Decisions – COA – 8/22/2018

Hand down list 

Theopolois Harper, Individually and on Behalf of All the Heirs at Law and Wrongful Death Beneficiaries of Laura Tine Harper, Deceased v. Hudspeth Regional Center and Mississippi Department of Mental Health –  tort claims act – Laura Tine Harper was a patient at the Hudspeth Regional Center from 1980 until her death in 2008.  She suffered from psychotic disorder, obsessive compulsive disorder, and mental retardation. Her individual support plan noted that she needed to be monitored when eating because she ate fast.  In 2008, at a time when she was not being monitored, she grabbed some cheese off of a table and choked to death.  Her family sued. After a bench trial, the judge found for the defendants.  The plaintiffs appealed arguing that the verdict was against the overwhelming weight of the evidence. The COA affirms.

Frederick Partee v. State of Mississippi –  hearsay/MRE 801(d)(1)(c) –  Partee was found guilty of burglary of a dwelling and sentenced to 25 years as an habitual. Fifteen-year-old Jasmine Carey knew Partee and watched him enter the house by way of a window. She testified at Partee’s trial.  An investigator was allowed to testify as to what Carey told him about what she saw over a hearsay objection by Partee.  On appeal, Partee argues that the introduction of the hearsay was error. The COA finds that Carey also testified and that she was available for cross-examination. Furthermore, Carey’s statements as testified to by  Investigator Jones were mostly statements of identification of Partee in the manner Carey perceived him at the time and not hearsay pursuant to M.R.E. 801(d)(1)(C).

Willie J. Perkins, Sr. v. James K. Littleton –  defamation – Littleton   was running for circuit court judge in the Delta. Also running were Takiyah Perkins and Carol White-Richard.  In August and September of  2014 the Greenwood Commonwealth published articles about a lawsuit that Littleton’s mother and sister had filed against Littleton in the Bolivar County Chancery Court  alleging that Littleton had forged deeds related to his deceased father’s estate.  Littleton made a radio ad in which he stated that “the father of one of [his] opponents” had “conspired” with Littleton’s family “to go public with [a] family dispute to derail [Littleton’s] campaign.”  White-Richards’ father was deceased. Takiyah Perkins’ father Willie sued Littleton for defamation. The trial court   granted summary judgment for Littleton on the ground that his statement was “not clearly and unmistakably directed toward [Perkins].” The COA affirms but finds that the statement was clearly about Perkins, but it was not defamatory.  “[I]t is not inherently
defamatory to assert that a person sought to obtain a political advantage by telling a reporter about a matter of public record involving a candidate for public office. In substance, that is all that Littleton said about Perkins.”

Rickey McCarley v. Kellie McCarleyseparate maintenance – Rickey and Kellie were married in 1979 and separated in 2015. Rickey filed a complaint for divorce  on the grounds of constructive desertion, habitual cruel and inhuman treatment, and irreconcilable differences. Kellie filed a complaint alleging that she and Rickey separated
due to Rickey’s adultery and habitual cruel and inhuman treatment. Kellie requested that the chancellor award her temporary alimony and permanent separate maintenance during the term of the separation.  At the conclusion of the trial, the chancellor  stated that she would rule after reviewing the exhibits. She  then scheduled a telephone conference with the attorneys, explaining that she would give her opinion at that time and also ask one of the attorneys to prepare the order.  The chancellor found that Rickey failed to prove his case but that  Kellie met her burden of proving that she was entitled to separate maintenance. Kellie was awarded  the marital home and $500 per month for spousal support.  Rickey appealed. He first argues that the chancellor erred in failing to make a transcript of the telephone conference part  of the record.  The COA finds no error.  The record contains the chancellor’s written ruling.  While Rule 4.02 mandates that  “if the chancellor opts for an oral opinion, it must be transcribed for the record,”   if a party wishes a chancellor to find the facts specially and state separately her conclusions of law, the party must make a request. Neither party made such a request and, thus, there was no error. Rickey also argues that the chancellor erred in determining that Kellie did not materially contribute to the separation because the evidence  showed that Kellie’s lack of intimacy and hostility towards Rickey over the years served as a material and contributing cause to their separation. For this reason, she was not entitled to separate maintenance. The COA finds that the chancellor’s findings were not manifestly in error and affirms.

William Frances Ryan and Pamela Reynolds Ryan v. David Ray and Nancy Rayeasement – The Ryans and the Rays owned adjoining properties on the beach in Bay St Louis.  When the Ryans purchased their property in 2011, the deed was made subject to an easement consisting of a driveway next to a rear lot owned by the Rays. In 2013, the Ryans did a title search that turned up a 1995 deed referencing an easement for the purpose of ingress and egress to the chapel which referred to a large building and not a church. The building  ended up being destroyed by Katrina in 2005.  The Ryans then blocked the driveway and filed suit to quiet title.  The chancellor found a latent ambiguity by way of the deed’s reference to a chapel.  The chancellor resolved the ambiguity and found that the easement was created with the intent to establish a perpetual easement for ingree and egress to the Rays’ property. Alternatively, the Rays established an easement by prescription. The Ryans appealed and the COA affirms.

Pro se PCR appeal affirmed:

Keith Magee v. State of Mississippi

(note: due to illness in the family, the summaries may be posted later than they have been in the past)

 

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