The Mississippi Court of Appeals handed down five opinions this week. There is a domestic/separate maintenance decision, a third-party assault tort case, a direct appeal of a felony conviction, and two PCR cases.
Hasley v. Hasley, 2022-CA-00908-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancellor’s decision in a separate maintenance action, holding that there was no abuse of discretion in denying the husband’s motion to dismiss the complaint but that the chancellor erred by converting the temporary orders of spousal support to a final order. (10-0)
White v. State, 2023-CP-00200-COA (Civil – PCR) Reversing the circuit court’s revocation of release, holding that because the circuit judge had been the assistant DA who had prosecuted the petitioner the judge was disqualified from presiding over the revocation hearing and that this error was not harmless. (9-0: Smith did not participate)
Mack v. Merimac Apartments, 2022-CA-00897-COA (Civil – Torts) Affirming summary judgment in a third-party assault case against an apartment complex, holding that evidence of some crime occurring on and near the subject property was sufficient summary judgment evidence on the element of proximate cause. (6-3-1: Barnes and Wilson concurred in part and in the judgment without writing; Westbrooks concurred in the result only without writing; McDonald concurred in part and dissented in part without writing)
Galarza v. State, 022-KA-01066-COA (Criminal – Felony) Affirming conviction of first-degree murder and possession of a firearm by a felon, holding that the circuit court did not abuse its discretion in admitting character evidence of the defendant’s prior convictions for manslaughter. (7-3-0: Wilson and Emfinger concurred in part and in the result without writing; McCarty concurred in the result only without separate written opinion.)
Smith v. State, 023-CP-00538-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the petitioner’s claims were procedurally barred and that there was no merit to the petitioner’s arguments that he was entitled to a bifurcated hearing at sentencing and that there was insufficient proof of his prior convictions to warrant his sentencing as a habitual offender. (10-0)
Other Orders
Kuebler v. State, 2020-KA-00027-COA (remanding sua sponte for correction of the record)
Okorie v. National Association Wells Fargo Bank, 2022-CP-00043-COA (denying appellant’s pro se “motion to reopen case based on fraudulent settlement agreement”)
Moore v. State, 2022-KA-00327-COA (denying rehearing)
Edwards v. State, 2022-KA-00719-COA (denying rehearing)
Smith v. State, 2022-KA-00852-COA (denying rehearing)
Saddler v. State, 2024-TS-00099-COA (sua sponte allowing appeal to proceed)
The Mississippi Court of Appeals handed down six opinions on Tuesday. I had court in Union County that took me out of the office most of the day Tuesday. I then spent Wednesday making up for being out of the office on Tuesday, as one does. (Obligatory courthouse picture, infra.)
Taylor v. Johnson, 2022-CA-00734-COA (Civil – Personal Injury) Affirming grant of summary judgment in a car wreck negligence case, holding that there was no competent summary judgment evidence that the defendant proximately caused the collision, and then affirming summary judgment on the direct-negligence and punitive damages claims as moot. (8-1-1: McDonald concurred in result only without writing; Westbrooks dissented without writing)
Whiddon v. State, 2022-KA-00616-COA (Criminal – Felony) Affirming conviction of first-degree murder, aggravated assault with a deadly weapon, aggravated assault of a law enforcement officer, and fleeing a law enforcement officer, holding that the trial court did not err in denying motions to dismiss for lack of speedy trial, that the circuit court abused its discretion in excluding videotaped witness statements but that the error was harmless, that the court did not commit reversible error in commenting in front of the jury that a witness was “an excellent investigator,” that the evidence was sufficient to support the verdict, and that the verdict was not against the overwhelming weight of the evidence. (7-3-0: McDonald and Emfinger concurred in part and in the result without writing; Wilson concurred in the result only without writing)
Turner v. Turner, 2023-CA-00216-COA (Civil – Domestic Relations) Reversing dismissal of complaint for divorce, holding that the chancellor erred by considering matters outside of the pleadings when ruling on a motion to dismiss under Rule 12(b)(6) without converting it into a motion for summary judgment and providing necessary notice. (10-0)
Suarez v. State, 2023-KA-00526-COA (Criminal – Felony) Affirming conviction of burglary of an occupied dwelling under circumstances likely to terrorize the occupant, holding that the evidence was sufficient to support his conviction and that the trial court did not err in refusing the defendant’s lesser-included-offense jury instruction. (7-3-0: Wilson, McDonald, and McCarty concurred in result only without separate written opinion)
Harris v. State, 2023-CP-00227-COA (Civil – PCR) Affirming denial of PCR motion following probation revocation, holding that the trial court’s failure to inquire about the petitioner’s ability to pay his fees and assessments was harmless error at most. (10-0)
Crawford v. East Miss. State Hospital, Inc., 2022-CA-00753-COA (Civil – Wrongful Death) Affirming judgment in favor of a hospital in a wrongful death lawsuit after bench trial, holding that the circuit court did not err in finding that the plaintiff did not prove the proximate cause element or in denying the plaintiff’s claim for the decedent’s “lifetime damages” because the estate was initially a party before being removed as a party via amendment to the complaint. (6-2: McCarty concurred in part and dissented in part, joined by Westbrooks; McDonald and Smith did not participate)
Other Orders
Mississippi Dept. of Rehab. Servs v. Butler, 2022-CA-00176-COA (rehearing denied)
Harris v. Ratcliff, 2022-CA-00596-COA (rehearing denied)
Simmons v. State, 2022-KA-01260-COA (rehearing denied)
The Mississippi Court of Appeals handed down four opinions yesterday. There was a wills and estates case that was more of an appellate procedure case, a real property contract for sale case, a direct criminal appeal, and a tort/statute of limitations case.
Brown v. Black, 2022-CA-00869-COA (Civil – Wills, Trusts & Estates) Dismissing appeal of a chancellor’s decision awarding attorneys fees, holding that the 2021 order on attorney’s fees was final and appealable regardless of 2022 certification and that the appeal was therefore untimely. (9-0: Smith did not participate)
Eaton v. Haney, 2022-CA-00656-COA (Civil – Contract) Affirming the chancellor’s decision requiring specific performance for sale of real property and awarding damages and attorneys fees, holding that there was a valid contract for the sale of the real property and that the fact dispute between the parties was for the chancellor to decide and that the award of attorney’s fees was within the chancellor’s discretion. (9-1: Emfinger dissented)
Hand v. State, 2022-KA-00819-COA (Criminal – Felony) Affirming conviction of kidnapping and child exploitation, holding that the verdicts were not against the overwhelming weight of the evidence. (10-0)
Pettis v. Northeast Mississippi Electric Power Association, 2022-CA-00688-COA (Civil – Torts) Affirming dismissal of a negligence claim under the doctrine of res judicata and the IIED and loss of consortium claims on statute of limitations grounds, holding that the discovery rule did not apply and that any fraudulent concealment arguments were waived for failure to raise them in the trial court. (7-1-0: Westbrooks and McDonald concurred in result only without written opinion, Barnes did not participate)
Other Orders
Brown v. State, 2022-KA-00446-COA (denying rehearing)
Russell v. State, 2022-KA-00447-COA (denying rehearing)
Snyder v. Estate of Cockrell, 2022-CA-00597 (denying rehearing)
Galvan v. State, 2022-KA-00655-COA (denying rehearing)
I was out of the office Thursday for an extended weekend camping trip on Horn Island with my oldest son, so hand downs were a bit lower on my priority list than usual. (Proof submitted below.)
While I was at sea, the Mississippi Supreme Court handed down three opinions and appellants went 2-1.
Tommy Brooks Oil Company v. Wilburn, 2022-CA-00551-SCT (Civil – Contract) Reversing on direct appeal and affirming on cross-appeal after judgments in favor of the defendants on open-account claims, holding that the defense verdict on the open-account was not supported by substantial evidence, and that the plaintiff was entitled to judgment in its favor on liability, and remanding for a new trial on damages and the enforceability of personal guaranty agreements while affirming the denial of the defendants’ claim for attorney’s fees. (8-0: Maxwell did not participate)
In Re: Death Investigation of Christian Andreacchio, 2023-CA-00060-SCT (Civil – Other) Affirming the circuit court’s denial of a petition to appoint an attorney to act as district attorney in an effort to spur prosecutions, holding that Mississippi’s victims’ rights statutes did not grant standing to the Estate and that there is no other basis in Mississippi law to allow a private citizen to direct the State’s prosecutorial powers. (8-1-0: King concurred in result only without separate written opinion)
Lindsey v. Butts, 2022-IA-00738-SCT, consolidated with 2022-IA-00882 (Civil – Wrongful Death) Reversing the circuit court’s denial of the doctor-defendant’s motion to dismiss for lack of process and denial of the hospital defendant’s motion for summary judgment, holding that the trial court erred by not dismissing the complaint against the doctor because he was never legally served with process which left the circuit court lacking jurisdiction over him and holding that the circuit court erred in denying the hospital’s “preemptive” motion for summary judgment because the plaintiff lacked medical-expert testimony even though the plaintiff’s expert designation deadline had not yet passed. (6-3: Maxwell concurred in part (as to medical causation SJ) and dissenting in part (as to service of process), joined by Kitchens and King, and joined in part by Beam)
Other Orders
SDBT Archives LLC v. Penn-Star Ins. Co., 2022-CT-00099-SCT (DIG-ed)
Boyington v. State, 2022-CT-00601-SCT (denying cert)
Walmart Stores East, LC v. Melton, 2022-IA-01028-SCT (dismissing interlocutory appeal)
Mathis v. The Mississippi Bar, 2023-BD-01255-SCT (granting leave to resign in good standing from the practice of law)
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)
I’m back. Again. I would like to think I will go back and summarize the last few weeks that I have missed but that is probably water under the bridge at this point.Pressing forward, the Mississippi Court of Appeals handed down seven opinions today. These decisions cover custody, felonies, personal injury, unemployment, and zoning. Notably, two criminal convictions were reversed.
Patrick v. Patrick, 2021-CA-00891-COA (Civil – Custody) Affirming the chancery court’s denial of the mother’s petition for contempt and modification and granting the father’s motion for modification, holding that the issue of custody was clearly before the chancellor who properly determined that there was a material change in circumstances that adversely affected the children, conducted a proper Albright analysis, and was within his discretion to order a change in legal and physical custody. (8-1-1: McCarty concurred in part and in the result and McDonald concurred in part and dissented in part. Neither wrote.)
Allen v. State, 2022-KA-00419-COA (Criminal – Felony) Reversing convictions six counts of statutory rape, holding that the jury was not properly instructed as to the State’s burden of proof and remanding for a new trial. (9-1-0: McDonald concurred in result only without writing.)
Practice Point: The erroneous instruction was submitted by the defense, but the Court noted that the “invited-error doctrine” did not apply where the jury was not properly instructed on the elements of the crime. Here is the Court’s summary of the issues with the jury instructions:
Fletcher v. State, 2022-KA-00868-COA (Criminal – Felony) Affirming conviction of capital murder and sentence as habitual offender, holding that the trial court did not err when it failed to suppress the defendant’s statement to law enforcement officials. (10-0)
The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (Civil – Other) Affirming the circuit court’s decision denying an ordinance variance to repair a wall/fence that enclosed the petitioner’s property, holding that the petitioner did not waive its challenge to the city’s code interpretation but that the circuit court’s interpretation of the code provisions at issue were not erroneous. (10-0)
Carter v. C&S Canopy, Inc., 2022-CA-00730-COA (Civil – Personal Injury) Affirming summary judgment in favor of a driver and his employer in an auto-negligence case, holding that there was no evidence to support the plaintiff’s claim that the driver negligently continued to drive a “sluggish” truck on the interstate, that the defendants were negligent in their efforts to get the truck towed, that the location of reflective triangles was the proximate cause of the crash, that the defendant could have safely moved the disabled truck anywhere other than where he did, that the driver should have registered as a for-hire carrier, or that the employer negligently failed to train the driver.
Appellate Math Warning: None of us signed up for this.
Marshall v. State, 2022-KA-00541-COA (Criminal – Felony) Reversing conviction of first-degree murder, holding that the circuit court erred in denying the defense’s peremptory strikes of three jurors, holding that the defense provided valid, race-neutral reasons for the strikes. (10-0)
Cain v. M.D.E.S., 2023-CC-00188-COA (Civil – State Boards & Agencies) Affirming denial of claim for unemployment benefits, holding that the circuit court properly dismissed the claimant’s appeal of denial as untimely. (10-0)
Other Orders
Walker v. State, 2022-KA-00482-COA (denying rehearing)
Gregory Meridian Acquisition, LLC v. McFarland, 2022-CA-00580-COA (denying rehearing)
The Mississippi Court of Appeals handed down four opinions today and three of them are at least a partial reversal. The lone affirmance was in an MTCA wrongful-death case stemming from a drowning. A PCR decision was affirmed in part and reversed in part, a post-divorce property division decision was reversed, and a police officer’s conviction of culpable-negligence manslaughter was reversed.
Malone v. State,2022-CA-00281-COA (Civil – PCR) Affirming in part and remanding in part the circuit court’s ruling in a PCR matter, holding that the circuit court did not err in rejecting the newly discovered evidence claim but holding that the circuit court erred by not addressing the ineffective assistance of counsel claim with specific findings or conclusions related to that claim. (9-1-0: Westbrooks concurred in result only without writing)
Stephens v. City of Gulfport, 2022-CA-01008-COA (Civil – Wrongful Death) Affirming summary judgment in favor of the city on an MTCA case stemming from a drowning, holding that Mississippi law does not “impose a duty on governmental entities to protect or warn against alleged dangerous conditions on property adjacent to property owned or operated by that governmental entity and not caused by the governmental entity” and that, in any event, the MTCA’s open and obvious defense applied to the river and barred the claim. (9-1-0: Westbrooks concurred in result only without separate written opinion)
Thompson v. Thompson, 2022-CA-01014-COA (Civil – Domestic Relations) Reversing the chancellor’s property division ruling, holding that the judgment was a final, appealable order and that the chancellor erred in failing to conduct a proper Ferguson analysis. (10-0)
Fox v. State, 2022-KA-00988-COA (Criminal – Felony) Reversing conviction of a police officer for culpable-negligence manslaughter against, holding that “[b]ased on the credible evidence presented at trial, no evidence establishes that Fox acted in a grossly negligent manner or that the victim’s death from minor abrasions was reasonably foreseeable under the circumstances,” that the verdict was against the overwhelming weight of the evidence (though this holding was relegated to a footnote) and holding that the circuit court abused its discretion by failing to give an accident or misfortune jury instruction. (5-1-4: Wilson concurred in part and in the result without writing; Emfinger dissented, joined by Westbrooks, McDonald, and McCarty)
The Mississippi Court of Appeals handed down eight opinions on Tuesday. The Court covered a lot of subject matter including trusts, unemployment benefits, workers’ comp, and several direct appeals of criminal convictions.
Rutland v. Regions Bank, 2022-CA-00720-COA (Civil – Wills, Trusts & Estates) Affirming the circuit court’s grant of summary judgment in favor of a trustee who filed a dec action seeking a judgment that the trust did not have to pay funeral expenses, holding that the circuit court did not err in finding that the trust was irrevocable, was not terminated by a subsequent divorce, and that the contents of the trust should be disbursed to the children. (10-0)
Black v. State, 2022-KA-01101-COA (Criminal – Felony) Affirming conviction of capital murder based on robbery, holding that the circuit court did not err in rejecting the defendant’s manslaughter instruction, in sustaining the State’s objection to defense counsel calling a detective a “liar” during closing, or in not issuing a cautionary instruction regarding the written transcript of the defendant’s interview with law enforcement. (8-1-1: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part without writing)
Coe Law Firm PLLC v. MDES, 2022-CC-01285-COA (Civil – State Boards & Agencies) Affirming the circuit court’s order dismissing the employer’s appeal of the MDES Board of Review’s order upholding the ALJ’s grant of unemployment benefits, holding that the employer failed to show good cause for not appearing at the ALJ de novo hearing and that issues of misconduct by the employee were therefore moot. (10-0)
Jones v. State, 2022-KA-01199-COA (Criminal – Felony) Affirming conviction of attempted aggravated assault with a firearm enhancement, holding that the verdict was not against the overwhelming weight of the evidence. (9-1-0: McCarty concurred in part and in the result without writing)
Simmons v. State, 2022-KA-01260-COA (Criminal – Felony) Affirming conviction of receiving stolen property and first-degree murder, holding that the circuit did not err in denying the defendant’s motion for JNOV where the evidence was sufficient for both conviction and that the verdict was not against the overwhelming weight of the evidence. (10-0)
MTD Products, Inc. v. Moore, 2023-WC-00199-COA (Civil – Workers’ Comp) Affirming the MWCC’s award of PPD for 50 weeks for an upper-left extremity injury, holding that substantial evidence support the MWCC’s finding that the claimant sustained a 25% industrial loss of use that exceeded her 15% functional medical impairment where the claimant’s job duties had to be modified and she was reassigned to different tasks after her injury. (10-0)
Vlasak v. State, 2022-CP-01211-COA (Criminal – Felony) Dismissing appeal of the circuit court’s denial of a motion for reconsideration after denying the defendant’s motion to modify sentence that was filed after a guilty plea that was filed after the term of court ended, holding that that the circuit court correctly found that this was essentially a direct appeal after a guilty plea. (10-0)
Gilmer v. State, 2022-KM-00257-COA (Criminal – Misdemeanor) Affirming the circuit court’s decision affirming the county court’s order dismissing an appeal of a conviction in justice court of willfully discharging a firearm towards a dwelling and disturbing the peace, holding that there was no error in dismissing the appeal after the defendant failed to appear at his trial de novo. (8-1-0: Wilson concurred in part and in the result without writing; Emfinger did not participate)
Other Orders
Smith v. State, 2020-KA-00774-COA (denying rehearing)
White v. State, 2021-KA-00818-COA (denying rehearing)
Hobby v. Ott, 2021-CA-01305-COA (denying rehearing)
Ndicu v. Gacheri, 2022-CA-00415-COA (denying rehearing)
Wheeler v. Miss. Limestone Corp., 2022-WC-00534-COA (denying rehearing)
The Mississippi Court of Appeals handed down eight decisions on Tuesday that cover a lot of territory. There is something for just about everybody.
Read on down for a case that underscores the importance of keeping up with the weekly hand downs from the Mississippi Supreme Court and Mississippi Court of Appeals. (Subscribing to this blog probably doesn’t hurt you in that endeavor.)
Coogan v. Nationwide Prop. and Cas. Ins. Co., 2022-CA-01063-COA (Civil – Insurance) Affirming partial summary judgment in policy holders’ suit against their auto liability carrier, holding that the carrier had an arguably reasonable basis to support its claims handling the circuit court did not err in finding that there was no genuine issue of material fact on the bad faith punitive damages claim or the Veasley damages claim. (6-2-1: McCarty concurred in part and in the result without writing, Westbrooks concurred in result only without writing, McDonald dissented without writing, Lawrence did not participate)
Forrest v. State, 2022-KA-00844-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence and that the court did not admit inadmissible hearsay or irrelevant evidence, and dismissing the ineffective assistance of counsel claim without prejudice. (10-0)
Hills v. Manns, 2022-CA-00774-COA (Civil – Domestic Relations) Affirming modification of visitation schedule, holding that the chancellor did not err in not dismissing the mother’s petition on the basis of res judicata, not awarding him attorney’s fees, or in awarding the mother final decision-making authority. (10-0)
Strong v. Acara Solutions, Inc., 2022-CA-01240-COA (Civil – Personal Injury) Reversing the trial court’s dismissal of a personal injury lawsuit on judicial estoppel grounds, holding that the case should be remanded to allow the circuit court to apply the test from a recent Mississippi Supreme Court decision that was handed down after the circuit court’s ruling. (10-0)
PRACTICE POINT – This case illustrates the importance of keeping up with decisions handed down weekly by Mississippi’s appellate courts. (By extension, this case illustrates why you and all of your friends should subscribe to the Mississippi Appeals Blog – I covered the Saunders decision here when it was handed down.)
PRACTICE POINT (continued): Though the Mississippi Supreme Court’s decision in Saunders was handed down after the summary judgment order was entered, the Supreme Court’s decision in Jones, infra, with its special concurrence, was handed down before the summary judgment proceedings. So the precedential special concurrence in Jones that controlled this case was in force during the summary judgment proceedings. This case serves as a good reminder that special concurrences that garner a majority of the court have the force of precedent. (Another shameless plug: I covered the Jones decision here when it was handed down and specifically discussed the precedential value of the special concurrence.)
Barefield v. Barefield, 2022-CA-00834-COA (Civil – Torts-Other) Affirming the chancellor’s order requiring the former member/owner of an investment company to pay a forensic accountant’s fee for services during litigation among all members/owners, holding that the exert was court-appointed and the chancellor had discretion to order the party whose actions necessitated the lawsuit to pay the fees. (8-2-0: McCarty concurred in part and in result without writing; Wilson concurred in result only without writing)
Henderson v. State, 2022-KA-00661-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the evidence was sufficient to support the conviction and the verdict was not against the overwhelming weight of the evidence. (10-0)
Nichols v. State, 2022-KA-00202-COA (Criminal – Felony) Reversing conviction of first-degree murder and remanding for new trial, holding that the circuit court erred by failing to instruct the jury on the “castle doctrine,” while also holding that the evidence to support the conviction was legally sufficient so the remedy was a new trial. (10-0)
Miss. Dept. of Human Servs. v. Johnson, 2022-SA-00605-COA (Civil – Domestic Relations) Affirming the chancellor’s decision voiding a 2002 paternity and child-support order was void for insufficient service of process, holding that in light of MDHS’s admission that failed to effect proper service under Rule 81(d) MDHS’s arguments under the doctrine of laches, judicial estoppel, unjust enrichment, and public policy failed. (6-4: Greenlee dissented, joined by Wilson, Lawrence, and Emfinger)
Other Orders
Gillen v. Gillen, 2021-CA-00837-COA (granting motion for appellate attorneys’ fees)
Moore v. State, 2022-KA-00327-COA (granting appearance as counsel, but denying motion to substitute and motion to file supplemental brief)
Diming v. State, 2022-KA-00412-COA (recalling mandate and granting motion for time to file motion for rehearing)
Russell v. State, 2022-KA-00447-COA (recalling mandate and granting motion for time to file motion for rehearing)
Greater Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (denying rehearing)
Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (denying motion for reconsideration)
Mitchell v. State, 2023-TS-00764-COA (granting motion to proceed out-of-time)
Robinson v. State, 2023-TS-00935-COA (dismissing untimely appeal)
Britton v. State, 2023-TS-01060-COA (dismissing untimely appeal)
Rutherford v. State, 2023-TS-01066-COA (dismissing appeal for lack of appealable judgment)
Rutherford v. State, 2023-TS-01069-COA (dismissing appeal for lack of appealable judgment)
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)
Mississippi Appeals Blog 