UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2335
BV RETAIL, LLC,
Plaintiff – Appellee,
v.
JAMES M. DONNELLY; STACY D. TAKATS
Defendants - Appellants.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. David Shepardson
Cayer, Magistrate Judge. (3:12-cv-00348-DSC)
Submitted: August 28, 2014 Decided: September 12, 2014
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Fred M. Wood, Jr., C. Bailey King, Jr., Timothy P. Lendino,
SMITH MOORE LEATHERWOOD LLP, Charlotte, North Carolina, for
Appellant. William R. Terpening, Matthew S. DeAntonio,
Jonathan E. Schulz, NEXSEN PRUET, PLLC, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury returned a verdict of $126,908.27 against James
M. Donnelly and Stacy D. Takats (the Donnellys). The jury
determined that a Termination of Lease (Termination Agreement)
did not extinguish the Donnellys’ obligations as guarantors of
a lease between BV Retail, LLC (BV Retail) and Emerson Joseph,
LLC (Emerson Joseph). The Donnellys now appeal, arguing that
the district court erred when it denied their post-verdict
judgment as a matter of law. * We affirm.
The Donnellys were owners of Emerson Joseph, which
leased space in a shopping center owned by BV Retail. As part
of the transaction, the Donnellys signed a Guaranty of Lease
(Guaranty), in which they personally guaranteed payment of
Emerson Joseph’s rent. Emerson Joseph encountered financial
difficulties and fell behind on its rent. Subsequently, Emerson
Joseph and BV Retail executed the Termination Agreement.
BV Retail sued to enforce the Guaranty, claiming that
the Donnellys were liable as guarantors for rent and other fees.
The Donnellys moved for summary judgment, asserting that the
Termination Agreement plainly extinguished their obligations
under the Guaranty. The district court ruled that a genuine
*
Although BV Retail disputes that such a post-verdict
motion was made, the district court docket sheet reflects that
it was. We accordingly will review the denial of the motion.
2
issue of material fact existed on this issue. Accordingly, the
court denied the Donnellys’ motion for summary judgment.
Following trial, the jury determined that the
Termination Agreement did not extinguish the Donnellys’
obligations. The verdict of $126,908.27 represented primarily
the amount of unpaid rent accrued prior to execution of the
Termination Agreement. Following the verdict, the Donnellys
moved for judgment as a matter of law, again asserting that the
Termination Agreement clearly and unambiguously ended their
obligations under the Guaranty. The district court denied the
motion.
On appeal, the Donnellys claim that the district court
erred when it denied their motion. “We review de novo the legal
conclusions upon which the district court’s denial . . . [was]
premised.” Belk, Inc. v. Meyer Corp. U.S., 679 F.3d 146, 164
(4th Cir. 2012).
Application of basic contract principles compels our
conclusion that the district court’s ruling was correct. The
Termination Agreement provided, “As of October 28, 2011 . . . ,
the Lease shall be terminated and the Leased Premises shall be
surrendered to Landlord by Tenant. Accordingly, neither
Landlord nor Tenant shall have any further duties, obligations,
or liabilities under the Lease from and after the Termination
Date.” Further, various provisions of the Guaranty provide that
3
the Donnellys’ liability as guarantors would survive an event
such as a lease termination. For instance, the Guaranty states
that it “is a continuing Guaranty, and the liability of the
Guarantor . . . shall in no way be affected, modified or
diminished by reason of . . . any dealings, transactions,
matters or things occurring between the Landlord and Tenant.”
The Guaranty additionally states that its “validity . . . and
the obligations of the Guarantor . . . shall not in any way be
terminated . . . by reason of the termination of the Lease so
long as the Tenant continues to be liable.”
The above passages, construed together, strongly
suggest that Emerson Joseph was released from its obligation
under the Lease for rent accrued after October 28, 2011, but
that Emerson Joseph—and the Donnellys as guarantors—remained
liable for past-due rent. The district court did not err in
concluding that the Termination Agreement did not, as a matter
of law, extinguish the Donnellys’ obligations under the
Guaranty.
We accordingly affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
4