MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises out of a commercial lease between 318 Post Road, LLC (Post Road or the landlord), and Perimeter Brand Packaging, LLC (Perimeter or the tenant). Post Road appeals from a judgment of the Superior Court in its favor, arguing that it was entitled to additional relief. We affirm.
Background. Perimeters lease obligations included monthly rent and common area maintenance (CAM) charges. The lease expired on August 31, 2015. After Perimeter vacated the premises, Post Road filed suit to collect prorated 2015 CAM charges and associated late fees. Perimeter then brought a separate action against Post Road, seeking damages for breach of the covenant of quiet enjoyment due to extensive construction work that began in December of 2013 and ended in June of 2014. Post Road voluntarily dismissed its action and, in the action brought by Perimeter, filed a counterclaim against Perimeter for the 2013 CAM, the prorated 2015 CAM, late fees for the unpaid CAM charges, alleged unpaid rent, and attorneys fees.
After a bench trial, the judge found that Perimeter had not met its burden of proving a breach of the implied covenant of quiet enjoyment; that Perimeter owed 2013 and 2015 CAM charges; and that Perimeter did not owe attorneys fees to Post Road pursuant to the parties’ lease. The judge awarded Post Road late fees for Perimeters 2013 CAM charges and June 2015 rent payment. Judgment therefore entered, inter alia, for Post Road on its claims against Perimeter for failure to pay rent and CAM charges and ordered Perimeter to pay Post Road a total of $10,997.67. Perimeter has paid Post Road the judgment amount.
On appeal, Post Road asserts that it should have been awarded $17,916.64, which it claims was the balance owed at the end of the lease
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; accrued late fees of $63,627.42
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on that balance; late fees for the 2015 CAM of $17,322.48
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; and attorneys fees of $36,760.33.
Standard of review. “On appeal, we are bound by the trial judges findings of fact, including all reasonable inferences, that are supported by the evidence” (citations omitted). Almeida v. Arruda, 89 Mass. App. Ct. 241, 244 (2016). We will only set aside findings that are clearly erroneous. Id. “A finding is ‘clearly erroneous’ only when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). The interpretation of a written lease, however, is a question of law and is therefore reviewed de novo. Diamond Crystal Brands, Inc. v. Backleaf, LLC, 60 Mass. App. Ct. 502, 505 (2004). See also A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Auth., 479 Mass. 419, 424 (2018). “When contract language is unambiguous, [the contract] must be construed according to its plain meaning.” Balles v. Babcock Power Inc., 476 Mass. 565, 571-572 (2017).
Discussion. 1. The balance due at termination. Post Road contends that the trial judge incorrectly calculated the amount of rent due at the time of termination. At the time the lease expired, the trial judge found that Perimeter owed rent for July and August 2015, at $9,271.33 per month, and CAM charges -- and late fees thereon -- for 2014 of $7,217.76: a total of $25,760.42. However, in July of 2015, when Perimeter vacated the premises, Perimeter provided Post Road with a check for $4,065.42, reflecting the outstanding rent and 2014 CAM balance, less the security deposit amount of $21,695. The trial judge found that Perimeter did not owe additional monies to Post Road for July 2015 rent, August 2015 rent, or the 2014 CAM charges. Post Road contends on appeal that Perimeter owed $17,916.64 in addition to the security deposit and that the trial court judgment was silent about that amount. At oral argument, Post Road conceded receipt of the $4,065.42 check and that its calculations did not account for this check; therefore, the amount Post Road argues remains due is $13,851.22. The trial judge found -- and Post Road does not dispute -- that Post Road cashed the $4,065.42 check without reservation of its rights to additional monies for these expenses. The trial judges determination that Perimeter owed nothing more than the 2013 and 2015 CAM charges and late fees on the 2013 CAM charges and June 2015 rent payment at the close of the lease also was supported by testimony from a Certified Public Accountant employed by Perimeter who worked with one of Post Roads accountants to calculate the amount due at the termination of the lease. The trial judges resolution of the amount of money owed as of August 2015 was therefore not clearly erroneous.
2. Late fees. Post Road claims that section 6.06 of the parties’ lease creates a compounding ten percent per month late fee that begins accruing when charges become due.
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Per this logic, Post Road claims that Perimeter owes $63,627.42 in late fees on the balance Post Road claims was due at the end of the lease, accruing from September 1, 2015 to October 1, 2018.
The trial judge relied on section 25.02 of the lease to conclude that Perimeter did not owe the claimed amount of late fees. That section provides, “All notices, demands, requests and other communications provided for or permitted under this Lease shall be in writing, either delivered by hand or sent by certified mail, postage prepaid.” The trial judge found that the parties modified this requirement through their conduct of sending and accepting notice by first-class mail but a writing was still required.
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Post Road does not contend that this finding was clearly erroneous. There is no evidence in the record that Post Road sent Perimeter a written demand -- by any method -- for late fees on the 2013 CAM, the 2014 CAM, the July 2015 rent, the August 2015 rent, or the total $63,627.42 in late fees from September 1, 2015 to October 1, 2018.
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On the record before us, then, the trial judges finding that Perimeter does not owe late fees that Post Road did not demand is not clearly erroneous.
Post Roads claim that the trial judge should have awarded late fees on the 2015 CAM also fails. Perimeter was not late in paying the 2015 CAM charges; Post Road billed Perimeter on September 14, 2015, before the lease agreement contemplated such a bill. Post Road sent another statement of the 2015 CAM on February 24, 2016, and filed its small claims action two days later, on February 26, 2016. The trial court found that “[t]he leases provisions regarding the manner in which CAM charges and late fees were to be assessed are unambiguous and it is clear that Post Road did not follow the leases provisions in assessing these charges.” The lease provides that if it “expires prior to the end of a [c]alendar [y]ear, within thirty [30] days [of] the end of such [c]alendar [y]ear,” Post Road would provide Perimeter with a statement of the prorated CAM charges. Post Road therefore did not comply with the unambiguous terms of the lease, either in sending a bill in September of 2015 or in sending a bill on February 24, 2016. Post Road also brought its small claims action before Perimeter had the opportunity to pay the 2015 CAM pursuant to the terms of the lease, which allowed payment up to five days after receipt of the bill. “When a party to a contract is given sole discretionary power as to the occurrence of a condition [i.e., the date of sending the CAM bill and thus triggering the due date for those charges], the exercise of such right is measured by whether the party has acted honestly and in good faith.” S.M. v. M.P., 91 Mass. App. Ct. 775, 781 (2017), citing Murach v. Massachusetts Bonding & Ins. Co., 339 Mass. 184, 187 (1959). See also Robert & Ardis James Found. v. Meyers, 474 Mass. 181, 188 (2016) (“[E]very contract in Massachusetts is subject to an implied covenant of good faith and fair dealing”). The judge did not err in declining to award late fees on the 2015 CAM.
3. Attorneys fees. Post Road also claims that the trial judge erred by not awarding attorneys fees, contending that section 22.04 of the parties’ lease requires Perimeter to pay Post Roads attorneys fees incurred in this action, a claimed total of $36,760.33. Section 22.04 provides, in relevant part, “If any event of default provided for in Article 11 should occur and Landlord should employ attorneys or incur other expenses ․ Tenant agrees that it will on demand therefore reimburse the reasonable fees of such attorneys and such other expenses so incurred.” However, Article 11 is entitled “Covenant Against Liens” and specifically references mechanics’ liens. Post Road concedes that the conduct in question is not a default provided for in Article 11 but claims that the language of section 22.04 is ambiguous and could be construed to allow the award of attorneys fees when the tenant defaults on any part of the lease. The trial judge concluded that this provision is unambiguous, “specifically references mechanics[’] liens,” and does not allow for a fee award in this situation. We agree that this portion of the contract is unambiguous as a matter of law and does not require the award of attorneys fees in this case. Even if Post Road were correct that the contract is ambiguous, its argument would fail because an ambiguous attorneys fees provision is not enforceable. K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247, 258-259 (2014) (parties may contract for payment of attorneys fees through “clear and unambiguous language”).
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Judgment affirmed.
FOOTNOTES
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. This figure represents the total Post Road claimed was owed as of the end of the lease: $39,611.64, which includes the 2013 CAM, 2014 CAM, a late fee for the June 2015 rent, July 2015 rent, August 2015 rent, and late fees through August 31, 2015, less the security deposit.
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. Post Road calculated this late fee compounding monthly from September 1, 2015 until October 1, 2018.
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. Post Road calculated this late fee compounding monthly from October 2015 until October 2018.
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. Section 6.06 of the lease provides:“If any installment of Basic Rent or Additional Rent is not received in full within five (5) Business Days of its due date then, in addition to any other rights or remedies of the Landlord, upon demand of Landlord, Tenant shall pay for each month that rental payments are not made within such five (5) Business Days ten percent (10%) of each unpaid portion of such monthly installment as a liquidated damages charge arising out of and occurring as the result of each such late payment.”
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. The trial court did award $5,253.78 for the 2013 CAM and late fee and $927.15 in late fees for the June 2015 rent, both of which Post Road demanded via first-class mail. Post Road contends that the $5,253.78 was a $4,299.33 charge for the 2013 CAM and a $954.45 late fee for June 2014 rent. There was conflicting evidence about the cause of the $954.45 charge presented at trial. Regardless, neither party challenges the award of these amounts except insofar as Post Road contends it was entitled to additional monies in the judgment.
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. To say nothing of whether it is proper for Post Road to claim late fees that accrued after the termination of the lease.
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. Post Roads request for appellate attorneys fees is denied.