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In December 2005, the Mall sued Showplace to recover
unpaid rent due under the parties' lease. In January 2006,
Showplace (1) answered the Mall's complaint, denying it owed the
Mall rent, and (2) counterclaimed, (a) requesting that the trial
court declare that Showplace had satisfied all of its contractual
obligations to pay rent when it replaced the Mall's roof and (b)
arguing that the Mall was in breach of contract. Each party
thereafter filed motions for summary judgment.
In August 2007, the trial court (1) granted partial
summary judgment in Showplace's favor, finding that, as a matter
of law, the parties' lease charged the Mall with the duty to
replace the roof once the roof was beyond practical repair; (2)
denied the Mall's motion for summary judgment, finding that
Showplace had the right to set off the expense of replacing the
roof; and (3) setting the case for trial on certain factual
issues regarding whether the roof required replacement. In May
2008, the court granted Showplace's second motion for summary
judgment, finding that no question of fact existed as to the
necessity for replacing the roof. (On appeal, the Mall is not
contesting the trial court's conclusion from the second summary
judgment order that the roof needed to be replaced.)
This appeal followed.
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