Tag: Tort

Mississippi Court of Appeals Decisions of May 14, 2024

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)

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Mississippi Court of Appeals Decisions of September 26, 2023

The Mississippi Court of Appeals handed down nine opinions today. There is something for everyone: tort, real property, divorce, direct criminal appeals, and PCR. Due to volume of paying work and COA output I had to move quickly to get these out, so I expect a higher-than-normal rate of typos.

Odom v. State, 2021-KA-00676-COA (Criminal – Felony)
Affirming conviction of murder, holding that computer printouts of GPS and location data from Google were not properly authenticated and should not have been admitted but that the error was harmless, that the trial court did not abuse its discretion in admitting photos of a vehicle over an authentication objection, that the trial court did not err in excluding paint-transfer evidence and crime lab documents for lack of authenticity, and holding that the conviction was supported by sufficient evidence.
(7-3: Wilson dissented without written opinion; Westbrooks dissented, joined in part by McDonald)

Practice Point – On the authenticity of Google satellite images, the Court noted that the images themselves were not hearsay, but that computer-generated data included on the photos required authentication:

Robb v. McLaughlin, 2021-CA-00672-COA (Civil – Personal Injury)
Affirming a judgment after jury trial in a negligence/infliction of emotional distress/invasion of privacy/defamation/libel case stemming from the defendant posting a false ad for prostitution online with the plaintiff’s phone number, holding that the defendant’s due process rights were not violated, the proceedings were properly bifurcated into compensatory and punitive phases, the plaintiff was not required to produced expert medical testimony on her intentional infliction of emotional distress claim, the damages were not speculative, and the jury instructions were appropriate.
(9-1-0: Wilson concurred in part and in the result without written opinion.)

Practice Point– I have cited the 5th Circuit’s Krieser decisions for the proposition that settlement as to one defendant does not affect apportionment at trial–a proposition that can cut either way. It is nice to have a Mississippi Court of Appeals decision to cite (citing Krieser) for this proposition.

Alexander v. State, 2022-CA-00397-COA (Civil – PCR)
Affirming denial of PCR motion that argued ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous, legally in error, or an abuse of discretion.
(9-1-0: Westbrooks concurred in result only without written opinion)

Bradshaw v. State, 2022-KA-00469-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the indictment was not overly broad to the point it failed to provide sufficient notice under a plain error analysis or on the merits, that there was no violation of the right to speedy trial, and that the trial court did not abuse its discretion in allowing testimony of prior bad acts because it complied with Rule 404(b).
(9-0: Emfinger did not participate.)

Smith v. State, 2022-KA-00664-COA (Criminal – Felony)
Affirming conviction of sexual battery of a child, holding that the trial court did not abuse its discretion by denying the defendant’s motion for continuance because the State’s discovery violations did not result in manifest injustice, that the trial court did not commit plain error by severing the codefendant’s case without a proper motion, and that the lack of error precluded reversal for cumulative error.
(10-0)

Titus v. Stelzer, 2022-CA-01079-COA (Civil – Real Property)
Affirming the chancellor’s order in a suit to set aside a quitclaim deed and to confirm and quiet title, holding that the chancellor did not err in setting aside the quitclaim deed and confirming title through a prior conveyance.
(9-1-0: McCarty concurred in part and in the result without written opinion.)

Gregg v. State, 2022-KA-00485-COA (Criminal – Felony)
Affirming conviction of possession of amphetamine and marijuana, holding that the sole issue on appeal–ineffective assistance of counsel–should be dismissed without prejudice because the record was insufficient to address the issue on direct appeal.
(10-0)

Patel v. State, 2022-CA-00985-COA (Civil – PCR)
Affirming denial of motion to withdraw and vacate a prior admission of guilt in a pretrial intervention after the petitioner learned that even with dismissal and expungement he was not eligible for lawful permanent residence status under the INA, holding that the circuit court properly dismissed the motion for lack of jurisdiction.
(9-0: Emfinger did not participate.)

Gussio v. Gussio, 2020-CA-00785-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in a divorce case granting the mother a divorce and granting her physical and legal custody of the children, holding that the chancellor did not err in the amount of child support awarded, in not imputing income to the mother, in awarding alimony, by denying the father’s motion in limine to exclude evidence of the mother’s attorney’s fees, in awarding attorney’s fees, or in denying motion to alter or amend the judgment and consider new evidence.
(5-5: Wilson concurred in part and dissented in part, joined by Greenlee, Lawrence, Smith, and Emfinger.)

NOTE – Judge Wilson’s partial dissent agreed with the rulings on child support and alimony, but asserted that the award of attorneys’ fees should not be affirmed because the record and the chancellor’s findings on attorneys’ fees were insufficient. I am putting this one on my cert watchlist.

Other Orders

Lynn v. State, 2021-KA-00968-COA (denying rehearing)

Culver v. Culver, 2021-CA-01108-COA (denying rehearing)

Stevenson v. State, 2021-KA-01286-COA (recalling mandate)

Lestrick v. State, 2021-CP-01409-COA (denying motion for additional time to file motion for rehearing)

Covin v. Covin, 2022-COA-00019-COA (denying motion for appellate attorney’s fees)

Amos v. State, 2022-KA-00171-COA (denying motion for enlargement of time to file motion for rehearing)

Pickle v. State, 2022-CP-00929-COA (recalling mandate)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (granting motion to dismiss consolidated appeals as interlocutory)

Miller v. State, 2023-TS-00812-COA (allowing appeal to proceed as timely)

Gardner v. State, 2023-TS-00903-COA (granting motion to consolidate)

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