Decisions – COA – June 7, 2016

Carol Gray v. Dimitrios Dimitriades, M.D., Memorial Hospital at Gulfport and Todd Frieze, M.D. – med mal – Gray sued Dr. Eric Graham, Nurse Michelle Graham, Dr. Jimmy Dimitriades, his employer, Memorial Hospital at Gulfport , and Dr. Todd Frieze claiming that they failed to diagnose her with multiple myeloma despite the lab results, clinical symptoms and a biopsy indicative of same.  Their failure allowed her cancer to progress untreated and produce fractures in her spine. The trial court granted summary judgment for the defendants finding that an affidavit submitted by one of Gray’s experts, Dr. Bruce Avery, was “conclusory” as to the issue of proximate cause. The COA affirms.

S&M Trucking, LLC v. Rogers Oil Company of Columbia, Inc. – setting aside default/service via the Secretary of State –  Rogers Oil Company filed suit against S&M Trucking to collect a debt of some $23,258.48.  When Rogers Oil could not serve S&M’s agent or any of its members, it served S&M via the Secretary of State’s office.  When S&M failed to answer, Rogers Oil obtained a default judgment in February 2014.  In August 2014, Rogers Oil filed a motion for a judgment debtor exam and in November 2014 S&M filed motion to set aside the default because it was never served with process and it had been administratively dissolved and its registered agent no longer lived in Mississippi.    The circuit court judge denied the motion and S&M appealed.  The COA reverses finding that Rogers Oil’s evidence was insufficient to show that it was reasonably diligent in trying to serve S&M and, thus, service via the Secretary of State pursuant to Sect. 79-35-13(b) was improper.

Doris McMullen-Anthony v. Tecumseh Products Company and Twin City Fire Insurance Company – workers comp. – Doris worked on an assembly line at Tecumseh, a manufacturing company, since 1994.  In 2004 she began experiencing shoulder pain and Tecumseh  switched her to a light-duty position building loose parts from about 2004 until 2009. In March 2009, Doris was in a car accident.   A few weeks later she had surgery on her left shoulder.  After she returned to work, she complained of neck pain.  In 2011,Doris filed a claim against Tecumseh alleging that she suffered injury to her neck, cervical spine, and left-upper extremity arising from repetitive, cumulative trauma and micro-traumas that were secondary to her work. The only doctor who connected her injuries to her work, however, based his opinion on an incorrect work history provided by Doris. Another doctor testified that he could not determine whether her injuries were from her work or from her MVA aggravating a preexisting degenerative disc disease. The AJ and the Commission found that Doris had not suffered a work related injury.  The COA affirms.

John P. Jackson v. State of Mississippi – guilty plea pcr appealJackson pleaded guilty to a bunch of stuff.  He later files  pcr claiming that his plea was involuntary.   Jackson alleged that his attorney informed him that if he pled guilty, he would be eligible for parole. However, due to the firearm enhancement, Jackson was actually ineligible for parole. Jackson claimed that he would not have pled guilty had he known that he would be ineligible for parole. At a hearing. Jackson and his wife testified that the attorney told them he would be eligible for parole.  The attorney testified that he did tell them that Jackson would be ineligible for parole.  The court denied the motion and the COA affirms.

Timothy Vivians v. Baptist HealthPlex, Becky Vrieland and Helen Wilsonpremises liability – Vivians filed a lawsuit against Baptist Healthplex; Becky Vrieland, Baptist’s aquatics director; and Helen Wilson, an employee of Baptist Health Systems alleging negligence arising out of an accident wherein in February 2008, he  slipped and fell backward upon entering Baptist’s therapy pool.  Vivians claimed that “[t]he Defendants had a duty of reasonable care to warn [him] of the danger of hi[s] being left unattended in the therapy pool, to keep its premises in a safe condition, and to prevent the injuries suffered by [Vivians] from occurring.” The trial court granted summary judgment for the defendants and Vivians appeals.  The COA affirms.

Stanley R. Bolivar and Cindy Bolivar v. Joyce Waltmangrandparent visitation – Jason “Blake” Waltman was born October 25, 2003, and Kaylee Waltman was born October 5, 2005, to parents (Jason Waltman and Karen Clark) who have a history of prolonged substance abuse.  The children were wards of their  maternal grandparents, Stanley and Cindy Bolivar, who were appointed by the chancery court as the children’s co-guardians in May 12008 with the consent of the  children’s natural parents. The paternal grandmother, Joyce Waltman was allowed  visitation but when the Bolivars made it harder for her to visit she obtained a court order granting her the same visitation awarded her son, the father of the children. The Bolivars appealed that decision  and the COA  vacated the judgment and remanded for further proceedings because the natural parents, whose parental rights had not been terminated, were not joined as necessary parties.  Bolivar v. Waltman, 85 So. 3d 335, 337  (Miss.  App. 2012).  Thereafter Joyce, along with her son, Jason, filed a joint amended petition for grandparent-visitation privileges. The chancellor awarded her visitation for every second weekend and some holidays.  The Bolivars appealed. The COA affirms.

Patrick Higgins, Sr. v. State of Mississippi – compensation for wrongful imprisonment – In December 1994, a Warren County jury found Patrick J. Higgins guilty of three counts of issuing and delivering bad checks. The COA  reversed and rendered his case in unpublished opinion on appeal. Higgins v. State, 95-KA-00124-COA (Miss.  App. Mar. 10, 1998).  In February 2012, Higgins filed an action seeking recompense for the time that he served in prison because of his criminal conviction. “After finding that Higgins could not withstand attacks to his credibility, the trial court ruled in favor of the State. Higgins appeals, asserting that the trial court erred by: (1) applying the statutory presumption of fraudulent intent, and (2) improperly relying on highly prejudicial evidence when weighing his credibility.”  The COA affirms.

William S. Ashwell v. State of MississippiPCR – William Ashwell  pleaded guilty to burglary and escape during 2006 pursuant to bills of information.  He later filed a motion for  PCR alleging that was entitled to relief because the bills of information had not been filed.  The circuit court examined the record and concluded that although not filed, they  existed when Ashwell entered his guilty pleas. The court denied relief and the COA affirms. ;

Terry E. Harris v. Eddie Michael, Jr. and Bellsouth Telecommunications, LLC – MVA – On June 10, 2010, Harris was riding with Robert Madden working for Lamar County Road Department. Madden was driving eastbound on Shears Road in Hattiesburg.   Michael was driving southbound on Weathersby Road in a BellSouth truck with attached trailer.  Both trucks approached the four-way stop at the intersection of Shears Road and Weathersby Road. As Madden made his right turn at the intersection, his truck struck the end of Michael’s trailer. Harris claimed that he suffered back injuries from the accident and that Michael’s negligence was the sole and proximate cause of his injuries. The trial court directed a verdict for Michael.  The COA reverses.

Viewing the evidence in the light most favorable to Harris, reasonable minds could differ as to whether Michael was negligent. Harris and Madden testified that Madden made a complete stop at the intersection, and that, when Madden entered the intersection, there were no other vehicles in sight. Taking the plaintiff’s testimony as true, the reasonable inference would be that Michael ran the stop sign.


Neadra Pittman v. State of MississippiPCR –  Pittman pleaded guilty in the Washington County Circuit Court to one count of embezzlement and one count of uttering a forgery. She was sentenced to  ten years with two years in the Intensive Supervision Program.  If she  successfully  completed ISP, the remaining eight years would be suspended. In February 2014, Pittman’s probation was revoked and she was ordered to serve two years and ten months.  A year later she filed a post-conviction motion  alleging her attorney was ineffective  because at the time she entered her guilty plea, she was not aware that she could receive house arrest or that the trial court could reject the State’s recommended sentence.  The trial court denied relief and the COA affirms.

Pro se PCR appeal affirmed

Ronald Mason v. State of Mississippi

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