Decisions – Miss.Ct.App. – Nov. 25, 2014

David Pittman v. StateDUI – Pittman was arrested after a Starkville police officer encountered him in a vehicle that was half in half out of the road and appeared to have just hit some trash cans.  When the officer tried to help Pittman out of his vehicle. Pittman was very off balance, staggering, struggling to hold himself up on the car and unable to tell him what he was doing. Pittman refused to perform field sobriety tests and a preliminary breath test. On appeal he argues that the evidence was insufficient to convict him of common law DUI.  The court affirms.

Larry Singleton v. State –  sexual battery of a child –  Singleton was convicted of gratification of lust, sexual battery of a child  under fourteen years of age, sexual battery of a child at least fourteen but under sixteen years of age, and possession of child  pornography arising out of a seven year “relationship” he had with a neighbor’s child.  The child eventually told the police who set up a sting operation and recorded a phone call between Singleton and Daniel (the child) in which Singleton confirmed some of the  abuse. Singleton was arrested and denied the abuse until he was played the recording after which he admitted it.

On appeal he argues that the trial court erred when it: (1) denied Singleton’s motion to sever the child porn from the other counts in the indictment; (2) admitted some photographs into evidence  and (3) denied Singleton’s motion to suppress his custodial statement.  The Court affirms.

Jeremy Edwards v. State –  shooting into an occupied dwelling –  Edwards  was convicted of shooting into an  occupied building.  He was sentenced  to five years, with four years suspended.   Edwards argues  insufficient evidence. The shooting happened in August 2012 when the owner of  K&J Grocery and Grill in Greenville saw a group of approximately ten men gathered outside of his place of business. He asked them to leave.   All of them left  except for Edwards who came into the store, purchased a cigar, and began cursing and yelling. Edwards shouted at Whatley, asking whether he was talking to Edwards specifically when Whatley asked the men to leave. Whatley replied he aimed his request at all of the men, not just Edwards. Whatley then escorted Edwards out of the store.   Later,  Whatley went outside of the store just prior to closing and saw Edwards across the street holding something black in his hands. Moments later, after Whatley went back inside the store, several gunshots rang out. At least one projectile hit the front door of the store, and another possibly struck a vehicle belonging to Whatley.   When the police investigated the shooting, Whatley was the only witness and he told police he did not see the perpetrator, but told police he believed Edwards was responsible for the shooting. He identified Whatley from a lineup as the man outside his store.  The Court affirms finding that Whatley’s testimony was sufficient to undergird a jury’s finding of guilt.

Patricia Elliott v. First Security Bankpremises liability/invitee – Patricia Elliott sued First Security Bank in Panola County  for a shoulder injury she suffered when she tripped and fell on a sidewalk in front of FSB. FSB was granted  summary judgment on the grounds that Elliott was not an invitee since she parked at the bank in order to eat at a nearby restaurant. The Court of Appeals affirms.  Elliott was a licensee since her “decision to park in FSB’s parking lot in order to eat at a nearby restaurant conferred no benefit to FSB.”  As a licensee, “the defendant[] owe[s] no higher duty to [the injured party] than to refrain from willfully wantonly injuring her.”  To “constitute willful and wanton injury, something more than mere inadvertence or lack of attention is required.”  “Additionally, this Court has held that when a landowner does not know that the injured person was present on the property, he cannot be found to have willfully or wantonly injured that person.”

Teresa Bolivar v. Larry Bolivar –   divorce/default judgment –  “In May 2013, the Jones County Chancery Court granted Larry Bolivar a divorce on the ground of desertion from Teresa Bolivar. Teresa filed a motion to set aside the judgment  of divorce on June 12, 2013, alleging that she had not been served properly.  The trial court denied the motion.  On appeal she argues for the first time  that Larry had a duty to serve her notice of the May 2013 hearing even though she failed to file an answer and that Larry’s failure to first have Teresa found in default was error under MRCP 55.

 This rule is “not directly applicable” to divorce proceedings. Stinson v. Stinson, 738 So. 2d 1259, 1262 (¶12) (Miss. 1999). Specifically, the Mississippi Supreme Court has held that a judgment entered in an action for divorce following a defendant’s failure to answer is “a special kind of default judgment.” Id. at 1263 (¶13) (quoting Mayoza v. Mayoza, 526 So. 2d 547, 548 (Miss. 1988)). A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant.  Id. at (¶15). This reasoning is supported by Rule 55(e), which provides that “unless the claimant establishes his claim or rights to relief by evidence,” a default judgment will not be entered in a suit for divorce. “Furthermore, a divorce will not be granted on the uncorroborated testimony of the claimant.” Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶13) (Miss. 2002).

Since Teresa failed to answer or appear, we find that she was in default and not owed notice of the divorce hearing.

Christopher Lee v. Nikki Leedivorce for habitual drunkenness – The Lees were married for three years and had one child when Nikki filed for divorce on the grounds of habitual drunkenness. The chancellor awarded sole physical custody to Nikki, “reasonable” visitation to Chris, and joint legal custody to both. Because  Nikki  planned to relocate to Wisconsin,  the chancellor ordered that Chris was responsible for transportation costs.  Chris argues that the evidence was not sufficient to prove habitual drunkenness and, besides, Nikki knew he drank a lot before she married him. He also claims that the court erred in making him pay for transportation.  Nikki testified that Chris drank 5 or 6 beers  a night, once  woke her up urinating on her leg, and on several occasions, he passed out and did not remember anything that happened.   The Court affirmed. There was conflicting evidence as to Chris’s drunkenness and the court’s decision was not arbitrary.  Chris did not raise his “condonation of drinking” argument at trial. Nor did Chris challenge transportation costs at trial.  And even if he had, he fails to prove that the costs are an unreasonable burden on visitation.

Gregory Dailey  v. Tracie McBeath Fairlymodification of child support – Tracie and Greg  had a child born out of wedlock in 1992. Nine years later Tracie filed a petition for custody and other relief.  The parties entered into an agreed order wherein Tracie was granted primary physical and legal custody of the child, and Gregory was ordered to pay $334 per month in child support (retroactive to August 2, 2001), $1,750 in back child support, and one-half of the child’s reasonable medical expenses not covered by insurance. .When Greg became extremely delinquent on the ordered child support, Tracie filed a petition for modification and contempt in December  2005, followed by an amended petition for modification and contempt filed in June 19, 2006. A bench warrant was also issued for Gregory at that time. A third amended petition for modification and contempt was filed by Tracie on November  2009. In February  2010, Gregory was found in contempt and ordered to pay a purge amount of $5,000, and the chancery court reset “this matter” for a later date. In April  2010, the chancery court found Gregory in “willful, wanton[,] and contumacious contempt” of the 2001 order and granted Tracie a judgment of $35,695 ($27,486 in past child support, $7,000 in attorney’s fees, $900 in investigative fees to locate Gregory, and $309 in court costs), plus eight percent interest from the date of the order. The chancery court also ordered Gregory incarcerated until he paid a purge amount of $11,898.33, which he promptly paid. Gregory was ordered to pay an additional $200 on top of his monthly child-support payments of $334 to reduce the remaining arrearage.

In June  2011, Tracie filed another petition for modification and contempt, asserting that since the first contempt proceeding a year prior, Gregory had only paid $1,600 in child support and  nothing towards the arrearage. She also claimed that a
modification of child support was warranted due to  “college expenses, car insurance, and extracurricular activities.”  At a hearing on the petition,  Tracie’s counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months. Both parties requested a continuance, but the chancellor denied the motions and proceeded with the hearing, despite the protestations by his counsel that Gregory was not present.  At the conclusion of Tracie’s testimony (since Gregory had failed to make an appearance), the chancellor issued a bench ruling, holding Gregory in contempt and ordering The judgment of incarceration was stayed for thirty days.  He also increased  the monthly child-support payments from $334 to $450.

On appeal, the court reverses the modification of child support because the  chancellor failed to make specific findings of fact  to support the modification as well as the deviation from statutory guidelines.

Tallulah Redding v. MDOTeminent domain/exclusion of prenegotiation appraisal report  –  The Miss. Transportation Commission  sought to reconstruct a segment of State Road 304/I-269 from I-55 to State Road 305 in DeSoto County, Mississippi. In doing so, it sought to acquire 81.28 acres from a parcel of 436.19 acres that were owned by the landowners. Since the landowners could not agree to a price, the MTC commenced an eminent-domain action.  The MTC filed a statement of values that represented the value of the property to be condemned at $1,370,975. There was also a  pre-negotiation appraisal report prepared for the MTC which is  required by M.C.A. Sect. 43-37-3. The MTC filed a motion in limine asking to keep this report out of evidence as a settlement offer.  The court granted the motion and excluded the appraisal. At trial,  the MTC’s appraiser  testified that the property’s appraised value was $1,370,975. His prenegotiation appraisal report, which was excluded, appraised the property at $1,912,125. The landowners’ expert appraiser testified that the just  compensation due to the owners was $3,700,000. The jury returned a verdict of $1,709,197. On appeal, the court reverses because of the exclusion of the pre-negotiation appraisal report.  “Here, the landowners are allowed to impeach the MTC’s expert witness appraiser with his prior appraisal. See M.R.E. 607. The prior appraisal was certainly relevant evidence. See M.R.E. 401-402.”

PCRS:

Rickey Sturkey v. State

James Creel v. State

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