Decisions – COA- May 23, 2017

Joe Reel v. Sanford Warrencar wreck damages –  Reel was the passenger in a car rear-ended by Warren in Pearl, Mississippi.  Warren admitted liability.  Reel had medicals of  $10,914.12.  At trial Reel and his wife testified that Reel had neck pain after the accident but never before.   However, it was revealed that he had undergone an MRI in 2016 for neck pain. The jury awarded $2,480.12. Reel requested a new trial or an additur which was denied and he appeals. The COA affirms.

Jairus Collins  v. State of Mississippi – felon in possession – Collins was indicted for murder and felon in possession.  The charges were severed.  Collins was convicted of murder but the conviction was reversed on appeal because the court should have suppressed a statement Collins made.  He was then tried on the felon in possession charge which he moved to dismiss because it had been three years since he had been indicted.  The trial court denied the motion noting that he had not asked for a speedy trial. Collins was  found guilty of being a felon in possession of a firearm and was sentenced to life as an habitual. On appeal he argues that his speedy trial right was violated, the verdict was against the weight of the evidence and that the sentence was unconstitutional.  The COA affirms.

In the Matter of the Last Will and Testament of Dorothy True, Deceased: Patricia Ann True Schmidt and Mary Juanita True Hegwood v. James T. “Jim” True – will contest/necessary parties –   Dorothy True died at the age of 100 in 2014.  She had four children but one had predeceased her.  Her son Jim True filed a petition to probate an eight-page holographic will signed by Dorothy. It named as executors Jim and John, the son who had died. “Bequests were made to all four then-living children and to Jim’s son, Jamie. John and Jim were “to have $20,000 each CDs for helping [Dorothy] when [she] couldn’t do for [her]self.”  Daughters Ann  and Mary challenged the will.  The chancellor found the will to be valid and Ann and Mary appealed on the grounds that all necessary parties had not been joined.  John’s estate and his heirs were necessary parties.  Since they were not joined, the case is reversed.

Harry Lane v. Mississippi Department of Transportation, Southern District – Tort Claims Act /presuit notice –  Lane was riding a  motorcycle  on the ramp of MS 67 when he lost control and wrecked.  He blamed it on a damaged area of roadway.  He filed suit against MDOT which moved to dismiss on the grounds that his presuit notice was inadequate. The trial court granted the motion.  The COA affirms.

In summary, Lane’s notice of claim disclosed only that “[o]n or about” a date one year earlier he wrecked his motorcycle on Highway 67; that he suffered personal injuries and property damages; and that he was seeking damages “in excess of $28,983.53.” As discussed above, Lane’s notice of claim provided some information in four of the “seven required categories of information which must be included” in a notice of claim, Parker, 987 So. 2d at 439 (¶18) (quoting Guffy, 930 So. 2d at 1257-58 (¶18)), although the information in some of those categories was minimally sufficient at best. However, Lane’s notice provided no information to satisfy the other three requirements of section 11-46-11(2): the extent of the injury, his residence at the time of the injury, and his residence at the time of the claim. This information was absent even though the statute and multiple Supreme Court opinions had identified it as essential to a proper notice of claim. And unlike the claimant in Lee, Lane’s  notice of claim failed to provide alternative identifying information. See Lee, 999 So. 2d at 1267 (¶12). Rather, MDOT was informed only that someone named Harry Lane was making a claim against it based on a motorcycle wreck that occurred one year earlier.

 

Bertha M. Taylor, David D. Busha, and Steven C. Taylor, Heirs of Thomas E. Taylor, Deceased v. Reliance Well Service, Inc. and Liberty Insurance Corporation – workers comp/death of claimant – The claimant and the employer/carrier their  workers’ compensation dispute and submitted a joint application for approval of the settlement to the  Commission.  Before it could be approved, the claimant died for reasons unrelated to the claim. The Commission approved the settlement but then vacated it when it learned Taylor had died. Taylor’s heirs appealed. The COA reverses. “An injured worker’s non-work-related death, after a settlement agreement has already been signed and presented to the Commission for approval, does not implicate this statutory basis for disapproving a settlement. Accordingly, there was no material mistake of fact that justified setting aside the Commission’s prior order approving the settlement.”

Rothell Chambliss  v. State of Mississippi – jury taint by comment during voir dire – Michael Dubois was having a problem with campers on his property being broken into so he installed security cameras. After the next break-in, the Sheriff identified Chambliss as the perpetrator based on the security camera photos. Chambliss was convicted.  On appeal, he argues that the jury was tainted when a prospective juror stated he could not be fair because he had testified against Chambliss a year before for breaking in.  His attorney asked for a mistrial which was denied.  The COA finds no error.  “[T]the trial transcript shows that, at various points after the prospective juror made his comment, all the prospective jurors, including those ultimately seated on Chambliss’s jury, were asked by the trial judge whether they could be impartial and base their decisions solely on the evidence.”  He also argues that his right to confrontation was violated when a witness testified that the print from the crime scene matched a known print belonging to Chambliss in the state’s database. Chambliss did not object at trial. Nor was it error.

Brett Prince  v. State of Mississippi – aggravated DUI/ Intoxilyzer issues  – Prince was convicted on 5 counts of  aggravated driving under the influence and sentenced to 25 years after he hit a car in which the Salas family was riding.  One of the Salas children was killed, another is paralyzed and suffered brain damage.  On appeal he argues his conviction was against the weight of the evidence, that the court erred in admitting the Intoxilyzer 8000 results (.199) and that the court erred in refusing to instruct the jury regarding the officer’s duty to observe the Intoxilyzer for 20 minutes prior to the breath sample. The COA affirms.

David H. Vincent v. Joan Vincent Rickmanchild support contempt  – David was found in contempt to comply with an order to pay child support.  He appeals. The COA affirms.

Competition Marine of MS, Inc. a/k/a Competition Sports of MS, Inc. and Gina Prichard Nadeau v. Whitney Bank, A Mississippi State Chartered Bank f/k/a Hancock Bank, A Mississippi State Chartered Bank doing business under trade name Hancock Bank – promissory note/obligation to foreclose? – In 2007 Competition Marine executed a note payable to Whitney Bank in the amount of $700,000. In 2011, it executed a second note for $191,000 to Whitney Bank. Collateral for both was property in Gulfport. In 2014, both loans were in default.   Whitney Bank sued and Competition Marine counterclaimed asserting that the Bank led it to believe the notes were current in order to incur more fees and interest. Whitney Bank moved for summary judgment which was granted. On appeal, Competition Marine argues that there was a genuine issue of fact regarding whether Whitney Bank acted reasonably in choosing to proceed with a collection action against Appellants before pursuing foreclosure proceedings on the real-estate collateral used to secure the loan. It admits that Mississippi law is not in its favor.  The COA affirms.  “Here, the loan documents for both notes specifically call for monetary payment to the bank, and do not require the bank to foreclose in the event of a default. Accordingly, the lender may choose to proceed with a collection suit on the loan instead of foreclosing on real-estate collateral.”

Cornell Stubbs v. State of Mississippi burglary – Stubbs was indicted for burglary of a storage shed.  Prior to trial, he told the court he no longer wanted his attorney to represent him.  The court allowed Stubbs to represent himself but had his attorney stand by. On appeal he argues that his conviction was against the weight of the evidence.  He also argues that he was forced to go to trial after firing his attorney and should have been allowed a continuance.  The COA finds this issue procedurally barred.

Charles Shortie v. Rochelle George, Individually and as the Personal Representative for and on behalf of the Wrongful Death Beneficiaries of Oner K. Shortie, Deceased conflict of law/wrongful death proceeds – Charles and Oner Shortie were driving through Sunflower County when they were involved in an accident that claimed the life of Oner.  Oner, a South Carolina resident, died without a will.  Oner’s five  children from her previous marriages filed a wrongful death action in the Circuit Court of Sunflower County.  Charles Shortie would eventually join.  The case settled at mediation.  Thereafter a dispute arose as to whether South Carolina law or Mississippi law applied to the distribution of the wrongful death recovery.  Charles argues that Mississippi’s relationship with the accident is a “purely adventitious circumstance” and South Carolina law should control. The trial court held that Mississippi law controls.  Charles appealed.  On appeal the COA decides that S.C. law controls but Charles waived his right to claim that S.C. law controls because he waited a year to raise it.

Ronald Weeks v. City of Biloxi, Mississippi and its Civil Service Commissiontermination of police officer – Weeks challenged Biloxi’s decision to fire him as a police officer.  The firing came about after Weeks learned that his good friend  had tried to commit suicide. He was given permission to leave work and go to the hospital. While he was at the hospital, Weeks was notified he was needed on several calls.  After Weeks remained at the hospital for approximately two hours, his supervisor radioed and asked him to return to work but Weeks did not.  Instead he met with hospital staff  and discussed possible commitment to a psychiatric institution. Finally his supervisor drove to the hospital and ordered Weeks to return to work.  Weeks behavior disturbed his boss and Weeks was told to come home. Because of t his and other complaints against Weeks, it was decided he should undergo a psych eval. The psychologist found him unfit for duty.  He was then seen by a psychiatrist who also found him unfit for duty. Weeks was then terminated. Weeks got a hearing, appealed to the Circuit Court, and appeals again.  The COA affirms.

Gulfport Partners V, L.P., Gulfport Partners VI, L.P., Gulfport Partners VII, L.P., Gulfport Partners VIII, L.P., and Gulfport Partners IX, L.P. v. Harrison County Board of Supervisors and Tal Flurry, Tax Assessor for Harrison County, Mississippi –  costs and interest – Gulfport Partners appealed its 2011 ad valorem county tax assessment.  Meanwhile the Miss.S.Ct. handed down  Willow Bend Estates LLC v. Humphreys County Board of Supervisors, 166 So. 3d 494 (Miss. 2013), which interpreted the statute governing the determination of the true value of affordable rental housing for purposes of ad valorem taxation.  Based on that decision, the parties agreed  on the amount of the assessment for each property and a final judgment was entered.  The agreed order stated “that the court retain[ed] jurisdiction to consider costs and/or interest, if any.” “Gulfport Partners then filed a “motion to tax costs and prejudgment interest.” The costs requested in the motion included the costs of the bond premiums required to appeal the ad valorem tax assessment and prejudgment interest from the date of overpayment of taxes until the date of the refund.” The trial court denied both requests and Gulfport Partners appealed. The COA finds that the cost of the bond premiums is recoverable. And while the trial court can order payment of prejudgment interest, it cannot where it was not requested.  Gulfport Partners failed to demand prejudgment interest in its pleadings.

Pro se PCR appeals affirmed:

Sharone Simmons v. State of Mississippi

Travis Shanks  v. State of Mississippi

 

 

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