Decisions – COA – 2/6/18

Michael Barnes v. LFI Fort Pierce, Inc., Labor Finders and ACE American Insurance Companyworkers comp – In March 2015, Barnes was a temp worker employed by Labor Finders. He was sent to work on a construction site.  He claims that he was taking a sink up some stairs when he fell backwards.  No one saw his fall and he did not tell anyone. He worked the whole day and when he was paid, the signed an acknowledgement that he had not sustained any work-related injuries on that day.
The following day, Barnes experienced lumbar pain and stated that he could not walk. His son  drove him to the job site to report the injury and was taken to a doctor who diagnosed Barnes with narrowing L4-5 arthritic changes.  Labor Finders began to pay Barnes temporary benefits for his injury but discontinued them after it discovered that Barnes did not disclose a back surgery that he had twenty years prior to the date of his injury.  Barnes filed a petition to controvert.  The Commission found that Barnes failed to prove he suffered a compensable injury.  Barnes appealed. The COA affirms.

Spartacus Alford v. State of Mississippiprior bad acts – Spartacus Alford was convicted of two counts of sexual battery, one count of attempted sexual battery, and one count of touching a child for lustful purposes all involving his six-year-old niece.  On appeal he argues that it was error to admit testimony from three other young relatives that he had sexually abused them.  He also argues that it was error to use a screen to block his view of the victim. The COA affirms.

In the Matter of the Estate of Brenda Louise Bargas Flowers: Claire C. Flowers and Brenda Jane Flowers Paixao v. The Estate of Brenda Louise Bargas Flowers, through its Executor, Knox Lemee Flowers, Cecil C. Lang and Linda S. Langestate accounting – Richard and Brenda Flowers had three children:  Knox Lemee’, Claire and Jane. In 2004, Claire gave birth to a son, D.A. Richard and Brenda adopted D.A. in 2005.  Both  Richard and Brenda passed away on 2006. Brenda’s will appointed Knox as her  executor.  The will set up a trust for D.A. and his descendants. In 2015 Claire filed for an accounting and sued the various attorneys who had worked in the estate. The chancellor denied relief. Claire appealed. On appeal the COA affirms except to the denial of an accounting.

Kimberlana Elkins v. Robert D. Elkins –  contempt – Robert and Kimberlana were married in 1999, had two children, separated in 2010, and filed for divorce. In 2011, the court gave temporary custody to Kimberlana along with the marital home.   Robert was ordered to pay $350 in monthly temporary child support, the children’s medical expenses, plus the mortgage, maintenance, and expenses for the marital residence.  A few months later  Kimberlana filed a motion for contempt of  court claiming Robert was $3,150 in arrears for child support and $8,659.95 in arrears for the mortgage and home maintenance.  In 2012,  Kimberlana filed two more motions for  contempt, reasserting her argument that Robert failed to pay the mortgage and temporary child support.  In 2013,  the chancery court found Robert to be in contempt of the chancery court’s temporary order  “but not in wilful and contumacious contempt” because of an inability to pay.  The court granted an equitable lien on the marital residence for the total  arrearage of $42,604.47. He  modified the child support to $415.15 per month, making it retroactive to the date of the filing of the motion for emergency relief.  In 2015 the court granted Kimberlana a divorce on the ground of adultery and  ordered Robert to pay $381 in child support.  As to Kimberlana’s motion for contempt, the court determined that the total arrearage owed by Robert was $65,895.96. He ordered Robert to pay $250 per month for any arrearage due after the proceeds of the sale of the house had been applied to the arrearage.  Robert moved to reconsider the awards of contempt and attorney’s fees. The court  granted Robert’s motion in part, deducting $42,604.47 from the arrearage owed byRobert for support. However, it denied the motion with respect to the remaining arrearage ($23,291.49) and the award of $3,700 in attorney’s fees to Kimberlana.  Kimerlana filed a pro se appeal. The COA affirms.

Otis Fipps v. Greenwood Leflore Hospitalmedical malpractice – In June  2012, Fipps underwent an esophageal dilatation to treat difficult swallowing.  He claimed this  procedure caused a perforation of his esophagus, leading to further medical
complications including a neck abscess and two additional surgeries.  Fipps sued.  As ann expert he hired a general surgeon who testified in a trial dep. that Fipps’ complaints did not indicate the need for a dilation. Prior to trial the hospital moved to preclude the surgeon’s deposition testimony on the grounds that he was  not competent to testify since he did not state that he was familiar with the standard of care for a gastroenterologist.  The trial court granted the motion and dismissed Fipps’ lawsuit after he was unable to present expert testimony.  On appeal, the COA affirms.

  Although Dr. Stokes had some familiarity with the procedure, he did not indicate sufficient familiarity with the standard of care to which a gastroenterologist is held—Dr. Stokes simply opined as to what he would have done as a general surgeon in a similar situation. To reiterate the trial court’s finding, Dr. Stokes “was never asked and did not testify that he was familiar with the standard of care in the medical speciality of gastroenterology as to when and whether the dilatation procedures should be performed.” “The rule is that the expert must exercise the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Poole ex rel. Poole v. Avara, 908 So. 2d 716, 724 (¶16) (Miss. 2005). Absent expert testimony, there is no triable issue of fact regarding the alleged medical malpractice of Dr. Calvit. This issue is without merit.

Brown Lakeland Properties and Charles H. Brown v. Renasant Bank –  deficiency judgment after foreclosure  – In November 2012, BLP executed two commercial promissory notes to Renasant Bank for the loan amounts of $2,880,320.87 and $906,786.40. The first note  was secured by a 635-acre parcel of land in Yazoo County, Mississippi, and a 2.93-acre parcel of property in Brandon, Mississippi, on which a bowling alley sat. The second note  was secured by a 6.75-acre parcel of land on Old Fannin Road.  BLP defaulted on both loans,  Renasant foreclosed on the properties that had been pledged as security under the notes and purchased all three parcels at a public foreclosure sale – the 2.93-acre parcel for $778,100, the 6.75- acre parcel for $780,000, and the  635-acre parcel for $900,000.  Renascent then sold the properties.   After properties were sold  and the excess proceeds  applied as credits to the notes, BLP and Brown remained indebted under the notes and continuing guaranties for the amount of $1,375,824.69. In July 2015, Renasant filed a complaint against BLP and Brown  seeking this amount and  attorneys’ fees and costs. The trial court granted  Renasant’s motion for summary judgment and ordered  BLP and Brown to pay  $1,416,722.86.  BLP and Brown appealed. The COA affirms.


Willie Carl Pickett and Jacarrus  Picket v. State of Mississippi –  amendment to indictment –  Decarlos Clark worked as garbage man in Meridian, Mississippi.  In October  2013, he was assigned a route in which lived some men that Clark had had a dispute with.  While on the route, the garbage truck was approached by Willie and Jacarrus Pickett  who shot some 15 rounds at Clark. Both were convicted of attempted murder.  On appeal they argue that it was error to allow the state to amend the indictment the second day of trial so that it stated that the defendants shot at Clark rather than that they shot Clark.  The COA finds no error. “The amendment to the indictment reflected the language used at trial and did not prejudice the defense. The amendment did not change the nature of the charges and, thus, did not deprive Jacarrus or Willie of a fair opportunity to present their defense. Also, Jacarrus and Willie cannot claim unfair surprise, as they knew at all times that Clark was not actually shot, only shot at, and that this was the basis for the charges.” They also attack the sufficiency of the amended indictment, the sufficiency of the jury instruction on attempted murder, and the constitutionality of the amended murder statute. The COA affirms.

William Tracy Dixon v. Sandra Michelle Dixonmodification of alimony and child support – Michelle and Tracy married in 1992 and had twin girls, Ashton and Amanda, in 1996. They divorced in 2012.   Tracy was ordered to pay child support of $770 per month and  $2,000 per month in permanent periodic alimony. In 2014 Tracy moved to modify his child support and alimony obligations. He claimed that  Amanda was cohabiting with her boyfriend and, thus, emancipated,  Ashton was attending community college on a softball scholarship, and Michelle’s income had increased so that she could support herself. The chancellor denied relief. The COA affirms.

Pro se PCR appeals affirmed:

Jerold Wayne Smith  v. State of Mississippi

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