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VND12/19/2003
ccept that stipulation. Anything else?
[ ] During the course of the trial, there was further testimony regarding the stipulation:
Q: [By Mr. Schneider] Now we have stipulated in court now that - that you did have a duty to pay the general premises liability portion of the insurance at all times including all times during the tenancy my client assumed since 1997?
A: That's correct. . . .
Q: [By Mr. Rutten] And so you are willing to pay that insurance from the time you quit paying it right up to the present and continue to pay it then?
A: That's correct. Even if the language of the lease says we don't have to we have agreed to that.
Q: [By Mr. Rutten] Okay. And that the other reason is because you had paid it all this time in the past?
A: Right. We - yes, that's correct.
[ ] This was again discussed later on in the trial:
Q: [By Mr. Rutten] Now you now agreed in open court to stipulate that despite - in the insurance issue - despite the fact that you now believe that the lease didn't allow you to do that or didn't require you to pay general premises liability that you nonetheless had the legal responsibility to pay that; correct?
A: We so stipulated. . . .
Q: [By Mr. Rutten] Just one matter of clarification with respect to the stipulation relating to insurance. Is it your understanding that we stipulated to pay the insurance because it had been paid over the years based on custom and usage but you are not stipulating -that that paragraph, Section 10 of the lease, requires you to pay a pro-rata share of the landlord's liability insurance? You are not stipulating to that; are you?
A: No.
[ ] VND argues this stipulation was an admission by Leevers to having breached its duty to pay its pro-rata share of insurance and the only issue left to determine was whether the failure to pay this obligation under the lease violated a material term of the written lease agreement. Leevers, on the other hand, argues this stipulation was a compromise to settle the issue. It maintains that it was not obligated to pay the insurance under the lease. In its memorandum opinion, the district court, which had participated in the off-the-record discussions, also construed the stipulation as a settlement of the issue. Leevers made it very clear it was not conceding it had committed a breach. The stipulation was only to pay the insurance and not an agreement that failure to pay was a material breach.
[ ] We conclude the district court did not err in failing to construe this stipulation as an admission. We further conclude the district court did not err in concluding there was no material breach of the lease agreement.
IV.
[ ] VND argues that Leevers has misstated the facts, that these facts are not supported in the record, and that double costs should be imposed. VND also argues Leevers raises the issues of waiver and estoppel for the first time on appeal. We conclude these arguments would have been brought more properly in a motion; nevertheless, we find them without merit.
[ ] Because there has been no breach of the lease and because as a matter of law Leevers was not obligated to pay a pro-rata share of VND's liability insurance under the terms of the written lease prior to its stipulation, we do not need to discuss whether the court erred in determining that any breaches were immaterial, nor do we need to decide whether Leevers' substantial hardship can be considered. Because all rent has been paid and because Leevers has not committed any breaches of the lease, we conclude this case is not appropriate for
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