Decisions – COA – April 11, 2017

Joshua Howard  v. State of Mississippipardon/expungement –   Howard pleaded guilty to statutory rape  in 2009.  He was sentenced to a term of twenty years, with seventeen years suspended. In January  2014, the Governor granted him a full pardon.  He then filed a  motion in the Circuit Court of Rankin County asking that all records be expunged relating to the conviction for which he received the pardon. The court denied his motion and Howard appeals.  The COA affirms based on the Miss.S.Ct.’s decision in  Polk v. State, 150 So. 3d 967 (Miss. 2014). 

William Ray Parks  v. State of Mississippi lesser included/coroner testifying to cause of death – Parks was charged with murder in the death of a man, Joshua Tarver, who had worked for him in his auto repair business in a rural area of Copiah County. While Parks was out of town,  Tarver has stolen a bunch of tools from Parks.  One day Tarver  got his buddies together to drive the tools back.  He did not let Parks know that he was coming.  The truck  that Tarver and his friends were driving got stuck in the mud.  When Parks went out to investigate the noise, he could see a truck with his tool on the back.  He shot at the tires to keep it from moving.  He then claims he saw Tarver coming towards him and warned him to stop but Tarver struggled for the gun and got shot.  Parks was convicted of manslaughter.  On appeal he argues that it was error for the court to give a heat of passion manslaughter instruction because there was no evidence of heat of passion, that the court erred in letting a deputy coroner who was not a doctor testify as to cause of death and that the conviction was against the weight and sufficiency of the evidence. The COA affirms.

In the Interest of N.M., a Minor: S.M. and M.M. v. Mississippi Department of Human Services, Marion County, Mississippi –  youth court jurisdiction/child in need of special care – In September 2014, M.M. gave birth to a child N.M. by her husband S.M. A month before that, the couple’s seven other children had been adjudicated as neglected based on unsafe living conditions and placed into three foster homes.  Two days after the child’s birth, it was placed in DHS custody based on a finding that it was a Child in Need of Special Care.  The law defines a  child in need of special care as a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.  In May 2015, the parents asked that S.M. be returned to them on the grounds that S.M. was not a child in need of special care. The COA finds merit in this argument.  The fact that a child is in need of special care does not, in and of itself, give the youth court jurisdiction over a child.   The youth court must first find that the child is either “a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child.”

We find no Mississippi case addressing whether the youth court may exercise jurisdiction over a newborn on the basis that its siblings have been recently adjudicated as “neglected,” but a few jurisdictions have determined that a court may have jurisdiction over a newborn under a theory of “anticipatory neglect,” when another related child has been found to be neglected.

Here DHS filed the wrong petition.  Thus, the case is reversed and  remanded to allow the DHS to file a proper petition within ten days, should it deem one is justified.

Paige Electric Company v. Davis & Feder, P.A. –challenge to arbitration award – After Hurricane Katrina, Paige Electric contracted with Southern Construction,  a Florida corporation, to provide electrical contracting on all of Southern Constructionʼs projects.  When Southern Construction failed to pay Paige Electric  $271,364.22 on its last project, Jerry Paige retained Davis & Feder to handle his claims.  David Brisolara of Davis & Feder filed a collection suit against Southern Construction and sought to place a lien  against the property owner Hancock Hotels. A default judgment was obtained on the collection suit but by that time  Southern Construction had no assets. Paige maintains that Brisolara did not actively prosecute the lien claim and let the SOL lapse while telling Paige that he was pursuing the lien. Paige Electric filed suit against Davis & Feder in January  2014. The case ended up in arbitration and the arbitrator ultimately ruled against Paige Electric.  Paige Electric challenged the arbitration award and when it lost in circuit court, appealed.  The COA affirms.

Robert A. Maxwell  v. State of Mississippi –  timeliness of amendment to charge habitual/retroactivity – Maxwell was charged with murder and convicted of manslaughter in 2008.  Two years later he filed a pro se notice of appeal which was dismissed for being filed out of time.  He then filed a petition in the Mississippi Supreme Court for permission to proceed in the trial court.  The court dismissed it without prejudice to file in the trial court. The trial court granted Maxwell an out of time appeal. In that appeal he argues that the circuit court erred in allowing the State to amend his indictment after conviction to charge him as a habitual offender. In Gowdy v. State, 56 So. 3d 540 (Miss. 2010), the Mississippi Supreme Court held that this was error.  The COA finds that Gowdy was decided after Maxwell was convicted and it is not retroactive and, thus, affirms Maxwell’s conviction.

Tremayne Whitlock  v. Brian Ladner, Latisha Brooks and Larry Myers – appeal of prison  rules violation –  Whitlock is serving a life sentence.  In June 2015, a correctional officer claimed he say Whitlock hide a package in the kitchen.  The package contained five cell phones, five cell-phone chargers, and five pounds of tobacco. He was charged with possession of major contraband and  placed in administrative segregation pending an investigation. In July he was given a hearing, found guilty, and  reclassified to the cellular-telephone-management housing unit and lost all privileges for ninety days.  Whitlock appealed it administratively and lost.  He then filed suit in Rankin County Circuit Court.  The circuit court fond that MDOC’s decision was supported by substantial evidence.  Whitlock appealed. The COA affirms.

Willie Duck v. State of Mississippi – sufficiency of evidence for habitual/etc. – Willie Duck was convicted  of possession of more than two grams but less than ten grams of methamphetamine after a controlled buy.  He was sentenced as an habitual offender. On appeal Duck argues that one of his priors was not sufficient.  Duck had been convicted in  Louisiana in 2000  for possession of cocaine and had been sentenced to seventeen months. The State submitted a document titled “Docket Master, Orleans Parish Criminal District Court,” that listed Duck’s conviction and sentence instead of the usual sentencing order because Louisiana has to do everything differently and give everything an archaic name.  The COA finds no error.  Duck also argues that he should have been granted a new trial because during a portion of the State’s opening argument, one of the State’s witnesses,  Lieutenant Pirkey, was in the courtroom in violation of the sequestration rule. He also raises sufficiency of the evidence and ineffective assistance among other issues. The COA affirms.

In Re: The Estate of Norair Avakian, Deceased: Burnette Avakian, Executrix v. Wilmington Trust National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns Asset Backed Securities Trust 2007-2, Asset-Backed Certificates, Series 2007-2 and JP Morgan Chase Bank, N.A. tolling of SOL in suit over promissory note –  Norair Avakian passed away in July 2010.  His wife opened an estate.  J.P. Morgan Chase Bank filed a statement of claim on behalf of a lender based upon a promissory note signed only by Mr. Avakian (a note now held by  Wilmington Trust).  Mrs. Avakian contested the claim as  barred by the statute of limitations. The chancery court ruled for Wilmington Trust.

In 2002, the Avakians purchased a house (Shadowlawn) in Columbus with a loan  from Southstar Financing.  In November 2004, Mr. Avakian executed a deed that conveyed title to the property to Mrs. Avakian alone.  In March  2006, Mr. Avakian refinanced the mortgage with EquiFirst Corporation and took out the new loan in his name only.  Because the house was homestead property, EquiFirst required both Mrs. Avakian and Mr. Avakian to execute a deed of trust. Because Mr. Avakian was out of state at the time of closing.  the lender forwarded one set of loan documents to Mr. Avakian for him to execute and return and had Mrs. Avakian execute a second set the following day.  This resulted in two deeds of trust. Mr. Avakian’s note was sold to Citibank with J.P. Morgan servicing the note. Mr. Avakian fdell behind on the note and then died.

In early 2012, Citibank informed Mrs. Avakian that it intended to foreclose on the house. Mrs. Avakian filed suit in  Chancery Court seeking to enjoin the foreclosure by contending that the two deeds of trust on the home were both void pursuant to Miss. Code Ann. § 89-1-29 because neither contained the signatures of both Mrs. Avakian and Mr. Avakian.  The lawsuit was removed to the United States District Court for the Northern District of Mississippi. Following a trial in February 2014, the United Stated District Court entered a Final Judgment in favor of Mrs. Avakian and held that the deeds of trust on the house were unenforceable. On  appeal, the Fifth Circuit reversed the United Stated District Court, making an Erie-guess holding that the Mississippi Supreme Court would likely construe the two deeds of trust as together creating a valid deed of trust and remanded.  Meanwhile,  J. P. Morgan filed a Statement of Claim based upon Mr. Avakian’s debt arising from the promissory note of $815,905.06.  After the Fifth Circuit ruled, the chancellor  held that the running of the statute of limitation  had been tolled.

In  February 23, 2015, Wilmington Trust filed suit in the Lowndes County Chancery Court against Mrs. Avakian  and the Estate of Norair Avakian seeking to foreclose on the home and to recover against the Estate on the promissory note. On August 4, 2015, the United States District Court entered a Final Judgment in favor of Wilmington Trust (which was substituted for Citibank).

On September 8, 2015, the chancery court issued its Opinion and Judgment. The chancery court concluded that the four-year statute-of-limitations period expired on October 26, 2014.  It concluded, however, that the Fifth Circuit’s order prohibiting the Trustee from foreclosing had tolled the running of the limitations period for at least the period between May 12, 2014 and August 4, 2015.  As a result, the Trustee’s filing of the State Proceeding against the Estate on February 23, 2015 was timely. Moreover,  Ms. Avakian had failed to mail the statutorily required notice to the Trustee, who was unquestionably a reasonably ascertainable creditor.  Therefore, the statement of claim was timely.

Aleshia Dietz v. South Mississippi Regional Center and Mississippi State Agencies Workers’ Compensation Trust – workers comp./whether employer estopped from invoking SOL  –  Dietz worked as a nurse for South Mississippi Regional Center.  In  January  2012, she was involved in a car accident while running an errand for work.  Her doctor recommended a chiropractor for her to see and she continued to work in  a “modified, light duty position.”  Because she was still working, her employer did not pay benefits but did pay for her medical care. After two years’ of treatment, the employer announced it would no longer pay because the two year SOL had expired.  Dietz got a lawyer  and filed a petition to controvert.  The AJ found that the SOL had not run because the employer’s  “voluntary payment of salary in lieu of compensation or its payment of medical benefits within two years after the date of injury waived the [necessity for] filing of a formal claim within that period.” The AJ also held that the carrier had assured Dietz that it would take care of everything.  The full Commission reversed and Dietz appealed.  The COA reverses finding that the Commission failed to examine all of the evidence in finding that the employer was not equitably estopped from invoking the SOL.  The COA finds that Dietz’ claim is not barred by the COA and remands for further proceedings.


Pro Se PCR appeals affirmed:

Michael Drankus  v. State of Mississippi

Mark Atkinson v. State of Mississippi



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