Decisions – COA – 4/3/18

In Re Estate of Rae C. Saget: Kappi Saget Jeffers v. Korri Sagetundue influence –  Rae Saget died in 2014. She had two daughters: Kappi and Korri.  When she died she had four investment accounts.  When originally opened, the accounts named both daughters as equal beneficiaries upon Rae’s death. Starting in 2006, Kerry Ricks at Morgan Stanley assisted Rae with her accounts. A year before she died, Rae had Ricks remove Kappi as a beneficiary from all four Morgan Stanley accounts.  When Rae’s will was probated, Kappi challenged the will and the removal of her name as a beneficiary of the investment accounts on the grounds of undue influence.  The issue of the will was tried to a jury. That trial ended in a mistrial. The chancellor ruled against Kappi on the issue of undue influence and the investment accounts.  Kappi appealed. The COA affirms. “The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae.”  While Rae was in bad health, there was no evidence that she was taken care of by others of that she was physically or mentally weak, etc.

Majeedah Sharrieff, Lynnese Butler, the Heirs and Estate of Naomi Brown, Nutrosalyn Butler and Miqual Brown v. DBA Automotive Two, LLC d/b/a Legacy C-Dtire separation –    In 2007,  Sharrieff bought a used 2003 Isuzu Ascender from Legacy, a used car dealership in Brookhaven. Legacy had replaced the two front tires with new ones.   Sharrief drove 13,000 limes when in May 2009, he was traveling on I-55 North in Jackson near McDowell Road when the Isuzu’s rear left tire experienced a complete tread separation. Sharrieff lost control of the vehicle, and the vehicle overturned and crashed. Sharrieff and her passengers  filed suit against the manufacturer of the tire and Legacy.  They settled their claim against Michelin but Legacy was dismissed after the court granted summary judgment for it.  Sharrief appealed arguing that newer tires should have been placed on the rear and that the placement of new tires on the front contributed to the oversteer crash.  The COA affirms.  “The circuit court reasoned that the plaintiffs presented evidence only of a ‘general recommendation in the tire industry,’ not a legal duty; and because there was no duty, there could be no breach.”

Adam Heisinger v. Priscilla Rileycustody/interference with custody – Adam and Priscilla met in Virginia while in the  military.  In 2012, after moving to Iowa, Priscilla gave birth to Adam’s daughter.  In 2013, an Iowa Court established that Adam was the father and awarded physical custody to Priscilla and visitation to Adam.  Priscilla  moved to Mississippi, and in 2015 she petitioned the court  to enroll the Iowa judgment, to suspend and/or modify Adam’s visitation, and to increase Adam’s child support. Adam moved to  modify custody, and forcontempt. Both accused the other of abuse and/or neglect and a GAL was appointed.  The chancellor found that Adam proved a material change in circumstances based on Priscilla’s interference with custody  but determined that giving custody to Adam would not be in the child’s best interest. The chancellor denied Priscilla’s petition to modify visitation and increase child support and found her  in contempt for violating prior court orders regarding Adam’s visitation, and he awarded Adam attorney’s fees.   Both parties appealed.  The COA affirms the chancellor’s award of attorney’s fees to Adam and also awards additional attorney’s fees for the appeal.  On custody the court  reverses and remands for a  new Albright analysis. The chancellor found that the emotional ties factor  favored Priscilla.  But because those ties were based on Priscilla’s interfering with Adam’s visitation, she should not benefit from her own misconduct.  On crossappeal, the court affirms the chancellor’s findings that Priscilla was in contempt and that she had not proven her allegations of neglect and abuse. “However, we reverse and remand on the issue of child support because the chancellor should have applied Mississippi law, rather than Iowa law, to Priscilla’s petition to increase the amount of support.”

Keith Higginbotham v. State of Mississippi appellate jurisdiction  –   Higginbotham was convicted of disorderly conduct and public profanity in the Louisville Municipal Court and sentenced to pay a fine of $246.25 for each charge. He appealed to the circuit court which conducted a bench trial de novo and found him guilty of both.  Higginbotham appealed. The COA dismisses the appeal finding it has no jurisdiction because the circuit court had yet to enter an order on his motion for new trial.

Patton Medical of Gulf Coast, Inc. v. Michael Relle, Individually, and Orthotic & Prosthetic Specialists, Inc.joint venture –  Patton Medical is an Ocean Springs  medical supply business that sells orthotics and prosthetics.   In 2010 its certified prosthetist quit.  Patton then entered into an agreement with O&P to treat its clients. Michael K. Relle, Sr., was the president of O&P.  The relationship lasted for less than a year after which Patton sued O&P  and Relle to recover profits owed to O&P.   The county court dismissed Relle Sr finding that O&P could not show Relle was individually liable. The court awarded Relle $7,000 in attorney fees. The jury found for Patton on its joint venture claims and assessed  $101,316.69.   On appeal, the circuit court affirmed the county court’s summary judgment in Relle Sr.’s favor, and its $7,000 attorney fees award.
It reversed the county court’s denial of O&P’s JNOV motion and rendered judgment in
O&P’s favor.  Patton appealed and the COA reverses vis-a-vis Patton and reinstates the jury verdict.

Estate of Francis N. Burgess Sr. v. H. Alex Trotter –  damages for trespass and destruction of property – Trotter and Burgess were neighbors. There was a dispute over land and a chancellor ultimately ruled that the land belonged to Trotter. Meanwhile, Trotter filed suit against  Burgess claiming he had trespassed on his land numerous times, removed posted signs, and damaged his fence four times and burned hay.    The county court awarded Trotter $59,915.40 in damages and $13,181 in attorney’s fees. Burgess appealed. The circuit court affirmed on all but the attorneys fees and found that attorneys fees should not have been awarded. At some point Burgess died and his estate appealed.   The COA affirms but finds that the  “cost of the fence should be $45,833.68, rather than the claimed amount of $47,743.40.2”  The judgment, then, should “reflect an amount of $58,005.68, with the judgment accruing post-judgment interest at the rate of eight percent.”

Robert O. Baumbach v. Jennifer Anne Baumbach –  private school tuition/attorneys fees/equitable distribution –  Robert and Jennifer married in 2003 and separated in 2014.  They had two daughters. They agreed to an ID divorce and had the chancellor decide custody and property matters.  The court awarded Jennifer sole physical custody of the couple’s minor children, the marital residence, all of her 401(k) and Roth IRA, twenty-five percent of Robert’s 401(k), and a portion of Robert’s military pension. Robert was awarded the couple’s other real-estate holdings, which had a negative value of $357,000, and he was ordered to pay rehabilitative alimony, child support, private-school tuition, and mortgage payments on the marital home. Robert was also ordered to maintain a life- insurance policy with Jennifer as the primary beneficiary. The COA affirms in part and reverses in part finding that the chancellor  failed to make specific findings why Robert should pay private school tuition in excess of the statutory guidelines for child support.  It also found that the chancellor  failed to specifically address the McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer’s attorney’s fees. It also finds that the court  erred in the equitable distribution of the marital assets, we reverse and remand on these issues.

Shannon Craig Parker  v. State of Mississippi –  firearms evidence/competency/firearms enhancement –  On an evening in January of 2016, Eric and Edna Burkett were walking their dog in their Hattiesburg neighborhood when a truck stopped and the driver got out.  The couple asked if they could help him whereupon the driver, Parker, got a rifle out of the truck and shot Eric in the stomach. He also shot at Edna and missed.  Parker was apprehended shortly thereafter. His truck was in a ditch.  At trial a firearms examiner testified that the shell casing found at the scene came from the rifle found in Parker’s truck. On appeal Parker claims that the expert’s testimony was unreliable but he failed to object at trial and thus the issue is barred.  The court also finds that Parker’s claim that the firearm enhancement used in his case violated double jeopardy lacks merit.  Finally, the COA rejects Parker’s claim that he was entitled to a mental exam. Before trial Parker filed a pro se motion for a mental exam which the judge denied.

In the present case, we cannot say that the trial judge abused his discretion by denying Parker’s motion for a mental evaluation. Even after Parker’s attorney informed the court that she could not present such a motion in good faith, the trial judge afforded Parker an opportunity to put forward any evidence that would warrant a mental evaluation. And even after Parker offered little evidence to support his motion, the trial judge continued to question him in an apparent effort to explore any possible evidentiary basis for the motion.

Willie Lee Williams  v. State of Mississippi sanctions for multiple PCRs –  Williams was convicted in 1999 as an habitual for the sale or transfer of a controlled substance. He was sentenced to 60 years. He has filed many PCRS and assessed fines for frivolous pleadings.  On this, his eighth PCR, the COA assesses a fine of $1000 and orders that he not be allowed to file further PCR motions in forma pauperis pursuant to the mandates of section 47-5-76(1).

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