Vice v. Leigh

670 So. 2d 6, 1995 WL 702769
CourtMississippi Supreme Court
DecidedNovember 30, 1995
Docket92-CA-00534-SCT
StatusPublished
Cited by7 cases

This text of 670 So. 2d 6 (Vice v. Leigh) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vice v. Leigh, 670 So. 2d 6, 1995 WL 702769 (Mich. 1995).

Opinion

670 So.2d 6 (1995)

Thomas E. VICE
v.
Frank M. LEIGH.

No. 92-CA-00534-SCT.

Supreme Court of Mississippi.

November 30, 1995.
Rehearing Denied March 14, 1996.

J. Douglas Ford, Mitchell McNutt Threadgill Smith & Sams, Gary L. Geeslin, Lipscomb Geslin & McClanahan, Columbus, for appellant.

Lee B. Hazlewood, William Liston, Liston/Lancaster, Winona; and Charles T. Yoste, Starkville, for appellee.

BEFORE HAWKINS, C.J., and JAMES L. ROBERTS, Jr., and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

Thomas E. Vice has appealed a judgment of the chancery court of Lowndes County finding that Frank M. Leigh had a right to cancel a lease agreement with right to renew between the two, and also erect a fence between properties leased by Vice and owned by Leigh. We reverse and render on the former and affirm on the latter.

FACTS

This case involves a lease agreement for a 15-year period, June 27, 1977-June 27, 1992, with option to renew for a like period. On August 8, 1990, Leigh wrote Vice that he was in default because he had sublet the premises to Bobby W. Eidson without obtaining Leigh's prior written consent, had damaged the parking area, and had been delinquent in *7 the payment of ad valorem taxes for which he was responsible under the lease.[1]

On September 21, 1990, Leigh filed suit in the chancery court of Lowndes County seeking a declaratory judgment that he had a right to cancel the lease agreement with option to renew. Leigh subsequently abandoned any effort to have the court declare the lease itself forfeited, concentrating instead on his contention that he had no obligation to renew the lease because of the breaches by Vice. Vice answered October 24 and also counter-claimed, alleging that Leigh had improperly constructed a fence dividing the commercial properties owned by Leigh, and part of which had been leased by Vice.

NARRATIVE EVENTS

In 1976, Leigh, Vice and Thomas R. Ferguson agreed to develop a parcel of property owned by Leigh on Bluecutt Road in Columbus. As part of the agreement, Vice constructed three commercial structures at what became known as 3502, 3504 and 3506 Bluecutt Road. A common parking lot was also constructed in front of all three buildings.[2] Thereafter, Leigh leased the property at 3502 Bluecutt Road to Vice and Ferguson for a term of fifteen years on June 28, 1977.

The lease stated in relevant part:

Lessees shall not assign this lease nor sublease said premises in whole nor any part thereof without the written consent of Lessor; provided, however, such consent shall not be unreasonably withheld.
... .
In the event of default by Lessees in payment of any installment of rent accruing under the terms of this lease, or in the event Lessees should fail to perform or observe any other covenant, agreement or obligation assumed under the terms of this lease and such default shall continue for a period of 30 days, or in the event of the insolvency of the Lessees, or the adjudication of the Lessees to be bankrupt, whether such adjudication be voluntary or involuntary, or in the event of a judgment against Lessees remaining unsatisfied and without appeal for more than 30 days after its entry, or in the event of an abandonment of the leased premises by Lessees, then in any such event, Lessor shall have the right to declare the rights of Lessees under this lease forfeited and cancelled [sic] and to re-enter into possession of the demised premises. In such event, Lessor may re-let said premises or make such other use of it as he may consider expedient under the circumstances and Lessees shall be liable for the full guaranteed to Lessor by the lease together with all the Lessor's costs, including reasonable attorney's fees, less whatever amount Lessor should derive from the subsequent reletting or re-use of said property for the remainder of this lease.
... .
In consideration of the covenants and rental payments provided herein, Lessor does hereby grant unto the Lessees the right at their option, to renew this lease for an additional period of 15 years beginning the 28th day of June, 1992, and terminating the 27th day of June, 2007, upon the same terms and conditions as herein provided, except for the provisions providing for an option of renewal and except for the rental ...
(a) Lessees, in order to exercise this option to renew, must give written notice of their intention so to do at least three months prior to the expiration of the primary term of this lease;
(b) In order to avail themselves of the right of this option to renew, Lessees must have made all rental payments when due and must have complied with and performed all of the covenants premises and agreements of this lease. In the event of any delinquency in the payment of rentals or any violation of nonperformance of the covenants of this agreement, the right of Lessees to renew shall be forfeited and Lessor shall be under no obligation to renew this lease as specified above.
*8 The covenants and agreements contained in this lease are interdependent and are binding on the parties hereto, their heirs and assigns.

A business, the "House of Lights," was a sub-tenant of Vice and Ferguson and occupied the 3502 property, at the time the June 1977 lease was executed.[3] Leigh raised no objection to the House of Lights.

In 1979, House of Lights vacated the 3502 property. The property was then sub-let to Magnolia Lighting. Vice and Ferguson did not obtain Leigh's consent prior to sub-leasing the property. However, Leigh raised no objection to the sub-lease.

In 1986, Ferguson assigned his entire interest in the 3502 property to Vice without Leigh's prior approval. Thereafter, Vice notified Leigh of the assignment. Leigh raised no objection. At the same time, Vice gave notice to Leigh that he intended to renew the lease.

Magnolia Lighting vacated the 3502 premises in 1987. On June 24, 1988, Vice sublet the property to Bob W. Eidson without Leigh's prior approval. By a letter date November 5, 1988, however, Vice did inform Leigh that he had sub-let the property to Eidson: "My lease with Edison [sic] is a triple net lease, in which, he pays all taxes, insurance, and upkeep on the building." A similar letter was sent to Leigh on December 2, 1988. Thereafter, in 1989, Leigh constructed the fence across the parking lot, dividing the other property from the 3502 premises. On August 8, 1990, Leigh informed Vice that he was in default on the lease, partly because of the unauthorized sublease to Eidson.

At trial, the following colloquy took place:

LEIGH
BY MR. LISTON:
Did you ever give your consent to the sublease of those buildings to Mr. Eidson?
BY MR. LEIGH:
No. No, sir.
BY MR. LISTON:
At any time during the primary term of the 1977 lease did you give Mr. Vice and Mr. Ferguson notice of what you considered to be default in terms of that lease by them? And, in that connection, I want to hand you Exhibit No. 11 in evidence.
BY MR. LEIGH:
I construed the August 8, 1990, letter from me to Mr. Ferguson and Mr. Vice as notification that they were in default.
(T. 70-71)
CROSS-EXAMINATION:
BY MR. GEESLIN:

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Cite This Page — Counsel Stack

Bluebook (online)
670 So. 2d 6, 1995 WL 702769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vice-v-leigh-miss-1995.