Tag: State Boards and Agencies

Mississippi Court of Appeals Decisions of May 9, 2023

The Mississippi Court of Appeals handed down nine ten opinions today. There are two direct criminal appeals, a divorce case, a bad faith insurance case, an appeal of the suspension of police officers, a construction bid appeal, and two PCR cases.

Durr v. State, 2021-KA-01109-COA (Criminal – Felony)
Affirming conviction of conspiracy to commit armed robbery, capital murder, armed robbery, and aggravated assault, holding that ineffective assistance claim based on Defendant’s representation by the same public defender’s office that represented codefendents who testified against Defendant should be dismissed without prejudice and that if there was error in admitting a codefendant’s affidavit as substantive it was harmless.
(8-2: Westbrooks dissented, joined by McDonald; McDonald also dissented without separate written opinion.)

Hughes v. State, 2021-CP-01241-COA (Civil – PCR)
Affirming denial of PCR motion to vacate PRS revocation and imposition of suspended sentence, holding that the circuit court did not err in ruling based on absconscion.
(10-0)

Sanders v. State, 2022-KA-00351-COA (Criminal – Felony)
Affirming conviction of failing to update sex offender registration, holding based upon review of a Lindsey Brief, review of a pro se brief, and the record that there were no arguable issues that would warrant reversal.
(10-0)

Adams v. City of Jackson, 2021-CC-00454-COA (Civil – State Boards and Agencies)
Reversing the circuit court’s decision affirming the suspension of two officers for engaging in a pursuit while Jackson had a no-pursuit policy, holding that the clear and substantial evidence showed that there was no “pursuit” where an officer initiated a traffic stop and followed the suspect for just over a mile at between 10-20mph.
(8-1: McDonald dissented without separate written opinion; Westbrooks did not participate.)

Davis v. Davis, 2021-CA-01246-COA (Civil – Domestic Relations)
Affirming in part and reversing in part a chancellor’s judgment of divorce, holding there was no error in granting divorce on the grounds of adultery but holding that the chancellor did not properly classify and value certain assets and debts and remanded for proper classification and valuations.
(8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)

PRACTICE POINT – Make the trial court’s job easy! It is good advocacy and it is the humane thing to do.

Watkins v. State, 2021-CP-01301-COA (Civil – PCR)
Affirming denial of PCR motion, holding that all issues were procedurally barred and without merit.
(9-1-0: Emfinger concurred in part and in the result without separate written opinion.)

Groves v. State, 2021-KA-00755-COA (Criminal – Felony)
Affirming conviction of kidnapping and armed robbery, holding that the circuit court did not err in allowing the use of the word “victim” to describe the victim, that the claim of prosecutorial misconduct during closing arguments was procedurally barred and without merit, and that the verdict was supported by substantial evidence and was not against the overwhelming weight of it.
(10-0)/

Gregory Construction Services, Inc. v. Miss. Dept. of Finance and Admin., 2021-SA-00765-COA (Civil – State Boards & Agencies)
Affirming determination that a contractor’s denied construction bid was non-responsive for failing to include a one-page federal form, holding that there were no due process considerations since the plaintiff had no vested property interest in the denied bid and the agencies’ decisions were supported by substantial evidence and reasoning.
(9-0: McCarty did not participate.)

Holloway v. Nat’l Fire & Marine Ins. Co., 2021-CA-01066-COA (Civil – Insurance)
Affirming summary judgment in a bad faith case alleging that a reservation of rights was in bad faith and caused emotional distress even though the carrier ultimately funded a settlement to secure a release of all claims against the insured, holding that the carrier had a legitimate basis for defending under a reservation of rights.
(9-1-0: Westbrooks concurred in result only without separate written opinion.)

Other Orders

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CA-00605-COA (denying rehearing)

Moreland v. Spears, 2021-CA-00714-COA (denying rehearing)

Lamy v. Lamy, 2021-CA-00770-COA (denying rehearing)

Colburn v. State, 2021-KA-00865-COA (denying rehearing)

Brooks v. Jeffreys, 2021-CA-01113-COA (denying rehearing)

Nunn v. State, 2021-KA-01371-COA (recalling mandate to allow pro se motion for rehearing to proceed on the merits)

MS Concrete and Benchmark Ins. Co. v. Harris, 2022-WC-01095-COA (denying motion for rehearing of dismissal of appeal)

Hunter v. State, 2022-TS-01269-COA (granting motion for reconsideration and denying motion for appointment of counsel)

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Mississippi Supreme Court Decisions of April 27, 2023

The Mississippi Supreme Court handed down two opinions today. Both decisions are 6-3 reversals. One is an appeal of a summary judgment ruling in a slip-and-fall case and the other is an appeal of a zoning decision.

Thomas v. Boyd Biloxi, LLC, 2021-CT-00265-SCT (Civil – Personal Injury)
Reversing the COA’s decision affirming summary judgment in favor of a resort in a slip-and-fall on a pool deck case, holding that two prior falls and evidence that water pooled in the area where the plaintiff fell was sufficient evidence of breach and that there was evidence that a breach of duty proximately caused the fall.
(6-3: Griffis dissented, joined by Coleman and Ishee.)

City of Ocean Springs v. Illanne, 2021-CA-01100-SCT (Civil – State Boards and Agencies)
Reversing the circuit court’s reversal of a City’s zoning decisions, holding that remand was necessary for a hearing to determine whether a zoning applicant was a “petitioner” under Section 11-51-75 such that the failure to name him and give him notice deprived the circuit court of jurisdiction.
(6-3: Coleman dissented, joined by Randolph and Griffis)

Other Order

La Casa I, LLC v. Gottfried, 2021-CT-00347-SCT (denying cert)

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Mississippi Court of Appeals Decisions of April 4, 2023

I am playing catch-up because my paying work had me preoccupied last week. The Mississippi Court of Appeals handed down seven opinions last Tuesday. There were a couple of direct criminal appeals, an alimony case, an appeal of a $2.8M auto liability verdict, a couple of PCR cases, and an appeal of an MDOC issue.

Gillenwater v. Redmond, 2021-CA-01378-COA (Civil – Domestic Relations)
Affirming modification of alimony, holding that chancellor did not abuse her discretion by reducing (but not terminating) the alimony obligation based on the ex-wife’s cohabitation and mutual support.
(8-1-0: Westbrooks concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Tubwell v. State, 2022-KM-00342-COA (Criminal- Misdemeanor)
Affirming conviction of violating the child-restraint laws, holding that there was sufficient evidence to support the conviction where there were two adults and three children in a single-cab pickup and one child was sitting in the driver’s lap.
(8-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion.)

Winters v. State, 2022-CP-00435-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in finding that the motion was time-barred, successive, and without merit.
(10-0)

Williamson v. State, 2021-KA-00830-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, burglary of a shed, and trafficking stolen firearms, holding that the evidence was sufficient and that the verdict was not against the weight of it and that there was no error admitting evidence of other crimes, in denying a motion to suppress evidence obtained in a search of the defendant’s home, in denying a motion for continuance, or in not halting trial during a power outage.
(10-0)

Everett v. State, 2021-CP-01385-COA (Civil – PCR)
Affirming the denial of a PCR motion, holding that the illegal sentence claim was time-barred and without merit and that the claim regarding earned-discharged credits was properly dismissed because that claim should have been filed in the venue where the plaintiff is housed.
(8-1-0: No separate opinions – Westbrooks concurred in result only and Smith did not participate)

Robinson v. MDOC, 2022-CP-00018-COA (Civil – State Boards & Agencies)
Affirming denial of petition for judicial review after the petitioner was denied a request to participate in the Meritorious Earned TIME Incentive Program, holding that the circuit court did not err in finding that the court lacked personal jurisdiction because MDOC had not been given notice of the appeal and that the petitioner failed to exhaust his administrative remedies.
(8-2-0: No separate opinions – McCarty concurred in part and in the result and McDonald concurred in result only.)

Kirk v. Newton, 2021-CA-00684-COA (Civil – Tort)
Affirming a nearly $2.8 million verdict in an auto liability case, holding that the question of who caused the accident was a fact issue for the jury, that there was no evidence of bias, passion, or prejudice to show that the award should be reduced or set aside, and that there was no error in using national average for wage calculation that was lower than the plaintiff’s actual wages where the jury heard both sides from experts and weighed their credibility.
(8-1-1: Wilson concurred in part and in the result without separate written opinion; Greenlee dissented.)

NOTE – I do not think this case represents the departure from Rebelwood that I thought it would when I was first reading it. My take is that the fact that the national average figure used by the plaintiff was less than the actual wage-earning history was critical to this decision.

Other Orders

$41,080 v. State, 2021-CA-00692-COA (denying rehearing)

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (denying rehearing)

Owens v. State, 2021-KA-000887-COA (denying rehearing)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of March 21, 2023

The Mississippi Court of Appeals handed down four opinions on Tuesday. It was an eclectic mix, including a workers’ comp case, a dysfunctional two-member LLC , a wrongful death case against a sheriff’s deputy, and an inmate’s request for removal of a rule violation report.

Holloway v. King, 2021-CP-01351-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s decision that affirmed the denial of an inmate’s request for the removal of a rule violation report, holding that the circuit court did not have jurisdiction because the petitioner did not comply with the notice requirements of UCRCCC 5.04.
(6-4: McCarty dissented, joined by Westbrooks, McDonald, and Lawrence.)

Myrick v. UMMC, 2021-WC-01401-COA (Civil – Workers’ Comp)
Affirming MWCC order, holding that there was substantial, credible evidence to support the Commission’s finding that the Employer/Carrier overcame the presumption of permanent total disability and that the claimant’s post-injury back surgery was not related to her compensable back injury.
(7-3-0: Westbrooks, McDonald, and McCarty concurred in part and in the result without separate written opinion.)

Colson v. Warren, 2021-CA-01408-COA (Civil – Other)
Affirming on direct and cross appeal the chancery court’s decisions denying a claim to dissolve a two-member LLC, holding that the two members should cooperate in drafting and implementing an operating agreement and opening a bank account to deposit rental revenue checks payable to the LLC that had been piling up.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Renfroe v. Parker, 2021-CA-01048-COA (Civil – Wrongful Death)
Affirming summary judgment in favor of the law-enforcement defendants in a wrongful death suit after a suspect was killed by a deputy, holding:
1. Res judicata did not bar the plaintiff’s state law tort claims after the federal district court dismissed her 1983 claims with prejudice and her state law claims without prejudice.
2. The deputy and the sheriff were entitled to immunity on the official-capacity claims
3. Collateral estoppel barred the claims for IIED, assault, and battery because the federal district court found that the deputy’s use of force was “objectively reasonable.”
4. Even if collateral did not bar the IIED, assault, and battery claims, the plaintiff did not come forward with evidence to defeat summary judgment.
(7-2: McDonald concurred in part and dissented in part, joined by Westbrooks. Judge Emfinger did not participate.)

NOTE – According to testimony, the deputy shot the suspect after the suspect charged at the deputy, withstood a taser (pulling the electrodes out of his chest), had a physical altercation with the deputy, and then charged at the deputy a second time. The fact that the suspect did this while wearing pajama pants did not sway the courts at any level.

Other Orders

Green v. State, 2021-KA-01019-COA (rehearing denied)

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Mississippi Supreme Court Decisions of March 16, 2023

The Mississippi Supreme Court handed down six opinions today. Like the Court of Appeals on Tuesday, the Supreme Court’s decisions were all unanimous but appellants batted .500 at the Supreme Court. Today’s decisions include a med mal expert case, a board of aldermen case, a municipal boundaries case, an “intimately connected doctrine” premises case, an alienation of affection case, and a mortmain laws case.

UMMC v. Kelly, 2022-IA-00034-SCT (Civil – Medical Malpractice)
Reversing denial of summary judgment to UMMC, holding that the trial court abused its discretion in finding the plaintiff’s expert physician was qualified in the areas of treating impact injuries and infections where the parties agreed the doctor was a licensed ER doctor but the plaintiff did not produce a CV.
(9-0)

City of Canton, Mississippi Board of Aldermen v. Slaughter, 2021-CA-01210-SCT (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of Board of Aldermen’s decision to remove two members of the Canton Municipal Utilities Commission, holding that the commissioners were deprived of procedural due process when the mayor vetoed the issuance of notice and opportunity to be heard and that veto was not overridden by the BOA.
(9-0)

City of Jackson v. City of Pearl, 2021-AN-01422-SCT (Civil – Municipal Boundaries & Annexation)
Affirming the circuit court’s voidance of the City of Jackson’s ordinance that would incorporate land around JAN, holding that Jackson failed to obtain consent of the Rankin County Board of Supervisors before passing the ordinance.
(9-0)

White v. Targa Downstream, LLC, 2022-CA-00020-SCT (Civil – Personal Injury)
Reversing summary judgment for a premises owner, holding that the intimately connected doctrine does not give immunity to a premises owner when there is a fact issue regarding whether the premises owner created a dangerous condition and whether the independent contractor had actual or constructive notice of the condition.
(9-0)

NOTE – Here is the Court’s Conclusion:

Davis v. Davis, 2020-CA-01304-SCT (Civil – Torts-Other)
Reversing jury award in an alienation of affection case, holding that the claim was barred by the statute of limitations and the plaintiff failed to request proper jury instructions on damages.
(7-2-0: Chamberlin specially concurred joined by Griffis)

NOTE – Chamberlin’s special concurrence called for the abolition of the tort of alienation of affection.

Mississippi Baptist Foundation v. Fitch, 2022-CA-00065-SCT (Civil – Wills, Trusts & Estates)
Affirming the trial court’s grant of summary judgment to heirs, holding that MBF had a possessory interest over a mineral interest as trustee, that the trustor’s death triggered the 10-year portion of the mortmain laws, and MBF failed to protect its alleged rights during that period and could not assert the forty years later.
(9-0)

Other Orders

Gardner v. Jackson, 2020-CT-01313-SCT (cert denied)

McGillberry v. Ross, 2021-CT-01076-SCT (cert denied)

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Mississippi Supreme Court Decisions of March 9, 2023

The Mississippi Supreme Court handed down three opinions today and not one is pedestrian. The first involves whether the loser in an insurance coverage dec action can come back after the mandate in the dec action and after being vindicated in the underlying liability action, to get relief under Rule 60(b) from the no-coverage judgment. In the next case, the Court weighs in on the Jackson mayor’s attempt to veto the city council’s inaction on the garbage collection contract. The third case is an appeal of an order of contempt and order denying recusal after the attorney failed to appear at trial after representing to the circuit court that he had Covid.

Scruggs v. Farmland Mut. Ins. Co., 2021-CA-00877-SCT (Civil – Insurance)
Affirming the circuit court’s denial of a Rule 60(b) motion, holding that the mandate rule deprived the circuit court of jurisdiction to entertain a Rule 60(b) motion twenty years after the Supreme Court’s opinion and mandate.
(9-0)

CONTEXT – The facts make this ruling a bit more interesting than the holding suggests. Many years go, the plaintiffs (Scruggses) lost an insurance coverage dec action in state court 20 years ago. Coverage had been denied because the Scruggses were accused of committing intentional acts by Monsanto. The Scruggses then prevailed in Monsanto’s federal lawsuit against them. I’ll let the Supremes take it from here:

Lumumba v. City Council of Jackson, 2022-CA-00855-SCT (Civil – State Boards and Agencies)
Affirming the special chancellor’s summary judgment in favor of the city council in this episode of Jackson’s garbage-collection saga, holding that the mayor did not have legal authority to veto a non-action or negative vote of the city counsel the city council’s non-ratification of the garbage collection contract presented by the mayor.
(9-0)

NOTE – The Court also held that the trial court did not err in allowing the city council to admit exhibits (public records that had been produced to the mayor) at the MSJ hearing that were not yet filed in the record of that case and that the chancellor did not err in denying the mayor’s motion for additional findings because the mayor could not both object to the court’s consideration of the city council’s exhibits while also asking the court to consider the mayor’s extrinsic evidence.

In Re: Ali M. Shamsiddeen, 2021-CA-01217-SCT (Civil – Other)
Affirming order of contempt and order denying recusal, holding that the trial court did not err in finding defense counsel in contempt for failing to appear at a pretrial conference (in person or virtually, after being given that opportunity) or at the trial because defense counsel said he had COVID but only provided a vague medical excuse and quarantine order but refused to provide medical documentation of the diagnosis.
(7-2: Kitchens dissented, joined by King)

NOTE – Here is the email the attorney sent to the court on the eve of trial.

Other Orders

In Re: Local Rules, 89-R-99015-SCT (granting motion to amend Tenth Chancery Court District’s local rules)

Shannon v. Shannon, 2020-CT-00847-SCT (dismissing previously-granted cert sua sponte)

Simmons v. Jackson County, 2020-CT-01014-SCT (denying cert)

Young v. Freese & Goss PLLC, 2020-CT-01280-SCT (denying cert)

Boyd v. State, 2021-CT-00066-SCT (denying cert)

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CT-00258-SCT (denying cert)

Hand Down List

Mississippi Supreme Court Decisions of February 9, 2023

On Thursday, the Mississippi Supreme Court handed down one opinion, and I was approaching the confluence of a dispositive/Daubert motions deadline in one case and an expert designation deadline in another.

Heritage Hunter Knoll, LLC v. Lamar County, Mississippi, 2021-CA-01325-SCT (Civil – States Boards and Agencies)
Affirming in part and denying in part the dismissal for lack of jurisdiction of a property owner’s appeal of the County Board’s decisions related to a waste ordinance, holding that the appeal of an amendment to the ordinance was time-barred because it was not appealed within the 10-day time limitation in section 11-51-75, but also holding that the appeal of the Board’s denial of a variance request was timely filed and remanding for a full hearing on that issue.
(9-0)

NOTE – The Supreme Court also held that the property owner did not engage in claim splitting when it filed a separate lawsuit in federal court while appealing the Board’s actions:

Other Orders

Wallace v. State, 2020-M-00979 (denying application for leave to file motion for PCR, finding the filing frivolous, and warning against future frivolous filings)

Crossgates United Methodist Church v. Ming, 2020-IA-01358-SCT (dismissing interlocutory appeals)

White v. White, 2021-CT-00333-SCT (denying cert)

Beasley v. State, 2021-CT-00653-SCT (denying cert)

Norwood v. State, 2021-CT-00802-SCT (denying cert)

Bland v. State, 2021-KA-00973-SCT (denying rehearing)

Patterson v. MDES, 2021-CT-01150-SCT (dismissing “notice of appeal” and cert petition)

In re: Debbie Travis Robertson, 2022-M-01032 (denying petition for disqualification of judge)

In re: William C. Spencer, Jr., 2022-M-01041 (denying petition for disqualification of judge)

Hand Down List

Mississippi Supreme Court Decisions of January 19, 2023

The Mississippi Supreme Court handed down two opinions today and both are reversals. One is an appeal of a property tax valuation and the other is an appeal of a chancellor’s decision disqualifying an attorney under Rule 4.2 of the Mississippi Rules of Professional Conduct due to the attorney’s prior representation of a partnership in a lawsuit involving one of the partners.

Mississippi Hub, LLC v. Baldwin, 2021-CA-00935-SCT (Civil – State Boards and Agencies)
Reversing summary judgment that found an appeal of a property tax valuation was untimely, holding that the appeal was timely and that there were genuine issues of material fact as to the value of the underground natural gas facility at issue.
(8-1-0: Chief Justice Randolph concurred in result only without separate written opinion)

Pettis v. Simrall, 2021-IA-01253-SCT (Civil – Contract)
Reversing the chancellor’s decision disqualifying counsel under Rule 4.2 of the Rules of Professional Conduct because of an alleged conflict of interest, holding that no attorney-client relationship between an attorney and a partner in a general partnership can be implied from an attorney’s representation of the general partnership and that a chancellor may not preemptively disqualify an attorney for practices and proceedings that were not before the court.
(9-0)

Other Orders

Chism v. State, 2018-M-01436 (denying application for leave to file motion for PCR, finding that the filing was frivolous, and warning against future frivolous filings)

Parker v. Ross, 2020-CT-01055-SCT (granting cert)

Roberson v. State, 2022-CT-01208-SCT (denying cert)

Skinner v. State, 2021-CT-00080-SCT (denying cert)

Sel Business Services, LLC v. Lord, 2021-CT-00368-SCT (granting cert)

Terpening v. F.L. Crane & Sons, Inc., 2021-CT-00544-SCT (denying cert)

Longo v. City of Waveland, 2021-CA-00735-SCT (denying rehearing)

Lewis v. State, 2021-CT-00736-SCT (denying cert)

Hand Down List

Mississippi Supreme Court Decisions of December 8, 2022

The Mississippi Supreme Court handed down to five opinions today. One wades into a contingency-fee contract dispute, one is a statutory interpretation case involving the bond for appeals by former public school employees, one addresses the admissibility of a defendant’s lay testimony that he suffers from PTSD, and two are related to Bar disciplinary proceedings.

Gilmer v. McRae, 2021-CA-00028-SCT (Civil – Contract)
Affirming the trial court’s dismissal of a complaint stemming from a dispute over a contingency fee arrangement and its award of attorney’s fees, holding that the defendant’s attorneys (who were also defendants) were immune from suit as they were acting in their capacity as attorneys, there was no abuse of discretion in awarding attorney’s fees against the plaintiff, and there was no abuse of discretion in denying the plaintiff’s amended motion to amend.
(9-0)

Greenville Public School District v. Thomas, 2021-IA-00456-SCT (Civil – State Boards and Agencies)
Affirming on interlocutory appeal the chancellor’s decision setting the bond for an appeal by a former public school district employee, holding that section 37-9-113(2) does not require a bond to cover the cost of the transcript and that there was no abuse of discretion in setting the bond at the statutory minimum of $200.
(8-1-0: Justice Ishee concurred in part and and in the result)

Bland v. State, 2021-KA-00973-SCT (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by excluding the defendant’s lay testimony claiming he suffered from PTSD.
(5-4-0: Justice Kitchen concurred in part and in the result, joined by Justice King, Justice Coleman, and Justice Ishee–this concurrence opined that the exclusion was error but that the error was harmless)

Louvier v. The Mississippi Bar, 2022-BR-00205-SCT (Civil – Bar Matters)
Granting reinstatement over the Bar’s opposition.
(9-0)

The Mississippi Bar v. Petty, 2022-BD-00402-SCT (Civil – Bar Matters)
Ordering public reprimand and payment of the Bar’s costs.
(9-0)

Other Orders

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing or reappointing members of the Advisory Committee on Rules)

Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CT-00781-SCT (denying cert where COA affirmed summary judgment for defendant in slip and fall case as summarized here) [*Corrected link]

Hand Down List

Mississippi Court of Appeals Decisions of December 6, 2022

The Mississippi Court of Appeals wore me out with nine opinions today. There is something for just about everybody below including crimes, conservatorships, and contracts. One case includes a nightmare scenario where an order of dismissal was entered and the plaintiff’s attorney did not receive notice of it until well after the appeal deadline passed, and there is a special concurrence shining a beacon of hope for litigants who find themselves in this situation.

McLendon v. State, 2022-CP-00057-COA (Civil – PCR)
Affirming summary denial of a motion for post-conviction collateral relief, holding that a proper factual basis was shown as to each element of the offense during the guilty plea.
(10-0)

Davis v. State, 2021-KA-00759-COA (Criminal – Felony)
Affirming convictions of armed robbery and kidnapping, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial based on inadmissible testimony from the police chief that the defendant had been previously incarcerated for burglary.
(7-3-0: Judge McDonald specially concurred, joined by Chief Judge Barnes, Judge Greenlee, and Judge Westbrooks; Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in the result only without separate written opinion.

N0te – Here is how the trial court handled the inadmissible testimony:

Owens v. State, 2021-KA-00887-COA (Criminal – Felony)
Affirming conviction of burglary of a business, holding that the conviction was not against the weight of the evidence .
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)

Note – The dissent argued that the conviction was against the weight of the evidence and discussed the evidence that was presented. The dissent embedded into the opinion stills from surveillance videos that were shown to the jury was extremely helpful in understanding the evidence that was presented and that was being discussed.

State v. Hudson, 2021-KA-01232-COA (Criminal – Felony)
Dismissing the State’s appeal of a directed verdict of acquittal, holding that the appeal was not authorized by section 99-35-103(b) because the issues on appeal did not present the Court with a pure question of law.
(10-0)

The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CA-01077-COA (Civil – Contract)
Reversing summary judgment in favor of the defendants on a breach of contract and fraud complaint related to fees the defendant allegedly owed the plaintiff for recruitment services, holding that there was a fact dispute over the existence of a contract.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Atkins v. Moore, 2021-CA-00780-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s final judgment approving a conservator’s final accounting, holding that the conservator had not misspent or converted funds and that the plaintiff was not otherwise entitled to relief.
(9-1-0: Judge Westbrooks specially concurred, joined by Judge McDonald and joined in part by Judge McCarty)

Note – The Court of Appeals took issue with several aspects of the proceedings below, but found none warranted reversal. Here is the Court’s conclusion:

Another Note – This opinion cites a post by Jane Stroble Miller from Judge Larry Primeaux’s The Better Chancery Court Practice Blog, noting that it “provides a very helpful discussion on the need for ‘vouchers’ to support and accounting.” I fail to see a downside in favorably citing law blogs in judicial opinions.

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (Civil – Contract)
Dismissing the appeal in part and affirming in part, holding that the Court did not have jurisdiction to review the order granting the motion to dismiss where it was not timely filed because counsel did not receive notice of the judgment and dismissing that part of the appeal and affirming the denial of the plaintiff’s motion to reconsider.
(8-2-0: Judge McCarty specially concurred, joined by Judge Greenlee, Judge Westbrooks, Judge McDonald, Judge Lawrence, and Judge Smith; Judge Emfinger concurred in the result only without separate written opinion)

Practice Point – Judge McCarty’s special concurrence highlights a lifeline to litigants in the unfortunate situation of not receiving notice of an appealable judgment until after the deadline to file a notice of appeal:

Note – It is a credit to the appellee and appellee’s counsel for not arguing untimeliness under these circumstances at any point in the process.

DeSoto County v. Vinson, 2021-CC-00864-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s reversal of the DeSoto County Board of Supervisors’ approval of a landowner’s application to subdivide a residential lot, holding that the landowner’s failure to accompany the application with names of persons adversely affected or directly interested and their signatures approving the division violated section 17-1-23(4).
(8-1-1: Judge Emfinger concurred in the result only without separate written; Judge Wilson dissented)

Burchett v. State, 2021-KA-00776-COA (Criminal – Felony)
Affirming conviction of murder, holding that there was no evidence to supporting a lesser-included instruction on heat of passion manslaughter.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Westbrooks concurred in part and dissented in part, joined in part by Judge McDonald)

Other Orders

Young v. Freese & Goss, PLLC, 2020-CA-01280-COA (denying rehearing)

Simpson County School District v. Wigley, 2021-CA-00009-COA (denying rehearing)

Boyd v. State, 2021-KA-00066 (denying rehearing)

Nguyen v. Bui, 2021-CP-00538-COA (denying rehearing)

McGilberry v. Ross, 2021-CP-01076 (denying rehearing)

Hand Down List