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Circle K Stores Inc. v. T. O. H. Assocs. Ltd.

The trial court apparently awarded damages to the commercial landlord based on the amount of monthly rent due as shown on the property manager's invoice, but failed to account for the discrepancy between that figure and the amount shown on a copy of the amended lease.

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The trial court granted summary judgment to T. O. H. Associates, Ltd. in TOH’s suit against Circle K Stores, Inc., alleging that Circle K breached the terms of a lease and an assignment and assumption of lease by failing to pay rent under the terms therein.

Circle K appeals, contending that the trial court erred in granting summary judgment to TOH because: 1 TOH’s acceptance of partial rent payments created a question of fact as to whether TOH departed from the material terms of the lease; 2 the lease had been terminated and thus Circle K had no obligation to pay the rent and costs accrued thereafter; 3 a question of fact remains as to the monthly rent due; and 4 a question of fact exists as to whether TOH properly mitigated its damages. For the reasons that follow, we affirm the grant of summary judgment as to liability, vacate the judgment as to damages, and remand the case to the trial court on the issue of damages.

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