Tag: jury instructions

Mississippi Supreme Court Decisions of April 13, 2023

I was out of town Thursday and Friday doing fun things with my family and summarizing hand downs didn’t fit the agenda. Without further delay, here are summaries of the four decisions the Mississippi Supreme Court handed down while I was out. There is a wrongful death/premises liability decision, a direct appeal of a murder conviction, and two real property contract decisions.

Deepak Jasco, LLC v. Palmer, 2021-IA-00702-SCT (Civil – Wrongful Death)
Reversing the denial of summary judgment in a premises liability case, holding that the plaintiff did not prove that the owner and operator of a convenience store adjacent to a lot where the plaintiff’s decedent was found stabbed and killed had actual or constructive knowledge that an atmosphere of violence existed on the premises.
(5-4-0: Maxwell concurred in part and in the result, joined by Randolph and Beam)

NOTE – Here is the crux of the Court’s analysis:

Anderson v. State, 2022-KA-00007-SCT (Criminal – Felony)
Affirming conviction of murder, holding that the trial court did not err by refusing an excusable homicide instruction based on heat of passion or by admitting evidence of the defendant’s prior bad act of using methamphetamine just before the shooting and for several days before where the defendant himself testified that he was high on meth when he shot his grandmother and it was relevant to his state of mind and motive.
(9-0)

Sel Business Services, LLC v. Lord, 2021-CT-00368-SCT (Civil – Real Property)
Affirming in part and reversing in part the chancellor’s grant of summary judgment in favor of a property owner who made an oral agreement to sell to one buyer but then sold to someone else, holding that while the statute of frauds barred the claim for specific performance the would-be buyer still had other equitable remedies available.
(9-0)

NOTE – The decisions specifically overruled Barriffe v. Estate of Nelson, 153 So. 3d 613 (Miss. 2014):

Luxe Homes, LLC v. Brewer, 2022-IA-00132-SCT (Civil – Contract)
Reversing the chancellor’s denial of a motion to transfer venue, holding that the terms of a venue provision in the contract between the parties were unambiguous, mandatory, and enforceable and that the transferred to the circuit court of the venue county even though the suit sought specific performance of a real estate contract.
(7-2-0: Kitchens and King concurred in result only without separate written opinion)

Other Orders

$153,340 v. State, 2020-CT-01409-SCT (cert denied)

Wilson v. City of Greenville, 2021-CT-00316-SCT (cert denied)

Johnson v. State, 2021-CT-00571-SCT (cert denied)

Hand Down Page

Mississippi Court of Appeals Decisions of March 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. There was nary a dissent, but a conviction of child exploitation was reversed. The are other felony opinions, two divorce cases, a contract case involving a defunct LLC, and a PCR case.

Nunn v. State, 2021-KA-01371-COA (Criminal – Felony)
Affirming conviction of having meth within 1,500 feet of a church, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mental competency evaluation where the trial court twice held a hearing to determine whether the defendant understood and appreciated the significance of the trial proceedings and had the ability to rationally aid in his defense or in denying the defendant’s entrapment instruction.
(10-0)

Singh v. State, 2022-CP-00273-COA (Civil – PCR)
Affirming denial of PCR motion, holding no error in revoking post-release supervision since the plaintiff absconded from supervision.
(10-0)

Williams v. Williams, 2021-CA-00758-COA (Civil – Domestic Relations)
Affirming judgment of divorce, holding that the chancellor’s valuation of the marital residence was based on evidentiary support in the record.
(10-0)

Wakefield v. State, 2021-KA-00187-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder, to kidnapping, and to auto theft, holding:
1. The circuit court had jurisdiction because it sat in one of the counties where the crimes were committed;
2. That the convictions did not violate the Double Jeopardy Clause even though the defendant gave just one car ride because he was an accessory to three distinct felonies so the merger doctrine did not apply;
3. That there was no error based on the weight or sufficiency of the evidence;
4. That the indictment was not defective for failing to include “intent” where it did include “willfully;” and
5. That there was no error in admitting autopsy and crime scene photos.
(8-1-0: McDonald concurred in result only without separate written opinion; Emfinger did not participate)

NOTE – These convictions stemmed from the kidnapping and murder of six-year-old Kingston Frazier in 2017.

Holmes v. Lankford, 2022-CA-00203-COA (Civil – Contract)
Affirming summary judgment for the defendant in a dispute over a sand and gravel operation agreement, holding that the plaintiff did not have standing to enforce the agreement that was between the defendant and the plaintiff’s administratively dissolved LLC and that the plaintiff did not otherwise show he was entitled to relief.
(10-0)

NOTE – Conducting business through an LLC can cut both ways:

Mason v. State, 2021-KA-00964-COA (Criminal – Felony)
Reversing conviction of child exploitation, holding that the trial court erred in denying funds for an independent computer forensics expert because the State’s witness/detective should have been considered an expert and that this error hindered the defendant’s jurisdictional challenge and led to evidentiary errors that contributed to an unfair trial.
(7-3-0: Wilson, Smith, and Emfinger concurred in part and in the result)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Modified opinion on motion for rehearing affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(9-0)

Other Orders

Hornsby v. Hornsby, 2020-CA-01091-COA (dismissing motion for attorney’s fees)

Blount v. State, 2021-KA-00204-COA (denying rehearing)

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (granting pro se motion for extension of time to file motion for rehearing and recalling mandate)

Easterling v. State, 2022-CA-00796-COA (vacating circuit court’s order and rendering judgment dismissing motion for PCR)

Hunter v. State, 2022-TS-01269-COA (dismissing appeal as untimely)

Hand Down List

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Court of Appeals Decisions of February 7, 2023

The ever-prolific Mississippi Court of Appeals handed down nine opinions today. There is a mix of criminal, domestic, and civil cases with a unifying theme of appellees running the table.

Edwards v. State, 2021-KM-01348-COA (Criminal – Misdemeanor)
Affirming conviction of first-offense DUI, holding that there was probable cause for the traffic stop and that law enforcement was not required to inform the defendant of his right to an independent and alternative BAC test.
(10-0)

Harrison v. Howard, 2021-CA-00697-COA (Civil – Domestic Relations)
Affirming judgment of contempt for failure to comply with agreed order of modification of child custody and support, holding that the father waived improper service, that the agreed modification order was voidable but not void and he failed to timely appeal it, and that he waived the issue of termination of the mother’s child support obligation by not timely objecting or appealing.
(7-3-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion.)

Washington v. State, 2021-KA-01041-COA (Criminal – Felony)
Affirming conviction of capital murder and armed robbery, holding that the trial court’s comments to the jury that this was not a death penalty case was appropriate clarification of fact and did not prejudice the jury, that the defendant did not prove that the State’s loss of a video lineup was not bad faith, that there was no proof that inadmissible portions of video testimony were played to the jury and so it is presumed that the trial court’s order sustaining an objection to the inadmissible testimony was heeded, and that if admitting a handgun into evidence was error it was invited by the defendant who introduced it.
(7-3-0: Wilson, McCarty, and Emfinger concur in part and in the result without separate written opinion.)

Pace v. State, 2022-KA-00046-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court erred in admitting photos without a proper foundation but the error was harmless, that the defendant waived the argument that the State made an improper comment during closing by not objecting, and that the trial court did not err in refusing the defendant’s self-defense instruction.
(7-2-0: Wilson and Greenlee concurred in part and in the result without separate written opinion, Smith did not participate.)

Brandon v. State, 2021-KA-01239-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon upon receipt of a Lindsey brief and a review of the record finding no arguable issues for appeal.
(10-0)

Lofton v. Lofton, 2021-CA-00035-COA (Civil – Real Property)
Affirming judgment in a fraudulent-transfer of real and personal property lawsuit that is tangential to a pending divorce action, holding that the chancery court did not abuse its discretion in determining that the UFTA supported a finding of fraud or in awarding the prevailing party attorney’s fees.
(9-1-0: Westbrooks concurred in the result only.)

NOTE – This is an interesting and fact-bound decision discussing the UFTA.

Mack v. State, 2021-CA-01060-COA (Civil – Other)
Affirming denial of expungement, holding that the trial court did not err in finding that the plaintiff’s conviction was related to his official duties as a police officer.
(10-0)

Clark v. Tippah County Dept. of Child Protection Services, 2021-CP-01209-COA (Civil – Custody)
Affirming judgment terminating parental rights, holding that the mother’s due process claims were procedurally barred and without merit and that the chancellor did not err in terminating parental rights.
(7-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only; Greenlee did not participate.)

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (Civil – Contract)
Affirming chancery court’s judgment that the school district breached 16th section lease terms regarding rent adjustments, holding that the chancery court had subject matter jurisdiction, applied the correct standard of review, did not err in finding no material breach by appellees, did not err in overturning the county board’s ruling, and did not err in denying attorney’s fees to the appellant.
(10-0)

Other Orders

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (denying rehearing)

Belmer v. State, 2021-CP-00398-COA (denying rehearing)

Davis v. State, 2021-KA-00593-COA (denying rehearing)

Howard Industries, Inc. v. Hayes, 2021-WC-00694-COA (denying rehearing)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of January 24, 2023

The Court of Appeals handed down six opinions today. Three criminal cases and three PCR cases. I don’t anticipate any of the PCR cases today drawing the sort of attention the Hathorn case drew last week.

Wells v. State, 2021-KA-00747-COA (Civil – Felony)
Affirming conviction for sale of meth, holding that testimony from a confidential informant about the defendant’s past drug selling activity was elicited by defense counsel on cross and not purposeful elicited by the DA and that it was not error to refuse the defendant’s preferred instruction on weighing confidential informant testimony.
(10-0)

Note – Pithy introductory paragraphs like this could put me out of business:

Thomas v. State, 2021-CP-00060-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the sentence was not illegal, that there was a sufficient factual basis for the kidnapping plea, that the retroactive competency hearing was adequate and proper, and that there was no error in finding the plaintiff competent.
(7-3-0: Judge Wilson, Judge Smith, and Judge Emfinger concurred in part and in the judgment without separate written opinion)

Green v. State, 2021-CP-01299-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the claims were barred by the doctrine of res judicata and the three-year statement of limitations, and the motion was an impermissible successive motion.
(9-0: Judge Lawrence did not participate)

Bradley v. State, 2022-CP-00173-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the motion was both successive and time-barred.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Melendez v. State, 2021-KA-00775-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the evidence was sufficient to support the verdict, dismissing the ineffective assistance claim without prejudice, and holding that the trial court did not abuse its discretion in giving a flight instruction.
(10-0)

Alford v. State, 2022-KA-00025-COA (Criminal – Felony)
Affirming conviction of trafficking meth with intent to distribute and possession of marijuana with intent to distribute, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence.
(5-5-0: Judge Wilson, Judge McDonald, Judge Lawrence, and Judge McCarty concurred in part and in the result; Judge Westbrooks concurred in the result only without separate written opinion.)

Other Orders

Nguyen v. Bui, 2021-CP-00548-COA (granting appellee’s motion for appellate attorney’s fees) (don’t get excited, they were contractual fees)

Wallace v. State, 2021-CP-01149-COA (recalling mandate and accepting pro se motion for rehearing as timely)

Hendrix v. State, 2022-TS-01217-COA (dismissing appeal for want of appealable judgment)

Hand Down List

Mississippi Court of Appeals Decisions of January 10, 2023

The Mississippi Court of Appeals handed down nine opinions today. These decisions cover a wide range of areas including wills, felonies, personal injury, defamation, and adoption. One of the more interesting and potentially useful decisions analyzes the admissibility of images from Google Earth and measurements generated by Google Earth.

Perrigin v. State, 2021-KA-00858-COA (Criminal – Felony)
Affirming conviction of sexual battery of a minor, holding that the verdict was not against the weight of the evidence, that the Confrontation Clause was not violated since the victim did testify at trial, and that the ineffective assistance of counsel claim should be raised on a PCR petition.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion)

Wilkerson v. Wilkerson, 2021-CA-01208-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s ruling in a will contest, holding that the word “should” was permissive and that, in any event, even if there was a mandatory requirement that one son have an opportunity to purchase a property there was sufficient evidence to support the chancellor’s finding that he did have such a chance.
(10-0)

Bolton v. Lee, 2020-CA-00344-COA (Civil – Other)
Affirming a dismissal for failure to state a claim in favor of a banker and a bank and affirming summary judgment in favor of a lawyer and law firm, holding that collateral estoppel barred the plaintiff from recovering in a civil action on the same facts that formed the basis of their criminal convictions of tax evasion and filing false tax returns.
(8-2-0: Judge Wilson and Judge Westbrooks concurred in part and in the result without separate written opinion)

Pope v. Martin, 2021-CA-00367-COA (Civil – Torts)
Affirming in part and reversing in part summary judgment granted in favor of the defendant in a defamation and wiretapping suit, holding that there was no error in granting summary judgment without a hearing or without issuing findings of fact or conclusions of law, and that summary judgment on the defamation claim was proper but that there were genuine fact issues on the wiretapping claim.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion)

NOTE – Summary judgment rulings made without any accompanying findings of fact and conclusions of law to explain the basis for the decision are frustrating for litigants and parties. This is especially true when no hearing was given. There are certainly cases where such rulings make sense, but when the parties have spent considerable time and energy in briefing issues it is helpful to know why you won or lost. Without an explanation of why summary judgment was granted or denied, litigants do not have an opportunity to see where they went wrong and hone their craft. It also does not help the parties focus the issues on appeal. It is clear that Rule 52 does not apply to summary judgments but rules can always be amended.

Evilsizer v. Beau Rivage Resorts, LLC, 2021-CA-01222-COA (Civil – Personal injury)
Affirming summary judgment in favor of the owner of a cooking trailer who was sued by an 18-wheeler driver who struck the awning of the cooking trailer, holding that the there were no genuine fact issues where the evidence showed that the awning was closed approximately one hour before the collision and there was no evidence that the trailer owner opened the awning before the accident or had actual or constructive notice that the awning was open and extending into the roadway.
(8-1-0: Judge McDonald concurred in result only without separate written opinion; Judge Westbrooks did not participate)

Boutwell v. Fairchild, 2021-CA-01046-COA (Civil – Domestic Relations)
Affirming termination of parent rights and allowing adoption, holding that the court had subject matter jurisdiction, that the child was eligible for adoption because the chancery court had properly assumed original and exclusive jurisdiction over the matter, and that the chancellor did not err in finding that parental rights should be terminated.
(8-2-0: Judge McDonald concurred in part and in the result without separate written opinion; Judge McCarty concurred in result only without separate written opinion)

Green v. State, 2021-KA-00613-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the trial court did not err in refusing the defendant’s lesser-included instruction for simple domestic violence because the evidence did not support that instruction.
(10-0)

Taylor v. State, 2021-KA-00721-COA (Criminal – Felony)
Reversing conviction of violating state law by living within 3,000 feet of a playground as a registered sex offender, holding that the sex-offender-registry law is not unconstitutionally vague by what is meant by “playground” or how 3,000 feet should be measured and that the evidence was sufficient to support the conviction, but reversing because the Google Earth map used to calculate the distance was not properly authenticated and contained hearsay.
(6-2-2: Judge Greenlee and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result and dissented in part, joined by Judge Greenlee and joined in part by Judge McDonald and Judge McCarty)

NOTES – The majority and the partial dissent engage in a collegial discussion of whether the term “playground” encompasses the property on which a playground sits or just the playground itself, the dissent arguing for the narrow construction. Both the majority and the partial dissent have interesting analyses of the admissibility of Google Earth images and measurements generated by it (without much disagreement on this issue).

Colburn v. State, 2021-KA-00865-COA (Criminal – Felony)
Affirming conviction for sale of meth within 1,500 feet of a church, holding that the trial court did not err in admitting evidence of the defendant’s prior conviction for possession of cocaine with intent to sell.
(5-1-4: Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald, and joined in part by Judge Lawrence)

Other Orders

None

Hand Down List

Mississippi Supreme Court Decisions of December 15, 2022

The Mississippi Supreme Court handed down two opinions today. One is a criminal case dealing with a Confrontation Clause violation and the other is a judicial estoppel case that reversed the trial court because of an intervening decisions with a special concurrence that garnered a majority of the Court. The Supreme Court also granted cert in a slip-and-fall case that I had not summarized because the decision from the Court of Appeals was handed down back in June on a Thursday instead of Tuesday so it escaped my notice.

Saunders v. NCAA, 2020-CA-01146-SCT (Civil – Torts)
Reversing the trial court’s dismissal of claims based on judicial estoppel, holding that the plaintiff had no duty to disclose claims for declaratory relief during his Chapter 7 bankruptcy and that the dismissal of the money damages claim was in error per an intervening special concurrence that held that judicial estoppel should not be presumed and is, rather, a fact-specific inquiry that must include how the bankruptcy could dealt with the omission.
(7-2: Justice Coleman concurred in part and dissented in part; Justice Griffis concurred in part and dissented in part)

PRACTICE POINT – Regular readers might recall a discussion about the special concurrence referenced in today’s decision. The case is Jones v. Alcorn State University, 337 So. 3d 1062 (Miss. 2022) and Justice Maxwell’s special concurrence in that case was joined by four other justices. I wondered aloud about the precedential effect of a five-justice special concurrence and then later passed along the answer. In Saunders, the Mississippi Supreme Court reversed the trial court based upon the holding of the special concurrence in Jones.

Willis v. State, 2021-KA-00734-SCT (Criminal – Felony)
Affirming conviction of first degree murder, holding that the trial court violated the defendant’s rights under the Confrontation Clause by not allowing cross-examination of the lead investigator about prior inconsistent statements but that the error was harmless, that the trial court did not err in denying the defendant’s self-defense instruction, and that the conviction was supported by sufficient evidence.
(6-3-0: Justice Beam concurred in part and in the result, joined by Chief Justice Randolph and Justice Maxwell)

NOTE – For some reason it jumped out that both Kitchens’s majority opinion and Beam’s concurrence utilized the superior (per Strunk & White) “-s’s” to make Williams’s name possessive.

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing Hon. Mark A. Maples as a member of the Complaint Tribunal)

In Re: Tavares Reed, 2017-M-01391 (denying application for leave to proceed in the trial court, finding it frivolous, and restricting the petitioner from filing further applications in forma pauperis)

Moffett v. State, 2018-DR-00276-SCT (denying rehearing and/or reconsideration)

Thomas v. Boyd Biloxi LLC, 2021-CT-00265-SCT (granting cert)
NOTE – I did not recall this case from June. I looked back and realized it escaped my notice because it was an an off-cycle hand-down from the Court of Appeals on Thursday, June 2. The plaintiff slipped and fell on a pool deck after exiting a hot tub. A 5-1-4 Court of Appeals affirmed summary judgment dismissing the case, holding that the evidence did not satisfy the standard to defeat summary judgment and that the trial court did not err in denying part of the plaintiff’s 56(f) request.

Hand Down List

Mississippi Court of Appeals Decisions of December 13, 2022

The Mississippi Court of Appeals handed down eight opinions today. There are several interesting criminal cases and a couple of PCR cases. But the two opinions that strike me as the most significant are a med mal case and a wills and estates case. The med mal decision reversed summary judgment for the hospital, holding that the layman’s exception to the usual expert witness requirement applied. The wills case addressed the effect of a decedent’s handwritten note forgiving a promissory note upon his death by “accident or sickness” after he died by suicide.

Barfield v. State, 2021-KA-00660-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder and denial of post-trial motions, holding that the evidence that the defendant was included in conversations leading up to the effort to conceal the victim’s body and was present (but did not physically participate) during those efforts was sufficient; that the trial court did not err in giving instructions on aiding and abetting, accomplice testimony, or the definitions of “conceal” and “participate,” or in refusing an instruction that the defendant had no duty to disclose the location of the body to the police; that the trial court did not err by allowing certain rebuttal testimony; that the trial court did not commit plain error in allowing testimony by State’s witnesses that they pleaded guilty to manslaughter and accessory after the fact.
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Smith v. State, 2021-KA-01104-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court erred in excluding the entirety of the defendant’s firearms expert’s testimony but that this error was harmless and that the verdict was not contrary to the weight of the evidence.
(8-2-0: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion)

Holliday Construction, LLC v. George County, Mississippi, 2021-CA-00667-COA (Civil – Contract)
Affirming trial court’s decision stemming from the County’s award of contract for hurricane debris cleanup to an out-of-state company, holding that the County’s award was illegal but not arbitrary and capricious; that the trial court had authority to allow the County to reject all bids, re-advertise, and allow re-bids for the work; and that the trial court did not err in denying the plaintiff’s compensatory damages claim since the plaintiff failed to show it was entitled to the original award of the contract.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Carlton concurred in part and dissented in part without separate written opinion)

Hornsby v. Hornsby, 2020-CA-01091-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions related to child support, holding that the chancellor did not abuse his discretion in denying the father’s request for reduction in child support, did not err in finding that the mother was not in contempt, and did not err in awarding the mother attorney’s fees.
(7-0: Judge Carlton, Judge Lawrence, and Judge Smith did not participate)

Siggers v. State, 2021-CP-01180-COA (Civil – PCR)
Reversing denial of PCR motion for lack of jurisdiction, holding that the plaintiff did not need to obtain permission from the Mississippi Supreme Court to file his PCR motion.
(10-0)

Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s dismissal of two complaints for collection on two promissory notes, holding that the chancellor did not abuse his discretion in finding that a handwritten note from the decedent stating that a $700,000 promissory note would be forgiven if he died by “accident or sickness” was a holographic codicil to his will or in ruling that his death by suicide was death by “sickness” because it was causally related to debilitating medical issues surrounding his prostate cancer.
(10-0)

Clark v. Vicksburg Healthcare, LLC, 2021-CA-00173-COA (Civil – Medical Malpractice)
Affirming in part and reversing in part the circuit court’s grant of summary judgment in favor of a hospital in a med mal case, holding that the layman’s exception to the typical expert requirement applied in this case where a nurse allowed a 10-day-old baby to fall to the floor and reversing the dismissal of that aspect of the suit, but affirming denial of the other med mal claims for lack of expert testimony.
(Judge Greenlee concurred in part (application of the layman’s exception) and dissented in part (he would have remanded with ruling on the remaining claims) joined by Chief Judge Barnes, Judge Westbrooks, Judge McDonald, and Judge Lawrence)

Practice Point – The Court of Appeals noted that the layman’s exception had not previously been extended to “falls” cases, but distinguished this case from other “falls” cases involving post-op or elderly patients.

Colenberg v. State, 2021-CA-00673-COA (Civil – PCR)
Affirming denial of motion for post-conviction collateral relief, holding that the circuit court did not err in ruling that the plaintiff failed to establish by a preponderance of the evidence that there was not sufficient factual basis for his guilty plea.
(5-4: Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge McCarty, Judge Emfinger; Judge McDonald did not participate)

Other Orders

Gardner v. Jackson, 2020-CA-01313-COA (denying rehearing)

Johnson v. State, 2021-KA-00571-COA (denying rehearing)

Phillips v. City of Oxford, 2021-CA-00639-COA (denying rehearing)

Guinn v. Claiborne, 2021-CP-00997-COA (denying rehearing)

Jones v. State, 2021-CP-01088-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (granting pro se appellant’s pro se motion to recall mandate)

Ross v. State, 2022-TS-00901-COA (denying appellant’s pro se motion to show cause and dismissing untimely appeal)

Hand Down List

Mississippi Court of Appeals Decisions of December 6, 2022

The Mississippi Court of Appeals wore me out with nine opinions today. There is something for just about everybody below including crimes, conservatorships, and contracts. One case includes a nightmare scenario where an order of dismissal was entered and the plaintiff’s attorney did not receive notice of it until well after the appeal deadline passed, and there is a special concurrence shining a beacon of hope for litigants who find themselves in this situation.

McLendon v. State, 2022-CP-00057-COA (Civil – PCR)
Affirming summary denial of a motion for post-conviction collateral relief, holding that a proper factual basis was shown as to each element of the offense during the guilty plea.
(10-0)

Davis v. State, 2021-KA-00759-COA (Criminal – Felony)
Affirming convictions of armed robbery and kidnapping, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial based on inadmissible testimony from the police chief that the defendant had been previously incarcerated for burglary.
(7-3-0: Judge McDonald specially concurred, joined by Chief Judge Barnes, Judge Greenlee, and Judge Westbrooks; Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in the result only without separate written opinion.

N0te – Here is how the trial court handled the inadmissible testimony:

Owens v. State, 2021-KA-00887-COA (Criminal – Felony)
Affirming conviction of burglary of a business, holding that the conviction was not against the weight of the evidence .
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Note – The dissent argued that the conviction was against the weight of the evidence and discussed the evidence that was presented. The dissent embedded into the opinion stills from surveillance videos that were shown to the jury was extremely helpful in understanding the evidence that was presented and that was being discussed.

State v. Hudson, 2021-KA-01232-COA (Criminal – Felony)
Dismissing the State’s appeal of a directed verdict of acquittal, holding that the appeal was not authorized by section 99-35-103(b) because the issues on appeal did not present the Court with a pure question of law.
(10-0)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (Civil – Contract)
Reversing summary judgment in favor of the defendants on a breach of contract and fraud complaint related to fees the defendant allegedly owed the plaintiff for recruitment services, holding that there was a fact dispute over the existence of a contract.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Atkins v. Moore, 2021-CA-00780-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s final judgment approving a conservator’s final accounting, holding that the conservator had not misspent or converted funds and that the plaintiff was not otherwise entitled to relief.
(9-1-0: Judge Westbrooks specially concurred, joined by Judge McDonald and joined in part by Judge McCarty)

Note – The Court of Appeals took issue with several aspects of the proceedings below, but found none warranted reversal. Here is the Court’s conclusion:

Another Note – This opinion cites a post by Jane Stroble Miller from Judge Larry Primeaux’s The Better Chancery Court Practice Blog, noting that it “provides a very helpful discussion on the need for ‘vouchers’ to support and accounting.” I fail to see a downside in favorably citing law blogs in judicial opinions.

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (Civil – Contract)
Dismissing the appeal in part and affirming in part, holding that the Court did not have jurisdiction to review the order granting the motion to dismiss where it was not timely filed because counsel did not receive notice of the judgment and dismissing that part of the appeal and affirming the denial of the plaintiff’s motion to reconsider.
(8-2-0: Judge McCarty specially concurred, joined by Judge Greenlee, Judge Westbrooks, Judge McDonald, Judge Lawrence, and Judge Smith; Judge Emfinger concurred in the result only without separate written opinion)

Practice Point – Judge McCarty’s special concurrence highlights a lifeline to litigants in the unfortunate situation of not receiving notice of an appealable judgment until after the deadline to file a notice of appeal:

Note – It is a credit to the appellee and appellee’s counsel for not arguing untimeliness under these circumstances at any point in the process.

DeSoto County v. Vinson, 2021-CC-00864-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of the DeSoto County Board of Supervisors’ approval of a landowner’s application to subdivide a residential lot, holding that the landowner’s failure to accompany the application with names of persons adversely affected or directly interested and their signatures approving the division violated section 17-1-23(4).
(8-1-1: Judge Emfinger concurred in the result only without separate written; Judge Wilson dissented)

Burchett v. State, 2021-KA-00776-COA (Criminal – Felony)
Affirming conviction of murder, holding that there was no evidence to supporting a lesser-included instruction on heat of passion manslaughter.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in part and dissented in part, joined in part by Judge McDonald)

Other Orders

Young v. Freese & Goss, PLLC, 2020-CA-01280-COA (denying rehearing)

Simpson County School District v. Wigley, 2021-CA-00009-COA (denying rehearing)

Boyd v. State, 2021-KA-00066 (denying rehearing)

Nguyen v. Bui, 2021-CP-00538-COA (denying rehearing)

McGilberry v. Ross, 2021-CP-01076 (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of November 1, 2022

The Mississippi Court of Appeals kicked off November with eight opinions. There are two domestic cases dealing with custody and divorce, a personal injury case adjacent to a workers’ comp claim with a statute of limitation issue, two reversals in administrative cases (MDES and MDHS), two PCR cases, and one criminal case.

Jarvis v. State, 2021-CP-00930-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the plaintiff’s guilty plea waived his defective-indictment claim based on alleged insufficiency in the State’s evidence and that his ineffective assistance claim lacked merit.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion.)

Blagodirova v. Schrock, 2020-CA-01162-COA (Civil – Custody)
Affirming in part and reversing in part a chancellor’s child-custody modification order, holding that the chancery court manifestly erred by finding an adverse effect on the child, did not err in denying attorney’s fees, and did not abuse its discretion in denying a motion to compel completion of a financial disclosure statement.
(4-2-4: Judge Emfinger concurred in part and in the result without separate written opinion; Judge McCarty concurred in the result only without separate written opinion; Judge Carlton concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Greenlee, and Judge Smith.)

Baughman v. Baughman, 2021-CA-00074-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on an appeal and cross-appeal from a divorce proceeding, affirming denial of the ex-husband’s claim for separate maintenance, affirming the denial of divorce on the grounds of adultery, and reversing the denial of divorce on the ground of habitual cruel and inhuman treatment.
(5-4-0: Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson, Judge Greenlee, and Judge Lawrence concurred in the result only without separate written opinion; and Judge Carlton did not participate.)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (Civil – Personal Injury)
Affirming dismissal of certain claims as barred by the statute of limitations, holding that the plaintiff’s claims against a third-party (not the Employer, Carrier, or TPA) arising from the utilization review process in the course of his treatment for a workers’ comp injury were barred by the three-year statute of limitations.
(9-0: Judge Emfinger did not participate.)

NOTE – A critical aspect of this decision was that the lawsuit did not arise from the denial of workers’ comp benefits:

Bowman v. State, 2020-KA-01371-COA (Criminal – Felony)
Affirming conviction of second-degree murder and tampering with evidence, holding that the trial court did not err in allowing the state medical examiner to testify about the cause and manner of death, in denying motions to suppress evidence seized at the defendant’s Mississippi property and in his vehicle in Utah, in denying a flight-evidence motion in limine and giving a flight-evidence jury instruction, or in refusing the defendant’s request for additional circumstantial evidence instructions, and that the convictions were not against the overwhelming weight of the evidence and were based on sufficient evidence.
(7-2-0: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Smith did not participate.)

MDHS v. Reaves, 2021-SA-01133-COA (Civil – State Boards and Agencies)
Reversing the chancery court’s order directing MDHS to reimburse the plaintiff for past child-support payments, holding that reimbursement was improper because a noncustodial parent cannot recover the child-support payments he made on behalf of his child.
(7-3: Judge McDonald concurred in part and in the result without separate written opinion; Judge Wilson and Judge Westbrooks concurred in result only without separate written opinion.)

Wallace v. State, 2021-CP-01149-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second PCR petition, holding that the court did not err when it was not persuaded that the guilty plea lacked a factual basis and was involuntary, that the indictment was defective, or that counsel was ineffective.
(9-1-0: Judge Wilson concurred in the result only without separate written opinion.)

Vector Transportation Co. v. MDES, 2021-CC-00576-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s judgment affirming the MDES Board of Review’s determination that an employee was entitled to unemployment benefits, holding that the employer met its burden of proof to show that the employee’s termination was for misconduct.
(6-3: Judge McDonald concurred in part and dissented in part; Judge Westbrooks dissented, joined by Judge Wilson and joined in part by Judge McDonald; Chief Judge Barnes did not participate.)

Other Orders

Simpson v. State, 2021-KA-00075-COA (denying rehearing)

Terpening v. F.L. Crane & Sons, Inc., 2021-CA-00544-COA (denying rehearing)

Hand Down List