Twenty-Nine Street Corridor, LLC v. Taj Corporation ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Fulton
UNPUBLISHED
Argued by videoconference
TWENTY-THIRD STREET CORRIDOR, LLC
MEMORANDUM OPINION* BY
v. Record No. 1305-22-4 JUDGE MARY BENNETT MALVEAUX
AUGUST 8, 2023
TAJ CORPORATION, ET AL.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, II, Judge
Mark P. Friedlander, Jr. (Friedlander & Friedlander, PC, on briefs),
for appellant.
Patrick J. McDonald (Cameron/McEvoy, PLLC, on brief), for
appellees.
Twenty-Third Street Corridor, LLC (“Twenty-Third Street”) appeals from an order of the
circuit court dismissing its counterclaim against Taj Corporation and Shahjahan Mia
(collectively, “Mia”). Twenty-Third Street argues that the court erred in finding that the parties
agreed to amend their lease as represented by Mia and that Twenty-Third Street failed to carry its
burden of proving Mia owed unpaid rent. For the following reasons, we affirm.
I. BACKGROUND
“When reviewing a circuit court’s decision on appeal, we view the evidence in the light
most favorable to the party who prevailed below . . . and grant them the benefit of any reasonable
inferences” that flow from the evidence. Lively v. Smith, 72 Va. App. 429, 432 (2020).
*
This opinion is not designated for publication. See Code § 17.1-413(A).
Twenty-Third Street and Mia1 entered into a written deed of lease for an Arlington
County commercial property on June 17, 2013. Mia operated a restaurant in the leased premises.
The lease contained no express provision concerning modification of its terms.
Following a dispute about rent, Twenty-Third Street evicted Mia in July 2021. Mia filed
a complaint, and, later, an amended complaint, alleging breach of contract and wrongful eviction
and interference with contract and business expectancy. Mia also sought damages from
Twenty-Third Street. Twenty-Third Street filed an answer and counterclaim, later amended,
asserting that Mia had breached the lease by failing to pay rent. The company further alleged
that Mia owed $72,878 in unpaid rent and late fees.
A. Mia’s Evidence at Trial
Mia testified that prior to the COVID-19 pandemic, he did a “very reasonable business.”
He was in regular contact with Twenty-Third Street’s representative, Stratis Voutsas
(“Voutsas”), and the relationship between the two men was “good.” Mia and Voutsas frequently
talked by phone or in meetings at the restaurant.
In March 2020, Mia called Voutsas about his rent and told him it was “very hard to keep
open the restaurant” because of the pandemic. Voutsas told Mia he would “take care of your
rent” by “giv[ing] you three months at least. Then I will work with you the rest of COVID
getting back to the actual rent.” Voutsas later testified that in June 2020, Twenty-Third Street
provided its tenants with a “COVID-19 Rent Abatement Letter” informing them that the
company would completely abate rents for the month of April 2020. However, Mia testified that
he never received the letter. Instead, when asked whether his April 2020 rent had been abated,
Mia reiterated that when he had problems keeping the restaurant open in 2020, Voutsas told him,
“I will take care of that.” Mia stated that Voutsas ultimately “g[a]ve April, May, June, three
1
Mia testified that he was the owner of Taj Corporation.
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months, free rent. That’s the reason I kept the restaurant open.” However, Mia later fell behind
in the rent, beginning in December 2020 and continuing through March 2021.
On March 17, 2021, Mia and Voutsas met at the restaurant to discuss rent. Mia testified
Voutsas told him that if he paid $16,000, Voutsas would “clean up everything.” Mia would then
pay rent of $4,000 per month for April and May 2021, after which, Voutsas said, “you have to
come to full rent.” Mia understood this to mean that $16,000 would pay off his rent arrears and
that going forward, his balance owed would be “[z]ero.”
Alford Sibil, a server in Mia’s restaurant, testified that he was present during the meeting.
The restaurant was closed at that hour, and Sibil was sitting on a couch “very close” to where
Voutsas and Mia were sitting. Sibil heard the men discussing rent, and stated that Voutsas told
Mia, “if you pay me [$]16,000” there would be “a zero balance.” Mia asked Sibil to bring a soda
for Voutsas, and when Sibil returned, Mia was writing a check that he then gave to Voutsas.
Sibil stated that he heard the conversation between Mia and Voutsas “very clearly” and denied
that the two men argued. He also denied hearing any demand by Voutsas that Mia make a
$20,000 payment toward rent or any discussion that Mia owed $40,000 in rent.
Mia introduced into evidence Exhibit 11, a photocopy of a $16,000 check drawn on an
account of Taj Corporation. Signed by Mia and dated March 18, 2021, the check indicated in its
subject line that it was for “rent payment Dec rent 20/Jan Feb March 2021.” Below the check’s
image on the photocopy appeared a handwritten notation stating, “3/17/2021 Received
[r]eduction [t]owards [r]ent,” followed by a signature. Immediately below was another notation
stating, “[a]greed to pay 4000 in April and May as reduction in rent,” followed by the same
signature. Voutsas acknowledged that it was his signature that appeared below each of the
handwritten notations and that he signed the photocopy at the March 17, 2021 meeting.
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In addition to the $16,000, Mia testified that he paid Twenty-Third Street $4,000 rent in
both April and May 2021 and that he resumed payment of full rent in June 2021. He also
introduced into evidence a copy of his check for full rent for July 2021.
Sometime after the meeting, Twenty-Third Street provided Mia with a document, entitled
“Customer Balance Detail,” that indicated that as of March 18, 2021, Mia’s rent was in arrears in
the amount of $27,567.83. Then, in July 2021, Voutsas delivered a “5-Day Notice to Cure”
letter to the restaurant. The letter stated that Mia was in arrears on rent and that through July 9,
2021, he owed $72,878 in rent and fees. Attached to the letter was a fifteen-page “Tenant
Statement” detailing Mia’s rent payments from 2013 through July 2021. The statement reflected
that Mia’s check in the amount of $16,000 had been credited on March 18, 2021. It further
reflected that in both April and May 2021, Mia made rent payments of $4,000 and that he had
resumed paying full rent in June 2021. However, the statement also included a June 2021
notation indicating that Mia owed $20,673.21 for a “Probation Credit Reversal for not bringing
account current on May 31, 2021 per notice.” Mia testified that he was never notified that any
rent credits he had received were “probationary.” He also stated that prior to receiving the cure
letter, he had never received any notice of default.
After receiving the letter, Mia called Voutsas and asked him why he was being asked to
pay over $72,000 when “you told me if I pay [$]16,000 we are even.” He also challenged the
$72,878 figure, noting that the “Customer Balance Detail” had only represented arrears
amounting to about $27,500. Mia stated that while questioning Voutsas’ figures, he wrote
“balance here” next to the $27,567.83 “Total Due” on the “Customer Balance Detail.” Mia said
that in response to his questions, Voutsas assured him that “I will fix it up. . . . So you will
continue to pay what I say, just listen to that.” He also told Mia that with respect to the
$27,567.83, “you don’t owe it.”
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Regardless, Voutsas changed the locks on the restaurant during the night of July 21,
2021. Mia denied that he owed any amount of money to Twenty-Third Street as of July 14,
2021, the date of the notice to cure letter.
B. Twenty-Third Street’s Evidence at Trial
Voutsas testified that he was Twenty-Third Street’s co-manager and that during the
meeting on March 17, 2021, he told Mia he owed $43,000 and “need[ed] . . . to pay some of
this.” He then asked Mia, “[c]an you give me at least $20,000.” Voutsas acknowledged
receiving Mia’s check for $16,000 and said he told Mia that the check would be credited
“towards his rent balance.”
Voutsas introduced into evidence Exhibit D, his own photocopy of Mia’s check, which
included a different handwritten notation than those on Exhibit 11. The notation was unsigned
and stated that “Mia paid towards rent will pay 4000 in April May and then pay balance.”
Exhibit D also included a photocopy of the check’s reverse side, which displayed the initials
“MV” and a handwritten notation indicating that the check had been “received with reservation
of rights.” Voutsas insisted that he “never discounted [the] rent,” that after paying $16,000 Mia
“had to pay the balance,” and that he discussed this with Mia “very clearly.” Voutsas also
introduced into evidence copies of Mia’s bank records, which reflected that in both April and
May, 2021, Mia paid Twenty-Third Street $4,000 and that in June 2021 he paid the company full
rent.
During cross-examination, Voutsas denied that he and Mia had engaged in informal
modifications of the lease over time. Voutsas described sending Twenty-Third Street’s tenants a
COVID-19 “Rent Abatement Letter” in June 2020 and stated that he “gave everybody a
one-month discount in April [2020], and two-thirds of the rent for . . . July, August, and
September [2020].” When asked about Mia’s testimony that during their March 17, 2021
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meeting the two men “had a conversation and agreed to a rent payment,” Voutsas responded that
he “had no such conversation” and that Mia’s testimony was “all false” and he had “sat there and
lied.”
Counsel for Mia also asked Voutsas about the two different photocopies of Mia’s check
and the different handwritten notations. Voutsas acknowledged that he had signed Mia’s
version, Exhibit 11, during the meeting and that the notation on his own copy, Exhibit D,
indicating Mia would later “pay balance,” had been written “the day of the meeting” but after it.
He specifically denied agreeing that Mia could pay $16,000 in rent arrears and then have a
balance of zero going forward, while acknowledging that Mia had paid $4,000 per month in rent
in both April and May 2021 before resuming payment of full rent in June 2021. Voutsas also
acknowledged that he had never sent Mia a written request for late rent, late fees, or
administrative fees, or a written notice of default between the time the lease started in 2013 and
the July 14, 2021 cure letter.
Voutsas’ daughter, Mary Voutsas (“Mary”), testified that she was Twenty-Third Street’s
bookkeeper and that she maintained the records regarding the collection of rent. Mary stated that
she participated by telephone in the meeting on March 17, 2021, but that she sometimes had a
hard time hearing “exactly everything” that was said. Her recollection was that Mia and Voutsas
differed about the amount of rent due and “seemed to not be listening to each other.” Mary
stated that she had prepared the “Customer Balance Detail” later provided to Mia and that the
$27,567.83 figure represented “what was due as of March 18, 2021, with [Mia] having given the
$16,000 check.” She specifically denied that Voutsas ever stated that if Mia paid $16,000, he
would owe no more in back rent. However, she could not recall the “exact number[]” Voutsas
told Mia was the amount of back rent he would have to pay.
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Georgia Papadopolous (“Papadopolous”) testified that she was a co-manager of
Twenty-Third Street and that she also participated by telephone in the meeting on March 17,
2021. She stated that there were arguments during the meeting and that the amount of money
being discussed was “considerable. . . . something like 40, maybe.” However, “[t]he number that
they arrived at, I was so frustrated I think I tuned out at that point.” Ultimately, Papadopolous
understood that Mia “was going to pay something towards what [he] owed,” but not that “[i]f
you pay this amount, you don’t owe anymore.” She did not know how the meeting ended
because she had “hung up” “out of frustration,” although Voutsas “called back and said, we have
agreed to [$]16,000.” Papadopolous specifically denied that the parties had agreed to waive all
rent arrears, but acknowledged during cross-examination that she missed parts of the
conversation that took place after she hung up.
C. Subsequent Events
The court made no rulings from the bench and entered its written final order on July 25,
2022. The court found that the parties had agreed to amend the rent as shown in Exhibit 11 and
that Twenty-Third Street had failed to meet its burden of proving any further rents due and
owing. The court noted that it had considered the witnesses’ testimony and determined the
credibility and weight to be afforded their testimony and that it had “also considered exhibits and
determined the weight afforded to each, along with the remaining portion of the record.” The
court dismissed both Mia’s complaint and Twenty-Third Street’s counterclaim.
On August 2, 2022, Twenty-Third Street filed a motion for reconsideration. It argued
that the circuit court erred in holding that Exhibit 11 was an amendment to the lease that
cancelled all prior rent debt in exchange for $16,000, because the explicit terms of the document
only stated that the $16,000 was for “Rent payment, Dec rent 20/Jan Feb Mar 2021.” Since “[a]s
an amendment, the document must be read as written,” Mia’s $16,000 check “could, at best,
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have been a modification of the unpaid rent for the named four months.” Twenty-Third Street
also argued that even if it had agreed to accept $16,000 as payment in full for Mia’s rent
obligation, that agreement would have been made “in response to a material misrepresentation by
[Mia] that his restaurant was struggling, and that he had no money.” Twenty-Third Street
alleged that Mia had received substantial COVID-19 relief funds from the government and then
“created a false illusion of a struggling business” and that it had “rel[ied] on the falsehood” in
“g[iving] Mr. Mia breaks and latitude to keep him operating.”
Also on August 2, 2022, Twenty-Third Street filed a motion requesting a suspending
order to allow the court to retain jurisdiction for a “possible hearing” on the motion for
reconsideration. The record contains neither a suspending order entered by the court, nor a
request for a hearing on the motion for reconsideration or a ruling on that motion.
This appeal followed.
II. ANALYSIS
A. Amendment of the Lease
Twenty-Third Street argues the circuit court erred in finding that Exhibit 11 was an
“amendment to the [l]ease that satisfied all prior rent in arrears.” Specifically, it contends that
Voutsas denied he had ever agreed to cancel all prior rent obligations in exchange for $16,000
and that both Mary and Papadopolous confirmed that no such agreement had been reached.
Although it acknowledges that the court was entitled to believe Mia and Sibil and not believe its
witnesses, it argues the court could not “ignore” the “written contradictions” of the “Customer
Balance Detail” which demonstrated that after paying $16,000, Mia still owed $27,567.83 in rent
arrears, “which [he] acknowledged by writing ‘BALANCE HERE.’” Twenty-Third Street
further asserts that the court did not have the right to “disregard[]” the notation on the back of the
check in Exhibit D, indicating that it had been “[r]eceived with reservation of rights.”
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“The interpretation of a contract presents a question of law subject to de novo review.”
Reston Surgery Ctr. v. City of Alexandria, 62 Va. App. 549, 559 (2013) (quoting Orthopaedic
and Spine Ctr. v. Muller Martini Mfg. Corp., 61 Va. App. 482, 490 (2013)). Such review
extends to “those situations where there is a mixed question of law and fact.” PMA Cap. Ins. Co.
v. US Airways, Inc., 271 Va. 352, 358 (2006) (quoting Westgate at Williamsburg Condo. Ass’n,
Inc. v. Philip Richardson Co., Inc., 270 Va. 566, 574 (2005)). “Where there are mixed questions
. . . , ‘we give deference to the [circuit] court’s factual findings and view the facts in the light
most favorable to the prevailing party, but we review the [circuit] court’s application of the law
to those facts de novo.’” Davis v. Davis, 298 Va. 157, 167 (2019) (quoting Tuttle v. Webb, 284
Va. 319, 324 (2012)). “[F]actual findings will not be disturbed on appeal unless they are plainly
wrong or without evidence to support them,” Collins v. First Union Nat’l Bank, 272 Va. 744,
749 (2006), and we are cognizant that “[t]he credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the opportunity to see and hear that
evidence as it is presented,” Budnick v. Budnick, 42 Va. App. 823, 834 (2004) (quoting Sandoval
v. Commonwealth, 20 Va. App. 133, 138 (1995)).
“Contracting parties may, of course, modify the terms of their contract by express mutual
agreement.” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 72 (1983). “[M]odification of a
contract must be shown by ‘clear, unequivocal and convincing evidence, direct or implied.’”
Reid v. Boyle, 259 Va. 356, 370 (2000) (quoting Stanley’s Cafeteria, Inc., 226 Va. at 73). “[T]he
burden of persuasion at trial in the circuit court . . . [rests] on the tenants to prove modification
. . . as ‘the party asserting’ it, not on the landlord.” Robert and Bertha Robinson Fam., LLC v.
Allen, 295 Va. 130, 140 (2018) (quoting Stanley’s Cafeteria, Inc., 226 Va. at 73).
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Here, it is undisputed that the parties mutually intended to modify the terms of Mia’s rent
under the lease.2 However, they dispute the precise terms of the modification, with
Twenty-Third Street maintaining that the parties’ intent respecting modification was reflected in
Exhibit D, while Mia argues that the parties’ intent was reflected in Exhibit 11. We reject
Twenty-Third Street’s argument and hold that clear, unequivocal, and convincing evidence
supports that the mutual intent of the parties was reflected by the terms contained in Exhibit 11,
as argued by Mia.
First, the witnesses’ testimony supports Mia’s interpretation of the document contained in
Exhibit 11. Here, the parties’ argument turns on whether the terms “[r]eduction [t]owards [r]ent”
and “reduction in rent” signified, as maintained by Mia, that after Mia paid $16,000, two future
installments of rent at $4,000, and then resumed payment of full rent, he would owe no more in
rent arrears—or whether, as maintained by Twenty-Third Street, those payments were only
temporary reductions in rent and Mia was still required to pay the balance of any arrears. Mia
testified to his understanding that if he paid $16,000 in arrears, plus the next two months of rent
at a reduced rate of $4,000 per month, and then resumed paying rent at the regular rate, Voutsas
would “clean up everything” and Mia would have a “[z]ero” balance going forward. Sibil, who
was also present at the meeting, testified that Voutsas told Mia “if you pay me [$]16,000,” there
would be “a zero balance.” Further, Sibil denied hearing any discussion that Mia owed $40,000
in rent or any demand by Voutsas that Mia make a $20,000 payment toward rent. Voutsas
contradicted this testimony and alleged that Mia’s testimony was “all false.” Mary and
Papadopolous, who stated that they listened to the meeting on the telephone, broadly
2
We note that neither party raised any arguments or objections in the circuit court, or
arguments on appeal, relating to the statute of frauds, the court’s consideration of parol evidence,
or even whether there was a modification of the lease. Rather, the parties confined themselves to
contesting what modification they had agreed to and how that modification had been obtained.
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corroborated Voutsas’ account of the meeting. But Mary acknowledged that at times she was
unable to hear “exactly everything” that was being said, and Papadopolous acknowledged that
she “tuned out” at one point and missed hearing parts of the conversation after she hung up the
phone. The circuit court clearly credited the testimony of Mia and Sibil over the testimony of
Twenty-Third Street’s witnesses, and we will not interfere with that credibility determination.
Second, the evidence of the parties’ conduct supports Mia’s interpretation of the
modification. Voutsas acknowledged that Mia paid $4,000 in rent in both April and May 2021
and that he did not send Mia any notice of default or written request for late rent prior to July
2021. Thus, Voutsas’ own actions demonstrate that the parties engaged in a post-meeting course
of performance that supports Mia’s interpretation of the document contained in Exhibit 11. See
Reid, 259 Va. at 370 (noting that contracting parties may evince their modification of a contract
“by their course of dealing,” so long as the modification is demonstrated by clear, unequivocal,
and convincing evidence).
Third, although Twenty-Third Street asserts that the court “ignore[d]” the “written
contradictions” contained in the “Customer Balance Detail,” the court did no such thing, as its
written final order made clear that it “considered [the] exhibits and determined the weight
afforded to each.” It is well established that a court “speaks through its written orders” and that
“[w]e presume that the written orders accurately reflect what transpired.” Petrosinelli v. People
for Ethical Treatment of Animals, Inc., 273 Va. 700, 709 (2007). Additionally, Mia provided
credible testimony that in writing “balance here” next to a figure of $27,563.83, he was not
acknowledging he owed that amount in rent arrears; rather, he made that notation while
questioning Voutsas why he was being asked to pay additional sums after Voutsas had
previously told him if he paid $16,000, “we are even.” Further, Twenty-Third Street’s own
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evidence that $27,563.83 was owed in rent arrears was contradicted by its additional evidence, in
the “Tenant Statement,” indicating that Mia owed substantially more in rent arrears and fees.
Lastly, we conclude that the court did not err in determining not to credit the notation
about “reservation of rights” written on the back of Mia’s check and depicted in Exhibit D.
Voutsas acknowledged on cross-examination that he signed the document contained in Exhibit
11 during the meeting with Mia, while the document contained in Exhibit D was prepared “the
day of the meeting” but after the meeting. The notation indicating Twenty-Third Street’s
“reservation of rights” also appears beneath the initials “MV,” and a reasonable inference
supports that these are the initials of Mary Voutsas, who was not physically present for the
meeting about rent and therefore could not have made the notation at the time the parties agreed
to modify rent. Thus, the document contained in Exhibit 11, and not the document contained in
Exhibit D, was contemporaneous with the parties’ agreement at the meeting. Accordingly,
Twenty-Third Street’s contention that the circuit court should have relied upon the document
contained in Exhibit D, rather than the document contained in Exhibit 11, is without merit.
Considering the evidence in its totality, we conclude the document contained in Exhibit
11 reflected the parties’ agreement to modify rent as argued by Mia. Consequently, we find no
error by the circuit court in ruling that the parties agreed to amend rent as shown in Exhibit 11.3
3
Twenty-Third Street advances two other arguments with respect to this assignment of
error. First, it contends that the court erred in declaring that Exhibit 11 “provid[ed] accord and
satisfaction rental relief.” However, as Twenty-Third Street correctly acknowledges on brief,
“[t]he [c]ourt . . . did not rule an accord and satisfaction, but rather made a finding of a lease
amendment.” Consequently, as the court made no ruling on the issue of accord and satisfaction,
there is nothing for us to review with respect to this argument. See Rule 5A:18; Da’mes v.
Da’mes, 74 Va. App. 138, 151 (2022) (holding that where there was no ruling on a matter in the
circuit court, Rule 5A:18 precludes this Court from considering the matter on appeal).
Additionally, we note that accord and satisfaction is an affirmative defense and that it was not
raised by Mia in response to Twenty-Third Street’s counterclaim. See Cal. Condo. Ass’n v.
Peterson, 301 Va. 14, 20 (2022).
Second, Twenty-Third Street argues that even if Exhibit 11 constituted a written
amendment of the lease with respect to rent, it “must be read as written”; accordingly, “the
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B. Fraud and Misrepresentation
Twenty-Third Street also argues that the circuit court erred in finding that Exhibit 11
constituted an enforceable amendment to the lease because the amendment was “procured by
fraud and misrepresentation.” In closing argument, Twenty-Third Street suggested that Mia
engaged in fraud or misrepresentation regarding the COVID-19 relief funds available to him,
which it alleged he could have used to pay rent. However, Twenty-Third Street never
specifically pled fraud to the circuit court prior to trial—either in its answer and counterclaim to
Mia’s original complaint or its amended answer and counterclaim. “[T]he rule is well
established that fraud must be clearly alleged in order that evidence intended to prove fraud may
be introduced,” because “[e]very litigant is entitled to be told by his adversary in plain and
explicit language what is his ground of complaint or defense.” Brooks v. Bankson, 248 Va. 197,
206 (1994) (quoting Chesapeake & Ohio Ry. Co. v. Osborne, 154 Va. 477, 506 (1930)); see also
Ciarochi v. Ciarochi, 194 Va. 313, 315 (1952) (“Where fraud is relied on, the bill must show
specifically in what the fraud consists, so that the [opposing party] may have the opportunity of
shaping his defence accordingly, and since it must be clearly proved it must be distinctly stated.”
(quoting Alsop v. Catlett, 97 Va. 364, 370 (1899))). Twenty-Third Street did specifically allege
fraud and misrepresentation in its motion for reconsideration, but the record, as noted above,
contains no indication that Twenty-Third Street either requested or received a ruling on its
motion. Accordingly, Twenty-Third Street’s motion for reconsideration did not preserve this
argument for appellate review. See Westlake Legal Grp. v. Flynn, 293 Va. 344, 352 (2017)
$16,000 payment could, at best, have been a modification of the unpaid rent for the named four
months” of December 2020 and January through March 2021. Although Twenty-Third Street
presented this argument to the court in its motion for reconsideration, the record, as noted above,
contains no indication that Twenty-Third Street either requested or received a ruling on its
motion. Accordingly, Twenty-Third Street did not preserve this argument for appellate review.
See Westlake Legal Grp. v. Flynn, 293 Va. 344, 352 (2017).
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(noting that “[a] motion to reconsider is insufficient to preserve an argument not previously
presented unless the record establishes that the court had an opportunity to rule on the motion,”
and holding that the appellant had thus waived the issue raised because “[t]he record contains no
indication that the motion was ever heard or decided, or that a hearing was ever requested
thereon”). Since Twenty-Third Street neither specifically pled fraud or misrepresentation prior
to trial, nor preserved its allegation of fraud and misrepresentation through its post-trial motion,
we hold that the issue is waived.
C. Proof of Unpaid Rent Due and Owing from Mia
Lastly, Twenty-Third Street argues that the circuit court erred by declaring that it “failed
to carry its burden of proving that there was unpaid rent due and ow[]ing from [Mia].”
Specifically, Twenty-Third Street contends that apart from its evidence of rent due from the
latter part of 2020 and early 2021, its evidence also demonstrated that Mia owed unpaid rent
from 2019 and the early period of the COVID-19 pandemic in 2020, together with “late fees and
administration fees.” It thus argues that “[u]nless the subject ruling [of no unpaid rent due and
owing] simply arose out of the Exhibit 11 position, there is no supporting findings to have
excluded the unchallenged computations of rent due.” We hold that this argument is without
merit, for precisely the reason referenced by Twenty-Third Street and discussed above—that
clear, unequivocal, and convincing evidence demonstrates that in the document contained in
Exhibit 11, the parties agreed that after Mia paid certain funds between March and June, 2021,
he would have a “[z]ero balance” going forward with respect to any arrears of rent. Accordingly,
we find no error by the circuit court in its ruling that Twenty-Third Street failed to meet its
burden of proving any further rents due and owing from Mia.
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III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s dismissal of Twenty-Third
Street’s counterclaim.
Affirmed.
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