Decisions – Ct. of App. – Aug. 19, 2014 – part 2

Marisco v. Allstate –  home insurance claim –  The Mariscos came home after a vacation and found they’d been burglarized and their house vandalized. The vandals broke the plumbing causing the entire house to flood.  They filed a claim with Allstate.  Since the house was uninhabitable, some of the family stayed in a trailer while other members stayed at their grandmother’s house. When it appeared the repairs would take longer than anticipated, Wayne Marisco approached a friend (Ryan) about leasing his house.  Allstate agreed to pay for it and issued a check for $7040 payable to Wayne  and Ryan.  However, Ryan thought that they agreed that Ryan would stay in the house. Wayne agreed to pay Ryan half of the money for improvements made to the house in anticipation of the lease agreement. Allstate got suspicious and investigated whether the Mariscos were entitled to the $7040 payment.     Wayne was examined under oath twice.  He was asked to produce Ryan but when Wayne asked Ryan he declined to participate.  Wayne was also asked whether there were any suspicions as to the identity of the vandals.   Finally, the Mariscos filed suit after which Allstate denied their claim because an insured person “has concealed or misrepresented any material fact or circumstance.”   Both parties moved for summery judgment.  The trial court granted s.j. for Allstate finding that the Mariscos made misrepresentations regarding the lease with Ryan, failed to disclose their suspicions of Otis Stanley Graham and failed to disclose a video recording of Ryan.  The MAriscos appeal the grant of s.j. to Allstate and the denial of s.j. for them. The Court  first finds that the trial court never stated how the lease was material and while Allstate argued the lease was a pretext to obtain money for some unspecified purpose not permitted by the policy, the Mariscos had an explanation of why they never lived there.   As for the suspicions about Graham, Allstate complains Marisco did not reveal these during his first EUO.  Wayne, however, maintains he did not know about Graham until the 2d EUO.  As for the video of Ryan taken by a public adjuster, Allstate did not prove that Wayne knew about this video.  The Court finds there is a material issue of fact as to whether Wayne could be required to produce Ryan since Ryan was not  a family member of employee.  The Court reverses the grant of s.j. to Allstate but affirms the denial of s.j. for the Mariscos. 

 Gabriel  McDowell v. Statepcr  – McDowell was convicted of the sale of cocaine and sentenced as an habitual to 30 years without parole.  He filed a pcr in the Miss. Ct. App. which granted him a limited evidentiary hearing.  The trial court resentenced McDowell to life without parole.  The Miss.S.Ct. denied his application to appeal. He then filed a federal habeas petition.  The federal court granted relief and sent the case back for resentencing.  The trial court resentenced him to 30 years without parole.  He then filed a motion for permission to file a pcr with the Miss.Supreme Court which denied it.  He nonetheless filed his pcr motion in the trial court which dismissed it because McDowell had not obtained permission for the Miss. S.Ct.  The Court agrees.  Neither the trial court or the Ct. of Appeals has jurisdiction.  The appeal is dismissed.


Cleveland MHC v. the City of Richland – zoning case. The City of Richland passed an ordinance stating that if a mobile home was removed from the Cleveland Mobile Home Park, it could not be replaced by another mobile home on the site.  Cleveland MHC filed a bill of exceptions.  The mobile home park had existed since the 50s.  At some point, the property was annexed by the City of Richland.  When the property was annexed, it was zoned light industrial.  The mobile home park, then, was a non-conforming use since residences are not allowed on industrial-zoned property.    Sect. 405 of the City ordinances states that non-conformities are allowed to continue until they are removed.  This, however, was not enforced against CMHC.  WHen the Appellant brought the property in 2008, it was told that it could continue its practice of replacing mobile homes that moved with new ones.  In April 2011, the City changed its policies and informed CMCH that it could no longer replace removed mobile homes.  CMCH appeared before the Board of Alderman to argue against enforcement of Sect. 405.  Instead the Board passed an ordinance specifically aimed at CMCH stating that once a mobile home was removed, it could not be replaced.  CMCH appealed and the Circuit Court upheld the ordinance.The Ct of Appeals reverses: “We conclude that the reasonable interpretation of the ordinance is to construe the nonconforming use to relate to the mobile-home park as a whole. As long as the park is operated as such, without expansion, it is a permitted use. The City’s resolution, on the other hand, seeks to transform the nonconforming use to a pad-by-pad use and to destroy it by attrition.”  The City’s resolution, then, “is arbitrary, capricious, and illegal.”

Marci Oglesby v. the City of Madison –  Oglesby was convicted of DUI first and careless driving.   She was pulled over on Hoy Road on Feb. 11, 2012, at 12:30 a.m. after law enforcement saw her cross the white line and into the gravel.  The officer testified that when she was getting her purse from her trunk, he smelled alcohol.   She told him she had had a couple of drinks.   However, there was nothing about her speech or demeanor to show that she was intoxicated.  She refused a preliminary breath test but did the HGN and the walk and turn which the officer claimed she failed. At the station she refused to take the Intoxilyzer 8000.  She was found guilty in city court and after a trial de novo in County Court.  The Madison County Circuit Court affirmed on appeal.  She appeals again arguing sufficiency of the evidence.  The Miss.Ct. of Appeals affirms. 

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