Decisions – COA – August 16, 2016

Jimmy D. Kendall, Jr., Alexis K. Kendall, Tina Mullen King, Anita Mullen Greenwood and Virginia Taylor Mullen v. Kersh May and Wanda Gayle Mullen May – prescriptive easement – After Coleman Road was abandoned and became a private road, the Mays filed a petition to establish a prescriptive easement.   The defendants formerly allowed the Mays to use the road to access the southern part of the Mays’ property, but since 2013 they have prevented the Mays from doing so. The chancellor found that the Mays’ claim for a prescriptive easement failed as a matter of law because they could not establish ten years of actual adverse use of the road. The chancellor nonetheless ordered the defendants to allow the Mays to use the road and to give them a key to its gate.   On appeal, the defendants argue that the chancellor lacked authority to order such relief given that the Mays were not entitled to a prescriptive easement. The COA agrees and  reverses and renders judgment in favor of the defendants.

Joseph Kenyatta Davis  v. State of Mississippi – felon in possession – Officers in FLowood pulled over a  Chevrolet Tahoe because it had a “hanging” right side mirror and tinted windows and when the tag was run, it was registered to someone with a felony warrant. When it was stopped, officers smelled burnt marijuana so they order all three people in the car out and searched it.  They found marijuana and guns.  One of the guns had Davis’ fingerprint on it.  Davis, a felon, had been in the back seat. He was convicted and   sentenced to  ten years with two years suspended, and five years of supervised probation. On appeal he argues sufficiency of the evidence.  The COA affirms.

Myrtle Booth, as Executrix of the Estate of Gladys Gardner, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of Gladys Gardner v. Steven C. Williams, M.D., Southwest Surgical Specialists, LLC and William N. Dixon, M.D. d/b/a W.N. Dixon MD, PA – service of process – The trial court granted the plaintiff two extensions of time to serve process. Once the defendants were served, they moved to set the orders aside arguing that the plaintiff failed to show good cause for the extension.  The trial court agreed and dismissed the case.  The COA affirms.  While Booth is correct that she showed cause justifying the fist extension, she did not show “good cause” that would have justified the second extension.

Nathaniel Urail Cooper v. State of Mississippi  – dog fighting –  Copper was convicted of dog fighting and conspiracy to commit dog fighting and sentenced to three years and five years to serve consecutively.  (Finally someone gets convicted of animal abuse). On appeal he argues he should have gotten a circumstantial evidence instruction, sufficiency of the evidence, etc.  The COA affirms.

Jason McManus v. State of Mississippi – sexual battery – McManus was convicted of sexual battery of his then girlfriend (and now wife’s) 14 year old daughter.  He was sentenced to  thirty years  with fifteen years suspended and five years of supervised probation.   On appeal he argues only sufficiency of the evidence.  He loses.

Winfred Forkner v. State of MississippiMRCP 60(b)/pcr –  Forkner and April Harrison were charged with having stolen  air-conditioning units from two hunting camps. Fortner was indicted as an habitual and found guilty on one of the two counts.  He was sentenced to life without parole.  He lost on direct appeal and filed three pcrs which were all denied.   In  January 2014, Forkner filed a motion under for relief under MRCP 60(b).  The trial court denied it and he appealed.  The COA dismisses the appeal. “Forkner’s motion is not a proper Rule 60(b) motion, and the supreme court denied all requests for permission to file a PCR motion. Accordingly, the circuit court lacked jurisdiction to consider Forkner’s motion, and we lack jurisdiction over his appeal. Forkner’s appeal is dismissed.”

Dennis L. Pearson v. Patricia S. Pearson Browning –  contempt – The Pearsons were divorced in 2002. In 2005, the agreemenmt was modified but because of Katrina, neither Dennis nor his attorney signed it.  Later they both filed for contempt.   Patricia argued that  Dennis had failed to deliver her a quitclaimdeed to their marital home and failed to pay her portions of his civil service retirement.  The chancellor found Dennis in contempt.  He appeal arguing that (1) the chancellor’s entry of the October 13, 2005 agreed order of modification was invalid because neither Dennis nor his attorney signed the order; (2) his oral agreement to transfer an interest in land to his ex-wife was void as a matter of law; and (3) the chancellor should have recused himself. The COA affirms.

Sarah Smith v. James Williams paternity/child support – Smith filed a petition for paternity and child support.  The parties stipulated to payments of $1170 a month but Sarah appeals the denial of related expenses and the mere award of only $1000 in attorneys fees.  The COA affirms mostly on the basis that support for the fees and expenses were not in the record.


2 thoughts on “Decisions – COA – August 16, 2016

  1. “McManus was convicted of sexual battery of his then girlfriend (and now wife’s) 14 year old daughter.” She MARRIED him? Dear lord. That poor girl. I hope she lives elsewhere.

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