978-1285770178 Case Printout Case CPC-29-05

Va.,2009.

Landmark HHH, LLC v. Gi Hwa Park

gation to provide a serviceable roof and to provide her with the quiet enjoyment of the leased premises. The Circuit

30k842 Review Dependent on Whether Questions Are of Law or of Fact

30k842(8) k. Review Where Evidence Consists of Documents. Most Cited Cases

Appellate courts do not accord any deference to the circuit court’s interpretation of lease because appellate courts are

afforded the same opportunity as the circuit court to interpret the terms of the parties’ contract.

233k166(3) k. Injuries Due to Failure to Repair. Most Cited Cases

Commercial landlord’s failure to provide a serviceable, leak-free roof constituted a breach of its lease with tenant,

and the lease did not absolve landlord from liability for the damage sustained by tenant with respect to tenant’s store

inventory; lease required landlord to keep the roof “in good repair” at all times during the period of the lease, and

lease required tenant to absolve landlord from any losses she sustained to the extent of the insurance proceeds paya-

233VII(D) Repairs, Insurance, and Improvements

233k152 Covenants and Agreements as to Repairs and Alterations

233k152(6) k. Right of Landlord to Notice That Repairs Are Necessary. Most Cited Cases

Requirement in commercial lease, providing that landlord shall make such repairs as are necessary “following land–

lord’s knowledge of the necessity of said repairs,” was not a limitation on the principal duty of landlord to provide a

233 Landlord and Tenant

233VII Premises, and Enjoyment and Use Thereof

233VII(D) Repairs, Insurance, and Improvements

233k153 k. Mode of Making Repairs. Most Cited Cases

Maintenance of the roof was in the exclusive control of commercial landlord, and when it undertook to replace the

233 Landlord and Tenant

233VII Premises, and Enjoyment and Use Thereof

233VII(D) Repairs, Insurance, and Improvements

233k156 k. Covenants and Agreements as to Insurance. Most Cited Cases

233VII Premises, and Enjoyment and Use Thereof

233VII(D) Repairs, Insurance, and Improvements

233k156 k. Covenants and Agreements as to Insurance. Most Cited Cases

Provision in commercial lease requiring tenant to absolve landlord from any losses she sustained to the extent of the

insurance proceeds payable on such losses only prohibited tenant from obtaining a double recovery on a loss sus-

233II(B) Construction and Operation

233k37 k. Application of General Rules of Construction. Most Cited Cases

Had commercial landlord, as the drafter of the lease, desired to be exempt from all liability for losses sustained by

tenant as the result of the common hazards to which the property would be subject, it was required to express the

exemption in the plain language of the lease.

95k143 Application to Contracts in General

95k143(3) k. Rewriting, Remaking, or Revising Contract. Most Cited Cases

When interpreting a contract, courts construe it as written and will not add terms the parties themselves did not in-

clude.

**144 Francis J. Prior, Jr., (Siciliano, Ellis, Dyer & Boccarosse, on brief), Fairfax, for appellant.

*52 In this appeal, we consider whether the circuit court correctly determined that under a lease for commercial real

estate the landlord was liable for contract damages for the loss sustained by the tenant when the roof of the leased

This case was tried by the circuit court, sitting without a jury. Upon appellate review, the court’s judgment is entitled

to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is

plainly wrong or without evidence*53 to support it. Code § 8. 01-680; Hickson v. Commonwealth, 258 Va. 383, 387,

520 S.E.2d 643, 645 (1999). Accordingly, we recite the facts in this case in the light most favorable to the tenant, the

party in whose favor the circuit court rendered its judgment. Government Micro Res., Inc. v. Jackson, 271 Va. 29,

16(b) Tenant, at its sole cost and expense, shall be responsible for providing a policy of fire and extended coverage

insurance, insuring Tenant‘s inventory, … and all other contents in the Premises….

25(a) Landlord shall endeavor to keep the foundation, roof, and the outer walls … of the Premises in good repair and

insurance proceeds payable under such policies), even if such loss or damage is attributable to the fault or negli-

gence of the other party, or anyone for whom such party may be responsible.

Within three weeks of Park’s opening of The Four Seasons and continuing through **145 September 2005, leaks in

the roof allowed water to flow into the store, damaging the ceiling and causing wet spots throughout the store. The

dertook to replace the entire roof of the shopping center. Landmark hired Waterproofing Consulting Company, Inc.

(WCC) to design and monitor the installation of a new roof. On WCC’s recommendation, Landmark contracted with

Potteiger-Raintree, Inc. to perform the actual installation. Despite the addition of the new roof, water continued to

leak into The Four Seasons, and Tony Park again reported this fact to Landmark, which referred the matter to WCC.

WCC and Potteiger-Raintree took corrective measures to connect a drain and repair improperly installed flashing,

bility upon it because it took reasonable steps to have the contractor and subcontractor remedy the defects, and it had

no notice that the roof would fail entirely. We disagree.

notified by a tenant of defects in the roof.

[6] Moreover, we do not agree with Landmark’s contention that by undertaking to replace the roof it could, in effect,

shield itself from the responsibility of providing a serviceable roof unless and until a tenant gave notice that the new

roof was defective. To the contrary, maintenance of the roof was in the exclusive control of Landmark, and when it

ability of the contractors absolve Landmark of its duties under the lease. We also will not consider Land-

mark’s assignment of error contending that the circuit court erred “by imputing the arguable negligence of

the landlord’s independent contractors to the landlord.” In support of this argument, Landmark relies exclu-

sively on cases arising in tort against landlords for personal injuries to tenants or invitees as the result of the

negligence of third-party contractors. Park’s complaint was for breach of the lease, thus negligence was not

solve each *57 other of liability for any loss or damage to property, and that the circuit court ignored these provi-

sions by allowing Park to maintain this suit. Again, we disagree.

[7][8] Section 16(b) of the lease required Park to maintain insurance on her inventory, which she did. The language

of this section, however, does not limit either party’s ability to bring suit against the other for violations of the lease.

However, Landmark has not challenged the amount of the judgment by an assignment of error and, there-

fore, we are not concerned in this appeal with whether such a credit was owed and applied.

[9][10] We agree with the circuit court that had Landmark, as the drafter of the lease, desired to be exempt from all

liability for losses sustained by Park as the result of the common hazards to which the property would be subject, it