Decisions – COA – 7/16/2019

Hand down list

Milton Pilate v. Mississippi Department of Employment Security and Powell Transportation Companyclerk must notify party of deficiency regarding appeal – Pilate was working for Powell Transportation Company when he started suffering from vertigo. He got treatment but the symptoms returned when he was driving. Instead of continuing his route to Louisiana, Pilate drove to Powell’s Flowood terminal and returned the truck.  He called two days later to say he was feeling better and ready to work.   The manager informed Pilate that he would need to check with the owner.  According to Pilate, no one ever contacted him. He then filed for unemployment benefits. MDES claims examiner denied benefits and Pilate appealed to the administrative judge.  The AJ also denied the claim.  Pilate appealed the AJ’s decision to the Board which affirmed the AJ. Pilate appealed the Board’s decision to the Hinds County Circuit Court.  MDES filed the record and its answer one month later.  Pilate did nothing.  Pilate’s attorney filed an entry of appearance on May 25, 2017.  On June 5, 2017, Pilate’s attorney filed a motion to withdraw as counsel of record.  The court entered an order granting the motion and stated that Pilate had sixty days to obtain substitute counsel or notify the court that he intended to proceed pro se.  On July 5, 2017, Pilate filed an “answer” or response to the order, stating he “ha[d] no choice but to proceed . . . pro se.”  In  December 2017, MDES filed a motion to dismiss based on Pilate’s failure to file a brief. The circuit court granted the motion. The COA reverses and remands finding that where there is a deficiency in an appeal, the clerk is required to give 14 days notice before dismissing the appeal.  That never happened here.

Dennis Lawrence Smith v. State of Mississippipcr – Smith was sentenced to serve sixty years after pleading guilty to three counts of the sale of cocaine with the subsequent offender enhancement.  He filed a pcr motion arguing that his sentence was disproportionate to the crime and constituted cruel and unusual punishment (that’s always a winner – how do these people not know to commit their crimes in Hinds County).  The circuit court dismissed Smith’s motion without an evidentiary hearing.  Smith appeals that dismissal. In addition to the issues raised in his PCR motion, on appeal he argues for the first time that (1) his sentence amounts to a life sentence  under the circumstances and (2) there was no evidence of a 1999 Rankin County conviction of possession of a controlled substance subjecting him to an enhanced punishment. The COA affirms.

B.E.G. v. R.C., as Natural Mother and Best Friend of J.L.C. and Best Friend of A.L.G.C termination of parental rights – B.E.G. and R.C. were married and had two children, J.L.C., born in April 2016, and A.L.G.C., born in June 2012. In May 2016 the children were placed in the care and custody of the Warren County Department of Child Protective Services because of neglect due to their parents’ drug use. The children were placed in their maternal grandparents’ custody and ultimately returned to R.C. in  September 2016, when she successfully completed drug treatment.  In May 2017 R.C. filed a petition to terminate the parental rights of B.E.G. Process was done via publication and a GAL was appointed.  B.E.G. appeared at the hearing which was continued. On the next date, B.E.G. did not appear.  The court terminated B.E.G.’s parental rights. Six months later he  filed a motion to set aside the order terminating his parental rights or, alternatively, reopen the time for an appeal. The court denied the motion. On appeal, the COA affirms.

William A. Penton v. State of Mississippi Lindsey brief – Penton was found guilty of one count of possession of methamphetamine and sentenced to 8 years as an habitual. On appeal his counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005).  His counsel represents that he diligently searched the record for any arguable issues that could be presented on appeal but found none.  Penton filed a pro se supplemental brief. The COA affirms.

FSG Southaven LLC v. Makowsky Ringel Greenberg LLCeviction – FSG entered into a lease with Makowsky in late 2012 for the rental of a portion of a shopping center in Southaven.  When  FSG failed to pay rent in July 2016, Makowsky filed a “Landlord or Agents Affidavit to Remove Tenant Holding over without Permission” in the DeSoto County Justice Court. FSG was served but failed to appear.  The justice court entered a default judgment against FSG and awarded Makowsky $500 in attorney fees, $64 in filing fees, and possession of its property. Two months later  FSG moved for the justice court to set aside the judgment and eviction for good cause on October 21. The justice court denied FSG’s request and FSG appealed the denial to the County Court. After a hearing, the county court granted the motion to dismiss and entered an order of procedendo. FSG appealed to the Circuit Court, which determined that the county court “did not specifically address the issue as to whether the Justice Court judgment was void because [Makowsky’s] claim exceeded the justice court’s jurisdiction limits.” On remand, the county court addressed the specific issue, finding that the judgment from the justice court was not void. FSG appealed, and the DeSoto County Circuit Court affirmed the county court’s order. FSG appealed arguing that there was (1) good cause existed to set aside the default judgment; (2) Makowsky failed to provide statutory and contractual notice of eviction; and (3) the justice court exceeded its jurisdiction. The COA affirms.

Tamara A. Barbaro v. Coty A. Smithbe careful who you have children with  – Barbaro and Smith  had a son, Will, in November 2014.  In April 2015, the chancery court entered an agreed judgment granting physical custody to Barbaro, joint legal custody to Barbaro and Smith, and visitation to Smith. About a year later  Barbaro alleged that Smith had allowed Will to ingest two opioids.  In support of her claim, Barbaro submitted the results of a drug test that purported to show that Will had tested positive for the drugs.  Barbaro also informed the court that Smith had been arrested recently and charged with drug trafficking.  Smith maintained his innocence, denied that he exposed Will to the drugs, and accused Barbaro of fabricating the positive drug test.  After investigating Barbaro’s allegations, the GAL concluded that Barbaro not only fabricated the drug test but also participated in a scheme to plant drugs in Smith’s truck.  Law enforcement also concluded that Smith had been setup and remanded the charge against him to the file.  The GAL recommended that the chancellor grant Smith custody of Will.  After a trial, the chancellor agreed with the GAL’s recommendation, granted Smith sole physical and legal custody of Will, and granted Barbaro visitation.   On appeal, Barbaro argues that the chancellor erred by denying her motion to alter or amend the judgment as untimely.  She also argues that the chancellor erred by finding that she falsified the drug test and played a role in a scheme to plant drugs, by finding a material change in circumstances that adversely affected Will, and by finding that it would be in Will’s best interest to modify custody.  Finally, Barbaro contends that the chancellor “abused his discretion to the extent that he gave any weight to the [GAL’s] report.”  The COA affirms.

Thomas Gilmore v. State of MississippiLindsey brief – A Forrest County jury convicted Thomas Gilmore of burglary of a dwelling and sexual battery.  Gilmore’s appellate counsel filed a brief in compliance with Lindsey v. State, 939 So. 2d 743 (Miss. 2005), certifying  that the record presented no arguable issues for appeal. Gilmore then filed a pro se brief asserting several issues.  The COA affirms.

Floyd Parson Jr. v. Go Knightrider LLC premises liability –  Parson  filed a negligence action against Go Knightrider LLC  alleging he was injured when he slipped and fell on a slippery substance at GK’s convenience store/gas station.  GK moved for summary judgment on the grounds, that Parson lacked sufficient evidence to support his negligence claim because even if a dangerous condition existed on its premises, Parson failed to show GK had constructive notice of it.  GK also moved to dismiss Parson’s lawsuit, with prejudice, for discovery abuse.  The circuit court granted GK’s summary judgment motion, finding that Parson failed to offer sufficient evidence to overcome summary judgment that GK had constructive knowledge of the allegedly dangerous condition on its premises.  In the alternative, the circuit court granted GK’s motion to dismiss Parson’s lawsuit, with prejudice, for discovery abuse. The COA affirms.

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