Decisions – COA – Sept. 1, 2015

Henry W. Kinney v. Harrison County Board of Supervisors –   zoning – Kinney lives on Menge Avenue in Pass Christian.  Oak Crest  operates a bed and breakfast on a twelve-acre parcel of land located on the same street  under a conditional use permit to operate as a rural resort that was granted in 2007. In 2010, Oak Crest sought and received the Commission’s approval through a supplemental application in 2010 to add amenities to provide to its customers, including a salon and spa.  In 2012,  Oak Crest asked for a conditional use permit to add approximately 2,400 square feet to the barn carriage space for making handcrafted spa, bath and body products to be used in the salon and spa.  The Commission determined it was an appropriate recreational amenity.  Kinney opposed the request and, when it was granted, appealed,  arguing that manufacturing and industrial operations of any type are not permitted or considered conditional uses within  the area.  The COA affirms. “Oak Crest’s application to amend its conditional use permit was not solely based on the presence of the Soap Company on its property. The application stated the purpose of the addition was to provide its guests with an additional amenity. Thus, this argument is without merit.  We agree with the circuit court’s finding that the Board’s subjective decision can only be construed as fairly debatable.”

In the Matter of the Last Will and Testament of Frances P. Holmes  –  SOL for reimbursement for expenses paid on behalf of incompetent –  For the last decade of her life, Frances Holmes resided in a total care facility.  Her son Jimmy had power of attorney and was responsible for paying her bills on her behalf.. Starting in September 2007, Jimmy began writing a series of personal checks to his  mother—totaling almost $85,000—purportedly to pay for her nursing care. His mother’s assets of more than $150,000 were tied up in stock.  When Jimmy’s sister Betsy found out that Frances owed $11,000 to the nursing home, she got a conservatorship.  Jimmy died in 2011 and Frances six months later.  A year after the 90-day period for filing claims against the estate, the administrator of Jimmy’s estate filed a claim seeking reimbursement of the $85,000 from Frances’ estate.  The chancellor did not approve payment.  The COA affirms finding that Jimmy (and his estate)  waited too long.  “Undisputedly, Jimmy wrote his last check to Frances in November 2009. So this is when the implied contract with Frances ended, triggering the three-year statute of limitations.”

Robert Spotswood v. Lori Daniel Spotswood –  separate maintenance – Robert filed for  divorce;  Lori counterclaimed for separate maintenance whereupon Robert withdrew his divorce complaint.  The chancellor  court denied Lori’s counterclaim but  ordered Robert to reimburse Lori for his insurance premiums that she pays through her employment and to pay one-half of the mortgage payments for the marital home that Robert and Lori jointly own. “On appeal, Robert argues that the chancery court committed reversible error in ordering him to make the payments because, in doing so, it essentially granted Lori’s request for separate maintenance after finding that she was not entitled to it.”  The COA agrees with Robert and reverses. “However, if the court finds that separate maintenance is unwarranted, it cannot, in the name of equity, do an end-run around what the law forbids by ordering one spouse to undertake certain financial obligations for the benefit 3 of the other spouse. In this case, because the chancery court found that Lori was not entitled to separate maintenance, the chancery court lacked the authority to order Robert to make the payments.”

David McKean et al v. Yates Engineering et al. –  construction accident –    The plaintiffs were working for a subcontractor constructing the expansion of  Anderson Regional Medical Center’s “Medical Towers III”  in Meridian when they fell to the ground after scaffolding collapsed.  The plaintiffs sued Yates Construction which built the scaffolding.   In a federal court dec. action filed by an insurer,  the U.S.D. Ct. for the Southern Dt. held that Yates Construction was the statutory employer of the subcontractor  and it was therefore immune from suit under tort theories. The circuit court subsequently dismissed the plaintiffs’ suit against Yates Construction. In the state court action, the court granted summary judgment for  Yates Engineering, Foil Wyatt (architects), and Anderson Regional.  The COA affirms.  Anderson Regional had no control over the construction and the agreement with Foil-Wyatt immunized it for construction means.

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