Decisions – COA – Jan. 3, 2017

 

Marci Sklar Teal v. Elaine Jones – alienation of affections – John and Marci were married in December 2005. John was a convicted felon who was on probation during his relationship with Marci.   John worked as a boat captain and was home for only a few weeks out of the year.  John asked Marci for a divorce in January 2008. Four months after he married Marci, John met Lainey and it was love at first sight.   They began an affair three months later. John asked Marci for a divorce in January 2008 and the divorce was final in June 2008.

According to Marci, a few months after her divorce, she and John reconciled with each other and resumed their relationship from the fall of 2008 to the spring of 2009. She testified that in the spring of 2009, she discovered e mails between John and Lainey and that is how she discovered their relationship.  At that point, she ended her relationship with John.  Marci testified that she preserved the emails for use in this case,  but she deleted all of her emails between herself and John. When Lainey attempted to get access to Marci’s computer to the the lost e mails,   Marci  testified she threw one of her computers away, and that her work computer was being stored by an ex boyfriend.  When ordered to produce the computer, she claimed it had been sold to an unknown buyer. The jury returned a verdict finding in favor of Marci on her claim for alienation of affections. However, the jury awarded Marci $0 in damages.  Marci appealed raising issues mostly with regard to evidentiary rulings.  The COA reverses and remands finding that the the court should not have given a spoialation instruction with regard to the computer evidence because there was no evidence she destroyed it. 

Stephen Carmody and Rowena Carmody v. Suzannah McGowanproperty dispute – neighbors McGowan and the Carmodys both claimed a strip of land that bordered their adjacent properties. The Court found for McGowan and the COA affirms.

Desmon Ray Lee  v. State of Mississippi – identification from a show-up – Lee was convicted of  attempted armed robbery and  possession of a firearm by a convicted felon arising out of a Southaven Little Ceasar’s armed robbery.  The person behind the counter refused to hand over any money and an argument ensued until the robber noticed the police were coming and fled.  Law enforcement chased the robber and found that Desmon Lee had gone through a nearby motel after stopping to throw something in the garbage.  Police nabbed Lee and took him back to the pizza place where the counterperson identified him as the robber –  a man with whom he had worked at Little Ceasar’s two years previously. On appeal Lee argues that it was error not to suppress the “show up” identification. “After reviewing the record, we find the trial court’s decision to admit the challenged identification testimony into evidence was supported by substantial credible evidence and did not amount to an abuse of discretion. We therefore affirm Lee’s convictions and sentences.”

In the matter of J.W. – involuntary commitment – J.W. was involuntarily committed after a hearing to the Mississippi Department of Mental Health.  The order was signed by a special master.  Twenty two days later, the chancellor  entered an order for his release based on the findings and recommendation of the institution.  J.W. appealed claiming he  deprived of notice and denied access to necessary documents in preparation for the hearing. The COA dismisses the appeal.

The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss.

Denham Law Firm, PLLC v. Wrongful Death Beneficiaries and Heirs-At-Law of Kimberly Ann Simmons, Deceased: David Michael Nelson as Administrator of the Estate of Kimberly Ann Simmons; David Anthony Nelson; Savannah Simmons; Misty Loper; Shannon Simmons; Rachel Benefield and Teressa Nicole Nelson, a Minor, by and through her Guardian, Sheryl Phillipsattorneys fees – 54 year old Kimberly Simmons died from complications of lung cancer in April of 2011. Her family sued her doctor and his clinic claiming that her cancer should have been diagnosed after a pet scan revealed a nodule in November 2008 rather than when it was finally diagnosed in September of 2010. Suit was filed in 2012.  It settled in 2015.

According to Denham, four of the wrongful death beneficiaries and heirs-at-law of Simmons retained Denham Law Firm PLLC to represent them and signed a standard 40% contingency fee contract.   After the contract was signed, but before the case was resolved, Earl Denham fired  Kristopher Carter and Albert Jordan after a deal in which they would buy out his firm fell through.  “Unbeknownst to Denham, Carter and Jordan took the Simmons case with them, and after settlement filed a declaratory judgment action on behalf of the Simmons plaintiffs against Denham Law Firm, PLLC, to apportion attorney’s fees.”   The special Chancellor granted summary judgment and held that Denham Law Firm, PLLC, was only entitled to recover a lien for hours spent on the case and costs expended based on the provision in that contract whereby the heirs terminated their services with the Denham Law Firm ( $10,708.64 in fees and $14,791.05 in costs).  Denham argues that this was error, his firm should have recovered the 40% as per the contract  given the fact that Carter and Jordan never brought forward a contract between themselves and the beneficiaries. The COA reverses and remands finding that there was a lack of evidence to support the chancellor’s finding that the heirs terminated their relationship with Denham.

Johnny William Williams  v. State of Mississippi –  Johnny Williams was convicted of capital murder in the killing of his seventeen-month-old daughter, Jada Williams. On appeal he argues the judge should not have given the instruction no. S-3  which permitted the jury to find Williams guilty of the underlying felony of child abuse without finding he actually abused the child. Williams also claims to have received ineffective assistance of counsel due to the admission of graphic photographs of Jada’s body.  The COA affirms.

Curtis Antonio Way v. Robert G Clark, III, Esq. – wrongful termination of parental rights –  Curtis Way and  Terria Hall-Mines had  three  children, C.A.W., R.A.W., and T.K.W.  In December 2006, Way was arrested in Florida and charged with the murder of his wife or significant other (someone other than Hall Mines).  Hall-Mines and her husband, L.G. Mines, filed a petition in the Chancery Court of Holmes County, Mississippi, to terminate the parental rights of Way and to adopt T.K.W.  Robert G. Clark III represented them and Glen Moore was appointed guardian ad litem. The court terminated Way’s parental rights and declared the minor child to be adopted by Mines. Way was not present at the hearing. The chancery-court judgment indicates Way was served with process by publication, as Hall-Mines and Mines represented that Way’s residence and address were unknown to them after a diligent search and inquiry. In 2013, Way filed a complaint  against Moore, Clark, Hall-Mines, and Mines and alleged he was never notified of the petition to terminate his parental rights and alleged that  Moore, Clark, Hall-Mines, and Mines knew or should have known of his address in Florida and failed to perform a diligent search and inquiry to ascertain the information.  The circuit court found it lacked jurisdiction, as the complaint derived from a chancery-court matter. The circuit court further found Way failed to properly plead the claim of fraud. As a result, the circuit court granted Clark’s motion and dismissed Way’s complaint with prejudice.  Way appealed. The COA agrees that the  circuit court lacked subject-matter jurisdiction “but reverse the circuit court’s dismissal with prejudice and render the judgment of dismissal to be without prejudice.”

Linda J. Windham v. Mississippi Department of Employment Security –  unemployment benefits – Windham was employed with Pioneer Community Hospital  as a purchasing clerk.  SOme years after she started, she was trained on a  new computer system.  Her performance on the new system was unsatisfactory.  After several warnings, she was fired and denied unemployment benefits. She appealed up the chain of appeals arguing that her inability to perform did not amount to misconduct.  The COA affirms. “[D]espite training on multiple occasions, as well as two warnings, Windham continuously failed to properly perform the required tasks. Windham’s poor job performance was not due to her inability to perform, as Windham admitted to management she knew how to performher job tasks. Windham’s repeated errors, taken as a whole, demonstrate a substantial disregard of Pioneer’s interests or of Windham’s duties and obligations to Pioneer.”

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s