Decisions – COA – April 19, 2016

Daniel H. Frank v. City of Flowood, Mississippi McArn wrongful discharge – Daniel Frank alleges that he was forced to resign as a police officer for the City of Flowood because he refused to drop charges against Melissa Laseter for driving under the influence  and assault on a law enforcement officer. Frank argues that his constructive termination was wrongful and actionable under the McArn exceptions to the employment at will doctrine. Flowood argued that  Frank was due to be terminated because he acted unprofessionally and used excessive force while booking Laseter. It also argued that Frank’s claim does not fit within the McArn exceptions because Frank does not allege that he refused to participate in illegal activity or that he reported any illegal activity by his employer. The trial court granted summary judgment for Flowood.  The COA affirms.  McArn does not forbid  an employer from terminating an at-will employee for reporting the allegedly illegal acts of someone other than the employer or its employees.

Recognition of such a claim would require some measure ofjudicial oversight oflaw enforcement agencies’ personnel decisions. It would put courts in the role of judging whether an agency terminated an officer because he was overzealous or demonstrated poor judgment or simply because, as Frank alleges in this case, he upheld the law and refused to drop valid charges. This would be a significant expansion of the current McArn exceptions, which are narrowly limited to cases in which an employee refuses to participate in criminal activity or, as a “whistleblower,” reports his employer’s or a fellow employee’s criminal activity.


Cynthia D. Dorris v. Mary Graves – After Mary Graves purchased her elderly brother’s land at a tax sale, he quitclaimed the property to his daughter Cynthia Dorris.  Cynthia then sued Mary claiming  Mary had obtained the tax deed by leading Cynthia and her father to believe she would pay the taxes on their behalf. Mary claimed that her brother did not want the land and that she had acquired it with his knowledge and consent. After a trial, the chancellor found Mary’s account more credible. The COA affirms. “Because the credibility of witnesses is entrusted to the chancellor as the finder of fact, we cannot disturb this determination on appeal.”


Timothy Rice  v. State of Mississippi –  sentence enhancement –  Rice was convicted for selling cocaine.  His appeal was affirmed but the  Mississippi Supreme Court granted his pcr on the issue of whether his sentence enhancement as a subsequent drug offender was in error in light of its  decision in Williams v. State, 131 So. 3d 1174 (Miss. 2014).  The trial court found that error occurred because none of Rice’s prior felony convictions dealt with controlled-substance violations and because the State filed no motion seeking to enhance Rice’s sentence on a subsequent-drug-offender basis. The circuit court eliminated the subsequent drug-offender portion of Rice’s sentence and amended the sentence to a term of thirty years.  Rice appealed raising issues that were not permitted by the Miss.S.Ct.’s order remanding the case.  The COA affirms.

Greg Estes and Jeff Estes, Co-Executors of the Estate of Joe Howard Estes, Deceased v. Sarah Young Estes –  right of spouse to inherit where parties divorcing – Right after Sarah and Joe married, Joe experienced severe health problems requiring amputation of one leg.  Sarah moved out and filed for divorce. Nine months after the wedding, Joe died.  His will left nothing to Sarah.   for nine months when Joe died. Sarah contested  the  will and the Lee County Chancery Court granted Young a widow’s allowance and a child’s share of the estate. On appeal, the COA  reversed and rendered the widow’s allowance and reversed and remanded the child’s-share inheritance for further analysis as to whether Young had abandoned the marriage as a matter of law. On remand, the chancery court determined that Young had not abandoned the marriage as a matter of law and again granted her a child’s share of the inheritance.  Joe’s family appeals.  The COA again reverses and renders.

 Regardless of any other factors present in this case, the most glaring 8 evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.


Marquis Deshune Charleston  v. State of Mississippi – proof of habitual status –  Charleston was convicted of attempted aggravated assault,  possession of a firearm by a felon, and  felony fleeing as an habitual and sentenced to life without parole.  He came to the attention of law enforcement when he turned to avoid a roadblock set up at the intersection of Meadow Lane and Sykes Road in Jackson. On appeal he argues that there was insufficient proof to sentence him as an habitual offender because the state failed to prove he had served one year on two separate sentences. The pen pack, though, showed that he served 14 months on two convictions.  And even though he served the time concurrently, this was sufficient. “Our supreme court has held that ‘serving one year or more on concurrent sentences for separate convictions arising out of separate incidents amounts to serving more than one year on each sentence for the purpose of enhanced sentencing under [section] 99-19-83.’ Bogard v. State, 624 So. 2d 1313, 1320 (Miss. 1993).”  Charelston also complains of prosecutorial misconduct and ineffective assistance.  The COA affirms.

Crieg Alen Oster v. Consuelo Moreno Ratliff whether children are emancipated because they move out –  Crieg and Consuelo  divorced in 2007 after having had 4 children.  This appeal  deals with post-divorce motions for contempt.  Both alleged that the other was in arrears with regard to various payments (cars, college, medical expenses).  Crieg argued that his financial responsibilities were obviated because Marie and Patrick had moved out into an apartment of their own on June 1, 2012.  The chancellor found that they were not emancipated, Crieg was not in contempt, that Consuelo was entitled to back child support for Maria and Patrick and future support for Maria, and that Consuelo was entitled to $2500 in attorneys fees for Crieg’s discovery violations.  Crieg appeals arguing that Maria and Patrick were emancipated.  The COA affirms but finds that the chancellor erred in not awarding Consuelo post-judgment interest.

    June Rose Thompson Varnell and Dexter Varnell v. Michael Frederick Rogers, Judy Chisum Rogers, Laura Ratliff a/k/a Laura Ratliff Rogers and Joseph Sadler – nuisance neighbors/”party fence” – June and Dexter  Varnell built a house in Southaven and moved in in 2004.  Even before they moved in they claimed she was experiencing problems with her next door neighbors the Rogerses.  And after they  moved in  the problems continued.  In 2009, Dexter began building a fence between the properties but stopped because of health problems.  Michael Rogers then completed the fence.  in 2012, Dexter and the Rogerses’ daughter Laura Ratliff  signed an agreement in city court to  leave each other alone.  In 2014, the Varnells filed a complaint for injunctive relief to prevent the shooting of fireworks onto their property and further harassment.  The Rogerses counterclaimed for nuisance.   The chancellor found the Varnells lacked proof that the Rogerses did the acts complained of and granted relief to the Rogers.  On appeal, the COA affirms the granting of the injunction in favor of the Rogerses.  However, it reverses the award of attorney’s fees as well as the order requiring the Varnells to reimburse the Rogerses  $1,000 for the completion of the fence.

    Although the portion of the fence that Michael constructed was along the Varnells’ and the Rogerses’ property line, there is no evidence that the fence was in fact a party fence within the meaning of section 89-13-1. Therefore, the chancery court erred in requiring the Varnells to reimburse the Rogerses for the cost of the fence that the Rogerses constructed.


    Timothy Allen McCoy v. State of Mississippi sentencing bias – Timothy McCoy was convicted of  four counts of sexual battery and one count of exposing another to HIV  He was sentenced to 75 years.  On appeal, his attorney argues that the case should be remanded for resentencing because the trial judge expressed bias towards homosexuals during sentencing. McCoy filed a pro se supplemental brief, arguing his trial counsel was ineffective, the evidence was insufficient to support the verdict, and the sentence was disproportionate to the crimes charged.  The COA affirms. “The State concedes that sexual orientation should not be considered an aggravating factor during sentencing. However, the State argues the judge’s comments were not sufficient to overcome the presumption that he was unbiased and impartial. We agree.”

    PierCon, Inc. and Dennis Pierce, Inc. v. Brierfield Insurance Company – calculation of insurance premiums – PierCon Inc. and Dennis Pierce Inc. purchased two commercial general liability policies through Brierfield Insurance Company.  Pierce refused to pay certain premiums because he disagreed with Brierfield’s calculations. Brierfield y filed suit to collect the premiums in county court.   After a trial, the county court found that language in the policies stating that premiums would be calculated in accordance “with our [i.e., Brierfield’s] rules and rates” was vague and ambiguous and that Brierfield’s methods of auditing and calculating premiums were arbitrary and capricious. The county court recalculated the premiums and entered judgment in favor of Brierfield for the recalculated amount, which was less that the amount sought by Brierfield.  Both parties appealed to the circuit court.   The circuit court reversed the county court’s decision, finding that the policies were neither vague nor ambiguous and that Brierfield’s auditing practices were neither arbitrary nor capricious. It awarded Brierfield the premiums it sought. On cross-appeal, the court granted Pierce the offset he sought. Both parties again appealed.   The COA finds that the circuit court correctly interpreted the policies.  Pierce admitted it was not entitled to an offset and, thus, the court reverses as to that issue. “However, the circuit court erred by denying Brierfield’s request for post-judgment interest. Therefore, we remand the case for the circuit court to enter an amended judgment that includes an award of post-judgment interest but not the $5,693 offset.”

    Janet Evans v. Mosleh Aydha d/b/a JB’s Convenience Store – premises liabilityEvans was  pumping gas at JB’s Convenience Store in Pontotoc when she slipped and fell in some oil.  The trial court granted summary judgment for the gas station because there was “no evidence of what [the] spot was, how it got there, how long it had been there, or whether or not the Defendant knew or should have known about [it].”  The COA reverses.  Evans’ daughter provided an affidavit that she came to the station after the accident  and saw a spot where her mother had fallen which  was “mostly black, dirty, and it was obvious to me that the oily residue had been on the pavement for an extended period of time, at least several days.”  The Court holds that that this was sufficient to make out a jury question on whether the spot had been there long enough for the gas station to have had constructive knowledge of it.


    Pro se PCR appeals affirmed:

    Donald Chambliss  v. State of Mississippi

    Jeffery Walton  v. State of Mississippi

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