evidence – Mississippi Appeals Blog

Mississippi Supreme Court Decisions of April 20, 2023

The Mississippi Supreme Court handed down four opinions today. There is one med mal case that is a civil procedure/amendment case. There is a decision addressing the application of the “malicious conduct” exception to the peer review and quality assurance privileges. There is also a direct criminal appeal and a foreclosure case. There were also two interesting cert grants.

Franklin County Memorial Hospital v. Fairman, 2021-IA-01283-SCT (Civil – Medical Malpractice)
Affirming denial of a motion to dismiss on statute of limitations grounds, holding that Rule 21 does not require a court order when an amended complaint could otherwise be filed as a matter of course and the amendment merely corrects the misidentification of a defendant and that such an amendment relates back to the date of initial filing.
(9-0)

Rush v. Rush Health Systems, Inc., 2020-IA-01116-SCT (Civil – Contract)
Dismissing and remanding after receiving the trial court’s discovery order entered in response to a prior remand, addressing only a question of law and adopting a standard to determine when a physician is entitled to production of information protected by Sections 41-63-9, -23, and -45 under the malicious conduct exception.
(9-0)

NOTE – Here is the standard in all its glory:

Eaton v. State, 2021-KA-01334-SCT (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the trial court did not err in admitting a glass pipe into evidence and that the convictions were supported by sufficient evidence and not against the overwhelming weight of it.
(9-0)

WBL SPO I, LLC v. West Town Bank & Trust, 2021-CA-00792-SCT (Civil – Other)
Affirming on direct appeal and cross appeal, holding that a junior creditor had no legal remedy entitling it to “equitable credit” in the form of money damages from the foreclosing creditor in the amount of the difference in the foreclosing creditor’s purchase price and the alleged market value of the property and the dismissal of the foreclosing creditor’s counterclaim for tortious interference with business relations.
(5-4-0: Kitchens concurred in result only, joined by Randolph, King, and Chamberlin)

PRACTICE POINT – You can’t appeal without a ruling, and it’s your job to secure a ruling:

Other Orders

In Re: Mississippi Rules of Criminal Procedure, 89-R-99038-SCT (denying motion to amend Miss. R. Crim. P. 5 and 8 but amending the Miss. R. Crim. P. on the Court’s own motion)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-00001-SCT (order directing the disbursement of $189,074.60 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

Rush v. Rush Health Systems, Inc., 2020-IA-01116-SCT (denying motion to supplement the record and motion to file exhibits under seal)

Howard Industries, Inc. v. Hayes, 2021-CT-00694-SCT (granting cert)
NOTE – Here is my summary of the 5-4 COA opinion (Wilson wrote the partial dissent).

Loblolly Properties LLC v. Le Papillon Homeowner’s Association Inc., 2021-CT-00767-SCT (granting cert)
NOTE – This is a case I had put on “cert watch” when a fractured COA (3-3-4) affirmed the lower court and a Wilson-penned dissent raised some big issues. Here is my summary of the COA opinion.

Hand Dow n Page

Mississippi Court of Appeals Decisions of June 7, 2022

A deposition took me out of blogging service for most of the afternoon, so a little later than usual I give you summaries of the nine opinions handed down by the Mississippi Court of Appeals. These opinions cover the statute of frauds, trusts, appellate jurisdiction, youth court, authentication of text messages, equitable division and alimony in a divorce case, workers’ comp, PCR, and more.

SEL Business Services, LLC v. Lord, 2021-CA-00368-COA (Civil – Real Property/Statute of Frauds)
Affirming the chancery court’s dismissal of a suit to reclaim property or alternatively for unjust enrichment, holding that a “handshake deal” for the purchase of a building that was sold before that deal came to fruition was subject to the statute of frauds, that the statute of frauds was not satisfied, and that the equitable remedy of unjust enrichment was therefore unavailable.
(All judges concurred.)

Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (Civil – Wills, Trusts & Estates/Appellate Procedure/Appellate Jurisdiction)
Granting a motion to dismiss an appeal for lack of jurisdiction in a case of first impression, holding that the 30-day time period for perfecting an appeal began to run upon the entry of an order adjudicating a claim for attorney’s fees against a trust–not the final judgment terminating the trust.
(All judges concurred.)

Smith v. Adams County Youth Court, 2021-CP-00196-COA (Civil – Juvenile Justice)
Dismissing an appeal of the denial of a minor’s post-disposition motion for modification arguing that his guilty plea was the result of ineffective assistance of counsel, holding that the notice of appeal was prematurely filed because the youth court had not been given an opportunity to consider these arguments and any supporting evidence.
(Judge Wilson concurred in result only without separate written opinion.)

Warner v. Warner, 2020-CA-01098-COA (Civil – Domestic Relations/Divorce/Valuation/Equitable Division/Alimony/Contempt)
Reversing the chancellor’s judgment in a divorce case, holding that the chancellor erred in valuation and equitable division of marital assets, in the award of alimony, and in finding the ex-husband in contempt and awarding attorney’s fees as a result.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Simpson v. State, 2021-KA-00075-COA (Civil – Felony/Authentication)
Affirming convictions of two counts of first-degree murder, first-degree arson, and possession of a deadly weapon by a felon, holding that there was no plain error with regard to the authentication of text messages and that there was no merit to the claim of ineffective assistance for not objecting to the properly-authenticated text messages.
(Judge Emfinger did not participate.)

Carson v. State, 2021-KA-00436-COA (Criminal – Felony/Weight and Sufficiency)
Affirming conviction of possession of cocaine, holding that the circuit court did not err in denying a motion for new trial challenging the weight and sufficiency of the evidence and finding no merit to the defendant’s pro se arguments that his rights under the Fourth Amendment and the Confrontation Clause were violated, that the State’s case hinged on “racial profiling,” that he had ineffective assistance of counsel, and that the circuit judge failed to comply with Sharplin.
(All judges concurred.)

Ellis v. State, 2020-CP-00770-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was time-barred and that the plaintiff failed to raise any claims resulting in the deprivation of his fundamental constitutional rights that would defeat the time bar.
(Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion.)

Reardon v. State, 2020-CP-01259-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was procedurally barred and that his claims of ineffective assistance of counsel, deprivation of fundamental rights, and failure to recuse were without merit.
(Chief Judge Barnes and Judge Wilson concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion. Judge Greenlee and Judge McCarty did not participate.)

Duren v. Effex Management Solutions, LLC, 2021-WC-00337-COA (Civil – Workers’ Compensation)
Affirming the Commission’s ruling, holding that there was substantial evidence to support the Commission’s decision that the claimant failed to prove that he suffered a permanent disability and the decision to award TTD through the date of MMI, but denying post-MMI medical treatment, prescription, and mileage reimbursements.
(Judge Wilson concurred in part and in the result without separate written opinion. Judge Westbrooks and Judge McDonald concurred in the result only without separate written opinion.)

DEEPER DIVE: This case had an interesting post-MMI fact pattern where the claimant was released to return to work without restrictions, was offered to return to work for the Employer at his pre-injury wages, and returned to work there, but then quit working for the Employer due to complaints of pain. Under these facts, the Court of Appeals noted that there was a presumption of no loss of wage-earning capacity and held that the claimant did not overcome it:

Other Orders

Hammer v. State, 2019-KA-01633-COA (denying rehearing)
Shannon v. Shannon, 2020-CA-00847-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Hand Downs for February 10, 2022

Brown v. State, 2020-KA-1366-SCT (Criminal – Felony/Constructive Possession Instruction)
Affirming a conviction for three counts of possession of a controlled substance and one count of unlawful possession of a firearm by a convicted felon with a sentence of twenty-four years to under the habitual offender statute, holding that the circuit court did not err in granting the State’s jury instruction on constructive possession or in denying the defendant’s proposed instruction on circumstantial evidence.

Copes v. State, 2019-CT-302-SCT (en banc) (Criminal – Felony/Right to Counsel of Choice)
Affirming a conviction for two counts of sexual battery of two minors and a sentence of twenty years, holding that the defendant was not denied his right to his counsel of choice under the Sixth Amendment when his lead counsel was removed during trial from questioning witnesses and making closing arguments due to repeated misconduct including violation of the judge’s orders.

Augustine v. State, 2019-CT-1467-SCT (en banc) (Criminal-Felony/Impeachment Testimony)
Reversing the court of appeals and reinstating/affirming a conviction for second-degree murder, holding that the circuit court did not err by allowing an officer to testify to the content of a prior witness’s statement for impeachment purposes and, assuming arguendo that it was error, that the overwhelming weight of the evidence supported the conviction.

Alexander v. State, 2019-CT-1612-SCT (en banc) (Criminal-Felony/Habitual Offender Status/Miller Hearing)
Reversing the court of appeals and reinstating/affirming a 1998 conviction for capital murder and sentence to life without parole, holding that the circuit court did not abuse its discretion when it denied the defendant’s motion to fund a mitigation expert and holding that the defendant was not deprived of his right to have a jury impose his sentence.

Other Orders
1 Denial of a “Motion for Review by Supreme Court of Court of Appeals’ Denial of Attorney’s Fees”
1 Denial of a Cert Petition
1 Denial of a Motion for Rehearing

Complete Hand Down List

BONUS CONTENT

Every so often, one needs to find support for a proposition that is so obvious that a citation is elusive. See generally Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012). The supreme court gifted the bar with this pithy statement that will come in handy in the future:

"It is axiomatic that a judge's rulings during trial are to be followed." Copes v. State, No. 2019-CT-00302-SCT (¶ 11) (Miss. 2022)