Winters v. Feng
| Decision Date | 10 November 2020 |
| Docket Number | NO. 2019-CA-01098-COA,2019-CA-01098-COA |
| Citation | 320 So.3d 1235 |
| Parties | John E. WINTERS, Appellant v. Eric FENG, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: RICHARD R. GRINDSTAFF, BRYCE CHRISTIAN KUNZ, Byram
ATTORNEYS FOR APPELLEE: JOE S. DEATON III, Jackson, RICHARD JASON CANTERBURY, Flowood
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. This appeal arises from the Hinds County Circuit Court's judgment affirming the Hinds County County Court's grant of summary judgment for Feng in a lease dispute and an award to him of attorney's fees. John E. Winters and Eric Feng entered into a commercial property lease agreement, which, among other things, required Feng to provide Winters with a liability and property insurance policy that listed Winters as an additional insured. Feng provided Winters with a Certificate of Liability Insurance (Certificate) with the insurance coverage listed. Winters thought that the Certificate was insufficient and terminated the lease agreement. When Feng did not vacate the leased premises, Winters filed a complaint for unlawful detainer against Feng in the Hinds County County Court based on Feng's failure to comply with the insurance requirements. Feng moved for summary judgment, which the county court granted after finding that Feng's Certificate provided sufficient proof of insurance. The county court also awarded Feng attorney's fees. Winters appealed to the First Judicial District of the Hinds County Circuit Court, which affirmed the county court's judgment. Winters now appeals from the circuit court's judgment. After a review of the record and the parties’ briefs, we find that the circuit court did not err in affirming the county court's order granting Feng's motion of summary judgment and awarding attorney's fees.
Statement of the Facts and Procedural History
¶2. On August 28, 2015, Winters and Feng entered into a written lease agreement by which Feng leased from Winters certain commercial property located in Lowndes County, Mississippi. Although the lease agreement at issue began on September 1, 2015, the parties had had prior leasing agreements for the same property since 1994. Paragraph 9 of the lease agreement required Feng to secure commercial umbrella insurance in the amount of $1.5 million and property insurance:
¶3. Shortly after the lease agreement was executed, Feng subleased the commercial property to Arby's Restaurant Group Inc. (Arby's), which insured all of its fast-food restaurants under one global insurance policy, including both umbrella commercial liability and property coverage. Several months later, on or about December 7, 2015, Winters realized that he had not been provided with any policies and requested that Feng provide him with proof of insurance. To do this, Feng contacted Arby's, which, according to both Arby's representatives and Feng, provided Winters with both the Certificate and the insurance policy.
¶4. The Certificate provided commercial umbrella liability coverage of $25,000,000, property coverage of $1,000,000, and listed Winters as an additional insured. Melissa Nuss, "Vice President of Lease Agreements, Risk & Administrative Services of Arby's Restaurant Group, Inc.," confirmed this coverage by affidavit. According to Nuss, the insurance policy was effective on August 31, 2015.
¶5. According to an email dated January 8, 2016, from Niikol Young (Arby's supervisor of lease administration), Winters received a copy of the policy and a Certificate, which stated:
Our insurance carrier is going to schedule Mr. Winters as an additional insured via endorsement on our liability policy. The endorsement is an addition to the policy he has already received and is a 1 page document that will list him as an additional ensured. Please find out exactly how Mr. Winters wants to be listed so we can advise our carrier accordingly and they can complete the document. On the Master Lease his name reads John Everette Winters, please confirm this is how the endorsement should read.
But because Winters wanted both himself and his wife (who was not a party to the lease agreement) to be listed as insureds, the parties could not agree on the language of the endorsement.
¶6. Although Feng provided the Certificate to Winters, Winters requested that Feng obtain additional insurance coverage for the property. But Feng refused to do so because he believed the Arby's insurance policy was sufficient.
¶7. On February 25, 2016, Winters sent Feng and Arby's an email stating that he purchased an insurance policy through State Farm for the property and requested reimbursement:
Per Mr. Feng's email instructions,[1 ] I am mailing the attached billing statement for prompt full reimbursement payment to me for the annual premium of $6,959.00 for securing insurance for the above captioned leased property. As you will see, the coverage is good and the premium is quite competitive. The premium is $2,000.00 - $3,000.00 less than quotes I received from other agents. Enclosed, herewith, is a copy of the State Farm Insurance Binder Receipt. Kindly refer to Paragraph (9); Paragraph (18) and Paragraph (36) of the Lease Agreement as this will also serve as my "Thirty (30) Days" written notice. Thank you for your cooperation.
In the email, Winters referred to the previously mentioned paragraph 9 as well as paragraphs 18 and 36 of the lease agreement. Paragraph 18 read:
(18) The occurrence of any of the following shall be an event of default hereunder. (a) Should LESSEE default in paying any installment or rental hereunder and such default continues for THIRTY (30) days after written notice of such default from LESSOR; (b) Should LESSEE default in paying any other sum to be paid by LESSEE hereunder and fail to pay the same within THIRTY (30) days after written notice of such default from LESSOR; or (c) Should LESSEE default in performing any of the other terms, provisions and covenants of this Lease and fail within THIRTY (30) days after written notice from LESSOR to cure such default or as to any default not curable within such THIRTY (30) day period should LESSEE fail to institute appropriate action to cure such default within such THIRTY (30) day period and thereafter prosecute such action with due diligence and continuity.
Paragraph 36 stated, "Time is of the essence in all of the provisions of this Lease." Again, Winters wrote that the email served as his thirty-day written notice as required by paragraph 18 in the lease agreement.
¶8. According to Winters, Feng never reimbursed him for the State Farm insurance policy. Pursuant to paragraphs 19 and 26 of the lease agreement, Winters sent a letter to Feng on March 26, 2016, terminating the lease. Paragraphs 19 and 26 of the lease respectively provided:
Winters contended that Feng breached the lease agreement by not obtaining insurance for the property as required by the lease agreement. Therefore, Winters argued he was entitled to immediate possession of the property at issue, but Feng and his sublessee remained in possession of the property.
¶9. On May 19, 2016, Winters filed a complaint in the county court for unlawful detainer against Feng for Feng's failure to comply with the insurance requirements required under Paragraph 9 of the lease agreement. Winters requested that the county court grant him a writ for immediate possession and a judgment against Feng for the premium of the State Farm insurance policy, unpaid rent from the holdover period since the termination letter was sent, attorney's fees, and expenses.
¶10. On July 14, 2016, Feng answered the complaint by denying all of Winters's claims and filed a counter-claim...
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Winters v. Eric Shawhai Feng
...2020). In 2015, Winters and Feng entered into a written agreement for Feng to lease commercial property in Lowndes County, Mississippi. Id. at 1237; Compl. [1] ¶ 1. Feng intended to operate an Arby's restaurant, so he subleased the property to Defendant Sybra, LLC, a subsidiary of Defendant......