Yazoo Properties v. Katz & Besthoff No. 284, Inc.
| Decision Date | 13 October 1994 |
| Docket Number | No. 92-CA-00160,92-CA-00160 |
| Court | Mississippi Supreme Court |
| Parties | YAZOO PROPERTIES, an Ohio General Partnership v. KATZ & BESTHOFF NUMBER 284, INC. |
Dana E. Kelly, Phelps Dunbar, W. Robert Jones, III, Jackson, for appellant.
W. Whitaker Rayner, Robert H. Weaver, Watkins Ludlam & Stennis, Jackson, for appellee.
Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.
STATEMENT OF THE CASE
This civil action is on appeal to this Court after the lower court granted summary judgment in favor of Katz & Besthoff # 284, Inc. 1 ("K & B") on January 15, 1992.
On May 18, 1989, Yazoo Properties, the lessor, filed an action to recover from K & B, the lessee, past-due rent payments. K & B responded by filing its Answer alleging that K & B was not in arrears on payment because K & B was paying the proper amount according to the lease. Both parties filed motions for summary judgment. The trial court granted K & B's Cross-motion for Summary Judgment. It is from the Order granting summary judgment that this appeal is taken. Aggrieved by the Order, Yazoo Properties appealed and assigned the following as error.
THE CIRCUIT COURT ERRED IN GRANTING DEFENDANT K & B'S MOTION FOR SUMMARY JUDGMENT BASED UPON ITS FINDINGS THAT SUBSEQUENT TO CONDEMNATION OF A PORTION OF THE PREMISES LEASED BY DEFENDANTS, DEFENDANTS WERE ENTITLED TO RESORT TO CERTAIN REMEDIES FOUND IN THE LEASE OTHER THAN THOSE SPECIFICALLY SET OUT IN THE PORTION OF THE LEASE DEALING SPECIFICALLY WITH EMINENT DOMAIN.
Upon de novo review of the record, we affirm the grant of summary judgment in favor of K & B Mississippi Corporation.
The facts of this case are basically undisputed. Appellant, Yazoo Properties, the lessor, is a general partnership organized under the laws of the State of Ohio. Yazoo Properties owns certain real property and retail facilities located in Yazoo City, Mississippi, and generally known as the Yazooville Shopping Center (the "Premises"). In early April 1977, Katz & Besthoff # 284, Inc., which later changed to K & B Mississippi Corporation, executed a lease of a portion of the shopping center (the "Lease"). Yazoo Properties subsequently acquired from the original lessor all of its right, title and interest in and to said property and was assigned said lease and was fully authorized and able to act as Lessor of the Premises.
Under the terms of the Lease, the Lessor agreed to provide the tenant with customer parking as detailed in the following provisions:
Article 16(a) of the Lease states:
It is further understood and agreed that the Lessor, at its sole expense, shall construct and keep in good repair a hard-surfaced parking area as provided in the original plot plan, which is attached hereto and marked Exhibit "A." Lessor agrees that the parking area shall at all times during the primary term of this lease or any renewal or extension thereof remain as shown on Exhibit "A." Lessor covenants and agrees that the parking area shall at all times have vehicular entrances and exits from and to adjacent streets and roads as indicated on said Exhibit "A."
Exhibit "A-1," which was made part of the lease by Amendment # 1, dated May 17, 1978, provided for a parking ratio of 5.46 spaces per 1,000 sq. ft. of rentable space. Article 5(c) of the lease further provided in part:
Lessor shall cause the parking area and other areas common to all tenants of Lessor to be constructed contemporaneously with the construction of the leased premises, and upon date of commencement Lessor shall have provided parking area of not less than three (3) square feet at ground level for each square foot of gross floor area contained in the buildings located in the shopping center, or as shown on the plot plan, Exhibit "A" attached hereto.
In October 1984, the Mississippi State Highway Commission commenced eminent domain proceedings for the purpose of acquiring a portion of the Premises in connection with the widening of U.S. Highway 49. On April 12, 1985, the Special Court of Eminent Domain entered a judgment compensating Yazoo Properties for the taking of a portion of the Premises. Portions of the parking lot were taken in fee and certain portions through a temporary construction easement. It was undisputed that after the eminent domain proceedings, the shopping center did not provide the requisite number of parking spaces. 2
By letter dated April 18, 1985, K & B notified Yazoo Properties of K & B's intention to reduce its rental payment for the leased Premises from $4500.00 per month to K & B claimed that the taking by the State resulted in violation of the covenants set out in the above provisions and therefore constituted an event of default pursuant to Article 20(b) of the lease. Following notice to Yazoo Properties, K & B paid rent in the sum of $2,250.00 monthly as provided for in Article 20(b). The said reduced payment was maintained from April 18, 1985 without incident until Yazoo Properties filed this action in May 1989.
$2250.00 per month in accordance with the provisions of Article 20(b) of the lease claiming that the taking by the State had reduced K & B's available parking area to a level below that provided for in the lease.
We employ a de novo standard of review in reviewing a lower court's grant of a summary judgment motion. Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (1988). A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Miss.R.Civ.P. 56(c). To avoid summary judgment, the nonmoving party must establish a genuine issue of material fact by means allowable under Rule 56(c). Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991). The analysis of contract terms often lends itself to summary judgments and judicial efficiency. Such is the case at hand.
A motion for summary judgment should be denied unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. McFadden v. State, 580 So.2d 1210 (Miss.1991). "[T]he Court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried." Brown v. Credit Center Inc., 444 So.2d 358, 362 (Miss.1983). In the case sub judice there are no issues to be tried, only contract terms to be applied.
THE CIRCUIT COURT ERRED IN GRANTING DEFENDANT K & B'S MOTION FOR SUMMARY JUDGMENT BASED UPON ITS FINDINGS THAT SUBSEQUENT TO CONDEMNATION OF A PORTION OF THE PREMISES LEASED BY DEFENDANTS, DEFENDANTS WERE ENTITLED TO RESORT TO CERTAIN REMEDIES FOUND IN THE LEASE OTHER THAN THOSE SPECIFICALLY SET OUT IN THE PORTION OF THE LEASE DEALING SPECIFICALLY WITH EMINENT DOMAIN.
The Court must decide whether or not it was proper for K & B to pay one-half rent under Article 20(b) of the Lease or whether Article 18 of the Lease controlled and precluded K & B from using the remedies under Article 20(b). Article 20(b) of the Lease states:
In addition, and without in any way waiving, limiting, or restricting Lessee's other remedies or options herein contained, in the event of a violation of or the failure of Lessor or anyone else to observe the terms of Article 2, Article 3, Article 15, or Article 16 hereof, the monthly basic rental set forth in Article 6(a)(1) hereof and the percent of additional rental set forth in Article 6(a)(2) hereof, shall be payable at half of the stipulated amounts therein stated unless Lessor cures any such violation or failure to observe the said provisions which reduction shall be considered as liquidated damages for the period during which any such violation may have existed.
Yazoo Properties argued that this portion of the lease did not govern when the breach of the lease was caused by eminent domain proceedings. Yazoo Properties argued that in the event of eminent domain proceedings whereby all or a portion of the premises was taken, the rights and obligations of the parties to the lease were to be governed specifically and exclusively by the provisions of Article 18 of the lease, entitled "Eminent Domain." Article 18 reads:
In the event 20% or more of the parking or service areas is taken under the power of eminent domain, or if Lessee is substantially affected if less than 20% is taken Yazoo Properties submitted that this Court should apply the doctrine of ejusdem generis, the notion that specific language controls over general inconsistent language in a contract, to find that Article 18 applied exclusively to the situation sub judice. Yazoo Properties contended that Article 18 deals specifically with the rights of the parties in the event of eminent domain proceedings and must control over the other general provisions dealing with defaults based upon voluntary acts of the landlord or, alternatively, that Article 18 at least created an exception to the more general rights and duties of the parties specified elsewhere in the lease.
Lessor shall give Lessee written notice thereof and Lessee shall have the option, to be exercised within sixty days after receipt of such written notice, to cancel this lease and declare the same null and void.
K & B answered that Yazoo Properties had represented to the court of eminent domain, K & B, and at least one other tenant that Yazoo Properties was in the process of providing additional parking spaces in compliance with the Lease. Further, Yazoo Properties made a totally voluntary decision in pocketing the proceeds awarded it by the court of eminent domain and refusing to provide substitute parking after assuring K & B that it would do so. Therefore, we cannot agree with the characterization by Yazoo Properties that the taking of the parking spaces left Yazoo Properties without any power to correct the lack of parking spaces assured by the contract.
K & B could rely on Article 20(b) of the lease to support...
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