Wagner v. MATTIACE CO.

938 So. 2d 879, 2006 WL 2599131
CourtCourt of Appeals of Mississippi
DecidedSeptember 12, 2006
Docket2005-CA-01634-COA
StatusPublished
Cited by8 cases

This text of 938 So. 2d 879 (Wagner v. MATTIACE CO.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. MATTIACE CO., 938 So. 2d 879, 2006 WL 2599131 (Mich. Ct. App. 2006).

Opinion

938 So.2d 879 (2006)

Frances WAGNER and Morris Wagner, Appellants
v.
The MATTIACE COMPANY, Appellee.

No. 2005-CA-01634-COA.

Court of Appeals of Mississippi.

September 12, 2006.

*880 Christopher Ethan Kittell, Clarksdale, attorney for appellants.

Michael D. Simmons, Jackson, attorney for appellee.

Before LEE, P.J., CHANDLER and ROBERTS, JJ.

ROBERTS, J., for the Court.

¶ 1. This "slip and fall" case is appealed from the Circuit Court of Panola County. While browsing at a catalog return store, aptly named Returns, Frances Wagner, stepped backward to get a better view a certain piece of furniture and tripped, striking her head on the floor below and causing severe injury. Wagner subsequently brought suit against the store owner and sublessee, Mike Lukacs (Lukacs), the lessee, Food Giant Supermarkets, Inc. (Food Giant), and the Mattiace Company (Mattiace), the property manager of the shopping center in which Returns was located. After Wagner's claims against Lukacs and Food Giant had settled and been dismissed, Mattiace filed its motion for summary judgment. After hearing arguments concerning the motion from both parties, the Circuit Court of Panola County granted Mattiace's motion and dismissed Wagner's claims. This appeal followed. Finding no error, we affirm.

FACTS

¶ 2. Returns was part of a shopping center in Senatobia, coincidentally named Senatobia Plaza Shopping Center (the Plaza). Through a series of subleases and amendments to the original lease (Lease), dated November 12, 1975, the store space in question was leased to Food Giant on March 20,1995. After operating a grocery store out of the space for an undermined amount of time, Food Giant subleased *881 (Sublease) the space, subject to all applicable terms and conditions contained in the Lease[1], to Lukacs for a term to run from August 1, 2000, to September 29, 2002.

¶ 3. In this case, as in most things, the devil is in the details. With that in mind, it is important to review applicable sections of the Lease and Sublease. Paragraph seventeen of the Lease stated as follows,

[T]he Lessor reserves the right during the term of this lease, to enter said premises at reasonable hours to show the same to other persons who may be interested in renting or buying the property, and for the purpose of inspecting the premises and to make such repairs as Lessor may deem necessary for the protection and preservation of the said building and premises; but Lessor is not bound to make any repairs whatsoever, nor to be held liable for any damage in consequence of leaks, or for defects about the building and premises, the Lessee having examined the same and being satisfied therewith; but should such leaks, obstructions, freezing, stoppages, or other defects about the building and premises occur during the term of this lease, or while the Lessee is occupying the premises, then the Lessee shall remedy the same promptly at the Lessee's expense unless the Lessor by written agreement undertakes to do the same (except as provided in Paragraph 38 hereof).

Paragraph thirty-eight of the lease, entitled "Repair," stated as follows,

[T]he Lessor is to make necessary repairs to roof, roof structure, exterior walls and foundations, after notice from Lessee of the need for such repairs. . . . It is further agreed and understood that all other repairs including, but not limited to exterior doors to the property herein leased are to be made by the Lessee, and all labor and material used by it in making any repairs or permitted alterations will be paid for promptly by Lessee. . . .

The Sublease, under paragraph four entitled "Assumption Agreement and Covenants" stated as follows, "Lukacs hereby assumes and shall faithfully and promptly make all payments and perform all obligations and duties imposed on Food Giant as `Lessee' under the Lease, including without limitation, any obligations to maintain and repair the Leased Premises. . . ." Furthermore, the Sublease stated that Lukacs inspected the premises and accepted it "AS IS."

¶ 4. Mattiace was in the business of managing property and in furtherance of this business entered into a management agreement (Agreement) on April 1, 1999, with the owner of the Plaza to manage three properties (collectively referred to as the "Property"), one of which being the Plaza. As part of its duties, Mattiace was generally responsible for leasing the various spaces located within the Property, preparing monthly and yearly budgets, collecting rent when due, and keeping the Property in a general state of repair. Specifically, the Agreement stated that "[t]he Manager shall. . . . hire, pay, supervise and discharge engineers, janitors and other personnel required to maintain and operate the Property."

¶ 5. Mark McCormack was employed by Mattiace as the property manager for the Plaza. He stated in an affidavit that Mattiace was not responsible for making repairs to, or maintaining the interior of, *882 Returns or for providing janitorial services for Returns. However, prior to Lukacs occupying the space, but while the space was still demised under the Lease, Mattiace did replace missing and broken tiles inside the space, swept and mopped the floors of the space, and made some plumbing repairs. McCormack stated this was done strictly to facilitate Lukacs's occupancy. Also, there was testimony that McCormack routinely inspected the Plaza, to include the inside and outside of the Returns space, and conducted one such inspection during the interval between the time Food Giant vacated the space and the time Lukacs opened Returns.

¶ 6. On September 12, 2002, Wagner was shopping at Returns and found a piece of furniture that caught her eye. Backing up to gain a better view of the item, she tripped and fell backwards to the floor, striking her head as she landed. Wagner alleges that the cause of her fall was a ridge on the ground that consisted of a buildup of wax, soil, and grease that was formed between the shelving units employed by Food Giant during their use of the space. Twenty of these ridges were scattered throughout Returns, and each ridge was approximately eight feet long, two inches wide, and one-quarter of an inch thick.

¶ 7. Frances and Morris Wagner brought suit, the latter under a loss of consortium claim, on December 31, 2002. In her complaint, Wagner set forth claims of negligence against Mattiace, Food Giant, and the Lukacs, d/b/a/ Returns. After Wagner settled with both Food Giant and the Lukacs, the Circuit Court of Panola County entered a final judgment on October 19, 2004, dismissing both aforementioned parties with prejudice. Several months later, on March 14, 2005, Mattiace filed its motion for summary judgment and alleged that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Obviously in agreement with Mattiace, the Circuit Court of Panola County entered an order granting summary judgment for Mattiace on June 30, 2005. Wagner filed a motion to alter or amend the judgment on July 11, 2005, which was denied. Wagner then filed her notice of appeal on August 11, 2005.

¶ 8.

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Bluebook (online)
938 So. 2d 879, 2006 WL 2599131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-mattiace-co-missctapp-2006.