Decisions – MSSC – 1/1/18

John Norman Cole  v. State of Mississippi –  Terry stop – In August of 2015, MBN received information that several people were outside of a Lincoln County house selling drugs (the same call from Jackson would be met with “what do you want me to do about it?”- I’ve tried).  Agents went to the scene and saw six men sitting near the street.  Cole was one of them. One man put something inside of his shirt.  When asked to produce the object, the man revealed a joint.  The same man had his foot on a CD case on the ground which contained marijuana. Two other people had marijuana and one of them had a gun.  When agents turned to frisk Cole, he ran throwing down a white hand towel as he did.  Officers found near the towel a handgun and marijuana. After Cole was arrested he allegedly provided a  statement in which he admitted selling the bags of marijuana for $10 each, and that he recently had purchased the pistol found at the scene for $120.  There was however, no recording of the statement, written or otherwise. or even so much as a report of the statement.  Cole was convicted of possession with intent and felon in possession.   On appeal he argues that the trial court erred in denying his motion to suppress. As for the investigatory detention of Cole, the court finds that the anonymous tip alone was not sufficient but when coupled with what happened at the scene before officers decided to frisk Cole, there was sufficient evidence to conduct a Terry stop. The search conducted was not excessive considering what the officers knew. The MSSC affirms.

Nolana Thornton Griffin v. Chad Griffinvisitation with parent in prison – Nolana and Chad Griffin married in 2001 and had four daughters.  In 2014, Nolana, a  high school teacher,  confessed to Chad, an MBN officer,  that she had engaged in sexual relationships with four of her teenaged students. Chad turned her in.   Nolana pled guilty to four counts of sexual battery of a minor by a person of trust or authority and sentenced to serve 15 years. In 2016, Chad starting a romantic relationship with his daughters’ homeschool teacher and filed for divorce.   Chad was awarded physical and
legal custody of the four girls, who were now fifteen, twelve, and seven years old (twins). The chancellor refused to order that Nolana be allowed visitation with her daughters in prison. Nolana appealed and the MSSC affirms.

Applying this holding, we find no reversible error in the chancellor’s decision.
Contrary to Nolana’s assertion, the chancellor did not base his visitation decision solely on the fact Nolana is incarcerated. Instead, with the “paramount concern” in mind, he found that, based on the circumstances, the presumption in favor of visitation had been overcome and that court-ordered, every-other-week visitation with Nolana was not in the children’s best interest. He supported his decision with substantial evidence that judge-mandated visitation may be physically and emotionally harmful to the girls. The chancellor was swayed by a variety of factors. One was the physical distance the girls would have to travel twice each month (eight to nine hours round trip). Others included the requirement of a pat-down physical search, the location of the jail visits (in a communal room where potentially violent offenders were also visiting family), the oldest daughter’s social disability (Asperger’s Syndrome), and the fact Nolana’s daughters had not seen their mother since her arrest and were unaware of her sexual ventures leading to her arrest and conviction, much less that she was even incarcerated.

Jason Hall  v. State of Mississippiattorneys fees in wrongful conviction case –  Hall’s  conviction of accessory after the fact was reversed by the MSSC in 2013.  .
Hall v. State. (He was indicted for burglary.  The state got an instruction for accessory after the fact – a crime for which Hall had not been indicted.  The jury acquitted him of burglary but convicted him of accessory. The Court reversed because he had never been indicted for accessory after the fact).  Hall then sued under the Wrongful Conviction and Imprisonment Act, MCA. 11-44-7.  The state was granted summary judgment and Hall appealed and won.  On remand, Hall  was awarded $126,507.00.   Hall’s attorneys were granted $31,626.75–calculated at 25% of the amount awarded to Hall. Hall appealed arguing that he was entitled to 10% for  preparing and filing the claim, 20% for
litigating the claim if it is contested by the Attorney General, and 25% if the claim is appealed.  The MSSC holds that the statute is unambiguous and Hall was entitled to 25%.

Sharkey Issaquena Community Hospital v. Alan Anderson and Linda Anderson –  additional time for discovery – The Anderson filed a lawsuit against the hospital alleging that when  Alan Anderson presented with the symptoms of a stroke, the hospital failed to diagnose and admit him.   The Hospital moved for summary judgment arguing that the Andersons did not have proof that it breached the standard of care.   On that same day, the Andersons filed their belated expert designation as well as a motion for additional time to file their expert designation (the judge had entered a scheduling order and the time for designating experts had lapsed).  “The trial court granted the Andersons’ motion for continuance and denied both SICH’s motion to strike expert designation and its motion for summary judgment, holding that the denial of summary judgment was ‘without prejudice to its being renewed at a later date.’”  The Hospital requested an interloc. appeal which the Court granted. In December, the Court affirmed finding the the trial court did not abuse its discretion in granting the continuance. The Court granted rehearing and finds that the vote was 4-4 and, thus, the lower court should have been affirmed for that reason.

 

 

 

 

 

Susan Harris v. Thomas L. Harrissocial security does not automatically reduce alimony – Susan and Thomas married in 1979 and divorced in 2011 when Leon was 61 and Susan 60.   Leon agreed to pay $2,755 per month to Susan as periodic alimony. The Property Settlement Agreement did not address any contingency with respect to the alimony other than that it would end at Susan’s remarriage or death. After the divorce, when Susan became eligible for Social Security, she filed for and obtained derivative Social Security retirement benefits in the amount of $1,035 per month, based on Leon’s income.  In 2015, Susan filed a complaint to review the health provision of the Property Settlement Agreement. Leon filed a  counterclaim to reduce  his alimony payments in light of the fact that Susan had begun drawing Social Security benefits based on his earnings record. Leon maintained that he should be required to pay Susan only an additional $1,720 per month, since she was already drawing $1,035 per month from Social Security. The trial court  modified the PSA by lowering Leon’s alimony payments from $2,755 to $1,720 a month.  Susan appealed.  The Court of Appeals affirmed the trial court’s decision, holding that a material change in circumstances need not be shown and assessing all costs of the appeal to Susan. The MSSC granted cert. and reverses and remands. “Social Security benefits derived from the other spouse’s income do not constitute a special circumstance triggering an automatic reduction in alimony. When a spouse receives Social Security benefits derived from the other spouse’s income, the trial court must weigh all the circumstances of both parties and find that an unforseen material change in circumstances occurred to modify alimony.”  “To the extent that Spalding states otherwise, it is overruled.” The court reverses and remands for “the trial court to perform the proper analysis in light of our clarification that no automatic reduction in alimony is triggered by Social Security benefits derived from the alimony-paying spouse’s income. To be clear, the instant holding separates Social Security benefits that affect alimony from Social Security benefits that affect child support, and the caselaw regarding Social Security benefits that affect child support is not changed
by this holding.”

City of Jackson, Mississippi v. Ben Allen, Individually and in His Capacity as President of Downtown Jackson Partners, Inc.zoning – This case involves  a tiny parcel of land on the NE corner of State and South Streets. It was once used as a gas station and then a used car lot. In 2002, the City was interested in  a plan to develop  several blocks of this area as a  mixed -use residential and light commercial use called Old Capital Green.   The City re-zoned the area as OCG Mixed Use District (MUD). The lot at issue was allowed to continue to operate as a car lot (it was  “grandfathered”) but the owner ceased using it as a car lot in  2013.  The project never took off. The zoning, however,  remained Mixed Use.   The current owner of the property, James Miles LLC, and the lessor, Maurice Hogan, petitioned the City to have the lot  re-zoned  C-3 classification  to again allow for a car lot. The Planning Board said no but the lot owner appealed and the City Council voted to allow the rezoning.   It was only then that Ben Allen and Downtown Jackson Partners got involved and they appealed the City’s decision to Circuit Court.  The City moved to dismiss arguing that Allen and DJP lacked standing.  The court sided with Allen and DJP reversing the City’s decision to rezone the property. The City appealed. The MSSC affirms.

 

Jackson HMA, LLC d/b/a Merit Health Central f/d/b/a Central Mississippi Medical Center v. Evelyn Harris, as the Administratrix and Personal Representative of the Estate of Melvin Harris –  medical malpractice – In June of  2014, Melvin Harris was admitted to the Central Mississippi Medical Center for an altered mental state with combativeness. Mr. Harris had previously been diagnosed with advanced dementia.  At some point, a nurse found him sitting on  his bathroom floor with a laceration to his head. Mr. Harris was sent to the ER  and received staples.  His family sued.  The hospital moved for summary judgment which was denied.  It then filed an interlocutory appeal which was granted. The MSSC reverses and renders based on the plaintiff’s failure to have any expert opinion with regard to the hospital’s negligence.

 

One thought on “Decisions – MSSC – 1/1/18

  1. Thanks for all your hard work Jane. You make these legal decisions easy to read for us non-lawyers. I love your humorous comments throughout the decisions such as the one above about calling the MBN on some folks in Jackson selling drugs. Sad but funny.

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