Tag: Lack of Prosecution

Mississippi Court of Appeals Decisions of June 11, 2024

The Mississippi Court of Appeals handed down nine opinions today. There are four divorce-related decisions, two direct criminal appeals, a tort case dismissed for failure to state a claim, a negligence case dismissed for want of prosecution, and a PCR case.

Roley v. Roley, 2022-CP-01104-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings in a divorce action, holding that that the chancellor did not err in denying appellant’s Rule 60 motion that was filed after the mandate from the appeal of the case had been entered because the mandate rule barred reconsideration and that the chancellor did not err in finding the appellant in contempt or in incarcerating him for it.
(8-1-0: Westbrooks concurred in result only without separate written opinion; Lawrence did not participate)

Clark v. State, 2023-KA-00011-COA (Criminal – Felony)
Affirming conviction of simple possession of a controlled substance, holding that after reviewing counsel’s Lindsey brief, appellant’s pro se brief, and the record that there was sufficient evidence to support the conviction and that there were no other issues to warrant reversal.
(10-0)

Scott v. State, 2022-KA-00830-COA (Criminal – Felony)
Affirming convictions of touching a child for lustful purposes, nine counts of sexual battery, and one count of exploitation of a child, holding that the trial court did not err in denying the defendant’s motion for change of venue because the motion to change venue was procedurally defective and lacked merit.
(9-0)

Ware v. Ware, 2023-CA-00605-COA (Civil – Domestic Relations)
Affirming the chancellor’s rulings in a divorce action, holding that the chancellor did not abuse his discretion finding that the martial home was a marital asset, in distributing the marital home equally between the parties, or in not making specific findings of fact and conclusions of law as to each Ferguson factor.
(10-0)

Hasley v. Hasley, 2023-CA-00914-COA (Civil – Domestic Relations)
Reversing the chancellor’s ruling that temporary orders of separate maintenance had been converted to a final order of support, holding that the order being appealed was entered while the case was previously on appeal and that the issue sub judice was encompassed in the Court of Appeals’ prior ruling and remanding for further proceedings.
(8-2-0: Barnes and Wilson concurred in part and in the result without writing)

Archer v. Harlow’s Casino Resort & Spa, 2022-CP-01060-COA (Civil – Torts)
Affirming the circuit court’s denial of the pro se plaintiff’s motion to amend her complaint after the initial complaint was dismissed for failure to state a claim and failure to plead fraud with particularity, holding that the proposed amended complaint failed to state a claim for relief.
(10-0)

Pace v. Pace, 2022-CA-01259-COA (Civil – Domestic Relations)
Affirming in part and vacating in part the chancellor’s rulings in a divorce matter related to the sale of a jointly owned commercial building, holding that the chancellor lacked jurisdiction to grant one party’s contempt motion but affirming the chancellor’s decision ordering that party to buy the other party’s interest in the property and denial of the Rule 59 motion.
(10-0)

Jiles v. State, 2023-CP-00383-COA (Civil – PCR)
Affirming the dismissal of several PCR motions, holding that they were time-barred and successive and that and no exceptions applied, and that the remaining arguments were waived because he pleaded or because he did not raise them in the circuit court.
(10-0)

Ware v. Brown, 2023-CA-00663-COA (Civil – Personal Injury)
Affirming dismissal of a negligence action for want of prosecution, holding that there was a clear record of delay including two granted motions to compel and a two-year effort to obtain one plaintiff’s relevant medical history, that the circuit court did not abuse its discretion by dismissing the complaint with prejudice in lieu of lesser sanctions.
(5-1(2?)-3(2?): Wilson and Smith concurred in part and in the result without separate written opinion; McDonald concurred in part and dissented in part; joined by McCarty and Smith; Westbrooks did not participate.)

Other Orders

  • Patrick v. Patrick, 2021-CA-00891-COA (denying rehearing)
  • Okorie v. Nat’l Ass’n Wells Fargo Bank, 2022-CP-00043-COA (denying pro se motion for reconsideration)
  • Marshall v. State, 2022-KA-00541-COA (denying rehearing)
  • Roley v. Roley, 2022-CP-01104-COA (denying motions for reconsideration and for recusal of four judges of the Court of Appeals)
  • Hartzog v. State, 2024-TS-00033-COA (denying pro se “motion to show cause” and dismissing appeal)

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Mississippi Court of Appeals Decisions of May 21, 2024

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)

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Mississippi Court of Appeals Decisions of November 21, 2023

The Mississippi Court of Appeals handed down eight opinions on Tuesday. There are some interesting opinions in there including three opinions with civil procedure issues that civil litigators should take a look at. One deals with the discovery rule and the savings statute after a voluntary dismissal, another deals with a Rule 41 dismissal for want of prosecution, and the other deals with a Rule 56(f) motion in a med mal case.

The Supreme Court will not hand down decisions this week due to the Thanksgiving holiday. Have a Happy Thanksgiving!

Burns v. BancorpSouth Bank, 2022-CA-00404-COA (Civil – Contract)
Affirming dismissal of breach of contract and negligence claims that two banks were liable for not preventing an elderly lady’s caregiver from stealing money from bank accounts, holding that the claims against the banks were barred by the three-year statute of limitations.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Greenlee did not participate)

Harper v. State, 2022-KA-00659-COA (Criminal – Felony)
Affirming conviction of attempted statutory rape and fondling, holding that the trial court did not err by admitting the victim’s out-of-court statements without determining whether the tender-years exception applied because the victim’s teacher’s testimony about what the victim said was not offered to prove the truth of the matter asserted and that the forensic interviewing expert’s testimony did not constitute hearsay, and dismissing the ineffective assistance of counsel claims without prejudice.
(8-2-0: Enfinger concurred in part and in the result without writing and McDonald concurred in the result only without writing)

Agee v. State, 2022-KA-00994-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the Court did not err by imposing restitution and that the defendant waived that issue by not objecting during sentencing.
(9-1-0: Westbrooks concurred in the result only without writing)

Clearman v. Pipestone Property Services, LLC, 2022-CA-00651-COA (Civil – Personal injury)
Affirming the circuit court’s dismissal of slip-and-fall claims against a contractor and subcontractor who provided snow and ice removal services for a grocery store on statute of limitations grounds, holding that the “discovery rule” did not apply, the voluntary dismissal of a timely federal court lawsuit against the grocery store did not bring the claims against the contractor and subcontractor within the ambit of the “savings statute,” and the doctrine of equitable tolling did not apply.
(10-0)

Galvan v. State, 2022-KA-00655-COA (Criminal – Felony)
Affirming conviction of statutory rape, sexual battery, gratification of lust, and incest, holding that the trial court did not err by not appointing an interpreter or by admitting the defendant’s statements to law enforcement, that the defendant waived objections based on the Confrontation Clause, that there was sufficient evidence to support the incest conviction, and that the defendant failed to prove ineffective assistance of counsel.
(9-1-0: Carlton concurred in result only without writing)

Rawlings v. Rawlings, 2022-CA-00919-COA (Civil – Domestic Relations)
Affirming the chancellor’s denial of the ex-wife’s request for attorney’s fees after denying the ex-husband’s request for alimony modification, holding that she was not entitled to attorney’s fees under the marital dissolution agreement providing that the prevailing party in an enforcement action was entitled to attorney’s fees because this was an action to “modify” the agreement not “enforce” it.
(10-0)

Scott v. UnitedHealthcare of Mississippi, Inc., 2022-CA-00963-COA (Civil – Insurance)
Affirming dismissal for want of prosecution where an 18-month period of inactivity followed the filing of the compliant, interrupted only by some activity prompted by the circuit clerk’s notice of intent to dismiss under Rule 41, that then followed by another 18-month period of inactivity and a second Rule 41 notice, holding that the trial court did not abuse its discretion in dismissing the case even though the plaintiff filed a “Motion to Leave Case on the Docket” after the second Rule 41 notice and that the Court otherwise had inherent power to dismiss for want of prosecution.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

NOTE – The Court was not persuaded by the plaintiff’s efforts to assign blame to the COVID pandemic. The plaintiff argued:

The Court addressed this argument later in the opinion:

Hogan v. Hattiesburg Clinic, P.A., 2022-CA-00650-COA (Civil – Medical Malpractice)
Affirming the circuit court’s denial of the plaintiffs’ 56(f) motion filed the day before the motion for summary judgment hearing, holding that the plaintiffs’ 56(f) motion did not mention the need to obtain additional expert medical opinions and the plaintiffs had not otherwise shown that additional expert opinion could establish proximate cause.
(8-1-0: McCarty concurred in part and in the result without separate written opinion; Carlton did not participate.)

Other Orders

Love v. State, 2021-CP-01101-COA (denying rehearing)

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