Brizendine v. Conrad

71 S.W.3d 587 (2002)

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Nature of the Case

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Facts

D and P entered into the Agreement by which she leased a low-income apartment-office-storage complex building beginning on October 1, 1997, and expiring on September 30, 1998. D had an option to purchase at the end of the lease. D was required to pay $15,000 at the execution of the Agreement, which would be credited against the purchase price when the sale was completed and all conditions under the Agreement were satisfied. D was to manage the property by collecting rent, providing all trash pickup for the premises, using the property as residential and commercial property unless otherwise authorized by the written consent of P, keeping the grass 'neatly mowed,' maintaining the premises in good condition and to surrender it 'in the same condition as received,' and to arrange for and pay for all utilities. D covenanted and agreed to maintain and repair the property as follows: To maintain in good condition all interior and exterior surfaces and to do all interior decorating and maintenance at her own expense. It is agreed that all costs for maintenance and repair of the premises and mechanical apparatus located thereon (including replacement) shall be borne by the Lessee during the term of this Agreement. After execution, all costs of maintenance shall be at the Lessee's expense. The agreement stated that if D failed to purchase the property, she agreed to surrender it to P in the same condition as received, ordinary wear and tear excepted. The $15,000 was to be retained as liquidated damages if D failed to fulfill her obligations under the Agreement. D decided not to purchase the property because it was 'too much maintenance, too much upkeep.' P informed D that the property was not in acceptable condition under the Agreement because it had extensive damage, not merely normal wear and tear. The purchase price agreed to had been $140,000. The cost to repair the damage done to it was $30,335. P took an offer of $90,000 for the property from a new buyer and then filed suit against D for statutory waste. D filed a counterclaim. The court found in favor of P and awarded damages for waste in the amount of $11,253.45, based on the cost of repair, which the court then trebled to $33,760.35 pursuant to section 537.420. D appealed.