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
Mississippi Appeals Blog 