: This was a case of first impression in Mississippi on the issue of whether short-term rentals through services such as Airbnb constitute “residential purposes.” All nine justices concurred in the holding that short-term rentals do constitute “residential purposes” rather than “commercial purposes.” The court did not dwell on this, but I think it is implicit in the decision that if the covenants had defined “residential purposes” in a way that excluded short-term rentals, or if short-term rentals were otherwise specifically prohibited by the covenants, the result would have been different. In any event, this is a win for hosts and hosting platforms.

Other Orders

Knox v. State, 2014-DR-849-SCT (denying Motion for Leave to File Successive Petition for Post-Conviction Relief and Knox’s First Amended Motion for Leave to File Successor Petition for Post-Conviction Relief are dismissed and Second Amended Motion for Leave to File Successor Petition for Post-Conviction Relief is denied)

Ellis v. Ellis, 2020-CA-691-SCT (denying Motion to Take Judicial Notice of Other Relevant Court Proceedings filed by Joseph Dale Ellis, Sr. and Motion to Take Judicial Notice of Texas Court of Appeals’ Memorandum Opinion, Judgment, and Final Mandate and for Inclusion of Same in Appellate Record filed by Joseph Dale Ellis, Sr.)

Atkins v. Moore, 2021-CA-780 (denying a not otherwise not defined “motion for relief”)

Complete Hand Down List