Tremblay v. Wesco, No. 358-01 Cncv (K atz, J., July 14, 2004)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. 358-01 CnCv

TREMBLAY

v.

WESCO, INC.

ENTRY

Plaintiff was very badly injured by a fall from a third-floor fire escape of a building in which his wife rented a min i-mart and gas station

from defendant Wesco. He has sued to recover for h is personal injuries. Wesco here moves for summary judgment on the ground that its lease to the wife provided that she would indemnify it from personal injury claims, and that plaintiff guaranteed the wife’s obligation s, including the indemnity. Hence, to the extent plaintiff may be a ble to recover fromdefendant, he has to return any recovery. If he ke eps nothing there can be

no recovery, no case.

We have reviewed the lease, and find it ambiguous at best. We shall review the pertinent portions, which extend t hroughout the several documents making up the lease. Perhaps it is fit t o preface this catalog by noting what is not included—any clear definition of “premises,” although that term is used often throughout the document. B ut we digress.

Starting at the very top, the “Face Page” is denom inated in capital

letters “RETAIL MINI-MART AND GAS STATION LEASE . . . .” It defines “leased premises” as “Fastop, 155 Main Stre et, Winooski, VT.”

The multi-part document next proceeds to what are termed

“recitals.” This document notes:

Landlord does hereby lease to Tenant and Tenant her eby leases from Landlord the following retail premises:

The Gulf/Fastop Mini-Mart, located at 155 Main Street . . . . Being all and the same property . . . conveyed to Timberlake Associates by . . . [prior holders of record title.]

together with all rights-of-way, easements, drivewa ys and pavements, curb and street front privileges thereun to belonging and together with all the improvements an d equipment thereon or connected therewith, including theproperty and equipment now located thereon as liste d in the Fixed Assets Ledger Form . . . . (Emphasis supplied )

The tenant agrees, in paragraph 6, “to conduct the type of business specified on the Face Page at the premises, to use and operate the premises for the sale of Landlord’s motor fuels and petroleum products . . . .” Farther into that paragraph, tenant agrees “t o operate the business conducted on the premises,” implying a single busin ess. She next agrees “(h) to make no assignment . . . nor sublet the pre mises or any part

thereof.”

Continuing to paragraph 8, we find that “TENANT HA S

INSPECTED THE LEASED PREMISES . . . AND HAS FOUND T HEM TO BE IN GOOD WORKING ORDER . . . .” We will skip paragraph 9, if only momentarily. Paragraph 27 provides that if the rent be in arrears, the landlord may forthwith cancel this lease or ent er said premises “by force or otherwise.” Paragraph 31, entitled “Entir e Agreement” starts out

“THIS RETAIL MINI-MART AND GAS STATION LEASE . . . .”

Exhibit B, the Fixed Assets Ledger Form apparently seeks to list with precision everything intended to be included i n the agreement. Its first item is “One [denoting quantity] - Mini-Mart being the first floor only of a three story building.” (Emphasis supplied).

Against this background, we return to Paragraph 9, Indemnity. There, tenant agrees to indemnify landlord “from an y and all claims for injuries . . . loss or damage of any kind . . . to person or property . . . from or arising out of . . . the condition or use of the premises, all buildings, improvements and equipment or Tenant’s operation th ereon . . . or (f) anyother liability arising from the premises . . . .”

These appear to be the pertinent facts.

The interpretation of this lease instrument is a q uestion of law. Quenneville v. Buttolph , 2003 VT 82, ¶¶ 9, 14; Al Baraka Bankcorp v.

Hilweh , 163 Vt. 148, 153 (1994). In construing the lease , it is the court’s duty to ascertain the intention of the parties who entered into it. In re

Verderber , 173 Vt. 612, 615 (2002).

The question quickly comes down to one of whether the fire escape and third floor constituted rented premises, which were leased to tenant, the plaintiff’s wife, and to which the indemnity ag reement attaches. There is probably some degree of ambiguity, in that at le ast two of the cited references suggest perhaps the lease agreement did extend to the upper floors. Wesco points to clause “being all and the same property conveyed to” Wesco’s sister/real estate holding company. Qu ite clearly, the prior owners of the property conveyed the entire building to that sister company, including its upper floors. And the Indem nity paragraph, 9, includes the phrase “all buildings.” But these are the only two references which suggest any intent to lease space beyond the first floor.

By distinction, we note a number of considerably m ore specific references which clearly limit themselves to the Mi ni-Mart premises and the first floor. The strongest and clearest indica tion of these comes from Exhibit B, which is the parties’ attempt to actuall y catalog what was intended to be leased in this particular transactio n, which was quite clearly created solely for this transaction, and which stat es “Mini-Mart being the first floor only of a three story building.”We also place considerable weight on the “Acceptan ce” paragraph,

8, in which the tenant has found the premises to be in good working order. Against the bare language of this paragraph 8, it i s telling to compare the Statement of Undisputed Facts put forth by defendan t Wesco: 4. At the time of Mr. Tremblay’s accident, the sec ond floor of the Building contained an apartment that was con demned

as unfit for human habitation.

5. At the time of Mr. Tremblay’s accident, the thi rd floor of the Building contained an unrented apartment.

Did the parties to the lease, Wesco and Mrs. Trembl ay, actually intend that the condemned apartment, unfit for human habit ation, was inspected and accepted by her and “found to be in good workin g order?” A dubious conclusion. Moreover, the language of paragraph 6 suggests the lease parties intended tenant to pursue only one business . This contradicts the notion that tenant would also occupy the second or third floor residential spaces. The more consistent interpretation is that only the first floor retail space was intended to be leased.

Of course, we understand that what really is occur ring is that a form lease is being lifted off the shelf, or in mod ern terms the word processor, and that not every word was actually neg otiated, or considered, or probably even read. But that is precisely why E xhibit B’s precise listing of what was actually being intended to be i ncluded within the lease of these premises is entitled to primacy, in determ ining the parties’ real intent. See, e.g, In re WorldCom, Inc. , 304 B.R. 611, 617 (Bkrtcy S.D.N.Y. 2004); Brinderson- Newberg v. Pacific E rectors , 971 F.2d272, 279 (9th Cir. 1993); Otto Interiors v. Nestor , 763 N.Y.S.2d 439

(N.Y.City Civ. Ct. 2003); Foote v. Viking Ins. Co. of Wisconsin , 790 P.2d 659, 661 (Wash.App. 1990); Restatement (Second) of Contracts § 203(c)(d), cmts. e, f; 17A Am. Jur. 2d Contracts § 367 (“It is a general rule that where there are general and special provi sions in a contract relating to the same thing, the special provisions control.”). The Indemnity paragraph’s mention of “building,” and th e real estate jargon “being all and the same property” must be recognized for what they are, the first, just part of a much-used general form, a nd the second, a

formulaic incantation.

We are mindful that even some ambiguity may render the lease’s proper interpretation a matter for trial. But this motion comes before the court without any parol evidence having been proffe red. Williston teaches that even in the face of some ambiguity, if the onl y source of decision remains the document itself, its proper interpretat ion remains a question of law. 11 S. Williston & R. Lord, A Treatise on the Law of Contracts § 30.7, at 91–92 (4th ed. 1999) (“However, in the abs ence of any relevant extrinsic evidence, any ambiguity in a written cont ract is to be resolved by the court as a matter of law.”); see also Isbrandt sen v. North Branch Corp. , 150 Vt. 575, 579–80 (1988) (“If ambiguity is foun d on that basis, the court may then rely on subordinate rules of con struction in order to interpret the meaning of the disputed terms.”).

The present motion by Wesco ultimately seeks enfor cement of its indemnity claim, arising out of the lease instrumen ts. Such claims are not to be given loose interpretations or stretched beyo nd the fair, reasonable and necessary meaning of their words. Colgan v. Ag way , 150 Vt. 373, 374–75 (1988); see also Hamelin v. Simpson Paper Co

. , 167 Vt. 17, 22(1997) (Gibson, J., dissenting). Under this standa rd, we interpret the

indemnity section of the lease, Wesco’s broad “buil ding” and “premise” language, to be controlled by the more specific lan guage in Exhibit B and other sections, which limit the leased property to the first floor mini-mart. The second and third floor of the building are ther efore outside the scope of the lease and not covered by the agreement. Sin ce plaintiff’s accident took place on the third floor, he was effectively o ff the leased premises and outside the scope of the indemnity clause. As a matter of law Wesco is not entitled to indemnity from the plaintiffs. To hold otherwise would extend the contract beyond its terms.

Therefore, defendant’s motion for summary judgment is denied.

Dated at Burlington, Vermont, _________________, 2 004.

__________________________ Judge