Taylor v. White Stores, Inc.

• Decision Date: 14 November 1985
• Docket Number: No. C,C
• Citation: 707 S.W.2d 514
• Parties: Curtis G. TAYLOR and wife Rose Taylor, Plaintiffs-Appellees, v. WHITE STORES, INC., Defendant-Appellant. A. 54 707 S.W.2d 514
• Court: Tennessee Court of Appeals

Page 514

707 S.W.2d 514

Curtis G. TAYLOR and wife Rose Taylor Plaintiffs-Appellees, v. WHITE STORES, INC., Defendant-Appellant.

No. C.A. 54

707 S.W.2d 514

Court of Appeals of Tennessee,

Western Section, at

Knoxville.

Nov. 14, 1985.

Application for Permission to Appeal

Denied by Supreme

Court,

Jan. 27, 1986.

William P. Newkirk, D. Michael Swiney, Knoxville, for defendant-appellant.

Russell E. Simmons, Jr., Rockwood, for plaintiffs-appellees.

CRAWFORD, Judge.

This is a controversy between a landlord and tenant as to their respective rights and obligations under a written lease agreement. Plaintiffs-lessors, Curtis G. Taylor and wife, Rose Taylor (hereinafter referred to as Taylor or lessor), sued defendant-lessee, White Stores, Inc. (hereinafter referred to as White Stores or lessee), seeking a judgment that the lease agreement between the parties was terminated and for possession of the premises. White Stores filed an answer and counter-claim joining issue on the complaint and seeking specific performance of the lease agreement requiring rebuilding or restoration of the building or, in the alternative, damages. The chancery court sitting without a jury entered a judgment adverse to White Stores resulting in this appeal.

The lease agreement in question executed in 1957 was by and between Taylor's predecessor in title as lessor and White Stores as lessee for a period of ten years expiring August 31, 1967. The lease agreement was properly extended from time to time and at the time of this controversy was to expire August 31, 1985. The last extension was dated May 7, 1975, before Taylor acquired ownership of the property and assignment of the lease on August 31, 1979. The parts of the lease agreement pertinent to the controversy before us are as follows:

* * *

4. The Lessors shall carry upon the improvements on the premises herein leased, at their sole expense, fire and extended coverage insurance to the extent of the insurable value of the improvements in an amount of not less than $50,000.00 with good and solvent companies issuing policies valid in the state of Tennessee, which amount of insurance may not be reduced except upon the written approval of the Lessee. Should the buildings on said premises be partially damaged by fire or other casualty so that a pro rata part of the same is made untenantable and cannot be used by the Lessee, the rent on such damaged portion shall be abated until the repairs are made, and the Lessors agree that such restoration or repairs shall be made at their sole expense as speedily as possible after such loss. Should the buildings be totally destroyed by fire or other casualty, Lessors shall proceed as speedily as possible after loss to rebuild the buildings at their sole expense and when the work of replacement or reconstruction is finished, Lessee will be given immediate possession for the remaining period of this lease, subject to all the terms and conditions thereof, and the total rent shall be abated until the premises are fully restored to the possession of Lessee in the same condition as before the fire. In the event the buildings are destroyed by fire, this lease shall be extended for an additional term equal to the time required for the rebuilding or restoration of the leased premises.

Should the premises be totally destroyed by fire or other casualty during the last six months of the period of this lease, then the Lessors shall be under no obligation to rebuild and restore said premises and in such event this lease shall terminate and become null and void as of the date of such fire.

During the period required for the restoration or reconstruction of the said buildings or any part thereof, the Lessors shall not be liable to the Lessee for any loss of use of the premises by the Lessee but the rent shall be abated as above provided until said buildings have been rebuilt or repaired and possession thereof restored to the Lessee.

5. If the Lessee shall fail to pay the rent as herein provided, ... or shall fail to fully keep and perform any of the other covenants, terms and conditions of this lease, and such default continue without being corrected for 20 days after written notice thereof from the Lessors, then said lease, at the option of the Lessors, shall immediately terminate, and the Lessors may take possession at once and shall be entitled to re-enter the premises, excluding the Lessee therefrom and to hold said land as of their former estate.

6. This lease may be assigned, transferred or conveyed or any part of the premises may be sublet by the Lessee provided the Lessee herein named, regardless of any sublease or assignment, shall remain liable for all rents and performances of all covenants and agreements herein contained unless relieved therein in writing by the Lessors.

7. Upon the termination of this lease, Lessee agrees to return the leased premises in as good a condition and state of repair as received, ordinary wear and tear, loss by fire, windstorm, cyclone and acts of God excepted.

8. The roof and exterior walls of the buildings; the floors except the floor covering such as asphalt tile, etc., and all structural parts of the buildings shall be maintained by the Lessors. All other maintenance and repairs shall be borne by the Lessee.

White Stores ceased operating a grocery store in the building in the fall of 1982 and sublet the premises to Stewart Enterprises, Inc., by agreement dated January 6, 1983. The rent...