Decisions – Ct. App. – Feb. 11, 2014

Snowden v. State  – Snowden was convicted of aggravated assault after shooting at the car of Smith with one bullet hitting Smith in the arm.   Snowden admitted having fired the shots.  He claimed that he was trying to scare off some people pursuing his stepson.  The Ct. of Appeals reversed and remanded for sentencing on simple assault based on the indictment’s being defective. The indictment charged Snowden with having violated MCA Sect. 97-3-7(2) by  willfully, unlawfully and feloniously casuing bodily injury knowingly or recklessly by shooting Smith with a rifle being a means to prodice death or serious injury. Subpart (2) of the statute at that time required the indictment to specify  serious bodily injury. (The statute was amended in 2012).  Since the indictment proceeded under a single theory (that listed under subpart (2)), the failure to specify serious bodily injury was defective.  Under the direct remand rule, where the jury’s verdict implicitly finds the defendant guilty of a lesser included, the court can remand for sentencing on that lesser included.  Here the lesser included was simple assault. 

Holt v. Mississippi State Board of Dental Examiners –  The MSBDS initiated disciplinary proceedings against Dr. Holt for practicing outside his field.  Dr. Holt and the MSBDE entered into an agreement where Holt’s license would be suspended for five years but all but six weeks (divided into two three-week periods) of that would be suspended.  He would also be subject to unannounced visits for five years.  During the first three weeks, he perfoprmed surgery on one of his employees and consulted with his employees every day on the treatmemt of that day’s patients. . During a progress hearing conducted by the Board, Dr. Holt stated that he had not practiced dentistry during this time.  When Board investgators visited the office on another occasion, Dr. Holt  did not cooperate.  A complaint was lodged by the investigator and after a hearing, Dr. Holt was found to have breached the agreement 11 times.  The Board rescinded the stay which resulted in Dr. Holt’s license being suspended  until Feb. 2016. On appeal, the chancellor sustained all but pone of the Board’s findings but also found that the Board had violated Dr. Holt’s due process rights by failing to turn over dicovery. Dr. Holt appealed again.  The Ct. of Appeals reversed.  In its opinion it held that Dr. Holt did not have a right to counsel during an informal non-adjudicary proceeding; that the suspension did not amount to an excessive fine; etc.  

Doss v. Dixon – this suit was brought by 17 customers of a Pizza Hut in Greenwood against three Pizza Hut employees. The Plaintiffs claimed to have fallen ill after eating there.  The trial court threw it out based on res judicata.   Initially there were several lawsuits filed against the owner of Pizza Hut and the manager.  The cases were removed to federal court and the defendants were eventually granted summary judgment based on a failure of proof of proximate cause. After losing in the Fifth Circuit, plaintiffs sued the employees. The trial court granted summary judgment to the defendants based on res judicata and, on appeal, the Ct. of Appeals affirms. 

O’Brien v. O’Brien – the parties were granted an ID divorce. The chancellor ordered temporary payments and, in the final judgment, dound Russell guilty of contempt for being $7,000 in arrears and ordered him to make up the arrearage by paying $200 a month. (Apparently,  Russell had been unemployed for a short time.)  The Ct. of Appeals affirmed the contempt ruling noting that the chancellor probably did not find him in crimnal contempt   because of his employment status.  The other issue imvolved the ordering of $900.00 per month in child support for the parties’ one child based on Russell’s earning $68,000 a year.  M.C.A. Sect. 43–19-101(4) requires that if the chancellor calculates support on an income more than $50,000, he must state in writing why or why not the support guidelines (of 14%) are reasonable. Teri admitted there were no written findings but argued that Russell was less than candid about his assets.  Here the chancellor departed upward since 14% of Russell’s income would be $793.00.  The Ct. held that the case would be remanded so that t he chancellor could make written findings.  Russell also argued that the chancellor unjustly considered fault in awarding alimony.  The Ct. held that this was permissible to do.  Finally, Russell challenged the division of marital property and the Ct. of Appeals remanded on this issue as well since the calculation of child support was based on Russell’s making $68,000 a year while the property was divided premised on his making $156,000 a year.

Matthews v. State – Matthews was convicted of sexual battery of a 16-year-old.  On appeal he raised sufficiency of the evidence.  He also claims that the trial court erred in not giving a spoilation instruction (that the evidence would have been favorable to Matthews) when the state could not produce the girl’s clothing.  The Court found no merit to the first issue and the second was waived since trial counsel never raised the issue below.  

Coggins v. Coggins – William appeals the chancellors award of (1) alimony and (2) requring William to designate Alicia as a one-half beneficiary of his $350,000 life insurance. The Ct. of Appeals reversed and remanded on the second.  The point of the life insurance is to recompense Alicia if William were to get behind on alimony and then died before making it up.  In this case, the award amounted to thirty years’ worth of alimony which was excessive.

Also:

Martin v. Stevenson – change of custody affiirmed.

Rogowski v. State – defendant convicted of disorderly conduct after refusing to show license at a road stop. Affirmed. Court explains why the road block here was not an illegal seizure.

James v. State – convictions of armed robbery, manslaughter, and aggravated assault affirmed.

Smiley v. Hercules Concrete Pumping Service, Inc. – denial of workers compensation benefits affirmed.

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