Winn-Dixie Montgomery Leasing, LLC v. First Real Estate, Inc.

Filing 58

MEMORANDUM OPINION AND ORDER granting 44 Motion for Partial Summary Judgment. See Order for details. Signed by Chief District Judge Louis Guirola, Jr. on 9/20/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
WINN-DIXIE MONTGOMERY LEASING, LLC
v.

PLAINTIFF

CAUSE NO. 1:16CV394-LG-RHW

FIRST REAL ESTATE, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is the [44] Motion for Partial Summary Judgment
filed by the plaintiff, Winn-Dixie Montgomery Leasing, LLC. Winn-Dixie seeks a
declaration that it has a right under its lease with the defendant, First Real Estate
Inc., to repair the roof and abate rent for its store premises in Picayune, Mississippi.
First Real Estate has filed a response, and Winn-Dixie has replied. After due
consideration of the parties’ submissions, it is the Court’s opinion that the legal
question at issue in this Motion should be resolved in favor of Winn-Dixie.
Accordingly, the Motion will be granted.
BACKGROUND
Winn-Dixie filed an amended complaint for declaratory judgment, specific
performance, and damages under 28 U.S.C. § 2201 and Fed. R. Civ. P. 57. The
amended complaint concerns a lease agreement between Winn-Dixie and First Real
Estate last amended in 1992 for premises at the Pearl River Shopping Center in
Picayune, Mississippi. The complaint alleges that First Real Estate defaulted on its
lease obligations by failing to repair the parking lot, roof, and pylon sign on the
premises. (Am. Compl. 2, ECF No. 10). Winn-Dixie seeks a declaration of the

default regarding repairs to the parking lot, roof, and pylon sign, and its rights to
make repairs and deduct repair expenses from rental payments otherwise due to
First Real Estate.
DISCUSSION
This Motion concerns only the roof portion of Winn-Dixie’s claim. Winn-Dixie
argues that the lease term governing maintenance and repair of the roof is
unambiguous, with the result that it has the legal right to repair the roof and abate
rent in an equal amount.
It first appeared that in addition to this legal issue, Winn-Dixie presented a
factual question of whether First Real Estate had failed to make adequate repairs to
the roof. It argued that the roof is beyond its useful life, repairs have been
inadequate, and therefore Winn-Dixie is entitled to make repairs and abate rent.
(Pl. Mem. 2, ECF No. 45). Winn-Dixie attached the 2015 report of Guy Roofing,
indicating that a full replacement of the deteriorated roof was desirable, as “repair
attempts may result in a waste of valuable assets with little return on the
investment.” (Pl. Mot. Ex. B 8, ECF No. 44-2). Winn-Dixie also attached a 2017
evaluation by a roofing consultant who recommended re-application of the
elastomeric coating. (Pl. Mot. Ex. C 4, ECF No. 44-3).
After First Real Estate engaged the question of the adequacy or necessity of
roof repairs in its response, Winn-Dixie reiterated that it only sought to establish
the legal issue of whether the lease gave it the right to repair the roof at no expense

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to itself.1 As to this narrow legal question, there is no dispute. First Real Estate
concedes that “the language of the Lease plainly states, ‘Landlord shall, at its cost
and expense, keep and maintain in good condition and repair . . . the exterior of
Tenant’s store building, including the roof.’” (Def. Response 4, ECF No. 45).
Additionally, the Court notes the language allowing Winn-Dixie to make repairs
and abate rent payments in the circumstances it alleges in this case:
[I]f the Landlord after receipt of notice as above provided fails or
neglects to make with all due diligence such other repairs . . . which
are the responsibility of the Landlord, the Tenant shall have the right
to make such repairs and to deduct from the rental installments then
due or thereafter to become due such sums as may be necessary to
reimburse the Tenant for the money expended or expense incurred by
it in making such repairs.
(Pl. Mot. Ex. A1, at 7, ECF No. 44-1).
Thus, the unambiguous terms of the lease require First Real Estate to keep
the roof in good repair and if it does not do so, then Winn-Dixie may make necessary
repairs and deduct the cost from its rent payments. Whether any of these
conditions can be proven to exist as a matter of fact is not at issue at this time. The
Court holds only that Winn-Dixie is entitled to the declaration it seeks regarding
the terms of the lease.
IT IS THEREFORE ORDERED AND ADJUDGED that the plaintiff’s [44]
Motion for Partial Summary Judgment is GRANTED.

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“Winn-Dixie is not requesting that the Court make a factual determination
regarding the condition of the roof and the actions of the parties relative to the
terms of the lease. Instead, Winn-Dixie is requesting only that the Court declare
the terms of an unambiguous lease.” (Pl. Rebuttal 1, ECF No. 54).
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IT IS FURTHER ORDERED AND ADJUDGED that the lease agreement
between the parties provides that:
1) Defendant has an obligation to keep and maintain, in good condition
and repair, the exterior of Plaintiff’s store building, including the roof;
2) if Defendant fails to make necessary repairs after proper notice,
Plaintiff is entitled to make or cause necessary repairs to be made tothe roof; and
3) Plaintiff is entitled to deduct from the rental installment payments
required under the Lease the sum as may be necessary to reimburse
Plaintiff for the money expended or expenses incurred therein to
complete repairs to the roof.
SO ORDERED AND ADJUDGED this the 20th day of September, 2017.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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