Tag: Mississippi Court of Appeals

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

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