Decisions – COA – June 28, 2016 – part 2

Watkins Development, LLC and David Watkins, Sr. v. C. Delbert Hosemann, Jr., in his Official Capacity as Mississippi Secretary of State – violations of the Mississippi Securities Act – In 2010, Watkins Development was hied to work as the master planner for Meridian.   That same year. Watkins began on a project to renovate the former Belk location at Metrocenter in Jackson. To that end, he formed Retro Metro, a limited liability company.  It purchased the building with an eye toward leasing it to the City of Jackson once renovated. Watkins sought a loan to be obtained by revenue bond proceeds issued by the Miss. Business Finance Corp and recruited the investment banking firm of Duncan Williams to buy the bond.     In April 2012, Watkins defaulted on the payment of the loan.  The  Secretary of State issued a Notice of Intent to Impose Administrative Penalty and Order Restitution and Disgorgement of Profit to Watkins. After a hearing, Watkins was found to have committed four  violations of the Mississippi Securities Act.

The Secretary of State, in adopting the findings of fact of the hearing officer, found that immediately after the issuance of the bonds, each of the members of Retro Metro received a “partner distribution” of forty times their alleged initial contribution to the formation of Retro Metro. The hearing officer explained in his findings of fact that “from  an examination of the bank account of Retro Metro, it is not clear that Watkins Development . . . or one of the others required to contribute $1,500 even made their initial contribution to Retro Metro.” In adopting the findings of fact of the hearing officer, the Secretary of State held that the Loan Agreement failed to authorize Watkins’s withdrawal of $400,000 from the construction account to pay a “partner distribution.”

 

Watkins appealed to the chancery court which affirmed three violations of the Mississippi Securities Act but reversed on one of them.  Watkins appeals and finds that the chancellor erred in finding that one of the violations was not supported by the record. The COA reinstates the SOS’s final order.

Alvin Brown v. State of Mississippi –  aggravated assault instruction erroneous where did not require serious bodily injury –  Brown was convicted of  manslaughter and four counts of aggravated assault arising out of a confrontation at the  Birdland night club  between Brown and Albert Coleman.  Yatasha Johnson was shot and killed; four others were shot and wounded.  The COA reverses and remands on the aggravated assault convictions because the instructions failed to require that the jury find that the assault caused seious bodily injury.

Charlie C. Henderson  v. State of Mississippi –  – accessory after the fact to murder/ intro. of Youtube video- In 201121-year-old Aaron Coleman’s body was found near Meridian.  Coleman died from a shotgun blast to the stomach.  His murder went unsolved for a year.  Eventually, the state developed a theory that Coleman had been at a party at the house of William Michael Jordan.  When Coleman stated that he had t o leave, his friends began to kid him about having a curfew.  Jordan, who was drunk, went into his bedroom, grabbed a shotgun and came back into the living room swinging it around.  Coleman got shot.  Henderson was at the party and when another partygoer picked up the phone to call 911, Henderson ordered him to put down the phone.  Henderson, Jordan and Bobby Baker  loaded Coleman into Jordan’s car.  At about this point, Coleman died.  They drove to the location where Coleman was later found  and dumped the body.  Eventually Baker told law enforcement what had happened.  A few months later, a rap video appeared on Youtube starring Henderson which Baker interpreted as a threat on Baker’s life (since Henderson raps about killing his lifelong friend for being an informant) .  Baker subsequently testified at Henderson’s trial.  On appeal, Henderson argues that the introduction of the Youtube video was error. The COA affirms.

Jerry Bowen and Cheryl Bowen v. Amory HMA, LLC d/b/a Gilmore Memorial Regional Medical Center and Patrick Anderson Murphree, M.D. –med mal – In December  2007, Jerry Bowen underwent outpatient surgery on his right shoulder at  Gilmore Memorial Regional Medical Center.  (Amory HMA).  The consent form he signed noted that risks included  “loss of sensation, loss of limb function, [and] paralysis” from the  anesthesia.  After surgery, Bowen experienced continuous numbness and weakness in his shoulder.  He sued.  The defendants moved  for summary judgment  arguing that Bowen failed to produce “any competent medical evidence to establish that any of the Defendants deviated, in any way, from the applicable standard of care” or caused the alleged damages.  The trial court granted summary judgment and the COA affirms.

 Willie Joe Green v. State of Mississippi – reversing where defendant convicted on charges that DA agreed to remand as part of plea –  In  2011, Green was indicted for some sale of cocaine charges.  He pleaded guilty as a second drug offender to the sale of cocaine and  was sentenced to ten years.He also pleaded guilty as a second drug offender to possession of cocaine in another case  and was sentenced to a consecutive four years. “According to Green’s understanding of his plea agreement, corroborated by statements made by his trial attorney during the plea hearing, Green would not be indicted for any outstanding, unindicted drug cases that existed at that time.”   However, in  2012, Green was indicted again in Leake County on one count of the sale of cocaine as a habitual and second drug offender.  Judge Marcus D. Gordon accepted Green’s guilty plea but sentenced him to thirty years instead of the eight agreed to by the state.  Green filed a post conviction motion arguing that the original plea agreement prevented the state from pursuing further drug charges, After a hearing the trial court denied relief.  Green, representing himself, appealed. The COA reverses and renders since the transcript of the original plea includes a statement that the state agreed to drop all charges including unindicted ones and no one objected to Green’s attorney’s description of the agreement. 

 
Daniel Copple v. State of Mississippi and Gloria N. Clark a/k/a Gloria Nikki Clark in her Capacity as Court Reporter for the Lowndes County Circuit Court  – complaint for discovery  or pcr? In 2011, Copple was convicted of two counts  murder.  The convictions were affriemd on direct appeal.  He then filed a filed a complaint for discovery in the Lowndes County Chancery Court seeking to obtain a court reporter’s backup audio recordings of his criminal trial in the hope that they might be useful in a collateral attack of his convictions. Construing Copple’s complaint as a motion for post conviction relief, the chancery court dismissed it for lack of subject-matter jurisdiction. The COA affirms.

Vijay Patel, Individually, as Next of Kin, and on Behalf of the Estate of Natwarlal Patel, and for the Use and Benefit of the Wrongful Death Beneficiaries of Natwarlal Patel, Deceased v. Hill-Rom Company, Incorporated  – statute of limitations  –   In December 2007, Natwarlal Patel, was hospitalized for shortness of breath, weakness, and lethargy. On December 19, 2007, Natwarlal was found lying on the floor of his room. He died on  January 5, 2008 from injries to his head from the fall.  In February  2013, his son filed a complaint alleging that VersaCare hospital bed manufactured by Hill-Rom was defective.  The trial court dismissed the complaint on statute of limitations grounds. The COA affirms.

Derek May v. Kira Arthurs visitation and breast feeding –  Derek and Kira had a child, Mason, on January 29, 2014.  Derek filed a complaint for an adjudication of paternity.  The chancellor allowed  Derek visitation every other weekend from Saturday at 10 a.m. to Sunday at 4 p.m. but determiend that summer visitation could not begin until after  he  was totally weaned from breast milk, whichever occurred first.  Derek appealed asking  (1) Should the choice to breast-feed interfere with the standard visitation of fathers? (2) If so, how long should standard visitation be restricted? The COA reverses.

 The record before this Court fails to demonstrate that the restriction on summer visitation was reasonable or necessary to prevent harm to Mason. Rather, Kira offered every other-week visitation in the summer until Mason was older. Kira testified that while Mason was an infant, she “would like it to be a little more consistent.” It was the chancellor whose “only concern [was] the breast-feeding.” Therefore, we vacate the chancellor’s summer visitation award and remand the case for the chancellor to revisit the issue of summer visitation consistent with this opinion. However, we affirm the chancellor’s weekend visitation award.

Bruce Cope, Mary Cope and Ike W. Thrash v. Thrasher Construction, Inc.   validity of subcontractor’s lien – This is another rebuild-after-Katrina case having to do with the validity of a subcontractor’s lien filed by Thrasher against the Inn by the Sea condos after the general contractor hired by the owners of Inn by the Sea made a complete mess of things and had to be fired. The COA reverses finding that the trial court erred in allowing Thrasher to proceed on a claim for quantum meruit where a contract was involved and that it was error to dismiss the third party beneficiary breach of contract claim.

Gordon Kleyle v. Myrna Deogracias and Philip Deogracias, Individually and/or d/b/a The Railroad Cafe, LLC  leaseIn 2007Kleyle leased a building in Poplarville to the Deograciases to  operate a new restaurant, The Railroad Café.  When the  Deograciases stopped paying rent,  Kleyle sued. In time,  the Deograciases filed a motion to add AGS as a party to the case on the ground that AGS owned the property at issue  which it had subleased to Kleyle. In response, Kleyle argued that AGS was not a necessary party because the Deograciases’ debt was to him, not AGS, and because AGS owned only the land, not the leased building. The circuit court granted the motion finding that [AGS] was a  necessary party.  The Deograciases then  filed an amended answer claiming that  Kleyle had violated the anti-assignment/sublease provision contained in the lease between AGS and Kleyle. The court granted the Deograciases’ motion, and dismissed the complaint with prejudice based on the “plain language” of the anti-assignment provision of the AGS-Kleyle prime lease. The COA reverses finding that the anti-assignment provision was for the benefit of the landlord and did not operate as an excuse for the Deograciases to not pay rent.

 

 

 

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