Tag: Real Property

Mississippi Court of Appeals Decisions of August 13, 2024

The Mississippi Court of Appeals handed down six opinions today. The court affirmed in two direct criminal appeals but reversed, dismissed, or vacated in each of the remaining cases. Those four consist of a divorce, a real property conveyance, a mechanic lien against real property, and a misdemeanor.

Osing v. Osing, 2022-CA-00755-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s judgment in a divorce proceeding, holding that the chancellor did not err in denying the husband’s motion to withdraw consent to the irreconcilable-differences divorce, but reversing the chancellor’s division of the marital estate for failure to make sufficient factual findings and, as a result, reversed the chancellor’s award of alimony and a minor child’s college and health-insurance coverage pending reconsideration of the division of the marital estate.
(7-1-0: Wilson concurred in part and in the result without separate written opinion; Lawrence did not participate)

Campbell v. State, 2022-KA-01055-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, holding that there was sufficient evidence supporting the verdict and that the verdict was not against the overwhelming weight of the evidence, that the trial court did not err by referencing the grand jury proceedings, that there was no Brady violation regarding lost fingerprints, and that the trial court did not err in overruling a Batson challenge.
(8-0: Smith did not participate)

Alexander v. Espinoza, 2023-CP-01139-COA (Civil – Real Property)
Dismissing the appeal of a chancellor’s order denying declaratory relief, holding that the chancellor’s order was not a final judgment because it did not resolve all claims against all parties, and it did not contain 54(b) certification language.
(9-0)

In the Matter of the Estate of Johnson: Manners v. Estate of Johnson, 2023-CA-00823-COA (Civil – Wills, Trusts, & Estates)
Reversing the chancellor’s decision denying a claim to enforce rights under a document by which a decedent had intended to convey an interest in real property, holding that the document was a valid conveyance of an interest in the property and remanded for necessary parties to be joined and for further proceedings consistent with the opinions.
(9-0)

Carpenter v. State, 2023-KA-00580-COA (Criminal – Felony)
Affirming conviction of two counts of child exploitation, holding that section 97-5-33(8) of Mississippi’s child exploitation statute is not unconstitutional for overbreadth or for supporting entrapment and holding that the verdict was supported by sufficient evidence.
(9-0)

NOTE – Here is the court’s description of section Miss. Code Ann. § 97-5-33(8):

Holt v. State, 2023-KM-00121-COA (Criminal – Misdemeanor)
Vacating and remanding dismissal of an appeal to the circuit court from a conviction of simple domestic assault originating in municipal court, holding that the circuit court erred by dismissing the appeal for failure to file a brief without giving notice of the deficiency and an opportunity to cure and that the record was insufficient to determine whether the circuit court had jurisdiction for want of posting a cost bond.
(7-1-0: Carlton concurred in result only without writing; Smith did not participate)

  • Bradford v. State, 2022-KA-00493-COA (denying rehearing)
  • Hutson v. Hutson, 2022-CT-00569-COA (dismissing motion for appellate attorney’s fees)
  • Taylor v. Johnson, 2022-CA-00734-COA (denying rehearing)
  • Brown v. Black, 2022-CA-00869-COA (denying rehearing)
  • Roley v. Roley, 2022-CP-01104-COA (denying rehearing)
  • Winstead v. State, 2022-KA-01235-COA (denying rehearing)
  • Smith v. State, 2023-KA-00185-COA (denying rehearing)
  • Magyar v. Shiers, 2023-CA-00682-COA (denying motion to dismiss appeal)
  • Brown v. State, 2024-TS-00741-COA (granting motion to proceed out of time)

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Mississippi Court of Appeals Decisions of July 16, 2024

The annual July hiatus is over and the Mississippi Court of Appeals is back today with nine opinions. There are four direct criminal appeals, including one reversal of a murder conviction. There are three real property cases, one involving a partition, one an administrative condemnation decision, and the other a landowner’s right to keep horses on her property within city limits. There is also a custody modification decision and a PCR decision. (If you notice a missing tenth judge on these cases, Judge Greenlee’s retirement from the court was effective July 1, 2024.)

JDB Rentals, LLC v. City of Verona, 2023-CA-00431-COA (Civil – Real Property)
Reversing the circuit court’s decision affirming the board of aldermen decision administratively condemning three of rental properties, holding that the exclusionary rule prohibited consideration of evidence the code-enforcement officer obtained incident to an unconstitutional search of property.
(8-1-0: Carlton concurred in result only without writing)

Davis v. State, 2023-KA-00636-COA (Criminal – Felony)
Affirming conviction of first-degree murder and shooting into a motor vehicle, holding that the trial court did not err by not striking four potential jurors because none of the four was seated on the jury.
(8-1-0: McDonald concurred in the result only without writing)

Shanks v. State, 2023-CP-00271-COA (Civil – PCR)
Affirming denial of PCR motion seeking relief from a 2003 guilty plea, holding that the claims were not subject to any exception and did not involved the parole board.
(9-0)

Wade v. Simmons Erosion Control, Inc., 2023-CA-00733-COA (Civil – Real Property)
Affirming the chancery court’s decision dividing a large tract of land between two landowners, holding that the chancellor did not commit manifest error by accepting and approving a special master’s report and choosing one of the partition options presented by the special master.
(9-0)

Sinquefield v. The City of Ridgeland, 2022-CA-01276-COA (Civil – Real Property)
Reversing the circuit court’s decision that affirmed the City’s unanimous (no nays) decision that a landowner lacked the requisite acreage to maintain two horses on her property, holding that the City had to be reined in because its interpretation of the ordinance was not based on substantial evidence and was arbitrary and capricious where the owner had ponied up and acquired possessory interest in adjacent tracts.
(6-1-0: McCarty concurred in part and in the result without trotting out a written opinion; Barnes and Emfinger did not participate)

Herrington v. State, 2022-KA-00691-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that after reviewing counsel’s Lindsey brief and the record that there were no issues that warranted reversal.
(8-0: Lawrence did not participate)

Littleton v. State, 2023-KA-00239-COA (Criminal – Felony)
Reversing the conviction of first-degree murder, holding that the circuit court erred in admitting a recorded statement of a witness where the witness was not called giving the defendant no opportunity to cross-examine the witness in violation of the Confrontation Clause, that the admission of the statement was not harmless error, and that the trial court abused its discretion in refusing to give the proposed defense instruction stating the jury’s duty to acquit should it find that the defendant acted in necessary self-defense.
(6-3-0: Lawrence and Emfinger concurred in part and in the result without writing; Wilson concurred in result only without writing)

NOTE – Here is a summary of the court’s holding that the admission of the statement was error from paragraph 42 of the opinion:

Wells v. State, 2022-KA-00707-COA (Criminal – Felony)
Affirming conviction of conspiracy to commit murder and first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence.
(9-0)

May v. Brown, 2023-CA-00624-COA (Civil – Custody)
Affirming the chancery court’s child-custody modification order, holding that substantial evidence supported the modification giving the father primary care, control, and custody of the minor.
(8-1: Westbrooks concurred in result only without writing)

Other Orders

  • Estate of Green v. Michini, 2022-CA-00365-COA (denying motions for rehearing)
  • Rambo v. Kelly Natural Gas Pipelines, LLC, 2023-WC-00402-COA (denying rehearing)

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Mississippi Supreme Court Decisions of June 27, 2024

The Mississippi Supreme Court handed down three opinions yesterday. The first opinion is a decision about damages following a voided tax sale. The second is an answer to a certified question from the Fifth Circuit asking whether Mississippi law permits workers’ comp policies to be voided ab initio based on a material misrepresentation. The third opinion reviews summary judgment in a med mal case centering on whether the discovery rule applied.

Thoden v. Hallford, 2022-CA-00835-SCT (Civil – Real Property)
Affirming in part and reversing in part the chancellor’s decisions in a case stemming from a voided tax sale of real property, holding that the chancellor correctly determined that the buyer was entitled to a refund of the purchase price of the voided sale plus interest, that the buyer was not entitled to reimbursement for costs incurred on the property, and that the legal owner was entitled to a set-off, but that the chancellor erred by determining that the purchaser was not entitled to taxes paid between the purchase and the voidance.
(7-0: Randolph and Griffis did not participate)

American Compensation Ins. Co. v. Ruiz, 2023-FC-01160-SCT (Civil – Federally Certified Question)
Answering a certified question from the Fifth Circuit, holding that workers’ compensation policies cannot be voided ab initio based on an material misrepresentation by the employer because the MWCA controls, rescission is inconsistent with Section 71-3-77(1), and allowing rescission would go against the express, statutory purpose of the MWCA.
(7-1: Coleman dissented, Randolph did not participate)

NOTE/DISCLOSURE: I represented one of the parties in this case and argued that the common law remedy of voiding a policy ab initio cannot be used to void a workers’ comp policy because of the comprehensive and exclusive nature of the MWCA. This issue had never been addressed by Mississippi courts, so when the carrier appealed the U.S. District Court’s decision granting our motion for summary judgment, the Fifth Circuit submitted a certified question to the Mississippi Supreme Court. This has been one of my favorite cases to handle with an interesting, novel legal issue at its core. Needless to say, I am gratified that the question was answered in my client’s favor despite great lawyering by opposing counsel.

Here is the crux of the Court’s holding:

McNinch v. Brandon Nursing & Rehabilitation Center, L.L.C., 2023-CA-00050-SCT (Civil – Wrongful Death)
Reversing summary judgment in favor of the defendant nursing home and hospital in a med mal case, holding the discovery rule tolled the statute of limitations where suit was filed within two years and sixty-days of when the decedent’s widow received his medical records which were requested with reasonable diligence.
(9-0)

Other Orders

  • In Re: Commission on Continuing Legal Education, 89-R-99011-SCT (reappointing Elizabeth Lee Maron, Robert Michael Tyler, Jr., and Sam H. Buchanan to three-year terms)
  • Archie v. State, 2022-KA-00326-SCT (denying rehearing)
  • Mississippi Department of Child Protection Services v. B.F., 2023-IA-00689-SCT (dismissing interlocutory appeal as moot)

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Mississippi Supreme Court Decisions of Late

Because of a string of litigation deadlines followed by a blessed week out of the office last week, I am behind on summaries. It has been a relatively slow month for hand downs in terms of volume from the Mississippi Supreme Court, so I am consolidating the last few weeks in this one post.

April 2, 2024 (a bonus Tuesday decision)

Barker v. Ivory, 2024-EC-00347-SCT (Civil – Election Contest)
Affirming the circuit court’s decision finding that a would-be candidate for Alderman was not qualified, holding that issues regarding the validity of the petition to object were procedurally barred and that the trial court’s decision that he failed to satisfy the two-year residency requirement was supported by sufficient evidence in the record.
(9-0)

April 4, 2024

State of Mississippi v. Aldrich, 2022-SA-01088-SCT (Civil – Real Property)
Affirming the chancery court’s ruling in favor of a private landowner in a dispute over whether an acre of Mississippi coastal land was properly designated as State-owned tidelands, holding that the secretary of state had failed to following statutory guidelines in drafting the maps and failed to meet its burden of proof that the artificial filling was not the product of the deposition of oyster shells and dredge spoils.
(7-1-0: Kitchens concurred in part and in the result without writing; Randolph did not participate)

Archie v. State, 2022-KA-00326-SCT (Criminal – Felony)
Affirming convictions of conspiracy and capital murder, holding that the defendant was entitled to an instruction on his alibi theory of defense but that the trial court’s error refusing of that instruction was harmless error, that the trial court did not abuse its discretion in refusing the defendant’s proposed reasonable doubt instruction on the basis that it was cumulative, that the trial court did not err by admitting photos of the defendant that were authenticated by a witness other than the photographer, that the verdicts were not against the overwhelming weight of the evidence, and that the ineffective assistance of counsel claim was without merit.
(5-4: Coleman dissented, joined by Kitchens, King, and Ishee)

NOTE – The dissent asserted that Mississippi law required an alibi instruction and that the failure to give the alibi instruction could not be harmless error.

Hayes v. Thomas,  2023-EC-00229-SCT (Civil – Election Contest)
Reversing the circuit court’s grant of a default judgment a year after an election contest was filed questioning the vote count, holding that a default judgment was not permissible in this general election contest (per section 23-15-951) and that the petitioner’s failure to diligently prosecute her contest required dismissal with prejudice.
(9-0)

April 11, 2024

– No opinions (other orders are below)

April 18, 2024

Robinson v. State, 2023-KA-00184-SCT (Criminal – Felony)
Affirming conviction of heat-of-passion manslaughter, holding that whether trial counsel was ineffective for failing to request a right-to-stand-your-ground jury instruction could not be analyzed on direct appeal based on direct appeal and holding that the State’s evidence was sufficient disprove the defendant’s self-defense claim.
(9-0)

Other Orders

April 4, 2024

  • Odom v. State, 2021-CT-00676-SCT (denying cert)
  • D.W. v. C.E., 2021-IA-01075-SCT (dismissing interloc as moot)
  • Hobby v. Ott, 2021-CT-01305-SCT (denying cert)
  • Pickle v. State, 2022-CT-00929-SCT (dismissing cert petition as untimely)

April 11, 2024

  • Smith v. State, 2020-CT-00774-SCT (denying cert)
  • Carpenter v. State, 2022-CT-00398-SCT (denying cert)
  • Hall v. State, 2022-CT-01097-SCT (denying cert)
  • Pryer v. State, 2023-M-01230-SCT (denying pro se petition to appeal)
  • Bennett v. Bennett, 2023-TS-01385 (ordering compliance with MRAP 10(b)(4))

April 18, 2024

  • Roberson v. State, 2021-CT-01182-SCT (denying cert)
  • Michael P. v. Thomas, 2021-CT-01288-SCT (denying cert)
  • Bennett v. State, 2021-CA-01313-SCT (denying rehearing)
  • Tubwell v. FV-1, Inc., 2021-CT-01345-SCT (granting pro se cert petition)
  • In Re: Administrative Orders of the Supreme Court of Mississippi, 2024-AD-00001-SCT (directing the disbursement of $138,454.56 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)
  • Reeves v. Gary, 2024-EC-00406-SCT (granting motion to vacate response a response and the circuit court’s order in an election contest)

Hand Down Pages

Mississippi Court of Appeals Decisions of April 2, 2024

The Mississippi Court of Appeals handed down four opinions yesterday. There was a wills and estates case that was more of an appellate procedure case, a real property contract for sale case, a direct criminal appeal, and a tort/statute of limitations case.

Brown v. Black, 2022-CA-00869-COA (Civil – Wills, Trusts & Estates)
Dismissing appeal of a chancellor’s decision awarding attorneys fees, holding that the 2021 order on attorney’s fees was final and appealable regardless of 2022 certification and that the appeal was therefore untimely.
(9-0: Smith did not participate)

Eaton v. Haney, 2022-CA-00656-COA (Civil – Contract)
Affirming the chancellor’s decision requiring specific performance for sale of real property and awarding damages and attorneys fees, holding that there was a valid contract for the sale of the real property and that the fact dispute between the parties was for the chancellor to decide and that the award of attorney’s fees was within the chancellor’s discretion.
(9-1: Emfinger dissented)

Hand v. State, 2022-KA-00819-COA (Criminal – Felony)
Affirming conviction of kidnapping and child exploitation, holding that the verdicts were not against the overwhelming weight of the evidence.
(10-0)

Pettis v. Northeast Mississippi Electric Power Association, 2022-CA-00688-COA (Civil – Torts)
Affirming dismissal of a negligence claim under the doctrine of res judicata and the IIED and loss of consortium claims on statute of limitations grounds, holding that the discovery rule did not apply and that any fraudulent concealment arguments were waived for failure to raise them in the trial court.
(7-1-0: Westbrooks and McDonald concurred in result only without written opinion, Barnes did not participate)

Other Orders

Brown v. State, 2022-KA-00446-COA (denying rehearing)

Russell v. State, 2022-KA-00447-COA (denying rehearing)

Snyder v. Estate of Cockrell, 2022-CA-00597 (denying rehearing)

Galvan v. State, 2022-KA-00655-COA (denying rehearing)

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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 November 28, 2023

The Mississippi Court of Appeals handed down five opinions today. There are two domestic cases (custody and divorce), an appeal of summary judgment, a real property/arbitration case, and a PCR case.

Scott v. Boudreau, 2022-CA-00961-COA (Civil – Custody)
Affirming judgment modifying custody and awarding the father custody, holding that the chancery court did not abuse its discretion in analyzing the Albright factors and awarding custody to the father which required relocating the children.
(8-1-1: Wilson concurred in part and in the result without writing, McDonald concurred in part and dissented in part without writing)

Malone v. State, 2022-CP-00958-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the petitioner entered his guilty plea voluntarily and the circuit court did not err on the issue of competency where the circuit court made an on-the-record determination of competency and that the petitioner’s attorney’s performance was not deficient.
(7-3-0: Wilson, Westbrooks, and McCarty concurred in part and in the result without writing)

MDL Community Development, LLC v. Dillon, 2022-CA-00802-COA (Civil – Real Property)
Affirming the chancellor’s decision withdrawing an order and reiterating a prior order compelling arbitration, holding that the chancellor had subject matter jurisdiction over the land-contract dispute and retaind jurisdiction to enforce an arbitration decision, if any.
(10-0)

Cannon v. Cannon, 2022-CA-00410-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s grant of divorce and related matters, holding the chancellor did not err in granting divorce on the ground of cruel and inhuman treatment or in finding that the proceeds from the sale of the ex-wife’s separate home were converted to marital property, but holding that the chancellor erred in determining that the ex-husband’s real estate business was separate non-martial property.
(9-1-0: Emfinger concurred in part and in the result without writing)

Jarrell v. Coastal Ear, Nose & Throat, Head and Neck Surgery Association, PLLC, 2022-CA-00910-COA (Civil – Other)
Affirming the trial court’s grant of summary judgment dismissing a former employee’s wrongful discharge claim, holding that the circuit court did not err in striking parts of the plaintiff’s affidavit that contained hearsay, lacked foundation, and were speculative statements, and that the plaintiff did not establish that the whistleblower exception to at-will employment could apply here.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

Other Orders

Rawlings v. Rawlings, 2022-CA-00919-COA (denying motion for appellate attorney’s fees)

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Mississippi Court of Appeals Decisions of September 26, 2023

The Mississippi Court of Appeals handed down nine opinions today. There is something for everyone: tort, real property, divorce, direct criminal appeals, and PCR. Due to volume of paying work and COA output I had to move quickly to get these out, so I expect a higher-than-normal rate of typos.

Odom v. State, 2021-KA-00676-COA (Criminal – Felony)
Affirming conviction of murder, holding that computer printouts of GPS and location data from Google were not properly authenticated and should not have been admitted but that the error was harmless, that the trial court did not abuse its discretion in admitting photos of a vehicle over an authentication objection, that the trial court did not err in excluding paint-transfer evidence and crime lab documents for lack of authenticity, and holding that the conviction was supported by sufficient evidence.
(7-3: Wilson dissented without written opinion; Westbrooks dissented, joined in part by McDonald)

Practice Point – On the authenticity of Google satellite images, the Court noted that the images themselves were not hearsay, but that computer-generated data included on the photos required authentication:

Robb v. McLaughlin, 2021-CA-00672-COA (Civil – Personal Injury)
Affirming a judgment after jury trial in a negligence/infliction of emotional distress/invasion of privacy/defamation/libel case stemming from the defendant posting a false ad for prostitution online with the plaintiff’s phone number, holding that the defendant’s due process rights were not violated, the proceedings were properly bifurcated into compensatory and punitive phases, the plaintiff was not required to produced expert medical testimony on her intentional infliction of emotional distress claim, the damages were not speculative, and the jury instructions were appropriate.
(9-1-0: Wilson concurred in part and in the result without written opinion.)

Practice Point– I have cited the 5th Circuit’s Krieser decisions for the proposition that settlement as to one defendant does not affect apportionment at trial–a proposition that can cut either way. It is nice to have a Mississippi Court of Appeals decision to cite (citing Krieser) for this proposition.

Alexander v. State, 2022-CA-00397-COA (Civil – PCR)
Affirming denial of PCR motion that argued ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous, legally in error, or an abuse of discretion.
(9-1-0: Westbrooks concurred in result only without written opinion)

Bradshaw v. State, 2022-KA-00469-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the indictment was not overly broad to the point it failed to provide sufficient notice under a plain error analysis or on the merits, that there was no violation of the right to speedy trial, and that the trial court did not abuse its discretion in allowing testimony of prior bad acts because it complied with Rule 404(b).
(9-0: Emfinger did not participate.)

Smith v. State, 2022-KA-00664-COA (Criminal – Felony)
Affirming conviction of sexual battery of a child, holding that the trial court did not abuse its discretion by denying the defendant’s motion for continuance because the State’s discovery violations did not result in manifest injustice, that the trial court did not commit plain error by severing the codefendant’s case without a proper motion, and that the lack of error precluded reversal for cumulative error.
(10-0)

Titus v. Stelzer, 2022-CA-01079-COA (Civil – Real Property)
Affirming the chancellor’s order in a suit to set aside a quitclaim deed and to confirm and quiet title, holding that the chancellor did not err in setting aside the quitclaim deed and confirming title through a prior conveyance.
(9-1-0: McCarty concurred in part and in the result without written opinion.)

Gregg v. State, 2022-KA-00485-COA (Criminal – Felony)
Affirming conviction of possession of amphetamine and marijuana, holding that the sole issue on appeal–ineffective assistance of counsel–should be dismissed without prejudice because the record was insufficient to address the issue on direct appeal.
(10-0)

Patel v. State, 2022-CA-00985-COA (Civil – PCR)
Affirming denial of motion to withdraw and vacate a prior admission of guilt in a pretrial intervention after the petitioner learned that even with dismissal and expungement he was not eligible for lawful permanent residence status under the INA, holding that the circuit court properly dismissed the motion for lack of jurisdiction.
(9-0: Emfinger did not participate.)

Gussio v. Gussio, 2020-CA-00785-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in a divorce case granting the mother a divorce and granting her physical and legal custody of the children, holding that the chancellor did not err in the amount of child support awarded, in not imputing income to the mother, in awarding alimony, by denying the father’s motion in limine to exclude evidence of the mother’s attorney’s fees, in awarding attorney’s fees, or in denying motion to alter or amend the judgment and consider new evidence.
(5-5: Wilson concurred in part and dissented in part, joined by Greenlee, Lawrence, Smith, and Emfinger.)

NOTE – Judge Wilson’s partial dissent agreed with the rulings on child support and alimony, but asserted that the award of attorneys’ fees should not be affirmed because the record and the chancellor’s findings on attorneys’ fees were insufficient. I am putting this one on my cert watchlist.

Other Orders

Lynn v. State, 2021-KA-00968-COA (denying rehearing)

Culver v. Culver, 2021-CA-01108-COA (denying rehearing)

Stevenson v. State, 2021-KA-01286-COA (recalling mandate)

Lestrick v. State, 2021-CP-01409-COA (denying motion for additional time to file motion for rehearing)

Covin v. Covin, 2022-COA-00019-COA (denying motion for appellate attorney’s fees)

Amos v. State, 2022-KA-00171-COA (denying motion for enlargement of time to file motion for rehearing)

Pickle v. State, 2022-CP-00929-COA (recalling mandate)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (granting motion to dismiss consolidated appeals as interlocutory)

Miller v. State, 2023-TS-00812-COA (allowing appeal to proceed as timely)

Gardner v. State, 2023-TS-00903-COA (granting motion to consolidate)

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Mississippi Supreme Court Decisions of August 17, 2023

The Mississippi Supreme Court handed down four opinions today. One is a direct criminal appeal and one was a real property case addressing the applicability of restrictive covenants after a foreclosure sale. Then there are two decisions on interlocutory appeals of summary judgment denials – a med mal/MTCA pre-suit notice case against a hospital and a construction zone MVA case against the road contractor and MDOT.

Stuart v. State, 2022-KA-00585-SCT (Criminal – Felony)
Affirming conviction of filming a person without her knowledge and with an expectation of privacy, holding that the defendant’s right to counsel was not violated when he had been through three public defenders and his request that a fourth lawyer be appointed his counsel days before trial and for continuance was denied where the fourth lawyer was appointed to serve as advisory counsel, and that the trial court did not err in denying the defendant’s accident instruction.
(9-0)

UMMC v. Aycock, 2022-IA-00030-SCT (Civil – Med Mal)
Affirming on interlocutory appeal the denial of the hospital’s motion for summary judgment arguing that the plaintiff did not serve proper pre-suit notice on the CEO, holding that the notice requirements are mandatory–but not jurisdictional–but that there was an issue of material fact as to whether the hospital waived, or is equitably estopped from asserting, lack of compliance based on its conduct after actually receiving notice though not through its CEO.
(8-1: Griffis concurred in part and dissented in part)

NOTE – Here is the Court’s summary of some of the facts relevant to waiver and equitable estoppel:

Loblolly Properties LLC v. Le Papillion Homeowner’s Ass’n, Inc., 2021-CT-00767-SCT (Civil – Real Property)
Affirming the chancery court and court of appeals in an action to collect HOA fees, holding that the developer who purchased properties through a nonjudicial foreclosure sale owed HOA fees where it purchased the properties with notice of the restrictive covenants and holding, specifically, that the foreclosure sale did not extinguish the HOA covenants.
(7-2: Coleman dissented, joined by Griffis)

Joe McGee Construction Company, Inc. v. Brown-Bowens, 2021-IA-01405-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of summary judgment to a road construction contractor and to MDOT, holding that there was no competent summary judgment evidence to support that any breach of duty by the contractor or by MDOT proximately caused the crash where the contractor had installed all warning signs required by MDOT and where the decedent passed multiple signs warning of a road closure and crashed into a crane on a closed portion of the highway.
(7-2: Kitchens dissented, joined by King)

DISCLOSURE – I represented the road contractor appellant in this case.

PRACTICE POINT – I think this is a useful, pithy statement to support motions for summary judgment when the arguments on causation are speculative:

Other Orders

In Re: Local Rules, 89-R-99015-SCT (approving amendment to local rule filed by Judge Irving in the 22nd Circuit Court District)

Rhea v. Career General Agency, Inc., 2021-CT-00580-SCT (granting cert)

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CT-00605-SCT (denying cert)

The Board of Supervisors for Lowndes County, Mississippi v. Lowndes County School Dist., 2021-CA-00999-SCT (denying rehearing)

Wagner v. Andreacchio, 2021-IA-01199-SCT (denying rehearing)

Bradley v. State, 2022-CT-00173-SCT (denying cert)

MS Concrete v. Harris, 2022-CT-01095-SCT (denying cert)

Howell v. State, 2023-DR-00455-SCT (remanding motion for appointment of counsel for representation of indigent capital petitioner)

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Mississippi Court of Appeals Decisions of August 1, 2023

The Mississippi Court of Appeals handed down six opinions today. We have a couple of state boards and agencies decisions, one dealing with recall of a police officer’s certification and the other with a termination of a teacher and suspension of license. There is a real property case involving a church and the invocation of the “ecclesiastical abstention doctrine,” a direct criminal appeal, and two PCR cases.

As a housekeeping note, I have started writing “sub silentio” instead of “without separate written opinion” to indicate concurrences and dissents without separate written opinions. I am not aware of that phrase being used in that specific manner, but I think it gets the point across. This may not seem like a big deal, and it really isn’t, but the frequency with which I have been typing “without separate written opinion” has become a thief of joy for this humble blogger of case summaries.

Walters v. Board on Law Enforcement Officer Standards and Training, 2022-SA-00378-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s decision affirming Board’s decision to recall a police officer’s processional certification, holding that the Board’s decision was not arbitrary and capricious, did not violate the former officer’s constitutional rights, and were supported by substantial evidence including evidence of unnecessary force, violations of department policies, and racist text messages.
(10-0)

NOTE– The Court also granted in part a motion from the Board to unseal the case file.

Pickle v. State, 2022-CP-00929-COA (Civil – PCR)
Affirming the circuit court’s decision denying a motion to vacate a sentence for capital murder while committing criminal rape from 1978, holding that the petitioner was not illegally sentenced and that he was not entitled to a Miller resentencing hearing.
(8-2-0: Emfinger concurred in part and in the result sub silentio; Lawrence concurred in the result only sub silentio.)

Greater New Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (Civil – Real Property)
Affirming the chancellor’s ruling that a deed purporting to convey real property owned by a church was invalid because it was not authorized by a resolution under section 79-11-31(1), holding that the chancellor was not deprived of subject matter jurisdiction under the “ecclesiastical abstention doctrine,” that the “minutes rule” was not applicable because a church is not a public board, and the chancellor did not abuse her discretion in granting the plaintiff leave to file an amended complaint.
(10-0)

NOTE – I thought the Court’s summary of its decision on the ecclesiastical abstention doctrine was interesting:

Badger v. State, 2022-CP-00831-COA (Civil – PCR)
Affirming denial of the petitioner’s third motion for PCR twelve years after pleading guilty, holding that the circuit court did not err in finding that the motion was time-barred and did not meet any statutory exception under the UPCCRA or any fundamental rights exception that was in effect at that time.
(8-2-0: Westbrooks concurred in result only sub silentio.)

Langley v. Miss. State Board of Education, 2022-SA-01024-COA (Civil – State Board and Agencies)
Affirming the BOE’s decision upholding a teacher’s termination for violations of the BOE’s standards of conduct, suspending her license for five years, and placing conditions on reinstatement, holding that the Commission’s decision as upheld by the Board and the chancery court was supported by substantial evidence and was not arbitrary or capricious, the Commission was authorized to suspect her license, and she was afforded due process at her hearing.
(10-0)

West v. State, 2022-KA-00432-COA (Criminal – Felony)
Affirming conviction of sexual battery and gratification of lust, both while in position of trust and authority, holding that the defendant’s sufficiency of the evidence argument was procedurally barred because it was not raised before the circuit court and that the circuit court did not commit plain error in not sua sponte declaring a mistrial.
(5-3-2: Barnes, McDonald, and Emfinger concurred in part and in the result sub silentio; Greenlee concurred in part and dissented in part sub silentio; Westbrooks concurred in part and dissented in part, joined by McDonald and Greenlee in part)

Other Orders

Wakefield v. State, 2021-KA-00187-COA (denying rehearing)

Estate of Bell v. Estate of Bell, 2021-CA-00789-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (denying rehearing)

McDowell v. State, 2021-CA-01381-COA (denying rehearing)

Everett v. State, 2021-CP-01415-COA (denying rehearing)

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