Pingree v. Continental Group of Utah, Inc., No. 14484

• Court: Utah Supreme Court
• Writing for the Court: MAUGHAN; HENRIOD
• Citation: 558 P.2d 1317
• Docket Number: No. 14484
• Decision Date: 22 December 1976
• Parties: Carl L. PINGREE et al., Plaintiffs, Respondents, and Cross-Appellants, v. The CONTINENTAL GROUP OF UTAH, INC., a Utah Corporation, and Leslie W. Van Antwerp, Jr., Aka L. A. Antwerp dba Van's Blue Ox, Defendants and Appellants.

Page 1317

558 P.2d 1317 Carl L. PINGREE et al., Plaintiffs, Respondents, and Cross-Appellants,
v.
The CONTINENTAL GROUP OF UTAH, INC., a Utah Corporation, and
Leslie W. Van Antwerp, Jr., Aka L. A. Antwerp dba
Van's Blue Ox, Defendants and Appellants. No. 14484. Supreme Court of Utah. Dec. 22, 1976.

Page 1318

Brian R. Florence, of Florence & Hutchison, Ogden, for defendants and appellants.

Edward P. Powell, of Christensen, Gardiner, Jensen & Evans, Salt Lake City, for respondents.

Page 1319

MAUGHAN, Justice:

On appeal is a judgment of the District Court in an action for a Declaratory Judgment involving a lease, together with a cross-appeal seeking treble damages for unlawful detainer.

We affirm, in part, reverse, in part; and remand for elimination from the judgment all sums included because of failure to construct the fire escape. No costs awarded. Statutory references are to U.C.A.1953.

Plaintiffs, lessors of premises suitable for use as a restaurant initially leased to The Continental Group of Utah, Inc., hereafter Continental. Continental's interest was assigned, with the lessor's consent, to Leslie Van Antwerp, Jr., hereafter, defendant or lessee. In their complaint, plaintiffs sought an order declaring a provision granting lessee an option to renew, invalid for uncertainty. In the alternative, a decree declaring the rental under the renewal option to be $900 per month, and a determination as to the one responsible under the lease for the installation of a fire escape.

Upon trial to the court, plaintiffs were awarded judgment as follows: $4,000 damages for breach of the covenant to repair and maintain the premises and for lessee's failure to install a fire escape; $400 per month additional rent commencing October 1, 1974, through February 1975; damages for holdover of the premises from March 4, 1975, to January 15, 1976, in the sum of $9,450, with offset of $5,000 paid during this period ($90 per month reasonable rental value); $5,000 attorney's fees; and a decree terminating the lease and restoring possession.

Lessors and Continental, the initial lessees, executed a lease for a term of five years, commencing October 1, 1969. The lease provided the premises were rented in an 'as is' condition. The lessee covenanted, at his sole expense, to maintain the exterior and interior of the building and improvements on the premises, including the roof, plumbing and electrical wiring, air-conditioning, and heating equipment, subject to reasonable wear and tear. Reserved rent was $500 per month, plus three percent of the gross receipts, in excess of $10,000. Beginning in 1970, Continental utilized the second floor of the premises for banquets and parties. In January 1972, the Fire Department of Roy City informed Continental this new use of the premises required the installation of a fire escape.

In May 1972, Continental, with lessor's consent, assigned its leasehold interest to defendant. A representative of Continental testified defendant was informed it was his responsibility to install the fire escape, and to repair the floor. The trial court found defendant assumed all the rights and obligations under the lease, and defendant understood, at the time of the assignment, the lease required him to do all maintenance; including changes made necessary by the public authorities. Further, defendant assumed the obligation to repair and maintain any condition which occurred during the occupancy of Continental.

By a letter of September 24, 1974, lessors informed defendant of specific deficiencies in his maintenance, and in their amended complaint, they sought damages for breach of the covenant. The trial court found defendant had failed to make extensive repairs within the covenant. Plaintiffs were awarded damages of $4,000 for defendant's failure to repair and maintain the premises, and to install the fire escape.

On appeal, defendant contends there was insufficient evidence to sustain the finding he was responsible for the damages awarded. However, with the exception of the fire escape, the record does not sustain defendant's contentions.

A representative of defendant's predecessor, Continental, testified the building was in good condition at the time defendant took possession. The records of the Health Department during 1974, indicated the need for repair of the premises. Significantly, defendant did not contradict the testimony of Continental, to wit, he agreed he would be responsible for the repairs and installation of the fire escape.

Estimates of the cost of repairs were adduced, and the court was of the view, if the repairs were made, betterment would

Page 1320

be the result. There is no evidence in the record to show the cost of the fire escape, which was not included in the estimate of repair of structural damage. The total estimate for repairs without the fire escape was $4,564. The trial court did not allocate the $4,000 for delayed maintenance and the fire escape among the various cited deficiencies. However, since there is evidence in the record to sustain the amount of the award, (excepting the fire escape), the finding of the trial court is sustained.

It was found the City of Roy directed the fire escape be installed, because of the use being made of the premises by the lessee; and defendant understood at the time of the assignment, it was his duty to do all maintenance; including changes made necessary by public authorities. Defendant testified he used the upstairs for banquets and parties, which accounted for 10 to 20 percent of his business.

...