Tri-City Associates, L.P. v. Belmont, Inc. , 2016 S.D. 46 ( 2016 )

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2016 S.D. 46IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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TRI-CITY ASSOCIATES, L.P., Plaintiff and Appellant,
v.
BELMONT, INC., a
South Dakota Corporation
and JOSEPH Z. ERBA, Defendants and Appellees.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBERT A. MANDEL
Judge
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MARK F. MARSHALL of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Rapid City, South Dakota Attorneys for plaintiff
and appellant.
STAN H. ANKER
JORDAN D. BORDEWYK of
Anker Law Group, PC
Rapid City, South Dakota Attorneys for defendants
and appellees.
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CONSIDERED ON BRIEFS
ON NOVEMBER 30, 2015
REASSIGNED
FEBRUARY 17, 2016
OPINION FILED 06/01/16
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WILBUR, Justice (on reassignment).
[¶1.] In this second appeal, Tri-City Associates, L.P. argues that the circuit
court erred when it entered a judgment in favor of Belmont, Inc. In Tri-City
Assocs., L.P. v. Belmont, Inc. (Tri-City I), we had reversed and remanded the case
for the circuit court to enter “findings of fact and conclusions of law on the effect of
Belmont’s failure to give notice of breach and an opportunity to cure.” 2014 S.D. 23,
¶ 24, 845 N.W.2d 911, 918. We did so because the circuit court did not address
whether Belmont’s claims were barred for Belmont’s failure to follow the notice-and-
cure provision in the parties’ written lease. We stated that the “court’s failure to
address the notice-and-cure issue is problematic because some courts have
concluded that the failure to abide by a notice-and-cure provision precludes judicial
relief.” Id. ¶ 22. On remand, the circuit court entered supplemental findings of fact
and conclusions of law. It interpreted the notice-and-cure provision to allow for
substantial compliance and found that Belmont substantially complied. It also
found that Tri-City had actual notice of its material breaches and an opportunity to
cure. Alternatively, the court concluded that, by bringing suit against Belmont, Tri-
City repudiated any intention to perform its obligation under the lease and made
futile the requirement that Belmont strictly comply with the notice-and-cure
provision. It entered a judgment in favor of Belmont. Tri-City appeals. We affirm.
Background
[¶2.] Tri-City owned and operated the Northgate Shopping Center in Rapid
City, South Dakota. It entered into a written lease agreement with Belmont in
April 2006 for unfinished commercial space. The unfinished commercial space
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required substantial initial construction work before the lease was to begin on
August 1, 2006. A “work letter” attached to the lease allocated the initial
construction work between Tri-City and Belmont. The lease also contained a
provision that required Belmont to give written notice to Tri-City of any alleged
breach and give Tri-City the opportunity to cure any breach within 30 days. 1 Under
the terms of the lease, Belmont could not avail itself of the remedies available under
the terms of the lease at law or in equity until Tri-City had been afforded the
opportunity to cure.
[¶3.] The parties experienced considerable difficulties in completing the
terms of the lease. Tri-City proposed to move the start date of the lease to January
15, 2007. Belmont did not respond to the requested modification. Ultimately, Tri-
City did not deliver the premises to Belmont on August 1, 2006, in the condition
required under the lease and did not complete its allocated initial construction
work.
1. The provision reads as follows:
Landlord shall be in default under this Lease upon . . . (b) the
failure of Landlord to observe, keep or perform any of the other
terms, covenants, agreements or conditions contained in this
Lease on the part of the Landlord to be observed or performed
and such failure continues for a period of thirty (30) days after
written notice by Tenant to Landlord or, if such failure is not
reasonably susceptible to cure within thirty (30) days, then
within a reasonable period of time so long as Landlord shall
have commenced to cure such failure within such thirty (30) day
period and shall thereafter diligently pursue such care to
completion. Tenant may not exercise any remedies available to
it under this Lease, at law or in equity until Landlord has been
afforded the cure periods described in this Paragraph 48 and
any Lender shall have been given notice and afforded the cure
periods described in Paragraph 30 above.
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[¶4.] After Belmont did not pay rent for the first few months of the lease,
Tri-City served Belmont with a notice of default under the lease. A month later,
Tri-City served Belmont with a notice to quit and vacate and, in April 2007, sued to
evict Belmont. Belmont answered and asserted that Tri-City materially breached
the lease, which Belmont asserted relieved it of its duty to pay rent. Then, in
October 2007, Belmont counterclaimed for damages for Tri-City’s failure to perform
under the terms of the lease. Tri-City responded to Belmont’s counterclaim that
Belmont agreed to accept the premises “as is.” Tri-City also argued that Belmont
failed to provide Tri-City with written notice of Tri-City’s alleged breach and did not
give Tri-City an opportunity to cure as required by the notice-and-cure provision in
the lease.
[¶5.] After a court trial on April 23-24, 2013, the court issued findings of fact
and conclusions of law. It found that Tri-City breached the lease by failing to
complete the required initial construction and deliver the premises in broom clean
condition. To the court, Tri-City’s breach constituted a material breach because Tri-
City’s “failures and delays defeated the very object of the Lease[.]” The court
concluded that Tri-City’s material breaches excused Belmont’s duty to pay rent and
excused Belmont’s “default of the terms and conditions of the Lease[.]” The court
held that “because [Belmont’s] actions are excused,” Tri-City “is not entitled to
damages.” However, the court concluded that Belmont “suffered substantial losses
because of [Tri-City’s] material breach” and awarded Belmont a judgment against
Tri-City in the sum of $89,220.67. The court also awarded Belmont reasonable
attorney’s fees and costs because the terms of the parties’ lease allowed for such an
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award to the prevailing party. The court did not enter any findings of fact or
conclusions of law regarding the effect of lease provision requiring Belmont to give
Tri-City written notice of default. Tri-City appealed to this Court.
[¶6.] On appeal, Tri-City did not dispute that it materially breached the
parties’ lease. It asserted that “Belmont’s defense and counterclaim were barred as
a matter of law by: (1) the lease provision in which Belmont accepted the premises
as is, and (2) Belmont’s failure to give Tri-City notice of its alleged breach and an
opportunity to cure.” Tri-City I, 2014 S.D. 23, ¶ 8, 845 N.W.2d at 914. From our
review of the parties’ agreement, we concluded that “[a] harmonious reading of all
provisions reflects that the as is clause did not abrogate Tri-City’s post-execution
obligations to perform initial construction and to deliver the premises in broom
clean condition.” Id. ¶ 14. We, however, remanded the case because the circuit
court did not address the effect of the notice-and-cure provision on Belmont’s
counterclaim. We directed the court on remand to enter “findings of fact and
conclusions of law on the effect of Belmont’s failure to give notice of breach and an
opportunity to cure.” Id. ¶ 24.
[¶7.] On remand, the circuit court did not take additional evidence. It
issued supplemental findings of fact and conclusions of law. The court ruled that
“[t]he intent of the notice and cure provision of the Lease was to provide a breaching
party with notice that it is in breach of the lease and provide that party with an
opportunity to cure the breach.” The circuit court held that Belmont “substantially
complied with the ‘notice-and-cure’ provisions of the Lease,” that Tri-City “had
actual notice that it was in breach of the Lease,” and that Belmont “provided [Tri-
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City] with an opportunity to cure the breach.” Alternatively, the court concluded
that “[b]y filing suit against [Belmont] for possession of the premises, [Tri-City]
repudiated the Lease and any intention to perform under the Lease.” The court
held that Tri-City’s “repudiation of the lease absolved [Belmont] of any obligation to
provide [Tri-City] notice of breach and opportunity to cure breach as [Tri-City] had
made its intention not to perform under the Lease unequivocal.” The court again
entered a judgment in favor of Belmont for damages, plus interest, attorney’s fees,
and costs.
[¶8.] Tri-City appeals and raises the following issue for our review: Did the
circuit court err as a matter of law by entering a judgment in favor of Belmont?
Standard of Review
[¶9.] We review both the circuit court’s conclusions of law and its
interpretation of the contract de novo. Tri-City I, 2014 S.D. 23, ¶ 9, 845 N.W.2d at
915 (citing Poeppel v. Lester, 2013 S.D. 17, ¶ 16, 827 N.W.2d 580, 584).
Analysis
[¶10.] Tri-City asks this Court “to view the issue on remand within the
appropriate context”—that Tri-City’s default, if any, was not material. Tri-City
then directs this Court to multiple failings and defaults by Belmont under the terms
of the lease. Tri-City also claims that the circuit court’s findings “do not identify
with specificity the breach of contract of which Belmont complains.” In Tri-City’s
view, the court’s “failure makes it difficult, if not impossible to determine whether a
breach occurred and if so whether the breach was material.”
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[¶11.] This appeal does not concern whether Tri-City materially breached the
parties’ lease. This is because Tri-City did not appeal the circuit court’s ruling that
Tri-City materially breached the parties’ lease in Tri-City I. The breaches, as we
recognized in Tri-City I, occurred because “Tri-City did not complete its allocated
portion of the initial construction” and did not “deliver the premises in broom clean
condition by August 1, 2006.” Id. ¶ 3.
[¶12.] This appeal concerns whether the circuit court erred when it entered a
judgment in favor of Belmont. On this issue, Tri-City argues that Belmont’s duty to
provide written notice of the alleged breach is a condition precedent to Belmont’s
counterclaim. Tri-City avers that the plain language of the parties’ lease requires
written notice and an opportunity to cure and “[n]either this Court nor the circuit
court has the power to rewrite the parties’ Lease.”
[¶13.] It is undisputed that Belmont did not give Tri-City written notice of
Tri-City’s default. But the parties did not hinge Belmont’s right to exercise its
judicial remedies under the lease on whether Belmont gave Tri-City written notice
of breach. Rather, the lease restricted Belmont’s right to recover on whether Tri-
City had been afforded the cure periods described in the lease. The lease provision
provides: “Tenant may not exercise any remedies available to it under this Lease, at
law or in equity until Landlord has been afforded the cure periods described in this
Paragraph 48[.]” The cure period is 30 days. And, here, it is undisputed that
Belmont did not attempt to exercise its legal remedies until months after Tri-City
repudiated the lease by filing its lawsuit against Belmont for possession of the
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premises and damages. At that point, written notice to Tri-City affording Tri-City
an opportunity to cure would have been futile.
[¶14.] This Court recognizes that “[t]he law does not require futile acts.”
Adrian v. McKinnie, 2004 S.D. 84, ¶ 16, 684 N.W.2d 91, 99. Other courts have held
that futility applies in the context of compliance with a notice-and-cure provision.
Giuffre Hyundai, Ltd. v. Hyundai Motor Am., 756 F.3d 204, 209 (2d Cir. 2014);
AAMCO Indus., Inc. v. DeWolf, 250 N.W.2d 835, 840 (Minn. 1977); Duncan v.
Woodlawn Mfg., Ltd., 479 S.W.3d 886, 897 (Tex. App. 2015); Cheung-Loon, LLC v.
Cergon, Inc., 392 S.W.3d 738, 745 (Tex. App. 2012). For example, the Texas Court
of Appeals recognized that repudiation of a lease indicates “the futility of a demand
for performance” of the notice-and-cure provision. Cheung-Loon, 392 S.W.3d at 745.
Indeed, “[w]here the breaching party has abandoned the contract and evidenced a
clear and unequivocal intent not to complete the contract, a cure notice is not
required.” 5 Bruner & O’Connor Construction Law § 18:15.
[¶15.] Here, Tri-City’s suit against Belmont for possession of the premises
and damages indicates that it would be meaningless to require Belmont to provide
Tri-City written notice affording the cure period. Tri-City repudiated any intention
to perform under the lease, excusing the requirement that Belmont strictly comply
with the notice-and-cure provision. The circuit court did not err when it entered
judgment in favor of Belmont.
[¶16.] Both parties move for appellate attorney’s fees under SDCL 15-26A-
87.3. Their motions are accompanied by separate verified, itemized statements of
legal services rendered. Belmont seeks $8,286.35 in attorney’s fees, sales tax, and
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costs. Tri-City seeks $7,452.70 in attorney’s fees, sales tax, and costs. The parties
do not dispute that the prevailing party is entitled to recover reasonable attorney’s
fees and costs under the terms of the lease. The specific provision provides that “the
prevailing party in such action or proceeding shall be entitled to recover the
reasonable fees of its attorneys and other costs of suit and its costs and attorney’s
fees in collecting any judgment or award,” if “any action or proceeding is brought by
any party to enforce or interpret the provisions of this Lease, or if any other action
or proceeding is brought arising out of or relating to this Lease[.]” Because Belmont
is the prevailing party, we award its requested fees.
[¶17.] Affirmed.
[¶18.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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