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EDWARD E. SANFORD D/B/A SANFORD'S STUDIO AND SANFORD PHOTOGRAPHY v. JACKSON MALL SHOPPING CENTER COMPANY

NOVEMBER 25, 1987

EDWARD E. SANFORD D/B/A SANFORD'S STUDIO AND SANFORD PHOTOGRAPHY
v.
JACKSON MALL SHOPPING CENTER COMPANY, A PARTNERSHIP



BEFORE DAN LEE, P.J., SULLIVAN AND ANDERSON, JJ.

DAN LEE FOR THE COURT:

On December 27, 1971, Sanford and Jackson Mall entered into a lease which allowed Sanford to operate a photography studio in the Jackson Mall in Jackson, Mississippi. The lease was for a term of ten years plus a partial lease year, if any, prior to the first lease year. Mr. Sanford claims he began occupation of the premises sometime in January of 1972 and that he vacated the premises on December 31, 1982, believing that his lease term had expired. Jackson Mall contends that the lease year did not expire until the end of July 1982; therefore, Jackson Mall filed a complaint against Sanford in the County Court of the First Judicial District of Hinds County, Mississippi, alleging that Sanford had breached his lease by failing to pay rent from February 1982 through July 1982. Sanford filed a motion to dismiss the complaint on August 16, 1982. Jackson Mall filed a motion for summary judgment on April 14, 1983. Hearing on Jackson Mall's motion for summary judgment was set for May 6, 1983, but counsel for Jackson Mall failed to appear for argument. The county court judge denied Jackson Mall's motion for summary judgment because its counsel failed to appear. Jackson Mall then filed a motion on May 9, 1983, to vacate the denial of the summary judgment and to reconsider the motion for summary judgment. On May 12, 1983, Sanford filed his notice of hearing on his motion to dismiss. On June 2, 1983, the county court denied Jackson Mall's motion for summary judgment and granted Sanford's motion to dismiss. That order constituted final judgment on those two motions. Jackson Mall appealed to the Circuit Court of Hinds County. At a hearing, that court reversed the order of the County Court; denied Sanford's motion to dismiss; granted Jackson Mall's motion for summary judgment; and entered judgment in favor of Jackson Mall. Mr. Sanford appeals that judgment to this Court assigning four errors:

I. THE COURT ERRED IN REVERSING THE ORDER OF THE COUNTY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI, DATED JUNE 2, 1983.

 II. THE COURT ERRED IN DENYING THE MOTION TO DISMISS FILED BY EDWARD E. SANFORD, D/B/A SANFORD'S STUDIO AND SANFORD PHOTOGRAPHY.

 III. THE COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY JACKSON MALL SHOPPING CENTER COMPANY, A PARTNERSHIP.

 IV. THE COURT ERRED IN ENTERING JUDGMENT IN FAVOR OF JACKSON MALL SHOPPING CENTER COMPANY, A PARTNERSHIP AGAINST EDWARD E. SANFORD, D/B/A SANFORD STUDIO AND SANFORD PHOTOGRAPHY.

 On December 27, 1971, Sanford and Jackson Mall, Inc. entered into a lease agreement which allowed Sanford to operate a photography studio in the Jackson Mall in Jackson, Mississippi. Both the cover page of the lease and the first page of the lease agreement reflect the December 27, 1971, date. Mr. Sanford also received a letter from the supervisor of billing adjustments for Jackson Mall sometime during the lease term which indicates that the lease was dated December 27, 1971. The lease was for a term of ten years plus any partial lease years. A lease year is defined by the lease agreement to mean a period of 12 consecutive calendar months, the first lease year commencing on the first day of January next following the commencement date of the lease term, and each succeeding lease year was to commence on January 1 of each calendar year thereafter. Any portion of the lease term which was less than a lease year was to be deemed a partial lease year. There is also a clause in the lease which says that the lease becomes effective only upon execution and delivery thereof by landlord and tenant.

 Mr. Sanford claims that he paid rent on the premises beginning December 27, 1971, as evidenced by his affidavit and the letter from Jackson Mall's supervisor of billing adjustment. Mr. Sanford also claims that he opened for business during the first few days of January 1972, and that he began taking photographs almost immediately. Mr. Sanford vacated the premises at the end of December 1982, claiming to have paid rent for the full ten-year lease term.

 Jackson Mall contends that the lease was not executed by Mr. Sanford until January 3, 1972, and by Jackson Mall on January 7, 1972. The affidavit of the general manager of Jackson

 Mall Shopping Center states that Sanford did not open for business until August 2, 1972, when he completed "tenant's work," and that Sanford's use of the leased premises from August 2, 1972 through December 31, 1972, constituted a "partial lease year." Therefore, according to Jackson Mall, the first full lease year of the ten-year term did not begin until January 1, 1973, and the ten years of the lease did not expire until December 31, 1982. Jackson Mall argues, however, that even if Mr. Sanford opened for business on January 3, 1972, 1972 was still a partial lease year since he did not open for business on January 1 of 1972. For this reason, Jackson Mall argues, the lease did not expire until December 31, 1982, that Sanford breached the lease by leaving on December 31, 1981, and that Sanford owes Jackson Mall another year's rent. Mr. Sanford claims that January 3, 1972, was the first official business day of 1972.

 Mr. Sanford's four assignments of error deal with the same argument, that the Circuit Court erred when it reversed the county court's judgment and granted Jackson Mall's motion for summary judgment and denied his motion to dismiss.

 In his argument, Mr. Sanford alleges that summary judgment was not proper in this case because there were several genuine issues of material fact in dispute. We agree.

 In the first place, the affidavits of Sanford and the general manager of Jackson Mall show a direct conflict as to the central issue in this suit: when was the first full lease year and when was the partial lease year. The general manager states that Sanford opened for business on August 2, 1972, and that the use of the premises before August 2, 1972, was "Tenant's Work Period." On the other hand, Sanford states that he paid rent on December 27, 1971, and opened for business on January 3, 1972, the first official business day of 1972.

 Jackson Mall contends that the lease unambiguously responds to the issue of when the partial lease year ended and when the first full lease year began by pointing to three definitional terms in the lease which expressly define a lease year as beginning on January 1, expressly define a partial lease year as "from the date that the term of this lease begins through the following December ...


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