Decisions – Ct. of App. – March 18, 2014

In the Matter of the Guardianship of Frank Lewis – issue of conflict in appointment of guardian – Nelson filed a petition to appoint a conservator for Frank Lewis. Lewis hired Constance Slaughter-Harvey as his lawyer. At the hearing, the court established a guardianship and appointed Slaughter-Harvey as the guardian. Lewis appealed raising issues including that the requirement for two physician’s certificates was not met and that Slaughter-Harvey acted improperly in accepting the court’s appointment as his guardian when she was hired to prevent establishment of same.   The Ct of App. dismissed for lack of jurisdiction finding that the interim judgment finding that the guardianship had been necessary was not a final, appealable order. 

Brown v. State – Brown and his girlfriend Jamise Floyd were arrested for possession of 4.7 grams of cocaine after the cocaine was found in the console of the car they were in.  Brown was found guilty and sentenced as an habitual to 32 years without parole.  His one assignment on appeal was that the court erred in not granting a JNOV.  The search of their vehicle came about while they were stopped at a gas station and someone allegedly called the police to report a man and woman acting suspiciously.   Brown was in the vehicle when the officers arrived.  The officers fetched Floyd from the store and arrested her for public drunk.  Brown was arrested when it was discovered there was an outstanding warrant.  One of the cops testified that he performed an inventory search of the car prior to having it towed. On appeal Brown argued that there was insufficient evidence to demonstrate that the cocaine belonged to him.  The Ct. of APp. found that there was sufficient evidence of constructive possession.  When the cops arrived, Brown was acting nervous and continued to try to get back into the vehicle claiming he wanted a cigarette.  Moreover, Brown owned the vehicle and testified that he had opened the console to retrieve a compact disc  prior to noticing the officers.

In the matter of the Estate of Langston –  This is a second appeal in an undue influence case. After Patricia Langston died, her estate challenged certain inter vivos gifts she had given her husband Mansfield claiming that they were the result of undue influence.  At the time of Patricia’s death, the couple had been married eleven years.  They had no children together but both had children via previous marriages.  When Patricia died in 2005, she left her estate in equal shares to her children.  The will noted that Mansfield had his own estate. In 2002, she had executed a warranty deed conveying a home she owned to herself and Mansfield with joint rights of survivorship.  This became their marital home. She also had a $200,000 cd that she made Mansfield a joint owner.  When Patricia died, her mother, the executor, moved to set aside the gifts of the home and cd. The chancellor found undue influence without sufficient evidence to overcome it and set aside the gifts.  Mansfield appealed and the Miss. Ct. of App. reversed in In re Estate of Langston, 57 So.3d 657 (Miss. App.  2011), and rendered upholding the gifts.  The Estate filed a petition for writ of cert. which was granted and the Miss.S.Ct. also reversed holding  that a confidential relationship between spouses does not automatically give rise to undue influence.  Estate of Langston, 57 So.3d 618 (MIss. 2011).  But the Miss. S. Ct. remanded to allow the  Estate to prove, if it could, undue influence.  This time the chancellor found for Mansfield and the Estate appealed.  The Ct. of Appeals upheld the chancellor’s finding of no undue influence. 

In the Interest of N.B. and K.B. – this was a contested adoption between the paternal grandparents (the Beards) and the paternal great grandparents (the Berrymans)  after the biological parents gave their twins up for adoption.  The court allowed the Berrymans to adopt and the Beards appealed.  The GAL found that the Albright factors favored neither couple (both were acceptable) but that the Beards were younger.  The chancellor found that the Albright factors favored the Berrymans.   The Ct. of Appeals upheld the chancellor’s decision finding that she did not abuse her discretion. 

Lott v. State –  Lott was convicted of murder in 1988 and sentenced to life.  He was paroled in 2000 but arrested in 2010 for attempted sexual battery.  The charges were dropped  but Lott’s parole was revoked in October 2011.  Lott filed a motion for post conviction relief in  the Greene Co. Circuit Court – presumably because that is the county in which he is incarcerated.  The Ct. of Appeals holds that it lacks jurisdiction because Lott  should have filed in the Miss.S. Ct. to ask for permission to proceed given that his case went to trial and was appealed.  See M.C.A. Sect. 99-39-7. Furthermore, had it been proper to proceed in the trial court, the proper court was that of Marion County  since that was where he was originally convicted

In the Interest of JCM, a minor – 12-year-old JCM was suspended from school after he was alleged to have touched the breast of a female student.  He was also charged with disorderly conduct and taken to the Rankin Co. detention Center. Two days later he was placed on house arrest. After an adjudicatory hearing, the court found JCM to be a delinquent and sentenced him to 90 days with probation thereafter for a length of time contingent on how he behaves.  After the hearing of an emergency petition, the court released JCM to the custody of his parents. JCM appeals arguing that the   court failed to make specific findings of fact as required by law.  Specific findings of fact are required by MCA Sect. 43-21-605(1)(1) where the child is a first time offender and sentenced to over 90 days.   Since JCM was sentenced to 90 says and then not required to serve even that, the statute does not apply.  Furthermore, the disposition order, by law (MCA Sect. 43-21-603(6) is not allowed to provide details of the offense.  The Court concluded by finding the disposition a reasonable one. 

Of note is that the City asked the Court to strike JCM’s brief citing disrespectful language and also arguing that it was a frivolous appeal.  The Ct. of Appeals disagreed with both contentions and denied the City’s request. 

Pierce v. State –  Pierce was convicted of sexual battery and sentenced to 30 years without parole as an habitual. On appeal he raised sufficiency of the evidence and the Ct. of Appeals affirms.  

Pryor v. State – Pryor was convicted of felon in possession for which he received life without parole as an habitual with prior violent felonies.  Pryor was arrested after law enforcement standing outside the police station heard shots fired and went to investigate whereupon they spotted Pryor running across the street.  Pryor was asked whether he heard any shots and he said no. The cop asked Pryor to walk to the back of the patrol car.  As Pryor walked in that direction, he took off running.  The cop chased and as the they ran, the cop heard a loud thud.  Upon investigation he found a pistol.  Another officer testified at trial that he saw a pistol in Pryor’s hands as he was running.  Pryor challenged the sufficiency of the evidence – a challenge that was rejected. Pryor also claimed that it was error to disallow an officer to testify that even though the gun was sent to the crime lab, no prints were found on the gun.  The court sustained the state’s objection to this testimony because it would have been hearsay since the officer himself did not perform any tests.  The Ct. of Appeals notes that this issue is procedurally barred since counsel on appeal cites no authority.  Furthermore, the testimony was inadmissible hearsay.  Pryor argues that the sentence is disproportionate – an argument the Court rejects because the sentence was within that allowed by law. 

Aldridge v. Aldridge – Florence Aldridge was widowed, elderly and ill. Her brother-in-law Louis came to Lakeland, Florida to assist her with her affairs and Florence gave him a durable power of attorney allowing him to exercise authority solely as a fiduciary of Florence’s. Florence ended up in a mental institution but after receiving new medication, recovered her faculties and began to investigate Louis’s handling of her affairs. In December 2008, Florence filed a complaint against Louis, Louis’s wife Janice, Louis’s son Brian and Touched by an Angel Ministries requesting an accounting. During discovery, FLorence learned that Louis had written checks to his wife Janice and to Touched by an Angel Ministries which is a non-profit established to provide camping experiences for mentally challenged young people. After a trial, the chancellor awarded Frances a judgment of $218,455 against Touched by an Angel, and $218,355 against Brian Aldridge was had served as the CEO of Touched by an Angel. Brian and Touched by an Angel appealed arguing that the complaint should have been dismissed based ion the running of the three-year statute of limitations. Florence argued that the SOL began to run only when she talked to her husband’s former accountant and realized the fraud. The Ct. of Appeals held that this was a latent injury case since the fraud was concealed and, therefore, the SOL did not begin to run until the fraud should have been discovered. The Court also disagreed with Brian’s argument that it was error to find him personally liable. Florence cross-appealed on the grounds that the awards were insufficient. The Ct of APpeals rejects her arguments and ends up affirming the chancellor in toto.

One thought on “Decisions – Ct. of App. – March 18, 2014

  1. It would be interesting to read the J.C.M. brief & see what looked so nasty to the City, but apparently this is one of those invisible cases that doesn’t even appear on the court’s online docket, due to the involvement of a minor in the case.

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