Tag: Sufficency and Weight of Evidence

Mississippi Court of Appeals Decisions of September 27, 2022

The Mississippi Court of Appeals handed down nine opinions today (and one off-cycle opinion last Thursday). There are several criminal cases (including one with a “marijuana made me do it” defense), a real property case, a lawyer money-fight case, a workers’ comp case, a domestic case, and a couple of PCR cases.

Clemts v. State, 2021-KA-01013-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the verdict was not against the overwhelming weight of the evidence which included testimony that the defendant, the victim, and others were in an argument and the victim grabbed the defendant in an effort to get the defendant to leave the house and the defendant “wheeled around” and stabbed the victim in the abdomen.
(10-0)

Edwards v. State, 2021-KA-00261-COA (Criminal – Felony)
Affirming conviction of second-degree murder and the circuit court’s denial of the defendant’s post-trial motion, holding that there was no error in denying the defendant’s lesser-included culpable negligence manslaughter instruction because there was “no evidence in the record that ingesting marijuana caused the defendant to stab a man eight times.”
(10-0)

NOTE – Might need to consider keeping the reefer madness defense on the shelf.

Loblolly Properties LLC v. Le Papillon Homeowner’s Association Inc., 2021-CA-00767-COA (Civil – Real Property)
Affirming the chancery court’s grant of summary judgment in favor of a HOA over restrictive covenants on lots that were purchased after a foreclosure sale, holding that the bank that purchased the properties after foreclosure agreed that the property was bound by the covenants and the subsequent purchaser then obtained the property by warranty deed that provided that the conveyance was subject to restrictive covenants of record.
(3-3-4: Chief Judge Barnes, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson dissented, joined by Judge Greenlee, Judge Lawrence, and Judge Smith)

NOTE – Put this one on your cert watch list. A fractured, 3-3 majority in favor of affirming carried the day, but the four-judge dissent raised some big-picture issues with the majority opinion.

Hollis v. Acoustics, Inc., 2021-WC-01261-COA (Civil – Workers’ Compensation)
Affirming the MWCC’s ruling that the claimant did not sustain a compensable injury, holding that a injuries from a physical fight with racial slurs stemming from a disagreement regarding the relative merits of playing Christian rap versus country music at the worksite was not a work-related injury where the claimant also admitted that he willfully shoved the other person in a manner not necessary for self-defense.
(10-0)

Scott v. Rouse, 2021-CP-01029-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings on several divorce enforcement matters after the ex-husband faked his own death, was apprehended, and then (with the help of his mother) claimed his ex-wife had wrongful retained his property, holding that all issues were procedurally barred because they were either the subject of a prior timely judgment that had not been timely appealed or the pro se appellants had failed to designated an adequate record for their appeal.
(9-0: Judge Lawrence did not participate.)

Wess v. State, 2020-CP-00704-COA (Civil – PCR)
Affirming the circuit court’s denial of the PCR motion asserting an illegal sentence, holding that the plaintiff’s argument that his sentence was illegal because he was not given the opportunity to withdraw his guilty plea was without merit.
(6-3-0: Chief Judge Barnes and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge Lawrence did not participate.)

Cooper v. State, 2021-CP-01004-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the “writ of habeas corpus” should have been denied because the plaintiff filed it in the circuit court of the county of incarceration (instead of the county of conviction) which lacked jurisdiction to hear the PCR motion.
(10-0)

Wooten v. State, 2021-KA-00737-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence for shooting her boyfriend, holding that the trial court did not abuse its discretion in allowing evidence that the defendant had previously stabbed her ex-husband because it was admissible to show that the shooting of her boyfriend was not an accident or mistake and that the trial court did not err in (1) denying a motion to continue because the defendant had not availed herself of the court’s “considerable powers” to compel the witness’s attendance, (2) sustaining the State’s objection to some of the defendant’s testimony about alleged threats the victim made a month before the shooting, and (3) not sending law enforcement to obtain a witness’s presence after defense counsel declined the trial court’s offer to issue a bench warrant.
(7-3-0: Judge Wilson and Judge Westbrooks concurred in part and in the result; Judge McDonald concurred in result only without separate written opinion.)

Virden v. Campbell Delong, LLP, 2021-CA-00478-COA (Civil – Contract)
Affirming the trial court’s grant of the defendant’s motion for declaratory judgment, holding that a former partner’s claim for a greater share of proceeds from a settlement he obtained while working for the firm was barred by a written agreement governing the withdrawal, termination, or retirement of any partner from the firm.
(5-5: Judge Wilson dissented, joined by Chief Judge Barnes, Judge Greenlee, Judge Lawrence, and Judge Emfinger.)

NOTE – Here is another one for cert-watch: a lawyer-fight over money and a 5-5 decision that leaves the trial court’s ruling in place.

Davis v. State, 2021-KA-00416-COA (Sept. 22, 2022) (Criminal – Felony)
Affirming conviction of felonious abuse of a vulnerable person, holding that the sufficiency and weight of the evidence was adequate to support the conviction and that the trial court did not err in refusing the defendant’s proposed jury instruction for the offense of simple domestic violence.
(4-1-5: Judge Greenlee concurred in part and in the result without separate written opinion; Chief Judge Barnes concurred in part and dissented in part, joined by Judge Wilson, Judge Westbrooks, Judge McDonald, and Judge Emfinger.)

Other Orders

Trotter v. State, 2020-CA-00094-COA (denying rehearing)
Thomas v. Boyd Biloxi, LLC, 2021-CA-00265-COA (denying rehearing)
McCarty v. State, 2021-KA-00418-COA (dismissing untimely pro se motion for rehearing)
Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (denying appellee’s motion for appellate fees; denying motion for rehearing)
Avery v. The University of Mississippi, 2021-CA-00471-COA (granting motion for correction or modification of the Court’s opinion)
Gilmer v. State, 2022-TS-00257-COA (denying State’s motion to strike notice of appeal as untimely)
Morgan v. State, 2022-TS-00287-COA (dismissing appeal as untimely)
Rutledge v. State, 2022-TS-00677-COA (finding good cause to suspend the appeal deadline so the appeal can proceed on the merits)

Hand Down List

Mississippi Supreme Court Decisions of September 15, 2022

The Mississippi Supreme Court handed down three opinions from very different areas of law without a single dissent today. The first is a criminal case challenging the sufficiency and weight of the evidence. The second deals with the circuit court’s subject matter jurisdiction over a election contest. The third is a divorce appeal dashed on the rocks of 54(b).

Burden v. State, 2021-KA-00782-SCT (Criminal – Felony)
Affirming conviction of aggravated assault and denial of the defendant’s motion for new trial, holding that the evidence including testimony, medical records, and photographs was sufficient to show that the victim suffered serious bodily injury and that the defendant attempted to cause serious bodily injury and the verdict was not against the overwhelming weight of the evidence.
(9-0)

Holliday v. Devaull, 2021-EC-00486-SCT (Election Contest)
Reversing the circuit court’s decision ordering a special election, holding that the circuit court lack subject matter jurisdiction because the plaintiff failed to file a sworn copy of his complaint to the Aberdeen Municipal Democratic Executive Committee within the 10-day statutory period and that the second amended petition did not relate back to the original petition.
(9-0)

Williams v. Williams, 2021-CA-00875-SCT (Civil – Domestic Relations)
Dismissing the appeal, holding that an order granting husband’s motion to enforce the divorce agreement and entering what was called a “final judgment” incorporating the divorce agreement was not a final, appealable judgment because the court had not resolved the wife’s complaint for divorce and the grounds for divorce.
(8-1-0)

Practice Point – Our remorseless foe Rule 54(b) strike again. If anything is left to be decided, be sure the judgment you want to appeal contains the magic language of a Rule 54(b) final judgment.

Other Orders

Miles v. State, 2019-CT-00895-SCT (rehearing denied)
Mingo v. McComb School District, 2020-CT-00022-SCT (denying cert)
Simmons v. Town of Goodman, Mississippi, 2021-EC-00563-SCT (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 30, 2022

The Mississippi Court of Appeals handed down eight opinions today. These decisions cover the MTCA, tax assessments, waiver of arbitration, a couple of criminal convictions, and a couple of PCR cases.

Belmer v. State, 2021-CP-00398-COA (Civil – Other)
Dismissing the plaintiff’s appeal from a decision of MDOC’s Administrative Remedy Program as moot because the plaintiff was released on parole during the pendency of the appeal and was not longer incarcerated.
(10-0)

Belmer v. State, 2021-CP-00410-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that it was procedurally barred and without merit.
(10-0)

NOTE– Yes, the first two opinions dealt with the same plaintiff. No typo this time.

Simpson County School District v. Wigley, 2021-CA-00009-COA (Civil – Personal Injury)
Reversing the circuit court’s judgment in an MTCA case against a school district alleging that the district failed to provide adequate supervision when children played tag while awaiting bus repairs, holding (1) that the plaintiff failed to provide sufficient evidence that the district proximately caused the injury that occurred during the course of what seems to have been a garden-variety game of tag and (2) that the plaintiff failed to prove that a failure to render aid caused the plaintiff’s damages
(6-3*: Judge Westbrooks concurred in part and dissented in part without separate written opinion; Judge Lawrence concurred in part and dissented in part, joined by Judge Westbrooks; Judge McCarty dissented, joined by Judge Carlton and in party by Judge Westbrooks and Judge Lawrence)

NOTE – The plaintiff argued that the district was liable for negligent supervision by failing to render timely and appropriate aid to the injured child, but the Court of Appeals noted the plaintiff presented no legal authority for such a duty and declined to rule on the issue of whether a duty existed since the causation element was lacking:

Wilson v. Lexington Manor Senior Care, LLC, 2021-CA-00072-COA (Civil – Contract)
Reversing the circuit court’s order compelling arbitration of a medical malpractice claim against a nursing home, holding that the nursing home waived arbitration by substantial invocation of litigation that included filing an answer with 38 defenses that did not include arbitration as a defense and filing a motion to dismiss and pursuing that motion to a ruling, all before filing a motion to compel arbitration.

NOTE – The nursing home argued that it did not find the arbitration agreement until after the motion to dismiss had been briefed and heard. But the Court of Appeals was not persuaded by this argument since the arbitration agreement had been in the nursing home’s possession the entire time.
(8-2-0: Judge Carlton and Judge Emfinger concurred in the result only)

McNair v. State, 2021-KA-01121-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the evidence was sufficient to support the jury’s verdict and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Perkins v. State, 2021-KA-00129-COA (Civil – Felony)
Affirming conviction of sexual battery and sentence as a non-violent habitual offender after the defendant’s counsel filed a Lindsey brief, holding that the one-page pro se brief denying the crime and making argument after declining to testify at trial did not reveal any basis for reversal.
(9-0: Judge Emfinger did not participate)

BBM Ventures, LLC v. Frierson, 2021-CA-00248-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s judgment affirming MDOR assessments for sales tax liability and for income tax liabilities, holding that the chancellor (1) did not err in ruling that the taxpayers had adequate notice and failed to appeal the sales tax assessment, (2) did not err in evaluating sales tax assessment that arguably did not account for personal use and donation of some inventory, (3) did not err in finding that the taxpayers failed to produce source documentation for the majority of their business expenses or affirming individual income-tax assessment, and (4) did not err in affirming the fraud penalty assessed in conjunction with one of the income-tax assessments.
(8-0: Judge Carlton and Judge McCarty did not participate)

Luckett v. State, 2021-CP-01248-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se PCR motion, holding that the plaintiff’s ineffective assistance of counsel and cumulative error claims lacked merit.
(9-0: Judge Emfinger did not participate)

Parker v. Ross, 2020-CA-01055-COA (denying motions for rehearing filed by five parties)

Finley v. PERS, 2021-SA-00089-COA (denying rehearing)

Smith v. Adams County Youth Court, 2021-CP-00196-COA (denying rehearing)

Pickle v. State, 2021-CP-00972-COA (denying rehearing)

Other Orders

Mississippi Supreme Court Decisions of August 11, 2022

The Mississippi Supreme Court handed down three unanimous opinions today. The lone civil case is an interlocutory appeal of a slip-and-fall case. The other two are criminal cases, one affirmed a conviction and the other reversed a conviction based on the “fruit of the poisonous tree” doctrine.

Byram Cafe Group, LLC v. Tucker, 2021-IA-00723-SCT (Civil – Personal Injury)
Reversing the circuit court’s denial of the defendant’s motion for summary judgment in a slip-and-fall case, holding that the record including the plaintiffs’ deposition testimony did not support their claim that the defendant created a dangerous condition or that the defendant’s negligence caused the fall.
(9-0)

Garrett v. State, 2021-KA-00754-SCT (Criminal – Felony)
Affirming a conviction of burglary of a hotel room, holding that the defendant did not meet his burden on appeal of showing that the conviction was not supported by sufficient evidence or that the verdict was contrary to the overwhelming evidence.
(9-0)

Green v. State, 2021-KA-00617-SCT (Criminal – Felony)
Reversing convictions of conspiracy to commit armed robbery, armed robbery, and burglary of a dwelling, holding that the circuit court erred by admitting evidence that the defendant possessed the victim’s car keys (the “linchpin evidence” supporting the convictions) that was wholly derived from the defendant’s statement that the circuit court had excluded because it was improperly induced.
(9-0)

Other Orders

Clark v. State, 2019-DP-00689-SCT (rehearing denied)

Durrant Inc. v. Lee County, Mississippi, 2019-CT-01826-SCT (denying cert)

Hand Down List

Mississippi Supreme Court Decisions of July 28, 2022

The Mississippi Supreme Court handed down two opinions today. One untangles a web of statutes governing sixteenth section land to determine whether a noncustodial school district could recover past revenue from the custodial school district. The other considered whether a conviction in a second trial violated double jeopardy after the first trial ended in a mistrial.

Wayne County School District v. Quitman School District, 2020-CA-00499-SCT (Civil – Other)
Reversing and rendering on direct appeal and affirming on cross-appeal in a dispute between to school districts about whether revenue generated from sixteenth section land received by the custodial district should have been shared with the noncustodial district, holding that the noncustodial district could not recover past revenue that might have been owed because the noncustodial district did not satisfy Section 29-3-119(4) which places a time limit on when a noncustodial district can make a claim with a custodial district.
(6-3: Justice Griffis dissented, joined by Justice Kitchens and Justice King.)

NOTE – This opinion takes a deep dive to interpret the statutes governing revenue generated by sixteenth section land. At stake was $1,101,413 in funds that the Wayne County School District collected and kept, but that the Quitman School District but could have had a claim to. Here is the Supreme Court’s conclusion:

Wilson v. State, 2021-KA-00473-SCT (Criminal – Felony)
Affirming conviction of aggravated assault, holding that double jeopardy was not violated because the trial court did not abuse its discretion when it found manifest necessity for a mistrial when the defendant’s first trial ended in a mistrial after the defense referenced the victim was incarcerated during opening and holding that the the weight of the evidence was such that allowing the verdict to stand was not an unconscionable injustice.
(7-2: Justice King dissented, joined by Justice Kitchens.)

Other Orders

Jackson v. State, 2014-M-00623 (denying petition for PCR and restricting the plaintiff from filing further PCR applications in forma pauperis)

Ladner v. State, 2020-CT-00299-SCT (denying cert)

Dew v. Harris, 2020-CT-01261-SCT (denying cert)

Kirk v. State, 2022-M-00044 (denying petition for PCR and restricting the plaintiff from filing further PCR applications in forma pauperis)

Hand Down List

Mississippi Court of Appeals Decisions of July 26, 2022

The Mississippi Court of Appeals was short on opinions and long on “housekeeping” orders today. There were two opinions affirming criminal convictions and one chancery matter dealing with division of marital assets, alimony, and custody/visitation. One of the criminal appellants made a scrappy argument that Covid deprived him of due process during his trial.

Boyd v. State, 2021-KA-00066-COA (Criminal – Felony)
Affirming conviction of two counts of murder and one count of aggravated assault stemming from a marijuana deal that went off the rails, holding that the defendant failed to meet his burden of proving ineffective assistance of counsel amounting to a violation of constitutional rights and that review of the record showed affirmatively that his ineffective assistance claims were without merit. The meritless issues raised involved the lack of a request for a jury instruction regarding imperfect self-defense manslaughter, the lack of objection to an investigator’s testimony regarding Facebook messages and the admission of those messages as exhibits, the lack of objection to the State’s cross-examination of the defendant regarding text messages, and the lack of objection to comments by the prosecutor during closing.
(9-1-0)

Walker v. State, 2021-KA-00483-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the evidence was sufficient even without “physical or scientific” evidence, that there was no due process violation in holding trial during the Covid pandemic, that the defendant was procedurally barred from arguing prosecutorial misconduct because he cited no evidence to support it, that there was no error in admitting testimony of two investigators, and that there was no miscarriage of justice in the prosecutor reading only a portion of a jury instruction during closing.
(10-0)

ADDENDUM – COVID and the Law: The defendant argued that fear of Covid created an urgency among the jurors that prevented them from faithfully discharging their sworn duties. This argument failed for want of evidence:

Garner v. Garner, 2021-CA-00038-COA (Civil – Domestic Relations)
Affirming the chancellor’s awards following an irreconcilable differences divorce between an OB/GYN and her husband, rejecting the ex-husband’s arguments on appeal and holding that his award of 48% of the martial property was the product of a proper Ferguson analysis, that there was no error awarding him rehabilitative alimony in lieu of more “accessible cash,” and that chancellor properly applied the Albright factors in awarding sole legal and physical custody to the mother.
(9-1-0)

Other Orders

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (denying rehearing)

Magee v. State, 2020-KA-01378-COA (denying rehearing)

Haynes v. State, 2020-KA-01397-COA (denying rehearing)

Camphor v. State, 2021-CP-00048-COA (recalling mandate and accepting motion for rehearing as timely)

Jones v. State, 2021-KA-01263-COA (dismissing motion to dismiss appeal as untimely and granting appellant’s motion to proceed out-of-time)

Lawrence v. State, 2021-TS-01324-COA (granting appellant’s motion to voluntarily dismiss appeal)

Wilson v. State, 2022-TS-00268-COA (dismissing appeal as untimely)

Harrell v. State, 2022-TS-00276-COA (denying appellant’s pro se motion to reinstate appeal)

Rice v. State, 2022-TS-00400-COA (affirming circuit court’s judgment)

Gutierrez v. State, 2022-TS-00459-COA (dismissing appeal for lack of appealable judgment)

Mississippi Court of Appeals Decisions of June 7, 2022

A deposition took me out of blogging service for most of the afternoon, so a little later than usual I give you summaries of the nine opinions handed down by the Mississippi Court of Appeals. These opinions cover the statute of frauds, trusts, appellate jurisdiction, youth court, authentication of text messages, equitable division and alimony in a divorce case, workers’ comp, PCR, and more.

SEL Business Services, LLC v. Lord, 2021-CA-00368-COA (Civil – Real Property/Statute of Frauds)
Affirming the chancery court’s dismissal of a suit to reclaim property or alternatively for unjust enrichment, holding that a “handshake deal” for the purchase of a building that was sold before that deal came to fruition was subject to the statute of frauds, that the statute of frauds was not satisfied, and that the equitable remedy of unjust enrichment was therefore unavailable.
(All judges concurred.)

Lennon v. Lowrey & Fortner, P.A., 2021-CA-00426-COA (Civil – Wills, Trusts & Estates/Appellate Procedure/Appellate Jurisdiction)
Granting a motion to dismiss an appeal for lack of jurisdiction in a case of first impression, holding that the 30-day time period for perfecting an appeal began to run upon the entry of an order adjudicating a claim for attorney’s fees against a trust–not the final judgment terminating the trust.
(All judges concurred.)

Smith v. Adams County Youth Court, 2021-CP-00196-COA (Civil – Juvenile Justice)
Dismissing an appeal of the denial of a minor’s post-disposition motion for modification arguing that his guilty plea was the result of ineffective assistance of counsel, holding that the notice of appeal was prematurely filed because the youth court had not been given an opportunity to consider these arguments and any supporting evidence.
(Judge Wilson concurred in result only without separate written opinion.)

Warner v. Warner, 2020-CA-01098-COA (Civil – Domestic Relations/Divorce/Valuation/Equitable Division/Alimony/Contempt)
Reversing the chancellor’s judgment in a divorce case, holding that the chancellor erred in valuation and equitable division of marital assets, in the award of alimony, and in finding the ex-husband in contempt and awarding attorney’s fees as a result.
(Judge Wilson concurred in part and in the result without separate written opinion.)

Simpson v. State, 2021-KA-00075-COA (Civil – Felony/Authentication)
Affirming convictions of two counts of first-degree murder, first-degree arson, and possession of a deadly weapon by a felon, holding that there was no plain error with regard to the authentication of text messages and that there was no merit to the claim of ineffective assistance for not objecting to the properly-authenticated text messages.
(Judge Emfinger did not participate.)

Carson v. State, 2021-KA-00436-COA (Criminal – Felony/Weight and Sufficiency)
Affirming conviction of possession of cocaine, holding that the circuit court did not err in denying a motion for new trial challenging the weight and sufficiency of the evidence and finding no merit to the defendant’s pro se arguments that his rights under the Fourth Amendment and the Confrontation Clause were violated, that the State’s case hinged on “racial profiling,” that he had ineffective assistance of counsel, and that the circuit judge failed to comply with Sharplin.
(All judges concurred.)

Ellis v. State, 2020-CP-00770-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was time-barred and that the plaintiff failed to raise any claims resulting in the deprivation of his fundamental constitutional rights that would defeat the time bar.
(Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion.)

Reardon v. State, 2020-CP-01259-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the motion was procedurally barred and that his claims of ineffective assistance of counsel, deprivation of fundamental rights, and failure to recuse were without merit.
(Chief Judge Barnes and Judge Wilson concurred in part and in the result without separate written opinion. Judge McDonald concurred in the result only without separate written opinion. Judge Greenlee and Judge McCarty did not participate.)

Duren v. Effex Management Solutions, LLC, 2021-WC-00337-COA (Civil – Workers’ Compensation)
Affirming the Commission’s ruling, holding that there was substantial evidence to support the Commission’s decision that the claimant failed to prove that he suffered a permanent disability and the decision to award TTD through the date of MMI, but denying post-MMI medical treatment, prescription, and mileage reimbursements.
(Judge Wilson concurred in part and in the result without separate written opinion. Judge Westbrooks and Judge McDonald concurred in the result only without separate written opinion.)

DEEPER DIVE: This case had an interesting post-MMI fact pattern where the claimant was released to return to work without restrictions, was offered to return to work for the Employer at his pre-injury wages, and returned to work there, but then quit working for the Employer due to complaints of pain. Under these facts, the Court of Appeals noted that there was a presumption of no loss of wage-earning capacity and held that the claimant did not overcome it:

Other Orders

Hammer v. State, 2019-KA-01633-COA (denying rehearing)
Shannon v. Shannon, 2020-CA-00847-COA (denying rehearing)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of April 26, 2022

The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.

I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today.
Thanks,
Management

Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence)
Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate.
(Judge Wilson concurred in part and the in the result without separate written opinion.)

Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR)
Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied.
(All judges concurred.)

Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation)
Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence.
(All judges concurred.)

PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:

This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)

Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale)
Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue.
(All judges concurred.)

Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:

NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.

Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation)
Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question.
(All judges concurred.)

Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn)
Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do.
(Judge Smith did not participate, all other judges concurred.)

Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure)
Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right.
(All judges concurred.)

Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence)
Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence.
(All judges concurred.)

Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act)
Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation.
(Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)

NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).

Other Opinions

Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing)
Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)

Hand Down List