Krieger v. Elkins

• Decision Date: 03 December 1980
• Docket Number: No. 12104,12104
• Citation: 96 Nev. 839,620 P.2d 370
• Parties: Betty KRIEGER, Appellant, v. Norval J. ELKINS and Shirly Ann Elkins, dba Sh-Val Draperies and Carpet, Respondents.
• Court: Nevada Supreme Court

Page 370

620 P.2d 370

96 Nev. 839

Betty KRIEGER, Appellant, v. Norval J. ELKINS and Shirly Ann Elkins, dba Sh-Val Draperies and Carpet, Respondents.

No. 12104.

Supreme Court of Nevada.

Dec. 3, 1980.

Wiener, Goldwater & Waldman, Ltd., and Gerald M. Gordon, Las Vegas, for appellant.

James L. Buchanan, II, Las Vegas, for respondents.

OPINION

PER CURIAM.

Appellant sued respondents (lessees) for damages caused by an alleged breach of a lease agreement. Respondents counterclaimed for damages, contending they had been constructively evicted from the leased premises. Following trial, the district court found that the respondents had been constructively evicted, and entered judgment in their favor for $9,000. This appeal followed, wherein appellant claims the court erred in finding that constructive eviction occurred, in admitting into evidence a document prepared by respondents' accountant which contained a list of the damages suffered by respondents, and in not entering judgment in her favor upon her complaint.

According to evidence presented at the trial, respondents in 1972 leased certain premises from appellant's predecessor in interest for the operation of a drapery and carpet business. The respondents also presented evidence that they had suffered rain damage to their inventory because the premises had a damaged or defective roof, that the lessors were notified of the problems with the roof but failed to make any repairs, and that respondents therefore vacated the premises and moved to a new location in October 1976.

1. Appellant contends the evidence was insufficient to support the finding that constructive eviction occurred. Constructive eviction results from an active interference with, or disturbance of, the tenant's possession by an act of the landlord, which renders the whole, or a substantial part of the premises, unfit for occupancy for the purpose for which it was demised. Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). Whether constructive eviction has occurred is a factual determination to be made by the trier of fact. Clifmar, Inc. v. Lee, 94 Nev. 594, 584 P.2d 157 (1978). Where the trial court, sitting without a jury, makes a finding upon conflicting evidence that constructive eviction has occurred, that finding will not be disturbed on appeal where it is supported by substantial evidence. Id.

Here, the evidence presented at trial was sufficient to support the district court's finding that the lessor's failure to repair the defective roof amounted to such an interference with the leasehold that it caused constructive eviction. See Sewell v. Hukill, 138 Mont. 242, 356 P.2d 39 (1960). We will not disturb that finding.

2. Appellant also argues the district court erred in admitting into evidence account ledgers which listed "relocation expenses" incurred by respondents after they were constructively evicted. Norval Elkins, one of the respondents, testified that the ledgers were compiled from his books and records and were true and accurate expenses. The ledgers, therefore, were properly admitted. See Foster v. Bank of America, 77 Nev. 365, 365 P.2d 313 (1961).

3. Finally, appellant contends the district court erred in not entering judgment in her favor. She argues (a) she is entitled to damages incurred after respondents vacated the premises, and (b) that during the time they occupied the premises the respondents did not pay the correct percentage rental based on gross sales.

Since the district court properly found that respondents had been constructively evicted from the leased premises, it also properly ruled they were not liable for any damages which may have occurred after they vacated the premises. See Sewell v. Hukill, supra.

However, appellant's argument that respondents improperly excluded certain sales figures from the percentage rental payments during the term of the lease is well-founded. The lease provided:

7. PERCENTAGE RENT. In addition to the fixed minimum rent and for the purpose of providing adequate rental to Lessor for Lessee's use and occupancy of the demised premises,...