Decisions – Miss.S.Ct. – June 1, 2017

Drake L. Lewis v. Tonia D. Lewis Pagel – divorce venue – Drake and Tonia were married in 1991. Tonia filed for divorce in  2006 and an order of divorce was entered in January of 2008.  This is the third appeal.  On this appeal,   Drake argues that  the order of divorce should be voided due to a lack of jurisdiction and that the chancellor erred in finding that he resided in Harrison County.  Drake claims that he never resided in Harrison County and that it was an improper venue for the suit.  The couple lived together in Jackson County.  Tonia claimed he moved to Harrison County and Drake wrote on his 8.05 that he lived in Biloxi which is in Harrison County.  The Court finds no error in the chancellors finding that Drake lived in Harrison County.  Drake also argues that the court erred in finding him in contempt.  The Miss.S.Ct. finds no error there either.

State of Mississippi v. Kevin Scott –   death penalty/Atkins hearing – Scott was indicted along with Leroy Lynch for the capital murder of Richard Lee.  Scott was sentenced to death.  He was later allowed an  Atkins hearing to determine whether he was so mentally deficient as to be ineligible for the death penalty.  The trial court found that Scott was sufficiently mentally disabled under Atkins. The State appealed arguing, among other things –  that Scott should have been required to take a certain test to determine malingering.  The Court affirms holding that the requirement to take a specific malingering test was expressly overruled four months after Scott was decided. It was also not error to allow Scott’s experts to testify.

Estate of Rose Greer, Deceased: John Oaks a/k/a John Oakes v. Linda Greer Ball –  testamentary provisions in a contract   – In  2002, Rose Greer leased some farmland in Lincoln  County to  Jene and David Nunnery.  The rent was $600 per month for a  one-year initial term. The lease included automatic one-year renewals, with a final termination date of July 31, 2025.  The lease contained a section in contemplation of Greer’s death: “In the event of the death of the Lessor, this lease agreement shall not terminate[;] rather the rights and obligations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.”  Greer died in 2010.  Her 2009 will left the remainder of her estate to John  Oaks but did not mention the lease assignment to Ball.  In 2013,  Oaks filed a complaint for declaratory relief against Ball asking the court to find the section of the lease dealing with Greer’s death to be invalid. Oaks claimed that the assignment was not valid because it was testamentary in nature and did not comply with the requirements of a testamentary document.

The COA reverses finding that the conveyance was testamentary. The Miss.S.Ct. grants cert. “because this Court previously has not addressed testamentary provisions in a contract”  and affirms the COA.  Justice Dickinson writes, “Since at least 1855, we have recognized that when an instrument, however styled, conveys an interest in property, but ‘the intention was, that it should have only a future operation after death,’ courts must treat the instrument as a will.”   “The distinction turns on whether the instrument conveys any present interest to the grantee.” In this case,  Greer’s rights and obligations under the lease do not vest in Ball until Greer’s death. So, this provision, standing alone, would be testamentary.   But the lease between Greer and the Nunnerys took effect duyring Greer’s life. At most, then, Ball was a third party beneficiary and she had no vested interest during the life of Greer.   “Because Ball, the grantee, lacked a vested right, Section 3 must be deemed testamentary in nature and treated as a will. The parties agree the lease failed to comply with the statutory formalities required of a will, so we affirm the Court of Appeals’ decision to reverse the chancellor’s decision finding Section  enforceable.”

Greg Estes and Jeff Estes, Co-Executors of the Estate of Joe Howard Estes, Deceased v. Sarah Young Estes –   right of spouse to inherit where parties divorcing – Right after Sarah and Joe married, Joe experienced severe health problems requiring amputation of one leg.  Sarah moved out and filed for divorce. Nine months after the wedding, Joe died.  His will left nothing to Sarah.   for nine months when Joe died. Sarah contested  the  will and the Lee County Chancery Court granted Young a widow’s allowance and a child’s share of the estate. On appeal, the COA  reversed and rendered the widow’s allowance and reversed and remanded the child’s-share inheritance for further analysis as to whether Young had abandoned the marriage as a matter of law. On remand, the chancery court determined that Young had not abandoned the marriage as a matter of law and again granted her a child’s share of the inheritance.  Joe’s family appeals.  The COA again reverses and renders. The Miss.S.Ct. grants cert. and holds “that  the chancellor did not manifestly err when he determined that Young had not abandoned the marital relationship and was entitled to a child’s share of Estes’s estate” reversing the COA and affirming the trial court.

Hosan M. Azomani v. State of Mississippimedicaid fraud –  Pediatrician Dr. Azomani was convicted of two counts of Medicaid fraud and sentenced to  two concurrent terms of three years.   On two separate days (one in October 2010, and another in January 2011,  he billed for treating 56 children and then 69 children.  He was paid $14,715.66 for the two days.   Experts who reviewed Dr. Azomani’s records for the MFCU unanimously concluded that none of the children Dr. Azomani treated during those two days should have been billed under code 99215. On appeal he argues that (1) he was not tried in the proper venue; (2) the statute of limitations had expired; (3) the jury was improperly instructed; (4) there was insufficient evidence to convict him; (5) he received ineffective assistance of counsel; and (6) cumulative error.  As for venue, Azomani argues that the medicaid fraud statute allows for venue in Hinds or the county where the defendant resides.  Azomani was tried in Washington County – the clinic where the violations occurred and not in Madison where Azomani resides.  Since Azomani is not raising a venue claim pursuant to the Constution, his failure to object at trial waives the issue.  Azomani argies that the SOL is 2 years pursuant to MCA Sect. 99-1-5.  However that statute states that  that “[t]he passage of time shall never bar prosecution against any person for the offense[] of . . . obtaining money or property under false pretenses or by fraud . . . .”  The COA affirms. The Miss.S.Ct. granted cert and also affirms.

Byron Perry  v. State of Mississippi  –  speedy trial – Perry was convicted  of the aggravated assault of his girlfriend  and possession of a weapon by a previously convicted felon and sentenced to a total of 30 years as an habitual.  On appeal he argues speedy trial and that the prosecution failed to prove he was a habitual.

In the Matter of the Estate of Robert Ernie Johnson, Deceased: Robert A. Johnson v. Myra Linda Henderson, Executrix – sanctions/failure to appear for deposition –  Robert A. Johnson’s father died.  His stepmother, Myra Linda Henderson, filed a petition to probate his father’s will. The  will left nothing to Johnson or his brother.  Johnson filed a petition to contest the will.  When Johnson’s deposition was noticed, Johnson moved to quash it.  He did not wish to travel from California to Mississippi.  The trial court ruled that Johnson could be made to be deposed in Mississippi but suggested he be given 30 days’ notice.  Johnson made it clear that he would not be there and did not show.  Henderson moved for sanctions.  At the hearing, Johnson claimed he was too busy to attend but could be deposed in February.  When asked why he had not filed anything, he told the Court that he had been unable to coordinate with his California attorney   regarding documents. The trial court rejected Johnson’s request that any sanctions be financial and dismissed the case stating  “I cannot allow somebody to file an action in a will contest or otherwise in my Court and not make themselves available to the Court for necessary discovery. I can’t allow it. It’s frankly, contemptuous. And also, if it’s not done, all it does is slow down the wheels of justice.” The Miss.S.Ct. affirms.

The Court grants cert in Edward Springer v. Ausbern Construction Co., contract – (the link is to the COA opinion).  Chickasaw County needed 1.398 miles of road constructed.  Ausbern planned to submity a bid and consulted the County Engineer  Edward Springer to get specs.  Ausburn’s bid was the lowest and it did the road.  Afterwards it realized that the amount of “topping” (asphalt overlay) used was much more than that estimated by Springer  and contacted Springer and the State Aid office to make a claim for the excess material.  Springer responded and admitted that there had been an error in the original calculations, and that the project should have taken 10,605 cubic yard of fill material.  Ausbern filed suit against the Chickasaw County Board of Supervisors for breach of contract and  against Springer alleged that Springer maliciously interfered with the contract. At the conclusion of the trial, the jury returned a verdict in favor of  Ausbern awarding  $387, 793.50 from the Chickasaw County Board of Superiors and $182,500 from Springer for tortious interference of a contract.  The COA reverses and renders.

Ausburn Construction filed a cert petition arguing among other things that “the Court of Appeals simply substituted its view of the evidence for that of the properly instructed jury and found that, in its opinion,  there was insufficient evidence of malice to support the verdict of intentional interference.

Ausbern cert petition


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