Tag: Mississippi Court of Appeals

Summaries of the Mississippi Court of Appeals opinions of April 12, 2022

The Mississippi Court of Appeals handed down two opinions today, one criminal and one civil. The criminal opinion affirmed a conviction, finding no merit on a litany of issues. The civil opinion affirmed summary judgment on a breach of contract claim based on a personal guaranty included in a credit application with a business’s supplier.

Barnes v. State, 2021-KA-00404-COA (Criminal – Felony/Hearsay/Jury Instructions/Rule 404(b))
Affirming conviction of two counts of fondling, holding (1) no error in jury instruction re: sufficiency of unsubstantiated/uncorroborated, but not contradicted/discredited, testimony of victim of a sex crime to support guilty verdict; (2) no error in allowing testimony by investigator “based on professional experience” because not expert opinion; (3) error in allowing hearsay was harmless because the same information was also introduced through admissible source; (4) Rule 404(b) objection re: other students who reported misconduct waived because not made contemporaneously and because it showed why the school initiated an investigation; (5) no error in admitting recorded conversations between victim and defendant where intelligible recording was not produced until the first day of trial (at least partially because defense did not request more time to prepare); (6) no error in admitting purported statement of the defendant over discovery violation objection because the statement had produced in discovery and defense counsel admitted being familiar with it; (7) no merit to ineffective assistance of counsel claim; and (8) the evidence was sufficient to support the convictions. The court of appeals invoked the plain error doctrine to remand the case for correction of a scrivener’s error in the sentencing order.
(Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge McCarty concurred in result only without separate written opinion.)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (Civil – Contract/Personal Guaranty/Affirmative Defenses)
Affirming the circuit court’s grant of summary judgment in favor of the plaintiff/supplier, holding that there was no error in finding that the owners of a company had personally bound themselves to pay their company’s debt to the plaintiff/supplier per the terms of a credit application that contained a personal guaranty. The court of appeals noted that the defendants did not attach affidavits in response to the summary judgment motion that addressed the guaranty:

The court of appeals then held that the plaintiff/supplier–a secured creditor– had no duty to mitigate before filing a lawsuit for damages and that the defendant that asserted fraud in response to the motion for summary judgment had waived that affirmative defense by failing to plead it in his answer to the complaint.
(All judges concurred.)

Other Orders

Hartzler v. Bosarge, 2019-CT-01606 (granting motion to dismiss appeal as interlocutory)

Doe v. Doe, 2020-CA-00853-COA (denying motion for rehearing)

Braswell v. Braswell, 2020-CA-01090-COA (denying motion for rehearing)

Nunn v. State, 2021-TS-01371-COA (granting pro se motion for out-of-time appeal and granting motion to withdraw and substitute counsel)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of April 5, 2022

After a slow week on the opinion front the Mississippi Court of Appeals is back in action with eight opinions today. There is a domestic relations case dealing with a slew of arguments about child support and child custody, a criminal appeal addressing waiver of potential conflicts with codefendants being represented by a single attorney, a disability opinion, an unemployment opinion, and several PCR opinions.

Wallace v. Wallace, 2020-CA-01148-COA (Civil – Domestic Relations/Custody/Child Support)
Affirming the chancellor’s decisions related to a series of motions related to child support and custody modification:
1. No error in finding the father in arrears for child support for the period of time during which the mother had voluntarily modified the custody arrangement, but not the child support arrangement.
2. No error in finding the father in arrears for nonapyment of daycare and after-school expenses even though the mother “stockpiled” receipts for years rather than presenting them every 30 days as required by the MDA.
3. No error in decision that the mother was not in contempt for withholding visitation in light of the “substantial discretion regarding contempt matters” afforded to chancellors and evidence in the record that visitation was never withheld.
4. No error in no awarding both parents the right to claim the children as dependents for tax purposes because in the absence of specific findings of fact the court assumes the chancellor resolved any factual disputes in favor of the appellee.
5. No error in declining to hold the mother in contempt over the aforementioned stockpiling of daycare/after-school receipts.
6. No error in awarding the mother attorney’s fees in light of the fact that the father was held in contempt.
7. No error in awarding just $1,000 in attorney’s fees to the father for the mother’s violation of the morals clause considering the discretion chancellor’s enjoy on such decisions.
8. No error in ordering the father to provide for the children’s health insurance considering the children’s loss of access to employment-related insurance after the mother’s job was eliminated due to COVID-19.
(Judge Westbrooks and Judge McCarty concurred in part and in the result without separate written opinion)

Magee v. State and Haynes v. State, 2020-KA-01378-COA (Criminal – Felony/Waiver of Potential Conflicts/Dual Representation/Sufficiency of the Evidence/Jury Instructions)
Affirming convictions of co-defendants in consolidated appeals. The court of appeals affirmed the circuit court’s ruling giving the defendants what they asked for by allowing them to waive potential conflicts with being represented by the same attorney, finding that the defendants knowingly and intelligently waived the potential conflicts. The court of appeals held that the evidence was sufficient to support the convictions of both defendants for kidnapping and conspiracy, and the conviction of one defendant for sexual battery. Finally, the court of appeals held that there was no error in denying two of the defendants’ proposed jury instructions or in the circuit court’s sua sponte conspiracy instruction.
(All judges concurred)

Hickerson v. State, 2021-CA-00176-COA (Civil – PCR)
Affirming the circuit court’s denial of a petition for PCR, holding that there was no error in finding that the petition was procedurally deficient for failing to attach competent affidavits and that the claim of ineffective assistance of counsel was meritless.
(Chief Judge Barnes concurred in part and in the result without separate written opinion; Judge Lawrence did not participate)

Barbour v. Singing River Health System Employees’ Retirement Plan and Trust, 2020-CA-01407-COA (Civil – State Board and Agencies/Disability)
Affirming the chancellor’s decision denying disability benefits, holding that to the extent the chancellor’s reference to an incorrect standard of review was in error, it was harmless because the plaintiff was not an “employee” of Singing River at the time of his injury.
(Judge Wilson concurred in part and in result, joined by Judge Smith and Judge Emfinger and in part by Judge McCarty)

Handyman House Techs, LLC v. Mississippi Department of Employment Security, 2021-CC-00029-COA (Civil – State Boards and Agencies/MDES)
Affirming the circuit court’s decision affirming MDES’s determination that an applicant for unemployment benefits was a “employee” rather than an “independent contractor,” holding that the MDES Board of Review’s decision was not arbitrary or capricious.
(Chief Judge Barnes and Judge McCarty concurred in part and in the result without separate written opinion)

Ford v. State, 2020-CP-00372-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR motion, holding that the circuit court correctly ruled that the second PCR motion was an impermissible successive motion.
(All judges concurred)

Thompson v. State, 2020-CP-01236-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR, finding no merit to the claims that the indictment was defective, that the guilty plea was not knowingly and intelligently entered, that the defendant’s attorney had a conflict of interest and provided ineffective assistance of counsel, or that the defendant’s statement and the victim’s statement were coerced.
(All judges concurred)

Booker v. State, 2018-CA-00664-COA (Civil – PCR/Miller)
On rehearing, withdrawing a previous opinion and substituting an opinion holding that the circuit court did not err in determining that the defendant did not have a statutory right to be resentenced under Miller, that the circuit court did not err in denying the defendant’s request for parole eligibility, that the defendant was not deprived of an opportunity to be heard on the issue of rehabilitation, that the defendant failed to prove ineffective assistance of counsel, and that the sentence was not unconstitutional based on arguments about the defendant’s age and IQ.

Other Orders

Walker v. State, 2020-KA-228-COA (denying motion for rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 29, 2022

The Court of Appeals handed down one opinion today that is part MTCA decision on the open and obvious defense and part cautionary tale about the hazards of, and interplay among, Rules 54(b), 59(b), and 60(b) of the Mississippi Rules of Civil Procedure and Rule 3 of the Mississippi Rules of Appellate Procedure. Since I just had one opinion to wrestle with today I took a deeper dive into the timeline and the motions filed at the trial court level.

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (Civil – Wrongful Death)
Affirming in part the circuit court’s order granting summary judgment as to some defendants and dismissing the appeal as to the other defendants. The plaintiff’s decedent died of electrocution while moving a water pump on a State-aid culvert reinforcement project due a conflict with a utility line. The plaintiff filed suit against Pike County, Toles (the County’s State-aid engineer), Neel Schaffer (the engineer’s employer), and others not relevant to this appeal. The timeline is key to unpacking this opinion:

  • July 27, 2018: Summary judgment granted to Neel Schaffer’s because Toles was acting as a county employee and immune under the MTCA and that as a corollary Neel Schaffer, as Toles’s employer, was entitled to MTCA immunity. Final judgment entered as to the claims against Neel Schaffer using the magic words of Rule 54(b) (i.e. “final judgment” and “no just reason for delay”).
  • August 1, 2019: Summary judgment granted in favor of Toles on the claims against him in his individual capacity because it had previously determined Toles was entitled to MTCA immunity. Final judgment entered as to these claims.
  • June 18, 2020: The plaintiff filed a “motion to reconsider” the July 27, 2018, and August 1, 2019, summary judgments.
  • September 21, 2020: Plaintiff’s motion to reconsider was properly treated as a Rule 60(b) motion rather than a Rule 59(b) motion because it was filed more than ten days after the judgments had been entered, found to be untimely and meritless under Rule 60(b), and therefore denied.
  • October 28, 2020: Summary judgment granted as to the claims against Pike County and Toles in his official capacity, finding that they were entitled to immunity under the MTCA.
  • November 17, 2020: The plaintiff appealed from the summary judgments of July 27, 2018; August 1, 2019; and October 28, 2020, but not the September 21, 2020 denial of the motion to reconsider.
  • November 24, 2020: Neel Schaffer and Toles in his individual capacity filed a motion to dismiss the appeal as untimely.
  • November 25, 2020: The circuit court entered a final judgment as to the claims against Pike County and Toles in his official capacity.
  • December 4, 2020: Plaintiff filed an amended notice of appeal, again appealing only the summary judgments.
  • December 8, 2020: Neel Schaffer and Toles filed a second joint motion to dismiss the appeal as untimely.

The Court of Appeals first addressed the July 27, 2018, and the August 1, 2019, final judgments, and held that because the plaintiff did not file a motion to reconsider within ten days of either judgment or a notice of appeal within thirty days of either judgment, the plaintiff’s appeal of those judgments was untimely.

The Court of Appeals then addressed the dismissal of the claims against Pike County and Toles, holding that the circuit court did not err in finding that the dangerous condition was open and obvious, was not created by the government’s negligent maintenance or repair and it, and was not caused by Toles. The Court noted that the issue of whether a danger is open and obvious is usually a question for the trier of fact, but that there are cases where conditions are so clearly dangerous that the issue can be decided as a matter of law. The Court also held that neither Pike County nor Toles could be liable for causing a dangerous condition created by a third-party without notice and sufficient time to correct the dangerous condition:

(All judges concurred)

PRACTICE POINT: If you win summary judgment as to fewer than all claims/parties, request a 54(b) final judgment like the defendants did here. If the other side wins summary judgment as to fewer than all claims/parties, beware of a 54(b) final judgment that starts your appeal shot clock.

Other Orders

Wilson v. State, 2020-CP-00762-COA (denying motion for rehearing)
Hardin v. Hardin, 2020-CA-1314-COA (denying appellee’s motion for appellate attorney’s fees)
Jiles v. State, 2021-CP-34-COA (denying motion for rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 22, 2022

The Mississippi Court of Appeals dropped nine opinions today including upheld convictions, dismissal of a civil case for discovery violations, a workers’ comp appeal, petitions for custody modification, and a couple of of PCR motions.

Davis v. State, 2020-CP-00283-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se motion for PCR, holding that the circuit court did not err in finding that the claim of ineffective assistance of counsel was procedurally barred.
(All judges concurred)

Fluker v. State, 2021-CP-00162-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se motion for PCR (the plaintiff’s fourth such effort), holding that the plaintiff waived any procedural defects in his indictment when he pleaded guilty and that his claim based on the circuit clerk’s failure to stamp “filed” on the indictment was therefore procedurally barred.
(All judges concurred)

Mize v. Shiloh Market, Inc., 2020-CP-01119-COA (Civil – Personal Injury/Rule 37/Rule 60(b))
Affirming the dismissal of a trip-and-fall lawsuit based upon the plaintiffs’ failure to cooperate in discovery, holding that it was within the circuit court’s discretion to dismiss the claims after the plaintiffs’ failed to respond to the defendant’s discovery after the deadline set by a consent order granting the defendant’s motion to compel discovery responses and to deny the plaintiffs’ Rule 60(b) motion.
(Judge Westbrooks and Judge McDonald concurred in result only without separate written opinion).

Addendum – COVID and the Law: Neither the circuit court nor the court of appeals was persuaded by the plaintiffs’ Rule 60(b) motion argument that their discovery responses were not served because of attorney was having issues, including some COVID-related, constituted “exceptional circumstances”:

Kreppner v. Kreppner, 2021-CA-00006-COA (Civil – Domestic Relations/Child Custody Modification)
Affirming the chancellor’s denial of the mother’s motion to modify the terms of an agreed custody order, holding that the father’s remarriage and the resulting changes in the minor’s life did not constitute a “material change in circumstances” and that the Riley test did not apply because there was no evidence of genuinely adverse circumstances.”
(Judge Westbrooks concurred in result only without separate written opinion)

Butler v. State, 2020-KA-00806-COA (Criminal – Felony/Culpable Negligence Manslaughter)
Affirming conviction of culpable negligence manslaughter stemming from a boat collision, holding (1) that the circuit court did not err in granting the State’s motion in limine excluding evidence about the other driver’s prior drug use, (2) that the State presented sufficient evidence for the conviction without regarding to any intoxication argument because there was evidence that the defendant violated five boating rules leading up to the collision, and (3) that the weight-of-the-evidence argument was procedurally barred and meritless.
(Judge Lawrence wrote a special concurrence joined by Judge Greenlee, Judge McDonald, and Judge McCarty)

Wall v. Wall, 2020-CA-01182-COA (Civil – Domestic Relations/Child Custody Modification)
Affirming the chancery court’s involuntary dismissal of the father’s petition for child custody modification, holding that the chancellor did not err in dismissing the petition under Rule 41(b) at the conclusion of the hearing because the father did not prove a material change in circumstances and that the lack of specific discussion of the father’s concerns about the mother’s alcohol use did not mean the issue was overlooked such that the chancellor failed to consider the totality of the circumstances.
(Judge Lawrence concurred in result only without separate written opinion)

Hawkins v. State, 2020-KA-01263-COA (Criminal – Felony/DUI)
Affirming conviction of two counts of aggravated DUI after the defendant’s appellate counsel filed a Lindsey brief and the defendant elected not to file a supplemental brief pro se.
(All judges concurred)

Texas Mutual Insurance Company v. Vaughters, 2021-WC-00364-COA (Civil – Workers’ Compensation/Jurisdiction)
Dismissing an appeal from the MWCC, holding that the Commission’s order vacating the AJ’s order and remanding for a determination as to compensability, coverage, and jurisdiction was not a final, appealable judgment.
(All judges concurred)

Manuel v. State, 2020-KA-00711-COA (Criminal – Felony/Excited Utterance)
Affirming convictions and sentences for second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by (1) admitting testimony under the excited-utterance hearsay exception, (2) excusing a juror mid-trial for failure to disclose information during voir dire, (3) collecting the parties’ jury panel information sheets following jury selection and placing them under seal, or (4) sentencing the defendant as a habitual offender.
(Judge Westbrooks concurred in part and dissented in part, joined by Judge McDonald and Judge McCarty; Judge McDonald and Judge McCarty concurred in part and dissented in part without separate written opinion; and Judge Emfinger concurred in part and in the result without separate written opinion)

Other Orders

Robertson v. Houston, Mississippi Public School District, 2020-CA-931-COA (denying motion for rehearing)
Hardin v. Hardin, 2020-CA-1314-COA (denying motion for rehearing)
Butler v. State, 2021-CA-337-COA (granting State’s motion to dismiss for lack of appealable judgment)
Evans v. State, 2021-TS-1423-COA (allowing appeal to proceed without prejudice to State’s ability to rebut presumption that notice of appeal was timely)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 15, 2022

The Mississippi Court of Appeals handed down six opinions today with a little something for everybody. There are two real-property decisions, two PCR denials, one criminal conviction affirmed, and an MTCA/12(b)(6) decision.

DeSoto County v. Vinson,  2021-CA-00122-COA (Civil – Real Property/Division of Subdivision Lot)
Affirming the circuit court’s decision reversing a DeSoto County Board of Supervisors decision regarding the division of a subdivision lot into two separate residential lots, holding that the circuit court did not err in ruling that the properly owner should resubmit an application to divide property with written approval of “adversely affected” and “directly interested” parties or proceed under section 19-27-31 in chancery court.
(All judges concurred)

Land v. Land, 2021-CA-00402-COA (Civil – Real Property/Partition of Property)
Affirming the chancellor’s denial of complaint for partition, holding that chancellor did not err in ruling that the residential property claimed as homestead property by one party could only be partitioned by written agreement of the parties and could not be involuntarily partitioned by chancery court decree.
(All judges concurred)

Bridges v. State, 2020-CA-00816-COA (Civil – PCR)
Affirming the circuit court’s denial of a motion for post-conviction relief, holding that the circuit court did not err in finding that there was insufficient evidence to prove that the second PCR motion satisfied a statutory exemption to procedural bars and that the evidence did not show good cause for failing to provide additional affidavits.
(Judge Westbrooks concurred in part and in result, joined by Judge McDonald and Judge Lawrence, and joined in part by Judge McCarty)

Jackson v. State, 2021-KA-00292-COA (Criminal – Felony)
Affirming conviction of sexual battery and filming a minor engaging in sexually explicit conduct and a sentence to serve consecutive terms of thirty years and forty years, holding that there were no arguable issues for appeal based upon a Lindsey brief and the Court’s independent review of the record.
(All judges concurred)

Horton v. State, 2021-CP-00383-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in ruling that the sentence was not unconstitutional and that his confession was voluntary.
(All judges concurred)

J.D. v. McComb School District, 2020-CA-00022-COA (Civil – Personal injury/Civil Procedure/12(b)(6))
Reversing the circuit court’s ruling granting the defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, holding that the plaintiff’s allegations that a minor was attacked at school and that the school district had knowledge of similar conduct by the attacker and breached its ministerial duty to use ordinary care and to take reasonable steps to minimize foreseeable risk to the plaintiff.
(Judge Smith dissented, joined by Judge Greenlee and Judge Lawrence and joined in part by Judge Emfinger)

Practice Point: In footnote 6, the majority opinion addressed and rejected the dissent’s argument that the plaintiff should have included additional details regarding the alleged prior conduct of the attacker, summarizing the liberal pleading requirements of Rule 8:

Other Orders

None

Hand Down List Page

Summaries of the Mississippi Court of Appeals opinions of March 8, 2022

There are six opinions from the Mississippi Court of Appeals today on a wide range of topics, including a holding that a defendant’s failure to respond to a complaint filed on March 6, 2020, until thirty-one days after service of process constituted “excusable neglect” in light of the COVID shutdowns at the time.

Hamer v. State, 2019-KA-01633-COA (Criminal – Felony/Evidence/Rule 403/Golden Rule)
Affirming conviction on two counts of capital murder and armed robbery and sentence to life in prison without parole, holding primarily that (1) wiretapped phone calls between the convicted and his father, whose drug trafficking enterprise the convicted had worked for, were admissible to show motive and tell “the complete story” to the jury, (2) the evidence was sufficient to establish nexus between the killing and the underlying felony to constitute capital murder, (3) and there was no impermissible Golden Rule argument at closing.
(Judge Westbrooks wrote an opinion concurring in part and dissenting in part, joined by Judge McDonald.)

Crockett v. State, 2021-CP-00022-COA (Civil – PCR/Time Bar)
Affirming circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the claim of an involuntary guilty plea was both time-barred and meritless.
(All judges concurred, Chief Judge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)

Erves v. Hosemann, 2020-CA-00467-COA (Civil – Property/Daubert)
Affirming chancellor’s decision denying relief in an action for an injunction to stop the use of a driveway and for monetary damages, holding that the petitioners failed to establish legal title to the subject property and specifically holding that the defendants’ expert witnesses were qualified and that the chancellor’s ruling was not against the overwhelming weight of the evidence.

Practice Point: Appellants got dinged on their Daubert challenge for arguing reliability on appeal when the only issue raised at the trial court was the experts’ qualifications:


(All judges concurred, Judge McCarty concurred in part and in the result without separate written opinion.)

Archer v. Harlow’s Casino Resort & Spa, 2020-CP-00930-COA (Civil – Other/Default/Excusable Neglect)
Affirming in part and reversing in part the circuit court’s grant of the defendant’s motion to dismiss, holding that the circuit court did not abuse its discretion in finding that the defendant showed excusable neglect when it sought an extension of time to answer the complaint thirty-one days after being served and holding that the circuit clerk did not err by correcting a mistake and removing an entry of default, but holding that the trial court should have dismissed the complaint without prejudice and allowed the plaintiff an opportunity to amend her complaint under Rule 15(a).

ADDENDUM – COVID AND THE LAW: The defendant casino blamed the COVID-19 pandemic for being late to respond to the complaint. The casino was served with process on March 9, 2020, three days before the governor of Kentucky (where the casino’s counsel is located) issued a state of emergency and one week before Governor Reeves entered an order in Mississippi closing the casino. The casino asserted that these restrictions made it difficult to gather information from the closed casino in order to prepare and answer. The circuit court granted the late-filed extension request “in light of the current pandemic and government orders restricting operations and travel.” The court of appeals held that this was not an abuse of the circuit court’s broad discretion in this realm. In this case: COVID shutdown in March 2020 = “excusable neglect.”
(All judges concurred, Judge Wilson concurred in part and in the result without written opinion.)

Everett v. Dykes, 2020-CP-01331-COA (Civil – Property Damage/Recusal/Rule 48B)
Dismissing a pro se appeal of an order denying a motion for recusal of the circuit judge, holding that the appellant failed to comply with the procedure required by Rule 48B of the Mississippi Rules of Appellate Procedure for an interlocutory appeal of the denial of a recusal motion.
(Judge Lawrence dissented without separate written opinion.)

Rives v. Ishee, 2020-CA-01328-COA (Civil – Contract/Statute of Limitations)
Affirming the chancellor’s dismissal of a breach of contract lawsuit, holding that the plaintiffs’ second lawsuit was time-barred because they did not file suit until more than three years after they learned they would receive no money from the restaurant and the statute of limitations was not tolled during the first lawsuit because it was dismissed for want of prosecution. The court of appeals also held that the remedy of quantum meruit was inapplicable because there was a contract between the parties.
(Judge Westbrooks concurred in part and dissented in part, joined by Judge Greenlee.)

Other Orders

Westmoreland v. State, 2020-KA-00509-COA (denying motion for rehearing)
Winters v. State, 2020-KA-00809-COA (denying motion for rehearing)

Complete Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 1, 2022

Today’s court of appeals opinions involve a reputed patent troll, alienation of affection, and a bureaucratic nightmare.

International Association of Certified Home Inspectors and Nick Gromicko v. HomeSafe Inspection, Inc., 2020-CA-00520-COA (Civil – Contract/Misrepresentation/Damages Proof)
Affirming in part and reversing in part the circuit court’s judgment on a jury verdict in a suit that included claims for breach of contract, conversion, and negligent misrepresentation filed by a patent troll holder against a trade association after a deal between the two went poorly. This story began when the patent holder filed a patent infringement suit against a member of the trade association, and the trade association sprang into action and made an effort to strike a deal with the patent holder. The parties reached a deal where patent holder would grant a bulk license to the trade association’s membership to use the patented technology and would agree not to sue any trade association member and, in exchange, the trade association would pay the patent holder a portion of the membership dues it collected. A contract was entered and the a dispute arose about how to carry out the contract that centered around how the license was presented on the trade association’s website. The patent holder filed suit and the jury returned a verdict in favor of the patent holder against the trade association and its founder. The court of appeals made three main holdings. First, the court of appeals held that the patent holder, which had been administratively dissolved by the Secretary of State at the time the contract was entered, had standing to sue because the former entity had been reinstated by the time the lawsuit was filed. Second, the court of appeals held that the patent holder did not prove compensatory damages for breach of contract and conversion with “reasonable certainty” because the damages model used at trial was prepared by unidentified individuals who did not use any recognized methodology and who did not testify at trial. Accordingly, the court of appeals reversed and remanded to the circuit court to determine nominal damages for the breach of contract and for conversion. Third, the court of appeals discussed the difference between a “misrepresentation of fact” and a “promise of future conduct” and held that the trade association’s “lofty promises” made during negotiations were not misrepresentations about then-existing facts and therefore reversed the judgment of liability on the negligent misrepresentation claim and entered judgment in favor of the trade association dismissing that claim.
(All participating judges concurred.)

Dew v. Harris, 2020-CA-01261-COA (Civil – Torts/Alienation of Affection)
Reversing the circuit court’s grant of summary judgment dismissing ex-husband’s alienation of affection lawsuit, holding that there was a genuine dispute over material facts in the form of opposing affidavits and that the trial court had improperly considered the credibility and the weight of the evidence presented during the summary judgment proceedings. This case was remanded for further proceedings.
(All participating judges concurred.)

In the Interest of L.T., K.T., E.T., and S.T.: Mississippi Department of Child Protection Services v. Youth Court of Warren County, Mississippi, 2021-SA-00069-COA (Civil – Domestic Relations/Youth Court)
Reversing the youth court’s decision ordering CPS to pay attorney fees and travel expenses to a minors’ guardian under Rule 11, holding that Rule 11 cannot be used to award sanctions against a party that has not actually filed anything even when another party has endured a “bureaucratic nightmare.”
(All participating judges concurred.)

Other Decisions

Mississippi Department of Economic and Community Development v. General Reinsurance Corporation, 2020-WC-761-COA (denying motion for rehearing).

Bryant v. Bryant, 2020-CA-883-COA (denying motion for rehearing, Barnes and Wilson would grant).

Complete Hand Down List

Summaries of the Mississippi Court of Appeals opinions of February 22, 2022

There are three opinions from the Mississippi Court of Appeals today. Two of the decision affirmed the denials of pro se, PCR motions. The more interesting decision to me is a domestic relations case tangentially involving COVID.

Tolliver v. Tolliver, 2020-CA-1357-COA (Civil – Domestic Relations/modification/COVID)
Affirming a judgment dismissing a request for a downward modification of alimony and child support obligations, holding that the chancellor did not err in determining that the petitioner was responsible for losing his primary job when he failed to return to work after a mandatory, fourteen-day COVID quarantine and voluntarily quit additional part time work and that the chancellor applied the correct burden of proof requiring the petitioner to show that his termination of employment and change in income were not caused by his own bad-faith actions.

ADDENDUM – COVID AND THE LAW: I am certain this will not be the last decision dealing with the secondary effects of COVID. In this case, the petitioner contracted COVID and was ordered to isolate from July 20, 2020, through August 3, 2020. He received sick pay from his employer during this mandatory quarantine. He claimed that he was still experiencing COVID symptoms when his mandatory quarantine expired on August 4, 2020, and did not return to work. He received a letter from his employer on August 10, 2020, informing him that he had been terminated as of August 7, 2020 for failure to report his absences. An aggravating factor in this case is that the employer’s termination letter also charged that the petitioner was engaged in outside employment during his paid sick leave which violated company policy. COVID was not a main character in the court’s decision, but it appears the petitioner wanted it to be. I expect to see more of this in the future.

Jones v. State, 2021-CP-270-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se motion for post-conviction relief, holding that the claim was procedurally barred and that, in any event, the petitioner’s plea colloquy was sufficient for his sentencing as a habitual offender.

Ellis v. State, 2020-CP-1026-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the claim was procedurally barred and that underlying claims were without merit.

Other Orders

The court denied motions for rehearing in Piccaluga v. State, 2020-KA-346-COA, and in Humphrey v. Steve Holts, 2021-CA-46-COA.

Complete Hand Down List for February 22, 2022

Summaries of the Mississippi Court of Appeals opinions of Feb. 15, 2022

Anderson v. S&S Properties, LLC, 2021-CA-33-COA (Civil – Real Property/Summary Judgment/Tax Sale)
Affirming summary judgment granted by the chancery court setting aside a tax sale and ordering the county to refund the purchase price to the purchaser, holding that the purchaser had standing and that the county failed to serve proper notice of the tax sale to the assessed property owners. Note: The COA held that the purchaser had standing to sue in this particular case because the amended version of Miss. Code Ann. § 27-25-27(2) did not apply retroactively. The amended statute provides: “No purchaser of land at any tax sale, nor holder of the legal title under him by descent or distribution, shall have any right of action to challenge the validity of the tax sale.”

Ford v. State, 2020-KA-278-COA (Criminal – Felony/Criminal Procedure)
Affirming conviction of first-degree murder, holding:
1. The defendant was not entitled to a directed verdict under Weathersby because the Weathersby issue was procedurally barred and because Weathersby did not apply in this case where there was contradicting.
2. The circuit court did not err by not allowing the defendant to represent himself because the defendant did not expressly make such a request.
3. The circuit court did not err in allowing an investigator to testify about his recollection of a verbal statement the defendant gave to law enforcement.
4. The defendant’s counsel was not constitutionally ineffective for not proposing a “stand your ground” instruction (trial strategy), not filing a motion for new trial or JNOV (this was deficient, but not “prejudicial” in that there is no reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different), not arguing the Weathersby rule (Weathersby was already held to be inapplicable), and not subpoenaing eyewitness testimony (trial strategy).
5. There was no prosecutorial misconduct during closing argument when the prosecutor argued that the trajectory of the bullet showed that the defendant and the victim were not fighting for the gun.
6. The defendant’s should not be reversed as a result of cumulative error because the other issues on appeal were without merit.

Diversicare of Meridian, LLC v. Shelton, 2020-CA-1362-COA (Civil – Contract/Arbitration Agreement)
Affirming the circuit court’s denial of a motion to compel arbitration in a wrongful death nursing-home case, holding that the nursing home failed to provide sufficient proof that the resident gave her daughter, who signed admissions paperwork including an arbitration agreement, authority to bind the resident to arbitrate any future disputes arising from her stay.
NOTE: Although the court of appeals affirmed the denial of the motion to compel arbitration, it held that the circuit court erred in ruling that written authority was required. Specifically, the court of appeals held: “[A] mentally competent individual may orally grant authority to another person to sign documents required for admission to a nursing home.”

Rutland v. Burroughs, 2020-CA-1100-COA (Civil – Torts/Civil Procedure)
Affirming the circuit court’s grant of summary judgment dismissing a malicious prosecution and intentional infliction of emotional distress lawsuit after the plaintiff’s attorney withdrew, the 60-day period given to the plaintiff to retain new counsel or proceed pro se passed without any such action taken by the plaintiff and the plaintiff did not file a timely response to the motion for summary judgment.

Robinson v. Smith, 2020-CA-1249-COA (Civil – Personal Injury/Counter-Claim/Civil Procedure)
Reversing the circuit court’s grant of summary judgment that was based on a default judgment on a counter-claim, holding based on the plain language of Rules 7, 12, and 13, the counter-claim was procedurally improper because it was not asserted in the answer and the plaintiff therefore has no obligation to respond to it.

Lambes v. Lambes, 2020-CA-95-COA (Civil – Domestic Relations/Custody)
Affirming the chancery court’s ruling that it was in the best interest and welfare of the children to place them in the father’s custody, holding that the father was not precluded from being awarded custody after he admitted to the ground of habitual cruel and inhuman treatment when that admission was based on the chancellor’s statement that all rights regarding custody etc would be preserved, and that there were not misrepresentations in the GAL report warranting reversal when the record showed the chancellor made his decision based upon independent findings of fact.

Tillman v. KLLM Transport, 2021-WC-57-COA (Civil – Workers’ Comp/One-Year Limitations Period)
Affirming the MWCC’s dismissal of a workers’ comp claim based on the one-year limitations period, holding that the dismissal of the workers’ comp claim for the claimant’s failure to file a pre-hearing statement is a “rejection of the claim” sufficient to start the one-year limitations period under section 71-3-53 regardless of when or if a B-31 was filed.

Shannon v. Shannon, 2020-CA-847-COA (en banc) (Civil – Domestic Relations)
Affirming the chancery court’s rulings granting divorce on the ground of habitual cruel and inhuman treatment, granting a permanent restraining order against and divesting title from the at-fault party, applying the Ferguson factors, and denying a motion to continue or to allow remote participation.

Williams v. State, 2020-CP-950-COA (en banc) (Civil – PCR)
Reversing the circuit court’s denial of a pro se motion for post-conviction collateral relief, holding that the circuit court did not have sufficient evidence to revoke the defendant’s post-release supervision because (1) the defendant was not convicted of the crime that prompted the revocation of his PRS and (2) there was insufficient evidence in the record that the defendant had failed to pay fees, fines, and restitution. This case was remanded to the circuit court for further proceedings.

Other Orders
4 Denials of Motions for Rehearing

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Mississippi Court of Appeals Hand Downs for February 8, 2022

Blue Cross and Blue Shield of Mississippi v. Brown and Brown of Mississippi, LLC, 2020-CA-1414-COA (Civil – Contract/Garnishment)
Brown obtained two judgments against a BCBS insurance agent, enrolled the judgments, and then filed suit to enforce the judgments and suggestions for writs of garnishment against BCBS and others. BCBS denied it was indebted to the agent. The circuit court ordered BCBS to tender the agent’s commissions to Brown. BCBS appealed, and the court of appeals reversed the circuit court and rendered judgment in favor of BCBS, finding that the agent had assigned her interest in the commissions to a third party long before the writ of garnishment was served. The court of appeals also held that BCBS was entitled to its costs under section 11-35-45 and remanded to the circuit court to address that issue.

Ladner v. State, 2020-KA-299-COA (Criminal – Felony)
Affirming a conviction of possession of a firearm by a felon, holding that it was harmless error for the the circuit court to exclude non-hearsay testimony under the hearsay rule and that the circuit court did not err admitting body cam footage. The opinion lists a claim of ineffective assistance of counsel as one of the issues raised, but there is no discussion of that in the majority opinion, the special concurrence, or the dissent.

Nowell v. Stewart, 2020-CA-728-COA (Civil – Domestic Relations/Child Support)
Affirming the chancellor’s judgment increasing the child support modification based on a material change in circumstances.

Mangum v. State, 2020-CP-1205-COA (Civil – Post-Conviction Relief)
Affirming the circuit court’s dismissal of a motion for PCR based on the statute of limitations and the successive-motions bar.

United Services Automobile Association v. Moffatt, 2020-CA-1391-COA (Civil – Insurance/UM UIM)
The county court granted summary judgment in favor of a UM carrier, finding that the amended complaint naming the UM carrier was time barred because it was filed more than three years after the accident. The plaintiff appealed to the circuit court and the summary judgment was reversed. The UM carrier appealed to the court of appeals and the court of appeals affirmed the circuit court and remanded the case to the county court. The court of appeals held that there was a genuine fact issue for a jury as to when the plaintiff’s UM claim accrued based on when it could be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor.

Lowe v. State, 2019-KA-1621 (Criminal – Felony/Confrontation Clause)
Affirming a conviction of the sale of cocaine and sentencing as a habitual offender, holding that an officer’s testimony that a non-testifying confidential informant said she had bought drugs from the defendant in the past violated the Confrontation Clause of the Sixth Amendment but was harmless error.

Other Orders
6 Rehearing Denials

Link to Hand Down List