Decisions – COA – Sept. 6, 2016

Push Phillips v. Hancock County Sheriff’s Dep’t  civil service firing – Push Phillips was fired as a deputy sheriff with the Hancock County Sheriff’s Department because he left the state for  thirty-six to forty-eight hours after Hurricane Katrina hit Hancock County in August of 2005. The Civil Service Commission affirmed the Sheriff’s  decision to terminate Phillips, and the Hancock County Circuit Court affirmed the commission’s decision. On appeal, Phillips argued that the commission’s decision was not supported by substantial evidence and was arbitrary and capricious. He also alleges  he was fired in retaliation for his prior civil service complaints. The COA affirms.

Daniel Fillingame v. State Fire Academystate boards and agencies –  Fillingame filed suit against the State Fire Academy after it refused to allow him to return to classes contrary to the handbook.  The circuit court ordered that Fillingame be reinstated.  Upon graduation. Fillingame received what amounted to a certificate of attendance which would not allow him to be hired by any fire department.  He filed suit and summary judgment was granted to the Fire Academy.  The COA affirms finding that Fillingame should have first exhausted his administrative remedies.

Brooke Hoffman v. Michael Hoffman – final judgment rule – Brooke filed for divorce in January 2013.  The court entered a temporary order.  A few months later,  Michael filed a motion for contempt claiming that he had been denied the opportunity to visit with his minor children. Over a year later, the  court entered an order finding Brooke in contempt of the agreed temporary order. He also denied  Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof on attorney’s fees. Brooke  filed a motion for reconsideration of the trial court’s order finding her in contempt. The court entered a final judgment denying the divorce and Brooke filed a motion for reconsideration on that.  The court denied reconsideration on the contempt but never heard the motion for reconsideration of the divorce.  Meanwhile, the court awarded  Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.  Brooke appealed the award of attorneys fees.  The COA dismisses the appeal for want of jurisdiction because Brooke has yet to obtain a ruling on her motion for reconsideration of the order denying her a divorce.

Yvonne Marlene Weirich and Karen Deborah Murchison v. Gary David Murchison and Dennis Raymond Murchison – undue influence – Clarence Murchison had a history of transischemic attacks dating back to 1988. After Clarence suffered a stroke in 2010, his son Gary began helping Clarence with his financial and business affairs:  helping Clarence pay bills, driving him on errands, and taking him to doctors’ appointments.  In 2011, Gary and Clarence set up two joint accounts at Hancock Bank and Trustmark Bank where all of Clarence’s retirement income would be deposited. Clarence also executed a will on March 2, 2011, in which he left all of his real property to his wife. In the case of her death, all of the real property Clarence owned would be left to his four children equally. On that same day, Clarence executed a general durable power of attorney and power of attorney for health appointing Gary as his agent. Shortly after that he was  diagnosed with dementia.    Clarence’s wife died in July 26, 2011. Shortly after her death, Clarence moved in with Gary.   After more strokes, Gary took Clarence to Attorney Claiborne McDonald’s office. Clarence’s youngest son, Dennis,  met them there.   Attorney McDonald had both Gary and Dennis leave the office so he could speak with Clarence alone. After Attorney McDonald spoke with Clarence, Clarence and Gary went back home. On December 19, 2012, Clarence and his two sons went back to Attorney McDonald’s office. Attorney McDonald again spoke with Clarence on the day he executed the deeds, and this conversation occurred outside the presence of Gary and Dennis. Attorney McDonald testified that he wanted to be sure that Clarence was oriented and knew what he was doing. According to McDonald, Clarence signed the new deeds and knew what he was doing.   Clarence owned five parcels. he conveyed 38 acres to his daughter  Karen, 40 to his daughter Yvonne,   100 acres of land  to Gary, and the house located in Pearl River County to Dennis. Clarence died  on January 14, 2013.  Karen and Yvonne sued to have the deeds declared void.  They wanted all of the land sold and the proceeds divided equally.  After hearing testimony, the court upheld the deeds.  On appeal, the COA affirms.

Betty Rebecca Randolph v. Daniel Lee Randolph – division of marital assets – Danny and Rebecca were married for 16 years when they separated.  Danny filed for divorce in  December  2011.  They eventually agreed on an ID divorce.  The chancellor  awarded Rebecca sixty percent of the marital property and Danny the remaining forty percent. Rebecca was awarded 28 acres, and Danny was given 6 acres (including the marital home) and the 4.7 acre tract.  Rebecca filed a  Rule  59 motion requesting that  she be awarded the marital home. She further claimed that the chancellor erred in finding the date of separation as the line of demarcation and in refusing to award her alimony. Finally, she sought clarification as to what 28 acres were awarded to her. The chancellor denied all of Rebecca’s claims except the clarification. He addressed the fact that the marital home’s driveway passed through both Danny’s and Rebecca’s properties. The chancellor recognized that both parties would need to use the driveway to access their respective properties. So the chancellor ordered an easement be granted specifically for use of the driveway. Rebecca appealed and the COA affirms.

Lacy Dodd and Charles Dodd v. Dr. Randall Hines, Mississippi Reproductive Medicine, PLLC and Dr. Paul Seagomedical malpractice/informed consent – In 2011 Lacy consulted with fertility specialist Dr.  Hines.  He recommended she have an ovarioan cyst or cysts removed.  Lacy signed a release stating, in part, “I further consent and authorize the performance of such additional surgeries and procedures (whether or not arising from presently unforeseen conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.”  Hines operated, saw that the ovaries appeared cancerous, consulted with Dr Seago ( a specialist in gynecological cancers)  and removed them.  A subsequent biopsy showed that  they were not cancerous but suffered from  non-cancerous, serous cystadenofibroma (Serous cystadenofibroma is a condition in which a benign tumor appears cancerous).  Lacy sued.  The trial court granted summary judgment for the defendants based on the release  Lacy signed. The COA reverses holding that there are two types of consent issues:  the battery based analysis and the medical malpractice based analysis.  Mississippi has not directly addressed when it is appropriate to apply which type.

[W]e find that, under the battery-based analysis of consent, Lacy did not give express consent for the removal of her ovaries and that the consent form signed by Lacy did not summarily provide consent to remove her ovaries. As the circuit court’s decision did not reach whether or not the removal of her ovaries became necessary or emergent during the medical procedure that was consented to by Lacy, nor did the judgment address any other analysis of consent pertinent to theories of medical liability, we reverse and remand.

Emily Cooley v. Lawrence J. Tucker  – who gets the engagement ring – In December 2011, Lawrence Tucker Jr. proposed marriage to Emily Cooley, and gave  a $40,000 diamond engagement ring. In November 2014, Tucker broke off the engagement. Tucker asked Cooley to return the ring, she refused and Tucker filed a replevin action.  The court ruled for Tucker and Cooley appeals. Thereafter, Cooley maintained possession of the ring despite Tucker’s requests to have the ring returned. Tucker filed a replevin action and the chancellor  ruled in favor of Tucker.  Cooley appeals and the COA affirms. Here, the chancellor ultimately determined that “[t]he engagement ring was a conditional gift presented in contemplation of a marriage that did not occur.” It is from this determination that the chancellor awarded Tucker the ring. This conclusion is supported by Mississippi caselaw and by fact.

 

Robert L. Williams, Jr. v. Ed Morgan in his capacity as Commissioner of Revenue taxes/ failure to exhaust administrative remedies –  Robert L. Williams, Jr. filed a complaint in the Chancery Court of Hinds County seeking declaratory judgment and injunctive relief regarding the Department of Revenue’s  collection activities against him for the tax years 1998, 2000, 2007, 2008, and 2009.  Specifically, Williams asked for a determination as to: (1) whether MDOR made valid assessments for the 2007, 2008, and 2009 tax years; (2) whether MDOR had failed to timely re-enroll its lien relating to the 1998 tax year and whether a refund of monies collected in satisfaction of said lien should be refunded to Williams; (3) whether MDOR should be enjoined from further collection with respect to the 1998 tax year; (4) whether MDOR’s action in issuing multiple warrants related to the same tax liability violated established guidelines; and (5) whether MDOR should be enjoined from issuing further warrants in violation of established guidelines.  The chancellor dismissed Williams’ lawsuit because he failed to exhaust administrative remedies.  Williams appeals. The COA affirms.

Tremayne Whitlock v. Albert Necaise – Whitlock hired Necaise to file a pcr and paid him $10,000.  Twelve days before the SOL ran, Necaise sent Whitlock a letter claiming that he had found no issues and that if Whitlock wanted to file his own PCR he had 12 days to do so.  Whitlock sued Necaise for breach of contract.  Necaise moved to dismiss arguing that in a legal malpractive claim, the plaintiff would have to show that but for the attorney’s negligence, he would have won.  The trial court sided with Necaise.  The COA reverses finding that Whitlock stated a claim for breach of contract.

Stephanie Dupree v. Patrick Paffordcontempt/attorneys fees  – Stephanie Dupree and Patrick Pafford had a child out of wedlock in 2008. An order was entered in 2009 establishing paternity and setting out child support and visitation arrangements. The case again came before the chancery court in 2014, on competing motions for contempt and on Patrick’s motion to modify custody. The chancellor denied Patrick’s modification action and denied Stephanie’s motion for contempt.  However, he found Stephanie in contempt for violating discovery orders and for refusing visitation. She was ordered to pay approximately $16,000 in attorney’s fees. Stephanie  appealed from that judgment. The COA affirms the finding of contempt and attorneys fees against Stephanie but finds that the court was in error for not finding Patrick in contempt where he admitted to making payments late and there was no evidence the failure to do so was not willful.  The court remands for a determination of attorneys fees to be assessed against Patrick on the contempt.

Stefan Allison v. State –  bonds on appeal from justice court – Alison was found guilty in  Hancock County Justice Court of simple assault and trespass. He was sentenced  to pay a $400 fine, plus assessments of $157.75, for the simple-assault conviction, and a $25 fine, plus assessments of $157.75, for the trespassing conviction. The justice court also set an appeal bond of $500 for each conviction.  Alison appealed his conviction and sentence to the Hancock County Circuit Court.  That court dismissed his appeal  because of Alison’s failure to comply with the completely draconion and expensive crap  one has to do to perfect an appeal from justice court (it costs more than an appeal to the Supreme Court).

The record reflects that when Alison filed his appeal, he paid the circuit clerk with a check in the amount of $109. The record also shows that on October 3, 2014, Alison filed a single bond payment of $1,000 with the circuit clerk. The bond language stated that Alison, as principal, and Donald K. Thomas, as bondsman surety, “agree to pay the State of Mississippi $1,000, unless [Alison] shall appear before the circuit court.” Alison also filed additional filing fees with the clerk’s office. The circuit clerk recorded Alison’s bond filing as simply an “appeal” bond.

On June 4, 2015, the prosecutor filed a motion to dismiss Alison’s appeal based on Alison’s failure to file a cost bond as required by Uniform Rule of Circuit and County Court 12.02. Rule 12.02(a)(1) provides: Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as 2 provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal. The failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs. (Emphasis added). The prosecutor argued that since Alison filed only what appears to be an appearance bond, and failed to file the additional requisite cost bond, the appeal has not been perfected pursuant to Rule 12.02(a)(1) and should be dismissed with prejudice.

At a hearing the justice court judge testified  that he always included the appeal bond or the appearance bond and the cost included in one bond.  And the prosecutor admitted to that as well.  “The prosecutor, however, explained that the prior common practice ‘does not excuse the requirement that [a defendant file] separate appeal bonds.” The circuit court also recognized that this was a common practice.

The COA reverses and remands.

As stated, Rule 12.02(B) provides that the amounts for both the appearance bond and the cost bond “shall be determined by the judge of the lower court.” In the case before us, Alison’s judgment of conviction from the justice court reflects that the justice-court judge assigned an “appeal bond” of $500 for each conviction. The judgment indeed fails to distinguish or set forth a separate amount for the cost bond and a separate amount for the appearance bond. The justice court judge also testified at the motion hearing: “I’ve always included the appeal bond or the appearance bond and the cost included in one [bond].” ¶19. As a result, and in accordance with our opinion in Parks, we must reverse and remand this case to the circuit court to decide whether or not to grant Allison leave to amend or correct any deficiencies in his “appeal” bond. See Parks, 194 So. 2d at 182 (¶11). We have held that “[w]hether to grant [Allison] leave to correct such errors is a matter committed to the discretion of the circuit judge.” Id.; see also Dixon, 528 So. 2d at 833; Mitchell, 804 So. 2d at 1072 (¶24).

Albert McDonald v. State –  The COA affirms the rejection of McDonald’s pro se pcr appeal.

One thought on “Decisions – COA – Sept. 6, 2016

  1. Thanks Jane,

    I’m fascinated with the disaster of Justice Court. To give a Justice Court judge the authority to arbitrarily set a “bond amount” seems preposterous.

    I represented one of our hospital employees in a CIVIL matter that ended up in Justice Court, and the JOP set bond at $3000. No local bonding agency within her county would even write her a bond, since it was a civil matter. I wonder if we would not be better off w/out Justice Court.

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