Tag: PCR

Mississippi Court of Appeals Decisions of June 3, 2025

The Mississippi Court of Appeals handed down four opinions today. There are two direct criminal appeals, a PCR case, and part two of an ecclesiastical abstention saga.

Stephney v. State, 2023-KA-00936-COA (Criminal – Felony)
Affirming conviction of second-degree murder and attempted murder with firearm enhancement, denying without prejudice to reassert the claim for ineffective-assistance-of-counsel based on trial counsel not seeking a severance and holding that the defendant knowingly and intelligently waived his constitutional right to conflict-free representation.
(9-1-0: Lawrence for the majority; McCarty concurred in part and in the result without writing)

Washington v. State, 2024-CP-00059-COA (Civil – PCR)
Affirming dismissal of a PCR motion, holding that the trial court did not commit reversible error in summarily dismissing the PCR motion without an evidentiary hearing or in denying the motion for discovery.
(7-2-1: Lawrence for the majority; Wilson and McDonald concurred in part and in the result without writing; Emfinger did not participate)

Union Hill Missionary Baptist Church, Inc. v. Champion, 2024-CA-00401-COA (Civil – Other)
Affirming the chancellor’s decision vacating his prior orders and dismissing the complaint in a case involving a church congregation’s dispute over church governance, holding that the courts are without jurisdiction to adjudicate such ecclesiastical matters.
(10-0: Westbrooks for the the court)

Beasley v. State, 2023-KA-01228-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that it was error to deny the defendant’s motion to admit evidence under Rule 412(b)(1)(A) but that the error was harmless and that the evidence was sufficient to support the verdict.
(9-3*-0: Emfinger for the court; Westbrooks specially concurred, joined by McDonald and McCarty)

Other Orders

  • Armistad v. State, 2023-KA-00799-COA (denying rehearing)
  • Turner v. State, 2023-KA-01167-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of May 13 and May 20, 2025

The Mississippi Court of Appeals handed down six opinions last week and a hearty eleven today. There are some interesting cases in the mix and a summary of each is below.

May 13, 2025

May v. May, 2023-CA-01022-COA, consolidated with 2023-M-01401-COA (Civil – Domestic Relations)
Vacating the chancellor’s order of contempt for failure to pay child support but affirming his denial of the motion to recuse, holding that the chancery court did not have personal jurisdiction for purposes of a contempt ruling for want of service under Rule 81, but that although the chancellor erred in finding that the motion for recusal was untimely it was nevertheless within his discretion to deny it.
(9-1-0: Lawrence concurred in result only without writing)

Fortner v. IMS Engineers, Inc., 2023-CA-01170-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a company that had been engaged to oversee and manage road improvement projects until about ten months before a fatal accident occurred, holding that there was no evidence that the company owed a duty of care once its involvement ended and the City took over the management role.
(8-1-0: Wilson concurred in part and in the result without writing; Carlton did not participate)

Horne v. Dolgencorp LLC, 2024-CA-00376-COA (Civil – Personal Injury)
Affirming summary judgment in a trip-and-fall case after a customer tripped on merchandise in an aisle, holding that there was no evidence that the store had actual or constructive knowledge of the presence of the dangerous condition.
(8-2: Westbrooks and McDonald dissented without writing)

Shipley v. Shipley, 2023-CA-00814-COA (Civil – Custody)
Affirming judgment modifying the custody arrangement by giving the mother sole physical and legal custody, holding that the chancellor did not err in modifying physical and legal custody based the mother’s relocation to Oregon, that the chancellor’s did not err by failing to consider the totality of the circumstances, that the chancellor did not give undue weight to one Albright factor, and that the argument that the chancellor erred by not sua sponte appointing a GAL to investigate allegations of abuse was procedurally barred, and declining to address child support in after ruling that the chancellor did not err in its custody decision.
(7-3: Wilson dissented, joined by Carlton and Emfinger)

Magyar v. Shiers, 2023-CA-00682-COA (Torts – Other)
Affirming bench trial decision finding the defendant liable for malicious prosecution and awarding compensatory and punitive damages, holding that there was evidence to support each element of malicious prosecution where the defendant had filed charging affidavits against the plaintiffs alleging that they were intentionally damaging his property by allowing sewage from a leaking septic system to run into his property but the justice court dismissed the charges for lack of evidence.
(10-0)

Mueller Industries, Inc. v. Waits, 2023-WC-00494-COA (Civil – Workers’ Comp)
Reversing the Commission’s decision ordering a lump sum payment, holding that the information in the record did not permit the Court to review the Commission’s computations of TPD and remanding for the Commission to determine whether TPD was properly calculated and credited, determine whether the claimant received more than the maximum weekly benefit and whether the Employer/Carrier should receive a credit for overpayment, and ensure that the Employer/Carrier was not charged with penalties or interest after the date the Commission found that no further benefits were owed.
(8-2: Westbrooks concurred in part and dissented in part, joined by McDonald and joined in part by McCarty)

Other Orders

  • Mount v. State, 2023-KA-00807-COA (denying rehearing)
  • Begnaud v. Begnaud, 2023-CA-00822-COA (denying rehearing)
  • In the Matter of Estate of Tate: Garfield v. Tate, 2023-CA-01262-COA (denying rehearing)

Hand Down Page

May 20, 2025

Mask v. Baggett, 2024-CA-00181-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions denying a motion for contempt and attorney’s fees in a divorce action for lack of proof, holding that the chancellor’s finding that neither party had sufficient proof to support motions for contempt and attorney’s fees was supported by the record and lack of record, that the appellant failed to show that the chancellor abused his discretion by denying the Rule 59 motion due to clear error or manifest injustice.
(10-0)

Bickes v. Swain, 2024-CA-00187-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the mother of the bride and the venue in a premises liability suit filed by a wedding guest who hurt his leg stepping off a porch at the venue, holding that the circuit court did not err in granting summary judgment without conducting a hearing that had been set and that summary judgment was proper because there was no evidence of a dangerous condition that could support liability regardless of whether the plaintiff was classified as a licensee or an invitee.
(7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing; Weddle did not participate)

Page v. State, 2024-CP-00613-COA (Civil – Other)
Affirming the circuit court’s rejection of the plaintiff’s motion for discovery in the circuit court in which he was convicted of attacking a woman with a knife two decades ago, holding that the circuit court did not err in rejecting the claim as a standalone claim separate from a PCR petition though the circuit court incorrectly “denied” the motion instead of “dismissing” the motion for lack of personal jurisdiction.
(10-0)

Jones v. State, 2023-KA-01157-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the circuit court did not commit plain error in excluding evidence of a witness’s prior convictions because the weight of evidence of guilt was overwhelming, that the Miranda violation arguments were procedurally barred and did not merit reversal under the plain error doctrine.
(9-1-0: Wilson concurred in part and in the result without writing)

Pickett v. State, 2024-KA-00511-COA (Criminal – Felony)
Affirming conviction of one count of burglary of a dwelling with intent to commit a larceny, holding that the issue of the circuit court’s denial of the motions for directed verdict was procedurally barred and lacked merit because the evidence was sufficient and the verdict not against the overwhelming weight of the evidence and the circuit court did not err in denying the motions without making specific findings of fact.
(10-0)

Mortera v. Kona Villa Owners Association, Inc., 2023-CA-01297-COA (Civil – Property Damage)
Reversing summary judgment that was entered in favor of an HOA that declined to pursue a property damage claim on behalf of a condo unit owner, holding that based on the bylaws and insurance policy terms there was a genuine fact dispute over the HOA’s status of a fiduciary.
(9-0)

Parrott v. Frierson, 2023-SA-01245-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s dismissal of taxpayers’ petition appealing the Board of Tax Appeals’ order, holding that there was substantial evidence to support the chancellor’s finding that “yard sales” where the taxpayers purchased storage units and sold the contents were not isolated, casual, or occasional sales but sales made in the course of business and subject to sales tax, that the chancellor did not err in finding that the MDOR’s income tax assessment was prima facie correct, that the taxpayers did not overcome the presumption of correctness, and that the chancellor properly affirmed assessment of penalties and interest.
(10-0)

Forrest County General Hospital v. Knight, 2023-WC-01277-COA (Civil – Workers’ Comp)
Affirming the Commission’s order that affirmed the AJ’s order that the claimant suffered an 80% industrial loss of use of the right leg and reducing it to 60% due to apportionment but reversed the AJ’s finding of no loss of wage-earning capacity and awarded 15% LWEC for the low back injury, holding that under the deferential standard of review there was evidence to support the Commission’s decision.
(10-0)

Roach v. Roach, 2024-CA-00236-COA (Civil – Domestic Relations)
Affirming the chancery court’s denial of the ex-wife’s Rule 60(b) motion after the ex-husband was granted a divorce on the grounds of habitual cruel and inhumane treatment, holding that the chancery court did not err in finding that service of process by certified mail was proper and that the ex-wife failed to show exceptional circumstances related to her claim that her prior attorney was ineffective warranting relief under Rule 60(b).
(10-0)

Allen & Smith Insurance Agency, Inc. v. Merrill, 2023-CA-00468-COA (Civil – Contract)
Affirming summary judgment granted in favor of a former employee in a breach of contract claim alleging violations of a non-compete agreement, holding that the court had appellate jurisdiction even though the judgment did not include the language “no just reason for delay” and that the circuit court did not err in finding certain provisions ambiguous and striking them from the agreement.
(5-5: Carlton and Emfinger concurred in part and dissented in part; Wilson dissented, joined by Barnes, and McCarty and joined in party by Carlton and Emfinger)

NOTE – I hope this one goes up on cert. My impression is that the holding of the principal opinion would relax the Rule 54(b) standard as it has been enforced. In the meantime, I would not stop putting all of the Rule 54(b) magic language in your judgments.

Strong v. Acara Solutions, Inc., 2024-CA-00455-COA (Civil – Personal Injury)
Reversing summary judgment in favor of the defendant based on judicial estoppel after the plaintiff failed to disclose this personal injury claim in her bankruptcy proceedings, holding that the “acceptance” element of judicial estoppel was not met where the bankruptcy as dismissed without a discharge.
(8-2: Emfinger dissented, joined by Wilson)

Other Orders

  • Culbertson v. State, 2023-KA-00588-COA (denying rehearing)
  • Boone v. State, 2023-KA-00684-COA (denying rehearing)
  • Gibson v. State, 2023-KA-00704-COA (denying rehearing)
  • Grimes v. State, 2023-KA-01254-COA (denying rehearing)
  • Burnette v. State, 2023-CP-01330-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of May 6, 2025

The Mississippi Court of Appeals handed down nine opinions today. There are several felonies, a wrongful death summary judgment case, a workers’ compensation intoxication case, a wills and estate case, and a few PCR cases. Interestingly enough, the last two PCR cases resulted in voting-line-soup pluralities.

Carr v. State, 2024-KA-00185-COA (Criminal – Felony)
Affirming conviction of fondling and sexual battery, holding that the trial court did not abuse its discretion in denying funding for a defense expert, that the trial court did not abuse its discretion in allowing testimony about other alleged prior bad acts, that one conviction of fondling did not merge with the conviction of sexual battery, and that the indictment was not insufficient for the defendant to prepare an adequate defense.
(9-1-0: St. Pe’ opinion; McCarty concurred in part and in the result without writing)

Smith v. State, 2024-KA-00162-COA (Criminal – Felony)
Affirming convictions of ten counts of possession of child pornography but reversing convictions of two counts of sexual battery, holding that the evidence was not sufficient to support the sexual battery convictions, but that the doctrine of retroactive misjoinder did not require reversal of the other convictions and remanded to reconsider sentencing.
(10-0: Weddle opinion)

Good v. Sanders, 2023-CA-00669-COA (Civil – Wrongful Death)
Affirming the trial court’s grant of summary judgment in a wrongful death case where a pedestrian was struck and killed by a driver, holding that there was no evidence that the defendant breached any duty owed to the pedestrian and that the trial judge did not abuse her discretion in not recusing herself.
(7-3*-0: Lawrence opinion; Westbrooks specially concurred, joined by Weddle and St. Pe’ and joined in part by McCarty; McCarty concurred in part and in the result without writing)

Ruffin v. State, 2024-CA-00867-COA (Civil – PCR)
Affirming denial of PCR motion where the petitioner failed to include a supporting affidavit with her PCR motion and acknowledged at her plea hearing that she was freely and voluntarily admitting her guilt.
(9-1-0: McDonald opinion; Wilson concurred in part and in the result without writing)

Estate of Anderson: Brown v. Fitzgerald, 2023-CA-01131-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision setting aside a deed and ordering conveyance pursuant to the will, holding that substantial evidence supports the chancellor’s findings that the testator suffered from a weakness of intellect and the consideration for the deed was grossly inadequate.
(10-0: Wilson opinion)

Nicolaou v. State, 2023-CP-01007-COA (Civil – PCR)
Vacating the circuit court’s denial of a PCR motion as successive because the circuit court lacked jurisdiction to adjudicate it.
(10-0: Carlton opinion)

Ladner v. Hinton Homes LLC, 2024-WC-00941-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision that a claim was not compensable under the intoxication provision, holding that substantial evidence supported the MWCC’s finding that the claimant failed to prove that intoxication was not a contributing cause of the accident.
(8-2-0: Carlton opinion; Westbrooks and McDonald concurred in result only without writing)

Taylor v. State, 2023-CA-00738-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that although the sentence exceeded the maximum the PCR motion was barred by the statute of limitations.
(3-2-5: Wilson principal opinion; Emfinger concurred in part and in the result without writing; Lawrence concurred in part and in the result, joined by Emfinger, Weddle, and Set. Pe’, and joined in part by Westbrooks and McCarty; McDonald dissented without writing; McCarty dissented, joined by Barnes, Carlton, Westbrooks, and McDonald.)

Underwood v. State, 2024-CP-00423-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in denying the claims that the petitioner’s plea was involuntary and that his attorney rendered ineffective assistance.
(4-1-4: McCarty principal opinion; Westbrooks concurred in result only without writing; Lawrence concurred in part and dissented in part, joined by Wilson, Emfinger, and St. Pe’; Weddle did not participate.)

Other Orders

  • Nailer v. State, 2023-KA-00627-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of April 29, 2025

The Mississippi Court of Appeals handed down two opinions today. One is a PCR case and the other is a direct appeal of a felony conviction. Not much to upsell today.

Harris v. State, 2024-CA-00231-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the ineffective-assistance-of-counsel claim lacked merit.
(10-0)

McGee v. State, 2023-KA-00083-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon, holding that the trial court did not abuse its discretion by allowing evidence of his prior arrest, that the conviction was supported by sufficient evidence, that the claim that the indictment was procedurally barred because it was not raised in the trial court, that the search of the defendant’s car was not illegal, and that the defendant was not subject to an ex post facto violation.
(8-2-0: McDonald concurred in part and in the result without writing; Westbrooks concurred in the result only without writing)

Other Orders

  • Fox v. State, 2023-KA-00596-COA (denying rehearing)
  • Young v. Martin, 2023-CA-00980-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of April 8, 15, and 22, 2025

After a few weeks of attending to other matters, I am back on the blogging horse. Fortunately, the appellate courts went relatively light on me in terms of the number of decisions handed down.

Summaries the hand downs from the Mississippi Court of Appeals from the past three weeks are below. There are several divorce cases, three mal cases (two opinions reached different results after the respective plaintiff’s expert testimony was struck), several MTCA cases, personal injury cases, felonies, an arbitration case, and more.

April 8, 2025

McFall v. Osborne, 2023-CA-01234-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision in a divorce action denying the ex-husband’s Rule 60(b) motion attacking the court’s subject matter jurisdiction, holding that the chancellor had subject matter jurisdiction, that the ex-husband could not attack the merits of the underlying judgment because it was not appealed in time, and that the chancellor did not err in finding the ex-husband in contempt for failing to pay as ordered in the underlying judgment.
(9-0: Westbrooks did not participate)

Estate of Boleware v. McPhail, 2024-CA-00156-COA (Civil – Wills, Trusts & Estates)
Affirming with modification the circuit court’s decision staying litigation and compelling arbitration, holding that the circuit court did not err in finding that the arbitration agreement was valid but modifying the judgment to clarify that the arbitrator must decide whether the claims are within the scope of the arbitration agreement.
(9-1-0: McDonald concurred in the result without writing)

Short v. Polles, 2023-CA-00607-COA (Civil – Torts)
Affirming the circuit court’s dismissal of a farmer’s suit against MDWFP for issuing a permit permitting the farmer to kill deer to protect his soybean field but limiting it to does only, holding that the circuit court did not err in finding that the agency was immune from suit because permit decisions were within the agency’s power and its actions were not arbitrary and capricious.
(8-2-0: Barnes and Wilson concurred in part and in the result without writing)

Other Orders

  • Brooks v. State, 2023-KA-01081-COA (granting pro se motion for time to file motion for rehearing)
  • Bridget v. State, 2025-TS-00100-COA (dismissing appeal for lack of appealable judgment)

Hand Down Page

April 15, 2025

E. Cornell Malone Corp. v. Marshall Cnty. Sch. Dist., 2024-CA-00047-COA (Civil – Contract)
Affirming the circuit court’s dismissal of a complaint against the County related to a construction project, holding that the trial court did not err in finding that the tort claims were barred by the MTCA’s one-year statute of limitations or in denying the motion to amend the complaint.
(9-1-0: Carlton dissented without separate written opinion)

Anderson v. State, 2023-KA-00967-COA (Criminal – Felony)
Affirming conviction of murder, holding that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Pinkton v. State, 2024-CP-00655-COA (Civil – PCR)
Affirming dismissal of a PCR motion, holding that the trial court did not err in finding that the claims were time-barred, waived, and without merit.
(6-4-0: McCarty concurred, joined by Wilson, Emfinger, and Weddle)

Goodson v. State, 2023-KA-00729-COA (Criminal – Felony)
Affirming conviction of possession of meth, holding that the circuit court did not err in denying the defendant’s motion to suppress, in granting the State’s motion in limine preventing the defendant from raising the defense of bias against by the sheriff’s department, or in denying his motion for JNOV or for new trial.
(10-0)

Jordan v. State, 2023-KA-00965-COA (Criminal – Felony)
Affirming conviction of shooting into a dwelling after reviewing the record and counsel’s Lindsey brief, holding that there was sufficient evidence to support the conviction and no issues warranting reversal.
(9-1-0: McDonald concurred in result only without writing)

Holifield v. Highland Community Hospital, 2023-CA-01342-COA (Civil – Med Mal)
Affirming dismissal of MTCA claims against a community hospital, holding that the trial court did not err in determining that the community hospital was a division of a governmental entity and not a separate entity that could be sued or in denying the plaintiffs’ motion for leave to amend to substitute the correct governmental entity because the claim would be time-barred.
(7-3-0: Wilson, McDonald, and McCarty concurred in part and in the result without writing)

Lee v. Doolittle, 2023-CA-00969-COA (Civil – Med Mal)
Reversing summary judgment in favor of the defendants in a med mal case, holding that the circuit court abused its discretion in striking the plaintiff’s expert and then in granting summary judgment for lack of expert testimony.
(5-1-4: Wilson concurred in part and in the judgment without writing; Carlton dissented, joined by Barnes, Emfinger, and St. Pe’)

Other Orders

  • Miller v. State, 2023-CP-00322-COA (denying rehearing)
  • Estate of Forkner: Berry v. Forkner, 2023-CA-00707-COA (denying rehearing)

Hand Down Page

April 22, 2025

Nabors v. State, 2024-KA-00006-COA (Criminal – Felony)
Affirming conviction of aggravated assault of law enforcement, holding that there was sufficient evidence of the defendant’s intent to commit aggravated assault, that the verdict was not against the weight of the evidence, that the trial court did not commit plain error in giving a flight instruction, and that trial counsel was not ineffective.
(10-0)

Crocker v. Daves, 2023-CA-00602-COA (Civil – Custody)
Dismissing appeal in a custody matter, holding that the chancellor’s order holding child support in abeyance due to insufficient information before the court to award child support based on statutory guidelines was not a final, appealable order.
(10-0)

Elmore v. Elmore, 2023-CA-00875-COA (Civil – Domestic Relations)
Affirming a judgment granting divorce and dividing marital property, holding that the chancellor did not err in classifying assets as marital property, in determining what property was marital property or in equitably distributing marital assets, or in denying the motion for new trial or to alter or amend the judgment.
(8-1-0: Wilson concurred in part and dissented in part; St. Pe’ did not participate)

Mallery v. State, 2024-CP-00220-COA (Civil – PCR)
Dismissing appeal of PCR denial, holding that there was no longer an actual controversy since the petitioner had been released from custody.
(9-0: Lawrence did not participate)

Simmons v. City of Picayune, 2024-CA-00092-COA (Civil – Personal Injury)
Affirming summary judgment dismissing a premises liability claim stemming from a fall on a handicap ramp, holding that the plaintiff failed to establish a genuine issue of material fact that the curb ramp constituted a dangerous condition.
(10-0)

Cox v. Coast 132 LLC, 2023-CA-01290-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a restaurant in a slip-and-fall case, holding that the windowsill that allegedly caused the fall was not a dangerous condition and that even if it was a dangerous condition the plaintiff could not prove that the restaurant created it or had actual or constructive knowledge of it.
(8-2-0: Westbrooks and McDonald concurred in result only without writing)

Sandlin v. State Farm Mutual Automobile Ins. Co., 2023-CP-01347-COA (Civil – Insurance)
Affirming dismissal of a pro se UM claim, holding that the trial court did not err in finding that the defendant had not been properly served with process and that the statute of limitations on the claim had run.
(9-1-0: McDonald concurred in result only without writing)

Younger v. Southern, 2022-CA-01228-COA (Civil – Personal Injury)
Affirming part and reversing in part the circuit court’s judgment after a bench trial in a personal injury claim under the MTCA, affirming the award for the loss of the plaintiff’s truck, but reversing the award of damages for past, present, and future pain and suffering and reversing the award of $21,120 in medical damages for lack of expert testimony and rendering an award of $399 for past medical expenses.
(7-3: Westbrooks concurred in part and dissented in part, joined by McDonald and McCarty; McDonald concurred in part and dissented in part, joined by Westbrooks and McCarty)

Calvin-Williams v. The Greenville Clinic, P.A., 2023-CA-01021-COA (Civil – Med Mal)
Affirming the circuit court’s order granting summary judgment in favor of the defendant, holding that the circuit court did not err in striking portions of the plaintiff’s expert’s testimony and then granting summary judgment based on the lack of expert testimony.
(8-2: McDonald dissented, joined by Westbrooks)

Other Orders

  • Parker v. State, 2023-KA-00550-COA (denying rehearing)
  • Estate of Roberts: Herd v. Stokes, 2023-CA-00713-COA (denying rehearing)
  • Gardner v. State, 2023-KA-00903-COA (denying rehearing)
  • Lawson v. State, 2023-CP-01008-COA (denying rehearing)
  • Jack v. City of Meridian, 2023-CC-01339-COA (denying pro se motion to recall mandate and dismissing motion for rehearing and amended motion for rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of April 1, 2025

The Mississippi Court of Appeals handed down six opinions today. One case is a relatively novel appeal of a chancellor’s decision denying a name-change petition. There is also an MTCA/breach of contract/inverse condemnation case along with a couple of felony appeals and a couple of PCR cases.

Haralson v. State, 2023-CP-01309-COA (Civil – PCR)
Affirming denial of PCR motion challenging revocation of post-release supervision, holding that the trial court did not err in summarily dismissing the motion.
(10-0)

Hatchett v. State, 2024-KA-00100-COA (Criminal – Felony)
Affirming conviction of one count of sexual battery, holding that the conviction was not against the overwhelming weight of the evidence.
(9-0: Emfinger did not participate)

Hulitt v. State, 2024-CA-00182-COA (Civil – PCR)
Affirming dismissal of motion for PCR, holding that the trial court that adjudicated the charged offenses to which he pleaded guilty was a county of venue.
(7-2-0: Westbrooks and McDonald concurred in result only without writing; Emfinger did not participate)

Rogers v. City of Lumberton, 2023-CA-01133-COA (Civil – Property Damage)
Affirming in part and reversing in part the circuit court’s order granting the City’s motion to dismiss, holding that the trial court did not err in dismissing the plaintiff’s negligence claims for non-compliance with the pre-suit notice requirements of the MTCA or in dismissing the breach of contract claim, but that the trial court did err in dismissing the inverse condemnation claim because it was not subject to the pre-suit requirements of the MTCA.
(10-0)

In Re Name Change: Petitioner Yasmine Montia Jones, By and Through Her Guardian and Conservator, John D. K. Taylor, 2023-CA-01343-COA (Civil – Other)
Reversing the chancery court’s decision denying a petition to change the last name of a adult woman with disabilities, holding that the chancellor improperly substituted his judgment for that of the guardian without sufficient evidentiary support.
(8-2: Wilson dissented, joined by Lawrence)

Phinizee v. State, 2023-KA-01090-COA (Criminal – Felony)
Affirming conviction of conspiracy and attempt to commit murder, holding that the conviction for conspiracy to commit murder was supported by sufficient evidence, that the trial court did not err by excluding hearsay testimony that the victim previously attacked the defendant, and that the trial court did not err in refusing the defendant’s requested instruction on the lesser offense of aggravated domestic violence.
(10-0)

Other Orders

  • Pilot Travel Centers, LLC v. Womack, 2023-CA-00035-COA (denying rehearing)
  • Alexander v. State, 2023-KA-00331-COA (denying rehearing)
  • Williams v. State, 2023-KA-00346-COA (denying rehearing)
  • Patton v. State, 2023-CP-00618-COA (denying rehearing)
  • The University of Mississippi Medical Center v. Redd, 2023-CA-00711-COA (denying rehearing)
  • Mallard v. State, 2023-CP-01155-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of March 25, 2025

The Mississippi Court of Appeals handed down eight opinions today. One opinion is an appeal from a hybrid MTCA/common law med mal trial that cites a law journal article I wrote several years ago on an unresolved procedural conundrum. There is also a premises liability summary judgment case, a breach of contract/attorney’s fees case, three direct criminal appeals, and two PCR cases.

Brown v. State, 2023-CA-00921-COA (Civil – PCR)
Affirming denial of PCR, holding that the trial court did not err in summarily dismissing the PCR petition as time-barred.
(10-0)

Foote v. Memorial Hospital at Gulfport, 2023-CA-00504-COA (Civil – Med Mal)
Affirming the circuit court’s judgment in a med mal action against a hospital (a public entity) and a surgeon and the surgeon’s clinic (private entities) after a single, bifurcated bench and jury trial in which the trial court dismissed the claims against the hospital, holding that if the trial court relied on counsel’s closing statements as evidence it was error but harmless because there was sufficient evidence on the point, that the trial court did not err in finding that the plaintiff failed to present a prima facie case that the surgeon proximately caused or contributed to the injuries, and that the plaintiff failed to object to the jury’s involvement in the MTCA claim so the trial court did not err in partially bifurcating the trial where the jury decided the claims against the private defendants and gave an advisory verdict as to the public defendant, and that the trial court did not err in allowing the jury to allocate fault to the public defendant and the finding that the allocation was not supported by substantial evidence.
(7-2-1: Wilson and Emfinger concurred in part and in the result without writing, Lawrence dissented)

NOTE – I was excited to see one of my law review articles cited in this opinion. (If you are so inclined, you can read my article here.) There is no clear guidance from the rules or case law as to how trials should proceed when there a public defendant (entitled to a bench trial under the MTCA) and private defendant (entitled to a jury trial under Mississippi’s constitution, et al). I advocated for a specific procedure in the article that was cited in today’s opinion. In today’s case, the public defendant advocated for the procedure I proposed and the plaintiff argued for a different approach that involved the jury rendering an advisory verdict as to the public defendant. The trial court adopted the plaintiff’s approach. The plaintiff complained about the procedure on appeal, but the Court of Appeals held he could not argue that the trial court erred in following his proposal. Here is the Court of Appeals’ recapitulation of the argument following my proposal:

In 2016, the Rules Committee on Civil Procedure solicited input for a “Mississippi Rules of Civil Procedure Revision Project.” I submitted a proposed amendment to Rule 38 along with a copy of my article:

I never did hear anything back.

Blumer v. Majestic Homes, LLC, 2024-CA-00163-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s order granting summary judgment in favor of a homeowner against a home builder awarding liquidated damages, attoyne’s fees, and expenses, holding that the trial court did not err entering a corrected order granting relief under Rule 60(b) since there had been no judgment expressly adjudicating the remaining claims and that the trial court did not err in dismissing the claims against the home builder in his individual capacity, but that the trial court did err in reducing the award of attorney’s fees.
(9-0: Emfinger did not participate)

Dewberry v. State, 2023-KA-01135-COA (Criminal – Felony)
Affirming conviction of one count of sexual battery, one count of fondling, and one count of child exploitation, holding that the trial court did not err in seating jurors after a Batson challenge and that a jury instruction did not constitute a constructive substantive amendment of a count in the indictment under the plain-error doctrine.
(10-0)

Rodriguez v. Diamondhead Country Club, 2024-CA-00238-COA (Civil – Torts)
Affirming summary judgment in favor of the defendant in a premises liability case, holding that the trial court did not err in finding that a one-half-inch height differential between sidewalk slabs was not a dangerous or unreasonably hazardous condition or in finding that there was no evidence to support a negligence per se claim under the ADA where the plaintiff was not disabled.
(10-0)

Thomas v. State, 2023-KA-00512-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not err in admitting a Facebook post, that the trial court did not err denying a directed verdict under Weathersby, that the conviction was support by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err in denying a motion to suppress the defendant’s statements to law enforcement, that the trial court did not err in admitting autopsy photos, and that the cumulative error doctrine did not apply.
(8-2-0: Emfinger concurred in part and in the result without writing; McDonald concurred in result only without writing)

Rasberry v. State, 2023-KA-01161-COA (Criminal – Felony)
Affirming conviction of failing to register as a sex offender, holding that the lack of specificity in the indictment was at most harmless error, that the trial court did not err by granting an unopposed motion to amend the indictment, and that trial counsel was not ineffective.
(10-0)

Deer v. State, 2024-CP-00019-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the trial court properly dismissed the motion pursuant to the UPCCRA’s three-year statute of limitations.
(9-0: Emfinger did not participate)

Other Orders

  • None

Hand Down Page

Mississippi Court of Appeals Decisions of March 18, 2025

The Mississippi Court of Appeals handed down five opinions on Tuesday. There is something for everybody with a workers’ comp case, an unemployment case, a direct criminal appeal, a premises liability case, and a PCR case.

King v. State, 2023-CA-00770-COA (Civil – PCR)
Reversing the circuit court’s dismissal of the claimant’s motion for PCR wherein he claimed the circuit court improperly revoked probation and participation in drug court and imposed his original suspended sentence, holding that the claimant was statutorily barred from participating in drug court because he was charged with and pleaded guilty to a crime of violence, and since his probation was revoked only twice for violations of drug court conditions, the circuit court lacked authority to impose the full sentence, and remanding with instructions to reinstate the probation.
(5-2-3: Wilson concurred in part and in the result without writing; Emfinger concurred in result only without writing; Lawrence dissented, joined by Weddle and St. Pe’, joined in part by Emfinger)

Porter v. State, 2023-KA-00809-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err in denying a motion to suppress the defendant’s (who was 17 at the time) statements to police, that the defendant had no viable Sixth Amendment claim based on the size and composition of the jury venire without proof that minorities were intentionally or systematically excluded because of their race, that the trial court did not abuse its discretion in limiting the defendant’s attorney’s opening statement, that the trial court did not err in limiting the defendant’s questioning of a witness for impeachment purposes, that the trial court did not err by excluding two character witnesses, that the trial court did not err by refusing the defendant’s lesser-included offense instruction of manslaughter because they had no foundation in the evidence and because a reasonable jury could find the defendant guilty of capital murder, that the trial court did not err by not granting a mistrial for the State’s remarks during closing, and that the trial court did not err by not granting a mistrial when the jury sent out its first note because the defendant did not obtain a ruling and because the assignment was meritless, and that the cumulative error doctrine did not apply.
(8-2-0: Wilson and Westbrooks concurred in result only without separate written opinion)

Animal Rescue Fund of Mississippi v. Mississippi Department of Employment Security, 2024-CC-00152-COA (Civil – State Boards & Agencies)
Affirming an award of unemployment benefits after MDES initially determined that the claimant voluntarily left his employment, holding that the Board of Review’s decision was supported by substantial evidence so the circuit court did not abuse its discretion in affirming it.
(9-1-0: Wilson concurred in part and in the result without writing)

Harris v. Casino Vicksburg, LLC, 2023-CA-00959-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a casino in a premises liability case arising from a chair that slipped out from under the plaintiff, holding that the plaintiff failed to show the existence of a dangerous condition.
(7-3: Westbrooks dissented, joined by Carlton and McDonald)

Caffey v. Forrest Health, 2023-WC-01232-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision reversing the AJ’s finding that the claimant sustained a 50% loss of wage-earning capacity, holding that the though the MWCC erred in its Jordan analysis on whether employment was offered post-MMI the claimant nonetheless did not make a prima facie case under Jordan because he never reported back to work after MMI or under Thompson because there was no evidence the claimant independently searched for employment.
(8-1-1: Wilson concurred in part and in the result without writing; McDonald concurred in part and dissented in part without writing)

Other Orders

  • Ellzey v. State, 2022-KA-00797-COA (denying rehearing)
  • Allred v. Tishomingo County, Mississippi, 2023-CA-00569-COA (denying rehearing)
  • Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (denying rehearing)
  • Sullivant v. Freeland, 2023-CP-01393-COA (granting appelles’ motion for monetary sanctions)

Hand Down Page

Mississippi Court of Appeals Decisions of February 25, 2025

The Mississippi Court of Appeals handed down eight opinions today and a bonus opinion Thursday of last week. There is a notably high reversal rate in these cases. The decision from last Thursday reversed a conviction of capital murder. The eight decisions handed down today cover personal injury, custody, divorce, felony convictions, wills and estates, and PCR with five of them at least reversing the trial court in part.

February 20, 2025

Roncali v. State, 2023-KA-00173-COA (Criminal – Felony)
Reversing conviction of capital murder and remanding for a new trial, holding that the evidence was sufficient to support the verdict but that trial court abused its discretion allowing a State’s expert to testify that the manner of death was homicide from a third person injecting methamphetamine into the victim.
Expert Testimony: 8-2 (Carlton dissented as to this issue, joined by Barnes, Lawrence, and St. Pe’)
Sufficiency of the evidence: 8-2 (Carlton concurred as to this issue, joined by Barnes, Lawrence, and St. Pe’; Westbrooks dissented as to this issue, joined by McDonald and joined in party by McCarty who joined the principal opinion)

February 25, 2025

In the Matter of Disbursement of Real Property Assets to Heir and/or The Sale of Real Property: Montgomery v. Whatley, 2022-CP-00992-COA (Civil – Wills, Trusts & Estates)
Reversing order permitting disbursement of real property one of the decedent’s children, holding that there was insufficient evidence in the record to support the chancellor’s finding that the decedent was the fee simple owner of the tract at issue and remanding to set aside the “Executrix’s Deed” and for further proceedings.
(7-2-0: Westbrooks and McDonald concurred in result only without writing; Lawrence did not participate)

Trehern v. Spivey, 2023-CA-01002-COA (Civil – Custody)
Reversing the chancellor’s custody modification order awarding the father legal and physical custody with no visitation awarded to the mother, holding that the chancellor did not find or identify any material change in circumstances, did not separately assess whether the change was adverse to the child’s welfare, and did not make on-the-record findings as to the Albright factors.
(10-0)

Crump v. State, 2023-CP-00795-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in finding it the motion untimely, successive, and barred by res judicata.
(10-0)

Fairchild v. KS Ocean Springs Real Estate LLC, 2023-CA-00928-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the defendants in a premises liability case, holding that the trial court did not abuse its discretion in striking an affidavit supporting the plaintiff’s opposition as a discovery violation and did not err in finding that there was no evidence that the defendants had actual or constructive knowledge of a dangerous condition.
(9-1-0: Wilson concurred in part and in the result without writing)

Black v. Black, 2023-CA-01098-COA (Civil – Domestic Relations)
Affirming the chancellor’s order modifying custody in favor of the father, holding that the mother’s appeal of the modification judgment was not timely and therefore barred and that the trial court did not err in denying her relief from the judgment under Rule 60(b).
(10-0)

Practice Point – The Court noted that the Rule 60(b) motion filed more than ten days after the judgment does not toll the time for filing an appeal:

Colbert v. Colbert, 2022-CA-01293-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s decision denying the husband’s claim for divorce and granting the wife’s request for separate maintenance and child support, holding that the husband’s argument that the antenuptial agreement bars a grant of separate maintenance was procedurally barred for failure to present it to the trial court but reversing on the child support issue because the chancellor did not make the required findings of fact.
(9-0: St. Pe’ did not participate)

Star v. State, 2023-KA-00788-COA (Civil – Felony)
Affirming in part and reversing/rendering in part after the defendant was convicted of aggravated assault and being a felon in possession of a weapon, holding that the indictment and jury instruction for felon in possession of a weapon were deficient for failing to include the elements and reversing the conviction of felon in possession, but holding that the trial court did not err regarding the aggravated assault jury instruction.
(7-2-1: Wilson concurred in part and in the result without writing; Barnes concurred in result only without writing; Emfinger concurred in part and dissented in part)

Roberts v. Roberts, 2023-CA-00934-COA (Civil – Domestic Relations)
Reversing the chancellor’s equitable division of the marital estate and award of alimony, holding that the chancellor erred in valuing the husband’s business and other assets which required remand on both the equitable division and alimony decisions.
(9-0: Weddle did not participate)

Other Orders

  • Alexander v. Metropolitan Y.M.C.A., 20233-CP-01092-COA (denying rehearing)
  • Magee v. State, 2023-CP-00008-COA (denying rehearing)
  • Chung v. State, 2023-CA-00362-COA (denying rehearing)
  • Doukas v. Kiln Self Storage, 2023-WC-01195-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of February 4, 2025

The Mississippi Court of Appeals handed down five opinions today: four direct criminal appeals and one PCR case. Three of the four criminal cases dealt with jury instruction issues.

Craft v. State, 2023-KA-00915-COA (Criminal – Felony)
Affirming conviction second-degree murder, holding that the verdict was supported by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, and that the trial court did not abuse its discretion in giving instructions on lesser-included offenses for which the defendant was not specifically indicted, and declining to address ineffective-assistance-of-counsel claims on direct appeal.
(8-1-0: Emfinger concurred in part and in result without writing; Carlton did not participate)

Hagan v. State, 2023-KA-00880-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the trial court did not abuse its discretion in refusing the defendant’s lesser-included-offense jury instruction.
(10-0)

Wilson v. State, 2023-CP-01050-COA (Civil – PCR)
Affirming the trial court’s order denying a PCR motions and finding that they were frivolous, successive, time-barred, and barred by res judicata.
(10-0)

Jones v. State, 2022-KA-01124-COA (Criminal – Felony)
Affirming convictions of first-degree murder and felon in possession, holding that the trial court did not err in refusing a heat-of-passion manslaughter instruction or a proposed instruction on the defense of necessity, and finding the pro se arguments that the indictment was insufficient, that habitual offender status was not proven beyond a reasonable doubt, and that the defendant’s Confrontation Clause rights were violated during the sentencing hearing lacked merit.
(8-1-0: McDonald concurs in result only without writing; Lawrence did not participate)

Johnson v. State, 2023-KA-00870-COA (Criminal – Felony)
Affirming conviction of two counts of felon in possession of a firearm, holding that the second felon-in-possession count did not violate double jeopardy because the weapons were acquired at different times and the search and seizure of his the defendant’s vehicle were lawful.
(9-1: McDonald dissented without written opinion)

Other Orders

  • None

Hand Down Page