Cite as 2023 Ark. App. 297

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-20-628

WILLIAM ANGEL, PATRICIA BELK, 

DOROTHY BROWN, ROBERT 

BROWN, ANTHONY BUGGS, JEAN 

CARTER, ALBERTA CARTWRIGHT, 

EUGENE CARTWRIGHT, FRANCES 

LOUISE CRAWFORD, BEATRICE 

EATON, QUEEN ESTER ROSS, 

PEARLIE FRANKLIN, ROSETTA 

FULLER, VERNA HICKEY, BARBARA 

MARSHALL, SHAMEKIA MARSHALL, 

NATHANIEL MARTIN, LINDA 

SANDERS, BOBBY LEE SMITH, FELISA 

STOKES, KATTIE MAE TAYLOR, 

FANNIE LEE WASHINGTON, 

MARTHA WASHINGTON, GLORIA 

WEBSTER, AND CLAUDE WILBORN 

APPELLANTS

V.

HELENA RENAISSANCE 1, L.P.; 

PIONEER PROPERTY MANAGEMENT, 

INC.; GAIL WADE; AND CORNELIUS 

BORUM

APPELLEES

Opinion Delivered May 24, 2023

APPEAL FROM THE PHILLIPS

COUNTY CIRCUIT COURT 

[NO. 54CV-18-216]

HONORABLE RICHARD L. 

PROCTOR, JUDGE

AFFIRMED IN PART; REVERSED AND 

REMANDED IN PART

BART F. VIRDEN, Judge

Several current and former tenants of the Helena Heights Apartments (Helena 

Heights), a multi-unit apartment building owned by appellee Helena Renaissance 1, L.P. 
2

(Helena Renaissance), filed a complaint in the Phillips County Circuit Court alleging that 

Helena Renaissance, appellee Pioneer Property Management (Pioneer), and appellees Gail 

Wade and Cornelius Borum breached several covenants in their lease agreements and 

“created and maintained a nuisance in the common areas of the apartment complex.” Their 

claims were based on the appellees’ alleged failure to perform duties that they assumed under 

the lease agreement, including maintaining the building in “such a condition that all health 

and safety standards are met.” The tenants chiefly complained that the appellees’ poor 

maintenance of the building exposed them to toxic levels of mold, causing them to suffer a 

myriad of allergic reactions. The appellees moved for summary judgment, arguing that the 

tenants failed to offer proof of a causal relationship between the mold in the building and 

their reported symptoms. The appellees also argued that the tenants’ other complaints about 

conditions of the building, including inoperable elevators, heat, and air conditioning, were 

not compensable under any of the claims in the complaint; and the tenants failed to offer 

proof of constructive eviction to sustain their claim for breach of the covenant of quiet 

enjoyment. The circuit court agreed and granted summary judgment on all the claims in the 

tenants’ complaint. The tenants now appeal the circuit court’s order. We affirm in part and 

reverse and remand in part.

I. Factual Background

In a complaint filed on August 16, 2018, the tenants alleged that they “were all 

residents of Helena Heights Apartments,” and each of them entered into a lease agreement 

with Helena Heights through its agent, Gail Wade, who was the regional manager for 
3

Pioneer. The tenants said that their leases incorporated the “Resident Handbook Rules and 

Regulations,” which provides that management and the tenants will cooperate to maintain 

the apartments “in such a condition that health and safety standards are met.” The tenants 

claimed that their leases also included “a third agreement under the approval of . . . [the] 

Phillips County Public Housing Agency,” which provided that “Helena Heights and its 

owners and agents ‘shall maintain the dwelling unit . . . as well as common areas.’” 

The tenants alleged, nevertheless, that they encountered “persistent issues with mold 

and mildew in common areas” as well as “unsafe and unsanitary conditions leading to 

infestations by insects and rodents, water leaks in the walls of the building, unrepaired fire 

hazards, faulty electrical systems, trip and fall hazards, and sources of carbon monoxide 

exposure.” They also said that the temperature in the apartments was occasionally “extremely 

hot or cold.” The tenants claimed that as a result of these unsafe conditions, they individually 

suffered a host of alleged maladies, including

acute respiratory infections, acute exacerbation of chronic obstructive pulmonary 

disease (COPD), shortness of breath, onset of asthma, acute irritation of existing 

asthma symptoms, hypertension, headaches, depression, anxiety, skin irritation, 

elevated blood-lead levels, insect or animal bites, nausea, vomiting, diarrhea, 

pneumonia, embarrassment at having visitors, and increased stress as a result of the 

poor maintenance and repair of the Helena Heights Apartments. 

The tenants also asserted that the appellees breached the covenants in their leases 

because they “failed to repair or replace the damaged or defective areas of the premises” and 

“failed to maintain [their] apartments in such a condition that all health and safety standards 

[were] met.” Helena Renaissance and its property managers, they said, “failed to maintain 
4

[their] dwelling units in a safe and sanitary manner in accordance with HUD’s Housing 

Quality Standards for Section 8 Housing Choice Voucher Program.” Regarding their 

nuisance claim, the tenants asserted that the appellees “engaged in conduct that created a 

condition in the common areas of the apartment building that interfered with the quiet 

enjoyment of the areas of the property that the tenants had leased and so should be termed 

a nuisance.” The appellees filed an answer and amended answers generally denying the 

material allegations in the complaint.1

On February 4, 2020, appellees Helena Renaissance, Pioneer, and Borum moved for 

summary judgment. First, they argued that summary judgment was warranted because the 

tenants, who claimed various medical issues related to the presence of mold in the apartment 

building, could not show entitlement to damages. Specifically, the appellees asserted that the 

tenants “failed to provide an expert witness qualified to link issues at Helena Heights to any 

medical issue,” and the tenants’ other complaints, including unpleasant odors and difficulty 

heating and cooling their apartments, did not “rise to a level of compensable injury under 

any of [their] five claims.” 

Alternatively, the appellees argued that summary judgment was warranted for several 

other reasons. First, they argued that three of the plaintiffs, including Anthony Buggs, Felicia 

Stokes, and Shamekia Martin, could not establish breach of the covenants in the lease or the 

 

1The complaint was serially amended to add additional plaintiffs as well as to 

incorporate the findings of Joe Henry, their expert microbiologist, who inspected the mold 

conditions at Helena Heights.
5

Resident Handbook—as the complaint alleged in claim I and claim II, respectively— because 

they never signed a lease. The remaining plaintiffs also could not establish any breach of 

those covenants, the appellees said, because the leases that they signed included addendums 

that expressly absolved Helena Heights of liability for problems arising from mold or mildew. 

The appellees further argued that claim III in the complaint, which alleged breach of the 

housing choice voucher dwelling lease and HUD’s housing quality standards, “must fail 

because there is no private cause of action under the federal law which created the Section 

8 Project-Based Voucher Program” (in which Helena Heights participated). The tenants also 

could not prevail on their claim that the appellees had breached the covenant of quiet 

enjoyment in their leases because the tenants “failed to show actual or constructive eviction” 

because of the alleged issues in the apartment building. The appellees argued that claim V

in the complaint, alleging that they created a nuisance condition in the common areas in the 

building, “has no applicability to this case based on the case law in Arkansas.” Finally, Mr. 

Borum argued that he was entitled to summary judgment because he “[was] not a party to 

any lease agreement and has no personal liability in this matter.” 

The appellees attached several signed copies of the mold and mildew addendum to 

their motion for summary judgment. The addendum provided, in pertinent part, that

[i]n consideration of the lease of the premises, Landlord shall not be responsible for 

any damages, liabilities, claims, or losses, incurred by residents or others inhabiting 

the premises arising out of or relating to mold or any other fungus or agent that may 

be associated with alleged defects in the premises, include, but not limited to, 

property damages, personal injury, adverse health effects, loss of income, emotional 

distress, death, loss of use or loss of value of the premises and resident hereby releases 

Landlord of the premises and resident hereby releases Landlord from the same. This 
6

means that the resident shall not seek to hold the Landlord responsible under any 

legal theory for any damages whatsoever caused by mold or any other agent. [2]

The tenants filed a response to the summary-judgment motion on March 25, 2020. 

First, they argued that the appellees’ claim that the tenants lacked expert testimony to prove 

damages “entirely ignores the opinions and testimony of [the tenants’] expert, Joe Henry, 

which sets forth the evidence demonstrating that conditions in the building existed that 

could lead to injuries and health issues experienced by [the tenants].” According to the 

tenants, Mr. Henry’s opinions were “more than sufficient to demonstrate that evidence of 

general causation exists in this case as to create issues of material fact,” and “[e]ven as to 

specific causation to each individual [tenant], there is sufficient evidence to allow the jury to 

reasonably conclude that the mold and mildew was a cause of the health problems [they] 

suffered[.]” 

Second, the tenants argued that the mold and mildew addendum was unenforceable 

because it was not clearly incorporated into the lease agreement and conflicted with a version 

of the mold and mildew addendum that appeared in the Resident Handbook. The 

addendum in the handbook notably did not include the exculpatory language appearing in 

the version that the appellees signed. The tenants also argued that the addendum was an 

unenforceable exculpatory clause because the circumstances surrounding its execution (for 

 

2Appellee Gail Wade did not join the motion for summary judgment or any other 

defensive pleading or motion filed in the circuit court. The record does not otherwise 

indicate, moreover, that she was served with a summons and a copy of the complaint in 

accordance with Ark. R. Civ. P. 4 (2022). Therefore, we consider the claims against her 

dismissed by application of Ark. R. Civ. P. 54(b), rather than on their merits.
7

each tenant) were unfair. Finally, the tenants asserted that genuine issues of material fact 

also remained as to “whether the addendum would apply to the entirety of a [tenant’s] given 

residency at Helena Heights” because there was proof, at least regarding one of the tenants, 

that an executed addendum was not included with a second lease agreement that she signed 

during her stay at Helena Heights. 

Third, the tenants argued that the mold and mildew addendum did not effectively 

disclaim the duty to maintain the building that the appellees collectively assumed in the 

Resident Handbook and through their participation in Low Income Housing Tax Credit 

Program, which requires the Arkansas Development Finance Authority (ADFA) to 

periodically inspect the premises to ensure compliance with uniform health and safety 

standards. In particular, the tenants asserted that the appellees “assumed [those] duties and 

responsibilities” by “virtue of their participation in the program administered by ADFA.” 

The tenants also explained that they were not claiming that ADFA’s standards created a 

private cause of action, as the appellees argued in their motion for summary judgment. 

Rather, they alleged that ADFA’s requirements “were incorporated into the lease agreement, 

and in failing to comply with those requirements, [the appellees] [were] in breach of the 

agreements.” 

Fourth, the tenants argued that summary judgment was inappropriate because 

“significant issues of fact” remained as to whether they could prove that they were 

constructively evicted for purposes of their quiet-enjoyment claims. According to the tenants, 

“there is evidence supporting a conclusion that the intolerable conditions at Helena Heights 
8

did lead some of the individual residents to abandon the property.” Finally, the tenants 

insisted that their nuisance claims were “legally cognizable,” and Mr. Borum was properly 

included in their lawsuit. In his role as the building manager at Helena Heights, Mr. Borum 

was “personally involved in the events surrounding [their] [injuries].” 

The appellees filed a reply in which they maintained, inter alia, that there was no 

genuine issue of material fact regarding specific causation, and the mold and mildew 

addendum, in any event, shielded them from liability. They attached Mr. Henry’s deposition 

in support of their argument regarding causation, pointing out that he agreed that the 

apartment building did not “have a systemic [mold] issue” and that elevated mold counts 

were present only in the apartments occupied by appellants Robert Brown and Pearlie 

Franklin Brown. The appellees also highlighted portions of Mr. Henry’s deposition in which 

he agreed that “air sampling for mold spores does not and cannot evaluate potential health 

risks,” and he would advise clients who suspected mold exposure to undergo further 

evaluation and testing. The appellees further argued that other depositions attached to the 

tenants’ response (from the tenants themselves) were insufficient to establish either general 

or specific causation. 

On August 4, 2020, the circuit court issued a letter opinion explaining its reasons for 

granting the appellees’ motion for summary judgment. First, the circuit court agreed that 

there was no genuine issue of material fact regarding causation. The court found that the 

tenants’ claims that their medical issues were related to the presence of mold was “purely 

speculative.” Specifically, the court found as follows:
9

In this case, health issues vary from another, [from] coughing [to] headache, 

and most [tenants] have different issues. Mr. Henry, [the tenants’] expert, “set forth 

evidence demonstrating that conditions in the building existed that could lead to 

injuries and health issues experienced by the [tenants].” In Mr. Henry’s deposition, 

pages 50 and 51, [it says] “that a person suspecting mold exposure is causing symptoms 

would be advised to undergo evaluation and testing and have an allergy workup.” He 

also stated “that if one removes the exposure, the symptoms should go away.” 

. . . .

With the information presented, this court cannot say that there is a question 

of fact [on] the issue of causation. Each claim of [the tenants] related to medical issues 

is purely speculative with no foundation in science or medicine. The only evidence, 

that of Mr. Henry, is, by his own words, speculative, and should be followed up by 

testing for an accurate determination. In addition, Mr. Henry states that some 

[people] are affected while others may not be affected [by mold]. The court agrees with 

Helena Heights that complaints of mold annoyance are not compensable.

The circuit court also ruled that even if there was an issue of fact as to causation, the 

mold and mildew addendum shielded the appellees from liability. The court found that the 

language in the mold and mildew addendum “is clear that there is a waiver of any 

responsibility by the landlord under [any] legal theory for damages caused by mold or 

mildew,” and the addendum “would cover the lease, the handbook, and [the] HUD lease.” 

In addition, the circuit court found that there was no remaining genuine issue of 

material fact on the tenants’ quiet-enjoyment claims. According to the court, there was “no 

factual basis on the issue of quiet enjoyment” because there were “some tenants still in the 

apartments, some [that] never signed a lease at all, and no evidence was presented to rise to 

an action on [that] issue.” The circuit court added that the tenants’ quiet-enjoyment claims 

“should also be covered by the [mold and mildew] addendum for most [tenants] and there 

would not be a remedy for those who resided there without a lease.” 
10

Regarding the tenant’s nuisance claims, the circuit court found that “the law of 

nuisance, unreasonably interfering with the use and enjoyment of the lands of another, has 

no applicability under these circumstances” because there was “(1) no substantial proof that 

the medical issues of the tenants were caused by the alleged mold; (2) no showing that the 

[appellees’] conduct was not unreasonable [sic]; and (3) no proof, but mere speculation, 

linking the actions of the [appellees] to the complaints of the [tenants].” 

The circuit court incorporated all the foregoing findings in an order dismissing the 

case with prejudice entered on August 24, 2020. The tenants now appeal that order. We 

affirm in part and reverse and remand in part. 

II. Standard of Review

“The burden of sustaining a motion for summary judgment is always the 

responsibility of the moving party.” Wade v. Bartley, 2020 Ark. App. 136, at 8, 596 S.W.3d 

555, 560. “Further, all proof submitted must be viewed favorably to the party resisting the 

motion, and any doubts and inferences must be resolved against the moving party.” Id. 

“When a movant makes a prima facie showing of entitlement, the respondent must meet 

proof with proof by showing a genuine issue as to a material fact.” Id. “Summary judgment 

is not proper, however, where evidence, although in no material dispute as to actuality, 

reveals aspects from which inconsistent hypotheses might reasonably be drawn and 

reasonable minds might differ.” Id. Indeed, “[t]he object of summary-judgment proceedings 

is not to try the issues, but to determine if there are any issues to be tried[.]” Id. “[I]f there is 

any doubt whatsoever, the motion should be denied.” Id. 
11

III. Discussion

To quote the appellants’ brief: “Appellants are a group of over twenty elderly lowincome people who are living, or who lived, in an apartment building at 217 Biscoe Street, 

Helena, Arkansas, known as ‘“Helena Heights.’” From the evidence in the case, the 

conditions in which they were living could be described as appalling. The question presented 

in this case below and now to our court is this: can the tenants seek legal redress for those 

conditions? It is significant and will be further explained in this opinion that the appellants, 

plaintiffs below, were some twenty-four individuals, each suing in his or her own right. While 

they certainly allege similar and overlapping claims, this is not a class-action lawsuit, and if 

one or more of the plaintiffs’ claims cannot be sustained, it does not defeat the claims of the 

others. Therefore, each claim must be examined separately.

As such, we preliminarily affirm the circuit court’s dismissal of the breach-of-contract 

claims alleged by appellants Anthony Buggs, Shamekia Martin, and Felicia Stokes. There is 

no evidence in the record that those three plaintiffs paid rent, signed a lease, or otherwise 

could state a claim that the covenants in the lease were breached.3See Elsner v. Farmers Ins. 

Grp., Inc., 364 Ark. 393, 395–96, 220 S.W.3d 633, 635–36 (2005).

A. Causation – Breach of Contract

We now turn to the remaining tenants’ breach-of-contract claims. First, they argue 

that the circuit court erred when it determined that the testimony of a medical expert was 

 

3Anthony Buggs testified, in fact, that he “never signed a written lease agreement or 

[made] any rental payments to [the] Helena Heights Apartment[s].” 
12

necessary to raise a question of fact regarding “specific causation” or, in other words, whether 

the tenants’ exposure to mold caused the illnesses that they claimed in their complaint. They 

say that the relationship between mold and respiratory symptoms would be well within the 

common knowledge of a jury or, alternatively, that Joe Henry’s expert testimony was 

sufficient to establish the causal relationship. The appellees respond that the tenants cannot 

establish causation without expert testimony establishing (1) the type and levels of mold that 

are generally harmful to humans (general causation); and (2) that the tenants’ alleged injuries 

were, in fact, caused by exposure to harmful levels of mold (specific causation). 

The appellees point us to Richardson v. Union Pacific Railroad Co., 2011 Ark. App. 562, 

at 3, 386 S.W.3d 77, 80, a toxic-tort case, in support of their argument that the circuit court’s 

order should be affirmed. In Richardson, we agreed that a plaintiff claiming damages from 

exposure to a toxic substance “must adduce evidence of both general and specific causation.” 

Id. General causation, we said, “addresses whether a particular agent can cause a particular 

illness,” while specific causation “addresses whether that agent in fact caused the particular 

plaintiff’s illness.” Id. at 3–4, 386 S.W.3d at 80. Applying these definitions, we held that 

causation in toxic-substance cases “requires more than mere proof of exposure to aboveambient levels of the alleged toxin, and instead requires evidence of the levels of exposure 

that are harmful to human beings generally, as well as the plaintiffs’ actual level of exposure 

to the defendant’s toxic substance.” Id. at 2–3, 386 S.W.3d at 79. We ultimately upheld the 

circuit court’s order granting summary judgment because the appellant did not provide 
13

reliable expert testimony that his cancer had been caused by exposure to benzene while he 

was a railroad employee.

While the circuit court did not cite Richardson in its letter opinion as authority for its 

grant of summary judgment, it is clear from the letter opinion that the circuit court relied 

on Richardson for its reasoning. We must recall the specific causes of action set forth by the 

plaintiffs. The plaintiffs alleged five causes of action. Four of the causes of action were based 

on breach of covenants in the lease agreement, and the fifth cause of action was for nuisance. 

It is not a matter of semantics to note that the plaintiffs did not allege any cause of action 

sounding in tort, much less toxic tort, against Helena Heights. As such, Richardson is 

inapposite here, and the circuit court’s analysis of, and reliance on, Richardson was in error. 

Further, we have held that a circuit court errs when it grants summary judgment on a breachof-contract claim because proof of causation was lacking. See Crumpacker v. Gary Reed Constr., 

Inc., 2010 Ark. App. 179, at 4, 374 S.W.3d 162, 164. Indeed, nominal damages may be 

recovered “for a breach of contract unaccompanied by any actual damage,” W. Union Tel. Co. 

v. Aubrey, 61 Ark. 613, 33 S.W. 1963 (1896), and in our view, the possibility of an award of 

nominal damages is sufficient to preclude summary judgment in this case. See Glenn v. 

HealthLink HMO, Inc., 360 S.W.3d 866, 872 (Mo. Ct. App. 2012). Because of our decision, 

we need not discuss the specifics and intricacies of what damages might be available to 

individual tenants as the result of a breach of covenants set forth in the complaint. Therefore, 

we reverse and remand the circuit court’s order granting summary judgment to the 

remaining appellees. 
14

B. The Mold and Mildew Addendum

Because we are reversing and remanding to the circuit court the causes of action for 

breach of contract, we must address the mold and mildew addendum that was included in 

the lease agreement. The tenants argue that the appellees cannot avail themselves of the mold 

and mildew addendum as a shield to their contractual responsibilities because they expressly 

assumed the duty to maintain the apartment building in a “healthful condition” through 

covenants in the lease. They also argue—apparently in the alternative—that the appellees 

implicitly assumed a duty to maintain the premises in a healthful condition when they 

attempted to repair the causes of wet conditions that were favorable to mold as well as any 

mold that later developed.4 The tenants further contend that the addendum was an 

unenforceable exculpatory clause because the circumstances surrounding its execution (for 

each tenant) suggest that they did not know the potential liability that was released. In 

 

4The tenants also offhandedly suggest that the circuit court erred when it granted 

summary judgment on their claims against Cornelius Borum because “an individual 

employed by a corporation [who is] personally involved in the events surrounding an injury 

. . . may be sued.” Mr. Borum was personally involved, they say, because he attempted (and 

ultimately failed) to repair the poor conditions alleged in their complaint. We reject this 

argument. While Mr. Borum’s signature appears on a lease renewal (and mold and mildew 

addendums,) he was not a party to the lease agreements and, therefore, cannot be liable for 

breaching it. “Arkansas recognizes the general rule that where an agent names his principal 

and does not exceed his authority when contracting on the principal’s behalf, the agent is 

not personally liable upon the contract unless the agent agrees to be.” McCullough v. Johnson, 

307 Ark. 9, 11, 816 S.W.2d 886, 887 (1991). The tenants do not make any argument here 

that Mr. Borum agreed to be personally liable. Similarly, they make no argument regarding 

the personal liability of appellee Pamela Wade, the property manager at Helena Heights. 

Thus, we affirm the dismissal as to Borum and Wade. Thus, we affirm the dismissal of 

Borum.
15

response, the appellees argue that they did not assume any duty to keep the apartment 

building free of mold and, in fact, “specifically disclaimed any responsibility for the presence 

of mold” in the mold and mildew addendum. 

We agree with appellees that, with certain exceptions, landlords generally do not have 

the common-law duty to repair or maintain leased premises. A landlord may contractually 

agree to repair or maintain leased premises, however, and that is what the lease agreement 

herein provides. In reviewing the lease agreement, we agree with the tenants that the 

appellees expressly assumed the duty to repair mold conditions in the mold and mildew 

addendum itself, and the exculpatory clause, which purports to release the appellees from 

liability under “any legal theory,” is unenforceable. Therefore, we hold that the circuit court 

erred when it determined that the tenants waived the appellees’ liability for the alleged 

breaches of the covenants in the lease. 

Arkansas has long recognized the common-law doctrine of caveat lessee, which 

provides that “unless a landlord agrees with his tenant to repair leased premises, he cannot, 

in the absence of statute, be compelled to do so or be held liable for repairs.” Hurd v. Hurt, 

2017 Ark. App. 228, at 4, 519 S.W.3d 710, 712. The state of Arkansas law regarding tenants’ 

rights is summarized by Professor Howard Brill in his treatise Arkansas Law of Damages, 

where he writes as follows:

The Arkansas Residential Landlord-Tenant Act of 2007 modified the common law 

but does not place upon the landlord a duty of habitability to provide minimum living 

standards. Arkansas may be the only state not to impose such a requirement. In 

contrast with the Uniform Act that formed the basis for the Arkansas statute, the law 

removes most reciprocal obligations of the landlord. For example, although a tenant 
16

must keep his unit clean and safe, the landlord has no corresponding obligation to 

keep the common areas in the same condition. The tenant must use plumbing, 

electrical, sanitary, and other fixtures in a reasonable way; however, the landlord has 

no duty to maintain them. The Act has a section of landlord remedies, but no section 

on tenant remedies. Thus, Arkansas has maintained a strict application of the 

common law of caveat lessee, placing almost no burden on the landlord to provide 

for the safety, sanitation, or condition of the leased property. 

1 Howard W. Brill and Christian H. Brill, Arkansas Law of Damages § 25.1 (6th ed. 2014). 

Indeed, the caveat lessee doctrine remains codified in Arkansas Code Annotated section 18-

16-110 (Repl. 2015), which provides as follows:

No landlord or agent or employee of a landlord shall be liable to a tenant or a 

tenant’s licensee or invitee for death, personal injury, or property damage proximately 

caused by any defect or disrepair on the premises absent the landlord’s:

(1) Agreement supported by consideration or assumption by conduct of a duty to 

undertake an obligation to maintain or repair the leased premises; and

(2) Failure to perform the agreement or assumed duty in a reasonable manner.

In this case, we do not need to look further than the mold and mildew addendum 

itself to determine that the appellees agreed to maintain the apartment building in a manner 

that kept it free from mold. While the addendum obligates the tenants to perform simple 

tasks (such as running bathroom fans and opening windows), it also makes it rather clear 

that the appellees will undertake repairs of mold conditions that are beyond the tenants’ 

control. Specifically, the addendum provides that a tenant must 

notify the landlord immediately of any circumstances involving excess moisture or 

water leakage such as plumbing leaks or drips, sweating pipes of toilet tanks, as well 

as any overflows in the bathroom, kitchen, or laundry facilities (if applicable), 

especially in cases where the overflow may have permeated walls, floors, carpeting, or 

other floor coverings or cabinets.
17

Additionally, tenants must “notify the landlord of any mold growth on surfaces inside the 

dwelling unit that cannot be removed or controlled by the tenant.” The tenants also agreed 

to “allow the landlord to enter the dwelling unit to inspect and make any necessary repairs.” 

(Emphasis added.) Several residents testified, moreover, that the appellees attempted to make 

repairs to control the moisture in their respective apartments. Therefore, we conclude the 

appellees entered into an agreement to make mold-related repairs.

Additionally, the appellees, having assumed that duty by agreeing to make moldrelated repairs, cannot rely on the exculpatory clause to disclaim liability for breaching it. In 

Arkansas, exculpatory contracts are typically used to “absolve [parties] in advance for the 

consequences of [their] own negligence,” and as such, they “are not favored by the law.” 

Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 148–49, 207 S.W.3d 525, 530 (2005). 

The disfavor “is based upon the strong public policy of encouraging the exercise of care”;

therefore, “they are to be strictly construed against the party relying on them.” Id. 

Exculpatory clauses must also have the essential elements of a contract, including (1) 

competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; and (5) 

mutual obligations.” Id. at 152–53, 207 S.W.3d at 533. Mutuality of obligation means “that 

an obligation must rest on each party to do or permit to be done something in consideration 

of the act or promise of the other; thus, neither party is bound unless both are bound.” Id. 

at 153, 207 S.W.3d at 533. “A contract, therefore, that leaves it entirely optional with one 

of the parties as to whether or not he will perform his promise would not be binding on the 

other.” Id. 
18

The exculpatory clause in the mold and mildew addendum is sweeping in its scope, 

and it disclaims liability for more than negligent conduct. It provides, in fact, that “the 

[tenant] shall not seek to hold the landlord responsible under any legal theory for any damages 

whatsoever caused by mold or any other agent.” (Emphasis added.) 

Courts in other jurisdictions have invalidated similar exculpatory clauses for lack of 

mutuality of obligation. The Illinois Supreme Court’s decision in Jewelers Mutual Insurance

Co. v. Firstar Bank Illinois, 820 N.E.2d 411 (Ill. 2004), is particularly instructive. In that case, 

diamonds and loose jewelry were stolen from three safety-deposit boxes that Firstar Bank 

leased to jewelry dealers. The safety-deposit-box agreements provided that the relationship of 

the parties was that of landlord and tenant, as opposed to bailor and bailee. The agreement 

also contained the following exculpatory clause:

It is understood that said bank has no possession or custody to, nor control over, the 

contents of said safe and that the lessee assumes all risks in connection with the 

depositing of such contents, that the sum mentioned is for the rental of said safe 

alone, and that there shall be no liability on the part of said bank, for loss of, or injury to, the 

contents of said box from any cause whatever unless lessee and said bank enter into a special 

agreement in writing to that effect, in which case such additional charges shall be made 

by said bank as the value of the contents of said safe, and the liability assumed on 

account thereof may justify. The liability of said bank is limited to the exercise of ordinary 

care to prevent the opening of said safe by any person not authorized and such opening by 

any person not authorized shall not be inferable from loss of any of its contents. 

Id. at 412–13 (emphasis added). None of the jewelers entered the “special agreement” 

mentioned in the exculpatory clause, and Jeweler’s Mutual Insurance Company, which 

insured two of the boxes, sued Firstar for breach of contract and negligence. Id. at 413. 

Relying on the exculpatory clause, the bank successfully moved for summary judgment.
19

The Illinois Supreme Court ultimately reversed the lower court’s order granting 

summary judgment. The court observed that the exculpatory clause was ambiguous because 

in the first sentence, “the [bank] disclaims liability for any loss whatsoever,” and in the second 

sentence, “defendant assumes one particular liability.” Id. at 415. That is, the bank “must 

exercise ordinary care to prevent unauthorized persons from accessing the box.” Id. The 

supreme court went on to hold, however, that 

[w]hatever the meaning of the exculpatory clause, it clearly cannot be applied to a 

situation in which [the bank] is alleged to have breached its duty to exercise ordinary 

care to prevent unauthorized persons from opening the box. This is a specific duty 

that [the bank] assumed in the contract, and it formed the heart of the parties’ 

agreement. A party cannot promise to act in a certain manner in one portion of a contract 

and then exculpate itself from liability for breach of that very promise in another part of the 

contract.

Id. at 415–16 (citations omitted) (emphasis added); see also Com. Movie Rental, Inc. v. Larry 

Eagle, Inc., 738 F. Supp. 227, 230 (W.D. Mich. 1989) (holding that the contract at issue was 

“void for lack of mutuality because it completely exempts Commercial from all liability for a 

breach”).

We find the Illinois Supreme Court’s opinion persuasive here. The appellees, having 

agreed to make mold-related repairs in the manner that we described, could not validly 

disclaim any liability for breaching that agreement. Accordingly, we hold that the exculpatory 

clause in the mold and mildew addendum is unenforceable. 

C. Quiet Enjoyment

The lease agreement between the tenants and the appellees expressly includes a 

covenant of quiet enjoyment. The lease provides, in pertinent part, that “landlord covenants 
20

and agrees with [the] tenant that upon the tenant paying rent, and observing and performing 

all of the terms, covenants and conditions on [the] tenant’s part to be observed and 

performed under this Lease, [the] tenant may peaceably and quietly enjoy the premises, 

subject nonetheless to the terms and conditions of this lease.” In addition, the law in 

Arkansas is clear that every residential lease has an implied covenant of quiet enjoyment. See 

Walnut Ridge Golf Club, Inc. v. City of Walnut Ridge, 2010 Ark. App. 372, at 7, 375 S.W.3d 

679, 683. That is only the beginning of the inquiry. What is covered by the implied or explicit 

promise? And most significant, must the tenant be evicted—actually or constructively—for the 

promise to be breached? 

Arkansas law does not provide much guidance on whether constructive eviction is 

necessary for a lessee to maintain a cause of action for breach of the covenant of quiet 

enjoyment in a lease. Our supreme court has addressed the issue in the context of warranty 

deeds, holding that “with some exceptions (not applicable here), the rule is that an action 

for damages on breach of a covenant of quiet enjoyment cannot be maintained where there 

has been no eviction,” Riddle v. Udouj, 371 Ark. 452, 457, 267 S.W.3d 586, 590 (2007)

(quoting Thompson v. Dildy, 227 Ark. 648, 651, 300 S.W.2d 270, 272 (1957)), and the 

suggestion that the rule should be applied to the landlord-tenant relationship has appeared 

only in Justice Fogelman’s dissenting opinion in Trace X Chemical, Inc. v. Highland Resources, 

Inc., 265 Ark. 468, 476, 579 S.W.2d 89, 93 (1979) (Fogelman, J., dissenting). The circuit 

court apparently had the view that a breach does not occur unless a tenant is forced to 
21

abandon the premises, and the appellants do not appear to take issue with that conclusion 

here.

Rather, the tenants confine their argument to the sufficiency of their proof, arguing 

that several of them offered deposition testimony that the conditions at Helena Heights 

forced them to leave their apartments. We agree. The circuit court here broadly granted 

summary judgment on all the tenants’ claims because there were “some tenants still in the 

apartments . . . and no evidence was presented to rise to an action on [the quiet enjoyment] 

issue.” (Emphasis added.) The court apparently took an all-or-nothing approach, treating this 

case as though it was filed as a class action. It was not. Several of the tenants, in fact, alleged 

that they were forced to leave their apartments due to the unhealthy conditions. Accordingly, 

we reverse and remand so that the circuit court may address each tenant’s claims individually. 

D. Nuisance

Finally, the tenants argue that the circuit court erred by granting summary judgment 

on their nuisance claim. They assert that a person creates a nuisance if he or she “uses, and 

employs, his own property in such an unwarrantable and unreasonable manner as to annoy, 

injure, or endanger the comfort, repose, health, or safety of another in the use of his 

property,” and they insist they came forward with evidence demonstrating a remaining 

genuine issue of material fact on whether the appellees created a nuisance by allowing 

“conditions for mold and insects to flourish.” The appellees respond that the tenants’ 

allegations failed to state a cause of action for nuisance because “the law of nuisance has no 

applicability to a landlord-tenant relationship.” 
22

The appellees are correct; however, the court was misguided in its findings. The 

circuit court rejected the nuisance claim on a finding that the tenants failed to offer proof 

supporting the elements of the claim. Nevertheless, we “may affirm a circuit court where it 

has reached the right decision, albeit for the wrong reason, so long as the issue was raised 

and the record was developed below,” Ark. State Bd.of Election Comm’rs v. Pulaski Cnty. Election 

Comm’n, 2014 Ark. 236, at 12, 437 S.W.3d 80, 87, and, as indicated above, the appellees 

argued in their motion for summary judgment that the law of nuisance does not apply to the 

landlord-tenant relationship.

Arkansas defines a nuisance as “conduct by one landowner that unreasonably 

interferes with the use and enjoyment of the lands of another and includes conduct on 

property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of a nearby 

property.” Aviation Cadet Museum v. Hammer, 373 Ark. 202, 207, 283 S.W.3d 198, 203 (2008) 

(emphasis added). This definition plainly does not include the type of nuisance claim that 

the tenants advanced in the complaint, in which they alleged nuisances affecting their use 

and enjoyment of the same property owned by the offending landowner—here Helena 

Renaissance. 

Our view is in accord with other jurisdictions that have held that a tenant cannot 

raise a cognizable nuisance claim against his or her landlord. In Wiesman v. Hill, 629 F. Supp.

2d 106 (D. Mass. 2009), for example, a resident of a public housing project filed a complaint 

against the housing authority that owned her apartment building as well as several housingauthority employees. Among other things, the complaint alleged a nuisance claim against 
23

the defendants for failing to abate the behavior of a disruptive neighbor. The district court, 

applying Massachusetts law, dismissed the claim because “a nuisance claim requires two 

separately owned parcels of real property.” Id. at 114. More particularly, “a tenant cannot sue 

her own landlord for a nuisance on the property that the tenant rents from the landlord.” 

Id. (internal citation and quotation marks omitted). Rather, “a suit for breach of the covenant 

of quiet enjoyment is the proceeding a tenant may bring against her landlord for interference 

with the use and enjoyment of the rented property.” Id. 

A more recent decision from the United States District Court for the District of 

Kansas is consistent with Weisman. In Coe v. Cross-Lines Retirement Center, Inc., ___ F. Supp.

3d ___, 2022 WL 17555300, at *5 (D. Kan. Dec. 9, 2022), the district court dismissed 

nuisance claims brought by tenants of an apartment complex that catered to senior citizens. 

The court observed that “the vast majority of courts,” including the Third Circuit and the 

Tenth Circuit, “have held that an action for private nuisance is designed to protect 

neighboring landowners from conflicting uses of property” Id. at *4. The court also summarized 

its reasoning for dismissing the tenants’ nuisance claims in the following instructive manner:

The court believes that the Kansas Supreme Court would likely adopt the reasoning 

of most courts in determining that an action for private nuisance is unavailable to 

tenants against their landlords. In arriving at this conclusion, the court agrees with 

the Third and the Tenth Circuits’ reasoning that nuisance law historically is meant 

to regulate conflicts between neighboring or at least separate land uses, not issues 

originating on one’s own property. Plaintiffs, as tenants, are not otherwise powerless 

against [the] defendants as a landowner would be against a neighbor. Negotiation, 

withholding rent, and suing under any number of recognized theories available to 

tenants against landlords . . . are perfectly available to them. Adding private nuisance 

to the list of available actions would be needlessly cumulative while endangering 
24

future lessors with liability for purposely leasing cheap premises which openly come 

with defects. 

Id. at *5. Therefore, because Arkansas defines a private nuisance in the same manner as the 

“vast majority” of other courts, and that definition has been persuasively applied to exclude 

tenants’ nuisance claims against their landlords, we affirm the circuit court’s order on this 

point.

IV. Conclusion

We affirm the circuit court’s order of summary judgment in dismissing the tenants’ 

claims for damages for nuisance. Except as to the three tenants noted above, we reverse the 

order of summary judgment on the tenants’ breach-of-contract claims.

Affirmed in part; reversed and remanded in part.

THYER and HIXSON, JJ., agree.

David A. Hodges, for appellants.

Munson, Rowlett, Moore & Boone, P.A., by: Mark S. Breeding and Zachary Hill, for 

appellees.