Tag: PCR

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 Supreme Court opinions of March 3, 2022

I am posting these summaries on a delay because I spent yesterday at Legoland in Florida with my family. While I was strolling through Bricksburg and riding a Duplo block safari truck, the Mississippi Supreme Court unleashed 126 pages of opinions in just four cases. Only one decision was unanimous and the others were 7-2, 5-4, and 5-4, each of which drew thoughtful dissents.

The more contentious cases were a death penalty post-conviction claim, a case of first impression applying the federal vacatur rule, and a decision addressing the limitations period in a thorny implied indemnity case.

Jones v. State, 2021-KA-00275-SCT (Criminal – Felony/Manslaughter)
Affirming conviction for manslaughter, holding (1) the circuit court did not err by not requiring the jury to specify whether its verdict was based on heat of passion or imperfect self-defense because those are both factual theories encompassed within section 97-3-35, (2) there was sufficient evidence to support the jury’s verdict, and (3) dispersing the jury for lunch was within the circuit court’s discretion and no timely request to sequester was made.
(All participating justices concurred.)

Batiste v. State, 2019-CA-00283-SCT (en banc) (Civil – Death Penalty – Post Conviction/Recusal/Gladney)
Affirming the circuit court’s denial of Bastiste’s motion for recusal based on an argument that the circuit judge’s memory of an alleged conversation with a juror could be relied on in witness-credibility determinations while evaluating the underlying PRC claim and denying the underlying PCR claim, holding (1) that it was speculation that the judge might be a necessary witness in the case, (2) that the Office of Capital Post-Conviction Counsel did not even attempt to follow the appropriate method for post-verdict juror inquiry laid out in Gladney, and (3) that Batiste’s Six Amendment right to an impartial jury was not violated when the circuit court determined that discussions of the racial composition of the jury were brought about within the jury itself rather than from an extraneous source.
(Justice Kitchens wrote a dissent, joined by Justice King.)

Gamma Healthcare Inc. v. Estate of Grantham, 2019-CT-00913-SCT (en banc) (Civil – Workers’ Comp)
Affirming the Court of Appeals’ decisions dismissing the case as moot following the untimely death of the claimant, applying federal vacatur rule and vacating the MWCC’s orders to replace the claimant’s septic and HVAC systems, and reversing the MWCC’s award of sanctions.

The vacatur issue was one of first impression in Mississippi. The Mississippi Supreme Court’s decision included the following excerpt from the U.S. Supreme Court on the vacatur standard:

The United States Supreme Court has held that:

When a civil case becomes moot pending appellate adjudication, “[t]he
established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct. 104, 106, 95 L. Ed. 36 (1950). . . . Vacatur is in order when mootness occurs through happenstance—circumstance not attributable to the parties—or, . . . , the “unilateral action of the party who prevailed in the lower court.” U.S. Bancorp Mortgage Co., 513 U.S., at 23, 115 S. Ct., at 390; cf. id., at 29, 115 S. Ct., at 393 (“mootness by reason of settlement [ordinarily] does not justify vacatur of a judgment under review”).

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71-72, 117 S. Ct. 1055, 1071, 137 L. Ed.2d 170 (1997) (emphasis added) (first, second, and fifth alterations in original). “Because this practice is rooted in equity, the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’” Azar v. Garza, 138 S. Ct. 1790, 1792, 201 L. Ed. 2d 118 (2018) (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 478, 36 S. Ct. 212, 60 L. Ed. 387 (1916)). The Supreme Court also has held that:

The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences,” so that no party is harmed by what we have called a “preliminary” adjudication. Munsingwear, 340 U.S., at 40-41, 71 S. Ct. 104. . . . When happenstance prevents that review from occurring, the normal rule should apply: Vacatur then rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U.S. 193, 200, 108 S. Ct. 523, 98 L. Ed. 2d 529 (1988), and “clears the path for future relitigation,” Munsingwear, 340 U.S., at 40, 71 S. Ct. 104.

Camreta v. Greene, 563 U.S. 692, 713, 131 S. Ct. 2020, 2035, 179 L. Ed. 2d 1118 (2011).

Gamma Healthcare, Inc. v. Estate of Grantham, 2019-CT-00913-SCT at ¶15 (Miss. 2022).

(Justice Randolph wrote a dissent, joined by Justice Coleman, Justice Ishee, and Justice Griffis.)

Cooley v. Pine Belt Oil Co., Inc., 2019-IA-01835-SCT (en banc) (Civil – Implied Indemnity)
Reversing, on interlocutory appeal, the circuit court’s denial of the defendant’s motion for summary judgment on an indemnity claim and rendering judgment in favor of the defendant. Long before this litigation commenced, MDEQ ordered the two sides of this dispute to remediate a gasoline line leak on March 5, 2009. Pine Belt, the landowner, paid for the remediation. Then, in 2015, Pine Belt retained an expert who opined that the leak occurred when the property was owned by the Cooleys.

On April 15, 2016, Pine Belt filed a complaint for implied indemnity against the Cooleys seeking to recover the remediation expenses that Pine Belt incurred in response to MDEQ’s order. The Cooleys filed a motion for summary judgment based on the statute of limitations and Pine Belt argued that an implied indemnity claim cannot accrue before a liability party can be identified and because there must be a final, fixed amount. The circuit court denied the motion. The Mississippi Supreme Court granted interlocutory appeal, reversed the circuit court, and rendered judgment in favor of Pine Belt. The Mississippi Supreme Court specifically held that the statute of limitations began to run when MDEQ ordered the remediation:

Although the amount that Pine Belt was ordered to pay by MDEQ was unliquidated, the MDEQ order legally obligated Pine Belt to pay for present and future cleanup costs which Pine Belt all along believed, in fairness, should be paid by the Cooleys. Because the order placed Pine Belt under a compulsion to pay damages which it believed should be paid by another, this Court finds that all of the elements of implied indemnity were present and the statute of limitations began to run on March 5, 2009, and ended on March 5, 2012. Pine Belt did not file its complaint until April 15, 2016. Thus, Pine Belt’s implied indemnity action is time barred.

Cooley v. Pine Belt Oil Co., Inc., 2019-IA-01835 ¶29 (Miss. 2022) (emphasis added).

(Chief Justice Randolph wrote a partial concurrence, partial dissent, joined by Justice Coleman, Justice Maxwell, and Justice Ishee.)

Other Orders

Grayson v. State, 1998-DP-01782-SCT (denying pro se motion to withdraw motion to carry out execution forthwith)
Powers v. State, 2017-DR-696-SCT (granting motion to seal exhibits from public, but not from opposing counsel)
Fluker v. State, 2020-CT-791-SCT (denying pro se petition for writ of certiorari)
Fields v. State, 2020-KA-1317-SCT (denying motion for rehearing)

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 Mississippi Supreme Court opinions of February 17, 2022

There is not a lot of excitement today. There are just three opinions, all disposing of pro se applications for leave to proceed with PCR motions in the trial court:

Linson v. State, 2018-M-1063 (denying the petition and sanctioning the movant by restricting him from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to this conviction and sentence in forma pauperis)

Fulcher v. State, 2021-M-1195W (denying the petition and threatening sanctions)

Williams v. State,  2021-M-01267 (denying the petition and threatening sanctions)

The order in McBride v. Quality Carriers, Inc., 2021-CP-235, granting appellees’ joint motion to dismiss the appeal and denying appellees’ motions to strike the appellant’s brief piqued my interest. I skimmed the briefing which indicates that the circuit court dismissed the plaintiff’s personal injury lawsuit with prejudice because of the plaintiff’s repeated failure to comply with the trial court’s orders and cooperate in discovery after the plaintiff’s attorney withdrew. The pro se plaintiff took a turn as a pro se appellant but fared no better as the supreme entered an order dismissing the appeal.

Somewhere in the course of the proceedings, the plaintiff/appellant filed a motion with the classic trial/trail typo but in rare handwritten form:


Congratulations to the long-suffering appellees on this win.

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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