Expo Properties, LLC et al v. Experient, Inc

Filing 69

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/26/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EXPO PROPERTIES, LLC, et al.,
Plaintiffs,

:
:

v.

:
Civil Action No. GLR-14-688

EXPERIENT, INC,

:

Defendant.

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s, Experient,
Inc. (“Experient”),1 Motion for Partial Summary Judgment (ECF No.
54) and Plaintiffs’, Expo Properties, LLC (“Expo Properties”)
and Merchants Properties, LLC (“Merchants Properties”), Motion
for Partial Summary Judgment2 (ECF No. 62).

This case concerns a

landlord-tenant dispute associated with the Galaxy Building, a
large commercial property in Frederick, Maryland.
at

issue

are

how

the

parties’

lease

agreement

Principally
should

be

construed as a matter of law and whether the parties amended
their lease agreement to make Experient responsible for paying
the entire cost of all repairs.
Having reviewed the Motions and supporting documents, the
Court finds no hearing necessary.
2016).
1

See Local Rule 105.6 (D.Md.

For the reasons outlined below, the Court will deny Expo

The Court will also use “Experient” to refer to
Experient’s predecessors.
2
The Court will refer to this Motion as “Expo Properties’s
Motion.”

Properties’s Motion and grant in part and deny without prejudice
in part Experient’s Motion.
BACKGROUND3

I.
A.

The Lease Agreement
On March 17, 1994, John Laughlin, the Galaxy Building’s

original

owner,

Registration,

executed

Inc.

a

Lease

(“Galaxy”).

Agreement
Galaxy

with

agreed

Galaxy

to

rent

approximately 25,000 square-feet of office and warehouse space
in the Galaxy Building (the “Leased Premises”) for an initial
term of five years.
The Lease Agreement assigns

financial

responsibility for

repairs, maintenance, and capital improvements.

Article 4D(2)

provides that Galaxy “agrees to pay the costs and expenses paid
or incurred by or on behalf of Landlord for managing, operating,
maintaining and repairing the Leased Premises.”

(Def.’s Mot.

for Partial Summ. J. Ex. 1A [“Lease Agreement”], at 4, ECF No.
54-2).
shall

Article
be

4D(3)

included

in

then

states

“Landlord

Tenant as additional rent.”

that

expenses

(Id. at 5).

capital
and

improvements

charged

to

the

Article 6C provides

that Galaxy is responsible for paying all repair and maintenance
costs associated with the “exterior and interior of the Leased
Premises,

together

with

all

windows

3

and

glass,

electrical,

Unless otherwise noted, the following facts are taken from
the parties’ briefings and exhibits, undisputed, and viewed in
the light most favorable to the nonmoving party.
2

plumbing,

heating,

equipment.”

(Id.

responsibility

for

air

conditioning

at

8).

all

Galaxy’s

repairs

subject to an exception.

and

and

other

mechanical

exclusive

maintenance,

financial

however,

is

The final clause of Article 6C (the

“Article 6 Cost-Sharing Provision”) stipulates that landlord and
tenant shall each pay fifty percent of the cost of a repair or
replacement when it “(i) is not made necessary in whole or in
part as a result of Tenant’s negligence, (ii) is Five Thousand
Dollars ($5,000.00) or more in amount, and (iii) has an actual
economic

life

in

effect.”

excess

of

the

term

of

the

Lease

then

(Id.).

Article 8 governs structural repairs and maintenance.

in

It

provides that “Tenant shall be responsible to make all necessary
repairs
building

during
to

the

which

term
the

of

this

Leased

Lease

Premises

to

the

are

a

roof
part

of

the

and

all

necessary structural repairs to the exterior walls, foundations,
sidewalks, parking lots, and driveways.”

(Id. at 11).

Article

8 specifies that “Landlord is under no obligation to perform any
repairs and/or maintenance with respect to the Leased Premises.”
(Id.).

Nevertheless,

Article

8’s

penultimate

clause

(the

“Article 8 Cost-Sharing Provision”) provides an exception to the
tenant’s sole

financial

and maintenance.

responsibility for structural repairs

Like the Article 6 Cost-Sharing Provision, the

Article 8 Cost-Sharing Provision stipulates that landlord and
3

tenant shall each pay fifty percent of the cost if: “(i) the
structural repair or maintenance is not made necessary in whole
or in part as a result of Tenant’s negligence, (ii) the cost of
an item of structural repair or maintenance is Five Thousand
Dollars ($5,000.00) or more, and (iii) the actual economic life
of such structural repairs or maintenance is in excess of the
term of the Lease then in effect.”

(Id. at 11–12).

The Lease Agreement also addresses the condition in which
the tenant must return the Leased Premises at the end of the
term.

Article 6C makes Galaxy responsible for returning “the

exterior and interior of the Leased Premises . . . in the same
good order in which they are received.”
Article 24 provides that the tenant

(Id. at 8).

And,

must “return the Leased

Premises and all equipment and fixtures of Landlord therein to
Landlord in as good condition as when Tenant originally took
possession, ordinary wear . . . excepted.”
B.

(Id. at 22).

Lease Amendments, the May 1998 Letter, and the Estoppel
Certificate
The

occasions.

parties
In

amended

the

the

“Amendment

Lease
to

Agreement

Lease”

(“First

on

several

Amendment”)

executed on April 21, 1997, Laughlin agreed to construct a twostory, 25,700 square-foot addition to the Leased Premises, which
Galaxy would occupy beginning in January 1998.
No. 54-2).

(Id. Ex. 1B, ECF

Following a change in Galaxy’s ownership structure,

4

Expo Exchange, LLC (“Expo Exchange”) became the tenant under the
Lease Agreement in October 1997.

In the “Second Amendment to

Lease Agreement,” (“Second Amendment”) executed on January 12,
1998, the parties agreed to increased rent to account for Galaxy4
moving into the addition and adjusted the start date of the
five-year lease to February 1, 1998.

(Id. Ex. 1C, ECF No. 54-

2).
On May 1, 1998, Laughlin wrote a letter to Michael Goodwin,
the President and Chief Executive Officer of Galaxy (the “May
1998 Letter”).

(Id. Ex. 4, ECF No. 54-5).

The apparent purpose

of the May 1998 Letter was to resolve what Laughlin perceived as
confusion regarding who the Lease Agreement requires to pay for
repairs,

maintenance,

and

capital

improvements.

Laughlin

explained that “our lease makes it clear that all costs for
repairs, maintenance, and capital improvements will be borne by
Galaxy.”

(Id.).

Laughlin went on to further emphasize this

point, stating that “in all cases where we agree that work needs
to be done, Galaxy pays the bill.”

(Id.).

Laughlin did not

address the Articles 6 and 8 Cost-Sharing Provisions in the May
1998 Letter.
In

the

“Third

Amendment

to

Lease,”

(“Third

Amendment”)

executed on March 29, 2002, Expo Exchange exercised its option
4

Though Expo Exchange became the tenant under the Lease
Agreement in 1997, Galaxy’s name remained on the Second
Amendment.
5

to extend the lease for an additional five-year term commencing
on February 1, 2003 and terminating on January 31, 2008.
Ex.

1D,

ECF

No.

54-2).

In

the

“Fourth

Amendment

to

(Id.
Lease

Agreement,” (“Fourth Amendment”) executed on August 30, 2005,
Expo Exchange agreed to rent 11,150 square-feet of space in the
property adjacent to the Galaxy Building.

(Id. Ex. 1E, ECF No.

54-2).
In October 2004, Laughlin transferred his interest in the
Lease

Agreement

to

Expo

Properties,

LLC

(“Expo

Properties”).

Then, in 2006, Merchants Properties, with a loan from Mercantile
Safe

Deposit

and

Trust

Company

(“Mercantile”),

acquired

the

Leased Premises when it acquired all membership interests in
Expo Properties.

In accordance with the obligation in Article

26 of the Lease Agreement, Expo Exchange executed an Estoppel
Certificate on July 18, 2006.

(Id. Ex. 5, ECF No. 54-6).

In

the Estoppel Certificate, Experient represents that it is the
tenant under the Lease Agreement and it is not in default of any
of

its

obligations.

(Id.).

The

Estoppel

Certificate

also

provides that the Lease Agreement had been amended by the First
through Fourth Amendments and the May 1998 Letter.
Paragraph
Exchange’s
and

capital

8

of

financial

the

Estoppel

responsibility

improvements.

It

Certificate
for

begins

(Id.).
addresses

repairs,
by

Expo

maintenance,

reciting

the

first

sentence of Article 8 of the Lease Agreement, which provides
6

that the tenant shall be responsible for all structural repairs
and maintenance.

(Id. at 3).

Paragraph 8 then states that

“[t]his provision and provisions of Article 4D(2) and 4D(3) are
clarified in the May 1998 Letter.”
provides

that

“Tenant

(Id.).

acknowledges

that

Finally, Paragraph 8
all

repairs

to

the

Building and the Leased Premises of which the Building are a
part

are

the

improvements.”

responsibility

of

Tenant,

including

capital

Like the May 1998 Letter, Paragraph 8 does not

mention the Articles 6 and 8 Cost-Sharing Provisions.

(Id.).

On November 14, 2011, Expo Properties and Experient, Expo
Exchange’s successor in interest, executed a “Fifth Amendment to
Lease” (“Fifth Amendment”) to extend the lease termination date
to July 31, 2013.
2).

(Id. Ex. 1F [“Fifth Amendment”], ECF No. 54-

The Fifth Amendment defines the “existing Lease” as the

Lease Agreement plus the First through Fourth Amendments and the
Estoppel Certificate.
C.

Preparation for Lease Expiration
In

June

2012,

Agreement

was

Experient

provide

heating,

due

approximately
to

expire,

inspection

ventilation,

and

one

Expo

before

Properties

reports

air

year

for

conditioning

the

the

Lease

requested
roof

(“HVAC”)

and

that
the

systems.

Experient responded in January 2013 with one-page summaries.

On

January 30, 2013, Harry Halpert, President of Expo Properties,
wrote a letter to Mark Alspaw, Vice President of Real Estate for
7

Maritz

Holding,

Inc.,

Experient’s

parent

company,

that the one-page summaries were insufficient.

explaining

Halpert stated

that Expo Properties fully expected Experient to promptly make
the repairs recommended in the one-page summaries and that Expo
Properties would send its own inspector to complete a survey of
the entire Leased Premises.

Halpert then added that if Expo

Properties’s inspector determined that any additional repairs or
replacements were necessary, Experient would have to complete
them, in their entirety, before the Lease Agreement expired.
Halpert

also

used

his

January

30,

2013

Letter

as

an

opportunity to further clarify what he considered Experient’s
responsibilities for repairs and replacements under the Lease
Agreement.

Halpert asserts that the Fifth Amendment to the

Lease Agreement expressly incorporated by reference the Estoppel
Certificate and May 1998 Letter.

As such, he contends, the

Leased Premises “are to be surrendered by Experient to [Expo
Properties]

with

all

the

necessary

repairs

and

replacements

having been made by Experient, and in the condition otherwise
required under the Lease, on or before July 31, 2013.”

(Id. Ex.

8, at 2, ECF No. 54-9).
Expo

Properties

sent

KCI

Technologies,

inspect the Leased Premises on March 19, 2013.

Inc.

(“KCI”)

to

That inspection

resulted in a Building Assessment Report dated May 30, 2013
(“KCI’s Initial Report”).

(Id. Ex. 9, ECF No. 54-10).
8

KCI’s

Initial Report includes three-and-a-half pages of recommended
repairs

and

million.

replacements

estimated

to

cost

approximately

$1

(Id.).

Also on May 30, 2013, Douglas Hoffberger, the President of
Keystone Realty, with whom Expo Properties had contracted to
manage

the

Leased

Premises,

“Hoffberger Email”).

sent

an

email

to

Alspaw

(Id. Ex. 10, ECF No. 54-11).

(the

Hoffberger

attached KCI’s Initial Report and directed Experient to perform
all the work that KCI identified before the end of the lease
term.

(Id.).

Hoffberger also directed Experient to

remove

walls that did not reach the ceiling (“half-walls”), replace the
carpeting that had been removed under the footprint of the halfwalls, and remove and replace “[a]ll carpeting that is damaged
or worn.”

(Id. at 2).

In early July 2013, Experient began to vacate the Leased
Premises

by

equipment.

moving

its

employees,

furniture,

fixtures,

and

Around this same time, Experient sent a letter to

Expo Properties stating that Experient disagreed with numerous
items in KCI’s Initial Report.
Experient

explained

that

(Id. Ex. 17, ECF No. 54-18).

“[s]everal

items

in

[KCI’s

Initial]

Report are ‘should’ or ‘could’ repairs, not deemed ‘necessary.’”
(Id. at 2).

Experient also asserted that the May 1998 Letter

did not modify the Lease and, as such, the Articles 6 and 8
Cost-Sharing

Provisions

were

still
9

operative.

(Id.).

Furthermore, Experient listed all the repairs and replacements
recommended in the Hoffberger Email and KCI’s Initial Report and
identified those which it would and would not perform.
3–17).

Experient

agreed

to

remove

all

the

half-walls

installed, but only “as a courtesy” to Expo Properties.
Dep. 174:7–10, May 12, 2015, ECF No. 54-19).

(Id. at
it

(Alspaw

Experient did not

agree to fill in with new carpet the voids under the half-walls,
replace old HVAC units remaining from the original construction
of

the

Galaxy

Building,

replace

original

thermostats

with

programmable thermostats, replace carpeting that was damaged or
worn throughout the Leased Premises, or perform several types of
roof repairs.

(Def.’s Mot. for Partial Summ. J. Ex. 17, ECF No.

54-18).
Experient vacated the Leased Premises on or about the lease
expiration date of July 31, 2013.
not

all,

of

the

repairs

and

Experient has made some, but

replacements

identified

in

the

Hoffberger Email and KCI’s Initial Report.
D.

Notice of Default
KCI,

at

Expo

Properties’s

request,

re-inspected

the

premises on August 8, 2013 and prepared a Re-Inspection Report
dated August 27, 2013 (“KCI’s Re-Inspection Report”).
14, ECF No. 54-15).

(Id. Ex.

KCI’s Re-Inspection Report identified all

of the repairs and recommendations in KCI’s Initial Report that
Experient

did

not

complete

and
10

also

highlighted

additional

repairs

that

inspection.

KCI

considered

necessary

in

light

of

the

re-

(Id.).

On October 2, 2013, Expo Properties sent Experient a formal
notice

of

properly

default

advising

maintain,

repair,

Experient
and

that

restore”

its

the

“failure

Leased

to

Premises

violated Articles 6 and 8 of the Lease Agreement, the Estoppel
Certificate,
Properties

and

then

the

May

asserted

1998
that

Letter.
Experient

(Id.
was

at

1).

Expo

responsible

for

making all repairs specified in KCI’s Initial and Re-Inspection
Reports.

(Id.).

Expo Properties also contended that prior to

vacating the Leased Premises, Experient “was required to remove
certain interior walls” and replace the carpet “damaged by the
addition

and

removal

of

such

walls.”

(Id.

at

2).

Expo

Properties attached a floor plan that identified all the floorto-ceiling walls that it wanted removed and estimated that the
cost

to

remove

$240,504.

the

walls

(Id. at 2–4).

and

replace

the

carpet

would

be

Finally, Expo Properties concluded the

letter by demanding that Experient cure the purported defaults
by paying Expo Properties $1,145,669.
E.

(Id. at 2).

Procedural History
Expo

raising

Properties

four

claims:

initiated
(1)

this

breach

of

suit

on

March

contract

10,

(Count

2014,

I);

(2)

promissory estoppel (Count II); negligence (Count III); and (4)
declaratory judgment (Count IV).
11

(ECF No. 1).

The Complaint

alleges that “Experient failed to perform its maintenance and
repair

obligations,

and

left

the

[Leased

condition and disrepair when it vacated.”
1).

Premises]

in

poor

(Compl. ¶ 2, ECF No.

The Complaint specifies that Experient failed to remove

certain interior walls, restore carpeting, and repair the roof,
asphalt,
areas.

sidewalk,

HVAC

units,

and

certain

other

structural

(Id. ¶¶ 21, 22).

Expo Properties filed a First Amended Complaint on May 13,
2014,

increasing

$2,389,000.
$1,419,000

the

(ECF

amount

of

damages

17).

The

holdover

in

No.

rent

that

from

$2,389,000
Expo

$1,900,000
figure

Properties

pursuant to Article 28 of the Lease Agreement.

to

includes

calculated
(Id.).

On

September 29, 2014, the Court issued a Letter Order dismissing
Expo Properties’s negligence claim.

(ECF No. 37).

Experient

filed a Motion for Partial Summary Judgment on September 11,
2015.

(ECF No. 54).

Expo Properties filed a cross Motion for

Partial Summary Judgment and Opposition to Experient’s Motion on
October

20,

2015.

(ECF

Nos.

62,

62-1).

Experient

then

submitted a Response to Expo Properties’s Motion and a Reply in
support

of

its

Motion

on

December

4,

2015.

(ECF

No.

65).

Finally, Expo Properties filed a Reply in Support of its Motion
for Partial Summary Judgment on January 8, 2016.
The Motions are ripe for disposition.

12

(ECF No. 68).

II.
A.

DISCUSSION

Standard of Review
1.

Summary Judgment

In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmovant, drawing
all justifiable inferences in that party’s favor.

Ricci v.

DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158–59 (1970)).
when

the

movant

materials

in

demonstrates,

the

record,

Summary judgment is proper

through

including

“particular

depositions,

parts

of

documents,

electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other
materials,” that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P.

56(a),

(c)(1)(A).

Once

a

motion

for

summary

judgment is properly made and supported, the nonmovant has the
burden
exists.

of

showing

that

a

genuine

dispute

of

material

fact

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986).
A “material fact” is one that might affect the outcome of a
party’s case.

Anderson, 477 U.S. at 248; see also JKC Holding

Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
13

Cir. 2001)).

Whether a fact is considered to be “material” is

determined by the substantive law, and “[o]nly disputes over
facts

that

governing

might
law

judgment.”

affect

will

the

outcome

properly

preclude

of

the

the

suit

entry

under
of

the

summary

Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249

F.3d at 265.

A “genuine” dispute concerning a “material” fact

arises when the evidence is sufficient to allow a reasonable
jury

to

return

a

verdict

in

the

nonmoving

party’s

favor.

Anderson, 477 U.S. at 248.
When

the

parties

have

filed

cross-motions

for

summary

judgment, the court must “review each motion separately on its
own merits to ‘determine whether either of the parties deserves
judgment as a matter of law.’”
516,

523

(4th

Cir.

2003)

Rossignol v. Voorhaar, 316 F.3d

(quoting

Philip

Morris

Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)).

Inc.

v.

Moreover,

“[w]hen considering each individual motion, the court must take
care

to

‘resolve

all

factual

disputes

and

any

competing,

rational inferences in the light most favorable’ to the party
opposing that motion.”

Id. (quoting Wightman v. Springfield

Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).

This

Court, however, must also abide by its affirmative obligation to
prevent factually unsupported claims and defenses from going to
trial.

Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993).

If the evidence presented by the nonmovant is merely colorable,
14

or

is

not

granted.
B.

significantly

probative,

summary

judgment

must

be

Anderson, 477 U.S. at 249–50.

Analysis
The parties move for summary judgment on Expo Properties’s

claim for declaratory judgment.

Expo Properties moves for a

declaration that: (1) the Estoppel Certificate amended the Lease
Agreement; and the Lease Agreement requires Experient to (2) pay
the entire cost of all repairs to the Leased Premises, and (3)
return the Leased Premises in the same good order and original
condition in which Experient received them.

Experient moves for

a declaration that: (1) the Estoppel Certificate did not amend
the Lease Agreement; and the Lease Agreement does not require
Experient to (2) remove floor-to-ceiling walls, (3) replace HVAC
components that are performing within specifications simply due
to age, (4) replace all carpeting throughout the entire Leased
Premises, or (5) pay for any repairs to structural elements of
the Leased Premises, like the roof, that Expo Properties did not
make and charge to Experient as “additional rent” during the
lease term.5

The Court will address these issues in turn.

5

Experient also seeks a declaration that Expo Properties is
not entitled to hold-over rent as damages.
The Declaratory
Judgment Act, 28 U.S.C. § 2201 (2012), grants federal district
courts discretion to entertain declaratory judgment actions.
See Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995).
District courts have “discretion to entertain a declaratory
judgment action if the relief sought (i) ‘will serve a useful
purpose in clarifying and settling the legal relations in issue’
15

1.

Expo Properties’s Motion
a.

The Estoppel Certificate

Expo Properties first asserts that the Estoppel Certificate
amended the Lease Agreement by removing the Articles 6 and 8
Cost-Sharing Provisions.

Experient responds that the Estoppel

Certificate did not amend the Lease Agreement because there was
neither

mutual

assent

nor

consideration,

both

required to form a valid contract amendment.

of

which

are

Expo Properties

counters that a benefit provided to a third party can satisfy
the
that

consideration
the

because

requirement.

Estoppel
the

Fifth

Expo

Properties

Certificate

amended

Amendment

the

expressly

also

Lease

defines

asserts

Agreement
the

Lease

Agreement as including the Estoppel Certificate.
Under Maryland law,6 a party to a contract does not have a
right to unilaterally modify the contract.

Cambridge Techs.,

and (ii) ‘will terminate and afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.’”
First Nationwide Mortg. Corp. v. FISI Madison, LLC, 219
F.Supp.2d 669, 672 (D.Md. 2002) (quoting Cont’l Cas. Co. v.
Fuscardo, 35 F.3d 963, 965 (4th Cir. 1994)).
The Court finds
that there would be no useful purpose at this point in the
litigation in deciding whether Expo Properties is entitled to
hold-over rent as damages because Experient has not been
adjudged liable for breach of contract or promissory estoppel.
The Court, therefore, will not address hold-over rent.
6
The Court has diversity jurisdiction over this case
pursuant to 28 U.S.C. § 1332(a)(1) (2012).
(ECF No. 1).
The
Court, thus, must apply the substantive law of Maryland.
See
Nationwide Mut. Ins. Co. v. Welker, 792 F.Supp. 433, 437 (D.Md.
1992) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)).
16

Inc. v. Argyle Indus., Inc., 807 A.2d 125, 135 (Md.Ct.Spec.App.
2002) (quoting Metro. Life Ins. Co. v. Promenade Towers Mut.
Housing

Corp.,

581

A.2d

846,

852

(Md.Ct.Spec.App.

1990)).

Rather, a valid contract modification requires mutual assent,
L & L Corp. v. Ammendale Normal Inst., 236 A.2d 734, 737 (Md.
1968) (citing Vincent v. Palmer, 19 A.2d 183, 188 (Md. 1941)),
and

consideration,

see

Richard

F.

Kline,

Inc.

v.

Shook

Excavating & Hauling, Inc., 885 A.2d 381, 392 (Md.Ct.Spec.App.
2005).
Mutual assent comprises two elements: “(1) intent to be
bound, and (2) definiteness of terms.”
A.2d 700, 708 (Md. 2007).

Cochran v. Norkunas, 919

“Failure of parties to agree on an

essential term of a contract may indicate that the mutual assent
required to make a contract is lacking.”

Id.

To satisfy the

second element of mutual assent, the Estoppel Certificate, “must
express with definiteness and certainty the nature and extent of
the parties’ obligations.”

Cty. Comm’rs for Carroll Cty. v.

Forty W. Builders, Inc., 941 A.2d 1181, 1209–10 (Md.Ct.Spec.App.
2008) (citing Canaras v. Lift Truck Servs., 322 A.2d 866, 871
(Md. 1974)).
Here, only Experient signed the Estoppel Certificate.
is

significant for two reasons.

contains

an

integration

First,

provision,

which

This

the Lease Agreement
provides

that

“no

subsequent . . . amendment . . . to this Lease shall be binding
17

upon Landlord or Tenant unless reduced to writing signed by
them.”

(Lease

provision

does

Agreement
not

at

permit

18)

the

(emphasis

parties

to

added).
amend

the

Agreement with a writing signed by only one of them.
the

extent

Certificate
Estoppel

Experient’s
could

be

Certificate,

representations

considered
it

is

in

“terms,”

unclear

by

Lease

Second, to

the
not

whether

This

Estoppel

signing

Expo

the

Properties

agreed to any of the terms in the Estoppel Certificate, let
alone the essential terms.

As such, the Court concludes there

was no intent to be bound.
Turning to definiteness, on five separate occasions, Expo
Properties

and

Experient

executed

written

amendments

Lease Agreement that they labeled as “Amendments.”
the

First

through

specified

the

new

clarified

that

any

Fifth

Amendments

obligations
provisions

of

definite—the

the

Lease

the

the

The terms of

are

under

to

parties
and

Agreement

Lease

Agreement

not

addressed in the Amendments remained in full force and effect.
Unlike the terms of the First through Fifth Amendments, the
terms of the Estoppel Certificate are far from definite.
the Estoppel Certificate is not labeled an amendment.
the

Estoppel

contractual
For

Certificate

obligations

instance,

paragraph

does

in
8

not

describe

the

Lease

of

the

which,

Agreement

Estoppel

are

First,
Second,
if

any,

changing.

Certificate

only

recites a portion of the first sentence of Article 8 of the
18

Lease Agreement.

The Estoppel Certificate, however, does not

state whether the rest of the language in Article 8, namely the
Article 8 Cost-Sharing Provision, is being deleted.

Paragraph 8

of the Estoppel Certificate also makes a vague reference to
Article

6

of

the

Lease

Agreement,

stating

that

tenant

acknowledges that it is responsible for all repairs, but it does
not

address

whether

the

Article

6

Cost-Sharing

other portions of Article 6 are being deleted.

Provision

or

Third, assuming,

without finding, that the Estoppel Certificate amended the Lease
Agreement, the Estoppel Certificate does not provide whether the
sections of the Lease Agreement not addressed in the Estoppel
Certificate remained in full force and effect.
The Court, therefore, concludes that there was no mutual
assent associated with the Estoppel Certificate because there
was no intent to be bound or definiteness of terms.
Consideration is defined as “a benefit to the promisor or a
detriment to the promisee.”

Cty. Comm’rs for Carroll Cty., 941

A.2d at 1213–14 (quoting Harford Cty. v. Town of Bel Air, 704
A.2d 421, 430 (Md. 1998)).
performance

or

a

return

Chernick v. Chernick,

“Consideration necessitates that ‘a
promise

must

be

bargained

610 A.2d 770, 774 (Md.

for.’”

1992) (quoting

Restatement (Second) of Contracts § 71 (Am. Law Inst. 1981)).

A

performance or return promise “is bargained for if ‘it is sought
by the promisor in exchange for his promise and is given by the
19

promisee

in

exchange

for

that

promise.’”

Restatement (Second) of Contracts § 71).

Id.

(quoting

Additionally, there is

no consideration when a party performs or promises to perform a
pre-existing legal obligation.

See Berger v. Burkoff, 92 A.2d

376, 379 (Md. 1952).
In

the

Estoppel

Certificate,

of

numerous

facts

veracity

Experient

regarding

the

attests
Lease

to

the

Agreement,

including its existence, its terms, and Experient’s compliance
with its terms.

The Estoppel Certification uses “warrants,”

“certifies,” and “acknowledges” in conjunction with Experient’s
representations.

(Def.’s

Mot.

for

Partial

[“Estoppel Certificate”], ECF No. 54-6).
promises.

Nevertheless,

representations

could

be

to

extent

as

J.

Ex.

5

Experient makes no

the

construed

Summ.

Experient’s

promises

to

perform

Experient’s obligations under the Lease Agreement, Experient was
legally

obligated

Furthermore,
Certificate

by

assuming,
eliminated

contract

to

without
the

perform

finding,

Articles

6

those
that
and

obligations.
the

8

Estoppel

Cost-Sharing

Provisions, the Estoppel Certificate is silent as to what Expo
Properties agreed to do in exchange.
Expo Properties contends that there was consideration for
the

Estoppel

Certificate

because

Mercantile

benefited

by

proceeding with the loan and Merchants Properties benefited by
consummating its acquisition of the Leased Premises.
20

To be

sure, a benefit to a party outside a contractual relationship
can be sufficient consideration for an agreement or promise.
Queen City Enters., Inc. v. Indep. Theatres, Inc., 187 A.2d 459,
461 (Md. 1963).
must

be

Nonetheless, as stated above, the consideration

bargained-for.

Chernick,

610

A.2d

Restatement (Second) of Contracts § 71).

at

774

(quoting

Here, even assuming

that Experient’s representations in the Estoppel Certificate are
promises
promise

of

performance,

to

promises.

finalize

the

Experient
loan

in

did

not

seek

exchange

for

Mercantile’s
Experient’s

Rather, Experient executed the Estoppel Certificate

because it was contractually obligated to do so—Article 26 of
the

Lease

Agreement

provides

that

Experient

must

execute

estoppel certificate at Expo Properties’s request.

an

For these

reasons, the Court finds that the Estoppel Certificate lacked
consideration.
Finally,
Certificate

Expo
amended

Properties
the

Lease

argues
Agreement

that

the

because

Estoppel
the

Fifth

Amendment expressly incorporates the Estoppel Certificate into
the Lease Agreement.

The first paragraph of the Fifth Amendment

states that Experient and Expo Properties “have agreed that the
LEASE AGREEMENT executed between them on March 17, 1994; its
Four subsequent Amendments . . . and the Estoppel Certificate
dated July 18, 2006 (hereafter collectively referred to as “the
existing

Lease”)

is

hereby

amended
21

as

follows.”

(Fifth

Amendment at 1).

This paragraph, however, is not an operative

part of the agreement because it is within the recitals.

See

Pulaski v. Riland, 86 A.2d 907, 910 (Md. 1952) (stating that
recitals fall outside the operative portion of an agreement).
“To determine what the parties did, we look not to the recitals,
but to the operative part of the Agreement itself.”

Baker v.

Baker, 109 A.3d 167, 175 (Md.Ct.Spec.App. 2015).

The operative

part

the

of

the

Certificate.

Fifth

Amendment

does

not

address

Estoppel

What is more, the Fifth Amendment does not cure

the lack of consideration and mutual assent for the Estoppel
Certificate.
In sum, the Court concludes there was no mutual consent or
consideration for the Estoppel Certificate and the recitals to
the

Fifth

Amendment

did

not

cure

these

fatal

defects.

Accordingly, the Court concludes that the Estoppel Certificate
did not amend the Lease Agreement, and the Court will deny Expo
Properties’s Motion and grant Experient’s Motion with respect to
this issue.7
b.
Expo
requires

Responsibility for Repair Costs

Properties
Experient

to

next
pay

argues
the

7

that

entire

the
cost

Lease
of

all

Agreement
repairs.

To the extent Expo Properties also argues that the May
1998 Letter amended the Lease Agreement, this argument fails
because like the Estoppel Certificate, the May 1998 Letter lacks
mutual assent and consideration.
22

Addressing this issue, as well as those raised in Experient’s
Motion, requires the Court to interpret the Lease Agreement.
Under

Maryland

law,8

contract

interpretation,

including

the

determination of whether a contract is ambiguous, is a question
of law.

Sy-Lene of Wash., Inc. v. Starwood Urban Retail II,

LLC,

A.2d

829

contract

540,

544

interpretation

intentions.”

(Md.
is

2003).

“The

give

effect

to

cardinal

rule

to

parties’

the

of

Bank of Commerce v. Md. Fin. Bank, No. ELH-14-610,

2015 WL 925963, at *7 (D.Md. Mar. 2, 2015) (quoting Dumbarton
Imp. Ass’n. Inc. v. Druid Ridge Cemetery Co., 73 A.3d 224, 232
(Md. 2013)), aff’d, No. 15-1328, 2016 WL 611509 (4th Cir. Feb.
16, 2016).

To determine the parties’ intentions, the Court

begins with the written language of the contract.
Maryland

applies

the

law

of

Id.

objective

contract

interpretation under which the Court “must first determine from
the language of the agreement itself what a reasonable person in
the position of the parties would have meant at the time it was
8

Because the Court has diversity jurisdiction over this
case, the Court must apply Maryland’s choice of law rules. See
Harvard v. Perdue Farms, Inc., 403 F.Supp.2d 462, 466 (D.Md.
2005) (citing Limbach Co., LLC v. Zurich Am. Ins. Co., 396 F.3d
358, 361 (4th Cir. 2005)).
Maryland courts generally enforce
choice of law provisions in contracts. Cunningham v. Feinberg,
107 A.3d 1194, 1204 (Md. 2015) (citing Am. Motorists Ins. Co. v.
ARTRA Grp., Inc., 659 A.2d 1295, 1301 (Md. 1995)).
Here, the
Lease Agreement provides that it “shall be construed under the
laws of the State of Maryland.”
(Lease Agreement at 18).
Accordingly, the Court will apply Maryland’s rules of contract
interpretation.
23

effectuated.”

Gen. Motors Acceptance Corp. v. Daniels, 492 A.2d

1306, 1310 (Md. 1985).

If “the language of the contract is

plain and unambiguous there is no room for construction, and a
court must presume that the parties meant what they expressed.”
Id.

In this situation, “[t]he true test of what is meant is not

what the parties to the contract intended it to mean, but what a
reasonable person in the position of the parties would have
thought it meant.”

Id.

Plain and unambiguous language “will

not give away to what the parties thought that the agreement
meant or intended it to mean.”

Id. (citing Board of Trustees v.

Sherman, 373 A.2d 626, 629 (Md. 1977)).
The

construction

of

Court alone to determine.

an

unambiguous

contract

is

for

the

Wells v. Chevy Chase Bank, F.S.B.,

768 A.2d 620, 630 (Md. 2001) (quoting Rothman v. Silver, 226
A.2d 308, 310 (Md. 1967)).

Thus, if the Court determines that a

contract is unambiguous on a 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.”

Cochran, 919 A.2d at 709 n.8 (quoting Wash. Metro. Area

Transit Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 235
(4th Cir. 2007)).
A written contract is not ambiguous “simply because, in
litigation,
language.”

the

parties

offer

different

meanings

to

the

Diamond Point Plaza Ltd. P’ship v. Wells Fargo Bank,
24

N.A., 929 A.2d 932, 952 (Md. 2007).

Rather, under Maryland’s

objective view of contracts, “a written contract is ambiguous
if, when read by a reasonably prudent person, it is susceptible
of more than one meaning.”
363

(Md.

1999)

(citing

Calomiris v. Woods, 727 A.2d 358,

Heat

&

Power

Corp.

v.

Chems., Inc., 578 A.2d 1202, 1208 (Md. 1990)).

Air

Prods.

&

When determining

whether a contract is ambiguous, the Court will consider “the
character

of

the

contract,

its

purpose,

and

the

facts

circumstances of the parties at the time of execution.”

and
Id.

(quoting Pac. Indem. Co. v. Interstate Fire & Cas. Co., 488 A.2d
486, 488 (Md. 1985)).
The

Court

interpretation
ambiguous.

may
of

consult
a

extrinsic

contract

only

evidence
when

to

the

aid

contract

its
is

Sy-Lene of Wash., Inc., 829 A.2d at 544 (citing

Calomiris, 727 A.2d at 363).

Because Maryland applies the law

of objective contract interpretation, “extrinsic evidence should
answer

the

question:

how

would

a

reasonable

person

have

understood the [contract] language at the time it was made?”
Dumbarton Imp. Ass’n, Inc., 73 A.3d at 237.
extrinsic
genuine

evidence
issues

interpretation,

of

in

the

fact

summary

summary

judgment

respecting

judgment

must

materials

the

contract’s

.

.

interpretation left to the trier of fact.”

25

If “resort to

.

be

leaves
proper

refused

and

Cochran, 919 A.2d at

709 n.8 (quoting Wash. Metro. Area Transit Auth., 476 F.3d at
235).
The Court construes a written agreement in its entirety and
gives effect to each clause so that the Court “will not find an
interpretation which casts out or disregards a meaningful part
of the language of the writing.”

Sagner v. Glenangus Farms,

Inc., 198 A.2d 277, 283 (Md. 1964).
“their

ordinary

and

usual

meaning,

within which they are employed.”

The Court gives words
in

light

of

the

context

DIRECTV, Inc. v. Mattingly,

829 A.2d 626, 632–33 (Md. 2003) (citing Kasten Constr. Co. v.
Rod

Enters.,

Inc.,

301

A.2d

12,

18

(Md.

1973)).

It

is

inappropriate for the Court to “add or delete words to achieve a
meaning

not

otherwise

language used.”

evident

from

a

fair

reading

of

the

Brensdel v. Winchester Constr. Co., 898 A.2d

472, 485 (Md. 2006).

Indeed, the Court must not “rewrite the

terms of a contract so as to avoid hardship to a party, or
because

one

party

has

become

dissatisfied

Phoenix Servs. Ltd. P’ship v.

with

its

terms.”

Johns Hopkins Hosp., 892 A.2d

1185, 1224 (Md.Ct.Spec.App. 2006).
Expo Properties contends that the parties always intended
the Lease Agreement to be a “net lease,” under which Experient
would pay all costs of operating, repairing, and maintaining the
Leased Premises.

Expo Properties concedes that the Article 8

Cost-Sharing Provision is inconsistent with such an arrangement,
26

but argues that provision creates ambiguity that the Estoppel
Certificate

and

the

performance resolve.9

Lease

Agreement’s

twenty-year

course

of

Expo Properties relies almost exclusively

on the parties’ course of performance, highlighting extensive
deposition testimony and accounting records demonstrating that
Experient always paid the entire cost of all repairs.
Experient

argues

that

the

Lease

Agreement

unambiguously

provides that Experient is not required to pay the entire cost
of

all

repairs

because

the

Articles

6

and

8

Cost-Sharing

Provisions make Expo Properties responsible for paying half the
cost of repairs

that

meet the criteria of those provisions.

Experient also repudiates the evidence of course of performance,
arguing it is completely inapposite because the Lease Agreement
is unambiguous.
The Court observes several portions of the Lease Agreement
that appear to make Experient responsible for paying the entire
cost of all repairs.

For instance, Article 4D(2) provides that

Experient “agrees to pay the costs and expenses paid or incurred
by or on behalf of Landlord for managing, operating, maintaining
and repairing the Leased Premises,” (Lease Agreement at 4), and
Article 6C provides that “Landlord shall be under no liability

9

The Court has previously concluded that the Estoppel
Certificate did not amend the Lease Agreement to eliminate the
Articles 6 and 8 Cost-Sharing Provisions. As such, this portion
of Expo Properties’ argument fails.
27

for repairs[s],” (id. at 8).

The Articles 6 and 8 Cost-Sharing

Provisions are clearly at odds with this language.

The question

becomes,

8

Cost-Sharing

are

unambiguous

then,

Provisions

whether

create

the

ambiguity

Articles
or

6

whether

and
they

exceptions to Experient’s exclusive financial responsibility for
all repairs.
Article 6C begins by stating, “Tenant shall keep at its own
expense (except as otherwise provided hereinbelow) the exterior
and interior of the Leased Premises . . . in the same good order
in

which

they

are

received.”

(Id.)

(emphasis

added).

The

exception that follows is the Article 6 Cost-Sharing Provision.
Article 8 begins by explaining that “Tenant shall be responsible
to make all necessary repairs,” (id. at 11) (emphasis added).
Notably, this portion of the first sentence of Article 8 does
not say that Experient shall “pay for” or “bear the cost of” all
repairs—it

says

“make,”

as

in

“carry

out,”

all

repairs.

Webster’s Third New International Dictionary Unabridged at 1363
(Philip Babcock Gove, ed., Merriam-Webster 1986) (defining “to
make” as “to carry out”); see Sy-Lene of Wash., Inc., 829 A.2d
at 547 (Md. 2003) (consulting dictionary to determine the usual
and ordinary meaning of a term).

It is the Article 8 Cost-

Sharing Provision that specifies who is actually responsible for
paying

for

any

repairs

that

are

addresses who bears the cost:
28

made

because

it

explicitly

The cost of all structural repairs and
maintenance to the Leased Premises . . .
shall be borne by the Tenant as additional
rent hereunder, except in those instances
where [Tenant’s negligence did not cause the
repair, the repair costs $5,000 or more, and
the actual economic life of the repair
exceeds the term of the Lease Agreement then
in effect, in which case Landlord and Tenant
each pay half the cost].
(Id.

at

11–12)

(emphasis

added).

Like

the

Article

6

Cost-

Sharing Provision, the Article 8 Cost-Sharing Provision uses the
word “except,” plainly evincing that the parties also intended
the

Article

8

Cost-Sharing

Provision

to

be

an

exception

to

Experient’s exclusive financial responsibility for all repairs.
The Court, therefore, concludes that the Lease Agreement is
unambiguous and does not require Experient to pay the entire
cost of all repairs.

Rather, according to the Articles 6 and 8

Cost-Sharing Provisions, Experient is only responsible for fifty
percent of the cost of repairs when they meet the specified
criteria.
cannot

Because the Lease Agreement is unambiguous, the Court

rely

on

the

Properties presents.

extensive

extrinsic

evidence

that

See Calomiris, 727 A.2d at 363.

Expo

Even if

Experient paid the entire cost of all repairs during the two
decades

the

Lease

Agreement

was

in

effect,

the

plain,

unambiguous language of the Lease Agreement limits Experient’s
financial responsibility.

The Articles 6 and 8 Cost-Sharing

Provisions

any

utterly

belie

29

purported

intention

to

make

Experient responsible for the entire cost of all repairs.

And,

disregarding the Articles 6 and 8 Cost-Sharing Provisions would
be tantamount to rewriting the terms of the Lease Agreement,
which the Court must not do.
892

A.2d

at

1224.

See Phoenix Servs. Ltd. P’ship,

Accordingly,

the

Court

will

deny

Expo

Properties’ Motion as to this issue.
c.

Condition of Leased Premises upon Surrender

Expo Properties further asserts that the Lease Agreement
requires Experient to return the Leased Premises in the same
good

order

and

original

condition

beginning of the lease term.

it

received

them

at

the

The Lease Agreement contains two

provisions that address the condition in which Experient must
return the Leased Premises.10
Experient
Leased

shall

surrender

Premises,

electrical,

the

together

plumbing,

First, Article 6C provides that
“exterior

with

heating,

all

air

and

interior

windows

conditioning

and
and

of

the

glass,
other

mechanical equipment used in connection therewith . . . in the
same good order in which they are received.”
at 8).

(Lease Agreement

Second, Article 24 similarly provides that Experient

10

Expo Properties relies on Article 6L to support its
argument that the Lease Agreement requires Experient to return
the Leased Premises in the same condition it received them. The
Court observes, however, that Article 6L only addresses those
portions of the Leased Premises from which Experient removes
alterations such as repairs, replacements, decorations, or
fixtures.
The Court concludes, therefore, that Article 6L is
not helpful in resolving this request for declaratory relief.
30

shall “return the Leased Premises and all equipment and fixtures
of Landlord therein to Landlord in as good condition as when
Tenant

originally

took

possession.”

(Id.

at

22).

Unlike

Article 6C, however, Article 24 excepts “ordinary wear.”

(Id.).

Consequently, Articles 6C and 24 are in conflict—both provisions
require Experient to return the Leased Premises in the same
condition in which it received them, but Article 24 permits
Experient to leave ordinary wear.
When a written agreement contains conflicting provisions,
if “one is general in character and the other is specific, the
specific stipulation will take precedence over the general, and
control it.”

Heist v. E. Sav. Bank, FSB, 884 A.2d 1224, 1228

(Md.Ct.Spec.App. 2005) (quoting Fed. Ins. Co. v. Allstate Ins.
Co.,

341

A.2d

399,

407

(Md.

1975)).

Also,

conflicting

provisions “must, if possible, be construed to effectuate the
intention of the parties as collected from the whole instrument,
the

subject

matter

of

the

agreement,

the

circumstances

surrounding its execution, and its purpose and design.”

Heist

v. E. Sav. Bank, FSB, 884 A.2d 1224, 1228 (Md.Ct.Spec.App. 2005)
(quoting Chew v. DeVries, 213 A.2d 742, 745 (Md. 1965)).
Here, the relevant language in Article 6C is general in
character—it
Conversely,

disregards
the

the

pertinent

exception

language

in

for

ordinary

Article

24

is

wear.
more

specific because it identifies the exception for ordinary wear.
31

As

such,

the

Moreover,

Court

interpreting

concludes

that

the

Agreement

Lease

Article
to

24
find

controls.
that

the

Lease Agreement does not require Experient to remedy ordinary
wear is consonant with the intention of the parties as reflected
outside the relevant language in Articles 6C and 24.
portion

of

Article

6C

addresses

carpeting

and

A separate

provides

that

Experient shall pay for “any damage to carpeting caused by lack
of protective mats under desk chairs or equipment or any other
abnormal

puncture

(emphasis added).

of

wearing

of

carpeting.”

(Id.

at

8)

If the parties did not intend to create an

exception for ordinary, or normal, wear, there would have been
no reason to define “abnormal” wear because Experient would be
required to rectify any and all wear during the lease term.
The

Court,

thus,

concludes

that

the

Lease

Agreement

requires Experient to return the Leased Premises in the same
good order and original condition in which Experient received
them, except for ordinary wear.

Accordingly, the Court will

deny Experient’s Motion as to this issue.
2.

Experient’s Motion
a.

Floor-to-Ceiling Walls

Experient first argues that the Lease Agreement does not
require it to remove floor-to-ceiling walls because they are
improvements,

not

fixtures.

Expo

floor-to-ceiling walls are fixtures.
32

Properties

maintains

that

Article 6L of the Lease Agreement addresses alterations to
the Leased Premises.
affix

all

It provides that “Tenant will make and/or

interior

repairs,

decorations at its own cost.”

replacements,

(Id. at 10).

fixtures,

and

It then states that

to the extent any of these alterations “shall become affixed to
the Leased Premises or shall be attached to the face of any wall
or partition (interior or exterior) in the Leased Premises,”
these alterations “shall become the property of the Landlord.”
(Id. 10–11).

Article 6L also gives Expo Properties an option at

the end of the lease term to require the tenant to remove all
alterations

Leased

Premises

affected by the removal to their original condition.

(Id. at

11).

and

restore

the

portions

of

the

Finally, the Lease Agreement provides that Experient must

obtain prior written consent before making “improvements” to the
Leased Premises.

The Lease Agreement does not require Experient

to remove improvements at the end of the lease term.
Because floor-to-ceiling walls do not constitute repairs,
replacements, or decorations based on the ordinary meaning of
these terms, the Court must determine whether floor-to-ceiling
walls are fixtures.

Article 6L contemplates that fixtures could

be “affixed” to the Leased Premises or “attached to the face of
[a] wall or partition.”

(Id. at 10).

To affix is defined as

“to attach physically (as by nails or glue).”
New

International

Dictionary

Unabridged
33

at

Webster’s Third
36.

Because

an

entire

floor-to-ceiling

wall

could

reasonably

be

attached

to

another wall with nails or another fastener, a reasonable person
could interpret a floor-to-ceiling wall as a fixture.
reasonable

person

might

also

construe

a

fixture

But, a

as

defining

something much smaller than a floor-to-ceiling wall that would
not cover the entire surface of another wall to which it was
attached.

Thus,

because

susceptible of alternate

the

term

fixture

is

reasonably

meanings—one that includes

floor-to-

ceiling walls and one that does not—the Court finds that Article
6L is ambiguous and will consider extrinsic evidence to attempt
to resolve this ambiguity.
Experient presents excerpts from Laughlin’s, Halpert’s, and
Alspaw’s

depositions

in

which

they

testify

that

a

floor-to-

ceiling wall is an improvement, not a fixture.

(Laughlin Dep.

180:2–181:14,

(Halpert

June

22,

2015,

ECF

No.

54-17);

Dep.

136:21–137:2, June 9, 2015, ECF No. 54-7); (Alspaw Dep. 176:18–
21, May 12, 2015, ECF No. 65-1).
no

consequence.

The

This testimony, however, is of

subjective

opinions

of

three

representatives of the parties to the Lease Agreement do little
to explain how a reasonable person would have understood the
term “fixture” at the time it was added to the original Lease
Agreement.

See

Dumbarton

Imp.

Ass’n,

Inc.,

73

A.3d

at

237

(explaining that extrinsic evidence did not resolve ambiguity
because “the subjective aspirations of one of the parties” to a
34

contract “does little to explain how a reasonable person would
have understood the [contract’s] language at the time it was
written”).

Consequently,

Experient’s extrinsic evidence does

not resolve the ambiguity concerning what constitutes a fixture.
Even assuming the record was undisputed that the parties
did

not

intend

fixtures

to

include

floor-to-ceiling

walls,

Article 24 requires Experient to return the Leased Premises in
the same good order and condition in which Experient received
them, except for ordinary wear.

If Experient installed all the

floor-to-ceiling walls during its tenancy, then Article 24 would
require Experient to remove these walls.

In the opening brief

supporting their Motion, Experient asserts that the floor-toceiling
tenancy.

walls

“may”

have

been

installed

during

Experient’s

(Mem. Of Law in Support of Mot. for Partial Summ. J.,

at 15, ECF No. 54-1).

Experient, however, does not highlight

any evidence demonstrating that

any

or all

of the floor-to-

ceiling walls that Expo Properties wants removed existed when
Experient began its tenancy.
Accordingly,

the

Court

concludes

that

Experient

is

not

entitled to judgment as a matter of law and will deny without
prejudice Experient’s Motion as to this issue.
b.

HVAC

Experient next asserts that the Lease Agreement does not
require it to replace HVAC components simply due to their old
35

age.

KCI’s

Initial

Report

identified

two

HVAC

replacement

activities that Experient did not agree to perform: (1) replace
any HVAC units that were installed when the Galaxy building was
first

constructed;

and

(2)

programmable thermostats.11

replace

original

thermostats

with

By directing Experient to perform

these replacements, Expo Properties is essentially asking for
upgrades to the HVAC systems.

The Lease Agreement does not

require this.
As the Court concluded above, the Lease Agreement requires
Experient to pay for the repairs, replacements, maintenance, and
alterations that are necessary and return the Leased Premises to
the same good order and condition in which Experient received
them, except for ordinary wear.

The Lease Agreement does not

require Experient to install new HVAC equipment at the end of
the lease term.

Accordingly, the Court will grant Experient’s

Motion as to this issue.
c.

Carpeting

Experient further argues that the Lease Agreement does not
require Experient to replace all the carpeting in the entire
Leased Premises.
Court

whether

As an initial matter, it is unclear to the

Expo

Properties

11

has

actually

requested

that

Though it is unclear in KCI’s Initial Report, the Court
will assume for purposes of its analysis that when KCI’s Initial
Report states that HVAC units and thermostats should be
“replaced,” KCI means that Experient should install new
equipment.
36

Experient

replace

Premises.

all

the

carpeting

in

the

entire

Leased

The Hoffberger Email contains Expo Properties’s two

requests regarding carpeting.

The first provides that “[a]ll

carpeting that is damaged or worn . . . should be removed and
replaced

with

similar

carpeting.”

Summ. J. Ex. 10, at 2, ECF No. 54-11).

(Def.’s

Mot.

for

Partial

The second provides that

Experient should “patch the floors” where carpet was removed to
install the half-walls.

(Id.).

Because Article 24 excepts ordinary wear, the Court finds
that the Lease Agreement does not require Experient to replace
worn carpet as long as the wear is ordinary and not “abnormal.”
Though the Lease Agreement does not define abnormal wear, it
does offer wear caused by “lack of protective mats under desk
chairs or equipment” as one example of abnormal wear.
Agreement at 8).

(Lease

As for replacing the strips of carpeting that

were removed to install the half-walls, the Court finds that the
Lease Agreement is ambiguous as to whether the removal of these
strips

qualifies

as

abnormal

puncturing

under

the

Lease

Agreement.

To puncture is defined as “to pierce with a pointed

instrument

or

object.”

Webster’s

Dictionary Unabridged at 1843.

Third

New

International

It is reasonable to interpret an

abnormal puncture as an unintentional rip or tear in carpeting
caused by a sharp object or as an intentional extraction of a
strip

of

carpeting

with

a

sharp
37

tool

such

as

a

knife.

Experient, however, presents no evidence from which the Court
could ascertain what a reasonable person would have understood
abnormal puncturing to mean when executing the original Lease
Agreement and its amendments.
In sum, the Court concludes that the Lease Agreement does
not

require

Experient

ordinary wear.
entitled to

to

replace

carpeting

exhibiting

only

The Court also concludes that Experient is not

a

declaration

that the Lease Agreement does not

require it to replace the strips of carpeting that were removed
to install the half-walls.

Accordingly, the Court will grant in

part and deny without prejudice in part Experient’s Motion as to
carpeting.
d.

Roof and Other Structural Repairs

Finally, Experient contends that Article 8 of the Lease
Agreement does not require it to pay for any structural repairs
to

the

Leased

Premises,

such

as

roof

repairs,

that

Expo

Properties did not make and charge to Experient as “additional
rent” during the lease term.

Experient maintains that it made

all necessary repairs to the roof and other structural elements
of

the

Leased

disagrees,

Premises

asserting

before

that

KCI’s

vacating.
Initial

Expo
and

Properties

Re-Inspection

Reports detail numerous structural repairs that are necessary
and remain Experient’s financial responsibility.

38

The first sentence of Article 8 provides that “Tenant shall
be responsible to make all necessary repairs during the term of
this Lease to the roof of the building of which the Leased
Premises are a part and all necessary structural repairs to the
exterior

walls,

driveways.”

foundations,

sidewalks,

parking

lots,

and

(Lease Agreement at 11) (emphasis added).

When

read in isolation, this language does not specify whether the
tenant

or

landlord

necessary—it
necessary”
Article

does
or

8,

determines

not

“all

however,

say

which

“all

repairs

repairs

that

goes

to

on

structural
that

Tenant
clarify

repairs

Landlord

deems
this.

are
deems

necessary.”
The

second

sentence of Article 8 gives Expo Properties the option to enter
the Leased Premises and “make such reasonable structural repairs
and maintenance to the Leased Premises
necessary or proper.”

as Landlord may deem

(Id.) (emphasis added).

The phrase “as

Landlord may deem necessary” is noticeably absent from the first
sentence of Article 8.
determine

which

This means that Expo Properties may only

repairs

are

necessary

when

it

exercises

its

option to enter the Leased Premises, identify necessary repairs,
and make those repairs on its own.

In all other instances,

Experient determines which repairs are necessary.
Reading

the

interpretation.

Lease

Agreement

as

a

whole

bolsters

this

The Lease Agreement makes Experient exclusively

responsible for maintaining and repairing the Leased Premises,
39

except when repairs meet the criteria outlined in the Articles 6
and

8

Cost-Sharing

Provisions.

Assigning

this

responsibility

almost entirely to Experient demonstrates that Expo Properties
did not intend to take an active role, if any, in maintaining
the Leased Premises.
Properties

is

inspecting

the

repairs

and

to

make

responsible
Leased

maintenance

antithetical
intended.

Construing Article 8 to conclude that Expo

to

the

for

Premises
that

constantly
to

are

hands-off

monitoring

identify

necessary

approach

that

the

would

and

structural
be

Expo

utterly

Properties

Because Expo Properties did not exercise its option
the

Inspection

structural

Reports

that

repairs
Expo

in

KCI’s

Properties

Initial

considers

and

Re-

necessary,

Expo Properties may not require Experient to make those repairs.
Even

if

Expo

Properties

were

to

make

on

its

own

the

structural repairs it considers necessary, however, Experient
would not be financially responsible for them.

Under Article 8,

regardless of who performs structural repairs, the cost “shall
be borne by the Tenant as additional rent hereunder.”

(Id.).

Article 4D provides that “additional rent” shall only be paid
“[t]hroughout the term of [the] Lease.”

(Id. at 4).

Because

the Lease Agreement has expired, Expo Properties can no longer
pass the cost of structural repairs onto Experient.
Accordingly, the Court will grant Experient’s Motion as to
this issue.
40

III. CONCLUSION
For the foregoing reasons, Experient’s Motion for Partial
Summary Judgment (ECF No. 54) will be GRANTED IN PART and DENIED
WITHOUT

PREJUDICE

IN

PART

and

Expo

Properties’

Partial Summary Judgment (ECF No. 62) will be DENIED.

Motion

for

The Court

concludes that the Estoppel Certificate did not amend the Lease
Agreement.

The Court also concludes that the Lease Agreement

does not require Experient to: (1) pay the entire cost of all
repairs, as the Articles 6 and 8 Cost-Sharing Provision remain
operative; (2) install new HVAC equipment at the end of the
lease term; (3) replace carpeting exhibiting only ordinary wear;
or (4) pay for any structural repairs to the Leased Premises
that Expo Properties did not make and charge to Experient as
“additional rent” during the lease term.

Finally, the Court

further concludes that the Lease Agreement requires Experient to
return the Leased Premises in the same good order and original
condition Experient received them, except for ordinary wear.
separate Order follows.
Entered this 26th day of July, 2016
/s/
____________________________
George L. Russell, III
United States District Judge

41

A