
    
      OPINION ISSUED NOVEMBER 25, 1987
    
    EASTERN ASSOCIATES, A LIMITED PARTNERSHIP VS. BOARD OF REGENTS
    (CC-87-156)
    H. Thomas Corrie, Representative of Eastern Associates, for claimant.
    Robert D. Pollitt, Assistant Attorney General, for respondent.
   PER CURIAM:

Claimant and respondent entered into a lease agreement on December 18, 1976 for a building at 950 Kanawha Boulevard, East, in Charleston. Rent was $5,728.00 monthly. Subsequently, claimant and respondent entered into a second lease agreement dated October 29, 1986. Claimant contends that the rent for the month December, 1986 was proffered by respondent under the terms of the 1976 agreement instead of the terms of the second lease agreement. Claimant seeks $6,314.00.

H. Thomas Corrie, general partner of Eastern Associates, testified that respondent paid only partial rent for the month of December, 1986. The amount paid by respondent was $5,728.00, in accordance with the 1976 lease, rather than $12,042.00, the amount of rent under the new lease. Claimant accepted the $5,728.00 as a down payment or partial payment of the December 1986 rent only. He stated that under the terms of the old lease, respondent rented two floors of the building. The new lease gave respondent three floors. The terms of the current lease also provided for renovations to the building to be performed by the claimant. The premises were not ready for occupancy as the renovations were not completed by December 1, 1986.

Dr. K. Edward Grose, Vice-Chancellor for Administrative Affairs for respondent, testified that he was familiar with the agreement for the renovations to the building leased by claimant to the respondent. He stated that the Commissioner of Finance and Administration formalized the new lease, but Dr. Grose was unaware of the date on the new lease as he was not required to sign it.

It is the opinion of the Court that the parties are bound by the provisions of the lease in effect December 1, 1986, which provides the following:

"This agreement supersedes and rescinds that contract of lease dated December 18, 1976, made by and between the parties hereto, relative to the subject premises, said contract of lease being hereby terminated as of midnight on the 30th day of November, 1986."

The new lease clearly provides that $12,042.00 is the amount of rent to be paid by respondent for December, 1986. Therefore, the Court makes an award to the claimant in the amount of $6,314.00 which is the difference in the amount that claimant actually received from respondent for the December rent and the amount recited in the new lease.

Award of $6,314.00.  