Tag: Domestic Relations

Mississippi Court of Appeals Decisions of April 25, 2023

The Court of Appeals handed down nine opinions today and there is something for just about every practice area. There are two appellate jurisdiction cases, a will contest, a breach of contract case, two direct criminal appeals, a divorce/marital estate division case, a breach of termite contract case, an intra-church lawsuit, and an intentional tort/attorney’s fees case.

Herning v. Lakeview S/C Partners, Ltd., 2021-CA-01427-COA (Civil – Other)
Affirming the circuit court’s dismissal of the defendant’s appeal from summary judgment for the plaintiff entered by the county court, holding that the defendant failed to pay the cost bond for his appeal within the thirty-day time limit so the circuit court lacked jurisdiction.
(8-2: McDonald concurred in part and dissented in part without separate written opinion; Lawrence dissented without separate written opinion.)

Pearson v. Eubanks, 2022-CA-00011-COA (Civil – Wills, Trusts & Estates)
Reversing the chancery court’s dismissal of a will contest, holding that the plaintiffs’ well-pleaded allegations when the filed the will contest provided them stating to contest the will on undue influence grounds.
(10-0)

Lewis v. State, 2021-KA-00472-COA (Criminal – Felony)
Affirming conviction of first and second degree murder, holding:
1. No error in transferring venue that the defendant requested.
2. No error in denying Castle Doctrine and stand-your-ground jury instructions.
3. The doctrine of retroactive misjoinder did not apply.
4. Limiting the defense’s cross-examination of a witness about his pending indictment was harmless error.
5. The objection to the investigator’s testimony about exit wounds was waived.
6. No speedy trial violation (issue raised pro se)
7. No error in denying the motion to quash and dismiss the indictment (issue raised pro se)
8. The State did not commit prosecutorial misconduct (issue raised pro se)
9. No error in allowing the jury to review transcript of the defendant’s recorded statement (issue raised pro se)
10. Evidence was sufficient and the verdict was not against the overwhelming weight of it (issue raised pro se)
(7-3-0: Barnes and Lawrence concurred in part and in the result without separate written opinion; Smith concurred in part and in the result, joined by Barnes and Lawrence.)

Kloss v. Bay Pest Control, Inc., 2021-CA-01117-COA (Civil – Contract)
Affirming summary judgment dismissing breach of termite-prevention contract and negligence claim, holding that the presence of termites alone did not support the breach of contract claim or the negligence claim.
(8-2-0: Westbrooks and McDonald concurred in result only without separate written opinion.)

Underwood v. State, 2021-CP-01123-COA (Civil – Other)
Dismissing direct appeal of a guilty plea for lack of jurisdiction without prejudice.
(10-0)

Christian v. State, 2021-KA-00898-COA (Criminal – Felony)
Affirming conviction of aggravated assault upon receipt of a Lindsey brief and the Court’s review of the record, holding that there were no arguable issues for appeal.
(10-0)

Lewis v. Lewis, 2022-CA-00016-COA (Civil – Domestic Relations)
Affirming the chancery court’s line of demarcation for division of the marital estate and award of alimony, holding that the chancellor was well within her discretion to use a December 2020 temporary order as the line of demarcation rather that the trial date and that the chancellor’s alimony findings were sufficient and her ruling was not ab abuse of discretion.
(10-0)

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (Civil – Other)
Reversing a monetary judgment following a jury trial, holding that the board of trustees of a church lacked standing to sue the church’s senior pastor and chairman of its deacons for breach of fiduciary duties and other claims, holding that the board lacked authority to file the lawsuit without the church members’ approval and lacked authority to maintain suit after a majority of members voted against it.
(5-2-3: Westbrooks and Emfinger concurred in part and in the result without separate written opinion; Greenlee dissented without separate written opinion; Barnes dissented, joined by Greenlee and McDonald)

Herbert v. Herbert, 2021-CA-01291-COA (Civil – Domestic Relations)
Affirming on direct appeal and reversing on cross-appeal, holding that the circuit court erred in granting summary judgment on the grounds the affirmative defense of release because that defense had been waived but affirming on de novo review of the merits of claims for intentional infliction of emotional distress, verbal assault, conversion, fraudulent misrepresentation, defamation, and breach of contract, but reversing the circuit court’s denial of attorney’s fees to the defendant and remanded for further proceedings.
(6-1-2: McDonald concurred in result only without separate written opinion; Carlton concurred in part and dissented in part, joined by McDonald; Emfinger did not participate.)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (denying rehearing)

Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (denying rehearing)

Buchanan v. State, 2021-CP-01069-COA (recalling mandate so motion for rehearing can proceed on merits)

Hand Down Page

Mississippi Court of Appeals Decisions of April 18, 2023

The Court of Appeals handed down six opinions yesterday. There was one direct criminal appeal, a statute of frauds/equitable estoppel case, an equitable distribution case, and three PCR cases.

Beckworth v. Beckworth, 2022-CA-00048-COA (Civil – Other)
Affirming the chancery court’s ruling in a dispute between siblings over the ownership of a home, holding that the brother who had been evicted by the sister failed to prove the elements of equitable estoppel and therefore he could not get past the statute of frauds.
(10-0)

NOTE – I like this statement on credibility calls:

Cleveland v. State, 2021-CA-01130-COA (Civil – PCR)
Affirming summary denial of a motion for PCR, holding that the petitioner’s first claim was meritless and his second claim was time-barred.
(10-0)

Rutledge v. State, 2022-CP-00513-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the claim on appeal was procedurally barred because the petitioner sought to challenge the validity of the conviction but had not presented that issue to the trial court.
(10-0)

Johnson v. Johnson, 2021-CA-01080-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s findings on remand for application of the Ferguson factors to equitable distribution, holding that the chancery court did not abuse its discretion by awarding her lump-sum alimony or 45% of his military pension, but sua sponte addressing an incorrect calculation of the percentage of military survivors benefits awarded and reversing/rendering on that issue.
(10-0)

Jackson v. State, 2022-CP-00325-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that the circuit court properly dismissed the claim for lack of jurisdiction because the petitioner failed to obtain permission from the Supreme Court.
(10-0)

McClusky v. State, 2022-KA-00115-COA (Criminal – Felony)
Affirming conviction of fondling, holding that the trial court did not abuse its discretion in allowing the State to introduce testimony of prior abuse to show lack of mistake or in allowing the state to question the defendant about pornographic material on his cell phone for impeachment purposes.
(10-0)

Other Order

Clark v. Vicksburg Healthcare, LLC, 2021-CA_00173-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of February 28, 2023

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

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

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

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

Other Orders

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

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

Hand Down List

Mississippi Court of Appeals Decisions of October 25, 2022

The Mississippi Court of Appeals handed down six opinions today. There are four criminal cases including one with an interesting issue that arose when only eleven jurors were polled about the verdict. There is also a termination of parental rights case and a PCR case.

Braziel v. State, 2021-KA-00603-COA (Criminal – Felony)
Affirming conviction of burglary upon receipt of a Lindsey brief and in the absence of a pro se brief, holding that there were no arguable issues on appeal.
(9-0: Judge Smith did not participate.)

C.P. v. Lowndes County Dept. of Child Protection Services, 2019-CA-01739-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision terminating parental rights of both natural parents, holding that there was clear and convincing evidence supporting the termination and that reunification efforts were not required, that the GAL’s efforts were “suboptimal” but harmless because there was other sufficient evidence, that it was error to not inform the parents of their rights at the outset of the bearing but it was harmless since the parents were represented and exercised their rights, and that the court did not commit reversible error adopting CPS’s proposed order verbatim without specific findings of fact.
(6-4-0: Judge Wilson and Judge McCarty concurred in part and in the result without separate written opinion; Judge Westbrooks and Judge Lawrence concurred in the result only without separate written opinion.)

Maye v. State, 2020-KA-00100-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by refusing a heat-of-passion manslaughter instruction where the defendant denied killing the victim and there was no evidence to support the instruction and holding that there was no error in admitting a gruesome photo that had probative value.
(6-3: Judge McDonald and Judge Lawrence concurred in part and in the result only without separate written opinion; Judge Westbrooks concurred in result only without separate written opinion.)

O’Quinn v. State, 2021-KA-00534-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that there was no merit to the defendant’s argument that his trial counsel was ineffective for failing to object to multiple instance of hearsay.
(9-1-0: Judge Westbrooks concurred in the result only without separate written opinion.)

ASIDE – The opinion provides a colorful description of events that unfolded in the parking lot immediately after the robbery. It reads like a scene from Raising Arizona, complete with a two-year-old in the getaway car. Here is a portion:

Price v. State, 2019-KA-01890-COA (Criminal – Felony)
Affirming conviction of first-degree murder, two counts of attempted first-degree murder, and possession of a firearm by a felony, holding that the conviction was supported by sufficient evidence and not against the overwhelming evidence, that the defendant could not complaint on appeal about the denial of a motion he opposed at trial, that ineffective assistance claims were denied without prejudice, that the defendant waived arguments that the trial judge should have recused, that there was no error in several jury-related issues including the trial court’s failure to poll all 12 jurors that was cured by retroactively polling the juror at an evidentiary hearing order by the Court of Appeals.
(7-3: Judge McDonald dissented, joined by Judge Westbrooks and joined as to Parts I and II by Judge McCarty. The dissent took issue with the notion that the trial court’s failure to poll all 12 jurors could be cured on remand by a supplemental hearing.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Denying motion for rehearing, withdrawing original opinion, and substituting this modified opinion affirming the denial of a PCR motion, holding that the plaintiff was procedurally barred by res judicata and without merit and that the trial court did not abuse its discretion in refusing to consider evidence of a potential defense for the plaintiff’s 1994 conviction in sentencing him for his 2011 felony evasion.
(5-4: Judge McCarty concurred in part dissented in part; Judge McDonald dissented, joined by Chief Judge Barnes, and Judge Westbrooks, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

Other Orders

Ford v. State, 2020-KA-00278-COA (dismissing untimely pro se motion for rehearing)
Garlington v. State, 2020-KA-00392-COA (denying rehearing)
Towns v. Panola County Board of Supervisors, 2020-CA-01364-COA (denying rehearing)
Skinner v. State, 2021-CA-00080-COA (denying rehearing)
Robinson v. State, 2021-CP-01215-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of September 27, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Orders

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

Hand Down List

Mississippi Court of Appeals Decisions of 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 Court of Appeals Decisions of July 26, 2022

The Mississippi Court of Appeals was short on opinions and long on “housekeeping” orders today. There were two opinions affirming criminal convictions and one chancery matter dealing with division of marital assets, alimony, and custody/visitation. One of the criminal appellants made a scrappy argument that Covid deprived him of due process during his trial.

Boyd v. State, 2021-KA-00066-COA (Criminal – Felony)
Affirming conviction of two counts of murder and one count of aggravated assault stemming from a marijuana deal that went off the rails, holding that the defendant failed to meet his burden of proving ineffective assistance of counsel amounting to a violation of constitutional rights and that review of the record showed affirmatively that his ineffective assistance claims were without merit. The meritless issues raised involved the lack of a request for a jury instruction regarding imperfect self-defense manslaughter, the lack of objection to an investigator’s testimony regarding Facebook messages and the admission of those messages as exhibits, the lack of objection to the State’s cross-examination of the defendant regarding text messages, and the lack of objection to comments by the prosecutor during closing.
(9-1-0)

Walker v. State, 2021-KA-00483-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the evidence was sufficient even without “physical or scientific” evidence, that there was no due process violation in holding trial during the Covid pandemic, that the defendant was procedurally barred from arguing prosecutorial misconduct because he cited no evidence to support it, that there was no error in admitting testimony of two investigators, and that there was no miscarriage of justice in the prosecutor reading only a portion of a jury instruction during closing.
(10-0)

ADDENDUM – COVID and the Law: The defendant argued that fear of Covid created an urgency among the jurors that prevented them from faithfully discharging their sworn duties. This argument failed for want of evidence:

Garner v. Garner, 2021-CA-00038-COA (Civil – Domestic Relations)
Affirming the chancellor’s awards following an irreconcilable differences divorce between an OB/GYN and her husband, rejecting the ex-husband’s arguments on appeal and holding that his award of 48% of the martial property was the product of a proper Ferguson analysis, that there was no error awarding him rehabilitative alimony in lieu of more “accessible cash,” and that chancellor properly applied the Albright factors in awarding sole legal and physical custody to the mother.
(9-1-0)

Other Orders

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (denying rehearing)

Magee v. State, 2020-KA-01378-COA (denying rehearing)

Haynes v. State, 2020-KA-01397-COA (denying rehearing)

Camphor v. State, 2021-CP-00048-COA (recalling mandate and accepting motion for rehearing as timely)

Jones v. State, 2021-KA-01263-COA (dismissing motion to dismiss appeal as untimely and granting appellant’s motion to proceed out-of-time)

Lawrence v. State, 2021-TS-01324-COA (granting appellant’s motion to voluntarily dismiss appeal)

Wilson v. State, 2022-TS-00268-COA (dismissing appeal as untimely)

Harrell v. State, 2022-TS-00276-COA (denying appellant’s pro se motion to reinstate appeal)

Rice v. State, 2022-TS-00400-COA (affirming circuit court’s judgment)

Gutierrez v. State, 2022-TS-00459-COA (dismissing appeal for lack of appealable judgment)

Summaries of the Mississippi Court of Appeals opinions of April 26, 2022

The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.

I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today.
Thanks,
Management

Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence)
Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate.
(Judge Wilson concurred in part and the in the result without separate written opinion.)

Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR)
Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied.
(All judges concurred.)

Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation)
Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence.
(All judges concurred.)

PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:

This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)

Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale)
Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue.
(All judges concurred.)

Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:

NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.

Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation)
Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question.
(All judges concurred.)

Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn)
Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do.
(Judge Smith did not participate, all other judges concurred.)

Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure)
Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right.
(All judges concurred.)

Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence)
Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence.
(All judges concurred.)

Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act)
Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation.
(Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)

NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).

Other Opinions

Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing)
Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of April 5, 2022

After a slow week on the opinion front the Mississippi Court of Appeals is back in action with eight opinions today. There is a domestic relations case dealing with a slew of arguments about child support and child custody, a criminal appeal addressing waiver of potential conflicts with codefendants being represented by a single attorney, a disability opinion, an unemployment opinion, and several PCR opinions.

Wallace v. Wallace, 2020-CA-01148-COA (Civil – Domestic Relations/Custody/Child Support)
Affirming the chancellor’s decisions related to a series of motions related to child support and custody modification:
1. No error in finding the father in arrears for child support for the period of time during which the mother had voluntarily modified the custody arrangement, but not the child support arrangement.
2. No error in finding the father in arrears for nonapyment of daycare and after-school expenses even though the mother “stockpiled” receipts for years rather than presenting them every 30 days as required by the MDA.
3. No error in decision that the mother was not in contempt for withholding visitation in light of the “substantial discretion regarding contempt matters” afforded to chancellors and evidence in the record that visitation was never withheld.
4. No error in no awarding both parents the right to claim the children as dependents for tax purposes because in the absence of specific findings of fact the court assumes the chancellor resolved any factual disputes in favor of the appellee.
5. No error in declining to hold the mother in contempt over the aforementioned stockpiling of daycare/after-school receipts.
6. No error in awarding the mother attorney’s fees in light of the fact that the father was held in contempt.
7. No error in awarding just $1,000 in attorney’s fees to the father for the mother’s violation of the morals clause considering the discretion chancellor’s enjoy on such decisions.
8. No error in ordering the father to provide for the children’s health insurance considering the children’s loss of access to employment-related insurance after the mother’s job was eliminated due to COVID-19.
(Judge Westbrooks and Judge McCarty concurred in part and in the result without separate written opinion)

Magee v. State and Haynes v. State, 2020-KA-01378-COA (Criminal – Felony/Waiver of Potential Conflicts/Dual Representation/Sufficiency of the Evidence/Jury Instructions)
Affirming convictions of co-defendants in consolidated appeals. The court of appeals affirmed the circuit court’s ruling giving the defendants what they asked for by allowing them to waive potential conflicts with being represented by the same attorney, finding that the defendants knowingly and intelligently waived the potential conflicts. The court of appeals held that the evidence was sufficient to support the convictions of both defendants for kidnapping and conspiracy, and the conviction of one defendant for sexual battery. Finally, the court of appeals held that there was no error in denying two of the defendants’ proposed jury instructions or in the circuit court’s sua sponte conspiracy instruction.
(All judges concurred)

Hickerson v. State, 2021-CA-00176-COA (Civil – PCR)
Affirming the circuit court’s denial of a petition for PCR, holding that there was no error in finding that the petition was procedurally deficient for failing to attach competent affidavits and that the claim of ineffective assistance of counsel was meritless.
(Chief Judge Barnes concurred in part and in the result without separate written opinion; Judge Lawrence did not participate)

Barbour v. Singing River Health System Employees’ Retirement Plan and Trust, 2020-CA-01407-COA (Civil – State Board and Agencies/Disability)
Affirming the chancellor’s decision denying disability benefits, holding that to the extent the chancellor’s reference to an incorrect standard of review was in error, it was harmless because the plaintiff was not an “employee” of Singing River at the time of his injury.
(Judge Wilson concurred in part and in result, joined by Judge Smith and Judge Emfinger and in part by Judge McCarty)

Handyman House Techs, LLC v. Mississippi Department of Employment Security, 2021-CC-00029-COA (Civil – State Boards and Agencies/MDES)
Affirming the circuit court’s decision affirming MDES’s determination that an applicant for unemployment benefits was a “employee” rather than an “independent contractor,” holding that the MDES Board of Review’s decision was not arbitrary or capricious.
(Chief Judge Barnes and Judge McCarty concurred in part and in the result without separate written opinion)

Ford v. State, 2020-CP-00372-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR motion, holding that the circuit court correctly ruled that the second PCR motion was an impermissible successive motion.
(All judges concurred)

Thompson v. State, 2020-CP-01236-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR, finding no merit to the claims that the indictment was defective, that the guilty plea was not knowingly and intelligently entered, that the defendant’s attorney had a conflict of interest and provided ineffective assistance of counsel, or that the defendant’s statement and the victim’s statement were coerced.
(All judges concurred)

Booker v. State, 2018-CA-00664-COA (Civil – PCR/Miller)
On rehearing, withdrawing a previous opinion and substituting an opinion holding that the circuit court did not err in determining that the defendant did not have a statutory right to be resentenced under Miller, that the circuit court did not err in denying the defendant’s request for parole eligibility, that the defendant was not deprived of an opportunity to be heard on the issue of rehabilitation, that the defendant failed to prove ineffective assistance of counsel, and that the sentence was not unconstitutional based on arguments about the defendant’s age and IQ.

Other Orders

Walker v. State, 2020-KA-228-COA (denying motion for rehearing)

Hand Down List