Three Aces Properties v. United Rentals
- Three Aces Properties LLC, successor in
interest to Dresser Oil Tool, Inc., Plaintiff, Appellant,
United Rentals , Inc.,
successor in interest to RSC Equipment
Rental, Inc., Defendant, Appellee,
- Case Type
- CIVIL APPEAL : REAL PROPERTY
- Appeal From
Case No. 2017-CV-00094
Northwest Judicial District, Williams County
Paul W. Jacobson
Parties' Statement of Issues
1. The district court erred by not considering whether—and then not ultimately determining that—United Rentals breached the Agreement, as a matter of law, because it damaged the Premises in a number of respects, and it failed to repair those damages before surrendering the Premises.
2. The district court erred by not allowing the trier of fact to consider or determine at a trial of this matter the amount of damages that United Rentals owes Three Aces for the breaches of the Agreement by United Rentals related to the state of the Premises, including the parking area.
ISSUE 1: (Three Aces Appeal, Counts II-IV): Did the district court correctly grant summary-judgment dismissal of Counts II-IV because the correct measure of damages for alleged failure to repair the Premises was diminution in value; Three Aces’ expert found the state of repair did not reduce the Premises’ value; and Three Aces had a lucrative deal lined up with Kum & Go to demolish and redevelop the property—the property’s highest and best use? Yes.
ISSUE 2: (United Rentals Cross-Appeal, Count I): Did constructive eviction and automatic lease termination occur—relieving United Rentals of the duty to pay the last six months’ rent—when Three Aces’ failure to comply with a City paving ordinance caused the City to threaten United Rentals with prosecution, 30 days’ jail time, and $500 per-day fines, and send a police officer to the Premises to ensure that United Rentals was not conducting business? Yes, which is why the district court erred by granting affirmative summary judgment in Three Aces’ favor on Count I, and should have entered summary-judgment dismissal of Count I.
ISSUE 3: (United Rentals Cross-Appeal, Counterclaim): When United Rentals vacated the Premises on September 12, 2013, had Three Aces constructively evicted it and breached Three Aces’ duty under the lease to ensure United Rentals could “legally occupy” the Premises, entitling it to $4,138.80 in damages for previously paid September 13-30, 2013 rent? Yes, which required summary judgment in United Rentals’ favor, but the district court erred by, instead, granting Three Aces summary-judgment dismissal of the counterclaim.
Three Aces Properties LLC appeals and United Rentals (North America), Inc., cross-appeals from a judgment in a breach of contract action and orders denying their motions to amend the judgment.
Three Aces sued United Rentals for breach of contract, alleging United Rentals breached an agreement related to use of certain property by failing to pay rent through the end of the term of the agreement, failing to maintain and repair the parking area during the term of the agreement, and failing to maintain and repair the premises before vacating the premises. United Rentals counterclaimed for breach of contract, alleging it was constructively evicted when Three Aces breached the agreement by failing to maintain and repair the parking area. Both parties moved for summary judgment. The district court granted the motions in part and denied them in part. The court concluded United Rentals breached the lease by exiting early and not leaving the parking area in the same or similar condition and United Rentals was not constructively evicted. The court concluded Three Aces’ damages for the breach of contract related to the parking area were mitigated by redevelopment of the property, Three Aces was entitled to damages in the amount of $41,388 for unpaid rent, and no further damages would be awarded. Judgment was entered. Both Three Aces and United Rentals moved to alter or amend the judgment, and the district court denied both motions.
On appeal, Three Aces argues the district court erred by failing to conclude United Rentals breached the agreement by failing to maintain and repair the premises, determining the appropriate measure of damages was the diminution in value, and determining any damages Three Aces incurred were mitigated by redevelopment of the property. United Rentals argues the district court erred by ordering United Rentals to pay damages for unpaid rent on the property because it was constructively evicted and the agreement automatically terminated, and the court erred in concluding Three Aces did not breach the lease.
|APPELLANT||PRIVATE PRACTICE||Lisa Marie Six - 07232|
|APPELLANT||PRIVATE PRACTICE||Garth H Sjue - 03873|
|APPELLEE||PRIVATE PRACTICE||Not Licensed in ND - 00002|
|APPELLEE||PRIVATE PRACTICE||Jonathon Michael Zentner - 08143|
|APPELLEE||PRIVATE PRACTICE||Corey Shane Bronczyk - 08207|
|APPELLEE||PRIVATE PRACTICE||Stephen M Warner - 08319|
(Note: Attachments may not be available for recently filed cases and/or confidential documents.)
|Seq. #||Filing Date||Description||Attachment|
|1||02/06/2020||NOTICE OF APPEAL : 02/06/2020|
|2||02/11/2020||Rec'd $125 filing fee|
|3||02/11/2020||NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.|
|4||02/11/2020||Notice served on Garth H. Sjue, Lisa M. Six, Corey S. Bronczyk and Jonathon M. Zentner|
|5||02/20/2020||NOTICE OF CROSS APPEAL BY UNITED RENTALS, APPELLEES|
|6||02/20/2020||ORDER FOR TRANSCRIPT : 02/25/2020|
|7||02/20/2020||Notice of Appearance for Stephen M. Warner|
|8||02/20/2020||MOTION TO APPEAR PRO HAC VICE & AFFIDAVIT BY JEFFREY M. MARKOWITZ|
|9||02/24/2020||AMENDED AFFIDAVIT OF JEFFREY M. MARKOWITZ|
|10||02/24/2020||ACTION BY CLERK - Granted|
|11||02/25/2020||NOT. OF FILING NOT. OF CROSS-APPEAL AND PROOF OF SERV.|
|12||02/25/2020||Notice served on Jonathon M. Zentner, Jeffrey M. Markowitz, Stephen M. Warner, Corey S. Bronczyk|
|13||02/25/2020||Garth H. Sjue and Lisa M. Six|
|14||02/28/2020||ELEC. RECORD ON APPEAL DATED FEBRUARY 27, 2020 (ENTRY NOS. 1-237)|
|15||04/13/2020||ELECTRONIC TRANSCRIPT DATED AUGUST 7, 2019|
|16||04/13/2020||Certificate of Service of Transcript|
|18||05/26/2020||Oral Argument Request by Appellant|
|20||05/28/2020||Rec'd non-substantive corrections to ATB and ATA|
|21||06/01/2020||Rec'd $229.00 for 458 pages over 100 in appendix (receipt #27599)|
|22||06/02/2020||Rec'd 5 copies of ATB and 4 copies of ATA back from CD|
|23||06/25/2020||Non-Compliant AEB rec'd; given until 7/6/2020 to revise (length)|
|25||06/30/2020||Oral Argument Request by Appellee|
|27||07/06/2020||Rec'd 5 copies of AEB & 4 copies of AEA from Central Duplicating|
|28||07/06/2020||Rec'd $1.50 e-filing surcharge for AEA overage (Receipt #27770)|
|30||07/24/2020||Rec'd 5 copies of RYB back from CSD|
|31||07/27/2020||REPLY BRIEF OF CROSS-APPELLANT UNITED RENTALS||View|
|32||07/29/2020||Rec'd 5 copies of Reply Brief of Cross-Appellant from C.D.|
|33||08/13/2020||NOTICE OF ORAL ARGUMENT SENT|