Decisions – Miss.Ct. App. – July 22, 2014

In the Matter of the Last Will and Testament of Mabel Claire Hardin – In 2007 John Mike Hardin filed a petition to dissolve Rainbow Ranch, a family farm corporation owned by four siblings. RR consists of 1096 acres of cropland, pastures, ponds, timber, etc. Two of the siblings, James and Charles, have resided on the property in two separate houses for years. John also requested partition of his 25% interest in his mother’s estate (his mother was Mabel Hardin). Rainbow moved to elect to purchase John’s 23.6% of the stock. John, though, wanted his interest paid in property. The chancellor awarded John real property but also ordered John to pay Rainbow Ranch $5,807 in order to equal the amount of property he was awarded. John was also awarded 23.6% of RR’s accounts, profits from 2011 crops, etc. John also had claims of fraud, conversion, breach of fiduciary duties against his brothers Charles and James Hardin which the court dismissed. Both sides appealed. RR argued that the court abused its discretion when it used its equitable powers to fashion an alternative remedy to the cash payment to John for his shares. The Court of Appeals affirms this part of the order below finding that the court’s in-kind division of the real property was an equitable result supported by substantial evidence. However, on John’s cross appeal, the Court reverses and remands the dismissal of John’s claims against Charles and James. The court had stated that the claims against the two brothers were circuit court matters that they should take up with Judge Lackey. The law is that if the complaint provides an independent basis for equity jurisdiction, the chancery courts may hear law claims.

Daniel Wayne Byers v. State Byers was convicted of two counts of felony child abuse and sentenced to 40 years on each count to run concurrently. Byers lived with his girlfriend Anna and her three daughters on the coast. In Sept. 2011, Anna’s two year old Tiffany suffered injuries while in Byers’ care. Byers took her to the hospital where she was treated for a fracture of the right femur along with bruises and lacerations all over. Byers claimed these injuries were caused when Tiffany got her foot caught in the crib and she fell from the crib to the floor. The medical staff suspected child abuse and an exam of the girl revealed small tears in her vagina and a non-intact hymen. On appeal, Byers alleges that the admission of a taped forensic interview with Tiffany violated his right to confrontation. Not only was there no objection at trial, though, Byers attorney requested the tape be played. Both participants in the interview testified at trial (although the defense declined to question them). Byers also raises ineffective assistance of counsel due to his attorney’s asking for the tape to be admitted. The court chalks this up to trial strategy because in the tape, Tiffany denied that she was touched in accordance with counts 4 and 5 of the indictment. Byers argues that the evidence was insufficient to support a finding of serious bodily harm. His sufficiency of the evidence claim that her bruises and lacerations did not constitute serious bodily injury is also denied since the doctor testified that it would have taken a hard slap or something with blunt force to cause the injuries. Finally, he raises double jeopardy arguing that while the injuries were divided into two counts (lacerations, broken leg) they were all part of the same conduct. The Court holds that the injuries were alleged to have been caused by different conduct and they were alleged to have occurred on different dates, count 3 was between Aug. 1, 2011, and Sept. 4, 2011 and Count 1 as between Sept. 3 and Sept. 4, 2011.

Pruitt v. Pruitt – Lisa and Jason obtained an id divorce in March 2010. Lisa got physical custody of Cole born in 2004 and Kyle born in 2004. In April 2012, Jason moved to modify custody arguing that Lisa started dating a Bobby Stafford in August 2010 and he was indicted for sale of hydrocodone shortly thereafter. The relationship ended when Bobby went to jail a year later. Jason was also concerned that the children had poor school performance because of Lisa’s bad health. She had started suffering migraines due to a pseudotumor for which she had had four brain surgeries and had a shunt placed in her head. In Feb. 2011, she took the children with her to New Orleans where she was treated at Ochsners and they attended two Mardi gras parades. The kids missed a week of school. Jason testified that the reason he moved to change custody was because he got a letter from Lisa’s mom, Judy, which claimed that Judy was taking care of the kids 90% of the time and that the kids had seen things like drug deals in Lisa’s home. The chancellor held that Lisa’s relationship with the drug dealer was not a material change in circumstances. And while the change in her health was a material change in circumstances, it did not adversely affect he children. The Court of Appeals reverses citing testimony that indicated that the deterioration in Lisa’s health had affected the children. Therefore, the case is remanded for the chancellor to conduct an Albright analysis.

Albert Brisco v. State – Briscoe ran a roadblock and officers pursued. He drove his SUV into a ditch killing his girlfriend. His bac was .04 and he tested positive for alcohol, marijuana and ecstasy. He was convicted of culpable negligence manslaughter and sentenced to 17 years to serve. On appeal he argues sufficiency and weight of the evidence. A unanimous court (with James not participating) affirms.

Michael Taylor v. State – Taylor was found guilty of one count of possession of stolen property, a skid steer. The pros. amended the indictment to change the date on which Taylor was alleged to have possessed the skid steer and to add a habitual enhancement. Taylor was found guilty and the court sentenced Taylor as an habitual to ten years without parole. Puckett Machinery leased a skid steer to Chain Electric which was using it on a job site in Hattiesburg. The equipment disappeared sometime around April 18, 2011. In June, Puckett Rental received a call from a man named Alex Walker who needed his skid steer serviced at a job site on Robinson Springs road. When a Puckett employee put the serial number of the skid steer into the computer, the computer flagged the serial number as belonging to stolen equipment. The computer also identified the owner of the skid steer as Puckett Rents, a subsidiary of Puckett Machinery. Madison police interviewed Alex Walker and he told them he had purchased the equipment from a white man with a jack o’lantern tattoo on his arm. The transaction, Walker said, took place near the What-A-Burger on County line Road. Law enforcement asked Walker to assist them in finding the man who had sold him the skid steer. When Walker was shown a picture of Michael Taylor, who is black, he identified him as the man who sold him the skid steer in exchange for a jeep, another car and $10,000. Walker said that he lied about it being a white man because he was scared. Taylor testified that he had known Walker for about two years and had done some work for him on approximately three jobs. On the first job, Walker did not start out with a skid steer but brought one to the job site around the third day.
On appeal Taylor argues that it was error under MRE 404(b) for the jury to hear law enforcement testify several times that Michael Taylor and his brother were the focus of a “large investigation” spanning several counties. He argues that the DA improperly vouched for Walker’s testimony. It was a discovery error for the state to produce the cell phone containing a photo of the skid steer only mid trial and that the evidence was either insufficient or the verdict was against the overwhelming weight of the evidence. The Court affirms but there is a dissent by J. Irving joined by Lee and Ishee and, in part, James, in which Irving finds that the case should be reversed because Taylor did not receive a fair trial or effective assistance of counsel.

Health Care Medical Inc. v. Christy Good</em> – Good filed a claim against Healthcare Medical for breach of contract and violations of the Fair Labor Standards Act. Healthcare Medical filed a counterclaim for misrepresentation and fraud. The Court dismissed the counterclaim on the grounds that set-offs and counterclaims are improper for FLSA claims and that the SOL for fraudulent representation and detrimental reliance had passed. The Court cites the law that counterclaims are available in FLSA suits only where the employer prepaid wages to the plaintiff which is not the case here. As far as the denial of Healthcare’s motion to amend its answer to add an affirmative defense, the court was within its discretion to deny the motion inasmuch as the motion was filed six years after the defendant filed its answer.

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