Tag: Election Contest

Mississippi Supreme Court Decisions of Late

Because of a string of litigation deadlines followed by a blessed week out of the office last week, I am behind on summaries. It has been a relatively slow month for hand downs in terms of volume from the Mississippi Supreme Court, so I am consolidating the last few weeks in this one post.

April 2, 2024 (a bonus Tuesday decision)

Barker v. Ivory, 2024-EC-00347-SCT (Civil – Election Contest)
Affirming the circuit court’s decision finding that a would-be candidate for Alderman was not qualified, holding that issues regarding the validity of the petition to object were procedurally barred and that the trial court’s decision that he failed to satisfy the two-year residency requirement was supported by sufficient evidence in the record.
(9-0)

April 4, 2024

State of Mississippi v. Aldrich, 2022-SA-01088-SCT (Civil – Real Property)
Affirming the chancery court’s ruling in favor of a private landowner in a dispute over whether an acre of Mississippi coastal land was properly designated as State-owned tidelands, holding that the secretary of state had failed to following statutory guidelines in drafting the maps and failed to meet its burden of proof that the artificial filling was not the product of the deposition of oyster shells and dredge spoils.
(7-1-0: Kitchens concurred in part and in the result without writing; Randolph did not participate)

Archie v. State, 2022-KA-00326-SCT (Criminal – Felony)
Affirming convictions of conspiracy and capital murder, holding that the defendant was entitled to an instruction on his alibi theory of defense but that the trial court’s error refusing of that instruction was harmless error, that the trial court did not abuse its discretion in refusing the defendant’s proposed reasonable doubt instruction on the basis that it was cumulative, that the trial court did not err by admitting photos of the defendant that were authenticated by a witness other than the photographer, that the verdicts were not against the overwhelming weight of the evidence, and that the ineffective assistance of counsel claim was without merit.
(5-4: Coleman dissented, joined by Kitchens, King, and Ishee)

NOTE – The dissent asserted that Mississippi law required an alibi instruction and that the failure to give the alibi instruction could not be harmless error.

Hayes v. Thomas,  2023-EC-00229-SCT (Civil – Election Contest)
Reversing the circuit court’s grant of a default judgment a year after an election contest was filed questioning the vote count, holding that a default judgment was not permissible in this general election contest (per section 23-15-951) and that the petitioner’s failure to diligently prosecute her contest required dismissal with prejudice.
(9-0)

April 11, 2024

– No opinions (other orders are below)

April 18, 2024

Robinson v. State, 2023-KA-00184-SCT (Criminal – Felony)
Affirming conviction of heat-of-passion manslaughter, holding that whether trial counsel was ineffective for failing to request a right-to-stand-your-ground jury instruction could not be analyzed on direct appeal based on direct appeal and holding that the State’s evidence was sufficient disprove the defendant’s self-defense claim.
(9-0)

Other Orders

April 4, 2024

  • Odom v. State, 2021-CT-00676-SCT (denying cert)
  • D.W. v. C.E., 2021-IA-01075-SCT (dismissing interloc as moot)
  • Hobby v. Ott, 2021-CT-01305-SCT (denying cert)
  • Pickle v. State, 2022-CT-00929-SCT (dismissing cert petition as untimely)

April 11, 2024

  • Smith v. State, 2020-CT-00774-SCT (denying cert)
  • Carpenter v. State, 2022-CT-00398-SCT (denying cert)
  • Hall v. State, 2022-CT-01097-SCT (denying cert)
  • Pryer v. State, 2023-M-01230-SCT (denying pro se petition to appeal)
  • Bennett v. Bennett, 2023-TS-01385 (ordering compliance with MRAP 10(b)(4))

April 18, 2024

  • Roberson v. State, 2021-CT-01182-SCT (denying cert)
  • Michael P. v. Thomas, 2021-CT-01288-SCT (denying cert)
  • Bennett v. State, 2021-CA-01313-SCT (denying rehearing)
  • Tubwell v. FV-1, Inc., 2021-CT-01345-SCT (granting pro se cert petition)
  • In Re: Administrative Orders of the Supreme Court of Mississippi, 2024-AD-00001-SCT (directing the disbursement of $138,454.56 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)
  • Reeves v. Gary, 2024-EC-00406-SCT (granting motion to vacate response a response and the circuit court’s order in an election contest)

Hand Down Pages

Mississippi Supreme Court Decisions of June 8, 2023

The Mississippi Supreme Court handed down four opinions today. Three are direct appeals of criminal convictions and one is an election contest. One of the criminal appeals is an appeal of a capital murder conviction. The election contest decision settles who will appear on the Mississippi Democratic Primary’s ballot in the upcoming gubernatorial race.

Clanton v. State, 2021-KA-01159-SCT (Criminal – Felony)
Affirming conviction of possession of meth found subsequent to a traffic stop, holding that the trial court erred in admitting photos of money seized from the defendant but the error was harmless; that the trial court did not err in allowing testimony and photos about marijuana found in the defendant’s vehicle, in allowing the officer to testimony that he thought the pills were ecstasy, or in overruling the defendant’s objection to alleged misstatement of the evidence during closing; and that the verdict was supported by evidence and not against the overwhelming weight of it.
(9-0)

Harvey v. State, 2022-KA-00660-SCT (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the trial court did not err by prohibiting the defendant from eliciting impeachment testimony from a witness about specific instances of conduct by the victim and that the wording of a limiting jury instruction regarding prior bad acts was not error.
(9-0)

Chisholm v. State, 2021-KA-01254-SCT (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court was within its discretion to admit the firearm and the restraining order over objection, to admit evidence of prior bad acts, and to deny a motion for mistrial after striking the defense’s psychology expert, that the trial court did not err in denying a heat-of-passion instruction, that the defendant failed to prove a Brady violation with respect to his cell phone records and the contents of his journal and laptop; that the indictment was not defective or constructively amended as the defendant argued based on alleged lack of specificity as to burglary; and that the verdict was supported by sufficient evidence and not against the overwhelming weight of it.
(9-0)

The Mississippi State Democratic Party v. Hickingbottom, 2023-EC-00611-SCT (Civil – Election Contest)
Reversing the circuit court’s order to place a gubernatorial primary candidate on the ballot, holding that the would-be candidate failed to timely file his petition for review of his disqualification by the Party.
(8-0: Griffis did not participate.)

NOTE – The Supreme Court shut this one down procedurally in light of the upcoming election:

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing Hon. Eleanor J. (Faye) Peterson, Circuit Judge, as a member of the Complaint Tribunal)

Rules for Court Reporters, 89-R-99021-SCT (amending Rule I.(U) of the Rules and Regulations Governing Certified Court Reporters)

Davis v. State, 2021-CT-00759 (denying cert)

Durant Healthcare, LLC v. Garrette, 2021-CT-00823-SCT (denying cert)

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Mississippi Supreme Court Decisions of June 1, 2023

The Mississippi Supreme Court handed down seven opinions today, and covered a lot of territory in doing so. There is a breach of contract/attorney’s fees case, a fraudulent joinder venue case, a youth court venue case, a money dispute between a school board and school district, a direct criminal appeal, a death penalty PCR case, and an election contest. [There was a lot to get through today and I got a late start. I am sure there is a typo or two below that I will get around to catching and correcting.]

Healy v. AT&T Services, Inc., 2021-CP-01411-SCT (Civil – Other)
Affirming in part and reversing in part the chancellor’s decision in a breach of contract claim filed by a lawyer/law firm due to reassignment of a 1-800 number, holding that the chancellor did not err in awarding nominal damages of $500 where there was inadequate proof of actual damages but reversing the chancellor’s exclusion of attorney’s fees in the award of sanctions for discovery violations and remanded for determination of the appropriate amount.
(9-0)

Practice Point – Footnote 3 of this opinion is a cautionary tale for those submitted evidence in the record at the trial court level and those reviewing the clerk’s record during the appeal:

The plaintiff in this case was seeking lost profits, but was only awarded nominal damages because there was insufficient evidence to show decreased earnings. To support the damages claim on appeal, the plaintiff submitted the plaintiff’s trial testimony, the firm’s QuickBooks reports for 2017-2018, and the plaintiff’s 2019 tax return. I don’t know if the QuickBooks reports would have moved the needle in this case, but that’s a question one generally does not want lingering after an appeal.

Another Practice Point – This opinion has a thorough discussion of the law on the measure of damages for breach of contract and lost profits claims. It is worth bookmarking for that purpose.

Doe v. Adams County Dept. of Child Protection Services, 2022-CA-00240-SCT (Civil – Other)
Affirming youth court’s denial of motion to transfer venue in an action to terminate parental rights for lack of jurisdiction and motion for recusal, holding that venue was proper because both the natural mother and the child resided in the venue county and that the trial court did not commit a manifest abuse of discretion in denying a motion for recusal.
(9-0)

Alpha Management Corp. v. Harris, 2022-IA-00354-SCT (Civil – Wrongful Death)
consolidated with
Community Park Apartments, Inc. v. Harris, 2022-IA-0355-SCT (Civil – Wrongful Death)
Reversing the trial court’s denial of motions to transfer venue, holding that the defendant that purportedly established venue in Hinds County was not a material and proper party and setting aside a default judgment against the fraudulently-joined defendant.
(7-1-1: Coleman concurred in part, joined in part by Griffis; Griffis concurred in part and dissented in part, joined in part by Coleman.)

NOTE – When discussing its decision to set aside the default judgment against the fraudulently-joined defendant, the Supreme Court had this to say:

Board of Supervisors of Lowndes County v. Lowndes County School District, 2021-CA-00999-SCT (Civil – Other)
Reversing the trial court’s grant of summary judgment in favor of the school district in a dispute over the board’s decision to exclude more than $3M from the district’s requested ad valorem tax effort, holding that the district’s exclusive remedy was section 11-51-75 which required an appeal of the board’s decision to be filed in the circuit court within 10 days and that the district failed to do so.
(7-2-0: King concurred in the result only, joined by Kitchens.)

Welch v. State, 2022-KA-00457-SCT (Criminal – Felony)
Affirming conviction of statutory rape, holding that trial counsel’s decision not to collect and test defendant’s relatives’ DNA was reasonable trial strategy and not deficient performance and did not cause prejudice.
(9-0)

Garcia v. State, 2021-CA-01214-SCT (Civil – Death Penalty – Post Conviction)
Affirming denial of PCR motion to set aside a plea of guilty to capital murder and sentence to death, holding that the trial court did not fail to address the petitioner’s expert testimony and did not err by continuing to rely on the petitioner’s own competency expert or in ruling the petitioner was competent to plead guilty, that trial counsel was not constitutionally ineffective for not calling attention to a potential autism diagnosis or in preparing the petitioner to plead guilty, and the petitioner was not deprived of expert assistance under Ake.
(9-0)

Barton v. Adams-Williams, 2023-EC-00586-SCT (Civil – Election Contest)
Affirming denial of petition to disqualify a candidate for county prosecutor, holding that the trial court applied the proper standard in analyzing the candidate’s residency and did not manifestly err in its factual findings.
(9-0)

Other Orders

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing Nicholas K. Thompson as member of Supreme Court of Mississippi Advisory Committee on Rules)

Rules for Court Reporters, 89-R-99021-SCT (appointing Theresa Lumley and Hon. David B. Strong, Huey Bang, and Jerry D. Sharp as members of the Board of Certified Court Reporters)

Lowe v. State, 2019-CT-01621-SCT (dismissing cert petition)

Powers v. State,  2017-DR-00696-SCT (denying motion to stay, granting in part a motion to compel disclosure, and granting leave to file reply)

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Mississippi Supreme Court Decisions of May 11, 2023

The Mississippi Supreme Court handed down four decisions today. One is an interlocutory appeal of a discovery order in a personal injury case and one is a direct criminal appeal. The other two are election contest cases, one regarding the race for public service commissioner and other a state representative race.

Mississippi Baptist Health Systems, Inc. v. Johnson, 2022-IA-00158-SCT (Civil – Personal Injury)
Reversing the trial court’s order compelling the defendant hospital to produce two incident reports over a claim of privilege, holding that the trial court erred in ordering production without conducting in camera review and remanding for that purpose.
(9-0)

Norwood v. State, 2021-KA-00903-SCT (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that there was no reasonable probability that, but for defense counsel’s failure to present evidence of the victim’s purported drug use while cross-examining her, the trial result would have been different.
(9-0)

Gunasekara v. Barton, 2023-EC-00377-SCT (Civil – Election Contest)
Affirming the trial court’s decision in an election contest, holding that the trial court did not manifestly err by holding that the plaintiff failed to meet the five-year residency requirements for the office of Public Service Commissioner.
(6-0: Coleman, Maxwell, and Chamberlin did not participate.)

NOTE – The Court declined to address the plaintiff’s claim that the five-year citizenship requirement violated the 14th Amendment, noting that the Attorney General should be given the opportunity to argue the question of constitutionality.

Jones v. Yates, 2023-EC-00395-SCT (Civil – Election Contest)
Affirming the trial court’s finding in an election contest, holding that the trial court erred in determining that the would-be candidate for state representative satisfied the two-year residency requirement but affirmed because the trial court reached the correct outcome for other reasons.
(9-0)

Other Orders

Short v. State, 2021-CT-00499-SCT (dismissing pro se cert petition)

Davis v. State, 2021-CT-00593-SCT (denying cert)

Meek v. Cheyenne Steel, Inc., 2021-CT-01219-SCT (denying cert)

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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 Supreme Court Decisions of July 21, 2022

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

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

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

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

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

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

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

Hand Down List

Mississippi Supreme Court Decisions of June 9, 2022

The Mississippi Supreme Court handed down six opinions today. Topics include public project bidding, summary judgment in a property damage case, conversion by the owner of a collection agency, an appeal of a post summary judgment decision granting a Rule 60(b) motion based on fraud, a unanimous pro se PCR appeal win, and an election contest.

The Mississippi State Port Authority at Gulfport v. Eutaw Construction Company, Inc., 2020-IA-00881-SCT (Civil – State Boards and Agencies)
Reversing the circuit court’s decision that reversed the MSPA’s award of a project to the lowest bidder whose bid contained multiple errors and awarded the project to the second lowest bidder, holding that the lowest bidder’s errors were minor, the intended correct bid was evident on the face of the bid, and the corrected bid by the lowest bidder was a decrease in price.
(All justices concurred.)

Hardin v. Town of Leakesville, Mississippi, 2020-CA-01164-SCT (Civil – Property Damages/Summary Judgment/Proximate Cause)
Affirming summary judgment in favor of Leakesville, holding that the plaintiff failed to present sufficient evidence that water that had accumulated under her house was caused by an act or omission attributable to the town.
(All justices concurred.)

Practice Point – This opinion contains a helpful discussion of the exacting standard that applies when a plaintiff seeks to prove causation by circumstantial evidence:

McGee v. Comprehensive Radiology Services, PLLC, 2021-CA-00666-SCT (Civil – Torts/Conversion/Fraud)
Affirming the chancellor’s finding that the president of a collections agency was individually and personally liable for $785,549.71 that she directed her company to delay remitting to a radiology group while also billing for and receiving commissions for collecting that money, holding that while the tort of conversion cannot be used to recover a mere debt it can be used to recover identifiable money belonging to the plaintiff which is what occurred here.
(All justices concurred.)

Riverboat Corporation of Mississippi v. Davis, 2020-IA-01244-SCT (Civil – Personal Injury/Negligence/Rule 60(b))
The circuit court granted summary judgment in favor the casino in a personal injury case stemming from a fall from a casino chair due to the lack of evidence that the casino breached a duty. The plaintiff then filed a motion to reopen the case under Rule 60(b)(1) alleging that the defendant committed fraud in its 30(b)(6) deposition based upon information the plaintiff discovered in an unrelated case about another chair at the casino. The circuit court granted the motion to reopen based on fraud and the defendant petitioned for interloc which the Supreme Court granted. On appeal, the Supreme Court held that the trial court abused its discretion because the plaintiff “fell far short of satisfying all of the elements of fraud” and because this case did not present the requisite “exceptional circumstances” for relief under Rule 60(b).
(All justices concurred.)

Practice Point – This opinion has a helpful summary of what is required to prove fraud under Rule 60(b)(1):

Magee v. State, 2019-CT-01794-SCT (Civil – PCR/Involuntary Guilty Plea)
Reversing the circuit court’s denial of the plaintiff’s pro se PCR motion, holding that the circuit court granted an evidentiary hearing but failed to address the issue of whether the plaintiff’s guilty plead was involuntary because the plaintiff was affirmatively misinformed about the possibility of early release by his trial attorney and failed to allow the plaintiff to call witnesses or present evidence.
(Chief Justice Randolph did not participate.)

Meredith v. Clarksdale Democratic Executive Committee, 2021-EC-00305-SCT (Civil – Election Contest)
Affirming the trial court’s decision agreeing with the CDEC’s decision that a mayoral candidate resided at a lake house outside of the city limits rather than a funeral home apartment within the city limits, holding that the would-be candidate failed to prove by “absolute proof” that he met the residency requirement on or before the applicable deadline.
(Justice Coleman concurred in part and in the result) (“It is not in the court’s bailiwick to impose its judgment for that of the Legislature.”)

Other Orders

Hutto v. State, 2017-DR-01207-SCT (granting response to order granting motion for appointment of counsel for representation for successive petition for post-conviction relief filed by the Circuit Court of Hinds County)

Havard v. State, 2018-CA-01709-SCT (granting motion to file motion for attorney fees and expenses under seal)

Walker v. State, 2020-CT-00228-SCT (denying cert)

McLemore v. State, 2016-M-00364 (denying application for leave to proceed in the trial court with a warning against future frivolous filings)

Hand Down List