Road Construction – Mississippi Appeals Blog

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)

Hand Down Page

There is no peddling of leaked drafts on this blog, folks. Just genuine, final opinions from the Mississippi Court of Appeals and Mississippi Supreme Court, locally sourced and responsibly harvested from the Court’s official hand down page. Today, we have eight opinions from the Mississippi Court of Appeals including several criminal cases (one involving the admissibility of social media messages), an auto liability/road construction case with another MTCA-related hybrid bench/jury trial, a will contest, and PERS disability case.

Simmons v. Jackson County, Mississippi, 2020-CA-01014-COA (Civil – Wrongful Death/MTCA/Auto Liability/Hybrid Trial)
Affirming circuit court’s ruling that the county bore no responsibility for a driver’s fatal accident that occurred when his vehicle left the road and struck a culvert, holding that there was sufficient evidence to support the circuit court’s finding that the driver’s negligence in failing to exercise vigilant caution as he drove through a work zone was the sole proximate cause of the accident.
(Judge Westbrooks dissented, joined by Judge Carlton and Judge McDonald.)

NOTE – This was another was with an MTCA defendant and a non-MTCA defendant. In addition to the county, the plaintiff sued Mallette, a construction company that had repaved the road prior to the acccident. The trial court held a hybrid jury/bench trial:

At the conclusion of the plaintiff’s case-in-chief, the circuit involuntarily dismissed the joint venture claim against the County and Mallette. At the conclusion of the trial, the jury returned a verdict in favor of Mallette. The circuit court then entered findings of fact and conclusions of law concluding that the county created a dangerous condition but that the driver’s negligence was the sole proximate cause of the accident and therefore held that the county was not liable.

Dyer v. State, 2021-KA-0 0016-COA (Criminal – Felony/Sexual Battery)
Affirming conviction of sexual battery of a teenage girl, noting that the defendant’s appointed counsel had filed a Lindsey brief, the defendant had not filed his own brief, and that the Court’s review of the record yielded no arguable issues of appeal.
(All judges concurred.)

Smith v. Public Employees Retirement System of Mississippi, 2021-SA-00051-COA (Civil – State Boards and Agencies/PERS)
Affirming denial of a correctional offer’s application for duty-related benefits, holding that the PERS decision was not clearly erroneous, contrary to law and not supported by substantial evidence.
(All judges concurred.)

Wofford v. State, 2020-KA-01341-COA (Criminal – Felony/Burglary/Accomplice Liability)
Affirming convictions of and sentences for two counts of burglary of a dwelling, holding that the circuit court did not err when it denied the defendant’s motion for directed verdict, his request for a peremptory instruction, or his motion for JNOV arguing that he could not be convicted of burglary because there was no evidence that he had broken, entered, or stolen, because the Court reasoned the defendant was indicated for burglary as a principal based on his actions as an accessory before the fact; the circuit court did not err in giving an accomplice-liability instruction; and the circuit court did not err in granting the State’s motion in limine excluding testimony about the amount of money that was taken in the burglary.
(Judge McDonald concurred in result only without separate written opinion. Judge Smith did not participate.)

Adams v. State, 2020-KA-01383-COA (Criminal – Felony/Armed Robbery/Indictment)
Affirming conviction of armed robbery, holding that the jury’s verdict was not against the overwhelming weight of the evidence; that the circuit court did not err by not sua sponte preventing a former associate of the defendant from testifying that he had pleaded guilty to the armed robbery in question in response to a question that was not objected to; that the circuit court did not err by allowing the defendant’s former associate’s recorded interview to be played at trial; that although the State’s attempts to amend the indictment were ineffective because the State failed to procure a written order allowing the indictment, the original indictment was not fatally defective; and that the defendant was not entitled to a new trial under the cumulative error doctrine.
(Judge Westbrooks concurred in result only without separate written opinion.)

Smart v. State, 2020-KA-00835-COA (Criminal – Felony/Exploitation of a Child/Social Media)
Affirming conviction of exploitation of a child and a twenty-year sentence, holding that there was no error in the admission of Kik messages because they had been sufficiently authenticated and that there was no prosecutorial misconduct in stating that the Kik messages were from the defendant and correlated with a printout of the defendant’s phone records.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Practice Point – If you need to get social media communications admitted (or if you are trying to keep them out) here is the Mississippi Supreme Court’s guidance, as stated by the Court of Appeals in this opinion:

Briggs v. State, 2020-KM-01350-COA (Criminal – Misdemeanor)
Affirming conviction of driving under the influence of marijuana and simple possession of marijuana in a motor vehicle, holding that the evidence was sufficient to support his conviction and that the conviction was not against the overwhelming weight of the evidence.

NOTE – The defendant argued that the State failed to prove he was “influenced” by the marijuana because the State Trooper testified that he never saw the defendant operate the vehicle except to pull the vehicle to the side of the road. The unimpressed Court noted that the State does not have the burden of proving impaired driving, and that the Trooper’s testimony that he smelled strong marijuana odor from the vehicle and observed the defendant’s watery and bloodshot eyes was sufficient.

Dunn v. Hart, 2020-CA-01229-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s findings that the testator/mother had mental capacity to execute a 2015 will but that one of her children (who happened to be the recipient of the mother’s entire estate in the will) failed to rebut the presumption of undue influence by clear and convincing evidence.

NOTE – This is a fact-bound opinion and I do not think any summary I could write of the facts would be particularly helpful, and it would certainly not be a substitute for reading this opinion if it applies to your practice.

Other Orders

Manhattan Nursing and Rehabilitation Center, LLC v. Hollinshed, 2020-CA-00882-COA (denying rehearing)

Hand Down Page

Tag: Road Construction

Mississippi Supreme Court Decisions of August 17, 2023