FILED

November 23, 1998

Cecil Crowson, Jr.

Appellate Court

Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

WESTWOOD GROUP PARTNERSHIP, ) ROANE CIRCUIT

 ) C.A. NO. 03A01-9805-CV-00155

 )

 Plaintiff-Appellee )

 )

vs. )

 ) HON. RUSSELL E. SIMMONS, JR.

 ) JUDGE 

 )

DAVID L. MOORE, M.D., )

 )

 Defendant-Appellant ) AFFIRMED AND REMANDED

 

BARBARA W. CLARK, Moore & Clark, P.C., Knoxville, for Appellant.

DAIL R. CANTRELL, Cantrell, Pratt & Varsalona, Clinton, for

Appellee.

O P I N I O N

McMurray, J.

T h i s a ppeal involves a commercial lease dispute between the

Westwood Group Partnership (the lan dlord) and Dr. David L. Moore

(the tenant). Each party sued the other for breach of the lease

agreement. After a bench trial, the trial cour t ruled th at the

tenant breached the lease by not paying the rent, and awarded the

landlord rent payments, late fees and attorney's fees in the total
2

amount of $5,390.00. The tenant appea ls th is ruling. We affirm

the judgment of the t rial court and agree with the appellee that

this is a frivolous appeal.

I n November of 1994, the parties entered into a lea s e

agreement whereby the tenant agreed to lease certain pro perty i n

Roane County. The term of the lease was from January 1, 1995

through January 1, 1998, "unless terminated sooner or extended as

prov ided herein." The lease provided for rent in the am ount o f

$800 per month for the year 1995 , and further provided that "for

e a c h calendar year thereafter for the duration of this Lease

Agreement, the rent shall increase by an amount not to exceed six

percent (6%) per year." The lease provided a late fee of forty

dollars "in the event any ins tallment o f rent is paid more than

Twenty-five (25) days late." The lease also provided that in the

event of litigation, "the prevailing party shall be entitled to all

c osts incurred in connection with such action, includi ng a

reasonable attorney's fee." 

I n 1996 the rent increased to $848 per month, which the tenant

apparently paid without incident. In 1997 the rent increased to

$898 per month. The landlord presented the testimony of Ms. Janie

Alcorn, its co-owner and manager. Alcorn testified that the tenant

paid $848 in January and February of 1997. The tenant paid the
3

additional $100 due for those two months after the landlord's

attorney sent hi m a le tter requesting payment. Alcorn testified

that the tenant sent $848 for rent in March, April and May of 1997.

He stopped paying rent altogether in June.

On June 10, 1997, the tenant sent a letter which stated, "We

have contacted you many time [sic] regar ding the air conditioner

not working an d you have refused to repair it. You leave us no

choice but to stop paying rent until it is repaired." On June 30,

1997, the landlord sent the tenant a termination letter, citing the

tenant's "constant failure to pay the proper rent and late fees."

The letter provided the tenant with sixty days to vacate the

property. The tenant vacated the property on September 1, 1997.

The tenant argued at trial that the landlord refused to repair

the air conditioning unit, leaving it unbearably hot in the

building, which he used for a medical clinic. The lease provides

the following regarding air conditioning: "Lessor agrees to provide

for purchase and installation of suitable hv ac a nd appropriate

ducting, thermostat(s), and registers required to keep said office

space comfortable according to Federal heating and cooling

guidelines. " The tenant testified as follows regarding the air

conditioning unit:
4

I t has never been able to cool that office to any degree

that on the hot days it would not be detrimental to some

o f our patients' health. And I have sent a letter. I

have had Sharon call th em on multiple occasions. They

have been in there. They have agreed that it's hot. And

they have refused to repair it.

The tenant testified that since the landlord would not repair

the unit, he called Craze Brothers Heating and Air himself to have

it repaired. The tenant stated that he paid Craze Brothers' bill

for fixing the air conditioning.

The tenant presented the testimony of his employee, Ms. Sharon

Price, who testified that the air conditioning would go down on hot

days, that it was very hot in the office, and that they called

Craze Brothers on several occasions. Price testified that she

called the landlord's beeper number on several occasions, and one

o f the owners would call back within two hours. She stated that on

one occasion an owner came to the office, looked at the unit and

suggested that they change the filter. Price did not testify that

any of the owners ever refused to have the air conditioning fixed.

Alcorn testified that the tenant called on several occasions

complaining about the air conditioning. She further testified as

follows:

Q : O k ay. And what did you—what did you do

after they called you about the air

conditioning?
5

A: W e al ways w ent over there. Either m y

husband or my sister or somebody else

would go ov er the re. And we always

called air conditioning people, and they

would come immediately. 

Q : Who are the air conditioning people?

A : Craze Brothers in Oliver Springs.

Q : Whe n you went over to examine the a i r

conditioning system, what did you see?

A: Most of the time, my husband would check

it. And they would have a filter that

had been in there for months, a nd it

would be clogged up. And so that left

the air conditioning not being efficient,

not cooling efficiently. So once you

changed the filter, then everything

works.

The landlord presented the testimony of Terry Craze, owner of

Craze Brothers. Craze testified that the y were called approximately three times to work on the air conditi onin g system. He

stated that the first time was in June of 1996. On that occasion,

the only p roblem w ith the system was a dirty filter. Craze

testified the second time they were called, there was no power to

the system because of "a blown fuse in the relay, transformer."

After they "spliced the fuse link and tur ned the air back on,"

there were no further problems. On the third occasion, they found

a burned-out transformer. Craze further testified as follows:

Q : Okay. Tell me a lit tle bit about the

system installed in the leased premises.

Can the system that's installed there
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handle the square footage for that

building?

A : Yes, sir, it can. That is a two and a

half ton air conditioning system.

Approximate square footage of that

building is around 1200 square feet.

That two and a half ton syst em sh ould

handle up to 1500 square feet.

Q : M r . Cr aze, are you at all familiar with

the Federal Heating and Cooling Guidelines?

A: Somewhat.

Q : D o you know whether your professional

expertise in that building meets the

Federal Heating and Cooling Guidelines?

A : Yes, it does.

* * * *

Q : D i d th e defendant and his agents or employees ever tell you anything that they

did with that air conditioning system

that in your professional opinion could

have hurt it?

A : The girls instructed me that they were

turning the air conditioning completely

off at night and then bringing it—turning

it back on during the daytime sometimes.

Q : How would that affect a[n] air

conditioning system—this air conditioning

system?

A: I t would cause a load o n the buildin g

depending on what time they turned the

air conditioning system back on. If they

turned it on when it got to a warm point

o f the day, it would cause it to overwork

the system.
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Finally, Craze testifi ed that the landlord paid all of the

Craze Brothers' bills for repairing the air conditioning, and that

t o his knowledge, the tenant had not paid any of the repair bills.

The landlord also presented the testimony of Ms. Renee

Ruffner, who leased a portion of the same building lease d by the

tenant and was his next-door neighbor. She testified that she was

i n the clinic f requently , and that her son went to the clinic

weekly for all erg y shots from May through July of 1997. She

testifie d t hat there was never a time that she went into the

tenant's leased premises when it was uncomfort ably w arm. She

testified that she never heard anyone complain about the heat, and

that she did not have problems with her heating system.

From our review of the record, and the conflicting testimony

outlined above, it is clear that the resolution of this case turns

almost ent irel y upon determinations of the credibility of witnesses. "Where the issue for decision depends upon the determination of credibility of witnesses, the trial court is the best judge

o f credibility, a nd its findings will be given great weight."

Gotwald v. Gotwald , 768 S.W.2d 689, 697 (Tenn. App. 1988). "On an

issue which hinges on witness credibility, [the trial court] will

not be reversed unless, other than the oral testimony of the

witnesses, there is found in the record clear, concrete and
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convincing evidence to the contrary." Tenn essee Valley Kaolin v.

Perry , 526 S.W.2d 488, 490 (Tenn. App. 1974).

Obviously, the trial court found the landlord's witnesses more

credible than those presented by the tenant. We defer to the trial

court's assessment of credibility. Even without an assessment of

credibility on our part, we find t hat th e evidence clearly

preponderat e s in favor of the trial court's conclusion that the

landlord promptly had the air conditioning repaired ea ch tim e it

was notified of a problem, and that the tenant breached the lease

by not paying the proper amount of rent in timely fashion. 

The appellee-landlord argues that this appeal should be judged

frivolous and it should be awarded the costs of defending this

appeal. In Liberty Mutual Ins. Co. v. Taylor , 590 S.W.2d 920, 922-

2 3 (Tenn. 1977), the Supreme Court responded to an appell ee' s

request for a finding of a frivolous appeal as follows:

W e agree with appellee that t he a ppeal had no

reasonable chance of success. The material issues raised

by the appeal were issues of fact and there clearly was

material evidence to support the trial judge's findings

on those issues. 

The Taylor court's description of that appeal could fairly be

applied to the present appeal with equal accuracy. 
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The judgment of the trial court is affirmed in its entirety.

The case is remanded with instructions to ascertain and award the

appellee its reasonable costs associated with defe nding this

appeal. 

_ _ ________________ ________ _

Don T. McMurray, Judge

CONCUR:

____________________________________

Houston M. Goddard, Presiding Judge 

___________________________________

Herschel P. Franks, Judge
IN THE COURT OF APPEALS

AT KNOXVILLE

WESTWOOD GROUP PARTNERSHIP, ) ROANE CIRCUIT 

 ) C.A. NO. 03A01-9805-CV-00155

 )

 Plaintiff-Appellee )

 )

vs. )

 ) HON. RUSSELL E. SIMMONS, JR.

 ) JUDGE 

 )

DAVID L. MOORE, M.D., )

 )

 Defendant-Appellant ) AFFIRMED AND REMANDED

JUDGMENT

This app eal came on to be heard upon the record from t h e

Circuit Court of Roane County, briefs and argument of counsel.

Upon consideration thereof, this Court is of the opinion that there

was no reversible error in the trial court.

The judgment of the trial court is affirmed in its entirety.

The case is remanded with instructions to ascertain and award the

appellee its r easona ble costs associated with defending this

appeal. Costs of the appeal are assessed to the Appellant.

 PER CURIAM