Tag: Summary Judgment

Mississippi Court of Appeals Decisions of December 12, 2023

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)

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Mississippi Court of Appeals Decisions of November 28, 2023

The Mississippi Court of Appeals handed down five opinions today. There are two domestic cases (custody and divorce), an appeal of summary judgment, a real property/arbitration case, and a PCR case.

Scott v. Boudreau, 2022-CA-00961-COA (Civil – Custody)
Affirming judgment modifying custody and awarding the father custody, holding that the chancery court did not abuse its discretion in analyzing the Albright factors and awarding custody to the father which required relocating the children.
(8-1-1: Wilson concurred in part and in the result without writing, McDonald concurred in part and dissented in part without writing)

Malone v. State, 2022-CP-00958-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the petitioner entered his guilty plea voluntarily and the circuit court did not err on the issue of competency where the circuit court made an on-the-record determination of competency and that the petitioner’s attorney’s performance was not deficient.
(7-3-0: Wilson, Westbrooks, and McCarty concurred in part and in the result without writing)

MDL Community Development, LLC v. Dillon, 2022-CA-00802-COA (Civil – Real Property)
Affirming the chancellor’s decision withdrawing an order and reiterating a prior order compelling arbitration, holding that the chancellor had subject matter jurisdiction over the land-contract dispute and retaind jurisdiction to enforce an arbitration decision, if any.
(10-0)

Cannon v. Cannon, 2022-CA-00410-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s grant of divorce and related matters, holding the chancellor did not err in granting divorce on the ground of cruel and inhuman treatment or in finding that the proceeds from the sale of the ex-wife’s separate home were converted to marital property, but holding that the chancellor erred in determining that the ex-husband’s real estate business was separate non-martial property.
(9-1-0: Emfinger concurred in part and in the result without writing)

Jarrell v. Coastal Ear, Nose & Throat, Head and Neck Surgery Association, PLLC, 2022-CA-00910-COA (Civil – Other)
Affirming the trial court’s grant of summary judgment dismissing a former employee’s wrongful discharge claim, holding that the circuit court did not err in striking parts of the plaintiff’s affidavit that contained hearsay, lacked foundation, and were speculative statements, and that the plaintiff did not establish that the whistleblower exception to at-will employment could apply here.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

Other Orders

Rawlings v. Rawlings, 2022-CA-00919-COA (denying motion for appellate attorney’s fees)

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Mississippi Court of Appeals Decisions of November 21, 2023

The Mississippi Court of Appeals handed down eight opinions on Tuesday. There are some interesting opinions in there including three opinions with civil procedure issues that civil litigators should take a look at. One deals with the discovery rule and the savings statute after a voluntary dismissal, another deals with a Rule 41 dismissal for want of prosecution, and the other deals with a Rule 56(f) motion in a med mal case.

The Supreme Court will not hand down decisions this week due to the Thanksgiving holiday. Have a Happy Thanksgiving!

Burns v. BancorpSouth Bank, 2022-CA-00404-COA (Civil – Contract)
Affirming dismissal of breach of contract and negligence claims that two banks were liable for not preventing an elderly lady’s caregiver from stealing money from bank accounts, holding that the claims against the banks were barred by the three-year statute of limitations.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Greenlee did not participate)

Harper v. State, 2022-KA-00659-COA (Criminal – Felony)
Affirming conviction of attempted statutory rape and fondling, holding that the trial court did not err by admitting the victim’s out-of-court statements without determining whether the tender-years exception applied because the victim’s teacher’s testimony about what the victim said was not offered to prove the truth of the matter asserted and that the forensic interviewing expert’s testimony did not constitute hearsay, and dismissing the ineffective assistance of counsel claims without prejudice.
(8-2-0: Enfinger concurred in part and in the result without writing and McDonald concurred in the result only without writing)

Agee v. State, 2022-KA-00994-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the Court did not err by imposing restitution and that the defendant waived that issue by not objecting during sentencing.
(9-1-0: Westbrooks concurred in the result only without writing)

Clearman v. Pipestone Property Services, LLC, 2022-CA-00651-COA (Civil – Personal injury)
Affirming the circuit court’s dismissal of slip-and-fall claims against a contractor and subcontractor who provided snow and ice removal services for a grocery store on statute of limitations grounds, holding that the “discovery rule” did not apply, the voluntary dismissal of a timely federal court lawsuit against the grocery store did not bring the claims against the contractor and subcontractor within the ambit of the “savings statute,” and the doctrine of equitable tolling did not apply.
(10-0)

Galvan v. State, 2022-KA-00655-COA (Criminal – Felony)
Affirming conviction of statutory rape, sexual battery, gratification of lust, and incest, holding that the trial court did not err by not appointing an interpreter or by admitting the defendant’s statements to law enforcement, that the defendant waived objections based on the Confrontation Clause, that there was sufficient evidence to support the incest conviction, and that the defendant failed to prove ineffective assistance of counsel.
(9-1-0: Carlton concurred in result only without writing)

Rawlings v. Rawlings, 2022-CA-00919-COA (Civil – Domestic Relations)
Affirming the chancellor’s denial of the ex-wife’s request for attorney’s fees after denying the ex-husband’s request for alimony modification, holding that she was not entitled to attorney’s fees under the marital dissolution agreement providing that the prevailing party in an enforcement action was entitled to attorney’s fees because this was an action to “modify” the agreement not “enforce” it.
(10-0)

Scott v. UnitedHealthcare of Mississippi, Inc., 2022-CA-00963-COA (Civil – Insurance)
Affirming dismissal for want of prosecution where an 18-month period of inactivity followed the filing of the compliant, interrupted only by some activity prompted by the circuit clerk’s notice of intent to dismiss under Rule 41, that then followed by another 18-month period of inactivity and a second Rule 41 notice, holding that the trial court did not abuse its discretion in dismissing the case even though the plaintiff filed a “Motion to Leave Case on the Docket” after the second Rule 41 notice and that the Court otherwise had inherent power to dismiss for want of prosecution.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

NOTE – The Court was not persuaded by the plaintiff’s efforts to assign blame to the COVID pandemic. The plaintiff argued:

The Court addressed this argument later in the opinion:

Hogan v. Hattiesburg Clinic, P.A., 2022-CA-00650-COA (Civil – Medical Malpractice)
Affirming the circuit court’s denial of the plaintiffs’ 56(f) motion filed the day before the motion for summary judgment hearing, holding that the plaintiffs’ 56(f) motion did not mention the need to obtain additional expert medical opinions and the plaintiffs had not otherwise shown that additional expert opinion could establish proximate cause.
(8-1-0: McCarty concurred in part and in the result without separate written opinion; Carlton did not participate.)

Other Orders

Love v. State, 2021-CP-01101-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of November 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. They cover custody, personal injury, felonies, and PCR. One of the personal injury cases stems from an injury sustained during a “TikTok challenge” in a classroom.

Croom v. State, 2022-KA-00598-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling and conspiracy to commit burglary of a dwelling, holding that the trial court did not err by refusing to instruct the jury on the lesser-included offense of trespass and that the evidence was sufficient to support the conviction of conspiracy.
(9-1-0: Westbrooks concurred in result only without separate written opinion)

Snyder v. Estate of Cockrell, 2022-CA-00597-COA (Civil – Torts)
Affirming summary judgment in a negligence case a man filed against his grandfather’s estate after a child caused the grandfather’s golf cart to run into the plaintiff, holding that in the plaintiff could not prove a breach of duty where there was only speculation about the grandfather’s conduct after he finished operating the golf cart.
(8-2-0: McDonald concurred in part and in result without written opinion; Westbrooks concurred in result only with separate written opinion)

Johnson v. State, 2022-CP-01186-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the petitioner failed to present evidence other than his bare assertions that his plea was involuntary and that the trial court did not abuse its discretion in not granting the petitioner an evidentiary hearing.
(10-0)

Scott v. Le, 2022-CA-00887-COA (Civil – Custody)
Affirming the chancellor’s custody award, holding that the chancellor’s finding that there was a material change in circumstances and the chancellor’s application of the Albright factors to to deny the mother’s request for sole physical custody and grant the father’s request for sole physical custody was supported by substantial evidence.
(10-0)

Taylor v. State, 2022-KA-01042-COA (Criminal – Felony)
Affirming conviction of attempted murder and two counts of possession of a controlled substance, holding that evidence of prior arrests did not constitute evidence of prior bad acts under Rule 404(a) because it was offered as the foundation of a witness’s identification of the defendant and that would have been otherwise admissible under the exception in 404(b), that it passed the 403 balancing and, even if it was not admissible, it would have been harmless error.
(9-1-0: Westbrooks concurred in part and in the result without writing)

Brown v. State, 2022-KA-00446-COA (Criminal – Felony)
Affirming conviction of first-degree murder and shooting into a vehicle, holding that the evidence was sufficient to support the convictions, that the defendant waived the issue of the judge’s refusal of a second-degree murder instruction when trial counsel did not object and agreed with the judge’s decision, and there was no merit to the claim that a clinical and forensic psychological expert was pressured into proceeding with an independent psychological examination without all of the records he had requested.
(10-0)

Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the school district in a negligent supervision after a student was injured in a class room after falling victim to a “TikTok challenge,” holding that that the injury was not reasonable foreseeable and there was no genuine issue of material fact that would warrant reversal of the summary judgment.
(6-2-2: Westbrooks and McDonald concurred in part and in the result without written opinion; McCarty dissented, joined by Carlton, and joined in part by Westbrooks and McDonald)

Other Orders

Smith v. State, 2026-KA-01946-COA (denying pro se motion to recall mandate and allow untimely motion for rehearing)

Hall v. State, 2022-CP-01097-COA (recalling mandate and allowing appellant’s timely pro se motion for rehearing to proceed on the merits)

McGee v. State, 2023-KA-00083-COA (remanding to the circuit court for forty-five days for a hearing consistent with Mississippi Rule of Appellate Procedure 6(c)(2) and an order)

Patton v. State, 2023-TS-00618-COA (allowing timely appeal to proceed on the Court’s own motion)

Crump v. State, 2023-TS-00795-COA (allowing timely appeal to proceed on the Court’s own motion)

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Mississippi Court of Appeals Decisions of September 19, 2023

The Mississippi Court of Appeals handed down four opinions today. There are two direct criminal appeals (including a reversal on sufficiency-of-the-evidence grounds), an appeal of summary judgment in an MTCA negligence claim, and claim by a constable for wrongful removal.

Love v. State, 2021-KA-01014-COA (Criminal – Felony)
Affirming in part and reversing in part after the defendant was convicted of capital murder, aggravated assault, and armed robbery x3, holding that the trial court did not err in denying motion to sever, in denying motion for mistrial after brief exposure of wrist restraints to the jury venire, or in refusing a Milano instruction; that the indictment for capital murder was legally sufficient and the jury instruction on that count not erroneous; and that the defendant was not placed in double jeopardy, but that the evidence was not legally sufficient to support the armed robbery conviction.
(10-0)

J&A Excavation, Inc. v. City of Ellisville, 2022-CA-00533-COA (Civil – Other) consolidated with J&A Excavation, Inc. v. Jones County, 2022-CA-00547-COA (Civil – Other)
Reversing the circuit court’s decision that affirmed the Board of Aldermen and Board of Supervisors, holding that the decisions were not supported by substantial evidence and were arbitrary and capricious where the plaintiff’s low bid on a public construction contract was rejected and the next-lowest bid was accepted with no record evidence regarding qualifications, reputation, or capabilities of the bidder selected.
(10-0)

Bailey v. Jefferson County Board of Supervisors, 2022-CP-00950-COA (Civil – Other)
Reversing the circuit court’s decision affirming the Board of Supervisors’ decision to removal a constable, holding that there was not substantial evidence to support the removal, rendering judgment in favor of the constable, and remanding for a determination of damages.
(8-1: Emfinger dissented without separate written opinion.)

Moore v. Jackson Public School System, 2022-CA-00595-COA (Civil – Personal Injury)
Reversing summary judgment dismissing a negligence claim under the MTCA, holding that the circuit court erred by granting summary judgment on other grounds where the actual motion was based only on “broad legal arguments” that did not challenge the sufficiency of the plaintiff’s evidence.
(6-3: Carlton dissented, joined by Greenlee, Westbrooks, and McDonald)

Others Orders

Carroll v. State, 2021-CP-00959-COA (denying rehearing)

Ehrhardt v. State, 2021-KA-01143-COA (denying rehearing)

Jordan v. State, 2021-KA-01421-COA (denying rehearing)

In the Matter of the Estate of Roosa v. Roosa, 2022-CA-00128-COA (denying rehearing)

Rhodes v. RL Stratton Properties LLC, 2022-CA-00338-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 31, 2023.

The Mississippi Supreme Court handed down two opinions today: one civil and one direct criminal appeal. The civil case addressed whether summary judgment based on 30(b)(6) testimony in a negligence case was proper. The direct criminal appeal challenged a capital murder conviction on several grounds.

Mississippi State Agencies Self-Insured Workers’ Compensation Trust v. Herrgott, 2021-SA-01280-SCT (Civil – Real Property)
Reversing summary judgment in a subrogation action filed by a workers’ compensation trust against an alleged tortfeasor stemming from an ATV accident in which a state employee sustained an injury that compensable under the MWCA, holding that the trust was not bound by the failure of its 30(b)(6) representative to articulate a legal theory at his deposition.
(9-0)

PRACTICE POINT – The Supreme Court favorably quoted a prior MS Court of Appeals decision and two decisions from federal district courts in its reasoning. The quoted language could benefit both sides of the civil bar in a few different contexts that come immediately to mind:

Dukes v. State, 2022-KA-00670-SCT (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err by allowing testimony of a rebuttal witness that had not bee disclosed, or in denying a motion for mistrial based on argument that the State violated a motion in limine precluding testimony related to severed counts in the indictment, and the that trial was not rendered unfair by hearsay testimony.
(9-0)

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing/reappointing the following six persons to three-year terms as members of the complaint tribunals effective September 1, 2023: George Philip Schrader IV, Hon. Carol White-Richard, Hon. Jennifer F. Nicaud, Hon. Claiborne (Buddy) McDonald IV, J. Rhea Tannehill, Jr., and Leo J. Carmody)

Neal v. State, 2011-M-00201 (granting letter motion and remanding for resentencing)

Thomas v. State, 2021-CT-00060-SCT (denying cert)

Mitchell v. State, 2021-KA-00589 (denying rehearing)

Lamy v. Lamy, 2021-CT-00770-SCT (granting cert)

Pace v. State, 2022-CT-00046-SCT (denying cert)

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Mississippi Court of Appeals Decisions of August 29, 2023

The Mississippi Court of Appeals handed down six opinions today. Today was heavy on direct criminal appeals, with one reversal in part. There was also an appeal of summary judgment in a slip-and-fall case and a PCR case.

Gilbert v. State, 2021-KA-01265-COA (Criminal – Felony)
Affirming conviction of leaving the scene of an accident causing significant bodily injury, aggravated DUI, and DUI-related death of an unborn child, holding that the claim of ineffective assistance of counsel was without merit and that the prosecution did not improperly draw attention to the defendant’s exercise of his right to remain silent during closing arguments.
(10-0)

Landry v. Vallman McComb Mall, LLC, 2022-CA-00439-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a fast food restaurant in a slip-and-fall case, holding that mopping and cleaning floors in a restaurant was a reasonable endeavor and was conducted in a reasonable manner, and that the an employee provided multiple warnings.
(9-1-0: McCarty concurred in part and in the result sub silentio.)

Lee v. State, 2022-KA-00078-COA (Criminal – Felony)
Affirming in part and reversing in part after the defendant was convicted of first degree murder, two counts of felon in possession of firearm, and tampering with physical evidence, holding (1) that the two counts of felon in possession should be merged into a single count and remanding for sentencing, (2) that excluding language from the tampering instruction that removed the element requiring intent was plain error, and (3) that retroactive misjoinder was inapplicable.
(9-1-0: Barnes concurred in part and in the result sub silentio.)

NOTE – Here is the jury instruction at issue:

Washington v. State, 2021-KA-01384-COA (Criminal – Felony)
Affirming convictions of first-degree murder and two counts of aggravated assault, holding that the trial court’s ruling on the defendant’s Batson challenges were not clearly erroneous or against the overwhelming weight of the evidence.
(8-1*-0: Westbrooks wrote a special concurrence, joined by McDonald and joined in part by McCarty; Smith did not participate. *McDonald and McCarty joined the majority opinion and the special concurrence.)

Ellison v. State, 2022-KA-00462-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the verdict was not against the overwhelming evidence and that the trial court did not err by not removing a sleeping juror where the issue was not raised by trial counsel, and dismissing the ineffective assistance claim without prejudice.
(9-0: Smith did not participate.)

Hall v. State, 2022-CP-01097-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the motions were filed outside of the three-year statute of limitations and the petitioner did not prove that a statutory exception applied.
(7-3*-0: Westbrooks wrote a special concurrence joined by McDonald, and joined in party by Barnes and McCarty; Barnes and McDonald concurred in part and in the result sub silentio. *McCarty authored the majority opinion and joined the special concurrence.)

Other Orders

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (denying rehearing)

Williamson v. State, 2021-KA-00830-COA (denying rehearing)

Durr v. State, 2021-KA-01109-COA (denying rehearing)

Herbert v. Herbert, 2021-CA-01291-COA (denying rehearing)

Beckworth v. Beckworth, 2022-CA-00048-COA (denying rehearing)

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Mississippi Supreme Court Decisions of August 17, 2023

The Mississippi Supreme Court handed down four opinions today. One is a direct criminal appeal and one was a real property case addressing the applicability of restrictive covenants after a foreclosure sale. Then there are two decisions on interlocutory appeals of summary judgment denials – a med mal/MTCA pre-suit notice case against a hospital and a construction zone MVA case against the road contractor and MDOT.

Stuart v. State, 2022-KA-00585-SCT (Criminal – Felony)
Affirming conviction of filming a person without her knowledge and with an expectation of privacy, holding that the defendant’s right to counsel was not violated when he had been through three public defenders and his request that a fourth lawyer be appointed his counsel days before trial and for continuance was denied where the fourth lawyer was appointed to serve as advisory counsel, and that the trial court did not err in denying the defendant’s accident instruction.
(9-0)

UMMC v. Aycock, 2022-IA-00030-SCT (Civil – Med Mal)
Affirming on interlocutory appeal the denial of the hospital’s motion for summary judgment arguing that the plaintiff did not serve proper pre-suit notice on the CEO, holding that the notice requirements are mandatory–but not jurisdictional–but that there was an issue of material fact as to whether the hospital waived, or is equitably estopped from asserting, lack of compliance based on its conduct after actually receiving notice though not through its CEO.
(8-1: Griffis concurred in part and dissented in part)

NOTE – Here is the Court’s summary of some of the facts relevant to waiver and equitable estoppel:

Loblolly Properties LLC v. Le Papillion Homeowner’s Ass’n, Inc., 2021-CT-00767-SCT (Civil – Real Property)
Affirming the chancery court and court of appeals in an action to collect HOA fees, holding that the developer who purchased properties through a nonjudicial foreclosure sale owed HOA fees where it purchased the properties with notice of the restrictive covenants and holding, specifically, that the foreclosure sale did not extinguish the HOA covenants.
(7-2: Coleman dissented, joined by Griffis)

Joe McGee Construction Company, Inc. v. Brown-Bowens, 2021-IA-01405-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of summary judgment to a road construction contractor and to MDOT, holding that there was no competent summary judgment evidence to support that any breach of duty by the contractor or by MDOT proximately caused the crash where the contractor had installed all warning signs required by MDOT and where the decedent passed multiple signs warning of a road closure and crashed into a crane on a closed portion of the highway.
(7-2: Kitchens dissented, joined by King)

DISCLOSURE – I represented the road contractor appellant in this case.

PRACTICE POINT – I think this is a useful, pithy statement to support motions for summary judgment when the arguments on causation are speculative:

Other Orders

In Re: Local Rules, 89-R-99015-SCT (approving amendment to local rule filed by Judge Irving in the 22nd Circuit Court District)

Rhea v. Career General Agency, Inc., 2021-CT-00580-SCT (granting cert)

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CT-00605-SCT (denying cert)

The Board of Supervisors for Lowndes County, Mississippi v. Lowndes County School Dist., 2021-CA-00999-SCT (denying rehearing)

Wagner v. Andreacchio, 2021-IA-01199-SCT (denying rehearing)

Bradley v. State, 2022-CT-00173-SCT (denying cert)

MS Concrete v. Harris, 2022-CT-01095-SCT (denying cert)

Howell v. State, 2023-DR-00455-SCT (remanding motion for appointment of counsel for representation of indigent capital petitioner)

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Mississippi Court of Appeals Decisions of August 8, 2023

The Mississippi Court of Appeals handed down ten opinions today. There are a bunch of domestic relations cases, several direct criminal appeals (with some jury instruction issues), a workers’ comp decision addressing the compensability of a COVID diagnosis, and a real property case. I learned about the “fugitive dismissal rule” today and you can too.

Covin v. Covin, 2022-CA-00019-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision finding both parties to a divorce in contempt and denying both parties’ request for attorney’s fees, holding that the chancellor did not err in making a sua sponte clarification of final judgment of divorce, in finding one side in contempt for failing to refinance the marital home and remit the other side’s equitable interest within the court-ordered timeline and for not allowing the other side to retrieve personal property, or in not awarding attorney’s fees despite contempt findings.
(9-1-0: Lawrence concurred in part and in the result sub silentio.)

Carpenter v. State, 2022-KA-00398-COA (Criminal – Felony)
Affirming conviction or attempted murder and possession of a firearm by a felon, holding that it was not plain error to not instruct the jury on the elements of murder and that the instruction give adequately described the crime of attempted murder.
(7-3-0: Wilson and McDonald concurred in part and in the result sub silentio; Westbrooks concurred in the result only sub silentio.)

NOTE – Here are the instructions at issue. S-1 read:

And S-2 read:

White v. State, 2021-KA-00818-COA (Criminal – Felony)
Affirming convictions of jointly-tried defendants for drive-by shooting and shooting into a swelling, holding that the convictions were supported by sufficient evidence and that the verdicts were not against the overwhelming weight of the evidence.
(10-0)

Davis v. State, 2022-KA-00573-COA (Criminal – Felony)
Affirming conviction for armed robbery with sentence enhancement based on the victim’s age, holding that the trial court did not abuse its discretion in denying a motion for new trial based on weight of the evidence arguments or in refusing to give a lesser-included-offense instruction for simple assault.
(10-0)

Gardner v. State, 2021-KA-00886-COA (Criminal – Felony)
Affirming convictions of first-degree murder and attempted murder, holding that the trial court did not err by not striking a jail minister for cause or by finding a child competent to testify, that the issue of limitations put on on cross-examination were waived for failure to object, and that there was no plain error in accepting the State’s jury instruction that did not contain the word “deliberate.”
(6-4-0: Wilson and Emfinger concurred in part and in the result sub silentio; Greenlee and Lawrence concurred in result only sub silentio.)

NOTE – Here is the jury instruction at issue:

Davidson v. Davidson, 2022-CA-00372-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s decision related to property and debt division in a divorce proceeding, holding that the chancellor did not err in classification of marital assets or award of equity in the marital home but the order dividing the debt incurred on a credit card was not sufficiently clear regarding the amount to divide and remanding for a proper finding as to the amount.
(9-1-0: Greenlee concurred in result only sub silentio.)

Jones v. State, 2021-KA-01375-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the verdict was not contrary to the overwhelming weight of the evidence and that the trial court did not err in refusing a jury instruction on the excuse of accident where the defendant never stated he accidentally fired the gun.
(9-1-0: Westbrooks concurred in part and in the result sub silentio.)

West v. The Nichols Center, 2021-WC-01403-COA (Civil – Workers’ Comp)
Affirming the Commission’s finding that a nurse’s COVID diagnosis and resulting blood clot after treating COVID-positive patients was not compensable, holding that there was no lay or medical proof that the claimant contracted COVID at work.
(10-0)

PRACTICE POINT – For those of us who handle workers’ comp claims, this was an interesting footnote regarding the necessity of medical proof. I was anticipating a discussion of whether COVID falls under the statutory definition of an “accidental injury” or an “occupational disease” but this footnote explains why we didn’t get it.

Gillen v. Gillen, 2021-CA-00837-COA (Civil – Domestic Relations)
Dismissing appeal of a contempt order in a divorce proceeding, holding that the party in contempt under the “fugitive dismissal rule” because he had absented himself from the chancery court’s jurisdiction to avoid incarceration for contempt.
(10-0)

PRACTICE POINT – Be sure to add the “fugitive dismissal rule” to your arsenal:

Tubwell v. FV-1, 2021-CP-01345-COA (Civil – Real Property)
Affirming the circuit court’s decision dispossessing the defendant of land he refused to vacate after the property was foreclosed on, holding that the circuit court had jurisdiction, that the circuit court did not err in denying the defendant’s motion to dismiss based on the statute of limitations and adverse possession, that the plaintiff was entitled to summary judgment on the issue of the defendant’s failure to vacate the property, and that the circuit court did not err in dismissing the counterclaim without prejudice.
(3-2-5: McCarty concurred in part/in result sub silentio; Carlton concurred in result only sub silentio; Barnes, Westbrooks, McDonald, and Emfinger concurred in part/dissented in part sub silentio; Wilson concurred in part and dissented in part, joined by Barnes, and Emfinger, and joined in part by Westbrooks, McDonald, and McCarty.)

Other Orders

Lofton v. Lofton, 2021-CT-00035-COA (granting motion for supplemental attorney’s fees)

Brown v. Brown, 2021-CA-00728-COA (dismissing pro se motions for lack of jurisdiction)

Nunn v. State, 2021-KA-01371-COA (denying rehearing)

Brown v. State, 2022-CP-00069-COA (recalling mandate and granting additional rehearing time)

Hamilton v. State, 2022-CP-00069-COA (granting pro se motion for extension of time to file motion for rehearing)

Parker v. MDH, 2022-WC-00552-COA (denying rehearing)

Wells v. State, 2022-KA-00707-COA (granting motion to recall mandate and reinstate appeal)

Fox v. State, 2022-KA-00988-COA (granting motion for leave to file amicus brief)

Pryer v. State, 2023-TS-00568-COA (denying motion for reconsideration)

Hand Down List

Mississippi Court of Appeals Decisions of July 25, 2023

The Mississippi Court of Appeals handed down five opinions today covering diverse subject matter. There is a zoning exception case, a custody case, a personal injury case considering a grant of summary judgment in a slip-and-fall case, a marital property division case analyzing whether a PSA was ambiguous, and a PCR case with a concurrence discussing Howell/Rowland I/Rowland II.

Keenum v. City of Moss Point, 2021-CA-01044-COA (Civil – Other/Zoning)
Reversing the circuit court’s decision that affirmed the mayor’s decision to approve a special exception to a zoning ordinance, holding that the decision to allow a for-profit development in a residential-zoned area under an exception for “semi-public recreational area” (which was not defined in the ordinance) was reversible error because that reading would render the prohibition against “commercial use” in the ordinance meaningless.
(8-1-0: McDonald concurred in part and in the result without separate written opinion; Lawrence did not participate.)

D.W.K. v. Youth Court of Lincoln County, 2019-CP-00451-COA; 2020-CP-01307-COA (Civil – Custody)
Affirming the youth court’s denial of motions to consider new evidence two years after adjudication of abuse and neglect and placement of five minor children with their maternal aunt, holding that the youth court had jurisdiction; service of process was proper; that the youth court’s decision was not manifestly wrong or erroneous, was based on substantial evidence, and favored the best interest of the children; and that the record on appeal was sufficient.
(10-0)

Babin v. Wendelta, Inc., 2022-CA-00341-COA (Civil – Personal Injury)
Reversing the circuit court’s grant of summary judgment for a fast food restaurant in a slip-and-fall case, holding that “the record contained ample proof” of a dangerous condition where multiple witnesses including restaurant employees testified that the mat was slippery on the date of the fall and that the vestibule where the mat was located held condensation.
(9-1-0: Lawrence concurred in result only WOSWO.)

Practice Point – I have noticed ANSI standards appearing more frequently in my practice. I suspect these two sentences will make their way into more than one brief:

Blanchard v. Blanchard, 2022-CA-00356-COA (Civil – Domestic Relations)
Reversing the chancery court’s ruling based on parol evidence after finding that a Property Settlement Agreement was ambiguous, holding that the PSA was unambiguous and that it entitled the ex-husband to half of the net proceeds of the sale of the former marital home even though the ex-wife had refinanced the home.
(10-0)

Roberson v. State, 2021-CA-01182-COA (Civil – PCR)
Affirming order granting in part and denying in part a PCR motion, holding that the petitioner was not entitled to an exception from the statutory bars and that, in any event, there was no merit to his claim that his plea was involuntary or that his counsel was ineffective.
(6-4-0: Westbrooks, McDonald, and McCarty concurred in part and in the result WOSWO; Wilson concurred in part and in the result, joined by McDonald and McCarty and joined in part by Westbrooks.)

Note – Judge Wilson’s concurrence discussed the state of the “fundamental-rights exception” in light of the Mississippi Supreme Court in Howell overruling Rowland I and Rowland II, and noted that the Supreme Court had not squarely addressed whether the successive motions bar is substantive or procedural:

Other Orders

Buchanan v. State, 2021-CP-01069-COA (denying rehearing)

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