Monsanto Company v. ARE-108 Alexander Road, LLC , 632 F. App'x 733 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1737
MONSANTO COMPANY,
Plaintiff - Appellee,
v.
ARE-108 ALEXANDER ROAD, LLC,
Defendant - Appellant.
No. 14-1776
MONSANTO COMPANY,
Plaintiff - Appellant,
v.
ARE-108 ALEXANDER ROAD, LLC,
Defendant - Appellee.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:10-cv-00898-WO-LPA)
Argued: September 15, 2015 Decided: November 25, 2015
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Mark Everett McKeen, PAUL HASTINGS LLP, San Francisco,
California, for Appellant/Cross-Appellee. Jonathan Michael
Watkins, MOORE & VAN ALLEN PLLC, Charlotte, North Carolina, for
Appellee/Cross-Appellant. ON BRIEF: Joseph H. Stallings,
HOWARD, STALLINGS, FROM & HUTSON, P.A., Raleigh, North Carolina,
for Appellant/Cross-Appellee. Scott M. Tyler, MOORE & VAN ALLEN
PLLC, Charlotte, North Carolina, for Appellee/Cross Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This case arises out of a commercial lease dispute between
landlord ARE-108 Alexander Road, LLC (ARE-108) and tenant
Monsanto Company (Monsanto). The first issue on appeal is
whether the disputed lease provisions pertaining to Monsanto's
obligation to pay rent are unambiguous. We find that the lease
provisions are unambiguous and the district court properly
granted summary judgment in favor of Monsanto. The second issue
is whether North Carolina General Statutes § 6-21.2 authorizes
Monsanto to recover attorneys’ fees. We find that it does not,
and therefore affirm the district court’s judgment on this issue
as well.
I.
ARE-108 and Monsanto became parties to a lease for
commercial property located in Research Triangle Park, North
Carolina after Monsanto assumed the lease from the prior tenant
in March 2005. 1 The original lease term ran from November 1,
2000 to October 31, 2010. During this time, the tenant owed
monthly Base Rent of $26,250, adjusted annually. Section 41 of
the lease gave the tenant the right to extend the lease by two
1 This lease is titled the “Phase 1B” lease. Monsanto and
ARE-108 are also parties to two other leases for properties in
Research Triangle Park; neither, however, is in dispute here.
3
five-year periods, during which no Base Rent would be payable.
Section 41 states:
Extension Rights. Tenant shall have 2 consecutive
rights . . . to extend the term of this Lease for 5
years each (each, a “Term Extension”) on the same
terms and conditions as this Lease . . . . During any
Term Extension, no Base Rent . . . shall be payable;
all other Rent shall remain payable . . . .
J.A. 256. Together, the two Term Extensions spanned November 1,
2010 to October 31, 2020.
The lease contained an attorneys’ fees clause stating that
the prevailing party in a lease dispute would be entitled to
recover “all reasonable fees and costs.” J.A. 260.
In May 2005, shortly after Monsanto assumed the lease,
Monsanto and ARE-108 executed the “First Amendment to Lease”
(First Amendment), which amended various provisions of the lease
but explicitly retained Monsanto’s extension rights under
Section 41:
Except as expressly amended and modified hereby, all
of the terms and provisions of the Lease shall remain
unchanged and in full force and effect . . . . In
addition, Landlord hereby confirms and agrees that
Tenant shall have all of the Extension Rights under
Section 41 of the Lease and that the Extension Rights
are in full force and effect.
J.A. 319.
Approximately two years later, in November 2007, the
parties executed a “Second Amendment to Lease” (Second
Amendment) to “among other things, provide for additional
4
options to extend the Term . . . of the Lease.” J.A. 329. The
Second Amendment gave Monsanto the right to further extend the
lease after it had exercised both Term Extensions:
Additional Right to Extend Term. Following the
exercise by Tenant of both of its existing 5-year
extension options under Section 41 of the Lease . . .
Tenant shall have 2 consecutive rights . . . to extend
the Term of this Lease, consisting of 1 right to
extend the Term of this Lease for a period of 10
years, and 1 final right to thereafter further extend
the Term of this Lease for a period that expires on
November 30, 2034 (each, an “Additional Extension
Term”) on the same terms and conditions as this Lease
(other than Base Rent) . . . .
Id. Together, the two Additional Extension Terms spanned
November 1, 2020 to November 30, 2034.
During the Additional Extension Terms, Base Rent was to be
determined by the “Market Rate,” as follows:
Upon the commencement of any Additional Extension
Term, Base Rent shall be payable at the Market Rate
(as defined below). Base Rent shall thereafter be
adjusted . . . annual[ly] . . . by a percentage . . .
. As used herein, “Market Rate” shall mean the then
market rental rate as determined by Landlord and
agreed to by Tenant, which shall in no event be less
than the Base Rent payable as of the date immediately
preceding the commencement of such Additional
Extension Term increased by 103% multiplied by such
Base Rent.
Id.
Thus, Base Rent at the beginning of each Additional
Extension Term would be set at the Market Rate agreed to by the
parties, which could be no less than 103% of the Base Rent
payable immediately prior. Thereafter, Base Rent would increase
5
annually by a fixed percentage for the remainder of the
Additional Extension Term. If the parties could not agree on
the Market Rate, the matter would be submitted for arbitration.
Finally, the Second Amendment explained the relationship
between its provisions and those of the original lease, stating:
Except as amended and/or modified by this Second
Amendment, the Lease is hereby ratified and confirmed
. . . . In the event of any conflict between . . .
this Second Amendment and . . . the Lease, the . . .
Second Amendment shall prevail. Whether or not
specifically amended by this Second Amendment, all of
the terms and provisions of the Lease are hereby
amended to the extent necessary to give effect to the
purpose and intent of the Second Amendment.
J.A. 333.
In October 2009, Monsanto notified ARE-108 that it was
exercising its right to the first Term Extension. ARE-108 sent
Monsanto a Base Rent schedule for that Term Extension, to which
Monsanto responded that it had no obligation to pay Base Rent
pursuant to the lease. In November 2010, after the first Term
Extension had commenced, ARE-108 declared Monsanto in default
and threatened legal action. Monsanto responded by letter dated
November 17, 2010 that it would pay the requested Base Rent
“under protest,” but reserved the right to be refunded and
further reserved “all rights . . . under the Lease and
applicable law to recover . . . attorneys’ fees and costs.”
J.A. 44.
6
Monsanto then filed the instant suit seeking a declaration
that it owed no Base Rent during the Term Extensions, the return
of all Base Rent paid to ARE-108 under protest, and attorneys’
fees. Shortly after ARE-108 served its first request for
documents, Monsanto moved for summary judgment. ARE-108 opposed
Monsanto’s motion, arguing that the lease was ambiguous and
ARE-108 should be permitted to obtain discovery regarding its
proper interpretation under Federal Rule of Civil Procedure
56(d).
The district court, adopting the recommendation of the
magistrate judge, found the lease to be unambiguous and granted
Monsanto summary judgment. The district court issued a
declaratory judgment stating that: (a) Monsanto had no
obligation to pay Base Rent during the two Term Extensions; (b)
Monsanto was not in default for failing to pay such Base Rent;
(c) ARE-108 was not entitled to take any adverse action against
Monsanto for failure to pay such Base Rent; and (d) Monsanto was
entitled to the return of all Base Rent, late fees, and interest
paid under protest to ARE-108. The district court awarded as
monetary damages all Base Rent and related charges Monsanto had
paid under protest and prejudgment interest, totaling
$2,023,915.24. However, the district court denied Monsanto’s
request for attorneys’ fees, finding that such fees were not
authorized by North Carolina General Statutes § 6-21.2. ARE-108
7
appeals the district court’s grant of summary judgment.
Monsanto cross-appeals its denial of attorneys’ fees.
II.
We review the district court’s grant of summary judgment de
novo, World-Wide Rights Ltd. P’ship v. Combe Inc., 955 F.2d 242,
245 (4th Cir. 1992), and its denial of a Rule 56(d) request for
discovery for abuse of discretion. 2 McCray v. Md. Dep’t of
Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014).
In matters of contract interpretation, we have explained:
Only an unambiguous writing justifies summary judgment
without resort to extrinsic evidence . . . . The first
step for a court asked to grant summary judgment based
on a contract’s interpretation is, therefore, to
determine whether, as a matter of law, the contract is
ambiguous or unambiguous on its face. If a court
properly determines that the contract is unambiguous
on the dispositive issue, it may then properly
interpret the contract as a matter of law and grant
summary judgment because no interpretive facts are in
genuine issue.
World-Wide Rights Ltd. P’ship, 955 F.2d at 245. If, instead,
the contract is ambiguous, the court may evaluate extrinsic
evidence to determine whether summary judgment is proper. Id.
2Rule 56(d) requires that summary judgment be refused when
the nonmovant “has not had the opportunity to discover
information that is essential to his opposition.” Pisano v.
Strach, 743 F.3d 927, 931 (4th Cir. 2014).
8
Under North Carolina law, “[p]arties can differ as to the
interpretation of language without its being ambiguous.” 3 Walton
v. City of Raleigh, 467 S.E.2d 410, 412 (N.C. 1996). An
ambiguity exists “when either the meaning of words or the effect
of provisions is uncertain or capable of several reasonable
interpretations.” Register v. White, 599 S.E.2d 549, 553 (N.C.
2004). Additionally, “[a] latent ambiguity may arise where the
words of a written agreement are plain, but by reason of
extraneous facts the definite and certain application of those
words is found impracticable.” Miller v. Green, 112 S.E. 417,
418 (N.C. 1922). With these principles in mind, we review the
lease, as amended, to determine whether it is ambiguous as to
Monsanto’s obligation to pay Base Rent during the Term
Extensions.
III.
Section 41 of the lease granted the tenant two Term
Extensions, together spanning 2010-2020, during which “no Base
Rent . . . shall be payable.” J.A. 256. The First Amendment
affirmed that the Section 41 rights were “in full force and
effect” when Monsanto assumed the lease. J.A. 319. ARE-108
3The parties appear to agree that North Carolina law
governs the interpretation and enforcement of the lease and its
amendments.
9
contends, however, that the Second Amendment implicitly revoked
Monsanto’s right to pay no Base Rent during the Term Extensions.
Even assuming arguendo that two sophisticated companies would
implicitly revoke a right worth millions of dollars, the Second
Amendment cannot reasonably be read as doing so.
The Second Amendment granted Monsanto two Additional
Extension Terms, together spanning 2020-2034, and set forth the
applicable terms and conditions. Nothing in the Second
Amendment purported to modify the prior Term Extensions, much
less abolish Monsanto’s right to enjoy the Term Extensions
without paying Base Rent, as provided for in Section 41 of the
lease. Rather, the Second Amendment explicitly confirmed that
the Term Extensions remained governed by Section 41. See, e.g.,
J.A. 329 (“Following the exercise by Tenant of both of its
existing 5-year extension options under Section 41 of the Lease
. . . .”).
We are not persuaded by ARE-108’s arguments to the
contrary. ARE-108 first notes that the Additional Extension
Terms could only be exercised after the Term Extensions and “on
the same terms and conditions as this Lease (other than Base
Rent).” J.A. 329 (emphasis added). ARE-108 argues that “the
specific reference to the existence of Base Rent at the time of
the potential exercise of the Additional Extension Right . . .
clarifies that Base Rent is being paid by Monsanto to ARE-108
10
immediately prior to the exercise of any Additional Extension
Right.” 4 Br. of Appellant/Cross-Appellee 26-27. We reject ARE-
108’s contorted reading. The quoted language simply indicates
that new Base Rent provisions would govern the Additional
Extension Terms, and the paragraph that follows in the Second
Amendment specifies that Base Rent would be determined by the
Market Rate. The quoted language has no effect on the Term
Extensions.
ARE-108 next points to the language stating that the Market
Rate “shall in no event be less than the Base Rent payable as of
the date immediately preceding the commencement of such
Additional Extension Term increased by 103% multiplied by such
Base Rent.” J.A. 329. ARE-108 argues that if no Base Rent were
payable during the Term Extensions, which immediately preceded
the commencement of the Additional Extension Terms, the quoted
language would simply mean that the Market Rate could not be
less than zero. ARE-108 contends that it would be “illogical”
for the parties to use such complicated language if they simply
intended for the Market Rate floor to be zero. Resp. and Reply
Br. of Appellant/Cross-Appellee 14.
4ARE-108 further asserts, without citation to any
particular language in the Second Amendment, that Monsanto was
to continue paying Base Rent at $26,650 per month as adjusted.
11
This analysis, however, accounts only for the first
Additional Extension Term. As discussed above, the Second
Amendment established two Additional Extension Terms, with the
Market Rate to be determined at the start of each. ARE-108
correctly observes that if no Base Rent were payable during the
Term Extensions, the Market Rate floor for the first Additional
Extension Term would be zero. However, the parties would still
have to agree to a Market Rate, which would determine the Base
Rent for the first Additional Extension Term. Thus, when
determining the Market Rate for the second Additional Extension
Term, the Market Rate floor would not be zero, but 103% of the
Base Rent payable at the end of the first Additional Extension
Term. With both Additional Extension Terms properly accounted
for, the 103% language has effect and is not simply a convoluted
way of saying zero.
Furthermore, the fact that the Market Rate floor for the
first Additional Extension Term may be zero does not render the
“meaning” of the Second Amendment’s words or the “effect of
[its] provisions” uncertain. Register, 599 S.E.2d at 553. The
meaning is clear, even if ARE-108 finds it to be unfavorable.
See Gas House, Inc. v. S. Bell Tel. & Tel. Co., 221 S.E.2d 499,
504 (N.C. 1976) (“People should be entitled to contract on their
own terms without the indulgence of paternalism by courts in the
alleviation of one side or another from the effects of a bad
12
bargain.” (quoting 14 Samuel Williston, A Treatise on the Law
of Contracts § 1632 (3d ed. 1961))), overruled in part by State
ex rel. Utils. Comm’n v. S. Bell Tel. & Tel. Co., 299 S.E.2d 763
(N.C. 1983).
Lastly, ARE-108 cites the Second Amendment’s clause stating
that “[i]n the event of any conflict” between the Second
Amendment and the lease, the “Second Amendment shall prevail,”
and “the terms and provisions of the Lease are hereby amended to
the extent necessary to give effect to the purpose and intent of
this Second Amendment.” J.A. 333. This language is of no avail
to ARE-108 as there is no conflict between the Second Amendment
and the Base Rent-free Term Extensions established in the lease,
and no amendment to the lease is necessary to give effect to the
Second Amendment.
Ultimately, the language ARE-108 cites cannot fairly be
read as revoking Monsanto’s clearly established right to Base
Rent-free Term Extensions. Thus, ARE-108 has not shown that the
lease, as amended, is capable of multiple “reasonable
interpretations.” Register, 599 S.E.2d at 553. Nor has ARE-108
identified “extraneous facts” that make the definite application
of the amended lease impracticable. 5 Miller, 112 S.E. at 418.
5
ARE-108 insinuates that the present dispute implicates the
parties’ other, “interrelated” leases for properties in Research
Triangle Park. See, e.g., Br. of Appellant/Cross-Appellee 9-10.
(Continued)
13
In short, ARE-108 has demonstrated no ambiguity, latent or
otherwise, as to whether Monsanto owes Base Rent during the Term
Extensions. Monsanto unambiguously does not.
Because the lease is unambiguous, the district court did
not abuse its discretion in denying ARE-108’s Rule 56(d) request
for discovery, as unambiguous contracts are to be construed
without resort to extrinsic evidence. See World-Wide Rights
Ltd. P’ship, 955 F.2d at 245; see also Piedmont Bank & Trust Co.
v. Stevenson, 339 S.E.2d 49, 52 (N.C. Ct. App. 1986), aff’d, 344
S.E.2d 788 (N.C. 1986) (“When the language of the contract is
clear and unambiguous . . . the court cannot look beyond the
terms of the contract to determine the intentions of the
parties.”) (internal citation omitted). 6
However, ARE-108 never explains how those leases affect the
interpretation of the lease presently in dispute. Thus, those
leases do not provide a basis for finding a latent ambiguity.
ARE-108 also recites the principle that a contract
“encompasses not only its express provisions but also all such
implied provisions as are necessary to effect the intention of
the parties unless express terms prevent such inclusion.” Lane
v. Scarborough, 200 S.E.2d 622, 624 (N.C. 1973). However, we
will not read in a provision requiring Monsanto to pay Base Rent
during the Term Extensions. Such a provision is not necessarily
implied by amended lease and contradicts its express terms.
6
For this reason, we do not consider the extrinsic evidence
submitted by ARE-108. We also do not consider ARE-108’s
argument, raised for the first time on appeal in its reply
brief, that it was denied an opportunity to present a defense of
mutual mistake. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993) (explaining that issues raised for the first time on
(Continued)
14
Accordingly, we affirm the district court’s grant of
summary judgment to Monsanto.
IV.
Monsanto cross-appeals the district court’s denial of its
request for attorneys’ fees under North Carolina General
Statutes § 6-21.2. We review de novo the district court’s
resolution of questions of state law. Food Lion, Inc. v.
Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir. 1999).
The North Carolina Supreme Court has explained that
contractual attorneys’ fees provisions are generally not
enforceable under North Carolina law:
[T]he jurisprudence of North Carolina traditionally
has frowned upon contractual obligations for
attorney’s fees as part of the costs of an action. . .
. Thus the general rule has long obtained that a
successful litigant may not recover attorneys’ fees,
whether as costs or as an item of damages, unless such
a recovery is expressly authorized by statute. Even in
the face of a carefully drafted contractual provision
indemnifying a party for such attorneys’ fees as may
be necessitated by a successful action on the contract
itself, our courts have consistently refused to
sustain such an award absent statutory authority
therefor.
appeal will not be considered absent exceptional circumstances);
Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996)
(explaining that arguments raised for the first time in a reply
brief are not properly before the Court).
15
Stillwell Enters., Inc. v. Interstate Equip. Co., 266 S.E.2d
812, 814-15 (N.C. 1980) (internal citations omitted).
Monsanto claims that § 6-21.2 provides the statutory
authority necessary to enforce the lease’s attorneys’ fees
clause. That statute “allows an award of attorneys’ fees in
actions to enforce obligations owed under an evidence of
indebtedness that itself provides for the payment of attorneys’
fees.” Trull v. Cent. Carolina Bank & Tr., 478 S.E.2d 39, 42
(N.C. Ct. App. 1996)(quotation omitted), aff’d in part, review
dismissed in part, 490 S.E.2d 238 (N.C. 1997). Section 6-21.2
states, in relevant part:
Obligations to pay attorneys’ fees upon any note,
conditional sale contract or other evidence of
indebtedness . . . shall be valid and enforceable, and
collectible as part of such debt, if such note,
contract or other evidence of indebtedness be
collected by or through an attorney at law after
maturity, subject to the following provisions:
. . . .
(2) If such note, conditional sale contract or
other evidence of indebtedness provides for the
payment of reasonable attorneys’ fees by the debtor,
without specifying any specific percentage, such
provision shall be construed to mean fifteen percent
(15%) of the “outstanding balance” owing on said note,
contract or other evidence of indebtedness.
N.C. Gen. Stat. § 6-21.2. The party seeking attorneys’ fees
must provide notice to the debtor, and if the debtor pays the
outstanding balance within “five days from the mailing of such
notice . . . . the obligation to pay the attorneys’ fees shall
be void.” Id. § 6-21.2(5).
16
Monsanto argues that the lease is evidence of ARE-108’s
indebtedness to Monsanto for the Base Rent Monsanto paid under
protest, and that Monsanto is thus entitled to attorneys’ fees
of fifteen percent of the final judgment. We disagree.
As Monsanto notes, § 6-21.2 is a remedial statute that is
“construed liberally to accomplish the purpose of the
Legislature.” Stillwell Enters., Inc., 266 S.E.2d at 817
(quoting Hicks v. Albertson, 200 S.E.2d 40, 42 (N.C. 1972)).
Thus, while it most commonly applies to promissory notes and
conditional sale contracts, the term “evidence of indebtedness”
is broadly defined to include “any printed or written
instrument, signed or otherwise executed by the obligor(s),
which evidences on its face a legally enforceable obligation to
pay money.” Id. at 293-94 (emphasis added). Applying this
definition, the Stillwell court found that a lease of goods was
an “evidence of indebtedness” because the lease “acknowledge[d]
a legally enforceable obligation by plaintiff-lessee to remit
rental payments to defendant-lessor as they become due,” and it
was “executed by the parties obligated under its terms.” Id. at
818. Similarly, a lease of real property may constitute
“evidence of indebtedness.” See, e.g., RC Assocs. v. Regency
Ventures, Inc., 432 S.E.2d 394, 397 (N.C. Ct. App. 1993).
However, even under this liberal definition, the lease here
is not evidence of the indebtedness Monsanto seeks to collect,
17
namely, the Base Rent that it paid under protest. Simply
stated, the lease does not evidence “on its face” ARE-108’s
obligation to return overpaid Base Rent. It therefore cannot be
said that ARE-108 acknowledged such an obligation when it
executed the lease. See Stillwell Enters., Inc., 266 S.E.2d at
817 (“[A]n evidence of indebtedness . . . is a writing which
acknowledges a debt or obligation and which is executed by the
party obligated thereby.”)(emphasis added).
It is not sufficient that ARE-108 may “owe” Monsanto the
return of overpaid rent, or that the overpaid amount may be
referred to as “debt.” Cf. Pantry Pride Enters., Inc. v. Glenlo
Corp., 729 F.2d 963, 965 (4th Cir. 1984). To satisfy § 6-21.2,
the debt must appear “on the face” of the instrument. It is
similarly of no avail that the “pay-under-protest avenue is
implicitly available to tenants under all leases.” Br. of
Appellee/Cross-Appellant 48. Under Stillwell, an “evidence of
indebtedness” may not be based on an implicit debt. Monsanto
cites no authority to the contrary, and we decline to further
extend an already broadly defined statutory term.
Indeed, the interpretation advanced by Monsanto could
significantly expand the scope of § 6-21.2. For example, a
party that breaches a contract typically “owes” damages to the
non-breaching party. Monsanto’s interpretation would suggest
that all contracts are therefore implicitly “evidence of
18
indebtedness” for damages resulting from a breach. We do not
think such an expansive reading is appropriate for a statute
that, at its core, is meant to apply to notes, conditional sale
contracts, and similar debt instruments.
Monsanto further argues that as a matter of policy,
§ 6-21.2 should be construed as authorizing attorneys’ fees here
because, had Monsanto instead refused to pay the disputed rent,
and had ARE-108 filed suit and prevailed, ARE-108 would likely
be entitled to attorneys’ fees under § 6-21.2.
However, § 6-21.2 is not a bilateral statute. It “governs
only attorney’s fees for the creditor’s attorney,” In re Vogler
Realty, Inc., 722 S.E.2d 459, 464 (N.C. 2012), and its purpose
“is to allow the debtor a last chance to pay his outstanding
balance and avoid litigation, not to reward the prevailing party
with the reimbursement of his costs in prosecuting or defending
the action.” Trull, 478 S.E.2d at 42. Thus, § 6-21.2 does not
contemplate equivalent outcomes for both parties.
Moreover, in the hypothetical scenario proposed by
Monsanto, ARE-108 would be entitled to attorneys’ fees because
Monsanto’s obligation to pay rent appears “on the face” of the
lease. However, ARE-108’s obligation to return overpaid rent
does not. In our view, the requirement that the debt appear “on
the face” of the instrument is not merely a technicality, but
serves an important policy purpose. That is, because only the
19
debtor may be liable for attorneys’ fees under § 6-21.2, it is
important that the debt to which the attorneys’ fees attach
appears “on the face” of the instrument executed by the debtor
(as is the case with most debt instruments). Awarding
attorneys’ fees based on an implied debt not appearing “on the
face” of the instrument would eliminate this protection for
debtors. For this reason, granting Monsanto attorneys’ fees
here would not serve the purpose of the statute “just as much”
as granting ARE-108 attorneys’ fees would in the converse
scenario posed by Monsanto. Br. of Appellee/Cross-Appellant 50.
We conclude that, under the facts presented here, the lease
is not an “evidence of indebtedness” under § 6-21.2. 7 Thus, we
affirm the district court’s denial of Monsanto’s request for
attorneys’ fees. 8
7We therefore need not decide whether Monsanto has
satisfied the other requirements of this statute.
8
Our reasoning differs somewhat from the district court’s.
See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir.
1996)(explaining that courts of appeals may “uphold judgments of
district courts on alternate grounds”). Among other things, the
district court found that Monsanto’s claim to recover overpaid
Base Rent arose, not under the lease, but under a “separate
agreement settling, in part, claims that were threatened” by
ARE-108. J.A. 720. The district court found that such separate
agreement contained no attorneys’ fees provision. Id. On
appeal, both parties contend that no such separate agreement
existed, and we agree.
20
V.
For these reasons, we affirm the district court.
AFFIRMED
21