Expo Properties, LLC v. Experient, Inc

956 F.3d 217

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 15, 2020
• Docket: 19-1750
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1750

EXPO PROPERTIES, LLC; MERCHANTS PROPERTIES, LLC,

Plaintiffs - Appellants,

v.

EXPERIENT, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:14-cv-00688-GLR)

Argued: January 28, 2020 Decided: April 15, 2020

Before GREGORY, Chief Judge, WILKINSON and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Wilkinson joined.

ARGUED: Matthew John Connolly, NUTTER, MCCLENNEN & FISH, LLP, Boston, Massachusetts, for Appellants. Christine Pham, ROSENBERG MARTIN GREENBERG, LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Michael A. Schlanger, SCHLANGER LITIGATION CONSULTING LLC, Washington, D.C., for Appellants. Gerard P. Martin, ROSENBERG MARTIN GREENBERG, LLP, Baltimore, Maryland, for Appellee. WYNN, Circuit Judge:

Plaintiffs-Appellants Expo Properties and Merchants Properties own an office

complex in Maryland, which they leased to Defendant-Appellee Experient. When the lease

term ended, there were disputes over the condition the premises should be in when

Defendant vacated, and who should pay for any work to put the premises into that

condition. Some general provisions in the parties’ lease suggested that all costs should go

to Defendant, but other, specific, provisions outlined how costs should be shared.

In the ensuing litigation, Plaintiffs relied on an estoppel certificate from several

years prior, signed by Defendant, that suggested a lease modification had occurred to

conform the lease to Plaintiffs’ reading. Plaintiffs argued that Defendant’s liability

stemmed from that lease modification. When both parties moved for partial summary

judgment, the district court held that no lease modification had occurred. For the reasons

that follow, we affirm the district court.

I.

At bottom, this case is about a Lease that covered an office building complex (the

“Premises”) in Frederick, Maryland. The origins of this Lease lie several decades ago with

predecessors-in-interest to today’s parties. While this case turns on unambiguous language

found within the four corners of the Lease, the history of the Premises and the Lease is

relevant to Plaintiffs’ arguments.

In March 1994, original landlord John Laughlin leased the Premises to original

tenant Galaxy Registration, Inc. The original Lease had a term of five years with a renewal

option for another five years. As a commercial lease, it spanned thirty-one articles, with

2 subparts, including some articles that used general language to obligate the tenant to cover

large categories of expenses, but also some articles with tailored cost-sharing provisions.

Later that month, landlord Laughlin and tenant Galaxy executed an amendment to the

Lease, which concerned the construction of a 25,700 square foot addition to the Premises.

This amendment was signed by both Laughlin and Galaxy. 1 In April 1997, a Second

Amendment—also signed by both Laughlin and Galaxy—adjusted the rent. Both

amendments also adjusted the term of the Lease.

In May 1998, landlord Laughlin wrote a letter (the “1998 Letter”) to tenant Galaxy.

The 1998 Letter concerned the terms of the Lease and arose from a dispute over who would

pay for a new fire protection system. According to the 1998 Letter, Galaxy had told

Laughlin that Galaxy was not responsible under the Lease for any costs associated with

work done on building infrastructure. Laughlin wrote the 1998 letter to “point out” that this

was not what the Lease said. J.A. 377. The 1998 Letter states, in relevant part, “our lease

makes it clear that all costs for repairs, maintenance, and capital improvements will be

borne by [the tenant] as they had been in the past when I owned both the company and the

building.” J.A. 377. In support, Laughlin only cited Article 4 (D) of the Lease. Article 4

(D) and its subparts related to “Additional Rent Payments.” J.A. 334-36. The 1998 Letter

was signed by landlord Laughlin only.

1 Over the life of the Lease, there would be four more amendments, all bearing the title “Amendment,” and all signed by landlord and tenant together. There is no dispute that these five amendments modified the Lease. 3 In 2002, the parties executed a Third Amendment to renew the Lease for an

additional five-year term. This Third Amendment also noted that Galaxy had become Expo

Exchange, LLC. The name change was on account of a change in ownership structure.

Tenant Expo Exchange is not to be confused with Plaintiff-landlord Expo Properties.

In 2004, original landlord Laughlin transferred his interest in the Lease to Expo

Properties, LLC—one of the Plaintiffs in this case. Landlord Expo Properties and tenant

Expo Exchange executed a Fourth Amendment in 2005 wherein the tenant leased more

space that had been constructed. The Fourth Amendment specified that the additional

space, totaling approximately 11,150 square feet, would be rented on a “Triple Net” basis.

J.A. 369. This is the first and only time “net lease” language appears in either the Lease or

the five uncontested amendments.

In 2006, Merchants Properties, the second Plaintiff in this case, acquired all

membership interests in landlord Expo Properties. In the course of the acquisition, tenant

Expo Exchange signed an Estoppel Certificate for Merchants Properties. 2 Merchants

Properties needed this Estoppel Certificate because it was securing a loan to finance the

purchase, and receipt of the Estoppel Certificate was a condition of the loan. Tenant Expo

2 An estoppel certificate is:

A signed statement by a party (such as a tenant or a mortgagee) certifying for another’s benefit that certain facts are correct, such as that a lease exists, that there are no defaults, and that rent is paid to a certain date. A party’s delivery of this statement estops that party from later claiming a different set of facts.

Estoppel Certificate, Black’s Law Dictionary (10th ed. 2014).

4 Exchange executed the Estoppel Certificate because Article 26 of the Lease required it to

do so. Article 26 specified that if the Lease had been modified, an estoppel certificate would

state the way in which it was modified and include a copy of the modification agreement.

On its first page, the Estoppel Certificate recited that the original Lease had been

“modified and amended” by a list of instruments, including, without elaboration, the

“[l]etter dated May 1, 1998 from John R. Laughlin to Mr. Michael Goodwin, President and

CEO of Galaxy . . . .” J.A. 373. Another provision in the Estoppel Certificate stated that

Articles 4 D(2), 4 D(3), and 8 were “clarified” by the 1998 Letter, and that “Tenant

acknowledges that all repairs . . . are the responsibility of Tenant . . . .” J.A. 375. In this

same provision, the Estoppel Certificate quoted Article 8 of the Lease “in pertinent part.”

J.A. 375. It did not specify that any of the language of Article 8—or the language of any

other article—had been modified or deleted.

After the issuance of the Estoppel Certificate, Defendant Experient became

successor in interest to tenant Expo Exchange. This created the present alignment of

parties: Plaintiffs Expo Properties and Merchants Properties as landlords, and Defendant

Experient as tenant.

In 2011, the parties executed a Fifth Amendment to extend the Lease to July 2013.

This Fifth Amendment, in its recitals, defined “the existing Lease” as “the LEASE

5 AGREEMENT executed between [the parties] on March 17, 1994; its Four subsequent

Amendments . . . and the Estoppel Certificate dated July 18, 2006.” J.A. 384. 3

The instant dispute began in 2012 when Defendant was preparing to vacate the

premises. In June 2012, Expo Properties requested that Defendant provide inspection

reports for the roof of the building, as well as the heating, ventilation, and air conditioning

(“HVAC”) systems. In January 2013, Defendant sent summary reports to Expo Properties.

Expo Properties responded later that month with a letter that told Defendant to make the

repairs recommended in the summaries. The letter also notified Defendant that Expo

Properties would send its own inspectors and Expo Properties expected Defendant to make

any additional repairs or replacements that the new inspectors identified. This letter

supported the repair and replacements demand with reference to the Fifth Amendment to

the Lease, the Estoppel Certificate, and the 1998 Letter. It characterized the Estoppel

Certificate and 1998 Letter as amendments to the Lease.

Subsequently, Expo Properties’ inspectors, KCI Technologies, Inc., prepared a

detailed assessment of the Premises, dated May 30, 2013. That same day, Expo Properties

sent the KCI assessment to Defendant with an email reiterating that “all of the work

identified in . . . the KCI report should be performed by [Defendant] before the expiration

3 Before the district court, Plaintiffs argued that this paragraph of the Fifth Amendment expressly incorporated the Estoppel Certificate into the Lease. The district court held it did not because recitals are not an operative part of an agreement. Expo Properties, LLC v. Experient, Inc, No. GLR-14-688, 2016 WL 3997290, at *8 (D. Md. July 26, 2016); see Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, 938 F.3d 113, 127 (4th Cir. 2019) (“Maryland law recognizes the general principle that . . . recitals are not binding . . . .”). Plaintiffs have not renewed this argument on appeal.

6 of the Lease term.” J.A. 139. Defendant did not perform the requested work. After

Defendant vacated on schedule in July 2013, Plaintiffs sued in the District Court of

Maryland for breach of contract, promissory estoppel, negligence, and declaratory relief. 4

In September 2015, Defendant moved for partial summary judgment. Defendant’s

claims from that motion that are relevant to this appeal are: (1) neither the 1998 Letter nor

the Estoppel Certificate amended the Lease; (2) Defendant was not obligated to replace

HVAC units and carpeting; and (3) Defendant was not obligated to pay for structural

repairs that Plaintiffs had not made and charged costs for as additional rent during the Lease

term. 5 Plaintiffs responded with a cross-motion for partial summary judgment. Plaintiffs

sought a declaratory judgment that, relevantly: (1) the Estoppel Certificate had amended

the Lease; (2) Defendant was required to pay for all repairs to the Premises; and (3)

Defendant was required to return the Premises in the same good order and original

condition in which Defendant and its predecessors received them.

At the heart of these claims were Article 8 of the Lease, which had a cost-sharing

provision for structural repairs, and Article 24, which had an “ordinary wear” surrender

clause exception. The Article 8 provision was relevant for Defendant’s claims (1) and (3)

and Plaintiffs’ claims (1) and (2). Plaintiffs took the position that the Lease bound the tenant

to a sweeping obligation to pay for any and all costs related to the building in every

instance—entirely contrary to any sort of cost-sharing under Article 8. Therefore, Plaintiffs

4 In the ligation before the district court, the negligence claim was dismissed. 5 Defendant also moved for summary judgment that it was not obligated to remove interior walls and that Plaintiffs were not entitled to holdover rent. The district court did not grant summary judgment on these issues and they are not relevant to this appeal. 7 pursued the theory that the Estoppel Certificate and the 1998 Letter amended the Lease to

eliminate the Article 8 cost-sharing provision, as well as any other cost-sharing language

in the Lease. Article 24’s ordinary wear provision is relevant to Defendant’s claim (3) and

all of Plaintiffs’ claims. The issue was whether the “ordinary wear” exception applied to

the return or replacement of the HVAC units and carpets.

The district court granted full or partial summary judgment to Defendant on the

claims relevant to this appeal. First, the district court held that neither the Estoppel

Certificate nor the 1998 Letter amended the Lease. For the HVAC units, the district court

held that the Lease required Defendant to pay for repairs and to return the Premises in the

same good order and condition which Defendant received them, except for ordinary wear.

Because Plaintiffs contended that the Lease required Defendant to replace HVAC units that

were installed when the building was constructed and to replace original thermostats with

programmable thermostats, the district court determined that Plaintiffs were actually

asking for upgrades—which the Lease did not require Defendant to perform. While the

same “ordinary wear” exception applied to carpets as to HVAC units, because the Lease

had a separate provision for carpets that created a dispute of material fact, the district court

granted in part and denied in part Defendant’s motion as to carpeting. Finally, as to the roof

and other structural repairs, the district court held that Article 8 of the Lease required the

landlord to exercise its option to enter the Premises and make necessary structural repairs

during the term of the Lease in order to charge costs to the tenant as additional rent; because

the Lease had expired, Plaintiffs could no longer pass costs to Defendant. Accordingly, the

district court granted Defendant’s motion as to structural repairs.

8 This treatment of Defendant’s motion necessarily meant that the district court

denied Plaintiffs’ converse claims: the Estoppel Certificate did not amend the Lease,

Defendant was not required to pay for all costs associated with the building, and

Defendant’s obligation to return the Premises in the same good order and condition in

which they were received was subject to an ordinary wear exception.

Following the district court’s decision, Plaintiffs gave notice of appeal. Shortly

thereafter, the parties stipulated to dismissal with prejudice of all remaining claims before

the district court. This included dismissal of the carpet claim.

II.

This Court reviews a grant of summary judgment de novo. Lee v. Town of Seaboard,

863 F.3d 323, 327 (4th Cir. 2017). The review consists of whether there are any genuine

issues of material fact, or whether the district court erred in applying the substantive law.

Id. This Court views the evidence in the light most favorable to the nonmoving party. Id.

III.

Plaintiffs direct our attention to three purported errors of the district court. Plaintiffs

allege that the district court erred (1) by rejecting the proposition that estoppel certificates

are legally binding; (2) by not interpreting the lease to give effect to its “net lease” nature;

and (3) by ruling inadmissible course of performance evidence that the parties treated the

lease as a net lease and that the parties treated the Estoppel Certificate as legally binding.

Generally, Plaintiffs would like the Estoppel Certificate to control this case—either

as a contract amendment in the traditional sense, or as a clarification of an ambiguity in the

original Lease, or as a special legal document in a class of its own. Thus, instead of

9 challenging the district court’s decision piece-by-piece, Plaintiffs advocate for a

sweepingly different interpretation of the Lease.

But after conducting a de novo analysis of the Defendant’s obligations under the

Lease, we find no error in the district court’s decision. Not only was the district court

correct that the Estoppel Certificate in this case did not alter obligations under the Lease,

but it was also correct that the Lease was unambiguous regarding the disputed items and

therefore properly held that Plaintiffs’ parol evidence was inadmissible.

A.

We begin with the question of whether either the 1998 Letter or the Estoppel

Certificate modified the Lease. Plaintiffs characterized these documents as lease

modifications because, in their theory of this case, the 1998 Letter and the Estoppel

Certificate restructured the Lease by eliminating any and all cost-sharing provisions and

language, thereby making the tenant solely responsible for all building costs. Because

neither document evinces mutual assent to modify the Lease, we hold that neither

document modified the cost-sharing provisions in the Lease.

The Lease contained a choice-of-law provision specifying Maryland law, and the

parties do not dispute that Maryland law applies. Under Maryland law, to modify a

contract, “there must be mutual assent.” L & L Corp. v. Ammendale Normal Inst., 236 A.2d

734, 736 (Md. 1968). Manifestation of mutual assent includes two issues: “(1) intent to be

bound, and (2) definiteness of terms.” Cochran v. Norkunas, 919 A.2d 700, 708 (Md.

2007). There are many factors that may be relevant to determining mutual assent, “but the

most important factor is the language of the agreement.” Id. at 709. Turning to the language

10 of the agreement, Maryland uses the “law of the objective interpretation of contracts.”

Calomiris v. Woods, 727 A.2d 358, 363 (Md. 1999). Thus, “[the] search to determine the

meaning of a contract is focused on the four corners of the agreement.” Cochran, 919 A.2d

at 710.

Starting with the Estoppel Certificate, like the district court, we find it significant

that the Estoppel Certificate was signed by one party only. This, despite an integration

clause in the Lease that required amendments to be signed by both landlord and tenant. In

contrast, the five uncontested amendments to the Lease were signed by both parties. So,

within the four corners of the relevant documents, there is no evidence of intent to be

bound. Furthermore, as the district court noted, the Estoppel Certificate does not label itself

as an amendment to the Lease. It also does not describe how it modifies any obligation

under the Lease. It neither inserts language nor deletes language. Nowhere does it state that

it eliminates any cost-sharing provisions of the Lease. While it quotes Article 8 (which

related to disputed structural repairs) “in pertinent part” and does not quote the cost-sharing

portion of that section, a quotation “in pertinent part” is not equivalent to an intentional

deletion of language not quoted. J.A. 375. Thus, the Estoppel Certificate also lacks

definiteness of terms.

The 1998 Letter has the same shortcomings as the Estoppel Certificate: it is signed

by only one party and does not specify how it would modify the Lease. Furthermore, the

1998 Letter does not mention Article 8. Accordingly, because they lack mutual assent,

neither the Estoppel Certificate nor the 1998 Letter modified the Lease.

11 On appeal, Plaintiffs contend that mutual assent was irrelevant to the analysis here

because requiring mutual assent “misses the whole point of an estoppel certificate, not just

the estoppel certificate in this case, but every estoppel in every case in every state going

back decades.” Appellants’ Br. at 40. This is not correct. See, e.g., Pocatello Hosp., LLC

v. Quail Ridge Med. Inv’r, LLC, 330 P.3d 1067, 1074 (Idaho 2014) (“[I]f an estoppel

certificate does not explicitly modify the terms of the lease, it is not a mechanism by which

a lease agreement may be modified.”). Just as every lease is different, every estoppel

certificate is also different. Moreover, there is no national law of estoppel certificates. See

HRC Guam Co. v. Bayview II LLC, 2017 Guam 25 ¶¶ 39-43 (discussing state-by-state

variation in enforcement of estoppel certificates).

But there is state contract law. This Estoppel Certificate did not satisfy the

requirements of Maryland contract law for modification of a contract. Therefore, it did not

modify the Lease under Maryland law. 6

6 Plaintiffs also argue that because Defendant executed the Estoppel Certificate for the benefit of the parties involved in Merchant Properties’ purchase of Expo Properties, Defendant gave consideration that rendered a promise contained in the Estoppel Certificate enforceable against Defendant. Plaintiffs suggest that so long as both a promise and consideration exist among a group of parties, the promise is enforceable as a contract. Plaintiffs cite the commentary to § 71 of the Restatement (Second) of Contracts for support. That section states, “It matters not from whom the consideration moves or to whom it goes. If it is bargained for and given in exchange for the promise, the promise is not gratuitous.” Restatement (Second) of Contracts, § 71 cmt. e (Am. Law Inst. 1981) (emphasis added). That statement is distinguishable from Plaintiffs’ contention because, here, Plaintiffs want to enforce a purported promise made by the same party who gave the consideration, rather than a promise made to the party that gave the consideration. We further note that Plaintiffs have gestured towards, but not expanded, a theory of promissory estoppel. Under Maryland law, promissory estoppel has four elements, one of which is “a clear and definite promise.” Pavel Enters., Inc. v. A.S. Johnson Co., Inc., 674

12 B.

In the alternative, Plaintiffs argue that the 1998 Letter and the Estoppel Certificate,

as well as course-of-performance evidence and trade-usage evidence, clarified an

ambiguity in the Lease, and in that way eliminated any cost-sharing. Plaintiffs’ proposed

ambiguity is that the Lease obligated Defendant to pay “100 percent of the cost of all

maintenance and repairs (including structural repairs), no matter what the amount was, and

no matter whether the cost was characterized as an expense or a capital improvement,” but

this was inconsistent with the cost-sharing provisions contained in Articles 6 and 8 of the

Lease. Appellants’ Br. at 43. In effect, Plaintiffs present a circular argument that the Lease

is ambiguous because it says something contrary to their litigation position. The district

court held that the Lease unambiguously does not allocate all costs for all maintenance and

repairs, no matter what, to the tenant. We agree. Accordingly, Plaintiffs’ parol evidence is

inadmissible on this point.

Maryland follows the “law of the objective interpretation of contracts.” Calomiris,

727 A.2d at 363. “[A] written contract is ambiguous if, when read by a reasonably prudent

person, it is susceptible of more than one meaning.” Id. A determination of ambiguity

includes consideration of “the character of the contract, its purpose, and the facts and

A.2d 521, 532 (Md. 1996). The district court found that the Estoppel Certificate “makes no promises.” Expo Properties, 2016 WL 3997290, at *8. As Plaintiffs did not develop— either here or before the district court—their contention that this Estoppel Certificate, an instrument which traditionally makes representations of fact, contained a promise, we do not consider this issue. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (party that mentioned argument in a header but did not develop that argument waived it). 13 circumstances of the parties at the time of execution.” Id. (quoting Pac. Indem. Co. v.

Interstate Fire & Cas. Co., 488 A.2d 486, 488 (Md. 1985)). “[T]he clear and unambiguous

language of an agreement will not give []way to what the parties thought that the agreement

meant or intended to mean.” Id. (quoting Gen. Motors Acceptance Corp. v. Daniels, 492

A.2d 1306, 1310 (Md. 1985)). Therefore, a court may consider the context of a transaction

or the custom of the trade, but may not consider intentions and negotiations of the parties.

Id. “[O]nly where there is an ambiguity in the contract is the conduct of the parties available

as practical construction of its meaning.” Walker v. Associated Dry Goods Corp., 189 A.2d

91, 97 (Md. 1963). “[W]hen the language of the contract is plain and unambiguous there

is no room for construction, and a court must presume that the parties meant what they

expressed.” Gen. Motors Acceptance Corp., 492 A.2d at 1310.

The Lease contains cost-sharing provisions for specific items. The parties plainly

and unambiguously expressed that they meant to share certain costs. Article 8 of the Lease

addresses repairs, including structural repairs (such as roof work), providing in relevant

part:

Tenant shall be responsible to make all necessary repairs during the term . . . to the roof . . . [,] the exterior walls, foundations, sidewalks, parking lots, and driveways, and Tenant agrees that Landlord is under no obligation to perform any repairs and/or maintenance with respect to the Leased Premises. . . . [Landlord] shall have . . . [the] right . . . to enter . . . [and] to make such reasonable structural repairs and maintenance . . . as the Landlord may deem necessary or proper. The cost of all structural repairs and maintenance, whether performed by the Tenant or Landlord, shall be borne by the Tenant as additional rent hereunder, except in those instances where (i) the structural repair or maintenance is not made necessary in whole or in part as a result of Tenant’s negligence, (ii) the cost of an item of structural repair or maintenance is Five Thousand Dollars ($5,000.00) or more, and (iii) the actual economic life of such structural repairs or maintenance is in excess of

14 the term of the Lease then in effect, in which case one half (1/2) of the cost thereof shall be paid by the Tenant as additional rent hereunder and one half (1/2) of the cost thereof shall be paid by the Landlord.

J.A. 341-42.

Thus, with respect to the roof and other structural items, the tenant is responsible

for making necessary repairs during the term of the Lease, although the landlord has a right

to enter the Premises and make repairs the landlord deems necessary. Except in the

enumerated circumstances, the tenant bears the costs for the necessary repairs made by

either the tenant or the landlord, paying them “as additional rent.” In the enumerated

circumstances, however, the tenant and landlord split the costs evenly.

Considering the character of this contract—a renewable commercial lease with a

five-year term—there is nothing out of the ordinary about Article 8. Where the tenant

caused a problem by its negligence, the tenant pays. Otherwise, for expensive work that

will benefit the landlord even after the tenant leaves, the landlord must pay some of the

cost. Moreover, the structure of the provision conditions the tenant’s cost-burden on a

repair having been made, which limits the tenant’s obligation to repairs from which the

tenant will benefit during the tenancy. Thus, looking to the context of the transaction,

Article 8 is a reasonable Lease provision as drafted.

Nevertheless, Plaintiffs point to other Lease sections which they contend conflict

with Article 8’s cost-sharing provision and render the Lease ambiguous. Specifically,

Plaintiffs claim that Article 8 was internally ambiguous by making the tenant responsible

for all necessary repairs but then including a cost-splitting provision, and that Article 8 is

15 inconsistent with Articles 2, 4, and 6, which all contain sections broadly allocating costs to

the tenant.

But Article 8 is not inconsistent with itself, or with other provisions in the Lease.

Article 8 starts by allocating costs to the tenant. It then says, “except in those instances,”

and proceeds to set out the instances in which the tenant and landlord will share costs. The

cost-sharing provision here is a cogent and specific exception to a general rule.

Article 2 of the Lease concerns the landlord’s delivery of the Premises in “as is”

condition, condition of improvements, and tenant’s fixturization. J.A. 332. It provides that

the landlord “shall not be responsible to perform any work with respect to the [Premises],

it being expressly understood that any work, special installations, and other fit-ups shall be

carried out by the Tenant at Tenant’s sole cost and expense in accordance with Plans . . .

that are subject to the prior written approval of the Landlord.” J.A. 332-33. The section

goes on to forbid mechanics’ liens that affect the Landlord’s interest in the Premises, and

to state that the Landlord has made no promises to remodel the Premises. In sum, this part

of the Lease limits the landlord’s obligations with respect to the delivery and upgrade of

the Premises. It does not conflict with the structural repairs cost-sharing of Article 8.

Article 4 of the Lease relates to the tenant’s rental covenants, and it contains many

subsections. Plaintiffs focus their arguments on Article 4 (D)(2) and Article 4 (D)(3).

Article 4 (D)(2) of the Lease provides in relevant part:

Tenant agrees to pay the costs and expenses paid or incurred by or on behalf of Landlord for managing, operating, maintaining and repairing the Leased Premises, including, without limitation, the cost of . . . maintenance and repair and replacement of utility systems, . . . except as hereinafter provided.

16 J.A. 334-35.

Article 4 (D)(2) does not conflict with Article 8. Again, Article 8 starts with the

proposition that the tenant bears costs for repairs made, but then states that in specified

circumstances the costs will be split. The Article 4 (D)(2) language that the tenant agrees

to pay costs mirrors Article 8’s starting proposition. To the extent Article 4 (D)(2) and

Article 8 both address maintenance and repair of the Premises, the specific exception to the

general rule—that is, the cost-sharing provision of Article 8—is unambiguous.

Nor is there any inconsistency between Article 4 (D)(3) and Article 8. Article 4

(D)(3) allocates to the tenant the costs of capital improvements that are intended to reduce

“Landlord expenses” as well as capital improvements that are required by law. J.A. 335.

For more expensive improvements that are not required by law, the landlord must seek the

tenant’s prior written approval, which is not to be unreasonably withheld. “Landlord

expenses” is not a defined term in the Lease, but Article 4 (D)(2), immediately preceding,

obligates the tenant to pay “expenses paid . . . by . . . [the] Landlord.” J.A. 334. Thus, one

effect of Article 4 (D)(3) is to require the tenant to pay for some capital improvements

when those capital improvements benefit the tenant by reducing its obligation to cover

landlord expenses. Where the landlord’s proposal is unreasonable, the tenant may refuse.

Plaintiffs have not made any argument how Article 4 (D)(3), specifically, conflicts with

other provisions of the Lease, except that it evinces a general theme that the Lease allocates

most costs to the tenant. As explained above, the Article 8 cost-sharing provision is a

specific and unambiguous exception to any general cost allocations and is therefore not

inconsistent with Article 4 (D)(3).

17 Finally, Plaintiffs point to Article 6 (C) and (L). Article 6 (C) provides:

Tenant shall keep at its own expense (except as otherwise provided hereinbelow) the exterior and interior of the Leased Premises, together with all windows and glass, . . . heating, [and] air conditioning . . . in good order and condition and surrender the same at the Lease Expiration Date in the same good order in which they are received. . . Landlord agrees that in the event that a repair or replacement (i) is not made necessary in whole or in part as a result of Tenant’s negligence, (ii) is Five Thousand Dollars ($5,000.00) or more in amount, and (iii) has an actual economic life in excess of the term of the Lease then in effect, the Landlord shall be responsible for one-half (1/2) of the cost of such repair or replacement and the Tenant shall be responsible for one-half (1/2) of the cost of such repair or replacement.

J.A. 338.

As with Article 8, Article 6 (C) starts with a general statement about the tenant’s

responsibility for costs, but then contains a cost-sharing provision that is a specific

exception. Article 6 (C) makes the status of the cost-sharing provision as an exception

explicit by stating “except as otherwise provided hereinbelow.” J.A. 338. Thus, Article 6

(C) is not internally inconsistent, nor is it inconsistent with Articles 2, 4, or 8, for the same

reasons that Article 8 is not inconsistent with those Lease sections.

Article 6 (L) addresses alterations to the Premises. It too has general language about

the tenant’s responsibility for “interior repairs, replacements, fixtures, and decorations.”

J.A. 340. Again, such general language is not inconsistent with the Article 8 cost-sharing

provision.

18 As the cost-sharing provisions of the Lease are not ambiguous, we do not consider

parol evidence such as course-of-performance evidence. We also do not resort to the

Estoppel Certificate or the 1998 Letter to resolve an ambiguity, as no ambiguity exists. 7

C.

Having addressed which documents constitute the Lease and whether the Lease is

ambiguous as to cost-sharing, we now turn to structural repairs and HVAC units.

1.

The district court granted Defendant’s motion for summary judgment as to the roof

and other structural repairs. As discussed above, Article 8 governs these items, and Article

8 is unambiguous. A repair must be made during the term of the Lease in order to be

charged to the tenant, and some repairs may fall into the cost-sharing provision exception

which obligates the landlord to split the cost with the tenant. The Landlord has a right to

enter the Premises and make repairs that the Landlord deems necessary, which the landlord

may then charge to the tenant, but the landlord must exercise this right, including actually

making the repairs, in order to pass on the cost for a repair. The Landlord having not made

repairs during the term of the Lease, Defendant is not obligated to pay Plaintiffs’ structural

7 With respect to Plaintiffs’ trade-usage-evidence argument, Plaintiffs contend that the district court erred by not examining “commercial realities,” as evidenced by its failure to cite, among other non-binding authorities, dictionaries. Appellants’ Br. at 47-48. Plaintiffs suggest that if the district court had examined the definition of “net lease,” it would have found the Lease ambiguous. There is no obligation for a district court to cite a dictionary when ruling on a motion for summary judgment—especially where a purportedly disputed term, “net lease,” does not appear in the original Lease. Plaintiffs’ attack on the district court’s citations is without merit. 19 costs, which Plaintiffs first demanded only two months before the Lease expired. We affirm

the district court on this issue.

2.

The district court also granted Defendant’s motion for summary judgment as to the

HVAC units. The issue was the condition of the Premises upon surrender. The district court

found that Article 6 (C) and Article 24 of the Lease both related to surrender. Article 6 (C),

quoted at length above, concerned “heating, air conditioning and other mechanical

equipment” and generally obligated the tenant to surrender them “in the same good order

in which they are received.” J.A. 338. Then, Article 24 obligated the tenant to “return the

[Premises] . . . in as good condition as when Tenant originally took possession, ordinary

wear . . . and damage resulting from the act of Landlord . . . excepted.” J.A. 352. Under

Maryland law, if “one [contract provision] is general in character and the other is specific,

the specific stipulation will take precedence over the general, and control it.” Heist v. E.

Sav. Bank, FSB, 884 A.2d 1224, 1228 (Md. Ct. Spec. App. 2005) (quoting Fed. Ins. Co. v.

Allstate Ins. Co., 341 A.2d 399, 407 (Md. 1975)). The district court ably applied this rule

to the Lease. Article 24 was the more specific provision with respect to the return of the

Premises. Therefore, Defendant was required to return the Premises in the same good order

and original condition in which they were received, except for ordinary wear. The district

court correctly held that the contested HVAC work, specifically replacement of HVAC

units and replacement of original thermostats with programmable thermostats, constituted

“upgrades” not required under the Lease. J.A. 1007.

20 Plaintiffs argue that an ordinary-wear exception does not relieve a tenant of repair

or replacement obligations. The truth of that proposition will depend on lease provisions

in every case. For example, Plaintiffs rely entirely on a case from the Northern District of

Illinois, where the court applied Illinois contract law to a lease with a provision that

obligated the tenant to undertake replacements of disputed items “whether ordinary or

extraordinary.” Schultz Bros. Co. v. Osram Sylvania Prods., Inc., No. 10 C 2995, 2011 WL

4585237, at *2 (N.D. Ill. Sept. 30, 2011). This Lease lacks such an “ordinary or

extraordinary” clause. Moreover, on appeal, Plaintiffs have not presented an argument for

why replacing HVAC equipment with the newest model does not constitute an “upgrade”

outside the scope of the Lease. Accordingly, we affirm the district court as to the HVAC

units.

IV.

Plaintiffs sued to enforce promises that the Defendant never made. For the reasons

above, the district court properly granted summary judgment to the Defendant.

AFFIRMED