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Bel Air Plaza Limited Partnership v. Ross Dress for Less, Inc.

United States District Court, D. Maryland

March 22, 2016

BEL AIR PLAZA LIMITED PARTNERSHIP
v.
ROSS DRESS FOR LESS, INC.

MEMORANDUM

DATE CATHERINE C. BLAKE, UNITED STATES DISTRICT JUDGE

This dispute arises from water damage in a store leased by Ross Dress for Less, Inc. (“Ross”) from Bel Air Plaza Limited Partnership (“Bel Air”). Bel Air filed a declaratory judgment action in the Circuit Court for Harford County, Maryland. (Compl., ECF No. 2). Ross timely removed the suit to this court and filed a counterclaim. (Answer & Countercl., ECF No. 7). Pending before the court is Bel Air’s motion for summary judgment on its declaratory judgment action and Ross’s counterclaim. (Mot. Summ. J., ECF No. 13). Ross opposed this motion, requested additional discovery, and moved to extend the dispositive motions deadline. (Opp’n Mot. Summ. J., ECF No. 19; Mot. Extend Dispositive Mots. Deadline, ECF No. 22). The court finds oral argument unnecessary to resolve the issues. See Local R. 105.6 (D. Md. 2014). For the reasons outlined below, Bel Air’s motion for summary judgment will be granted, and Ross’s motion for an extension of the dispositive motions deadline will be denied.

BACKGROUND

Ross entered into a lease with Bel Air, effective November 22, 2002, for a retail space (“the store”) in Bel Air Plaza, a shopping center located in Harford County, Maryland. (Mot. Summ. J., Ex. A, Lease 1 § 1.1, ECF No. 13-3). In 2003, Ross hired a contractor to install Azrock Vinyl Composition Tile (“VCT flooring”) on top of the store’s existing concrete floor slabs. (Mot. Summ. J., Ex. E, Construction Plans, ECF No. 13-7).

Ross’s Construction Plans

Ross’s construction plans instructed the contractor to seal the floor slabs with a moisture control system prior to installing the VCT flooring:

NEW CONCRETE IS TO BE SEALED WITH CRETESEAL CS2000 SEALER (10 YR. WARRANTY) APPLIED IN ACCORDANCE WITH MANUFACTURERS INSTRUCTIONS. THE CS2000 2 DAY SYSTEM IS TO BE USED ON EXISTING SLABS WITH PRIOR CONTAMINATES, RESIDUES AND OTHER DEFECTS THAT MAKE IT UNSUITABLE FOR TILE APPLICATION. FURTHER, SLABS MUST BE DESIGNED AND PREPARED TO TEST AND MAINTAIN MOISTURE VAPOR EMISSIONS AT OR BELOW 3-LBS PER 1000 SF PER 24-HRS USING THE CALCIUM CHLORIDE METHOD.

(Construction Plans, ECF No. 13-7) The plans also instructed the contractor to “follow [the] Azrock installation manual” when installing the VCT flooring. Id. The Azrock manual provided, in relevant part, “[a]ny surface materials such as . . . adhesive residues, etc., must be removed.” (Mot. Summ. J., Ex. F, Azrock Manual, ECF No. 13-8).

Lease Obligations

Ross and Bel Air’s respective maintenance and repair obligations are laid out in Article 11 of the lease. Under this Article, Bel Air has the following responsibilities:

Landlord shall, at its sole cost and expense (not passed through to Tenant as a Common Area Charge), be responsible for correcting all defects in Landlord’s (or Landlord’s contractor’s) construction of the Store. Further, Landlord, at Landlord’s sole cost and expense (not passed through to Tenant as a Common Area Charge) shall maintain, repair and replace, in good and sightly condition consistent with other similar shopping centers in the Baltimore, Maryland metropolitan area, the foundation, floor slab, [and] flooring (to the extent damaged by slab movement or roof leaking) . . . .

(Lease 39 § 11.2.1, ECF No. 13-3).

Further, the lease provides that Bel Air “shall maintain and repair any damage or defects in any part of the Store caused by the acts or omissions of Landlord, its agents or contractors (and not caused by the acts or omissions of Tenant, its agents or contractors), regardless of which party has the maintenance obligation under this Article 11.” Id. Ross is obligated to “maintain the interior of the Store” and must “maintain and repair any damage in any part of the Shopping Center caused by the acts or omissions ...


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