United States District Court, E.D. North Carolina, Western Division
B. Jones, Jr., United States Magistrate Judge.
matter is before the court on the motion for summary judgment
of Kroger Limited Partnership I ("Defendant" or
"Kroger"). [DE-36]. H/S Wilson Outparcels, LLC
("Plaintiff' or "H/S Wilson") filed a
response in opposition [DE-48], and Kroger filed a reply
[DE-52]. For the reasons that follow, the motion for summary
judgment is granted in part and denied in part.
STATEMENT OF THE CASE
November 12, 2015, this action was removed from Wilson County
Superior Court. [DE-1]. H/S Wilson asserts claims against
Kroger for breach of contract and waste and seeks specific
performance, monetary damages, and attorney's fees
[DE-11] at 3-6, and Kroger asserts a counterclaim for breach
of contract against H/S Wilson. [DE-5] at 4. The parties
consented to magistrate judge jurisdiction, and the case was
first assigned to Judge Swank and later to the undersigned.
[DE-13]; Dec. 16, 2015 Text Order; Jan. 4, 2017 Text Order.
After a period of discovery, Kroger filed the instant motion
for summary judgment. [DE-36].
STATEMENT OF FACTS
2, 2000, H/S Wilson, the owner of the Wilson Mall in Wilson,
North Carolina, entered into an agreement to lease property
(the "premises") to Kroger. [DE-11] ¶¶ 1,
3. A grocery store was constructed on the premises, which
Kroger operated until June 24, 2004, and despite the store
closing, Kroger is obligated to continue maintaining the
premises as required by the lease. Id. ¶¶
7-8, 10. The lease agreement provides in relevant part that
Kroger, as tenant,
shall keep the Demised Premises in good order, condition and
repair, ordinary wear and tear excepted, and shall promptly
make or cause to be made any and all necessary or appropriate
maintenance and repairs (herein collectively referred to as
"Repairs"). All Repairs shall be at least equal in
quality and class to the original work.
Id. ¶ 10 (quoting Ex. A [DE-11-1] ¶ 29).
2011, the store roof sustained damage from a severe storm.
Dep. James Cooper ("Cooper Dep.") [DE-48-4] at
16:2-5, 35:3-7. By letter of June 30, 2011, H/S Wilson
notified Kroger that the roof of the store was damaged and
demanded that Kroger return the premises to "good order,
condition and repair" as required under the lease.
[DE-48-1]. Kroger obtained repair proposals in July and
August of 2011, but apparently due to an oversight, no
repairs were made to the roof until late in 2014. Cooper Dep.
[DE-48-4] at 25:12-14, 36:11-17, 85:13-86:1; PL's Ex. 2
[DE-48-2]; PL's Ex. 3 [DE-48-3]. H/S Wilson sent a
another letter to Kroger dated June 26, 2015, indicating it
believed the repairs were insufficient and that Kroger was in
violation of the lease. [DE-11-2] at 1-3. In September 2015,
Kroger hired a contractor to "clean-up" the
interior of the store, which included some mold remediation.
Cooper Dep. [DE-48-4] at 30:10-24; Def.'s App'x to
Reply, Ex. 1 [DE-52-1] at 4. However, H/S Wilson was not
satisfied with Kroger's response and alleges Kroger
failed to maintain the premises as required by the lease,
resulting in active roof leaks, standing water, and excessive
mold growth on the premises. [DE-11] ¶¶ 11-12. H/S
Wilson further alleges there are other signs of failure to
maintain the premises, including rust, stained walls, peeled
paint, and cracked windows. Id.
STANDARD OF REVIEW
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The party seeking summary judgment bears
the initial burden of demonstrating the absence of any
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once
the movant has met its burden, the nonmoving party then must
affirmatively demonstrate, with specific evidence, that there
exists a genuine issue of material fact requiring trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Only disputes between the
parties over facts that might affect the outcome of the case
properly preclude the entry of summary judgment. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242,
contends that H/S Wilson can present no facts to support its
contention that Kroger failed to keep the premises in
"good order, condition and repair" as required by
the lease. Def.'s Mem. [DE-37] at 5-8. Specifically,
Kroger argues that the grounds for the breach of contract
claims are the failure to repair the roof resulting in active
water leaks and the failure to remediate mold on the
premises, and expert testimony is required regarding the
"penetrability of the subject roof, or whether the
subject premises required mold remediation, because such
subjects are not within full understanding of lay
persons." Id. at 6.
response, H/S Wilson offers the sworn affidavit of Elizabeth
Wilson, the Director of Property Management for Hull Property
Group, who manages the premises for H/S Wilson. Pl.'s
Mem. [DE-48] at 7-8; Aff. of Elizabeth Wilson ("Wilson
Aff.") [DE-51]. Wilson was present for two inspections
of the property in January and September 2016 and personally
observed and photographed the condition of the building,
including rust on the steel decking and rust holes, rusted
and broken gutter, rust on steel columns, water stains on
cinderblock walls, mold on interior painted surfaces,
saturated roofing insulation, and displaced and buckled
insulation boards. Wilson Aff. [DE-51] ¶¶ 5-8. H/S
Wilson argues that Wilson's testimony, the photographic
evidence, and the testimony of Kroger's own expert
creates a question of material fact and that a reasonable
person could conclude that the roof needs to be replaced.
Pl.'s Mem. [DE-48] at 8. H/S Wilson further argues that
an expert is not necessary to understand that rain exposure