Decisions – Miss.S.Ct. – May 25, 2017

Chaka D. Smith v. Charles E. Webster – election contest – Smith and Webster vied for a circuit judge seat in the Eleventh Circuit (Tunica, Coahoma, Quitman Counties).  Webster received 3,255 votes to Smith’s 2,369 votes.  390 of  the votes cast were by absentee ballot and Webster received 296 of these; Smith 94.   After the election was certified, Smith conducted statutory examinations of the ballot boxes pursuant to MCA 23-15-911(1).  During the examinations, she requested to photocopy or scan the contents of the ballot boxes. The circuit clerks denied these requests.  She thereafter  filed a petition in the Quitman County Circuit Court seeking both declaratory relief regarding her request to copy the ballots and to contest the election. The court held that she had no right to copy the ballots.  As for her election contest, she submitted reports from  two  “geocoding” experts stating that  1,385 registered voters in Coahoma and Quitman Counties were assigned to the wrong subdistrict.  The court granted Webster’s motion to strike the experts.  The court granted summary judgment for Webster holding that even if Smith were right, even assuming 600 persons unlawfully voted in the election or were unable to vote in the election and that all 600 would have voted for Smith,  Webster still would have won by 84 votes. On appeal the Miss.S.Ct. affirms.

Candice Rae Shurden Ballard v. Joe Marshall Ballard and Teresa Ann Ballardboth parents unfit? – Candice and Marshall  were married in 2006. They eventually agreed to an ID divorce with the chancellor to decide custody, etc.  The court determined both parties were unfit and awarded custody of three minor children to DHS  but placed the children with Marshall’s parents. On appeal Candice  argues that the chancellor relied  on hearsay to establish her “unfitness” and history of family violence.  The Court reverses the custody decision because the chancellor failed to apply the Albright factors. “If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children.” The Court also reverses the division of property award because the chancellor failed to make an on-the-record analysis of the Ferguson factors.

Andy Barlow, D.C. v. Mississippi State Board of Chiropractic Examiners – chiropractor advertising –  The State Board of Chiropractic Examiners brought a formal complaint against Dr. Barlow. The complaint included charges that he advertised using professional designations other than “chiropractor,” “doctor of chiropractic,” “D.C.,” or “chiropractic physician” in violation of M.C.A.  Sections 73-6-25(1)(a) and 73-6-19(1)(b).  The advertisements included the designations  D.C.,  DACNB (“Diplomate of the American Chiropractic Neurology Board”), FACFN (“Fellow of the American College of Functional Neurology”)   and “Chiropractic Neurologist.”  The Board found that he violated the advertising restrictions, assessed a penalty of $500 and assessed costs of  $3216.00. On appeal to circuit court, the Board’s order was affirmed. The Miss.S.Ct. affirms the Board’s finding that Barlow violated the advertising restrictions (despite Barlow’s 1st Amendment claims) but finds that the Board lacked authority to assess costs to Barlow.

Leslie B. Shumake, Jr. v. Katarina Sitton Shumakecontempt – The parties were divorced in 2009 and Leslie was ordered to pay Katarina permanent periodic alimony of $5,750 per month. In March, 2009, Katarina filed for contempt for failure to pay.  Leslie  filed for a modification arguing that his bankruptcy filing was a material change in circumstances.  In 2012, the chancellor ordered Leslie to pay  $3,250 per month until the completion of his Chapter 13 bankruptcy payments and then he would pay $4,225 per month. He also found Leslie in arrears  in the amount of $58,550, and ordered him to pay an additional $1,500 per month, following the completion of his bankruptcy payments, until he had fully paid the arrearage. Leslie appealed. The Court of Appeals reversed and rendered the chancery court’s order for Mr. Shumake to pay the $58,550 arrearage. The Miss.S.Ct.  granted cert and reversed the COA.  In 2014,  Katarina again filed for contempt alleging Leslie was $38,600 behind and  despite Leslie’s completion of his bankruptcy payments, he had not increased his alimony payments to $4,225 and had failed to pay the additional $1,500 per month toward the $58,550 arrearage.  Leslie admitted that he had not paid the full amounts ordered by the court, but asserted that he was not in wilful contempt because he had been unable to pay the sums ordered.  The chancellor found him in wilful contempt and  awarded Katarina $65,300  for alimony arrearages,  $10,468 for the unpaid arrearage on the first mortgage, three percent interest on those amounts from the date of the judgment. He also found that the $58,550 alimony arrearage remained unsatisfied in full. To secure Mr. Shumake’s payment of future alimony, the chancellor ordered an equitable lien against all future gross income of his law practice. Finally, the chancellor denied Mr. Shumake’s motion to modify his alimony obligation. Katarina is also awarded $6000 in attorneys fees. Leslie appeals. The Miss.S.Ct. affirms everything but the $6000 attorney fee award.

 

Jason Lee Keller v. State of Mississippi death penalty PCR – The Mississippi Supreme Court grants Keller a hearing on the claim that his trial counsel was ineffective in failing to investigate mitigating evidence.

Zachary Cozart  v. State of Mississippi – ex post facto – Cozart was charged with capital murder in the July 1, 2010, death of his girlfriend’s 21-month-old son.  At trial, he was convicted on the lesser included crime of manslaughter.  The court sentenced him to 30 years with 15 suspended  pursuant to M.C.A. Section 97-3-25(b) which increased the penalty for manslaughter involving children to an upper limit of 30 years even though that penalty was only enacted in 2013.  Cozart appealed arguing a violation of the ex post facto clause. The COA  found that Cozart waived this argument.  The Miss.S.Ct. granted cert. and find this to be plain error. The case is remanded for resentencing.

 

Rita Breece McIntosh v. Mississippi Real Estate Commissionrealtor discipline – Rita McIntosh is a realtor appealing the Mississippi Real Estate Commission’s disciplinary order against her finding that she engaged in  “improper dealing” after an appraser filed a complaint.   The Commission imposed a ninety-day suspension, plus a thirty-day suspension held in abeyance, along with eight months’ probation and continuing education courses.  The circuit court affirmed. On appeal the Miss.S.Ct. finds that what she did – communicating with parties about problems she had had in the past with the appraiser undervaluing properties – was  not improper dealing.

Thomas Edwin Loden, Jr. v. State of Mississippi – execution drugs – Loden filed a pcr objecting to the state’s use of midazolam as part of the three-drug, lethal-injection protocol.  The Court finds that his objection is moot since the legislature has changed the method.

And the Court grants cert in University of Mississippi Medical Center v. Kim Hampton, Individually and on behalf of Kimrick Smith, Deceased, and the Wrongful Death Beneficiaries of Kimrick Smith, a med mal/Tort Claims Act case (the link is to the COA opinion).  On October 30, 2010, Smith was stabbed in the torso in Marion County and airlifted to UMC for emergency medical care on Oct. 30, 2010.   He was released on November 3, 2010, but collapsed and died on November 8 due to blood leaking from the heart wound.  The heart injury was not discovered during Smith’s treatment at UMC.  . On November 11 or 12, 2010, Smith’s mother Hampton spoke to the doctor who performed the autopsy, who informed her of the heart wound. UMC received pre-suit notice of Hampton’s wrongful-death claim on November 7, 2011.  On February 28, 2012, UMC denied Hampton’s claim.  Hampton filed a pro se complaint on May 29, 2012.  After some discovery delays, UMC took Hampton’s deposition where she disclosed that at around the same time as the autopsy, she spoke to an attorney friend who told her that she had a case against UMC.  UMC moved for summary judgment on the SOL which was denied.  After a bench trial, the Court awarded Hampton $500,00.  On appeal, the COA reverses and renders finding that the SOL ran before Hampton filed suit.

Smith filed for cert. arguing that “The wording of 11-46-11 at the time this pro se plaintiff proceeded clearly states that should the governmental entity deny the claim, then the additional ninety days during which the claimant may file suit shall begin to run.”

 

Kimrick Smith cert petition

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