MISSISSIPPI COURT OF APPEALS OPINIONS …...MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 11/7/2017 Attorney(s) for Appellant: W. TERRELL STUBBS, LAUREN ELIZABETH CAVALIER

MISSISSIPPI COURT OF APPEALS OPINIONS

HAND DOWN DATE: 11/7/2017

Attorney(s) for Appellant: W. TERRELL STUBBS, LAUREN ELIZABETH CAVALIER

Attorney(s) for Appellee: RAYMOND PATRICK TULLOS

Topics: Domestic relations - Modification of child custody - M.R.C.P. 81(d)(5) -

Rule 81 summons - Notice of continuance

Author: Judge Westbrooks

Trial Judge: HON. GERALD MARION MARTIN

TULLOS v. TULLOS, NO. 2016-CA-01117-COA

https://courts.ms.gov/Images/Opinions/CO125656.pdf

Trial Court: SMITH COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Jessica Tullos and James Tullos filed a joint complaint for divorce. A judgment of divorce

was entered for the parties. Jessica was given physical custody of the minor children, and

James was given visitation and required to pay $1,000 per month in child support. A year

later, James filed a petition to modify the judgment, requesting that the chancery court award

him physical custody of the minor children and require Jessica to pay child support. James

alleged that Jessica was using illegal drugs in the presence of their children. The case was

continued several times. Eventually, a hearing on the petition to modify custody was held.

James, his attorney, and the guardian ad litem were present during the hearing, but Jessica

was not. James testified that Jessica had moved to North Dakota with their son. After the

testimony concluded, the chancellor ruled from the bench that he found a substantial material

change that adversely impacted the minor children. The court found that it was in the best

interests of the minor children to reside with James. However, the chancellor did not sign an

order reflecting his ruling on that day. Later, another chancellor in the same judicial district

signed an order, nunc pro tunc, altering the final judgment and awarding James physical

custody of both minor children. Jessica appeals.

Analysis: When a modification action is filed, notice of the action and the procedures for continuances

are governed by M.R.C.P. 81(d)(5). The Mississippi Supreme Court has held that a central

consideration under Rule 81 is the adequacy of the notice of the date, time, and place of the

hearing. However, if a proper summons is given that notifies the other party of a new

controversy that has arisen and of the date, time, and place for a hearing, the rule itself

provides that an order entered on the day of the initially scheduled hearing obviates the need

for any new summons for a hearing actually held on the later date. If no such order is

entered, there should be a new Rule 81 summons. Here, though there were five

continuances, all orders were signed by the chancellor on each respective hearing date.

Therefore, the initial summons was preserved. Jessica argues that because she was not

provided a copy of the four subsequent orders continuing the case and resetting the trial, a

new Rule 81 summons should have been issued. However, caselaw does not support this

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contention. The rule states that if the matter is not heard on the day it is set, then an order

entered on that day may continue the cause to a later date without a new summons being

issued. Jessica had notice of the first continuance, and she also admits that she may have had

actual notice of the final hearing through the GAL’s statement regarding the hearing. While

actual notice does not cure defective process, Jessica was aware of a pending custody matter,

evidenced by her initial appearance at the first hearing and her signature on the first order of

continuance. A central tenet of Rule 81 is adequate notice of a pending legal matter, and

Jessica was given notice at the inception of the custody matter. Thus, an additional summons

was not required, and Jessica was adequately notified of the custody matter.



Attorney(s) for Appellant: SARAH CLINE STEVENS

Attorney(s) for Appellee: L. BRADLEY DILLARD, JOHN M. CREEKMORE

Topics: Real property - Discovery - Personal appearance - Waiver of service of

process - Denial of continuance - Adverse possession - Deposition testimony

Author: Judge Carlton

Trial Judge: HON. JACQUELINE ESTES MASK

LITTLE v. RICHEY, NO. 2016-CA-01423-COA


Trial Court: MONROE COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Donald and Nancy Richey filed a complaint asserting a claim of adverse possession and

seeking to quiet and confirm title to real property. The Richeys initially filed the complaint

against Tim Little and any unknown persons having any legal or equitable interest in the real

property located in Monroe County. The chancellor later granted the Richeys’ motion to join

Tim’s son, Anthony Little, as a defendant. The chancellor held a trial and dismissed Tim as

a defendant due to the fact that he no longer owned the property in question. At that time,

Anthony informed the chancellor that Tim’s attorney did not, and never had, represented him

in the matter at issue. Anthony requested a continuance in order to retain additional counsel.

The chancellor granted the request. Two weeks before trial, Anthony’s attorney entered an

appearance in the matter on behalf of Anthony and filed a motion for additional time to

conduct discovery. The chancellor denied the motion. After the trial, the chancellor found in

favor of the Richeys as to their claim of adverse possession. Anthony appeals.

Analysis: Issue 1: Discovery

Anthony argues that the Richeys failed to properly and timely join him as a defendant and as

a result, the chancellor abused her discretion by allowing the case to proceed to trial without

adequate time for him to conduct discovery. However, the record shows that Anthony

entered a personal appearance, waived service of process, and acknowledged his status as a

defendant. In fact, Anthony raised no objection to the order joining him as a defendant. The

decision to grant or deny a continuance is within the sound discretion of the trial court and

will not be reversed absent an abuse of discretion that resulted in a manifest injustice.

Counsel for the Richeys deposed Anthony and his father, Tim, a little less than four years

before the initial date set for trial. On the initial date set for the trial, the chancellor granted a

continuance at Anthony’s request. Anthony entered a personal appearance and agreed to the

terms of the continuance on the record, acknowledging that he understood that any attorney

he hired would represent him subject to the trial setting, and that the chancellor would not

grant a continuance based on any conflict that Anthony or his attorney might have with that

date. Moreover, Anthony executed a written waiver of service of process and entered a

voluntary appearance and acknowledged the trial court’s prior order joining him as a

defendant without objection. As a result, the chancellor’s denial of Anthony’s second request

for a continuance did not cause Anthony to suffer manifest injustice.

Issue 2: Adverse possession



CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION

Judge Wilson

Anthony argues that the Richeys failed to prove each element of their adverse possession

claim by clear and convincing evidence and, as a result, the chancellor erred in granting the

Richeys’ motion to quiet and confirm title. For possession to be adverse it must be under

claim of ownership; actual or hostile; open, notorious, and visible; continuous and

uninterrupted for a period of ten years; exclusive; and peaceful. Anthony argues that the

Richeys failed to show that they possessed the land to the exclusion of others. Anthony also

argues that the Richeys’ peaceful use and possession of the land was disrupted by Tim Little

in 2010, when he hired an attorney to send the Richeys a cease and desist letter after the

Richeys cut timber from the property at issue. He also claims that the Richeys use of the

property was not continuous and uninterrupted for ten years. However, there is substantial

evidence in the record to support the chancellor’s determination that the Richeys proved

adverse possession by clear and convincing evidence.

Issue 3: Deposition testimony

Anthony argues that the trial court abused its discretion in allowing the deposition of the

Richeys’ daughter to be read into evidence. Anthony maintains that he failed to receive

notice of the deposition, nor was he present or represented by counsel. At the time of the

deposition, Anthony had been joined as a party pursuant to the agreed order. In making her

decision to quiet and confirm title in favor of the Richeys, the chancellor relied upon

testimony from all of the witnesses, as well as various items admitted into evidence, such as

photographs, a survey of the property, Conservation Reserve Program records, as well as the

chancellor’s own observations made when visiting the disputed property. The daughter’s

testimony was cumulative with the testimony of other witnesses. Thus, the chancellor did

not abuse her discretion in admitting the deposition testimony.



Attorney(s) for Appellant: S. WAYNE EASTERLING, GERALD ALAN DICKERSON

Attorney(s) for Appellee: DOUGLAS G. MERCIER, JESSICA LEIGH DILMORE

Topics: Medical malpractice - Jurisdiction - Dismissal for failure to prosecute -

M.R.C.P. 54(b) - M.R.C.P. 58 - M.R.C.P. 79(a) - M.R.C.P. 41(b) - URCCC

4.04(A) - URCCC 4.03(2)


Trial Judge: HON. PRENTISS GREENE HARRELL

HAVARD v. SUMRALL, NO. 2016-CA-01585-COA CONSOLIDATED WITH NO. 2015-CA-00138-

COA


Trial Court: LAMAR COUNTY CIRCUIT COURT

Civil

Holding: Affirmed.

Facts: James and Margaret Havard filed a medical-malpractice complaint against Tanelle Sumrall.

The Havards then amended their complaint to include Sumrall’s employer, the Akeso Group.

Sumrall moved to dismiss the Havards’ claim against her for failure to prosecute. The

circuit court granted the motion to dismiss, and the Havards appeal.

Analysis: Issue 1: Jurisdiction

The Havards argue that the court erred in dismissing their lawsuit for failure to prosecute.

Sumrall argues that the circuit court’s order of dismissal fails to constitute a final judgment

because the court never certified it as final under M.R.C.P. 54(b) and because the judgment

failed to adjudicate the merits of the Havards’ claims against both her and the Akeso Group.

Sumrall’s argument fails to address that the Havards only raise this appeal after the circuit

court’s judgment against the Akeso Group finally adjudicated all the remaining claims

among the parties. M.R.C.P. 58 provides that a judgment finally resolving all claims as to all

parties constitutes a final judgment when entered pursuant to M.R.C.P. 79(a), even if not

properly titled. After the circuit court signed its judgment awarding the Havards damages

against the Akeso Group, the circuit clerk, in accordance with Rule 79(a), stamped the

judgment as filed on November 1, 2016, and entered the judgment into the general docket on

the same date. The Havards then filed their appeal on November 7, 2016, and raised as error

the circuit court’s January 2015 dismissal of their complaint against Sumrall. Thus, the

Havards timely raised the instant appeal and claim of error within thirty days of entry of the

judgment that finally resolved all claims among all the parties, and the appellate court has

jurisdiction to review the appeal.

Issue 2: M.R.C.P. 41(b) dismissal

The Havards challenge the circuit court’s finding that “a clear record of delay and dilatory

conduct” warranted the dismissal of their claim against Sumrall. Delay alone may suffice for

a dismissal under Rule 41(b), and factors other than delay are not required. Here, the circuit

court relied on the passage of time to find delay, determining that the Havards failed to

prosecute their action against Sumrall for almost two years. At the hearing on Sumrall’s

motion to dismiss, the Havards’ attorney admitted that an almost two-year delay had



occurred, but he contended that mitigating factors existed. He explained that both he and his

client had dealt with serious medical issues that had resulted in the delay. He further argued

that Sumrall had suffered no prejudice from the delay. In the almost two-year period

following the filing of their amended complaint, the Havards submitted no discovery

requests to Sumrall and disclosed no expert witnesses to support their medical-malpractice

claim. The Havards failed to begin their discovery until well beyond the deadlines

established by URCCC 4.04(A). In addition, the Havards’ response to Sumrall’s motion to

dismiss was reactionary and not within the ten-day time limit set by URCCC 4.03(2).

Sumrall filed her motion to dismiss on October 21, 2014, and the Havards failed to respond

until January 5, 2015, the day of the hearing on Sumrall’s motion. Thus, the record supports

a finding of a clear record of delay since the Havards failed to begin their own discovery

until approximately two years after Sumrall answered the amended complaint and since they

only did so after Sumrall filed her motion to dismiss for failure to prosecute. The Havards

also argue the circuit court should have considered a lesser sanction than dismissal. Based

on the clear record of delay and reactionary conduct the Havards displayed in this case, there

is no abuse of discretion in the circuit court’s dismissal with prejudice since it served the best

interests of justice.



Attorney(s) for Appellant: JAK MCGEE SMITH

Attorney(s) for Appellee: JASON D. HERRING, MICHAEL SPENCER CHAPMAN

Topics: Divorce: Adultery - Contempt - Alcohol provision - Attorney's fees -

Modification of visitation

Author: Chief Judge Lee


SMITH v. MULL, NO. 2016-CA-00524-COA


Trial Court: LEE COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Kim Mull was granted a divorce from Mike Smith on the ground of adultery, and the parties

were awarded joint legal custody of their two children, with Kim receiving physical custody

and Mike receiving liberal rights of visitation. When Kim and the children moved to

Georgia, the parties modified their visitation agreement to meet in Leeds, Alabama, a

halfway point between Tupelo and Atlanta. Eventually, however, problems arose with the

visitation-exchange location. Mike petitioned the chancery court to modify the exchange

location and order Kim to meet him “at the most convenient location for the exchange of the

minor children.” Kim counterclaimed asserting that Mike was in contempt of the divorce

decree after bringing the children to a private neighborhood cookout where others were

consuming alcohol. Both parties agreed to an alcohol provision in an agreed temporary

order, and neither appealed this specific provision in the final judgment following their

divorce. The chancellor found that modification of the exchange point was unnecessary

based upon the evidence presented. The chancellor further found that Mike had violated the

alcohol provision of the divorce decree by having the children in the presence of others using

alcohol when he knew beforehand that alcohol would be served. The chancellor awarded

Kim attorneys’ fees for the contempt complaint against Mike. Mike appeals.

Analysis: Issue 1: Contempt

Mike challenges the chancellor’s finding that he was in contempt of the divorce decree’s

alcohol provision. Specifically, he argues the language of the alcohol provision is vague and

ambiguous. Mike admitted that he took the children to a cookout at his friend’s house where

people were consuming alcohol in the presence of the minor children. He also admitted that

Kim had complained to him about the cookout and warned him that this violated the court

order—specifically the alcohol provision. Mike further admitted that there were, in fact, a

couple of occasions where he took the children to cookouts where people were consuming

alcohol. The chancellor, having witnessed the testimony of the parties, found that Mike had

willfully violated the court’s order. Mike argues that the language is so vague and

ambiguous that, as worded, it would, for example, disallow him from taking his children to a

restaurant where alcohol is consumed. The chancellor, however, noted that Mike’s alcohol

use was an issue in the divorce proceedings, and the alcohol-restrictive provision was

intended “to address the special circumstances developed by the credible proof to serve the

best interest of the children[.]” The terms Mike was under court order to abide by were clear

and specific. The substantial credible evidence shows that Mike willfully violated the



court’s order. Thus, the chancellor did not abuse her discretion by citing Mike for contempt.

Issue 2: Attorney’s fees

Mike argues that because the contempt citation was erroneous, it was improper for the

chancellor to award Kim attorneys’ fees for the contempt complaint. When a party is held in

contempt for violating a valid judgment of the court, then attorneys’ fees should be awarded

to the party that has been forced to seek the court’s enforcement of its own judgment. Thus,

there is no error.

Issue 3: Visitation

Mike argues that the chancellor erred in failing to modify the exchange location from Leeds

to Chattanooga when he is working or visiting in Kentucky. To modify a visitation order, it

must be shown that the prior decree for reasonable visitation is not working and that a

modification is in the best interest of the child. Here, the chancellor ultimately held that

Mike failed to show that visitation was not working to serve the best interests of the

children. The record supports the chancellor’s holding.



Attorney(s) for Appellant: PHILLIP LLOYD LONDEREE

Attorney(s) for Appellee: HARRY RAY LANE

Topics: Divorce: Irreconcilable differences - Child custody - Albright factors - Joint

physical custody


Trial Judge: HON. DEBORAH J. GAMBRELL

WEBER v. WEBER, NO. 2016-CA-01339-COA


Trial Court: FORREST COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Dakota Weber and Krystal Weber had a son together. At the time of their son’s birth,

Dakota was eighteen years old and Krystal was seventeen years old, so they lived with

Dakota’s mother and stepfather. Dakota and Krystal married in 2014, but separated eight

months later. Dakota filed a complaint for divorce, alleging several fault grounds and

requesting custody of the couple’s minor child. Ultimately, the parties withdrew their fault

grounds and agreed to an irreconcilable-differences divorce. They entered into a property-

settlement agreement, reserving the issues of custody, visitation, and child support for the

chancellor’s consideration. The chancellor awarded Krystal physical custody of the minor

child, with both parties to have legal custody. The chancellor ordered Dakota to pay $300 per

month in child support and set a visitation schedule. Dakota appeals.

Analysis: Issue 1: Albright factors

Dakota argues that the chancellor erred in applying the Albright factors. The chancellor

found that seven factors were neutral, three factors favored Krystal, and one factor was not

applicable due to the child’s age. Dakota questions the chancellor’s ruling on the following

factors that he believes weigh in his favor: continuity of care, parenting skills, the

willingness and capacity to provide primary childcare, and the stability of the home

environment. Dakota argues that he spent more time with the minor child after the

separation; thus, he was the primary caregiver. However, this factor focuses on the time

period prior to the separation. Here, Dakota admitted during trial that due to his work

schedule, Krystal was the primary caregiver prior to their separation. Dakota contends that

he offered more proof of his parenting skills; thus, this factor should favor him. However,

evaluating the credibility of witnesses is the chancellor’s responsibility. The chancellor

determined that Krystal’s testimony was more credible in this instance. Dakota argues that

Krystal’s decision not to keep the child for her full visitation shows an unwillingness to

provide primary childcare. After the parties separated, they agreed to alternate weekly visits

beginning and ending on Sunday. Krystal admitted that she sent the minor child early to his

visitation with Dakota on several occasions. The evidence showed that on some of these

occasions, Krystal was sick, was working late, or did not have reliable transportation or

childcare. Dakota contends that he has lived with his mother and stepfather since his

separation, while Krystal has lived several places since the separation. As a result, Dakota

claims his home environment is more stable. The chancellor did recognize that after the

parties separated, Krystal lived in three separate locations for short periods before moving in



with her mother and stepfather. The chancellor was concerned that Dakota’s girlfriend had

lived with him in his mother’s house for over one year, moving out prior to the trial. The

minor child slept in a bed next to the bed Dakota and his girlfriend shared. The chancellor

made on-the-record findings as to every Albright factor, and there is no evidence that her

decision was manifestly in error or based on an erroneous legal standard.

Issue 2: Joint custody

Dakota argues that the chancellor should have awarded the parties joint physical custody.

Here, neither party requested joint physical custody. And the chancellor noted her concerns

about Dakota and his girlfriend’s living arrangements prior to trial and Dakota’s lack of

financial support for his son during the separation. Thus, there is no error.



Attorney(s) for Appellant: DEAN HOLLEMAN

Attorney(s) for Appellee: NITA LOUISE CHASE, TANYA MITCHELL GRAHAM

Topics: Divorce - Prenuptial agreement - Attorney's fees - Sanctions - M.R.C.P. 11 -

Litigation Accountability Act - Equitable distribution - Line of credit - Bank

accounts - Income tax refund - Child support guidelines - Section 43-19-

101(1) - Visitation changes - M.R.C.P. 59 - Memorialize agreement

Author: Judge Barnes

Trial Judge: HON. G. CHARLES BORDIS IV

BLACK v. BLACK, NO. 2016-CA-00104-COA


Trial Court: JACKSON COUNTY CHANCERY COURT

Civil

Holding: Affirmed in part, reversed and remanded in part.

Facts: Arthur and Alicia Black were divorced in 2014. The chancery court found the prenuptial

agreement signed by the parties valid and enforceable, resulting in the marital estate being

equitably distributed according to its terms. Arthur appeals.

Analysis: Issue 1: Attorney’s fees

Arthur argues that the chancellor erred in failing to award him sanctions and attorney’s fees

for defending Alicia’s attacks on the validity of the prenuptial agreement. A claim is

frivolous when, objectively speaking, the pleader or movant has no hope of success. The

same test is used to determine whether a filing is frivolous under both M.R.C.P. 11 and the

Litigation Accountability Act. Arthur asserts that Alicia and her attorney maliciously and

recklessly attacked the validity of the parties’ prenuptial agreement. The foundation for his

argument derives from his analysis of the attorney’s billing entries to Alicia. Throughout

Alicia’s attacks on the validity of the premarital agreement, she questioned, among other

things, her initials or signatures at the bottom of each page of the prenuptial agreement, as

the original agreement could not be located, and neither party had made conscious efforts to

locate it. Instead, both parties were in possession of photocopied duplicates. The chancellor

found Alicia’s attacks on the validity of the photocopied duplicates were neither frivolous

nor without substantial justification. In light of the unavailability of the original prenuptial

agreement, the chancellor did not abuse his discretion in denying Arthur’s request for

sanctions and attorney’s fees.

Issue 2: Equitable distribution

Arthur argues that certain marital assets and debts were not properly allocated in accordance

with the terms of the prenuptial agreement. Specifically, he argues that the chancellor erred

with respect to a $159,700 line of credit, a Wells Fargo savings account, 2013 income-tax

returns, and the awarding of attorney’s fees to Alicia. When dividing the marital estate, the

chancellor omitted a $159,700 line of credit jointly owed by the parties and secured by

Arthur’s premarital home. This debt was listed on Arthur’s and Alicia’s Uniform Chancery

Court Rule 8.05 financial statements, and both parties testified during trial that the debt was

jointly owed. The line of credit was acquired through Wells Fargo during the parties’



marriage. Alicia contends that the prenuptial agreement did not specifically address marital

debts and, therefore, it was within the chancellor’s equitable discretion to allocate the line of

credit according to equitable principles. Because the prenuptial agreement was found to be a

valid and enforceable contract, the marital debt should have been included in the

chancellor’s equitable distribution of the marital estate, and its omission was erroneous.

Thus, the debt – if taken alone – should have been divided in accordance with the parties’

agreement (i.e., 70% to Arthur, and 30% to Alicia). Its omission, however, resulted in the

debt being allocated to neither party. Because the failure to include and divide this $159,700

joint debt in accordance with the prenuptial agreement was erroneous, this issue is reversed

and remanded. The chancellor awarded to Alicia, as separate property, four bank accounts,

including Wells Fargo account #7415. At the time Alicia filed her 8.05 financial declaration,

the account possessed $45,137.98. Arthur argues the chancellor’s finding as to this account

was not supported by substantial evidence in the record. The record contains substantial

evidence to support the chancellor’s allocation of this account to Alicia. The chancellor had

itemized accounting statements for Wells Fargo account #7415, which he concluded was

used “for the benefit of the children.” Arthur argues the chancery court erred in its equitable

division of 2013 income-tax refund. The chancellor determined that according to the

prenuptial agreement, Arthur was to receive 70% of the refund when disbursed, with Alicia

receiving 30%. But during the post-trial hearing, Arthur presented evidence in relation to

what the “marital portion” of the overall tax refunds were – because Arthur eventually filed

his 2013 tax return as “married filing separately.” As Arthur points out, the chancellor did

not make specific findings as to the precise amounts each party was to receive under the

terms of the agreement. Because there was ample evidence from which the chancellor could

have made these calculations, it is proper to remand this issue to the chancery court to make

specific findings regarding the equitable division of the 2013 income-tax refunds in

accordance with the prenuptial agreement’s terms. The chancery court awarded Alicia

attorney’s fees in the amount of $40,000. Generally, attorney’s fees should only be awarded

where the moving party has demonstrated an inability to pay. Arthur argues that under the

prenuptial agreement, Alicia waived an equitable right to attorney’s fees. The stated purpose

of the prenuptial agreement, however, was to “fix and determine the rights accruing to each

of them by reason of their marriage with respect to property and estate of the other and with

respect to the right of support of maintenance from the other.” The right to attorney’s fees

did not accrue to Alicia as a property right by virtue of marriage. Furthermore, this action

involved issues not covered by the terms of the prenuptial agreement, such as child support

and payment of the children’s educational expenses and insurance. Arthur’s remaining

argument that Alicia had the ability to pay her attorney’s fees because she could liquidate her

401(k) has been rejected by the Court on numerous occasions. Thus, there is no error in the

chancellor’s award of attorney’s fees.

Issue 3: Child support

Arthur takes issue with the chancellor’s deviation from the statutory guidelines in awarding

child-support payments, as well as the chancellor’s findings regarding tuition costs.

According to section 43-19-101(1), a noncustodial parent should pay 20% of his or her

adjusted gross income as child support for the benefit of two minor children. Where a

noncustodial parent’s adjusted gross income exceeds $100,000 per year, “the court shall

make a written finding in the record as to whether or not the application of the guidelines

established in this section is reasonable.” Here, the chancellor found that Arthur’s annual

adjusted gross income far exceeded $100,000. It was determined through financial

statements that Arthur’s monthly adjusted gross income amounted to $46,353. As a result,

the chancellor found the application of the guidelines unjust. Based upon each party’s



CONCUR IN PART, DISSENT IN PART WITHOUT SEPARATE OPINION

Chief Judge Lee

CONCUR IN PART, DISSENT IN PART

Judge Wilson joined by Chief Judge Lee and Presiding Judges Irving and Griffis

awarded assets and wage-earning capacity, the chancellor ordered Arthur to pay $6,500 per

month in child-support payments. Additionally, in light of the parties’ agreement to maintain

the children’s private schooling, Arthur was ordered to pay $3,000 per month ($36,000

annually) towards private-school education of the minor children and their extracurricular

activities. There was substantial evidence in the record to support the chancellor’s findings.

The chancellor took into account Alicia’s wage-earning capacity in making his determination.

Issue 4: Visitation

Arthur argues that the chancellor erred in failing to include visitation changes specifically

agreed upon during the M.R.C.P. 59 motions hearing in its post-trial order. Reviewing the

original visitation provisions in conjunction with the subsequent on-the-record agreement

between Arthur and Alicia, this is proper. At the hearing on the Rule 59 motions, Arthur and

Alicia verbally revised the provisions of Arthur’s visitation privileges with the children.

None of these revisions were documented in the chancery court’s post-trial order except to

note that the visitation-exchange times would be on Eastern Standard Time. Due to the

material changes to dates, as well as which party shall receive the children during odd- or

even-numbered years, such memorialization requested by Arthur is necessary. Thus, this

issue is remanded for the chancery court to memorialize the terms of the parties’ final

agreement regarding Arthur’s visitation privileges.



Attorney(s) for Appellant: JOHNELL MOSBY MATTHEWS, CHRYSTAL MICHELLE MATTHEWS

Attorney(s) for Appellee: WAYNE DOWDY

Topics: Real property - Constructive trust - Statute of limitations - Section 15-1-39 -

Accrual of right to enforce constructive trust - Bona fide purchasers -

Affirmative defense

Author: Judge Fair

Trial Judge: HON. J. LARRY BUFFINGTON

MANNING v. PERRY, NO. 2016-CA-00444-COA


Trial Court: PIKE COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: A seventy-eight acre parcel of land in Pike County was once owned by Henry and Addie

Manning. Part of an eighty-six acre parcel that had been titled in their names, they deeded it

to their son Ed in 1994. Following his death in 2011, his widow and sole devisee, Joan

Manning, sold the seventy-eight acre parcel to Robert and Paige Perry in a transaction

financed by the Pike National Bank. Ed’s siblings, claiming Ed was only the trustee of their

parents’ former land, sued Joan, the Perrys, and the Bank for an adjudication of their

ownership of the property as beneficiaries of a constructive trust of which Ed had been

trustee. The chancellor granted motions for partial summary judgment filed by the Perrys and

the Bank, dismissing the Perrys and the Bank as defendants. The chancellor certified that his

partial summary judgment was final, and the Mannings have appealed as to the Perrys. Joan

remains the sole defendant, litigating title to the remaining 9.05 acres of the original eighty-

six on which the Manning family home is located.

Analysis: The Manning siblings argue that the 1994 deed is an implied or constructive trust and not a

simple quitclaim deed, which it appears to be on its face. The statute of limitations

applicable to actions involving constructive trusts, section 15-1-39, provides that “[b]ills for

relief, in case of the existence of a trust not cognizable by the courts of common law and in

all other cases not herein provided for, shall be filed within ten years after the cause thereof

shall accrue and not after . . . .” The right to enforce an implied or constructive trust accrues

at the time of performance of the act from which the trust results. Here, the key question is

what chargeable act caused the statute to run – the filing of the 1994 deed, Henry’s death in

1994, Addie’s death in 1998, Ed’s death in 2011, or the ancilliary probate of Ed’s will in

June 2013. Section 15-1-39 could have begun to run in 1994, when the deed was executed

and recorded, giving notice to the world of an unrestricted transfer of all their property by

Henry and Addie to their son Ed. More likely, however, the family logically intended for Ed

to hold title and perform his duties as trustee by deeding over the property to himself and his

siblings when Addie died. Had the property remained in their hands until the last to die of

Addie and Henry, then the statute would begin to run on Addie’s death in 1998. At that point

any or all of the siblings had the right to clarify, by litigation if necessary, the title and insist

Ed deed and vest each of his siblings with a full child’s part of the land to which they were

entitled (and which they would have received on her death by intestate succession). Such a

process would comport with intent of the members of the family if that intent was to avoid

probate and, as well, provide a clear title to the children in accord with such an intent. So



CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION

Judge Wilson

Ed’s siblings had until 2008 to make any conflicting claim, and specifically a claim for an

implied or constructive trust. Instead, they waited until 2013, nearly twenty years later.

Consequently, their claim is barred. The Manning siblings hinge their claims on the assertion

that the Perrys were not bona fide purchasers of the property. A real estate purchaser’s claim

to be a bona fide purchaser for value without notice is an affirmative defense and must be

sustained by competent proof. The Perrys failed to raise an affirmative defense regarding

their purchaser status, and they completely ignore the issue on appeal. Because the statute of

limitations is dispositive, this issue is moot.



Attorney(s) for Appellant: CAROL ANN ESTES BUSTIN

Attorney(s) for Appellee: RISHER GRANTHAM CAVES, TERRY L. CAVES

Topics: Divorce - Habitual cruel and inhuman treatment - Habitual drunkenness -

Findings of fact - Deposition testimony - M.R.C.P. 32(a)

Author: Presiding Judge Irving

Trial Judge: HON. FRANKLIN C. MCKENZIE JR.

BAGGETT v. BAGGETT, NO. 2016-CA-00537-COA


Trial Court: WAYNE COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Renee Baggett filed a complaint for divorce from her husband James Baggett on the bases of

habitual cruel and inhuman treatment and habitual drunkenness, or, alternatively,

irreconcilable differences. The chancery court dismissed her complaint after a short trial.

Renee appeals.

Analysis: Renee argues that the chancellor erred in dismissing her complaint because she presented

overwhelming evidence in favor of both habitual cruel and inhuman treatment and habitual

drunkenness. To obtain a divorce on the grounds of habitual cruel and inhuman treatment,

the offended spouse must show by a preponderance of the evidence that the offending

spouse’s behavior either endangers life, limb, or health, or creates a reasonable apprehension

of such danger, rendering the relationship unsafe for the party seeking relief, or is so

unnatural and infamous as to make the marriage revolting to the non-offending spouse and

render it impossible for that spouse to discharge the duties of marriage, thus destroying the

basis for its continuance. The offended spouse must show a causal connection between the

offending spouse’s conduct and the impact on the offended spouse. Although in cases of

violence a single incident may be sufficient for a divorce, generally the plaintiff must show a

pattern of conduct. As the chancellor noted in this case, Renee only presented one instance

of domestic violence at trial. While egregious, this incident occurred over ten years prior to

the filing of Renee’s complaint and was not the cause of the separation of the parties. And

Renee allowed James back into the home after he was released from jail. Without more

evidence to suggest that the incident was the direct cause of Renee and James’s separation or

that James exhibited a pattern of violent conduct, the evidence provided by Renee was

insufficient to meet the standard required for a divorce on the basis of habitual cruel and

inhuman treatment. A court may grant a divorce on the ground of habitual drunkenness if

the plaintiff proves that the defendant frequently abused alcohol; the alcohol abuse

negatively affected the marriage; and the alcohol abuse continued at the time of the trial.

While Renee presented multiple witnesses at trial who testified that James drank regularly

and James even conceding his regular alcohol use at trial, the chancellor did not abuse his

discretion in dismissing Renee’s complaint for a divorce based on this ground. It was within

the chancellor’s discretion to find that James’s actions do not rise to the level of conduct

have been required for a divorce to be granted on the basis of habitual drunkenness. Renee

also argues that the chancellor abused his discretion in failing to make findings of fact and

conclusions of law, because the case “was hotly contested and the facts were greatly in

dispute.” However, the chancellor did not err in failing to make findings of fact or




Judge Wilson

DISSENT WITHOUT SEPARATE OPINION

Presiding Judge Griffis and Judges Barnes and Carlton

conclusions of law. Renee did not request the chancellor to do so. In addition, the facts

were neither hotly contested, greatly in dispute, nor complex so as to require the chancellor

to have done so without a request. Renee also argues that the chancery court erred in

excluding the proffered deposition testimony of Dr. Patel. M.R.C.P. 32(a) provides that

deposition testimony may be used when a witness is not available to testify. Here, the

document sought to be offered into evidence was hardly a deposition, as Renee claims.

James’s counsel was unable to attend the deposition due to such short notice and, therefore,

did not participate in the questioning of Dr. Patel. As such, Dr. Patel’s testimony was more

of a statement than a deposition, and the chancellor did not abuse his discretion in excluding

it.



Attorney(s) for Appellant: MICHAEL LEE DULANEY

Attorney(s) for Appellee: JASON D. HERRING, MICHAEL SPENCER CHAPMAN

Topics: Divorce: Irreconcilable differences - Equitable distribution - Alimony -

Ferguson factors - Transcript of oral ruling - Armstrong factors



SULLIVAN v. SULLIVAN, NO. 2015-CA-01513-COA


Trial Court: LEE COUNTY CHANCERY COURT

Civil - MODIFIED OPINION ON MOTION FOR REHEARING


Judge Barnes

Holding: Reversed and remanded.

Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion.

Janice Sullivan filed a complaint for divorce against Wayne Sullivan. The parties consented

to an irreconcilable-differences divorce and submitted the issues of equitable distribution,

alimony, and attorney’s fees to the chancellor. The chancellor granted the divorce and

divided the marital assets. The chancellor also awarded Janice $1,360 per month from

Wayne’s retirement account “for up to twelve years effective September 1, 2015.” Janice

appeals.

Analysis: Janice’s and Wayne’s briefs both state the chancellor made an oral ruling in this case, but a

transcript was not included in the designated record. The chancellor’s written judgment does

not reference the oral ruling, nor does it even refer to the Ferguson factors. And it is unclear

as to whether portions of the chancellor’s judgment were made as equitable distribution or

alimony. Even if the transcript of the oral ruling had been made part of the record, the record

requires the judgment be reversed and remanded. Here, the record does not show that the

chancellor adequately considered or applied the Ferguson factors. Thus, the case is reversed

and remanded for a proper application of the Ferguson factors. Janice also argues that the

judgment is unclear as to whether the award of $1,360 per month from Wayne’s state

retirement is alimony. Absent specific findings of fact, the Court is unable to give even

discretionary review as to whether the chancellor fully considered the division of assets and

whether the award of state retirement was sufficient to allow Janice to support herself,

especially considering Janice was not employed at the time of the divorce, and apparently her

nursing license had expired. A Ferguson-factor analysis would allow appellate review. If

the award was in fact alimony, the chancellor failed to make specific findings as required

under Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993). Failure to make an on-the-

record Armstrong analysis is manifest error.





Attorney(s) for Appellant: MICHAEL ADELMAN

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER

Topics: Murder - Sufficiency of evidence - Corpus delicti - Double jeopardy -

Constitutionality of section 99-19-83 - M.R.E. 404(b)

Author: Judge Westbrooks

Trial Judge: HON. ROBERT B. HELFRICH

COLLINS v. STATE, NO. 2016-KA-01002-COA


Trial Court: FORREST COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Jairus Collins was convicted of murder and sentenced as a habitual offender to life without

parole. He appeals.

Analysis: Issue 1: Sufficiency of evidence

Collins argues that there was insufficient evidence to establish that he committed the crime,

and that the State failed to establish he was in possession of the gun. The State may prove a

crime solely by circumstantial evidence. The State established that Collins knew the victim

through the testimony of Collins’s brother, who testified that he introduced Collins and the

victim. The victim’s friend testified that he gave his .40-caliber HiPoint pistol to Collins to

repair approximately three weeks prior to the murder and that Collins never returned the gun

to him. The purchase receipt of the gun contained the pistol’s serial number. A crime-scene

investigator testified that a .40-caliber shell casing was found under some leaves close to

where the body was found. The investigator stated that although the serial number had been

partially scratched off of the pistol, he was able to retrieve its serial number and the victim’s

friend was identified as the owner of the pistol used to shoot the victim. The State also

presented evidence from the cell-phone records that Collins was in close proximity to the

victim prior to her death. Considering the evidence in the light most favorable to the State,

there was sufficient evidence to convict Collins of the victim’s murder.

Issue 2: Corpus delicti

Collins argues that the State failed to prove the second element of the corpus delicti in the

case. To establish the corpus delicti in a homicide case, there must be proof of death of a

human being and a criminal agency causing that death. In this case, there was undoubtedly

the death of a human being. And the testimony of Dr. LeVaughn, chief medical examiner of

the State of Mississippi, satisfied the second element of the corpus delicti in this case. He

testified that the victim’s body had four skin defects representing two perforating gunshot

wounds. Dr. LeVaughn described these defects as two entry wounds and two exit wounds

and that the cause of death was multiple gunshot wounds. Evidence of trajectory and path of

a bullet sufficiently establishes criminal agency.

Issue 3: Double jeopardy




Judge Wilson

Collins argues that the Double Jeopardy Clause bars a second trial, as the Supreme Court

determined in a prior appeal that there was insufficient evidence to support his verdict.

However, that was not the Supreme Court’s holding. Further, when a criminal defendant

successfully obtains a reversal and remand of the circuit court’s judgment, granting a new

trial does not amount to double jeopardy.

Issue 4: Constitutionality of section 99-19-83

Collins argues that the Court should consider whether section 99-19-83 is constitutional in

light of M.R.E. 404(b). Collins asserts that Rule 404(b) applies during a sentencing hearing.

However, he fails to cite any authority supporting this assertion which bars the issue on

appeal. Moreover, in his brief, Collins concedes that the Mississippi Supreme Court and the

Court of Appeals have previously held that section 99-19-83 is constitutional.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: KATY TAYLOR GERBER

Topics: Aggravated assault - Peremptory challenges - Sufficiency of evidence - Jury

instructions - Prosecutorial misconduct


Trial Judge: HON. JON MARK WEATHERS

MISKELL v. STATE, NO. 2016-KA-01306-COA


Trial Court: FORREST COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Vernell Miskell was convicted of aggravated assault and sentenced to twenty years. He

appeals.

Analysis: Issue 1: Peremptory challenges

Miskell argues that the trial court erred in determining that the State’s reasons for striking

African American jurors were race neutral. During the State’s peremptory strikes, defense

counsel only objected to the State striking prospective juror 5, an African American woman,

based on the belief that a peremptory strike was being used as a result of discrimination.

After defense counsel requested a race-neutral reason for striking prospective jurors, the trial

court determined that defense counsel had not established a prima facie case of

discrimination. However, the State still provided race-neutral reasons for striking the

prospective juror. The court found that the fact that she wasn’t paying attention and that she

worked the late shift and got off late were sufficient race-neutral reasons. A review of the

record shows that the trial court’s determination that no Batson violation occurred was not

clearly erroneous or against the overwhelming weight of the evidence.

Issue 2: Sufficiency of evidence

Miskell argues that the State failed to prove the elements of the crime of aggravated assault

beyond a reasonable doubt. Miskell’s alleged accomplice, also testified that while he was in

the car retrieving marijuana to sell to Pollard, he looked up and saw that Miskell “had a gun

in [Pollard’s] face, and [Pollard] tr[ied] to run. Shot him.” Harris explained that at this point,

Miskell and Pollard were standing right in front of the car, and he observed Miskell fire shots

at Pollard. Hurd, the DJ at the party, also testified that immediately after the shooting,

Pollard stated that “N.O.” shot him. Hurd testified that “N.O.” is Miskell’s nickname. Thus,

the evidence is sufficient to support the verdict.

Issue 3: Jury instructions

Miskell argues that the trial court erred in granting jury instruction S-5 and in denying

proposed jury instruction D-7. Miskell argues that the trial court erred in granting jury

instruction S-5 because the instruction set forth an element outside of that required for

proving aggravated assault. The Court of Appeals has found that an identical instruction



provided a correct statement of the law. With regard to proposed jury instruction D-7, the

trial court found that the instruction was covered by jury instruction S-1. Therefore, this

issue is without merit.

Issue 4: Prosecutorial misconduct

Miskell argues that the prosecutor made inappropriate comments during closing argument.

Prosecutors are not allowed to employ tactics which are inflammatory, highly prejudicial, or

reasonably calculated to unduly influence the jury. However, the prosecutor may comment

upon any facts introduced into evidence, and he may draw whatever deductions and

inferences that seem proper to him from the facts. During his closing argument, the

prosecutor claimed that Miskell was at a gang-related party. Prosecutors may not encourage

juries to use their verdict to send-a-message to the public or to other potential criminals.

Here, the record shows that the statements were invited by the defense counsel and that the

prosecutor commented on the actual evidence offered at trial. The prosecutor’s statements

conveyed that even bad people, including gang members, can be victims, and that shooting a

gang member is a crime that should be accounted for under the law. The record also shows

that the prosecutor commented on the actual testimony provided at trial by Miskell and other

defense witnesses. Thus, the prosecutor’s comments during closing argument failed to cause

unjust prejudice to Miskell.



Attorney(s) for Appellant: CYNTHIA ANN STEWART

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE

Topics: Post-conviction relief - Ineffective assistance of counsel - Evidentiary hearing

Author: Presiding Judge Irving

Trial Judge: HON. TOMIE T. GREEN

BIAS v. STATE, NO. 2016-CA-00682-COA


Trial Court: HINDS COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Jake Bias pled guilty to statutory rape and was sentenced to twenty years, with five years

suspended, three years of supervised probation, and fifteen years to serve. Bias filed a

motion for post-conviction relief which was denied. Bias appeals.

Analysis: Issue 1: Ineffective assistance of counsel

Bias argues that his trial counsel was constitutionally ineffective, because he failed to note

and advise Bias of the fact that he had not tested positive for any STDs, nor had he been

treated for them; failed to note that “the evidence completely contradicts the confession,

raising the specter of false confession”; and “failed to raise the child’s exposure to numerous

other men.” A voluntary guilty plea waives claims of ineffective assistance of counsel

except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the

guilty plea. Bias raises no issue regarding the voluntariness of his guilty plea. As such, there

is no merit to this issue. And while it is true that there is no evidence in the record of Bias

testing positive for an STD, his confession that he was infected with an STD makes this

issue moot.

Issue 2: Evidentiary hearing

Bias argues that the trial court erred in failing to grant him an evidentiary hearing, because

there are serious conflicts in the evidence that suggest his innocence. Bias emphasizes the

fact that, based on the victim’s medical reports, evidence of penetration is inconclusive and

her hymen was still intact. However, no hearing is required when, based on the record of the

guilty plea hearing, it is clear that the petitioner is entitled to no relief. Here, the plea-

hearing transcript is in the record. After hearing the State’s factual basis, the court asked

Bias, “Did you commit those acts?” Bias replied, “Yes, ma’am.” Thus, there is no error.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: W. DANIEL HINCHCLIFF

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE

Topics: Aggravated assault - Lindsey brief


Trial Judge: HON. ALBERT B. SMITH III

MCCADNEY v. STATE, NO. 2016-KA-01101-COA


Trial Court: BOLIVAR COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Benjamin McCadney was convicted of aggravated assault with a firearm enhancement. He

was sentenced to twenty years, with an additional five-year sentence for the firearm

enhancement. He appeals.

Analysis: McCadney’s appellate counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743

(Miss. 2005). After examining the record, he found no arguable issues for appeal. An

independent review of the record has not revealed any arguable issues that would require

supplemental briefing. Thus, the conviction and sentence are affirmed.



MISSISSIPPI COURT OF APPEALS OPINIONS …...MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 11/7/2017 Attorney(s) for Appellant: W. TERRELL STUBBS, LAUREN ELIZABETH CAVALIER

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