                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1201 / 12-2145
                              Filed April 16, 2014


THE PRINTER, INC.,
     Plaintiff-Appellant,

vs.

BENSKIN BROS., INC.,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.



      Tenant appeals the district court’s declaratory judgment ordering it to

replace the HVAC system and parking lot of the leased building. The tenant also

appeals the district court’s award of attorney fees to the landlord. REVERSED

AND REMANDED WITH DIRECTIONS.




      Steven Wandro of Wandro & Associates, P.C., Des Moines, Mark E.

Weinhardt and Danielle M. Shelton of Weinhardt & Logan, P.C., Des Moines, for

appellant.

      Timothy C. Hogan of Hogan Law Office, Des Moines, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                            2


DANILSON, C.J.

       The Printer, Inc. (TPI) appeals the district court’s ruling ordering it to pay

for the replacement of the leased facility’s heating, ventilation, and air

conditioning (HVAC) system, as well as the replacement of the parking lot.1 TPI

maintains the lease agreement requires the landlord, Benskin Bros, Inc.,

(Benskin) to replace the HVAC system and parking lot. TPI also maintains the

district court erred by ordering it to pay the “reasonable attorney fees” of Benskin.

Because we find the language of the lease does not require TPI to replace the

HVAC system and parking lot, we reverse the district court’s ruling ordering TPI

to do so. Furthermore, because we conclude it is reasonable to imply a duty to

make major repairs or replace the HVAC system and the parking lot upon

Benskin, and that these obligations are indispensable to the purpose of the lease

between these parties, we remand with directions to enter an order obligating

Benskin to make such repairs or replacements as become necessary. We also

remand with directions for the district court to determine whether TPI may

recover breach of contract damages for reimbursement for repairs to the HVAC

system. Finally, we reverse the district court’s award of attorney fees and expert

fees to Benksin.

I. Background Facts and Proceedings.

       This case arises out of a fifteen-year commercial-lease agreement

between Benskin and TPI for an industrial facility used by TPI for operation of its

1
  Although we refer to the issue as “replacement of the parking lot,” as the parties and
district court did, it is clear from the record that the claim actually revolves around the
issue of replacing or redesigning eaves on the building that empty into the parking lot,
creating a flow of water that then creates an icy condition in the parking lot during the
winter months.
                                             3


technology and printing business. At issue in the lawsuit is which party, if either,

is required by the lease to replace the aging HVAC system and the parking lot of

the facility.

        On June 14, 2011, TPI filed the underlying action against Benskin for

breach of contract and a declaratory judgment. TPI alleged the terms of the

lease required Benksin to replace twenty-five out of the twenty-seven2 heating

and cooling units and had failed to do so. In its answer, Benskin denied all

claims and filed a counterclaim for breach of contract and declaratory judgment,

asserting that TPI was responsible for all repair and replacement of the HVAC

system and parking lot.3


2
  At trial, TPI explained that the building was leased for the particular purpose to run its
printing business. The printing business requires several large machines, which emit a
certain amount of heat, to run throughout the business day. Furthermore, for the ink to
set correctly on the pages, the temperature within the building has to be consistently
maintained. It is for this reason the building requires twenty-seven HVAC units. At the
time TPI leased the building, only twenty-five units were in place, but the tenant had two
extra units installed “for a specific requirement of [the] business.”
3
  The lease in questions reads, in pertinent part:
         This lease is made and entered into on May 14, 2004, by and between
         Benskin Bros., Inc. (“Lessor”), and The Printer, Inc. (“Lessee”)(“Lease”).
         Mr. William C. Benskin has personally guaranteed the obligations of
         Lessee under this Lease pursuant to a separately delivered personal
         guarantee.
         1. Premises and Term. In consideration of rents, covenants, and
         agreements of Lessee set forth herein, Lessor does hereby lease the real
         property, buildings, and improvements, hereinafter the “premises”,
         located in the City of Des Moines, County of Polk, State of Iowa. . . .
         ....
         6. Repairs and Use. Except as herein provided, Lessor and Lessee
         agree:
         a. Lessee shall keep the premises in good repair and deliver to Lessor
         physical possession of the premises, upon the termination of this Lease
         or any extension thereof, in good condition, ordinary wear and tear
         excepted. Lessee, at the termination of the lease, may remove all trade
         fixtures, additions, installations or alternations installed by Lessee after
         the beginning of this Lease, provided Lessee repairs any damage caused
         by removal thereof. If Lessee does not remove such fixtures, additions,
         installations or alterations within, five days after the end of the term, the
                                     4



same shall be conclusively deemed to have been abandoned to Lessor,
and Lessee shall have no further rights or obligations relating thereto.
....
7. Alterations. Lessee shall have the right to make alterations to the
premises with the written consent of the Lessor, which consent shall not
be unreasonably withheld. Alterations made by the Lessee will be made
in a first-class workmanlike manner.          All fixtures, equipment and
furnishings installed in or attached to the premises by and at the expense
of Lessee may be removed by Lessee at any time or from time to time
when not in default hereunder, provided that their removal will not
damage the premises or that any damage caused by their removal will be
promptly repaired by Lessee at its expense and provided further mat any
such property not so removed before the expiration of this Lease, or as
provided above, shall become the property of the Lessor.
8. Repairs by Lessor. Lessee shall not be obligated to maintain the roof,
foundation, structure, or existing metal siding of the buildings situated on
the premises. Lessor shall be obligated to maintain the roof on said
premises in a weather-proof condition and agrees to reimburse Lessee
(net of any insurance received by Lessee) for any damage to Lessee or
Lessee’s property caused by failure of Lessor to keep said roof in a
weather-proof condition and agrees to reimburse Lessee for any damage
to Lessee or Lessee’s property caused by failure to Lessor to keep roof in
a weather-proof condition. Notwithstanding any other provision of this
Lease, Lessee shall be responsible for the periodic maintenance of the
areas on the roof where the heating and air-conditioning were inserted
through roof.
9. Damage by Casualty or Fire. If said premises should be damaged or
destroyed by casualty, explosion or fire, however caused, or by the
elements or any cause or happening, so as to be unfit, in the opinion of
Lessee for Lessee’s continued use, then this Lease shall immediately
cease and terminate and any rent paid in advance shall be apportioned
and refunded to Lessee; but if said premises should be damaged and
destroyed by casualty, explosion or fire, however caused, or by the
elements or any cause or happening and still be fit, in the opinion of
Lessee, for Lessee’s continued use, then the same shall promptly be
restored by Lessor to its previous condition and a just and fair proportion
of the rent herein reserved shall abate until the same have been
completely restored and a like proportion of any rent paid in advance shall
be refunded to Lessee.
....
11. Quiet Enjoyment. Lessor agrees to put Lessee in possession of said
premises at the commencement of the term and agrees that Lessee,
upon paying the rent and performing the covenants and conditions
hereof, shall peaceably and quietly have, hold and enjoy said premises
and all appurtenances thereof during the full term without any interruption
of Lessor or anyone claiming by, through or under Lessor.
....
13. Health and Safety. Lessee agrees that at the time during the term of
this Lease comply with all ordinances, orders, laws and requirements of
all governmental authorities having jurisdiction over said premises
                                          5


       A bench trial was held on September 5, 2012. Following the trial, the

district court entered a findings of fact, conclusions of law, and order. In it, the

district court found the language of the lease was unambiguous and required TPI

to maintain, repair, and when needed, replace the HVAC system and parking lot

as required to bring the premises into “good condition.” Accordingly, the district

court ordered the TPI to do so. It also ordered TPI to pay all costs incurred by

Benskin, “including reasonable attorney’s fees and expert witness fees, to be

determined by the Court.” TPI appeals.

II. Standard of Review.

       Appellate review of an action for declaratory relief is determined by the

manner in which the action was tried to the district court. United Fire & Cas. Co.

v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). This case concerns an

alleged ambiguity in the provisions of a lease, a matter generally resolved as a

matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). The

parties do not disagree with this standard of review.

       While we are not bound by the district court’s legal conclusions, we are

bound by its findings of fact if such findings are supported by substantial

evidence in the record. Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents,

471 N.W.2d 859, 862 (Iowa 1991). An appellate court is not free to substitute its

own findings of fact for those of the district court simply because the evidence

       respecting licenses, sanitary and health requirements, police regulation,
       fire prevention and nuisances; provided, however, that nothing in this
       paragraph shall require Lessee to make or pay for any improvements,
       repairs, alterations, additions or structural changes to said premises.
       ....
       23. Entire Agreement. This Lease contains the entire agreement of the
       parties. It may be modified only by an agreement in writing signed by the
       parties.
                                        6

supports different inferences. Hendricks v. Great Plains Supply Co., 609 N.W.2d

486, 490 (Iowa 2000).

      Whether to grant common law attorney fees rests in the court’s equitable

powers.   Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510

N.W.2d 153, 159 (Iowa 1993).        Thus, our review of the issue is de novo.

Williams v. Van Sickel, 659 N.W.2d 572, 579 (Iowa 2003).

III. Discussion.

      A. Interpretation of Lease.

      The district court found that the lease unambiguously required TPI “to

perform such maintenance, repair and replacement of the Premises, including

(but not limited to) the HVAC and the Parking lot, as may be required to bring the

Premises into good condition” and entered a declaratory judgment accordingly.

Here, TPI argues the district court erred in its determination, because the lease,

unambiguously or not, requires Benksin to make such necessary replacements.

TPI also argues, in the alternative, that if we find the lease does not require

Benskin to make the replacements, we should vacate the judgment of the district

court and enter an order stating the lease does not impose a duty to replace

upon either party.

      Leases are contracts as well as conveyances of property, and ordinary

contract principles apply. Dickson v. Hubbell Realty Co., 567 N.W.2d 427, 430

(Iowa 1997). Where, as here, the dispute centers on the meaning of certain

lease terms, we engage in the process of interpretation, rather than construction.

See Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa 1999) (stating
                                         7


interpretation is process of determining meaning of contract terms while

construction is process of determining legal effect of such terms).

      The primary goal of contract interpretation is to determine the parties’

intentions at the time they executed the contract. See Hartig Drug Co., 602

N.W.2d at 797. Interpretation involves a two-step process. First, from the words

chosen, a court must determine “what meanings are reasonably possible.”

Restatement (Second) of Contracts § 202 cmt. a (1981). In doing so, the court

determines whether a disputed term is ambiguous. A term is not ambiguous

merely because the parties disagree about its meaning. Hartig Drug Co., 602

N.W.2d at 797. A term is ambiguous if, “after all pertinent rules of interpretation

have been considered,” “a genuine uncertainty exists concerning which of two

reasonable interpretations is proper.” Id.

      1. TPI’s Obligation to Make Repairs.

      We do not believe the lease agreement requires TPI to replace the HVAC

system or the parking lot. The lease imposes a duty upon TPI to “keep the

premises in good repair and deliver to Lessor physical possession of the

premises, upon the termination of this Lease or any extension thereof, in good

condition, ordinary wear and tear excepted.” The district court determined TPI’s

obligation to keep the premises in “good repair” and to deliver the property back

to Benksin in “good condition, ordinary wear and tear excepted” requires TPI to

maintain, repair, and replace as necessary.       However in Mastland v. Evans

Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993), our supreme court considered

whether tenants had breached their lease requiring them to return the property in

the same condition as at the commencement of lease, ordinary wear and tear
                                         8


excepted, after the building was damaged in a fire and the tenants did not repair

the damage. The court determined the tenant was not in breach, stating:

       [T]he common law rule provides that . . . [t]he tenant is only
       required, in the absence of stipulations in the lease, to use
       reasonable diligence to protect buildings on the demised premises
       from fire, and is not liable for accident damages or destruction by
       fire; he is liable only if the buildings are destroyed through his
       wrongful act or negligence.

Id. at 687 (citing 49 Am. Jur .2d Landlord and Tenant § 934, at 910 (1970)). Our

supreme court, discussing a life tenant rather than a tenant with a commercial

lease for a specific term, stated that a “tenant must, at his own expense, make

such repairs as are necessary to preserve the improvements and to prevent

waste due to dilapidation. Of course, he is not bound to make extraordinary

repairs, which involve the substitution of new structures for old, or parts thereof

for old.” In re Estate of Gauch, 308 N.W.2d 88, 91 (Iowa 1981). We believe the

same rule applies.

       Here, the terms of the lease do not specifically impose an obligation to

replace, only repair and maintain. Similar to the tenant in Mastland, and the life

tenant in In re Estate of Gauch, unless there was some fault, wrongful act, or

negligence on behalf of TPI, TPI is not obligated to replace a depreciable asset

which has reached the end of its useful life. Here, TPI had a duty to maintain the

HVAC system and parking lot. Having done that, it does not have a duty to

replace either the parking lot or the HVAC system due to ordinary wear and tear.

       To impose a duty to replace a landlord’s depreciable assets without a

specific lease term is a financial burden not assumed by the tenant. This

interpretation is also in harmony with the tenant’s ability to install trade fixtures
                                            9


and remove the fixtures at the time the lease expires. 4 If a tenant was not

entitled to remove trade fixtures, the landlord would reap a financial gain from the

tenant.

       2. Benskin’s Obligation to Make Repairs.

       The district court was guided by the principle that “the lessor is under no

obligation to make repairs unless such obligation is imposed by the terms of the

lease.” Healy v. Tyler, 129 N.W. 802, 803 (Iowa 1911). However, in Trapalis v.

Gershun, 145 N.W.2d 591, 595 (Iowa 1966), our supreme court suggests Healy

is limited to catastrophic damage, stating:

       In that case there was flood damage. Other cases cited by
       defendants involved destruction by fire or catastrophe over which
       neither lessor nor lessee had any control and the question was the
       contractual obligation of the parties. The cases are not factually
       comparable to the case at bar. Here there was no sudden
       catastrophe.

In Trapalis, the building had become so deteriorated that the plaintiff was put out

of business. 145 N.W.2d at 593. We acknowledge, however, in Trapalis the

landlord had an express duty to maintain the structural walls unlike the contract

between TPI and Benskin.

       One authority has explained the evolution of the law requiring a landlord to

make repairs, stating:

       At old common law the landlord was under no duty to repair unless
       he expressly promised to make such repairs. If the landlord
       obligated himself to make repairs but failed to do so, the tenant was
       left to his action for damages only and was not allowed to terminate
       the lease or be relieved of his obligation to pay rent due to the

4
  Section six of the lease agreement, which states, “Lessee, at the termination of the
lease, may remove all trade fixtures, additions, installations or alternations installed by
Lessee after the beginning of this Lease, provided Lessee repairs any damage caused
by removal thereof.”
                                        10


       principle that the two obligations were not mutually dependent.
       Only when the landlord’s breach amounted to constructive eviction
       could the tenant vacate the premises and be relieved of his
       obligation to pay rent. Modern decisions generally have relaxed the
       requirements for constructive eviction to the point of ignoring the
       concept of independence of promises. A lease should be governed
       by the contract principle that the parties’ obligations are mutually
       dependent. This is analogous to the emerging position taken by a
       number of courts that the landlord's warranty of habitability and the
       tenant's obligation to pay rent are mutually dependent.

Restatement (Second) of Property, Land & Ten. § 5.5 (Reporter’s note to section

5.5 #5) (1977) (internal citations omitted). Although the property involved in this

action is a commercial property and not residential, the obligation of Benskin to

make a repair depends entirely upon the facts.

       Here there is no provision in the contract requiring Benskin to maintain the

structure, including the parking lot, and HVAC system in good repair, a suitable

condition, or to TPI’s high standards. Notwithstanding Benskin’s right to let the

property fall into disrepair, Benskin did promise quiet enjoyment of the property in

section eleven of the lease agreement. Much like the facts in Trapalis, if the

property became in such disrepair that TPI was put out of business, TPI may be

entitled to claim constructive eviction.     Thus, a lessor’s right to allow its

commercial property to become in disrepair may have its limits.

       Moreover, we note section thirteen of the lease absolves TPI from making

any “repairs, alterations, additions or structural changes to the premises” to

comply with laws and ordinances related to safety and health requirements. By

implication, we can only conclude any such repair must fall upon the

responsibility of Benskin.
                                         11


       Notwithstanding we are unable to conclude from our facts however, that

the repairs to the HVAC system or the parking lot are so significant that TPI will

be put out of business or any law or ordinance is violated.

       In respect to any other implied promise to repair the HVAC system and

parking lot, one authority has stated:

       Where it would not be reasonable in the light of the term of the
       lease, the rent that is being paid, the purposes for which the leased
       property is used, and other circumstances, to expect the tenant to
       assume the cost of major repairs to the leased property that
       become necessary through no fault of the tenant, a conclusion is
       justified that the landlord impliedly promised to make those major
       repairs.

Restatement (Second) of Property, Land & Ten. § 5.5, cmt. f (1977).

       This commercial property clearly was used for the primary purpose of the

business being operated by TPI. The business required specific temperatures to

be maintained and an HVAC system to support the business requirements. TPI

was paying substantial rent, $360,000 per year. The lease was for a term of

fifteen years. Replacement of the HVAC system was estimated to be $358,900.

We have no estimate in respect to the parking lot but we suspect it too may

involve a substantial cost.

       One court has observed:

       A covenant in a lease can arise only by necessary implication from
       specific language of the lease or because it is indispensable to
       carry into effect the purpose of the lease. In determining, under
       contract law, what covenants are implied, the object which the
       parties had in view and intended to be accomplished, is of primary
       importance. The subject matter and circumstances of the letting
       give at least as clear a clue to the natural intentions of the parties
       as do the written words. It is of course not the province of the court
       to make a new contract or to supply any material stipulations or
       conditions which contravene the agreements of the parties. Terms
       are to be implied not because they are just or reasonable, but
                                          12


       rather for the reason that the parties must have intended them and
       have only failed to express them or because they are necessary to
       give business efficacy to the contract as written, or to give the
       contract the effect which the parties, as fair and reasonable men,
       presumably would have agreed on if, having in mind the possibility
       of the situation which has arisen, they contracted expressly in
       reference thereto.

Marini v. Ireland, 265 A.2d 526, 533 (N.J. 1970) (internal citations omitted).

       In regard to the parking lot, Benskin has provided no authority to support

the conclusion that a tenant is obligated to replace a deteriorated parking lot

absent a specific lease provision unless the parking lot’s deterioration was due to

the tenant’s fault, negligence, or failure to maintain it. One court has stated,

“Absent a specific lease provision that would have required the tenant to replace

structures or items that had deteriorated due to time, the lessee should not be

responsible for the costs of repairs that would cause the condition of the parking

lot to be better than received.” Miller v. Gammon & Sons, Inc., 67 S.W.3d 613,

624 (Mo. App. W.D. 2001). We agree.

       Here, we conclude it is reasonable to imply a duty upon Benskin to repair

or replace the HVAC system and the parking lot as may be necessary or become

necessary. We conclude these obligations are indispensable to the purpose of

the lease between these parties. This is a fair implication in light of section eight

of the lease that specifically absolves TPI from making any repairs to the “roof,

foundation, and structure.”    Such repairs do not include minor repairs to the

HVAC system required for maintenance purposes, an obligation to be borne by

TPI. We agree with TPI’s interpretation of the contract that the parking lot is part

of the “structure” as that term is used in section eight of the lease.
                                          13


       B. Damages.

       In addition to its declaratory action, TPI sought breach of contract

damages in the sum of $2713.57 for reimbursement for repairs to the HVAC

system. Although the district court did not directly address this issue, its contract

interpretation in favor of Benskin clearly prevented TPI from any recovery.

Accordingly we remand to the district court to determine if TPI is entitled to

recover this sum in light of our interpretation of the contract.

       C. Premises Suitable for Intended Use.

       We acknowledge TPI’s petition alleged the parties’ agreement required

Benskin to ensure the premises were fit and suitable for the purpose for which it

was leased.      However, the district court did not specifically address this

contention, although it did conclude that the written contract was a fully

integrated agreement. TPI has not raised this issue on appeal, and accordingly

we conclude the issue was waived.5

       D. Attorney Fees.

       The district court awarded Benskin “all reasonable attorney’s fees and

expert witness fees.” Both parties concede that neither the leasing agreement in

question nor an applicable statute provide for such an award. As such, TPI asks

that we reverse the district court’s award.

       “Generally, a party has no claim for attorney fees as damages in the

absence of a statutory or written contractual provision allowing such an award.”

Williams v. Van Sickel, 659 N.W.2d 572, 579 (Iowa 2003). However, the district

5
  See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the
arguments [TPI] might have made and then search for legal authority and comb the
record for facts to support such arguments.”); see also Iowa R. App. P. 6.903(2)(g)(3).
                                        14


court may award common law attorney fees if a party proves the opposing party’s

conduct exceeds the “willful and wanton disregard for the rights of another

standard required to prove punitive damages.”        Id.   “The opposing party’s

conduct ‘must rise to the level of oppression or connivance to harass or injure

another.’” Id. (quoting Hockenberg Equip. Co., 510 N.W.2d at 159. Here, we

have concluded Benskin is not the prevailing party, and thus this is not one of the

rare instances where common law attorney fees may be awarded. See Id.

      Thus, we reverse the district court’s award of attorney fees and expert

witness fees.

IV. Conclusion.

      Because we find the language of the lease does not require TPI to replace

the HVAC system and parking lot, we reverse the district court’s ruling ordering

TPI to do so. Furthermore, because we conclude it is reasonable to imply a duty

to make major repairs or replace the HVAC system and the parking lot, as may

be necessary, upon Benskin, and these obligations are indispensable to the

purpose of the lease between these parties, we remand with directions to enter

an order obligating Benskin to make such repairs or replacements as become

necessary. We also remand with directions for the district court to determine

whether TPI may recover breach of contract damages for reimbursement for

repairs to the HVAC system. Finally, we reverse the district court’s award of

attorney fees and expert fees to Benksin.

      REVERSED AND REMANDED WITH DIRECTIONS.
