Tag: med mal

Mississippi Court of Appeals Decisions of November 25, 2025

The Mississippi Court of Appeals served a seasonally-appropriate portion of twelve opinions on Tuesday with nine other orders on the side. You can read about the lot below.

Cummings v. State, 2024-KA-00909-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the conviction was supported by sufficient evidence, the verdict was not against the overwhelming weight of the evidence, the trial court did not abuse its discretion in the jury instructions given, the trial court did did not abuse its discretion in allowing evidence of other bad acts, the ineffective-assistance-of-counsel claim was without merit, and that the cumulative error doctrine did not apply.
(7-3: Weddle for the Court; Wilson dissented, joined by Westbrooks and McDonald)

In the Interest of K.B.: A.B.B. v. E.B.S., 2024-CA-00313-COA (Civil – Custody)
Affirming the youth court’s decision terminating parental rights, holding that the natural mother exercised all of the rights that she complained on appeal that the trial court failed to give her including her right to court-appointed counsel.
(8-2-0: Emfinger for the Court; Westbrooks and McCarty concurred in part and in the result without writing)

Bivins v. Ellisville State School, 2024-SA-01098-COA (Civil – State Boards & Agencies)
Affirming the circuit court’s decision affirming the Mississippi Employee Appeals Board’s decision affirming an employee’s termination, holding that the former employee failed to show that the order was not supported by substantial evidence or was arbitrary and capricious.
(10-0: McCarty for the Court)

Dortch v. State, 2024-KA-01102-COA (Criminal – Felony)
Affirming conviction of capital murder while engaged in the commission of a robbery after reviewing counsel’s Lindsey brief and independently reviewing the record.
(10-0: McCarty for the Court)

Latham v. State, 2024-KA-00719-COA (Criminal – Felony)
Affirming conviction of sexual battery after reviewing counsel’s Lindsey brief and independently reviewing the record.
(10-0: Lawrence for the Court)

Day v. Day, 2024-CA-00771-COA (Civil – Custody)
Affirming the chancery court’s custody modification order, holding that there was evidence to support the chancellor’s finding of a material change in circumstances and awarding the mother custody and visitation rights for the father.
(9-0: Lawrence for the Court; Weddle did not participate)

Higdon v. Pinkston, 2023-CP-00685-COA (Civil – Real Property)
Affirming the chancellor’s grant of summary judgment in a property-line dispute, holding that the chancellor’s decision where the motion for summary judgment was not opposed by a response or evidence at the hearing.
(10-0: Carlton for the Court)

McLaurin v. State, 2024-KA-00138-COA (Criminal – Felony)
Affirming conviction of possession of meth but reversing sentence as a nonviolent habitual offender, holding that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming weight of the evidence, that there was no plain error in admission of hearsay testimony from an officer, that the ineffective-assistance-of-counsel claim lacked merit, that the trial court properly excluded proposed hearsay testimony, that the trial court did not err in qualifying the jury venire in the defendant’s absence, that the spousal privilege did not apply to certain testimony, and that matters not raised in the trial court were procedurally barred, but holding that the trial court erred in finding that it lacked sentencing discretion.
(6-4-0: Carlton for the Court; Wilson, McDonald, Emfinger, and Weddle concurred in part and in the result without writing)

Bodie v. State, 2024-KA-00634-COA (Criminal – Felony)
Affirming conviction of two counts of sexual battery and one count of touching a child for lustful purposes, holding that the defendant’s rights under the Double Jeopardy Clause were not violated.
(10-0: Carlton for the Court)

CNRS&Z Inc. v. Bridgecrest Acceptance Corporation, 2024-CA-00365-COA (Civil – Contracts)
Affirming the trial court’s decision granting a motion to compel arbitration, holding that the trial court did not err in finding a valid and binding arbitration agreement with one of the defendants and that the “close legal relationship” between that defendant and two others allowed them to enforce the arbitration agreement as well.
(5-5: Barnes for the Court; McCarty concurred in part and dissented in part, joined by Westbrooks, McDonald, Lawrence, and Lassitter St. Pe’)

Note – The dissent agreed that the claims against the defendant who signed the arbitration agreement were bound to arbitration, but took issue with binding the claims against the other two defendants:

Estate of Price v. St. Dominic-Jackson Memorial Hospital, 2024-CA-00582-COA (Civil – Med Mal)
Affirming the circuit court’s dismissal of a med mal action finding that it was barred by the statute of limitations and that it was an impermissible duplicative action, holding that the plaintiff waived any challenge to the dismissal as an impermissible duplicative action by failing to address it on appeal and that it was therefore unnecessary for the Court to address the statute of limitations issue.
(6-2-0: Wilson for the Court; McDonald concurred in result only without writing; Lassitter St. Pe’ specially concurred, joined by Westbrooks; Barnes and Weddle did not participate.)

Avery v. State, 2024-CP-01044-COA (Civil – PCR)
Reversing summary dismissal of a PCR motion, holding that the motion was sufficient to survive summary dismissal and required the State to answer to motion and provide an explanation for its calculate of the parole eligibility date.
(8-2: Wilson for the Court; Lawrence dissented, joined by Weddle)

Other Orders

  • In the Interest of J.S.: P.S. v. Pearl River County Dept. of CPS, 2023-CA-00932-COA (denying rehearing)
  • Swims v. State, 2023-KA-01244-COA (denying rehearing)
  • Jackson v. State, 2023-KA-01280-COA (denying rehearing)
  • Hinds v. PERS, 2023-SA-01400-COA (denying rehearing)
  • Patterson v. State, 2024-KA-00268-COA (denying rehearing)
  • Brown v. State, 2024-CA-00307-COA (denying hearing)
  • Varnado v. State, 2024-KA-00338-COA (denying rehearing)
  • Polk v. State, 2024-KA-00591-COA (denying rehearing)
  • Wright v. State, 2025-TS-00986-COA (dismissing appeal as untimely)

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Mississippi Supreme Court Decisions of October 23 and October 30, 2025

My summaries of last week’s and today’s action from the Mississippi Supreme Court are below.

I will blame my tardiness in part on the fact that last week I had the privilege of presenting a civil case law update at the 2025 Law Clerk and Judicial Staff In-Person and Virtual CLE presented by The Bench-Bar Liaison Committee of the Mississippi Bar. It was a great time of catching-up with friends and presenting on something I am passionate about.

October 23, 2025

  • No Opinions

Other Orders

  • Harris v. Casino Vicksburg, LLC, 2023-CT-00959-SCT (denying cert)
  • Deer v. State, 2024-CT-00019-SCT (denying cert)
  • Hatchett v. State, 2024-CT-00100-SCT (denying cert)

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October 30, 2025

Lakeland Premier Women’s Clinic, PLLC v. Jackson, 2024-IA-00445-SCT (Civil – Medical Malpractice)
Reversing the trial court’s denial of a clinic and doctor’s motion for summary judgment in a med mal case on interlocutory appeal, holding that the trial court abused its discretion in denying the defendants’ motion for summary judgment and granting the plaintiff additional time to obtain an expert affidavit where the plaintiff filed a response to the motion for summary judgment on the day of the hearing without supporting medical affidavit or testimony.
(9-0: Branning for the Court)

Practice Point – The Court drew a distinction between the rule 56(c) which allows affidavits opposing an MSJ to be served as late as the day before the hearing and the uniform rule requiring a response to be filed within 10 days.

Jones v. State, 2024-KA-01356-SCT (Criminal – Felony)
Affirming conviction of attempted aggravated-assault, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence where evidence showed that the defendant pointed a gun at his neighbor before firing it.
(9-0: Maxwell for the Court)

Elliott Land Developments, LLC v. Board of Supervisors of Jackson County, Mississippi, 2024-CA-01249-SCT (Civil – Real Property)
Affirming the circuit court’s affirmance the board of supervisors’ denial of a rezoning application, holding that the board had jurisdiction, that whether the developer met its burden was a fairly debatable issue based on substantial evidence presented by each side, and that the board’s denial was not arbitrary or capricious.
(9-0: Coleman for the Court)

Chung v. State, 2023-CT-00362-SCT (Civil – Other)
Reversing the Court of Appeals and reinstating the trial court’s judgment, holding that sufficient evidence supported the trial court’s decision finding that the State met its burden of proof required in civil-forfeiture proceedings.
(5-4: Branning for the Court; Sullivan dissented, joined by King, Coleman, and Ishee)

Note – A 5-4 Court of Appeals reversed the trial court and a 5-4 Supreme Court reversed the Court of Appeals.

Other Orders

  • 1st Step Sober Living LLC v. Cleveland, 2023-CT-00665-SCT (denying cert)
  • In Re: Administrative Orders of the Supreme Court of Mississippi, 2025-AD-00001-SCT (directing the disbursement of $189,619.03, in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

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Mississippi Court of Appeals Decisions of September 30, 2025

The Mississippi Court of Appeals handed down five opinions yesterday. We closed out the month with a med mal/MTCA decision, a workers’ comp borrowed employee case, a felony conviction, a PCR case, and an MDOC administrative remedy case.

University of Mississippi Medical Center v. Giddens, 2024-CA-00842-COA (Civil – Wrongful Death)
Affirming judgment in favor of the plaintiff in a wrongful death med mal case brought under the MTCA, holding that the trial court’s decision that the decedent had not given informed consent for a procedure that constituted a breach of the standard of care and that the decision to perform that procedure during another procedure was a breach of the standard of care was supported by substantial credible evidence.
(10-0: St. Pe’ for the Court)

Walker v. State, 2024-CP-01032-COA (Civil – PCR)
Vacating and rendering judgment dismissing a PCR petition because the trial court lacked jurisdiction to consider the merits where the petition failed to first obtain permission from the Mississippi Supreme Court.
(10-0: McCarty for the Court)

Adams v. Hinds County School District, 2024-CA-00756-COA (Civil – Personal Injury)
Affirming the circuit court’s decision granting summary judgment in a personal injury case, holding that the trial court did not err in determining that the plaintiff (an employee of a staffing service) was a borrowed employee of the school district and that workers’ compensation was therefore her exclusive remedy.
(10-0: Wilson for the Court)

Walton v. State, 2024-KA-00818-COA (Criminal – Felony)
Affirming conviction of felony possession of stolen property, holding that the evidence was sufficient, that the trial could did not err in denying the motion for directed verdict or in refusing a peremptory instruction asserting that the State failed to prove the element of guilty knowledge, and that the verdict was not against the overwhelming weight of the evidence.
(10-0: Carlton for the Court)

Carroll v. State, 2024-CP-00875-COA (Civil – Other)
Affirming the circuit court’s dismissal of the petition for clarification of a sentencing order, holding that the circuit court reached the right result but for the wrong reason and explaining that the petition was untimely.
(7-3-0: Wilson, Westbrooks, and Emfinger concurred in part and in the result without writing)

Other Orders

  • Shipley v. Shipley, 2023-CA-00814-COA (denying rehearing)
  • Stephney v. State, 2023-KA-00936-COA (denying rehearing)
  • Mortera v. Kona Villa Owners Association, Inc., 2023-CA-01297-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of September 23, 2025

The Mississippi Court of Appeals handed down six opinions today. There is a reversal of a defense verdict in a med mal case and a reversal of a conviction. There are a couple of domestic relations cases and another criminal appeal.

Upchurch v. Lewis, 2023-CA-01296-COA, consolidated with Lewis v. Upchurch, 2024-CA-00396-COA (Civil – Med Mal)
Reversing the circuit court’s denial of the plaintiffs’ motion for JNOV in a med mal case after a defense verdict, holding that the plaintiffs presented substantial testimony that the defendant-physician breached the standard of care and that his negligence caused the plaintiff’s injuries, and that since the defendant-physician was not tendered or accepted as an expert there was no insufficient evidence to support the verdict in favor of the defendant; affirming the trial court’s decision requiring the appellee to pay the $30,000 for the appellee’s additional record designations.
(6-3: Weddle for the Court; Wilson dissented, joined by Barnes; Emfinger did not participate)

Sharp v. Sharp, 2024-CA-00171-COA (Civil – Domestic Relations)
Affirming the chancery court’s order clarifying its final judgment of divorce, holding that the chancellor had authority to clarify and correct the final judgment and did not abuse his discretion in doing so regarding 529 accounts or requiring the father to pay college education expenses.
(9-0: Emfinger for the Court)

Clark v. State, 2024-KA-00932-COA (Criminal – Felony)
Reversing conviction of one court of sexual battery, holding that the State’s improper reference to nonexistent DNA and repeated comments on evidence excluded by pretrial order amounted to denial of the defendant’s due process.
(8-2-0: McCarty for the Court; McDonald and Emfinger concurred in part and in the result without writing)

Thornhill v. Thornhill, 2023-CA-00714-COA (Civil – Domestic Relations)
Affirming the chancellor’s grant of divorce on the ground of desertion, holding that there there was substantial credible evidence supporting the basis for divorce, that the chancellor did not err in property evaluation or equitable division, or in granting rehabilitative alimony instead of periodic alimony.
(10-0: Lawrence for the Court)

Practice Point – This is excerpt is worth noting. Failure to raise an issue in a Rule 59 motion does not bar that issue on appeal as long as it was presented to and decided by the trial court:

Alexander v. Scarbrough, 2023-CA-01359-COA (Civil – Custody)
Affirming the chancellor’s award of full custody to a child’s mother, holding that there was substantial evidence to supporting the chancellor’s legal determinations and fact findings.
(10-0: Lawrence for the Court)

Harrison v. State, 2024-KA-00430-COA (Criminal – Felony)
Affirming conviction of two counts of sexual battery, holding that the defendant’s argument that the date range in his indictment was not overly broad was procedurally barred and without merit.
(9-1-0: Carlton for the Court; McCarty concurred in part and in the result without writing)

Other Orders

  • Magyar v. Shiers, 2023-CA-00682-COA (denying rehearing)
  • Brownless v. Brownless, 2023-CA-01044-COA (denying rehearing)
  • Ruffin v. State, 2024-CA-00867-COA (denying State’s motion to strike untimely motion for rehearing)
  • Walker v. State, 2025-TS-00584-COA (sua sponte allowing untimely appeal to proceed)
  • Robertson v. State, 2025-TS-00806-COA (sua sponte allowing untimely appeal to proceed)
  • Hoskins v. State, 2025-TS-00993-COA (allowing appeal to proceed as timely after taking pro se response to show cause notice well)

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Mississippi Court of Appeals Decisions of September 16, 2025

The Mississippi Court of Appeals handed down seven opinions today. We got a couple of custody decisions, a couple of MTCA decisions, a failure to prosecute a med mal lawsuit, a felony, and a PCR case.

E.H. v. Lee County Dept. of Child Protective Services, 2023-CA-00732-COA (Civil – Custody)
Affirming the youth court’s decision terminating parental rights, holding that the youth court’s decision was supported by substantial evidence and that the denial of a Rule 60 motion was not erroneous.
(10-0: St. Pe’ for the Court)

Cameron v. Miller, 2023-CA-01388-COA (Civil – Personal Injury)
Affirming the circuit court’s decision granting a motion to dismiss a med mal lawsuit for failure to prosecute, holding that the trial court did not abuse its discretion where the record demonstrated an overall case of dilatory conduct, substantial periods of inactivity, and untimely and reactionary steps.
(7-2-1: Weddle for the Court; Wilson concurred in part and in the result without writing; Westbrooks concurred in the result only without writing; McDonald concurred in part and dissented in part without writing)

Russell v. Booneville Police Dept., 2024-CP-00757-COA (Civil – Torts)
Affirming the dismissal of a lawsuit under the MTCA, holding that the circuit court did not err in dismissing the claim for law of presuit notice.
(10-0: Weddle for the Court)

Saddler v. State, 2024-CP-00099-COA (Civil – PCR)
Affirming dismissal of a PCR motion because the trial court did not err in finding it was time-barred.
(10-0: McCarty for the Court)

Hall v. Mitchell, 2024-CA-00667-COA (Civil – Wrongful Death)
Affirming the circuit court’s judgment for the defendant after bench trial, holding that the trial court’s decision that a parked county-owed truck was not the proximate cause of an collision between the decedent’s motorcycle and an SUV.
(8-2-0: McCarty for the Court; Wilson, Westbrooks, and McDonald concurred in part and in the result without writing)

Cunningham v. State, 2023-KA-01213-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not abuse its discretion in refusing the defendant’s jury instructions on self-defense, imperfect self-defense, and culpable-negligence manslaughter; that the trial court’s did not err in denying a pretrial motion and refusing proposed jury instructions regarding lost body-camera footage; that the trial court erred harmlessly in admitting the victim’s statement to EMTs; that the trial court did not “improperly console” the victim’s mother in the courtroom by expressing sympathy while admonishing her to keep her composure; that the conviction was supported by sufficient evidence and not against the overwhelming weight of it; and that the cumulative error doctrine did not apply.
(10-0: Wilson for the Court)

Hopkins v. Perry, 2024-CA-00467-COA (Civil – Custody)
Affirming in part and reversing in part the chancellor’s custody order, holding that the chancellor did not err in modifying visitation modification but remanding for an Albright analysis of the legal custody issue.
(9-0: Carlton for the Court; Westbrooks did not participate)

Other Orders

  • Horne v. Dolgencorp LLC, 2024-CA-00376-COA (denying rehearing)
  • Strong v. Acara Solutions, Inc., 2024-CA-00455-COA (denying rehearing)

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Double Issue: Mississippi Court of Appeals Decisions of July 29, 2025 and August 5, 2025

The Mississippi Court of Appeals handed down six opinions last week and nine opinions today. With fifteen total opinions, there is something for everybody. Among the summaries below is a lawsuit filed on behalf of a minor who did not make his school’s baseball team.

July 29, 2025

Soto v. Mississippi Export Railroad Company, 2024-CA-00638-COA consolidated with Loveless v. Mississippi Export Railroad Company, 2024-CA-00639-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the railroad in a car wreck case, holding that the railroad had no statutory or contractual duty to maintain traffic control devices while the road crossing the railroad was in the midst of an resurfacing project.
(9-1-0: St. Pe’ for the Court; McDonald dissented without writing)

James v. Memorial Hospital at Gulfport, 2024-CA-00459-COA (Civil – Med Mal)
Reversing summary judgment in a med mal case, holding that the plaintiffs’ response to the motion for summary judgment provided sufficient summary judgment proof including expert opinions and that the issue of whether a settled-defendant’s negligence was a superseding intervening act.
(10-0: Emfinger for the Court)

Strickland v. State, 2024-CP-00851-COA (Civil – PCR)
Reversing denial of PCR motion, holding that the indictment was void and remanding to set aside the guilty plea and for further consistent action.
(8-1-0: Lawrence for the Court; Carlton concurred in result only without writing; Emfinger did not participate)

Luster v. State, 2024-CA-00014-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not clearly earr in determining that proffered testimony was not newly discovered evidence.
(9-1-0: Westbrooks for the Court; McCarty concurred in part and in the result without writing)

West v. Gulf Relay, LLC, 2024-WC-00816-COA (Civil – Workers’ Comp)
Affirming the MWCC’s order, holding that substantial evidence supported the Commission’s finding that the claimant sustained an 80% industrial loss of use of his left upper extremity but apportioning that loss of use by 95%.
(9-1-: Carlton for the Court; McDonald concurred in part and in the result without writing)

Ramsey v. State, 2023-CP-00440-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding no merit to arguments that the guilty plea was involuntary and that counsel was ineffective.
(9-0: Barnes for the Court; St. Pe’ did not participate)

Other Orders

  • Jones v. State, 2022-KA-01124-COA (denying rehearing)
  • Ramsey v. State, 2023-CP-00440-COA (denying rehearing, substituting opinion)
  • 1st Step Sober Living LLC v. Cleveland, 2023-CA-00665-COA (denying rehearing)
  • Harris v. Casino Vicksburg, LLC, 2023-CA-00959-COA (denying rehearing)
  • Brooks v. State, 2023-KA-01081-COA (denying rehearing)
  • Jordan v. State, 2023-KA-01222-COA (denying rehearing)

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August 5, 2025

Polk v. State, 2024-KA-00591-COA (Criminal – Felony)
Affirming conviction of two counts of sexual battery of a minor under fourteen, holding that the trial court did not abuse its discretion in sustaining a relevancy objection during cross-exam of the victim or in sustaining objections to questions about the victim’s character trait for truthfulness, and that the trial court did not commit plain error violating the Confrontation Clause.
(8-2-0: Weddle for the Court; Barnes and Westbrooks concurred in part and in the judgment without writing)

In the Matter of the Conservatorship of Bennett: Bennett v. Bennett, 2023-CA-01385-COA (Civil – Other)
Affirming the chancery court’s finding of criminal contempt for violation of of order prohibiting appellant from visiting his mother in an elder-care facility and distributing mass mailings about his mother and her court proceedings, holding that the finding of contempt did not violate his rights to due process, free speech, or counsel.
(8-1-0: McDonald for the Court; Wilson concurred in part and in the result without writing; Weddle did not participate)

Green v. Presbyterian Christian School, Inc., 2023-CA-01278-COA (Civil – Torts)
Affirming motion to dismiss, holding that the parents who sued a school over their son not making the baseball team failed to state a claim under Rule 12(b)(6).
(7-2-1: Westbrooks for the Court; Wilson concurred in part and in the result without writing; Emfinger concurred in result only without writing; McCarty concurred in part and dissented in part without writing)

Johnson v. South Central Regional Medical Center, 2023-CA-00623-COA (Civil – Med Mal)
Affirming summary judgment dismissing a med mal case for failure to designate an expert witness, holding that the trial court did not err in granting the motion that was filed three years after the complaint was filed or in denying the plaintiff’s Rule 56(f) motion.
(10-0: Wilson for the Court)

Moyer v. Blades, 2023-CA-01180-COA (Civil – Personal Injury)
Affirming dismissal for failure to prosecute, holding that the trial court did not abuse its discretion in dismissing the lawsuit with prejudice under Rule 37 after the plaintiffs failed to respond to discovery for over a year and then failed to comply with a court order compelling them to respond.
(6-3-0: Wilson for the Court; McDonald and McCarty concurred in part and in the result without writing; Westbrooks concurred in result only without writing; Barnes did not participate)

Practice Point – I though this footnote was interesting from a civil defendant’s standpoint:

Goodloe v. State, 2023-KA-00960-COA (Criminal – Felony)
Affirming convictions of two counts of sexual batter and one count of fondling and sentencing as violent habitual offender, holding that allowing an expert to testify about the victims’ truthfulness was harmless error because the evidence of guilt sufficiently outweighed any harm caused by the admission and that the defendant did not receive ineffective assistance of counsel for failing to give an opening statement.
(7-2-0: Westbrooks and McDonald concurred in part and in the result without writing; Weddle did not participate)

Swims v. State, 2023-KA-01244-COA (Criminal – Felony)
Affirming conviction of second degree murder and possession of a firearm by a felon, holding that the trial court did not err in refusing the instruct the jury on the Weathersby rule, that the trial court did not abuse its discretion in allowing lay testimony about blood on the ground, and that though the trial court abused its discretion in admitting an autopsy report and in allowing testimony that simply repeated the autopsy report those errors were cumulative of admissible evidence and harmless.
(8-2: Wilson for the Court; Westbrooks concurred in part and dissented in part without writing; McDonald concurred in part and dissented in part, joined by McCarty in part)

Knox v. Alford, 2024-CA-00442-COA (Civil – Other)
Affirming the trial court’s order denying a Rule 60(b) motion to alter a judgment of a dismissal for want of prosecution, holding that the trial court did not err in finding that neither the plaintiff’s motion to leave his case on the docket filed in response to the clerk’s Rule 41 notice nor his request for a trial setting was a sufficient “action of record.”
(7-3: Barnes for the Court; Lawrence concurred in part and dissented in part, joined by Westbrooks and McDonald and joined in part by McCarty)

Brownlee v. State, 2024-CA-00585-COA (Civil – State Boards & Agencies)
Reversing and rendering the circuit court’s decision affirming MDOC’s denial of an ARP request for a parole-eligibility date, holding that MDOC lacked authority to disregard the sentencing court’s judgment and sentence even though the sentence was contrary to statute.
(6-1-3: Wilson for the Court; McDonald concurred in part and in the result without writing; Emfinger dissented, joined by Lawrence and Weddle)

Other Orders

  • Phinizee v. State, 2023-KA-01090-COA (denying rehearing)
  • Caffey v. Forrest Health, 2023-CA-01232-COA (denying rehearing)

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Mississippi Supreme Court Decisions of April 3, 10, 17, and 24, 2025

Here is Part 2 of my April catch-up posting. The Mississippi Supreme Court handed down nine opinions over the past four weeks. On April 3, appellants went 2-1 with a wills and estates undue-influence case, a divorce case, and an MTCA case with a seven-justice special concurrence addressing confusion in the post-Brantley era. Over the following three weeks there was a case addressing a name-change petition on behalf of a minor undergoing gender transition. There is also a case where a majority of the supreme court justices were unhappy with–but affirmed–the application of one of the Court’s rules requiring a defense attorney had to pay jury costs as part of his client’s plea bargain.

April 3, 2025

In Re Estate of Autry: Autry v. Autry, 2023-CA-01300-SCT (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s order invalidating warranty deeds and a last will and testament, holding that the will was invalid because it was not duly authenticated and that the warranty deeds were the product of undue influence.
(9-0)

Sistrunk v. Sistrunk, 2023-CA-01130-SCT (Civil – Domestic Relations)
Reversing the chancellor’s judgment in a divorce case, holding that the court erred by not making specific findings of fact supported by evidence for each of the Ferguson factors and that as a result the court also erred in its rulings on alimony, child support, use of the martial home, determination of marital assets, and attorney’s fees.
(9-0)

J.S. by and through Segroves v. Ocean Springs School District, 2023-CA-01009-SCT (Civil – Personal Injury)
Reversing the trial court’s grant of summary judgment in an MTCA case, holding (1) that discretionary-function immunity protected the defendant from claims that it failed to adopt sufficient policies and procedure, (2) that the plaintiff’s claims regarding negligent hiring, supervision, and training are claims sound in simple negligence and should not have been dismissed, and (3) that the plaintiff demonstrated a triable issue of fact on foreseeability.
(6-7*-1-0: Maxwell specially concurred, joined by Coleman, Chamberlin, Ishee, Griffis, Sullivan, and Branning; Griffis concurred in part and in the result without writing; Randolph did not participate)

Note – You know what that sound means… Justice Maxwell has written another special concurrence that garnered enough votes to have precedential effect. This concurrence addressed ongoing confusion in MTCA law after Wilcher overruled Brantley:

Other Orders

  • Georgen v. Estate of Brown-Barrett, 2023-CT-00344-SCT (denying cert)
  • Robinson v. State, 2023-KA-00773-SCT (denying rehearing)
  • Miller v. State, 2023-CT-00812-SCT (denying cert)
  • Adams v. State, 2025-M-00014 (denying petition for writ of habeas corpus in the nature of a post-conviction application, and finding that the filing was frivolous

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April 10, 2025

Hawkins v. State, 2023-KA-00978-SCT (Criminal – Felony)
Affirming conviction of one count of sexual battery and two counts of fondling, holding that the conviction was supported by sufficient evidence and that the verdict was not against the overwhelming weight of the evidence, and that the second trial did not violate double jeopardy where the first trial ended in mistrial due to juror misconduct.
(9-0)

Other Orders

  • LaFleur v. State, 2022-CT-00500-SCT (denying cert)
  • Wilkerson v. Allred, 2023-CT-00393-SCT (denying cert)
  • Fox v. Allen Automotive, Inc., 2023-CT-00441-SCT (denying cert)
  • Phillips v. Forrest County Industrial Park Commission, 2023-CT-01132-SCT (dismissing cert petition)
  • Williams v. Mississippi Farm Bureau Casualty Insurance Company, 2023-CA-01225-SCT (denying rehearing)

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April 17, 2025

In the Matter of S.M. v. Mississippi State Board of Health, 2023-CA-01379-SCT (Civil – Other)
Affirming the chancellor’s decision denying a minor female’s petition to legally change her name to a more masculine name as part of a gender transition, holding that the chancellor did not abuse her discretion in determining that the child needed to mature more before refiling her request and that the chancellor was not required to apply the Albright factors in reaching that decision.
(8-1: King dissented)

Mississippi Apartment Association v. City of Jackson, 2023-CA-01068-SCT (Civil – Other)
Affirming the chancery court’s decision granting a motion to dismiss an action seeking injunctions based on interpretations and enforcement of city ordinances, holding that the circuit court had exclusive jurisdiction in a previously-filed action challenging the City’s decision to adopt and also hand pendent jurisdiction over the equitable claims in chancery court.
(5-4: Coleman dissented, joined by Branning, Maxwell, and Griffis; Maxwell dissented, joined by Griffis, and joined in part by Coleman, and Branning)

In Re: Jex, 2024-CP-00291-SCT (Civil – Other)
Affirming the circuit court’s order requiring the defendant’s attorney to pay jury costs, holding that the record confirmed that the attorney voluntarily agreed to do so as part of negotiating a plea bargain for his client.
(4-5*-3: Chamberlin specially concurred, joined by Maxwell, Ishee, Griffis, and Branning; Sullivan dissented, joined by King and Coleman)

Note – Chamberlin’s special concurrence has a total of five votes giving it precedential value. Both the special concurrence and the dissent note some difficult facts in this case and the duress, albeit not “legal duress” the State put the defense attorney under.

Final Note – I count eight votes from the rule-making body unhappy with the application of a rule in this case (Rule 3.13 of the Uniform Civil Rules of Circuit and County Court Practice). See Newell v. State, 308 So. 2d 71 (Miss. 1975).

Other Orders

  • In Re: State Intervention Courts Advisory Committee, 89-R-99039-SCT (approving the designation of Katharine Surkin, Director of the Administrative Office of the Courts, of Justice Robert P. Chamberlin as Chair of the State Intervention Courts Advisory Committee and the following as members through December 31, 2026: Judge Michael M. Taylor, Judge Winston L. Kidd, Judge Robert Helfrich, Judge Charles E. Webster, Judge Kathy King Jackson, Judge Randi P. Mueller, Judge John White, Nathan Blevins Deputy Commissioner of Community Corrections, MDOC, Representative Kevin Horan, Chairman, House Judiciary B Committee, Andrea Sanders, Commissioner, Miss. Department of Child Protection Services, and Consuelo Walley, Coordinator, Jones County Drug Ct, 18th Judicial Circuit, and further designating the following alternate members who may attend and vote in the absence of an appointed committee member: Judge Mary “Betsy” Cotton, Judge Mike Dickinson, Judge Walt Brown and W. Dewayne Richardson, District Attorney, Fourth Circuit Court District.)
  • Brown v. State, 2023-CT-00648-SCT (denying cert)
  • In the Matter of Estate of Johnson: Manners v. Estate of Johnson, 2023-CT-00823-SCT (granting cert)
  • In Re: Administrative Orders of the Supreme Court of Mississippi, 2025-AD-00001-SCT (directing the disbursement of $149,116.92 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

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April 24, 2025

Quinn v. State, 2024-KA-00195-SCT (Criminal – Felony)
Affirming conviction of attempted murder and possession of a firearm by a felon, holding that the trial court did not err by denying the defendant’s proposed jury instruction defining “homicide,” “murder,” and “deliberate design,” and that the evidence was sufficient to support the conviction.
(9-0)

United Emergency Services of Mississippi, Inc. v. Miller, 2023-IA-00767-SCT, consolidated with Baptist Memorial Hospital-Golden Triangle, inc. v. Miller, 2023-IA-00772-SCT (Civil – Wrongful Death)
Affirming in part and reversing in part the circuit court’s denial of the defendants’ motions for summary judgment in a med mal case, holding that the there were genuine issues of material fact as to all claims except those relying on the theory that one defendant-doctor should have admitted the decedent to the hospital.
(9-0)

Other Orders

  • Knight v. State, 2022-KA-01138-SCT (denying rehearing)
  • Middleton v. State, 2024-IA-00144-SCT (denying rehearing)
  • McPhail v. McPhail, 2024-TS-00849 (reinstating appeal)

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Mississippi Court of Appeals Decisions of April 8, 15, and 22, 2025

After a few weeks of attending to other matters, I am back on the blogging horse. Fortunately, the appellate courts went relatively light on me in terms of the number of decisions handed down.

Summaries the hand downs from the Mississippi Court of Appeals from the past three weeks are below. There are several divorce cases, three mal cases (two opinions reached different results after the respective plaintiff’s expert testimony was struck), several MTCA cases, personal injury cases, felonies, an arbitration case, and more.

April 8, 2025

McFall v. Osborne, 2023-CA-01234-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision in a divorce action denying the ex-husband’s Rule 60(b) motion attacking the court’s subject matter jurisdiction, holding that the chancellor had subject matter jurisdiction, that the ex-husband could not attack the merits of the underlying judgment because it was not appealed in time, and that the chancellor did not err in finding the ex-husband in contempt for failing to pay as ordered in the underlying judgment.
(9-0: Westbrooks did not participate)

Estate of Boleware v. McPhail, 2024-CA-00156-COA (Civil – Wills, Trusts & Estates)
Affirming with modification the circuit court’s decision staying litigation and compelling arbitration, holding that the circuit court did not err in finding that the arbitration agreement was valid but modifying the judgment to clarify that the arbitrator must decide whether the claims are within the scope of the arbitration agreement.
(9-1-0: McDonald concurred in the result without writing)

Short v. Polles, 2023-CA-00607-COA (Civil – Torts)
Affirming the circuit court’s dismissal of a farmer’s suit against MDWFP for issuing a permit permitting the farmer to kill deer to protect his soybean field but limiting it to does only, holding that the circuit court did not err in finding that the agency was immune from suit because permit decisions were within the agency’s power and its actions were not arbitrary and capricious.
(8-2-0: Barnes and Wilson concurred in part and in the result without writing)

Other Orders

  • Brooks v. State, 2023-KA-01081-COA (granting pro se motion for time to file motion for rehearing)
  • Bridget v. State, 2025-TS-00100-COA (dismissing appeal for lack of appealable judgment)

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April 15, 2025

E. Cornell Malone Corp. v. Marshall Cnty. Sch. Dist., 2024-CA-00047-COA (Civil – Contract)
Affirming the circuit court’s dismissal of a complaint against the County related to a construction project, holding that the trial court did not err in finding that the tort claims were barred by the MTCA’s one-year statute of limitations or in denying the motion to amend the complaint.
(9-1-0: Carlton dissented without separate written opinion)

Anderson v. State, 2023-KA-00967-COA (Criminal – Felony)
Affirming conviction of murder, holding that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Pinkton v. State, 2024-CP-00655-COA (Civil – PCR)
Affirming dismissal of a PCR motion, holding that the trial court did not err in finding that the claims were time-barred, waived, and without merit.
(6-4-0: McCarty concurred, joined by Wilson, Emfinger, and Weddle)

Goodson v. State, 2023-KA-00729-COA (Criminal – Felony)
Affirming conviction of possession of meth, holding that the circuit court did not err in denying the defendant’s motion to suppress, in granting the State’s motion in limine preventing the defendant from raising the defense of bias against by the sheriff’s department, or in denying his motion for JNOV or for new trial.
(10-0)

Jordan v. State, 2023-KA-00965-COA (Criminal – Felony)
Affirming conviction of shooting into a dwelling after reviewing the record and counsel’s Lindsey brief, holding that there was sufficient evidence to support the conviction and no issues warranting reversal.
(9-1-0: McDonald concurred in result only without writing)

Holifield v. Highland Community Hospital, 2023-CA-01342-COA (Civil – Med Mal)
Affirming dismissal of MTCA claims against a community hospital, holding that the trial court did not err in determining that the community hospital was a division of a governmental entity and not a separate entity that could be sued or in denying the plaintiffs’ motion for leave to amend to substitute the correct governmental entity because the claim would be time-barred.
(7-3-0: Wilson, McDonald, and McCarty concurred in part and in the result without writing)

Lee v. Doolittle, 2023-CA-00969-COA (Civil – Med Mal)
Reversing summary judgment in favor of the defendants in a med mal case, holding that the circuit court abused its discretion in striking the plaintiff’s expert and then in granting summary judgment for lack of expert testimony.
(5-1-4: Wilson concurred in part and in the judgment without writing; Carlton dissented, joined by Barnes, Emfinger, and St. Pe’)

Other Orders

  • Miller v. State, 2023-CP-00322-COA (denying rehearing)
  • Estate of Forkner: Berry v. Forkner, 2023-CA-00707-COA (denying rehearing)

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April 22, 2025

Nabors v. State, 2024-KA-00006-COA (Criminal – Felony)
Affirming conviction of aggravated assault of law enforcement, holding that there was sufficient evidence of the defendant’s intent to commit aggravated assault, that the verdict was not against the weight of the evidence, that the trial court did not commit plain error in giving a flight instruction, and that trial counsel was not ineffective.
(10-0)

Crocker v. Daves, 2023-CA-00602-COA (Civil – Custody)
Dismissing appeal in a custody matter, holding that the chancellor’s order holding child support in abeyance due to insufficient information before the court to award child support based on statutory guidelines was not a final, appealable order.
(10-0)

Elmore v. Elmore, 2023-CA-00875-COA (Civil – Domestic Relations)
Affirming a judgment granting divorce and dividing marital property, holding that the chancellor did not err in classifying assets as marital property, in determining what property was marital property or in equitably distributing marital assets, or in denying the motion for new trial or to alter or amend the judgment.
(8-1-0: Wilson concurred in part and dissented in part; St. Pe’ did not participate)

Mallery v. State, 2024-CP-00220-COA (Civil – PCR)
Dismissing appeal of PCR denial, holding that there was no longer an actual controversy since the petitioner had been released from custody.
(9-0: Lawrence did not participate)

Simmons v. City of Picayune, 2024-CA-00092-COA (Civil – Personal Injury)
Affirming summary judgment dismissing a premises liability claim stemming from a fall on a handicap ramp, holding that the plaintiff failed to establish a genuine issue of material fact that the curb ramp constituted a dangerous condition.
(10-0)

Cox v. Coast 132 LLC, 2023-CA-01290-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a restaurant in a slip-and-fall case, holding that the windowsill that allegedly caused the fall was not a dangerous condition and that even if it was a dangerous condition the plaintiff could not prove that the restaurant created it or had actual or constructive knowledge of it.
(8-2-0: Westbrooks and McDonald concurred in result only without writing)

Sandlin v. State Farm Mutual Automobile Ins. Co., 2023-CP-01347-COA (Civil – Insurance)
Affirming dismissal of a pro se UM claim, holding that the trial court did not err in finding that the defendant had not been properly served with process and that the statute of limitations on the claim had run.
(9-1-0: McDonald concurred in result only without writing)

Younger v. Southern, 2022-CA-01228-COA (Civil – Personal Injury)
Affirming part and reversing in part the circuit court’s judgment after a bench trial in a personal injury claim under the MTCA, affirming the award for the loss of the plaintiff’s truck, but reversing the award of damages for past, present, and future pain and suffering and reversing the award of $21,120 in medical damages for lack of expert testimony and rendering an award of $399 for past medical expenses.
(7-3: Westbrooks concurred in part and dissented in part, joined by McDonald and McCarty; McDonald concurred in part and dissented in part, joined by Westbrooks and McCarty)

Calvin-Williams v. The Greenville Clinic, P.A., 2023-CA-01021-COA (Civil – Med Mal)
Affirming the circuit court’s order granting summary judgment in favor of the defendant, holding that the circuit court did not err in striking portions of the plaintiff’s expert’s testimony and then granting summary judgment based on the lack of expert testimony.
(8-2: McDonald dissented, joined by Westbrooks)

Other Orders

  • Parker v. State, 2023-KA-00550-COA (denying rehearing)
  • Estate of Roberts: Herd v. Stokes, 2023-CA-00713-COA (denying rehearing)
  • Gardner v. State, 2023-KA-00903-COA (denying rehearing)
  • Lawson v. State, 2023-CP-01008-COA (denying rehearing)
  • Jack v. City of Meridian, 2023-CC-01339-COA (denying pro se motion to recall mandate and dismissing motion for rehearing and amended motion for rehearing)

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Mississippi Court of Appeals Decisions of March 25, 2025

The Mississippi Court of Appeals handed down eight opinions today. One opinion is an appeal from a hybrid MTCA/common law med mal trial that cites a law journal article I wrote several years ago on an unresolved procedural conundrum. There is also a premises liability summary judgment case, a breach of contract/attorney’s fees case, three direct criminal appeals, and two PCR cases.

Brown v. State, 2023-CA-00921-COA (Civil – PCR)
Affirming denial of PCR, holding that the trial court did not err in summarily dismissing the PCR petition as time-barred.
(10-0)

Foote v. Memorial Hospital at Gulfport, 2023-CA-00504-COA (Civil – Med Mal)
Affirming the circuit court’s judgment in a med mal action against a hospital (a public entity) and a surgeon and the surgeon’s clinic (private entities) after a single, bifurcated bench and jury trial in which the trial court dismissed the claims against the hospital, holding that if the trial court relied on counsel’s closing statements as evidence it was error but harmless because there was sufficient evidence on the point, that the trial court did not err in finding that the plaintiff failed to present a prima facie case that the surgeon proximately caused or contributed to the injuries, and that the plaintiff failed to object to the jury’s involvement in the MTCA claim so the trial court did not err in partially bifurcating the trial where the jury decided the claims against the private defendants and gave an advisory verdict as to the public defendant, and that the trial court did not err in allowing the jury to allocate fault to the public defendant and the finding that the allocation was not supported by substantial evidence.
(7-2-1: Wilson and Emfinger concurred in part and in the result without writing, Lawrence dissented)

NOTE – I was excited to see one of my law review articles cited in this opinion. (If you are so inclined, you can read my article here.) There is no clear guidance from the rules or case law as to how trials should proceed when there a public defendant (entitled to a bench trial under the MTCA) and private defendant (entitled to a jury trial under Mississippi’s constitution, et al). I advocated for a specific procedure in the article that was cited in today’s opinion. In today’s case, the public defendant advocated for the procedure I proposed and the plaintiff argued for a different approach that involved the jury rendering an advisory verdict as to the public defendant. The trial court adopted the plaintiff’s approach. The plaintiff complained about the procedure on appeal, but the Court of Appeals held he could not argue that the trial court erred in following his proposal. Here is the Court of Appeals’ recapitulation of the argument following my proposal:

In 2016, the Rules Committee on Civil Procedure solicited input for a “Mississippi Rules of Civil Procedure Revision Project.” I submitted a proposed amendment to Rule 38 along with a copy of my article:

I never did hear anything back.

Blumer v. Majestic Homes, LLC, 2024-CA-00163-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s order granting summary judgment in favor of a homeowner against a home builder awarding liquidated damages, attoyne’s fees, and expenses, holding that the trial court did not err entering a corrected order granting relief under Rule 60(b) since there had been no judgment expressly adjudicating the remaining claims and that the trial court did not err in dismissing the claims against the home builder in his individual capacity, but that the trial court did err in reducing the award of attorney’s fees.
(9-0: Emfinger did not participate)

Dewberry v. State, 2023-KA-01135-COA (Criminal – Felony)
Affirming conviction of one count of sexual battery, one count of fondling, and one count of child exploitation, holding that the trial court did not err in seating jurors after a Batson challenge and that a jury instruction did not constitute a constructive substantive amendment of a count in the indictment under the plain-error doctrine.
(10-0)

Rodriguez v. Diamondhead Country Club, 2024-CA-00238-COA (Civil – Torts)
Affirming summary judgment in favor of the defendant in a premises liability case, holding that the trial court did not err in finding that a one-half-inch height differential between sidewalk slabs was not a dangerous or unreasonably hazardous condition or in finding that there was no evidence to support a negligence per se claim under the ADA where the plaintiff was not disabled.
(10-0)

Thomas v. State, 2023-KA-00512-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not err in admitting a Facebook post, that the trial court did not err denying a directed verdict under Weathersby, that the conviction was support by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err in denying a motion to suppress the defendant’s statements to law enforcement, that the trial court did not err in admitting autopsy photos, and that the cumulative error doctrine did not apply.
(8-2-0: Emfinger concurred in part and in the result without writing; McDonald concurred in result only without writing)

Rasberry v. State, 2023-KA-01161-COA (Criminal – Felony)
Affirming conviction of failing to register as a sex offender, holding that the lack of specificity in the indictment was at most harmless error, that the trial court did not err by granting an unopposed motion to amend the indictment, and that trial counsel was not ineffective.
(10-0)

Deer v. State, 2024-CP-00019-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the trial court properly dismissed the motion pursuant to the UPCCRA’s three-year statute of limitations.
(9-0: Emfinger did not participate)

Other Orders

  • None

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Mississippi Supreme Court Decisions of February 27, 2025

The Mississippi Supreme Court handed down three opinions today. One addresses a service-of-process issue in a med mal case and the other two are direct criminal appeals. Once of the criminal cases reversed under the cumulative-error doctrine.

Webster v. University of Mississippi Medical Center Grenada, 2023-CA-00687-SCT (Civil – Med Mal)
Affirming the trial court’s order of dismissal for failure to serve process, holding that Rule 4(d)(5) applied, not Rule 4(d)(8), so UMMC had to be served by service on the attorney general which was not done within the time allowed under Rule 4(h).
(9-0)

Minor v. State, 2022-CT-00990-SCT (Criminal – Felony)
Reversing convictions of possession of marijuana and trafficking of THC, holding that cumulative-error doctrine applied where the State commented on the defendant’s right to remain silent, elicited inflammatory testimony regarding the effect of edible son children without evidentiary basis, referring to an out-of-court statement made by someone the defendant did not have an opportunity to cross examine, and improperly implied the defendant must be guilty because another defendant was guilty because these errors undermined the fairness of the defendant’s trial.
(4-3: Griffis dissented, joined by Maxwell and Branning; Randolph and Sullivan did not participate)

Jones v. State, 2023-KA-00876-SCT (Criminal – Felony)
Affirming conviction of sexual battery and fondling, holding that the defendant did not show that trial counsel’s failure to file post-trial motions prejudiced his defense.
(7-2: King dissented, joined by Griffis)

Other Orders

  • Gilmer v. Biegel, 2022-CT-00528-SCT (denying motion for citation of contempt and sanctions as moot)
  • Nettles v. Nettles, 2023-CT-00041-SCT (dismissing cert)
  • Brown v. State, 2023-CT-00082-SCT (denying cert)
  • Aldridge v. South Tippah County School District, 2023-CT-00418-SCT (denying cert)

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