Maysville Marketsquare Associates Ltd. Partnership v. Kroger Co.

241 F. App'x 257
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 10, 2007
Docket06-5007
StatusUnpublished
Cited by1 cases

This text of 241 F. App'x 257 (Maysville Marketsquare Associates Ltd. Partnership v. Kroger Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maysville Marketsquare Associates Ltd. Partnership v. Kroger Co., 241 F. App'x 257 (6th Cir. 2007).

Opinions

ROGERS, Circuit Judge.

This appeal arises from a dispute between Marketsquare Associates Limited Partnership, the landlord of a shopping center, and The Kroger Company, a tenant in that shopping center. The parties dispute the interpretation of a provision in their 1993 lease agreement, which provided that Kroger would reimburse Maysville as landlord for a portion of the costs of operating the “Common Areas” of the shopping center. The same section excludes at least some salaries from the costs which may be charged to the tenant. Because this section of the lease is ambiguous, we affirm the district court’s denial of summary judgment to Maysville, but reverse the grant of summary judgment to Kroger.

Maysville and Kroger entered into a lease agreement on April 20, 1993, in which Kroger leased space in the Mays-ville Marketsquare Shopping Center from [258]*258Maysville. One term of the lease required Kroger to pay Maysville “a pro rata share of the Landlord’s operating cost of the Common Areas.” In August 2004, Mays-ville filed this suit in Kentucky circuit court, alleging, among other things, that Kroger underpaid various Common Area Maintenance (“CAM”) charges for 2004. Kroger obtained removal of the suit to federal court on grounds of diversity jurisdiction and counterclaimed for overpayment of CAM charges in 2003.1

Before the matter was brought before the magistrate judge for summary judgment, the parties by joint stipulation agreed that “[t]he only issue that remains in dispute is in regard to Maysville Marketsquare’s inclusion of the salaries of Clarence Botkin, the Maysville Shopping Center onsite manager, and the salaries of Mr. Botkin’s assistants, in CAM charges.”

The lease agreement defined the parties to the lease agreement as “Maysville Marketsquare Associates, Limited Partnership, a Kentucky Limited Partnership, (‘Landlord’) and The Kroger Co., an Ohio corporation, (‘Tenant’).” JA 97. The relevant section of the contract provided as follows:

B. COMMON AREA MAINTENANCE REIMBURSEMENT. Commencing on the date upon which Rentals become due hereunder Tenant, shall pay Tenant’s pro rata share of Landlord’s operating cost of the Common Areas, as hereinafter defined, in the manner hereinafter provided ... Tenant in no event shall be responsible for any portion of Landlord’s costs associated with or related to (i) office overhead, salaries, depreciation and administrative costs, (ii) replacements of capital items, (iii) individual expenditures in excess of $25,000 which typically would be capitalized as opposed to expensed.
For the purposes of this Paragraph 22B, “Landlord’s Operating Cost of the Common Areas” is defined as including all of Landlord’s costs and expenses of operating and maintaining the Common Areas in the Shopping Center, and shall be deemed to include, but not be limited to, landscaping, snow removal, cleaning, utilities (but not electric), fire protection, security, traffic control signs, patching not in excess of $5,000 per year, restriping, policing, Common Area trash removal, sewage disposal, and an administrative fee equal to three percent (3%) of the Landlord’s Operating Cost of the Common Areas.

JA 114-115 (emphasis added).

Maysville alleges that from 1993 until 2004, Kroger paid its pro rata share of the billed CAM expenses, including an amount that corresponded to a pro rata share of the salaries of Clarence Botkin and his assistants. Kroger denies that it ever knowingly paid any part of the salaries. During that entire period daily common area maintenance (consisting of cleaning the parking lot and sidewalks, shoveling snow from the parking lot and sidewalks, and caring for the grounds) was performed by Botkin and his assistants. From 1993 until 2002, Botkin was employed by Pan Pacific Retail Properties, Inc. (Pan Pacif[259]*259ic). Pan Pacific owned Maysville Market as general partner, managed the payment of common area expenses for the shopping center, and billed the tenants for reimbursement of CAM expenses. In 2002, Pan Pacific formed a separate shopping center maintenance company, West Coast Property Maintenance, LLC, and Botkin and his assistant were employed by West Coast during the period relevant to the claims presented in this case. West Coast billed the salaries at issue to Pan Pacific as “Labor Services @ Maysville.” Pan Pacific then included the amount of those payments in the CAM charges it billed to Kroger under the lease.

Both parties moved for summary judgment and consented to disposition of their motions, and a bench trial if necessary, by the magistrate judge pursuant to 28 U.S.C. § 636(c). Kroger sought reimbursement of $58,136.94 in overpayment of CAM charges for 2003 and 2004 if it is not responsible for the portion of CAM charges that was paid as salary to Botkin and his assistant. Maysville sought an additional $4,801.81 in unpaid CAM charges for the labor services provided by Botkin and his assistant. The district court denied Maysville’s motion, granted summary judgment to Kroger, and entered judgment for Kroger in the amount of $58,136.94. Maysville filed this timely appeal.

This court reviews an order granting summary judgment de novo. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir.2005). An order denying summary judgment is reviewed for abuse of discretion, except when the denial is based on purely legal grounds, as appears to the case here; in that case, review of the denial is de novo. McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir.2004). Summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A federal court exercising its diversity jurisdiction applies the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Kroger was not entitled to summary judgment because the language upon which Kroger relies is ambiguous and genuine issues of material fact exist with respect to the extrinsic evidence bearing upon the proper construction of the salaries provision. Contrary to Kroger’s assertion, the lease is ambiguous with respect to whether or not a portion of the salaries paid to workers who provide CAM services may be charged to Kroger as the tenant.

Kroger argued, and the district court held, that the language in the salaries clause was not ambiguous and, therefore extrinsic evidence was not to be considered on this issue. See Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32

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Bluebook (online)
241 F. App'x 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maysville-marketsquare-associates-ltd-partnership-v-kroger-co-ca6-2007.