Decisions – COA – June 16, 2015

Maagen White v. Christopher White –  custody/false allegations of abuse – The Whites divorced in 2012 and had the court decide custody of their five year old son and four year old daughter.  Prior to the final decision,  Maegan filed a motion to suspend visitation, alleging that Christopher had inappropriately touched Harley.  The court suspended Christopher’s visitation and appointed a GAL to investigate.  Visitation was eventually restored but with supervision. The GAL’sreport later stated that Harley had told the GAL that her mother told her she could avoid returning to Christopher’s if she told people he had touched her private parts.  After a trial. the court awarded custody to Christopher.  There was not only the false abuse claim but Meagan testified that she lost one job as a nurse because she tested positive for Adderall and was fired even though she had a prescription.  The director of the facility, though, testified she tested positive for amphetamines and that he called to talk to her about it but she never returned his calls and was eventually fired for absenteeism.

The chancellor ultimately agreed with the GAL. In her order, the chancellor weighed the Albright factors, keeping in mind the polestar consideration of the best interest of the children. She found four factors to be in C.L.’s favor; one in Maegan’s favor; two in neither parent’s favor; and four to be in both parents’ favor.  The court also noted that it questioned Maegan’s credibility, as she was untruthful about dating other people and the termination of her job at Diamond Grove. The chancellor was unable to ignore the false allegations of molestation made against C.L., noting that Harley told the GAL that Maegan told her to say her father had touched her. Finally, the chancellor noted that all of these circumstances—the Albright factors, the credibility of the witnesses, and the GAL’s report—led her to find that [Christopher]  should be awarded custody of Garrett and Harley.

The COA affirms.

Joseph Bolden v. State various challenges to 15-year-old plea –  In 1998, Bolden pleaded guilty to sexual battery. He signed a petition and engaged in a colloquy with the court about his understanding of t he plea.  In  October 2013, Bolden filed a PCR motion  claiming, among other things, that  the court did not explain his right to appeal, that there were issues regarding his competence, that it was plain error for the prosecution to not prove the age of the victim, and ineffective assistance.  The court dismissed the petition as time barred. The COA affirms.

Cedric Brown v. Stateclerical errors in sentence – Cook was found guilty of one count of burglary of a dwelling and one count of simple domestic violence.  On appeal, Brown’s counsel filed a Lindsey brief.  The COA affirms but finds “clerical errors” and remands to have these corrected.  First of all, he was sentenced as an habitual even though he was not indicted as one and there was no proof of same.  Secondly, he was sentenced to six months in the custody of the MDOC for the domestic violence count.  “[H]owever, MDOC facilities are designated for persons convicted of felonies, not misdemeanors. See Miss. Code Ann. § 47-5-3 (Rev. 2011). Brown’s sentence for this misdemeanor should have reflected that his imprisonment would be in the county jail and not under MDOC supervision.”

Erika Felter v. Floorserv. – workers comp. –  Felter was injured in a car accident in March 2006  while working for  FloorServ. The issued an order awarding Felter compensation through August 30, 2006, when Felter reached her maximum medical improvement.  Felter appealed and the Commission and the COA found that her appeal was not timely.  The Miss.S.Ct. reversed and remanded the case to the Commission for a finding on the merits of her appeal. The Commission affirmed the AJ and the COA affirms the Commission.

Ervin King v. Sam Gale and New Jerusalem Baptist Churchprescriptive easement – King has owned a landlocked piece of property in Kemper County since 1974. He lives out of state but visits the property three to four times a year.  He would get there by either driving across Sam Gale’s property with his permission or park in the parking lot of New Jerusalem, hop the fence, and  walk across Gale’s property. Other times,  he would enter his property through land belonging to another neighbor, George Follet.  In 2004, King and Gale had a falling out so King  has crossed Follett’s property ever since.  In 2006, King sued Gale asking the court  to establish a boundary line between his and Gale’s properties and for  an easement by necessity or prescriptive easement across Gale’s land.  King amended his complaint to add Jerusalem Baptist – also seeking an easement.  The chancellor dismissed most of the claims via MRCP 41 but allowed the easement issue to go to trial.  He then ruled against King after the trial.  The COA affirms. “As to Gale, the chancellor found no clear and convincing evidence of even a road across Gale’s property—let alone clear and convincing evidence King had been using this road openly, notoriously, visibly, adversely, under a claim of ownership, exclusively, peacefully, and uninterruptedly for at least ten years.”  “Against Jerusalem Baptist Church, King likewise failed to prove by clear and convincing evidence his use of the church’s driveway and parking lot was under a claim of ownership and non-permissive (i.e., hostile). At most, King drove or parked on the driveway 8 four times a year. Given how the church parking lot was used, this was certainly not enough to assert a claim of ownership of an easement.”

Highland Colony Land Company v. Urban Planning Consultants –  contracts – Highland Colony hired consultant Gouras dba Urban Planning Consultants to assist in locating and obtaining federal, state, and local funding, including tax-increment financing (TIF), for real-estate development. TIF allows a real-estate developer to develop an area of a city, with the city paying a portion of the costs through increased tax revenues generated from the development. The contract entered into in 2003 called for Highland Colony to pay Gouras a $115-an-hour fee, as well as a bonus for any secured TIF funding. The contract also  provided for a bonus of  3% of the principal amount of funding secured if the funding exceeded $10,000,000 but  would not apply to the first $6,000,000 of TIF funding.  Gouras obtained TIF funding with the City of Ridgeland in the amount of $35,000,000.  Highland Colony ended up not paying Gouras his bonus on TIF funds that were placed in the Reserve Fund maintaining that he was not entitled to the bonus until Highland Colony got the money.  Gouras sued claiming that  Highland Colony owed him the balance due, $85,700.24, regardless of the fact that the money was in the  Reserve Fund.  The court granted summary judgment to Gouras.  The COA reverses and finds that summary judgment should have been granted to Highland Colony.  “The language of the contract is clear that the bonus provisions apply to funding that is actually obtained by Highland Colony.”

Home Base Litter Control v. Claiborne County severability clause – Home Base entered into a contract with Claiborne County for rural solid-waste-collection services. Claiborne County terminated the contract early, and Home Base sued for breach of contract and damages. The Claiborne County Circuit Court granted summary judgment in favor of Claiborne County, finding that the six-year eight-month contract entered into by the parties violated the six-year statutory maximum in M C A 17-17-5(1) (Rev. 2012), and that the County could not be found in breach of an illegal contract. The COA reverses finding that a severability clause saves the contract from being void and remands for damages.

Matthew Burnham v. Dana Burnham division of property and child support – the Court grants rehearing and this time affirms the chancellor’s ruling. Mathew and Dana were divorced.  Dana was awarded some $283,000 in marital assets, primary physical custody of the two children, and $600 a month in child support.  Matthew appealed arguing that the court erred in the amount of assets and child support it awarded and that it also erred in dismissing his supersedeas bond.  The court based the child support on Mathews’ income of $2600 per month but also found that he receives additional income from farming. However, there was no documentation of this additional income or evidence that he still receives it.  In its first decision, the  court reversed the child support award because it was more than 20% of Matthews’ income and there was no basis in the evidence to deviate from the statutory presumptions.  The court also reversed the division of marital assets finding that the chancellor allocated too much debt to Matthew and failed to take into account that while Dana had a job making $11 an hour, she had a college degree and could make more than that.

On  rehearing, the COA affirms.  “We find that substantial evidence supports the chancellor’s finding that Matthew could earn, and had earned, more than he claimed to be making, and that the property division, though unequal, was within the chancellor’s discretion because it was calculated to eliminate the need for alimony.”

2 thoughts on “Decisions – COA – June 16, 2015

  1. If counsel files a Lindsey brief but the court finds error sufficient to require correction, is that ineffective assistance of counsel?

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