UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30386
_____________________
SCHWEGMANN WESTSIDE EXPRESSWAY INCORPORATED,
Plaintiff-Appellant/Cross-Appellee,
versus
K-MART CORPORATION, ET AL.,
Defendants,
GULF LIFE INS. CO.,
Defendant-Appellee/Cross-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2095)
_________________________________________________________________
March 27, 1997
Before REAVLEY, KING, and BARKSDALE, Circuit Judges.
PER CURIAM:*
When Schwegmann Westside Expressway, Inc., entered into an
agreement in 1993 to purchase a mall, “as is”, from Gulf Life
Insurance Company, and to assume a lease between K-Mart Corporation
and Gulf Life (the leased premises had been vacant since 1987;
approximately six months remained on the lease term), Schwegmann
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
was aware that a roof leak had caused damages to the premises
leased by K-Mart; and Schwegmann had a copy of the lease between
Gulf Life and K-Mart, which provided that Gulf Life was responsible
for the roof and for keeping the premises “safe, dry and
tenantable”, and that K-Mart was to surrender the premises in good
condition except for, inter alia, repairs to be made by Gulf Life.
Pursuant to the purchase and sale agreement, Gulf Life
furnished Schwegmann with a landlord estoppel letter, representing
that it had no knowledge of any default under the K-Mart lease;
but, that representation was based solely upon the lease, which was
attached, and “the notices, if any”, received by Gulf Life from K-
Mart while Gulf Life was the owner of the property. K-Mart never
gave Gulf Life any notice of default prior to the sale. Because,
inter alia, there was no justifiable reliance by Schwegmann on the
landlord estoppel letter, it cannot prevail on its negligent
misrepresentation claim against Gulf Life.
The purchase and sale agreement provides for attorney’s fees
being awarded to the prevailing party in an action to enforce or
interpret that agreement, or for indemnity. Because Schwegmann’s
was not such an action and because Gulf Life’s reliance on the
indemnity provision in the agreement is misplaced (there is no
evidence that Schwegmann breached any of the representations or
warranties referred to in that provision), Gulf Life’s attorney’s
fees claim fails.
- 2 -
AFFIRMED
- 3 -