Decisions – COA – May 3, 2016

 

David Jackson  v. State of Mississippi –  motion for transcripts – Jackson was convicted in 1997 of possession of cocaine.  He is appealing the denial of a motion for transcripts.  The Court dismisses the appeal for lack of jurisdiction.

In the Matter of the Dissolution of the Marriage of Nancy Jewel Pierce Edwards and Johnny Jerome Edwards custody – Johnny and Nancy agreed to an ID divorce and left custody up to the judge.  The court awarded custody to Nancy. On appeal Johnny contends that the chancellor erred in considering circumstances outside Johnny’s control on the question of continuity of care.  She had had primary custody of the three boys for a year due to an order of an Alabama court. The COA affirms.

Walter Lee Taylor v. Lucille S. Galloway timber cutting –   In May of  2008, Walter Taylor contracted with a logger and harvested timber on the four acres of land claiming he owned the land through adverse possession.  The Galloways, in whom the property was titled, sued.  A jury found Taylor liable for approximately $17,500 in compensatory damages under section 95-5-10(1).  The COA  reversed and remanded on the questions of additional statutory penalties and other fees and costs allowed by subsections (2) and (3) of the statute. Taylor v. Galloway, 105 So. 3d 1160 (Miss. Ct. App. 2012).  After the  case was remanded,  the jury awarded Galloway $43,560 in statutory penalties  and thee trial court then awarded an additional $42,767.64 for attorney and witness fees and court costs under section 95-5-10(3). Taylor appeals arguing that the damages were to punish Taylor and therefore the jury should have been instructed to award them only on clear and convincing evidence.  The COA is thoroughly unimpressed finding no basis for Taylor to contend that the award was a punitive damages award.  The COA affirms.

Estate of Rose Greer, Deceased: John Oaks a/k/a John Oakes v. Linda Greer Ball –  lease versus will  – In  2002, Rose Greer leased some farmland in Lincoln  County to  Jene and David Nunnery.  The rent was $600 per month for a  one-year initial term. The lease included automatic one-year renewals, with a final termination date of July 31, 2025.  The lease contained a section in contemplation of Greer’s death: “In the event of the death of the Lessor, this lease agreement shall not terminate[;] rather the rights and obligations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.”  Greer died in 2010.  Her 2009 will left the remainder of her estate to John  Oaks but did not mention the lease assignment to Ball.  In 2013,  Oaks filed a complaint for declaratory relief against Ball asking the court to find the section of the lease dealing with Greer’s death to be invalid. Oaks claimed that the assignment was not valid because it was testamentary in nature and did not comply with the requirements of a testamentary document. As alternative relief, Oaks sought a declaratory judgment that, if the assignment was valid, Ball was responsible for the payment of ad valorem taxes and insurance premiums on the property. The court found the lease valid and ruled that Ball was to pay the ad valorem taxes on the property, and denied Oaks’s request that Ball pay the casualty-insurance premiums on the property.  The COA reverses.

While Greer was alive, Ball had absolutely no interest in the property or the lease agreement whatsoever. Ball’s interest in the lease agreement was conditioned upon Greer’s death. Following the framework illustrated in Buchanan and Ford, this clearly indicated Greer’s intent that the assignment “would have no effect until [her] death.” Buchanan, 236 Miss. at 756, 112 So. 2d at 227. Therefore, we conclude that Section 5 3 of the lease agreement acted as a testamentary document and failed to validly assign Greer’s lessor rights to Ball unless it complied with the necessary testamentary requirements.

Michael R. Smith, Individually and as Trustee of the Maggie Legett Smith Irrevocable Trust v. Maggie Mae, L.P.; David B. Smith, Conservator of Maggie Mae Smith; David B. Smith, Executor of the Estate of Maggie L. Smith, Deceased; and David B. Smith, Individually –  conservatorship’s effect on limited partnership – Maggie Smith created a trust in 2000 with herself as trustor, her son Michael as trustee, and sons Michael and David as primary beneficiaries.  Two days later Maggie and the Trust executed a limited partnership agreement of Maggie Mae, LP, whereby Maggie was the  sole general partner.  The partnership was divided among Maggie as general partner – 33%; Maggie as limited partner – 33%; and Michael Smith as limited partner – 33%.   The next month Maggie gave 1/3 of 1% of her general partnership interest to David.  A month later David sold a parcel of land belonging to Maggie May. L.P. for $186,000 and kept the money.  The next year he entered into a contract to sell another parcel owned by Maggie May, LP for $32,000.   In 2002, David filed a petition  to establish a conservatorship over Maggie.   The petition was joined by Maggie and two grandsons.  Two doctors supplied affidavits that she suffered from moderate dementia and short-term memory loss.  The chancellor granted the petition and appointed David as conservator.  David then petitioned to sale the parcel he had earlier agreed to sell for $32,000.   He later filed a petition for authority to remove Michael as trustee of the trust and then a petition to remove Michael as trustee of the Miss Eva Elisee Legett Irrevocable Trust.   In 2003, Micheal, as the trustee of the Trust,filed a complaint for the turnover of funds and for determination of partnership interest.  Maggie died in 2011.

The cases were consolidated.  The chancellor found for David.  The COA reverses and remands finding that the LPA indicted that once Maggie could no longer serve as the managing partner, Micheal would step into that role and that happened when the conservatorship was established.

Daniel Snyder  v. State of Mississippileaving the scene of an accident – On February 22, 2013,  Snyder was driving home and struck and killed Kaytlynn Brann. She and  Sarah Guy had been walking down Pointe Aux Chenes Road in Jackson County.  Guy testified that Brann was walking in the road at the time of the accident. Snyder was an officer with the Pascagoula Police Department but was off duty at the time of the accident. It was later determined that Snyder was not at fault for the accident. However, witnesses indicated that Snyder left the scene of the accident for as long as fifteen minutes.  He was found guilty of leaving the scene of an accident and sentenced to six years with five suspended. On appeal he challenges only the sufficiency of the evidence.  The COA affirms.

Evelyn Barnes, Ben Barnes, and Desmond Young, a Minor, by and through Orthia Herring, his Next of Kin v. City of Canton, Mississippi and The Canton Convention and Visitors BureauTort Claims Act –  The plaintiffs were injured while on the train that is part of Canton’s Christmas celebration.  They sued the City of Canton and the City of Canton Convention and Visitor’s Bureau.  The trial court dismissed both entities finding that the train was run by CCCVB, the CCCVB was a separate governmental entity and that the plaintiffs failed to file a notice of claim with the CCCVB. The COA affirms.

James Earl Polk Jr.v. State of Mississippi –  speedy trial/confrontation/hearsay – In 1996, Polk was charged with murdering Kimberly Rowell in 1993. In  January 1997, an order was entered withdrawing the charges, and Polk was released from custody. In  2012, Polk was again charged with Rowell’s murder. The indictment also charged Polk’s cousin, Howard. Howard died prior to trial. Polk was convicted.  On appeal he argues that  (1) his right to confrontation was violated when the trial court admitted statements made by his cousin and codefendant, Howard  through the testimony of three witnesses; (2) his right to confrontation was violated when the trial court admitted the testimony from a medical examiner who did not perform the autopsy or author the autopsy report; (3) his constitutional and statutory rights to a speedy trial were violated.  The COA affirms.

 

Shirley Byers v. Barbara Turner attorney fee dispute –  Turner hired Byers to represent her in a child custody dispute.  In June of 2010, she paid Byers a retainer of $2500 for her services to be rendered at a rate of $150.00 per hour.  Three weeks later, the court transferred the case to Tennessee and Turner hired a Tennessee lawyer.  She also asked Byers for an accounting  of her services which Byers refused to provide.  She then asked the Bar for help but Byers did not agree for the Bar to mediate.  Turner then filed suit in justice court which awarded Turner $1,750 in damages and $64 in court costs.  Byers appealed to the Circuit Court of Marshall County, and a bench trial was eventually held in September 2014. “At trial, Byers—for the first time—produced an itemized statement and testified that her legal services for Turner totaled 18.1 hours; however, the itemized statement lacked specific dates. Byers also testified that Turner’s legal fees should have been $2,715.”   Byers stated that she created the itemized statement based on a review of the case file as well as her notes and calendar.  “Ultimately, the circuit court invoked its ‘inherent power to sanction’ Byers in the amount of $2,500 for ‘obstinate and unreasonable refusal to provide an itemized statement’ and ‘abusive litigation practice.’”  The COA reverses finding that the judge sanctioned Byers for violating a rule if discipline and only the Miss.S.Ct. has that power.

Kevin D. Boudreaux, Jr. v.  State of Mississippi –  deliberate design/victim’s intoxication – Kevin Boudreaux Jr. was convicted of murdering his sister after he came home drunk from a Mardi Gras parade and started arguing with his ex girlfriend.  On appeal he argues that : (1) the jury was not properly instructed on deliberate design; (2) the trial court erred in excluding evidence of the victim’s level of intoxication; (3) the evidence supports a manslaughter conviction; and (4) his trial counsel was ineffective. The COA affirms.

 

Jeremy Hamilton v. Southwire Company and Old Republic Insurance Companyworkers comp. – In November 2005, Hamilton a stress fracture and tendon strain while working for  Southwire. Southwire  compensated him for that but Hamilton claimed that his foot and ankle injuries also resulted in back pain.   In 2012, Hamilton filed a petition to controvert.  In March 2013, Hamilton filed a  motion to compel medical treatment to have a revision of a spinal cord stimulator that had been implanted in 2006.  The Commission found that Hamilton no longer needed the stimulator.  The COA affirms.

Zachary Cozart  v. State of Mississippi – Zachary Cozart was tried for the  capital murder of his girlfriend’s  twenty-one-month-old child. The jury found him guilty of manslaughter and the court sentenced him to thirty years with fifteen suspended and ten years of post-release supervision.  Cozart argues that (1) he was erroneously sentenced pursuant to Mississippi Code Annotated section 97-3-25(2)(b) (Rev. 2014), which provides a maximum sentence of thirty years for the homicide of a child under the age of eighteen years by a person over the age of twenty-one years, rather than pursuant to Mississippi Code Annotated section 97-3- 25(1) (Rev. 2014), which provides a twenty-year sentence for manslaughter;1 (2) the verdict is against the sufficiency and overwhelming weight of the evidence; and (3) he received ineffective assistance of counsel. The COA affirms. Cozart’s trial counsel asked for and got a  lesser-included-offense jury instruction  which echoed the elements found in section 97-3-25(2), altered his indictment and subjected him to a harsher penalty and that crime did not exist when the child was killed. The COA finds that Cozart waived this issue when his attorney requested the erroneous instruction and that this was trial strategy and  affirms.

Pro se PCR appeal affirmed:

Akiva Kareem Clark a/k/a Akiva Clark v. State of Mississippi

 

 

 

 

 

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