Decisions – COA – Dec. 13, 2016 – part 2

 

Melissa Langley, Wife of Joe (Joey) Langley, Deceased, Dakota Langley, Colton Langley and Harley Langley v. Waddle Trucking, LLC and Dallas National Insurance Company – workers comp. – Joe Langley died of a heart attack while driving an eighteen-wheeler for his employer, Waddle Trucking LLC. The medical examiner’s certificate stated that the immediate cause of death was “hypertensive and atherosclerotic cardiovascular disease.” His widow filed for workers compensation benefits.  The ALJ denied compensation noting that Langley was 42 years old, overweight, and  there was nomedical proof showing that Langley’s preexisting atherosclerotic cardiovascular disease, combined with his work, produced a compensable injury.  The Commission affirmed as does the COA.

Anderson White, II v. Barbara White – habitual cruel and inhuman treatment divorce – After seven years pf marriage, Barbara White  filed for a divorce from Anderson claiming uncondoned adultery and habitual cruel and inhuman treatment. She was granted a divorce on the ground of habitual cruel and inhuman treatment and  awarded two homes and one vehicle. On appeal, Anderson argues that the proof was insufficient and the division of marital property was erroneous.   At trial, Barbara testified that in 2005, Anderson choked and struck her, resulting in a black eye, after Barbara failed to return home directly after completing an errand for Anderson.  She also testified that they got into an argument  the shrimp and fish Barbara was preparing for dinner when Anderson ran upstairs and Barbara , her mother and her sister all heard  a gun “click.”The COA affirms.

Marcus H. Harris  v. State of Mississippi – pro se PCR appeal affirmed.

Margaret Magers v. Diamondhead Resort, LLC –  premises liability –  Magers sued Diamondhead after she was  sexually assaulted in the hotel lobby bathroom by Alfredo Mongoy Cruz, an undocumented worker.  At the time,  Diamondhead only had one security guard on duty. A Hancock County jury returned a verdict in favor of Diamondhead. On appeal Magers argues that   the trial court erred in giving certain instructions regarding what was needed to find liability as well as with regard to proximate cause,  in not allowing her  to cross-examine the security guard  regarding his previous felonies, and to prohibit reference to Cruz’s status as an “illegal immigrant.” The COA affirms.

Eddie Williams  v. State of Mississippi – burglary – Williams was convicted of five burglaries occuring in Lowndes County.  On appeal he argues sufficiency of the evidence. The COA affirms.

Joe S. Cane    v. State of Mississippi – timeliness of notice of appeal – Cane filed a pcr motion in the trial court to attack his guilty pleas to sexual abuse of a child.  The trial court denied relief and the Cane appealed.  The COA dismisses the appeal, though, because he did not file a timely notice of appeal.

Brymon Hamp, Jr. v. State of Mississippi suppression of evidence – Hamp was convicted of capital murder in the killing of the 2010 killing of liquor store owner Gerald Simmons.  Simmons was found lying on the floor semi-conscious and with gashes to his head, and blood spatter throughout the store.  Simmons died at the  hospital. Simmons did indicate the he had possibly been assaulted by two young black males.  Law enforcement received a tip that the crime has been committed by Jerry Carr and another person who were driving a “black box Chevy.”  A car of that type was spotted.  Hamp was driving it.  When law enforcement attempted to pull the car over a chase ensued.  When it ended, Hamp and Carr were detained.  $304 was recoevered  from Hamp and $282 from Carr. Investigators noticed a blood stain on Hamp’s shoe, so Hamp’s shoes and later his clothes were seized. In the vehicle, a bottle of vodka was on the front seat and a case of gin was on the back seat.  Hamp filed a  motion to exclude this  evidence on the grounds that the investigatory stop was based on information from anonymous informants, that the tips bore no indicia of reliability, and that the officers did not investigate the veracity of the information.  After a hearing, the trial court refused to suppress the evidence. On appeal, Hamp argues this was error. The COA affirms.

David Lee May  v. State of Mississippisuppression of evidence – David Lee May was convicted of possession of one-tenth but less than two grams of cocaine and sentenced as a habitual offender to life without parole. The cocaine was found after the vehicle in which May was a passenger was stopped for  veering  over the fog line and into the median on Interstate 10.  When the  driver could not produce a driver’s license, he was  asked  to exit the vehicle. In frisking the driver for weapons, the officer felt a  large bulge and the driver admitted it was drugs. He was arrested.  May did not have a license so the officer arranged to have the car towed. He directed May to sit on the ground.  When May began fidgeting, the officer asked him if he had anything illegal in his possession. May said no.  The officer asked May to remove his shoes and May did so.  A Zippo lighter fell out of one of his shoes and the officer picked it up, examined it and found a plastic bag containing marijuana and  a small amount of crack cocaine.  On appeal he argues that the search of the lighter was without his consent and without probable cause. The COA agrees and reverses.

Hamin Shaheed  v. State of Mississippicourt cannot suspend part of sentence for murder – Hamin Shaheed shot and killed his girlfriend’s ex-boyfriend during an altercation at his girlfriend’s apartment complex. A Hinds County jury convicted him of first-degree murder.  The circuit court sentenced him to life  with all but twenty years suspended.   Shaheed appeals arguing that  there was insufficient evidence, and that  circuit judge erred by denying his requests for “stand your ground” and castle doctrine jury instructions. On cross-appeal, the State argues that the circuit judge lacked authority to suspend any part of Shaheed’s life sentence and that Shaheed could only be sentenced to life in prison. The COA affirms the conviction but agrees that the court erred in suspending all but twenty years of the sentence.  It therefore  remands for the circuit court to impose a life sentence with no part suspended.

In the Matter of a Transfer of Structured Settlement Payment Rights by Benny Ray Saucier: RSL Funding, LLC and RSL-5B-IL, Ltd. v. Benny Ray Saucier – sale of annuity – As part of the settlement of a personal-injury lawsuit, Benny Saucier entered a contract for the future payment of an annuity with Aviva Life and Annuity Company.  He was to receive two installments: (1) on August 30, 2010, Saucier was to be paid $150,000; and (2) on August 30, 2015, Saucier was due to be paid $200,000. He sold these payments to  Woodbridge Investments LLC  for $220,000.  Pursuant to MCA Sect. 11-57-7 the chancery court would have to approve the transaction.  In  2008, Woodbridge filed a Petition for Approval.   The chancellor approved the transfer and authorized Aviva and OneBeacon to pay the Assigned Payments to Woodbridge’s designated assignee, the Bank of Internet. A month later Saucier signed an amended transfer agreement. For various reasons, Saucier never got paid.  Saucier assigned his right to the paymets to RSL.  There were  various disputes between the parties and RSL moved to arbitrate them.  The chancellor denied relief and RSL appealed. The COA affirmed.  In re Transfer of Structured Settlement Payment Rights ex rel. Saucier, 130 So. 3d 1108 (Miss. Ct. App. 2013). On remand, RSL claimed it was entitled to damages even though it had not asserted such a claim previously. The chancellor denied the request and the COA affirms.

Shannon Rogers v. Gulfside Casino Partnership d/b/a Island View Casino Resort – bankruptcy effect on personal injury claim –  Shannon Rogers slipped and fell near the buffet at the Island View Casino in Gulfport in March 2010.    At the time of her fall, Rogers and her husband had an open Chap. 13 bankruptcy pending.  The bankruptcy court granted them a discharge of their debts in October 4, 2010, and closed  the bankruptcy  in  March  2011. Gulfside moved for summary judgment arguing that Rogers was judicially estopped from pursuing her claim  because she had failed to disclose it during her bankruptcy proceeding. The circuit court agreed with Gulfside and granted its motion for summary judgment.  Rogers appeals and the COA affirms.  “When a debtor seeks to recover on a claim that she failed to disclose in a prior bankruptcy proceeding, there are only  three requirements for judicial estoppel: ‘(1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.”  In this case the trial court did not abuse its discretion in finding that Rogers was judicially estopped.

Franklin Collection Service, Inc. v. Gwenlyn M. Collins –  appeal of denial of summary judgment after case tried – FCS filed suit to collect on a hospital bill.  A jury awarded Franklin $233.  Franklin appealed on the grounds that the trial court should have granted its motion for summary judgment wherein it sought  a judgment for $950 plus attorneys’ fees.  “However, under this Court’s precedent, the pretrial ruling on FCS’s summary judgment motion was rendered moot and unappealable once the case proceeded to a jury trial and verdict. Because the only issue raised by FCS on appeal is not reviewable on appeal, we affirm the judgment of the circuit court.”

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