Decisions – COA – Sept. 19, 201

Christopher Walker v. Kinder Morgan, Inc. and Old Republic Insurance Companyworkers compensation – Walker began working for Kinder Morgan Inc. in 2011.  Before that he had a lot of lower back issues.  In fact, he was getting physical therapy for his back when he started there.  In 2015, he was in a car wreck. He was off of work for a week. When he returned he was assisting another employee in dismantling a compressor.  Three days later Walker told his supervisor that he had been injured when he was assisting with the compressor.  His doctor recommended surgery but the employer denied Walker’s claim.  Walker filed a petition to controvert. The AJ found for Walker.  The Commission disagreed and found for the employer.  On appeal, the COA affirms the Commission.

Deonna Stroud, Individually and for and on Behalf of David Stroud, a Non Compos Mentis v. Progressive Gulf Insurance Company, Virginia M. Conn, and Jennifer Guzmantolling of SOL for non compos mentis – David Stroud  worked hauling stuff and towing. In 2010, he sought to get  “cargo coverage.”  An employee of the Conn Agency,  Jennifer Guzman, obtained a policy through Progressive Gulf Insurance Company.  Later that year David picked up a trailer in Ohio to deliver to a customer in Montana. Somewhere between Ohio and Montana, the trailer collided with a tree limb, and David’s cargo was damaged. David submitted a claim but it was denied.  Three years and seventeen days after Progressive denied coverage, David’s wife filed a lawsuit. She argued that the statute of limitations was tolled because  David has been non compos mentis since 2003 as a result of a fall.  The trial court granted summary judgment for the insurer even though after Deanna filed the lawsuit on David’s behalf, she got a conservatorship over David.  The COA affirms finding that  to toll the statute of limitations, one has to prove non compos mentis by clear and convincing evidence.

There are no facts in the record to show that David’s difficulties with memory and concentration rendered him unable to manage the ordinary affairs of life. Indeed, the facts alleged in his own complaint refute the notion. The amended complaint states that “David Stroud contacted [the Conn agency] to request mandatory cargo coverage for David Stroud’s business which included hauling miscellaneous items and towing vehicles.” David further alleges that his claim arose while he was engaged in his hauling business—and transporting cargo from Ohio to Montana.

Jacob Reynolds v. State of Mississippi –  “retroactive misjoinder” of criminal charges –  Reynolds and two people and a companion robbed a Dollar General in Lauderdale County. Reynolds had previously worked there and he went in and purchased something before the two others rushed in wearing masks and armed with a gun and a baseball bat to rob the store.    A jury found Jacob guilty of two  counts of armed robbery but not guilty of the felon-in-possession charge. On appeal, he argues that (1) he should not have been charged with felon in possession and  he was unfairly prejudiced by evidence introduced on the felon-in-possession charge; (2) there was insufficient evidence to support his conviction on the second count of armed robbery because he did not take any property from the “person or presence” of the victim and  (3) his conviction on two counts of armed robbery for taking the same money violates double jeopardy.  The COA affirms.

Juanteaz McDonald v. State of Mississippi trial in absentia – Juanteaz McDonald was indicted along with two others on two counts of armed robbery.  McDonald did not appear on the morning of trial and the case was conducted in his absence.  On appeal he argues that it was error to try him without him being there because he had previously demonstrated a desire to participate in all stages of the trial process. This was somewhat undermined by the fact that his mother told defense counsel that when McDonald left the house that morning he stated  he was not going to court.  He also argues ineffective assistance of counsel.  The COA finds no error in the trial court trying McDonald even though he failed to appear;  the court did not err in determining that McDonald’s absence  “evinced his willful and wanton disregard for the trial process.”   His ineffective issues, though, will have to be raised in a  post-conviction pleading.

Linda Kaye Sumrall and Jerry Ruben Sumrall v. Tiffany Kay Brown and Timothy Jerrelstermination of parental rights/custody  – Tiffany Brown gave birth to a son in 2013.  At first, Tiffany, who had had behavioral problems throughout her teens,  refused to name the father but he happened to be a much older man, Timothy Jerrels,  she had been dating for several years.  Tiffany’s parents, the Sumralls, cared for the child, Trey, for his first year.  They then sought to adopt Trey and Tiffany joined in their petition. Jerells contested the adoption. Ultimately the case became a custody case and the court  ordered that Timothy and the Sumralls would share joint legal and physical custody of Trey, until the child reached school age. Timothy and the Sumralls each received weekly visitation. Once Trey reached school age,  Timothy would assume full physical and legal custody and the Sumralls would be awarded visitation every first and third weekend of each month. The Sumralls appealed and the COA affirms.

Timothy Price v. MTD Products and Safety National Casualty Corporationworkers comp – Price was employed by MTD Products for thirteen years starting in 1989.  He drove a modified forklift but would sometimes have to physically pick up boxes and stack them on the floor.   In September 2012, he claimed he hurt his back lifting lawnmowers. He ended up getting treatment and taking time off under the FMLA.  He stated his health insurance paid for the treatment because he did not know about workers comp.  He had previously been treated for back pain.  The AJ found that Price suffered a compensable work-related back. The Commission reversed.  On appeal, the COA affirms the Commission based on the fact that Price never reported an injury and he had been suffering from an ongoing back injury previously.

 

Earnest Antonio Keys v. State of Mississippirevocation of post-release supervision –  Keys pled guilty to armed robbery in 2007. . He was sentenced to serve ten years with three years to serve and five years of post-release supervision. After  Keys began serving his term of post-release supervision, he was arrested on another charge of armed robbery. A t the revocation hearing he  admitted he failed to pay the restitution and court costs and failed to report to his probation officer.  Keys’s post-release supervision was revoked, and he was ordered to serve the remainder of his sentence.  Keys was never tried on the second armed robbery charge.  It was passed to the files.   Keys then filed a motion to amend and/or reconsider the revocation of post-release supervision.  The court denied the motion and Keys appealed.  Here his supervision was revoked for the technical violations.  Bit even if it were for the arrest, he need not be convicted to have his release revoked. “Rather, the State must only show it is ‘more likely than not that the probationer committed the offense.’”  Moreover, once Keys began serving his no-longer revoked sentence, the court had no authority to alter the sentence.

 

John Cathcart v. Kenneth Fairly, Individually, and In His Official Capacity as Justice Court Judge, and Jessica Massey, Individually, and In Her Official Capacity as Justice Court Clerk  – –  private party has no right to force a criminal prosecution – Cathcart claims that he tried to attend a neighborhood association meeting but was forced to leave when  two individuals bullied him.  He went to justice court in Rankin County to file affidavits that the two had committed simple assault. The justice court held a probable cause hearing, where Cathcart testified, and the justice court apparently found that there was no probable cause to issue arrest warrants.  The disposition in the court abstract reads only “no authority per Judge Fairley.”  Cathcart filed a petition in the Rankin County Circuit Court asking the court to conduct a “trial de novo” on the question of probable cause and proceed with trying the cases as misdemeanors or binding them over to  grand jury to consider felony charges.  The circuit court held that that it lacked jurisdiction over the matter and dismissed it.  The COA affirms holding that a private party does not have standing to insist upon a criminal prosecution.

Gary Dillon and Shawna Dillon v. PiCo, Inc.failure to respond to request for admissions –  Gary Dillon was injured when he rear ended a vehicle  driven by
an employee of PiCo Inc. Dillon claimed the tractor trailer pulled in frint of him.     PiCo served Dillon with requests for admissions.  When Dillon failed to respond timely, PiCo obtained an order granting summary judgment.  The Dillons appealed. The COA affirms.

William Travis Lowell  v. State of Mississippi –  double jeopardy – In 2011, William Lowell pled guilty to a number of charges stemming from a crime spree he undertook to raise money for his wife’s medical treatment.  He pled guilty to three counts of grand larceny, one count of burglary, and one count of possession of stolen property. He subsequently filed a motion for postconviction relief contending he was subjected to double jeopardy because he was convicted of larceny and possession of stolen property for the same theft.  The circuit court dismissed the PCR motion without a hearing. The curt finds no error with the conviction .  It finds that while double-jeopardy claims are usually excepted from procedural bars due to their status as fundamental constitutional rights, in this case,  Lowell argues that he  committed a single larceny when he stole the two pieces of property at the same time and from the same person and place.  His attempt to “go beyond the face of the indictments and the record of his guilty plea” and establish a factual defense is foreclosed by his plea.   But since the state concedes it was error for the court to order Lowell to pay $278.50 in restitution to another victim, that part of the judge’s order is reversed.

Pro se PCR appeal affirmed: 

Jess Green  v State of Mississippi

 

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