The Mississippi Court of Appeals handed down six opinions today. One case is a relatively novel appeal of a chancellor’s decision denying a name-change petition. There is also an MTCA/breach of contract/inverse condemnation case along with a couple of felony appeals and a couple of PCR cases.
Haralson v. State, 2023-CP-01309-COA (Civil – PCR) Affirming denial of PCR motion challenging revocation of post-release supervision, holding that the trial court did not err in summarily dismissing the motion. (10-0)
Hatchett v. State, 2024-KA-00100-COA (Criminal – Felony) Affirming conviction of one count of sexual battery, holding that the conviction was not against the overwhelming weight of the evidence. (9-0: Emfinger did not participate)
Hulitt v. State, 2024-CA-00182-COA (Civil – PCR) Affirming dismissal of motion for PCR, holding that the trial court that adjudicated the charged offenses to which he pleaded guilty was a county of venue. (7-2-0: Westbrooks and McDonald concurred in result only without writing; Emfinger did not participate)
Rogers v. City of Lumberton, 2023-CA-01133-COA (Civil – Property Damage) Affirming in part and reversing in part the circuit court’s order granting the City’s motion to dismiss, holding that the trial court did not err in dismissing the plaintiff’s negligence claims for non-compliance with the pre-suit notice requirements of the MTCA or in dismissing the breach of contract claim, but that the trial court did err in dismissing the inverse condemnation claim because it was not subject to the pre-suit requirements of the MTCA. (10-0)
In Re Name Change: Petitioner Yasmine Montia Jones, By and Through Her Guardian and Conservator, John D. K. Taylor, 2023-CA-01343-COA (Civil – Other) Reversing the chancery court’s decision denying a petition to change the last name of a adult woman with disabilities, holding that the chancellor improperly substituted his judgment for that of the guardian without sufficient evidentiary support. (8-2: Wilson dissented, joined by Lawrence)
Phinizee v. State, 2023-KA-01090-COA (Criminal – Felony) Affirming conviction of conspiracy and attempt to commit murder, holding that the conviction for conspiracy to commit murder was supported by sufficient evidence, that the trial court did not err by excluding hearsay testimony that the victim previously attacked the defendant, and that the trial court did not err in refusing the defendant’s requested instruction on the lesser offense of aggravated domestic violence. (10-0)
Other Orders
Pilot Travel Centers, LLC v. Womack, 2023-CA-00035-COA (denying rehearing)
Alexander v. State, 2023-KA-00331-COA (denying rehearing)
Williams v. State, 2023-KA-00346-COA (denying rehearing)
Patton v. State, 2023-CP-00618-COA (denying rehearing)
The University of Mississippi Medical Center v. Redd, 2023-CA-00711-COA (denying rehearing)
Mallard v. State, 2023-CP-01155-COA (denying rehearing)
The Mississippi Supreme Court handed down two opinions today. One is a tax sale case and the other is a direct criminal appeal. There is also a disciplinary order granting an irrevocable resignation to an attorney who did not wish to defend a complaint by The Mississippi Bar.
Foreman v. DHP1, LLC, 2023-CA-01293-SCT (Civil – Real Property) Affirming the chancery court’s grant of summary judgment in a tax sale case, holding that the chancery court did not err in finding that the tax sale was void for failure to provide notice of forfeiture to a former owner who was entitled to notice under Section 27-43-3. (8-0: Griffis did not participate)
Hunter v. State, 2023-KA-01246-SCT (Criminal – Felony) Affirming conviction of first-degree murder and shooting into an occupied vehicle, holding that the defendant was procedurally barred from claiming improper admission of a previous charge of marijuana possession and that it was not plain error to admit it. (9-0)
Other Orders
Conrad v. The Mississippi Bar, 2025-BD-00177-SCT (granting irrevocable resignation in compliance with Rule 11(a) of the Rules of Discipline for the Mississippi State Bar)
Campbell v. State, 2022-CT-01055-SCT (denying cert)
The Mississippi Court of Appeals handed down eight opinions today. One opinion is an appeal from a hybrid MTCA/common law med mal trial that cites a law journal article I wrote several years ago on an unresolved procedural conundrum. There is also a premises liability summary judgment case, a breach of contract/attorney’s fees case, three direct criminal appeals, and two PCR cases.
Brown v. State, 2023-CA-00921-COA (Civil – PCR) Affirming denial of PCR, holding that the trial court did not err in summarily dismissing the PCR petition as time-barred. (10-0)
Foote v. Memorial Hospital at Gulfport, 2023-CA-00504-COA (Civil – Med Mal) Affirming the circuit court’s judgment in a med mal action against a hospital (a public entity) and a surgeon and the surgeon’s clinic (private entities) after a single, bifurcated bench and jury trial in which the trial court dismissed the claims against the hospital, holding that if the trial court relied on counsel’s closing statements as evidence it was error but harmless because there was sufficient evidence on the point, that the trial court did not err in finding that the plaintiff failed to present a prima facie case that the surgeon proximately caused or contributed to the injuries, and that the plaintiff failed to object to the jury’s involvement in the MTCA claim so the trial court did not err in partially bifurcating the trial where the jury decided the claims against the private defendants and gave an advisory verdict as to the public defendant, and that the trial court did not err in allowing the jury to allocate fault to the public defendant and the finding that the allocation was not supported by substantial evidence. (7-2-1: Wilson and Emfinger concurred in part and in the result without writing, Lawrence dissented)
NOTE – I was excited to see one of my law review articles cited in this opinion. (If you are so inclined, you can read my article here.) There is no clear guidance from the rules or case law as to how trials should proceed when there a public defendant (entitled to a bench trial under the MTCA) and private defendant (entitled to a jury trial under Mississippi’s constitution, et al). I advocated for a specific procedure in the article that was cited in today’s opinion. In today’s case, the public defendant advocated for the procedure I proposed and the plaintiff argued for a different approach that involved the jury rendering an advisory verdict as to the public defendant. The trial court adopted the plaintiff’s approach. The plaintiff complained about the procedure on appeal, but the Court of Appeals held he could not argue that the trial court erred in following his proposal. Here is the Court of Appeals’ recapitulation of the argument following my proposal:
In 2016, the Rules Committee on Civil Procedure solicited input for a “Mississippi Rules of Civil Procedure Revision Project.” I submitted a proposed amendment to Rule 38 along with a copy of my article:
I never did hear anything back.
Blumer v. Majestic Homes, LLC, 2024-CA-00163-COA (Civil – Contract) Affirming in part and reversing in part the circuit court’s order granting summary judgment in favor of a homeowner against a home builder awarding liquidated damages, attoyne’s fees, and expenses, holding that the trial court did not err entering a corrected order granting relief under Rule 60(b) since there had been no judgment expressly adjudicating the remaining claims and that the trial court did not err in dismissing the claims against the home builder in his individual capacity, but that the trial court did err in reducing the award of attorney’s fees. (9-0: Emfinger did not participate)
Dewberry v. State, 2023-KA-01135-COA (Criminal – Felony) Affirming conviction of one count of sexual battery, one count of fondling, and one count of child exploitation, holding that the trial court did not err in seating jurors after a Batson challenge and that a jury instruction did not constitute a constructive substantive amendment of a count in the indictment under the plain-error doctrine. (10-0)
Rodriguez v. Diamondhead Country Club, 2024-CA-00238-COA (Civil – Torts) Affirming summary judgment in favor of the defendant in a premises liability case, holding that the trial court did not err in finding that a one-half-inch height differential between sidewalk slabs was not a dangerous or unreasonably hazardous condition or in finding that there was no evidence to support a negligence per se claim under the ADA where the plaintiff was not disabled. (10-0)
Thomas v. State, 2023-KA-00512-COA (Criminal – Felony) Affirming conviction of second-degree murder, holding that the trial court did not err in admitting a Facebook post, that the trial court did not err denying a directed verdict under Weathersby, that the conviction was support by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err in denying a motion to suppress the defendant’s statements to law enforcement, that the trial court did not err in admitting autopsy photos, and that the cumulative error doctrine did not apply. (8-2-0: Emfinger concurred in part and in the result without writing; McDonald concurred in result only without writing)
Rasberry v. State, 2023-KA-01161-COA (Criminal – Felony) Affirming conviction of failing to register as a sex offender, holding that the lack of specificity in the indictment was at most harmless error, that the trial court did not err by granting an unopposed motion to amend the indictment, and that trial counsel was not ineffective. (10-0)
Deer v. State, 2024-CP-00019-COA (Civil – PCR) Affirming the dismissal of a PCR motion, holding that the trial court properly dismissed the motion pursuant to the UPCCRA’s three-year statute of limitations. (9-0: Emfinger did not participate)
The Mississippi Supreme Court handed down two opinions today in direct criminal appeals. One was on cert on a Confrontation Clause issue after the Court of Appeals affirmed a conviction.
Walker v. State, 2023-KA-01153-SCT (Criminal – Felony) Affirming conviction of first-degree murder, shooting into occupied vehicle, and felony fleeing from law enforcement, holding that the trial court did not err in refusing a proposed lesser-included-offense jury instruction as to heat of passion manslaughter, that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming weight of the evidence, that the trial court did not commit plain error by failing to exclude a portion of the defendant’s statement, that the jury instruction conference should have been on the record by the defendant was procedurally barred from raising the issue on appeal, and that the defendant did not demonstrate that trial counsel was ineffective. (9-0)
Practice Point – When there is no transcript available…
The opinion concluded:
Pitts v. State, 2021-CT-00740-SCT (Criminal – Felony) Affirming conviction of sexual battery, holding that the defendant’s rights under the Confrontation Clause were not violated where a screen was placed between a child witness and the defendant at trial. (5-3-1: Maxwell concurred in result only, joined by Chamberlin and Griffis; King dissented)
Note – This opinion has a lengthy and detailed analysis of the Confrontation Clause.
Other Orders
Powers v. State, 2017-DR-00696-SCT (denying motion for relief under Rule 60(b)(6))
White v. The Home Depot, 2022-CT-00894-SCT (denying pro se cert petition)
Galang v. State, 2023-CT-00006-SCT (denying cert)
Corrothers v. State, 2023-CA-00401-SCT (denying rehearing)
Carroll v. State, 2023-CT-00688-SCT (denying pro se cert petition)
Toler v. State, 2023-KA-00712-SCT (denying rehearing)
In Re: Administrative Orders of the Supreme Court of Mississippi, 2025-AD-00001-SCT (appointing Timothy Lewis as Deputy Marshal of the Supreme Court of Mississippi)
The Mississippi Court of Appeals handed down five opinions on Tuesday. There is something for everybody with a workers’ comp case, an unemployment case, a direct criminal appeal, a premises liability case, and a PCR case.
King v. State, 2023-CA-00770-COA (Civil – PCR) Reversing the circuit court’s dismissal of the claimant’s motion for PCR wherein he claimed the circuit court improperly revoked probation and participation in drug court and imposed his original suspended sentence, holding that the claimant was statutorily barred from participating in drug court because he was charged with and pleaded guilty to a crime of violence, and since his probation was revoked only twice for violations of drug court conditions, the circuit court lacked authority to impose the full sentence, and remanding with instructions to reinstate the probation. (5-2-3: Wilson concurred in part and in the result without writing; Emfinger concurred in result only without writing; Lawrence dissented, joined by Weddle and St. Pe’, joined in part by Emfinger)
Porter v. State, 2023-KA-00809-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err in denying a motion to suppress the defendant’s (who was 17 at the time) statements to police, that the defendant had no viable Sixth Amendment claim based on the size and composition of the jury venire without proof that minorities were intentionally or systematically excluded because of their race, that the trial court did not abuse its discretion in limiting the defendant’s attorney’s opening statement, that the trial court did not err in limiting the defendant’s questioning of a witness for impeachment purposes, that the trial court did not err by excluding two character witnesses, that the trial court did not err by refusing the defendant’s lesser-included offense instruction of manslaughter because they had no foundation in the evidence and because a reasonable jury could find the defendant guilty of capital murder, that the trial court did not err by not granting a mistrial for the State’s remarks during closing, and that the trial court did not err by not granting a mistrial when the jury sent out its first note because the defendant did not obtain a ruling and because the assignment was meritless, and that the cumulative error doctrine did not apply. (8-2-0: Wilson and Westbrooks concurred in result only without separate written opinion)
Animal Rescue Fund of Mississippi v. Mississippi Department of Employment Security, 2024-CC-00152-COA (Civil – State Boards & Agencies) Affirming an award of unemployment benefits after MDES initially determined that the claimant voluntarily left his employment, holding that the Board of Review’s decision was supported by substantial evidence so the circuit court did not abuse its discretion in affirming it. (9-1-0: Wilson concurred in part and in the result without writing)
Harris v. Casino Vicksburg, LLC, 2023-CA-00959-COA (Civil – Personal Injury) Affirming summary judgment in favor of a casino in a premises liability case arising from a chair that slipped out from under the plaintiff, holding that the plaintiff failed to show the existence of a dangerous condition. (7-3: Westbrooks dissented, joined by Carlton and McDonald)
Caffey v. Forrest Health, 2023-WC-01232-COA (Civil – Workers’ Comp) Affirming the MWCC’s decision reversing the AJ’s finding that the claimant sustained a 50% loss of wage-earning capacity, holding that the though the MWCC erred in its Jordan analysis on whether employment was offered post-MMI the claimant nonetheless did not make a prima facie case under Jordan because he never reported back to work after MMI or under Thompson because there was no evidence the claimant independently searched for employment. (8-1-1: Wilson concurred in part and in the result without writing; McDonald concurred in part and dissented in part without writing)
Other Orders
Ellzey v. State, 2022-KA-00797-COA (denying rehearing)
Allred v. Tishomingo County, Mississippi, 2023-CA-00569-COA (denying rehearing)
Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (denying rehearing)
Sullivant v. Freeland, 2023-CP-01393-COA (granting appelles’ motion for monetary sanctions)
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 Court of Appeals handed down four opinions today. Two criminal appeal (one with a reversal), a sales tax liability case, and a 12(b)(6) dismissal of a tort suit against an attorney for filing a motion to quash a post-trial deposition subpoena on behalf of a client.
McCoy V. Graham, 2024-CA-00286-COA (Civil – State Boards & Agencies) Affirming summary judgment in favor of the DOR assessment of tax liabilities for failure to pay sales tax, holding that the evidence showed that the DOR filed its responsible person assessment within thirty-six months from the date the tax liability became final. (10-0)
Sullivant v. Freeland, 2023-CP-01393-COA (Civil – Other) Affirming order granting motion to dismiss complaint and denying the motion to amend the complaint, holding that the plaintiff’s tort suit against an attorney who moved to quash the plaintiff’s post-trial deposition on behalf of a client in another case failed to state a claim under Rule 12(b)(6) and that any amendment would be futile. (10-0)
Harper v. State, 2022-KA-00758-COA (Criminal – Felony) Affirming in part and reversing in part after convictions of three counts of culpable negligence manslaughter and one count of felony fleeing, holding that the prosecution for the offense of felony fleeing was not commenced within two years of the date of the offense and was therefore barred by the statute of limitations, and remanding for resentencing on the three counts of culpable negligence manslaughter. (7-3: Westbrooks dissented, joined by McDonald, and Lawrence)
Jordan v. State, 2023-KA-01222-COA (Criminal – Felony) Affirming conviction of first degree murder, holding that there was sufficient evidence to support the conviction and that the verdict was not against the overwhelming weight of the evidence. (10-0)
Other Orders
Tisdale v. South Central Regional Medical Center, 2023-CA-00231-COA (denying rehearing)
Eason v. South Central Regional Medical Center, 2023-CA-00261-COA (denying rehearing)
Baker v. State, 2023-KA-01111-COA (recalling mandate to allow pro se motion for rehearing to proceed on its merits)
Collins v. State, 2024-TS-01333-COA (granting motion to proceed out of time)
Siggers v. State, 2025-TS-00041-COA (finding pro se appellant’s response to show-cause issue well taken)
Ashby v. State, 2025-TS-00076-COA (allowing appeal to proceed on the merits)
The Mississippi Court of Appeals handed down five opinions today. Three of the cases involved state boards and agencies: one unemployment case, one termination case, and one case where a petitioner sought to amend or append his birth certificate. There are also two direct criminal appeals.
Darden v. MDES, 2024-CC-00159-COA (Civil – State Boards & Agencies) Affirming denial of unemployment benefits as untimely, holding that substantial record evidence supported the circuit court’s order affirming the agency’s decision. (10-0)
Jack v. City of Meridian, 2023-CC-01339-COA (Civil – State Boards & Agencies) Affirming employment termination, holding that the decision was not arbitrary and capricious and not in good faith, that the city provided substantial evidence that the plaintiff violated policies, and that the evidence did not show that the plaintiff was arbitrarily treated differently from two white male officers. (9-1-0: Lawrence concurred in result only without writing)
Malone-Bey v. Mississippi State Board of Health, 2024-SA-00288-COA (Civil – State Boards & Agencies) Affirming the chancery court’s decision denying a petition to amend birth certificate to designate the petitioner’s race as “white: Asiatic/Moor,” holding that the chancery court correctly ruled that it lacked the authority to amend a birth certificate to include additional categories of information and that neither the Board or the chancery court violated the petitioner’s constitutional or civil rights. (10-0)
Terry v. State, 2023-KA-00979-COA (Criminal – Felony) Affirming conviction of kidnapping, holding that the evidence was sufficient to sustain the kidnapping conviction, that the verdict was not against the weight of the evidence, that the trial court did not abuse its discretion by allowing the victim’s testimony about the crimes of co-defendants, and that the defendant’s proposed simple assault instruction was properly rejected. (10-0)
McNaughton v. State, 2023-KA-01099-COA (Criminal – Felony) Affirming conviction of second-degree murder after the defendant drove over his ex-girlfriend in a parking lost causing fatal injuries, holding that the trial court did not abuse its discretion admitting evidence of prior incidents of domestic abuse, that there was sufficient evidence to support the conviction, and that the conviction was not against the overwhelming weight of the evidence. (9-1-0: Wesbtrooks concurred in result only without writing)
Other Orders
In the Interest of A.R.H., a Minor: Malone v. Jackson County Dept. of Child Protective Services, 2023-CA-00420-COA (denying rehearing)
Arnold v. State, 2023-KA-00519-COA (denying rehearing)
Cauthen v. State, 2023-KA-00589-COA (denying rehearing)
The Mississippi Court of Appeals handed down eight opinions today and a bonus opinion Thursday of last week. There is a notably high reversal rate in these cases. The decision from last Thursday reversed a conviction of capital murder. The eight decisions handed down today cover personal injury, custody, divorce, felony convictions, wills and estates, and PCR with five of them at least reversing the trial court in part.
February 20, 2025
Roncali v. State, 2023-KA-00173-COA (Criminal – Felony) Reversing conviction of capital murder and remanding for a new trial, holding that the evidence was sufficient to support the verdict but that trial court abused its discretion allowing a State’s expert to testify that the manner of death was homicide from a third person injecting methamphetamine into the victim. Expert Testimony: 8-2 (Carlton dissented as to this issue, joined by Barnes, Lawrence, and St. Pe’) Sufficiency of the evidence: 8-2 (Carlton concurred as to this issue, joined by Barnes, Lawrence, and St. Pe’; Westbrooks dissented as to this issue, joined by McDonald and joined in party by McCarty who joined the principal opinion)
February 25, 2025
In the Matter of Disbursement of Real Property Assets to Heir and/or The Sale of Real Property: Montgomery v. Whatley, 2022-CP-00992-COA (Civil – Wills, Trusts & Estates) Reversing order permitting disbursement of real property one of the decedent’s children, holding that there was insufficient evidence in the record to support the chancellor’s finding that the decedent was the fee simple owner of the tract at issue and remanding to set aside the “Executrix’s Deed” and for further proceedings. (7-2-0: Westbrooks and McDonald concurred in result only without writing; Lawrence did not participate)
Trehern v. Spivey, 2023-CA-01002-COA (Civil – Custody) Reversing the chancellor’s custody modification order awarding the father legal and physical custody with no visitation awarded to the mother, holding that the chancellor did not find or identify any material change in circumstances, did not separately assess whether the change was adverse to the child’s welfare, and did not make on-the-record findings as to the Albright factors. (10-0)
Crump v. State, 2023-CP-00795-COA (Civil – PCR) Affirming denial of PCR motion, holding that the circuit court did not err in finding it the motion untimely, successive, and barred by res judicata. (10-0)
Fairchild v. KS Ocean Springs Real Estate LLC, 2023-CA-00928-COA (Civil – Personal Injury) Affirming summary judgment in favor of the defendants in a premises liability case, holding that the trial court did not abuse its discretion in striking an affidavit supporting the plaintiff’s opposition as a discovery violation and did not err in finding that there was no evidence that the defendants had actual or constructive knowledge of a dangerous condition. (9-1-0: Wilson concurred in part and in the result without writing)
Black v. Black, 2023-CA-01098-COA (Civil – Domestic Relations) Affirming the chancellor’s order modifying custody in favor of the father, holding that the mother’s appeal of the modification judgment was not timely and therefore barred and that the trial court did not err in denying her relief from the judgment under Rule 60(b). (10-0)
Practice Point – The Court noted that the Rule 60(b) motion filed more than ten days after the judgment does not toll the time for filing an appeal:
Colbert v. Colbert, 2022-CA-01293-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancellor’s decision denying the husband’s claim for divorce and granting the wife’s request for separate maintenance and child support, holding that the husband’s argument that the antenuptial agreement bars a grant of separate maintenance was procedurally barred for failure to present it to the trial court but reversing on the child support issue because the chancellor did not make the required findings of fact. (9-0: St. Pe’ did not participate)
Star v. State, 2023-KA-00788-COA (Civil – Felony) Affirming in part and reversing/rendering in part after the defendant was convicted of aggravated assault and being a felon in possession of a weapon, holding that the indictment and jury instruction for felon in possession of a weapon were deficient for failing to include the elements and reversing the conviction of felon in possession, but holding that the trial court did not err regarding the aggravated assault jury instruction. (7-2-1: Wilson concurred in part and in the result without writing; Barnes concurred in result only without writing; Emfinger concurred in part and dissented in part)
Roberts v. Roberts, 2023-CA-00934-COA (Civil – Domestic Relations) Reversing the chancellor’s equitable division of the marital estate and award of alimony, holding that the chancellor erred in valuing the husband’s business and other assets which required remand on both the equitable division and alimony decisions. (9-0: Weddle did not participate)
Other Orders
Alexander v. Metropolitan Y.M.C.A., 20233-CP-01092-COA (denying rehearing)
Magee v. State, 2023-CP-00008-COA (denying rehearing)
Chung v. State, 2023-CA-00362-COA (denying rehearing)
Doukas v. Kiln Self Storage, 2023-WC-01195-COA (denying rehearing)
The Mississippi Supreme Court handed down four opinions today. There is an interesting Fourth Amendment case of first impression regarding a cell phone search. The lone civil decision has thorough discussions of the doctrines of mootness, standing, and judicial admissions.
Lenoir v. State, 2023-IA-01181-SCT (Criminal – Felony) Affirming an interlocutory order of the circuit court denying a motion to disqualify the judge and quash the indictment, holding that the joint order of the two circuit judges in the district recusing themselves and appointing a circuit judge from another district was valid under Section 9-1-105(5), that the appointment of another circuit judge did not fail for lack of notice, that the Court would not consider evidence that was not in the record on appeal but attached to a brief, that dismissal was not warranted where he had not been formally appointed at the time the case was presented to the grand jury because there was not evidence of improper influence, that a recused judge’s signature on a the grand jury report did not equate to “hearing any matters arising in this case,” and that an argument that the special judge’s issuance of search warrants is premature. (7-0: Randolph and Sullivan did not participate)
Watts v. State, 2023-KA-00893-SCT (Criminal – Felony) Affirming conviction of first degree murder, holding that the evidence was sufficient to support the conviction which was not against the overwhelming weight of the evidence, that a jury instruction on deliberate design killing to which that was no objection was not improper as a matter of law, and that a jury instruction on inferring malice aforethought was not an improper comment on the weight of the evidence. (9-0)
Knight v. State, 2022-KA-01138-SCT (Criminal – Felony) Affirming conviction of two counts of exploitation of a child and one count of touching a child, holding that a warrantless search of the defendant’s cellphone did not violate the Fourth Amendment under the private search doctrine, that the prosecutor’s complained-of comments were not so prejudicial or inflammatory as to require reversal, that there was no merit to the challenges to the search warrants, that the claim that the State knowingly presented false evidence was without merit and that it was within the jury’s province to weight inconsistent and contradictory testimony, that the disproportionate sentence argument was barred fro failure to address the Solem factors, passing on the ineffective-assistance-of-counsel claim, and that without error there could be no cumulative error reversal. (5-1-2: King concurred in part and in the result without writing; Ishee dissented, joined by Sullivan; Randolph did not participate)
Lee v. The City of Pascagoula, 2022-CT-01190-SCT (Civil – State Boards & Agencies) Vacating judgment of the Court of Appeals and dismissing the appeal for mootness, holding that the appeal was moot because the motel that it involved had been razed and that the plaintiff lacked standing because she no longer had an interest in the property. (9-0)
Practice Point – The Mississippi Supreme Court relied on Fifth Circuit precedent and held that appellate courts can treat statements in briefs as binding admissions of fact:
Other Orders
Lenoir v. State, 2023-IA-01181-SCT (granting motion to strike)
Mississippi Appeals Blog 