Professional Documents
Culture Documents
Doc: 37
Filed: 06/11/2015
Pg: 1 of 29
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1794
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:13-cv-03390-RWT)
Argued:
Decided:
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 2 of 29
relief
agreement
between
in
the
the
form
of
parties.
specific
The
performance
district
court
of
the
granted
summary judgment for White Flint, finding that Dave & Busters
had
violated
the
radius
restriction
clause
and
that
White
those
arguments
all
seek
to
overlook
the
agreement
the
provisions
of
the
agreement
2
was
radius
restriction
Appeal: 14-1794
Doc: 37
clause,
in
Filed: 06/11/2015
which
Dave
&
Pg: 3 of 29
Busters
agreed
to
refrain
from
of
the
Arundel
Mills
Mall
location
rendered
it
in
neither
party
contests
that
the
Arundel
Mills
of
deference
Mall
Flint
longstanding,
noted
mutually
that
out
beneficial
relationship
to
the
between
the
parties, the company had elected not to formally place Dave &
Busters in default under the Lease even though the Arundel
Mills
situation
Lease.
J.A.
constitute[d]
130.
The
company
significant
did,
violation
however,
include
of
the
in
the
letter that the Landlord reserves all of its rights under the
Lease
and
at
law
to
enforce
the
terms
of
the
Lease.
Id.
Appeal: 14-1794
On
Doc: 37
Filed: 06/11/2015
September
5,
Pg: 4 of 29
2012,
however,
in
connection
with
landlord
would
proceed
to
exercise
its
rights
under
the
did
not
result
in
satisfactory
outcome
and
on
October 17, 2013, White Flint sent a letter to Dave & Busters
stating that it was no longer willing to refrain from enforcing
its right to possession of the Premises and requesting Dave &
Busters vacate the property by the end of November. Id. at 139.
On
lawsuit
November
in
the
14,
2013,
district
of
Dave
&
Maryland
Busters
initiated
seeking
declaratory
this
and
Appeal: 14-1794
Doc: 37
contract
was
Filed: 06/11/2015
time-barred
Pg: 5 of 29
by
the
statute
of
limitations,
district
court,
after
hearing,
granted
partial
Flint
in
answer
to
the
initial
Complaint,
awarding
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 6 of 29
stated that it had abandoned any claim for damages arising out
of any violation of the express terms of the Lease between the
parties. Id. at 418. The district court denied the motion on
August 8, 2014. Dave & Busters now appeals.
II.
A.
Dave & Busters primary contention is that the statute of
limitations
has
run
on
White
Flints
claim
for
breach
of
contract. The company argues that the district court erred when
it refused a declaratory judgment on the question and granted
summary judgment for White Flint. We disagree. Because Dave &
Busters actively continued to breach a contract that was still
valid and in effect, White Flints action did not run afoul of
the statute of limitations.
Under
limitations
Maryland
law,
question,
which
civil
governs
action
shall
the
be
statute
filed
of
within
Maryland
strictly.
See
courts
Murphy
construe
v.
the
Merzbacher,
statute
697
A.2d
of
limitations
861,
865
(Md.
Appeal: 14-1794
Jones
Doc: 37
v.
Filed: 06/11/2015
Hyatt
Ins.
Agency,
Pg: 7 of 29
Inc.,
741
A.2d
1099,
1104
(Md.
to
single
breach
based
on
the
acquisition
and
to
the
flow.
We
disagree.
continuing
effects
The
of
situation
here
earlier
single
does
not
act.
that
certain
covenants
imposing
ongoing
negative
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 8 of 29
of
the
Arundel
Mills
location.
In
case
of
this
of
damages
incurred
more
than
three
years
prior
to
suit, but it does not render the present action for an equitable
remedy time-barred. See Singer Co., Link Simulation Sys. Div. v.
Baltimore Gas & Elec. Co., 558 A.2d 419, 425-26 (Md. 1989).
In Kaliopulus v. Lumm, the Court of Appeals of Maryland
considered a question quite similar to the one before us today.
See
141
A.
at
442.
Appellant
James
Kaliopulus
sold
his
any
restaurant
or
dining
room
business
within
the
Kaliopulus
breached
this
contractual
obligation
by
was
not
subject
to
the
equitable
doctrine
of
laches
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 9 of 29
Maryland
law,
the
continued
operation
of
competing
underscored
that
where
contract
provides
for
anew,
continuously.
with
the
result
Singer,
558
A.2d
being
at
that
426;
accrual
see
also
occurs
Indian
Appeal: 14-1794
Doc: 37
continues
so
Filed: 06/11/2015
long
as
the
Pg: 10 of 29
breach
continues
and
plaintiff
is
operating
any
competing
facilities
within
the
radius
continuing
tolling
the
statute
breach
of
theory
limitations
where
the
grounds
were
ongoing
for
adverse
10
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 11 of 29
breach
exception
to
the
statute
of
limitations.
to
litigate
and
find
their
justification
in
to
termination
of
the
Lease
by
continuing
performance
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 12 of 29
April 2006 letter, White Flint notified Dave & Busters that it
believed
the
constitute[d]
clearly
operation
a
advise[d]
of
the
Arundel
significant
violation
[Dave
Busters]
&
of
Mills
the
that
location
Lease
the
and
Landlord
agreement
contains
an
express
non-waiver
provision.
Appeal: 14-1794
do
Doc: 37
Filed: 06/11/2015
business.
To
avoid
Pg: 13 of 29
waiver,
party
must
assert[]
his
v.
Pelton,
245
A.2d
301,
304
(Md.
1968))
(internal
be
inferred
from
equivocal
acts
or
language.
Myers
v.
Kayhoe, 892 A.2d 520, 531 (Md. 2006). Here, for the reasons
noted above, the record is clear. In light of the undisputed
material facts before us, no rational factfinder could find that
White Flint intended to waive its right to enforce the terms of
the Lease, including the non-waiver provision and the radius
restriction clause.
Dave & Busters argues that the continued performance under
the contract constitutes a waiver of White Flints rights to
terminate
the
Lease
for
violation
of
the
radius
restriction
breach
371
A.2d
of
contract
124,
127
claim.
(Md.
See
1977).
Chertkof
However,
v.
it
Southland
does
not
13
Appeal: 14-1794
Doc: 37
matter
of
Filed: 06/11/2015
intent,
which
Pg: 14 of 29
necessarily
turns
on
the
factual
considering
the
factual
circumstances
here,
it
is
and
Dave
&
Busters
contains
an
express
non-waiver
at
985.
However,
to
defeat
summary
judgment,
Dave
&
to
waive
Section
20.3
in
addition
to
the
radius
its
right
White
to
Flint
enforce
the
continued
to
radius
accept
restriction
rent
from
clause.
Dave
&
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 15 of 29
the Landlord reserve[d] all of its rights under the Lease and at
law
to
enforce
the
terms
of
the
Lease.
Id.
Following
this
letter, Dave & Busters was on notice that at any point in the
future White Flint might seek to enforce the radius restriction
clause
with
regard
to
the
Arundel
Mills
location.
Dave
&
contract
for
seven
years,
instead
choosing
to
enjoy
the
Flint
could
still
elect
to
pursue
its
bargained-for
resume
possession
of
the
property,
the
downside
of
enforceable.
Hovnanian,
25
A.3d
at
984.
Thus,
summary
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 16 of 29
III.
A.
Dave
&
Busters
primary
contentions
in
this
action
are
ability
alternative,
waived.
On
to
that
the
terminate
any
claim
merits,
the
for
Dave
&
the
contract
breach
Busters
also
and,
of
in
the
contract
was
challenges
the
question
of
whether
the
radius
restriction
clause
was
district
court
did
not
err
when
it
granted
summary
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 17 of 29
are
in
the
nature
of
restraints
on
trade
and
language
of
the
provision
here
is
clear
and
complex
under
the Dave & Busters Trade Name within the radius area. J.A. 52.
It is undisputed that the Arundel Mills Dave & Busters location
was within the radius restriction area, and thus in violation of
the
provision.
Furthermore,
the
language
at
issue
is
very
to
protect
the
percentage
rent
by
precluding
competing
operations within the same market area that might siphon sales.
Id. at 952 n.7.
Both
Dave
&
Busters
and
White
Flint
are
sophisticated
leases.
here.
The
The
significant
Lease
is
for
17
economic
the
purpose
operation
of
is
a
self-
Dave
&
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 18 of 29
expert
testimony
to
determine
that
another
Dave
&
such
but
an
failed
to
allegation.
brief
the
[T]here
is
necessary
no
issue
facts
for
to
trial
v.
Catrett,
477
U.S.
317,
322
(1986)
(finding
summary
unduly
burdensome.
Thus,
summary
judgment
was
properly
discovery
and
relatedly,
18
that
the
district
court
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 19 of 29
abused its discretion in not granting Dave & Busters Rule 56(d)
request for discovery, which it filed as part of its motion for
reconsideration. We address these two interconnected arguments
in turn.
As a general matter, of course, summary judgment is to be
refused where the nonmoving party has not had the opportunity
to discover information that is essential to his opposition.
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th
Cir.
2002)
(quoting
Anderson,
447
U.S.
at
250
n.5).
more
time
was
needed
for
discovery
before
the
additional
facts
litigants
hope
to
uncover
through
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 20 of 29
Harrods,
this
objections
functional
court
before
equivalent,
found
the
that
where
the
district
court
served
Rule
56(d)
affidavit
nonmoving
may
as
the
not
be
(D.C.
nothing
more
memorandum
further
Cir.
1988)).
than
in
here,
conclusory
opposition
factual
But
to
development
Dave
statement
summary
of
the
&
Busters
at
the
end
included
of
its
judgment
arguing
that
record
regarding
the
at
961;
see
also
Harrods
Ltd.,
302
F.3d
at
244
Appeal: 14-1794
Doc: 37
judgment
is
Filed: 06/11/2015
not
affidavit.).
an
As
adequate
explained
Pg: 21 of 29
substitute
above,
the
for
court
[Rule
properly
56(d)]
granted
56(d)
affidavit.
J.A.
308-11.
This
was
too
little,
too
abused
its
late.
Secondly,
we
do
not
find
the
district
court
the
nonmovant
to
survive
summary
judgment.
to
prove
speculative
as
to
through
any
additional
specific
facts
Pisano
v.
discovery
that
was
might
largely
support
not
an
conclusions
abuse
regarding
of
discretion
summary
to
judgment
refuse
on
the
to
reconsider
basis
of
only
21
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 22 of 29
IV.
In addition to its request for additional discovery, Dave &
Busters
also
included
in
its
motion
for
reconsideration
an
It
now
argues
that
the
district
court
erred
when
it
denied the opportunity to cure and found the Lease was validly
terminated. We disagree.
Section 18.1 of the Lease provides in relevant part that in
the event of a default by Dave & Busters in the performance of
its covenants or agreements (other than payment of rent), the
company would have thirty days after notice in writing of the
default to cure. J.A. 61-62. In addition, where there is a bona
fide dispute . . . [Dave & Busters would be able to] cure any
default at any time prior to final adjudication by a court of
competent
jurisdiction,
through
the
payment
of
monetary
opportunity
to
cure.
Dave
&
Busters
chose
not
to
cure
into
litigation.
White
Flint
had
already
elected
to
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 23 of 29
facilities
elected
to
for
pursue
as
its
long
as
possible.
properly-reserved
When
rights
White
under
Flint
the
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 24 of 29
AFFIRMED
24
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 25 of 29
agree
with
the
majoritys
conclusion
that
the
radius
Ante at 13.
Flint
waived
waiver clause.
both
the
radius
restriction
and
the
non-
I.
To survive summary judgment, Dave & Busters needed only to
marshal evidence that would allow a rational factfinder to find
that White Flint waived both the radius restriction and the nonwaiver clause.
Towne Ctr. at Parole, LLC, 25 A.3d 967, 987 (Md. 2011); see also
Smith v. Comair, Inc., 134 F.3d 254, 256 (4th Cir. 1998) (noting
that we view the facts at summary judgment in the light most
favorable to the nonmoving party).
the
opposite
conclusion,
the
This it did.
majority
opinion
In reaching
oversimplifies
to
articulate
why
the
same
25
facts
that
could
support
Appeal: 14-1794
Doc: 37
waiver
of
Filed: 06/11/2015
the
radius
Pg: 26 of 29
restriction
clause
cannot
also
support
Maryland
constitutes
intent.
1977).
law,
whether
waiver
is
the
continued
acceptance
of
question
of
fact-intensive
of
rights
Id.
under
lease
is
not
necessarily
Chertkof is
Id.
receiving
written
consent.
Id.
at
12526.
When
the
Id.
26
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 27 of 29
The trial court held that the lessee breached the lease
provision requiring written consent.
found,
despite
the
lessors
Id. at 126.
relatively
speedy
But it also
filing
of
an
Id. at 127.
of Appeals affirmed based on the acceptance of rent and monthslong negotiations for a new lease.
The facts of this case bear a more-than-passing resemblance
to the Chertkof facts: (1) The Lease included a percentage rent
clause, which gave White Flint an economic interest in Dave &
Busters performance, J.A. 33; (2) Dave & Busters breached a
lease
provision
designed
to
protect
White
Flints
economic
Appeal: 14-1794
Doc: 37
Filed: 06/11/2015
Pg: 28 of 29
law
provides
Ante at 14.
that
the
According to the
Again, I disagree.
waiver
of
non-waiver
clause may be implied from the very actions which imply waiver
of the condition precedent.
at 985.
J.A. 66.
clause, Dave & Busters need only put forward facts showing that
White Flint waived some right by failing to complain.
This it
can do.
As the majority opinion observed, The Court of Appeals of
Maryland defines waiver as the intentional relinquishment of a
known right, or such conduct as warrants an inference of the
relinquishment
of
such
right.
28
Food
Fair
Stores,
Inc.
v.
Appeal: 14-1794
Doc: 37
Blumberg,
Filed: 06/11/2015
200
A.2d
166,
172
Pg: 29 of 29
(Md.
1964).
This
precisely
the
radius
restriction
for
more
than
six
years.
II.
Both
decisions.
Dave
&
Busters
and
White
Flint
made
business
to not enforce the radius restriction for more than six years.
To be sure, these business decisions are subject to contractual
agreement.
But
Maryland law.
that
contractual
agreement
is
subject
to
most
favorable
Dave
&
Busters,
could
support
29