Sumner Center, LLC v. Fred Meyer Stores

Filing 24

ORDER denying 18 Defendant's Motion for Partial Summary Judgment; signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SUMNER CENTER, LLC, a Washington
limited liability corporation,

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Plaintiff,

CASE NO. 13-cv-5276 RBL
ORDER DENYING DEFENDANT’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT

v.
FRED MEYER STORES, an Ohio
corporation,

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Defendant.
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THIS MATTER is before the Court on Defendant Fred Meyer’s Motion for Partial

16 Summary Judgment. Fred Meyer seeks a ruling as a matter of law that it is not responsible for
17 any repairs to the roof of Plaintiff Sumner’s building, which Fred Meyer had previously
18 occupied. Fred Meyer claims it is not liable for the roof damage under the “wear and tear”
19 exception to the lease’s surrender clause. Sumner argues that even if the wear and tear exception
20 applies, the roof damage was the result of Fred Meyer’s failure to complete necessary repairs as
21 required by the lease, rather than ordinary wear and tear. Because determining whether the
22 damage was due to either wear and tear or neglect is a question of fact, Fred Meyer’s Motion for
23 Partial Summary Judgment is DENIED.
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ORDER DENYING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT - 1

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I.

Background

In 1993, both parties’ predecessors entered into a 20-year lease for the Center. QFC was

3 the tenant until 1998, when Fred Meyer acquired QFC and assumed the tenancy. Fred Meyer
4 vacated the building in 2004 but maintained the leasehold until the lease expired in 2013.
5 Sumner acquired the Center and became the landlord in 2007.
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The lease’s repair clause requires the tenant to keep the structure in good condition

7 during the term of the lease:
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Tenant agrees to preserve and maintain Tenant’s Building, including
exterior painting, in good condition and repair during the term of this
Lease. Tenant shall, at its sole cost and expense, keep and maintain
Tenant’s Building, including roof membrane and all window and door
glass in good condition and repair during the term of this Lease…
The surrender clause discusses the tenant’s responsibilities at the end of the lease term,

12 and contains a wear and tear exception for otherwise required repairs and maintenance:
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Upon termination of this Lease, Tenant shall surrender possession of
Tenant’s Building to Landlord in good condition, as modified by any
repairs, alterations, or improvements made by Tenant in accordance with
this Lease, and subject to ordinary physical depreciation and ordinary
wear and tear…

16 Taylor Dec., Ex. 1 at 24, Dkt. #19 (emphasis added)
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In 2007, Fred Meyer hired a consultant known as A-Tech to perform a “Roof Moisture

18 Study” to assess the roof’s condition. A-Tech noted that the roof needed “major repair work” that
19 was “necessary to replace the membrane system before the existing salvageable insulation was
20 damaged” and the roof would require replacement. Bloomfield Dec., Ex. G at 1. A-Tech
21 concluded that the roof had reached the end of its manageable life cycle, and recommended a
22 “salvage and recover” project to prevent any additional moisture from entering the roof system.
23 Bloomfield Dec., Ex. F at 8. Fred Meyer completed only minor, temporary repairs, and did not
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ORDER DENYING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT - 2

1 undertake any of A-Tech’s suggested maintenance actions. The roof sustained severe moisture
2 damage. Sumner also claims that when Fred Meyer removed the fixtures from the building, it
3 left open penetrations in the roof. The lease allows the tenant to remove fixtures, but requires that
4 the “Tenant will repair all damage to Tenant’s building occasioned by such removal.”
5 Bloomfield Dec., Ex. A at 44. When Sumner regained possession of the building at the end of
6 the lease term, the roof was in very poor condition. Sumner requests $706,000 from Fred Mayer
7 to cover a new surface membrane, new skylights, additional insulation, and subsurface material
8 to increase the slope of the roof.
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Fred Meyer moves for partial summary judgment on the grounds that that the damage was

10 ordinary wear and tear, and the surrender clause containing the wear and tear exception should
11 control, thus exempting it from liability. Sumner points to Fred Meyer’s failure to repair as the
12 true cause of the damage and contends that, at the very least, it is a question of fact as to the real
13 source of the damage.
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II.

Discussion

A. Summary Judgment Standard
Summary judgment is appropriate when, viewing the facts in the light most favorable to

17 the nonmoving party, there is no genuine issue of material fact which would preclude summary
18 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to
19 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to
20 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for
21 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of
22 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v.
23 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not
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ORDER DENYING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT - 3

1 affect the outcome of the suit are irrelevant to the consideration of a motion for summary
2 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words,
3 “summary judgment should be granted where the nonmoving party fails to offer evidence from
4 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at
5 1220.
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B. Lease Interpretation
When interpreting leases, the court should try to ascertain the parties’ intent at the time of

8 execution. Wash. Hydroculture, Inc. v. Payne, 96 Wn.2d 322, 328 (1981). If the lessor drafts the
9 lease, any “ambiguities must be resolved in favor of the lessee.” Id. When damage to the
10 property is at issue, the lessor bears the burden of proving that damage exceeds reasonable use
11 and wear. Fisher Properties, Inc. v. Arden-Mayfair, 106 Wn.2d 826, 839 (1986).
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C. Analysis
Since ambiguities should be resolved in favor of the lessee, Fred Meyer’s argument that

14 the surrender clause containing the wear and tear exception should control is compelling.
15 However, that does not mean Fred Meyer is entitled to summary judgment. Even though the
16 wear and tear exception controls, whether the damage is due to normal wear and tear or Fred
17 Meyer’s failure to conduct repairs and maintenance is a disputed question of fact. Sumner has
18 introduced sufficient evidence to create a question of fact as to the source of the damage.
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For these reasons, Defendant’s Motion for Partial Summary Judgment is DENIED.
IT IS SO ORDERED
Dated this 24th day of July, 2014.

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A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER DENYING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT - 4