James D. Holder and Barbara L. Holder v. S & S Family Entertainment, LLC ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 17, 2013 Session
JAMES D. HOLDER AND BARBARA L. HOLDER v. S & S FAMILY
ENTERTAINMENT, LLC.
Appeal from the Circuit Court for Sumner County
No. 83CCI2011CV725 C. L. Rogers, Judge
No. M2013-00497-COA-R3-CV- Filed March 19, 2014
This dispute arose at the end of two long-term commercial leases and a contract for the sale
of two businesses and their assets, which businesses operated at the leased premises. The
issues pertain to what assets were purchased, whether the tenant properly maintained the
premises during the lease term, and whether the tenant returned the premises to the landlord
in the same condition as at the commencement of the leases. The trial court ruled that the
tenant had not purchased the assets in dispute, which the tenant removed at the end of the
lease; thus, the tenant was liable for removing the assets. The court also found that the tenant
breached both leases by failing to maintain the premises and failing to return the premises
in the same condition as at the commencement of the leases. The tenant insists the court erred
in finding that the landlord owned the assets in dispute; it also insists it did not breach any
duties arising under the leases. The tenant also contends it is not liable for any of the
numerous categories of damages awarded because the landlord failed to prove its damages.
We affirm the trial court’s rulings as to the ownership of the disputed assets and the findings
that the tenant breached numerous provisions of the leases. As for the various awards of
damages, we affirm in part and reverse in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part and Reversed in Part
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.
Gerald Neenan and Aubrey B. Harwell, Jr., Nashville, Tennessee for the appellant, S & S
Family Entertainment, LLC.
James Lawrence Smith and Karen Keyes Diner, Hendersonville, Tennessee, for the
appellees, James D. Holder and Barbara L. Holder.
OPINION
Plaintiffs James and Barbara Holder (“the Holders”) own commercial property in
Hendersonville and Gallatin, Tennessee, that are at the center of this controversy. Prior to
January 2001, the Holders also owned and operated bowling alleys and/or entertainment
centers at these locations, “Hendersonville Fun Center and Circus World” and “Gallatin
(Bowling) Lanes.”
On January 26, 2001, the Holders entered into a contract to sell the businesses, but not
the real property, to S&S Family Entertainment, LLC (“S&S”), an owner and operator of
several bowling/entertainment centers. Pursuant to the contract of sale, the Holders agreed
to sell the Hendersonville Fun Center and Gallatin Lanes as well a vast array of assets that
included furniture, fixtures, and equipment. The contract of sale and subsequent Bills of Sale
incorporated “Asset Lists” for each property, which itemized the assets being sold.
The contract of sale also afforded S&S the right to inspect and test all heating,
plumbing, and HVAC systems that seller warranted would be in good working order at
closing. After hiring a firm to inspect both premises, S&S provided to the Holders copies of
professional inspections that reported several problems, including repairs to several heating
and air conditioning units. The Holders agreed to make the necessary repairs and, on
February 14, 2001, the parties agreed to an Amendment to the Contract to memorialize the
Holders’ agreement to make such repairs.
Concurrent with the execution of the contract of sale, the parties entered into two
separate but substantially similar ten-year commercial leases, one for the Hendersonville Fun
Center and one for Gallatin Lanes. The term of each lease ended on May 31, 2011. The
leases provide in pertinent part:
13. Lessee’s Repairs; Utilities
(a) Lessee will keep, at its own cost and expense, maintain and keep the
Demised Premises, including without limitation, all interior walls, doors, plate
glass, floors, ceilings, windows in the storefront, showcases, skylights,
electrical facilities and equipment, all plumbing, sewage, electrical, sprinkler
and HVAC systems (to the extent the same are located within the Demised
Premises or serve only the Demised Premises) and light fixtures, as clean and
in as good repair as same are at the Commencement Date or may be put in
during the continuance thereof, reasonable wear and tear. . .excepted[.]
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...
19. Surrender. At the expiration or sooner termination of the term of this
Lease, Lessee shall peaceably yield, deliver up and surrender to Lessor the
physical possession of the Demised Premises and all erections, improvements
and additions permanently attached thereto, in as good condition and repair as
the same shall be at the commencement of this Lease, loss by fire and/or
ordinary wear and tear excepted, and shall deliver all of the keys to the Lessor
or to Lessor’s agent. At or before the expiration or termination of the Lease,
Lessee may remove all the trade fixtures including, but not limited to, all assets
purchased under the Contract for Sale by and between Lessor and Lessee and
owned by Lessee that can be removed without irreparable injury to or
defacement of the Demised Premises, provided (a) all Rents have been paid in
full, (b) Lessee is not otherwise in default under this Lease, and (c) all damage
to the Demised Premises caused by such removal is properly repaired.
S&S occupied both premises until the expiration of the leases in May 2011. At the end
of the lease term, S&S vacated the premises and removed numerous fixtures and items
including, inter alia, (1) bathroom fixtures including sinks and mirrors, (2) an Ansul fire
suppression system and exhaust fans, (3) exit signs and emergency lights, (4) fire
extinguishers, (5) menu boards, (6) washer and dryer, and (7) bowling lane beds.
A dispute arose regarding the removal of these items as well as issues pertaining to
the alleged failure to maintain HVAC systems, electrical systems, and plumbing, and the
amount of damages sustained. Soon thereafter, on June 14, 2011, the Holders filed suit for
injunctive relief and damages claiming that S&S had removed items that were not part of the
sale of assets, failed to surrender the premises in as good condition and repair as at lease
commencement, failed to completely vacate the premises (failed to remove all of S&S’
property), and damaged property while moving out. The trial court issued a Temporary
Restraining Order the same day, ordering S&S to refrain from altering or destroying the items
in dispute.
S&S filed an answer asserting that it purchased all assets in dispute, thereby
precluding any award of damages to the Holders. In addition, S&S filed a counterclaim for
breach of contract, alleging that the Holders verbally agreed to sell the Hendersonville
shopping center to S&S for $3.85 million. Further, S&S asserts that it spent over $75,000 on
improvements to the property in reliance on that agreement; however, after making these
improvements, the Holders reneged on the agreement and refused to close the sale. Thus,
S&S asserts a claim to recover the value of the improvements.
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Following a bench trial, the court dismissed S&S’ counterclaim and awarded the
Holders damages in the amount of $54,123. The Holders were also awarded attorneys’ fees
in the amount of $21,500, based upon the attorney fee provision in the lease. S&S appealed
the above rulings. We determined that the trial court had not adjudicated all of the issues and
remanded for further proceedings. Following remand, the trial court resolved all remaining
issues and entered a Final Order on January 14, 2013, in which it awarded the Holders an
additional $2,400 in damages relating to Exit Signs/Emergency Lights, for a total award of
damages in the amount of $56,523.
The trial court also reaffirmed the award to the Holders of attorneys’ fees in the
amount of $21,500 based upon the attorney fee provision in the lease. As for S&S’
counterclaim for breach of an oral contract to sell the real property, the trial court dismissed
that claim finding: “No agreement was ever reached. No written agreement occurred.” This
appeal followed.
In this appeal, S&S contends the trial court erred in awarding any damages to the
Holders because the disputed assets which give rise to the award of damages were sold to
S&S pursuant to the contract of sale and bills of sale. It also contends the damages were
precluded by the leases because S&S was contractually excused from having to replace
capital assets and from having to surrender the premises in a condition better than they were
at the beginning of the leases. Alternatively, if this Court finds that a legal basis for damages
exists, S&S contends the Holders failed to prove their damages. As for the award of
attorneys’ fees, S&S contends the court erred by awarding attorneys’ fees in favor of the
Holders and that S&S is entitled to recover attorneys’ fees in the trial court and on appeal.
We shall discuss each issue in turn.
S TANDARD OF REVIEW
The matters at issue on appeal arise from three written agreements: a contract of sale
and two commercial leases. The interpretation of a written agreement is a question of law and
not of fact, Guiliano v. Cleo, Inc. 995 S.W.2d 88, 95 (Tenn. 1999); accordingly, our review
of the contract and leases is de novo with no presumption of correctness accorded to the
decisions of the courts below. Angus v. W. Heritage Ins. Co., 48 S.W.3d 728, 730 (Tenn. Ct.
App. 2000). With regard to findings of fact by a trial court, we review the record de novo and
presume that the findings of fact are correct unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d).
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A NALYSIS
I. T HE C ONTRACT OF S ALE: W HICH A SSETS W ERE S OLD TO S&S?
The Holders contend the contract for sale is unambiguous and the contract made it
clear that the assets sold to S&S were limited to those “more particularly described” on the
Asset Lists, which were attached to both the contract of sale and bills of sale, identified as
Exhibit B-1, for Hendersonville, and Exhibit B-2 for Gallatin. Further, the Holders insist that
none of the items/assets in dispute on appeal were listed in any of the sale documents; thus,
none of the items/assets in dispute were sold to S&S. Accordingly, the Holders assert they
owned the disputed assets and that S&S breached the contract as well as the leases when it
removed the bathroom fixtures, including the sinks, mirrors, and hand dryers, the Ansul fire
suppressant system and exhaust fans, exit signs and emergency lights, menu boards, fire
extinguishers, and a washer and dryer from the Hendersonville premises; and bowling lane
beds, an Ansul fire suppressant system and exhaust fans, and menu boards from the Gallatin
premises.
To the contrary, S&S contends it purchased the disputed assets. S&S relies, in part,
on a catch-all phrase found in the two “bowling equipment” subsections of the contract of
sale, specifically subsection (b) of paragraph 2.01, which pertains to Hendersonville, and
subsection (b) of paragraph 2.02, which pertains to Gallatin. Each subsection, as follows,
reads the same except for the name and address of the business and the value assigned to the
bowling equipment:
2.01.b. Bowling equipment including, but not limited to, pin setters, lanes and
automatic scorers, being more particularly described and on EXHIBIT B-1
attached hereto and made a part hereof, all other bowling equipment and all
other chattels and assets not otherwise specified herein and necessary to
operate Hendersonville Fun Center and Circus World, 460 W. Main Street,
Hendersonville, Tennessee 37075, in the manner heretofore operated and
valued by the Parties hereto in the amount of [$950,000.00].
2.02.b. Bowling equipment including, but not limited to, pin setters, lanes and
automatic scorers, being more particularly described and on EXHIBIT B-2
attached hereto and made a part hereof, all other bowling equipment and all
other chattels and assets not otherwise specified herein and necessary to
operate Gallatin Lanes, 683 S. Water Street, Gallatin, Tennessee 37066, in the
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manner heretofore operated and valued by the Parties hereto in the amount of
[$350,000.00].
(Emphasis added.)
The Holders insist these two subsections only apply to “bowling equipment” and not
to any of the other eight categories of assets listed within the contract, such as “furniture and
fixtures” or “kitchen and bar equipment, ice rink, theater and other equipment.” Further, the
Holders rely on the principle of contract interpretation that the “particular and specific
provisions of a contract prevail over general provisions.” See Lamar Adver. Co. v. By-Pass
Partners, 313 S.W.3d 779, 794-95 (Tenn. Ct. App. 2009).
The trial court agreed with the Holders, finding that S&S purchased only the assets
identified on the Asset Lists, described as Exhibits B-1 and B-2. The trial court also held that
if the asset was not identified on the Asset Lists, then S&S acquired no interest in the asset.
S&S contends this was error because, in addition to the assets specifically identified in the
Asset Lists, it also purchased “all other chattels and assets not otherwise specified herein and
necessary to operate” the businesses it purchased.
A. A LL O THER A SSETS N ECESSARY TO O PERATE THE B USINESSES
As we begin our analysis of this issue, we are mindful of the principle that the primary
objective in the construction of a contract is to discover the intention of the parties from a
consideration of the whole contract. Allmand v. Pavletic, 292 S.W.3d 618, 631 (Tenn. 2009).
When resolving disputes concerning contract interpretation, we are to ascertain the intention
of the parties based upon the “usual, natural, and ordinary meaning” of the contractual
language. Rainey v. Stansell, 836 S.W.2d 117, 119 (Tenn. Ct. App. 1992). “All provisions
in the contract should be construed in harmony with each other, if possible, to promote
consistency and to avoid repugnancy between the various provisions of a single contract.”
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999) (citing Rainey, 836 S.W.2d at 118-
19). “When ascertaining the intention of the parties to a contract, the court does not attempt
to determine the parties’ state of mind at the time the contract was executed, but rather their
intentions as actually embodied and expressed in the contract as written.” Rainey, 836
S.W.2d at 118-19 (citing Petty v. Sloan, 277 S.W.2d 355 (Tenn. 1955); Sutton v. First Nat’l
Bank of Crossville, 620 S.W.2d 526 (Tenn. App. 1981)).
In interpreting contractual language, courts look to the plain meaning of the words in
the document to ascertain the parties’ intent. Planters Gin Co. v. Fed. Compress &
Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002). The initial task in construing the
contract at issue is to determine whether the language is ambiguous. Id. at 890. If the
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language is clear and unambiguous, the literal meaning controls the outcome of the dispute.
Id. If, however, the words in a contract are susceptible to more than one reasonable
interpretation, the parties’ intent cannot be determined by a literal interpretation of the
language. Id. Contractual language “is ambiguous only when it is of uncertain meaning and
may fairly be understood in more ways than one.” Id. (citing Empress Health & Beauty Spa,
Inc. v. Turner, 503 S.W.2d 188, 190-91 (Tenn.1973)). Where there is no ambiguity in the
contract language, neither party is to be favored in the construction of the contract. Ballard
v. N. Am. Life & Cas. Co., 667 S.W.2d 79, 83 (Tenn. Ct. App. 1983) (citing Brown v.
Tennessee Automobile Ins. Co., 237 S.W.2d 553 (Tenn. 1951).
S&S contends it purchased “all other chattels and assets not otherwise specified herein
and necessary to operate [the businesses in the manner heretofore operated],” as stated in
subsections 2.01(b) and 2.02(b) regarding bowling equipment. Thus, it contends the trial
court erred in finding that it only purchased assets specifically identified in the Asset Lists.
The contract of sale and the Asset Lists specify several general categories of assets
in 2.01 and 2.02 in addition to the category of Bowling Equipment. The additional categories
include the following: Kitchen/Bar/Circus World Equipment; Furniture and Fixtures;
Computers and Printers; Software; Vehicles; and Customer Lists. Notably, none of these
other subsections include the catch-all phrase “and all other chattels and assets not otherwise
specified herein and necessary to operate [the businesses in the manner heretofore operated].”
As noted above, in interpreting contractual language, we look to the plain meaning
of the words in the contract to ascertain the parties’ intent. Planters Gin Co., 78 S.W.3d at
889. The catch-all phrase only appears in one category of assets, that for bowling equipment.
Thus, by looking to the plain meaning of the words used by the parties, it is easy to conclude
that the catch-all phrase only applies to the one category where it appears, that being the
category of bowling equipment.
We have identified only one asset in dispute that can conceivably arise from the catch-
all provision in 2.02(b): the bowling alley “lane beds” located at Gallatin Lanes, which we
discuss in detail later.
We now turn our attention to the ownership of two assets that were not resolved by
the foregoing discussion: the bathroom fixtures in Hendersonville and the “lane beds” in
Gallatin, both of which were identified on Exhibit B-1 and Exhibit B-2, respectively.
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B. B ATHROOM F IXTURES AND A SSORTED C LEANING S UPPLIES
The seventeen bathrooms at the Hendersonville center are among hundreds of
specifically identified assets or items listed under the asset category “Kitchen/Bar/Circus
World Equipment” in Exhibit B-1 of the Asset List. A small sampling of the numerous items
listed under the “FOOD AREA” subcategory of this section include:
6 Two Seat Tables
15 Four Seat Tables
1 Humugus [sic] Soft Play Unit (3 Story)
2 All Play Unit
2 Shoe Rack
3 Benches
1 Ball Wash System (Soft Play)
17 Bathrooms (Men’s & Women’s)
Assorted Cleaning Supplies
23 Blue Chairs
1 Skate Sharpener
250 Pair of Ice Skates
1 Microphone
1 Zamboni
The assets at issue here are the bathrooms, which were listed in Exhibit B-1 as
follows:
17 Bathrooms (Men’s & Women’s)
Assorted Cleaning Supplies
In its Final Order, the trial court found that S&S only purchased the assorted cleaning
supplies that were located in the bathrooms at the time of purchase and that S&S had not
purchased the bathroom fixtures. Specifically, the court stated:
Bathroom fixtures - The asset list refers to bathrooms assorted cleaning
supplies. [The Holders are] found to be the owners of all bathroom fixtures
including commodes, sink, mirrors, stalls and hand drying equipment.1
1
The trial court also made findings regarding the damages; we omitted the trial court’s award of
damages in this section because we discuss damages in detail in a subsequent section.
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S&S insists it purchased “the bathrooms,” meaning anything and everything in the 17
bathrooms and, therefore, it had the right to remove what it purchased from the Holders at
the end of the leases. When S&S vacated the premises, S&S removed all of the items listed
above as well as toilet parts, bathroom sinks, mirrors, stall partitions, and hand dryers from
the bathrooms. Not surprisingly, it is disputed whether the parties intended to include
bathroom fixtures, particularly the toilet parts, sinks, mirrors, stall partitions, and hand dryers,
in the sale of assets to S&S.
The Holders insist “the bathrooms” were not sold, only assorted cleaning supplies in
the bathrooms. The Holders also assert that S&S not only took property belonging to the
Holders for which they are entitled to damages, they also assert that S&S damaged the
premises by removing the fixtures from the walls in violation of the leases. Paragraph 19 of
both leases provide that S&S was not permitted to remove assets if their removal caused
irreparable injury to or defacement of the leased premises.
The trial court held the language used by the parties regarding “the bathrooms” and
“assorted cleaning supplies” created an ambiguity; thus, the parties were permitted to
introduce extrinsic evidence to aid the court in ascertaining the parties’ intent. See Allstate
Ins. Co. v. Watson, 195 S.W.3d 609, 611-12 (Tenn. 2006).
S&S introduced the deposition of Sandy Hansell, a national broker of bowling centers
and the broker who negotiated the deal between S&S and the Holders, to support its claim.
Mr. Hansell attested to the custom and practice of buying and selling bowling centers, stating
that “the prevailing standard in our industry. . . is that when a business like this is sold,
everything except the land and building is conveyed to the buyer because he needs everything
that’s there, every asset, chattel, item and so on, to operate the business.” Mr. Hansell
provided a letter from him to Mr. Holder advising him that, “If you have any personal assets
in either center which would not be included in the sale, either remove them before [the
potential purchaser] visits or be sure to point them out during the visit.”
We note, however, as the trial court obviously did, that Mr. Hansell’s testimony and
the letter he introduced pertains to personal assets, which can be distinguished from fixtures.
A fixture is “an article in the nature of personal property which has been so annexed to the
realty that it is regarded as part of the land.” Keenan v. Fodor, 2012 WL 3090303, at *6
(Tenn. Ct. App. July 30, 2012) (quoting Black’s Law Dictionary (5th Ed.)). In general,
everything that is affixed to the freehold becomes a part of the freehold. Green v. Harper,
700 S.W.2d 565, 567 (Tenn. Ct. App. 1985). However, there is an exception between
landlord and tenant regarding “trade fixtures.” Id. Those fixtures that are made for the
purpose of carrying on a man’s trade may be removed when the removal can be affected
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without material injury to the freehold. Id. (citing Cubbins v. Ayres, 72 Tenn. 329, 331
(1880)).
In Green v. Harper, the lessor of property sued the lessee who removed certain
additions and improvements the lessee had made to the leased premises, where the lessee
operated a drive-in movie theater. On appeal, we held that the theater screen, theater marquee
and car speakers, which the lessee had purchased and installed, were trade fixtures even
though they were attached to the premises; thus, these trade fixtures could be removed by
lessee. However, we held that light fixtures, commodes, and plumbing fixtures, which were
attached to and a part of the freehold estate, were not fixtures that were peculiar to the
operation of a drive-in theater; thus, they were fixtures that could not be removed. Id.
S&S provided no evidence upon which a reasonable person could find that the toilet
parts, sinks, mirrors, stall partitions, and hand dryers, all of which were affixed to the
building, were unique to the business operated by S&S. Thus, there is no evidence upon
which to find that any of these bathroom items were trade fixtures. Because bathroom
fixtures are necessary to operate any business and are not particular to the bowling industry,
we find that the bathroom fixtures were not part of the sale to S&S.2
The trial court agreed with the Holders, determining that the Asset List did not
transfer “the bathrooms,” only the cleaning supplies in the bathrooms. We additionally find
no merit to the assertion by S&S that toilet parts, sinks, mirrors, stall partitions, or hand
dryers were unique to the operation of the Hendersonville Fun Center and Circus World.
Accordingly, they are fixtures which remain with the freehold premises, not trade fixtures
that may be removed by the lessee.
C. G ALLATIN B OWLING “L ANE B EDS”
Also at issue is the ownership of “lane beds” at Gallatin Lanes. Lane beds, also known
as “particle boards,” are the underlying foundation of bowling lanes.
2
The foregoing notwithstanding, S&S would not have been permitted to remove some of these assets
because doing so would have caused “irreparable injury to or defacement of the Demised Premises,” which
would have been a breach of the leases. Paragraph 19 of both leases provides in pertinent part:
At or before the expiration or termination of the Lease, Lessee may remove all the trade
fixtures including, but not limited to, all assets purchased under the Contract for Sale by and
between Lessor and Lessee and owned by Lessee that can be removed without irreparable
injury to or defacement of the Demised Premises[.] (Emphasis added.)
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During the process of vacating the premises at the end of the lease, S&S had removed
the bowling lanes from the Gallatin center, including the top part of the lane, the so-called
“synthetic lane,” and the underlying foundation, the “lane beds.” When Mr. Holder learned
that S&S had removed the lane beds, he contacted Larry Schmittou (“Mr. Schmittou”), the
president of S&S, demanding that the lane beds be returned but not reinstalled. S&S
complied with the request and simply placed the lane beds back into the lanes.
At trial, Mr. Schmittou admitted on cross-examination by the Holders’ attorney that
removing the lane beds, the particle boards, was a mistake:
Q. Okay. When the particle boards were taken out of the Gallatin bowling
center, put out in your parking lot, to be packed up to take off, I
assume, you came up and told Mr. Holder you made a mistake?
A. Yes, sir.
Q. And you put them all back in, or had them put back in?
A. Yes, sir.
The trial judge found that S&S admitted it should not have removed the particle
boards, the lane beds. This finding is supported by the admission of the president of S&S that
it made a mistake in removing the lane beds. Because the evidence does not preponderate
against the trial court’s finding, we affirm the trial court’s holding that the lane beds were not
sold to S&S.
Now that we have determined that S&S did not purchase any of the disputed assets,
we turn our attention to the issue of damages, some of which arise from the wrongful
removal of the disputed assets and others which arise from the alleged failure of S&S to
fulfill its duties and responsibilities under the leases.
II. R IGHTS AND R ESPONSIBILITIES U NDER THE L EASE A GREEMENTS
The Holders contend S&S breached two major provisions of the leases. They contend
S&S failed to maintain and keep all plumbing, sewage, electrical, HVAC systems, and light
fixtures in as good repair as they were at the commencement of the lease, ordinary wear and
tear excepted. They also contend S&S failed to completely vacate the premises by failing to
remove all of its assets at the end of the lease, including very large items such as a Dynamax
Motion Theater (“Dynamax”), a refrigeration unit for the ice skating rink, and an emergency
generator.
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S&S counters, insisting that it fulfilled all of its affirmative responsibilities under the
leases. Additionally, S&S contends the lease excused it from having to remove its assets from
the premises at the end of the lease.
A. F AILURE TO M AINTAIN AND R EPAIR THE P REMISES
During the lease term, S&S was required to maintain and keep, at its own cost and
expense, all plumbing, sewage, electrical, HVAC systems, and light fixtures “in as good
repair as same are at the Commencement Date.” Upon the expiration of the lease term, S&S
was required to surrender the premises “in as good condition and repair as the same shall be
at the commencement of this Lease . . . ordinary wear and tear excepted.”
(1) The HVAC Units
The items in dispute that come within the purview of these affirmative responsibilities
include maintenance of heating, ventilating, and air conditioning units. Shortly before the
expiration of the lease in 2011, the Holders hired Michael Derryberry to inspect the
properties. He identified several HVAC units that needed repairs and two units that were not
working, specifically a 3-ton unit that was without power and a 25-ton unit that was missing
parts; it had apparently been dismantled for parts to use on other units. S&S repaired all but
the two units to the satisfaction of the Holders; thus, when S&S surrendered the premises,
neither the 3-ton unit nor the 25-ton unit worked.
At trial, S&S argued that the two HVAC units were not in working order at the time
of sale; thus, they were in the same condition at the end of the lease. For the same reason,
S&S also insists it had no obligation to put them in working order.3
In furtherance of its argument, S&S points to a pre-closing report by Republic
Plumbing Heating & Cooling, which noted that three of the eighteen HVAC units in
Hendersonville were not running. The report described the three units in need of repair,
including one unit that “has been robbed of several key parts to fix other units and is not
running and would half [sic] to be replaced or rebuilt to make it operable.” This statement,
however, had a line drawn through it, as if to remove it from the list.
3
S&S also argues that it is not responsible for the replacement of capital items. However, the terms
of the lease are clear in that “Lessee will keep, at its own cost and expense, maintain and keep the Demised
Premises, including without limitation, all . . . HVAC systems . . . as clean and in as good repair as same are
at the Commencement Date or may be put in during the continuance thereof, reasonable wear and tear . . .
excepted[.]”
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Mr. Schmittou testified that the unit that was not working was scratched off the report
to confirm that S&S did not have to maintain or repair the unit. In addition, Boyd Cantrell,
the head maintenance man for S&S who was previously employed by the Holders, testified
that two units were not working in Hendersonville before the beginning of the lease. He
identified them as the 25-ton unit over the ice rink that “appeared dismantled,” and the 3-ton
unit that was not connected to power; however, he acknowledged that he could not say if the
Holders had repaired these units at lease commencement. Henry Burch, an owner of a
refrigeration and air conditioning company, as well as an employee of S&S, testified that he
was on the Hendersonville roof in 2003 and noticed that the 25-ton unit had been abandoned,
and that the 3-ton unit was not connected to a power line. However, he too was not sure if
these units had been in this condition at lease commencement in 2001.
The Holders insist that all the units were in good working order at the beginning of
the lease. Noting that S&S had the opportunity to inspect the premises and bring any
concerns to the Holders prior to closing, Mrs. Holder testified that during the 2001 inspection
period, S&S notified them of the two units which needed repair, and that the Holders fixed
them before closing.
In its Final Order, the trial court noted that the contract of sale provided for an
inspection period in which the purchaser “shall have the right to inspect . . . and test all
heating, plumbing and HVAC systems which SELLER shall warrant will be in good working
order at closing.” In addition, the contract also provided that:
5.03. All heating, air conditioning, plumbing and other electrical systems for
the Businesses and Real Properties shall be in good working order at closing.
Moreover, S&S served notice upon the Holders in conformance with the inspection
period requirements, showing the repairs that needed to be done, including the repair of
several heating and air conditioning units. The First Amendment to the Contract of Sale
reveals that the Holders agreed to perform the repairs outlined in the proposal from Republic
Plumbing, including a large HVAC unit that had been stripped of parts, and the Holders
testified the repairs were made to the units.
The trial court made the following findings regarding the condition of the two units
at the commencement of the lease in 2001:
The HVAC units were in good working order and accepted as such by [S&S]
at lease commencement. The First Amendment to Contract of Sale occurred
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in 2011[sic].4 An inspection prior to closing indicated at Hendersonville a roof
top 25-ton unit was missing parts and a roof top 3-ton unit had no power.
Under the First Amendment, the Parties agreed [the Holders] would repair
both units before closing. [Mr. Holder] testified he repaired and restored both
units. The 25-ton unit was for the ice skating rink and the 3-ton unit was for
the office. [Mr. Schmittou] claimed he and [Mr. Holder] agreed to “abandon
both units.” [S&S] admits using the ice skating rink served by the 25-ton unit
for a few years after the lease began. [S&S] then replaced the ice rink with a
roller skating rink. The Court finds the parts were removed by [S&S’] repair
person after [S&S’] need for the Ice Rink unit ceased similar to the closing and
parts removed from the bathrooms. At lease surrender, the 3-ton unit was
without power and the 25-ton unit had missing parts.
Although the facts regarding the condition of the two units at the commencement of
the lease are disputed, the evidence does not preponderate against the trial court’s findings
of fact that the two HVAC units at issue were in good working order and accepted as such
by S&S at lease commencement. See Tenn. R. App. P. 13(d). Thus, as the lease required,
S&S had the duty to maintain and repair all HVAC units on the premises and return the
properties in the same condition as they were at the beginning of the lease, excluding
reasonable wear and tear, the latter of which would require consideration of the age of the
units, which the trial court did in awarding damages for S&S’ failure to reasonably maintain
the two units.
(2) The Bathrooms
We previously determined that S&S did not purchase the bathroom fixtures, sinks,
mirrors, hand dryers, and stalls, and it is undisputed that S&S had the affirmative duty to
maintain and keep all plumbing, sewage, electrical, and other fixtures “in as good repair as
same are at the Commencement Date.” This affirmative duty obviously includes the
bathrooms.
Mr. Holder testified that two of the Hendersonville bathrooms5 were totally destroyed
and gutted, resulting in missing parts and damage to the stall doors and ceilings. Mr. Holder
4
The First Amendment to the Contract was entered between the parties in 2001.
5
Mr. Schmittou and several of his employees testified that these two bathrooms in Hendersonville
were near the front of the building and had been closed up after several instances of vandalism. The
testimony revealed that these bathrooms were not used during the majority of the lease, as they were
padlocked near the start of the lease-term.
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stated that S&S used parts from these bathrooms to fix up other bathrooms in the center. In
addition, Mrs. Holder testified that stall doors, sinks, mirrors, and dispensers were missing
with sewage left in toilets. She also testified that some of the bathrooms in Gallatin had
damaged doors that needed to be replaced.
Darrell Terry of Terry’s Plumbing Service, who had twenty-five years of experience
in plumbing repair work, testified that he examined all of the bathrooms in both properties
and found that all of the bathrooms were neglected and that standard maintenance had not
taken place throughout the building.
The trial judge held, and it is undisputed, that during the lease, S&S closed two of the
Hendersonville bathrooms and took parts from the closed bathrooms to repair other
bathrooms. The trial court also found that S&S failed to maintain and repair the other
restrooms and plumbing throughout the building. The evidence in the record does not
preponderate against these findings.
(3) The Ansul Fire Suppressant System & Exhaust Fans
The Ansul fire suppression systems are located in the kitchen at both facilities. As
witnesses for both parties explained, the Ansul system is a fire suppression system that is
used in commercial kitchens; it is attached to the wall and connects to the hoods covering the
grill. The exhaust fans, which are located on the roof, pull heat and smoke away from the
grill and assist the Ansul system in preventing or minimizing fires.
We previously determined that S&S did not purchase the Ansul systems or the exhaust
fans associated therewith; thus, S&S had the affirmative duty to maintain and keep this
equipment in as good repair as it was at the commencement of the lease. However, it is
undisputed that S&S removed the Ansul systems and exhaust fans in both properties when
it vacated the premises.
Therefore, upon the expiration of the lease term, S&S breached both leases by failing
to surrender the premises, specifically the Ansul system and the exhaust fans, in as good
condition and repair as at the commencement of the lease.
(4) Exit Signs & Emergency Lights
We previously determined that S&S did not purchase the exit signs and emergency
lights. Moreover, it is undisputed that S&S removed these items when it vacated the
premises. Thus, S&S breached the lease by not surrendering the premises in as good
condition as at the commencement of the lease.
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B. F AILURE TO C OMPLETELY V ACATE THE P REMISES
The Holders allege that S&S breached the leases when it failed to completely vacate
the premises by not removing all of its assets at the end of the lease, more specifically the
Dynamax, the refrigeration unit for the ice skating rink, and an emergency generator. The
Holders contend they sustained damages due to this breach because they incurred expenses
to remove S&S’ property.
The trial court awarded the Holders damages for S&S’ failure to remove all of its
assets, including $5,000 in damages for the cost of removing the Dynamax; $10,000 in
damages for the removal of the refrigeration unit; and $650 for the repair of the emergency
generator.
To determine S&S’ duties to remove these items at the end of the lease, we must
interpret the leases at issue. The interpretation of a contract is a question of law, Guiliano,
995 S.W.2d at 95, and issues as to interpretation and application of unambiguous contracts
are likewise issues of law, the determination of which enjoys no presumption of correctness
on de novo appellate review. Doe, 46 S.W.3d at 196. Therefore, the trial court’s
interpretation of a contract is not entitled to a presumption of correctness under Tenn. R.
App. P. 13(d) on appeal. Angus, 48 S.W.3d at 730.
It is undisputed that S&S purchased the items at issue from the Holders; thus, S&S
owned them and had the right to remove them. The question on appeal, however, is whether
S&S had a duty to remove these items. The answer to this question is found in paragraph 19
in the leases.
Paragraph 19 of both leases provides:
At or before the expiration or termination of the Lease, Lessee may remove all
the trade fixtures including, but not limited to, all assets purchased under the
Contract for Sale by and between Lessor and Lessee and owned by Lessee that
can be removed without irreparable injury to or defacement of the Demised
Premises[.]
(Emphasis added.)
Paragraph 19 is unambiguous and clearly states that S&S may remove the trade
fixtures and assets it purchased from the Holders; moreover, nothing in the leases requires
S&S to remove its trade fixtures or assets at the conclusion of the leases. Thus, S&S, as
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lessee, had the option to either remove these items or leave them. It chose to leave them, and
we find no basis upon which to find that doing so constituted a breach of the leases or the
contract of sale.
Because S&S had no affirmative duty to remove the trade fixtures or assets it
purchased, there is no basis upon which to award damages against S&S for failing to remove
the Dynamax, the refrigeration unit, and the emergency generator.
III. D AMAGES
The trial court awarded the following categories of damages:
Generator Repair - $ 650
Exit Signs/Emergency Lights - $ 2,400
Bowling Lane Particle Board - $ 17,262
Plumbing repairs to restrooms - $ 11,491
Removal of Ice Rink Refrigeration - $ 10,000
Removal of Dynamax - $ 5,000
Electrical Repair of Kitchen Roof Exhaust - $ 717
Ansul System Repair - $ 2,403
25-ton HVAC - Replace $ 6,600
In the foregoing discussion, we determined that S&S did not breach the leases or the
contract for sale by failing to remove all of the trade fixtures and assets it purchased from the
Holders. There being no breach of duty, we, therefore, reverse the award of damages for the
Holders’ cost to remove the Dynamax ($5,000) and the ice rink refrigeration ($10,000) in the
aggregate amount of $15,000. We also reverse the award of $650 for repair to the generator.
It is undisputed that S&S purchased the generator from the Holders; thus, S&S had no duty
to repair what it owned. Moreover, we determined that S&S had no duty to remove what it
owned at the end of the lease.
A. P ROOF OF D AMAGES
In addition to contending it did not breach any duty owed to the Holders, S&S
contends, in the alternative, that if it is liable for any breach, the Holders are not entitled to
damages because they failed to prove their damages.
Damages for breach of contract or lease are permissible even when the plaintiff is
unable to prove the exact amount of those damages. BancorpSouth Bank, Inc. v. Hatchel, 223
S.W.3d 223, 230 (Tenn. Ct. App. 2006) (citing Provident Life & Accident Ins. Co. v. Globe
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Indemnity Co., 3 S.W.2d 1057, 1058 (Tenn. 1928)). “All that an award for damages requires
is proof of damages within a reasonable degree of certainty.” Redbud Coop. Corp. v. Clayton,
700 S.W.2d 551, 561 (Tenn. Ct. App. 1985) (citing Wilson v. Farmers Chem. Ass’n, 444
S.W.2d 185, 189 (Tenn. Ct. App. 1969); Acuff v. Vinsant, 443 S.W.2d 669, 674 (Tenn. Ct.
App. 1969)).
“The law does not require exactness of computation in suits that involve questions of
damages growing out of contract or tort.” St. John v. Bratton, 150 S.W.2d 727, 729 (Tenn.
Ct. App. 1941). “While the amount of damages to be awarded in a given case is not
controlled by fixed rules of law or mathematical formulas . . . the evidence upon which a
party relies to prove damages must be sufficiently certain to enable the trier of fact, using its
discretion, to make a fair and reasonable assessment of damages.” BancorpSouth Bank, 223
S.W.3d at 230 (citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999);
Wilson, 444 S.W.2d at 189).
(1) Gallatin Bowling “Lane Beds”
S&S disputes the award of damages resulting from its removal of the “lane beds” at
the Gallatin premises. At the end of the lease, S&S removed the synthetic bowling lanes, the
top part of the lanes, as well as the underlying foundation, the lane beds. The trial court found
that S&S did not purchase the lane beds and that it breached the lease by removing them;
accordingly, the trial court awarded damages in the amount of $17,262 to the Holders for the
repair and replacement of the lane beds that were removed. S&S contends the Holders failed
to prove damages with respect to the lane beds.
Mr. Holder, over the objection of S&S, testified to an amount purportedly charged by
a third-party to reinstall the lane beds. The third-party’s invoice was never admitted into
evidence, and S&S argues that in order to prove damages, the Holders had to submit expert
testimony regarding the necessity and reasonable cost of work to reinstall the lane beds,
relying on Nagle v. Wells, 1990 WL 160909 (Tenn. Ct. App. Oct. 25, 1990).
The trial court disagreed, finding it was undisputed that S&S breached the contract
of sale and lease by removing the lane beds and that it was necessary for the Holders to hire
someone to reinstall the lane beds. The court, as the evidentiary gate-keeper, also found that
Mr. Holder had been in the bowling industry since 1975, and that he was knowledgeable of
the cost of repairs in this business. We have determined that the evidence does not
preponderate against the trial court’s findings, and, therefore, we affirm the trial court’s
award of $17,262 to the Holders.
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(2) The HVAC Units
The only witness to testify regarding the damage to the two HVAC units was Michael
Derryberry, who inspected the properties for the Holders shortly before the end of the lease;
he testified as an expert witness at trial. Mr. Derryberry stated that, due to the age of these
two units, they should be replaced rather than repaired, and the cost to replace the 3-ton and
25-ton units would be $23,462.
In determining the damages for the two HVAC units, the trial court focused on Mr.
Derryberry’s testimony regarding the life expectancy of new HVAC units, which would be
10 to 15 years, and the age of the units on the property. Based upon these facts, the court
determined that requiring S&S to provide new units would put the Holders in a better
position than before the breach, which was contrary to the law of damages; therefore, the
court elected to base its award on a depreciated value. Accordingly, the trial court awarded
$6,600 in damages, which was slightly less than 30% of the cost to replace the units with new
equipment.
Admittedly, an award of a lesser amount for the damages the Holders sustained due
to S&S failure to maintain these two units would also be within the range of reasonableness;
nevertheless, we cannot say that the amount awarded, which included a depreciation of more
than 70% of the cost of replacement, was unreasonable under the circumstances.
Accordingly, we affirm the award of $6,600 for failure to surrender the two HVAC units at
the expiration of the lease in as good a condition as they were at the commencement of the
lease, ordinary wear and tear excepted.
(3) Ansul Fire Suppressant System and Exhaust Fans
It is undisputed S&S damaged the premises by cutting wires and removing the Ansul
system and exhaust fans; nevertheless, S&S argues that there is no admissible proof
regarding the reasonable cost of replacing the Ansul systems, the exhaust fans and repair of
the wiring.
Chris Searcey, the Holders’ electrical contractor, testified that S&S damaged the
Holders’ property due to the manner in which it cut electrical wires instead of properly
disconnecting the wires to the Ansul system and exhaust fans on the roof. Mr. Searcey
testified that he had to replace and reconnect the wires to the exhaust fans, charging the
Holders $717 for electrical repair. Mr. Holder also testified that when S&S removed the
Ansul systems from both properties, it destroyed the wiring, and, as a result, he paid $2,403
to replace the Ansul systems in addition to what he paid Mr. Searcey.
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S&S argues that there is no admissible proof regarding the reasonable cost of
replacing the Ansul systems. S&S contends that Mr. Holder’s testimony that he paid a certain
amount to replace the Ansul system is not sufficient to prove the reasonable cost of replacing
it.
As previously discussed, the trial court found Mr. Holder was competent to testify
regarding the costs of repairs necessitated by S&S’ actions. Therefore, we find the evidence
sufficient to affirm the $717 award for electrical repairs to the exhaust fans and the award
of $2,403 for replacement of the Ansul systems.
(4) Exit Signs and Emergency Lights
Following remand from the first appeal, which was necessary because not all issues
had been addressed prior to the first appeal, the trial court awarded $2,400 in damages to the
Holders for repairs to sixteen exit signs and six emergency lights. In this second appeal, S&S
contends the award is error, arguing that it constitutes awarding a new category of damages
that was outside the scope of the limited remand to the trial judge. We respectfully disagree.
We remanded the case for the purpose of affording the trial court, and the parties, the
opportunity to address and resolve all issues. In the second final order that followed, which
is the subject of this appeal, the trial court explained that the $2,400 award of damages was
inadvertently omitted from the first order due to a “failure in proof reading.” Moreover, the
record reveals that the Holders’ expert electrical contractor testified at trial that he repaired
the wiring for the exit signs and emergency lights for a fee of $2,400. He also testified that
the repairs were needed due to the manner in which the signs and lights had been removed.
We have determined that the trial court did not go outside of the scope of remand, and
there is competent evidence to support the award. We, therefore, affirm the award of $2,400
to the Holders for repair and replacement of exit signs and emergency lights.
(5) Damage to the Bathrooms
The trial court awarded the Holders $11,491 in damages for repair and replacement
of the bathrooms. The award was based primarily on the testimony of Darrell Terry of
Terry’s Plumbing Service, who testified that he was asked by the Holders to examine the
bathrooms in both properties and give an estimate for anything that needed repair. He
testified that the bathrooms appeared to be neglected and that standard maintenance had not
taken place throughout the buildings. Mr. Terry’s estimate, totaling $11,491 for parts and
labor for both leased premises, was introduced as evidence.
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As stated previously, Mr. Holder testified that two of the Hendersonville bathrooms
were totally destroyed, parts were missing, and there was significant damage to the stall
doors and ceilings. Mrs. Holder also testified, she stated that stall doors, sinks, mirrors, stall
partitions, and dispensers were missing from these two bathrooms. She also testified that the
rest of the bathrooms in the Hendersonville premises were damaged. Furthermore, she stated
that some of the bathrooms in Gallatin had damaged doors that needed to be replaced. Both
testified that the restrooms were inoperable and that S&S failed to maintain and repair the
plumbing.
S&S argues that the damages claimed should be considered reasonable wear and tear
because Mr. Terry stated that many of the items listed in his estimate could be subject to
ordinary wear and tear; however, Mr. Terry also testified that the bathrooms needed repair
due to a failure to repair and maintain during the lease term.
According to the lease, S&S was required to maintain and keep “all plumbing” in “as
clean and in as good repair as same are [at the beginning of the lease],” and the evidence
does not preponderate against the trial court’s findings that S&S failed to fulfill this
obligation. There being no other credible evidence of the amount of damages sustained due
to S&S’ breach of the lease, we affirm the award of $11,491 in damages for repairs to the
bathrooms.
(6) The Dynamax, the Refrigeration Unit, and the Generator
We previously determined that there was no basis upon which to award damages
against S&S for failing to remove the Dynamax, the refrigeration unit, and the emergency
generator. We, therefore, reverse the award of $5,000 in damages for the cost of removing
the Dynamax; $10,000 in damages for the removal of the refrigeration unit; and $650 for the
repair of the emergency generator.
III. A TTORNEYS’ F EES
The parties dispute whether each is entitled to attorneys’ fees according to the lease
and contract terms; the trial court awarded the Holders reasonable attorneys’ fees in the
amount of $21,500, based on the terms of the lease.
To determine whether either party is entitled to attorney’s fees, we must interpret the
contract and lease at issue. The interpretation of a contract is a question of law, Guiliano,
995 S.W.2d at 95, and issues as to interpretation and application of unambiguous contracts
enjoy no presumption of correctness on de novo appellate review. Doe, 46 S.W.3d at 196.
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The Holders assert that they are entitled to an award of reasonable attorneys’ fees
pursuant to Paragraph 39 of the lease because they brought suit in order to enforce
compliance with the lease agreements. That provision provides:
39. Costs and Expenses. In the event it becomes necessary for Lessor to
employ an attorney or take any other action to enforce collection of the Rent
or to enforce compliance with any of the covenants or agreements of Lessee
herein contained, Lessee shall be liable for all costs and expenses, including
without limitation reasonable attorney’s fees, costs and expenses incurred by
the Lessor in connection herewith.
Specifically, the Holders argue that S&S did not surrender the property in as good a condition
and repair as existed at lease commencement, and thus, S&S is liable for the costs incurred
by the Holders to make those repairs, as well as the Holders’ attorney’s fees incurred in
enforcing compliance.
On the other hand, S&S argues that the key issue was whether the disputed assets
belonged to S&S, which was governed by the contract for sale, and not the leases. S&S
contends that it was entitled to recover attorneys’ fees under certain provisions of the contract
for sale, which obligated the sellers to indemnify the purchaser, including reasonable
attorney’s fees, from any breach of the representations or warranties contained in the
agreement. We respectfully disagree on both counts.
The Holders prevailed on the ownership of all assets at issue; thus, they were the
prevailing parties under the contract of sale. Moreover, although S&S prevailed on some
issues arising under the leases, the acts and omissions of S&S substantially damaged the
leased premises at both locations, and the Holders prevailed on most issues.
Because it was both necessary and reasonable for the Holders to hire legal counsel to
enforce and protect their respective rights under the contract of sale and leases, they were
entitled to an award of attorney’s fees. Finding the Holders were contractually entitled to
recover their attorney’s fees, and finding no error with the amount awarded, we affirm the
trial court’s award of attorney’s fees in the amount of $21,500 to the Holders.
As for attorneys’ fees incurred on appeal, because each party has prevailed on
substantive issues in this appeal, we have determined that neither party is entitled to recover
attorneys’ fees incurred in this appeal.
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IV. S&S’ C OUNTERCLAIM
In its Answer and Counterclaim, S&S alleged, inter alia, breach of oral contract to sell
real property. Specifically, S&S asserts that the parties reached an agreement on all material
terms of a sale to S&S of the Hendersonville shopping center. In reliance on that agreement,
S&S made substantial improvements to the center in February of 2011, including spending
$27,400 to install new HVAC equipment and $33,850 to install a new roller skating rink.
S&S contends that these expenditures would not have been made in the absence of an
agreement with the Holders to sell the shopping center to S&S. The trial court dismissed the
Counterclaim finding that no agreement was ever reached.
On appeal, S&S contends that it is entitled to recover the expenses it incurred in
reasonable reliance upon the Holders’ promise to sell the Hendersonville shopping center.
S&S relies on the testimony by Mr. Schmittou that an agreement of all material terms had
been reached; Mr. Schmittou testified that the parties had agreed to a purchase price of
$3,850,000, with the condition that S&S would continue to rent the Gallatin premises for five
additional years at the current rental price. In addition, S&S introduced an email from the
Holders to Mr. Schmittou, dated May 3, 2011. In that email the Holders wrote, “We will sale
[sic] you Hendersonville for Four Millions [sic] Dollars and we will hold a note for One
Million Dollars at 7% under the same payback schedule as your proposal and renew the
Gallatin Lease for five years at $8,000 per month.” Mr. Schmittou alleges that the Holders
were reneging on the terms they previously agreed upon in their email. To the contrary, the
Holders admit negotiating the potential sale, but vehemently deny any agreement was ever
reached.
The trial court made the finding of fact that no agreement had been reached, oral or
written. The only evidence of an agreement was that of Mr. Schmittou; however, the Holders
denied that any agreement had been reached. The applicable standard of review requires us
to presume the trial judge’s findings of fact are correct unless the evidence preponderates
otherwise. The evidence in this record does not preponderate against the trial court’s finding;
thus, we affirm the trial court’s finding that no agreement was ever reached. See Tenn. R.
App. P. 13(d).
In the alternative, S&S argues that it is entitled to recover the cost of the new HVAC
equipment that it installed under quasi-contract and quantum meruit. We note, however, these
issues were not raised in the pleadings or at trial and that S&S is attempting to raise these
issues for the first time on appeal. Our courts have consistently held that issues not raised
before the trial court are waived and will not be entertained on appeal. Barnhill v. Barnhill,
826 S.W.2d 443, 458 (Tenn. Ct. App. 1991); see also Pearman v. Pearman, 781 S.W.2d 585,
587-88 (Tenn. Ct. App. 1989); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).
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For the foregoing reasons, we affirm the dismissal of S&S’ Counterclaim.
I N C ONCLUSION
The judgment of the trial court is affirmed in part, reversed in part, and this matter is
remanded for entry of judgment consistent with this opinion. One-half of the costs of appeal
are assessed against the appellant and one-half against the appellees.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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