United States District Court, D. Nevada
ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
case is a contract action in which Plaintiff Boca Park
Marketplace Syndications Group, LLC (“Boca Park”)
alleges that a co-tenancy clause in its lease agreement with
Defendant Ross Dress for Less, Inc. (“Ross”)
constitutes an unenforceable liquidated damage. The Court
held an eight-day bench trial in this case from April 30,
2018 through May 10, 2018. The Court rules in favor of Ross
and against Boca Park based on the following findings of fact
and conclusions of law.
April 18, 2016, Boca Park filed a Complaint against Ross in
the Eighth Judicial District Court in Clark County, Nevada.
ECF No. 1-2. Boca Park asserts the following causes of
action: (1) declaratory judgment, declaring that the
co-tenancy provisions in the commercial lease at issue
constitute the imposition of a penalty and are unenforceable,
and (2) breach of contract. Ross filed a Notice of Removal on
the grounds of diversity jurisdiction on May 27, 2016. ECF
13, 2016, Ross filed an Answer and Counterclaim to the
Complaint. ECF No. 6. Ross brings its counterclaim seeking a
declaratory judgment, declaring that the co-tenancy
provisions in the lease and lease amendment, together with
the Substitute Rent provision contained therein, were
negotiated at arm's length between the parties of equal
standing and are enforceable. Boca Park filed an Answer to
the Counterclaim on June 20, 2016. ECF No. 9.
2017, Boca Park and Ross each filed Motions for Summary
Judgment. ECF Nos. 69, 72, 84. The Court heard oral argument
on the motions on March 20, 2018. ECF No. 101. In an order
issued March 28, 2018, the Court denied each Motion for
Summary Judgment. ECF No. 103. The Court determined that
factfinding was required for the Court to evaluate whether
the cotenancy provision was a liquidated damages provision
and whether it was enforceable. The Court therefore ordered
that the case proceed to trial.
Court held a pretrial conference on June 7, 2018 and a
calendar call on August 28, 2018. ECF Nos. 108, 134. The
Court conducted a bench trial on September 4, 2018 and heard
closing arguments on October 18, 2018. ECF Nos. 139, 150.
JURISDICTION AND VENUE
Court has diversity jurisdiction pursuant to 28 U.S.C. §
1332, as the parties are citizens of different states and the
amount in controversy exceeds $75, 000. Venue is proper
because the commercial lease agreement at issue relates to
property within Clark County, Nevada.
FINDINGS OF FACT
Rule of Civil Procedure 52(a)(1) requires the Court to
“find the facts specially and state its conclusions of
law separately.” Fed.R.Civ.P. 52(a)(1). The court must
make findings sufficient to indicate the factual basis for
its ultimate conclusion. Kelley v. Everglades Drainage
District, 319 U.S. 415, 422 (1943). The findings must be
“explicit enough to give the appellate court a clear
understanding of the basis of the trial court's decision,
and to enable it to determine the ground on which the trial
court reached its decision.” United States v.
Alpine Land & Reservoir Co., 697 F.2d 851, 856 (9th
Cir.), cert. denied, 464 U.S. 863 (1983) (citations
following the bench trial and having reviewed all of the
evidence and observed all of the witnesses, the Court makes
the following findings of fact in this case.
Parties / Background
Park Shopping Center (“the Shopping Center”) is
owned by an entity called Triple Five Group (“Triple
Five”). Triple Five has controlled the Shopping Center
through its affiliates, including Plaintiff Boca Park, from
the time of its development to the present.
Triple Five is a sophisticated, multi-national real estate
company with extensive experience in ...