                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                Assigned on Briefs February 8, 2008

                              TOM SALTER v. DARYL SANDERS

                        Appeal from the Circuit Court for Cheatham County
                                No. 5694   Robert E. Burch, Judge



                       No. M2006-02427-COA-R3-CV - Filed March 24, 2008


The trial court held that lessor was entitled to full rent for summer months although the air
conditioning was inoperable. The trial court reasoned that since lessor terminated the month to
month tenancy months earlier due to the fact that lessor did not intend to repair the HVAC system,
then lessor should not be penalized and rent is owed for those months. We affirm.

              Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                            Affirmed

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Daryl Sanders, Nashville, Tennessee, Pro Se.

No brief filed by appellee.

                                       MEMORANDUM OPINION1

       In July of 2005, Tom Salter sued Daryl Sanders in General Sessions Court to recover for non-
payment of rent totaling $4,375. The General Sessions Court awarded Mr. Salter $4,610.61 and
dismissed Mr. Sanders’ countercomplaint. Mr. Sanders appealed to the Circuit Court.

        A hearing was held by the trial court on February 6, 2006. No stenographic report or
verbatim recording of the hearing was made. Accordingly, we must rely on a Statement of the
Evidence prepared by the trial court and filed pursuant to Tenn. R. App. P. 24(c) for our recitation
of the facts.



         1
           This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a
case is decided by memorandum opinion it shall be designated “MEM ORANDUM OPINION,” shall not be published,
and shall not be cited or relied on for any reason in any unrelated case.
         Beginning in 1994, Mr. Sanders rented a house from Mr. Salter in Ashland City. The parties
initially signed a one-year lease, and Mr. Sanders paid a $752 security and cleaning deposit. When
the one-year lease expired, Mr. Sanders held over, initially paying rent of $725 per month which was
later raised to $750 per month. This arrangement apparently suited both parties for several years.

        In 2004, Mr. Sanders informed Mr. Salter that there were problems with the house, namely
that the heating and cooling system (“HVAC”) was not working properly. Mr. Salter inspected the
HVAC and determined that the air conditioning was not working at all and while the heat functioned
adequately, it had diminished capacity.

         Mr. Salter testified that on December 31, 2004, he told Mr. Sanders that he was not going
to fix the HVAC so Mr. Sanders must leave the house. Mr. Salter said he told Mr. Sanders that he
could remain in the house through January of 2005 rent free.

        Although Mr. Salter testified he had asked Mr. Sanders to vacate the premises, Mr. Sanders
continued to live in the house past January of 2005 and paid no further rent. In May of 2005, Mr.
Salter again told Mr. Sanders to leave. When Mr. Sanders refused to leave, Mr. Salter then filed this
action to recover rent for 2005 and remove Mr. Sanders from the premises.

       Mr. Sanders testified that the HVAC system completely failed to work after December 29,
2004, and that Mr. Salter did not tell him to vacate the premises. According to Mr. Sanders, from
January thru August of 2005 when he left, Mr. Salter told him he was not obligated to pay rent.
According to Mr. Sanders, Mr. Salter told him he could stay until he could find another suitable
house to rent.

        Mr. Sanders agreed that it took longer to find another house than either of the parties
anticipated since Mr. Sanders had a collection of dogs and cats.2 According to the Statement of
Evidence, Mr. Sanders agreed at the hearing that he should pay rent after May 31, 2005.

        The trial court made the following findings:

        1. Notice was given to Defendant to quit the premises prior to January of 2005.

        2. There was insufficient heat in the house during the winter of 2005.

        3. There was no air conditioning in the house at all in 2005.

        4. Rent was forgiven in January 2005.

        5. No rent was owed in February and March 2005 because there was no heat and the house
        was not habitable.


        2
          Mr. Salter testified that the HVAC’s problems apparently stemmed from damage to the duct work by Mr.
Sanders’ dogs.

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         6. Defendant owes rent for the months of April, May, June, July and August 2005 at the rate
         of seven hundred fifty ($750) dollars per month. The lack of air conditioning does not
         diminish the amount of rent to be paid since Defendant was occupying the house against the
         wishes of the landlord and the landlord was under no obligation to make the house habitable
         for a tenant that he didn’t want there.

         7. The seven hundred twenty-five ($725) dollar deposit shall be credited against the rent
         owed. Only normal wear and tear has been shown by the proof.

         8. Judgment is awarded to the plaintiff against the defendant in the amount of three thousand
         twenty-five ($3025) dollars.

         9. The counterclaim filed by Defendant is found to be without basis in law or in fact. The
         Court, therefore, finds for the Counter Defendant and dismisses the same.

         10. Costs of the action are taxed to the defendant.

       Mr. Sanders appeals the trial court’s assessment of rent for April through August of 2005.
Mr. Sanders does not challenge dismissal of his counterclaim for lost income and emotional distress
seeking $10,000. The landlord, Mr. Salter, made no appearance on appeal.

                                          I. STANDARD OF REVIEW

        We review this case de novo on the record with a presumption of correctness of the trial
court’s findings of fact, unless the preponderance of the evidence is otherwise. Tenn. R. App. P.
13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). No presumption of correctness attaches
to the trial court’s decisions regarding questions of law. Wilson v. Wilson, 984 S.W.2d 898, 900
(Tenn. 1998), cert. denied, Oakley v. Wilson, 528 U.S. 822, (1999).

                                                  II. ANALYSIS

        Proceeding pro se, Mr. Sanders argues on appeal that he should not have been assessed the
full rent for April through August of 2005 since the air conditioning did not work.3 Mr. Sanders
reasons that since the trial court released him from rental obligations for February and March of
2005 for lack of heat, the rent assessed for April through August of 2005 should likewise be
eliminated or reduced for lack of air conditioning.

       Before proceeding to discuss the merits of this case, it is important to note that there is no
question that Mr. Sanders was on a month to month tenancy and that Mr. Salter appropriately
terminated the tenancy. The question in this case concerns the terms upon which Mr. Salter
terminated the lease, i.e., how long Mr. Sanders could remain in the premises rent free. Likewise,


        3
           Since Cheatham County has a population of less than 68,000 according to the 2000 federal census, this case
is not subject to the Uniform Residential Landlord and Tenant Act. Tenn. Code Ann. § 66-28-102(a)(1).

                                                        -3-
it is crucial to note that the landlord in this matter is not even accused of withholding heat or air
conditioning in order to evict Mr. Sanders. On the contrary, the trial court found that when the
HVAC system broke down, the landlord terminated the month to month before January of 2005
tenancy because he did not want to repair the system and, if the tenant chose to remain on the
premises during the summer, then the tenant owed rent.

       The trial court addressed diminished rental in its sixth finding when it found the lack of air
conditioning did not diminish the rental amount since Mr. Sanders was still on the premises despite
Mr. Salter’s wishes and, as such, Mr. Salter had no obligation to make the premises habitable. While
Mr. Sanders argues this result contradicts the trial court’s earlier holding that no rent was due in
February and March due to lack of heat, we are not persuaded.

         We note that there is no proof in the record that this house was not habitable from April
through August of 2005 due to lack of air conditioning. Absent such proof, we find no authority to
find, as a matter of law, that the lack of air conditioning renders a house uninhabitable. For example,
we know of nothing that would prevent a landlord and tenant from agreeing to a lower rent due to
the absence of air conditioning, but we are also unaware of any legal principle that would require
them to do so. In any event, any argument that Mr. Sanders tries to make about the habitability of
the premises from April through August is undercut by the fact he chose to remain although he was
told in December that the air conditioning would not be fixed and that his lease term was terminated.

        Even if one were to assume that the premises were not habitable due to lack of air
conditioning, this “apparent” inconsistency in the trial court’s ruling is corrected when one notes the
trial court made no explicit ruling on the parties’ disagreement about when the lease term ended.
The court found Mr. Salter gave Mr. Sanders notice “to quit the premises prior to January of 2005”
and that no rent was due in January. The parties agreed on these two points. The trial court’s ruling
suggests the court implicitly held that the parties agreed that Mr. Sanders could remain until he
found another home, that a reasonable period of time for that to occur is the three month period of
January through March of 2005, that Mr. Salter had an obligation to maintain the premises in a
habitable condition for this period which he failed to do, leading to the conclusion that Mr. Sanders
did not owe rent for those months. Since Mr. Salter gave Mr. Sanders notice to vacate the premises
before January of 2005 and (under the interpretation of the trial court’s ruling) a reasonable time to
find another house, Mr. Salter thereafter had no obligation to maintain the premises in a habitable
condition, and Mr. Sanders owed rent for April through August of 2005.

        Finally, another way to view this case is that since the landlord gave notice for Mr. Sanders
to vacate the property, which he did not, the landlord was entitled to full rent past January. Since
Mr. Salter did not appeal the trial court’s finding that Mr. Sanders owed no rent for February and
March, then we cannot modify that portion of the judgment. The result might appear inconsistent
to Mr. Sanders, but it is to his benefit.

       Accordingly, the trial court is affirmed. Costs of this appeal are taxed to the appellant, Daryl
Sanders.



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      ____________________________________
      PATRICIA J. COTTRELL, JUDGE




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