Jacobs Plaza, Inc. v. Holland-David Enterprises, LLC

In Jacobs Plaza, Inc. v. Holland-David Enterprises, LLC, 2008 WL 1919099 (Ky. Ct. App. 2008), Frost Brown Todd was successful in overturning an unfavorable Jefferson Circuit Court Judgment at the Kentucky Court of Appeals. Peter Cummins, Bart Greenwald and Chris Johnson represented a commercial landlord in Louisville in an action against a former tenant for unpaid rent, attorney’s fees and late fees under a lease. The trial court concluded that the landlord had waived the right to recover additional amounts of rent owed pursuant to a holdover provision in the lease because it had repeatedly accepted payment at a lower rental rate and issued statements to the tenant confirming that the lower amount was due for nearly a year. The Court of Appeals reversed, finding that based on the terms of the lease, the landlord was entitled to recover the full amount sought, attorney’s fees and prejudgment interest going back to October 2000. While the Court of Appeals’ finding is consistent with the language of the lease, it appears to be the first Kentucky decision (albeit "not to be published") in which the court found that a contract’s "no modification" provision cannot be waived by conduct of the parties. The Kentucky Supreme Court has since denied Holland-David’s Motion for Discretionary Reivew, making the Judgment final.