CourtListener 9401538

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Cite as 2023 Ark. App. 297
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-20-628

WILLIAM ANGEL, PATRICIA BELK, Opinion Delivered May 24, 2023
DOROTHY BROWN, ROBERT
BROWN, ANTHONY BUGGS, JEAN APPEAL FROM THE PHILLIPS
CARTER, ALBERTA CARTWRIGHT, COUNTY CIRCUIT COURT
EUGENE CARTWRIGHT, FRANCES [NO. 54CV-18-216]
LOUISE CRAWFORD, BEATRICE
EATON, QUEEN ESTER ROSS, HONORABLE RICHARD L.
PEARLIE FRANKLIN, ROSETTA PROCTOR, JUDGE
FULLER, VERNA HICKEY, BARBARA
MARSHALL, SHAMEKIA MARSHALL,
NATHANIEL MARTIN, LINDA
SANDERS, BOBBY LEE SMITH, FELISA
STOKES, KATTIE MAE TAYLOR,
FANNIE LEE WASHINGTON,
MARTHA WASHINGTON, GLORIA
WEBSTER, AND CLAUDE WILBORN
APPELLANTS

HELENA RENAISSANCE 1, L.P.;
PIONEER PROPERTY MANAGEMENT,
INC.; GAIL WADE; AND CORNELIUS
BORUM
APPELLEES AFFIRMED IN PART; REVERSED AND
REMANDED IN PART

BART F. VIRDEN, Judge

Several current and former tenants of the Helena Heights Apartments (Helena

Heights), a multi-unit apartment building owned by appellee Helena Renaissance 1, L.P.
(Helena Renaissance), filed a complaint in the Phillips County Circuit Court alleging that

Helena Renaissance, appellee Pioneer Property Management (Pioneer), and appellees Gail

Wade and Cornelius Borum breached several covenants in their lease agreements and

“created and maintained a nuisance in the common areas of the apartment complex.” Their

claims were based on the appellees’ alleged failure to perform duties that they assumed under

the lease agreement, including maintaining the building in “such a condition that all health

and safety standards are met.” The tenants chiefly complained that the appellees’ poor

maintenance of the building exposed them to toxic levels of mold, causing them to suffer a

myriad of allergic reactions. The appellees moved for summary judgment, arguing that the

tenants failed to offer proof of a causal relationship between the mold in the building and

their reported symptoms. The appellees also argued that the tenants’ other complaints about

conditions of the building, including inoperable elevators, heat, and air conditioning, were

not compensable under any of the claims in the complaint; and the tenants failed to offer

proof of constructive eviction to sustain their claim for breach of the covenant of quiet

enjoyment. The circuit court agreed and granted summary judgment on all the claims in the

tenants’ complaint. The tenants now appeal the circuit court’s order. We affirm in part and

reverse and remand in part.

I. Factual Background

In a complaint filed on August 16, 2018, the tenants alleged that they “were all

residents of Helena Heights Apartments,” and each of them entered into a lease agreement

with Helena Heights through its agent, Gail Wade, who was the regional manager for

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Pioneer. The tenants said that their leases incorporated the “Resident Handbook Rules and

Regulations,” which provides that management and the tenants will cooperate to maintain

the apartments “in such a condition that health and safety standards are met.” The tenants

claimed that their leases also included “a third agreement under the approval of . . . [the]

Phillips County Public Housing Agency,” which provided that “Helena Heights and its

owners and agents ‘shall maintain the dwelling unit . . . as well as common areas.’”

The tenants alleged, nevertheless, that they encountered “persistent issues with mold

and mildew in common areas” as well as “unsafe and unsanitary conditions leading to

infestations by insects and rodents, water leaks in the walls of the building, unrepaired fire

hazards, faulty electrical systems, trip and fall hazards, and sources of carbon monoxide

exposure.” They also said that the temperature in the apartments was occasionally “extremely

hot or cold.” The tenants claimed that as a result of these unsafe conditions, they individually

suffered a host of alleged maladies, including

acute respiratory infections, acute exacerbation of chronic obstructive pulmonary
disease (COPD), shortness of breath, onset of asthma, acute irritation of existing
asthma symptoms, hypertension, headaches, depression, anxiety, skin irritation,
elevated blood-lead levels, insect or animal bites, nausea, vomiting, diarrhea,
pneumonia, embarrassment at having visitors, and increased stress as a result of the
poor maintenance and repair of the Helena Heights Apartments.

The tenants also asserted that the appellees breached the covenants in their leases

because they “failed to repair or replace the damaged or defective areas of the premises” and

“failed to maintain [their] apartments in such a condition that all health and safety standards

[were] met.” Helena Renaissance and its property managers, they said, “failed to maintain

3
[their] dwelling units in a safe and sanitary manner in accordance with HUD’s Housing

Quality Standards for Section 8 Housing Choice Voucher Program.” Regarding their

nuisance claim, the tenants asserted that the appellees “engaged in conduct that created a

condition in the common areas of the apartment building that interfered with the quiet

enjoyment of the areas of the property that the tenants had leased and so should be termed

a nuisance.” The appellees filed an answer and amended answers generally denying the

material allegations in the complaint.1

On February 4, 2020, appellees Helena Renaissance, Pioneer, and Borum moved for

summary judgment. First, they argued that summary judgment was warranted because the

tenants, who claimed various medical issues related to the presence of mold in the apartment

building, could not show entitlement to damages. Specifically, the appellees asserted that the

tenants “failed to provide an expert witness qualified to link issues at Helena Heights to any

medical issue,” and the tenants’ other complaints, including unpleasant odors and difficulty

heating and cooling their apartments, did not “rise to a level of compensable injury under

any of [their] five claims.”

Alternatively, the appellees argued that summary judgment was warranted for several

other reasons. First, they argued that three of the plaintiffs, including Anthony Buggs, Felicia

Stokes, and Shamekia Martin, could not establish breach of the covenants in the lease or the

1
The complaint was serially amended to add additional plaintiffs as well as to
incorporate the findings of Joe Henry, their expert microbiologist, who inspected the mold
conditions at Helena Heights.

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Resident Handbook—as the complaint alleged in claim I and claim II, respectively— because

they never signed a lease. The remaining plaintiffs also could not establish any breach of

those covenants, the appellees said, because the leases that they signed included addendums

that expressly absolved Helena Heights of liability for problems arising from mold or mildew.

The appellees further argued that claim III in the complaint, which alleged breach of the

housing choice voucher dwelling lease and HUD’s housing quality standards, “must fail

because there is no private cause of action under the federal law which created the Section

8 Project-Based Voucher Program” (in which Helena Heights participated). The tenants also

could not prevail on their claim that the appellees had breached the covenant of quiet

enjoyment in their leases because the tenants “failed to show actual or constructive eviction”

because of the alleged issues in the apartment building. The appellees argued that claim V

in the complaint, alleging that they created a nuisance condition in the common areas in the

building, “has no applicability to this case based on the case law in Arkansas.” Finally, Mr.

Borum argued that he was entitled to summary judgment because he “[was] not a party to

any lease agreement and has no personal liability in this matter.”

The appellees attached several signed copies of the mold and mildew addendum to

their motion for summary judgment. The addendum provided, in pertinent part, that

[i]n consideration of the lease of the premises, Landlord shall not be responsible for
any damages, liabilities, claims, or losses, incurred by residents or others inhabiting
the premises arising out of or relating to mold or any other fungus or agent that may
be associated with alleged defects in the premises, include, but not limited to,
property damages, personal injury, adverse health effects, loss of income, emotional
distress, death, loss of use or loss of value of the premises and resident hereby releases
Landlord of the premises and resident hereby releases Landlord from the same. This

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means that the resident shall not seek to hold the Landlord responsible under any
legal theory for any damages whatsoever caused by mold or any other agent. [2]

The tenants filed a response to the summary-judgment motion on March 25, 2020.

First, they argued that the appellees’ claim that the tenants lacked expert testimony to prove

damages “entirely ignores the opinions and testimony of [the tenants’] expert, Joe Henry,

which sets forth the evidence demonstrating that conditions in the building existed that

could lead to injuries and health issues experienced by [the tenants].” According to the

tenants, Mr. Henry’s opinions were “more than sufficient to demonstrate that evidence of

general causation exists in this case as to create issues of material fact,” and “[e]ven as to

specific causation to each individual [tenant], there is sufficient evidence to allow the jury to

reasonably conclude that the mold and mildew was a cause of the health problems [they]

suffered[.]”

Second, the tenants argued that the mold and mildew addendum was unenforceable

because it was not clearly incorporated into the lease agreement and conflicted with a version

of the mold and mildew addendum that appeared in the Resident Handbook. The

addendum in the handbook notably did not include the exculpatory language appearing in

the version that the appellees signed. The tenants also argued that the addendum was an

unenforceable exculpatory clause because the circumstances surrounding its execution (for

2
Appellee Gail Wade did not join the motion for summary judgment or any other
defensive pleading or motion filed in the circuit court. The record does not otherwise
indicate, moreover, that she was served with a summons and a copy of the complaint in
accordance with Ark. R. Civ. P. 4 (2022). Therefore, we consider the claims against her
dismissed by application of Ark. R. Civ. P. 54(b), rather than on their merits.

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each tenant) were unfair. Finally, the tenants asserted that genuine issues of material fact

also remained as to “whether the addendum would apply to the entirety of a [tenant’s] given

residency at Helena Heights” because there was proof, at least regarding one of the tenants,

that an executed addendum was not included with a second lease agreement that she signed

during her stay at Helena Heights.

Third, the tenants argued that the mold and mildew addendum did not effectively

disclaim the duty to maintain the building that the appellees collectively assumed in the

Resident Handbook and through their participation in Low Income Housing Tax Credit

Program, which requires the Arkansas Development Finance Authority (ADFA) to

periodically inspect the premises to ensure compliance with uniform health and safety

standards. In particular, the tenants asserted that the appellees “assumed [those] duties and

responsibilities” by “virtue of their participation in the program administered by ADFA.”

The tenants also explained that they were not claiming that ADFA’s standards created a

private cause of action, as the appellees argued in their motion for summary judgment.

Rather, they alleged that ADFA’s requirements “were incorporated into the lease agreement,

and in failing to comply with those requirements, [the appellees] [were] in breach of the

agreements.”

Fourth, the tenants argued that summary judgment was inappropriate because

“significant issues of fact” remained as to whether they could prove that they were

constructively evicted for purposes of their quiet-enjoyment claims. According to the tenants,

“there is evidence supporting a conclusion that the intolerable conditions at Helena Heights

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did lead some of the individual residents to abandon the property.” Finally, the tenants

insisted that their nuisance claims were “legally cognizable,” and Mr. Borum was properly

included in their lawsuit. In his role as the building manager at Helena Heights, Mr. Borum

was “personally involved in the events surrounding [their] [injuries].”

The appellees filed a reply in which they maintained, inter alia, that there was no

genuine issue of material fact regarding specific causation, and the mold and mildew

addendum, in any event, shielded them from liability. They attached Mr. Henry’s deposition

in support of their argument regarding causation, pointing out that he agreed that the

apartment building did not “have a systemic [mold] issue” and that elevated mold counts

were present only in the apartments occupied by appellants Robert Brown and Pearlie

Franklin Brown. The appellees also highlighted portions of Mr. Henry’s deposition in which

he agreed that “air sampling for mold spores does not and cannot evaluate potential health

risks,” and he would advise clients who suspected mold exposure to undergo further

evaluation and testing. The appellees further argued that other depositions attached to the

tenants’ response (from the tenants themselves) were insufficient to establish either general

or specific causation.

On August 4, 2020, the circuit court issued a letter opinion explaining its reasons for

granting the appellees’ motion for summary judgment. First, the circuit court agreed that

there was no genuine issue of material fact regarding causation. The court found that the

tenants’ claims that their medical issues were related to the presence of mold was “purely

speculative.” Specifically, the court found as follows:

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In this case, health issues vary from another, [from] coughing [to] headache,
and most [tenants] have different issues. Mr. Henry, [the tenants’] expert, “set forth
evidence demonstrating that conditions in the building existed that could lead to
injuries and health issues experienced by the [tenants].” In Mr. Henry’s deposition,
pages 50 and 51, [it says] “that a person suspecting mold exposure is causing symptoms
would be advised to undergo evaluation and testing and have an allergy workup.” He
also stated “that if one removes the exposure, the symptoms should go away.”

....

With the information presented, this court cannot say that there is a question
of fact [on] the issue of causation. Each claim of [the tenants] related to medical issues
is purely speculative with no foundation in science or medicine. The only evidence,
that of Mr. Henry, is, by his own words, speculative, and should be followed up by
testing for an accurate determination. In addition, Mr. Henry states that some
[people] are affected while others may not be affected [by mold]. The court agrees with
Helena Heights that complaints of mold annoyance are not compensable.

The circuit court also ruled that even if there was an issue of fact as to causation, the

mold and mildew addendum shielded the appellees from liability. The court found that the

language in the mold and mildew addendum “is clear that there is a waiver of any

responsibility by the landlord under [any] legal theory for damages caused by mold or

mildew,” and the addendum “would cover the lease, the handbook, and [the] HUD lease.”

In addition, the circuit court found that there was no remaining genuine issue of

material fact on the tenants’ quiet-enjoyment claims. According to the court, there was “no

factual basis on the issue of quiet enjoyment” because there were “some tenants still in the

apartments, some [that] never signed a lease at all, and no evidence was presented to rise to

an action on [that] issue.” The circuit court added that the tenants’ quiet-enjoyment claims

“should also be covered by the [mold and mildew] addendum for most [tenants] and there

would not be a remedy for those who resided there without a lease.”

9
Regarding the tenant’s nuisance claims, the circuit court found that “the law of

nuisance, unreasonably interfering with the use and enjoyment of the lands of another, has

no applicability under these circumstances” because there was “(1) no substantial proof that

the medical issues of the tenants were caused by the alleged mold; (2) no showing that the

[appellees’] conduct was not unreasonable [sic]; and (3) no proof, but mere speculation,

linking the actions of the [appellees] to the complaints of the [tenants].”

The circuit court incorporated all the foregoing findings in an order dismissing the

case with prejudice entered on August 24, 2020. The tenants now appeal that order. We

affirm in part and reverse and remand in part.

II. Standard of Review

“The burden of sustaining a motion for summary judgment is always the

responsibility of the moving party.” Wade v. Bartley, 2020 Ark. App. 136, at 8, 596 S.W.3d

555, 560. “Further, all proof submitted must be viewed favorably to the party resisting the

motion, and any doubts and inferences must be resolved against the moving party.” Id.

“When a movant makes a prima facie showing of entitlement, the respondent must meet

proof with proof by showing a genuine issue as to a material fact.” Id. “Summary judgment

is not proper, however, where evidence, although in no material dispute as to actuality,

reveals aspects from which inconsistent hypotheses might reasonably be drawn and

reasonable minds might differ.” Id. Indeed, “[t]he object of summary-judgment proceedings

is not to try the issues, but to determine if there are any issues to be tried[.]” Id. “[I]f there is

any doubt whatsoever, the motion should be denied.” Id.

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III. Discussion

To quote the appellants’ brief: “Appellants are a group of over twenty elderly low-

income people who are living, or who lived, in an apartment building at 217 Biscoe Street,

Helena, Arkansas, known as ‘“Helena Heights.’” From the evidence in the case, the

conditions in which they were living could be described as appalling. The question presented

in this case below and now to our court is this: can the tenants seek legal redress for those

conditions? It is significant and will be further explained in this opinion that the appellants,

plaintiffs below, were some twenty-four individuals, each suing in his or her own right. While

they certainly allege similar and overlapping claims, this is not a class-action lawsuit, and if

one or more of the plaintiffs’ claims cannot be sustained, it does not defeat the claims of the

others. Therefore, each claim must be examined separately.

As such, we preliminarily affirm the circuit court’s dismissal of the breach-of-contract

claims alleged by appellants Anthony Buggs, Shamekia Martin, and Felicia Stokes. There is

no evidence in the record that those three plaintiffs paid rent, signed a lease, or otherwise

could state a claim that the covenants in the lease were breached.3 See Elsner v. Farmers Ins.

Grp., Inc., 364 Ark. 393, 395–96, 220 S.W.3d 633, 635–36 (2005).

A. Causation – Breach of Contract

We now turn to the remaining tenants’ breach-of-contract claims. First, they argue

that the circuit court erred when it determined that the testimony of a medical expert was

3
Anthony Buggs testified, in fact, that he “never signed a written lease agreement or
[made] any rental payments to [the] Helena Heights Apartment[s].”

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necessary to raise a question of fact regarding “specific causation” or, in other words, whether

the tenants’ exposure to mold caused the illnesses that they claimed in their complaint. They

say that the relationship between mold and respiratory symptoms would be well within the

common knowledge of a jury or, alternatively, that Joe Henry’s expert testimony was

sufficient to establish the causal relationship. The appellees respond that the tenants cannot

establish causation without expert testimony establishing (1) the type and levels of mold that

are generally harmful to humans (general causation); and (2) that the tenants’ alleged injuries

were, in fact, caused by exposure to harmful levels of mold (specific causation).

The appellees point us to Richardson v. Union Pacific Railroad Co., 2011 Ark. App. 562,

at 3, 386 S.W.3d 77, 80, a toxic-tort case, in support of their argument that the circuit court’s

order should be affirmed. In Richardson, we agreed that a plaintiff claiming damages from

exposure to a toxic substance “must adduce evidence of both general and specific causation.”

Id. General causation, we said, “addresses whether a particular agent can cause a particular

illness,” while specific causation “addresses whether that agent in fact caused the particular

plaintiff’s illness.” Id. at 3–4, 386 S.W.3d at 80. Applying these definitions, we held that

causation in toxic-substance cases “requires more than mere proof of exposure to above-

ambient levels of the alleged toxin, and instead requires evidence of the levels of exposure

that are harmful to human beings generally, as well as the plaintiffs’ actual level of exposure

to the defendant’s toxic substance.” Id. at 2–3, 386 S.W.3d at 79. We ultimately upheld the

circuit court’s order granting summary judgment because the appellant did not provide

12
reliable expert testimony that his cancer had been caused by exposure to benzene while he

was a railroad employee.

While the circuit court did not cite Richardson in its letter opinion as authority for its

grant of summary judgment, it is clear from the letter opinion that the circuit court relied

on Richardson for its reasoning. We must recall the specific causes of action set forth by the

plaintiffs. The plaintiffs alleged five causes of action. Four of the causes of action were based

on breach of covenants in the lease agreement, and the fifth cause of action was for nuisance.

It is not a matter of semantics to note that the plaintiffs did not allege any cause of action

sounding in tort, much less toxic tort, against Helena Heights. As such, Richardson is

inapposite here, and the circuit court’s analysis of, and reliance on, Richardson was in error.

Further, we have held that a circuit court errs when it grants summary judgment on a breach-

of-contract claim because proof of causation was lacking. See Crumpacker v. Gary Reed Constr.,

Inc., 2010 Ark. App. 179, at 4, 374 S.W.3d 162, 164. Indeed, nominal damages may be

recovered “for a breach of contract unaccompanied by any actual damage,” W. Union Tel. Co.

v. Aubrey, 61 Ark. 613, 33 S.W. 1963 (1896), and in our view, the possibility of an award of

nominal damages is sufficient to preclude summary judgment in this case. See Glenn v.

HealthLink HMO, Inc., 360 S.W.3d 866, 872 (Mo. Ct. App. 2012). Because of our decision,

we need not discuss the specifics and intricacies of what damages might be available to

individual tenants as the result of a breach of covenants set forth in the complaint. Therefore,

we reverse and remand the circuit court’s order granting summary judgment to the

remaining appellees.

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B. The Mold and Mildew Addendum

Because we are reversing and remanding to the circuit court the causes of action for

breach of contract, we must address the mold and mildew addendum that was included in

the lease agreement. The tenants argue that the appellees cannot avail themselves of the mold

and mildew addendum as a shield to their contractual responsibilities because they expressly

assumed the duty to maintain the apartment building in a “healthful condition” through

covenants in the lease. They also argue—apparently in the alternative—that the appellees

implicitly assumed a duty to maintain the premises in a healthful condition when they

attempted to repair the causes of wet conditions that were favorable to mold as well as any

mold that later developed.4 The tenants further contend that the addendum was an

unenforceable exculpatory clause because the circumstances surrounding its execution (for

each tenant) suggest that they did not know the potential liability that was released. In

4
The tenants also offhandedly suggest that the circuit court erred when it granted
summary judgment on their claims against Cornelius Borum because “an individual
employed by a corporation [who is] personally involved in the events surrounding an injury
. . . may be sued.” Mr. Borum was personally involved, they say, because he attempted (and
ultimately failed) to repair the poor conditions alleged in their complaint. We reject this
argument. While Mr. Borum’s signature appears on a lease renewal (and mold and mildew
addendums,) he was not a party to the lease agreements and, therefore, cannot be liable for
breaching it. “Arkansas recognizes the general rule that where an agent names his principal
and does not exceed his authority when contracting on the principal’s behalf, the agent is
not personally liable upon the contract unless the agent agrees to be.” McCullough v. Johnson,
307 Ark. 9, 11, 816 S.W.2d 886, 887 (1991). The tenants do not make any argument here
that Mr. Borum agreed to be personally liable. Similarly, they make no argument regarding
the personal liability of appellee Pamela Wade, the property manager at Helena Heights.
Thus, we affirm the dismissal as to Borum and Wade. Thus, we affirm the dismissal of
Borum.

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response, the appellees argue that they did not assume any duty to keep the apartment

building free of mold and, in fact, “specifically disclaimed any responsibility for the presence

of mold” in the mold and mildew addendum.

We agree with appellees that, with certain exceptions, landlords generally do not have

the common-law duty to repair or maintain leased premises. A landlord may contractually

agree to repair or maintain leased premises, however, and that is what the lease agreement

herein provides. In reviewing the lease agreement, we agree with the tenants that the

appellees expressly assumed the duty to repair mold conditions in the mold and mildew

addendum itself, and the exculpatory clause, which purports to release the appellees from

liability under “any legal theory,” is unenforceable. Therefore, we hold that the circuit court

erred when it determined that the tenants waived the appellees’ liability for the alleged

breaches of the covenants in the lease.

Arkansas has long recognized the common-law doctrine of caveat lessee, which

provides that “unless a landlord agrees with his tenant to repair leased premises, he cannot,

in the absence of statute, be compelled to do so or be held liable for repairs.” Hurd v. Hurt,

2017 Ark. App. 228, at 4, 519 S.W.3d 710, 712. The state of Arkansas law regarding tenants’

rights is summarized by Professor Howard Brill in his treatise Arkansas Law of Damages,

where he writes as follows:

The Arkansas Residential Landlord-Tenant Act of 2007 modified the common law
but does not place upon the landlord a duty of habitability to provide minimum living
standards. Arkansas may be the only state not to impose such a requirement. In
contrast with the Uniform Act that formed the basis for the Arkansas statute, the law
removes most reciprocal obligations of the landlord. For example, although a tenant

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must keep his unit clean and safe, the landlord has no corresponding obligation to
keep the common areas in the same condition. The tenant must use plumbing,
electrical, sanitary, and other fixtures in a reasonable way; however, the landlord has
no duty to maintain them. The Act has a section of landlord remedies, but no section
on tenant remedies. Thus, Arkansas has maintained a strict application of the
common law of caveat lessee, placing almost no burden on the landlord to provide
for the safety, sanitation, or condition of the leased property.

1 Howard W. Brill and Christian H. Brill, Arkansas Law of Damages § 25.1 (6th ed. 2014).

Indeed, the caveat lessee doctrine remains codified in Arkansas Code Annotated section 18-

16-110 (Repl. 2015), which provides as follows:

No landlord or agent or employee of a landlord shall be liable to a tenant or a
tenant’s licensee or invitee for death, personal injury, or property damage proximately
caused by any defect or disrepair on the premises absent the landlord’s:

(1) Agreement supported by consideration or assumption by conduct of a duty to
undertake an obligation to maintain or repair the leased premises; and

(2) Failure to perform the agreement or assumed duty in a reasonable manner.
In this case, we do not need to look further than the mold and mildew addendum

itself to determine that the appellees agreed to maintain the apartment building in a manner

that kept it free from mold. While the addendum obligates the tenants to perform simple

tasks (such as running bathroom fans and opening windows), it also makes it rather clear

that the appellees will undertake repairs of mold conditions that are beyond the tenants’

control. Specifically, the addendum provides that a tenant must

notify the landlord immediately of any circumstances involving excess moisture or
water leakage such as plumbing leaks or drips, sweating pipes of toilet tanks, as well
as any overflows in the bathroom, kitchen, or laundry facilities (if applicable),
especially in cases where the overflow may have permeated walls, floors, carpeting, or
other floor coverings or cabinets.

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Additionally, tenants must “notify the landlord of any mold growth on surfaces inside the

dwelling unit that cannot be removed or controlled by the tenant.” The tenants also agreed

to “allow the landlord to enter the dwelling unit to inspect and make any necessary repairs.”

(Emphasis added.) Several residents testified, moreover, that the appellees attempted to make

repairs to control the moisture in their respective apartments. Therefore, we conclude the

appellees entered into an agreement to make mold-related repairs.

Additionally, the appellees, having assumed that duty by agreeing to make mold-

related repairs, cannot rely on the exculpatory clause to disclaim liability for breaching it. In

Arkansas, exculpatory contracts are typically used to “absolve [parties] in advance for the

consequences of [their] own negligence,” and as such, they “are not favored by the law.”

Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 148–49, 207 S.W.3d 525, 530 (2005).

The disfavor “is based upon the strong public policy of encouraging the exercise of care”;

therefore, “they are to be strictly construed against the party relying on them.” Id.

Exculpatory clauses must also have the essential elements of a contract, including (1)

competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; and (5)

mutual obligations.” Id. at 152–53, 207 S.W.3d at 533. Mutuality of obligation means “that

an obligation must rest on each party to do or permit to be done something in consideration

of the act or promise of the other; thus, neither party is bound unless both are bound.” Id.

at 153, 207 S.W.3d at 533. “A contract, therefore, that leaves it entirely optional with one

of the parties as to whether or not he will perform his promise would not be binding on the

other.” Id.

17
The exculpatory clause in the mold and mildew addendum is sweeping in its scope,

and it disclaims liability for more than negligent conduct. It provides, in fact, that “the

[tenant] shall not seek to hold the landlord responsible under any legal theory for any damages

whatsoever caused by mold or any other agent.” (Emphasis added.)

Courts in other jurisdictions have invalidated similar exculpatory clauses for lack of

mutuality of obligation. The Illinois Supreme Court’s decision in Jewelers Mutual Insurance

Co. v. Firstar Bank Illinois, 820 N.E.2d 411 (Ill. 2004), is particularly instructive. In that case,

diamonds and loose jewelry were stolen from three safety-deposit boxes that Firstar Bank

leased to jewelry dealers. The safety-deposit-box agreements provided that the relationship of

the parties was that of landlord and tenant, as opposed to bailor and bailee. The agreement

also contained the following exculpatory clause:

It is understood that said bank has no possession or custody to, nor control over, the
contents of said safe and that the lessee assumes all risks in connection with the
depositing of such contents, that the sum mentioned is for the rental of said safe
alone, and that there shall be no liability on the part of said bank, for loss of, or injury to, the
contents of said box from any cause whatever unless lessee and said bank enter into a special
agreement in writing to that effect, in which case such additional charges shall be made
by said bank as the value of the contents of said safe, and the liability assumed on
account thereof may justify. The liability of said bank is limited to the exercise of ordinary
care to prevent the opening of said safe by any person not authorized and such opening by
any person not authorized shall not be inferable from loss of any of its contents.

Id. at 412–13 (emphasis added). None of the jewelers entered the “special agreement”

mentioned in the exculpatory clause, and Jeweler’s Mutual Insurance Company, which

insured two of the boxes, sued Firstar for breach of contract and negligence. Id. at 413.

Relying on the exculpatory clause, the bank successfully moved for summary judgment.

18
The Illinois Supreme Court ultimately reversed the lower court’s order granting

summary judgment. The court observed that the exculpatory clause was ambiguous because

in the first sentence, “the [bank] disclaims liability for any loss whatsoever,” and in the second

sentence, “defendant assumes one particular liability.” Id. at 415. That is, the bank “must

exercise ordinary care to prevent unauthorized persons from accessing the box.” Id. The

supreme court went on to hold, however, that

[w]hatever the meaning of the exculpatory clause, it clearly cannot be applied to a
situation in which [the bank] is alleged to have breached its duty to exercise ordinary
care to prevent unauthorized persons from opening the box. This is a specific duty
that [the bank] assumed in the contract, and it formed the heart of the parties’
agreement. A party cannot promise to act in a certain manner in one portion of a contract
and then exculpate itself from liability for breach of that very promise in another part of the
contract.

Id. at 415–16 (citations omitted) (emphasis added); see also Com. Movie Rental, Inc. v. Larry

Eagle, Inc., 738 F. Supp. 227, 230 (W.D. Mich. 1989) (holding that the contract at issue was

“void for lack of mutuality because it completely exempts Commercial from all liability for a

breach”).

We find the Illinois Supreme Court’s opinion persuasive here. The appellees, having

agreed to make mold-related repairs in the manner that we described, could not validly

disclaim any liability for breaching that agreement. Accordingly, we hold that the exculpatory

clause in the mold and mildew addendum is unenforceable.

C. Quiet Enjoyment

The lease agreement between the tenants and the appellees expressly includes a

covenant of quiet enjoyment. The lease provides, in pertinent part, that “landlord covenants

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and agrees with [the] tenant that upon the tenant paying rent, and observing and performing

all of the terms, covenants and conditions on [the] tenant’s part to be observed and

performed under this Lease, [the] tenant may peaceably and quietly enjoy the premises,

subject nonetheless to the terms and conditions of this lease.” In addition, the law in

Arkansas is clear that every residential lease has an implied covenant of quiet enjoyment. See

Walnut Ridge Golf Club, Inc. v. City of Walnut Ridge, 2010 Ark. App. 372, at 7, 375 S.W.3d

679, 683. That is only the beginning of the inquiry. What is covered by the implied or explicit

promise? And most significant, must the tenant be evicted—actually or constructively—for the

promise to be breached?

Arkansas law does not provide much guidance on whether constructive eviction is

necessary for a lessee to maintain a cause of action for breach of the covenant of quiet

enjoyment in a lease. Our supreme court has addressed the issue in the context of warranty

deeds, holding that “with some exceptions (not applicable here), the rule is that an action

for damages on breach of a covenant of quiet enjoyment cannot be maintained where there

has been no eviction,” Riddle v. Udouj, 371 Ark. 452, 457, 267 S.W.3d 586, 590 (2007)

(quoting Thompson v. Dildy, 227 Ark. 648, 651, 300 S.W.2d 270, 272 (1957)), and the

suggestion that the rule should be applied to the landlord-tenant relationship has appeared

only in Justice Fogelman’s dissenting opinion in Trace X Chemical, Inc. v. Highland Resources,

Inc., 265 Ark. 468, 476, 579 S.W.2d 89, 93 (1979) (Fogelman, J., dissenting). The circuit

court apparently had the view that a breach does not occur unless a tenant is forced to

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abandon the premises, and the appellants do not appear to take issue with that conclusion

here.

Rather, the tenants confine their argument to the sufficiency of their proof, arguing

that several of them offered deposition testimony that the conditions at Helena Heights

forced them to leave their apartments. We agree. The circuit court here broadly granted

summary judgment on all the tenants’ claims because there were “some tenants still in the

apartments . . . and no evidence was presented to rise to an action on [the quiet enjoyment]

issue.” (Emphasis added.) The court apparently took an all-or-nothing approach, treating this

case as though it was filed as a class action. It was not. Several of the tenants, in fact, alleged

that they were forced to leave their apartments due to the unhealthy conditions. Accordingly,

we reverse and remand so that the circuit court may address each tenant’s claims individually.

D. Nuisance

Finally, the tenants argue that the circuit court erred by granting summary judgment

on their nuisance claim. They assert that a person creates a nuisance if he or she “uses, and

employs, his own property in such an unwarrantable and unreasonable manner as to annoy,

injure, or endanger the comfort, repose, health, or safety of another in the use of his

property,” and they insist they came forward with evidence demonstrating a remaining

genuine issue of material fact on whether the appellees created a nuisance by allowing

“conditions for mold and insects to flourish.” The appellees respond that the tenants’

allegations failed to state a cause of action for nuisance because “the law of nuisance has no

applicability to a landlord-tenant relationship.”

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The appellees are correct; however, the court was misguided in its findings. The

circuit court rejected the nuisance claim on a finding that the tenants failed to offer proof

supporting the elements of the claim. Nevertheless, we “may affirm a circuit court where it

has reached the right decision, albeit for the wrong reason, so long as the issue was raised

and the record was developed below,” Ark. State Bd. of Election Comm’rs v. Pulaski Cnty. Election

Comm’n, 2014 Ark. 236, at 12, 437 S.W.3d 80, 87, and, as indicated above, the appellees

argued in their motion for summary judgment that the law of nuisance does not apply to the

landlord-tenant relationship.

Arkansas defines a nuisance as “conduct by one landowner that unreasonably

interferes with the use and enjoyment of the lands of another and includes conduct on

property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of a nearby

property.” Aviation Cadet Museum v. Hammer, 373 Ark. 202, 207, 283 S.W.3d 198, 203 (2008)

(emphasis added). This definition plainly does not include the type of nuisance claim that

the tenants advanced in the complaint, in which they alleged nuisances affecting their use

and enjoyment of the same property owned by the offending landowner—here Helena

Renaissance.

Our view is in accord with other jurisdictions that have held that a tenant cannot

raise a cognizable nuisance claim against his or her landlord. In Wiesman v. Hill, 629 F. Supp.

2d 106 (D. Mass. 2009), for example, a resident of a public housing project filed a complaint

against the housing authority that owned her apartment building as well as several housing-

authority employees. Among other things, the complaint alleged a nuisance claim against

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the defendants for failing to abate the behavior of a disruptive neighbor. The district court,

applying Massachusetts law, dismissed the claim because “a nuisance claim requires two

separately owned parcels of real property.” Id. at 114. More particularly, “a tenant cannot sue

her own landlord for a nuisance on the property that the tenant rents from the landlord.”

Id. (internal citation and quotation marks omitted). Rather, “a suit for breach of the covenant

of quiet enjoyment is the proceeding a tenant may bring against her landlord for interference

with the use and enjoyment of the rented property.” Id.

A more recent decision from the United States District Court for the District of

Kansas is consistent with Weisman. In Coe v. Cross-Lines Retirement Center, Inc., ___ F. Supp.

3d ___, 2022 WL 17555300, at *5 (D. Kan. Dec. 9, 2022), the district court dismissed

nuisance claims brought by tenants of an apartment complex that catered to senior citizens.

The court observed that “the vast majority of courts,” including the Third Circuit and the

Tenth Circuit, “have held that an action for private nuisance is designed to protect

neighboring landowners from conflicting uses of property” Id. at *4. The court also summarized

its reasoning for dismissing the tenants’ nuisance claims in the following instructive manner:

The court believes that the Kansas Supreme Court would likely adopt the reasoning
of most courts in determining that an action for private nuisance is unavailable to
tenants against their landlords. In arriving at this conclusion, the court agrees with
the Third and the Tenth Circuits’ reasoning that nuisance law historically is meant
to regulate conflicts between neighboring or at least separate land uses, not issues
originating on one’s own property. Plaintiffs, as tenants, are not otherwise powerless
against [the] defendants as a landowner would be against a neighbor. Negotiation,
withholding rent, and suing under any number of recognized theories available to
tenants against landlords . . . are perfectly available to them. Adding private nuisance
to the list of available actions would be needlessly cumulative while endangering

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future lessors with liability for purposely leasing cheap premises which openly come
with defects.

Id. at *5. Therefore, because Arkansas defines a private nuisance in the same manner as the

“vast majority” of other courts, and that definition has been persuasively applied to exclude

tenants’ nuisance claims against their landlords, we affirm the circuit court’s order on this

point.

IV. Conclusion

We affirm the circuit court’s order of summary judgment in dismissing the tenants’

claims for damages for nuisance. Except as to the three tenants noted above, we reverse the

order of summary judgment on the tenants’ breach-of-contract claims.

Affirmed in part; reversed and remanded in part.

THYER and HIXSON, JJ., agree.

David A. Hodges, for appellants.

Munson, Rowlett, Moore & Boone, P.A., by: Mark S. Breeding and Zachary Hill, for

appellees.

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