Decisions – COA – April 25, 2017

Earl Ross and Maxcine Ross v. Shellie R. Stewart counterclaim in replevin –  Shellie R. Stewart leased a mobile home to the Ross’s.  At some point the Rosses contend they entered into an oral agreement with Stewart to purchase the mobile home for $42,000 payable in monthly installments of $600 per month, without interest, provided full payment was received within one year and a for $52,000 if not paid within the year.   Stewart filed a complaint for replevin against Earl Ross. Earl filed  a counterclaim alleging breach of fiduciary duties, breach of contract, etc.   The circuit court dismissed the counterclaim without prejudice  holding that damages must be sought after judgment on the issue of possession and not by way of a counterclaim.  However, the court did allow the Rosses to present their defense of breach of contract.  Finding no binding agreement, the court granted the replevin. On appeal, the COA finds that it was error to dismiss the counterclaim but because the trial court heard the essence of the defense, it was not reversible error.  Determining possession required a determination of  whether the Rosses were entitled to possession because Stewart breached his contract to sell.  Pre the adoption of the Miss. Rules of Civil Proc., courts could not hear a counterclaim in a replevin case.  But now  MRCP 13 allows the court to consider compulsory and permissive counterclaims.  “Accordingly, in future and similar actions, we encourage trial courts to hear viable counterclaims accompanied with a replevin action to ensure judicial economy.”

Jimi Mosely, Individually and as a Personal Representative of the Estate and Heirs-at-Law and/or Wrongful Death Beneficiaries of Gerboria Mayfield, Deceased v. Baptist Memorial Hospital-Golden Triangle, Inc., Brandy Adams-Hall, R.N. and Jennifer Gilliam, R.N. – medical malpractice –  Gerboria Mayfrield delivered twins via a c-section in August  2011.  She died a few days later from a  perforated gastric ulcer.  Her estate filed suit against the treating physician and the hospital.  The hospital moved to dismiss because the complaint failed to specify causation.  The motion was granted. Some three months later, she filed to amend her complaint to add the hospital.  The hospital opposed the motion on the grounds the SOL had run.  Two months later the estate filed a new complaint against the hospital and two nurses.  The esttate moved to consolidate the two cases which was denied. The estate  conceded that the second action should be dismissed  due to lack of presuit notice but argued that the dismissal should be without prejudice. Mosely then verbally renewed the motion to amend  the first suit.  That was denied.  The second suit was dismissed with prejudice since the SOL had run.  A jury trial was held on the claims against the doctor and a jury found for the doctor.  The estate appealed the dismissal of the second suit, the denial of the motion to consolidate  and the refusal to allow an amended complaint in the first suit.  The cases were consolidated on appeal. The COA affirms.


Paul Berlin and Janice Berlin v. Livingston Property Owners Association, Inc., A Mississippi Non-Profit Corporation –  restrictive covenants – Paul and Janice Berlin live in Livingston, a covenant-restricted community in Madison County.  The Berlins asked the Architectural Review Committee to approve a fence.   The ARC declined to approve the proposed fence on the ground that it would interfere with the maintenance easement. The Berlins built the fence anyway.  LPOA sued the Berlins.  The chancellor found that the Berlins  were in violation of the restrictive covenants and  ordered them to remove the portions of their fence that extend across the easement and into the lake. She also awarded LPOA attorneys’ fees. The Berlins appealed.  The COA affirms.

Sharon Sallie  v. State of Mississippi – false pretenses – Sallie was convicted of conspiring with her daughter Jessica Plaxico and son-in-law, Ahmad Fryar  to obtain money from Wilma Colom through false pretenses and for actually committing the crime of false pretenses.  Plaxico and Fryar  rented a room from Colom who owned a motel in Tiplersville.   Plaxico told Colom that a doctor left medical instruments s in her body when she gave birth.   Plaxico said she planned to sue the doctor and claimed that she needed money for the lawsuit.  She promised Colom she would repay her when teh money came in.   Colom asked Sallie if Plaxico’s story was true and  Sallie said  it was.   Colom sent Sallie $2,160 in September 2012, and then two $50 money orders.  She kept giving money until she found out it was a scam.  On appeal Sallie claims that Count II of the indictment was defective because it failed to delineate the specifics of the false pretenses charge.  The COA affirms.

Jimmy T. Brown  v. State of Mississippi – fondling /suppression of statement –  Brown was convicted of two counts of fondling his granddaughter who was under the age of 16.  On appeal he complains that the indictment was defective for failing to contain specific dates on which the fondling was to have occurred and he  also challenges the weight and sufficiency of the evidence.  The Court finds no error.  He then argues that the trial court should have suppressed a videotaped statement of an interrogation by Det. Jerry Owensby.  Owensby had the mother of the victim call Brown and record the call. After the call was concluded, Det. Owensby arrested Brown and interrogated him.   Brown argues that the interrogation was based on the phone call and because the phone call was at Owensby’s request and he was not given Miranda warnings before the phone call, the statements made during the interrogation should have been suppressed.  The COA finds that Brown had no reasonable expectation of privacy in the phone call; nor was he entitled to Miranda warnings.  As for the interrogation, the trial court found that it was voluntary and the COA cannot find that the trial court abused its discretion.

Marcellos Coleman  v. State of Mississippi –  alleged prosecutorial misconduct in closing – Coleman was convicted in the kidnap and murder of Duan Penn in Hinds County. Penn’s body was found in flames after someone reported a fire.  The body could not be identified. Fragments from a blue tarp were found at the scene.  A month later police were investigating Penn’s disappearance when they received information that Penn had been murdered by Coleman,  Marcus Shelby, and Janice Pittman. Pittman was Coleman’s neighbor.  She told police that she had been wakened by a scream and looked outside to see four men standing over Penn demanding to know where their stuff was and kicking Penn.  She then saw a fire rising from the ground.  One man told Pittman that Penn had implicated Pittman’s daughter in a burglary of Coleman’s house. The man asked Pittman if she was going to confront Penn and she hit Penn  four times. She saw the men carry Penn into the backyard.  One man asked her to go get gas.  Police found a blue tarp and a burn pit in Coleman’s backyard.

Coleman testified that Penn approached him and told him he had info on the burglary of Coleman;s house.  Pittman  confronted Penn saying that  Penn was spreading rumors about her daughter’s involvement in the burglary.  Pittman and Penn fought.  Pittman’s boyfriend stopped it.  Coleman  went inside his house and fell asleep with his girlfriend, Quinyetta Billups.  Billups was unavailable at trial and the court allowed the defense to read Billups’ testimony from a previous bail hearing giving Coleman an alibi. Coleman was convicted anyway. On appeal he argues that the prosecution committed misconduct in closing commenting on Billups’ absence, Coleman’s multiple girlfriends, and stated that Coleman “hoodwinked our government” because he drew military disability checks. The COA finds that there was no objection.  Nevertheless, “the  statements were not so inflammatory that the circuit judge should have objected on his own motion. Nor do we find that the natural and probable effect of the improper arguments created unjust prejudice against Coleman. The case presented by the State provided overwhelming evidence of Coleman’s guilt, and any error that may have occurred was harmless error.”

Stanley Lee Bradley  v. State of Mississippi –  send a message argument – Bradly was convicted of aggravated assault after he got into an argument with his girlfriend’s brother and stabbed him several times with a pocketknife.  On appeal he argues that the verdict is against the weight of the evidence.  He also argues that the prosecution committed misconduct in making a “send a message to the community argument.”  The argument included several statements along the lines of “Good citizens have to say we’re not going to have that mess in our society.”  The COA notes that there were no objections to the argument and the issue if procedurally barred. Furthermore, “[t]he prosecutor did not urge jurors to use their verdict to send a message to anyone. Instead, the prosecutor argued that the evidence showed Bradley was guilty, his behavior was not merely a family dispute but unacceptable and unreasonable, and the jury should hold him accountable.” The COA affirms.


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