Tag: Zoning Law

Mississippi Court of Appeals Decisions of March 19, 2024

The Mississippi Court of Appeals handed down eight opinions today. There was a med mal case dismissed on statute of limitations grounds, an IIED verdict, an interpleader by a bank to determine the appropriate beneficiary-on-death of a CD, a zoning decision, a felony conviction, and a few PCR cases.

Jordan v. States, 2022-CP-00874-COA, consolidated with 2022-CP-00877-COA and 2023-CP-00072-COA (Civil – PCR)
Affirming denials of three PCR motions, holding that all three motions were barred as subsequent PCR motions and that no exception to the bar was supported.
(10-0)

Jones v. State, 2022-KA-01117-COA (Criminal – Felony)
Affirming conviction of two counts of child exploitation after the “underage female” the defendant attempted to meet up with turned out to be an undercover officer, holding that the entrapment jury instruction was properly rejected and that the convictions were not against he overwhelming weight of evidence.
(10-0)

Rogers v. NewSouth NeuroSpine LLC, 2022-CP-01036-COA (Civil – Med Mal)
Affirming the circuit court’s decision granting the defendant’s motion to dismiss based on the statute of limitations and denying post-judgment motions, holding that the circuit court did not abuse its discretion denying the pro se plaintiff’s Rule 60 motion and also denying the defendants’ motion for sanctions, damages, and fees.
(10-0)

Gray v. Johnson, 2023-CA-00339-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision in an interpleader initiated by a bank over the proper “pay-on-death” beneficiary of a CD, holding that the designation was latently ambiguous but that extrinsic evidence supported the chancellor’s decision whcih was not an abuse of discretion and was not wrong or clearly erroneous.
(6-4-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion; Greenlee concurred in result only without separate written opinion)

Jackson County, Mississippi, v. Marcellus, 2023-CA-00111-COA (Civil – State Boards & Agencies)
Reversing the circuit court’s decision that had reversed the decision of the Board of Supervisors denying a request to reclassify property from residential to commercial, holding that the Board’s decision was not arbitrary and capricious that the owner had not proved a change in character and a public need by clear and convincing evidence.
(9-0: Lawrence did not participate)

Bain v. State, 2023-CP-00206-COA (Civil – PCR)
Reversing dismissal of PCR motion for lack of jurisdiction, holding that the petitioner did not need to obtain permission from the Supreme Court to file his petition.
(9-1-0: Emfinger concurred in part and in the result without separate written opinion)

Green v. State, 2023-CP-00448-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the circuit court did not err in finding that the motion was barred as successive and that none of the exceptions applied, and that they lacked merit.
(8-2-0: McCarty and Emfinger concurred in part and in the result without separate written opinion.)

Weaver v. Ross, 2022-CA-00426-COA (Civil – Torts)
Affirming a judgment in favor of a car restorer against a man who initiated litigation by suing for alleged negligent restoration after a jury trial, holding that the trial court did not err in excluding medical records related to the owner’s blood pressure for lack of authentication and an invoice on allegedly comparative restoration, that the verdict on IIED was supported by sufficient evidence and not against the overwhelming weight of it, and that the trial court did not abuse its discretion in awarding attorney’s fees.
(6-4-0: McCarty specially concurred, joined by Greenlee, Westbrooks, McDonald, Lawrence, and Smith; Wilson concurred in part and in the result, joined by Lawrence, McCarty, and Emfinger and joined in part by Greenlee, Westbrooks, McDonald, and Smith.)

NOTE – McCarty’s special concurrence has precedential effect. You should read it for its discussion and clarification of the fact that claims for IIED cannot stem from the distress caused solely by litigation.

Wilson’s concurrence was one full vote short of precedential effect, but was joined in part by four additional judges. Wilson joined Parts I and II of the majority opinion, but parted ways over the analysis of the attorney’s fees issue. Wilson agreed the judgment should be affirmed because the challenge to the award of attorney’s fees was procedurally barred, but would have reversed if it was not barred.

PRACTICE POINT – Wilson’s concurrence contains a good reminder of the importance of reviewing the record on appeal for completeness. Don’t assume the circuit clerk included everything you designated.

Other Orders

DeJohnette v. State, 2022-KA-00249-COA (denying rehearing)

Gilmer v. State, 2022-KM-00257-COA (denying rehearing)

Hutson v. Hutson, 2022-CA-00569-COA (denying rehearing)

Daly v. Raines, 2022-CA-00600-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of March 5, 2024

I’m back. Again. I would like to think I will go back and summarize the last few weeks that I have missed but that is probably water under the bridge at this point. Pressing forward, the Mississippi Court of Appeals handed down seven opinions today. These decisions cover custody, felonies, personal injury, unemployment, and zoning. Notably, two criminal convictions were reversed.

Patrick v. Patrick, 2021-CA-00891-COA (Civil – Custody)
Affirming the chancery court’s denial of the mother’s petition for contempt and modification and granting the father’s motion for modification, holding that the issue of custody was clearly before the chancellor who properly determined that there was a material change in circumstances that adversely affected the children, conducted a proper Albright analysis, and was within his discretion to order a change in legal and physical custody.
(8-1-1: McCarty concurred in part and in the result and McDonald concurred in part and dissented in part. Neither wrote.)

Allen v. State, 2022-KA-00419-COA (Criminal – Felony)
Reversing convictions six counts of statutory rape, holding that the jury was not properly instructed as to the State’s burden of proof and remanding for a new trial.
(9-1-0: McDonald concurred in result only without writing.)

Practice Point: The erroneous instruction was submitted by the defense, but the Court noted that the “invited-error doctrine” did not apply where the jury was not properly instructed on the elements of the crime. Here is the Court’s summary of the issues with the jury instructions:

Fletcher v. State, 2022-KA-00868-COA (Criminal – Felony)
Affirming conviction of capital murder and sentence as habitual offender, holding that the trial court did not err when it failed to suppress the defendant’s statement to law enforcement officials.
(10-0)

The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (Civil – Other)
Affirming the circuit court’s decision denying an ordinance variance to repair a wall/fence that enclosed the petitioner’s property, holding that the petitioner did not waive its challenge to the city’s code interpretation but that the circuit court’s interpretation of the code provisions at issue were not erroneous.
(10-0)

Carter v. C&S Canopy, Inc., 2022-CA-00730-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a driver and his employer in an auto-negligence case, holding that there was no evidence to support the plaintiff’s claim that the driver negligently continued to drive a “sluggish” truck on the interstate, that the defendants were negligent in their efforts to get the truck towed, that the location of reflective triangles was the proximate cause of the crash, that the defendant could have safely moved the disabled truck anywhere other than where he did, that the driver should have registered as a for-hire carrier, or that the employer negligently failed to train the driver.

Appellate Math Warning: None of us signed up for this.

Marshall v. State, 2022-KA-00541-COA (Criminal – Felony)
Reversing conviction of first-degree murder, holding that the circuit court erred in denying the defense’s peremptory strikes of three jurors, holding that the defense provided valid, race-neutral reasons for the strikes.
(10-0)

Cain v. M.D.E.S., 2023-CC-00188-COA (Civil – State Boards & Agencies)
Affirming denial of claim for unemployment benefits, holding that the circuit court properly dismissed the claimant’s appeal of denial as untimely.
(10-0)

Other Orders

Walker v. State, 2022-KA-00482-COA (denying rehearing)

Gregory Meridian Acquisition, LLC v. McFarland, 2022-CA-00580-COA (denying rehearing)

Fox v. Fox, 2022-CA-00918-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of July 25, 2023

The Mississippi Court of Appeals handed down five opinions today covering diverse subject matter. There is a zoning exception case, a custody case, a personal injury case considering a grant of summary judgment in a slip-and-fall case, a marital property division case analyzing whether a PSA was ambiguous, and a PCR case with a concurrence discussing Howell/Rowland I/Rowland II.

Keenum v. City of Moss Point, 2021-CA-01044-COA (Civil – Other/Zoning)
Reversing the circuit court’s decision that affirmed the mayor’s decision to approve a special exception to a zoning ordinance, holding that the decision to allow a for-profit development in a residential-zoned area under an exception for “semi-public recreational area” (which was not defined in the ordinance) was reversible error because that reading would render the prohibition against “commercial use” in the ordinance meaningless.
(8-1-0: McDonald concurred in part and in the result without separate written opinion; Lawrence did not participate.)

D.W.K. v. Youth Court of Lincoln County, 2019-CP-00451-COA; 2020-CP-01307-COA (Civil – Custody)
Affirming the youth court’s denial of motions to consider new evidence two years after adjudication of abuse and neglect and placement of five minor children with their maternal aunt, holding that the youth court had jurisdiction; service of process was proper; that the youth court’s decision was not manifestly wrong or erroneous, was based on substantial evidence, and favored the best interest of the children; and that the record on appeal was sufficient.
(10-0)

Babin v. Wendelta, Inc., 2022-CA-00341-COA (Civil – Personal Injury)
Reversing the circuit court’s grant of summary judgment for a fast food restaurant in a slip-and-fall case, holding that “the record contained ample proof” of a dangerous condition where multiple witnesses including restaurant employees testified that the mat was slippery on the date of the fall and that the vestibule where the mat was located held condensation.
(9-1-0: Lawrence concurred in result only WOSWO.)

Practice Point – I have noticed ANSI standards appearing more frequently in my practice. I suspect these two sentences will make their way into more than one brief:

Blanchard v. Blanchard, 2022-CA-00356-COA (Civil – Domestic Relations)
Reversing the chancery court’s ruling based on parol evidence after finding that a Property Settlement Agreement was ambiguous, holding that the PSA was unambiguous and that it entitled the ex-husband to half of the net proceeds of the sale of the former marital home even though the ex-wife had refinanced the home.
(10-0)

Roberson v. State, 2021-CA-01182-COA (Civil – PCR)
Affirming order granting in part and denying in part a PCR motion, holding that the petitioner was not entitled to an exception from the statutory bars and that, in any event, there was no merit to his claim that his plea was involuntary or that his counsel was ineffective.
(6-4-0: Westbrooks, McDonald, and McCarty concurred in part and in the result WOSWO; Wilson concurred in part and in the result, joined by McDonald and McCarty and joined in part by Westbrooks.)

Note – Judge Wilson’s concurrence discussed the state of the “fundamental-rights exception” in light of the Mississippi Supreme Court in Howell overruling Rowland I and Rowland II, and noted that the Supreme Court had not squarely addressed whether the successive motions bar is substantive or procedural:

Other Orders

Buchanan v. State, 2021-CP-01069-COA (denying rehearing)

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