Tag: Torts

Mississippi Supreme Court Decisions of May 18, 2023

The Mississippi Supreme Court handed down four opinions today. Three are direct criminal appeals and one is an interlocutory appeal of a tort suit that a litigant filed against counsel for the opposing party. One of the criminal cases was taken up so the Supreme Court could address for the first time the issue of whether the crime of attempted murder requires an “overt act” under the amended 97-1-7. The Supreme Court also granted cert in a child custody modification case.

Anderson v. State, 2022-KA-00530-SCT (Criminal – Felony)
Affirming conviction of first-degree murder and life sentence, holding that the trial court did not err in refusing a heat-of-passion instruction or in allowing the defendant’s confession to be presented to the jury, and that the verdict was supported by sufficient evidence and not against the overwhelming weight of it.
(9-0)

Beale v. State, 2020-CT-00614-SCT (Criminal – Felony)
Affirming conviction of attempted murder on cert, holding that the indictment correctly stated the necessary elements of the crime and that two jury instructions did not constructively amend the indictment.
(6-3: King dissented, joined by Kitchens and Coleman.)

NOTE – The Mississippi Supreme Court granted cert to address for the first time the issue of whether the crime of attempted murder requires an “overt act” under the amended Miss. Code Ann. § 97-1-7:

Henley, Lotterhos & Henley, PLLC v. Bryant, 2021-IA-00994-SCT (Civil – Torts)
Reversing the circuit court’s denial of a law firm’s motion to dismiss/summary judgment in a lawsuit asserting a slew of intentional torts stemming from the handing of a subrogation claim, holding that attorneys do not owe duties to adverse parties that can give rise to tort liability and remanding for litigation of the claims against the insurance company.
(5-2-1: Randolph and Griffis concurred in result only without separate written opinion; King dissented; Kitchens did not participate.)

Spiers v. State, 2022-KA-00038-SCT (Criminal – Felony)
Affirming conviction of burglary of a dwelling and attempted sexual battery, holding that the defendant waived the issue of whether the trial court erred by granting a jury instruction requiring the defendant to prove consent by clear and convincing evidence and that the plain error doctrine did not apply, that the defendant failed to establish a case of ineffective assistance as to the instruction, and that the trial court did not commit plain error with regard to alleged prosecutorial misconduct during closing.
(5-1-3: Maxwell concurred in part and in result without separate written opinion; King dissented, joined by Kitchens and Coleman)

Other Orders

Price v. State, 2019-CT–01890-SCT (denying cert)

Blagodirova v. Schrock, 2020-CT-01162-SCT (granting cert) (You can read my summary of the 4-2-4 COA decision by clicking here.)

Davis v. Davis, 2020-CA-01304-SCT (denying rehearing)

Bowman v. State, 2020-CT-01371-COA (denying cert)

Tennesen v. City of Hattiesburg, 2021-CT-00137-SCT (denying cert)

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