Maynard, J., concurring:
I fully concur in the majority opinion. As the author of the Court's opinion in
Frazier & Oxley I, though, I feel it incumbent on me to briefly address the contentions of my
dissenting colleague and explain why, in light of the posture of Frazier & Oxley I, I do not
find them to be compelling.
In Frazier & Oxley I, St. James originally brought only one claim against
Frazier & Oxley, a claim that the ending of the prime lease agreement between City National
Bank and St. James terminated Frazier & Oxley's sublease. Even though St. James knew as
early as December 12, 2001, about the sublease, the company did not file a motion to amend
its complaint at that time; rather, it chose to forego further discovery on the potential
recording act claim and instead file a motion for partial summary judgment on the only claim
that it had brought_the termination claim. Even after Frazier & Oxley sought a writ of
prohibition before this Court, St. James did not indicate to this Court that it had another
potential basis of recovery against Frazier & Oxley. It was only after this Court ruled against
St. James and issued the writ of prohibition that St. James returned to circuit court and sought
to add the additional recording act claim to its complaint.
It is important to realize that when this case initially came before us, St. James
emphasized the need to rapidly resolve it
(See footnote 1)
based on the fact that it was receiving only $250.00
a month in rent from Frazier & Oxley and St. James believed the mezzanine was actually
worth anywhere from $2,000 to $4,000 per month in rent. In light of this, even though we
issued a prohibition against Judge Cummings on the grant of partial summary judgment, we
acceded to St. James's desire to rapidly resolve the case, returning the case to circuit court
for the limited purpose of “a factual determination of whether a surrender of the prime lease
occurred.” It was only then, after we returned the case to the circuit court for a determination
of the single claim that St. James chose to pursue up to that point, that it sought to amend its
complaint to add another count.
(See footnote 2)
In light of St. James's expressed desire in Frazier & Oxley I to secure a
determination of its rights as rapidly as possible and, in so doing, its failure to express to us
therein that it was aware that another possible theory was available, our decision in Frazier
& Oxley I was clearly a limited remand designed to grant each party as much of their
requested relief as possible while still protecting the rights of all parties involved. Thus, no
one should take the majority opinion in Frazier & Oxley II out of the factual and procedural
context of Frazier & Oxley I.
With a full understanding of the background to Frazier & Oxley I, I think it is apparent that the dissent's dire predictions and characterizations of the effects of Frazier & Oxley II are not well founded. With those clarifications, I fully concur in the majority opinion.