Decisions – COA – March 29, 2016

Derrick Johnson v. State of Mississippi – cross-examination –  Johnson was convicted of capital murder and sentenced to life.  On appeal he argues that he should have been permitted to cross-examine ex-JPD officer William Waples (one of two officers who took Johnson’s confession; the other officer died)  regarding  on allegations that he had taken bribes.  The COA finds that the refusal to allow cross examination on this topic was not error.

Waples testified that he resigned from JPD because he did not want to be reassigned. He also testified that the district attorney wanted to meet with him to discuss an unspecified “investigation.” Waples assumed that the investigation related to the bribery accusations, but he did not know that, and he had not met with the district attorney at the time of trial. Waples had not been arrested, charged with any crime, or received any kind of 3 document setting out any allegations against him. The court concluded that the possible bribery allegations were not related to Waples’s testimony about Johnson’s confession and granted the State’s motion in limine.


Betty Carol Taylor v. Mississippi Environmental Quality Permit Board and Robert Curtis Errington – zoning ordinance –  Robert Errington was granted a variance by MDEQ  from the siting criteria  for the operation of a poultry farm. His sister who was also his neighbor Betty Taymor opposed the variance and appealed. The COA affirms.

Deliah Colyer, as Natural Mother and Next Friend of Marshuan Braxton, Deceased v. First United Methodist Church of New Albany  – negligent supervision – In June 2009 Braxton was on a mission trip to Costa Rica to construct a church. Braxton was the biological son of Deliah Colyer but lived with his grandmother who had been given custody.  The grandmother signed a release prior to Braxton going on the trip. Once in Costa Rica, while traveling to the work site, the group stopped at a scenic beach.  While Braxton and two others were near a large rock formation, a large wave crashed  into them and knocked them into the ocean.  Two of them managed to swim ashore but Braxton drowned. The Church moved for summary judgment arguing that it was not aware of the danger and the Braxton’s custodian  had signed releases.   The trial court granted the motion and Colyer appealed. The COA reverses.

[O]ur supreme court has held that adequacy of supervision is a question for the jury. Summers v. St. Andrew’s Episcopal Sch., 759 So. 2d 1203, 1215 (¶¶48-50) (Miss. 2000); see also James v. Gloversville Enlarged Sch. Dist., 548 N.Y.S.2d 87, 88-89 (N.Y. App. Div. 1989). Therefore, regardless of Braxton’s age, a jury must decide what constitutes proper and adequate supervision. See Todd v. First Baptist Church of W. Point, 993 So. 2d 827, 829  (Miss. 2008).  There are also disputed facts regarding whether it was reasonable to expect Amanda to give Braxton warning after she witnessed her husband being knocked down by a wave. 


Cheryl Ogunbor v. Maleisha May et al. –  stalking –   Cheryl Ogunbor sued Sears and a number of its employees claiming that, after she purchased some patio furniture, “a female Sears employee sexually harassed her by visiting her house once, driving past her house a few times, looking at her while she was at Sears, and texting her less than ten times. Ogunbor alleged that Sears was vicariously liable for its employee’s behavior. But Ogunbor failed to serve some of the defendants with process within the 120-day deadline. And Sears successfully moved for summary judgment because its employee’s conduct was not within the course and scope of her employment. Ogunbor appeals.”  The COA affirms.

Francis Tucker v. Delta Regional Medical Center sanctions for failure to cooperate in discovery – Frances Tucker filed suit against Delta Regional Medical Center claiming the hospital was liable for the wrongful death of her son, Kendrick Tucker.  DRMC attempted to obtain discovery from Tucker but after several futile attempts, filed a motion to dismiss the case with prejudice. The trial court set a hearing on the motion. When Tucker repeatedly failed to respond to the discovery requests and did not appear at the hearing, the trial court granted DRMC’s motion. Tucker appealed.  The COA  affirms the dismissal but reverses and renders the judgment as a dismissal without prejudice.

Cynthia Kuljis v. Winn-Dixie Montgomery, LLC bill of discovery –  Kuljis was shopping at  Winn Dixie when  she tripped over a piece of protruding rubber which was intended to hold down the carpet. Kuljis claims that she suffered permanent injuries as a result of the fall. She  filed a complaint for discovery in the chancery court requesting  incident reports, photographs, video surveillance, investigation reports, work orders, witness statements, etc.  Winn Dixie filed a motion to dismiss, which was granted by the chancery court.

    The chancery court agreed that it is not precluded from granting substantive relief through a complaint for discovery. However, the chancery court held that in order to do so,  Kuljis was required to prove that the information she was seeking could not be obtained by other methods and it was “not within the reasonable reach of [Kuljis] to obtain the information without the aid of the discovery demanded.” (citing V.A. Griffith, Mississippi Chancery Practice § 429, at 424 (2d ed. 1950)).
     Upon reviewing the arguments of both parties, we find that the chancery court was correct in dismissing Kuljis’s complaint for discovery. This is a negligence claim that should have been brought in the circuit court instead of the chancery court. Accordingly, we affirm the ruling of the chancery court.



Brenda Franklin v. Cornelius Turner d/b/a Golden Age Apartments premises liability –  Franklin sued the Defendants claiming that on January 20, 2012, the caretaker of the apartments, Robert Swinney,  came to her apartment claiming her dog had bitten another resident and then raped her.  Swinney was arrested for rape and  pleaded guilty to attempted aggravated assault on April 24, 2012 for which he served approximately three months.

The Defendants moved for summary judgment on the grounds that the apartment complex did not employ Swinney as the caretaker when Ms. Franklin alleges she was raped. Mr. Swinney did not receive his first paycheck from Golden Age in his role as caretaker until June 1, 2012.  The trial court granted summary judgment for the defendants and Ms. Franklin appealed.   She argues that the court used the incorrect test for determining whether Swinney was an employee and, furthermore, that the Defendants ratified Swinney’s actions by having him work at the complex when he got out of jail. The COA affirms.

Mario Harris v. State of Mississippi gruesome photos –  Harris was convicted of murder and  drive-by shooting. On appeal he argues that it was error to allow the introduction of gruesome photos, sufficiency of the evidence and cumulative error. The COA affirms.


Over The Rainbow Daycare v. Mississippi Department of Employment Security  unemployment benefits –  Tempestt Griffin was fired from Over the Rainbow Daycare after she got into a physical altercation with her supervisor.  The MDES denied her unemployment and she appealed. On the day of the scheduled hearing, the ALJ attempted several times, over a ten-minute period, to contact Rainbow at two different numbers that the MDES had on file for it. When the day care could not be reached, the ALJ found for Griffin since the daycare had not proven misconduct.  The COA affirms.

Mississippi Department of Audit, Stacey Pickering, Jim Hood, Chris Lott, David Huggins, Melissa C. Patterson, Joseph A. Runnels, Jr., Sandra R. Chestnut and Harold E. Pizzetta, III v. Gulf Publishing Company, Inc.public records/contempt –  This case deals with a public records request engendered by a state and federal investigation into  the Miss. Department of Marine Resources.  The Sun Herald filed a chancery court lawsuit  against the Mississippi Department of Marine Resources over the agency’s refusal to provide financial records under the state’s Public Records Act.   DMR refused to comply.  The chancellor held DMR and the Dep’t of Audit  in contempt.   It also fined some individuals working for the Dep’t of Audit and Jim Hood $100 in their individual capacities (hence the million briefs). The COA reverses and renders. “The records sought by GP were investigative reports that fall within the enumerated examples listed in section 25-61-3(f).” “Accordingly, the chancellor erred in finding DMR violated the MPRA when it denied GP’s requests and when it found the investigative-report exemption did not apply. Therefore, we reverse and render the judgment against DMR for violation of the MPRA.”

Pro Se PCR appeal affirmed

Thomas J. Hooghe v. State of Mississippi



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