Decisions – COA – Aug. 2, 2016

Edward Springer v. Ausbern Construction Co., contract – Chickasaw County needed 1.398 miles of road constructed.  Ausbern planned to submity a bid and consulted the County Engineer  Edward Springer to get specs.  Ausburn’s bid was the lowest and it did the road.  Afterwards it realized that the amount of “topping” (asphalt overlay) used was much more than that estimated by Springer  and contacted Springer and the State Aid office to make a claim for the excess material.  Springer responded and admitted that there had been an error in the original calculations, and that the project should have taken 10,605 cubic yard of fill material.  Ausbern filed suit against the Chickasaw County Board of Supervisors for breach of contract and  against Springer alleged that Springer maliciously interfered with the contract. At the conclusion of the trial, the jury returned a verdict in favor of  Ausbern awarding  $387, 793.50 from the Chickasaw County Board of Superiors and $182,500 from Springer for tortious interference of a contract.  The COA reverses and renders.

We find that Springer acted within the scope of his responsibility to the County and without bad faith. Because his actions were not “without right or justifiable cause,” the element of tortious interference that constitutes malice was not satisfied. We also find that the claim against Springer implicates the Mississippi Tort Claims Act, and that Springer’s motion to dismiss due to lack of pre-suit notice should have been granted. We therefore reverse and render the verdict against Springer.


Wilkinson County Senior Care, LLC, Trend Consultants, LLC and Charles Bruce Kelly v. Edith Kirkland, Individually, and on Behalf of and for the Use and Benefit of the Wrongful Death Beneficiaries of Maggie GlidewellarbitrationMaggie Glidewell was admitted to WCSC in December  2010.  Her granddaughter, acting with a valid power of attorney with healthcare provisions, signed an admission agreement on Glidewell’s behalf.  In 2012, Glidewell  was admitted to the hospital for severe dehydration and urosepsis, and died the next day.  Her family sued and the nursing home moved to compel arbitration as per the admission agreement.  The trial court denied the motion because the agreement was not signed by  a WCSC representative as required by the express terms of the arbitration provision.  and the nursing home filed an interlocutory appeal.  The COA reverses.

Although WCSC did not sign the admission agreement, the nursing facility provided its services to Glidewell and was compensated for its services pursuant to the terms of the admission agreement. As seen in Slater-Moore, when the contract provisions are part of the same document, assent to all of the terms of the contract can be inferred through the parties’ actions of payment or provision of services. In this case, the actions of both parties clearly evidence mutual assent to the terms of the admission agreement as a whole.


 Jamie C. Payne v. State of Mississippi Batson –  Payne was convicted of robbing a customer of her purse outside a store in Hattiesburg.  He was sentenced to fifteen years.  On appeal he argues that the trial court erred in allowing the state to strike an African American woman where the state’s reasons were that it had prosecuted people with her last name and in the area where she lived on drug charges. The COA finds that living in a high crime area is a race-neutral reason. He also argues that the court should have granted a mistrial when the state argued that “We asked you in the beginning of this case to make Jamie Payne take responsibility for what he did. He has not done that. He has put you in the position of having to make me do that. That’s what we are here for.”  Payne did not object. The COA finds the remarks improper but affirms based on the standard of review and the evidence against Payne.

Robert W. Triplett, Jr. v. State of MississippiLindsey brief – Triplett was convicted of exploitation of a child and sentenced to  forty years.  On appeal the COA reversed the habitual-offender-status portion of Triplett’s sentence and remanded solely for resentencing. Triplett v. State, 145 So. 3d 1256, 1260 (¶¶15-16) (Miss. Ct. App. 2014).   (finding the State failed to prove that the charges used to prove habitual-offender status arose from separate incidents). On remand, the trial court ordered Triplett to serve forty years.  Triplett’s appellate counsel filed a Lindsey brief.  Triplett filed his own brief  alleging  that his sentence was illegal (because at his age – 31 – 40 years is a life sentence), that the trial court erred by denying him the opportunity to represent himself and refusing to hear his motion to reconsider the denial of his motion for a directed verdict. The COA affirms.

Donald White v. State of Mississippi – –  time for filing motion for new trial is ten days – White  was convicted  of selling one-tenth of a gram of methamphetamine  and given an enhanced sentence of 15 years.  On appeal he argues only weight of t he evidence.  The COA affirms because his motion for new trial was not timely filed.

“[Uniform Rule of Circuit and County Court] 10.05 requires that a motion for a new trial must be made within ten days of the judgment, and in the case of a motion for JNOV, the motion must be made either within the ten days or by the end of the term of court.” Wells v. State, 73 So. 3d 1203, 1206 (¶7) (Miss. Ct. App. 2011) (quoting Ross v. State, 16 So. 3d 47, 53 (¶7) (Miss. Ct. App. 2009)). White’s judgment of conviction was entered on November 19, 2014. So to be timely, White’s motion for a new trial would have to have been filed within ten days of that date. See Conwill v. State, 168 So. 3d 1080, 1084 (¶19) (Miss. Ct. App. 2013). Instead it was not filed until January 29, 2015.


Cathy F. Roberts v. Public Employees’ Retirement System of Mississippi –  disability – Cathy Roberts was employed as a psychologist for the Ellisville State School.  In January of  2001, she  was assisting with an aggressive patient who ended up kicking  Roberts twice making her fall on the floor and then against a wall.  Although she did not feel immediate pain, she  did complete an incident report. Approximately one to two weeks later, Roberts could not get out of bed due to lower-back pain.   In December 2011, Roberts applied for duty-related disability benefits based upon a disability she claimed resulted from this injury.  PERS denied her benefits.  On appeal this was affirmed.  She appeals arguing that PERS’ decision is not supported by substantial evidence.  The COA affirms.

Anthony Owen Pullen v. Stephanie Lake Pullen –  division of marital assets – Anthony and Stephanie were married for 26 years and had one daughter when Stephanie filed for divorce in 2013.  After a trial, the chancellor divided the marital assets and ordered Anthonyto pay Stephanie $2,500 per month in periodic alimony and $15,000 in attorney’s fees.  Anthony appeals, asserting the chancellor erred in (1) dividing the marital assets; (2) awarding alimony to Stephanie; and (3) awarding attorney’s fees to Stephanie. Stephanie filed a motion requesting attorney’s fees on appeal. The COA affirms and awards Stephanie  $7,500  for her attorney’s fees associated with the costs of this appeal.

John Andrew Bevalaque v. State of Mississippi  – pcr/involuntary plea –  Bevalaque was indicted on  on seven counts of exploitation of a child.  He pleaded guilty to six counts; one count was  nolle prossed.  He was  sentenced to thirty-five years on each count, with ten years suspended, to be served concurrently.  Three years later he filed a motion for pcr claiming that his plea was not voluntary and that he received ineffective assistance because he suffered from a mental illness (he is bipolar)  and was on medications (lithium and prozac).  The trial court denied relief without a hearing and Bevalaque appeals.  The COA affirms.  Bevalaque was questioned about his mental illness during the colloquy and, insofar as ineffective assistance goes, he presents only his bare assertions.

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