Decisions – Miss.Ct. App. – Nov. 4, 2014 – part 3

Bobby Settlemires v. Capital City Insurance Co. – presumption of total loss of scheduled member – Bobby Settlemires seriously injured his left leg in an on-the-job injury in September  2008.  Capital City Insurance Company admitted the injury was work-related but denied Settlemires was permanently disabled. The AJ awarded Settlemires 87.5 weeks of permanent partial disability benefits for the fifty percent industrial loss of use of his lower left extremity. The Mississippi Workers’ Compensation Commission affirmed.  On appeal, the Court of Appeals  reversed and remanded for the Commission to determine whether Settlemires raised the presumption of total occupational loss of the scheduled member and, if so, whether CCI adequately rebutted that presumption. See Settlemires v. Capital City Ins. Co., 114 So. 3d 789, 792-93 (¶12) (Miss. Ct. App. 2013). ¶3. On remand, the Commission determined Settlemires did raise the presumption of total occupational loss of his lower left leg, but CCI adequately rebutted this presumption with overwhelming vocational and medical evidence showing Settlemires had the ability to earn the same wages as those at the time of his injury. Settlemires again appeals, arguing the Commission erred in failing to award him a one hundred percent industrial loss of use of his lower left leg.   The Court of Appeals affirms.

In the Matter of the Estate of Louis Pannagl, Jr. –  sanctions for probating copy of will that petitioner knew had been revoked –  In 2011, David Lambert filed a petition to probate a copy of  his stepfather Louis Pannagl’s last will and testament. The petition alleged that the original was lost and not destroyed by Louis with the intent to revoke.  Curt Pannagl filed an objection.  When an attorney Louis had contacted about his will was about to give a deposition that would have revealed that Lambert had been given a letter written by Louis that he intended to revoke the will, Lambert amended his petition to allege that Louis died intestate and to appoint his widow (Lambert’s mother) as the administrator. Curt and his sister Sammi filed a motion for summary judgment and a Rule 11 motion.  The trial court granted summary judgment but denied Rule 11  sanctions.  On appeal, the Court of Appeals reverses finding that the chancellor abused her discretion in denying attorneys fees where the record was clear that Lambert and his attorney filed the petition knowing there was evidence that would show that the will had been revoked.

Platt v. State –   common law DUI – Platt was charged with driving under the influence and he was found guilty in Justice Court of  common law DUI.   Platt appealed to the County Court of Madison County. During trial, after Platt’s blood test results were admitted into evidence, the court granted the State’s ore tenus motion to amend Platt’s charges to include per se DUI pursuant to MCA sect, 63-11-30(1)(c).  The county court found Platt guilty of common law DUI. Platt appealed to the Madison County Circuit Court, which affirmed the judgment of the county court. Platt appeals that (1) the evidence was insufficient to support his conviction; (2) the county court erred by finding that there was probable cause for the stop; (3) the county court erred by admitting the blood test results; and (4) the county court erred by amending the charges. The Court of Appeals affirms.

Brendan Holcomb v. Megan Holcomb – custody – Exie was born to Brandon and Megan approximately a year before they were married.  A little more than a year later,  Brandon filed for divorce claiming that Megan had committed adultery.  The court awarded  custody of Exie to Megan with visitation to Brandon and he appeals. “Specifically, Brandon asserts that the chancellor did not give proper weight to the fact that Megan had committed adultery and its effect on Exie. He also asserts that her actions indicate a pattern of selfish behavior. Brandon further points out that Megan’s family members testified that Brandon would take good care of Exie if he were awarded custody. On the other hand, Megan argues that while she did commit adultery, there was no evidence to show that her behavior had any negative impact on Exie.”  The Court of Appeals finds no reason to disturb the chancellor’s findings and affirms.

Bennie Gunn v. State –   capital murder –  Gunn was convicted of capital murder in  the killing of a William Morris  who was making a  delivery to the Super Save store in Jackson in September 2010.  He was also convicted of two counts of felon in possession of a weapon, two counts of armed robbery, and two counts of aggravated assault. Gunn argues on appeal that: “(1) the trial court erred when it failed sua sponte to sever a multiple-count indictment; (2) the trial court erred when it allowed the State to introduce improper evidence and the State emphasized that evidence in closing argument; (3) the firearm enhancement subjected Gunn to double jeopardy; (4) the State improperly commented on Gunn’s right to remain silent; (5) the verdict was against the overwhelming weight of the evidence and the evidence was insufficient to support the verdict; (6) Gunn received ineffective assistance of counsel; and (7) cumulative error requires reversal.”    The Court of Appeals affirms.

PCR appeals denied:

Anthony Fortenberry v. State

Wendell Duncan v. State

Robert Barnes  v. State

Milton Trotter v. State  

Kevin Warren v. State 

Kenneth Watkins v. State

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