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Marvin Hewatt Enters. Inc. v. Butler Capital Corp.

The trial court did not err in finding that a question of fact remained as to whether the lease at issue was terminated, i.e., whether the tenant surrendered the premises or abandoned the lease.

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This dispute between a secured lender and a landlord arose after the entity that had borrowed from the former and rented from the latter in order to operate a convenience store went out of business. The lender and landlord had entered into a written agreement with one another. Under the terms of that agreement the lender had certain rights and the landlord certain duties upon of termination of the lease. As to the lender’s claim of breach of that agreement, the central question is whether a termination occurred. We find the evidence—which establishes without dispute that the landlord facilitated a sale of the business to another of its tenants—sufficient to send that question to a jury. We likewise find the evidence of that facilitation sufficient to authorize a finding that the landlord participated in an exercise of dominion or control over the secured property inconsistent with the lender’s rights and therefore sufficient to send the lender’s conversion claim to a jury. But the landlord was entitled to summary judgment on the claim founded on the equitable theory of unjust enrichment because the parties had a contract. As to the counterclaim, we find no abuse of discretion in the trial court’s denial of the lender’s motions for discovery sanctions and to strike an affidavit.

Case No. A14A0592.1. Facts.

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