Tag: PCR

Mississippi Court of Appeals Decisions of March 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. There was nary a dissent, but a conviction of child exploitation was reversed. The are other felony opinions, two divorce cases, a contract case involving a defunct LLC, and a PCR case.

Nunn v. State, 2021-KA-01371-COA (Criminal – Felony)
Affirming conviction of having meth within 1,500 feet of a church, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mental competency evaluation where the trial court twice held a hearing to determine whether the defendant understood and appreciated the significance of the trial proceedings and had the ability to rationally aid in his defense or in denying the defendant’s entrapment instruction.
(10-0)

Singh v. State, 2022-CP-00273-COA (Civil – PCR)
Affirming denial of PCR motion, holding no error in revoking post-release supervision since the plaintiff absconded from supervision.
(10-0)

Williams v. Williams, 2021-CA-00758-COA (Civil – Domestic Relations)
Affirming judgment of divorce, holding that the chancellor’s valuation of the marital residence was based on evidentiary support in the record.
(10-0)

Wakefield v. State, 2021-KA-00187-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder, to kidnapping, and to auto theft, holding:
1. The circuit court had jurisdiction because it sat in one of the counties where the crimes were committed;
2. That the convictions did not violate the Double Jeopardy Clause even though the defendant gave just one car ride because he was an accessory to three distinct felonies so the merger doctrine did not apply;
3. That there was no error based on the weight or sufficiency of the evidence;
4. That the indictment was not defective for failing to include “intent” where it did include “willfully;” and
5. That there was no error in admitting autopsy and crime scene photos.
(8-1-0: McDonald concurred in result only without separate written opinion; Emfinger did not participate)

NOTE – These convictions stemmed from the kidnapping and murder of six-year-old Kingston Frazier in 2017.

Holmes v. Lankford, 2022-CA-00203-COA (Civil – Contract)
Affirming summary judgment for the defendant in a dispute over a sand and gravel operation agreement, holding that the plaintiff did not have standing to enforce the agreement that was between the defendant and the plaintiff’s administratively dissolved LLC and that the plaintiff did not otherwise show he was entitled to relief.
(10-0)

NOTE – Conducting business through an LLC can cut both ways:

Mason v. State, 2021-KA-00964-COA (Criminal – Felony)
Reversing conviction of child exploitation, holding that the trial court erred in denying funds for an independent computer forensics expert because the State’s witness/detective should have been considered an expert and that this error hindered the defendant’s jurisdictional challenge and led to evidentiary errors that contributed to an unfair trial.
(7-3-0: Wilson, Smith, and Emfinger concurred in part and in the result)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Modified opinion on motion for rehearing affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(9-0)

Other Orders

Hornsby v. Hornsby, 2020-CA-01091-COA (dismissing motion for attorney’s fees)

Blount v. State, 2021-KA-00204-COA (denying rehearing)

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (granting pro se motion for extension of time to file motion for rehearing and recalling mandate)

Easterling v. State, 2022-CA-00796-COA (vacating circuit court’s order and rendering judgment dismissing motion for PCR)

Hunter v. State, 2022-TS-01269-COA (dismissing appeal as untimely)

Hand Down List

Mississippi Court of Appeals Decisions of February 28, 2023

The Mississippi Court of Appeals handed down three opinions today. Two are domestic relations cases: one dealing with child support and the other primarily dealing with custody. The third decisions is a PCR case.

Everett v. State, 2021-CP-01415-COA (Civil – PCR)
Affirming summary denial of a motion for PCR alleging an illegal sentence, holding no error because the sentence imposed was the maximum punishment authorized by statute at the time.
(7-2-0: Westbrooks and McDonald concurred in result only; Smith did not participate)

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White v. White, 2021-CA-01074-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision ordering past-due child support for the period of time from when the parties’ youngest child turned 18 until she turned 21, holding that there was no evidence presented that the child was emancipated before turning 21.
(10-0)

Latham v. Latham, 2022-CA-00363-COA (Civil – Domestic Relations)
Affirming chancellor’s divorce judgment, holding that the chancellor did not err in the application of the Albright factors or in finding that one party did not provide a financial disclosure to the court.
(9-1-0: McCarty concurred in part and in the result without separate written opinion)

Other Orders

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (denying rehearing)

Wallace v. State, 2021-CP-01149-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of February 21, 2023

The Mississippi Court of Appeals handed down seven opinions yesterday and I have just now been able to sit down and make it through them. These opinions include a wrongful-death MTCA claim, a complaint for public records, two wills and estates cases, and some PCR thrown in the mix.

Humphrey v. Steve Holts, 2021-CA-00046-COA (Civil – Other)
Reversing the chancery court’s order dismissing a complaint for public records and quashing subpoenas, holding that the chancellor erred in dismissing the complaint without an evidentiary hearing to examine the records at issue and remanding for an evidentiary hearing.
(9-1-0: Smith concurred in part and in the result without separate written opinion.)

Baker v. State, 2021-CP-01277-COA (Civil – PCR)
Affirming summary denial of a verified motion for PCR, holding that the trial court did not err in finding that the indictment properly charged the plaintiff with burglary of a dwelling.
(9-1-0: Westbrooks concurred in result only without separate written opinion.)

Avery v. Estate of Eric Lane Avery, 2022-CP-00163-COA (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s order closing the estate, holding that the chancery court did not err in closing the estate without proceeding on a request to amend the death certificate and that there was no evidence that the daughter/beneficiary willfully, knowingly, or intentionally killed her father.
(10-0)

Buchanan v. Hope Federal Credit Union, 2021-CA-00218-COA (Civil – Other)
Affirming the circuit court’s order denying a motion to transfer venue in an action to confirm an arbitration award, holding that the failure to tender required payment at the designated address was a “substantial omission” that made the county where the payment was to be made a permissible venue.
(6-2-1: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion; McDonald concurred in part and dissented in part; Emfinger did not participate.)

Maxwell v. Panola County, Mississippi, 2021-CA-01001-COA (Civil – Wrongful Death)
Affirming a defense verdict in an MTCA lawsuit stemming from a double-fatality car crash with a sheriff’s deputy, holding that whether the deputy acted with reckless disregard when he ran a stop sign immediately before the collision was a question of fact and substantial evidence supported the trial court’s finding that it was not more than simple negligence.
(9-1-0: McDonald concurred in result only without separate written opinion.)

Buchanan v. State, 2021-CP-01069-COA (Civil – PCR)
Affirming motion for PCR challenging the revocation of post-release supervision, holding that the circuit court did not err in ruling that the plaintiff’s due process rights were not violated and that the plaintiff’s laches argument was both waived and meritless.
(10-0)

Estate of Charles James Bell v. Estate of Sarah Dell Mann Bell, 2021-CA-00789-COA (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s enforcement of an antenuptial agreement, holding that the chancery court did not err in determining that the antenuptial agreement was not a testamentary document that the wife revoked by a subsequent will, was supported by consideration, and was not substantively unconscionable, and that the husband waived his statutory right to renounce the wife’s will.
(6-1-3: Wilson concurred in part and in the result without separate written opinion; McDonald dissented, joined by Barnes and Westbrooks.)

Other Orders

Arrington v. Anderson, 2021-CA-00233-COA (denying rehearing)

Belmer v. State, 2021-CP-00410-COA (denying rehearing)

Jarvis v. State, 2021-CP-00930-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of February 16, 2023

The Mississippi Supreme Court handed down one opinion today, along with several orders including the suspension of a municipal court judge for abuse of power.

Garcia v. State, 2020-DR-01224-SCT (Civil – PCR)
Affirming denial of PCR motion, holding that even under heightened scrutiny due in capital cases the plaintiff did not present a substantial showing that he was denied the right to effective assistance of counsel for not pursuing and presenting fetal alcohol syndrome disorder as a mitigating factor, for not presenting and explaining all mitigating evidence, or for not developing and presenting evidence that the defendant was under the substantial domination of another person.
(6-3-0: Kitchens concurred in part and in the result, joined by King and Ishee and joined in part by Coleman)

Other Orders

Cooper v. State, 2018-M-01124 (denying PCR motion)

Gilmer v. McRae, 2021-CA-00028-SCT (granting appellees’ motion for fees and costs)

Mississippi Commission on Judicial Performance v. Municipal Court Judge Carlos E. Moore, 2022-JP-00504-SCT (suspending respondent from office without pay for sixty days from his position as municipal judge for both Grenada and Clarksdale, ordering public reprimand in each county, and ordering a $1,500 fine)

Yates Services, LLC v. Hill, 2022-M-00879-SCT (denying petition for interlocutory appeal)

Hawkins v. State, 2022-M-01131 (denying application for leave to proceed in trial court, finding the application frivolous, and warning against future frivolous filings)

Hand Down List

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Court of Appeals Decisions of January 31, 2023

The Mississippi Court of Appeals handed down three opinions today. Two affirm felony convictions and one is a PCR dismissal. One of the criminal cases contains a robust Confrontation Clause discussion between the majority and the dissent.

Williams v. State, 2022-KA-00100-COA (Criminal – Felony)
Affirming conviction for armed robbery, holding that there was no reversible error in admitting testimony from a detective that was not objected to and that neither the failure to object to that or defense counsel’s cross-examination of the detective constituted ineffective assistance.
(7-3-0: Judge Wilson, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion)

McConn v. State, 2021-CP-00431-COA (Civil – PCR)
Affirming denial of PCR motion asserting ineffective assistance, holding that the trial court did not err in summarily dismissing the motion that was supported only by the movant’s affidavit and an immaterial affidavit and was contradicted by the record.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion)

Pitts v. State, 2021-KA-00740-COA (Criminal – Felony)
Affirming conviction of sexual battery of his minor daughter, holding that placing a screen between the child and the defendant during the child’s testimony did not violate the Confrontation Clause or the Due Process Clause where the defendant was able to observe the child via camera during the entirety of her testimony; the trial court did not err in excluding the testimony of the defendant’s expert witnesses where their disclosure was untimely or in allowing the testimony under the tender-years exception; and there was no cumulative error.
(6-1-2: Judge McDonald concurred in part and in the result without separate written opinion; Judge Wilson dissented, joined by Judge Westbrooks and joined in part by Judge McDonald. Judge Emfinger did not participate.)

NOTE – The dissent argued that the use of the screen was a violation of the Confrontation Clause:

Other Orders

Burns v. State, 2021-KA-00310-COA (denying rehearing)

Wilson v. State, 2021-KA-00608-COA (denying rehearing)

Loblolly Properties, LLC v. Le Papillon Homeowner’s Association Inc., 2021-CA-00767-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of January 26, 2023

The Mississippi Supreme Court handed down just one opinion today, but it was a significant decision in the PCR arena. Of great interest to civil practitioners, the Supreme Court also amended Rule 37 and Rule 45 of the Mississippi Rules of Civil Procedure. The amendments to Rule 45 should make life easier, especially for paralegals and the circuit clerks’ offices.

Howell v. State, 2020-CA-00868-SCT (Civil – PCR)
Affirming denial of a motion for PCR, overruling Rowland and holding that the plaintiff could not overcome the statute of limitations bar by asserting a fundamental-rights exception and holding that the petition otherwise lacked merit.
(7-3: Justice Kitchens dissented, joined by Justice King and Justice Ishee)

NOTE – Here is the language overruling Rowland:

ANOTHER NOTE – When both the majority and dissent cite Newell v. State you know its a classic, Mississippi separation of powers throw-down.

In Re: The Rules of Civil Procedure, 89-R-99001-SCT
Amending Rule 37 and Rule 45 of the Mississippi Rules of Civil Procedure. Both amendments will impact civil practice and need to be studied and accounted for once they take effect. The big news from my perspective is that the amended Rule 45 provides a mechanism for attorneys to issue subpoenas in their cases not unlike the federal court rule. See the text of the amended rule and comment below for the details.

Here is the En Banc Order with the amended Rule 37 attached:

700_6149651Download

Here is the same for Rule 45:

700_6151791Download

Other Orders

Butler v. State, 2020-CT-00806-SCT (dismissing cert that had previously been granted)

Nelson v. State, 2020-M-01417 (denying application for leave to proceed in the trial court, finding it frivolous, and restricting the petitioner from filing further PCR petitions in forma pauperis)

Camphor v. State, 2021-CT-00048-SCT (denying cert)

Fisher v. State, 2021-KA-00828-SCT (denying rehearing)

Anderson v. State, 2022-M-00582 (denying motion for PCR, finding it frivolous, and warning against future frivolous filings)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-00001-SCT (directing the disbursement of $148,438.33 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

Hand Down List

Mississippi Court of Appeals Decisions of January 24, 2023

The Court of Appeals handed down six opinions today. Three criminal cases and three PCR cases. I don’t anticipate any of the PCR cases today drawing the sort of attention the Hathorn case drew last week.

Wells v. State, 2021-KA-00747-COA (Civil – Felony)
Affirming conviction for sale of meth, holding that testimony from a confidential informant about the defendant’s past drug selling activity was elicited by defense counsel on cross and not purposeful elicited by the DA and that it was not error to refuse the defendant’s preferred instruction on weighing confidential informant testimony.
(10-0)

Note – Pithy introductory paragraphs like this could put me out of business:

Thomas v. State, 2021-CP-00060-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the sentence was not illegal, that there was a sufficient factual basis for the kidnapping plea, that the retroactive competency hearing was adequate and proper, and that there was no error in finding the plaintiff competent.
(7-3-0: Judge Wilson, Judge Smith, and Judge Emfinger concurred in part and in the judgment without separate written opinion)

Green v. State, 2021-CP-01299-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the claims were barred by the doctrine of res judicata and the three-year statement of limitations, and the motion was an impermissible successive motion.
(9-0: Judge Lawrence did not participate)

Bradley v. State, 2022-CP-00173-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the motion was both successive and time-barred.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Melendez v. State, 2021-KA-00775-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the evidence was sufficient to support the verdict, dismissing the ineffective assistance claim without prejudice, and holding that the trial court did not abuse its discretion in giving a flight instruction.
(10-0)

Alford v. State, 2022-KA-00025-COA (Criminal – Felony)
Affirming conviction of trafficking meth with intent to distribute and possession of marijuana with intent to distribute, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence.
(5-5-0: Judge Wilson, Judge McDonald, Judge Lawrence, and Judge McCarty concurred in part and in the result; Judge Westbrooks concurred in the result only without separate written opinion.)

Other Orders

Nguyen v. Bui, 2021-CP-00548-COA (granting appellee’s motion for appellate attorney’s fees) (don’t get excited, they were contractual fees)

Wallace v. State, 2021-CP-01149-COA (recalling mandate and accepting pro se motion for rehearing as timely)

Hendrix v. State, 2022-TS-01217-COA (dismissing appeal for want of appealable judgment)

Hand Down List

Mississippi Court of Appeals Decisions of January 17, 2023

The Mississippi Court of Appeals handed down seven opinions today. There are several criminal cases, a reversal of summary judgment in a slip and fall case, an arbitration denial, and several PCR cases.

Jones v. State, 2021-KA-01263-COA (Criminal – Felony)
Affirming conviction of capital murder, holding the trial court did not err in denying a mistrial after a prospective juror mentioned the defendant’s past wrongdoing, that the verdict was based on sufficient evidence and not against the weight of the evidence, and that the ineffective assistance of counsel claim could not be appropriately addressed on direct appeal and denying the issue without prejudice.
(10-0)

Creel v. State, 2021-CP-00977-COA (Civil – PCR)
Affirming dismissal of a motion for PCR, holding that the plaintiff was properly sentenced under the statute in place at the time of his offenses and that his guilty pleas were entered knowingly, intelligently, and voluntarily.
(9-0: Judge Emfinger did not participate)

Smith v. State, 2021-CA-01259-COA (Civil – PCR)
Affirming the denial of a motion for PCR without evidentiary hearing, holding that the plaintiff’s guilty pleas were knowingly, intelligently, and voluntarily given, and that the trial court did not err in ruling without an evidentiary hearing.
(9-0: Judge Smith did not participate)

Anderson v. State, 2021-KA-01340-COA (Criminal – Felony)
Affirming conviction of burglary, holding that the trial court did not commit reversible error by admitting evidence of crimes in other counties under Rule 404(b) and that there was no merit to the ineffective assistance of counsel claims based on lack of objections to hearsay.
(9-1-0: Judge McCarty concurred in part and in the result without separate written opinion)

Hathorne v. State, 2021-CA-00306-COA (Civil – PCR)
Affirming denial of a motion for PCR, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred.
(2-4-4: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Lawrence and Judge Smith concurred in the result only; Judge McCarty dissented, joined by Judge Carlton, Judge Westbrooks, and Judge McDonald)

Brooks v. Jeffreys, 2021-CA-01113-COA (Civil – Personal Injury)
Reversing summary judgment in favor of a defendant in a slip and fall case, holding that there were genuine issues of material fact as to whether the cleaning company breached the duty of care where the plaintiff slipped and fell on the floor of her residence that was actively being mopped when she slipped.
(9-1: Judge Greenlee concurred in part and dissented in part without separate written opinion)

NOTE – Because the plaintiff slipped and fell in her own residence that was being cleaned by the defendant, the Court of Appeals analyzed this is a general negligence action and not a premises liability case.

Liberty National Life Insurance Company v. Hancock, 2021-CA-00605-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration, holding that where a life insurance policy was voluntarily entered into, cancelled, and then reinstated via forgery of the insured’s signature, the arbitration agreement in the policy was not enforceable.
(6-4: Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Wilson, and Judge Greenlee)

Other Orders

$153,340.00 v. State, 2020-CA-01409-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of January 3, 2023

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)

Hand Down List