#26755-rev & rem-SLZ

2014 S.D. 23

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
TRI-CITY ASSOCIATES, LP,                    Plaintiff and Appellant,

      v.

BELMONT, INC., a South Dakota
corporation and JOSEPH Z. ERBA,             Defendants and Appellees.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                   THE HONORABLE ROBERT A. MANDEL
                               Judge

                                   ****

MARK F. MARSHALL of
Bangs, McCullen, Butler,
 Foye & Simmons, LLP
Rapid City, South Dakota                    Attorneys for plaintiff
                                            and appellant.


STAN H. ANKER
JORDAN D. BORDEWYK of
Anker Law Group, PC
Rapid City, South Dakota                    Attorneys for defendants
                                            and appellees.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON FEBRUARY 18, 2014

                                            OPINION FILED 04/16/14
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ZINTER, Justice

[¶1.]        Belmont, Inc. leased unfinished commercial real-estate space from Tri-

City Associates, L.P. The parties later filed claims against each other for breach of

the lease. The circuit court entered a judgment in favor of Belmont on all claims.

The court reasoned that although both parties failed to fulfill certain obligations

under the lease, Tri-City materially breached the lease, thus excusing Belmont from

performance. Tri-City appeals contending that its failure to complete its initial

construction obligations and its failure to deliver the space in “broom clean”

condition were excused by the lease’s “as is” clause. Tri-City also contends that it

was excused by Belmont’s failure to give notice of breach and an opportunity to

cure. We reverse and remand for the circuit court to enter findings of fact and

conclusions of law on the effect of Belmont’s failure to give notice of breach and an

opportunity to cure.

                            Facts and Procedural History

[¶2.]        Tri-City was the owner and developer of a shopping center in Rapid

City. Belmont was formed to operate a meat and produce business in Rapid City.

In May 2006, Belmont and Tri-City entered into a commercial real-estate lease for a

space in the shopping center that Tri-City was developing. The lease was to start

on August 1, 2006.

[¶3.]        A “work letter” attached to the lease allocated some of the initial

construction work between Tri-City and Belmont. That work was necessary to

ready the premises for occupancy and use in Belmont’s meat and produce business.

The work letter also required Tri-City to provide the premises in “broom clean”


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condition. The work letter further recited that Belmont had inspected the premises

and was taking them in “as is” condition. 1 Nevertheless, there is no dispute that

Tri-City did not complete its allocated portion of the initial construction, nor did it

deliver the premises in broom clean condition by August 1, 2006.

[¶4.]         Even though the August 1 start date passed without Tri-City fulfilling

its obligations, Belmont worked with Tri-City, attempting to complete construction

and ready the premises for occupancy and use. However, the parties encountered

numerous problems and delays that rendered their attempts unsuccessful. In

December 2006, Tri-City proposed moving the start date of the lease from August 1,

2006, to January 15, 2007. Belmont did not sign the proposed modification

agreement.



1.      The work letter provided, in relevant part:

              LANDLORD’S WORK which Landlord is obligated to initially
              construct and pay for, shall consist of the following work: [listing
              construction obligations]. Except for Landlord’s obligation to
              put the Premises in a “broom clean” condition, Tenant agrees
              that Landlord has no other construction obligations, other than
              the aforementioned, with respect to Tenant’s initial occupancy of
              the Premises and that Tenant has inspected the Premises and is
              taking the Premises in its “AS IS” condition, with no
              representations or warranties of any kind with respect to the
              condition of the Premises and its building systems or its
              suitability of the Premises for Tenant’s business.

              TENANT’S WORK, for which Tenant is obligated to construct
              and pay for, shall consist of the items of work described below,
              and all other work necessary to complete the improvements in
              the Premises in accordance with the Approval Tenant Plans,
              except any items of work expressly included in Landlord’s Work.
              Tenant to invest a minimum of $50,000.00 in
              renovation/fixturing costs and provide evidence of same to
              Landlord.

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[¶5.]         In March 2007, Tri-City served Belmont with a notice to quit and

vacate. In April 2007, Tri-City sued to evict Belmont and recover damages for

unpaid rent and other Belmont obligations under the lease. In July 2007, based on

a stipulation between the parties, the circuit court awarded possession of the

premises to Tri-City.

[¶6.]         In October 2007, Belmont filed an amended answer and added a

counterclaim. Belmont denied liability for damages and claimed that Tri-City

materially breached the lease by failing to fulfill its initial construction and broom

clean obligations. Tri-City responded that even if it failed to perform those

obligations, Belmont was liable for rent, and Belmont’s counterclaim was barred

because Belmont accepted the property as is. Tri-City also contended that Belmont

failed to provide Tri-City with written notice of its alleged breach and an

opportunity to cure as required by another provision in the lease. 2




2.      The notice-and-cure provision provided, in relevant part:

              Landlord’s Default. Landlord shall be in default under this
              Lease upon . . . (b) the failure of Landlord to observe, keep or
              perform any of the other terms, covenants, agreements or
              conditions contained in this Lease on the part of Landlord to be
              observed or performed and such failure continues for a period of
              thirty (30) days after written notice by Tenant to Landlord or, if
              such failure is not reasonably susceptible to cure within thirty
              (30) days, then within a reasonable period of time so long as
              Landlord shall have commenced to cure such failure within such
              thirty (30) day period and shall thereafter diligently pursue such
              cure to completion. Tenant may not exercise any remedies
              available to it under this Lease, at law or in equity until
              Landlord has been afforded the cure periods described in this
              Paragraph 48 . . . .

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[¶7.]        After a court trial, the circuit court found that Tri-City failed to deliver

the premises in broom clean condition and failed to complete its allocated portion of

the initial construction. The court concluded that Tri-City’s failures were material

breaches that excused Belmont from liability and rendered Tri-City liable on

Belmont’s counterclaim. The court made no findings of fact or conclusions of law on

Tri-City’s claim that Belmont’s failure to follow the lease’s notice-and-cure provision

barred Belmont’s defense and counterclaim.

[¶8.]        Tri-City appeals, contending that Belmont’s defense and counterclaim

were barred as a matter of law by: (1) the lease provision in which Belmont accepted

the premises as is, and (2) Belmont’s failure to give Tri-City notice of its alleged

breach and an opportunity to cure.

                                        Decision

[¶9.]        The questions on appeal involve the interpretation of the lease. A

lease is a contract, so contract principles govern its interpretation. See Icehouse,

Inc. v. Geissler, 2001 S.D. 134, ¶ 21, 636 N.W.2d 459, 465 (“As a lease is a contract

we will follow the law of contract in regard to breach.” (citation omitted)). Contract

interpretation is a question of law that we review de novo. Poeppel v. Lester, 2013

S.D. 17, ¶ 16, 827 N.W.2d 580, 584 (citation omitted).

[¶10.]       Tri-City first contends that Belmont’s execution of the lease containing

the as is clause barred a judgment in favor of Belmont as a matter of law. We

disagree.

[¶11.]       The goal of contract interpretation is to determine the parties’ intent.

See id. To determine intent, we look “to the language that the parties used in the


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contract[.]” Id. (quoting Detmers v. Costner, 2012 S.D. 35, ¶ 20, 814 N.W.2d 146,

151). We do not, however, interpret “particular words and phrases . . . in isolation.”

Casey Ranch Ltd. P’ship v. Casey, 2009 S.D. 88, ¶ 11, 773 N.W.2d 816, 821 (quoting

In re Dissolution of Midnight Star Enters., 2006 S.D. 98, ¶ 12, 724 N.W.2d 334,

337). Nor do we interpret language “in a manner that renders a portion of [the

contract] meaningless.” Estate of Fisher v. Fisher, 2002 S.D. 62, ¶ 14, 645 N.W.2d

841, 846 (citation omitted). Instead, we interpret the contract to give “a reasonable

and effective meaning to all [its] terms[.]” Casey Ranch, 2009 S.D. 88, ¶ 11, 773

N.W.2d at 821 (quoting Midnight Star, 2006 S.D. 98, ¶ 12, 724 N.W.2d at 337).

[¶12.]       In this case, the lease obligated Tri-City to deliver the premises to

Belmont on the start date in broom clean condition, with Tri-City’s allocated portion

of the initial construction completed. Tri-City does not dispute that it failed to

fulfill those obligations. Instead, Tri-City contends that it was essentially absolved

of responsibility to satisfy those obligations because Belmont accepted the premises

in as is condition when it signed the lease in May 2006. Tri-City’s position does not

give a reasonable and effective meaning to all terms of the lease.

[¶13.]       The as is clause appears in the same paragraph as the clauses

requiring Tri-City to provide certain construction and to present the premises in

broom clean condition. Yet Tri-City’s interpretation would read the as is clause to

abrogate its construction and broom clean obligations, rendering the broom clean

and construction clauses meaningless. Tri-City’s interpretation also fails to

recognize that the parties signed the lease in May 2006, but use and occupancy of

the premises were not contemplated until August 1, 2006. Therefore, although the


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lease provided that Belmont was taking the premises in as is condition on the date

the lease was executed, it expressly contemplated that Tri-City would provide

initial construction and present the premises in broom clean condition after the

lease was executed. Tri-City’s interpretation would abrogate its future obligations

by signing the lease, an absurd result that could not have been intended.

[¶14.]       A harmonious reading of all provisions reflects that the as is clause did

not abrogate Tri-City’s post-execution obligations to perform initial construction

and to deliver the premises in broom clean condition. Indeed, the work letter

specifically provided that Belmont was taking the premises as is “[e]xcept for” Tri-

City’s obligation to put the premises in broom clean condition and “other than [Tri-

City’s] aforementioned” allocated construction obligations. We conclude that the as

is clause did not bar the judgment in favor of Belmont as a matter of law.

[¶15.]       Tri-City alternatively argues that Belmont’s defense and counterclaim

were barred by the notice-and-cure provision. Tri-City emphasizes that this

provision required Belmont to give Tri-City written notice and time to cure any

default before Belmont could “exercise any remedies available to it[.]” Tri-City

contends that because Belmont did not comply with this provision, a judgment in

Belmont’s favor was barred as a matter of law.

[¶16.]       Belmont responds first by arguing that our standard of review is

limited to determining whether the circuit court’s findings of fact support its

conclusions of law—Belmont claims they do. Belmont contends that limited review

is mandated under Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 S.D. 82,

700 N.W.2d 729, because Tri-City did not submit both “its own findings of fact and


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conclusions of law and object to the trial court’s findings of fact and conclusions of

law.” Belmont misreads Canyon Lake.

[¶17.]        In Canyon Lake, “neither party specifically objected to [the circuit

court’s] findings of fact or conclusions of law, nor did they submit their own findings

of fact or conclusions of law.” Id. ¶ 10. We held that the failure to either object to or

propose findings or conclusions limited our “review to the question of whether the

findings support[ed] the conclusions of law and judgment.” Id. ¶ 11 (quoting

Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894, 895 (S.D. 1994)). We also cited

Selway Homeowners Association v. Cummings, for a similar holding, explaining

that because “the appellant failed to either object to findings of fact or conclusions of

law proposed by the appellee, or propose findings of fact and conclusions of law of

their own,” our review was limited to determining “whether the findings supported

the conclusions of law and judgment[.]” Canyon Lake, 2005 S.D. 82, ¶ 11, 700

N.W.2d at 733 (emphasis added) (citing Selway, 2003 S.D. 11, ¶ 14, 657 N.W.2d

307, 312).

[¶18.]        Thus, under our cases, there are two methods to preserve our ordinary

standard of review. Review is not limited unless the appealing party failed to object

to and failed to propose findings of fact and conclusions of law. Either alternative

satisfies the purpose of the rule, which is to bring the issue to the attention of the

circuit court for a ruling.

[¶19.]        In this case, although Tri-City did not object to the circuit court’s

findings of fact and conclusions of law, Tri-City did propose findings and conclusions

on the notice-and-cure issue. Because Tri-City proposed findings of fact and


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conclusions of law on this issue, our review is not limited. We review findings of

fact for clear error and conclusions of law de novo. See Eagle Ridge Estates

Homeowners Ass’n v. Anderson, 2013 S.D. 21, ¶ 12, 827 N.W.2d 859, 864 (citing

SDCL 15-6-52(a)); Detmers, 2012 S.D. 35, ¶ 9, 814 N.W.2d at 149.

[¶20.]       Belmont next argues that Tri-City cannot rely on the notice-and-cure

provision for two reasons. First, Belmont contends that by bringing this suit, Tri-

City demonstrated that it had no intent to perform its obligations and cure its

default. Second, Belmont contends that even if Tri-City can rely on the notice-and-

cure provision, Belmont’s motion to amend its answer and assert a counterclaim

provided the required notice of Tri-City’s defaults. Belmont points out that after it

moved to add the counterclaim, which identified Tri-City’s defaults, Tri-City had

sufficient time to cure but did not.

[¶21.]       Tri-City requested that the circuit court rule on the notice-and-cure

issue. Tri-City proposed findings of fact and conclusions of law to the effect that

Belmont’s claims were barred by the notice-and-cure provision. Although this issue

was presented to the circuit court, the court did not address the effect of the notice-

and-cure provision on Belmont’s counterclaim.

[¶22.]       The circuit court’s failure to address the notice-and-cure issue is

problematic because some courts have concluded that the failure to abide by a

notice-and-cure provision precludes judicial relief. For example, in Kinstler v. RTB

South Greeley, LTD. LLC, the Wyoming Supreme Court affirmed a trial court’s

rejection of a tenant’s claim that he was excused from paying rent because his

landlord materially breached a lease. 160 P.3d 1125, 1126 (Wyo. 2007). The court


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noted that the tenant correctly argued “that, under some circumstances, one party’s

material breach of an agreement may excuse the other party’s performance under

that agreement.” Id. at 1127 (citation omitted). But the court explained that

“[w]hen a party fails to provide notice of a material breach, if required by the terms

of the lease, reliance on that breach to excuse contractual performance is improper.”

Id. at 1128 (citation omitted); see also Huttenbauer Land Co. v. Harley Riley, Ltd.,

No. C-110842, 2012 WL 4760871, at *2 (Ohio Ct. App. Oct. 5, 2012) (unreported

opinion) (“Because the lease provides that [the landlord] is entitled to notice and an

opportunity to cure an alleged default, and because such notice and opportunity

were not provided . . ., [the landlord’s] default did not result in a breach of the lease

and its actions could not have served as a basis to excuse [the tenant’s] performance

under the lease.”); Hoover v. Wukasch, 274 S.W.2d 458, 460 (Tex. Civ. App. 1955)

(holding that a lease’s notice-and-cure provision, requiring that the tenant give

written notice to the landlord about needed roof repairs, precluded the tenant from

withholding rent because the tenant had failed to give required notice).

[¶23.]       Other courts, however, have concluded that a failure to strictly comply

with a notice-and-cure provision does not necessarily preclude recovery. In an

unreported opinion, the Ohio Court of Appeals, citing a number of reported

opinions, explained why such a provision may not preclude recovery:

             “Although courts generally should give effect to the plain
             meaning of the parties’ unambiguously expressed intentions, in
             some circumstances, courts will not strictly enforce contractual
             language requiring notice in writing.” [Gollihue v. Nat’l City
             Bank, 969 N.E.2d 1233, 1238 (Ohio Ct. App. 2011).] In those
             cases, a failure to provide notice according to the terms of the
             contract may not preclude recovery on the contract where the
             party has received actual notice. [Id. at 1238-39; Adair v.

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             Landis Props., No. 08AP-139, 2008 WL 4174130, at *3-*4 (Ohio
             Ct. App. Sept. 11, 2008); Daniel E. Terreri & Sons, Inc. v.
             Mahoning Cnty. Bd. of Comm’rs, 786 N.E.2d 921, 932 (Ohio Ct.
             App. 2003).] “The purpose of requiring written notice is not to
             be hypertechnical but, instead, to create certainty.” [McGowan
             v. DM Grp. IX, 455 N.E.2d 1052, 1055 (Ohio Ct. App. 1982).]

Marion Forum, L.L.C. v. Lynick Enters., Inc., No. 9-12-13, 2012 WL 6571388, at *4-

*5 (Ohio Ct. App. Dec. 17, 2012) (finding that the record demonstrated that the

landlord had received actual notice of maintenance issues, even though the tenant

had failed to strictly comply with a notice-and-cure provision).

[¶24.]       Because of the conflicting authority and the circuit court’s failure to

address the notice-and-cure provision, we decline to review this issue. Further

proceedings are necessary to answer unresolved questions such as substantial

compliance, actual notice, and materiality. We reverse and remand for the entry of

findings of fact and conclusions of law on the effect of Belmont’s failure to give

notice of breach and an opportunity to cure.

[¶25.]       Both parties have moved for appellate attorney’s fees, and each has

filed accompanying itemized statements of expenses. “[A]ttorney fees may only be

awarded by contract or when explicitly authorized by statute.” In re Estate of

O’Keefe, 1998 S.D. 92, ¶ 17, 583 N.W.2d 138, 142 (quoting Schuldies v. Millar, 1996

S.D. 120, ¶ 37, 555 N.W.2d 90, 100). In this case, the lease governs attorney fees,

and it provides that fees are recoverable by “the prevailing party.” However, at this

point, neither party has prevailed. We decline to award attorney’s fees to either

party.

[¶26.]       Reversed and remanded for further proceedings on the notice-and-cure

provision of the lease.

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[¶27.]      GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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