Decisions – COA – Nov. 7, 2017

Jairus Collins  v. State of Mississippi –   murder – Collins was convicted of the December 2011, murder of   Ebony Jenkins whose  body was discovered behind the Mississippi Children’s Home Services Care School in Hattiesburg.  His conviction was reversed by the Miss.S.Ct. Collins v. State. Collins was retried and convicted again. On appeal he argues weight and sufficiency, that there was inadequate proof of corpus delicti and double jeopardy,  The COA affirms.

In the Matter of the Dissolution of the Marriage of James Catlin Tullos and Jessica Lynn Tucker Tullos: Jessica Lynn Tucker Tullos v. James Catlin Tullos –  modification of custody –  Jessica and James were married in September of  2004, had two children, and sought a divorce in December of 2013.  A few months later, a judgment of divorce was entered.  Jessica was given physical custody of the children, and James was given visitation and required to pay $1,000 per month in child support.  In  August of  2015, James filed a petition to modify alleging that  Jessica was using illegal drugs in the presence of their children.  The hearing was continued several times and a GAL was appointed.  At the hearing. Jessica did not appear.  The court agreed with the GAL and awarded custody to James.  Jessica appeals arguing that she did not have proper notice.   “[I]f a proper summons is given that notifies the other party of a new controversy that has arisen and of the date, time, and place for a hearing, the rule itself
provides that an order entered on the day of the initially scheduled hearing obviates the need for any new summons for a hearing actually held on the later date.”  Although there were five continuances here, “all orders were signed by the chancellor on each
respective hearing date. Therefore, the initial summons was preserved.”  The COA affirms.

Vernell Daven Miskell  v. State of Mississippi –  aggravated assault/ “ill will” instruction – Miskell and  Marquis Harris were indicted for aggravated assault.   Harris pleaded guilty and testified against Miskell.  They were at a party in Hattiesburg on December 21, 2014.  Albert Pollard was  purchasing marijuana from Harris when he  heard someone say, “Freeze, don’t move.” Pollard saw  Miskell run towards him with a gun pointed at him. As Pollard ran off,  he heard shots fired.  He was hit three times.  When Pollard fell to the ground, someone went through his pockets.  Despite the fact that Miskell testified in his own defense, he was convicted.  On appeal he argues that jury selection violated Batson, and sufficiency and weight of the evidence.  He also argues that  it was error to give the jury an instruction that the defendant need not have ill will towards the victim in order to commit an aggravated assault upon that person.  The COA finds that this is a proper instruction. And finally, he argues that the prosecution committed misconduct in closing when he talked about gangs and drugs.   The COA notes that there was no objection.  Nor did the comments cause unjust prejudice.  The COA affirms.

Anthony Little v. Donald Richey and Nancy L. Richey –  adverse possession  – In January  2011, Donald and Nancy Richey filed a complaint  asserting a claim of adverse possession to real property in Monroe County.  They initially sued  Tim Little and any unknown persons having any interest in the property.   The chancellor later granted the Richeys’ motion to join Tim’s son Anthony Little, as a defendant.  At the trial in April of 2016, the the chancellor dismissed Tim as a defendant due to the fact that he no longer owned the property. At that point  Anthony asked for a continuance to obtain an attorney.  The court granted a continuance. Two weeks before the new trial date, Anthony’s attorney entered an appearance and asked for a continuance to conduct discovery.  The court deniued the motion.  After the trial, the chancellor found in favor of the Richeys as to their claim of adverse possession. Anthony appealed arguing that it was error to deny him the opportunity to conduct discovery.  The court finds that   Anthony  executed a waiver of service of process on April 26, 2016, which stated that Anthony had “voluntarily enter[ed] his appearance in this matter and acknowledge[d] his status as a defendant pursuant to a January 18, 2013 order joining him  as a party, waiving service of process in this cause.”  He had plenty of time to conduct discovery.  Nor is the COA persuanded by Little’s argument that the Richeys’ failed to prove the elements of adverse possession by clear and convincing evidence. The COA affirms.

James D. Havard and Wife, Margaret Havard v. Tanelle Sumrall and Akeso Group LLCdismissal for failure to prosecute – In November 2010, James was about to undergo heart surgery.  The nurse anesthetist injected James with epinephrine even though it was contraindicated.  James had a heart attack. Two years later, he sued the nurse anesthetist Tanelle Sumrall.  A month later, James filed an amended complaint adding Sumrall’s employer the Akeso Group.  In October 2014, Sumrall filed a motion to dismiss for failure to prosecute arguing that nothing had been done on the case from January 2013 until September 2014.  The trial court dismissed the claims against Sumrall but not against the Akeso Group.  James appealed and the appeal was dismissed for lack of jurisdiction since the order dismissing Sumrall was not a final judgment.  Havard v. Sumrall.  Thereafter they obtained a default judgment against the Akeso Group in the amount of $1,270,000.  James again appealed the dismissal of the case against Sumrall.  This time the COA finds that it has jurisdiction but affirms the dismissal for failure to prosecute.

Jake Bias  v. State of Mississippi –  ineffective assistance/guilty plea – Bias was charged with statutory rape in 2011 after his daughter ended up with gonorrhea and chlamydia and the girl told her godmother that he had hurt her private area. An exam did not show any physical injuries.  Bias did not test positive for either STD – fact he learned only when the prosecutor mentioned it at his plea hearing.  He nonetheless pleaded guilty. In 2014, he filed a post conviction petition alleging that his attorney was ineffective  for failing to advise him of the fact that he had not tested positive nor had he been treated for any STDs and that  the child’s hymen was intact and that the child had been exposed  to numerous other men.  He also argues that his ultimate confession did not match the evidence. The trial court denied relief without a hearing.  On appeal he argues these issues and that he was entitled to an evidentiary hearing.  The COA affirms.

Michael Chadwick Smith v. Kimberly Marie Mull –  visitation exchange location/no alcohol provision of divorce decree – Mike and Kim married in 2005, had two children, and were divorced in 2011.  A year later Kim moved to Atlanta. They  modified their visitation agreement to meet in Leeds, Alabama.  But Mike often ended up in Kentucky for work and leisure and the parties could not agree on a locale to exchange the kids.  Mike petitioned the chancery court to modify the exchange location.  Kim counterclaimed asserting that Mike was in contempt of the divorce decree after bringing the children to a private neighborhood cookout where others were consuming
alcohol.   The chancellor found that modification of the exchange point was
unnecessary based upon the evidence presented and found that  Mike had violated the no-alcohol provision of the divorce decree by having the children in the presence
of others using alcohol when he knew beforehand that alcohol would be served. The
chancellor awarded Kim $425 in attorneys’ fees for the contempt complaint against Mike.  Mike appeals and the COA affirms.

Benjamin McCadney  v. State of Mississippi –  Lindsey brief – In the early hours of a day in April of  2014, Moses Kizart left a club and stopped behind a  liquor store to use the bathroom.  He was accosted by a man wearing a  bandana mask  who shot him in the stomach.  Kizart grabbed for the mask and was able to see his assailant’s face.  It was the face of a man he recognized riding around the area in a white station wagon. Benjamin McCadney was convicted of aggravated assault with a firearm enhancement.  On appeal his attorney files a Lindsey brief attesting that no issues were found.  The COA agrees and affirms.

Zachary Dakota Weber v. Krystal Bryant Webercustody –  Zachary and Krystal  had a son together in December 2011.  At the time Dakota was eighteen years old and Krystal
was seventeen and they lived with Dakota’s mother and stepfather in Petal.  They married three years later but separated eight months after that. They agreed to an
irreconcilable-differences divorce. After a trial, the chancellor awarded Krystal
physical custody of the minor child, with both parties to have legal custody and
ordered Dakota to pay $300 per month in child support. Dakota appeals and the COA affirms.

Arthur Dewayne Black v. Alicia Powell Black –  prenup – Arthur and Alicia were married in  September of 2003. A few days before they  executed a prenuptial agreement.  They had two children.  They separated in  May of 2013 and Alicia filed for divorce a year later.  Alicia challenged the validity of the prenup but the chancellor held that it was valid.  After a trial, Alicia was awarded a divorce on the ground of Arthur’s admitted adultery. The parties were granted joint legal custody of the children.  Alicia received physical custody and Arthur was ordered  child support of $6,500 per month, $36,000 annually towards the children’s private-school tuition, etc.  The chancellor determined that the marital estate possessed a total equity value of $2,211,050.75, and he divided the marital estate in accordance with the terms of the prenuptial agreement. Thus, Alicia was awarded $668,183.52, with the remainder of the estate to be awarded to Arthur. The chancellor also awarded Alicia $40,000 in attorney’s fees in light of her inability to pay. Both filed motions for reconsideration.   The parties agreed to alter visitation privileges and reopened the record as to the income tax returns.  Arthur appeals  arguing that the chancellor erred in failing to award him sanctions and attorney’s fees for defending Alicia’s attacks on the validity of the prenuptial agreement.  “The chancellor found Alicia’s attacks on the validity of the photocopied duplicates were neither frivolous nor without substantial justification.”  The COA finds no error.  Arthur also argues that in dividing the marital estate, the chancellor omitted a $159,700 line of credit jointly owed by the parties and secured by Arthur’s premarital home.   Arthur argues the failure to include – and divide – this marital debt in accordance with the terms of the premarital agreement was erroneous. The COA agrees and reverses and remands on this and several other issues.

 

L.H. Manning, Virginia Warren, John Henry Manning, Geannie Jones, Nikiesha Funchess, and Eva Manning v. Robert Perry and Paige Perry –   Henry and Addie Manning owned an eighty-six acre parcel in Pike County.  They deeded it to their son Ed in 1994.  Following Ed’s  death in 2011, his widow  Joan Manning  sold a  seventy-eight acre parcel to Robert and Paige Perry in a transaction financed by the Pike National Bank.   Ed’s siblings sued claiming that Ed was only the trustee of their parents’ former land.  The Perrys and the Bank moved for summary judgment on the grounds that they  were bona fide purchasers for value without notice.  The Mannings appealed and the COA affirms.

Sonja Renee Baggett v. James Darrell Baggettdenying divorce of grounds of cruel and inhumane treatment and/or habitual drunkenness – James and Renee married in 1998.   At the time they married, Renee knew that James drank and over the years after they married, they separated on occasion.  In 2015, Renee filed for divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness.  James counterclaimed but later withdrew his counterclaim for divorce.  After a trial, the chancellor refused to grant Renee a divorce  on the basis that Renee only presented one incident of domestic violence occurring over ten years prior to the filing of her  complaint, which was insufficient to constitute habitual cruel and inhuman treatment. Further, the chancellor ruled that Renee had only presented evidence that James habitually drank, not that he was habitually drunk, which was insufficient to constitute habitual drunkenness.  She appeals arguing that it was error for the court to not allow her to introduce the deposition of her doctor.  Renee was noticed the deposition of her doctor on January 25, 2016, for a deposition to take place the next day.  Opposing counsel was unable to attend on such short notice.  The chancellor therefore denied Renee’s request to admit the deposition.  The COA affirms.

The Court denies rehearing in but substitutes its opinion in Janice Loden Sullivan v. James Wayne Sullivan – necessity of findings in dividing marital assets – Janice and Wayne separated in 2014 after 16 years of marriage.  They agreed to an ID divorce.  Wayne was retired as a dean at Itawamba Community College and was making $8,208.22 per month in state retirement and $6,900 doing contract work.   Janice was a registered nurse but quit working in 2012 due to health issues. Janice received $1,333 per month from a trust established by her deceased mother. And there was evidence that Janice’s father had regularly been giving Janice as much as $29,000 a year.  They owned a home worth  $220,000 and a savings account  containing approximately $341,329. Apparently the chancellor made an oral ruling over the phone.  Then there was a judgment of divorce awarding  the marital home to Janice, dividing  the savings account, dividing  the marital assets, and awarding Janice $1,360 per month from Wayne’s state retirement “for up to twelve years effective September 1, 2015.”  Janice appealed arguing the chancellor failed to make Ferguson findings.  While the chancellor need not make “an explicit factor-by-factor analysis”,  “the record here simply does not show that the chancellor adequately considered or applied the factors. Thus, we must reverse and remand for a proper application of the Ferguson factors.”

 

 

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