Tag: Personal Injury

Mississippi Court of Appeals Decisions of September 3, 2024 and September 10, 2024

The Mississippi Court of Appeals handed down six opinions last week and three opinions this week. Since I was out of the office last Tuesday I included last week’s cases in this post. Between the two dates there there are a couple of service-of-process cases, a few personal injury cases, a couple of domestic relations cases, direct criminal appeals, and a two PCR cases. Appellants prevailed in all three of today’s cases.

September 3, 2024

Havard v. Hart, 2023-CA-00260-COA (Civil – Personal Injury)
Affirming dismissal for insufficient service of process, holding that there was substantial evidence supporting the trial court’s finding that the defendant had not been properly served and that the plaintiff did not have good cause for failing to timely serve process.
(8-1-0: McDonald concurred in result only without writing)

Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (Civil – Other)
Dismissing appeal of order denying a motion to reinstate an order obtaining expunging a contractor’s lien, holding that the initial order expunging the lien was not a final appealable order and that subsequent orders on motions revising the interim order were not final either.
(8-1-0: Wilson concurred in part and in the result without writing)

Hyland v. State, 2023-CA-00256-COA (Civil – PCR)
Affirming the trial court’s dismissal of PCR motion challenging his convictions and seeking an out-of-time appeal, holding that motion was time-barred and successive.
(9-0)

Fortner v. Bratcher, 2023-CP-00664-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings related to motions for contempt and custody modification, holding that the chancellor did not abuse his discretion finding the father in contempt, carrying forward the parties’ agreed visitation schedule, or enjoining the parties from contacting CPS with allegations of neglect or abuse without first contacting local law enforcement.
(9-0)

Miller v. State, 2023-CP-00812-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that it was barred by the UPCCRA’s statute of limitations.
(9-0)

Wilkerson v. Allred, 2023-CA-00393-COA (Civil – Personal Injury)
Reversing the trial court’s grant of summary judgment dismissing claims for emotional distress damage after the defendant shot and killed the plaintiff’s puppy in the head as it sat next to the plaintiff’s twelve-year-old sister, holding that there was a jury question on the issue of whether the plaintiff’s emotional distress injuries were reasonably foreseeable to the defendant.
(4-3-2: Wilson and McDonald concurred in part and in the result without writing; Westbrooks concurred in the result only without writing; Carlson dissented, joined by Emfinger and joined in part by McDonald.)

September 10, 2024

Bell v. State, 2023-CA-00951-COA (Criminal – Felony)
Vacating and remanding revocation of a suspended sentence, holding that the trial judge was automatically disqualified because she had previously served as the ADA for the underlying conviction.
(7-2: Barnes dissented, joined by Wilson)

Wells v. Wells, 2023-CA-00674-COA (Civil – Domestic Relations)
Reversing the chancery court’s judgment granting the wife’s petition for divorce and divesting the husband of his interest in real property, holding that there was no evidence that the husband was properly served.
(4-1-4: Emfinger concurred in part and in the result without writing; Wilson dissented, joined by Barnes, Lawrence and Smith.)

Deere v. Taylor, 2023-CA-00063-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit, holding that the prohibition against claim-splitting was not triggered where the plaintiff filed one lawsuit but was unable to serve the defendants and months later filed a second lawsuit asserting the same causes of action against the same parties while the first lawsuit sat stale.

Other Orders

  • Daly v. Raines, 2022-CT-00600-SCT (denying appellant’s to voluntarily dismiss this appeal)
  • McKenzie v. McKenzie, 2022-CA-01175-COA (denying rehearing)
  • Estate of Staten: Staten v. Pedersen, 2023-CA-00228-COA (denying untimely motion tor additional time to file a motion for rehearing)
  • Stewart v. State, 2024-TS-00606-COA (dismissing appeal as untimely)

September 3, 2024 Hand Down Page

September 10, 2024 Hand Down Page

Mississippi Court of Appeals Decisions of August 20, 2024

The Mississippi Court of Appeals handed down nine opinions today. There are several direct criminal appeals, a personal injury case, and two real property cases.

Allen v. State, 2023-KA-00264-COA (Criminal – Felony)
Affirming conviction of armed robbery, kidnapping, and aggravated assault with firearm enhancement, holding that there were no issues warranting reversal after reviewing counsel’s Lindsey brief and the record.
(9-0)

Aldridge v. South Tippah County School District, 2023-CA-00418-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a high school in a personal injury case, holding that there was no evidence that the school breached any duty that proximately caused student’s injuries sustained in a locker room fight.
(6-3: McDonald concurred in part and dissented in part without writing; Carlton dissented, joined by Westbrooks, and joined in part by McDonald)

Galang v. State, 2023-KA-00006-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the trial court did not abuse its discretion in excluding videos from past sexual activity between the defendant and the victim or and that excluding a defense witness’s testimony for which no proffer was made was at most harmless error.
(9-0)

Connor v. State, 2022-KA-01288-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence.
(9-0)

Howell v. State, 2023-KM-00265-COA (Criminal – Misdemeanor) consolidated with 2023-KM-00270 (Criminal – Misdemeanor)
Affirming convictions of speeding and driving without a tag, holding that the evidence was sufficient and that the trial court did not abuse its discretion in not accepting the defendant’s father as an expert in the field of radar technology.
(8-1-0: Westbrooks concurred in result only without separate written opinion)

Note – Here is the trial court’s voir dire of the defendant’s father:

Trevino v. State, 2022-KA-01292-COA (Criminal – Felony)
Affirming conviction of aggravated assault and felon in possession of a weapon but reversing conviction of theft of a motor vehicle with a value of more than $5,000 and $25,000, holding that the State failed to offer any evidence of the stolen truck’s value (an error the State confessed) and rendering since the State did not argue for remand and resentencing for any lesser-included offense.
(9-0)

Brown v. State, 2023-KA-00299-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon, holding that section 97-37-5 does not violate the Second Amendment since the Mississippi Supreme Court has already said so.
(9-0)

Wiggs v. Boykin, 2023-CA-00496-COA (Civil – Real Property)
Affirming order of partition and award of an equitable adjustment resulting from the partition, holding that the defendant waived his argument that the petitioner failed to provide sufficient deraignments by not filing a Rule 12(e) motion for a more definite statement, that the chancellor’s determination of the amount of owelty was supported by substantial credible evidence, and that the chancellor did not abuse his discretion in denying the motion for new trial.
(9-0)

Richardson v. Estate of Richardson, 2023-CA-00650-COA (Civil – Real Property)
Affirming the chancellor’s grant of summary judgment for the Estate in a petition to confirm title and expunging liens from the county’s records, holding that the court of appeals’ prior mandate did not create a debtor-creditor relationship between the decedent and the petitioner and that there is no evidence of an enrolled money judgment that would provide the basis for the liens on the decedent’s property.
(9-0)

Other Orders

  • Collins v. Collins, 2022-CA-00903-COA (denying rehearing)
  • McLellan v. McLellan, 2022-CA-01006-COA (denying rehearing)
  • Lee v. City of Pascagoula, 2022-CA-01190-COA (denying rehearing)
  • Suarez v. State, 2023-KA-00526-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of June 4, 2024

The Mississippi Court of Appeals handed down eight opinions today. There is a paternity/child support case, a custody/termination of parental rights case, an MTCA personal injury case, a contract case, a slip-and-fall summary judgment, and three direct criminal appeals.

Myles v. Lewis, 2022-CA-01192-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s rulings in a paternity action, holding that the chancellor erred in computing monthly child support by failing to account for the father’s significant income increase and personal withdrawals, inaccuracies in his financial statement, and admitted commingling of personal and business expenses; holding that the chancellor did not err in not requiring the father to pay half of the child’s private school tuition, insurance premiums, and extracurricular fees; and holding that no party was entitled attorney’s fees.
(9-1-0: Wilson concurred in part and in result without writing)

Lemay v. City of Biloxi, 2023-CA-00469-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the City in an MTCA case stemming from a collision with a police officer, holding that although the trial court incorrectly ruled that the plaintiff was precluded from recovery because she was allegedly speeding, the summary judgment should affirmed because the undisputed evidence showed the officer was engaged in police protection activity and that he did not act with reckless disregard.
(7-2-0: Carlton and Wilson concurred in part and in the result without writing; Lawrence did not participate)

Hattie T. v. Matthew R., 2022-CP-00926-COA (Civil – Custody)
Affirming the chancery court’s final judgment terminating parental rights, holding that the chancellor did not err in denying the mother’s motion to dismiss and that the chancellor’s decision terminating parental rights was supported by clear and convincing evidence and was in the best interests of the children.
(10-0)

Collins v. State, 2022-KA-01184-COA (Criminal – Felony)
Affirming convictions of kidnapping, armed robbery, armed carjacking, aggravated assault, conspiracy to commit kidnapping, and conspiracy to commit armed robbery, holding that the circuit court did not abuse its discretion in admitting evidence of other acts and crimes coupled with a limiting instruction, in excluding evidence of the defendant’s assault in prison by two witnesses, or in refusing the defendant’s instructions on lesser included instruction.
(7-2-0: McCarty concurred in part and in the result without writing; Westbrooks and McDonald concurred in result only without writing)

Terry v. State, 2022-KA-01194-COA, consolidated with Thomas v. State, 2022-KA-01278-COA (Criminal – Felony)
Affirming convictions of two defendants (Terry and Thomas) for first-degree murder and drive-by shooting, holding that though the trial court abused its discretion in admitting surveillance video the error was harmless, that Terry’s conviction was not against the overwhelming weight of the evidence, that the trial court did not abuse its discretion in admitting text messages because they were not hearsay.
(10-0)

Designer Custom Homes, LLC v. U.S. Coating Specialties & Supplies, LLC, 2023-CA-00207-COA (Civil – Contract)
Reversing the circuit court’s reversal of the county court’s order granting summary judgment in favor of the plaintiff in a breach of contract case, holding that the circuit court erred by reversing on an issue and argument that were not raised in the county court or briefed on appeal and erred by finding that there was evidence in the record that presented a genuine issue of material fact.
(10-0)

Practice Point – Don’t rehash your trial court pleadings on appeal:

If the appeal process is daunting or simply pulling you away from other work you would rather do, your friendly neighborhood appellate attorney would love to visit with you about it.

Anderson v. SW Gaming LLC, 2023-CA-00345-COA (Civil – Personal Injury)
Affirming summary judgment for the defendant in a slip-and-fall case, holding that there was no evidence that the defendant caused water on the floor in the bathroom or that the defendant had either actual or constructive knowledge that there was water on the floor.
(10-0)

Harrera v. State, 2022-KA-01167-COA (Criminal – Felony)
Affirming conviction of one count of kidnapping, holding that the conviction was supported by sufficient evidence, that the kidnapping instruction did not constructively amend the indictment (an issue that was procedurally barred and without merit), and that the trial court did not err by giving the State’s accomplice liability instruction.
(9-1-0: Westbrooks concurred in result only without writing)

Other Orders

  • Allen v. State, 2022-KA-00419-COA (denying rehearing)
  • Minor v. State, 2022-KA-00990-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of May 21, 2024

The Mississippi Court of Appeals handed down a bounty of twelve opinions yesterday. I noticed a stray opinion from Thursday, May 9 so that is also summarized below. With a total of thirteen opinions, there is a lot of ground covered.

Martin v. State, 2023-KA-00044-COA (Criminal – Felony)
Affirming conviction of aggravated assault and armed robbery after a trial in absentia, holding that the verdicts were not against the overwhelming weight of the evidence.
(10-0)

Tilley v. Gibbs, 2022-CA-01150-COA (Civil – Domestic Relations)
Affirming judgment awarding physical custody of a child to the father, holding that the chancellor did not err in his Albright analysis and that substantial, credible evidence supported the custody determination.
(10-0)

Hamer v. State, 023-CP-00701-COA (Civil – PCR)
Affirming denial of relief and dismissal of PCR motion without an evidentiary hearing, holding that the PCR motion lacked sufficient support to warrant a evidentiary hearing.
(8-2-0: Westbrooks and McDonald concurred in result only without writing)

McVay v. State, 2022-KA-00523-COA (Criminal – Felony)
Affirming conviction of four counts of capital murder and one count of possession of a firearm by a felon, holding that the trial court did not commit plain error in admitting evidence of prior bad acts during cross-examination of the defendant and holding that the defendant’s trial counsel was not constitutionally ineffective for failing to object.
(7-2-0: Wilson and Westbrooks concurred in result only without separate written opinion; Carlton did not participate)

Jackson v. State, 2022-KA-01143-COA (Criminal – Felony)
Affirming conviction of first-degree murder and burglary and sentence to life without eligibility for early release, probation, or parole, holding that the indictment was not fatally defective; that there was no plain error in denying a motion to suppress the defendant’s statements to law enforcement where the defendant made a knowing, intelligent, and voluntary waiver of Miranda; that the trial court did not err in refusing the defendant’s proposed insanity defense and imperfect self-defense instructions; and that the verdicts were not against the overwhelming weight of the evidence.
(8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)

Practice Point – This is a handy citation to tuck away for one of those “I know its true by I can’t find a case that says so” situations:

Thompson v. State, 2023-CP-00218-COA (Civil – PCR)
Affirming dismissal of the petitioner’s fourth and fifth PCR motions, holding that the circuit court did not err in finding them time-barred.
(10-0)

Smith v. West, 2023-CA-00297-COA (Civil – Personal Injury)
Affirming dismissal for failure to prosecute a personal injury case, holding that the trial court did not abuse its discretion after granting several continuances over nearly ten years since the action was commenced.
(10-0)

Signaigo v. Grinstead, 2022-CA-01212-COA (Civil – Real Property)
Affirming in part and reversing in part the chancellor’s rulings in an adverse possession action, affirming the finding that the plaintiff could not prove the ownership element but reversing the finding that title was vested in the defendant as a matter of law because that issue was beyond the scope of the motion for summary judgment.
(8-2-0: Wilson and Westbrooks concurred in result only without writing)

McKenzie v. McKenzie, 2022-CA-01175-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings in a divorce proceeding, holding that the chancellor did not err in the equitable division of marital property, in determining the amount of child support, in determining the amount of alimony, or in denying the mother’s request for attorney’s fees.
(9-0: Smith did not participate)

Carr v. State, 2022-KA-00491-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the State did not commit prosecutorial misconduct during closing arguments such that the court was required to intervene on its own initiative.
(10-0)

Pickens v. State, 2022-KA-00822-COA (Criminal – Felony)
Affirming conviction of meth while in possession of a firearm, holding that after reviewing counsel’s Lindsey brief and independently reviewing the record that there were no errors warranting reversal.
(10-0)

Hearn v. State, 2023-CP-00275-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in finding the motion time-barred and that no statutory exceptions applied.
(9-0: Smith did not participate)

From May 9, 2024

Daniels v. State, 2022-KA-00705-COA (Criminal – Felony)
Affirming in part and reversing in part after the the defendant was convicted of one count of manslaughter as a lesser-included offense of murder, three counts of aggravated assault, and one count of shooting into an occupied dwelling, holding that indictment’s error as to the count for murder was harmless so the conviction of the lesser-included offense of manslaughter was affirmed but holding that the indictment was legally insufficient as to aggravated assault counts and that the error was compounded by repetition in jury instructions and the State’s closing arguments.
4-1*-5: Westbrooks specially concurred, joined by McDonald, Lawrence and Smith (each of whom also joined the lead opinion); Emfinger concurred in part and dissented in part, joined by Barnes, Carlton, Wilson, and McCarty.)

Other Orders

  • Arnold v. State, 2021-KA-01426-COA (denying rehearing)
  • Rutland v. Regions Bank, 2022-CA-00720-COA (denying rehearing)
  • Malone v. State, 2022-CP-00958-COA (denying rehearing)
  • Boyett v. Cain, 2022-CP-00978-COA (denying rehearing)
  • EEECHO Inc. v. Mississippi Environmental Quality Permit Board, 2022-SA-01068-COA (denying rehearing)
  • Boyette v. State, 2022-CP-01239-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of March 12, 2024

The Mississippi Court of Appeals handed down nine opinions yesterday with something for just about everyone. Read on to find yours.

Estate of Douglas v. Green, 2022-CA-00365-COA (Civil – Wills, Trusts & Estates)
Affirming on direct appeal and cross appeal in an ongoing estate saga, holding that the argument that interest should have been awarded on the return of insurance proceeds was procedurally barred, the limited award of attorney’s fees was within the trial court’s discretion, the trial court did not abuse its discretion in declining to order the return funds to a joint account, and the cross-appeal was procedurally barred because it did not provide any legal support.
(9-1-0: Wilson concurred in result only without separate written opinion)

Stewart v. Stewart, 2022-CA-01122-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision on the father’s motion to modify or terminate child support, holding that the father’s obligation to pay for college under the PSA extended past the children turning 21.
(10-0)

White v. White, 2022-CP-00823-COA (Civil – Real Property)
Affirming in part and reversing in part a chancellor’s decision imposing a constructive trust and ordering the transfer of a parcel of property, reversing the chancery court’s order in limine restricting the defendant from proving affirmative defenses asserted in his answer to the initial complaint and vacating the final judgment imposing a constructive trust, while also affirming the chancery court’s determination that some of the defendant’s payments were voluntary but reversing the determination that all of the payments were voluntary.
(8-2-0: Carlton and Wilson concurred in result only without separate written opinion)

Johnson v. State, 2022-KA-00920-COA (Criminal – Felony)
Affirming conviction of one count of possession of methamphetamine and one count of trafficking Vyvanse, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence.
(8-2-0: McCarty concurred in part and in the result without separate written opinion; Westbrooks concurred in result only without separate written opinion)

Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision denying benefits, holding that there was substantial evidence to support the MWCC’s finding that the claimant was a traveling employee but that he was not in the course of his employment when he was returning to work after a personal, unauthorized mid-week trip home.
(6-4: Carlton dissented, joined by Lawrence, McCarty, and Smith)

Practice Point – This is a friendly reminder that “course and scope” is not the test for workers’ comp cases. The MWCA casts a wider compensability net than “course and scope.” Generally, compensation must be paid for injuries “arising out of and in the course of employment.” Miss. Code Ann. § 71-3-7.

Bell v. State, 2023-CP-00631-COA (Civil – Other)
Affirming the circuit court’s denial of a petition for expungement, holding that the circuit court did not abuse its discretion because the petitioner failed to present evidence any evidence that he had been rehabilitated.
(8-2-0: Lawrence and Smith concurred in result only without separate written opinion)

Nettles v. Nettles, 2023-CA-00041-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision granting the husband’s motion for involuntary dismissal, holding that the chancellor did not err in finding that the wife did not prove that she was entitled to a divorce based on habitual cruel and inhuman treatment by a preponderance of the evidence.
(6-4: Carlton, Westbrooks, McDonald, and Lawrence dissented without seprate written opinion)

Loving v. MS Eye Care, P.A., 2023-CA-00566-COA (Civil – Personal Injury)
Affirming summary judgment in a premises liability case, holding that there was no evidence that the chair the plaintiff fell backwards on was defective or unreasonably dangerous.
(9-0: Wilson did not participate)

Blackwell v. Reed, 2022-CP-01037-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision denying the ex-husband’s ppetition to terminate or modify alimony, holding that the issues were procedurally barred for failure to cite legal authority or relevant parts of the record and that the appeal otherwise lacked merit.
(10-0)

Other Orders

Kirk v. Newton, 2021-CT-00683-COA (denying motion to amend judgment)

Havercome v. State, 2022-CA-00391-COA (denying rehearing)

Phillips v. MDOC, 2022-SA-00392-COA (denying rehearing)

Agee v. State, 2022-KA-00994-COA (denying pro se “request to proceed with petition for rehearing” and dismissing pro se “request to proceed with petition for post-conviction relief”)

Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (denying rehearing)

Lawson v. State, 2023-TS-01384-COA (dismissing appeal)

Gates v. State, 2024-TS-00074-COA (allowing appeal to proceed upon finding that show-cause response was well taken)

Hand Down List

Mississippi Court of Appeals Decisions of March 5, 2024

I’m back. Again. I would like to think I will go back and summarize the last few weeks that I have missed but that is probably water under the bridge at this point. Pressing forward, the Mississippi Court of Appeals handed down seven opinions today. These decisions cover custody, felonies, personal injury, unemployment, and zoning. Notably, two criminal convictions were reversed.

Patrick v. Patrick, 2021-CA-00891-COA (Civil – Custody)
Affirming the chancery court’s denial of the mother’s petition for contempt and modification and granting the father’s motion for modification, holding that the issue of custody was clearly before the chancellor who properly determined that there was a material change in circumstances that adversely affected the children, conducted a proper Albright analysis, and was within his discretion to order a change in legal and physical custody.
(8-1-1: McCarty concurred in part and in the result and McDonald concurred in part and dissented in part. Neither wrote.)

Allen v. State, 2022-KA-00419-COA (Criminal – Felony)
Reversing convictions six counts of statutory rape, holding that the jury was not properly instructed as to the State’s burden of proof and remanding for a new trial.
(9-1-0: McDonald concurred in result only without writing.)

Practice Point: The erroneous instruction was submitted by the defense, but the Court noted that the “invited-error doctrine” did not apply where the jury was not properly instructed on the elements of the crime. Here is the Court’s summary of the issues with the jury instructions:

Fletcher v. State, 2022-KA-00868-COA (Criminal – Felony)
Affirming conviction of capital murder and sentence as habitual offender, holding that the trial court did not err when it failed to suppress the defendant’s statement to law enforcement officials.
(10-0)

The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (Civil – Other)
Affirming the circuit court’s decision denying an ordinance variance to repair a wall/fence that enclosed the petitioner’s property, holding that the petitioner did not waive its challenge to the city’s code interpretation but that the circuit court’s interpretation of the code provisions at issue were not erroneous.
(10-0)

Carter v. C&S Canopy, Inc., 2022-CA-00730-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a driver and his employer in an auto-negligence case, holding that there was no evidence to support the plaintiff’s claim that the driver negligently continued to drive a “sluggish” truck on the interstate, that the defendants were negligent in their efforts to get the truck towed, that the location of reflective triangles was the proximate cause of the crash, that the defendant could have safely moved the disabled truck anywhere other than where he did, that the driver should have registered as a for-hire carrier, or that the employer negligently failed to train the driver.

Appellate Math Warning: None of us signed up for this.

Marshall v. State, 2022-KA-00541-COA (Criminal – Felony)
Reversing conviction of first-degree murder, holding that the circuit court erred in denying the defense’s peremptory strikes of three jurors, holding that the defense provided valid, race-neutral reasons for the strikes.
(10-0)

Cain v. M.D.E.S., 2023-CC-00188-COA (Civil – State Boards & Agencies)
Affirming denial of claim for unemployment benefits, holding that the circuit court properly dismissed the claimant’s appeal of denial as untimely.
(10-0)

Other Orders

Walker v. State, 2022-KA-00482-COA (denying rehearing)

Gregory Meridian Acquisition, LLC v. McFarland, 2022-CA-00580-COA (denying rehearing)

Fox v. Fox, 2022-CA-00918-COA (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of January 23, 2024

The Mississippi Court of Appeals handed down nine opinions on Tuesday. There is a workers’ comp case, a homeowner v. HOA dispute with a robust discussion of Robert’s Rules of Order, a personal injury appeal after an underwhelming verdict for the plaintiff with some significant discovery/evidentiary rulings, a tortious interference case stemming from a grocery wholesaler’s default on financial obligations, three direct criminal appeals, and a couple of PCR cases.

Kirby v. State, 2022-KA-00320-COA (Criminal – Felony)
Affirming conviction of first-degree murder and two counts of possession of a weapon by a felon, holding that the defendant failed to show that his trial counsel was ineffective, that the court did not abuse its discretion by limiting cross-examination of a rebuttal witness for the State, and that the verdict was supported by sufficient evidence.
(10-0)

Harris v. State, 2022-KA-00647-COA (Criminal – Felony)
Affirming conviction of touching a child for lustful purposes as an authority figure, holding that the circuit court did not commit reversible error by admitting a video recording of the defendant’s police interview after the detective had already testified about the interview, holding that the evidence was sufficient to support the verdict, and declining to address the ineffective-assistance-of-counsel claim on direct appeal.
(10-0)

Buena Vista Lakes Maintenance Ass’n, Inc. v. Jones, 2022-CA-01153-COA (Civil – HOA)
Reversing the chancery court’s decision in a homeowner v. HOA dispute over the interpretation of bylaws, holding that the bylaws were not ambiguous and that a two-thirds majority of eligible votes cast at the meeting was required as opposed to two-third majority of those eligible to vote and holding that the chancellor erred in finding that the HOA’s bad on rental properties was against public policy.
(10-0)

NOTE – Robert’s Rules of Order had a moment here.

Divinity v. Hinds Cty Sch. Dist., 2022-WC-01282-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision after a hearing on the merits, holding that there was substantial evidence to support the Commission’s finding that the claimant’s upper extremity complaints were not among the injuries she sustained in her work-related accident and that the Employer/Carrier was not required to pay for a spinal cord stimulator and certain prescriptions.
(9-0: Carlton did not participate)

NOTE – This was a pro se appeal and the procedural history was convoluted.

Boyett v. State, 2022-CP-01239-COA (Civil – PCR)
Affirming the circuit court’s denial of a motion for PCR, holding that the motion was time-barred.
(10-0)

Duncan v. State, 2023-CP-00406-COA (Civil – PCR)
Affirming denial of motion for PCR, holding that the circuit court did not err in finding the PCR motion moot because the petitioner had been released on parole.
(10-0)

Harris v. Ratcliff, 2022-CA-00596-COA (Civil – Personal Injury)
Affirming the trial court’s denial of the plaintiff’s motion for new trial or additur after the jury returned a verdict for the plaintiff in an amount significantly less than the plaintiff’s claimed medical expenses, holding that the trial court did not abuse its discretion in granting the defendant’s additional time to designate experts, in striking one of the plaintiff’s experts at trial after the expert began testifying based on notes that had not been disclosed (to the surprise of both sides), in denying the plaintiff’s request to substitute an expert for another expert who was in a coma where the plaintiff was prepared to use the expert’s video testimony at trial, or in excluding a DTI brain scan.
(7-2: Westbrooks and McDonald concurred in part and dissented in part; McCarty did not participate)

Edwards v. State, 2022-KA-00719-COA (Criminal – Felony)
Affirming conviction of attempted capital murder of a chancery court judge, holding that the trial court did not abuse its discretion by allowing testimony from two law enforcement officers regarding information they received during their investigation because it was offered for purposes other than to prove the truth of the matter asserted.
(9-1-0: Lawrence concurred in part and in the result without separate written opinion)

Silver Dollar Sales, Inc. v. Battah, 2022-CA-00476-COA (Civil – Torts)
Affirming the trial court’s grant of a directed verdict in favor of one defendant in a case stemming from a grocery wholesaler’s default on its debts to a financing company, holding that the plaintiff failed to prove that one defendant (another grocery wholesaler) committed tortious interference with business relations or that anything that defendant did proximately caused actual damages to the plaintiff.
(8-2: McDonald dissented, joined by Westbrooks)

Other Orders

In the Matter of the Guardianship of B.P.: Michael P. v. Patrick Thomas and Jennifer Thomas, 2021-CA-01288-COA (denying rehearing)

Tubwell v. FV-1, Inc., 2021-CP-01345-COA (denying rehearing)

Washington v. State, 2021-KA-01384-COA (denying rehearing)

Ramsey v. State, 2022-CP-00103-COA (denying rehearing)

Prophet v. State, 2022-CA-00933-COA (denying rehearing)

Hall v. State, 2022-CP-01097-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of January 9, 2024

The Mississippi Court of Appeals handed down four opinions on Tuesday. Notably, not one of the decisions was a clean affirmance. There is a personal injury/MTCA decision, a riparian property damage case, a divorce decision, and an arbitration decision.

Mississippi Department of Rehabilitation Services v. Butler, 2022-CA-00176-COA (Civil – Personal Injury)
Affirming on direct appeal and reversing on cross-appeal in an MTCA car wreck case, holding that the circuit court did err after holding a bench trial and finding that the defendant-driver was in the course and scope of her employment and her negligence was the sole proximate cause of the accident, but holding that the circuit court erred in not awarding damages for the loss of a cell phone and repair of a wedding band and that the circuit court erred in denying the plaintiffs’ motion for additur on the loss-of-consortium claim.
(9-0: Emfinger did not participate)

Hegman v. Adcock, 2022-CA-00501-COA (Civil – Property Damage)
Affirming in part and reversing in part the circuit court’s judgment affirming the county court in a riparian rights case, holding that the circuit court did not err in affirming the denial of the plaintiff’s claim for injunctive relief and damages and the denial of the defendant’s Rule 52 motion, but reversing the circuit court’s decision affirming the court court’s finding the plaintiff liable on a tortious interference with business relations counterclaim and the $95,000 award on that counterclaim.
(8-2-0: Wilson and Emfinger concurred in part and in the result without writing)

Bolivar v. Bolivar, 2022-CA-00640-COA (Civil – Domestic Relations)
Vacating the chancery court’s judgment on a motion for contempt in “highly contentious divorce proceedings,” holding that the movant was required to have a new Rule 81 summons for her fourth contempt motion “regardless of the status of the litigation.”
(10-0)

Coleman v. Stan King Chevrolet, Inc., 2022-CA-00943-COA (Civil – Contract)
Reversing the circuit court’s dismissal of a motion to compel arbitration on the basis that the statute of limitations had run on the underlying claims, holding that where the defendants initially sought to compel arbitration but later obtained a default judgment on their counterclaim in the circuit court, the defendants’ rejection of the plaintiff’s attempt to proceed with arbitration justified relief under Rule 60(b)(6), holding that the circuit court erred in addressing the statute of limitations issue, and remanded for the matter to be restored to the active docket and stayed pending conclusion of arbitration proceedings.
(5-3-2: Lawrence and Smith concurred in part and in the result without writing; McCarty concurred in result only without writing; Greenlee dissented, joined by Enfinger)

NOTE – The proceedings in the circuit court were convoluted. It necessary to read the opinion to get a handle on what took place and the Court’s ruling.

Other Orders

Roberson v. State, 2021-CA-01182-COA (denying rehearing)

Carpenter v. State, 2022-KA-00398-COA (denying rehearing)

Davis v. State, 2022-KA-00573-COA (denying rehearing)

Boyington v. State, 2022-KA-00601-COA (denying rehearing)

Pickle v. State, 2022-CP-00929-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of December 12, 2023

The Mississippi Court of Appeals handed down eight decisions on Tuesday that cover a lot of territory. There is something for just about everybody.

Read on down for a case that underscores the importance of keeping up with the weekly hand downs from the Mississippi Supreme Court and Mississippi Court of Appeals. (Subscribing to this blog probably doesn’t hurt you in that endeavor.)

Coogan v. Nationwide Prop. and Cas. Ins. Co., 2022-CA-01063-COA (Civil – Insurance)
Affirming partial summary judgment in policy holders’ suit against their auto liability carrier, holding that the carrier had an arguably reasonable basis to support its claims handling the circuit court did not err in finding that there was no genuine issue of material fact on the bad faith punitive damages claim or the Veasley damages claim.
(6-2-1: McCarty concurred in part and in the result without writing, Westbrooks concurred in result only without writing, McDonald dissented without writing, Lawrence did not participate)

Forrest v. State, 2022-KA-00844-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence and that the court did not admit inadmissible hearsay or irrelevant evidence, and dismissing the ineffective assistance of counsel claim without prejudice.
(10-0)

Hills v. Manns, 2022-CA-00774-COA (Civil – Domestic Relations)
Affirming modification of visitation schedule, holding that the chancellor did not err in not dismissing the mother’s petition on the basis of res judicata, not awarding him attorney’s fees, or in awarding the mother final decision-making authority.
(10-0)

Strong v. Acara Solutions, Inc., 2022-CA-01240-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit on judicial estoppel grounds, holding that the case should be remanded to allow the circuit court to apply the test from a recent Mississippi Supreme Court decision that was handed down after the circuit court’s ruling.
(10-0)

PRACTICE POINT – This case illustrates the importance of keeping up with decisions handed down weekly by Mississippi’s appellate courts. (By extension, this case illustrates why you and all of your friends should subscribe to the Mississippi Appeals Blog – I covered the Saunders decision here when it was handed down.)

PRACTICE POINT (continued): Though the Mississippi Supreme Court’s decision in Saunders was handed down after the summary judgment order was entered, the Supreme Court’s decision in Jones, infra, with its special concurrence, was handed down before the summary judgment proceedings. So the precedential special concurrence in Jones that controlled this case was in force during the summary judgment proceedings. This case serves as a good reminder that special concurrences that garner a majority of the court have the force of precedent. (Another shameless plug: I covered the Jones decision here when it was handed down and specifically discussed the precedential value of the special concurrence.)

Barefield v. Barefield, 2022-CA-00834-COA (Civil – Torts-Other)
Affirming the chancellor’s order requiring the former member/owner of an investment company to pay a forensic accountant’s fee for services during litigation among all members/owners, holding that the exert was court-appointed and the chancellor had discretion to order the party whose actions necessitated the lawsuit to pay the fees.
(8-2-0: McCarty concurred in part and in result without writing; Wilson concurred in result only without writing)

Henderson v. State, 2022-KA-00661-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the evidence was sufficient to support the conviction and the verdict was not against the overwhelming weight of the evidence.
(10-0)

Nichols v. State, 2022-KA-00202-COA (Criminal – Felony)
Reversing conviction of first-degree murder and remanding for new trial, holding that the circuit court erred by failing to instruct the jury on the “castle doctrine,” while also holding that the evidence to support the conviction was legally sufficient so the remedy was a new trial.
(10-0)

Miss. Dept. of Human Servs. v. Johnson, 2022-SA-00605-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision voiding a 2002 paternity and child-support order was void for insufficient service of process, holding that in light of MDHS’s admission that failed to effect proper service under Rule 81(d) MDHS’s arguments under the doctrine of laches, judicial estoppel, unjust enrichment, and public policy failed.
(6-4: Greenlee dissented, joined by Wilson, Lawrence, and Emfinger)

Other Orders

Gillen v. Gillen, 2021-CA-00837-COA (granting motion for appellate attorneys’ fees)

Moore v. State, 2022-KA-00327-COA (granting appearance as counsel, but denying motion to substitute and motion to file supplemental brief)

Diming v. State, 2022-KA-00412-COA (recalling mandate and granting motion for time to file motion for rehearing)

Russell v. State, 2022-KA-00447-COA (recalling mandate and granting motion for time to file motion for rehearing)

Greater Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (denying rehearing)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (denying motion for reconsideration)

Mitchell v. State, 2023-TS-00764-COA (granting motion to proceed out-of-time)

Robinson v. State, 2023-TS-00935-COA (dismissing untimely appeal)

Britton v. State, 2023-TS-01060-COA (dismissing untimely appeal)

Rutherford v. State, 2023-TS-01066-COA (dismissing appeal for lack of appealable judgment)

Rutherford v. State, 2023-TS-01069-COA (dismissing appeal for lack of appealable judgment)

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Mississippi Court of Appeals Decisions of November 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. They cover custody, personal injury, felonies, and PCR. One of the personal injury cases stems from an injury sustained during a “TikTok challenge” in a classroom.

Croom v. State, 2022-KA-00598-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling and conspiracy to commit burglary of a dwelling, holding that the trial court did not err by refusing to instruct the jury on the lesser-included offense of trespass and that the evidence was sufficient to support the conviction of conspiracy.
(9-1-0: Westbrooks concurred in result only without separate written opinion)

Snyder v. Estate of Cockrell, 2022-CA-00597-COA (Civil – Torts)
Affirming summary judgment in a negligence case a man filed against his grandfather’s estate after a child caused the grandfather’s golf cart to run into the plaintiff, holding that in the plaintiff could not prove a breach of duty where there was only speculation about the grandfather’s conduct after he finished operating the golf cart.
(8-2-0: McDonald concurred in part and in result without written opinion; Westbrooks concurred in result only with separate written opinion)

Johnson v. State, 2022-CP-01186-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the petitioner failed to present evidence other than his bare assertions that his plea was involuntary and that the trial court did not abuse its discretion in not granting the petitioner an evidentiary hearing.
(10-0)

Scott v. Le, 2022-CA-00887-COA (Civil – Custody)
Affirming the chancellor’s custody award, holding that the chancellor’s finding that there was a material change in circumstances and the chancellor’s application of the Albright factors to to deny the mother’s request for sole physical custody and grant the father’s request for sole physical custody was supported by substantial evidence.
(10-0)

Taylor v. State, 2022-KA-01042-COA (Criminal – Felony)
Affirming conviction of attempted murder and two counts of possession of a controlled substance, holding that evidence of prior arrests did not constitute evidence of prior bad acts under Rule 404(a) because it was offered as the foundation of a witness’s identification of the defendant and that would have been otherwise admissible under the exception in 404(b), that it passed the 403 balancing and, even if it was not admissible, it would have been harmless error.
(9-1-0: Westbrooks concurred in part and in the result without writing)

Brown v. State, 2022-KA-00446-COA (Criminal – Felony)
Affirming conviction of first-degree murder and shooting into a vehicle, holding that the evidence was sufficient to support the convictions, that the defendant waived the issue of the judge’s refusal of a second-degree murder instruction when trial counsel did not object and agreed with the judge’s decision, and there was no merit to the claim that a clinical and forensic psychological expert was pressured into proceeding with an independent psychological examination without all of the records he had requested.
(10-0)

Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the school district in a negligent supervision after a student was injured in a class room after falling victim to a “TikTok challenge,” holding that that the injury was not reasonable foreseeable and there was no genuine issue of material fact that would warrant reversal of the summary judgment.
(6-2-2: Westbrooks and McDonald concurred in part and in the result without written opinion; McCarty dissented, joined by Carlton, and joined in part by Westbrooks and McDonald)

Other Orders

Smith v. State, 2026-KA-01946-COA (denying pro se motion to recall mandate and allow untimely motion for rehearing)

Hall v. State, 2022-CP-01097-COA (recalling mandate and allowing appellant’s timely pro se motion for rehearing to proceed on the merits)

McGee v. State, 2023-KA-00083-COA (remanding to the circuit court for forty-five days for a hearing consistent with Mississippi Rule of Appellate Procedure 6(c)(2) and an order)

Patton v. State, 2023-TS-00618-COA (allowing timely appeal to proceed on the Court’s own motion)

Crump v. State, 2023-TS-00795-COA (allowing timely appeal to proceed on the Court’s own motion)

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