Decisions – COA – 6/12/2018

Hand down list

Ali M. Almasri v. Cindy Hyde-Smith, Commissioner of the Mississippi Department of Agriculture and Commerce and Dr. Ashli Brown, State Chemist –  timeliness of notice of appeal – Ali Almasri’s gas station was enjoined from selling ethanol blended gasoline after a state petroleum inspector performed a routine test on Almasri’s ethanol-blended tank and it tested  positive for water.  During an evidentiary hearing on the injunction,  Almasri challenged the State’s testing methods and both sides  presented expert testimony concerning proof of the water found in the tank. The chancellor found the State’s expert to be more credible and entered the injunction.   Fifty-five days after the chancellor entered the judgment, Almasri filed a motion to extend the time in which to file a notice of appeal, which the chancellor granted.  The COA, though, finds that Almasri failed to show excusable neglect as to why he did not timely file a notice of appeal and dismisses for want of jurisdiction.

Welford Lee McCarty v. State of Mississippi –  gruesome photos – Welford Lee McCarty was convicted of capital murder and desecration of a human corpse.  McCarty was manufacturing methamphetamine on his property. In  2013, McCarty learned that his friend Donovan Cowart was working with law enforcement as a confidential informant. McCarty told Cowart that he wanted to show him a hole that he had dug on his property for use in his meth operation. As he was looking at the hole, McCarty shot him and buried him with the help of two others.  A week later, worried about law enforcement finding the body, he and another dug up the body, dismembered it, covered it in a tarp and placed it under a tree.  On appeal he argues that the trial court erred in admitting some of the photos of the corpse.   He also argues that the prosecution committed misconduct by seeking the admission of the photos as well as introducing more witnesses and evidence than really needed.  The COA affirms.

David McLaughlin v. North Drew Freight, Inc. –  damages – David McLaughlin was making a left turn on a rural two-lane road when he was struck by an 18-wheeler attempting to pass him from behind.  The driver of the 18-wheeler claimed that  McLaughlin slowed and sped back up several times before abruptly turning left in front of him and failed  to give a left turn signal. The 18-wheeler struck the side of McLaughlin’s car and pushed the car approximately 150 feet into a shallow ditch   McLaughlin claimed that he suffered damages  in the amount of $591,000.  The jury found McLaughlin comparatively negligent and returned a verdict of $1,400 – the  medical expenses incurred on the day of the accident. On appeal he argues that the court should have given a negligence per se instruction and that it erred in giving a comparative negligence instruction. He also argues that the jury should not have heard about his use of alcohol. He was given a breath test that registered .02.  McLaughlin  raises issue having to do with the amount of the damage award (he asked for $591,000) as well as the admission of a video of him doing jumping jacks with his daughter.  The COA affirms.

Odis Emery v. Greater Greenville Housing and Revitalization Association –  petition to reform deed/default judgment  – Greater Greenville is a Mississippi non-profit corporation. It agreed to sell properties to Odis Emery.  The deed, though, contained a scrivener’s error so that it listed 4 extra properties that the parties had not agreed to buy and sell.  Greater Greenville filed a petition to reform the deed.  When Emery failed to answer, it obtained a default judgment. Three weeks later Emery moved to set it aside which the trial court denied. On appeal the COA finds “that the chancery court did not abuse its discretion in finding against Emery on the good cause prong of the Rule 60(b) three-prong balancing test; or in finding against Greater Greenville on the prejudice prong. We find, however, that the record shows that Emery demonstrated he had a colorable defense to Greater Greenville’s lawsuit, and that the chancery court’s determination that he did not have a colorable defense was based on an error
of law” and reverses.

Elle A. Adams v. John Leon Rice –  contempt for failure to allow visitation – In 2013, John filed a petition to establish paternity, custody, and support of Aaron – his child with Elle Adams. The chancery court granted Elle physical custody of Aaron, with both parties having joint legal custody. John was awarded visitation consisting of alternating weekends and specific holidays.  Elle appealed and the judgment was affirmed.  In 2015, a family court in Alabama, granted Elle an ex  parte temporary protection order due to alleged domestic abuse by John.   In November of that year,  John filed a petition for citation of contempt for failure to allow visitation and for modification of custody. Elle claimed that she did not have to prodcue the child due to the Alabama order.  At the hearing, neither Elle nor Aaron was there. Elle claimed he was sick. The chancellor found that the Alabama order was not a defense. Assuming it was still in effect, the Alabama court  had no authority to interfere with the chancery court’s decision.  John had no notice of the Alabama order, nor had that  court contacted the Mississippi chancery court to discuss custody or visitation. It found her in contempt. She appealed and the COA affirms.

Christopher Lee Thompson  v. State of Mississippi –  Weathersby – Thompson was convicted of manslaughter in the death of Thomas Harlow.  Thompson and his wife were out drinking with Harlow and came back to Harlow’s place where he offered them a bedroom so they would not have to drive home.  Thompson claimed that he woke up to find Harlow performing oral sex on him.  On appeal, he argues that he was entitled to in instruction under Weathersby.  In Weathersby  the court held that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge. However, since the medical examiner’s testimony that there were more than the one or two blows described by Thomson, Thompson was not entitled to a Weathersby instruction.  The COA affirms.

Valerie J. Yerks, Individually and on Behalf of her Minor Son v. Elizabeth A. Trest, M.D. and Woman’s Group of Meridian PLLC –  med mal causation – When Yerks was 40 weeks pregnant, her doctor decided to induce labor since she was a few days past her due date.  When Tyler was born, it was discovered that macrocephaly,  severe hearing loss, and he was legally blind.   Yerks sued her doctor and the doctor’s employer. The trial court granted summary judgment to the defendants finding that Yerks lacked evidence of causation.   The COA affirms.

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