Decisions – Miss.S.Ct. – April 20, 2017

Kenderrick Phillips v. State of Mississippi – per curiam affirmance

Brandon Smith and Kimberly Wolfe Smith v. Milton Martin and Geneva Martin – visitation for grandparents –  After the parents divorced, the father committed suicide. The mother remarried and her new husband adopted her two sons.  They allowed the paternal grandparents visitation but stopped it after it appeared the grandparents were displeased with the adoption and alienating the two boys from their adoptive father. The grandparents sued for visitation which the court granted.  The parents appealed. The COA affirmed.  The Miss.S.Ct. granted cert and affirms as well.  The Court does add that chancellors may decide that grandparents are entitled to no visitation but the Court finds no reason to reverse the chancellor’s findings in this case.

We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in the first place.


Mississippi Commission on Judicial Performance v. Judge Keith Stokes Roberts – judicial performance – Roberts is a justice court judge in Montgomery County.  In November 2014, Rebecca Herring appeared before him in a case where her renter had given her a bad check.  The defendant did not appear.   Judge Roberts continued the case for two weeks but the defendant was not given notice.  On the new date,   Judge Roberts talked to Herring and  suggested that she amend her complaint to $3,500.  She did and Judge Roberts entered a default judgment  of $3,564. He then suggested that she ask for an eviction.  She did and  Judge Roberts ordered an immediate eviction.

The Commission found that Judge Roberts had committed misconduct by: (1) failing in his administrative duties by not directing the Clerk to issue process for the reset hearing date and ensuring that Gastineau received notice of the reset hearing date, (2) failing to give notice to Gastineau that she would face an eviction and a 700 percent increase in the amount of the judgment against her, (3) granting unrequested relief by evicting Gastineau, (4) acting with ignorance or disregard for any applicable rule of law, (5) entering an unsupported judgment in favor of Herring which caused direct harm to Gastineau, and (6) giving legal advice to Herring that directly harmed Gastineau. The Commission recommends to this Court that we order that Judge Roberts be publicly reprimanded, fined $3,000, and taxed with the costs of these proceedings in the amount of $2,381.34.

The Court upholds all of these except the failure to notice the defendant of the continued hearing since she was properly noticed to appear on the original date.  “[W[e find the Commission’s recommended sanctions of a public reprimand, a $3,000 fine, and costs of the proceeding in the amount of $2,381.34 are appropriate.”

Mississippi Commission on Judicial Performance v. Charles L. Vessjudicial performance – Vess is a justice court judge in Adams County.  He had a criminal defendant in front of him who was nervous and kept putting his hands in his pockets despite being warned not to. Vess remarked that this was threatening and that he might have to use a gun on the defendant. “[Judge] further admitted to asking Thomas if he used drugs after remanding the pending case to the file, and upon an affirmative answer from Thomas, [Judge] admitted that he made disparaging remarks about Thomas’s drug use to Thomas’s mother. [Judge] further admitted that he made additional disparaging remarks about Thomas’s mother’s parenting skills and asked other demeaning questions and made other demeaning comments and accusations,”  Vess has been disciplined multiple times so the Court “affirms the recommendation of the Commission and orders that Judge Vess be publicly reprimanded, suspended from office without pay for a period of thirty (30) days, fined in the amount of $1,100, and assessed the costs of this proceeding in the amount of $200.”


The Mississippi Bar v. David E. Hudgens – attorney discipline – Hudgens was disbarred in Alabama for misappropriating from his trust account funds that belonged to his client.  “While Hudgens is certainly cooperative in this proceeding, he offers no reason or argument why the reciprocal discipline should not equal that of the Alabama Supreme Court. Therefore, based on the record before us, and consistent with the Rules of Discipline for the Mississippi Bar and our caselaw, this Court finds that David E. Hudgens shall be disbarred.”

The Court grants cert in Douglas Michael Long, Jr. v. David J. Vitkauskas  (the link is to the COA opinion) which involves  service by registered mail.  Long sued Vitkauskas for alienation of affections.  Vitkauskas moved to dismiss based on insufficient service of process because Vitkauskas was served via MRCP 4(c)(5) – via registered mail – and someone other than himself signed the return receipt.  The circuit court granted the motion and the COA affirms. Restricted delivery requires the person to whom it is addressed to either sign for it or refuse it and there was no reason to find that the person who did sign for the envelop had authority to sign it for Vitkauskas.  Nor was it error for the court to not allow Long additional time for service. “Here, Vitkauskas clearly did not sign the return receipt. And Long could have attempted to serve process again or filed a motion for additional time.”   

Long argues that

At the hearing of the Motion to Dismiss, the trial court, on its own, pointed out that someone named “Mary” appeared to have signed for the restricted delivery. No evidence was ever presented on the identity of “Mary,” since David never raised this issue. No evidence was presented, and it is unknown whether Mary is David’s spouse, employee, his agent authorized to accept such service, or whether David signed as “Mary,” since it is apparent that he received the Complaint and Summons and filed a responsive pleading. The trial court agreed that the Complaint and Summons were properly addressed to David and the envelope was marked “restricted delivery,” but found that the service was insufficient because David did not sign for same. The trial court found that because the issue of sufficiency of service was dispositive of the matter, David’s remaining arguments were moot.

Long petition for cert

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