GAIL NELSON and CHUAN LIU, Appellants, v. PECKHAM PLAZA PARTNERSHIPS, Respondent
Nelson v. Peckham Plaza Partnerships
Steffen, J., and Zenoff, Sr. J., concur.
GAIL NELSON and CHUAN LIU, Appellants, v. PECKHAM PLAZA PARTNERSHIPS, Respondent.
GAIL NELSON and CHUAN LIU, Appellants, v. PECKHAM PLAZA PARTNERSHIPS, Respondent.
No. 23395
January 12, 1994
866 P.2d 1138
Beasley, Holden & Brooks, Reno, for Appellants.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Matthew C. Addison, Reno, for Respondent.
OPINION
By the Court,
Shearing, J.:
Appellants Gail Nelson and Chuan Liu leased property from respondent Peckham Plaza Partnerships ("Peckham"), and operated a Mongolian Barbecue restaurant ("Panda") on the premises. After five years, the lease expired and Panda vacated the premises and removed some of its equipment. Peckham was not satisfied with the condition of the property as it was left by Panda, and incurred expenses in repairing and restoring the property.
The district court awarded Peckham damages and attorneys' fees based on Panda's negligent removal of the equipment and on the damaged condition of the property beyond the contractual allowance of "ordinary wear and tear." Panda contends that the district court did not base its conclusions of fact on substantial evidence. We disagree.
Panda first argues that the trial judge erred in awarding Peck-ham damages in the amount of $7,939.50 for the removal and replacement of the entire vinyl floor covering when only a small portion of it was damaged. When a party negligently damages the property of another, damage awards should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's breach of duty. Martinez v. City of Cheyenne, 791 P.2d 949, 959 (Wyo. 1990).
The flooring in the premises consisted of 1,250 square feet of black and white one-by-one vinyl tiles, 1,250 square feet of sheet vinyl, and approximately 750 square feet of carpeting. The trial judge found that Panda was negligent in damaging the vinyl flooring when it removed its trade fixtures.
The trial judge heard evidence on whether only the damaged areas of the vinyl flooring could be replaced instead of the whole vinyl floor. Expert witnesses testified that because the existing vinyl tiles and sheet vinyl were worn, replacing only the damaged tiles with new tiles would result in an inconsistent floor pattern. Panda's own expert admitted that replacing only the damaged tiles would not result in a match. Furthermore, the trial judge heard testimony that the removal and replacement of the damaged sections of the sheet vinyl would result in seams in the flooring which would collect water and be easily noticeable. In essence, there were three separate areas of damage, two different kinds of flooring and the difficult task of matching replacements of each type.
The trial judge concluded that the only way Panda could repair the damage caused by its negligence was by removing and replacing all of the vinyl tiles. If Panda had not negligently damaged the vinyl flooring, it would not have been required to replace the flooring because it was only contractually required to vacate the premises in good condition, ordinary wear and tear excepted. However, in light of Panda's negligence, the trial judge's finding that Peckham could only be compensated in full through the replacement of the entire vinyl flooring was not erroneous.
Panda also argues that it was error for the trial judge to award Peckham $4,950 to cover the costs of repairing and cleaning the premises. After Panda surrendered the premises, Peckham hired Comstock Maintenance to repair and clean the premises. Com-stock Maintenance charged Peckham $5,000 for completing the work; however, the district court only awarded Peckham $4,950, finding that $50 of the $5,000 was incurred in repairing damages which Peckham had the obligation to repair under the lease. Panda asserts that the district court erred in its award of $4,950 because most of the damage was due to ordinary wear and tear.
The district court's findings of fact will not be set aside unless those findings are clearly erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990). Accordingly, if the district court's findings are supported by substantial evidence, they will be upheld. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734 P.2d 1236, 1237 (1987). Testimony and pictures presented at trial demonstrated that the damage and "filth" left behind by Panda went well beyond ordinary wear and tear. We therefore conclude that the district court's findings were supported by substantial evidence and were not erroneous.
Finally, Panda argues that the district court erred in awarding Peckham $9,037.50 in attorney's fees. Unless there is a manifest abuse of discretion, a district court's award of attorney's fees will not be overturned on appeal. County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220 (1982). In the case at bar, the lease agreement provided that if a suit is brought to enforce any covenant of the lease or for any breach of any covenant or condition of the lease, the prevailing party is entitled to its reasonable attorney's fees and costs. The district court did not abuse its discretion in applying the attorney's fees provision of the lease and awarding Peckham, the prevailing party, reasonable attorney's fees and costs.
We affirm the district court's judgment.
Steffen, J., and Zenoff, Sr. J., concur.
The Honorable David Zenoff, Senior Justice, was appointed to sit in place of The Honorable Charles E. Springer, Justice.