Decisions – Miss.S.Ct. – July 21, 2016

Rodney D. Rushing v. State of Mississippi –  Lindsey brief – Rushing was convicted of unlawful possession of at least 2 but less than 10 dosage units of amphetamine and sentenced to 3 years as an habitual.  His attorneys filed a Lindsey brief (certifying they could find no issues).  The Court affirms.

Richard White  v. State of Mississippi –  instructing on underlying felony of larceny in trial for burglary – White was convicted of burglary of a dwelling and Sentenced to 25 years.  The jury was instructed it could find White guilty of burglary of a dwelling if it found he broke and entered the home “with the intent to commit the crime of larceny and/or assault therein.” The jury was given the  elements of aggravated assault but not larceny.  White appealed arguing that the failure to do so was error.  The COA affirmed.  The Miss.S.Ct. granted cert. and also affirms  “[c]onsistent with this Court’s recent decision in Windless v. State, 185 So. 3d 956 (Miss. 2015).”  White failed to object to at trial.  Furthermore, “[c]onsistent with Windless, use of the word ‘larceny’ as it is commonly used and understood by the general public was sufficient in this case to define for the jury the requisite intent needed to support a conviction of burglary.”

 

David Glen Nunnery and Jene’ Nunnery v. Paul Edward Nunnery and Glenda Nunnery Lord, as Co-Executor-Executrix of the Will and Estate of Joseph L. Nunnery, Deceased and Annie Louise Young Nunnery –  extension of time to file notice of  appeal –  This was a land dispute.  A final judgment was entered on June 20, 2012.  Davis and Jene Nunnery filed a motion for reconsideration on June 29, 2012.  On October 1, 2013, the Court denied the motion. On  November 19, 2013, filed for an extension of time to file their notice of appeal on the grounds their attorney’s brother had been  injured in a car wreck  and placed on life support in North Carolina.  The brother eventually died.  At the hearing on the motion, the attorney stated he learned of the car accident on October 22, 2013, when he still had eight days to file the notice of appeal. The chancellor denied the motion for an extension. The COA affirmed.  The Miss.S.Ct. granted cert. and also affirms. “The instant case presents a difficult factual situation and outcome. In the wake of an attorney’s family tragedy, the defendants missed their deadline for filing their notice of appeal. The chancellor denied the defendants’ request to extend the time to file the notice of appeal. We discern no abuse of discretion by the chancellor and affirm.”

Bay Point Properties, Inc.  v. Mississippi Transportation Commission and Mississippi Department of Transportation –  inverse condemnation – In 1952, the Mississippi State Highway Commission acquired an easement over certain property of Wallace Walker for “all highway purposes” in order  to reconstruct a bridge spanning the Bay of St. Louis, between Pass Christian and Bay St. Louis, after the bridge had burned in 1948.  After Hurricane Katrina destroyed the bridge in 2005, MTC constructed a newly designed bridge.  MTC entered an agreement with Harrison County, which provided that (1) MTC would build a park, (2) Harrison County would maintain the park, (3) Harrison County would provide MTC any additional property required to build the park, and (4) MTC would maintain its property interest (its easement) in the park. MTC then built a park, with a parking lot, on the old road bed, with stairs connecting to the new bridge, which included a walking and biking path for the public.  Bay Point (Walker’s successor in interest)  filed inverse condemnation proceedings claiming the easement terminated on the whole property when the new bridge was constructed following Katrina.    The jury  returned a verdict  of $500 for Bay Point but the court denied Bay Point’s motion for attorneys’ fees, costs as well as a motion for additur.  Bay Point appealed.  The Court affirms everything but the denial of attorneys fees and costs.

The Court grants cert in William Michael Jordan v. State –  (link is to COA opinion) – involving the  introduction of a rap video about snitches –  William Jordan and his codefendant, Charles Henderson, were charged with killing their acquaintance  Aaron Coleman.  On appeal they argue that it was error to admit into evidence that they  participated in a rap video about killing snitches—a video published on YouTube after the two witnesses had implicated Jordan and Henderson but before Jordan’s trial commenced.  The COA finds this was not error.  Now was Jordan entitled to an accomplice instruction with regard  to the testimony of the two eyewitnesses since they were charged as accessories after the fact and not as accomplices. Here’s the petition for writ of cert. 

And grants cert in Shirley Adams v. Graceland Care Center of Oxford  (link is to COA opinion) regarding the  effect of failure to disclose lawsuit in bankruptcy – After Shirley Adams’ mother died while living at Graceland Care Center, she filed suit in 2008, against the nursing home for wrongful death.  Some four years previously, Adams had filed a chapter 13 bankruptcy and had been making payments all along.   She completed her bankruptcy plan without amending her bankruptcy case to disclose the wrongful death lawsuit as an asset.  During the plaintiff’s deposition, the defendants learned of the bankruptcy and filed to dismiss the wrongful death case on this ground.  Adams moved to reopen her bankruptcy case.  After a hearing the trustee decided she would abandon any settlement given that the unsecured claims amounted to $4,719.53.  Thereafter the trial court in the wrongful death case granted the motions to dismiss.  On appeal, Adams argues that her failure to disclose was inadvertent. The COA reverses and remands. Here’s the petition for writ of cert. 

And the Court appoints board members of the Board of Certified Court Reporters

as set out in the Order to serve two-year terms commencing on July 1, 2016, as herein designated, or until such time as a successor shall be appointed. Each person appointed as a member of the Board of Certified Court Reporters shall take an oath of office and shall file a copy of that oath with the Supreme Court Clerk. In the event a member cannot continue to serve on the board, that board member shall immediately notify the Chief Justice and the appropriate nominating entity in writing. Should a vacancy otherwise occur, the Chairman of the board shall immediately notify the Chief Justice and the appropriate nominating entity in writing. The Clerk of the Court shall forward a certified copy of this order to the appointees, the Office for the Board of Certified Court Reporters, and the Secretary of State. Order entered 6/29/16.

 

 

 

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