In what was certainly the biggest new story from Tuesday, the Mississippi Court of Appeals handed down five opinions. Today, the Mississippi Supreme Court handed down one opinion and one order amending the Mississippi Rules of Civil Procedure. You can read about all below.
Mississippi Court of Appeals – November 5, 2024
Patton v. State, 2023-CP-00618-COA (Civil – PCR) Affirming summary dismissal of PCR motion, holding that the motion was successive and untimely with no available exceptions and that the motion was meritless. (9-0: Smith did not participate)
Slade v. City of Lumberton, 2023-CA-00830-COA (Civil – Personal Injury) Affirming summary judgment in a MTCA personal injury case stemming from a police pursuit, holding that the trial court did not err in finding no reckless disregard based on the undisputed facts and that the trial court did not err in denying the motion to recuse based on the judge’s prior representation of the City. (6-3: McDonald dissented, joined by Westbrooks and McCarty; Weddle did not participate)
McDill v. Scott County School District, 2023-CA-00956-COA (Civil – Personal Injury) Reversing summary judgment in an MTCA case stemming from a student’s weightlifting injury at school, holding that the school district was not entitled to discretionary-function immunity. (10-0)
The University of Mississippi Medical Center v. Redd, 2023-CA-00711-COA (Civil – Med Mal) Affirming a bench trial verdict of $500,000 in a med mal case, holding that there was substantial evidence to support the trial court’s findings that the doctor breached the standard of care by not ordering lab work or further testing which, in turn, would have revealed the infection and prevented the amputation, and holding that the trial court did not abuse its discretion in admitting testimony of an orthopedic surgeon who primarily practiced in a different subspecialty than the treating doctor. (8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)
Morgan v. Riverboat Corporation of Mississippi, 2023-CA-00379-COA (Civil – Personal Injury) Affirming summary judgment in a personal injury case where the plaintiff was struck by poolside cushions blowing in the wind while she was closing out her tab at the swim-up bar, holding that the trial court did not err in finding that they cushions were not an unreasonably dangerous condition and that there was no evidence of negligence on the part of the defendant. (7-3: Westbrooks dissented, joined by McDonald and Lawrence)
Other Orders
Sinquefield v. The City of Ridgeland, 2022-CA-01276-COA (denying rehearing)
In Re Estate of Warren: Warren v. Maharrey, 2023-CA-00438-COA (denying rehearing)
Childress v. State, 2023-KA-01323-SCT (Criminal – Felony) Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of it. (9-0)
Other Orders
In Re: The Rules of Civil Procedure, 89-R-99001-SCT (amending M.R.C.P. 62 – the order states that the amendment is effective 30 days after the date of the order which was entered on October 31, 2024)
Here are the amendments to Rule 62 (subsections (c) through (h) were not altered):
Mississippi State University v. Zhang, 2024-M-00344-SCT (denying rehearing)
Hertz Jackson Three, LLC v. Sanders, 2024-M-00497-SCT (denying interloc)
Mississippi Baptist Medical Center, Inc. v. Butler, 2024-M-00930-SCT (denying interloc)
The Mississippi Court of Appeals handed down three opinions today. There is one divorce case, one direct criminal appeal, and one appeal of the dismissal of a negligence case for the plaintiff’s failure to comply with discovery and discovery-related orders from the circuit court.
Capocaccia v. Capocaccia, 2022-CA-00129-COA (Civil – Domestic Relations) Reversing the chancellor’s findings on equitable distribution, child support, and college expenses but affirming finding that the father was in contempt, holding that the chancellor erred in the division of the marital estate without referencing or discussion the parties’ debts and assets, erred in awarding child support in excess of the statutory guidelines without specific findings supporting the deviation, and erred in assigning equal responsibility for the children’s college expenses; but that there was no reversible error in denying the father’s motion to continue contempt proceedings or in finding the father in contempt. (8-2-0: Wilson and McDonald concurred in part and in the result without separate written opinion.)
Russell v. State, 2022-KA-00447-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding there was no error in allowing a State’s witness to narrate events depicted in a surveillance video while it was played to the jury. (9-1-0: McDonald concurred in part and in the result without separate written opinion.)
McAlpin v. Illinois Central Railroad Company, 2022-CA-00334-COA (Civil – Other) Affirming the circuit court’s decision granting a motion to dismiss in a negligence suit based on the plaintiff’s failure to heed court-ordered discovery requirements, holding that the trial court did not err in denying the plaintiff’s motion for additional time to comply with the scheduling order that was filed after the court had advised there would be no more extensions and on the date that the court had ordered that additional discovery responses were due and that the trial court did not err in dismissing the case with prejudice for repeated failures to comply with the court’s orders. (10-0)
PRACTICE POINT – Here is the Court’s analysis of the facts of this case under standard in Beck v. Sapet, 937 So. 2d 945 (Miss. 2006):
Other Orders
Grantham v. Grimm, 2021-CA-01314-COA (denying rehearing)
SDBT Archives LLC v. Penn-Star Insurance Company, 2022-CA-00099-COA (denying rehearing)
Williams v. State, 2022-KA-00100-COA (denying rehearing)
Hamilton v. State, 2022-CP-00217-COA (denying rehearing)
Sanders v. Reeves, 2022-CP-01059-COA (denying rehearing)
The Mississippi Supreme Court handed down two opinions today: one civil and one direct criminal appeal. The civil case addressed whether summary judgment based on 30(b)(6) testimony in a negligence case was proper. The direct criminal appeal challenged a capital murder conviction on several grounds.
Mississippi State Agencies Self-Insured Workers’ Compensation Trust v. Herrgott, 2021-SA-01280-SCT (Civil – Real Property) Reversing summary judgment in a subrogation action filed by a workers’ compensation trust against an alleged tortfeasor stemming from an ATV accident in which a state employee sustained an injury that compensable under the MWCA, holding that the trust was not bound by the failure of its 30(b)(6) representative to articulate a legal theory at his deposition. (9-0)
PRACTICE POINT – The Supreme Court favorably quoted a prior MS Court of Appeals decision and two decisions from federal district courts in its reasoning. The quoted language could benefit both sides of the civil bar in a few different contexts that come immediately to mind:
Dukes v. State, 2022-KA-00670-SCT (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err by allowing testimony of a rebuttal witness that had not bee disclosed, or in denying a motion for mistrial based on argument that the State violated a motion in limine precluding testimony related to severed counts in the indictment, and the that trial was not rendered unfair by hearsay testimony. (9-0)
Other Orders
In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing/reappointing the following six persons to three-year terms as members of the complaint tribunals effective September 1, 2023: George Philip Schrader IV, Hon. Carol White-Richard, Hon. Jennifer F. Nicaud, Hon. Claiborne (Buddy) McDonald IV, J. Rhea Tannehill, Jr., and Leo J. Carmody)
Neal v. State, 2011-M-00201 (granting letter motion and remanding for resentencing)
Thomas v. State, 2021-CT-00060-SCT (denying cert)
Mitchell v. State, 2021-KA-00589 (denying rehearing)
Happy New Year! The courts are back in action so I am too. The first hand down list of 2023 has four opinions from the Mississippi Court of Appeals. Two are personal injury cases, one is a custody modification case, and the other is a PCR case.
Mallard v. State, 2022-CA-00152-COA (Civil – PCR) Affirming the denial of a PCR motion, holding that the plaintiff’s right to a speedy trial was not violated and that a discrepancy in the sentencing order and transcript was a scrivener’s error not warranting reversal. (10-0)
Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (Civil – Personal Injury) Affirming judgment in favor of the defendant hospital after a bench trial in a negligence suit stemming from a fall while the plaintiff was get onto a medical transport bus, holding that the duty owed was the duty owed to an invitee and there was no evidence that the steps to the bus were not reasonably safe, that the decision was not against the weight of the evidence, that the trial court did not err in excluding testimony that the driver was in the habit of of being late, and that an objective person could not find the judge biased based on a comment she made while stepping down from the bench. (7-2-0: Judge Westbrooks and Judge McDonald concurred in the result only without separate written opinion; Judge Lawrence did not participate)
Moreland v. Spears, 2021-CA-00714-COA (Civil – Custody) Affirming modification of custody and visitation, holding that the chancellor did not abuse his discretion by awarding the mother sole legal custody, by restricting the father’s visitation, or by not finding the mother in contempt for withholding visitation during March 2020 while the COVID “stay-home order” was still active. (10-0)
COVID AND THE LAW – The father argued that the mother should be held in contempt for withholding a visitation that was due to occur during the March 2020 COVID shutdown. The mother testified that she tried to set up alternate times but the father refused. The Court of Appeals held that the particular facts of this case supported the chancellor’s decision of no contempt:
Cornell v. MDHS, 2021-SA-00784-COA (Civil – Personal Injury) Affirming in part and reversing in part summary judgment in favor of MDHS in a case alleging that MDHS placed the plaintiff in foster care with a know pedophile, holding that MDHS is statutorily immune from suit regarding the investigation and licensing of the foster parents’ home but reversing the grant of summary judgment on the issues of whether MDHS’s failure to report allegations of abuse and MDHS’s failure to conduct required visits were the proximate cause of continued abuse. (8-2: Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes)
Other Orders
Edwards v. State, 2021-KA-00261-COA (denying rehearing)
Virden v. Campbell Delong, LLP, 2021-CA-00478-COA (denying rehearing)
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)
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.
The Mississippi Supreme Court handed down six opinions today. Topics include public project bidding, summary judgment in a property damage case, conversion by the owner of a collection agency, an appeal of a post summary judgment decision granting a Rule 60(b) motion based on fraud, a unanimous pro se PCR appeal win, and an election contest.
The Mississippi State Port Authority at Gulfport v. Eutaw Construction Company, Inc., 2020-IA-00881-SCT (Civil – State Boards and Agencies) Reversing the circuit court’s decision that reversed the MSPA’s award of a project to the lowest bidder whose bid contained multiple errors and awarded the project to the second lowest bidder, holding that the lowest bidder’s errors were minor, the intended correct bid was evident on the face of the bid, and the corrected bid by the lowest bidder was a decrease in price. (All justices concurred.)
Hardin v. Town of Leakesville, Mississippi, 2020-CA-01164-SCT (Civil – Property Damages/Summary Judgment/Proximate Cause) Affirming summary judgment in favor of Leakesville, holding that the plaintiff failed to present sufficient evidence that water that had accumulated under her house was caused by an act or omission attributable to the town. (All justices concurred.)
Practice Point – This opinion contains a helpful discussion of the exacting standard that applies when a plaintiff seeks to prove causation by circumstantial evidence:
McGee v. Comprehensive Radiology Services, PLLC, 2021-CA-00666-SCT (Civil – Torts/Conversion/Fraud) Affirming the chancellor’s finding that the president of a collections agency was individually and personally liable for $785,549.71 that she directed her company to delay remitting to a radiology group while also billing for and receiving commissions for collecting that money, holding that while the tort of conversion cannot be used to recover a mere debt it can be used to recover identifiable money belonging to the plaintiff which is what occurred here. (All justices concurred.)
Riverboat Corporation of Mississippi v. Davis,2020-IA-01244-SCT (Civil – Personal Injury/Negligence/Rule 60(b)) The circuit court granted summary judgment in favor the casino in a personal injury case stemming from a fall from a casino chair due to the lack of evidence that the casino breached a duty. The plaintiff then filed a motion to reopen the case under Rule 60(b)(1) alleging that the defendant committed fraud in its 30(b)(6) deposition based upon information the plaintiff discovered in an unrelated case about another chair at the casino. The circuit court granted the motion to reopen based on fraud and the defendant petitioned for interloc which the Supreme Court granted. On appeal, the Supreme Court held that the trial court abused its discretion because the plaintiff “fell far short of satisfying all of the elements of fraud” and because this case did not present the requisite “exceptional circumstances” for relief under Rule 60(b). (All justices concurred.)
Practice Point – This opinion has a helpful summary of what is required to prove fraud under Rule 60(b)(1):
Magee v. State, 2019-CT-01794-SCT (Civil – PCR/Involuntary Guilty Plea) Reversing the circuit court’s denial of the plaintiff’s pro se PCR motion, holding that the circuit court granted an evidentiary hearing but failed to address the issue of whether the plaintiff’s guilty plead was involuntary because the plaintiff was affirmatively misinformed about the possibility of early release by his trial attorney and failed to allow the plaintiff to call witnesses or present evidence. (Chief Justice Randolph did not participate.)
Meredith v. Clarksdale Democratic Executive Committee, 2021-EC-00305-SCT (Civil – Election Contest) Affirming the trial court’s decision agreeing with the CDEC’s decision that a mayoral candidate resided at a lake house outside of the city limits rather than a funeral home apartment within the city limits, holding that the would-be candidate failed to prove by “absolute proof” that he met the residency requirement on or before the applicable deadline. (Justice Coleman concurred in part and in the result) (“It is not in the court’s bailiwick to impose its judgment for that of the Legislature.”)
Other Orders
Hutto v. State, 2017-DR-01207-SCT (granting response to order granting motion for appointment of counsel for representation for successive petition for post-conviction relief filed by the Circuit Court of Hinds County)
Havard v. State, 2018-CA-01709-SCT (granting motion to file motion for attorney fees and expenses under seal)
Walker v. State, 2020-CT-00228-SCT (denying cert)
McLemore v. State, 2016-M-00364 (denying application for leave to proceed in the trial court with a warning against future frivolous filings)
The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.
I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today. Thanks, Management
Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence) Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate. (Judge Wilson concurred in part and the in the result without separate written opinion.)
Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR) Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied. (All judges concurred.)
Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation) Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence. (All judges concurred.)
PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:
This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)
Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale) Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue. (All judges concurred.)
Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:
NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.
Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation) Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question. (All judges concurred.)
Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn) Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do. (Judge Smith did not participate, all other judges concurred.)
Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure) Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right. (All judges concurred.)
Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence) Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence. (All judges concurred.)
Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act) Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation. (Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)
NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).
Other Opinions
Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing) Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)
Mississippi Appeals Blog 