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IN THE COURT OF APPEALS
AT KNOXVILLE

FILED
November 23, 1998
Cecil Crowson, Jr.
Appellate Court
Clerk

WESTWOOD GROUP PARTNERSHIP, ) ROANE CIRCUIT

) C.A. NO. 03A01-9805-CV-00155
)
Plaintiff-Appellee )
)

vs. )
) HON. RUSSELL E. SIMMONS, JR.
) JUDGE
)

DAVID L. MOORE, M.D., )
)
Defendant-Appellant ) AFFIRMED AND REMANDED

BARBARA W. CLARK, Moore & Clark, P.C., Knoxville, for Appellant.

DAIL R. CANTRELL, Cantrell, Pratt & Varsalona, Clinton, for
Appellee.

O P I N I O N
McMurray, J.

This appeal involves a commercial lease dispute between the
Westwood Group Partnership (the landlord) and Dr. David L. Moore
(the tenant).  Each party sued the other for breach of the lease
agreement.  After a bench trial, the trial court ruled that the
tenant breached the lease by not paying the rent, and awarded the
landlord rent payments, late fees and attorney's fees in the total

amount of $5,390.00.  The tenant appeals this ruling.  We affirm
the judgment of the trial court and agree with the appellee that
this is a frivolous appeal.

In November of 1994, the parties entered into a lease
agreement whereby the tenant agreed to lease certain property in
Roane County.  The term of the lease was from January 1, 1995
through January 1, 1998, "unless terminated sooner or extended as
provided herein."  The lease provided for rent in the amount of
$800 per month for the year 1995, and further provided that "for
each calendar year thereafter for the duration of this Lease
Agreement, the rent shall increase by an amount not to exceed six
percent (6%) per year."  The lease provided a late fee of forty
dollars "in the event any installment of rent is paid more than
Twenty-five (25) days late." The lease also provided that in the
event of litigation, "the prevailing party shall be entitled to all
costs incurred in connection with such action, including a
reasonable attorney's fee."

In 1996 the rent increased to $848 per month, which the tenant
apparently paid without incident.  In 1997 the rent increased to
$898 per month.  The landlord presented the testimony of Ms. Janie
Alcorn, its co-owner and manager.  Alcorn testified that the tenant
paid $848 in January and February of 1997.  The tenant paid the

additional $100 due for those two months after the landlord's
attorney sent him a letter requesting payment.  Alcorn testified
that the tenant sent $848 for rent in March, April and May of 1997.
He stopped paying rent altogether in June.

On June 10, 1997, the tenant sent a letter which stated, "We
have contacted you many time [sic] regarding the air conditioner
not working and you have refused to repair it.  You leave us no
choice but to stop paying rent until it is repaired." On June 30,
1997, the landlord sent the tenant a termination letter, citing the
tenant's "constant failure to pay the proper rent and late fees."
The letter provided the tenant with sixty days to vacate the
property. The tenant vacated the property on September 1, 1997.

The tenant argued at trial that the landlord refused to repair
the air conditioning unit, leaving it unbearably hot in the
building, which he used for a medical clinic. The lease provides
the following regarding air conditioning: "Lessor agrees to provide
for purchase and installation of suitable hvac and appropriate
ducting, thermostat(s), and registers required to keep said office
space comfortable according to Federal heating and cooling
guidelines." The tenant testified as follows regarding the air
conditioning unit:

It has never been able to cool that office to any degree
that on the hot days it would not be detrimental to some
of our patients' health.  And I have sent a letter. I
have had Sharon call them on multiple occasions.  They
have been in there.  They have agreed that it's hot. And
they have refused to repair it.

The tenant testified that since the landlord would not repair

the unit, he called Craze Brothers Heating and Air himself to have

it repaired. The tenant stated that he paid Craze Brothers' bill

for fixing the air conditioning.

The tenant presented the testimony of his employee, Ms. Sharon
Price, who testified that the air conditioning would go down on hot
days, that it was very hot in the office, and that they called
Craze Brothers on several occasions.  Price testified that she
called the landlord's beeper number on several occasions, and one
of the owners would call back within two hours.  She stated that on
one occasion an owner came to the office, looked at the unit and
suggested that they change the filter.  Price did not testify that
any of the owners ever refused to have the air conditioning fixed.

Alcorn testified that the tenant called on several occasions
complaining about the air conditioning. She further testified as
follows:

Q: Okay. And what did you

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