HEATHMAN HOTEL PORTLAND, LLC, an Oregon limited liability company, Plaintiff-Respondent,
McCORMICK & SCHMICK RESTAURANT CORP., a Delaware corporation, Defendant-Appellant.
and submitted September 21, 2015
County Circuit Court 140404587; Eric J. Neiman, Judge pro
H. Kono argued the cause for appellant. With him on the
briefs were Nicholas A. Kampers and Davis Wright Tremaine
Ridler Aoyagi argued the cause for respondent. With her on
the brief were Edwin C. Perry and Tonkon Torp LLP.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
appeals a judgment for plaintiff declaring that defendant had
no right to exercise its second option to renew the
parties' restaurant lease and a supplemental judgment
that awarded attorney fees and costs to plaintiff. Defendant
assigns error to the trial court's grant of summary
judgment to plaintiff based on the court's conclusion
that the terms of the lease between the parties were
unambiguous. It also assigns error to the court's award
of attorney fees and the amount of the award. Held:
Viewing the disputed terms of the lease in the context of the
agreement as a whole and in light of the circumstances under
which it was created, the terms of the lease were not
ambiguous, and the trial court did not err in granting
plaintiff declaratory relief on summary judgment. The trial
court also did not abuse its discretion in awarding
reasonable attorney fees.
McCormick & Schmick Restaurant Corporation, appeals a
judgment for plaintiff, Heathman Hotel Portland, LLC,
declaring that defendant had no right to exercise its second
option to renew the parties' restaurant lease and a
supplemental judgment that awarded attorney fees and costs to
plaintiff. Defendant assigns error to the trial court's
grant of summary judgment to plaintiff based on the
court's conclusion that the terms of the lease between
the parties were unambiguous. It also assigns error to the
court's award of attorney fees and, alternatively, the
amount of the award. We affirm.
review a trial court's grant of summary judgment to
determine whether, viewing the facts in the light most
favorable to the nonmoving party, there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. ORCP 47 C. We review for abuse of
discretion whether the amount of a trial court's award of
attorney fees was reasonable. Village at North Pointe
Condo. Assn. v. Bloedel Constr.. 278 Or.App. 354, 369,
374 P.3d 978, adh'd to as modified on recons.
281 Or.App. 322, 383 P.3d 409 (2016).
and defendant are parties to a restaurant lease dated
September 20, 2000. Under the lease, defendant rented and
operated the restaurant in the Heathman Hotel. The initial
lease term was 10 years, to end on September 30, 2010. Under
Section 2.2 of the lease, defendant had the option to extend
the lease for two additional 10-year periods. The following
were the terms and conditions of the options in Section 2.2;
"2.2 Renewal Options. Provided that at the time
of the exercise of the Options herein granted * * * there
exists no Default under this Lease by Tenant *** and Tenant
shall have achieved the Minimum Total Gross Sales set forth
below, Tenant shall have and is hereby granted the option
(the 'Option') to extend the Term for two (2)
additional periods often (10) years (each an 'Option
Term' and collectively, the 'Option Terms') on
all of the terms and provisions contained in this Lease,
except this Section 2.2. Tenant may exercise the Option by
giving Landlord written notice thereof not later than one (1)
year and not earlier than two (2) years prior to the
expiration of Term or the then-current Option Term, as the
case may be. In the event any Option is duly exercised, all
references to and other provisions of this Lease concerning
the Term shall be deemed to refer to the Term as extended by
the Option Term. For purposes of the Renewal Options, Tenant
must have average Total Gross Sales for the two Lease Years
immediately preceding the delivery of its notice of exercise
of the first Option of at least $6, 000, 000 and for the two
Lease Years immediately preceding the delivery of its notice
of exercise of the second Option of at least $7, 500, 000
(the 'Minimum Total Gross Sales')."
in original.) Each "Lease Year" ran from October 1
to September 30 of the following year.
2009, plaintiff and defendant amended the lease (the
Amendment), effective September 30, 2009. The relevant
recitals of the Amendment are as follows:
"D. Tenant has exercised its option to extend the Lease
Term and Landlord and Tenant have agreed the Lease Term will
be extended for a period of five years (and not for ten
years, as provided in the Lease).
"F. Landlord and Tenant agree certain works of
improvement will be completed in the Restaurant Premises.
"G. Landlord and Tenant now wish to amend the Lease to
evidence the extension of the Term, to modify the length of
the remaining Option Term, to add provisions for works of
improvement in the Premises and to clarify and ...