Lovett v. Anderson
| Decision Date | 19 December 1990 |
| Docket Number | No. 89-CA-0900,89-CA-0900 |
| Parties | Arthur K. LOVETT, Jr. v. John R. ANDERSON. |
| Court | Mississippi Supreme Court |
David K. McGowan, Jackson, for appellant.
Thomas T. Buchanan, Laurel, for appellee.
Before ROY NOBLE LEE, C.J., and ANDERSON and PITTMAN, JJ.
John Anderson brought suit in Forrest County Circuit Court to collect under the terms of a lease that had been breached by Arthur Lovett, Jr. The cause was heard on a Motion and Cross-Motion for Summary Judgment resulting in a judgment in favor of John Anderson. Finding error in the grant of summary judgment, we reverse.
Lessor, John Anderson, and lessee, Arthur Lovett, Jr., executed a twelve (12) month lease on January 30, 1986, for the business property located at 108 Market Street, Hattiesburg, Mississippi. Under the terms of the lease, the lessee was to pay Three Thousand Dollars ($3,000.00) per month for the use of the leased premises with the option to renew the lease for more than one (1) year. Also, under the lease's terms, attorney's fees were recoverable by the prevailing party in the event of any litigation resulting from the lease contract.
In derogation of the lease's terms, Arthur Lovett, Jr., abandoned the subject property and failed to pay the prescribed rent when due. As a result, John Anderson filed suit in the Circuit Court of Forrest County seeking more than Forty One Thousand Dollars ($41,000.00) for appellant's breach. Mr. Anderson's complaint sought rent and penalties together with interest and all costs of court. To the above complaint, Arthur Lovett, Jr., filed an answer alleging that the amount claimed by appellee was not due in fact or law. He maintained that appellee had not mitigated damages by failing to re-lease the property and further that appellant Lovett was entitled to a set-off for improvements to the property in the amount of Eighteen Thousand Dollars ($18,000.00).
On February 3, 1988, appellee Anderson filed a Motion for Partial Summary Judgment with the lower court. This motion alleged that no issues of material fact existed in this matter and was accompanied by the affidavit of Mr. John Anderson.
After an extension of time, Arthur Lovett, Jr., answered appellee's Motion for Summary Judgment on May 17, 1988. This answer contained a Cross-Motion for Summary Judgment alleging that appellee Anderson had failed to mitigate his damages in this matter and further that appellant was entitled to a set-off for the sale of equipment purchased for the leased premises.
On August 2, 1988, appellee Anderson filed his answer to appellant's Cross-Motion for Summary Judgment. This answer On June 14, 1989, the Honorable Richard McKenzie issued his Opinion in this matter finding that appellee's Motion for Summary Judgment was well taken and awarding him Forty Five Thousand Three Hundred Twelve Dollars and Fifty Cents ($45,312.50). The judgment included an award of Thirty Six Thousand Two Hundred Fifty Dollars ($36,250.00) for past due rent and penalties and Nine Thousand Sixty Two Dollars and Fifty Cents ($9,062.50) for attorney's fees together with interest and all costs of court. From the lower court's ruling, appellant Lovett perfected this appeal.
denied the allegations contained in appellant's motion and was accompanied by the affidavit of Mr. Donald Reynolds. This affidavit enumerated the efforts that appellee Anderson had taken in attempting to find another lessee for the subject property.
The principal issue on appeal is whether summary judgment was appropriate in this matter. To answer this question, we must first look at the requirements mandated by Rule 56 of the Mississippi Rules of Civil Procedure. Rule 56(c) states:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Rule 56 does not cast upon the movant any burden of proof beyond that which he would shoulder at trial. The moving party has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, that he is entitled to judgment as a matter of law. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). The lower court ruled that summary judgment was appropriate in this matter. Finding that genuine issues of material fact exist, we reverse.
Arthur Lovett, Jr., in his answer to the Anderson complaint, asserted a right of set-off for the value of improvements made to the leased premises. Mr. Lovett...
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