Decisions – COA – June 27, 2017 – part 2

Mississippi Department of Human Services v. Ben Porter –  child support choice of law –  S.M. was born in April 1995 to Gail Morris in Chicago, Illinois.  Illinois filed a paternity action against Porter but the case was dismissed for inactivity.  Porter moved to Mississippi.   In December 2011, the Illinois Department of Healthcare and Family Services  requested MDHS to petition a Mississippi court for  paternity.  A dna test proved Porter to be S.M.’s father.  In 2015 the court ordered Porter to pay $252 per month in child support until S.M. turned twenty-one—a total of ten months of child support—unless S.M was emancipated before turning twenty-one.  Porter moved to set aside the judgment, arguing that Illinois’s age of majority, nineteen,  applied, rather than Mississippi’s age of majority of twenty-one.  The chancellor agreed and set aside the previous order.  MDHS appeals and the COA reverses. Mississippi was the responding tribunal, it was the only court to issue a support order, and under the UIFSA, it had the duty to determine  support including the  amount payable in accordance with the law and support guidelines of Mississippi. M.C.A.  § 93-25-303.

In the Matter of the Estate of Houston T. Jarvis, Sr.: Shelby J. Kilpatrick, Individually and as Executrix of the Estate of Houston T. Jarvis, Sr. v. Houston T. Jarvis, Jr. and William C. Jarvis –  constructive trust – Houston Jarvis had three children.  He left his estate to be divided equally among them.   Seven years before he died in 2011,  he added his daughter Shelby Kirkpatrick onto his checking account  and a year later moved in with Shelby.   During these years before his death, Kilpatrick  transferred various of her father’s funds.  Less than one month before Jarvis’s death, Kilpatrick withdrew$5,000 from Jarvis’s checking account and the liquid certificate-of-deposit account. As of the date of Jarvis’s death, the balance of the checking account was $33,981.10. And as of December 31, 2011, the balance of the liquid certificate-of-deposit account was $122,405.46.  Shelby told her brothers that there was no money left in the estate but that her father had left her a cd worth $100,000.  Shelby filed to probate the will.  The brothers filed a complaint for accounting and other equitable relief. The cases were consolidated.  The chancellor found no confidential relationship but found that Shelby’s report that there were no funds in the estate “was substantial overreaching.  The court imposed a constructive trust to include the funds in Jarvis’s checking account at the time of his death as well as the balance of the liquid certificate-of-deposit account, as of December 31, 2011. The constructive trust also included the $5,000 that was withdrawn from both accounts shortly before Jarvis’s death.  Shelby appealed. The brothers cross appealed arguing that the trust should have included more money.   The COA finds the brothers’ argument to have merit and finds that the trust should have included Shelby’s  certificate-of-deposit proceeds of $83,452.19

Clonelle Shields  v. State of Mississippi –  parole recommendation – Shields pleaded guilty various counts of business burglary, assault on a police officer, etc,  in 2010.  In 2016 he filed a petition for parole eligibility and/or to correct sentence. His first  request is actually for a parole recommendation and the trial court has the discretion whether or not to recommend parole. A trial court’s denial of same is not an appealable order.  As for the petition to review and correct sentence, Shield’s request is barred by the 3 year SOL.

Kim Collins  v. State of Mississippi –  disturbing the peace – In 2013, Collins was stopped for speeding by MHP Officer Matthew Hood in Monroe County.  Hood gave her a ticket for speeding and no insurance.  According to Hood, she stated that he was a racist motherfucker before speeding off.  Hood yelled at her to stop her vehicle.  He then ticketed her for “(1) disturbing the peace for calling him a “racist motherf—-r,” (2) disorderly conduct for Collins’s failure to comply with his command to get out of her car, (3) public profanity for cussing in the presence of another trooper,  the EMTs, and ‘other motorists,’ (4) resisting arrest for refusing to allow him to handcuff her, and (5) speeding for driving eighty miles per hour in a sixty-five-mile-per-hour zone.” She was found guilty and appealed it up to the Mississippi Supreme Court.  The COA reverses all but the speeding ticket agreeing with Collins that Hood did not have probable cause to stop her again for allegedly yelling “racist motherfucker.”

Despite the State’s arguments, and regardless of whether Collins had uttered fighting
words, we find that the circuit court erred, and Trooper Hood’s arrest of Collins for
disturbing the peace was illegal, as she had not committed the offense of disturbing the peace when he ordered her out of her car for calling him a “racist motherf—-r.” Taking Trooper’s Hood’s statement as true, as we must, not only had Collins not committed the offense of disturbing the peace, she had not committed any of the other offenses that Trooper Hood later charged her with.

Charles H. Griner, Jr. v. Melanie Grinerdivision of marital assets – Chip and Melanie married in 1990 and had two children. They separated in 2010. Chip’s family owns Griner Energy so there was considerable money involved. The COA finds that the chancellor erred in valuing the marital estate and reverses and remands.

The Estate of Sylvia F. Minor and Paul S. Minor v. United Services Automobile Association  – punitive damages for breach of insurance contract – The Minors’ home was destroyed by Katrina. Dissatisfied by the amount offered by  USAA to fix the house, they sued. The trial court granted summary judgmemt on the Minors’ punitive damages claim. A jury awarded $1,547,293.37 on the breach of contract claim. On appeal the COA affirms the jury award (finding that the Minors did not ask for an additur below) but reverses the trial court’s grant of summary judgment on punitives finding that there was an issue of fact that required a jury to decide punitive damages.

Curtis Norris and Jo Hannah Hall v. J.B. Hunt Transport, Inc.time for filing notice of appeal – Hall was a passenger riding with Norris on Norris’ motorcycle when they claim that they were forced off the road by an eighteen-wheeler owned by J.B Hunt.  A jury found for J.B. Hunt.  The court entered final judgment on April 10, 2014.  Hall and Norris timely filed separate post-trial motions. On April 17, 2015, the circuit court denied Hall’s post-trial motion, and on April 30, 2015, the court denied Norris’s post-trial motion. On April 28, 2015, Hall filed a motion for reconsideration of the denial of her post-trial motion. On May 1, 2015, Norris joined in Hall’s April 28, 2015 motion for reconsideration and on May 11, 2015, filed his own motion for reconsideration.  On September 15, 2015, the court denied the motions for reconsideration. Norris filed his appeal on September 23, 2015, and Hall filed hers on October 6, 2015.  The COA dismisses the appeals finding that they are untimely.

The post-trial motions that Hall and Norris filed in April 2014 were motions under
Rule 59, seeking a judgment notwithstanding the verdict, or, alternatively, a new trial. When the circuit court denied Hall’s motion on April 17, 2015, and Norris’s on April 30, 2015, their thirty-day appeal time began to run. Bresler v. Bresler, 824 So. 2d 641, 642-43 (¶5) (Miss. Ct. App. 2002); Pruett v. Malone, 767 So. 2d 983, 985 (¶10) (Miss. 2000). Therefore, Hall had until May 17, 2015, to file her notice of appeal, and Norris had until May 30, 2015, to file his notice of appeal. Neither of them did.

City of Jackson v. Kearney Brownworkers comp. – Brown was a police officer in Jackson when he responded to a call in July 2012.  He was in his patrol car behind two other patrol cars when his car sped from fifty-three miles per hour to ninety-one miles per hour in twelve seconds and Brown crashed into the car ahead of him even though that car had not been accelerating.  Brown was ejected from his care and injured.  The City denied benefits arguing that  Brown intentionally caused the accident.  The Commission awards Brown benefits. The COA affirms.

2 thoughts on “Decisions – COA – June 27, 2017 – part 2

    • Congratulations but I doubt that it’s a better honor since I’m summarizing all the case.

      It’s weird that there are so many mistakes with regard to interstate child support enforcement. Last month I briefed a case in the trial court wherein the other side was arguing that the parent’s payment of child support in another state was res judicata on the issue of how much was owed. I guess we’ll see if that one gets appealed.

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