Opinion
No. 02-P-309.
September 24, 2004.
DECISION PURSUANT TO RULE 1:28
Insofar as the judgment determines that the plaintiffs/lessees are not obligated to reimburse the defendants/lessors for attorney's fees and costs for defaults under the lease, it is reversed. The portion of the judgment that interprets § 24 of the lease is reversed. The declaration in paragraph 3(1) of the judgment is vacated and replaced by a declaration stating that § 12(d) of the lease obligates the lessees to reimburse the lessors for attorney's fees and costs arising out of the lessees' defaults of their obligations under § 18 of the lease and to reimburse the lessors for legal costs incurred by the lessors in drafting estoppel certificates as a result of the lessees' failure to comply with a term of the lease. The declaration in paragraph 3(4) of the judgment is vacated and is replaced by a declaration stating that § 24 of the lease does not require that the lessors provide the lessees with written notice of a default and time to cure before listing the default in an estoppel certificate. The declarations in paragraph 5(2) and 5(3) of the judgment are vacated and are replaced by a new declaration stating that § 12(d) of the lease obligates the lessees to reimburse the lessors for costs and expenses, including attorney's fees and expenses, incurred by the lessors as a result of the lessees' failure to comply with a term of the lease. The case is remanded to the Superior Court for further proceedings on the issue of attorney's fees and costs in accordance with the memorandum and order of the Appeals Court. In all other respects the judgment is affirmed.