Decisions – COA – May 17, 2019

Elizabeth Weatherly Bailey v. Louis Rodney Luke Chamblee, Jr. time for filing notice of appeal – Elizabeth Weatherly Bailey entered into a contract to buy Louis Chamblee’s house but refused to go through with it.   The county court found that Bailey breached the contract, awarded damages, and entered judgment in favor of Chamblee. Bailey appealed to the circuit court, and the circuit court affirmed. However, the parties did not receive notice of the circuit court’s order for more than fifteen months after it was entered. Upon receiving notice of the order, Bailey moved to reopen the time for filing a notice of appeal, and the circuit court granted her motion. However, the circuit court was without authority to reopen the time for appeal because more than 180 days had elapsed since it entered its order affirming the county court. Bailey’s notice of appeal was untimely and the Court dismisses it for  lack of jurisdiction and awards Chamblee $3,857.62 in attorneys fees for the appeal.

Peter Russell v. Beachwalk Condominums Association, Inc – lease after foreclosure – Peter Russell entered into a two-year lease for a condominium.  Shortly  after that the condo  was foreclosed upon and the new owner challenged the  validity of his lease. And  the homeowners’ association, brought a separate suit against Russell to enjoin him from using the common areas of the complex. Several years later, Russell surrendered the premises and the Beachwalk suit was dismissed as moot. All thatremained were  Russell’s various claims for sanctions, which were denied by the trial court. The COA affirms “[b]ecause sanctions are entrusted to the sound discretion of the trial court, and no abuse of that discretion has been shown.”

The City of Hattiesburg, Mississippi v. Precision Construction, LLC – arbitration – Hattiesburg and Precision Construction LLC entered into a construction contract for the replacement of water and sewage lines. Precision began work, but problems arose that delayed the project and caused Precision to incur additional expenses. Precision submitted change orders based on these issues, but the City refused payment. Precision then demanded arbitration pursuant to the parties’ contract.  After the hearing, the arbitrator awarded Precision $848,949.55 for the City’s breach of contract and later entered a supplemental award of attorneys’ fees. The City then filed a motion for reconsideration, which the arbitrator denied—in part because he deemed it untimely.   The City returned to circuit court and filed a motion to modify the arbitration award pursuant to M.C.A.  section 11-15-135. The circuit court denied this motion, concluding that there was no evident miscalculation in the arbitrator’s award other than one miscalculation that Precision acknowledged. In the same order, the circuit court granted Precision’s motion to confirm the award. ¶3. On appeal, the City argues that the arbitrator erred by denying its motion for reconsideration. The City also claims that the arbitration award in favor of Precision is based in part on evident miscalculations by the arbitrator. The Court affirms. The City’s first argument is waived because it was not raised in the circuit court. Nor does the record disclose any miscalculation by the arbitrator.

Casey M. Burgess v. State of Mississippi –  evidence of prior felonies – Burgess was charged with kidnapping Jeanette Yung as she was unloading groceries from her car at her house in Brandon. Yung managed to get away (not without injuries)  but Burgess sped off in her truck. On appeal he argues among other things  that Burgess’s prior felony convictions should have been excluded and that  the trial court erred by not granting a mistrial following testimony that Burgess had been interviewed by law enforcement regarding an assault on his wife.  The COA affirms.

Chester A. Leigh v. Aberdeen School District –  termination of school superintendent – In 2012, Chester Leigh was terminated from his position as the superintendent of the Aberdeen School District after he leased two vehicles for school security purposes without proper authorization and without soliciting bids.  The chancery court upheld the termination and he appeals.  The COA affirms.

Anthony Robinson v. Mississippi Department of Employment Securityunemployment benefits Robinson was employed as a material handler for Sedona Staffing from December 27, 2012, until he failed to show up for work without notification for three consecutive days beginning on August 30, 2013.  Sedona Staffing fired him and he  filed for unemployment benefits. A claims examiner from the MDES investigated and found that Robinson was arrested on August 30, 2013, and was incarcerated until September 18, 2014 and never told Sedona.  He was denied benefits.   Robinson appealed and lost and appealed an lost. On appeals to the COA he loses again. (In case you are wondering, Robinson represented himself on appeal).

Joseph Edward Justice v. State of Mississippi – tender years exception – Justice was convicted of fondling his nine-year-old stepson. On appeal he argues sufficiency of the evidence and that the court erred in applying the tender years exception to allow witnesses to testify about what the nine-year-old told them.  The COA affirms.

Globe Metallurgical, Inc. v. Mississippi Environmental Quality Permit Board and Mississippi Silicon, LLC – timeliness to challenge permit – Mississippi Silicon LLC was granted a permit by  MDEQ to construct and operate a facility that would manufacture silicon metal and silica fume in Burnsville.  Globe Metallurgical Inc., a competitor of Mississippi Silicon, requested a formal hearing on the permit. The Permit Board denied Globe’s request as untimely. Globe appealed to the Tishimingo CountyChanceryCourt, and the court agreed that Globe’s request was untimely. On appeal, the COA affirms.

Paul T. Brown v. Hederman Brothers, LLC  – suit on guaranty –   Paul T. Brown  owns  Bookmark Publishing, LLC which  publishes photographs and books. In 2010, Brown approached Hederman Brothers about printing a series of calendars for Bookmark.  Brown ended up signing  in his individual capacity a continuing guaranty obligating Brown to pay up to $45,000.00, plus interest, attorneys’ fees, and collection costs, as the guarantor on Bookmark’s open account with Hederman Brothers.   Hederman Brothers ended up filing suit on the guaranty.  The trial court granted summary judgment for Hederman Brothers.  Brown appealed arguing that Hederman Brothers could not collect on the guaranty without  first exhausting all avenues of recovery against Bookmark. The COA affirmed.

Michael Matthews v. State – Lindsey brief Matthews of one count of armed robbery, one count of aggravated assault, and one count of burglary of a dwelling.  The OIA filed a Lindsey brief. The COA agrees that the record presents no issues.

City of Jackson, Mississippi v. Sherman JacksonTorts Claim Act – Sherman Jackson and Frederick Moore were driving to  Moore’s grandmother’s house on Santa Rosa Street in Jackson in the early monring hours.  . When they arrived in the driveway, Officer Brian Jones, who was responding to a call about gunshots fired in the area, pulled in behind them.   While Officer Jones questioned Moore, Jackson emerged from the car, and Officer Jones attempted to conduct a field interview with him. Jackson declined and ran away. Jackson claimed he ran because the officers scared him by pointing their weapons at him. Officers Jones and Dobson refuted that they drew their weapons before Jackson ran away from the scene.  Officer Jones pursued Jackson and fired at him striking him in the left forearm. Jackson sued the City.  After a bench trial the court  found that the officers acted in reckless disregard of Jackson’s safety and that tort immunity under the MTCA did not apply to the City. Accordingly, the trial court awarded Jackson medical expenses of $22,829.26 and $50,000 for pain and suffering. The COA affirms.

The Court denies rehearing in Kenneth Ray Goldsmith v. State of Mississippi but tweaks its opinion

 

Pro se PCR appeals affirmed:

Cornelius L. Callahan v. State of Mississippi

Robert O. Miller v. State of Mississippi

Scotty B. Lyles a/k/a Scotty Lyles v. State of Mississippi

Able Jerome Dedeaux v. State of Mississippi

 

 

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