Set Aside Guilty Plea

Yesterday, the Mississippi Court of Appeals decided Baker v. State located here.  This case illustrates how hard it is to set aside a guilty plea.  The general holding is that if the Court goes through all the proper steps, without some really good proof and affidavits attached to the petition, the conviction will not be set aside.  In doing some research on another matter, I think the requirements of proof are still present but that the burden may be a little lower in a practical since if the guilty plea was an Alford plea where a person maintains their innocence but agrees it is in their best interest to plea guilty. 

Case to Watch

The Mississippi Supreme Court has retained an interesting case located at 2015 CA-1527-SCT.  The Court is set to address two issues based on an order handed down on December 15, 2016 located here dealing with child support.  The parties have been ordered to brief the following:

"(1) Caldwell implies in dictum that children who engage in "clear and
extreme" conduct toward non-custodial parents may forfeit their right to child
support. Does the "clear and extreme" conduct mentioned in Caldwell fall
within one of Mississippi Code Section 43-19-103's criteria for finding that
the presumption in Mississippi Code Section 43-19-101 has been rebutted?

(2) If not, what authority, if any, exists for this Court to establish additional
criteria for overcoming the presumption established by 43 -19-101 ? In briefing
this question, the parties should particularly address, though not exclusively,
this Court's statement in Thurman v. Thurman, 559 So. 2d 1014,1017

(Miss.1990) that "The guidelines for child support awards as now set out in

Miss. Code Ann. §43-19-101 (Supp. 1989) must not control the Chancellor's

award of child support."

Interesting issue to watch. 

Bill of Discovery

Yesterday, the Mississippi Court of Appeals decided Graham v. Franks, et. al. located here.  The Court of Appeals determined that the old bill of discovery from prior to the Rules of Civil Procedure was still a valid cause of action.  To me, this opens up a whole new avenue where a party may be able to obtain discovery of items to determine if a cause of action exists prior to filing a separate suit. 

Wrongful Death

On Thursday, the Mississippi Supreme Court decided Estate of Davis et. al. v. Blaylock et. al. located here.  The first case filed in a wrongful death action is the one that proceeds.  The rest are of no effect.   The Court in its opinion noted; 

"Still, Davis contends the proper course was to consolidate her multiple actions. But when faced with a similar request to consolidate in Long, we clearly held that, because any subsequently filed actions are “of no effect and should be dismissed,” they cannot be consolidated with the first action. Id. at 174. “Consolidation of suits presupposes that there are two suits to consolidate.” Id. And because a wrongful-death claim “must be brought in a single suit, there cannot be two suits to consolidate.” Id."

Appeal of Summary Judgment Denial

There are two lines of cases dealing with appealing the denial of a summary judgment motion:

The Mississippi Court of Appeals has held that appeals from the denial of a motion for summary judgment are interlocutory in nature and are rendered moot by a trial on the merits.  Gibson v. Wright, 870 So. 2d 1250, 1254 (¶8) (Miss. Ct. App. 2004) (citing Black v. J.I. Case Co., 22 F.3d 568, 569-70 (5th Cir. 1994)).  “[O]nce trial begins, summary judgment motions effectively become moot.”  Id. (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 397 (5th Cir. 1995)).  Britton v. Am. Legion Post 058, 19 So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008); accord Gibson, 870 So. 2d at 1254 (¶8). 

But see:

U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So. 2d 956, 962 (¶12) (Miss. 2008) (reviewing
denial of summary-judgment motion, post-jury verdict); Piggly Wiggly of Greenwood Inc.
v. Fipps, 809 So. 2d 722, 726 (¶16) (Miss. Ct. App. 2001) (same).  The review of the denial of the summary-judgment motions in those cases would have concerned issues of fact.  Britton v. Am. Legion Post 058, 19 So. 3d 83, 84 (¶5) (Miss. Ct. App. 2008) (refusing to review summary-judgment motion that concerned status of party as legal entity); Gibson v. Wright, 870 So. 2d 1250, 1254 (¶5) (Miss. Ct. App. 2004) (refusing to review summary-judgment motion that concerned legal status of decedent in wrongful-death suit).

The issue seems to be whether issues of law or fact are involved.  If issue of law reviewable, if of fact up to the jury and not reviewable. 

Admissions in State Court v. Federal Court

In Mississippi, the standard to withdraw admissions that have not been timely responded to is pretty low if you file a motion to withdraw the admissions.  However, in Federal Court, the standard is higher.  If a request is made before the expiration of the deadline, the Courts grant additional time as a matter of course.  Fed. R. Civ. P. 6(b)(1)(A).  When the time is lapsed, the more stringent times of Rule 6(b)(1)(B) apply.  An extension under this rule can be granted only upon a showing of both good cause and excusable neglect. 

Few Cases on Witness Testimony and Appeals

Here are a few cases dealing with witness testimony on appeal.  They can also be helpful in making arguments to a trial court in summation:

               (1)  Regarding witnesses “[u]ndisputed testimony, which is not so unreasonable
as to be unbelievable, must be taken as truth.” Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987). 

              (2) For “in the absence of contradictory evidence, courts are bound to accept the
only credible evidence offered in a proceeding and apply the correct law.” MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008).  

               (3)  “Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not
only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case.” Mobile, J. & K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143 (Miss. 1908). For “we must accept the testimony of [a witness] as true,” when such a witness “is not contradicted either by direct evidence or by circumstances.” Stewart v. Coleman & Co., 120 Miss. 28,  81 So. 653, 655 (Miss. 1919).

               (4). Furthermore, the law in Mississippi is that a jury is to weigh expert testimony, and
“judging the expert’s testimony and weight to be accorded thereto is the province of the jury.”
Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007) (internal quotations and citations omitted). For “the jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely.” Id. (internal quotations, citations, and alterations omitted).
        
                (5). “This Court, of course, is not the jury . . . The weight and credibility of the \
witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose.” Id. (internal quotations and citations omitted); Robinson, 51 So.3d at 950 n.5 (internal quotations and citations omitted) (“The credibility of a witness is a question of fact for the jury to resolve”).   In Robinson, the case was fully fleshed out at trial—and the Court ruled it would not second guess the jury.  Id. at 950.