Decisions – Miss.S.Cty. – March 2, 2017

Laterrence Lenoir  v. State of Mississippi – weight/sufficiency of the evidence – Lenoir was charged with the armed robbery of a Dollar Store in Wesson in 2012.  He wasn’t indicted until three years later when one of the three employees in the store that night identified Lenoir as one of the robbers.  That employee was also charged with the robbery and he  testified in exchange for a plea deal.  On appeal Lenoir challenges the weight and sufficiency of the evidence.  The Court notes that all three employees testified against Lenoir and affirms.

Sam Hales v. State of Mississippi – sexual battery/weight of the evidence – Hales was convicted of  sexual battery and  touching a child for lustful purposes involving a male child who was 14 at the time of Hales’ trial and approximately 11 when the abuse last occurred.  He estimated that there were about 15 instances.  On appeal Hales argues that the verdict was against the weight of the evidence.  The Court affirms.

Marlena Robinson v. Ed Morgan, in His Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue –  business taxes – Robinson was an owner along with her husband of a tire repair shop, D&M Enterprises.  They divorced and the business was administratively dissolved. In 2014, the Dep’t of Revenue assessed Mrs. Robinson with  $69,083.55 for the outstanding sales taxes and $6,686.34 for the outstanding withholding taxes.  She appealed to the Board of Tax Appeals arguing that she had not exercised financial responsibility for the business. She lost and perfected an appeal to the Hinds County Chancery Court where the Dep’t of Revenue asked that her case be dismissed because she failed to post a bond.  The chancellor so ordered and Mrs. Robinson appeals. The Court affirms.

Robinson admits she neither posted a bond nor paid her assessed taxes under protest. This Court has held this requirement must be fulfilled for the chancery court to have appellate jurisdiction. And, while the Legislature has eliminated the bond or payment requirement, the saving clause in House Bill 799 leaves Robinson subject to the pre-amendment version of the statute.

 

Frank Hartley, Jr. v. John D. Watts and Lenita S. Watts – termination of parental rights – Frank had  two children with a woman.  One was born in 2006 and another in 2007.  He spent a couple of years in jail (for having sex with a 14-year-old) and then had only telephone contact with them because of animosity between himself and their mother.  In 2009, the two children were taken into custody by DHS and placed into foster care.  The mother signed away her rights in 2013.  In 2011, the court ordered that DHS try to reunite Hartley with his children.  Between 2011 and 2014 Hartley spent a total of just less than 28 days with his children.  The chancellor terminated Hartley’s parental rights.  On appeal, the Miss.S.Ct. affirms.

TRK, LLC d/b/a Timber Ridge Townhouse Apartments, B&B Management Group, LLC and Tara Burnside v. Vivian Myles, Individually and on Behalf of all Wrongful Death Beneficiaries of Enrique L. Myles, Deceased and/or L.J.W., a Minor, by and through Her Mother and Next Friend, Janna Warnsley – standing to file wrongful death suit –  Enriqu Myles was shot and killed during a robbery at the Timber Ridge Apartments.  His mother filed a wrongful death suit. The defendants requested a stay when a woman  claimed that Enrique was the natural father of her daughter LJW. LJW was determined to be Myles’ daughter.  LJW’s mother then sought to intervene in the wrongful death suit on LJW’s behalf.  Myles’ mother had no problem with it but the defendants insisted that the case had to be dismissed because Myle’s mother lacked standing to bring the suit since Myles had a child.  The trial court refused to dismiss the case and the defendants filed an interlocutory appeal which was granted.  The Miss.S.Ct. affirms. “Because Mississippi’s wrongful-death statute specifically grants the decedent’s mother standing to file the wrongful-death suit, even where a surviving child exists, we affirm.”

Watkins Development, LLC and David Watkins, Sr. v. C. Delbert Hosemann, Jr., in his Official Capacity as Mississippi Secretary of State –  violations of the Mississippi Securities Act – In 2010, Watkins Development was hired to work as the master planner for Meridian.   That same year. Watkins began on a project to renovate the former Belk location at Metrocenter in Jackson. To that end, he formed Retro Metro, a limited liability company.  It purchased the building with an eye toward leasing it to the City of Jackson once renovated. Watkins sought a loan to be obtained by revenue bond proceeds issued by the Miss. Business Finance Corp and recruited the investment banking firm of Duncan Williams to buy the bond.     In April 2012, Watkins defaulted on the payment of the loan.  The  Secretary of State issued a Notice of Intent to Impose Administrative Penalty and Order Restitution and Disgorgement of Profit to Watkins. After a hearing, Watkins was found to have committed four  violations of the Mississippi Securities Act. Watkins appealed to the chancery court which affirmed three violations of the Mississippi Securities Act but reversed on one of them.  Watkins appeals.   The COA reinstates the SOS’s final order. The Miss.S.Ct. granted cert. and reverses “the Court of Appeals in part because the Secretary failed to cross-appeal the chancellor’s decision to vacate Count I. That said, we affirm, as did the chancellor and Court of Appeals, the Secretary’s findings on the other three counts.”

Roberts Company, Inc. f/k/a R & M Foods, Inc. v. Marcus Moore – felon juror – In 1989, three-year-old Marcus Moore slipped and fell in a grocery store owned by  Roberts Company, Inc. When  he reached the age of majority, Moore filed suit against RCI, claiming that RCI was negligent in allowing the floor to be slick and that he suffered permanent brain injury. After a ten day trial, a jury found in favor of the store.   Although all twelve jurors found that RCI had been negligent, nine jurors found that RCI’s negligence was not a proximate cause of Moore’s injuries. The trial judge entered a final judgment on the jury’s verdict.  Moore filed a motion for new trial on t he grounds that the jury foreperson was a convicted felon.  RCI responded that  Section 13-5-1 states  that a juror’s lack of qualification “shall not . . . vitiate an indictment or verdict.  The trial court granted a new trial.  RCI filed an interlocutory appeal which the Court granted.  The Miss.S.Ct. reverses and renders.

While the Fleming Court did mandate a new trial where a juror was a convicted felon, it addressed the defendant’s constitutional right to a fair and impartial jury under the facts of that case. It did not analyze section 13-5-1’s “vitiate” language and relied on precedent that was irrelevant to the issue at hand. To the extent that Fleming stands for the proposition that a violation of the first section of Section 13-5-1 requires an automatic reversal or invokes a presumption of prejudice, it is hereby overruled. Further, the Brown 9 Court reached its result after engaging in statutory analysis that is inapplicable here. As such, this Court reverses the trial judge and reinstates the jury verdict.

 

Cellular South, Inc. v. BellSouth Telecommunications, LLC, f/k/a BellSouth Telecommunications, Inc. and Successor by Merger to Bellsouth MNS, Inc. – public records – The State of Mississippi has a multi-year contract with BellSouth to purchase telecommunications services. In 2015  Cellular South filed a public records request for the contracts between BellSouth and the State.  BellSouth obtained a protective order in Hinds Chancery Court for those records and Cellular South appealed arguing that the records are not exempt  pursuant to MCA  Section 25-1- 100(5) which states that  “Contracts for personal and professional services that are awarded or executed by any state agency, including, but not limited to, the Department of Information Technology Services and the Department of Transportation, shall not be exempt from the Mississippi Public Records Act of 1983.”  Cellular South appealed. The Miss.S.Ct. reverses and remands stating that there was insufficient information to determine t he nature of teh contract at issue but if “the contract is indeed one for ‘personal and professional services,’ then by the plain language of Section 25-1-100(5) it would not be exempt from the Public Records Act.”

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The Court affirms City of Pearl, Mississippi v. Homewood Company, L.L.C and Floyd B. Austin, Marcus B. Austin, AA Food Services, Inc., Austin & Associates Services, Inc., Austin & Associates, Inc., M & M Contract Management, Inc., Meridian Food Services, LLC, Big A Auto Sales, Inc., Floyd Austin Properties, LLC, Austin Irrevocable Trust, Floyd B. Austin d/b/a Floyd B. Austin Food Service, PKA Services, Inc., Floyd B. Austin f/k/a PKA Services, Inc., Floyd B. Austin d/b/a Austin Farms v. Pamela K. Austin but issues no opinions.

The Court grants an interloc. in  Lakeland Nursing and Rehabilitation, LLC, Brittany Spann, LPN, Mary McGowan, LPN and Barbara Scott, LPN v. Patsy Wood, Individually, as Administratrix of The Estate of Patricia Bridgeman Peoples, Deceased, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples; Sandra Kay Madison, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples; and Samuel Peoples, Natural Son and Wrongful Death Beneficiary of Patricia Bridgeman Peoples involving the notice required before filing a med mal. suit.  Patricia Peoples was a resident a resident at Lakeland Nursing and Rehabilitation Center. In September  2011, Ms. Peoples fell.  Plaintiffs filed suit alleging that the fall was due to negligence and that the fall ultimately led to her death.  Lakeland moved to dismiss because while notice letters were sent to a lot of people, Lakeland claims that the only letter it got was a request for medical records. The plaintiff argued that the letter complied with the requirements.  Barbara Scott, an employee of Lakeland, also moved to dismiss,  The trial court denied the motions and they filed an interloc. which the Miss.S.Ct. granted.

lakeland-nursing-interloc

lakeland-notice-letter

 

The Court grants a writ of cert in Dr. Hosan M. Azomani v. State of Mississippi  – (link to COA opinion) – medicaid fraud –  Pediatrician Dr. Azomani was convicted of two counts of Medicaid fraud and sentenced to  two concurrent terms of three years.   On two separate days (one in October 2010, and another in January 2011,  he billed for treating 56 children and then 69 children.  He was paid $14,715.66 for the two days.   Experts who reviewed Dr. Azomani’s records for the MFCU unanimously concluded that none of the children Dr. Azomani treated during those two days should have been billed under code 99215. On appeal he argues that (1) he was not tried in the proper venue; (2) the statute of limitations had expired; (3) the jury was improperly instructed; (4) there was insufficient evidence to convict him; (5) he received ineffective assistance of counsel; and (6) cumulative error.  As for venue, Azomani argues that the medicaid fraud statute allows for venue in Hinds or the county where the defendant resides.  Azomani was tried in Washington County – the clinic where the violations occurred and not in Madison where Azomani resides.  Since Azomani is not raising a venue claim pursuant to the Constitution, his failure to object at trial waives the issue.  Azomani argies that the SOL is 2 years pursuant to MCA Sect. 99-1-5.  However that statute states that  that “[t]he passage of time shall never bar prosecution against any person for the offense[] of . . . obtaining money or property under false pretenses or by fraud . . . .”  The COA affirms.

azomani-cert

 

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