Decisions – COA – 1/9/18

In the Matter of the Conservatorship of Charles Addison: Cynthia Shenell Jackson a/k/a Cynthia Addison Jackson v. Doug Touchstone, Conservator, William Addison a/k/a Willie Addison, and Aubrey Addison –  joint ownership of bank accounts and CDs – Charlie Addison and his wife Margie Mae, had three children:  Aubrey,  Willie, and Cynthia. For many years before he died, Charlie had various bank accounts and CDS that he  had Cynthia named a joint owner of. In 2010, Charlie executed a durable general power of attorney designating Cynthia as his attorney-in-fact;  a deed conveying 140 acres in Amite County to Cynthia;  (3) and a will that was sealed.  In 2011, Charlie was deteriorating.   Cynthia  moved over $204,000 from joint accounts owned by
her and Charlie to her personal bank account to keep Willie or others from  taking advantage of her father. Later that year, Willie filed a petition to have a conservator appointed for their father.  Cynthia agreed that a conservator should be appointed and requested that it be her. Willie and Aubrey opposed appointing Cynthia claiming that she exercised undue influence. The court appointed the chancery clerk as conservator over Charlie’s estate and Cynthia over his person. The court also ordered that Cynthia return the $204,000. Cynthia appealed the order wherein she was not appointed conservator over Charlie’s estate. Meanwhile, Charlie died and the parties agreed to dismiss the appeal.  In the closing of the estate, Cynthia requested that the money in the joint bank accounts and CDs be returned to her. The chancellor refused finding that he had ordered them returned to the estate and that Cynthia had appealed that order but dismissed the appeal.   Cynthia appealed that order.  The COA reverses and renders.

We hold that Cynthia was a joint owner with rights of survivorship of the funds held
in the joint accounts and CDs, that her interest in the funds was not destroyed by their transfer to conservatorship accounts, and that she did not abandon her claim to the funds when she agreed to dismiss her prior appeal as moot.

Alvin Green v. State of Mississippi –  Lindsey brief – Alvin Green was convicted of two counts of armed robbery, conspiracy to commit armed robbery, aggravated assault, and two counts of possession of a firearm by a convicted felon. Green  filed
a pro se supplemental brief that  challenged the weight and/or sufficiency of the evidence and/or to allege ineffective assistance of trial counsel. The COA affirms.

Tracey Carol Gaddis v. Bennie Richard Wilkerson, Jr. –  child custody schedule modification – Richard and Tracey married in 2002, had one child, Logan born in 2005 and divorced in 2008.  They were granted joint legal and physical custody of their son.
Tracey had custody during the weekdays, except for Tuesday from 3 p.m. to 8 p.m.   Richard would have Logan every other weekend and at the opening of deer season, beginning at age five. Holidays and special occasions were divided  between the parties.
In 2013, they amended the schedule to grant Richard and Tracey equal time with Logan during the summer on a week-on, weekoff basis. The agreement further stated that Richard would have Logan every other Wednesday from 5:30-7:30 p.m. (for church services and related activities) and every first,  third, and fifth weekend, from Thursday after school until the following Monday.  In 2016 Richard sought sole physical custody or  equal time with Logan on a year-round basis during the school year.   The court denied Richard’s request for sole custody and his request for equal time during the school year.  He did modify the visitation schedule changing Richard’s alternating Wednesday evening custodial periods, which had ended at 8 p.m., to overnight. He also directed that spring break would be divided, with alternating four and three day periods for each of the parents. The chancellor also found that Tracey should be allowed to see Logan on his birthday, if the birthday falls within Richard’s custodial period. Tracey appealed.  The COA affirms. “We find the chancellor’s minor changes to the custody schedule supported by the record. Further, the chancellor’s decision to award Richard half of Logan’s spring break served the purpose of joint custody – to award each custodial parent equal and ‘significant periods of physical custody.'”

Shirley Bass Hearn v. Bayview Loan Servicing, LLCsummary judgment briefing – Bayview sued to eject Shirley Hearn. The trial court granted Bayview’s motion for summary judgment. On appeal Hearn complains for the first time that it was error to grant summary judgment where Bayview filed a  “brief in support” rather than a motion for summary judgment. “We conclude that Hearn waived the issue by filing a response without complaining of the sufficiency of the motion.”

Nathaniel McKeithan  v. State of Mississippi –   air rifle as deadly weapon – McKeithan was convicted of the burglary of a dwelling,  the armed robbery of Charles Barge and the  armed robbery of Inez Barge.  The Barges were accosted by two masked men as they entered their house one evening in Macon.  The men stole a debit card, jewelry, an air rifle, a phone and cash.  Surveillance video showed McKeithan trying to use the debit card at an ATM. Later that night McKeithan attempted to prepay for $10 worth of gas at Sam’s G&G, a convenience store whose owner knew Charles and refused to give the card back to  McKeithan and  asked McKeithan how he had obtained it. McKeithan acted nervous and stated that a man outside the convenience store had given him the debit card.  When McKeithan was arrested, Charles recognized him as the same man t hat had come up to him in his yard earlier that day and asked for directions. On appeal McKeithan argues that the evidence was insufficient to show that he robbed Inez by putting her in fear for her life.  Inez suffered from Alzheimers and did not testify.  Given the facts of the robbery, the assailants holding an air rifle to Charles’ head, throwing an afghan over both of their heads, and Charles’ description of Inez’s fear during and afterwards, there was sufficient evidence to support the conviction of an armed robbery against Inez Barge. He also argues that the court erred in refusing a jury instruction regarding an air rifle as a deadly weapon. The COA finds no error in that this was covered by other instructions.  The COA affirms.

Samuel Andrew Johnson and Kathy Johnson v. Wythe Rhett, in His Individual Capacitystatute of limitations – In November 2005, the Johnsons contracted with Rhett Construction LLC, to serve as the general contractor over certain renovations and new construction to their home. They moved into the home in November 2007.  In August 2010, the Johnsons filed suit against Rhett, d/b/a Rhett Construction, for breach of contract.  Rhett moved to  dismiss the claims against him in his individual capacity, and the trial court granted his motion.   When the  Johnsons attempted to amend their complaint, it was stricken because they failed to seek leave to amend.  So in September 2013, they filed a new suit against Rhett in his individual capacity.  This time the court dismissed it based on the statute of limitations.  The Johnsons appealed and the COA affirms.

Daniel W. Michael v. Kellie Michelle Smith – .visitation/travel costs –  Michael and Kellie had a child, E.M.S.,  in 2013. They never married.  In  2015, Smith filed a petition to adjudicate paternity and establish custody, support, and visitation.  In July  2015, the chancellor entered a temporary order granting Smith legal and physical custody of E.M.S. and giving  Michael  two-hour supervised visitations twice each week in Laurel. After a trial,  Smith was granted legal and physical custody of E.M.S., and a progressive
visitation schedule was set for Michael.  On appeal, Michael argues the chancellor erred by not granting standard visitation of Friday through Sunday, and by imposing on him all costs and travel associated with the visitation (Michael had moved to Louisiana). Kelli  cross-appeals and argues that because Michael’s post-trial motion was untimely (filed 13 days after the court’s judgment; the court ended up amending the judgment), the chancellor lacked jurisdiction to rule on the motion and his appeal should therefore be dismissed, as it stems from a void judgment. The COA finds no merit in Kellie’s argument. “The record shows Michael’s Rule 60(b) motion was filed within a reasonable time, as it was filed thirteen days after the final judgment. Since Michael’s Rule 60(b) motion was timely filed, the chancellor had jurisdiction to consider it and thereafter enter the amended judgment.”  The COA affirms the decision that Michael pay costs associated with visitation but reverses the restriction on Michael’s visitation.

 “[A]bsent evidence that the child [would be] harmed by standard visitation, the
chancellor may not impose limitations on the visitation privileges of the non[-]custodial parent.” Fields, 830 So. 2d at 1268 (¶8). Here, as in Fields, there is no evidence to support the chancellor’s restrictions on Michael’s visitation with E.M.S. See id. at 1269 (¶12). Moreover, there is no evidence that E.M.S. would be harmed by standard visitation. Accordingly, we find the chancellor abused his discretion in restricting Michael’s visitation, and revese and remand with instructions to award Michael standard visitation with E.M.S., to include Fridays.

Reinaldo Bacallao v. Madison County, Mississippi alleged legal malpractice by public defender –  In 2010,  Bacallao and his companion, Oneida Gamez, were indicted  on charges of arson, conspiracy to commit arson, and insurance fraud.  Bacallao and Gamez  retained Michael J. Malouf Jr. to defend them but he later withdrew because they were indigent and had made no payments toward their representation.  The court allowed him to withdraw and appointed Lisa Ross. Bacallao’s case was scheduled for a status conference on January 31, 2011. Ross testified that  three days prior, she called
Bacallao twiceand left a voicemail  to inform him that his presence was required at the status conference and he would be jailed if he did not appear. When Bacallao failed to appear, a bench warrant was issued and he was jailed.   His family rehired Malouf who obtained bond, hired an arson expert, and got the charges nolle prossed. Bacallao then sued Madison County and Lisa Ross for legal malpractice. After a trial, the court found that Bacallao failed to prove his claims. Baccallao appealed from county to circuit court which affirmed. He then appealed to the Supreme Court. The COA affirms.

Pro se PCR appeals affirmed:

Henry Gibbs, Jr.  v. State of Mississippi

Darrell W. Phillips  v. State of Mississippi

Jack Patrickson  v. State of Mississippi

Eric Denorris Kennedy  v. State of Mississippi

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