“On appeal, an order allowing summary judgment is reviewed de novo.” Howerton v. And, “n determining the grounds for summary judgment, the trial court must view the evidence in the light most favorable to the non-movant.” Vares v. “Summary judgment is improper if any material fact is subject to dispute.” Thompson v. ![]() Summary judgment when sought “shall be rendered forthwith if the pleadings, 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 any party is entitled to a judgment as a matter of law.” N.C. Landlord first questions whether a genuine issue of material fact exists as to the meaning of the phrase “enant shall have no obligation to pay any rent.” Landlord argues the phrase is ambiguous and thus is a question for a trier of fact. Landlord argues there are genuine issues of material fact as to (I) whether the parties intended for section 51 to provide tenant with rent abatement and (II) whether rent abatement is a valid liquidated damages provision or an unenforceable penalty. On appeal, landlord questions whether the trial court's grant of summary judgment was proper. ![]() The trial court granted tenant's motion for summary judgment, dismissed landlord's complaint, and determined that tenant's counterclaim was moot. On 2 July 2007, tenant filed a motion for summary judgment, and on 2 August 2007, the trial court entered an order for summary judgment wherein it found that there existed no genuine issue of material fact and concluded that tenant was entitled to judgment as a matter of law. Tenant answered the complaint and counterclaimed that tenant was entitled to recover actual and consequential damages for landlord's breach of contract. On, landlord filed a complaint seeking both a declaratory judgment with regard to whether the provision in the lease agreement in which tenant had “no obligation to pay any Rent” was an unenforceable penalty and a damage award for tenant's breach of contract. Landlord argued the unpaid rent was due because section 51 of the lease agreement was unenforceable. But, landlord also demanded the rent tenant withheld since 13 April 2005. On 28 January 2006, landlord opened 15,000 square feet of adjacent retail space for business, and tenant resumed making rent payments. Pursuant to the terms of the lease agreement, tenant ceased paying rent. Thus, tenant initiated the 240 day window during which landlord must have opened for business 15,000 square feet of adjacent retail space or “enant shall have no obligation to pay any Rent.” On 13 April 2005, the 240 day window closed, but landlord had yet to open 15,000 square feet of adjacent retail space for business. On 16 August 2004, as evidence of the “Landlord Construction Date,” tenant provided landlord written notice of access to adjacent retail space to commence construction. ![]() The “Landlord Construction Date” referenced in this provision is defined as “the date upon which Tenant ․ provide Landlord access to the Adjacent Retail Space sufficient to commence construction activities (as evidenced by written notice from Tenant to Landlord ․).” (ii) in the event at least fifteen thousand (15,000) square feet of the Adjacent Retail Space is not open for business within 240 days after the Landlord Construction Date, Tenant shall have no obligation to pay any Rent hereunder after the expiration period of said 240 day period until such time as at least 15,000 square feet of the Adjacent Retail Space is open for business. However, section fifty-one of the lease agreement provided “enant shall have no obligation to pay any Rent” until several provisions are met. In December 2003, landlord and tenant entered into a lease agreement wherein tenant agreed to rent a portion of the landlord's shopping center in order to operate a movie theatre. Plaintiff Majestic Cinema Holdings, LLC, (landlord) appeals from a Guilford County Superior Court order granting defendant High Point Cinema, LLC, (tenant) summary judgment, dismissing landlord's complaint, and determining that tenant's counterclaim against landlord was moot. Capitano, Charlotte, for defendant-appellee. Kennedy, Covington, Lobdell & Hickman, by John H. Ryan, Winston-Salem, for plaintiff-appellant. ![]() Decided: June 17, 2008Ĭraige Brawley Liipfert & Walker, LLP, by Susan J. HIGH POINT CINEMA, LLC, d/b/a Consolidated Theatres, Defendant. MAJESTIC CINEMA HOLDINGS, LLC, Plaintiff, v.
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