Decisions – COA – 6/4/2019

Hand down list

Ruben Orlando Benitez v. Joel Wallacestatute of limitations – Ruben Orlando Benitez was convicted of the murder of Stacey Wright.  His conviction was affirmed on appeal in 2014.  In June  2017, Benitez sued MBI investigator  Joel Wallace  alleging that Wallace committed several torts against him during the investigation into Wright’s murder.   The trial court granted Wallace’s motion to dismiss, finding that the alleged tortious conduct occurred in 2011, and therefore the one-year statute of limitations barred Benitez’s claim. The COA affirms on appeal.

Willie Brown and Carolyn Talley Brown v. Blue Cane Cowart Tippo Water Association Inc., and its Board Members, Joseph Wilson, President, Pamuela Henderson, Vice President, Lula Bradley, Treasurer, and Don Daviswater associations – The Browns own a private well and water system known as the Sharkey-Twilight Well; it serviced seven other households. The Browns were also connected to a second  system, the Blue Cane water system, which services approximately 440 households.  Apparently the Browns were the only persons who were simultaneously connected to both well systems. In March  2017, the Browns received results of bacteria screening done on the Sharkey-Twilight Well by the Mississippi Well Owner Network.  It stated that coliform was Present. The Browns notified the others  including Blue Cane  of the possible contamination and that they would be shutting down the well for further tests.  Blue Cane was thereafter denied access to the Browns’ land and Blue Cane was forced to disconnect the Browns from the Blue Cane system.  Unable to access the Brown’s system to test it, Blue Cane voted to revoke the Browns’ membership in Blue Cane.  The Browns sued. The court ended up finding that the Browns owed Blue Cane its expenses, less their own expenses, which resulted in a  judgment in favor of Blue Cane in the amount of $3,585.63, which the court ordered to be paid at a rate of $75 per month.  The Browns appealed and the COA affirms. 

Abdalrahim Hasain v. State of Mississippifailure to support child –  Abdalrahim Hasain was convicted of deserting, neglecting, or refusing to support a child under 18 pursuant to  MCA §97-5-3.  He had fathered a daughter with Trina Johnson in 2000.  The child had autism and required around-the-clock care.  In 2002 Hasain was ordered to pay $125 per month in child support plus $25 per month until he satisfied his $1,500 arrearage.  He made two $20 payments in 2016.  On appeal he argues that the evidence failed to show that he willfully refused to support his daughter.  The COA affirms.

Russell Gill v. Professional Auto Collision –  negligent auto repairs – Gill purchased a 1967 Chevrolet C10 to take to Cruisin’ The Coast and other antique car shows.  He paid Professional Auto Collision owned by William Webb, to repair it for an estimated $6,415.72. When he picked the truck up months later, he was dissatisfied with the poor quality of the paint job.  He filed suit against Webb and Professional Auto Collision.  The trial court granted summary judgment to Webb finding no evidence to pierce the corporate veil. Professional Auto Collision filed a motion for summary judgment arguing that Gill had no expert evidence to show that the professional services rendered were done negligently.  The trial court granted the motion. On appeal the COA reverses.  “Based on the evidence before us, a genuine issue of material fact remains as to whether Gill discussed the pre-painting preparation with Professional Auto Collision.”

Justin Earl Flowers v. State of Mississippi revocation of probation –  Flowers pleaded guilty in 2012 to a bill of information charging  him with  grand larceny.  The trial court withheld adjudication upon completion of two years of probation.  In 2015, MDOC filed a petition for revocation which Flowers confessed.  The court revoked his probation and sentenced him to ten years in the custody of the MDOC, with ten years suspended for successful completion of the Therapeutic Drug and Alcohol Program.  The court retained jurisdiction under MCA §section 47-7-47.  After Flowers completed the drug program, the circuit court resentenced Flowers to ten years in the custody of the MDOC, with ten years suspended and three years of post-release supervision on June 28, 2016.   In October 2017 the circuit court revoked Flowers’s post-release supervision and sentenced him to his original term of ten years in the custody of the MDOC, with credit for time served but with no portion of the sentenced suspended.  Flowers filed a motion for reconsideration, or in the alternative, a petition for post-conviction  relief  contending that at the time of his adjudication of guilt, the sentence for grand larceny was five years, not ten. The circuit court held that it lacked jurisdiction  because Flowers’s prior motion to reconsider was filed more than a year after the June 28, 2016 order, which “was well outside the term of court.”  With regard to Flowers’s PCR motion, the court concluded that the argument regarding sentencing was without merit. On appeal, the COA agrees that the circuit court lacked jurisdiction to reconsider or amend Flowers’s June 28, 2016 sentence, but the court did have jurisdiction to consider Flowers’s claim of an illegal sentence in his November 1, 2017 alternative PCR motion.  Finding that the circuit court did not err in sentencing Flowers under the prior version of the statute, the COA affirms the denial of Flowers’s motion.

Mark Jerome Chism v. Landaria Larose (Saulsberry) Chismvaluation of business in divorce – Mark and Landaria married in 2010, had no children, but opened a profitable chicken-wing and fried-catfish business, Memphis Best Wings, in Memphis.  They separated in 2015 and agreed upon an ID divorce.  Mark claims the chancery court improperly conducted the trial even though he requested a continuance because his attorney was allowed to withdraw two days beforehand, and he  had to represent himself at trial.  He also disagrees with the valuation of his business for property division, as the only proof presented for its value was Landaria’s estimate.  The COA finds no error in the refusal of a continuance but reverses on the court’s evaluation of the restaurant business. “The chancellor found the business’s value was $1,000,000 according to Landaria’s unsupported testimony and Rule 8.05 estimate.  No details of how she arrived at this valuation were provided, and Mark did not even list the business on his Rule 8.05 form.  The chancellor found that the business had “grown into a very substantial and profitable” one.  He stated the $1,000,000 figure “has not been disputed” by Mark, who did not rebut this estimate at trial or offer his own estimate.  Yet, there was no testimony from Landaria about how she arrived at that value for the business.  Landaria even admitted, when asked by the chancellor, that her stated value was ‘just [her] estimate.’”

Gregory Eugene Mootye, III v. State of Mississippialibi evidence – Gregory Mootye was convicted of three counts of deliberate-design murder in the killings of his girlfriend, her mother, and their unborn child. On appeal he argues that the court erred in refusing him an alibi instruction.  Mootye did not testify so the only evidence of the alibi was an investigator’s testimony that Mootye told him he was at home when the killings occurred.  The COA finds no error. “Upon review, we find that Detective McLemore’s testimony that Mootye told him he was at home during the time of the murders does not present evidence that, if found credible by the jury, would raise a reasonable doubt as to Mootye’s guilt.”  He also argues error under Batson and ineffective assistance of counsel. The COA affirms.

Robert Ellis v. State of Mississippi –  jurors’s midtrial realization he knew victim –  Ellis was convicted on three counts of sexual battery of his then-fourteen-year old daughter Kelly.  On appeal, Ellis argues that his trial counsel provided ineffective assistance by not objecting to the continued service of a juror who realized and disclosed mid-trial that he had taught the victim in school. The juror was questioned whether it would have any impact on his ability to be fair and assured the judge that he had not had a one-on-one relationship with Kelly and could be fair.   The COA affirms.

Darosky Derrell Ford v. State of Mississippifelon in possession – Darosky Ford was convicted of  two counts of possession of a firearm by a convicted felon. He argues that his right to a speedy trial was violated and that the evidence was insufficient.  The COA affirms.

Joshua Adams v. MBA Foundation d/b/a Mississippi Basketball & Athletics – additional time for service of process – In May of 2014, Adams was working as a referee during a basketball tournament held at MBA’s facility.  Adams and Justin Griffin, a basketball coach, had an argument that escalated into a more serious altercation in the parking lot.   Griffin suffered a head injury and died. Adams also suffered head injuries and filed a complaint three days prior to the running of the SOL MBA; Mississippi Boys Hoops Inc.; and Amateur Athletics Union.  Adams served two of the three defendants but had difficulty serving MBA whose registered agent was someone whose address was in Ridgeland.   Adams’s process server made six attempts to serve MBA within 120-days, but no one  answered the door.  On the 121st day, filed a motion for an extension of time to serve MBA.  The county court  granted the motion and on November 17, 2017, the agent was served at the MBA facility in Jackson.  MBA filed a motion to set aside the order granting Adams an extension of time and for summary judgment based upon its statute of limitations defense.  The court set aside the order extending time for service and held that the suit was barred by the SOL.  On appeal the COA reverses. “Adams showed good cause through his diligent efforts and the circuit court abused its discretion in setting aside the county court’s order that granted his motion for an extension of time to serve MBA.” 

Pro se PCR appeals affirmed:

Patrick Clark v. State of Mississippi

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