Tag: Summary Judgment

Mississippi Court of Appeals Decisions of May 23, 2023

The Mississippi Court of Appeals handed down five opinions today in five different areas of law: custody, PCR, wills and estates, criminal, and personal injury.

Culver v. Culver, 2021-CA-01108-COA (Civil – Custody)
Affirming the chancellor’s ruling changing physical custody from the mother to the father, holding that the chancellor did not err in finding an impending move out-of-state would constitute a material change in circumstances that would adversely impact the children’s welfare and that the chancellor’s analysis of the Albright factors was not manifestly wrong.
(6-3-0: Wilson, Westbrooks, and McDonald concurred in result only without separate written opinion; Lawrence did not participate.)

Brown v. State, 2022-CP-00069-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the ineffective assistance of counsel claims were untimely, barred as successive, and precluded by res judicata; the circuit court was not required to grant the plaintiff’s MSJ or find the State in contempt for not responding to it; and the circuit court was not obligated to conduct an evidentiary hearing.
(10-0)

Roosa v. Roosa, 2022-CA-00128-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s estate orders in a 15-year-long legal saga over the estate of an astronaut, holding that the challenging beneficiary (1) waived the argument that the executor did not have authority to donate property to a foundation and (2) did not secure a ruling from the chancellor on the issue of whether the donation met the requirements of a valid inter vivos gift.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Practice Point – This decisions is a good reminder that you have to get a ruling from the trial court on an issue before you can appeal the issue:

Trest v. State, 2021-KA-00968-COA (Criminal – Felony)
Affirming conviction of molestation, holding that the circuit court did not abuse its discretion by admitting evidence of prior bad acts (of molestation) or denying a mistrial when the witness to the prior molestation said that the defendant had molested “us” or by admitting evidence under the tender-years exception, and that the evidence was sufficient to support the conviction.
(8-1-0: Westbrooks concurred in part and in the result without separate written opinion.)

Rhodes v. RL Stratton Properties LLC, 2022-CA-00338-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a building owner in a suit filed by a roofer who fell through a framed opening in the attic floor while looking for the source of water leaks, holding that the failure to warn an experienced roofer claim failed as a matter of law and that the fall through the opening was “intimately connected” to the work the plaintiff was hired to do.
(10-0)

Other Orders

Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (denying rehearing)

Colenberg v. State, 2021-CA-00673-COA (denying rehearing)

Smith v. Minier, 2021-CA_01284-COA (denying rehearing)

Mallard v. State, 2022-CA-00152-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of April 27, 2023

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

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

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

Other Order

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

Hand Down Page

Mississippi Court of Appeals Decisions of April 25, 2023

The Court of Appeals handed down nine opinions today and there is something for just about every practice area. There are two appellate jurisdiction cases, a will contest, a breach of contract case, two direct criminal appeals, a divorce/marital estate division case, a breach of termite contract case, an intra-church lawsuit, and an intentional tort/attorney’s fees case.

Herning v. Lakeview S/C Partners, Ltd., 2021-CA-01427-COA (Civil – Other)
Affirming the circuit court’s dismissal of the defendant’s appeal from summary judgment for the plaintiff entered by the county court, holding that the defendant failed to pay the cost bond for his appeal within the thirty-day time limit so the circuit court lacked jurisdiction.
(8-2: McDonald concurred in part and dissented in part without separate written opinion; Lawrence dissented without separate written opinion.)

Pearson v. Eubanks, 2022-CA-00011-COA (Civil – Wills, Trusts & Estates)
Reversing the chancery court’s dismissal of a will contest, holding that the plaintiffs’ well-pleaded allegations when the filed the will contest provided them stating to contest the will on undue influence grounds.
(10-0)

Lewis v. State, 2021-KA-00472-COA (Criminal – Felony)
Affirming conviction of first and second degree murder, holding:
1. No error in transferring venue that the defendant requested.
2. No error in denying Castle Doctrine and stand-your-ground jury instructions.
3. The doctrine of retroactive misjoinder did not apply.
4. Limiting the defense’s cross-examination of a witness about his pending indictment was harmless error.
5. The objection to the investigator’s testimony about exit wounds was waived.
6. No speedy trial violation (issue raised pro se)
7. No error in denying the motion to quash and dismiss the indictment (issue raised pro se)
8. The State did not commit prosecutorial misconduct (issue raised pro se)
9. No error in allowing the jury to review transcript of the defendant’s recorded statement (issue raised pro se)
10. Evidence was sufficient and the verdict was not against the overwhelming weight of it (issue raised pro se)
(7-3-0: Barnes and Lawrence concurred in part and in the result without separate written opinion; Smith concurred in part and in the result, joined by Barnes and Lawrence.)

Kloss v. Bay Pest Control, Inc., 2021-CA-01117-COA (Civil – Contract)
Affirming summary judgment dismissing breach of termite-prevention contract and negligence claim, holding that the presence of termites alone did not support the breach of contract claim or the negligence claim.
(8-2-0: Westbrooks and McDonald concurred in result only without separate written opinion.)

Underwood v. State, 2021-CP-01123-COA (Civil – Other)
Dismissing direct appeal of a guilty plea for lack of jurisdiction without prejudice.
(10-0)

Christian v. State, 2021-KA-00898-COA (Criminal – Felony)
Affirming conviction of aggravated assault upon receipt of a Lindsey brief and the Court’s review of the record, holding that there were no arguable issues for appeal.
(10-0)

Lewis v. Lewis, 2022-CA-00016-COA (Civil – Domestic Relations)
Affirming the chancery court’s line of demarcation for division of the marital estate and award of alimony, holding that the chancellor was well within her discretion to use a December 2020 temporary order as the line of demarcation rather that the trial date and that the chancellor’s alimony findings were sufficient and her ruling was not ab abuse of discretion.
(10-0)

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (Civil – Other)
Reversing a monetary judgment following a jury trial, holding that the board of trustees of a church lacked standing to sue the church’s senior pastor and chairman of its deacons for breach of fiduciary duties and other claims, holding that the board lacked authority to file the lawsuit without the church members’ approval and lacked authority to maintain suit after a majority of members voted against it.
(5-2-3: Westbrooks and Emfinger concurred in part and in the result without separate written opinion; Greenlee dissented without separate written opinion; Barnes dissented, joined by Greenlee and McDonald)

Herbert v. Herbert, 2021-CA-01291-COA (Civil – Domestic Relations)
Affirming on direct appeal and reversing on cross-appeal, holding that the circuit court erred in granting summary judgment on the grounds the affirmative defense of release because that defense had been waived but affirming on de novo review of the merits of claims for intentional infliction of emotional distress, verbal assault, conversion, fraudulent misrepresentation, defamation, and breach of contract, but reversing the circuit court’s denial of attorney’s fees to the defendant and remanded for further proceedings.
(6-1-2: McDonald concurred in result only without separate written opinion; Carlton concurred in part and dissented in part, joined by McDonald; Emfinger did not participate.)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (denying rehearing)

Yarborough v. Singing River Health Systems, 2021-CA-00668-COA (denying rehearing)

Buchanan v. State, 2021-CP-01069-COA (recalling mandate so motion for rehearing can proceed on merits)

Hand Down Page

Mississippi Court of Appeals Decisions of April 11, 2023

The Mississippi Court of Appeals handed down six opinions today (eight, if you count each of the three PCR cases that were consolidated). The list starts off PCR heavy, but then we pick up a reverse-Batson/criminal appeal, a personal injury/borrowed servant case, and a defamation case.

Simoneaux v. State, 2022-CP-00532-COA (Civil – PCR)
Affirming the circuit court’s order dismissing the plaintiff’s third PCR motion, holding that there was no error in finding that the PCR motion was successive and time-barred.
(9-0: McCarty did not participate)

Holliday v. State, 2022-CA-00149-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in denying the petition claiming ineffective assistance of counsel based on the plaintiff’s knowing and voluntary guilty plea.
(9-0: Smith did not participate)

Blackmore v. State, 2021-CA-00743-COA (Civil – PCR)
consolidated with
White v. State, 2021-CA-00744 COA
consolidated with
Traxler v. State, 2021-CA-00769-COA
Affirming denials of motions in three separate cases arguing that the plaintiffs’ classifications as violent offenders was unconstitutional, holding that Tenth Amendment reserved to Mississippi the right to define DUI as a crime of violence and that enactment of section 97-3-2 superseded the holding in Smith v. State, 942 So. 2d 308 (Miss. Ct. App. 2006), expressly overruling Smith.
(9-0: Emfinger did not participate)

Smith v. State, 2021-KA-01003-COA (Criminal – Felony)
Affirming first-degree murder conviction, holding that the trial court did not err in returning four jurors back to the venire after a “reverse-Batson challenge” by the State or in admitting autopsy photos.
(7-3: McCarty concurred in part and dissented in part, joined by Westbrooks and McDonald; Westbrooks and McDonald also concurred in part and dissented in part without separate written opinion)

Dawson v. Burgs, 2021-CA-01038-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the defendants where the plaintiff was allegedly injured by a coworker, holding the plaintiff (an employee of the defendant temporary staffing agency) was a “borrowed servant” of Dollar General and therefore the alleged tortfeasor (who was an employee of Dollar General) was immune for suit under the MWCA which precluded his direct liability and the staffing agency’s vicarious liability.
(8-2: Westbrooks dissented joined by McDonald)

NOTE – This is a good reminder that substance prevails over form prevail when classifying someone as an “employee” or “independent contractor”:

Fagan v. Faulkner, 2022-CA-00130-COA (Civil – Torts)
Reversing bench trial verdict for the plaintiff in a defamation case, holding that an obscene outburst by a surgeon directed at a nurse were not actionable as slander per se because the evidence did not show the surgeon spoke them in relation to the nurse’s capability to perform her job.
(6-4: McCarty dissented, joined by Carlton, Westbrooks, and McDonald; McDonald also dissented without separate written opinion)

Other Orders

Thomas v. State, 2021-CP-00060-COA (granting motion to recall mandate)

Rhea v. Career General Agency, Inc., 2021-CA-00580-COA (denying rehearing)

Davis v. State, 2021-KA-00759-COA (denying rehearing)

Hull v. State, 2022-CP-00088-COA (recalling mandate and accepting petition for rehearing as timely)

Hand Down List

Mississippi Supreme Court Decisions of March 16, 2023

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

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

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

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

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

NOTE – Here is the Court’s Conclusion:

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

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

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

Other Orders

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

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

Hand Down List

Mississippi Court of Appeals Decisions of March 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. There was nary a dissent, but a conviction of child exploitation was reversed. The are other felony opinions, two divorce cases, a contract case involving a defunct LLC, and a PCR case.

Nunn v. State, 2021-KA-01371-COA (Criminal – Felony)
Affirming conviction of having meth within 1,500 feet of a church, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mental competency evaluation where the trial court twice held a hearing to determine whether the defendant understood and appreciated the significance of the trial proceedings and had the ability to rationally aid in his defense or in denying the defendant’s entrapment instruction.
(10-0)

Singh v. State, 2022-CP-00273-COA (Civil – PCR)
Affirming denial of PCR motion, holding no error in revoking post-release supervision since the plaintiff absconded from supervision.
(10-0)

Williams v. Williams, 2021-CA-00758-COA (Civil – Domestic Relations)
Affirming judgment of divorce, holding that the chancellor’s valuation of the marital residence was based on evidentiary support in the record.
(10-0)

Wakefield v. State, 2021-KA-00187-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder, to kidnapping, and to auto theft, holding:
1. The circuit court had jurisdiction because it sat in one of the counties where the crimes were committed;
2. That the convictions did not violate the Double Jeopardy Clause even though the defendant gave just one car ride because he was an accessory to three distinct felonies so the merger doctrine did not apply;
3. That there was no error based on the weight or sufficiency of the evidence;
4. That the indictment was not defective for failing to include “intent” where it did include “willfully;” and
5. That there was no error in admitting autopsy and crime scene photos.
(8-1-0: McDonald concurred in result only without separate written opinion; Emfinger did not participate)

NOTE – These convictions stemmed from the kidnapping and murder of six-year-old Kingston Frazier in 2017.

Holmes v. Lankford, 2022-CA-00203-COA (Civil – Contract)
Affirming summary judgment for the defendant in a dispute over a sand and gravel operation agreement, holding that the plaintiff did not have standing to enforce the agreement that was between the defendant and the plaintiff’s administratively dissolved LLC and that the plaintiff did not otherwise show he was entitled to relief.
(10-0)

NOTE – Conducting business through an LLC can cut both ways:

Mason v. State, 2021-KA-00964-COA (Criminal – Felony)
Reversing conviction of child exploitation, holding that the trial court erred in denying funds for an independent computer forensics expert because the State’s witness/detective should have been considered an expert and that this error hindered the defendant’s jurisdictional challenge and led to evidentiary errors that contributed to an unfair trial.
(7-3-0: Wilson, Smith, and Emfinger concurred in part and in the result)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Modified opinion on motion for rehearing affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(9-0)

Other Orders

Hornsby v. Hornsby, 2020-CA-01091-COA (dismissing motion for attorney’s fees)

Blount v. State, 2021-KA-00204-COA (denying rehearing)

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (granting pro se motion for extension of time to file motion for rehearing and recalling mandate)

Easterling v. State, 2022-CA-00796-COA (vacating circuit court’s order and rendering judgment dismissing motion for PCR)

Hunter v. State, 2022-TS-01269-COA (dismissing appeal as untimely)

Hand Down List

Mississippi Supreme Court Decisions of February 2, 2023

The Mississippi Supreme Court handed down two opinions today. One is a consolidated appeal resolving a “circuit split” where two state circuit courts reached opposite conclusions on the same legal issue involving UM coverage for accidents caused by MTCA-immune tortfeasors. (Come for the holding, stay for the strong words about the Fifth Circuit’s earlier Erie-guess on this issue.) The other opinion involves the rights of a successor in title to a reciprocal easement.

Lee v. State Farm Mutual Automobile Insurance Company, 2021-CA-00882-SCT consolidated with State Farm Mutual Automobile Insurance Company v. Cooper, 2021-IA-01006-SCT (Civil – Contract)
Resolving a “circuit split” by holding that under the UM statutes (as amended in 2009) the UM carrier was required to provide UM coverage to plaintiffs for damages sustained in collisions with entities afforded immunity under MTCA, reversing summary judgment in one case and affirming the denial of summary judgment in the other case.
(7-0: Chief Justice Randolph and Justice Beam did not participate.)

Practice Point – The Supreme Court specifically addressed the limited precedential value of this decisions:

Note – The Supreme Court would like us to remember that the Fifth Circuit’s Erie-guesses are not binding precedent in Mississippi. McGlothin is a Fifth Circuit opinion from 2019 that the Mississippi Supreme Court did not exactly agree with:

So what does the Mississippi Supreme Court do?

You can read that approach (that involves the doctrine of in pari materia) in the opinion.

TransMontaigne Operating Company, L.P. v. Loresco I, LLC, 2021-CA-00980-SCT (Civil – Real Property)
Affirming the chancellor’s denial of the plaintiff’s request for declaratory and injunctive relief, holding that the express language of a reciprocal easement was specific and clear and allowed the successor in title to the easement to full use of the easement per its terms and did not limit the successor to the scope of actual use by the predecessor in title.
(7-2: Justice Griffis dissented, joined by Justice King.)

Other Orders

In Re: The Rules of Civil Procedure, 89-R-99001-SCT (granting motion to amend Miss. R. Civ. P. 45 – *An order amending Rule 45 was also on the hand down list last week. The link to the order on the hand down page last week is no longer active, but you can see a copy of the PDF that was handed down last week on my post from last week. I quickly compared the two and didn’t immediately see any differences except the date that the amendment will go into effect based on the date the orders were entered.)

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing County Judge Carol Jones Russell of Forrest Countyas a member of the Supreme Court of Mississippi Advisory Committee on Rules on the nomination by the Mississippi Conference of County Court Judges)

Fannings v. State, 2015-M-01061 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Cook v. State, 2017-M-00455 (denying motion for PCR, finding the filing frivolous, and restricting the plaintiff from further filings in forma pauperis)

Moffett v. State, 2021-CT-00622-SCT (denying cert)

Billie v. State, 2022-M-00416 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Hand Down List

Mississippi Supreme Court Decisions of January 19, 2023

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

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

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

Other Orders

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

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

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

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

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

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

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

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

Hand Down List

Mississippi Court of Appeals Decisions of January 17, 2023

The Mississippi Court of Appeals handed down seven opinions today. There are several criminal cases, a reversal of summary judgment in a slip and fall case, an arbitration denial, and several PCR cases.

Jones v. State, 2021-KA-01263-COA (Criminal – Felony)
Affirming conviction of capital murder, holding the trial court did not err in denying a mistrial after a prospective juror mentioned the defendant’s past wrongdoing, that the verdict was based on sufficient evidence and not against the weight of the evidence, and that the ineffective assistance of counsel claim could not be appropriately addressed on direct appeal and denying the issue without prejudice.
(10-0)

Creel v. State, 2021-CP-00977-COA (Civil – PCR)
Affirming dismissal of a motion for PCR, holding that the plaintiff was properly sentenced under the statute in place at the time of his offenses and that his guilty pleas were entered knowingly, intelligently, and voluntarily.
(9-0: Judge Emfinger did not participate)

Smith v. State, 2021-CA-01259-COA (Civil – PCR)
Affirming the denial of a motion for PCR without evidentiary hearing, holding that the plaintiff’s guilty pleas were knowingly, intelligently, and voluntarily given, and that the trial court did not err in ruling without an evidentiary hearing.
(9-0: Judge Smith did not participate)

Anderson v. State, 2021-KA-01340-COA (Criminal – Felony)
Affirming conviction of burglary, holding that the trial court did not commit reversible error by admitting evidence of crimes in other counties under Rule 404(b) and that there was no merit to the ineffective assistance of counsel claims based on lack of objections to hearsay.
(9-1-0: Judge McCarty concurred in part and in the result without separate written opinion)

Hathorne v. State, 2021-CA-00306-COA (Civil – PCR)
Affirming denial of a motion for PCR, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred.
(2-4-4: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Lawrence and Judge Smith concurred in the result only; Judge McCarty dissented, joined by Judge Carlton, Judge Westbrooks, and Judge McDonald)

Brooks v. Jeffreys, 2021-CA-01113-COA (Civil – Personal Injury)
Reversing summary judgment in favor of a defendant in a slip and fall case, holding that there were genuine issues of material fact as to whether the cleaning company breached the duty of care where the plaintiff slipped and fell on the floor of her residence that was actively being mopped when she slipped.
(9-1: Judge Greenlee concurred in part and dissented in part without separate written opinion)

NOTE – Because the plaintiff slipped and fell in her own residence that was being cleaned by the defendant, the Court of Appeals analyzed this is a general negligence action and not a premises liability case.

Liberty National Life Insurance Company v. Hancock, 2021-CA-00605-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration, holding that where a life insurance policy was voluntarily entered into, cancelled, and then reinstated via forgery of the insured’s signature, the arbitration agreement in the policy was not enforceable.
(6-4: Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Wilson, and Judge Greenlee)

Other Orders

$153,340.00 v. State, 2020-CA-01409-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of January 10, 2023

The Mississippi Court of Appeals handed down nine opinions today. These decisions cover a wide range of areas including wills, felonies, personal injury, defamation, and adoption. One of the more interesting and potentially useful decisions analyzes the admissibility of images from Google Earth and measurements generated by Google Earth.

Perrigin v. State, 2021-KA-00858-COA (Criminal – Felony)
Affirming conviction of sexual battery of a minor, holding that the verdict was not against the weight of the evidence, that the Confrontation Clause was not violated since the victim did testify at trial, and that the ineffective assistance of counsel claim should be raised on a PCR petition.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion)

Wilkerson v. Wilkerson, 2021-CA-01208-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s ruling in a will contest, holding that the word “should” was permissive and that, in any event, even if there was a mandatory requirement that one son have an opportunity to purchase a property there was sufficient evidence to support the chancellor’s finding that he did have such a chance.
(10-0)

Bolton v. Lee, 2020-CA-00344-COA (Civil – Other)
Affirming a dismissal for failure to state a claim in favor of a banker and a bank and affirming summary judgment in favor of a lawyer and law firm, holding that collateral estoppel barred the plaintiff from recovering in a civil action on the same facts that formed the basis of their criminal convictions of tax evasion and filing false tax returns.
(8-2-0: Judge Wilson and Judge Westbrooks concurred in part and in the result without separate written opinion)

Pope v. Martin, 2021-CA-00367-COA (Civil – Torts)
Affirming in part and reversing in part summary judgment granted in favor of the defendant in a defamation and wiretapping suit, holding that there was no error in granting summary judgment without a hearing or without issuing findings of fact or conclusions of law, and that summary judgment on the defamation claim was proper but that there were genuine fact issues on the wiretapping claim.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion)

NOTE – Summary judgment rulings made without any accompanying findings of fact and conclusions of law to explain the basis for the decision are frustrating for litigants and parties. This is especially true when no hearing was given. There are certainly cases where such rulings make sense, but when the parties have spent considerable time and energy in briefing issues it is helpful to know why you won or lost. Without an explanation of why summary judgment was granted or denied, litigants do not have an opportunity to see where they went wrong and hone their craft. It also does not help the parties focus the issues on appeal. It is clear that Rule 52 does not apply to summary judgments but rules can always be amended.

Evilsizer v. Beau Rivage Resorts, LLC, 2021-CA-01222-COA (Civil – Personal injury)
Affirming summary judgment in favor of the owner of a cooking trailer who was sued by an 18-wheeler driver who struck the awning of the cooking trailer, holding that the there were no genuine fact issues where the evidence showed that the awning was closed approximately one hour before the collision and there was no evidence that the trailer owner opened the awning before the accident or had actual or constructive notice that the awning was open and extending into the roadway.
(8-1-0: Judge McDonald concurred in result only without separate written opinion; Judge Westbrooks did not participate)

Boutwell v. Fairchild, 2021-CA-01046-COA (Civil – Domestic Relations)
Affirming termination of parent rights and allowing adoption, holding that the court had subject matter jurisdiction, that the child was eligible for adoption because the chancery court had properly assumed original and exclusive jurisdiction over the matter, and that the chancellor did not err in finding that parental rights should be terminated.
(8-2-0: Judge McDonald concurred in part and in the result without separate written opinion; Judge McCarty concurred in result only without separate written opinion)

Green v. State, 2021-KA-00613-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the trial court did not err in refusing the defendant’s lesser-included instruction for simple domestic violence because the evidence did not support that instruction.
(10-0)

Taylor v. State, 2021-KA-00721-COA (Criminal – Felony)
Reversing conviction of violating state law by living within 3,000 feet of a playground as a registered sex offender, holding that the sex-offender-registry law is not unconstitutionally vague by what is meant by “playground” or how 3,000 feet should be measured and that the evidence was sufficient to support the conviction, but reversing because the Google Earth map used to calculate the distance was not properly authenticated and contained hearsay.
(6-2-2: Judge Greenlee and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result and dissented in part, joined by Judge Greenlee and joined in part by Judge McDonald and Judge McCarty)

NOTES – The majority and the partial dissent engage in a collegial discussion of whether the term “playground” encompasses the property on which a playground sits or just the playground itself, the dissent arguing for the narrow construction. Both the majority and the partial dissent have interesting analyses of the admissibility of Google Earth images and measurements generated by it (without much disagreement on this issue).

Colburn v. State, 2021-KA-00865-COA (Criminal – Felony)
Affirming conviction for sale of meth within 1,500 feet of a church, holding that the trial court did not err in admitting evidence of the defendant’s prior conviction for possession of cocaine with intent to sell.
(5-1-4: Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald, and joined in part by Judge Lawrence)

Other Orders

None

Hand Down List