The Mississippi Court of Appeals handed down five opinions this week. There is a domestic/separate maintenance decision, a third-party assault tort case, a direct appeal of a felony conviction, and two PCR cases.
Hasley v. Hasley, 2022-CA-00908-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancellor’s decision in a separate maintenance action, holding that there was no abuse of discretion in denying the husband’s motion to dismiss the complaint but that the chancellor erred by converting the temporary orders of spousal support to a final order. (10-0)
White v. State, 2023-CP-00200-COA (Civil – PCR) Reversing the circuit court’s revocation of release, holding that because the circuit judge had been the assistant DA who had prosecuted the petitioner the judge was disqualified from presiding over the revocation hearing and that this error was not harmless. (9-0: Smith did not participate)
Mack v. Merimac Apartments, 2022-CA-00897-COA (Civil – Torts) Affirming summary judgment in a third-party assault case against an apartment complex, holding that evidence of some crime occurring on and near the subject property was sufficient summary judgment evidence on the element of proximate cause. (6-3-1: Barnes and Wilson concurred in part and in the judgment without writing; Westbrooks concurred in the result only without writing; McDonald concurred in part and dissented in part without writing)
Galarza v. State, 022-KA-01066-COA (Criminal – Felony) Affirming conviction of first-degree murder and possession of a firearm by a felon, holding that the circuit court did not abuse its discretion in admitting character evidence of the defendant’s prior convictions for manslaughter. (7-3-0: Wilson and Emfinger concurred in part and in the result without writing; McCarty concurred in the result only without separate written opinion.)
Smith v. State, 023-CP-00538-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the petitioner’s claims were procedurally barred and that there was no merit to the petitioner’s arguments that he was entitled to a bifurcated hearing at sentencing and that there was insufficient proof of his prior convictions to warrant his sentencing as a habitual offender. (10-0)
Other Orders
Kuebler v. State, 2020-KA-00027-COA (remanding sua sponte for correction of the record)
Okorie v. National Association Wells Fargo Bank, 2022-CP-00043-COA (denying appellant’s pro se “motion to reopen case based on fraudulent settlement agreement”)
Moore v. State, 2022-KA-00327-COA (denying rehearing)
Edwards v. State, 2022-KA-00719-COA (denying rehearing)
Smith v. State, 2022-KA-00852-COA (denying rehearing)
Saddler v. State, 2024-TS-00099-COA (sua sponte allowing appeal to proceed)
The Mississippi Court of Appeals handed down ten opinions today. They started out with a run of short and sweet 10-0 opinions and then things got more interesting. There are two split opinions on the admission of confessions, a construction contract/negligence case, a divorce decision, several more direct criminal appeals, and a couple of PCR opinions.
Johnson v. State, 2022-KA-01127-COA (Criminal – Felony) Affirming conviction of sexual battery, holding that after a review of counsel’s Lindsey Brief and the record that there was no reversible error. (10-0)
Carter v. State, 2023-KA-00052-COA (Criminal – Felony) Affirming conviction of second-degree murder, holding that the trial court did not err in refusing the defendant’s accident instruction and that the castle-doctrine’s presumption of fear was procedurally barred and that the evidence was sufficient to show that the defendant did not act in self defense. (10-0)
Reed v. State, 2023-KA-00248-COA (Criminal – Felony) Affirming conviction of possession of hydrocodone/acetaminophen, holding that after a review of counsel’s Lindsey Brief and the record that there was no reversible error. (10-0)
Dobbins v. State, 2023-CA-00562-COA (Civil – PCR) Affirming summary dismissal of PCR petition, holding that the petition was statutorily barred. (10-0)
Mac Long Homes, LLC v. Olvera Construction, LLC, 2022-CA-00938-COA (Civil – Contract) Affirming in part and reversing in part the circuit court’s dismissal of of a contractor’s claims against a subcontractor after the contractor lost an arbitration proceeding against the homeowner, holding that the breach of contract and negligent misrepresentation claims were time-barred, that the common-law indemnity claim was not yet ripe so dismissal without prejudice was proper, that the negligence claim was not time-barred, and that the circuit court did not err in denying the plaintiff’s motion to amend the complaint. (8-2-0: Westbrooks specially concurred, joined by McDonald and McCarty; Wilson concurred in the result only without separate written opinion)
NOTE – The common-law indemnity holding here is interesting. I have been in and around the argument that crossclaims of common-law indemnity against codefendants are not proper for lack of ripeness. I expect that this opinion will be cited frequently in the future.
Hollon v. State, 2023-CP-00202-COA (Civil – PCR) Affirming denial of PCR petition, holding that the guilty plea was voluntary and not coerced, that trial counsel was not ineffective, and that the petitioner was not otherwise entitled to relief. (9-0: Smith did not participate)
Winstead, v. State, 2022-KA-01235-COA (Criminal – Felony) Affirming conviction of leaving the scene of an accident resulting in death, holding that the trial court erred in admitting the defendant’s confession because it was obtained in violation of Edwards v. Arizona but that the error was harmless in light of the overwhelming weight of evidence of guilt, and holding that the trial court did not err by admitting a bloodstain card. (6-4: Carlton concurred in part and in the result without writing; Greenlee and Smith concurred in part and dissented in part without writing; Lawrence concurred in part and dissented in part, joined by Carlton, Greenlee, and Smith.)
NOTE – The partial dissent took issue with the majority’s holding that the confession should have been excluded. Here is the majority’s summary of its holding on that issue:
Smith v. State, 2023-KA-00185-COA (Criminal – Felony) Affirming conviction of sexual battery of a minor, holding that the circuit court did not err in admitting the defendant’s confession or by holding the trial in absentia. (4-2-4: Wilson and Emfinger concurred in part and in the result without writing; McCarty dissented, joined by Westbrooks and McDonald, and joined in part by Barnes and Emfinger)
Weatherly v. Weatherly, 2022-CA-00804-COA (Civil – Domestic Relations) Affirming the chancellor’s rulings in a divorce proceeding, holding that the chancellor did not err in awarding sole physical custody to the mother, in awarding child support to the mother to the father despite the mother’s significantly higher income, in the valuation and distribution of marital property, in awarding the father alimony, or in denying the father’s request for attorney’s fees. (3-2-4: McDonald and McCarty concurred in part and in the result without writing; Barnes, Westbrooks, and Emfinger concurred in part and dissented in part without writing; Wilson concurred in part and dissented in part, joined by Barnes, Westbrooks, and Emfinger, and joined in part by McDonald and McCarty; Smith did not participate)
City of Verona v. Moffett, 2022-WC-01050-COA (Civil – Workers’ Comp) Affirming the MWCC’s finding that a former police officer sustained an 80% loss of wage-earning capacity, holding that there was substantial, credible evidence supporting the Commission’s decision that was based on evidence of physical injuries and PTSD resulting from a physical assault while the claimant was responding to a domestic violence call. (6-1-3: McCarty concurred in part and in the result without writing; Wilson dissented, joined by Smith and Emfinger.)
Other Orders
Silver Dollar Sales, Inc. v. Battah, 2022-CA-00476-COA (rehearing denied)
Fluker v. State, 2022-KA-00692-COA (denying rehearing)
Quinn v. State, 2022-KA-00962-COA (denying rehearing)
The Mississippi Court of Appeals handed down six opinions on Tuesday. I had court in Union County that took me out of the office most of the day Tuesday. I then spent Wednesday making up for being out of the office on Tuesday, as one does. (Obligatory courthouse picture, infra.)
Taylor v. Johnson, 2022-CA-00734-COA (Civil – Personal Injury) Affirming grant of summary judgment in a car wreck negligence case, holding that there was no competent summary judgment evidence that the defendant proximately caused the collision, and then affirming summary judgment on the direct-negligence and punitive damages claims as moot. (8-1-1: McDonald concurred in result only without writing; Westbrooks dissented without writing)
Whiddon v. State, 2022-KA-00616-COA (Criminal – Felony) Affirming conviction of first-degree murder, aggravated assault with a deadly weapon, aggravated assault of a law enforcement officer, and fleeing a law enforcement officer, holding that the trial court did not err in denying motions to dismiss for lack of speedy trial, that the circuit court abused its discretion in excluding videotaped witness statements but that the error was harmless, that the court did not commit reversible error in commenting in front of the jury that a witness was “an excellent investigator,” that the evidence was sufficient to support the verdict, and that the verdict was not against the overwhelming weight of the evidence. (7-3-0: McDonald and Emfinger concurred in part and in the result without writing; Wilson concurred in the result only without writing)
Turner v. Turner, 2023-CA-00216-COA (Civil – Domestic Relations) Reversing dismissal of complaint for divorce, holding that the chancellor erred by considering matters outside of the pleadings when ruling on a motion to dismiss under Rule 12(b)(6) without converting it into a motion for summary judgment and providing necessary notice. (10-0)
Suarez v. State, 2023-KA-00526-COA (Criminal – Felony) Affirming conviction of burglary of an occupied dwelling under circumstances likely to terrorize the occupant, holding that the evidence was sufficient to support his conviction and that the trial court did not err in refusing the defendant’s lesser-included-offense jury instruction. (7-3-0: Wilson, McDonald, and McCarty concurred in result only without separate written opinion)
Harris v. State, 2023-CP-00227-COA (Civil – PCR) Affirming denial of PCR motion following probation revocation, holding that the trial court’s failure to inquire about the petitioner’s ability to pay his fees and assessments was harmless error at most. (10-0)
Crawford v. East Miss. State Hospital, Inc., 2022-CA-00753-COA (Civil – Wrongful Death) Affirming judgment in favor of a hospital in a wrongful death lawsuit after bench trial, holding that the circuit court did not err in finding that the plaintiff did not prove the proximate cause element or in denying the plaintiff’s claim for the decedent’s “lifetime damages” because the estate was initially a party before being removed as a party via amendment to the complaint. (6-2: McCarty concurred in part and dissented in part, joined by Westbrooks; McDonald and Smith did not participate)
Other Orders
Mississippi Dept. of Rehab. Servs v. Butler, 2022-CA-00176-COA (rehearing denied)
Harris v. Ratcliff, 2022-CA-00596-COA (rehearing denied)
Simmons v. State, 2022-KA-01260-COA (rehearing denied)
The Mississippi Court of Appeals handed down four opinions yesterday. There is a workers’ comp case, a divorce case, a direct criminal appeal, and an MDOC appeal.
White v. The Home Depot, 2022-WC-00894-COA (Civil – Workers’ Comp) Affirming the MWCC’s decisions related to alleged work injuries, holding that there was substantial evidence to support the Commission’s denial of the claimant’s request to change physicians, to continue medical treatment, and to receive indemnity benefits as to the first alleged injury, and to support the Commission’s finding that the second alleged injury was not compensable under the MWCA. (10-0)
Brecheen v. Brecheen, 2022-CA-00190-COA (Civil – Domestic Relations) Affirming the chancery court’s rulings in a divorce proceeding on direct appeal and cross-appeal, holding that the chancellor did not abuse her discretion restricting the place and condition of the father’s visits based on a history of domestic violence, using paycheck stubs from the father’s previous employment to calculate child support, classifying the father’s severance package as marital property, or allowing the father to claim the minor child for tax purposes every other year. (10-0)
Mai v. State, 2022-KA-00798-COA (Criminal – Felony) Affirming conviction of fondling a child, holding that the evidence was sufficient to support the conviction, that the circuit court did not err in refusing a jury instruction that was not supported by Mississippi case law, and that the defendant’s failure to obtain a ruling on his objection to the admission of Rule 404(b) waived the argument on appeal. (9-0: Emfinger did not participate)
Clark v. McDonald, 2022-CP-01296-COA (Civil – State Boards and Agencies) Affirming a series of affirmances of a finding that an inmate violated a rule against assault by stabbing another inmate with a shiv, holding that there was no violation of the inmate’s procedural due process rights. (10-0)
Other Orders
MDHS v. Johnson, 2022-SA-00605-COA (denying rehearing)
Harper v. State, 2022-KA-00659-COA (denying rehearing)
Hills v. Manns, 2022-CA-00774-COA (denying rehearing)
Barefield v. Barefield, 2022-CA-00834-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (denying rehearing)
The Mississippi Court of Appeals handed down four opinions yesterday. There was a wills and estates case that was more of an appellate procedure case, a real property contract for sale case, a direct criminal appeal, and a tort/statute of limitations case.
Brown v. Black, 2022-CA-00869-COA (Civil – Wills, Trusts & Estates) Dismissing appeal of a chancellor’s decision awarding attorneys fees, holding that the 2021 order on attorney’s fees was final and appealable regardless of 2022 certification and that the appeal was therefore untimely. (9-0: Smith did not participate)
Eaton v. Haney, 2022-CA-00656-COA (Civil – Contract) Affirming the chancellor’s decision requiring specific performance for sale of real property and awarding damages and attorneys fees, holding that there was a valid contract for the sale of the real property and that the fact dispute between the parties was for the chancellor to decide and that the award of attorney’s fees was within the chancellor’s discretion. (9-1: Emfinger dissented)
Hand v. State, 2022-KA-00819-COA (Criminal – Felony) Affirming conviction of kidnapping and child exploitation, holding that the verdicts were not against the overwhelming weight of the evidence. (10-0)
Pettis v. Northeast Mississippi Electric Power Association, 2022-CA-00688-COA (Civil – Torts) Affirming dismissal of a negligence claim under the doctrine of res judicata and the IIED and loss of consortium claims on statute of limitations grounds, holding that the discovery rule did not apply and that any fraudulent concealment arguments were waived for failure to raise them in the trial court. (7-1-0: Westbrooks and McDonald concurred in result only without written opinion, Barnes did not participate)
Other Orders
Brown v. State, 2022-KA-00446-COA (denying rehearing)
Russell v. State, 2022-KA-00447-COA (denying rehearing)
Snyder v. Estate of Cockrell, 2022-CA-00597 (denying rehearing)
Galvan v. State, 2022-KA-00655-COA (denying rehearing)
The Mississippi Court of Appeals handed down three opinions on Tuesday. The case that stood out to me was Murphy v. William Carey University not because of the result but because of how the Court of Appeals discussed the Horton doctrine. The special concurrence pulled no punches.
Frazier v. State, 2022-KA-00896-COA (Criminal – Felony) Affirming conviction of first-degree murder with firearm enhancement, holding that the circuit court did not err in denying a heat-of-passion manslaughter instruction and did not abuse its discretion in refusing to allow the defendant to read proffered testimony from the first trial that ended with a mistrial on the first-degree murder charge. (10-0)
Murphy v. William Carey University, 2022-CA-00379-COA (Civil – Med Mal) Reversing the trial court’s grant of summary judgment in a med mal case based on lack of pre-suit notice and the statute of limitations, holding that the defendant waived those defenses by failing to pursue them while actively participating in litigation. (7-2: Lawrence specially concurred joined by McDonald, Smith, and Emfinger, and joined in part by Wilson and Westbrooks; Greenlee dissented, joined by Carlton)
NOTE – I find the discussion of the Horton doctrine fascinating. The majority opinion and the special concurrence threw some shade at the development of the Horton doctrine and how it has been applied. The majority opinion included this statement and footnote:
The special concurrence upped the ante and sharply criticized the state of the Horton doctrine. I read the special concurrence (carrying four votes and two “in part” votes) as a challenge to the Mississippi Supreme Court to clean up the Horton doctrine:
The special concurrence concluded with this:
I am not sure this is the best “test case” for the Horton doctrine based on the facts, but I will be watching for a cert petition.
The City of Pascagoula, Mississippi v. Cumbest, 2022-CA-00745-COA (Civil – State Boards & Agencies) Reversing on direct appeal and reversing on cross-appeal in a case over whether private property was “menace” under Miss. Code Ann. section 21-19-11, holding that the circuit court erred in reversing the city council’s determination that the property was a “menace” and finding no abuse of discretion in the circuit court’s denial of the property owner’s decision denying the owner’s motion to compel production of documents. (5-4: Westbrooks concurred in part and dissented in part without separate written opinion; McDonald concurred in part and dissented in part, joined by Wilson, Westbrooks, and McCarty; Lawrence did not participate)
NOTE – The concurrence took issue with the City making the “menace” determination based on the condition of the property before the hearing and not at the time of the hearing.
Other Orders
Friley v. State, 2021-KA-00791-COA (denying rehearing)
Smith v. Ford, 2022-CA-00255-COA (denying rehearing)
Burns v. BancorpSouth Bank, 2022-CA-00404-COA (denying rehearing)
Moore v. Mississippi Farm Bureau Casualty Insurance Company, 2022-CA-00555-COA (denying rehearing)
Edwards v. State, 2022-KA-00719-COA (recalling mandate and permitting pro se motion for rehearing to proceed)
Scales v. State, 2022-KA-00856-COA (denying rehearing)
Thompson v. Thompson, 2022-CA-01014-COA (dismissing motion for rehearing as untimely)
The Mississippi Court of Appeals handed down eight opinions today. There was a med mal case dismissed on statute of limitations grounds, an IIED verdict, an interpleader by a bank to determine the appropriate beneficiary-on-death of a CD, a zoning decision, a felony conviction, and a few PCR cases.
Jordan v. States, 2022-CP-00874-COA, consolidated with 2022-CP-00877-COA and 2023-CP-00072-COA (Civil – PCR) Affirming denials of three PCR motions, holding that all three motions were barred as subsequent PCR motions and that no exception to the bar was supported. (10-0)
Jones v. State, 2022-KA-01117-COA (Criminal – Felony) Affirming conviction of two counts of child exploitation after the “underage female” the defendant attempted to meet up with turned out to be an undercover officer, holding that the entrapment jury instruction was properly rejected and that the convictions were not against he overwhelming weight of evidence. (10-0)
Rogers v. NewSouth NeuroSpine LLC, 2022-CP-01036-COA (Civil – Med Mal) Affirming the circuit court’s decision granting the defendant’s motion to dismiss based on the statute of limitations and denying post-judgment motions, holding that the circuit court did not abuse its discretion denying the pro se plaintiff’s Rule 60 motion and also denying the defendants’ motion for sanctions, damages, and fees. (10-0)
Gray v. Johnson, 2023-CA-00339-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in an interpleader initiated by a bank over the proper “pay-on-death” beneficiary of a CD, holding that the designation was latently ambiguous but that extrinsic evidence supported the chancellor’s decision whcih was not an abuse of discretion and was not wrong or clearly erroneous. (6-4-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion; Greenlee concurred in result only without separate written opinion)
Jackson County, Mississippi, v. Marcellus, 2023-CA-00111-COA (Civil – State Boards & Agencies) Reversing the circuit court’s decision that had reversed the decision of the Board of Supervisors denying a request to reclassify property from residential to commercial, holding that the Board’s decision was not arbitrary and capricious that the owner had not proved a change in character and a public need by clear and convincing evidence. (9-0: Lawrence did not participate)
Bain v. State, 2023-CP-00206-COA (Civil – PCR) Reversing dismissal of PCR motion for lack of jurisdiction, holding that the petitioner did not need to obtain permission from the Supreme Court to file his petition. (9-1-0: Emfinger concurred in part and in the result without separate written opinion)
Green v. State, 2023-CP-00448-COA (Civil – PCR) Affirming the dismissal of a PCR motion, holding that the circuit court did not err in finding that the motion was barred as successive and that none of the exceptions applied, and that they lacked merit. (8-2-0: McCarty and Emfinger concurred in part and in the result without separate written opinion.)
Weaver v. Ross, 2022-CA-00426-COA (Civil – Torts) Affirming a judgment in favor of a car restorer against a man who initiated litigation by suing for alleged negligent restoration after a jury trial, holding that the trial court did not err in excluding medical records related to the owner’s blood pressure for lack of authentication and an invoice on allegedly comparative restoration, that the verdict on IIED was supported by sufficient evidence and not against the overwhelming weight of it, and that the trial court did not abuse its discretion in awarding attorney’s fees. (6-4-0: McCarty specially concurred, joined by Greenlee, Westbrooks, McDonald, Lawrence, and Smith; Wilson concurred in part and in the result, joined by Lawrence, McCarty, and Emfinger and joined in part by Greenlee, Westbrooks, McDonald, and Smith.)
NOTE – McCarty’s special concurrence has precedential effect. You should read it for its discussion and clarification of the fact that claims for IIED cannot stem from the distress caused solely by litigation.
Wilson’s concurrence was one full vote short of precedential effect, but was joined in part by four additional judges. Wilson joined Parts I and II of the majority opinion, but parted ways over the analysis of the attorney’s fees issue. Wilson agreed the judgment should be affirmed because the challenge to the award of attorney’s fees was procedurally barred, but would have reversed if it was not barred.
PRACTICE POINT – Wilson’s concurrence contains a good reminder of the importance of reviewing the record on appeal for completeness. Don’t assume the circuit clerk included everything you designated.
Other Orders
DeJohnette v. State, 2022-KA-00249-COA (denying rehearing)
Gilmer v. State, 2022-KM-00257-COA (denying rehearing)
Hutson v. Hutson, 2022-CA-00569-COA (denying rehearing)
Daly v. Raines, 2022-CA-00600-COA (denying rehearing)
The Mississippi Court of Appeals handed down nine opinions yesterday with something for just about everyone. Read on to find yours.
Estate of Douglas v. Green, 2022-CA-00365-COA (Civil – Wills, Trusts & Estates) Affirming on direct appeal and cross appeal in an ongoing estate saga, holding that the argument that interest should have been awarded on the return of insurance proceeds was procedurally barred, the limited award of attorney’s fees was within the trial court’s discretion, the trial court did not abuse its discretion in declining to order the return funds to a joint account, and the cross-appeal was procedurally barred because it did not provide any legal support. (9-1-0: Wilson concurred in result only without separate written opinion)
Stewart v. Stewart, 2022-CA-01122-COA (Civil – Domestic Relations) Affirming the chancellor’s decision on the father’s motion to modify or terminate child support, holding that the father’s obligation to pay for college under the PSA extended past the children turning 21. (10-0)
White v. White, 2022-CP-00823-COA (Civil – Real Property) Affirming in part and reversing in part a chancellor’s decision imposing a constructive trust and ordering the transfer of a parcel of property, reversing the chancery court’s order in limine restricting the defendant from proving affirmative defenses asserted in his answer to the initial complaint and vacating the final judgment imposing a constructive trust, while also affirming the chancery court’s determination that some of the defendant’s payments were voluntary but reversing the determination that all of the payments were voluntary. (8-2-0: Carlton and Wilson concurred in result only without separate written opinion)
Johnson v. State, 2022-KA-00920-COA (Criminal – Felony) Affirming conviction of one count of possession of methamphetamine and one count of trafficking Vyvanse, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence. (8-2-0: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion)
Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (Civil – Workers’ Comp) Affirming the MWCC’s decision denying benefits, holding that there was substantial evidence to support the MWCC’s finding that the claimant was a traveling employee but that he was not in the course of his employment when he was returning to work after a personal, unauthorized mid-week trip home. (6-4: Carlton dissented, joined by Lawrence, McCarty, and Smith)
Practice Point – This is a friendly reminder that “course and scope” is not the test for workers’ comp cases. The MWCA casts a wider compensability net than “course and scope.” Generally, compensation must be paid for injuries “arising out of and in the course of employment.” Miss. Code Ann. § 71-3-7.
Bell v. State, 2023-CP-00631-COA (Civil – Other) Affirming the circuit court’s denial of a petition for expungement, holding that the circuit court did not abuse its discretion because the petitioner failed to present evidence any evidence that he had been rehabilitated. (8-2-0: Lawrence and Smith concurred in result only without separate written opinion)
Nettles v. Nettles, 2023-CA-00041-COA (Civil – Domestic Relations) Affirming the chancery court’s decision granting the husband’s motion for involuntary dismissal, holding that the chancellor did not err in finding that the wife did not prove that she was entitled to a divorce based on habitual cruel and inhuman treatment by a preponderance of the evidence. (6-4: Carlton, Westbrooks, McDonald, and Lawrence dissented without seprate written opinion)
Loving v. MS Eye Care, P.A., 2023-CA-00566-COA (Civil – Personal Injury) Affirming summary judgment in a premises liability case, holding that there was no evidence that the chair the plaintiff fell backwards on was defective or unreasonably dangerous. (9-0: Wilson did not participate)
Blackwell v. Reed, 2022-CP-01037-COA (Civil – Domestic Relations) Affirming the chancellor’s decision denying the ex-husband’s ppetition to terminate or modify alimony, holding that the issues were procedurally barred for failure to cite legal authority or relevant parts of the record and that the appeal otherwise lacked merit. (10-0)
Other Orders
Kirk v. Newton, 2021-CT-00683-COA (denying motion to amend judgment)
Havercome v. State, 2022-CA-00391-COA (denying rehearing)
Phillips v. MDOC, 2022-SA-00392-COA (denying rehearing)
Agee v. State, 2022-KA-00994-COA (denying pro se “request to proceed with petition for rehearing” and dismissing pro se “request to proceed with petition for post-conviction relief”)
Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (denying rehearing)
Johnson v. State, 2022-CP-01186-COA (denying rehearing)
Lawson v. State, 2023-TS-01384-COA (dismissing appeal)
Gates v. State, 2024-TS-00074-COA (allowing appeal to proceed upon finding that show-cause response was well taken)
I’m back. Again. I would like to think I will go back and summarize the last few weeks that I have missed but that is probably water under the bridge at this point.Pressing forward, the Mississippi Court of Appeals handed down seven opinions today. These decisions cover custody, felonies, personal injury, unemployment, and zoning. Notably, two criminal convictions were reversed.
Patrick v. Patrick, 2021-CA-00891-COA (Civil – Custody) Affirming the chancery court’s denial of the mother’s petition for contempt and modification and granting the father’s motion for modification, holding that the issue of custody was clearly before the chancellor who properly determined that there was a material change in circumstances that adversely affected the children, conducted a proper Albright analysis, and was within his discretion to order a change in legal and physical custody. (8-1-1: McCarty concurred in part and in the result and McDonald concurred in part and dissented in part. Neither wrote.)
Allen v. State, 2022-KA-00419-COA (Criminal – Felony) Reversing convictions six counts of statutory rape, holding that the jury was not properly instructed as to the State’s burden of proof and remanding for a new trial. (9-1-0: McDonald concurred in result only without writing.)
Practice Point: The erroneous instruction was submitted by the defense, but the Court noted that the “invited-error doctrine” did not apply where the jury was not properly instructed on the elements of the crime. Here is the Court’s summary of the issues with the jury instructions:
Fletcher v. State, 2022-KA-00868-COA (Criminal – Felony) Affirming conviction of capital murder and sentence as habitual offender, holding that the trial court did not err when it failed to suppress the defendant’s statement to law enforcement officials. (10-0)
The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (Civil – Other) Affirming the circuit court’s decision denying an ordinance variance to repair a wall/fence that enclosed the petitioner’s property, holding that the petitioner did not waive its challenge to the city’s code interpretation but that the circuit court’s interpretation of the code provisions at issue were not erroneous. (10-0)
Carter v. C&S Canopy, Inc., 2022-CA-00730-COA (Civil – Personal Injury) Affirming summary judgment in favor of a driver and his employer in an auto-negligence case, holding that there was no evidence to support the plaintiff’s claim that the driver negligently continued to drive a “sluggish” truck on the interstate, that the defendants were negligent in their efforts to get the truck towed, that the location of reflective triangles was the proximate cause of the crash, that the defendant could have safely moved the disabled truck anywhere other than where he did, that the driver should have registered as a for-hire carrier, or that the employer negligently failed to train the driver.
Appellate Math Warning: None of us signed up for this.
Marshall v. State, 2022-KA-00541-COA (Criminal – Felony) Reversing conviction of first-degree murder, holding that the circuit court erred in denying the defense’s peremptory strikes of three jurors, holding that the defense provided valid, race-neutral reasons for the strikes. (10-0)
Cain v. M.D.E.S., 2023-CC-00188-COA (Civil – State Boards & Agencies) Affirming denial of claim for unemployment benefits, holding that the circuit court properly dismissed the claimant’s appeal of denial as untimely. (10-0)
Other Orders
Walker v. State, 2022-KA-00482-COA (denying rehearing)
Gregory Meridian Acquisition, LLC v. McFarland, 2022-CA-00580-COA (denying rehearing)
[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]
I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.
February 6, 2024
Porter v. State, 2023-CP-00091-COA (Civil – Other) Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county. (9-0: Smith did not participate)
Gilmore v. State, 2023-CP-00527-COA (Civil – PCR) Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions. (9-0: Emfinger did not participate)
Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract) Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement. (7-2: Westbrooks and McDonald dissented; Smith did not participate)
Practice Point – Cite the record early and often in your briefs:
Moates v. State, 2022-KA-01062-COA (Criminal – Felony) Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot. (10-0)
Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.
Other Orders
Gilbert v. State, 2021-KA-01265-COA (denying rehearing)
Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)
Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence. (9-1-0: McDonald concurred in part and in the result without separate written opinion)
Allen v. State, 2022-KA-00935-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter. (10-0)
Netherland v. State, 2022-CP-01236-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim. (10-0)
Brooks v. State, 2022-KA-01016-COA (Criminal – Felony) Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence. (8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)
EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies) Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review. (8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)
Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property. (10-0)
Wade v. State, 2022-CA-00370-COA (Civil – PCR) Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment. (6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)
Hunter v. State, 2022-CP-01269-COA (Civil – PCR) Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely. (10-0)
Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies) Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings. (3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)
Other Orders
Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)
Odom v. State, 2021-KA-00676-COA (denying rehearing)
Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)
Litton v. Litton, 2022-CA-00712-COA (denying rehearing)
Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)
Patel v. State, 2022-CA-00985-COA (denying rehearing)
Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)
Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)
Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)
Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)
Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)
Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)
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