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Tagged Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN RE:

CINEMEX USA REAL ESTATE 

HOLDINGS, INC, et al.,

Debtors.

_________________________________/

CASE NO. 20-14695-BKC-LMI

Chapter 11

Jointly Administered

MEMORANDUM OPINION ON COBB LAKESIDE’S

MOTION TO COMPEL COMPLIANCE WITH SECTION 365(d)(3)

This matter came before the Court for final hearing on August 21, 2020 on 

the Motion to Compel Compliance with Section 365(d)(3) filed by Cobb Lakeside, 

LLC (ECF #366) (the “Motion to Compel”). On October 13, 2020, this Court 

Laurel M. Isicoff

Chief United States Bankruptcy Judge

___________________________________________________________________________

ORDERED in the Southern District of Florida on January 26, 2021.

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entered its Order Granting in Part and Denying in Part Cobb Lakeside’s Motion to 

Compel Compliance with 11 U.S.C. §365(d)(3) (ECF #707) (the “Order”), finding, 

for the reasons stated on the record and outlined below, that there is no 

administrative claim for unpaid rent for the period March 20, 2020 through June 

4, 2020, but there is an administrative claim for unpaid rent from June 5, 2020 

forward.1

FACTS

Cinemex USA Real Estate Holdings, Inc. (“Cinemex Real Estate”), Cinemex 

Holdings USA, Inc. (“Cinemex Holdings”), and CB Theater Experience LLC (“CB 

Theater” and, with Cinemex Real Estate and Cinemex Holdings, the “Debtors”) 

filed Voluntary Chapter 11 Petitions in this Court on April 25, 2020, and April 

26, 2020 (the “Petition Date”). The Debtors are in the movie theater business and 

operated 41 movie theaters across 12 states. At the time of filing, the Debtors, 

collectively, were party to 41 unexpired real property leases for where they 

operate upscale dine-in movie theaters. One of those leases (the “Lakeside 

Lease”) is between the Debtor CB Theater as Lessee and Cobb Lakeside, LLC 

(“Lakeside”) as Lessor. The Lakeside Lease relates to a movie theater property

(the “Lakeside Theater”) located at the Lakeland Village Shopping Center in 

Lakeland, Florida. 

1 The Court read its ruling into the record at a hearing on October 2, 2020. See Transcript of 

10/2/2020 Hearing (ECF #694). This memorandum opinion reduces that oral ruling to writing 

(with some additions and clean-up). However, neither the substance nor the conclusion of that 

ruling has been altered. 

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PROCEDURAL HISTORY

Immediately after the bankruptcy cases were filed, the Debtors sought 

authority to reject several leases and, with respect to the balance of the leases, 

sought to delay or excuse payment of rent. The Debtors filed Debtors’ Emergency 

Motion for Entry of an Order (I) Extending Time for Performance of Obligations 

Arising Under Unexpired Real Property Leases; (II) Establishing Temporary Case 

Administration Procedures; and (III) Granting Related Relief (ECF #92) (the 

“Original Rent Motion”).2

In the Original Rent Motion, the Debtors sought to delay payment of 

administrative rent for a period of sixty days as authorized by 11 U.S.C. 

§365(d)(3). Further, the Debtors requested that all lease payments be suspended 

completely. The Debtors argued that, while section 365(d)(3) “requires a debtor 

to satisfy all postpetition obligations under an unexpired lease of nonresidential 

real property until the date of rejection,”3 for a variety of reasons under nonbankruptcy law based on the terms of the leases, the “takings doctrine,” 

impossibility of performance, and frustration of purpose, the Debtors had no 

postpetition obligation under their leases to pay rent while the theaters were 

ordered closed due to the COVID-19 pandemic. 

At the conclusion of the first hearing on the Original Rent Motion, the 

Debtors agreed to provide a detailed brief detailing which leases, and under 

2 A hearing on the Original Rent Motion was continued several times with respect to various 

landlords with whom the Debtors were negotiating rent concessessions. However, Lakeside did 

not agree to these extensions.

3 In re CHS Electronics, Inc., 265 B.R. 339, 344 (Bankr. S.D. Fla. 2001).

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which theories, the Debtors believed their rent payment obligations were

suspended (the “Rent Suspension Brief”).4 The Rent Suspension Brief divided the 

unexpired leases into several categories, identifying with respect to each lease 

the basis for the Debtors’ request for suspension of lease payments.5 CB Theater

identified the equitable doctrines of impossibility of performance and frustration 

of purpose as its justification for suspension of payments under the Lakeside 

Lease from March 20, 2020 when Florida Governor Ron DeSantis closed the 

movie theaters in Florida, until the theaters actually reopened. CB Theater

argued that performance under the Lakeside Lease was impossible during the 

time theaters were ordered to close completely and that the purpose of the 

Lakeside Lease was frustrated by the COVID-19 pandemic and the closure 

orders, which not only shut down the Debtors’ operations, but also caused the 

cessation of movie production, and therefore, no new movie titles were released. 

CB Theater also sought excused rent, or reduced rent, when, once 

reopened, capacity in the Lakeside Theater was limited to fifty percent

occupancy.6 CB Theater argued that the purpose of the Lakeside Lease remained

frustrated due to the lack of new movie title releases and the public’s reluctance 

4 Brief In Support of Debtors’ Motion Abating Performance of Obligations Under Unexpired Real 

Property Leases (ECF #299). 

5 The Debtors cited to the “takings” clauses contained in their leases, the doctrines of 

impossibility and frustration of purpose, and force majeure clauses contained in their leases as 

grounds for suspension of the Debtors’ rent obligations under the respective leases. 

6 Governor DeSantis closed all movie theaters on March 20, 2020 by Executive Order No. 20-70. 

On June 5, 2020, by Executive Order No. 20-139, movie theaters were allowed to reopen at fifty 

percent capacity, except in Miami-Dade, Broward, and Palm Beach counties, where theaters 

remained closed.

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to go to theaters amidst the COVID-19 pandemic, and that rent should be abated 

until the full reopening of movie theaters.

In addition to objecting to any continuance of the Original Rent Motion,

Lakeside filed its Motion to Compel arguing that CB Theater should be compelled 

to pay all rent due under the Lakeside Lease from the Petition Date forward.

Lakeside argued that the doctrines of impossibility and frustration of purpose 

did not apply once CB Theater was able to reopen at fifty percent capacity, and 

argued that the provisions of the Lakeside Lease did not excuse the requirement 

to pay rent for acts of God and governmental action.7

ANALYSIS8

The Lakeside Lease is governed by Florida law. Florida law recognizes both 

the doctrine of impossibility of performance and the doctrine of frustration of 

purpose with respect to contract obligations. “Impossibility of performance refers 

to those factual situations, too numerous to catalog, where the purposes, for 

which the contract was made, have, on one side, become impossible to perform.” 

Home Design Ctr.--Joint Venture v. Cty. Appliances of Naples, Inc., 563 So. 2d 

767, 770 (Fla. 2d DCA. 1990) (internal quotations omitted); See also 11 Fla. Jur. 

2d Contracts §261 (“A party that contracts absolutely and unqualifiedly to do 

something that is possible to be accomplished must make the promise good 

unless performance is rendered actually impossible by an ‘Act of God,’ the law, 

7 The Debtors’ Third Amended Chapter 11 Plan of Reorganization (ECF #772) (the “Plan”) was 

confirmed on November 25, 2020 (ECF #936). The Lakeside Lease was assumed by the Debtors 

by the terms of Article V.A. of the Plan.

8 The following constitute this Court’s findings of fact and conclusions of law under Fed. R. Civ. 

P. 52 made applicable to this proceeding by Fed. R. Bankr. P. 7052.

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or another party. Under Florida contract law, the defense of impossibility may 

be asserted in situations where the purposes for which the contract was made 

have, on one side, become impossible to perform.”); Cook v. Deltona Corp., 753

F.2d 1552, 1558 (11th Cir. 1985) (In determining whether, under the doctrine of 

impossibility of performance, a supervening event excuses the performance of a 

contract party, the court should not “pass on the relative difficulty caused by a 

supervening event, but [] ask whether that supervening event so radically altered 

the world in which the parties were expected to fulfill their promises that it is 

unwise to hold them to the bargain.”).

“Frustration of purpose refers to that condition surrounding the 

contracting parties where one of the parties finds that the purposes for which [it] 

bargained, and which purposes were known to the other party, have been 

frustrated because of the failure of consideration, or impossibility of performance 

by the other party.” Home Design Ctr., 563 So. 2d at 770; see also Equitrac Corp. 

v. Kenny, Nachwalter & Seymour, P.A., 493 So. 2d 548, 548 (Fla. 3d DCA 1986)

(holding, in a per curiam opinion, that because “the purpose for which the 

subject contract was formed became entirely frustrated . . . due to no fault of 

either party . . . . the contract was rendered unenforceable based on the doctrine 

of frustration of purpose.”). 

Florida law recognizes the difference between these two court-created 

doctrines: 

Impossibility of performance refers to the nature of the thing to be 

done, and not to the ability of the party to perform what the party 

has agreed to do. Impossibility of performance concerns those 

factual situations where the purposes for which the contract was 

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made have, on one side, become impossible to perform. In contrast, 

frustration of purpose arises when one of the parties finds that the 

purposes for which he or she bargained, and which purposes were 

known to the other party, have been frustrated because of the failure 

of consideration or impossibility of performance by the other party.

11 Fla. Jur. 2d Contracts §262.

Irrespective of whether performance is impossible or the purpose 

frustrated, the defenses are usually not available “if the relevant business risk 

was foreseeable at the inception of the agreement and could have been the 

subject of an express contractual agreement.” Home Design Ctr., 563 So. 2d at 

769. “As a general rule, a contract is not invalid, nor is the obligor discharged 

from its binding effect, because the contract turns out to be difficult or 

burdensome to perform.” Id. at 769-70.

The issue presented to the Court is whether and to what extent CB Theater

should be excused from any payment obligations under the Lakeside Lease, and 

for how long. Should CB Theater be able to suspend in full the payment of rent 

until it chooses to reopen the Lakeside Theater? Should CB Theater be able to 

suspend in full the payment of rent while the theaters were shut down by order 

of Governor DeSantis? And if CB Theater is obligated to pay rent upon the 

suspension of the government orders, which allowed the Lakeside Theater to 

reopen (albeit at reduced capacity) on June 5, 2020, how much rent, if any,

should CB Theater be obligated to pay from June 5, 2020 on?

CB Theater argues that it is entitled to the relief sought for several reasons:

when Governor DeSantis ordered all movie theaters to close, it was impossible 

for CB Theater to operate a movie theater, as required by the Lakeside Lease; the 

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purposes of the Lakeside Lease were frustrated by the COVID-19 pandemic itself 

– because even after movie theaters were reopened in Florida (albeit at reduced 

attendance) few people wanted to attend, and movie studios curtailed all new 

movie releases.9 In sum, CB Theater argues, not unfairly, “neither of the parties 

assumed the risk of states ordering the closure of movie theaters in the face of 

an unprecedented global virus transmission.” And CB Theater argues it should 

still not have to pay rent once Florida allowed the theater to reopen at fifty 

percent capacity because “opening the theater, even at 50% capacity, is a futile 

act” as the COVID-19 pandemic is keeping people home and the studios from 

releasing movies to theaters. For all those reasons, CB Theater argues, it is not 

required to pay rent until it fully reopens the Lakeside Theater.

Lakeside counters that Governor DeSantis authorized movie theaters to 

reopen at fifty percent capacity as of June 5, 2020, and CB Theater’s decision 

not to reopen on that date does not mean that CB Theater could not open on that 

date. Thus, not only was it possible for CB Theater to perform its obligations 

under the Lakeside Lease, the purpose of the Lakeside Lease – to operate a movie 

theater – was not frustrated. CB Theater’s determination that it can only show 

“first run” movies is not a provision of the Lakeside Lease or the underlying 

ground lease. Basically, Lakeside argues, CB Theater’s decision to delay 

reopening was a financial decision, and that does not excuse performance under 

either doctrine. More importantly, Lakeside argues, Article 59 of the Lakeside 

9 Those “first run” movies the Debtors describe as “the lifeblood of the Debtors’ high-quality movie 

experience.” 

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Lease does not excuse the requirement to pay rent for acts of God and 

governmental action, and therefore, although Lakeside agreed to delay rental 

payments for the first sixty days postpetition, CB Theater must now pay rent 

owing from the Petition Date, including that which accumulated during the 

closure.

Lakeside does not dispute that it was impossible for CB Theater to operate 

the movie theater while the shutdown orders were in place. Thus, with respect 

to rent accruing during the government ordered shutdown, the only issue is 

whether it was foreseeable at the time the Lakeside Lease was made that this 

shutdown would occur. The answer is “yes” and “no.” Clearly the events that 

caused the shutdown were not foreseeable. However, the Lakeside Lease 

contemplated that parties might not be able to perform their obligations under 

the Lakeside Lease due to acts of God or governmental action. Article 59, titled 

“Effect of Unavoidable Delays,” states 

If either party to this Lease, as the result of any (i) strikes, lockouts 

or labor disputes, (ii) inability to obtain labor or materials or 

reasonable substitutes therefor, (iii) the inability to obtain materials 

or labor at reasonable prices due to the occurrence of a hurricane or 

other nature disaster or due to terrorism; (iv) acts of God, 

governmental action, condemnation, civil commotion, fire or other 

casualty, or (v) other conditions similar to those enumerated in 

this Section beyond the reasonable control of the party obligated 

to perform (other than failure to timely pay monies required to be 

paid under this Lease), fails punctually to perform any obligation on 

its part to be performed under this Lease, then such failure shall be 

excused and not be a breach of this Lease by the party in question, 

but only to the extent occasioned by such event.

(emphasis added). And so, according to the Lakeside Lease, the failure to operate 

the Lakeside Theater (an obligation under the Lakeside Lease) is excused due to 

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the shut down orders. Because there is a contractual provision that excuses CB 

Theater’s performance while the theater was shut down by government order, it 

is unnecessary for the Court to apply the doctrine of impossibility of 

performance.10

The Court now turns to the period after June 5, 2020. The purpose of the 

Lakeside Lease is to operate a movie theater. After June 5, 2020 it was, as 

Lakeside points out, possible for CB Theater to operate a movie theater. 

Therefore, there was no frustration of purpose. 

But CB Theater argues that the cost of reopening makes reopening 

impracticable. “The Debtors’ projections show that at 50% capacity coupled with 

increased costs of providing appropriate personal protective equipment and 

enforcement of social distancing rules will result in negative operating income. . 

. . Because the major movie studios will not release new titles until mid-to lateAugust, the Debtors anticipate overwhelming downward pressure on top-line 

revenue.”11 CB Theater argues that impracticability as well as impossibility are 

covered by the doctrine of frustration of purpose, citing to Hopfenspirger v. West, 

949 So. 2d 1050, 1054 (Fla. 5th DCA 2006) (“The doctrine [of ‘frustration of 

purpose’] is not limited to strict impossibility, but includes ‘impracticability’ due 

to unreasonable expense.”). However, the Florida court case12 to which the 

Hopfenspirger court refers in support of this proposition, that frustration of 

10 CB Theater is not the original Lessee under the Lakeside Lease. The original Lessee was Cobb 

Theatres III, LLC. CB Theater assumed the Lakeside Lease on September 22, 2017. See Lease 

Assignment and Assumption Agreement (ECF #586-1) 11 See Declaration of Jose Leonardo Marti (ECF #380). 12 Equitrac Corp, 493 So. 2d 548.

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purpose includes impracticability due to unreasonable expense, says no such 

thing. In Valencia Center, Inc v. Publix Super Markets, Inc., 464 So. 2d 1267, 

1269 (Fla. 3d DCA 1985) the court did write that “impossibility of performance 

can include extreme impracticability of performance” but the court noted that 

“courts are reluctant to excuse performance that is not impossible but merely 

inconvenient, profitless, and expensive to the lessor.” 

CB Theater expressed a second concern – “operating a theater in the 

middle of a pandemic with increasing transmission rates and increasing cases 

per capita requires consideration of potential claims against the Debtors’ 

bankruptcy estates and the potential for administrative claims for post-petition 

tort liability for which there may be no insurance coverage.”13 But this concern 

is belied by the fact that the Debtors have now, in fact, reopened movie theaters 

notwithstanding that there is still an ongoing pandemic, and therefore this 

concern, while legitimate, does not frustrate the Debtors’ ability to reopen 

theaters. Debtors’ concerns about the health and safety of its employees and the 

audiences is laudable and reasonable, but addressing those concerns clearly is 

one of timing and not ability, as there are many businesses that have had to 

figure out how to reopen under the safety concerns and restrictions, and they, 

like the Debtors at this point, have figured out how to do so.

There is no question that the COVID-19 pandemic was completely 

unforeseeable (although a slow down in audience attendance or a dearth of new 

releases is not), and certainly not the fault of either contract party. But, once the 

13 See Declaration of Jose Leonardo Marti (ECF #380).

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Lakeside Theater was allowed to reopen, it was possible for CB Theater to reopen;

CB Theater chose not to do so for what appears, based on the Marti declaration, 

to be primarily economic concerns. Therefore CB Theater’s performance under 

the Lakeside Lease from June 5, 2020 on is not excused under the doctrine of 

frustration of purpose.

Now to the payment obligations. Lakeside argues that the phrase in Article 

59 of the Lakeside Lease “other than the failure to timely pay monies” means 

that the obligation to pay rent is not excused or delayed by acts of God or 

government orders, and therefore full rent from the Petition Date is due and 

payable. However, Article 59 is not the force majeure clause of the Lakeside 

Lease; it appears to be an excuse of breach provision. Article 8, titled “Beginning 

Construction; Delivery by Landlord” appears, notwithstanding its title, to be the 

force majeure clause. That provision states “[i]f the performance by Landlord or 

Tenant of any of its obligations under this Lease is delayed by reason of “Force 

Majeure”, the period for the commencement or completion thereof shall be 

extended for a period equal to such delay.” (emphasis added). The Lakeside Lease 

definition of force majeure includes “acts of God” and “governmental restrictions” 

and, “any other act over which the performing party has no control, excluding 

financial ability of the performing party.”

The Court does not agree with Lakeside’s interpretation of Article 59. The 

parenthetical “other than the failure to timely pay monies” is part of romanette 

(v) – the “other conditions” phrase. Were the failure to pay money not an 

obligation to be excused, that parenthetical would have appeared in the latter 

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part of the sentence – probably after “fails punctually to perform any obligation. 

. . .” This interpretation of Article 59 is consistent with its counterpart, Article 8 

of the Lakeside Lease, which makes it clear that the failure to pay rent falls under 

the “any other act” clause. Article 8 addresses the remedy for failure to pay rent 

due to those acts of God or government restrictions – the obligation is extended.

Therefore, the Court finds that CB Theater was excused from paying rent 

until the Lakeside Theater was allowed to reopen. But will CB Theater ever be 

obligated to pay the rent that accrued during the closure period? Article 8 of the 

Lakeside Lease states “the period for the commencement or completion thereof 

shall be extended for a period equal to such delay.” Thus the Lakeside Lease

provides14 that the time of non-performance (not being able to operate a movie 

theater and pay rent) will be added to the end of the lease term, and along with 

that extension, the obligation to pay the rent. Consequently there is no rent due 

for the period of closure, but the term of the Lakeside Lease (unless that lease is 

rejected) is extended by the amount of time the movie theater was closed.15

What about the rent on and after June 5, 2020? CB Theater submits that, 

while it believes it should be entitled to complete rent relief until it fully reopens

the Lakeside Theater, CB Theater argues that at a minimum it should only have 

to pay fifty percent of the rent until full reopening is allowed. In support of this 

argument, CB Theater cites to In re Hitz Restaurant Group, 616 B.R. 374 (Bankr. 

14 As the Court noted at the hearing, the Lakeside Lease is not a well drafted document.

15 Because CB Theater assumed the Lakeside Lease, the Court was not required to determine 

whether the extended lease payments could be included as part of the rejection damages, since 

arguably, the extended payments could be considered “unpaid rent due under such lease.” 11 

U.S.C. §502(b)(6).

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N.D. Ill. 2020). In that case, the court found that the Illinois closure orders 

triggered a force majeure clause under the lease at issue, but further held that, 

because the debtor was able to operate take out and delivery, the debtor would 

need to pay some kind of proportional rent.16 However, in this case, the force 

majeure clause, as the Court has already found, excused all payment of rent 

during the closure, but adds on time to the end of the lease. And there is nothing 

in the Hitz case that fashioned a payment remedy in the event of frustration of 

purpose.17 

These times have not been easy for most people. And while some have had 

the good fortune to be able to continue to work during this unprecedented health 

crisis, others have not been as fortunate. The burden on businesses that rely 

on the public such as theaters, restaurants, bars, hotels and the travel industry, 

as well as their landlords, have been hit particularly hard. And for the most 

part, the affected parties have tried to negotiate a resolution that is painful but 

practical to insure that “on the other side” there will be something left. An 

example where these obstacles could not be overcome is the Pier 1 bankruptcy –

where the failure – for whatever reasons – of the parties to come to a resolution 

resulted in a complete closure of the business.18

16 Because the text of the relevant lease’s entire force majeure clause was not included in the 

opinion, it is not clear if the lease specifically provided a remedy. This Court presumes that it did 

not, and that the court tried to fashion an equitable remedy that recognized the debtor’s ability 

to generate some revenue, and therefore at least some obligation to pay rent. 

17 Even were the Court inclined to refer to the Hitz case as guidance in fashioning an equitable 

remedy regarding the payment of rent after the Lakeside Theater was able to reopen, it declines 

to do so. The Court has ruled that CB Theater is not entitled to invoke the equitable doctrine of 

frustration of purpose with respect to the time period on and after June 5, 2020, and thus, it is 

not necessary to determine an appropriate remedy. 

18 In re Pier 1 Imports, Inc., 615 B.R. 196 (Bankr. E.D. Va. 2020).

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But in the absence of agreed upon resolution, we are left with the 

resolutions that parties have bargained for in their contracts, or, where 

appropriate, the equitable remedies that common law has fashioned. 

In looking at those sources of resolution, and for the reasons outlined at 

the hearing and in this Memorandum Opinion, this Court ruled at the hearing 

that 

(1) CB Theater is not required to pay Lakeside rent for the time that the 

Lakeside Theater was closed.

(2) To the extent the Lakeside Lease is not rejected, the lease term is 

extended for an amount of time equal to the time the Lakeside Theater was 

closed under state law. 

(3) As for the balance of the lease payments, that is, from June 5, 2020 

forward, those are payable in full and, therefore, are unpaid administrative 

expenses. 

(4) Going forward, CB Theater will be required to make the full lease 

payments in accordance with the terms of the Lakeside Lease until the 

lease is rejected, or the parties come to other terms.19

# # #

19 As the Court noted at the hearing, this ruling is specific to the Lakeside Lease, Florida law, 

and this theater. The circumstances regarding full closure and reopening may differ from lease 

to lease and certainly from state to state. Therefore, the Court wants to make clear that parties 

should not assume that the findings and the holdings of this particular dispute will necessarily 

translate to litigation involving other leases.

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Copy furnished to:

Jason A. Weber, Esq.

Attorney Weber is directed to serve a copy of this Order on interested parties who 

do not receive service by CM/ECF, and file a proof of such service within two (2) 

business days from entry of the Order.

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