Decisions – COA – March 21, 2017

Shawn Richard O’Hara v. City of Hattiesburg, Mississippi Tort Claims Act – O’Hara was walking across South 28th Avenue in Hattiesburg when the street  caved in.   Almost a year later,  he filed suit against the City of Hattiesburg in the Forrest County Circuit Court.   The circuit court dismissed O’Hara’s complaint without prejudice for insufficient service of process and failure to provide proper pre-suit notice under the  Tort Claims Act.  On appeal, the COA affirms finding that while O’Hara managed to serve process correctly, the case must still be dismissed for failure to provide pre-suit notice as required by law.

Delois King v. Willie B. Kingpremises liability – Delois King was on her mother’s property either loading an abandoned car onto a trailer or just  removing abandoned cars.  She got on a tractor to assist her.  It fell over injuring her.  Delois sued her mother on a theory of premises liability alleging  that Willie provided her with an unsafe tractor and failed to warn her of dangerous conditions on the premises. The circuit court granted summary judgment for Willie because Delois failed to present any evidence that Willie’s property was unsafe or that Willie breached any duty to warn or duty of care.   The COA affirms.

Kappi Saget Jeffers v. Korri Saget –  final judgment rule – Rae Saget died in January 2014, survived by two daughters, Korri Jeffers and Korri Saget. Prior to her death, Rae had executed three wills. in the most recent one executed in 2012, she gave all her property to Saget, except for one diamond ring, which she bequeathed to Jeffers. There was also an investment  accounts with Morgan Stanley; Rae  made  Saget the sole beneficiary of the accounts. After Rae’s death, Jeffers argued that the last will was  a product of undue influence and should be declared void.  A jury trial was held as to the will and the jury deadlocked. The chancellor entered a “Final Judgment” in August  2015, denying Jeffers’s petition for the recovery/collection of assets and the counterclaim to set aside the conveyance of personal property and for recovery of assets. The order noted that the issue of the will’s validity was still pending. Jeffers appealed.  The COA dismisses the appeal. “Because the judgment was not certified pursuant to Rule 54(b), we find that the chancery court judgment was not a final, appealable judgment, and this Court lacks jurisdiction to consider Jeffers’s appeal.”

Janice Loden Sullivan v. James Wayne Sullivan – necessity of findings in dividing marital assets – Janice and Wayne separated in 2014 after 16 years of marriage.  They agreed to an ID divorce.  Wayne was retired as a dean at Itawamba Community College and was making $8,208.22 per month in state retirement and $6,900 doing contract work.   Janice was a registered nurse but quit working in 2012 due to health issues. Janice received $1,333 per month from a trust established by her deceased mother. And there was evidence that Janice’s father had regularly been giving Janice as much as $29,000 a year.  They owned a home worth  $220,000 and a savings account  containing approximately $341,329. Apparently the chancellor made an oral ruling over the phone.  Then there was a judgment of divorce awarding  the marital home to Janice, dividing  the savings account, dividing  the marital assets, and awarding Janice $1,360 per month from Wayne’s state retirement “for up to twelve years effective September 1, 2015.”  Janice appealed arguing the chancellor failed to make Ferguson findings.  While the chancellor need not make “an explicit factor-by-factor analysis”,  “the record here simply does not show that the chancellor adequately considered or applied the factors. Thus, we must reverse and remand for a proper application of the Ferguson factors.”

Mary E. Stevens v. Ginger Grissom replevin – Mary filed a replevin action against her former daughter in law seeking to recover some jewelry and a figurine.   Mary contended she gave the items to her son Michael for safekeeping. Ginger contended Mary gave her the rings and the cameo as a Christmas present early in the couple’s marriage.  During the divorce  Michael and Mary removed these items and the  chancellor  found Michael in contempt for  removing them.  The county court found that Mary failed to adequately prove the value of the items and failed to prove Ginger had wrongfully possessed the items. On appeal, the circuit court affirmed as does the COA.

 

Dennis Thompson  v. State of Mississippi –  rebuttal witness/reasonable doubt instruction –  In May 2010, a large number of people had gathered at an intersection in Starkville.  There was a physical altercation  and then shots were fired.  One person died and three were injured.  Thompson was found guilty of depraved heart murder and three counts of aggravated assault. On appeal Thompson takes issue with the state’s being allowed to call a rebuttal witness and the jury instructions.  At trial various people testified regarding the shooting. Some saw Thompson shoot; others didn’t.  On rebuttal, the prosecution called a police officer who introduced a video interview of Thompson in which he admitted to firing a gun about six times. The prosecution  explained that it did not introduce the video in its  case-in-chief because it considered it a self-serving claim of self-defense but once one witness suggested Thompson did not have a gun and two others , and Harris and Zuber suggested that there were other shooters, the video was proper rebuttal evidence.  The COA agrees. Thompson started out contending this was a self defense case and, thus, the prosecution  should have been able to introduce the video once Thompson started adducing evidence that Thompson was not the shooter.  Thompson also complains that the trial court refused some  of his instructions.  The first was an attempt to define reasonable doubt; the court has repeatedly held “that a definition of reasonable doubt is not a proper instruction for the jury.”    Refusal to give another instruction involving reasonable doubt was also not error.

Paul Robinson v. Mississippi Department of Corrections – inmate grievances – Inmate  Robinson filed  an appeal of decisions by MDOC to  withdraw money from his account to pay for his legal mail. On appeal, the COA finds that the court did not err in dismissing Robinson’s frivolous claims.

Michael Stevens v. Derrick Wade, Personally, and as an Employee of Wesley House Community Center, Inc., Andy Hodges, Personally, and as an Employee of Wesley House Community Center, Inc., Ginger Grissom Stevens, Personally, and as Director of Wesley House Community Center, Inc., Wesley House Community Center, Inc., National Board of Global Ministries of the United Methodist Church and Board of Directors of Wesley House Community Center, Inc. –  dismissal as sanction for failure to cooperate in discovery – Stevens had been charged by Wade and Stevens for assault.  Stevens was found guilty in city court but the case was dismissed on appeal.  Stevens them filed a malicious prosecution case against Wade and Stevens and Wesley House.  The case was dismissed when Steven failed to respond to discovery.  His lawyer filed a motion for rehearing claiming that he never got the discovery because he had moved his  office and he had been hospitalized three times.  The trial court was unpersuaded.  Stevens appeals and the COA affirms.

Brooks Monaghan, M.D. v. Robert Autry Jr. –  attorneys fees incurred where wrong person served with complaint – Dr. Monaghan filed suit against Robert Autry for payment for medical fees.  Apparently her served the wrong Robert Autry who was only dismissed after moving to dismiss; Autry’s  lawyer’s previous appeals to Dr. Monaghan that he had served the wrong person were unavailing.  Autry asked for attorneys fees for having to defend himself  in the amount of $810 which the court awarded against Monaghan and his lawyer jointly and severally. Monaghan appeals and the COA affirms.

Pro se PCR appeals affirmed:

Davarrius Brown v. State of Mississippi.

Jeffery Kleckner  v. State of Mississippi

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