           IN THE SUPREME COURT OF MISSISSIPPI
                     NO. 97-CT-00113-SCT
HAROLD W. WRIGHT, HUGH G. PAYNE AND CURRY HOLLAND
v.
RUB-A-DUB CAR WASH, INC., KENT LANGDON AND HELEN LANGDON
                  ON WRIT OF CERTIORARI
DATE OF JUDGMENT:   01/08/97
TRIAL JUDGE:                       HON. WILLIAM L. GRIFFIN, JR.
COURT FROM WHICH                   WASHINGTON COUNTY CHANCERY COURT
APPEALED:
ATTORNEY FOR                       HAROLD WILSON DUKE
APPELLANTS:
ATTORNEY FOR APPELLEES:            WILLARD L. McILWAIN, JR.
NATURE OF THE CASE:                CIVIL - CONTRACT
DISPOSITION:                       AFFIRMED IN PART; REVERSED AND REMANDED IN PART
                                   - 08/12/1999
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 09/02/1999




     EN BANC.

     SMITH, JUSTICE, FOR THE COURT:

¶1. Rub-A-Dub Car Wash, Inc., Kent Langdon and Helen Langdon brought an action in the Chancery
Court of Washington County, alleging that they lost the sale of a car wash because the owners of the
property, Harold W. Wright, Hugh G. Payne, and Curry Holland (hereinafter referred to collectively as
WPH), upon which the car wash was located unreasonably refused to permit them to assign their lease of
the land to the prospective purchasers. The Chancery Court found that the refusal was unreasonable and
awarded Rub-A-Dub and the Langdons $50,000 in damages. WPH appealed. The Court of Appeals
reversed and remanded as to the ownership of certain underground gasoline storage tanks, reversed and
rendered as to the damages awarded, finding that Rub-A-Dub and the Langdons failed to prove the refusal
to allow the assignment of the lease was unreasonable. The Court of Appeals also reversed and remanded
on the owners' counterclaim. Rub-A-Dub and the Langdons filed a Petition for Writ of Certiorari which we
granted.

                                                FACTS

¶2. Kent Langdon and Helen Langdon, the sole shareholders in Rub-A-Dub Car Wash, Inc., owned and
operated a business on land which was leased from WPH. One of the terms of the lease specified that Rub-
A-Dub could not assign the lease without express written consent of WPH, which could not be
unreasonably withheld.

¶3. The Langdons and Rub-A-Dub Car Wash, Inc. (hereinafter referred to as Rub-A-Dub), entered into a
sales contract for the sale of the business for $85,000. WPH had concerns regarding leaking that may be
occurring from some underground gasoline storage tanks located on the premises which had been installed
by a previous tenant. WPH stated that it would agree to the assignment of the lease on the condition that
either Rub-A-Dub or the prospective buyers, Mortimer and Stokes, agreed to assume all liability for the
condition of the tanks and take whatever action was necessary to satisfy the state and federal EPA
regarding the tanks, including removing them if so required. Neither Rub-A-Dub nor Mortimer and Stokes
agreed to the conditions placed on the consent to the assignment by WPH, and the sale was never
completed.

¶4. Rub-A-Dub brought an action in the Chancery Court of Washington County against WPH alleging that
they had unreasonably withheld their consent to the assignment of the lease and requested that they be
awarded damages for the loss of the sale of the business to Mortimer and Stokes. The case was submitted
to the trial court on a stipulation of facts and exhibits, briefs submitted by each party, and proposed findings
of fact and conclusions of law submitted by each party.

¶5. The trial court made the following findings of fact:

      1. The chancellor has jurisdiction of the parties and the subject matter.

      2. By Order of this Court, Kent Langdon and Helen Langdon were joined as Plaintiffs on July 25,
      1996.

      3. Defendants, at all relevant times hereto, were the owners of that certain real property located on
      Hwy. 82 East, Greenville, Mississippi, known as "Rub-A-Dub Car Wash".

      4. On or about May 21, 1973, Defendants leased the property on Hwy. 82 East, Greenville,
      Mississippi to Harry Vickery (Vickery).

      5. Vickery could not assign the lease without the consent of the Defendants, said consent not to be
      unreasonably withheld.

      6. When Vickery leased the property, it was unimproved real estate.

      7. Vickery installed a mechanical car wash known as "Rub-A-Dub Car Wash" and three underground
      gasoline tanks.

      8. The Lease did not authorize or give permission to Vickery to install underground gasoline storage
      tanks, but Defendants had knowledge of the installation of the gas tanks and did not object.

      9. On or about January 2, 1975, Vickery subleased the property to Kathleen I. Turner and David W.
      Turner (Turner).

      10. Defendants consented to the assignment from Vickery to Turner.
11. On March 23, 1988, Defendants herein entered into a new Lease with Kathleen I. Turner and
David W. Turner.

12. The Lease of March 23, 1988, provided that the Lease could not be assigned or sublet "without
the express written consent of Lessors, which consent could not be unreasonably withheld."

13. On or about May 2, 1990, Kathleen I. Turner subleased the property to Plaintiff, Rub-A-Dub
Car Wash, Inc., a Mississippi corporation.

14. Defendants consented to this assignment, but denied that they were the owners of the gasoline
storage tanks located on the real property which was the subject of the lease.

15. Rub-A-Dub Car Wash, Inc. is a Mississippi Corporation. Helen Langdon is Vice-President and
Charles Langdon is President. The Langdons are the only stockholders of the corporation.

16. On May 4, 1990, Rub-A-Dub Car Wash, Inc. purchased the business and all of the equipment
of the Rub-A-Dub Car Wash "including all office equipment, including cash registers, chairs, air
conditioning units, desks and all personal property except gasoline storage tanks." (Emphasis
added by the [chancery] Court.)

17. The Bill of Sale from Kathleen Turner to the Plaintiffs acknowledged that the gasoline storage
tanks had spillage and/or leakage.

18. The consideration for the May 4, 1990, transaction, which included the transfer of assets and the
assignment of the lease, was $35,000.00. Defendants consented to this assignment.

19. Plaintiffs did not seek or obtain the permission from the Defendant owners of the property herein
to continue to use the gasoline storage tanks.

20. Plaintiffs did not have the express permission from Defendants to utilize the gasoline storage tanks
for the purposes of selling gasoline; however, there was never an objection from the Defendants to
such use.

21. On or about August 24, 1994, and again on October 25, 1994, Plaintiff requested that
Defendants agree to a sublease of the property herein.

22. On August 29, 1994, in response to a request that Defendants agree to an assignment of the
lease, Defendants advised they would agree to an assignment of the Lease to Stokes and Mortimer
but, "Specifically, Rub-A-Dub Car Wash, Inc. must agree to whatever is necessary to satisfy the state
and/or federal EPA with regard to the underground gas storage tanks located on the premises. This
would include removal or filling of the tanks with some suitable fill such as sand or whatever else the
state and/or federal authorities would require in connection with the tanks. If Rub-A-Dub does not
desire to do this, then, the Lessors will agree to the assignment to Mortimer and Stokes if Mortimer
and Stokes will individually and personally agree to assume the responsibility for the existing
conditions and present use of the underground storage gas tanks."

23. On September 28, 1994, Charles Langdon and Helen Langdon entered into a Sales Contract for
the "Rub-A-Dub Car Wash" with Hilton Stokes and Robert Mortimer. The sales price was $85,000.
      24. This Sales Contract did not provide for the right of the purchaser to use the underground gas
      storage tanks.

      25. Charles and Helen Langdon had knowledge when they entered into the Sales Contract that the
      Defendants had reservations concerning the gas storage tanks.

      26. Neither the Plaintiff nor Mortimer and Stokes would agree to the conditions placed by
      Defendants on the assignment.

      27. Defendants now deny that they are the owners of the storage tanks.

¶6. Based on his findings of fact, the chancellor concluded the following:

      The gasoline storage tanks and the liability attached to their ownership lies totally with Defendants.
      Vickery abandoned the tanks, as he did the building, and their value, or, as fate would have it, their
      liability, became the property of Defendants. Defendants enjoyed the benefits of the tanks without
      complaint from 1973 until 1994, when their consent to an assignment was requested. They should
      not, in equity, be allowed to use the request for their consent to an assignment as an opportunity to re-
      write the lease and thereby abdicate their responsibilities with regard to liability. That is exactly what
      they tried to do by their unreasonable requests, compliance with which requests were a condition
      precedent to their consent to the assignment.

      The Court notes that if the same requests which were made to Plaintiff and to Mortimer and Stokes
      were part of the negotiations of a new lease, they might very well be reasonable. But under the facts
      now before the Court, they are unreasonable.

¶7. The chancellor awarded damages in the amount of $50,000 to Rub-A-Dub for the loss of the sale to
Mortimer and Stokes. WPH appealed, and the case was assigned to the Court of Appeals, which reversed
and remanded on the issue of ownership of the tanks concluding that the issue of ownership of the tanks
was not before the trial court and that the trial court's findings were not supported by the record.

¶8. Regarding the award of $50,000, the Court of Appeals reversed and rendered finding that Rub-A-Dub
had not met its burden of proof in showing WPH's refusal was unreasonable. Rub-A-Dub filed a Motion
for Rehearing in the Court of Appeals which was denied. We subsequently granted certiorari to consider
these issues:

      I. WHETHER OR NOT THE CHANCELLOR ERRED IN RULING THAT
      APPELLANTS WERE THE OWNERS OF THE UNDERGROUND GASOLINE
      STORAGE TANKS IN QUESTION AND THAT APPELLANTS WERE RESPONSIBLE
      FOR COMPLIANCE WITH THE MISSISSIPPI UNDERGROUND STORAGE TANK
      ACT.

      II. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING
      THAT THE PROPERTY OWNERS' REFUSAL TO CONSENT TO THE ASSIGNMENT
      OF THE LEASE WAS UNREASONABLY WITHHELD.

      III. WHETHER OR NOT THE CHANCELLOR COMMITTED MANIFEST ERROR IN
      AWARDING DAMAGES TO APPELLEE FOR APPELLANTS' REFUSAL TO
      CONSENT TO AN ASSIGNMENT.

      IV. WHETHER OR NOT THE CHANCELLOR COMMITTED MANIFEST ERROR IN
      REFUSING TO AWARD A JUDGMENT ON APPELLANT'S CLAIM FOR TRESPASS
      FOR THE CONTINUED STORAGE OF GASOLINE BY APPELLEE IN THE
      UNDERGROUND GAS STORAGE TANKS.


                                                  ANALYSIS

                                                    I and II

¶9. Rub-A-Dub argues that the Court of Appeals went outside the record and substituted its judgment for
that of the chancellor who was in the best position to evaluate all of the factors. In support of its position,
Rub-A-Dub cites only two cases, Tucker v. Tucker, 453 So.2d 1294 (Miss. 1983), and Yates v. Yates,
284 So.2d 46 (Miss. 1973), wherein the Court stated:

      "... we, as an appellate court, will affirm the decree if the record shows any ground upon which the
      decision may be justified ... We will not arbitrarily substitute our judgment for that of the chancellor
      who is in the best position to evaluate all factors relating to the best interests of the child." 284 So.2d
      at 47."

Tucker, 453 So.2d at 1296 (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss. 1973).

¶10. Rub-A-Dub then goes on to argue that, under the facts of the case, the Court of Appeals erred in its
findings. Specifically, it argues that there was ample evidence in the record to support the finding by the trial
court that Vickery had abandoned the tanks. Rub-A-Dub further argues that this issue was never before the
trial court and has no legal bearing on the case. On this issue, the Court of Appeals found:

      The primary issue presented to the chancellor was whether WPH unreasonably withheld their consent
      to the assignment of the lease. However, as the chancellor determined that underlying the
      "unreasonable" issue is who owns the tanks and who must be held accountable for any liability
      connected with the use of the tanks. The chancellor concluded that WPH owned the tanks. This
      Court, however, is unable to follow the trail of evidence that points to WPH having ownership.

Slip op. at 7-8 (Miss. Ct. App. Sept. 15, 1998).

¶11. After reviewing the evidence in the record, the Court of Appeals went on to hold:

      We are unable to determine ownership of the tanks based on the record before us. We agree with
      WPH that ownership was never an issue before the court. Thus, having not been an issue, the
      question of ownership could not have been properly litigated. Rub-A-Dub, Inc., argues that
      ownership has nothing to do with the reasonableness of WPH's request. We agree that ownership
      alone will not establish whether WPH's request was reasonable. We find it incumbent on Rub-A-
      Dub, Inc., the operators of the gasoline tanks, to show why it is not reasonable for WPH, whether
      they own the tanks or not, to be concerned about a possible leakage. Rub-A-Dub, Inc. did not carry
      that burden. The evidence indicates that the tanks at one time leaked. Whether they are leaking now
      remains to be seen.
      ................

      The record before us raises many questions that inhibit our ability to adequately review this case. We
      find that the chancellor's determination of ownership was not supported by substantial evidence;
      therefore, his decision was arbitrary and capricious. We believe that in the interest of equity the
      unanswered questions we have raised should be addressed before anyone can determine the liability
      for the tanks. As such, we must remand this case to the chancery court for additional proceedings to
      establish ownership of the tanks.

Slip op. at 9-11 (Miss. Ct. App., Sept. 15, 1998).

¶12. The Chancellor concluded that WPH was the owner of the tanks and totally liable, because Vickery,
who installed them, abandoned the tanks in favor of WPH. The Court of Appeals held that the issue of
ownership of the tanks was never properly before the Chancellor and stated that court was "unable to
follow the trail of evidence that points to WPH having ownership." Slip Opinion, at 8. The Court of Appeals
decision in referring to the Vickery lease of the property to the Turners, acknowledges that "we are not
privy to the bill of sale between Vickery and the Turners." That court assumed that the sale excepted the
gasoline tanks, by stating further, "Thus, we are still left with the question of who owns the gas tanks." Slip
Opinion, at 8.

¶13. We acknowledge our common law general rule as set out in Simmons v. Bank of Mississippi, 593
So. 2d 40,42 (Miss. 1992) (citing Stillman v. Hamer 7 How. (8 Miss.) 421 (1843)), which stated that
"whatever is affixed to the land becomes a part of the realty." Id. However, trade fixtures which are
personal property are an exception to this general rule. The Simmons Court, in holding that the title to the
building at issue resided with the lessee, stated that "lessor and lessee may agree among themselves
regarding title to and removal of improvements and may reflect their wishes in formal agreements this Court
will enforce." Id.

¶14. In the case at bar, both the lease by WPH to Vickery, which was later assigned to the Turners, and
the new 1988 lease executed between WPH and the Turners contained the following clause:

      It is understood and agreed between the parties that Lessee, in connection with the business or
      businesses he will conduct on the demised premises, will construct a building thereon and, from time
      to time during the primary and/or renewal terms, will install various items of machinery, equipment,
      appliances and fixtures therein; and it is further agreed that all such machinery, equipment, appliances
      and fixtures (no matter how attached to the realty) shall at all times remain and be the personal
      property of Lessee and Lessee shall have full right to remove same from the demised premises at the
      end of the primary and/or renewal terms.

¶15. As noted by the Court of Appeals, "Clearly, WPH, as lessors, never intended to become the owners
of the gasoline tanks." Slip Opinion at 9. The lease was a ground lease only. WPH never profited, much
less charged for the tanks or sale of gasoline, while notably all the lessees did so profit. That court also
pointed to the bill of sale from the Turners to Rub-A-Dub which clearly acknowledged that WPH did not
own the underground gasoline storage tanks. There was testimony by WPH that at that point in time they
had become concerned about the tanks, thus they insisted on this language. And yet, the Turners conveyed
all personal property to Rub-A-Dub Car Wash, Inc. "except gas storage tanks." More importantly, the
Turners acknowledged in the bill of sale that the tanks had been tested, which said test results revealed
"chemicals around the subject tanks as reflected in the report from Southern Technical Services, Inc." Then
the Turners in paragraph 11, held Rub-A-Dub harmless from any responsibility for environmental or legal
problems or liabilities with the EPA or any other federal or state agency as a result of the present
conditions or past use of said tanks and storage systems. (emphasis added). Finally, the Turners
allowed Rub-A-Dub to continue "the right to use said storage tanks during the balance of the lease period."

¶16. While the question of ownership of the gasoline storage tanks was never specially pled by the parties
and Rub-A-Dub argues it was never properly before the chancellor, nevertheless, the issue of ownership
was discussed and argued by the parties before the chancellor. The chancellor found that ownership was
"underlying" the primary issue of whether WPH's conditions placed on the sale were reasonable. We too
conclude that ownership of the tanks may affect the issue of WPH's reasonableness concerning their actions
toward Rub-A-Dub and its potential buyers for the sale of the property.

¶17. An argument could be made that WPH owned the tanks due to their knowledge that the tanks were
installed by and ultimately abandoned by Vickery. On the other hand, as noted above, WPH always denied
ownership of the tanks in all leases of this property and on one occasion had such language inserted into a
bill of sale.

¶18. The Turners, it could be argued, may have locked themselves into ownership of the tanks in question
in view of the terms of the new 1988 lease from WPH and their Bill of Sale to Rub-A-Dub Car Wash, Inc.
And to further confuse the issue, we have allegations and documentation that Rub-A-Dub Car Wash when
requesting the right to use the tanks, certified to the Mississippi Department of Environmental Quality that
Rub-A-Dub Car Wash owned the tanks in question. The Court of Appeals noted, "We find it curious that
Appellees claimed ownership of the tanks when they were attempting to get permission to use the tanks but
throughout the proceedings in the court below, Rub-A-Dub Car Wash, Inc., maintained that it does not
own the tanks." Slip Opinion, at 10.

¶19. Finally, we note that on February 9, 1998, the Court of Appeals denied a motion by WPH requesting
a remand of the case because of newly discovered evidence concerning an EPA investigation of the
premises in question as to contamination thereon and responsibility for actual contamination. The Court of
Appeals apparently realized its error in denying the motion to remand due to newly discovered evidence, by
acknowledging in its opinion, "After hearing the oral argument from each party and after considerable
review of the record, we now realize further proceedings are necessary." Slip Opinion, at 10.

¶20. We thus agree with the Court of Appeals that this question of ownership and liabilities was not
properly litigated and decided below. While it may appear at first glance that the issue of ownership has
nothing to do with the primary question of the reasonableness of WPH's conditions for the sale, we find that
it has everything to do with that ultimate issue before this Court.

¶21. WPH correctly cites to Miss. Code Ann. § 49-17-411 (Rev. 1990), which provides that "[n]o person
shall own, install, or operate an underground storage tank without complying with the applicable regulations
of the commission." WPH consistently claimed not to be the owner in all leases and extensions thereof and
so argued at trial. If WPH are not the owners of the tanks, they cannot be held liable under the statute for
any spill of chemicals or gasoline, because they clearly never installed or operated the tanks. Whether WPH
are the owners of the tanks must be properly resolved, because being the owner of the tanks is the only
way under the facts in this record that WPH may be held liable, which goes to the very heart of whether
their conditions placed upon the sale of the property were reasonable.
¶22. WPH owns the real property in question. WPH was aware that the tanks had been placed upon the
property by Vickery, Even Vickery, the installer of the tanks has exposure and possible liability under the
statute for the tanks. WPH expressed concerns about leaking tanks to Rub-A-Dub prior to Rub-A-Dub's
proposed sale to Mortimer and Stokes. Upon learning of the proposed sale, WPH conditioned approval of
the sale on an either/or requirement - either Rub-A-Dub agree to satisfy the state and/or federal EPA as to
the underground gas storage tanks, or the new owners must agree to assume the responsibility for existing
conditions and present use of the underground storage gas tanks.

¶23. Vickery had installed the tanks and, according to the Chancellor, abandoned them, thus making them a
part of the realty. WPH might be the owner under this theory. If WPH is in fact the owner of the tanks, then
they can be held liable, therefore their refusal to consent to the lease was unreasonable in that it was an
attempt to absolve themselves completely of liability.

¶24. The new l988 lease from WPH to the Turners clearly passed title to all personal property to them and
specifically stated that WPH did not own the tanks. We find no reference to a Bill of Sale in the record, thus
we do not know if the Turners purchased the tanks or not. We cannot assume anything regarding this issue,
as did the Court of Appeals, due to the absence of such a document in the record. However, the Turners
used the gasoline tanks, sold gasoline during their lease, and acknowledged a spill of chemicals had
occurred prior to their sale to Rub-A-Dub Car Wash.

¶25. The Turner's Bill of Sale to Rub-A-Dub acknowledged that WPH did not own the tanks, and the
Turners conveyed all personal property except the gas tanks. The Turners indemnified Rub-A-Dub as to
liability but, allowed Rub-A-Dub to continue to use the tanks and sell gasoline. Rub-A-Dub thus did not
receive ownership of the tanks, but continued operating the tanks by selling gasoline after notice they had
leaked. Whether they leaked further is unknown. However, Rub-A-Dub claimed that it had proof that no
current problems existed with chemicals around the tanks, but for some unexplained reason it failed to
disclose such evidence during discovery and failed to offer proof at trial other than to merely claim there
were no current problems with the tanks. Rub-A-Dub disavowed ownership of the tanks to its potential
buyers who obviously planned to continue use of the tanks for the sale of gasoline on the premises, because
the potential buyers backed out on the sale when WPH requested certain conditions of Rub-A-Dub and/or
the purchasers. Ownership is thus material to the ultimate question of the issue of reasonableness of WPH's
actions. We agree with the Court of Appeals' result and we therefore reverse and remand on this issue,
albeit for a somewhat different reason.

                                                  III. and IV.

¶26. Rub-A-Dub also argues that the Court of Appeals was incorrect in reversing and rendering the
chancery court's $50,000 damage award. Rub-A-Dub cites no case law in support of its position, but
instead argues that the Court of Appeals erred because there was no evidence of an on-going
environmental problem with the property, or that Rub-A-Dub had done anything to cause the leak.

¶27. On this issue, the Court of Appeals found:

     On the reasonableness of the WPH's refusal to approve the assignment of the lease, we reverse and
     render this verdict regardless of the ultimate resolution of the ownership of the underground gasoline
     storage tanks. WPH, the owners of the property, at some point became aware of the existence of a
     potential environmental hazard on their property in the form of underground gasoline storage tanks
     that were possibly leaking. That hazard had the potential to have a devastating effect on the value of
     the property, and the risk existed without regard to who actually held legal title to the tanks. In that
     situation, it was within the inherent authority of the owners to demand that Rub-A-Dub, Inc., as the
     lessee in possession of the property and the user of the tanks, undertake reasonable steps to remedy
     the situation. The owner of the property cannot be required to stand idly by and suffer the
     continuation of, and possible aggravation of, a condition that damages his property when that
     condition is brought on by the activities of the lessee. That is a classic example of a lessee committing
     waste, for which the law provides the owner a remedy. See Sparkman v. Hardy, 223 Miss. 452,
     459, 78 So. 2d 584, 587 (1955).

     In view of the existence of the owners' right to demand some resolution of this on-going problem of
     the present lessee, it does not seem unreasonable for the owners to take the occasion of the proposed
     lease transfer to bring the matter to a head.

     The lease provision relating to assignments did not preclude the owners from attaching any conditions
     to the approval of a lease assignment. If that were the case, the right to withhold consent would be
     illusory. The plain meaning of the term in the lease is that any such conditions attached to approval of
     a transfer must be reasonable. It has been said, in the context of approving a proposed lease
     assignment, "the term 'reasonable' must refer to considerations of fairness and commercial
     reasonableness." Stern's Gallery of Gifts, Inc. v. Corporate Property Investors, Inc., 337
     S.E.2d 29, 36 (Ga. Ct. App. 1985). It is commercially reasonable that the owners in this case chose
     to withhold consent to an assignment of the lease until the present or proposed tenant formally agreed
     to assume responsibility for the proper operation of the business fixtures on the property, no matter
     who owned them -- an obligation that probably existed independently of a formal affirmation by the
     new tenant, but one which the owner could reasonably require to be explicitly acknowledged in order
     to avoid future misunderstandings. The fact that the proposed new lessee found this condition
     unacceptable does nothing to make it unreasonable. We reverse and render the case in favor of
     Appellants, WPH.

Slip op. at 11-12 (Miss. Ct. App. Sept. 15, 1998).

¶28. In Sparkman v. Hardy, 223 Miss. 452, 459, 78 So. 2d 584, 587 (1955), the Court stated:

     In Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290, 300, 873, this Court
     said that: "Waste is defined to be any substantial injury done to the inheritance, by one having a limited
     estate, during the continuance of his estate." It was also there said that: "* * * it is a universal rule in
     this country that, unless exempted by the terms of the lease from responsibility for waste, a tenant is
     responsible for voluntary waste, whenever committed."

¶29. We find, under the facts of this case, that it would be a valid argument that it not be commercially
unreasonable for WPH, the owners of the property, to take steps to assure that the tenants or proposed
tenants operate and maintain the underground storage tanks so as not to commit waste, something the
tenants would be responsible for absent an agreement to the contrary. Businesses engaged in the installation
and/or ownership and/or operations of gasoline storage tanks and the ultimate sell of gasoline were not as
aware or concerned in May of 1973 with EPA regulations or federal or state statutes concerning these
storage tanks as compared to the late 1980's, when the regulations and governing statutes became much
more demanding as to liability and accountability for owners, installers, or operators of underground storage
tanks. In the late 1980's, publicity concerning the regulations and statutes produced a heightened sense of
awareness regarding underground tanks and potential liability among these three various groups referred to
in the statute.

¶30. The chancellor noted that all parties involved in the case at bar disavowed ownership of the tanks.
WPH simply states that the tanks have never belonged to them. The other parties are all singing the same
verse from the same song, i.e., "these tanks do not belong to us, but rather to someone else, however we
want to continue to use them and sell gasoline." All these other parties have been, currently are, or would
have been operators of the tanks had the sale been finalized. Ownership, installation, or operation of the
tanks are all factors which potentially liable any one or all of these parties, thus affect the commercial
reasonableness standard.

¶31. Rub-A-Dub argues that there was no proof in the record that it was responsible for doing anything to
cause the leakage of the tanks or for that matter that there was an on-going environmental problem. The
record reflects otherwise. There had been a prior confirmed spill or leakage of the tanks. A current EPA
investigation was apparently in process during the time of these proceedings. WPH's refusal was based on
their concern that waste of the estate was being committed by the continued use of the underground storage
tanks which had leaked and was possibly still leaking. Rub-A-Dub offered slim evidence to show that the
tanks were not leaking, and its evidence was extremely slim showing why it was unreasonable for WPH to
be concerned about a possible leakage of the tanks when clearly, if the tanks were leaking, waste of the
estate was being committed. More importantly, Rub-A-Dub Car Wash claimed to have proof to refute that
any problems concerning gasoline leaking currently existed, but wholly failed to reveal such proof during
discovery or at trial.

¶32. The Langdons, owners of Rub-A-Dub Car Wash, Inc., also admitted during their depositions that
WPH's request was reasonable and that they were merely "stupid" in not agreeing to the conditions
proposed by WPH. The Chancellor found that they were "only laymen" and that their testimony had no
effect whatsoever from a legal point of view. We cannot so conclude. The Langdons testified under oath at
deposition. Their depositions were admitted as evidence. They both obviously recognized that WPH's
request was not that unreasonable and they so stated. That testimony is unrefuted in the record. How could
the Chancellor legitimately ignore the importance of their testimony? He should not have under the facts of
this case. This Court has stated, "We as the appellate court will affirm the decree if the record shows any
ground upon which the decision may be justified." Tucker v. Tucker, 453 So.2d 1294,1296 (Miss. 1983)
(quoting Yates v. Yates, 284 So.2d 46, 47 (Miss. 1973). Rub-A-Dub's slim proof in this record is
insufficient to support the chancellor's decision. The chancellor erred.

¶33. The Court of Appeals reversed and remanded for proceedings regarding the ownership of the tanks in
question, but reversed and rendered on damages. The plaintiffs offer some slight evidence as to
unreasonableness of WPH's actions, but it is insufficient to support the chancellor's opinion. Damages for
loss of the sale of the property is the very heart of the issue for the plaintiffs. Why should the plaintiffs
proceed with a new trial to determine only who owns the tanks if they cannot be awarded damages? The
Court of Appeals erred for the reasons stated above.

¶34. We reverse and remand for a new trial on the issue of ownership of the tanks as the same relates to
whether WPH's actions were commercially reasonable and damages for the plaintiff's loss of sale.
Regarding the counterclaim of WPH, since we are reversing and remanding for a new trial on other issues,
we also reverse on the issue of the counterclaim and remand for a new trial on that issue as well.

                                              CONCLUSION

¶35. The issue of ownership of the underground storage tanks was never properly before the chancery
court, and therefore could not have been properly litigated. Ownership of the tanks affects the primary issue
of reasonableness of WPH's actions. The Chancellor ignored certain unrefuted testimony and failed to
consider all the evidence submitted regarding the reasonableness of WPH's actions, and potential liability
under the storage tank law, of all parties who either installed, owned or operated the tanks, thus the lower
court's opinion is manifestly in error. The Court of Appeals was correct to reverse and remand on the issue
of ownership, correct in reversing and remanding on the counterclaims, but erred in reversing and rendering
damages. We affirm as to Issues I and IV, but reverse and remand as to Issues II and III.

¶36. Therefore, we affirm the Court of Appeals judgment in part, reverse the Court of Appeals judgment in
part, and reverse the judgment of the Washington County ChanceryCourt. We also remand this case to the
Washington County Chancery Court for further proceedings consistent with this opinion.

¶37. AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.

PRATHER, C.J., MILLS, WALLER AND COBB, JJ., CONCUR. BANKS, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN AND PITTMAN, P.JJ.
McRAE, J., JOINS IN PART. McRAE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY PITTMAN, P.J., AND BANKS, J.




      BANKS, JUSTICE, DISSENTING:

¶38. I do not agree that it is reasonable for a lessor to withhold consent to an assignment of the lease,
merely to force the lessees to enter a new lease agreement. Accordingly, I respectfully dissent.

¶39. A clause which prevents a lessee from assigning the lease without the consent of the lessor is included
in a lease only to protect the lessor from incurring additional risk which may arise out of the assignment. The
reasonableness of a lessor's failure to consent to an assignment of a lease should be judged in accordance
with a commercial reasonableness standard. Rowley v. City of Mobile, 676 So. 2d 316, 318 (Ala. Civ.
App. 1995); Campbell v. Westdahl, 715 P.2d 288, 292 (Ariz. Ct. App. 1985); First American Bank
of Nashville, NA. v. Woods, 781 S.W.2d 588, 590 (Tenn. Ct. App. 1989). Commercially reasonable
factors to be considered by a lessor in determining whether to consent to the assignment of a lease, may
include:

      ... the financial responsibility of the proposed assignee or subtenant, whether the new tenant's use will
      require alteration of the premises, the legality of the proposed use, the nature of the occupancy, and
      the compatibility of the tenant's use with the uses of the other tenants in the same shopping center or
      office building.
Rowley, 676 So. 2d at 319 (quoting D. Thomas, 12 Thompson on Real Property § 97.06(c)(22)(ii) at
108 (1994)). It is reasonable for a lessor to withhold consent where there is a genuine question as to
whether the assignment would compromise the lessor's current status under the lease. Campbell, 715 P.2d
at 292-93; Worcester-Tatnuck Square CVS, Inc. v. Kaplan, 601 N.E.2d 485, 489 (Mass. App. Ct.
1992).

¶40. However, public policy is not served by allowing the lessor to withhold consent as a method of
coercing the lessees to enter into an entirely new lease with increased financial benefit to the lessor.
Chrysler Capital Corp. v. Lavender, 934 F.2d 290, 294 (11h Cir. 1991); Campbell, 715 P.2d at 292-
93. It is unreasonable for a lessor to withhold consent to the assignment of a lease, where the lessor's
refusal to consent is motivated by a desire to obtain an increased economic benefit. Economy Rentals,
Inc. v. Garcia, 819 P.2d 1306, 1315-16 (N.M. 1991). See also 1010 Potomac Assocs. v. Grocery
Mfrs. of America, Inc., 485 A.2d 199, 209 (D.C. 1984) ("... a landlord may not for economic motives
reasonably refuse consent to a sublease that fully protects the landlord's bargain under the prime lease.");
Jung v. Zemel, 545 N.E.2d 242, 247 (Ill. App. Ct. 1989) (lessor had no commercially reasonable basis
for refusing to consent to assignment where there was no change in lessor's financial risk and lessor merely
wanted to increase profit under the lease);; Worcester-Tatnuck Square CVS, Inc., 601 N.E.2d at 489;
First American Bank, 781 S.W.2d at 591.

¶41. Here, WPH's objection was not to an aspect of the assignment which would put it in a less
advantageous position than if there were no assignment. Instead, WPH is seeking to have Rub-a-Dub enter
into an entirely new lease; one in which Rub-a-Dub would assume liability which it has not assumed under
the current lease. It is unreasonable for WPH to withhold consent simply because it is unhappy with the
agreement previously negotiated. Campbell, 715 P.2d at 294.

¶42. I would affirm the judgment of the Chancellor that it was unreasonable for WPH to withhold consent
to the assignment.

SULLIVAN AND PITTMAN, P.JJ., JOIN THIS OPINION. McRAE, J., JOINS IN PART.




      McRAE, JUSTICE, DISSENTING:

¶43. Given our limited standard of review, I see no reason to reverse the Chancellor's ruling in this case that
the withholding of consent was unreasonable. Therefore, I dissent.

¶44. The Plaintiffs in this case, Rub-A-Dub Car Wash, Inc. and Kent and Helen Langdon (Rub-A-Dub),
owned a car wash. The land on which the car wash sat was owned by Harold W. Wright, Hugh G. Payne,
and Curry Holland (WPH). Rub-A-Dub leased the land from WPH. The lease contained a provision that
allowed Rub-A-Dub to assign the lease only with the written permission of WPH. Permission, however,
could not be unreasonably withheld by WPH.

¶45. Rub-A-Dub entered into a contract to sell the car wash to a third party. The sale fell through when
WPH refused to consent to an assignment of the land lease unless certain conditions were met. WPH were
concerned with potential liability for any possible leaking of some underground gasoline storage tanks and
would allow an assignment of the lease only if Rub-A-Dub or the buyers would assume all liability for
damages and/or clean-up necessitated by the condition of the tanks. The tanks had been added twenty
years previously, not by Rub-A-Dub, but by a prior tenant who had placed them there without the
landowners' permission but with the landowners' knowledge.

¶46. Not surprisingly, neither Rub-A-Dub nor the purchaser would agree to assume liability for the tanks
and the sale fell through. Rub-A-Dub then sued WPH for unreasonably withholding consent to the
assignment of the lease. WPH counterclaimed seeking damages for any clean up costs associated with the
tanks.

¶47. The Chancellor found that WPH owned the tanks and and was liable for any damages caused by them
since WPH enjoyed the benefit of ownership from 1973 until 1994. The Chancellor held that the condition
placed by WPH on the assignment was unreasonable and awarded $50,000 in damages to Rub-A-Dub.

¶48. WPH appealed. The Mississippi Court of Appeals reversed, rendered in part and remanded in part
holding that WPH had the right to require Rub-A-Dub to clean up the tanks as a condition to the lease
assignment. The Court of Appeals found the condition was commercially reasonable.

¶49. Rub-A-Dub filed a petition for writ of certiorari, arguing that the Court of Appeals (1) improperly
substituted its judgment for that of the Chancellor when it found the owners' condition on the assignment
was reasonable and (2) went outside the record when it found that Rub-A-Dub aggravated the leakage
problem.

¶50. A chancellor's decision is reviewed on appeal for abuse of discretion. Church of God of
Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204 (Miss.1998).
That is to say that a chancellor's findings of fact must be left untouched unless manifestly wrong or clearly
erroneous. Snow Lake Shores Property Owners Corp. v. Smith, 610 So.2d 357, 360 (Miss.1992).
We must "affirm a chancellor on a question of fact unless upon review of the record we be left with the firm
and definite view that a mistake has been made." Snow Lake, 610 So.2d at 360 (quoting Rice
Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264 (Miss.1987)).

¶51. The Chancellor below made the following findings, all of which are supported by substantial evidence:
(1) the tanks were added twenty years ago by a prior tenant without WPH's consent but with WPH's
knowledge, (2) prior leases provided that the leases could not be assigned without the consent of WPH
which could not be unreasonably withheld, (3) WPH agreed to two prior assignments of leases including the
assignment in 1990 to Rub-A-Dub at which time the tanks were leaking, (4) the tanks were not included in
the sale of the car wash to Rub-A-Dub, although Rub-A-Dub used the tanks with the knowledge of WPH
and (5) WPH conditioned their consent to the lease assignment on the agreement of Rub-A-Dub or the
purchaser to assume liability for the leakage or pay for clean up.

¶52. Based on these facts, the Chancellor held that the condition imposed on the assignment was
unreasonable(1) and, thus, that Rub-A-Dub was entitled to damages for the lost sale.

¶53. The Court of Appeals accepted the Chancellor's findings as facts but nonetheless reversed holding that
the condition imposed by WPH was a reasonable one inasmuch as WPH were aware of a potential
environmental hazard and had a right to take steps to require the tenant to correct the problem. WPH, the
Court wrote, were not required to "stand idly by and suffer the continuation of, and possible aggravation of,
a condition that damages his property when that condition is brought on by the activities of the lessee."
¶54. The standard of review, however, demands that the chancellor's findings be upheld unless clearly
erroneous. The decision of whether the withholding of consent to an assignment of a lease is reasonable is a
question of fact. See, e.g., Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d 1035, 1037-38 (Ala.
1977) (holding that there was a fact issue precluding summary judgment as to whether lessor acted
reasonably in rejecting prospective sublessees); Campbell v Westdahl, 715 P.2d 288, 292 (Ariz.Ct.App.
1985) (sufficient evidence existed to support jury's finding that consent was withheld unreasonably);
Brigham Young Univ. v. Seman, 672 P.2d 15, 18 (Mont. 1983) (finding that landlord's withholding of
consent to proposed sublease was unreasonable was ultimate fact supported by evidence in record and
was not clearly erroneous and, thus, must be upheld on appeal). Thus, the chancellor's determination in this
case that the withholding of consent was unreasonable must be upheld on appeal unless that finding is
manifestly in error.(2)

¶55. This Court's majority opinion, as well as that of the Court of Appeals, makes much of the fact that the
Langdons (Rub-A-Dub) themselves testified that WPH's request that Rub-A-Dub or its purchaser assume
liability for the tanks was not unreasonable. I agree with the Chancellor that the Langdons' testimony is not
dispositive of the issue. First of all, the standard is one of commercial reasonableness. As Charles Langdon
testified, it was certainly not unreasonable for someone "not to want to own those tanks or not to be
responsible for them." This is not the same as opining that the withholding of consent was commercially
reasonable. If the Langdons had truly felt that WPH's refusal to consent to the assignment was reasonable,
they would not have filed their suit. Secondly, as the Chancellor points out, the Langdons were not
sophisticated purveyors of real estate. A full reading of the Langdons' testimony demonstrates that they
were willing to assume liability for any damage that may have occurred on their watch, just not for anything
that occurred before or after.(3) WPH's condition for consenting to the assignment would have made Rub-
A-Dub (or its purchaser) liable for leaks not necessarily of their making. The Langdons' testimony is clear
that they did not think this was fair.

¶56. Because there is substantial evidence in the record to uphold the decision of the Chancellor, this Court
is bound by its standard of review to affirm. The Chancellor did not find that Rub-A-Dub either created or
aggravated the leakage. Thus, WPH's demand that Rub-A-Dub assume sole responsibility for clean up
notwithstanding the fact that there was no proof that Rub-A-Dub was solely responsible for the leakage
was unreasonable. By connecting the demand to clean up the property to the right of assignment, WPH
forced Rub-A-Dub to either assume sole responsibility for an environmental problem not clearly of its
making or lose the sale of its business. In essence, WPH wanted to deprive Rub-A-Dub of its day in court
to prove that someone other than Rub-A-Dub should bear all or a part of the clean-up costs.

¶57. Indeed, the issue surrounding clean up of the tanks was a red herring inserted by WPH. WPH owned
the tanks. WPH had consented to previous assignments of the lease, including that to Rub-A-Dub, without
requiring the tenant to assume responsibility for cleanup of the tanks. These factors fully support the
Chancellor's holding that the withholding of consent over the issue of the tanks was commercially
unreasonable.

¶58. The Court of Appeals in this case has substituted its judgment for that of the Chancellor, and this
Court compounds that error by substituting our judgment for that of both the Court of Appeals and the
Chancellor. As I can find no justification for reversing the Chancellor's decision in this case, I dissent.

PITTMAN, P.J., AND BANKS, J., JOIN THIS OPINION.
1. WPH "should not, in equity, be allowed to use the request for their consent to an assignment as an
opportunity to re-write the lease and thereby abdicate their responsibilities with regard to liability," the
Chancellor wrote.

2. Furthermore, a restriction against assignments in that it acts as a restraint on alienation is not favored by
the law and should be strictly construed against the lessor. See Annot., Agreement by Lessee With Third
Person Permitting Use of the Property As Violation of Covenant In Lease Against Assignment or
Subletting, 89 A.L.R. 1325 (1934) ; Buckeye Dev. Co. v. Feingold, 626 S.W.2d 456, 458
(Mo.Ct.App. 1981); Borgen v. Wiglesworth, 375 P.2d 601, 604 (Kan. 1962).

3. As Helen Langdon points out, the EPA requires constant monitoring of the underground tanks. A service
station cannot be operated unless it is in compliance with EPA guidelines. Because the tanks were
monitored, the Langdons appear to be confident that no leaks occurred while they were in possession.
