This appeal is the latest episode in a longstanding dispute between Thunderbolt Marine, Inc. “Thunderbolt”, the owner and lessor of commercial property on the Intracoastal Waterway in Savannah, and Palmer Johnson Savannah, Inc. “PJS”, the lessee, which operated a marina and yacht repair business there. Some time after PJS first brought a declaratory judgment action to determine its responsibility under its lease, and shortly after it sublet the property to unapproved subtenants, a bulkhead wall in the property’s yacht repair area collapsed. At the conclusion of the litigation that followed, a Chatham County jury rendered a verdict of $4.24 million in Thunderbolt’s favor, the trial court entered judgment on that verdict, and the defendants brought the instant appeal. On appeal, PJS’s successor-in-interest, Savannah Yacht Corporation, argues that the trial court erred when it denied its motions for summary judgment and for directed verdict concerning Thunderbolt’s claims for rent, maintenance and repair, and attorney fees. The subtenants join Savannah Yacht’s arguments and add that the trial court erred in its construction of the lease and in its submission of an alleged ambiguity in the parties’ use of the term “bulkhead” to the jury. We agree that the trial court erred when it allowed the jury to consider Thunderbolt’s claims for rent, maintenance, and repair. We therefore reverse the judgment rendered on these claims, vacate the award of attorney fees, and remand for further proceedings on the issue of attorneys fees. Although we view the record in the light most favorable to Thunderbolt and the jury’s verdict1, most of the relevant facts are undisputed. In March 1992, PJS entered into an agreement to lease the property at issue for PJS’s use as a marina and yacht repair facility. The north side of the property, including a concrete bulkhead built in the 1960s or 1970s, housed the marina serving boats on the intracoastal waterway along the Wilmington River; the south side, including a steel bulkhead dating from the 1980s, contained the yacht repairing and retrofitting works.
Section 9.01 of the lease, entitled “Maintenance and Repair,” provided as follows: PJS, at its sole cost, risk, expense and liability, shall keep and maintain all of the Property . . . in good order, repair, and condition, and shall make all structural, non-structural and mechanical, foreseen and unforeseen and ordinary and extraordinary repairs which may be required . . . , normal wear and tear excepted. Provided, however, that PJS shall not be required to make structural replacements and repairs for any latent structural defects unknown to PJS on the date of its execution of this Agreement, unless such latent structural defects are caused or occasioned by the acts of PJS or the failure of PJS to maintain or repair the property in accordance with the provisions of this Lease. Section 24.03 of the lease provided that in the case of PJS’s default, Thunderbolt’s options included a re-entering the property; b re-leasing the property and recovering “any deficiency that may arise by reason of such re-leasing”; c suing PJS for unpaid rent or damages; and d doing “whatever PJS is obligated to do” under the terms of the lease, “in which event PJS shall reimburse Thunderbolt on demand for any expenses,” including attorney fees.
