The Mississippi Court of Appeals handed down eight opinions on Tuesday. I finally got around to summarizing them and you can read those summaries below.
Lovelace v. Board of Trustees of East Mississippi Community College, 2023-CA-01341-COA (Civil – Contract) Affirming the chancellor’s order denying appeal and upholding the board’s decision not to renew an instructor’s contract, holding that the chancellor did not err by not considering documents that were not before the board, that the board’s decision was supported by substantial evidence, and the instructor was not denied due process. (10-0: Weddle for the Court)
Ingram v. Ingram, 2023-CA-01364-COA (Civil – Custody) Affirming the Court’s custody order, holding that the chancellor did not err in the Albright analysis or abuse his discretion in the visitation award. (10-0: Weddle for the Court)
Franklin v. State, 2024-CP-00696-COA (Civil – PCR) Affirming dismissal of PCR motion as time-barred. (9-0: McCarty for the Court; Emfinger did not participate)
Cardwell v. State, 2024-CP-01088-COA (Civil – PCR) Affirming denial of PCR motion as successive. (10-0: McCarty for the Court)
Brookshire v. State, 2023-KA-00966-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that there was a custodial interrogation that violated the right to counsel that had been invoked but that the error was harmless in light of the overwhelming evidence supporting the conviction and that its admission did not result in plain error under the Confrontation Clause. (8-2-0: Westbrooks for the Court; Carlton and McCarty concurred in result only without writing)
Williams v. State, 2024-CA-00817-COA (Civil – PCR) Reversing summary dismissal of a PCR motion, holding that the petitioner was not required to seek leave from the Supreme Court before filing the PCR motion. (10-0: Wilson for the Court)
Back Bay Lawnscapes LLC v. Graham, 2024-CA-00054-COA (Civil – State Boards & Agencies) Affirming the chancery court’s order granting summary judgment upholding a sales tax assessment and an individual income tax assessment, holding that the taxpayer failed to fulfill its statutory duty to keep adequate records and that the chancellor did not err in applying the law to the facts of the case or in awarding damages. (9-0: Carlton for the Court; Westbrooks did not participate)
Taylor v. Fair, 2024-CP-00676-COA (Civil – Other) Affirming the chancellor’s dismissal of a petition for write of habeas corpus and emergency custody of the petitioner’s child, holding that the chancellor did not err in dismissing the petition for lack of jurisdiction. (9-1-0: Carlton for the Court; McDonald concurred in result only without writing)
Other Orders
Estate of Anderson: Brown v. Fitzgerald, 2023-CA-01131-COA (denying rehearing)
Smith v. State, 2024-KA-00162-COA (denying rehearing)
Bickes v. Swain, 2024-CA-00187-COA (denying rehearing)
Roach v. Roach, 2024-CA-00236-COA (denying rehearing)
The Mississippi Supreme Court waited until I was out of town last week to unleash its largest batch of opinions of the year. Six opinions were handed down on Thursday, including one of my cases which was on interlocutory appeal for a service of process issue. There is also one direct criminal appeal, two breach of contract cases (one trial and one summary judgment), an election contest, and a statute of limitations case.
The Court also adopted a new rule of evidence that is “residual exception” to the rule against hearsay.
Unruh v. Johnson, 2024-IA-00028-SCT (Civil – Personal Injury) Reversing the trial court’s denial of motions to dismiss for insufficient service of process, holding that the trial court erred by granting the plaintiff’s motion for enlargement of time to serve process because the plaintiff could not show “good cause” where both the motion for enlargement of time and the first service attempt came one day after the 120-day service period ended and the plaintiff failed to articulate a legitimate basis for failing to attempt to timely serve process, holding that filing the motion for enlargement of time one day after the 120-day period did not toll the statute of limitations, and rendering judgment in favor of the defendant. (9-0)
Note – I represented the appellant/defendant in this appeal. I jumped in on this one with Bobby Stephenson when I joined Wilkins Patterson last summer right after interlocutory appeal was granted.
Phillips v. State, 2023-KA-01218-SCT (Criminal – Felony) Affirming conviction of aggravated assault, holding that the admission of statements on body-camera footage were not testimonial and statements in search warrant affidavit did not violate the Confrontation Clause, that introducing underlying facts and circumstances of the search warrant containing a comment about the defendant’s post-Miranda silence was error albeit harmless, that the cumulative error doctrine did not apply, and that the defendant did not receive ineffective assistance of counsel. (8-0: Randolph did not participate)
Radco Fishing and Rental Tools, Inc. v. Commercial Resources, Inc., 2023-CA-00376-SCT (Civil – Contract) Affirming judgment against the defendant for outstanding principal and interest under an accounts receivable line of credit agreement and award of attorneys’ fees, holding that the trial court did not err by granting a motion for partial summary judgment dismissing affirmative defenses, that the defendants’ motions for summary judgment are not reviewable on appeal after they proceeded to trial and litigated, that the trial court did not err by granting a motion to admit parol evidence, that the trial court did not err in denying the defendants’ motions for directed verdict and granting the plaintiff’s motion for directed verdict, that the trial court did not err in granting the plaintiff’s jury instruction on liability, that the trial court did not err by denying the defendants’ post-trial motions, and that the trial court did not err in altering the judgment due to the jury’s disregard of the peremptory instruction and directed verdict, and that the trial court did not err by granting the plaintiff’s motion to bifurcate and award attorneys’ fees. (6-6*-2: Maxwell specially concurred, joined by five other justices, making it binding precedent; Griffis concurred in part and dissented in part, joined by Coleman)
*Precedential Special Concurrence – With a total of six votes, Maxwell’s special concurrence is precedent and provides significant guidance for the bench and bar going forward, so it deserves its own summary. The special concurrence held that the trial court erred in granting a blanket ruling against all of the defendants’ affirmative defenses, specifically holding that Horton does not apply to “all” affirmative defenses, only those that would have terminated litigation if asserted earlier.
The concurrence explained:
Footnote 11 was also noteworthy:
Final Note – The dissent argued for limiting the Horton doctrine to the issue of asserting the right to arbitration.
Housing Authority of the City of Yazoo City, Mississippi v. Billings, 2023-IA-00975-SCT (Civil – Contract) Reversing the trial court’s order denying the Housing Authority’s motion for summary judgment on a breach of contract claim against it, holding that none of the alleged terms of the employment contract were contained in the Housing Authority board’s minutes, and rendering judgment in favor of the Housing Authority. (9-0)
Gavin v. Evers, 2024-EC-00061-SCT (Civil – Election Contest) Affirming the trial court’s grant of summary judgment in an election contest, holding that the trial court did not err in considering the motion to dismiss and motion for summary judgment simultaneously, did not err in excluding an affidavit that was not based on the affiant’s personal knowledge, did not err in finding no genuine issue of material fact in the voting irregularities claim, did not err by finding that the prevailing candidate met the two-year residency requirement, and did not err in denying the motion for reconsideration and request for additional findings of fact and conclusions of law. (9-0)
Dollar General Corporation v. Dobbs, 2023-IA-00617-SCT (Civil – Torts) Reversing the county court’s denial of the defendant’s motion to dismiss for failure to state a claim, holding that the trial court erred in finding the three-year statute of limitations applied where the complaint stated only a claim of defamation which is subject to a one-year statute of limitations. (5-4)
Other Orders
Johnson v. State, 2022-CT-00665-SCT (denying cert)
Law Will and Testament of Prichard: Martin v. Arceneaux, 2022-CT-01035-SCT (denying cert)
Wilson v. State, 2023-CT-00070-SCT (dismissing pro se cert petition as untimely)
Wallace v. State, 2023-CT-00071-SCT (denying cert)
NCAA v. Farrar, 2023-IA-00282-SCT (denying rehearing)
In Re: Capitol Complex Improvement District Inferior Court, 2025-M-00007-SCT (granting motion to withdraw petition to adopt local rules of CCID Court)
In Re: Mississippi Rules of Evidence, 89-R-99002-SCT (granting motion to adopt Mississippi Rule of Evidence 807) Here is the text of the new rule:
The Mississippi Supreme Court handed down four opinions today. There is one direct criminal appeal, one wrongful termination case, an adoption, and a pro se PCR win.
Bradford v. State, 2023-KA-00595-SCT (Criminal – Felony) Affirming conviction of armed robbery, finding no error after reviewing counsel’s Lindsey brief and the record. (9-0)
Public Service Commission of Yazoo City v. Wright, 2023-IA-00020-SCT (Civil – State Boards and Prisons) Reversing the trial court’s denial of the PSC’s motion for summary judgment in a suit alleging wrongful termination in retaliation for refusing to participate in an illegal activity, holding on interlocutory appeal that the plaintiff failed to identify any act on the part of her supervisor that warranted the imposition of criminal penalties. (9-0)
In the Matter of the Adoption of D.A.S., a Minor: B.B. v. K.P., 2023-CA-00381-SCT (Civil – Adoption) Affirming denial of a petition to set aside an adoption based on alleged fraudulent misrepresentations that the adoption would be “open,” holding that the petition was untimely because it was filed more than six months after the entry of the adoption decree. (9-0)
Practice Point – Though the petition to set aside the adoption was dismissed as untimely, it was interesting that an issue in the case was notary lines that were inconsistent with the body of the adoption petition. The petitioner was seeking to have the adoption set aside based on claims of fraudulent misrepresentations that the adoption would be “open.” The body of the initial and amended petitions for adoption did not reference an “open” adoption, but the notary lines read:
A good reminder to beware of those copy-paste portions of pleadings.
Love v. State, 2021-CT-01101-SCT (Civil – PCR) Reversing the circuit court for dismissing the petitioner’s voluntariness claim without evidentiary hearing and the Court of Appeals for affirming that dismissal, holding that the circuit court committed plain error during the plea colloquy by incorrectly stating the minimum penalty on each count to which the petitioner was pleading, that the the petitioner was not properly informed he would be sentenced as a habitual offender resulting in a blatant injustice, that the State did not establish a factual basis to support the habitual offender portion of the indictment by failing to mention the prior felony convictions, and that issues related to the petitioner’s request to withdraw his plea and his ineffective assistance claim were procedurally barred. (9-0)
Other Orders
Hills v. Manns, 2022-CT-00774-SCT (denying cert)
Boyett v. Cain, 2022-CT-00978-SCT (granting pro se cert petition)
Jones v. Mississippi Department of Child Protection Services, 2022-SA-01234-SCT (denying rehearing)
The Mississippi Supreme Court handed down four opinions today. There is an decision about whether a subdivision’s roads are public or private, a Miller PCR case, a decisions about the applicability of McArn exceptions to at-will employment, and a felony case analyzing three jury instructions.
Newton County, Mississippi v. Deerfield Estates Subdivision Property Owners Association, LLC, 2022-CA-01227-SCT (Civil – Real Property) Affirming the chancellor’s decision in a case about whether the main roads in a subdivision are private or public roads, holding that the chancery court did not err in finding that the roads were accepted by the county via express common law dedication where the boards accepted the roads in its minutes, the rights of way over the roads, no tax had been levied on the rights of way, and the public had unrestricted access to the roads. (9-0)
McDowell v. State, 2021-CT-01381-SCT (Civil – PCR) Reversing sentence of life without parole after a resentencing trial pursuant to Miller, holding that the trial court’s unopposed grant of a jury trial under Miss Code. Ann. § 99-19-101(3) (Rev. 2020) made that section applicable to the entirety of the proceedings and therefore the trial court erred by conducting a Miller analysis and sentencing the defendant to life without parole. (5-2-2: Maxwell concurred in part and in the result, joined by Randolph and Chamberlin; Beam dissented, joined by Griffis, and joined in part by Randolph and Maxwell.)
Brandi’s Hope Community Services, LLC v. Walters, 2022-CT-00188-SCT (Civil – Torts/Other) Affirming in part and reversing in part the Court of Appeals and circuit court’s decisions after a wrongful termination verdict in the plaintiff’s favor, holding that the public policy exceptions to at-will employment established in McArn v. Allied Bruce-Terminix Co., Inc., do not conflict with the reporting protections in section 43-47-37(5)(b) of the Vulnerable Persons Act and that the plaintiff was qualified to bring wrongful termination claims. (9-0)
Saxton v. State, 2023-KA-00226-SCT (Criminal – Felony) Affirming conviction of aggravated assault, holding that the trial court erred in granting an unopposed instruction that contained an “incomplete” statement of Mississippi’s self-defense law but that the error did not result in a miscarriage of justice in light of other instructions given, that the trial court did not in in granting a definitional instruction on “imminent danger,” and that the trial court did not err in denying the defendant’s self-defense instruction as repetitive. (5-4: Maxwell specially concurred, joined by Kitchens, Coleman, and Chamberlin; Kitchens concurred in part and in the result, joined by King and Ishee, and joined in part by Coleman.)
Other Orders
Fortenberry v. State, 2017-M-01026 (granting application for leave to file PCR petition)
Walter v. State, 2021-M-01125 (denying an application for leave to proceed in the trial court, and finding the filing frivolous and warning that future frivolous filings could be met with sanctions)
Patel v. State, 2022-CT-00985-SCT (denying cert)
Harris v. State, 2022-KA-01195-SCT (denying rehearing)
Kelly v. State, 2023-M-00482 (denying application for leave to file PCR petition)
Deutchman v. The Mississippi Bar, 2024-BD-00009-SCT (granting leave to resign in good standing from the practicing of law in Mississippi)
The Mississippi Court of Appeals handed down five opinions today. There are two domestic cases (custody and divorce), an appeal of summary judgment, a real property/arbitration case, and a PCR case.
Scott v. Boudreau, 2022-CA-00961-COA (Civil – Custody) Affirming judgment modifying custody and awarding the father custody, holding that the chancery court did not abuse its discretion in analyzing the Albright factors and awarding custody to the father which required relocating the children. (8-1-1: Wilson concurred in part and in the result without writing, McDonald concurred in part and dissented in part without writing)
Malone v. State, 2022-CP-00958-COA (Civil – PCR) Affirming denial of a PCR motion, holding that the petitioner entered his guilty plea voluntarily and the circuit court did not err on the issue of competency where the circuit court made an on-the-record determination of competency and that the petitioner’s attorney’s performance was not deficient. (7-3-0: Wilson, Westbrooks, and McCarty concurred in part and in the result without writing)
MDL Community Development, LLC v. Dillon, 2022-CA-00802-COA (Civil – Real Property) Affirming the chancellor’s decision withdrawing an order and reiterating a prior order compelling arbitration, holding that the chancellor had subject matter jurisdiction over the land-contract dispute and retaind jurisdiction to enforce an arbitration decision, if any. (10-0)
Cannon v. Cannon, 2022-CA-00410-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancellor’s grant of divorce and related matters, holding the chancellor did not err in granting divorce on the ground of cruel and inhuman treatment or in finding that the proceeds from the sale of the ex-wife’s separate home were converted to marital property, but holding that the chancellor erred in determining that the ex-husband’s real estate business was separate non-martial property. (9-1-0: Emfinger concurred in part and in the result without writing)
Jarrell v. Coastal Ear, Nose & Throat, Head and Neck Surgery Association, PLLC, 2022-CA-00910-COA (Civil – Other) Affirming the trial court’s grant of summary judgment dismissing a former employee’s wrongful discharge claim, holding that the circuit court did not err in striking parts of the plaintiff’s affidavit that contained hearsay, lacked foundation, and were speculative statements, and that the plaintiff did not establish that the whistleblower exception to at-will employment could apply here. (8-2-0: McDonald and McCarty concurred in part and in the result without writing)
Other Orders
Rawlings v. Rawlings, 2022-CA-00919-COA (denying motion for appellate attorney’s fees)
The Mississippi Supreme Court handed down four opinions today: one civil procedure decision on interlocutory appeal, one MDES decision, and two decisions affirming criminal convictions.
University of Mississippi Medical Center v. Jensen, 2020-IA-872-SCT (Civil – Personal Injury/Statute of Limitations/Service of Process) Reversing, on interlocutory appeal, the county court’s ruling granting the plaintiff’s motion for extension of time to serve process, holding that the plaintiff did not show good cause where the plaintiff attempted to serve process on an administrative assistant, who accepted service on behalf of UMMC’s CEO, instead of the attorney general. Because the statute of limitations had expired, judgment was rendered in favor of UMMC.
“As neither inadvertence, mistake of counsel, or ignorance of the rules suffice to establish good cause, the county court lacked substantial evidence to support its finding that Jensen had shown good cause for an extension of time to serve process under Rule 4(h).”
Univ. of Miss. Med. Ctr v. Jensen, 2020-IA-827-SCT (Miss. 2022) (citation omitted).
Mississippi Department of Employment Security v. Dover Trucking, LLC, 2020-CC-1267-SCT (Civil – State Boards and Agency/Employment) Reversing the circuit court’s order that reversed the MDES Board of Review’s decision that the claimant was an “employee” of a trucking company, holding that that the agency’s decision was supported by substantial evidence and was not arbitrary or capricious.
Williams v. State, 2020-KA-772-SCT (Criminal – Felony/Rebuttal Evidence) Affirming conviction of one count of sexual battery, holding that the circuit court did not err in admitting State’s rebuttal evidence related to the defendant’s ankle monitor that had not been disclosed prior to trial because that evidence was not within the State’s due diligence/disclosure obligations prior to trial based on the defendant’s pre-trial representations. The supreme court also held that the circuit court did not err in excluding evidence that the minor victim had previously twerked on the school bus and that the defendant’s sufficiency of the evidence claim was meritless.
Williams v. State, 2019-CT-1007-SCT (en banc) (Criminal – Felony/Accomplice Liability) Affirming, on writ of certiorari, convictions for two counts of conspiracy and two counts of possession with intent to distribute, holding that the evidence was sufficient to convict on accomplice liability rather than constructive possession where an inmate was directing a drug-trafficking ring from prison over the phone and whose home was found to have large amounts of cocaine and marijuana, as well as $93,259 in cash.
Other Orders
Ward v. Cranford, 2020-CT-410-SCT (denying petition for writ of certiorari) Brown v. State, 2020-M-630 (denying petition for leave to proceed in trial court and for permission to file successive petition for post-conviction collateral relief) State v. Corrothers, 2021-IA-836-SCT (denying motion for rehearing) Cooper v. State, 2021-CT-1012-SCT (dismissing pro se “writ of certiorari”)
Mississippi Appeals Blog 