Decisions – COA – 8/6/2019

Hand down list

Linda Hayes v. Howard Industries, Inc workers comp. – Linda Hayes sustained a neck injury while working at Howard Industries, Inc. and filed a compensation claim.  The AJ Judge entered an order finding Hayes sustained a loss of wage-earning capacity and requiring Howard Industries to pay Hayes permanent partial disability benefits and future medical benefits. On appeal the Commission entered an order declining to accept the AJ’s  determination and found that Hayes did not sustain a loss of wage-earning capacity.  Hayes appeals.

Melvin Grayer v. State of Mississippi burglary/trespass – after an alarm sounded at a Gulfport Church, law enforcement officers found Grayer face down on the floor with a flashlight next to him.  A window near the door was broken and an alarm panel and a thermostat had been ripped from t he wall. Grayer told police that he had seen a man he knew named Larry Smith break the window of the church and then run away.  Grayer admitted that he did go through the broken window into the church but that he only did it so he could have a place to sleep. Grayer was convicted an  on appeal he argues that   On appeal, Grayer argues that the trial court erred in not f=giving him a lesser included trespass instruction. The COA agrees and reverses and remands.  “Trespass is a lesser-included offense to every burglary.”  “Accordingly, if a rational or reasonable jury could have found Grayer not guilty of burglary yet guilty of trespass, then the trespass instruction should have been given.”

Shann M. Martin v. James Mitchell Martin Jr division of marital property/ custody – Shann and  Mitch were granted a divorce on the ground of irreconcilable differences.  The divorce decree awarded Mitch physical custody of the couple’s son and three parcels of real property that had been gifted to the couple from Mitch’s parents.  Shann appeals, challenging the chancery court’s custody determination and distribution of the marital assets. The COA affirms.

Dennis Steven Rushing, Administrator of the Estate of Dennis Houston Rushing, Deceased v. Mobile Forest Products, Inc., an Alabama Corporation and Dason Arrington vehicular accident – Dennis was a paramedic riding as a passenger in an ambulance when it crashed into an eighteen wheeler as the ambulance was passing the 18 wheeler and the 18 wheeler was making a left turn.   Dennis’s father brought a wrongful-death lawsuit against Charles Bexley, the driver of the eighteen wheeler, and his employer Henderson Timber Felling Inc. He  later added two other defendants to the suit—Dason Arrington (the driver of the eighteen wheeler following Bexley) and his employer, Mobile Forest Products Inc. (Mobile Forest).  Before trial, the father  settled his claims against Bexley and Henderson. Following a trial, the jury found that Arrington was not negligent.  On appeal, the plaintiff  argues that (1) the circuit court erred in admitting the ambulance driver’s blood-test results that showed meth and amphetamine into evidence; and (2) the circuit court erred in denying jury instruction P-5 which stated, in essence, that a driver has a duty to see that which is in plain view or open and apparent and to take notice of obvious dangers. The COA affirms.

Ali Almasri v. Mississippi Department of Revenue –  taxes – Almasri owned and operated several convenience stores in Tupelo, Mississippi.  The MDOR audited Almasri’s businesses in August 2012 for sales tax, special county tax, and withholding tax.  The MDOR also audited Almasri’s individual income tax.  In June 2013, the MDOR issued tax assessments against Almasri totaling $104,329. Almasri appealed to the MDOR’s Board of Review  which affirmed all five  assessments but reduced several of them t o a total of $89,354.  He appealed to the Board of Tax Appeals  which affirmed  the Board’s decision through five separate orders. Almasri appealed all five orders to Lee County Chancery Court.  The MDOR filed a motion to dismiss, arguing that the chancery court lacked appellate jurisdiction based on Almasri’s failure to post a surety bond of one-half the amount in controversy with his petition or prepay the assessment under protest.  MCA 27-7-7.  Almasri’s attorney admitted that Almasri failed to post a bond when he appealed or prepay the assessments under protest but  claimed Almasri was unable to pay.  The chancery court  found it lacked jurisdiction based on Almasri’s failure to post a bond or prepay the taxes under protest.  On appeal the COA affirms finding Almasri’s constitutional challenge (he argues that his due-process and equal protection rights were violated because his financial inability to post a bond deprived him of access to the court to appeal his tax assessment) to be procedurally barred and affirms.

Marvin Hayes Hunt v. Marina Huntcontempt – When Marvin and Marina divorced Marvin was ordered to return Marina’s personal effects. She later filed for contempt claiming that he failed to do so. Hayes swore  that he did not possess the property and did not know where it was.  The chancellor denied the motion for contempt but instructed Hayes that he must “diligently search and . . . make any reasonable inquiries as to the whereabouts of the property and return it to Marina or inform her about its whereabouts immediately.”   Marina filed a second motion.  This time the court found Marvin in contempt. During the hearing, Marina testified that after she was permitted to view Hayes’s shop, she found items that belonged to her, including some of her clothes, books, and Christmas decorations. Marvin admitted these belonged to Marina.  Marvin’s daughter testified that Marvin had moved other items belonging to Marina to other places. The chancellor found Marvin in contempt, ordered him to turn over the items, and pay her over $5,000 in attorneys fees.  The COA affirms.

Waste Management of Mississippi Inc. v. Jackson Ramelli Waste LLCcontract – Pursuant to a subcontract that became effective in  November  2009, Waste Management of Mississippi Inc. contracted with Jackson Ramelli Waste LLC for Jackson Ramelli to perform trash-collection services in Jackson, Mississippi.  Jackson Ramelli subsequently sued Waste Management to recover compensation for trash-collection services it continued to perform through its subcontractor  after the written subcontract between it and Waste Management expired on September 30, 2010.  Waste Management filed a counterclaim against Jackson Ramelli, alleging breach-of-contract and fraud-based causes of action.  The trial court granted Jackson Ramelli’s motion for a directed verdict on Waste Management’s counterclaim, and the Hinds County Circuit Court jury issued a general verdict in Jackson Ramelli’s favor, awarding it $1,017,527.56 in damages. On appeal the COA  reverses and renders on Jackson Ramelli’s breach-of-contract claim; reverses and remands on Jackson Ramelli’s quantum meruit claim with instructions to the trial court that Waste Management be allowed time for discovery to explore and establish any defenses to this claim; and affirms the trial court’s grant of a directed verdict on Waste Management’s counterclaim for breach-of-contract and fraud-based causes of action.  

Pro se PCR appeal affirmed:

Juan Morales  v. State of Mississippi

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s