Decisions – COA – Feb. 21, 2017

Dwight Lott v. State of Mississippiparole revocation – Lott pleaded guilty to murder in 1988.   He was paroled in 2000 but then arrested in 2010 and charged with child molestation.  His parole was revoked but the new charges were later nolle prossed.  At that point Lott began to challenge his parole revocation.  He eventually filed a pcr in the county of his original conviction which dismissed the motion without a hearing.  The COA reverses and remands for a hearing.

This Court has held that “before one released on parole may be returned to custody, the State must show that he has violated the terms and conditions of parole.” Elkins v. State, 116 So. 3d 185, 187 (¶8) (Miss. Ct. App. 2013) (quotation omitted). A parolee is entitled to  “a written statement by the fact[-]finders as to the evidence relied on and reasons for revoking parole.” Id. Even if a parolee is acquitted or charges are dismissed, this “does not per se preclude parole revocation predicated upon facts and circumstances giving rise to the criminal charge.” Williams v. Castilla, 585 So. 2d 761, 764 (Miss. 1991). “The [MPB] may not rely on the mere fact that the parolee has been charged with a felony.” Id.

In the Matter of the Estate of Richard L. Gardner, Deceased: Linda Gardner Callington, Andrew Gardner and Larry Ross v. Mae Otha Gardner – will contest – Richard died at the age of 84.  A couple of months before he died, he had had a will made out leaving everything to his wife to whom he had been married for  22 years.  He explained to his lawyer that he had given a lot of money to his children (by a previous marriage) and wanted everything to go to his wife. When Richard died, the will was probated and the estate was found to be insolvent.  Before probate was finished, though,  the laundromat that Richard had owned burned down and the insurance company tendered a check for $237,000.  At that point Richard’s children contested the will claiming that Richard was of unsound mind and unduly influenced by his wife.   After a jury trial, a jury found for the children but  the trial court granted a JNOV and the children appealed.  The COA affirms finding that the children never met their burden of proving that Richard lacked testamentary capacity.

George Lomax v. State of Mississippisexual battery – Lomax was an assistant principle at a high school in Holmes County.  A 16-year-old student claimed that he asked her to come into an unoccupied room and had sex with her. He was convicted of sexual battery. On appeal he argues that it was error to strike for cause a juror, that the state’s strikes violated Batson, his attorney was ineffective in failing to object to various hearsay statements, and that the prosecutor committed misconduct in asking a witness whether Lomax had ever acted inappropriate to her.  The COA affirms finding no error but holding that the ineffectiveness claim may be brought up later in a post conviction petition.

Cathy Doris L. Grantham v. Old Liberty Cemetery Association – land dispute – Old Liberty Cemetery sits of 1.55 acres in Carroll County. It started out some 140 years ago on property belonging to Aaron Lott.  In 1854 Lott deeded 2 acres for the cemetery and a church to Old Liberty Church.  In recent years, the Church was not using the property and gave all but the cemetery property back to the Lotts.  The cemetery property was given to an association dedicated to maintaining the cemetery.  One descendant participated in this process.  Her sister, Grantham, though, insisted that she controlled access to the cemetery and she and her husband proceeded to block access to the property.  Grantham filed suit to have the court declare that the cemetery was entitled to only 1.25 acres and not 1.55 acres. After a trial, the chancellor held that a strip between the cemetery and the public road belonged to Grantham but that the cemetery association had an easement for ingress and egress via adverse possession. Grantham appeals.  The COA affirms.


Michael James and Associated General Contractors of Mississippi, Inc. v. Brian Dedeaux and Constructor Services, Inc. – workers comp. – Michael James was working on a construction project at Keesler Air Force Base when the scissor lift operated by Brian  Dedeaux was struck and severely injured him.  James was an employed by  Aladdin Construction Co.;  Dedeaux was employed by Constructor Services Inc.  CSI had a contract with Aladdin to provide labor for the Keesler project.  James filed a negligence suit against Dedeaux and CSI.  The circuit court found Dedeaux had been “loaned” to Aladdin by CSI thereby  limiting James to workers’ compensation benefits.   James appeals.   The COA affirms.

The evidence here shows that, notwithstanding contractual provisions to the contrary, CSI was a temporary employment agency and Dedeaux was working as a temporary employee of Aladdin at the time of James’s injury. Dedeaux was performing the normal work of Aladdin employees, using Aladdin’s tools, and was under Aladdin’s control and supervision. Dedeaux voluntarily accepted the special employment. Consequently he was a loaned servant of Aladdin at the time he injured James, and James is limited to workers’ 5 compensation benefits as his exclusive remedy. We affirm the circuit court’s grant of summary judgment.

110 South Street, LLC v. Atrium Gentlemans Club, Inc. –  rent – 110 South Street LLC filed a complaint in the Hinds County Chancery Court seeking back rent that Atrium Gentleman’s Club had failed to pay (apparently there was, for a brief shining moment -mid 2014 , – a gentleman’s club at 110 South Street; yeah, I missed it too.) The chancellor found that there was no written lease but that it had been orally agreed that Atrium would rent the property for  $3,500 per month.  The chancellor awarded  $9,800 in back rent and awarded 110 South Street a lien on Atrium’s personal property left om the building.   110 South Street appeals claiming it was entitled to  attorney fees and additional damages. Atrium cross-appeals claiming that the chancellor erred in finding that the rental period commenced on April 1, 2014 and in granting a lien on Atrium’s personal property.  The COA affirms the appeal and the cross-appeal.

Theotis Randle  v. State of Mississippi  sexual battery –  Twenty-year-old “Carol” was raped in March 2010 by her grandmother’s sometime handyman, Theotis Randle.  Randle was convicted of sexual battery.  He denied it but there was DNA evidence connecting him to the crime. On appeal he argues that the evidence was insufficient, that it was error to leave a detective on the witness stand while the attorneys argued about the   admissibility of t he victim’s statement and ineffective assistance.  The COA finds that no reversible error but passes on the ineffective assistance claim to be raised in a pcr petition.

Gary Hunt v. Mississippi Department of Corrections loss of good time – Gary Hunt was incarcerated in the custody of the MDOC when he lost 180 days of good time for having been caught with contraband.  He appealed but the court dismisses the appeal because Hunt has subsequently been paroled.

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