Decisions – COA – Feb. 9, 2016

Christopher Lee v. MGM Resorts –  malicious prosecution -In 2008, Lee was at a bar in the Gold Strike Casino when he asked some other patrons for a cigarette.  One of the  men, John Mack Young, refused and began loudly cursing Lee. Lee went back to his table but said that Young continued to yell at him. Lee testified that he walked back over to Young’s table in an effort to calm him down. He testified that he also asked casino security officers for help. Eventually, security officers separated Young and Lee and told them both to leave and told  Young to leave first.  When Lee left after Young, he was assaulted by Young.  Security arrived and Lee claims he asked them to call an ambulance and they refused.  Instead they told both men to leave.  When Lee refused to leave, the  officers handcuffed him and took him to the casino’s security interview room because he refused.   They then pressed charges against Lee disturbing the peace and the sheriff’s office charged  Lee with disorderly conduct. The charges were dismissed in Justice Court and Lee filed suit against the casino for negligence, assault and battery, malicious prosecution, false imprisonment, and intentional infliction of emotional distress.  At the close of Lee’s evidence, the judge directed a verdict against him. Lee appeals arguing that the judge disparaged his evidence by calling it cumulative,  that the judge refused in giving a spoilation instruction, etc.  The court finds that since the case never went to the jury, it wasn’t error to not give a spoilation instruction.  The COA affirms.

Reginald Wallace v. Statevalidity of guilty plea – Wallace argued that his plea was coerced when the judge arrested him mid-plea for trifling with the court.  The COA holds that it can find no authority for such an arrest but there was no error since Wallace was there to plead guilty anyway.  It does remand for an evidentiary hearing on whether his attorney communicated a plea offer to Wallace.

Ronnie Roberston and Diane Robertson v. Jean and Jody Catalanottorestrictive covenants  – The parties bought property from Southpointe.  The deeds had restrictive covenants.  When the Robertsons started commercial logging on their property, the Catalanottos sued to enforce the covenants that precluded such activity.  The chancellor found the covenants enforceable.

On October 5, 2012, the chancellor entered its order finding and adjudging that the restrictive covenants ran with the land and that based upon the “four-corners test,” a full reading of the text showed that the restrictive covenants were “clear and unambiguous” and had not expired. The chancellor explained that although “all of the defendants (a vast majority ofthe propertyowners) testified that they no longer wanted the restrictive covenants to apply and only the [Catalanottos] wanted to continue to have the restrictive covenants in force,” the subject restrictive covenants required unanimous consent, rather than majority rule, to be changed.

The Roberstons appealed and the COA affirmed.

Christine Adams and Kevin O Neill v. The Tupelo Children’s MansionTermination of parental rights –  the parents lost their rights to their children because the mom had a meth problem.   The COA affirms.

Randolph Fancher v. StateDUI – Fancher got a DUI in Madison County.  He was stopped for speeding and weaving.  He told the cop he had been taking Nyquil for a cold and refused to take a breathalyzer.  He failed the HGN but the officer did not give him other field sobriety tests because he claimed he had problems with his ankles.  On appeal he argues that the refusal should not be used as substantive evidence of guilt.  He loses.

Kenneth Stallings v. Meeka Allencustody – Kenneth and Meeka had a son in 1994.   In May 2000,  Kenneth was determined to be Kendrique’s natural father and was ordered to pay child support, provide health and dental insurance, and pay all medical, dental, orthodontic, and eye-care expenses not covered by insurance.  In February 2014, Meeka filed a petition for contempt and request to modify child support  because he had failed to provide health and dental insurance for his son, and was not paying  other medical expenses not covered by insurance.  The chancellor modified Kenneth’s child-support payment from $300 per month to $509 per month and found him in contempt because he failed to provide dental insurance for his son.  Kenneth appeals and the COA affirms.

Barry Mabus v. Mueller Industriesworkers comp – Barry Mabus injured his lower back while working at  Mueller Industries on December 1, 2004.  He had disc herniation  surgery on his back on  May 4, 2005, and was released to return to work  on August 11, 2005 with a permanent impairment rating  of eight-percent  to the body as a whole, a 70 pound weight restriction.  Mabus went back to work and claimed he reinjured himself.  He was seen by a new doctor who found that Mabus reached  MMI on July 14, 2008, with a PPI of thirteen-percent  to the body as a whole and no work restrictions. Mabus then began working for himself.  His request for further medial treatment and damages for permanent loss of wage earning ability was denied by the ALJ.  His request to recuse the ALJ was also denied.  The Commission affirmed.  Mabus appealed. The COA affirms.

In The Matter of The Estate of Elva Mae Hemphill, Deceased: Gloria Swank, Administratrix of The Estate of Elva Mae Hemphill, Deceased v. Geraldine W. Covington, Larry D. Ferris and Catherine H. Ferris –   Elva Mae Hemphill died in 2010 at the age of 99.  She did not have a will but had five CDs and a checking account. She had invested in CDs for years and intended to use joint ownership of CDs as an estate planning tool.  She had named three of her sisters as joint owners of her various CDs and savings account. In 2007, though, she  signed a power of attorney  appointing her niece Geraldine Covington and the husband of another niece Larry Ferris as her attorneys-in-fact.  Through a variety of transactions, by the time ELva Mae died,  Geraldine and the Ferrises were named as joint owners of the checking account and all of the CDs that Elva Mae owned at the time of her death.

Another of Elva Mae’s nieces, Gloria Swank, was appointed administrator of her estate and, on behalf of the estate, filed suit against Geraldine and the Ferrises alleging undue influence.    The chancellor held that the proper parties with standing to challenge the transactions related to Elva Mae’s CDs after the date of execution of the POA were the joint tenants on those accounts who survived her death and dismissed much of the case  on the grounds that the estate lacked standing.  The COA reverses on this issue, affirms the chancellor’s finding that Catherine and the Ferrises were in a  confidential relationship with Elva Mae, and affirms the ruling that Geraldine violated the terms of the POA by making herself and the Ferrises joint owners of the one CD still at issue.

Elliot Jackson and Nicole Jackson v. UMMC med mal – Jackson was a patient at UMMC’s dental school.  After a November 10, 2010, appointment, he was given a prescription for vicoprofen for pain.  Jackson was to have several teeth extracted on December 1.  He ended up taking the vicoprofen that day instead of the ativan he was prescribed.  He told UMMC personnel about the medication.  His teeth were extracted. Afterwards, on his way to the desk to schedule his next appointment, Jackson fell backwards and hit his head.  He was taken by ambulance to the ER where he was diagnosed with a subdural hematoma.  Prior to trial, UMMC refused to provide the accident report to the plaintiffs but finally gave it up a month before trial.  Based on the delay and UMMC’s alleged misrepresentations concerning the report. Jackson moved for a default judgment or for a ruling that  the failure to timely produce result in an adverse inference.  On the first day of the bench trial, Jackson brought up his motion.  The court refused to grant a default but stated  “I’m cognizant of my jury instructions, as trier of fact, you know you have the right to assign such weight and credibility to the testimony of each witness that’s testified, and I’m certainly going to exercise that, and, basically, that’s what you’ve asked me to do.” The trial court eventually issued an opinion finding for UMMC. Jackson appeals. The COA affirms.

Greg Canerdy v. Ron Montgomery post trial motions – Canerdy assaulted Montgomery when Montgomery was in Canerdy’s yard to read the meter.   In 2004, three months after the assault Montgomery filed a complaint against Canerdy in the Tippah County Circuit Court.  When Canerdy failed to answer,  Montgomery obtained a default judgment for $200,000 in actual damages and $200,000 in punitive damages.  Canerdy became aware of the default judgment when a writ of garnishment was served on his employer in June 2005. He filed for bankruptcy but the court deemed the claim nondischargeable.

In  2011, in the Tippah County Circuit Court, Canerdy filed a “Motion to Correct or Amend Judgment” under Mississippi Rule of Civil Procedure 60(b) attacking the punitive damages.  The court denied the motion.  Ten days later, Canerdy filed a timely “Motion to Reconsider” which was also denied.  Canerd filed a “Rule 52 Motion for Additional Findings” arguing it was error to award more than the complaint asked for.   On May 20, 2014, the circuit court denied Canerdy’s Rule 52 motion as “untimely and improper.” On June 17, 2014, Canerdy filed a notice of appeal. The COA affirms.

Canerdy did not file his Rule 52(b) motion until his first post-judgment motion (his motion to reconsider) was denied more than eight months “after entry of judgment.” Therefore, Canerdy’s Rule 52(b) motion was not timely and did not toll the time for filing of a notice of appeal. It follows that we lack jurisdiction to review the circuit court’s judgment denying Canerdy’s Rule 60(b) motion. At most, we have jurisdiction to review the circuit court’s order denying Canerdy’s Rule 52(b) motion. That ruling was correct, so we affirm.

Pro se pcr appeals affirmed:

William Lee Madden v. State

Jerry Maurice Alford v. State

Jessie Beal v. State

Albert Hicks v. State

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