Wesco, Inc. v. Hay-Now, Inc., HAY-NO

Decision Date17 July 1992
Docket NumberNo. 91-238,HAY-NO,INC,91-238
Citation159 Vt. 23,613 A.2d 207
PartiesWESCO, INC. v., John P. Hayes, Pamela Hayes, Kentucky Fried Chicken of Burlington, Inc. and John P. Hanzas.
CourtVermont Supreme Court

Craig Weatherly and Charles T. Shea, Gravel and Shea, Burlington, for plaintiff-appellant.

Ronald W. Kish, Ward, Kish & Babb, South Burlington, for defendants-appellees Hay-Now, Inc. and Hayes.

Thomas E. McCormick and Harrison B. Lebowitz, McNamara, Fitzpatrick, McCormick & Mertz, Burlington, for defendants-appellees Kentucky Fried Chicken and Hanzas.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Plaintiff, Wesco, Inc. (Wesco) appeals from summary judgment in its declaratory judgment action seeking construction of the terms of its lease agreement with defendant, Hay-Now, Inc. (Hay-Now). We affirm.

Wesco is the successor in interest to Northern Terminals, Inc. (NTI), which, on January 7, 1969, leased land located at 295 Shelburne Road in Burlington to Kentucky Fried Chicken of Burlington, Inc. (KFC) and John P. Hanzas (Hanzas). On that same date, NTI leased property adjacent to the KFC/Hanzas parcel, at 315 Shelburne Road, to Tom Simoneau (Simoneau), who thereafter operated a gasoline station and convenience store at that address. KFC/Hanzas and Simoneau shared rights to a common parking area adjacent to their respective businesses. Hay-Now is successor in interest to KFC/Hanzas.

On January 25, 1978, NTI informed Simoneau of its intention to sell the property at 315 Shelburne Road to the Justin Corporation, whereupon Simoneau sued NTI, seeking to enjoin the prospective sale on the grounds that it violated a provision in his lease that gave him the right of first refusal in the event that NTI decided to sell the property. The Chittenden Superior Court issued a preliminary injunction that prevented the sale and that remained in effect through the conclusion of the litigation on September 28, 1984. On that date, the court permanently enjoined the sale on the grounds that NTI had breached the first refusal provision of its lease with Simoneau.

Meanwhile, on April 28, 1980, prior to resolution of the Simoneau/NTI litigation, KFC/Hanzas and NTI, predecessors in interest to Hay-Now and Wesco, respectively, signed a stipulation that permitted KFC/Hanzas to construct an addition to its restaurant at 295 Shelburne Road in exchange for a rent increase, to one thousand dollars ($1000) per month. The parties recognized in that stipulation that "rights to the common parking areas are held by Tom Simoneau pursuant to a Lease with the herein Lessor ... and that said rights could interfere with the ability of the herein Lessees to construct the addition to the existing building."

They therefore stipulated that if Simoneau's opposition "or any other encumbrance ... [that] interferes with the ability of the Lessees to construct such addition or alteration is not removed by August 1, 1984, ... then the Lessees' rent shall abate to the sum of $650.00 per month until such encumbrance is removed." The parties further stipulated that "[i]f any such encumbrance is not removed by August 1, 1985, then the rent shall continue abated at the sum of $650.00 per month until the Lease ends in accordance with its terms."

On July 15, 1980, pursuant to their shared rights in the common parking area, KFC/Hanzas requested from Simoneau permission to construct the aforementioned addition. Simoneau refused because he was involved in litigation with NTI concerning the prospective sale of 315 Shelburne Road. As of August 1, 1984, Simoneau remained opposed to the expansion. Hence, pursuant to the stipulation signed by KFC/Hanzas and NTI on April 28, 1980, KFC/Hanzas paid the abated rental amount of $650 per month, which NTI accepted without objection. Simoneau still occupied 315 Shelburne Road and still opposed the expansion as of August 1, 1985, so, again pursuant to stipulation, KFC/Hanzas continued to pay NTI $650 per month after that date and NTI continued to accept that amount without objection.

On September 5, 1986, NTI sold 295 Shelburne Road to Wesco. Between October 1 1986 and April 1, 1988, KFC/Hanzas paid Wesco rent in the amount of $650 per month. In May of 1988, however, Wesco concluded that it was entitled to receive from Hay-Now, the successor in interest to KFC/Hanzas, rent in the amount of $1,000 per month, the amount that KFC/Hanzas and NTI had agreed would be due if encumbrances to the expansion of 295 Shelburne Road were removed by August 1, 1985.

On September 11, 1989, Wesco...

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    ...issues of material fact, and second, the moving party must be entitled to judgment as a matter of law. Wesco, Inc. v. Hay–Now, Inc., 159 Vt. 23, 26, 613 A.2d 207, 209 (1992). Summary judgment is appropriate only when the materials before the court show that there is no genuine issue as to a......
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