
    
      OPINION ISSUED JANUARY 18, 2008
    
    
      MORRIS SQUARE ASSOCIATES VS. INSURANCE COMMISSION
    (CC-06-301)
    G. Nicholas Casey Jr. and Spencer D. Elliott, Attorneys at Law, for claimant.
    Ronald R. Brown and Gretchen Murphy, Assistant Attorneys General, for respondent.
   PER CURIAM:

This claim was submitted to the Court for decision upon a Stipulation entered into by claimant and respondent wherein certain facts and circumstances of the claim were agreed to as follows:

1. Morris Square Associates, a West Virginia limited partnership, (hereinafter referred to as “Lessor”) leased unto tíre State of West Virginia, by the Secretary of the Department of Administration, (hereinafter referred to as “Lessee”) an office space located in a four story building known as “The Greenbrooke” in Charleston, Kanawha County. The Insurance Commission was the tenant of this office space (hereinafter referred to as “Tenant”).

2. The contract period began on May 3,1995, and ended onAugust31, 2005.

3. The lease, unlike other leases, did not expressly make the Lessee responsible for the cost of trash or garbage service.

4. The Lessor paid the garbage services for the leased office space for the full ten years of the lease and did not bill the Lessee or the Tenant for that service during the ten year period of the lease.

5. The Lessor was aware that it was not billing for trash disposal during the term of this lease and on several occasions made statements that it should bill for the trash disposal.

6. There were at least six amendments to the lease over the ten year term in which the Lessor had the opportunity to negotiate an amendment to the lease to include the cost of trash disposal as a responsibility of the Tenant and failed to do so.

7. The Lessor seeks to recover $19,891.51 for the cost of trash or garbage service to the Tenant during the term of the lease.

8. The Lessee and Tenant plead the affirmative defenses of statute of limitations and latches contending thattheportionoftheLessor’sclaimsforthe years 1995 and 1996 were barred by the statute of limitations and that the Lessee and Tenant were prejudiced by the delay of the Lessor making its claim in that the Lessee and Tenant could have canceled the lease with thirty (30) days notice had such claim been made. In addition, the Lessee and Tenant lost their ability to cancel and renegotiate the lease because no such claim for trash or garbage service was made by the Lessor during the ten year term of the lease and the Lessee and Tenant lost the ability to request additional services in exchange for the requested cost of trash and garbage services.

9. The Lessee and Tenant have offered to admit to the Lessor a claim in the sum of $4,634.00 as a full settlement of all claims arising from the leasing agreements between the Lessor and the Lessee and Tenant.

10. The settlement figure shall not be subject to interest.

11. Lessor agrees to release the Lessee and Tenant from any and all other claims against them arising out of the facts and circumstances of this claim and any other claim that Lessor has or may have as a result of the Lessor-Lessee relationship between Lessor and Lessee and the Tenant regarding “The Greenbrooke Lease.”

The Court finds that the amount agreed to by the parties is fair and reasonable. Thus, the Court is of the opinion to and does make an award in the amount of $4,634.00.

Award of $4,634.00.  