Decisions – MSSC – 3/21/2019

Hand down list

Elijah Arrington, III, D.M.D. v. Mississippi State Board Of Dental Examiners –  dental license revocation – Arrington had a dental practice at the corner of Northside and North State in Jackson (“Fondren Dental”). The Mississippi State Board of Dental Examiners received some 29 complaints regarding Arrington’s practice and after a hearing on 5 of those found that Arrington was guilty of unprofessional conduct including fraud. The Board revoked his license. Arrington appealed to the Chancery Court pursuant to MCA Sect. 73-9-65 but his appeal was dismissed because although Arrington was personally served with the revocation notice on July 24, 2017, he did not file a notice of appeal until August 24, 2017 – 31 days later (the statute requires the appeal be taken within 30 days). When he did not perfect the appeal by either 1) filing a bond with two sureties approved by the president of the Board or depositing or 2) depositing $100.00 with the clerk of the chancery court, the Board moved to dismiss the appeal. Arrington then filed a bond on September 1, 2017. The Chancery Court granted the Board’s motion to dismiss. Arrington appealed arguing that Sect. 73-9-65 does not require that the appeal be perfected within 30 days. The MSSV affirms. “We decline to address the cost-bond issue, and we find that the chancery court lacked appellate jurisdiction based on Arrington’s failure to file his notice of appeal within thirty days.”

Howard Payton v. State of Mississippi –   death of defendant pending appeal –  Payton was convicted of kidnapping and raping a USM student on  September 19, 2010.   The conviction was filed on January 7, 2016.  On  January 25, 2016,  Payton filed a pro se motion for JNOV.  The motion was denied in an order stamped filed  February 4, 2016. He filed a notice of appeal on February 29, 2016. The Office of Indigent Appeals was appointed to represent him. A few days before the brief was due, Payton died.  His attorney filed a suggestion of death and asked for abatement ab ignitio.  The MSSC leaves the conviction intact and dismisses the appeal.

Because of the increased recognition of crime victims in our constitution and statutory law, and because the policies undergirding stare decisis are not served by continued application of the abatement ab initio doctrine, we expressly overrule Gollott. Since no motion was filed for substitution pursuant to Rule 43(a), we dismiss Payton’s appeal as moot and leave his conviction intact. Miss. R. App. P. 43(a).19 Holmes’s motion to abate Payton’s conviction ab initio is denied.

Wayne Johnson Electric Inc. and Wayne Johnson, Jr. v. Robinson Electric Supply Company, Inc., Tony Walters and Chris Ellzey  –  breach of contract/accounting/dissolved corporation – Johnson Electric sued Robinson Electric Supply for breach of contract, fraud, etc. alleging that  Robinson Electric Supply carried out a fraudulent scheme to overcharge Johnson. Robinson Electric Supply counterclaimed for balances due on Johnson’s accounts. Both parties requested an accounting. The chancellor appointed a special master to hear the case due to its complexity and size of the amount in controversy.  Before the accounting was concluded by the special master, Johnson Electric was administratively dissolved, and as a result, the chancellor dismissed the claims brought on behalf of the corporation. After the special master released her recommendations and a supplemental report, the chancellor agreed with the special master’s findings and adopted the report.  On appeal, Johnson challenges the chancellor’s decision to dismiss Johnson Electric from the lawsuit, the chancellor’s adoption of the special master’s report, and the chancellor’s decision to stay discovery until an accounting could be conducted by the special
master. The MSSC  finds that because Johnson Electric was administratively dissolved, it
cannot “maintain” a claim as a corporation under M.C.A. Sect.  79-4-14.22(a)(4).  Nor did the chancellor abuse his discretion in accepting the special
master’s report or in his discovery rulings.

Alondo Greenleaf v. State of Mississippi assault/accident defense – Greenleaf wanted to borrow his cousin’s truck but the cousin’s brother Dennis Smith had the keys and refused to give them to Greenleaf because Greenleaf had been arguing with his wife and had threatened to run her over.   Greenleaf and Smith began arguing outside, but eventually everyone ended up indoors. At some point Greenleaf bear hugged Smith and stuck him in the lower back with the knife.  Greenleaf was convicted of aggravated assault. At trial he testified that the stabbing was an accident. On appeal he argues that his trial counsel was ineffective in failing to request an accident instruction.  The MSSC affirms. “Greenleaf fails to rebut the presumption this was sound trial strategy, so we affirm Greenleaf’s conviction and sentence.”

 

 

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