Decisions – Ct. of App. – March 11, 2014

Lott v. Alexander – this is an appeal from an order granting grandparents’ visitation.  In this case, the parties seeking visitation were the great grandparents.  The mother of the children, Julie Lott (who was the  granddaughter of the Alexanders) opposed visitation arguing that as great grandparents, they had no standing.  The chancellor disagreed and awarded the Alexanders visitation.  On appeal, the Court of Appeals reversed finding that grandparent visitation is a creature of statute and the statute applied only to grandparents and not great grandparents. 

Keys v. Keyes –   The parties were granted an ID divorce.  The mother appeals that chancellor’s order granting joint legal and physical custody of the two children.  She argues that the chancellor did not make a finding whether the parties could cooperate in joint custody. M.C.A. Sect. 93-5-24(2) allows a chancellor to award joint custody upon application of both parties.  Where both parties agree to have the chancellor decide certain issues, this qualifies as an application by both parties under the statute.  While the mother argues that there was evidence the parties could not cooperate, the Ct. of Appeals finds that the chancellor was in the best position to make that determination and that determination was supported by facts on the record. 

Beal v. State –  Beal was convicted of the sale of two rocks of cocaine (for $30.00)  to a confidential informant  and sentenced as an habitual to 60 years without parole and a $2 million fine.  Beal appealed arguing 1) that the failure to enter into evidence the backup audio tape was plain error.  The Ct. of APpeals refuses to address this issue because Beal only cites cases on plain error and not with regard to the substantive issue.   Beal argues that the trial court erred in not granting an instruction that the jury should weigh the testimony of the confidential informer with care and caution.  This issue is controlled by Webber v. State, 108 So.3d 930 (MIss. 2013)  in which the Court held that such instructions are for accomplices.  They are not necessary where the details of law enforcement’s arrangements with the CI are fully revealed and the CI is subject to cross examination. Finally, Beal argued that it violated MRE 404(b) to introduce evidence of Beal’s subsequent bribery conviction.  At trial there was testimony that after Beal was arrested, he offered an officer $10,000 to make the charges go away. The trial court allowed it in as evidence of consciousness of guilt and, furthermore, that its probative value was not outweighed by the danger of unfair prejudice. 

Garson v. Circus Circus –  Karen Garson and her husband rented a room at the Gold Strike Casino.  SHe sued claiming she injured her ankle when it hit the bed frame which was protruding but covered by the bedspread.  The trial court granted summary judgment for the casino and the Garsons appealed. The Ct. of App. affirmed  finding that the Garsons failed to prove that the bed was a dangerous condition.  Assuming it was a dangerous condition, they failed to prove that the casino  caused he condition or had actual or constructive knowledge of the condition. 

Carthan v. Patterson –  The town of Tchula determined that a warehouse owned by Carthan was a public nuisance and voted to demolish it. Carthan argued that this was an unconstitutional taking.  Tchula moved to dismiss the appeal claiming that Carthan’s letter was not sufficient to qualify as a bill of exceptions required for an appeal and the trial court dismissed the case finding that it was without jurisdiction.  The Ct. of Appeals affirmed finding that the letter was insufficient since it did not embody the facts and proceedings below.  More importantly, instead of pursuing an appeal, he initiated his own lawsuit against Tchula well after the time for appeal had run.  The instant appeal is from the grant of summary judgment in Carthan’s lawsuit.  The only avenue for Carthan to oppose the town’s action was via a bill of exceptions and this he failed to do.  

Fulgham v. AAA Transportation – Fulgham sued AAA after she was involved in an auto  accident with an 18 wheeler being driven but an employee of  AAA Transportation.  AAA was granted summary judgment on the grounds that Fulgham never named the driver of the 18 wheeler and the SOL had run so she could not name him.  Since AAA was liable only in respondeat superior, the absence of the driver meant the case against AAA must be dismissed. The Ct. of Appeals reversed holding, as it has done before, that the employee is not a necessary party where the suit is against the employer under the doctrine of respondeat superior.  

Jackson v. Miss. Dep’t of Employment Security – Jackson was a substitute teacher for JPS.  WHen she moved to Texas, she applied for unemployment benefits.  When MDES discovered she had moved to Texas, MDES disqualified her from receiving benefits. The Ct. of Appeals affirms. 

One thought on “Decisions – Ct. of App. – March 11, 2014

  1. Classic “this is a COA case” cases. No, a great-grandparent is not a grandparent. No, you cannot ask the chancellor to decide custody for you and then complain that the chancellor decided custody for you. No, filing a letter that fails to name a single error is not a “bill of exceptions.” (Tho admittedly, only 8 of 10 judges got that one right.)

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