Facts: In this action involving a commercial lease, the trial court granted judgment in favor of the lessee, determining that the lessor had materially breached the lease. The court further determined that the lessor was liable for negligent misrepresentation, due to its misrepresentations concerning the condition of the roof on the leased building and its intent to repair the roof, and constructive eviction, due to its failure to timely repair the building and render it tenantable.
Appellate Decision: The intermediate court affirmed. With respect to the lessor’s argument that the lessee’s reliance on its representations was unreasonable, the court held “this contention sounds in principles of comparative fault,” but the issue was waived because the lessor did not plead the defense of comparative fault. With respect to the lessor’s argument that the lease did not allow for attorney fees in this situation, the court applied “customary rules of contract construction” and determined the language of the lease did so allow.
Review Granted: August 6, 2021. The Supreme Court’s order specified review was granted with respect to the following two issues:
- Whether the affirmative defense of comparative fault is applicable to a negligent misrepresentation cause of action in which the conduct of the plaintiff constituting the basis for that defense also pertains to the justifiable reliance element of the negligent misrepresentation cause of action?
- Whether the rules of contract construction may be applied to an ambiguous contractual attorney’s fee provision to determine the intent of that provision and conclude that it is enforceable?
Prediction: Ben thinks the Supreme Court will affirm for the reasons stated by the intermediate court.
Review: After supplemental briefing, review was dismissed as improvidently granted on March 4, 2022.