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DMP Limited Partnership v. Caribou Coffee Company

August 26, 2009

DMP LIMITED PARTNERSHIP, PLAINTIFF,
v.
CARIBOU COFFEE COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge

Magistrate Judge Bissoon*fn1

MEMORANDUM AND ORDER

I. MEMORANDUM

For the reasons that follow, Defendant's Motion for Summary Judgment (Doc. 25) will be denied.

The facts in this case are well known to the parties, and, given that the Court writes only for them, a detailed background section will not be presented.

In moving for summary judgment, Defendant argues that it owes no rent because the preconditions to payment, in Section 5(A)(i) of the parties' Lease agreement, were not met. See Def.'s Br. (Doc. 27) at 5-7. In relevant part, Section 5(A)(i) reads:

Tenant's [i.e., Defendant's] obligation to pay Minimum Monthly Rental shall commence on the date which is the earlier of[:]

(x) . . . seventy-five (75) days after the date that the City of Pittsburgh issues the building permit for the Tenant's Work, . . . which Tenant's Work Plans are set forth generally on Exhibits A-2-l and A-2-2 . . . [and] further described on Exhibit C . . ., provided, however, that Tenant shall promptly after the execution of this Lease diligently proceed to prosecute to completion the Tenant's Demolition Work, that is part of its Tenant's Work Plans[,] and shall thereafter prepare plans and specifications for the build-out of the Tenant's Space Plans for the Premises that is part of its Tenant's Work, which time period for preparation of such specifications and plans shall not exceed six (6) weeks following the substantial completion of the Tenant's Demolition Work ("Six Week Period"), or (y) if Tenant shall fail to diligently proceed to prosecute to completion its Demolition Work or if Tenant shall fail to apply for its City Building Permit on or before the end of the Six Week Period, then . . . seventy-five (75) days after the date of the execution of this Lease . . ., or (z) the date Tenant opens for business in the Premises . . . .

Lease Agreement (filed under Doc. 28-2) at §§ 5(A)(i)(x)-(z).

The Lease was executed on February 10, 2005; Defendant submitted its plans and specifications to Plaintiff on June 15, 2005; and Defendant filed its permit application on June 22, 2005. See Def.'s Br. at 3, 7 (citing record evidence).

Defendant argues that the conditions of sub-Section (x) were not satisfied because, despite Defendant's having "[taken] the actions required of it," the City "did not grant [its] application for a building permit." See id. at 2. Relatedly, Defendant asserts that its plans, specifications, and permit application were timely because its "Demolition Work" included asbestos abatement completed on August 8, 2005. Id. at 7; see also id. (Defendant submitted plans and specifications on June 15, 2005, prior to commencement of Lease's "Six Week Period").

Plaintiff asserts that Defendant's Demolition Work did not include asbestos abatement, and it was completed on April 15, 2005. See Pl.'s Opp'n Br. (Doc. 31) at 5 (citing record evidence). Defendant did not submit its permit application until 68 days later, on June 22, 2005. See id. According to Plaintiff, sub-Section (y) controls, and Defendant's failure to apply for a building permit before the expiration of the Six Week Period made rent due 75 days after the Lease was executed. Id.

The evidence, when read in a light most favorable to the non-moving party, supports Plaintiff's interpretation. Defendant began paying rent on May 1, 2005, see Pl.'s Facts (Doc. 30) at ¶ 91, less than one week after the 75-day, post-Lease-execution period referenced in sub-Section (y). See discussion supra. Defendant's commencement of rental payments on the first day of the month following the expiration of the 75-day period would appear a remarkable coincidence, indeed.

This aside, Defendant has failed to demonstrate that sub-Section (x) controls and that the conditions precedent to payment therein did not obtain. Defense counsel's theory would require the Court to conclude, as a matter of law, that asbestos abatement was necessarily included in Defendant's "Demolition Work." See Def.'s Br. at 6-7, 8-9. "Demolition Work" was defined as "Exhibit[] A-2-l" to the Lease, as "further described [in] Exhibit C." See discussion supra. Exhibit A-2-1 appears in the record as a largely illegible architectural drawing. See Doc. 28-2 at pg. 32 of 44. Assuming a more legible copy of Exhibit A-2-1 exists, Defendant has identified no specific reference to asbestos abatement therein; rather, Defendant essentially concedes ...


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