Decisions – COA – Nov. 14, 2017

In the Matter of the Adoption of the Minor Child Described in the Petition: J.A.G. and Wife, S.G. v. C.T. and B.T. –  adoption –  T.G. and A.H. had a daughter, G.L., in June 2012.  At the time they living in a FEMA trailer with A.H.’s mother, M.H. (paternal grandmother), in Picayune, Mississippi. G.L was taken from the home in January 2013 when all three adults were found unconscious from ingesting  oxycodone.  In  February she was placed with her grandparents.  Family friend B.T. was approached about being a foster for G.L.  In July 2013, G.L. began spending the night with B.T. and C.T.  G.L. permanently moved in with them in October 2013. In November 2014, the grandparents filed a petition for custody, termination of parental rights, and adoption of G.L. The foster parents filed a motion for leave to intervene and a petition for adoption.  The court  terminated  T.G. and A.H.’s parental rights.  “Using the Albright factors, the totality of the circumstances, and considering the best interest of G.L., the chancellor granted the foster parents’ petition to adopt G.L. The chancellor also strongly recommended that the foster parents allow the grandparents to visit G.L., even though the court was without authority to require the foster parents to permit visitation.”  The grandparents appealed arguing that the chancellor failed to take into account the  “power of their familial bond.”  The COA disagrees and affirms.

We are of the opinion that the chancellor adequately addressed the grandparents’
relationship as G.L.’s biological maternal grandparents. We note that the grandparents’ kinship to G.L. does not require that they are given a preference for custodial or adoption purposes. The grandparents are the maternal grandparents of G.L.—not her biological parents. This Court has previously held that “we are aware of no hard and fast rule that gives preference in a custody dispute such as this to any particular litigant based solely on  the degree of kinship.” Loomis v. Bugg, 872 So. 2d 694, 698 (¶17) (Miss. Ct. App. 2004). Therefore, this issue is without merit.

Delbert Ray Alexander v. Billy Joe Pitts, Jr. –  boundary dispute/sanctions for frivolous appeal – Pitts purchased property from a person who acquired it via a tax sale in 2001 and then successfully quieted title. Pitts  then ended up in a boundary dispute with his neighbor, Alexander, who filed suit for an injunction to prevent Pitts from trespassing on a common boundary. Pitts moved to dismiss arguing that any claim that Alexander had to the boundary via adverse possession lapsed when the property was sold in the tax sale. The court denied the request for an injunction.  The chancellor dismissed the case.  On appeal Alexander argues that he should have been given notice of the tax sale. The COA affirms.  Pitt asked for attorneys fees for a frivolous appeal.  The COA grants the motion on the grounds that the appeal had nothing to do with the Alexander’s original request for a preliminary injunction.  It remands to the trial court for a determination of attorneys fees and costs to be awarded Pitts.

Evelyn Pennington v. William David Crawford, Ricky Ware, and State Farm Auto Insurance Co. – dismissal for failure to serve process within 120 days – On February 9, 2011, Crawford rear-ended Pennington’s vehicle on Feb. 9, 2011.  Crawford was in a  vehicle belonging to his stepfather, Ware. She filed a  complaint on February 6, 2014 and had summonses issued 118 days later (after negotiations with State Farm fell through).   On June 26, 2014, Crawford and Ware moved to dismiss.   Pennington responded and requested an extension of time to serve process. She attached an affidavit from a process server who stated that he made several attempts to serve both Crawford and Ware at the address in the police report.  That he then found another address and drove there only to find  a man and a woman acting “suspiciously” in the garage.  The man darted inside. The woman said she was Crawford’s sister but that she did not know where Crawford was or when he would return.  Service was eventually perfected on Crawford on August 7, 2014, and Ware on August 9, 2014. The hearing on the motion to dismiss took place in January 2015.  The Madison County Court dismissed the case finding that there was not good cause for the failure to serve.  On appeal to circuit, the court affirmed.  The COA also affirms.

Jamie Lynn Orr v. Mallory Morgan, The Buckle, Inc. and Nason Stephensmalicious prosecution –  Orr had recently started working at The Buckle in Northpark Mall.  Prior to closing, Orr was using the store’s iPad at the register counter. Orr took the iPad to the
storeroom (out of view of the security camera) and returned to the front of the store with a large purse. She discussed with one of the managers Nason Stephens about  needing more hours.  She then gave her  two-week notice.  The next day no one could find the i pad.   The Buckle’s corporate office told manager Mallory Morgan to file a report with the local police.  The police requested that  Stephens sign an affidavit against Orr for petit larceny.  Orr was arrested but eventually acquitted.  She then filed suit for malicious prosecution, false arrest, false imprisonment, civil conspiracy, negligence, intentional
infliction of emotional distress, and negligent infliction of emotional distress. The court granted summary judgment for the defendants.   On appeal the COA finds that it was error to grant summary judgment on the malicious prosecution charge since “the only basis for the charge of petit larceny is that Orr was the last person to be seen using the iPad.”  It was also error to grant summary judgment as to the issue of punitive damages as well as false arrest and false imprisonment. Summary judgment was correct on intentional infliction of emotional distress, negligence and negligent infliction of emotional distress.

Spencer Presley v. State of Mississippi Lindsey brief – Spencer Presley was convicted of burglary of an automobile and sentenced to seven years without parole (as an habitual). His lawyer attested that he could find no errors to brief as per  Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005).  The COA agrees and affirms.





Pro se PCR appeals affirmed:

Raheem Berry v. State of Mississippi  

Dana Easterling  v. State of Mississippi


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