Tag: Legal Malpractice

Mississippi Court of Appeals Decisions of September 13, 2022

The Mississippi Court of Appeals handed down five opinions today. These cases include two criminal convictions, medical malpractice, legal malpractice, and civil asset forfeiture.

Rowell v. State, 2021-KA-00793-COA (Criminal – Felony)
Affirming conviction of felony eluding after a high-speed chase, holding that the trial court did not err by refusing to instruct the jury on a lesser-included offense of failure to stop because no rational juror could have found the defendant not guilty of felony eluding but guilty of the lesser-included offense, that that the conviction was supported by sufficient evidence was not against the overwhelming weight of the evidence, and that the argument that testimony from revocation hearing should not have been admitted was procedurally barred.
(9-1-0: Judge Westbrooks concurred in result only without separate written opinion)

NOTE – I love it when an opinion comes right out with a roadmap like this one:

Having that lens through which to read the rest of the opinion saves the reader from spending a few pages feeling like he or she is trying to solve a mystery. I think this applies to brief writing as well and I do not always do this well.

Gardner v. Jackson, 2020-CA-01313-COA (Civil – Medical Malpractice)
Affirming a directed verdict in favor of a doctor in a medical malpractice case, holding that the circuit court did not err in granting the directed verdict based on the plaintiff’s failure to properly establish the national standard of care through expert testimony.
(9-0: Judge Emfinger did not participate)

Sims v. State, 2021-KA-00682-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming evidence and holding that the circuit court did not err in admitting an autopsy photo because there was probative value in showing the cause of death.
(10-0)

McGilberry v. Ross, 2021-CP-01076-COA (Civil – Legal Malpractice)
Affirming summary judgment dismissing a legal malpractice suit, holding that the plaintiff failed to produce any proof that the defendant breached the standard of care or her duty of loyalty and holding that the pro se appellant failed to cite authority or credible evidence to support her remaining claims.
(9-1-0: Judge Wilson concurred in result only without separate written opinion)

$153,340.00 v. State, 2020-CA-01409-COA (Civil – Other)
Affirming judgement of civil asset forfeiture, holding that the evidence supported forfeiture because the respondent provided no evidence that the money belonged to him other than his own testimony which lacked credibility, that the forfeiture was not an “excessive fine,” and that the evidence that the respondent met a drug-courier profile was sufficient to support the forfeiture.
(5-2-2: Judge McCarty concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge McDonald dissented without separate written opinion; Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Emfinger did not participate.)

Other Orders

Prowell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 23, 2022

The Mississippi Court of Appeals handed down five opinions today. There is an arbitration enforcement decision, a legal malpractice settlement enforcement decision, an appeal of a second-degree murder conviction, a wrongful termination decision, and a PCR decision.

Chandler v. State, 2020-CP-01060-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that most of the claims were procedurally barred and all of them were without merit.
(10-0)

Young v. Freese & Goss PLLC, 2020-CA-01280-COA (Civil – Contract)
Affirming the court court’s order granting in part a motion to compel arbitration, holding (1) that the circuit court did not err in granting arbitration to those plaintiffs whose attorney contracts had an arbitration provision, holding that the defendants did not waive arbitration under the peculiar facts of this case even though the motion to compel arbitration was not heard for more than five years, (2) that the plaintiffs had not specifically and clearly alleged fraudulent inducement, (3) that it was not error to compel arbitration over the plaintiffs’ argument that the attorneys breached their fiduciary duty and that the arbitration provision was procedurally and substantively unconscionable, and (4) that it was not error to apply the arbitration provision to conduct that occurred before it was executed.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty did not participate.)

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (Civil – Legal Malpractice)
Affirming the circuit court’s order enforcing a settlement release signed by a former client agreeing to release malpractice claims against a law firm for $300,000 and ordering the law firm to pay the $288,000 balance, holding that the settlement release was not barred by the statute of frauds, that the amount bargained was not unreasonable, that facts deemed admitted to requests for admissions that were not answered were conclusively established, that the law firm waived its defenses to the legal malpractice claim by negotiating a release, and that there was no requirement to file a suggestion of death.
(8-1-1: Judge Emfinger concurred in part and in result without separate written opinion; Judge McDonald dissented without separate written opinion.)

NOTE – These facts are wild and the opinion is worth you time. A non-lawyer employee lied to the plaintiff about filing suit and a trial date and the plaintiff only found out eight years later. The plaintiff negotiated with the same non-lawyer employee and received $18,000 and later a promise for $288,000 more, but the law firm did not sent a release. Litigation ensued over the agreement. Sadly, the plaintiff died of cancer during the litigation and did not get to see things made right.

Moffett v. State, 2021-KA-00622-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that (1) the defendant did not prove ineffective assistance of counsel related to the failure to request a culpable-negligence instruction, failure to request an accident or misfortune instruction, or for admitting that there was no evidentiary basis for a heat-of-passion manslaughter jury instruction; (2) the trial court did not err in denying the defendant’s motion to suppress her statement on coercion grounds; and (3) the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence.
(8-1-1: Judge Westbrooks concurred in part and in the result without separate written opinion; Judge McDonald concurred in part and dissented in part without separate written opinion.)

Avery v. The University of Mississippi, 2021-CA-00471-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s decision affirming the University Personnel Action Review Board’s (PARB) decision upholding the plaintiff’s termination, holding that (1) the circuit court had jurisdiction; (2) the plaintiff was afforded due process despite her arguments that she was not given proper notice, not provided with adequate reasons for her termination prior to her hearing, not given the PARB’s findings of fact, and the investigation was inadequate; (3) the termination did not violate the First Amendment; and (4) the termination was supported by substantial evidence including evidence of disrespectful and confrontational behavior towards coworkers.
(8-2-0: Judge Wilson concurred in part and in the result without separate written opinion; Judge McDonald concurred in result only without separate written opinion.)

Other Orders

Murray v. State, 2021-KA-00264-COA (denying rehearing)

Keys v. Military Department Gulfport, 2021-WC-00352-COA (denying rehearing)

Pipkin v. State, 2021-CA-00517-COA (denying rehearing)

Unifund CCR Partners v. Estate of Jordan, 2021-CA-00761-COA (denying rehearing)

Siggers v. State, 2021-CP-00985-COA (recalling mandate so appellant’s pro se motion for rehearing can proceed on the merits)

Hand Down List

Mississippi Supreme Court Decisions of June 16, 2022

The Mississippi Supreme Court took advantage of a slow inning from the Mississippi Court of Appeals and plated five opinions today to answer the COA’s two. These are big cases. There is an inverse condemnation decision, a legal malpractice decision stemming from a workers’ comp claim, a decision on whether Eight Amendment was violated by a life sentence without the possibility of parole for possession of marijuana by a habitual offender, and a case deciding whether Mississippi courts have subject-matter jurisdiction to hear claims stemming from the termination of a former employee of the Catholic Diocese of Jackson in light of the ecclesiastical abstention doctrine of the First Amendment.

City of Gulfport, Mississippi v. Cowan Road & Highway 90, LLC, 2020-CA-01286-SCT (Real Property)
Affirming on direct appeal and affirming in part/reversing in part on cross-appeal of an inverse condemnation ruling, holding that (1) the landowners were entitled to reasonable fees and costs because they fell within the purview of section 43-37-9, (2) the trial court did not abuse its discretion in awarding attorney’s fees or in reducing the attorney’s hourly rate, (3) the trial court did not abuse its discretion by not awarding prejudgement interest under section 75-17-7, and (4) the circuit court did abuse its discretion by not awarding post judgment interest.
(7-0: Chief Justice Randolph and Justice Beam did not participate.)

Lairy v. Chandler, 2019-CT-01423-SCT (Civil – Legal Malpractice)
Affirming in part and reversing in part the judgment of the Court of Appeals in a legal malpractice claim stemming from a workers’ compensation, holding that the trial court’s award for damages was sufficiently supported by the evidence and that while the plaintiff had to “pass the trial-within-a-trial test” she did not have to satisfy the “exacting statutory requirements” of the Mississippi Workers’ Compensation Act that would have applied to her workers’ compensation claim to pass that test.
(7-2: Justice Coleman dissented, joined by Justice King.)

Russell v. State, 2019-CT-01670-SCT (Criminal – Felony)
Affirming a life sentence without the possibility of parole for possession of marijuana as a habitual offender, holding that “the trial judge followed the letter of the law” and did not have sentencing discretion and that the defendant presented no evidence related to the Solem factors for an Eighth Amendment analysis.
(5-1-3: Chief Justice Randolph specially concurred with separate written opinion, joined by Justice Beam and Justice Ishee, but the Chief did not join the majority opinion. Justice Coleman dissented, joined by Justice Kitchens and Justice King.)

NOTE – This is a heavy case in terms of public policy, legal analysis, and outcome. The Court of Appeals below split 5-5. Judge Wilson wrote the main dissent, joined by Judge Westbrooks, Just McDonald, Judge Lawrence, and Judge McCarty. The grouping of judges and justices in majority and dissent is interesting as well.

Eubanks v. State, 2020-KM-00110-SCT (Criminal – Misdemeanor)
Affirming conviction of simple assault domestic violence, holding that there was no violation of the defendant’s constitutional right to speedy trial or statutory right to speedy trial, that an objection to testimony was waived because it was not asserted at trial, that the defendant did not receive ineffective assistance of counsel, that there was no error in denying his motion for judgment of acquittal notwithstanding the verdict, that the jury’s finding that the victim suffered bodily harm was not against the overwhelming weight of the evidence, that the State did not violate the defendant’s due process rights by failing to investigate and preserve exculpatory evidence, and that the trial court did not err by giving the State’s simple assault domestic violence jury instruction.
(5-4: Justice Coleman, with his white-hot dissenting pen, wrote a dissent that was joined by Justice Kitchens, Justice King, and Justice Ishee.)

Catholic Diocese of Jackson, Mississippi v. De Lange, 2021-IA-00159-SCT (Civil – Torts)
Reversing and rendering the circuit court’s denial of the defendant’s motion to dismiss claims stemming from the termination of the plaintiff, holding that the court lacked subject-matter jurisdiction under the ecclesiastical abstention doctrine of the First Amendment to the U.S. Constitution to hear the plaintiff’s claims of wrongful termination, defamation, and negligent and intentional infliction of emotional distress.
(9-0)

NOTE – I watched the oral arguments in this case and found it fascinating. It was argued well by both sides, and the bench was thoughtful and fully engaged.

Other Order

Knox v. State, 2014-DR-00849-SCT (denying rehearing)

Hand Down List

My summaries are late because I spent much of the day lawyering in Smith County this morning.