Hand down list

Itta Bena Plantation III and Benchmark Insurance Company v. Raymond L. Gatesworkers compensation – Gates suffered a work-related back injury while employed as a tractor driver for Itta Bena Plantation.  Gates’s employer stipulated that the injury was compensable and that his average weekly wage at the time was $718.05.  After a hearing, the AJ found that Gates had suffered a 75% loss of wage-earning capacity and awarded Gates $359.02 per week in permanent partial disability  benefits beginning July 13, 2015, for 450 weeks.  The Employer appealed to the Commission, which affirmed the AJ’s findings.   The Employer appealed, arguing that the Commission erred in (1) calculating Gates’s loss of wage-earning capacity, and (2) interpreting medical evidence regarding Gates’s permanent work restrictions.  Gates cross-appealed arguing the Commission erred by not finding him permanently totally disabled, etc.

Marshall William Herrin v. Lacey Nicole Perkins, Individually and as Next Friend of K.W.H  – contempt –  In the custody case between Herrin and Perkins, Herrin was ordered to pay Perkins’ attorneys fees and half the child’s day care.  When he failed to do so, Perkins oved for contempt.  At trial Herrin admitted to not paying the amounts even though he knew he was ordered to do so. He was found in contempt and hired an attorney who appealed arguing that the contempt was erroneous because Perkins did not include an itemized statement of what was owing.  Now if Herrin had come to me, I would have said, don’t pay an attorney to do a ridiculous appeal, use the money to pay what you admit you owe.  Not Judith Barnett.  She filed an appeal and lost. Wonder what she charged him for that.

James Robert Rowsey v. MDOC Commissioner Marshall Fisher, Mississippi Department of Corrections, and State of Mississippi prison discipline –  Rowsey was serving time in the lovely Leakesville Correctional Facility (a veritable hellhole) for murder when his unit was searched and contraband was confiscated. Rowsey claimed 39 of his religious books were taken (because all inmates are religious – one of a million reasons I am not). Rowsey filed a grievance. The warden concluded no books were taken from Rowsey’s cell.   In January 2016, prior to exhausting his administrative remedies, Rowsey filed an application for judicial review because MDOC’s response was untimely.  In February 2016, the MDOC issued its First Step Response Form finding Rowsey’s claims without merit.  In April 2016, Rowsey signed for the Step Two ARP response.  MDOC issued a Second Step Response stating that (1) there was no evidence that any books were taken from him, (2) inmates were only allowed five books and one “Bible/Koran,” and (3) there was no proof that Rowsey had ever purchased any of the books or had the books in his possession.  On May 24, 2017, the circuit court  acknowledged that Rowsey was correct that MDOC failed to timely process his submission in accordance with its own standard operating procedure. Nevertheless, the circuit court upheld MDOC’s ARP ruling and denied Rowsey’s application for judicial review. Rowsey sought reconsideration. The circuit  court denied it.  The COA affirms.

Martha G. Bradshaw v. Loyd E. Bradshawcustody – The Bradshaws married in 1989, had a son, and Loyd filed for divorce in 2016.  At trial their 13 year old son stated he wished to live with his father. Loyd was grated a divorce on adultery. The court awarded joint legal custody but physical custody to Loyd.  The COA affirms. 

Agustin Mendez Lopez, Conservator of the Person and Estate of Juan Mendez v. Bellamare Development, LLC and Sandeep K. Sethiconstruction accident – Sethi owned a holding company Bellamare Development that contracted with Certified Construction Company to construct a Holiday Inn in Brookhaven.  Certified Construction Company subcontracted with Varnell Framing Contractors to perform a portion of that work  including rough carpentry, sheathing, roofing, and the installation of windows.  One of its workers was Juan Mendez. Mendez was injured – he was rendered a quadriplegic – when a plywood box he was standing in on the third floor plummeted to the ground.  He filed a workers’ compensation action  against Certified Construction Company because Varnell Framing Contractors had let their workers’ compensation insurance lapse. He also filed a complaint naming several defendants: including Sethi and  Bellamare Development.  Eventually the trial court granted summary judgment for Sethi and Bellamare on the grounds that  Mendez “was unequivocally an employee of” Varnell Framing and because Varnell “clearly knew or should have known that to use the lift in the manner it was used . . . created a dangerous condition,” section 11-1-66 immunity applied. The COA affirms.

Undra Pulliam  v. State of Mississippipcr/out of time appeal -In 2016,  Pulliam was convicted of the sale of more than 2 grams but less than 10 grams of crack cocaine.   In  September of  2017, Pulliam filed a post-conviction petition for an out-of-time appeal.  In the petition, Pulliam stated that he was never notified of his right to court appointed appellate counsel, his right to appeal his conviction, or the time limits for filing an appeal. 

Terry Johnson v. Teresa Jenkins Johnson –  divorce – Terry and Teresa were married in March 1998.  In November 2017, Teresa filed a complaint for divorce alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.  Terry filed a counter-complaint, which made the same allegations against Teresa and was later amended to include adultery.  In May 2018, the chancery court entered its final judgment awarding Terry a divorce based on adultery.  Terry appealed arguing that the chancellor did not consider Teresa’s extramarital affairs when dividing the marital property and erred in accepting Teresa’s medical records when a doctor did not testify at trial.  The COA affirms.

Shelby Waite v. Justin Adkisson –  protection for domestic abuse law – Shelby Waite filed a petition for a domestic abuse protection order under the Protection from Domestic Abuse Law, MCA  § 93-21-1.  The chancery court did not make a finding that Waite was or was not entitled to relief under the PDAL.  Instead, the court granted a “permanent restraining order” under Rule 65 of the Mississippi Rules of Civil Procedure. Waite argues that the chancery court should have granted a protection order under the PDAL, and she asks this Court to reverse and render a judgment to that effect.  The COA reverses.  “We hold that the chancery court erred by granting a permanent restraining order without any finding that Waite was entitled to relief under the PDAL.  In the absence of a finding of abuse under the PDAL, there was no basis for the court to grant permanent injunctive relief.  However, we cannot render judgment in favor of Waite because the chancery court, as the finder of fact, must determine whether she is entitled to relief under the PDAL.  Therefore, we reverse and remand for a new hearing consistent with this opinion and for the chancery court to grant or deny Waite’s petition for a protection order under the PDAL.” 

Annis Willis Rainer v. River Oaks Hospital, LLCmed mal – Ranier worked at River Oaks Hospital for 30 years despite having a severe allergy to latex. In 2011 she was a patient there and undergoing a venogram to test the relative condition of the veins in her legs. Prior to the procedure, a technician had her blow on a syringe which had a latex glove on the other end of it. This injured her lungs. Rainer sued in December 2013. In April 2017, River Oaks filed a Motion for Summary Judgment, alleging that no expert had been identified by Rainer to prove negligence and causation. Rainer asked for a continuance which was denied. At the hearing on the motion in May, 2017, Rainer produced a statement (but not an affidavit) by expert Dr. D. Winn Walcott that River Oaks was negligent. The trial court granted summary judgment and Ranier appealed. The COA affirms. 

M & R Builders, LLC v. Williams Equipment and Supply Company, Inc. and Triangle Construction Company, Inc.contract –  Williams Equipment rented metal concrete forms to be used by the subcontractor M&R Builders in two projects for the general contractor, Triangle Construction Company, Inc. When Williams wasn’t paid, it sued both Triangle and M&R in chancery court for $31,922.79. The chancellor found that M&R was responsible for paying for the forms and awarded Williams Equipment $31,922.79 for the principal amount, $18,654.50 in attorney’s fees, and $328.60 in other fees and costs for a total of $50,905.89. The court awarded Triangle more than $15,000, to include a $10,000 award of attorney’s fees. On appeal, M&R argues that the case should have been heard in the circuit court and that the proof showed that Triangle was responsible for paying to rent the forms.  On appeal, the COA affirms “the chancellor’s award of damages to Williams Equipment and the chancellor’s award of both damages and attorney’s fees to Triangle Construction.  However, we reverse and render the chancellor’s award of attorney’s fees to Williams Equipment.” 

Lewis Miller, Jr. v. Vicksburg Masonic Templedamage to adjacent property –  The Masonic Lodge owns 2.64 acres of property fronting Cain Ridge Road in Vicksburg.   In 1997, Miller, owner of Riverside Construction Company, bought the adjacent property  to use as fill dirt for his construction projects and, potentially, to develop the property for commercial use. Miller excavated a vertical cut up to the edge of the Lodge’s  property line and installed a drainage system, including a five-foot-wide drainage ditch, to take care of any water runoff from the Lodge’s property.  The drainage system and ditch worked well until 2010, at which time erosion occurred to the point that certain portions of the ditch failed, and excess water flowed over the top of the ditch.  In 2013 or 2014, Miller excavated a swale on the Lodge’s property to direct the water back to Cain Ridge Road.  Since that time, no further erosion has taken place. In  2015, the Lodge brought a suit against Miller, alleging he was strictly liable for the costs of restoring its property to substantially the same condition before.  After a jury trial in Warren County Circuit Court, the Lodge was awarded $200,000 in damages. The COA affirms.

Pro se PCR appeals

Howard Hays v. State of Mississippi

James A. Swaim v. State of Mississippi