Tag: Mississippi Court of Appeals

Mississippi Court of Appeals Decisions of January 3, 2023

Happy New Year! The courts are back in action so I am too. The first hand down list of 2023 has four opinions from the Mississippi Court of Appeals. Two are personal injury cases, one is a custody modification case, and the other is a PCR case.

Mallard v. State, 2022-CA-00152-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the plaintiff’s right to a speedy trial was not violated and that a discrepancy in the sentencing order and transcript was a scrivener’s error not warranting reversal.
(10-0)

Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (Civil – Personal Injury)
Affirming judgment in favor of the defendant hospital after a bench trial in a negligence suit stemming from a fall while the plaintiff was get onto a medical transport bus, holding that the duty owed was the duty owed to an invitee and there was no evidence that the steps to the bus were not reasonably safe, that the decision was not against the weight of the evidence, that the trial court did not err in excluding testimony that the driver was in the habit of of being late, and that an objective person could not find the judge biased based on a comment she made while stepping down from the bench.
(7-2-0: Judge Westbrooks and Judge McDonald concurred in the result only without separate written opinion; Judge Lawrence did not participate)

Moreland v. Spears, 2021-CA-00714-COA (Civil – Custody)
Affirming modification of custody and visitation, holding that the chancellor did not abuse his discretion by awarding the mother sole legal custody, by restricting the father’s visitation, or by not finding the mother in contempt for withholding visitation during March 2020 while the COVID “stay-home order” was still active.
(10-0)

COVID AND THE LAW – The father argued that the mother should be held in contempt for withholding a visitation that was due to occur during the March 2020 COVID shutdown. The mother testified that she tried to set up alternate times but the father refused. The Court of Appeals held that the particular facts of this case supported the chancellor’s decision of no contempt:

Cornell v. MDHS, 2021-SA-00784-COA (Civil – Personal Injury)
Affirming in part and reversing in part summary judgment in favor of MDHS in a case alleging that MDHS placed the plaintiff in foster care with a know pedophile, holding that MDHS is statutorily immune from suit regarding the investigation and licensing of the foster parents’ home but reversing the grant of summary judgment on the issues of whether MDHS’s failure to report allegations of abuse and MDHS’s failure to conduct required visits were the proximate cause of continued abuse.
(8-2: Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes)

Other Orders

Edwards v. State, 2021-KA-00261-COA (denying rehearing)

Virden v. Campbell Delong, LLP, 2021-CA-00478-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of December 13, 2022

The Mississippi Court of Appeals handed down eight opinions today. There are several interesting criminal cases and a couple of PCR cases. But the two opinions that strike me as the most significant are a med mal case and a wills and estates case. The med mal decision reversed summary judgment for the hospital, holding that the layman’s exception to the usual expert witness requirement applied. The wills case addressed the effect of a decedent’s handwritten note forgiving a promissory note upon his death by “accident or sickness” after he died by suicide.

Barfield v. State, 2021-KA-00660-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder and denial of post-trial motions, holding that the evidence that the defendant was included in conversations leading up to the effort to conceal the victim’s body and was present (but did not physically participate) during those efforts was sufficient; that the trial court did not err in giving instructions on aiding and abetting, accomplice testimony, or the definitions of “conceal” and “participate,” or in refusing an instruction that the defendant had no duty to disclose the location of the body to the police; that the trial court did not err by allowing certain rebuttal testimony; that the trial court did not commit plain error in allowing testimony by State’s witnesses that they pleaded guilty to manslaughter and accessory after the fact.
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Smith v. State, 2021-KA-01104-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court erred in excluding the entirety of the defendant’s firearms expert’s testimony but that this error was harmless and that the verdict was not contrary to the weight of the evidence.
(8-2-0: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion)

Holliday Construction, LLC v. George County, Mississippi, 2021-CA-00667-COA (Civil – Contract)
Affirming trial court’s decision stemming from the County’s award of contract for hurricane debris cleanup to an out-of-state company, holding that the County’s award was illegal but not arbitrary and capricious; that the trial court had authority to allow the County to reject all bids, re-advertise, and allow re-bids for the work; and that the trial court did not err in denying the plaintiff’s compensatory damages claim since the plaintiff failed to show it was entitled to the original award of the contract.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Carlton concurred in part and dissented in part without separate written opinion)

Hornsby v. Hornsby, 2020-CA-01091-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions related to child support, holding that the chancellor did not abuse his discretion in denying the father’s request for reduction in child support, did not err in finding that the mother was not in contempt, and did not err in awarding the mother attorney’s fees.
(7-0: Judge Carlton, Judge Lawrence, and Judge Smith did not participate)

Siggers v. State, 2021-CP-01180-COA (Civil – PCR)
Reversing denial of PCR motion for lack of jurisdiction, holding that the plaintiff did not need to obtain permission from the Mississippi Supreme Court to file his PCR motion.
(10-0)

Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s dismissal of two complaints for collection on two promissory notes, holding that the chancellor did not abuse his discretion in finding that a handwritten note from the decedent stating that a $700,000 promissory note would be forgiven if he died by “accident or sickness” was a holographic codicil to his will or in ruling that his death by suicide was death by “sickness” because it was causally related to debilitating medical issues surrounding his prostate cancer.
(10-0)

Clark v. Vicksburg Healthcare, LLC, 2021-CA-00173-COA (Civil – Medical Malpractice)
Affirming in part and reversing in part the circuit court’s grant of summary judgment in favor of a hospital in a med mal case, holding that the layman’s exception to the typical expert requirement applied in this case where a nurse allowed a 10-day-old baby to fall to the floor and reversing the dismissal of that aspect of the suit, but affirming denial of the other med mal claims for lack of expert testimony.
(Judge Greenlee concurred in part (application of the layman’s exception) and dissented in part (he would have remanded with ruling on the remaining claims) joined by Chief Judge Barnes, Judge Westbrooks, Judge McDonald, and Judge Lawrence)

Practice Point – The Court of Appeals noted that the layman’s exception had not previously been extended to “falls” cases, but distinguished this case from other “falls” cases involving post-op or elderly patients.

Colenberg v. State, 2021-CA-00673-COA (Civil – PCR)
Affirming denial of motion for post-conviction collateral relief, holding that the circuit court did not err in ruling that the plaintiff failed to establish by a preponderance of the evidence that there was not sufficient factual basis for his guilty plea.
(5-4: Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge McCarty, Judge Emfinger; Judge McDonald did not participate)

Other Orders

Gardner v. Jackson, 2020-CA-01313-COA (denying rehearing)

Johnson v. State, 2021-KA-00571-COA (denying rehearing)

Phillips v. City of Oxford, 2021-CA-00639-COA (denying rehearing)

Guinn v. Claiborne, 2021-CP-00997-COA (denying rehearing)

Jones v. State, 2021-CP-01088-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (granting pro se appellant’s pro se motion to recall mandate)

Ross v. State, 2022-TS-00901-COA (denying appellant’s pro se motion to show cause and dismissing untimely appeal)

Hand Down List

Mississippi Court of Appeals Decisions of December 6, 2022

The Mississippi Court of Appeals wore me out with nine opinions today. There is something for just about everybody below including crimes, conservatorships, and contracts. One case includes a nightmare scenario where an order of dismissal was entered and the plaintiff’s attorney did not receive notice of it until well after the appeal deadline passed, and there is a special concurrence shining a beacon of hope for litigants who find themselves in this situation.

McLendon v. State, 2022-CP-00057-COA (Civil – PCR)
Affirming summary denial of a motion for post-conviction collateral relief, holding that a proper factual basis was shown as to each element of the offense during the guilty plea.
(10-0)

Davis v. State, 2021-KA-00759-COA (Criminal – Felony)
Affirming convictions of armed robbery and kidnapping, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial based on inadmissible testimony from the police chief that the defendant had been previously incarcerated for burglary.
(7-3-0: Judge McDonald specially concurred, joined by Chief Judge Barnes, Judge Greenlee, and Judge Westbrooks; Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in the result only without separate written opinion.

N0te – Here is how the trial court handled the inadmissible testimony:

Owens v. State, 2021-KA-00887-COA (Criminal – Felony)
Affirming conviction of burglary of a business, holding that the conviction was not against the weight of the evidence .
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Note – The dissent argued that the conviction was against the weight of the evidence and discussed the evidence that was presented. The dissent embedded into the opinion stills from surveillance videos that were shown to the jury was extremely helpful in understanding the evidence that was presented and that was being discussed.

State v. Hudson, 2021-KA-01232-COA (Criminal – Felony)
Dismissing the State’s appeal of a directed verdict of acquittal, holding that the appeal was not authorized by section 99-35-103(b) because the issues on appeal did not present the Court with a pure question of law.
(10-0)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (Civil – Contract)
Reversing summary judgment in favor of the defendants on a breach of contract and fraud complaint related to fees the defendant allegedly owed the plaintiff for recruitment services, holding that there was a fact dispute over the existence of a contract.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Atkins v. Moore, 2021-CA-00780-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s final judgment approving a conservator’s final accounting, holding that the conservator had not misspent or converted funds and that the plaintiff was not otherwise entitled to relief.
(9-1-0: Judge Westbrooks specially concurred, joined by Judge McDonald and joined in part by Judge McCarty)

Note – The Court of Appeals took issue with several aspects of the proceedings below, but found none warranted reversal. Here is the Court’s conclusion:

Another Note – This opinion cites a post by Jane Stroble Miller from Judge Larry Primeaux’s The Better Chancery Court Practice Blog, noting that it “provides a very helpful discussion on the need for ‘vouchers’ to support and accounting.” I fail to see a downside in favorably citing law blogs in judicial opinions.

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (Civil – Contract)
Dismissing the appeal in part and affirming in part, holding that the Court did not have jurisdiction to review the order granting the motion to dismiss where it was not timely filed because counsel did not receive notice of the judgment and dismissing that part of the appeal and affirming the denial of the plaintiff’s motion to reconsider.
(8-2-0: Judge McCarty specially concurred, joined by Judge Greenlee, Judge Westbrooks, Judge McDonald, Judge Lawrence, and Judge Smith; Judge Emfinger concurred in the result only without separate written opinion)

Practice Point – Judge McCarty’s special concurrence highlights a lifeline to litigants in the unfortunate situation of not receiving notice of an appealable judgment until after the deadline to file a notice of appeal:

Note – It is a credit to the appellee and appellee’s counsel for not arguing untimeliness under these circumstances at any point in the process.

DeSoto County v. Vinson, 2021-CC-00864-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of the DeSoto County Board of Supervisors’ approval of a landowner’s application to subdivide a residential lot, holding that the landowner’s failure to accompany the application with names of persons adversely affected or directly interested and their signatures approving the division violated section 17-1-23(4).
(8-1-1: Judge Emfinger concurred in the result only without separate written; Judge Wilson dissented)

Burchett v. State, 2021-KA-00776-COA (Criminal – Felony)
Affirming conviction of murder, holding that there was no evidence to supporting a lesser-included instruction on heat of passion manslaughter.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in part and dissented in part, joined in part by Judge McDonald)

Other Orders

Young v. Freese & Goss, PLLC, 2020-CA-01280-COA (denying rehearing)

Simpson County School District v. Wigley, 2021-CA-00009-COA (denying rehearing)

Boyd v. State, 2021-KA-00066 (denying rehearing)

Nguyen v. Bui, 2021-CP-00538-COA (denying rehearing)

McGilberry v. Ross, 2021-CP-01076 (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of November 29, 2022

The Mississippi Court of Appeals returned from Thanksgiving break with five opinions. Two cases are medical malpractice cases (one an appeal of summary judgment for lack of expert testimony and the other an appeal of a denied motion to compel arbitration). Two are criminal cases, and the other case is a custody case with cross motions for modification and a motion for contempt.

Davis v. State, 2021-KA-00908-COA (Criminal – Felony)
Affirming conviction of first-degree, deliberate design murder, holding that the trial court did not abuse its discretion in limiting the defense’s cross-examination of a detective to exclude testimony about other investigations and noting that the Confrontation Clause does not open the door to irrelevant testimony on cross-examination.
(10-0)

Mixon v. Berry, 2021-CA-00494-COA (Civil – Medical Malpractice)
Affirming summary judgment in favor of a doctor in a med mal case for lack of medical expert testimony, holding that summary judgment was proper because the plaintiff failed to produce sworn expert testimony to establish the applicable standard of care, breach, and proximate cause, and that the trial court did not err in not granting a 56(f) continuance that was not requested or in denying the motion for reconsideration.
(10-0)

Practice Point – Here is some useful black-letter law from this opinion:

Turnage v. State, 2021-KA-01229-COA (Criminal – Felony)
Affirming conviction of a high school teacher of two counts of sexual battery of a student, holding that there were no issues warranting reversal after reviewing appellate counsel’s Lindsey brief and independently reviewing the record.
(10-0)

Lamy v. Lamy, 2021-CA-00770-COA (Civil – Custody)
Affirming in part and reversing in part the chancery court’s rulings on competing complaints for modification and a motion for contempt, holding that the chancellor did not err in admitting evidence used by the GAL and attached to her report, did not err in classifying one agreed custody order as temporary but did err by interpreting that order as awarding sole physical custody to the mother, and did not err in not finding the mother in contempt.
(5-1-4: Judge McDonald concurred in part and in the result without separate written opinion; Chief Judge Barnes, Judge Westbrooks, and Judge McCarty concurred in part and in dissent in part without separate written opinion; Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Westbrooks, and Judge McCarty, and joined in part by Judge McDonald.)

Note – In response to the motion for contempt, the mother pleaded COVID in her explanation of why she kept the children during the father’s period of custody. The dissent didn’t buy the excuse:

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration in a wrongful death case, holding that the evidence in the record supported the trial court’s finding that the resident lacked the mental capacity to sign the nursing home’s arbitration agreement on the date of admission, that the resident’s daughter did not have authority to sign as his agent, and that the proof was sufficiently clear to affirm the trial court’s denial of the facility’s request for arbitration-related discovery.
(7-3: Judge Carlton dissented, joined by Judge Wilson and Judge Lawrence.)

Other Orders

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of November 22, 2022

The Mississippi Court of Appeals handed down six opinions before making a break for the turkey this week. There is a custody case reviewing a contempt order related to visitation rights, a civil asset forfeiture case, a previously-decided MTCA wrongful death case with a substituted opinion, a real property contract case with a claim by the would-be purchaser for specific performance or damages, and a couple of PCR cases.

Kay v. Kay, 2021-CA-01377-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancery court’s contempt ruling, holding that there was substantial credible evidence supporting the finding of the father willfully failed to comply with visitation guidelines and denied the mother visitation rights but reversing the part of the order directing the children to report to jail if they chose not participate in future scheduled visitation with their mother.
(10-0)

McDonald v. State, 2021-CP-01040-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the circuit court had jurisdiction to resentence the plaintiff and that there was no merit to the claims that the guilty plea was not voluntary or for ineffective assistance of counsel.
(1o-0)

Parker v. State, 2021-CP-01102-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the plaintiff did not overcome the time bar, there was no merit to his claims that he was wrongly sentenced as a habitual offender, and the illegal-sentence claim was waived by meritless anyway.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Forty-One Thousand Eighty Dollars v. State, 2021-CA-00692-COA (Civil – Other/Civil Asset Forfeiture)
Affirming seizure of case, holding that the funds were subject to forfeiture, the argument that the K-9 alerted to the cash because the case was contaminated was unpersuasive, and that the forfeiture was not grossly disproportionate.
(8-1-0: Judge Westbrooks concurred in the result only without separate written opinion; Judge Emfinger did not participate.)

Simmons v. Jackson County, Mississippi, 2020-CA-01014-COA (Civil – Wrongful Death)
Denying a motion for rehearing but substituting a new opinion, but still affirming circuit court’s ruling that the county bore no responsibility for a driver’s fatal accident that occurred when his vehicle left the road and struck a culvert, holding that there was sufficient evidence to support the circuit court’s finding that the driver’s negligence in failing to exercise vigilant caution as he drove through a work zone was the sole proximate cause of the accident.
(7-3: Judge Westbrooks dissented, joined by Judge Carlton and Judge McDonald.)

NOTE – Since the old opinion is no longer available, I am not sure what changed. Apparently what I took away as the core holding did not change because my prior summary still seems to fairly characterize the opinion.

Haidar v. Margetta, 2021-CA-00683-COA (Civil – Contract)
Reversing the chancery court’s dismissal of a purchaser’s claim for specific performance or damages after the seller refused to honor the contract after the initial closing date passed, holding that time is not automatically of the essence in real estate transactions and there was no evidence in the record to establish that time was of the essence here.
(6-1-3: Judge Westbrooks concurred in part and in the result without separate written opinion; Judge Greenlee dissented, joined by Chief Judge Barnes and Judge Carlton, and joined in part by Judge Westbrooks)

Other Orders

Murry v. State, 2020-KA-01363-COA (denying rehearing)

Wilson v. Lexington Manner Senior Care, LLC, 2021-CA-00072-COA (denying rehearing)

Wilson v. City of Greenville, 2021-CA-00316-COA (denying rehearing)

White v. White, 2021-CP-00333-COA (denying rehearing)

Beasley v. State, 2021-CA-00653-COA (denying rehearing)

Mitchell v. MDES, 2021-CC-00795-COA (denying pro se motion for rehearing as untimely)

Norwood v. State, 2021-CA-00802-COA (denying rehearing)

Patrick v. State, 2022-TS-00683-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of November 1, 2022

The Mississippi Court of Appeals kicked off November with eight opinions. There are two domestic cases dealing with custody and divorce, a personal injury case adjacent to a workers’ comp claim with a statute of limitation issue, two reversals in administrative cases (MDES and MDHS), two PCR cases, and one criminal case.

Jarvis v. State, 2021-CP-00930-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the plaintiff’s guilty plea waived his defective-indictment claim based on alleged insufficiency in the State’s evidence and that his ineffective assistance claim lacked merit.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion.)

Blagodirova v. Schrock, 2020-CA-01162-COA (Civil – Custody)
Affirming in part and reversing in part a chancellor’s child-custody modification order, holding that the chancery court manifestly erred by finding an adverse effect on the child, did not err in denying attorney’s fees, and did not abuse its discretion in denying a motion to compel completion of a financial disclosure statement.
(4-2-4: Judge Emfinger concurred in part and in the result without separate written opinion; Judge McCarty concurred in the result only without separate written opinion; Judge Carlton concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Greenlee, and Judge Smith.)

Baughman v. Baughman, 2021-CA-00074-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on an appeal and cross-appeal from a divorce proceeding, affirming denial of the ex-husband’s claim for separate maintenance, affirming the denial of divorce on the grounds of adultery, and reversing the denial of divorce on the ground of habitual cruel and inhuman treatment.
(5-4-0: Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson, Judge Greenlee, and Judge Lawrence concurred in the result only without separate written opinion; and Judge Carlton did not participate.)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (Civil – Personal Injury)
Affirming dismissal of certain claims as barred by the statute of limitations, holding that the plaintiff’s claims against a third-party (not the Employer, Carrier, or TPA) arising from the utilization review process in the course of his treatment for a workers’ comp injury were barred by the three-year statute of limitations.
(9-0: Judge Emfinger did not participate.)

NOTE – A critical aspect of this decision was that the lawsuit did not arise from the denial of workers’ comp benefits:

Bowman v. State, 2020-KA-01371-COA (Criminal – Felony)
Affirming conviction of second-degree murder and tampering with evidence, holding that the trial court did not err in allowing the state medical examiner to testify about the cause and manner of death, in denying motions to suppress evidence seized at the defendant’s Mississippi property and in his vehicle in Utah, in denying a flight-evidence motion in limine and giving a flight-evidence jury instruction, or in refusing the defendant’s request for additional circumstantial evidence instructions, and that the convictions were not against the overwhelming weight of the evidence and were based on sufficient evidence.
(7-2-0: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Smith did not participate.)

MDHS v. Reaves, 2021-SA-01133-COA (Civil – State Boards and Agencies)
Reversing the chancery court’s order directing MDHS to reimburse the plaintiff for past child-support payments, holding that reimbursement was improper because a noncustodial parent cannot recover the child-support payments he made on behalf of his child.
(7-3: Judge McDonald concurred in part and in the result without separate written opinion; Judge Wilson and Judge Westbrooks concurred in result only without separate written opinion.)

Wallace v. State, 2021-CP-01149-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second PCR petition, holding that the court did not err when it was not persuaded that the guilty plea lacked a factual basis and was involuntary, that the indictment was defective, or that counsel was ineffective.
(9-1-0: Judge Wilson concurred in the result only without separate written opinion.)

Vector Transportation Co. v. MDES, 2021-CC-00576-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s judgment affirming the MDES Board of Review’s determination that an employee was entitled to unemployment benefits, holding that the employer met its burden of proof to show that the employee’s termination was for misconduct.
(6-3: Judge McDonald concurred in part and dissented in part; Judge Westbrooks dissented, joined by Judge Wilson and joined in part by Judge McDonald; Chief Judge Barnes did not participate.)

Other Orders

Simpson v. State, 2021-KA-00075-COA (denying rehearing)

Terpening v. F.L. Crane & Sons, Inc., 2021-CA-00544-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of October 25, 2022

The Mississippi Court of Appeals handed down six opinions today. There are four criminal cases including one with an interesting issue that arose when only eleven jurors were polled about the verdict. There is also a termination of parental rights case and a PCR case.

Braziel v. State, 2021-KA-00603-COA (Criminal – Felony)
Affirming conviction of burglary upon receipt of a Lindsey brief and in the absence of a pro se brief, holding that there were no arguable issues on appeal.
(9-0: Judge Smith did not participate.)

C.P. v. Lowndes County Dept. of Child Protection Services, 2019-CA-01739-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision terminating parental rights of both natural parents, holding that there was clear and convincing evidence supporting the termination and that reunification efforts were not required, that the GAL’s efforts were “suboptimal” but harmless because there was other sufficient evidence, that it was error to not inform the parents of their rights at the outset of the bearing but it was harmless since the parents were represented and exercised their rights, and that the court did not commit reversible error adopting CPS’s proposed order verbatim without specific findings of fact.
(6-4-0: Judge Wilson and Judge McCarty concurred in part and in the result without separate written opinion; Judge Westbrooks and Judge Lawrence concurred in the result only without separate written opinion.)

Maye v. State, 2020-KA-00100-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by refusing a heat-of-passion manslaughter instruction where the defendant denied killing the victim and there was no evidence to support the instruction and holding that there was no error in admitting a gruesome photo that had probative value.
(6-3: Judge McDonald and Judge Lawrence concurred in part and in the result only without separate written opinion; Judge Westbrooks concurred in result only without separate written opinion.)

O’Quinn v. State, 2021-KA-00534-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that there was no merit to the defendant’s argument that his trial counsel was ineffective for failing to object to multiple instance of hearsay.
(9-1-0: Judge Westbrooks concurred in the result only without separate written opinion.)

ASIDE – The opinion provides a colorful description of events that unfolded in the parking lot immediately after the robbery. It reads like a scene from Raising Arizona, complete with a two-year-old in the getaway car. Here is a portion:

Price v. State, 2019-KA-01890-COA (Criminal – Felony)
Affirming conviction of first-degree murder, two counts of attempted first-degree murder, and possession of a firearm by a felony, holding that the conviction was supported by sufficient evidence and not against the overwhelming evidence, that the defendant could not complaint on appeal about the denial of a motion he opposed at trial, that ineffective assistance claims were denied without prejudice, that the defendant waived arguments that the trial judge should have recused, that there was no error in several jury-related issues including the trial court’s failure to poll all 12 jurors that was cured by retroactively polling the juror at an evidentiary hearing order by the Court of Appeals.
(7-3: Judge McDonald dissented, joined by Judge Westbrooks and joined as to Parts I and II by Judge McCarty. The dissent took issue with the notion that the trial court’s failure to poll all 12 jurors could be cured on remand by a supplemental hearing.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Denying motion for rehearing, withdrawing original opinion, and substituting this modified opinion affirming the denial of a PCR motion, holding that the plaintiff was procedurally barred by res judicata and without merit and that the trial court did not abuse its discretion in refusing to consider evidence of a potential defense for the plaintiff’s 1994 conviction in sentencing him for his 2011 felony evasion.
(5-4: Judge McCarty concurred in part dissented in part; Judge McDonald dissented, joined by Chief Judge Barnes, and Judge Westbrooks, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

Other Orders

Ford v. State, 2020-KA-00278-COA (dismissing untimely pro se motion for rehearing)
Garlington v. State, 2020-KA-00392-COA (denying rehearing)
Towns v. Panola County Board of Supervisors, 2020-CA-01364-COA (denying rehearing)
Skinner v. State, 2021-CA-00080-COA (denying rehearing)
Robinson v. State, 2021-CP-01215-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of October 18, 2022

We got five opinions today from the Mississippi Court of Appeals. There are two chancery cases, one dealing with termination of parental rights and another dealing with an appeal from a judgment of divorce, distribution, and child support. There is an appeal of a summary judgment in a slip and fall case, an unsuccessful appeal from a default judgment, and a criminal case challenging the admissibility of witness testimony.

Middlebrook v. Fuller, 2021-CA-00590-COA (Civil – Custody)
Affirming the chancery court’s judgment adjudicating paternity and terminating parental rights, holding that there was clear and convincing evidence to terminate parental rights and that the chancellor did not err in making that determination contrary to the GAL’s recommendation.
(9-1: Judge Westbrooks concurred in part and dissented in part without written opinion.)

Hill v. Central Sunbelt Federal Credit Union, 2021-CA-00833-COA (Civil – Personal Injury)
Affirming the circuit court’s decision granting summary judgment dismissing a slip and fall case, holding that rainwater on a porch did not constitute a dangerous condition where it was actively raining, surveillance video showed that water was not pudding or accumulating on the porch, and there was no evidence of other falls.
(7-1-1: Judge Westbrooks concurred in the result only without separate written opinion; Judge McDonald concurred in part and dissented in part without separate written opinion; Judge Smith did not participate.)

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (Civil – Real Property)
Affirming the trial court’s denial of the defendant’s motion to set aside entry of default, holding that the inadvertence by the defendant’s registered agent was not a legitimate explanation justifying the default and that the trial court did not abuse its discretion in determining that the defendant had not presented a sufficient colorable defense.
(10-0)

Davis v. State, 2021-KA-00593-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm, holding that a witness’s testimony that she saw the defendant with a firearm weeks before the incident was properly admitted and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Green v. Green, 2021-CP-01167-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on appeal from the chancery court’s judgment in a divorce case, holding that the appellant waived her right to challenge the merits of her divorce because she failed to appear at the hearing on the merits, that she waived that issue of distribution of marital assets by failing to cite legal authority to support her claims on appeal, but reversing and remanding for the chancellor to make specific findings of fact and conclusions of law consistent with Ferguson and to issue written findings concerning the reasonableness of the amount of child support.
(8-2: Judge McCarty concurred in part and dissented in part, joined by Judge Greenlee -“If there is ever a case for waiver, this is it.”)

Other Orders

Roberson v. State, 2020-CA-01208-COA (denying rehearing)
Siggers v. State, 2021-CP-00985 (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of October 11, 2022

I did not post summaries last week because was out of town all week. I plan to do a post summarizing last week’s decisions at some point, but today is not that day because the Court of Appeals just handed down nine more opinions.

Today was a big day for Rule 4 and for workers’ comp, with two decisions for each of those subject areas. One of the workers’ comp decisions has a significant amount of analysis of the issue of whether the claimant overcame the presumption of no loss of wage-earning capacity. The other workers’ comp decision provides some clarity (and teeth) to the affirmative defense of intoxication. Additionally, we learned today that you should not white-out the defendant’s name on a summons after it is issued, write the name of the defendant to be served over the white-out, and then serve that altered summons on your defendant. There is also a divorce case dealing with child support, several criminal cases, and a lone PCR case.

Carnley v. State, 2021-KA-00438-COA (Criminal – Felony)
Affirming conviction of rape, declining to reverse based on the exclusion of the victim’s prior inconsistent statement because no proffer was made and holding there was no error in the admission of expert testimony, that the defendant’s trial counsel was not ineffective, that the jury was properly instructed to continue its deliberation in lieu of a Sharplin instruction, and that the trial court did not commit cumulative error.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Wharton v. State, 2021-CA-00136-COA (Civil – Other/Civil Procedure)
Reversing a default judgment on a civil asset forfeiture petition, holding that the State failed to “strictly” comply with the Rule 4 requirements for service by publication, that the respondent did not waive the defense of insufficiency of service of process by failing to plead it in his answer because the answer was filed after the entry of default, and that the case should be remanded to give the State an opportunity to show good cause for failing to serve process before the statute of limitations expired.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion and Judge Emfinger did not participate.)

NOTE 1– There is a lot of civil and appellate procedure in this opinion (Miss. R. Civ. P. 4, 55; Miss. R. App. P. 2, 31). The appellate procedure ruling was interesting because the appellant missed his briefing deadline, but the Court of Appeals held that he should have been afforded 14 days to correct this “deficiency” and since he filed two days late he was within that window. This is interesting, but not a maneuver I plan to attempt.

Note 2 – I also want to point out this holding that although it is a fact-bound holding, these are facts one could find oneself bound up in.

Howard Industries v. Hayes, 2021-WC-00694-COA (Civil – Workers’ Comp)
Affirming the MWCC on direct appeal and cross appeal, holding that there was substantial evidence to support the Commission’s award of sanctions against the Employer’s counsel for attempting to mislead the Commission, the Commission’s finding that the claimant had overcome the presumption of no loss of wage-earning capacity and awarding permanent disability benefits for her 2007 injury, and the Commission’s award of 38% industrial loss of use of her right upper extremity for her 2015 injury.
(5-4: Judge Wilson concurred in part and dissented in part (on the sanction issue), joined by Judge Greenlee, Judge McCarty, and Judge Smith. Judge Emfinger did not participate.)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that the claimant was not entitled to benefits based upon the affirmative defense of intoxication, holding that the Employer’s payment of benefits did not estop the Employer from asserting the intoxication defense that was pleaded in the answer and that the very presence of marijuana in the claimant’s system raised the presumption of intoxication.
(10-0)

PRACTICE POINT – This case seems to answer a question that has lingered since the MWCA was amended to add the intoxication defense about what the effect of a positive drug test that does not give any indication of the degree of intoxication. In this case, the Court of Appeals decisively that any amount of intoxication triggers the presumption. A claimant can still seek to overcome that presumption, but based on the Meek decision a claimant cannot overcome the presumption by pointing to a lack of proof of the level of marijuana in the claimant’s system.

Ponder v. Ponder, 2020-CA-01196-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor did not err or abuse his discretion in awarding child support retroactive to a date prior to the filing of the petition for modification but holding that there was no legal basis for an award of attorney’s fees against the father for failing to comply with an agreed order.
(9-1-0: Judge McDonald concurred in part and in the result without separate written opinion.)

Villareal v. State, 2021-CP-00440-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the defendant’s sentence was not illegal.
(9-0: Judge Lawrence did not participate.)

Carruthers v. State, 2021-KA-00654-COA (Criminal – Felony)
Affirming conviction of meth trafficking as subsequent offender in possession of a firearm near a church and possession of firearm by felon, holding that the defendant did not receive ineffective assistance of counsel for alleged failures to object at various points in the trial or for alleged failure to investigate or for alleged failure to stipulate to a prior felony to keep evidence of the prior felony.
(7-2-0: Judge McCarty concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion.)

Arrington v. Anderson, 2021-CA-00233-COA (Civil – Personal Injury)
Affirming dismissal of two identical negligence lawsuits, holding that a summons that was altered after issuance to change the name of the party to be summonsed to the defendant’s name and then served on the defendant was not valid service of process, that since process was not served the statute of limitations had expired the first lawsuit, and that the second lawsuit was not a “refiling” of the first since it was filed while the first suit was still pending.
(8-2-0: Judge Wilson and Judge McDonald concurred in result only without separate written opinion.)

Daniels v. State, 2021-KA-01067-COA (Criminal – Felony)
Affirming conviction of two counts of armed robbery, two counts and aggravated assault, one count of house burglary, and one count of grand larceny, holding that the circuit court did not err in telling the jury panel that the defendant was charged as a habitual offender or in denying the defendant’s motion for a mistrial and holding that there was no abuse of discretion in admitting evidence about the defendant’s apprehension, arrest, and felony charges that immediately followed the activities for which he was convicted in this trial.
(8-2-0: Judge Wilson and Judge Emfinger concurred in the result without separate written opinion.)

Other Orders

Short v. State, 2021-KA-00499-COA (denying rehearing)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (denying rehearing)
Watkins v. State, 2021-CP-01301-COA (granting appellant’s pro se motion for leave to file an out-of-time brief)
Young v. State, 2022-CP-00141-COA (denying State’s motion to dismiss appeal)

Hand Down List

Mississippi Court of Appeals Decisions of September 27, 2022

The Mississippi Court of Appeals handed down nine opinions today (and one off-cycle opinion last Thursday). There are several criminal cases (including one with a “marijuana made me do it” defense), a real property case, a lawyer money-fight case, a workers’ comp case, a domestic case, and a couple of PCR cases.

Clemts v. State, 2021-KA-01013-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the verdict was not against the overwhelming weight of the evidence which included testimony that the defendant, the victim, and others were in an argument and the victim grabbed the defendant in an effort to get the defendant to leave the house and the defendant “wheeled around” and stabbed the victim in the abdomen.
(10-0)

Edwards v. State, 2021-KA-00261-COA (Criminal – Felony)
Affirming conviction of second-degree murder and the circuit court’s denial of the defendant’s post-trial motion, holding that there was no error in denying the defendant’s lesser-included culpable negligence manslaughter instruction because there was “no evidence in the record that ingesting marijuana caused the defendant to stab a man eight times.”
(10-0)

NOTE – Might need to consider keeping the reefer madness defense on the shelf.

Loblolly Properties LLC v. Le Papillon Homeowner’s Association Inc., 2021-CA-00767-COA (Civil – Real Property)
Affirming the chancery court’s grant of summary judgment in favor of a HOA over restrictive covenants on lots that were purchased after a foreclosure sale, holding that the bank that purchased the properties after foreclosure agreed that the property was bound by the covenants and the subsequent purchaser then obtained the property by warranty deed that provided that the conveyance was subject to restrictive covenants of record.
(3-3-4: Chief Judge Barnes, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson dissented, joined by Judge Greenlee, Judge Lawrence, and Judge Smith)

NOTE – Put this one on your cert watch list. A fractured, 3-3 majority in favor of affirming carried the day, but the four-judge dissent raised some big-picture issues with the majority opinion.

Hollis v. Acoustics, Inc., 2021-WC-01261-COA (Civil – Workers’ Compensation)
Affirming the MWCC’s ruling that the claimant did not sustain a compensable injury, holding that a injuries from a physical fight with racial slurs stemming from a disagreement regarding the relative merits of playing Christian rap versus country music at the worksite was not a work-related injury where the claimant also admitted that he willfully shoved the other person in a manner not necessary for self-defense.
(10-0)

Scott v. Rouse, 2021-CP-01029-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings on several divorce enforcement matters after the ex-husband faked his own death, was apprehended, and then (with the help of his mother) claimed his ex-wife had wrongful retained his property, holding that all issues were procedurally barred because they were either the subject of a prior timely judgment that had not been timely appealed or the pro se appellants had failed to designated an adequate record for their appeal.
(9-0: Judge Lawrence did not participate.)

Wess v. State, 2020-CP-00704-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion asserting an illegal sentence, holding that the plaintiff’s argument that his sentence was illegal because he was not given the opportunity to withdraw his guilty plea was without merit.
(6-3-0: Chief Judge Barnes and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Cooper v. State, 2021-CP-01004-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the “writ of habeas corpus” should have been denied because the plaintiff filed it in the circuit court of the county of incarceration (instead of the county of conviction) which lacked jurisdiction to hear the PCR motion.
(10-0)

Wooten v. State, 2021-KA-00737-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence for shooting her boyfriend, holding that the trial court did not abuse its discretion in allowing evidence that the defendant had previously stabbed her ex-husband because it was admissible to show that the shooting of her boyfriend was not an accident or mistake and that the trial court did not err in (1) denying a motion to continue because the defendant had not availed herself of the court’s “considerable powers” to compel the witness’s attendance, (2) sustaining the State’s objection to some of the defendant’s testimony about alleged threats the victim made a month before the shooting, and (3) not sending law enforcement to obtain a witness’s presence after defense counsel declined the trial court’s offer to issue a bench warrant.
(7-3-0: Judge Wilson and Judge Westbrooks concurred in part and in the result; Judge McDonald concurred in result only without separate written opinion.)

Virden v. Campbell Delong, LLP, 2021-CA-00478-COA (Civil – Contract)
Affirming the trial court’s grant of the defendant’s motion for declaratory judgment, holding that a former partner’s claim for a greater share of proceeds from a settlement he obtained while working for the firm was barred by a written agreement governing the withdrawal, termination, or retirement of any partner from the firm.
(5-5: Judge Wilson dissented, joined by Chief Judge Barnes, Judge Greenlee, Judge Lawrence, and Judge Emfinger.)

NOTE – Here is another one for cert-watch: a lawyer-fight over money and a 5-5 decision that leaves the trial court’s ruling in place.

Davis v. State, 2021-KA-00416-COA (Sept. 22, 2022) (Criminal – Felony)
Affirming conviction of felonious abuse of a vulnerable person, holding that the sufficiency and weight of the evidence was adequate to support the conviction and that the trial court did not err in refusing the defendant’s proposed jury instruction for the offense of simple domestic violence.
(4-1-5: Judge Greenlee concurred in part and in the result without separate written opinion; Chief Judge Barnes concurred in part and dissented in part, joined by Judge Wilson, Judge Westbrooks, Judge McDonald, and Judge Emfinger.)

Other Orders

Trotter v. State, 2020-CA-00094-COA (denying rehearing)
Thomas v. Boyd Biloxi, LLC, 2021-CA-00265-COA (denying rehearing)
McCarty v. State, 2021-KA-00418-COA (dismissing untimely pro se motion for rehearing)
Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (denying appellee’s motion for appellate fees; denying motion for rehearing)
Avery v. The University of Mississippi, 2021-CA-00471-COA (granting motion for correction or modification of the Court’s opinion)
Gilmer v. State, 2022-TS-00257-COA (denying State’s motion to strike notice of appeal as untimely)
Morgan v. State, 2022-TS-00287-COA (dismissing appeal as untimely)
Rutledge v. State, 2022-TS-00677-COA (finding good cause to suspend the appeal deadline so the appeal can proceed on the merits)

Hand Down List