THE STATE OF SOUTH CAROLINA
In The Court of Appeals

China Inn of Columbia,        Respondent,

v.

Woon Ming Yip,        Appellant.

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2003-UP-423
Submitted April 18, 2003 – Filed June 24, 2003

REVERSED

Gilbert Scott Bagnell, of Columbia, for Appellant.

Wai Man Ng, of Columbia, Pro Se.

PER CURIAM:    Woon Ming Yip appeals the circuit court’s order affirming the magistrate’s court judgment, which awarded China Inn of Columbia $3,107.48 plus $35 court costs.  We reverse. [1]

FACTS/PROCEDURAL BACKGROUND

Woon Ming Yip and Wai Ying Chiu Yip rented his building to Kun Tai Ho and Wai Man Ng, who used it to operate their restaurant, China Inn of Columbia.

Under the terms of the written “Lease Agreement,” Yip, as landlord, was responsible for roof repairs and maintenance.  China Inn, as tenant, agreed to accept the property “as is” and was obligated to keep all fixtures in good repair and maintain an insurance policy on the premises with the Yips as beneficiaries.  The “Lease Agreement” provides:

8.                 IMPROVEMENT AND MAINTENANCE

(a)             Landlord’s Repairs.  Landlord shall be responsible for all structural repairs to the roof of the leased property including all repairs and maintenance to the roof.

(b)            Tenants’ Repairs.  Tenants accepts [sic] the property “as is” and understands [sic] that neither heating nor air conditioning are required to be provided.  Tenants shall, at their own cost and expense:

(1)            Keep all fixtures in good repair and shall take good care of the Lease Property and its fixtures and suffer no waste, reasonable wear and tear excepted.

(2)            Tenants shall repair and pay for any damage caused by them, the affirmative acts or negligence of Tenants, or their employees, agents or invitees or caused by Tenants’ default hereunder.

. . . .

9.                 INSURANCE

(a)             Exculpation of Landlord.  Landlord shall not be liable to Tenants for any damage to Tenants or Tenants’ property from any cause.  Tenants waive all claims against the Landlord for damage to person or property arising for any reason, except that Landlord shall be liable to Tenants for damage to Tenants resulting from the acts and omissions of Landlord or its authorized representatives.

(b)            Public Liability and Property Damage Insurance.  Tenants at their cost shall maintain public liability and property damage insurance with a single combined liability limit of Two Hundred Fifty Thousand Dollars ($250,000) and property damage limits of not less than Sixty-Eight Thousand Dollars ($68,000) insuring against all liability of Tenants and their authorized representatives arising out of and in connection with Tenants’ use or occupancy of the premises.  All public liability insurance and property damage insurance shall insure performance by Tenants of the indemnity provisions herein.

(c)             Tenant’s Fire Insurance.  Tenants, at their cost, shall maintain on all their personal property, Tenants’ improvements, alterations, in, on, or about the premises, a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, to the extent of at least one hundred percent of their full replacement value.  The proceeds from any such policy shall be used by Tenants for the replacement of personal property or the restoration of Tenants’ improvements or alterations.  Additionally, Tenants shall maintain a policy of fire and extended coverage insurance with like endorsements on the premises for full replacement value.  Woon Ming Yip and Wai Ying Chiu Yip shall be named as beneficiaries on this premises policy.

After China Inn took occupancy, a water pipe burst.  Yip, thinking it was his responsibility, had the pipe fixed for $700.  China Inn repaired the back flow device for the waterline for $1257.48.  Additionally, an automobile ran into the building causing damage.  China Inn filed a claim with their insurance company, who in return wrote a check to Yip for $3,700.25, the estimate to repair the building less the $500 deductible.  Yip had the building repaired.

China Inn commenced this action to recover the cost of repairing the back flow device and the insurance money used to repair the building.  Yip answered, denying he was responsible, and counterclaimed for the cost of repairing the water pipe plus attorney fees for review of the “Lease Agreement.”

At trial, the magistrate’s court denied the counterclaims and awarded China Inn $3,142.48, comprising of $1257.48 for the back flow device repair, $1850 as half of the $3,700.25 insurance proceeds, and $35 court costs.  Yip appealed to the circuit court.  The circuit court affirmed the judgment of the magistrate’s court in a form order.

LAW/ANALYSIS

Yip contends the court erred in ruling the landlord is responsible for the repairs and the tenant is entitled to half the insurance proceeds.  We agree.

Where a contract has been reduced to writing and a question arises as to the intention of the parties, the court must first look to the language of the writing.  Blakeley v. Rabon, 266 S.C. 68, 72, 221 S.E.2d 767 (1976).  If the contract's language is clear and capable of legal construction, the language alone determines the force and effect of the instrument.  Superior Auto Ins. Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973); McPherson v. J.E. Sirrine & Co., 206 S.C. 183, 33 S.E.2d 501 (1945).  If the contract is silent about a particular matter and ambiguity arises, parol evidence may be admitted to ascertain the intent of the parties.  Columbia East Assocs. v. Bi-Lo, Inc., 299 S.C. 515, 386 S.E.2d 259 (Ct. App. 1989).

Words employed by a contract are to be given their usual and ordinary meaning, except where it appears they were used in a different sense or have a technical meaning.  Martin v. Carolina Water Serv., Inc., 280 S.C. 235, 312 S.E.2d 556 (Ct. App. 1984).

Because the language of the lease is clear, we can only look to it to establish the intent of the parties.  The lease provides that Yip, as landlord, is accountable only for repair of the roof and China Inn, as tenant, otherwise takes the property “as is” and is responsible for keeping the fixtures in “good repair.”  China Inn was, therefore, liable for repairing the water pipe and the back flow device as fixtures.

The lease required China Inn to maintain insurance on the property and to name the Yips as beneficiaries.  The lease does not contain any provision entitling China Inn to half the insurance proceeds.  The purpose of the insurance was to pay for repairs in case of an accident.  Yip used the insurance money for its intended purpose by paying for the repairs.  China Inn, therefore, is not entitled to half the insurance proceeds.

CONCLUSION

The lower court erred in ruling that Yip was required to pay for the repairs and China Inn was entitled to half the insurance proceeds.  Therefore, the decision of the circuit court is

REVERSED.

CURETON, ANDERSON and HUFF, JJ., concur.