                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  August 15, 2011 Session

                C.F. PROPERTY, LLC v. RACHEL SCOTT ET AL.

                  Appeal from the Chancery Court for Sullivan County
                    No. K0035784(C)     E. G. Moody, Chancellor


            No. E2010-01981-COA-R3-CV-FILED-SEPTEMBER 27, 2011


This is a landlord-tenant dispute involving commercial property with a known and disclosed
“leaky roof.” The lease states that the “property” is leased “as is where is.” In an email sent
prior to the execution of the lease, the landlord stated it would “talk about” repairing the roof
after the first year. The leakage increased dramatically after the first year. The tenant began
withholding rent. The landlord filed an unlawful detainer action and the tenant filed a
counterclaim for damages resulting from the leaky roof. A bench trial ensured. The court
held that, by telling the tenant it would “talk about” repairing the roof, the landlord
misrepresented that the roof was repairable when the landlord knew it could not be repaired,
and that the landlord had a duty under the lease to repair the roof. The landlord appeals. We
reverse the judgment and remand for a determination of the damages due the landlord under
the lease.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Reversed; Case Remanded

C HARLES D. S USANO , J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Christopher D. Owens, Johnson City, Tennessee, for the appellant, C.F. Property, LLC.

Thomas A. Peters, Kingsport, Tennessee, for the appellees, Rachel Scott and Randy Scott
dba Finishing Touch.

                                          OPINION
                                                    I.

         Helen So is the chief manager of C.F. Property, LLC, (“the Landlord”), the plaintiff
in this action. The entity owns a commercial building at 117 Cumberland Street, Kingsport1 .
The building has a flat roof that is in a state of disrepair. There are approximately 9,000
square feet of industrial warehouse space under roof. In 2005, Ms. So asked for an estimate
of the cost to repair the roof. She was told that it needed to be replaced. Ms. So
commissioned realtor Charles Dotson to sell the building. She told the realtor that the roof
had numerous leaks, that it would be expensive to fix, and that the property should be
marketed “as-is/where-is.” On or about May 6, 2006, Mr. Dotson showed the property to
Rachel Scott and Randy Scott as a possible site for their metal refinishing business.

        The Scotts are husband and wife. They call their business “Finishing Touch.” We
will refer to the Scotts and the business collectively as “the Tenants.” The Tenants utilize
large vats of chemicals into which the metals being refinished are dipped. Water leakage into
the vats can dilute the chemicals and render them contaminated and possibly useless. When
the Tenants were shown the building, they were told that it had two leaks, one at the front
and one at the rear. Evidence of the leaks was visible in the form of catch basins and tell-tale
signs overhead, although there is a dispute in the proof as to the number of catch basins being
employed when the property was shown to the Tenants.

      Nevertheless, the Tenants notified Mr. Dotson by email dated May 9, 2006, that they
had chosen the property as the best site to accommodate their “rapidly growing business.”
The email further stated:

                Mr. Dotson, we propose to lease the Cumberland building for at
                least 3 years and would like options to renew for two more
                years. We propose a lease rate of $1,500 a month for the three
                year lease. We also ask for the option to purchase the building
                no later than five years from the execution of the lease, at
                today’s offered price of $240,000 (to be negotiated due to the
                leaky roof.) . . .

                Randy’s experience in metal fabrication and commercial
                construction could be helpful in determining a cost effective
                method of repair of the roof problems. He might be able to
                resolve those problems, possibly initiating repairs himself,


        1
          The lease mistakenly lists the address of the property as 117 Commerce Street. The parties agree
that the correct address is 117 Cumberland Street.

                                                   -2-
              assuming the owner’s approval, thereby delaying or eliminating
              any need for costly repairs.

(Emphasis added.)

        Mr. Dotson met with the Landlord and responded by email dated May 10, 2006. He
stated first that his client desired to sell the building rather than leasing it, but would lease
it subject to certain “responses and requirements . . . [that] she does not intend to negotiate.”
The Landlord’s “responses and requirements” included the following:

              she [i.e., Ms. So as the representative of the Landlord] will not
              repair the roof the first year. . . . she will talk about doing it the
              second year

              she does not have a problem with Randy attempting to repair the
              roof but she won’t help and he is responsible if he gets hurt

              [Ms. So] does not intend to be a facility or property manager and
              does not intend to repair or maintain the building. She is renting
              it under the same intent as if she was selling it . . . . it’s leased as
              is, where is.

                                             *   *     *

              . . . . If these requirements don’t work for you . . . we need not
              go further.

(Paragraph numbering in original omitted.)

       Mr. Dotson prepared a written lease. On May 31, 2006, the parties met in an office
located in the subject building and signed the lease agreement. Section IV of the lease sets
forth certain “Rights and Responsibilities of Lessor” as follows:

              A. Maintenance

              During the Term, Lessor’s obligations shall include the
              following:

              1. Building.



                                                 -3-
              Lessor leases property “as is where is” without accepting any
              obligation whatsoever to maintain the premises. Lessor has
              informed Lessee of that and has told the Lessee that 2 heaters in
              the warehouse do not work, that the dust collector probably does
              not work and has not been used during the Lessor’s term of
              ownership, that the roof in the back part of the building leaks
              and the owner does not plan to repair it.

                                          *    *     *

              C. Mechanicals Warranty.

              Lessor hereby makes clear that Lessor has no intent to maintain
              the infrastructure of the building. Lessor’s intent was to sell the
              building in it’s [sic] current condition.

(Bold type and italics in original omitted.)

       The Tenants moved equipment into the building in 2006. They paid the rent regularly
from May 2006 through June 2007. In June 2007, they relocated their business into the
building. Shortly thereafter, the roof developed additional leaks. Randy Scott attempted
unsuccessfully to repair the leaks. In the summer of 2007, the Tenants, at the Landlord’s
request, obtained an estimate for replacing the roof. The cost of replacing the roof was
approximately $75,000. The Landlord refused to replace the roof. The roof continued to
deteriorate to the point that eventually there were approximately 80 leaks covering
approximately half the area of the building.

        The Tenants tried to cope with the leakage through an elaborate system of tarps,
funnels and catch basins. They began taking offsets from their rent for lost usable area as
well as for their time and expense in dealing with the water. The Landlord disagreed with
the offsets and filed an unlawful detainer action in general sessions court. When the case
reached the trial court, the Tenants filed a counterclaim for damages, including lost profits,
resulting from the leaky roof. Eventually, the case went to trial without a jury on the issues
of the amount of rent owed and the counterclaim. The Tenants vacated the property as of the
morning of trial.

       The court made the following findings and conclusions that are pertinent to this
appeal:




                                               -4-
                    FINDINGS OF FACT

The lease defines the premises to mean the interior of the
building consisting of 9380 sq. ft. . . . .

                            *   *     *

The lease defines the property to mean the land and the building.

The lease provides that the lessor leases the property “as is
where is” without accepting any obligation whatsoever to
maintain the premises.

                            *   *     *

The [Tenants] did not inspect the roof prior to signing the lease
but relied upon the statements of the [Landlord] and her real
estate agent about the condition of the roof.

                            *   *     *

It was not obvious to a lay person that the roof could not be
repaired but that it would have to be replaced.

                            *   *     *

The Court finds the testimony of the [Tenants] to be credible.

                            *   *     *

Neither the [Landlord] nor her real estate agent told the
[Tenants] that the roof could not be repaired and that it needed
to be replaced before they signed the lease.

                            *   *     *




                                -5-
                  CONCLUSIONS OF LAW

                             *   *     *

Although there is a provision in the lease that the [Landlord]
will not be responsible to maintain the premises (interior of the
building), there is not a provision about maintaining the roof;
therefore, an ambiguity exists as to whose responsibility it is to
repair the roof.

Although the [Landlord] had no duty to repair or replace the
roof in the lease agreement, she agreed to discuss the repair of
the roof after the first year. The [Landlord] even requested that
the [Tenants] obtain an estimate to replace the roof in 2007
which was after the first year. The Court finds that the
[Tenants] expected the [Landlord] to make reasonable efforts to
repair the roof after the first year based on her promise. The
[Landlord] refused to replace the roof and made no efforts to
repair it even though she knew the condition of the roof
rendered the building unfit for the [Tenants’] business which
refusal was unreasonable under all of the circumstances.

The [Landlord] and her real estate agent admitted that they did
not disclose to the [Tenants] that there were four leaks when the
lease was entered into. The [Landlord] had superior knowledge
of the condition of the roof since she had obtained an estimate
to replace the roof in 2005 and knew that it needed to be
replaced and that it was not repairable. The Court finds that the
[Tenants] would not have entered into the lease if they had been
informed that the roof needed to be replaced and was not
repairable. The [Tenants] thought there were only two leaks and
they thought that they could repair them. The [Landlord] knew
there were at least four leaks and she knew that the roof was not
repairable. The [Landlord] misrepresented the roof as being
repairable by agreeing to discuss repairing it after the first year.

Since the leaks got considerably worse the latter part of October
2007, since the leaks affected approximately one half of the
building and since the [Tenants’] annual income had decreased



                                 -6-
             more than half, the [Tenants] should only be responsible for one
             half of the rental after October 2007 as a matter of equity. . . .

             Since the [Landlord] has continued to occupy approximately one
             tenth of the square footage of the premises, the rental should be
             reduced by an additional ten percent (10%). . . .

                                         *   *     *

             The Court finds that the [Landlord] is entitled to Twenty Five
             Thousand Four Hundred Twenty Five Dollars ($25,425) for
             rent, [plus] . . . reimbursement for utilities and . . .
             reimbursement for taxes for a total of Thirty Thousand Five
             Hundred Seventy Seven Dollars and Fifteen Cents ($30,577.15).

             The Court finds that the [Tenants] are entitled to Sixty Nine
             Thousand Dollars ($69,000) for loss of income and One
             Hundred Thirty Five Thousand Dollars ($135,000) for the
             replacement and disposal costs of their chemicals for a total of
             Two Hundred and Four Thousand Dollars ($204,000).

             Therefore, after offsetting the [Landlord’s] damages against the
             [Tenants’] damages, the [Tenants] are entitled to a judgment of
             One Hundred Seventy Three Thousand Four Hundred Twenty
             Two Dollars and Eighty Five Cents ($173,422.85) against the
             [Landlord] on their [counterclaim]. . . .

             As suggested by the [Tenants] “Where one of two persons must
             suffer a loss, he should suffer whose act or negligence
             occasioned the loss. This maxim applies to any person who,
             even innocently, misleads a third party to his detriment.”
             (Gibson’s Suits in Chancery, 7 th ed. p.31).

(Capitalization, bold print and underlining in original; paragraph numbering in original
omitted.)

      The court entered judgment in accordance with its opinion. The Landlord appeals.




                                             -7-
                                              II.

       The Landlord raises the following issues taken verbatim from its brief:

              Whether the trial court erred in its interpretation of the lease
              agreement’s provisions as to, and application of the law as to,
              the responsibilities of the Lessor to repair and or maintain the
              subject building.

              Whether the trial court erred in finding that [the Landlord]
              engaged in misrepresentation.

                                             III.

       When a trial court sits without a jury, as in this case, we review findings of facts de
novo upon the record accompanied by a presumption of correctness that we must honor
unless the preponderance of the evidence is against those findings. Tenn. R. App. P. 13(d);
In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010). “Questions of law . . are reviewed de
novo with no presumption of correctness.” Id. The interpretation of a written lease is a
question of law. APAC-Tennessee, Inc. v. J.M. Humphries Constr. Co., 732 S.W.2d 601,
604 (Tenn. Ct. App. 1986); see Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn.
2006).

                                             IV.

        The Landlord argues that the trial court overlooked fundamental landlord-tenant law
in finding that it had an obligation to repair or replace the roof in the absence of an express
agreement in the lease to do so. The Landlord further argues that the lease expressly
disclaims any obligation to repair or replace the roof, and that the trial court seemingly so
found, but then held to the contrary. The Tenants argue that the trial court correctly found
that the Landlord disclaimed responsibility for maintaining the “premises,” defined as the
interior of the building, but did not disclaim responsibility for maintaining the “property,”
defined as the land and building. We agree with the Landlord.

       In the absence of an express agreement, a landlord is not obligated to repair or to keep
in repair a leased building. Evco Corporation v. Ross, 528 S.W.2d 20, 23 (Tenn. 1975);
Boyd v. McCarty, 222 S.W. 528, 529 (Tenn. 1920);Gooch-Edenton Hardware Co. v. Long,
69 S.W.2d 254, 257 (Tenn. Ct. App. 1933). As the Supreme Court stated in Evco:




                                              -8-
               We recognize that ordinarily, as between the landlord and
               tenant, the lessor has no obligation to make repairs upon leased
               premises. His obligation to do so, in general, rests upon
               contract.

Evco, 528 S.W.2d at 23.

Our research indicates that Evco has been cited approvingly on one point or another over 100
times, with no “negative” treatment. The Tenants do not even argue that Evco is an incorrect
statement of the law. Thus, our starting point is that, unless the Landlord in the present case
agreed in the lease to repair or replace the roof, it did not have that obligation.

        The trial court made conflicting statements on the issue of responsibility for repairing
the roof. At the outset of its legal analysis, the court stated that “an ambiguity exists [in the
lease] as to whose responsibility it is to repair the roof.” One paragraph later, the court stated
that, “the [Landlord] had no duty to repair or replace the roof in the lease agreement . . .”
(Emphasis added.) Since the court ultimately held the Landlord liable for damages caused
by the leaking roof, we must assume that the court followed the “ambiguity” theory to the
end result of that finding, which was, ultimately, the legal conclusion that the Landlord, in
fact, did have a duty to repair or replace the roof.

        Even after giving due deference to the trial court’s findings of credibility, we must
hold that the lease does not impose a duty on the landlord to repair the roof. Even if the
disclaimer of “any obligation whatsoever to maintain the premises” is read narrowly to refer
only to the interior of the building, other language in the lease unambiguously proclaims that
the Landlord is not willing to spend money on the building by making repairs or renovations.
We note that the disclaimer language we have just quoted follows unequivocal language that
includes a disclaimer about the entire property, i.e., “Lessor leases property [i.e.,“the land
and building”] ‘as is where is’ without accepting any obligation whatsoever to maintain the
premises.” (Emphasis added.) In other words, everything that follows the word “without”
is only further elaboration on the disclaimer. Our conclusion is supported by the language
in the same paragraph that states “the roof in the back part of the building leaks and the
owner does not plan to repair it.” Also, under the section dealing with “Rights and
Responsibilities of Lessor” the lease clearly states, “Lessor hereby makes clear that Lessor
has no intent to maintain the infrastructure of the building. Lessor’s intent was to sell the
building in it’s current condition.” In this context, the ordinary usage and meaning of the
term “infrastructure” is “the set of interconnected structural elements that provide the
framework for supporting the entire structure.”                               WordiQ.com
(http://www.wordiq.com/definition/Infrastructure). This would necessarily include the roof.



                                               -9-
Thus, we conclude that the language within the four corners of the lease makes it clear that
the Landlord was not accepting the obligation of repairing or replacing the roof.

         Even if one could reasonably conclude that the lease is ambiguous – again, we hold
that it is not – we find that the parol evidence preponderates in favor of the conclusion that
the Landlord made it clear that it did not intend to repair the roof and demanded that the
Tenants accept that “requirement.” The Tenants’ proposal to lease the property clearly shows
that they knew the building had a “leaky roof.” The Landlord’s response, through the realtor,
was a “take it or leave it” proposition that the Tenants obviously accepted. The Landlord’s
“requirements” for leasing the property include the following:

               [Ms. So, as the representative of the Landlord] does not intend
               to be a facility or property manager and does not intend to repair
               or maintain the building. She is renting it under the same intent
               as if she was selling it . . . it’s leased as is, where is.

Almost identical language is contained in the lease, which strengthens our conclusion that
the “take it or leave it” proposition posed by the Landlord was accepted and memorialized
in the lease. We hold that the trial court erroneously concluded that the Landlord had a duty
under the lease to repair the roof.

        It is true that the Landlord’s email response included the statement that it “will not
repair the roof the first year . . . she will talk about doing it the second year.” However,
there is no way a promise to “talk about” repairing the roof could overcome the general
common law we have discussed and the clear language in the lease. Thus, unless the
promise to “talk about . . . it” amounts to a misrepresentation as found by the trial court, the
Landlord is not liable for damages caused by the leaky roof. We now move to the
“misrepresentation” issue.

       The trial court found that the Landlord “misrepresented the roof as being repairable
by agreeing to discuss repairing it after the first year.” The court also found that the roof
was not repairable and that the Landlord knew it was not repairable. The court imputed
superior knowledge to the Landlord and found that the Landlord therefore failed to disclose
the unrepairable state of the roof.

        The evidence preponderates against the trial court’s findings. The Tenants simply
knew too much to bury their head in the sand and assume that the Landlord would abandon
all the disclaimers in the lease and decide at the end of one year to repair or replace the roof.
The Tenants knew the roof leaked. They knew the leaks were so bad that the Tenants
demanded a concession on the purchase price in the event they exercised a proposed option

                                              -10-
to purchase. Mr. Scott, who claimed some degree of expertise in “metal fabrication and
commercial construction” knew that leaks in roofs do not get better over time but rather get
worse. The Tenants knew there was at least one leak in the back of the building and one
leak in the front of the building. They knew that their business required a building that did
not leak. By the testimony of Mr. and Mrs. Scott, the roof had the same exact leaks one year
after they signed the lease that it had when they signed it. The Tenants admitted that they
did not inspect the roof prior to executing the lease or hire any professional to inspect it.

       With all their knowledge, especially in light of the clear disclaimers in the lease, it
was not reasonable for the Tenants to simply close their eyes to the known facts and rely on
one statement that the Landlord would “talk about . . . it” to conclude that (1) the roof need
not be replaced but could be repaired and (2) the Landlord would repair it. This Court has
held that “[a]n essential [element] of any action for fraud, deceit, failure to disclose or
negligent or innocent misrepresentations is detrimental reliance on a false premise.” McNeil
v. Nofal, 185 S.W.3d 402, 408 (Tenn. Ct. App. 2005)(quoting Williams v. Berube &
Associates, 26 S.W.3d 640, 645 (Tenn. Ct. App. 2000)). The reliance must be justifiable,
or reasonable. Id. “Justifiable reliance . . . is not blind faith.” Id. (emphasis in original).
The trial court did not address the reasonableness of the Tenants’ expectations directly as
far as we can tell. It only addressed what the Tenants “expected,” which was for the
Landlord to do an “about face” after a year and fix the roof. It is our conclusion that blind
faith was abundant in the Tenants’ expectations and reasonable reliance was lacking. We
hold that the trial court erred in finding the Landlord liable to the Tenants on the basis of a
misrepresentation.

                                              V.

        The judgment of the trial court is reversed. Costs on appeal are taxed to the
appellees, Rachel Scott and Randy Scott. This case is remanded, pursuant to applicable law,
for a recalculation of the damages due Landlord and such other proceedings as are necessary
and consistent with this opinion.


                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                             -11-
