UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1737

MONSANTO COMPANY,

Plaintiff - Appellee,

v.

ARE-108 ALEXANDER ROAD, LLC,

Defendant - Appellant.

No. 14-1776

MONSANTO COMPANY,

Plaintiff - Appellant,

v.

ARE-108 ALEXANDER ROAD, LLC,

Defendant - Appellee. 

Appeals from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:10-cv-00898-WO-LPA)

Argued: September 15, 2015 Decided: November 25, 2015

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.
2

Affirmed by unpublished per curiam opinion.

ARGUED: Mark Everett McKeen, PAUL HASTINGS LLP, San Francisco, 

California, for Appellant/Cross-Appellee. Jonathan Michael 

Watkins, MOORE & VAN ALLEN PLLC, Charlotte, North Carolina, for 

Appellee/Cross-Appellant. ON BRIEF: Joseph H. Stallings, 

HOWARD, STALLINGS, FROM & HUTSON, P.A., Raleigh, North Carolina, 

for Appellant/Cross-Appellee. Scott M. Tyler, MOORE & VAN ALLEN 

PLLC, Charlotte, North Carolina, for Appellee/Cross Appellant.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

This case arises out of a commercial lease dispute between 

landlord ARE-108 Alexander Road, LLC (ARE-108) and tenant 

Monsanto Company (Monsanto). The first issue on appeal is 

whether the disputed lease provisions pertaining to Monsanto's 

obligation to pay rent are unambiguous. We find that the lease 

provisions are unambiguous and the district court properly 

granted summary judgment in favor of Monsanto. The second issue 

is whether North Carolina General Statutes § 6-21.2 authorizes 

Monsanto to recover attorneys’ fees. We find that it does not,

and therefore affirm the district court’s judgment on this issue

as well. 

I.

ARE-108 and Monsanto became parties to a lease for 

commercial property located in Research Triangle Park, North 

Carolina after Monsanto assumed the lease from the prior tenant 

in March 2005.1 The original lease term ran from November 1, 

2000 to October 31, 2010. During this time, the tenant owed 

monthly Base Rent of $26,250, adjusted annually. Section 41 of 

the lease gave the tenant the right to extend the lease by two 

 1 This lease is titled the “Phase 1B” lease. Monsanto and 

ARE-108 are also parties to two other leases for properties in 

Research Triangle Park; neither, however, is in dispute here.
4

five-year periods, during which no Base Rent would be payable. 

Section 41 states:

Extension Rights. Tenant shall have 2 consecutive 

rights . . . to extend the term of this Lease for 5 

years each (each, a “Term Extension”) on the same 

terms and conditions as this Lease . . . . During any 

Term Extension, no Base Rent . . . shall be payable; 

all other Rent shall remain payable . . . . 

J.A. 256. Together, the two Term Extensions spanned November 1, 

2010 to October 31, 2020. 

The lease contained an attorneys’ fees clause stating that 

the prevailing party in a lease dispute would be entitled to 

recover “all reasonable fees and costs.” J.A. 260.

In May 2005, shortly after Monsanto assumed the lease, 

Monsanto and ARE-108 executed the “First Amendment to Lease” 

(First Amendment), which amended various provisions of the lease

but explicitly retained Monsanto’s extension rights under 

Section 41:

Except as expressly amended and modified hereby, all 

of the terms and provisions of the Lease shall remain 

unchanged and in full force and effect . . . . In 

addition, Landlord hereby confirms and agrees that 

Tenant shall have all of the Extension Rights under 

Section 41 of the Lease and that the Extension Rights 

are in full force and effect.

J.A. 319. 

Approximately two years later, in November 2007, the 

parties executed a “Second Amendment to Lease” (Second 

Amendment) to “among other things, provide for additional 
5

options to extend the Term . . . of the Lease.” J.A. 329. The 

Second Amendment gave Monsanto the right to further extend the 

lease after it had exercised both Term Extensions:

Additional Right to Extend Term. Following the 

exercise by Tenant of both of its existing 5-year 

extension options under Section 41 of the Lease . . . 

Tenant shall have 2 consecutive rights . . . to extend 

the Term of this Lease, consisting of 1 right to 

extend the Term of this Lease for a period of 10 

years, and 1 final right to thereafter further extend 

the Term of this Lease for a period that expires on 

November 30, 2034 (each, an “Additional Extension 

Term”) on the same terms and conditions as this Lease 

(other than Base Rent) . . . .

Id. Together, the two Additional Extension Terms spanned

November 1, 2020 to November 30, 2034. 

During the Additional Extension Terms, Base Rent was to be 

determined by the “Market Rate,” as follows:

Upon the commencement of any Additional Extension 

Term, Base Rent shall be payable at the Market Rate 

(as defined below). Base Rent shall thereafter be 

adjusted . . . annual[ly] . . . by a percentage . . .

. As used herein, “Market Rate” shall mean the then 

market rental rate as determined by Landlord and 

agreed to by Tenant, which shall in no event be less 

than the Base Rent payable as of the date immediately 

preceding the commencement of such Additional 

Extension Term increased by 103% multiplied by such 

Base Rent. 

Id. 

Thus, Base Rent at the beginning of each Additional 

Extension Term would be set at the Market Rate agreed to by the 

parties, which could be no less than 103% of the Base Rent 

payable immediately prior. Thereafter, Base Rent would increase 
6

annually by a fixed percentage for the remainder of the 

Additional Extension Term. If the parties could not agree on 

the Market Rate, the matter would be submitted for arbitration. 

Finally, the Second Amendment explained the relationship 

between its provisions and those of the original lease, stating:

Except as amended and/or modified by this Second 

Amendment, the Lease is hereby ratified and confirmed 

. . . . In the event of any conflict between . . . 

this Second Amendment and . . . the Lease, the . . . 

Second Amendment shall prevail. Whether or not 

specifically amended by this Second Amendment, all of 

the terms and provisions of the Lease are hereby 

amended to the extent necessary to give effect to the 

purpose and intent of the Second Amendment.

J.A. 333.

In October 2009, Monsanto notified ARE-108 that it was 

exercising its right to the first Term Extension. ARE-108 sent 

Monsanto a Base Rent schedule for that Term Extension, to which 

Monsanto responded that it had no obligation to pay Base Rent 

pursuant to the lease. In November 2010, after the first Term 

Extension had commenced, ARE-108 declared Monsanto in default 

and threatened legal action. Monsanto responded by letter dated 

November 17, 2010 that it would pay the requested Base Rent 

“under protest,” but reserved the right to be refunded and 

further reserved “all rights . . . under the Lease and 

applicable law to recover . . . attorneys’ fees and costs.” 

J.A. 44.
7

Monsanto then filed the instant suit seeking a declaration

that it owed no Base Rent during the Term Extensions, the return 

of all Base Rent paid to ARE-108 under protest, and attorneys’ 

fees. Shortly after ARE-108 served its first request for 

documents, Monsanto moved for summary judgment. ARE-108 opposed

Monsanto’s motion, arguing that the lease was ambiguous and 

ARE-108 should be permitted to obtain discovery regarding its 

proper interpretation under Federal Rule of Civil Procedure 

56(d). 

The district court, adopting the recommendation of the 

magistrate judge, found the lease to be unambiguous and granted 

Monsanto summary judgment. The district court issued a 

declaratory judgment stating that: (a) Monsanto had no 

obligation to pay Base Rent during the two Term Extensions; (b) 

Monsanto was not in default for failing to pay such Base Rent; 

(c) ARE-108 was not entitled to take any adverse action against 

Monsanto for failure to pay such Base Rent; and (d) Monsanto was 

entitled to the return of all Base Rent, late fees, and interest 

paid under protest to ARE-108. The district court awarded as 

monetary damages all Base Rent and related charges Monsanto had 

paid under protest and prejudgment interest, totaling 

$2,023,915.24. However, the district court denied Monsanto’s 

request for attorneys’ fees, finding that such fees were not 

authorized by North Carolina General Statutes § 6-21.2. ARE-108 
8

appeals the district court’s grant of summary judgment.

Monsanto cross-appeals its denial of attorneys’ fees.

II.

We review the district court’s grant of summary judgment de 

novo, World-Wide Rights Ltd. P’ship v. Combe Inc., 955 F.2d 242, 

245 (4th Cir. 1992), and its denial of a Rule 56(d) request for 

discovery for abuse of discretion.2 McCray v. Md. Dep’t of 

Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014). 

In matters of contract interpretation, we have explained:

Only an unambiguous writing justifies summary judgment 

without resort to extrinsic evidence . . . . The first 

step for a court asked to grant summary judgment based 

on a contract’s interpretation is, therefore, to 

determine whether, as a matter of law, the contract is 

ambiguous or unambiguous on its face. If a court 

properly determines that the contract is unambiguous 

on the dispositive issue, it may then properly 

interpret the contract as a matter of law and grant 

summary judgment because no interpretive facts are in 

genuine issue. 

World-Wide Rights Ltd. P’ship, 955 F.2d at 245. If, instead, 

the contract is ambiguous, the court may evaluate extrinsic 

evidence to determine whether summary judgment is proper. Id. 

 2 Rule 56(d) requires that summary judgment be refused when 

the nonmovant “has not had the opportunity to discover 

information that is essential to his opposition.” Pisano v. 

Strach, 743 F.3d 927, 931 (4th Cir. 2014).
9

Under North Carolina law, “[p]arties can differ as to the 

interpretation of language without its being ambiguous.”3 Walton 

v. City of Raleigh, 467 S.E.2d 410, 412 (N.C. 1996). An 

ambiguity exists “when either the meaning of words or the effect 

of provisions is uncertain or capable of several reasonable 

interpretations.” Register v. White, 599 S.E.2d 549, 553 (N.C. 

2004). Additionally, “[a] latent ambiguity may arise where the 

words of a written agreement are plain, but by reason of

extraneous facts the definite and certain application of those 

words is found impracticable.” Miller v. Green, 112 S.E. 417, 

418 (N.C. 1922). With these principles in mind, we review the 

lease, as amended, to determine whether it is ambiguous as to 

Monsanto’s obligation to pay Base Rent during the Term 

Extensions. 

III.

Section 41 of the lease granted the tenant two Term 

Extensions, together spanning 2010-2020, during which “no Base 

Rent . . . shall be payable.” J.A. 256. The First Amendment 

affirmed that the Section 41 rights were “in full force and 

effect” when Monsanto assumed the lease. J.A. 319. ARE-108 

 3 The parties appear to agree that North Carolina law 

governs the interpretation and enforcement of the lease and its 

amendments. 
10

contends, however, that the Second Amendment implicitly revoked 

Monsanto’s right to pay no Base Rent during the Term Extensions. 

Even assuming arguendo that two sophisticated companies would 

implicitly revoke a right worth millions of dollars, the Second 

Amendment cannot reasonably be read as doing so. 

The Second Amendment granted Monsanto two Additional 

Extension Terms, together spanning 2020-2034, and set forth the 

applicable terms and conditions. Nothing in the Second 

Amendment purported to modify the prior Term Extensions, much 

less abolish Monsanto’s right to enjoy the Term Extensions

without paying Base Rent, as provided for in Section 41 of the 

lease. Rather, the Second Amendment explicitly confirmed that 

the Term Extensions remained governed by Section 41. See, e.g., 

J.A. 329 (“Following the exercise by Tenant of both of its 

existing 5-year extension options under Section 41 of the Lease 

. . . .”). 

We are not persuaded by ARE-108’s arguments to the 

contrary. ARE-108 first notes that the Additional Extension 

Terms could only be exercised after the Term Extensions and “on 

the same terms and conditions as this Lease (other than Base 

Rent).” J.A. 329 (emphasis added). ARE-108 argues that “the 

specific reference to the existence of Base Rent at the time of 

the potential exercise of the Additional Extension Right . . . 

clarifies that Base Rent is being paid by Monsanto to ARE-108 
11

immediately prior to the exercise of any Additional Extension 

Right.”4 Br. of Appellant/Cross-Appellee 26-27. We reject ARE108’s contorted reading. The quoted language simply indicates 

that new Base Rent provisions would govern the Additional 

Extension Terms, and the paragraph that follows in the Second 

Amendment specifies that Base Rent would be determined by the 

Market Rate. The quoted language has no effect on the Term 

Extensions. 

ARE-108 next points to the language stating that the Market 

Rate “shall in no event be less than the Base Rent payable as of 

the date immediately preceding the commencement of such 

Additional Extension Term increased by 103% multiplied by such 

Base Rent.” J.A. 329. ARE-108 argues that if no Base Rent were 

payable during the Term Extensions, which immediately preceded 

the commencement of the Additional Extension Terms, the quoted 

language would simply mean that the Market Rate could not be 

less than zero. ARE-108 contends that it would be “illogical” 

for the parties to use such complicated language if they simply 

intended for the Market Rate floor to be zero. Resp. and Reply 

Br. of Appellant/Cross-Appellee 14. 

 4 ARE-108 further asserts, without citation to any 

particular language in the Second Amendment, that Monsanto was

to continue paying Base Rent at $26,650 per month as adjusted.
12

This analysis, however, accounts only for the first 

Additional Extension Term. As discussed above, the Second 

Amendment established two Additional Extension Terms, with the

Market Rate to be determined at the start of each. ARE-108 

correctly observes that if no Base Rent were payable during the 

Term Extensions, the Market Rate floor for the first Additional 

Extension Term would be zero. However, the parties would still 

have to agree to a Market Rate, which would determine the Base 

Rent for the first Additional Extension Term. Thus, when 

determining the Market Rate for the second Additional Extension 

Term, the Market Rate floor would not be zero, but 103% of the 

Base Rent payable at the end of the first Additional Extension 

Term. With both Additional Extension Terms properly accounted 

for, the 103% language has effect and is not simply a convoluted 

way of saying zero. 

Furthermore, the fact that the Market Rate floor for the 

first Additional Extension Term may be zero does not render the 

“meaning” of the Second Amendment’s words or the “effect of 

[its] provisions” uncertain. Register, 599 S.E.2d at 553. The 

meaning is clear, even if ARE-108 finds it to be unfavorable. 

See Gas House, Inc. v. S. Bell Tel. & Tel. Co., 221 S.E.2d 499, 

504 (N.C. 1976) (“People should be entitled to contract on their 

own terms without the indulgence of paternalism by courts in the 

alleviation of one side or another from the effects of a bad 
13

bargain.” (quoting 14 Samuel Williston, A Treatise on the Law 

of Contracts § 1632 (3d ed. 1961))), overruled in part by State 

ex rel. Utils. Comm’n v. S. Bell Tel. & Tel. Co., 299 S.E.2d 763 

(N.C. 1983).

Lastly, ARE-108 cites the Second Amendment’s clause stating 

that “[i]n the event of any conflict” between the Second 

Amendment and the lease, the “Second Amendment shall prevail,” 

and “the terms and provisions of the Lease are hereby amended to 

the extent necessary to give effect to the purpose and intent of 

this Second Amendment.” J.A. 333. This language is of no avail 

to ARE-108 as there is no conflict between the Second Amendment 

and the Base Rent-free Term Extensions established in the lease, 

and no amendment to the lease is necessary to give effect to the 

Second Amendment.

Ultimately, the language ARE-108 cites cannot fairly be 

read as revoking Monsanto’s clearly established right to Base 

Rent-free Term Extensions. Thus, ARE-108 has not shown that the 

lease, as amended, is capable of multiple “reasonable 

interpretations.” Register, 599 S.E.2d at 553. Nor has ARE-108 

identified “extraneous facts” that make the definite application 

of the amended lease impracticable.5 Miller, 112 S.E. at 418. 

 5 ARE-108 insinuates that the present dispute implicates the 

parties’ other, “interrelated” leases for properties in Research 

Triangle Park. See, e.g., Br. of Appellant/Cross-Appellee 9-10. 

(Continued)
14

In short, ARE-108 has demonstrated no ambiguity, latent or 

otherwise, as to whether Monsanto owes Base Rent during the Term 

Extensions. Monsanto unambiguously does not.

Because the lease is unambiguous, the district court did 

not abuse its discretion in denying ARE-108’s Rule 56(d) request 

for discovery, as unambiguous contracts are to be construed 

without resort to extrinsic evidence. See World-Wide Rights 

Ltd. P’ship, 955 F.2d at 245; see also Piedmont Bank & Trust Co. 

v. Stevenson, 339 S.E.2d 49, 52 (N.C. Ct. App. 1986), aff’d, 344 

S.E.2d 788 (N.C. 1986) (“When the language of the contract is 

clear and unambiguous . . . the court cannot look beyond the 

terms of the contract to determine the intentions of the 

parties.”) (internal citation omitted).6

 

However, ARE-108 never explains how those leases affect the 

interpretation of the lease presently in dispute. Thus, those 

leases do not provide a basis for finding a latent ambiguity. 

ARE-108 also recites the principle that a contract 

“encompasses not only its express provisions but also all such 

implied provisions as are necessary to effect the intention of 

the parties unless express terms prevent such inclusion.” Lane 

v. Scarborough, 200 S.E.2d 622, 624 (N.C. 1973). However, we

will not read in a provision requiring Monsanto to pay Base Rent 

during the Term Extensions. Such a provision is not necessarily 

implied by amended lease and contradicts its express terms. 

6 For this reason, we do not consider the extrinsic evidence 

submitted by ARE-108. We also do not consider ARE-108’s 

argument, raised for the first time on appeal in its reply 

brief, that it was denied an opportunity to present a defense of 

mutual mistake. See Muth v. United States, 1 F.3d 246, 250 (4th 

Cir. 1993) (explaining that issues raised for the first time on 

(Continued)
15

Accordingly, we affirm the district court’s grant of 

summary judgment to Monsanto.

IV.

Monsanto cross-appeals the district court’s denial of its 

request for attorneys’ fees under North Carolina General 

Statutes § 6-21.2. We review de novo the district court’s 

resolution of questions of state law. Food Lion, Inc. v. 

Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir. 1999).

The North Carolina Supreme Court has explained that 

contractual attorneys’ fees provisions are generally not 

enforceable under North Carolina law: 

[T]he jurisprudence of North Carolina traditionally 

has frowned upon contractual obligations for 

attorney’s fees as part of the costs of an action. . . 

. Thus the general rule has long obtained that a 

successful litigant may not recover attorneys’ fees, 

whether as costs or as an item of damages, unless such 

a recovery is expressly authorized by statute. Even in 

the face of a carefully drafted contractual provision 

indemnifying a party for such attorneys’ fees as may 

be necessitated by a successful action on the contract 

itself, our courts have consistently refused to 

sustain such an award absent statutory authority 

therefor.

 

appeal will not be considered absent exceptional circumstances); 

Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) 

(explaining that arguments raised for the first time in a reply 

brief are not properly before the Court).
16

Stillwell Enters., Inc. v. Interstate Equip. Co., 266 S.E.2d 

812, 814-15 (N.C. 1980) (internal citations omitted). 

Monsanto claims that § 6-21.2 provides the statutory 

authority necessary to enforce the lease’s attorneys’ fees

clause. That statute “allows an award of attorneys’ fees in 

actions to enforce obligations owed under an evidence of 

indebtedness that itself provides for the payment of attorneys’ 

fees.” Trull v. Cent. Carolina Bank & Tr., 478 S.E.2d 39, 42 

(N.C. Ct. App. 1996)(quotation omitted), aff’d in part, review 

dismissed in part, 490 S.E.2d 238 (N.C. 1997). Section 6-21.2 

states, in relevant part:

Obligations to pay attorneys’ fees upon any note, 

conditional sale contract or other evidence of 

indebtedness . . . shall be valid and enforceable, and 

collectible as part of such debt, if such note, 

contract or other evidence of indebtedness be 

collected by or through an attorney at law after 

maturity, subject to the following provisions:

. . . .

(2) If such note, conditional sale contract or 

other evidence of indebtedness provides for the 

payment of reasonable attorneys’ fees by the debtor, 

without specifying any specific percentage, such 

provision shall be construed to mean fifteen percent 

(15%) of the “outstanding balance” owing on said note, 

contract or other evidence of indebtedness.

N.C. Gen. Stat. § 6-21.2. The party seeking attorneys’ fees 

must provide notice to the debtor, and if the debtor pays the 

outstanding balance within “five days from the mailing of such 

notice . . . . the obligation to pay the attorneys’ fees shall 

be void.” Id. § 6-21.2(5). 
17

Monsanto argues that the lease is evidence of ARE-108’s 

indebtedness to Monsanto for the Base Rent Monsanto paid under 

protest, and that Monsanto is thus entitled to attorneys’ fees 

of fifteen percent of the final judgment. We disagree.

As Monsanto notes, § 6-21.2 is a remedial statute that is 

“construed liberally to accomplish the purpose of the 

Legislature.” Stillwell Enters., Inc., 266 S.E.2d at 817

(quoting Hicks v. Albertson, 200 S.E.2d 40, 42 (N.C. 1972)). 

Thus, while it most commonly applies to promissory notes and 

conditional sale contracts, the term “evidence of indebtedness” 

is broadly defined to include “any printed or written 

instrument, signed or otherwise executed by the obligor(s), 

which evidences on its face a legally enforceable obligation to 

pay money.” Id. at 293-94 (emphasis added). Applying this 

definition, the Stillwell court found that a lease of goods was 

an “evidence of indebtedness” because the lease “acknowledge[d] 

a legally enforceable obligation by plaintiff-lessee to remit 

rental payments to defendant-lessor as they become due,” and it 

was “executed by the parties obligated under its terms.” Id. at 

818. Similarly, a lease of real property may constitute 

“evidence of indebtedness.” See, e.g., RC Assocs. v. Regency 

Ventures, Inc., 432 S.E.2d 394, 397 (N.C. Ct. App. 1993).

However, even under this liberal definition, the lease here 

is not evidence of the indebtedness Monsanto seeks to collect, 
18

namely, the Base Rent that it paid under protest. Simply 

stated, the lease does not evidence “on its face” ARE-108’s 

obligation to return overpaid Base Rent. It therefore cannot be 

said that ARE-108 acknowledged such an obligation when it 

executed the lease. See Stillwell Enters., Inc., 266 S.E.2d at 

817 (“[A]n evidence of indebtedness . . . is a writing which 

acknowledges a debt or obligation and which is executed by the 

party obligated thereby.”)(emphasis added). 

It is not sufficient that ARE-108 may “owe” Monsanto the 

return of overpaid rent, or that the overpaid amount may be 

referred to as “debt.” Cf. Pantry Pride Enters., Inc. v. Glenlo 

Corp., 729 F.2d 963, 965 (4th Cir. 1984). To satisfy § 6-21.2, 

the debt must appear “on the face” of the instrument. It is 

similarly of no avail that the “pay-under-protest avenue is 

implicitly available to tenants under all leases.” Br. of 

Appellee/Cross-Appellant 48. Under Stillwell, an “evidence of 

indebtedness” may not be based on an implicit debt. Monsanto 

cites no authority to the contrary, and we decline to further 

extend an already broadly defined statutory term. 

Indeed, the interpretation advanced by Monsanto could

significantly expand the scope of § 6-21.2. For example, a 

party that breaches a contract typically “owes” damages to the 

non-breaching party. Monsanto’s interpretation would suggest 

that all contracts are therefore implicitly “evidence of 
19

indebtedness” for damages resulting from a breach. We do not 

think such an expansive reading is appropriate for a statute 

that, at its core, is meant to apply to notes, conditional sale 

contracts, and similar debt instruments.

Monsanto further argues that as a matter of policy, 

§ 6-21.2 should be construed as authorizing attorneys’ fees here 

because, had Monsanto instead refused to pay the disputed rent, 

and had ARE-108 filed suit and prevailed, ARE-108 would likely 

be entitled to attorneys’ fees under § 6-21.2. 

However, § 6-21.2 is not a bilateral statute. It “governs 

only attorney’s fees for the creditor’s attorney,” In re Vogler 

Realty, Inc., 722 S.E.2d 459, 464 (N.C. 2012), and its purpose 

“is to allow the debtor a last chance to pay his outstanding 

balance and avoid litigation, not to reward the prevailing party 

with the reimbursement of his costs in prosecuting or defending 

the action.” Trull, 478 S.E.2d at 42. Thus, § 6-21.2 does not 

contemplate equivalent outcomes for both parties. 

Moreover, in the hypothetical scenario proposed by 

Monsanto, ARE-108 would be entitled to attorneys’ fees because 

Monsanto’s obligation to pay rent appears “on the face” of the 

lease. However, ARE-108’s obligation to return overpaid rent 

does not. In our view, the requirement that the debt appear “on 

the face” of the instrument is not merely a technicality, but 

serves an important policy purpose. That is, because only the 
20

debtor may be liable for attorneys’ fees under § 6-21.2, it is 

important that the debt to which the attorneys’ fees attach 

appears “on the face” of the instrument executed by the debtor 

(as is the case with most debt instruments). Awarding

attorneys’ fees based on an implied debt not appearing “on the 

face” of the instrument would eliminate this protection for 

debtors. For this reason, granting Monsanto attorneys’ fees 

here would not serve the purpose of the statute “just as much”

as granting ARE-108 attorneys’ fees would in the converse 

scenario posed by Monsanto. Br. of Appellee/Cross-Appellant 50.

We conclude that, under the facts presented here, the lease 

is not an “evidence of indebtedness” under § 6-21.2.7 Thus, we 

affirm the district court’s denial of Monsanto’s request for 

attorneys’ fees.8

 7 We therefore need not decide whether Monsanto has 

satisfied the other requirements of this statute.

8 Our reasoning differs somewhat from the district court’s. 

See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 

1996)(explaining that courts of appeals may “uphold judgments of 

district courts on alternate grounds”). Among other things, the 

district court found that Monsanto’s claim to recover overpaid 

Base Rent arose, not under the lease, but under a “separate 

agreement settling, in part, claims that were threatened” by 

ARE-108. J.A. 720. The district court found that such separate 

agreement contained no attorneys’ fees provision. Id. On 

appeal, both parties contend that no such separate agreement 

existed, and we agree. 
21

V.

For these reasons, we affirm the district court.

AFFIRMED