Tag: Mississippi Court of Appeals

Mississippi Court of Appeals Decisions of September 20, 2022

The Mississippi Court of Appeals handed down nine opinions today and only one was PCR! There are three criminal cases (one of which reversed a conviction as to one count on a jury instruction issue). There are two MTCA cases (one reversing summary judgment in a med mal case and one reversing a bench trial judgment finding police-protection immunity), two divorce cases, and an involuntary commitment case.

Johnson v. State, 2021-KA-00571-COA (Criminal – Felony)
Affirming and part and reversing in part a conviction for burglary and automobile theft, holding that the conviction of burglary was supported by sufficient evidence and was not against the overwhelming weight of the evidence but reversing the conviction for auto theft because the jury was not properly instructed as to the value of the stolen vehicle. The case was remanded for retrial on the auto theft count.
(10-0)

Brock v. State, 2021-KA-00739-COA (Criminal – Felony)
Affirming conviction of possession of methamphetamine, holding that even if the defendant could prove that her counsel was ineffective she had not proven that but for such professional errors the result would have been different.
(10-0)

Guinn v. Claiborne, 2021-CP-00997-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision denying husband’s amended complaint for divorce, holding that the chancellor did not commit clear error in determining that the husband had failed to prove the elements for a divorce based on adultery or irreconcilable differences.
(10-0)

W.C. v. J.C., 2021-CA-00237-COA (Civil – Other)
Affirming chancellor’s decision setting aside an agreed order of involuntary commitment and dismissing the action after treatment was completed, holding (1) the agreed order was properly dismissed because the motion to set aside was not untimely, (2) the chancery court did not abuse its discretion in determining that the terms of the order had been substantively complied with, (3) evidence from an professional organization monitoring the treatment for professional licensure was admissible, (4) the chancellor did not err in ruling that the petitioner had no standing to object to the motion to set aside the agreed order, and (5) there was no ground for the chancellor to convene a hearing to “protect the interests of the minor children.”
(9-1-0: Judge Wilson concurred in result only without separate written opinion.)

Smith v. State, 2021-CP-00915-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR motion, holding that the plaintiff did not prove an exception to the statute of limitations, that the sentence was not illegal, and that the indictment was not defective.
(8-2: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion.)

German v. State, 2021-KA-00933-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the circuit court’s finding that the defendant was sane when the crime was committed was supported by substantial evidence and the jury’s finding was not against the overwhelming weight of the evidence, and that the defendant waived issues related to the reliability of a medical expert’s testimony by failing to object at trial.
(9-0: Judge Westbrooks did not participate.)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(10-0)

St. Andrie v. Singing River Health System, 2021-CA-00042-COA (Civil – Medical Malpractice/MTCA)
Reversing the circuit court’s grant of summary judgment dismissing the plaintiff’s independent negligence claim against the hospital on statute of limitations grounds, holding that the plaintiff’s claim that the hospital failed to protect the plaintiff from the doctor’s negligence arose out of the same conduct, transaction, or occurrence as the doctor’s negligence and therefore the independent negligence claims against the hospital related back to the date of the original complaint that asserted an independent negligence claim against the doctor and a vicarious liability claim against the hospital.
(7-2-0: Judge Greenlee concurred in result only, joined by Judge Emfinger and joined in part by Judge McDonald and Judge McCarty; Judge Lawrence did not participate.)

Phillips v. City of Oxford, 2021-CA-00639-COA (Civil – Personal Injury/MTCA)
Reversing the circuit court’s finding after a bench trial that the City was protected by police-protection immunity after an officer’s vehicle crossed an intersection against a red light and struck the plaintiff’s vehicle while the officer was responding to an emergency, holding that the facts of this case met the “exceptional circumstances” requirement for finding reckless disregard and that the officer acted with conscious indifference to the safety of the public and the certain parts of the police chief’s testimony were not credible.
( 5-4: Judge Lawrence dissented, joined by Judge Wilson, Judge Smith, and Judge Emfinger; Judge Greenlee did not participate.)

NOTE– The Court of Appeals declined the appellant’s invitation to adopt a “reckless disregard per se” rule and maintained the totality-of-the-circumstances analysis.

Other Orders

Ellis v. State, 2020-CP-00770-COA (denying rehearing)
Camphor v. State, 2021-CP-00048-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of September 13, 2022

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

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

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

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

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

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

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

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

Other Orders

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

Hand Down List

Mississippi Court of Appeals Decisions of August 30, 2022

The Mississippi Court of Appeals handed down eight opinions today. These decisions cover the MTCA, tax assessments, waiver of arbitration, a couple of criminal convictions, and a couple of PCR cases.

Belmer v. State, 2021-CP-00398-COA (Civil – Other)
Dismissing the plaintiff’s appeal from a decision of MDOC’s Administrative Remedy Program as moot because the plaintiff was released on parole during the pendency of the appeal and was not longer incarcerated.
(10-0)

Belmer v. State, 2021-CP-00410-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that it was procedurally barred and without merit.
(10-0)

NOTE– Yes, the first two opinions dealt with the same plaintiff. No typo this time.

Simpson County School District v. Wigley, 2021-CA-00009-COA (Civil – Personal Injury)
Reversing the circuit court’s judgment in an MTCA case against a school district alleging that the district failed to provide adequate supervision when children played tag while awaiting bus repairs, holding (1) that the plaintiff failed to provide sufficient evidence that the district proximately caused the injury that occurred during the course of what seems to have been a garden-variety game of tag and (2) that the plaintiff failed to prove that a failure to render aid caused the plaintiff’s damages
(6-3*: Judge Westbrooks concurred in part and dissented in part without separate written opinion; Judge Lawrence concurred in part and dissented in part, joined by Judge Westbrooks; Judge McCarty dissented, joined by Judge Carlton and in party by Judge Westbrooks and Judge Lawrence)

NOTE – The plaintiff argued that the district was liable for negligent supervision by failing to render timely and appropriate aid to the injured child, but the Court of Appeals noted the plaintiff presented no legal authority for such a duty and declined to rule on the issue of whether a duty existed since the causation element was lacking:

Wilson v. Lexington Manor Senior Care, LLC, 2021-CA-00072-COA (Civil – Contract)
Reversing the circuit court’s order compelling arbitration of a medical malpractice claim against a nursing home, holding that the nursing home waived arbitration by substantial invocation of litigation that included filing an answer with 38 defenses that did not include arbitration as a defense and filing a motion to dismiss and pursuing that motion to a ruling, all before filing a motion to compel arbitration.

NOTE – The nursing home argued that it did not find the arbitration agreement until after the motion to dismiss had been briefed and heard. But the Court of Appeals was not persuaded by this argument since the arbitration agreement had been in the nursing home’s possession the entire time.
(8-2-0: Judge Carlton and Judge Emfinger concurred in the result only)

McNair v. State, 2021-KA-01121-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the evidence was sufficient to support the jury’s verdict and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Perkins v. State, 2021-KA-00129-COA (Civil – Felony)
Affirming conviction of sexual battery and sentence as a non-violent habitual offender after the defendant’s counsel filed a Lindsey brief, holding that the one-page pro se brief denying the crime and making argument after declining to testify at trial did not reveal any basis for reversal.
(9-0: Judge Emfinger did not participate)

BBM Ventures, LLC v. Frierson, 2021-CA-00248-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s judgment affirming MDOR assessments for sales tax liability and for income tax liabilities, holding that the chancellor (1) did not err in ruling that the taxpayers had adequate notice and failed to appeal the sales tax assessment, (2) did not err in evaluating sales tax assessment that arguably did not account for personal use and donation of some inventory, (3) did not err in finding that the taxpayers failed to produce source documentation for the majority of their business expenses or affirming individual income-tax assessment, and (4) did not err in affirming the fraud penalty assessed in conjunction with one of the income-tax assessments.
(8-0: Judge Carlton and Judge McCarty did not participate)

Luckett v. State, 2021-CP-01248-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se PCR motion, holding that the plaintiff’s ineffective assistance of counsel and cumulative error claims lacked merit.
(9-0: Judge Emfinger did not participate)

Parker v. Ross, 2020-CA-01055-COA (denying motions for rehearing filed by five parties)

Finley v. PERS, 2021-SA-00089-COA (denying rehearing)

Smith v. Adams County Youth Court, 2021-CP-00196-COA (denying rehearing)

Pickle v. State, 2021-CP-00972-COA (denying rehearing)

Other Orders

Mississippi Court of Appeals Decisions of August 23, 2022

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

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

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

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

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

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

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

Other Orders

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

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

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

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

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

Hand Down List

Mississippi Court of Appeals Decisions of August 16, 2022

The Mississippi Court of Appeals handed down seven opinions today. There are three criminal cases that address jury instructions, improper prosecutorial argument, and the admissibility of a letter aimed at the credibility of a State’s witness. There is also a divorce case addressing issues several issues related to alimony, a case deciding whether the right to arbitration was waived, a case seeking to impose a constructive trust on land, and an unemployment case.

Vector Transportation Co. v. Mississippi Department of Employment Security, 2021-CC-00574-COA (Civil – State Board and Agencies)
Affirming the circuit court and MDES Board of Review’s finding that the claimant was entitled to unemployment benefits, holding that the circuit court’s determination that the employer failed to prove that the claimant was discharged for misconduct was not contrary to law, arbitrary or capricious, or not supported by substantial evidence.
(9-0: Chief Judge Barnes did not participate.)

Clay v. State, 2021-KA-00790-COA (Criminal – Felony)
Affirming conviction of uttering a forgery and sentence as a nonviolent habitual offender, holding that the circuit court did not err in refusing the defendant’s mistake-of-fact jury instruction considering all jury instructions read together.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion.)

Murry v. State, 2020-KA-01363-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding (1) that that the prosecutor made an improper “send-a-message” argument during closing but that absent the prosecutor’s improper argument the jury would have found the defendant guilty and (2) that the circuit court did not commit plain error in admitting photographs that the defendant did not object to. The Court of Appeals also declined to decide the defendant’s ineffective assistance of counsel claim and recognized that it was preserved for PCR.
(10-0)

NOTE – Here are the “send-a-message” comments that the Court of Appeals held “[w]ithout question . . . run afoul of the clear direction given by the highest appellate courts in our state and nation” and that the defendant’s attorney did not object to at trial:

Lewis v. State, 2021-KA-00736-COA (Criminal – Felony)
Affirming convictions of conspiracy and armed robbery, holding that the trial court did not err by excluding a letter the defendant sought to introduce that accused a witness of past instances of false accusations because it was hearsay and did not fall within an exception to the inadmissibility of hearsay.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)

Phang v. Phang, 2021-CA-00752-COA (Civil – Domestic Relations)
Affirming in part and reversing in part several aspects of the chancery court’s judgment of divorce, holding that the chancellor (1) did not err in the award of permanent alimony, (2) erred in not specifying what happened to the alimony obligation if the ex-husband predeceased the ex-wife, (3) erred in requiring the ex-husband to maintain an excessive life insurance policy naming the ex-wife as the beneficiary, (4) erred in ordering the ex-husband to provide annual proof of income to his ex-wife.
(10-0)

White v. White, 2021-CP-00333-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s dismissal of a son’s complaint against his mother seeking damages and to impose a constructive trust on land he had deeded his mother, holding that the circuit court did not err in ruling that the claim for damages was barred by the statute of limitations but did err to the extent it dismissed the claim to recover and impose a constructive trust because the 10-year statute of limitations had not run on those claims when the complaint was filed.
(10-0)

Note – There was a lengthy footnote to remand declaration, discussing the odd situation presented where the Court of Appeals was remanding to the Harrison County Circuit Court a claim seeking to impose a trust on land located in Pike and Lincoln County.

Purvis v. Mar-Jac Poultry MS, LLC, 2021-CA-00039-COA (Civil – Contract)
Affirming the circuit court’s decision granting the defendant’s motion to compel arbitration, holding that the defendant did not waive arbitration by refusing the plaintiff’s pre-suit arbitration demand or by filing a counterclaim contemporaneously with its motion to compel arbitration and holding that the arbitration provision requiring an arbitration demand within 120 days after notice of a claim did not and could not alter the three-year statute of limitations.
(6-1-2: Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Smith did not participate.)

Other Orders

Wofford v. State, 2020-KA-01341-COA (denying rehearing)

Adams v. State, 2020-KA-01383-COA (denying rehearing)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (denying rehearing)

Frost v. State, 2021-CA-00152-COA (denying rehearing)

Edwards v. State, 2021-KA-00259-COA (denying rehearing)

Carter v. Total Foot Care, 2021-CA-00610-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 9, 2022

The Mississippi Court of Appeals handed down five opinions today. There is one decision that turns on an appellate procedure issue, a workers’ comp decision, a real property decision addressing the lack of findings of fact and conclusions of law when a request was made under Rule 52, and two PCR cases.

Jones v. State, 2021-CP-01088-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion because it was barred as a successive motion and time-barred, holding that the plaintiff did not show that these bars did not apply to his claim.
(10-0)

Townsend v. State, 2021-CP-01091-COA (Civil – PCR)
Affirming denial of the plaintiff’s PCR motion, holding that the plaintiff had waived his ineffective assistance of counsel claim when he pleaded guilty, that the indictment was not facially defective, that a pre-sentence report was not required, that the plaintiff’s due process rights were not violated because of his guilty plea, and that the plaintiff’s rights were not violated for sentencing him as a habitual offender.
(10-0)

Thompson v. AAA Cooper Transportation, 2021-CP-00658-COA (Civil – Property Damage)
Affirming the circuit court’s judgment dismissing an appeal from county court for lack of appellate jurisdiction, holding that because the appellant failed to file a notice of appeal and pay the cost bond within the time provided he had not timely perfected his appeal.
(10-0)

Darty v. Gulfport-Biloxi Regional Authority, 2021-WC-00986-COA (Civil – Workers’ Compensation)
Affirming the MWCC’s decision denying the claimant’s motion to reinstate his claim as time-barred, holding that the claimant’s failure to timely request review of the AJ’s dismissal of the claim due to the claimant’s failure to respond to a status request barred the claim.
(10-0)

PRACTICE POINT – This result is not as harsh as it seems from this short summary. The status request was issued on January 24, 2017, which was apparently more than a year after prehearing statements were filed. The order of dismissal for failing to respond to the status request was entered on March 2, 2017. The twenty days to file a written request for review of that order passed, and then another three years passed before the claimant hired a new attorney who filed a motion to reinstate the claim.

Rebuild America, Inc. v. Colomb, 2021–CA-00213-COA (Civil – Real Property)
Reversing the circuit court’s judgment that had affirmed both the county court’s dismissal of an action for unlawful entry and detainer and denial of the plaintiff’s motion for findings of fact and conclusions of law, holding that the county court committed reversible error when it did not provide findings of fact and conclusions of law after a request was made under Miss. R. Civ. P. 52.
(4-2-4: Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Carlton, and Judge Wilson, and in part by Judge McDonald)

NOTE – Today’s unanimity streak was shattered in dramatic fashion with this decision. The disagreement between the majority and the dissent that interests me the most is whether Rule 52 applies at all. The majority held that it does and reversed because the county court did not make findings of fact and conclusions of law when it was asked to. The dissent argues in a footnote that Rule 52 does not apply:

Rule 52 states:

Maybe the dissent will bolster a cert petition and the Mississippi Supreme Court will weigh-in on this issue.

Other Orders

Beale v. State, 2020-KA-00614-COA (denying rehearing)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (denying rehearing)

Thompson v. State, 2020-CP-01236-COA (denying rehearing)

Stribling v. Youth Court of Washington County, Mississippi, 2021-CA-00007-COA (dismissing appeal sua sponte for lack of appealable judgment)

Porras v. State, 2021-CP-00052-COA (denying rehearing)

Barnes v. State, 2021-KA-00404-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 2, 2022

In five opinions handed down today, the Mississippi Court of Appeals tackled implied trusts, trespass to timber, hearsay exceptions, and more.

Bays v. State, 2021-KA-00244-COA (Criminal – Felony)
Affirming a conviction of one count of sexual battery by a person in a position of trust or authority, holding that it was error to admit testimony containing a hearsay statement by the 12-year-old victim under the 801(d)(1)(C) statement of identification hearsay exception but that the error was harmless in light of the overwhelming evidence supporting the guilty verdict and holding that the trial court did not abuse its discretion in denying the defendant’s untimely request to submit evidence of another perpetrator or in denying the defendant’s request to re-call the victim.
(9-1-0: no separate opinion)

Ainsworth v. Plunk, 2021-CA-00488-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s order requiring a father to transfer title of real property back to his two daughters, holding that the chancery court properly applied the remedy of an implied trust under the peculiar facts of this case where (1) the father deeded land to his daughters and reserved a life estate for himself prior to his upcoming marriage in case the marriage ended in divorce, which it did, (2) the father then told the daughters to deed the land back to him and he would execute a new deed where the daughters would be tenants in common with full rights to devise their half interest, (3) the daughters quitclaimed their interest back to the father, (4) and the father then said he would only deed back the land if one of the daughters gave up an African-American baby she had adopted.
(8-2-0: no separate opinions)

NOTE – In addition to its startling facts that would make a compelling movie, this opinion contains a helpful discussion of constructive trusts and resulting trusts, and the differences between the two that would not necessarily make a compelling movie.

Terpening v. F.L. Crane & Sons, Inc., 2021-CA-00544-COA (Civil – Personal Injury)
Affirming summary judgment in a wrongful death action against an employer stemming from a fatal collision involving its employee, holding that the employer was not vicariously liable for the employee’s negligence because the employee was driving home from a week at a remote job site in a personal vehicle when the accident occurred and thus was not in the course and scope of his employment.
(10-0)

NOTES – The Court of Appeals held that the circuit court did not err in declining to apply the workers’ comp “traveling employee doctrine” outside of the workers’ comp arena. Additionally, the Court of Appeals dropped this handy paragraph to cite when the opposing party’s argument relies on out-of-state authorities:

(Please disregard this if I am ever the opposing party citing out-of-state authorities.)

Nalls v. State, 2021-KA-00592-COA (Criminal – Felony)
Affirming convictions of attempted murder and possession of a firearm by a felon, holding that the trial court did not err in denying the defendant’s motion for JNOV because the verdict was not against the overwhelming weight of the evidence and then rejecting several arguments made in the defendant’s additional, pro se brief.
(10-0)

Green v. Poirrier Properties, L.L.C., 2021-CP-00704-COA (Civil – Real Property)
Affirming the chancellor’s decision in a timber-trespass case, holding that the chancellor’s finding that the defendant’s removal of timber constituted a willful act and the chancellor’s award of damages were supported by substantial evidence.
(8-2-0: no separate opinions)

Other Orders

Booker v. State, 2018-CA-00664-COA (denying rehearing)

Manuel v. State, 2020-KA-00711-COA (denying rehearing)

Bridges v. State, 2020-CA-00816-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of July 19, 2022

We are back in action! The Mississippi Court of Appeals handed down six opinions today after their summer break. These cover several appeals from criminal convictions, a termination of parental rights case, and an MTCA case with thorny statute of limitations computation, and PCR.

Bullock v. Mississippi Department of Child Protective Services, 2020-CA-00966-COA (Civil – Custody)
Affirming the judgment of the youth court terminating the plaintiff’s parental rights to her four children, holding that that the youth court’s decision based upon multiple, independently-sufficient statutory grounds was supported by clear and convincing evidence including evidence that one of the children had suffered severe physical, emotional, and mental abuse, and that this abuse of the one child was sufficient to support the termination of parental rights as to all four children. The Court of Appeals also held that there was no evidence that the GAL was unfair or biased.
(10-0)

Alvarado v. State, 2021-KA-00566-COA (Criminal – Felony/First-Degree Murder/Attempted First-Degree Murder)
Affirming conviction of first-degree murder and attempted first-degree murder, holding that the evidence of first-degree murder (that included surveillance footage of the defendant gunning down the victim in a gas station) and evidence of attempted first-degree murder (video showing the defendant exchanging gunfire with a second person after shooting the victim) was sufficient and that the verdict was not against the weight of the evidence.
(10-0)

Lopez v. State, 2021-CP-00331-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff’s guilty plead waived the alleged violation of his constitutional rights and that the plaintiff’s claims of ineffective assistance were waived and meritless.
(7-3-0: Judge Westbrooks concurred in part and in the result with separate written opinion, joined in part by Judge McDonald and Judge McCarty; Chief Judge Barnes concurred in result only without separate written opinion; Judge McDonald concurred in result only with separate written opinion, joined by Chief Judge Barnes.)

Keever v. The Board of Trustees for Mississippi Institutes of Higher Learning, 2021-SA-00036-COA (Civil – Personal Injury/MTCA/statute of limitations)
Reversing the circuit court’s dismissal of the complaint on statute of limitations grounds, holding that this, the plaintiff’s second lawsuit asserting an MTCA claim, was not barred by the statute of limitations because the statute of limitations was tolled during the pendency of the first lawsuit that was dismissed without prejudice (from the filing of the complaint to the issuance of the appellate mandate) and for another 95 days after a notice of claim for the second lawsuit was served. The Court of Appeals also held that a “stipulation of voluntary dismissal” of the first complaint after the defendants had filed answers was of no effect, that the complaint could not be dismissed based on the discretionary-function exemption, and that IHL is not entitled to a dismissal at this early stage.
(10-0)

Practice Point – Here is the timeline of key events, which my brain requires in order to process opinions like this:

  • March 8, 2013 – Alleged injury
  • March 3, 2014 – Plaintiff sent notice of claim
  • March 7, 2014 First Complaint filed (this complaint was dismissed by the circuit court for failure to comply with pre-suit requirements and the dismissal was appealed and affirmed by the MS Court of Appeals)
  • February 6, 2020 – MS Supreme Court denied cert
  • February 18, 2020 – Ineffective “Stipulation of Voluntary Dismissal” filed
  • February 18, 2020 – Notice of claim letters sent (this tolled the statute, which was already being tolled during the pendency of the first lawsuit, another 95 days)
  • February 27, 2020 – Appellate mandate issued
  • May 26, 2020 – Second lawsuit filed on the last possible day

And what would stressful, statute of limitations computation party be without the last day falling on a Saturday, followed by a legal holiday?

Garlington v. State, 2020-KA-00392-COA (Criminal – Felony/Sexual Battery)
Affirming the conviction of one count of sexual battery against a minor, holding that the evidence was sufficient to support a finding that the elements of the crime were proven and to allow the jury to infer that the abuse occurred within the time frame stated in the indictment despite an alleged variance in the dates in the indictment and the proof at trial; there was no error in allowing the minor victim’s out-of-court statements under the tender years exception; no error in allowing the State to amend the indictment; no error in overruling the defendant’s Batson challenges; no error in failing to allow evidence of alleged sexual misconduct of the minor victim’s father; no Confrontation Clause violation by admitting lab results without a witness from the lab testifying at trial; no error in prohibiting Defendant’s expert from referring to certain materials that he had relied upon but had not produced to the State; no error in precluded testimony from Defendant’s would-be character witness; no Brady violation in allowing a rebuttal expert to testify; and there was no error in omitting the time frame of the abuse from the jury instructions setting forth the elements of the crime.
(7-3-0: Judge Wilson, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion.)

NOTE – This is a 58-page, fact-intensive majority opinion.

Jenkins v. State, 2021-KA-00145-COA (Criminal – Felony)
Affirming conviction of trafficking at least 1kg of marijuana with intent to sell, holding that that was no Fourth Amendment violation in the circuit court’s denial of the defendant’s motion to suppress evidence obtained from search warrants for his house and vehicle or his motion and no error in denying the defendant’s motion to suppress his bank records even those records were improperly obtained via subpoena duces tecum.
(8-2-0: Judge Westbrooks concurred specially with separate written opinion, joined by Judge McDonald; Judge McDonald concurred in part and in the result without separate written opinion.)

Other Orders

Fluker v. State, 2021-CP-00162-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of June 28, 2022

The Mississippi Court of Appeals handed down eight opinions today covering a lot of territory without a single dissent. There is an appeal of summary judgment in a slip and fall case, the reversal of summary judgment in an MTCA case, a motion to compel arbitration case, two wills and estates cases, a criminal appeal, and a few PCR cases.

Siggers v. State, 2021-CP-00985-COA (Civil – PCR)
Affirming the circuit court’s dismissal of the plaintiff’s PCR motion, holding that though it was not a barred successive motion but that it lacked merit.
(10-0)

Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (Civil – Negligence/Premises Liability/Slip and Fall)
Affirming summary judgment in a premises liability case, holding that the circuit court did not err in granting summary judgment on the issue of breach where the plaintiff slipped in a puddle on the floor of a store but did not know how long it had been there and failed to prove that the store was responsible for the substance or had actual knowledge of the substance on the floor, or that the two minutes the substance had been on the floor gave the store constructive knowledge.
(10-0)

Practice Point – Here is the meat of the opinion’s reasoning on the constructive notice issue:

Towns v. Panola County Board of Supervisors, 2020-CA-01364-COA (Civil – Personal Injury/MTCA)
Reversing the circuit court’s finding that the County was entitled to “premises immunity” and “weather immunity” under the MTCA in a case where the plaintiff was injured when he drove into a culvert that had washed out, holding (1) that weather immunity did not apply because there was evidence that the County had knowledge that the culvert had deteriorated and thus weather was not the “sole” cause of the culvert washout and (2) that premises immunity did not apply because there was evidence that the condition on the premises was caused by the County.
(10-0) (Judge Emfinger concurred in part and in the result without separate written opinion)

Roberson v. State, 2020-CA-01208-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the decision was supported by substantial evidence and was not clearly erroneous.
(10-0) (Judge Westbrooks specially concurred, joined by Chief Judge Barnes, Judge McDonald, and joined by Judge McCarty in Part, urging more objective guidance for reevaluating recanted testimony.)

South Central Heating Inc. v. Clark Construction Inc., 2021-CA-00285-COA (Civil – Contract/Arbitration)
Affirming the circuit court’s order granting arbitration, holding that the moving party did not waive arbitration by including an alternative complaint for damages in the same pleading in which it moved to compel arbitration and stay the proceedings, applying for a default, responding to a motion for summary judgment filed on the arbitration issue, and responding to motion to file a third-party complaint.
(10-0) (Judge Westbrooks and Judge McDonald concurred in result only without separate written opinion.)

Practice Point – The Court of Appeals noted that at every turn the party seeking arbitration asserted and reserved the right to arbitration.

Additionally, if a party lets you off the mat on an entry of default after your answer to their motion to compel arbitration/complaint that they obtained after waiting six week, consider not fighting their motion to compel arbitration tooth-and-nail.

Taylor v. Tolbert, 2021-CA-00900-COA (Civil – Wills, Trusts, and Estates/Revocation by Destruction)
Affirming the chancery court’s application of the presumption of revocation by destruction, holding that the beneficiary under the will who petitioned to probate a copy of the will had not rebutted the presumption of revocation by destruction by clear and convincing evidence.
(10-0) (Judge Westbrooks concurred in result only without separate written opinion.)

McCarty v. State, 2021-KA-00418-COA (Criminal – Felony/Retroactive Joinder/Character Evidence)
Affirming convictions of aggravated assault, kidnapping, and rape, and conviction as a habitual offender to life imprisonment on each count to be served consecutively, holding that the defendant was not entitled to a new trial under the doctrine of retroactive joinder and that the defendant was not unfairly prejudiced by the admission of character evidence related to prior incidents with the victim. In response to arguments raised in the defendant’s supplemental pro se brief, the Court of Appeals held that the defendant was not due a new trial because of actual innocence, judicial misconduct, prosecutorial misconduct, or ineffective assistance.
(10-0)

Estate of Neill v. Earls, 2021-CA-00177-COA (Civil – Wills, Trusts, and Estates)
Reversing the chancellor’s order instructing the executor to revise an “executor’s deed” providing the for the transfer of the decedent’s property, holding that the language of the devise at issue was ambiguous and that the chancellor’s construction of the distribution was not supported by substantial evidence, and further holding that evidentiary record was insufficient to determine the intent of the testator so the case was remanded to allow the parties to provide additional extrinsic evidence of intent.
(9-0) (Judge Lawrence concurred in result only without separate written opinion. Chief Judge Barnes did not participate.)

Other Orders

Wall v. Wall, 2020-CA-01182-COA (denying rehearing)
Pujol v. State, 2022-TS-00024-COA (dismissing appeal as untimely for lack of appealable judgment)
Morgan v. State, 2022-TS-00298-COA (dismissing appeal as untimely for lack of appealable judgment)

Hand Down List

Mississippi Court of Appeals Decisions of June 21, 2022

The Mississippi Court of Appeals handed down six opinions today. Trial courts and appellees ran the table getting affirmed in all six cases. The opinions include resolution of appeals related to adverse possession, easements, custody, wrongful termination, PCR, and child support.

Jackson v. Mullins, 2021-CP-00495-COA (Civil – Torts)
Affirming summary judgment dismissing a three-ring-circus claims filed by a divorcee against the chancery court master who presided over his divorce case, together with a Mississippi Bar employee and the chairman of the Bar’s Committee on Professional Responsibility who handled a bar complaint the plaintiff filed against the special master, and an MDHS employee, holding that the trial judge who granted summary judgment was not biased and that the special master and the Bar personnel were immune from suit.
(10-0.)

Franco v. Ferrill, 2021-CA-00053-COA (Civil – Real Property/Adverse Possession)
Affirming the chancellor’s rulings in a fact-intensive adverse possession suit, holding that the record supported the chancery court’s findings that (1) the plaintiffs adversely possessed the property, (2) the plaintiffs have proved a prescriptive easement to a lake, (3) the plaintiffs were entitled to $5,000 in damages for trespass and property damage, (4) the defendants must remove a fence of pay for fence removal, and (5) a trespass claim filed by one defendant should be denied.
(Judge McCarty concurred in part and in the result, joined by Judge Lawrence.)

Stuckey v. Stuckey, 2020-CA-00848-COA (Civil – Custody)
Affirming the chancellor’s decision modifying a custody agreement, holding that the record supported (1) the chancellor’s determination that there has been an adverse, material change in circumstances; (2) the chancellor’s weighing of the Albright factors to conclude that primary physical custody should be changed from the mother to the father; (3) the chancellor’s decision modification of child support; and (4) the chancellor’s order requiring the mother to undergo quarterly drug testing.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Wilson concurred in the result only without separate written opinion.)

Leland School District v. Brown, 2021-CA-00157-COA (Civil – Contract/Wrongful Termination)
Affirming on direct appeal and cross-appeal the chancellor’s ruling in a wrongful termination claim, holding (1) that the chancellor properly denied a motion to dismiss for lack of jurisdiction, (2) that the chancellor properly found that the school board’s decision upholding the plaintiff’s termination was not supported by substantial evidence and was arbitrary and capricious, and (3) that the chancellor did not err in denying attorney’s fees.
(10-0.)

Brumfield v. State, 2020-CP-01271-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff did not meet his burden in challenging the timeliness of his probation revocation hearing.
(10-0.)

Kelley v. Zitzelberger, 2021-CA-00119-COA (Civil – Domestic Relations/Child Support/Visitation)
Affirming the chancellor’s decisions pertaining to child support and visitation modifications, holding that (1) the chancellor did not abuse his discretion in denying the father’s request for child support reduction or in refusing to enforce the parties’ oral agreement to reduce child support, (2) the chancellor’s decision that the father was not entitled to have voluntary payments for extracurricular activities credited to his child support arrearage was not clearly erroneous, and (3) the chancellor’s decision modifying visitation was not manifestly wrong or clearly erroneous. The Court of Appeals also denied the mother’s motion for fees and damages under Miss. R. App. 38.
(Judge Emfinger concurred in part and in the result without separate written opinion.)

Other Orders

Mingo v. McComb School District, 2020-CA-00022-COA (denying rehearing)
Butler v. State, 2020-KA-00806-COA (denying rehearing)

Hand Down List