Turner v. Yow
| Decision Date | 22 June 1983 |
| Citation | 657 S.W.2d 94 |
| Parties | Milton A. TURNER, Trustee, Plaintiff-Appellant, v. Claude YOW and Frances Yow, Defendants-Appellees. 657 S.W.2d 94 |
| Court | Tennessee Court of Appeals |
G. Wendell Thomas, Jr., Knoxville, for plaintiff-appellant.
Gene A. Stanley, Jr., Knoxville, for defendants-appellees.
The tenant filed suit to regain possession of leased property.
The main issue was and is whether or not the terms of a lease were breached and forfeiture had as a result thereof. The Chancellor held that a term of the lease had been breached and the forfeiture was proper. Accordingly, he dismissed plaintiff's suit. Plaintiff appeals.
For the sake of clarity and brevity we will not go into all of the legal transfers, assignments, etc., by which they recently became so, but for the purpose of this opinion the defendant is and will be referred to as the landlord and the plaintiff will be referred to as the tenant.
The lease agreement in pertinent part provided:
4. Lessee agrees to pay all realty taxes upon the leased premises.
* * *
9. If Lessee defaults hereunder the Lessor may re enter and take possession and there upon this lease shall be terminated provided, however, that Lessor shall have no right to terminate this lease except after having given written notice to Lessee specifying the default, and after Lessee has failed to cure such default within thirty days after receipt of such notice.
Most, if not all, the material facts are stipulated and those, if any, which are not, are not disputed.
On April 17, 1981, the landlord by letter, notified the tenant that certain Knoxville property taxes had not been paid. That letter is as follows:
April 17, 1981
Mr. Milton Turner, Trustee
c/o Maxada Investment Corporation
321 Cedar Bluff Road
Knoxville, TN 37919
Mr. Turner:
As you know from my previous letter, I now own the West Haven property. I am also the lessor under the lease of West Haven Corporation with you for the United American Bank Property.
I notice from court house records that your taxes for 1980 have not as yet been paid. The lease requires you to pay these taxes. Since the taxes were past due on February 28, 1981, I request that you pay the same within 30 days.
If you have any questions, call me at my office. The number is 688-5030.
Sincerely yours,
Claude Yow
4685 N. Broadway
By letter on May 12, 1981, the tenant advised the landlord that he was attempting to negotiate a reduction in the City and County taxes. That letter is as follows:
May 12, 1981
Mr. Claude Yow
4685 N. Broadway
Knoxville, TN 37918
Dear Mr. Yow:
In regard to your letter of April 17, 1981 regarding past due taxes, we are in the process of getting the property reassessed by the City and County Tax Assessor. The property was assessed higher than it should have been. As soon as we get the reassessment on the property we will be paying the bill promptly. Until we receive the revised tax bill we ask your indulgence in this matter and will work toward getting this cleared up just as soon as possible.
The 1980 County taxes were paid in February, 1981.
If you have any questions, please do not hesitate to contact me.
Sincerely,
The landlord testified that he attempted to contact the tenant by telephone, but was unsuccessful. The 1980 City taxes were not paid within the thirty day period requested by the landlord and on July 7, 1981, without benefit of Court order or any further notices, the landlord reentered the premises, took possession and changed the locks.
The leased premises was a vacant building formerly occupied by a bank under a sub-lease arrangement with plaintiff, but which had been vacant for over a year and the prime tenant-plaintiff had not relet the premises. In short, the landlord took possession of an unoccupied building.
On July 13, 1981, the tenant paid the 1980 City taxes. The 1980 County taxes had been paid by the tenant in February 1981, prior to the letter of April 17, from the landlord. 1
The tenant then filed this suit seeking to be placed in possession of the property and has tendered rents due under the lease to the landlord.
On appeal the tenant insists that forfeitures are not favored in the law and equity will relieve against same where prior to reentry the landlord can be placed in the same position as he was prior to the breach. Cases are cited in support of that statement and for reversal of the action of the Trial Judge.
Counsel for the tenant also insists that there was no valid reentry of the premises by the landlord because it is argued that a valid reentry may be had only under a Forcible Entry and Detainer Warrant. Several cases and statutes are cited in support of that insistance.
On the other hand, counsel for the landlord argues that since the tenant did not pay the taxes within thirty days after notice of default the landlord had the right to reenter the premises and such reentry was valid because there was no breach of the peace in making the reentry. Cases are cited in support of that proposition.
This case has arrived in this Court with the presumption of the correctness of the judgment below unless the evidence preponderates against the findings upon which the judgment was based. 13(d), T.R.A.P.
At this point we must comment on that which the record does not reveal. The record does not reveal any previous course of conduct between the parties which might aid in the interpretation of the lease. This is probably so because the parties have rather recently occupied the status of landlord and tenant. Although the lease has been in existence for a number of years, with others having the status of landlord-tenant the defendant became the landlord only four months before suit was filed and the plaintiff had been the prime tenant for about two years.
The tenant has maintained at all times that he acted reasonably under the circumstances and was not in default under the terms of the lease at the time of reentry...
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In re Pyramid Operating Authority, Inc., Bankruptcy No. 91-27959-D
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