Decisions – COA – Oct. 6, 2015 – part 2

Jennifer Carter v. Josh Carter    whether  GAL required  in custody modification –   Josh and Jennifer  divorced in Rankin County in 2011, and Jennifer got custody of their one child Delaney.  In May 2012, Josh filed a complaint for modification which alleged a material change in circumstances that had adversely impacted Delaney.  It did not specify what the changes were.  an attorney was appointed to investigate and she determined that  Jennifer was living in a extremely dilapidated mobile home.  The chancellor found the home to  be “shocking,” “squalid,” and “dangerous.” The chancellor found a change in circumstances and gave Josh primary custody.  On appeal Jennifer argues that the court erred in not appointing a GAL.  . Neither party ever asked the chancery court to appoint a guardian ad litem.  While the law requires a GAL be appointed where there are  allegations of abuse or neglect,  in this case Josh did not  expressly accuse Jennifer of neglecting Delaney.

Hudspeth Regional Center v. LInda Mitchell –  workers comp. – Linda Mitchell worked for the r Mississippi State Hudspeth Regional Center. In September 2011, she sustained an injury to her back. She  continued to work for Hudspeth until she was terminated for cause in June 2012. She did not appeal her termination. In October, 2012, Mitchell filed a petition to controvert alleging  disability due to injuries she suffered  in September  2011.   The ALJ awarded Mitchell permanent disability benefits along with medical benefits and penalties. The ALJ’s order was affirmed by the Commission.  Hudspeth appeals arguing the decisin was not based on substantial evidence.  The COA affirms.

Percy Tate v. International Paper –  workers comp – Tate started working for International Paper  in 1974 doing several jobs all involving  manual labor.   Beginning in May 2000, Tate  visited Magnolia Clinic for shoulder pain. Over a period of ten years, Tate visited the clinic off and on to seek treatment for pain and numbness in his left shoulder and was diagnosed with arthritis and degenerative-disc disease.  He was later  diagnosed with rotator-cuff tendinitis.  In 2011, he was found to have a herniated disc and underwent surgery.  Although Tate received short-term disability after his May 2011 surgery, he did not file that disability claim through International Paper.  He did not seek disability from International Paper until October 2011, after his insurance denied his request for long-term disability.  International Paper denied benefits and Tate filed a petition to controvert. The ALJ found that the two-year statute of limitations did not preclude Tate’s claim and that Tate suffered compensable, work-related  injuries and awarded Tate workers’ compensation benefits from May 11, 2011, until his maximum medical improvement.  The Commission reversed the AJ’s order finding that  Tate failed to meet his burden of proof in showing a causal relationship between his work and his injuries. The Commission  but did not address the statute-of-limitations issue. Tate appealed and the COA affirms  finding that “Tate could not meet his burden of proof in showing he suffered compensable, workrelated injuries requiring his employer to pay workers’ compensation benefits.”

Tommy Ames v. State –  Ames flagged down a car driven by an acquaintance.  He discussed something with his acquaintance then got  in the car and shot two people in the car who managed to live.  Ames was convicted of two counts of aggravated assault and sentenced to two twenty year sentences to be served consecutively.  One of the victims, Johnson, testified at a hearing to revoke Ames’ federal probation.  At the time of Ames’ state trial,  Johnson could not be found and the state was allowed to use his testimony at the revocation hearing.  “Ames highlights the fact that the State failed to issue a subpoena for Johnson and insists that Johnson’s prior testimony should not have been admitted during trial.”  The COA examines the efforts made by the state to get Johnson to trioal and finds that the trial court did not abuse its discretion.   Ames also argues that his right to a speedy trial was violated because of the 1,995-day delay between his arrest by federal marshals and the trial.  THat issue meets its usual fate.  Ames’ conviction is affirmed.

Fredrico Stone v. State –  selection of alternate jurors –  Stone was convicted of possession of cocaine and sentenced as an habitual  to sixteen years  and to pay a $250,000 fine. Stone had been stopped for speeding.  As the officer questioned Stone, she noticed he had something plastic in his mouth.  The plastic turned out to contain cocaine.  On appeal he argues that the court erred in how it picked alternate jurors.  Fourteen jurors were selected.  Prior to the submission of the case to the jury, the trial court selected two names out of a cup and designated those two names as the alternate jurors. These two alternate jurors were then excused.   The COA notes that Stone failed to object at trial.  Stone next argues that he should have gotten a circumstantial evidence instruction.   The COA finds that the case was not entirely circumstantial and thus the instruction was not warranted.

Miriam Hopkins et al v. City of Mendenhall –   City’s closure of street – The First Baptist Church of Mendenhall filed a petition  seeking to close East Court Street.  Miriam Hopkins and others objected. . A public hearing was held on April 26, 2010, and both proponents and opponents of the proposed street closure were provided the opportunity to debate their positions. The City voted for closure.  Hopkins appealed and the circuit court affirmed. On appeal to the Court of Appeals, the court found that the record was insufficiently developed and remanded the case.   “The Board determined that the factual basis for closing the portion of East Court Street was the safety of the citizens of Mendenhall that attend functions at the Church or the Church’s Family Life Center. On September 20, 2013, the City filed the Board’s findings of fact in circuit court. The circuit court considered the matter and entered  an order that upheld Ordinance.  The COA affirms.

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