Decisions – Miss.S.Ct. – June 29, 2017

Ronald Shinstock  v. State of Mississippi –  illegal search – William Valentine was caught with methamphetamine and law enforcement made a deal with him if he could lead them t o his supplier. Valentine set up a controlled buy from Shinstock and purchased an “eight ball” of meth for $260 in marked bills.  After the buy, law enforcement arrested Shinstock and found the $260 on his person and  scales in his bedroom.  He was convicted. On appeal he argues that his 4th Amendment rights were violated when officers entered his home to arrest him and found the scales.  The COA finds this argument barred because Shinstock failed to move to suppress in the trial court. And because the search was never challenged, there isn’t evidence in teh record to determine whether the search was legal or illegal. Shinstock also argues that his trial attorney was ineffective in failing to suppress the evidence.  The COA finds this issue cannot be determined from the appellate record and denies it without prejudice.

Cortaia Washington v. State of Mississippi – intimidation of a witness – Washington’s brother was on trial for armed robbery.  One of the witnesses against him was  Freda Austin.  Washington recognized Austin because she worked at a store where Washington shopped.  During the trial, Washington and her aunt Ashley Bryant went to the store and yelled at Austin.  Washington punched Austin several times and tore out her hair.  She was convicted of intimidating a witness and sentenced to two years with two months suspended.  On appeal she argues that her conviction was against the weight of the evidence. The COA affirms.

T.L. Wallace Construction, Inc., Thomas Wallace and Janette Wallace v. McArthur, Thames, Slay, and Dews, PLLCaccounting malpractice – Thomas Wallace owned Wallace Construction.  In 2007 he retired and let his employees run the company.  According to Wallace, between 2007 and 2011, top employees charged  $3.7 million of personal expenses were  to Wallace Construction and   Wallace ended up losing his business.  He filed suit against his accounting firm alleging that it should have discovered all of the fraud and theft.  The trial court excluded the Wallace’s causation expert Ralph Summerford and then granted summary judgment for the accounting firm based on a lack of expert evidence.  On appeal Wallace argues that expert testimony is not always required, that the testimony of Thomas Wallace should have been sufficient to overcome summary judgment, and that the court erred in excluding Summerford’s opinion. The accounting form cross appealed arguing that  the court should have dismissed the complaint on the basis of the statute of limitations, that the trial court erred in limiting discovery of company information to June 30, 2012, and that the court erred in denying discovery of the Wallace’s personal accounts. The COA reverses.

Because the trial court mistakenly believed that expert testimony establishing
causation was required in all malpractice cases, and because Wallace Construction presented  sufficient lay testimony to overcome summary judgment on the issue of causation, we affirm in part, reverse in part, and remand the case the trial court for further proceedings consistent with this opinion. In addition, we find that the trial court abused its discretion in disallowing reasonable access to the financial information of Wallace Construction subsequent to June 30, 2012, and in its denial of discovery of the Wallaces’ personal accounts.

Kale Rashaud Scott v. State of Mississippiself defense – Scott was convicted of killing one and shooting another during a graduation party in Lowndes County.  On appeal he argues that the verdict was against the weight of the evidence and/or that the evidence was insufficient because the state did not prove that his actions were not in necessary self defense. The COA affirms.

Builders and Contractors Association of Mississippi, Home Builders Association of Mississippi, AmFed Casualty Insurance Company and AmFed Companies, LLC v. Laser Line Construction Company, LLC –  workers comp insurance – Laser Line purchased statutory workers’ compensation insurance coverage from the Builders and Contractors Association of Mississippi Self Insurers’ Fund. Because Laser Line was a general contractor, BCAM sought premium payments for all employees of Laser Line’s subcontractors who did not independently secure workers’ compensation coverage. Laser Line refused to pay premiums for employees of subcontractors who had fewer than five employees and claimed they were thus exempt from the coverage requirement. BCAM canceled Laser Line’s coverage for nonpayment. Laser Line filed suit for damages and a declaratory judgment.   The trial court granted Laser Line  partial summary judgment on the statutory interpretation issue. BCAM sought and was granted an interlocutory appeal. The Court reverses.

Here, Laser Line, a general contractor, chose to use subcontractors who employed
fewer than five employees and who did not secure workers’ compensation coverage.
Consistent with the statute and this Court’s interpretation and application of that statute, an employee of the subcontractor of the general contractor comes within the provisions of the Act. The language has the effect of making the employees of a subcontractor, where the subcontractor does not carry insurance for the protection of its employees, the employees of the general contractor within the meaning of the Workers’ Compensation Act—thus requiring Laser Line to secure workers’ compensation coverage for the employees of its uninsured subcontractors. See Mills, 56 So. 2d at 486-87; Miss. Code Ann. § 71-3-7.

 

Timothy Vivians v. Baptist HealthPlex, Becky Vrieland and Helen Wilson – premises liability – Vivians filed a lawsuit against Baptist Healthplex; Becky Vrieland, Baptist’s aquatics director; and Helen Wilson, an employee of Baptist Health Systems alleging negligence arising out of an accident wherein in February 2008, he  slipped and fell backward upon entering Baptist’s therapy pool.   The trial court granted summary judgment for the defendants and Vivians appeals.  The COA affirmed. The Miss.S.Ct. granted cert and reverses finding that  Viviens’ evidence of five prior falls meant that there was a material issues of fact whether the steps were a dangerous condition and whther Baptist failed to take reasonable steps to fix the condition.

Tyler Edmonds  v. State of Mississippicompensation for wrongful conviction – In 2003, 13-year-old Edmonds was charged along with his half-sister of   murdering his  brother-in-law Joey Fulgham, during a Mother’s Day weekend shooting in 2003. Fulgham died of a gunshot wound to the back of the head.  Edmonds initially told investigators he held a .22-caliber rifle, while Kristi Fulgham put her arms around him and they both fired the fatal shot. Edmonds then recanted his story, claiming he was outside Joey Fulgham’s house at the time of the shooting. Both were found guilty of Joey Fulgham’s murder in 2004.  His conviction was overturned and he was acquitted after a retrial. Edmonds  filed suit in state court seeking compensation under the Compensation to Victims of Wrongful Conviction and Imprisonment Act. The trial court dismissed the suit pursuant to M.C.A.  § 11-44-7(c), which disallows recovery if a plaintiff fails to prove, by a preponderance of the evidence, that he did not “fabricate evidence to bring about his conviction” – in this case Edmonds gave a false confession.  The Mississippi Supreme Court reverses finding that  an element of the fabrication bar to recovery is intent and here there is a material issue of fact with regard to whether Edmonds intended to fabricate evidence.  The Court also agrees with Edmonds that he is entitled to a jury trial.

The Court  amends MRAP 2 and the comments to 2 and 4 to clarify that   “[t]he time for taking an appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases, but not in civil cases.”  (Post conviction is typically considered civil; I assume this is the reason for the clarification).  See the changes here. 

 

The Court grants cert  in this case: 
Demario Walker  v. State of Mississippi – (the link is to the COA opinion) – parole violation – Demario is a con man who finds it impossible to conform his behavior so that he doesn’t violate the law. He was on probation from various charges when his parole offer sought to revoke him for failure to meet with his parole officer, failure to pay fees and fines, etc.  The court revoked his probation and ordered he serve the remaining part of his five-year sentence.  Demario filed a pcr and lost.  He appealed and the COA affirmed the revocation but found that the revocation was for technical violations and, thus, the court was limited to revoking him for 90 days as per statute. Demario, though, was convicted of more crimes in Rankin (thank you Rankin County prosecutors!) in August of 2016 so he’s not getting out soon.  But when he does, don’t ever take a check from this guy. A few years ago he was indicted as an habitual in Hinds but the Hinds DA agreed to let him plead to time served.  (My father was one of his victims in Hinds County). At any rate, both Demario and the State filed cert. petitions (Demario has filed hundreds of lawsuits throughout his criminal career; its part part of his sociopathy – just Google him).   The Court granted both cert petitions.

Demario cert     Demario – State’s cert petn

Demario argues 1)  there was no evidence he violated probation and 2) he wasn’t on probation in Jefferson Davis but rather on probation in half a dozen other Mississippi counties.

The State argues that this was not, as the COA characterizes it, Demario’s first technical violation but rather his third.

And grants an interlocutory appeal in this one:

Carl William Arnold, Jr., Lynda Arnold Gambrell and Deborah Arnold Herndon v. Annie J. Arnold – withdrawal of attorney – In 2015, Debbie Herndon, Lynda Gambree and Carl Arnold  filed a petition to have a conservator, namely Debbie,  appointed for their  father Carl Arnold.  Arnold’s wife Annie objected.  A GAL recommended that Debbie be appointed and the Court initially agreed. The Court then changed its mind and decided to appoint Annie.  The children were upset and fired their attorney and hired a new attorney.  Their initial  attorney moved to withdraw but the trial court refused to allow it.  He filed an interlocutory appeal which the Court grants and orders that the trial court allow the attorney to withdraw.

Arnold cert petition        Arnold order

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s