Decisions – COA – May 24, 2016

Vince Hardaway v. Howard Industries, Inc. and Corvel Enterprise Comp. Inc. f/k/a Safety Risk Services – workers comp/bad faith –  Hardaway worked at Howard Industries. In July 2009 he developed carpal tunnel.  In 2011, he filed a petition to controvert and in 2014 he filed a lawsuit against Howard and its workers comp insurer alleging bad faith denial of benefits.  The COA reverses and renders without prejudice holding that a workers’ compensation claimant cannot maintain an independent action for bad faith denial of benefits until the underlying claim for the benefits is final. 

Trevioun Briggs v. State of Mississippicircumstantial evidence instruction – Briggs was charged with robbery and tampering with a witness.  A woman shopping at  Northpark Mall was robbed of her bags in the parking lot in 2013.  Briggs was arrested when he tried to return some of the items that night.  At trial he represented with a  public defender’s assistance. He was convicted and sentenced to fifteen years for robbery and two years for tampering with a witness  with the sentences to run consecutively. On appeal he argues he argues that (1) the circuit court erred by not properly instructing the jury regarding the case being circumstantial; (2) his counsel was constitutionally ineffective for failing to request a proper circumstantial-evidence jury instruction; (3) the indictment for witness tampering was flawed; (4) the evidence was insufficient to convict him of witness tampering; and (5) the two charges are subject to reversal for retroactive misjoinder. The COA affirms.

Ethel Moss Sims, Floyd Moss, Will Moss, Unis Moss, Lola Moss, Tiny Moss, Robert Lee Moss and Josh Moss v. A. Donald Mathis and Larry Mathis – partition –   The Mathises filed a complaint to confirm title and partition approximately sixty acres of real property in Clarke County. The Mathises had a 1/5 interest and claimed  that the property was not susceptible to division in kind and  should be sold and the proceeds divided. The chancellor entered an agreed order for the appointment of a special master.  The special master filed his report and then an amended report. None of the parties filed an objection.   In November  2014, the chancery court entered a “Judgment of Partition and Directions,” adopting the special master’s amended report for dividing the property in kind. Counsel for the Mosses did not appear at the hearing on November 12.   The Mosses appealed, claiming their due process rights were violated for lack of a hearing.  The COA affirms.  “Regarding hearings on partition cases, a chancellor is not required to conduct a hearing on objections to the special commissioners’ report when the landowners do not submit their objections in the form of a motion and do not notice or request a hearing.”

Paul M. Newton Jr. v. Ronald Lee Brown and/or the Estate of Ronald Lee Brown, Deceased, by Betty Lou Brown and Lisa Ann Razze, Sheila Rene Brown and Debra Lou Holton Elliott, as Individual Heirs-at-Law –   partnership dissolution/conversion – Dr. Ronald Brown and Dr. Arthur Matthews had a partnership, the Gulfport Urology Clinic. It was  dissolved in 2005. As part of the dissolution agreement, Dr. Matthews wrote a check for $75,000 plus to the State Tax Commission to pay off a lien against Dr. Brown and another check for $119,000 plus to Dr. Brown.  Dr. Brown’s attorney, Stephen Maggio, did not forward the check to the Tax Commission.  He also incorrectly drafted a quitclaim deed to the clinic property.  The Clinic’s accountant David Blakeslee met with Dr. Mathhews’ attorney Paul Newton about the problems.    Blakeslee had two checks payable to Newton: one for $55,730 as Dr. Matthews’ portion of the Clinic’s liquid assets. The other was for $49,771.71 payable to Newton as Dr. Matthews’ share for the surrender of the life insurance policy on Dr. Brown.   During the meeting. Newton took the checks.  Blakeslee demanded they be returned because Dr. Brown wanted to retain them to offset a federal judgment lien that that neither Dr. Matthews or Nelson had disclosed.  Dr. Brown filed suit seeking to enjoin Newton from cashing the checks.  After several years of litigation, the court found that Dr. Matthews violated his partnership duties to Dr. Brown, that Maggio was negligent, and that Dr. Brown’sand Newton’s actions converted the checks.  Newton  appealed arguing that the case should have been transferred to chancery and the court erred in finding that Newton converted Dr. Brown’s property. The COA affirms the refusal to transfer.  It finds that Newton’s taking the checks was an egregious act but reverses on the conversion issue and remands for the court to determine whether the funds properly belonged to Brown or to Matthews.  And since it reversion conversion, it also reverses the award of attorneys fees against Newton.

 

Carl Lee Jordan v. State of Mississippi –  evidence of  victim’s prior  threats –  Carl Jordan was convicted of agg. assault after  shooting  David Carter during an argument. According to Jordan, he did this because he believed Carter was about to shoot him and his fiancée, Tanya, who was Carter’s (recently divorced) ex-wife. At trial, Jordan was not allowed to adduce testimony by Tanya testimony regarding a long history of abuse and threats by Carter which Jordan was aware of at the time of the shooting. The trial court found that they occurred mostly two years before the shooting and were too remote.  The COA holds otherwise and reverses and remands for a new trial.

 George Strickland v. State of Mississippi – The Weathersby rule – George Strickland was indicted for the aggravated assault of his estranged wife, Patricia Strickland, and for the murder of her boyfriend, Christopher George. A jury found Strickland guilty of manslaughter but not guilty of aggravated assault. Strickland appeals arguing he was entitled to (1) an acquittal under Weathersby, and (2) a new trial because the verdict was against the overwhelming weight of the evidence. The COA affirms.

Sheral Smith v. State of Mississippi – validity of plea bargain – In 2010, Sheral Smith pleaded guilty in the Rankin County Circuit Court to four counts of statutory rape involving her son’s 14-year-old  friend.  She ended up entering a plea agreement whereby  the State would recommend that Smith be sentenced on each count to twenty years, with thirteen years suspended and seven years to serve with the sentences to run concurrently.   The circuit court followed the State’s recommendation and ordered Smith register as a sex offender upon her release and pay a $10,000 fine. Thereafter Smith filed a PCR motion alleging she  received ineffective assistance of counsel because she was given misinformation regarding the severity of her sentence she was forced into taking the plea bargain by her attorney. The trial court denied relief without a hearing.  The COA affirms.

 

Gary Mosher v. Lori Mosher child support/division of marital assets – Gary and Lori Mosher were  awarded a divorce based on irreconcilable differences. “On appeal, Gary contends the chancellor awarded Lori too much child support, too much of his military retirement, too much of the marital property, and too much alimony. As we find Gary’s arguments either procedurally barred or without merit, we affirm.”

 

Pro Se PCR appeals affirmed:

Tracey L. Rushing v. State of Mississippi

David Lee Adams v. State of Mississippi

 

5 thoughts on “Decisions – COA – May 24, 2016

  1. Just wanted to drop a quick note to tell you how much I enjoy your work. Thanks

    Stephen W. Robinson
    T: +1 703.712.5469 | M: +1 703.624.3246

    • Thank you so much! I get so little feedback and I do so love being useful. Although my cats and dogs will beg to differ. I can’t open their cans fast enough because I have only the two hands.

  2. Jane, enjoy your blog and read it daily. You may want to review the Newton case again – last three sentences of your summary are not accurate. It appears you confused the Brown and Newton parties. Also, the case was affirmed on the denial of transfer to circuit, but reversed and remanded on the conversion issue, and reversed and rendered on the attorney fee award.

  3. Jane, enjoy your blog and review it daily. You may want to take another look at the Newton case – the last three sentences of the summary are not accurate. It appears you confused the Newton and Brown parties. Also, the case was affirmed on the denial of transfer to circuit, but reversed and remanded on the conversion issue, and reversed and rendered on the attorney fee issue.

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