Decisions – COA – Aug. 29, 2017

Holly S. Morgan v. MML Investors Services, Inc., Massachusetts Mutual Life Insurance Company and Stephen Collins, Individually and d/b/a Collins Financial Network –   apparent authority –  Ralph  Moore was a registered representative of Massachusetts Mutual Life Insurance Company and a unit sales manager for Collins Financial Network.  Holly  Morgan had known Moore for twenty-five years. In February 2009, Morgan gave Moore $20,000 in cash. She says the cash was for an unspecified “investment” and that Moore promised an eighteen to twenty-five percent return in only six months. Moore claimed that  Morgan asked him to hold the cash for her as a favor and later told him to bet it on the Super Bowl. He eventually lost it all.  She then gave him $75,000 for another unspecified “investment.”  Moore claimed it was a loan for a friend who couldn’t repay it.  Morgan sued Moore, MassMutual,  and Stephen Collins, individually and d/b/a CFN,  for breach of contract and conversion. She argued that MassMutual and Collins were liable because they clothed Moore with “apparent authority” to enter into the alleged investment contracts.  The trial court granted summary judgment for the defendants other than Moore and certified it as final. On appeal, the COA affirms. In this case, Morgan “never received a contract, an account statement, or any other documentation from either MassMutual or CFN. Morgan was never contacted by—and never contacted—any other person affiliated with either entity. She says that she never requested or received any information whatsoever concerning the nature of her investments.” “Morgan’s alleged reliance on her own assumption that Moore had the authority to enter into the alleged investment contracts on behalf of MassMutual and Collins was not reasonable reliance.”

Eagle Green Energy, Inc. v. Forsite Development, Inc., Reventure Park Investments I, LLC, and Clean Energy, LLCforeign judgment – Forsite, a North Carolina corporation, paid $25,000 to Eagle Green, a Mississippi corporation to purchase thermal RAC’s.  When Eagle Green breached the contract, Forsite sued in N.C..  Eagle Green filed an answer asserting lack of jurisdiction and a counterclaim.  Forsite moved to strike Eagle Green’s  answer.  This was granted and the court also granted a default judgment for $25,000 in compensatory damages and $25,000 in punitive damages.  Forsite then enrolled the judgment in Mississippi. Eagle Green argued that the N.C. judgment was void. The Mississippi Court refused to do so.  Eagle Green appealed.  The COA affirms finding that Mississippi must give full and faith and credit to judgments from other states. Here, Eagle Green can hardly complain N.C. lacked jurisdiction when it filed a counterclaim in N.C.   Eagle Green could have attacked the validity of the N.C. judgment in N.C. but chose not to so the issues it raises now are barred by res judicata.

Kevern Fields v. Brian Ladner and Classification Hearing Officersprison discipline – Fields was written up and found guilty of possessing various contraband in prison. He lost 180 days in earned time.  He appeals arguing that the copy of the RVR (rules violation report) he was given was not legible.  MDOC admits the copy was not the best but that Fields had plenty of notice of the charges.  The COA affirms.

Jonathan Griffith v. Merlene Walllibel – Wall was the municipal clerk of Lumberton. Griffith runs a blog called the  “Lumberton  Informer.”  Anonymous commenters posted derogatory comments about Wall.  Wall sued Griffith in county court and lost.  The court held that Wall was  a public figure, there was no evidence the comments were made by Griffith, and there was no proof they were false inasmuch as they mostly consisted of opinions. Wall appealed to the circuit court arguing that federal law placed on Griffith an affirmative obligation to screen offensive material. Griffith did not file a brief.  The circuit court found this tantamount to a confession of error, reversed the county court and found that Griffith did defame Wall. Griffith appealed. The COA reverses finding that the  circuit court erred in taking Griffith’s failure to file a brief as a confession of error.  Wall’s argument that a federal statute placed an obligation on Griffith to screen comments on his blog was erroneous; he statute actually protects Griffith. “Because the record was neither complicated nor voluminous, coupled with Wall’s failure to make out an apparent case of error, we find that the circuit court should have disregarded Griffith’s failure to file a brief and affirmed the judgment of the county court.”

Tony L. Pagador v. Trustmark National Bankforeclosure – , Pagador purchased a home in Gulfport in 2006 entering into a deed of trust with T. Graham Mortgage Inc.,
which was secured with a promissory note.   Pagador made timely mortgage payments on the loan up until June 2010, when he learned that the house contained toxic Chinese drywall. Pagador and his family then moved out of the home so that remedial work could be performed on the house. He asked Trustmark for a forbearance from monthly loan payments for the period of time he and his family were not living in the home while repairs were being made. Trustmark offered Pagador a special VA forbearance and informed him by letter, which he signed and returned, that his loan was
in forbearance from July 1, 2010, through December 31, 2010.  In May 2011, Pagador requested an additional forbearance period because the drywall repair was still not complete and Trustmark issued a second forbearance period ending  August 31, 2011. In September 2011, Pagador requested a third forbearance period because the drywall remediation was still not complete.   Pagador’s mother contended she was told by a VA representative that Trustmark granted a third forbearance but there was no written proof of same and in March Trustmark foreclosed. Pagador appeals arguing that there were material issues concerning (1) whether Pagador was in default at the time Trustmark foreclosed on his home and (2) whether Trustmark breached the contract by failing to follow the conditions precedent specified in the deed of trust and the VA regulations and guidelines prior to foreclosing on Pagador’s home.  The COA affirms.

Shalonda Nikkia Vale  v. State of Mississippi – defective indictment – Vale was found guilty of burglary of a dwelling. On appeal she objects for the first time to the indictment. She was charged with breaking into a house “wherein valuable things were kept for use, and did carry away jewelry.”  The statute requires that the defendant be charged with breaking into a dwelling  “with intent to commit some crime therein.”

Vale’s indictment failed to include the element “with intent to commit some crime
therein.” The words “wherein valuable things were kept for use, and did carry away jewelry” do not equate to the statutory element needed to indict Vale on the charge of burglary of a dwelling. “It has been uniformly holden, that where the evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment, and proved; and the intent with which the act was done, must be proved to be the same with that charged.” Taylor, 214 Miss. at 267, 58 So. 2d at 665.

The COA reverses and renders.

Kevin Darnell Powell  v. State of Mississippi –   sexual battery – Kevin Powell was found guilty of  one count of sexual battery of his niece, a child under the age of fourteen.  On appeal he argues that he did not get a fair trial. He argues that when he complained to the court that his attorney failed to contact his witnesses, the attorney told the court that they were  character witnesses when they were fact witnesses.  The COA finds that the record is not sufficiently developed to address ineffective assistance of counsel issues.  He next argues that it was error to allow the person who interviewed the child to testify as an expert. Finally he argues he should have been granted a new trial or JNOV based on ineffective assistance. The COA affirms.

Pro se PCR appeals affirmed:

Marque D. West  v. State of Mississippi

Eric Pierce   v. State of Mississippi

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