Mississippi Court of Appeals Decisions of December 13, 2022

The Mississippi Court of Appeals handed down eight opinions today. There are several interesting criminal cases and a couple of PCR cases. But the two opinions that strike me as the most significant are a med mal case and a wills and estates case. The med mal decision reversed summary judgment for the hospital, holding that the layman’s exception to the usual expert witness requirement applied. The wills case addressed the effect of a decedent’s handwritten note forgiving a promissory note upon his death by “accident or sickness” after he died by suicide.


Barfield v. State, 2021-KA-00660-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder and denial of post-trial motions, holding that the evidence that the defendant was included in conversations leading up to the effort to conceal the victim’s body and was present (but did not physically participate) during those efforts was sufficient; that the trial court did not err in giving instructions on aiding and abetting, accomplice testimony, or the definitions of “conceal” and “participate,” or in refusing an instruction that the defendant had no duty to disclose the location of the body to the police; that the trial court did not err by allowing certain rebuttal testimony; that the trial court did not commit plain error in allowing testimony by State’s witnesses that they pleaded guilty to manslaughter and accessory after the fact.
(7-3: Judge McCarty dissented, joined by Judge Westbrooks and Judge McDonald)


Smith v. State, 2021-KA-01104-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court erred in excluding the entirety of the defendant’s firearms expert’s testimony but that this error was harmless and that the verdict was not contrary to the weight of the evidence.
(8-2-0: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion)


Holliday Construction, LLC v. George County, Mississippi, 2021-CA-00667-COA (Civil – Contract)
Affirming trial court’s decision stemming from the County’s award of contract for hurricane debris cleanup to an out-of-state company, holding that the County’s award was illegal but not arbitrary and capricious; that the trial court had authority to allow the County to reject all bids, re-advertise, and allow re-bids for the work; and that the trial court did not err in denying the plaintiff’s compensatory damages claim since the plaintiff failed to show it was entitled to the original award of the contract.
(8-1-1: Judge Wilson concurred in part and in the result without separate written opinion; Judge Carlton concurred in part and dissented in part without separate written opinion)


Hornsby v. Hornsby, 2020-CA-01091-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions related to child support, holding that the chancellor did not abuse his discretion in denying the father’s request for reduction in child support, did not err in finding that the mother was not in contempt, and did not err in awarding the mother attorney’s fees.
(7-0: Judge Carlton, Judge Lawrence, and Judge Smith did not participate)


Siggers v. State, 2021-CP-01180-COA (Civil – PCR)
Reversing denial of PCR motion for lack of jurisdiction, holding that the plaintiff did not need to obtain permission from the Mississippi Supreme Court to file his PCR motion.
(10-0)


Obert v. AABC Property Management, LLC, 2021-CA-00612-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s dismissal of two complaints for collection on two promissory notes, holding that the chancellor did not abuse his discretion in finding that a handwritten note from the decedent stating that a $700,000 promissory note would be forgiven if he died by “accident or sickness” was a holographic codicil to his will or in ruling that his death by suicide was death by “sickness” because it was causally related to debilitating medical issues surrounding his prostate cancer.
(10-0)

Clark v. Vicksburg Healthcare, LLC, 2021-CA-00173-COA (Civil – Medical Malpractice)
Affirming in part and reversing in part the circuit court’s grant of summary judgment in favor of a hospital in a med mal case, holding that the layman’s exception to the typical expert requirement applied in this case where a nurse allowed a 10-day-old baby to fall to the floor and reversing the dismissal of that aspect of the suit, but affirming denial of the other med mal claims for lack of expert testimony.
(Judge Greenlee concurred in part (application of the layman’s exception) and dissented in part (he would have remanded with ruling on the remaining claims) joined by Chief Judge Barnes, Judge Westbrooks, Judge McDonald, and Judge Lawrence)

Practice Point – The Court of Appeals noted that the layman’s exception had not previously been extended to “falls” cases, but distinguished this case from other “falls” cases involving post-op or elderly patients.


Colenberg v. State, 2021-CA-00673-COA (Civil – PCR)
Affirming denial of motion for post-conviction collateral relief, holding that the circuit court did not err in ruling that the plaintiff failed to establish by a preponderance of the evidence that there was not sufficient factual basis for his guilty plea.
(5-4: Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge McCarty, Judge Emfinger; Judge McDonald did not participate)

Other Orders

Gardner v. Jackson, 2020-CA-01313-COA (denying rehearing)

Johnson v. State, 2021-KA-00571-COA (denying rehearing)

Phillips v. City of Oxford, 2021-CA-00639-COA (denying rehearing)

Guinn v. Claiborne, 2021-CP-00997-COA (denying rehearing)

Jones v. State, 2021-CP-01088-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (granting pro se appellant’s pro se motion to recall mandate)

Ross v. State, 2022-TS-00901-COA (denying appellant’s pro se motion to show cause and dismissing untimely appeal)


Hand Down List

Summaries of the Mississippi Supreme Court opinions of March 17, 2022

The folks publishing the hand down lists are not on spring break. There were four opinions today that are must-reads for anyone whose law practice these opinions touch. There is a medical malpractice/expert testimony decision, a dismissal for failure to prosecute decision that is more about the abuse-of-discretion standard of review, a breach of commercial lease opinion, and a will probate opinion.


Claiborne County Hospital v. Truitt, 2020-IA-01017-SCT (Civil – Medical Malpractice/Summary Judgment/Experts)
The plaintiff fell while walking to the restroom to give a urine sample. The plaintiff filed a negligence claim against the hospital, alleging that a nurse failed to assist him to the restroom. The hospital filed a motion for summary judgment on the grounds that the plaintiff lacked medical expert testimony. The plaintiff argued that the layman’s exception applied or, alternatively, that the plaintiff had identified the requisite expert testimony in an interrogatory answer. The circuit court denied the hospital’s motion for summary judgment and the Supreme Court granted interlocutory appeal. The Supreme Court reversed the circuit court and rendered judgment in favor of the hospital, holding that “the layman’s exception does not apply to the facts of this case because Truitt’s claim involves the rendering of medical services and a nurse’s professional judgment for which expert testimony is required.” The Supreme Court also held that the designation via interrogatory answer was insufficient because the “designation does not provide sworn expert testimony” and noting that the plaintiff “only provided the name of his expert and a brief description of the anticipated testimony.”
(All justices concurred)


Leasy v. SW Gaming, LLC, 2019-CT-01505-SCT (Civil – Personal Injury/Failure to Prosecute/Standard of Review)
Reversing the Court of Appeals and reinstating the circuit court’s judgment dismissing the plaintiff’s claim for failure to prosecute, holding that the Court of Appeals improperly reweighed the evidence and reaffirming the controlling abuse-of-discretion standard.
(Justice King dissented, joined by Justice Kitchens. Justice Beam did not participate in the decision)
(Note: At the Court of Appeals level, Judge Carlton wrote a dissent that was joined by Judge Wilson)

Practice Point – Standards of review matter! The Mississippi Supreme Court has shown a renewed interest in standards of review. This opinion is more about the standard of review than it is about the failure to prosecute. The Supreme Court described the Court of Appeals’ incorrect application of the standard of review as follows:

The Supreme Court bluntly concluded:


Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. v. 400 South Lamar Oxford Mad Hatter Partners, LLC, 2019-CT-01702-SCT (Civil – Real Property/Landlord-Tenant Law/Commercial Real Estate)
Affirming the circuit court’s denial of the tenant’s motion for partial summary judgment seeking a dismissal of the landlord’s claims for back rent, holding that the landlord’s demand for possession and the tenant’s departure from the premises did not prevent the landlord from recovering back rent; affirming the circuit court’s grant of summary judgment to the landlord based upon material breaches by the tenant; affirming the Court of Appeals’ finding that the tenant’s mitigation argument was waived because it was not raised prior to the appeal; affirming the Court of Appeals’ decision granting the landlord’s motion to quash the tenant’s request for records related to a news story a spat between the landlord’s principal and another developer because those records were not relevant to the appeal; and affirming the circuit court’s denial of the tenant’s untimely motion to amend to add claims of libel and libel per se because they were delayed and barred by the one-year statute of limitations.
(All participating justices concurred.)


In the Matter of the Last Will and Testament of Luke Beard, Deceased: Antonio Christmas v. Diane Christmas, 2019-CT-01821-SCT (Civil – Wills, Trusts, and Estates/Probate)
Reversing the court of appeals and reinstating the chancery court’s dismissal of a petition to probate a purported will, holding that in the absence of the testimony of at least one subscribing witness, a proponent of a will must prove the handwriting of the testator and at least two subscribing witnesses. This unanimous, textualist decision centered around whether the phrase “or some of them” in section 91-7-7 referred to the subscribing witnesses or collectively to the testator and the subscribing witnesses. Ultimately, the Supreme Court adopted Judge Wilson’s analysis of the textual quandary from his dissent at the Court of Appeals, holding:


The Mississippi Bar v. Henderson, 2021-BD-01141-SCT (Civil – Bar Matters)
Imposing a reciprocal public censure to an attorney publicly censured in Tennessee and assessing costs.


Other Orders

Dille v. State, 2019-CT-00855-SCT (denying petitions for cert)
Lairy v. Chandler, 2019-CT-01423-SCT (granting petition for cert)
Cork v. State, 2020-KA-00060-SCT (denying pro se motion for rehearing)
Magnolia Health Plan, Inc. v. Mississippi’s Community Health Commissions, 2020-CA-00167-SCT (denying motion for rehearing)


Hand Down List