THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF
Helen L. Fleshman, as Personal Representative of the Estate of James G. Fleshman, Appellant,
Trilogy and CarOrder.com, Respondents.
Reginald I. Lloyd, Circuit Court Judge
Unpublished Opinion No. 2005-UP-354
Submitted April 1, 2005 – Filed May 23, 2005
W. Ralph Garris, of
Columbia, for Appellant.
Gregory Jacobs English, of
Greenville, for Respondents.
PER CURIAM: In this landlord/tenant action, Helen L. Fleshman, in her capacity as personal representative to the estate of her late husband, James G. Fleshman, appeals a circuit court’s grant of summary judgment in favor of Trilogy and CarOrder.com (collectively Respondents). We affirm.
James G. Fleshman owned commercial property in
With Fleshman’s consent, CarOrder.com entered into a sublease with a company known as Bentley’s for a term beginning on September 1, 2000 and ending on August 14, 2002. Bentley’s agreed to pay rent and to maintain the premises as required under the master lease between Fleshman and CarOrder.com. Fleshman approved the agreement in writing by signing the sublease. In May 2001, Dance
On June 6, 2002, CarOrder.com provided written notice to Fleshman that it would not exercise its option to renew the master lease and that both leases would terminate on August 14, 2002. On August 8, 2002, Dance
Ultimately, Fleshman successfully brought an ejectment proceeding against Dance
Respondents filed a motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6), SCRCP. Fleshman amended the complaint twice, and the parties agreed the motion to dismiss would apply to both amended complaints. The trial court granted the motion and denied Fleshman’s subsequent motion to reconsider.
“In deciding whether the trial court properly granted the motion to dismiss, this Court must consider whether the complaint, viewed in the light most favorable to the plaintiff, states any valid claim for relief.” Flateau v. Harrelson, 355 S.C. 197, 202, 584 S.E.2d 413, 415 (Ct. App. 2003) (citing Gentry v. Yonce, 337 S.C. 1, 5, 522 S.E.2d 137, 139 (1999) and Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct. App. 1999)).
I. Motion to Dismiss
Fleshman argues the trial court erred in granting the motion to dismiss because Respondents assumed the role of landlord when they sublet the property. We disagree.
When a defendant demonstrates that a plaintiff has failed to state facts sufficient to constitute a cause of action, the trial court may dismiss the claim. The Hous. Auth. of City of Columbia v. Cornerstone Hous., LLC, 356 S.C. 328, 333-34, 588 S.E.2d 617, 620 (Ct. App. 2003) (citations omitted). A dismissal pursuant to Rule 12(b)(6), SCRCP, is appropriate when the factual allegations in the complaint, even if assumed to be true, fail to state a cause of action. Chewning v. Ford Motor Co., 346 S.C. 28, 32-33, 550 S.E.2d 584, 586 (Ct. App. 2001).
Section 27-35-60 of the South Carolina Code (1991), defines the relationship and correspondent duties between a landlord, tenant, and sublessee as follows:
A sublease by a tenant without written consent of the landlord is a nullity insofar as the rights of the landlord are concerned, except that rent collected by a tenant from a subtenant shall be deemed to be held in trust by the tenant for the benefit of the landlord until the payment of the landlord’s claim for rent. But when the premises have been sublet the sublessor, as between himself and the subtenant or sublessee, shall be deemed the landlord and the sublessee the tenant under him and the provisions of Chapters 33 through 37, § 27-39-10 and Article 3 of Chapter 39 of this Title, other than §§ 27-35-80, 27-35-170 and 27-35-180, 27-39-280 and 27-39-300 shall apply to sublessors and sublessees, as between themselves, as in other cases of landlord and tenant.
Significantly, statutes governing ejectment proceedings apply only when a landlord and tenant relationship actually exists. See, e.g., Stewart-Jones Co. v. Shehan, 127 S.C. 451, 456, 121 S.E. 374, 376 (1924); see also S.C. Code Ann. § 27-37-20 (1991) (providing an ejectment action is instituted by a magistrate-issued rule upon application of the landlord). The term “landlord” includes “the owner or person in possession or entitled to possession of the real estate used or occupied by the tenant.” S.C. Code Ann. § 27-33-10(7) (1991).
When interpreting a contract that is clear and unambiguous, the court must construe its provisions according to the terms used by the parties, understood in their plain, ordinary, and popular sense. Schulmeyer v. State Farm Fire & Cas.
Section 27-35-60 provides for situations in which the sublease was obtained without the consent of the landlord. In the instant case, Fleshman provided written consent by signing the sublease. Thus, the statute did not create a duty by which Respondents became landlords and were under an obligation to eject Dance
Similarly, no contractual responsibility in this regard was created in the sublease. Certainly, Fleshman’s letter to Trilogy declining to exercise the renewal option did not create a duty to eject. Even assuming for the sake of argument that a contractual responsibility was created in the lease or sublease, Fleshman did not raise this argument at trial, and he cannot raise this issue for the first time on appeal. See, e.g., Brown v. Theos, 338 S.C. 305, 312-13, 526 S.E.2d 232, 237 (Ct. App. 1999).
Any duties Respondents owed to Fleshman ceased upon termination of the lease on August 14, 2002. Thereafter, Dance
Because Fleshman has not demonstrated that Respondents owed a duty to eject Dance
II. Motion to Reconsider, Alter, or Amend the Judgment
Fleshman contends the trial court erred in denying his motion to reconsider because the trial court failed to make findings of fact and conclusions of law pursuant to Rules 41 and 52, SCRCP. We disagree.
According to Rule 41(b), “[i]f the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).” However, Rule 52(a) provides that findings of fact and conclusions of law are unnecessary when a court decides motions under Rule 12.
Rule 41, is not applicable to this case. It applies in situations where the plaintiff has presented all of its evidence. In this case, Respondents moved to dismiss pursuant to Rule 12(b)(6). Because Rule 52, SCRCP does not require the trial court to make findings of fact or conclusions of law in Rule 12 rulings, the trial court did not err in issuing a form order.
HEARN, C.J., KITTREDGE, and WILLIAMS, JJ., concur.
 When James Fleshman died on September 3, 2003, Helen L. Fleshman, as the personal representative of the estate of James Fleshman, was substituted as the plaintiff in the action.
 We decide this case without oral argument pursuant to Rule 215, SCACR.