Decisions – COA – April 18, 2017

Averald D. Burnett, Jr. v. State of Mississippi –  character evidence/various – Burnett had been a  police officer in Lamar County.  When his stepdaughter accused him of rape, Burnett was housed in the Pearl River County jail.   While there he allegedly offered a fellow inmate,  Russell Steele, to bail him out and pay him if he  killed Burnett’s estranged wife and stepdaughter.  Burnett drew him a map to his house and  gave him information to identify and find  his wife and stepdaughter.  He then had his girlfriend bail Steele out and give him some money. At trial, he did not testify but his theory of  defense was that he had bonded out Steele under pressure from a jailhouse gang as part of a scheme to get green dot cards for contraband cell phones.  He was convicted of attempted capital murder. On appeal he complains about various arguments made by the state in closing including that  Burnett had a wife and two girlfriends because there was no evidence to support that he had a second girlfriend.  The COA finds that his wife testified about the two girlfriends.  He claims it was error for the trial court to admonish his girlfriend during her testimony “I understand you are on cross, I understand you have wide latitude to lead the witness. But you can’t testify.”  The COA is unimpressed.  He also objects to the girlfriend’s testimony that reflected poorly on Burnett.  For example, she testified to her efforts to get him a cell phone in prison.  While admitting that she had cared for Burnett, she testified that he was a liar and a manipulator.  “[W]hile we agree with Burnett that the objection should have been sustained based on the particular phrasing of the testimony, that Burnett’s ex-girlfriend held a low opinion of him following the events at issue would have come as no surprise to the jury.”  He also complains about spoilation and the sentencing hearing.  The COA affirms.

Great Southern Excavators, Inc., Great Southern Shell, Inc., Christopher E. Lovelace and Edward C. Lovelace, Jr. v. TEC Partners, LLP and Jeffrey A. Turnipseed – accounting malpractice – In 2001, Great Southern Excavators Inc. and Great Southern Shell Inc.  hired Jeffrey Turnipseed of TEC Partners LLP to provide accounting and tax services.  A few years later, Great Southern discovered its office manager was embezzling funds.   In the meantime, the IRS alerted the company twice that the payroll taxes had not been deposited. Great Southern  sued the accountants who denied that their agreement contained any responsibility to monitor the federal payroll taxes.   The trial court granted summary judgment for the accounting firm.  On appeal the COA reverses finding that the expert opinion provided by  Great Southern raised a material issue of fact precluding summary judgment.

We also find that Ingram’s testimony properly stated TEC had a duty to comply with professional accounting standards and breached that duty when it failed to comply with those standards. If, in fact, Turnipseed appeared weekly and reviewed the payroll records, then, according to Ingram, he should have recognized and investigated 8 evidence of possible embezzlement. If he did not review the records weekly, and he had agreed to do so, then that failure constitutes malpractice and breach of a contract by a professional.

Knights Marine & Industrial Services, Inc. v. Gulfstream Enterprises, Inc. – open account/garnishment/supersedeas – After the Deep Water Horizon BP oil spill in 2010, one of the companies hired for the clean-up hired Knights Marine & Industrial Services Inc. which, in turn,  hired Gulfstream to supply a vessel and crew.  Eventually Gulfstream sued Knights in county court for  $143,881.01 it was owed.  The court entered judgment for  $143,881.01 under the open-account statute. Pre-judgment interest and attorney’s fees were also awarded to Gulfstream, but punitive damages were denied.  Both appealed to the circuit court which affirmed.  Knights appealed to the Miss.S.Ct and Gulfstream cross-appealed. Knights argues that at some points Gulfstrean provided no services and there was no standby rate for the vessel.  The COA refuses to reverse the county court’s finding in this issue and finds no merit in Knight’s argument that a suit on an open account requires that there be work performed.  The county court awarded Gulfstream $10,122.92 in pre-judgment interest, at eight percent, to run from the date the complaint was filed.  It found that it could not award from the date of the breach because the damages were not liquidated. The COA disagrees. “The invoices and financial documents entered into evidence all indicate Knights’s liability as $143,881.01– the disputed issue is whether the amount was owed at all.”  It reverses on this issue but affirms the finding that punitive damages were not allowed.  It also finds no error where the court ordered that  Knights’s funds, successfully garnished by Gulfstream, to be deposited in the court registry in lieu of Knights’s posting a supersedeas bond, and also in later denying the funds’ disbursement to Gulfstream.

L.M. Birge v. State of Mississippi –   manslaughter – Callie Ware and her sister Tikea were at Callie’s house.  Birge’s daughter Rose stopped by.  Callie and Rose started fighting.  They ended up in the street.  Birge showed up and shot Callie with a shotgun and she died. Birge was indicted for first degree murder and convicted of manslaughter.  On appeal he argues the evidence was insufficient and that the verdict was against the weight of the evidence.  The COA affirms.

Suresa Young Todd v. Derrium Todd – modification of custody – Derrium and Suresa  married in 2008, had a daughter, and separated in late 2009.  They filed for divorce in 2012 and agreed to share joint physical and legal custody of their daughter. The agreement, though,  did not include a custody schedule. In  2014, Derrium filed to modify custody seeking full custody.  He claimed that  Suresa had been living with her mother and  was not caring for their daughter.  Suresa counterclaimed for custody. After  a hearing, the court conducted an Albright analysis,  awarded Derrium physical custody,  awarded Suresa liberal visitation, and sua sponte ordered Suresa to pay child support. On appeal Suresa argues that the court had to first find a material change in circumstances in order to modify custody.  The trial court explained that it did not have to because “[n]either party was granted permanent physical custody in the divorce decree and said decree remained silent as to where the child would reside.” The COA reverses finding that the agreement to share custody was a prior custody modification that could be modified only if there was a material change in circumstances.

If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim, Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).

Derrick Dortch v. State of Mississippinotice of firearm enhancement –  Dortch  pleaded guilty in 2014 to shooting into an occupied dwelling and to aggravated assault. His sentences were enhanced by a firearm enhancement.   He then filed a pcr arguing that the court erred in applying the enhancement.  He argues he got no notice of it. The circuit court denied relief and he appealed. The COA finds that during the plea colloquy the court explained that he had the option of tacking on five years to each sentence for the firearm enhancement and asked Dortch if he still wished to go forward. His attorney even argued that the enhancement should not apply because it was not in the indictment and the court, again, asked if Dortch wanted to plead.  He replied that he did.  The COA affirms. “No case law requires that an indictment include an actual reference to the sentence enhancement; rather, federal and Mississippi jurisprudence only require that an indictment include the facts involved in such an applicable sentence enhancement, such that those facts are required to be proven beyond a reasonable doubt.”

Robert Hammons, Jr. v. C. Wade Navarre, II, Individually and d/b/a Navarre Fabrication, Inc., Navarre Fabrication, Inc., Velcon Filters, LLC, Knappco Corporation and Wilden Pump and Engineering, LLC –  fictitious parties –  Robert Hammons Jr. was severely injured in the crash of a helicopter he was piloting.  He filed suit against the manufacturer of the fuel used in the helicopter claiming that it  was defective and contaminated.  His complaint named fictitious parties A-P but did not specify anything about them.  After the SOL expired, he attempted to amend his complaint to substitute defendants who  manufactured or fabricated the fuel truck used to refuel the helicopter and the fuel tank, fuel pump, and fuel filter on the truck.  He alleged, for the first time, that the helicopter’s fuel was contaminated as a result of defects in the truck and/or its  parts. These defendants moved for summary judgment on the grounds the SOL had run. The trial court agreed. The COA affirms finding that it is well settled that you can’t substitute fictitious parties for real defendants where the complaint says nothing about what the entities supposedly did or the basis of their alleged liability to the plaintiff.

Mississippi Department of Wildlife, Fisheries, and Parks v. Candace Webb, Thomas Harper, and Kathleen D. Webbboating accident/Tort Claims Act  – On August 22, 2009, MDWFP officers observed  a boater speeding on the Tchoutacabouffa River. They navigated their patrol boats into the river to investigate and stop the boater. The boater came to an initial stop in the middle of the river in an area that was heavily traveled and used by others. Law enforcement instructed the boater to follow them down river into the nearest straightaway which was a safer area to stop and question the boater. The driver agreed and followed at first but then  turned and fled whereupon it collided with a vessel operated by Christopher Webb, killing Webb and injuring his  passenger Shane Webb. The boater, Donald C. Bernius,  pled guilty to boating under the influence causing death and injury, and was sentenced to twenty years. The plaintiffs sued MDWFP.  After a bench trial, the court held for  the plaintiffs finding that the MDWFP officers acted in reckless disregard for the safety of others when the officers told a boater to move to a safer area after they stopped him, but the suspect suddenly fled and caused a fatal boat collision. The circuit court awarded   awarded $466,666.77 to Candace Webb and $33,333.33 to Kathleen Webb.  The MDWFP  appeals.  The COA reverses and renders.

Therefore, after reviewing the record, and keeping in mind our standard of review, we find the circuit court erroneously applied the legal standard for reckless disregard to this case. See Thomas, 882 So. 2d at 796 (¶20). The evidence failed to show that the officers’ conduct “evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” See Bradley, 929 So. 2d at 380 (¶12). As a result, we find the circuit court’s judgment lacks credible and substantial evidentiary support. We therefore reverse the circuit court and render judgment in favor of the MDWFP.

Aaron Lyons v. State of Mississippispousal privilege, etc – Lyons was convicted of manslaughter and armed robbery in the death of John Deere outside the convenience store he owned in Brookhaven.  Later there was a small roadside fire in Summit.  A small metal cash box involved in t he fire was identified as belonging to Deere.  Law enforcement was able to get DNA off a pair of jeans in the file. It matched the DNA of Lyons.  Lyons raises various issues on appeal including allowing his former common law wife to testify in violation of the spousal privilege.  The marriage was in Texas so the question was whether there was a common law marriage as recognized in Texas law (Mississippi does not recognize them). “We find that there was evidence that Lyons and Ewell failed to consistently hold themselves out as husband and wife.”  Therefore, the trial court was not wrong to allow her to testify. The COA affirms.

Anthony Murry v. State of Mississippi – juror misconduct – Murry was tried and convicted in Hinds County for aggravated assault. On appeal he argues, among other things, that the trial court erred in not granting a new trial due to juror misconduct.  After the trial, Murry moved for a new trial on the grounds that during the  trial,  one of the jurors, Dennis Harris, initiated improper contact with Murry’s fiancée, Laronda Brooks, and tried to begin a relationship with Brooks. “To support his claims, Murry attached to his motion Brooks’s affidavit, copies of pictures that Harris sent Brooks, and copies of text messages between Harris and Brooks.”  The trial court denied the motion  finding that “the eleven other jurors had not been exposed to the improper contact and that they all found Murry  guilty.”  Moreover both Brooks and Murry agreed they had not discussed the trial although Brooks maintained that Murry stated he thought Murry was innocent.  The COA reverses and remands for a new trial finding that this was not the correct standard. “The undisputed testimony reflects that an improper romantic communication occurred between Harris and Brooks that displayed a motive for Harris to alter the verdict in this case.”  “[Based upon a review of the applicable standard set forth in Mississippi caselaw, the record reflects it is reasonably possible that the communication between Brooks and Harris altered the verdict in this case.”

Pro se PCR appeals affirmed:

Dung Thank Tran  v. State of Mississippi

Aaron L. Patane  v. State of Mississippi

2 thoughts on “Decisions – COA – April 18, 2017

  1. Jane,
    The COA did not affirm the Webb v. MDWFP matter. The COA reversed and rendered the trial court’s decision.

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