Tina Lee v. Keller Williams Realty , 247 So. 3d 293 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00874-COA
TINA LEE APPELLANT
v.
KELLER WILLIAMS REALTY APPELLEE
DATE OF JUDGMENT: 05/20/2016
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: TINA LEE (PRO SE)
ATTORNEYS FOR APPELLEE: LAWRENCE LEE LITTLE
TARA BETH SCRUGGS
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 11/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Tina Lee appeals the DeSoto County Circuit Court’s grant of Keller Williams Realty’s
motion for summary judgment dismissing Lee’s complaint concerning her leased home’s
conditions. Because the lease agreement’s provisions control and Keller Williams did not
assume the duty to repair, the trial judge did not err in granting summary judgment. We
therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On April 19, 2013, Lee entered into an agreement with Keller Williams, through its
agent Melissa Parish, to lease a residence in Horn Lake, Mississippi. The lease was for a
period of approximately one year, with rent to be paid monthly in the sum of $875. Under the
terms of the agreement, Lee agreed that the premises would be occupied by only two
occupants—herself and her seven-year-old son. Further, the agreement contained a
“condition of the premises” clause and an “indemnity” clause, which relieved Keller
Williams of its duty to make repairs to the property after the inception of the lease.
¶3. Lee moved into the property on May 17, 2013, finding that it was in good condition.
Three days later, after a heavy rain, the back room began to flood. This allegedly occurred
many times throughout the lease period, and, according to Lee, she informed Parish of the
problem. The occasional flooding and resulting mold, according to Lee, resulted in damages
to herself and her son.
¶4. On March 20, 2014, Lee filed a complaint against Keller Williams and Anderson
Rentals LLC alleging negligence and breach of contract for failure to repair the property or
relocate her to another property. On July 8, 2015, without notice to the parties or permission
from the court, Lee filed a “Supplemental and Amended Complaint,” adding an additional
negligence claim for permanent injuries to her son in the form of ringworm and a mold
allergy. Subsequently, Keller Williams and Anderson Rentals moved for summary judgment.
After holding a hearing on the matter, the trial court judge granted Keller Williams’s motion
for summary judgment and dismissed the case against Anderson Rentals. Lee appealed the
grant of Keller Williams’s summary-judgment motion to this Court.
¶5. On appeal, Lee asserts the trial court erred because (1) she did not waive Keller
Williams’s duty to repair the property, and (2) Keller Williams assumed the duty to repair.
Additionally, Keller Williams asserts that Lee’s amended complaint was not procedurally
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proper before the circuit court and cannot be a basis for appeal.
STANDARD OF REVIEW
¶6. Grants of summary judgment are reviewed de novo, with the evidence viewed in the
light most favorable to the nonmovant. Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9)
(Miss. 2013). Upon review, this Court examines “all the evidentiary matters before [it],
including admissions in pleadings, answers to interrogatories, depositions, and affidavits.”
Albert v. Scott’s Truck Plaza Inc., 978 So. 2d 1264, 1266 (¶5) (Miss. 2008) (citation
omitted). “If no genuine issue of material fact exists and the moving party is entitled to [a]
judgment as a matter of law, summary judgment should be entered in that party’s favor.”
Stringer v. Trapp, 30 So. 3d 339, 341 (¶9) (Miss. 2010).
DISCUSSION
I. Amendment of Pleadings
¶7. After Keller Williams answered Lee’s complaint, Lee filed a supplemental and
amended complaint without consent of the opposing side or permission from the circuit
court. Keller Williams asserts that this amended complaint and its claims made on behalf of
Lee’s minor child were not properly before the circuit court and cannot be a basis for appeal.
Keller Williams argues that Lee filed her supplemental and amended complaint in violation
of Mississippi Rule of Civil Procedure 15 because Keller Williams had answered Lee’s
original complaint before she filed her supplemental and amended complaint. After
reviewing the record, we find the supplemental and amended complaint was not properly
allowed to be filed and cannot be before this Court on appeal.
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¶8. Rule 15 allows a party to amend a pleading as a matter of course until a responsive
pleading has been served or after service of such responsive pleading with permission of the
circuit court. M.R.C.P. 15(a). While the decision on a motion to amend is in the sound
discretion of the trial court and will not be overturned unless there was a clear abuse of
discretion, the record here is void of any motion for leave to amend by Lee. Therefore, under
our law, the supplemental and amended complaint had not been properly filed and should
have been struck. D.P. Holmes Trucking LLC v. Butler, 94 So. 3d 248, 255 (¶20) (Miss.
2012) (“If a party fails to seek leave of the court or permission of the opposing party prior
to amending the pleadings, such amendment is improper and will be struck.”).
¶9. Lee asserts that Keller Williams fails to point to any part of the record where a motion
to strike her amended complaint was made and heard by the trial court, and, therefore, Lee
asserts Keller Williams waived this argument. However, on August 10, 2015, Keller
Williams filed a motion to dismiss Lee’s supplemental and amended complaint, citing Rule
15. While the record does not indicate that the judge entered an order dismissing the
amended complaint, the transcript from the summary-judgment hearing makes it clear that
the judge did not consider Lee’s supplemental and amended complaint. Notwithstanding the
judge’s failure to rule on the motion to dismiss Lee’s amended complaint, the supplemental
and amended complaint was not properly before the court, making Lee’s argument moot.
¶10. The record is clear that Lee filed her first complaint on March 20, 2014, and on April
22, 2014, Keller Williams filed its answer and affirmative defenses. Once Keller Williams
filed its answer, a responsive pleading, Lee lost her ability to file an amended pleading as a
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matter of course. It was not until July 8, 2015, that Lee filed a supplemental and amended
complaint. There is no record that Lee obtained the court’s or opposing side’s permission
before filing this amended complaint. Thus, the supplemental and amended complaint was
not procedurally proper. With the resolution of this issue, we will now turn to Lee’s
individual claim.
II. Keller Williams’s Duty
¶11. As the plaintiff in a breach-of-contract claim, Lee bore the burden to prove the
existence of a valid contract, a breach of that contract, and damages. Suddith v. Univ. of S.
Miss., 977 So. 2d 1158, 1175 (¶35) (Miss. Ct. App. 2007). The circuit court held that Lee
failed to provide sufficient evidence to establish the existence of an essential element on
which she bears the burden of proof at trial—namely the breach of any duty owed under the
contract. See Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010) (“Moreover, summary
judgment is appropriate when the non[ ]moving party has failed to make a showing sufficient
to establish the existence of an element essential to the party’s case, and on which that party
will bear the burden of proof at trial.” (Internal quotations omitted)).
¶12. Lee urges that we should find Keller Williams breached its duty to make repairs to the
property or relocate her to another property. Her argument is based on dual assertions. First,
she asserts the condition-of-the-premises clause and indemnity clause did not constitute a
waiver because they violated Mississippi statutory law and are against public policy. Next,
she asserts Keller Williams had constructive knowledge of the dangerous condition and
assumed the duty to repair the property through the actions of its agent, Parish. We find no
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merit to either assertion.
A. Waiver of Duty
¶13. First, Lee asserts that the condition-of-the-premises and indemnity clauses within
Keller Williams’s agreement did not constitute a waiver because they violated Mississippi
statutory law and are void as a matter of public policy. This issue was not previously raised
in any pleadings or at the summary-judgment hearing. It therefore cannot be properly raised
before the Court today. Brown v. Thompson, 927 So. 2d 733, 738 (¶16) (Miss. 2006) (“It is
well[-]settled Mississippi law that there is a procedural bar to considering issues not first
raised at trial.”).
¶14. Notwithstanding the improper procedural posture of this issue, we find no merit in
Lee’s contention. Lee cites two statutory provisions, neither of which apply. First, she
attempts to bolster her argument by citing to Mississippi Code Annotated section 89-7-21
(Rev. 2011). Her reliance on this statute is misguided for two reasons. First, this statute by
its terms only applies to “lessees of lands for a term of years, life or lives.” Id. Lee’s lease
is not a lease for a term of years, but is rather a periodic month-to-month lease. See Miss.
Code Ann. § 89-8-19(1) (Rev. 2004) (“Unless the rental agreement fixes a definite term a
tenancy shall be week to week in case of a tenant who pays weekly rent, and in all other cases
month to month.”). Second, section 89-7-21 is wholly about the lessee’s right of recovery
against assignees of the lessor. This statutory provision extends a lessee’s right against the
lessor to any assignees of the lessor. Keller Williams, the lessor, has not assigned or gifted
its right to another party, and therefore this statute does not apply. Lee apparently asserts that
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this statute gives rise to an additional duty of Keller Williams. Even if this statute were
applicable to this case, it does not establish any additional duties or obligations of the lessor.
¶15. Next, she relies on Mississippi Code Annotated section 75-24-161(c) (Rev. 2016).1
Her reliance on this statute is also misguided, as this statute concerns rental-purchase
agreements. By its definition section, a rental-purchase agreement is “an agreement for the
use of personal property by a natural person primarily for personal, family or household
purposes, for an initial period of four (4) months or less that is automatically renewable with
each payment after the initial period, . . . and that permits the consumer to become the owner
of the property.” Miss. Code Ann. § 75-24-153(f) (Rev. 2016) (emphasis added). The
agreement in the current case is simply a residential lease. There is no provision in the rental
agreement that purports to offer any ownership interest in the property besides that of a
tenant.
¶16. Despite the inapplicability of these statutes to the current case, Mississippi has
adopted an implied warranty of habitability. See Sweatt v. Murphy, 733 So. 2d 207, 209-10
(¶¶7-8) (Miss. 1999). This warranty imposes a duty on all landlords to “provide reasonably
safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous
defective conditions upon notice of their existence by the tenant, unless expressly waived by
the tenant.” Martin v. Rankin Circle Apartments, 941 So. 2d 854, 862 (¶32) (Miss. Ct. App.
2006) (emphasis added) (quoting Sweatt, 733 So. 2d at 210 (¶7)). Waiver constitutes an act
or inaction voluntarily and intentionally made evincing the relinquishment of a known right.
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Lee’s brief incorrectly refers to this statute as 41-24-161(c).
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See Rolison v. Fryar, 204 So. 3d 725, 733 (¶16) (Miss. 2016). Further, the Mississippi
Residential Landlord and Tenant Act provides that a “landlord and tenant may agree in
writing that the tenant perform some or all of the landlord’s duties under this section, but
only if the transaction is entered into in good faith.” Miss. Code Ann. § 89-8-23(3) (Rev.
2011). Moreover, “[c]lauses that limit liability are given strict scrutiny . . . and are not to be
enforced unless the limitation is fairly and honestly negotiated and understood by both
parties.” Royer Homes of Miss. v. Chandeleur Homes Inc., 857 So. 2d 748, 754 (¶22) (Miss.
2003). Thus the question becomes whether Lee and Keller Williams entered into the
agreement in good faith, with an understanding of the agreement’s provisions.
¶17. Keller Williams, relying on Lee’s deposition and the terms of the agreement, asserts
that the agreement was entered into in good faith. Lee asserts that she did not knowingly
waive any of her rights, nor did she know that she was waiving the rights of her minor child.
¶18. Reviewing the record, it is clear that Lee understood the agreement’s provisions and
that she voluntarily entered into the agreement with such provisions, constituting a waiver.
Repeatedly, in answering Keller Williams’s requests for admission and in her deposition, Lee
admitted that she fully understood the agreement and the contents therein. Further, the first
page of the agreement contained a provision stating that “[t]his is a legally binding document.
If any party to this lease does not fully understand it, or has any question, the party should
seek advice from competent legal professional before signing.” Because the record is clear
and undisputed that Lee entered into the agreement voluntarily with a full understanding of
its contents, the agreement and its provisions waiving Keller Williams’s duty to repair are
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valid and enforceable.
B. Assumption of Duty
¶19. Lee argues that, regardless of the waiver of duty, Keller Williams assumed the duty
to make repairs through the actions of its agent. Lee claims, as she did at the summary-
judgment hearing, that she informed Parish of the conditions several times via email with
pictures attached. Lee claimed that Parish’s response to those emails—that she would see
what could be done—is sufficient to show that Keller Williams assumed the duty to repair.
The trial judge found that this argument was insufficient to “take this case out of the terms
of the contract.” We agree.
¶20. In Mississippi, it is well established that a duty can be assumed in two ways, by
contract or detrimental reliance on a gratuitous promise. Doe v. Hunter Oak Apartments L.P.,
105 So. 3d 422, 427 (¶20) (Miss. Ct. App. 2013). In the present case there has been no
evidence suggesting that the duty was assumed through the contract. So if a duty were
assumed, as asserted by Lee, it could have only been through a gratuitous promise. This
Court, in Doe, summarized assumption of duty through gratuitous promise as follows:
The mere promise to act does not create a duty to act. The promise to act must
induce detrimental reliance for liability to arise. For a party to be held liable
for negligent performance of a gratuitous or voluntary act, the plaintiff must
show detrimental reliance on the performance.
Id. (internal citations and quotation marks omitted). In the present case, Lee has failed to
show any evidence of detrimental reliance on a gratuitous promise. The only evidence Lee
offers to support her claim is that Parish told her that she would see what she could do. This
statement alone is not enough for assumption of a duty; there was no promise for any
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detrimental reliance to be based upon.
¶21. Lee further asserts, for the first time in her brief, that Parish’s knowledge of the
conditions is similar to constructive knowledge in slip-and-fall cases, citing Drennan v.
Kroger Co., 672 So. 2d 1168 (Miss. 1996). While this is the correct law in slip-and-fall
scenarios, the case before us today is not a slip-and-fall case. Slip-and-fall cases are based
on a business owner or operator’s duty to keep the premises in a reasonably safe condition.
Id at 1170. Unlike a slip-and-fall case, Keller Williams had no duty to keep the premises
reasonably safe after the inception of the lease because of the waiver provisions within the
agreement, and as Lee had dominion and control over the leased premises.
CONCLUSION
¶22. Having reviewed the record and briefs of the parties de novo, we affirm the circuit
court’s judgment.
¶23. AFFIRMED.
LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR AND WESTBROOKS, JJ.,
CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.
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