Decisions – COA – Oct. 5, 2016

 

Elmer Gene Farris v. Rebecca Lee Jones Robertson Farris –  divorce/attorneys fees/life insurance – Becky  was granted  a divorce from Gene on the ground of habitual cruel and inhuman treatment because the court found that Gene knew that he might have herpes but failed to tell Becky and transmitted the disease to her.  Gene appeals. The COA affirms the the granting of the divorce based on habitual cruel and inhumane treatment.  It also affirms the division of property and the award of alimony but reverses the award of  $9,228.40 in  attorneys fees  to Becky because the evidence did not establish that she could not pay the fees.  It also reverses the order that Gene maintain a $200,000 life insurance policy for Becky’s benefit.

“An alimony payor ‘may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.’” Coggins v. Coggins, 132 So. 3d 636, 644 (¶35) (Miss. Ct. App. 2014). Here, Gene’s total alimony obligations are only $58,500. Accordingly, the chancellor’s requirement that Gene maintain a $200,000 insurance policy was excessive.

Jemarcus Curry  v. State of Mississippi – 404(b)/prior prison violations –  – Curry, an inmate at CMCF,   was convicted of two counts of simple assault on a law enforcement officer. On appeal he argues that  the trial judge erroneously permitted the prosecutor to cross examine him about his prior disciplinary violations; failed to give a limiting instruction; and  because of improper arguments by the prosecutor and ineffective assistance of counsel.  The COA finds that the prior violations were admissible because Curry testified that he acted in self defense because he was in fear of guards thus opening the door to Curry’s prior violations involving threatening guards.

Andrew Acie Adams  v. State of Mississippi search pursuant to drug dog alert – Adams was convicted of possession of 250 or more grams of marijuana and sentenced as an habitual to 16 years without parole. The drugs were found in Adams vehicle after officers came upon it double parked and allowed a drug dug to sniff it.  On appeal, Adams claims that the officers falsely claimed that the drug dog had alerted to the presence of drugs.  The COA affirms finding that Adams failed to object for this reason at trial and that the issue is not supported by the record.

Thomas Pustay  v. State of Mississippisex abuse of a child –  Pustay was a chief investigator with the Pass Christian Police Department.  In  2005, Jane, his biological niece and adopted daughter, reported to school officials that her father had been touching her and having sex with her over the past six years.    Pustay was convicted of gratification of lust and  sexual battery of a child.  He raises 12 issues.  The first has to do with the testimony of his wife Karen.  Karen told police that Pustay admitted the abuse.  At trial she denied it and the state was allowed to go into great detail to impeach her with her prior statement.  The COA affirms.

The University of Mississippi Medical Center v. Leontyne Littleton, Individually, and on Behalf of the Estate of Cleopatra Littleton, Deceased, and Her Wrongful Death Beneficiaries  – medical malpractice/ Tort Claims Act – In February 2009 Cleopatra Littleton was seen by several doctors over several days complaining of a severe headache and other symptoms. Eventually she landed at UMMC which diagnosed her with meningitis, prescribed her antibiotics and admitted her to the floor for monitoring.  A few days later, her brother found her dead in her bed at UMMC.  Her family sued and the trial court found UMMC liable and awarded the maximum of $500,000.  UMMC appeals and raises several issues including 1) that the court should not have let an ER doctor testify to the standard of care for a hospitalist,   2) the court erred  in failing to grant a directed verdict where the only evidence of causation was purely speculative testimony, that Cleopatra would have recovered from an unknown illness and received an unknown treatment that would have saved her life, had she been admitted to the ICU and 3) that the  trial court’s judgment in favor of Littleton was not based on substantial credible evidence because Littleton failed to provide competent expert testimony on the issue of causation.  The COA reverses and renders finding that the testimony of Plaintiff’s expert  Dr. David Wiggins was insufficient to prove causation.

In the matter of the Estate of James Oldrum Smith, Jr., Deceased: James Oldrum Smith, III and Patrick Smith v. Lela Smith Flowers and Lyn Smith – codicil –  James Smith died in 2006.  His will was probated along with three codicils.  The third codicil was prepared without the assistance of a lawyer. It stated that :  “J.O. Smith, III will receive in the event of my death 41% of the shares that I own in Big River Shipbuilders, Inc., Vicksburg Plant Food, Inc. and Yazoo River Towing, Inc. Patrick Smith and Lela Smith Flowers will receive 39% of the stock that I own in Big River Shipbuilders, Inc. and Vicksburg Plant Food; and 29% of the stock of Yazoo River Towing, Inc. divided equally.”  The chancellor held that the codicil was not ambiguous ans disallowed any extrinsic evidence as to its meaning.   The COA reverses finding that when the codicil is considered along with the facts of the companies’ corporate ownership, Smith’s intent in writing the codicil becomes unclear. “Based on these different interpretations, bequest three could either mean that Big J.O. intended to convey the shares he owned, or that he intended distribution of the total percentage of the company.”

 

In the Matter of the Conservatorship of the Estate of Mary Elizabeth Brewer Jackson: Mary Elizabeth Brewer Jackson v. James E. Reed, Conservator of the Estate of Mary Elizabeth Brewer Jackson – conservatorship – In 2012, 93 year old Mary Jackson executed a power of attorney to allow her nephew James Reed to act on her behalf.  A year later, Sherry Winston was hired to be Reed’s caregiver.  A few months later, Winston and another of Jackson’s releatives drove her to North Mississippi to look into an asssisted living facility.  During this trip, the relative contacted an attorney about giving power of attorney to Winston and revoking the POA in favor of Reed.  Reed then filed a petition for a conservatorship.  The Court ordered that she be seen by three doctors.  One diagnosed her with advanced dementia and found her incompetent.  Another also found her incompetent.  A third determined she was competent.  The Court found her incompetent and appointed Reed as her conservator.  The Court denied the request by Robinson’s attorney for attorney fees.  Robinson appeal.  The COA affirms finding that the chancellor did not err is granting the conservatorship and in appointing Reed as her conservator.  Nor did he err in refusing to grant Jackson’s attorney attorneys fees.   Nor did the chancellor err in granting a TRO to freeze Jackson’s assets pending the final decision on the conservatorship.

Michael B. Gaffney v. City of Richland, Mississippi – zoning – The City of Richland demolished a house built by Michael Gaffney at 126 Hemlock Drive when Gaffney failed to complete the house after 10 years.  Gaffney was issued building permits in 2002.  In 2012, the City ’s building official voided the earlier building permits due to lack of construction activity and ordered Gaffney to remove all personal property. Gaffney objected and the Board of Aldermen agreed to hear his objections at a meeting in August 2012 but Gaffney did not show.  The City then filed a complaint seeking permission to demolish the house.  Nevertheless, the City issued Gaffney new permits at no extra charge giving him  until mid June of 2013 to bring the building up to code.  When Gaffney failed to do do, the City filed an Amended Complaint requesting an injunction that required Gaffney to complete construction within a court-ordered deadline to be established.

The Court had a hearing  wherein it was established that Gaffney was building  the house himself and operating his power tools via an extension cord running from his house next door (instead of installing  a temporary power pole and making arrangements with the power company to supply temporary power during construction).  Gaffney complained that he had had various medical problems keeping his from finishing the project.  The Court gave Gaffney time to complete his house.  Gaffney reported he had done so.  The City inspected it that same day and found this to be untrue.  The Court then issued an order allowing the City to proceed with demolition and ordered Gaffney to pay  the City attorneys’ fees and costs in the amount of $8,232.82. Gaffney appealed. The COA reverses and remands for an order of dismissal fidning that the chancery court lacked jurisdiction.

Mississippi Code Annotated section 11-51-75 (Rev. 2012) sets forth the procedure for appeals from judgment or decision by municipal authorities. “[Section 11-51-75] states that the person aggrieved may ‘embody the facts, judgment and decision in a bill of exceptions’ which will be transmitted to the circuit court acting as an appellate court.’” Van Meter v. City of Greenwood, 724 So. 2d 925, 928 (¶7) (Miss. Ct. App. 1998). ¶22. Because the “governing municipal authority” (i.e., the Board) was the appropriate 7 entity to conduct a hearing, with any appeal being to the circuit court, the chancery court lacked jurisdiction over any claim brought under section 21-19-11. See Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014) (“the issue of subject-matter jurisdiction may be raised at any time in the proceedings, including on appeal.”).

 

 

Stephanie Leigh Kittrell v. Stan Edward Kittrell – alimony  –  The Kittrells were divorced after 14 years of marriage and having had one son.  The agreed order had Stan giving Stephanie his PERS retirement check each month and with  $250 a month of that considered as child support.   A little over a year later Stan moved to modify the terms.  The chancellor granted Stan physical custody and terminated child support. Two years after that, Stan moved to terminate alimony claiming Stephanie had been incarcerated and was using the alimony to pay for drugs.  AT the hearing, Stephanie testified she used meth from 2005 to 2011 and lived with her boyfriend from 2005 to 2009.  However, she was no longer using drugs, the criminal charges had been dropped, and she was living with her mother.  The chancellor terminated alimony finding that Stephanie had used drugs on and off and she had lived with her boyfriend on and off entering into a de facto marriage.  The COA reverses.  First of all, the COA notes the almost impossible of determining whether the payment arrangement here was periodic or lump sum alimony.   Because the way it is written fails to conform to either, the Court holds that it should be enforced as written.  Nor was there sufficient evidence to find that Stephanie entered into a de facto marriage with her one-time boyfriend.

Douglas Michael Long, Jr. v. David J. Vitkauskas – service by registered mail – Long sued Vitkauskas for alienation of affections.  Vitkauskas moved to dismiss based on insufficient service of process because Vitkauskas was served via MRCP 4(c)(5) – via registered mail – and someone other than himself signed the return receipt.  The circuit court granted the motion and the COA affirms. Restricted delivery requires the person to whom it is addressed to either sign for it or refuse it and there was no reason to find that the person who did sign for the envelop had authority to sign it for Vitkauskas.  Nor was it error for t he court to not allow Long addictional time for service. “Here, Vitkauskas clearly did not sign the return receipt. And Long could have attempted to serve process again or filed a motion for additional time.”

 

Pro se PCR appeals affirmed:

Daniel Keith Singleton   v. State of Mississippi

 

Chad Joseph Venezia  v. State of Mississippi

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