Talkington et al v. Renzelli et al
Filing
78
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT SHIRLEY C. OLIVERIOS MOTION FOR SUMMARY JUDGMENT, GRANTING AS FRAMED PLAINTIFFS AND CROSS-CLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE CONTRACT CLAIMS PENDING AGAINST THE OLIVERIOS DEFEN DANTS AND AS TO THE PLAINTIFFS REQUEST FOR DECLARATORY RELIEF, DENYING DEFENDANTS MOTION FOR JURY TRIAL, SCHEDULING REASONABLENESS HEARING AS TO ATTORNEYS FEES AND BRIEFING REGARDING ATTORNEYS FEES, DIRECTING PARTIES TO MEET AND CONFER CO NCERNING THE AMOUNT OF TOTAL DAMAGES AND VACATING PRETRIAL CONFERENCE AND TRIAL. Defendant Shirley C. Oliverios motion for summary judgment (ECF No. 71 ) is GRANTED, plaintiffs and cross-claimants joint motion for partial summary judgment as to the contract claims pending against the Oliverios defendants, and as to the plaintiffs request for declaratory relief (ECF No. 64 ) is GRANTED AS FRAMED, and the defendants motion for jury trial (ECF No. 62 ) is DENIED. The pretria l conference that is scheduled on Monday, April 29, 2019 is hereby VACATED. The trial that is scheduled to commence on Tuesday, May 21, 2019 is also hereby VACATED. A Reasonableness hearing is set for 5/22/2019 03:00 PM in Wheeling District Judge Courtroom, South before Senior Judge Frederick P. Stamp Jr. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 4/24/19. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARLA ANN TALKINGTON
and LOUIS GARY DAVIS,
Plaintiffs,
v.
MICHAEL RENZELLI,
MARY LOU RENZELLI,
OLIVERIO’S CATERING, INC.
and SHIRLEY C. OLIVERIO,
in her capacity as a
personal guarantor of
Oliverio’s Catering, Inc.,
Civil Action No. 1:17CV172
(STAMP)
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT SHIRLEY C. OLIVERIO’S
MOTION FOR SUMMARY JUDGMENT,
GRANTING AS FRAMED PLAINTIFFS’ AND CROSS-CLAIMANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE
CONTRACT CLAIMS PENDING AGAINST THE OLIVERIO’S DEFENDANTS
AND AS TO THE PLAINTIFFS’ REQUEST FOR DECLARATORY RELIEF,
DENYING DEFENDANTS’ MOTION FOR JURY TRIAL,
SCHEDULING REASONABLENESS HEARING AS TO ATTORNEYS’ FEES
AND BRIEFING REGARDING ATTORNEYS’ FEES,
DIRECTING PARTIES TO MEET AND CONFER
CONCERNING THE AMOUNT OF TOTAL DAMAGES
AND VACATING PRETRIAL CONFERENCE AND TRIAL
I.
Background
The plaintiffs, Marla Ann Talkington and Louis Gary Davis
(“the plaintiffs”), filed an amended complaint in this Court
against the defendants, Michael Renzelli, Mary Lou Renzelli (“the
Renzelli defendants”), Oliverio’s Catering, Inc., and Shirley C.
Oliverio (“the Oliverio’s defendants”).
The plaintiffs seek to
require the partition by sale of parcels in Harrison County, West
Virginia, pursuant to West Virginia Code § 37-4-1, et seq.
The
plaintiffs seek to have the subject parcels sold at judicial sale
to the highest bidder by a Special Commissioner appointed by this
Court.
The plaintiffs collectively own 50% of the parcels and the
Renzelli defendants own the other 50% of the parcels, as tenants in
common with the plaintiffs.
The plaintiffs’ first cause of action
in their amended complaint is this action for partition.
The remaining causes of action relate to the Oliverio’s
defendants.
In
1996,
before
the
plaintiffs
acquired
their
interests in the subject parcels, Mary Roda Renzelli and Helen Roda
Davis entered into a lease agreement (“Lease Agreement”) with
Oliverio’s for one of the subject parcels.
In 2007, the parties
executed an amendment to the Lease Agreement (“Amendment”), that
dealt with changes to the subject property, specifically including
a portion of the building housing the restaurant which was formerly
occupied by Louis Roda and Mary Roda as their residence (see ECF
No. 70-2 at 1-4).
From 2006 through 2016, Oliverio’s failed to
make their rent payments in full, and substantial payments remain
outstanding.
contract.
breached
Plaintiffs’ second cause of action is for breach of
Specifically, plaintiffs allege that Oliverio’s has
the
Lease
Agreement
expenses, and interests.
by
failing
to
pay
rent,
fees,
The plaintiffs’ third cause of action is
for unjust enrichment, in which the plaintiffs allege that they are
entitled to recover a reasonable rental value from Oliverio’s, plus
interest and other expenses.
Plaintiffs’ fourth cause of action
seeks a declaratory judgment, declaring that Oliverio’s right of
2
first refusal contained within the lease agreement is invalid and
unenforceable, and that Oliverio’s materially and intentionally
breached the Lease Agreement.
A.
Defendant Shirley C. Oliverio’s Motion for Summary Judgment
On February 25, 2019, the defendant, Shirley Oliverio, filed
a motion for summary judgment.
ECF No. 72.
In support of her
motion, she contends that the Lease Agreement stated that she would
guarantee all obligations and duties under the Lease Agreement for
the initial term only.
Id. at 2.
She asserts that the 2007
Amendment to the Lease Agreement did not change the term of the
guaranty, and that there was no new consideration exchanged for any
additional term.
Id.
Moreover, defendant Shirley Oliverio claims
that there has never been any independent oral agreement to assume
a greater period beyond the initial term.
Id.
The plaintiffs and the Renzelli defendants filed a response to
defendant Shirley Oliverio’s motion for summary judgment.
No. 74.
ECF
In that response, the plaintiffs and cross-claimants
contend that the plain language of the Amendment to the Lease
Agreement is without restriction, and that the Amendment to the
Lease Agreement modified the underlying Lease Agreement and now
controls.
Id. at 3-6.
Defendant Shirley Oliverio did not file a reply.
B. Plaintiffs’ and Cross-Claimants’ Motion for Partial Summary
Judgment
On February 6, 2019, the plaintiffs and the cross-claimants,
the
Renzelli
defendants,
filed
3
a
motion
for
partial
summary
judgment.
ECF No. 64.
In support of their motion, they contend
that as a matter of law, they are entitled to their breach of
contract claims for back rent, expenses (e.g. tax payment), and to
attorneys’ fee/expense recovery based on the plain language of the
Lease Agreement, and the Amendment to the Lease Agreement. ECF No.
65 at 11-13.
The plaintiffs and cross-claimants further assert
that if the Court is to award them partial summary judgment,
Shirley Oliverio should be adjudged to be personally responsible
for
the
satisfaction
of
the
judgment
since
she
personally
guaranteed defendant Oliverio’s obligations and willingly assumed
personal liability.
Id. at 13-14.
Lastly, the movants contend
that they are entitled to summary judgment on their declaratory
judgment claim because “the record is clear that the Oliverio’s
defendants’ actions and omissions materially breached the Lease
Agreement, rending any purported right of first refusal in the
Lease Agreement void and unenforceable as [t]he right to exercise
this Right of First Refusal is condition[ed] upon the faithful
performance
required
to
of
all
be
the
covenants,
performed
by
it
conditions,
as
Lessee
Agreement[,]” citing Exhibit 4, Section 5.
and
under
agreements
this
Lease
Id. at 14 (internal
quotation marks omitted).
The Oliverio’s defendants then filed a response in opposition
to
plaintiffs’
and
summary judgment.
cross-claimants’
ECF No. 70.
joint
motion
for
partial
In their response, the Oliverio’s
defendants first argue that the movants’ calculation of the amount
4
of actual rent owed is not correct based upon oral agreements of
the parties and their course of conduct or dealing for the past 11
years prior to plaintiffs bringing this civil action.
Id. at 3-6.
Moreover, the Oliverio’s defendants assert that the monthly rental
basis for the calculations is incorrect even when considering the
rental leases since Michael Renzelli admitted under oath that
Oliverio’s never exercised any of the written options to renew and
that the lessors did not provide written consent; therefore, the
Oliverio’s defendants have been month-to-month tenants from the
expiration of the initial term of the lease.
Id. at 6-8.
Citing
the Lease Agreement, defendants state that under the circumstances,
the amount of rent owed is the amount of the immediately preceding
monthly installment of rent plus an increase of 20% over such
amount.
Id.
Second, the Oliverio’s defendants contend that
defendant Shirley Oliverio is not a guarantor for any obligation
sought in this civil action since Shirley Oliverio only guaranteed
all obligations under the lease for the initial term, and that
there was no amendment indicating that she would be a guarantor for
any other term. Id. at 9-10. Lastly, defendants assert that there
is no genuine issue of material fact as to taxes, since Michael
Renzelli previously stated that the Renzelli defendants would pay
half of the taxes.
Id. at 10.
Moreover, “[w]ith regard to the
interest alleged to be due and owing, that factor, [defendant
contends,] would be dependent upon a consideration of what amount
is due and owing; whether the terms of the interest requirements
5
under the lease are usurious or otherwise void or voidable under
the law; and whether any interest applies to any alleged oral
agreement beyond the statutory prejudgment interest rate for the
last five (5) years - as the claims for taxes beyond [five] years
prior the filing would be barred by the applicable statute of
limitations.”
Id.
Finally, the Oliverio’s defendants assert that
an award to plaintiffs for attorneys’ fees is not appropriate based
on principles of equity.
Id. at 10-11.
The plaintiffs and cross-claimants then filed a reply in
support of their motion for partial summary judgment.
ECF No. 73.
In their reply brief, they first address the issue of taxes,
interest and attorneys’ fees. They allege that: (1) the Oliverio’s
defendants previously admitted in this civil action that they were
to pay, as additional rent, taxes on Green Acres Restaurant
property; (2) prior to this civil action, the plaintiffs attempted
to
correspond
with
the
Oliverio’s
defendants
but
such
correspondence was returned to plaintiffs’ counsel; and (3) equity
would dictate an attorneys’ fee award to be appropriate.
2-3.
Id. at
The movants then assert that the Oliverio’s defendants’
argument that the Lease Agreement was orally modified is contrary
to the plain language of the Lease Agreement and the Amendment to
the Lease Agreement, specifically stating that the Amendment to the
Lease Agreement confirmed that the original Lease Agreement was in
full force and effect.
Id. at 3-5.
The movants then contend that
defendants’ argument that the Oliverio’s defendants have been
6
month-to-month tenants from the expiration of the initial term of
the lease is contrary to the plain language of the Lease Agreement,
the Amendment to the Lease Agreement, and case law.
Id. at 6.
Specifically, the movants assert that the Oliverio’s defendants
breached the Lease Agreement that placed an obligation on the
Oliverio’s defendants to provide written notice of renewals, but
that
such
a
breach
is
immaterial
since
the
Lease
Agreement
expressly contemplates and allows for waiver of conditions by
plaintiffs.
Id. at 8.
Moreover, the movants assert that case law
states that a breaching party cannot invoke a contractual provision
for their benefit, citing Jones v. Kessler, 98 W. Va. 1, 17 (1925).
Id.
The movants further state that the Oliverio’s defendants’
conduct
undercuts
the
proposition
that
Oliverio’s
was
a
month-to-month tenant since they made significant investments in
the property.
Id. at 8.
Lastly, the movants contend that based on
the plain language of the Amendment to the Lease Agreement, Shirley
Oliverio is jointly and personally responsible for the satisfaction
of the judgment.
C.
Id. at 9-10.
The Oliverio’s Defendants’ Motion for Jury Trial
On January 15, 2019, this Court held a status and scheduling
conference. At the conference, the Court inquired as to whether or
not the defendants have invoked their right to a trial by jury on
the breach of contract claim. Counsel for the parties at that time
were not certain as to whether or not a party had invoked such a
right.
Further, counsel for the plaintiffs indicated that they
7
intend to object to the Oliverio’s defendants’ request for a trial
by jury, if the defendants seek to do so.
established a briefing schedule:
Accordingly, this Court
Counsel for the defendants were
ordered to file a brief by January 29, 2019.
ECF No. 60 at 11.
Counsel for the plaintiffs were ordered to file a brief in response
by February 12, 2019.
Id. at 12.
The defendants were ordered to
file any reply by February 19, 2019.
Id.
On January 29, 2019, the defendants filed a motion for a jury
trial.
ECF No. 62.
In that motion, the defendants asserted that
there is no prejudice to the parties with respect to the motion,
and that courts have routinely allowed jury trials despite a lack
of a request in an original pleading.
Id. at 2.
On February 1, 2019, the plaintiffs filed a response in
opposition to defendants’ motion for a jury trial.
ECF No. 63.
In
their response, plaintiffs asserted that the defendants failed to
comply with Federal Rule of Civil Procedure 38, which sets forth
the
requirements
for
a
jury
demand,
and
that
in
defendants have waived their right to a jury trial.
doing
so,
Id. at 4.
Citing Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936,
940 (4th Cir. 1980), the plaintiffs stated that: (1) “the remaining
issue (the issue of damages) is ripe for determination by the Court
- given that the damage calculation in this matter is of a complex
nature, with substantial interests/penalty amounts associated with
the non-payment of contractually owed rent[;]” (2) “the parties
have justifiably relied on the assumption that this case would be
8
tried to the Court throughout motion practice and discovery - such
that
certain
parties
have
coordinated
their
trial
strategy
accordingly[;]” (3) the defendants’ motion “was filed approximately
fifteen
(15)
months
after
the
Complaint
was
filed
in
this
action[;]” and (4) defendants did not offer a meaningful rationale
for their failure to make a timely jury demand.
Id. at 4-5.
On February 18, 2019, the defendants filed a reply to the
plaintiffs’ response in opposition to defendants’ motion for a jury
trial.
ECF No. 69.
In the reply, the plaintiffs argue that: (1)
“the inclusion of the relief found in [Federal Rule of Civil
Procedure] 39 and the overriding judicial embrace of the sanctity
of jury trials weighs in favor of allowing a jury trial to proceed
on
factual
issues[;]”
(2)
the
plaintiffs
are
not
actually
prejudiced by the demand; and (3) defendants did not waive of their
defenses.
Id. at 1-3.
For the reasons set forth below, defendant Shirley Oliverio’s
motion for summary judgment (ECF No. 71) is granted, plaintiffs’
and cross-claimants’ joint motion for partial summary judgment as
to the contract claims pending against the Oliverio’s defendants,
and as to the plaintiffs’ request for declaratory relief (ECF
No. 64) is granted as framed, and defendants’ motion for jury trial
(ECF No. 62) is denied.
II.
Applicable Law
Under Federal Rule of Civil Procedure 56(c), summary judgment
is
appropriate
if
“the
pleadings,
9
depositions,
answers
to
interrogatories,
and
admissions
on
file,
together
with
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.”
The party seeking summary judgment bears the
initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992)(citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
However, as the United States Supreme Court noted in Anderson,
“Rule 56(e) itself provides that a party opposing a properly
supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256. “The inquiry performed is the threshold
inquiry of determining whether there is the need for a trial —
whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Id. at 250; see
also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979) (explaining that summary judgment “should be granted only in
those cases where it is perfectly clear that no issue of fact is
involved and inquiry into the facts is not desirable to clarify the
10
application of the law.” (citing Stevens v. Howard D. Johnson Co.,
181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
III.
A.
Discussion
Defendant Shirley C. Oliverio’s Motion for Summary Judgment
1.
Defendant Shirley C. Oliverio is not liable for any
obligations and duties under the Lease beyond the initial term
Plaintiffs do not dispute that the initial Lease Agreement
indicated that defendant Shirley Oliverio is a guarantor for all
obligations and duties under the Lease Agreement for the initial
term only and acknowledge that “[t]he plain language of the Lease
Agreement provides that the initial term of the lease ended at
midnight on December 31, 1998.”
ECF No. 74 at 3.
Plaintiffs argue
in their brief in opposition that summary judgment should not be
11
granted in favor of defendant Shirley Oliverio because: (1) “on
February
19,
2007,
Shirley
C.
Oliverio
personally
guaranteed
Oliverio’s Catering, Inc.’s obligations, and assumed personal
liability for this risk/exposure, when the executed Amendment to
Lease Agreement as an unconditional ‘GUARANTOR’[,]” and that (2)
Shirley Oliverio did not restrict or clarify her status as a
guarantor in her response to plaintiff’s requests for admission.
ECF No. 74 at 4-5.
Each argument is considered, and rejected,
below.
Although defendant Shirley Oliverio indicates that she is a
guarantor without qualification in the Amendment to the Lease
Agreement, there is no evidence suggesting that the Amendment to
the Lease Agreement amends the guaranty provision in the initial
Lease Agreement.
On the contrary, paragraph 5 of the Amendment to
the Lease Agreement specifically states: “Except as expressly
amended by this Amendment to the Lease Agreement, all of the terms
and provisions of the Lease Agreement shall continue in full force
and effect.”
ECF No. 70-2 at 4.
Moreover,
the
cases
the
plaintiffs
have
cited
in
their
response do not support the conclusion that defendant Shirley
Oliverio is liable past the initial term as set out in the initial
Lease Agreement. First, Esso Standard Oil Co. v. Kelly, 145 W. Va.
43, 47 (1960), does not help the plaintiffs because in that case it
was clear that the written instrument sued upon was an absolute
guaranty.
Unlike the circumstances presented in this case, in
12
Esso, the contract alleged and described an absolute guaranty of
payment by the defendant to the plaintiff of a designated and
liquidated amount.
Id. at 46.
If anything, Esso seems to support
the conclusion that defendant Shirley Oliverio is not personally
liable for any obligations or duties past the initial term set out
in the initial Lease Agreement since the case explains that the
intention of the guarantor governs.
Id. at 47.
Here, since the
Amendment to the Lease Agreement deals only with changes to subject
property, specifically including a portion of the building housing
the restaurant which was formerly occupied by Louis Roda and Mary
Roda as their residence (see ECF No. 70-2 at 1-4), it is unlikely
to assume that defendant Shirley Oliverio intended to guarantee any
duties and obligations past the initial term set forth in the Lease
Agreement simply because she stated she was a “guarantor” without
qualifying terms in the Amendment to the Lease Agreement and in her
response to plaintiffs’ requests for admission (ECF No. 73-1).
Further, Ives v. Williams, 143 Va. 855 (1925), does not seem
to support the conclusion that defendant Shirley Oliverio is liable
past the initial term as set out in the Lease Agreement.
In Ives,
the guaranty was held to be “unquestionably” an absolute guaranty.
Id. at 859.
The contract in that case provided for a certain,
definite, and specific act of performance to be had by the debtor,
and
the
performance
of
that
act
was
guaranteed
condition of any character being annexed to it.
13
Id.
without
any
Lastly, Looney v. Belcher, 169 Va. 160 (1937), does not seem
to support the conclusion that defendant Shirley Oliverio is liable
past the initial term as set out in the Lease Agreement.
Unlike
the circumstances presented in this case, in Looney an issue was
whether the guaranty was continuing in nature.
Id.
Here, the
issue is whether the Amendment to the Lease Agreement changed the
guaranty
anything,
provision
Looney
that
would
had
a
clear
support
the
time
limit.
conclusion
that
Again,
if
defendant
Shirley Oliverio is not liable for any duties and obligations past
the initial term set forth in the Lease Agreement since the court
in Looney explains that “[t]he true principle of sound ethics is to
give the contract the sense in which the person making the promise
believed the other party to have accepted it, in fact, did so
understand and accept it.”
Id. at 172.
Looney may support
defendant Shirley Oliverio for the same reasons Esso may support
defendant Shirley Oliverio.
For the reasons set forth above, the Court grants defendant
Shirley Oliverio’s motion for summary judgment (ECF Nos. 71 and 72)
with respect to defendant Shirley Oliverio’s liability past the
initial term of the Lease Agreement.
Accordingly, plaintiffs’ and
cross-claimants’ joint motion for partial summary judgment, with
respect to the issue of whether defendant Shirley Oliverio is a
guarantor past the initial term under the Lease Agreement, is
denied.
14
B.
Plaintiffs’ and Cross-Claimants’ Joint Motion for Partial
Summary Judgment
As indicated by defendants’ counsel, defendants concede that
they breached the Lease Agreement.1
Indeed, the parties agree as
to many of the underlying facts, although they disagree as to the
amount
of
damages
owed.
The
resolution
of
whether
or
not
plaintiffs and cross-claimants are entitled to judgment as to their
breach of contract claims for back rent and expense turns on the
legal interpretation of the Lease Agreement.
Because the Lease
Agreement is governed by West Virginia law, this Court will begin
with a brief review of West Virginia law regarding breach of
contract, as well as the provisions in the Lease Agreement that
govern the resolution of this dispute.
Under West Virginia law, to state a breach of contract claim,
a plaintiff must show: (1) existence of a valid enforceable
contract; (2) plaintiff performed under the contract; (3) defendant
breached or violated a duty under the contract; and (4) plaintiff
was injured by this breach.
Wince v. Easterbrooke Cellular Corp.,
681 F. Supp. 2d 688, 693 (N.D. W. Va. 2010); Bettinazzi v. State
Farm Fire and Cas. Co., C.A. No. 5:13CV166, 2014 WL 241694, at *2
(N.D. W. Va. Jan. 22, 2014).
1
Defendants’ counsel has previously stated, “it’s our position
that we did breach a contract and we’re just pretty much working on
figuring out how much we need to pay the plaintiffs. So we don’t
really have an argument for the breach of contract claim. We’re
just working on getting together with the plaintiffs and everyone
and trying to figure out what we need to do to settle it.” ECF No.
64-13 at 13.
15
In Fraley v. Family Dollar Stores of Marlinton, West Virginia,
Inc., the West Virginia Supreme Court of Appeals reviewed a
contract where the plaintiff landlord sought termination of rent
due and declared forfeiture of the supermarket’s lease.
With
respect to interpretation of the contract, the Court explained:
This Court has long held that a valid written agreement
using plain and unambiguous language is to be enforced
according to its plain intent and should not be
construed. The rule is set forth in Syllabus Point 1,
Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va.
484, 128 S.E.2d 626 (1962), which states:
A valid
written instrument which expresses the intent of the
parties in plain and unambiguous language is not subject
to judicial construction or interpretation but will be
applied and enforced according to such intent.
188 W. Va. 35, 37, 422 S.E.2d 512, 514 (1992).
See also Syl. Pt.
9, Arnold v. Palmer, 224 W. Va. 495, 497, 686 S.E.2d 725, 728
(2009) (“A valid written instrument which expresses the intent of
the parties in plain and unambiguous language is not subject to
judicial construction or interpretation but will be applied and
enforced according to such intent.”); Rollyson v. Jordan, 205 W.
Va. 368, 372, 518 S.E.2d 372, 376 (1999) (“Where parties contract
lawfully and their contract is free from ambiguity or doubt, their
agreement furnishes the law which governs them.”).
With
this
background,
this
Court
turns
to
consider
the
provisions of the Lease Agreement regarding defendants’ breach.
1. The Oliverio defendants’ “oral modification” argument is
contrary to the plain language of the Lease Agreement and the
Amendment to the Lease Agreement
First,
the
Oliverio’s
defendants
contend
that
the
Lease
Agreement’s terms that set forth the rent payments and expense
16
obligations were modified based upon the parties’ oral agreements
that occurred sometime in 2006 and their course of conduct for the
past 11 years prior to plaintiffs bringing this civil action.
It
is
or
true
that
a
prior
written
contract
may
be
supplemented by a subsequent valid oral contract.
modified
See Wycokoff v.
Painter, 145 W.Va. 310, 315, 115 S.E.2d 80 (1960).
Section
34(j)
modification
of
of
the
this
Lease
Agreement
Lease
shall
be
provides
binding
However,
that:
unless
modification shall be in writing and signed by the parties.”
“No
such
ECF
No. 64-4 at 38 (emphasis added). Moreover, Section 29 of the Lease
Agreement states:
No acceptance by Lessors of a lesser sum than the rents
and other charges then due shall be deemed to be other
than on account of the earliest of such stipulated rents
or charges, nor shall any endorsement or statement on any
check be deemed an accord and satisfaction, and Lessors
may accept such check or payment without prejudice to
Lessor’s right to recover the balance of such installment
or pursue any other remedy provided in the Lease or by
law.
ECF No. 64-4 at 34.
The evidence demonstrates that there were no oral agreements
after the Lease Agreement that were in writing and signed by the
parties.
the
Lease
Therefore, this Court finds that the plain language of
Agreement
controls,
and
that
there
modification of the terms of the Lease Agreement.
was
no
oral
This finding is
further bolstered by the fact that Section 5 of the Amendment to
the Lease Agreement, executed in 2007, after the alleged oral
modification,
states:
“Except
as
17
expressly
amended
by
this
Amendment to the Lease Agreement, all of the terms and provisions
of the Lease Agreement shall continue in full force and effect.”
Therefore, the Amendment to the Lease Agreement did not change the
rental payments and expense obligations set out in the initial
Lease Agreement.
2. Oliverio’s is a holdover tenant and did not renew based
upon the plain language of the Lease Agreement and West Virginia
case law
Defendants also insist that even if the Court determines that
no oral agreement was formed subsequent to the Lease Agreement, the
monthly rental basis for the calculations are incorrect even when
considering the written Leases, since the Oliverio’s defendants did
not exercise a right to renew.
ECF No. 70 at 8.
The Lease Agreement on which the rights of the parties depend
states:
(e) Notice of Exercise of Optional Renewal Terms: The
aforesaid options to renew the Lease term must be
exercised by the Lessee by giving written notice to the
Lessors of its desire to exercise the same at least six
(6) months prior to the expiration of the then current
lease term.
ECF No. 64-4 at 3.
Moreover, the Lease Agreement states:
4.
HOLDOVER BY LESSEE: If Lessee remains in possession
of the Leased Premises or any part thereof after the
expiration of the Initial Term or any renewal term of
this Lease without the expressed written consent of the
Lessors, such occupancy shall be a tenancy from month-tomonth at a rental in the amount of the immediately
preceding monthly installment of rent plus an increase of
twenty-percent (20%) over such amount, and upon all the
terms hereof applicable to a month-to-month tenancy.
This provision for a holdover rent payment shall in no
way be construed as a waiver of the Lessor’s rights to
evict the Lessee from the Leased Premises.
18
Id. at 6-7 (emphasis added).
The parties do not dispute that the Oliverio’s defendants
never exercised this right to renew by providing written notice to
the plaintiffs.
Moreover, there is no dispute that the plaintiffs
did not provide written consent accepting the Oliverio’s defendants
renewal.
The movants’ position is that “the [d]efendants’ acts and
actual possession of the leased premises, and payment towards funds
owed
to
the
[p]laintiffs,
automatically
triggers
the
renewal
clauses/terms set forth in te Lease Agreement - as does the
Oliverio [d]efendants[’] affirmation of the renewal terms via
execution of the 2007 Amendment to the Lease Agreement.”
73 at 7.
ECF No.
The movants then cite various case law that they argue
supports the contention that the Oliverio’s defendants renewed
under the lease and that the Oliverio’s defendants are not monthto-month tenants. Id. at 7-8. Lastly, the movants assert that the
Oliverio’s defendants breached the Lease Agreement that placed an
obligation on the Oliverio’s defendants to provide written notice
of renewals, but that such a breach is immaterial since the Lease
Agreement
expressly
contemplates
and
allows
for
waiver
of
conditions by plaintiffs.
The
Oliverio’s
defendants
assert
that
they
are
holdover
tenants from the expiration of the Initial Term of the Lease since
no option to renew was ever exercised.
19
ECF No. 70 at 8.
This Court is, therefore, left with the question of law: did
Oliverio’s
holding
over,
paying
rent,
and
investing
in
the
property, without written notice of a desire to renew, operate as
a renewal of the Lease under the applicable renewal period?
The decisions on this question are conflicting.
However, the
West Virginia Supreme Court of Appeals has held in Whalen v.
Manley, 68 W. Va. 328, 69 S.E. 843, 844 (1910), that:
[S]imply holding over after the expiration of a lease
containing a bare covenant to renew, and paying rent
according to the terms of the old lease, does not amount
to an election to renew, but constitutes the tenant, a
tenant from month to month or year to year, depending on
the terms of the lease as to rent or rental periods.
This view is consonant with the general rule that holding
over after the expiration of a term of years, or a
monthly term, and paying rent according to the terms of
the lease, constitutes the tenant a tenant from year to
year or month to month as the case may be.
The Supreme Court of Appeals of West Virginia has explained that,
“[w]hen the covenant is to renew it is generally regarded that the
lease indicates the intention of the parties to execute a new
lease, and as requiring of the lessee notice to the lessor at or
before the expiration of the lease of his election to renew.”
Whalen, 69 S.E. at 844.
Nach v. Mendrell, 110 W. Va. 139, 157 S.E.
179 (1931), may also be instructive here.
In that case, the
landlord sought to recover rent under a one-year lease that
contained the following covenant: “And it is further agreed by the
parties hereto that should the said party of the second part comply
with each and every provision herein contained on his part to be
complied with, then he shall have the right and option to a further
20
lease at the expiration of this lease for the further term of Four
(4) years, upon the same conditions and for the same rental for
which this lease is given.”
Id.
In that case, the lessee remained
in possession for 22 months after expiration of the lease with no
written notice.
Id.
The landlord then sought to recover the rent
for four years.
Id.
The Supreme Court of Appeals of West Virginia
first explained that, generally, “in construing provisions in a
lease where there is uncertainty, the tenant is favored.”
180.
Id. at
The Court then held that “the covenant created a right to a
renewal, and contemplated the making of a new lease at the end of
the first year.”
Id.
Ultimately, the Court found, citing Whalen,
that the fact that the lessee held over past the expiration of the
lease and paid rent according to the terms of the old lease does
not amount to an election to renew.
Id.
Reason, as well as the weight of judicial authority, justifies
this Court in holding that the Oliverio’s defendants did not elect
to renew, but are holdover tenants since the initial term period
ended. Specifically, the movants’ arguments pertaining to the
waiver provision in the Lease Agreement are based on characterizing
the Oliverio’s defendants failure to exercise their right to renew
as a breach of a covenant within the Lease Agreement.2
However,
2
The movants specifically cite the following provisions in the
Lease Agreement (see ECF No. 73 at 6-7):
The aforesaid options to renew the Lease term must be
exercised by the Lessee giving written notice to the
Lessors of its desire to exercise the same at least six
21
the movants fail to adequately explain how the waiver provision
operates in conjunction with the holdover provision which expressly
addresses the situation at hand - where the lessee remains in
possession of the leased premises past the initial term without
written consent.
Based on a plain reading of the Lease Agreement,
this Court finds that the holdover provision applies here.
The
Oliverio’s defendants failed to exercise a right to renew and
Oliverio’s held over past the initial term.
contrary
would
cause
the
holdover
provision
superfluous and the provision meaningless.
A holding to the
to
be
rendered
Therefore, Oliverio’s
is a month-to-month tenant and owes “rental in the amount of the
immediately preceding monthly installment of rent plus an increase
of twenty percent (20%) over such amount, and upon all the terms
hereof applicable to a month-to-month tenancy.” ECF No. 64-4 at 7.
The other cases the movants cite in their reply brief (ECF No. 73
at 7-8) may be distinguished from the facts at hand.
(6) months prior to the expiration of the current lease
term.
ECF No. 70-1 at 4.
Section 28. Waiver. One or more waivers of any covenant
or condition by Lessors shall not be construed as a
waiver of a subsequent breach of the same or any other
covenant or condition, and the consent or approval by
Lessors to or of any act by Lessee requiring Lessors’
consent or approval shall not be construed to waive or
render unnecessary Lessors’ consent or approval to or of
any subsequent similar act by Lessee.
ECF No. 70-1 at 33.
22
This judgment renders it unnecessary to respond to any other
questions argued in the briefs.
The parties are ORDERED to meet and confer as to damages,
consistent with this Court’s finding that Oliverio’s is a holdover
tenant, and that the holdover provision (specifically, see Section
4 of the Lease Agreement) applies.
The parties are ORDERED to
consider whether other clauses in the Lease Agreement apply,
including,
but
not
limited
to
the
provision
penalties (see Section 3 of the Lease Agreement).
addressing
late
If the parties
do not come to an agreement as to the amount of damages due, the
parties are ORDERED to submit simultaneous briefing on such issues
ten
(10)
agreement.
days
after
the
parties
have
attempted
to
come
to
The Court may decide the issue based on the memoranda
submitted to this Court, or may schedule an evidentiary hearing
pertaining to such issues.
3. Plaintiffs and cross-claimants are entitled to taxes,
interest, and attorneys’ fees
a.
Taxes and interest
Section 6 sets out the Oliverio defendants’ obligations for
taxes and other assessments.
Section 6 provides, in pertinent
part, as follows:
(a) Commencing with the taxable year 1996, with all
taxes to be calculated on a calendar year basis, Lessee
shall pay as additional rent for the Leased Premises, all
taxes and assessments, general and special, utility rates
and all other impositions, ordinary and extraordinary, of
every kind and nature whatsoever, which may be levied,
assessed or imposed upon the Leased Premises or any part
thereof, or upon any improvements at any time situated
23
thereon, accruing or becoming due and payable during the
term of this Lease . . .
(b) Lessee shall make direct payment to the taxing
authorities and shall deliver to Lessors duplicate
receipts or photostatic copies thereof showing the
payment of all said taxes, assessments, and other
impositions within thirty (30) days after the respective
payments evidenced thereby. Lessors shall, at Lessors’
option, have the right to pay any such tazes,
assessments, or other charges or impositions not paid by
Lessee, and the amounts so paid, including reasonable
expenses, shall be so much additional rent due on the
first day of the month after any such payments, with
interest at the rate of one and one-half percent (1-1/2%)
per month, or the highest rate permitted by law, from the
date of Lessors’ payment thereof to the date of
reimbursement by Lessee.
ECF No. 64-4 at 8-9.
Moreover, the Amendment to the Lease
Agreement states:
2.
Section 6 of the Lease Agreement, entitled “Taxes
and Other Assessments,” in subsection (a) thereof, is
hereby amended to delete the following sentence:
The parties hereto understand and agree that
the residential unit now occupied by Mary Roda
and Louis Roda in the building housing the
Restaurant is separately assessed for real
estate tax purposes, and Lessee shall not be
required to pay the real estate taxes levied
thereon.
3.
As
consideration
for
the
inclusion
of the
residential portion of the building housing the
Restaurant which was formerly occupied by Louis Roda and
Mary Roda as their residence within the definition of
‘Leased Premises’, the Lessee agrees to pay, as
additional rent for the Leased Premises, the real estate
taxes assessed upon the aforesaid residential unit as
said real estate taxes become due and payable during the
term of the Lease Agreement. The payment of said real
estate taxes shall be governed by Section 6 of the Lease
Agreement. The obligation of the Lessee to pay said real
estate taxes upon said residential unit shall commence
with the taxes for the calendar year 2007 . . .
24
This Court finds that the Oliverio’s defendants breached the
contract with respect to paying taxes on the leased property.
The
Oliverio’s defendants admit that they were to pay taxes in their
responses to requests for admission.
ECF No. 73-1 at 5.
However, since the record demonstrates that a portion of the
taxes may have been paid and as defendants correctly noted there
are numerous factors in determining the interest due and owing (see
ECF No. 73 at 10), the parties are ORDERED to meet and confer as
those amounts.
If the parties do not come to an agreement as to
the amount due, the parties are ORDERED to submit simultaneous
briefing on such issues ten (10) days after the parties have
attempted to come to agreement.
The Court may decide the issue
based on the memoranda submitted to this Court, or may schedule an
evidentiary hearing pertaining to such issues.
b.
Attorneys’ Fees
Finally, the movants also seek to recover attorneys’ fees
incurred in pursuing the Oliverio’s defendants’ obligations under
the contract, including the costs of this litigation.
The movants
assert that they are entitled to attorneys’ fees and costs under
the language in the Lease Agreement that states:
In addition to any other remedies Lessors may have at law
or equity and/or under this Lease, Lessee shall pay upon
demand all Lessors’ cost, charges and expenses, including
fees of counsel, agents and others retained by Lessors,
incurred in connection with the recovery of sums due
under this Lease, or because of the breach of any
covenant under this Lease or for any other relief against
Lessee.
In the event Lessee shall bring any action
against Lessors for relief hereunder and Lessors shall
25
prevail, Lessee shall pay Lessors’ reasonable attorneys’
fees and all other court costs.
ECF No. 64-4 at 27-28.
The Oliverio’s defendants dispute that
movants are entitled to attorneys’ fees under the Lease Agreement.
Under West Virginia law, generally, “each litigant bears his
or her own attorney’s fees absent a contrary rule of court or
express statutory or contractual authority for reimbursement.”
Sally-Mike Prop. v. Yokum, 179 W. Va. 48, 365 S.E.2d 246, 248 (W.
Va. 1986).
In Moore v. Johnson Service Co., 158 W. Va. 808, 820,
219 S.E.2d 315, 323 (W. Va. 1975), the Supreme Court of Appeals of
West Virginia ruled that where a lease agreement contained a clause
that allowed reasonable attorneys’ fees in the event that either
party successfully enforced an action for breach of provisions of
the lease, the party bringing the action is entitled to recover for
reasonable attorneys’ fees upon judgment by the trial court that
there was a breach of the lease agreement.
In Moore, the lease
provided that “the successful party in an action to enforce the
lease or to recover for a breach of the lease should recover from
the unsuccessful party, in addition to other appropriate relief,
the
reasonable
judgment.”
expense
and
attorneys’
fees
as
part
of
the
Id. at 818 (internal quotation marks omitted).
The language at issue specifically provided for the payment of
fees and costs associated with claims and litigation.
language is explicit.
This
The provision cited by the movants states
that “[i]n the event Lessee shall bring any action against Lessors
for relief hereunder and Lessee shall prevail, Lessee shall pay
26
Lessors’ reasonable attorneys’ fees and all court costs.” Although
the Oliverio’s defendants argue that the movants are not entitled
to attorneys’ fees because there was never any demand prior to suit
and the Lease Agreement states that “Lessee shall pay upon demand
all Lessor’s costs, expenses, including fees of counsel, etc.[,]”
the Lease Agreement never specified that such a demand must occur
prior to initiation of a lawsuit. Rather, reading the provision as
a whole, in its plain terms, the Lease Agreement seems to have
contemplated that such fees and costs would be awarded if a demand
was even made in a lawsuit, after a court found that the lessees
breached a contract within the Lease Agreement.
This Court concludes that the Lease Agreement between the
movants and the Oliverio’s defendants unambiguously provides for
the
recovery
of
attorneys’
fees
and
costs.
Accordingly,
a
reasonableness hearing shall be held, consistent with the factors
set forth in Aetna Cas. & Surety Co. v. Pitrolo3 on May 22, 2019 at
3:00 p.m. in the South Courtroom, Second Floor, Federal Building,
1125 Chapline Street, Wheeling, West Virginia 26003.
The parties shall file their briefs regarding the amount of
attorneys’ fees owed, simultaneously, on May 6, 2019.
4.
Plaintiffs are entitled to summary judgment on their
declaratory judgment claim
Lastly,
movants
seek
declaratory judgment claim.
summary
judgment
on
plaintiffs’
This claim seeks a declaration “that
3
176 W. Va. 190, 196, 342 S.E.2d 156, 162 (1986).
27
Oliverio’s right of first refusal is void due to its material and
intentional breaches of the Lease Agreement.”
ECF No. 17 at 12.
“District courts possess discretion in determining whether and
when to entertain an action under the Declaratory Judgment Act,
even
when
the
jurisdictional
suit
otherwise
prerequisites.”
satisfies
A.Hak
Indus.
subject
matter
Services
BV
v.
TechCorr USA, LLC, C.A. No. 3:11-CV-74, 2014 WL 7243191, *27 (N.D.
W. Va. Dec. 19, 2014) (citing Wilton v. Seven Falls Co., 515 U.S.
277, 282, 115 S. Ct. 2137, 132 L.Ed.2d 214 (1995)).
With respect
to declaratory judgment actions, “the normal principle that federal
courts should adjudicate claims within their jurisdiction yields to
considerations of practicality and wise judicial administration.”
Id. (citing Wilton, 515 U.S. at 288).
The United States Court of Appeals for the Fourth Circuit has
held that a district court may exercise its discretion and decline
to
entertain
jurisdiction
with
“good
reason.”
Volvo
Const.
Equipment North America, Inc. v. CLM Equipment Company, Inc., 386
F.3d 581, 594 (4th Cir. 2004). “The two principle criteria guiding
the policy in favor of rending declaratory judgments are (1) when
the judgment will serve a useful purpose in clarifying and settling
the legal relations in issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity, and controversy
giving rise to the proceeding.”
Aetna Cas. & Sur. Co. v. Quarles,
92 F.2d 321, 325 (4th Cir. 1937) (citing Borchard, Declaratory
Judgments 107-109).
28
“Moreover, it is proper to dismiss a declaratory claim that
is duplicative in that it seeks no relief that is not implictly
sought in the other causes of action.” A.Hak Indus. Services BV v.
TechCorr USA, LLC, C.A. No. 3:11-CV-74, 2014 WL 7243191, *27 (N.D.
W. Va. Dec. 19, 2014) (citing Sofi Classic S.A. de C.V. v.
Hurowitz, 444 F. Supp. 2d 231, 249 (S.D. N.Y. 2006).
“[A]
declaratory judgment serves no useful purpose when it seeks only to
adjudicate an already-existing breach of contract claim.”
Id.
(citing Metra Industries, Inc. v. Rivanna Water & Sewer Authority,
C.A. No. 3:12CV00049, 2014 WL 652253, *2 (W.D. Va. 2014) (internal
quotation marks omitted).
It is correctly noted in the movants’ reply to the Oliverio’s
defendants’ response in opposition to the motion to partially
dismiss
(ECF
No.
73),
that
the
issue
as
to
the
Oliverio’s
defendants’ right of first refusal is uncontested by the Oliverio’s
defendants.
ECF No. 73 at 10.
This Court grants summary judgment
in movants’ favor on the declaratory judgment claim.
declaring
the
right
of
first
of
first
refusal
However,
invalid
or
unenforceable does not imply that this Court finds that the
provision
is
unconscionable,
unenforceable on its face.
inequitable,
or
otherwise
Specifically, the Court does not find
that the right of first refusal is unconscionable, inequitable, or
unlawful.
This Court merely holds that under the facts presented
in this case, the lessees have failed to exercise their right of
29
first refusal in accordance to Section 5 of the Lease Agreement.
See ECF No. 64-4 at 7-8.
C. The Oliverio’s defendants’ are not entitled to a jury trial on
the issue of damages
The
Federal
Rules
of
Civil
Procedure
set
forth
the
requirements for a jury demand in federal court. Rule 38 states in
pertinent part:
(b) Demand. On any issue triable of right by a jury, a
party may demand a jury trial by:
(1) serving the other parties with a written
demand - which may be included in a pleading no later than 14 days after the last pleading
directed to the issue is served;
(2) filing the demand in accordance with Rule
5(d).
. . .
(d) Waiver; Withdrawal.
A party waives a jury trial
unless its demand is properly served and filed. A proper
demand may be withdrawn only if the parties consent.
Fed. R. Civ. P. 38(b), (d).
Rule 39(b) further states that “[i]ssues on which a jury trial
is not properly demanded are to be tried by the court.
But the
court, on motion, order a jury trial on any issue for which a jury
might have been demanded.”
Fed. R. Civ. P. 39(b).
Resolution of a Rule 39(b) motion is “committed to the
discretion of the trial court.”
Malbon v. Pennsylvania Millers
Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir. 1980).
In deciding
whether to grant a Rule 39(b) motion, courts may be guided by the
following four factors:
30
(1) whether the issues are more appropriate for
determination by a jury or a judge (i.e. factual versus
legal, legal versus equitable, simple versus complex);
(2) any prejudice that granting a jury trial would cause
the opposing party; (3) the timing of the motion (early
or late in the proceedings); and (4) any effect a jury
trial would have on the court’s docket and the orderly
administration of justice.
Id. at 940 n.11 (internal quotation marks omitted).
A number of courts have also considered a fifth factor - the
reason for the failure to make a timely jury demand.
Bexar
County
Bd.
of
Trustees
for
Mental
See Farias v.
Health
Retardation
Services, 925 F.2d 866, 873 (5th Cir. 1991), cert denied, 502 U.S.
866 (1991); Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1012-13
(6th Cir. 1987); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.
1976).
The Supreme Court of the United States has also noted, in
dicta, that a district court’s discretion generally is guided by
“the justifiability of the tardy litigant’s delay and the absence
of prejudice to his adversary.” Pierce v. Underwood, 487 U.S. 552,
562 (1988).
In support of their motion to confirm a non-jury trial, the
plaintiffs argue that the defendants did not make a proper jury
demand pursuant to Rule 38(b).
In response, the defendants, among
other things, point to “inclusion of the relief found in [Federal
Rule of Civil Procedure] 39.”
ECF No. 69 at 2.
Specifically, the
defendants cite to the language in Rule 39(b) that states that “the
court may, on motion, order a jury trial on any issue for which a
jury trial may be demanded.”
ECF No. 62-1 at 2.
Moreover,
according to the defendants, the plaintiffs are not actually
31
prejudiced by the demand and the defendants did not waive their
defenses.
ECF No. 69 at 1-3.
Applying
the
Malbon
factors
to
this
action,
this
Court
concludes that the defendants’ motion for a jury trial must be
denied.
As to the first factor, whether the issues are more
appropriately determined by a jury, this Court observes that to
determine the amount of damages the movants are entitled to, the
factfinder will be required to consider various documents and legal
briefs to come to a correct calculation, determining various
potential legal questions along with the factual circumstances.
The factfinder must also analyze the documents and deduct amounts
that have allegedly been paid prior to or during initiation of this
civil action.
Because the parties have indicated that their
understanding of the amounts owed in connection with this civil
action are opposed, this Court finds that issues of damages in this
civil action are sufficiently complex to probably warrant a nonjury trial.
The Court believes that it is better suited, rather
than a jury, to ultimately construe the relevant provisions in the
Lease Agreement and the Amendment to the Lease Agreement, and
calculate damages based on those provisions.
Therefore, this
factor weighs against granting the motion.
The second factor, whether the plaintiff will be prejudiced by
granting a jury trial, also counsels against granting the motion.
This Court finds that the plaintiffs have justifiably relied on the
assumption that the case would be tried to the Court throughout the
32
motion
practice
and
discovery,
and
that
the
plaintiffs
prepared and coordinated trial strategy accordingly.
have
Therefore,
this factor weighs against granting the motion.
The third factor identified by Malbon is the timing of the
motion for a jury trial.
Here, the motion was made very late in
the proceedings, after realizing a jury demand was never made at a
status and scheduling conference held in January 15, 2019.
The
defendants never submitted a supplemental filing prior to their
motion for a jury trial, indicating that they sought a trial by
jury.
Therefore, this factor weighs against granting the motion.
Under the fourth factor of the Malbon analysis, this Court
finds that there would be little, if any, effect that a jury trial
would have on this Court’s docket and the orderly administration of
justice. This factor, therefore, does not appear to weigh in favor
of or against granting the motion.
Considering the additional factor which other courts have
considered, the reason for the failure to make a timely jury
demand, this Court notes that defendants candidly indicate that
“the only explanation the undersigned can present is human error.”
ECF No. 62-1 at 4.
The reason for the defendants’ long delay in
requesting a jury trial does not appear to this Court to justify
granting a jury trial at this late stage of the proceedings.
Because
three
of
the
four
Malbon
factors
weigh
against
granting the motion for a jury trial, and the fourth factor is
neutral, and because the defendants have not offered a persuasive
33
reason justifying the long delay in their request for a jury trial,
this Court concludes that the defendants’ motion for a jury trial
must be denied. Central to this issue, this Court believes that at
this stage in the litigation, the Court will more efficiently
construe the relevant provisions in the Lease Agreement and the
Amendment to the Lease Agreement, and to calculate damages in
accordance with such provisions.
IV.
For
the
reasons
set
Conclusion
forth
above,
defendant
Shirley
C.
Oliverio’s motion for summary judgment (ECF No. 71) is GRANTED,
plaintiffs’ and cross-claimants’ joint motion for partial summary
judgment as to the contract claims pending against the Oliverio’s
defendants, and as to the plaintiffs’ request for declaratory
relief (ECF No. 64) is GRANTED AS FRAMED, and the defendants’
motion for jury trial (ECF No. 62) is DENIED.
Moreover, as previously stated, a reasonableness hearing shall
be held, consistent with Aetna Cas. & Surety Co. v. Pitrolo, on
May 22, 2019 at 3:00 p.m. in the South Courtroom, Second Floor,
Federal Building, 1125 Chapline Street, Wheeling, West Virginia
26003.
The
parties
shall
file
briefs
regarding
the
amount
of
attorneys’ fees owed by May 6, 2019.
Further, and as also mentioned above, the parties are ORDERED
to meet and confer as to total damages, including taxes and
interest, consistent with this Court’s finding that Oliverio’s is
34
a holdover tenant, and that the holdover provision (specifically,
see Section 4 of the Lease Agreement) applies.
The parties are
ORDERED to consider whether other clauses in the Lease Agreement
apply, including, but not limited to the provision addressing late
penalties (see Section 3 of the Lease Agreement).
If the parties
do not come to an agreement as to the amount of total damages due,
the parties are ORDERED to submit simultaneous briefing on such
issues ten (10) days after the parties have attempted to come to
agreement.
The Court may decide the issue based on the memoranda
submitted to this Court, or may schedule an evidentiary hearing
pertaining to such issues.
Lastly, the pretrial conference that is scheduled on Monday,
April 29, 2019 is hereby VACATED.
The trial that is scheduled to
commence on Tuesday, May 21, 2019 is also hereby VACATED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
April 24, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
35
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