Decisions – Ct. of App. – April 8, 2014

Burnham v. Burnham –  Mathew and Dana were divorced.  Dana was awarded some $283,000 in marital assets, primary physical custody of the two children, and $600 a month in child support.  Mathew appealed arguing that the court erred in the amount of assets and child support it awarded and that it also erred in dismissing his supersedeas bond.  The court based the child support on Mathews’ income of $2600 per month but also found that he receives additional income from farming. However, there was no documentation of this additional income or evidence that he still receives it.  The court reversed the child support award because it was more than 20% of Mathews’ income and there was no basis in the evidence to deviate from the statutory presumptions.  The court also reversed the division of marital assets finding that the chancellor allocated too much debt to Mathew and failed to take into account that while Dana had a job making $11 an hour, she had a college degree and could make more than that.  As for the surety bond, MRAP8(a) requires two signatures.  While Mathew argues that his own signature should count as one of the signatures, he was already responsible for the debt and could not serve as a surety. THat part of the chancellor’s order was affirmed. 

Massey v. State –  Massey pleaded guilty to three charges, one for agg. assault and two for felon in possession.  He received what the prosecutor recommended which was about 30 years.  This is his second pcr and it raises the same issue as his first. HE was first represented by appointed counsel. Right before trial he hired new counsel and that attorney negotiated a plea.  Massey claims that his attorney coerced him into taking the plea.  Of course, the plea petition and the colloquy prove otherwise.  He now claims the plea petition was backdated.  The court affirms the dismissal of the pcr motion by the trial court.  This is a second petition which is barred by the Miss.Post Conviction Relief Act.  Furthermore, there was no reason Massey could not have raised the alleged  backdating in his original petition. 

Culpepper v. State –  Culpepper pleaded guilty to abuse of a vulnerable adult.  She filed a petition for pcr claiming her attorney failed to convey to her an earlier, better plea deal.  At the hearing, her trial attorney testified that he did convey the earlier offer and that she turned it down.   The trial court found that she could not prove she had not been told of the earlier plea deal and the Court of Appeals affirms. 

Owens v. Miss. Dept. of Employment Security –  WHen Owens’ husband had a stroke, she needed to take time off her job at a hospital and, based on her absence she was fired.  She was awarded unemployment benefits but was ordered to return the first month’s benefits because she admitted she would not have worked that first month because she was taking care of her husband.  Owens appeals the MDES order that she repay the $620.  The Court of Appeals affirms holding that employment benefits are only for people available to work and since Owens was not available that first month, she  should not have been paid benefits for that first month. 

Atkins et al v. Old River Supply –  Atkins and others were employed at a Volvo dealership. They sued for overtime pay. The court found that Old River Supply was exempt under §213(b)(10)(a) of the Fair Labor Standards Act. That exemption reads: “(A) any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.” The Court of Appeals finds the statute unambiguous and affirms the trial court’s grant of summary judgment to the employer. 

Segrest v. Starnes –  This is a property dispute that began when Segrest had his property surveyed in anticipation of dividing it among his sons.  After the property was surveyed. he filed suit against adjacent landowners, the Starnes brothers, claiming he owned 18 acres in Sect. 19 and all of Sect. 20.  Starnes admitted he did not have a deed to the land in Sect. 19; he was relying on a description in a deed from the Starnes chain of title that excluded 20 acres previously conveyed to Segrest.  Segrest also claimed via adverse possession claiming his family had used the property since 1853.  The Court of App. affirms the trial court’s decision finding for the Starnes brothers.  Segrest failed to prove that he had record title.  He also failed to prove adverse possession.  For one thing, he failed to prove exclusive use.  The Starnes had exclusive use until 2003 when Segrest cut lumber on the property.  But even then, that meant that Segrest had exclusive use only for 6 years prior to filing suit.  

Rosser v. Morris –  The chancellor awarded custody of the child to the natural father and the mother appeals.  Seven years after the initial complaint was filed, the Court of Appeals affirms finding that the chancellor did not err in his weighing of the Albright factors. The mother had substance abuse issues and the father had anger issues but the father had made significant progress while the mother lied about purchasing alcohol.  

Robinson v. State –  Scooter Robinson escaped from police custody and, as might be expected, racked up some additional charges before being caught – failure to stop for law enforcement and aggravated assault on a police officer.  He was indicted as an habitual, convicted and sentenced to two concurrent life sentences. On appeal his attorney filed a Lindsey brief stating that there were no issues.  Scooter was given time to file his own brief which he did raising as issues: 1) the denial of a speedy trial; 2) failure to appoint new counsel; 3) denial of an initial appearance or preliminary hearing; 4) not giving him a proper sentencing hearing and 5) the delay between his arrest and indictment.  The Court of Appeals affirmed.  As for the speedy trial issue, while other factors might have been present, what was lacking was prejudice since no evidence was lost and Scooter was serving time on prior charges. As for the delay between the arrest and indictment. Scooter argued that the delay allowed the state to convict him on other charges and then use those to enhance his present charges. There is no requirement that the offense  used to enhance a sentence occur prior to the offense which is being enhanced. As for the failure to allow Scooter new counsel, he only asked for this on the first day of trial.  The trial court did not err in denying the request.  There was no prejudice in his not getting an initial appearance. And the failure to get a separate sentencing hearing was not error since Scooter did not request one. 

Cofield v. Imperial Palace –  Cofield filed a slip and fall case arguing that she slipped on an unidentified liquid while walking toward the elevators at a casino. The trial court granted summary judgment to the casino because Cofield had no evidence as to how the substance got there. She had an expert opine that the liquid was from guests using the pool but that opinion was mere speculation. Cofield also argued that the casino erred in not saving more security footage of the incident instead of the mere 26 seconds prior to the fall and the fall and aftermath. The Court of Appeals finds no error and affirms. 

Whittle v. Tango Transport – Whittle was employed by Tango driving a truck.  His truck was struck from behind by a dump truck.   The AJ found that he suffered a work-related back injury.  The Commission held that the back injury was not related to the accident (which is affirmed by the circuit court).  On appeal, the Court of Appeals reverses the Commission’s findings on the grounds that it is not supported by substantial evidence.  

In the Interest of CB and KB, minors –   Branson had two children, eight and seven-year-old boys.  One night police were called to the home of Branson’s mother where Branson  had broken several windows and was exhibiting erratic behavior.  Branson’s two children were found in  a planter’s box in a neighbor’s carport.  Branson was admitted to St. Dominic’s for psychiatric treatment (Branson testifies she was diagnosed as bipolar) and the boys were placed with their aunt.  At an adjudication hearing, the boys were found to be neglected and custody was to remain with DHS.  Branson appeals but loses. 

Tellus Operating Group v. Maxwell Energy –  The court reverses itself on rehearing. The Oil and Gas Board issued an order allowing Tellus, the operator of a proposed oil and gas well, to charge statutory “alternate charges” to each “nonconsenting owner” of drilling rights which included Maxwell.  Maxwell appealed and the chancery court reversed finding that the Board’s decision that Tellus offered Maxwell reasonable terms was unsupported by the substantial  evidence and, moreover, that Maxwell had agreed in writing to participate in the drilling of the well. This was affirmed in December but, on rehearing, the Court of Appeals reverses and affirms the Oil and Gas Board’s decision allowing Tellus to “force integrate” with “alternate charges” a drilling unit for a proposed gas well. Before assessing alternate charges, Tellus, as required by MCA Sect. 57-3-7(2)(a), wrote to Maxwell and offered three options: 1) a written agreement to lease out the property or 2) to farm out or 3) to participate in the well by signing an operating agreement and authority for expenditure.  The Board’s decision that these options were reasonable was supported by substantial evidence.



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