Almeda Mall, L.P. v. Shoe Show, Inc., No. 4:2008cv02940 - Document 38 (S.D. Tex. 2010)
Court Description: MEMORANDUM OPINION AND ORDER granting as to liability and denying as to damages 31 MOTION for Summary Judgment. Denying 32 MOTION for Summary Judgment. Stipulation of damages due with in 30 days of entry of this order.(Signed by Judge Sim Lake) Parties notified.(hcarr, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ALMEDA MALL, L .P ., Plaintiff, SHOE SHOW , INC ., SHOE SHOW , C IVIL ACTION NO . H-08-2940 INC. d/b/a THE SHOE DEPT., INC ., and THE SHOE SHOW OF ROCKY MOUNT, INC. d/b/a SHOE DEPT ., Defendants . MEMODAHDUM OPIN ION AND ORDER Alm eda Mall , L .P . brings this action against Shoe Show , Inc w Shoe Show, d/b/a The Shoe Dept., and The Shoe Show of Rocky Mount, Inc. d/b/a Shoe Dept. ( collectively nShoe Show') alleging ' breach shopp ing mall lease agreement . Pending before the court are Plaintiff, Almeda Mall L .P .'S Motion for Summary Judgment ( Docket Entry No. and Shoe Show's Motion for Summary Judgment ( Docket Entry No . For the reasons explained below, the court will grant Almeda Mall's motion as liab ility , but will deny it as to damages and will deny Shoe Show 's motion . 1 . Factual and Procedural Background Almeda principal Mall place a of Delaware business limited partnership Texas . Shoe with Show its is North Carolina corporation with its principal place of business North Carolina . Shoe Show shoe retailer that operates approxim ately 1,100 shoe stores across the country under the trade names SHOE SHOW , SHOE DEPT., and Burlington Shoesx Shoe Show entered into a Lease Agreement with San Mall , Almeda Mall's predecessor Lease allowed Shoe Show interest, on December occupy approximately 3,993 square feet of retail space in the Almeda Mall for Lease called percent 2 O02 .2 term of yearsx minimum monthly rent of $4,824. plus five 88 annual gross sales over $1,100,000. The ten-year term 4 of the Lease could be terminated early under certain circumstances , including those described nGross Sales Kickout' clause ' 20 .03, which states : Tenant shall have the right to terminate this Lease upon sixty (60) days written notice which must be given, if at all, within sixty (60) days of the end of the fifth ( 5th) Lease Year, if Tenant's Gross Sales do not exceed One Million and 00/100 Dollars ( $1,000,000.00) in the fifth ( 5th) Lease Year. Tenant's right to terminate the Lease . . . is contingent on the following: ( Tenant not i) being in default of the Lease at the time the term ination notice is mailed and at the time the termination becomes effective; ( ii) Tenant having continuously operated using good faith efforts to maximize its Gross Sales throughout the first five ( Lease Years of the term 5) . 5 l shoe Show uCompany Info z ' Exhibit 2 to Plaintiff, Almeda Mall ' L .P .'S Memorandum in Support of Motion for Summary Judgment ( uAlmeda Mallrs Motion'), Docket Entry No. 31. ' z Lease Agreement , Exhibit Entry No . 31. 3 . $5 1.01 and Id 4Id . 5 2 .01 . 5Id . g 20.03 . to Almeda Mall's Motion, Docket Shoe Show began operating a shoe store in the leased p remises under the trade name SHOE DEPT Z' 2003 . March of 2007 Shoe Show opened a shoe store under the trade name MSHOE SHOW' ' the Almeda Square Shopping Center approximately feet from the perimeter of the Almeda Ma11 . 6 On July 27, 2007 , Almeda Mall, purchased the Almeda Mall shopping center from San Mall , became San Mall's successor Agreement .7 On April stating that provision interest intended to terminate the Lease under the nkickout' ' 20 .03 of Lease because 'kickout' p rovision because l ' 5 4 .08 of was store 's sales had not the Lease term x Mall responded that Shoe Show was SHOW store the Lease 2008, Sh oe Show sent Almeda Mall a letter exceeded $1 million in the fifth year clause regard and Almeda entitled to exercise the default of the Competition Lease because of the Almeda Square Shopping Centerx The Competition clause states: Section 4 .08 - Competition Tenant agrees that so long as this Lease shall remain in effect, Tenant ( or any officer, director or shareholder owning capital stock of Tenant) shall not, E ffidavit of J . W . Manning, Exhib it E to Motion for Summary A Judgment and Brief in Support Thereof ( ushoe Show's Motion' ') Docket Entry No . 32 , % 6. R Affidavit of Wayne Fox , Exhibit Docket Entry No . 31, % 3 . 8 . zd 9d = I Almeda Mall's Motion, either directly or indirectly, own , operate or be financially interested in , either itself or with others, a business operating under the same or substantially similar trade name, as permitted by Section 4.01( of c) this Lease, within a radius of two ( 2) miles of the perimeter of the Regional Developmentxo Clause 4.O1( c), which the Competition clause refers, states, nTenant shall operate business from the Prem ises under the following trade name only and under no other trade name : The Shoe Dept ./ 'H There dispute that the SHOE SHOW store in the A lmeda Square Shopping Center was within two miles of ' ATHE SHOE DEPT Z ' store the Almeda Mall. The central dispute between the parties whether 'SHOE SHOW' and ' ' ' 'THE SHOE DEPT Z' are nsubstantially sim ilar trade names' within the meaning of the Competition clause . ' Shoe Show informed A lmeda Mall position that the two trade names are not sub stantially similar . store in Almeda Mall on June Shoe Show vacated 2008, and stopped making rent Paymen ts .1 2 On August 2008, Almeda Mall filed suit against Shoe Show for breach of contract in Harris County, Texasx3 Shoe Show removed the action on October 2, 2008, diversity grounds ( Docket Entry l Lease Agreement , Exhibit o Almeda Mall's Motion, Docket Entry No . 31., 5 4 .08. l ld. : 4.01( l c). lA ffidavit of Wayne Fox, Exhib it 2 z Docket Entry No . 31, % 6. H plaintiff's Original Petition , Removal, Docket Entry No . 1. Almeda Mall's Motion, Exhibit Notice No. Almeda Mall filed a Motion for Summary Judgment on March 15, ( Docket Entry No. Shoe Show filed a Motion for Summary Judgment on the same ( Docket Entry No. Both parties have offered Responses and Replies ( Docket Entry Nos. 35, 36, 37, and 38) II . Summary judgment there Standard of Review authorized if the movant establishes that genuine dispute about any material fact and the law entitles judgment. 56( c). material facts are ngenuine' ' Disputes about the evidence is such that reasonable jury could return verdict for the nonmoving party. Anderson v . Liberty Lobbv, Incw S.CL. 2505, 2511 ( 1986). Supreme Court has interpreted the plain language of Rule 56( c) mandate the entry of summary judgment nafter adequate time for discovery and upon motion, against showing sufficient establish party who fails the existence make element essential to that party's case, and on which that party will bear the burden of proof at trial.' Celotex Corp . v . Catrett , lO6 S .Ct . ' 2548, 2552 ( 1986). A party moving for summary judgment nmust 'demonstrate the absence of a genuine issue of material fact,' need not necate the elements of the nonmovant's case .' Little v . ' Liauid Air Corr w F.3d 1069, ( quoting Celotex, S. Ct. ( 5th 1994) ( en banc) 2553-2554). the moving party meets this burden, Rule 56 ( requires the c) nonmovant go beyond p leadings show by affidavits, depositions, answers interrogatories, adm issions file , or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id . ( citing Celotex, S. Ct. at 2553-2554). In reviewing the evidence uthe court must draw a1l reasonab le inferences favor of the nonmoving party, and it may weigh the evidence .' Reeves ' v . Sanderson Plumbinq Products, Inc., 120 S.Ct. 2097, 2110 ( 2000). Factual controversies are to be resolved in favor of the nonmovant, ubut only when b0th parties have submitted evidence contradictory facts .' Little, ' F .3d at 1075 . 111 . Breach of Contract Almeda Mall argues that Shoe Show b reached Lease by vacating the premises and stopping rent payments before the end of the lo-year Lease term . Shoe Show argues that it was perm itted terminate the Lease under the nkickout' provision ' Lease because store's gross sales Lease were less than $ Show was that entitled becomes effective .'l '4 the fifth year the million . Almeda Mall responds that Shoe use provision because Tenant not beging) the term ination notice 5 20.03 of the requires default of the Lease at the time mailed and the time the term ination Almeda Mall argues that Shoe Show was default of the Lease at that time because it had opened a SHOE SHOW store the Almeda Square Shopp ing Center violation of the MLease Agreement, Exhibit 1 to Almeda Mall's Motion , Docket Entry No . 31 ., 5 20.03 . - 6- Competition clause 4 .08, which requires the Tenant to not own operate na business operating under the same substantially similar trade name' within two miles of THE SHOE DEPT . store in the ' Almeda Mal1 .l 5 entitled Almeda argues that Shoe Show was not use the nkickout' provision because ' also requires, ' ii) Tenant having continuously operated using good faith efforts 'l maxim ize first five Gross Sales throughout Lease Years of the term .'1 Almeda Mall argues that Shoe Show 's op eration '6 of a competing store a neighboring shopping center to the Almeda Mall estab lishes that Shoe Show did not attempt maximize its gross sales good faith to the Almeda Mall store . Shoe Show argues that 'SHOE SHOW' and 'THE SHOE DEPT .' are not ' ' ' ' substantially contract . sim ilar trade names within meaning of Shoe Show further argues that its operation of a SHOE SHOW store in the Almeda Square Shopping Center does not constitute lack of good faith effort store because two m axim ize sales stores target the Almeda Mall different shopping demographics. The parties do contract action ; what is SHOE DEPT Z' are 16 d I g 2 0 .0 3 . dispute is whether 'SHOE SHOW' and 'THE ' ' ' substantially similar meaning of the contract. 15Id . . 4 .08 . , g breach of trade names within the A. App licable Law Choice of Law While federal 1aw establishes summary judgment, standards for entry of a diversity case the court looks to Texas law and its choice-of-law principles in determ ining what state 's 1aw to apply . Erie Railroad Co . v . Tompkins, 58 S . Ct. 817 ( 1938); General Accident Ins. Co. v . Unity/Waterford-Fair Oaks, Ltd w 288 F . 3d 651, ( 5th 2002). Texas gives effect clauses regarding construction a contract . Tnc . v . J . . Huber Corn w 343 F .3d 719, M choice-of-law Benchmark Elecs., ( 5th Cir. 2003) ( citing In re J .D . Edwards World Solutions Co ., S. .3d 546, 549 ( W Tex. 2002)). The Lease contains a choice-of-law provision that states , the intent the parties hereto that al1 questions and/or disputes with respect rights and determined the the construction liabilities the accordance with Both parties agree parties laws this Lease and the hereto shall be 'l7 State of Ohio . ' Ohio 1aw governs the dispute . The court will therefore apply Ohio law Construction of Contracts Under Oh io Law Under Ohio law leases are contracts and are subject traditional rules governing contract interpretation . Foods, Inc . v . New Plan Excel Realtv Trust , 1 Id . g l9 .0 3 . 7 - 8- the Mark-lt Place N .E .2d 979, ( Ohio Ct. App. 2004). In construing the terms of any contract, the principal objective determine the intent Ham ilton Ins. Serv ., Inc . v . Nationwide Ins . Cos w ( Ohio 1999) intent the parties the parties . 714 N . E .2d 898, a contract presumed reside the language they chose to employ agreement . Foster Wheeler Enviresoonse, Inc . v . Franklin Countv Convention Facilities Authoritv, 678 N . .2d E When the language written contract is clear, further than the writing itself parties. ( Ohio 1997) court may look find the intent Westfield Ins . Co. v . Galatis, 797 N .E .2d 1256, 1261 ( Ohio 2003) Common words appearing in a written instrument be given their ordinary m eaning unless manifest absurdity results, unless some other meaning is clearly evidenced from the face or overall contents of the instrument . Foster Wheeler, 678 N .E .2d at ( quoting Alexander v. Buckeve Pipe Line Cow 374 N . E.2d ( Ohio 1978)). When the terms included in an existing contract are clear and unambiguous, Ohio courts will contract finding an intent create expressed the clear and unambiguous language of the written contract . Ham ilton , ( quoting Alexander, N. E.2d new 150) N .E .2d When contract term s are clear and unambiguous, contract interpretation m atte r Lon? Beach Assrn , Inc . v . Jonesr 209-10 ( Ohio 1998); Mark-lt Place, 804 N . E.2d contract unambiguous 9- 992 . As a matter can be given a definite legal meaning . Westfield , 797 N . E .2d at 1261. - N .E .2d 208, To establish a breach of contract under Ohio law , a plaintiff must show that contract existed , the plaintiff performed, the defendant breached, and the plaintiff suffered damages. Wauseon Plaza Ltd. P'ship v . Wauseon Hardware Co., N . . E 2d 953, 957 ( Ohio Ct. App. 2004). The parties do not dispute a contract existed that Almeda Mall performed under the contract . The parties dispute whether Shoe Show breached the contract and amount, if any, of Almeda Mall's damages . B. Analysis Ambiquitv To rule on breach of contract claim the court must first determine whether the relevant contract language matter of law , definite legal meaning . question unambiguous con tra ct can be given a Westfield, N .E .2d whether phrase this action similar trade name' ' concludes that ambiguous . 1261 . usubstantially definite legal meaning . The court does . The term utrade name' has ' defined legal meaning under The chapter of the Ohio Labor and Industry Code dealing with Deceptive Trade Practices defines ntrade name' as ' symbol, device, any form combination a word , name, symbol, or device arrangement used person 's business, vocation , word , name , person identify occupation and distinguish it from business, vocation, or occupation of others .' ' BALDWIN'S OHIO REVISED CODE ANNOTATED, R .C . specifically 4165.01. While this provision refers deceptive trade practices rather than contract interpretation , the court is satisfied that also relevant issues utrade name' ' contract interpretation . The term defined by Black's Law Dictionarv as follows : tradename . A name , style, or symbol used to distinguish company, partnership , or business ( as opposed to a product or service); the name under which a business operates . @ A tradename is a means of identifying a business - or its products or services - to estab lish goodwill . It symbolizes the business's reputation. Black's Law Dictionarv ( 8th ed. 2004). trade name thus name identifies Moreover, becau se b0th definitions state that trade name, just words clear that the term ntrade name the name: also The other words symbol can be encompasses presentation words and the effect that the p resentation has business and distinguishing business . those identifying the from others. the phrase are nsub stantially' and ' nsimilar .' Common words appearing in a written instrument will be ' given their ordinary meaning unless manifest absurdity results , unless some other meaning clearly evidenced from the face overall contents of the instrument . Foster Wheeler , 678 N .E .2d at 526. Nothing Lease suggests these words should be given anything other than their ordinary m eaning . 'Substantially' ' ' the adverbial form of usubstantial,' which in this context means ' ubeing such with respect to essentials . '' RANDOM HOUSE WEBSTER'S COLLEGE DICTIONARY, 2d 19 99 . 'Similar' means uhaving ' ' - 11- likeness resemblance' ' 'having qualities ' COLLEGE DICTIONARY, 2d corm on .' PV n ' ANDOM HousE WEBSTER'S ed . 1999 . Thus , trade names nsub stantially sim ilar' will have essential elem ents ' that Common . Superficial similarities in wording or appearance will not suffice . Because utrade name' has a ' the terms nsubstantially' and nsimilar' appear in the contract with ' ' their plain and ordinary meanings, court concludes that phrase nsubstantially similar trade name' is clear and unamb iguous . ' The parties agree that the contract is unambiguous x' Because the language is clear, the court will not consider writings outside of the contract intent the parties . See Westfield, N .E .2d at 1261. Also , because the term s are clear and unambiguous, court may interpret them as matter law . See Mark-lt Place, 804 N .E .2d at 992 . Since there are no material fact issues dispute and the court may interpret the contract as a matter of law, summary judgment appropriate. Sub stantiallv Sim ilar Trade Name The two trade names DEPT Z ' The question are ' ASHOE SHOW ' and ' ' 'THE SHOE concludes that these names are substantially similar. The essential elements of both names are the word ' 'SHOE' ' followed by another four-letter-word a11 cap itals . Wh ile the l8 See Shoe Show 's Motion , Docket Entry No. 32, p . 22 (' 'The Lease language is clear and unambiguous'); see also Plaintiff, ' Almeda Mall L .P .'S Response to Defendants' Motion for Summary Judgment , Docket Entry No . 34, p . 8. words ushow' and ndept .' ' ' mean same thing , when paired with the word ushoe' they b0th suggest a p lace where a person could ' buy shoes . The intended audience shoppers would likely interpret the two names to mean essentially the same thing -- this store that sells shoes . the front similar Visually, stores .19 names appear very Although the name ' 'THE SHOE DEPT .' contains three words while 'SHOE SHOW' contains only two, ' ' ' the article nthe' appears in much smaller letters to the upper ' of 'SHOE DEPT .,' ' ' emphasized part effect that the name . latter two words are the While the two trade names employ slightly different fonts the capital letters more rounded than those SHOE DEPT . SHOE SHOW are b0th emp loy sans-serif capital letters of comparab le proportion s, with the result that both names look similar on store fronts. The court concludes that because names similar structure, meaning , trade names are substantially sim ilar within the appearance, meaning are the contract. This conclu sion is consistent with Ohio case 1aw applying the term nsubstantially similar' ' trade names. Cleveland Opera Co. v . Cleveland Civic Opera Association, Inc., 154 N .E . 352, 353- ( Ohio App . 1926), the Ohio Eighth District Court of Appeals concluded that the trade names nCleveland Opera Company' and ' l photographs of store fronts, Exhibit I to Shoe Show's Motion, g Docket Entry No . 32. 'Cleveland Civic Opera Association, ' were nsubstantially similar' that use of the name uCleveland Civic Opera Association , ' Inc .' would constitute unfair competition . ' action deals contract Although the present interpretation rather competition, the relevant contract language appears than unfair the Lease clause dealing with nCompetitions ' and thus, the Ohio court's use the term nsub stantially sim ilar' ' name's competitive effect the context of the trade relevant . Opera Co. was confronted with The court Cleveland two names which , although one contained more words than the other and used the word uAssociation' ' where the other used nCo.Z' were still usubstantially similar' ' because they would imply the same meaning The Ohio court stated that seems the intended audience . us from analysis of the names themselves that there is not that dissimilarity that would attract the eye contrast the mind of the public .' Id . at ' This analysis app lies to the trade names at issue in this action as well, since there is no difference in meaning or appearance in the names that would suggest shopper that the two stores are not essentially similar . Shoe Show argues that more recent A ssociates, Inc . v . Thomson Central Ohio , App. 1998), supports different result case, N. . E 2d Leventhal & ( Ohio Ct. this action. Leventhal the Ohio Tenth Court of Appeals held that the trade name nColumbu s Curiocity for Kids' was not so similar to the name nKids ' Connection' as to constitute a common-law deceptive trade p ractice . ' - 14- Id . at 423 . Although the case dealt with deceptive trade practice allegations rather than issues court's analysis of instructive . contract interpretation, the sim ilarities that case, the of trade names shared word between the two names was the word uKids r' which appears at the beginning of one ' name as subject and at the end of the other as the object of a preposition . The name nColumbus Curiocity for Kids' has tw ice the ' number of words as 'Kids Connection,' and specifies a geographic ' ' region while the name nKids Connection' does ' provides an example how two trade names dissimilar for Leventhal sufficiently court to hold them not to be similar as a matter of law . The trade names at issue in this action , by contrast, are far more sim ilar than were the names at issue in Leventhal . names are more similar The appearance and meaning , and the most prominent word in 50th names -- shoe is used in the same place and in the same way in b0th names. Shoe Show points out that the names sound different , because person speaking would pronounce the name 'DEPT Z ' as the three' syllable word 'department .' ' ' Shoe Show may be correct, court concludes that the visual impact the trade names is more significant than their pronunciation because shoppers are more likely experience the trade names visually trade names rather than store front, hearing them . shopping bag, Since similar trade name' appears ' by seeing sign , -- phrase nsubstantially a clause addressing competition to - 15- the store in A lmeda Mall , impact relevant to consider the probable a trade name will have on shoppers . also worth noting that Shoe Show chose the contracted form ' 'DEPT . ' for the ' store's trade name rather than the full word nDepartment' ; ' fair to infer that the visual impact of the contracted form conjunction with the word 'SHOE' was significant ' ' that choice. The court is not convinced that any difference in the pronunciation of the spoken form of the trade names sufficiently differentiates the names C. render them not nsubstantially sim ilar . '' Conclusion Because 'SHOE SHOW' and 'THE SHOE DEPT Z ' are sub stantially ' ' ' similar trade names, and because Shoe Show was operating a business under trade name 'SHOE SHOW ' within ' ' miles 'THE SHOE ' DEPT .' store in the Almeda Mall in June of 2008, Shoe Show was ' default of the Lease when Shoe Show was therefore not entitled ceased making rent payments . terminate the Lease under the nkickout' provision of 5 20 .03 at that time, and Shoe Show's ' failure make rental payments since June 2008 constitutes b reach of contract . Because Shoe Show was in default as the Lease matter of law, and because there are no material issues disputer Almeda Mall is entitled to summary judgment on its breach of contract c1aim .2 0 MBecause the court has concluded that Shoe Show was in default under 5 4 . 08 of the Lease, the cou rt will not consider Almeda Mall's alternative argument that Shoe Show did not operate in good faith . Damaqes Almeda Mall seeks summary judgment on the amount of damages. For the reasons explained below, the court concludes that Almeda Mall has not proven the amount of its dam ages as a matter of law . A. Calculating the Damages The Lease p rovides remedies for the landlord the event of the tenant's default in 5 13 .02, which provides that upon default : . . . Tenant shall be liable for a11 damages sustained by Landlord, including, without lim itation , a11 rent through the remainder of the term of this Lease , including Minimum Rent, Additional Rent, and Percentage Rent ( equal to the greater of ( i) an annual rate of the average annual Percentage Rent owed by Tenant from the Term Commencement Date through the date of Default , and ( ii) the amount calculated pursuant to Section 4.02 ( of b) this Lease), and reasonable attorneys' fees. . . . In determining Landlord's damages, ( aa) a11 sums which are past due at the time of the award shall include an interest charge, as set forth in Section 2 .07 of this Lease, from the due date as set forth herein until the time of the award, ( bb) and a11 sums which would not have accrued at the time of the award but for Tenant 's Default or abandonment or vacating of the Premises shall be discounted at the rate of five percent ( 5%) per annum, after first being reduced by the amount of rental loss Tenant proves could have been or could be reasonab ly avoided, which sum shall also be discounted at the rate of five percent ( 5%) per annum. l z Calculating the proper award under 5 13 .02 is not a trivial matter . includes three types of rent, each subject to interest charges for amounts past due and discounting for rent due after the date of the award . types of rent are : zl Lease Agreementr Exhibit Entry No. 31, 5 13.02 ( c). M inimum Rent, which is set Almeda Mall's Motion, Docket 2.01 at $4,824.88 per month; Additional Rent, the term 5 2 .05 for most of the Tenant's other payment ob ligations under the Lease, including under 5 4 .03, Late Charge under 5 2 .07, certain utilities proportionate share common area expenses under 5 5.03, a proportionate share of real estate taxes under 5 7.01, proportionate share of insurance charges under 5 8.02, and a Media Fund under 5 Percentage Rent, which is defined and as five percent annual gross sales over $1,100,000, although with some complications exactly how the am ount is calculated . the event that Competition clause party found have breached the 5 4 .08, the Lease provides the following regarding the calculation of Percentage Rent : Due to the difficulty in determining the extent to which Landlord would be damaged as a result of Tenant breach of the foregoing covenant E e. the Section 4.08 Competition i. covenantq, it is agreed that in the event of such breach Landlord shall, in addition to any other legal or equitable remedies otherwise available , be entitled to include one hundred percent (100%) of the Gross Sales from any such location established in violation of the foregoing covenant in Gross Sales from the Premises for purposes of calculating Percentage Rent due pursuant to this Lease . Moreover, in the event Tenant fails to supply to Landlord sales records with respect to any such similar or competing business, Landlord shall have the right to estimate the gross sales for such businesses based upon Gross Sales in the Prem ises, and the additional Percentage Rent generated from the inclusion of such estimated gross sales shall be deemed Percentage Rent to be paid by Tenant in accordance with the p rovisions of this Lease .2 2 2 Lease Agreement, Exhibit 1 to Almeda Mall's Motion , Docket 2 Entry No . 31, @ 4.08 . - 18- add the sales from the 'SHOE SHOW' store ' ' those from 'THE SHOE DEPT Z ' store ' calculating Gross Sales, and based on sales entitled estimate those sales, 'THE SHOE DEPT .,' where Shoe Show fails to ' ' p rovide them . the event that Shoe Show vacates the store in the A lmeda Mall, Almeda Mall greater of ( an annual rate of the average annual Percentage Rent i) owed by Tenant from the Term Commencement Date through the date of Default, and ( ii) the amount calculated pursuant to Section 4.O2 ( b) of this Lease.'2 Section 4.02 ( of the Lease provides that in the '3 b) event the Tenant abandons the store A lmeda Mall entitled to nincrease by twenty-five percent ( 25%) the M inimum Rent reserved the period of Tenant's failure a monthly Percentage Rent Rent of $14,474.64. do business,' which results ' $1,206. and an annual Percentage 22 In practical terms, this means that unless nthe average annual Percentage Rent owed by Tenant from the Term Commencement Date through the date of Default' was calculated upon ' annual Gross Sales exceeding $1,389,492.80, the proper calculation of Percentage Rent post-default will be $14,474.64 per year. Section 13.02 ( c) attorneys' fees .' ' another party's 2 . 5 13 .02 . 3Id allows the recovery nreasonable Under Ohio law contractual agreements uenforceable and not void as against public policy so long as the fees awarded are fair, just and reasonable as determined by the trial court upon full consideration of a11 of the circumstances of the case .' Wilborn v . ' Bank One Coro ., 906 N . E.2d 396, 400 ( Ohio Nottinqdale Homeowners' Assn ., Inc . v . Darbv, 2009) ( quoting N .E .2d 702, ( Ohio 1987)). A party seeking an award of attorney's fees has the burden demonstrating reasonable value such services . Hikmet v . Turkoalu, 2009 WL 4699101, *16 ( Ohio Ct. App . 2009). A party seeking attorney's fees in federal court bears the burden producing adequate documentation of the hours spent litigating the claims . See Leacue of United Latin American Citizens No . 4552 ( LULAC ) v . Roscoe Independent School District , 1232-33 ( 5th 1997). Specifically, detail the hours expended in court B. manner that confirm that the party h as met F .3d 1228, moving party must sufficient for the burden . Id . Alm eda Mall 's Claimed Dnmnges Almeda Mall seeks an award of $1,007,272, which is composed of $403,620 of damages past due with accrued interest, $463,651 future damages due, and $140,000 for attorney's fees. Almeda Mall has provided a spreadsheet detailing how the past and present damages were calculated .z l The spreadsheet lists the various component damages assessed for every month starting from default on M calculation of Dam ages , Exhibit 3 Docket Entry No . 31. Almeda Mall's Motion, July 1, 2008, to the end of the Lease term on March 2013 . There are a number of problems with the sp readsheet , however . The first prob lem that Almeda Mall provides no evidence substantiating the amounts included for utilities, common area expenses, real estate taxes, or insurance . These amounts add up approximately $7,000 per month, and nearly $400,000 over the fiftyseven months listed on the spreadsheet . Almeda Mall obligated Given the sums involved , provide more than numbers spreadsheet to establish that these amounts are correct . there are material questions Because fact concerning these damage numbers, the court cannot grant summary judgment on the issue damages. Second, the spreadsheet contains errors calculating the damages. The spreadsheet lists 50th Liquidated Dam ages calculated under 5 4.02( and Percentage Rent calculated as a percentage of b) sales over $1,100,000, pursuant 2 .02 and 4 .08 . Section 13 .02, however, provides that the Percentage Rent upon default will be calculated either as amount under 5 4.02 ( or nan annual b) rate of the average annual Percentage Rent owed by Tenant from the Term Commencement Date through the date greater. Default z' whichever ' this instance the amount calculated under 5 4.02 ( is b) greaterr so that is the amount that A lmeda Mall Percentage Rent; not entitled past Gross Sales as well . entitled to as an award based on average A further problem with Almeda Mall's calculation of Percentage Rent due that is b ased on future estimates of Gross Sales that have no basis reality . When b0th businesses were operation, Almeda Mall was permitted under 5 4 .08 to add the sales of USHOE SHOW' ' Sales. those of 'THE SHOE DEPT Z ' ' For those years calculate Gross which both stores were actually operation, the combined sales two stores never exceeded $1,100,000. 5 The nannual rate 2 the average annual Percentage Rent owed by Tenant from the Term Commencement Date through the date Default' is therefore zero because Shoe Sh ow never passed ' the Percentage Sales breakpoint time before default . Almeda Mall, however, calculates Percentage Rent based up on an increasing combined Gross Sales 2013. There the two stores that reaches $1,376,789 support this number because neither store 6 has been in operation Since 2008 .2 The Lease does not allow Almeda Mall charge Percentage Rent for sales that never happened, except where specifically allowed Almeda Mall 13 .02 . For these reasonsr entitled to any of the Percentage Rent shown on the spreadsheet other than the amounts listed as uLiquidated Damages.' ' A third problem that the Sp readsheet lists nMedia Fund' ' charges as $199.65 per month. The correct charge under $ 19.14 is 2 sa1es Curve Projection, Exhibit 5 Almeda Mall's Motion, Docket Entry No . 31. 26 ., showing no sales for Shoe Show after August of 2008 . 1d - 22- $0. per 50 for a 3,993 square foot store means $1,996. per year, which translates into a monthly payment 50 of $166. 38. Fourth , 5 13 .02 allows for interest charges on amounts past due up until requires discounting , award, rather than interest charges, for a11 damages that uwould not have accrued at time of the award .' The spreadsheet appears to have ' applied the provision correctly up until then continues projected time award in May 2010, accrued interest payments period after the award, building up a monthly interest charge of $20,497.85 in March of 2013. This incorrect; the spreadsheet should discount the amounts due after the award at an annual rate five percent, and should assess accrued interest charges after the date of the award . Fifth, Almeda Mall requests $140,000 in attorney's fees, but the affidavit provided Almeda substantiation for only $64,800 Mall's attorney provides attorney's fees ( 216 hours at $300 an hour). 7 There is no explanation for the additional $76,200 2 in attorney's fees that A lmeda Mall requests. C. Conclusion Given the lack of substantiation for significant components of Almeda Mall's claimed damages, as well as Almeda Mall's errors in DA ffidavit of Julian J . Fertitta, Mall's Motion, Docket Entry No . 31, % 4. Exhibit Almeda calculating the amount properly due under the terms of the Lease, the court cannot make an award damages this Memorandum Opinion and Order or enter a final judgment. The parties will have thirty days from entry this Memorandum Opinion and Order agree on the correct am ount of damages to submit affidavits and briefing establishing the proper amount of damages . Conclusion and Order the reasons explained above, the court concludes that USHOE SHOW' and 'THE SHOE DEPT Z' are substantially similar trade ' ' names within the meaning that Shoe Show breached the Lease Agreement and, therefore, contract with Almeda Mall when abandoned its store in the Almeda Mall and ceased paying rent prior to the end of the Lease term . Therefore, Almeda M all's Motion for GRANTED as to liability Summary Judgment ( Docket Entry No. and DENIED damages; and Shoe Show 's Motion for Summary Judgment ( Docket Entry No. is DENIED . The parties are ORDERED to submit a stipulation of the damages due A lmeda Mall submit briefing and affidavits establishing the proper amount of b reach of contract damages within thirty days of entry of this Memorandum Opinion and Order . SIGNED at Houston , Texas, on this the 2nd da June , 2010. e' SIM LAKE UNITED STATES DISTRICT JUDGE - 24-
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