Decisions – Ct. of App. – May 13, 2014

Best case of the day:

Davis v. State – Davis indicted for DUI and possession of beer in a dry county. He was acquitted of the DUI but found guilty of possession and sentenced to 45 days in jail. He appeals raising these issues: 1) that the state failed to prove that Covington County is dry; 2) that the state failed to prove that the liquid in question contained more than 4% alcohol; and 3) that 45 days is cruel and unusual punishment. I wasn’t sure what to think about this one but Davis wins because the state failed to prove  that the county was a dry county. (Congrats to Leslie Rousel!l)

And the rest:

Seales v. State – Seales was convicted of one count of possession of more than two and less than ten grams of cocaine and sentenced to lwop as an habitual.   He raises one issue on appeal – whether the trial court erred in overruling an objection to a leading question.  Spears had an arrest warrant out for him and when officers spotted him driving, they pulled him over and took him into custody.  While doing so they noticed something in his mouth.  When Seales finally spit it out, there was a bag containing  marijuana and another containing crack. During the trial, one of the officers was asked whether he had become aware of through radio traffic that Seales had been put under the arrest on that warrant by Officer Spears.”  The defense objected based on leading.  The objection was overruled.   Not a surprise the conviction is affirmed.

Martin v. State –  Martin pled guilty to one count of possession with an enhanced penalty as a second offender.  He later filed a motion for pcr with the trial court alleging a defective indictment (as far as I can tell, every inmate’s favorite issue – not so much the courts’).  His argument that the indictment was defective because it failed to specify to whom  he intended to transfer the hydrocodone impresses neither the trial court nor the court of appeals.


Jefferson v. State – Jefferson was convicted of felony DUI  (his third DUI in five years) after an auto stop revealed he was twice the legal limit.       He argues sufficiency of the evidence.  The Court finds this argument is not sufficiently developed for it to consider.  He also argues that it was a Brady violation for the state to fail to provide him with a certificate of the most recent calibration of the machine used to test his blood alcohol concentration.  This is found to lack merit because he argues only that the evidence could have been useful and Jefferson fails to demonstrate that it was.                  

Davis v. Vance – in 2006, MHP pulled over Davis’ Mercedes and found marijuana in the car.  MBN seized the car and filed a notice of forfeiture.   While Davis was out waiting for the marijuana case to go to trial, he was arrested on federal cocaine charges.   In 2007, Davis hired Travis Vance to defend him on the state charges.   He paid Vance a $5000 retainer and deposited $8000 in escrow to pay any fines. In 2008, Davis signed off on an order forfeiting the car. 

In 2011, Davis sued Vance for legal malpractice alleging that Vance breached his fiduciary duties when he agreed to forfeit the car because  Davis had not authorized Vance to do so.  Vance filed a motion for summary judgment on the SOL (more than three years had passed).  This was granted.   Two months after the order was entered, Davis filed a motion to reconsider.   When this was denied he appealed.  The Ct of Appeals gives us another opportunity to learn the scope of review on appeal from a 60(b) motion – abuse of discretion. The Court affirms the denial of Davis’ Motion to Reconsider.   

McGhee v. Dr. Virginia Young – McGee was employed by the Newton Municipal School District from 2011 through 2012. In January of 2012, she applied to participate in a leadership program called the Mississippi Alternative Path to Quality Leadership Program (MAP) which would allow her to obtain an administrator’s license. To apply she needed consent from her superintendent as well as a letter of recommendation from her superintendent. In April 2012, McGhee received notice that her teaching contract would be renewed. Because she had to be employed in a Mississippi school system to participate in MAP, McGhee could not participate in the program and she sued arguing that Dr. Young’s agreeing to let her apply for MAP was a contract to employ her for the 2012-2013 school year. The trial court granted summary judgment for Dr. Young finding that McGhee fails to offer proof all of the requisites of a contract.        

 Porter v. Grand Casino and State Farm – Porter’s beachfront home was destroyed in Katrina when the storm carried an unmoored barge into it. Porter argued that this was covered under her all-risk homeowners policy which did not expressly exclude barges. When coverage was denied, she sued State Farm and the owner of the barge. The trial court granted summary judgment for both defendants. The Miss.Ct. of Appeals agrees finding that her insurance clearly excluded water but also loss that would not have occurred in the absence of water. Thus, while Porter can show that it was a barge that destroyed her home, she cannot show that it would not have occurred in the absence of water.

Greg Nethery v. the Estate of Doris Nethery – Glen Nethery and Doris Nethery married in 1987. In 2006, Doris brought 74-year-old Alzheimer-suffering Glen to an attorney’s office. Doris was worried about shielding her assets from social security if Glen was placed in a nursing home. That lawyer sent her to another lawyer where the couple went and signed a joint complaint for divorce which was finalized in 2006. Doris sold the marital home and put the money into accounts in her name.

In 2007, Glen’s son Greg was appointed guardian of Glen. Greg obtained the court’s permission to sue to set aside the divorce and sue Doris for fraud, etc. The chancellor ended up setting aside the divorce and property settlement agreement on the grounds of overreaching and inequitable conduct. Greg then moved to set aside a deed to the marital home given by Doris to third parties. Greg also moved to recover for attorneys fees spent to obtain t he divorce. Before Greg could get a ruling on the attorneys’ fees, Glen died. Greg petitioned to become the administrator of the estate but given the antipathy between Greg and Doris, the court appointed the chancery court. The court denied the motion for attorneys fees on the grounds that Greg lacked standing since Glen was dead and Greg was not the administrator of the estate. Greg appealed the order but that appeal was later dismissed by agreement of the parties.

Doris died in 2009. Glen’s estate filed a notice of claim for $30,000 in attorneys fees (stemming from setting aside the divorce and property settlement). Doris’ estate eventually moved to dismiss the claim based on the failure to prosecute. The trial court granted the motion to dismiss finding that Greg failed to substitute Glen’s Estate as a party in the divorce action.

On appeal, Justice Carlton writes that the claim is barred by res judicata since it was denied previously and Greg failed to pursue the appeal.

9 thoughts on “Decisions – Ct. of App. – May 13, 2014

  1. Carlton’s dissent in the dry-county case makes no sense to me – she goes on about sufficiency of notice, but the court reverses on sufficiency of the evidence (and failure to correctly instruct the jury … isn’t that one a remand not render, or does double jeopardy attach?), of which she says nothing. Obviously the COA is too overworked even to write dissents properly. 😉

  2. For insufficient evidence – reverse and render. Weight of the evidence – reverse and remand. The difference is a little technical and of interest only to criminal law practitioners but now and then that difference is important. I guess you could say that for insufficient evidence, the prosecution screwed up and double jeopardy comes into play.

  3. No, it works like that on the civil side too. I just wasn’t sure whether a jury-instruction error raised DJ claims, tho now I see more clearly that I’m an idiot, because if you were convicted, then no DJ issue.

    Btw I love the picture of “no, I didn’t commit malpractice … and waddya mean I had to seek reconsideration within 10 days? is that a rule or something?” #facepalm

    • Yeah. Some lawyer won a silica case recently on insufficient evidence. But think about it, if you are reversed strictly on weight of the evidence (and not for bias, passion and prejudice or a bad instruction), the court is saying you didn’t have enough evidence this time, we will give you another shot. What’s the rationale for that?

      • I think the idea is that the jury must’ve been biased because the weight was overwhelmingly against. (But more than a scintilla, or else’s it’s legally insufficient!)

      • I know bias is typically recited as a separate basis from overwhelming weight, but I think originally, distinct from separate proof of bias (like inflammation by the prosecutor or whatev), the idea was that to find against the overwhelming weight itself suggested bias. Older cases sometimes put it that way: “Nor do we think that the verdict of the jury is against the weight of the evidence as to the value of the property to such an extent as to show bias, passion and prejudice on the part of the jury.”

        Ford v. City of Pascagoula, 228 Miss. 265, 269 (Miss. 1956)

  4. Okay, one more & then going home: it’s not *insufficiency* – on a new trial grant, the court is saying, okay, sure, there was *enough* evidence to find as the jury did, but there was SO MUCH evidence to the contrary, that it makes ya really doubt the jury was following its instructions. Tho then I wonder what happens if a new jury hears the same evidence & finds the same way. How many times ya gonna hit rewind then?

    • Exactly. If it’s the EXACT same evidence, it would be reversed again. There was a criminal case from the coast where they tried some girl seven times I think in the death of her boyfriend. This was maybe thirty years ago. But civil or criminal . . . . all I know is that I’d hate to be the one drawing a line between sufficiency and weight.

      • I think of it as, insufficiency = ain’t nothin’ there, whereas weight = okay, if this were all there was we’d affirm, but COME ON MAN!

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