Tag: Real Property

Mississippi Supreme Court Decisions of February 2, 2023

The Mississippi Supreme Court handed down two opinions today. One is a consolidated appeal resolving a “circuit split” where two state circuit courts reached opposite conclusions on the same legal issue involving UM coverage for accidents caused by MTCA-immune tortfeasors. (Come for the holding, stay for the strong words about the Fifth Circuit’s earlier Erie-guess on this issue.) The other opinion involves the rights of a successor in title to a reciprocal easement.

Lee v. State Farm Mutual Automobile Insurance Company, 2021-CA-00882-SCT consolidated with State Farm Mutual Automobile Insurance Company v. Cooper, 2021-IA-01006-SCT (Civil – Contract)
Resolving a “circuit split” by holding that under the UM statutes (as amended in 2009) the UM carrier was required to provide UM coverage to plaintiffs for damages sustained in collisions with entities afforded immunity under MTCA, reversing summary judgment in one case and affirming the denial of summary judgment in the other case.
(7-0: Chief Justice Randolph and Justice Beam did not participate.)

Practice Point – The Supreme Court specifically addressed the limited precedential value of this decisions:

Note – The Supreme Court would like us to remember that the Fifth Circuit’s Erie-guesses are not binding precedent in Mississippi. McGlothin is a Fifth Circuit opinion from 2019 that the Mississippi Supreme Court did not exactly agree with:

So what does the Mississippi Supreme Court do?

You can read that approach (that involves the doctrine of in pari materia) in the opinion.

TransMontaigne Operating Company, L.P. v. Loresco I, LLC, 2021-CA-00980-SCT (Civil – Real Property)
Affirming the chancellor’s denial of the plaintiff’s request for declaratory and injunctive relief, holding that the express language of a reciprocal easement was specific and clear and allowed the successor in title to the easement to full use of the easement per its terms and did not limit the successor to the scope of actual use by the predecessor in title.
(7-2: Justice Griffis dissented, joined by Justice King.)

Other Orders

In Re: The Rules of Civil Procedure, 89-R-99001-SCT (granting motion to amend Miss. R. Civ. P. 45 – *An order amending Rule 45 was also on the hand down list last week. The link to the order on the hand down page last week is no longer active, but you can see a copy of the PDF that was handed down last week on my post from last week. I quickly compared the two and didn’t immediately see any differences except the date that the amendment will go into effect based on the date the orders were entered.)

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing County Judge Carol Jones Russell of Forrest Countyas a member of the Supreme Court of Mississippi Advisory Committee on Rules on the nomination by the Mississippi Conference of County Court Judges)

Fannings v. State, 2015-M-01061 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Cook v. State, 2017-M-00455 (denying motion for PCR, finding the filing frivolous, and restricting the plaintiff from further filings in forma pauperis)

Moffett v. State, 2021-CT-00622-SCT (denying cert)

Billie v. State, 2022-M-00416 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Hand Down List

Mississippi Supreme Court Decisions of October 20, 2022

[For reasons unknown, when I tried to publish this post earlier WordPress would only show the title with none of the content in the body. It seems to be working now. My apologies to those who have gotten multiple emails with no content.]

The Mississippi Supreme Court handed down four cases today, all civil. Two in particular are of general interest to civil practitioners. One deals with whether an et seq. or “catchall” defense was sufficient to preserve the statute of limitations as an affirmative defense and the other reviews a discovery order from the trial court. Then there are two jurisdiction cases: one deciding whether the circuit court (as opposed to the oil and gas board) has jurisdiction to hear claims against an oil company and the other whether the circuit court has jurisdiction to hear imperfect but timely notices of appeal from local government decisions.

Tiger Production Company, LLC v. Pace, 2021-IA-00315-SCT (Civil – Property Damage)
Affirming the circuit court’s denial of the defendant’s motion to dismiss on interlocutory appeal, holding that the plaintiff’s claims for compensatory and punitive damages based on allegations that an oil company put a saltwater disposal line across the plaintiff’s property without permission were purely common law claims and could not be remedied by the MS Oil and Gas Board.
(8-0: Justice Beam did not participate)

Lawson v. City of Jackson, 2021-IA-00532-SCT (Civil – Personal Injury)
Affirming in part and reversing/remanding in part a discovery order from the trial court on interlocutory appeal, holding that the trial court did not abuse its discretion in entering a protective order providing that a party did not have to respond to written discovery that would not be due until after the discovery deadline but holding that the trial court abused its discretion in restricting the plaintiff’s access to public records and in preventing the plaintiff from introducing any such public records at trial.
(9-0)

Pruitt v. Sargent, 2021-CA-00511-SCT (Civil – Personal injury)
Reversing the circuit court’s decision granting the defendant’s motion to dismiss based on the running of the statute of limitations, holding that the defendants waived the statute of limitations defense by failing to adequately plead it in their answer.
(6-2-0: Justice Coleman concurred in part and in the result, joined by Justice Griffis; Justice Beam concurred in the result only without separate written opinion)

PRACTICE POINT – The Supreme Court laid down some black-letter law today on pleading the statute of limitations as an affirmative defense and its reasoning probably applies to other affirmative defenses. The Court took a look at the defenses that were pleaded and found they fell short of the standard:

Then, the Court said flatly that et seq. didn’t cut it:

Longo v. City of Waveland, 2021-CA-00735-SCT (Civil – State Boards and Agencies)
Reversing the circuit court’s dismissal in two consolidated cases where the circuit court dismissed appeals from local governments for lack of jurisdiction, holding that a notice of appeal that is timely filed but that erroneously omits a petitioner’s name has a procedural defect that does not defeat jurisdiction and can be corrected.
(5-4: Justice Chamberlin dissented, joined by Justice Coleman, Justice Maxwell, and Justice Beam.)

Other Orders

Bridges v. State, 2020-CT-00816-SCT (denying cert)
SRHS Ambulatory Services, Inc. v. Pinehaven Group, LLC, 2020-CA-01355-SCT (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of October 18, 2022

We got five opinions today from the Mississippi Court of Appeals. There are two chancery cases, one dealing with termination of parental rights and another dealing with an appeal from a judgment of divorce, distribution, and child support. There is an appeal of a summary judgment in a slip and fall case, an unsuccessful appeal from a default judgment, and a criminal case challenging the admissibility of witness testimony.

Middlebrook v. Fuller, 2021-CA-00590-COA (Civil – Custody)
Affirming the chancery court’s judgment adjudicating paternity and terminating parental rights, holding that there was clear and convincing evidence to terminate parental rights and that the chancellor did not err in making that determination contrary to the GAL’s recommendation.
(9-1: Judge Westbrooks concurred in part and dissented in part without written opinion.)

Hill v. Central Sunbelt Federal Credit Union, 2021-CA-00833-COA (Civil – Personal Injury)
Affirming the circuit court’s decision granting summary judgment dismissing a slip and fall case, holding that rainwater on a porch did not constitute a dangerous condition where it was actively raining, surveillance video showed that water was not pudding or accumulating on the porch, and there was no evidence of other falls.
(7-1-1: Judge Westbrooks concurred in the result only without separate written opinion; Judge McDonald concurred in part and dissented in part without separate written opinion; Judge Smith did not participate.)

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (Civil – Real Property)
Affirming the trial court’s denial of the defendant’s motion to set aside entry of default, holding that the inadvertence by the defendant’s registered agent was not a legitimate explanation justifying the default and that the trial court did not abuse its discretion in determining that the defendant had not presented a sufficient colorable defense.
(10-0)

Davis v. State, 2021-KA-00593-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm, holding that a witness’s testimony that she saw the defendant with a firearm weeks before the incident was properly admitted and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Green v. Green, 2021-CP-01167-COA (Civil – Domestic Relations)
Affirming in part and reversing in part on appeal from the chancery court’s judgment in a divorce case, holding that the appellant waived her right to challenge the merits of her divorce because she failed to appear at the hearing on the merits, that she waived that issue of distribution of marital assets by failing to cite legal authority to support her claims on appeal, but reversing and remanding for the chancellor to make specific findings of fact and conclusions of law consistent with Ferguson and to issue written findings concerning the reasonableness of the amount of child support.
(8-2: Judge McCarty concurred in part and dissented in part, joined by Judge Greenlee -“If there is ever a case for waiver, this is it.”)

Other Orders

Roberson v. State, 2020-CA-01208-COA (denying rehearing)
Siggers v. State, 2021-CP-00985 (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of September 29, 2022

The Mississippi Supreme Court handed down four opinions today. There is a case dealing with an attempt to collect early termination fees after a new board of supervisors terminated a service contract, a case dealing with a thorny procedural issue after a default judgment was entered on a counterclaim in an appeal from justice court, a domestic case regarding the parent’s school choice with potentially broader implications, and a criminal case addressing the weight of the evidence and improper testimony about prior convictions.

Broadband Voice, LLC v. Jefferson County, Mississippi, 2021-CA-01082-SCT (Civil – Contract)
Affirming the circuit court’s dismissal of a phone and internet company’s claim for early termination fees against the county after new slate of supervisors terminated the service contract, holding that under the plain language of the contract the fee was due on the termination date rather than the date of the notice of termination and that the early-termination-fee provision that was negotiated by the prior board was unenforceable against the subsequent board.
(9-0)

Gordon v. Dickerson, 2020-CT-00601-SCT (Civil – Real Property)
Reversing the Court of Appeals, the circuit court, and the county court for denying the landlord’s motion to set aside a default judgment in county court on the tenant’s counterclaim that she asserted on appeal from justice court, holding that the landlord was not in default for purposes of Rule 55 because the counterclaim was filed in violation of Rule 15(a) (re: amendment of pleadings) and Rule 13(k) (re: appeals from justice court) cannot be read to the exclusion of Rule 15(a).
(5-4: Chief Justice Randolph dissented, joined by Justice Kitchens and Justice Ishee; Justice King dissented, joined by Justice Kitchens.)

Practice Point – There is a lot of explanation of the various rules in play in this decision. Bookmark this one and re-read it whenever you handle and appeal from justice court.

Bryant v. Bryant, 2020-CT-00883-SCT (Civil – Domestic Relations)
Affirming the Court of Appeals and the chancellor in ordering that the three minor children attend a specific public school district over the wishes of their father who was made the “final decision maker” on such matters, holding that the language of the property settlement agreement authorized the chancellor use its powers “as superior guardian to make decisions that are in the best interest of children.”
(6-3: Justice Coleman dissented, joined by Justice Maxwell and Justice Griffis; Justice Maxwell wrote a separate dissent joined by Justice Coleman.)

NOTE – The majority and the dissents disagree on a big-picture issue: the relationship between the government’s role in the relationship between parents and children. Take a few minutes and read the majority and both dissents.

Moore v. State, 2021-KA-00420-SCT (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the verdict was not against the overwhelming weight of the evidence because inconsistencies in testimony did not render the verdict implausible and holding that although it was improper for the prosecution to directly elicit testimony about past convictions the error was potentially waived and ultimately harmless.
(6-3-0: Justice Maxwell concurred in part and in the result, joined by Chief Justice Randolph and Justice Beam.)

In Re: Rules Governing Admission to The Mississippi Bar, 89-R-99012-SCT (reappointing Pieter Teeuwissen, Marcie Fyke Baria, and Gwendolyn Baptist-Rucker to three-year terms (11/1/22 through 10/31/25) as members of the Mississippi Board of Bar Admissions)
Millette v. Frazier, 2022-M-00451-SCT (denying petition for permission to appeal and lifting stay of trial court proceedings)

Hand Down List

Mississippi Appellate Decisions of September 6 and September 8, 2022

I was out of the office for an extracurricular conference on Tuesday. (I will issue a full refund for my failure to timely deliver those summaries.) All we got from the Mississippi Supreme Court this week is a rehearing denial and a denial of an application for post-conviction collateral relief. I have written even-shorter-than-normal snapshots of the Court of Appeals decisions below, which turned out to be almost entirely PCR and state boards and agencies decisions.

Supreme Court Orders of September 8, 2022

Chatman v. State, 2016-M-00424 (denying application for post-conviction collateral relief and warning that future filings deemed frivolous may result in sanctions and restrictions on filing in forma pauperis)

Russell v. State, 2019-CT-01670-SCT (denying rehearing)

Supreme Court Hand Down List

Court of Appeals Decisions of September 6, 2022

Burns v. State, 2021-KA-00310-COA (Criminal – Felony)
Affirming conviction of possession of meth and sentencing, holding that the verdict was not against the overwhelming weight of the evidence that the trial court did not err in refusing the defendant’s instruction on possession, and denying the pro se argument that he received ineffective assistance without prejudice.
(10-0)

Caston v. State, 2021-CA-00397-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the plaintiff waived the right to challenge proportionality by pleading guilty and, in any event, failed to prove gross disproportionality.
(10-0)

Nguyen v. Bui, 2021-CP-00538-COA (Civil – Real Property)
Affirming the chancery court’s judgment mandating specific performance of a real estate contract, holding that the appellant’s argument did not raise issues of reversible error, lacked citation to authority, and were beyond the scope of appellate review.
(10-0)

Beasley v. State, 2021-CA-00653-COA (Civil – PCR)
Affirming denial of the plaintiff’s PCR motion, holding that the plaintiff failed to meet the two-prong Strickland test required to establish ineffective assistance of counsel.
(9-0: Judge Emfinger did not participate)

Norwood v. State, 2021-CA-00802-COA (Civil – PCR)
Affirming denial of the plaintiff’s PRC motion, holding that the plaintiff did not prove that his due process rights were violated or that he received ineffective assistance of counsel.
(10-0)

Roberts v. State, 2021-CA-00998-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff’s claim as to the voluntariness of his guilty plea was procedurally barred and meritless and that his claim of ineffective assistance of counsel was meritless.
(10-0)

Wilson v. City of Greenville, 2021-CA-00316-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s dismissal of the plaintiff’s untimely appeal of the Greenville City Council’s decision to accept and enforce his resignation as police chief and in granting the City’s replevin action for city equipment in the plaintiff’s possession and denying the plaintiff’s counterclaim and motions to dismiss/stay, holding that the City’s decision was supported by substantial, credible evidence and that the circuit court committed no error.
(8-1-0: Judge Wilson concurred in result only without separate written opinion; Judge Westbrooks did not participate)

Thomas v. PERS, 2021-SA-00375-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s judgment affirming the PERS Board, holding that the Board’s decision that the plaintiff failed to prove she could no longer perform her duties as a bus aid as a result of her workplace accident was supported by substantial evidence and was not arbitrary or capricious.
(10-0)

Laurel School District v. Lanier, 2021-CA-00384-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s decision dismissing the plaintiff’s complaint against the school district stemming from the school district’s failure to conduct a nonrenewal hearing, holding that the chancery court had jurisdiction to consider the complaint seeking relief for due process violations and to dismiss the claim so the plaintiff could obtain the hearing he had been denied.
(7-3: Judge Westbrooks dissented, joined by Chief Judge Barnes and Judge McDonald)

Other Court of Appeals Orders

Brewer v. Kemp, 2020-CA-00214-COA (denying rehearing)

Court of Appeals Hand Down List

Mississippi Court of Appeals Decisions of August 9, 2022

The Mississippi Court of Appeals handed down five opinions today. There is one decision that turns on an appellate procedure issue, a workers’ comp decision, a real property decision addressing the lack of findings of fact and conclusions of law when a request was made under Rule 52, and two PCR cases.

Jones v. State, 2021-CP-01088-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion because it was barred as a successive motion and time-barred, holding that the plaintiff did not show that these bars did not apply to his claim.
(10-0)

Townsend v. State, 2021-CP-01091-COA (Civil – PCR)
Affirming denial of the plaintiff’s PCR motion, holding that the plaintiff had waived his ineffective assistance of counsel claim when he pleaded guilty, that the indictment was not facially defective, that a pre-sentence report was not required, that the plaintiff’s due process rights were not violated because of his guilty plea, and that the plaintiff’s rights were not violated for sentencing him as a habitual offender.
(10-0)

Thompson v. AAA Cooper Transportation, 2021-CP-00658-COA (Civil – Property Damage)
Affirming the circuit court’s judgment dismissing an appeal from county court for lack of appellate jurisdiction, holding that because the appellant failed to file a notice of appeal and pay the cost bond within the time provided he had not timely perfected his appeal.
(10-0)

Darty v. Gulfport-Biloxi Regional Authority, 2021-WC-00986-COA (Civil – Workers’ Compensation)
Affirming the MWCC’s decision denying the claimant’s motion to reinstate his claim as time-barred, holding that the claimant’s failure to timely request review of the AJ’s dismissal of the claim due to the claimant’s failure to respond to a status request barred the claim.
(10-0)

PRACTICE POINT – This result is not as harsh as it seems from this short summary. The status request was issued on January 24, 2017, which was apparently more than a year after prehearing statements were filed. The order of dismissal for failing to respond to the status request was entered on March 2, 2017. The twenty days to file a written request for review of that order passed, and then another three years passed before the claimant hired a new attorney who filed a motion to reinstate the claim.

Rebuild America, Inc. v. Colomb, 2021–CA-00213-COA (Civil – Real Property)
Reversing the circuit court’s judgment that had affirmed both the county court’s dismissal of an action for unlawful entry and detainer and denial of the plaintiff’s motion for findings of fact and conclusions of law, holding that the county court committed reversible error when it did not provide findings of fact and conclusions of law after a request was made under Miss. R. Civ. P. 52.
(4-2-4: Judge Westbrooks and Judge McDonald concurred in part and in the result without separate written opinion. Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Carlton, and Judge Wilson, and in part by Judge McDonald)

NOTE – Today’s unanimity streak was shattered in dramatic fashion with this decision. The disagreement between the majority and the dissent that interests me the most is whether Rule 52 applies at all. The majority held that it does and reversed because the county court did not make findings of fact and conclusions of law when it was asked to. The dissent argues in a footnote that Rule 52 does not apply:

Rule 52 states:

Maybe the dissent will bolster a cert petition and the Mississippi Supreme Court will weigh-in on this issue.

Other Orders

Beale v. State, 2020-KA-00614-COA (denying rehearing)

Devine v. Cardinal Health 110, LLC, 2020-CA-01101-COA (denying rehearing)

Thompson v. State, 2020-CP-01236-COA (denying rehearing)

Stribling v. Youth Court of Washington County, Mississippi, 2021-CA-00007-COA (dismissing appeal sua sponte for lack of appealable judgment)

Porras v. State, 2021-CP-00052-COA (denying rehearing)

Barnes v. State, 2021-KA-00404-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of August 4, 2022

The Mississippi Supreme Court handed down two opinions today and in both it reversed the Court of Appeals. One involves a judgment lienholder’s plight after a tax sale of which it was not given notice. The other is an appellate procedure case addressing whether there was a final, appealable order.

HL&C Marion, LLC v. DIMA Homes, Inc., 2020-CT-00750-SCT (Civil – Real Property)
Reversing the Court of Appeals and the chancellor in suit to conform and quiet title, holding that in this case where a home builder obtained and enrolled a judgment against the property owners for an unpaid construction balance, the property was sold at a tax sale and then sold again, that no legal authority required notice of the tax sale to the home builder/judgment lienholder prior to the expiration of the two-year redemption period and that the chancery clerk had no duty to conduct a search of the judgment roll. Judgment was rendered in favor of the purchaser.
(6-0: Chief Justice Randolph, Justice Beam, and Justice Griffis did not participate)

OVERRULE ALERT – This decision overruled at least two prior decisions where it was held that equity allowed for an extension of the two-year, statutory redemption period because such decisions run afoul of the Mississippi Constitution which gives the Legislature the exclusive right to set the conditions for redemption:

Humphrey v. Holts, 2021-CT-00046-SCT (Civil – Other)
Reversing the Court of Appeals’ decision dismissing the appeal for lack of a final, appealable order, holding that the chancery court’s order dismissing the complaint upon the motion of one of two defendants left no claims to be adjudicated and it was therefore a final, appealable judgment.
(9-0: Justice King specially concurred, joined by Justice Kitchens)

PRACTICE POINT – Mississippi’s appellate courts dismiss a significant number of appeals for lack of final, appealable judgment by strictly applying Miss. R. Civ. P. 54(b). This opinion does not reference Rule 54(b) but it appears that the chancellor’s order in this case did not contain the magic words in 54(b). The Supreme Court essentially held that 54(b) did not apply here because the chancellor’s order disposed of the entire complaint (i.e. it did not dispute of fewer than all claims/parties) so the magic words were not required. My takeaway: When Rule 54(b) applies it must be strictly complied with, but don’t assume it applies.

In Re: Commission on Mandatory Continuing Legal Education, 89-R-99011-SCT (Order appointing Helen Morris, Marcus A. McLelland, and Katherine K. Farese to three-year terms as members of the Commission on Mandatory Continuing Legal Education effective August 1, 2022)

In Re: Advisory Committee on Rules, 89-R-99016-SCT (Order authorizing and directing the disbursement of $15,000.00 from the Court’s Judicial System Operation Fund to the Mississippi Supreme Court Advisory Committee on Rules for its necessary work through September 30, 2022)

City of Jackson, Mississippi v. Johnson, 2020-CA-00318-SCT (denying rehearing)

Nelson v. State, 2020-M-01417 (denying application for Leave to Proceed in the Trial Court filed pro se and warning petitioner against further frivolous filings)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2022-AD-00001-SCT (En banc order directing the disbursement of $177,295.27 in civil legal assistance funds among the MS Volunteer Lawyers Project, North MS Rural Legal Services, and MS Center for Legal Services)

Hand Down List

Mississippi Court of Appeals Decisions of August 2, 2022

In five opinions handed down today, the Mississippi Court of Appeals tackled implied trusts, trespass to timber, hearsay exceptions, and more.

Bays v. State, 2021-KA-00244-COA (Criminal – Felony)
Affirming a conviction of one count of sexual battery by a person in a position of trust or authority, holding that it was error to admit testimony containing a hearsay statement by the 12-year-old victim under the 801(d)(1)(C) statement of identification hearsay exception but that the error was harmless in light of the overwhelming evidence supporting the guilty verdict and holding that the trial court did not abuse its discretion in denying the defendant’s untimely request to submit evidence of another perpetrator or in denying the defendant’s request to re-call the victim.
(9-1-0: no separate opinion)

Ainsworth v. Plunk, 2021-CA-00488-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s order requiring a father to transfer title of real property back to his two daughters, holding that the chancery court properly applied the remedy of an implied trust under the peculiar facts of this case where (1) the father deeded land to his daughters and reserved a life estate for himself prior to his upcoming marriage in case the marriage ended in divorce, which it did, (2) the father then told the daughters to deed the land back to him and he would execute a new deed where the daughters would be tenants in common with full rights to devise their half interest, (3) the daughters quitclaimed their interest back to the father, (4) and the father then said he would only deed back the land if one of the daughters gave up an African-American baby she had adopted.
(8-2-0: no separate opinions)

NOTE – In addition to its startling facts that would make a compelling movie, this opinion contains a helpful discussion of constructive trusts and resulting trusts, and the differences between the two that would not necessarily make a compelling movie.

Terpening v. F.L. Crane & Sons, Inc., 2021-CA-00544-COA (Civil – Personal Injury)
Affirming summary judgment in a wrongful death action against an employer stemming from a fatal collision involving its employee, holding that the employer was not vicariously liable for the employee’s negligence because the employee was driving home from a week at a remote job site in a personal vehicle when the accident occurred and thus was not in the course and scope of his employment.
(10-0)

NOTES – The Court of Appeals held that the circuit court did not err in declining to apply the workers’ comp “traveling employee doctrine” outside of the workers’ comp arena. Additionally, the Court of Appeals dropped this handy paragraph to cite when the opposing party’s argument relies on out-of-state authorities:

(Please disregard this if I am ever the opposing party citing out-of-state authorities.)

Nalls v. State, 2021-KA-00592-COA (Criminal – Felony)
Affirming convictions of attempted murder and possession of a firearm by a felon, holding that the trial court did not err in denying the defendant’s motion for JNOV because the verdict was not against the overwhelming weight of the evidence and then rejecting several arguments made in the defendant’s additional, pro se brief.
(10-0)

Green v. Poirrier Properties, L.L.C., 2021-CP-00704-COA (Civil – Real Property)
Affirming the chancellor’s decision in a timber-trespass case, holding that the chancellor’s finding that the defendant’s removal of timber constituted a willful act and the chancellor’s award of damages were supported by substantial evidence.
(8-2-0: no separate opinions)

Other Orders

Booker v. State, 2018-CA-00664-COA (denying rehearing)

Manuel v. State, 2020-KA-00711-COA (denying rehearing)

Bridges v. State, 2020-CA-00816-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of June 14, 2022

The Mississippi Court of Appeals handed down two opinions today. One addresses a custody award against a backdrop of abuse. The other case involves a remainderman’s claim for damages for timber that was clear cut by the holder of a life estate.

Taylor v. Mississippi Department of Child Protective Services, 2020-CA-01194-COA (Civil – Custody)
Affirming the youth court’s decision awarding durable legal custody of a child to his paternal grandparents, holding that the youth court complied with section 43-21-557(1)(c) and (e) and did not err in bypassing reunification between the mother and her children where there was proof of abuse.
(Judge Westbrooks concurred in the result only without separate written opinion.)

Breeland v. Turnage, 2021-CA-00698-COA (Civil – Real Property)
Affirming the chancery court’s decision awarding the remainderman damages for timer that was cut from the property by the holder of a life estate, holding that the plaintiff had standing because he owned the land at the time of the lawsuit and his subsequent sale of the land did not disturb standing, that the landowner was entitled to collect damages for the profit obtained by devaluing his interested in the property via clear cut, and that the chancellor did not err in refusing to admit testimony about a witness’s prior conviction because the appellant did not argue any of the exceptions to Rule 404 to the trial court.
(Judge Wilson concurred in part and in the result without separate written opinion. Judge Carlton did not participate.)

Other Orders

Nowell v. Stewart, 2020-CA-00728-COA (denying rehearing)

Kreppner v. Kreppner, 2021-CA-00006-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of May 24, 2022

The Mississippi Court of Appeals handed down nine opinions today. Today’s offerings include a divorce case, a DUI/marijuana case, a personal injury case, a malicious mischief case, a jurisdiction case with Rule 54(b) claiming more victims, and a handful of PCR cases.

Camphor v. State, 2021-CP-00048-COA (Civil – PCR)
Affirming denial of PCR motion asserting ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous.
(All judges concurred.)

Powell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (Civil – Real Property/Appellate Jurisdiction/Rule 54(b))
Dismissing appeal of the chancery court’s order dismissing the debtor’s complaint with prejudice and granting the lender’s counterclaim seeking to proceed with a judicial foreclosure, holding that (1) because the counterclaim for judicial foreclosure was still pending the chancery court’s order did not adjudicate all claims against all parties and (2) the chancery court’s order did not contain the certification required by Rule 54(b).
(All judges concurred.)

Klis v. State, 2021-CA-00349-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion, holding that the circuit court did not err in determining that the motion was time-barred and that his ineffective-assistance of counsel claim did not provide an exception to the bar.
(Judge Smith did not participate.)

Short v. State, 2021-KA-00499-COA (Criminal – Felony/Jury Instructions)
Affirming conviction of malicious mischief, holding that a jury instruction setting forth the elements of malicious mischief did not constructively amend the indictment because the record failed to show the alleged variance and, in light of the lack of objection by the defendant at trial, there was no plain error by the circuit judge.
(All judges concurred.)

Montgomery v. Montgomery, 2020-CP-01135-COA (Civil – Domestic Relations/Divorce/Habitual Cruel and Inhuman Treatment)
Affirming the chancery court’s judgment of divorce and final judgment regarding division of property and other financial matters, holding that the chancery court did not err in granting the husband a divorce on the ground of habitual cruel and inhuman treatment which included throwing items, death threats, and behavior that caused the wife’s family to try to get her to seek medical or psychiatric help. Regarding division of property, the Court of Appeals held that the chancery court did not err in dividing the property as the parties had agreed to. The Court of Appeals handled this case graciously, but appropriately noted that the pro se appellant had “waived consideration of the issues she raises on appeal.”
(All judges concurred.)

NOTE – Hiring an attorney to handle your appeal is generally a good idea. Relatedly, if you can’t find one to take your case, it might be a sign. The appellant in this case represented herself and it did not go well. For example:

Frost v. State, 2021-CA-00152-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s petition for expungement, holding that the circuit court did not err in ruling that it had no jurisdiction.
(Judge Wilson and Judge Emfinger concurred in part and in result without separate written opinion. Judge Smith did not participate.)

Pipkin v. State, 2021-CA-00517-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s second motion for PCR, holding that the plaintiff failed to show that he had a procedurally-viable claim or an applicable exception to the procedural bar.
(Judge Wilson and Judge Lawrence concurred in part and in the result without separate written opinion)

Borsi v. State, 2021-KM-00643-COA (Criminal – Misdemeanor/DUI/Marijuana)
Affirming a conviction of DUI of marijuana, holding that the roadblock that led to the defendant’s arrest was for a proper purpose and conducted consistent with MHP’s general practice so there was no Fourth Amendment violation, that the defendant was not under custodial interrogation when he admitted to smoking marijuana so there was no Miranda violation, that the law was properly applied based upon “influence” rather than “impairment,” and that the trial court (in a bench trial) properly relied upon witness testimony and the evidence presented at trial. The defendant did not leave empty-handed, as the Court of Appeals reversed the assessment of an $85.00 transfer fee by the circuit clerk.
(Chief JUdge Barnes and Judge Wilson concurred in part and in the result without separate written opinion.)

NOTE – This is the second opinion in the last few weeks where the defendant argued that he might have partaken of marijuana, but he was not impaired by it. And it is the second opinion where the Court of Appeals has held that “influence” is not synonymous with “impairment” in this context. (The other opinion was Briggs v. State summarized here.)

Brewer v. Bush, 2020-CA-00214-COA (Civil – Personal Injury/Jury Instructions)
Affirming a defense verdict in a personal injury lawsuit where the plaintiff was helping the defendant put up a barbed wire fence and a bungee cord snapped and struck the plaintiff in the eye, holding that (1) a rational jury could have found that there was no master-servant relationship or that the tools provided were reasonably safe and that the defendant did not breach any duty owed to the plaintiff, (2) the jury was fairly instructed on the issue of proximate causation, (3) the trial judge did not abuse his discretion by giving the defendant’s instruction on “simple tools,” (4) submitting four verdict forms was not reversible error, and (5) the fact that defendant offered fifteen instructions did not result in prejudice to the plaintiff.
(All judges concurred.)

Practice Point – Fight jury instructions with jury instructions. If you don’t like something about opposing counsel’s jury instructions, propose one that fixes it:

Other Orders

Ladner v. State, 2020-KA-00299-COA (denying rehearing)
Denham v. Denham, 2020-CA-00675-COA (denying rehearing)
Dew v. Harris, 2020-CA-01261-COA (denying rehearing)
Miller v. State, 2021-TS-01412-COA (denying motion to reinstate appeal)
Nelson v. State, 2022-TS-00413-COA (denying appellant’s motion to stay appeal and dismissing appeal without prejudice for lack of final judgment

Hand Down List