Decisions – COA – May 31, 2016

Natasha Orlantha Stewart a/k/a Pebbelz Da Model v. State of Mississippi –   culpable negligence manslaughter –  It’s hard to forget Pebblez the Model.   In seeking to have the largest butt on the planet,  Pebblez/Natasha obtained injections from Jackson resident Tracey Garner whom Pebblez believed to be a nurse. A woman named Karima Gordon contacted Pebblez wanting to know how she achieved such a large ass and Pebblez put her in touch with Garner.  Gordon thanked Pebblez by giving her $200.  Karima and a friend drove to Jackson from Atlanta where Garner injected her butt with silicone.  On the drive back, Karima was coughing and having trouble breathing.  When she got to Atlanta she went straight to an ER but did not tell anyone about the injections. Approximately a week later she was dead  from a  pulmonary embolism “due to massive soft tissue injection with” silicone.   Pebblez was indicted for the felony offenses of murder, wire fraud, conspiracy to commit murder, and conspiracy to commit wire fraud. On February 3, 2014, after a trial, a jury found her guilty of manslaughter and conspiracy to commit manslaughter, and not guilty on the other counts. The COA reverses and renders finding that Pebblez’ “referral was not made with the purpose of promoting or facilitating the criminal act of manslaughter.”

 

Ulysses Conley v. Mary Francis Wright – SOL for recovery of land –  Anne Dora Conley had two children, Ulysses Conley and Mary Francis Wright.  Two years before Annie died in 2000, several instruments were filed having to do with 18 acres in Carroll County owned in part by Annie.  One was a quitclaim deed that conveyed part of the land to Wright for $10,000.  A month later a warranty deed was filed making Wright the trustee of the entire property.  When Annie died in 2000, Wright, as administrator probated and closed the estate.  In 2011, Conley claims he discovered the 1998 conveyances for the first time and filed suit against Wright.  Wright argued that the statute of limitations had passed.  The chancellor agreed and dismissed Conley’s case finding that the three-year statute of limitations had passed.  The COA affirms but notes that the SOL regarding  recovery of land is ten years but any error was harmless since fifteen years had passed since the instruments were filed in 1998. .

 

Daniel Rollings  v. State of Mississippi –  sufficiency of the evidence –  Rollings was accused of breaking into the home of and raping a senior citizen for whom he had done some demolition  work. Rollings insisted the sex was consensual. On appeal he claims that the evidence was insufficient.  The COA affirms.

Jon Lunsford, Mike Cook and MIPCO, LLC a/k/a Miss. Inv. Petrol. Co. v. Processes Techs. Svcs., LLCfraud in arbitration – Process sued MIPCO in an effort to rescind an agreement which it contended had rested upon MIPCO’s misrepresentations about its biofuels prowess. MIPCO compelled arbitration, and was ordered to pay $406,892 plus interest and attorney fees. MIPCO filed a M.R.C.P. 60(b)(6) motion with the arbitrator, claiming that Process had won its award through fraud, by giving false testimony about a complaint filed against MIPCO with the Mississippi secretary of state’s office and by failing to produce correspondence to process from that agency. The motion was denied, and after the chancery court confirmed the arbitrator’s award, MIPCO filed a like motion there, from the denial of which it appealed.

The Court of Appeals affirmed, holding that MIPCO’s counsel appeared to have been aware of the letter (perhaps making a tactical decision not to pursue the matter) and that the rule that the trial court is best able to decide whether a fraud has been practiced upon it applies equally to an arbitration. The COA also denied Process’s cross-appeal for sanctions, holding that MIPCO’s appeal was meritless but not frivolous.

Diana Lynn Carter Larson v. Mark Alan Larson –Armstrong factors & res judicata – Mark obtained a divorce from Diana, who was awarded $80K equity in the marital home and $36K in lump-sum alimony. Diana appealed, contesting the division of the marital home’s value and the denial of rehabilitative or periodic alimony. In her first appeal, she obtained a reversal, and on remand the chancery court found there was only $28,500 of equity in the home, awarded that to Diana, and awarded her $87,500 in lump-sum alimony. She again appealed, but this time the COA affirmed. Diana’s arguments as to valuation had already been decided in the first appeal, and in any event she failed to present evidence to contradict the chancellor’s application of the <i>Armstrong</i> factors.  Likewise as to alimony, the chancellor explained his reasoning in detail, and the award was within his discretion.

Denise Von Herrmann (Runge) v. Andrew Benjamin Von Herrmannnature of alimony – Denise agreed to pay Andrew monthly alimony over a period of years, but when her salary was cut in half, she sought modification. The chancery court denied her petition, holding that the alimony was not periodic but lump-sum and thus not subject to modification. On appeal, the COA reversed, holding that the issue was not within the chancellor’s discretion but rather a matter of contract interpretation, and that the language of the divorce settlement plus extrinsic evidence made it more likely that the parties had intended the alimony to be periodic. The Court remanded for a ruling on the merits of Denise’s modification petition.

 

Kenneth McKenzie and Shina McKenzie v. Mississippi Municipal Service Company –  entry of default & settlement agreement –After colliding with a Laurel police car, the McKenzies served a notice of claim on the city, and the MMSC responded with an offer to pay property damage while denying liability. The parties settled property claims but could not resolve medical claims, and the McKenzies filed suit for specific performance on what they claimed was a settlement agreement. The clerk entered a default against MMSC, but the chancery court set it aside and granted summary judgment to MMSC on the grounds that there was no contract.

On appeal, the COA affirmed. The setting aside of the entry of default was within the chancellor’s discretion; the COA did not reach the merits of MMSC’s argument that service on its vice-president was not valid, because the COA held that the chancery court’s ruling rested on other factors such as the desire to see the matter resolved on the merits. As for the summary judgment, the COA held that the McKenzies presented only evidence of negotiations, not of an agreement, and their argument about the statute of limitations’ having supposedly been tolled by equitable estoppel (due to the negotiations) was barred for being raised for the first time on appeal as well as irrelevant to the holding that there was no contract.

 

Pro se PCR appeals affirmed:

Sylvester Bell  v. State of Mississippi

Divan W. Diggs v. State of Mississippi

 

 

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