Tag: MTCA

Mississippi Court of Appeals Decisions of November 22, 2022

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

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

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

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

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

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

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

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

Other Orders

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

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

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

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

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

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

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

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

Hand Down List

Mississippi Supreme Court Decisions of November 17, 2022

I did not post Court of Appeals decisions on Tuesday because I was in an all-day deposition and went from there to a pinewood derby. I will try to catch up on those later. But today the Mississippi Supreme Court handed down two opinions. One deals with the MTCA’s venue provisions in a wrongful-death case and the other disposes of an appeal of felony convictions and sentencing with an interesting Fourth Amendment analysis.

Jones County v. Estate of Bright, 2021-IA-00631-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of venue change in an MTCA case stemming from a police chase that killed a bystander, holding on interlocutory appeal that under the MTCA venue was only proper in the counties where the administrative offices of the political-subdivision defendants are located (Jones or Lauderdale), and not where the acts or omissions occurred (Pearl River) because the state was not a named defendant.
(8-0: Chief Justice Randolph did not participate)

Fisher v. State, 2021-KA-00828-SCT (Civil – Felony)
Affirming convictions of drug possession and trafficking charges and sentencing as a habitual offender, holding that the defendant was not denied the right to testify on his own behalf where the record was silent as to whether he wanted to testify, that there was no Fourth Amendment search when officers climbed a ladder in a common area with the building owner’s permission to look into the defendant’s ceilingless storage unit, and that resentencing was not necessary because the trial court imposed the mandatory minimum for the aggravated trafficking conviction not on his habitual offender status that was determined without sufficient evidence.
(9-0)

Other Orders

In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (granting Petition of the Mississippi Commission on Continuing Legal Education allowing attorneys to complete their CLE obligations set forth in Rule 3 through online, webinars or live, in-person programs for the 2022-2023 CLE reporting year)

In Re: Rules Governing Admission to the Mississippi Bar, 89-R-99012-SCT (granting Petition to Amend the Rules Governing Admission to the Mississippi Bar filed by the Mississippi Board of Bar Admissions; denying Petition to Amend Rule IV §8 of the Rules Governing Admission to the Mississippi Bar filed by Jefferson Carl Harvey on April 21, 2022 and the Emergency Petition to Amend Rule IV Section 8 of the Rules Governing Admission to the Mississippi Bar filed by Applicant 11596 on June 25, 2021; and dismissing Petition for Ruling Regarding Motion #2022-1321 A/K/A “Petition to Amend the Rules Governing Admission to the Mississippi Bar” filed by Jefferson Carl Harvey on October 31, 2022)

Rules for Court Reporters, 89-R-99021-SCT (amending The Rules and Regulations Governing Certified Court Reporters)

Beale v. State, 2020-CT-00614-SCT (granting cert)

Devine v. Cardinal Health 101, LLC, 2020-CT-01101-SCT (granting joint motion to suspend cert proceedings and dismiss cert petition as moot)

Adams v. State, 2020-CT-01383-SCT (denying cert)

Adams v. State, 2020-CT-01383-SCT (denying pro se cert petition)

Watts v. State, 2021-KA-00873-SCT (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of November 8, 2022

The Mississippi Court of Appeals covered a lot of territory in six opinions handed down today. They areas covered include divorce, criminal issues, MTCA police-protection immunity, third-party liability for work injuries, criminal, and one PCR case for good measure.

King v. State, 2021-CA-01145-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that there was no merit to the claim that his guilty plea was not voluntary or to his ineffective assistance claim.
(9-0: Judge Emfinger did not participate)

Owens v. State, 2021-KA-01256-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm after receiving a Lindsey brief, receiving no pro se brief, and reviewing the record and concluding no issue warranted reversal.
(9-0: Judge Smith did not participate)

Blount v. State, 2021-KA-00204-COA (Criminal – Felony)
Affirming conviction of possession of meth after a jury trial in absentia, holding that the trial court did not abuse its discretion in denying the defendant’s request for a continuance after concluding that the defendant waived his right to be present at trial.
(7-1-2: Judge Wilson concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion; Judge McCarty dissented, joined in part by Judge McDonald.)

Practice Point – Don’t possess meth and then miss your trial date. As Bob Dylan reminds us, “To live outside the law, you just be honest.”

Alves-Hunter v. Hunter, 2021-CA-00644-COA (Civil – Domestic Relations)
Affirming decisions in a divorce proceeding, holding that the chancellor did not commit reversible error in awarding the father standard visitation with their child, dividing the martial estate, or denial of attorneys fees after a contempt finding.
(10-0)

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (Civil – State Boards and Agencies/MTCA)
Affirming judgment for the defendants in a personal injury case brought under the MTCA stemming from a police chase, holding that the circuit court did not err in finding that the police officer did not act with reckless disregard and that the City was entitled to police-protection immunity.

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (Civil – Workers’ Comp)
Reversing summary judgment in favor of a defendant in a third-party lawsuit arising from a workers’ comp injury, holding that the defendant at issue was not an “up the line” contractor but instead was the owner of the project and was therefore a third-party not entitled to exclusive remedy immunity.
(6-4: Judge Carlton dissented, joined by Judge Greenlee, Judge McCarty, and Judge Smith.)

Practice Point – This is a fact-intensive opinion. It does not appear to disturb the general rule that “up the line” contractors are entitled to MWCA immunity as long as they are true contractors.

Other Orders

Moffett v. State, 2021-KA-00622-COA (denying rehearing)

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 Supreme Court Decisions of September 1, 2022

The Mississippi Supreme Court handed down three opinions today. Two are criminal cases (one affirmed and one reversed/remanded over a speedy trial issue and resentencing). The other is a breach of contract case with a tough result for a law firm stuck with the tab after dealings with the State Auditor’s office (while under previous management).

Haymon v. State, 2021-KA-00240-SCT (Criminal – Felony)
Affirming Pernell and Haymon’s convictions of armed robbery, kidnapping, and aggravated assault, holding that the circuit court did not err in denying Pernell’s motion for directed verdict and/or motion for new trial because the evidence was sufficient and the verdict was not against the overwhelming evidence or in denying her request for a lesser included offense jury instruction for simple assault, and that the circuit court did not err in denying Haymon’s motion to suppress a photo identification lineup over the defendant’s arguments that an officer tainted the procedure by providing the witness with the defendant’s name and that the features of the individuals used in the lineup were suggestive.
(9-0)

NOTE – On the issue of whether it was error to the lesser included instruction on simple assault, the Supreme Court explained that aggravated assault occurs when there is assault with a deadly weapon and that severity of the injury is irrelevant:

White v. Jernigan Copeland Attorneys, PLLC, 2020-IA-01404-SCT (Civil – Contract)
Reversing the circuit court’s denial of the Office of the State Auditor’s motion for summary judgment in a suit filed by a law firm seeking damages for a judgment it had to pay a public-relations firm that the law firm contracted with at the direction of then Auditor Pickering, holding that the retention agreement between the OSA and the law firm was void for lack of statutory compliance and that the law firm’s equitable claims against the OSA were barred by the MTCA’s statute of limitations, sticking the law firm with the (substantial) tab from the PR firm it contracted with at Pickering’s direction in anticipation of filing a suit that Pickering decided not to file.
(8-1-0: Chief Justice Randolph concurred in the result only without separate written opinion)

NOTE – This result is brutal. Pickering provided an affidavit to support the law firm’s quest to have the OSA pay the damages but the outcome of the case was controlled by statutes.

Ward v. State, 2021-KA-00664-SCT (Criminal – Felony)
Reversing the circuit court and remanding for a speedy trial-analysis and (assuming no violation is found) re-sentencing, holding that the circuit court did not conduct a proper analysis of the Barker factors when it denied the defendant’s motion to dismiss for lack of a speedy trial and erred in sentencing the defendant as a habitual offender because the proper evidence of the prior convictions was not admitted into evidence.
(7-2: Justice Maxwell concurred in part and dissented in part on the resentencing issue, joined by Justice Griffis)

COVID ADDENDUM – The COVID pandemic accounted for part of the delay in bringing this case to trial, but the Supreme Court explained that blaming COVID does not cure all delay:

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (reappointing Hon. Johnnie McDaniels, Mack A. Reeves, Amy K. Taylor, Hon. Jennifer T. Schloegel, Renee M. Porter, Henry B. Zuber III, Hon. H. Craig Treadway, Jason D. Herring, and Rachel Pierce Waide to three-year terms as members of the Complaint Tribunals)

Shannon v. Shannon, 2020-CT-00847-SCT (granting cert) (COA opinion summary and link here)

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 July 19, 2022

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

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

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

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

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

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

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

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

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

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

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

Other Orders

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

Hand Down List

Mississippi Supreme Court Decisions of June 30, 2022

The Mississippi Supreme Court handed down three opinions today: a case that resolved a fight over the Mississippi Division of Medicaid’s efforts to recoup overpayments to a senior care facility, an MTCA issue that wasn’t, and a post-conviction death penalty decision regarding a request to transfer DNA evidence.

Wilkinson County Senior Care, LLC v. Mississippi Division of Medicaid, 2020-SA-01332-SCT (Civil – State Boards and Agencies)
Affirming the chancery court’s order allowing the Mississippi Division of Medicaid to recoup a substantial overpayment made to a senior care facility for the years 2002-2003 that the DOM did not demand until 2011, holding that the delay did not bar DOM’s recover because (1) neither equitable estoppel nor any other legal or equitable principles barred the claim; (2) the decision was not arbitrary and capricious, clearly erroneous, or unsupported by substantial evidence; and (3) the delay did not violate the facility’s due process rights.
(9-0)

Strickland v. Rankin County School District, 2019-CT-01669-SCT (Civil – Personal Injury/MTCA/Negligence)
Affirming the trial court’s grant of summary judgment in favor of the school district, juking the question of whether the defendant was entitled to discretionary function immunity (that split the COA 5-5) and holding that the plaintiff had not established the basic element of negligence where the evidence provided by the plaintiff–a cross-country runner for the school–was stung by a wasp, was examined by at least one coach, was told to “man up” and run the race, began running, felt dizzy just after the mile marker, and fell and hit his head.
(5-1-2) (Justice Ishee concurred in result only, joined in part by Chief Justice Randolph. Justice Kitchens dissented, joined by Justice King. Justice Beam did not participate.)

NOTE – Here is a summary of the Court’s analysis of the element of breach:

Manning v. State, 2020-CA-01096-SCT (Civil – Death Penalty – Post Conviction)
Affirming the circuit court’s denial of a request to transfer DNA evidence to a different facility for additional DNA testing after the Court previously granted PCR to allow testing but six years of testing had allegedly yielded inconclusive results, holding that the circuit court had authority to decide the motion to transfer the evidence and that the circuit court did not abuse its discretion by denying the motion.
(7-2) (Justice King dissented, joined by Justice King)

Other Orders

Rules for Court Reporters, 89-R-99021-SCT (appointing Hon. Leslie D. King, Kati Vogt, Julie Mims, and Latanya Allen as members of the Board of Certified Court Reporters for two-year terms from July 1, 2022, through June 30, 2024)

Bolton v. John Lee, P.A., 2020-CA-00344-SCT (assigning appeal to Court of Appeals for a decision within 270 days of the entry of this order)

Doe v. Doe, 2020-CT-00853-SCT (denying cert)

Manhattan Nursing and Rehabilitation Center, LLC v. Barbara Hollinshed, 2020-CT-00882-SCT (denying cert)

Jiles v. State, 2021-CT-00034-SCT (denying cert)

The Mississippi Bar v. Mayers, 2021-BD-00268-SCT (suspending Urura W. Mayers from the practice of law pending final resolution of the petition for discipline filed by The Mississippi Bar)

Longo v. City of Waveland, Mississippi, 2021-CA-00735-SCT (consolidating two appeals)

Johnson v. State, 2022-M-00303 (denying reconsideration)

Hand Down List

I try to keep things apolitical around here, but my two older boys and I went to Oxford yesterday and we can confirm that the Ole Miss Rebels did in fact win the 2022 College World Series. The boys obtained autographs from the gracious and patient Dylan DeLucia, Peyton Chatagnier, and Coach Bianco as evidence.

Mississippi Court of Appeals Decisions of June 28, 2022

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

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

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

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

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

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

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

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

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

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

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

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

Other Orders

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

Hand Down List

Mississippi Court of Appeals opinions of May 10, 2022

The Mississippi Court of Appeals set a new record since the launch of this blog by handing down fourteen opinions. After briefly contemplating a dash to the exit, I decided to slog through all of them so you don’t necessarily have to. Needless to say, there is something for everybody today!

(Apologies for the all-but-certain uptick in typos)

Fugler v. Bank of Brookhaven, 2021-CA-00303-COA (Civil – Personal Injury/Premises Liability)
Affirming summary judgment in favor of the defendant in a slip and fall case, holding that the plaintiff, who allegedly tripped on a floor mat but testified she did not see the mat before tripping, failed rebut the defendant’s summary judgment motion and supporting affidavit stating that the bank had no knowledge of prior incidents with its floor mats or any issues with the mat involved, that around 300 customers entered the bank daily and the bank was not aware of any prior mat-related trips or complaints, that the mat was heavy-duty commercial grade and was replaced annually to prevent wear, and that bank employees constantly monitored the floors.
(All judges concurred.)

Keys v. Military Department Gulfport, 2021-WC-00352-COA (Civil – Workers’ Comp)
Reversing the Commission’s finding that the Employer/Carrier was entitled to a credit for indemnity payments that the claimant received but assigned back to the employer during the time the claimant was receiving paid sick leave, holding that since the claimant was awarded permanent total disability benefits, section 25-3-95(2)(b) (prohibiting a state employee from using accrued personal and/or medical leave and receiving workers’ comp to earn more than 100% of his state-employment wages) did not apply.
(Judge Wilson specially concurred, joined in part by Judge McCarty.)

NOTE – I think Judge Wilson’s special concurrence provides a clearer path forward in workers’ comp cases: Regardless of whether the indemnity benefits during the time in question were classified as TTD or PTD, the claimant was entitled to a total of 450 weeks of indemnity benefits (however classified) and since the claimant did not receive any indemnity benefits during the period he was assigning benefits back to the Employer, the Employer/Carrier were not entitled to a credit for those weeks.

Smith v. State, 2021-CP-00099-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se plaintiff’s PCR petition, holding that the plaintiff presented no evidence to show a reasonable ground for the trial court to believe he was incompetent to plead guilty.
(All judges concurred.)

Prystupa v. Rankin County Board of Supervisors, 2020-CA-01049-COA (Civil – MTCA/Statute of Limitations/Latent Injury)
Affirming the dismissal of a flooding damage MTCA claim based on the running of the statute of limitations, holding that this claim was an MTCA negligence claim subject to a one-year statute of limitations that began to run when the plaintiff knew or should have known of both the injury and its probable cause. In this case, the Court of Appeals held that the statute of limitations began to run when the plaintiff knew of the flooding (the injury) and knew it was due to a blocked drain (the cause) as opposed to when he found out that crushed pipe caused the blocked drain (i.e. caused the cause). The Court of Appeals also affirmed the circuit court’s denial of the plaintiff’s Rule 59(e) motion to aleter or amend based on fraudulent concealment and the circuit court’s denial of the plaintiff’s motion for leave to amend his complaint to add claims of nuisance and trespass.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Emfinger did not participate.)

TAKE HEED, lest you fall victim to the distinction between “statutory tolling” and “MTCA tolling”:

Schmidt v. Schmidt, 2020-CA-01253-COA (Civil – Custody)
Affirming the chancellor’s decision granting sole physical custody to the mother, holding that there was no error in finding that the deterioration of the parties’ ability to co-parent constituted a material change in circumstances entitling the mother to sole physical custody and no error in the application of the Albright factors.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s judgment affirming the Mississippi Employee Appeals Board’s decision upholding the claimant’s termination, holding that the claimant’s procedural due process rights were not violated because he was provided notice of the charges and an opportunity to be heard, that his substantive due process rights and rights under the MS State Personnel Board rules were not violated because the MEAB’s decision was supported by substantial evidence and was not arbitrary, and that the claim that the claimant was terminated because of communications with his wife and that the MEAB’s decision was based on uncorroborated hearsay was without merit.
(All judges concurred.)

McIntosh Transport, LLC v. Love’s Travel Stop & Country Stores, Inc., 2021-CA-00154-COA (Civil – Contract/Arbitration)
Reversing the circuit court’s order granting the defendants’ motion to compel arbitration, holding that the contract containing the contract was not binding on the plaintiff because it was signed by a 19-year-old who signed his grandfather’s name and whose only authority was the actual authority to retrieve the truck following repairs that did not include the authority to bind the company to arbitration.
(Chief Judge Barnes concurred in part and in the result without separate written opinion. Judge Carlton concurred in the result only without separate written opinion.)

Case v. Case, 2020-CA-01047-COA (Civil – Custody/Equitable Distribution of Marital Property/Albright Factors/Ferguson Factors)
Affirming the chancellor’s decision on child custody, but reversing the chancellor’s decision on the equitable distribution of marital property. Regarding custody, the Court of Appeals held that the chancellor’s application of the Albright factors was supported by substantial evidence. Regarding equitable distribution, the Court of Appeals affirmed all of the chancellor’s findings except his valuation of the marital property which it reversed and rendered due to a calculation error.
(Judge Wilson and Judge Westbrooks concur in part and in the result without separate written opinion.)

MY TAKE – Few, if any, of us are in the legal field because of a proclivity for math yet it still haunts us all.

Wadley v. Hubbs, 2021-CA-00866-COA (Civil – Real Property/Notice of Appeal)
Reversing the circuit court’s dismissal of the plaintiff’s appeal from a county court judgment as untimely, holding that the plaintiff’s notice of appeal that was stamped “Filed” after the county court’s judgment but before disposition of the plaintiff’s motion to set aside the judgment was effective and timely even though the header of the notice said “IN THE COUNTY COURT” because the body of the notice made it clear the plaintiff was appealing to the circuit court and the notice was stamped “Filed” by the circuit clerk.
(All judges concurred.)

Murray v. State, 2021-KA-00264-COA (Criminal – Felony/Hearsay/Rule 412)
Affirming conviction of statutory rape, holding that the circuit court erred in allowing the victim’s mother’s to testify about a neighbor’s out-of-court statement, but that it was harmless and “essentially cumulative evidence of non-criminal activity that [the defendant] admitted.” The Court of Appeals also held that the circuit court did not err in denying the defendant’s ore tenus request to compel the victim’s counseling records because even though a determination of whether the records were privileged could not be made until the records were examined, the defendant did not comply with Rule 412 of the Mississippi Rules of Evidence. The Court of Appeals also held that the plaintiff’s claims of ineffective assistance of counsel for failure to request an alibi instruction, failure to object to hearsay, failure to request a limiting instruction regarding the hearsay testimony, and failure to make a timely request for the victim’s counseling records did not entitled him to relief on this appeal.
(All judges concurred.)

Bailey v. State, 2021-KA-00281-COA (Criminal – Felony/Lindsey Brief)
Affirming conviction of fondling of a six-year-old and sentence to life imprisonment as a violent habitual offender, noting that the defendant’s appointed appellate counsel filed a Lindsey brief and holding that the defendant’s pro se brief arguing that the trial court lacked jurisdiction and that his indictment was not marked “filed” was factually mistaken and without merit.
(Judge Smith did not participate.)

Finley v. PERS, 2021-SA-00089-COA (Civil – State Boards and Agencies/PERS/Disability)
Reversing the circuit court’s judgment affirming PERS Medical Board’s denial of the plaintiff’s claim for non-duty-related disability retirement benefits, holding that PERS’s assessment of the plaintiff’s job requirements and ability to perform her job was arbitrary and capricious. The case was remanded for PERS to determine if the plaintiff could perform the true duties of registrar with her disability and the support staff, if any, she had at the time.
(Judge Wilson concurred in part and in result without separate written opinion.)

Boyd v. MDOC, 2021-CC-00459-COA (Civil – State Boards and Agencies/MDOC)
Affirming the MDOC’s disciplinary actions against the plaintiff whose oversight led to MDOC’s failure to issue an arrest warrant for a probationer who did not report to his assigned probation office upon release from MDOC custody who then killed two Brookhaven police officers in the line of duty, holding that the plaintiff failed to meet her burdens of proof and persuasion to overcome the presumption of correctness due MDOC’s decision.
(All judges concurred.)

Parker v. Ross, 2020-CA-01055-COA (Civil – Wills, Trusts, and Estates)
Affirming in part and reversing in part the chancery court’s grant of summary judgment in a claim alleging mismanagement of a trust and to recover real property that was allegedly improperly sold. The Court of Appeals affirmed the chancellor’s judgment in part, holding that any claims governed by the three-year statute of limitations were time-barred. The Court of Appeals also reversed the chancellor’s judgment in part, holding that the allegations related to the mismanagement of the trust were subject to a ten-year statute of limitations and that one of the plaintiffs had created a genuine issue of material fact as to his unsoundness of mind and remanded this matter to the chancery court for further proceedings.
(Judge Emfinger dissented, joined by Judge Wilson and Judge Greenlee and joined in part by Judge McDonald.)

Other Orders

Lawrence v. State, 2021-TS-1324-COA (providing, on the court’s own motion, the appellant and his attorney, Wayne Dowdy, one final opportunity to show cause why this appeal should not be dismissed as untimely)

Phew…

We did it, folks.