Bitler Inv. Venture Ii Llc v. Llc
| Decision Date | 11 March 2011 |
| Docket Number | Cause No. 1:04–CV–477–TS. |
| Citation | 779 F.Supp.2d 858 |
| Parties | BITLER INVESTMENT VENTURE II, LLC, Bitler Investment Venture III, LLC, Bitler Investment Venture V, LLC, Bitler Investment Venture VI, LLC, Melching Investment Venture II, LLC, Melching Investment Venture III, LLC, Melching Investment Venture V, LLC, Melching Investment Venture VI, LLC, and Two Portland Properties # 1, LLC, Plaintiffs,v.MARATHON ASHLAND PETROLEUM, LLC, Speedway SuperAmerica, LLC, and Marathon Oil Company, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
OPINION TEXT STARTS HERE
Frederick D. Emhardt, George M. Plews, J. Michael Bowman, Plews Shadley Racher & Braun, Indianapolis, IN, for Plaintiffs.Barbara J. Meier, Hamish S. Cohen, Barnes & Thornburg LLP, Indianapolis, IN, for Defendants.
In this lawsuit, the Plaintiffs seek recovery under the theories of breach of contract and waste for alleged damage to fourteen different pieces of commercial property in Indiana, Michigan, and Ohio. The Defendants and/or their predecessors in interest leased several gasoline stations from the Plaintiffs and/or their predecessors in interest, and the Plaintiffs claim that the Defendants and their predecessors in interest neglected and destroyed the leased commercial properties and thereby injured the Plaintiffs' rights and interests in the properties. As to some of the properties, years before this lawsuit was instituted, the parties' predecessors in interest entered into written agreements cancelling their lease agreements involving the properties and releasing the Plaintiffs, the Defendants, and their predecessors in interest from all claims arising out of or in connection with the leases.
This matter is before the Court on a Motion for Partial Summary Judgment [ECF No. 125] filed by the Defendants that seeks judgment on the Plaintiffs' claims as to three Michigan properties. Also before the Court is the Defendants' Motion to Strike [ECF No. 172] certain evidentiary materials submitted by the Plaintiffs. These motions are fully briefed and ripe for ruling.
On December 17, 2004, the Plaintiffs instituted this lawsuit. In their twenty-eight count Complaint [ECF No. 1], they named Marathon Ashland Petroleum as the Defendant. On January 21, 2005, they filed an Amended Complaint [ECF No. 17], adding Speedway SuperAmerica, LLC and Marathon Oil Company as additional Defendants. The Plaintiffs premise this Court's subject-matter jurisdiction on diversity of citizenship pursuant to 28 U.S.C. § 1332. On February 28, 2005, the Defendants filed their Answer [ECF No. 34], and on March 15, they filed their Amended Answer [ECF No. 40].
On July 31, 2007, the Defendants filed their Motion for Partial Summary Judgment on All Issues Regarding the Hillsdale, Michigan (Counts 11 and 12), Monroe, Michigan (Counts 13 and 14), and Sturgis, Michigan (Counts 27 and 28) Properties [ECF No. 125], a Brief in Support [ECF No. 126], a Submission of Evidence [ECF No. 127] (with attached Exhibits), and an Appendix/Statement of Material Facts [ECF No. 128]. Counts 11 and 12 of the Amended Complaint relate to commercial property in Hillsdale, Michigan, which is owned by Plaintiffs Bitler Investment Venture V, LLC and Melching Investment Venture V, LLC. Counts 13 and 14 of the Amended Complaint relate to commercial property in Monroe, Michigan, which is owned by Plaintiffs Bitler Investment Venture VI, LLC and Melching Investment Venture VI, LLC.1 Counts 27 and 28 of the Amended Complaint relate to commercial property in Sturgis, Michigan, which is owned by Plaintiffs Bitler Investment Venture V, LLC and Melching Investment Venture V, LLC. In their First Amended Complaint, the Plaintiffs allege generally that the Defendants left these three properties in a damaged condition with remaining environmental uncertainties and that the Defendants returned the properties to the owners in a condition that was both unsaleable and untenantable at fair market rates. In their breach of contract claims (Counts 11, 13, and 27), the Plaintiffs allege that the Defendants failed to perform their obligations under the commercial lease agreements and that by their breach they have caused the Plaintiffs to suffer damages. In their waste claims (Counts 12, 14, and 28), the Plaintiffs allege that the Defendants occupied the subject properties under valid and binding lease agreements, destroyed, misused, altered, mutilated, and damaged the properties, and left the properties in a damaged condition, that the Plaintiffs have had to spend their own monies to restore the properties, that the Plaintiffs have suffered damages in the value of the properties, and that the Plaintiffs are entitled to double the amount of their actual damages under Michigan Compiled Laws § 600.2919.
On August 24, the Plaintiffs filed a Response [ECF No. 152] and a Submission of Evidence [ECF No. 153] (with attached Exhibits). On September 24, the Defendants filed a Reply [ECF No. 171] and evidentiary materials. Also on September 24, the Defendants also filed a Motion to Strike Portions of the Affidavit of Philip Rodenbeck and the First Affidavit of J. Maxine Melching in Its Entirety [ECF No. 172] and a Brief in Support [ECF No. 173]. On October 12, the Plaintiffs filed a Response [ECF No. 184], and on October 26, the Defendants filed a Reply [ECF No. 188].
The Defendants' Motion for Partial Summary Judgment on All Issues Regarding the Hillsdale, Michigan (Counts 11 and 12), Monroe, Michigan (Counts 13 and 14), and Sturgis, Michigan (Counts 27 and 28) Properties is the third in a series of summary judgment motions filed by the parties that together seek summary judgment on each of the twenty-eight claims asserted by the Plaintiffs. The Defendants have also filed a series of motions in limine and motions to strike. This Opinion and Order addresses only the third of these summary judgment motions and one of the motions to strike filed by the Defendants.
The Federal Rules of Civil Procedure provide that a court shall grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when “ ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” AA Sales & Assocs. v. Coni–Seal, Inc., 550 F.3d 605, 608–09 (7th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court's role on summary judgment is not to weigh the evidence, make credibility determinations, or decide which inferences to draw from the facts, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Washington v. Haupert, 481 F.3d 543, 550 (7th Cir.2007); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). A court in ruling on a summary judgment motion construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. AA Sales & Assocs., 550 F.3d at 609.
On December 1, 1968, George O. and Mary Eleanor Bitler and Max E. and J. Maxine Melching entered into a lease agreement entitled “Indenture of Lease” with Progressive Oil Company, Inc., involving the subject property in Hillsdale, Michigan, which the Bitlers and the Melchings owned. On October 1, 1966, George O. and Mary Eleanor Bitler and Max E. and J. Maxine Melching entered into a lease agreement entitled “Indenture of Lease” with Progressive Oil Company, Inc., involving the subject property in Sturgis, Michigan, which the Bitlers and the Melchings owned. The record before the Court does not appear to include a similar indenture of lease for the Monroe property from the 1960s or 1970s, but a ledger sheet in the record suggests that Mr. Bitler and Mr. Melching had begun leasing the Monroe property to Progressive Oil Company for use as a gasoline station as early as 1971. At times during this period, George Bitler and Max Melching were officers of Progressive Oil Company. At some point, which is not critically important to the present issues in this case, Rock Island Refining Company acquired Progressive Oil Company, and eventually Marathon Oil Company acquired Rock Island Refining Corporation and its wholly-owned subsidiary or affiliate R.I. Marketing Company, Inc. The Hillsdale, Monroe, and Sturgis properties were used as retail gasoline stations.
On October 27, 1983, George O. Bitler and Max E. Melching entered into separate lease agreements entitled “Indenture of Lease” with R.I. Marketing, Inc., involving the Hillsdale, Monroe, and Sturgis properties. These leases were for eleven-year terms, running from December 1, 1983, to November 30, 1994, and included renewal options. The leases included the following term regarding use of the leased premises: “During the lease term, the Lessee shall use the leased premises in a careful and proper manner and for lawful purposes only, and shall, at its own expense, comply with any and all applicable statutes, ordinances, rules and regulations relating to the occupancy or use of the leased premises.” (Third Gilbert Aff., Ex. A–4 at 4, Ex. A5 at 3–4, & Ex. A–6 at 4.) Another term of the lease agreements provided in part as follows regarding buildings and improvements: “No building or improvement now or hereafter located or constructed on the leased premises shall be removed or materially altered (except by way of addition) without the prior written consent of the Lessors, except that existing buildings or improvements may be replaced, rehabilitated or restored if the resulting improvements are worth at least as much after the replacement, rehabilitation or restoration as before.” (Third Gilbert Aff., Ex. A–4 at 6–7, Ex. A–5 at 6,...
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