United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  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
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.
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.
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).
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 to itself. 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.
Mot. Ex. A1, at 7, ECF No. 44-1).
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.
IS THEREFORE ORDERED AND ADJUDGED that the
plaintiff's  Motion for Partial Summary Judgment is
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