{ "id": 9443180, "name": "SOUTHPARK MALL LIMITED PARTNERSHIP, Plaintiff v. CLT FOOD MANAGEMENT, INC., and FLAMER'S OF SOUTHPARK, INC., Defendants", "name_abbreviation": "Southpark Mall Ltd. Partnership v. CLT Food Management, Inc.", "decision_date": "2001-04-03", "docket_number": "No. COA00-246", "first_page": "675", "last_page": "680", "citations": [ { "type": "official", "cite": "142 N.C. App. 675" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "353 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168782 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0501-01" ] }, { "cite": "369 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "115", "parenthetical": "citing DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269 (1987)" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525461 ], "year": 1988, "pin_cites": [ { "page": "576", "parenthetical": "citing DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0573-01" ] }, { "cite": "449 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "338 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520195 ], "year": 1993, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0293-01" ] }, { "cite": "346 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "520", "parenthetical": "holding that when a term is not defined in a contract, the presumption is that the term is to be given its ordinary meaning and significance" }, { "parenthetical": "citation omitted" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358560 ], "year": 1986, "pin_cites": [ { "page": "223", "parenthetical": "holding that when a term is not defined in a contract, the presumption is that the term is to be given its ordinary meaning and significance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0216-01" ] }, { "cite": "396 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "331", "parenthetical": "holding that the rules governing interpretation of a lease are the same as those governing interpretation of a contract" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526800 ], "year": 1990, "pin_cites": [ { "page": "354", "parenthetical": "holding that the rules governing interpretation of a lease are the same as those governing interpretation of a contract" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0349-01" ] }, { "cite": "473 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "375", "parenthetical": "citation omitted" }, { "page": "376" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914039 ], "year": 1996, "pin_cites": [ { "page": "514", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0511-01" ] }, { "cite": "145 L. Ed.2d 1072", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 S. Ct. 1161", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "539 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 832", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132139, 132303, 132023, 132084, 132247 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0832-03", "/nc/350/0832-05", "/nc/350/0832-04", "/nc/350/0832-01", "/nc/350/0832-02" ] }, { "cite": "516 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143188 ], "year": 1999, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0116-01" ] }, { "cite": "445 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "422-23" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134986 ], "year": 1994, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0510-01" ] } ], "analysis": { "cardinality": 561, "char_count": 11377, "ocr_confidence": 0.763, "pagerank": { "raw": 1.2122807378076837e-07, "percentile": 0.5962299346409772 }, "sha256": "665b3d8b2eb099170d42aef215230aff97436b73d815690363bfe4e4982865f5", "simhash": "1:29295636073dbc40", "word_count": 1896 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TIMMONS-GOODSON concur." ], "parties": [ "SOUTHPARK MALL LIMITED PARTNERSHIP, Plaintiff v. CLT FOOD MANAGEMENT, INC., and FLAMER\u2019S OF SOUTHPARK, INC., Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nDefendants, CLT Food Management, Inc. (\u201cCLT\u201d) and Flamer\u2019s of Southpark, Inc. (\u201cFlamer\u2019s\u201d) (collectively \u201cdefendants\u201d), appeal the trial court\u2019s entry of judgment awarding plaintiff, Southpark Mall Limited Partnership (\u201cSouthpark\u201d), possession of the premises at issue. We affirm the trial court\u2019s order for the reasons stated below.\nSouthpark owns Southpark Mall, a shopping complex in Charlotte, North Carolina. On 28 January 1992, Southpark\u2019s predecessor-in-interest executed a written lease agreement (\u201cthe lease\u201d) with Flamer\u2019s. The lease provided Flamer\u2019s with space in Southpark Mall\u2019s food court for operation of a fast-food restaurant. Flamer\u2019s subleased the premises to CLT with landlord\u2019s consent in September 1993. Flamer\u2019s remained liable under the lease in the event of default by CLT.\nThe lease required CLT to make monthly rental payments to Southpark on the first day of each month. Section 24.1 of the lease addressed CLT\u2019s ability to cure a default, and Southpark\u2019s remedy for CLT\u2019s failure to cure:\nIf at any time Tenant shall fail to remedy any default in the payment of any amount due and payable under this lease for five (5) davs after notice . . . then in any such event Landlord may, at Landlord\u2019s option and without limiting Landlord in the exercise of any other right or remedy Landlord may have on account of such default, and without any further demand or notice . . . terminate this lease by giving Tenant written notice of its election to do so, as of a specified date not less than thirty (30) days after the date of giving such notice.\n(emphasis supplied). The lease further provided that any notice required by the lease \u201cshall be deemed to have been given, made or communicated, as the case may be, on the date the same was deposited in the United States mail. . . .\u201d\nCLT defaulted under the lease by failing to pay the rent due 1 July 1999. On 2 July 1999, Southpark sent a letter by certified mail to CLT giving notice of the default. The letter stated that if Southpark did not receive CLT\u2019s rent payment \u201cwithin five (5) days after the date of this notice,\u201d it could terminate the lease \u201cwithout giving tenant any further notice or opportunity to cure such default.\u201d CLT received the notice on 6 July 1999.\nCLT did not cure its default on 7 July 1999, within five days of Southpark\u2019s 2 July 1999 notice letter. CLT did pay July rent to Southpark on 9 July 1999, seven days after notice of the default. On 12 July 1999, Southpark notified CLT and Flamer\u2019s that the lease terminated effective 31 August 1999, due to CLT\u2019s failure to timely cure its 1 July 1999 default. CLT refused to vacate the premises at Southpark Mall, and became a holdover tenant.\nOn 8 September 1999, Southpark filed a Complaint in Summary Ejectment against CLT and Flamer\u2019s, seeking immediate possession of the leased premises. The matter was heard at a non-jury trial on 6 December 1999. On 17 December 1999, the trial court entered judgment in favor of Southpark. The trial court found that Section 24.1 of the lease unambiguously required that CLT remedy any default \u201cwithin five days after notice.\u201d The trial court found that CLT failed to timely pay its monthly rent on 1 July 1999, and that Southpark notified CLT of the default on 2 July 1999. The trial court concluded that CLT defaulted under the lease, and that it failed to cure its default by 7 July 1999, as required by the lease. The trial court entered an order of ejectment awarding Southpark immediate possession of the premises. CLT and Flamer\u2019s appeal.\nCLT and Flamer\u2019s assign error to the trial court\u2019s entry of summary ejectment in favor of Southpark. Defendants concede that CLT defaulted under the lease by failing to pay rent on 1 July 1999. They also concede that Southpark gave notice of the default effective 2 July 1999, as provided by the lease. See Main Street Shops, Inc. v. Esquire Collections, Ltd., 115 N.C. App. 510, 515, 445 S.E.2d 420, 422-23 (1994) (where lease itself provides that notice is effective upon deposit in the mail, \u201c[b]y the very terms of the lease, therefore, notification is accomplished once an appropriate writing is addressed and deposited in the mail as specified; neither receipt nor proof of receipt are required.\u201d).\nDefendants argue that the phrase \u201cfive (5) days after notice\u201d contained in section 24.1 of the lease is ambiguous, and therefore must be construed in favor of CLT and Flamer\u2019s. Defendants assert that the phrase should be construed as \u201cbusiness days,\u201d and that CLT\u2019s 9 July 1999 payment timely cured the default within five business days. We disagree, and affirm the trial court\u2019s entry of judgment and order of ejectment.\nWhere the language of a contract is clear, the contract must be interpreted as written. Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 120, 516 S.E.2d 879, 882, disc. review denied, 350 N.C. 832, 539 S.E.2d 288 (1999), cert. denied, 120 S. Ct. 1161, 145 L. Ed.2d 1072 (2000) (citation omitted). As with contracts, the rule of interpretation for leases is that a word in a lease \u201cshould be given its natural and ordinary meaning.\u201d Charlotte Housing Authority v. Fleming, 123 N.C. App. 511, 514, 473 S.E.2d 373, 375 (1996) (citation omitted).\nIn Charlotte Housing Authority, we noted that where a nontechnical word is not defined in a lease, we must interpret the word consistent with its plain dictionary meaning:\nThe word \u2018guest\u2019 is not defined in Ms. Fleming\u2019s lease; accordingly, it should be given its natural and ordinary meaning. See, Martin v. Ray Lackey Enterprises, 100 N.C. App. 349, 354, 396 S.E.2d 327, 331 (1990) (holding that the rules governing interpretation of a lease are the same as those governing interpretation of a contract); E.L. Scott Roofing Co. v. State of N.C., 82 N.C. App. 216, 223, 346 S.E.2d 515, 520 (1986) (holding that when a term is not defined in a contract, the presumption is that the term is to be given its ordinary meaning and significance).\nId. We noted that Webster\u2019s Third New International Dictionary defines \u201c \u2018guest\u2019 \u201d as \u201c \u2018a person to whom hospitality is extended, .. . one invited to participate in some activity at the expense of another.\u2019 \u201d Id. (citation omitted). Thus, where the party at issue was not on the leased premises by way of invitation, he was not a \u201cguest\u201d as contemplated by the lease. Id. at 515, 473 S.E.2d at 376; see also, IRT Property Co. v. Papagayo, Inc., 338 N.C. 293, 296, 449 S.E.2d 459, 461 (1993), (non-technical words in a lease must be interpreted consistent with ordinary meaning).\nBlack\u2019s Law Dictionary defines \u201cday\u201d as \u201c[a]ny 24-hour period; the time it takes the earth to revolve once on its axis.\u201d Black\u2019s Law Dictionary 402 (7th ed. 1999). The American Heritage College Dictionary defines \u201cday\u201d as \u201c[t]he period of light between one dawn and nightfall; the interval from sunrise to sunset.\u201d The American Heritage College Dictionary 354 (3d ed. 1997). The plain meaning of \u201cday\u201d does not encompass anything more than the regular passage of twenty-four hours. Its ordinary meaning does not convey any information as to when the average business is open for operation.\nDefendants failed to cite any precedent from this State holding that the term \u201cdays\u201d in a lease agreement is ambiguous as a matter of law, or that the word should be construed beyond its ordinary usage to mean \u201cbusiness days.\u201d Defendants have also failed to show any evidence that the parties to the lease intended the word \u201cdays\u201d to mean \u201cbusiness days.\u201d Hassan Aris, CLT\u2019s Business Manager, was defendants\u2019 sole witness at trial. Aris testified that he \u201cunderstood that [he] had to deliver [the rent] check by July 7,\u201d and that delivery on that date \u201cwas required under the lease.\u201d\n\u201cWhen the language of a contract is plain and unambiguous, its construction is a matter of law for the court.\u201d Marsh Realty Co. v. 2420 Roswell Ave., 90 N.C. App. 573, 576, 369 S.E.2d 113, 115 (1988) (citing DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269 (1987)). We hold, consistent with the plain and ordinary meaning of the lease language, that section 24.1 of the lease unambiguously required defendants to cure CLT\u2019s default within five calendar days of Southpark\u2019s 2 July 1999 notice letter.\nAssuming, arguendo, that the lease were construed to mean \u201cbusiness days,\u201d CLT\u2019s 9 July 1999 payment was untimely. Southpark Mall was open for business from Friday, 2 July 1999, through Wednesday, 7 July 1999, five \u201cbusiness\u201d days following Southpark\u2019s notice of default.\nSouthpark\u2019s letter, mailed 2 July 1999, did not specifically state that CLT\u2019s July rent must be received by 7 July 1999. Defendants argue that Southpark\u2019s letter did not give CLT proper notice of when a cure was due. This argument is unpersuasive. Southpark\u2019s letter unambiguously stated that if Southpark did not receive CLT\u2019s payment \u201cwithin (5) days after the date of this notice,\u201d Southpark could terminate the lease \u201cwithout giving tenant any further notice or opportunity to cure such default.\u201d If CLT was confused by Southpark\u2019s notice letter, CLT could have consulted the lease provisions to determine the period for curing a default.\nDefendants attempt to justify CLT\u2019s failure to cure the default prior to 9 July 1999 by stating that, \u201c[w]hen a representative of CLT received the Notice Letter on Tuesday, July 6, 1999, he believed that he had five \u2018business days\u2019 from the date of the Notice Letter (or until July 9, 1999) to cure the default.\u201d CLT further argues as excuse that it could not prepare Southpark\u2019s rent check until 9 July 1999 \u201cbecause its bookkeeper was out of the office until that date.\u201d Southpark is not responsible for CLT\u2019s failure to inform its representatives about the terms of its own lease, nor for CLT\u2019s failure to maintain bookkeeping services to timely pay its rentals.\nThe trial court\u2019s entry of judgment and order of ejectment in favor of Southpark is hereby affirmed.\nAffirmed.\nJudges MARTIN and TIMMONS-GOODSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Robinson, Bradshaw & Hinson, P.A., by Douglas M. Jarrell, for plaintiff-appellee.", "Parker, Poe, Adams & Bernstein, L.L.P., by John W. Francisco; John T. Daniel, for defendants-appellants." ], "corrections": "", "head_matter": "SOUTHPARK MALL LIMITED PARTNERSHIP, Plaintiff v. CLT FOOD MANAGEMENT, INC., and FLAMER\u2019S OF SOUTHPARK, INC., Defendants\nNo. COA00-246\n(Filed 3 April 2001)\nLandlord and Tenant\u2014 summary ejectment \u2014 commercial lease\nThe trial court did not err by its entry of summary ejectment in favor of plaintiff based on defendants\u2019 failure to pay rent within five days after notice as contained in section 24.1 of the commercial lease, because: (1) the plain and ordinary meaning of the lease language unambiguously required defendants to cure the default within five calendar days of plaintiffs 2 July 1999 notice letter; (2) defendants failed to cite any precedent from this state holding that the term \u201cdays\u201d in a lease agreement is ambiguous as a matter of law or that the word should be construed beyond its ordinary usage to mean \u201cbusiness days;\u201d (3) defendants failed to show any evidence that the parties to the lease intended the word \u201cdays\u201d to mean \u201cbusiness days;\u201d and (4) even if the lease was construed to mean \u201cbusiness days,\u201d the payment was still untimely.\nAppeal by defendants from judgment entered 17 December 1999 by Judge Fritz Y. Mercer in Mecklenburg County District Court. Heard in the Court of Appeals 22 February 2001.\nRobinson, Bradshaw & Hinson, P.A., by Douglas M. Jarrell, for plaintiff-appellee.\nParker, Poe, Adams & Bernstein, L.L.P., by John W. Francisco; John T. Daniel, for defendants-appellants." }, "file_name": "0675-01", "first_page_order": 705, "last_page_order": 710 }