Decisions – COA – March 1, 2016

 

Roland Weeks v. Deborah W. Weeks attorneys fees – The Weeks divorced in 1992 after  14 years of marriage.   In Weeks v. Weeks, 832 So. 2d 583 (Miss. Ct. App. 2002), the Court found that the chancery court had erred in not awarding Deborah alimony after she had been given about a third of their considerable marital assets. The chancery court subsequently ordered Roland to pay approximately $3,900 per month, between periodic alimony, health insurance, and life insurance. In Weeks v. Weeks, 29 So. 3d 80 (Miss. Ct. App. 2009), the Court  remanded  for the chancellor to reconsider aspects of the child support and attorney’s fee awards. The instant appeal started with Roland’s motion to reduce his alimony obligation; Deborah’s  motion to pursue the child support and attorney’s fees previously remanded; and Deborah’s  motion to set aside a 2006 order denying an upward modification of alimony, which she claimed was induced by a fraud on the court.  The chancellor denied Roland’s motion to reduce his alimony obligation, awarded back child support to Deborah, but denied her request for attorney’s fees and denied Deborah’s motion to set aside the 2006 order.  The court affirms except for: the court should have awarded Deborah  interest on the unpaid child and the chancellor  erred in finding she was able to pay that portion of her attorney’s fees accumulated prior to Weeks 2 II.  The case is remanded for the chancery court to determine the appropriate amount of those attorney’s fees.

Robert H. Hardin, Jr. v. Betty Grantham (Hardin) – termination of alimony – The Granthams divorced in  1991 after a fourteen-year marriage.Betty was awarded Betty $750 a month in permanent  alimony. In April 2013, Robert stopped making his alimony payments to Betty. The next month,  filed a petition to terminate or modify his alimony payments claiming  a decline in his business income  warranted a modification or termination of alimony. After a hearing, the court found that Betty was a credible witness and that “Robert lacked candor and provided answers that were both evasive and inconsistent.”  The chancellor denied the motion.  The COA affirms.


Andrew Graham, Jr. v. State of Mississippi possession of a controlled substance in a correctional facility – Graham was an inmate at the Lincoln County jail when he was found to have marijuana in his possession.  He was charged with possession of a controlled substance in a correctional facility as well as with conspiracy (he was spotted with another inmate reaching under a gate as if to retrieve something; a subsequent search revealed the marijuana). He was convicted of the conspiracy charge and given 5 years without parole as an habitual. On appeal he argues that the indictment was defective.  The COA finds this issue waived.  He also argues sufficiency of the evidence which he also loses.

Davis Davenport v. Hertz Equipment Rental Corporation – substitution of parties In May  2009, Davenport sustained on-the-job injuries after a raised “man buggy” that he was in fell to the ground and , landed in a trash bin. Almost three years later, Davenport filed a complaint against  (1) JKS Construction Inc., a subcontractor of the general contractor Dynamic Services Inc.; (2) Dynamic Services Inc.; (3) RSC Equipment Rental Inc., which later became United Rentals; and (4) John Doe Corporations 1 and 2. At the time of Davenport’s original complaint, he alleged that the John Doe Corporations were strictly liable for negligently distributing and/or manufacturing the man buggy or its component parts.  Three months later, Davenport moved to substitute Hertz for one of the John Does after learning that Hertz owned the man buggy.  The trial court granted it.  Once Hertz was served it filed a motion to dismiss arguing that substitution was improper and that the statute of limitations had run. The trial court denied it but later granted Hertz’s motion for summary judgment on the same theories.  In 2013, Davenport tried to substitute Terax, the manufacturer of the man buggy,  for another John Doe.  The trial court denied the motion.  Davenport appeals and the COA affirms.

Tom Brown and Shannon Brown v. Murray Waldron d/b/a Waldron Properties, LLCdefective home –  The Browns purchased a house in 2006. In 2011, they noticed cracks in the walls. An engineer determined the cracks were  caused by a defect in the construction of the foundation system and footings. Murray Waldron  was the builder of the defective home and individually signed the New Home Warranty, a contract which was delivered to the Browns at closing.  The Browns notified  Waldron of the cracks and given an opportunity to cure which he did not do.  The Browns filed suit.   At the time of suit, Waldron’s former single-member limited liability company – Waldron Properties, LLC – was non-existent, having been dissolved by the Mississippi Secretary of State in 2009.    The trial court granted summary judgment for Waldron.  The Browns argue that it was error to allow Waldron to reinstate a defunct LLC to avoid liability.  The COA affirms.

Albert Husley, Jr. v. Fountainbleau Management Services and American Home Assurance Company workers comp – In early 2009, Husley started work as an apartment-complex maintenance person for Fountainbleau in Tupelo, Mississippi.  In March  2009, he  aggravated his back while helping unload a roll of carpet. In 2010 he filed a petiution to controvert. The AJ found that the incident in  March 18, resulted in a temporary exacerbation of a preexisting condition, which was more significantly aggravated by injuries sustained in 2010, while Husley was working for a different employer and found that Fountanbleu was not liable.  The COA affirms.

Brandon Smith and Kimberly Wolfe Smith v. Milton Martin and Geneva Martin –   visitation for grandparents –   After the parents divorced, the father committed suicide. The mother remarried and her new husband adopted her two sons.  They allowed the paternal grandparents visitation but stopped it after it appeared the grandparents were displeased with the adoption and alienating the two boys from their adoptive father. The grandparents sued for visitation which the court granted.  The parents have appealed. The COA affirms.

Kenneth Moreland v. Brandi Moreland Greenwood Spearsmodification of visitation –  The Morelands were divorced in  2012.  They agreed that Brandy would be the custodial parent of their one child and that Ken would have liberal visitation, and alternate the years Ken and Brandy could claim Lauren as a dependent on taxes. A year later  Brandy filed a petition to hold Ken in contempt for failing to pay his half of Lauren’s tuition and activity expenses. She also sought  full legal custody, a change to the visitation schedule, and a mental evaluation of Ken claiming that he had OCD. Ken argued he had mild anxiety and to the extent thatthe kid was late to school, both parents were at fault.  The chancellor modified custody and Ken appealed.  The COA reverses.  “The chancellor’s finding that the visitation schedule did not work and his failure to make a finding of the best interests of the child were manifestlywrong. Therefore, this Court reverses the chancellor’s modification and reinstates the original visitation schedule.”

Gerald Bailey v. The Estate of Jerry Ann Barksdale, Deceasedlack of a final order – Jerry Ann Barksdale died in 2012.  Stuff happened including the administrator’s filing a petition for Gerald Bailey to return property.  Bailey was alleged to have gotten a power of attorney from Barksdale and used it to conert some of her assets. A thirty day summons was served.  Gerald claims he was never served.  The chancellor ordered that an inventory take place and that Gerald return assets. Later the chancellor awarded the estate a default judgment against Gerald. Eventually Gerald appeared and testified and the court refused to rescind the default judgement and found that the estate was entitled to $158,846.  Gerald appealed. The COA dismisses the appeal for lack of jurisdiction. “Here, the estate’s petition made a claim for attorney’s fees against Gerald. After a trial, the chancellor expressly refrained from ruling on the attorney’s fee claim until “the close of the estate.” Thus, the estate’s claim for attorney’s fees is still pending before the chancellor. The judgment is not a final, appealable judgment.”

 

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