Decisions – COA – Nov. 10, 2015 -part one

Michael Molleston, M.D. v. River Oaks –  denial of hospital privileges to a neurosurgeon –  Dr. Michael Mollestonargues that River Oaks violated his due process rights in doing so.  Dr. Molleston practiced neurosurgery in Hattiesburg from 1995 until he moved to Jackson in 2011. He was granted privileges at CMMC but River Oaks denied him.  When his application was denied, he was entitled to a hearing pursuant to the hospital bylaws.  The members of the committee were to be doctors not in direct competition with Dr. Molleston.  Dr. Molleston argues that the case against him was presented by Dr. John Davis, a direct competitor and that on the Committee was Dr. Walter Shelton  who “was or would soon be in direct economic competition to Dr. Molleston as a result of his group’s hiring of Dr. Graham C. Calvert, a fellowship trained spinal surgeon.”  The COA reverses finding that “River Oaks violated Dr. Molleston’s due-process rights and its own bylaws when it allowed a physician to actively participate in two stages of the administrative process. ”

Della Sumrall and Roy Sumrall v. Singing River Health System nursing malpractice – Della Sumrall was admitted to Ocean Springs Hospital on  February 23, 2012, with cholecystitis (inflamation and/or irritation of the gallbladder).  It was decided that her gallbladder would be removed.  The anesthesiologist placed a  central line  in the external jugular vein. She was scheduled to be discharged on February 29.  On that day, the nurse removed the central line after which Della suffered a “neurological event” (defendants call it a stroke; plaintiffs call it an embolism)  resulting in brain damage.  Della and her husband sued.  The Hospital maintains that Della had other conditions which made her at high risk for stroke  (she  had high blood pressure, was a heavy smoker, suffered from diabetes, high cholesterol, and chronic obstructive pulmonary disease).  Plaintiffs contend that the stroke was from an embolism due to the negligent removal of the central line.  After a bench trial (Tort Claims Act), the court found for the defendants. On appeal, plaintiffs claimed the court erred in allowing Dr. Jim Corder to testify about the standard of care for nurses performing a central line removal because he was “not designated, not qualified, and not tendered as a nursing expert.” Plaintiffs also argued that “The trial judge erred in requiring Plaintiffs to prove their case by overwhelming proof rather than by a preponderance of the evidence” and that the trial court’s ruling for the defense was against the overwhelming weight of the evidence. The COA reverses finding that it was error to allow Dr. Corder  to testify that “there is no national standard of care” for patient positioning for the removal of a central line when that opinion had not been disclosed. It was also error to allow Dr. Corder to testify that in his opinion she had a stroke when that was not disclosed.

Antonio Vashon Smith v. State –   revocation for violation of probation –  Smith pleaded guilty to fondling in 2006.  He was sentenced to ten years with all ten suspended and five years  of supervised probation.  He was then repeatedly revoked for failing to register as a sex offender. The last hearing was in  September 2009 wherein the court found  he had violated probation and orderd him to serve the remaining of his suspended sentence.  In December  2012, Smith filed a PCR motion alleging various grounds for relief.  The circuit court summarily denied it.  On February 26, 2013, the circuit court held that it was time barred and meritless.  Smith appeals arguing the  (1) the second revocation hearing subjected him to double jeopardy; (2)  he was entitled to an evidentiary hearing; (3) and  he was denied effective assistance of counsel.  The COA affirms.

Roger Lynn Neely v. Kaleb Neely Welch –  natural parent presumption –  Holly Jennings Neely died at the age of 20 from complicatinof childbirth.  Her baby also died.  Holly had a two year old daughter from a past relationship.  Holly’s husband (the child’s stepparent) and the natural father fought for custody.   “The chancellor observed that both men, as well as their families, clearly loved Riley verymuch. Ultimately, the chancellor granted Kaleb physical and legal custody and granted specified visitation to Riley’s maternal grandparents. Roger was awarded neither custody nor visitation. While the facts of this case are heartbreaking, the law that governs them—in particular the natural parent presumption—is clear, and the chancellor applied it correctly. Accordingly, we affirm.”

Joseph Johnson v. State –  various issues with guilty plea – Johnson pled guilty to gratification of lust in 2009. He attempted to appeal his guilty plea, but his appeal was dismissed as untimely. He then filed a pcr motion in the trial court which was denied in 2010. In 2012, Johnson sought to file a late appeal from the denial of his PCR motion, which was ultimately denied, and that denial was affirmed by the COA.  While the  appeal was pending, Johnson  filed in the circuit court a “Motion for House Arrest.”  The circuit court denied it in September 2014.  On appeal, “Johnson does not argue that the circuit court should have granted his motion for house arrest. Instead, he tells his side of the story of the underlying crime – he claims that he had an alibi at the time of the offense and that the prosecutrix accused him because he would not give her money to buy drugs. He also alleges that his defense attorney convinced him to enter an open plea with the promise of a lenient sentence.”  “But because none of these issues were raised in the motion in the circuit court from which Johnson appeals, they are procedurally  barred on appeal.”

Simon F. Weir, II and Sarah F. Weir, II v. Crye-Leike of Mississippi  –  real estate sales commission  disputeIn July, 2011, the Weirs had their home for sale by owner. A real-estate agent at Crye-Leike had a client, John Scallions, interested in the Weirs’ home. Maness called Simon Weir and asked if she could show the house to her client. Simon agreed. Maness showed the house to Scallions that same day.  The Weirs then entered into an “Agreement to Show Unlisted Property” with the realtor where Maness. Under the agreement, the Weirs allowed Maness, as a Crye-Leike affiliated licensee, to show the Weirs’ real property for potential sale to Scallions. The agreement provided for payment of a commission of 3% of the sales price upon the sellers and the buyer entering into a Purchase and Sale Agreement. The contract specifically provided that “[s]hould Owner(s)/Seller default in any purchase and sale or transfer agreement to Purchaser(s), the commission shall remain due.”  Scallions offered to purchase the Weirs’ home for $268,900 but the agreement  was contingent upon the appraised value of the house meeting or exceeding the agreed purchase price. The Weirs tendered a signed counter-offer of $269,900. Scallions accepted and signed off on the counter-offer. The Weirs ending up refusing to go through with the sale and refused to pay the commission.  The realtor filed suit and was granted summary judgment.  The COA affirms.

Pro se PCRS affirmed

Deriera Magee v. State

James Donald Burkhalter v. State

Paul F. Jones v. State

Elroy Kennedy v. State 

Bradford Byrd v. State 

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