# FILED May 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) LUNN REAL ESTATE ) Davidson County Circuit Court INVESTMENTS, INC. , ) No. 96C 1688 ) Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9704-CV-00191 ) BOILER SUPPLY COMPANY , ) INCORPORATED , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Hamilton Gayden, Jr., Judge
H. Naill Falls, Jr. , FALLS, RAMSEY & VEACH, P.L.C., Nashville, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Charles Patric

k Flynn , Nashville, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) TOMLIN, Sr. J. : (Concurs)1 The record indicates that in August 1995, pursuant to a separate lawsuit brought by

Boiler Supply

, a judgment was e

ntered holding th

at the lease had p

reviously te

rminated in December 1991 and that Boiler Supply had been a month-to-month tenant from that point forward. It was Boiler Supply’s contention that the lea se had terminated at that time.
2 The general sessions court awarded judgment in the amount of $7,790 plus approximately

$4,000 in attorney

’s fees.
3 Mr. Lunn testified that Boiler Supply is in the business of “repair[ing] big boilers. The kind . . . that are u

sed in hospitals, the

operations of indu

stries, [and] larg

e commercial buil

dings, . . .” It also e

ngages in con

struction projec

ts and its employ

ees include sale

s engineers, electricians an

d welders. This case involves a c

ontractual disput

e between the le

ssor and lessee of

certa i n commercial property. The appellant, Lunn Real Estate Investments, Inc. (Lunn), leased the subject premises to the appellee, Boile r Supply Company, pursuant to an agreement executed by the parties
on January 1, 1989. On August 31, 1995, Lunn served Boiler Supply with written notice that it was requiring the latter to vacate the premises by October 1, 1995. 1 On October 5, 19 95, Lunn filed a detain er action in the general sessions court seeking possession of the property . By order entere d April19, 1996, the cour

t found the claim

for possession moot due to Boiler Supply’s vacating of the premises on November 30, 1995, but awarded Lunn a judgment for

two months holdover rent plus attorney’sfees. 2 Lunn appealed the decision to circuit court where, after a hearing, a

judgment was entered for Lunn for $17,790. Lunn now appeals fro m that d ecision to this Court requesting additional compensatory damages, due to Boiler Supply ’s alleged failure to maintain the premises in accordance

with the contract

, and attorney ’s fees. For the reasons set fort

h below, we affir

m.

The subject property

is approximately

50 years old

and consists of two

main parts: the main or office building, covered with a “flat” or tar roof and a shed or “warehouse” structure, built and attached thereto in the 1960 s. The warehouse roof is rounded a

nd made of sheet me

tal. The property housed the business of Boiler Supply for over 30 yea rs. Both the property and the business were family owned. Eddie Lunn, Sr., founded and operated the business until his

death in 197 8. Since then, his son, Eddie Lunn, Jr.,

has served as its p

resident. 3 Gloria Lunn Allison a n d Beverly Lunn Young be

gan serving on

the board of dire

ctors of Boiler Su

pply sometime

after their father’s death. Boiler Supply originally lea sed the property from

Mr. Lunn, Sr. a

nd his wife, Glady

s. In 1984, Lunn

Real Estate Investments was established and B oiler Supply b egan leasing

the property from the appellant. L

unn’s owners wer

e Mr. Lunn, Jr.,

his mother, Glady

s and two sisters, Ms
. Allison and Ms. Young. Its assets consisted of thr ee pro perti es, in cludi ng the one in quest ion. In4 The obvious ambiguity in this provision led to the unrelated litigation hereinabove

mentioned. May 1990, the family

assets were divided re

sulting in Ms. Allison and Ms. Yo

ung relinquishing

their respectiveinterests in Boiler Supply and Mr. Lunn, Jr. relinquishing all interest in L unn Real Estate.
Throughout

the years, various agreements were e ntered into regarding the leasing of the premises. The

one at issue provid

es the following , as here releva nt:

2. Terms of Le

ase. Lessor l

eases to Less

ee, tohave and to hold the samesubject to all term

s and conditions set

forth herein

for a term of three (3) years, beginning

on the 1st day of January, 1989, and ending on the 3 1st day of December, 1992, unless sooner terminated as provided herein . . . 4

. . . . 7. Maintenance of Premises 7.1 Lessee agrees

at its sole risk and e

xpense to maintain the Premises in good and substantial condition, order and repair except for ordinary depreciationand ordinary wear and tear throughout the Term of this Lease. Lessee agrees not to commit any w

asteof the Premises, and up on the expiration or other termination of this Lease, Lessee covenants to surrender possession of the Premises to Lessor in as good a condition as the same were in atthe commencement of the Term, except for reasonable wear and tear and normal depreciation. Lessee shall maintain and make all replacements of depreciable ite

ms and capital items l

ocated on said Pre

mises.

. . . . 7.3 In the event

Lessee should

neglect to maint

ain the Premises or

to repair or replace any damage or injury caused by Lessee,

it’s agent or invitee to t he P rem ise s wi thi n th irt y (30 ) days of occurrence, Lessor shallhave the right (

but not the obligat

i on) to cau se repairs and corrections to b e ma de, and any reasonable cost thereof shall be payable to Lessee to Lessor as additional rent on the next rental installment date.

. . . . 8.1 Lessee

shall not create

any opening

s in the roof or exte

rior walls, nor make any alterations, additions, or improvements

to the Premises withoutprior consent

of Lessor. Lessee shall have the right, but not the obligation, at al

l times toinstall equipment, machinery, additional air conditioning and heating equipment and trade fixtures, provided Lessee complies with all applicable governmental laws, ordi nance s and regulations; . . . 8.2
. . . Lessor recognizes that from time to time throughout the initial andany extension or renewal term hereof, L

essee will cause

to be placed upon the Premises certain machinery, equipment, fixtures andtrade fixtures. L

essor hereby

acknowledges

and agrees t

hat all5 On May 3, 1990, the parties amended the lease to add languag e stating that at the end of its initial term, it “would automatically be extended at the Lessor’s option” until the earlier of certain specif

ied events: the 90t

h day follow

ing the death of

Gladys L unn or the end of th

e 90th day after which the lessee provides the lessor with a contrac t of sale for the underlying real estate. The record indicates that Appellee began making attempts to purchase the proper ty in 1992. The amendment further provided that the parties “reaffirm[ed]” the January 1, 1989 L ease Agreement and “agree[d] to be bound by all the terms and provisions [thereof] . . . .”

items of machinery, equipment, fixturesandtrade fixtures so placed or located upon the Premises shall be and remain the sole property of Lessee . . . and shall

be and remain pe

rsonal property

regardless

of the manner in which said equipment and fixtures ar e attached to the Premises; that such e quipmen t and fixtures shall not at any time be deemed a part of the realty; and that such equipment and fixtures may be removed from the

Premises by L

essee . . . at any

time before the expiration or other termination of this Agreement; . . .

. . . . 21. Holding Over. Should Lessee or an

y of its succ

essors in interest remain in possession of (or hold o ver) t he Premises or any part thereof after the expirationo f the Term, unless otherwise agr

eed in writing, such hold

ing over shall constitute and be construed as tenancy from month to month only, at a mo nthly rental equal to the rent paid for the last month of the Term of the Lease, and otherwise subject to the condi tions, provisions an d obligations of th

is Lease insofar as the same are applicable to a month to month tenancy. . . . 22. Events of Def

ault.

. . . . (b) Lessee

shall fail to comply

withany Term, provision or covenant of this Lease, other than the payment of rent, and sha ll not cure such fail ure wi thin twenty (

20) days af

ter due written no

tice thereof to Lessee;

. . . . 24. Attorne ys’ F ees. If, on account of any bre ach or default by Lessor or Lessee of their obligations to a ny of the parties hereto, und erthe terms, covenants and conditions of th

is Lease, it sh

all become necessary for any

of the parties hereto to employ an attorney to enforce or defend any of their rights or r emedies hereunder, an d should such party p

revail, it sh

al l be entitled to any

reasonable attorneys’ fees incurred in such connection. 5

The appellant

argued before the trial court, and now on appeal, that the appellee breached the le

ase agreeme

nt by failing

to comply with its obligations under paragraph 7, or more spe cif ica lly, by failing

to replace depr

eciable and capital items and by removing five infrared heate rs upon vacating the property. Appellan t contends that such breach entitles it to additional compen sation. In ruling, the trial court found that “there was waste committed,” bu t “no tintentio nal[ly].” The court continu ed, “[w]aste in the s

ense that the sub-

ceiling of the me

ta l roo f rottedout in places, all of which, in the court’s opinion, could have bee n prevented.” The court fo und, howev er, that the appellee had not acted “unreasonable” in failing to replace the r oofs and expressly held that it

was finding for the appellant “in a very small amount.” The court awa rded a judgment for $7,500, plus $2,500 in attorney’s fees and $7,790 representing the two months rent that appellee remained on the premises after being notified to vacate. Finally, the court found that the infrared heaters were fixtures which, under the co ntra ct, could be removed by the appellee upon vacating.
Appellant raises the following issu

es on appeal:

1. In plaintiff-lessor’s action against defend ant-l essee for breach of a commercial l

ease agreem

ent, did the trial court err in r efusing to enforce a lease clause requiring the lessee to make nece ssar y re plac emen ts of d epre ciab le ca pital items [?] 2. Did the trial court err in ruling the plaintiff-lessor could not recover the repair costs

it in curred upon lessee’s sur render becaus

e the repair costs alle

gedly exce

eded the value of

th e deprec iation caus ed by lesse e’s f ailur e to ma intai n the p rope rty [?] 3. Did the trial cour

t err in fail ing to compensate plaintifflessor for lost rents incurred during the time the premises were unleasable

and undergoingrepairs following lessee’s surrender of the premises? 4. Did the trial court err in failing to compensate plain tifflessor for the value of heating units lessee removed from the premises in violation of the le

ase agreeme

nt? 5. Did the trial court

err in reducing plaintiff’s damage award because of acrimony bet ween opposi ng f amily members, notwithstanding the undisputed expert proof that plain tiff’s dam age cla ims were reas ona ble and nece ssa ry?
Appellee presents the following additional issue:

The trial court erre

d when it awarde

d the Plaintiff dama

ges in excess of the hold-over rent which had alr eady been tendered. Because of the tender, the Plaintiff was not entitled to recover attorney’ s fees or court c

osts.
Our review of this case is pursuant to Rule 13(d) T.R.A.P. which provides for a denovo review upon the record, accompanied by a pre sumption of correctness of the trialcourt’ s findings of fact, unless the evidence preponderates otherwise. E.g., North l and Ins. Co. v. State Farm Mut. Auto. Ins. Co. , 916 S.W.2d 924, 926 (Tenn. App. 1995). No presump tion of correctn

ess attaches to the trial court’s conclusions of law. Lucius v. City of Memphis , 925 S.W.2d 522, 524 (Tenn. 1996); Presley v. Bennett , 860 S.W.2d 857, 859 (Tenn. 1993).
Appellant’s first issue concerns the trial court’s alleged error in failing to enforce the lease provision under paragraph 7, section 7.1, which states that the “[l]essee shall maintain and make all replacemen

ts of depreciabl

e items and capital items located on said Premises.” Appellant argues that section 7.1 is n ot ambiguous and r

equires the appe

llee to replace

, at its own exp ense, those “worn-out” capital items, including the two roof s. Appellee insists that it has no obligation in this respect

because it was ne

ver given notic

e and an opportuni

ty to cure pu

rsuant to paragraph 22(b). Appellant counters that the latter provision is inapplicable because it is not now seeking to de clare a default under and terminate the lease as it had ended prior to the lawsuit an d befor e Appellee vacated the premises. Appellant further contends that until Boiler Supply had vaca ted the premises, it could n

ot make a final de

termination of whe

ther the propert

y had been s

urrendered in the condition required under paragraph 7.

The trial court

found both the 1989 Agreement and its 1990 amendment ambig

uous. As to the specific provision in question, the court found that “[i]f read literally, that would mean that by signing this lea

se, the lessee wa

s required to rep

lace all capitol [sic] items. Not only was that not done by the parties, but The Court does invoke the parol evidence rule, . . . . Basically, this was

a conditional lease, . . . that at the death of . . . Gladys Lunn, it evoked the termination part. Or read
one way, it almos

t requires the les sors to sell proper ty to the les see with three estimates . . . . But that, obviously, wasn’t the conduct of the parties, either, and that wasn’t done . . . . obviously, the lessee
. . . really did

n’t know what kind o

f lease they

had in the first pla

ce. Soyou have to read that in co njunction with t he conduct of the parties before 1989, the fact that this is a family piece of property . . . . I’ll have to put all of that into the mix.”

The cardinal rule for contract interpretation is to ascertain the intention of the parties andgive effect to

those intentio ns consistent with legal principles. HMF Trust v. Bankers Trus tCo. , 827 S.W.2d 296, 299 (T enn. App. 1991). T

o determine the pa

rties’ intent, we first look to the material contained within the four corners of the document itself. Words or phrases contained in the instrument are to b

e given their or

dinary and

usual meaning, u

nless otherwise

expressly provided. Rogers v. First Tennessee Bank Nat’l Ass’n , 738 S.W.2d 635, 637 (T enn. App. 1987); Jaffe v. Bolton , 817 S.W.2d 19, 25 (Tenn. App. 1991). In determining whether the meaning of the contract is clear or ambi guous, the l anguage in dispute must be examined in context of the ent ire agreemen

t. Gredig v. Tennessee Farmers Mut. Ins. Co. , 891 S.W.2d 909, 912 (Tenn. App. 1994). If the language of the

contract is

clear and unambiguous, it must be construed as written. Cummings v. Vaughn , 911 S.W.2d 739, 742 (Tenn. App. 1995). In suc h case, neither p

arty is to be favored when construing the contract. Heyer-Jordan & Assoc., Inc. v. Jordan , 801 S.W.2d 814, 821 (Tenn. App. 1990). The language of the contract is said to be ambiguous when its meaning is uncertain and when it can be fairly construed in more than one way , Gredig , 891 S.W.2d at 912, or, as stated by the court in Book-Mart of Florida, Inc. v. National Book Warehouse, Inc. , 917 S.W.2d 6 91, 693 (Tenn. A pp. 19 95), “when a court [cannot] perceive the respective obligations of the parties for enforcement.” If the contract is determined ambiguous, we are to determine the intention of the parties not only from

its language b

ut a lso fr om the surrounding facts and circumstances. HMF Trust , 827 S.W.2d at 299.

The foregoing rules of construction in mind, we find the plain language of paragraph 7 to require Appel

lee to maintain and

make all replac

ements of deprec

iable and capita

l items. It is importan tto note, however, that during the course of the lease the parties operated under t w o different tenancies. The second being a month-to-month tenancy from Dec ember 1991 forward. Paragraph

21 of the lease, which pertains to any holdover by the lessee, states

that such period sh

all be construed as a mont

h-to-month

tenancy and “subject to the conditions, provisions, and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy .” The eviction notice Appellant delivered to Appe

llee dated Augu

st 31, 1995, acknow

ledges t hat the latter had been “a month-to-month

tenant since December 1, 1991.” We do not believe pa ragraph 7 (as

it pertains to the replacement of depreciable items) may reasona bly be interpreted

to apply to a mon

th-to-month ten ancy. Thus, the contract does not require a month-to-month tenant to replace capitalitems, such6 Ms. Allison testified that Appellee paid approximately $19,000 to replace the two roofs

after Boiler Sup

ply vacate

d the premises. as the roof. 6

To require the appellee t o replace those depreciable and capital items as Appellant suggests, it would seem necessary to know exactly at what point in time the roof a nd other such items needed replacing. A 1992 “home condition analysis report” c onducted on behalf

of Appellant and provided to the appellee states that the roofs needed “repair.” The report specifica lly reads : “[t]he structure’s cover roof will require repair in order to meet min

imum satisfactory

requirements. It is advised tha t a qualifi ed and experienced roof contractor provide bids of repairs. It should be noted that at

times it may be difficult to find a qualified contractor to perform repairs on a roof cover. Often they

require replacement, due to the implied warranty of repa ir work on a roof system.” The report further states that “[t]he water heating system installation appears not to be functional or a[n] improper installation. Repla

cement may be necessary.” As to the heating and air conditioning systems, the report states that

bot h “ap pear [ ] n ot t o be wor kin g pro perl y” and that the “services of
a qualified service person [were] needed” for further evaluation. Nothing in the record indicates that these items were in need of replacement pri or t o th e est abl ish men t of the mon th- to- mon th t enan cy. Moreover, the court

found and the record establishes that “[t]here was never a demand to replace the roof at any time until after the [present] lawsuit was filed.” We further do not find the last sentence of paragraph 7 to comeinto play only upon the lessee’s surrender of the premises. Certainly, the appellant,as a means of preserving its own property

, could have come

upon the premises a

t any time to inspect its condition. We, therefore, conclude that Appel lee was not required, as a month-tomonth tenant, to replac

e the depreciab

le and capital ite

ms on the premises. However, we do find the record to support the finding that Boiler Supply improperly maintained the premise s (insofar as repair) while in occupancy.

Proof presented at trial included the follo

wing: Mr. Lun

n testified that B oiler Supply “. . . tried to make repairs on an as needed basis, on both roofs, the metal roof and

the tar roof.” He acknowledged that during the six years of the lease, no outside roofing compan y was employ

ed to repair the roofs. He believed the roofs on the property were in as g ood a condition in November 1995 as they wer

e in January 1 989 even though t hey leake d throughout t

hese years. He wasquestioned:
Q. So those leaks just co ntin u ed to leak and the

roof obviously deteriorated a

s a result. Wouldn’t y

ou agree with th

at? A. I would agree with tha

t. I would have to state that there were repairs to the metal roof in some cases tha t we re made by our own personnel . . . I can’t be specific with those, but cases w here wind damage or something like that would oc cur, we would atte mpt to repair something with our own people, if it were appropriate.

Lunnfurth er acknowledg ed that the shed ro

of leaked at the e

nd of the lease. H

e explain ed a s follows:

This shed . . . covered a dirtyard, truck unloading dock, and a truck turnaround.
. . . it was nothing but dirt . . . . The truck dock was covered with the flat

roof that is there . . . this she

d was built simply to cover that dirt area.

. . . I say all of that to say

. . . , we don’t bring a lot of boilers in there, [ but do on occasion]. A boiler, by nature, . . . is an extremely dirty piece of the equ

ipment . . . . We have

to clean them

. . . . the shed, I don’t believe, ever was intended to keep water ou t completely. The floor was designed to hose down and to wash off.
Lunn stated that t

he sh ed was used for pipe and brick storage and, on occasion, used pieces of equipment. Welding work was also performed there. He commented that the type of work done there was “very dirty” and tha t it was not an “office-type environment.” Since Lunn began working at Boiler Supply in 1972, he could never recall a time when the shed roof wa s water tight. The flat roof also had r

ecurring leaks and

it, too, le

aked as of

January 1989. The

re were e xt ens ive water stains throughou

t the building at th

e beginning of

the lease as a re

sult of the roof lea

ks.

Lunn stated that routine manual maintenance was performed on the cooling sy

stem, including filter wor

k a nd replacing the cooling tower, piping, electrical motors and a compressor. Prior to vacating

the premises,

Boiler Supply resurfaced the driveway on the property a nd painted the building exterior. It also employed a company to paint the metal roof

and replace four missing panels.
Danny

Demonbreuntestified that he h ad been in the roo

fing business

for 17 years andinspected the condition of the roofs in order to bid on thei

r repair/repla

cement after B oiler Supply vacated the premises. Upon inspection, he found moisture coming from three areas and between the layersof the flat roof, and “q uite a bit of rot there where it had been leaking.” He concluded that the flat roof was in “very

poor condition.” As far as maintenance measures, he found that there had been
somepatching done and

possibly some hot asphalt mopping, but it was not uniform in application. The metal roof had problems also, including loose panels which allowed water to get

through. Some of the wooden beam s underneath the metal roof “had leaked to the extent that they were rotted almost in two.” He did not b

eli eve the t wo roofs would have been in the condition in which he foundthem had they

been properly

maintained during

the past six years. Do

nald Morris, a re

al estate appraiser, testified that he inspected and appraised th

e property in June 1993. He described it at the time as “in a poor state

of repair” and a

lso found evidence of “deferred maintenance or lack of maintenance.”
Terry

Gentry, an

electrician, te

stified th at he inspected the building’s electrical system sometime in 1996 and concluded that repairs were needed. There were lights that did not b

urn, some plug covers were missing; he performed “just mainly service wor k.” He also reconditioned t h e electrical service equipment to “bring it [up] to safety standards.” His total charg es were $2,075.

Donald Rich, the owner of Rich Construction Company, testified that he inspected the heating and air conditioning units at Boiler Supply in 1996. He found the heating sy stem unrepairable and the

air conditioning unit “in real poor shape.” He replaced both units at a cost of $12,500. He propos e d a charge of $ 5,800 to “rework

” the two units as op

posed to replace

ment. Jimmy Rich, general manag er o f Rich Construction, also inspected the premises at Appellee’s request in D ecem ber 1 995 . He fou nd t he ro of “t o be very o ld, i ll repaired” and to leak in several places. He did not consider the building safe. His total charges for genera l repairs were $5,980.

William Ellis, an employee of Boiler Supply for 26 y ears, t estified on Appellee’s behalf. He stated that the condition of the premises was “just about the same” in January 1989 as it was in November

1995. The company’s maintenance of the premises from January 1989 forward
was the same as during the lifetime of Mr. Lunn, Sr. He denied that there ever came a time when the company began

“slacking off”

or “just stopped” maintaining the premises, because they “didn’tknow whether [they] were going to be there for a hundr ed years or what.”

He b elieved that the condition of the premises in Nov ember 1995 was “[i ]n some respect . . .

better” than it wa

s in January 1989. On cross-e

xamination, Ellis admi

tted that he had no e

xpertise in roofing or

heating and air conditioni

ng. He stated tha

t both roofs had lea

ked for the past 26

years.

James Oakley testified that he had been employ ed by Boiler Supply since 1957. He stated that there were problems with the warehouse area

roof (leaks occurring on and off) “for the last several years.”

He maintained

that the condition of the property at the end of November 1995 “was essentially

the same” as its condition in Januar y 1989 except

for the “cosmetic

improvements” Boiler Sup ply made just p rior to vaca ting.

BillHawk ins , an ind ust ria l re al e sta te b rok er wh o ha d op por tun ity t o view t he property bothin January 198

9 and November 19

95, testified that i

ts condition during

this time period “didn’t change drastically.” He determined that the prope rty was rentable on the

day Boiler

Supply vacated the premises at a r

educed rate

commensurate

with its condition. In 1989, he valued the property at approximately $180,000 and in November 1995, at $225,000. These figures were based
on t he overall condition of the property and the upswing in market conditions during tha t tim e period. On cross-examinat ion, Hawkins admitt

ed that he was not a

real estate appraiser and that he inspectedonly the “physical structural parts of the building.” He believed the p roperty, a t the time Boiler Supply vaca

ted, could be ren

ted at a monthly rate

of $2,000. He ag

reed that during

the time period in question, the perc entage of appr

eciation on comme

rcial property

in the area was mo

r e substantia l than the appreciation on this particular property. On redirect examination, Hawkins stated that he believed the rental value of the property from 1989 to 1995 was “ about the same.”

As w e have determined the record to support a finding that Appellee failed to properl y maintain the premises, we now address Appellant’s issue regarding whether the trial court

erred in disallowing a recovery of its entire repair costs because such expenses allegedly exceeded the value of the “depreciation” caused by Appellee’s improper ma intenance. Appellant’s argument is directed at the trial court’s rul ing at the close of App ellan t’s pr oof in regard to it s mot ion t o dism iss. In granting the motion, in part, the court stated: “ [t]he cost to the repairs prod

uced by the

[Appellant]
are much greater than

the depreciation of the property based on the waste that’s bee n proven . . . .”The court held that it w as relying on the “genera

l proposition that if

the costs t

o re pair exceed the depreciationas a result of the waste, then the de

preciation is

the measured damages” and cited Fuller
v. Orkin Exterminating

Co. , 545 S.W.2d 103 (Tenn. App. 1975). The c

ourt continued “[A

ppellant] has put nothing in the record to invoke the magic formula, what was the value of the property before; what was the value of t

he property

afterwards, which there is a difference.” At the close of all proof, the court found that

“the costs of repairs far

exceed the value of this property in 1989, as opposed to the value in 1995, the difference in value is that appreciation.”

Appellant contends that the proper measure of damages are those as set forth under the contract. The c

ontract reads th

at inthe event Boiler

Supply negl

ected to maintain t

he premises, Appell ant had the ri ght to “cause r epairs and corr

ections to be made

” with the “reaso

nable costs thereof” payable by Boiler Supply . The damages sought by Appellant include $5,980 for g eneral repairs, $19,000 for roof replacement, $5,800 for heating and air conditioning repair and $2,075 for electrical system repair, for a combined total of $32,855.

The court in Fuller v. Orkin held as follows:

Our appellate court

s have uniformly

held that the measure of damages for injury to real estate is the difference between the r easonable

market value of the premises immediately prior to a n d imme dia tely

after injury but if the reasonable cost of repairing the injury is less than the depreciation in value , the cost of repair is the lawful measureof damages.. . . Of course, the trier of fact ca

n also take into consideratio

n the reasonable

cost of restoring

th e p roperty to its former condition in arrivin g at t he difference in value immediately

before and afte

r the injury

to the premises.

Fuller , 545 S.W.2d at 108 (citations omitted).

As we find the record, the only testimony on the fa ir market value of the property indicates an appreci ation in va lue of approximate ly $45,000 fr

om 1989 to 1995. As the property appreciated

in value but not to the extent possible due to the appellee’s waste, the trialcourt looked to the requested costs for repair versus the amount of depreciation in terms of waste. The trial court foundthat the c

ost of rep airs exce eded the a mount of de

preciati on. We imply from the court’sruling that $7,500 represen

ts the c osts of rep air for whic h Appellan t is reason ably entitled . AlthoughAppellant

has requested

some $30,000 in damages we note that the entire replacement costs for the roof ($19,000) are not properly included within this figure as we have pr ev iou sly d etermined that Boiler Supply had

no duty to replace the roof as a month-to-month tenant. We further find the record to reflect that

some of the repair costs inc luded replacing

certain materia

ls and items on the pr

operty which r esul ted in an actual improvement of the property or a betterment of its condition than was the case in January 1989. We, therefore, conclude that the reasonable c

osts of repair to

which the appellant is entitled, based on the appellee’s waste, were properly decided.
Appellant’s next issue is whether the trial court erred in failing to compensate it for the lost rents incurred during the time the premises were “unleaseable” and undergoing repairs following surrender. The t rial courtawarded Appell ant damages re

presenting two m

onths rent. Gloria Allison testified that the last repair work perfo rmed on the prope rty after B oiler Supply vacated was in May 1996. Efforts were not made to lease the property again until June 1996 after completion of all the repair work. She was aske

d, “you just ma

de the conscious d

ecision that until you had all of this work done, you were n’t
. . . going to try to . . . market . . . it; is that right?”, she responded, “[t]hat was my decision. ” Appellant there after rented th

e property

to a new tenant at

a monthly rate of $3,900. The monthly rental paid by B oiler Supply at the time it vacated

was $3,895.

Mr. Hawkins testified that the pro pert y could have been rented upon surrender for approximately

$2,000 per month. There is no tes tim ony to the contrary. Moreover, Ms. Allison statedthat she made a conscious decision to not attempt to rent the premises during this period. After all necessary repairs and replacements we re made, the appellant

rented the property for $3,900, only $5 more than the monthly rate paid by the a

ppellee at the en

d of its lease. Thus , this Court is
unsure exactly whowas getting the better of the deal during those months the appellee was paying $3,895 in rent when there was testimony that at the end of the term

the property could probably be rentedfor no more than $2,000 per month. In any event, we find no error by the trial court in failing to award lost rents during the entire time period of repair where Appellant made no attempt to rent the prope rty during

this period and the

re was unrefute

d testimony tha

t the premises wer

e rentable upon surrender.

It is next argued that

the tri al court erred in failing to compensate the appellant forthe value of five infrared heaters that were removed by the appellee upon vacating the premises. Mr. Lunn testified that

the heaters were attached to the rafters that connected to the electrical and natural gas lines. He confirmed that these were the only source of he at in the warehouse area and were installed prior to

1989. He removed

the equipment bec

ause Boiler Suppl

y was a “dealer”

for these kind of heaters and, therefore, believed them a part of his company’s equipment. Lunn stated that the heaters were

used to allow Boiler Supply employees to work in specific are

as of the wareho

use andthat these particular

heaters were not

designed to heat the entire warehouse area. He testified:

The infrared h eater, itse

lf, is a focused he

at that heats just a

certain area. It’s widely used in places where y ou either need spot heating or you have a large area heat that you don’ t want to heat the air, you just want to heat the su

rface that it str

ikes.

Mr. Oakley testified that

the heaters were “removable.” He described them as “suspended by

chains, much like a certain ty

pe of li ght fixture . . . . [B]ut they were suspended from beams overhead by chains.”

Boiler

Supply argues

that the trial judge obviously “misspoke” when he stated that the infrared heaters were “fixtures” that Boiler Supply was e ntitled to remove. Appellant contends that the trial court correctly ruled the items fixtures, but because they were placed on the premises prior to 1989, when the various other leases executed by the parties called for all fixtures placed on the pr emises by the l essee to become the property of the lessor at the expiration thereof, they rightfully belong to the app

ellant.

The court in State ex rel. Comm’r v. Teasley , 913 S.W.2d 175 (Tenn. App. 1995), defined the term

s “fixture” and “t

rade fixture”as

follows:

Black’s Law Dictionary

defines the term “fixture” as “[a]n article in the nature of personal propert ywhich has been so annexed to the realty that it is regarded p art o f the land.” “Trade fixture”, on the other hand, is defined a

s “[p]ersonal pro pert y u sed by the te nant in business. Such fixtures retain the character of personal pro pert y . . . .”
Teasley , 913 S.W.2d at 177. The court further held:In Ten nes see o nly those ch attels are fixture s which are so attached to the freehold that, from the intention of the parties and the uses to which they are put, they are presumed to be permanent ly annexed, or a removal thereof would cause s erious injury to the freehold. . . . The usual test is said to be the intention wi th which a c hattel is connected with realty. If it is intended to be removable a t the pleasure of the owner, it is not a fixture.

Id
. at 177-7 8 (quoting Memphis Housing Authority v. Memphis Steam Laundry-Cleaner, Inc. , 46 3 S.W.2d 677, 679 (Tenn. 1971) (citations omitted)).

Considering the record, we do not find the five infrared heaters to be “fi xture s” as herein defined. There was testimony that the heaters were used to “spot” heat c ertain areas of the warehouse

in order that

the Boiler Supply employees could work ther e. They did not heat the

whole warehouse

area and were

su sp ended by chains. Mr. Oakley sta ted that they were removable and there was no testimony that upon such removal there was any damage to the freehold. Furthermore, Lunn testified that Boiler Supply was a dealer of the he

aters. We do not bel

ieve the record

supports
a finding that the parties intended that they be permanently

annexed to

the pro pert y. Co nse que ntl y, we h old tha t Bo ile r Su ppl y was ent itl ed t o rem ove the m up on v acat ing t he p rop ert y.

Fin all y, Appellant contend s that its damage award was erroneously reduc ed by the trial court because of the acrimonious relationship of the parties who are family members. The record indicates that the trial court considered the family dyna mics involved in this case. However, it does not sugge

st any over-

emphasis by t

he trial court in

this regard. We f

ind the record to

support the trial court’s decision regarding damages and hold that any particular importance placed by the trial court on such family dynamics, if any , was harmless error.

We find no merit in the appellee’s contention that Appellant is entitled to no award in excess of the two months holdover rent which wa s undisput ably tender ed to Appellant. I

t is asserted that because of the tender, Appellant is not entitled to an award of attorney’s fees or court costs. The contract pr

ovides for an award of attorn ey’s fees in the event of any

breach, if successfully litigated. The trial court determined that the appellee wa s in breachof the agreement by failing to prope

rly maintain

the premises, a de

cision in which we haveconcurred. The case tried beforethe trial court was one for damages for breach of the lease in addi t ion to the holdover r

ent.We conclude that no error was committed by the trial court in this regard.

We deny Appellant’s request for an additiona l award of attorn

ey’s fees incurred in this appeal. The judgment of the trial court is affirmed and this cause remanded for any further

necessary proceedings. Costs are as s essed against th e appellant for w

hich execution may

issue if
nece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ TOMLIN, S

r. J. (Concurs)