APPEAL FROM ST. JOSEPH COUNTY SUPERIOR COURT, The Honorable Jeanne J. Swartz, Judge, Cause No. P-8081
Staton, J., Robertson, J., Concurs. Hoffman, J., Concurs With Opinion.
Hanover (defendant below) appeals the trial court's denial of its motion to dismiss.
Hanover is the owner of certain business premises located in
a K-Mart Shopping Center in South Bend. Anderson is a corporation which sought to operate a liquor store in that location. On February 23, 1984, Hanover and Anderson entered into a nine-year, eleven-month lease to begin on May 1, 1984. Hanover agreed to remove tenant Discount Liquors before that date. On July 18, 1984, Discount Liquors still occupied the space. Thus, Anderson filed the following complaint:
COMPLAINT FOR BREACH OF CONTRACT AND LEASE
Comes now Robert C. Anderson, Inc., by counsel, and for its complaint against Defendants hereby states:
1. That Plaintiff is a corporation, its principal place of business is located in St. Joseph County, Indiana.
2. Defendant Hanover Logansport, Inc. is the owner of real property located in St. Joseph County, Indiana, commonly known as the K-Mart Shopping Center, South Bend, Indiana and Spatz and Company is the leasing agent of the property for the owner.
3. That on February 23, 1984 the Defendant entered into a lease through its agent Spatz and Company, with Plaintiff, a copy of the lease is attached hereto as Exhibit "A".
4. That the lease was for a period of nine years, eleven months, commencing May 1, 1984 for the space at the K-Mart Plaza, South Bend, Indiana now occupied by Discount Liquors, the address being 1222 Western Avenue.
5. That Defendants agreed to remove the present tenant, Discount Liquors, a retail liquor, beer and wine vendor, from the leased space prior to May 1, 1984; but has refused to remove said tenant and instead has renewed the lease with said tenant.
6. That Plaintiff informed Defendants that prior to transfer of a liquor license it presently held, the present tenant, Discount Liquors, had to be evicted or removed from the premises before the local alcoholic beverage commission would approve said transfer and if such license was denied for the above reason, Plaintiff was foreclosed from applying for a transfer of license to that location for one year.
7. That Defendants refused and continues to refuse to remove said tenant from the premises so that Plaintiff could proceed to apply for and receive approval of the local Alcoholic Beverage Commission for the transfer of its liquor license.
8. That Defendants have breached the terms of the lease by failing to provide occupancy to Plaintiff as required by the lease attached hereto.
9. That Plaintiff desires to enforce the terms of said lease and to obtain occupancy as soon as possible or in the alternative is entitled to loss of profits for the term of the lease in the amount of Five Hundred Thousand Dollars ( $500,000.00).
10. That Plaintiff relied on the Defendants representations and contract and agreement as set forth in the lease and Plaintiff relinquished rights to occupy another store in a similar location, and the right to reoccupy said store has been lost by the Plaintiff.
WHEREFORE, Plaintiff hereby prays for judgment against defendant in the amount of Five Hundred Thousand Dollars ( $500,000.00) of lost profit or in the alternative an order of the Court granting occupancy pursuant to the lease of February 23, 1984 for the Plaintiff.
Before trial, on February 7, 1985, Hanover tendered in writing an offer of real estate to Anderson. It stated:
OFFER OF REAL ESTATE TO PLAINTIFFS
COMES NOW the defendant Hanover Logansport, Inc. and Spatz & Company, by counsel, and pursuant to Trial Rule 68 of the Indiana Rules of Procedure hereby tenders to the plaintiff Robert C. Anderson, Inc. the premises leased to Plaintiff Robert C. Anderson, Inc. on February 23, 1984, pursuant to the terms and conditions of said lease attached to the plaintiff's complaint as Exhibit "A."
Anderson accepted in writing the offer of real estate on February 18, 1985. The acceptance stated:
CONDITIONAL ACCEPTANCE OF OFFER OF REAL ESTATE
COMES NOW the Plaintiff, ROBERT C. ANDERSON, INC., and pursuant to T.R. 68 hereby accepts the offer of real estate to Plaintiff, subject to the conditions set forth in said lease being that Plaintiff shall first obtain the approval of the Indiana Alcohol Beverage Commission to transfer a liquor license to the leased premises and ...