B & P ENTERPRISES v. Overland Equipment Co.

• Citation: 133 Md. App. 583,758 A.2d 1026
• Decision Date: 05 September 2000
• Docket Number: No. 1446,1446
• Parties: B & P ENTERPRISES v. OVERLAND EQUIPMENT COMPANY.
• Court: Court of Special Appeals of Maryland

758 A.2d 1026

133 Md. App. 583

B & P ENTERPRISES v. OVERLAND EQUIPMENT COMPANY.

No. 1446, Sept. Term, 1999.

Court of Special Appeals of Maryland.

September 5, 2000.

Alan W. Margin, Rockville, for Appellant.

Wanda G. Caporaletti, Silver Spring, for Appellee.

Argued before MOYLAN, HOLLANDER and JOHN F. McAULIFFE (Retired, Specially assigned), JJ. HOLLANDER, Judge.

This case requires us to consider a number of issues arising from a commercial leasehold agreement. Overland Equipment Company ("Overland" or "Tenant"), appellee, operates a motor vehicle towing and storage business on premises leased from B & P Enterprises ("B & P" or "Landlord"), appellant.¹ On appeal, B & P challenges the judgment for damages and order for injunctive relief entered in the Circuit Court for Prince George's County in favor of Overland, the plaintiff below, following a two-day bench trial. B & P presents the following issues for our review, which we have rephrased for clarity:

I. Did the court err in awarding relief to appellee in light of appellee's failure to give appellant written notice of default and an opportunity to cure as required by the lease?

II. Was the evidence sufficient to support the award of damages to appellee with respect to the relocation of vehicles, and, if so, did the court use the appropriate measure of damages?

III. Did the court err in awarding appellee attorney's fees?

IV. Did the court err in granting injunctive relief?

A. Did the court err by issuing injunctions prior to appellee's satisfaction of the notice provisions set forth in the lease?

B. Were the terms of injunctive relief supported by the evidence?

C. Is the injunctive relief awarded of such a character that effective enforcement is unreasonably difficult, requiring long-term judicial supervision?

For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings.

FACTUAL BACKGROUND

On August 1, 1996, B & P and Overland entered into a five-year written lease agreement (the "Lease") by which appellant leased the premises located at 11732 to 11736 Annapolis Road in Glenn Dale, Maryland (the "Property") to appellee. The Lease is a printed form containing blanks into which information was typewritten, including the names of the parties and a description of the Property. In addition to the above stated street addresses, the Lease included the following description of the Property:

The entire second floor of the existing [commercial] building, as well as the "fenced-in" area to the left of the building, along with an additional storage lot to on the rear of the property consisting of approx. 10,000+-square feet. (Exact location of the additional 10,000+-square feet to be determined)

The second floor of the office building was used to house Overland's corporate offices. The " `fenced-in' area to the left of the building," which we will refer to as the "Old Lot," was used to store vehicles. The last paragraph of the preprinted form is numbered "15.27," but a second "15.27" was typed in below it.² The typewritten paragraph states:

Landlord reserves the right to relocate Tenant's "fenced-in" storage lot at some future date, should that become necessary, at Landlord's expense.

At trial, James Mills, Overland's president, described the Old Lot as a large, rectangular property covered with crushed stone, illuminated by three halogen lights, which abuts an asphalt parking lot located in front of the commercial building. According to Mills, the gate to the Old Lot opened onto the parking lot, and Overland's drivers had "easy access" to the asphalt parking lot. He explained: "[Y]ou could come in off of the highway, and pull upon the asphalt and back straight into the [Old Lot]. There was [sic] no grades, no hills, no nothing [sic] was in the way." At the relevant time, the Old Lot had chain link fencing on all sides. Mills also stated that Prince George's County required Overland "to have a privacy fence" around the Old Lot. The "privacy fence" consisted of wood slats attached to the chain link fence.

The Lease also referred to the "additional storage lot" (the "Additional Lot"). Mills explained that its location was "to be determined." According to Mills, these terms were included in the Lease to allow for subsequent expansion of Overland's vehicle storage capacity.

Beginning in October 1997, Overland began to use "some space in the rear" of the commercial building for vehicle storage. On October 24, 1997, the County issued a citation to Overland for parking cars on that space without the appropriate permit. Thereafter, Overland began to pursue a use and occupancy permit in order to use the Additional Lot. Mills claimed that Overland's efforts to secure the requisite permit were frustrated by B & P's failure to put stakes in the ground demarcating the Additional Lot.

Between August 1996, when the parties executed the Lease, and May 1998, the State Highway Administration of the Maryland Department of Transportation purchased a portion of the Annapolis Road frontage, which evidently included a portion of the Old Lot. In May 1998, Ted Webersinn, an independent contractor hired by B & P, met with Mills at the Property. According to Mills, Webersinn indicated that he was representing the Landlord and that he was going to be responsible for moving the "fenced-in" area as provided in ¶ 15.27 of the Lease.

In June 1998, however, Mills had a conversation with Harvey Blonder, a B & P representative, which changed his view of the prior discussion with Webersinn. The following trial colloquy is relevant:

[MILLS:] ... I explained [to Blonder] what Webersinn told me, and how we thought we had something working, and [Blonder] told me that Ted Webersinn was not an employee, had no ability to make any decisions for him, was simply a contractor, and that nothing—that Ted Webersinn had no grounds at all, it was totally irrelevant to not pay attention to it, that he could not speak for Blonder or [B & P].

[APPELLANT'S COUNSEL:] At that point, what did he think about the agreement that you and Mr. Webersinn had worked out?

[MILLS:] I was told it didn't count. It was a wasted effort; that Webersinn had no ability to make any decision.

Nevertheless, in a letter dated September 16, 1998, from Blonder to Mills, Blonder said, in pertinent part:

I have been advised by Ted Webersinn that a contract has been ratified for the moving of your present lot to the designated area in the rear of the building. This entire effort will be coordinated by Ted with your office. He will advise your office when the cars are to be moved from the upper lot by you, at your expense, and he has further advised that your cars will not be protected by a fence for the couple of days it takes to do this job. Therefore, you will have to make other arrangements to protect these cars during this time.

At trial, Mills indicated that he did not know what contract Blonder meant. Moreover, he did not "have any idea what [Blonder] and [Webersinn] are doing at this point." When asked by appellee's counsel what he did upon receipt of Blonder's letter, Mills responded that he did "[a]bsolutely nothing" in light of Blonder's previous contention that Webersinn was not authorized to act on B & P's behalf.

In a subsequent letter to Mills, dated September 25, 1998, Blonder stated:

Please be advised that the removal of the fence around your storage lot will begin on Wednesday, September 30 at 8:30 am, starting at the front portion of the [Old Lot]. As indicated in my previous letter ... you will need to move the cars from the upper lot and you will need to provide protection for your cars during this moving process.

In response to the second letter, Mills contacted Overland's attorney, John Barr,³ because, in his view, Overland's "County towing [license] requires that the cars be in a restricted confined area, under certain guidelines, in a fenced in lot, lights and so forth." Barr responded to Blonder's letter of September 25, 1998, by a facsimile the same day. Barr's letter of September 25, 1998, stated, in part:

Because it believes that B & P has announced these unilateral actions without honoring its lease obligations, Overland has instructed me to take such steps and actions as are necessary to protect their interests.

Accordingly, be advised the [sic] unless these disputes are settled and resolved, in writing, by the parties hereto, I will on September 28, 1998 ... file a Petition for Ex Parte Injunctive Relief in the appropriate court of the State of Maryland in Prince George's County.

Thereafter, on September 28, 1998, Overland filed suit in the circuit court seeking, inter alia, a temporary injunction prohibiting B & P from removing the fencing surrounding the Old Lot, issuance of a show cause order, a declaratory judgment establishing the rights and obligations of the parties to the Lease, and costs. By "Order to Show Cause" dated September 29, 1998, the circuit court denied Overland's request for a temporary injunction, but required B & P to show cause by November 6, 1998.

In the meantime, on October 2, 1998, Blonder sent Mills another letter concerning the proposed move, which stated:

We were not able to start our Project as of September 30, 1998, due to the fact that we could not get the temporary fencing on that date. Therefore, the temporary fencing will be done on Monday, October 5, 1998 beginning at 8:00 a.m., and shortly thereafter we will start pulling down the present fence to relocate it.

Please be further advised that in addition the 10,000 square feet is also available.

Mills testified that temporary fencing was installed around an interim lot on the premises, which was to function as the "fenced-in" area pending the move of the permanent fence (the "Interim Lot"). Overland employees subsequently moved the vehicles from the Old Lot to the Interim Lot. By facsimile dated October 21, 1998, from Tom Mehl, comptroller of Overland, to...