The Mississippi Supreme Court handed down four opinions yesterday. There was also an order dismissing an appeal as untimely based on a defect in a motion for reconsideration filed with the trial court that is worth a quick read.
Mohiuddin v. Jackson County, 2024-CA-00759-SCT (Civil – State Boards and Agencies) Affirming the circuit court’s judgment upholding the Board of Supervisor’s approval of a special exception to a zoning ordinance, holding that the Board’s interpretation of its zoning ordinance was correct and that is decision granting a special exception was not arbitrary and capricious and was supported by substantial evidence. (9-0: Branning for the Court)
Miller v. State, 2024-KA-00804-SCT (Criminal – Felony) Affirming conviction of aggravated assault, holding the indictment was not defective and that the defense was not prejudiced by the State’s amendment of the indictment. (7-1-0: Griffis for the Court; King concurred in result only without writing)
Thompson v. Estate of Lee, 2025-CA-00286-SCT (Civil – Wills, Trusts & Estates) Reversing the chancellor’s decision in a claim brought against an estate by the former clients of the decedent regarding misappropriated client funds, holding that the chancellor erred in dismissing the clients’ claims where the court had previously ruled that MDL funds at issue belonged to the clients and erred in finding that the former clients were required to maintain a judgment against the decedent or his estate to recover their funds that he held in trust. (8-1: Chamberlin for the Court; Randolph concurred in result only without writing)
Busby v. State, 2024-KA-00482-SCT (Criminal – Felony) Affirming conviction of sale of a Schedule II substance, holding that there was no Confrontation Clause violation where the trial court admitted testimony from a drug-analyst expert to testify that the substance sold was methamphetamine and admitted the law report through that expert where the expert was the technical reviewer and not the initial analyst. (5-4: Maxwell for the Court; Coleman concurred in result only, joined by King, Ishee, and Sullivan.)
Other Orders
P.K. Loyacono, PLLC v. Raymond James Financial Services, Inc., 2024-CA-00791-SCT (granting motion to dismiss appeal from final judgment for lack of jurisdiction)
Practice Point – This Order is a cautionary tale. A “motion for reconsideration” that does not state grounds for relief does not toll the appeal deadline:
In Re: Advisory Committee on Rules, 89-R-99016-SCT (reappointing the following persons for three-year terms (1/1/26 to 12/31/28) as members of the Advisory Committee on Rules: Hon. Crystal Wise Martin, Hon. Celeste Embrey Wilson, David P. Pitre, Esq., Corey Clayton Cranford, Esq., Lance L. Stevens, Esq., and Katherine S. Kerby, Esq.)
Jones v. State, 2022-CT-01124-SCT (denying cert)
Davis v. State, 2023-CT-00811-SCT (denying cert)
Lee v. Doolittle, 2023-CT-00969-SCT (granting cert)
Phinizee v. State, 2023-CT-01090-SCT (denying cert)
Fortner v. IMS Engineers, Inc., 2023-CT-01170-SCT (denying cert)
Smith v. State, 2024-CT-00162-SCT (denying cert)
Underwood v. State, 2024-CT-00423-SCT (dismissing cert petition as untimely)
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 Court of Appeals handed down two opinions today. Both are direct criminal appeals.I will be out of the office on Thursday, so I’ll include this week’s Mississippi Supreme Court decisions in a post next week.
Smith v. State, 2023-KA-00703-COA (Criminal – Felony) Affirming conviction of of burglary of a dwelling and possession of a weapon as a felon, holding that the verdict was not against the overwhelming weight of the evidence where the jury was presented with two different narratives of the altercation and performed its duty to weight the credibility of the competing evidence. (10-0)
Ellzey v. State, 2022-KA-00797-COA (Criminal – Felony) Affirming conviction of three counts of fondling, holding that the trial court did not err in denying the motion to quash the indictment, in finding that an alleged statement by a juror regarding the incompetency of a government agency did not constitute impermissible outside influence, in limiting cross-examination of a witness, in not excluding or limiting counseling records under the plain error doctrine, in overruling the defendant’s objection to allegedly speculative testimony, in overruling a hearsay objection because the testimony was not offered to prove the truth of the matter asserted, in overruling an objection to other allegedly speculative testimony (or committed harmless error), in overruling an objection to testimony that allegedly vouched for the victim’s credibility, or in not sua sponte objecting to statements in closing argument, and dismissing the ineffectively assistance of counsel claim without prejudice, holding that there could be no cumulative error where there was at most one harmless error, and holding that other issues were waived for failure to raise them in the trial court. (9-1-0: McCarty specially concurred, joined by Westbrooks and McDonald)
Other Orders
Martin v. Arceneaux, 2022-CA-01035-COA (denying rehearing)
Smith v. Mitchell, 2023-CA-00259-COA (denying rehearing)
Carpenter v. State, 2023-KA-00580-COA (denying rehearing)
Shipp v. State, 2023-KA-00655-COA (denying rehearing)
The Mississippi Supreme Court handed down five opinions today. There is an ESLA case, a restrictive covenants case, two direct criminal appeals with reversals, and a significant defamation case.
In Re Validation of up to $27,600,000 Trust Certificates Evidencing Proportional Interests in a Lease by The Simpson County School District: Floyd v. Simpson County School Board, 2023-CA-01126-SCT (Civil – Other) Affirming the chancellor’s decision validating of trust certificates for a lease/leaseback transaction to fund construction of a school, holding that nunc pro tunc amendment to the June 10, 2021 minutes was lawful, that the Board’s notice satisfied statutory requirements of the ESLA, that the objecter was afforded adequate due process as required by the ESLA, that the Board had authority to create a nonprofit corporation, and that the ESLA is still applicable. (8-0: Griffis did not participate.)
Smith v. Brockway, 2023-CA-01027-SCT (Civil – Real Property) Affirming the chancery court’s denial of a petition for injunction and declaratory relief related to restrictive covenants and manufactured housing, holding that the restrictive covenants were unenforceable because they were not signed by the grantor. (9-0)
Toler v. State, 2023-KA-00712-SCT (Criminal – Felony) Affirming in part and reversing in part after the defendant was convicted of four counts of aggravated assault, one count of shooting into a motor vehicle, four counts of aggravated assault against officers, and failure to stop a motor vehicle for law enforcement, holding (1) that there was sufficient evidence to support the three challenged convictions of aggravated assault against officers who were shot at but not struck, (2) that the indictment was multiplicitous for charging the defendant with for counts of aggravated assault based on firing one shot at four individuals such that merger applied warranting a remand to vacate, merge, and resentence, and (3) that the trial court did not abuse its discretion excluding evidence of the defendant’s peaceful character. (9-0)
Fagan v. Faulkner, 2022-CT-00130-SCT (Civil – Torts) Affirming the Court of Appeals and reversing the judgments of the circuit court and county court in a defamation case, holding that the circuit court and county court erred by denying the defendant’s motion for directed verdict because as atrocious as the vulgarity was, it was non-actionable “name calling” that did not defame the plaintiff’s professional abilities. (5-4: Randolph dissented, joined by Kitchens, King, and Ishee)
Ratcliff v. State, 2022-CT-00690-SCT (Criminal – Felony) Reversing the Court of Appeals and the conviction of possession of a stolen firearm, holding that the State failed to present sufficient evidence of the defendant’s guilty knowledge to merit a jury question on that charge. (8-0: Randolph did not participate)
Other Orders
In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing or reappointing as members of the Advisory Committee on Rules: Hon. Latrice A. Westbrooks, Hon. Carter Bise, Hon. W. Ashley Hines, Hon. Carol Jones Russell, William M. Gage, Esq., Justin T. Cook, Esq., Graham P. Carner, Esq., and Nicholas K. Thompson, Esq.)
Estate of Green v. Michini, 2022-CT-00365-SCT (denying cert)
Chatman v. State, 2023-KA-00583-SCT (denying rehearing)
In Re Validation of up to $27,600,000 Trust Certificates Evidencing Proportional Interests in a Lease by The Simpson County School District: Floyd v. Simpson County School Board, 2023-CA-01126-SCT (granting motion for leave to file a corrected reply brief)
The Mississippi Court of Appeals handed down eight opinions today. There are four direct criminal appeals, a workers’ comp case, a civil asset forfeiture case, a real property case regarding a short-term rental, and an attorney fee claim against an estate.
Body v. State, 2023-KA-00495-COA (Criminal – Felony) Affirming conviction of statutory rape, holding that the trial court did not abuse its discretion refusing the defendant’s alibi instructions where the “alibi defense was nothing more than attempt to cloak his simple denial of the crime charged.” (8-1-0: Wilson concurred in part and in the result without writing)
Lepard v. State, 2022-KA-01159-COA (Criminal – Felony) Affirming conviction of fondling, holding that the trial court did not abuse its discretion in instructing the jury on the elements of the offense and that the indictment was not defective and included all the essential elements. (9-0)
In the Matter of the Estate of Stimley: Morton Law Firm, PLLC v. Merchant, 2023-CA-00940-COA (Civil – Contract) Reversing the chancery court’s award of attorney’s fees and expenses payable by the estate, holding that the record did not show a consideration of the McKee factors and remanding for further proceedings. (8-1-0: Carlton did not participate)
Chung v. State, 2023-CA-00362-COA (Civil – Other) Reversing the circuit court’s decision in a civil asset forfeiture after a bench trial, holding that the owner gave plausible explanations for having the cash and that the State presented insufficient evidence to demonstrate a connection between the owner and drug activity. (5-4: Wilson dissented, joined by Carlton, Lawrence, and Emfinger)
Norton v. State, 2023-KA-00475-COA (Criminal – Felony) Affirming conviction of possession of meth and possession of a firearm by a felon, declining to address the lone issue of ineffective assistance of counsel on direct appeal and leaving it to be pursued through a PCR motion. (8-1-0: Emfinger concurred in result only without writing)
Arnold v. State, 2023-KA-00519-COA (Criminal – Felony) Affirming conviction of three counts of sexual battery, holding that the trial court did not allow improper character evidence from two witnesses that testified the defendant made advances or abused them as children because that testimony showed proof of motive and established a common plan or scheme and holding that there was no merit to the defendant’s claim of prosecutorial misconduct. (8-0: Smith did not participate)
City of Biloxi v. McDonald, 2023-CA-00777-COA (Civil – Real Property) Affirming the circuit court’s judgment which reversed the City Council’s decision denying property owners’ application seeking a conditional-use permit for a short-term rental, holding that the Council’s decision was “the epitome of arbitrary and capricious” where the adjacent property on the same parcel of land had been approved and the owners had spent $70,000 on improvements to address neighbors’ expressed concerns. (6-2: Carlton dissented, joined by Wilson and Lawrence)
Doukas v. Kiln Self Storage, 2023-WC-01195-COA (Civil – Workers’ Comp) Affirming a finding that the claimant was not entitled to indemnity benefits for her left left leg and that the injury to her right leg did not render her permanent and totally disabled, holding that the Commission’s decision was supported by substantial evidence. (5-4: Lawrence dissented, joined by Westbrooks, McDonald, and Smith; McDonald also noted a separate dissent without writing)
Other Orders
White v. The Home Depot, 2022-WC-00894-COA (denying rehearing)
Frazier v. State, 20222-CT-00896 (denying pro se motion to recall mandate)
Brown v. State, 2023-CP-00171-COA (denying untimely pro se motion for additional time to file motion for rehearing and request for appointed counsel)
Haley v. Brewer, 2023-SA-00571-COA (denying rehearing)
Fortner v. Bratcher, 2023-CP-00663-COA (granting appelle’s motion for appellate attorney’s fees)
Thornhill v. Thornhill, 2023-CA-00714-COA (denying appellee’s motion to dismiss the appeal and granting appellee’s request for additional time to file a responsive brief)
Quilantan v. State, 2024-CP-00357-COA (granting pro se motion to reinstate appeal)
Johnson v. State, 2024-TS-00650-COA (remanding appellant’s motion for leave to proceed in forma pauperis)
Riley v. State, 2024-TS-00833-COA (dismissing appeal for lack of appealable judgment)
The Mississippi Court of Appeals handed down a bounty of twelve opinions yesterday. I noticed a stray opinion from Thursday, May 9 so that is also summarized below. With a total of thirteen opinions, there is a lot of ground covered.
Martin v. State, 2023-KA-00044-COA (Criminal – Felony) Affirming conviction of aggravated assault and armed robbery after a trial in absentia, holding that the verdicts were not against the overwhelming weight of the evidence. (10-0)
Tilley v. Gibbs, 2022-CA-01150-COA (Civil – Domestic Relations) Affirming judgment awarding physical custody of a child to the father, holding that the chancellor did not err in his Albright analysis and that substantial, credible evidence supported the custody determination. (10-0)
Hamer v. State, 023-CP-00701-COA (Civil – PCR) Affirming denial of relief and dismissal of PCR motion without an evidentiary hearing, holding that the PCR motion lacked sufficient support to warrant a evidentiary hearing. (8-2-0: Westbrooks and McDonald concurred in result only without writing)
McVay v. State, 2022-KA-00523-COA (Criminal – Felony) Affirming conviction of four counts of capital murder and one count of possession of a firearm by a felon, holding that the trial court did not commit plain error in admitting evidence of prior bad acts during cross-examination of the defendant and holding that the defendant’s trial counsel was not constitutionally ineffective for failing to object. (7-2-0: Wilson and Westbrooks concurred in result only without separate written opinion; Carlton did not participate)
Jackson v. State, 2022-KA-01143-COA (Criminal – Felony) Affirming conviction of first-degree murder and burglary and sentence to life without eligibility for early release, probation, or parole, holding that the indictment was not fatally defective; that there was no plain error in denying a motion to suppress the defendant’s statements to law enforcement where the defendant made a knowing, intelligent, and voluntary waiver of Miranda; that the trial court did not err in refusing the defendant’s proposed insanity defense and imperfect self-defense instructions; and that the verdicts were not against the overwhelming weight of the evidence. (8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)
Practice Point – This is a handy citation to tuck away for one of those “I know its true by I can’t find a case that says so” situations:
Thompson v. State, 2023-CP-00218-COA (Civil – PCR) Affirming dismissal of the petitioner’s fourth and fifth PCR motions, holding that the circuit court did not err in finding them time-barred. (10-0)
Smith v. West, 2023-CA-00297-COA (Civil – Personal Injury) Affirming dismissal for failure to prosecute a personal injury case, holding that the trial court did not abuse its discretion after granting several continuances over nearly ten years since the action was commenced. (10-0)
Signaigo v. Grinstead, 2022-CA-01212-COA (Civil – Real Property) Affirming in part and reversing in part the chancellor’s rulings in an adverse possession action, affirming the finding that the plaintiff could not prove the ownership element but reversing the finding that title was vested in the defendant as a matter of law because that issue was beyond the scope of the motion for summary judgment. (8-2-0: Wilson and Westbrooks concurred in result only without writing)
McKenzie v. McKenzie, 2022-CA-01175-COA (Civil – Domestic Relations) Affirming the chancellor’s findings in a divorce proceeding, holding that the chancellor did not err in the equitable division of marital property, in determining the amount of child support, in determining the amount of alimony, or in denying the mother’s request for attorney’s fees. (9-0: Smith did not participate)
Carr v. State, 2022-KA-00491-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the State did not commit prosecutorial misconduct during closing arguments such that the court was required to intervene on its own initiative. (10-0)
Pickens v. State, 2022-KA-00822-COA (Criminal – Felony) Affirming conviction of meth while in possession of a firearm, holding that after reviewing counsel’s Lindsey brief and independently reviewing the record that there were no errors warranting reversal. (10-0)
Hearn v. State, 2023-CP-00275-COA (Civil – PCR) Affirming dismissal of PCR motion, holding that the circuit court did not err in finding the motion time-barred and that no statutory exceptions applied. (9-0: Smith did not participate)
From May 9, 2024
Daniels v. State, 2022-KA-00705-COA (Criminal – Felony) Affirming in part and reversing in part after the the defendant was convicted of one count of manslaughter as a lesser-included offense of murder, three counts of aggravated assault, and one count of shooting into an occupied dwelling, holding that indictment’s error as to the count for murder was harmless so the conviction of the lesser-included offense of manslaughter was affirmed but holding that the indictment was legally insufficient as to aggravated assault counts and that the error was compounded by repetition in jury instructions and the State’s closing arguments. 4-1*-5: Westbrooks specially concurred, joined by McDonald, Lawrence and Smith (each of whom also joined the lead opinion); Emfinger concurred in part and dissented in part, joined by Barnes, Carlton, Wilson, and McCarty.)
Other Orders
Arnold v. State, 2021-KA-01426-COA (denying rehearing)
Rutland v. Regions Bank, 2022-CA-00720-COA (denying rehearing)
Malone v. State, 2022-CP-00958-COA (denying rehearing)
Boyett v. Cain, 2022-CP-00978-COA (denying rehearing)
EEECHO Inc. v. Mississippi Environmental Quality Permit Board, 2022-SA-01068-COA (denying rehearing)
Boyette v. State, 2022-CP-01239-COA (denying rehearing)
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)
The Mississippi Supreme Court handed down four opinions today. Three are direct criminal appeals and one is an interlocutory appeal of a tort suit that a litigant filed against counsel for the opposing party. One of the criminal cases was taken up so the Supreme Court could address for the first time the issue of whether the crime of attempted murder requires an “overt act” under the amended 97-1-7. The Supreme Court also granted cert in a child custody modification case.
Anderson v. State, 2022-KA-00530-SCT (Criminal – Felony) Affirming conviction of first-degree murder and life sentence, holding that the trial court did not err in refusing a heat-of-passion instruction or in allowing the defendant’s confession to be presented to the jury, and that the verdict was supported by sufficient evidence and not against the overwhelming weight of it. (9-0)
Beale v. State, 2020-CT-00614-SCT (Criminal – Felony) Affirming conviction of attempted murder on cert, holding that the indictment correctly stated the necessary elements of the crime and that two jury instructions did not constructively amend the indictment. (6-3: King dissented, joined by Kitchens and Coleman.)
NOTE – The Mississippi Supreme Court granted cert to address for the first time the issue of whether the crime of attempted murder requires an “overt act” under the amended Miss. Code Ann. § 97-1-7:
Henley, Lotterhos & Henley, PLLC v. Bryant, 2021-IA-00994-SCT (Civil – Torts) Reversing the circuit court’s denial of a law firm’s motion to dismiss/summary judgment in a lawsuit asserting a slew of intentional torts stemming from the handing of a subrogation claim, holding that attorneys do not owe duties to adverse parties that can give rise to tort liability and remanding for litigation of the claims against the insurance company. (5-2-1: Randolph and Griffis concurred in result only without separate written opinion; King dissented; Kitchens did not participate.)
Spiers v. State, 2022-KA-00038-SCT (Criminal – Felony) Affirming conviction of burglary of a dwelling and attempted sexual battery, holding that the defendant waived the issue of whether the trial court erred by granting a jury instruction requiring the defendant to prove consent by clear and convincing evidence and that the plain error doctrine did not apply, that the defendant failed to establish a case of ineffective assistance as to the instruction, and that the trial court did not commit plain error with regard to alleged prosecutorial misconduct during closing. (5-1-3: Maxwell concurred in part and in result without separate written opinion; King dissented, joined by Kitchens and Coleman)
Other Orders
Price v. State, 2019-CT–01890-SCT (denying cert)
Blagodirova v. Schrock, 2020-CT-01162-SCT (granting cert) (You can read my summary of the 4-2-4 COA decision by clicking here.)
Davis v. Davis, 2020-CA-01304-SCT (denying rehearing)
Bowman v. State, 2020-CT-01371-COA (denying cert)
Tennesen v. City of Hattiesburg, 2021-CT-00137-SCT (denying cert)
The Mississippi Court of Appeals handed down nine opinions today. Today’s offerings include a divorce case, a DUI/marijuana case, a personal injury case, a malicious mischief case, a jurisdiction case with Rule 54(b) claiming more victims, and a handful of PCR cases.
Camphor v. State, 2021-CP-00048-COA (Civil – PCR) Affirming denial of PCR motion asserting ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous. (All judges concurred.)
Powell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (Civil – Real Property/Appellate Jurisdiction/Rule 54(b)) Dismissing appeal of the chancery court’s order dismissing the debtor’s complaint with prejudice and granting the lender’s counterclaim seeking to proceed with a judicial foreclosure, holding that (1) because the counterclaim for judicial foreclosure was still pending the chancery court’s order did not adjudicate all claims against all parties and (2) the chancery court’s order did not contain the certification required by Rule 54(b). (All judges concurred.)
Klis v. State, 2021-CA-00349-COA (Civil – PCR) Affirming the circuit court’s denial of the PCR motion, holding that the circuit court did not err in determining that the motion was time-barred and that his ineffective-assistance of counsel claim did not provide an exception to the bar. (Judge Smith did not participate.)
Short v. State, 2021-KA-00499-COA (Criminal – Felony/Jury Instructions) Affirming conviction of malicious mischief, holding that a jury instruction setting forth the elements of malicious mischief did not constructively amend the indictment because the record failed to show the alleged variance and, in light of the lack of objection by the defendant at trial, there was no plain error by the circuit judge. (All judges concurred.)
Montgomery v. Montgomery, 2020-CP-01135-COA (Civil – Domestic Relations/Divorce/Habitual Cruel and Inhuman Treatment) Affirming the chancery court’s judgment of divorce and final judgment regarding division of property and other financial matters, holding that the chancery court did not err in granting the husband a divorce on the ground of habitual cruel and inhuman treatment which included throwing items, death threats, and behavior that caused the wife’s family to try to get her to seek medical or psychiatric help. Regarding division of property, the Court of Appeals held that the chancery court did not err in dividing the property as the parties had agreed to. The Court of Appeals handled this case graciously, but appropriately noted that the pro se appellant had “waived consideration of the issues she raises on appeal.” (All judges concurred.)
NOTE – Hiring an attorney to handle your appeal is generally a good idea. Relatedly, if you can’t find one to take your case, it might be a sign. The appellant in this case represented herself and it did not go well. For example:
Frost v. State, 2021-CA-00152-COA (Civil – PCR) Affirming the circuit court’s denial of the plaintiff’s petition for expungement, holding that the circuit court did not err in ruling that it had no jurisdiction. (Judge Wilson and Judge Emfinger concurred in part and in result without separate written opinion. Judge Smith did not participate.)
Pipkin v. State, 2021-CA-00517-COA (Civil – PCR) Affirming the circuit court’s denial of the plaintiff’s second motion for PCR, holding that the plaintiff failed to show that he had a procedurally-viable claim or an applicable exception to the procedural bar. (Judge Wilson and Judge Lawrence concurred in part and in the result without separate written opinion)
Borsi v. State, 2021-KM-00643-COA (Criminal – Misdemeanor/DUI/Marijuana) Affirming a conviction of DUI of marijuana, holding that the roadblock that led to the defendant’s arrest was for a proper purpose and conducted consistent with MHP’s general practice so there was no Fourth Amendment violation, that the defendant was not under custodial interrogation when he admitted to smoking marijuana so there was no Miranda violation, that the law was properly applied based upon “influence” rather than “impairment,” and that the trial court (in a bench trial) properly relied upon witness testimony and the evidence presented at trial. The defendant did not leave empty-handed, as the Court of Appeals reversed the assessment of an $85.00 transfer fee by the circuit clerk. (Chief JUdge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)
NOTE – This is the second opinion in the last few weeks where the defendant argued that he might have partaken of marijuana, but he was not impaired by it. And it is the second opinion where the Court of Appeals has held that “influence” is not synonymous with “impairment” in this context. (The other opinion was Briggs v. State summarized here.)
Brewer v. Bush, 2020-CA-00214-COA (Civil – Personal Injury/Jury Instructions) Affirming a defense verdict in a personal injury lawsuit where the plaintiff was helping the defendant put up a barbed wire fence and a bungee cord snapped and struck the plaintiff in the eye, holding that (1) a rational jury could have found that there was no master-servant relationship or that the tools provided were reasonably safe and that the defendant did not breach any duty owed to the plaintiff, (2) the jury was fairly instructed on the issue of proximate causation, (3) the trial judge did not abuse his discretion by giving the defendant’s instruction on “simple tools,” (4) submitting four verdict forms was not reversible error, and (5) the fact that defendant offered fifteen instructions did not result in prejudice to the plaintiff. (All judges concurred.)
Practice Point – Fight jury instructions with jury instructions. If you don’t like something about opposing counsel’s jury instructions, propose one that fixes it:
Other Orders
Ladner v. State, 2020-KA-00299-COA (denying rehearing) Denham v. Denham, 2020-CA-00675-COA (denying rehearing) Dew v. Harris, 2020-CA-01261-COA (denying rehearing) Miller v. State, 2021-TS-01412-COA (denying motion to reinstate appeal) Nelson v. State, 2022-TS-00413-COA (denying appellant’s motion to stay appeal and dismissing appeal without prejudice for lack of final judgment
The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.
I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today. Thanks, Management
Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence) Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate. (Judge Wilson concurred in part and the in the result without separate written opinion.)
Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR) Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied. (All judges concurred.)
Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation) Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence. (All judges concurred.)
PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:
This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)
Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale) Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue. (All judges concurred.)
Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:
NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.
Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation) Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question. (All judges concurred.)
Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn) Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do. (Judge Smith did not participate, all other judges concurred.)
Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure) Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right. (All judges concurred.)
Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence) Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence. (All judges concurred.)
Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act) Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation. (Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)
NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).
Other Opinions
Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing) Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)
Mississippi Appeals Blog 