Opinion
Bankruptcy No. 03-11077DWS.
May 7, 2004
David A. Scholl, Esquire, Regional Bankruptcy Center, Law Office of David A. Scholl, Newtown, PA, Counsel for Debtor.
Peter A. Lesser, Esquire, Timothy A. Gallogly, Esquire, SIRLIN GALLOGLY LESSER, PC, Philadelphia, PA, Counsel for Watertower.
William C. Miller, Esquire, Standing Chapter 13 Trustee, Philadelphia, PA, Chapter 13 Trustee.
Dave P. Adams, Esquire, Office of the U.S. Trustee, Philadelphia, PA, United States Trustee.
ORDER
AND NOW, this 7th day of May 2004, upon consideration of the objection of the debtor James P. Peters to the proof of claim of Watertower Office Associates, L.P.'s ("Watertower") for lease rejection damages ("the Objection"), after notice and hearing and for the reasons set forth in the accompanying Memorandum Opinion;
It is hereby ORDERED that the Objection is OVERRULED. Watertower is Granted an allowed unsecured claim in the amount of $60,901.01.
MEMORANDUM OPINION
Before the Court is the objection of the debtor James P. Peters to the proof of claim of Watertower Office Associates, L.P.'s ("Watertower") for lease rejection damages ("the Objection"). While Watertower amended the amount of its proof of claim to $60,901.91 after the hearing on the Objection, Peters contends that Watertower is entitled to no more than $28,879.56.
The original a proof of claim in the amount of $132,661.43 included accelerated rent that was subsequently reduced when Watertower relet the leased premises.
FACTS
On February 15, 2000, Peters McKelligott LLP (the "Partnership") entered into a written lease agreement with Watertower ("the Lease") for 1,710 square feet of office space in the Watertower Building in Blue Bell, Pennsylvania ("the Premises"). Exhibit W-1. Peters was one of the partners of the Partnership and executed the Lease on its behalf. The Lease was for a term of 60 months, commencing March 1, 2000 and continuing until February 28, 2005. Id. Watertower received a security deposit in the amount of $4,987.50.
As one of the partners of the limited partnership, Peters is liable for the contract obligations of the Partnership not arising from any negligent or wrongful acts or misconduct of another partner or representative of the Partnership. 15 Pa. C.S. § 8204(a). In any event, Peters does not contest his liability but rather the amount thereof.
In the Lease, the Partnership agreed to pay a base rent figure in monthly installments according to the rent schedule attached thereto. In addition, the Partnership agreed to pay as additional rent per month, its pro-rata share of the taxes, operating expenses and utility charges (collectively referred to as "CAM charges") associated with the lease of the Premises. Any portion of the base rent or CAM charges not paid within the time prescribed under the Lease was subject to a late charge of 10% of the overdue amount. Furthermore, the Partnership agreed to pay all of Watertower's expenses incurred in enforcing the Lease, including reasonable attorneys' fees.
The rent schedule in the Lease set forth the amount of base rent as follows:
Date Annual Rent Monthly Rent Year 1 Mar 2000-Feb 2001 $29,925 $2,494 Year 2 Mar 2001-Feb 2002 $30,823 $2,569 Year 3 Mar 2002-Feb 2003 $31,747 $2,646 Year 4 Mar 2003-Feb 2004 $32,700 $2,725 Year 5 Mar 2004-Feb 2005 $33,681 $2,807Id.
According to the Lease, the Partnership was responsible to pay 7.6% (its pro-rata share) of the increase in taxes and operating expenses of the current lease year over the base year, which was the year 2000. The analysis for the utility charges is the same except that it does not account for any increase over the base year. Id.
From the commencement of the Lease to January 2002, Peters duly paid the base rent. During this time, with the exception of January 2002, Watertower did not assess any CAM charges. However, beginning January 2002 and continuing thereafter, CAM charges were assessed. After January 2002, Peters did not make any payments for base rent or CAM and vacated the office space in March 2002. The total amount of the actual CAM charges for the year 2002 were $5,902.02.
Apparently, Watertower's property manager at the time the lease was executed inexplicably failed to assess CAM charges. A new property manager took over in the summer of 2001 and discovered the omission. In an attempt to remedy the problem, the new property manager began assessing CAM charges prospectively in January 2002. Watertower did not seek to recover the CAM charges never billed prior to January 2002 and its claim does not seek to do so now.
While the Partnership paid the base rent in January 2002, it did not make a payment for the CAM charges for that month. Peters testified that he was never assessed CAM charges prior to January 2002 and never received any notice from Watertower that it was going to start assessing them. While that may be so, when Watertower began to assess CAM charges as it was permitted to do under the Lease, such charges appeared on the invoices sent to the tenants for the rent.
Watertower calculated the CAM charges for the year 2002 by subtracting $125,116 (actual CAM expenses for the base year) from $202,774.12 (actual CAM expenses for 2002) and multiplying that figure by 7.6%. Peters does not dispute the amount of the CAM charges.
While Peters did not pay any base rent or CAM charges after January 2002, he double-paid base rent for August 2000. Apparently, the check that Peters submitted for the August 2000 rent, dated September 5, 2000, was lost by Watertower. Peters submitted another check for the August 2000 rent, dated October 18, 2000, that was received and cashed by Watertower. Sometime thereafter, Watertower located the September 5th check and cashed it in May 2001. Despite cashing both checks, Watertower did not credit Peters for the extra August 2000 rent payment.
The notation on the September 5th check indicates it is for August rent. The notation on the October 18th check indicates that it is a replacement for the September 5th check.
Under the Lease, failure to pay rent when due and the abandonment or vacation of the Premises are Events of Default which trigger the remedies set forth in Paragraph 19. Relevant to the instant dispute is the provision regarding reletting. It states in pertinent part:
With or without terminating this Lease, as Landlord may elect, Landlord may enter and repossess the Premises, or any part thereof, and lease them to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term; provided that any such reletting shall be for the account of Tenant, and tenant shall remain liable [for any sums payable under the Lease including the expenses of reletting].
Lease ¶ 19A(2).
The Premises sat vacant until December 31, 2002, when Watertower entered into a written lease with Incentive Media, LLC ("Incentive") for 36 months, commencing January 1, 2003 and continuing until December 31, 2005. This term extends ten months after the Lease was to expire. However, the base rent under Incentive's lease is lower than the rent reserved in the Lease.
Incentive's lease set forth the amount of base rent as follows:
Date Annual Rent Monthly Rent
Year 1 Jan 2003-Dec 2003 $20,256 $1,688 Year 2 Jan 2004-Dec 2004 $21,100 $1,758 Year 3 Jan 2005-Dec 2005 $21,944 $1,829
Exhibit W-2. While Incentive basically leases the entire space previously occupied by the Partnership, the amount of office space is 22 square feet which may be accountable in part for the price differential.
On January 23, 2003, Peters filed a petition for relief under Chapter 13. DISCUSSION
A landlord's claim is determined by reference to § 502(b)(6) which provides a limit or "cap" on claims that landlords may bring for damages resulting from the termination of a lease of real property. Solow v. PPI Enterprises (U.S.), Inc., et al. (In re PPI Enterprises (U.S.), Inc.), 324 F.3d 197, 207 (3d Cir. 2003); Sunbeam-Oster Co., Inc. v. Lincoln Liberty Ave., Inc. (In re Allegheny Int'l, Inc.), 145 B.R. 823, 827 (W.D. Pa. 1992). However, while establishing that claim limitation, § 502(b)(6) does not provide a means for determining the amount of the claim itself.Fifth Ave, Jewelers, Inc. v. Great East Mall, Inc. (In re Fifth Ave. Jewelers, Inc.), 203 B.R. 372, 376 (Bankr. W.D. Pa. 1996). The total amount of a landlord's damage claim must be computed under applicable non-bankruptcy law and then compared with, and limited by, the statutory maximum provided in section 502(b)(6). Fifth Ave. Jewelers, 203 B.R. at 376; In re Allegheny Int'l, Inc., 136 B.R. 396, 401 (Bankr. W.D. Pa. 1992).
Section 502(b)(6) provides, in pertinent part, that:
(b) Except as provided in subsections (e)(2), (f),(g),(h) and (i) of this section, if such objection to a claim is made, the court . . . shall determine the amount of such claim . . . as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that —
(6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds —
(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of —
(i) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without acceleration on the earlier of such dates;
The purpose of such cap is to balance the interests of landlords against the interests of the general unsecured creditors by allowing landlord to receive compensation for losses suffered from a lease termination while not permitting a claim so large as to prevent general unsecured creditors from recovering from the estate. PPI Enterprises, 324 F.3d at 207-08.
While the parties had led me to believe that their dispute centered on the application of the cap, that is only part, and not the biggest part, of the objection.
A. Computing the Amount of the Total Damage Claim
The amount of a landlord's damage claim before application of § 502(b)(6) is ascertained by reference to the lease and applicable state law. Fifth Ave. Jewelers, 203 B.R. at 376. Generally, in calculating the amount of a damage claim, a landlord may include all unpaid rent, including the remaining amount of rent due under the lease, attorneys' fees, late fees, reletting costs and any other lease related charges that are due or to become due. Any proceeds a landlord receives from reletting are to be subtracted from the claim to arrive at the total damage amount.Id.
Rent would also include any items defined as additional rent under a lease, such as CAM charges.
The crux of the dispute before me is whether or not Watertower accepted a surrender of the Premises. The parties' differing positions on that legal issue accounts for their disparate calculations of the total damages claim. Peters claims that at best Watertower accepted the surrender of the Premises when it relet the Premises to another tenant on December 31, 2002. By virtue of the alleged acceptance of the surrender, Peters contends that any claim for the remaining rent is extinguished, thereby limiting Watertower's claim to the amount of unpaid rent up to the date the new tenant took occupancy. On the other hand, Watertower alleges that there was no acceptance of a surrender and, therefore, its claim includes the reserved rent during the remainder of the Lease term, a period of 26 months.
This was the position adopted by Watertower in its initial brief, a position it quickly retracted in favor of its current stance that there was no legal surrender at all. Peters' statements on this issue are equivocal since for the purpose of discussing surrender under § 506(b)(6), he argues for the earlier date the Partnership vacated the Premises, i.e., March 2002.See n. 19 and accompanying text infra. As noted below, I find neither date dispositive.
Debtor's quantifies this as $3,317.84 (rent of $2,646 plus CAM charges of $491.84) times 8 months or $25,102.72 plus $3,776.84 in attorney's fees or $28,879.56.
Whether there has been an acceptance of a surrender is a matter of state law, which, in this instance, is the law of Pennsylvania. Pennsylvania law defines "surrender" as "the yielding up of an estate for years to him who has the immediate reversion and the effect is to pass the estate of the tenant to the landlord, extinguishing the rent reserved." Ralph v. Deiley, 141 A. 640, 642 (Pa. 1928). Thus, Debtor is correct that once a leasehold is surrendered, a landlord is no longer entitled to receive rent for the remainder of the lease term. However,
[b]efore an act of surrender by a tenant can be held to relieve the tenant from further liability under a lease, the landlord must accept the surrender. When determining if a surrender of the lease occurred, the intention of the parties govern. Whether the landlord accepted the tenant's surrender is a question of fact for the jury. The burden is on the tenant to show by clear and convincing evidence that the landlord's actions constituted acceptance of the tenant's surrender. It must be shown that the landlord made some "unequivocal act" that would constitute acceptance of the tenant's surrender. Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 685 A.2d 1019, 1023 ( Pa. Super. 1996) (citations omitted), aff'd 715 A.2d 1082 (1998). Accord Ralph v. Deiley, 141 A. at 642; Brill v. Haifetz, 44 A.2d 311, 313 ( Pa. Super. 1945). In this case, Peters returned the keys to Watertower and vacated the Premises in March 2002. The Partnership also ceased paying any rent after January 2002. The Premises remained vacant until Incentive entered under a new lease on January 1, 2003. There was no evidence of any express agreement between the parties (written or oral) concerning any acceptance of Peters' surrender when he vacated in March 2002 or when Watertower later relet the Premises. Accordingly, there only remains the possibility of acceptance by implication, which entails an examination into Watertower's actions after Peters vacated the Premises.
[W]here a tenant, during the term [of the lease], abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that [the landlord] resumes possession is not of itself a sufficient foundation upon which to predicate . . . an acceptance of a surrender. . . . It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to the reoccupation of it by him and a renewal of the relations created by the lease.
Stonehedge Square Ltd. Partnership, 685 A.2d at 1023 ( quoting Kahn v. Bancamerica-Blair Corp., 193 A. 905, 907 (1937)) (second alteration is original).
Peters argues that the latest date a surrender of the Premises occurred is when it was relet to Incentive. However, the reletting of a demised premises does not necessarily establish a landlord's acceptance of a surrender. See Ralph v. Deiley, 141 A. at 643; Brill v. Haifetz, 44 A.2d 311, 313 (1985). Indeed,
Peters' unilateral action in vacating the Premises in March 2002 is not a surrender absent some evidence of acceptance of the surrender. There was no evidence of any occupation of or re-entry into the Premises by Watertower until the reletting to Incentive. While termination of the Lease would effect a surrender, there was no evidence that Watertower took such action upon Peters' vacatur of the Premises. Compare Mid-Wilshire Assoc. v. Lomax (In re Lomax), 194 B.R. 862, 866 (Lessor's termination of lease pursuant to state statute satisfied acceptance of surrender under California law).
[w]here the first lessee, without right, abandons the possession [of the demised premises], the landlord may resume possession and rent or repair the property, in the interest of the first tenant, who remains liable for any defalcation or deficiency in the rent, and the joinder of the first lessee in securing another tenant will not work a surrender in law unless the owner agrees thereto.
Jenkins v. Root, 112 A. 153, 154 (Pa. 1920).
On the other hand, where a tenant gives up possession and a landlord enters into a new lease with another tenant during the existence of the original lease term, and the new lease is hostile to the original lease, a surrender is effected. Id. Under such circumstances, the landlord has created a new lease that is independent of and inconsistent with the original lease, thereby abrogating the original lease. Id. Thus, whether a reletting of a premises effects a surrender depends upon whether the new and original leases are independent of and inconsistent with each other. If the two leases are dependent and consistent with one another, it demonstrates that the reoccupation and reletting was for the benefit of the tenant and that the landlord did not accept the surrender. These principles were recognized inBrill v. Haifetz, supra, a case close to the facts here. In that case, the landlord relet the premises of the defaulting tenant and the new lease extended some six months beyond the original lease. Noting that the making of a new lease during the existence of an outstanding lease and in hostility thereto may effect a surrender by operation of law, the court found no such surrender since the lease expressly permitted the landlord to rerent the property. It stated:
The lessor's rerenting was not incompatible with the lease, but in compliance with it. Nor did she ever consent, either expressly or impliedly, to the tenants' violation of the lease or relieve them of liability thereunder. She carried out her duty of doing what she could to minimize the damages by putting up a `for rent' sign and advertising for a tenant in the newspapers. By making some changes she leased the premises at a reasonable rental, which was to the advantage of the plaintiffs.
44 A.2d at 313. Likewise Watertower acted in accordance with the terms of the Lease when it relet the Premises to Incentive on such terms and conditions as it deemed reasonable. Paragraph 19(A)(2) of the Lease provides that right upon an Event of Default.
While there was no evidence of whether Watertower actually informed Peters that it was reletting the Premises for his benefit, the Lease does not require that it do so. Without any such contractual obligation, failure to provide notice does not constitute acceptance. Ralph v. Deiley, 141 A. at 643. Nor does the fact that the Incentive lease term was ten months in excess of the term of the Lease suggest an inconsistency that establishes an acceptance of a surrender in the face of the parties' agreement that expressly allowed Watertower to take the action it did while still holding the Partnership liable. See Brill v. Haifetz, 44 A.2d at 313 (holding that the landlord's reletting did not effect a surrender even though the new lease term extended 6 months beyond the original lease term). Indeed that longer term may have been necessary to secure a new tenant for Peters' benefit.
Other than the existence of the Incentive lease, no evidence was presented as to the circumstances surrounding the reletting of the Premises to Incentive. As a result, it difficult to discern Watertower's intentions. However, since it is Peters' burden to establish that Watertower unequivocally acted to accept the Partnership's surrender upon the reletting of the Premises, the deficiency in this record inures to Watertower's benefit. Based upon the foregoing, I find that Peters has not met his burden and therefore he remains liable for rent reserved for the full term of the Lease less the mitigation resulting from proceeds of the Incentive lease.
Watertower asserts a total damage claim of $60,901.91 consisting of rent of $54,115.62, late fees of $3,009.55 and attorneys' fees of $3,776.84. Other than his legal contention that there was no liability after the reletting of the Premises, Peters does not challenge Watertower's calculation of the rent. Watertower has accepted the Debtor's contention that only prepetition attorneys' fees are recoverable, and the amount included in the claim is an agreed sum. While Peters contests Watertower's right to late fees, the Lease clearly provides for a late charge of 10% of all past due rent, which includes any additional rent such as CAM charges. Exhibit W-1 ¶ 3D. I agree with Watertower that Peters has suggested no basis for not enforcing that term of the Lease. Otherwise Peters does not contest the amount of the late charges of $3,009.55 which are limited to the period February 2002 through December 2002 when the Premises were relet. Accordingly, I conclude that Watertower has met its ultimate burden pf persuasion in overcoming the Objection as it relates to the total damages claim. In re Allegheny International, Inc., 954 F.2d 167, 173 (3d. Cir. 1992) (Burden of persuasion is always on the claimant).
The dispute over the duplicate payment was resolved in Debtor's favor and Watertower has applied that amount as a credit against the total rent. It also has appropriately given credit for the security deposit and the rent paid under the Incentive lease.
B. Computing the § 506(b)(6) Cap
After the total damage claim is determined, it must be subjected to the statutory limitation provided in § 502(b)(6).Fifth Ave. Jewelers, 203 B.R. at 376; In re Allegheny Int'l, Inc., 136 B.R. at 401. Specifically, a landlord is entitled to the rent reserved, without acceleration, for the greater of (1) one year or (2) 15 percent, not to exceed three years, of the remaining lease term. 11 U.S.C. § 502(b)(6)(A). This formulation operates from the earlier of the petition filing date or the date in which the landlord repossessed or the tenant surrendered the leased property. Id. Accordingly, in applying § 502(b)(6)(A), the appropriate date, i.e., the petition date or surrender date, must first be determined. Once again the dispute between the parties centers on the relevant date to be used. The Debtor argues for a surrender date fixed at the point that the Partnership vacated the Premises, i.e., March 2002, whereas Watertower maintains its position that there has been no surrender and thus the petition date, i.e., January 23, 2003, governs.
The date of surrender or repossession is not defined by the Bankruptcy Code; courts have recognized that the terms "surrender" and "repossession" are subject to several meanings.See Fifth Ave. Jewelers, 203 B.R. at 377; While the meaning of a word in a federal statute is a question of federal law, this does not necessarily compel the conclusion that state law may not be utilized, especially where state law does not conflict with federal law. Id. at 378-79. In this regard, most courts defer to state law to determine whether a leasehold was surrendered or repossessed. E.g., In re Blatstein, 1997 WL 560119 (E.D. Pa. Aug. 26, 1997); Smith v. Sprayberry Square Holdings (In re Smith), 249 B.R. 328, 335 (Bankr. S.D. GA. 2000); Fifth Ave. Jewelers, 203 B.R. at 378;In re Iron-Oak Supply Corp., 169 B.R. 414, 417 (Bankr. E.D. Cal. 1994). These courts reason, and I concur, that a state law definition of "surrender" does not conflict with federal law and is not inconsistent with the purpose of § 502(b)(6). Looking to state law to determine the meaning of the term surrender for the purposes of the total damages claim, I have already concluded that there was no surrender. Absent a surrender, then the petition date controls. Fifth Ave. Jewelers, 203 B.R. at 380.
I respectfully disagree with the Debtor's argument that a "common sense" or "intuitive" meaning of the term surrender should be used in favor of a state law definition which would support a March 2002 surrender date based on when the Partnership vacated the Premises. See 718 Arch St. Assoc. v. Blatstein (In re Main, Inc.), Nos. 96-19098DAS, 97-0008DAS, 96-31813DAS, 97-0004DAS, 1997 WL 626544 at *6-7 (Bankr. E.D.Pa. Oct 07, 1997).on remand from In re Blatstein, No. 97-3739, 1997 WL 560119 (E.D. Pa. August 26, 1997). Debtor relies upon mere dicta by former Bankruptcy Judge Scholl who, despite expressing his reluctance, nevertheless followed the explicit mandate of the District Court that "surrender" and "repossession" should be determined by reference to state law. Id. at *8. Nor has Judge Scholl's dicta been followed by any other court.
Aside from the dispute over the date to be used in calculating the cap, the parties do not appear to have any further difference. Both conclude that of the optional formulations set forth in § 502(b)(6), the appropriate measure of the claim for the purposes of determining the cap is the rent reserved by the Lease for one year. While Debtor uses a monthly rent figure of $2,646 and CAM charges of $491.84 for a total for twelve months of $37,654.08, Debtor's Memorandum of Law in Support of Objection at 4, Watertower uses only the monthly rent for twelve months ($2,646 for February 2003 and $2,725 for the remaining eleven months) of $32,621. Reply Memorandum of Watertower Office Associates in Response to Objection at 5. Since Watertower does not ask that CAM charges be included, I will not do so but I will accept its monthly rent calculation since the Lease does provide for the rental increase at March 1. Thus, for the calculation of the cap, the rent reserved component is $32,621.
This makes sense because there is less than 80 months remaining on the Lease. Where this is so, the one year rent amount will control. Where more than 240 months remain, the three years remaining rent figure controls. Where the amount of time remaining on a lease falls between 80 and 240 months, the 15% figure will control. In re Iron-Oak Supply Corp., 169 B.R. at 419 n. 8.
Base rent and additional rent, i.e., CAM charges, are allowable as reserved rent for purposes of § 502(b)(6)(A). Kuske v. McSheridan (In re McSheridan), 184 B.R. 91 (9th Cir. B.A.P. 1995). However, CAM charges will not be included in the calculation of the rent reserved here because Watertower did not seek same nor introduce any evidence of such charges after the year 2002.
The calculation is performed exclusive of any mitigation of damages. While any proceeds a landlord receives from reletting will offset the landlord's total damage claim, they will not figure into the calculation of the cap. In re PPI Entersprises, 324 F.3d at 208 n. 17; In re Fifth Ave. Jewelers, 203 B.R. at 381.
To this amount must be added any unpaid rent owed under the Lease prior to the petition date. 11 U.S.C. § 502(b)(6)(B). Again evidencing the most significant point of departure between the parties, Debtor fixes this number at zero presumably because of his contention that the Premises were surrendered in March 2002 and there was no further liability for rent. Since I have already concluded that there was no acceptance of surrender, pre-petition rent (including CAM charges) must be included. Watertower fixes that charge at $30,095.52, and I concur.
Debtor's Memorandum simply fails to include any amount for unpaid rent. Whether he overlooked § 502(b)(6)(B) or more likely concluded there was no unpaid rent because of his view that the Premises had been surrendered in March 2002 when the Partnership vacated the Premises is not explained. If the Debtor's legal conclusion regarding the surrender were valid and a surrender was effected in March 2002, there would have been no unpaid rent since February's payment would have been offset by the uncredited double payment.
Watertower does not explain how it arrives at this number. It has disavowed the calculations set forth in Exhibit W-6 since it does not acknowledge a surrender on December 31, 2002. Of course, that only adds one additional month of unpaid rent since the petition was filed on January 23, 2003. However, the W-6 calculation includes late charges which are not generally considered part of unpaid rent for purposes of § 506(b)(6)(B).In re Smith, 249 B.R. at 339-40; In re Fifth Avenue Jewelers, 203 B.R. at 381. Watertower appears to recognize as much as I was able to independently calculate the unpaid rent to arrive at the precise number Watertower advances, $30,095.52. It consists of 1 month of rent at $2,569 (for February 2002) plus 11 months of rent at $2,646 (March through January 2003) plus CAM charges of $5,902.02 minus the double payment of $2,494 and the security deposit of $4,987.
In summary, the total cap amount for Watertower's damages is the sum of $32,621 and $30,095.21 or $62,716.52. As this amount is greater than the actual damages claim of $60,901.91, the damages claim will be allowed. The Objection is thus overruled.
An Order consistent with this Memorandum Opinion shall be entered.