MONSANTO COMPANY v. ARE-108 ALEXANDER ROAD, LLC

Filing 59

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/27/2013, that the Magistrate Judge's Recommendation (Doc. 52 ) is ADOPTED. FURTHER that Plaintiff's Motion for Summary Judgment (Doc. 20 ) is GRANTED an d that (1) judgment will be entered declaring that: (a) Plaintiff has no obligation to pay Base Rent during the two Term Extensions under the Lease; (b) Plaintiff is not in default for failing to pay such Base Rent; (c) Defendant is not entitled t o take any adverse action against Plaintiff for any failure to pay such Base Rent; and (d) Plaintiff is entitled to the return of all Base Rent, late fees, and interest paid under protest to Defendant; (2) judgment will be entered awarding monetar y damages for all amounts of Base Rent and related charges paid under protest by Plaintiff to Defendant in connection with the Lease, plus prejudgment interest on the amount of that award; and (3) judgment will be entered awarding Plaintiff its a ttorneys' fees and costs pursuant to Section 44(k) of the Lease as permitted by N.C. Gen. Stat. § 6-21.2(2). FURTHER that the parties shall submit briefs and any evidence in support of a fee award as more fully described herein on or before August 1, 2013, unless otherwise ordered by this court. No responsive briefs will be permitted unless otherwise ordered. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MONSANTO COMPANY,
Plaintiff,
v.
ARE-108 ALEXANDER ROAD, LLC,
Defendant.

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1:10CV898

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (ARecommendation@) filed on
March 25, 2013, by the Magistrate Judge in accordance with 28
U.S.C. § 636(b).

(Doc. 52.)

In the Recommendation, the

Magistrate Judge recommends that Plaintiff’s Motion for Summary
Judgment (Doc. 20) be granted and that (1) judgment be entered
declaring that: (a) Plaintiff has no obligation to pay Base Rent
during the two Term Extensions under the Lease; (b) Plaintiff is
not in default for failing to pay such Base Rent; (c) Defendant
is not entitled to take any adverse action against Plaintiff for
any failure to pay such Base Rent; and (d) Plaintiff is entitled
to the return of all Base Rent, late fees, and interest paid
under protest to Defendant; (2) judgment be entered awarding
monetary damages for all amounts of Base Rent and related

charges paid under protest by Plaintiff to Defendant in
connection with the Lease, plus prejudgment interest on the
amount of that award; and (3) judgment be entered awarding
Plaintiff its attorneys’ fees and costs pursuant to Section
44(k) of the Lease as permitted by N.C. Gen. Stat. § 6-21.2(2).
The Recommendation was served on the parties to this action on
March 25, 2013.

(Doc. 53.)

Counsel for Defendant filed timely

objections (Doc. 54) to the Recommendation and Counsel for
Plaintiff responded to Defendant’s objections (Doc. 55).
This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is made.@
28 U.S.C. ' 636(b)(1).

This court Amay accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.@

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objection was made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation.

This court therefore adopts the

Recommendation.
Based on this court’s adoption of the Magistrate Judge’s
Recommendation, Plaintiff is entitled to an award of attorneys’
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fees pursuant to Section 44(k) of the Lease as permitted by N.C.
Gen. Stat. § 6-21.2(2).

Neither party objected to this finding

by the Magistrate Judge.

However, before this court enters a

specific award of attorneys’ fees, the parties will be required
to address several issues related to N.C. Gen. Stat. § 6-21.2(2)
and its application to the instant case.

Those issues are as

follows:
1.

Whether that statute mandates an award of 15% of the

“outstanding balance” as attorneys’ fees or whether it merely
serves as a cap on such fees.

Compare Bombardier Capital, Inc.

v. Lake Hickory Watercraft, Inc., 178 N.C. App. 535, 632 S.E.2d
192 (2006) (finding that the trial court did not abuse its
discretion by awarding less than 15% of the award as attorneys’
fees), with Devereux Props., Inc. v. BBM & W, Inc., 114 N.C.
App. 621, 442 S.E.2d 555 (1994) (holding that the trial court
erred by awarding less than 15% of the outstanding balance as
attorneys’ fees) and RC Assocs. v. Regency Ventures, Inc., 111
N.C. App. 367, 373, 432 S.E.2d 394, 397 (1993) (“[S]ubdivision
(2) has predetermined that 15% is a reasonable amount in our
case.”).

The Recommendation left this issue unresolved.

(See

Doc. 52 at 11 n.5 (an award of attorneys’ fees would be
authorized “at least up to 15% of the outstanding balance”).)

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2.

The amount of the “outstanding balance” (see N.C. Gen.

Stat. § 6-21.2(2)) in this case, that is, whether the
outstanding balance is the amount of base rent and related
charges paid under protest by Plaintiff or some other amount.
The parties should file briefs addressing these issues with
citation to legal authority where appropriate.

The parties may

either file a joint brief for those matters upon which they
agree or, if more appropriate, file their own briefs in support
of their respective positions.

Plaintiff’s counsel should also

submit evidence, including an affidavit and/or billing
statement, in support of a fee award.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 52) is ADOPTED.

IT IS FURTHER ORDERED that

Plaintiff’s Motion for Summary Judgment (Doc. 20) is GRANTED and
that (1) judgment will be entered declaring that: (a) Plaintiff
has no obligation to pay Base Rent during the two Term
Extensions under the Lease; (b) Plaintiff is not in default for
failing to pay such Base Rent; (c) Defendant is not entitled to
take any adverse action against Plaintiff for any failure to pay
such Base Rent; and (d) Plaintiff is entitled to the return of
all Base Rent, late fees, and interest paid under protest to
Defendant; (2) judgment will be entered awarding monetary
damages for all amounts of Base Rent and related charges paid
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under protest by Plaintiff to Defendant in connection with the
Lease, plus prejudgment interest on the amount of that award;
and (3) judgment will be entered awarding Plaintiff its
attorneys’ fees and costs pursuant to Section 44(k) of the Lease
as permitted by N.C. Gen. Stat. § 6-21.2(2).
IT IS FURTHER ORDERED that the parties shall submit briefs
and any evidence in support of a fee award as more fully
described herein on or before August 1, 2013, unless otherwise
ordered by this court.

No responsive briefs will be permitted

unless otherwise ordered.
This the 27th day of June, 2013.

________________________________________
United States District Judge

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