United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, District Judge.
Plaintiff Best Buy Stores, L.P. leased retail space from Defendant Walters Acquisitions, Inc. The roof on Best Buy's store was improperly installed, leaks, and must be replaced. The parties dispute who should pay for the replacement. Best Buy now moves for dismissal of Walters' counterclaims. [Doc. 20.] For the reasons discussed below, Best Buy's motion is granted.
In November 2003, Walters, as landlord, and Best Buy, as tenant, entered into a lease of improved real property. Walters alleges that when the parties entered into the lease, they "understood and agreed that Best Buy's Construction Plans included the plan to install a new roof, obtain a warranty on that roof and transfer the warranty to Walters, " [Doc. 18, p. 7], and that the installation would be performed properly. Nowhere in the lease was a plan to install a new roof, obtain a warranty on the roof and transfer the warranty to Walters explicitly set out or explained.
Article 10 of the lease, "Repair of the Premises, " included the provision that Walters was generally responsible for structural repairs of the premises, including the roof, and a self-help provision for Best Buy:
Landlord shall make all structural repairs to the Premises, whether interior or exterior, keep the Premises watertight, and shall repair, replace and maintain in good condition the exterior of the Premises including without limitation the roof [and] roof membranes[.]...
In performing its obligations under this Article or elsewhere under this Lease, Landlord shall not unreasonably interfere with Tenant's normal business operations. If Landlord fails to undertake and complete to Tenant's satisfaction the repairs required under this Article or elsewhere under this Lease within sixty (60) days after written notice from Tenant, Tenant shall have the right to make such repairs on behalf of Landlord and to deduct the reasonable cost thereof from the fixed rent and other charges otherwise payable hereunder.
[Doc. 27-1, p. 13.]
The lease also included a merger provision:
37.3 Entire Agreement. This instrument shall merge all undertakings between the parties hereto with respect to the Premises and upon execution by both parties shall constitute the entire lease agreement, unless thereafter modified by both parties in writing. In the event Landlord shall execute this Lease prior to Tenant, Tenant shall have ten (10) days to accept the terms hereof and to execute this Lease, during which time Landlord's execution shall constitute an irrevocable offer.
[Doc. 27-1, p. 31.]
The lease's table of contents lists exhibits, including Exhibit D, "Store Floor Plans, Construction Plans and Specifications and Storefront, Signage and Pylon Signs." [Doc. 27-1, p. 5.] The exhibit ...