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JOHN E. FORD v. C. W. WHITE AND C. T. WHITE

OCTOBER 01, 1986

JOHN E. FORD
v.
C. W. WHITE AND C. T. WHITE



BEFORE WALKER, C.J., SULLIVAN AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This action comes before us from the Chancery Court of the Second Judicial District of Yalobusha County, Mississippi. In response to plaintiff's complaint, defendant filed a M.R.C.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted, which the lower court sustained. We reverse the lower court's judgment, and remand the cause to that court for further proceedings consistent with this opinion.

On March 5th, 1976, C. W. White and C. T. White executed a lease agreement, as lessors, with the Lewis Grocer Company of Indianola, Mississippi, to build a convenience food store and a parking lot according to detailed plans and specifications prepared by and at the expense of lessors, and to be approved by the Lewis Grocer Company.

 The primary term of the lease was to extend ten years, with an option to renew the lease for four successive terms of five years each. The lease contained twenty-five separately drawn paragraphs. Pertinent to this case is the paragraph which reads,

 If the leased premises be destroyed by fire, the elements or other casualty, then lessors should repair or replace such damages within a reasonable time after the occurrence of the damage.

 This lease between the Whites and the Lewis Grocer Company was fixed for a term beginning on July 22, 1976, and ending at midnight July 21, 1986.

 The lease was subsequently reassigned several times until it landed in the hands of assignee John Ford, appellant in this case. Then, only three days after this last conveyance, a series of tornadoes struck Water Valley and the building was destroyed completely. Ford's telephone calls to the Whites requesting that they fulfill their contractual duty to rebuild went unanswered and were not timely acted upon. Ford alleges that he suffered damages to his equipment and

 supplies located in the store when the tornado struck, as well as the loss of inventory and stock purchased in anticipation of his reopening his business upon reconstruction of the building. Further, Ford alleges that he was forced to rent storage space in the interim and that he suffered a net loss of $3,000 per month over and above his operating expenses for the failure and refusal of the Whites to reconstruct the convenience food store and parking lot area.

 Ford filed a complaint against the Whites on September 24, 1985, for breach of covenant, seeking specific performance and consequential damages incurred, and prayed as well for punitive damages. Defendants declined to file an answer, but instead filed a 12(b)(6) motion to dismiss on the grounds that: (1) the complaint failed to state a claim upon which relief may be granted; (2) there exists no contractual relationship between the plaintiff and defendants due to the language of the lease, the assignment and sublease; and (3) the lease is between the Lewis Grocer Company, as lessee, and the Whites, lessors.

 On appeal, this Court need only address the 12(b)(6) motion to dismiss made by defendants, which we hold the Chancery Court erred in sustaining.

 A 12(b)(6) motion to dismiss has replaced and become a successor to what was formally recognized as the common law demurrer. Once the trial court entertains the motion and proceeds to sustain such motion, the effect is to forego deciding the case on its merits, simply because plaintiff did not, as required by our judicial system, state a claim upon which relief may be granted. However," we are mindful of the current judicial practice favoring disposition of cases on their merits. "Franklin County Co-op v. M.F.C. Services (A.A.L.), 441 So.2d 1376 (Miss. 1983). In keeping with this trend, we note that while the 12(b)(6) motion is the correct means to test the legal sufficiency of the complaint, for it to be properly granted it must appear to a certainty that the plaintiff is entitled to no relief under any set of facts presented that could be proven in support of his claim. Franklin, supra, at 1376; Stanton & Associates, Inc. v. Bryant Construction Co., 464 So.2d 499 (Miss. 1985); and Busching v. Griffin, 465 So.2d 1037 (Miss. 1985). We cannot say to a certainty that plaintiff, under any set of facts that could be proved in support of his claim, would not be entitled to relief in this action.

 The chancellor sustained appellee's motion to dismiss and proceeded without presentation of any evidence pertinent to the cause on the basis that appellant's claim did not

 establish that as assignee of the lease he was entitled to a cause of action for breach of the lease, the court finding instead that the original lessee, the Lewis Grocer Company, was the sole party who might have a cause of action against the lessors. The chancellor noted that the Lewis Grocer Company, and not Ford, had the obligation and continuing responsibility for the rent beyond the time of assignment and not just up to the time it was signed. The chancellor concluded that the Lewis Grocer Company could not discharge its responsibilities to the lessors simply by assigning a lease of its choosing to its assignee. The lessee may still be bound by its lease with the lessor, and the chancellor in his opinion quotes a portion of the lease applicable to this proposition, which reads:

 Provided that in the event that the lessee does assign or sublease said premises or any part thereof, lessee shall nevertheless be ...


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