Decisions – COA- July 21, 2015

Corey Gray v. State proof of value of stolen property – Gray was convicted of grand larceny and sentenced to ten years for stealing a boat after the boat’s owner spotted him in  a truck pulling her boat.  Gray fled rather than appear for trial. On appeal he claims that the evidence was insufficient to support his conviction because the state did not prove the boat was worth more than $500. The COA affirms.

Here, Gray argues that the State’s only evidence as to the value of the stolen boat consisted of Stevens’s testimony of the purchase price of the boat and trailer and 5 her testimony as to the working condition of the boat and trailer when theywere stolen. Gray maintains that no evidence existed regarding the physical condition of the items or their market value on the day they were stolen. As a result, Gray argues that the jury should not have been allowed to speculate on the market value of the boat at the time the item was stolen.

In Thompson v. State, 910 So. 2d 60, 63 (¶10) (Miss. Ct. App. 2005), this Court found that since the stolen property at issue “tend[ed] not to decline in value,” the purchase price was “credible evidence that would support a grand larceny conviction.” Unlike the stolen property in Thompson, which “tend[ed] not to decline in value,” Gray submits that the price Stevens paid for the boat failed to account for depreciation in value for normal wear and tear, or for that matter, abnormal wear and tear. Gray asserts that without testimony regarding the general rate of depreciation for boats, the jury was left to determine whether a boat could depreciate from $4,500 to less than $500 in 14 years’ time, with no evidence to guide its decision.

Clay Necaise v. City of Waveland –   firing of police officer – Necaise was a police officer for the city of Waveland for two years.  In October, 2010, he was fired after a fellow officer “alleged that, while on patrol duty on July 22, 2010, Necaise abandoned his responsibilities and had sex with [the officer’s fiance].”  The fiance admitted to having had sex with Necaise while he was on duty. Necause claims his firing was without cause.  The COA affirms.

Humphreys County Hospital v. Debra Griffin contract with public entity –   Debra Griffin was the administrator for Humphrey County Memorial Hospital from 1992 pursuant to  a series of contracts the last of which was executed on January 1, 2007.  Notwithstanding that Ms. Griffin was under contract, the Board terminated her in January 2007.  Her contract entitled her to severance pay even if terminated for cause unless she was found guilty of a felony, died or resigned.  The circuit court found that she  was entitled to severance and awarded her  $115,007.27.  Humphreys County argued there was no valid contract. The COA affirms. “Although the contract in its entirety was not read into the board’s minutes, both parties 5 were aware of the requirements of the contract, particularly with respect to the severance-pay provision.”

Denise Pratt v. Nanette NelsonRule 65 estraining order – Pratt had a falling out with her family following her mother having requested that she pay her brother’s legal fees.  The court issued an order restraining Pratt from  from contacting Nanette Nelson (her sister), Sylvia Moffatt (her seventy-year-old mother), and Isabella Nelson (her niece and Nelson’s four-year-old daughter), or coming within 1,000 feet of them.  The court denied the restraining order requested by Pratt. Pratt argues that the Court erred in issuing a Rule 65 retraining order.  Nelson agrees but argues that the court should have issued a a Domestic Violence protective order.  Since both sides agree, the COA reverses.

Averitt Express v. Kevin Collins –  workers comp for injury during pre-employment testing – Collins applied for a position as a truck driver with Averitt.  To qualify for a job, he had t o pass a road test.   Collins injured his  knee attempting to enter and exit the trailer during the job function test.  Averitt paid Collins a per diem of $75 for attending the first day of orientation but refused to provide workers comp insurance for his injury.  The AJ and the Commission awarded compensation.  The COA affirms.

Kimberlee Williams v. Liberty Mutual and Lindsey Staffordpersonal jurisdiction/forum non conveniens –  Kimberlee Williams filed suit against Lindsey Stafford  for damages stemming from an automobile accident that occurred in Tennessee.  She later joined Liberty Mutual Fire Insurance Company.  The circuit court dismissed  Stafford with prejudice for lack of personal jurisdiction and  and without prejudice as to Liberty Mutual under the doctrine of forum non conveniens.  Williams argues that the court had personal jurisdiction over Stafford because she lived in Mississippi at the time of the accident.  The COA holds that domicile is determined as of when the complaint is filed.  The trial court was correct to dismiss the case against Stafford but the dismissal should have been without prejudice.  As for the suit against Liberty Mutual, the COA reverses the dismissal since Williams lacked an alternate forum in which to file her suit due to the expiration of the statute of limitations

David Glass Nunnery and Jene Nunnery v. Paul Edward Nunnery and Glenda Nunnery as co-executors of the Estate of Joseph Nunnery –  extension of time to file notice of  appeal –  This was a land dispute.  A final judgment was entered on June 20, 2012.  Davis and Jene Nunnery filed a motion for reconsideration on June 29, 2012.  On October 1, 2013, the Court denied the motion. On  November 19, 2013, filed for an extension of time to file their notice of appeal on the grounds their attorney’s brother had been  injured in a car wreck  and placed on life support in North Carolina.  The brother eventually died.  At the hearing on the motion, the attorney stated he learned of the car accident on October 22, 2013, when he still had eight days to file the notice of appeal. The chancellor denied the motion for an extension. The COA affirms.

Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166, 169 (¶13) (Miss. Ct. App. 1998) (citation omitted). In this case, twenty-one days elapsed between the entry of the final judgment and counsel’s brother’s accident. A notice of appeal could have been filed within those twenty-one days, and counsel has not provided an explanation as to why that was not possible. Moreover, counsel’s statement that after learning of his brother’s accident, he was not paying attention to his law practice and did not feel like he needed to pay attention to the demands of his law practice is very telling. It certainly does not suggest excusable neglect. Although this Court understands the emotional distress that one must feel upon losing such a close relative, we cannot find, on these facts, that the chancery court abused its discretion in denying the Nunnerys’ motion for an out-oftime appeal. Therefore, under our standard of review, we are compelled to affirm.

Arthur Mamiaro, Jr. v. Marketa Mamiaro –   division of marital property/alimony  – The Mamiaros were married almost 11 years when Arthur filed for divorce.  After a trial  the chancellor distributed the couple’s marital property in equal portions and awarded Marketa permanent alimony. On appeal, Arthur argues the following: (1) the chancellor erred in his determination of the marital estate by failing to classify as marital property a $1,000 savings account maintained by Marketa; and (2) the chancellor erred in awarding Marketa permanent alimony. The COA affirms.

Sanderson Farms v. Tanya Jessie – the Court denies rehearing but substitutes its opinion.

PCRs affirmed. 

William Sevell v. State 

Scooter Robinson v. State

Tommy Vitella v. State 

Ricky Gavin v. State

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