Decisions – COA – May 5, 2015

Shawn Jackson v. State trial court’s ability to reconsider sentence –  Jackson pled guilty to several counts of transfer of a controlled substance and possession with intent to distribute a controlled substance. He was sentenced to twenty years to serve. Jackson moved before the term ended to reduce his sentence which the trial court granted reducing his sentence to 12 years.   The State convinced the circuit court that the court lacked jurisdiction to reduce Jackson’s sentence because it was not reduced during term time and the court rescinded the reduction.   Jackson field a pcr motion.  It sat for 11 years until Jackson amended it to argue that the court did not lack jurisdiction.   The State argued that Jackson had not obtained permission to supplement his PCR motion and that it was untimely. The circuit court agreed and denied the motion.  Jackson appealed and the COA reverses because the trial judge may reconsider a sentence as long as the motion is filed during the same term.   “We remand for a determination of whether the circuit court’s decision to reduce Jackson’s sentence to twelve years should be reinstated.”

Billy McKissack v. Terri McKissack –   date of valuation of property in divorce – This case was reversed once before when the court held that the chancellor erred in  classifying a $500,000 cd was marital property. McKissack v. McKissack, 45 So. 3d 716, 722  (Miss. Ct. App. 2010).  On remand, the court recalculated distribution and alimony based on this ruling and awarded Terri $250,000 in lump sum alimony.  Billy appeals arguing, for one thing, that the court should take into account losses he suffered after the first ruling.   The COA affirms  holding that the chancellor did not err  when he found that because he had already valued the property as of the divorce hearing date when making his findings,  “any accumulation of additional assets or the appreciation of awarded assets should be classified as separate property[.]”.  The date of valuation is discretionary with the court.

Lakinta v. State –  double jeopardy – Goldman was convicted of two counts of armed robbery, two counts of kidnapping, and one count of possession of a firearm by a felon arising out of the robbery of a Family Dollar in Duck Hill.  He  ended up with a sentence of 70 years.  On appeal his attorney filed a Lindsey brief.  . Goldman filed a supplemental pro se brief arguing that he  was denied effective assistance of counsel when counsel failed to request an impeachment instruction in support of Goldman’s defense;  the State failed to prove the basis for a habitual-offender sentence enhancement; and double jeopardy.  The Court finds that Goldman did get an impeachment instruction, the state proved his habitual status, and the three counts of armed robbery and two of kidnapping was not double jeopardy since each count pertained to a different victim.

Cindy Walls v. Franklin Corp. – bad faith refusal to pay workers comp – In Walls v. FranklinCorp, , 797 So. 2d 973, 977  (Miss. 2001)  the Mississippi Supreme Court held that Cindy Walls “could not maintain a bad faith action for refusal to pay for disputed medical services and supplies absent the [Mississippi Workers’ Compensation] Commission’s prior determination that those services and supplies were reasonable and necessary.”  The trial court interpreted this to mean that the lawsuit filed after Walls she obtained the required determination by the Commission was  limited to only those actions the employer and carrier took after Walls had exhausted her administrative remedies in April 2002.  The COA disagrees “[t]herefore, it was error to exclude all evidence of the employer’s and insurance carrier’s actions before April 2002.”  This ruling has no impact on the ruling vis-a-vis the employer but it does require reversal of the trial court’s dismissal of the insurer.

Briovacc LLC and Catamaran v. Transcript Pharmacy –  arbitration –  In 2009, Transcript sued Catalyst RX, the pharmacy-benefits manager for the Mississippi State and School Employees’ Life and Health Plan  for dropping Transcript from the State Plan.  Transcript sought an injunction, a declaratory judgment and money damages.  Briovacc intervened as a similarly situated plaintiff.  The agreements between Catalyst pharmacies contained arbitration agreements.  Catalyst moved to compel arbitration but withdrew the motion  to let the court decide whether MCA Sect.  83-9-6  applied in exchange for the pharmacies dropping their claims for money damages. “But Transcript and Medfusion RX expressly assured Catalyst RX that any later pursuit of their damages claims would happen in the arbitration forum.”  The trial court found in favor of Transcript and Briovacc on the declaratory judgment.  Meanwhile, Catamaran acquired Catalyst and  Briovacc.  Catamaran then sent out a letter on Catalyst RX letterhead to its customers nationwide  informing them their specialty pharmacy was changing and directing them to call for further instructions. It admitted that it erred in sending the letter to members of the State Plan since those members could still choose Transcript. Transcript amended its complaint alleging a conspiracy to steal its customers. Catamaran moved to compel arbitration.   “The court found Catamaran had waived its right to compel arbitration by participating thus far in the now three-year-old litigation. And the court found BriovaRX, as a third-partyto the Catamaran/Transcript agreement, had no right to enforce the arbitration clause found in that agreement. And because BriovaRX had no right to compel arbitration,  there was no reason to allow BriovaRX to amend its answer with a futile assertion of arbitration.”

The COA reverses:

 Unfortunately for Transcript, under these circumstances, we find it did not. Transcript cannot avoid the arbitration clause, even though it has only directed the arbitrable claims against BriovaRX, and not Catamaran. This is because the general rule that a non-signatory may not be bound by an arbitration contract has a “repeatedly recognized” exception. Sawyers, 26 So. 3d at 1038 (¶31). “[A] non-signatory may be able to enforce an arbitration agreement against a signatory where the non-signatory has a close legal relationship with a signatory of the agreement” and where the plaintiff alleges “substantially interdependent and concerted misconduct” between the signatory and non-signatory. Id. at (¶¶31-32) (citations omitted).

Leta Collins v. Kenneth Collinsmotion to set aside property settlement agreement  where both parties waived filing an 8.05 – Leta and Kenneth  were married in 1998 and filed for divorce in 2011.  A single attorney prepared the paperwork for an irreconcilable differences divorce and both signed a waiver of the requirement to file financial statements pursuant to Rule 8.05.   And the property settlement agreement contained a paragraph stating that both parties had disclosed their financial information to the other.  Apparently both filled out financial statements and gave them to their shared attorney but Leta never saw Kenneth’s 8.05.  A year and a half later,  Leta, who is now on food stamps, finds out her ex has a retirement account worth $420,000 and other investments totaling $116,000.  She files a motion to modify which the chancellor, after a hearing, denies. The COA affirms. “We conclude that, given the high burden on Leta and the deference owed to the chancellor’s factual findings, this judgment cannot be disturbed on appeal.”

Cardie Blackwell v. Howard Industries – sanctions for nonconforming brief (aka “ding, dong, Landrum’s gone”) –  – Blackwell was working for Howard Industries Inc. when he sustained a work-related injury to his left elbow. He got temporary total disability benefits, and Howard paid for Blackwell’s surgical procedure. After a disagreement regarding his treatment,Blackwell filed a petition to controvert.  Eventually the ALJ  found that Blackwell was not entitled to permanent and total disability benefits. Blackwell appealed. The full Commission affirmed.  In 2009, Blackwell appealed to the circuit court (Billy Joe Landrum). Howard successfully moved to dismiss Blackwell’s appeal because he never filed a brief with the circuit court. The circuit court issued a deficiency notice and gave Blackwell fourteen days to file a brief.  Blackwell filed a brief which Howard had stricken for failure to comply with MRAP Rule 28(a).   Blackwell appealed and the COA held that “a second notice of deficiency should have been sent to Blackwell and that lesser sanctions, rather than dismissal, would have been appropriate.” Blackwell v. Howard Indus. Inc., 98 So. 3d 463, 465  (Miss. Ct. App. 2012).  On remand, Howard filed a motion to strike Blackwell’s briefs because they failed to comply with  Rule 11 of the Mississippi Workers’ 2 Compensation Commission’s Procedural Rules. The circuit court agreed.  In its order, the circuit court also found that Blackwell’s notice of appeal did not reference the issues that Blackwell raised in his brief. The circuit court granted Howard’s motion to strike Blackwell’s briefs. In addition to the internet article that Howard moved to strike, the circuit court struck four other “internet articles and texts” that Blackwell attached as exhibits to his reply brief. After the circuit court struck Blackwell’s briefs and five articles that were attached as exhibits, Blackwell appealed to this Court which reverses again. “Neither the Mississippi Rules of Appellate Procedure nor the Uniform Rules of Circuit and County Court include a requirement to state “the grounds upon which the appeal is taken” in a notice of appeal.” “As for the circuit court’s decision to strike five articles that Blackwell attached as exhibits to his briefs, we note that workers’ compensation proceedings are ‘not bound by a strict adherence to the Mississippi Rules of Evidence.'”

Johnnie Wheeler v. State  revocation of parole –  Wheeler was on parole for a 1970 murder conviction, when, in January 2013, he pled  guilty on January 15, 2013, to felony shoplifting.  This resulted in the revocation of his  parole. On appeal, Wheeler argues that (1) his due process was violated because a clerical error existed regarding his name and birth date; (2) the parole board denied him a preliminary revocation hearing; and (3) the trial court failed to provide him notice of the date of his evidentiary hearing on his PCR motion. The COA affirms.

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