Summary
adopting the commissioner's report and recommendation that the plaintiff took reasonable measures to mitigate
Summary of this case from VICI Racing, LLC v. T-Mobile USA, Inc.Opinion
C.A. No. 06C-10-039 FSS.
Submitted: April 29, 2010.
Decided: June 4, 2010.
Upon Defendant's Appeal from Commissioner's Findings of Fact and Recommendations — Dismissed, in part, and Recommitted to Commissioner, in part.
MEMORANDUM OPINION AND ORDER
This is Defendant, Charles G. Parks, Jr.'s, appeal from a commissioner's Report and Recommendation. For the reasons below, Parks's appeal is dismissed, and the matter is recommitted to the commissioner to recalculate Plaintiff's damages.
I.
On November 8, 1996, John Petroleum, Inc., leased Eastern Petroleum, Inc., a gas station and delicatessen. The lease's general conditions included the term, rent, and tenant's obligations to: pay taxes and utilities, obtain insurance, and maintain the property. The lease also states:
If Tenant fails to pay . . . rent . . . and continues in default for a period of five (5) days after receipt of written notice by Landlord, . . . Landlord may (a) declare the term ended and pursuant to process of law, expel Tenant . . . or (b) mitigate Landlord's damages by reletting the Lease Premises and applying the rental from the new tenant, if any, to this Lease, and Tenant shall be responsible for any deficiency which may occur. . . . Forbearance by Landlord to enforce any remedy shall not be deemed or construed to constitute a waiver.
Attached to the original lease is a Guaranty stating: "each Guarantor . . . shall be jointly and severely [sic] liable with Tenant for the payment and performance of Tenant's obligations under this Lease and any extensions and renewals thereof." The Guaranty further states that "[e]ach Guarantor agrees that without prior notice to or consent of a Guarantor, Landlord and Tenant may agree to . . . assign this Lease, and each Guarantor shall be bound by such . . . assignment as if such Guarantor had expressly consented thereto. . . . This Guaranty . . . is incorporated by reference into the Lease[.]"
On February 25, 1997, the parties signed a supplemental agreement regarding the rent and individual stockholders' guarantees. The original lease and the supplemental agreement were amended on January 7, 1999, altering the rent for specified periods. The lease was amended a second time on June 20, 2000, again modifying the rent and other terms.
On June 20, 2000, Eastern Petroleum assigned the lease to F. Warren Harris, Sr. Son, LLC. The assignment contained a Guaranty similar to the original lease's, but signed by F. Warren Harris, Sr. Son, LLC.
On April 21, 2002, F. Warren Harris, Sr. Son, LLC assigned the lease to Parks, a Connecticut attorney. The assignment, without legal verbiage, states:
`Assignor', assigns . . . unto `Assignee' all of Assignor's right . . . as Lessee as follows:
1. [A]ssignor agrees to transfer . . . its . . . interest in . . . the . . . Lease dated November 8, 1996 and Amendment . . . dated January 7, 1999, Second Amendment dated June 20, 20 00, and Third Amendment dated 4/21, 2002, between Landlord and Assignor, copies of which are . . . made a part hereof to the Assignee.
. . .
3. Assignee, . . . agrees to assume all of the . . . obligations of the Tenant under the Lease and the amendments thereto from . . . the date hereof, agrees to comply with . . . all the . . . agreements in said Lease to be complied with . . . by the Tenant . . .[;] agrees . . . to indemnify and hold Assignor harmless from . . . all losses . . . of every nature . . . which may be incurred by Assignor by reason of Assignee or Assignee[']s . . . failure to . . . perform any . . . agreement in the Lease to be . . . performed by the Tenant thereunder[.]
The assignment to Parks does not contain a separate guaranty.
The same day the lease was assigned to Parks, the agreement was amended a third time. This made the lease "subject to the Amendment dated January 7, 1999 and the Second Amendment dated June 20, 2000," modified several paragraphs of the lease, and provided that "[a]ll terms of the Lease Agreement . . . are hereby ratified. . . ."
Ultimately, Parks assigned the lease to Urso Enterprises on May 20, 2004. The assignment, again redacted, states:
Assignee . . . agrees to assume all of the . . . liabilities . . . of the Tenant under the Lease and amendments thereto . . . agrees to . . . perform all the . . . agreements in said Lease to be . . . performed by the Tenant . . . agrees that upon the assumption hereof, to indemnify the [sic] hold Assignor harmless from . . . all losses, . . . reasonable counsel fees and other reasonable expenses which may be incurred by Assignor by reason of Assignee[']s . . . failure to comply with or perform any . . . agreement in the Lease by the Tenant thereunder[.]
Significantly, the assignment further states that "[f]or a period of Five (5) years, up to and including the 20th day of May 2009, [Parks] shall remain obligated to Landlord pursuant to the Third Amendment, dated April 21, 2002, which shall remain in full force and effect as to [Parks] until that date."
After taking possession, Urso defaulted on the rent. Urso made promises to pay and paid some rent, and told Plaintiff that it was obtaining a loan. Accordingly, Plaintiff gave Urso several opportunities to cure its default. Urso failed to follow through, however, and Plaintiff started eviction proceedings in December 2004.
Plaintiff retook possession in July or August 2005. In the meantime, Urso abandoned the property, leaving it in disrepair with a damaged sidewalk and parking lot, a cracked front door, freezers containing spoiled food, an insect infestation, and broken fuel pumps. Large items were also taken from the store, including a display case, grill, and meat slicer.
Plaintiff made substantial repairs and advertised in the New York Times and two other newspapers. Plaintiff testified that about ten people contacted him regarding the property, and after showing it to potential tenants, Plaintiff re-let the property in December 2005.
II.
John Petroleum, Inc. sued Urso Enterprises, Inc., Peter A. Urso, and Parks on October 4, 2006. According to Plaintiff, "Defendants promised to pay to Plaintiff the sum of $4,800 per month. Defendants promised to pay New Castle County Real Estate taxes, School Taxes and Insurance." Plaintiff claimed that Defendants owed $61,237.64 in unpaid rent, as well as $19,197.41 for damage to the rental unit. Plaintiff also claimed attorneys' fees and costs. On March 15, 2007, Plaintiff filed a motion for default judgment against Peter Urso and Urso Enterprises, which was entered in February 2008 for $97,568.32, plus post-judgment interest.
As to Parks, on June 18, 2009, a bench trial was held before a commissioner. On July 31, 2009, the commissioner, in his Report and Recommendation, found Parks liable for rent from July 2005 to December 2005, for New Castle County and Local School District taxes for fiscal year 2005, and for an insurance premium on the property. The commissioner also found Parks liable for damage to the property, including damage to the fuel pumps, driveway, locks, front door, and air conditioner. Parks was also found liable for other miscellaneous costs, including Plaintiff's filing costs in Justice of the Peace Court for the default judgment and for costs to execute a writ of possession. The total damages against Parks were $78,834.94. The commissioner, however, did not find Parks liable for the stolen property or for advertising to lease the property after Urso's default. Parks appealed the commissioner's Report and Recommendation on August 10, 2009.
See Super. Ct. Civ. R. 132(a)(4)(ii).
On December 15, 2009, the court notified Parks that he failed to "cause a transcript of the proceedings before the commissioner to be prepared, served, and filed" pursuant to Superior Court Civil Rule 132(a)(4)(iii). The court gave Parks ten days to submit the transcript, informing him that the case would be dismissed after then without further notice or opportunity to be heard. The court dismissed the case on January 6, 2010.
Nevertheless, Parks responded on January 18, 2010, and he submitted the transcript. Parks claimed that he had ordered the transcript before August 11, 2009, but that "by inadvertently [sic] error, mistake and unfamiliarity with the local rules, [he] neglected to forward a copy to the opposing party and the court. The defendant was away from the office during the last part of December and did not become aware of the letter from the court until January 8th." Accordingly, the court vacated the January 6, 2010 dismissal.
Parks submitted a "Statement of Proposed Findings of Facts" on February 16, 2010. Rule 132(a)(4)(iii) states: "The party filing written objections to a Commissioner's order shall cause a transcript of the proceedings before the Commissioner to be prepared, served, and filed unless, subject to the approval of a judge, all parties agree to a statement of facts." Plaintiff filed a Motion to Strike Parks `s statement of facts on March 18, 2010. Parks filed an "objection" to Plaintiff's motion to strike on April 15, 2010. Because Plaintiff did not agree to a statement of facts, nor did a judge approve submitting one, and because Parks already submitted a transcript (albeit late), Parks's statement of facts will be disregarded. There is a transcript, and that is more helpful than the statement of facts.
III.
Under Superior Court Civil Rule 132(a)(4)(iv):
A judge of the Court shall make a de novo determination of those portions of the report or specified proposed findings of fact or recommendations to which an objection is made. A judge may accept, reject, modify, in whole or in part, the findings or re commendation s made by the Commissioner. A judge may also receive further evidence or recommit the matter to the Commissioner with instructions.
Super. Ct. Civ. R. 132(a)(4)(iv) (emphasis added).
Rental agreements for commercial units are excluded from the Landlord-Tenant Code. Accordingly, "[a]ll rights and remedies under a commercial lease agreement are governed by general contract principles."
25 Del. C. § 5101; see also Matthews Office Designs, Inc. v. Taub Invs., 1994 WL 267479, at *2 (Del. Supr. May 25, 1994) (citing 25 Del. C. § 5103(a)(1)); Axel v. Damar, Inc., 2007 WL 2446839, at *3 (Del. Super. Aug. 29, 2007) (Stokes, J.); Troumouhis v. State, 2006 WL 1579776, at *4 n. 11 (Del. Super. May 31, 2006) (Carpenter, J.); Dick v. Koutoufaris, 1990 WL 106193, at *2 n. 2 (Del. Super. July 11, 1990) (Gebelein, J.). (Although the commissioner, in a footnote, cites to 25 Del. C. § 5113, a section of the Residential Landlord-Tenant Code, it is harmless error.)
NorKei Ventures, LLC v. Butler-Gordon, Inc., 2008 WL 4152775, at *2 (Del. Super. Aug. 28, 2008) (Parkins, J.) (citing 25 Del. C. § 5101(b)).
Generally, "contracts must be construed as a whole, to give effect to the intentions of the parties. Where the contract language is clear and unambiguous, the parties' intent is ascertained by giving the language its ordinary and usual meaning." A contract is ambiguous, however, when provisions "are reasonably or fairly susceptible of different interpretations or may have two or more different meanings. . . . The true test is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant."
Nw. Nat'l Ins. Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del. 1996).
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992).
A. Parks's Status as Guarantor
The commissioner found that "[w]hen Defendant Parks reassigned his 2002 Lease to Urso in 2004, Defendant Parks undertook the responsibilities of a guarantor, as defined by the original lease and amendments. The assignment agreement clearly defines his obligations for a five year period." The commissioner further held, as a matter of law, that the lease's language was unambiguous. Parks contends, however, that "a lease and a guaranty are separated [sic] and distinct obligations and the assignment of one does not, in and of itself, convey the obligations of the other." He claims that "[t]here is nothing in the assignment of lease dated March 20, 2004 which would bind the defendant to the independent obligation of the Guaranty documents dated November 8th, 1996 or June 20, 2000." Parks states that "under the lease assignment of May 20th, 2004, [he] obligated himself to the obligations specified in the lease agreement dated April 21, 2002; no more no less."Parks's current position is inconsistent with his position at trial. At trial, Parks conceded he was a guarantor. Specifically, Parks argued to the commissioner:
As a guarantor, which he knew I was a guarantor, I was not a tenant in possession. . . . I'm a guarantor. As a guarantor . . . [Urso is] obligated to pay rent for March. If he doesn't, I'm obligated for March, okay. But, that obligation is like any lease, I'm required for notice each and every payment that he doesn't make. . . . I'm a guarantor in the lease.
More importantly, in Delaware, "[i]t is clear that a party cannot escape his duties under a contract by assigning the contract to another. Normally, an assignor remains liable as a surety for performance under an assigned contract: he must indemnify the lessor for the acts or omissions of the assignee."
Schwartz v. Centennial Ins. Co., 1980 WL 77940, at *2 (Del. Ch. Jan. 16, 1980) (Hartnett, V.C.); see also Caldera Properties-Lewes/Rehoboth VII, LLC v. Ridings Dev., LLC, 2009 WL 2231716, at *26 (Del. Super. May 29, 2009) (Graves, J.); Lillis v. ATT Corp., 2007 WL 2110587, at *11 (Del. Ch. July 20, 2007) (Lamb, V.C.). See generally Vetter v. Sec. Cont'l Ins. Co., 567 N.W.2d 516, 521 (Minn. 1997) ("Notwithstanding the assignment however, the original obligor remains responsible for performance on the contract and if the performance is substantially different from that required of the original obligor, the original obligor may be liable."); Orange Bowl Corp. v. Warren, 386 S.E.2d 293, 295 (S.C. Ct. App. 1989) ("As a matter of law, an assignor remains liable to the obligor for the assignee's defective performance."); Baker v. Weaver, 309 S.E.2d 770, 772 (S.C. Ct. App. 1983); Mandel v. Fischer, 613 N.Y.S.2d 381, 382 (N.Y. App. Div. 1994); 6 Am. Jur. 2d Assignments § 129 (2010).
Moreover, as presented above, Parks's assignment to Urso states: "[f]or a period of Five (5) years, up to and including the 20th day of May 2009, Assignor shall remain obligated to Landlord pursuant to the Third Amendment, dated April 21, 2002, which shall remain in full force and effect as to Assignor until that date." It is presumed that Parks-a sophisticated party and experienced attorney who more than adequately represented himself at trial-thoroughly read and analyzed the documents before signing them. Thus, under the agreement's plain language, Parks's testimony, and Delaware law, Parks did not escape liability by assigning the lease to Urso.
B. Sufficiency of Notice
Second, Parks contends that the commissioner's "finding of sufficiency of the one notice provided in [sic] October 7, 2004 was in error[]" because Parks claims "no knowledge of the October 7, 2004 letter." Parks further claims that "each failure of the tenant to pay rent requires an individual demand for each payment when due." He states that "[a]t no time did the plaintiff provide unambiguous notification to [Parks] that he wish[ed] to exercise any rights he may have against [Parks]."
Plaintiff counters that it "did provide a notice of default to Defendant Parks in October, 2004[,]" particularly that "[t]he correspondence was delivered to Defendant Parks at an address he has admitted was his correct business address, and was signed for by an individual at that address." Plaintiff also states that it "clearly notified Defendant Parks of Plaintiff's intent to enforce its contractual rights against said Defendant by the filing and service of [this] suit."
Orange Bowl Corp. v. Warren, a South Carolina case, is especially helpful because it involves a series of assignments of a franchise agreement and issues similar to those here. There, after a third assignment, the assignee defaulted, so the landlord terminated the franchise and sued the assignors and assignee. Orange Bowl held:
386 S.E.2d 293 (S.C. Ct. App. 1989).
The Franchise Agreement permitted [the landlord] to terminate the franchise if `the Franchisee shall fail to perform . . . any of the provisions required to be performed . . . by the Franchisee hereunder . . . and shall not remedy the same within seven (7) days after receipt of written notice to that effect from the Franchisor[.]'
. . .
In October, 1985, the `Franchisee' was [the assignee], not the [assignors]. The [assignors] had transferred their entire interest in the Franchise Agreement to [the assignee] in 1984. Nothing in the Franchise Agreement or the documents of assignment reserved a right in the [assignors] to receive notice or to resume the franchise if the assignee defaulted. Thus, . . . [the landlord] did not breach the notice and right-to-cure provision in the Franchise Agreement.
Similarly, here, the lease expressly provides that if the tenant fails to pay rent, the tenant will receive written notice from the landlord. After Parks assigned the lease to Urso, Urso became the tenant, and notice of Urso's default was owed to Urso, not Parks. The lease, by its terms, does not require notice to the assignor for the assignee's breach. Even so, as mentioned, Plaintiff sent a certified letter to Parks's correct business address on October 7, 2004, explaining Urso's default. And, someone at Parks's office signed for it, which Parks did not dispute at trial. Thus, Parks's argument regarding insufficiency of notice is without merit, both as a matter of law and undisputed fact.
C. Mitigation of Damages
Third, Parks contends that "[t]he Commission [sic] states without explanation that a delay of the plaintiff landlord of 13 month [sic] is excusable." Parks argues that "[m]itigation is judged on the bases [sic] of reasonableness under the circumstances." Parks adds that "the plaintiff filed an eviction action in December of 2004, but failed to prosecute the action until sometime in July of 2005, a full 7 months later." Without citing authority, Parks argues that "Delaware statute provides for an expeditious disposition of evictions proceeding."
The commissioner found that Plaintiff's "willingness and efforts to work with Urso between June 2004 and July 2005 were reasonable efforts to avoid eviction and litigation." Plaintiff "sought payment from Urso and was met with a series of requests from Urso seeking more time to pay[,]" and the commissioner found that this was "an attempt to mitigate his damages by allowing an additional opportunity for the tenant to become current under the Lease." The commissioner concluded that Plaintiff "reasonably relied on Urso's promises of payment[,]" and that "[t]here is nothing unreasonable in the landlord trying to work out a payment plan for overdue financial obligations rather than immediately declaring a breach of contract and evicting the tenant."
As presented above, the lease provides that, upon tenant's default, the landlord may declare the term ended and evict the tenant, or mitigate damages by re-letting the property. Furthermore, in Delaware, "[a] party has a general duty to mitigate damages if it is feasible to do so." "As a general rule, a party cannot recover damages for loss that he could have avoided by reasonable efforts." Accordingly, "the injured party has a duty to minimize . . . its costs and losses."
NorKei Ventures, LLC, 2008 WL 4152775, at *2 (quoting Highline Fin. Servs., Inc. v. Rooney, 1996 WL 663100, at *2 (Del. Super. Oct. 25, 1996) (Herlihy, J.)).
West Willow-Bay Court, LLC v. Robino-Bay Court Plaza, LLC, 2009 WL 458779, at *4 (Del. Ch. Feb. 23, 2009) (Noble, V.C.) (quoting Restatement (Second) of Contracts § 350 cmt. b (1981)).
Id.
Taking the undisputed facts into account, the court agrees with the commissioner's conclusion that Plaintiff's efforts to work with Urso were reasonable under the circumstances. Furthermore, when Plaintiff evicted Urso, it made reasonable efforts to mitigate damages, particularly by making substantial repairs, advertising in at least three newspapers, showing the property to potential tenants, and eventually re-letting the property. Considering the extensive damage to the property, which was well beyond normal wear and tear, the time-span over which Plaintiff acted was not unreasonable. And, Parks did not present counter evidence to prove that Plaintiff could have done better.
D. Damages
Parks further claims that "[t]he Commissioner does not explain how he assess [sic] the tax payment obligation when it is clearly [sic] from the evidence presented and that the bill produced by the plaintiff covered the period where the plaintiff had retaken possession." Parks states "it is the understanding of the defendant that property taxes are paid in advance; hence, there was [sic] no taxes due for a portion of 2004 and 2005 which the plaintiff is claiming as damages."
In response, Plaintiff, also without citing authority, argues that "a landlord is able to pursue additional damages beyond the termination of a tenancy, including loss of rent. Further, in this instance, possession was not afforded by a writ of possession issued by a Court, but rather by abandonment of the premises by co-defendant Urso." Plaintiff also claims that "since it is apparent that Defendant Parks was actually not entitled to notice under the terms of the lease in the first instance, the Court did err in not including the financial obligations incurred during the months of June 2004 through October 2004, totaling $28,760.75."
See Gonzalez v. Caraballo, 2008 WL 4902686, at *3 (Del. Super. Nov. 12, 2008) (Parkins, J.) ("Courts throughout the country hold that they are not obligated to do `counsel's work for him or her.' . . . [I]n all but the simplest motions, counsel is required to develop a reasoned argument supported by pertinent authorities.").
The commissioner found that there was $99,655.00 in unpaid rent. He also found that because "Defendant [Parks] was not notified of Urso's breach until October 2004 . . . Defendant should not be liable for the monthly financial obligations prior to the notification." Furthermore, the commissioner awarded Plaintiff $650.22 in New Castle County taxes for 2005, and $1,888.66 in Local School District taxes for 2005.
As discussed, Plaintiff was not required to notify Parks of Urso's breach under the lease. Instead, notice was owed to Urso, the tenant at the time. Accordingly, the notice given to Parks in October 2004 was unnecessary. Therefore, the commissioner must determine Parks's liability for unpaid rent before October 2004.
See Orange Bowl Corp., 386 S.E.2d at 296.
Furthermore, as also discussed, when Urso abandoned the premises, the property was not fit to be re-let. Accordingly, as the commissioner concluded, Parks is liable for the rent from July 2005 to December 2005, as this was reasonable for Plaintiff to make the substantial repairs, advertise, show the property, and obtain a new tenant. Also, one of the tenant's obligations under the lease was to pay the property's taxes. Because Urso did not pay taxes for 2005, Parks is liable for them.
Additionally, while the commissioner awarded Plaintiff $2,396.00 in insurance costs, Parks does not appear to object to that finding. Parks also does not object to the property damages and other expenses awarded to Plaintiff in the amount of $3,005.81. Thus, those awards are safe because they are without objection.
See Super. Ct. Civ. R. 132(a)(4)(iv) ("A judge of the Court shall make a de novo determination of those portions of the report or specified proposed findings of fact or recommendations to which an objection is made.").
E. Affirmative Defenses
Parks also contends that "[t]he Commissioner did not address the affirmative defenses of estoppels [sic], waiver, detrimental reliance, or material modification." In his answer, Parks asserted: failure to state a claim upon which relief may be granted; insufficiency of service of process; estoppel; laches; statute of limitations; waiver; failure to mitigate damages; and failure to notify Parks until long after the damages and expenses regarding the property were incurred. Plaintiff responds that "[s]everal of the defenses raised by Defendant Parks are equitable defenses, which are clearly inapplicable in this matter."Superior Court Civil Rule 8(c) expressly lists available affirmative defenses here, including estoppel and waiver. This court now recognizes some defenses once considered "equitable defenses," but some remain "purely equitable in nature," including laches.
USH Ventures v. Global Telesystems Group, Inc., 796 A.2d 7, 18-20 (Del. Super. 2000).
Accordingly, it was unnecessary for the commissioner to address laches because it is purely equitable. Furthermore, material modification was not asserted in Parks's answer to the complaint. Estoppel and waiver were, however, asserted in two short sentences. Parks contended: "Plaintiff is barred in whole, or in part, by waiver[,]" and "Plaintiff is barred in whole, or in part, by estoppel."
See Super. Ct. Civ. R. 8(c).
i. Estoppel
"An estoppel may arise when a party by his conduct intentionally or unintentionally leads another, in reliance upon that conduct, to change position to his detriment." To demonstrate estoppel, it has to "appear that the party claiming the estoppel lacked knowledge and the means of knowledge of the truth of the facts in question, that he relied on the conduct of the party against whom the estoppel is claimed, and that he suffered a prejudicial change of position in consequence thereof." The party asserting estoppel "had a duty to use reasonable diligence under the circumstances."
Wilson v. Am. Ins. Co., 209 A.2d 902, 903-04 (Del. 1965); see also Reserves Dev. Corp. v. Esham, 2009 WL 3765497, at *8 (Del. Super. Nov. 10, 2009) (Ableman, J.).
Wilson, 209 A.2d at 904.
Beach Treat, Inc. v. N.Y. Underwriters Ins. Co., 301 A.2d 298, 302 (Del. Super. 1972).
The commissioner, while perhaps not using the words "estoppel" or "detrimental reliance," appears to have found that, as opposed to leading Parks to change Parks's position to his detriment, Plaintiff tried to mitigate its damages. As in Orange Bowl, the lease did not give Parks the right to resume the tenancy if Urso defaulted. Further, the record does not include evidence that Plaintiff strung Parks along to encourage him to change his position, but instead Plaintiff tried to avoid immediately evicting Urso and made efforts to mitigate the damages. Accordingly, Parks did not make a case for estoppel.
Orange Bowl Corp., 386 S.E.2d at 296.
ii. Waiver
As it is with his estoppel claim, Parks's waiver claim is bare bones and conclusory. With that in mind, "[a] waiver occurs where a party voluntarily relinquishes a known right or engages in conduct warranting an inference that it has done so." "It involves both knowledge and intent, and is based on the idea of consent, express or implied. . . . It depends on what one party intended to do, rather than upon what he induced his adversary to do, as in estoppel."
Esham, 2009 WL 3765497, at *9.
Nathan Miller, Inc. v. N. Ins. Co. of N.Y., 39 A.2d 23, 25 (Del. Super. 1944).
In his report, the commissioner addresses waiver: "[Plaintiff's] delay in evicting Urso is not a waiver of rights." Plaintiff did not waive its rights by not immediately evicting the tenant or by repairing the property and finding a new tenant. The commissioner's conclusion that Plaintiff did not waive its rights is consistent with the undisputed evidence.
F. Failure to Address Cross Complaint
Lastly, again in one sentence, Parks states: "It is noted that the Commissioner failed to address the cross claims against the tenant in possession." Default judgment was entered against Peter A. Urso and Urso Enterprises in February 2008. Furthermore, at the end of his Report and Recommendation, the commissioner states: "Nothing in this opinion precludes recovery by either Plaintiff or Defendant Parks from the Defendant in Default, Urso."IV.
For the foregoing reasons, after de novo review of the record, and consistent with the reasons stated in the commissioner's July 31, 2009 Report and Recommendation, Defendant's Appeal From Commissioner's Findings of Fact and Recommendations is DISMISSED, except that the case is RECOMMITTED to the commissioner for recalculation of damages consistent with this opinion's Section III. D.
IT IS SO ORDERED.