Circuit Court for Baltimore City Case No. 24-C-16-005889
Arthur, Leahy, Kenney, James A., III (Senior Judge, Specially
Gump Shrimp Co. Restaurants, Inc. ("Bubba Gump"),
filed suit against AAC HP Realty, LLC ("AAC"),
alleging that AAC breached its obligation to maintain the
common areas under a comprehensive written lease between the
parties. After a bench trial, the Circuit Court for Baltimore
City found that AAC breached the lease and awarded Bubba Gump
damages for certain out-of-pocket costs and attorney's
fees, as provided in the lease. The circuit court, however,
denied Bubba Gump's demand for lost profits, because
Bubba Gump had failed to prove those damages with reasonable
certainty. Nonetheless, the circuit court went on to award
Bubba Gump an "equitable rent reduction" on a
quasi-contractual claim for unjust enrichment.
appealed the award of damages on the claim for unjust
enrichment. We shall reverse that aspect of the judgment.
and Procedural History
recount the pertinent facts in the light most favorable to
Bubba Gump, the party that prevailed at trial. Green v.
McClintock, 218 Md.App. 336, 341 (2014) (citing L.W.
Wolfe Enters., Inc. v. Maryland Nat'l Golf, L.P.,
165 Md.App. 339, 343 (2005)).
spring of 2011, Bubba Gump, a seafood restaurant owned by
Landry's, Inc.,  entered into a lease at Harborplace in
Baltimore City with AAC's predecessor. AAC acquired its
interest in the lease in November 2012, about six months
after Bubba Gump began operating at Harborplace.
lease is over fifty pages in length, with several exhibits.
It includes many provisions specifically defining the various
rights and obligations of the landlord and tenant.
4 of the lease sets forth Bubba Gump's obligation to pay
a "Minimum Annual Rental," in twelve, equal monthly
installments, for its use and occupancy of the leased
premises. The Minimum Annual Rental exceeds $1 million, or
$83, 000 a month. The rent is to be paid "without
deduction or set-off."
Minimum Annual Rental includes the "Joint Use and
Operating Expenses" that Bubba Gump is required to pay
under Article 17 of the lease. According to the executive who
negotiated the lease on Bubba Gump's behalf, Bubba Gump
contracted to include these expenses in the fixed monthly
rent, as opposed to paying a lower monthly rent and separate
common-area maintenance charge. Bubba Gump describes those
payments as advance payments in exchange for the
landlord's commitment to maintain the common areas, which
are termed the "Joint Use Areas" under the lease.
17 of the lease requires AAC to keep the Joint Use Areas in
"good order and repair." Under Article 17, AAC,
"in its sole and absolute discretion," may
appropriate any portion of the monthly rent toward the
expenses of maintaining the Joint Use Areas. Those expenses,
which are termed "Operating Expenses,"
"consist of all expenditures relating to operating,
managing, equipping, policing, protecting, lighting,
repairing, cleaning, replacing and maintaining the Joint Use
Areas in the same or improved condition as when originally
after it began its operations at Harborplace in 2012, Bubba
Gump observed that the landlord was not maintaining the
property in good order and repair. At trial, the restaurant
presented ample evidence of poor conditions in the common
areas, including water leaks, hanging wires, dirty bathrooms,
broken concrete, chipping and peeling paint, escalators that
did not work, planters containing trash and debris, rusted
metal stairs, and rodent infestation.
first, Bubba Gump continued to pay its rent, but it implored
AAC to fulfill its obligation to maintain the property in
good order and repair. When Harborplace remained in a
substandard state, and when the restaurant's revenue fell
below expectations, Bubba Gump asked AAC to reduce its
monthly rent. The parties eventually agreed to a temporary,
three-month reduction of the monthly rent, which they
memorialized in an amendment to the lease in March 2015.
unsatisfied with Harborplace's condition, Bubba Gump
began to withhold its rent payments in the fall of 2015.
Although Bubba Gump eventually paid all of the back rent in
September 2016, it sent a letter to AAC claiming that the
landlord had breached the lease because of its failure to
maintain the property.
November 7, 2016, Bubba Gump commenced this litigation. In a
five-count amended complaint, Bubba Gump asserted claims for
breach of contract, breach of the covenant of quiet
enjoyment, and unjust enrichment, a request for declaratory
relief, and a claim for specific performance.
a six-day bench trial, the trial court heard testimony from
several witnesses regarding the conditions of Harborplace
during the lease term. Photographs documenting the
deterioration of the shopping center were admitted into
evidence as well. Bubba Gump's expert witness testified
about the poor state of the property and its effect on foot
traffic and sales. Bubba Gump principally claimed to have
suffered lost profits of approximately $2.5 million as a
result of AAC's breach of the obligation to keep the
common areas in "good order and repair."
14, 2018, the circuit court announced its decision. The court
agreed that AAC had breached its obligations to keep the
common areas in good order and repair and to police and
protect Harborplace. The court awarded Bubba Gump $32, 300
for out-of-pocket security costs because of AAC's breach
and $5, 000 in attorney's fees as the prevailing party,
pursuant to Article 28 of the lease. The court, however,
declined to award lost profits, because "too many