Tag: Real Property

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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Mississippi Supreme Court Decisions of April 13, 2023

I was out of town Thursday and Friday doing fun things with my family and summarizing hand downs didn’t fit the agenda. Without further delay, here are summaries of the four decisions the Mississippi Supreme Court handed down while I was out. There is a wrongful death/premises liability decision, a direct appeal of a murder conviction, and two real property contract decisions.

Deepak Jasco, LLC v. Palmer, 2021-IA-00702-SCT (Civil – Wrongful Death)
Reversing the denial of summary judgment in a premises liability case, holding that the plaintiff did not prove that the owner and operator of a convenience store adjacent to a lot where the plaintiff’s decedent was found stabbed and killed had actual or constructive knowledge that an atmosphere of violence existed on the premises.
(5-4-0: Maxwell concurred in part and in the result, joined by Randolph and Beam)

NOTE – Here is the crux of the Court’s analysis:

Anderson v. State, 2022-KA-00007-SCT (Criminal – Felony)
Affirming conviction of murder, holding that the trial court did not err by refusing an excusable homicide instruction based on heat of passion or by admitting evidence of the defendant’s prior bad act of using methamphetamine just before the shooting and for several days before where the defendant himself testified that he was high on meth when he shot his grandmother and it was relevant to his state of mind and motive.
(9-0)

Sel Business Services, LLC v. Lord, 2021-CT-00368-SCT (Civil – Real Property)
Affirming in part and reversing in part the chancellor’s grant of summary judgment in favor of a property owner who made an oral agreement to sell to one buyer but then sold to someone else, holding that while the statute of frauds barred the claim for specific performance the would-be buyer still had other equitable remedies available.
(9-0)

NOTE – The decisions specifically overruled Barriffe v. Estate of Nelson, 153 So. 3d 613 (Miss. 2014):

Luxe Homes, LLC v. Brewer, 2022-IA-00132-SCT (Civil – Contract)
Reversing the chancellor’s denial of a motion to transfer venue, holding that the terms of a venue provision in the contract between the parties were unambiguous, mandatory, and enforceable and that the transferred to the circuit court of the venue county even though the suit sought specific performance of a real estate contract.
(7-2-0: Kitchens and King concurred in result only without separate written opinion)

Other Orders

$153,340 v. State, 2020-CT-01409-SCT (cert denied)

Wilson v. City of Greenville, 2021-CT-00316-SCT (cert denied)

Johnson v. State, 2021-CT-00571-SCT (cert denied)

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Mississippi Supreme Court Decisions of March 2, 2023

The Mississippi Supreme Court handed down one decision yesterday but also granted cert in an interesting MTCA case involving police-protection immunity that split the Court of Appeals.

State v. RW Development, LLC, 2021-CA-01134-SCT (Civil – Real Property)
Affirming the chancery court’s judgment denying the City’s request for declaratory judgment declaring that it had the sole and exclusive authority to lease Public Trust Tidelands, holding that Mississippi statutory law grants the City the authority to lease the property to a developer for public use and to build a pier without “obtaining a redundant second grant of authority from the Secretary of State in the form of a lease.”
(6-3: King dissented, joined by Kitchens and Griffis.)

Other Orders

Curry v. State, 2018-M-01543 (granting application to file successive motion for PCR)

Towns v. Panola County Bd. of Supervisors, 2020-CT-01364-SCT (denying cert)

Wilson v. Lexington Manor Senior Care, LLC, 2021-CT-00072-SCT (denying cert)

Edwards v. State, 2021-CT-00261-SCT (denying cert)

Phillips v. City of Oxford, 2021-CT-00639-SCT (granting cert)

NOTE – This is an interesting cert grant in a police-protection immunity case that split the Court of Appeals 5-4 with the majority reversing the judgment in favor of the City. Here is my summary of the COA decision:

Phillips v. City of Oxford, 2021-CA-00639-COA (Civil – Personal Injury/MTCA)
Reversing the circuit court’s finding after a bench trial that the City was protected by police-protection immunity after an officer’s vehicle crossed an intersection against a red light and struck the plaintiff’s vehicle while the officer was responding to an emergency, holding that the facts of this case met the “exceptional circumstances” requirement for finding reckless disregard and that the officer acted with conscious indifference to the safety of the public and the certain parts of the police chief’s testimony were not credible.
( 5-4: Judge Lawrence dissented, joined by Judge Wilson, Judge Smith, and Judge Emfinger; Judge Greenlee did not participate.)

NOTE– The Court of Appeals declined the appellant’s invitation to adopt a “reckless disregard per se” rule and maintained the totality-of-the-circumstances analysis.

Jones v. State, 2021-CT-01088-SCT (denying cert)

Hand Down List

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