Decisions – COA – 4/16/2019

Hand down list

In the Matter of the Estate of Lee House Burford, Deceased: Ginger Richards and Kimberly Archer, as Co-Managers of the Blackburn Firm LLC v. Walter Wendell Freeman, Executor contract where one party dies –  In 2008, Lee House Burford hired Barry Blackburn to assist him with estate planning.   The contract called for a payment of  $265,000.00 upon Burford’s demise.  Six years later, Blackburn died. A year later Burford died.  Blackburn’s estate filed a claim for $265,000.  The chancellor found that the death of the attorney meant that the contract could not be fulfilled and awarded $9000 in quantum meruit.  Burford’s estate appealed. The COA affirms.

Merlin Kent Williams v. State of Mississippi aggravated assault – In July 2016, Eddwena Myles was dating Williams when in July 2016 he stabbed her.    Williams was convicted of aggravated assault.  On appeal he is represented by the State Public Defender which filed a Lindsey brief.  The COA affirms.

Rahim Diquan Williams v. State of Mississippiburglary –  Williams was one of four people who burglarized an apartment and stolen credit cards and a car. He was convicted of conspiracy to commit burglary. On appeal he argues that his conviction was against the weight of the evidence. But there were texts and phone calls with the other conspirators and his cell phone was near the scene of the robbery. The COA affirms.

Maurice Lamaine Harris v. State of Mississippi –  auto theft –  Harris was shot while attempting to burglarize a vehicle. He was  charged with attempted auto theft and possession of methamphetamine.  Harris claimed that he thought god had given him the truck as a gift.  On appeal he claims it was error to limit his mental health defense.   But Harris had not given notice that he was proceeding on an insanity defense and his trial counsel agreed that Harris’ testimony about his mental health problems was not relevant since Harris was not proceeding on an insanity defense. The COA affirms.

In the Matter of the Estate of Zona Mae Oliver, Deceased: Sandra Jean Oliver and James Howard Oliver v. James C. Oliver Jr., Terry Michael Carney Jr., and Melissa M. Carney –  nightmare intestate  case  – Zona Mae Oliver died in March 2004. She did not have a will.  Her two sons Howard and J.C. filed a determination of heirship petition and were adjudicated her sole heirs.   Zone Mae’s assets were her home, the surrounding 375 acres in Montgomery County and personal property worth $70,000.  In June 2007, J.C. filed for Ch. 13 bankruptcy.  Th  e case was discharged in December 2012.  In 2009 Howard conveyed his interest in his mother’s estate to his daughter Sandra Oliver.  J.C.’s interest was conveyed to his granddaughter Melissa Carney and her husband Terry,   The Carneys filed a partition action against Sandra.  Sandra and her father Howard filed a petition to appoint an administratrix, to account for lost property and to account for misappropriation of property.   Two years later Sandra and Howard sued the Carneys for fraud claiming that they had converted funds and property belonging to Zone Mae both before and after her death.   The parties agreed on a partition and two commissioners were appointed to prepare a report.  Sandra moved to reopen J.C.’s bankruptcy claiming he had converted Zona Mae’s property.   The bankruptcy  court found her motion time barred.  Sandra then challenged the partition.  She then appealed both the partition as well as an order in the  in the fraud case that consolidated the fraud case and the partition.    In the estate action, the court granted the Carneys motion to dismiss because the issues Sandra raised in the fraud case were litigated in the bankruptcy and partition proceedings.   Sandra appealed that order.   On appeal, the COA affirms the partition.   It upheld the ruling that Sandra’s fraud claims were res judicata.  And it found that Sandra’s appeal of  the fraud action was premature since there was no final order.  There are a zillion more issues but I don’t have a year to summarize them.

Jessie Lou Price v. Joantionette “Toni” Lisenby-Grundy –  contempt – Terry Lisenby, Jr. and Theresa Price had a son in 2004.   In 2010, Theresa’s parents, Jessie and Roy  Price,  filed a complaint for custody  alleging that Terry had disappeared and Theresa was doing excessive drinking and drugs.   The court gave the Price’s temporary custody.  Terry’s mother Toni  then filed a complaint for visitation. The cases were consolidated and Toni was granted visitation.  In November 2015, Toni filed a complaint for contempt against Jessie Price claiming that she had refused to cooperate with regard to summer visitation.  The chancellor found Jessie in contempt and ordered that the parties communicate in good faith regarding summer visitation.  When the summer visitation failed to occur, Toni filed a second contempt action which the chancellor granted.  On appeal, the COA reverses finding that the order to communicate in good faith was too vague to enforce via contempt.

Ladarius Armstrong v. State of Mississippi suppression motion – Ladarius Armstrong was convicted of armed robbery  and  for possessing a firearm as a felon. On appeal he argues that the court erred in not suppressing his confession.  He filled out a form requesting court appointed counsel.  The court finds that this was not sufficient to invoke his right to counsel.  There was also a reference to a request for counsel in a summary of the interview by one of the officers.  However, that summary was never introduced and so there was no evidence that Armstrong invoked his right to counsel when interviewed by Officer Hopewell.  Armstrong also argues that it was error to not allow him to cross-examine  one of the officers regarding the request for appointed counsel form that Armstrong filled out. The COA agrees with the trial court that it had no relevance. Finally, he argues that the trial court erred in not giving an instruction on how to evaluate a confession.  The COA holds that it would have been improper to highlight one piece of evidence over others and affirms,

Lynn Wirtz v. Adams County Board of Supervisors and H.W. Barnettbill of exceptions – In  July  2017, Wirtz attended a  meeting of the Adams County Board of Supervisors and asked it to request that Wirtz’ neighbor explain  his removal of timber and soil from a right of way on Dr. Barnett’s property.  The Board refused and Wirtz filed a bill of exceptions.  The circuit court dismissed the appeal for lack of  subject-matter jurisdiction. The COA affirms  on the ground that Wirtz’s refusal to include the Board’s meeting minutes in his bill of exceptions provided an insufficient record upon which the circuit court could not intelligently act.

Bobbie Young, on behalf of the Heirs of Daniel Lee Tewksbury, Deceased v. Air Masters Mechanical Inc. and Associated General Contractors of Mississippi Inc. –  workers comp and accrued child support – Daniel Tewksbury died in April 2015, as a result of an accidental injury while working for  Air Masters Mechanical. His ex-wife, Bobbie Young, filed a petition  on behalf of their two minor children asking for $34,759 in unpaid child support that accrued prior to the children’s adoption by Young’s husband, Gerald Allen Young Jr.  The AJ  found that the $34,759 lien for child support was valid and payable pursuant to MCA sect. 71-3-129. The Workers’ Compensation Commission reversed the AJ’s order, finding that the minor children were ineligible for benefits because they were not dependents of Tewksbury under MCA sect.  71-3-25. The COA reverses.

We agree with Young that the Commission is without authority to discharge a lien for delinquent child support filed pursuant to section 71-3-129. The Mississippi Supreme Court has “consistently held that child support payments vest in the child as they accrue.” Tanner v. Rowland, 598 So. 2d 783, 786 (Miss. 1992). “Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Id. As each payment becomes due, it “becomes ‘a judgment’ against the supporting parent.” Id. (quoting Brand v. Brand, 482 So. 2d 236, 236-37 (Miss. 1986)). In this case, the minor children’s adoption does not impact Young’s ability to execute on her lien under section 71-3-129.
We hold that Young’s lien is valid under our workers’ compensation statutes. We
remand for the Commission to determine whether a valid child support lien is a benefit payable under the death benefits statute.

 

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