Decisions – Ct. of App. – April 22, 2014

Williams v. Mueller Copper Tube Co. – Workers comp. – Hosch was killed in an explosion while working for Mueller Copper which was a subsidiary of Mueller Industries. His estate received workers comp. benefits but sued Mueller Industries alleging that it had various rules and regs for its subsidiaries designed to ensure worker safety and that Mueller Copper repeatedly violated those rules. The estate argued that the inaction of Mueller Industries was sufficiently egregious as to make it a third party tortfeasor and not eligible for immunity under the workers compensation statutes. The court ruled otherwise and Hosch’s estate brought this appeal.  THe Miss.Ct.App. reverses the trial court’s ruling that the acceptance of $2000 in funeral expenses as workers compensation was an election of remedies.  “We conclude that the dismissal cannot be upheld under Rule 12(b)(6) because it depends on evidence  outside the pleadings.  And since both sides agree the trial court did not convert the Rule 12(b) motion to dismiss into a motion for summary judgment, we must reverse and remand this case for further proceedings consistent with this opinion.”   

Hersey v. Gratton –  child custody dispute asking whether it was appropriate for Alcorn Chancery Court to cede jurisdiction to Ontario court.  The parties were divorced in 2010 in Alcorn County.  In 2011, Gratton moved to Ontario Canada.  The move was supposed to be temporary but in March 2011, Gratton filed a motion in the Ontario Court of Justice to change Hersey’s visitation.  Hersey then filed a motion in Alcorn County for contempt.  In May 2011, an agreed order was entered in the Alcorn County Court whereby the parties would have joint custody.  In December 2011, Gratton filed a motion in the Ontario Superior Court of Justice requesting a custody modification and that visitation be modified.  In February 2012, the Alcorn County Chancellor found Gratton in contempt.   In August 2012, the courts in Alcorn County and Ontario along with the parties conferred via telephone at which time the parties agreed to come to an agreement.  Two months later,. the Alcorn County chancellor issued a nunc pro tunc order finding that the Ontario Court had jurisdiction.  THe Miss. Ct. of Appeals affirms finding that under the UCCJEA only one court may assert jurisdiction after an initial custody order has been entered.  Here, Hersey failed to object when the chancellor recognized the Ontario Court as the proper forum.  “Upon review of the record and Judge Mask’s detailed findings, we can find no error in her decision that the Ontario Court was the proper forum to determine custody issues.” 

Dean v. Slade –  pro se adverse possession case in which plaintiff loses. 

Johnson v. State –  Johnson pleaded guilty to gratification of lust.  He signed a plea petition but apparently tried to withdraw the plea which the trial court denied and sentenced Johnson on July 20, 2009.  On August 25, 2009, Johnson attempted to file a notice of appeal which was dismissed by the Miss. Ct. of Appeals as untimely.  Johnson later filed a motion for post conviction relief which the trial court denied on September 23, 2010.  In August 2012, the Miss.S.Ct entered an order in response to Johnson’s motion for an out of time appeal.   In January 2013, Johnson asked the circuit court for an out of time appeal which it denied.  Johnson appeals and loses. 

Rivers v. State –  Rivers pleaded guilty to possession of cocaine and was sentenced to eight years, with eight years suspended and five years’ supervised probation.   In March, 2012, the court revoked the suspended sentence and ordered Riivers to serve the remaining four years of his suspended sentence.   Rivers filed a motion for post conviction relief in December 2012.   The motion was summarily dismissed in February 2013.  “Rivers now appeals the dismissal  of his PCR motion, claiming that he received an illegally lenient sentence in 2008.  FInding the issue time barred, we affirm the judgment of the circuit court.”   “Rivers suffers no prejudice from his illegally lenient sentence,” the court concludes.

Bursey v. State –  Bursey was convicted of felon in possession.  He came to the attention of law enforcement when  Marquette Profeit woke up to the sound of someone knocking on his apartment door looked out the window and saw someone he did not know with a .40 caliber handgun.   Profeit called 911.  WHen the police came, they spotted David Bursey near the side of the apartment complex.  Bursey gave the officer a false name.  WHen the officer attempted to search Bursey for weapons, Bursey fled.  He was later found at a nearby home/  The police found two .40 caliber handguns near where Bursey had been stopped outside the apartment complex.  On appeal Bursey argued that a flight instruction should not have been given.  The Court of Appeals finds this issue barred by the failure to object at trial.   He also argues that the trial court erred in denying a circumstantial evidence instruction.  The Court finds that Profeit’s testimony takes this outside a circumstantial case.  Bursey’s ineffective assistance claims are  dismissed without prejudice so that he can raise them on pcr.    


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