Tag: Workers' Comp

Mississippi Court of Appeals Decisions of April 23, 2024

The Mississippi Court of Appeals handed down four opinions yesterday. There is a workers’ comp case, a divorce case, a direct criminal appeal, and an MDOC appeal.

White v. The Home Depot, 2022-WC-00894-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decisions related to alleged work injuries, holding that there was substantial evidence to support the Commission’s denial of the claimant’s request to change physicians, to continue medical treatment, and to receive indemnity benefits as to the first alleged injury, and to support the Commission’s finding that the second alleged injury was not compensable under the MWCA.
(10-0)

Brecheen v. Brecheen, 2022-CA-00190-COA (Civil – Domestic Relations)
Affirming the chancery court’s rulings in a divorce proceeding on direct appeal and cross-appeal, holding that the chancellor did not abuse her discretion restricting the place and condition of the father’s visits based on a history of domestic violence, using paycheck stubs from the father’s previous employment to calculate child support, classifying the father’s severance package as marital property, or allowing the father to claim the minor child for tax purposes every other year.
(10-0)

Mai v. State, 2022-KA-00798-COA (Criminal – Felony)
Affirming conviction of fondling a child, holding that the evidence was sufficient to support the conviction, that the circuit court did not err in refusing a jury instruction that was not supported by Mississippi case law, and that the defendant’s failure to obtain a ruling on his objection to the admission of Rule 404(b) waived the argument on appeal.
(9-0: Emfinger did not participate)

Clark v. McDonald, 2022-CP-01296-COA (Civil – State Boards and Agencies)
Affirming a series of affirmances of a finding that an inmate violated a rule against assault by stabbing another inmate with a shiv, holding that there was no violation of the inmate’s procedural due process rights.
(10-0)

Other Orders

  • MDHS v. Johnson, 2022-SA-00605-COA (denying rehearing)
  • Harper v. State, 2022-KA-00659-COA (denying rehearing)
  • Hills v. Manns, 2022-CA-00774-COA (denying rehearing)
  • Barefield v. Barefield, 2022-CA-00834-COA (denying rehearing)
  • Forrest v. State, 2022-KA-00844-COA (denying rehearing)

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Mississippi Supreme Court Decisions of January 25, 2024

The Mississippi Supreme Court handed down two opinions on Thursday. One is an appeal seeking to set aside a foreclosure sale. The other is an appeal of summary judgment dismissing a workers’ comp bad faith claim that addresses whether an employer’s duties under the MWCA can be delegated to a third-party administrator.

Evans v. MC & J Investments, LLC, 2022-CA-01248-SCT (Civil – Real Property)
Affirming the chancery court’s refusal to set aside a foreclosure sale, holding that although the statute of frauds does not bar recovery when promissory estoppel is appropriate there was no evidence of reliance in this case and that the trial court did not err in finding that the foreclosure sale price was not so inadequate as to shock the conscience.
(9-0)

Hardaway v. Howard Industries, Inc., 2022-CA-00787-SCT (Civil – Workers’ Comp)
Affirming summary judgment in favor of an employer in a bad faith lawsuit that followed after the plaintiff’s denied comp claim was found to be compensable by the Commission, holding that the self-insured employer’s administrative duty under the MWCA was delegable and the employer had delegated its duties to a third-party administrator and that the employer’s conduct did not rise to the level of gross negligence.
(9-0)

PRACTICE POINT – This is an important paragraph for future litigants addressing the impact of deposition testimony about legal duties:

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing Hon. Dal Williamson, Circuit Judge, as a member of the Complaint Tribunal from the entry of this order through 8/31/26 for the balance of the term of Hon. Claiborne “Buddy” McDonald IV, Circuit Judge, deceased)

Shoemaker v. State, 2019-M-00832 (denying application for leave to proceed in the trial court, finding the application frivolous, and warning that future frivolous filings could result in sanctions)

Manley v. Manley, 2021-CT-00700-SCT (denying cert)

Knight v. State, 2021-CT-01192-SCT (denying cert)

SDBT Archives LLC v. Penn-Star Insurance Company, 2022-CT-00099-SCT (granting cert)

Brandi’s Hope Company Services, LLC v. Walters, 2022-CT-00188-SCT (denying cert)

West v. State, 2022-CT-00432-SCT (denying cert)

Hill v. State, 2022-CT-00524-SCT (denying cert)

Winston v. State, 2022-CT-00747-SCT (dismissing cert petition as untimely)

Francis v. State, 2022-CA-00964-SCT (denying rehearing)

Harris v. State, 2022-KA-01113-SCT (denying rehearing)

Bell v. State, 2022-CT-01141-SCT (denying cert)

Harvey v. State, 2023-CT-00157-SCT (dismissing cert petition as untimely)

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Mississippi Court of Appeals Decisions of January 16, 2024

The Mississippi Court of Appeals handed down eight opinions on Tuesday. The Court covered a lot of subject matter including trusts, unemployment benefits, workers’ comp, and several direct appeals of criminal convictions.

Rutland v. Regions Bank, 2022-CA-00720-COA (Civil – Wills, Trusts & Estates)
Affirming the circuit court’s grant of summary judgment in favor of a trustee who filed a dec action seeking a judgment that the trust did not have to pay funeral expenses, holding that the circuit court did not err in finding that the trust was irrevocable, was not terminated by a subsequent divorce, and that the contents of the trust should be disbursed to the children.
(10-0)

Black v. State, 2022-KA-01101-COA (Criminal – Felony)
Affirming conviction of capital murder based on robbery, holding that the circuit court did not err in rejecting the defendant’s manslaughter instruction, in sustaining the State’s objection to defense counsel calling a detective a “liar” during closing, or in not issuing a cautionary instruction regarding the written transcript of the defendant’s interview with law enforcement.
(8-1-1: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part without writing)

Coe Law Firm PLLC v. MDES, 2022-CC-01285-COA (Civil – State Boards & Agencies)
Affirming the circuit court’s order dismissing the employer’s appeal of the MDES Board of Review’s order upholding the ALJ’s grant of unemployment benefits, holding that the employer failed to show good cause for not appearing at the ALJ de novo hearing and that issues of misconduct by the employee were therefore moot.
(10-0)

Jones v. State, 2022-KA-01199-COA (Criminal – Felony)
Affirming conviction of attempted aggravated assault with a firearm enhancement, holding that the verdict was not against the overwhelming weight of the evidence.
(9-1-0: McCarty concurred in part and in the result without writing)

Simmons v. State, 2022-KA-01260-COA (Criminal – Felony)
Affirming conviction of receiving stolen property and first-degree murder, holding that the circuit did not err in denying the defendant’s motion for JNOV where the evidence was sufficient for both conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MTD Products, Inc. v. Moore, 2023-WC-00199-COA (Civil – Workers’ Comp)
Affirming the MWCC’s award of PPD for 50 weeks for an upper-left extremity injury, holding that substantial evidence support the MWCC’s finding that the claimant sustained a 25% industrial loss of use that exceeded her 15% functional medical impairment where the claimant’s job duties had to be modified and she was reassigned to different tasks after her injury.
(10-0)

Vlasak v. State, 2022-CP-01211-COA (Criminal – Felony)
Dismissing appeal of the circuit court’s denial of a motion for reconsideration after denying the defendant’s motion to modify sentence that was filed after a guilty plea that was filed after the term of court ended, holding that that the circuit court correctly found that this was essentially a direct appeal after a guilty plea.
(10-0)

Gilmer v. State, 2022-KM-00257-COA (Criminal – Misdemeanor)
Affirming the circuit court’s decision affirming the county court’s order dismissing an appeal of a conviction in justice court of willfully discharging a firearm towards a dwelling and disturbing the peace, holding that there was no error in dismissing the appeal after the defendant failed to appear at his trial de novo.
(8-1-0: Wilson concurred in part and in the result without writing; Emfinger did not participate)

Other Orders

Smith v. State, 2020-KA-00774-COA (denying rehearing)

White v. State, 2021-KA-00818-COA (denying rehearing)

Hobby v. Ott, 2021-CA-01305-COA (denying rehearing)

Ndicu v. Gacheri, 2022-CA-00415-COA (denying rehearing)

Wheeler v. Miss. Limestone Corp., 2022-WC-00534-COA (denying rehearing)

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Mississippi Supreme Court Decisions of October 19, 2023

The Mississippi Supreme Court handed down three opinions on Thursday. There is an appeal of a life imprisonment sentence, an appeal of a sanction in a workers’ comp case, and an appeal of an order compelling arbitration in a construction contract dispute.

Harris v. State, 2022-KA-01113-SCT (Criminal – Felony)
Affirming resentencing to life for depraved heart murder, holding that the sentence to life imprisonment was not mandatory but within the trial court’s discretion under the sentencing guidelines.
(9-0)

Howard Industries, Inc. v. Hayes, 2021-CT-00694-SCT (Civil – Workers’ Comp)
Affirming sanction against the employer’s attorney, holding that there was substantial evidence to support the Commission’s award of sanctions related to the presentation of an expert report that was prepared based on representations the attorney made to the expert.
(5-4: Beam dissented, joined by Coleman, Maxwell, and Chamberlin)

McInnis Electric Company v. Brasfield & Gorrie, LLC, 2021-CA-01115-SCT (Civil – Contract)
Affirming order compelling arbitration in a breach of contract suit filed by a subcontractor against the prime contractor, holding that the parties entered into an arbitration agreement and that the subcontractor’s claims were within the arbitration agreement.
(6-2: Kitchens dissented, joined by King; Randolph did not participate)

NOTE – The underlying dispute between the subcontractor and prime contractor is intertwined with the arrival of COVID-19 in Mississippi. Kitchens’s dissent asserted that the ability to perform a contract during the pandemic was not within the contemplated scope of the arbitration agreement that did not contain a force majeure clause.

Other Orders

Williams v. Mississippi District Council for Assemblies of God, 2021-CA-01007-SCT (rehearing denied)

Everett v. State, 2021-CT-01415-SCT (denying cert)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-00001-SCT (directing the disbursement of $137,218.03 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

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Mississippi Court of Appeals Decisions of August 15, 2023

The Mississippi Court of Appeals six opinions today. The court served up two direct criminal appeals, an easement by necessity case, a workers’ comp jurisdiction case, a MDES case, and a PCR case.

Ramsey v. State, 2022-CP-00103-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the circuit court did not err in dismissing it as successive.
(9-0: Smith did not participate)

Hobby v. Ott, 2021-CA-01305-COA (Civil – Real Property)
Reversing the chancellor’s order granting an easement by necessity, holding that the chancellor court erred in making this ruling without any supporting proof in the record regarding the costs of alternative routes of access, and rendering judgment denying the request.
(10-0)

Chatman v. State, 2022-KA-00386-COA (Criminal – Felony)
Affirming conviction of sexual battery of a minor, holding that there was sufficient evidence to support the conviction.
(10-0)

Pritchett v. MDES, 2022-CC-00808-COA (Civil – State Boards & Agencies)
Affirming a finding that an employee was not entitled to benefits, holding that there was substantial evidence to support the determination by MDES that the employee had voluntarily abandoned her job without finishing her assigned duties.
(6-4-0: No separate opinions – Wilson and Emfinger concurred in part and in the result; Westbrooks and McDonald concurred in result only)

Boyington v. State, 2022-KA-00601-COA (Criminal – Felony)
Affirming convictions of fleeing law enforcement and being a felon in possession of a firearm, holding that the trial court committed error in admitting a photograph of a swastika tattoo on the defendant’s body but that it was harmless error.
(7-3-0: No separate opinions – Wilson, Greenlee, and Smith concurred in part and in the result)

NOTE – Here is the Court’s summary of its analysis:

Wheeler v. Mississippi Limestone Corp., 2022-WC-00534-COA (Civil – Workers’ Comp)
Affirming the dismissal of a workers’ comp claim, holding that there was substantial evidence to support the Commission’s finding that it lacked subject matter jurisdiction because the claimant was neither hired nor regularly employed in Mississippi and that the employer did not assume liability for the injury by maintaining insurance under the MWCA.
(9-1-0: No separate opinions – McDonald concurred in the result only)

Other Orders

Clayton v. State, 2021-KA-00505-COA (denying rehearing)

Kirk v. Newton, 2021-CA-00684-COA (denying rehearing)

Smith v. State, 2021-KA-01003-COA (denying rehearing)

Dawson v. Burgs, 2021-CA-01038-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of May 2, 2023

The Mississippi Court of Appeal handed down eight opinions today. There are five direct criminal appeals, two interesting workers’ comp cases, and a contempt proceeding in a divorce case.

Ehrhardt v. State, 2021-KA-01143-COA (Criminal – Felony)
Affirming conviction of child exploitation, holding that the trial court did not err in denying a motion to suppress items found during the execution of a search warrant of the defendant’s home based on staleness and reliability or in denying a motion for mistrial after a State’s witness testified about the lack of a defense expert and gave curative direction and an instruction to the jury, and holding that the verdict was supported by sufficient evidence and not against the overwhelming evidence of it.
(10-0)

Hawthorne v. Mississippi State Hospital, 2022-WC-00040-COA (Civil – Workers’ Comp)
Affirming on direct appeal and cross-appeal, holding that the Commission’s finding that the claimant sustained a 40% loss of industrial use of his left lower extremity was supported by substantial credible evidence and that the Commission was within its discretion to strike the IME doctor’s amended report and order the Employer/Carrier to pay all costs of the doctor’s deposition after having ex parte contact with the doctor in violation of the IME order and did not err in denying a monetary sanction.
(10-0)

Amos v. State, 2022-KA-00171-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the admission of testimony of other was waived and/or harmless because the testimony was necessary to provide the jury with the complete story that led to the charges.
(10-0)

Liddell v. State, 2021-KA-00952-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not abuse its discretion in denying a motion for mistrial after the prosecutor made multiple public comments about the case to the media.
(10-0)

Wells v. State, 2022-KA-00157-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by limiting cross-examination of witnesses about whether someone else had a gun on the night in question, excluding evidence the defendant argued developed his theory of the case, or in denying a motion for mistrial on the grounds that one juror was confused through out the trial and hard of hearing.
(9-1-0: Westbrooks concurred in part and in the result without separate written opinion)

Manley v. Manley, 2021-CA-00700-COA (Civil – Domestic Relations)
Affirming the chancery court’s judgment in a contempt proceeding following a divorce, holding that the chancellor did not abuse his discretion in awarding payment of back-owed portions of retirement pay and did not err in finding that the father was not entitled to a credit towards his child support obligations for in-kind contributions and thus awarding back-owed child support.
(7-1-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in part and dissented in part, joined by Barnes.)

Parker v. Canton Manor and Mississippi Healthcare Association, 2022-WC-00206-COA (Civil – Workers’ Comp)
Reversing the MWCC’s decision dismissing the claimant’s two claims based on the two-year statute of limitations, holding that the “substantial evidence” standard did not apply because the Commission did not make any finds of fact based on evidence and that the Commission erred by granting a motion to dismiss because the allegations in the Petition on its face stated a claim and the Employer/Carrier presented no evidence to support its affirmative defense.
(8-2-0: Barnes and Westbrooks concurred in result only without separate written opinion)

Practice Point – The Court of Appeals applied the Miss. R . Civ. P. 12(b)(6) standard to the Employer/Carrier’s motion to dismiss. Here is the crux of the opinion (from paragraph 11):

Applewhite v. State, 2022-KA-00290-COA (Criminal – Felony)
Affirming conviction of capital murder and aggravated assault, both with firearm aggravation, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of it.
(8-2: Westbrooks dissented, joined by McDonald)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (granting appellate attorney’s fees and costs)

Boutwell v. Fairchild, 2021-CA-01046-COA (denying rehearing)

Fox v. State, 2022-KA-00988-COA (denying motion for bail pending appeal)

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Mississippi Court of Appeals Decisions of March 28, 2023

The Mississippi Court of Appeals handed down two decisions yesterday. One case is a putative derivative action against a property owners association board and the other is a worker’s comp case involving compensability and loss of wage-earning capacity.

Feola v. Marthouse, 2021-CA-01078-COA (Civil – Other)
Affirming in part and reversing in part the chancellor’s dismissal of a putative derivative action against the board of directors of a property owners association, agreeing with the chancellor that the amended complaint was not properly verified and properly dismissed but reversing the award of attorney’s fees because the suit was not frivolous.
(10-0)

Parker v. Mississippi Dept. of Health, 2022-WC-00552-COA (Civil – Workers’ Comp)
Affirming the MWCC, holding that there was substantial evidence supporting the Commission’s ruling that that the claimant did not sustain an compensable right-shoulder injury and that the claimant overcame the presumption of no loss of wage-earning capacity but only proved a 15% loss.
(8-2: Westbrooks dissented, joined by McDonald.)

Other Orders

Lowe v. State, 2019-KA-01621-COA (denying pro se “motion for leave to proceed with extension to file rehearing out of time as a result of excusable neglect of counsel”)

Watts v. Watts, 2021-CA-00321-COA (denying rehearing)

Burchett v. State, 2021-KA-00776-COA (denying rehearing)

MS Concrete v. Harris, 2022-WC-01095-COA (granting motion to dismiss appeal as interlocutory)

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Mississippi Court of Appeals Decisions of March 21, 2023

The Mississippi Court of Appeals handed down four opinions on Tuesday. It was an eclectic mix, including a workers’ comp case, a dysfunctional two-member LLC , a wrongful death case against a sheriff’s deputy, and an inmate’s request for removal of a rule violation report.

Holloway v. King, 2021-CP-01351-COA (Civil – State Boards and Agencies)
Affirming the circuit court’s decision that affirmed the denial of an inmate’s request for the removal of a rule violation report, holding that the circuit court did not have jurisdiction because the petitioner did not comply with the notice requirements of UCRCCC 5.04.
(6-4: McCarty dissented, joined by Westbrooks, McDonald, and Lawrence.)

Myrick v. UMMC, 2021-WC-01401-COA (Civil – Workers’ Comp)
Affirming MWCC order, holding that there was substantial, credible evidence to support the Commission’s finding that the Employer/Carrier overcame the presumption of permanent total disability and that the claimant’s post-injury back surgery was not related to her compensable back injury.
(7-3-0: Westbrooks, McDonald, and McCarty concurred in part and in the result without separate written opinion.)

Colson v. Warren, 2021-CA-01408-COA (Civil – Other)
Affirming on direct and cross appeal the chancery court’s decisions denying a claim to dissolve a two-member LLC, holding that the two members should cooperate in drafting and implementing an operating agreement and opening a bank account to deposit rental revenue checks payable to the LLC that had been piling up.
(9-1-0: Wilson concurred in part and in the result without separate written opinion.)

Renfroe v. Parker, 2021-CA-01048-COA (Civil – Wrongful Death)
Affirming summary judgment in favor of the law-enforcement defendants in a wrongful death suit after a suspect was killed by a deputy, holding:
1. Res judicata did not bar the plaintiff’s state law tort claims after the federal district court dismissed her 1983 claims with prejudice and her state law claims without prejudice.
2. The deputy and the sheriff were entitled to immunity on the official-capacity claims
3. Collateral estoppel barred the claims for IIED, assault, and battery because the federal district court found that the deputy’s use of force was “objectively reasonable.”
4. Even if collateral did not bar the IIED, assault, and battery claims, the plaintiff did not come forward with evidence to defeat summary judgment.
(7-2: McDonald concurred in part and dissented in part, joined by Westbrooks. Judge Emfinger did not participate.)

NOTE – According to testimony, the deputy shot the suspect after the suspect charged at the deputy, withstood a taser (pulling the electrodes out of his chest), had a physical altercation with the deputy, and then charged at the deputy a second time. The fact that the suspect did this while wearing pajama pants did not sway the courts at any level.

Other Orders

Green v. State, 2021-KA-01019-COA (rehearing denied)

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Mississippi Court of Appeals Decisions of November 8, 2022

The Mississippi Court of Appeals covered a lot of territory in six opinions handed down today. They areas covered include divorce, criminal issues, MTCA police-protection immunity, third-party liability for work injuries, criminal, and one PCR case for good measure.

King v. State, 2021-CA-01145-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that there was no merit to the claim that his guilty plea was not voluntary or to his ineffective assistance claim.
(9-0: Judge Emfinger did not participate)

Owens v. State, 2021-KA-01256-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm after receiving a Lindsey brief, receiving no pro se brief, and reviewing the record and concluding no issue warranted reversal.
(9-0: Judge Smith did not participate)

Blount v. State, 2021-KA-00204-COA (Criminal – Felony)
Affirming conviction of possession of meth after a jury trial in absentia, holding that the trial court did not abuse its discretion in denying the defendant’s request for a continuance after concluding that the defendant waived his right to be present at trial.
(7-1-2: Judge Wilson concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion; Judge McCarty dissented, joined in part by Judge McDonald.)

Practice Point – Don’t possess meth and then miss your trial date. As Bob Dylan reminds us, “To live outside the law, you just be honest.”

Alves-Hunter v. Hunter, 2021-CA-00644-COA (Civil – Domestic Relations)
Affirming decisions in a divorce proceeding, holding that the chancellor did not commit reversible error in awarding the father standard visitation with their child, dividing the martial estate, or denial of attorneys fees after a contempt finding.
(10-0)

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (Civil – State Boards and Agencies/MTCA)
Affirming judgment for the defendants in a personal injury case brought under the MTCA stemming from a police chase, holding that the circuit court did not err in finding that the police officer did not act with reckless disregard and that the City was entitled to police-protection immunity.

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (Civil – Workers’ Comp)
Reversing summary judgment in favor of a defendant in a third-party lawsuit arising from a workers’ comp injury, holding that the defendant at issue was not an “up the line” contractor but instead was the owner of the project and was therefore a third-party not entitled to exclusive remedy immunity.
(6-4: Judge Carlton dissented, joined by Judge Greenlee, Judge McCarty, and Judge Smith.)

Practice Point – This is a fact-intensive opinion. It does not appear to disturb the general rule that “up the line” contractors are entitled to MWCA immunity as long as they are true contractors.

Other Orders

Moffett v. State, 2021-KA-00622-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of October 11, 2022

I did not post summaries last week because was out of town all week. I plan to do a post summarizing last week’s decisions at some point, but today is not that day because the Court of Appeals just handed down nine more opinions.

Today was a big day for Rule 4 and for workers’ comp, with two decisions for each of those subject areas. One of the workers’ comp decisions has a significant amount of analysis of the issue of whether the claimant overcame the presumption of no loss of wage-earning capacity. The other workers’ comp decision provides some clarity (and teeth) to the affirmative defense of intoxication. Additionally, we learned today that you should not white-out the defendant’s name on a summons after it is issued, write the name of the defendant to be served over the white-out, and then serve that altered summons on your defendant. There is also a divorce case dealing with child support, several criminal cases, and a lone PCR case.

Carnley v. State, 2021-KA-00438-COA (Criminal – Felony)
Affirming conviction of rape, declining to reverse based on the exclusion of the victim’s prior inconsistent statement because no proffer was made and holding there was no error in the admission of expert testimony, that the defendant’s trial counsel was not ineffective, that the jury was properly instructed to continue its deliberation in lieu of a Sharplin instruction, and that the trial court did not commit cumulative error.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Wharton v. State, 2021-CA-00136-COA (Civil – Other/Civil Procedure)
Reversing a default judgment on a civil asset forfeiture petition, holding that the State failed to “strictly” comply with the Rule 4 requirements for service by publication, that the respondent did not waive the defense of insufficiency of service of process by failing to plead it in his answer because the answer was filed after the entry of default, and that the case should be remanded to give the State an opportunity to show good cause for failing to serve process before the statute of limitations expired.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion and Judge Emfinger did not participate.)

NOTE 1– There is a lot of civil and appellate procedure in this opinion (Miss. R. Civ. P. 4, 55; Miss. R. App. P. 2, 31). The appellate procedure ruling was interesting because the appellant missed his briefing deadline, but the Court of Appeals held that he should have been afforded 14 days to correct this “deficiency” and since he filed two days late he was within that window. This is interesting, but not a maneuver I plan to attempt.

Note 2 – I also want to point out this holding that although it is a fact-bound holding, these are facts one could find oneself bound up in.

Howard Industries v. Hayes, 2021-WC-00694-COA (Civil – Workers’ Comp)
Affirming the MWCC on direct appeal and cross appeal, holding that there was substantial evidence to support the Commission’s award of sanctions against the Employer’s counsel for attempting to mislead the Commission, the Commission’s finding that the claimant had overcome the presumption of no loss of wage-earning capacity and awarding permanent disability benefits for her 2007 injury, and the Commission’s award of 38% industrial loss of use of her right upper extremity for her 2015 injury.
(5-4: Judge Wilson concurred in part and dissented in part (on the sanction issue), joined by Judge Greenlee, Judge McCarty, and Judge Smith. Judge Emfinger did not participate.)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that the claimant was not entitled to benefits based upon the affirmative defense of intoxication, holding that the Employer’s payment of benefits did not estop the Employer from asserting the intoxication defense that was pleaded in the answer and that the very presence of marijuana in the claimant’s system raised the presumption of intoxication.
(10-0)

PRACTICE POINT – This case seems to answer a question that has lingered since the MWCA was amended to add the intoxication defense about what the effect of a positive drug test that does not give any indication of the degree of intoxication. In this case, the Court of Appeals decisively that any amount of intoxication triggers the presumption. A claimant can still seek to overcome that presumption, but based on the Meek decision a claimant cannot overcome the presumption by pointing to a lack of proof of the level of marijuana in the claimant’s system.

Ponder v. Ponder, 2020-CA-01196-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor did not err or abuse his discretion in awarding child support retroactive to a date prior to the filing of the petition for modification but holding that there was no legal basis for an award of attorney’s fees against the father for failing to comply with an agreed order.
(9-1-0: Judge McDonald concurred in part and in the result without separate written opinion.)

Villareal v. State, 2021-CP-00440-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the defendant’s sentence was not illegal.
(9-0: Judge Lawrence did not participate.)

Carruthers v. State, 2021-KA-00654-COA (Criminal – Felony)
Affirming conviction of meth trafficking as subsequent offender in possession of a firearm near a church and possession of firearm by felon, holding that the defendant did not receive ineffective assistance of counsel for alleged failures to object at various points in the trial or for alleged failure to investigate or for alleged failure to stipulate to a prior felony to keep evidence of the prior felony.
(7-2-0: Judge McCarty concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion.)

Arrington v. Anderson, 2021-CA-00233-COA (Civil – Personal Injury)
Affirming dismissal of two identical negligence lawsuits, holding that a summons that was altered after issuance to change the name of the party to be summonsed to the defendant’s name and then served on the defendant was not valid service of process, that since process was not served the statute of limitations had expired the first lawsuit, and that the second lawsuit was not a “refiling” of the first since it was filed while the first suit was still pending.
(8-2-0: Judge Wilson and Judge McDonald concurred in result only without separate written opinion.)

Daniels v. State, 2021-KA-01067-COA (Criminal – Felony)
Affirming conviction of two counts of armed robbery, two counts and aggravated assault, one count of house burglary, and one count of grand larceny, holding that the circuit court did not err in telling the jury panel that the defendant was charged as a habitual offender or in denying the defendant’s motion for a mistrial and holding that there was no abuse of discretion in admitting evidence about the defendant’s apprehension, arrest, and felony charges that immediately followed the activities for which he was convicted in this trial.
(8-2-0: Judge Wilson and Judge Emfinger concurred in the result without separate written opinion.)

Other Orders

Short v. State, 2021-KA-00499-COA (denying rehearing)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (denying rehearing)
Watkins v. State, 2021-CP-01301-COA (granting appellant’s pro se motion for leave to file an out-of-time brief)
Young v. State, 2022-CP-00141-COA (denying State’s motion to dismiss appeal)

Hand Down List