Tag: Domestic Relations

Mississippi Court of Appeals Decisions of June 17 and June 24, 2025

The Mississippi Court of Appeals handed down a total of sixteen opinions between last week and today. You can read summaries below.

June 17, 2025

Briggs v. Jackson, 2023-CA-01241-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s judgment awarding the mother physical care, custody, and control of two minor children and granting the father visitation rights, holding that the court did not err in its Albright analysis but remanding on the issues of providing coverage of medical expenses, calculation of child support, and visitation schedule.
(10-0: Emfinger for the Court)

Mangum v. State, 2023-KA-01198-COA (Criminal – Felony)
Affirming conviction of multiple counts of touching a child for lustful purposes and sexual battery, holding that the trial court did not err in denying the defendant’s alibi instruction and did not commit plain error in admitting a memory card with photos.
(10-0: McCarty for the Court)

Vaughn v. State, 2024-KA-00012-COA (Criminal – Felony)
Affirming conviction of multiple counts of drive-by-shooting and shooting int a motor vehicle after review of counsel’s Lindsey brief and independent review of the record.
(10-0: McCarty for the Court)

Hines v. PERS, 2023-SA-01400-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s decision affirming the PERS Board of Trustees’ decision to deny on-duty disability retirement benefits, holding that the decision was supported by supported by substantial evidence and was not arbitrary and capricious.
(10-0: Westbrooks for the Court)

Rodriguez v. State, 2023-KA-01159-COA (Criminal – Felony)
Affirming conviction of one count of manslaughter and two counts of second-degree murder, holding that the convictions were supported by sufficient evidence and were not against the overwhelming weight of the evidence, that there was no merit to claims of prosecutorial misconduct, and that the trial court did not abuse its discretion sentencing the defendant to serve forty years on each count to run concurrently.
(9-1-0: Barnes for the Court; Westbrooks concurred in result on without writing)

Other Orders

  • Taylor v. State, 2023-KA-00245-COA (denying rehearing)
  • Wallace v. State, 2023-KA-00721-COA (denying rehearing)

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June 24, 2025

Martin v. Martin, 2024-CA-00228-COA (Civil – Custody)
Affirming the chancellor’s decision denying a petition for custody modification, holding that where there is no finding of an adverse impact there was no need to perform an Albright analysis and modification was not warranted.
(10-0: St. Pe’ for the Court.)

Martin v. Martin, 2024-CA-00222-COA (Civil – Domestic Relations)
Affirming the chancellor’s contempt finding in a divorce proceeding, holding that the chancellor did not err in finding the ex-wife in contempt of the divorce judgment and that she failed to prove her inability to comply and finding no abuse of discretion in the chancellor using contempt power of incarceration to enforce compliance.
(10-0: Weddle for the Court)

Boyd v. Jones County, Mississippi, 2024-CA-00290-COA (Civil – Torts)
Dismissing appeal for want of final, appealable order.
(10-0: McCarty for the Court)

Howard v. Howard, 2023-CA-01029-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings in a divorce proceeding, holding that the chancellor did not err in determining equitable distribution or periodic alimony, or in failing to take into consideration supplemental security income benefits received by the minor child in determining child support.
(10-0: Westbrooks)

McHard, McHard, Anderson & Associates v. Robertson, 2023-CA-00913-COA (Civil – Eminent Domain)
Affirming the chancellor’s decision in an eminent domain case, holding that the petitioner failed to prove that its proposed road was necessary.
(9-0: Carlton for the Court; Emfinger did not participate)

Dowdy v. Grayson, 2023-CA-00985-COA (Civil – Torts)
Affirming on direct appeal and reversing on cross-appeal, holding that the circuit court did not err in granting a directed verdict on a claim for malicious prosecution but holding that the circuit court erred in dismissing a counterclaim of fraud.
(5-2-3: Barnes for the Court; McDonald concurred in part and in the result without writing; Westbrooks concurred in result only without writing; Wilson dissented, joined by Lawrence and Emfinger, and joined in part by Westbrooks)

Brodie v. Brodie, 2023-CA-01397-COA (Civil – Domestic Relations)
Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in reversing its initial ruling under Rule 59(e), in granting divorce on the grounds of habitual cruel and inhuman treatment, or in the division of marital property.
(9-1-0: Barnes for the Court; McCarty concurred in part and in the result without writing)

Gombako-Amos v. Amos, 2023-CA-01253-COA (Civil – Domestic Relations)
Affirming judgment of contempt in a divorce proceeding, holding that the chancellor did not err in finding that the ex-wife was in contempt for failing to comply with a provision of the property settlement agreement.
(6-4: Wilson for the Court; Carlton and Westbrooks concurred in part and dissented in part without writing; McDonald concurred in part and dissented in part, joined by Carlton, Westbrooks, and McCarty)

Bhatti v. Board of Supervisors of Coahoma County, Mississippi, 2024-CA-00027-COA (Civil – Other)
Affirming the circuit court’s dismissal of a claim to remove a bust of Ghandi from courthouse grounds, holding that the circuit court did not err in finding that claim amounted to a mandamus action and that the petitioner lacked standing.
(8-1*-0: Weddle for the Court; Westbrooks specially concurred, joined by McDonald; Barnes did not participate)

Melton v. State, 2024-KM-00337-COA (Criminal – Misdemeanor)
Reversing conviction of misdemeanor child abuse, holding that the defendant did not expressly waive her constitutional right to a jury trial.
(6-4: Wilson for the Court; Emfinger dissented, joined by Carlton, Lawrence, and St. Pe’)

Heirs of Morsi v. JB Hunt Corporation, 2024-WC-00399-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that a claim was not compensable, holding that the MWCC’s finding that the “found dead” presumption did not apply was supported by substantial credible evidence and was neither arbitrary nor capricious.
(6-1-3: Carlton for the Court; McCarty concurred in result only without writing; Westbrooks dissented, joined by McDonald and Lawrence)

Other Orders

  • Taylor v. State, 2023-CA-00738-COA (granting leave to file amicus brief)
  • Craft v. State, 2023-KA-00915-COA (denying rehearing)
  • Johnson v. Cleveland, 2023-CA-01011-COA
  • Foster v. Kovachev, 2023-CP-01030-COA (granting “motion regarding settlement,” dismissing certain parties to the appeal, granting in part appellees’ motion to dismiss appeal and request for sanctions and attorney’s fees, and dismissing appeal)
  • Blumer v. Majestic Homes, LLC, 2024-CA-00163-COA (granting motion for appellate attorney’s fees)

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Mississippi Supreme Court Decisions of June 20, 2024

The Mississippi Supreme Court handed down three opinions on Thursday. The first is a divorce case that discusses property classification and alimony and partially overrules a prior decision. The second decision is a direct criminal appeal appealing the denial of an indigent defendant’s request for funding for defense experts. The third case involves a motion for protective order that was sought to exempt redacted information from a public records request disclosure.

Cassell v. Cassell, 2023-CA-00213-SCT (Civil – Domestic)

Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in the classification of property or award of alimony, that the burden of proof to rebut the presumption of marital property is preponderance of the evidence, and that the party claiming property excluded from marital property has been commingled and transformed into marital property bears the burden of proof by a preponderance of the evidence, and “overrul[ing] Cheatham insofar as it has any bearing on a chancellor’s decision to award alimony and reaffirm the factors enumerated in Ferguson—awarding alimony during the division of the estate—and Armstrong—awarding alimony subsequent to the division of the estate—as the appropriate factors to be considered.”

(9-0)

Harris v. State, NO. 2023-KA-00038-SCT (Criminal – Felony)

Affirming conviction for aggravated DUI, holding that the trial court did not abuse its discretion denying the indigent defendant’s request for funds to retain experts where the requests were insufficient to show a substantial need for state funding or defense experts.

(9-0)

UnitedHealthcare of Mississippi, Inc. v. Amerigroup Mississippi, Inc., 2022-SA-01216-SCT (Civil – Other)

Affirming the chancellor’s decision denying a motion for protective order that sought to exempt redacted information in a qualification United Healthcare had submitted to the Department of Medicaid from disclosure in response to a public records request, holding that United did not meet its burden of showing that the redacted information was either a trade secret or confidential commercial or financial information, and denying United’s request to supplement the record.

(9-0)

Other Orders

Simmons v. State, 2022-CT-01260-SCT (denying cert)

Brown v. State, 2024-M-00013 (granting application for leave to file a motion for post-conviction DNA testing)

Bonner v. The Mississippi Bar, 2024-BD-00142-SCT (granting leave under Mississippi Rule of Discipline 11(b) to resign in good standing from the practice of law in Mississippi)

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Mississippi Court of Appeals Decisions of May 14, 2024

The Mississippi Court of Appeals handed down five opinions this week. There is a domestic/separate maintenance decision, a third-party assault tort case, a direct appeal of a felony conviction, and two PCR cases.

Hasley v. Hasley, 2022-CA-00908-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s decision in a separate maintenance action, holding that there was no abuse of discretion in denying the husband’s motion to dismiss the complaint but that the chancellor erred by converting the temporary orders of spousal support to a final order.
(10-0)

White v. State, 2023-CP-00200-COA (Civil – PCR)
Reversing the circuit court’s revocation of release, holding that because the circuit judge had been the assistant DA who had prosecuted the petitioner the judge was disqualified from presiding over the revocation hearing and that this error was not harmless.
(9-0: Smith did not participate)

Mack v. Merimac Apartments, 2022-CA-00897-COA (Civil – Torts)
Affirming summary judgment in a third-party assault case against an apartment complex, holding that evidence of some crime occurring on and near the subject property was sufficient summary judgment evidence on the element of proximate cause.
(6-3-1: Barnes and Wilson concurred in part and in the judgment without writing; Westbrooks concurred in the result only without writing; McDonald concurred in part and dissented in part without writing)

Galarza v. State, 022-KA-01066-COA (Criminal – Felony)
Affirming conviction of first-degree murder and possession of a firearm by a felon, holding that the circuit court did not abuse its discretion in admitting character evidence of the defendant’s prior convictions for manslaughter.
(7-3-0: Wilson and Emfinger concurred in part and in the result without writing; McCarty concurred in the result only without separate written opinion.)

Smith v. State, 023-CP-00538-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that the petitioner’s claims were procedurally barred and that there was no merit to the petitioner’s arguments that he was entitled to a bifurcated hearing at sentencing and that there was insufficient proof of his prior convictions to warrant his sentencing as a habitual offender.
(10-0)

Other Orders

  • Kuebler v. State, 2020-KA-00027-COA (remanding sua sponte for correction of the record)
  • Okorie v. National Association Wells Fargo Bank, 2022-CP-00043-COA (denying appellant’s pro se “motion to reopen case based on fraudulent settlement agreement”)
  • Moore v. State, 2022-KA-00327-COA (denying rehearing)
  • Edwards v. State, 2022-KA-00719-COA (denying rehearing)
  • Smith v. State, 2022-KA-00852-COA (denying rehearing)
  • Saddler v. State, 2024-TS-00099-COA (sua sponte allowing appeal to proceed)

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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 March 12, 2024

The Mississippi Court of Appeals handed down nine opinions yesterday with something for just about everyone. Read on to find yours.

Estate of Douglas v. Green, 2022-CA-00365-COA (Civil – Wills, Trusts & Estates)
Affirming on direct appeal and cross appeal in an ongoing estate saga, holding that the argument that interest should have been awarded on the return of insurance proceeds was procedurally barred, the limited award of attorney’s fees was within the trial court’s discretion, the trial court did not abuse its discretion in declining to order the return funds to a joint account, and the cross-appeal was procedurally barred because it did not provide any legal support.
(9-1-0: Wilson concurred in result only without separate written opinion)

Stewart v. Stewart, 2022-CA-01122-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision on the father’s motion to modify or terminate child support, holding that the father’s obligation to pay for college under the PSA extended past the children turning 21.
(10-0)

White v. White, 2022-CP-00823-COA (Civil – Real Property)
Affirming in part and reversing in part a chancellor’s decision imposing a constructive trust and ordering the transfer of a parcel of property, reversing the chancery court’s order in limine restricting the defendant from proving affirmative defenses asserted in his answer to the initial complaint and vacating the final judgment imposing a constructive trust, while also affirming the chancery court’s determination that some of the defendant’s payments were voluntary but reversing the determination that all of the payments were voluntary.
(8-2-0: Carlton and Wilson concurred in result only without separate written opinion)

Johnson v. State, 2022-KA-00920-COA (Criminal – Felony)
Affirming conviction of one count of possession of methamphetamine and one count of trafficking Vyvanse, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence.
(8-2-0: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion)

Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision denying benefits, holding that there was substantial evidence to support the MWCC’s finding that the claimant was a traveling employee but that he was not in the course of his employment when he was returning to work after a personal, unauthorized mid-week trip home.
(6-4: Carlton dissented, joined by Lawrence, McCarty, and Smith)

Practice Point – This is a friendly reminder that “course and scope” is not the test for workers’ comp cases. The MWCA casts a wider compensability net than “course and scope.” Generally, compensation must be paid for injuries “arising out of and in the course of employment.” Miss. Code Ann. § 71-3-7.

Bell v. State, 2023-CP-00631-COA (Civil – Other)
Affirming the circuit court’s denial of a petition for expungement, holding that the circuit court did not abuse its discretion because the petitioner failed to present evidence any evidence that he had been rehabilitated.
(8-2-0: Lawrence and Smith concurred in result only without separate written opinion)

Nettles v. Nettles, 2023-CA-00041-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision granting the husband’s motion for involuntary dismissal, holding that the chancellor did not err in finding that the wife did not prove that she was entitled to a divorce based on habitual cruel and inhuman treatment by a preponderance of the evidence.
(6-4: Carlton, Westbrooks, McDonald, and Lawrence dissented without seprate written opinion)

Loving v. MS Eye Care, P.A., 2023-CA-00566-COA (Civil – Personal Injury)
Affirming summary judgment in a premises liability case, holding that there was no evidence that the chair the plaintiff fell backwards on was defective or unreasonably dangerous.
(9-0: Wilson did not participate)

Blackwell v. Reed, 2022-CP-01037-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision denying the ex-husband’s ppetition to terminate or modify alimony, holding that the issues were procedurally barred for failure to cite legal authority or relevant parts of the record and that the appeal otherwise lacked merit.
(10-0)

Other Orders

Kirk v. Newton, 2021-CT-00683-COA (denying motion to amend judgment)

Havercome v. State, 2022-CA-00391-COA (denying rehearing)

Phillips v. MDOC, 2022-SA-00392-COA (denying rehearing)

Agee v. State, 2022-KA-00994-COA (denying pro se “request to proceed with petition for rehearing” and dismissing pro se “request to proceed with petition for post-conviction relief”)

Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (denying rehearing)

Lawson v. State, 2023-TS-01384-COA (dismissing appeal)

Gates v. State, 2024-TS-00074-COA (allowing appeal to proceed upon finding that show-cause response was well taken)

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Double Issue: Mississippi Court of Appeals Decisions of February 6, 2024 and February 13, 2024

[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]

I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.

February 6, 2024

Porter v. State, 2023-CP-00091-COA (Civil – Other)
Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county.
(9-0: Smith did not participate)

Gilmore v. State, 2023-CP-00527-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions.
(9-0: Emfinger did not participate)

Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract)
Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement.
(7-2: Westbrooks and McDonald dissented; Smith did not participate)

Practice Point – Cite the record early and often in your briefs:

Moates v. State, 2022-KA-01062-COA (Criminal – Felony)
Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot.
(10-0)

Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.

Other Orders

Gilbert v. State, 2021-KA-01265-COA (denying rehearing)

Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)

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February 13, 2024

Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence.
(9-1-0: McDonald concurred in part and in the result without separate written opinion)

Allen v. State, 2022-KA-00935-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter.
(10-0)

Netherland v. State, 2022-CP-01236-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim.
(10-0)

Brooks v. State, 2022-KA-01016-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence.
(8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)

EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review.
(8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)

Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property.
(10-0)

Wade v. State, 2022-CA-00370-COA (Civil – PCR)
Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment.
(6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)

Hunter v. State, 2022-CP-01269-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely.
(10-0)

Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies)
Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings.
(3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)

Other Orders

Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)

Odom v. State, 2021-KA-00676-COA (denying rehearing)

Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)

Litton v. Litton, 2022-CA-00712-COA (denying rehearing)

Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)

Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)

Patel v. State, 2022-CA-00985-COA (denying rehearing)

Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)

Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)

Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)

Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)

Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)

Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)

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Mississippi Court of Appeals Decisions of December 12, 2023

The Mississippi Court of Appeals handed down eight decisions on Tuesday that cover a lot of territory. There is something for just about everybody.

Read on down for a case that underscores the importance of keeping up with the weekly hand downs from the Mississippi Supreme Court and Mississippi Court of Appeals. (Subscribing to this blog probably doesn’t hurt you in that endeavor.)

Coogan v. Nationwide Prop. and Cas. Ins. Co., 2022-CA-01063-COA (Civil – Insurance)
Affirming partial summary judgment in policy holders’ suit against their auto liability carrier, holding that the carrier had an arguably reasonable basis to support its claims handling the circuit court did not err in finding that there was no genuine issue of material fact on the bad faith punitive damages claim or the Veasley damages claim.
(6-2-1: McCarty concurred in part and in the result without writing, Westbrooks concurred in result only without writing, McDonald dissented without writing, Lawrence did not participate)

Forrest v. State, 2022-KA-00844-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence and that the court did not admit inadmissible hearsay or irrelevant evidence, and dismissing the ineffective assistance of counsel claim without prejudice.
(10-0)

Hills v. Manns, 2022-CA-00774-COA (Civil – Domestic Relations)
Affirming modification of visitation schedule, holding that the chancellor did not err in not dismissing the mother’s petition on the basis of res judicata, not awarding him attorney’s fees, or in awarding the mother final decision-making authority.
(10-0)

Strong v. Acara Solutions, Inc., 2022-CA-01240-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit on judicial estoppel grounds, holding that the case should be remanded to allow the circuit court to apply the test from a recent Mississippi Supreme Court decision that was handed down after the circuit court’s ruling.
(10-0)

PRACTICE POINT – This case illustrates the importance of keeping up with decisions handed down weekly by Mississippi’s appellate courts. (By extension, this case illustrates why you and all of your friends should subscribe to the Mississippi Appeals Blog – I covered the Saunders decision here when it was handed down.)

PRACTICE POINT (continued): Though the Mississippi Supreme Court’s decision in Saunders was handed down after the summary judgment order was entered, the Supreme Court’s decision in Jones, infra, with its special concurrence, was handed down before the summary judgment proceedings. So the precedential special concurrence in Jones that controlled this case was in force during the summary judgment proceedings. This case serves as a good reminder that special concurrences that garner a majority of the court have the force of precedent. (Another shameless plug: I covered the Jones decision here when it was handed down and specifically discussed the precedential value of the special concurrence.)

Barefield v. Barefield, 2022-CA-00834-COA (Civil – Torts-Other)
Affirming the chancellor’s order requiring the former member/owner of an investment company to pay a forensic accountant’s fee for services during litigation among all members/owners, holding that the exert was court-appointed and the chancellor had discretion to order the party whose actions necessitated the lawsuit to pay the fees.
(8-2-0: McCarty concurred in part and in result without writing; Wilson concurred in result only without writing)

Henderson v. State, 2022-KA-00661-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the evidence was sufficient to support the conviction and the verdict was not against the overwhelming weight of the evidence.
(10-0)

Nichols v. State, 2022-KA-00202-COA (Criminal – Felony)
Reversing conviction of first-degree murder and remanding for new trial, holding that the circuit court erred by failing to instruct the jury on the “castle doctrine,” while also holding that the evidence to support the conviction was legally sufficient so the remedy was a new trial.
(10-0)

Miss. Dept. of Human Servs. v. Johnson, 2022-SA-00605-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision voiding a 2002 paternity and child-support order was void for insufficient service of process, holding that in light of MDHS’s admission that failed to effect proper service under Rule 81(d) MDHS’s arguments under the doctrine of laches, judicial estoppel, unjust enrichment, and public policy failed.
(6-4: Greenlee dissented, joined by Wilson, Lawrence, and Emfinger)

Other Orders

Gillen v. Gillen, 2021-CA-00837-COA (granting motion for appellate attorneys’ fees)

Moore v. State, 2022-KA-00327-COA (granting appearance as counsel, but denying motion to substitute and motion to file supplemental brief)

Diming v. State, 2022-KA-00412-COA (recalling mandate and granting motion for time to file motion for rehearing)

Russell v. State, 2022-KA-00447-COA (recalling mandate and granting motion for time to file motion for rehearing)

Greater Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (denying rehearing)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (denying motion for reconsideration)

Mitchell v. State, 2023-TS-00764-COA (granting motion to proceed out-of-time)

Robinson v. State, 2023-TS-00935-COA (dismissing untimely appeal)

Britton v. State, 2023-TS-01060-COA (dismissing untimely appeal)

Rutherford v. State, 2023-TS-01066-COA (dismissing appeal for lack of appealable judgment)

Rutherford v. State, 2023-TS-01069-COA (dismissing appeal for lack of appealable judgment)

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Mississippi Supreme Court Decisions of September 21, 2023

The Mississippi Supreme Court handed down four opinions today. There is an estates case, a domestic relations case, and a direct criminal appeal. However, the main stage act is a decision on the constitutionality of HB 1020 (and part of that decision was unanimous).

In Re The Estate of Herbert Bernard Ivison, Jr.: Malouf & Malouf, PLLC v. The Estate of Herbert Bernard Ivison, Jr., 2022-CA-00837-SCT (Civil – Wills, Trusts & Estates)
Reversing the chancellor’s ruling that a law firm’s probated claim against a state was barred by statute, holding that the law firm had no reason to pursue further additional legal actions to secure payment of its claim after timely probating the claim.
(8-0: Griffis did not participate.)

West v. West, 2020-CA-01206-SCT consolidated with 2022-CA-00147, 2002-IA-01158, 2008-CA-01700, 2009-CA-01877, 2010-CA-00316 (Civil – Domestic Relations)
Reversed on direct appeal and cross appeal, holding that the chancellor erred in his priority-of-liens analysis and remanding for a determination of whether capital stock certificates conspicuously noted bylaws restrictions, holding that the chancellor erred in failing to address a retroactive child support claim, and holding that because one party engaged in claim-splitting the chancellor’s decision in the consolidated case was reversed with orders to dismiss the case and reinstate a 2008 judgment, writs of garnishment, and writs of execution.
(8-0: Beam did not participate.)

NOTE – This is a 44-page opinion with a lot going on. Be advised that my summary is even broader than usual.

Jenkins v. State, 2022-KA-00754-SCT (Criminal – Felony)
Affirming conviction of DUI (third offense), holding that the trial court did not err in granting a jury instruction that the State was not required to prove that alcohol impaired the defendant’s ability to drive or level of impairment and did not err in refusing the defendant’s instruction on the defendant’s theory of the case where most of the language of that instruction was incorporated into another instruction.
(5-1*-3: Maxwell specially concurred, joined by four justices from the majority: Coleman, Beam, Chamberlin, and Griffis; Kitchens dissented, joined by King.)

NOTE – Justice Maxwell’s concurrence garnered four other votes giving it precedential effect. That special concurrence held that “an instruction like S-8’s potential to confuse weight heavily against giving it in Section (1)(a) common law DUI cases.” The concurrence also noted that even if this instruction was given in error, it would have been harmless due to the overwhelming evidence of guilt.

Here is the text of the instruction at issue:

Saunders v. State, 2023-CA-00584-SCT (Civil – Unconstitutional Statute)
Affirming in part and reversing in part in the HB 1020 case, holding (1) the creation of the CCID inferior court is Section 4 of HB 1020 is constitutional but (2) Section 1’s creation of four “temporary special circuit judges” to be appointed by the Chief Justice to “almost-four-year-terms” violates the Mississippi Constitution’s requirement that circuit judges be elected.
(6-2: Kitchens dissented as to the constitutionality of CCID inferior court, joined by King; Kitchens and King concurred as to the unconstitutionality of appointing the temporary judges; Randolph did not participate)

NOTE – Here is the crux of the reasoning behind the unanimous holding that the appointment process in HB 1020 is unconstitutional:

Other Orders

Moore v. State, 2021-M-00111 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings may result in sanctions)

Hull v. State, 2022-CT-00088-SCT (denying cert)

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Mississippi Supreme Court Decisions of August 10, 2023

The Mississippi Supreme Court handed down two decisions today. Both are domestic relations cases involving with children (custody and visitation). Both are reversals (one reversed the Court of Appeals and affirmed the chancellor while the other reversed the chancellor). Both are authored by Justice Beam.

Blagodirova v. Schrock, 2020-CT-01162-SCT (Civil – Custody)
Reversing a 4-2-4 Court of Appeals decision and reinstating and affirming the chancellor’s ruling in a custody matter, holding that there was substantial evidence in the record to support the chancellor’s finding of a material, substantial, and adverse change in circumstances that warranted custody modification.
(9-0)

NOTE – Here is the Court’s recap of the circumstances at issue:

Brownlee v. Powell, 2022-CA-00196-SCT (Civil – Domestic Relations)
Reversing the chancellor’s decision on an unmarried, non-parent, former live-in partner’s petition for in loco parentis visitation rights, holding that the chancellor erred in finding that the petitioner lacked standing without citing Mississippi law and in disposing of the case under 12(b)(6); that there was no plain error in the chancellor considering text messages without allowing other evidence; and that the chancellor erred in finding the petition frivolous and awarding attorney’s fees.
(6-3-0: Kitchens concurred in result only, joined by King and Griffis, and joined in part by Ishee.)

NOTE – The person seeking visitation won a trip back to the trial court, but I don’t read this opinion as blazing path to victory on the merits. Here are a few excerpts

and…

and…

and…

Other Orders

McPhail v. McPhail, 2020-CA-00739-SCT (denying petition construed by the Court as one for rehearing as untimely)

Moreland v. Spears, 2021-CT-00714-SCT (denying cert)

Norwood v. State, 2021-KA-00903-SCT (denying rehearing)

Brooks v. Jeffreys, 2021-CT-01113-SCT (denying cert)

Simoneaux v. State, 2022-CT-00532-SCT (dismissing cert petition)

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Mississippi Court of Appeals Decisions of August 8, 2023

The Mississippi Court of Appeals handed down ten opinions today. There are a bunch of domestic relations cases, several direct criminal appeals (with some jury instruction issues), a workers’ comp decision addressing the compensability of a COVID diagnosis, and a real property case. I learned about the “fugitive dismissal rule” today and you can too.

Covin v. Covin, 2022-CA-00019-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision finding both parties to a divorce in contempt and denying both parties’ request for attorney’s fees, holding that the chancellor did not err in making a sua sponte clarification of final judgment of divorce, in finding one side in contempt for failing to refinance the marital home and remit the other side’s equitable interest within the court-ordered timeline and for not allowing the other side to retrieve personal property, or in not awarding attorney’s fees despite contempt findings.
(9-1-0: Lawrence concurred in part and in the result sub silentio.)

Carpenter v. State, 2022-KA-00398-COA (Criminal – Felony)
Affirming conviction or attempted murder and possession of a firearm by a felon, holding that it was not plain error to not instruct the jury on the elements of murder and that the instruction give adequately described the crime of attempted murder.
(7-3-0: Wilson and McDonald concurred in part and in the result sub silentio; Westbrooks concurred in the result only sub silentio.)

NOTE – Here are the instructions at issue. S-1 read:

And S-2 read:

White v. State, 2021-KA-00818-COA (Criminal – Felony)
Affirming convictions of jointly-tried defendants for drive-by shooting and shooting into a swelling, holding that the convictions were supported by sufficient evidence and that the verdicts were not against the overwhelming weight of the evidence.
(10-0)

Davis v. State, 2022-KA-00573-COA (Criminal – Felony)
Affirming conviction for armed robbery with sentence enhancement based on the victim’s age, holding that the trial court did not abuse its discretion in denying a motion for new trial based on weight of the evidence arguments or in refusing to give a lesser-included-offense instruction for simple assault.
(10-0)

Gardner v. State, 2021-KA-00886-COA (Criminal – Felony)
Affirming convictions of first-degree murder and attempted murder, holding that the trial court did not err by not striking a jail minister for cause or by finding a child competent to testify, that the issue of limitations put on on cross-examination were waived for failure to object, and that there was no plain error in accepting the State’s jury instruction that did not contain the word “deliberate.”
(6-4-0: Wilson and Emfinger concurred in part and in the result sub silentio; Greenlee and Lawrence concurred in result only sub silentio.)

NOTE – Here is the jury instruction at issue:

Davidson v. Davidson, 2022-CA-00372-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s decision related to property and debt division in a divorce proceeding, holding that the chancellor did not err in classification of marital assets or award of equity in the marital home but the order dividing the debt incurred on a credit card was not sufficiently clear regarding the amount to divide and remanding for a proper finding as to the amount.
(9-1-0: Greenlee concurred in result only sub silentio.)

Jones v. State, 2021-KA-01375-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the verdict was not contrary to the overwhelming weight of the evidence and that the trial court did not err in refusing a jury instruction on the excuse of accident where the defendant never stated he accidentally fired the gun.
(9-1-0: Westbrooks concurred in part and in the result sub silentio.)

West v. The Nichols Center, 2021-WC-01403-COA (Civil – Workers’ Comp)
Affirming the Commission’s finding that a nurse’s COVID diagnosis and resulting blood clot after treating COVID-positive patients was not compensable, holding that there was no lay or medical proof that the claimant contracted COVID at work.
(10-0)

PRACTICE POINT – For those of us who handle workers’ comp claims, this was an interesting footnote regarding the necessity of medical proof. I was anticipating a discussion of whether COVID falls under the statutory definition of an “accidental injury” or an “occupational disease” but this footnote explains why we didn’t get it.

Gillen v. Gillen, 2021-CA-00837-COA (Civil – Domestic Relations)
Dismissing appeal of a contempt order in a divorce proceeding, holding that the party in contempt under the “fugitive dismissal rule” because he had absented himself from the chancery court’s jurisdiction to avoid incarceration for contempt.
(10-0)

PRACTICE POINT – Be sure to add the “fugitive dismissal rule” to your arsenal:

Tubwell v. FV-1, 2021-CP-01345-COA (Civil – Real Property)
Affirming the circuit court’s decision dispossessing the defendant of land he refused to vacate after the property was foreclosed on, holding that the circuit court had jurisdiction, that the circuit court did not err in denying the defendant’s motion to dismiss based on the statute of limitations and adverse possession, that the plaintiff was entitled to summary judgment on the issue of the defendant’s failure to vacate the property, and that the circuit court did not err in dismissing the counterclaim without prejudice.
(3-2-5: McCarty concurred in part/in result sub silentio; Carlton concurred in result only sub silentio; Barnes, Westbrooks, McDonald, and Emfinger concurred in part/dissented in part sub silentio; Wilson concurred in part and dissented in part, joined by Barnes, and Emfinger, and joined in part by Westbrooks, McDonald, and McCarty.)

Other Orders

Lofton v. Lofton, 2021-CT-00035-COA (granting motion for supplemental attorney’s fees)

Brown v. Brown, 2021-CA-00728-COA (dismissing pro se motions for lack of jurisdiction)

Nunn v. State, 2021-KA-01371-COA (denying rehearing)

Brown v. State, 2022-CP-00069-COA (recalling mandate and granting additional rehearing time)

Hamilton v. State, 2022-CP-00069-COA (granting pro se motion for extension of time to file motion for rehearing)

Parker v. MDH, 2022-WC-00552-COA (denying rehearing)

Wells v. State, 2022-KA-00707-COA (granting motion to recall mandate and reinstate appeal)

Fox v. State, 2022-KA-00988-COA (granting motion for leave to file amicus brief)

Pryer v. State, 2023-TS-00568-COA (denying motion for reconsideration)

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