Route Triple Seven Ltd. Partnership v. Total Hockey, Inc.

127 F. Supp. 3d 607, 2015 U.S. Dist. LEXIS 115664, 2015 WL 5123302
CourtDistrict Court, E.D. Virginia
DecidedAugust 28, 2015
DocketNo. 1:14-cv-30
StatusPublished
Cited by25 cases

This text of 127 F. Supp. 3d 607 (Route Triple Seven Ltd. Partnership v. Total Hockey, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Route Triple Seven Ltd. Partnership v. Total Hockey, Inc., 127 F. Supp. 3d 607, 2015 U.S. Dist. LEXIS 115664, 2015 WL 5123302 (E.D. Va. 2015).

Opinion

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

At issue post-judgment and appeal in this landlord-tenant case is the tenant’s claim for attorney’s fees pursuant to a lease provision that granted attorney’s fees to the “substantially prevailing party” in any suit brought to enforce the lease. The landlord plaintiff brought such a suit, which, in the end, was resolved by the entry of summary judgment in favor of the defendant tenant on all of the landlord’s claims and in favor of the landlord on the tenant’s single counterclaim. The landlord’s appeal failed as the Court of Appeals for the Fourth Circuit affirmed the grant of summary judgment by unpublished opinion. Route Triple Seven Limited P’ship v. Total Hockey, Inc., 607 Fed.Appx. 299 (4th Cir.2015) (unpublished). Now at bar is the tenant’s fee claim, which the landlord disputes, raising the following questions:

(1) whether the tenant’s fee claim is (i) barred by Rule 9(g), Fed.R.Civ.P., or (ii) permitted by Rule 54(c), Fed. R.Civ.P., where, as here, the tenant did not specifically request attorney’s fees in its answer and counterclaim but merely relies on the contractual provision granting attorney’s fees to a “substantially prevailing party;”
(2) whether the tenant is a “substantially prevailing party” -within the meaning of the lease where, as here, the tenant prevailed on all of the landlord’s claims, but not on the tenant’s single counterclaim;
(3) whether the lease provision limiting the tenant’s remedies to termination of the lease' bars the tenant from recovering attorney’s fees; and
(4) assuming the tenant is entitled to an award of reasonable attorney’s fees, whether the fees claimed are reasonable in the circumstances.

As the parties have fully briefed and argued these questions, this fee dispute is now ripe for disposition.

I.

The facts pertinent to the fee dispute may be succinctly summarized.1 The landlord plaintiff is Route Triple Seven Limited Partnership, a Virginia limited partnership composed of eight partners, three of whom are Virginia attorneys. The tenant defendant is Total Hockey, Inc., a Missouri corporation engaged in the business of selling hockey equipment.

[611]*611On February 26, 2013, defendant entered into a lease (“Lease”) with plaintiff for commercial property located in Lou-doun County “[f]or the operation of a typical Tenant store selling hockey and/or lacrosse equipment, jerseys and other related merchandise” and “for no other use or purpose whatsoever.” Lease § 201(c). The Lease provided for a ten-year initial term with options for renewals thereafter. The Lease further provided that, for the first five years, the minimum rent would be $20 per square foot of the premises with certain additional rent payments specified in the Lease. A rent deposit of one month’s minimum rent and tenant’s pro rata share of additional rent was also required. Additionally, the Lease required defendant (1) to be qualified to do business in Virginia at the time of the Lease execution and (2) to deliver to plaintiff plans and specifications showing in reasonable detail any alterations that defendant proposed to make to the premises within 30 days of the Lease execution. The Lease also stated that the “Anticipated Delivery Date” of the premises was June 1, 2013. Lease § 201(e). In the event the Premises were not delivered within 15 days of June 1, 2013, defendant, as its sole remedy, was allowed to (i) open for business by September 1, 2013, and pay all minimum rent and all additional rent; (ii) open for business after September 1, 2013, pay only minimum rent through January 2014, and pay minimum rent and additional rent beginning on February 1, 2014; or (in) open for business on February 1, 2014, and pay both minimum and additional rent.

At the time the Lease was executed, the defendant was not qualified to do business in Virginia. Shortly thereafter, plaintiff advised defendant of this shortcoming, and defendant then promptly applied for and obtained a Certificate to transact business in Virginia. Defendant had also failed to pay the requisite rent deposit at the time of the Lease execution, but promptly paid this rent deposit within 30 days of the Lease execution. Additionally, defendant sent plaintiff plans and specifications within 30 days of the Lease execution as was required, but it did not send ductwork plans until nearly two months after the Lease execution. Notably, plaintiff did not seek to terminate the Lease on any of these grounds.

Plaintiff failed to deliver the premises to defendant within fifteen days of June 1, 2013, as the Lease required. As a result, defendant, in accordance with the Lease, elected to open for business after September 1, 2013, and to pay only minimum rent through January 2014, but to begin paying minimum rent and the additional rent payments beginning in February 2014.

On January 13, 2014, plaintiff filed the instant action, alleging three breaches of the Lease:

(1) that defendant was not qualified to do business in Virginia at the time the Lease was executed;
(2) that defendant did not submit a rent deposit upon the Lease execution; and
(3) that defendant did not deliver plans and specifications showing in reasonable detail any proposed alterations to the premises within 30 days of the Lease execution.

Plaintiffs complaint further alleged that defendant’s exercise of the Lease remedy in response to plaintiffs failure to deliver the premises on time violated Virginia public policy.

On February 11, 2014, defendant filed an answer denying that any material breach occurred and a counterclaim further alleging that plaintiff failed to provide defendant with an Improvement Allowance as required by the Lease. Thereafter, on August 8, 2014, defendant moved for summary judgment on all of plaintiffs claims. [612]*612That same day, plaintiff filed a cross motion seeking summary judgment on its breach-of-contract claims and also a motion seeking summary judgment on defendant’s counterclaim. Following full briefing and oral argument, an Order issued on September 5, 2014, (i) granting defendant’s motion for summary judgment on all of plaintiffs claims; (ii) denying plaintiffs cross-motion for summary judgment on plaintiffs claims; and (iii) granting plaintiffs motion for summary judgment on defendant’s single counterclaim.

Plaintiffs first two breach-of-contract claims — (i) defendant’s failure to obtain a certificate of authority to transact business in Virginia and (ii) defendant’s brief delay in paying the rent deposit — were not material because defendant promptly cured the breaches. And with respect to the third alleged breach-of-contract claim, no breach in fact occurred because the defendant timely delivered to defendant the requisite plans and specifications. Defendant was also awarded summary judgment on plaintiffs claim that defendant’s exercise of its remedies under the Lease violated Virginia public policy, given that (i) the parties were sophisticated, (ii) plaintiff drafted the lease and hence the remedies clause, and (iii) the remedies clause in no way violated any Virginia public policy. In sum, defendant was granted summary judgment on all of plaintiffs claims and plaintiffs cross-motion for summary judgment on its claims was denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
127 F. Supp. 3d 607, 2015 U.S. Dist. LEXIS 115664, 2015 WL 5123302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/route-triple-seven-ltd-partnership-v-total-hockey-inc-vaed-2015.