Trace X Chemical, Inc. v. Highland Resources, Inc.

• Decision Date: 09 April 1979
• Docket Number: No. 78-292,78-292
• Citation: 265 Ark. 468,579 S.W.2d 89
• Parties: TRACE X CHEMICAL, INC., Appellant, v. HIGHLAND RESOURCES, INC., et al., Appellees.
• Court: Arkansas Supreme Court

Page 89

579 S.W.2d 89

265 Ark. 468

TRACE X CHEMICAL, INC., Appellant, v. HIGHLAND RESOURCES, INC., et al., Appellees.

No. 78-292.

Supreme Court of Arkansas, In Banc.

April 9, 1979.

E. E. Maglothin, Jr., Fayetteville, for appellant.

Hamilton H. Singleton, Camden, Shackleford, Shackleford & Phillips by Dennis L. Shackleford, El Dorado, for appellees.

HOLT, Justice.

Appellee Highland brought suit alleging that appellant, its lessee, had breached various lease agreements and sought possession and damages for accrued rent. Appellant answered and counterclaimed alleging compliance with the lease agreements and asserted that appellee Highland was the party who had breached the leases. By counterclaim appellant sought damages for improvements made by it to the leased premises and requested that the cause be transferred to a court of law. Appellee Highland filed a motion for summary judgment, stating that there was no issue of fact as to the breach of the leases since both parties had alleged a breach. The chancellor granted Highland's motion, finding that both had alleged breaches and that, based upon those allegations, the lease agreements were terminated. Possession of the property was awarded to appellee Highland with the right to remove appellant's property from the premises. The chancellor transferred the issues of liability and damages to the circuit court for determination. Hence this appeal.

We first consider appellee Highland's motion to dismiss this appeal, asserting that the chancellor's order is not appealable. We hold that the order is appealable since it concluded the parties' rights to possession of the property. See Ark. Hwy. Comm'n. v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965); and Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). Accordingly, we deny appellees' motion to dismiss.

We next discuss appellant's contention that the court erred in granting a summary judgment and awarding appellee Highland possession of the property. A summary judgment, being an extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated; and, before one is entitled to a summary judgment, it is incumbent upon the movant, here the appellee, to show there is no existence of a fact issue. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W.2d 660 (1975). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Ins. v. Northwestern Nat'l. Ins. Co., 255 Ark. 802, 502 S.W.2d 474 (1973).

Here, as noted, appellee Highland alleged, Inter alia, that appellant had breached in various ways the lease agreements between them. Appellant denied that allegation and alleged that appellee Highland was the breaching party. Appellees argue that appellant conceded that the leases had been breached in its response to the motion for summary judgment and supporting brief, where it made the statement: "True, there may not be a question that the leases have been breached . . . . Both. .... allege in their pleadings that the leases have been breached. .... This fact may not be controverted." We do not agree that this was a concession that no controversy existed; appellant merely recognized the fact that it "might not," which is different from saying that it "does not" exist. Each alleged a different basis of a breach or breaches. The issue was which one breached the leases. An issue is not decided simply because both parties to a lawsuit allege the same conclusion of law. Here, both or either party could fail to meet the required burden of proof to show that the other breached the leases.

Appellant sought in its counterclaim to have the entire case transferred to a court of law. The chancellor, as indicated, after granting Highland possession of the property based upon its motion for summary judgment, transferred the remaining issues of liability and damages to a court of law. Since we hold the motion for summary judgment was incorrectly granted, we are of the view that the entire cause should be transferred to a court of law.

Reversed and remanded.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice, dissenting.

Many years ago, this court was admonished not to reverse a case for an error that is not prejudicial, i. e., does not affect a substantial right of any party. Ark.Stat.Ann. § 27-1160 (Supp.1977). No citation of authority is necessary to show that we have, on hundreds of occasions, given heed to the admonition. I do not concede that there was any error in the action of the trial court here, but if there was, it was not only harmless, it was innocuous, insignificant and trivial. The reversal in this instance is purely ceremonial and wholly unnecessary.

The trial court transferred the issues of liability and damage to the circuit court. The majority holds that the summary judgment was incorrect and that the entire case should be transferred to a court of law. There really is no difference at all in what the chancery court did and what the majority says should be done.

The trial court held that there had been a breach of the lease contract. It left the question of Liability to be determined by the trial court. The question of liability depends entirely upon the answer to the question, "Who breached the contract?" Who says the contract was not breached? Appellant does not; appellees do not; the trial court does not; and this court does not. Beyond the shadow of a doubt, the lease contract has been breached. Each of the parties contended that the lease was terminated by the other's breach. This may be the only thing on which the parties agree, but they certainly agree upon that and there is not one word in their pleadings to indicate that they did not. What was wrong with the chancery court's saying so?

Highland's suit was one in unlawful detainer dressed in declaratory judgment clothing. It alleged that the lease had been breached by appellant and sought possession by mandatory injunction to appellant to remove its property from the leased premises. All the relief sought could have been obtained through an unlawful detainer action, without a mandatory injunction, an equitable remedy granted only when there is no adequate remedy at law and, actually, when there is no other remedy in equity.

Text writers have spoken clearly on the subject of mandatory injunction. See 43 C.J.S. Injunctions § 8, p. 751, where we find:

* * * While it has been said that the granting of mandatory injunctions is governed by the same rules as the granting of preventative injunctions, mandatory injunctions are viewed as harsh remedial process, and are not favored by the courts.

Indeed, mandatory injunctions are rarely granted; and it has been noted that the courts are more reluctant to grant a mandatory injunction than a prohibitory one, that the requirements for the issuance of a mandatory injunction are stricter than for issuance of a prohibitory one, and that generally an injunction will not lie except in prohibitory form. . . .

While mandatory injunctive relief may be appropriate in a clear case, and, indeed, will not issue except on the clearest equitable grounds, even if the right is clear, it does not follow that a mandatory injunction must be granted. In fact, such relief will be issued only in cases of extreme, great, or urgent necessity, or compelling circumstances, where the right invaded is material and substantial, and where adequate redress at law is not afforded, or where the injury is not compensable in damages.

And see, 42 Am.Jur.2d 751, Injunctions § 20, where it is said:

* * * The basic principles upon which the mandatory and prohibitory injunctions are granted do not differ materially, although the courts are perhaps more reluctant to interpose the mandatory injunction. It has been said that relief by mandatory injunction is not regarded with judicial favor and is used only with caution and in cases of great necessity. A mandatory injunction, it is said, should be granted only under compelling circumstances. When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as to make its refusal work a real and serious hardship and injustice; otherwise, it may inflict on the defendant the very irreparable injury which it is alleged he has done or is about to do against the plaintiff.

The case should never have been in the equity court.

Then the court held that Highland was entitled to possession. All parties agree by their pleadings that Highland is entitled to possession. Highland brought the suit seeking a mandatory injunction as the instrument for obtaining possession by removing appellant's property from the premises. Appellant alleges that there has been a breach of the covenant for quiet enjoyment by Highland. It also alleges that it has been constructively evicted by the actions of Highland. Perhaps appellant has used two means of saying the same thing. In any event, retention of possession is inconsistent with the allegations of appellant's pleadings and appellant does not allege that it is in possession. Appellant seeks only to be relieved of its obligations under the lease and to recover damages for breach of the covenant of quiet enjoyment and for constructive eviction.

The concepts of constructive eviction and breach of the covenant for quiet enjoyment are very closely related, if not just different names for the same concept. An excellent discussion of the relationship between the covenant of quiet enjoyment and constructive eviction can be found in Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969). Portions of that discussion follow:

The great weight of authority throughout the country is to the effect that ordinarily a covenant of quiet enjoyment is...