Decisions – COA – 6/5/2018

Hand down list

Chester L. Gossett IV v. Tiffany Smith Gossett –  adultery –  Chester Gossett filed a complaint for divorce from his wife, Tiffany Gossett, on the grounds of adultery and cruel and inhuman treatment.  Tiffany answered and filed a counterclaim for divorce on the same grounds. The chancellor dismissed both Chester’s complaint and Tiffany’s
counterclaim finding insufficient evidence. On appeal, the COA reverses and remands finding that the chancellor applied the incorrect legal standard to adultery.  At trial, Chester testified that his wife stayed out very late at night. One night when she was out he received a text message that she had withdrawn $163 from their checking  account while at a casino.  Realizing that this was the amount to rent a room,. he drove to the casino and saw his wife leaving with a man who had been  a customer of
Tiffany’s when she worked at Lowe’s.  The man carried two overnight bags to Tiffany’s car. The two had been spotted at restaurants and after Chester moved out, entering the marital home.  The chancellor denied a divorce on adultery grounds finding that one could conclude that Tiffany committed adultery but  that the evidence  could also be
consistent with a reasonable theory of innocence. This was an incorrect analysis, the COA holds. In a circumstantial evidence case, the proof need not be such that  must lead the factfinder only to a conclusion of guilt. On remand, the court should decide which party is more credible and rule accordingly.

Bettina Grandberry v. RIH Acquisitions MS II, LLC d/b/a Bally’s Casinopremises liability – In November of  2012, Grandberry and her sister went to Bally’s Casino in Tunica to eat at the buffet.  While seated, the lights went out due to a car accident outside the casino.  During the outage, Grandberry claims  that she was hit in the back of the head with an unknown object by an unknown person. She was treated at a hospital for her injuries. She filed a pro se complaint but the trial court granted summary judgment for Bally’s. On appeal she argues that she should not have had to sit for her deposition after the court’s deadline of 120 days after the answer was filed, that Bally’s should have had to answer discovery served after the deadline, and that she should have been allowed further discovery regarding Bally’s power source.  The COA finds that summary judgment was not error inasmuch as Grandberry failed to prove that Bally’s violated any duty to her and her other claims were waived. The COA affirms.

In the Matter of the Estate of George Lee Jones, Deceased: Jimmy Fairchilds, Executor of the Estate of George Lee Jones, Deceased v. Delta Foundation Inc. –  novation  –  Jones died in 2012 in a car accident.  He had owned Three Rivers Transport, a company that delivered and set up mobile homes. When he died, Delta Foundation probated claims for  $88,740.05 and $116,228.17 relate to two promissory notes taken out by Three
Rivers. The notes  originated in 2005 and were renewed in 2008.  In 2005, Jones and his partner Pinkston signed on behalf of Three Rivers and individually. In 2008, Jones signed without noting in what capacity he was signing. The chancellor allowed the claims to be probated, after allowing Delta to amend its claim to add the 2005 notes.  finding that the 2008 notes were not a novation because no new debtors were substituted.  The court, however, made no findings of fact as to whether the parties intended to extinguish the 2005 notes by execution of the 2008 notes. The COA finds it was not error to allow Delta to amend its claim but reverses the ruling allowing the claims to be probated.

Here, the issue is not whether it was intended Jones would not execute the new notes, but whether the execution of those notes was intended to extinguish the 2005 obligation. We agree with the Estate that the checklist, regardless of who created it, could indicate an intent not to continue Jones’s obligation. If Delta intended for the 2005 notes to continue, why would it need the personal guaranty of one but not the other 2005 guarantor? Given the limited record and arguably conflicting evidence, we cannot determine as a matter of law that there was no evidence of intent. Accordingly, we reverse and remand for the chancery court to determine whether the execution of the 2008 notes was intended to extinguish the 2005 notes.

Edward Barnes  v. State of Mississippiridiculous sex offender registration requirements that disallow sex offenders from living anywhere – As a sex offender, Barnes was prohibited from living within 3000 feet of a school, daycare, playground. When it turned out that the residence he registered was within 400 feet of a daycare, he was told he needed to move and register his new address within 15 days.  When the sheriff’s department followed up, Barnes had not moved and explained he had no where to go. He was convicted for failure to register as an habitual to life without parole.  On appeal, he argues that  Barnes argues that his conviction should be reversed because he was never advised that he could register as a homeless person. The COA affirms.

Tradarius Parker  v. State of MississippiLindsey brief – Tradarius Parker was convicted of robbery and sentenced to eight years.  Parker’s counsel filed a brief pursuant to the Mississippi Supreme Court’s holding in Lindsey v. State, 939 So. 2d 743 (Miss. 2005), stating that he found no appealable issues. Parker was allowed to file his own brief but did not. The COA affirms.

Renee Diane Thacker Sellers v. Nicholas Richard Rinderer –  custody – Nick and Renee are the  parents of Melanie, born in 2013, and Paul, born in  2014, while Renee was married to another man. In 2013, Nick filed a complaint for paternity.  After a trial, the court awarded them joint legal custody but physical custody to Nick.  Renee appealed arguing that under Albright, she should have been awarded custody. The COA affirms.

Delton Crutchfield and Lori Crutchfield v. Magnolia Regional Health Center –  medical malpractice/timeliness of expert designation –  Delton  had a heart attack and was treated at Magnolia Regional Health Center in September 2011.  While there  he developed decubitus ulcers on his coccyx, left buttocks, etc.  He wad discharged at the end of October but his wounds worsened requiring amputation of his left leg and he died in June of 2016. In November 012, he sued Magnolia for negligence. In May 2016, Magnolia Regional filed a motion for summary judgment based on Crutchfield’s failure to designate an expert. At the hearing on the motion, Crutchfield’s attorney stated that he had two experts and argued that he did not need to designate his experts until 60 days before trial and was waiting to do so until more discovery came in. The trial court granted summary judgment and Crutchfield appeals. The COA affirms.

Kenneth L. Ostrowski Jr. v. City of D’Iberville, Mississippi –  tort claims act/accident caused by manhole cover displaced by rain –  In May 2014, Ostrowski was injured when his car struck a manhole cover that had been displaced by rain water. He sued the city claiming that the manhole was displaced because of  “rising water because of design and deficiencies” of the City’s sewer system.  In support of his argument, Ostrowski produced an affidavit from a civil engineer stating that the manhole cover was displaced due to rain water increasing the volume of water in the sewer system and that repairs were necessary to minimize the flow of rain water or ground water into the sewer system. The court excluded the affidavit under MRE 702.  The city moved for summary judgment arguing it was immune and the trial court granted it. The COA affirms on the grounds that Ostrowski never came forward with any evidence that the  manhole cover was not displaced solely by the effect of the rain.

Pro se PCRS affirmed:

Daniel Williamson  v. State of Mississippi

Elias Gunn  v. State of Mississippi

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