Decisions – Miss.S.Ct. – March 6, 2014

Chandler v. State – Chandler pleaded guilty to the sale of cocaine.  Aggrieved that MDOC had miscalculated his parole eligibility, he filed a petition in Sunflower County (presumably because he is incarcerated at Parchman in Sunflower County).  The circuit court denied relief and the Miss.Ct. of Appeals reversed.  The Miss.S.Ct. granted cert. and reversed because Chandler was sentenced in Scott County and should have filed his petition there.  The reversal is without prejudice to Chandler’s ability to file in Scott County. 

Chaupette v. State –  Chaupette was convicted of fondling his four-year-old great niece.  On appeal he raises three issues: that two of the fact witnesses gave expert testimony, that the trial court improperly allowed testimony  on the victim’s truthfulness, and  erred in admitting cumulative, hearsay testimony from six witnesses under the tender years exception.   Both a pediatrician and a psychotherapist testified for the state and gave expert testimony even though the record is clear that neither was tendered as an expert.  Defense counsel objected at trial.  The Miss.S.Ct. held that any error was harmless.  The testimony regarding truthfulness was adduced after the defense asked certain witnesses whether it was true or not that children are susceptible to suggestion.  When the witness admitted that children are susceptible to suggestion, the state then asked the witness whether she felt that was the case with the child here.  The Court held that there was no error given the questions by the defense although, overall, questions regarding a witnesses’ credibility are not highly regarded. So long as the witness did not opine whether the child was telling the truth, the opinion as to credibility was not error where the defense attacked credibility.  As to the last issue, the defense argued that it was error to allow six witnesses to repeat the child’s statements under the “tender years exception”.  The Court held that this was not error because the witnesses were allowed to discuss the child’s statements only to explain how they became involved in the case. 

Newton Co. and Rodney Bounds v. State of Miss. for the Use and Benefit of George Dukes and Union Insurance Co. – George Dukes and Joe Jordan  obtained judgments against their employers Roy and Kevin White for Workmens’ Comp. claims. The Whites appealed and posted supersedeas bonds which their wives signed as sureties.  The Circuit Clerk, Rodney Bounds, approved the bonds without investigating the Whites’ ability to satisfy the bonds.  When the Whites lost and filed for bankruptcy protection, Dukes and Jordan  sued Union Ins. Co. as the surety on the bond of Newton Co. Circuit Clerk Rodney Bounds.   Union cross-claimed against Rodney Bounds for indemnity. The trial court dismissed the case against Bounds but found Union liable to Dukes and Jordan.   It also found Bounds liable to Union for indemnity.   Union appealed and the Court of Appeals reversed finding that Union was not liable to Dukes and Jordan and that Bounds was not liable to Union. The Miss. S.Ct. found that Bounds had no liability to Dukes and Jordan and, thus, Union had no liability to Dukes and Jordan.  However, this does not mean that Bounds was relieved of his contractual liability to indemnify Union for attorneys fees and costs expended in defending the lawsuit. The Court of Appeals erred to the extent that it found that Bounds was not liable for attorneys fees and costs. 

Virk dba Gas Plus v. the Miss. Dept. of Revenue – Virk appealed an increased in his tax liability to the Dept. of Revenue’s Board of Review.  Virk failed to appear at the hearing before the Board of Review and his appeal to the Board was dismissed as was his appeal to the Chancery Court.  M.C.A. Sect. 27-77-5  states that an appeal may be involuntarily withdrawn if the taxpayer fails ” to appear at a scheduled hearing, fail[s] to make a written submission or electronic transmission in lieu of attendance at a hearing by the date specified or by the hearing date, if no date was specified, or by any other act or failure that the board of review or the Board of Tax Appeals determines represents a failure on the part of the taxpayer to prosecute his appeal.  . . . . If the withdrawal of appeal is involuntary, the administrative appeal body from whom the appeal is being withdrawn shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal. Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether a tax assessment, a denial of refund claim, a denial of waiver of tax penalty, or an order of the board of review, shall become final and not subject to further review by the board of review, the Board of Tax Appeals or a court.”  Virk argues  that this “does not expressly bar further review of denial of a continuance and resultant involuntary withdrawal on appeal.”  The Court finds nothing ambiguous in the statutory language and affirms the dismissal. 

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